William Trent Massengale and Ann Chistine Zedlitz v. Aimee R. McPherson

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