Fidelity & Deposit Co. v. FitzGerald Contractors, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 31, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk

No. 04-30598 c/w 05-30074

))))))))))))))))))))))))))

In The Matter Of: WHITAKER CONSTRUCTION COMPANY, INC.

Debtor

- - - - - - - - - - - - - - - - - -

FIDELITY & DEPOSIT COMPANY OF MARYLAND,

Appellee,

v.

FITZGERALD CONTRACTORS, INC.,

Appellant.

__________________________________________________

In The Matter Of: WHITAKER CONSTRUCTION COMPANY, INC.

Debtor

- - - - - - - - - - - - - - - - - - - -

FIDELITY & DEPOSIT COMPANY OF MARYLAND,

Appellant,

v.

FITZGERALD CONTRACTORS, INC.,

Appellee.

Appeals from the United States District Court
for the Western District of Louisiana
Before GARWOOD, PRADO and OWEN, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

This appeal is the consolidation of two actions, both of

which involve FitzGerald Contractors, Inc. (“FitzGerald”), a

subcontractor, seeking compensation under Louisiana’s Private

Works Act, LA. REV. STAT. ANN. §§ 9:4801-55 (West 1991 & Supp.

2005) (“PWA”), from Fidelity & Deposit Company of Maryland, Inc.

(“F&D”), a surety, for work performed on construction projects in

Louisiana. F&D seeks to avoid liability by asserting the defense

of peremption under subsection 9:4813(E) of the PWA. Two

questions are presented on appeal: (1) whether FitzGerald’s

filing of an involuntary bankruptcy petition against the general

contractor constituted an “assert[ion of] claims or rights” under

subsection 9:4813(E); and (2) whether the peremption period

defined in section 9:4822 is triggered when notice of the

construction contract is filed but notice of termination is not.

Answering both questions in the negative, the district court

found for F&D in the Biomedical Project matter and FitzGerald in

the Lifeshare Project matter. For the reasons below, we AFFIRM.

I. Background

Whitaker Construction Company, Inc. (“Whitaker”), as

contractor, entered into a standard-form construction contract

with the Biomedical Research Foundation of Northern Louisiana, as

owner, to build a biotechnology manufacturing facility in

2
Shreveport, Louisiana (“Biomedical Project”). The contract was

entered into the Caddo Parish, Louisiana mortgage books on April

28, 2000. It required Whitaker to furnish surety bonds

guaranteeing payment to subcontractors. F&D, as surety, issued

bonds with a penal sum of $9,755,904.00 on April 25, 2000.

Whitaker, as contractor, also entered into a contract with

Blood Center Properties, Inc., as owner, to build a facility for

Lifeshare Blood Centers in Shreveport, Louisiana (“Lifeshare

Project”). This contract was entered into the Caddo Parish

mortgage books on July 27, 2000. It also required Whitaker to

furnish a surety bond. F&D, again as surety, issued a bond in

the amount of $3,541,953.00 on July 26, 2000. For both the

Biomedical and Lifeshare projects, the contracts were recorded

and the bonds issued pursuant to the PWA.

Effective August 24, 2000, Whitaker and FitzGerald executed

two subcontracts, one relating to the Biomedical Project and one

to the Lifeshare Project, in each of which FitzGerald agreed to

perform work on the facility.

For the Biomedical Project, a Certificate of Substantial

Completion was recorded on September 17, 2001 in the mortgage

records for Caddo Parrish. For the Lifeshare Project, no

official filing was made regarding completion, though other

events occurred that suggest the project was completed: on June

29, 2001, the Estopinal Group, architect for the project,

compiled a punchlist; minutes of the Lifeshare Project progress

3
meetings indicate the facility was ready to be occupied between

July 23 and 26; and, on July 25, the City of Shreveport issued a

certificate of occupancy.

II. Procedural History

On August 9, 2002, FitzGerald and two other creditors filed

an involuntary bankruptcy petition against Whitaker in bankruptcy

court in the Western District of Louisiana. The standard Form B5

filing had the following information: (1) Whitaker’s identity as

debtor; (2) the nature of Whitaker’s business as general

contractor; (3) the amount FitzGerald was owed, $586,258.17,

including liened amounts of $418,596.58 and un-liened amounts of

$167,661.59; (4) that the petition was being filed under Chapter

7 of the Bankruptcy Code; and (5) an assertion of petitioners’

eligibility to file under 11 U.S.C. § 303(b). It did not invoke

the PWA nor mention specifically amounts owed under it.1

On August 19, 2002, F&D filed a notice of appearance in the

Whitaker bankruptcy proceeding. On September 6, Whitaker filed

an answer to the involuntary petition and a Motion to Convert

Case to Chapter 11 Proceeding with a corresponding memorandum in

support. On September 12, the bankruptcy court granted the Order

of Relief for the involuntary petition and converted the matter

to a voluntary Chapter 11 case. On January 9, 2003, FitzGerald

1
The parties do not dispute that the amounts in the filing
included the $82,473.89 owed for work on the Biomedical Project
and the $81,689.00 owed for work on the Lifeshare Project.

4
filed its proof of claim for all of its claims, liened and un-

liended, in the Chapter 11 bankruptcy proceeding.

Regarding the Biomedical Project, FitzGerald filed an

adversary complaint in the bankruptcy court on April 16, 2003,

naming F&D as defendant. In its complaint, FitzGerald alleged

that F&D was liable as surety for payment of $82,473.89 plus

interest for amounts Whitaker failed to pay FitzGerald for work

it completed on the Biomedical Project. On May 16, F&D answered

the complaint, denying FitzGerald’s allegations and asserting the

defense of peremption. On June 19, F&D moved for summary

judgment; FitzGerald made a cross-motion for summary judgment or,

alternatively, partial summary judgment. After hearing argument,

the bankruptcy court granted FitzGerald’s motion for summary

judgment in part, and denied F&D’s motion. It determined that

the involuntary bankruptcy petition was a timely assertion of

rights withing the meaning of § 9:4813(E) and that the bankruptcy

filing did not stay FitzGerald’s rights under the PWA. The

bankruptcy court entered judgment on September 2.

F&D appealed to the district court on September 3, 2003.

The district court determined that the involuntary bankruptcy

petition was not an assertion of rights for purposes of

subsection 9:4813(E). It reversed the bankruptcy court’s

judgment with respect to this issue and affirmed its judgment

with respect to finding that the bankruptcy filing did not stay

FitzGerald’s rights. The district court issued its final

5
judgment on May 26, 2004. FitzGerald appealed on June 17, 2004,

challenging the district court’s determination regarding the

involuntary bankruptcy petition in the Biomedical matter.

Regarding the Lifeshare Project, FitzGerald filed an

adversary complaint in the bankruptcy court on July 16, 2003,

naming F&D as defendant. In it, FitzGerald alleged that F&D was

liable as surety for payment of $81,689.00 plus interest for

amounts Whitaker failed to pay FitzGerald for work it completed

on the Lifeshare Project. On August 6, F&D answered the

complaint, denying FitzGerald’s allegations and asserting the

defense of peremption. On October 2, FitzGerald moved for

summary judgment or, alternatively, partial summary judgment. On

January 9, 2004, F&D filed a cross-motion for summary judgment.

After hearing argument, the bankruptcy court granted FitzGerald’s

motion for summary judgment in part, and denied F&D’s motion. As

in the Biomedical matter, it determined that the involuntary

bankruptcy petition was a timely assertion of rights within the

meaning of the PWA. The bankruptcy court also held that, because

no certificate of substantial completion was filed for the

Lifeshare Project, subsection 9:4822(C) applied, establishing a

peremption period of one year and sixty days. The bankruptcy

court entered judgment on March 26.

F&D appealed to the district court, the same court as in the

Biomedical matter, on March 29, 2003. The district court

affirmed the bankruptcy court’s result, but on different grounds.

6
Because notice of the contract had been filed for the Lifeshare

Project but notice of termination had not, the district court

held that subsection 9:4822(A) applied and that the peremption

period had not yet begun to run. It found that FitzGerald’s July

2003 filing of the adversary proceeding was a timely assertion of

its rights under the PWA. The district court issued its final

judgment on December 10. F&D appealed the Lifeshare matter on

December 27, 2004.

Both the Biomedical and the Lifeshare matters are

consolidated on appeal.

III. Standard of Review

We review the district court’s decisions by the same

standards it applied to the decisions of the bankruptcy court.

Kennard v. MBank Waco, N.A. (Matter of Kennard), 970 F.2d 1455,

1457 (5th Cir. 1992); In re Sinclair, 417 F.3d 527, 529 (5th Cir.

2005). For questions of law, the standard is de novo. Id. at

1458.

IV. Discussion

A. The Private Works Act

Both questions before us require interpretation of the

Private Works Act, which regulates the rights and

responsibilities of persons involved in the construction and

improvement of immovables. See LA. REV. STAT. ANN. §§ 94801-55,

Exposé des Motifs (West 1991). The PWA protects contractors,

7
laborers, suppliers of material and others who contribute to

construction projects by granting them a privilege on the

immovable to secure the price of their work and obligating owners

who use a general contractor to require that contractor to record

his contract and secure a surety bond guaranteeing payment to

contributors. Id. An owner who fails to comply may be

personally liable, even to those with whom he is not in

contractual privity; and a general contractor who fails to comply

may lose his privilege in the immovable. Id.

The rights created by the PWA extinguish after a period of

time, the length of which is defined by statute and depends on a

variety of factors. The present case involves the liability of

general contractor Whitaker’s surety, F&D, to a subcontractor,

FitzGerald. Subsection 9:4813(E) states that “[t]he surety’s

liability . . . is extinguished as to all persons who fail to

institute an action asserting their claims or rights against the

owner, the contractor, or the surety within one year after the

expiration of the time specified in R.S. 9:4822 for claimants to

file their statement of claim or privilege.” § 9:4813(E).

Timely institution of an action preserves the claim.

The first question is whether FitzGerald’s filing of the

involuntary petition for Whitaker’s bankruptcy constitutes an

action asserting its claim against F&D under subsection

9:4813(E). If it does constitute such an action, FitzGerald

8
timely instituted its action and both of its claims are

preserved.2 If it does not, FitzGerald’s claim in the Biomedical

matter is perempted. To decide whether the FitzGerald’s

Lifeshare claim is perempted as well, we must determine if the

time period specified in section 9:4822 expired, or for that

matter began to run. Under subsection 9:4813(E), if the period

specified in section 9:4822 never ended, the one year period

never ran and FitzGerald’s July 2003 adversary proceeding in the

Lifeshare matter was timely and its claim preserved.

B. The Involuntary Bankruptcy Petition

First, this Court must decide whether FitzGerald’s

participation in the August 9, 2002 involuntary bankruptcy

petition against Whitaker preserved its claims against peremption

under subsection 9:4813(E). That provision extinguishes the

surety’s liability to those who fail to “institute an action

asserting their claims or rights” within a year after the period

determined by § 9:4822. § 9:4813(E). Although the appropriate

length of the peremption period for the Lifeshare project is

disputed, the parties agree that, if the period did in fact run,

the involuntary bankruptcy petition was timely in both matters.

2
Because no certificate of completion was filed for the
Lifeshare Project, there is controversy as to the appropriate
length, and for that matter the existence, of the peremption
period in the Lifeshare matter. This is discussed in Section C,
infra. However, because both parties agree that both claims
would be preserved if we answer the first question in the
affirmative, that is where we begin.

9
The question is whether the petition constituted an “action

asserting [its] rights and claims” under § 9:4813(E).3

The involuntary bankruptcy petition identified Whitaker as

debtor, its business and the amount it owed FitzGerald:

$586,258.17, including liened amounts of $418,596.58 and un-

liened amounts of $167,661.59. It did not mention the PWA or

specify claims made under the Act. In both the Biomedical and

Lifeshare matters, the bankruptcy court determined that this

constituted an assertion of FitzGerald’s claim or right. The

district court in the Biomedical matter disagreed, determining

that the involuntary bankruptcy petition did not provide notice

sufficient to preserve FitzGerald’s rights under the PWA.4 It

3
The parties do not dispute that a claim valid for PWA
purposes and made against general contractor Whitaker will also
count against surety F&D. Under subsection 9:4813(E), a person
must assert their claims or rights “against the owner, the
contractor, or the surety.” As the Louisiana Third Circuit Court
of Appeal held in Hershell Corp. v. Fireman’s Fund Insurance Co.,
743 So. 2d 698, 701(La. Ct. App. 1999), “suit against the
contractor, owner or surety preserves the claim. It is a matter
of preservation of the claim or privilege, not of interruption or
suspension of the time period for preserving the claim or
privilege” (emphasis in the original).
4
It also determined in dicta that, unlike prescription,
under Louisiana law peremption could not be renounced,
interrupted or suspended. Peremption and prescription are
separate concepts under Louisiana law. In Metropolitan Erection
Co., v. Landis Construction Co., 627 So. 2d 144 (La. 1993), the
Louisiana Supreme Court explained the distinction:

A peremptive period is a period of time fixed by
law for the existence of a right, and the right is
extinguished unless timely exercised within the period.
LA.CIV.CODE art. 3458. On the other hand, liberative

10
found that “general allegations regarding amounts due and

payable, as found in the involuntary petition relied upon by

FitzGerald, without any identifying language, do not provide

notice sufficient to preserve FitzGerald’s rights under the

LPWA.” Fid. & Deposit Co. v. FitzGerald Contractors, Inc., No.

03-1757 (W.D. La. May 26, 2004).5

1. The Petition did not Provide Sufficient Notice

Although prescription and peremption are distinct concepts,

at oral argument both parties agreed that the peremption period

at issue should be treated as a prescriptive period for purposes

of preserving the claim. Therefore, we treat it as such while

declining to adopt affirmatively their interpretation of

Louisiana law.

prescription is a mode of barring actions to enforce a
legal right as a result of inaction for a period of
time. LA.CIV.CODE art. 3447. The right is not
extinguished when the prescriptive period expires
without the filing of an action; enforcement of the
right is merely barred unless the obligee fails to
object or unless prescription was interrupted or
suspended. Peremption, by contrast, may not be
interrupted or suspended.

Id. at 147. The Metro Erection court continued on to describe
the time period in subsection § 9:4813(E) as peremptive: “a right
against a surety under LA.REV.STAT. 9:4813(E) involves a period of
peremption and becomes extinguished if not asserted within the
period of limitation, which cannot be suspended or interrupted.”
Id. at 148. For reasons explained below, in the present case we
treat peremption like prescription.
5
The Lifeshare court did not address the issue, choosing
instead to affirm the bankruptcy court on alternative grounds
discussed in Section C, infra.

11
 Prescription is interrupted under Louisiana law “when the

obligee commences action against the obligor, in a court of

competent jurisdiction and venue.” LA. CIV. CODE ANN. art 3462;

see Hensgens v. Deere & Co., 869 F.2d 879, 881 (5th Cir. 1989).

Louisiana courts have interpreted the meaning of “commenc[ing]

action” for purposes of interrupting prescription. Determining

that a workmen’s compensation suit filed on behalf of a plaintiff

who died in an unrelated accident prior to filing interrupted

prescription, the Louisiana Supreme Court said that “the essence

of interruption of prescription by suit has been notice to the

defendant of the legal proceedings based on the claim involved.”

Nini v. Sanford Bros., Inc., 276 So. 2d 262, 264-65 (La. 1973).

As we have recognized, the Court in Nini adopted a broad view of

when prescription could be interrupted.

[T]he Court in Nini has, to all appearances, rejected
this narrower view. There National Surety was not
treated as a narrow exception carved out of the general
rule but as illustrative of the general rule itself.
It is notice not of the plaintiff’s intention to assert
his demand, but of any demand stemming from the same
tortious occurrence or conduct, which interrupts
prescription as to subsequent demands on that “cause of
action,” at least to the extent that the first demand
sufficiently implies the second.

Louviere v. Shell Oil Co., 509 F.2d 278, 287 n.9 (5th Cir.

1975)(reversing dismissal and concluding that “suit by the

employer’s subrogated insurer to recover benefits paid an injured

employee under the Longshoremen’s and Harbor Workers’

12
Compensation Act will interrupt prescription to permit a

subsequent suit by the employee for his damages arising out of

the same occurrence”).

The Nini standard allows flawed or misdirected filings to

interrupt prescription. In Batson v. Cherokee Beach and

Campgrounds, Inc., 530 So. 2d 1128, 1130 (La. 1988), where

plaintiff had brought a second tort suit after the first one’s

dismissal for failure to state a cause of action, the court

determined that “prescription will be interrupted whether or not

the original pleading sets forth a cause of action.” In Parker

v. Southern American Insurance Co., 590 So. 2d 55 (La. 1991), the

plaintiff had filed a compensation suit for her husband’s death

against his employer and later filed a tort action against that

employer’s insurer. In that case, the former suit interrupted

the prescription period for the latter because a “pleading which

alleges a factual occurrence and liability of a named defendant

interrupts prescription despite failure to state a cause of

action by alleging negligence.” Id. at 56. As the Louisiana

Supreme Court explained,

The fundamental purpose of prescription statutes is
only to afford a defendant economic and psychological
security if no claim is made timely, and to protect him
from stale claims and from the loss of non-preservation
of relevant proof. They are designed to protect him
against lack of notification of a formal claim within
the prescriptive period, not against pleading mistakes
that his opponent makes in filing the formal claim
within the period.

13
Giroir v. S. La. Med. Ctr., Etc., 475 So.2d 1040, 1045 (La.

1985)(reversing judgment of court of appeals and determining that

amendments changing capacity of suing husband and adding children

as wrongful death plaintiffs successfully related back).

This Court has applied Nini to allow certain legal actions

which are not lawsuits to interrupt prescription. In McGee v.

O’Connor, 153 F.3d 258 (5th Cir. 1998), we held that filing of

proofs of claim in a bankruptcy interrupts prescription of

contract claims under Louisiana law. Drawing an analogy between

proofs of claim in bankruptcy proceedings and those in succession

proceedings–which under the relevant Louisiana statute suspend

prescription–we said that the “key to Parker is that the

defendant there received notice.”6 Id. at 262 (emphasis in the

original). As a result, worker’s compensation claims will

interrupt the running of prescription for tort claims against

third parties. See Drury v. U.S. Army Corps of Eng’rs., 359 F.3d

366, 368 (5th Cir. 2004).

Nini is, of course, not without its limits. Certain federal

administrative actions will not interrupt prescription of state

6
Prescription is interrupted when the prescriptive period
restarts; it is suspended when the period stops to run for an
applicable time. Rogers v. Corrosion Prods., Inc., 42 F.3d 292,
293 (5th Cir. 1995). The distinction between the two is
irrelevant for present purposes, as the question is whether the
involuntary bankruptcy petition preserved the claim. The quantum
of legal notice does not determine whether a prescriptive period
is suspended or interrupted.

14
law claims. In Drury, we determined that a suit under the

Federal Tort Claims Act did not interrupt prescription for a

state tort suit. Drury, 359 F.3d at 368-69. Likewise, in

Fitzgerald v. United States Department of Veterans Affairs, we

noted that no authority supported the proposition that filing an

administrative Title VII complaint would interrupt prescription

of state law discrimination claims. 121 F.3d 203, 210 (5th Cir.

1997). The lynchpin, again, is notice to the defendant.

FitzGerald argues that the involuntary bankruptcy petition

gave sufficient notice of its claim to Whitaker to preserve its

claim, and that this Court should extend Nini to the present

case. It emphasizes that the $586,258.17 amount claimed included

the $82,473.89 amount that was the subject of the Biomedical

proceedings and the $81.689.00 amount that was the subject of the

Lifeshare proceedings.

We disagree. The involuntary bankruptcy petition did not

provide sufficient notice to prevent peremption and preserve the

claim. The amounts owed under the PWA are indistinguishable in

the involuntary bankruptcy petition from Whitaker’s traditional

contractual obligations to FitzGerald.

While both the contractual and PWA obligations stem from the

same set of events, in cases reliant on Nini, more information

was available than is here. In O’Connor, the proofs of claim

were for the debtor’s obligation. 153 F.3d at 262. We

15
specifically distinguished that case from one in which a proof of

claim for the proceeds of an auction house’s bankruptcy did not

interrupt prescription in a tortious conversion suit against its

former employee. Id. at 262 n.5 (citing Hilbun v. Goldberg, 823

F.2d 881 (5th Cir. 1987)). Here, the petition is against

Whitaker, not its surety. More importantly, the legal and

factual bases for the debt are not identified. In Parker and

Nini, the factual and legal bases of liability were spelled-out.

590 So.2d at 56; 276 So.2d at 266. The involuntary bankruptcy

petition includes no references to the PWA, nor to the Biomedical

Project, the Lifeshare Project or any other private work. It

indicates merely the creditor and the amount owed.

O’Connor does not identify precisely the quantum of

description that constitutes proper notice; but we believe the

line falls beyond the reach of this involuntary bankruptcy

petition. In Abramson v. Boedeker, we noted that an involuntary

bankruptcy petition “serves as even less notice than the

generalized complaint. . . .The ‘right’ of a creditor to hang on

to his self-help priority may not, therefore, be equated with

concepts of fair notice from pleadings.” 379 F.2d 741, 745 n.7

(5th Cir. 1967)(evaluating such a petition in the context of

determining whether it or an amended complaint established the

date of bankruptcy). More substantial notice is required to

preserve a PWA claim.

16
 This conclusion is bolstered by the instruction of the

Louisiana Supreme Court in Metro Erection, that PWA rights were

“in derogation of common rights and must be strictly construed

against those to whom the right is accorded.” Metro Erection,

627 So. 2d at 148.

2. The Petition was not an Informal Proof of Claim

Alternatively, FitzGerald argues that the involuntary

bankruptcy petition qualifies as an informal proof of claim, and

that O’Connor requires the claim be preserved. F&D responds that

the doctrine of informal proof of claim does not apply, both

because the doctrine is an equitable one and because FitzGerald

timely filed. In In re Nikoloutsos, 199 F.3d 233 (5th Cir.

2000), we adopted a five-part test for qualifying something as an

informal proof of claim:

(1) [T]he claim must be in writing; (2) the writing must
contain a demand by the creditor on the debtor’s estate; (3)
the writing must evidence an intent to hold the debtor
liable for such debt; (4) the writing must be filed with the
bankruptcy court; and (5) based upon the facts of the case,
allowance of the claim must be equitable under the
circumstances.

Id. at 236. The parties do not dispute that the first four

conditions have been met in the present case.

In Nikoloutsos, the claimant, a woman seeking to enforce a

judgment against her husband for maliciously assaulting her,

filed her complaint late. Orally, the bankruptcy court seemed

willing to accept the complaint as a proof of claim; but later,

17
without explanation, it did not recognize it as such. This Court

noted that “the rules of equity require being flexible with

regard to form when justice requires.” Id. at 237 (punctuation

omitted). Our other applications of the informal proof of claim

doctrine have rectified similar injustices but not mere mistakes

in advocacy. See, e.g., Greyhound Lines, Inc. v. Rogers, 62 F.3d

730 (5th Cir. 1995) (regarding an informal proof of claim where

claimant failed to file because of concomitant court-ordered

alternative dispute resolution program); cf. DeCell &. Assocs.

v. FDIC, 36 F.3d 464 (5th Cir. 1994) (holding there was no

informal proof of claim where assignee of letter of credit sued

FDIC in its corporate capacity but not in its receivership

capacity and failed to make a deposit insurance claim).

FitzGerald was represented by counsel and had the opportunity to

raise its claim under the PWA. It chose to file only the

petition for involuntary bankruptcy within the peremption period.

Equity does not support application of the doctrine in this

instance. Even if this Court were to consider the present

involuntary bankruptcy petition an informal claim, for O’Connor

to apply, FitzGerald would still have had to provide sufficient

notice. It did not, so the district court’s judgment is

affirmed.

3. Resolution of the Biomedical Matter

A certificate of substantial completion was filed for the

18
Biomedical project on September 17, 2001. The section 9:4822

period elapsed thirty days later, and the section 9:4813 period

one year after that. Thus, FitzGerald had until October 17, 2002

to institute an action asserting its claim. The only action it

undertook before that deadline was joining the involuntary

bankruptcy petition against Whitaker on August 9, 2002. Because

that action did not constitute an “action asserting [its] rights

and claims” under § 9:4813(E), FitzGerald’s claim in the

Biomedical matter is perempted.

C. Triggering of the Peremptive Period

Because we hold that the involuntary bankruptcy petition

could not preserve FitzGerald’s claim, this Court must decide a

second question regarding the Lifeshare matter: whether, when

notice of a contract has been filed but notice of termination has

not, the one-year extinguishment period in subsection 9:4813(E)

is triggered; and, if so, when. Section 9:4822 provides, in

pertinent part:

A. If a notice of a contract is properly and timely
filed in the manner provided by R.S. 9:4811, the persons to
whom a claim or privilege is granted by R.S. 9:4802 shall
within thirty days after the filing of a notice of
termination of the work:

(1) File a statement of their claims or privilege.
(2) Deliver to the owner a copy of the statement of
claim or privilege.

. . .

C. Those persons granted a claim and privilege by R.S.
9:4802 for work arising out of a general contract, notice of
which is not filed, and other persons granted a privilege

19
 under R.S. 9:4801 or a claim and privilege under R.S. 9:4802
shall file a statement of their respective claims and
privileged within sixty days after:

(1) The filing of a notice of termination of the work;
or
(2) The substantial completion or abandonment of the
work; if a notice of termination is not filed.

LA. REV. STAT. ANN. § 9:4822(A), (C).7 In the Lifeshare matter,

while the construction contract was properly and timely recorded

on July 25, 2000, no notice of termination was ever filed.

Still, other evidence suggests the project was completed: on June

29, 2001, the Estopinal Group, architect for the Lifeshare

Project, compiled a punchlist; minutes of the project’s progress

meetings indicate it was ready to be occupied between July 23 and

26; and, on July 25, the City of Shreveport issued a certificate

of occupancy.

The courts below, as well as the parties, differ on the

application of section 9:4822 to these facts. Ruling from the

bench, the bankruptcy court determined that the specified period

began to run sixty days after the issuance of the certificate of

occupancy.8 Whitaker Constr. Co. v. FitzGerald Contractors, Inc.

(In re Whitaker Constr. Co.), No. 02-12642 (Bankr. W.D. La. Mar.

7
LA. REV. STAT. ANN. § 9:4802(A)(1) grants subcontractors
like FitzGerald claims for the price of their work.
8
Because it determined that FitzGerald’s filing of the
involuntary bankruptcy petition was a timely assertion of rights,
the bankruptcy court determined that the claims were preserved.

20
26, 2004). The district court disagreed, holding that “because a

notice of contract was filed but a notice of termination or

certificate of substantial completion was not filed, the 30-day

tolling period never began to run.” Fid. & Deposit Co. of

Maryland v. FitzGerald Contractors, Inc., No. 03-1757 c/w No. 04-

0913 (W.D. La. Dec. 10, 2004). F&D argues that subsection

9:4822(C) applies when no notice of termination is filed, and

that the peremptive period began to run sixty days after issuance

of the certificate of occupancy.9 FitzGerald contends that

subsection 9:4822(A) governs all situations in which notice of

the contract has been filed, and that its thirty day period does

not begin to run until filing of a notice of termination. If the

peremption period never began to run, FitzGerald’s July 17, 2003

adversary complaint was timely. If it did run, the only timely

filing was the involuntary bankruptcy petition, which does not

suffice to preserve the claim for the reasons discussed in

Section B, supra.

1. The Text of the Statute

9
F&D identifies the issuance of the certificate of
occupancy as the point of substantial completion in accordance
with § 9:4822(H), which reads: “A work is substantially complete
when: (1) The last work is performed on, or materials are
delivered to the site of the immovable or to that portion or area
with respect to which a notice of termination is filed; or (2)
The owner accepts the improvement, possesses or occupies the
immovable, or that portion or area of the immovable with respect
to which a notice of partial termination is filed, although minor
or inconsequential matters remain to be finished or minor defects
or errors in the work are to be remedied.”

21
 In interpreting a Louisiana statute, this Court must be

mindful of the state’s hybrid civil/common law tradition. In the

civil law tradition, the Civil Code is the “solemn expression of

legislative will” to which our Erie obligation applies.

Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776

(5th Cir. 1997) (quoting Shelp v. National Surety Corp., 333 F.2d

431, 439 (5th Cir. 1964)); see also Erie Railroad Co. v.

Tompkins, 304 U.S. 64 (1938). We look to the statute as the

primary source of law. In re Orso, 283 F.3d 686, 695 (5th Cir.

2002). If the statute is unambiguous, our inquiry ends, and we

need go no further. Id. at 693. If it is ambiguous, we consult

other sources of authority.

FitzGerald and the district court contend that the language

of section 9:4822 supports the reading that subsection (A)

applies to situations in which notice of a contract has been

filed and subsection (C) to situations in which it has not.

Subsection 9:4822(A) begins “[i]f a notice of a contract is

properly and timely filed in the manner provided by R.S. 9:4811,

. . . .” The use of the word “if” before a comma implies a

sufficient condition for whatever follows the comma. Here, the

condition is proper and timely filing of the notice of contract.

On this reading of section 9:4822, when this condition is

fulfilled, i.e., when notice of the contract is filed, subsection

(A) applies.

22
 Taken together, the prefatory clauses of the two subsections

also support this reading. While (A) begins with a properly

filed notice of contract, subsection (C) begins “[t]hose persons

granted a claim and privilege by R.S. 9:4802 for work arising out

of a general contract, notice of which is not filed . . .” §

9:4822(C). The language here does not imply a sufficient

condition. Like the one immediately preceding it,10 subsection

(C) begins by defining the group of people to whom it applies.

Since subsection (C) applies to those granted a claim for work

arising out of a contract that is not filed, it applies when the

contract is not filed. If each subsection is understood to apply

exclusively to when a notice of contract has been filed and when

it has not, subsection (A) should govern the present situation

and the peremptive period in subsection 9:4813(E) is not

triggered.

The bankruptcy court and F&D read section 9:4822

differently, limiting subsection (A) to those situations where

both a notice of a contract and a notice of termination have been

filed. Under their reading, subsection (C) operates as a catch-

all category for all other situations. They offer two arguments

to support this reading. First, the wording of subsection (A)

does not provide explicitly for a situation in which notice of

the contract has been filed but notice of termination has not.

10
LA. REV. STAT. ANN. § 9:4822(B) begins “[a] general
contractor to whom a privilege is granted by R.S. 9:4801.”

23
It provides that when a contract has been filed, the person

granted rights must file and deliver a statement within thirty

days of filing of the notice of termination. As the argument

goes, because the subsection assumes the filing of the notice of

termination, it cannot apply when that notice is not filed.

Second, other language in subsection (C) can be read as

applying where notice of the contract has been filed but notice

of termination has not. After identifying § 9:4802 claimants who

work on contracts the notice of which is not filed, subsection

(C) continues “and other persons granted a privilege under R.S.

9:4801 or a claim and privilege under R.S. 9:4802 . . .” §

9:4822(C) (emphasis added).11 The use of the conjunctive “and”

11
Section 9:4802 reads, in pertinent part:
A. The following persons have a claim against the
owner and a claim against the contractor to secure
payment of the following obligations arising out of the
performance of work under the contract:
(1) Subcontractors, for the price of their work.
(2) Laborers or employees of the contractor or a
subcontractor, for the price of work performed at the
site of the immovable.
(3) Sellers, for the price of movables sold to the
contractor, or a subcontractor that become component
parts of the immovable, or are consumed at the site of
the immovable, or are consumed in machinery or
equipment used at the site of the immovable.
(4) Lessors, for the rent of movables used at the
site of the immovable and leased to the contractor or a
subcontractor by written contract.
(5) Prime consultant registered or certified
surveyors or engineers, or licensed architects, or
their professional subconsultants, employed by the
contractor or a subcontractor, for the price of
professional services rendered in connection with a
work that is undertaken by the contractor or
subcontractor. . . .

24
and the words “other persons” suggests a different group than

that identified in the initial clause of the subsection, in other

words a group of people granted a claim or privilege on a

contract notice of which is filed. The “notice of which is not

filed” clause lies immediately after the first clause, suggesting

it does not apply to the “other persons” mentioned later.

F&D argues that the words “other persons” in subsection (C)

include those in FitzGerald’s position. Certainly, “other

persons” refers to those granted privileges under section 9:4801

other than general contractors, since subsection § 9:4822(B)

provides a separate rule for general contractors. But “other

persons” also includes a group of people with a claim and

privilege under section 9:4802. F&D argues that this latter

group includes all section 9:4802 claimants other than those in

the situation to which, it claims, subsection 9:4822(A) applies

exclusively--where notice of the contract and notice of

termination have both been filed.

FitzGerald asserts that the “other persons” under section

9:4802 can be understood in contrast to the earlier mention of

section 9:4802 claimants in the subsection. The earlier mention

reads “persons granted a claim and privilege by R.S. 9:4802 for

work arising out of a general contract,” whereas the “other

persons” includes those with “a claim and privilege under R.S.

LA. REV. STAT. ANN. § 9:4802.

25
9:4802.” § 9:4822(C). The difference between the two is the

“work” in which the former group participates. Section 9:4802

lists categories of construction participants and the sources of

their claims. Subcontractors have a claim “for the price of

their work,” and laborers or employees “for the price of work

performed.” § 9:4802(A)(1), (2). Sellers’, lessors’ and

professionals’ claims are grounded not on work but on the price

or rent of the goods and services they provide. § 9:4802(A)(3)-

(5). FitzGerald argues that, since these last three categories

have claims that are not “for work arising out of a general

contract,” they are the “other persons” contemplated by

subsection (C).

We are not persuaded by FitzGerald’s artful textual

construction of “other persons.” Subsection 9:4802(A)’s preface

to all five categories reads as follows: “[t]he following persons

have a claim . . . to secure payment of the following obligations

arising out of the performance of work under the contract.” The

prefatory clause in subsection 9:4822(C) maps this language

closely, suggesting that all five categories are contemplated.

Ultimately, ambiguity remains as to the identity of section

9:4822(C)’s “other persons.”

Ambiguity exists in the statute, so we must look to

authority beyond the text.

2. Caselaw and Commentary

26
 To resolve textual ambiguity, we consult the interpretations

given to the statute by Louisiana courts. Jesco Const. Corp. v.

NationsBank Corp., 278 F.3d 444, 447 (5th Cir. 2001). In looking

at caselaw, we “steer clear of the common law principle of stare

decisis and . . . apply instead the distinctly Civilian doctrine

of jurisprudence constante.”12 Songbyrd, 104 F.3d at 776. The

decisions of Louisiana courts do not so much establish a rule we

are bound to follow as interpretations invaluable to our

understanding. Id. at 777; Orso, 283 F.3d at 695. Because the

Louisiana Supreme Court has not addressed whether the peremption

period begins to run when notice of the contract has been filed

but notice of termination has not, we make an “Erie guess” as to

what its answer would be. Rogers, 42 F.3d at 295.13 In examining

12
Black's Law Dictionary defines jurisprudence constante as
"[t]he doctrine that a court should give great weight to a rule
of law that is accepted and applied in a long line of cases, and
should not overrule or modify its own decisions unless clear
error is show and injustice will arise from continuation of a
particular rule of law." Black's Law Dictionary 872 (8th ed.
2004). This principle is distinct from stare decisis in that it
"does not command strict adherence to a legal principle applied
on one occasion in the past." Id.
13
The bankruptcy stay alleged to stop the running of
prescription in Rogers came about through the filing of an
involuntary bankruptcy petition, and this Court examined whether
the stay suspended prescription under Louisiana law. Rogers, 42
F.3d at 293, 295 (affirming district court determination that
bankruptcy stay did not stop running of prescriptive period for
delictual actions). However, that case is inapplicable here. In
Rogers, we asked whether the equitable doctrine of contra non
valentem agere non currit praescripto, a judicial creation that
suspends prescription for a limited category of plaintiffs unable

27
the opinions of lower courts, we are mindful that “‘an

intermediate appellate state court . . . is datum for

ascertaining state law which is not to be disregarded by a

federal court unless it is convinced by other persuasive data

that the highest court of the state would decide otherwise.” Id.

(quoting Comm’r. v. Estate of Borsch, 387 U.S. 456, 465 (1967).

In the situation at hand, lower Louisiana courts reach the

conclusion that the peremption period does not trigger. In

Bernard Lumber Co., Inc. v. Lake Forest Constr. Co., the

Louisiana First Circuit Court of Appeal examined section 9:4822

and held:

The terms of the statute clearly establish that La.R.S.
9:4822(A) governs those situations in which a notice of
contract has been filed, and La.R.S. 9:4822(C) governs
those situations in which no notice of contract has
been filed. Therefore, where an owner has neglected to
file a notice of termination, the 30-day period
provided for in La.R.S. 9:4822(A) never begins to run.

572 So. 2d 178, 181 (La. Ct. App. 1990). Bernard Lumber involved

a subcontractor who sued the general contractor and the owner to

recover for services and material supplied for the renovation of

a restaurant. The court considered the legislative intent behind

the Private Works Act, protecting materialmen, laborers and

subcontractors, and determined that the legislature intended to

to bring suit, applied to the plaintiff. Id. at 294. The issue
there was whether a stay resulting from an involuntary bankruptcy
petition excused plaintiff’s failure to file. Here the question
is whether the petition itself is a filing at all.

28
place the onus for filing on the owner. “Where the owner fails or

neglects to take such affirmative action,” the court wrote, “he

should be made to bear the consequences of his failure to file a

notice of termination, not the claimant.” Id. Likewise,

although it reviewed an earlier version of section 9:4822, the

Rowley Co. v. Southbend Contractors, Inc. court determined that

the thirty-day period would not run without proper filing on the

part of the owner. 517 So. 2d 1260 (La. Ct. App. 1987). In

Rowley, a subcontractor sued the general contractor and its

surety to recover labor costs. The Louisiana Fourth Circuit

Court of Appeal determined that the notice of termination’s pithy

description–of the address of the project–was insufficient. Id.

at 1261. While the court was primarily concerned with a

different issue, its conclusion is consistent with the court in

Bernard Lumber: the thirty-day period will not begin to run until

the owner acts.

F&D argues that both Bernard Lumber and Rowley are

inapplicable. It points to the fact that Bernard Lumber did not

involve a suit against a surety; but this distinction is

irrelevant as applied to section 9:4813. That provision, which

creates the surety’s liability, explicitly refers to section

9:4822, which the First Circuit interpreted in Bernard Lumber.

Moreover, subsection (E) says that claims must be asserted

against “the owner, the contractor, or the surety” §

29
9:4813(E)(emphasis added). Whether the defendant is the owner or

the surety is irrelevant for purposes of the claim itself, and a

case determining the time limit for a suit against an owner

applies as well to a suit against a surety. F&D attempts to

distinguish Rowley because that case dealt with the requirements

for a valid notice of termination. But, again, the primary

holding of Rowley is not relevant; the result reached by the

court is: that the time period would not begin to run without a

proper notice of termination. Rowley supports the proposition

that the time period will not commence without affirmative action

on the part of the owner.

The reading given section 9:4822 by Louisiana courts is

bolstered by language in the official comments to section 9:4822.

This language suggests that subsection (A), not subsection (C),

applies to the present situation. “If a notice of contract is

filed,” the commentary reads, “a notice of termination is always

required to commence the 30 day time for filing. Where no notice

of contract is filed the owner may still file a notice of

termination.” § 9:4822 cmt. (a). If a notice of contract is

filed but the notice of termination is not, the comments suggest

that the thirty day period simply does not commence.

Finally, F&D argues that construing subsection 9:822(A) to

mean the time period never triggered would create an “open-ended

lien period” inconsistent with the general structure and policy

30
underlying the PWA. First, it contends the Act is a “unified

scheme,” and that all situations should fit snugly into the

thirty-sixty day structure articulated in section 9:4822.

According to this account, the broad language in subsection

9:4822(C) includes all situations other than that one explicitly

outlined in subsection 9:4822(A), when notice of the contract and

notice of termination have both been filed. This interpretation

does not follow directly from the statutory language, and it is

inconsistent with all of the aforementioned sources. F&D also

asserts that the PWA seeks to balance new rights created in

laborers, contractors and the like with the liability concerns of

sureties. It points to strong peremption language in §

9:4813(E). This may well be true; but it is not our prerogative

to dictate to the Louisiana legislature where to strike the

balance between the rights of sureties and construction

creditors.

A plain reading of subsection 9:4822(A), extant caselaw and

official commentary all bolster our understanding of section

9:4822, that when notice of a contract has been filed but notice

of termination is not, the time period for making claims is not

triggered. Accordingly, we affirm the district court’s

determination that the peremptive period was not triggered.

Because the period was not triggered, FitzGerald’s adversary

action in July 2003 was timely under the PWA; and its claim in

the Lifeshare matter is not perempted.

31
V. Conclusion

For the reasons above, we affirm the judgment of the

district court.

AFFIRMED.

32