Gauguin, Inc. v. Addison

288 So. 2d 893, 1973 La. App. LEXIS 6268
CourtLouisiana Court of Appeal
DecidedDecember 17, 1973
DocketNo. 9625
StatusPublished
Cited by14 cases

This text of 288 So. 2d 893 (Gauguin, Inc. v. Addison) 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
Gauguin, Inc. v. Addison, 288 So. 2d 893, 1973 La. App. LEXIS 6268 (La. Ct. App. 1973).

Opinion

SARTAIN, Judge.

This is a mandamus proceeding instituted by Gauguin, Inc. against Alsay Addison, Clerk of Court of Livingston Parish, John W. Spring and Spring’s Thunder Agency, Inc. wherein relator seeks to obtain an order directing the Clerk of Court to cancel and erase from the mortgage records of Livingston Parish a lien filed by John W. Spring and Spring’s Thunder Agency, Inc.

The lien in question was filed on February 23, 1973. Said lien is in the form of an affidavit wherein John W. Spring alleges that Gauguin, Inc. is indebted unto him in the amount of $71,260.00 for work, labor and services allegedly performed by John W. Spring and Spring’s Thunder Agency, Inc. on certain immovable property owned by Gauguin, Inc. in Livingston Parish. Subsequent to the filing of this lien Gauguin, Inc. filed suit on March 7, 1973 against John W. Spring and Spring’s Thunder Agency, Inc. seeking cancellation of the lien. On May 17, 1973 John W. Spring and Spring’s Thunder Agency, Inc. filed a suit against Reed Erickson and Gauguin, Inc. seeking recovery of the amounts allegedly due and represented by the lien. These two suits were consolidated for trial and are apparently still pending in the district court.

Our decision in this cause in no way affects the rights of John W. Spring and Spring’s Thunder Agency, Inc. on quantum meruit, upon a showing of the value of services allegedly rendered Gauguin, Inc. The essence of respondents’ claims here are that they are entitled to the real estate commissions they would have earned had they remained the exclusive agents for the sale of the lots within the subdivision.

On June 4, 1973, Gauguin, Inc. filed this suit for writ of mandamus seeking to compel erasure and cancellation of the lien. The trial court issued alternative writs directing respondents to either cancel the lien or show cause why the lien should not be cancelled. On June 7, 1973, John W. Spring and Spring’s Thunder Agency, Inc. filed a declinatory exception of lis pendens and a peremptory exception of res judica-ta. Hearing on the rule to show .cause and on the exceptions was held on June 22, 1973. The trial court rendered judgment in favor of respondents and dismissed relator’s suit. From that judgment Gauguin, Inc. brings this suspensive appeal.

Relator contends that the trial court erred in dismissing its suit and argues that the lien should be ordered cancelled because John W. Spring and Spring’s Thunder Agency, Inc. are not persons entitled to a lien under the provisions of L.R.S. 9:4801. In the alternative, relator asserts that said ljen was not timely filed.

Respondents contend initially that the exception of lis pendens should have been maintained and relator’s suit dismissed on the grounds that another suit between the same parties, on the same cause of action and having the same object as the present suit was and is still pending in the same court.

The trial judge did not assign oral or written reasons for judgment. Neither the minute entries in the record nor the judgment dismissing relator’s suit mentions any ruling on the exceptions. Therefore, we must review the record in its entirety in order to ascertain whether or not the result reached by the district court is in itself manifestly erroneous. Martin v. Farkas, 241 So.2d 272 (1st La.App.1970).

C.C.P. Articles 3862 and 3863 provide that the writ of mandamus may be issued in all cases where the delay in obtaining ordinary relief may cause injustice. Mandamus has been held to be the proper remedy for compelling a recorder of mortgages to cancel or erase an illegal or unauthorized inscription. Realsco, Inc. v. Green Acres Civic Association, 169 So.2d 570 (4th La.App.1964); State ex rel. Bond v. Register of Conveyances, 162 La. 362, 110 So. 559 (1926). It has also been observed that since an improper or illegal lien recorded against immovable property [895]*895will hamper the owner in efforts to encumber or sell the property, it would be an injustice to require the owner in all such cases to await the outcome of ordinary proceedings to cancel the lien. State ex rel. Henry v. 8 — Mile Post Plumbing Supplies, Inc., 63 So.2d 749 (Orl.App.1953). Accordingly, we do not find mandamus precluded herein by the pendency of the other suits concerning this lien. See: State ex rel. Metropolitan Land Co. v. Recorder of Mortgages, 166 La. 271, 117 So. 145 (1928).

As to the merits of the case, relator asserts that John W. Spring and Spring’s Thunder Agency, Inc. are not persons entitled to a lien under L.R.S. 9:4801.- That statute provides in pertinent part as follows :

“A. Every contractor, subcontractor, architect, engineer, registered land surveyor, master-mechanic, mechanic, cart-man, truckman, workman, laborer or fur-nisher of material, machinery or fixtures, exclusive of anyone who rents or leases movable property, who performs work or furnishes material for the erection, construction, repair or improvement of immovable property, or who furnishes material or supplies for use in machines used in or in connection with the erection, construction, repair or improvement of any building, structure or other immovable property, with the consent or at the request of the owner thereof, or his authorized agent or representative or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such work or labor performed, or the materials, machinery or fixtures furnished, and for the cost of recording such privilege, upon the land and improvements on which the work or labor has been done, or the materials, machinery or fixtures furnished.”

On the other hand, respondents contend that they are persons entitled to a lien under the statute and specifically emphasize that portion of the statute granting a lien to the workman or laborer who has performed work on immovable property.

In order to ascertain if respondents are persons entitled to a lien we must attempt to characterize the nature of the work allegedly performed by them on the property and determine in what capacity said work was performed.

The deposition of John W. Spring was entered in evidence in the trial court and is a part of this record. John W. Spring characterized his business as follows:

“Q. I see. Now what is your educational background?
A. High school.
Q. You are not an engineer and architect?
A. No.
Q. And you’ve never held yourself out as an engineer and architect ?
A. No.
Q. Are you a contractor ?
A. Certain — I’m affiliated with certain aspects of contracting, such as building a house, taking a bid, and then letting another contractor build the house; in other words, subcontracting, but I only did that on a couple of occasions.
Q. Well, would you say that you have been a speculative builder in a sense ?
A. Not in the sense that you would call me a builder; primarily real estate solely. I resisted the building because it’s too many headaches.
Q. In other words, basically you make your living on real estate commissions.
A. That’s correct, buying and selling, and developing subdivisions.”

[896]*896Mr.

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Bluebook (online)
288 So. 2d 893, 1973 La. App. LEXIS 6268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gauguin-inc-v-addison-lactapp-1973.