Maxine Thomas v. Housing Louisiana Now, L.L.C., Tracy F. Robinson, Master Builders & Contractors, L.L.C., Richard J. Mithun, Dean's Air-Condition & Heating, LLC, and Dean Walters

MAXINE THOMAS * NO. 2020-CA-0183

VERSUS *
COURT OF APPEAL
HOUSING LOUISIANA NOW, *
L.L.C., TRACY F. ROBINSON, FOURTH CIRCUIT
MASTER BUILDERS & *
CONTRACTORS, L.L.C., STATE OF LOUISIANA
RICHARD J. MITHUN, *******
DEAN'S AIR-CONDITION &
HEATING, LLC, AND DEAN
WALTERS

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-08574, DIVISION “I-14”
Honorable Piper D. Griffin, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods, Judge Paula A. Brown)

Philip Anthony Franco
ADAMS AND REESE LLP
4500 One Shell Square
New Orleans, LA 70139-6534

COUNSEL FOR PLAINTIFF/APPELLANT

Terese M. Bennett
THE LAW OFFICE OF TERESE M. BENNETT
321 Veterans Memorial Blvd., Suite 205
Metairie, LA 70005

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
SEPTEMBER 30, 2020

RBW

SCJ

PAB

This civil appeal arises from the trial court’s judgment granting an exception

of prescription in favor of Defendant-Appellee, Tracy F. Robinson (“Robinson”),

and dismissing her from the lawsuit with prejudice. One year and one week after

the termination of the underlying contract, Plaintiff-Appellant, Maxine Thomas

(“Appellant”) filed a petition for damages alleging breach of contract against a

limited liability company, as well as intentional interference with a contract against

Robinson, the manager of the limited liability company. Appellant attempted to

extend a ten-year liberative prescription period, which is applicable to a breach of

contract claim, to the claim of intentional inference with a contract, which is a

delictual action subject to a one-year liberative prescription period by asserting that

Robinson was solidarily liable with the limited liability company. For the

foregoing reasons, we affirm the trial court’s judgment granting the exception of

1

prescription in favor of Robinson and dismissing her from the lawsuit with

prejudice.

FACTUAL BACKGROUND

On February 7, 2017, three tornadoes struck New Orleans East and damaged

the residence of Appellant1 located at 4701 Donna Drive; the tornadoes removed

the entire roof, thus rendering her residence uninhabitable. On March 13, 2017,

Appellant entered into a contract with Defendant, Housing Louisiana Now, L.L.C.

(“HLN”), in the amount of $181,517.60, to repair her residence; Appellant paid

HLN $83,597.03 up front. Robinson served as the manager of HLN and contact

person for Appellant with regard to her contract with HLN. Robinson sub-

contracted with Defendant, Master Builders & Contractors, L.L.C. (“Master

Builders”). According to Appellant, the repairs to her home were partially

completed in a deficient and tardy manner. Despite Appellant’s request for the

completion of the repairs, her residence remained uninhabitable. Thus, on August

21, 2017, Appellant terminated her contract with HLN and Master Builders.

Thereafter, Appellant entered into a contract with Dean’s Air-Conditioning &

Heating, L.L.C. (“Dean’s”) to complete the repairs to her residence. Although

Appellant paid Dean’s $42,950.00, Dean’s also failed to complete the repairs.

Ultimately, Appellant spent an additional $76,785.56 to complete the repairs to her

residence.

1
Appellant is a seventy-eight (78) year old widow.

2

PROCEDURAL HISTORY

On August 28, 2018, Appellant filed a petition for damages against HLN,

Robinson, Master Builders, Richard J. Mithun (“Mithun”) (manager of Master

Builders), Dean’s, and Dean Walters (“Walters”) (manager of Dean’s). In the

petition for damages, Appellant alleged claims for breach of contract by non-

performance, defective performance, and delay in performance against HLN,

Master Builders, and Dean’s. Appellant also alleged claims of intentional

interference with a contract and solidary liability against Robinson, Mithun, and

Walters. Appellant alleged solidary liability between HLN and Master Builders

and sought the return of the $83,597.03. Appellant sought the return of $42,950.00

from Dean’s. Appellant filed suit against, inter alia, Robinson and alleged that as

an officer of HLN, Robinson intentionally interfered with the contract between

Appellant and HLN, which caused HLN to breach its contract with Appellant.

Appellant further alleged that Robinson is solidarily liable2 with HLN for the

return of the $83,597.03.

2
La. C.C. art. 2324 provides,

A. He who conspires with another person to commit an intentional or willful act is
answerable, in solido, with that person, for the damage caused by such act.

B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused
by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall
not be liable for more than his degree of fault and shall not be solidarily liable with any
other person for damages attributable to the fault of such other person, including the
person suffering injury, death, or loss, regardless of such other person’s insolvency,
ability to pay, degree of fault, immunity by statute or otherwise, including but not limited
to immunity as provided in R.S. 23:1032, or that the other person's identity is not known
or reasonably ascertainable.

3

On October 4, 2019, in response to the lawsuit, Robinson filed an exception

of prescription. The exception of prescription came before the trial court for a

hearing on January 10, 2020. At the hearing, Robinson entered into evidence the

March 13, 2017 contract between HLN and Appellant, and the August 21, 2017

notice of termination. Appellant offered no countervailing evidence to dispute the

exception of prescription, but argued that because the breach of contract claim

against HLN had been timely filed and Robinson is liable, in solido, the claim

against Robinson is not prescribed. On January 27, 2020, the trial court granted the

exception of prescription in favor of Robinson and dismissed Robinson from the

lawsuit with prejudice. It is from this judgment that Appellant now appeals.

DISCUSSION

Assignment of Error

On appeal, Appellant raises a sole assignment of error: whether the trial

court erred in granting the exception of prescription in favor of Robinson and

dismissing Robinson from the lawsuit with prejudice.

Standard of Review

This Court has explained:

“A peremptory exception generally raises a purely
legal question.” Wells Fargo Fin. Louisiana, Inc. v.
Galloway, [20]17-0413, p. 7 (La. App. 4 Cir. 11/15/17),
231 So.3d 793, 799-800. However,
the standard of review of the trial court’s ruling on a
peremptory exception of prescription depends on whether
evidence is introduced at the trial on the exception. Id.

C. Interruption of prescription against one joint tortfeasor is effective against all joint
tortfeasors.

4

When no evidence is introduced, a de novo standard
applies to determine whether the trial court’s decision
was legally correct; and, “[i]n this context,
‘the exception of prescription must be decided on the
facts alleged in the petition, which are accepted as
true.’” Id., [20]17-0413, p. 8, 231 So.3d at 800
(quoting Denoux v. Vessel Mgmt. Servs., Inc., [20]07-
2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88). However,
when evidence is introduced, then the manifestly
erroneous standard of review applies. Wells Fargo,
[20]17-0413, p. 8, 231 So.3d at 800.

Wright v. State on Behalf of Alleyn, 2019-0499, p. 3 (La. App. 4 Cir. 8/5/20), ---

So.3d ---.

A review of the record on appeal reveals that at the January 10, 2020 hearing

on the exception of prescription, Robinson introduced into evidence the March 13,

2017 contract between HLN and Appellant and the August 21, 2017 notice of

termination. Accordingly, this Court employs the manifest error standard of

review. As such, “an appellate court cannot reverse the trial court’s findings if the

findings are reasonable in light of the record reviewed in its entirety, even if the

appellate court would have weighed the evidence differently.” Perniciaro v.

McInnis, 2019-0671 (La. App. 4 Cir. 4/1/20), 293 So.3d 1144, 1151, writ

denied, 2020-00492 (La. 7/2/20), 297 So.3d 767 (internal citations omitted).

“Additionally, the standard controlling the review of the exception of prescription

requires the appellate court to strictly construe the statutes against prescription and

in favor of the claim that is said to be extinguished.” Robinson v. Westin Hotel,

2012-1454, p. 4 (La. App. 4 Cir. 3/20/13), 177 So.3d 715, 718.

Thus, based on the aforementioned, we review the trial court’s decision

using the manifest error standard of review.

5

Analysis

“According to the civilian tradition, prescription is a means of acquiring real

rights or of losing certain rights as the result of the passage of time.” Marjorie

Nieset Neufeld, Prescription and Peremption-the 1982 Revision of the Louisiana

Civil Code, 58 Tul. L. Rev. 593 (1983). Pursuant to La. C.C. art. 3447,

“[l]iberative prescription is a mode of barring actions as a result of inaction for a

period of time.” The Louisiana Supreme Court, in Cichirillo v. Avondale Indus.,

Inc., explained that “[t]he fundamental purpose of prescription statutes is to afford

a defendant economic and psychological security if no claim is made timely and to

protect the defendant from stale claims and from the loss or non-preservation of

relevant proof.” 2004-2894, p. 9 (La. 11/29/05), 917 So.2d 424, 430.

Prescription of Contract and Delictual Actions

“The nature of an action determines the applicable prescriptive period.” Russ

v. City of New Orleans, 2019-0579, p. 3 (La. App. 4 Cir. 8/28/19), 279 So.3d 1006,

1008, writ not considered, 2019-01539 (La. 11/19/19), 282 So.3d

1063, reconsideration denied, 2019-01539 (La. 1/22/20), 291 So.3d 1039 (internal

citations omitted). Accordingly, “[t]he nature of a cause of action must be

determined before it can be decided which prescriptive term is applicable. The

character of an action disclosed in the pleadings determines the prescriptive period

applicable to that action.” Albe v. City of New Orleans, 2014-0186, p. 8 (La. App.

4 Cir. 9/17/14), 150 So.3d 361, 367 (internal citations omitted).

“For prescription purposes, the nature of an obligation is either contractual, quasi-

6

contractual, delictual, quasi-delictual, or legal.” Landis & James Const. Co. v. Gee

Cee Corp., 1995-1927, p. 2 (La. App. 4 Cir. 2/15/96), 669 So.2d 1265, 1266

(internal citations omitted). At issue here is the prescriptive period relative to

contractual and delictual actions. The Louisiana Supreme Court, in Roger v.

Dufrene, explained that “[a]n action in tort is governed by

the prescriptive period of one year while an action on a contract is governed by the

ten year prescriptive period for personal actions.” 613 So.2d 947, 948 (La.1993).

The Louisiana Supreme Court, in DePhillips v. Hosp. Serv. Dist. No. 1 of

Tangipahoa Par., has explained the following:

“The mere fact that the circumstances arose in the
context of a contractual relationship does not make the
cause of action contractual.” Thomas v. State Employees
Group Benefits Prog., [20]05-0392, p.5 (La. App. 1 Cir.
3/24/06), 934 So. 2d 753, 757. See also Roger, 613 So.
2d at 948 (citing, inter alia, Kozan v. Comstock, 270 F.2d
839, 844-45 (5th Cir. 1959 (Wisdom, J.)); Stewart, supra,
2016 WL 1715192, at *5 (“[T]he existence of a contract
between the parties is not determinative.”); Ronald J.
Scalise, Jr., 6 La. Civ. L. Treatise, Law of Obligations §
16.31 (2d ed. 2019) (where “the contract is not the basis
for the wrongdoing party’s liability but only
the occasion for the commission of that party’s tort, ...
the outcome of the dispute should be governed by the
rules of delictual, rather than contractual, liability”).
Thus, courts apply a delictual prescriptive period where,
as here, the cause of action is delictual in nature.

2019-01496, p. 11 (La. 7/9/20), --- So.3d ---, reh’g denied, 2019-01496 (La.

9/9/20). Although the alleged claims in the petition for damages arise from the

contract between HLN and Appellant, the only claim against Robinson is

intentional interference with a contract. The Louisiana Supreme Court, in 9 to 5

7

Fashions, Inc. v. Spurney, explained that intentional interference with a contract is

a delictual action. 538 So.2d 228, 232 (La.1989).

Accordingly, we find that the claim of intentional interference with a

contract asserted by Appellant against Robinson is a delictual action subject to a

one-year prescriptive period. Because Appellant filed the petition for damages one

year and one week after the termination of the contract, the period during which

Appellant alleges that Robinson committed the tortious conduct, the claim against

Robinson is prescribed. Notwithstanding, we next address Appellant’s allegation

that Robinson is liable, in solido, with HLN.

Solidary Liability

Appellant asserted that Robinson intentionally interfered with the contract

with HLN and thus, is solidarily liable for HLN’s breach of the contract. Appellant

argues that the alleged claim for intentional inference with a contract has not

prescribed because it is subject to ten-year liberative prescription pursuant to La.

C.C. arts. 3499 and 3450. Appellant concedes that intentional interference with a

contract is a delictual action subject to one year liberative prescription. However,

Appellant argues that although Robinson’s liability sounds in tort and HLN’s

liability sounds in contract, the obligations are solidary pursuant to La. C.C. art.

1797.3 Appellant further argues that pursuant to La. C.C. arts. 19794 and 3503,5 the

petition for damages interrupted prescription as to all solidary obligors.

3
La. C.C. art. 1797 provides, “[a]n obligation may be solidary though it derives from a different
source for each obligor.”
4
La. C.C. art. 1799, “[t]he interruption of prescription against one solidary obligor is effective
against all solidary obligors and their heirs.”

8

Pursuant to La. C.C.P. art. 927(A) (1)6 and La. C.C. art. 3452,7 Robinson

filed an exception of prescription on October 4, 2019, and argued that the only

alleged claim against Robinson was intentional interference with a contract, which

is an intentional tort subject to a one-year liberative prescription, pursuant to La.

C.C. 3492.8 Robinson concedes that Appellant attempted to state a breach of

contract claim against HLN and Master Builders; however, no contractual

relationship exist between Appellant and Robinson. Further, Robinson rejects

Appellant’s conclusory argument that Robinson is liable, in solido. The Louisiana

Supreme Court, in Glasgow v. PAR Minerals Corp., explained that “civilian

methodology and the Civil Code again compel us to reject the proposition ‘that

parties cannot be solidarily liable unless their liability is based upon the same cause

of action’ and we likewise affirm the principle that for purposes of prescription,

parties ‘are solidarily liable to the extent that they share coextensive liability to

repair certain elements of the same damage.’” 2010-2011 (La. 5/10/11, 12-13), 70

So.3d 765, 772 (citing Williams v. Sewerage & Water Bd. of New Orleans, 611

So.2d 1383, 1389 (La.1993)). Moreover, the Louisiana Supreme Court, in Younger

5
La. C.C. art. 3503, “[w]hen prescription is interrupted against a solidary obligor, the
interruption is effective against all solidary obligors and their successors.”
6
La. C.C.P. 927 lists objections properly raised by peremptory exception.
7
La. C.C. art. 3452 provides, “[p]rescription must be pleaded. Courts may not supply a plea of
prescription.”
8
La. C.C. art. 3492 provides, “[d]elictual actions are subject to a liberative prescription of one
year. This prescription commences to run from the day injury or damage is sustained. It does
not run against minors or interdicts in actions involving permanent disability and brought
pursuant to the Louisiana Products Liability Act or state law governing product liability actions
in effect at the time of the injury or damage.”

9

v. Marshall Indus., Inc., explained that “if the plaintiff’s basis for claiming

interruption of prescription is solidary liability between two or more parties, then

the plaintiff bears the burden of proving that solidary relationship.” 618 So.2d 866,

869 (La.1993). At the hearing, Appellant did not introduce evidence to prove that a

solidary relationship existed between HLN and Robinson; Appellant did nothing

more than offer a conclusory assertion of solidary liability between HLN and

Robinson in the petition for damages. As such, Appellant failed to meet her burden

of proving the existence of a solidary relationship.

Robinson argues that, pursuant to La. R.S. 12:1320(B), as the manager of

HLN, a limited liability corporation, Robinson is not liable, in solido, with HLN.

Moreover, Robinson argues that Appellant mischaracterized the claim in an

attempt to “resurrect” a prescribed tort claim. This Court, in Streiffer v. Deltatech

Constr., LLC, explained that “[a] limited liability company is a business entity

separate from its members and its members’ liability is governed solely and

exclusively by the law of limited liability companies. ‘The fact that a person is the

managing member of a limited liability company and/or has a significant

ownership interest therein does not in itself make that person liable for its debts.’”

2018-0155, pp. 7-8 (La. App. 4 Cir. 10/10/18), writ denied, 2018-2107 (La.

2/18/19), 263 So.3d 1154 (internal citations omitted). Pursuant to La. C.C. Art. 24,

limited liability companies, such as HLN, and its members, such as Robinson, are

considered wholly separate entities. Ogea v. Merritt, 2013-1085, p. 6 (La.

12/10/13), 130 So.3d 888, 894-95. Further, pursuant to La. R.S. 12:1320(B), “no

10

member, manager, employee, or agent of a limited liability company is liable in

such capacity for a debt, obligation, or liability of the limited liability company.”

Further, pursuant to La. R.S. 12:1320(C), “[a] member, manager, employee, or

agent of a limited liability company is not a proper party to a proceeding by or

against a limited liability company, except when the object is to enforce such a

person’s rights against or liability to the limited liability company.” Based on the

record before us, Robinson, as a manager of the limited liability company, cannot

be liable, in solido; Appellant offered no evidence to rebut the general rule of

limited liability.

At the hearing on the exception of prescription, Appellant failed to meet her

burden of rebutting prescription on its face. Appellant’s alleged claim of

intentional interference with a contract against Robinson is a delictual action

subject to a one-year liberative prescription, which had prescribed because the

petition for damages was filed one year and one week after the termination of the

contract and after the alleged tort had occurred. Moreover, the ten-year prescriptive

period applicable to breach of contract claims does not extend to the claim of

intentional interference with a contract because Robinson is not liable, in solido,

with HLN. Accordingly, we find that the trial court did not err in granting the

exception of prescription in favor of Robinson and dismissing Robinson from the

lawsuit with prejudice.

11

DECREE

For the aforementioned reasons, we affirm the trial court’s judgment

granting the exception of prescription in favor of Robinson and dismissing

Robinson from the lawsuit with prejudice.
AFFIRMED

12