David and Rochelle Boudreaux VS Blake G. Matherne and Sandra Deroche Matherne
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 1996 DAVID AND ROCHELLE BOUDREAUX VERSUS BLAKE G MATHERNE AND SANDRA DEROCHE MATHERNE Judgment rendered May 6 2011 Appealed from the 32nd Judicial District Court in and for the Parish of Terrebonne Louisiana Trial Court No 144 492 Honorable George J Larke Jr Judge EMMEME3 JOSEPH J WEIGAND JR HOUMA LA ATTORNEYS FOR AND DAVID AND ROCHELLE DOUGLAS J AUTHEMENT BOUDREAUX APPELLEES PLAINTIFFS HOUMA LA MARK D PLAISANCE ATTORNEY FOR BAKER LA DEFENDANTS APPELLANTS BLAKE G AND SANDRA DEROCHE MATHERNE BEFORE KUHN PETTIGREW AND HIGGINBOTHAM 33 PETTIGREW J Defendantsappellants Blake G Matherne and Sandra Deroche Matherne appeal the trial court judgment in favor of plaintiffsappellees David and Rochelle Boudreaux s awarding the Boudreauxes damages and attorney fees pursuant to the New Home Warranty Act NHWA La R 9 et seq and for redhibitory defects in S 3141 connection with the construction of the Boudreauxes residence in Terrebonne Parish For the reasons that follow we affirm PERTINENT FACTS AND RULING OF THE TRIAL COURT According to the record the Boudreauxes purchased a new home from the Mathernes on February 27 2004 Within a month of the sale several alleged defects in the house started to surface The Boudreauxes contacted the Mathernes who agreed to try to resolve the problems When the defects in the house were not remedied by the Mathernes the Boudreauxes filed a petition for damages seeking recovery under the laws of redhibition They later amended the petition to include a claim for damages pursuant to the NHWA In their answer to the Boudreauxes petition the Mathernes stated that they were ready willing and able to make the minor cosmetic repairs and adjustments needed in the subject property and have been since the closing of the sale but had been prevented from doing so by the Boudreauxes The Mathernes also maintained that the NHWA provides the sole remedies available to the Boudreauxes as the home they purchased was a new construction The matter proceeded to a bench trial on October 28 2009 at which time the trial court heard testimony from numerous witnesses and considered various exhibits that were introduced into evidence The trial court ruled from the bench in favor of the Boudreauxes awarding 21 in damages for redhibitory defects in the driveway 10 284 and the walkway from the house to the street The trial court further found that pursuant to the NHWA the Boudreauxes were entitled to recover 7 for the 00 000 ceramic tile floors 1 for the plumbing 1 for the brickwork and 00 800 00 000 00 500 1 for the baseboards painting and repair of the doors kitchen cabinets and vanities The trial court also awarded the Boudreauxes 7 in attorney fees and 00 500 M assessed all court costs against the Mathernes including the 500 expert fee for 00 plaintiffs expert witness A judgment in accordance with these findings was signed by the trial court on November 4 2009 This appeal by the Mathernes followed ISSUES PRESENTED The Mathernes assign legal error by the trial court in awarding damages to the Boudreauxes under a theory of redhibition for the driveway and walkway when the NHWA provides the exclusive damages theories for purchasers of new homes and specifically excludes driveways and walkways The Mathernes also assign error to the trial court award of damages to the Boudreauxes under the NHWA arguing that the s Boudreauxes failed to present evidence of the building standards or noncompliance with same Finally the Mathernes argue that the trial court erred in applying the NHWA because the Boudreauxes failed to provide the Mathernes with prompt notice of the alleged defects and did not allow them an opportunity to make repairs DISCUSSION The trial court factual findings in cases involving the NHWA are subject to s manifest error review Hutcherson v Harvey Smith Const Inc 20081046 p 3 La App 1 Cir 2 7 So 775 778 An appellate court cannot set aside the 09 13 3d trial court factual findings unless it determines there is no reasonable factual basis for s the findings and the findings are clearly wrong Stobart v State through Dept of Transp and Development 617 So 880 882 La 1993 Thus if the findings are 2d reasonable in light of the record reviewed in its entirety this court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Rosell v ESCO 549 So 840 844 La 1989 2d With regard to questions of law the appellate review is simply a review of whether the trial court was legally correct or legally incorrect On legal issues the appellate court gives no special weight to the findings of the trial court but exercises its constitutional duty to review questions of law and render judgment on the record Pierce v State Office of Legislative Auditor 20070230 p 7 La App 1 Cir 2 984 So 08 8 2d 61 67 writ denied 20080542 La 4 978 So 369 08 25 2d 3 In ruling in favor of the Boudreauxes the trial court issued the following reasons for judgment I will try to keep the reasons for judgment as short as possible but we are also dealing with the claim for redhibition on the concrete and the the driveway and the sidewalk The Court is going to find to say that s it I think that was the biggest problem I had was the sidewalk and the driveway as far as conditions that definitely needed to be repaired I t didn hear much testimony exactly on who built it how it was built how big it was The Court did note from Mr Stein testimony or from his s reports that there weren any expansion joints placed in there and there t was splitting in the driveway From what I could see from the pictures there weren any and you know his testimony was it wasn going to last t t another five years And that is definitely I didn hear anything to rebut t that to say otherwise so definitely the Court is going to hold that the driveway and the sidewalk need to be replaced replaced and removed As far as the tile goes I think there is no reason the the should be cracking There is a number of cracks now even though they are very hard to see for some reason they are cracking whether it is a problem award The Court is going to 00 000 7 for the tile work That should include 7 for the tile 00 000 with the moisture or whatever the sealing of the entire floor because even though these cracks whether there is moisture using better judgment would be to have the whole Mr Chauvin has stated that his quote included sealing the entire floor I am going to include in that with the floor sealed And I think 00 000 s 7 a plumber fee I couldn figure a breakdown on exactly what t he had to do but it seems like certain things have to be removed I am not certain the tub needs to be removed but I think he had that in his quote but I think 00 800 1 would be a fair amount for the plumber to remove whatever they have to remove so that the tile can be placed down The brick ledges and the brick work the Court is going to award nothing for the brick work per se As far as the slanting of the wall or the weep holes I am going to award some general damages there but for the brick ledges I think it would be foolish to tear down the entire walls of these brick walls and replace the bricks I think those ledges can be reworked I am going to award 1 to rework the brick ledges or 00 000 either rework the brick ledges or do the sealing of the windows The driveway and the sidewalk the only figure I had in there was from Mr Pitre for 21 and of course I am going to award that 10 284 All of the remainder complaints the general repairs the Court finds that they are general repairs the fixing of the doors the caulking of the various areas in the house dealing with the molding the Court is going to award 1 00 500 The Court is going to award the plaintiff attorney fees of 7 00 500 expert fees of 500 00 The total award will be 40 10 584 M And the Court notes that under the Graff case Graf v Jim Walter Homes Inc 19971143 La App 1 Cir 5 713 So 98 15 2d 6821 the case said when a contractor breaches an implied warranty of good workmanship in a building contract damages are awarded to place the purchaser in a position he deserved to be in when the building was completed I think with the exception of the tiles and the cement driveway the figures I gave would place the plaintiff back in that position The biggest concern I had was with the driveway and sidewalks which seemed to be defective And the only testimony I heard was that their life span would be five years and the Court would find that I sure m if any purchaser and especially the purchasers here would have known been told that I am selling you this house with a driveway that will last five years they would have never purchased the house They said it was redhibitory vice and the Court will grant those damages for that amount After a thorough review of the evidence in this case we agree with the essential factual findings provided in the trial court reasons for judgment s With regard to the Mathernes allegation that there was insufficient evidence of noncompliance with building standards to support the Boudreauxes NHWA claim we are convinced that the findings of the trial court concerning the defects in the property are reasonable in light of the record in its entirety Moreover regarding the Mathernes claims concerning the lack of prompt notice by the Boudreauxes to the Mathernes of the alleged defects we have considered the evidence and find that the record reasonably supports a finding that the Mathernes received the required notice pursuant to La R 9 and were given an opportunity to S 3145 make repairs Finally we find no merit to the Mathernes claim that the Boudreauxes have no cause of action for the alleged defects to the driveway or the walkway because the NHWA provides the exclusive damages theory for purchasers of new homes and specifically excludes all driveways and walkways We acknowledge that absent a written agreement to the contrary recovery for any defects in the driveway or walkway would not be available to the Boudreauxes under the NHWA pursuant to La R S 1 Louisiana Revised Statutes 9 provides as follows A 3145 A Before undertaking any repair himself or instituting any action for breach of warranty the owner shall give the builder written notice by registered or certified mail within one year after knowledge of the defect advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter 5 3144 9 Moreover we are well aware of the exclusivity of the NHWA as it pertains to builders and owners relative to home construction However because driveways and walkways have been carved out of the NHWA this exclusivity provision cannot operate to deny the Boudreauxes their rights under redhibition for the defects in the driveway and sidewalk DECREE For the above and foregoing reasons we affirm the judgment of the trial court All costs associated with this appeal are assessed against defendantsappellants Blake G Matherne and Sandra Deroche Matherne We issue this memorandum opinion in accordance with Uniform RulesCourts of Appeal Rule 2 16 1B AFFIRMED 2 Louisiana Revised Statutes 9 provides in pertinent part as follows 3144 B Unless the parties otherwise agree in writing the builder warranty shall s exclude the following items 1 Fences landscaping including but not limited to sodding seeding shrubs existing and new trees and plantings as well as offsite improvements all driveways and walkways or any other improvement not a part of the home itself 3 Louisiana Revised Statutes 9 provides as follows 3150 This Chapter 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 6
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