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Betancourt v. Trahan

Court of Appeals of Louisiana, Third Circuit

June 5, 2019

AMY L. BETANCOURT
v.
MARCUS TRAHAN D/B/A REDMARQUE CONSTRUCTION, LLC

          APPEAL FROM THE LAKE CHARLES CITY COURT PARISH OF CALCASIEU, NO. 11-3427 HONORABLE JOHN S. HOOD, CITY COURT JUDGE

          Van C. Seneca Van C. Seneca, L.L.C. Counsel for Defendant/Appellee: Marcus Trahan d/b/a Redmarque Construction, LLC

          Kevin J. Koenig Raggio, Cappel, Chozen & Berniard Counsel for Plaintiff/Appellant: Amy L. Betancourt

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.

          PHYLLIS M. KEATY JUDGE

         Plaintiff, Amy Betancourt, appeals from a judgment granting Defendant's, Marcus Trahan d/b/a Redmarque Construction, LLC's, Exception of No Cause of Action and Peremption. For the following reasons, we amend the trial court judgment and affirm as amended.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff purchased a newly constructed home in Lake Charles, Louisiana, from Defendant on January 3, 2011. She filed a Petition for Damages (original petition) against Defendant in late 2011 under the Louisiana New Home Warranty Act (NHWA)[1] alleging defects regarding the kitchen countertop.[2] In her original petition, Plaintiff alleged that there was "a circular stain on the granite counter top located near the sink that extended down 3-4 tiles," that she had pointed out "various defects" to Defendant prior to her purchase of the home, and that Defendant had assured her that "all defects would be corrected" in a few weeks. She further claimed that Defendant's tile installer replaced the defective tiles with tiles that did not match the existing tile. Plaintiff alleged that she expressed to Defendant her dissatisfaction with the repair done by his subcontractor, after which she asked that the countertop be "completely replaced so as to match throughout." Plaintiff additionally alleged that the countertop was not adequately supported, resulting in its being uneven and causing cracks to form in the wall grouting. She claimed that she had made amicable demand upon Defendant to repair the defective work to no avail, and she sought judgment in her favor for damages to correct the defects.

          In a First Supplemental and Amended Petition (supplemental petition) filed in September 2015, Plaintiff sought to add a paragraph thirteen to her original petition, wherein she asserted that:

         After moving into the home, [she] discovered the following deficiencies in the construction:

a) failure of the sealant and stain on the homes' concrete floors due to improper materials for the application;
b) staining on the bathroom ceiling as a result of water leak;
c) improper repair of the water leak and stains;
d) failure to properly support the kitchen countertop;
e) mismatched tiles on the kitchen counter;
f) cracks in sheetrock due to defendant's failure to properly tape ...

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