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Rowley Co. v. Southbend Contractors, Inc.
Citations: 517 So. 2d 1260; 1987 La. App. LEXIS 10880; 1987 WL 2808Docket: No. CA 7287
Court: Louisiana Court of Appeal; December 14, 1987; Louisiana; State Appellate Court
Plaintiff's appeal against the district court's judgment, which upheld defendants' prescription exception, is reversed. The case involves a claim for unpaid materials supplied to Southbend Contractors, Inc. for a private construction project in New Orleans on July 5, 1983. The project owner is C.B. Fox Company, and Great American Insurance Company is the surety for the payment bond. Plaintiff submitted a sworn claim statement on February 25, 1985, and filed suit on March 4, 1985, against Southbend, Fox, and Great American. Defendants argued that the claim was untimely under Louisiana Revised Statutes (La.R.S.) 9:4822, 9:4823, and 9:4813 E. Specifically, La.R.S. 9:4813 E. states that a surety's liability is extinguished if a claimant does not file an action within one year following the statement of claim deadline established in La.R.S. 9:4822. La.R.S. 9:4822 requires that claimants file their statement within 30 days after a notice of termination of work is filed, which was done on October 18, 1983. However, the notice of termination only provided a street address, failing to meet the clear identification requirements set by La.R.S. 9:4831 C. This inadequacy in property description is central to the court's decision to reverse the prescription exception, as it impacts the timeliness of the plaintiff's claim. The notice of termination of work is deemed deficient due to its inadequate description of the immovable, rendering it ineffective to initiate the statutory time period for asserting claims under the Private Works Act, La.R.S. 9:4801 et seq. Consequently, the plaintiff's time to assert its claim has not begun and cannot be considered expired. The district court incorrectly upheld the defendants' exception of prescription based on these grounds. Although the notice includes a handwritten notation referencing the contract, it does not enhance the description of the immovable, failing to meet the requirements of La.R.S. 9:4831 C. The court clarifies that this statute applies to the notice of termination filed on October 18, 1983, and is not retroactive despite the notice of contract being filed earlier on July 15, 1981. Defendants' argument that deficiencies should not invalidate a filing without evidence of actual prejudice is dismissed, as La.R.S. 9:4811 B. applies only to notices of contract, not notices of termination. There is no authority suggesting that a deficient notice of termination can remain effective without a showing of actual prejudice. The judgment of the district court is reversed, and the case is remanded for further proceedings, with the defendants responsible for all appeal costs.