ROGER P. WILLIAMS
KELLY WOOD AND MICHAEL R. WOOD, ABC INSURANCE COMPANY, PAUL DILEO AND A HOME CHECK BY PAUL DILEO, LLC
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-09739,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.
L. BISSO ROBERT G. MILLER, JR. BISSO & MILLER, L.L.C.
COUNSEL FOR PLAINTIFF/APPELLANT.
S. SCLAFANI THE LAW OFFICE OF KYLE S. SCLAFANI COUNSEL FOR
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge
Sandra Cabrina Jenkins
F. MCKAY III CHIEF JUDGE.
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.
OF FACTS AND PROCEDURAL HISTORY
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.
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.
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.
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
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.
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.
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).
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. 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.
of the NHWA
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.
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
La. R.S. 9:3144
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 ...