Lafayette Electrical & Marine Supply, Inc. VS Abdon Callais Offshore, L.L.C.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2277 LAFAYETTE ELECTRICAL MARINE SUPPLY INC VERSUS ABDON CALLAIS OFFSHORE LLC J On Appeal from the 17th Judicial District Court Parish of Lafourche Louisiana Docket No 112 Division A 129 Honorable John E LeBlanc Judge Presiding Nicholas F LaRocca Attorney for Morgan City LA Plaintiff Appellant Lafayette Electrical Supply Inc Marine Lance J Arnold Attorneys for David T Lawson Defendant Appellee Baldwin Haspel Burke Mayer L C New Orleans LA Abdon Callais Offshore LLC BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered JUL 2 9 2010 PARRO 3 Lafayette Electrical Marine Supply Inc LEMS appeals the granting of a summary judgment in favor of Abdon Callais Offshore LLC Abdon which dismissed its petition for a declaratory judgment recognizing its lien or privilege against a dry dock owned by Abdon Based on our de novo review of the evidence we affirm the judgment BACKGROUND During February and March 2009 LEMS provided electrical materials and supplies on open account to Creole Labor Services LLC Creole to be used in the construction of a dry dock structure owned by Abdon The value of the materials supplied to Creole and incorporated into the dry dock amounted to 9 Creole 32 406 did not pay LEMS for these materials and supplies In June 2009 LEMS filed suit against Abdon seeking a declaratory judgment recognizing a lien or privilege against Abdon sdry dock under the provisions of LSA R S 4502 9 andor LSA C art 3237 Abdon filed a motion for summary judgment which was granted This appeal followed LEMS contends the district court erred in considering an affidavit filed in support of Abdon motion because that affidavit did not contain an affirmative declaration that s the affiant had personal knowledge of the factual statements in the affidavit nor did it state how the affiant had come by such knowledge LEMS further claims that the court erred in failing to recognize its lien or privilege under LSAR 9 and or LSAC S 4502 C art 3237 for furnishing materials and supplies in connection with the construction of sdry dock Abdon APPLICABLE LAW An appellate court reviews a district court decision to grant a motion for s summary judgment de novo using the same criteria that govern the district court s consideration of whether summary judgment is appropriate Smith v Our Lady of the Lake Hosp Inc 932512 La 7 639 So 730 750 The motion should be 94 5 2d granted if the pleadings depositions answers to interrogatories and admissions on file together with any affidavits show that there is no genuine issue of material fact and 2 the mover is entitled to judgment as a matter of law LSA C art 966 P 8Washauer v J Penney Inc 030642 La App 1st Cir 4 879 So 195 197 If the C 04 21 2d moving party will not bear the burden of proof at trial on the matter before the court on the motion the moving party must point out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense If s the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact and summary judgment must be granted Fredericks v Daiquiris LSAC art 966 P C 2 C Creams of Mandeville L 040567 La App 1st Cir C 05 24 3 906 So 636 639 writ denied 05 1047 La 6 904 So 706 2d 05 17 2d ANALYSIS Admissibility of Affidavit Article 967 of the Louisiana Code of Civil Procedure describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment Independent Fire Ins Co v Sunbeam Corgi 992181 and 99 2257 La 2 755 So 226 231 Supporting and opposing affidavits shall be 00 29 2d made on personal knowledge shall set forth facts that would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein LSAC art 967 Boland v West Feliciana Parish Police Jury 03 1297 La P C App 1st Cir 6 878 So 808 813 writ denied 042286 La 11 888 04 25 2d 04 24 2d So 231 In support of its motion Abdon submitted the affidavit of Bill Foret in which he identifies himself as the President of Abdon and recites certain facts relevant to the motion At the hearing on the motion LEMS objected to the admission of this affidavit on the grounds that it did not state that the affiant had personal knowledge of the recited facts nor did it show how he was competent to testify to those facts The objection was overruled and LEMS reurges it in this appeal Abdon contends the affidavit is admissible because Foret position as the President of Abdon establishes his s competence to testify to the information provided and demonstrates that he was in a position to have personal knowledge of the facts set out in his affidavit 3 A strikingly similar situation was considered by the Third Circuit Court of Appeal in Chavers v Bright Truck Leasing 06 1011 La App 3rd Cir 12 945 So 838 06 6 2d 84445 writ denied 070304 La 4 954 So 141 In that case the appellant 07 5 2d contended that the trial court erred in considering the affidavit of a company senior s vice president on the grounds that it was not based on his personal knowledge as required by LSAC art 967 The court disagreed stating P C The affidavit of Freeman expressly states that he is the senior vice president of CitiCapital and that CitiCapital purchased Associates subsequent to the accident at issue The trial court noted that Freeman s position as senior vice president demonstrated his competence to testify as to the substance within his affidavit We agree with the trial court that Freeman in his capacity as senior vice president of CitiCapital had the requisite knowledge to attest to the contents of his affidavit We therefore affirm the ruling of the trial court that the affidavit of Ken Freeman was admissible in support of Associates motion for summary judgment Footnote omitted The Chavers court further observed that the appellant had contradictory evidence on the issue before the court not put forth any In the case before us we similarly note that LEMS did not produce any evidence in opposition to the motion that would contradict the statements attested to by Foret We find no error in the trial s court admission of Foret saffidavit Privilege under LSAR 9 S 4502 Louisiana Revised Statute 9 provides in pertinent part as follows 1 A 4502 Any person engaged in the making or repairing of movable goods furniture upholstery commodities equipment merchandise machinery marine vessels trailers used in transporting marine vessels equipment or motors used on marine vessels or movable objects or movable property of any type or description has a privilege on the thing for the debt due him for materials furnished or labor performed Subsections B and C of the statute establish the remedies for the enforcement of the privilege on the thing for which the materials were furnished in order to obtain payment of the debt due There is no dispute in this case that LEMS did not have a contract with Abdon It merely furnished electrical materials and supplies on open account to Creole and Creole provided the labor to incorporate those goods into the Abdon dry dock structure As noted by both parties in briefs the privilege on movable property described in LSA S 4502 R 9 has not generated much jurisprudence The two cases involving third party rd suppliers of goods incorporated into a movable are Graeme Spring Brake Serv Inc v De Felice 98 So 314 La App Orl 1957 and Melyn Industries Inc v Sofec 2d Inc 392 So 733 La App 3rd Cir 1980 2d In Graeme the plaintiff had furnished materials and labor to a contractor for construction of the defendant stugboat and sought recognition of its lien or privilege under LSAR 9 when it was not paid for its services and materials S 4502 The appellate court concluded that the plaintiff was not engaged in the making or manufacturing of the tugboat nor was it engaged in its repair but had merely furnished upon the contractor order a small portion of the materials used and the s incidental labor necessary for the installation of those materials The court concluded It appears perfectly plain to us that plaintiff who was not engaged in making or repairing the tug but who merely furnished and installed some of the materials used in the work has no privilege on the vessel for a debt due by the contractor The statute unlike those provisions of the law which grant privileges on immovables for labor and materials does not accord a third person who furnishes labor or materials for the making of movable property a privilege thereon for the amount owed him If the Legislature ever intended that such person were to be protected by a privilege on the movable it would have said so Graeme 98 So at 318 2d The Melon case is very similar in that the plaintiff subcontractor supplied labor rental equipment and some materials used by the contractor in the construction of several large structures known as single anchor leg mooring buoys for the Louisiana Offshore Oil Port Although the principal contractor apparently was paid for the services and supplies it furnished it did not pay its subcontractor and eventually filed for bankruptcy Therefore the plaintiff filed suit against the owner of the mooring buoys to assert its privilege for furnishing materials and labor for their construction However the outcome in the Melon case differed from the Graeme case which the Melon court criticized for construing the statute too narrowly and reading provisions into the statute that the legislature did not intend The Melon court concluded that because the plaintiff actually worked on the project to install equipment the plaintiff had been engaged in the making of the movable property and was entitled to a privilege on the mooring On rehearing the court remanded the case to the district court for consideration of whether the plaintiff might have a lien or privilege on the vessel under LSA C art 3237 5 buoys Melon 392 So at 737 2d Both of these cases differ from the matter before us in that LEMS did not provide any labor or installation services for the materials it supplied to Creole for the dry dock It is therefore one step removed from the position of the subcontractors in both the Graeme and Melon cases as it was not directly engaged in the making of the movable structure Accordingly we conclude the district court was legally correct in determining that LEMS did not qualify for a privilege under LSAR 9 S 4502 Privilege under LSAC art 3237 C LEMS contends this court should recognize its privilege on Abdon dry dock s under the provisions of Louisiana Civil Code article 3237 which states in pertinent part The following debts are privileged on the price of ships and other vessels in the order in which they are placed 8 Sums due to sellers to those who have furnished materials and to workmen employed in the construction if the vessel has never made a voyage and those due to creditors for supplies labor repairing victuals armament and equipment previous to the departure of the ship if she has already made a voyage LEMS contends the dry dock structure is a vessel and it should have a privilege for the sums due for the materials it furnished for its construction A definition of vessel generally recognized in the jurisprudence is found in 1 U A C S tjhe word vessel includes 3 which states every description of watercraft or other artificial contrivance used or capable of being used as a means of transportation on water The undisputed facts in this case as established by Foret affidavit in support of s s Abdon motion are that Abdon contracted with Creole to complete a partially constructed dry dock for it This dry dock has no motor or other means of propulsion and can only be moved from one place to another on the surface of the water by being towed or pushed water It was not designed or used for navigation or transportation on Rather after being moved by a tugboat from the Creole facility in Houma Louisiana to Abdon dock in Golden Meadow Louisiana it was permanently attached s to the Abdon dock It has not been moved since being moored there After Abdon established these facts in the evidence supporting its motion the burden of proof 2 shifted to LEMS to demonstrate that it could satisfy its burden of proof at trial that the dry dock was a vessel and thus was subject to the privilege set out in Article 3237 However LEMS provided no evidence in opposition to the motion that would suggest there was a genuine issue of material fact concerning the nature or use of the dry dock Therefore the district court and this court had before it all the facts needed to determine based on the law established in the jurisprudence whether the dry dock could be considered a vessel LEMS suggests that because the dry dock was afloat at one point after its completion it was capable of being used transportation on water and thus was a vessel as a means of We disagree with this contention After Hurricane Katrina hit Louisiana many houses storage sheds and decks were lifted off their foundations and set adrift in the water motor vehicles were similarly caught up in the rising water and floated to new locations even fiberglass bathtubs were pushed or pulled by people to ferry children or personal belongings out of the flooded area No one would call these items vessels in the context of Article 3237 although without a doubt they all floated temporarily and were moved by wind water currents or human energy from one place to another on the surface of the water As early as 1887 the United States Supreme Court concluded that a floating dry dock that had been moored in the same location for twenty years was not a vessel but was a fixed structure that had been permanently moored See Cone v Vallette Dry Dock Co 119 U 625 7 S Ct 336 30 L 501 1887 Simply calling a fixed structure a S Ed vessel does not raise a genuine issue of material fact Accordingly we conclude as a matter of law that the dry dock involved in this case which was also permanently affixed was not a vessel and the privilege described in Article 3237 was not available to LEMS CONCLUSION For the above reasons we affirm the granting of Abdon motion for summary s judgment and the dismissal of LEMS request for a declaratory judgment regarding a privilege in its favor over Abdon dry dock s LEMS AFFIRMED 7 All costs of this appeal are assessed to
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