245 So. 3d 1
La. Ct. App.2018Background
- OPSB contracted with Woodrow Wilson Construction (WWC) to build a K–8 school for $22,476,000; substantial completion was certified Feb. 3, 2016.
- Contract §9.3.1.3 listed six conditions for final retainage payment (including certificate of substantial completion, architect/owner acceptance, application for payment, lien waivers, expiration of 45‑day lien period, and a clear lien certificate). WWC satisfied those conditions by May 23, 2016.
- WWC sought final retainage payment; OPSB withheld payment asserting it could recoup liquidated damages for project delay and therefore could withhold final payment under contract §9.11.
- WWC filed a petition for a writ of mandamus under La. R.S. 38:2191; trial court denied the petition and WWC appealed.
- The appellate court reviewed whether La. R.S. 38:2191 applied and whether OPSB could withhold payment pending adjudication of its delay claim; it considered whether statutory mandamus relief supersedes contract provisions allowing withholding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La. R.S. 38:2191 permits mandamus to compel final retainage payment | WWC: statute creates ministerial duty to pay when contract conditions are met; conditions were met May 23, 2016 | OPSB: may withhold final payment under contract §9.11 to recoup liquidated damages for delay | Held: La. R.S. 38:2191 applies; WWC met statutory/contract conditions; OPSB cannot withhold payment based on an unresolved separate damage claim |
| Whether the mandamus petition failed for not naming a public officer | WWC: statute 38:2191 authorizes mandamus against a public entity | OPSB: mandamus must be directed to a public officer under La. C.C.P. arts. 3861/3863 | Held: 38:2191(D) specifically authorizes mandamus against public entities and supersedes the more general CCP provisions; exception denied |
| Whether a public entity has discretion to withhold payment when it alleges contractor liability for delay | WWC: allowing withholding would defeat prompt‑payment purpose and the statute’s mandamus remedy | OPSB: reasonable cause exists to withhold payment as security for its delay claim | Held: No discretion once statutory requirements met; separate claims must be resolved in ordinary proceedings and cannot defeat mandamus relief |
| Whether attorney’s fees are due to the contractor | WWC: statute mandates attorney’s fees if final payment not made within 45 days after formal acceptance and receipt of clear lien certificate | OPSB: (implicit) withholding justified so fees not owed | Held: Attorney’s fees are required because payment was not made within 45 days after statutory/contractual conditions were satisfied |
Key Cases Cited
- State v. Campbell, 877 So.2d 112 (La. 2004) (a statute specifically addressing a matter controls over a more general statute)
- St. Bernard Port, Harbor and Terminal Dist. v. Guy Hopkins Constr. Co., Inc., 220 So.3d 6 (La. App. 4 Cir.) (La. R.S. 38:2191 interpreted to compel payment when statutory requirements met)
- Wallace C. Drennan, Inc. v. St. Charles Parish, 202 So.3d 535 (La. App. 5 Cir.) (statute’s mandatory language removes public entity discretion to withhold payment)
- Quality Design and Construction, Inc. v. City of Gonzales, 146 So.3d 567 (La. App. 1 Cir.) (rules of statutory construction; legislative intent governs clear statutes)
- Aberta, Inc. v. Atkins, 89 So.3d 1161 (La. 2012) (definition and application of ministerial duty)
- Hamilton v. Royal International Petroleum Corp., 934 So.2d 25 (La. 2006) (statutory use of "shall" creates mandatory duties and prescribed consequences)