A property owner is fighting back after a court dismissed her claims of negligence against a construction company. On July 16, 2024, Ebony Holmes filed an appeal in the Court of Appeal for the Fourth Circuit in Louisiana against Tidewater Constructors, LLC. The appeal challenges an earlier district court ruling that dismissed her claims on the grounds of prescription.
Holmes owns property on Allen Toussaint Boulevard in New Orleans, which she alleges was damaged during a public works project aimed at repairing streets in her neighborhood. According to Holmes' petition filed on August 19, 2022, the City of New Orleans contracted Hard Rock Construction, LLC to replace water and drainage lines near her property. Hard Rock then subcontracted Tidewater to perform the work, who further subcontracted laborers and equipment from V Keeler & Associates, Inc.
The incident in question occurred on February 26, 2021, when one of the laborers operating an excavator accidentally caught a power line with the bucket of the machine. This caused damage to the power line and resulted in a power outage. Holmes reported this damage to the City and had power restored. However, she began noticing significant damage to her property later that year on August 28, including doors not closing properly, windows not opening, and cracks appearing in floor tiles, ceilings, and walls.
In her lawsuit, Holmes named multiple defendants: the City of New Orleans; Sewerage and Water Board of New Orleans; Hard Rock Construction; Tidewater Constructors; V Keeler & Associates; and their insurers. She claimed that their negligence led to the damages observed on her property and argued they were "responsible jointly, severally, and in solido for the construction and maintenance of public streets."
On October 11, 2022, Hard Rock filed a third-party demand against Tidewater seeking indemnity or contribution for any award granted to Holmes due to Tidewater's alleged negligence. They argued that under their subcontract agreement with Tidewater should bear responsibility for defense costs—a tender which was not accepted by Tidewater.
Tidewater responded by filing an exception of prescription on August 22, 2023. They argued that Holmes' claim was time-barred because she did not file her lawsuit within one year of the February 26 incident involving the power line. Holmes countered this argument by stating she filed within one year from discovering damages to her home as per La. C.C. Article 3493 or alternatively within two years from completion and acceptance of public works under La. R.S. 9:5624.
After hearing oral arguments but without introducing evidence on September 29th before rendering its decision on October 12th followed by judgment dated May14th—the district court sided with Tidewater dismissing Holmes’ claims based upon prescription grounds leading up now towards this current appeal where five assignments errors have been set forth:
1) Failure acknowledging operative date being August28th instead February26th.
2) Granting Exception Prescription despite timely filing suit within one-year discovery damages accordance La.C.C.Article3493.
3) Tolling Doctrine Contra Non Valentem continuing tort suspending prescription until harmful conduct abated.
4) Timely filing suit two-years accordance La.R.S.§9:5624.
5) Factual issue deciding jury rather than granting Defendant’s Exception Prescription.
Holmes seeks relief from appellate court arguing factual disputes regarding causation damages need resolution through evidence presentation thus district erred failing refer merits trial intertwined prescription determination legal question remains unresolved face petition alone taking allegations true premature decide appropriate prescriptive period applies necessitating remand further proceedings consistent opinion rendered here today vacating prior judgment dismissing claims against defendant/appellee-Tidewater Constructors LLC remanding case back district court continuation litigation process ensuring justice served all parties involved matter moving forward accordingly
Representing plaintiff/appellant Ebony Holmes are attorneys Gerald Wasserman (Law Offices Gerald Wasserman LLC), Steven E Psarellis (Steven E Psarellis APLC).
Defendants/appellees are represented Ethan N Penn Kathleen D Lambert (Musgrave McLachlan Penn LLC).
The Case ID No2022-07540