Donald G. Lambert Contractor, Inc. v. Parish of Jefferson

700 So. 2d 894, 97 La.App. 5 Cir. 140, 1997 La. App. LEXIS 2237, 1997 WL 572963
Louisiana Court of Appeal·Decided September 17, 1997·No. No. 97-CA-140·Published·Cited by 6 cases

Opinion

IgCANNELLA, Judge.

Plaintiff, Donald G. Lambert Contractor, Inc. (Lambert), appeals from a judgment rendered in favor of third party defendant, State of Louisiana through the Department of Transportation and Development (DOTD), granting DOTD’s exception of prescription and peremption and dismissing Lambert’s claims against DOTD. For the reasons which follow, we affirm.

In November of 1972, after compliance with appropriate bid laws and resolutions of the Parish of Jefferson Council, Lambert entered into a construction contract with the Parish of Jefferson (the Parish). The contract basically required Lambert, as contractor, to perform certain construction work on six intersectional roadways located in Jefferson Parish according to the plans prepared for the project. Lambert performed the work as required. On February 14,1974, the Jefferson Parish Council, by. resolution, accepted |3the project as complete. A Notice of Completion was issued by DOTD on February 25,1974. .

Thereafter, on February 25,1975, Lambert filed suit against the Parish, alleging that it breached its contract with Lambert by fading to resolve utility conflicts and providing outfall drainage on the construction sites, which resulted in costly construction delays. On May 22,1975, the Parish filed an exception to Lambert’s lawsuit on the grounds that- he failed to join an indispensable party, to-wit, DOTD. On March 24, 1980, after a hearing on the exception, the trial court rendered judgment, with reasons, denying the exception.

It appears from the record that, following this ruling until October 18,1995, only minor filings were made every five years. Then, on October 18, 1995, the Parish filed a third party demand against DOTD, denying liability to Lambert but claiming that, if it were liable, then DOTD was liable to the Parish because the Parish had acted merely as an agent of DOTD who had prepared the contracts, supervised and coordinated the work.

On July 25,1996, DOTD filed an exception of prescription and peremption. DOTD argued that under La. C.C. art. 3499, providing a ten year prescriptive period for contract claims, the Parish’s claim had prescribed. DOTD also argued that La. R.S. 9:2772 imposed a ten year peremptive period, following the acceptance of a work project by the owner, precluding thereafter any actions in[896]*896volving deficiencies in surveying, design, supervision of construction or construction of immovables or improvements thereon.

|4On July 31, 1996, the Parish filed a supplemental third party demand claiming that DOTD owed the Parish indemnity and contribution for any recovery Lambert might secure against the Parish.

On August 23, 1996, the trial court, heard the exception and referred the prescription and peremption exceptions to the merits.

On the day of trial, Lambert and the Parish filed a joint motion to continue the trial because they were in the process of working out a settlement that only needed final approval by the Jefferson Parish Council. Pursuant to that settlement, Lambert was paid $400,000 by the Parish and assigned the rights of the Parish against DOTD. Lambert thereafter, with leave of court, filed an opposition to DOTD’s exception of prescription and peremption. Judgment was rendered by the trial court on October 11, 1996, granting the exception- and dismissing Lambert’s claims against DOTD. It is from this judgment that Lambert now appeals.

On appeal Lambert argues that La.R.S. 9:2772 does not apply in this case because it does not apply to the owners of the immovable involved. Lambert also argues that the ten year prescriptive period provided in La! C.C. art. 3499 does not preclude his action because the prescriptive period does not begin to run until the third party plaintiff, the party seeking indemnification, is cast in judgment 1.

DOTD argues, to the contrary, that La. R.S. 9:2772 is applicable in this case because the Parish is considered the owner of the property and not DOTD. Further, the action against DOTD is not in its capacity as the | gowner of the property. Rather, the action against DOTD is based on two contractual claims: (1) for its failure to properly plan, supervise and coordinate the construction project; and (2) for reimbursement as provided by the contract. DOTD also disputes Lambert’s contention on thé prescription issue. DOTD argues that prescription on these contractual claims began to run when Lambert filed his action against the Parish for supplemental costs which he had incurred due to alleged breaches of the contract. Indeed, the record indicates that the Parish attempted to add DOTD as an indispensable party at that time. However, when that effort failed, the Parish allowed any claims it may have had against DOTD to prescribe by not filing the third party claim against DOTD until about twenty years later.

La. R.S. 9:2772, which provides a per-emptive period for actions involving deficiencies in surveying, design, supervision or construction of immovables or improvements thereon, states in pertinent part:

A. No action whether ex contract, ex delicto, or otherwise, including but not limited to, an action for failure to warn, to recover on a contract or to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner;
B. ... This peremptive period shall extend to every demand whether brought by direct action or for contribution or indemnity .or by third party practice, |6and whether brought by the owner or by any other person.

As argued by DOTD and found by the trial court, this statute is directly applicable to the action asserted herein by Lambert, who was assigned the claims of the Parish against DOTD, as the planner, supervisor and coordinator of the construction project between [897]*897Lambert and the Parish. Additionally, as expressly stated in subsection B, it applies to any contractual claim the Parish may have against DOTD for indemnity.

The Parish accepted the project by Jefferson Parish Council resolution- on February 14, 1974 and DOTD issued a Notice of Completion on February 25, 1974. Thus, the project was accepted by the Parish and DOTD at least twenty years before the Parish filed the third party claim against DOTD.

We find no merit in Lambert’s argument that La. R.S. 9:2772 does not apply in this case because DOTD is the owner of the immovable. First, there is no showing that the six intersections in question, located in Jefferson Parish, are owned by the state. Moreover, the limitation in the statute in subsection F, relied on by Lambert, applies when an action is brought against the owner of the property, as owner. In the instant case, the third party claim against DOTD is not as owner of the property, but in their alleged failure to supervise, plan and coordinate the project properly or as contractual indemnitor to the Parish. Accordingly, the action by Lambert against DOTD is, as found by the trial court, barred by La. R.S.

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Donald G. Lambert Contractor, Inc. v. Parish of Jefferson, 700 So. 2d 894, 97 La.App. 5 Cir. 140, 1997 La. App. LEXIS 2237, 1997 WL 572963 (La. Ct. App. 1997).

700 So. 2d 894 (Donald G. Lambert Contractor, Inc. v. Parish of Jefferson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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