Generally, a preliminary notice is a one-time deal, if it is sent correctly and by the applicable deadline it doesn’t need to be thought of again. As has been discussed before, however, in some states sending one preliminary notice may not be enough to get the job done. Three states in which multiple preliminary notices may be required are Texas, Tennessee, and Louisiana. In these states, multiple preliminary notices can be required if the party giving notice provided labor and/or material/equipment in more than one month. Failure to do so can result in a loss of, or at least a diminishment of, the party’s lien rights.
Louisiana Recurring Notice Provision
Up until recently, there was a small bit of confusion regarding whether or not Louisiana actually required multiple preliminary notices in some situations. According to the Louisiana First Circuit Court of Appeals, there was no question, however. In the J. Reed Constructors, Inc. v. Roofing Supply Group, LLC case, that court determined that Louisiana’s preliminary notice requirement for material suppliers was triggered by each month in which material was supplied.
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The court found the statutory language noting preliminary notice was due “on or before seventy-five days from the last day of the month in which the material was delivered…” to clearly and unambiguously require a preliminary notice be sent within 75 days of the last day of each month in which the materials were delivered.
A simple change to the wording of the statute, that the notice was required “on or before seventy-five days from the last day of each month in which the material was delivered . . .” (emphasis added) would make the statute actually unambiguous. However, the ruling of the Louisiana First Circuit Court of Appeals appears as if it will continue to define the preliminary notice requirement for the First Circuit, and out of an abundance of caution, for the entire state.
Louisiana Supreme Court’s Reticence
The decision that Louisiana required multiple preliminary notices, one for each month in which the materials were delivered, was appealed to the Louisiana Supreme Court. By a vote of 6-1, however, the Supreme Court denied the writ to appeal the First Circuit Court of Appeals’ decision. One can assume, therefore, that the Louisiana Supreme Court either agreed with the First Circuit, or at the very least, determined that the issue was not worth debating to fully settle the issue state-wide.
Because of this reluctance or agreement, the Supreme Court left the decision of the lower court intact, and thus, left some confusion as to the actual requirement. It remains clear, however, that it is best-practice at the very least to supply preliminary notice for each month in which materials were delivered to a Louisiana construction project no matter where in Louisiana the project is located. And, it is absolutely required to send multiple such notices if the project is in the jurisdiction of the First Circuit Court of Appeals.
This issue may be revisited if a different Louisiana Circuit Court of Appeals reaches a different conclusion, but until that point, Louisiana (semi)-officially joins the ranks of the multi-preliminary notice states.
You can learn more about protecting yourself by sending preliminary notices by downloading the guide below.