State Farm Fire & Casualty Co. v. Jimmy Charles Bosley

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-804

STATE FARM FIRE & CASUALTY CO., ET AL.

VERSUS

JIMMY CHARLES BOSLEY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2008-2353
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and David E. Chatelain,
Judges.

Decuir, J., concurs in the result.

AFFIRMED.

H. Alan McCall
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, Louisiana 70602
(337) 436-9491
Counsel for Defendants/Appellees:
Jimmy Charles Bosley
Kathleen Rose Jackson Bosley

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Bonita K. Preuett-Armour
Koby D. Boyett
Armour Law Firm
Post Office Box 710
Alexandria, Louisiana 71309
(318) 442-6750
Counsel for Plaintiffs/Appellants:
State Farm Fire & Casualty Co.
Catherine Garr Brumwell
Matthew Brumwell

CHATELAIN, Judge Pro Tempore.

Insurer and its insureds appeal the trial court’s judgment which sustained an

exception of no cause of action in favor of the defendants who constructed and sold

a home to the insureds and dismissed their claims against the defendants. We affirm

the dismissal of the plaintiffs’ claims against the defendants, but for reasons other

than those contained in the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Catherine and Matthew Brumwell purchased a home from Jimmy and Kathleen

Bosley (the Defendants). Mr. Bosley, Gregory Norsworthy, and/or Norsworthy

Construction Co., Inc. were the general contractors that constructed the home.

Approximately seven months after the Brumwells purchased the home, a fire occurred

in the attic which caused extensive fire and smoke damage to the home and its

contents. The Brumwells were forced to live elsewhere while the home was repaired

and had to replace much of their personal property.

State Farm Fire and Casualty Company (State Farm), which insured the

Brumwells’ home pursuant to a homeowners’ policy, made payments for repairs,

replacement of personal property, and living expenses on behalf of the Brumwells.

State Farm and the Brumwells (the Plaintiffs) filed suit against the Defendants and

others, seeking to recoup the amounts State Farm paid on the Brumwells’ behalf and

the deductible the Brumwells paid. The Defendants filed exceptions of no right of

action, no cause of action. After conducting a hearing, the trial court granted both

exceptions but signed a judgment that granted only the exception of no cause of

action.

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The Plaintiffs appeal the trial court’s judgment, contending that the trial court

erred in finding that: 1) the New Home Warranty Act (NHWA) precludes recovery

for damages and/or losses attributable to contents and interim living expenses; 2) the

obligations of a seller are vitiated by the NHWA; and 3) the defect present in the

Brumwells’ home was susceptible to repair.

DISCUSSION

Relying on La.R.S. 9:3141-3150, the Defendants contend that the provisions

of the NHWA excluded all of the Plaintiffs’ claims against them. Their peremptory

exceptions of no right of action, no cause of action are based on the Plaintiffs’ failure

to comply with requirements of the NHWA and the exclusivity of the remedies,

warranties, and peremptive periods provided in the NHWA.

From the outset, we observe that the Defendants’ peremptory exceptions of no

right of action, no cause of action are pled in the same pleading with no distinction

made between the two. That blending of exceptions was exacerbated when the trial

court made no distinction in its oral reasons for judgment between the exceptions and

granted both exceptions as though they were one. Notwithstanding the trial court’s

reasons, the trial court judgment which forms the basis for this appeal only granted

the exception of no cause of action; the exception of no right of action was not

mentioned.

Where the trial court’s judgment differs from its oral reasons, the judgment

prevails. Friendship Hunting Club v. Lejeune, 08-671 (La.App. 3 Cir. 12/10/08), 999

So.2d 216, writ denied, 09-79 (La. 3/13/09), 5 So.3d 121. Furthermore, when a

judgment is silent as to a request for relief, it is presumed that the request was denied.

M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998 So.2d 16.

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Accordingly, we must review the trial court’s judgment as sustaining the peremptory

exception of no cause of action and denying the peremptory exception of no right of

action. Defendants did not appeal the trial court’s judgment. However, this court

may notice on its own motion “the failure to disclose . . . a right or interest in the

plaintiff to institute the suit.” La.Code Civ.P. art. 927(B). We choose to notice the

exception of no right of action.

Our review of the trial court’s action with regard to each of these peremptory

exceptions is de novo. See Preuett v. Preuett, 08-1060 (La.App. 3 Cir. 2/11/09), 4

So.3d 260 (review of denial of an exception of no right of action is de novo review);

Fink v. Bryant, 01-987 (La. 11/28/01), 801 So.2d 346 (review of ruling sustaining an

exception of no cause of action is de novo review). Because the peremptory

exceptions of no cause of action and no right of action have distinct functions and

have different evidentiary rules applicable to them, we will analyze these peremptory

exceptions separately.

Peremptory exception of no cause of action

As used in the context of the peremptory exception, a “cause of action” refers

to the operative facts which give rise to the plaintiff’s right to judicially assert the

action against the defendant. “The purpose of the peremptory exception of no cause

of action is to test the legal sufficiency of the petition by determining whether the law

affords a remedy on the facts alleged in the petition.” Scheffler v. Adams and Reese,

LLP, 06-1774, p. 4 (La. 2/22/07), 950 So.2d 641, 646; Fink, 801 So.2d at 348. No

evidence may be introduced to support or controvert the exception of no cause of

action. La.Code Civ.P. art. 931. The supreme court elaborated in Scheffler, 950

So.2d at 646 (citation omitted):

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The exception is triable on the face of the pleadings, and, for purposes
of resolving the issues raised by the exception, the well-pleaded facts in
the petition must be accepted as true. The issue at the trial of the
exception is whether, on the face of the petition, the plaintiff is legally
entitled to the relief sought.

“The burden of demonstrating that a petition fails to state a cause of action is

upon the mover.” Id. at 647. The pertinent inquiry is whether, in the light most

favorable to the plaintiff, and with every doubt resolved in the plaintiff’s favor, the

petition states any valid cause of action for relief. Id.

Our review of the Plaintiffs’ petition shows neither their compliance nor non-

compliance with the provisions of the NHWA. Accordingly, the face of the

Plaintiffs’ petition does not establish whether the NHWA excluded their claims

against these defendants. Accordingly, based upon well-accepted methods of

analysis, we find the trial court erred in sustaining the Defendants’ exception of no

cause of action.

Peremptory exception of no right of action

An exception of no right of action “determine[s] whether the plaintiff belongs

to the class of persons to whom the law grants the cause of action asserted in the

suit.” Indus. Cos., Inc. v. Durbin, 02-665, p. 11 (La. 1/28/03), 837 So.2d 1207, 1216.

The question presented is whether the “plaintiff has a right to bring the suit.” Hood

v. Cotter, 08-215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. “[E]vidence may be

introduced to support” an exception of no right of action “when the grounds thereof

do not appear from the petition.” La.Code Civ.P. art. 931.

At the heart of the Defendants’ peremptory exception of no right of action is

their contention that the Plaintiffs have no right to bring this suit because of the

provisions of the NHWA. The NHWA “establish[es] minimum required warranties

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and shall not be waived by the owner or reduced by the builder.” La.R.S. 9:3144(C).

It also provides “the exclusive remedies, warranties, and peremptive periods as

between builder and owner relative to home construction[,] and no other provisions

of law relative to warranties and redhibitory vices and defects shall apply.” La.R.S.

9:3150.

The Defendants first argue that the Plaintiffs cannot take advantage of the

NHWA because they failed to satisfy the notice requirements provided in La.R.S.

9:3145. Section 3145(A) requires that an “owner give the builder written notice, by

registered or certified mail, within one year after knowledge of the defect, advising

him of all defects and giving the builder a reasonable opportunity to comply with the

provisions of this Chapter.”

The Plaintiffs do not contend that they gave the notice required by La.R.S.

9:3145(A). Instead, relying upon four assertions, they argue the NHWA does not

govern their claims.

The Plaintiffs first assert that although the items and damages specified in

La.R.S. 9:3144 “are excluded from coverage under the NHWA because the NHWA

provides the exclusive remedies between builder and owner relative to home

construction only . . . these excluded claims/losses may be pursued against the

builder outside the mandates of the NHWA.” (Emphasis added). We find the

Plaintiffs’ argument misplaced because it fails to acknowledge that the NHWA

“provides the exclusive remedies, warranties, and prescriptive periods as between

builder and owner relative to home construction and no other provisions of law

relative to warranties and redhibitory vices and defects shall apply.” La.R.S. 9:3150.

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Moreover, it is clear that some of the damages the Plaintiffs seek to recover are

specifically excluded by the Act. See La.R.S. 9:3143.

The supreme court addressed the Plaintiffs’ claim in the present case in Carter

v. Duhe, 05-390 (La. 1/19/06), 921 So.2d 963. There the court stated that, “[w]ithout

notice of defects . . . not only is the owner precluded from recovery under the NHWA,

he is also precluded from any other theory of recovery because the NHWA provides

the exclusive remedy between owners and new home builders.” Id. at 968.

The Plaintiffs next argue the NHWA in no way applies to loss or damage which

does not constitute a defect in the construction of the home by the builder. They then

proceed to identify losses attributable to contents and rental expenses. Again, the

Plaintiffs fail to acknowledge that the NHWA excluded these losses, as it specifically

excludes “damage to personal property”; “[a]ny cost of shelter, transportation, food,

moving, storage, or other incidental expense related to relocation during repair”; and

“[c]onsequential damages.” La.R.S. 9:3141(B)(14), (15), and (17), respectively.

Furthermore, the Plaintiffs’ argument ignores La.R.S. 9:3144(B)(16) which excludes

“[a]ny defect not reported in writing by registered or certified mail to the builder.”

The Plaintiffs also contend that the Defendants are not a “builder,” as defined

by the NHWA, because they were identified as “Vendor,” not builder, in the Cash

Deed, which transferred title to the Brumwells and that their claims are asserted

against the Defendants in their capacity as seller, not builder. Contrary to the

Plaintiffs’ argument, the NHWA contemplates the possibility that the builder and

seller might be the same party. It defines builder as “ any person . . . joint venture,

or other entity which constructs a home . . . including a home occupied initially by its

builder as his residence.” La.R.S. 9:3143(1). See also Royer v. V. P. Pierret Constr.,

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Inc., 02-263 (La.App. 3 Cir. 10/28/02), 834 So.2d 1078, writ denied, 02-2880 (La.

1/31/03), 836 So.3d 73 (holding that an arrangement whereby one entity built homes

and another entity sold the homes constituted a joint venture and that the seller was

a builder under the NHWA).

The Plaintiffs cite cases which they contend support their position; however,

those cases are distinguishable because the builder and the seller were not the same.

See Hollingsworth v. Choates, 42,424 (La.App. 2 Cir. 8/22/07), 963 So.2d 1089 (the

builder and seller was a limited liability corporation; however, the plaintiff sued the

manager of the corporation in his individual capacity); see also Squyres v. Nationwide

Housing Sys., Inc., 98-8 (La.App. 3 Cir. 6/3/08), 715 So.2d 538 and Coussan v. Jim

Tatman’s Mobile Homes, Inc., 99-956 (La.App. 3 Cir. 12/15/99), 755 So.2d 293 (the

manufacturers and sellers of the mobile home were separate, unrelated entities).

In their last argument, the Plaintiffs assert that they were not required to give

the Defendants notice and an opportunity to repair the damages caused by the defect,

as required by La.R.S. 9:3145, because the defect at issue, a staple in an electrical

wire, was destroyed in the fire and could not be cured or repaired, as contemplated

by the NHWA. This argument ignores the obvious, i.e., defects in home construction

often trigger events which destroy the “defects” and necessitate reconstruction of

property destroyed as a result of the defect.

After reviewing the Plaintiffs’ petition, the NHWA, and applicable

jurisprudence, we find the Plaintiffs have failed to establish a right of action.

Therefore, we reverse the trial court’s denial of the Defendants’ peremptory exception

of no right of action.

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DISPOSITION

The portion of the trial court’s judgment that sustained the Defendants’

peremptory exception of no cause of action is reversed. The Defendants’ peremptory

exception of no right of action is granted, and the trial court’s dismissal of the

Plaintiffs’ claims against the Defendants is affirmed. All costs of in the trial court

and this appeal are assessed to the Plaintiffs.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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