STATE OF LOUISIANA
FIRST CIRCUIT
2024 CA 0212
LAURIE MOSHER wife of/and GORDON MOSHER
VERSUS
WILSERV CORPORATION and ABC INSURANCE COMPANY
Judgment Rendered: SEP 2 7 2024
On Appeal from the 21 st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2022- 0002105, Div. "A"
Honorable Jeffrey Johnson, Judge Presiding
Sarabeth T. Bradley Counsel for Plaintiffs/Appellants, Covington, Louisiana Laurie Mosher and Gordon Mosher
Paula M. Wellons Counsel for Defendant/ Appellee, Lauren Duncan Kelley Wilsery Corporation Covington, Louisiana
C. Kieffer Petree Counsel for Defendant/Appellee, Baton Rouge, Louisiana James River Insurance Company
BEFORE: GUIDRY, C.J., PENZATO AND STROMBERG, JJ. PENZATO, J.
Homeowners appeal from the trial court' s October 18, 2023 judgment
sustaining the peremptory exception of peremption filed by spray insulation
company, finding the homeowners' claim was time-barred under La. R.S. 9: 2772.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Laurie and Gordon Mosher renovated their home to build a seven hundred
square -foot addition in late 2012 or early 2013. In connection with the renovation,
the Moshers contacted Wilsery Corporation to install spray foam insulation in the
addition and in the crawl space of the entire home. On March 26, 2013, Wilsery
provided the Moshers with a proposal stating that open cell insulation would be
sprayed in specified walls and along the roof line of the addition and closed cell
insulation would be sprayed in the crawl space. The proposal stated a lump sum cost
of $6, 635. 00, with no breakdown of costs for materials and labor. After the work
was complete, on April 1, 2013, Wilsery provided an invoice to the Moshers, which
was substantially similar to the proposal.
In early 2021, the Moshers noticed soft spots in the floor of their home. Then,
in August 2021, the Moshers discovered gaps and holes in the spray foam insulation
under their bathroom floor and learned that Wilsery installed open cell insulation
under the home, in the crawl space, when closed cell insulation should have been
used. On July 20, 2022, the Moshers filed suit against Wilsery alleging that it
improperly installed the insulation and installed the wrong product by using a
mixture of open and closed cell insulation where only closed cell insulation was
required. The Moshers sought to recover damages, including the cost of repair.
2 Wilserv' s insurer, James River Insurance Company, was made an additional
defendant in the Moshers' amended petition.'
In response, Wilsery filed a peremptory exception of peremption, asserting
the Moshers' claims were perempted by La. R.S. 9: 2772, a statute providing a five-
year peremptive period for certain types of construction contracts. See La. C. C. P.
art. 927( A)(2); State v. Henderson, 2022- 0405 ( La. App. lst Cir. 12/ 15/ 22),
371 So. 3d 28, 32. James River subsequently filed a peremptory exception of
peremption, joining and adopting Wilserv' s exception to also assert the Moshers'
claims were time-barred by La. R.S. 9: 2772. In opposition to both exceptions, the
Moshers asserted that La. R.S. 9: 2772 only applied to contracts to build, and their
contract with Wilsery did not satisfy this requirement. The Moshers argued that
Wilsery did not construct anything and, instead, performed a service. Thus, the
Moshers asserted La. R.S. 9: 2772 did not apply.
A trial on both exceptions took place in September 2023. After hearing
testimony from Mr. Mosher and admitting Wilserv' s proposal and invoice into evidence, the trial court concluded the Mashers' claims were perempted pursuant to
La. R.S. 9: 2772, finding the contract with Wilsery was a contract to improve
immovable property " and falls under the tenants" of La. R.S. 9: 2772. A judgment
signed on October 18, 2023, sustained the peremptory exception of peremption filed
however, the by Wilsery and dismissed the Moshers' claims with prejudice;
judgment did not contain a ruling on the exception filed by James River.
The Moshers timely appealed from this judgment. In a single assignment of
error, the Moshers assert the trial court manifestly erred when it sustained the
exceptions of peremption and determined the parties' contract was a contract to
build.
The Moshers' original petition named " ABC Insurance Company" as Wilserv' s insurer.
3 JAMES RIVER
In their briefs filed with this court, both the Moshers and James River contend
the trial court granted James River' s exception. However, as noted, the judgment
on appeal is silent as to James River' s exception. Generally, silence in a judgment
of the trial court as to any issue, claim, or demand placed before the court is deemed
a rejection of the claim and the relief sought is presumed to be denied. Seale & Ross,
P.L. C. v. Holder, 2019- 1487 ( La. App. 1st Cir. 8/ 3/ 20), 310 So. 3d 195, 202.
Additionally, an amendment to a final judgment that adds to, subtracts from, or in
any way affects the substance of the judgment, is considered a substantive
amendment, and is generally prohibited under La. C. C.P. art. 1951. This is true even
if the amendment merely expresses the trial court' s actual intention; the trial court' s
written judgment is controlling, even if the trial court intended otherwise. See Locke
v. Madcon Corporation, 2021- 0382 ( La. App. 1st Cir. 12/ 30/ 21), 340 So. 3d 946,
949. Consequently, it is presumed that James River' s exception was denied, and the
October 18, 2023 judgment may not be amended to incorporate a ruling on the
exception.
The judgment' s failure to sustain James River' s exception is not before us on
appeal as James River neither appealed nor filed an answer to the appeal. It is well-
settled that a party who has not appealed or answered the appeal may not seek to
have the trial court' s judgment modified in its favor. Shepherd v. Schedler, 2015-
1750 ( La. 1/ 27/ 16), 209 So. 3d 752, 762 n. 5. See also Williams v. City of Baton
Rouge, 2002- 0339 ( La. App. 1st Cir. 2/ 14/ 03), 848 So. 2d 9, 14 (" an appellate court
cannot amend a judgment in favor of a party who has neither appealed nor
complained by way of an answer to the appeal."). Therefore, we do not consider the
merits of James River' s exception, and our ruling in this opinion is limited to the
exception filed by Wilserv.
M WILSERV
Applicable Law and Standard ofReview
Peremption is a period of time fixed by law for the existence of a right. Unless
timely exercised, the right is extinguished upon the expiration of the peremptive
period. La. C. C. art. 3458; see also Henderson, 371 So. 3d at 32. Peremption statutes
must be strictly construed; courts are required to adopt the construction that
maintains enforcement of the claim, rather than one that bars enforcement. See
Henderson, 371 So. 3d at 33.
Louisiana Revised Statutes 9: 2772 pertinently provides:
A. Except as otherwise provided in this Subsection, no action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an
engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or
administration related to any building, construction, demolition, or work, shall be brought... against any person performing
or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property[.]
b) 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 five years after the improvement has been thus occupied by the owner. Emphasis added.)
Louisiana jurisprudence has held this statute applies only to contracts to build, not
contracts of sale. See Law Enforcement District o,f Jefferson Parish v. Mapp
Construction, LLC, 19- 543 ( La. App. 5th Cir. 5/ 29/ 20), 296 So. 3d 1260, 1266;
Chaisson v. Avondale Industries, Inc., 2005- 1511 ( La. App. 4th Cir. 12/ 20/ 06), 947
So. 2d 171, 196, writ denied, 2007- 0411 ( La. 4/ 5/ 07), 954 So. 2d 145. Additionally,
La. R.S. 9: 2772( A)(1)( b) has been interpreted to mean possession or occupancy. See
Beverly Construction, L.L. C. v. Wadsworth Estates, L.L. C., 2019- 0911 ( La. App. 1 st
5 Cir. 2/ 26/ 20), 300 So. 3d 1, 6. See also Ebinger v. Venus Construction Corp., 2010-
2516 ( La. 7/ 1/ 11), 65 So.3d 1279, 1284 ( finding the peremptive period in La. R.S.
9: 2772 began when the owners took possession of the home or filed an acceptance
of the work). Thus, for the Moshers' claims to be perempted by this statute, ( 1) the
claims must arise out of a construction contract, ( 2) the insulation installation was
either immovable property or an improvement to immovable property, and ( 3) more
than five years must have elapsed since the date the Moshers occupied or possessed
their home. See Vicari v. Window World, Inc., 14- 870 ( La. App. 5th Cir. 5/ 28/ 15),
171 So. 3d 425, 434, writ denied, 2015- 1269 ( La. 9/ 25/ 15), 178 So. 3d 570.
The party pleading peremption bears the burden of proving a cause of action
is perempted. Evidence may be introduced to support or controvert the exception of
peremption when the grounds thereof do not appear from the petition. See La. C. C. P.
art. 931; Herman E. v. Robinson, 2019- 0213 ( La. App. 1st Cir. 12/ 27/ 19), 292 So. 3d
561, 564. When evidence is received at the trial of the exception, the appellate court
reviews the trial court' s factual findings under the manifest error standard. However,
in a case involving no dispute regarding material facts, only the determination of a
legal issue, a reviewing court must apply the de novo standard of review, under
which the trial court' s legal conclusions are not entitled to deference. Herman E.,
292 So. 3d at 564.
Here, the record establishes, and the parties do not dispute, that the Moshers
are the owners and possessors2 of the home at issue and have been since 2013,
2 See La. C. C. arts. 477 and 3421, defining ownership and possession, respectively. " Possession" is also defined as "[ t]he fact of having or holding property in one' s power; the exercise of dominion over property."Black' s Law Dictionary ( 11th ed. 2019). See also Beverly Construction, L.L.C, 300 So.3d at 7. In addition to the Moshers' undisputed ownership, the petition states that the Moshers planned to install new flooring throughout the home they owned as part of the renovation. According to the petition, the flooring was installed after Wilserv' s work was complete. This further establishes the Moshers' possession of the property, particularly the portion of the home where Wilsery installed insulation. See Lauren Plaza Associates, Ltd. v. Gordon K Kolb Developments, Inc., 853 F. Supp. 941, 944 (E. D. La. 1994) ( finding the plaintiffs act of authorizing a lessee to install refrigeration equipment in a portion ofthe premises constituted partial occupancy or possession by the plaintiff.)
101 Wilsery was hired to install spray foam insulation in the Moshers' home, Wilsery
completed the job on or before April 1, 2013, and the Moshers first filed suit against
Wilsery in July 2022. Thus, the issue that must be resolved is whether the undisputed
facts establish that the Mosher/Wilsery contract is governed by the peremptive
period found in La. R.S. 9: 2772, and accordingly, whether the trial court properly
granted Wilserv' s peremptory exception of peremption. We, therefore, apply the de
novo standard of review. See Law Enforcement District ofJefferson, 296 So. 3d at
1268 ( applying the de novo standard of review to determine the nature ofthe contract
where the material facts were undisputed).
The Moshers maintain the contract was a " contract for a service and/ or a
contract to sell." Wilsery asserts the contract was a contract to build, and La. R.S.
9: 2772 applies because the installation of the insulation was an improvement to an
immovable.
Nature of the Contract
Building contracts are defined by La. C. C. art. 2756, which states, "[ t] o build
by a plot, or to work by the job, is to undertake a building or a work for a certain
stipulated price." See Matherne v. Barnum, 2011- 0827 ( La. App. 1st Cir. 3/ 19/ 12),
94 So. 3d 782, 787- 8, writ denied, 2012- 0865 ( La. 6/ 1/ 12), 90 So. 3d 442. A person
who undertakes to make a work may agree either to furnish his work and industry
alone or to furnish also the materials necessary for such a work. La. C. C. art. 2757.
Louisiana courts consider three factors to determine whether a contract is a
contract of sale or a contract to build or to work by the job ( also referred to as a
construction contract). First, in a contract to build, the purchaser has some control
over the specifications of the object. Law Enforcement District ofJefferson Parish,
296 So. 3d at 1267. Mr. Mosher testified that the Moshers made the initial decision
to have the insulation installed as part of their home renovation. They selected where
and when the insulation was to be installed. Additionally, as the trial court noted,
7 the Moshers also had the option to select batt insulation, rather than spray foam.3
However, Mr. Mosher testified that they did not have a " say" in the type of foam
used, whether closed or open cell, or how it was applied.
The second factor considers the timing of the negotiations, which take place
before the object is constructed in a contract to build. Law Enforcement District of
Jefferson Parish, 296 So. 3d at 1267. Mr. Mosher testified that Wilserv' s sales agent
presented the proposal to the Moshers in March 2013, before Wilsery installed the
insulation in April 2013.
Lastly, and most importantly, a building contract contemplates not only that
the builder will furnish the materials, but that he will also furnish his skill and labor
to build the desired object. Law Enforcement District ofJefferson Parish, 296 So. 3d
at 1267- 8. Jurisprudence has consistently held that a contract involving work to be
done on the owner' s land or building is a construction contract (as opposed to a sale)
within the definition of La. C. C. art. 2756, even when the undertaker ( contractor) is
required to furnish some of the materials. Matherne, 94 So. 3d at 788. Mr. Mosher
confirmed that Wilsery was hired to install the insulation; he did not anticipate that
Wilsery would deliver the insulation to be installed by someone else. Mr. Mosher
agreed the purpose of the contract with Wilsery was to have a skilled party, Wilserv,
use its skill and labor to install the spray foam insulation.
Based on these undisputed facts, we agree with the trial court that the
Moshers' contract with Wilsery was a contract to build or to work by the job. See
La. C. C. art. 2756. This conclusion is supported by jurisprudence considering the
distinction between contracts to build and contracts to sell.
In Acadiana Health Club, Inc. v. Hebert, 469 So. 2d 11861 1189 ( La. App. 3d
Cir. 1985), the court of appeal applied the three factors discussed above and
3 We also take judicial notice of the fact that spray foam insulation is not the only type of home insulation generally available. See La. C. E. art. 201. concluded that a contract for the installation of carpeting and linoleum was a contract
to build. The object of the contract was the job of carpeting and flooring a health
club facility, not simply the sale of so many feet of carpet and flooring. Although
the plaintiff did not have any say as to the specifications of the carpet itself, the
plaintiff specified the type of carpeting and flooring to be installed. Most
importantly, the contract called upon the skill of the defendant and its employees to
install the carpeting and flooring. Acadiana Health Club, Inc., 469 So. 2d at 1189.
See also A A Specialty & Supply, Inc. v. Quinn, 411 So.2d 1165, 1166 ( La. App. 1st
1982) ( finding the contract for the sale, delivery, and installation of a fireplace was
a contract to build).
In Vicari, 171 So. 3d at 427, the plaintiffs contracted with Window World for
the purchase and installation of forty-five custom windows for their home, as well
as the removal of the existing aluminum windows. Removal and installation were
performed by a third -party, with whom Window World had a pre- existing contract.
The Vicaris filed suit against Window World after experiencing problems with the
windows, and Window World filed a third -party demand against the installers.
Vicari, 171 So. 3d at 427- 8. The parties disputed the nature of the contracts at issue
and whether the principal demand was prescribed under the law of redhibition ( La.
C. C. art. 2534, et seq) and whether the third -party demand was perempted by La.
R.S. 9: 2772. Vicari, 171 So. 3d at 428- 9.
The court of appeal concluded the Vicari/ Window World contract was a
construction contract, finding the object of the contract was not simply to sell
windows, but to install those windows in the Vicaris' home .4 " To suggest that the
4 In the judgment on appeal in Vicari, the trial court granted Window World' s motion for summary judgment, after finding the Vicari/Window World contract was a sales contract, and dismissed the Vicaris' claims against Window World for the improper window installation and repair as prescribed pursuant to the La. C. C. art. 2534 of the redhibition articles. Vicari, 171 So. 3d at 431. The court of appeal held that the trial court manifestly erred in finding the Vicari/ Window World contract was a contract of sale. Vicari, 171 So. 3d at 433.
I Vicaris' only desire in contracting with Window World was to purchase forty-five
custom windows to be delivered and set aside at their home, is illogical." Vicari, 171
So. 3d at 433. Thus, the court concluded the installation was not incidental to the
sale but was the object of the contract. The court further found the Window
World/ installer contract was also a construction contracts Therefore, both contracts
at issue were governed by La. R.S. 9: 2772. Vicari, 171 So.3d at 434, 436.6
The Moshers argue that La. R.S. 9: 2772 " requires a builder" and cannot apply
to the contract at issue because Wilsery did not build or construct anything.
However, by its clear, unambiguous language, La. R.S. 9: 2772 is not so limited.
When a law is clear and unambiguous and the application of the law does not lead
to absurd consequences, the law must be applied as written. La. C. C. art. 9; see also,
La. R.S. 1: 4; Peoplefor the Ethical Treatment ofAnimals v. Board ofSupervisors of
Louisiana State University, 2023- 01396 ( La. 6/ 28/ 24), 387 So. 3d 527, 540.
The cases cited above also contradict the Moshers' argument that La. R.S.
9: 2772 only applies where something was built. The defendants did not build the
flooring in Acadiana or the windows in Vicari. See also Morris & Dickson Co., Inc.
v. Jones Brothers Co., Inc. 29,379 ( La. App. 2d Cir. 4/ 11/ 97), 691 So.2d 882, 891,
wit denied, 97- 1259 ( La. 9/ 5/ 97), 700 So.2d 509 ( finding a contract to build existed
where the parties agreed the defendant would furnish and install underground
gasoline storage tanks and use its skill and " know how" to supply an underground
storage take system). Similarly, see Chemical Insulation Co., Inc. v. Arco Builders,
5 In the judgment on appeal in Vicari, the trial court applied La. R.S. 9: 2772 to the Window World/ installer contract and sustained the installers' exceptions of peremption. Vicari, 171 So. 3d at 434. The court of appeal concluded that the Window World/ installer contract fell squarely within La. R.S. 9: 2772, and the trial court did not err in applying the statute' s five-year peremptive period to Window World' s third -party demand against the installers and their insurers for indemnity and contribution. Vicari, 171 So. 3d at 435. 6 Courts have also applied the " value test" to determine the nature of a contract. Under the " value test," the court determines whether the labor expended in constructing the item, or the materials incorporated therein, constitute the principal value of the contract. Vicari, 171 So. 3d at 433. The record does not establish the separate value of Wilserv' s labor and the materials; therefore, we do not consider the value test.
10 Inc., 55, 230 ( La. App. 2d Cir. 8/ 9/ 23), 369 So. 3d 483, 487, writ denied, 2023- 01235
La. 11/ 21/ 23), 373 So. 3d 449 (rejecting the argument that La. R.S. 9: 2772 is limited
to claims arising out of deficient work and applying the statute to a subcontractor' s
claim against the contractor to recover the unpaid balance owed pursuant the parties'
contract for roofing services). Consequently, we find no merit in the Moshers'
argument that La. R.S. 9: 2772 " requires a builder."
Improvement to Immovable
The insulation was incorporated into the Moshers' home, an immovable, such
that it became immovable or constitutes an improvement to immovable property under La. R.S. 9: 2772. See Vicari, 171 So. 3d at 434 ( finding the installation of
windows into the plaintiffs' home was an improvement to an immovable.)
Once a home is constructed, it becomes an immovable. See La. C. C. arts. 462
and 463; Dugas v. Cacioppo, 583 So.2d 26, 27 ( La. App. 5th Cir. 1991). Things
incorporated into a building or other construction, so as to become an integral part of it, such as building materials, are its component parts. La. C. C. art. 465.
Similarly, things that are attached to a building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to its
specific use, are its component parts. Component parts of this kind may include doors, shutters, gutters, and cabinetry, as well as plumbing, heating, cooling,
electrical, and similar systems. La. C. C. art. 466.
Like these items, insulation is a material that, according to prevailing usages, serves to complete a residence. See La. C. C. art. 466. Mr. Mosher testified that the
portions of the Moshers' home not included in the scope of Wilserv' s work were
already insulated. He advised Wilsery he needed the addition insulated and " all of
the] house insulated as per standards" and instructed Wilsery to insulate " the areas
that needed insulation." According to the Moshers' petition, the insulation was
installed inside the walls, and they did not discover issues with the insulation until
11 they removed the flooring in their bathroom. The average, ordinary, prudent home
buyer would expect insulation installed into the walls and under the floors of a
residence will be there when he arrives to take possession. See Exxon Corp. v.
Foster Wheeler Corp., 2000- 2093 ( La. App. 1st Cir. 12/ 28/ 01), 805 So. 2d 432, 435,
writ denied, 2002- 0261 ( La. 3/ 28/ 02), 812 So. 2d 633, quoting the " societal
expectation test" as set forth in Equibank v. United States, Internal Revenue Service,
749 F. 2d 1176 ( 5th Cir. 1985). See also American Bank & Trust Co. v. Shel-Boze,
Inc., 527 So. 2d 1052, 1055 ( La. App. 1st Cir. 1988), writ denied, 532 So. 2d 155
La.) ( finding that wired light fixtures and carpet were component parts of a home
upon installation; a reasonable person buying a residence expects finished flooring
to be there when he takes possession).
Thus, we agree with the trial court that La. R.S. 9: 2772 applies to the Moshers'
claims against Wilserv. Because the Moshers failed to assert their claims against
Wilsery before the expiration of the five-year peremptive period, their claims are
time- barred.
DECREE
The October 18, 2023 judgment sustaining the peremptory exception of
peremption filed by Wilsery Corporation is affirmed. All costs of this appeal are
assessed against Laurie and Gordon Mosher.
s112_1111111 ,