55 So. 3d 970
La. Ct. App.2011Background
- Condo Association sued for construction defects from converting a building into condos, including roof and exterior wall water intrusion.
- Third supplemental petition added subcontractors (Schiro Del Bianco, Pontchartrain Mechanical, Royal Commercial) and alleged bathroom/shower defects.
- Edifice Construction moved to peremptively dismiss under NHWA; trial court granted peremption and dismissed bathroom/shower claims; judgments were finalized.
- Association sought reconsideration/new trial; trial court amended judgment to add other parties, which was found to be an absolute nullity due to improper procedure.
- Court held peremption statute retroactive for the bathroom/shower claims; warranty commencement date governs the applicable warranty period; remanded to address whether ten-year major-structural-w defects warranty covers bathroom/shower claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NHWA peremption apply retroactively? | Paragon asserts retroactivity divests vested rights. | Edifice contends retroactivity proper under statute. | Peremption retroactive; no vested right vested for these claims. |
| What is the governing warranty commencement date for NHWA claims? | Commencement date is March 12, 2001. | No dispute stated; focus on applicable warranty periods. | Warranties in effect on commencement date control; ten-year major-structural warranty applies. |
| Did the amended judgment, adding new parties, constitute a substantive amendment? | Amendment mischaracterized as phraseological; seeks dismissal of additional parties. | Amendment appropriately incorporated by trial court if within procedures. | Amended judgment was an absolute nullity; remanded for proper proceedings. |
| Is NHWA applicable to a condominium association that may not be an owner under the Act? | NHWA could apply to association as owner under Act. | NHWA warranties are between builder and owner; association may not qualify. | Remanded to determine applicability; issue not resolved on appeal. |
Key Cases Cited
- Eiswirth v. Anthony L.Golemi, Contractor, Inc., 864 So. 2d 792 (La. App. 5th Cir. 2003) (retroactivity issues on peremption where action accrued before amendment)
- Metairie III v. Poche' Construction, Inc., 49 So. 3d 446 (La. App. 4th Cir. 2010) (defines vested right accrual and retroactivity considerations)
- Naghi v. Brener, 17 So. 3d 919 (La. 2009) (peremptive periods cannot be suspended or interrupted)
- Lott v. Haley, 370 So. 2d 521 (La. 1979) (retroactivity of statutes generally permitted if vested rights unaffected)
- Owens v. Martin, 449 So. 2d 448 (La. 1984) (accrual of cause of action requires fault, causation, damages)
- Hutcherson v. Harvey Smith Construction, Inc., 7 So. 3d 775 (La. App. 1st Cir. 2009) (definition of warranty commencement and application of NHWA timelines)
- Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 948 So. 2d 249 (La. App. 4th Cir. 2006) (vesting and timing principles for statutory limitations)