JOSEPH PALERMO, ET AL.
HOMES AND MORE, INC.
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2018-0453 HONORABLE ROBERT LANE WYATT,
Douglas Robert Holmes Charles D. Marshall, III Chaffe McCall
COUNSEL FOR DEFENDANT/APPLICANT: Homes and More, Inc.
Paul Lemoine Robert H. Schmolke, PLC COUNSEL FOR
PLAINTIFF/RESPONDENT: Joseph Palermo Jacqueline Mae Manuel
Cole Richard COUNSEL FOR PLAINTIFF/RESPONDENT: Joseph Palermo
Jacqueline Mae Manuel Palermo
composed of Sylvia R. Cooks, John E. Conery, and Van H.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
March 21, 2019, the motion for partial summary judgment was
heard before the trial court. 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
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 ...