Coastal Fire Protection, L.L.C. v. Custom Drywall & Painting, L.L.C. and Tsm Investments, L.L.C.

COASTAL FIRE * NO. 2025-CA-0215
PROTECTION, L.L.C.
* COURT OF APPEAL
VERSUS
* FOURTH CIRCUIT
CUSTOM DRYWALL &
PAINTING, L.L.C. AND TSM * STATE OF LOUISIANA
INVESTMENTS, L.L.C.
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-08521, DIVISION “D”
Honorable Monique E. Barial, Judge
******
JUDGE SANDRA CABRINA JENKINS
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

David C. Clement
Leslie J. Hill
CLEMENT & ASSOCIATES
650 Poydras Street, Suite 2828
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLEE

David W. Nance
DAVID W. NANCE LAW FIRM, LLC
3912 Constance Street
New Orleans, LA 70115

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
SEPTEMBER 16, 2025

SCJ
TGC
DNA

This matter arises from the non-payment of an invoice for a construction

project. Custom Drywall & Painting, L.L.C. (“Custom”) appeals the trial court’s

December 12, 2024 judgment, which granted Coastal Fire Protection, L.L.C.’s

(“Coastal”) motion for summary judgment and cast Custom in judgment, solidarily

with TSM Investments, L.L.C. (“TSM”) in the amount of $13,559.28 plus legal

interest and ordered reimbursement of costs and expenses incurred by Coastal for

filing and recording its lien. The judgment further awarded Coastal statutory

misapplication penalties under La. R.S. 9:4856 and reasonable attorney’s fees and

costs pursuant to La. R.S. 9:4856 and La. R.S. 9:2781. For the reasons to follow,

we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND1

1On June 2, 2025, the Court issued an order consolidating this appeal with Coastal Fire Prot. v.

Custom Drywall & Painting, L.L.C. and TSM Inv., L.L.C., 2025-0081 (La. App. 4 Cir. --/--

1

TSM owned a construction project located at 606 and 608 Harrison Avenue

in New Orleans. TSM contracted with Custom to serve as the general contractor

for the project. On November 25, 2019, Coastal submitted a proposal to Custom to

perform work on a fire sprinkler system for the project. Coastal’s price for the

work was $56,925.00. On December 10, 2019, Custom accepted Coastal’s

proposal and issued a Notice to Proceed.

Thereafter, on September 13, 2022, Coastal filed a petition against Custom

and TSM. Coastal alleged that it satisfactorily performed its obligations under the

contract, however, $13,599.28 was still owed for the work performed. Coastal

further alleged that as a result of non-payment of the invoice, it filed a lien, a

Statement of Claim and/or Privilege in connection with the project in the Orleans

Parish land records and in accordance with the Louisiana Private Works Act.2

Coastal asserted that the lien was sent to TSM and Custom with a written demand

/2025), --So.3d--. The consolidated matters were submitted to this Court on July 9, 2025. After
submission, upon further consideration, this Court ordered that the appeals be unconsolidated to
address the issues presented in each with more precision and clarity.
2 The Louisiana Private Works Act provides a means for contractors and others to recover the

costs of labor and/or materials from a party with whom there is no contract. La. R.S. 9:4801 et
seq. This Court in Byron Montz, Inc. v. Conco Const. Inc., 2002-0195, p. 6 (La. App. 4 Cir.
7/24/02), 824 So.2d 498, 502 explained the following rights a subcontractor is afforded under the
Private Works Act:
The Private Works Act was enacted to facilitate construction of improvements on
immovable property and does so by granting to subcontractors, among others, two
rights to facilitate recovery of the costs of their work from the owner with whom
they lack privity of contract. The first right is a statutory “claim”—the right to
personally sue the owner for the amount that is owed—that is provided by La.
R.S. 9:4802(A)(1); particularly, this statute provides that subcontractors have a
claim against the owner and a claim against the contractor to secure payment of
the price of their work. The second right is the privilege provided by La. R.S.
9:4802(B), which states that “[t]he claims against the owner [under this Section]
shall be secured by a privilege on the immovable on which the work is performed.

2

for payment. TSM and Custom filed an answer and reconventional demand on

October 27, 2022.3

On June 7, 2023, Coastal moved for summary judgment, asserting that there

is no genuine issue of material fact and that it is entitled to judgment as a matter of

law against defendants in the amount of $13,559.28, plus legal interest from the

date of demand, July 1, 2022, until paid and for reimbursement of the costs and

expenses incurred by Coastal for filing and recording its lien in the amount of

$135.00.

On September 13, 2023, TSM and Custom filed exceptions of no cause of

action, no right of action, and prescription. On the same date, TSM and Custom

filed a motion to withdraw matters deemed admitted. The hearing on Coastal’s

motion for summary judgment was held on September 15, 2023, at which the trial

court granted the motion. Shortly thereafter, TSM and Custom filed a motion for

new trial or to vacate and set aside judgment, with regard to the trial court’s

September 15, 2023 judgment.

The trial court held a hearing on TSM and Custom’s exceptions and motion

to withdraw matters deemed admitted on December 8, 2023. On January 9, 2024,

the trial court signed a judgment sustaining TSM and Custom’s exception of no

cause of action and ordered Coastal to supplement and amend its petition. The trial

court also vacated and set aside the September 15, 2023 judgment that had granted

Coastal’s motion for summary judgment, stating in its reasons for judgment that

3 TSM and Custom jointly filed a majority of their pleadings.

3

the exceptions should have been considered before the motion for summary

judgment. Coastal filed an application for supervisory writ. This Court granted the

writ, reversed in part and affirmed in part the January 9, 2024 judgment.

Specifically, this Court affirmed the trial court’s judgment vacating its prior grant

of the motion for summary judgment and reversed the trial court’s grant of the

peremptory exception of no cause of action. Coastal Fire Prot., L.L.C. v. Custom

Drywall & Painting LLC, 2024-0066 (La. App. 4 Cir. 3/13/24), 390 So.3d 278,

writ denied, 2024-00433 (La. 6/25/24), 386 So.3d 1084.

Thereafter, on February 9, 2024, Coastal filed its first amended and

supplemental petition. On August 16, 2024, Coastal moved for summary judgment

against TSM and Custom. On October 1, 2024, Coastal moved to withdraw its first

amended and supplemental petition. The trial court granted the motion on October

2, 2024.

The hearing for the motion for summary judgment was set for October 11,

2024. Thereafter, TSM and Custom filed a motion to continue the October 11,

2024 hearing.4 Coastal opposed the motion to continue. The trial court held a

hearing on the motion to continue on October 11, 2024. The trial court denied

TSM’s motion to continue, and signed a judgment to that effect on October 14,

4 On September 27, 2024, Tracie Medus, the sole member of TSM filed a motion to continue the

October 11, 2024 summary judgment hearing. In response, Coastal moved to strike the motion to
continue, asserting that Ms. Medus is not licensed to practice law in Louisiana and cannot file
pleadings on behalf of TSM. Ms. Medus’s motion to continue was withdrawn.

4

2024. 5 On the same date, the trial court signed an order resetting the hearing on

Coastal’s motion for summary judgment as to the claims against Custom.

Thereafter, on October 30, 2024, Custom filed an opposition to the motion

for summary judgment. On November 11, 2024, Custom moved for judgment on

the pleadings, arguing that because Coastal filed a motion to withdraw its first

amended and supplemental petition, Coastal’s claims should be dismissed. The

trial court denied the motion for judgment on the pleadings.

On December 4, 2024, the trial court held a hearing on Coastal’s motion for

summary judgment as it relates to its claims against Custom. On December 12,

2024, the trial court signed the following judgment:

IT IS ORDERED, ADJUDGED AND DECREED that the
Motion for Summary Judgment filed by Plaintiff, Coastal Fire
Protection, L.L.C, for its claims against Defendant, Custom Drywall
& Painting LLC is hereby GRANTED.

ITS IS FURTHER ORDERED, ADJUDGED AND
DECREED that Defendant, Custom Drywall & Painting LLC, is
hereby cast in judgment solidarily with Defendant TSM Investments,
LLC for the same principal amount, legal interest, and cost of
recording a lien awarded in this court’s judgment as to TSM
Investments, LLC dated October 11, 2024. As of today, those amounts
are as follows: 1) in the amount of $13,559.28 for work performed by
Plaintiff, plus legal interest from the date of demand of July 1, 2022
through today in the amount of $2,225.81 continuing to accrue in the
amount of $3.25 daily until the judgment is paid; and, 2) for
reimbursement of the costs and expenses incurred by Plaintiff for
filing and recording its lien in the amount of $135.00.

5 The hearing on Coastal’s motion for summary judgment was held on October 11, 2024 against

TSM. On October 14, 2024, the trial court signed a judgment granting Coastal’s motion for
summary judgment and casting TSM in judgment for the amount of $13,559.28 plus legal
interest from July 1, 2022 to October 11, 2024, in the amount of $2,046.99. The trial court
further ordered reimbursement of the costs and expenses incurred by plaintiff for filing and
recording its lien in the amount of $135. The trial court recognized the validity of the lien and
directed the Sheriff to execute the lien and sell the immovable property to satisfy the judgment.
TSM appealed the judgment.

5

IT IS FURTHER ORDERED, ADJUDGED AND
DECREED that Defendant, Custom Drywall & Painting LLC, is
hereby cast in judgment: 1) in the amount of $13,559.28 for statutory
misapplication penalties under La. R.S. 9:4856; and, 4) for reasonable
attorney’s fees and costs in the amount of $38,607.83 pursuant to La.
R.S. 9:4856 and La. R.S. 9:2781.

This appeal timely followed.

DISCUSSION

Custom assigns five errors, however, we narrow our discussion to three

issues: 1) whether the trial court erred in denying Custom’s motion to withdraw

matters deemed admitted; 2) whether the trial court erred in denying its motion for

judgment on the pleadings; 3) whether the trial court erred in granting Coastal’s

motion for summary judgment.6 We begin our discussion by addressing Custom’s

motion to withdraw matters deemed admitted.

Motion to Withdraw Matters Deemed Admitted

Custom asserts the trial court erred when it denied its motion to withdraw

matters deemed admitted. Custom provides that its late responses were filed with

its motion to withdraw matters deemed admitted, more than a year before the filing

of Coastal’s motion for summary judgment. Custom argues that Coastal’s counsel

was obligated to confirm that its former counsel was in receipt of the requests for

admission but failed to do so. Custom further argues that the deemed admissions

were controverted in its verified answer and reconventional demand.

6 Custom’s five assignments of error are: 1) the trial court erred in denying its motion to

withdraw matters deemed admitted; 2) the trial court erred in denying its motion for judgment on
the pleadings; 3) the trial court erred in allowing Coastal to ignore the defendants’ pending and
verified answer and reconventional demand and late filed responses to requests for admissions;
4) the trial court erred in misinterpreting La. C.C.P. art. 966; and 5) the trial court erred in
granting Coastal’s motion for summary judgment.

6

Custom relies on this Court’s decision in Indulge Island Grill, L.L.C. v.

Island Grill, L.L.C., et al., 2016-1133 (La. App. 4 Cir. 5/10/17), 220 So.3d 154 and

the court’s decision in Hill v. TMR Expl., Inc., 2022-0037 (La. App. 1 Cir.

10/4/22), 353 So.3d 823, in support of its arguments. In Indulge Island Grill,

L.L.C., this Court addressed the trial court’s acceptance of deemed admissions after

the defendant failed to timely respond to the plaintiff’s requests for admission. This

Court provided:

The jurisprudence, however, has tempered the harsh penalty of
automatic deemed admissions by holding that a “matter will not be
deemed admitted if the party against whom the admission is sought
controverts the matter in some other manner, such as by exception or
answer.” 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL
PROCEDURE § 9:8 (2d ed. 2016) (“Maraist”); Phelps Dunbar,
L.L.P. v. Stout, [20]04-0785, p. 7 (La.App. 4 Cir. 6/15/05), 914 So.2d
44, 49 (citing and explaining the jurisprudence holding that a matter
should not be deemed admitted when the party against whom the
admission is sought has “denied the contested facts in other
pleadings.”). Thus, when the record reflects the party against whom
the admission is sought is controverting a matter, “he or she should
not be deemed to admit it merely because of a failure to respond
within the prescribed time frame.” Maraist, § 9:8, n. 30.

Indulge Island Grill, L.L.C., 2016-1133, p. 14, 220 So.3d at 163. This Court further

held that “the granting of summary judgment based solely on deemed admissions,

‘in the face of plain assertions disputing the alleged fact,’ is ‘too drastic a sanction

to impose for failure to respond to a requested admission of fact.’” Id, 2016-1133,

p. 15, 220 So.3d at 164 (quoting Hoskins v. Caplis, 431 So.2d 846, 849 (La. App.

2d Cir. 1983).

In Hill, the court considered whether the trial court erred in granting

defendant’s motion for summary judgment in light of the defendant’s unanswered

requests for admission that was deemed admitted and the defendant’s interrogatory

7

responses. The plaintiffs propounded requests for admission to the defendant. The

defendant failed to respond to the requests for admission and the plaintiffs sought

to have the requests deemed admitted. Hill, 2022-0037, p. 4, 353 So.3d at 826. The

defendant later moved for summary judgment. The plaintiffs opposed the summary

judgment, arguing that to the extent the defendant’s unanswered requests for

admission were deemed admitted, the requests and the defendant’s interrogatory

responses were competing admissions, which created a genuine issue of material

fact. Id., 2022-0037, p. 6, 353 So.3d at 827. The court held that as a result of the

defendant not serving the requesting party with a written objection to the requests

for admission, the requests were deemed admitted. Id., 2022-0037, p. 7, 353 So.3d

at 829. The court reasoned:

As noted, [Defendant’s] unanswered requests for admission
affirmatively establish that [Defendant] “possessed information and
knowledge that the toe of the well was located beneath Plaintiffs’
property prior to being designated as Operator of the well.” The
parties do not dispute that [Defendant] became operator of the well ...
Conversely, [Defendant’s] interrogatory responses establish that it
first became aware that the bottom hole of the well was located
beneath the [Plaintiffs’] property. . . Since evidence may not be
weighed and such conflicts may not be resolved on summary
judgment, we agree with the [Plaintiffs] that the trial court erred by
giving “preference” to [Defendant’s] unanswered requests for
admissions. [Defendant’s] interrogatory responses and the requests for
admission create a genuine issue of material fact concerning when
[Defendant] became aware that the bottom hole of the well was
beneath the [Plaintiffs’] property.

Id., 2022-0037, p. 10, 353 So.3d at 830.

We find that Indulge Island Grill, L.L.C. and Hill are distinguishable. In

contrast to the present case, the plaintiff in Indulge Island Grill, L.L.C. filed an

affidavit and requests for admission in support of its motion for summary judgment

to demonstrate the defendant’s intent. 2016-1133, p. 10, 220 So.3d at 161. This

Court found that the affidavit was insufficient to establish defendant’s intent to

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abandon the premises, and the deemed admissions were controverted by the

defendant’s verified reconventional demand. Furthermore, the Indulge Island Grill,

L.L.C. court applied the former version of La. C.C.P. art. 966 prior to the current

amendment.7 Unlike the former version of Article 966 that is relied on in Indulge

Island Grill, L.L.C., the current article has mandatory filing deadlines as well as

limitations to what documents may be filed or referenced in support of or in

opposition to a motion for summary judgment. See La. C.C.P. art. 966. As it will

be explained further in this opinion, the deemed admissions were not the sole basis

for the trial court’s grant of Coastal’s motion for summary judgment.

Moreover, Hill is distinguishable from the present matter as well. In Hill,

opposition evidence was introduced to challenge what the moving party considered

to be deemed admissions. Although Custom opposed the motion for summary

judgment, it failed to introduce evidence in opposition to the motion. Additionally,

the Hill court determined that summary judgment was not appropriate, not because

of the requests for admission should not have been deemed admitted, but because

the trial court improperly weighed the evidence.

Louisiana Code of Civil Procedure article 1466 provides in relevant part that

“[a] party may serve upon any other party a written request for the admission . . .

of the truth of any relevant matters of fact . . . .” Moreover, pursuant to Article

1467, a matter is deemed admitted if the party to whom the request is directed does

not respond within thirty days after service of the request. La. C.C.P. art. 1467(A).

Any matter deemed admitted pursuant to Article 1467 is conclusively established

7 In Indulge Island Grill, L.L.C. v. Island Grill, L.L.C., et al., 2016-1133 (La. App. 4 Cir.

5/10/17), 220 So.3d 154, this Court applied the version of La. C.C.P. art. 966 that was effective
August 1, 2014 to December 31, 2015.

9

unless the court, on motion, permits withdrawal or amendment of the admission.

La. C.C.P. art. 1468.

“[T]he court may permit withdrawal [of an admission] when the presentation

of the merits of the action will be subserved thereby and the party who obtained the

admission fails to satisfy the court that withdrawal [of the admission] will

prejudice him in maintaining his action or defense on the merits.” Id. Additionally,

“Louisiana courts have allowed late-filed denials to requests for admissions to

constitute requests for withdrawal of those admissions, even if the responses were

extremely late and were not presented to the court by a motion to withdraw or

amend the admissions.” Duckworth v. Curole, 2023-0611, p. 5 (La. App. 1 Cir.

4/19/24), 389 So.3d 832, 836, on reh’g, 2023-0611 (La. App. 1 Cir. 12/11/24), 404

So.3d 831. “It is within the trial court’s discretion to determine whether to allow

the withdrawal of the admission.” Apache Corp. v. Talen’s Marine & Fuel, LLC,

2017-0714, p. 6 (La. App. 1 Cir. 2/7/18), 242 So.3d 619, 623.

Here, on March 21, 2023, Coastal propounded requests for admissions on

Custom via email to Custom’s former counsel. Thereafter, having received no

reply, Coastal moved for summary judgment on June 7, 2023. On September 13,

2023, two days before the hearing on Coastal’s motion for summary judgment,

Custom filed a motion to withdraw matters deemed admitted. Subsequent to a

hearing on the motion to withdraw matters deemed admitted, on September 15,

2023, the trial court denied Custom’s motion in open court, and signed a judgment

to that effect on September 21, 2023.

While Custom argues that Coastal failed to confirm that it received the

requests for admission, the record reflects otherwise. Coastal provided

confirmation that discovery requests were sent to Custom’s former counsel.

10

Custom failed to provide explanation as to why withdrawal of admissions was

sought only two days before the September 15, 2023 hearing on Coastal’s motion

for summary judgment. Therefore, given the dilatory manner in which Custom

responded to Coastal’s requests for admissions, over five months after they were

propounded and only two days prior to the hearing on the motion for summary

judgment, we do not find that the trial court abused its discretion in denying

Custom’s motion to withdraw admissions.

Judgment on the Pleadings

Custom argues that the trial court erred in denying the motion for judgment

on the pleadings because Coastal voluntarily withdrew its first amended and

supplemental petition. Custom argues that Coastal’s first amended and

supplemental petition was intended to be the operative petition by replacing the

September 13, 2022 petition and Coastal voluntarily dismissed all of its causes of

action by withdrawing the pleading.

“A motion for judgment on the pleading presents solely a question of law.”

Hotard v. Hotard, 2024-0441, p. 4 (La. App. 4 Cir. 12/13/24), 407 So.3d 677, 680

(citing Stonebridge Development, LLC v. Stonebridge Enterprises, LLC, 42,039

(La. App. 4 Cir. 4/4/07), 954 So.2d 893, 896). “Questions of law are subject to de

novo standard of review.” Treas v. Koerner, 2019-0390, pp. 11-12 (La. App. 4 Cir.

11/13/19), 364 So.3d 55, 63 (citing Daigre v. Int’l Truck and Engine Corp., 2010-

1379, p. 10 (La. App. 4 Cir. 5/5/11), 67 So.3d 504, 510).

Louisiana Code of Civil Procedure article 965 provides:

Any party may move for judgment on the pleadings after the
answer is filed, or if an incidental demand has been instituted after the
answer thereto has been filed, but within such time as not to delay the
trial. For the purposes of this motion, all allegations of fact in mover’s
pleadings not denied by the adverse party or by effect of law, and all

11

allegations of fact in the adverse party’s pleadings shall be considered
true.

Here, Coastal withdrew its first amended and supplemental petition after this

Court’s March 13, 2024 decision that found that its original petition stated a viable

cause of action, thus, reversing the trial court’s grant of the peremptory exception

of no cause of action. See Coastal Fire Prot., L.L.C., 2024-0066, 390 So.3d at 278.

When an amended and supplemental petition is properly filed, its withdrawal does

not automatically dispose of the original petition unless specific procedural steps

are taken. Moreover, “an amended pleading does not supersede the original

pleading where it is evident that it is not designed as a substitute therefor or

intended to take its place. . . .” Santiago v. Tulane Univ. Hosp. & Clinic, 2012-

1095, p. 16 (La. App. 4 Cir. 4/24/13), 115 So.3d 675, 686 (quoting Coleman’s

Heirs v. Holmes’ Heirs, 147 So.2d 752, 754 (La. Ct. App. 1962)). Coastal provided

in its supplemental and amended petition that it “reasserts and reavers all the

allegations contained in its original Petition” and added an additional paragraph to

the original petition. As such, the language in Coastal’s supplemental and amended

petition preserved its original petition.

Additionally, as referenced in La. C.C.P. art. 965, a party may move for

judgment of the pleadings after an answer has been filed. Here, Custom concedes

that it did not file an answer to Coastal’s supplemental and amended petition.

Therefore, the trial court did not err in denying Custom’s motion for judgment on

the pleadings.

Motion for Summary Judgment

Lastly, Custom argues that the trial court misinterpreted La. C.C.P. art. 966

when it concluded it could not consider late filed pleadings and admissions that

12

were previously filed into the court record. Custom further argues that Coastal

failed to meet its burden of proof on the motion for summary judgment because

Coastal did not prove all elements of its claim and failed to address the verified

answer and reconventional demand.

An appellate court reviews the grant or denial of a summary judgment

motion de novo, using the same standard employed by the trial court in deciding

the merits of the motion; accordingly, an appellate court need not accord deference

to the facts and evidence as analyzed by the trial court or its reasons for judgment.

See Smith v. State, 2018-0197, p. 3 (La. App. 4 Cir. 1/9/19), 262 So.3d 977, 980

(citations omitted). The summary judgment procedure is favored and “designed to

secure the just, speedy, and inexpensive determination of every action . . . .” La.

C.C.P. art. 966(A)(2). Its intended purpose is to “pierce the pleadings and to assess

the proof in order to see whether there exists a genuine need for trial.” See Cutrone

v. English Turn Prop. Owners Ass’n, Inc., 2019-0896, p. 7 (La. App. 4 Cir. 3/4/20),

293 So.3d 1209, 1214 (quoting Bridgewater v. New Orleans Reg’l Transit Auth.,

2015-0922, p. 4 (La. App. 4 Cir. 3/9/16), 190 So.3d 408, 411). “[A] motion for

summary judgment shall be granted if the motion, memorandum, and supporting

documents 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.C.P. art. 966(A)(3). The

mover’s burden of proof in a motion for summary judgment is governed by La.

C.C.P. art. 966(D)(1):

The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the
court on the motion for summary judgment, the mover’s burden on the
motion does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point out to the
court the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the

13

adverse party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

Louisiana Code of Civil Procedure art. 967(B) further provides:

When a motion for summary judgment is made and supported as
provided above, an adverse party may not rest on the mere allegations
or denials of his pleading, but his response, by affidavits or as
otherwise provided above, must set forth specific facts showing that
there is a genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be rendered against him.

Here, Coastal argued in its motion for summary judgment that there is no

genuine issue of material fact that: 1) it timely filed a valid lien under the

Louisiana Private Works Act;8 2) Custom and Coastal entered into an agreement

for Coastal to perform certain fire protection work for the project and it is owed

$13,559.28 for the work it performed; 3) Custom misapplied the payment of

$13,559.28 it received from TSM for the work performed and invoiced by Coastal,

and,9 4) Custom violated Louisiana’s Open Account Statute by failing to pay the

$13,559.28 owed to Coastal after demand for payment.10

8 The procedure for preserving a privilege granted under the Private Works Act is set forth in La.

R.S. 9:4822:
A. Except as otherwise provided in Subsections B, C, and D of this Section, a
person granted a privilege under R.S. 9:4801 or a claim and privilege under R.S.
9:4802 shall file a statement of his claim or privilege no later than sixty days
after:
(1) The filing of a notice of termination of the work.
(2) The substantial completion or abandonment of the work, if a notice of
termination is not filed.
9 La. R.S. 9:4856(A) provides:

No contractor, subcontractor, or agent of a contractor or subcontractor, who has
received money on account of a contract for the construction, erection, or repair
of a building, structure, or other improvement, including contracts and mortgages
for interim financing, shall knowingly fail to apply the money received as
necessary to settle claims to sellers of movables or laborers due for the
construction or under the contract. Any seller of movables or laborer whose
claims have not been settled may file an action for the amount due, including
reasonable attorney fees and court costs, and for civil penalties as provided in this
Section.
10 La. R.S. 9:2781(A) provides:

14

To support its motion for summary judgment, Coastal attached numerous

exhibits, namely: its petition; requests for admissions; its second set of requests for

admissions; its lien; land records; receipt for lien filing costs; the notice of lien sent

to TSM and Custom on July 1, 2022; the notice of lis pendens; emails to counsel

for TSM and Custom submitting Coastal’s requests for admissions on March 21,

2023 and June 1, 2023; TSM and Custom’s September 13, 2023 motion to

withdraw matters deemed admitted wherein counsel for TSM and Custom

provided that he received Coastal’s requests for admissions on or about June 7,

2023; legal fee invoices; City of New Orleans certificate of occupancy and

completion issued on August 16, 2023; and affidavits of Leslie J. Hill and Mark

Sanderson.

Leslie J. Hill, an associate attorney at Clement & Associates, Counsels at

Law, L.L.C., attested that the firm represents Coastal. Ms. Hill further attested that

on March 21, 2023, she emailed the requests for admissions to TSM and Custom’s

counsel of record, Gregory Swafford and copied her co-counsel, David C.

Clement, and she did not receive any notification that the email was not delivered.

Ms. Hill indicated in her affidavit that she did not receive any responses to the

requests for admissions by April 20, 2023. Moreover, Ms. Hill provided that she

When any person fails to pay an open account within thirty days after the claimant
sends written demand therefor correctly setting forth the amount owed, that
person shall be liable to the claimant for reasonable attorney fees for the
prosecution and collection of such claim when judgment on the claim is rendered
in favor of the claimant. Citation and service of a petition shall be deemed written
demand for the purpose of this Section. If the claimant and his attorney have
expressly agreed that the debtor shall be liable for the claimant's attorney fees in a
fixed or determinable amount, the claimant is entitled to that amount when
judgment on the claim is rendered in favor of the claimant. Receipt of written
demand by the person is not required.

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emailed the second requests for admissions propounded on TSM and Custom to

Mr. Swafford on October 13, 2023, and she never received a response.

Mark Sanderson, the general manager of Coastal attested that on November

25, 2019, Coastal submitted a proposal to Custom to perform the NFPA 13R wet-

pipe sprinkler system and the proposal was accepted by Custom on December 10,

2019. Mr. Sanderson provided that Coastal performed all work pursuant to the

proposal and submitted six invoices to Custom for the work performed pursuant to

the proposal. Mr. Sanderson attested that Coastal did not receive payment for

invoice 29469 in the amount of $13,599.28 and thereafter, on July 1, 2022, Coastal

filed its Statement of Claim or Privilege into the land records of Orleans Parish.

We find that Coastal presented sufficient evidence and testimony to carry its

burden of proof at trial. As such, the burden has shifted to Custom. While Custom

filed an opposition to Coastal’s motion for summary judgment, it did not produce

factual support through the use of supporting documents to show the existence of a

genuine issue of material fact. Pursuant to La. C.C.P. art. 966(D)(1), “[t]he burden

is on the adverse party to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.”

Custom’s argument that the trial court should have considered late copies of

documents previously filed into the record is misplaced. Louisiana Code of Civil

Procedure art. 966 provides:

(A)(4)(a) The only documents that may be filed or referenced in
support of or in opposition to the motion are pleadings, memoranda,

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affidavits, depositions, answers to interrogatories, certified medical
records, certified copies of public documents or public records,
certified copies of insurance policies, authentic acts, private acts duly
acknowledged, promissory notes and assignments thereof, written
stipulations, and admissions. The court may permit documents to be
filed in any electronically stored format authorized by court rules or
approved by the clerk of the court.

(b) Any document listed in Subsubparagraph (a) of this Subparagraph
previously filed into the record of the cause may be specifically
referenced and considered in support of or in opposition to a motion
for summary judgment by listing with the motion or opposition the
document by title and date of filing. The party shall concurrently with
the filing of the motion or opposition furnish to the court and the
opposing party a copy of the entire document with the pertinent part
designated and the filing information.

Custom’s memorandum in opposition to the motion for summary judgment

and list of material facts disputed reference its reconventional demand and

responses to the requests for admission; however, Custom failed to comply with

Article 966(A)(4)(b). Custom did not list with its opposition the documents by title

and date of filing, and it failed to furnish the court and opposing party with a copy

of the entire document.

Moreover, Custom’s argument that Coastal ignored its verified answer and

reconventional demand is without merit. In light of Custom’s failure to comply

with Article 966(A)(4)(b), its answer and reconventional demand was not provided

to establish the existence of a genuine issue of material fact. Furthermore, Custom

could not rely on the mere allegations or denials of its pleading to show that there

is a genuine issue for trial. See La. C.C.P. art. 967(B).

Based on our review of the record, we find that Coastal met its burden in

proving that it was a subcontractor on the project, that it performed work on the

project that went unpaid, and that it timely filed a lien. Therefore, the trial court did

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not err in determining that there is no genuine issue of material fact and that

Coastal was entitled to summary judgment as a matter of law.

CONCLUSION

For the foregoing reasons, the December 12, 2024 judgment, which granted

Coastal’s motion for summary judgment is affirmed.

AFFIRMED

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