Hutcherson v. Harvey Smith Construction, Inc.

7 So. 3d 775, 2008 La.App. 1 Cir. 1046, 2009 La. App. LEXIS 203, 2009 WL 367083
CourtLouisiana Court of Appeal
DecidedFebruary 13, 2009
Docket2008 CA 1046
StatusPublished
Cited by8 cases

This text of 7 So. 3d 775 (Hutcherson v. Harvey Smith Construction, Inc.) 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
Hutcherson v. Harvey Smith Construction, Inc., 7 So. 3d 775, 2008 La.App. 1 Cir. 1046, 2009 La. App. LEXIS 203, 2009 WL 367083 (La. Ct. App. 2009).

Opinions

CARTER, C.J.

| gThis is an appeal of a judgment awarding damages pursuant to the Louisiana New Home Warranty Act, LSA-R.S. 9:3141, et seq. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 21, 1996, Thomas J. and Kathleen F. Hutcherson purchased a newly [777]*777constructed house in Baton Rouge from a builder/general contractor, Harvey Smith Construction, Inc. (HSC), for $225,000.00. The Hutchersons immediately took occupancy of their new home. Within a year of moving in, the Hutchersons began to experience problems with rainwater leaking into the house at various locations. HSC replaced the flooring by two doors and made some shingle adjustments on the roof and in the attic; however, the Hutch-ersons continued to experience leaks when it rained. The Hutchersons sent a letter dated October 31, 1997, and a certified letter dated March 1, 2004, to HSC, outlining all of the problems with the house and especially highlighting the profuse water leak near the back door leading into the master bedroom. HSC refused to remedy the roof leak or to repair the crumbling and stained master bedroom sheetrock, the caved-in ceiling in the master bedroom, the rotten door facings, and the mildewed carpet, maintaining that the warranty period for such problems had expired.

The Hutchersons filed suit against HSC on November 8, 2004, pursuant to the Louisiana New Home Warranty Act (NHWA), alleging that major structural defects in the design and construction of their home’s roof framing system had caused extensive damage due to continuous leaks. The Hutchersons further alleged that despite notice and numerous demands, HSC refused to resolve the problems. HSC denied all allegations and filed | ..peremptory exceptions raising the objections of prescription, no cause of action, and no right of action. The trial court denied HSC’s exceptions and the matter went to a bench trial on October 24-25, 2007. After trial, the trial court assigned oral reasons for awarding judgment in favor of the Hutchersons, stating:

[T]he load-bearing function of the home was compromised and the design of this particular ... roof system ... caused the leakage and caused the problems that the [Hutchersons] suffered .... [T]here was physical damage ... that was caused by the water getting to the decking and the rafters, and that is a portion of the load-bearing function which gave way in terms of letting this water in.... [T]hus, the court finds that the ten-year home warranty act applies because the roof framing system itself was not designed properly in terms of having the necessary design mechanism to prevent the roof from giving way.

Accordingly, on November 5, 2007, the trial court signed a judgment ordering HSC to pay $20,000.00 to the Hutchersons for damages, $12,352.50 for attorney fees, $614.08 for court costs, and $750.00 for expert witness fees. HSC appealed.1

[778]*778STANDARD OF REVIEW

The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Graf v. Jim Walter Homes, Inc., 97-1143 ┴4(La.App. 1 Cir. 5/15/98), 713 So.2d 682, 691; Craig v. Adams Interiors, Inc., 34,591 (La.App. 2 Cir. 4/6/01), 785 So.2d 997, 1003. An appellate court cannot set aside the trial court’s factual findings unless it determines there is no reasonable factual basis for the findings and the findings are clearly wrong. Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Thus, if the findings are 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.2d 840, 844 (La. 1989). Furthermore, when we review a damage award made pursuant to the NHWA, we may not set aside the award made by the trier of fact absent an abuse of discretion. Graf 713 So.2d at 691.

THE NEW HOME WARRANTY ACT

The NHWA was originally enacted in 1986, and has since been amended five times in various respects. Because the Hutchersons obtained legal title to their home on June 21, 1996, the version of the NHWA in effect on that date controls, and the later amendments are inapplicable. Barnett v. Watkins, 06-2442 (La.App. 1 Cir. 9/19/07), 970 So.2d 1028, 1034, writ denied, 07-2066 (La.12/14/07), 970 So.2d 537. Louisiana Revised Statute 9:3141, as written in 1996, expressed the NHWA’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 uniform 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 warranties; by providing for insurance | ¡protecting home owners from breaches of warranty; and by making the required warranties mandatory in most cases.

Further, the NHWA “provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner” relative to construction defects in new homes. LSA-R.S. 9:3150;2 Carter v. Duke, 05-0390 (La.1/19/06), 921 So.2d 963, 970.

The required warranties in the NHWA are mandatory and cannot be waived by the owner or reduced by the builder. LSA-R.S. 9:3144(C). Louisiana Revised Statute 9:3144 sets out those warranties as follows:

A. Subject to the exclusions provided in R.S. 9:3144(B), every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards.
[779]*779(2) Two years following the warranty commencement date, the plumbing, electi’ical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards.
(3) Ten years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards.3 (Emphasis added.)

The “warranty commencement date” is the date that legal title is conveyed to the initial purchaser or the date that the home is first occupied, whichever occurs first. LSA-R.S. 9:3143(7). It is undisputed that the warranty commencement date in this case was June 21, 1996, the date that legal title was conveyed to the Hutchersons. Inasmuch as the Hutchersons did not file their lawsuit until over eight years later, on November 8, 2004, the | ^Hutchersons’ claim is limited to the ten-year warranty period applicable for major structural defects. Louisiana Revised Statute 9:3143(5) defines “major structural defect” to mean:

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Hutcherson v. Harvey Smith Construction, Inc.
7 So. 3d 775 (Louisiana Court of Appeal, 2009)

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Bluebook (online)
7 So. 3d 775, 2008 La.App. 1 Cir. 1046, 2009 La. App. LEXIS 203, 2009 WL 367083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutcherson-v-harvey-smith-construction-inc-lactapp-2009.