LeBlanc & Theriot Equipment Co. v. H & S Construction Co.

591 So. 2d 1274, 1991 La. App. LEXIS 3440, 1991 WL 273340
CourtLouisiana Court of Appeal
DecidedDecember 18, 1991
DocketNo. 90-664
StatusPublished

This text of 591 So. 2d 1274 (LeBlanc & Theriot Equipment Co. v. H & S Construction Co.) 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
LeBlanc & Theriot Equipment Co. v. H & S Construction Co., 591 So. 2d 1274, 1991 La. App. LEXIS 3440, 1991 WL 273340 (La. Ct. App. 1991).

Opinions

FORET, Judge.

This is an action arising under the Public Works Act (La.R.S. 38:2241 et seq.). Le-Blanc & Theriot Equipment Company (Le-Blanc), plaintiff and appellant herein, appeals from a grant of summary judgment in favor of the City of Lafayette (City) and the grant of an exception of prescription in favor of St. Paul Fire & Marine Insurance Company (St. Paul).1 After granting defendants-appellees’ motion for summary judgment and exception of prescription, the trial court dismissed these defendants and ordered that the Clerk of Court for the Parish of Lafayette, Louisiana, erase two liens filed by LeBlanc from its mortgage records. We affirm the judgment of the trial court.

FACTS

Pursuant to a construction contract entered into between the City and H & S, H & S secured a performance bond from St. Paul. On June 3, 1988, the City filed an acceptance of work into the public records. Approximately one month later, LeBlanc, a supplier of materials, filed two statements of claim and privilege totaling $18,604.88. [1276]*1276On July 28, 1988, the City obtained two release of lien bonds from H & S to cover LeBlanc’s outstanding claims. Subsequent thereto, the City made final payment to H & S without deducting the amount of plaintiff’s claims. On July 7, 1989, LeBlanc filed suit to recover the amount of its claims.

In response, St. Paul filed a peremptory exception of prescription of one year based upon La.R.S. 38:2247 insofar as LeBlanc did not file its suit within one year of the recordation of the acceptance of work.

The City filed a motion for summary judgment on the basis that, prior to final payment to H & S, the contractor, it had obtained a bond to cover the total amount of all outstanding claims and therefore, was released from any liability for unpaid claims pursuant to La.R.S. 38:2242(D). ■

EXCEPTION OF PRESCRIPTION

La.R.S. 38:2247 states, in pertinent part:

“Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the notice and recordation requirements of R.S. 38:2242(B), of his right of action on the bond furnished pursuant to this Part, provided that said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work....”

The City’s acceptance of the work was filed on June 3, 1988, and LeBlanc’s suit was instituted on July 7, 1989, more than one year later. Therefore, LeBlanc’s action against St. Paul on the performance bond has prescribed. See D & J Const. Co., Inc. v. Mid-Continent Stone Co., 571 So.2d 762 (La.App. 2 Cir.1990).

LeBlanc argues that because a notice of lis pendens was filed on July 7, 1989, less than one year from the date of recordation of its claims, July 11,1988, the exception of prescription should have been dismissed. In support, LeBlanc relies upon La.R.S. 38:2242.1(F), which states, in pertinent part:

“The effect of filing for recordation of a statement of claim or privilege and the privilege preserved by it shall cease as to third persons unless a notice of lis pen-dens identifying the suit is filed within one year after the date of filing the claim or privilege.”

LeBlanc argues that its action was timely filed insofar as it filed suit and recorded a notice of lis pendens within one year after the filing of its claim or privilege.

We find no merit to this contention. The purpose behind a notice of lis pendens is simply to place third persons on notice of the pendency of an action. It is not designed to cure a procedural defect such as prescription. LeBlanc’s failure to institute an action within one year from the registry of the City’s acceptance of work preempts LeBlanc from exercising its right on the bond furnished pursuant to the Public Works Act. See Honeywell, Inc. v. Jimmy B. Guinn, Inc., 462 So.2d 145 (La.1985);2 D & J Construction Co., Inc. v. Mid-Continent Stone, Co., supra. Thus, we affirm the trial court’s grant of St. Paul’s exception of prescription.

MOTION FOR SUMMARY JUDGMENT

La.R.S. 38:2242(D) states:

“When an awarding authority makes final payment to the contractor without deducting the total amount of all outstanding claims so served on it or without obtaining a bond from the contractor to cover the total amount of all outstanding claims, the awarding authority shall become liable for the amount of these claims.”

Pursuant to this statute, the City would be liable for LeBIanc's claim if it had made final payment to H & S without either deducting the amount of LeBlanc’s claim [1277]*1277or obtaining a bond from the contractor to cover the total amount of LeBlanc’s claim.

In support of its motion for summary judgment, the City submitted the affidavit of T. Gerald Hanchey, President of H & S Construction Company, Inc., together with copies of the two bonds obtained from the contractor on July 28, 1988, which covered the total amount of LeBlanc’s claims. It is undisputed that the two bonds were obtained by H & S, with St. Paul as surety, and that these bonds were in an amount sufficient to cover LeBlanc’s claims.

LeBlanc contends that the bonds obtained by the City were ineffective in releasing it from liability for LeBlanc’s claims because the procedures set forth, as follows, in La.R.S. 9:4941 were not followed:

“When any contractor shall have entered into a contract to perform public works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereof, the contractor shall have the right to bond any claim or claims which may be filed or recorded against said work by depositing with the clerk of court of the parish in which such claims are filed or recorded a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.”

Specifically, LeBlanc alleges that the lien release bonds obtained by the City through H & S were not valid because they were not properly filed and approved by the Clerk of Court. Additionally, LeBlanc alleges that it was never notified of the filing of the lien release bonds as required by the United States Supreme Court in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

LeBlanc’s contention regarding notice was neither argued nor passed upon in the trial court. Nevertheless, we find that no right to notice under Mennonite, supra, was violated by the City’s acquisition of the lien release bonds insofar as the bonds were merely a form of security substituted for LeBlanc’s claims against the funds held by the City. The acquisition of the bonds resulted in no substantive change in the status of LeBlanc’s claim or privilege.

The trial court found La.R.S. 9:4941 inapplicable to the City of Lafayette for the purposes of this motion for summary judgment.

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Related

Mennonite Board of Missions v. Adams
462 U.S. 791 (Supreme Court, 1983)
Honeywell, Inc. v. Jimmie B. Guinn, Inc.
462 So. 2d 145 (Supreme Court of Louisiana, 1985)
Brunet v. Justice
266 So. 2d 451 (Supreme Court of Louisiana, 1972)
Brunet v. Justice
264 So. 2d 743 (Louisiana Court of Appeal, 1972)
D & J Construction Co.v. Mid-Continent Stone Co.
571 So. 2d 762 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 1274, 1991 La. App. LEXIS 3440, 1991 WL 273340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leblanc-theriot-equipment-co-v-h-s-construction-co-lactapp-1991.