Sheila Vanderbrook Wife of/and Terry B. Trahan, Dolores DeLaune Wife of/and John B. Middleton, E. Ray Wilkes, Jr., Anne Lester Wife of/and Robert R. Raposo, Sherie Landry Wife of/and Raymond C. Burkart, Jr. and Stacy Miller Wife of/and Lance L. Engolia, S VS Christopher R. Jean, Lee Road Development Company, Highland Lakes Development Corporation, Johnny F. Smith Truck and Dragline Service, Inc., The Highlands Homeowners Association of St. Tammany, Inc., Palmers, Inc., Alternative Design/Build Group, L.L.C.,

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1744 SHEILA VANDERBROOK WIFE OF AND TERRY B TRAHAN DOLORES DeLAUNE WIFE OFAND JOHN B MIDDLETON E RAY WILKES JR ANNE LESTER WIFE OFAND ROBERT R RAPOSO SHERIE LANDRY WIFE OFAND RAYMOND C BURKART JR AND STACY MILLER WIFE OF AND LANCE L ENGOLIA SR VERSUS CHRISTOPHER R JEAN LEE ROAD DEVELOPMENT COMPANY HIGHLAND LAKES DEVELOPMENT CORPORATION JOHNNY F SMITH TRUCK AND DRAGLINE SERVICE INC THE HIGHLANDS HOMEOWNERS ASSOCIATION OF ST TAMMANY INC PALMERS INC ALTERNATIVE DESIGN GROUP L NORTHLAKE TRUCK BUILD C MULLER ATTORNEYS AT LAW A LIMITED CENTER L MULLER C LIABILITY COMPANY JOHNNY F SMITH TESTAMENTARY TRUST RICHARD L MULLER SILVIA G MULLER JANICE SEAL SMITH 1 STUMPF INDIVIDUALLY AND AS TRUSTEE OF THE JOHNNY F SMITH TESTAMENTARY TRUST BARNEY L CORE GARY SALATHE MARTIN MURPHY DAVID T GLASS WADE GLASS ADRIAN SPELL JODI McINTYRE WIFE OF AND GREGORY SCOTT BRIDGES WILLIS A PALMER Judgment Rendered SEP 1 3 ojo Appealed from the TwentySecond Judicial District Court In and for the Parish of St Tammany State of Louisiana Suit Number 2004 11723 Honorable William J Burris Presiding Raymond C Burkart Jr Counsel for PlaintiffsAppellants Katherine O Burkart Sheila Vanderbrook et al Covington LA William J Jones Jr Leland R Gallaspy Covington LA 1 Counsel for DefendantAppellee Lee Road Development Covington LA Roger C Linde Counsel for DefendantsAppellees F Forrester Willoz IV Alternative Design Group Build Metairie LA C L Gary Salathe Martin Murphy Michael F Weiner Counsel for DefendantsAppellees Mark W Frilot Christopher R Jean Highland Lakes Development Corp Johnny F Smith Truck Dragline Service Inc The Highlands Homeowners Association Sandra Varnado Mandeville LA of St Tammany Inc Johnny F Smith Testamentary Trust Janice Seal Smith Stumpf and Barney L Core Counsel for Defendants Appellees Palmers Inc and Willis A Palmer Mitchell A Palmer Tom W Thornhill Slidell LA Metairie LA Counsel for Defendants Appellees David Glass Wade Glass and Glass Contracting of St Tammany Inc Michael P Mentz Counsel for DefendantsAppellees Alayne R Corcoran Muller Alan A Zaunbrecher Muller L Richard C Muller and Silvia Muller Metairie LA Adrian Spell Bush LA DefendantAppellee in proper person Lester F Parks Jr Defendants Appellees in proper Carole F Parks person Slidell LA Jack E Truitt Nancy N Butcher Counsel for DefendantsAppellees Jodi McIntyre wife ofand Gregory Madisonville LA Scott Bridges BEFORE PARRO GUIDRY AND HUGHES JJ 2 GUIDRY J Plaintiffs Sheila Vanderbrook et al appeal from a judgment of the trial court sustaining in part peremptory exceptions raising the objection of prescription filed by defendants Richard Muller Silvia Muller and Muller Muller LLC Muller defendants Jodi McIntyre wife of Gregory Bridges and Bridges defendants and Palmers Inc and Willis A Palmer Palmer defendants as to claims for damages raised in a crossclaim filed by defendant The Highlands Homeowners Association of St Tammany Inc Highlands Homeowners Association For the reasons that follow we affirm and remand FACTS AND PROCEDURAL HISTORY Plaintiffs owners of immovable property and improvements in Highland Lakes Subdivision in St Tammany Parish filed a lengthy petition on April 8 2004 against a number of defendants seeking a declaratory judgment and damages as a result of the development ownership and construction of the lakes earthen dams spillways and roadways of Highland Lakes Subdivision In their petition plaintiffs asserted claims against numerous defendants including the Muller defendants Bridges defendants and Palmer defendants for fraud negligence breach of duties intentional acts and respondeat superior Plaintiffs also named the Highlands Homeowners Association as a defendant in the original suit Thereafter plaintiffs filed a supplemental and amending petition to clarify their claims against the named defendants On June 14 2007 plaintiffs filed a third supplemental and amending petition asserting a derivative action pursuant to La C art 611 et seq as immovable property owners in the Highland Lakes P Subdivision and as members of the Highlands Homeowners Association Plaintiffs Plaintiffs amended their petition in response to a judgment of the trial court sustaining exceptions filed by several defendants raising the objections of vagueness and nonconformity of the petition 3 subsequently filed a fourth supplemental and amending petition to clarify their derivative claims On July 14 2008 Highlands Homeowners Association filed a crossclaim against all other defendants seeking damages contribution and indemnification or for any damages that Highlands Homeowners Association was liable for reimbursement to Highlands Homeowners Association for repair costs and a declaration of ownership of the roads lakes dams and spillways in Highland Lakes Subdivision Thereafter the Palmer defendants Muller defendants and Bridges defendants each filed exceptions raising the objection of prescription regarding the crossclaim2 Following a hearing on the exceptions the trial court rendered judgment sustaining the exceptions in part dismissing any and all tort claims presented in the crossclaim of Highlands Homeowners Association but denying the exceptions in part as to the claim for contribution and indemnification or Plaintiffs now appeal from this judgment The Muller defendants and the Palmer defendants have filed motions to dismiss plaintiffs appeal asserting that the plaintiffs have no right to appeal from the trial court judgment Additionally s counsel for Willis A Palmer has filed an exception raising the objections of no cause of action and no right of action asserting that subsequent to the rendition of the trial court judgment Willis A Palmer died s DISCUSSION Exception of No Rieht of Action and No Cause of Action The judgment sustaining in part the Palmer defendants exception raising the objection of prescription was signed on March 5 2009 On May 15 2009 the trial court signed an order granting the plaintiffs appeal Thereafter counsel for Willis 2 Defendants Alternative DesignBuild LLC Gary Salathe and Martin Murphy also filed an exception raising the objection of prescription which is the subject of a separate appeal decided this date in Vanderbrook v Jean 09 1746 La App 1st Cir 9 1010 opinion unpublished 4 A Palmer filed for the first time an exception raising the objections of no cause of action and no right of action in this court asserting that Willis A Palmer died on March 21 2009 and because the claims against him seek to establish his personal obligation to Highlands Homeowners Association for the alleged defects resulting from his participation as engineer and supervisor on the subdivision or project made the basis of the Association claim such obligation is strictly s personal under La C art 1766 and abated on his death in accordance with La P C art 428 Accordingly counsel argues that Highlands Homeowners Association no longer has a cause of action or right of action against Willis A Palmer individually and that the appeal should be dismissed Louisiana Code of Civil Procedure article 2163 provides in pertinent part The appellate court may consider the peremptory exception filed for the first time in that court if pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record Counsel for Willis A Palmer attached an affidavit of death domicile and heirship to the exception filed in this court however neither this affidavit nor any other evidence of Willis A Palmer death appears in the record on appeal s An appellate court has no jurisdiction to receive new evidence and cannot receive or consider any evidence outside of the record on appeal Lewis v Jabbar 081051 p 6 La App 1st Cir 1 5 So 3d 250 255 09 12 However because the ground alleged as a basis for the exception did not arise until after the judgment was rendered in the district court and because we cannot render a valid judgment in this matter until the exception is resolved or a proper person defendantappellee is substituted for Willis A Palmer we remand this matter to the district court for consideration of Willis A Palmer exception s raising the objections of no cause of action and no right of action See Smith v State Department of Transportation and Development 04 1317 p 23 La 5 05 11 3 899 So 2d 516 530 citin Lewis v Lewis 155 La 231 99 So 202 1923 for the proposition that an appellate court may remand an exception of res judicata to the trial court because the grounds alleged for the exception did not come into existence until after the appeal had been lodged Rainey v Entergy Gulf States Inc 01 2414 pp 4 5 La App 1st Cir 6 885 So 2d 1193 04 25 1197 writs denied 04 1878 La 11 15 887 So 2d 478 and 04 1883 La 04 04 15 11 887 So 2d 479 and 041884 La 11 887 So 2d 479 finding 04 15 that the appellate court could not render a valid judgment in that case unless a proper person plaintiff appellee was substituted for the decedent because a judgment rendered for or against a dead person is a nullity Motion to Dismiss the Appeal The Muller defendants and the Palmer defendants also seek dismissal of the plaintiffs appeal asserting that the plaintiffs have no right to appeal from the district court judgment sustaining in part the defendants exceptions raising the s objection of prescription as to the Highlands Homeowners Association scross claim An appeal is the exercise of the right of a party to have a judgment of a trial court revised modified set aside or reversed by an appellate court La C art P 2082 It is not necessary that a person have a judgment directly against him in order to have the capability of appealing Any party aggrieved by a judgment or who may be aggrieved has a right to appeal Bossier Bank Trust Company v Fryar 488 So 2d 428 433 La App 3rd Cir 1986 The object of an appeal is to give an aggrieved party recourse for the correction of a judgment and such right is extended not only to the parties to the action in which the judgment is rendered but also to a thirdparty when such party is allegedly aggrieved by the judgment 0 ANR Pipeline Co v Louisiana Tax Commission 081148 p 14 La App 1st Cir 08 17 10 997 So 2d 92 101 writ denied 090027 La 3 3d 484 3So 09 6 In support of their exception the Muller defendants and the Palmer defendants assert that the plaintiffs have no interest in changing the judgment and have not been aggrieved by the district court judgment because the Highlands s Homeowners Association filed a motion in the district court to voluntarily dismiss its cross claim which was granted with prejudice However from our review of the record Highlands Homeowners Association smotion to dismiss was filed on June 9 2009 almost one month after the district court granted plaintiffs order of appeal from the judgment sustaining in part the defendants exception of prescription as to the Association scross claim Louisiana Code of Civil Procedure article 2088 provides that t A he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested and that of the appellate court attaches on the granting of the order of appeal and the timely filing of the appeal bond in the case of a suspensive appeal or on the granting of the order of appeal in the case of a devolutive appeal Because the cross claim was a matter in the case reviewable on appeal the trial court did not have jurisdiction to grant the motion to dismiss the cross claim Accordingly we vacate the order dismissing the cross claim Therefore we find the Muller defendants and the Palmer defendants argument that the dismissal establishes that the plaintiffs have no interest in appealing the judgment sustaining in part their exceptions of prescription to be without merit Further we find based on the circumstances of this case that the plaintiffs have an interest in appealing the district court judgment and are aggrieved by that s judgment As stated above the plaintiffs are individual homeowners in Highland Lakes Subdivision and are members of Highlands Homeowners Association The 7 ownership of the roads of Highland Lakes Subdivision is still an unresolved issue in the pending litigation Accordingly because the Association crossclaim has s been dismissed and because the plaintiffs derivative action has already been attacked by other named defendants the individual plaintiffs may be left with no recourse if it is determined that the roads are owned by the Association Therefore we find that the plaintiffs have a legal right to appeal the district court sjudgment and deny the Muller defendants and the Palmer defendants motion to dismiss the appeal Exceptions Raising the Objection of Prescription In the instant case the plaintiffs filed their action on April 8 2004 naming Highlands Homeowners Association as a defendant The Highlands Homeowners Association filed a crossclaim against all other named defendants in the main demand on July 14 008 asserting virtually identical claims as those raised by the 2 plaintiffs in the main demand and seeking contribution and or indemnification for the payment of all damages for which the Association may be liable The Muller and Bridges defendants and Palmers Inc assert that because the cross claim was filed four years after the main demand it is prescribed pursuant to La C art P 1067 Generally speaking delictual actions are subject to a liberative prescription of one year pursuant to La C art 3492 However La C art 1067 creates a P David Glass Wade Glass Glass Contracting of St Tammany Inc Alternative Design Build Group LLC Gary Salathe and Martin Murphy filed peremptory exceptions raising the objections of no cause of action and no right of action as to the plaintiffs claims In reasons for judgment the district court stated that the roads are owned by the Highlands Homeowners Association However the plaintiffs and the Association in its crossclaim requested a declaratory judgment as to the ownership of the roads which has not been granted or denied and there has been no final judgment as to ownership By judgment dated December 30 2008 the district court dismissed plaintiffs derivative claims contained in their third supplemental and amending petition as they relate to the Glass defendants and the Alternative Design defendants The plaintiffs appealed from this judgment but this court found that the judgment was a partial final judgment without the proper designation as required by La C art 1915 dismissed the appeal and remanded the matter to the trial court P 1 B Vanderbrook v Jean 090918 La App 1st Cir 122309 opinion unpublished limited exception for incidental demands See Reggio v E 071433 p 7 La I T 08 12 15 So 3d 951 956 Louisiana Code of Civil Procedure article 1067 provides An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service ofmain demand or in the case of a third party defendant within ninety days from service of process of the third party demand A crossclaim is classified as an incidental demand by La C art 1031 P For purposes of the exception of prescription we assume that Highlands Homeowners Association crossclaim was not barred by prescription or s peremption at the time the main demand was filed However as stated above the scross claim was not filed until July 14 2008 over four years after Association service of the main demand Accordingly we find that the cross claim is clearly prescribed on its face See Baldi v Mid American Indemnity Company 526 So 2d 281 283 La App 3rd Cir writ denied 531 So 2d 276 La 1988 The plaintiffs assert that Article 1067 is not controlling in this matter because Article 1067 only applies if the crossclaim is otherwise prescribed at the time it is filed Plaintiffs re assert Highlands Homeowners Association s arguments which were raised in the district court in opposition to the defendants exceptions that the Association scross claim was not prescribed at the time it was filed because prescription was interrupted against the other previouslynamed defendants pursuant to the holding in Allstate Insurance Company v Theriot 376 So 2d 950 La 1979 that the timely filing of the main demand in a court of competent jurisdiction and venue on April 8 2004 interrupted prescription as to 5 We note that the parties do not seem to dispute that the crossclaim was not barred by prescription or peremption at the time the main demand was filed Rather the Muller and Palmer defendants argue that the cross claim is now prescribed because the Highlands Homeowners Association failed to file its cross claim until nearly four years after the filing of the main demand well outside the ninetyday grace period X all joint and solidary obligors and that prescription was suspended under the doctrine of contra non valentem while the defendants controlled the board of directors of the Association First we find the argument that the supreme court decision in Allstate s applies to the instant matter to be misplaced Allstate involved a third party intervening in an action seeking personal injury damages arising out of the same accident giving rise to the main demand The supreme court found that prescription was interrupted as to the subsequent claimant because he was closely connected in relationship and interest to the original plaintiff and he entered the timelyfiled suit to assert a claim based upon the same factual occurrence as that timely pleaded Allstate 376 So 2d at 953 954 A similar analysis has been followed when an amended petition seeks to add or substitute a plaintiff See Calbert v Batiste 09 514 p 6 La App 3rd Cir 11 23 So 3d 1031 1035 09 4 don other rg ounds 09 2647 09 2646 La 329 So 3d 1240 31 So 3d rev 10 12 332 However in the instant case Highlands Homeowners Association a named defendant in the main demand filed a cross claim against all other previously named defendants and was not entering the suit as a new or substituted party e The Highlands Homeowners Association sclaims against the Muller defendants arise from their alleged legal malpractice Louisiana Revised Statute 9 Aprovides that n action 5605 o for damages against an attorney whether based upon tort or breach of contract or otherwise arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act omission or neglect or within one year from the date that the alleged act omission or neglect is discovered however even as to actions filed within one year from the date of such discovery in all events such actions shall be filed at the latest within three years from the date of the alleged act omission or neglect The oneyear and three year periods of limitation are peremptive periods within the meaning of La C art 3458 and in accordance with La C art 3461 may not be renounced interrupted or suspended La R 9 Accordingly because the S 5605 B scross claim was not filed until over four years after the filing of the main demand Association it is clearly perempted under La R 9 and plaintiffs arguments regarding interruption S 5605 and suspension are without merit with respect to the Muller defendants See Naghi v Brener 08 2527 La 6 17 So 3d 919 holding in an action governed by La R 9 that 09 26 S 5605 after the termination of the peremptive period the cause of action no longer exists and any right to assert the claim is destroyed thus there is nothing to which an amended or supplemental pleading filed thereafter can relate back 10 Though the Association after a change in board composition in essence re aligned itself with the plaintiffs in the main demand by asserting claims identical to those asserted by the plaintiffs in the derivative action it does not change the fact that the Association had been a party to the action since April 8 2004 and failed to timely assert any claim against the other named codefendants Accordingly we find the rationale for applying the above analysis is inapplicable to the instant matter Further we find plaintiffs argument that the timely filing of the main demand interrupted prescription as to all joint and solidary obligors to be without merit when applied to another obligee The interruption of prescription against one solidary obligor is effective against all solidary obligors and their heirs La C art 1799 Likewise interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors La C art 2324 C Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue and an interruption of prescription resulting from the filing of such a suit continues as long as the suit is pending La C arts 3462 and 3463 Plaintiffs contend that the filing of their main demand asserting that all named defendants were jointly andor solidary liable interrupted prescription in favor of all claims between all the parties However we do not find that the above provisions provide that a suit filed by an obligee against all joint and solidary obligors interrupts prescription as to any claim brought by another oblige co obligor against other coobligors who are joint or solidary tortfeasors these provisions so broadly would extend the To read concept of interruption of prescription to the point that virtually all claims would be imprescriptable and would render La C art 1067 meaningless P Finally plaintiffs assert that the Highlands Homeowners Association s crossclaim is not prescribed because prescription was suspended under contra non valentem while the Association was controlled by defendant board members The doctrine of contra non valentem provides that prescription does not run against one who is ignorant of the facts upon which his or her cause of action is based and is an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues Jackson v Jefferson Parish Clerk of Court 07 963 p 5 La App 5th Cir 4 981 So 08 15 2d 156 160 writ denied 08 1150 La 10 993 So 2d 219 The doctrine is 08 31 applied in four situations but it is only the third situation which provides that prescription is suspended when a defendant himself has done some act effectually to prevent plaintiff from availing himself of his cause of action that plaintiffs Plaintiffs also argue that the fundamental purpose of prescription statutes is to afford a defendant security of mind and affairs if no claim is made timely to protect him from stale claims and the loss of non preservation of relevant proof and to protect him against lack of notification of a formal claim within the prescriptive period See Nini v Sanford Brothers Inc 276 So 2d 262 264 La 1973 Giroir v South Louisiana Medical Center Div Of Hospitals 475 So 2d 1040 1045 La 1985 Accordingly plaintiffs assert because they timely filed an action against the named defendants who are the same defendants named in Highlands Homeowners Association cross claim and because the claims of the plaintiffs and the s Association are identical that the fundamental purposes of prescription statutes are satisfied However we note that the cases applying this rationale all involve amendment of petitions to add plaintiffs or to substitute parties or involve an intervention by a party and whether said intervention relates back Accordingly we find the above principles do not apply to the instant case where a defendant originally named in the main demand files a crossclaim against other originally named codefendants four years following the filing ofthe main demand 8 As stated by the supreme court in Renfroe v State Department of Transportation and Development 01 1646 La 2002 809 So 947 953 the four factual situations in which the 2d doctrine of contra non valentem applies so as to prevent the running of liberative prescription are 1 where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action 2 where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting 3 where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action or 4 where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant 12 contend applies in the instant case See Renfroe v State Department of Transportation and Development 01 1646 p 9 La 2 809 So 2d 947 953 02 26 According to plaintiffs the Highlands Homeowners Association was unable to avail itself of its cause of action because the board of directors of the association was controlled by other individually named codefendants However mere passivity on the part of the defendant board members in failing to pursue legal remedies available to the Association does not rise to the level of actively engaging in a course of conduct designed to prevent the Association from acting See Cyr v Louisiana Intrastate Gas Corporation 273 So 2d 694 697698 La App I st Cir 1973 Further neither the plaintiffs nor the Association have alleged that such inaction on the part of the defendant board members rises to the level of concealment misrepresentation fraud or ill practices See Fontenot v ABC Insurance Co 951707 p 5 La 6 674 So 2d 960 963 Finally as 96 7 evidenced by the plaintiffs own petitions the individual homeowner members of the Association were not deprived of knowledge of the existence of the right See Cyr 273 So 2d at 698 Therefore based on the circumstances of this case and because the doctrine of contra non valentem applies only in exceptional circumstances and must be strictly construed we find that contra non valentem does not apply to suspend the running of Highlands Homeowners Association s cross claim See Ellender v Goldking Production Co 99 0069 p 9 La App 1 st Cir 6 775 So 2d 11 17 writ denied 00 2587 La 2 786 So 2d 96 00 23 01 16 CONCLUSION For the foregoing reasons we remand this matter to the district court as to defendant Willis A Palmer for consideration of the exception raising the objections of no cause of action and no right of action filed by counsel for the deceased Mr Palmer Additionally we vacate the order dismissing the cross claim 13 and deny the Muller defendants and the Palmer defendants motions to dismiss the appeal In all other respects we affirm the judgment of the district court sustaining in part the peremptory exceptions raising the objection of prescription and dismissing the Highlands Homeowners Association stort claims as presented in its crossclaim against the defendants appellees All costs of this appeal are assessed to the plaintiffs appellants MOTION TO DISMISS APPEAL DENIED ORDER DISMISSING CROSSCLAIM VACATED JUDGMENT AFFIRMED AND REMANDED 14

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