arguing for the apple evolve when enterprises inc and people's national bank is john how each side will have fifteen minutes for their argument you have powell also have five minutes for every bob you'll see the digital timekeeping device on my screen one time has is the defendant counter plaintiff in this case but more specifically it's the general contractor this is a construction case the point that baldwin enterprises is the owner of the boat still in mt vernon  the other party is people's national bank who mr hundley is here to represent i imagine he's also here arguing for baldwin in that baldwin the owner in the bank's interests are aligned with regard to the issue we're here to argue  today as i said this was a contract claim for a hotel renovation my client was the general contractor hired to do that renovation the deal ended up falling apart there are cross claims for breach of contract pending in the trial court but claim in addition to the breach of contract claim my client has a mechanic's lien claim against the property owner and the reason the banks involved is because the bank because they have a mortgage and funded the renovations also has a security interest in the property and because they have a security interest they are necessary party in a mechanic's lien claim otherwise they wouldn't be involved in plea a contractual dispute the parties filed cross motions for summary judgment with regard to the mechanic's lien claim my client filed a motion for judgment partial summary judgment saying that asking the court to declare that the mechanic's lien is valid and enforceable and leaving open the question of the value of it and for the court to judgment on the issue of waiver on both arguments made with regard to waiver and denied my client's motion for summary we're here to ask that the court reversed all of those rulings reversed the ruling granting summary judgment as to the issue of waiver ruling denying motion for summary judgment on the issue of liability on the mechanics one claim because these are both summary judgment issues the standard of review is done novo so everything is being looked at by this court with fresh we believe the record is complete for to enable the court to review these issues and is overwhelmingly on the side of our argument a brief history of  history between the parties they entered into a contract to renovate this hotel in october two thousand and fifteen it was a six million dollars contract  my client was well into renovating the hotel when about a year later they issued a drop request for d nine hundred and thirty thousand dollars there had previously been seven drop requests and all of those were paid  this is the way construction financing works general contractor submit requests for periodic payments to fund the construction those periodic payment requests go through an escrow agent a title company in this case benchmark what happens as benchmark the title company reviews the request compares the request against the budgets in the case investigates at the site at the construction site what was  done and then recommends to the owner whether or not to pay that dispersant in this case seven dollars times that it happens and those dispersants were made each time a disbursement is made the title company asks for a mechanic's lien waiver in the exact amounts sixteen my client's mood disturbance request four hundred and ninety three zero dollars the title company did what they had done before and they recommended to the owner that that disbursement be paid they testified in this case that the work that was requested had been performed and was performed pursuant to the contract and that they recommended that it be paid as the prior seven had been the owner at that point arbitrarily and unilaterally declined to pay and said that he would bring any more money on the project until the project was completed this is in violation of the terms of the contract in the terms of the mechanically mechanic's lien act he had no basis for doing that even tried to take the fact that my client was owed nine hundred and thirty thousand dollars and use it to extort them to get concessions in the contract that didn't exist you wanted new terms of the contract he admitted this in his deposition testimony that was his intention  exactly what they're supposed to do and allowed to do at the same time they told the owner were ready willing and able to continue the work but you need to pay us because it's economically impossible to continue the project when progress payments stopped my client as the general has to pay some contractors and materials writers and you can't do that if you're not getting progress pay the owner refused to pay any more money period my client reported mechanic's lien as they're entitled to do they have to do that timely because mechanically interest creature statue in retaliation for recording the mechanics lame the owner unilaterally terminated the contract  then he refused to negotiate any more and he went off and hire his cousin to complete the project you never paid my client nine hundred and thirty thousand dollars there's no genuine dispute that my client is owed nine one hundred and thirty thousand dollars and the y have a legitimate mechanic's lien there's no dispute here that my client properly recorded and perfected that lien benchmarked title the escrow agent that isn't that is responsible for dispersing money and getting mechanic's l waivers and basically facilitating everything regarding mechanics land does not dispute that my client so got money and neither does the owner the bank has submitted an affidavit or any other evidence to dispute that  and that brings us to the mechanic's lien issues so the bank's argument is that my client waived his right to a mechanic selene even though it properly recorded and perfected that lien it's not about the amount owed and it's not about whether or not the recorder perfected it their argument is that they waived it and waiver is an affirmative defense the burden is on the person making an affirmative defense to prove their right to an affirmative defense and on a summary judgment that's a much greater burden if they're there they have to bring forth evidence to support the affirmative defense of the waiver they've made to waiver arguments here the st is that the escrow agreements for the benchmark title company that was facilitating the disbursement the loans is that that contract itself contains a mechanic's lien waiver that is a blanket waiver infant item into the future there are three reasons that is not a valid argument one  that is specifically barred by the mechanic's lien act section sixty dash one of the of the mechanic's lien act as amended in two thousand and six specifically says you can't have a blanket mechanic's lien waiver in a contract at the beginning of the construction before the contractor's been paid any money it says it's against public policy because naturally that would undermine the purpose of the mechanic's lien act completely if you could just say you have to sign this document  briefed and and if you look at the thing they're calling a waiver it overtly isn't a waiver it does not say that this constitutes a mechanic's lien waive your mechanic's lien act is intended to protect contractors that's why exists it is an extra contractual remedy that every state in this country has instituted because contractors are especially vulnerable to wealthy property owners and banks and they need more protection than just regular contract law  has existed for two hundred years it's overall purpose is to require a person with an interest in real property to pay for improvements or benefits which they have been deuced or encouraged by their own conduct the statute itself says it's supposed to be liberally construed to effectuate it's remedial purpose for contractors that's who is supposed to produce so the blanket waiver in the escrow agreement a doesn't exist and b if it did it directly violates the statute in the case law supports that the nd waiver argument which is inconsistent with the st is that my client executed five lien waivers that they claim are each full and final waivers of lead first of all the case is very clear that lien waivers should be interpreted to effectuate the purpose of the act which means remedial for the benefit of the contractor and that any ambiguity in a lien waiver should be interpreted in favor of the contractor and against an assumption that he has voluntarily chosen to waive such a valuable remedy as a mechanic's lien their argument is that in five of the seven lien waivers that were execute each of which was executed pursuant to a specific disbursement so for example my client would request a disbursement of two hundred thousand dollars the title company would recommend the owner pay if the owner would approve the payment and then  and all that mechanically and waiver the exact number our moppet he was receiving would be reflected on that benchmark title who is the agent of the bank involvement and the only person that testified about this issue admitted that their understanding the whole time was that each of those lien waivers was only with regard to the progress payment that was made my client testified that they had the exact same intent and understanding there's been no testimony to the contrary that's a binding that would mean that the written mechanic's lien waiver was an oldie that was completely pointless because they're saying they already had a waiver so why is the escrow company continuing to ask for in waivers if they already have a full and final waiver and that same argument you made for each subsequent lien way why would you get the nd lien waiver if the st one was a full and final waiver for all work to be done in the future and all amounts unpaid the same question for the rd the th the th and the th doesn't make any rational only thing that makes sense is as it is in the testimony that all parties believed and understood that each lien waiver was only for the amount indicated on the waiver and limited to that amount and that that the sestak dated a new clean  progress payment that was made the banker's instances offered no evidence of reliance on the lien waivers and if you look at the briefing we brief it extensively that you have to show reliance they have the burden of evidence here it's their affirmative defense they produced no evidence their agent has admitted the understood his understanding and my client's understanding is different than the argument made by the bank and baldwin here and if you're wondering why the banks are one here arguing it's because the mechanics claim takes priority over the banks mortgage that's what they're here to protect their mortgage against the contractor getting paid for nine hundred and thirty thousand dollars of work that he has done and so they have not established their right to the waiver at the very least your honour's there is a question of fact about whether or not my client has waived and or all these different arguments is right to mechanics leave and when you consider that it's mostly liberally construed when you consider they produce no evidence and the entire evidentiary record supports our argument and that there wasn't back the meeting of the mind and that there was no blanket waiver at any point we believe that you should reverse summary judgment with regard to the affirmative defense waiver and to the value this is a miscarriage of justice no one denies that these people get nine hundred and thirty thousand dollars worth of work and they were paid this is exactly what the mechanic's lien act is for you shouldn't let technicalities someone of that right that's exactly what the case once says in fact the statute itself says you should not do that it should be liberally construed to effectuate its real purpose so we respectfully request that on this no will review you realise the record supports these arguments and you send it down to the trial court and reverse both these orders and we would suggest that they produce no evidence but at the very least there are questions of fact lots of questions of fact about whether there was reliance progress payment lien waivers that were made as the progress of the project progress i'll be discussing both of these going waivers warning because all of mr crone and comments about the value of his claim and  already conned would agreed to fully constructed complete the improvements to the property quote free and clear for mechanics and metairie woman's plain clothes now that's a waiver doesn't use the word waiver by the end of the case law set forth in our brief it doesn't have to it's an intentional relinquishment of a node right and that's the textbook definition of a waiver if there were any doubt about this our concepts  exchange for the payments under the contract on i have different occasions argonne raises the question as to why we would require the progress payment waivers if there had been a waiver in the escrow agreement it's as if our guns never heard of the principle of belts and suspenders the two tools are not inconsistent they work for a common objective as the use of belts and suspenders in commercial anticipation of the awarding of the construction contract and it requires a bit have been given in consideration for the construction contract neither test is met here on the anticipation  anticipation by definition means that something happens before the other thing here the has proclaimed it was made fourteen months after the construction contract had been awarded in august th changed it was not contract it doesn't dispute that it signed that contract in august the twenty four d d it missed that it took one hundred and seventy five thousand dollars in payments and that contract in august the th date it doesn't dispute that it was that contract was revised due to cost changes during the course of the project and it doesn't dispute that it started work on the project before the revision was ever signed argonne does this create this al issue as to what is the quote applicable contract but that's not that what the statute directs us to our attention to and the statute you look to when was the contract award statutorily irrelevant next article on argues that the in this brief that it was the escrow agreement was not supported by consideration but here there's clearly consideration for the extra agreement new promises made by baldwin as well as the fact that a new party people's national bank comes in with additional promises and agreements in the in the escrow agreement that brings us to the five full and final eating way because that were given during the course of the progress of the project we start our analysis there with the recognition that wavers as a future materials more important where a waiver ambiguously states intent the waiving party may not later contradicted as is attempted here the language of the document control on the issue of intent that's the country service case the relied upon by article and in this portion of it's pretty far right by involved subcontractors and the context here is a general contractor in privity with the  contractor context is meaningfully and substantially distinguishable for reasons that we set or than our brief and accordingly we think are the kinds of cases are in a established here even if it were otherwise permissible article on did not show its trade custom through the testimony several witnesses as the cases require it did not show that link the time that the alleged custom had been extended in the industry it did not show that all that there's a presumption that all contacts in the industry are so may and most importantly it did not show that people's missional bank or sixty nine when you consult these authorities you find that there is clearly insufficient evidence to support the trade custom under the law the testimony to mr rhodes was made in response to a clearly objectionable question with the objection stated on the record preserved for judicial review even if you decide that this portion of the transcript should be considered all mister road stated it was his understanding he did not testify as to trade customer industry usage and he did not testify to any of the facts that are necessary to trade customer industry used moreover contrary to mr proneness argument us not our agent for purposes of the deposition i'd like briefly to address the counter motion found that the lien was waived it was duty bound to bind that are the cons kind of motion could not be enforced the same situation applies here moreover articles motion must be of section sixteen which require hance meant to defeat a mortgage link we've directed the court to numerous cases that support that you are going to relies upon but two cases and we show how they misinterpret them at pages sixty five dollars sixty six bank's effort to backdate the contract to august of two thousand and fourteen is telling with regard to how far they're trying to stretch the facts in this case to pigeon hole into this argument that  when and the bank both alleged and admitted numerous times in the pleadings in this case and in all testimony in this case that the contract was entered into in august two thousand and fifteen not august two thousand and fourteen the reason the bank wants to make that argument and they're jumping through so many hoops to try to do it is that they understand that if the escrow agreement was entered into the day after the construction contract it's part and parcel of the construction contract they can put it this way the escrow agreement the only consideration client gets for signing it is they get paid under the construction contract in fact they can't get paid under the construction contract unless they sign the escrow agreement it's required and all went in their complaint there's a plaintiff here they alleged that the contract from october two thousand and fifteen and the escrow agreement are part and parcel of the same contract they are the same contract and they can't under that admission they're allegation the bank also admitted that in a legit it's only for purpose of summary judgment they've invented this argument that the contract actually from a year of the year before and this is exactly the kind of blanket waiver you have in a construction contract or an escort agreement a day after the construction contract where provisions of the mechanic's lien act and would be the exception that doesn't swallow rule it would swallow the entirety of the act because every esper agreement ever which every contractor has to sign to get paid would always have a blanket waiver in it if you could do that there is no mechanics  o i think that's america's argument the five when waivers somebody judge us exactly the right question why would you have to keep executing a lien waivers if each one of them was a full and final waiver and the answer is they're not  said he does not believe they covered the one hundred and thirty thousand dollars that was on paid there is no contrary testimony in that regard when they say my client put the final waiver language in there that's not true there are small boxes on these le agree on some of them not all of them my client checked the box that had some very fine print that said this is full and final he testified he meant full and final as to the amount he was being paid that day benchmark testified exactly the same there is numerous case law that supports the intent of the parties and what was their actual meeting of the minds especially under the umbrella of the liberal interpretation of the mechanics and that if you look at the court it exactly on point on page eighteen of our brief  number might be wrong but the couric caved and we cited testimony in that case of a contractor where he says what did you did you write final on this thing and he says yeah but i didn't mean file for the whole thing and the court reversed summary judgment in favor of the property d owner and said look where there's evidence that the intent wasn't for to be final there is at least a question of fact about what that intent is and so there's no strict construction of a box that was accidentally  deprive someone of the mechanic's lien rights that's not the way it works and there's no evidence that anyone actually believes that in this case the course of conduct of the parties in trade practice a court each mechanically and labor was for each amount that was paid  there's no question that the one hundred and thirty thousand goes unpaid and that's what somebody's got to keep the benefit of that my client is a small contractor this destroyed their business and their lives somebody's got to keep one one hundred and thirty dollars grand and it sounds like it was the bank and it was to the detriment of my client and that is that violates the spirit of the law and the letter of the law and there's no evidence in this case to support that's what should have happened at the very least this should be reversed in that there is a least a question of fact with regard to whether or not there was an intention to leave my client's right to mechanics when but there really is no evidence to support that i think there's no question it's a fact and you should just reverse it and again i rea reiterate that there's no dispute that my client wasn't paid that money there's no dispute that that work was done under this construction contract for the improvement of the hotel council says we have to prove that that was minimal but we don't it was for construction contract and that's not in dispute the work that was done was to renovate the hotel and improve real estate so we respectfully request the court reversed on the affirmative defenses thank you counsel this matter will be taken under advisement and an order will be issued in due course thank you very much thank you