WOODROW WILSON CONSTRUCTION LLC F/K/A WOODROW WILSON CONSTRUCTION CO., INC
ORLEANS PARISH SCHOOL BOARD
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-03885,
DIVISION "A" Honorable Tiffany G. Chase, Judge
A. Wilson LAW OFFICES OF R. GRAY SEXTON COUNSEL FOR
Lund, III Stuart G. Richeson Alexander R. Saunders Carys A.
Arvidson PHELPS DUNBAR, LLP COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Regina Bartholomew Woods)
F. Love Judge
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.
AND PROCEDURAL BACKGROUND
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.
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 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.
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.
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
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
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 ...