TERRI BARRACK, WIFE OF/AND DR. ROBERT BARRACK Vs. J.F. DAY & COMPANY, INC., D/B/A PELLA WINDOWS & DOORS, PELLA CORPORATION, CHARLOTTE SPENCER SMITH AND SPENCERSMITH, A PROFESSIONAL CORPORATION, F/K/A SPENCERSMITH, INC.
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TERRI BARRACK, WIFE OF/AND DR. ROBERT BARRACK * NO. 2007-CA-0097 * COURT OF APPEAL VERSUS * FOURTH CIRCUIT J.F. DAY & COMPANY, INC., D/B/A PELLA WINDOWS & DOORS, PELLA CORPORATION, CHARLOTTE SPENCER SMITH AND SPENCERSMITH, A PROFESSIONAL CORPORATION, F/K/A SPENCERSMITH, INC. * STATE OF LOUISIANA * * ******* MURRAY, J., CONCURS AND ASSIGNS REASONS The issue in this case, which appears to be res nova, is whether actual notice to the builder within the time limits set forth in La. R.S. 9:3145 (as opposed to written notice by registered or certified mail) is sufficient to maintain a cause of action under the NHWA. I agree with the majority that Carter v. Duhe, 05-0390 (La. 01/19/06), 921 So.2d 963, upon which the trial court relied, is distinguishable. The issue in Carter was whether the builder could invoke the protections of the NHWA despite his having failed to comply with a separate requirement of R.S. 9:3145, which is that the builder give the homeowner written notice of the provisions of the NHWA at the time of closing. The Supreme Court in Carter decided that the builder was protected by the statute despite his failure to strictly comply with this notice requirement. Although the issue in Carter is not the same as that presented in the instant case, I find the Supreme Court’s approach to that decision and its interpretation of the statute to be instructional. If the builder does not forfeit the protections of the NHWA by failing to comply with the notice requirement, neither should the homeowner forfeit his rights under the statute by failing to strictly comply with R.S. 9:3145’s express stipulation as to the form of notice, especially where actual notice within the proper time limits is undisputed. In the instant case, I find that actual notice to the defendant/builder clearly complies with the spirit and purpose of the statute. Accordingly, I respectfully concur in the majority’s reversal of the trial court’s granting of summary judgment.
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