Opinion
No. 2009 CA 1746.
September 13, 2010.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA SUIT NUMBER 2004-11723 HONORABLE WILLIAM J. BURRIS, PRESIDING.
Raymond C. Burkart, Jr., Katherine O. Burkart, Covington, LA, Counsel for Plaintiffs/Appellants, Sheila Vanderbrook, et al.
William J. Jones, Jr., Leland R. Gallaspy, Covington, LA, Counsel for Defendant/Appellee, Lee Road Development.
Roger C. Linde, F. Forrester Willoz IV, Metairie, LA, Counsel for Defendants/Appellees, Alternative Design/Build Group, L.L.C., Gary Salathe, Martin Murphy.
Michael F. Weiner, Mark W. Frilot, Sandra Varnado, Mandeville, LA, Counsel for Defendants/Appellees, Christopher R. Jean, Highland Lakes Development Corp., Johnny F. Smith Truck Dragline Service, Inc., The Highlands Homeowners Association of St. Tammany, Inc., Johnny F. Smith Testamentary Trust, Janice Seal Smith Stumpf, and Barney L. Core
Mitchell A. Palmer, Tom W. Thornhill, Slidell, LA, Counsel for Defendants/Appellees, Palmers, Inc. and Willis A. Palmer.
Alan A. Zaunbrecher, Metairie, LA, Counsel for Defendants/Appellees, David Glass, Wade Glass, and Glass Contracting of St. Tammany, Inc.
Michael P. Mentz, Alayne R. Corcoran, Metairie, LA, Counsel for Defendants/Appellees, Muller Muller, L.L.C., Richard, Muller, and Silvia Muller.
Adrian Spell, Bush, LA, Defendant/Appellee in proper person.
Lester F. Parks, Jr., Carole F. Parks, Slidell, LA, Defendants/Appellees in proper person.
Jack E. Truitt, Nancy N. Butcher, Madisonville, LA, Counsel for Defendants/Appellees, Jodi McIntyre, wife of/and Gregory, "Scott" Bridges.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
Plaintiffs, Sheila Vanderbrook, et al., appeal from a judgment of the trial court sustaining, in part, a peremptory exception raising the objection of prescription filed by defendants, Alternative Design/Build Group, LLC, Gary Salathe, and Martin Murphy, as to claims for damages raised in a cross-claim filed by defendant, the Highlands Homeowners Association of St. Tammany, Inc. (Highlands Homeowners Association). For the reasons that follow, we affirm.
Plaintiffs, owners of immovable property and improvements in Highland Lakes Subdivision in St. Tammany Parish, filed a lengthy petition on April 8, 2004, against a number of defendants seeking a declaratory judgment and damages as a result of the development, ownership, and construction of the lakes, earthen dams, spillways, and roadways of Highland Lakes Subdivision. In their petition, plaintiffs asserted claims against numerous defendants, including Alternative Design/Build Group, LLC, Gary Salathe, and Martin Murphy, for fraud, negligence, breach of duties, intentional acts, and respondeat superior. Plaintiffs also named the Highlands Homeowners Association as a defendant in the original suit.
Thereafter, plaintiffs filed a supplemental and amending petition to clarify their claims against the named defendants. On June 14, 2007, plaintiffs filed a third supplemental and amending petition asserting a derivative action pursuant to La.C.C.P. art. 611 et seq. as immovable property owners in the Highland Lakes Subdivision and as members of the Highlands Homeowners Association. Plaintiffs subsequently filed a fourth supplemental and amending petition to clarify their derivative claims.
Plaintiffs amended their petition in response to a judgment of the trial court sustaining exceptions filed by several defendants raising the objections of vagueness and nonconformity of the petition.
On July 14, 2008, Highlands Homeowners Association filed a cross-claim against all other defendants, seeking damages, contribution and/or indemnification for any damages that Highlands Homeowners Association was liable for, reimbursement to Highlands Homeowners Association for repair costs, and a declaration of ownership of the roads, lakes, dams, and spillways in Highland Lakes Subdivision.
Thereafter, Alternative Design/Build Group, LLC, Gary Salathe, and Martin Murphy filed an exception raising the objection of prescription regarding the cross-claim. Following a hearing on the exception, the trial court rendered judgment sustaining the exception in part, dismissing any and all tort claims presented in the cross-claim of Highlands Homeowners Association, but denying the exceptions in part as to the claim for contribution and/or indemnification.
Defendants Richard Muller, Silvia Muller, and Muller Muller, LLC, Jodi McIntyre wife of/and Gregory Bridges, Palmers, Inc., and Willis A. Palmer also filed exceptions raising the objection of prescription, which are the subject of a separate appeal decided this date in Vanderbrook v. Jean, 09-1744 (La. App. 1st Cir. 9/10/10) (unpublished opinion).
Plaintiffs now appeal from this judgment, asserting that the cross-claim was not prescribed at the time it was filed because prescription was interrupted against the other previously-named defendants pursuant to the holding in Allstate Insurance Company v. Theriot, 376 So. 2d 950 (La. 1979); that the timely filing of the main demand in a court of competent jurisdiction and venue on April 8, 2004, interrupted prescription as to all joint and solidary obligors; and that prescription was suspended under the doctrine of contra non valentem while the defendants controlled the board of directors of Highlands Homeowners Association.
However, for the reasons stated in a companion opinion handed down this date in Vanderbrook v. Jean, 09-1744 (La. App. 1st Cir. 9/10/10), we find plaintiffs arguments to be without merit and that the tort claims contained in the cross-claim asserted by Highlands Homeowners Association are prescribed. Accordingly, we affirm the judgment of the district court, sustaining, in part, the peremptory exception raising the objection of prescription and dismissing the Highlands Homeowners Association's tort claims as presented in its cross-claim against the defendants/appellees. All costs of this appeal are assessed to the plaintiffs/appellants.
We issue this memorandum opinion in compliance with Uniform Rules — Courts of Appeal, Rule 2-16.1B.