Ciliberti v. Mistretta

879 So. 2d 789, 2004 WL 1078308
CourtLouisiana Court of Appeal
DecidedMay 14, 2004
Docket2003 CA 1559
StatusPublished
Cited by2 cases

This text of 879 So. 2d 789 (Ciliberti v. Mistretta) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ciliberti v. Mistretta, 879 So. 2d 789, 2004 WL 1078308 (La. Ct. App. 2004).

Opinion

879 So.2d 789 (2004)

Louis CILIBERTI, Jr. & Patricia Ciliberti
v.
Eric MISTRETTA and Nicole Mistretta.

No. 2003 CA 1559.

Court of Appeal of Louisiana, First Circuit.

May 14, 2004.

*790 Wade Petite, Gonzales, Counsel for Plaintiffs/Appellees, Louis Ciliberti, Jr. and Patricia Ciliberti.

Andre' Bourgeois, Molly McGraw, Baton Rouge, Counsel for Defendants/Appellants, Eric Mistretta and Nicole Mistretta.

Kevin Landreneau, Baton Rouge, Counsel for Third Party Defendant/Appellee, Bestbuilt Homes.

Before: WHIPPLE, KUHN, and MCDONALD, JJ.

WHIPPLE, J.

This matter is before us on appeal by defendants/third-party plaintiffs, Eric and Nicole Mistretta, from a judgment of the trial court maintaining an exception of prescription filed by Bestbuilt Homes, Inc. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 7, 2003, plaintiffs, Louis and Patricia Ciliberti, filed a "Petition for Rescission of Sale and for Damages" seeking to rescind a cash sale entered into on July 19, 2002 with the Mistrettas, who were "sellers" of a certain lot of immovable property and residential structure thereon. In the petition, plaintiffs contended that a sewerage blockage created a situation that led to "a severe and nauseating presence of sewerage gases being present at all times within the residence and upon the immovable on which the residence sits." Plaintiffs contended that the sewerage blockage and resulting problems constituted a redhibitory defect, and that plaintiffs would never have entered into the contract of sale had they known of the defect. Plaintiffs prayed that the July 19, 2002 sale be rescinded, that the purchase price be returned to them, and that damages and attorneys fees be awarded.

*791 On March 6, 2003, the Mistrettas filed an Answer and Third-Party Demand naming as third-party defendant Bestbuilt Homes, Inc. ("Bestbuilt"), the manufacturer/builder of the home. The Mistrettas claimed that they had purchased the home directly from Bestbuilt, and had experienced one plumbing-related incident involving the subject premises that was subsequently reported to and repaired by Bestbuilt in late September or early October of 1996. Accordingly, the Mistrettas asked that the suit be dismissed, or alternatively, that in the event they were deemed liable on the main demand, their third-party demand against Bestbuilt be granted and judgment rendered in their favor for damages, attorneys' fees, expenses and costs.

In response, Bestbuilt filed an Exception of Prescription and alternative Answer to the Third Party Demand, asserting that any claims set forth by the Mistrettas had prescribed pursuant to the provisions of LSA-R.S. 9:3144,[1] the New Home Warranty Act ("NHWA"), and LSA-C.C. art. 2534. The matter was heard before the trial court on May 30, 2003, and after considering the pleadings, evidence, and argument of counsel, the trial court rendered judgment on June 4, 2003, maintaining the exception of prescription in favor of Bestbuilt, and dismissing the third party claims of the Mistrettas with prejudice.

THE APPEAL

The Mistrettas filed the instant devolutive appeal, contending that the trial court erred in dismissing their third-party claim against Bestbuilt as prescribed under the provisions of the NHWA. The Mistrettas contend that their claims for negligent misrepresentation and/or detrimental reliance and request for indemnification are independent and separate causes of action which the NWHA cannot exclude as a matter of law. The Mistrettas further contend that the trial court erred as a matter of law in applying an over-expansive interpretation of the NHWA's definition of "Owner" as neither the Cilibertis (plaintiffs) nor the Mistrettas (third-party plaintiffs) meet the definitional requirements necessary to establish either party as an "Owner" under the Act.

DISCUSSION

Assignments of Error Numbers One and Two

The standard of review controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Pratt v. Himel Marine, Inc., XXXX-XXXX, p. 7 (La.App. 1st Cir.6/21/02), 823 So.2d 394, 400.

*792 In these assignments, the Mistrettas do not challenge the trial court's finding that their third-party claims were prescribed under the NHWA. Instead, they contend that the trial court erred in failing to recognize their right to seek relief under alternative theories of recovery, i.e., negligent misrepresentation, detrimental reliance, and indemnification, which they argue are separate and independent causes of action not governed by the provisions of the NHWA. Bestbuilt counters that because the Mistrettas did not allege negligent misrepresentation or detrimental reliance in their third-party demand, or raise these arguments before the trial court, these claims are waived and the Mistrettas are prohibited from raising them on appeal for consideration by this court in the first instance.

The Mistrettas' Third Party Demand set forth the following allegations against Bestbuilt:

II.
In the event third-party plaintiffs are held liable to plaintiffs for any redhibitory defects in the subject premises, then Bestbuilt Homes, Inc. is concomitantly liable unto third-party plaintiffs as their predecessor in title because Bestbuilt Homes, Inc. was the manufacturer/builder of the subject property and is therefore legally presumed to know of the existence of any such "defects" therein.
III.
Third-party plaintiffs had earlier purchased said premises directly from third-party defendant, Bestbuilt Homes, Inc., and had one plumbing-related complaint with the subject premises, which arose shortly after the premises were delivered to them for habitation and which complaint was tendered for repair to Bestbuilt Homes, Inc. and thereafter was ostensibly repaired.

The NHWA was enacted in 1986 and codified in LSA-R.S. 9:3142, et seq., for the purpose of "providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners' insurance as additional protection for the public against defects in the construction of new homes." LSA-R.S. 9:3141. The NHWA provides a "warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty provisions provided herein." LSA-R.S. 9:3141. The NHWA also provides that "all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials." LSA-R.S. 9:3141.

Most importantly, the NHWA provides the exclusive remedies, warranties, and peremptive periods as between the builder and owner relative to home construction and statutorily sets forth that no other provisions of law relative to warranties and redhibitory vices and defects shall apply. LSA-R.S. 9:3150. Further, LSA-C.C. art. 2520, which governs claims in redhibition, specifically states in Comment (e) that, "[t]he Articles on redhibition do not apply to hidden defects discovered in a new home governed by the New Home Warranty Act, R.S. 9:3141-3150."

Nonetheless, on appeal, the Mistrettas assign as error the trial court's granting of the exception of prescription and dismissal of their third-party claim for relief under alternative theories of negligent misrepresentation and/or detrimental reliance.

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Bluebook (online)
879 So. 2d 789, 2004 WL 1078308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ciliberti-v-mistretta-lactapp-2004.