Paragon Lofts Condominium Owners Ass'n v. Paragon Lofts, L.L.C.

55 So. 3d 970, 2010 La.App. 4 Cir. 0419, 2011 La. App. LEXIS 28, 2011 WL 117862
CourtLouisiana Court of Appeal
DecidedJanuary 14, 2011
Docket2010-CA-0419
StatusPublished
Cited by5 cases

This text of 55 So. 3d 970 (Paragon Lofts Condominium Owners Ass'n v. Paragon Lofts, 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.

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Paragon Lofts Condominium Owners Ass'n v. Paragon Lofts, L.L.C., 55 So. 3d 970, 2010 La.App. 4 Cir. 0419, 2011 La. App. LEXIS 28, 2011 WL 117862 (La. Ct. App. 2011).

Opinions

ROLAND L. BELSOME, Judge.

| ^his lawsuit was initiated by The Paragon Lofts Condominium Owners Association, Inc. (Condo Association) on March 11, 2002, alleging damages resulting from construction defects relating to the conversion of the building into condominium units. The original named defendants were The Paragon Lofts, elastics, Inc., The Roof Doctor, Inc., Minerit, Inc., and Edifice Construction, Inc. The first petition filed asserted claims of breach of warranty and redhibition for structural defects in roof and exterior walls leading to water intrusion.

On July 29, 2003, a supplemental and amending petition was filed naming additional defendants related to the claims of water intrusion from the roof and exterior walls. A second supplemental and amending petition named two insurers but made no new allegations regarding damages. In a third supplemental and amending petition, filed on October 30, 2009, the Condo Association named Schiro Del Bianco Enterprises, Inc., Pontchartrain Mechanical Company, Inc., and Royal Commercial Construction, Inc. and their insurers. The third supplemental and amending petition also asserted claims of defective construction of bathrooms and showers. The newly added parties were subcontractors who allegedly performed the faulty bathroom and shower work for the contractor Edifice.

| ^Edifice filed an exception of peremption claiming that the breach of warranty claims for the bathrooms and showers were perempted under the New Home Warranty Act (NHWA). After hearing arguments, the trial court granted Edifice’s exception of peremption and dismissed the bathroom/shower claims asserted by the Condo Association. No written reasons were assigned to the trial court’s ruling. The Condo Association filed a motion for reconsideration or alternatively for a new trial, which the trial court denied. The trial court certified the judgment as final and appealable.

Afterwards, the Condo Association moved the trial court to amend its judgment to also include the dismissal of the bathroom/shower claims asserted against Schiro, Pontchartrain Mechanical and Royal Commercial, who had not joined in the exception filed by Edifice. The trial court drafted an amended judgment adding the additional parties. Louisiana law allows for the amendment of final judgments under limited circumstances. La. C.C.P. art. 1951. A final judgment may be amended by the trial court on the motion of any party or on its own motion, at any time to alter the phraseology, but not the substance, of the judgment or to correct errors of calculation. Id. Thus, a judgment may be amended by the court only if the amendment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978).

Although the Condo Association couched the amendment to the judgment as a change in phraseology, rewriting a judgment to include additional parties clearly adds to the judgment and is therefore substantive. There are three methods by which a trial court can make a substantive change in a judgment: 1) the timely motion for new trial; 2) timely appeal; or 3) petition or action for nullity. Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761 (La.App. 4th Cir.1992). When the trial court does not 13follow the one of [973]*973the prescribed methods for making a substantive amendment to a judgment, the amended judgment is an absolute nullity. Francis v. Lafon Nursing Home of the Holy Family, 02-1863 (La.App. 4 Cir. 3/19/03), 840 So.2d 1281. In this case, the trial court denied the motion for new trial and later amended the judgment. Accordingly, we find the amended judgment, dated January 14, 2010, is an absolute nullity. The original judgments rendered on November 16, 2009 and January 5, 2010, which make final the dismissal of the bathroom/shower claims asserted against Edifice, are hereby reinstated.1

On appeal the Condo Association sets forth four assignments of error: 1) the trial court incorrectly determined that the amended claims did not “relate back” to the Association’s original petition; 2) the trial court incorrectly applied the law in effect on the date the construction defects were discovered instead of the conversion date which was held by the trial court and this court to be the warranty commencement date; 3) the trial court violated plaintiffs due process by retroactively applying procedural changes to the warranty periods when such application effectively deprived the plaintiff of vested rights; and 4) the trial court violated plaintiffs due process by retroactively applying substantive changes in the Louisiana New Home Warranty Act (NHWA).

By peremptory exception, the defendant argues that plaintiffs’ bathroom/shower claims under the New Home Warranty Act have prescribed and are hereby perempted pursuant to the provisions of La. R.S. 9:3144 and 9:3146.

The New Home Warranty Act governs the exclusive remedies, warranties and prescriptive periods as between a builder and owner relative to home ^construction. La. R.S. 9:3150. The NHWA was originally enacted in 1986 and amended in 1997, 1999, 2001, and 2003. The amendments to the NHWA at issue in this appeal are the passage of Acts 2001, No. 179 § l,2 in which a peremptive period was substituted for the stated prescriptive period and the change in the warranty period provided in La. R.S. 9:3144 A(3).3

By definition under the NHWA, the “warranty commencement date” referenced in La. R.S. 9:3144 is the date that legal title is conveyed to the initial purchaser or the date that the home is first occupied, whichever occurs first. La. R.S. 9:3143(7). The Condo Association has asserted the commencement date of the warranty is March 12, 2001.4 The courts have consistently held that the warranties afforded the buyer are those in effect on the “warranty commencement date.” See, Hutcherson v. Harvey Smith Construc[974]*974tion, Inc., et al., 08-1046, p. 5 (La. App. 1 Cir. 2/13/09), 7 So.3d 775, 778 (citing 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; see also Eiswirth v. Anthony L.Golemi, Contractor, Inc., 03-1065 (La.App. 5 Cir. 12/30/03) 864 So.2d 792. Therefore, the Condo Association is protected by a ten-year warranty period for major structural defects.

Next, we must determine the correctness of the trial court’s finding that the | ¿peremptive period imposed by Acts 2001 applies retroactively.5 Prior to that amendment, La. R.S. 9:3146 was titled “Prescription” and provided:

Any action to enforce any warranty provided in this Chapter shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

La. R.S. 9:3146 (West 2000) (emphasis added).

After the passage of Acts 2001, La. R.S. 9:3146 is titled “Peremption” and states:

Any action to enforce any warranty provided in this Chapter shall be subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

La. R.S. 9:3146 (emphasis added).

Generally, statutes of limitation are accorded retroactive application so long as it does not divest a plaintiff of his vested right in his cause of action. Lott v. Haley, 370 So.2d 521, 523 (La.1979). In Metairie III v. Poche’

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55 So. 3d 970, 2010 La.App. 4 Cir. 0419, 2011 La. App. LEXIS 28, 2011 WL 117862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paragon-lofts-condominium-owners-assn-v-paragon-lofts-llc-lactapp-2011.