Federal Nat. Bank & Trust Co. v. Calsim, Inc.

340 So. 2d 611
CourtLouisiana Court of Appeal
DecidedMarch 11, 1977
Docket7692
StatusPublished
Cited by13 cases

This text of 340 So. 2d 611 (Federal Nat. Bank & Trust Co. v. Calsim, 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
Federal Nat. Bank & Trust Co. v. Calsim, Inc., 340 So. 2d 611 (La. Ct. App. 1977).

Opinion

340 So.2d 611 (1976)

The FEDERAL NATIONAL BANK AND TRUST COMPANY OF SHAWNEE
v.
CALSIM, INC., et al.

No. 7692.

Court of Appeal of Louisiana, Fourth Circuit.

November 16, 1976.
Rehearing Denied January 12, 1977.
Writs Refused March 11, 1977.

*612 William P. Stahl, New Orleans, and Cook, Clark, Egan, Yancy & King, James Robert Jeter, Shreveport, for plaintiff-appellee, The Federal Nat. Bank & Trust Co. of Shawnee.

Mollere, Flanagan, Arceneaux & Hardin, James S. Arceneaux, Metairie, for Standard Title Ins. Co., appellee.

Usry & Leefe, Richard K. Leefe, New Orleans, for Howard H. Walker, Trustee.

Lemle, Kelleher, Kohlmeyer & Matthews, C. Murphy Moss and William Penick, New Orleans, for International Title Agency, Jacob Senter and St. Paul Fire & Marine, appellee.

McCollister, Belcher, McCleary & Fazio, Thomas R. Elkins, Baton Rouge, for Leslie Henry Day, defendant-appellant.

Bernhardt C. Heebe, New Orleans, for Brady Steel Co., Inc., defendant-appellant.

Henry L. Klein, New Orleans, for General Elec. Co., defendant-appellant.

Maurice D. Armagnac, Metairie, for Dura-Tuft Carpets, Inc., La. Lightweight Inc., Ben C. Baldwin Contractor, Inc., Armond Delle, Jr., d/b/a Town & Country Landscaping, Enterprise Elec. Inc., defendants-appellants.

Molony, Nolan, North, Reiss & Hall, Bruce A. North, New Orleans, for Enterprise Elec., Inc., defendant-appellant.

T. M. McBride, III, Chalmette, for Bolton Plumbing Supply Co., Inc., defendant-appellant.

Before SAMUEL, STOULIG and SCHOTT, JJ.

*613 SAMUEL, Judge.

This concursus proceeding was filed by The Federal National Bank and Trust Company of Shawnee against Calsim, Inc. seeking recognition of its mortgage rights to the extent of $5,245,914.71 against property upon which Calsim, Inc. had partially completed an apartment complex on real estate in Jefferson Parish. Plaintiff made defendants numerous subcontractors and material men who claim liens and privileges against the real estate superior in rank to plaintiff's mortgage.[1] Also named as defendants were Howard H. Walker, Trustee, who purchased the property "subject to" plaintiff's mortgage, and Standard Title Insurance Company under its title insurance agreement which allegedly insured the mortgage as a first lien and privilege against the subject property. As relief plaintiff sought judgment casting Calsim, Inc. and Howard H. Walker (the latter in rem) for $5,245,914.71, recognizing and maintaining its mortgage as superior to all other liens and privileges, and alternatively, as against Standard Title Insurance Company, for the amount of all liens and privileges determined by the court to have priority over the mortgage.

After answers had been filed to the concursus petition, the plaintiff bank, Standard Title Insurance Company, and other parties[2] filed a motion against Ben G. Baldwin Contractors, Inc., Brady Steel Company, Inc., Leslie H. Day, Dura-Tuft Carpet Corp., Enterprise Electric, Inc., General Electric, Inc., Georgia-Pacific Corp., Lakeview Plumbing & Heating Co., Inc., Louisiana Lightweight, Inc., Armond Delle, Jr., d/b/a Town & Country Landscaping, and William B. Serant Co., Inc., seeking a summary judgment stating the liens filed by those defendants have either prescribed or perempted. The motion for summary judgment is based on the fact that those defendants had neither filed suit on their liens nor filed a notice of lis pendens in the mortgage office within one year of the recordation of their liens.

The trial judge granted the motion for summary judgment against all defendants named therein except William B. Serant Co., Inc. and ordered the recorder of mortgages for the Parish of Jefferson to cancel from his records the liens filed by the other defendants in motion.

Various defendants have appealed.[3] Appellees have filed an answer to the appeals seeking amendment of the trial court's judgment to change the spelling of numerous names and to correct the property description as those names and description appear therein.

The primary issue presented is whether the appellant lien holders lost their liens by not filing a suit independent of the concursus proceeding and by failing to record a notice of lis pendens in accordance with R.S. 9:4812. A subsidiary issue is the validity of a notice of lis pendens timely filed *614 with the recorder of mortgages but not recorded in the mortgage records.

The relevant portion of R.S. 9:4812 reads:
"The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall perempt unless a notice of filing of a suit (giving the name of the court, the title and number of the proceedings, and date of filing, a description of the property and a reference to the recorded claim), on said claim is recorded within one year from the date of the recordation of the inscription of said claim." LSA-R.S. 9:4812.

The statute is clear that timely recording the claim (which was done by all appellants) is not sufficient to preserve the lien; the additional requirements of filing suit and filing a notice of lis pendens within one year of recording the claim must be met to prevent peremption. The statutory language of peremption shows the importance of failure to file an appropriate suit or to record a notice of lis pendens. The general rule is that statutes of prescription merely bar recovery, but statutes of peremption totally extinguish a cause of action.[4] Because lien statutes are strictly construed,[5] the technical requirements of R.S. 9:4812 must be met.

Literal compliance with the provisions of R.S. 9:4812 creates problems for a lien holder made defendant in a concursus proceeding when, as in the present case, no contract or bond for the work has been recorded under R.S. 9:4802. Revised Statute 9:4804 sets forth a statutory concursus procedure established by the legislature to deal with ranking of liens and privileges when there is a recorded contract and bond. Such procedure is not applicable to a lien holder under R.S. 9:4812 because that statute applies to situations where there is an absence of contract and bond. Consequently, a concursus proceeding under R.S. 9:4812 must be filed pursuant to the general concursus provisions of Code of Civil Procedure Articles 4651-4662.

Code of Civil Procedure Article 4656 provides each defendant in a concursus proceeding is considered both a plaintiff and a defendant with respect to all other parties. Moreover, being placed under the provisions of the concursus statute, any separate suit filed under R.S. 9:4812 to assert a privilege is subject to being enjoined by the provisions of Code of Civil Procedure Article 4660. Consequently, under the limited circumstances of this case, we hold an answer filed in a proceeding under the concursus provisions of the Code of Civil Procedure is equivalent to a suit under R.S. 9:4812 and satisfies that portion of the statute requiring the filing of suit to prevent peremption.[6] As all appellants filed such answers within the one year time period, they have effectively "filed suit" within the contemplation of that requirement as contained in the statute.

Provision for filing a notice of lis pendens is specifically spelled out in the above quoted R.S. 9:4812.

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Bluebook (online)
340 So. 2d 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-nat-bank-trust-co-v-calsim-inc-lactapp-1977.