Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Woodrow Wilson Construction LLC v. Orleans Parish School Board

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018

WOODROW WILSON CONSTRUCTION LLC F/K/A WOODROW WILSON CONSTRUCTION CO., INC
v.
ORLEANS PARISH SCHOOL BOARD

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-03885, DIVISION "A" Honorable Tiffany G. Chase, Judge

          Blane A. Wilson LAW OFFICES OF R. GRAY SEXTON COUNSEL FOR PLAINTIFF/APPELLANT

          Daniel Lund, III Stuart G. Richeson Alexander R. Saunders Carys A. Arvidson PHELPS DUNBAR, LLP COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Regina Bartholomew Woods)

          Terri F. Love Judge

         Woodrow Wilson Construction, LLC, f/k/a Woodrow Wilson Construction Co., Inc.'s ("WWC") seeks appellate review of the trial court's partial final judgment that denied its petition for a writ of mandamus to compel final retainage payment from the Orleans Parish School Board ("OPSB") in connection with the construction of a new school. In that La. R.S. 38:2191 applies and the statutory requirements have been met, we find the trial court erred in denying the petition for a writ of mandamus. Accordingly, the trial court's August 2017 judgment is reversed and remanded to the trial court to issue the writ of mandamus and to determine the amount of attorney's fees and interest due to WWC for bringing the mandamus action.

         FACTUAL AND PROCEDURAL BACKGROUND

         This appeal arises from a public works contract dispute. OPSB awarded WWC the contract for the construction of a new pre-kindergarten through eighth grade school at North Kenilworth Park. The contract sum was $22, 476, 000. According to the contract, the project was to be substantially completed within 548 days and imposed liquidated damages of $5000 per day for every day the project was late. Construction began in February 2013, and a certificate of substantial completion was issued on February 3, 2016. Upon receipt of the certificate of substantial completion, WWC submitted an application for final retainage payment along with the lien waivers and a copy of the clear lien certificate, which OPSB received on May 23, 2016.

         To date, OPSB has not issued to WWC the final retainage payment. Consequently, WWC filed a petition to enforce the public works contract and petition for a writ of mandamus. OPSB filed its answer, affirmative defenses, and reconventional demand, claiming that it is entitled to withhold the amounts due for retainage because it is entitled to collect liquidated damages for the delays[1] in completion of the project, which it alleges exceeds the amount due to WWC under the contract and which it believes WWC is responsible for. WWC has also filed suit against OPSB in a separate ordinary proceeding relating to the same delays, alleging it suffered overhead expenses and general condition damages. Neither party has established liability for the delays, nor has a judgment been rendered on the issue.

         After a hearing on the mandamus action, the trial court denied WWC's petition for a writ of mandamus. WWC filed a notice to seek supervisory writs of the trial court's oral ruling, which the trial court granted. Thereafter, WWC filed an unopposed motion to declare the ruling on mandamus a partial final judgment because it dismissed less than all of the claims raised in the suit, which the trial court granted. In writ no. 2017-C-0738, this Court granted supervisory review for the sole purpose of remanding the matter to the trial court to consider the notice of intent as a motion for appeal. WWC timely filed this devolutive appeal and OPSB filed an exception of no cause of action with this Court.

         EXCEPTION

         Consideration of a peremptory exception filed for the first time in the appellate court is discretionary. La. C.C.P. art. 2163. OPSB claims that a writ of mandamus must be directed to a public officer pursuant to La. C.C.P. arts. 3861 and 3863. Because WWC's petition for a writ of mandamus only names OPSB as a defendant and does not name a public official as a defendant, OPSB argues that the petition fails to state a cause of action for mandamus and the exception should be granted.

         La. C.C.P. art. 3861 provides, "[m]andamus is a writ directing a public officer, a corporation or an officer thereof, or a limited liability company or a member or manager thereof, to perform any of the duties set forth in Articles 3863 and 3864. "A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining relief may cause injustice. . . ." La. C.C.P. art. 3862. Further, La. C.C.P. art. 3863 states that "[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor." Id. (Emphasis added).

On the other hand, La. R.S. 38:2191(D), the statute upon which the mandamus action is brought in this case, expressly states:
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.