Alside Supply Co. v. Gervais

• Decision Date: 07 November 1974
• Docket Number: No. 6377,6377
• Citation: 303 So.2d 584
• Court: Court of Appeal of Louisiana — District of US
• Parties: ALSIDE SUPPLY COMPANY, a Division o Alside, Inc. v. Lawrence GERVAIS.

Page 584

303 So.2d 584

ALSIDE SUPPLY COMPANY, a Division o Alside, Inc. v. Lawrence GERVAIS.

No. 6377.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 7, 1974.

Rehearing Denied Dec. 10, 1974.

Writ Refused Jan. 10, 1975.

Benjamin Washastrom, New Orleans, for defendant-appellant.

Caryl H. Vesy, New Orleans, for plaintiff-appellee.

Before REDMANN, GULOTTA and MORIAL, JJ.

GULOTTA, Judge.

This is a suit by a materialman for payment and recognition of a lien for siding materials purchased by a contractor and placed on defendant's residence. From an adverse judgment, defendant appeals. We affirm.

On appeal, defendant maintains that the lien affidavit and original petition were filed in the incorrect name, Alside Supply Company, a Division of Alside, Inc., and that the trial judge erroneously permitted an amendment to plaintiff's petition to reflect the correct corporate name, Alside, Inc. d/b/a Alside Supply Company. Defendant complains that after permitting the amendment, the trial judge rendered a money judgment and recognized the lien in the corporate name as amended. Defendant also argues that the lien was not timely filed as required under R.S. 9:4812.¹

The facts are that defendant entered into an unrecorded contract with H & H Builders, Inc., on September 16, 1972, to have the exterior of his home covered with siding. All materials used in the job on the Gervais home were purchased from plaintiff by H & H Builders, Inc. After completion of the work, Gervais paid H & H the full sum due under the contract. H & H did not pay plaintiff. Thereafter, on November 22, 1972, plaintiff filed a materialman's lien reflecting the incorrect name.

This suit to enforce the lien was filed in plaintiff's name as it was recorded in the lien affidavit. After having filed its answer on November 26, 1973, defendant filed a peremptory exception contending that Alside Supply Company is not the proper corporate entity and, therefore, not a proper party plaintiff.

Immediately prior to trial the district court dismissed defendant's exception and permitted an instanter amendment of the petition to read '* * * the petition of Alside, Inc., doing business as Alside Supply Company, a foreign corporation licensed to do business in the Parish of Jefferson in the State of Louisiana.' This appeal followed a judgment in favor of plaintiff in the corporate name as amended.

At the outset, we find no merit to defendant's contention that the lien was untimely filed. R.S. 9:4812 requires that a lien be filed within 60 days from the date of last delivery. The record supports the trial court's conclusion that the last delivery was made on September 25, 1972 and that the lien filed on November 22 was timely . Dray receipts from Alside Shipping Company show delivery of the materials commencing on September 18, 1972 and terminating on September 25, 1972. Furthermore, according to the testimony of the credit manager of Alside, invoices introduced into evidence show purchases of siding by H & H from defendant on the same dates of delivery as reflected by the receipts. The siding subcontractor who installed the material on defendant's house testified that he picked up some siding material from Alside on September 25, which he then installed at the defendant's residence. However, both the defendant and his wife contradict this testimony by stating that the job was completed on September 20.

Finally, we find no merit to defendant's contention that the trial judge erred in permitting the amendment to plaintiff's petition to more accurately reflect the corporate name. We are in agreement with the jurisprudence cited by defendant that statutes creating liens and privileges must be strictly construed.² However, the amendment permitted by the court in the instant matter does not violate this precept. The corporate entity, i.e., 'Alside, Inc.' was included in the lien affidavit and also was included in the original petition. The amendment did not have the effect of amending from one entity (such as a simple proprietorship or partnership) to another (a corporate one). It merely more accurately defined the corporate name.³ There is no change in substance in the lien, the original petition, and the amended petition. The corporate name was included in all documents.

Strict construction cannot be so interpreted as to permit purely technical objections, such as advanced in the instant case, to defeat the real intent of the statute.⁴ We fail to find that the trial judge erred when he permitted the amendment to the original petition. He properly rendered a money judgment and recognized the lien in the corporate name as amended. Accordingly, the judgment is affirmed.

Affirmed.

MORIAL, J., dissents with written reasons.

MORIAL, Judge (dissenting).

Plaintiff filed suit in the name of Alside Supply Company, New Orleans, Division of Alside, Inc., based upon a lien affidavit executed and timely recorded in that name. An instanter amendment granted by the district court allowed plaintiff to change its name to Alside, Inc., doing business as Alside Supply Company. Defendant's peremptory exception centers on the name in which plaintiff originally filed its suit.

Our statutory rule pertaining to the amendment of a petition is found in LSA-C.C.P. Article 1151 which provides:

'A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party. * * *' (emphasis supplied)

From the Reporters' Comments to this article it is abundantly clear that the amendment of a petition after answer is served is within the discretion of the trial judge. Our jurisprudence, even prior to the adoption of the Code of Civil Procedure,¹ favored liberal amendments to pleadings in the interest of justice and to prevent useless delays. See Reeves v. Globe Indemnity Company, 185 La. 42, 168 So. 488 (1936); McCarthy v. Osborn, 223 La. 305, 65 So.2d 776 (1953). To grant an amendment of a petition to correct a plaintiff's designation of itself to permit a difference without distinction is permissible. Cf. American Insurance Company v. Mr. Fog, Incorporated, 228 La. 15, 81 So.2d 429 (1955). However, to permit the practice of liberal amendment to prevail under the applicable jurisprudence and facts of this case would sanction breathing life into a right created in derogation of the general law under the guise of removing a subtle technicality. In my opinion the amendment was improper and the defendant's exception should have been maintained.

In addition to that part of LSA-R.S. 9:4812 footnoted by the majority, the below quoted parts are pertinent to a proper disposition of defendant's peremptory exception.

'* * * The said claim, recorded as aforesaid, shall preserve a privilege against the property for a period of one year from the date of its recordation, and may be enforced by a civil action in any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year from the date of the recordation of the claim in the mortgage records of the office of the clerk of court or the office of the recorder of mortgages. The effect of the recordation of the claim shall cease and the privilege preserved by the recordation shall perempt unless a notice of filing of a suit (giving the name of the...