In Teche Electric Supply, LLC v. M.D. Descant, Inc., et al., the State of Louisiana contracted with a general contractor for the construction of the Southwest Louisiana War Veterans Home. A subcontractor on the project filed for bankruptcy before paying its materialman in full. The materialman filed a statement of lien and privilege against the subcontractor for the full amount owed and thereafter mailed a notice of nonpayment to the state and the general contractor. The state accepted the project, and the materialman filed suit for the full amount of its lien. The defendants moved for summary judgment on the ground that the materialman failed to preserve its right to lien by not providing proper notice of nonpayment under La.R.S 38:2442(F) in the Louisiana Public Works Act. The trial court denied the motion.
La.R.S 38:2442 provides that a claimant must, within 45 days after the recordation of acceptance of the work or a notice of default, file a sworn statement of the amount due with the governing authority and record it in the parish where the work is done. La.R.S. 38:2442 was amended in 1999 to add subsection (F). Subsection (F) states that, if a materialman has not been paid by a subcontractor and has not sent notice of nonpayment to the general contractor and the owner on or before 75 days from the last day of the month in which the material was delivered, the materialman loses the right to lien.
On appeal, Louisiana’s Third Circuit Court of Appeal reversed the trial court, holding that, while the previous law did not include a notice requirement, La.R.S. 38:2442(F) clearly changed the law. Because the materialman had failed to furnish notice of nonpayment prior to filing its lien, it lost its right to file a lien or privilege. As a result, the materialman had no viable claim against the defendants.
Teche Electric Supply, LLC v. M.D. Descant, Inc., No. 08-171, 2008 WL 5177841 (L.A. Ct. App. Dec. 11, 2008)