Thrasher Construction, Inc. v. Gibbs Residential, L.L.C.

197 So. 3d 283, 2015 La.App. 4 Cir. 0607, 2016 La. App. LEXIS 1316, 2016 WL 3557110
CourtLouisiana Court of Appeal
DecidedJune 29, 2016
DocketNo. 2015-CA-0607
StatusPublished
Cited by21 cases

This text of 197 So. 3d 283 (Thrasher Construction, Inc. v. Gibbs Residential, L.L.C.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thrasher Construction, Inc. v. Gibbs Residential, L.L.C., 197 So. 3d 283, 2015 La.App. 4 Cir. 0607, 2016 La. App. LEXIS 1316, 2016 WL 3557110 (La. Ct. App. 2016).

Opinion

SANDRA CABRINA JENKINS, Judge.

| ]Gibbs Residential, L.L.C. (“Gibbs”) appeals the trial court’s March 19, 2015 judgment granting the peremptory exception of peremption filed by Thrasher Construction, Inc. (“TCI”), Thrasher Waterproofing Corporation (“TWC”), and William Thrasher (collectively “Thrasher”), and dismissing with prejudice Gibbs’s recon-ventional demand against TCI and third-party demand against TWC and William Thrasher. Upon review of the record in light of the applicable law, we find no error in the trial court’s judgment granting the exception of peremption and dismissing with prejudice Gibbs’s claims in its recon-ventional demand and third party demand. However, as we discuss initially, we find that the March 19,- 2015 judgment is a partial judgment that does not comply with the requirements of La. C.C.P. art. 1915(B) for the designation of a final, ap-pealable judgment. Consequently, for the reasons that follow, we convert the appeal to a supervisory writ, we grant the writ, and we affirm the trial court’s March 19, 2015 judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 2006, Gibbs entered into a contract with Canal Condominium Development, L.L.C. to act as the general contractor for the 12011 aCanal Condominiums Project (“the Project”). The Project entailed the renovation and redevelopment of two buildings, located at 1201 Canal Street and 120Í Iberville Street in New Orleans, to be converted into residential condominiums. On May 11, 2007, Gibbs entered into a subcontract with TWC for certain work on the Project, including the installation of exterior sealants, waterproofing the buildings, and installation of air/vapor barriers, for the sum of $351,000.

On September 29, 2008, the Project’s architect issued a certificate of substantial completion for the Project, providing in pertinent part:

PROJECT OR PORTION OF THE PROJECT DESIGNATED FOR PARTIAL OCCUPANCY OR USE SHALL INCLUDE:
1. 1201 Canal Street
City Building Permit No.: 05 COM 00246
Substantial Completion of the areas of the 1st and 6th Floor [...].
2. 1201 Iberville Street
City Building Permit No.: 05 COM 00247
Substantial Completion of the Ground Level through the 6th Floor [...].
[287]*287The Work performed under this Contract has been reviewed, and found, to the Architect's best knowledge, information and belief, to be substantially complete. Substantial Completion is _ the stage in the progress of the Work when the Work or designated portion is sufficiently complete in accordance- with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. The date of Substantial Completion of the Project or portion designated above is the date of issuance established by this Certificate, which is also the date of commencement of applicable warranties required by the Contract Documents, except as stated below:

This' certificate of substantial completion was signed by Gibbs and the owner, listed as KFK Real Estate, and it was filed with the Recorder of Mortgages for Orleans Parish on October 28, 2008.

| sIn or around November of 2008, TWC completed the work described in its subcontract with Gibbs and Gibbs paid TWC in full for the work performed.

On March 2, 2009, the Project’s architect issued two additional certificates of substantial completion. The second certificate of substantial completion indicated the portion of the Project designated for occupancy or use as “1201 Canal Street, Floors 2-5.” The second certificate was filed with the -.Recorder of Mortgages for Orleans Parish on March 9, 2009; this certificate was signed by Gibbs and .the architect but does not bear the owner’s signature. The third certificate of substantial completion was issued by the architect to certify the completion of the entire Project. The record indicates that the third certificate of substantial completion was signed by Gibbs and the owner and filed with the Recorder of Mortgages on March 9, 2009.1

In or around December, 2009, Gibbs learned of water intrusion issues in portions of the Project. Gibbs notified TWC of the water intrusion issues for the purpose of having TWC perform remediation and repair work. Gibbs learned, however, that TWC had ceased operations since completing the waterproofing work on the Project.

In July of 2010, Gibbs entered into a subcontract with TCI for. remediation and repair of the water intrusion issues in the Project for the sum of $250,000. Upon completion of the remediation and repair work, TCI claims that Gibbs failed |4to make payment in full for the work.performed. Subsequently, on January 22, 2013, TCI filed a petition for breach of contract and damages against Gibbs alleging Gibbs failed to pay TCI for all of the work performed under the remediation subcontract. TCI sought judgment against Gibbs for the outstanding amounts due under the subcontract and additional fees and penalties for Gibbs’s violation of the Louisiana Prompt Pay Statutes.

On January 14, 2014, Gibbs filed a re-conventional demand against TCI and a third party demand against TWC and William Thrasher. In its reconventional demand and third party' demand, Gibbs alleged that TCI is the alter ego of TWC, which breached its waterproofing subcontract with Gibbs by performing defective work. Gibbs further alleged that William Thrasher engaged in fraud by transferring the assets of TWC to TCI in an attempt to avoid liability for defective work performed by TWC; Based on these allega[288]*288tions, Gibbs asserted that TCI, TWO, and William Thrasher (collectively “Thrasher”) are liable in solido for the defective work performed by TWO, for loss of profits and damages sustained as a result of the defective work, and for bad faith and fraud.

On December 12, 2014, Thrasher filed, a peremptory exception of peremption, arguing that all of Gibbs’s claims against Thrasher were perempted pursuant to La. R.S. 9:2772(A)(1) and should be dismissed. Gibbs filed an opposition to the exception of peremption arguing that its claims were timely under La. R.S: 9:2772(A)(1), and, pursuant to La. R.S. 9:2772(H), the five-year Lperemptive period did not apply to Gibbs’s claims because Thrasher’s fraud caused the damages alleged in Gibbs’s re-conventional demand and third party demand.

On February 27, 2015, the trial court held a hearing on the peremptory exception of peremption at which evidence was offered and introduced into the record. Based upon the evidence and arguments presented, the trial court found that Gibbs’s claims against Thrasher were per-empted under La. R.S. 9:2772(A)(1) and the exception to the five year peremptive period under La. R.S. 9:2772(H) did not apply to Gibbs’s claims. Accordingly, the trial court granted the peremptory exception of peremption filed by Thrasher and dismissed with prejudice Gibbs’s reconven-tional demand and third party demand.

Gibbs now appeals the trial court’s March 19, 2015 judgment granting the peremptory exception of peremption and dismissing all of Gibbs’s claims against Thrasher.

JURISDICTIONAL ISSUE

Before addressing the merits, we must address whether the March 19, 2015 judgment is final and appealable. “A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. art. 1841.

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Bluebook (online)
197 So. 3d 283, 2015 La.App. 4 Cir. 0607, 2016 La. App. LEXIS 1316, 2016 WL 3557110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrasher-construction-inc-v-gibbs-residential-llc-lactapp-2016.