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Williams v. Wood

Court of Appeals of Louisiana, Fourth Circuit

October 31, 2018

ROGER P. WILLIAMS
v.
KELLY WOOD AND MICHAEL R. WOOD, ABC INSURANCE COMPANY, PAUL DILEO AND A HOME CHECK BY PAUL DILEO, LLC

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09739, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.

          REGEL L. BISSO ROBERT G. MILLER, JR. BISSO & MILLER, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT.

          KYLE S. SCLAFANI THE LAW OFFICE OF KYLE S. SCLAFANI COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins

          JAMES F. MCKAY III CHIEF JUDGE.

         This appeal stems from a redhibition action filed by the plaintiff/buyer, Roger P. Williams ("Mr. Williams"), against the defendants/sellers, Kelly and Michael R. Wood (the "Woods"). Mr. Williams seeks review of the October 23, 2017 judgment, which granted the Woods' exceptions of no cause of action and no right of action, and dismissed Mr. Williams' action with prejudice. For the reasons set forth below, we affirm in part, reverse in part, and remand for further proceedings.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         In 2014, the Woods commenced construction of a residential double (the "Property") located at 6219-21 Vermillion Boulevard in New Orleans. Mr. Wood, a naval architect and marine engineer, prepared the plans and specifications. Upon completion on December 29, 2014, the Woods rented out the Property before selling it to Mr. Williams on January 19, 2016. A home inspection, performed prior to the sale by Paul DiLeo and A Home Check by Paul Dileo, LLC, found no evidence of any structural defects. [1]

         Subsequent to the purchase of the Property, Mr. Williams claims to have noticed vibrations and other signs of structural problems sufficient to cause him to hire a structural engineer to perform an inspection. He further claims that the inspection, conducted by Gurtler Bros. Consultants, Inc. on August 2, 2016, identified numerous structural defects in connection with the foundation.

         On September 29, 2016, Mr. Williams filed a Petition in Redhibition, Breach of Contract, Breach of Duty and Negligence. Specifically, the petition alleges a claim against the Woods in redhibition, and individually against Mr. Wood for professional negligence, as the engineer responsible for the design.

         In response, the Woods filed an exception of no cause of action arguing that Mr. Williams' exclusive remedy falls within the New Home Warranty Act ("NHWA"), not in redhibition. The Woods also filed an exception arguing that Mr. Williams has no right of action, and that the petition states no cause of action, against Mr. Wood for professional negligence.

         The matter was heard October 6, 2017. The judgment rendered October 23, 2017, granted the exceptions and dismissed Mr. Williams' action with prejudice. This appeal followed.

         On appeal, Mr. Williams asserts that the trial court erred: (1) in finding that the NHWA preempted the claim for redhibition despite the fact that the Property was not a "new home"; (2) in granting the exceptions and dismissing the negligence claim against Mr. Wood; and (3) in finding that the petition failed to allege any damage caused by Mr. Wood's defective design.

         DISCUSSION

         "Exceptions of no cause of action and no right of action present legal questions, and are reviewed under the de novo standard." Zeigler v. Housing Auth. of New Orleans, 2012-1168, p. 6 (La.App. 4 Cir. 4/24/13), 118 So.3d 442, 449 (citing St. Pierre v. Northrop Grumman Shipbuilding, Inc., 2012-545, p. 7 (La.App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009).

         As further explained by the Supreme Court in Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, 2005-719, pp. 6-7, (La. 3/17/06), 929 So.2d 1211, 1217,

The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La. 9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Industrial Cos., 02-0665 at p. 6, 837 So.2d at 1213.[2] The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Id. In reviewing a district court's ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court's decision is based only on the sufficiency of the petition. Id. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La. 1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La. 1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., 02-0665 at p. 7, 837 So.2d at 1213.

         Application of the NHWA

         The NHWA was introduced by the legislature to "promote commerce in Louisiana by providing clear, concise and mandatory warranties for the purchasers and occupants of new homes in Louisiana," and the act sets out "the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction." La. R.S. 9:3141; Shaw v. Acadian Builders and Contractors, LLC, 2013-0397, p. 6 (La. 12/10/13), 130 So.3d 914, 917. The NHWA "provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply." La. R.S. 9:3150.

         The NHWA provides the following express warranties:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(3) Five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

La. R.S. 9:3144

         The following definitions are set forth in La. R.S. 9:3143:

For purposes of this Chapter the following words, phrases, and terms shall be defined and ...

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