Byron Montz, Inc. v. Conco Construction, Inc.

824 So. 2d 498, 2002 La.App. 4 Cir. 0195, 2002 La. App. LEXIS 2443, 2002 WL 1751241
CourtLouisiana Court of Appeal
DecidedJuly 24, 2002
DocketNo. 2002-CA-0195
StatusPublished
Cited by10 cases

This text of 824 So. 2d 498 (Byron Montz, Inc. v. Conco Construction, 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
Byron Montz, Inc. v. Conco Construction, Inc., 824 So. 2d 498, 2002 La.App. 4 Cir. 0195, 2002 La. App. LEXIS 2443, 2002 WL 1751241 (La. Ct. App. 2002).

Opinion

hPATRICIA RIVET MURRAY, Judge.

This is an action by a subcontractor against the owner to recover the balance due on the subcontract for work performed under a construction contract. The subcontractor failed to preserve its claim and privilege under the Private Works Act, La. R.S. 9:4801-55, by timely filing its statement of claim within the applicable sixty-day period under La. R.S. 9:4822(C). The issues presented by this appeal are whether the owner’s failure to give notice of substantial completion to the subcontractor as required by La. R.S. 9:4822(L) resulted in either an extension of the time for the subcontractor to file its statement of claim or gave rise to a separate cause of action outside the scope of the Private Works Act.

FACTS

In 1999, Internal Medicine Specialist, Inc. (IMS) contracted with Conco Construction Co., a general contractor, to renovate its medical office suite in New Orleans, Louisiana.1 Conco then contracted with Bryon Montz, Inc., a painting subcontractor, to perform certain work on the project, ie., “taping and floating of gypsum board, painting, and vinyl wall covering.”

| ¡^Invoking the special notice provision in La. R.S. 9:4822(K), Montz timely sent IMS a Notice of Work Performed on December 14; 1999, which IMS received the next day. Montz claims that it therefore expected to receive from IMS a notice of substantial completion. Although on March 14, 2000, IMS recorded both a Notice of Contract and a Certificate of Substantial Completion with the Orleans Parish recorder of mortgages, IMS acknowledges that it failed to give notice to Montz as required by La. R.S. 9:4822(L) of its Filing of Notice of Substantial Completion.

In early 2000, Montz completed all the work under its subcontract and billed Con-co for $30,474.20. In August 2000, Conco paid Montz $10,000, leaving an outstanding balance owed of $20,474.20. On January 4, 2001, Montz filed a lien affidavit or statement of claim purportedly pursuant to La. R.S. 9:4822. Seeking to recover the outstanding balance due for its work, Montz [500]*500filed this lawsuit on April 30, 2001, naming as defendants both IMS and Conco.2

On June 11, 2001, IMS filed an exception of no cause of action and motion for summary judgment. IMS claimed that Montz failed to perfect a valid claim against it because Montz’s statement of claim was not filed timely, i.e., within the thirty or sixty day periods set forth in La. R.S. 9:4822(A) or (C), respectively.

In support of its summary judgment motion, IMS submitted an affidavit of its administrator, Rita Latour. Ms. Latour attested that on March 14, 2000, IMS filed the Certificate of Substantial Completion and, at that time, the work performed under the contract was substantially complete. Ms. Latour further attests that IMS made full and final payment to the contractor, Conco, on August 1, 2000. | aAttached to Ms. Latour’s affidavit was a “lien and privilege certificate” dated May 18, 2000, issued by the Recorder of Mortgages for Orleans Parish. The lien and privilege certificate stated that both the contract and the Certificate of Substantial Completion were filed in the public records on March 14, 2000 and documented that no liens were filed within sixty days from the Certificate of Substantial Completion. IMS thus contended that the statement of claim Montz filed on January 4, 2001 clearly was untimely under either the thirty or sixty day periods of La. R.S. 9:4822(A) and (C) and that Montz had no valid claim against IMS under the Private Works Act. Moreover, it contended that given the lack of contractual privity between Montz and IMS, any liability of IMS to Montz must arise out of that Act.

On October 26, 2001, the trial court granted summary judgment in IMS’ favor, dismissing Montz’s petition against IMS with prejudice. In its oral reasons for judgment, the court stated that Montz, as a subcontractor, had no claim and no privilege against IMS, as owner, unless Montz properly and timely filed a statement of claim pursuant to La.R.S. 9:4822. Particularly, the trial court stated that “[a] subcontractor, like plaintiff, has no claim whatsoever and thus no privilege against the defendant owner unless the subcontractor has properly and timely filed a statement of claim as required by Revised[d] Statute 9:4822.” The trial court found that there was no genuine issue of material fact regarding Montz’s failure to timely and properly file its statement of claim. In so finding, the court noted that the record demonstrates that:

• The construction work was substantially completed on January 8, 2000.
• The Lien and Privilege Certificate issued by the Recorder of Mortgages on May 18, 2000, shows that the contract itself and the Certificate of Substantial Completion were both filed on March 14, 2000.
14* IMS made full and final payment to contractor Conco on August 1, 2000.
• Plaintiff admittedly filed its statement of claim, that is its Lien Affidavit, on January 4, 2001, almost eight (8) months after IMS filed the notice of contract on March 14, 2000.

The trial court thus reasoned that pursuant to La. R.S. 9:4822(A), Montz had thirty days to file its statement of claim and failed to do so.3 In response to [501]*501Montz’s argument that it nonetheless had a claim because IMS failed to comply with La. R.S. 9:4822(K) and (L), the trial court reasoned that those provisions only apply when a statement of claim is timely filed. The trial court further reasoned that those provisions cannot be read in isolation, but rather must be read in context with “the statute in its totality.” The court thus concluded that summary judgment was proper.

Montz appeals from that judgment. Despite its failure to file its statement of claim timely, Montz claims that is has two claims against IMS: (1) a claim and privilege under the Private Works Act for the unpaid balance, and (2) a claim outside the Act for costs and attorney’s fees in pursuing its claims and privileges against IMS and Conco.

ANALYSIS

On appeal, the standard of review of a trial court’s decision granting summary judgment is de novo. Shelton v. Standard/700 Associates, 2001-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65; Doerr v. Mobil Oil Corp., 2000-0947, p. 27 (La.12/19/00), 774 So.2d 119, 136; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The questions we ask are the same as those the trial court asked; to wit: whether there is any genuine issue of material fact, and whether the mover-appellee is entitled to judgment as a matter of law. In answering these questions, we are guided by the Legislature’s admonition that “[t]he summary judgnent procedure is designed to secure the just, speedy, and inexpensive determination of every action” and that “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C. Civ. Pro. art. 966(A)(2).

The dispute in this case is not a factual, but a legal one. The parties do not contest the facts, but rather the consequences that result from an owner’s failure to comply with the special notice provision the Legislature added in 1988. to La. R.S. 9:4822(K) and (L), which apparently have never been judicially construed. The provisions provide:

K. (1) Any person to whom a privilege is granted by R.S. 9:4802 may give notice

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824 So. 2d 498, 2002 La.App. 4 Cir. 0195, 2002 La. App. LEXIS 2443, 2002 WL 1751241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byron-montz-inc-v-conco-construction-inc-lactapp-2002.