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Palermo v. Homes and More, Inc.

Court of Appeals of Louisiana, Third Circuit

December 18, 2019

JOSEPH PALERMO, ET AL.
v.
HOMES AND MORE, INC.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2018-0453 HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE.

          Douglas Robert Holmes Charles D. Marshall, III Chaffe McCall COUNSEL FOR DEFENDANT/APPLICANT: Homes and More, Inc.

          Steven Paul Lemoine Robert H. Schmolke, PLC COUNSEL FOR PLAINTIFF/RESPONDENT: Joseph Palermo Jacqueline Mae Manuel Palermo

          Ronald Cole Richard COUNSEL FOR PLAINTIFF/RESPONDENT: Joseph Palermo Jacqueline Mae Manuel Palermo

          Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR JUDGE.

         Defendant-Relator, Homes and More, Inc. ("H&M"), seeks supervisory writs from the judgment of the trial court which denied its motion for partial summary judgment seeking dismissal of all claims against H&M that are excluded under the Louisiana New Home Warranty Act (NHWA), La. R.S. 9:3141, et seq., including plaintiffs' claims alleging damages due to the presence of "mold" and "consequential damages." For the reasons herein, we grant the writ, make it peremptory, reverse the ruling of the trial court, and enter a partial summary judgment in favor of H&M dismissing Plaintiffs' claims relating to mold, mold damage, and consequential damages with prejudice.

         FACTS AND PROCEDURAL HISTORY

         On February 1, 2018, Plaintiffs filed suit against H&M, asserting that on or about October 15, 2015, the parties entered a contract under which H&M agreed to construct a residential home in Sulphur, Louisiana. Notably, Plaintiffs state in their petition that Defendant was the contractor of the construction of the subject property. The petition goes on to allege that H&M improperly constructed the roof, causing mold and other issues with the property. Regarding the alleged mold in the home, Plaintiffs sought damages for the cost of any mold removal and the cost of any expert required to determine the full extent of the damages to the subject property. Plaintiffs additionally sought consequential damages for, among other things, the "devaluation of a very expensive home" and the "fair market rental value of the home" for the time that Plaintiffs were unable to use the subject property.

         On May 29, 2018, H&M filed its answer to the petition, admitting that it agreed to act as a job coordinator for the construction of Plaintiffs' home. Thereafter, on December 4, 2018, H&M filed a third-party demand naming Scott Cormier, d/b/a MSP Construction & Roofing, and Chris Cormier, d/b/a Cormier's Roofing & Construction, as third-party defendants. The third-party demand asserted that H&M hired Scott Cormier and Chris Cormier as subcontractors who supplied labor and/or materials for Plaintiffs' home. Therein, H&M specifically pleaded the NHWA, under which it, as the "builder," may be found liable to Plaintiffs, as "owners," for the defective workmanship or materials of Scott Cormier and/or Chris Cormier under the Act's mandatory warranty.

         On December 10, 2018, H&M filed a motion for partial summary judgment seeking a dismissal of all claims asserted by Plaintiffs that are excluded under the NHWA, namely claims for consequential damages and damages due to the presence of mold. Louisiana Revised Statutes 9:3144(B) states: "Unless the parties otherwise agree in writing, the builder's warranty shall exclude the following items:.... (17) [c]onsequential damages ... [and] (19) [m]old and mold damage." Thereafter, on February 28, 2019, Plaintiffs filed an opposition memorandum to H&M's motion, asserting that a genuine issue of material fact exists as to whether H&M meets the definition of a "builder" under the NHWA, La.R.S. 9:3143, especially given its own self-characterization as a "job coordinator." In response, H&M's reply memorandum sought to demonstrate that, regardless of the characterizations used by the parties, H&M served the role and functions of a general contractor and is, thus, subject to the NHWA.

         On March 21, 2019, the motion for partial summary judgment was heard before the trial court.[1] Therein, H&M argued that as a general contractor, it is considered a "builder" under the NHWA and thus Plaintiffs must pursue their claims under the Act, subject to its exclusions. See La.R.S. 9:3143 and 9:3144. H&M also clarified that a granting of its motion would not dismiss the case, but rather advances the case and merely sets forth the issues in a new home construction case against a builder. In response, Plaintiffs asserted it would be a mistake to conclude that all general contractors are "builders," because of the fact that H&M characterized itself as a "job coordinator."

         The trial court orally denied H&M's motion at the hearing, finding that it was "not convinced" just yet, especially in light of Plaintiffs' argument that discovery would help answer remaining questions. The judgment was signed on April 2, 2019. In this writ application, H&M presents one question for this court's consideration: whether a general contractor qualifies as a "builder" under the NHWA, such that it was entitled to a grant of partial ...


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