Robert A. Barnett, Lisa Z. Barnett Individually and As The Parents of the Minors William A. Barnett, Zachary J. Barnett and Christopher Barnett VS Candace Watkins, Ashland Homes , Inc., Gregory G. Gordon, Locus Architects, Matthew C. Voelkel, Cornelius G. Van Dalen, Jr., Zurich Insurance Company, ABC through PQR Insurance Companies , Fireman's Fund Insurance Company, V2 Studios, Inc., Continental I
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2006 CA 2442 ROBERT A BARNETT ET AL VERSUS CANDACE WATKINS ET AL Judgment Rendered September 19 Appealed 2007 from the 22nd Judicial District Court In and for the Parish of St Tammany Louisiana Case No 2005 13238 The Honorable William J Burris Judge Presiding Robert A Barnett Counsel for Plaintiffs New Orleans Louisiana Robert A Barnett and Lisa Z Appellants Barnett William Christopher Beary R Ray Orrill Jr Angel L Byrum New Orleans Louisiana Peyton B Burkhalter Metairie Louisiana Dennis H Carriere Metairie Glen E Louisiana Mercer Kourtney Twenhafel French New Orleans Louisiana Counsel for Defendant Assurance Company Appellee of America Richard s Vale Counsel for Defendants K Lemieux Christopher Pamela F Noya Ashland Watkins Homes and Appellees Inc Candace Gregory Gordon Metairie Louisiana Deborah Cunningham Jon A Van Steen is Louisiana Thomas L Gaudry Voight Gretna Louisiana Counsel for Defendants Candace Watkins Covington William H Foshee Jr Appellees Inc and Trevor Watkins Counsel for Defendants Gregory C Appellees Inc Lynn G Gregory Gordon Arnold Gordon and Gordon BEFORE GAIDRY McDONALD AND McCLENDON JJ 2 GAIDRY J This is not all an of the their general Act La of a partial summary judgment dismissing but some plaintiff homeowners claims against the liability insurer of based upon contractor R S and related appeal 9 3141 damages finding a that the New Home Warranty barred the assertion of the dismissed claims et seq We affirm FACTS AND PROCEDURAL HISTORY The plaintiffs Robeli A Barnett and Lisa Z Barnett wife and the parents of three minor children retained Locus A Louisiana Partnership are husband and Sometime in 1996 Locus to plaintiffs provide professional design and construction administration services for the construction of a new residence in Covington Louisiana partners acted August 28 the as 1996 Plaintiffs I Ashland its or written construction general the construction accepted residence principals as a The stated constluction their written acceptance occupied the one of Locus primary designer for the construction project plaintiffs entered into Ashland Homes Inc of their residence Matthew C Voelkel on alleged was price was project on 1 with 438 428 00 August Ashland supposedly successors or 1997 On for the construction filed for recordation the September additional construction items contractor contract s 29 same 1997 and day They or one or more undertook to of complete punch list items through the spring of 1998 According to their in November 2004 including resulting in toxic mold growth 1 discovered defects in their home petition plaintiffs severe water Plaintiffs Plaintiffs have leakage and moisture retention allege that on May 8 2005 they alleged that Ashland was incorporated by two principals Candace B Watkins its president and Gregory G Gordon also named as defendants individually Those defendants were dismissed by a separate summary judgment of July 6 2006 which is the subject of another appeal in this cOlui bearing Docket No 2006 CA 2315 3 sent written notice Ashland Locus of the defects and their claims by certified and other defendants involved in the Voelkel mail to design and construction Plaintiffs instituted this and other defendants litigation against Ashland including various seeking damages for themselves petition contained paragraphs of the legal basis for 2769 and 224 numbered recovery of petition denying subsequently for their children July 13 2005 original In the title and in paragraphs Their multiple other damages in addition any liability amended their on to La Assurance statutes alleged liability as and on Voelkel petition plaintiffs specifically invoked the NHWA various Assurance insurers liability Locus petition allegations of wrongful conduct part or the on of America answered plaintiffs the part of its insureds twice a 2315 and arts Company insurer of Ashland its C C as Plaintiffs additional defendants and adding part of original and newly added defendants On April 7 2006 Assurance filed motion for summary a seeking the dismissal of all claims by plaintiffs structural defects NHWA is under La RS 9 3144 A filed a memorandum in attached exhibits 22 2006 court took On other than those for 3 on the plaintiffs exclusive remedy and excludes most consequential damages alleged by plaintiffs along the Assurance s Assurance with a 31 motion in this s to the motion motion was heard matter 2006 a plaintiffs number of the trial comi After the hearing on June the trial advisement 2006 and of the elements of together with by major that the grounds On June 14 number of other motions matter under August Assurance opposition judgment the trial comi dismissing signed all claims judgment granting by plaintiff It also issued written 4 its reasons for sic against judgment in which it characterized the motion Assurance that not are as seeking under the NHWA other than defects that fall under the Act and ten year September 14 2006 the trial court correcting its original judgment to On all claims dismissed the NHWA comi On joint all claims under that Act warranty provisions of the signed an amended judgment provide that in granting the motion it sic appealed assigning Assurance that against as error the trial of material fact based upon the subsequently dismissed for against are not under in this matter Plaintiffs genuine issue by plaintiff all claims dismiss to issued a rule noncompliance motion of again amended on of the plaintiffs Febluary for purposes of appeal there show to pleadings cause judgment 2007 being failure the amended for court to art find to and evidence with La C C P by the trial no reason s why the appeal should and Assurance 15 comi 2 This not be 1915 B judgment certify a it as was final delay PROPRIETY OF APPEAL The judgment appealed dismisses recovery asselied by plaintiffs against only insurer of Ashland the defendant the duty to paliies do examine not 00 1058 p 3 we to 2 must subject App general matter raise the issue La some 12 9 first consider whether this 01 v theories of or party defendant the liability contractor jurisdiction McGehee 1st Cir one of the claims sua Appellate sponte even City Parish of East 809 So 2d 258 partial judgment is comis when the Baton 260 have Rouge Accordingly properly appealable confirm the basis of our jurisdiction Plaintiffs also contend in their discretion but fail to action in that somehow assignments of error that the trial court abused its adequately address in their brief the nature of the trial court s the basis for their contention that that standard of review is regard or applicable Accordingly we consider that Uniform Rules of Louisiana Courts of Appeal Rule 2 5 assignment 4 12 of elTor as abandoned Louisiana Code of Civil Procedure article 1915 B when renders a court a partial summary judgment than all of the claims demands issues that is judgment designated that there is as a no final just Messinger Inc for reason undesirability v at a This delay of presented in an provision serves 04 1664 Messinger designation of finality by explicit reasons in order for delay C C P mi ideally should 1664 at p La or certification need 3 2 05 not include an 1915 B a parties 894 So 2d appeal to be However provide such taken from the court reasons a we are proper RJ Motorola Inc v as well final to required Messinger accompanied just no emphasized that so for reason partial judgment and if it does s judgment provided determine de under La the trial court the standard of review RJ Corp 867 So 2d 723 nor novo 04 Messinger the other making the determination non 13 14 for reasons 894 So 2d 732 In of whether certification is such at 1122 Motorola 11 02 1351 16 p conducting this review exclusive criteria trial 6 subsequent order whether the certification ovelTiding inquiry of whether there as its explicit 04 1664 at pp Associated Indemnity 1st Cir 10 22 03 consider the as be required 13 894 So 2d at 1122 certification App nor for the determination that there is certifying the judgment delay strike and the need for the Louisiana supreme court held that the Because neither the trial cOUli we to attempts of its celiification is whether it abused its discretion La unless it appeal 1122 In R J was action an the needs of the 13 p but less express determination piecemeal appeals time that best Rosenblum one or more immediate an judgment by the court after making review available 1113 theories is not final for the purpose of balance between the RJ or to as 1 provides that is no just reason courts should appropriate for use in 1 The relationship between the adjudicated and the unadjudicated claims 2 The possibility not be mooted might 3 obliged The by possibility that the reviewing consider the to 4 that the need for review might or future developments in the trial court issue same a might be court second time and Miscellaneous factors such as economic and delay solvency considerations shortening the time of trial frivolity competing claims expense and the like RJ Messinger Although on we the claims being based not dependent related Cf court s upon the of the judgment presents upon are same the finality non mooted of the NHWA given Inc claims this comi being obliged the to litigation of the In short pmiies to Diez unadjudicated resolution nor 06 0323 p only the as possibility of the the nature as NHWA 6 inextricably La 1st App issue s Assurance against Ashland to consider this again review of the See R J Messinger judgment is of ilTelevant judgment dismisses and those claims at best 13 this stage of the serves 894 testimony 2d So the needs at 1122 and evidence impermissible theories of recovery and unrecoverable elements 7 of clearly outweighed by now 04 1664 at p and practical possibility any parties of resolution of the issue our need for review at procedural significance the trial court against Additionally the possible elimination relating the common v ruling Although technically remain pending importance to adjudicated 951 So 2d 270 273 74 point being relative question operative facts but those different claims There does not appear to be any this close The appropriate was related upon each other for Graphics a consideration of all relevant factors our certification certainly Gold Dust 12 28 06 13 14 894 So 2d at 1122 nature procedural issue based NHWA claims Cir the limited find that the trial non are 04 1664 at pp of of claimed damages against some defendants this action involving circumstances numerous conclude that we foregoing certainly expedite party defendants in delay a determination of all issues would be Based upon the will the trial of all Considering the appellate review until final unjust considerations we maintain this appeal STANDARD OF REVIEW The judgment from which this appeal is taken is and therefore judgment judgment was Motorola 828 subject appropriate IIIJ 02 0716 to de Motorola 5 p La as partial 1st Cir 6 25 04 04 2326 04 2327 summary whether smmnary to Associated Indemnity v App writs denied 04 2314 04 2323 review novo a Corporation 878 So 2d 824 La 11 19 04 888 So 2d 207 211 212 DISCUSSION Summary Judgment The summary judgment is designed to secure the just domestic civil actions if the appropriate La procedure is expressly favored in the law speedy C C P pleadings and inexpensive determination 966 art A2 depositions to material law fact and that the answers is entitled mover non Summary judgment to is interrogatories to admissions and affidavits in the record show that there is as of and genuine issue no judgment as a matter of La C C P art 966 B The judgment burden of mover has the burden of See La proof at C CP trial on demonstrate the absence elements of his opponent 966 C 2 If the proof that he is entitled to summary mi 966 C 2 the subject matter of of factual s If the action moving party points 8 out or will not bear the the motion support for claim mover one defense that there is an or he need more La only essential C C P mi absence of factual support for action If the or more elements essential defense then the or sufficient one to mover the adverse nonmoving party satisfy his evidentiary burden has put forth on the pleading but his response by affidavits facts showing that there is In ruling evaluate the on a weight the v a genuine mere or of the evidence legislative mandate that 1049 s allegations otherwise or to Willis v legal character find that brief that issue forth specific summary role is s 876 So 2d 764 judgments matter issue of triable fact genuine a not to are now 765 favored Despite factual the evidence must be construed in favor must be resolved in the Medders 00 2507 p 2 La 12 8 00 775 So 2d 1050 material fact to denials of his must set Here however the determination of the motion the or C 2 otherwise or determine the truth of the opposing the motion and all doubt favor art 966 issue for trial La C C P art 967 B La 6 25 04 reasonably drawn from of the pmiy opponent 1 claim s produce factual support motion for summary judgment the judge Garrett 04 0806 p inferences must trial La C C P at but instead to detennine whether there is Hines the adverse party supporting proof through affidavits not rest party may to as a of the claims pleaded rather than Although plaintiffs depends upon any more dispute contend that the trial court erred in upon as to failing genuine issue of material fact exists they also concede in their t he facts whether or not 1998 discovered in 2005 in not generally the are undisputed are dispute non precluded from and frame the central structural defects of 1997 recovery by virtue of the NHWA The New Home The NHWA was Warranty Act originally enacted in respects in 1997 1999 2001 and 2003 9 As 1986 and amended in various plaintiffs occupied their home on 1 September controls and 1997 the later amendments Statutes 9 3141 as of the NHWA in effect verSIOn then written inapplicable are expressed the 3 NHWA that date on Louisiana Revised s purpose The Legislature finds a need to promote commerce in Louisiana by providing clear concise and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of home owners insurance as additional protection for the public against defects in the construction of new homes This need can be met by providing for unifonn building standards in those parishes and municipalities that have not yet adopted building codes by requiring that all new residential buildings comply with building standards by adopting provisions that clearly state the scope and the time of wananties by providing for insurance protecting home owners from breaches of warranty and by making the required warranties mandatory in most cases To effectuate that purpose warranties to and prescriptive periods home construction and and vices and redhibitory no as provides the exclusive remedies between builder and other provisions of law relative defects shall apply La R S owner relative to warranties 9 3150 Emphasis 4 supplied The NHWA cannot the NHWA be waived 9 3144 C As minimum s by the applicable required warranties owner to or reduced the builder by this action La R S mandatory and are 9 3144 A La sets out R S those warranties 3 If the NHWA affords first to an owner defined as such remedy comes the date that legal into existence title to a on the home is to its initial purchaser or the date the home is first occupied whichever occurs 7 3143 Ifthe NHWA applies its mandatory provisions determine the elements of the owner s cause of action and remedy rather than the building The warranty commencement date seems to be the operative date for La R S 9 essential contract detelmining See remedy commencement date warranty conveyed a e g which version of the NHW A Carter v implicitly recognizing amendment to La R S September 1 applies rather than the date of the contract Duhe 05 0390 p 10 n 9 La 1 19 06 921 2d So 963 that the time of the sale determined whether a 3145 applied The WalTanty 970 August 15 1997 9 statutory commencement date here 1997 Therefore the 1997 amendments effective n was apply to this action 4 By Acts 2001 No 179 S 1 the NHWA s prescriptive periods in La RS 9 3146 were changed to peremptive periods See also Acts 2003 No 333 SI an1ending La RS 9 3150 10 A Subject to the exclusions every builder wanants the 1 date following to the R S 9 3144 B owner One year following the wananty commencement home will be free from any defect due to the noncompliance with 2 provided in the Two years standards building following the wananty commencement date the plumbing electrical heating cooling and ventilating systems exclusive of any appliance fixture and equipment will be free from any defect due standards 3 Ten years to with the noncompliance building the wananty commencement date the home will be free from major structural defects due to 5 noncompliance with the building standards Unless minimum shrubs damage the parties otherwise required trees and caused by wananties plantings the his agents employees the owner s failure to the owner has failed physical damage property c any s damages respect Inc fault of subcontractors b odily injury can fees and defects in the home shall La R S 04 1500 p 6 La 9 3149 A App or or any court costs not exceed the Thibodeaux 1st Cir 12 22 05 5 v damage due to drainage damage which If recover landscaping the home itself other a resulting damage to relocation 9 3144 B three other than the builder any condition not La R S owner or above fences as parties dampness incidental expense related including attorney of the home or timely mitigate the the writing improvements separate from the home wananties to all in maintain proper ventilation to to or agree exclude such items negligence onsequential damages NHWA following in to actual personal during repair and builder breaches the non excluded but damages actual with original purchase price Arthur Rutenberg Homes 928 So 2d 80 85 Building standards are defined as those applicable standards adopted by the local political subdivision and in effect when construction begins or absent such standards the Standard Building Code together with any additional perfonnance standards if any which the builder may undertake to be in compliance La R S 9 3143 2 11 Because the NHWA not prohibit warranties assume builder from a to provides the of owner greater obligations agreeing a new Id to increase home Thus owner would the builder may agree in to by the NHWA contract assume As Assurance nor warranties 9 3l44 B correctly points proven in either their construction RS beyond those contract at provisions or provisions brief to this court that the incorporating afforded under the NHWA issue contains the or R S waiving additional any of the 9 3l44 B Contractor agrees and does hereby covenant and agree Owners to erect and finish in accordance with the set forth the entire work described in the Contract and attached documents plans letters specifications and addendum and to deliver to Owners liens improvements on free from all claims the propeliy or Contractor it shall pursue the work with diligence and in a professional and worlananlike manner handle the job warrants efficiently properly supervise and direct all labor and use its best efforts and attention to safeguard and protect Owners interest at all times Contractor warrants it has visited the site and is familiar with the local conditions under which the work is to be performed by it Emphasis supplied 12 The following language pertinent I conditions hereinafter be minimum s this issue with or plaintiffs have neither contended relevant items excluded from warranty under La constluction separate Id pleadings affidavits contained contract out a obligations responsible for items otherwise excluded from the NHWA required warranties under La his contractually presumably have specific writing it does rather than reduce builder may a of action based upon the breach of those Similarly required warranties warranties than those afforded or and under those circumstances the cause minimum to II Contractor the plans conflicts Letters it has reviewed and warrants addendum and compared specifications and found no with the exception of those noted in the Letters the exclusion of any driveways However if any including other variances or conflicts are discovered Contractor shall immediately notify shall be responsible Owners and their Architect to correct any work not done Contractor in accordance with the aforesaid documents Contractor shall from and indemnify and against claims damages hold Owners harmless losses and expenses whatsoever arising from the performance of the work under this Contract by Contractor or anyone directly or indirectly employed by Contractor or for whose acts Contractor may be liable Contractor ordinances and shall regulations construction and work all reasonable comply with all applicable laws with public authorities dealing or pursuant to this contract and shall take safety precautions whatsoever XII Contractor agrees to protect and shrubbery and any other related living construction site and is reasonably possible under the circumstances With the constitute language by the safeguard plants trees foliage in and near the approaching roadway to the home site as a possible exception waiver of the exclusion does not add NHWA additional undertake building of the last The additional or relating be in standards 9 3143 2 to landscaping which the might foregoing greater warranties than those afforded emphasized language arguably might constitute performance standards to paragraph above compliance with which the builder may but any such standards fall within the to which the NHWA Similarly the language does mandatory statutory exclusion relating injury damages consequential damages by plaintiffs 13 requires compliance not to reflect the intent to La waive any the various elements of and R S bodily nonpecuniary damages sought Plaintiffs primary argument against the exclusivity of the their action is that Ashland failed abandoned the 32 310 was La price job before it to was court completed was claim in addition The to upon Thorn the home case to return to contractor the asserted owners a abandoned the breach of claim for breach of the NHWA wananties a Caskey v work until the final amount of the found that the The In that refused contractor perform additional paid construction contract and 745 So 2d 653 but the complete construction site complete the regard they rely 2nd Cir 9 2 99 App 90 to 95 contract In that project to NHWA to contract The court held The NHWA designed to protect the owner from but not to insure completion of the was faulty workmanship construction of the a home under the tenns of the contract between and builder Accordingly find that where the builder abandons construction of the home and fails to fulfill his obligations under the contract he may be found liable in an owner we action for breach of contract however he may also be liable for breach of the wananties outlined in the NHWA Our finding that the becomes one at trial Id 32 310 breach of owners are at pp significant 6 7 745 that Ashland and its 1997 detennining 2d So construction that their house s was substantially completed when La t he RS owner La RS the construction was Plaintiffs proven on or 9 4801 about et or acceptance project contend in 1997 or about completed under accepted constructed and when the last work is performed accepts the improvement 9 4822 H valid Although plaintiffs and that principals they two Under the Private Works Act damages a theory project and commenced occupancy of their house 6 in fact at 658 principals abandoned the direction of Ashland was which clearly distinguishable they also allege that the 26 claim recoverable and under what We find Thorn August in contract on took September possession 1 1997 6 a work is considered seq on the il11l11ovable propeliy or possesses or occupies the il11l11ovable of the constmction project and their occupancy of their house are material because the date of recordation of the owner s acceptance of the work or the date of occupancy establishes the COl11l11encement of the deadline for filing of contractors privileges See La R S 9 4822 B C Those events 14 Plaintiffs written acceptance dated August 29 2007 accepted their residence in full compliance with the and Ashland project was not were Ashland Although plaintiffs not finished items App certainly 4th Cir cannot the NHWA not minor are C S 19 3 See La R S inconsequential or Watkins one matters in the work Inc that SSEM Corp v 843 So 2d 447 452 1998 that remain are to be of to be remedied 02 1780 pp 7 8 Thus such minor items major structural defects within the meaning of 9 3143 5 and 9 3144 A 3 They likewise definition of redhibitory defects would See La C C art 7 Ashland Assurance its s us principals policy issued have contents does them under the terms of that policy issued by its to Ashland has been established As the not not contain any or Although successors of proof at trial Thus it policy establish factual suppOli that Assurance s was Assurance the existence of parties claiming the benefit plaintiffs would bear the burden to appeal that the construction complete those items through to Safety Sys constitute The record before to between them contract and that Candace B or elTors 03 to fall within the seem 2520 attempted minor defects or La R S 9 4822 H La finalized or principals Punch list on plaintiffs completed their petition alleges that only punch list items completed s contend that states its precise of that policy that Assurance is liable incumbent upon policy to plaintiffs somehow affords them greater rights than they might have against its insureds The written insurance regard Johnston policy is v an essential element of evidence in that Broussard 477 41 p 4 La also detennine the commencement of the against a contractor for breach of a App 2nd Cir peremptive period for 9 20 06 an action See 940 So 2d by the owner contract under the Private Works Act building La R S 9 2772 7 The Civil Code articles new home governed by on redhibition do not apply to hidden defects discovered in the NHW A La C C art 2520 Revision COlmnents 15 1993 e a 79 Although plaintiffs claim not a be able to builder authority no s as Ashland s insurer hide behind the NHWA and that the NHWA in favor of the insurance company not runs they should in favor of offer legal no factual support for their novel contention that the scope of or liability insurer insured that Assurance s liability liability for a to a third party extends particular loss beyond the a scope of its Their contention has or occurrence merit In its reasons for judgment the trial court observed Company of America contends the NHWA is the exclusive remedy available to plaintiffs Plaintiffs have asserted a laundry list of claims but they all arise from the alleged faulty and defective construction of the home It is clear to the Court that this Act is an exclusive remedy and that Assurance all other theories of recovery excluded Citation omitted around the exclusivity by crafting recovery Seeking get claims through other theories as done by plaintiffs in this case does not do away with the exclusivity of the remedy are to Whether the Comi agrees the NHWA was a fair tradeoff between the construction industry and homeowners cannot enter into the Comi s ruling It is clear that exclusivity is the tradeoff the legislature accepted and the Court must apply it despite temptations to judicially ameliorate its effect by latching onto one or more of a laundry list of claims that all relate to alleged faulty and defective construction We presented with the trial agree court Despite plaintiffs detailed succinct s and frequently repetitive pleading factual contentions and theories of recovery alleged successors coalesce into and Assurance claims construction defects in 10 La 1 19 06 exclusive between a new builder a 970 remedy against Ashland of America Inc its and an See Carter v owner of principals essentially relative to Duhe 05 0390 p Thus the NHWA is clearly plaintiffs and any other defendant builder See also Thibodeaux 04 1500 at pp Shell Homes against Ashland all of those various claims residence 921 So 2d 963 analysis of the issue 6 7 33 390 16 pp 928 So 2d at 85 2 3 La App Sowers 2nd Cir v 15 5 Id Dixie 00 762 So 2d 186 188 89 writ denied 00 1770 By the NHWA is also extension Assurance as the La 9 22 00 exclusive plaintiffs liability insurer of Ashland sought summary 768 So 2d 1286 remedy against See La R S 9 3147 and La R S 22 655 Assurance claims against it other than those for the structural defects reasons seems judgment sic The judgment dismissing all of plaintiffs as to under La have R S agreed 9 3144 A to are not any claims under the R S 9 3144 A 1 and 2 one under the must warranty for and the trial grant that relief judgment s language necessarily to court in its However the actual all claims by plaintiff NHWA in this control major so matter the issue of the year and two year warranties of La remains to be decided The judgment of the trial assessed 3 amended limits the dismissed claims against Assurance that viability of ten year against the plaintiffs court is affirmed All costs of the appeal Robert A Barnett and Lisa Z Barnett AFFIRMED 17 are
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