STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2023 CA 0020

WHITNEY BANK VERSUS



### On Appeal from the Twenty - Second Judicial District Court In and for the Parish of Washington

State of Louisiana Docket No. 108044 

### Honorable AugustJ. Hand, Judge Presiding

ClayJustin LeGros Metairie, Louisiana Counsel for Plaintiff/Appellee Whitney Bank
Lillian M. Ratliff 

### Counsel for Defendant/Third-Party Plaintiff/ Bogalusa, Louisiana Appellant Henry Rayford
David Jefferson Dye 

### Counsel Third - Party Defendant/Appellee New Orleans, Louisiana Nobles Construction, L.L.C.McCLENDON, F J. The plaintiff appeals a trial court's judgment on his fraud claim raised in a third - 

### party demand against a third -party defendant construction company. After a bench trial, 

### the trial court found that the plaintiff failed to carry his burden of proof with regard to the fraud allegations. 

### Thereafter, the trial court sustained the third -party defendant's peremptory exceptions raising the objections of peremption and prescription and 

### dismissed with prejudice the third - party plaintiff's claims against the third - party defendant. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY This matter is before us forthe third time and arises from the construction of three 

### houses for Henry Rayford by Nobles Construction, L.L.C. ( Nobles).' Mr. Rayford intended to use the houses as rental properties. 

### Nobles completed construction in early 2008. Mr. Rayford alleges that because of construction defects, the houses could not be used for their intended purposes. Mr. Rayford defaulted on the promissory notes and Whitney 

### Bankfiled the underlying SUit.2 In 2016, Mr. Rayford asserted athird - party demand against Nobles. SeeWhitney Bank v. Rayford, 2017-1244 ( La.App. 1 Cir. 3/29/ 18), 247 So.3d 733, 735 (Whitney Bank 1); 

### Whitney Bank v. Rayford, 2021-0406 ( La.App. 1 Cir. 12/9/21), 332 So - 3d 

### 1243, 1245 (Whitney Bank II).Therein, he alleged that Nobles failed to obtain required 

### building permits and inspections during construction and that Nobles' actions or failures to act constituted fraud. 

### Mr. Rayford further alleged that Nobles failed to comply with 

### building standards, failed to complete thejob, and failed to rectify problems, resulting in a breach of contract. 

### Finally, Mr. Rayford alleged that Nobles performed defective work 

### or used defective materials, resulting in mold and mildew in the houses, rendering the 

### houses uninhabitable, and causing him irreparable financial, professional, and personal

I For a more complete recitation of the facts and procedural history, see Whitney Bank v. Rayford, 2017- 1244 ( La.App. 1 Cir. 3/29/ 18), 247 So.3d 733 (Whitney Bank 1) and Whitney Bankv. Rayford, 2021-0406 ( La.App. I Cir. 12/9/21), 332 So.3d 1243 (Whitney Bank II). 2 Whitney Bank's claims against Mr. Rayford were resolved by summaryjudgment and are not at issue in this latest appeal. 2harm. 

### See Whitney Bank 1, 247 SO^3dEt735; Whitney Bank 1K332 Sn.3Hat 1245-

TM response, Nobles filed peremptory exceptions raising the objections Of peremption and prescription. Nobles argued that Mr. Rayford's claims should be dismissed pursuant to 9: 2772, which provides 8 r peremptive period applicable to actions against contractors related to DOOStrUCtOO Of improvements OD immovable property. 3 Nobles asserted that Mr. Rayford's allegations of fraud, which VVOU& d have provided for an exception to the D2rem[ tkv8 period, were unsubstantiated
and be found inappinapplicable. B. argued that Mr. C] ai00S were prescribed pursuant to the OOe-V2B[ prescriptive period set forth in LSA-C.C. arts. 

### 3492 and 3493.5 After ahearing, the trial court sustained the exceptions, dismissed the third - party demand, and Mr. Rayford appealed. Whitney Bank 1 247 So3d at 735; 

### Whitney Bank H, 332 Sn.3M8t1246, 

### On appeal, this court reversed the trial COU[f" sjudgment sustaining the exceptions and remanded the matter for further proceedings, finding that Nobles failed to carry its 

### burden as it failed to introduce any evidence at the hearing to establish the dates on

s Louisiana Revised Statutes 9: 2772(A)( 1)( b) provides:

Except asotherwise provided inthis Subsection, no action, whether ex contractu ex delicto, or otherwise, including but not limited toanaction for failure towarn, torecover on a contract, or to recover damageor otherwise arising out of an engagement of planning, construction, design, or building immovable ormovable 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, assuch term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, oragainst any person performing orfurnishing the design, planning, supervision, inspection, or observation of construction orthe construction of immovables, or improvement to immovable property, including but not limited to residential building contractor as defined in R.S. 37:2150.1: 1)( a) More than five years after the date of registry in the mortgage office of acceptance ofthe work bvowner. b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession ofthe improvement, in whole or in part, more than five years after the improvement has been thus occupied bythe owner. Louisiana Revised Statute 9: 2772( H)( 1) provides, in pertinent part that "[ t]he peremptive period provided bythis Section shall not apply to an action to recoveron a contract orto recover damages against any person enumerated inSubsection Aofthis Section, whose fraud has caused the breach ofcontract or damages sued upon." s Louisiana Civil Code art. ] 492 provides, in relevant part, that "[d] elictua| actions are subject toaUberative prescription of one year." Additiona|ky, LSA-C.C. art. 3493 provides that"[ vv] han damage is caused to immovable property, the oneyear prescription commences to run from the daythe owner ofthe immovable acquired, orshould have acquired, knowledge ofthe darnage."which the peremptive or prescriptive periods commenced. The issue of whether Mr.

Rayford's allegations of fraud would exempt his claims from the peremptive period set forth in LSA-R.S. 9: 2772 was pretermitted. 

### Whitney Bank 1, 247 So.3d at 737-38. Further litigation ensued following remand, including Nobles again seeking 

### dismissal of Mr. Rayford's third - party demand by filing exceptions raising the objections of peremption and prescription. 

### At the hearing on these exceptions, Nobles introduced into evidence numerous exhibits. 

### Mr. Rayford did not offer any evidence, but opposed the exceptions by arguing, in part, that LSA-R.S. 9: 2772( H)( 2) requires a separate 

## hearing regarding the allegations offraud before the trial "of any or all other issues.'16 Following the parties' arguments, the trial court again granted the exceptions and dismissed Mr. Rayford's claims. 

### Noting Mr. Rayford's objection to the ruling, the trial 

### court stated that, if necessary, any issues regarding fraud or attorney fees would be handled at a future date. 

### The trial court signed a judgment on January 10, 2019, in 

### conformitywith its ruling and dismissed Mr. Rayford'sthird - party demand against Nobles
with prejudice. Mr. Rayford again appealed. 

### Whitney Bank 11, 332 So.3d at 1246-47. On December 9, 2021, this court held that the provisions of LSA-R.S. 9: 2772(H) 

### are clear and unambiguous and required that "Mr. Rayford's allegations offraud shall be tried, separate from and prior to the trial of any and all other matters." 

### Whitney Bank 11, 332 So.3d at 1251. Thus, this court determined that the trial court legally erred in 

### sustaining Nobles' exceptions while deferring the issue offraud. Accordingly, this court 

### vacated the January 10, 2019judgment and remanded the matter to the trial court. Id. 

### On April 8, 2022, the trial court held a trial on Mr. Rayford's allegations offraud in his third -party demand against Nobles. The parties stipulated to the introduction of all exhibits into evidence, and both parties presented witness testimony. Thereafter, the 

### trial court took the matter under advisement, and the parties submitted post - trial briefs. 

## On May 24, 2022, the trial court issued Reasons forJudgment, finding that Mr. Rayford failed to carry his burden of proving fraud in the construction project as alleged by Mr. Rayford in his third -

party demand against Nobles. Thereafter, the trial court determined

6 Louisiana Revised Statutes 9:2772(H)( 2) provides, in pertinent part, that "[i] n any action in which fraud is alleged, that issue shall be decided bytrial separate from and priortothe trial ofany orall other issues." M

### that the third -party demand of Mr. Rayford against Nobles regarding the construction of

the rental houses, filed eight years after Mr. Rayford took possession of the three rental houses and rented them out, was perempted pursuantto the five-year peremptive period set forth in LSA- R.S. 9:2772(A). 7 Asa result, the trial court sustained Nobles' peremptory exceptions raising the objections of peremption and prescription. The trial court signed 

### ajudgment in conformity with its ruling on May 24, 2022, and dismissed with prejudice Mr. Rayford's third -party claims against Nobles. 

### On February 2, 2023, the trial court 

### amendedthe May24, 2022judgmenttoclarifythatthejudgment isafinal and appealable judgment. Mr. Rayford now appeals, raising several assignments of error. 13 &* 6111:1-

3 On appeal, 

### Mr. Rayford argues that Nobles failed to obtain any permit for the construction project, failed to complete the necessary inspections in accordance with permit scheduling, failed to maintain insurance, and failed to finish the work in a workmanlike manner. 

### He asserts that Nobles' actions constituted fraud, committed by 

### using various forms of misrepresentation and suppressing the truth in order to gain an unjust advantage over him. 

### Therefore, according to Mr. Rayford, the fraud exception in LSA- R.S. 9: 2772 applies. Louisiana Revised Statutes 9: 2772(H)( 1) provides that the five-year peremptive period set forth in LSA-R.S. 9: 2772(A) " 

### shall not apply to an action to recover on a contract or to recover damages against any person ... whose fraud has caused the breach of contract or damages sued upon." Fraud, as used in LSA-R.S. 9: 2772 " shall have the 

### same meaning as provided in Civil Code Article 1953." LSA-R.S. 9: 2772(H)( 3). Fraud as defined in LSA-C.C. art. 1953 is a misrepresentation or a suppression of the truth made 

### with the intention either to obtain an unjust advantage for one party or to cause a loss
or inconvenience to the other. 

### Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art. 1957. 

### While fraud may result from silence or inaction, mere silence or inaction without fraudulent intent does not constitute fraud. 

### LSA-C.C. art. 1953; Schilling v. Bernhard
7 We note that Mr. Rayford has not assigned as error the trial court's decision to rule on the exceptions 

### raising theobjectionsofperemption and prescription atthesame hearing and immediatelyfollowing having ruled on the issue of fraud. Accordingly, we do not consider same. 5Brothers Mechanical Contractors LLC., 2012-2105 ( La.App. 1 Cir. 9/ 13/ 13), 186

So.3d 658, 665, writ denied, 2013-2378 (La. 12/6/ 13), 129 So.3d 537. Fraudulent intent, 

### orthe intent to deceive, is a necessary and inherent element offraud. Fraud cannot be predicated upon mistake or negligence, no matter how gross. Id. There are three basic elements to an action forfraud against a party to a contract: 1) a misrepresentation, suppression, or omission of true information; ( 2) the intent to 

### obtain an unjust advantage orto cause damage or inconvenience to another; and (3) the 

### error induced by a fraudulent act must relate to a circumstance substantially influencing the victim's consent to (a cause of) the contract. Minton v.Acosta, 2021- 1180 (La.App. 1 Cir. 6/3/ 22), 343 So.3d 721, 730-31. A trial court's determination of the existence or absence offraud is a question offact that will not be disturbed on appeal absent manifest

error. Id. Thus, appellate courts are required to review the entire record to ascertain whether manifest error has occurred. Where the standard of review is manifest error, the issue before an appellate court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. See Jones v. Market Basket Stores, Inc., 2022-00841 ( La. 3/ 17/23), 359 So.3d 452, 463. Where findings 

### are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trial court's findings offact. LeBlancv. Elam, 2022-0105 ( La.App. 1 Cir. 11/4/22), 355 So.3d 21, 27, writ denied, 2022-01714 ( La. 2/24/23), 356 So.3d 335. Indeed, where the factfinder's determination is based on its 

### decision to creditthetestimony ofone oftwo or more witnesses,thatfinding can virtually never be manifestly erroneous. Id. In its thorough written reasons, the trial court discussed the evidence offered and 

### testimony presented and made several findings offact. With regard to the permitting for 

### the construction project, the trial court found that the testimony established that Mr. 

### Rayford obtained a building permitfrom the Cityof Bogalusa on December28, 2006, and obtained an expansion and extension of his permit from James Hall, the former Public Works director for the City of Bogalusa. 

### The trial court specifically found that " the 

### expansion and extension of the permit was consistent with the manner in which
A

### permitting was handled by the City of Bogalusa in the years immediately after Hurricane

Katrina" and that "the three rental houses were built by Nobles underthe authority ofthe


### As to Mr. Rayford's claim that necessary inspections were not conducted on the construction project, the trial court found that "there was more than sufficient evidence to find that such inspections were performed." The trial court referred to Mr. Hall's 

### testimony that he was involved in the various inspections conducted on the houses that 

### Nobles built, including plumbing, building, and airconditioning inspections; thatthe bank that financed the project also conducted its own inspections on each phase ofthe project; that Mr. Hall conducted the final inspection on the three rental houses and found no 

### deficiencies in the construction; that the City inspected the construction throughout the project; and that the three houses were built in accordance with the applicable building
code. 

### Addressing Mr. Rayford's argument that Mr. Hall was not a certified building inspector, the trial court determined that Mr. Hall's employment and experience satisfied 

### the temporary exemption in effect at the time Mr. Hall inspected the three houses 

### completed by Nobles atthe end of February and early March of2008.8 Mr. Rayford also asserted that there was a lapse in insurance coverage by Nobles 

### during the time the three houses were being built, which failed to protect his interests. The trial court pointed out, however, that William McGehee, a commercial insurance 

### brokerwho had insured Nobles for approximately twenty years, testified that Nobles had no lapse in coverage for the time period at issue. 

### The trial court specifically found the 

### testimony of Mr. McGehee to be credible and determined that there was no lapse in insurance coverage for Nobles during the construction project. 

### Afterconsidering theexhibits and testimony presented attrial onthe issue offraud in the third -

party demand, the trial court concluded that Mr. Rayford failed to carry his burden of proving that Nobles made any misrepresentation or suppression of the truth with regard to the obtaining of the building permits, with regard to the conducting of
8 Mr. Hall testified that before Hurricane Katrina, the City of Bogalusa and the Parish ofWashington each had theirown separate permitting procedures; however, in July of 2008, an ordinance was passed creating an intergovernmental agreement where the parish handled the permitting process. Certification as a 

### building inspectorwas required, but the ordinance included an exemption regarding certification for prior inspections based on the experience of the inspector. N

### proper inspections, orwith regard to maintaining the proper insurance on the construction

project, which might have led to a breach of contract or damages. Additionally, the trial court found that Mr. Rayford failed to show that Nobles had the intention to obtain an unjust advantage over him or that Nobles intended for Mr. Rayford to suffer a loss or inconvenience. 

### To the contrary, the trial court found that Mr. Rayford and Nobles had a long-standing business relationship on multiple construction projects. Accordingly, the 

### trial court found no evidence offraud as alleged by Mr. Rayford.9 

### Considering ourown thorough review,we find thatthe trial court'sfactual findings as to the issue offraud are reasonably supported by the record. Mr. Hall, a twenty -five

### year employee of the City of Bogalusa, confirmed the validity and applicability of the building permit to Mr. Rayford's construction project. The evidence also showed that when construction on the project began, Nobles confirmed with Mr. Hall that the permit was extended and authorized the construction of the three houses. Further, Mr. Hall 

### testified all scheduled inspections took place, including the final one, at which time he found no deficiencies in the construction. Additionally, Mr. McGehee presented 

### uncontroverted testimonythat there was never a lapse in insurance coverage by Nobles during Mr. Rayford's construction project. Based on the evidence offered and testimony presented, Mr. Rayford failed to show that Nobles misrepresented or suppressed the truth with the intention to obtain an unjust advantage for Nobles or cause a loss or inconvenience to Mr. Rayford. Moreover, we will not disturb the findings of the trial court as the factfinder, who listened to the 

### testimony of the witnesses and has vast discretion in determining the weight and credibility of each witness. 

### Therefore, considering that a reasonable factual basis exists forthe trial court's determinations, we find no error in the trial court's conclusion that Mr. 

### Rayford failed to present sufficient evidence to establish that any actions or failures to 

### act by Nobles constituted fraud as alleged by Mr. Rayford. After finding that Mr. 

### Rayford failed in his burden of establishing the fraud exception set forth in LSA- R.S. 9: 2772(H)( 1), the trial court considered the peremptory

9 The trial court also stated that it had therefore satisfied the requirements of LSA-R.S. 9:2772(H)( 2), having held a separate trial on the issue offraud.

### exceptions raising the objections of peremption and prescription filed by Nobles, stating

that this court in Whitney Bank II remanded the determination ofthe objections back to the trial court. The trial court found that the construction of the three rental houses 

### by Nobles on behalf of Mr. Rayford was completed by late February or early March of 2008 and that Mr. Rayford did not file his third - party demand against Nobles regarding 

### the construction of the houses until July 14, 2016, more than eight years later. Peremption may be raised by a peremptory exception. See LSA-C.C. P. art. 927(A)(2). Peremption has been likened to the objection of prescription and the rules 

### governing the burden of proof as to prescription also applyto peremption. See LSA-C.C. 

### art. 3459; Nixon v. Nixon, 2020-0694 (La.App. 1 Cir. 12/30/20), 319 So.3d 315, 318. 

### At the hearing on the exception of peremption, evidence may be introduced to support
or controvert the exception. See LSA-C.C. P. art. 931. If evidence is introduced at the 

### hearing on the peremptoryexception, the trial court's findings offact are reviewed under the manifest error -

clearlywrong standard of review. Rando v. Anco Insulations,,Inc., 2008- 1163 ( La. 5/ 22/09), 16 So.3d 1065, 1082. Louisiana Revised Statutes 9: 2772(A)( 1)( b) provides that no action, whether 

### arising in contract, tort, or otherwise, 

### shall be brought against any person for the construction ofimmovables, orimprovementto immovable property, more than fiveyears after the owner has occupied or taken possession of the improvement, in whole or in part. 

### Having found the fraud exception in LSA-R.S. 9:2772(H)( 1) inapplicable, the trial
court concluded that Mr. Rayford's third - party demand against Nobles, filed 

### approximately eight years after Mr. Rayford took possession of the three rental houses and rented them out,was perempted under LSA-R.S. 9: 2772(A). The trial court sustained 

### the exceptions filed by Nobles in response to Mr. Rayford's third - party demand and 

### dismissed with prejudice the claims of Mr. Rayford in his third -party demand against


### The Louisiana Legislature enacted LSA-R.S. 9:2772 in 1964 to protect building 

### contractors from liability for past construction projects that could extend foran indefinite period of time. 

### Whitney Bank 1, 247 So.3d at 736-37. This statute provides that if an acceptance of the construction or improvements is recorded within six months of
0

## occupancy, the peremptive period begins on the date the acceptance is recorded; if no is recorded within six months ofoccupancy,the peremptive period begins on the date ofoccupancy. LSA-R.S. 9: 2772(A)( 1); 

### Whitney an 1, 247 So.3d at 737. In':this matter, 

### no evidence was presented indicating that an acceptance of
was recorded. 

## However, Mr. Rayford testified atthe hearing thatthe houses were constructed between September of 2007 and April 30, 2008. He further testified 

## that within a few months after completion of construction, the homes were leased and occupied. 

## Therefore, thetestimony ofMr. Rayford established thatsometime beforethe end of 2008, the houses were occupied. 

### However, Mr. Rayford'sthird - partydemand was 

## notfiled until 2016, approximately eightyears later. Because Mr. Rayford filed his third - party den 

### error by objection! prejudice 

### iand more than five years after he took possession of the houses, we find no 

## he trial court in sustaining Nobles' peremptory exceptions, which raised the of peremption and prescription, 

### and dismissing Mr. Rayford's claims with 

### asserted in his third -

party demand against Nobles. CONCLUSION 

## Forthe above reasons, we affirm the February2, 2023judgmentofthetrial court 

# thatdismissed with prejudicetheclaimsfiled byHenryRayford in histhird - partydemand againstNoblesConstruction,L.L.C. AllcostsofthisappealareassessedtoHenryRayford. AFFIRMED.

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