DANIEL L. DYSART, Judge.
This appeal arises out of a mandamus proceeding through which the Clerk of Court for Orleans Parish was directed to cancel a statement of claim filed under La.
Gootee Construction, Inc. ("Gootee") commenced this action by filing a Petition for Mandamus to Cancel Improperly Recorded Claim Under the Louisiana Public Works Act ("Petition") on November 21, 2014. The Petition alleges that, on September 29, 2011, Gootee contracted with McDonnel — Archer Western Joint Venture ("McDonnel") "to provide certain labor and material" for a public works project for which McDonnel served as the general contractor.
According to the Petition, the subcontract with Land Coast required that Land Coast perform the work called for in the subcontract in a timely manner and in accordance with the schedule set forth in the Prime Contract. Gootee alleged that Land Coast did not comply with, nor timely execute, its obligations under the subcontract. Gootee further alleged that Land Coast improperly filed a "Statement of Amount Due" ("Statement") in the public records for Orleans Parish. Gootee maintains that, because Land Coast breached its duties under the subcontract, it had no right to recover the amounts claimed. Gootee further maintains that, because Gootee had not been paid by McDonnel for any of the amounts claimed in the Statement, no amounts were yet owed to Land Coast and, accordingly, the filing of the Statement was improper.
The Petition further indicates that Gootee sent a written demand to Land Coast for the cancellation of the Statement on November 11, 2014; however, Land Coast refused. According to Gootee, because of the filing of the Statement, McDonnel has refused to issue any further payments to it until the Statement is cancelled, "caus[ing] significant damages to Gootee." On this basis, the Petition sought a mandamus, compelling the cancellation of the Statement. The Petition also sought damages, costs and attorney's fees.
The trial court issued an order compelling the Honorable Dale N. Atkins and Land Coast to cancel the Statement or to show cause as to why the mandamus should not be made preemptive. A hearing was then held on December 3, 2014, at which time the trial court granted a writ of mandamus, ordering that the Statement be cancelled.
On December 16, 2014, Land Coast filed a motion to suspensively appeal the December 3, 2014 judgment. The trial court granted order of the appeal on December 18, 2014, setting a suspensive bond at $5,000.
That same day, December 16, 2014, Gootee moved to fix recoverable attorney's fees, expenses and costs and a hearing on Gootee's motion was set for January 9, 2015. Two days before the hearing, on January 7, 2015, Gootee moved to continue the hearing without date "pending the outcome of Land Coast's appeal."
On April 9, 2015, Gootee moved to either dismiss Land Coast's suspensive appeal or
A hearing was held on Gootee's motions (to dismiss/convert the suspensive appeal and to fix attorney's fees, expenses and costs) on May 8, 2015. By judgment dated June 2, 2015, the trial court granted the motion to dismiss the suspensive appeal, but denied the request for fees and costs.
A writ of mandamus may be issued "to a public officer to compel the performance of a ministerial duty required by law...." La. C.C.P. art. 3863. Under La. C.C.P. art. 3862, a mandamus "may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice." As in the instant matter, the mandamus process is the appropriate means to compel the cancellation of a lien which was improperly filed under the Act. See, e.g., L & A Contracting Co. v. Mabry, 637 So.2d 1090, 1093-94 (La. App. 2 Cir.1994)("[m]andamus has been held to be the proper remedy for compelling a recorder of mortgages to cancel or erase an illegal or unauthorized inscription"), citing Realsco, Inc. v. Green Acres Civic Association, 169 So.2d 570 (La.App. 4th Cir.1964); Gauguin, Inc. v. Addison, 288 So.2d 893 (La.App. 1 Cir.1973); Klein v. Recorder of Mortgages for Parish of Orleans, 430 So.2d 1047 (La.App. 4 Cir. 1983).
The essential facts of this case are not seriously contested. Rather, the issues in this matter are of a purely legal nature and, accordingly, we employ a de novo standard of review. 2400 Canal, LLC v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll., 12-0220, p. 5 (La.App. 4 Cir. 11/7/12), 105 So.3d 819, 824, quoting Fornerette v. Ward, 10-1219, p. 4 (La.App. 4 Cir. 5/11/11), 66 So.3d 516, 520 ("Legal questions are reviewed utilizing the de novo standard of review.").
There is no dispute in this matter that work undertaken by the parties falls within and is subject to the provisions of the Act,
Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70 (La.1990). The Act is designed to protect parties who perform work on public contracts because "[u]nlike their counterparts on private building projects, workers and suppliers engaged by public agencies cannot protect themselves with liens against public property because liens are not enforceable against publicly-owned property." Elec. Supply Co. v. Great Am. Ins. Co., 42,727, p. 2 (La.App. 2 Cir. 12/12/07), 973 So.2d 827, 829, citing State Through Div. of Admin. v. McInnis Bros. Const., 97-0742 (La. 10/21/97), 701 So.2d 937; VVP America, Inc. v. Design Build Development Services, Inc., 41,652 (La.App.2d Cir. 1/31/07), 951 So.2d 461. See also, U.S. Pollution Control, Inc. v. Nat'l Am. Ins. Co., 95-153, p. 3 (La.App. 3 Cir. 8/30/95), 663 So.2d 119, 121 ("Public Works Act was passed to protect laborers and materialmen involved in public works projects by offering them a vehicle by which they could recover monies owed to them for material or labor spent on behalf of the public works project").
The Act sets forth specific procedures which must be followed in order to preserve certain privileges. To perfect a claim under the Act, a claimant may, "after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done." La. R.S. 38:2242 B.
The question with which we are presented in this case is whether Land Coast met the requirements of La. R.S. 38:2242, or as Land Coast maintains, its claim was properly recorded insofar as the statute does not prohibit the filing of claims prior to the recordation of acceptance by the project's owner (in this case, the Orleans Parish Sheriff's Office) and allows such filings against a statutory payment bond. The trial court disagreed with Land Coast's position, finding, in its Reasons for Judgment, that "the claim has not matured [within the meaning of La. R.S. 38:2242(B)], in that not all of the lien amounts have been received nor has the recordation of acceptance of the work been done by the governing authority, the Sheriff for the Parish of Orleans."
We agree with the trial court that the explicit requirements of La. R.S. 38:2242 were not met, and therefore, the Statement was prematurely filed. Our ruling in no way affects Land Coast's future ability to perfect a claim under the Act.
A plain reading of the Act indicates that, once a public work project has reached substantial completion, the public entity for which the work was performed must, within thirty calendar days, file an acceptance of the work in the mortgage recorder's office. Thereafter, and "within 45 days after the recordation of acceptance of the work," a claimant may file a statement of claim. La. R.S. 38:2242 B. (Emphasis added.).
Land Coast interprets this language to indicate that "[i]f a Claim is recorded prior to acceptance, it can nonetheless certainly be within forty-five days of the acceptance of the work." We disagree.
The statute does not state that the claim must be filed within forty-five days "of" the acceptance, but rather, within forty-five days "after" the acceptance. An interpretation of the statute in the manner suggested by Land Coast would require a claimant to be omniscient so as to know when to file a claim both prior to and within forty-five days of the filing of the acceptance. Clearly, this was not the intent of the statute. See, e.g., D & J Const. Co. v. Mid-Continent Stone Co., 571 So.2d 762, 763 (La.App. 2 Cir.1990)(the Act "provides a 45-day time limitation for the claim
Land Coast also argues that its claim reached maturity when it "performed the work upon which he [sic] claim is based and complied with the statutory prerequisites in the Act." This argument is in line with Land Coast's contention that the "pay-if-paid" clause within the subcontract does not negate its right of action against the general contractor (McDonnel) and the sureties on the bond. Land Coast concedes that, "while the pay-if-paid clause... may arguably be a suspensive condition to some or all of Gootee's payment obligation to Land Coast under the subcontract, the obligation under the payment bond is not subject to that suspensive condition." As such, according to Land Coast's argument, despite the "paid-if-paid clause," it may still proceed against the bond despite the fact that Gootee may not first have been paid by McDonnel.
Land Coast's argument is based on a condition in the Master Terms and Conditions contained in the subcontract, which provides, in pertinent part, as follows:
We note that the terms of the final payment provisions of the subcontract also provide that "payment to [Land Coast] is conditioned on Gootee ... being paid by the Owner; i.e., Gootee ... is not obligated to pay [Land Coast] unless and until it has been paid by the Owner for [Land Coast's] work hereunder." (Article 6, Section 6.1 of the subcontract).
Land Coast relies heavily on the First Circuit decision of Glencoe Educ. Found., Inc. v. Clerk of Court & Recorder of Mortgages for Parish of St. Mary, 101872 (La. App. 1 Cir. 5/6/11), 65 So.3d 225, writ denied, 11-1142 (La. 10/21/11), 73 So.3d 383. We find this reliance to be misplaced as Glencoe dealt with an entirely different issue than that presented in the instant matter.
In Glencoe, a charter school entered into a contract with a general contractor ("GC") for the construction of a new building. The GC obtained two bonds — one to secure the GC's performance; the other to secure payment to all entities performing work under the contract. The GC then subcontracted with two companies for certain aspects of the construction project. When a dispute arose between the charter school and the GC over the work itself, the charter school withheld payment of the remaining balance owed to the GC and recorded a termination of the contract. Statements of claims were filed by the GC and both of the subcontractors. The charter school then filed a concursus proceeding seeking to have the statements of claims cancelled because of the existence of the payment bond.
In the concursus proceeding, both of the subcontractors sought the satisfaction of their claims from the payment bond. The trial court initially dismissed all claims against the charter school and directed the clerk of court to cancel all claims against it. The trial court then conducted a trial of all issues and, as pertained to the subcontractors, the trial court dismissed their claims against the general contractor, but entered judgment against the surety on the payment bond. On appeal, the court framed the precise issue before it — "whether a surety, which has issued a statutory bond governed by the provisions of the Public Works Act, may rely on a `pay if paid' clause in a principal's subcontract
The Glencoe court first addressed the purpose of the Act, and then, notably, commented that "[t]he payment bond serves as an additional fund or security to assure that those who perform work on public projects receive payment for their work in the event of a contractor's inability to fulfill its payment obligations." Id., 10-1872, p. 10, 65 So.3d at 231. (Emphasis added.).
Id., 10-1872, pp. 14-15, 65 So.3d at 233.
Thus, the issue before the court in Glencoe was not whether a statement of claim was timely or properly filed under La. R.S. 38:2242. Rather, the Glencoe case dealt with a claimant's rights to proceed against a surety on a public works project once the contractor could no longer "faithfully perform the contract." Id., 10-1872, p. 11, 65 So.3d at 231. The bond has the effect of "transfer[ring] the risk that a contractor will be unable to perform its obligations from the public entity to the surety." Id.
The right to payment under the bond is not at issue in this case at this time. Under the Act, as a prerequisite to making a claim under a statutory bond, a claimant must first comply with the provisions of La. R.S. 38:2242 B. The Act specifically requires such compliance, as evidenced by La. R.S. 38:2247, which states, in pertinent part:
(Emphasis added.).
Even if we were to agree that Land Coast was indeed, as it argues, asserting its rights against the payment bond, its Statement was also premature under the unambiguous language of La. R.S. 38:2247 for a number of reasons. First, before asserting its rights against the bond, Land Coast had to comply with La. R.S. 38:2242 B. As previously discussed, La. R.S. 38:2242 B permits Land Coast to file its claim only "within forty-five days after the recordation of acceptance of the work." Second, its action against the bond must be filed within one year from the registry "of acceptance of the work or of notice of default of the contractor." Third, because Land Coast did not have a contractual relationship with McDonnel, Land Coast must have first given written notice to McDonnel "within forty-five days from the recordation of the notice of acceptance by [McDonnel] of the work or notice by [the Orleans Parish Sheriff's Office] of default."
None of these provisions were met. It is the registry of the acceptance of the work, or notice of default, that triggers the forty-five day period contemplated by the statute. Neither acceptance of the work nor notice of default was filed by the Orleans Parish Sheriff's Office in this case. Accordingly, any effort to secure payment under the bond at this time would be premature. To hold otherwise would have the result of allowing any entity performing work under the Act to simply send its invoices for payment to a surety in the event it is not paid in a manner it considers timely.
Our finding is consistent with our jurisprudence interpreting La. R.S. 38:2247. In Interstate Sch. Supply Co. v. Guitreau's Const. & Consulting Co., 542 So.2d 138 (La.App. 1 Cir.1989), for example, the First Circuit rejected the argument that "La.R.S. 38:2242 appl[ies] only to maintaining a right of action against the governing authority and have [sic] no bearing on maintaining an action against the surety." The court noted:
Id., 542 So.2d at 139. See also, John F. Sanchez Plumbing Co. v. Aetna Cas. & Sur. Co., 564 So.2d 1302, 1303 (La.App. 1 Cir.1990)("In order to proceed "on the bond" the claimant must comply with the notice and recordation requirements of La. R.S. 38:2242(B). La.R.S. 38:2247"); Gulf Coast Refrigeration, LLC v. Houma Terrebonne Hous. Auth., 13-1512, p. 2 (La. App. 1 Cir. 3/24/14), 2014 WL 1175898, (unpublished), writ denied, 14-0855 (La. 6/20/14), 141 So.3d 811 ("It is obvious from the record that [the subcontractor] filed and recorded its lien well beyond the forty-five days after which [the general contractor] went into default. In order to proceed on the bond, the claimant must comply with the notice and recordation requirements of La. R.S. 38:2242(B). La. R.S. 38:2247."); Cf., J. Reed Constructors, Inc. v. Roofing Supply Grp., L.L.C., 12-2136, p. 5 (La.App. 1 Cir. 11/1/13), 135 So.3d 752, 755, writ denied, 14-1031 (La. 9/12/14), 148 So.3d 931 ("the materialman claimant must first comply with the notice and recordation requirements of La. R.S. 38:2242(B) and (F) in order to preserve the right to file a privilege or lien."); United Rentals Highway Technologies, Inc. v. St. Paul Sur., 37,265, p. 6 (La.App. 2 Cir. 8/20/03), 852 So.2d 1200, 1204 ("Furthermore, if a third party fails to preserve his statutory privilege by timely filing a sworn statement of his claim with the owner and duly record the claim within the statutory time delay, then the third party has no right of action on the bond securing performance and the bond may be summarily erased and canceled upon the demand of any party in interest.").
It is clear that, under La. R.S. 38:2247 and our jurisprudence interpreting the statute that, before a claimant seeks to proceed against a surety, it must first comply with the provisions of La. R.S. 28:2242. That is, the claimant must first file a sworn statement of claim "after [its] maturity and within forty-five days after recordation of acceptance ... or notice of default." Thereafter, a claimant may, within a year of either occurrence, assert a right of action against the surety. Until an acceptance or notice of default has been filed, a claim under the Act, like the Statement in the instant matter, is premature.
In its second assignment of error, Land Coast maintains that the trial court erred in refusing to allow it to introduce the payment bond at the December 3, 2014 evidentiary hearing. Land Coast contends that the "bond is relevant to a mandamus to cancel a claim establishing a right of action against that bond."
As discussed above, we have concluded that, based on the provisions of La. R.S. 38:2247, a claimant may not proceed against a bond until it has first complied "with the notice and recordation requirements of R.S. 38:2242(B)." Id. We likewise concluded that, until such time, any action against the bond would be premature. For this reason, the bond is not at issue and, therefore, is not relevant to this case. We find no abuse of the trial court's discretion in disallowing the introduction of the bond into evidence at the hearing. See, Brooks v. Reimonenq, 10-0296, p. 4 (La.App. 4 Cir. 7/21/10), 44 So.3d 824, 827 ("a trial court's rulings on evidentiary issues will not be disturbed absent a clear abuse of discretion.").
As noted, on December 16, 2014, Gootee filed a Motion to Fix Recoverable Attorney's Fees, Expenses and Costs. The hearing on the motion was continued without date on "pending the outcome of Land Coast's appeal." Thereafter, Gootee moved to set its motion for a hearing on April 9, 2015 (approximately four months after Land Coast filed its motion for a suspensive appeal). Gootee then answered the appeal on April 23, 2015, seeking a modification of the December 3, 2014 judgment to include an award for attorney's fees, expenses and costs it incurred in connection with the Statement. The trial court heard Gootee's motion on May 8, 2015 and denied the motion by judgment dated June 2, 2015. The judgment does not indicate the trial court's reasons for the denial and, at this time, the record has not been supplemented with the trial court's reasons for judgment.
The only matter before us is that raised by Gootee's answer to the appeal filed on April 23, 2015. At the time that Gootee answered the appeal, the trial court had not ruled on its motion to fix its attorney's fees, costs and expenses. Accordingly, the issues raised in its motion, having not been decided by the trial court, are not properly before us. See, Rowley v. Eye Surgery Ctr. of Louisiana, Inc., 06-1243, p. 5, n. 8 (La.App. 4 Cir. 4/4/07), 956 So.2d 680, 684 ("courts of appeal may not consider issues which were not ... addressed by the trial court.").
While the record reflects that the trial court ultimately ruled on Gootee's motion by judgment dated June 2, 2015, there was no appeal taken of this judgment. Accordingly, the June 2, 2015 judgment is not before this Court.
Gootee now requests that this Court award it reasonable attorney's fees, costs and expenses pursuant to La. R.S. 38:2242.1, plus legal interest from the date of judicial demand. Under that statute, "[o]ne who, without reasonable cause, fails to deliver written authorization to cancel a statement of claim ... shall be liable for damages suffered by the ... subcontractor... requesting the authorization as a consequence of the failure and for reasonable attorney's fees incurred in causing the statement to be cancelled." La. R.S. 38:2242.1 B.
We decline, therefore, to consider Gootee's request for an award of attorney's fees. We remand this matter to the trial court for a full evidentiary hearing on these issues.
For the reasons set forth herein, the judgment of the trial court is affirmed. We remand this matter to the trial court for a determination of whether Gootee is entitled to damages and attorney's fees pursuant to La. R.S. 38:2242.1.
As to the Motion for "[r]ecoverable [f]ees, [e]xpenses and [c]osts," the judgment simply denies that request without reason.
