Standard Materials, L.L.C. VS C & C Builders, Inc., Patrick C. Junius, and Charles A. Junius, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT yam zoto ca 0250 STANDARD MATERIALS L C VERSUS C C BUILDERS INC PATRICK C JUNIUS AND CHARLES A JUNIUS III Judgment rendered DEC 2 2 2010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana 2009 10849 Division G The Honorable William J Crain Judge Presiding Frances R White III Counsel for PlaintiffAppellee Covington Louisiana Standard Materials L C Martin L Morgan Covington Louisiana Counsel for DefendantAppellant Patrick C Junius C In Proper Person C Builders Inc and Charles A Junius III Slidell Louisian Gtr Cr z A Ct f O A T T dt w 64fW B WHIPLE KUHN GUIDRY PETTIGREW and KLINE JJ 4 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court KLINE J This matter arises from the grant of a motion for summary judgment filed by Standard Materials LLC Standard pursuant to the Louisiana Private Works Act LPWA La R 9 et seq S 4802 Patrick C Junius appeals the judgment rendered against him which awarded Standard the debt incurred by a contractor for materials Standard delivered to Patrick Junius immovable property s The judgment also awarded Standard a privilege on the property For the following reasons we affirm the portion of the judgment that decrees Patrick Junius s personal obligation to Standard for the unpaid debt We reverse that portion of the judgment that awarded Standard a privilege on the immovable property FACTS AND PROCEDURAL HISTORY Patrick Junius a California resident hired C C Builders Inc CC to undertake construction of a building on lot 29 Oak Harbor Moorings Phase 2 191 Islander Drive Slidell Louisiana rec 83 The record does not indicate whether the building was intended for residential or commercial use On April 9 2008 Standard sold concrete and other related supplies totaling 21 to CC 11 141 which were used on Patrick Junius property rec 30 Charles A Junius III a s principal in CC personally guaranteed CC obligation to Standard On July 1 s 2008 when the debt remained unpaid Standard filed an Affidavit of Lien against CC as the contractor and also against Patrick Junius as the record owner in an attempt to preserve its rights under the LPWA rec 10 21 The record shows that Patrick Junius was not formally notified of this debt before the lien was filed On February 11 2009 Standard filed a petition for damages recognition of privilege penalties attorney fees and costs against Patrick Junius CC and Charles Junius On March 23 2009 Standard filed a motion for preliminary Patrick Junius answer dated April 15 s default against Charles Junius and CC 2009 was filed into the record on April 20 2009 On May 12 2009 a default Pa judgment was rendered against Charles Junius and CC jointly severally and in Standard then filed a motion for summary judgment against Patrick Junius solido on May 27 2009 The motion was set for July 16 2009 The record reflects that on June 22 2009 Patrick Junius pursuant to the long arm statute was personally served with the Motion for Summary Judgment Memorandum in Support of the Motion Affidavit of Lien and Statement of Uncontested Facts At the hearing on the motion for summary judgment on July 16 2009 Patrick Junius was not present and no one appeared on his behalf Judgment was rendered in favor of Standard This judgment decreed that Standard was entitled to summary judgment as a matter of law and that Patrick Junius was obligated to The judgment also proclaimed that this Standard in the amount of 21 11 041 award was in solido with the award previously entered against Charles Junius and CC The judgment further recognized that Standard had perfected a privilege on the property in question under the LP WA Later that morning after judgment had been rendered Patrick Junius appeared in court to explain why he was not present at the hearing The trial court gave Patrick Junius the opportunity to address the court in his own defense which was transcribed After Patrick Junius testimony the trial court stated that s judgment against him had already been rendered and advised him to hire an attorney Patrick Junius apparently took the court advice because his attorney filed s a motion to amend judgment andor for new trial because the judgment against him and the privilege against the property was rendered without proof that Standard complied with the tenday notice required in La R 9 The trial court S 4802 2 G denied the motion Patrick Junius appealed alleging that the trial court erred in granting the motion for summary judgment because Standard failed to meet its burden of proof Specifically Patrick Junius contends that Standard introduced 3 no evidence that he as owner had prior notice of the non payment for the movables sold to CC Builders as required by La R 9 S 4802 2 G SUMMARY JUDGMENT A motion for summary judgment is properly granted if the pleadings depositions answer to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court s determination of whether summary judgment is appropriate Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case Id PERTINENT LAW Louisiana Revised Statutes 9 entitled Improvement of immovable by 4802 contractor claims against the owner and contractor privileges securing the improvement reads as follows in pertinent part Emphasis added A The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract Emphasis added 3 Sellers for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable or are consumed at the site of the immovable or are consumed in machinery or equipment used at the site of the immovable Emphasis added B The claims against the owner shall be secured by a privilege on the immovable on which the work is performed G 2 For the privilege under this Section or R 9 to arise S 4801 3 the seller of movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege The notice shall be served by registered or certified mail return receipt requested and shall contain the name and address of the seller of movables a general description of the materials C provided a description sufficient to identify the immovable property against which a lien may be claimed and a written statement of the seller lien rights for the total amount owed plus s interest and recordation fees The requirements of this Paragraph 2 G shall apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes Emphasis and underlining added DISCUSSION Lien and Privilege On appeal Patrick Junius contends that Standard did not demonstrate that it was entitled as a matter of law to judgment because it presented no evidence showing that it complied with the tenday notice requirements of 9 2 G 4802 before filing its lien against the property He argues citing Circle H Building Supply Inc v Dickey 558 So 680 682 La 1 Cir 1990 Standard 2d App s claims against him are based solely on his status as owner of the property under the LPWA Accordingly he argues that these claims must be strictly construed against the lienor and liberally interpreted in favor of parties whose common rights are thereby infringed upon Thus he argues since the notice requirements of the statute were not followed the motion for summary judgment should not have been granted Conversely Standard argues that La R 9 does not apply to S 4802 2 G this situation the statute states that the requirements of this Paragraph G apply 2 to movables sold for use or consumption in work on an immovable for residential purposes Standard contends that since Patrick Junius was contracting a building for resale purposes and not for his residential purpose this statute does not apply Louisiana Revised Statutes 9 provides authority for a seller to B 4802 secure a privilege on the property for the unpaid debt S G R 4802 La 9 2 specifically provides that for the La 9 privilege to arise the seller of S R 4802 movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege It further provides that notice to the 5 owner is to be delivered by registered or certified mail return receipt requested It also provides that other pertinent information such as the amount due and a description of the material provided must be on the notice The paragraph further states that its requirements apply to a seller of movables in work on an immovable for residential purposes There is no dispute that Patrick Junius was not notified in this manner We therefore focus on whether any genuine issue of material fact exists as to whether such notice is required under La 9 SG R 4802 2 There are two contending interpretations of La 9 SG R 4802 2 The first contention by virtue of the last sentence is that the language is a limiting one so that the notice requirements are restricted to immovables for residential purposes and thus do not apply to immovables for other purposes The second contention is that the last sentence is simply an affirmative inclusion that the notice requirement shall apply to immovables for residential purposes and importantly does not exclude the notice requirement for immovables for other purposes This contention notes that there is no limiting language such as only immovables for residential purposes The rationale for this contention is within the first sentence of La 9 to wit SG R 4802 2 For the privilege under this Section or R 9 to arise S 4801 3 the seller of movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege Emphasis added This second contention is that there is a general requirement of notice to the owner without limiting the requirements of notice to immovables for residential purposes To reiterate this contention urges that for the privilege to arise notice to the owner is necessary whether the use of the immovables is commercial residential or otherwise R Those who enact statutory provisions are presumed to act deliberately and with full knowledge of existing laws on the same subject with awareness of court cases and well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view Circle H Building Supply Inc 558 So at 682 2d In view of the contentions we looked into the legislative history The paragraph at issue was added by Act 1024 of the 1991 legislative session What a legislature says in the text of a statute however is considered the best evidence of the legislative intent or will State v Williams 00 1725 p 13 La 11 800 01 28 2d So 790 800 We are mindful as well that liens and privileges are to be strictly construed against claimants and liberally construed in favor of owners as they are in derogation of the common rights of owners Norman H Voelkel Const Inc v Recorder of Mortgages for East Baton Rouge Parish and Heck Industries Inc 021153 p 5 La 1 Cir 6 859 So 9 12 App 03 27 2d The first sentence in 9 states in the declaratory expression that a 2 G 4802 requirement for the privilege to arise is the tenday notice to the owner The last sentence in this section states that the requirements of this Paragraph G shall 2 apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes Emphasis and underlining added In an affirmative and declaratory last sentence the legislature referred to the requirements of Paragraph G and designated its application 2 2 Representative Salter introduced this legislation in 1991 as House Bill 382 The legislative minutes report that there was much discussion as to whether this legislation should be limited to residential buildings or not We realize that there are certain instances where this court must look to legislative intent La 24 states the following S 77 R1 A When the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code and Chapter I of Title 1 of the Louisiana Revised Statutes of 1950 the court shall consider the intent of the legislature However La 24 limits this pursuit by stating that S 1 R 177 summary and adjoining information and other words and phrases contained outside the sections of a bill following the enacting clause are solely to provide the members of the legislature with general indicia of the content of the bill and shall not constitute proof or indicia of legislative intent S E R 177 La 24 specifically 4 provides that recommendations of conference reports and other documents that are not suhject to amendment by the legislature shall not constitute proofor indicia of legislative Intent 7 If the first sentence requires notice to owners of all uses of immovable property then residential purposes in the last sentence would obviously not be necessary or would be redundant Therefore we conclude that the last sentence of paragraph G is deemed 2 to qualify the whole paragraph including the first sentence and notice is required only for properties used for residential purposes Accordingly to prevail on a motion for summary judgment the party claiming the privilege has the burden of showing that notice was not required on the basis that the property is being used for non residential purposes Standard has failed to show whether the materials it provided were being used for non residential purposes Therefore a genuine issue of material fact exists that precludes entry of summary judgment on the issue of privilege In view of our interpretation of the statute i it requires notice to the owner e of immovable property for residential purposes and because the record does not undisputedly establish the nature of the use of the immovable we are compelled to reverse this portion of the judgment Personal Liability of the Property Owner Resolution of the privilege however does not resolve the issue of Patrick s Junius personal liability We next address whether Standard proved as a matter of law that Patrick Junius was personally liable for the debt incurred by his contractor Louisiana Revised Statutes 9 provides in pertinent part 3 A 4802 A The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract 3 Sellers for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable or are consumed at the site of the immovable 8 Whether a privilege exists is discussed hereinabove and will be dependent upon a determination of the use of the immovable and thus whether the ten day notice was required These notice requirements as contended by Patrick Junius however are only found in the section of the statute pertaining to the privilege Thus in order to prove its claim as opposed to a privilege against an owner for the unpaid debt under La S R A 4802 9 Standard must present proof through pleadings depositions answer to interrogatories and admissions on file together with affidavits that there is no genuine issue of material fact that it is entitled to judgment as a matter of law LSAC art 966 Thereafter if Patrick Junius P C B fails to produce factual support sufficient to establish that he will be able to satisfy his burden at trial there is no genuine issue of material fact LSA C art P 2 C 966 Here to meets its burden Standard introduced the bills for the supplies and an affidavit attesting to the principal price of the items and the amount remaining due To defeat the motion for summary judgment Patrick Junius the adverse non moving party had to produce facts to establish that he could satisfy his evidentiary burden of proof at trial which he did not do The trial court allowed Patrick Junius to testify albeit after the fact A reading of his testimony however indicates that he did not refute any of the evidence that Standard had filed into the record and of which he was personally served Specifically Standard proved that Patrick Junius owed money and Patrick Junius did not dispute this fact Therefore no genuine issues of material fact remains regarding the existence of Standard claim and s judgment was correctly rendered against Patrick Junius as the owner of the property Accordingly the trial court did not err in granting summary judgment establishing Patrick Junius personal obligation We affirm the portion of the s judgment establishing that Patrick Junius has a personal obligation to pay Standard 9 for the materials that became component parts of his immovable property or were consumed at the site of the immovable property DECREE For the above reasons we affirm the portion of the judgment establishing that Patrick Junius has personal liability to Standard Materials LLC in the principal amount of 21 plus interest at the judicial rate from the date of judicial demand until paid subject to a credit in the amount of 2 00 000 We reverse the portion of the judgment insofar as it recognized Standard pdyJW on s the subject property The costs associated with this appeal are to be divided equally between the appellant Patrick C Junius and the appellee Standard Materials LLC AFFIRMED IN PART REVERSED IN PART 10
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