Binning
v.
Jerry Boudinot Constr., L.L.C.

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUITDec 21, 2011
2011 CA 1091 (La. Ct. App. Dec. 21, 2011)

2011 CA 1091

12-21-2011

STEPHEN W. BINNING AND KRISTEN BINNING v. JERRY BOUDINOT CONSTRUCTION, L.L.C., ALL STATE PLASTERING, INC., PENN AMERICA INSURANCE COMPANY AND XYZ INSURANCE COMPANY

Deborah Berthelot Baton Rouge, Louisiana Counsel for Plaintiffs-Appellants Steven W. and Kristen Binning


NOT DESIGNATED FOR PUBLICATION


ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT

NUMBER 593,235, SEC. 23, PARISH OF EAST BATON ROUGE

STATE OF LOUISIANA


HONORABLE WILLIAM A. MORVANT, JUDGE

Deborah Berthelot


Baton Rouge, Louisiana


Counsel for Plaintiffs-Appellants


Steven W. and Kristen Binning
KUHN, J.

Plaintiffs-appellants, Stephen W. and Kristen Binning, appeal the trial court's judgment, which sustained a peremptory exception raising the objection of peremption asserted by defendant-appellee, Jerry Boudinot Construction, LLC. (Boudinot Construction), and dismissed the Burnings' claims against the home builder under the New Home Warranty Act (NHWA). We affirm.

Nearly five years after Boudinot Construction built the Binnings' home in the Wayside Subdivision in East Baton Rouge Parish, they discovered several soft, rotten sections in the exterior walls of their home apparently caused by moisture trapped under the stucco that allegedly had not been sealed properly. An estimate of repair to the stucco was over $65,000. The Binnings aver that after further investigation, the home showed systematic stucco failure. On August 4, 2010, the Binnings filed this lawsuit naming Boudinot Construction, among others, as a defendant. Boudinot Construction filed an exception of peremption that the trial court sustained. The Binnings appeal the judgment that the trial court subsequently signed, which dismissed their claims against Boudinot Construction.

The NHWA provides the exclusive remedies, warranties, and peremptive periods as between a builder and an owner relative to home construction and no other provisions of the law relative to warranties and redhibitory vices and defects apply. La. R.S. 9:3150. Thus, Louisiana courts have consistently recognized the NHWA's exclusive application to claims between a builder and an owner relative to construction defects in a new residence. Carter v. Duhe, 2005-0390 (La. 1/19/06), 921 So.2d963,970.

Every builder warrants to the owner that one year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards; and five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards. La. R.S. 9:3144A(1) & (3). An action to enforce any warranty provided under the NHWA is 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. Under the NHWA, an owner's remedy for construction defects in a new residence comes into existence on the "warranty commencement date," which is defined as "the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first." See La. R.S. 9:3143(7).

The parties stipulated that the Binnings moved into their new home in October 2004. Thus, to the extent that moisture trapped under the improperly sealed stucco constitutes a defect in materials or workmanship, the Binnings' claims against Boudinot Construction are clearly perempted under the NHWA as more than thirty days and one year has elapsed since the warranty commencement date. See La. R.S. 9:3146, 3144A(1) & 3143(7).

The record does not bear out whether the defects in the stucco, alleged to have been "systematic," were major structural defects sufficient to fall within the ambit of the five-year warranty provided under La. R.S. 9:3144A(3). But assuming arguendo that they were, as the trial court did, we likewise conclude that under the plain language of the NHWA, the Binnings' claims against Boudinot Construction are perempted having been asserted more than thirty days and five years after the warranty commencement date. See La. R.S. 9:3146, 3144A(3) and 3143(7); see also Barnett v. Watkins, 2006-2442 (La. App. 1st Cir. 9/19/07), 970 So.2d 1028, 1034 n.3, writ denied, 2007-2066 (La. 12/14/07), 970 So.2d 537 (the "warranty commencement date" is the operative date for determining which version of the NHWA applies).

Under La. R.S. 9:3143(5), "major structural defects" are defined as:

[A]ny actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:

(a) Foundation systems and footings.
(b) Beams.
(c) Girders.
(d) Lintels.
(e) Columns.
(f) Walls and partitions.
(g) Floor systems.
(h) Roof framing systems.


DECREE

For these reasons, the trial court's judgment sustaining the builder's exception of peremption and dismissing the Binnings' claims against Jerry Boudinot Construction is affirmed. Appeal costs are assessed against Stephen W. and Kristen Binning.

Although in their appellate brief, the Binnings make assertions about the constitutionality of the time limitation of La. R.S. 9:3144A(3), which by La. Acts 2004, No. 45, § 1, reduced the warranty period from seven to five years, they neither pleaded with particularity nor asserted the issue before the trial court. Thus, it is not properly before this court on appeal. See Istre v. Meche, 2000-1316 (La. 10/17/00), 770 So.2d 776, 779.
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AFFIRMED.