Stine, Inc. v. Perkins

540 So. 2d 1195, 1989 La. App. LEXIS 455, 1989 WL 22857
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
DocketNo. 87-1380
StatusPublished

This text of 540 So. 2d 1195 (Stine, Inc. v. Perkins) 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
Stine, Inc. v. Perkins, 540 So. 2d 1195, 1989 La. App. LEXIS 455, 1989 WL 22857 (La. Ct. App. 1989).

Opinion

KING, Judge.

This appeal presents for our consideration the issues of whether plaintiff is entitled to a materialman’s lien, whether plaintiff is entitled to statutory attorney’s fees for the successful collection of an open account, and whether one of the defendants is entitled to judgment on his reconventional demand.

Stine, Inc., d/b/a Stine Lumber Company (hereinafter Stine) filed suit seeking to obtain a solidary money judgment against L.E. Perkins, d/b/a Perkins Construction Company (hereinafter Perkins) and William P. Ray (hereinafter Ray) and to have recognized Stine’s materialman’s lien on immovable property owned by Ray.

Stine alleged in its petition that it had furnished building materials to Perkins on open account, for use in the construction of improvements on property owned by Ray, and that charges totalling $4,033.80 remained unpaid for which defendants were solidarily liable. The suit also sought legal interest on all amounts due and attorney’s fees for collection of the open account. Stine further alleged that it had timely recorded its materialman’s lien within sixty days after the completion of work on Ray’s property, thus creating an enforceable ma-terialman’s lien upon Ray’s property, and sought recognition of this lien. Perkins answered and reconvened for damages in the amount of $7,500.00 alleging that a portion of the building materials sold to him by Stine had been defective and that his use of this defective building material had caused him to incur expenses to replace the defective material and damaged his reputation as a contractor. Ray filed an answer of general denial and a cross claim against Perkins seeking indemnity for any amount which he might be cast in judgment to Stine.

After trial on the merits, judgment was rendered on the main demand in favor of Stine and against Perkins in the sum of $4,033.80 and in favor of Ray and against Stine, dismissing Stine’s demand against Ray for a money judgment and for recognition of a materialman’s lien on Ray’s property. Stine’s claim for attorney’s fees was also denied. Judgment was rendered in the sum of $2,200.00 in favor of Perkins and against Stine on the reconventional demand. Ray’s cross claim and all other claims were denied and court costs were taxed equally to Stine and Perkins. Stine filed a timely devolutive appeal. Neither Perkins nor Ray appealed or answered the appeal. We affirm in part, reverse in part, amend in part, and render judgment.

PACTS

On April 26, 1984, Ray entered into a contract with his brother-in-law, Perkins, to [1197]*1197have a house constructed for him in Oak-dale, Louisiana. This contract was not recorded. The building materials, including shingles and roofing nails, were purchased by Perkins at the Stine store in DeRidder, Louisiana.

Perkins entered into a subcontract with Mike Carrier, a carpenter/contractor from Oberlin, Louisiana, for the framing of the house and the laying of the plywood decking on the roof. Perkins also entered into a subcontract with Freddie Sonnier, a roofer frequently employed by Carrier, for the completion of the roofing work.

Several days after Sonnier installed the shingles, Perkins examined the roof and informed Carrier he was not going to pay the roofers because the shingles were “coming up.” Carrier attempted to re-nail the shingles on two occasions but was unsuccessful in preventing the roof from leaking. Consequently, Ray refused to accept and occupy his house.

Perkins then contacted Paul Sweeney, a roofer in Oakdale, concerning the problems with the Ray house and asked him to determine if the roof had to be redone. After examining the roof, Sweeney determined that the entire roof had to be replaced because the wrong type of nails were used and the shingles were defective.

Perkins purchased additional roofing materials from Rodney McNeal and Sons, Inc. and Edwards Lumber Co., Inc. to complete the job. Sweeney’s business, A & S Roofing Co., was then employed to remove and replace the original roof. Prior to purchasing the new roofing materials, Perkins asked Stine to give him replacement shingles which Stine refused to do.

Upon completion of the roofing job by A & S Roofing Co., Ray accepted the construction and moved into his house.

Perkins contacted Stine and demanded full restitution for the labor and material cost for the replacement of the roof. When attempts to negotiate a settlement failed, Perkins discontinued paying on his open account with Stine which then had an outstanding balance of $4,033.80.

As a result of Perkins’ refusal to pay his open account, Stine filed a lien against Ray’s property on August 23, 1984 to secure its claim for payment of the materials. Perkins and Ray were notified of the lien by certified letter, dated December 12, 1984, and informed that a suit would be filed if payment was not made within thirty days.

When Stine failed to receive payment, it filed suit on February 22, 1985 seeking a solidary judgment against Perkins and Ray for the amount due on the open account. The suit also sought legal interest, attorney’s fees, and for recognition of Stine’s materialman’s lien upon Ray’s property.

Perkins reconvened against Stine, alleging the nails and shingles sold to him had been defective and, as a result, he had sustained damages of $7,500.00, the cost of replacing the roof and for damages to his reputation as a contractor. Ray filed a cross claim against Perkins to recover the amount of any judgment granted in favor of Stine against him.

A trial on the merits was held on March 24, 1986, and continued until September 19, 1986. After the conclusion of the trial, the matter was taken under advisement.

On May 13,1987, the trial court rendered written reasons for judgment. The trial court found that Stine was entitled to a judgment against Perkins on its open account in the amount of $4,033.80, but denied Stine’s request for attorney’s fees for the reason that “the claim is not of a nature which would warrant attorney fees.” The trial court dismissed Stine’s demand against Ray after concluding Stine’s materialman’s lien was not timely filed. The trial court found that the shingles and roofing nails were defective and that Perkins was entitled to judgment on his reconventional demand against Stine in the sum of $2,200.00. All other demands were denied. A formal written judgment to this effect was read and signed on September 15, 1987.

Stine timely appeals alleging three assignments of error.

[1198]*1198TIMELINESS OF THE LIEN

In its first assignment of error, Stine contends the trial judge erred in concluding its materialman’s lien was not filed timely.

LSA-R.S. 9:4802 provides that sellers have a claim against the owner and a claim against the contractor to secure payment of the obligations arising out of the performance of work under a contract, for the price of movables sold to the contractor or a subcontractor that becomes component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable. LSA-R.S. 9:4802A.(3). The statute further provides that claims against the owner of the property shall be secured by a privilege on the immovable on which the work is performed. LSA-R.S. 9:4802B.

LSA-R.S. 9:4822 provides in pertinent part that:

“C. Those persons granted a claim and privilege by R.S.

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Bluebook (online)
540 So. 2d 1195, 1989 La. App. LEXIS 455, 1989 WL 22857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stine-inc-v-perkins-lactapp-1989.