David L. McGaha and Melissa B. McGaha v. Franklin Homes, Inc., Gulf Coast Mobile Homes, Inc., Landry Mobile Home Transporters, Inc., and Nta, Inc.

DAVID L. MCGAHA AND * NO. 2021-CA-0244
MELISSA B. MCGAHA
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
FRANKLIN HOMES, INC.,
GULF COAST MOBILE * STATE OF LOUISIANA
HOMES, INC., LANDRY
MOBILE HOME *
TRANSPORTERS, INC., AND
NTA, INC. *
*******

LOBRANO, J. DISSENTS IN PART, CONCURS IN PART, AND ASSIGNS
REASONS.

JCL I concur in part and find that the district court properly dismissed all claims

against Landry Mobile Home Transporters, Inc. However, I would vacate the

portion of the judgment of the district court pertaining to Gulf Coast Mobile

Homes, Inc., Franklin Homes, Inc., and NTA, Inc. and remand for further

proceedings. I find that a trial on the merits is necessary to develop facts relevant

to prescription and peremption1 in this case with respect to these defendants and,

particularly, allegations of contractual fraud.2 This case involves underpinnings of

fraud, bad faith, and misrepresentation throughout the various causes of action set

forth in the McGahas’ petition.3 I am concerned that the district court and the

majority’s opinion conflating a review of causes of action with that of prescription

1
See Allen v. Michaels Dev. Co. I, LP, 20-0330, pp. 7-8 (La. App. 4 Cir. 12/9/20), 312 So.3d
647, 652; Caro v. Bradford White Corp., 96-0120, p. 10 (La. App. 5 Cir. 7/30/96), 678 So.2d
615, 619.
2
La. C.C. art. 1953, et seq.
3
I recognize the importance of foreclosing litigation due to the passage of time; however, in
certain cases, the policies supporting prescription may be outweighed by a need for thorough
legal and factual reviews by the courts. Cases alleging fraud, unequal accessibility, unjust
advantages, and/or bad faith and solidarity of home sellers, designers, and manufacturers are
often those type of cases that require a full evidentiary hearing or trial on the merits in the
interest of justice and the promotion of the common good. Particularly, a determination on these
important issues would promote the general welfare of many coastal communities and residents
in coastal Louisiana residing in modular homes that were designed and manufactured to
withstand hurricane force winds of 140 miles per hour and sold accordingly.

and peremption statutes will cause confusion as to what claims or causes of action

involving fraud and intentional misrepresentation remain. The nature of a cause of

action must be determined before it can be decided which prescriptive or

peremptive term is applicable and whether the facts alleging fraud and

misrepresentation are sufficient to form the basis of an actionable claim and to toll

prescription or to find peremption inapplicable. dela Vergne v. dela Vergne, 99-

0364, p. 8 (La. App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275; Ames v. Ohle, 11-

1540, p. 6 (La. App. 4 Cir. 5/23/12), 97 So.3d 386, 391, decision clarified on

reh’g (7/11/12).

I also note that the issue of whether the evidence presented at the exception

hearing is sufficient to establish fraud or intentional misrepresentation is a question

of fact, and the fact-finder’s determination will not be overturned unless it is

manifestly erroneous or clearly wrong. Without a full evidentiary trial, it is

difficult to perform an appellate review as to whether McGahas’ fraud and

intentional misrepresentation allegations are particularly sufficient to toll

prescription or to find peremption inapplicable. I find that referring these matters to

the merits is warranted in this case.4

4
A defendant may raise the exception of prescription “at any time, including on appeal or after
the close of evidence, but prior to its submission after trial.” Turner v. Hidden Lake, LLC of AL,
14-0240, p. 3 (La. App. 4 Cir. 3/4/15), 163 So.3d 66, 68 (quotation omitted). A district court also
generally has discretion to refer an exception of prescription to the merits. Med. Review
Complaint by Downing, 18-1027, p. 23 (La. App. 4 Cir. 5/8/19), 272 So.3d 55, 69 (citing La.
C.C.P. art. 929(B)); Allen, 20-0330, p. 4, 312 So.3d at 650.