Louis Petkovich, Jr. and Julie D. Petkovich v. Franklin Homes, Inc., Gulf Coast Mobile Homes, Inc., Landry Mobile Home Transporters, Inc., and Nta, Inc.

LOUIS PETKOVICH, JR. AND * NO. 2021-CA-0448
JULIE D. PETKOVICH
*
VERSUS COURT OF APPEAL
*
FRANKLIN HOMES, INC., FOURTH CIRCUIT
GULF COAST MOBILE *
HOMES, INC., LANDRY STATE OF LOUISIANA
MOBILE HOME *******
TRANSPORTERS, INC., AND
NTA, INC.

APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 60-790, DIVISION “B”
Honorable Michael D. Clement,
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge
Dale N. Atkins)

Wayne R. Maldonado
John C. Henry
Warren J. Greenwood, Jr.
Karina Shareen
Brett F. Willie
UNGARINO & MALDONADO, LLC
3850 North Causeway Boulevard, Ste. 1280
Metairie, LA 70002

COUNSEL FOR GULF COAST MOBILE HOMES, INC.

Lamont P. Domingue
VOORHIES & LABBE
700 St. John St., Ste. 500
P. O. Box 3527
Lafayette, LA 70502—3527

COUNSEL FOR NTA, INC. AND FRANKLIN HOMES, INC.

John William Redmann
Edward L. Moreno
Travis J. Causey, Jr.
Cristian A. Galleguillos
LAW OFFICE OF JOHN W. REDMANN, LLC

1101 Westbank Expressway
Gretna, LA 70053

COUNSEL FOR PLAINTIFFS, LOUIS PETKOVICH, JR. AND JULIE D.
PETKOVICH

Paula M. Wellons
Jason D. Bone
TAYLOR WELLONS POLITZ & DUHE, APLC
1555 Poydras Street, Suite 2000
New Orleans, LA 70112

COUNSEL FOR LANDRY MOBILE HOME TRANSPORTERS, INC.

AFFIRMED IN PART; REVERSED IN PART; WRIT GRANTED IN PART;
WRITS DENIED

September 22, 2022

TFL
This appeal arises from the purchase, transportation, and permanent affixing
RLB
of a new modular home. Plaintiffs sustained vast damages to their modular
DNA
residence during Hurricane Isaac. Plaintiffs filed suit, over five years after

purchasing the home, against the seller, manufacturer, transporter, and engineering

firm associated with the construction, sale, and transportation of their new modular

home contending there were vices and defects and that the home was advertised to

withstand 140 mile per hour winds. Defendants filed exceptions of

peremption/prescription and no cause of action, as well as motions for summary

judgment. The trial court granted the exceptions of peremption/prescription and

found that all of plaintiffs’ claims were perempted and prescribed except for those

relating to fraud and intentional misrepresentation. Both plaintiffs and defendants

appealed.

After review and considering this Court’s jurisprudence, we find the trial

court did not err by granting defendants’ exceptions of peremption and prescription

as to all claims except those relating to fraud and intentional misrepresentation.

We convert the appeals of defendants to applications for supervisory review.

As the plaintiffs’ fraud and intentional misrepresentation claims against the

transporter were based in deficient performance, the claims were perempted. Thus,

1

we grant the transporter’s writ and dismiss the plaintiffs’ remaining claims against

it.

We find the plaintiffs sufficiently pled claims for fraud and intentional

misrepresentation against the manufacturer and engineering firm. As such, as to

the exceptions of no cause of action, their writs are denied. Moreover, we find

genuine issues of material fact remain as to the plaintiffs’ claims of fraud and

intentional misrepresentation against seller, manufacturer, and engineering firm.

Questions surrounding credibility, juxtaposed expert testimony, intent, and motive

are not suitable for summary judgment. Therefore, we deny their writs regarding

their motions for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louis and Julie Petkovich lived in their home in Plaquemines Parish when

Hurricane Katrina struck, causing catastrophic destruction, in August 2005. In an

effort to rebuild, they visited Gulf Coast Mobile Homes, Inc. (“Gulf Coast”)

seeking a new home for permanent placement on their land.

On January 9, 2007, the Petkovichs purchased a new modular home,

manufactured by Franklin Homes, Inc. (“Franklin”) and sold by Gulf Coast. Their

new home was transported to their location by Landry Mobile Home Transporters,

Inc. (“Landry”) and was affixed to a permanent concrete foundation. They moved

in approximately May 24, 2007.

On August 28, 2012, Hurricane Isaac struck, causing extensive damage to

the Petkovichs’ home. On August 28, 2013, the Petkovichs filed a Petition for

Damages against Gulf Coast, Franklin, Landry, and NTA, Inc. (the engineering

firm retained by Franklin to certify engineering specifications) (collectively

“Defendants”) alleging claims based in redhibition, Louisiana unfair trade

2

practices, negligence, misrepresentation, product liability, detrimental reliance,

breach of contract, and fraud.1 The Petkovichs asserted that they purchased their

new home because it was designed and built to withstand winds up to 140 miles

per hour.

After filing suit, numerous exceptions and motions were filed. Namely,

Gulf Coast filed Exceptions of Peremption and Prescription and a Motion for

Summary Judgment regarding the Petkovichs’ fraud and intentional

misrepresentation claims. NTA filed Exceptions of Peremption and Prescription,

as well as an Exception of No Cause of Action, which was followed by a Motion

for Summary Judgment. Franklin Homes also filed Exception of Peremption,

Prescription, and No Cause of Action, as well as a Motion for Summary Judgment.

Landry filed an Exception of Peremption, an Exception of Peremption specifically

targeting the Petkovichs’ LUTPA claims, and a Motion for Summary Judgment.

On March 11, 2021, the trial court granted Defendants’ Exceptions of

Peremption and Prescription in part as to all of the Petkovichs’ claims except for

those based in fraud and intentional misrepresentation. The Petkovichs’ claims,

besides those based in fraud and intentional misrepresentation, were dismissed

with prejudice. The Exceptions of No Cause of Action filed by Franklin and NTA

were denied. Lastly, the trial court denied Defendants’ Motions for Summary

Judgment. Defendants filed a Motion to Designate the judgment as final. The trial

court designated the March 11, 2021 judgment as final on March 30, 2021. The

Petkovichs and Defendants all filed motions for devolutive appeals, which the trial

court granted.

1 The Petkovichs brought one of approximately ten lawsuits against some of these modular home

defendants following Hurricane Isaac.

3

The Petkovichs appealed first, contending that the trial court erred by

granting the Exceptions of Peremption and Prescription and dismissing all of their

claims except for fraud and intentional misrepresentation. Defendants appealed

asserting the trial court erred by denying their exceptions in part, regarding fraud

and intentional misrepresentation, and for denying their Motions for Summary

Judgment. NTA and Franklin also maintained that the trial court erroneously

denied their Exceptions of No Cause of Action as to fraud and intentional

misrepresentation.

I. PETKOVICHS’ APPEAL

The Petkovichs contend that the trial court erred by granting Defendants’

Exceptions of Peremption and Prescription based upon La. R.S. 9:3141, et seq.; La.

R.S. 51:912.1, et seq.; La. R.S. 9:2772; and La. R.S. 51:1401, et seq. They

maintain that their claims regarding: redhibition, Louisiana unfair trade practices,

negligence, product liability, detrimental reliance, and breach of contract were

timely.

STANDARD OF REVIEW

The exceptions of peremption and prescription are peremptory exceptions.

La. C.C.P. art. 927. “The function of the peremptory exception is to have the

plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence

this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923.

Peremption

“Peremption is a period of time fixed by law for the existence of a right.

Unless timely exercised, the right is extinguished upon the expiration of the

peremptive period.” La. C.C. art. 3458. “Except as otherwise provided by law,

peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461.

4

“[T]he party pleading peremption bears the burden of proof at the trial of the

peremptory exception of peremption.” Thrasher Const., Inc. v. Gibbs Residential,

L.L.C., 15-0607, p. 8 (La. App. 4 Cir. 6/29/16), 197 So. 3d 283, 289. “[I]f

peremption is evident on the face of the pleadings, then the burden shifts to the

other party to show that the claim is not perempted.” Id. “Courts strictly construe

peremptive statutes against peremption and in favor of the claim.” McGaha v.

Franklin Homes, Inc., 21-0244, p. 29 (La. App. 4 Cir. 2/4/22), 335 So. 3d 842,

860, writ denied, 22-00374 (La. 4/26/22), 336 So. 3d 897.

“Appellate courts review legal questions, like the denial of peremptory

exceptions, de novo.” Titus v. Wilson, 15-0575, p. 3 (La. App. 4 Cir. 12/4/15), 216

So. 3d 928, 931. This Court elaborated further as follows:

If evidence is introduced at the trial on a
peremptory exception, appellate courts review the entire
record “to determine whether the trial court was
manifestly erroneous with its factual conclusions.”
Thrasher Constr. Inc. v. Gibbs Residential, L.L.C., 2015-
0607, pp. 6-7 (La. App. 4 Cir. 6/29/16), 197 So.3d 283,
289 (quoting Metairie III v. Poche’ Constr., Inc., 2010-
0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449).
The Thrasher Court further noted:
If the trial court’s findings are reasonable in light
of the entire record, then the appellate court may
not reverse even though it would have weighed
the evidence differently had it been sitting as the
trier of fact. Rando v. Anco Insulations Inc., [20]
08-1163, p. 20 (La. 5/22/09), 16 So.3d 1065,
1082, citing Stobart v. State, through DOTD, 617
So.2d 880, 882-83 (La. 1993). As further
explained by the Louisiana Supreme Court,
Under the manifest error standard, in order
to reverse a trial court’s determination of a
fact, an appellate court must review the
record in its entirety and (1) find that a
reasonable factual basis does not exist for
the finding, and (2) further determine that
the record establishes that the fact finder is
clearly wrong or manifestly erroneous.

5

Lomont v. Bennett, [20]14-2483, p. 17 (La.
6/30/15), 172 So.3d 620, 632-33.
Id., 2015-0607,p. 7, 197 So.3d at 289.

McGaha, 21-0244, pp. 29-30, 335 So. 3d at 860-61.

Prescription

“Generally, the party raising the exception of prescription bears the burden

of proof, unless prescription is evident from the face of the pleadings, in which

case the plaintiff bears the burden of showing that the action has not prescribed.”

Hardy v. Easy T.V. & Appliances of Louisiana, Inc., 01-0025, p. 7 (La. App. 4 Cir.

12/12/01), 804 So. 2d 777, 782. Much like for the exception of peremption, this

Court opined:

If evidence is introduced at the hearing on the
peremptory exception of prescription, the district court’s
findings of fact are reviewed under the manifest error-
clearly wrong standard of review. Rando v. Anco
Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d
1065, 1082. If there is as an absence of evidence, the
exception of the prescription must be decided upon the
properly pleaded material allegations of fact asserted in
the petition, and those alleged facts are accepted as true.
Trust for Melba Margaret Schwegmann, 51 So.3d at 742.
Further, in reviewing a peremptory exception of
prescription, appellate courts strictly construe the statutes
against prescription and in favor of the claim. Id. Of the
possible constructions of a prescriptive or preemptive
statute, the one that maintains enforcement of the claim
or action, rather than the one that bars enforcement
should be adopted. Rando, 16 So.3d at 1083.

Ames v. Ohle, 11-1540, pp. 5-6 (La. App. 4 Cir. 5/23/12), 97 So. 3d 386, 390-91.

DISCUSSION

The trial court’s reasons for judgment summarized the Petkovichs’ issues on

appeal and corresponding legal precepts, at this pre-trial juncture, as follows:

La. C.C. art. 3458 defines peremption as “a period
of time fixed by law for the existence of a right.” The
right is extinguished upon the expiration of the

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peremptive period unless it is timely exercised. Id. A
peremption may not be renounced, interrupted, or
suspended. La. C.C. art. 3461. Peremptive statutes are to
be strictly construed against peremption and in favor of
the claim. Rando v. Anco Insulations Inc., 2008-1163
(La. 5/22/09), 16 So.3d 1065, 1083.

Defendants base their peremption exception on the
New Home Warranty Act (NHWA), La. R.S. 9:3141 et
seq. and the New Manufactured and Modular Home
Warranty Act (NMMHWA), La. R.S. 51:912.1 et seq.
Defendants further argue that plaintiffs’ claims are
perempted under La. R.S. 9:2772, which governs the
peremptive period for actions involving deficiencies in
surveying, design, supervision, or construction of an
immovable or an improvement. Defendants assert
separate peremption exception regarding plaintiffs’ claim
based on the Louisiana Unfair Trade Practices Act
(LUTPA), La. R.S. 51:1409.

La. R.S. 9:3146 of the NHWA states that any
action to enforce a warranty is subject to a peremptive
period of thirty days after the applicable time period in
La. R.S. 9:3144. Subsection A of La. R.S. 9:3144
provides:
Subject to the exclusions provided in Subsection
B of this Section, every builder warrants the
following to the owner:
(1) One year following the warranty
commencement date, the home will be free from
any defect due to noncompliance with the
building standards or due to other defects in
materials or workmanship not regulated by
building standards.
(2) Two years following the warranty
commencement date, the plumbing, electrical,
heating, cooling, and ventilating systems
exclusive of any appliance, fixture, and
equipment will be free from any defect due to
noncompliance with the building standards or due
to other defects in materials or workmanship not
regulated by building standards.
(3) Five years following the warranty
commencement date, the home will be free from
major structural defects due to noncompliance
with the building standards or due to other defects
in materials or workmanship not regulated by
building standards.

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The warranty commencement date is defined in
La. R.S. 9:3143(7) as the date that legal title to the home
is conveyed to its initial purchaser or the date that the
home is first occupied, whichever occurs first.

Similarly to the NHWA, La. R.S. 51:912.6 of the
NMMHWA also provides that an action to enforce a
warranty is subject to a peremptive period of thirty days
after the expiration of the appropriate time period set
forth in La. R.S. 51:912.4. La. R.S. 51:912.4(A) also has
the same one-year, two-year, and five-year time periods
for builder’s warranties; and La. R.S. 51:912.3 has the
same definition of the warranty commencement date.
Both the NHWA and NMMHWA state that they each
provide the exclusive remedies, warranties, and
peremptive periods between the builder and the owner
relative to the construction of homes. See La. R.S.
9:3150; La. R.S. 51:912.10.

In Stutts v, Melton, 2013-0557 (La. 10/15/13), 130
So.3d 808, the Supreme Court held that while the NHWA
provides the exclusive remedies and preemptive periods,
the NHWA does not immunize as seller from other
contract law provisions the seller is to follow in
connection with the sale of a home. The court stated that
an action claiming that the seller made a fraudulent
misrepresentation is not a claim relative to home
construction, but a claim that the seller has knowingly
misrepresented that the home has a quality that he knows
it does not have.

Defendants also base their exceptions of
peremption and/or prescription on La. R.S. 9:2772(A)
which provides:
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

8

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:
(l)(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.

Subsection H of La. R.S. 9:2772 provides:
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.

In Thrasher Const. Inc, v. Gibbs Residential, 2015-
0607 (La. App. 4 Cir. 6/29/16), 197 So.3d 283, writ
denied, 2016-1453 (La. 11/15/16), 209 So.3d 779, the
Fourth Circuit stated that the five-year peremptive period
in La. R.S. 9:2772 would not apply to claims in which
the alleged breach of contract or damages were caused by

9

fraud.

Therefore, the exceptions of peremption and/or
prescription based on La. R.S. 9:3141 et seq., La. R.S.
51:912.1 et seq., and La. R.S. 9:2772 are overruled as
they pertain to the fraud and intentional
misrepresentation claims that the modular home could
withstand winds of up to 140 miles per hour. The
exceptions are otherwise sustained as to claims that are
not based on fraud and intentional misrepresentation.

Plaintiffs have also asserted a claim based on La.
R.S. 51:1401 et seq., the Louisiana Unfair Trade
Practices Act (LUTPA). La. R.S. 51:1409(E) states that a
private action under LUTPA shall be subject to a
liberative prescription of one year running from the time
of the transaction or act which gave rise to the cause of
action. Subsection A provides, in part:
Any person who suffers any ascertainable loss of
money or movable property, corporeal or
incorporeal, as a result of the use or employment
by another person of an unfair or deceptive
method, act, or practice declared unlawful by
R.S. 51:1405, may bring an action individually
but not in a representative capacity to recover
actual damages.

In Bottinelli Real Estate, LLC v. Johns Manville,
Inc.. 2019-0619 (La. App. 4 Cir. 12/27/19), 288 So.3d
179, the Fourth Circuit held that a claim under LUTPA
was subject to a one-year prescriptive period, which was
peremptive. Because plaintiffs’ LUTPA claims were
asserted more than one year after any alleged unfair trade
practice (which would had to have occurred during the
home purchase process in 2007), the exception of
peremption as to the LUTPA claim is sustained.

Subsequent to the trial court’s judgment, this Court addressed these exact

issues in McGaha, 21-0244, p. 1, 335 So. 3d at 842. McGaha is summarized

below:

This appeal involves tort claims brought by David
L. McGaha (hereinafter “Mr. McGaha”) and Melissa B.
McGaha (hereinafter “Mrs. McGaha”) concerning
alleged defects in their modular home. Mr. McGaha and
Mrs. McGaha (hereinafter collectively “Plaintiffs”) filed
suit against Gulf Coast Mobile Homes, Inc. (hereinafter

10

“Gulf Coast”); Franklin Homes, Inc. (hereinafter
“Franklin Homes”); Landry Mobile Home Transporters,
Inc. (hereinafter “Landry Transporters”); and NTA, Inc.
(hereinafter “NTA”). Gulf Coast, Franklin Homes,
Landry Transporters, and NTA (hereinafter collectively
“Defendants”) filed various exceptions and motions for
summary judgment that the trial court granted in part and
denied in part. Gulf Coast now seeks review of the trial
court’s judgment, which denied its motion for summary
judgment regarding claims of fraud and intentional
misrepresentation asserted by Plaintiffs. Additionally,
Plaintiffs seek review of that portion of the trial court's
judgment that granted Defendants’ various exceptions.
Further, Franklin Homes filed an answer to the appeal
and seeks review of the trial court’s judgment denying its
exception in part as to Plaintiffs’ claims of fraud and
intentional misrepresentation.
* * *
B. Redhibition Claim
. . . Louisiana Civil Code Article 2534(A)
provides:
The action for redhibition against a seller
who did not know of the existence of a defect in
the thing sold and the action asserting that a thing
is not fit for its ordinary or intended use prescribe
in two years from the day of delivery of the thing
to the buyer or one year from the day the defect
or unfitness was discovered by the buyer,
whichever occurs first.
However, if the action for redhibition is brought
“against a seller who knew, or is presumed to have
known, of the existence of a defect in the thing sold
prescribes in one year from the day the defect was
discovered by the buyer or ten years from the perfection
of the contract of sale, whichever occurs first.” La. C.C.
art. 2534(B).
* * *
Plaintiffs herein assert that Franklin Homes, as the
manufacturer, is presumed to have knowledge of the
alleged defects in their home. They contend prescription
did not begin to run until they discovered the defects
after Hurricane Isaac.
Plaintiffs argue that La. C.C. art. 2540 applies to
its claim against NTA. Louisiana Civil Code Article 2540
provides that “[w]hen more than one thing are sold
together as a whole so that the buyer would not have
bought one thing without the other or others, a
redhibitory defect in one of such things gives rise to
redhibition for the whole.” La. C.C. art. 2540. Plaintiffs

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allege the contract for construction of their home
included a certification the home met applicable building
standards; and they contend a home lacking such a
certification had no practical use to them. Further,
Plaintiffs argue this Court should consider all
components of the home, including the certification, as a
single unit for purposes of redhibition.
Additionally, Plaintiffs assert that Gulf Coast had a
significant role in the installation of their home. Thus,
Plaintiffs contend Gulf Coast is presumed to know of the
defects.
* * *
We note the argument that the contract in this case
was a contract to build or a construction contract has
merit. Nonetheless, Franklin Homes, NTA, and Gulf
Coast filed exceptions of peremption and/or prescription
to the claim of redhibition, which the trial court granted.
* * *
The record contains sufficient evidence for the trial
court to conclude Plaintiffs’ home lacked a defect
because it performed as expected during a category 1
hurricane. Thus, when viewing the October 23, 2006
Gulf Coast contract as a contract of sale, evidence exists
to support a finding that Gulf Coast, Franklin Homes, and
NTA lacked knowledge of a defect in Plaintiffs’ home
because it performed as expected in a category 1
hurricane. The peremptive period in such a situation is
set forth in La. C.C. art. 2534(A). Under that provision,
an action for redhibition prescribes “two years from the
day of delivery of the thing to the buyer or one year from
the day the defect or unfitness was discovered by the
buyer, whichever occurs first.” La. C.C. art. 2534(A).
* * *
The trial court’s judgment granting the exceptions
of peremption and prescription as to the claim of
redhibition against Gulf Coast, Franklin Homes, and
NTA, is reasonable in light of the entire record. Thus, the
trial court did not manifestly err in granting the
exceptions of peremption and prescription as to the claim
of redhibition.

C. Remaining Tort Claims

In their appellant brief, Plaintiffs contend the trial
court erred in granting the exception of peremption or
prescription as to their claims for violation of LUTPA,
negligence, negligent misrepresentation, violation of
LPLA, detrimental reliance, and breach of contract. They
assert that the prescriptive period found in La. C.C. art.

12

3493 applies to the remaining tort claims. Louisiana Civil
Code Article 3493 states that “[w]hen damage is caused
to immovable property, the one year prescription
commences to run from the day the owner of the
immovable acquired, or should have acquired,
knowledge of the damage.” Plaintiffs insist they could
not acquire knowledge of the damage until Hurricane
Isaac.
1. New Home Warranty Act

In their briefs, Defendants separated the remaining
claims and argued each remaining claim was perempted
or prescribed. First, they relied on the peremptive period
provided in the New Home Warranty Act (hereinafter
“NHWA”). Notably, the NHWA sets forth exclusive
remedies, warranties, and peremptive periods between a
builder and an owner of home construction. La. R.S.
9:3141-50. The NHWA defines “ ‘[b]uilder’ [as] any
person, corporation, partnership, limited liability
company, joint venture, or other entity which constructs a
home, or addition thereto, including a home occupied
initially by its builder as his residence.” La. R.S.
9:3143(1). The NHWA further provides:
(3) “Home” means any new structure
designed and used only for residential use,
together with all attached and unattached
structures, constructed by the builder whether or
not the land was purchased from the builder.
Such term includes structures containing multiple
family dwellings or residences.
(4) “Initial purchaser” means any person
for whom a home is built or the first person to
whom a home is sold upon completion of
construction.
La. R.S. 9:3143(3)-(4).
The NHWA applies to Franklin Homes as a
builder; Plaintiffs as initial purchasers; and their modular
home as a new home. Pursuant to the NHWA, Franklin
Homes warranted the following to Plaintiffs:
(1) One year following the warranty
commencement date, the home will be free from
any defect due to noncompliance with the
building standards or due to other defects in
materials or workmanship not regulated by
building standards.
(2) Two years following the warranty
commencement date, the plumbing, electrical,
heating, cooling, and ventilating systems
exclusive of any appliance, fixture, and

13

equipment will be free from any defect due to
noncompliance with the building standards or due
to other defects in materials or workmanship not
regulated by building standards.
(3) Five years following the warranty
commencement date, the home will be free from
major structural defects due to noncompliance
with the building standards or due to other defects
in materials or workmanship not regulated by
building standards.
La. R.S. 9:3144.
* * *
In this instance, Plaintiffs contend they expressed
their desire for a home that could withstand a hurricane.
They assert that the representation the home could
withstand 140-mile-per-hour winds was the “biggest
selling point.” In particular, Plaintiffs indicate this was
important because Hurricane Katrina destroyed their
prior home. Plaintiffs allege that during the formation of
the contract, Franklin Homes, Gulf Coast, and NTA
represented their home could withstand 140-mile-per-
hour winds and that their home was very sturdy. Notably,
the Franklin Homes’ quotation stated, “BUILD HOUSE
TO 140 MPH WIND SPEED ROOF RAFTERS (16”
OC).” Gulf Coast heavily advertised the 140-mile-per-
hour wind speed. The quotation referenced engineering
fees associated with certain items. Plaintiffs state they
would not have purchased the home otherwise. Thus,
while any claim for an alleged defect in the property is
presumably perempted by the NHWA, Plaintiffs stated a
cause of action for fraud and intentional
misrepresentation in the formation of the contract. The
cause of action for fraud or intentional misrepresentation
in the formation of the contract is subject to a
prescriptive period of one year commencing to run from
the day the injury or damage is sustained. La. C.C. art.
3492. When the damage is to immovable property, the
one-year prescriptive period commences to run from the
day the owner of the immovable acquired, or should have
acquired, knowledge of the damage. La. C.C. art. 3493.
Gulf Coast, Franklin Homes, and NTA contend
that Plaintiffs should have acquired knowledge of any
alleged defect due to the damages incurred by Hurricane
Gustav. In discussing constructive notice, this Court has
held:
“Constructive knowledge has been defined
by our courts as whatever notice is enough to
excite attention and put the injured party on guard
or call for inquiry.” Oracle Oil, L.L.C. v. EPI

14

Consultants, Div. of Cudd Pressure Control, Inc.,
[20] 11-0151, p. 6 (La. App. 1 Cir. 9/14/11), 77
So.3d 64, 69. “Such notice is tantamount to
knowledge or notice of everything to which a
reasonable inquiry might lead, and such
information or knowledge as ought to reasonably
put the injured party on inquiry is sufficient to
start the running of prescription.” Id. “In
assessing whether an injured party possessed
constructive knowledge sufficient to commence
the running of prescription, this court's ultimate
consideration is the reasonableness of the injured
party's action or inaction in light of the
surrounding circumstances.” Id., [20]11-0151, p.
7, 77 So.3d at 69. “The ultimate issue is the
reasonableness of the patient's action or inaction,
in light of his education, intelligence, the severity
of the symptoms, and the nature of the
defendant's conduct.’ ” [In Re Med. Review Panel
of] Lafayette, [20]03-0457, p. 6 [(La. App. 5 Cir.
10/15/03)], 860 So.2d [86,] 89 [(quoting] Campo
v. Correa, [20]01-2707, p. 12 (La. 6/21/02), 828
So.2d 502, 511[)].
In re Hume, 2014-0844, pp. 7-8 (La. App. 4 Cir. 4/1/15),
165 So.3d 233, 239.
The record herein lacks evidence that Plaintiffs’
education and intelligence should have led them to
conclude Franklin Homes, Gulf Coast, and/or NTA
misrepresented the sturdiness of the home in the
formation of the contract based on the damages sustained
in Hurricane Gustav. Moreover, we take judicial notice
that the top wind speeds during Hurricane Gustav were a
maximum 117 per hour, not 140, which is what the home
was warranted to withstand.13 See Daurbigney v. Liberty
Pers. Ins. Co., 2018-929, p. 2 (La. App. 3 Cir. 5/9/19),
272 So. 3d 69, 71 n. 1. During Hurricane Gustav,
Plaintiffs lost some shingles leading to water intrusion
and damages to a limited area. Hurricane Isaac resulted
in the roof partially collapsing, as well as water intrusion
and mold throughout the entirety of the home. Thus,
Hurricane Isaac, and the resulting damage, placed
Plaintiffs on notice that the alleged representations were
false. The prescriptive period commenced to run after the
damage caused by Hurricane Isaac.

2. La. R.S. 9:2772: “Peremptive period for actions
involving deficiencies in surveying, design,
supervision, or construction of immovables or
improvements thereon”

15

Gulf Coast, Franklin Homes, and NTA also cited
La. R.S. 9:2772 in support of their exceptions of
peremption and prescription. Louisiana Revised Statute
9:2772 states, in pertinent part:
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 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)(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.
(1)(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.
La. R.S. 9:2772(A)(1)(b)-(c).
Gulf Coast, Franklin Homes, and NTA contend
that Plaintiffs filed suit more than five years and ninety
days after first occupying the property in November
2006. Thus, they assert that all claims against them were
perempted or prescribed by La. R.S. 9:2772(A)(1)(b) and
(c).

16

In their brief, Plaintiffs counter that the fraud
exception applies. Louisiana Revised Statute 9:2772 also
provides that “[t]he 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.”
La. R.S. 9:2772(H)(1).
In Thrasher Construction Co., this Court indicated
the five-year peremptive period does not apply to claims
in which fraud caused the alleged breach of contract or
damages. 2015-0607, p.15, 197 So.3d at 293. As noted
previously, Plaintiffs allege the fraud committed by
Franklin Homes, Gulf Coast, and NTA caused the
alleged breach of contract and damages. Thus, Plaintiffs’
claims asserted pursuant to La. R.S. 9:2772 are not
perempted because Plaintiffs allege fraud.

3. La. R.S. 9:5607: “Actions against a professional
engineer”
NTA claimed peremption based on La. R.S.
9:5607, which is the statute that specifically applies to
engineers. Louisiana Revised Statute 9:5607 provides, in
pertinent part:
A. No action for damages against any
professional engineer ... relative to development
plans which have been certified by a professional
engineer ... whether based upon tort, or breach of
contract, or otherwise arising out of an
engagement to provide any manner of movable or
immovable planning, construction, design, or
building, which may include but is not limited to
consultation, planning, designs, drawings,
specifications, investigation, evaluation,
measuring, or administration related to any
building, construction, demolition, or work, shall
be brought unless filed in a court of competent
jurisdiction and proper venue at the latest within
five years from:
....
(2) The date the owner has occupied or
taken possession of the improvement, in whole or
in part, if no such acceptance is recorded;
....
C. The five-year period of limitation
provided for in Subsection A of this Section is a
peremptive period within the meaning of Civil
Code Article 3458 and in accordance with Civil
Code Article 3461, may not be renounced,

17

interrupted, or suspended.
....
E. The peremptive period provided in
Subsection A of this Section shall not apply in
cases of fraud, as defined in Civil Code Article
1953.
The five-year peremptive period set forth in La.
R.S. 9:5607 applies to all claims except fraud and
intentional misrepresentation. As set forth above,
Plaintiffs allege fraud and intentional misrepresentation.
Thus, their claims asserted against NTA are not
perempted because they have alleged fraud.

4. La. R.S. 51:1409: The Louisiana Unfair Trade
Practices Act
Plaintiffs also asserted a claim under LUTPA.
Louisiana Revised Statute 51:1409(A) provides, in
pertinent part:
Any person who suffers any ascertainable
loss of money or movable property, corporeal or
incorporeal, as a result of the use or employment
by another person of an unfair or deceptive
method, act, or practice declared unlawful by
R.S. 51:1405, may bring an action individually ...
to recover actual damages.
A private action under LUTPA shall be subject to
a prescriptive period of one year from the time of the
transaction or act giving rise to the cause of action. La.
R.S. 51:1409(E). This Court has held the one-year period
to be peremptive in Bottinelli Real Estate, L.L.C. v. Johns
Manville, Inc., 2019-0619, p. 6 (La. App. 4 Cir
12/27/19), 288 So.3d 179, 185.
Herein, Plaintiffs filed their claim on August 28,
2013. The sale, which constitutes the transaction or act
giving rise to their claim, occurred on October 23, 2006.
Thus, the trial court correctly determined the LUTPA
claim was perempted pursuant to La. R.S. 51:1409(E)
because the claim was filed several years after the
transaction or act giving rise to Plaintiffs’ claim.
Hence, we find that the trial court did not
manifestly err in granting the exceptions of peremption
and prescription as to all claims, except fraud and
intentional misrepresentation, against Gulf Coast,
Franklin Homes, and NTA; and its judgment is
reasonable in light of the entire record.

McGaha, 21-0244, pp. 1-43, 335 So. 3d at 846-68.

We find McGaha governs the Petkovichs’ appeal. Regarding the claims of

18

redhibition, this Court found that the peremptive period “in such a situation is set

forth in La. C.C. art. 2534(A). Under that provision, an action for redhibition

prescribes ‘two years from the day of delivery of the thing to the buyer or one year

from the day the defect or unfitness was discovered by the buyer, whichever occurs

first.’” McGaha, 21-0244, p. 33, 335 So. 3d at 863 (quoting La. C.C. art.

2534(A)). This Court found, as the McGahas purchased their modular home on

October 23, 2006, and filed suit on August 28, 2013, that the trial court did not err

by granting the exceptions of peremption and prescription as to the redhibition

claims, as almost seven years elapsed between purchase and filing suit. Id., 21-

0244, p. 34, 335 So. 3d at 863. This Court further determined that the remaining

non-redhibitory tort claims of the McGaha plaintiffs, not based on fraud or

intentional misrepresentation, were perempted or prescribed because suit was not

filed until almost seven years from purchasing the home. Id., 21-0244, p. 43, 335

So. 3d at 868.

In the present matter, the Petkovichs purchased their modular home on

January 9, 2007, and, it is undisputed, based on the Petkovichs’ deposition

testimony, that they moved into their new home on May 24, 2007.2 The

Petkovichs then filed suit on August 28, 2013, which was over six years after

purchasing and inhabiting their home. Therefore, as in McGaha, we find that the

trial court did not err by granting the exceptions of prescription and peremption as

to all the Petkovichs’ claims except those regarding fraud and intentional

misrepresentation. Accordingly, that portion of the trial court’s judgment is

affirmed.

2 May 24, 2007 was the date agreed upon. However, all parties agreed that the Petkovichs
inhabited their new home no later than June 24, 2007.

19

II. DEFENDANTS’ APPEALS

Gulf Coast filed an appeal asserting that the trial court erred by denying its

Motion for Summary Judgment and not dismissing the Petkovichs’ fraud and

intentional misrepresentations claims. Landry appealed averring the trial court

erred by failing to sustain, in full, its Exception of Peremption, and by denying the

Motion for Summary Judgment regarding the fraud and intentional

misrepresentation claims. Franklin and NTA also appealed and alleged the trial

court erred by denying their Exceptions of No Cause of Action and Motions for

Summary Judgment, as well as denying their Exception of Peremption in part.

JURISDICTION

“Appellate courts have a duty to determine sua sponte, whether the court has

proper jurisdiction to consider the merits of an appeal filed in the court.” Joseph v.

Wasserman, 21-0138, p. 3 (La. App. 4 Cir. 12/17/21), 334 So. 3d 413, 416.

All Defendants separately filed for appeals from the trial court’s denial of

their exceptions of prescription, peremption, and no cause of action, as well as

their Motions for Summary Judgment regarding the Petkovichs’ fraud and

intentional misrepresentation claims. The motions for appeal were filed following

the trial court’s La. C.C.P. art. 1915(B) certification of the judgment as final.

“However, a trial court’s certification pursuant to La. C.C.P. art. 1915(B) is not

determinative of jurisdiction.” McGaha, 21-0244, p. 23, 335 So. 3d at 857.

This Court previously held that “La. C.C.P. art. 1915(B)(1) does not

authorize a trial court to designate a judgment denying an exception as final for

purposes of an immediate appeal.” Id., 21-0244, p. 24, 335 So. 3d at 858. We

further stated, “[a] trial court’s certification of an interlocutory judgment as ‘final’

pursuant to La. C.C.P. art. 1915(B)(1) does not transform the interlocutory

20

judgment into a judgment subject to an immediate appeal.” Id., 21-0244, pp. 24-

25, 335 So. 3d at 858.

However, utilizing our vast discretion, we have converted appeals into

applications for supervisory review. Jacobs v. Metzler-Brenckle, 20-0585, p. 14

(La. App. 4 Cir. 5/26/21), 322 So. 3d 347, 357, writ denied, 21-00911 (La.

10/19/21), 326 So. 3d 257. “[W]e do so only when the motion for appeal has been

filed within the thirty-day time period allowed for the filing of an application for

supervisory writs under Rule 4–3 of the Uniform Rules, Courts of Appeal.”3

Delahoussaye v. Tulane Univ. Hosp. & Clinic, 12-0906, p. 5 (La. App. 4 Cir.

2/20/13), 155 So. 3d 560, 563. Moreover, we also only convert appeals to

supervisory writs “where the circumstances indicate that immediate decision of the

issue sought to be appealed is necessary to ensure fundamental fairness and

judicial efficiency, such as where reversal of the trial court’s decision would

terminate the litigation.” Id.

In the instant case, the trial court ruled on March 11, 2021. The trial court

designated the judgment as final on March 30, 2021. The Petkovichs’ Motion for

Devolutive Appeal was filed on April 12, 2021. Landry filed a Petition for

Devolutive Appeal on April 14, 2021. NTA filed a Petition for Devolutive Appeal

on April 15, 2021. Franklin filed a Petition for Devolutive Appeal on April 15,

2021. Gulf Coast filed a Petition for Devolutive Appeal on April 20, 2021.

3 RULE 4-3. TIME TO FILE; EXTENSION OF TIME, reads, in pertinent part:

The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set
a reasonable return date within which the application shall be filed in the appellate court. The
return date in civil cases shall not exceed 30 days from the date of notice, as provided in La.
C.C.P. art. 1914. In criminal cases, unless the judge orders the ruling to be reduced to writing,
the return date shall not exceed 30 days from the date of the ruling at issue. When the judge
orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30
days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; an
appellate court will not infer a return date from the record.

21

All of Defendants’ appeals were filed within thirty days of the designation of

the judgment as final.4 Moreover, a reversal in favor of any of Defendants would

terminate litigation as to one or all Defendants. Our appellate review also

promotes judicial efficiency and fundamental fairness. Accordingly, we convert

Defendants’ appeals to applications for supervisory review and proceed with our

substantive analysis.

LANDRY

Landry contends the trial court erred by grouping all Defendants together

and treating them as one entity. Landry asserts that although La. R.S.

9:2772(H)(1) contains a fraud exception,5 the Petkovichs provided no evidence to

establish fraud committed by Landry. Therefore, Landry avers the trial court erred

by not dismissing claims for fraud and intentional misrepresentation as perempted.

La. R.S. 9:2772 provides, in pertinent part:

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,

4 Gulf Coast’s Petition for Devolutive Appeal was not filed within thirty days of the notice of the

March 11, 2021 judgment, which creates the argument that it should not be converted to a
supervisory writ for failure to comply with the requirement that a notice of intent for filing a
supervisory writ be filed within thirty days of the notice of judgment.
However, the Notice of Appeal from the 25th Judicial District Court notes that Gulf
Coast submitted a motion of appeal on April 9, 2021. Gulf Coasts contends this is because it fax
filed a Motion for Devolutive Appeal prior to the April 20, 2021 stamped filing. Additionally,
“the delay for filing an appeal of a partial judgment begins on the day the notice of signing a
motion to certify is mailed.” Fraternal Order of Police v. City of New Orleans, 02-1801, p. 5
(La. 11/8/02), 831 So. 2d 897, 900. Gulf Coast’s Petition for Devolutive Appeal was filed within
thirty days of the notice of the signing of the trial court’s certification of the judgment as final.
Moreover, Defendants’ Motion to Designate Judgment as Final Judgment or Alternatively to Fix
Return Date for Supervisory Writ Application was filed on March 26, 2021. Lastly, “[t]he
appellate court shall render any judgment which is just, legal, and proper upon the record on
appeal.” La. C.C.P. art. 2164. As such, we convert Gulf Coast’s appeal to a writ as well.
5 See McGaha, 21-0244, p. 41, 335 So. 3d at 867.

22

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.
* * *
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.
* * *
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.

23

(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.

As we explained in McGaha,

“Fraud” is defined as a “misrepresentation or a
suppression of the truth made with the intention either to
obtain an unjust advantage for one party or to cause a
loss or inconvenience to the other. Fraud may also result
from silence or inaction.” La. C.C. art. 1953. In Yi-Zarn
Wang v. Boudreaux, this Court noted “[t]he two essential
elements of fraud are the intent to defraud or gain an
unfair advantage and actual or probable damage.” 2020-
0249, p. 12 (La. App. 4 Cir. 1/15/20), 310 So.3d 730, 738
(quoting Dutton & Vaughan, Inc. v. Spurney, 600 So.2d
693, 698 (La. App. 4 Cir. 1992)).
The essential elements of “intentional
misrepresentation” are “(1) a misrepresentation of
material fact, (2) made with the intent to deceive, (3)
causing justifiable reliance with resulting injury.” Sys.
Eng’g & Sec., Inc. v. Sci. & Eng’g Ass’ns, Inc., 2006-
0974, p. 3 (La. App. 4 Cir. 6/20/07), 962 So.2d 1089,
1091 (quoting Goodman v. Dell Publishing Co., 1995
WL 428602 (E.D. La.1995)).

21-0244, pp. 37-38, 335 So. 3d at 865.

Mrs. Petkovich testified that she could not recall any specific statements

made by Landry while performing work on their land. She then stated that she did

not recall any conversations with Landry prior to purchasing their home or

regarding the wind load of the home. Mr. Petkovich testified that he never had a

conversation with an employee of Landry about their home. He also stated that he

never received any information about his home from Landry or relied upon any

24

information from Landry when deciding to purchase the home. Further, Mr.

Petkovich stated that he had no information that Landry attempted to deceive him,

give him false information, injure him, damage his home, or acted in an “immoral,

unethical, oppressive, or unscrupulous way.”

Moreover, Landry attached the following requests for admissions to the

Exception of Peremption:

REQUEST FOR ADMISSION NO. 2:
Please admit that you did not rely on any representation
made to you Landry Mobile Home Transporters, Inc. or
its employees in reaching your decision to purchase the
Manufactured housing at issue in this litigation.
RESPONSE TO REQUEST FOR ADMISSION NO.
2:
Request for Admission No 2 is admitted.

REQUEST FOR ADMISSION NO. 3:
Please admit that there is no written contract between
you and Landry Mobile Home Transporters, Inc. relating
in any way to the manufactured housing at issue in this
litigation.
RESPONSE TO REQUEST FOR ADMISSION NO.
3:
Request for Admission No. 3 is admitted.

REQUEST FOR ADMISSION NO. 4:
Please admit that you have no factual information which
establishes that Landy Mobile Home Transporters. Inc.
or its employees made any false representations to you
before your purchase of the manufactured housing at
issue in this litigation.
RESPONSE TO REQUEST FOR ADMISSION NO.
4:
Request for Admission No. 4 is admitted.

REQUEST FOR ADMISSION NO. 6:
Please admit that you have no factual information which
establishes that Landry Mobile Home Transporters, Inc.
had any involvement with the testing of the manufactured
housing at issue to establish, determine or certify its wind
load rating.
RESPONSE TO REQUEST FOR ADMISSION NO.
6:
Request for Admission No. 6 is admitted.

25

REQUEST FOR ADMISSION NO. 8:
Please admit that you have no information that Landry
Mobile Home Transporters, Inc. or its employees
concealed my information from you regarding the
attributes of the manufactured housing, including but not
limited to its wind load rating.
RESPONSE TO REQUEST FOR ADMISSION NO.
8:
Request for Admission No. 8 is admitted.

REQUEST FOR ADMISSION NO. 9:
Please admit that Landry Mobile Home Transporters,
Inc. did not sell the manufactured housing at issue to
you.
RESPONSE TO REQUEST FOR ADMISSION NO.
9:
Request for Admission No. 9 is admitted.

In the opposition to the exception, the Petkovichs stated that Landry

transported their home in two pre-constructed sections, placed them on piers,

leveled, and joined the two sections together. The Petkovichs claimed that

“Landry knew, or should have known, that, in order to sustain wind speeds of 140

miles-per-hour, the roof had to be properly constructed with the appropriate

materials.”

From the evidence reviewed above, the Petkovichs lacked evidence of fraud

or intentional misrepresentation by Landry. It is undisputed that Landry did not

participate in the formation of the Petkovichs’ contract. As we stated in McGaha,

this connotes that the Petkovichs’ claims against Landry were based in “allegations

of a deficient performance” and these claims were “perempted by La. R.S.

9:2772.” 21-0244, p. 44, 335 So. 3d at 869. Accordingly, in light of our review,

the trial court erred by denying Landry’s Exception of Peremption in part, as it

relates to fraud and intentional misrepresentation. Therefore, Landry’s writ is

granted and the Petkovichs’ fraud and intentional misrepresentation claims against

26

Landry are dismissed with prejudice.

NO CAUSE OF ACTION

Franklin and NTA maintain that the trial court erred by denying their

Exceptions of No Cause of Action.

“A peremptory exception of no cause of action questions whether the law

extends a remedy against a defendant to anyone under the factual allegations of a

petition.” White v. New Orleans Ctr. for Creative Arts, 19-0213, p. 7 (La. App. 4

Cir. 9/25/19), 281 So. 3d 813, 819. “An exception of no cause of action tests ‘the

legal sufficiency of the petition by determining whether the law affords a remedy

on the facts alleged in the pleading.’” Moreno v. Entergy Corp., 10-2281, p. 3 (La.

2/18/11), 62 So. 3d 704, 706 (quoting Everything on Wheels Subaru, Inc. v. Subaru

South, Inc., 616 So. 2d 1234, 1235 (La. 1993)). Further,

“In deciding an exception of no cause of action a
court can consider only the petition, any amendments to
the petition, and any documents attached to the petition.”
Green, 2017-0695, p. 4, 248 So.3d at 453(quoting 2400
Canal, LLC v. Bd. of Sup’rs of Louisiana State Univ. Agr.
& Mech. Coll., 2012-0220, p. 7 (La. App. 4 Cir. 11/7/12),
105 So.3d 819, 825). “A court cannot consider assertions
of fact referred to by the various counsel in their briefs
that are not pled in the petition.” Id. “The grant of the
exception of no cause of action is proper when, assuming
all well pleaded factual allegations of the petition and any
annexed documents are true, the plaintiff is not entitled to
the relief he seeks as a matter of law.” Id. Further, “any
doubt must be resolved in the plaintiffs’ favor.” Id.
However, the mere conclusions of the plaintiff
unsupported by facts do not set forth a cause of action.
Green, 2017-0695, p. 4, 248 So.3d at 453-54 (citing 831
Bartholomew Investments–A, L.L.C. v. Margulis, 2008-
0559, p. 10 (La. App. 4 Cir. 9/2/09), 20 So.3d 532, 538).

White, 19-0213, pp. 7-8, 281 So. 3d at 819.

Appellate courts review a trial court’s ruling on an exception of no cause of

action de novo because the exception raises a question of law. Ocwen Loan

27

Servicing, LLC v. Porter, 18-0187, p. 3 (La. App. 4 Cir. 5/23/18), 248 So. 3d 491,

495.

Our de novo review “is limited to reviewing the four
corners of the petition to determine whether on its face
the petition states a cause of action.” Id. “[A]ll well-
pleaded facts in the petition are accepted as true for
purposes of determining the issues raised by an exception
of no cause of action. The mover bears the burden of
proving that the petition states no cause of action; and de
novo review does not take into consideration whether the
party will be able to prevail on the merits.” Id.

Id. (quoting Boyd v. Cebalo, 15-1085, p. 2 (La. App. 4 Cir. 3/16/16), 191 So. 3d

59, 61).

In their Petition, the Petkovichs asserted that “Franklin had advertised as

being able to withstand winds of up to one hundred forty (140) miles per hour.”

Further, the Petition alleged:

XVIII.
Also during the design and manufacture of
Petitioners’ Home, Franklin had an engineering firm,
NTA, confirm that both the design and manufacturing of
Plaintiffs’ Home (prior to leaving Franklin’s facility)
allegedly met the relevant building codes and certain
design loads, such as the aforementioned one hundred
forty (140) miles per hour wind rating.
* * *
XX.
Also upon information and belief. Gulf Coast,
Franklin, Landry, and NTA had knowledge of these vices
and defects in Petitioners’ Home, but failed to disclose
this information to the Petitioners at the time of the
purchase and, in fact, fraudulently and falsely represented
that the Home did not contain the defects.
XXI.
Gulf Coast, Franklin, Landry, and NTA acted
fraudulently by informing Petitioners at the time of
purchase that their Home could sustain wind loads of one
hundred forty (140) miles per hour.
XXII.
Petitioners would not have purchased the Home
had they known of the vices and defects in its design,

28

manufacture, construction and/or assembly.
* * *
XXXIII.
Upon information and belief, Gulf Coast, Franklin,
Landry, and NTA supplied products to the Petitioners
that it knew or should have known were defective, and
knew could not be repaired. Gulf Coast, Franklin,
Landry, and NTA made intentional or negligent
misrepresentations regarding the home’s ability to
withstand high winds and failed to disclose problems
with this modular home model.
* * *
XLIII.
Petitioners reaver and reallege all the preceding
allegations of the preceding paragraphs.
XLIV.
Gulf Coast, Franklin, Landry, and NTA made
fraudulent misrepresentations and omissions to
Petitioners about the design, manufacture, and structural
integrity of Petitioners’ Home, including without
limitation, misrepresenting that the home could sustain
wind loads of one hundred forty (140) miles per hour.
XLV.
As a result of their actions and inactions, Gulf
Coast, Franklin, Landry, and NTA are liable to
Petitioners for all damages resulting therefrom,
including, but not limited to: rescission of the sale or
specific performance; quanti minoris damages;
consequential and/or resultant damages; loss of contents
and other personal property; inconvenience and
displacement; mental anguish; loss of enjoyment of life;
personal injuries resulting from mold exposure and/or
unsafe conditions at the property; exemplary/punitive
damages; interest, attorneys’ fees, and costs; and any and
all other damages reasonable upon the premises, and
proven at trial.

The trial court, upon reviewing the Petition, found:

Franklin Homes and NTA are the only defendants
asserting this particular exception. They argue that
plaintiffs failed to allege sufficient facts to state a cause
of action under the various legal theories asserted by
plaintiffs. The only claims that plaintiffs have remaining,
after the exceptions of peremption and prescription were
sustained in part, are the claims based on fraud and
intentional misrepresentation.
Plaintiffs alleged that defendants made fraudulent
misrepresentations and omissions regarding the design,

29

manufacture, and structural integrity of Petitioners’
Home, including without limitation, misrepresenting that
the home could sustain wind loads of 140 miles per hour.
An exception of no cause of action questions
whether the law extends a remedy against the defendant
to anyone under the factual allegations of the petition.
Scott v. Zaheri, 2014-0726 (La. App. 4 Cir. 12/3/14), 157
So.3d 779. The purpose of the exception is not to
determine whether the plaintiff will prevail at trial, but to
ascertain if a cause of action exists. Bruzeau v. Wells
Fargo Bank, N.A.. 2012-0075 (La. App. 4 Cir. 8/2/12),
99 So.3d 1010.
Plaintiffs sufficiently plead a cause of action for
fraud and intentional misrepresentation based on their
allegations concerning the representations of the modular
home’s wind rating.

Upon our de novo review, we agree with the trial court. The Petkovichs

sufficiently pled claims for fraud6 and intentional misrepresentation.7 As such,

Franklin and NTA’s writs are denied as it pertains to the Exceptions of No Cause

of Action.

SUMMARY JUDGMENT

The remaining defendants, Gulf Coast, Franklin, and NTA filed appeals

contending the trial court erred by denying their Motions for Summary Judgment.

6 As we stated in McGaha:

“Fraud” is defined as a “misrepresentation or a suppression of the
truth made with the intention either to obtain an unjust advantage
for one party or to cause a loss or inconvenience to the other. Fraud
may also result from silence or inaction.” La. C.C. art. 1953. In Yi-
Zarn Wang v. Boudreaux, this Court noted “[t]he two essential
elements of fraud are the intent to defraud or gain an unfair
advantage and actual or probable damage.” 2020-0249, p. 12 (La.
App. 4 Cir. 1/15/20), 310 So.3d 730, 738 (quoting Dutton &
Vaughan, Inc. v. Spurney, 600 So.2d 693, 698 (La. App. 4 Cir.
1992)).
21-0244, p. 37, 335 So. 3d at 865.
7 Again, from McGaha:

The essential elements of “intentional misrepresentation”
are “(1) a misrepresentation of material fact, (2) made with the
intent to deceive, (3) causing justifiable reliance with resulting
injury.” Sys. Eng’g & Sec., Inc. v. Sci. & Eng’g Ass’ns, Inc., 2006-
0974, p. 3 (La. App. 4 Cir. 6/20/07), 962 So.2d 1089, 1091
(quoting Goodman v. Dell Publishing Co., 1995 WL 428602 (E.D.
La.1995)).
21-0244, pp. 37-38, 335 So. 3d at 865.

30

For the following reasons, we find their assertions lack merit and deny the writs

filed by Gulf Coast, Franklin, and NTA.

Standard of Review

“The summary judgment procedure is designed to secure the just, speedy,

and inexpensive determination of every action, except those disallowed by Article

969.” La. C.C.P. art. 966(A)(2). “[A] motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show that there is

no genuine issue as to material fact and that the mover is entitled to judgment as a

matter of law.” La. C.C.P. art. 966(A)(3). “The burden of proof rests with the

mover.” La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the

burden of proof at trial . . . the mover’s burden on the motion does not require him

to negate all essential elements of the adverse party’s claim.” Id. Instead, the

mover must “point out to the court the absence of factual support for one or more

elements essential to the adverse party’s claim, action, or defense.” Id. Then,

“[t]he burden is on the adverse party to produce factual support sufficient to

establish the existence of a genuine issue of material fact or that the mover is not

entitled to judgment as a matter of law.” Id.

“Appellate courts review motions for summary judgment de novo under the

same criteria that govern the trial court’s consideration of whether summary

judgment is appropriate.” Wood v. Del Giorno, 06-1612, p. 3 (La. App. 4 Cir.

12/19/07), 974 So. 2d 95, 98.

Gulf Coast

Gulf Coast’s application for supervisory review seeks review of the trial

court’s denial of its Motion for Summary Judgment. Specifically, Gulf Coast

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contends the Petkovichs cannot carry their burden of proof for the fraud and

intentional misrepresentation claims.

In support, Gulf Coast submitted Mrs. Petkovichs’ deposition wherein she

stated that Gulf Coast knew their home was not built to the specifications it

represented. She testified, “I guess I just feel that it’s possible that they knew

things weren’t the way that it should have been.” She further stated that “[m]y

understanding is that the home should be able to withstand 140-mile-per-hour

wind. . . . I guess my understanding was that at 140-mile-per-hour wind that I

shouldn’t have much damage. I guess, you know, just was able to withstand 140-

miles-an-hour wind.” However, Mrs. Petkovich could not recall the exact

language used by the Gulf Coast employee. Mr. Petkovich stated in his deposition

testimony that he did not recall anything the salesperson or other Gulf Coast

employees said. Likewise, he did not recall discussing the alleged 140 miles per

hour wind rating prior to purchasing the home.

In opposition, the Petkovichs submitted additional deposition excerpts of the

Petkovichs. Mrs. Petkovich stated “Well, that’s what the paperwork we had said.

That the homes were built so it would withstand 140-mile-an-hour wind. That was

one of the things that were brought to our attention at the time of the sale; and, you

know, we were replacing a home that was from a hurricane.” Although, she

admitted that the documents did not contain the word “withstand,” but that is what

she understood the 140 miles per hour rating to mean.

The Petkovichs also attached a report from Gurtler Bros. Consultants, Inc.,

an engineering consulting company, wherein the expert, Michael Gurtler – the

president and operator, stated that after reviewing the damage to the Petkovichs’

home, the calculations may likely result in a “constructive total loss.” The Gurtler

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report summarized their conclusions regarding issues with the Petkovichs’ home:

The roof is constructed at the plant in fold-down
sections. For transportation, the roof is folded down and
once on site, the roof is unfolded to form a gable roof.
The roof failed at each of the folded joints. The roof
covering was damaged and failed prematurely due to
defective installation. Water that landed on the roof
above any joint was allowed to flow into the house
through the joint. Additionally, we have inspected over
10 homes built by die same manufacturer in the same
time frame and installed in this area. After reviewing the
installation instructions from the manufacturer, we
determined that the manufacturer was to ship 15# roofing
felt for use at these joints. We consistently found that a
thin paper material, not suitable for use as roofing felt,
was substituted for the felt specified by the manufacturer.
Every home we looked at suffered water intrusion
damages as a result of similar roof failures and excess
water intrusion at the hinged joint.
The OSB sub-decking and exterior wall sheathing
that got wet as a result of the subsequent rainwater
intrusion must be removed and replaced, as it has lost its
structural integrity and is promoting mold growth.
The building framing is clearly shifted and out of
position due to wind effects caused by the storm. It
should also be noted that the home was constructed to
meet a wind load of 140 miles per hour. Sustained winds
in this area during Hurricane Isaac were well below this
threshold.
Numerous damaged and poor quality roof trusses
were observed. The shifted framing will impair the
ability of the structure to resist future wind events.
Substantial gusset plates will have to be added to the
deformed and damaged connections in the attic to restore
structural integrity. The connections will have to be
designed and stamped by a Louisiana Licensed
Professional Engineer. The shims used on top of some of
the foundation piers are not installed in accordance with
manufacturer’s installation instructions. Improper
shimming along with defective materials and
construction in the modular home caused the house to
shift.
Considerable water entered the house as result of
roof damages caused by defective installation. Severe
interior damages were noted in most interior rooms. The
EPA guidelines for remediation after a moisture intrusion
event indicate that any absorbent materials (sheetrock,
insulation and the kitchen or bathroom cabinet frames)

33

must be removed and replaced, any semi-absorbent
materials (wood framing and plywood) must be dried,
cleaned and sealed with an anti-fungicidal treatment and
any non-absorbent materials must be cleaned.
Under-floor insulation is kept in place with a vapor
barrier. Once the insulation was saturated due to the
leakage of the storm, the insulation kept the water in
contact with the floor framing system and subfloor,
preventing the house from drying. We inspected this
house over 7 weeks after the storm passed and water
could still be found running from the vapor barrier when
it was punctured.
When viewing the cement board siding, we noted
that there does not appear to be butt flashing under the
siding, as required by the manufacturer. Gaps noted at
numerous siding seams suggest twisting and racking of
the house and not long-term foundation settlements.
Additionally, during our inspections of the other modular
homes with cement board siding installed, we noted that
fasteners were installed to a depth where the nail head
almost penetrates the board. This is a violation of the
manufacturer’s installation instructions and contributed
to the siding being weaker than designed and contributed
to its failure.
Because the house could not be properly dried,
there is not one piece of wood framing inside this house
that was not subjected to excess moisture either in die
form of direct rainwater or elevated humidity. In our
opinion, based on the racking and damages to the
structure and the remediation required by the EPA
guidelines, the costs to repair this house will be
substantial and could approach the point of being a
constructive total loss. Should you request, we can
provide an adjustment in Xactimate for the damage repair
costs for clarification.
If you have any questions regarding this report or
need further assistance, please call. This report is an
instrument of professional service and is the property of
Gurtler Bros. Consultants, Inc. This report is strictly and
solely a professional opinion of the subject property
based on the observations made on the day of our
Inspection.
Any third party use of this report is prohibited. The
scope of this report is limited to the above items. This
report does not include environmental aspects or building
code compliance.

Further, excerpts from Michael Gurtler’s deposition in a similar matter with

34

different plaintiffs was attached, wherein Mr. Gurtler discussed some deficiencies

found in other modular homes in the area.

Franklin

Like Gulf Coast, Franklin’s application for supervisory review seeks review

of the trial court’s denial of its Motion for Summary Judgment regarding the

Petkovichs’ claims of fraud and intentional misrepresentation. Specifically,

Franklin maintains the trial court erred “because the evidence demonstrated that

the only statements attributable to Franklin were neither fraudulent nor intentional

misrepresentations and Plaintiffs failed to present any competent evidence of intent

on the part of Franklin to obtain an unjust advantage or cause a loss or

inconvenience to Plaintiffs.”

In support, Franklin presented excerpts from the Petkovichs’ depositions.

Mrs. Petkovich contends she and her husband partook in conversations at Gulf

Coast about the home being about to withstand 140 mile per hour winds. She

stated that she did not have any verbal communications with anyone from Franklin

prior to purchasing the home. When Mrs. Petkovich was questioned regarding the

documents from Franklin that included language about 140 mile-per-hour winds,

she could not say that she relied upon the documents to purchase her home.

However, she testified that she believed Franklin had knowledge of what damage

her home could sustain during a storm with less than 140 mile per hour sustained

winds, such as Hurricane Isaac. Mrs. Petkovich did not reach out to anyone at

Franklin prior to purchasing the home.

Further, a document entitled “Quotation” from Franklin included the

statement “ADD 140 MPH WIND” for $1,000.00. The “data plate” document also

included “140MPH” next to “Wind Speed MPH” describing some specifications of

35

the home. Franklin also attached excerpts from Mr. Gurtler’s deposition from

another modular home lawsuit. He explained that a 140 mile-per-hour standard

does not mean a home will experience no damage at all, but is a “theoretical design

standard.”

In opposition, the Petkovichs submitted much of the same excerpts of

depositions and documents as Franklin. Mrs. Petkovich stated that one of the

reasons they selected a Franklin home was “I guess it was just the style of the

house, and the fact that it was supposed to withstand the -- you know, about the

hurricane winds.” In addition, the excerpt contained the following colloquy:

Q: In your -- in your Petition, you make an allegation
about 140-miles-per-hour winds. Can you tell me about
that?
A. Well, that’s what the paperwork we had said. That the
homes were built so it would withstand 140-mile-an-hour
wind. That was one of the things that were brought to our
attention at the time of the sale; and, you know, we were
replacing a home that was from a hurricane.
Q. And that’s the basis of the allegation in your Petition?
A. Right. That – that’s what the homes were supposed to
be able to withstand -- 140-miles-an-hour wind.

Again, Mrs. Petkovich stated that she understood that to mean the home could

withstand 140 mile per hour winds. However, Mrs. Petkovich admitted she had no

verbal communication with Franklin prior to purchasing the home.

The Gurtler report again opined that the Petkovichs’ home could be a

“constructive total loss” and included the conclusions discussed in the Gulf Coast

section above. Further, Mr. Gurtler, in a deposition from another modular home

lawsuit, responded thusly when asked if Franklin, NTA, Landry, or Affordable

Homes committed fraud:

A. Okay. There’s certainly some inconvenience to
others, meaning that these homeowners were
tremendously inconvenienced because their houses were

36

basically destroyed in a storm that was significantly
below the wind rating where their house would be
expected to be destroyed. So from that point of view I
think there is a loss and inconvenience to these
homeowners.
Suspress [sic] -- suppression of the truth or
misrepresentation, I don’t -- I think a misrepresentation
could be interpreted as these people bought a home that
was supposed to survive to a certain wind load. You have
a storm coming that’s clearly well below that wind load,
you would not expect widespread and catastrophic
damages based on that storm forecast.
Now every storm can have wide variations of loads
in a particular area because there’s tornados involved and
there’s a lot going on from a meteorology point of view.
But in this case we had 10 or so homes in 10 or so
different locations that all suffered the same basic
damage. So I’m thinking that the problem that was
experienced by these homeowners is more of a design
and construction issue, than 10 different places in South
Plaquemines Parish each got hit by tornados at -- at the
passage of this relatively minor storm. But in storms we
all know anything is possible.
I think the misrepresentation might be that the
homeowners were told this house was stronger and
would survive better in minor storms than clearly these
houses did in this relatively minor storm. Does that
answer your question?

NTA

NTA contends the trial court erred by denying the Motion for Summary

Judgment as it related to the Petkovichs’ fraud and intentional misrepresentation

claims because the Petkovichs “produced no proof of NTA’s Intent to harm them

nor that NTA said their home could ‘withstand’ 140 MPH winds.”

NTA submitted Mrs. Petkovichs’ deposition wherein she stated that she had

no verbal communication with NTA prior to purchasing the home. When asked

about NTA specifically, Mrs. Petkovich stated:

Q. All right. Did you believe that anyone at NTA
intended for the damages that occurred during Hurricane
Isaac to occur?

37

A. Again, I’m not saying they intended, but there is a
possibility of they had knowledge what could have
happened in the situation.

Mr. Petkovich stated that he did not have verbal communication with anyone from

NTA before or after purchasing the home.

NTA also attached the testimony of David Tompos, the general manager and

vice-president of NTA, from another plaintiffs’ suit against Defendants. He stated

he was a licensed and registered engineer in Louisiana. Further, excerpts from Mr.

Gurtler’s deposition in another matter was attached, wherein he was questioned by

counsel for NTA. He stated that while he received an engineering degree, he was

not a licensed professional engineer.

The Petkovichs opposed and attached excerpts from their depositions

including the information submitted against Gulf Coast and Franklin. They also

attached the sales documents, including a letter from NTA. The NTA letter stated:

This is to confirm that NTA, Inc., inspected the
above referenced model while being built in Franklin
Homes production facility. NTA, Inc. also reviewed and
approved the model plans for SN#13219 on December
12, 2006. The plan review and in plant inspection
confirmed that the modular unit was built to the
following codes:

2003 International Residential Code
2002 National Electrical Code

The plans were designed and approved for the following
design loads:

20 psf Roof Live Load
40 psf Floor live Load
140 mph Wind - Exposure C
Seismic Design Category C

Also, the data plate specification sheet for the Petkovich home stated that the

design was approved by NTA with “140MPH” listed as the “Wind Speed MPH.”

38

The Petkovichs also attached portions of Mr. Gurtler’s deposition testimony

from another matter regarding his opinion on whether fraud was committed, block

quoted above in the section on Franklin. The Gurtler conclusions from the report

were also included.

Summary Judgment Application

In denying Gulf Coast’s, NTA’s, and Franklin’s Motions for Summary

Judgment, the trial court stated:

All four defendants moved for summary judgment
arguing that there are no genuine issues of material fact
that there is any factual basis for plaintiffs’ claims against
them. Defendants and plaintiffs submitted copious
amounts of evidence to support their respective positions.
This case boils down to a credibility call as to what
the plaintiffs were or were not told about the 140 mile per
hour wind rating for their modular home. Credibility
determinations are unsuited for a motion for summary
judgment. Alfred Conhagen, Inc, of La. v. Ruhrpumpen,
Inc., 2018-0414 (La. App. 4 Cir. 12/19/18), 262 So.3d
306, writ denied, 2019-0126 (La. 3/18/19), 267 So.3d 94.
In ruling on a motion for summary judgment, the trial
court cannot consider the merits, evaluate testimony, or
weigh evidence. Suire v. Lafayette City-Parish Consol.
Gov’t, 2004-1459 (La. 4/12/05), 907 So.2d 37.

We agree. Our de novo review of the Petkovichs’ claims against Gulf Coast,

NTA, and Franklin reveal genuine issues of material fact and credibility issues as

to what the Petkovichs were told, what they relied upon, and juxtaposed expert

testimony.8 “[A] motion for summary judgment is not suitable for the disposition

of cases requiring a judicial determination of subjective facts such as intent,

knowledge, motive, malice, or good faith.” Ballex v. Naccari, 95-1339, p. 2 (La.

App. 4 Cir. 9/15/95), 663 So. 2d 173, 175. Additionally, we are prevented from

8 Additional expert testimony taken by deposition after the hearing in lieu of live testimony at the

hearing. The depositions were not discussed herein because the depositions were not attached in
support of or in opposition to the Motions for Summary Judgment.

39

weighing evidence. Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La. App. 4 Cir.

10/25/00), 772 So. 2d 828, 830. Accordingly, Gulf Coast’s, NTA’s, and Franklin’s

writs are denied.9

9 Gulf Coast, NTA, and Franklin also assert their Motions for Summary Judgment should have

been granted because the Petkovichs were put on constructive notice after the previous Hurricane
Gustav, which would mean the fraud and intentional misrepresentation claims were prescribed as
well. We addressed this issue while addressing the Petkovichs’ appeal and examined the same
issue in McGaha, as follows:
Gulf Coast, Franklin Homes, and NTA contend that
Plaintiffs should have acquired knowledge of any alleged defect
due to the damages incurred by Hurricane Gustav. In discussing
constructive notice, this Court has held:
“Constructive knowledge has been defined by our
courts as whatever notice is enough to excite attention and
put the injured party on guard or call for inquiry.” Oracle
Oil, L.L.C. v. EPI Consultants, Div. of Cudd Pressure
Control, Inc., [20] 11-0151, p. 6 (La. App. 1 Cir.
9/14/11), 77 So.3d 64, 69. “Such notice is tantamount to
knowledge or notice of everything to which a reasonable
inquiry might lead, and such information or knowledge as
ought to reasonably put the injured party on inquiry is
sufficient to start the running of prescription.” Id. “In
assessing whether an injured party possessed constructive
knowledge sufficient to commence the running of
prescription, this court’s ultimate consideration is the
reasonableness of the injured party’s action or inaction in
light of the surrounding circumstances.” Id., [20]11-0151,
p. 7, 77 So.3d at 69. “The ultimate issue is the
reasonableness of the patient’s action or inaction, in light
of his education, intelligence, the severity of the
symptoms, and the nature of the defendant’s conduct.’ ”
[In Re Med. Review Panel of] Lafayette, [20]03-0457, p. 6
[(La. App. 5 Cir. 10/15/03)], 860 So.2d [86,] 89
[(quoting] Campo v. Correa, [20]01-2707, p. 12 (La.
6/21/02), 828 So.2d 502, 511[)].
In re Hume, 2014-0844, pp. 7-8 (La. App. 4 Cir. 4/1/15), 165
So.3d 233, 239.
The record herein lacks evidence that Plaintiffs’ education
and intelligence should have led them to conclude Franklin Homes,
Gulf Coast, and/or NTA misrepresented the sturdiness of the home
in the formation of the contract based on the damages sustained in
Hurricane Gustav. Moreover, we take judicial notice that the top
wind speeds during Hurricane Gustav were a maximum 117 per
hour, not 140, which is what the home was warranted to
withstand.13 See Daurbigney v. Liberty Pers. Ins. Co., 2018-929, p.
2 (La. App. 3 Cir. 5/9/19), 272 So. 3d 69, 71 n. 1. During
Hurricane Gustav, Plaintiffs lost some shingles leading to water
intrusion and damages to a limited area. Hurricane Isaac resulted in
the roof partially collapsing, as well as water intrusion and mold
throughout the entirety of the home. Thus, Hurricane Isaac, and the
resulting damage, placed Plaintiffs on notice that the alleged

40

DECREE

For the above-mentioned reasons, we find the trial court did not err by

finding the Petkovichs’ claims against Defendants, except for those regarding fraud

and intentional misrepresentation, were perempted or prescribed. The trial court

properly dismissed those claims in line with our previous jurisprudence, McGaha.

Upon reviewing, we find Defendants’ appeals necessitated conversion to

applications for supervisory review.

Finding the Petkovichs’ claims against Landry were based in “allegations of

a deficient performance,” we find all of the Petkovichs’ claims against Landry

were perempted. Therefore, we grant Landry’s writ and the Petkovichs’ fraud and

intentional misrepresentation claims against Landry are dismissed with prejudice.

We find the Petkovichs sufficiently pled claims for fraud and intentional

misrepresentation. As such, Franklin and NTA’s writs are denied as to the

Exceptions of No Cause of Action. Lastly, we find genuine issues of material fact

remain as to the Petkovichs’ claims of fraud and intentional misrepresentation

against Gulf Coast, NTA, and Franklin. Questions surrounding credibility,

juxtaposed expert testimony, intent, and motive are not suitable for summary

judgment. Therefore, we deny Gulf Coast, NTA, and Franklin’s writs regarding

their Motions for Summary Judgment.

AFFIRMED IN PART; REVERSED IN PART; WRIT GRANTED IN PART;
WRITS DENIED

representations were false. The prescriptive period commenced to
run after the damage caused by Hurricane Isaac.

McGaha, 21-0244, pp. 38-40, 335 So. 3d at 865-66. Accordingly, these assertions lack merit.

41