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TERRI BARRACK, WIFE                                                                          *   NO. 2007-CA-0097
OF/AND DR. ROBERT
BARRACK                                                                                      *   COURT OF APPEAL
VERSUS                                                                                       *   FOURTH CIRCUIT
J.F. DAY & COMPANY, INC.,                                                                    *   STATE OF LOUISIANA
D/B/A PELLA WINDOWS &
DOORS, PELLA                                                                                 *
CORPORATION,
CHARLOTTE SPENCER                                                                            *
SMITH AND SPENCERSMITH,                                                                      *
A PROFESSIONAL
CORPORATION, F/K/A
SPENCERSMITH, INC.
MURRAY, J., CONCURS AND ASSIGNS REASONS
The issue in this case, which appears to be res nova, is whether actual notice
to the builder within the time limits set forth in La. R.S. 9:3145 (as opposed to
written notice by registered or certified mail) is sufficient to maintain a cause of
action under the NHWA.  I agree with the majority that Carter v. Duhe, 05-0390
(La. 01/19/06), 921 So.2d 963, upon which the trial court relied, is distinguishable.
The issue in Carter was whether the builder could invoke the protections of the
NHWA despite his having failed to comply with a separate requirement of R.S.
9:3145, which is that the builder give the homeowner written notice of the
provisions of the NHWA at the time of closing.  The Supreme Court in Carter
decided that the builder was protected by the statute despite his failure to strictly
comply with this notice requirement.
Although the issue in Carter is not the same as that presented in the instant
case, I find the Supreme Court’s approach to that decision and its interpretation of
the statute to be instructional.    If the builder does not forfeit the protections of the
NHWA by failing to comply with the notice requirement, neither should the
homeowner forfeit his rights under the statute by failing to strictly comply with




R.S. 9:3145’s express stipulation as to the form of notice, especially where actual
notice within the proper time limits is undisputed.
In the instant case, I find that actual notice to the defendant/builder clearly
complies with the spirit and purpose of the statute.  Accordingly, I respectfully
concur in the majority’s reversal of the trial court’s granting of summary judgment.

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