STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT WILLIAM TRENT MASSENGALE AND NO. 2020 CW 1306 ANN CHRISTINE ZEDLITZ

VERSUS

AIMEE R. MCPHERSON, ET. AL APRIL 21, 2021

In Re: Colby Constructors, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 669983.

BEFORE: MCDONALD, HOLDRIDGE, AND PENZATO, JJ.

WRIT GRANTED. The district court' s December 14, 2020 judgment denying the motion for summary judgment filed by Defendant, Colby Constructors, LLC " Colby"), is hereby reversed. Colby established that Plaintiffs failed to comply with the notice requirements of Louisiana' s New Home Warranty Act (" NHWA") contained in La. R. S. 9: 3145( A) by beginning repairs on their home prior to providing notice to Colby.

Owners are precluded from recovery against the builder when owners of a home undertake repairs to cure home defects before providing the builder with notice and a reasonable opportunity to remedy the damages. Carter v. Duhe, 2005- 0390 ( La. 1/ 19/ 06), 921 So. 2d 963, 968; see also Ledbetter v. Homes by Paige, L. L. C., 2011- 0005 ( La. App. 1st Cir. 3/ 23/ 12), 110 So. 3d 141, 144, writ denied, 2012- 0899 ( La. 6/ 1/ 12), 90 So. 3d 445 (" Absent compliance with LSA- R. S. 9: 3145, recovery under the NHWA is precluded."). Once owners hire a new contractor to make repairs, the defendant builder loses the opportunity to remedy any defects in accordance with the NHWA. Thus, an owner' s failure to properly notify the builder of the construction defects is fatal to his NHWA claims. Siragusa v. Bordelon, 2015- 1372 ( La. App. 1st Cir. 4/ 15/ 16), 195 So. 3d 100, 107.

Since the NHWA is the exclusive remedy between builders and owners relative to home construction, plaintiffs who fail to comply with the notice requirements are also precluded from any other theory of recovery. Id. at 106. Plaintiffs failed to produce factual support sufficient to establish a genuine issue of material fact or that Colby is not entitled to judgment as a matter of law. As a result, the motion for summary judgment filed by Colby Constructors, LLC is granted, and all claims asserted by Plaintiffs, William Trent Massengale and Ann Christine Zedlitz, against Defendant, Colby Constructors, LLC, are dismissed with prejudice.

JMM GH AHP

CO OF APPEAL, FIRST CIRCUIT

D DUTY CL K OF COURT FOR THE COURT