Thrasher Construction, Inc. v. Gibbs Residential, L.L.C.
197 So. 3d 283
La. Ct. App.2016Background
- Gibbs contracted with TWC (waterproofing subcontract, May 2007) and later with TCI (remediation subcontract, July 2010) for work on Canal Condominiums in New Orleans.
- A certificate of substantial completion was recorded Oct. 28, 2008 for portions of the project (including 1201 Iberville and parts of 1201 Canal); additional certificates were recorded March 9, 2009, including a final certificate.
- Gibbs paid TWC in full around November 2008; water intrusion issues were later discovered and remediated by TCI in 2010, which Gibbs allegedly failed to fully pay.
- TCI sued Gibbs for unpaid remediation work (filed Jan. 22, 2013); Gibbs filed a reconventional demand and third-party demand against TCI, TWC, and William Thrasher (Jan. 14, 2014), alleging defective waterproofing, alter-ego transfer, and fraud.
- Thrasher filed a peremptory exception of peremption arguing La. R.S. 9:2772 barred Gibbs’s claims; trial court granted the exception and dismissed Gibbs’s reconventional and third-party claims with prejudice (Mar. 19, 2015).
- The appellate court converted the appeal to a supervisory writ because the judgment was partial and not properly designated final, granted the writ, and affirmed the trial court’s dismissal on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether registry of a partial certificate of substantial completion (Oct. 28, 2008) constitutes "acceptance of the work by the owner" under La. R.S. 9:2772(A)(1) and starts the 5‑year peremptive period | Gibbs: only registry of acceptance of the entire project (final certificate Mar. 9, 2009) can commence the peremptive period | Thrasher: the Oct. 28, 2008 partial certificate recorded owner acceptance of the portions that included all TWC work, so the 5‑year period began then | Held: Oct. 28, 2008 partial certificate satisfied owner acceptance for TWC’s work; peremptive period commenced then and Gibbs’s claims (filed 2014) are time‑barred |
| Whether Gibbs adequately pleaded fraud to invoke La. R.S. 9:2772(H) and avoid the 5‑year peremption | Gibbs: Thrasher transferred assets and used alter‑ego/asset transfers to avoid liability; fraud exception applies | Thrasher: Gibbs’s fraud allegations are conclusory and lack particularized factual allegations showing fraud caused the damages | Held: Gibbs failed to plead fraud with the particularity required; La. R.S. 9:2772(H) inapplicable, so claims remain perempted |
Key Cases Cited
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (manifest error standard and burden in peremption context)
- Lomont v. Bennett, 172 So.3d 620 (La. 2015) (review under manifest error standard requires whole‑record review)
- Guidry v. Sunset Recreation Club, Inc., 571 So.2d 870 (La. App. 3d Cir. 1990) (statutory commencement of peremptive period tied to recorded acceptance or occupancy)
- Ebinger v. Venus Const. Corp., 65 So.3d 1279 (La. 2011) (purpose and operation of La. R.S. 9:2772 peremptive scheme)
- Shelton v. Standard/700 Associates, 798 So.2d 60 (La. 2001) (requirements for proving causation in fraud claims)