NOT DESIGNATED FOR PUBLICATION
WELCH, J.
The defendant, Acadian Builders and Contractors, LLC ("Acadian") appeals a judgment of the trial court awarding damages in favor of the plaintiff, Barbara Shaw, under the New Home Warranty Act, La. R.S. 9:3141, et seq. Because we conclude that the plaintiff's claims are perempted, we reverse the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
Acadian built a home located at the municipal address of 6198 Breeze Point Drive, Gonzales, Louisiana, which is located in Pelican Point subdivision in Ascension Parish. Acadian sold the home to Ronald J. and Gay Dalton Rakosky on September 27, 2005, and on February 10, 2006, the plaintiff purchased the home from the Rakoskys for the sum of $405,000.00.
On June 24, 2009, the plaintiff filed a petition for damages against Acadian alleging that in September 2008, she noticed several areas of the home showing signs of water damage, which was not related to damage occasioned by Hurricanes Gustav and Ike. She also alleged that upon further inspection, it was revealed that there was a substantial amount of water inside the exterior walls of the home, which had allowed the studs supporting the walls to remain completely saturated for an extended period of time, rotting the wood, and creating physical damage that compromised the load-bearing functions to such an extent that the home was unsafe and would continue to deteriorate. Additionally, the plaintiff alleged that the moisture had soaked and destroyed the insulation, and that the moisture had created an environment allowing mold, mildew, and insect infestation, thereby creating unsanitary conditions in the home. Lastly, the plaintiff alleged that the water damage to the home was caused by the improper installation of the stucco on the exterior of the home, and therefore, she sought to recover the costs of repairing the damage to the home (to the extent that all major structural damage was remedied), attorney fees, and costs.1
Acadian filed an answer, essentially denying the allegations of the plaintiff's petition and asserting that the plaintiff's damages were caused by her own fault or the fault of a third party, that the plaintiff had failed to mitigate her damages, and that Acadian had fully complied with its obligations under the New Home Warranty Act. Additionally, Acadian filed a peremptory exception raising the objections of prescription and peremption. Following a hearing, the trial court rendered judgment sustaining the objection in part and overruling the objection in part. Specifically, the trial court found that all claims relating to noncompliance with building standards or for defects in materials or workmanship not regulated by building standards were prescribed, and therefore those claims were dismissed, but that all claims relating to major structural defects (for which the applicable prescriptive period was five years) were not prescribed.
Following a trial on the claims pertaining to major structural defects, the trial court rendered judgment in favor of the plaintiff and against Acadian in the amount of $115,380.68, plus legal interest from the date of judicial demand until paid, all costs of the proceedings, and reasonable attorney fees. A judgment in accordance with the trial court's ruling was signed on March 23, 2011, and it is from this judgment that Acadian now appeals.
On appeal, Acadian essentially contends that the trial court's judgment was erroneous because: the plaintiff's claims against it were perempted or prescribed because the claims presented at trial were for defects in workmanship (i.e., stucco application) and there was no evidence to establish the existence of a major structural defect (as defined by La. R.S. 9:3143(5)); the plaintiff's damages were barred based on the plaintiff's failure to mitigate damages and/or to conduct timely repairs; and the plaintiff was awarded certain consequential damages that were not recoverable under the New Home Warranty Act.
LAW AND DISCUSSION
Louisiana Revised Statutes 9:3144 provides in pertinent part:
A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) 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.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment 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.
(3) 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.
The warranty commencement date is the date that the legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. La. R.S. 9:3143(7). In this case, the warranty commencement date was September 27, 2005, the date that Acadian conveyed legal title of the home to the Rakoskys.
Louisiana Revised Statutes 9:3146 provides that "[a]ny action to enforce any warranty provided in this Chapter shall be subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in [La.] R.S. 9:3144." Ms. Shaw commenced these proceedings on June 24, 2009, approximately four years and nine months after the warranty commencement date. Therefore, we agree with the trial court's previous ruling that any of the plaintiff's claims that arise under La. R.S. 9:3144(A)(1) and (2) are perempted, but any of the plaintiff's claims arising under La. R.S. 9:3144(A)(3) are not.
Claims arising under La. R.S. 9:3144(A)(3) relate to a "major structural defect" in a home. "Major structural defect" is defined in La. R.S. 9:3143(5) as:
. . . any 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.
Following the trial on the plaintiff's claims under La. R.S. 9:3144(A)(3), the trial court issued written reasons for judgment, making the following factual findings:
1. The stucco exterior of the home was not properly applied and sealed, allowing water to come into contact with the walls and accumulate between the stucco and the walls;
2. This water accumulation over time caused the OBS plywood walls nailed to the studs on the first floor to rot away. The OBS plywood serves a structural purpose by holding the house supporting studs together. This constitutes actual physical damage;
3. This water accumulation has also caused the load bearing studs themselves to begin to rot and will slowly, over time, cause them to rot;
4. This water accumulation also cause[d] the frames to rot, so that the front door frame was so softened that a key could be sunk in the transom over the door.
5. These conditions were due to non-compliance with building standards.
6. These conditions were not caused by nail holes, screw holes, the roof, lack of proper maintenance, or hurricanes.
7. The exterior of the house is almost entirely stucco except for a portion of the garage.
After reviewing the record in its entirety, we find that these factual findings are reasonably supported by the record and are not manifestly erroneous. However, based on these factual findings, the trial court concluded "that a major structural defect exists." We disagree.
Evaluating the evidence and factual findings of the trial court alongside the relevant portions of the definition of "major structural defect" set forth in La. R.S. 9:3143(5), we agree that there is "actual physical damage" to the walls and beams (or building studs), which are "load-bearing portions" of the home, and that this damage "affects their load-bearing functions to the extent that the home becomes unsafe, unsanitary, or is otherwise unlivable." However, we find the record devoid of any evidence establishing that the "actual physical damage" to the walls and building studs were "caused by failure of the load-bearing portions." (Emphasis added). The trial court specifically found, and we agree, that the damage to the home was caused by water accumulation as a result of the improper application of the stucco to the exterior of the home. The record contains no evidence establishing that the stucco applied to the exterior of the home was load bearing. As such, we must conclude that the evidence presented at trial did not establish a "major structural defect" as defined in La. R.S. 9:3143(5), such that the plaintiff's claim for damages against Acadian fell within the five-year warranty set forth in La. R.S. 9:3144(A)(3). In accord Caminita v. Core, 2010-1961 (La. App. 1st Cir. 5/6/11), 66 So.3d 19, writ denied, 2011-1172 (La. 9/16/11), 69 So.3d 1149; Hutcherson v. Harvey Smith Const., Inc., 2008-1046 (La. App. 1st Cir. 2/13/09), 7 So.3d 775.
Rather, the evidence at trial established that the plaintiff's claims concerning water damage and the improper application of stucco to the exterior of the home was a claim for defect in workmanship, which was subject to the one-year warranty in La. R.S. 9:3144(A)(1) and the thirty day peremptive period following the expiration of that warranty under La. R.S. 9:3146. Having filed this lawsuit over three and a half years after the expiration of the one-year warranty, the plaintiff's claims against Acadian are perempted under the New Home Warranty Act. Therefore, the March 23, 2011 judgment of the trial court must be reversed.
CONCLUSION
For all of the above and foregoing reasons, the March 23, 2011 judgment of the trial court is reversed. All costs of this appeal are assessed to the plaintiff/appellee, Barbara Shaw.
REVERSED.
PETTIGREW, J., DISSENTS, AND ASSIGNS REASONS.
I must respectfully dissent from the majority. The majority concludes the record contains no evidence establishing the stucco applied to the exterior of the home was load-bearing. I concede that this analysis is consistent with recent decisions by this court in its interpretation of La. R.S. 9:3143(5). Caminita v. Core, 2010-1961 (La. App. 1 Cir. 5/6/11), 66 So.3d 19, writ denied, 2011-1172 (La. 9/16/11), 69 So.3d 1149; Hutcherson v. Harvey Smith Const., Inc., 2008-1046 (La. App. 1 Cir. 2/13/09), 7 So.3d 775.
I am of the humble opinion that the current analysis of La. R.S. 9:3143(5)(f) under this circuit's jurisprudence is incorrect. Louisiana Revised Statutes 9:3143(5)(f) specifically defines walls as load-bearing. It does not further define a wall, nor does it further limit the portions of a wall that are load-bearing. The legislature in its wisdom declared that walls are load-bearing under the statute.
Walls serve many functions to a home. The stucco exterior (just as a brick veneer exterior) is a critical part of the wall. It provides protection, not only for the home, but the interior support beams and studs of the wall, from the elements of weather, from animals, from insects, and from unwanted third-person intruders. Cracked, leaking veneer or stucco exterior is a major structural defect, which exposes and causes damage to the rest of the portions of the wall. Leaking veneer or stucco exterior is a major structural defect in a wall, which is declared to be and described as load-bearing under La. R.S. 9:3143(5)(f). The New Home Warranty Act in my opinion is a misnomer. It should be called the Home Builders' Protection Act. I would affirm the judgment of the district court.
