PETTIGREW, J.
This suit was filed by homeowners Robert Peck, Jr. and Misty B. Peck against general contractor Richmar Construction, Inc. (Richmar) for alleged defects in the slab and foundation of their home under the New Home Warranty Act, La. R.S. 9:3141 et seq. Richmar filed a third party demand against two of its subcontractors, together with their respective insurers. The trial court granted a peremptory exception raising the objection of peremption, finding that the claims against the third party defendants are perempted pursuant to La. R.S. 9:2772. Richmar has appealed the grant of the peremptory exception and the trial court's dismissal of the third party claims. For the reasons that follow, we affirm.
In July 2006, Robert Peck, Jr. and Misty B. Peck (hereinafter collectively referred to as the Pecks) contracted with Richmar for the construction of their new home in Ascension Parish. Richmar completed the home on or about April 4, 2007, on which date a certificate of occupancy was issued for the Pecks' new home. Sometime thereafter, the Pecks noticed that the home's slab was allegedly uneven, causing damage to the foundation systems and footing, wall and partitions, flooring systems, columns, lintels, girders, beams, and roof. On April 3, 2012, the Pecks filed suit against Richmar under the New Home Warranty Act, alleging defects in the home's construction.
The trial court considered the matter at a hearing on February 22, 2013. After hearing arguments, the trial court opined that La R.S. 9:2772 establishes a clear five-year peremptive period, which tolled on April 4, 2012. Pursuant to La, C.C. art. 3461, the trial court noted that a peremptive period cannot be interrupted or suspended.
The timeline of relevant events as outlined herein is not in dispute. The doctrine of manifest error, therefore, does not apply to this court's review of the trial court's decision. Ristroph v. La. Pub. Facilities Auth., 2006-1669, p. 5 (La.App. 1 Cir. 9/14/06), 943 So.2d 492, 494. Rather, this case involves the legal question of whether the trial court erred in finding that La. C.C.P. art. 1067 does not apply to claims arising under La. R.S. 9:2772. Legal questions are reviewed utilizing the de novo standard of review. Cleco Evangeline, LLC v. La. Tax Comm'n, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353; Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. Accordingly, we will conduct a de novo review of the record to determine if the trial court was legally correct in granting the third party defendants' exception raising the objection of peremption.
This suit involves application of La. R.S. 9:2772 to claims arising under the New Home Warranty Act, La. R.S. 9:3141 et seq. At the time the underlying lawsuit and the third party demand were filed, La. R.S. 9:2772 provided, in pertinent part:
(Emphasis added.) Pursuant to Acts 2012, No. 762, § 1, effective August 1, 2012, the legislature has subsequently amended the statute. Act No. 762 added subparagraph (A)(1)(c), which now provides:
The amendment mirrors the language of La. C.C.P. art. 1067 and provides a ninety-day grace period for the filing of claims for indemnity or contribution.
Given the recent statutory amendment, the question that arises herein is whether the version of La. R.S. 9:2772 in effect prior to August 2012, should be read in conjunction with La. C.C.P. art. 1067. If not, the question then becomes whether a claim for contribution or indemnity can be perempted before the cause of action arises.
On appeal, Richmar argues that the trial court erred in refusing to apply La. C.C.P. art. 1067 to claims arising under La. R.S. 9:2772. Citing La. C.C. art. 13, Richmar asserts that both La. C.C.P. art. 1067 and La. R.S. 9:2772 deal with peremption and should be read in conjunction with each other.
In support of this argument, Richmar points out that La, R.S. 9:2772 was amended by Acts 2012, No. 762, § 1, effective August 1, 2012. Insofar as La. R.S. 9:2772(A)(1)(c) now incorporates the same grace period for the filing of incidental demands as contained in La. C.C.P. art. 1067, Richmar argues that it was always the intent: of the legislature for the two statutes to be read in conjunction with one another. The most recent amendment to La. R.S. 9:2772, Richmar submits, was merely a statement of clarification by the legislature.
Considering Richmar's arguments, we turn to the rules on statutory construction. The general rule is that a specific statute controls over a broader, more general statute. Burge v. State, 2010-2229, p, 5 (La.2/11/11), 54 So.3d 1110, 1113. It is a fundamental rule that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. State v. Campbell, 2003-3035, p. 8 (La.7/6/04), 877 So.2d 112, 118. Also, there is a presumption that those who enact statutory provisions act deliberately and with full knowledge of existing laws on the same subject, with knowledge of the effect of their act and a
Louisiana R.S. 9:2772 specifically provides a peremptive period for actions involving deficiencies in the survey, design, supervision, or construction of immovables or improvements thereon. Subparagraph (B)(3) expressly provides that the five-year peremptive period shall extend to "every demand, whether brought by direct action or for contribution or indemnity or by third-party practice." Louisiana C.C.P. art. 1067, by contrast, is a generalized statute intended to apply to incidental demands not otherwise specifically addressed under the Code of Civil Procedure or Louisiana Revised Statutes. There is no statement in La. R.S. 9:2772, as effective prior to August 1, 2012, that the legislature intended to incorporate the provisions of La. C.C.P. art. 1067.
Indeed, if La. C.C.P. art. 1067 already applied to claims brought under La. R.S. 9:2772, there would have been no need for the amendment of the statute to add subparagraph (A)(1)(c). A review of the legislative history of Act 2012, No. 762, negates Richmar's contention that the 2012 statutory enactment of La. R.S. 9:2772(A)(1)(c) was a mere remedial measure intended to clarify or interpret the existing law. The Resume Digest for Senate Bill 258, which was subsequently signed by the Governor and became Act 2012, No. 762, states, in relevant part, as fallows:
(Emphasis added.) Resume Digest, S.B. 258, 2012 Reg. Sess. (La. 2012). The stated intent of the amendment was to add an exception so as to allow a person sued within the peremptive period an extra ninety days to assert a third party demand against any other party. In that context, it is clear that the legislature set out to change the law so as to create a new exception to the five-year peremptive period under La. R.S, 9:2772.
Applying the well-established rules of statutory construction in this case involving claims for the defective construction of a home, we find that La. R.S. 9:2772 controls over the more generalized rule provided in La. C.C.P, art. 1067. We find no error in the trial court's determination that C.C.P. art. 1067 does not apply to the third party indemnity claims asserted by Richmar. Turning then to the statutory mandates of La. R.S. 9:2772, It is clear that the five-year peremptive period began to run on April 4, 2007, upon issuance of a certificate of occupancy to the Pecks. The Pecks filed suit against Richmar on April 3, 2012, one day before the peremptive period expired. Richmar did not, however, file its third party demand against Glynn Construction, Boudreaux Contractors, and their respective liability insurers until July 12, 2012, well after the lapse of the peremptive period. The question then becomes whether the timely filing of suit against Richmar had any effect on the toll of peremption as to the third party defendants
The Louisiana Supreme Court recently considered exactly this issue in the case of Ebinger v. Venus Constr. Corp., 2010-2516 (La.7/1/11), 65 So.3d 1279. In Ebinger, the homeowners contracted with Venus Construction Corporation in 1995, to build their new home. Construction was completed, and the plaintiffs moved into their residence in 1997, obtaining a certificate of occupancy on April 22, 1997. On October 9, 2003, the homeowners brought an action against Venus under the New Home Warranty Act, alleging that defects in the home's foundation had caused cracks in the drywall, tile, brick walls, and floor. On September 22, 2006, Venus filed a third party demand seeking indemnification from Post-Tension Slabs, the subcontractor that supplied the foundation. Post-Tension filed an exception of prescription based on La. R.S. 9:2772, which was granted by the trial court.
The Louisiana Supreme Court granted certiorari in Ebinger to review the correctness of the appellate court's decision. Upon review, the Court determined that the peremptive period commenced upon the issuance of a certificate of occupancy on April 22, 1997. Ebinger, 2010-2516 at 5, 65 So.3d at 1284. Applying the 2003 version of La. R.S. 9:2772, which adopted a five-year peremptive period, the Court then turned to the issue of whether Venus's right to indemnity vested before that amendment became effective. Venus argued that the right to indemnity against Post-Tension vested as soon as the alleged damage manifested itself and, therefore, that the 2003 amendment disturbed its vested indemnification right. The Court, however, rejected this argument. The Court distinguished between prescription and peremption, explaining that peremption is unique in two respects: (1) the expiration of the peremptive time period destroys the cause of action itself; and (2) nothing may interfere with the running of a peremptive time period. Ebinger, 2010-2516 at 9, 65 So.3d at 1286, citing Naghi v. Brener, 2008-2527 (La.6/26/09), 17 So.3d 919, 926. In addition, the Court noted the
Following the Louisiana Supreme Court's decision in Ebinger, we are left with a unique situation where a claim for indemnity may be perempted before the cause of action arises. This is the scenario we have in the case at hand. The parties ail agree that the five-year peremptive period began to run on April 4, 2007, upon the issuance of a certificate of occupancy. The Pecks filed suit against Richmar on April 3, 2012, one day before the peremptive period expired. Richmar did not file the third party demand against Glynn Construction, Boudreaux Contractors, and their various insurers until July 12, 2012, some three months after the peremptive period expired, We are mindful that Richmar could not have sought indemnity until it was served with suit on May 4, 2012, which occurred after the peremptive period had already lapsed. However, La. C.C. art. 3461 is clear that peremption may not be interrupted or suspended, and the net effect under Ebinger is that peremption tolls regardless of when a cause of action for indemnity arises. In light of Ebinger, we are constrained to hold that Richmar's third party demand was perempted.
In reaching this conclusion, we caution that our holding is limited to the narrow facts of this case and the timeline of relevant events herein, all of which transpired prior to the amendment of La. R.S. 9:2772, effective August 1, 2012. It appears that the legislature's addition of La. R.S. 9:2772(A)(1)(c) was intended to avoid the result reached in Ebinger in cases which arise in the future. Louisiana Revised Statute 9:2772(A)(1)(c) now affords a defendant a period of ninety days from service of process to file a claim for contribution or indemnity. However, the amended
For the reasons set forth above, we affirm the judgment of the trial court, which granted the third party defendants exception of peremption and dismissed Richmar Construction, Inc.'s third party demand against Glynn Construction, LLC, Navigators Specialty Insurance Company, American Empire Surplus Lines Insurance Company, Boudreaux Contractors, LLC, and Catlin Specialty Insurance Company with prejudice. Costs of this appeal are assessed against the appellant, Richmar Construction, Inc.
McCLENDON, J., dissents and assigns reasons.
McCLENDON, J., dissents with reasons.
I disagree with the majority's analysis regarding statutory construction and, specifically, the majority's failure to harmonize LSA-C.C.P. art. 1067 and LSA-R.S. 9:2772. See LSA-C.C. art. 13.
In applying the general rules of statutory construction, the meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter,
In this matter, LSA-R.S. 9:2772 provides a five-year peremptive period for claims arising out of the construction, design, or building of immovable property, and LSA-R.S. 9:2772B(3) provided that "[t]his peremptive period shall extend to every demand, whether brought by direct action or for contribution or indemnity or by third-party practice." This statute, however, must be read in conjunction with LSA-C.C.P. art. 1067, which provides:
Our supreme court has recognized Article 1067 as an exemption statute. Reggio v. E.T.I, 07-1433 (La.12/12/08), 15 So.3d 951, 956. Although Reggio involved the issue of prescription, Article 1067 specifically lists both prescription and peremption.
The fourth circuit has recognized the exemption of Article 1067 to claims arising under LSA-R.S. 9:2772 in Metairie III v. Poche' Const., Inc., 10-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, writ denied, 10-2436 (La.9/16/11), 69 So.3d 1138, and Klein v. Allen, 470 So.2d 224 (La.App. 4 Cir. 1985). In the Klein case, the court stated:
Klein, 470 So.2d at 226.
Similarly, in Metairie III, after finding the current five-year peremptive period in LSA-R.S. 9:2772 applicable, the court stated:
Metairie III, 49 So.3d at 454.
In the case sub judice, the certificate of occupancy was issued on April 4, 2007. The Pecks filed their lawsuit against Richmar Construction, Inc. on April 3, 2012, and Richmar was served with the petition on May 4, 2012. Therefore, Richmar's third-party demands, filed on July 9, 2012, within the 90-day period of Article 1067, were timely.
Accordingly, I disagree with the majority's conclusion that Article 1067 does not apply to the facts of this case.
Therefore, I respectfully dissent.