Stephen W. Binning and Kristen Binning VS Jerry Boudinot Construction, L.L.C., All State Plastering, Inc., Penn America Insurance Company and XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1091 STEPHEN W BINNING AND KRISTEN BINNING WNIX1 310 JERRY BOUDINOT CONSTRUCTION L ALL STATE C PLASTERING INC PENN AMERICA INSURANCE COMPANY AND XYZ INSURANCE COMPANY DATE OF JUDGMENT DEC 2 1 2011 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 593 SEC 23 PARISH OF EAST BATON ROUGE 235 STATE OF LOUISIANA HONORABLE WILLIAM A MORVANT JUDGE Deborah Berthelot Baton Rouge Louisiana Nancy A Richeaux Sharon B Kyle Counsel for Plaintiffs Appellants Steven W and Kristen Binning Counsel for Defendant Appellant Jerry Boudinot Contruction L C Nicholas R Dunham Baton Rouge Louisiana EMMMMI3 BEFORE WHIPPLE KUHN AND GUIDRY JJ Disposition AFFIRMED KUHN J Plaintiffs appellants Stephen W and Kristen Binning appeal the trial court s judgment which sustained a peremptory exception raising the objection of peremption asserted by defendantappellee Jerry Boudinot Construction LLC Boudinot Construction and dismissed the Binnings claims against the home builder under the New Home Warranty Act NHWA We affirm Nearly five years after Boudinot Construction built the Binnings home in the Wayside Subdivision in East Baton Rouge Parish they discovered several soft rotten sections in the exterior walls of their home apparently caused by moisture trapped under the stucco that allegedly had not been sealed properly An estimate of repair to the stucco was over 65 The Binnings aver that after further 000 investigation the home showed systematic stucco failure On August 4 2010 the Binnings filed this lawsuit naming Boudinot Construction among others as a defendant Boudinot Construction filed an exception of peremption that the trial court sustained The Binnings appeal the judgment that the trial court subsequently signed which dismissed their claims against Boudinot Construction The NHWA provides the exclusive remedies warranties and peremptive periods as between a builder and an owner relative to home construction and no other provisions of the law relative to warranties and redhibitory vices and defects apply La R 9 S 3150 Thus Louisiana courts have consistently recognized the sexclusive application to claims between a builder and an owner relative to NHWA construction defects in a new residence Carter v Duhe 2005 0390 La 1 06 19 921 So 963 970 2d 2 Every builder warrants to the owner that one year following the warranty commencement date the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building and standards five years following the warranty commencement date the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards La R 9 S 3144A 1 3 An action to enforce any warranty provided under the NHWA is subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in S 3144 R 9 La R 9 S 3146 Under the NHWA an owner remedy for s construction defects in a new residence comes into existence on the warranty commencement date which is defined as the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied whichever occurs first See La R 9 S 3143 7 The parties stipulated that the Binnings moved into their new home in October 2004 Thus to the extent that moisture trapped under the improperly sealed stucco constitutes a defect in materials or workmanship the Binnings claims against Boudinot Construction are clearly perempted under the NHWA as more than thirty days and one year has elapsed since the warranty La R 93144A S 3146 1 commencement date See 7 3143 The record does not bear out whether the defects in the stucco alleged to have been systematic were major structural defects sufficient to fall within the 3 ambit ofthe fiveyear warranty provided under La R 9 But assuming S 3144A 3 arguendo that they were as the trial court did we likewise conclude that under the plain language of the NHWA the Binnings claims against Boudinot Construction are perempted having been asserted more than thirty days and five years after the warranty commencement date See La R 9 3144A and 3143 see also S 3146 3 7 Barnett v Watkins 2006 2442 La App lst Cir 9 970 So 1028 1034 07 19 2d 3 n writ denied 2007 2066 La 2d 14107 12 970 So 537 the warranty commencement date is the operative date for determining which version of the NHWA applies DECREE For these reasons the trial court judgment sustaining the builder exception s s of peremption and dismissing the Binnings 1 claims against Jerry Boudinot Under La R 9 S 3143 5major structural defects are defined as ny A actual physical damage to the following designated load bearing portions of a home caused by failure of the loadbearing portions which affects their load bearing functions to the extent the home becomes unsafe unsanitary or is otherwise unlivable a Foundation systems and footings b Beams c Girders d Lintels e Columns f Walls and partitions g Floor systems h Roof framing systems 4 Construction is affirmed Appeal costs are assessed against Stephen W and Kristen Binning AFFIRMED z Although in their appellate brief the Binnings make assertions about the constitutionality of the time limitation of La R 9 S 3144A 3which by La Acts 2004 No 45 1 reduced the warranty period from seven to five years they neither pleaded with particularity nor asserted the issue before the trial court Thus it is not properly before this court on appeal See Istre V Meche 20001316 La 10 770 So 776 779 00 17 2d 5
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