WILLIAMS v. WOOD ABC LLC (2020)

Writ application denied.

This is a New Home Warranty Act (“NHWA”) case. The facts are not in dispute. Without complying with the requirements of the NHWA, Roger P. Williams (“Plaintiff”), a purchaser of the property, first filed suit in redhibition against the initial sellers, Defendants herein. Defendants eventually filed an exception of prematurity as to Plaintiff's claims under the NHWA, specifically citing La.R.S. 9:3145, which requires “written notice” and an “opportunity to comply.”

The “opportunity to comply” has become known as the “First Fix” provision of the statute. The trial court granted Defendants’ exception of prematurity, but the court of appeal reversed, finding Plaintiff's suit in redhibition satisfied the requirements of the NHWA. I disagree.

It may be successfully argued that the redhibition suit gave satisfactory “written notice” to the Defendants under the act, but it certainly did not give the Defendants the “opportunity to comply,” meaning it did not give the Defendants the opportunity to repair/replace whatever the alleged structural problems were with the property. In other words, Plaintiff failed to comply with the “First Fix” provision of the act, and thus, Plaintiff's redhibition suit, in lieu thereof, is in violation of the act. The act requires notice and an opportunity to comply. The act states “shall,” and shall is mandatory. If mandatory requirements of the act are meaningless, then why have the act at all?

I would grant the writ, reverse the court of appeal, and reinstate the trial court's grant of Defendants’ exception of prematurity.

Genovese, J., would grant and assigns reasons. Crain, J., would grant.