_JjThis is а suit by a subcontractor against a general contractor alleging,
Following a bench trial, the trial court found in Boes’ favor on the principal amount due, awarded penalties under the prompt payment statute, denied penalties under the misapplication of funds statute, awarded legal interest from the date of judicial demand, and costs and attorneys’ fees to be fixed at a later date. Following a subsequent hearing, the trial court awarded Boes $8,000.00 in attorneys’ fees and | a$5,000.00 in costs. Both Boes and Defendants appealed. For the reasons that follow, we affirm. '
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, Entergy contacted Gee Cee Group, a Louisiana commercial (nonresidential) construction company, regarding a project to repair and renovate Entergy’s Gas Department Warehouse located on Perdido Street in New- Orleans, Louisiana (the “Project”). Entergy requested that Gee Cee Group present a proposal for the Project. To do so, Gee Cee Group contacted various subcontractors, including Boes, to obtain quotes to incorporate into its proposal. Entergy accepted Gee Cee Group’s proposal. Thereafter, Gee Cee Group accepted Boes’ quote to perform certain structural-steel and non work in connection with the Project.
On December 27, 2001, Boes completed its work on the Project and submitted two invoices to Gee Cee Group—No. 026497 in the amount of $29,988.00; and No. 026498 in the amount of $3,332.00 (a total amount of $33,320.00) (the “Invoices”). The Invoices reflected that Boes, for internal record keeping and tracking purposes, assigned the Project the job number 1079. On the bottom of each invoice, in small print, was the following language:
Notwithstanding anything to the contrary provided for herein, payment by the contractor and/or owner to Boes Iron Works, Inc. shall be due on or before the 20th day of the month following submission of invoices by Boes Iron Works, Inc. .Failure to pay said invoice(s) so submitted when due shall entitle Boes Iron Works, Inc. to recover from the contractor and/or owner interest at the rate of one and one-half (1 ½) percent per month on the outstanding unpaid balance from due date until paid, all reasonable attorney’s fees incurred by Boes Iron Works, Inc. in connection with the collection with such past due balance, all in addition to the outstanding unpaid principle [sic] balance. Should job be discontinued, final billing shall not be determined by “Bill to Date” amount.
IsBased on the above language, the Invoices were due on January 20, 2002.
At trial, Craig Boes, Boes’ operations manager, testified that, while the Invoices state that the amounts were due on or before the 20th day following submission of the invoicеs, the contract between the parties for the Project included a “pay-when-paid” term.
It is undisputed that Defendants made no payments to Boes for its work on the Project until 2010. As a result, in September 10, 2009, Mr. Boes’ son, who was a manager of Boes, emailed Mr. Chigbu a copy of the Invoices, indicating a $33,320.00 outstanding balance. Sometime in April 2010, Mr. Boes and Mr. Chigbu met and discussed the Invoices. At this time, Mr. Boes and Mr. Chigbu had been doing business together for years and were personal friends. Mr. Boes testified that had Mr. Chigbu not personally guaranteed payment of the Invoices, Boes would have immediately filed suit in 2010. Mr. Boes also testified that.-he Lwas unaware at the time of his April 2010 meeting with, Mr. Chigbu of- the distinction between Gee Cee Group and Gee Cee LA.
On May 11, 2010, Mr. Chigbu sent a follow-up email to Mr. Boes, stating the following:
As I said while I visited last time, I would be back with you soon and it may take until Monday May 10 to get back with you. Sorry, it has taken a day more. I will send you a $5,000.00 check towards that account and will pay intermittent payments until all amount[s] are paid within the next 36 months or we are able to negotiate a one time or twice páyoff amount. Got to figure out where and how to place this bill. Anyway, thanks.
On June 16, 2010, Gee Cee LA issued a check in the amount of $5,000.00; and, on September 3, 2010, Geé Cee LA issued a second check in the amount of $11,500.00. On both of the checks, .it was noted that
On November 28, 2012, Mr. Boes’ son faxed an invoice to Gee Cee LA showing a balance of $82,739.80. This amount included not only the remaining | .¡balance due of $16,820.00, but also interest calculated at 1⅜% per month (18% per annum) (the rate set forth on the Invoices).
On February 19, 2013, Boes filed this suit against Defendants. In response, Defendants filed various exceptions, including a peremptory exception of prescription. On February 5, 2014, an evidentiary hearing was held on the prescription exception.
On October 12, 2015, a bench trial was held in this matter. At trial, two witnesses testified—Mr. Chigbu and Mr. Boes. Following trial, the trial court ruled in Boes’ favor. In its written reasons for judgment, the trial court recapped its prior findings in denying Defendants’ prescription exception as follows:
This Court previously found that the April 2010 meeting and subsequent May 11, 2010 email from Mr. Chigbu served as a new promise by Gee Cee Company of LA to pay the debt of the closed Gee Cee Group, Inc. This Court previously found that Mr. Chigbu’s meeting in April 2010 with Mr. Boes and Mr. Chig-bu’s follow up email on May 11, 2010 served to interrupt prescription and essentially acknowledged or guaranteed payment of a debt owed. Further, Mr. Chigbu, on behalf of Gee Cee Group of LA, issued two payments totaling $16,500.00 for Boes’ Job No. 1079. In the Court’s April 4, 2015 judgment, this Court found that Mr. Chigbu, on behalf of the new company, Gee Cee Group of LA, had a pecuniary interest (and thus received a benefit) by making a new agreement and promising to pay the debt of his former company. Gee Cee Group, in light of his continued business relationship with Boes Iron Works.®
| BGiven those findings, the trial court summarized the remaining issues before it at trial as follows;
1. Whether Mr. Boes contracted with Gee Cee Group or with Gee Cee LA, and whether Gee Cee LA was merely an alter ego of Gee Cee Group;
2. The terms of the April 2010 agreement between Mr. Chigbu and Mr. Boes regarding the debt, including whether the language in the Invoices entitled Boes to one and one half percent per month on outstanding unpaid balances not paid by the due date was binding on Mr. Chigbu; and
3. Whether Boes is entitled to penalties, attorneys’ fees, and costs.
As to the alter ego issue, the trial court found that Gee Cee LA was an alter ego or a mere continuation of Gee Cee Group and thus responsible for its debts. As to the terms of the new April 2010 agreement, the trial court found that Defendants continued to owe Boes for the remaining unpaid balance of $16,820.00 and that “it is clear that Boes is entitled to collect interest on the remaining unpaid balance.” Finally, as to penalties, attorneys’ fees, and costs, the trial court found that Boes was entitled to penalties under the prompt pay statute, La. R.S. 9:2784, but not under the misapplication of funds statute, La. R.S. 9:4814. The trial court thus rendered judgment in Boes’ favor for the principal sum of $16,820.00, penalties of $4,998.00, and judicial interest as provided for by law.
Following a separate hearing on the issue of attorneys’ fees and costs, the trial court rendered judgment awarding Boes $8,000.00 in attorneys’ fees, $6,161.81 in costs, and legal interest on said amounts as provided by law. From the trial court’s rulings, both Boes
JtDISCUSSION
For ease of discussion, we divide our analysis of the issues presented by the parties into the following eight categories: (i) standard of review; (ii) alter ego or continuation doctrine; (iii) open account versus contract claim; (iv) detrimental reliance claim; (v) prompt pay claim; (vi) misapplication of funds claim; (vii) interest; and (viii) attorneys’ fees. We separately address each category
Three different standards of review are applicable here—abuse of discretion, manifest error, and de novo. An abuse of discretiоn standard applies to the attorneys’ fees award issue. The jurisprudence has recognized that “[t]he trial court |8is vested with great discretion in arriving at an award of attorney fees. The exercise of this discretion will not be reversed on appeal without a showing of clear abuse of discretion.” Troth Corp. v. Deutsch, Kerri-gan & Stiles, L.L.P., 06-0457, p. 3 (La. App. 4 Cir. 1/24/07),
To the extent the issues presented on appeal involve fact questions or mixed questions of law and fact, the manifest error applies. To the extent the issues involve questions of law, the de novo standard applies.
This court reviews a trial court’s factual findings under a manifest error standard. The manifest error standard is one “of great deference to the factual findings of the trier of fact.” 1 Frank L. Maraist & Harry T. Lemmon, La. Civ. L. Treatise, CIVIL PROCEDURE § 14:14 (1999). The phrase “manifestly erroneous,” in its simplest terms, means “clearly wrong.” Id. (citing Arceneaux v. Domingue,365 So.2d 1330 , 1333 (La. 1978)). “Mixed questions of law and fact are also reviewed under the manifest error standard.” Jones v. Capitol Enterprises, Inc., 11-0956, pp.10-11 (La.App. 4 Cir. 5/9/12) ,89 So.3d 474 , 483, unit denied, 12-1634 (La. 10/26/12),99 So.3d 651 (citations omitted).
Pure questions of law are reviewed under a de novo standard “without deference to the legal conclusions of the courts below.” Durio v. Horace Mann Ins. Co., 11-0084, p. 14 (La. 10/25/11),74 So.3d 1159 , 1168; see also Burnette v, Stalder, 00-2167, p. 5 (La. 6/29/01),789 So.2d 573 , 577 (noting that a de novo review standard applies to issues of statutory construction); Henderson v. Bige-low, 07-1441, p. 8 (La.App. 4 Cir. 4/9/08),982 So.2d 941 , 946. As to ^questions of law, “the standard of review of an appellate court is simply whether the court’s interpretive decision is legally correct.” Ohm Lounge, L.L.C. v. Royal St. Charles Hotel, L.L.C., 10-1303, p. 4 (La. App. 4 Cir. 9/21/11),75 So.3d 471 , 474 (citing Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 3 (La.App. 4 Cir. 11/6/02),832 So.2d 403 , 405).
Alter ego or continuation doctrine
Defendants contend that the trial court legally erred in applying the continuation doctrine to find that Gee Cee Company LA was responsible for Gee Cee Group’s debt given that a threshold requirement for applying the doctrine was not met. Defendants cite this court’s holding in Pichón v. Asbestos Defendants, 10-0570, p. 6 (La.App. 4 Cir. 11/17/10),
|inThe trial court, agreeing with Boes,
In further support, the trial court cited the following facts:
Both Gee Cee Group, Inc. and Gee Cee Company of LA, Inc. were in existence from 1997 and 2006, at which time Gee Cee Group, Inc., was abandoned after Hurricane Katrina. At trial, Mr. Chigbu testified that they were two separate companies, but had the same mailing address, same phone and fax numbers and he served as the president of both. Mr. Chigbu testified that Gee Cee Group, Inc., was almost bankrupted because one of his clients, Harrah’s Casino, filed for bankruptcy, causing financial hardship for Gee Cee Group, Inc. As a result, Mr. Chigbu no longer conducted business under that company anymore, but he formed Gee Cee Company of LA instead. Mr. Chigbu testified that Gee Cee Group, Inc., was already the approved vendor with Entergy when the job at issue [the Project] was awаrded so he did not correct them to change it to Gee Cee Company because Gee Cee Group, Inc, was already on their approved list.
We agree with Defendants that the trial court’s reliance on the continuation
Generally, the determination of whether the SBE doctrine applies is a question of fact for the trial court to decide. Grayson v. R.B. Ammon & Associates, Inc., 99-2597, pp.
Simply stated, the SBE doctrine is invoked “to break down corporate walls between affiliated corporations.” Glenn G. Morris and Wendell H.
| ^Considering the Green factors, which we note are substantially similar to those considered in applying the continuation doctrine,
Open account versus contract claim
As part of their exception of prescription, Defendants argued that Boes’ claim is not based upon contract, subject to a ten-year prescriptive period, but based upon an open account, subject to a three-year prescriptivе period.
| uAccording to Defendants, the relationship between Mr. Boes’ and Mr. Chigbu’s respective companies was sometimes contractual—when there was a formal bid process, and a written subcontract—and sometimes based on open account. Defendants’ contends that the relationship, between the parties on the Project was based on an open account. Defendants emphasize that the Invoices were the only available written documentation the parties were able to produce regarding their relationship on the Project.
The issuе of whether the relationship between the parties was based upon contract, as opposed to an opien account, presents a question of fact subject to a manifest error standard of review. Resolving the issue in Boes’ favor, the trial court noted that there was a long-standing working relationship between the heads of both entities—Mr. Chigbu and Mr. Boes. The trial court found Mr. Boes’ testimony regarding the customary procedure the entities employed in entering into contracts for jobs to'be credible and that the parties used that customary procedure on the Project.
Regardless, Defendants contend that Mr. Chigbu neither acknowledged nor promised to pay Gee Cee Group’s debt to Boes. According to Defendants, Mr. Chig-bu’s May 11, 2010 email was, at best, “a new offer to pay and a new agreement;” it was not an acknowledgement. Defendants point out that Mr. Chigbu testified he believed he and Mr. Boes reаched a new agreement at their April 2010 meeting. Under that new agreement, Gee Cee LA would pay the face amount of the Invoices (a total of $33,000.00) within thirty-six months (three years). Defendants contend that Mr. Boes repudiated that understanding and denied that there was a new agreement between them.
The trial court found that the April 2010 meeting between Mr. Boes and Mr. Chigbu, coupled with Mr. Chigbu’s May 11, 2010 email and the checks subsequently issued through Gee Gee LA to Boes, constituted both an acknowledgement of the underlying debt sufficient to interrupt prescription and a new agreement to pay the remaining debt. The trial court noted that both the checks indicated that they were payments for Boes’ Job No. 1079. The trial court thus concluded that “Mr. Chigbu, on behalf of [Gee Cee LA] ... had a pecuniary interest (and thus received a benefit)
Detrimental reliance claim
On appeal, Defendants raise a detrimental reliance claim.
Defendants contend that all three elements necessary to give rise to detrimental reliance are present. According to Defendants, the three elements are satisfied for the following reasons:
• Representation by conduct or word—Defendants contend that Mr. Boes’ actions led Mr. Chigbu to believe they reached a new agreement at their April 2010 meeting. Although this new agreement was never memorialized in writing, Mr. Chigbu sent an email which served аs a follow up. In addition, when Mr. Chigbu received new invoices after sending the first checks and saw that the balance due had been reduced in accordance with the new agreement he believed was made, he was entitled to believe that the amount due was what was reflected on the new invoices.
• Justifiable■ reliance—Assuming there was no new agreement, Boes, by depositing the • checks, reducing the balance due, and remaining silent when Mr. Chigbu mentioned a thirty-sbc months’ term in his email, conducted itself in such a way as to lead Mr. Chigbu reasonably to believe that there was such an agreement.
• A change in position to one’s detriment because of the reliance—Mr. Chigbu would never have made any payments to Boes if he had known that Boes would claim thousands of dollars of interest. The only reason why Gee Gee LA made any payment to Boes was because Mr. Chigbu believed there was an agreement to pay only the face amount of the Invoices. Defendants thus contend that the payments they made were of a thing not due by Gee Cee LA, an entity not liable in any way.
Boes counters that Defendants’ detrimental reliance claim is based on Defendants’ mistaken belief that during the parties’ April 2010 meeting a nеw agreement was reached whereby Boes, without any financial consideration, agreed to waive interest and attorneys’ fees under the Invoices and to provide Defendants 118an additional thirty-six months (three years) to pay the Invoices. Boes notes that Mr. Boes testified at trial that he did not make any such new agreement and that Mr. Chigbu testified to the contrary. Boes contends that the trial court weighed the testimony and obviously determined that no such agreement with those terms had been reached.
The jurisprudence has recognized that “detrimental reliance usually comes into play when no written contract exists or the contract is found to be unenforceable.” Jackson v. Lare, 34,124, p. 7, n. 1 (La.App. 2 Cir. 11/1/00),
As the trial court noted, Mr. Boes testified at trial that “he never agreed to a thirty-six month term to pay the remaining debt at the April 2010 meeting with Mr. Chigbu;” the trial court implicitly accepted Boes’ position on that point. The trial court, however, rejected Boes’ position that the 1⅜ % per month interest reflected on the Invoices applied; the trial court reasoned as follows:
Conflicting testimony was offered regarding the terms of the plan to repay the debt, and Boes failed to establish whether the parties agreed on any particular interest rate to be charged for the remaining debt. While Boes argued that it was owed 1.5 percent interest per month on the remaining balance due, Mr. Chigbu argued that he never agreed to that condition, nor signed anything agreeing to that amount. As late as 2011, the invoices sent from Boes to Gee Cee Group, Inc. contained no charges for interest. However, it is clear that Boes is entitled to collect interest on the remaining unpaid balance. As the 119amount of interest was not contractually agreed upon, Boes is entitled to judicial interest from the date of judicial demand.23
Given there is an enforceable contract, we find Defendants’ detrimental reliance claim lacks merit.
Prompt pay claim
Defendants contend the trial court erred in awarding penalties to Boes under the prompt pay statute, La. R.S. 9:2784.
On appeal, Defendants concede a violation of the prompt pay statute; however, they contend, as they did in the trial court,
Defendants’ reliance on Specialty Construction, as Boes contends, is misplaced. In Specialty Construction, the appellate court expressly noted that the only issue before it was “whether the trial court erred in finding that the one-year period set forth in La. R.S. 9:4823(A)(2) for filing a lawsuit to enforce a claim and privilege granted by the Private Works Act begins to run on the date a statement of claim and privilege is filed into the mortgage records.”
Given the Legislature failed to include a specific prescriptive period in La. R.S. 9:2784, Boes’ prompt pay claim is subject to the ten year prescriptive period for personal actions under La. C.C. art. 3499.
At trial, the date on which Enter-gy paid Gee Cee Group for its work on the Project was never established; at best, it was established that Entergy paid Gee Cee Group “sometime in 2003.” Given Boes’ petition was filed in 2013 (on February 19, 2013), it cannot be said that Boes’ petition is prescribed under the applicable ten year prescriptive period. Moreover, prescriptive periods are strictly construed against prescription and in favor of the obligation sought to be extinguished. See Dugas v. Thompson, 11-0178, p. 4 (La. App. 4 Cir. 6/29/11),
Summarizing, we find the trial court did not err in awarding Boes penalties under the prompt pay statute. Morеover, we find that the prompt pay statute forms the basis for both the trial court’s penalty award of $4,998.00 and its attorneys’ fee award of $8,000.00 to Boes.
Misapplication of funds claim
IggBoes contends that the trial court erred in rejecting its claim for penalties under the misapplication of funds statute, La. R.S. 9:4814.
On appeal, Boes contends that because Mr. Chigbu admitted that Gee Cee Group deposited Entergy’s payments for Boes’ work into its operating account and that it paid other business-related expenses instead of Boes, the trial court erred in failing to award penalties under the misapplication of funds statute. Noting the lack of jurisprudence interpreting the civil misapplication of funds statute, Boes cites in support of its contention a case construing the criminal misapplication of funds statute, La. R.S. 14:202.
In Cohn, the defendant-contractor was convicted of criminal misapplication of funds, which the appellate court reversed. The Supreme Court granted the Statе’s writ and reinstated the defendant’s conviction. In so doing, the Supreme Court reasoned that the direct evidence in the record established that, the defendant I ^knowingly misapplied the funds.
[T]he statute requires more than simply proof that a contractor has left unpaid claims for materials and labor at the end of a construction contract. The statute clearly does not criminalize a bad business deal made by a contractor who otherwise applies all of the funds received under the contract for legitimate expenses and claims for materials and labor in the course of the project, although he cannot pay all of them because, for one reason or another, the project has exceeded its estimated' costs.
Cohn, 00-0313, p. 8,
Contrary to Boes’ contention, the facts in this case are distinguishable from those in Cohn. Here, no direct evidence of a knowing misapplication of funds was presented. To the contrary, the only evidence in the record supporting Boes’ misapplication of funds claim is Mr. Chigbu’s testimony that his standard рractice was to deposit funds into the general account and to use such funds to pay business-related expenses. The evidence presented in this case does not exclude the possibility that this was simply a- “bad business deal.” Cohn, supra. Boes’ reliance on Cohn is thus misplaced. We thus find no error in the trial court’s finding that Boes failed to prove Mr. Chigbu knowingly misapplied the funds owed to Boes. b/Thus, we find Boes’ contention that it was entitled to penalties under La. R.S. 9:4814 is unpersuasive. • ,
■Interest issue
Boes contends that the trial court erred in awarding interest from the date of judicial demand; it contends that it is entitled to interest on the amounts due and owing from the time the debts became due pursuant to La. C.C. art. 2000.
In its written reasons, the trial court cited Alexander v. Burroughs Corp.,
|2sAlthough the general rule in breach of contract cases is that judicial interest runs from the date of breach, the Louisiana Supreme Court recognized an exception to this rule in Trans-Global Alloy Limited v. First National Bank of Jefferson Parish,
Invoking the “highly complicated” case exception, the court in Ashy v. Trotter, 04-612, p. 21 (La.App. 3 Cir. 11/10/04),
While it is generally true that judicial interest should acсumulate from the date of breach in contract cases, as opposed to the date of judicial demand, the supreme court in Trans-Global Alloy ... held that in “highly complicated” cases where the issues are whether a breach has occurred and the appropriate damage amount, it is appropriate to award interest from the date of judicial demand. We find this case falls into the “highly complicated” category. It involves issues of whether a contract even existed and to what extent the contract terms extended.
As in Ashy, we find this case falls into the “highly complicated” category. Complicating factors in this case included the following:
• This is not a simple case in which the plaintiff is seeking to recover an undisputed amount due from a debtor as of a particular date. At trial, Mr. Boes acknowledged that the original agreement between the parties included a “pay-when-paid” term. The exact date on which Entergy paid Gee Cee Company was never established at trial. At best, it was established this occurred “sometime in 2003.”
126» Mr. Boes also acknowledged that “if Mr. Chigbu had timely paid Boes once he was paid by Entergy, no attorney fees or interest would have been due.”
• The original debtor, Gee Cee Company, is no longer in business. This suit involves an attempt to collect from a successor company, Gee Cee LA, and the president of both entities, Mr. Chigbu.
• A lapse of over a decade occurred between when the initial debt was incurred and suit was filed to collect it.
• Whether Gee Cee LA is indebted for only the original principal balance or the principal balance plus interest was disputed.
• Finally, whether the applicable interest rate was the specific rate set forth on the Invoices or the judicial interest rate was disputed.
Given these complicating factors, we find the trial court did not err in finding that Boes was entitled to interest from the date of judicial demand.
Attorneys’ fees
Boes challenges the trial court’s award of $8,000.00 in attorneys’ fees as inadequate. In Louisiana, an award of attorneys’ fees is not allowed except when authorized by statute or contract. Rivet v. State, Dep’t of Transp. & Dev., 96-0145, p. 10 (La. 9/5/96),
The determination of a reasonable attorneys’ fee is determined on a case-by-case basis based on the facts of each individual case. Filson, 07-0755 at p. 6,
At the hearing to fix attorneys’ fees and costs, the trial court acknowledged on the record that Boes’ counsel had done “a lot of work” on this case. Also at the hearing, Boes’ counsel acknowledged that Boes’ request for an attorneys’ fee award of $35,132.00 was “shocking on its face, given the amount of the judgment, $20,000.” Boes’ counsel, however, emphasized that Boes was requesting the actual amount of attorneys’ fees that it incurred. Rejecting Boes’ contention that it was entitled to attorneys’ fees in the amount Boes’ actually incurred, the trial court orally reasoned as follows;
The Court has specifically gone through all of the bills that were submitted by counsel for Boes Ironworks. There was, in fact, a lot of motion practice. There was, in fact, a lot of work donе. However, the Court finds that even an award of attorneys’ fees of $8,000 is nearly 50 percent of the [amount sued upon] ... I do believe that an 'extensive amount of work was, 'infact, done, but I believe that it would not be equitable to award more than. $8,000.
On appeal, Boes contends that the trial court erred in focusing on the amount sued upon in setting the attorneys’ fee award. Boes emphasizes that the |2¡jjurisprudence has recognized that, in appropriate circumstances, attorneys’ fees at or above the principal amount claimed may be awarded. In support, Boes cites Troth, supra-, and South Texas Pioneer Millwork v. Favalo-ra Constructors, Inc.,
Louisiana appellate courts, as Boes emphasizes, have affirmed attorneys’ fee awards in excess of the amount sued upon.
| saFinally, the deference given the trial court judge on the issue of the reasonableness of an attorneys’ fee award is “a recognition of the trial judge’s greater familiarity with the issues involved in the overall case and with the specific value of the services rendered by the attorney whose fee is under consideration.” Billieson v. City of New Orleans, 15-0858, p. 6 (La.App. 4 Cir. 1/27/16),
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
Notes
. Addressing the meaning of a "pay when paid” provision, this court recently noted:
"Most courts hold that [the ['pay-when-paid’] type of clause at least means that the contractor’s obligation to make payment is suspended for a reasonable amount of time for the contractor to receive payment from the owner. The theory is that a 'pay-when-paid’ clause creates a timing mechanism only. Such a clause does not create a condition precedent to the obligation to ever make payment, and it does not expressly shift the risk of the owner’s nonpayment to the subcontractor....”
Tymeless Flooring, Inc. v. Rotolo Consultants, Inc., 14-1392, p. 1, n. 1 (La.App. 4 Cir. 5/20/15),
. The relationship between the two corporate entities—Gee Cee Group and Gee Cee LA— requires explanation. At the hearing on the prescription exception, Mr. Chigbu explained that Gee Cee Group was heavily involved with the Harrah’s Casino project, which went bankrupt. As a result, Gee Cee Group suffered financial problems. Rather than file bankruptcy, Mr. Chigbu testified that he decided to form a new company. For this reason, he formed Gee Cee LA in 1997. The record reflects that from 1997 to 2006 Gee Cee Group and Gee Cee LA co-existed. In 2001, Entergy approached Gee Cee Group regarding the Project. Mr. Chigbu explained that the reason for this was because Gee Cee Group was "the only entity that was in the Entergy system.” At that time, Gee Cee Group was otherwise an inactive corporate entity. Mr. Chigbu explained that between 1997—when Gee Cee LA was created—and 2005—when Hurricane Kаtrina struck.the area—the only work that Gee Cee Group did was the Entergy job—the Project. He testified that "[t]here was no other business don[e by] Gee Cee Group after all the Harrah's difficulty except for the Entergy job, and that was only because that was the name in the Entergy system.” Following Hurricane Katrina—roughly in 2006—Gee Cee Group was abandoned. The record further reflects that the Louisiana Secretary of State revoked Gee Cee Group's corporate charter in November 2009.
. The interest amounts were $51,479.40, $499.80, and $13,940.60 for the periods December 27, 2001 to August 4, 2010; August 4, 2010, to September 3, 2010; and September 3, 2010, to December 3, 2012, respectively.
. Defendants also filed an exception of no right of action and motion for summary judgment, which were both denied.
. Boes asserts the following three assignments of error:
1. The trial court erred in limiting Boes’ attorneys’ fees award to $8,000.00 when the record shows that the underlying matter required multiple court appearances, three depositions, over 200 written discovery requests were propounded to Boes, and defendants filed multiple exceptions and a motion for summary judgment, and routinely filed reply, sur-reply, and post-hearing memoranda to which Boes was required to respond.
2. The trial court erred by denying Boes’ misapplication claim when Gibson Chig-bu, Gee Cee Group’s principal, admitted the funds paid to Gee Cee Group by Entergy for Boes’ work on the Perdido Street warehouse project were deposited into Gee Cee Group's general operating account, and used to pay other bills of the business.
3. To the extent the trial court only awarded Boes interest from the date of judicial demand and not from the date payment was due, the trial court erred as Louisiana law provides that when the object of performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due.
. The Defendants assert the following four assignments of error:
1. The claim for penalties under La R.S. 9:2784 was granted even though it was prescribed by the lapse of at least two years after December 21, 2001, had prescribed on May 11, 2010, and could not be acknowledged.
2. Under normal circumstances, the manifest error rule would be applicable to the factual findings of the district court and its characterization of the relationship of Boes and Gee Cee Group. Here, however, the facts were undisputed. Consequently, the district court’s "factual” conclusions were actually legal conclusions entitled to no deference.
3. Gee Cee LA was found to be a mere continuation of Gee Cee Group although the conditions for this doctrine were not met.
4. The doctrine of detrimental reliance should have been applied to bar Boes and Mr. Boes from taking a position contrary to its and his prior acts, admissions, representations, and silence.
. We acknowledge, as Defendants contend, that when "there is no dispute as to the dis-positive facts, the issue can be decided as a matter of law and the review is de novo,” Nunez v. Pinnacle Homes, L.L.C., 15-0087, p. 7 (La. 10/14/15),
.Defendants also cite Bank of Am., N.A. v. Garden Dist. Pet Hasp,, Inc.,
[A]s Louisiana courts have noted, "[a] threshold requirement to trigger a determination of whether successor liability is applicable under the 'continuation' exception is that one corporation must have purchased all or substantially all of the assets of another.” See J.D. Fields & Co. v. Nottingham Const. Co., LLC, 2015-0723,2015 WL 6875153 , at *7,184 So.3d 99 (La. App. 1 Cir. 2015); Pichón v. Asbestos Defendants,52 So.3d 240 , 244 (La. App. 4 Cir. 2010) (same); see also Comardelle v. Pennsylvania Gen. Ins. Co., No. CIV.A. 13-6555,2014 WL 7139436 , at *3 n. 31 (E.D. La. Dec, 15, 2014) (doubting that successor liability doctrine applied when predecessor corporation did not sell substantially all of its assets to alleged successor).
. Defendants also note that the Harrah’s , bankruptcy was a valid reason for the creation of tire new corporation (Gee Cee LA) in 1997 and that all of the assets of Gee Cee Group were destroyed in Katrina in 2005, long before which Gee Cee Group was dormant.
. In its petition, Boes averred that “Gee Cee [LA] is the alter ego and/or mere continuum of Gee Cee Group .,. thereby making Gee . Cee [LA] liable for the debts of Gee Cee Group.”
. As noted elsewhere in this opinion, Gee Cee Group and Gee Cee LA co-existed as legal entities for most of the pertinent time period; Gee Cee LA was incorporated in 1997, and the Louisiana Secretary of State revoked Gee Cee Group's corporate charter in November 2009.
. This circuit adopted and apрlied the SBE for the first time in In re New Orleans Train Car Leakage Fire Litig., 96-1677, p. 3 (La.App. 4 Cir. 3/5/97),
.The Green factors are as follows:
1. corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control;
2. common directors or officers;
3. unified administrative control of corporations whose business functions are similar or supplementary;
4. directors and officers of one corporation act independently in the interest of that corporation;
5. corporation financing another corporation;
6. inadequate capitalization ("thin corporation”);
7. corporation causing the incorporation of another affiliated corporation;
8. corporation paying the salaries and other expenses or losses of another сorporation;
9. receiving no business other than that given to it by its affiliated corporations;
10. corporation using the property of another corporation as its own;
11. noncompliance with corporate formalities;
12. common employees;
13. services rendered by the employees of one corporation on behalf of another corporation;
14. common offices;
15. centralized accounting;
16. undocumented transfers of funds between corporations; ■
17. unclear allocation of profits and losses between corporations; and
18. excessive fragmentation of a single enterprise into separate corporations.
Green,
. The following eight factors have been applied in determining whether a new company is a mere continuation of an older company:
1. retention of the same employees;
2. retention of the same supervisory personnel;
3. retention of the same production facility in the same physical location;
4. production of the same product;
5. retention of the same name;
6. continuity of assets;
7. continuity of general business operations; and
8.whether the successor holds itself out as the continuation of the previous enterprise.
Hollowell v. Orleans Reg'l Hosp. LLC,
. See In re Scully's Aluminum Crafts, Inc.,
.. See La. C.C. art. 3494 (providing that a three year prescriptive period applies to "[a]n action on an open account.”); La. C.C art. 3499 (providing that "[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”).
. All other documentation that may have existed was destroyed as a result of the flood
. At the hearing on the prescription exception, Mr. Boes also testified that he understood the parties had a contractual relationship because the scope of work was provided for, because he ”believe[d] there was also a Certificate of Insurance that was sent, which is normal during the course of business with a contract,” and because a retainage was withheld on the Project. Indeed, one of the Invoices was for the 10% retainage on the Project. He testified that ”[o]n an open account, you don’t withhold retainage.”
. The relevance of this finding that Mr. Chig-bu had a pecuniary interest is the application of an exception to the rule against using parol evidence to establish a promise to pay the debt of a third person. See La. C.C, art. 1847 (providing that ”[p]arol evidence is inadmissible to establish ... a promise to pay the debt of a third person_”). The exception to this rule applies when the oral promise to pay is prompted by a pecuniary or business motivation on the part of the promisor. Deutsch, Kerrigan & Stiles v. Fagan, 95-0811, 95-0812 (La. App. 1 Cir. 12/15/95),
. Boes contends that this claim is not properly before this court since it was not raised before the trial court. Defendants raised the detrimental reliance claim in their post-trial memorandum; however, the trial court did not expressly address it in its written reasons for judgment. The trial court, by failing to address this claim, implicitly rejected it. Because the claim was raised in the trial court, we find it appropriate to address it.
. The doctrine of detrimental reliance is codified in La. C.C. art. 1967, which provides:
Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was .reasonable in so relying. Recovery ,may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.
. The issue of whether judicial interest was properly awarded from the date of judicial demand is addressed elsewhere in this opinion.
. La. R.S. 9:2784 C provides as follows:
If the contractor or subcontractor without reasonable cause fails to make any payment to his subcontractors and suppliers within fourteen consecutive days of the receipt of payment from the owner for improvements to an immovable, the contractor or subcontractor shall pay to the subcontractors and suppliers, in addition to the payment, a penalty in the amount of one-half of one percent of the amount due, per day, from the expiration of the period allowed herein for payment after the receipt of payment from the owner. The total penalty shall not exceed fifteen percent of the outstanding balance due. In addition, the contractor or subcontractor shall be liable for reasonable attorney fees for the collection of the payments due the subcontractors and suppliers. However, any claim which the court finds to be without merit shall subject the claimant to all reasonable costs and attorney fees for the defense against such claim.
. Although this issue was raised in the trial court, the trial court made no express ruling on the issue. The trial court, by failing tо address it, implicitly denied the exception.
. See La. C.C. art. 3499 (providing that "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years”); Parry v. Administrators of Tulane Educ. Fund, 02-0382, p. 16 (La.App. 4 Cir. 9/4/02),
. Ordinarily, the mover for an exception of prescription bears the initial burden of showing the claims have prescribed. See Scott v. Zaherí, 14-0726, p. 7 (La.App. 4 Cir. 12/3/14), 157 So,3d 779, 784-85 (citing Spott v. Otis Elevator Co.,
. La. R.S. 9:4814 A provides:
No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims to sellers of movables or laborers due for the construction or under the contract. Any seller of movables or laborer whose claims have not been settled may file an action for the amount due, including reasonable attorneys’ fees and court costs, and for civil penalties as provided in this Section.
.La. R.S. 14:202 A provides:
No person, contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shallknowingly fail to apply the money received as necessary to settle claims for material and labor due for the construction or under the contract.
. The Supreme Court noted the evidence on which it relied to reinstate the defendant’s conviction was as follows:
[T]he State presented direct evidence in the form of bank records and the state’s "data base” to prove that suppliers were not paid because TCM [the contractor] did not apply all the money it received from the each owner tо the labor and material bills it incurred on each respective owner’s job. Second, in this case there were two victims and the bank records clearly show that money from one victim was being used to settle claims belonging to another victim and vice versa, and that in the end, materi-almen from both jobs were not paid. Finally, there were numerous materialmen liens filed in this case.
Cohn, 00-0313 at pp. 8-9,
. La. C.C. art. 2000 provides as follows:
When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500.
. See La. R.S. 9:2784 C (providing that "any claim which the court finds to be without merit shall subject the claimant to all reasonable costs and attorney fees for the defense against such claim.”).
. The Williamson factors are as follows: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence and skill of counsel; and the (10) the court's own knowledge.
In Troth Corp. v. Deutsch, Kerrigan & Stiles, L.L.P., 06-0457, p. 3 (La.App. 4 Cir. 1/24/07),
. Boes did not request an award for the attorneys' fees it incurred on appeal.
. See Brandner v. Staf-Rath, L.L.C., 12-62, pp. 7-8 (La.App. 5 Cir. 5/31/12),
. See also 1001 Harimaw Court E., L.L.C. v. Blo, Inc., 10-860, p. 5 (La.App. 5 Cir. 5/24/11),