National Sur. Corp. v. Colquitt, 11594

• Decision Date: 30 March 1971
• Docket Number: No. 11594,11594
• Citation: 246 So.2d 890
• Parties: NATIONAL SURETY CORPORATION, Plaintiff-Appellant, v. William Alexander COLQUITT et al., Defendants-Appellees-Appellants .
• Court: Court of Appeal of Louisiana — District of US

Page 890

246 So.2d 890

NATIONAL SURETY CORPORATION, Plaintiff-Appellant, v. William Alexander COLQUITT et al., Defendants-Appellees-Appellants .

No. 11594.

Court of Appeal of Louisiana, Second Circuit.

March 30, 1971.

En Banc. Rehearing Denied April 27, 1971.

Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for plaintiff-appellant.

Booth, Lockard, Jack, Pleasant & LeSage by L. L. Lockard, Shreveport, for Berg Mechanical Inc., Central Wholesale Co., Inc., and Dixieaire Air Conditioning Co., Inc., defendants-appellants.

Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for Stephenson Floor Covering Co., Inc., and Industrial Roofing & Sheet Metal Works, defendants-third party plaintiffs-appellants.

Hargrove, Guyton, Van Hook & Ramey by Cecil E. Ramey, J., Shreveport, for Guilford G. Rudolph and Catherine G. Rudolph, defendants-third party defendants-appellees.

Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for Dixie Tile & Marble Co., Inc., defendant-appellee.

Smitherman, Smitherman, Purcell, Lunn & LeVan by Herbert G. Purcell, Shreveport, for Home Federal Savings and Loan Assn. of Shreveport, defendant-appellee.

Johnston, Johnston & Thornton by J. Bennett Johnston, Jr., Shreveport, for William Alexander Colquitt, defendant-appellee.

Roy L. Beard, Shreveport, for Asa Willis, defendant-appellee.

Brown & Dormer by James J. Dormer, Shreveport, for Decorators-Builders Hardware Co., Inc., defendant-appellee.

Wiener, Weiss & Wiener by Jacques L. Wiener, Jr., Shreveport, for Cahn Electric Co., Inc., defendant-appellee.

Before AYRES, PRICE and HALL, JJ.

AYRES, Judge.

This action in the nature of a concursus proceeding was instituted by plaintiff, National Surety Corporation, as surety on a lien bond executed in connection with the sale and mortgage of a residence erected by defendant Colquitt on a lot owned by him and sold to Guilford G. Rudolph and his wife, Catherine G. Rudolph. Made defendants in addition to Colquitt, the receiver or trustee of his estate in bankruptcy, and the Rudolphs and their mortgagee, Home Federal Savings and Loan Association, were eight certain claimants to liens upon the property by virtue of their having furnished materials and supplies for use in the construction of the improvements thereon.

Under motions by plaintiff, National Surety Corporation, and the defendants Rudolph, predicated upon pleas of prescription and of peremption, the trial court found the liens had not been timely filed. Hence the motions were sustained, and the funds deposited by plaintiff in the registry of the court, less the accrued court costs, were ordered returned to plaintiff. At the request of the Rudolphs, the liens were ordered canceled and erased from the mortgage records. From the judgment thus rendered and signed, the lien claimants appealed, as did plaintiff from that portion of the judgment directing that the costs be paid out of the funds deposited by it in court.

Colquitt, on February 12, 1968, was the owner of Lot 329, Unit 4 of Spring Lake Estates Subdivision of the City of Shreveport. On that date, an agreement was reached between Colquitt and the Rudolphs for the construction of a residence on the aforesaid lot according to certain plans and specifications. It was agreed that after the residence had been so constructed, Colquitt would sell the lot and residence to the Rudolphs for a price of.$43,980.

No contract or bond with reference to this contract was recorded. The residence was completed on or before December 23, 1968, when the Rudolphs moved in. Minor adjustments or corrections in the construction were made, however, during February of 1969. On May 5, 1969, Colquitt deeded the property and improvements to the Rudolphs who, in turn, deeded the property to the Home Federal Savings and Loan Association which reconveyed the property to the Rudolphs, retaining a vendor's lien on the property. In the same instrument, the Rudolphs granted unto Home Federal a special mortgage to further secure a loan of $30,000. Colquitt furnished a lien bond in the sum of $8,000 with National Surety Corporation as surety. The Rudolphs, in an authentic act denominated an 'Affidavit of Acceptance,' made reference to the agreement entered into between them and Colquitt and declared:

'* * * that the said buildings and improvements were entirely completed and accepted on or about May 5, 1969; and that no material or labor has been furnished by any person on said building and improvements since said date of acceptance.'

The documents referred to were executed and filed for record in proper sequence on May 5, 1969. None of the liens herein concerned were filed for record within 60 days of the completion of the improvements on the property, that is, within 60 days of the furnishing of the last materials or the performance of the last labor in connection with the project. Lien claimants, however, relied upon the date of the filing for record of the Rudolphs' aforesaid statement as to the completion and acceptance of the residence as the date for the commencement of the running of the period allowed for the filing of liens. Whether claimants may rely upon the filing of this instrument for the commencement of the period for the filing of liens requires an interpretation of the applicable statute, LSA-R.S. 9:4812, as amended by Act 405 of 1966, the pertinent provisions of which read as follows:

'When the owner, or his authorized agent, undertakes the work of construction, improvement, repair, erection, or reconstruction, for the account of the owner, for which no contract has been entered into, or when a contract has been entered into but has not been recorded, as and when required, The owner or his authorized agent may file an affidavit that the work has been completed, then any person furnishing service or material or performing any labor on the said building or other work may record in the office of the clerk of court or recorder of mortgages in the parish in which the said work is being done or has been done, an affidavit of his claim, which recordation, if done within sixty days after the date of the affidavit of completion or if no affidavit of completion is filed within sixty days after the date of the last delivery of all material upon the said property or the last furnishing of services or the last performance of labor upon the same, by the said furnisher of material or services or the said laborer, shall preserve a privilege upon the building or other structure and upon the land upon which it is situated, in favor of any such person who shall have furnished service or material or performed any labor in connection with the said work or improvement, as his interest may appear. 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, * * *.' (Emphasis supplied.)

The statute is clear that When an owner or his authorized agent undertakes any of the work specified therein such Owner or His authorized agent...