Executive House Building, Inc. v. Demarest

248 So. 2d 405
CourtLouisiana Court of Appeal
DecidedMay 10, 1971
Docket4434
StatusPublished
Cited by14 cases

This text of 248 So. 2d 405 (Executive House Building, Inc. v. Demarest) 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
Executive House Building, Inc. v. Demarest, 248 So. 2d 405 (La. Ct. App. 1971).

Opinion

248 So.2d 405 (1971)

EXECUTIVE HOUSE BUILDING, INC.
v.
Francis J. DEMAREST, Sr., Recorder of Mortgages, and Otis Elevator Company.

No. 4434.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1971.

*406 Mmahat, Gagliano, Duffy & Giordano, Peter E. Duffy, Metairie, for plaintiff-appellant, Executive House Building, Inc.

John M. Holahan, New Orleans, for defendant-appellee, Francis J. Demarest, Sr., Recorder of Mortgages.

Drury, Lozes & Curry, James H. Drury, New Orleans, for defendant-appellee, Otis Elevator Co.

Before SAMUEL, GULOTTA and STOULIG, JJ.

GULOTTA, Judge.

In this action, plaintiff-appellant, Executive House Building, Inc., seeks a writ of mandamus directed against Francis J. Demarest, Sr., Recorder of Mortgages, to cancel and erase from the Mortgage Records for the Parish of Orleans, a written contract entered into between Executive House Building, Inc., and Medallion Realty, Inc., and defendant-appellee, Otis Elevator Company, and to further cancel a Lien Affidavit filed and recorded by defendant. Both inscriptions presently encumber immovable property and improvements owned by plaintiff.

*407 The facts are that Executive House Building, Inc., a Louisiana Corporation, is the owner of the Executive House Building located at Baronne and Perdido Streets in the City of New Orleans and formerly known as the Old Delta Building. Executive House sought to remodel by making general renovations and adding a new floor or seventh floor to the existing six-story structure. To accomplish this renovation, it was necessary to change the old elevators and remove the original elevator machinery before the remodeling took place above the sixth floor. The new elevators and overhead mechanisms were to be located above the newly added seventh floor.

On July 11, 1968, Executive House and Medallion Realty entered into a written contract with defendant in which Otis agreed to the following:

"We propose to furnish and erect the elevator installation described in the foregoing specifications for the sum of $49,665.00 * * *" (Emphasis added.)

The contract contemplated the installation of two elevators. Subsequently, Executive House Building, Inc., entered into a building contract with Fidelity Development Corp., on August 21, 1968, for certain renovations and the addition of a floor to the existing building, which contract was recorded, accepted, and finally canceled on March 11, 1969.

A fire occurred at the building on April 22, 1969. A second contract was then executed between the owner, Executive House Building, Inc., and Fidelity Development Corp., on July 1, 1969, for repairs of fire damage and further renovation, which contract was recorded and accepted.

After Fidelity Development Corp. had added the new seventh floor and plans were made to house the new elevator to be located above, Otis worked on the installation. The first elevator was accepted by the owner, Executive House Building, Inc., on April 16, 1969. On January 21, 1969, Otis Elevator sent a bill to Medallion Realty, Inc. for 70 percent of the contract price as per agreement which amount was $34,765.50, for furnishing and installing two elevators. Charles Pumilia, as representative of Fidelity Development Corp., wrote a letter dated March 28, 1969, to Otis saying Fidelity was being delayed in their completion of other work and asking Otis to complete the contract without further delay so as to enable Fidelity to meet its commitment.

In reply to Fidelity Development Corp.'s letter, Otis agreed on April 3, 1969, to accept the 70 percent payment of the total contract price in two stages with the remaining portion of the total contract to be due upon completion of the entire elevator system. The following day, April 4, 1969, Otis billed Medallion for the amount due under the compromise agreement which was $24,832.50. A telegram from the Dallas Office of Otis Elevator confirmed the figure.

Executive House responded by sending a check to Otis for $24,832.50 on April 25, 1969. However, the check bore a notation declaring insufficient funds on deposit and that on or about April 27, 1969, that check would be replaced by another and that no criminal intent could be construed from non-payment on presentation. Otis never received the due payment. The fire at the building had occurred on April 22, 1969, after which Otis filed a lien dated July 25, 1969, and recorded July 29, 1969, which lien was in the amount of the original contract price of $49,665.00. The lien was never paid.

The trial court overruled all exceptions filed by Otis in the mandamus suit other than the exception of no right of action which was referred to the merits. A hearing was held on January 16, 1970. The trial court after hearing evidence refused to grant the writ of mandamus insofar as the mandamus proceeding relates to the cancellation *408 of the lien affidavit.[1] In his written reasons for judgment the trial judge stated:

"The Court's refusal to grant the mandamus and cancel the lien filed by Otis Elevator Company was based upon the fact that the evidence satisfied the Court that Otis Elevator Company was not the General Contractor in its performance of the contract which it entered into with plaintiff, Executive House Building, Inc.
"Either the owner, Executive House Building, Inc., acting directly and through its claimed agent, Medallion Realty, Inc., or Fidelity Development Corp., was actually the General Contractor * * * Under the circumstances there was no obligation on Otis's part to file its contract. Its doing so would merely have the effect of substantiating its claim for which it was claiming a lien and privilege.
"The Court further found that Otis's contract could not be completed, either due to the fire which took place or to the fact that that work which had to be done by others (other than Otis), in order for Otis to install the elevators, was not done, and the building itself was not completed as evidenced by the fact that a contract for completing the building was entered into on July 1, 1969. Otis's lien, filed on July 29, 1969, was therefore timely filed. (See National Homestead Ass'n vs. Graham, [176 So. 1062] 147 So. 348)"

The issue before us is whether the trial judge committed manifest error in finding that Otis was not the general contractor.

The significance of the issue is that it is the classification of the status of Otis Elevator which determines the applicable provision of the Louisiana Private Works Law (LSA-R.S. 9:4801 et seq.) and thus determines whether or not defendant's lien was properly and timely preserved. A determination that Otis is a contractor makes applicable the provision of LSA-R.S. 9:4812 providing for the preservation of a lien by the recordation of a lien affidavit. A determination that Otis was a general contractor would make applicable the provision of LSA-R.S. 9:4802 which provides for the preservation of the lien by the recordation of the contract.

Appellant, Executive, contends that defendant is a general contractor and is governed by LSA-R.S. 9:4802 which reads in part as follows:

"Every contract hereafter entered into for the repair, reconstruction, erection, construction, or improvement of any work on immovable property by any undertaker, general contractor master mechanic, or engineer, or other person undertaking such general contract with the owner or his authorized agent or representatives, shall be reduced to writing,

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Bluebook (online)
248 So. 2d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/executive-house-building-inc-v-demarest-lactapp-1971.