ST. BERNARD PORT, HARBOR AND TERMINAL DISTRICT
GUY HOPKINS CONSTRUCTION CO., INC. UNITED STATES FIRE INSURANCE COMPANY AND ABC INSURANCE COMPANY
FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 95-852,
DIVISION "E" Honorable Jacques A. Sanborn, Judge
J. Bordelon, Jr. BORDELON, THERIOT & ABRAMS -AND- Regina
C. Wedig LAW OFFICES OF REGINA SCOTTO WEDIG, LLC -AND- James
M. Garner Ashley G. Coker SHER GARNER CAHILL RICHTER KLEIN
& HILBERT, L.L.C. COUNSEL FOR PLAINTIFF/APPELLANT
E. Frazier KRACHT & FRAZIER, L.L.P. -AND- Paul A. Tabary,
III TABARY & BORNE, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Marion F. Edwards, Pro Tempore)
A. Lombard Judge
Appellant, St. Bernard Port, Harbor and Terminal District
("the Port"), seeks review of the May 28, 2016
judgment of the district court granting a writ of mandamus,
under La. Rev. Stat. 38:2191(D), to the Appellee, Guy Hopkins
Construction Co., Inc. ("Hopkins"), compelling the
Port to pay a September 6, 2011 judgment in the amount $101,
306.47, with legal interest. Additionally, on appeal, the
Port filed a Peremptory Exception of No Cause of Action,
which we deny. Furthermore, pursuant to our de novo
review, we affirm the judgment of the district court.
and Procedural History
matter stems from a public works contract dispute between the
Port and Hopkins. In August 2000, Hopkins was awarded a
public works contract by the Port to complete Phase I of a
major public works renovation. In 2002, the Port sued Hopkins
raising breach of contract and damages claims as a result of
Hopkins faulty performance and abandonment, as well as for
incomplete work that it was forced to retain other
contractors to complete. Hopkins filed a reconventional
demand for monies it asserted it was owed pursuant to the
district court ultimately offset the unpaid balance it
determined was due to Hopkins under the contract- $459,
081.86- against the damages due to the Port, thereby
resulting in a judgment of $101, 306.47 being awarded to
Hopkins. We affirmed the judgment on appeal. St. Bernard
Port, 12-0167, p. 27, 108 So.3d at 889. The judgment
became final after the Louisiana Supreme Court denied writs
on May 17, 2013. The Port did not pay the judgment, nor did
it appropriate funds to pay the judgment pursuant to La. Rev.
in November 2013, Hopkins filed a Petition for Alternative
Writ of Mandamus wherein it asserted that after entering into
a construction contract with the Port, several disputes arose
during the course of the construction project with the Port
and this litigation ensued. Hopkins stated that it was
awarded a final contract balance of $101, 306.47, with legal
interest thereon from the date of judicial demand until paid.
It further averred that funds for constructing the
improvements were appropriated by the Port for the purpose of
entering into the public works contract prior to the contract
being awarded. Thus, there was no requirement, it pleaded,
that another appropriation be made to pay the judgment at
issue for the remaining contract balance. Hopkins further
pleaded that under the Public Works Act, specifically La.
Rev. Stat. 38:2131, public bodies are required to timely pay
contractors. Moreover, it stated that Hopkins attempted to
resolve its claim through ordinary means by filing suit and
proceeding to trial, but to no avail as the Port has refused
to pay the remaining contract balance.
district court denied the writ on February 12, 2014. Later,
Hopkins filed a motion for new trial, which was granted.
After allowing the parties to submit their arguments on
briefs, the district court issued the writ of
mandamus. On May 28, 2016, the district court issued
a judgment granting mandamus and thereby directed the
Executive Director of the St. Bernard Port, Harbor and
Terminal District, Robert J. Scafidel, to pay $101, 306.47,
with legal interest and fees, unto Hopkins.
Port timely filed the instant appeal raising the following
assignments of error:
1. The district court erred in granting a writ of mandamus to
enforce a money judgment granted in 2011 against the Port;
2. The district court should not have applied the amendment
to La. Rev. Stat. 38:2191(D) retroactively to a contract
signed in 2000 and/or suit filed in 2002 in granting the writ
3. The district court erred in determining that La. Rev.
Stat. 38:2191 is applicable to a pre-existing judgment;
4. The district court erred in finding that Hopkins satisfied
the requirements for obtaining a writ of mandamus to enforce
a money judgment against the Port;
5. The district court erred in determining that an
appropriation had been made under La. Rev. Stat. 38:2191(D);
6. The district court erred in including interest from the
date of judicial demand in the mandamus writ.
prior to the submission of this matter for appeal, the Port
filed a peremptory exception of no cause of action. In its
exception, the Port raises the very same questions of law as
raised on the merits of its appeal, principally whether
Hopkins established that it is entitled to a writ of mandamus
under La. Rev. Stat. 38:2191(D), which it argues cannot be
retroactively applied. In light of this commonality, it is
unnecessary for this Court to separately discuss the
exception. See Adams v. S. Lafourche Levee Dist.,
15-0507, 15-0508, pp. 7-8 (La.App. 1 Cir. 6/27/16), 199 So.3d
20, 24. Moreover, for the reasons discussed below, we find no
merit in the Port's exception of no cause of action,
which we hereby deny.
prior appeals involving the interpretation of La. Rev. Stat.
38:2191 relative to a money judgment, other circuits have
noted that a de novo standard of review is
applicable because "the proper interpretation of a
statute is necessarily a question on law." See
Quality Design and Const., Inc., v. City of Gonzales,
13-0752, pp. 3-4 (La.App. 1 Cir. 3/11/14), 146 So.3d 567,
569-570. Additionally, a district court's findings of
fact in a mandamus proceeding are subject to a manifest error
standard of review. Hess v. M & C, Inc., 14-962,
p. 3 (La.App. 3 Cir. 2/11/15), 157 So.3d 1200, 1203.
of Mandamus is an Attempt to Collect a Money
first assignment of error, the Port asserts that Hopkins'
writ of mandamus is simply an attempt to collect its money
judgment, not an attempt to collect a final payment due under
contract. This attempt at collection of a judgment with the
seizure of public funds, it avers, is prohibited by Louisiana
Constitution Art. XII, Sect. 10 (C) and La. Rev. Stat.
upon the foregoing, the Port maintains that Louisiana courts
have consistently held that contractors are prohibited from
obtaining a writ of mandamus to collect a money judgment.
Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d
1019, 1024; Jones v. Traylor, 94-2250 (La.App. 4
Cir. 8/23/95), 600 So.2d 933; Landry v. City of
Erath, 628 So.2d 1178 (La.App. 3 Cir. 1993); Dept.
of Trans & Dev. v. Sugarland Ventures, Inc., 476
So.2d 970 (La.App. 1 Cir. 1985); Fontenot v. State,
Through Dept. of Highways, 358 So.2d 981 (La.App. 1 Cir.
1978), reversed on other grounds, 355 So.2d 1324
(La. 1978). The remedy Hopkins has available, according to
the Port, is to obtain a specific appropriation to pay the
judgment. Mandamus is not a remedy because the Port did not
appropriate funds to pay this judgment. Newman Marchive
P'ship v. City of Shreveport, 07-1890 (La.
04/08/08), 979 So.2d 1262.
Rev. Stat. 38: 2191, entitled Payments under
A. All public entities shall promptly pay all obligations
arising under public contracts when the obligations become
due and payable under the contract. All progressive stage
payments and final payments shall be paid when they
respectively become due and payable under the contract.
B. Any public entity failing to make any progressive stage
payment within forty-five days following receipt of a
certified request for payment by the public entity without
reasonable cause shall be liable for reasonable attorney
fees. Any public entity failing to make any final payments
after formal final acceptance and within forty-five days
following receipt of a clear lien certificate by the public
entity shall be liable for reasonable attorney fees.
C. The provisions of this Section shall not be subject to
waiver by contract.
D. Any public entity failing to make any progressive stage
payments arbitrarily or without reasonable cause, or any
final payment when due as provided in this Section, shall be
subject to mandamus to compel the payment of the sums due
under the contract up to the amount of the appropriation made
for the award and execution of the contract, including any
authorized change orders.
pleaded, in its Petition for Alternative Writ of Mandamus,
that it: sought final payment on its contract with the Port;
unsuccessfully pursued relief through ordinary proceedings,
and obtained a judgment. Thus, it sought mandamus relief
pursuant to La. Rev. Stat. 38:2191(D), which has its own
appropriation requirement, similar to La. Rev. Stat. 13:5109
(B)(2). While both statutes are arguably applicable, in this
instance the more specific law, La. Rev. Stat. 38:2191,
controls as it specifically applies to public works
contracts. Smason v. Celtic Life Ins. Co., 615 So.2d
1079, 1087 (La.App. 4th Cir. 1993), writ
denied, 618 So.2d 416 (La. 1993).
that the existence of a money judgment in this matter does
not change the fact that a final payment was owed to Hopkins
under a public works contract for which the Port appropriated
monies. If all of the statutory requirements for La. Rev.
Stat. 38: 2191 are met, which we discuss below, Hopkins'
recovery is not precluded. Thus, we find that this assignment
of error is without merit.
Application of La. Rev. Stat. 38:2191(D)
second assignment of error, the Port argues that La. Rev.
Stat. 38:2191(D) is inapplicable to the instant matter
because it was a substantive amendment made to the statute in
August 2011. The Port avers that the public works contract at
issue was executed in 2000 and the underlying lawsuit was
filed by the Port in 2002. The 2011 amendment, it maintains,
cannot therefore be retroactively applied as the statute
itself does not provide for retroactive application. The Port
further asserts that Section B of La. Rev. Stat. 38:2191 was
also determined to be a substantive statutory ...