American Bank & Trust Co. v. Shel-Boze, Inc.

527 So. 2d 1052, 1988 La. App. LEXIS 1658, 1988 WL 65946
CourtLouisiana Court of Appeal
DecidedJune 21, 1988
DocketCA 87 0674
StatusPublished
Cited by13 cases

This text of 527 So. 2d 1052 (American Bank & Trust Co. v. Shel-Boze, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Bank & Trust Co. v. Shel-Boze, Inc., 527 So. 2d 1052, 1988 La. App. LEXIS 1658, 1988 WL 65946 (La. Ct. App. 1988).

Opinion

527 So.2d 1052 (1988)

AMERICAN BANK & TRUST COMPANY
v.
SHEL-BOZE, INC., et al.

No. CA 87 0674.

Court of Appeal of Louisiana, First Circuit.

June 21, 1988.

William Shockey, Baton Rouge, for plaintiff-appellant American Bank & Trust Co.

Dee Taylor, Baton Rouge, for defendant-appellee Shel-Boze, Inc.

*1053 Craig Kaster, Baton Rouge, for defendant-appellee Jenkins Tile Co.

Donnie Floyd, Baton Rouge, for defendant-appellee Dayton Heating & Air Conditioning, Inc.

Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

COVINGTON, Chief Judge.

This is a devolutive appeal by plaintiff, American Bank & Trust Company, from a judgment in favor of defendants, Jenkins Tile Company, Inc., Shel-Boze, Inc., William J. Jenkins and Hugh A. Shelton, dismissing plaintiff's action at its costs.

Appellant, American Bank & Trust Company, (hereinafter referred to as "AmBank") is the holder of a number of promissory notes executed by A & M Builders, Inc. (A & M) and secured by collateral mortgages affecting two residential lots in Riverbend Subdivision, Fourth Filing, East Baton Rouge Parish, Louisiana. Financing was provided to A & M by AmBank for the construction of a single-family dwelling on each of the lots. In the course of the construction of these residences, A & M, contracted with appellees, Shel-Boze, Inc. (Shel-Boze) and Jenkins Tile Company, Inc. (Jenkins Tile) respectively, for the purchase of and installation of light fixtures and related electrical paraphernalia, and carpeting. All of these items were installed in the residences constructed by A & M.

On November 10, 1985, after each of the residences had been substantially completed, A & M surrendered physical possession of the two residences in question to AmBank, because A & M was unable to meet its financial obligation to AmBank. A letter of surrender from the principal of A & M is in evidence. After the residences were substantially completed and ready for occupancy, and after AmBank had advanced funds to the owner to pay for the materials purchased from the defendants, representatives of Shel-Boze and Jenkins Tile went to the two residences and removed all of the items which had been sold and/or installed by them with the permission of A & M. Neither Shel-Boze nor Jenkins Tile received payment from A & M for the materials they supplied. Additionally, Jenkins Tile was not paid its installation charges.

A petition for foreclosure was filed by AmBank on November 22, 1985, in the 19th Judicial District Court. The record of that proceeding was introduced at trial as evidence. Pursuant to orders of the court, the subject lots and residences were seized and sold at sheriff's sale. By sheriff's deed recorded on July 22, 1986, the subject residences were purchased by AmBank. As shown at trial by the testimony of representatives of Stuart Distributors and Lacour's Carpet World, AmBank purchased light fixtures and related electrical paraphernalia and carpeting for the subject residences to replace those previously removed by Shel-Boze and Jenkins Tile. The cost of purchasing and installing these replacement items was introduced at trial.

AmBank filed suit against the corporate defendants, Shel-Boze and Jenkins Tile, and the individual defendants, Hugh Shelton and William Jenkins, asserting that the light fixtures and related electrical paraphernalia and the carpet all had became component parts of each of the respective residences upon installation, and each of these items thus became encumbered with the mortgages in favor of AmBank. The acts of defendants in removing the items from the residences allegedly caused substantial damage to the immovables at that time possessed by AmBank, and subject to their mortgages. (Originally, Dayton Heating and Air Conditioning, Inc. and Donald Levatino were also joined as party defendants, but AmBank settled its claims against them prior to trial.)

AmBank claims that defendants are liable for the value of the various items removed by them from the two residences, together with the costs of reinstallation of said items.

The case was tried by bench trial on February 9, 1987. After trial, judgment was rendered in favor of the defendants, with the trial judge assigning oral reasons for judgment. It is that judgment by the trial court signed February 12, 1987, dismissing *1054 AmBank's demands against Shel-Boze, Jenkins Tile, Shelton and Jenkins which AmBank appeals.

This case presents questions of law, rather than questions of fact. No conflicting testimony was presented at trial on the merits for the trial judge to resolve.

We find that the trial judge erred in his conclusion that the light fixtures and other electrical paraphernalia removed by Shel-Boze, and the carpeting removed by Jenkins Tile had not become component parts of the residences.

Applicable law can be found in Louisiana Civil Code Article 466, which provides as follows:

Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.

An analysis of the application of this code article is found in the case of Equibank v. United States, Internal Revenue Service, 749 F.2d 1176 (5th Cir.1985). In Equibank, the plaintiff held a second mortgage on a New Orleans mansion. Foreclosure proceedings were filed on the first and second mortgages. The I.R.S. filed a federal tax lien and seized the residence when the owners failed to pay their income taxes. The first and second mortgages on the property primed the I.R.S. lien. With the consent of the owners, the I.R.S. took physical possession of the residence and removed several valuable antique crystal chandeliers. The plaintiff filed a petition for an injunction seeking the return of the chandeliers on the ground that they were component parts of the immovable, and were subject to the mortgages on the property. In order to remove the chandeliers, it was necessary to disconnect the internal house wiring from the wiring of the chandeliers and other fixtures. After the chandeliers were removed, the workboxes containing the internal house wiring were exposed along with the holes made by the securing connectors. The court noted that the removal of the chandeliers had to be done with persons having sufficient knowledge of electricity and electrical wiring to disconnect the wires without risking injury. The court also stated that this type of removal is not comparable to the simple unplugging of a lamp or other electrical appliance from a wall receptacle. Relying on the Expose'des Motifs of the 1978 revision of Book 2 of the Louisiana Civil Code, the Fifth Circuit Court discussed what it considered to be the proper interpretation of "electrical or other installations" in Article 466. The federal court distinguished electrical appliances which could be disconnected by pulling a plug out of a receptacle, such as lamps, toasters, mixers, radios, televisions, record players, etc., and other electrical installations which are "permanently" connected to the interior wiring of the structure, and which cannot be connected without certain knowledge of electricity and electrical wiring.

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Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 1052, 1988 La. App. LEXIS 1658, 1988 WL 65946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-bank-trust-co-v-shel-boze-inc-lactapp-1988.