FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-01142,
DIVISION "M" Honorable Paulette R. Irons, Judge
C. O'Bryon O'BRYON & SCHNABEL, PLC, COUNSEL FOR
PLAINTIFF/APPELLEE, AP INTERIORS LLC
N. Shields Michael S. Blackwell Jessica R. Derenbecker,
COUNSEL FOR DEFENDANTS/APPELLANTS, ROY ANDERSON CORPORATION,
AND TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Regina Bartholomew-Woods
F. LOVE JUDGE.
appeal arises from a lien placed on a high-rise building by
an unpaid material supplier after the termination of the
remodeling/construction project. The general contractor
utilized a surety to secure a lien release to free the
building's title. The material supplier then filed suit
for the monies due. Subsequently, the material supplier filed
a motion for summary judgment against the general contractor
and surety for the unpaid balance. The trial court found that
the lien was valid and granted the motion for summary
judgment, casting the general contractor and surety liable
for the unpaid balance.
general contractor and surety appealed contending that the
material supplier failed to comply with the notice of
nonpayment requirements contained in the Public Works Act and
that genuine issues of material fact remained.
res nova interpretation of La. R.S. 9:4802(G)(3)
finds that the material supplier was required to give notice
of nonpayment to the owner and general contractor. We find
that the material supplier failed to meet its burden of proof
on the motion for summary judgment, as it lacked evidence of
notice. Accordingly, we reverse the motion for summary
judgment granted by the trial court and remand for further
BACKGROUND AND PROCEDURAL HISTORY
Baronne Street ("project") in New Orleans, a 549,
746 square-foot property, was renovated and reconstructed.
Roy Anderson Corporation ("RAC") was the general
contractor on the project. RAC subcontracted with Ronald
Franks Construction Company, LLC ("RFC"). RFC then
sub-subcontracted its work to Coryell County Tradesmen, LLC
("CCT"). CCT purchased materials for the project
from material supplier, AP Interiors, LLC d/b/a The Paint
Store ("AP"). CCT allegedly failed to pay AP for
approximately $40, 236.45 in materials.
result, AP filed a Statement of Claim and Privilege
("lien") for $41, 443.23 in unpaid materials. RAC
obtained a bond from Travelers Casualty and Surety Company of
America ("Travelers") to remove the lien and clear
title to the project. Subsequently, AP filed a petition
against CCT, RFC, National American Insurance Company
("National"), RAC, and Travelers, seeking the
unpaid principal balance plus attorney's fees and costs.
filed a Motion for Summary Judgment against RAC and Travelers
contending that no genuine issues of material fact existed
and that it was entitled to recover $40, 236.45. Following a
hearing, the trial court found that AP's lien was valid.
The trial court granted AP's Motion for Summary Judgment
and cast RAC and Travelers in judgment for $40, 236.45, plus
interest from the date of the demand until paid. RAC and
Travelers' suspensive appeal followed.
Travelers contend that the trial court erred by failing to
apply La. R.S. 9:4802(G)(3) and because AP failed to meet the
burden of proof on summary judgment.
courts review the grant of a motion for summary judgment
using the de novo standard of review. Descant v.
Herrera, 03-0953, p. 8 (La.App. 4 Cir. 12/22/04), 890
So.2d 788, 793. "Appellate courts are to review summary
judgments de novo under the same criteria that
govern the district court's consideration of whether
summary judgment is appropriate." Id.
summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of actions."
Carter v. Baver, 02-0765, p. 2 (La.App. 4 Cir.
5/29/02), 821 So.2d 496, 498. "The summary judgment
procedure is favored and shall be construed to accomplish
these ends." Id. "[A] motion for summary
judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue as