Nunez v. Pinnacle Homes, L.L.C.

135 So. 3d 1283, 13 La.App. 3 Cir. 1302, 2014 WL 1305140, 2014 La. App. LEXIS 864
CourtLouisiana Court of Appeal
DecidedApril 2, 2014
DocketNo. 13-1302
StatusPublished
Cited by2 cases

This text of 135 So. 3d 1283 (Nunez v. Pinnacle Homes, L.L.C.) 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
Nunez v. Pinnacle Homes, L.L.C., 135 So. 3d 1283, 13 La.App. 3 Cir. 1302, 2014 WL 1305140, 2014 La. App. LEXIS 864 (La. Ct. App. 2014).

Opinions

PAINTER, Judge.

|;Defendants, Pinnacle Homes, L.L.C. (Pinnacle) and Allen Lenard, appeal the judgment of the trial court finding that Pinnacle Homes and Lenard, personally, violated the New Home Warranty Act by failing to construct a house for Plaintiff, Jennifer Diane Nunez, that met state, parish, and FEMA elevation requirements and awarding damages in the amount of $210,600.00. Finding no error in the trial court’s judgment, we affirm.

FACTS

In written reasons for judgment, the trial court correctly outlined the underlying facts of the case as follows:

On January 8, 2008, JENNIFER DIANE NUNEZ and PINNACLE HOMES, LLC entered into a Cost Plus Contract — Fixed Fee contract for the construction of a new home located on 111 Boudreaux Lane, in the Grand Lake area, in Cameron Parish, Louisiana. The fixed fee of the contract was $33,748.00, and the pre-construction estimate of the construction costs was $277,772.00. (See Plaintiffs Exhibit No. 4).
Pertinent provisions of the construction contract are located in Section 4.2 and Section 4.4. Section 4.2 of the contract, provides that “[a]ll work shall be completed in a workman like manner, and shall comply with all applicable national, state and local building codes and laws.” Section 4.4 provides that “[c]on-tractor shall obtain all permits necessary for the work to be completed.’ ”
Aecu-Line Surveying, Inc.[ ] prepared an updated elevation certificate on or about September 18, 2007, which is dated March 12, 2006, which indicated that the Base Flood Elevation was 9.0 feet and Advisory Base Flood Elevation was 10.0 feet for the Nunez home. (See Plaintiffs Exhibit. No. 1). The elevation certificate also included the lowest adjacent grade at 4.61 feet and the highest adjacent grade at 5.48 feet.
According to the testimony of Ernestine Horn, Cameron Parish Administrator, the base flood elevation is required by FEMA and the advisory base flood elevation is required by the parish. After Hurricane Rita, the State of Louisiana mandated all coastal parishes, including Cameron Parish, to add one (1) foot to all of the elevations | ^contained in the flood elevation maps. (See Trial Transcript of 8/1/2012, p. 56).
The permit issued by the Cameron Parish Police Jury for the construction [1286]*1286of plaintiffs home[] required that the base flood elevation be 10 feet for the plaintiffs home. (See Plaintiffs Exhibit No. 6).
The post-construction elevation certificate prepared by Accu-Line Surveying, Inc.[] indicates that the elevation of plaintiffs home is 8.66 feet. It also indicates that the lowest elevation of machinery or equipment servicing the building is 8.10 feet. (See Plaintiffs Exhibit No. 2).
The plaintiffs home is below the required base flood elevation of 9 feet as required by FEMA and below the advisory base flood elevation of 10 feet as required by the permit issued by the Cameron parish Police Jury

Nunez filed this suit for breach of warranties and contract naming Pinnacle and SUA Insurance Co. (SUA) as defendants. She amended the petition to include Lenard, the owner of Pinnacle, and American Safety Casualty Insurance Co. (ASCI) as defendants. Nunez voluntarily dismissed the claims against SUA. The claims against ASCI were dismissed pursuant to motion for summary judgment.

The trial court denied Lenard’s Exception of No Cause of Action and Pinnacle’s motion for an order staying the proceedings and ordering arbitration. The matter was tried, and the trial court rendered judgment in favor of Plaintiff and awarded damages. Pinnacle and Lenard appeal.

DISCUSSION

On appeal, Defendants dispute the trial court’s finding that Plaintiff suffered damages because of the incorrect elevation of her house and that Lenard was personally liable for the failure to correctly elevate the house.

| ^Standard of Review

The trial court found that:
[T]he applicable law in this case is contained in the New Home Warranty Act. LSA-R.S. 9:8141-3150 et seq. Also applicable to the facts of this case is LSA-R.S. 12:1320(D).
The defendant, PINNACLE HOME[S], LLC, violated the New Home Warranty Act by not complying with the elevation standards imposed by FEMA, the State of Louisiana, and the Parish of Cameron.
This finding is not controverted on appeal.
The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Hutcherson v. Harvey Smith Const., Inc., 08-1046, p. 3 (La.App. 1 Cir. 2/13/09), 7 So.3d 775, 778. 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 Dev [.], 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). With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions [1287]*1287of law and render judgment on the record. Pierce v. State, Office of Legislative Auditor, 2007-0230, p. 7 (La.App. 1 Cir. 2/8/08), 984 So.2d 61, 67, writ denied, 2008-0542 (La.4/25/08), 978 So.2d 369.

Jenkins Bldg. Supply, Inc. v. Thigpen, 09-903, pp. 3-4 (La.App. 1 Cir. 12/23/09), 34 So.3d 867, 869.

Defendants raise questions about whether Plaintiff proved damages due to the violation of the act and whether they proved personal liability on the part of Lenard. These are questions of fact. Therefore, we will review this matter under a manifest error standard.

14Damages

We first consider Defendants’ assertion that Plaintiff failed to prove damages to a reasonable certainty. The trial court, in its written reasons, found as follows with regard to damages:

The plaintiff provided two estimates of her damages. The first estimate was the cost to elevate plaintiffs slab home to proper elevation. The total cost of the elevation was $201,600. (See Plaintiffs Exhibit No. 3). Defendant argues that this amount is substantial given the total price of plaintiffs home.
The second estimate of damages was the increased cost of flood insurance premiums over the life of plaintiffs mortgage both through the National Flood Insurance Program and through a private insurance policy. (See Plaintiffs Exhibit No. 8 and 9). From the court’s calculations, the increased insurance premiums could result in damages of as little as $21,750 (NFIP) or as high as $142,440, (private policy) over a 30 year period. Thereafter, if Mrs. Nunez wanted to purchase flood insurance for her home, she would not be compensated. Mrs. Horn explained that plaintiff may face other damages if her home is not at proper elevation.

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Related

Jennifer Diane Nunez v. Pinnacle Homes, L.L.C. and Sua Insurance Company
180 So. 3d 285 (Supreme Court of Louisiana, 2015)

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Bluebook (online)
135 So. 3d 1283, 13 La.App. 3 Cir. 1302, 2014 WL 1305140, 2014 La. App. LEXIS 864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunez-v-pinnacle-homes-llc-lactapp-2014.