202 So. 3d 535
La. Ct. App.2016Background
- Drennan contracted with St. Charles Parish to replace culverts; payments required engineer approval before parish payment.
- Engineer Saleh approved the first eight pay applications; the parish paid them but later claimed it had overpaid $100,000 for “Relocation of Infrastructure.”
- Saleh initially approved the ninth application for $138,747.50; a version shows the $100,000 reduced, and the parish withheld $100,000 from payment.
- Drennan filed (and ultimately pursued) a writ of mandamus under La. R.S. 38:2191(D) to compel payment of the withheld $100,000; the trial court granted mandamus and awarded $2,000 attorney’s fees.
- On appeal, the parish argued (1) mandamus was inappropriate because the parish had discretion to withhold payment (invoking general mandamus rules and contract §14.7), (2) the engineer’s deposition supported rescission, and (3) the judgment improperly named the parish president. The trial court’s factual findings (including rejection of Saleh’s testimony) were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus under La. R.S. 38:2191(D) is available here | Drennan: statute mandates payment when due; engineer approved ninth application and no written objection was timely, so payment was due and mandamus proper | Parish: general mandamus rules and contract §14.7 give discretion/reasonable cause to withhold payment | Held: Mandamus available; statute’s “shall” is mandatory and applies when contract leaves no discretion; no timely written objection existed, so payment was due |
| Whether contract §14.7 authorized engineer to rescind approval such that parish had reasonable cause to withhold payment | Drennan: §14.7 applies to defects in the same application or timely set-off with immediate written notice; no defects or written notice here | Parish: §14.7 permits nullifying prior recommendations and set-off for earlier erroneous payments, creating reasonable cause | Held: §14.7 inapplicable—no defect in the ninth application and no written notice of set-off, so parish could not rely on §14.7 to withhold payment |
| Reliability of engineer Saleh’s deposition and weight of his testimony | Drennan: Saleh’s testimony was inconsistent and contradicted by contemporaneous actions; court should reject his legal interpretation | Parish: Saleh’s testimony supports rescission and parish’s withholding | Held: Trial court reasonably found Saleh’s testimony unreliable and correctly rejected his interpretation |
| Whether a writ may be directed against the parish president as named defendant | Drennan: naming the president in official capacity is proper for mandamus | Parish: statute authorizes writ against public entity, not officer personally | Held: Permissible—statutory definitions and mandamus practice allow ordering a public officer in official capacity; judgment naming president was proper |
Key Cases Cited
- Newman Marchive Partnership, Inc. v. City of Shreveport, 979 So.2d 1262 (La. 2008) (de novo review for statutory and contractual interpretation)
- Hoag v. State, 889 So.2d 1019 (La. 2004) (mandamus requires absence of discretionary element)
- LeBreton v. Rabito, 714 So.2d 1226 (La. 1998) (statutes on same subject must be harmonized; specific prevails over general)
- Lachney v. Fertitta Excavating Contr. Inc., 984 So.2d 887 (La. App. 5 Cir. 2008) (manifest error standard governs review of trial court factual findings)
- Virgil v. American Guaranteed & Liability Ins. Co., 507 So.2d 825 (La. 1987) (deposition testimony subject to manifest error standard)
- Bellard v. American Central Insurance Co., 980 So.2d 654 (La. 2008) (appellate review is of judgment, not reasons for judgment)