Bank v. Rayford
247 So. 3d 733
La. Ct. App.2018Background
- Rayford hired Nobles Construction to build three rental houses; construction completed in 2008.
- After tenants moved in, Rayford discovered mold/mildew he alleges resulted from defective construction and contractor failures (permits, inspections, building standards).
- Rayford defaulted on construction-financing promissory notes; Whitney Bank sued him (not at issue here).
- In 2016 Rayford filed a third-party demand against Nobles asserting fraud, breach of contract, and defective construction/torts.
- Nobles filed peremptory exceptions of peremption (La. R.S. 9:2772) and prescription (La. Civ. Code arts. 3492–3493); the trial court sustained the exceptions and dismissed Rayford’s third-party petition.
- On appeal, the court reversed and remanded, holding Nobles failed to carry its evidentiary burden to show peremption or prescription where dates triggering those time bars were not alleged or proven.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rayford’s third-party claims are perempted by La. R.S. 9:2772 (5-year peremptive period for construction claims) | Rayford alleged defects, occupancy by tenants, and fraud; petition did not specify acceptance or occupancy dates so claims not perempted on face of petition | Nobles argued peremption applies and fraud allegations are unsubstantiated and thus do not toll or avoid the peremptive period | Reversed: Court held petition failed to allege acceptance or occupancy dates; without evidence Nobles did not meet its burden to prove peremption, so dismissal was improper |
| Whether Rayford’s tort claims are prescribed under La. Civ. Code arts. 3492–3493 (1-year liberative prescription for delictual actions affecting immovables) | Rayford did not allege date damage occurred or date he knew/should have known of damage; thus not prescribed on face of petition | Nobles asserted a demand letter established knowledge more than one year before filing, making claims prescribed | Reversed: Without evidence (the demand letter was not introduced), Nobles failed to prove prescription; petition not prescribed on its face |
| Burden and proof standard on exceptions of peremption/prescription when no evidentiary hearing is held | Rayford contended allegations must be accepted as true and exceptions fail if dates not alleged | Nobles asserted exceptions could be sustained; relied on extrinsic facts not properly introduced | Court held where no evidence was introduced, the pleadings control and the exceptor (Nobles) must prove dates; absent proof, exceptions cannot be sustained |
| Timeliness of third-party claim under 9:2772A(1)(c) (90-day contribution window) | Rayford argued timing depends on peremptive-period dates not established by Nobles | Nobles contended Rayford’s third-party claim was untimely relative to Whitney Bank’s suit | Court declined to address in detail because Nobles had not proven the underlying peremptive-period dates; no merit shown on this record |
Key Cases Cited
- Quatrevingt v. State through Landry, 242 So.3d 625 (La. App. 1 Cir. 2018) (discussion of peremption and prescription burdens)
- Atain Specialty Ins. Co. v. Premier Performance Marine, LLC, 193 So.3d 187 (La. App. 1 Cir. 2016) (attachments to memoranda are not evidence; absent evidence pleadings govern exceptions)
- Lomont v. Bennett, 172 So.3d 620 (La. 2015) (where no evidence on exceptions, allegations in petition are accepted as true)
- Lemoine Co., LLC v. Durr Heavy Constr., LLC, 206 So.3d 244 (La. App. 1 Cir. 2016) (legislative purpose of La. R.S. 9:2772 to protect contractors from indefinite liability)
- Celebration Church, Inc. v. Church Mut. Ins. Co., 216 So.3d 1059 (La. App. 5 Cir. 2016) (peremptive period begins on recorded acceptance date or, if none recorded within six months of occupancy, on occupancy date)
- Guidry v. Sunset Recreation Club, Inc., 571 So.2d 870 (La. App. 3 Cir. 1990) (acceptance/occupancy timing relevant to commencement of statutory periods)
- Prevo v. State ex rel. Dept. of Public Safety & Corrections, 187 So.3d 395 (La. 2015) (burden-shifting when prescription/peremption appears on face of petition)
- Lauren Plaza Assoc., Ltd. v. Gordon H. Kolb Dev., Inc., 853 F. Supp. 941 (E.D. La. 1994) (acceptance/occupancy distinctions in construction claims)