Dr. John and Christine Taylor contracted with Randy Rivera to prepare plans for the construction of a new home in Crowley, Louisiana. Leger Construction, LLC was the general contractor. Post-Tension Slabs, Inc. built the foundation. Roy Carubba, an engineer, contracted with Post-Tension to design the foundation. Defects were discovered, and the Talyors sued Rivera, Leger, Carubba and Post-Tension. Carubba filed exceptions of no cause of action and no right of action, and Leger a motion for summary judgment. The trial court granted Carubba’s exception of no right of action and Leger’s motion for summary judgment based on its finding the Taylors could not carry their burden to prove fault on the part of Leger at trial. The Taylors appealed.

Carubba argued the Taylors could not recover under the Civil Code article concerning negligence because it was preempted by the New Home Warranty Act and the action against him was prescribed. The court of appeal held the essential function of the exception of no right action is to provide a threshold device for terminating a suit brought by one with no legitimate interest to assert it, that is, to challenge the plaintiff’s interest in the subject matter of the suit or his lack of capacity to proceed with it. The exception is not available to urge a defense the plaintiff is without interest simply because the defendant has a defense to the action, nor can the exception be invoked to determine whether a particular defendant can stand in judgment in a particular case. Any such defense must go to the merits.

Both arguments raised by Carubba urged a defense the Taylors are without interest simply because he had a defense to the claims and must go to the merits. The court of appeal held the trial court erred in granting Carubba’s exception, and reversed that part of the trial court’s judgment.

The Taylors alleged Leger, as the general contractor, failed to properly oversee the work performed by its subcontractors, laborers, or any other entity providing services in the construction of their home. Leger based his motion on the assertion the Taylors could not maintain their burden of proof at trial. The court of appeal found there was no evidence the damages were due to a defect created by Leger or any of its employees, agents or subcontractors. The testimony of the experts at trial showed the damage to the home was caused by uneven heaving in the soil beneath the foundation. The experts agreed the decision to use a post-tension slab versus a traditional slab was not the cause of the problem. Even if the court were to find that Leger influenced Dr. Taylor to choose a post-tension slab, it was ultimately up to the designer of the slab to make sure it was adequate given the information available. The problem with the foundation was either the inadequate depth of the post-tension slab or the lack of other support structures. The foundation was designed by Carubba who contracted with Post-Tension to create the design. Post-Tension was hired and paid by the Taylors. Neither Carubba nor Post-Tension were the agent, subcontractor or employee of Leger, and there was no evidence Carubba based his design on anything done or recommended by Leger. Taylor v. Leger Construction, LLC, 2009-1263 (La.App. 3 Cir. 4/7/10), 34 So.3d 1033.

In the same proceeding, Post-Tension filed an exception of no cause of action, representing the New Home Warranty Act precluded any claims against it. Post-Tension argued the Act provides it is the exclusive remedy of the owner, and since it was not the builder, and only constructed the foundation, the Taylors had no cause of action against it. The trial court granted Post-Tension’s exception of no cause of action. The Taylors appealed.

The court of appeal held the exclusive remedy provisions of the Act were between the owner and the builder who constructed the home, and did not restrict any claims by a homeowner against a subcontractor such as Post-Tension. The judgment granting the exception of no cause of action in favor of Post-Tension was reversed and set aside. Taylor v. Leger Construction, LLC, 2010-749 (La.App. 3 Cir. 12/8/10), 52 So.3d 1098.