Siragusa v. Bordelon
195 So. 3d 100
| La. Ct. App. | 2016Background
- In 2005 Chad Bradley Bordelon (through BCRC) began building a two-story pilings house for John and Barbara Hamilton on a cost-plus basis; Bordelon terminated oversight in April 2006 while the house was largely framed but not finished.
- The Hamiltons completed construction using subcontractors and moved in December 2006; Bordelon returned unused portion of his fee and recommended other builders.
- Beginning in 2007 the Hamiltons observed porch water pooling and first-floor wood floor buckling; they did not provide written notice to Bordelon and later (2010) hired Gilhaus to remediate moisture, flashing, joists/sills, and porch slope for ~$40,958 (plus later balcony estimate).
- The Hamiltons sued Bordelon and his companies in 2011 for construction defects; bench trial occurred in Nov. 2014.
- Trial court held the New Home Warranty Act (NHWA) was the exclusive remedy, found the Hamiltons failed to comply with NHWA written-notice requirements, and that defects did not amount to a five‑year major structural defect; judgment dismissed all claims (affirmed on appeal).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NHWA is the homeowners' exclusive remedy | NHWA should not apply because Bordelon breached/abandoned the contract before completion, so plaintiffs retain common‑law breach remedies | Bordelon is a "builder" under NHWA and alleged damages arise from construction defects, so NHWA exclusivity applies | NHWA is exclusive: Bordelon qualifies as builder and claims arise from construction defects, not a separate breach for walking off job |
| Whether homeowners gave required NHWA notice | Hamiltons argue they gave actual notice by phone when reporting porch pooling and Bordelon inspected | Bordelon and trial court: no written notice by registered/certified mail as required, no specific defect notice or repair request, and plaintiff hired repairs preventing remedy opportunity | No compliance with La. R.S. 9:3145; failure to give written notice precludes recovery under NHWA (and thus any remedy against builder) |
| Whether claims are perempted / within warranty periods (esp. 5‑year major structural defect) | Hamiltons contend some claims (major structural) are within five‑year warranty and not perempted | Trial court: damages reflect moisture/repairable defects, house remained safe/livable; defects fall under one‑year warranties and peremptive periods | Claims do not show "major structural defect" making home unsafe/unlivable; most claims governed by shorter NHWA warranty periods and preemptive limits (court did not fully decide peremption due to notice failure) |
Key Cases Cited
- Hutcherson v. Harvey Smith Constr., 7 So.3d 775 (La. Ct. App. 2009) (NHWA version applicable is that in effect when home first occupied)
- Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993) (standard for manifest error review of fact findings)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (appellate deference to reasonable trial court fact findings)
- Jenkins Bldg. Supply, Inc. v. Thigpen, 34 So.3d 867 (La. Ct. App. 2009) (NHWA notice and remedy discussions)
- Shaw v. Acadian Builders & Contractors, LLC, 130 So.3d 914 (La. 2013) (purpose and scope of the NHWA; NHWA sets exclusive remedies/warranties)
- Carter v. Duhe, 921 So.2d 963 (La. 2006) (owner's failure to comply with NHWA notice precludes recovery; ignorance of the law is not a defense)
- Barnett v. Watkins, 970 So.2d 1028 (La. Ct. App. 2007) (distinguishing breach‑of‑contract damages from construction defects when owners accept home after completion by others)
- Allstate Enters., Inc. v. Brown, 907 So.2d 904 (La. Ct. App. 2005) (contractor furnishing limited labor resembles subcontractor and may fall outside NHWA)
- Cosman v. Cabrera, 28 So.3d 1075 (La. Ct. App. 2009) (discussion of NHWA scope and when party is not a builder for NHWA purposes)