Opinion
NO. 2013 CW 0914
09-09-2013
KEVIN O. AINSWORTH, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF HIS MINOR CHILDREN ADDISON AINSWORTH AND AUSTIN AINSWORTH, AND PAULETTE AINSWORTH, INDIVIDUALLY v. TRI STAR BUILDERS, L.L.C., THE MARYLAND CASUALTY INSURANCE COMPANY, DAVID PASCAL LAW, THOMAS (TOMMY) WAINWRIGHT, THOMAS WAINWRIGHT PLUMBING COMPANY AND/OR THOMAS (TOMMY) WAINWRIGHT D/B/A THOMAS WAINWRIGHT PLUMBING COMPANY AND ABC INSURANCE COMPANY
In Re: Thomas Wainright and Thomas Wainwright Plumbing Company, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 557-359.
BEFORE: KUHN, HIGGINBOTHAM AND THERIOT, JJ.
WRIT DENIED. "Once a party's cause of action accrues, it becomes a vested property right that may not constitutionally be divested." Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La. 1992); Ebinger v. Venus Const. Corp., 10-2516 (La. 7/1/11), 65 So.3d 1279, 1286. Under the exposure theory as applied in Cole, Plaintiffs' cause of action began to accrue on the date they moved into the home at issue, and thus was vested prior to the effective date of the 2003 amendment to La. R.S. 9:2772. The five-year peremptive period of the amendment cannot be applied to disturb the right which was already vested.
JEK
TMH
Theriot, J., dissents and would not consider the writ application. The writ application fails to comply with Rule 4-5 of the Uniform Rules of Louisiana Courts of Appeal. Relators did not include a copy of the petition in violation of Uniform Rules of Louisiana Courts of Appeal Rule 4-5 (C)(8). In order for this Court to examine the trial court's ruling, it must be presented with the pleadings reviewed by the trial court, specifically the original petition. COURT OF APPEAL, FIRST CIRCUIT ____________________
DEPUTY CLERK OF COURT
FOR THE COURT