     Case: 12-30183   Document: 00512023188   Page: 1   Date Filed: 10/17/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                   FILED
                                                                 October 17, 2012

                                 No. 12-30183                     Lyle W. Cayce
                                                                       Clerk

MIKE GINES, Individually and on Behalf of All Others Similarly Situated,

                                           Plaintiff-Appellant
v.

D.R. HORTON, INCORPORATED,

                                           Defendant-Appellee



                  Appeal from the United States District Court
                      for the Middle District of Louisiana


Before KING, SMITH, and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
        This case concerns the remedy under Louisiana law for the purchaser of
a newly constructed home with a construction defect that has not resulted in
actual physical damage to the home. We are presented with two questions. First,
we are asked to decide whether the Louisiana New Home Warranty Act provides
the exclusive remedy against a builder for a purchaser of a newly constructed
home with a construction defect. Second, we are asked to decide whether a claim
brought under the Act must allege that the defect in question resulted in actual
physical damage to the home. We answer both questions in the affirmative.
Accordingly, we affirm the judgment of the district court dismissing the case.
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                                  No. 12-30183

                      I. FACTS AND PROCEEDINGS
      On or about November 21, 2006, Plaintiff-Appellant Mike Gines (“Gines”)
purchased a new home in Louisiana built by Defendant-Appellee D.R. Horton,
Inc. (“Horton”). The air conditioning system in the home was installed by Reliant
Heating and Air Conditioning of Louisiana, L.L.C. (“Reliant”) and designed by
Reliant Heating & Air Conditioning, Inc. After Gines took possession of the
home, he discovered that the system’s capacity was not large enough to maintain
an appropriate temperature in the home. On July 9, 2007, Gines made a written
demand on Horton to repair the system. Horton and Reliant made several
attempts to do so, but the alleged problems persisted.
      On August 22, 2008, Gines filed a class action petition against Horton and
Reliant in state court. After Reliant and Horton removed to federal court, Gines
filed an amended complaint, asserting causes of action for violations of the
Louisiana New Home Warranty Act (“NHWA”), redhibition, breach of contract,
poor workmanship, non-compliance of contract, and negligence. Gines alleged
that Horton and Reliant were liable because the air conditioning system was not
reasonably fit for its ordinary use, failed to cool the home properly, was
undersized, and continually ran on hot days. Gines further alleged that Horton
and Reliant were liable for any other defects in the air conditioning system to be
shown at trial. Gines sought reimbursement for a replacement air conditioning
system, increased energy bills caused by the system, and attorney’s fees and
costs associated with this lawsuit.
      On September 29, 2008, before the amended complaint was filed, Horton
and Reliant filed a motion to dismiss. In support of this motion, Horton argued
that Gines failed to state a claim under the NHWA because the alleged defect
did not result in “actual physical damage” to Gines’s home, as required under
the Act. After Gines filed his amended complaint, Horton filed a supplemental
memorandum in which it reaffirmed its position that Gines had failed to state

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                                      No. 12-30183

a claim under the NHWA because he had not alleged actual physical damage to
his home. Horton argued for the first time that the NHWA provides Gines’s
exclusive remedy, and therefore Gines’s amended claims should be dismissed.
        On July 28, 2011, the district court granted Horton’s motion to dismiss,
holding that the NHWA provided Gines’s exclusive remedy against Horton, and
that Gines’s claims under the Act failed because Gines did not allege that the
system caused physical damage to his home. Gines timely appealed, and now
asks this court to reverse the district court’s judgment.1 In addition, Gines moves
this court to certify the two questions of state law raised in this appeal to the
Louisiana Supreme Court.
           II. STANDARD OF REVIEW AND APPLICABLE LAW
A.      Standard of Review
        Dismissal of a complaint for failure to state a claim is reviewed de novo.
Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2008). We
“accept[ ] all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (internal quotation marks and citations omitted). The plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Factual allegations must be enough
to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Id. at 555
(internal citations and footnote omitted).
B.      Applicable Law
        When jurisdiction is based on diversity, we apply the substantive law of
the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); Holt v. State
Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Louisiana law applies

       1
        On April 10, 2012, Gines filed an unopposed motion to dismiss his appeal against the
Reliant co-defendants. This motion was granted on April 12, 2012.

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in this case. “To determine Louisiana law, we look to the final decisions of
Louisiana’s highest court.” Holt, 627 F.3d at 191 (citation omitted). “In the
absence of a final decision by that court addressing the issue at hand, a federal
court must determine, in its best judgment, how the state’s highest court would
resolve the issue if presented with it.” Id. (citation omitted). In “making an
Erie-guess in the absence of explicit guidance from the state courts, [this court]
must attempt to predict state law, not to create or modify it.” Am. Waste &
Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.
1991) (citations and internal quotation marks omitted); see also Cerda v.
2004–EQR1 L.L.C., 612 F.3d 781, 794 (5th Cir. 2010) (“In making an Erie guess,
we defer to intermediate state appellate court decisions, unless convinced by
other persuasive data that the higher court of the state would decide otherwise.”)
(citation and internal quotation marks omitted). We are “not free to fashion new
theories of recovery under Louisiana law.” Am. Waste, 949 F.2d at 1386 (citation
and internal quotation marks omitted).
                              III. DISCUSSION
A.      The Exclusivity of the NHWA’s Remedies
        The NHWA’s policy objective is to “promote commerce in Louisiana by
providing clear, concise, and mandatory warranties for the purchasers and
occupants of new homes in Louisiana.” La. Rev. Stat. Ann. § 9:3141. Section
9:3150 of the NHWA provides that the Act establishes “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.”
        Gines argues that the district court erred in ruling that the NHWA
provides the sole remedy under Louisiana law for a purchaser of a new home
with construction defects. Gines contends that the ruling below “essentially
transformed the NHWA into a caveat emptor statute where the buyer has no

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recourse for defective construction” that does not result in “actual physical
damage.” According to Gines, if the NHWA provides the only remedy for
purchasers of new homes with construction defects, then the actual physical
damage requirement “essentially eliminates a whole line of case law requiring,
as a matter of public policy, [that] builders . . . complete residential housing in
a workmanlike manner.”
      Horton agrees that the general rule implied in construction contracts is
that the work will be free of defects and performed in a workmanlike manner,
but Horton contends that the general rule is inapplicable in this case. Rather,
in Horton’s view, the NHWA provides “the exclusive remedies for claims
regarding alleged defects to a new residence.” According to Horton, “the breach
of contract and implied warranty claims generally available in other construction
contracts are not available under the NHWA.”
      In accordance with the statute’s plain language, and as Gines concedes,
the Louisiana Supreme Court has held that the NHWA provides a homeowner’s
exclusive remedy against a builder for defects in new home construction. In
Carter v. Duhe, the Louisiana Supreme Court stated that “the NHWA provides
the exclusive remedy between owners and new home builders.” 921 So. 2d 963,
968 (La. 2006). In Carter, new homeowners argued that they should have been
able to assert claims outside of the NHWA because their builder did not give
them notice of the Act’s requirements as required by law. Id. at 967. The Carter
court held that the NHWA does not provide a penalty for failure of the builder
to provide notice to homeowners. Id. at 968. Accordingly, it concluded that the
builder did not waive the exclusivity provision of the NHWA, and it reinstated
the trial court’s dismissal of all non-NHWA claims. Id. at 969-71.
      In Marks v. New Orleans Police Department, the Louisiana Supreme Court
clarified that the rationale in Carter is not limited to disputes over the NHWA’s
notice provisions. 943 So. 2d 1028, 1035 (La. 2006). Although the facts of Marks

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do not pertain to new home construction defects or the NHWA,2 the Marks court
confirmed that the holding in Carter was that “the NHWA provides the exclusive
remedies, warranties, and peremptive periods between the builder and owner
relative to new home construction.” Id.
         We further note that the six cases Gines cites to support his argument that
he may bring a breach of contract claim against Horton are inapposite. Several
of these cases involve construction not covered by the NHWA, such as defective
driveways and sidewalks,3 construction related to a waste water treatment
plant,4 new roof installation,5 and home repairs.6 One of the cases that Gines
cites was decided before the NHWA was enacted,7 and another involved a suit
by the builder for costs not reimbursed or paid by the purchaser.8 None of these
cases carves out an exception to the Louisiana Supreme Court’s holding that the
NHWA provides a homeowner’s exclusive remedy in cases such as this one.
Gines therefore cannot bring a claim against Horton for breach of contract.




         2
         Marks concerned a police officer who was suspended and terminated for misconduct
after a sixty-day statutory period for conducting an investigation had lapsed. 943 So.2d at
1030. The reference to Carter arose in the court’s discussion of statutes that contain
mandatory language (“X is required to do Y”) but lack corresponding penalty provisions to
enforce their mandates. Id. at 1035-37.
         3
         Boudreaux v. Matherne, No. 2010 CA 1996, 2011 WL 2023468 (La. App. 1st Cir. May
6, 2011) (unpublished).
         4
             City of Plaquemine v. N. Am. Constructors, Inc., 832 So. 2d 447 (La. App. 1st Cir.
2002).
         5
         Hai Nam Chinese Rest. P’ship v. B & B Const. of New Iberia, 942 So. 2d 97 (La. App.
3rd Cir. 2006).
         6
             Troy v. Bretz, 399 So. 2d 667 (La. App. 1st Cir. 1981).
         7
             Davidge v. H & H Constr. Co., 432 So. 2d 393 (La. App. 1st Cir. 1983).
         8
             Austin Homes, Inc. v. Thibodeaux, 821 So. 2d 10 (La. App. 3rd Cir. 2002).

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B.      The Actual Physical Damage Requirement
        “Unless the parties otherwise agree in writing,” section 9:3144(B)(13) of
the NHWA excludes from coverage under its warranties “[a]ny condition which
does not result in actual physical damage to the home.” La. Rev. Stat. Ann. §
9:3144(B)(13). We are asked to determine whether Gines was required to allege
in his NHWA claims that the construction defect—the undersized air
conditioning system—resulted in actual physical damage to his home.
        Gines makes two arguments as to why his NHWA claims survive the
motion to dismiss. First, Gines argues that section 9:3144(A)(2) of the NHWA
carves out an exception to the actual physical damage requirement in section
9:3144(B)(13). Second, he argues that the actual physical damage requirement
in section 9:3144(B)(13) is a default rule, and that the parties contracted around
this requirement in paragraph 6 of the contract. We disagree.
        1.    Statutory Interpretation
        Gines argues that the district court erred in ruling that NHWA claims
require a showing of actual physical damage because section 9:3144(A)(2) is not
subject to this requirement. Section 9:3144(A)(2) provides that every builder
warrants to the new homeowner that the “heating, cooling, and ventilating
systems . . . 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.” Gines argues that this warranty exclusively covers heating
and cooling defects, and that the district court incorrectly found that the actual
physical damage requirement under section 9:3144(B)(13) reaches such defects.
        In support of his conclusion, Gines advances a four-part argument that
turns on several rules of statutory interpretation.
        First, Gines notes that the specific controls the general in matters of
statutory interpretation. Oubre v. La. Citizens Fair Plan, 79 So. 3d 987, 997 (La.
2011). Accordingly, he argues that section 9:3144(A)(2) is not subject to the

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actual physical damage requirement in section 9:3144(B)(13) because the former
section is more specific than the latter. This is incorrect. Section 9:3144(A)
begins: “[s]ubject to the exclusions provided in Subsection B of this Section,
every builder warrants the following to the owner.” The first line of subsection
A indicates that its warranties are limited by the exclusions in subsection B.
Section 9:3144(A)(2) thus merely provides the general conditions warranted
under the NHWA, including the type and extent of defects for which a builder
may be held responsible. In light of the opening clause, section 9:3144(B)(13) is
correctly interpreted as a specific limitation on the conditions for which a builder
may be held responsible. In other words, the warranties set forth under section
9:3144(A)(2), a general provision, are not available if the alleged defect does not
cause actual physical damage under the specific limitation set forth under
section 9:3144(B)(13).
      Second, Gines notes that “the latest expression of the legislative will is
considered controlling under Louisiana law.” Pumphrey v. City of New Orleans,
925 So. 2d 1202, 1210 (La. 2006). Accordingly, Gines argues, the 1999 and 2003
amendments to the NHWA extended its warranties to cover any defect
irrespective of building standards. This broad coverage, according to Gines,
undercuts the district court’s interpretation of the NHWA as requiring a
showing of actual physical damage. This argument lacks merit. The 1999
amendment provided that the NHWA would control defect claims regardless of
whether there is a building standard, and the 2003 amendment replaced the
phrase “major structural defect” with “defect.” La. Rev. Stat. Ann. §§ 9:3141,
9:3144(A)(2). Neither of these amendments concerns the physical damage
exclusion, so neither should be understood to eliminate it.
      Third, Gines argues that the NHWA must be strictly construed because
it is penal. Oubre, 79 So. 3d at 997. Gines contends that the NHWA is a penal
statute because it precludes him from enforcing a remedy to have his air

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conditioning installed in a workmanlike manner in accordance with section
9:3144(A)(2). This argument is meritless. As we have discussed, section
9:3144(A)(2) is limited by the actual physical damage requirement in section
9:3144(B)(13). The fact that the district court dismissed Gines’s claims because
they did not satisfy the requirements of section 9:3144(B)(13) does not make the
Act penal. Because the NHWA imposes no penalties on homeowners, it is not
penal in nature, and therefore we do not strictly construe it.
      Fourth, Gines argues that this court should not interpret the NHWA as
requiring a claimant to allege actual physical damage because this would lead
to absurd consequences. See McLane S., Inc. v. Bridges, 84 So. 3d 479, 483 (La.
2012). “[I]nterpretation of a law involves primarily a search for the legislature’s
intent.” Conerly v. State, 714 So. 2d 709, 710 (La. 1998); Ruiz v. Oniate, 713 So.
2d 442, 444 (La. 1998); see La. Rev. Stat. Ann. § 1:4; La. Civ. Code art. 2.
Because the language of the NHWA is unambiguous, we are compelled to enforce
the legislature’s intent by applying the statute as written, provided that this
application does not lead to absurd consequences. La. Civ. Code. art. 9; Conerly,
714 So. 2d at 710-11; Ruiz, 713 So. 2d at 444.
      Enforcing the actual physical damage requirement does not lead to absurd
consequences. In requiring a builder to provide mandatory warranties, the
NHWA also requires a new homeowner to show actual physical damage before
permitting those warranties to provide a viable claim. Given that builders could
otherwise contract around the warranties that the NHWA establishes as
mandatory, this is a reasonable requirement. As Horton correctly argues, the
district court’s ruling squares with a plain reading of the statute as creating a
quid pro quo between builders and owners. Because new homeowners and
builders alike stand to benefit from the district court’s interpretation of the
NHWA, Gines’s argument that this reading leads to absurd consequences fails.



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       2.     The Contract of Sale
       Gines argues that he may assert a claim in contract against Horton
because the actual physical damage requirement in section 9:3144(B)(13) is a
default rule that the parties can contract around. He claims that the parties did
so in paragraph 6 of the contract of sale, which provides:
       Seller agrees to build the house in accordance with industry
       standard building practices substantially in compliance with plans
       and specifications agreed to by Seller and Buyer as evidenced by
       customer selection sheet and customer change orders, if any.
Gines argues that the language in paragraph 6 creates an exception to the
NHWA language requiring actual physical damage. Therefore, he concludes, the
terms of this provision would allow for damages if Horton breaches the contract.
       We need not reach this claim because Gines did not attach a copy of the
contract to the original or amended complaint.9 It is well-established that, in
deciding whether to grant a motion to dismiss, a district court may not “go
outside the complaint.” Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.
2003). There is one recognized exception to that rule: a district court may
consider documents attached to the motion to dismiss if they are referred to in
the plaintiff’s complaint and are central to the plaintiff’s claim. Id. This
exception does not apply here because the only attachment to the motion to
dismiss was Gines’s affidavit. Thus, in granting the motion to dismiss, the
district court did not need to address Gines’s claims based on paragraph 6.
       Had Gines attached a copy of the contract to the complaint, his argument
regarding paragraph 6 still would be unavailing. The cited language does not
indicate a waiver of the physical damage requirement—it merely sets forth
Horton’s agreement to build the house in accordance with agreed upon plans and



       9
        The contract is in the record of this case, having been attached to Reliant’s notice of
removal, which Horton joined.

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specifications. Moreover, paragraph 13 of the contract shows that Gines was
aware of the absence of any such waiver in the contract. Paragraph 13 states:
      BUYER HAS BEEN PROVIDED A COPY OF THE LOUISIANA
      NEW HOME WARRANTY ACT (LA. REV. STAT. 9:3141, ET SEQ)
      AND HAS READ AND UNDERSTANDS THE PROVISIONS
      THEREOF. BUYER ACKNOWLEDGES THAT THE LOUISIANA
      NEW HOME WARRANTY ACT IS PROVIDED IN LIEU OF ALL
      OTHER WARRANTIES, ORAL AGREEMENTS, OR
      REPRESENTATIONS, AND SELLER [D.R. HORTON] MAKES NO
      WARRANTY, EXPRESSED OR IMPLIED, AS TO QUALITY,
      FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY,
      ABILITY OR OTHERWISE, EXCEPT AS IS EXPRESSLY SET
      FORTH IN THE LOUISIANA NEW HOME WARRANTY ACT.
This paragraph immediately precedes Gines’s signature on the contract, and
effectively refutes Gines’s argument that he did not know of or understand the
limitations set forth under the NHWA. It is well settled that a party who signs
a written instrument is presumed to know its contents and cannot avoid its
obligations by contending that he did not read or understand it, or that the other
contracting party failed to explain it to him. Tweedel v. Brasseaux, 433 So. 2d
133, 137 (La. 1983). On this point, Horton rightly concludes that Gines is bound
by paragraph 13, which declares that the only warranties Horton made were
those set forth in the NHWA.
      The moral of this story is that in order to avoid the harsh result that has
obtained here, the buyer of a newly constructed home in Louisiana should seek
to obtain in the contract of sale an express waiver of the actual damage
requirement of the NHWA.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment below. The motion
to certify is DENIED.




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