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St. Bernard Port, Harbor and Terminal District v. Guy Hopkins Construction Co., Inc.

Court of Appeals of Louisiana, Fourth Circuit

April 5, 2017

ST. BERNARD PORT, HARBOR AND TERMINAL DISTRICT
v.
GUY HOPKINS CONSTRUCTION CO., INC. UNITED STATES FIRE INSURANCE COMPANY AND ABC INSURANCE COMPANY

         APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 95-852, DIVISION "E" Honorable Jacques A. Sanborn, Judge

          Alvin 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

          Scott E. Frazier KRACHT & FRAZIER, L.L.P. -AND- Paul A. Tabary, III TABARY & BORNE, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)

          Edwin A. Lombard Judge

         The 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.

         Facts and Procedural History

         This 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.[1] 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 contract.

         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. Stat. 13:5109(B)(2).

         Thereafter, 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.

         The 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.[2] 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.

         The 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 of mandamus;
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); and
6. The district court erred in including interest from the date of judicial demand in the mandamus writ.

         Furthermore, 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.

         Standard of Review

         In 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.

         Writ of Mandamus is an Attempt to Collect a Money Judgment

         In its 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. 13:5109(B)(2).[3]

         Based 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.

         La. Rev. Stat. 38: 2191, entitled Payments under contract, provides:

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.

         Hopkins 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).

         We find 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.

         Retroactive Application of La. Rev. Stat. 38:2191(D)

         In its 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 ...


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