BATON ROUGE — An appeal over an award of damages to a construction company was rejected by Judge Toni M. Higginbotham, who wrote that Louisiana 1st Circuit Court of Appeal found "no error in the trial court's judgment in dismissing this claim with prejudice.”

Judge Guy Holdridge concurred, saying “The third-party demand should be dismissed because the original demand is also perempted, and therefore the cause of action no longer exists.”

This legal action was a result of interaction between three companies involved in a construction project in Hammond. Nottingham Construction Co. was retained to make improvements on the North Plant Lift Station, used for wastewater, in November 2005. Wastewater lift stations are facilities designed to move wastewater from lower to higher elevation.

According to the April 13 ruling, Nottingham retained Professional Construction Services, (PCS) to drive and remove sheet piles used to construct a shoring system known as a cofferdam that allowed Nottingham to perform below-ground work on the project. The sheet piles were rented by Nottingham from J.D. Fields & Co. 

Upon completion of the project, the city of Hammond accepted the work performed on Dec. 19, 2006.  The acceptance was registered in the mortgage records on Dec. 20, 2006.  

After construction of the cofferdam was completed, the J.D. Fields said the sheet piles had sustained damage. Fields submitted a final invoice to Nottingham for a balance of $56,785.73 for damage to the sheet piles. Nottingham denied that any damage had occurred and refused to pay. Later, Nottingham claimed that PCS damaged the pilings and still refused to pay.  

This action precipitated additional legal action. Fields filed a lawsuit in the 19th Judicial District Court on Oct. 10, 2007, for damages against Nottingham and its alleged successor, Wharton-Smith Inc. The company also sued PCS for negligence.

Nottingham filed a third-party demand against PCS, but that claim was dismissed without prejudice when PCS filed a dilatory exception, raising the objection of prematurity. According to information in the ruling, PCS claimed Nottingham was not owed anything until a judgment in favor of J.D. Fields was rendered and that Nottingham was compelled by judgment to pay J.D. Fields. J.D. Fields' claim against PCS was dismissed on PCS' motion for summary judgment.   

According to the ruling, J.D. Fields' 19th Judicial District Court lawsuit was dismissed as abandoned June 21, 2012. Not willing to give up, J.D. Fields filed another petition for damages on Aug. 6, 2012, asserting the same claims in the 21st Judicial District Court as in the prior lawsuit in the 19th Judicial District Court.

On Aug. 10, 2016, Nottingham filed a third-party demand against PCS in the 21st Judicial District Court, alleging again that PCS owed Nottingham reimbursement for all litigation costs and expenses incurred, pursuant to the subcontract between Nottingham and PCS.

In response to the third-party demand, PCS filed a peremptory exception. PCS also argued that Nottingham's third-party claims against PCS were perempted pursuant a state statute that establishes a five-year peremptory period “beginning on the date of recordation of acceptance of the work by the owner of the Project, against persons performing the construction of an immovable or improvement to immovable property,” according to the ruling. After a hearing on PCS' exception of peremption, the trial court granted the exception and dismissed all of Nottingham' s claims against PCS on April 26, 2017.  

Nottingham appealed that decision, maintaining that its indemnity claim against PCS was not perempted.  

The trial court determined that Nottingham's indemnity claim against PCS had perempted, ruling that “the expiration of the peremptive time period destroys the cause of action itself, and nothing may interfere with the running of a peremptive time period."

The appeals court upheld this decision, stating that “Nevertheless, because the five-year peremptive period in Louisiana applies to all actions, including third-party demands that involve recovery on a contract arising out of an engagement to construct immovable property, such as the subcontract at issue, by the distinct terms of the statute, Nottingham' s third-party demand against PCS clearly falls within the purview of this statute and the claim is perempted. The fact that Nottingham's claim against PCS is also premature does not prevent the claim from being perempted.”

Additional support for this decision was expressed in the appeals court ruling. 

“Peremption tolls regardless of when a cause of action for indemnity arises," the ruling said. "Nottingham filed its third-party demand on August 10, 2016, which is well past the five years after the City of Hammond registered acceptance of the Project in the mortgage records on December 20, 2006.  Thus, Nottingham's third-party demand against PCS is time-barred, and because the period is peremptive, it cannot be renounced, interrupted or suspended. Accordingly, we find no error in the trial court's judgment dismissing Nottingham's claim against PCS with prejudice.”

The three-judge panel was comprised of Higginbotham, Holdridge and Judge Allison H. Penzato.

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