The plaintiffs in this case entered into a contract with Custom Homes By Jim Fussell, Inc. to build a house on their lot. After occupying the home for a period of time, they began to notice cracks in the walls and floors and other defects in the quality of the construction of the house. After having the house inspected, the plaintiffs were informed that the foundation of their home was defective. Thereafter, they filed suit against the builder under the New Home Warranty Act asserting defects in the design of the slab, the preparation of the site, the preparation of the base and the construction of the slab.

The plaintiffs' experts concluded that the problem with the house was caused by soil movement, either settlement or uplift. Custom Homes By Jim Fussell, Inc. filed a Motion for Summary Judgment alleging that the plaintiffs had expressly waived any claim for loss or damage caused by conditions of the soil movement pursuant to the New Home Warranty Act. The trial court granted the defendant's motion for summary judgment.

In affirming the trial court's ruling, the First Circuit Court of Appeal held that the reports of various experts who inspected the plaintiffs' home and property all attributed the defects complained of to soil movement. Thus, it was clear that the plaintiffs validly waived their claims for these damages under their contract with the contractor.

During the course of the litigation, Mr. Roux issued an offer of judgment to the plaintiffs pursuant to LSA-C.C.P. art. 970 which was rejected. Mr. Roux ultimately recovered approximately $2,500 in costs from the plaintiffs and returned these funds to his client.
John F. Guilbeau v. Custom Homes By Jim Fussell, Inc., 985 So.2d 79 (La. App. 1st Cir. 2008).