94-0519 La.App. 4 Cir. 12/15/94, Boes Iron Works, Inc. v. Spartan Bldg. Corp.

• Decision Date: 15 December 1994
• Citation: 648 So.2d 24
• Parties: 94-0519 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 24

648 So.2d 24

94-0519 La.App. 4 Cir. 12/15/94

BOES IRON WORKS, INC. v. SPARTAN BUILDING CORPORATION, Taylor Energy Company and Fidelity and Deposit Company of Maryland.

SPARTAN BUILDING CORPORATION v. BOES IRON WORKS, INC., et al.

Nos. 94-CA-0519, 94-CA-0520.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 15, 1994.

Writ Denied March 10, 1995.

Harold E. Dearie, II, Dearie & Killian, Metairie, and Richard A. Weigand, Weigand, Levinson & Costa, New Orleans, for Boes Iron Works, Inc.

Arthur H. Leith, McGlinchey Stafford Lang, New Orleans, for Taylor Energy Co.

Thomas F. Gardner, Patricia Crowley, Mark J. Stirling, Gardner & Kewley, Metairie, for Spartan Bldg. Corp. and Fidelity and Deposit Co. of Maryland.

Before WARD, JONES and WALTZER, JJ.

[94-0519 La.App. 4 Cir. 1] WARD, Judge.

This is an appeal from a summary judgment in favor of Taylor Energy Company, Spartan Building Corporation, and its insurer, Fidelity and Deposit Company of Maryland. The summary judgment ordered the Recorder of Mortgages to cancel an inscription of a claim of privilege filed by Boes Iron Works Inc. from the mortgage records, and Boes has appealed that judgment.

Boes filed suit against Taylor, Spartan, and Fidelity seeking to recover an amount allegedly due under a construction contract between Boes and Spartan for construction work on Taylor's property. The trial court rendered summary judgment, dismissing Taylor and Fidelity from the lawsuit and ordering removal of the claim of privilege from the records after finding that Boes did not timely file its claim in the mortgage office nor did it adequately describe the property that was subject to the privilege. The summary judgment in these consolidated cases literally says "IT IS HEREBY ORDERED that there be judgment herein in favor of Taylor Energy Company and Fidelity and Deposit Company of Maryland and against Boes Iron Works, Inc., dismissing the petition of plaintiff as to Taylor Energy Company and Fidelity and Deposit Company of Maryland with prejudice, all parties to bear their respective cost...." Fidelity and Deposit did not move [94-0519 La.App. 4 Cir. 2] for summary judgment, and any judgment rendered in its favor is an obvious error. We consider in this appeal only the issue raised in the motions of Taylor and Spartan for summary judgment: the validity of Boes' privilege against Taylor's property, and dismissal of Boes' claims against Taylor. Thus the suit remains an open matter only on the contractual claims of Boes against Spartan and its insurer, Fidelity and Deposit.

We affirm, because we find Boes did not perfect its privilege because it did not adequately describe the property that was subject to the privilege nor did it timely file its claim of privilege in the mortgage office.

Boes filed its claim of privilege describing the immovable property as 615 Howard Avenue, 944 St. Charles Avenue. This is not sufficient under the Private Works Act to perfect a privilege on Taylor's property even though admittedly it is the correct municipal address of Taylor Energy Company. La.R.S. 9:4831 of the Private Works Act is applicable:

A. The filing of a notice of contract, notice of termination, statement of a claim or privilege, or notice of lis pendens required or permitted to be filed under the provisions of this Part is accomplished when it is filed for registry with the recorder of...