Big S Trucking Co., Inc. v. Gervais Favrot, Inc.

• Decision Date: 17 May 1983
• Docket Number: Nos. 82,s. 82
• Citation: 450 So.2d 369
• Parties: BIG S TRUCKING COMPANY, INC. v. GERVAIS FAVROT, INC., et al. Homer HOYT, Jr. v. GERVAIS FAVROT, INC., et al. Eddie B. MELSON v. GERVAIS FAVROT, INC., et al. CA 0773 to 82 CA 0775.
• Court: Court of Appeal of Louisiana — District of US

Page 369

450 So.2d 369

BIG S TRUCKING COMPANY, INC. v. GERVAIS FAVROT, INC., et al.

Homer HOYT, Jr. v. GERVAIS FAVROT, INC., et al.

Eddie B. MELSON v. GERVAIS FAVROT, INC., et al.

Nos. 82 CA 0773 to 82 CA 0775.

Court of Appeal of Louisiana, First Circuit.

May 17, 1983.

Before LOTTINGER, COLE and CARTER, JJ.

LOTTINGER, Judge.

These consolidated appeals arise from three suits brought to demand payment for services rendered and assert privileges under the Private Works Act, La.R.S. 9:4801 et seq. Plaintiffs, Big S Trucking Company, Homer Hoyt, Jr., and Eddie B. Melson sued the general contractor and various subcontractors ¹ on a construction project on South Sherwood Forest Boulevard in East Baton Rouge Parish for unpaid amounts billed for hauling dirt and other materials away from the construction site. The owner of the office buildings under construction, Prudential Insurance Company, was added as a party defendant. After the three suits were consolidated, the general contractor, Gervais F. Favrot Company, Inc. (Favrot), pleaded the exception of no right and no cause of action, and additionally moved for summary judgment. The motion for summary judgment was granted, resulting in three consolidated devolutive appeals.

FACTS

From the briefs and the record, we glean the following:

Prudential Insurance Company, as owner of immovable property, contracted with Favrot, a general contractor, for construction of Sherwood Oaks Office Park. Favrot recorded its contract and provided a surety bond, as required by statute. Favrot then contracted with Addco Construction Company, Inc. (Addco) for installation of the parking lots and other foundation work. Subsequently, Addco arranged with On the Move Land Development and Trucking Company, Inc. (On the Move) for removal of surplus dirt from the site. On the Move contracted with plaintiffs for the trucks and labor needed to haul the dirt. Plaintiffs rendered labor and supplied trucks in connection with the removal of the surplus dirt and deliverance thereof to defendants Jim Welsh and Michael Choates.

After a default in payment, plaintiffs recorded sworn statements showing the total amounts of their claims in the office of the recorder of mortgages for East Baton Rouge Parish. Subsequently, plaintiffs gave written notice of claim to Favrot as general contractor. The instant suits followed.

The trial court sustained summary judgment after Favrot introduced an affidavit from Addco's office manager and bookkeeper stating that Addco had never contracted with On the Move for removal of the dirt, that the dirt was given in exchange for its removal, and that Addco assumed no responsibility for its removal. Favrot also introduced an affidavit by its president which attested to the lack of privity between plaintiffs and Favrot.

SPECIFICATIONS OF ERROR

Plaintiffs-appellants do not assign precise specifications of error, but argue that the trial court committed error in finding that there were no genuine issues of material fact and Favrot was entitled to judgment as a matter of law. Plaintiffs-appellants contend that the record leaves unanswered the following contested issues of fact:

1. what were the factual circumstances surrounding the negotiations between Addco and On the Move for the removal of the dirt from the job site;

2. was an agreement struck between Addco and On the Move for the removal of the dirt;

3. did that agreement amount to a contract creating a subcontractor relationship between Addco and On the Move; and

4. ultimately, was On the Move a subcontractor to whom labor and equipment was furnished by plaintiffs for moving dirt from Favrot's construction site?

SUMMARY JUDGMENT

Under La.Code Civ.P. art. 966, a mover is entitled to summary judgment if there is no genuine issue as to material fact, and the mover is entitled to judgment as a matter of law. Only when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court should summary judgment be granted, Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), cert. den. 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98.

PRIVATE WORKS ACT

The Private Works Act, La.R.S. 9:4801 et seq., prior to its revampment in 1981, ² granted a privilege against land and improvements in favor of "every contractor, subcontractor architect, engineer ... cartman, truckman, workman, laborer ... who performs work or furnishes material for the erection, construction, repair, or improvement of immovable property..." La.R.S. 9:4801. Under La.R.S. 9:4802, every contract for the construction, repair, erection, etc. of immovable property was required to be in writing, signed under authentic act or private signature, and recorded. Such recordation preserved the privileges mentioned in La.R.S. 9:4801. The owner was required to cause the general contractor to record the contract, obtain a surety bond and file same with the recorded contract. If the owner failed to require recordation of the contract, or if a bond was not filed or was of an insufficient amount, the Act mandated the owner's personal, statutory liability in addition to the privilege against his property, La.R.S. 9:4806 and 9:4812. However, if the contract was...