117 So. 3d 607
La. Ct. App.2013Background
- Foster Construction sued the Town of Richwood for $49,174.28 retainage under a $495,751 public contract after obtaining a certificate of substantial completion and a lien-free certificate.
- Foster filed for mandamus relief under La. R.S. 38:2191(D) after a 2011 amendment added mandamus as a remedy for withheld progressive or final payments.
- Mayor Hunter testified Richwood initially used borrowed funds held by a Bank of New York trustee to pay construction disbursements; those funds were exhausted and only two partial payments thereafter came from the general fund.
- Foster alleged aldermen accepted its bid despite public disclosure that the town lacked sufficient funds; Foster argued the 2011 amendment should apply to its claim.
- The trial court denied mandamus, holding the 2011 amendment was substantive and not retroactive and, alternatively, that no ordinance appropriation for the contract appeared in the record.
- The appellate court affirmed, concluding mandamus under § 2191(D) requires an appropriation for award and execution of the contract and the record showed none.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2011 amendment to La. R.S. 38:2191 adding mandamus relief applies to Foster's claim | Amendment is procedural/interpretive and should apply retroactively to allow mandamus | Amendment is substantive and not effective for contracts predating its effective date | Court pretermitted full retroactivity analysis because, even if retroactive, Foster still lacked relief; affirmed denial |
| Whether mandamus under § 2191(D) is available absent an appropriation by ordinance "for the award and execution of the contract" | Acceptance of bid and signed contract suffice or Richwood failed to prove absence of appropriation | Ordinance is required to appropriate funds; no ordinance or appropriation shown in record | Mandamus unavailable; plaintiff failed to prove appropriation; appropriation is legislative and discretionary and cannot be compelled |
Key Cases Cited
- Newman Marchive Partnership, Inc. v. City of Shreveport, 979 So.2d 1262 (La. 2008) (mandamus may not compel discretionary legislative appropriation)
- Hoag v. State, 889 So.2d 1019 (La. 2004) (mandamus cannot force discretionary governmental acts)
- Lambert v. LaBruyere, 154 So.2d 466 (La. App. 4th Cir. 1963) (mandamus appropriate where legislative body authorized payment and officer failed to perform ministerial act)
- Heath v. City of Alexandria, 52 So.3d 86 (La. App. 3d Cir. 2010) (discusses limitations on mandamus to compel appropriations)
- Burks v. Christus Health Monroe, 899 So.2d 775 (La. App. 2d Cir. 2005) (retroactivity analysis for statutory amendments)