Darlene Ordeneaux v. Arkel Food Services, LLC, ABC Insurance Company, Daffney Baldwin, Shriver Investment Properties, LLC, and XYZ Insurance CompanyDarlene Ordeneaux v. Arkel Food Services, LLC, ABC Insurance Company, Daffney Baldwin, Shriver Investment Properties, LLC, and XYZ Insurance Company
Steve Joffrion
Garrett Joffrion
John Kitto
Prairieville, Louisiana
Counsel for Plaintiff/Appellant
Darlene Ordeneaux
Martin E. Golden
Baton Rouge, Louisiana
Counsel for Defendants/Appellees
Ascension Plaza, L.L.C. and Continental Casualty Company
BEFORE: THERIOT, WOLFE, AND HESTER, JJ.
The plaintiff appeals a summary judgment dismissing her claims against the defendants with prejudice. For the reasons set forth herein, we affirm.
FACTS AND PROCEDURAL HISTORY
Ascension Plaza, L.L.C., a Louisiana limited liability company, was formed on September 20, 2006 for the purpose of developing a shopping center. Shortly after
On October 11, 2011, Darlene Ordeneaux visited several stores in the shopping center. While walking to her car, she tripped and fell over an unpainted concrete traffic flow barrier in the shopping center parking lot. Ordeneaux alleges that she sustained serious bodily injuries in this fall, and on October 4, 2012, she filed suit against a number of parties, including the premises owner, Shriver Investments, L.L.C., alleging that the unpainted concrete traffic flow barrier was an unreasonably dangerous condition.
On May 15, 2015, almost four years after the trip and fall accident and over six years after Ascension Plaza, L.L.C. sold the premises, Ordeneaux amended her petition to add Ascension Plaza, L.L.C. and Donald Jarreau, Jr. d/b/a Donnie Jarreau Construction, as defendants. This amended petition alleges that Shriver Investments, L.L.C.1 and/or Ascension Plaza, L.L.C. are the “current owners of the building and/or land and adjacent parking lot,” and that Jarreau “constructed or modified” the premises, “either as owner or contractor.”
Ascension Plaza, L.L.C. and Jarreau filed an exception raising the objection of peremption under
Ascension Plaza, L.L.C. and Continental Casualty Insurance Company filed a motion for summary judgment on May 21, 2020, asserting that no genuine issues of material fact exist and they are entitled to judgment as a matter of law. In support of their motion, they filed Jarreau‘s affidavit, stating that Ascension Plaza, L.L.C. sold
After a hearing, the trial court granted the motion for summary judgment, finding that no factual issues remained and that defendants were entitled to judgment as a matter of law. Ordeneaux‘s suit was dismissed with prejudice, and this appeal followed.
DISCUSSION
Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.
Appellate courts review summary judgments de novo, using the same criteria that govern the trial court‘s consideration of whether summary judgment is appropriate. In re Succession of Beard, 2013-1717, p. 10 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.
In ruling on a motion for summary judgment, the court‘s role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. See Hines v. Garrett, 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is one as to which reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 2004-0806 at p. 1, 876 So.2d at 765-66. A fact is “material” when its existence or nonexistence is essential to the plaintiff‘s cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Id.
The burden of proof on a motion for summary judgment rests with the mover.
Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson v. XYZ Insurance Company, 2016-0745, p. 7 (La. 5/3/17), 226 So.3d 412, 417.
Although the exception of peremption filed by defendants and sustained by the trial court is not included in the record designated on appeal by Ordeneaux, the parties do not dispute that the basis for the trial court‘s finding that Ordeneaux‘s claims were barred by peremption was
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 land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or 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, including but not limited to a residential building contractor as defined in R.S. 37:2150.1:
(1)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(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.
(c) If, within ninety days of the expiration of the five-year peremptive period described in Subparagraph (a) of this Paragraph, a claim is brought against any person or entity included within the provisions of this Subsection, then such person or entity shall have ninety days from the date of service of the main demand or, in the case of a third-party defendant, within ninety days from service of process of the third party demand, to file a claim for contribution, indemnity or a third-party claim against any other party.
(2) If the person performing or furnishing the land surveying services, as such term is defined in R.S. 37:682, does not render the services preparatory to construction, or if the person furnishing such services or the design and planning preparatory to construction does not perform any inspection of the work, more than five years after he has completed the surveying or the design and planning with regard to actions against that person.
B. (1) The causes which are perempted within the time described above include any action:
(a) For any deficiency in the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682, including but not limited to those preparatory to construction or in the design, planning, inspection, or observation
of construction, or in the construction of any improvement to immovable property, including but not limited to any services provided by a residential building contractor as defined in R.S. 37:2150.1(9). (b) For damage to property, movable or immovable, arising out of any such deficiency.
(c) For injury to the person or for wrongful death arising out of any such deficiency.
(d) Brought against a person for the action or failure to act of his employees.
(2) Deficiency, as used in this Section, includes failure to warn the owner of any dangerous or hazardous condition, regardless of when knowledge of the danger or hazard is obtained or should have been obtained.
(3) Except as otherwise provided in Subsection A of this Section, this peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice, and whether brought by the owner or by any other person.
C. If such an injury to the property or to the person or if such a wrongful death occurs during the fifth year after the date set forth in Subsection A, an action to recover the damages thereby suffered may be brought within one year after the date of the injury, but in no event more than six years after the date set forth in Subsection A, even if the wrongful death results thereafter.
D. Actions for the causes enumerated in Sub-section B of this Section, against the persons enumerated in Sub-section A of this Section, shall prescribe by the applicable prescriptive periods established by law for such actions.
E. The peremptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or other possessory interest, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or
obligation of any such person arising out of his possession or control of the property.
F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.
G. Causes of action arising from the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682, if not performed preparatory to construction, which exist prior to September 11, 1981, shall be perempted one year from said date or by the applicable peremptive period established by this Section, whichever is later.
H. (1) The peremptive period provided by this Section shall not apply to an action to recover on a contract or to recover damages against any person enumerated in Subsection A of this Section, whose fraud has caused the breach of contract or damages sued upon. The provisions
of this Subsection shall be retroactive. (2) In any action in which fraud is alleged, that issue shall be decided by trial separate from and prior to the trial of any or all other issues. However, if fraud is alleged in nonresidential contracts in an action commenced after the expiration of the five-year period provided by this Section, and the court determines that the allegation was brought in bad faith and no fraud is found, then the party who made the allegation shall be liable for court costs and attorney fees. If fraud is proven, then the party that has committed the fraud shall be liable for court costs and attorney fees.
(3) Fraud, as used in this Section, shall have the same meaning as provided in Civil Code Article 1953.
I. Nothing in this Section shall be construed as limiting or modifying the non-liability of contractors for destruction or deterioration of, or defects in, any work, as provided in R.S. 9:2771.
After being granted leave to amend her petition, Ordeneaux attempted to set forth claims that she characterizes as “sounding in general negligence” against Ascension Plaza, L.L.C., “as the party who created a hazardous condition.” The allegations of Ordeneaux‘s amended petition are that Ascension Plaza, L.L.C. was the owner of the property at the time the unpainted concrete traffic flow barrier was constructed; neither Jarreau nor Ascension Plaza, L.L.C. contracted with any other party to install the concrete traffic flow barrier on the property; Ascension Plaza, L.L.C. and Jarreau knew or should have known that the concrete traffic flow barrier was present on its premises and amounted to an unreasonably dangerous condition; and Ascension Plaza and Jarreau failed to warn patrons and pedestrians of the unreasonably dangerous condition.
By alleging that Ascension Plaza, L.L.C. and Jarreau did not contract with anyone to construct the concrete traffic flow barrier on their behalf, Ordeneaux seems to again seek to impose liability on Ascension Plaza, L.L.C. for its role in the construction. The trial court has already determined that any such claims are perempted. Further, to the extent that Ordeneaux alleges that Ascension Plaza, L.L.C. failed to warn patrons and pedestrians of the hazardous condition it created, such claims also fall within the five-year peremptive period. See
Regardless of Ordeneaux‘s attempts to characterize her claims as “general negligence” (as opposed to landowner liability), the remaining allegations of her amended petition seek to impose liability on Ascension Plaza, L.L.C. by virtue of its ownership of the property. Such liability is governed by
Ordeneaux argues on appeal that the trial court‘s summary judgment was procedurally improper because it dismissed her suit either on the basis of peremption or failure to state a cause of action, both of which she asserts must be raised by exception, or on grounds first raised in defendants’ reply memorandum. Ordeneaux argues that if the issues had been properly raised by exception, she would have been afforded an opportunity to amend her petition in order to state a cause of action and avoid dismissal. However, as previously noted, Ordeneaux was given the opportunity to amend her petition following the sustaining of the exception of peremption, and she subsequently amended her petition in an attempt to set forth a claim that was not barred by peremption. Regardless of how she characterizes her amended claims, her allegations of liability are either rooted in Ascension Plaza, L.L.C.‘s ownership of the property (and thus governed by article 2317.1) or its role in the construction (and thus time-barred). Ordeneaux is incorrect in her statement that the trial court granted summary judgment on the basis of peremption or failure to state a cause of action. Rather, the trial court found that to the extent that Ordeneaux‘s amended petition set forth claims that did not fall under the peremptive period in
Ordeneaux also alleges that to the extent her amended petition continues to assert a construction defect claim to which
inherent element of fraud. Fraud cannot be predicated upon mistake or negligence, no matter how gross. Schilling, 2012-2105 at pp. 8-9, 186 So.3d at 665. Ordeneaux‘s petition contains no allegations of fraud or fraudulent intent. As such, this assignment of error is without merit.
Finally, Ordeneaux argues that the trial court erred in holding that “the creator of a dangerous thing or condition cannot be liable for the harm it causes to another absent the creator‘s garde over the property at the time of the harm.” This is a mischaracterization of the trial court‘s ruling. The allegations of Ordeneaux‘s amended petition attempted to impose liability on Ascension Plaza, L.L.C. based either on its role in the construction of the unpainted concrete traffic flow barrier or its status as owner of the property during and after construction. While claims for a construction defect do not require proof of garde, any such claims have been held to be perempted under
DECREE
For the reasons set forth herein, the trial court judgment in favor of Ascension Plaza, L.L.C. and Continental Casualty Insurance Company, granting the motion for summary judgment and dismissing the plaintiff‘s claims against them with prejudice, is affirmed. Costs of this appeal are assessed to plaintiff, Darlene Ordeneaux.
AFFIRMED.
THERIOT, J.