Supreme Court of Louisiana 

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #004

FROM: CLERK OF SUPREME COURT OF LOUISIANA 

The Opinions handed down on the 28th day of January, 2015, are as follows: 

BY GUIDRY, J.: 

2014-C -0969 

 C/W 

2014-C -0973 

CRESCENT PROPERTY PARTNERS, L.L.C. v. AMERICAN MANUFACTURERS 

MUTUAL INSURANCE COMPANY, BISON BUILDING MATERIALS OF TEXAS, 

INC., ET AL. C/W GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP v. 

CRESCENT PROPERTY PARTNERS, LLC, BISON BUILDING MATERIALS OF 

TEXAS, INC., ET AL. C/W BISON BUILDING MATERIALS OF TEXAS, 

INC., BISTROL FIBERLITE INDUSTRIES, INC., CHAMPION WINDOW, INC., 

ET AL. v. GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP. (Parish of 

Orleans) 

Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for 

Justice Jeffrey P. Victory for oral argument. He now sits as an 

elected Justice at the time this opinion is rendered. 

For the reasons set forth above, we find the court of appeal 

erred in reversing the district court’s judgment confirming the 

arbitration panel’s award. Crescent has failed to carry its 

burden of proving the existence of any of the statutory bases set 

forth in La. Rev. Stat. 9:4210 mandating vacatur of the 

arbitration panel’s decision. Accordingly, the court of appeal’s 

judgment is reversed, and the district court’s judgment 

confirming the arbitration panel’s award is reinstated. 

REVERSED. 

JOHNSON, C.J., concurs and assigns reasons.
 1

01/28/2015 

SUPREME COURT OF LOUISIANA 

NO. 2014-C-0969 

CONSOLIDATED WITH 

NO. 2014-C-0973 

CRESCENT PROPERTY PARTNERS, LLC 

VERSUS 

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, 

BISON BUILDING MATERIALS OF TEXAS, INC., ET AL. 

CONSOLIDATED WITH 

GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP 

VERSUS 

CRESCENT PROPERTY PARTNERS, LLC, 

BISON BUILDING MATERIALS OF TEXAS, INC., ET AL. 

CONSOLIDATED WITH 

BISON BUILDING MATERIALS OF TEXAS, INC., BISTROL FIBERLITE 

INDUSTRIES, INC., CHAMPION WINDOW, INC., ET AL. 

VERSUS 

GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, 

FOURTH CIRCUIT, PARISH OF ORLEANS 

GUIDRY, Justice*

 We granted writs in these consolidated matters to consider whether the court 

of appeal correctly vacated the arbitration award, which had been confirmed by the 

district court. The court of appeal vacated the award on the basis the arbitration 

panel, in applying a statute of peremption incorrectly, disturbed a vested right of the 

plaintiff and, thus, the panel violated the plaintiff’s due process rights. The court of 

 

*

 Judge Scott J. Crichton, assigned as Justice ad hoc, sitting for Victory, J., for oral argument. He 

sits as an elected Justice at the time this opinion is rendered. 
 2

appeal found the arbitration panel’s interpretation of the law placed an impossible 

burden on the plaintiff, a burden the panel deemed fundamentally unfair, thereby 

requiring vacatur of the arbitration panel’s award. For the following reasons, we 

find the court of appeal essentially misinterpreted the laws concerning arbitration, 

and, thus, erred in failing to limit its review to the factors mandating vacatur 

articulated in La. Rev. Stat. 9:4210. In reversing the court of appeal’s decision, we 

reiterate well-settled law that otherwise fairly and honestly obtained arbitration 

awards may not be overturned merely for errors of fact or law. 

FACTS AND PROCEDURAL HISTORY 

 A property owner, Crescent City Property Partners, L.L.C. (hereinafter 

“Crescent”), and a builder, Greystar Development and Construction, LP (hereinafter 

“Greystar”), entered into a contract in March of 2002 for the construction of a 

mixed-use development in Lafayette, Louisiana. This development was completed 

in phases and consisted of multiple structures. A Certificate of Occupancy issued 

upon the completion of each of the five buildings, with the first issuing on February 

28, 2003, and the last issuing on July 24, 2003. A Certificate of Substantial 

Completion was executed on July 31, 2003, but was not recorded into the mortgage 

records in Lafayette Parish. 

 Alleging defects in the builder’s performance, and pursuant to the arbitration 

clause in the construction contract, Crescent filed an arbitration claim against 

Greystar on July 28, 2008, also naming as a defendant Greystar’s surety, American 

Manufacturers Mutual Insurance Company. In response, Greystar filed a third 

party demand against various subcontractors, including SLI Framing, Inc., 

Champion Windows, Floorcrete Enterprises, Southern Stucco, Inc., Delta 

Construction, Bison Building Materials of Texas, Inc., Nationwide Gutter, Inc., and 

Panel Truss of Texas (Longview), Inc. (hereinafter “the subcontractors” and the 
 3

applicants in No. 2014-C-0973). 

 At the time the last Certificate of Occupancy and the Certificate of Substantial 

Completion issued in July 2003, La. Rev. Stat. 9:2772 provided for a seven-year 

period of peremption for construction claims. However, on August 15, 2003, the 

legislature amended La. Rev. Stat. 9:2772 to provide for a peremptive period of five 

years rather than seven years.1

 On July 11, 2011, shortly before the matter was to 

be arbitrated, this court handed down Ebinger v. Venus Construction Corp., 10-2516 

(La. 7/1/11), 65 So.3d 1279, discussing the retroactivity of the 2003 amendment to 

La. Rev. Stat. 9:2772. 

 Relying on language in Ebinger, Greystar, the builder, and its subcontractors 

filed separate motions for summary judgment with the arbitration panel respectively 

alleging that Crescent’s claims, as well as Greystar’s third party claims, were 

perempted because they were not filed within five years of the issuance of the 

Certificate of Occupancy. Meanwhile, in response to Ebinger, Greystar had filed 

 

1

 La. Rev. Stat. 9:2772, as amended by Acts 2003, No. 919, § 1, eff. August 15, 2003, is entitled 

“Peremptive period for actions involving deficiencies in surveying, design, supervision, or 

construction of immovables or improvements thereon,” and provided in pertinent part: 

A. No action, whether ex contractu, ex delicto, or otherwise, including but not 

limited to an action for failure to warn, to recover on a contract, or to recover 

damages, or otherwise arising out of an engagement of planning, construction, 

design, or building immovable or movable property which may include, without 

limitation, consultation, planning, designs, drawings, specification, investigation, 

evaluation, measuring, or administration related to any building, construction, 

demolition, or work, shall be brought against any person performing or furnishing 

land surveying services, as such term is defined in R.S. 37:682, including but not 

limited to those services preparatory to construction, or against any person 

performing or furnishing the design, planning, supervision, inspection, or 

observation of construction or the construction of immovables, or improvement to 

immovable property, including but not limited to a residential building contractor 

as defined in R.S. 37:2150.1(9): 

(1)(a) More than five years after the date of registry in the mortgage office of 

acceptance of the work by owner. 

(b) If no such acceptance is recorded within six months from the date the owner has 

occupied or taken possession of the improvement, in whole or in part, more than 

five years after the improvement has been thus occupied by the owner. 

 
 4

an action in the district court seeking to have that court decide the effect of Ebinger

on the issue of peremption. Crescent objected, arguing the arbitration panel was 

“the only entity that may rule on the peremption issue because the issue requires a 

decision on the merits of the claims in arbitration.” The district court granted 

Crescent’s exceptions of lack of subject matter jurisdiction, dismissed Greystar’s 

action, and returned the case to the arbitration panel. 

 The arbitration panel thereafter established a briefing schedule, conducted a 

hearing on October 7, 2011, and issued its ruling on November 7, 2011. Finding 

that Ebinger dictated the retroactive application of the 2003 amendment to La. Rev. 

Stat. 9:2772 to Crescent’s claims against Greystar, the panel concluded Crescent’s 

claims were untimely asserted outside the five-year period and thus were perempted. 

The panel also found that Greystar’s third party claims were perempted under La. 

Rev. Stat. 9:2772 as interpreted by Ebinger. The panel dismissed all of the claims. 

 Crescent applied for an order to vacate the arbitration decision in the district 

court under La. Rev. Stat. 9:4210, naming Greystar, its surety American 

Manufacturers, and the subcontractors. Greystar and the subcontractors applied for 

orders confirming the arbitration award under La. Rev. Stat. 9:4209. The actions 

were consolidated. After briefing and oral argument, the district court denied 

Crescent’s application to vacate the award and granted Greystar’s and the 

subcontractors’ applications for an order to confirm the arbitration award. The 

district court then decreed the November 7, 2011 order of the arbitration panel be 

made the judgment of the district court.2

 

 Crescent sought review in the court of appeal, which reversed the district 

court’s judgment. Crescent Property Partners, LLC v. American Mfrs. Mutual Ins. 

 

2 Greystar’s surety, American Manufacturers, in 2012 had entered rehabilitation in the Circuit 

Court of Cook County, Illinois, which court had stayed and enjoined any actions against the surety 

not brought within the rehabilitation proceeding. The district court granted the surety’s motion to 

recognize foreign judgment and dismiss or stay the claims against it. The district court also 

denied as moot the subcontractors’ exception of no cause of action. 
 5

Co., 13-0661, 13-0662, 13-0663 (La. App. 4 Cir. 2/28/14), 134 So.3d 85. The court 

of appeal acknowledged that La. Rev. Stat. 9:4210 provided the exclusive grounds 

for challenging an arbitration award, but noted the factors therein were broad in 

scope and provided sufficient leeway to correct fundamental due process violations. 

134 So.3d at 89 (citing Pittman Construction Co., Inc. v. Charles Pittman, 96-1498, 

96-1079 (La. App. 4 Cir. 3/12/97), 691 So.2d 268). The court of appeal found the 

arbitration panel had incorrectly concluded the 2003 amendment reducing the time 

limitation of seven years to five years could be retroactively applied to perempt 

Crescent’s claims. The court of appeal found Ebinger, relied upon by the 

arbitration panel, not to be controlling. The appellate court reasoned the panel had 

violated Crescent’s due process rights when it retroactively applied the five-year 

peremptive period to its cause of action, which had vested before the 2003 

amendment became effective. Thus, the appellate court concluded the trial court 

had erred in confirming the arbitration panel’s award. The court then reversed the 

trial court’s judgment, vacated the arbitration award, and dismissed the 

subcontractor’s motion to dismiss the appeal as moot. 

 We granted the writ applications of Greystar and the subcontractors to 

determine whether the court of appeal properly applied La. Rev. Stat. 9:4210 to 

upset the arbitration panel’s award. Crescent Property Partners, LLC v. American 

Mfrs. Mutual Ins. Co., 14-0969, 14-0973 (La. 9/19/14), ___ So.3d ___. 

APPLICABLE LAW 

 Under the Louisiana Arbitration Law, La. Rev. Stat. 9:4201 et seq., a party to 

an arbitration proceeding may, within one year after the award is made, apply to the 

district court for confirmation of the award, and the court must confirm the award 

unless the award is vacated, modified, or corrected. La. Rev. Stat. 9:4209. The 

exclusive grounds for vacating an award are set out in La. Rev. Stat. 9:4210, which 
 6

states: 

In any of the following cases the court in and for the parish wherein the 

award was made shall issue an order vacating the award upon the 

application of any party to the arbitration. 

 A. Where the award was procured by corruption, fraud, or undue 

means. 

 B. Where there was evident partiality or corruption on the part of 

the arbitrators or any of them. 

 C. Where the arbitrators were guilty of misconduct in refusing to 

postpone the hearing, upon sufficient cause shown, or in refusing to 

hear evidence pertinent and material to the controversy, or of any other 

misbehavior by which the rights of any party have been prejudiced. 

 D. Where the arbitrators exceeded their powers or so imperfectly 

executed them that a mutual, final, and definite award upon the subject 

matter submitted was not made. 

 Arbitration is a mode of resolving differences through the investigation and 

determination by one or more individuals appointed for that purpose. The object of 

arbitration is the speedy disposition of differences through informal procedures 

without resort to court action. Firmin v. Garber, 353 So.2d 975, 977 (La. 1977). 

Because of the strong public policy favoring arbitration, arbitration awards are 

presumed to be valid. Judges are not entitled to substitute their judgment for that of 

the arbitrators chosen by the parties. National Tea Co. v. Richmond, 548 So.2d 930, 

932-33 (La. 1989). It is well-settled in both state and federal courts that an award 

may be challenged only on the grounds specified in the applicable arbitration 

statutes, here La. Rev. Stats. 9:4210 and 9:4211. Firmin, 353 So.2d at 977.3

 

 

3 The parties discuss to some extent an additional basis for vacating an arbitration award, the 

“manifest disregard of the law” ground, which has been described as non-statutory and 

judicially-created. See, e.g., Webb v. Massiha, 08-226 (La. App. 5 9/30/08), 993 So.2d 345; see 

also Colchoneria Jiron, S.A. v. Blumenthal Print Works, Inc., 629 So.2d 1288, 1290 (La. App. 4 

Cir. 1993), writ denied, 94-0145 (La. 3/11/94), 634 So.2d 391. “Manifest disregard of the law” 

refers to an error by the arbitration panel that is obvious and capable of being readily and instantly 

perceived by an average person qualified to serve as an arbitrator. Webb, p. 4 n. 3, 993 So.2d at 347 

n. 3. The jurisprudential rule implies the arbitrator appreciates the existence of a clearly governing 

legal principle but decides to ignore or pay no attention to it. Id.

 This court has not adopted such a ground, and at least one circuit has declined to do so. 
 7

Those grounds do not include errors of law or fact, which we have reiterated are 

insufficient to invalidate an award fairly and honestly made. St. Tammany Manor, 

Inc. v. Spartan Building Corp., 509 So.2d 424, 427 (La. 1987). A court does not 

ordinarily sit in an appellate capacity over an arbitration panel, but instead must 

confine its determination to whether there exists one or more of the specific grounds 

for invalidation as provided by the applicable statute, here, La. Rev. Stat. 9:4210. 

Woodrow Wilson Const. Co., Inc. v. MMR-Radon Constructors, Inc., 96-0618 (La. 

App. 1 Cir. 12/20/96), 684 So.2d 1125, 1127, writ denied, 97-0152 (La. 3/7/97), 689 

So.2d 1379. The burden of proof rests upon the party attacking the award. Hill v. 

Cloud, 26,391 (La. App. 2 Cir. 1/25/95), 648 So.2d 1383, 1388, writ dismissed, 

95-0486 (La. 3/17/95), 651 So.2d 260. As we explained in National Tea Co., 548 

So.2d at 933: 

Arbitration is a substitute for litigation. The purpose of arbitration is 

settlement of differences in a fast, inexpensive manner before a tribunal 

chosen by the parties. That purpose is thwarted when parties seek 

judicial review of an arbitration award. 

DISCUSSION 

 The arbitration panel and the court of appeal have differently interpreted our 

decision in Ebinger, regarding the retroactive application of the 2003 amendment to 

La. Rev. Stat. 9:2772. Accordingly, we commence our analysis with a summary of 

the Ebinger case and its reasoning. 

 

See JK Developments, L.L.C. v. Amtek of Louisiana, Inc., 07-1825 (La. App. 1 Cir. 3/26/08), 985 

So.2d 199. Furthermore, its viability as a separate, common-law basis for upsetting an arbitration 

award has been called into question by Hall Street Associates, L.L.C. v. Mattel, Inc., 128 S.Ct. 

1396, 170 L.Ed.2d 254 (2008). See Citigroup Global Markets, Inc. v. Bacon, 562 F.3d. 349 (5th

Cir. 2009) (holding that “manifest disregard of the law” after Hall Street is no longer an 

independent ground for vacatur of an arbitration award under the Federal Arbitration Act; 

however, if the arbitrator is fully aware of the controlling principle of law and does not apply it, 

instead of merely erroneously applying the principle, his conduct may exceed his powers and thus 

constitute one of the circumstances under which an award may be vacated, modified, or corrected). 

 The court of appeal in this case did not cite “manifest disregard of the law” as the basis for 

vacating the arbitration award, nor did it discuss such a ground, and Crescent argues that, whatever 

standard is applied, the basic facts and analysis are the same under the applicable statutory 

grounds. Accordingly, we decline to address the applicability of this non-statutory ground. 
 8

 The peremptive period prescribed by La. Rev. Stat. 9:2772 has been shortened 

twice, by amendments in 1999 and 2003. Acts 1999, No. 1024, § 1 substituted 

“seven” for “ten” years in subsection (A)(1)(a), while Acts 2003, No. 919, § 1 

substituted “five” for “seven” years in that subsection. In Ebinger, the builder 

sought indemnification from a subcontractor for the construction defect claims 

asserted by the homeowners. The certificate of occupancy was recorded in 1997, 

and the homeowners filed suit in October 2003. The builder filed its third-party 

claim in September 2006, to which the subcontractor excepted on the basis the 

indemnity claim was perempted under the 2003 amendment to La. Rev. Stat. 9:2772. 

The court of appeal had found the ten-year period of peremption applied, because 

the certificate of occupancy was executed when the ten-year period was in effect and 

because the builder had acquired a vested right against the subcontractor at that time. 

 The Ebinger court reversed, first noting the 2003 amendment, unlike the 1999 

amendment, did not provide for prospective application only. Therefore, the court 

reasoned, it could be applied retroactively so long as it did not disturb vested rights. 

The court explained: 

The Louisiana Revised Statutes are not applied retroactively “unless it 

is expressly so stated.” La. R.S. 1:2. However, the Louisiana Civil 

Code makes clear that this rule of statutory construction applies to 

substantive laws only. In the absence of contrary legislative 

expression, procedural and interpretive laws apply both prospectively 

and retroactively. La. C.C. art. 6. “[S]tatutes of limitation [the 

common-law analog to statutes of peremption or prescription] are 

remedial in nature and as such are generally accorded retroactive 

application.” Lott v. Haley, 370 So.2d 521, 523 (La. 1979). La. R.S. 

9:2772 [as amended in 2003] does not expressly state that it may be 

applied retroactively. However, it is a procedural law, establishing a 

period after which a plaintiff may no longer assert a claim. Subject to 

the caveat that it may not operate to disturb a vested right, § 2772 may 

be applied retroactively. 

 Despite the trial court and court of appeal's rulings in this case, 

we do not find it necessary to accord the statute retroactive application. 

The 2003 amendment became effective August 15, 2003, 

approximately two months before the Ebingers filed suit against Venus. 

Therefore, its application in this matter is not necessarily retroactive. 
 9

Although the applicable peremptive period commenced in 1997, before 

the amendment took effect and before the suit was filed, this antecedent 

does not in itself require retroactivity. “[A]pplying a legislative act to 

conduct antedating the statute's enactment or upsetting a party’s 

expectations based upon prior law does not mean the statute is 

impermissibly ‘operating retroactively.’” Elevating Boats, Inc. v. St. 

Bernard Parish, 00-3518 (La. 9/5/01), 795 So.2d 1153, 1163. 

 As Marcel Planiol explained, a law is retroactive “when it goes 

back to the past either to evaluate the conditions of the legality of an 

act, or to modify or suppress the effects of a right already acquired. 

Outside of those conditions, there is no retroactivity.” Id. (quoting 1 

Marcel Planiol, Treatise on the Civil Law, § 243 (La. State Law Inst. 

Trans.1959) (12th ed.1939)). In the instant matter, § 2772 “goes back 

to the past” not to evaluate the legality of an act but to begin the 

peremptive stopwatch. Therefore, it is retroactive only if it affects a 

right already acquired, i.e. vested. 

10-2516, pp. 7-8, 65 So.3d at 1285. 

 The Ebinger court went on to find that the builder’s indemnification claim 

was only conditional when the homeowners observed cracks in their slab and their 

suit was filed, and absent a judgment against the builder, that cause of action had not 

accrued, and thus the right was not vested, at the time the 2003 amendment came 

into effect. The Ebinger court found the 2003 amendment shortening the 

peremptive period thus did not disturb a vested right of the builder. Because the 

peremptive period commenced in 1997 when the certificate of occupancy was 

recorded, and the five-year period of peremption applied, the Ebinger court 

concluded the builder’s indemnity claim filed in 2006 had been perempted in 2002. 

 The arbitration panel cited the reasoning in Ebinger that La. Rev. Stat. 9:2772, 

as amended in 2003, a peremptive statute which did not specify a grace period, could 

be applied retroactively so long as it did not disturb a vested right. The panel 

acknowledged that up until Ebinger, “it had been assumed by some courts that a 

peremptive statute which shortened the time periods for filing suit could not be 

applied retroactively unless it provided in the statute itself a specific grace period.” 
 10

The panel then distinguished Maltby v. Gauthier, 506 So.2d 1190 (La. 1987), and 

Lott v. Haley, 370 So.2d 521 (La. 1979), which held the medical malpractice statute 

of limitations could not be applied retroactively, on the basis that in those cases, 

according to the panel, the statute had immediately extinguished vested causes of 

action as of the effective date of the statute. Here, the panel reasoned, when the 

amended statute became effective on August 15, 2003, Crescent was not divested of 

its cause of action against the builder -- a cause of action that had accrued as early as 

October 2002 but no later than July 24, 2003 -- because it still possessed that cause 

of action and had almost another five years from the effective date of the legislation 

in which to exercise that right. The panel cited the reasoning in Ramirez v. St. Paul 

Fire & Marine Ins. Co., 433 So.2d 219 (La. App. 3rd Cir. 1983), and Saucier v. Drs. 

Houston, Roy, Faust & Erwin, 446 So.2d 877 (La. App. 4th Cir. 1984), for the 

proposition that retroactive application of a time limitation did not 

unconstitutionally divest a plaintiff of a vested right when, after the legislation came 

into effect, there remained a reasonable period of time in which the plaintiff could 

have nonetheless brought his action. The panel then quoted language in Ebinger

suggesting to the panel, at least, that a statute shortening a period of peremption 

could be permissible even absent a specified period of time in which to assert the 

cause of action, so long as there was a reasonable period of time in which the 

plaintiff could have exercised his right.4

 The panel reasoned: 

 

4 The court of appeal in Ebinger held the 2003 amendment did not apply to perempt the builder’s 

indemnity claim against the subcontractor. The appellate court had noted: 

Furthermore, this case falls outside of the general concept that a law modifying the 

duration of prescription will be inapplicable in cases where prescription has 

accrued, but may be applicable to those which are running. See Elevating Boats, 

Inc. v. St. Bernard Parish, 00-3518 (La. 9/5/01), 795 So.2d 1153. This 

jurisprudence is inapplicable in cases in which a statute shortens a prescriptive 

period, as here. Id. at 1163, n. 12. Instead, the supreme court has remarked that 

"[p]rinciples of fairness and equity combined with constitutional considerations 

have led us to find that statutes shortening a prescriptive period may be 

impermissible absent a transitional period sufficient to permit a claimant to seek 

judicial enforcement of a claim otherwise adversely affected by the new 

prescriptive period." Id.
 11

 Therefore, reading all of these cases, along with Ebinger, the 

Supreme Court has clearly said that the Louisiana and United States 

Constitution[s] preclude the retroactive application of any statute 

which would cut off a vested cause of action. However, if the statute 

does nothing but shorten the time limits, it is constitutionally 

permissible. In light of Ebinger’s clear statement that the limitation as 

set forth [in] Maltby and Lott did not apply to peremptive statutes, and 

could be permissible, the Ebinger case clearly dictates that in a 

situation like this, where Crescent had almost five years to sue from the 

effective date of the amendment of the statute, no rights were divested, 

and there is no constitutional prohibition against applying the statute 

retroactively. 

 The court of appeal ultimately disagreed with the reasoning of the arbitration 

panel. After acknowledging that an arbitration award can be challenged only on the 

statutory grounds as set forth in La. Rev. Stat. 9:4210, the court of appeal noted that 

the reviewing court’s function is to determine whether the arbitration proceedings 

have been fundamentally fair. 134 So.3d at 89 (citing Southern Tire v. Virtual 

Point Development, 00-2301 (La. App. 4 Cir. 9/26/01), 798 So.2d 303). Although 

it further acknowledged that arbitration awards could not be overturned for errors of 

fact or law, the court of appeal noted that due process violations may require a 

 

 

Ebinger v. Venus Const. Corp., 10-194, pp. 7-8 (La. App. 3 Cir. 10/6/10), 48 So.3d 375, 380 

(“Ebinger II”). 

 This court, in reviewing the lower court’s reasoning in Ebinger II, had stated: 

The Third Circuit also relied on our holding that "statutes shortening a prescriptive 

period may be impermissible absent a transitional period sufficient to permit a 

claimant to seek judicial enforcement of a claim otherwise adversely affected by 

the new prescriptive period." Ebinger II, 48 So.3d 375, 380 (quoting Elevating 

Boats, supra, 795 So.2d at 1163, n. 12) (emphasis in original). The court of 

appeal's reliance on this dictum is misplaced for several reasons. First, the 

statement applies to statutes that shorten prescriptive periods, not peremptive 

periods. Second, the statement is conditional, indicating that such statutes are not 

necessarily impermissible. Third, and most important, to conclude [the builder’s] 

claim was adversely affected by the new peremptive period is to mistakenly assume 

[the builder] could have sought judicial enforcement of that claim. If [the 

builder’s] cause of action for indemnity did not accrue before the 2003 amendment, 

as we discussed earlier, its claim did not yet exist. A non-existent claim cannot be 

adversely affected by a change in the law. 

Ebinger, 10-2516 pp. 11-12, 65 So.3d at 1287. The arbitration panel quoted the 

underscored language in its ruling. 

 
 12

reviewing court to vacate the award. Id. (citing Johnson v. 1425 Dauphine, L.L.C., 

10 793 (La. App. 4 Cir. 12/1/10), 52 So.3d 962, 968 69, writ denied, 11-0001 (La. 

2/18/11), 57 So.3d 334; Hennecke v. Canepa, 96-772 (La. App. 4 Cir. 5/21/97), 700 

So.2d 521, 522, writ denied, 97-1686 (La. 10/3/97), 701 So.2d 210). The court of 

appeal noted: “‘An arbitrator should be constantly vigilant of basic due process 

requirements, the first and foremost of which is the opportunity to present evidence 

and to be heard.’” Id. (quoting Pittman Construction Co., Inc. v. Pittman, 96-1079 

(La. App. 4 Cir. 3/12/97), 691 So.2d 268, 274, writ denied, 97-0960 (La. 5/16/97), 

693 So.2d 803). The court of appeal opined the four grounds for vacatur in La. 

Rev. Stat. 9:4210 are broad in scope and provide sufficient leeway to correct 

fundamental due process violations. Id. (citing Pittman Construction, supra). 

 The court of appeal next turned to the panel’s interpretation of Ebinger as to 

the retroactive application of the 2003 amendment to La. Rev. Stat. 9:2772. The 

court of appeal cited Maltby and Lott for the proposition that courts must refrain 

from supplying a reasonable grace period where the legislature has not done so. 

Those cases, rather than Ebinger, controlled, the court of appeal found, because they 

were in effect at the time Crescent’s claims against Greystar accrued, and Ebinger

concerned only the builder’s indemnity claims against a subcontractor, claims which 

were not vested rights at the time of the 2003 amendment to La. Rev. Stat. 9:2772. 

To require Crescent to anticipate the application of Ebinger to its vested rights, and 

thus shortening the time limitation to exercise those rights from seven years to five 

years, the court of appeal reasoned, was fundamentally unfair. Because a 

reviewing court must insure the fundamental fairness of an arbitration proceeding, 

the court of appeal vacated the arbitration panel’s ruling, finding the arbitration 

panel, in applying the amendment retroactively, had violated Crescent’s due process 

rights. 
 13

 We find the court of appeal erred in vacating the arbitration panel’s award, as 

there exist no statutory grounds for doing so. We initially note there is no dispute 

that Crescent and Greystar had voluntarily consented to submit the peremption issue 

to the arbitration panel for its consideration. Indeed, Crescent had strenuously and 

successfully objected to Greystar’s attempt to have the district court, rather than the 

arbitration panel, decide the peremption issue and the effect of Ebinger on the 

retroactivity of the amendment to La. Rev. Stat. 9:2772. Thus, the peremption issue 

was clearly within the scope of the arbitration panel’s authority to decide. See 

AT&T Tech., Inc. v. Comm. Workers of America, 475 U.S. 643, 648-49 (1986) 

(“[A]rbitrators derive their authority to resolve disputes only because the parties 

have agreed in advance to submit such grievances to arbitration.”). 

 Assuming for the sake of argument the arbitration panel wrongly interpreted 

and applied Ebinger, and we take no position thereon, such an error of law does not 

permit vacatur of the arbitration panel’s award. There has been no showing by 

Crescent that the award was procured by corruption, fraud, or undue means. La. 

Rev. Stat. 9:4210(A). Nor has there been any showing of evidence of partiality or 

corruption on the part of the arbitrators. La. Rev. Stat. 9:4210(B). Crescent has 

not asserted that the arbitrators are guilty of misconduct in refusing to postpone the 

hearing or in refusing to hear evidence pertinent and material to the controversy. 

La. Rev. Stat. 9:4210(C). Indeed, the record clearly establishes the parties were 

allowed to brief the peremption issue thoroughly and to argue their positions before 

the panel. 

 Instead, Crescent asserts, the arbitrators are guilty of misbehavior by which 

the rights of a party have been prejudiced and the arbitrators exceeded their powers 

or so imperfectly executed them that a mutual, final and definite award upon the 

subject matter was not made. La. Rev. Stat. 9:4210(C) and (D). Crescent 
 14

contends the panel misrepresented the facts of this court’s controlling opinion in 

Maltby in order to manufacture a distinction and evade its holding. According to 

Crescent, the vested cause of action in the Maltby case was not immediately 

extinguished by the legislation as asserted by the arbitration panel in its written 

reasons, and thus does not support the panel’s reasoning. Further, although the 

panel accurately related the holding of Ebinger, Crescent argues, the panel went on 

to ignore that holding and to mischaracterize isolated dicta to extract a rule that is not 

even arguably present in Ebinger. According to Crescent, the arbitration panel 

“selectively and deceptively” quoted language from Ebinger, omitting statements 

that would have exposed its mischaracterization. All of these actions, Crescent 

contends, go beyond a simple “good faith” error of law, and instead reveal that, to 

avoid a hearing on the merits of the underlying construction claims, the arbitrators 

engaged in “misbehavior” and exceeded their legitimate powers by refusing to apply 

the law agreed to by the parties. In effect, Crescent asserts, the arbitrators 

impermissibly imposed their own policy choice as to the retroactivity of the 

legislative amendment. Further, Crescent asserts it was fundamentally unfair of the 

arbitration panel to apply Ebinger so as to overrule clear precedent when to do so 

would produce substantial inequitable results. Thus, Crescent argues, the court of 

appeal properly vacated the arbitration award because such wilful misbehavior 

resulted in the denial of its due process rights. 

 However, we discern no such wilful misbehavior on the part of the arbitration 

panel, as alleged by Crescent, nor did the panel’s alleged error amount to an 

imperfect execution of its authority that resulted in a denial of Crescent’s due 

process rights. At most, Crescent has alleged the panel made a plain error of law 

which resulted in its claims being improperly dismissed on grounds of peremption. 

The record contains no evidence whatsoever that the arbitrators wilfully misbehaved 
 15

or that they imperfectly executed their authority. Instead, the record shows the 

panel permitted the parties to brief the issue and to argue that issue before it. There 

was no denial of due process in that regard. Thereafter, the panel issued lengthy 

reasons setting forth the law it relied upon and its interpretation thereof. It is readily 

evident from those reasons that the panel assiduously considered all of the 

applicable law and jurisprudence on the issue of peremption and La. Rev. Stat. 

9:2772. The upshot of both the court of appeal’s reasoning and the arguments of 

Crescent is that the panel just got it wrong on the law. We reiterate our long line of 

jurisprudence that an error of fact or law will not invalidate an otherwise fair and 

honest arbitration award. See National Tea, supra. Other than allegations, 

Crescent has failed to establish any proof of dishonesty, bias, bad faith, wilful 

misconduct, or any conscious attempt of the panel to disregard Louisiana law. As 

we explained in Firmin v. Garber, supra, arbitrators are not guilty of misconduct 

merely because a different award could have been rendered. “To hold otherwise 

would defeat the purpose of arbitration: the speedy resolution of disputes outside the 

court system.” 353 So.2d at 977. 

DECREE 

 For the reasons set forth above, we find the court of appeal erred in reversing 

the district court’s judgment confirming the arbitration panel’s award. Crescent has 

failed to carry its burden of proving the existence of any of the statutory bases set 

forth in La. Rev. Stat. 9:4210 mandating vacatur of the arbitration panel’s decision. 

Accordingly, the court of appeal’s judgment is reversed, and the district court’s 

judgment confirming the arbitration panel’s award is reinstated. 

REVERSED
01/28/2015 

SUPREME COURT OF LOUISIANA 

NO. 2014-C-0969 

CONSOLIDATED WITH 

NO. 2014-C-0973 

CRESCENT PROPERTY PARTNERS, LLC 

VERSUS 

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, 

BISON BUILDING MATERIALS OF TEXAS, INC., ET AL. 

CONSOLIDATED WITH 

GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP 

VERSUS 

CRESCENT PROPERTY PARTNERS, LLC, 

BISON BUILDING MATERIALS OF TEXAS, INC., ET AL. 

CONSOLIDATED WITH 

BISON BUILDING MATERIALS OF TEXAS, INC., BISTROL FIBERLITE 

INDUSTRIES, INC., CHAMPION WINDOW, INC., ET AL. 

VERSUS 

GREYSTAR DEVELOPMENT AND CONSTRUCTION, LP. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, 

FOURTH CIRCUIT, PARISH OF ORLEANS

JOHNSON, Chief Justice, concurs and assigns reasons. 

 I reluctantly concur with the majority opinion. In my view, there is no 

question that the arbitration panel committed an error of law in concluding that the 

2003 amendment to La. R.S. 9:2772, reducing the period of peremption for 

construction claims from seven years to five years, could be retroactively applied 

to perempt Crescent’s claims. However, as recognized by the majority, such an 

error of law does not permit vacatur of the arbitration panel’s award. This court has 
long held that an arbitration award can only be challenged on the specific grounds 

set forth in the arbitration statutes.1

 And, these specific grounds do not include 

“good faith” errors of law. Thus, despite the error committed by the arbitration 

panel, I must agree with the majority’s conclusion that the court of appeal erred in 

reversing the district court’s judgment confirming the arbitration panel’s award. 

 

1

 See, e.g., Firmin v. Garber, 353 So. 2d 976 (La. 1977); National Tea Co. v. Richmond, 548 So. 

2d 930 (La. 1989).