258 So. 3d 834
La. Ct. App.2018Background
- Woods built a residential double at 6219-21 Vermilion Blvd., completed December 29, 2014; Mr. Wood prepared the plans as a naval architect/engineer.
- Woods rented the property, then sold it to Roger P. Williams on January 19, 2016; a pre-sale home inspection found no structural defects.
- After purchase, Williams observed vibrations and hired Gurtler Bros., which reported numerous foundation/structural defects (inspection dated August 2, 2016).
- Williams sued the Woods (redhibition) and Mr. Wood individually (professional negligence). Woods filed exceptions of no cause of action and no right of action.
- Trial court granted the exceptions and dismissed Williams’ action with prejudice; Williams appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NHWA preempts redhibition | Williams: NHWA applies only to "new" homes; this was not new because it was rented before sale | Woods: NHWA applies — they are builders, Williams is an owner, property is a home; NHWA provides exclusive remedies | Court: NHWA applies and precludes redhibition; affirmed that exception of no cause as to redhibition was proper, but plaintiff may amend to plead an NHWA claim |
| Whether trial court should have allowed amendment to plead NHWA claim | Williams: should be allowed to amend to state NHWA cause of action | Woods: sought dismissal | Held: Trial court erred to dismiss with prejudice; reversed and remanded to allow amendment |
| Whether Williams stated a cause/right of action for professional negligence against Mr. Wood (no privity) | Williams: alleged design defects caused collateral damage (e.g., floor vibration caused sheetrock cracks), supporting tort claim | Woods: No contract privity; alleged damages are only defective work itself, so no tort recovery | Held: Majority—pleading alleging sheetrock cracks is adequate to state tort damage caused by defective design; exceptions reversed as to negligence claim; two judges dissented on negligence issue |
| Whether damages alleged are merely defective performance or damage caused by defective performance | Williams: allegations include consequential damage (vibration, sheetrock cracks) beyond mere corrective cost | Woods: Petition alleges only defective design (remedial cost), not consequential damage | Held: Majority found at least one allegation of consequential damage (sheetrock cracks) sufficient to state tort claim; dissent viewed allegations as insufficient |
Key Cases Cited
- Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211 (La. 2006) (standards for exception of no cause/no right of action)
- Shaw v. Acadian Builders and Contractors, LLC, 130 So.3d 914 (La. 2013) (NHWA applies to successor purchasers even if some warranty periods elapsed)
- Indus. Companies, Inc. v. Durbin, 837 So.2d 1207 (La. 2002) (rule on reviewing peremptory exceptions/no cause of action)
- Gurtler, Hebert and Co., Inc. v. Weyland Machine Shop, Inc., 405 So.2d 660 (La. App. 4th Cir.) (tort recovery where no privity for damage caused by defective work)
- N. Clark, L.L.C. v. Chisesi, 206 So.3d 1013 (La. App. 4th Cir. 2016) (distinguishing defective work itself from damage caused by defective work for tort recovery)
- Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La. App. 4th Cir. 1971) (examples distinguishing contractual remedy from tort recovery for consequential damages)