James T. Patterson, Et Ux. v. Dillard Eugene Brazzel, Et Ux.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-751

JAMES T. PATTERSON, ET UX.

VERSUS

DILLARD EUGENE BRAZZEL, ET UX.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 234,994
HONORABLE MARY LAUVE DOGGETT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and J. David Painter, Judges.

AFFIRMED.

Fred Andrew Pharis
Pharis & Pharis
831 DeSoto Street
Alexandria, LA 71301
(318) 445-8266
Counsel for Plaintiffs/Appellees:
Melanie Patterson
James T. Patterson

Stephen Nolan Elliott
Michael Robertson
Bernard, Cassisa, Elliott & Davis
P. O. Box 54490
Metairie, LA 70055-5490
(504) 834-2612
Counsel for Defendant/Appellee:
Malcolm Burns

Brian David Smith
Jason Michael Nash
Ungarino & Eckert, L.L.C.
910 Pierremont Rd, Ste 351
Shreveport, LA 71106
(318) 866-9596
Counsel for Defendant/Appellee:
Catlin Specialty Insurance Company

Douglas William Truxillo
Onebane Law Firm
P. O. Drawer 3507
Lafayette, LA 70502-3507
(337) 237-2660
Counsel for Defendant/Appellee:
Gemini Insurance Company

Matthew John Ungarino
Ungarino & Eckert, LLC
3850 N. Causeway Blvd., #1280
Metairie, LA 70002
(504) 836-7565
Counsel for Defendant/Appellee:
Catlin Specialty Insurance Company

Mark E. Seamster
James Anthony Prather
Galloway, Johnson, Tomplins, Burr, and Smith
3 Sanctuary Blvd., Suite 301
Mandeville, LA 70471
(985) 674-6680
Counsel for Defendant/Appellee:
American Vehicle Insurance Company

Christopher Shannon Hardy
Penny & Hardy
P. O. Box 2187
Lafayette, LA 70502-2187
(337) 231-1955
Counsel for Defendant/Appellee:
Allstate Insurance Company

Michael Scott Futrell
Connick and Connick, LLC
2551 Metairie Road
Metairie, LA 70001
(504) 838-8777
Counsel for Defendant/Appellee:
Scottsdale Insurance Company

Ethan N. Penn
Brent J. Carbo
Musgrave, McLachlan & Penn
1515 Poydras St., #2380
New Orleans, LA 70112
(504) 799-4300
Counsel for Defendants/Appellees:
Foundation Specialists, Inc.
Arthur M. "Doc" Hopkins

Koby D. Boyett
P. O. Box 12746
Alexandria, LA 71315
(318) 481-2242
Counsel for Defendants/Appellants:
Dillard Eugene Brazzel
Kayla Sparks Brazzel

G. W. Rudick, II
Onebane Law Firm
1200 Camellia Blvd., Suite 300
Lafayette, LA 70508
(337) 237-2660
Counsel for Defendant/Appellee:
Gemini Insurance Company

EZELL, Judge.

Kayla and Dillard Brazzel appeal the trial court‟s granting of an exception of

peremption which dismissed all claims against Foundation Specialists, Inc. and Arthur

Miller Hopkins. For the following reasons, we affirm.

FACTS

Melanie and James Patterson filed suit against the Brazzels on May 12, 2009,

alleging defects in the home they purchased from the Brazzels on May 14, 2008.

They specifically claim that foundation failure caused damage to the concrete slab and

exterior bricks, in addition to interior damage to floors, walls, and ceilings. By an

amending petition, they also named as defendants the builder of the home, Malcolm

Burns d/b/a Burns Builders; the installer of the post-tension monolithic concrete slab,

Foundations Specialists, Inc. and its employee, Arthur M. “Doc” Hopkins; and the

designer of the slab, Robert D. Lee and Robert D. Lee Consulting Engineers, Inc.

The Brazzels filed a cross-claim against the other defendants for contribution

and/or indemnity. On February 14, 2011, Foundations Specialists and Mr. Hopkins

filed an exception of peremption alleging that all claims against them were barred by

peremption under La.R.S. 9:2772. On March 14, 2011, a hearing on the exception

was held. The trial court granted the exception of peremption, and judgment was

signed on March 25, 2011. The Brazzels appealed the granting of the exception of

peremption.

PEREMPTION

The Brazzels claim that the trial court erred in failing to properly interpret and

apply La.R.S. 9:2772 to their cross-claims for contribution and indemnity against

Foundation Specialists and Mr. Hopkins by applying a 2003 amendment to La.R.S.

9:2772, which provides for a five-year preemptive period. The Brazzels argue that

they have vested indemnity rights which are not perempted because La.R.S. 9:2772

provided for a seven-year peremptive period prior to the 2003 amendment. The

Brazzels occupied their home in September 2002. They filed their cross-claims on

July 15, 2009. They argue their cross-claims were within the seven-year time period.

The supreme court recently addressed this issue in Ebinger v. Venus Const.

Corp., 10-2516 (La. 7/1/11), 65 So.3d 1279. The issue before the court was whether a

construction company‟s third-party demand against a subcontractor was time-barred

by the application of the peremptive period in La.R.S. 9:2772.

In addressing the issue, the supreme court noted that the peremptive period in

La.R.S. 9:2772 was shortened twice. Originally, when enacted in 1964, the

peremptive period was ten years. In 1999, La.R.S. 9:2772 was amended to shorten

the period to seven years. Finally, in 2003, the time period in La.R.S. 9:2772 was

shortened to five years.

In determining which peremptive period applied, the supreme court observed

that Section 2 of Acts 1999, No. 1024 stated: “„The provisions of this Act shall have

prospective application only and shall apply to contracts entered into on or after the

effective date of this Act.‟” Ebinger, 65 So.3d at 1284. The 2003 amendment did not

contain this language. The supreme court reasoned that the legislature could have

included the same language in the 2003 Act if it intended for the Act to apply only to

contracts entered into after its effective date.

The supreme court next addressed the issue of whether the right to indemnity

vested before the 2003 amendment became effective. The supreme court recognized

that “[i]demnity is a separate substantive cause of action, independent of the

underlying wrong.” Id. at 1286 (citing Nassif v. Sunrise Homes, Inc., 98-3193 (La.

6/29/99), 739 So.2d 183). The supreme court also acknowledged that “[a] vested right

must be absolute, complete and unconditional, independent of a contingency.” Id. at

1287 (citing Sawicki v. K/S Stavanger Prince, 01-528 (La. 12/7/01), 802 So.2d 598).

The supreme then held that the construction company had no claim for

indemnification because it had neither been sued nor cast in judgment prior to the
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effective date of the 2003 amendment. Therefore, the five-year peremptive period

was applicable. In Ebinger, 65 So.3d 1279, the five-year peremptive period began to

run when the homeowners occupied the residence in 1997, so that the construction

company‟s claim was perempted before its cause of action arose.

In the present case, Foundation Specialists and Mr. Hopkins were not sued until

well after the effective date of the 2003 amendment. Therefore, the five-year

peremptive period is applicable to them. The Brazzels occupied the home in

September 2002, so that their claim against Foundation Specialists and Mr. Hopkins

was perempted in September 2007, well before the original suit was filed in 2009.

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal assessed to Kayla and Dillard Brazzel.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-

Courts of Appeal. Rule 2-16.3.

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