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Shepard v. Robinson Construction, LLC

Court of Appeals of Louisiana, Second Circuit

July 1, 2015

DEBBIE SHEPARD, Plaintiff-Appellee
v.
ROBINSON CONSTRUCTION, LLC, Defendant-Appellant

Page 388

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana. Trial Court No. 133004. Honorable Michael O. Craig, Judge.

MARK W. ODOM, Counsel for Appellant.

KITCHEN LAW FIRM, APLC, By: Richard R. Ray, Counsel for Appellee.

Before STEWART, CARAWAY and MOORE, JJ.

OPINION

Page 389

[49,823 La.App. 2 Cir. 1] CARAWAY, J.

This dispute involves plaintiff's purchase of a residential lot and new home. Before the sale was closed, the builder acknowledged its responsibility for a drainage problem affecting the backyard area of the lot. After the sale, when the problem persisted and this action was brought, the builder asserted that the plaintiff is without legal remedy because Louisiana's New Home Warranty Act does not provide the new home buyer with a warranty for lot drainage. The trial court rejected that argument and awarded plaintiff the costs of correcting the drainage and attorney fees. The builder appeals, and for the following reasons, we affirm.

Facts

This case arises from an alleged drainage problem with a residential lot sold with a new home built by the defendant, Robinson Construction, LLC (hereinafter " Robinson" ), for the plaintiff, Debbie Shepard (hereinafter " Shepard" ). Shepard noticed, prior to closing, that water would pool in the backyard of the property after periods of rain. Shepard notified Robinson, who added the drainage issue to the " punch list" of items to remedy before completion of the sale. The punch list stated that Robinson would " fill in hole by driveway/backyard low water lays there when it rains."

The closing was completed on May 7, 2009. However, the drainage issue had not been sufficiently addressed. At closing, Robinson assured Shepard that the problem was caused by ineffective grading and that the problem would be fixed. Shepard moved into the home but alleges that the responsiveness of Robinson became increasingly slower. After a period of months, Robinson eventually installed three underground pipes as part of a [49,823 La.App. 2 Cir. 2] drainage system to address the problem. Shepard alleges that these pipes made the problem worse. Subsequently, Shepard made written demand upon Robinson to remedy the problem. This demand was not addressed, and Shepard filed suit on May 5, 2010.

Robinson filed a peremptory exception of no cause of action, arguing that any claim Shepard may have against Robinson is covered under the New Home Warranty Act (" NHWA" ), La. R.S. 9:3141, et seq., as

Page 390

it provides the exclusive remedy between a builder and an owner relative to home construction. Shepard filed an amended petition claiming a right of action under NHWA. On July 10, 2010, the trial court granted the peremptory exception insofar as it related to any claims Shepard asserted in redhibition.

The trial featured expert witnesses from both parties. Shepard's expert, Brian Smith, a professional engineer and expert in the fields of drainage and grading, testified that at least 75% of the lot was not graded in accordance with applicable building codes. Smith also testified that there were cracks in the bricks on the exterior of the home, and he attributed those cracks to inadequate drainage. Additionally, the defective drainage could lead to future structural and foundation problems if not addressed and corrected. On cross-examination, when asked whether he had any knowledge of any actual foundation damage as opposed to potential problems or concerns, Smith replied that he did not. He agreed that there were concerns only about the foundation for the future. Robinson's expert, Donald Durr, acknowledged the existence of the problem. Durr testified that he would suggest a slightly different solution than the one proposed by [49,823 La.App. 2 Cir. 3] Smith, but Durr also agreed that there could be future structural and foundation issues with the home if the drainage was not adequately corrected.

At trial, Shepard convinced the court that Robinson failed to meet the original grading and draining requirements and that the subsequent attempts to repair the problem were insufficient to satisfy building codes and performance standards. Shepard's estimate from a third party of the costs to repair the drainage problem totaled $15,269, which became the court's award for damages.

The trial court issued written reasons, explaining that Robinson's failure to comply with building standards, with regard to grading and drainage, constituted a defect covered by NHWA. Although there were no existing physical damages to the home, the trial court acknowledged that the grading of the yard is a building standard distinct from landscaping, which is excluded under NHWA. The work required to remedy the problem included removing the existing drain work, removing the fence in the backyard to regrade, regrading the front and backyards, replacing the irrigation after the grading, and ...


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