Homeowner plaintiffs appeal the trial courts judgment sustaining defendants’ peremptory exception raising the objection of prescription. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 16, 2017, Leonard A. Robinson and Peggy M. Robinson, appearing on their own behalf, filed suit against Wennal Hall and W.H. Hall Construction
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(collectively “Hall Construction”) contending, that they entered a contract with Mr. Hall to complete repairs on their home caused by an August 2008 storm. The Robinsons asserted that after a “mild storm” in 2012 they “noticed another indicator” that Mr. Halls repair work might have been defective, and that they called Mr. Hall to re-inspect the work and make necessary repairs. They further alleged that they again notified Mr. Hall in 2015 and requested that he “fully correct his workmanship.” The Robinsons asserted that in August 2016, “the historic flood came, accompanied with wind and hail,” destroying the chimney, inundating the home, and resulting in a loss of contents. Finally, the Robinsons contend that as a result of Mr. Halls defective workmanship, the Robinsons’ insurance company refused to cover the loss or repair the home.
On February 9, 2018, counsel enrolled for the Robinsons. On October 11, 2019, the Robinsons, through counsel, filed a “Motion to Amend Petition to Add Defendants” adding as defendants Foremost Insurance Company, Grand Rapids, Michigan
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(Foremost) as the homeowners’ insurer for the Robinsons and Atain Specialty Insurance Company, as the insurer for Mr. Hall.
On December 16, 2019, Hall Construction filed a peremptory exception raising the objection of prescription. In its memorandum in support of the exception, Hall Construction alleged that the Robinsons’ claims were perempted under the five-year period set forth in La. R.S. 9:2772 because the suit was filed over five years after the Robinsons occupied the residence following completion of the work, and that the Robinsons’ claims were prescribed under La. Civ. Code art. 3492 because the Robinsons in their petition state that they were aware of Hall Constructions faulty work in 2012 more than one year prior to filing suit. Hall Constructions exception came before the trial court on March 9, 2020, and the matter was taken under advisement. On July 17, 2020, the trial court issued a “Ruling on Peremptory Exception of Prescription” concluding that the Robinsons’ claims against Hall Construction were perempted by La. R.S. 9:2772. A judgment was signed in conformance with the trial courts ruling on November 23, 2020. On January 8, 2021, the Robinsons, through counsel, filed a motion to appeal the November 23, 2020 judgment.
On July 30, 2020, Foremost also filed a peremptory exception raising the objection of prescription. Neither the transcript nor the judgment from that hearing are part of the appellate record.
After filing their motion to appeal, the Robinsons, whose brief was initially due on May 10, 2021, filed multiple motions for extension of time to file their brief. In their second motion for extension of time, their attorney noted that she had been declared ineligible to practice law for a period of time. The Robinsons ultimately filed their brief in proper person on October 7, 2021. The sole focus of the Robinsons’ brief was a trial court judgment addressing Foremosts exception of prescription, and attached to their brief was a March 17, 2021 judgment sustaining in part and overruling in part Foremosts exception.
Hall Construction responded contending that the Robinsons’ brief did not address the November 23, 2020 judgment on appeal, and the Robinsons have abandoned their right to appeal any issues related to that judgment. In the alternative, Hall Construction contends that the November 23, 2020 judgment was well supported by the law and facts and should be affirmed on the merits. Additionally, Foremost filed a motion to strike the Robinsons’ brief and motion to dismiss the appeal.
DISCUSSION
As noted, the Robinsons’ brief addresses a March 17, 2021 judgment ruling on Foremosts exception of prescription. Our review of their brief reveals no viable arguments related to the November 23, 2020 judgment that the Robinsons appealed. However, considering the Robinsons’ pro se status caused by their attorneys suspension from the practice of law and that Hall Constructions prescription exception must be determined based on the allegations in the petition,
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we will review the merits of the November 23, 2020 judgment.
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See Burgo v. Chambers, 2015-0484 (La. App. 1st Cir. 11/9/15), 2015 WL 6951264, *3 (unpublished).
Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Quatrevingt v. State through Landry, 2017-0884 (La. App. 1st Cir. 2/8/18), 242 So.3d 625, 632, writ denied, 2018-0391 (La. 4/27/18), 239 So.3d 837. However, if the plaintiffs’ claim is perempted or prescribed on its face, the burden shifts to the plaintiff to show the action is not perempted or prescribed. Whitney Bank v. Rayford, 2017-1244 (La. App. 1st Cir. 3/29/18), 247 So.3d 733, 736. Further, where no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate courts role is to determine whether the trial courts ruling was legally correct. Whitney Bank, 247 So.3d at 736.
The trial court determined that the Robinsons’ claims against Hall Construction were perempted under the five-year peremptive period set forth in La. R.S. 9:2772
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since the Robinsons’ petition filed on August 16, 2017, was filed more than nine years after Hall Construction finished the repairs. Under La. R.S. 9:2772, the peremptive period begins on the date of registry in the mortgage office of acceptance of the work by owner or within six months from the date the owner has occupied or taken possession of the improvement. The petition indicates that the repair work began after an August 2008 storm, however it does not state when the Robinsons took occupancy of the home. While it appears that the Robinsons occupied the home since 2008, without any allegation of the date acceptance was recorded or the date of occupancy, the Robinsons’ claims are not clearly perempted on the face of the petition.
However, Hall Constructions peremptory exception additionally urged an exception of prescription based on La. Civ. Code articles 3492. Article 3492 provides delictual actions are subject to a liberative prescription of one year commencing from the date the injury or damage is sustained. Further, Article 3493 provides that for damage caused to immovable property, the one-year prescriptive period commences on the day the owner of the immovable acquired, or should have acquired, knowledge of the damage. Thus, the commencement of prescription under this article is triggered by actual or constructive knowledge of damage. Hogg v. Chevron USA, Inc., 2009-2632, 2009-2635 (La. 7/6/10), 45 So.3d 991, 997. In their petition, the Robinsons state that in 2012, they noticed another indicator that Halls repair work might be defective and in 2015 requested that Hall correct his workmanship. Thus, the Robinsons acknowledge in the petition that they were aware that Halls repair work might be defective in 2012 and certainly by 2015, more than one year prior to their petition for damages filed in 2017. Therefore, the Robinsons’ petition is prescribed on its face, and the burden shifted to the Robinsons to show the action is not prescribed.
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As noted, the Robinsons introduced no evidence at the hearing to prove that their claims were not prescribed. Accordingly, we affirm the trial court judgment sustaining Hall Constructions exception of prescription.
CONCLUSION
For the foregoing reasons, the November 23, 2020 judgment of the trial court sustaining Hall Constructions peremptory exception raising the objection of prescription is affirmed. The motion to dismiss the appeal is denied. All costs of the appeal are assessed to plaintiff-appellants, Leonard A. Robinson and Peggy M. Robinson.
AFFIRMED; MOTION TO DISMISS APPEAL DENIED.
FOOTNOTES
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. In their petition, Wennal Hall was incorrectly named as “Wendall Hall” and “WH Hall Construction” was incorrectly named as “N.H. Hall Contractors.”
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. In the amended petition, Foremost was incorrectly named as “Foremost Insurance Group.”
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. Herein, although Hall Construction attached an exhibit to their exception, no evidence was introduced at the hearing on the exception; therefore, the exception must be decided on the facts alleged in the petition with all allegations accepted as true. See Lomont v. Bennett, 2014-2483 (La. 6/30/15), 172 So.3d 620, 627, cert. denied sub. norm., Myer-Bennett v. Lomont, 577 U.S. 1139, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016).
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. For those reasons, we further deny Foremosts motion to dismiss the appeal.
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. Louisiana Revised Statute 9:2772 provides in pertinent part:A. Except as otherwise provided in this Subsection, no action, whether ex contractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable 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, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1:(l)(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.
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. A liberal reading of the Robinsons’ pro se petition revealed that they did not assert a claim for breach of contract.
HESTER, J.