Jeanes v. McBride et al, No. 6:2016cv01259 - Document 190 (W.D. La. 2019)

Court Description: ORDER AND REASONS granting 112 Motion for Summary Judgment; denying 114 Motion for Summary Judgment; granting 147 Motion in Limine. Signed by Judge Susie Morgan on 6/4/2019. (crt,Jordan, P)

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Jeanes v. McBride et al Doc. 190 U N ITED S TATES D ISTRICT COU RT W ESTERN D ISTRICT OF LOU ISIAN A JAN ET JEAN ES, Pla in tiff CIVIL ACTION VERSU S N O. 16 -12 59 GREG MCBRID E, ET AL., D e fe n d a n ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a m otion for partial sum m ary judgm ent filed by Plaintiff J anet J eanes 1 and a m otion for sum m ary judgm ent filed by Defendant Greg McBride. 2 The m otions are opposed. 3 For the following reasons, the Court GRAN TS J eanes’ m otion for partial sum m ary judgm ent and D EN IES McBride’s m otion for sum m ary judgm ent. The Court also GRAN TS Plaintiff’s m otion in lim ine to exclude evidence regarding the contractor im m unity defense laid out in LA. R EV. STAT. § 9:2771. 4 BACKGROU N D J eanes owns property located at 2534 Ham pton Dupre Road in Pine Prairie, Louisiana. 5 In the sum m er of 20 10 , she began discussing the construction of a building on the property (“the Building”) with McBride. 6 J eanes alleges she told McBride the Building was intended to include space for her horses an d living quarters for herself. 7 She alleges that, although she and McBride agreed McBride would not construct the living 1 R. Doc. 112. R. Doc. 114. 3 R. Docs. 127, 141. 4 R. Doc. 147. The m otion is opposed. R. Doc. 165. 5 R. Doc. 174 at 8, ¶ 7(1) (un contested m aterial facts in pretrial order). 6 Id. at 9, ¶ 7(2). 7 R. Doc. 141-2 at 1– 2, ¶¶ 1– 3. 2 1 Dockets.Justia.com quarters, he knew the Building would contain living quarters an d for that reason would require an inspection. 8 It is uncontested McBride subm itted a proposal to J eanes, which she signed on Septem ber 23, 20 10 (“the Proposal”). 9 The m aterials an d plans for the roof of the Building were provided by S & S Steel Buildings, Inc., doing business as Metal Roofing Supply (“S & S”). 10 Roy Bergis Sm ith, through his com pany, E. Sm ith Plum bing Service, Inc. (“E. Sm ith Plum bing”), provided plum bing services for the Building. 11 McBride alleges the Building was com pleted in 20 11, and J eanes began using the Building to store farm supplies, equipm ent, and hay. 12 During the years 20 10 to 20 15, J eanes em ployed Bobby Nacio to feed her horses and take care of the property on which the Building is located. 13 J ean es represents she left Louisiana in 20 11 and returned in the fall of 20 15. 14 She alleges she began to discover defects in the Building in the fall of 20 15 and continued to discover defects through the sum m er of 20 16. 15 Specifically, J eanes alleges she dug underneath colum ns of the Building in two locations and found a sixteen -inch concrete slab, rather than the eightfoot footings and 290 feet of a 24-inch deep chain wall specified in the Proposal. 16 On Septem ber 9, 20 16, J eanes filed the in stant suit. 17 In her Com plaint and Am ended Com plaint, she nam es five Defendants: McBride; Metal Buildings by Mac, LLC (“Metal Buildings”); S & S; Roy Bergis Sm ith; and E. Sm ith Plum bing. She brings five 8 Id. at 2, ¶ 4. R. Doc. 174 at ¶¶ 7(2), (3). The proposal is on the record at R. Doc. 112-3. 10 Id. at ¶¶ 7(6), (7). 11 Id. at ¶ 7(8). 12 R. Doc. 114-3 at 3, ¶ 15. 13 R. Doc. 174 at 9, ¶ 7(9). 14 R. Doc. 141-2 at 7– 8 , ¶¶ 41– 42. 15 Id. at 8, ¶ 44. 16 Id. at 9, ¶ 51. 17 R. Doc. 1. 9 2 claim s: (1) breach of contract against all Defendants, (2) negligence against S & S, (3) fraud against all Defendants, (4) violation of the Louisiana Unfair Trade Practices Act (“LUTPA”) 18 against all Defendants, and (5) successor liability again st Metal Buildings. 19 The claim s against all Defendants but McBride have been dism issed. 20 The claims against McBride are for breach of contract, fraud, and violation of LUTPA. 21 On April 5, 20 19, J eanes an d McBride filed the instant m otions for sum m ary judgm ent. 22 In her m otion, J eanes argues she is entitled to partial sum m ary judgm ent that McBride is not entitled to contractor imm unity under LA. R EV. STAT. § 9:2771. 23 In his m otion, McBride argues he is entitled to sum m ary judgm ent that all of J eanes’ claim s against him are perem pted, pursuant to LA. R EV. STAT. § 9:2772(A). 24 In the alternative, he argues he is entitled to sum m ary judgm ent on (1) the breach of contract claim because he is entitled to im m unity under LA. R EV. STAT. § 9:2771; (2) the fraud claim because J eanes has failed to m eet the pleading requirem ents of Rule 9(b) of the Federal Rules of Civil Procedure and failed to present evidence of fraud; an d (3) the LUTPA claim because it has prescribed, and J eanes has presented no eviden ce of LUTPA violations. 25 The m otions are opposed. 26 18 LA. R EV. STAT. § 51:140 1 et seq. R. Docs. 1, 35. 20 R. Docs. 55 (dism issin g claim s against S&S without prejudice), 67 (dism issin g claim s against Metal Buildin gs without prejudice), 78 (dismissing claims against S&S with prejudice), 84 (dism issin g claim s against Metal Buildin gs with prejudice), 160 (notice of settlem ent of claim s again st Roy Bergis Sm ith and E. Sm ith Plum bin g Service, Inc.). 21 R. Doc. 1. 22 R. Docs. 112, 114. 23 R. Doc. 112-1. 24 R. Doc. 114-1 at 11– 15. 25 Id. at 15– 24. 26 R. Docs. 127, 141. 19 3 On May 9, 20 19, J eanes filed a m otion in lim ine to exclude evidence relating to McBride’s contractor im m unity defense. 27 McBride opposes the m otion. 28 The Court will address this argum ent in conjunction with J eanes’ m otion for partial sum m ary judgm ent on LA. R EV. STAT. § 9:2771. SU MMARY JU D GMEN T STAN D ARD Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact an d the m ovant is entitled to judgm ent as a m atter of law.”29 “An issue is m aterial if its resolution could affect the outcom e of the action.”30 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”31 All reasonable inferences are drawn in favor of the nonm oving party. 32 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the nonm oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 33 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”34 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the nonm oving 27 R. Doc. 147. R. Doc. 165. 29 F ED . R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). 30 DIR ECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 31 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8); see also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 32 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 33 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 34 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 28 4 party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does in deed exist. 35 If the dispositive issue is one on which the nonm oving party will bear the burden of persuasion at trial, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative eviden ce that negates an essential elem ent of the nonm ovant’s claim , or (2) dem onstrating there is no eviden ce in the record to establish an essential elem ent of the nonm ovant’s claim . 36 When proceeding under the first option, if the nonm oving party cann ot m uster sufficient eviden ce to dispute the m ovant’s contention that there are no disputed facts, a trial would be useless, and the m oving party is entitled to sum m ary judgm ent as a m atter of law. 37 When, however, the m ovant is proceeding under the second option and is seeking sum m ary judgm ent on the ground that the nonm ovant has no evidence to establish an essential elem ent of the claim , the nonm oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting eviden ce already in the record that was overlooked or ignored by the m oving party.”38 Under either scenario, the burden then shifts back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the nonm ovant. 39 If the m ovant m eets this 35 Celotex, 477 U.S. at 322– 24. Id. at 331– 32 (Brennan, J ., dissenting); see also St. Am ant v. Benoit, 80 6 F.2d 1294, 1297 (5th Cir. 1987) (citing J ustice Brennan’s statem ent of the sum m ary judgm ent standard in Celotex, 477 U.S. at 322– 24, and requirin g the m ovants to subm it affirm ative evidence to negate an essential elem ent of the nonm ovant’s claim or, alternatively, dem onstrate the non m ovant’s evidence is insufficient to establish an essential elem ent); Fano v. O’N eill, 80 6 F.2d 1262, 1266 (citing J ustice Brennan’s dissent in Celotex, and requirin g the m ovant to m ake an affirm ative presentation to negate the nonm ovant’s claim s on sum m ary judgm ent); 10 A CHARLES ALAN W RIGHT, ARTHUR R. M ILLER & M ARY KAY KANE , F EDERAL P RACTICE AND P ROCEDURE §2727.1 (20 16) (“Although the Court issued a five-to-four decision, the m ajority an d dissent both agreed as to how the sum m ary-judgm ent burden of proof operates; they disagreed as to how the standard was applied to the facts of the case.” (internal citations om itted)). 37 First N at’l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 28 8 – 89 (198 0 ); Anderson v. Liberty Lobby , Inc., 477 U.S. 242, 249– 50 (1986). 38 Celotex, 477 U.S. at 332– 33. 39 Id. 36 5 burden, “the burden of production shifts [back again] to the nonm oving party, who m ust either (1) rehabilitate the evidence attacked in the m oving party’s papers, (2) produce additional eviden ce showing the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explaining why further discovery is necessary as provided in Rule 56(f).”40 “Sum mary judgm ent should be granted if the nonm oving party fails to respond in one or m ore of these ways, or if, after the nonm oving party responds, the court determ ines that the m oving party has m et its ultim ate burden of persuading the court that there is no genuine issue of m aterial fact for trial.”41 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific eviden ce in the record an d to articulate the precise m anner in which that evidence supports the claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”42 AN ALYSIS McBride argues that J eanes’ claim s against him have been perem pted under the five-year perem ption period in LA. R EV. STAT. § 9:2772(A). 43 Im portantly, the five-year perem ption period under § 9:2772(A) does not apply if “fraud has caused the breach of contract or dam ages sued upon.”44 As a result, the Court first addresses McBride’s argum ent that he is entitled to sum m ary judgm ent on J ean es’ fraud claim against him and that, as a result, § 9:2772(A) applies. Secon d, the Court addresses McBride’s 40 Id. at 332– 33, 333 n.3. see also First N at’l Bank of Ariz., 391 U.S. at 289. 42 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 (5th Cir. 1992)). 43 R. Doc. 114-1 at 11– 15. 44 LA. R EV. STAT. § 9:2772(H)(1). 41 Id.; 6 argum ent that all of J eanes’ claim s against him are perem pted under § 9:2772(A). Third, the Court addresses the parties’ m otions for sum m ary judgm ent with respect to whether McBride is entitled to im m unity on J eanes’ breach of contract claim against him under LA. R EV. STAT. § 9:2771 and J eanes’ m otion in lim ine on the sam e issue. Finally, the Court addresses McBride’s argum ents that he is entitled to sum m ary judgm ent on J eanes’ LUTPA claim against him . I. McBrid e is n o t e n title d to s u m m ary ju d gm e n t o n Je an e s ’ frau d claim again s t h im . McBride argues he is entitled to sum m ary judgm ent on J ean es’ fraud claim against him . 45 He first argues J eanes has not m et the pleading requirem ents of Rule 9(b) of the Federal Rules of Civil Procedure. 46 He also argues J eanes has failed to show evidence of fraud and, as a result, there are no genuine issues of m aterial fact, it is undisputed that he has not engaged in fraud, and he is entitled to judgm ent as a m atter of law. 47 The Court construes his m otion for sum m ary judgm ent on J eanes’ fraud claim as a m otion to dism iss the claim under Rule 9(b) and, in the alternative, a m otion for sum m ary judgm ent on the claim . A. Ple ad in g Article 19 5 3 Frau d U n d e r Ru le 9 ( b) Under Rule 9(b) a party m ust state with particularity the circum stances constituting the fraud of m istake alleged in the com plaint. In this case, J eanes states she brings her fraud claim under article 1953 of the Louisian a Civil Code. 48 She does not bring a claim for delictual fraud under article 2315. 49 Article 1953 provides: 45 R. Doc. 114-1 at 18– 21. Id. at 18– 19. 47 Id. at 19– 21. 48 R. Doc. 1 at 10 , ¶ 35; R. Doc. 141 at 30 . 49 “Delictual recovery for fraud is provided for in Article 2315, the general tort provision of the Civil Code.” Equilease Corp. v. Sm ith In t'l, Inc., 58 8 F.2d 919, 924 n .4 (5th Cir. 1979) J eanes’ com plaint cites only article 46 7 Fraud is a m isrepresentation or a suppression of the truth m ade with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud m ay also result from silence or inaction . 50 The article is in the chapter of the Civil Code governing “Conventional Obligations or Contracts,” in the section entitled “Vices of Consent,” which addresses error, fraud, and duress. 51 The article contem plates fraud in the form ation of a con tract, not fraud in perform ing a contract. 52 “[T]here are three basic elem ents to an action for fraud against a party to a contract: (1) a m isrepresentation, suppression, or om ission of true inform ation; (2) the intent to obtain an unjust advantage or to cause dam age or inconven ience to another; and (3) the error induced by a fraudulent act must relate to a circum stance substantially influencing the victim 's consent to (a cause of) the contract.”53 “Fraud n eed only be proved 1953. R. Doc. 1 at 10 , ¶ 35. Although the “jurisprudence surrounding fraud under Article 1847[, portions of which were restated in articles 1953– 58,] is carried over to the delictual action,” Equilease, 58 8 F.2d at 924 n.4, J eanes does not brin g a claim for delictual fraud in her Com plaint. The Court notes that, in her opposition to McBride’s m otion for sum m ary judgm ent, J eanes recites the elem ents of delictual fraud. R. Doc. 141 at 30 . She quotes N ew port Ltd. v. Sears, Roebuck & Co., 6 F.3d 10 58 (5th Cir. 1993), which lists the elem ents of delictual fraud pursuant to Civil Code article 2315, not contractual fraud pursuant to article 1953. Id. at 10 68. However, she seeks rescission and attorneys’ fees, R. Doc. 1 at 10 , ¶ 38. These rem edies are addressed in LA. CIV. CODE art. 1958, which deals with contractual fraud, not delictual fraud. See also Douglas v. Renola Equity Fund II, LLC;, No. CIV.A. 13-6192, 20 14 WL 10 50 851, at *4 (E.D. La. Mar. 14, 20 14) (Vance, J .) (distinguishin g between contractual and delictual fraud); Leon H. Ritten berg III, Louisiana’s Tenfold Approach to the Duty to Inform , 66 Tul. L. Rev. 151, 169– 85 (1991) (explain ing distinction between contractual and delictual fraud actions). 50 LA. CIV. CODE art. 1953. 51 Id. 52 “French doctrine distinguishes between fraud com m itted to entice a party into a contract (dol) and fraud in perform in g a contract (fraude).” LA. CIV. CODE art. 1958 cm t. (b). Article 1953, which is a restatem ent of article 1847(6) of the 1870 Civil Code, see LA. CIV. CODE art. 1953 cm t. (a), addresses only dol, or fraud com m itted to entice a party into a contract. Fraud in perform ing a contract, is addressed in LA. CIV. CODE art. 1997, which addresses obligors in bad faith. See id. cm t. (c) (“In the context of vices of consent, ‘fraud’ m eans a stratagem or m achination to take unfair advantage of another party. ‘Bad faith’ better conveys the intended m eaning here, that is, an intentional and m alicious failure to perform .”). Article 1997 restates article 1934(2) of the 1870 Civil Code, which addressed fraude. See LA. CIV. CODE art. 1958 cm t. (b) (“[F]raud in perform in g a contract (fraude) . . . is the kind of fraud contem plated in C.C. Art. 1934 (1870 ).”). 53 Shelton v. Standard/ 70 0 Assocs., 20 0 1-0 587 (La. 10 / 16/ 0 1), 798 So. 2d 60 , 64; see also Petrohaw k Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380 , 38 8 (5th Cir. 20 12). 8 by a prepon derance of the eviden ce an d m ay be established by circum stantial evidence.”54 “Circum stantial evidence, in cluding highly suspicious facts and circum stances, m ay be considered in determ ining whether fraud has been com m itted.”55 In Autom atic Coin Enterprises, Inc. v. Vend-Tronics, Inc., the Louisiana Fifth Circuit Court of Appeal clarified that the legal standard for showing fraud is the intention not to perform at the tim e the prom ise is m ade because it constitutes a m isrepresentation of a present rather than a future fact: The jurisprudence is clear that fraud cannot be im puted from alleged m isrepresentation(s) alone but, rather, m ust be based solely on a person's intent not to perform . The gen eral rule is that an action for fraud cannot be asserted based upon statem ents prom issory in nature and relating to future actions. Neither can fraud be predicated upon the m ere failure to perform a prom ise, nor is nonperform ance of an agreem ent to do som ething at a future tim e alone evidence of fraud. . . . However, fraud also m ay be predicated on prom ises m ade with the intention not to perform at the tim e the prom ise is m ade. It has been held that prom ises m ade without any intention of perform ance constitute a m isrepresentation of a present rather than a future fact. 56 B. D e fe n d a n t’s Mo tio n to D is m is s U n d e r Ru le 9 ( b) McBride argues J eanes has not m et the pleading requirem ents for fraud in Rule 9(b) of the Federal Rules of Civil Procedure. 57 Rule 9(b) governs pleading standards for fraud claims, in cludin g state-law fraud claims. 58 “A dism issal for failure to state fraud with particularity as required by Rule 9(b) is a dism issal on the pleadings for failure to 54 LA. CIV. CODE art. 1957. Lom ont v. Bennett, 20 14-2483 (La. 6/ 30 / 15), 172 So. 3d 620 , 629 (citations om itted). 56 433 So. 2d 766, 767– 68 (La. Ct. App.), w rit denied, 440 So. 2d 756 (La. 1983) (em phasis in original) (citation om itted). 57 Id. at 18– 19. 58 Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 – 39 (5th Cir. 20 0 8) (“[S]tate-law fraud claim s are subject to the pleadin g requirem ents of Rule 9(b).”) (citing Abram s v . Baker Hughes Inc., 292 F.3d 424, 430 (5th Cir.20 0 2); W illiam s v. W M X Technologies, Inc., 112 F.3d 175, 177 (5th Cir.1997)). 55 9 state a claim .”59 “Therefore, the tim e lim its applicable to m otions to dism iss under Rule 12(b)(6) should apply, and a party m ay challenge the sufficiency of allegations of fraud in any pleading.”60 Failure to state a claim upon which relief m ay be granted is a defense that m ay be raised at trial. 61 The instant m otion to dism iss under Rule 9(b) was filed before the deadline for dispositive m otions in this case an d is tim ely. Rule 9(b) provides, “In alleging fraud or m istake, a party m ust state with particularity the circum stances constituting fraud or m istake. Malice, intent, knowledge, and other con ditions of a person's m ind m ay be alleged gen erally.”62 “What constitutes ‘particularity’ will necessarily differ with the facts of each case and hence the Fifth Circuit has never articulated the requirem ents of Rule 9(b) in great detail.”63 The Fifth Circuit “interprets Rule 9(b) strictly, requiring the plaintiff to specify the statem ents contended to be fraudulent, identify the speaker, state when and where the statem ents were m ade, and explain why the statem ents were fraudulent.”64 “At a m inim um , Rule 9(b) requires allegations of the particulars of tim e, place, and contents of the false representations, as well as the identity of the person m aking the m isrepresentation an d what he obtained thereby.”65 59 Shushany v. Allw aste, Inc., 992 F.2d 517, 520 (5th Cir. 1993) (citin g Guidry v. Ban k of LaPlace, 954 F.2d 278, 281 (5th Cir.1992)). 60 Key Bank N at. Ass'n v . Perkins Row e Assocs., Inc., No. CIV.A. 0 9-497-J J B-SR, 20 10 WL 494220 6, at *2 (M.D. La. Nov. 30 , 20 10 ) (unpublished) (citing F ED. R. CIV. P. 12(h)(2)(A)); see also C&C Inv. Properties, L.L.C. v. Trustm ark N at'l Bank, 838 F.3d 655, 660 (5th Cir. 20 16) (“[E]ven when there is no apparent reason for doing so, the rules allow a defendant to assert an affirm ative defense that m ay have been suitable for Rule 12(b)(6) disposition at the sum m ary judgm ent stage.”). 61 F ED . R. CIV. P. 12(h)(2)(C). 62 F ED . R. CIV. P. 9(b). 63 Guidry , 954 F.2d at 28 8. 64 Flaherty & Crum rine Preferred Incom e Fund, Inc. v. TXU Corp., 565 F.3d 20 0 , 20 7 (5th Cir.20 0 9). 65 Tel– Phonic Services, Inc. v . TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992). 10 The Civil Code specifies that contractual fraud m ay “result from silence or inaction.”66 “To find fraud from silence or suppression of the truth, there m ust exist a duty to speak or to disclose inform ation.”67 “Fraud by om ission or silence ‘is by its very nature difficult to plead with particularity. Because it does not in volve an affirm ative m isrepresentation, it often does not occur at a specific place or precise tim e, or involve specific persons.’”68 The Fifth Circuit has held that “[i]n cases concerning fraudulent m isrepresentation an d om ission of facts, Rule 9(b) typically requires the claim ant to plead the type of facts om itted, the place in which the om issions should have appeared, and the way in which the om itted facts m ade the representations m isleading.”69 The section of the Com plaint on J eanes’ fraud claim states: 34. Plaintiff hereby in corporates by reference the allegations set forth in the preceding paragraphs as if they were fully rewritten herein. 35. Defendants suppressed plaintiff’s discovery of the defects in the Barn, in cluding, but not lim ited to, the defects with the foundation and the plum bing of the Barn, by failing to schedule tim ely inspections as required by the RAPC, thereby preventing the Building inspectors and the plaintiff from discovering the defects. See La. C.C. art. 1953. 36. Upon inform ation and belief, the defendants did the foregoing in order to obtain an unjust advantage over the plaintiff by obtaining the full value of the contract price from J eanes while deliverin g a substandard Barn in order to save tim e and expense. 37. The defendants had a further and continuing duty to disclose the defects in the Barn to the plaintiff, which the defendants have never done. 66 LA. CIV. CODE art. 1953. Greene v. Gulf Coast Bank, 593 So. 2d 630 , 632 (La. 1992). 68 First Am . Bankcard, Inc. v . Sm art Bus. Tech., Inc., 178 F. Supp. 3d 390 , 40 2 (E.D. La. 20 16) (Clem ent, J .). 69 Carroll v. Fort Jam es Corp., 470 F.3d 1171, 1174 (5th Cir. 20 0 6) (quotin g United States ex rel. Riley v . St. Luke's Episcopal Hosp., 355 F. 3d 370 , 381 (5th Cir. 20 0 4)). 67 11 38. Therefore, plaintiff is entitled to obtain a rescission of the contract, dam ages, and attorney fees. 70 The factual background section in cludes an allegation that McBride and Roy Bergis Sm ith did not “contact the appropriate perm itting authority to inspect the property” during construction. 71 The Court finds the Com plaint alleges the details of the alleged fraud with particularity. The Com plaint includes allegations that the Defendants, including McBride, m ade a m isrepresentation at the tim e the contract was form ed that the Building would be constructed in accordance with the McBride proposal. It also includes allegations that the Defendants, in cluding McBride, m ade om issions thereafter, an d that they gained additional profit from the job thereby. In this case, J eanes sufficiently alleges the fraud is “predicated on prom ises m ade with the intention not to perform at the tim e the prom ise is m ade.”72 The Com plaint sufficiently alleges McBride did not intend to perform the contract at the tim e he gave J eanes the Proposal, but rather intended to “obtain[] the full value of the contract price from J eanes while delivering a substandard Barn in order to save tim e and expense.”73 The Com plaint also alleges McBride rem ained silent, when he had a duty to disclose, because he suppressed J eanes’ discovery of alleged defects in the foundation and plum bing of the Building in order to save m oney. As a result, the Court finds J eanes has pleaded sufficient facts to state a claim for fraud and denies McBride’s m otion to dism iss under Rule 9(b). 70 R. Doc. 1 at 10 . at 5, ¶ 15. 72 Autom atic Coin, 433 So. 2d at 767– 68 (em phasis in original). 73 R. Doc. 1 at 10 , ¶ 36. 71 Id. 12 C. Mo tio n fo r Su m m ary Ju d gm e n t o n Frau d Cla im First, the Court notes that “sum m ary judgm ent is seldom appropriate for determ inations based on subjective facts of m otive, intent, good faith, knowledge, or m alice.”74 “One reason for this rule is that subjective facts call for credibility evaluations and the weighing of testim ony and sum m ary judgm ent is not warranted for such determ ination s.”75 At the sum m ary judgm ent stage, “courts can not consider the m erits, m ake credibility determ inations, evaluate testim ony or weigh evidence.”76 McBride argues J eanes has failed to dem onstrate a genuine issue of m aterial fact exists with respect to her fraud claim against him . 77 The Court determ ines whether there are genuine factual disputes with respect to whether McBride poured the concrete foundation according to the parties’ agreem ent. McBride states it is an undisputed fact that the Proposal does not item ize a cost for concrete. 78 Although this m ay be true, J eanes testified at her deposition that she paid McBride $ 35,0 0 0 for concrete. 79 More im portantly, the Proposal, prepared by McBride an d sign ed by J ean es, includes as a lineitem “290 ’ Of Concrete Chain Wall Accordin g to Plans; Sixteen- 2’ × 8’ Concrete Shafts According To Plans.”80 J eanes states in her deposition that, when she dug underneath the Building, she found there was a sixteen-inch slab of concrete, rather than the eight-foot footings and 290 feet in length of a 24-in ch-deep chain wall agreed to in the contract. 81 With respect to J eanes’ claim that McBride fraudulently m isrepresented that he would 74 Jones v. Estate of Santiago, 20 0 3-1424 (La. 4/ 14/ 0 4), 870 So. 2d 10 0 2, 10 0 6. Helw ick v. Montgom ery Ventures Ltd., 95-0 765 (La. App. 4 Cir. 12/ 14/ 95), 665 So. 2d 130 3, 130 6, w rit denied, 96-0 175 (La. 3/ 15/ 96), 669 So. 2d 424. 76 Sm ith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/ 5/ 94), 639 So. 2d 730 , 751. 77 R. Doc. 114-1 at 19– 21. 78 R. Doc. 114-2 at 4, ¶ 22. 79 R. Doc. 141-14 at 15– 16. 80 R. Doc. 141-4 at 2. 81 Id. at 25– 27. 75 13 build the foundation in accordan ce with the Proposal, J ean es has established factual disputes as to whether McBride intended to pour or did pour the concrete as required in the Proposal. With respect to J ean es’ claim that McBride fraudulently concealed the alleged defects by not obtaining inspections for the Building, McBride asserts it is undisputed that, according to Blake Steiner, an em ployee of the Rapides Area Planning Com m ission, no inspections were n ecessary under J eanes’ perm it for the barn, and McBride could construct the barn without obtaining inspections. 82 J eanes also disputes these assertions. 83 She cites other portions of Steiner’s depositions, in which Stein er testifies inspection s were required. 84 J eanes also cites McBride’s deposition testim ony in which he stated that J eanes m ade him aware she in tended to have the Building be “m ixed use,” m eaning com m ercial and residential, an d that residential construction requires inspection s. 85 The Court finds J eanes has established a genuine issue of m aterial fact as to whether McBride agreed to provide the living quarters, whether he failed to schedule an inspection even though he knew J eanes in tended for the Buildin g to be “m ixed use,” and whether he knew an inspection was required. Genuin e issues of m aterial fact preclude sum m ary judgm ent on J eanes’ fraud claim . II. Ge n u in e is s u e s o f m a te ria l fa ct p re clu d e s u m m ary ju d gm e n t o n th e is s u e o f w h e th e r a ll o f Je a n e s ’ cla im s a re p e re m p te d . Because the Court denies McBride’s m otion for sum m ary judgm ent on J eanes’ fraud claim , the Court m ust exam ine whether the five-year perem ptive period in LA. R EV. STAT. § 9:2772(A) applies. 82 R. Doc. 114-2 at 4– 5, ¶¶ 25, 26. R. Doc. 141-1 at 8 , ¶¶ 25, 26. 84 R. Doc. 141-9 at 7– 8 , 32. 85 R. Doc. 141-3 at 41– 42, 49. 83 14 A. Pe re m p tio n u n d e r LA. R EV . S TAT. § 9 :2 772 ( A) LA. R EV. STAT. § 9:2772(A) provides: Except as otherwise provided in this Subsection, n o actio n , w h e th e r e x co n tra ctu , e x d e licto , o r o th e rw is e , including but not lim ited to an action for failure to warn, to recover on a contract, or to recover dam ages, or otherwise arising out of an engagem ent of planning, construction, design, or building im m ovable or m ovable property which m ay include, without lim itation, consultation, planning, design s, drawings, specification, investigation, evaluation, m easuring, or adm inistration related to any building, construction, dem olition, or work, s h all be bro u gh t against an y person perform ing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not lim ited to those services preparatory to construction, or again s t a n y p e rs o n p e rfo rm in g o r fu rn is h in g th e d e s ign , p la n n in g, s u p e rvis io n , in s p e ctio n , o r o bs e rvatio n o f co n s tru ctio n o r th e co n s tru ctio n o f im m o va ble s , or im provem ent to im m ovable property, including but not lim ited 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 m ortgage office of acceptance of the work by owner. (b) If no such acceptan ce is recorded within six m onths from the date the owner has occupied or taken possession of the im provem ent, in whole or in part, m ore than five years after the im provem en t has been thus occupied by the owner. 86 Under the statute, if applicable, the five-year perem ptive 87 period applies to all claim s m ade in this action, whether in contract, tort, or otherwise. “Perem ption is a period of tim e fixed by law for the existence of a right. Unless tim ely exercised, the right is extinguished upon the expiration of the perem ptive period.”88 Perem ption need not be 86 LA. R EV. STAT. § 9:2772(A) (em phasis added). The section is entitled “Perem ptive period for actions involvin g deficiencies in surveying, design, supervision , or construction of im m ovables or im provem ents thereon .” See also LA. R EV. STAT. § 9:2772(A)(1)(c) (referring to the “five-year perem ptive period described in Subparagraph (a)”). 88 LA. CIV. CODE art. 3458. 87 15 pleaded. 89 “Perem ption m ay not be ren ounced, interrupted, or suspended.”90 “Perem ptive statutes are strictly construed against perem ption an d in favor of the claim . Of the possible constructions, the one that m aintains enforcem ent of the claim or action, rather than the one that bars enforcem ent should be adopted.” 91 “Ordin arily, the exceptor bears the burden of proof at the trial of the perem ptory exception.”92 Accordingly, McBride bears the burden of proof on the issue of perem ption. He m ust show there is no genuine issue of fact that the perem ptive period began m ore than five years before J eanes filed suit. It is undisputed that J eanes did not obtain a certificate of occupancy for the Building. 93 There is no evidence that acceptan ce of the work was registered in a m ortgage office. As a result, the applicable legal standard is whether J eanes occupied or took possession of the Building m ore than five years before Septem ber 6, 20 16. The statute and the cases interpreting the statute do not clearly define “occupied” or “taken possession.” The Court interprets this as a factual quesiton to be determ ined on a case-by-case basis. McBride asserts it is uncontested “Nacio testified that he began to use an d store farm supplies, farm equipm ent and hay in the barn building in February of 20 11” and that “prior to an d following com pletion of the barn in February of 20 11 the barn was used for J anet J ean es’ horse breeding operations.”94 McBride cites portions of Nacio’s affidavit, in which he states the Building was “continuously used as a barn for the storage of hay, farm supplies, and farm equipm ent prior to and after its com pletion in February of 20 11” and 89 LA. CIV. CODE art. 3460 . LA. CIV. CODE art. 3461. 91 Rando v. Anco Insulations Inc., 20 0 8-1163 (La. 5/ 22/ 0 9), 16 So. 3d 10 65, 10 83 (citation om itted). 92 Id. at 10 82. 93 R. Doc. 141 at 17; R. Doc. 154. 94 R. Doc. 114-3 at 3, ¶¶ 15, 16. 90 16 for “horse breeding activities prior to and after its com pletion in February of 20 11.”95 McBride further argues the Building “was always in the possession of J eanes because it was built on her property” and that it was “occupied in part an d whole by J ean es for use as a barn beginning in February of 20 11.”96 McBride points to J ean es’ testim ony that “after the barn was com pleted, she stored the farm equipm ent in her barn.”97 He cites a portion of the transcript of J eanes’ deposition in which she states, “We told Bobby Nacio m y m achinery, m y tractors, m y 38foot hay trailer, everything is supposed to be inside the barn”98 to support his contention that the Building was occupied in February 20 11. McBride m ischaracterizes J eanes’ deposition testim ony about her instructions to Nacio. During her deposition, J ean es does not state on which date during Nacio’s 20 11– 15 em ploym ent she told Nacio her equipm ent was “supposed to be inside the barn.”99 J eanes points to evidence that the facts cited by McBride are in dispute. 10 0 During her deposition, she testified the barn had no lights an d no electricity. 10 1 She stated, “The barn was n ever used. The barn has never been used, until we started getting ready to work on the barn.”10 2 She also stated that by “working on the barn,” she m eant “[t]o get the electricity, to get the water to get a trailer house for som ebody to live in, to live on the property,” and this work “didn’t happen until 20 16.”10 3 In her affidavit, she states she “did 95 R. Doc. 114-5 at 3, ¶¶ 6, 7. R. Doc. 114-1 at 14. 97 R. Doc. 114-3 at 3, ¶ 14. 98 R. Doc. 114-7 at 6. 99 Id. 10 0 R. Doc. 141-1 at 4– 5, ¶¶ 14– 16. 10 1 R. Doc. 141-14 at 12. 10 2 Id. 10 3 Id. at 13. 96 17 not use the Building at all to house horses until after [she] returned to Louisiana in the fall of 20 15.”10 4 J eanes’ testim ony that she did not use the Building and there were no horses in the building until she returned to Louisian a in 20 15 creates a genuin e factual dispute as to when J eanes occupied or took possession of the Building. As a result, the Court denies McBride’s m otion for sum m ary judgm ent on perem ption grounds. The jury will determ ine the date on which J eanes occupied or took possession of the Building. III. Th e ju ry w ill d e te rm in e w h e th e r th e frau d e xe m p tio n in LA. R EV . S TAT. § 9 :2 772 ( H ) p re clu d e s th e ap p licatio n o f th e five -ye ar p e re m p tive p e rio d . LA. R EV. STAT. § 9:2772(H) establishes the following exception to the five-year perem ptive period in § 9:2772(A): (1) The [five-year] perem ptive period provided by this Section shall not apply to an action to recover on a contract or to recover dam ages against any person enum erated in Subsection A of this Section, whose fraud has caused the breach of contract or dam ages sued upon. ... (3) Fraud, as used in this Section, shall have the sam e m eaning as provided in Civil Code Article 1953. 10 5 The Court denies McBride’s m otion for sum m ary judgm ent on J eanes’ fraud claim against him because there are disputed issues of fact as to whether McBride com m itted fraud. The jury will determ ine whether J ean es is liable for fraud under article 1953 of the Louisiana Civil Code. 10 4 10 5 R. Doc. 141-8 at 5, ¶ 15. LA. R EV. STAT. § 9:2772(H)(1), (3). 18 The jury m ust find whether McBride is liable for fraud before determ ining whether J eanes’ claim s are perem pted under § 9:2772(A). 10 6 If the jury finds McBride liable for fraud, the five-year perem ptive period in § 9:2772(A) will not apply. If the jury finds McBride not liable for fraud, the jury will determ ine when J ean es occupied or took possession of the building, and the breach of contract and LUTPA claim s m ay be perem pted. IV. W ith re s p e ct to th e bre ach o f co n tract claim , Je an e s is e n title d to s u m m a ry ju d gm e n t o n McBrid e ’s a ffirm a tive d e fe n s e o f im m u n ity u n d e r § 9 :2 771. J eanes m oves for sum m ary judgm ent that McBride is not entitled to the statutory im m unity afforded by LA. R EV. STAT. § 9:2771. 10 7 McBride m oves for sum m ary judgm ent on J eanes’ breach of contract claim against him , arguing he is entitled to im m unity under § 9:2771. 10 8 The statute provides: No contractor, including but not lim ited to a residential building contractor as defined in R.S. 37:2150 .1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not m ake or cause to be m ade an d if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becom es evident prior to or after delivery of the work to the owner or prior to or after acceptan ce of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor. 10 9 10 6 LA. R EV. STAT. § 9:2772(H )(2) provides, “In any action in which fraud is alleged, that issue shall be decided by trial separate from and prior to the trial of an y or all other issues.” To the extent this requirem ent applies to cases in federal court, the parties have waived this requirem ent. R. Doc. 179 at 2. 10 7 R. Doc. 112. 10 8 R. Doc. 114-1 at 15– 18. 10 9 LA. R EV. STAT. § 9:2771. 19 A. Alle gatio n s in Co m p la in t w ith re s p e ct to D e s ign D e fe cts McBride argues that J eanes did not allege in her Com plaint that McBride was responsible for design defects in the Building. 110 He argues he was “not put on fair notice to defend such claim s and would be unfairly prejudiced” if he is required to do so. 111 J eanes responds that the Com plaint alleges that McBride was responsible for design defects. 112 In her Com plaint, J ean es m akes the following factual allegation: Upon inform ation and belief, McBride contacted S & S Steel Buildings to design an d m anufacture the Barn, and S & S Steel Buildings did in fact design and m anufacture the m aterials to be used in the construction of the Barn. Upon inform ation and belief, the plaintiff m et with representatives of S & S Steel Buildings, who were doing business as Metal Roofing Supply, to discuss specifics for the design and m anufacture of the Barn. Subsequently, using the design of S & S Steel Buildings, McBride and Metal Buildings by Mac began construction of the Barn. 113 In the portion of her Com plaint regarding her breach of contract claim , which J ean es brought against all Defendants, including McBride, J eanes states: Defendants agreed to provide the plaintiff with a usable, safe, and structurally sound Barn and design an d construct the Barn in a good, workm anlike m anner. Defendants failed to com ply w ith their obligations w hen they defectively designed and constructed the Barn. See La. C.C. arts. 2769, 2762. Plaintiff has suffered dam ages due to defendants’ breach of contract. 114 110 R. Doc. 127 at 5– 7. at 5. 112 R. Doc. 140 at 4– 5. 113 R. Doc. 1 at 4, ¶ 12. 114 Id. at 9, ¶¶ 27– 29 (em phasis added). J eanes also brought a negligence claim only against S&S for dam ages resulting from alleged design defects. Id. at ¶¶ 30 – 33. 111 Id. 20 J eanes clearly states she brings this claim against all Defendan ts, including McBride. The Court finds J ean es’ Com plaint sufficiently alleged McBride is liable for the Building’s allegedly defective design. 115 B. Im m u n ity U n d e r § 9 :2 771 Section 9:2771 provides a contractor with im m unity for work constructed “according to plans or specifications furnished to him which he did not m ake or cause to be m ade an d if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications.”116 The statute is “strictly construed against the party claim ing the im m unity an d m ust not be extended beyond [its] obvious m eaning.”117 In their joint pretrial order, the parties state it is undisputed that S & S, not McBride, m ade the plans and specifications for the Building. 118 However, during the pretrial conference, the parties clarified that S & S furnished the plans for the m etal roof the Building, but not for the foundation of the Building. 119 To the extent there were plans for the foundation of the Building, they were m ade by McBride in connection with the Proposal. 120 Because McBride m ade the plan s for the foundation of the Building, he is not 115 McBride relies on Harris Builders, L.L.C. v . URS Corp., 861 F. Supp. 2d 746 (E.D. La. 20 12) to argue he is entitled to sum m ary judgm ent because LA. R EV. STAT. § 9:2771 does not give a plaintiff a cause of action for alleged design defects. R. Doc. 127 at 6. In Harris Builders, the court held § 9:2771 did not provide a general contractor with a cause of action against an engineer that prepared plans and specifications. 861 F. Supp. 2d at 754. Harris Builders does not preclude an owner from bringing a breach of contract claim against a contractor for dam ages arisin g from design defects. 116 LA. R EV. STAT. § 9:2771 (em phasis added). 117 Caskey v. M errick Const. Co., 46,8 86 (La. App. 2 Cir. 3/ 14/ 12), 86 So. 3d 186, 192, w rit denied, 20 120 847 (La. 6/ 1/ 12), 90 So. 3d 442 (citing Monteville v . Terrebonn e Parish Consolidated Govern m ent, 567 So.2d 10 97 (La.1990 )). 118 The parties agree it is an undisputed fact “[t]he m aterials and the plans for the Building were provided by S&S.” R. Doc. 174 at 9, ¶ 7(6). 119 R. Doc. 179 at 2. 120 Id. 21 entitled to im m unity under § 9:2771 on an y claim s arising from alleged defects in the foundation. The Court turns to whether McBride is entitled to im m unity under § 9:2771 on any claim s arising from defects in the roof or elsewhere in the building. The Court m ust determ ine whether McBride caused the plans and specifications to be m ade with respect to those portions of the Building. Louisiana courts of appeal consistently hold that, when a general contractor hires a subcontractor to provide plans and specifications, the gen eral contractor causes the plans an d specifications to be m ade and, as a result, cannot invoke im m unity under § 9:2771. 121 J eanes argues McBride caused the plans an d specifications to be m ade. 122 She cites McBride’s deposition testim ony that he “purchased the Building from S & S.”123 S & S proposals for the Building list McBride as the custom er and were signed by McBride, 124 and other S & S docum ents identify McBride as the custom er. 125 McBride responds that, because J ean es adm its she m et with S & S to discuss the design of the Building and approved the designs, McBride did not cause the designs to be made. 126 He also cites the testim ony of his proposed expert Philip Beard regarding responsibility for design defects. 127 The Court finds no genuine issue of m aterial fact as to whether McBride caused the plans and specifications for the roof and other portions of the Building to be m ade. 121 See, e.g., Hagem an v. Forem an, 539 So. 2d 678 , 682 (La. Ct. App. 1989) (holdin g § 9:2771 inapplicable when builder supplied plans drafted by a third party to own er); A & M Pest Control Serv., Inc. v. Fejta Const. Co., 338 So. 2d 946, 951 (La. Ct. App. 1976) (sam e). 122 R. Doc. 112 at 12– 15. 123 R. Doc. 112-2 at 27. 124 R. Doc. 112-4. The proposal lists “Metal Buildings by Mac” as the custom er, but it is uncontested that, in 20 10 at 20 11, McBride con ducted business as “Metal Buildin gs by Mac.” R. Doc. 174 at 9, ¶ 7(3). 125 R. Docs. 112-5, 112-6. 126 R. Doc. 127 at 9– 10 . 127 R. Doc. 127-3. 22 McBride testified he purchased the Building from S & S, an d the plans and specifications drafted by S & S show McBride was the custom er. Even though J eanes m et with S & S to discuss the designs and approved the designs, there is no genuine factual issue that McBride caused to be m ade the plans for the roof and the parts of the Building other than the foundation. The Court has found McBride m ade or caused to be m ade the plans and specifications for the Building. As a result, J eanes is entitled to partial sum m ary judgm ent on McBride’s § 9:2771 im m unity defense. 128 V. Th e Co u rt gran ts Plain tiff’s m o tio n in lim in e re la tin g to co n tracto r im m u n ity u n d e r LA. R EV . S TAT. § 9 :2 771. In her m otion in lim ine, J eanes seeks an order prohibiting McBride from introducing evidence or testim ony that he is not liable for defects because of the affirm ative defense in § 9:2771. 129 Because the Court finds McBride is not entitled to the im m unity defense in § 9:2771, the Court will not perm it McBride to introduce evidence related to the defense. The Court grants J ean es’ m otion in lim ine. VI. Ge n u in e is s u e s o f m ate rial fa ct p re clu d e s u m m ary ju d gm e n t o n p re s crip tio n o f Je an e s ’ LU TPA claim a n d o n th e m e rits o f th e claim . A. LU TPA claim s are s u bje ct to libe rative p re s crip tio n McBride argues J ean es’ LUTPA claim again st him has prescribed. 130 The Court first addresses whether LUTPA actions are subject to prescription or perem ption. 128 J eanes also argues McBride waived this defense by failing to raise it in his an swer. R. Doc. 112-1 at 10 – 12. Because the Court gran ts J eanes’ m otion for partial sum m ary judgm ent on the m erits of the defense, the Court does not address J eanes’ waiver argum ent. 129 R. Doc. 147. 130 R. Doc. 114-1 at 21– 23. 23 The events at issue in the m atter took place between 20 10 and 20 16, and this action was filed on Septem ber 6, 20 16. 131 The version of LUTPA in place during that tim e period provided that actions alleging unfair trade practices “shall be prescribed by one year running from the tim e of the transaction or act which gave rise to this right of action.”132 The statute did not specify whether the period was prescriptive or perem ptive. In its 20 0 2 decision in Tubos de Acero de Mexico, S.A. v. Am . Int’l Inv. Corp., the Fifth Circuit held the period is perem ptive. 133 In 20 0 8, the Louisiana Suprem e Court, in Miller v. Conagra, Inc., explicitly refrained from deciding whether the period is prescriptive or perem ptive. 134 In May 20 18, the Louisian a legislature am ended the statute to clarify violations are subject to “a liberative prescription” of one year. 135 The accom panying legislative history sheds no light on whether the legislature inten ded the am endm ent to be retroactive. 136 J eanes argues her LUTPA claim is subject to a one-year prescriptive period because the 20 18 am endm ent to LUTPA is interpretive and applies retroactively. 137 Article 6 of 131 R. Doc. 1. LA. R EV. STAT. § 51:140 9(E) (1972), am ended by Act 337 of the 20 18 Regular Legislative Session, 20 18 La. Acts 143, 143 (20 18). 133 292 F.3d 471, 481– 82 (5th Cir. 20 0 2) (citations om itted). 134 Miller v. Conagra, Inc., 20 0 8-0 0 21 (La. 9/ 8/ 0 8), 991 So. 2d 445, 456. 135 Act 337 of 20 18, 20 18 La. Acts at 143. 136 The digest accom panying the bill states: 132 [The bill p]rovides for a liberative prescription period with respect to private actions for violation s of the Unfair Trade Practices and Consum er Protection Law. ... Present law provides that an action to recover actual dam ages is prescribed by one year runnin g from the tim e of the transaction or act which gave rise to the right of action. Proposed law am ends present law to provide that such action to recover actual dam ages is subject to a liberative prescription of one year runn ing from the tim e of the transaction or act which gave rise to the right of action. LA. B. DIGEST, E NGROSSED, H. 20 18-759 Reg. Sess. (20 18). R. Doc. 141 at 34. 137 24 the Louisiana Civil Code provides, “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”138 The Fifth Circuit has explained that determ ining whether a law is procedural or substantive under article 6 requires the following “two-fold inquiry”: First, the court m ust ascertain whether in the enactm ent, the legislature expressed its intent regarding retroactive or prospective application. If the legislature did so, the judicial inquiry en ds. If the legislature did not, the court m ust then classify the enactm ent as substantive, procedural, or interpretive. Substantive laws ‘either establish new rules, rights, and duties or change existing ones.’ Procedural laws, in contrast, ‘describe the m ethod of enforcing, processing, adm in istering or determ ining rights, liabilities or status.’ Thus, if a statute ‘m erely prescribes the m ethod of enforcing a right which previously existed or m aintains redress for invasion of rights, it is classified as procedural.’ Interpretive laws ‘m erely establish the m eaning that the interpretive statute had from the tim e of its enactm ent.’139 “In Louisian a, statutes of lim itation are generally treated as procedural laws.”140 In this case, the legislative history of the 20 18 LUTPA am endm ent sheds no light on whether the am en dm ent was m eant to have retroactive effect. As a result, the Court follows the general principle that statutes regarding prescription and perem ption are procedural an d have retroactive effect. 141 The Court holding the 20 18 LUTPA am endm ent is interpretive and has retroactive effect. 138 LA. CIV. CODE art. 6. Holt v. State Farm Fire & Cas. Co., 627 F.3d 18 8, 192 (5th Cir. 20 10 ) (citing Cole v. Celotex Corp., 599 So.2d 10 58 (La. 1992) and quoting Prejean v. Dixie Lloy ds Ins. Co., 655 So.2d 30 3 (La. 1995)). 140 Id. (citing Chance v. Am . H onda Motor Co., 635 So.2d 177, 178 (La. 1994)). 141 The Court notes that LA. R EV. STAT. § 1:2 provides, “No Section of the Revised Statutes is retroactive unless it is expressly so stated.” The Fifth Circuit has explained this applies only to substantive, not procedural or interpretive legislation . See Holt, 627 F.3d at 192 n.3. 139 25 This holding is consistent with the holding of the Louisian a Third Circuit Court of Appeal in Congregation of Im m aculate Conception Rom an Catholic Church of Par. of Calcasieu v. Sam Istre Constr., Inc. 142 In that case, the court held the 20 18 am endm ent to LUTPA suggests “the legislature always intended the tim e period to be prescriptive” and that the am endm ent “m erely clarifies and interprets an existing law.”143 The court found that the am endm ent did not change the law, but rather clarified that LUTPA claim s have always been subject to liberative prescription, not perem ption. 144 This holding also is consistent with J udge deGravelles’ holdin g in Trinity Med. Servs., L.L.C. v. Merge Healthcare Sols., Inc. 145 B. Co n t r a n o n v a le n t e m J eanes argues that her LUTPA claim has not expired because of the doctrine of contra non valentem . 146 For claim s subject to prescription, “contra non valentem applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise [her] cause of action when it accrues.”147 In this case, J eanes brings her LUTPA claim on the basis that McBride fraudulently refused to schedule m andatory inspections, which is also a factual basis for her fraud 142 20 17-1186 (La. App. 3 Cir. 8/ 8 / 18), 253 So. 3d 196, 20 1. Id. at 20 1. 144 Id. at 20 1– 0 2 (citin g Ardoin v. Hartford Accident & Indem nity Co., 360 So.2d 1331, 1339 (La. 1978) (“[I]nterpretive legislation does not create new rules, but m erely establishes the m ean ing that the interpreted statute had from the tim e of its enactm en t. It is the original statute, not the interpretive on e, that establishes rights and duties.”)). 145 No. CV 17-592-J WD-EWD, 20 18 WL 3748399, at *9 (M.D. La. Aug. 7, 20 18). But see United States v. Cy togel Pharm a, LLC, No. CV 16-13987, 20 18 WL 5297753, at *12 (E.D. La. Oct. 25, 20 18). In Cy togel, this Court relied on CheckPoint Fluidic Sy s. Int'l, Ltd. v . Guccione, 8 88 F. Supp. 2d 78 0 , 792 (E.D. La. 20 12), for the proposition that the Court is “bound by the Fifth Circuit's holding that La. R.S. 51:140 9(E) is a perem ptive period, but it does not begin to run until a continuin g violation ceases.” 20 18 WL 5297753, at *12 n.170 . The Court did not analyze whether the statute was substantive, procedural, or interpretive, but instead found that, whether prescription or perem ption applied, there would be a “genuine issue of m aterial fact as to when the prescription or perem ption period began.” Id. 146 R. Doc. 141 at 34– 35. 147 Borel v. Young, 20 0 7-0 419 (La. 11/ 27/ 0 7), 989 So. 2d 42, 49, on reh'g (J uly 1, 20 0 8). 143 26 claim . 148 As with J eanes’ fraud claim , McBride alleges there are no genuine issues of m aterial fact with respect to J eanes’ LUTPA claim . As the Court found in connection with McBride’s m otion for sum m ary judgm ent on J eanes’ fraud claim against him , there are genuine issues of m aterial fact as to whether McBride concealed the defects that are the subject of J eanes’ LUTPA claim . The Court finds there is a genuine issue of material fact as to whether J eanes has good cause for not exercising her LUTPA cause of action within one year. As a result, the Court denies McBride’s m otion for sum m ary judgm ent on J eanes’ LUTPA claim s on prescription grounds. If the jury finds that the LUTPA claim is not perem pted under § 9:2772, the jury will also determ in e whether the claim has not prescribed un der the doctrine of contra non valentem . C. Mo tio n fo r Su m m ary Ju d gm e n t o n Me rits o f LU TPA Claim LUTPA m akes unlawful “[u]nfair m ethods of com petition an d unfair or deceptive acts or practices in the conduct of any trade or com m erce.”149 “A trade practice is unfair under the statute only when it offends established public policy an d is im m oral, unethical, oppressive or unscrupulous. What constitutes an unfair trade practice is determ ined by the courts on a case-by-case basis.”150 “The ‘defendant’s m otivation’ is a critical factor— his ‘actions m ust have been taken with the specific purpose of harm ing the com petition.’”151 The Court finds the disputed issues of m aterial fact that preclude sum m ary judgm ent on J eanes’ fraud claim against McBride also bar sum m ary judgm ent on the 148 R. Doc. 1 at 11, ¶ 41. LA. R EV. STAT. § 51:140 5(A). 150 Tubos, 292 F.3d at 480 (citations om itted). 151 IberiaBank, 90 7 F.3d at 839– 40 (quotin g id.). 149 27 LUTPA claim . As a result, the Court denies McBride’s m otion for sum m ary judgm ent on the LUTPA claim . CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion for partial sum m ary judgm ent, filed by Plaintiff J anet J eanes, be and hereby is GRAN TED . 152 Defendant Greg McBride is not entitled to the contractor im m unity defense in LA. R EV. STAT. § 9:2771. IT IS FU RTH ER ORD ERED that the m otion for sum m ary judgm ent, filed by Defendant Greg McBride, be and hereby is D EN IED . 153 IT IS FU RTH ER ORD ERED that J ean es’ m otion in lim ine to prevent McBride from introducing evidence or testim ony at trial that he is not liable for defects based on the contractor im m unity defense in § 9:2771 be and hereby is GRAN TED . 154 N e w Orle an s , Lo u is ian a, th is 4 th d ay o f Ju n e , 2 0 19 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT JU D GE 152 R. Doc. 112. R. Doc. 114. 154 R. Doc. 147. The jury will first determ ine whether McBride is liable for fraud. If the jury finds McBride liable for fraud, the five-year perem ptive period in § 9:2772(A) will not apply, and the jury will m ake findin gs with respect to the rem ain ing issues. If the ju ry does not find McBride liable for fraud, the fiveyear perem ptive period in § 9:2772(A) will apply. The jury will determ ine when J eanes occupied or took possession of the Buildin g. If the jury finds J eanes occupied or took possession of the Buildin g m ore than five years before this suit was filed, all of J eanes’ claim s will be perem pted. If the jury finds J eanes occupied or took possession of the Buildin g less than five years before this suit was filed, the claim s will not be perem pted, and the jury will m ake findings with respect to the rem ainin g issues. 153 28

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