STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 1311
COAST 2 COAST CONSTRUCTION, L.L.C.
VERSUS
PARISH OF ST. TAMMANY
Judgment Rendered: JUN 16 2020
Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Suit Number 2018- 12739
Honorable Martin Coady, Presiding
Ernest S. Anderson Counsel for Plaintiff/Appellee Slidell, LA Coast 2 Coast Construction, L.L.C.
Ronald S. Hagan Counsel for Defendant/Appellant Assistant District Attorney St. Tammany Parish Government Mandeville, LA
BEFORE: WMPPLE, C. J., GUIDRY, AND BURRIS,' JJ
1 William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court. GUIDRY, J.
Defendant/Appellant, St. Tammany Parish Government ( Parish), appeals
from a judgment of the trial court in favor of plaintiff/appellee, Coast 2 Coast
Construction, LLC ( Coast), granting a writ of mandamus compelling the Parish to
pay the final amount due under a construction contract and awarding Coast
attorney' s fees pursuant to La. R.S. 38: 2191( B). For the reasons that follow, we
reverse and remand.
FACTS AND PROCEDURAL HISTORY
On July 25, 2014, the Parish awarded a public works contract to Coast for
construction of flood control improvements to Huntwyck Village Subdivision Phase
II pursuant to the Louisiana Public Bid Law, La. R. S. 38: 2212. Coast thereafter
commenced work on the project, and on December 30, 2015, the Parish issued a
certificate of substantial completion to Coast, and on October 10, 2016, Coast issued
a clear lien certificate to the Parish.
Coast filed a petition for damages and mandamus on June 1, 2018, naming the
Parish as a defendant and asserting that the Parish had failed to tender final payment
due within forty-five days of its receipt of the clear lien certificate. Coast asserted
that the following had not been paid, despite amicable demand: approved pay
applications and approved change orders in the total amount of $130, 733. 94 and
retainage held by the Parish under the contract in the amount of $107, 371. 83. Coast
also asserted that the Parish continued to contest change orders in the total amount
of $190, 288. 76 without a factual basis. As such, Coast asserted that the total amount
of final payments owed by the Parish under the contract was $ 428, 394. 53. Coast
sought mandamus directing the Parish President to pay the undisputed amount owed
to Coast and to resolve the disputed amounts as required by the terms of the contract.
Coast also sought attorney' s fees pursuant to La. R.S. 38: 2191( B), contractual
z damages, delay damages, and damages for violation of closed specifications
prohibition.
The Parish thereafter filed an answer, affirmative defenses, and
reconventional demand. In the reconventional demand, the Parish asserted that the
contract included provisions for the assessment of $500. 00/ day in liquidated or
stipulated damages. The Parish asserted that due to the poor and slow performance
of Coast, the contract was cancelled in June 2015, but that the parties reinstituted the
contract and executed an amendment to the contract on September 3, 2015, which
included an extension of sixty days to complete the project. Additionally, liquidated
damages were increased to $ 1, 000. 00/ day. The Parish asserted that Coast did not
complete the project within the updated schedule timelines and was assessed
1, 000. 00 for thirty-one days during the period for which pay application number 6
applied, for a total of $31, 000. 00 in liquidated damages. The Parish asserted that this
amount was withheld from pay application number 6 according to the contract
provisions and no funds were paid to Coast.
The Parish further asserted that Coast issued substantial completion of the
project on November 5, 2015, and received a punch list. The Parish asserted that
Coast failed to complete the punch list items in a timely manner and was assessed
liquidated damages of $1, 000.00/ day for sixty-four days during the period for which
pay application number 7 applied, for a total of $64, 000. 00. The Parish asserted that
this amount was withheld from pay application number 7 according to the contract
provisions and no funds were paid to Coast. Accordingly, the Parish asserted that
under the terms of the contract, it is entitled to have ninety- five days of liquidated
damages, accruing at the rate of $1, 000.00/ day, assessed against Coast.
The trial court held a hearing on Coast' s petition for mandamus on January
30, 2019. The parties stipulated at the hearing that the final amount owed under the
contract is $ 95, 000. 00, which is equal to the amount of liquidated damages claimed
3 by the Parish. Following the hearing, the trial court signed a judgment in favor of
Coast and against the Parish, granting the writ of mandamus compelling the Parish
to pay the final amount due under the construction contract in the amount of
95, 000. 00 with judicial legal interest due from October 14, 2016, until paid. The
trial court also awarded Coast $ 12, 450.00 in attorney' s fees pursuant to La. R.S.
38: 2191( B). The Parish thereafter filed a motion for new trial, which the trial court
denied on April 24, 2019. The Parish now appeals from the trial court' s judgment.
DISCUSSION
The payments for public contracts are governed by Louisiana Revised Statues
Title 38, Chapter 10. Specifically, La. R.S. 38: 2191 provides, in part:
A. All public entities shall promptly pay all obligations arising under public contracts when the obligations become due and payable under the contract. All progressive stage payments and final payments shall
be paid when they respectively become due and payable under the contract.
B. ( 1) Any public entity failing to make any progressive stage payment within forty-five days following receipt of a certified request for payment by the public entity without reasonable cause shall be liable for reasonable attorney fees and interest charged at one- half percent accumulated daily, not to exceed fifteen percent. Any public entity failing to make any final payments after formal final acceptance within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorney fees and interest charged at one- half percent accumulated daily, not to exceed fifteen percent.
C. The provisions ofthis Section shall not be subject to waiver by contract.
D. 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 award and execution of the contract, including any authorized change orders.
The Parish contends that the trial court erred in granting mandamus ordering
it to pay Coast $ 95, 000. 00, because the $ 95, 000. 00 was not due and payable under
the contract, as it was properly deducted as liquidated damages from the contract
amount pursuant to the terms of the contract.
4 This court recently addressed this identical issue in Law Industries, LLC v.
Board of Supervisors of Louisiana State University, 18- 1756 ( La. App. 1st Cir.
3/ 2/ 20), So.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CA 1311
COAST 2 COAST CONSTRUCTION, L.L.C.
VERSUS
PARISH OF ST. TAMMANY
Judgment Rendered: JUN 16 2020
Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Suit Number 2018- 12739
Honorable Martin Coady, Presiding
Ernest S. Anderson Counsel for Plaintiff/Appellee Slidell, LA Coast 2 Coast Construction, L.L.C.
Ronald S. Hagan Counsel for Defendant/Appellant Assistant District Attorney St. Tammany Parish Government Mandeville, LA
BEFORE: WMPPLE, C. J., GUIDRY, AND BURRIS,' JJ
1 William J. Burris, retired, serving pro tempore by special appointment of the Louisiana Supreme Court. GUIDRY, J.
Defendant/Appellant, St. Tammany Parish Government ( Parish), appeals
from a judgment of the trial court in favor of plaintiff/appellee, Coast 2 Coast
Construction, LLC ( Coast), granting a writ of mandamus compelling the Parish to
pay the final amount due under a construction contract and awarding Coast
attorney' s fees pursuant to La. R.S. 38: 2191( B). For the reasons that follow, we
reverse and remand.
FACTS AND PROCEDURAL HISTORY
On July 25, 2014, the Parish awarded a public works contract to Coast for
construction of flood control improvements to Huntwyck Village Subdivision Phase
II pursuant to the Louisiana Public Bid Law, La. R. S. 38: 2212. Coast thereafter
commenced work on the project, and on December 30, 2015, the Parish issued a
certificate of substantial completion to Coast, and on October 10, 2016, Coast issued
a clear lien certificate to the Parish.
Coast filed a petition for damages and mandamus on June 1, 2018, naming the
Parish as a defendant and asserting that the Parish had failed to tender final payment
due within forty-five days of its receipt of the clear lien certificate. Coast asserted
that the following had not been paid, despite amicable demand: approved pay
applications and approved change orders in the total amount of $130, 733. 94 and
retainage held by the Parish under the contract in the amount of $107, 371. 83. Coast
also asserted that the Parish continued to contest change orders in the total amount
of $190, 288. 76 without a factual basis. As such, Coast asserted that the total amount
of final payments owed by the Parish under the contract was $ 428, 394. 53. Coast
sought mandamus directing the Parish President to pay the undisputed amount owed
to Coast and to resolve the disputed amounts as required by the terms of the contract.
Coast also sought attorney' s fees pursuant to La. R.S. 38: 2191( B), contractual
z damages, delay damages, and damages for violation of closed specifications
prohibition.
The Parish thereafter filed an answer, affirmative defenses, and
reconventional demand. In the reconventional demand, the Parish asserted that the
contract included provisions for the assessment of $500. 00/ day in liquidated or
stipulated damages. The Parish asserted that due to the poor and slow performance
of Coast, the contract was cancelled in June 2015, but that the parties reinstituted the
contract and executed an amendment to the contract on September 3, 2015, which
included an extension of sixty days to complete the project. Additionally, liquidated
damages were increased to $ 1, 000. 00/ day. The Parish asserted that Coast did not
complete the project within the updated schedule timelines and was assessed
1, 000. 00 for thirty-one days during the period for which pay application number 6
applied, for a total of $31, 000. 00 in liquidated damages. The Parish asserted that this
amount was withheld from pay application number 6 according to the contract
provisions and no funds were paid to Coast.
The Parish further asserted that Coast issued substantial completion of the
project on November 5, 2015, and received a punch list. The Parish asserted that
Coast failed to complete the punch list items in a timely manner and was assessed
liquidated damages of $1, 000.00/ day for sixty-four days during the period for which
pay application number 7 applied, for a total of $64, 000. 00. The Parish asserted that
this amount was withheld from pay application number 7 according to the contract
provisions and no funds were paid to Coast. Accordingly, the Parish asserted that
under the terms of the contract, it is entitled to have ninety- five days of liquidated
damages, accruing at the rate of $1, 000.00/ day, assessed against Coast.
The trial court held a hearing on Coast' s petition for mandamus on January
30, 2019. The parties stipulated at the hearing that the final amount owed under the
contract is $ 95, 000. 00, which is equal to the amount of liquidated damages claimed
3 by the Parish. Following the hearing, the trial court signed a judgment in favor of
Coast and against the Parish, granting the writ of mandamus compelling the Parish
to pay the final amount due under the construction contract in the amount of
95, 000. 00 with judicial legal interest due from October 14, 2016, until paid. The
trial court also awarded Coast $ 12, 450.00 in attorney' s fees pursuant to La. R.S.
38: 2191( B). The Parish thereafter filed a motion for new trial, which the trial court
denied on April 24, 2019. The Parish now appeals from the trial court' s judgment.
DISCUSSION
The payments for public contracts are governed by Louisiana Revised Statues
Title 38, Chapter 10. Specifically, La. R.S. 38: 2191 provides, in part:
A. All public entities shall promptly pay all obligations arising under public contracts when the obligations become due and payable under the contract. All progressive stage payments and final payments shall
be paid when they respectively become due and payable under the contract.
B. ( 1) Any public entity failing to make any progressive stage payment within forty-five days following receipt of a certified request for payment by the public entity without reasonable cause shall be liable for reasonable attorney fees and interest charged at one- half percent accumulated daily, not to exceed fifteen percent. Any public entity failing to make any final payments after formal final acceptance within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorney fees and interest charged at one- half percent accumulated daily, not to exceed fifteen percent.
C. The provisions ofthis Section shall not be subject to waiver by contract.
D. 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 award and execution of the contract, including any authorized change orders.
The Parish contends that the trial court erred in granting mandamus ordering
it to pay Coast $ 95, 000. 00, because the $ 95, 000. 00 was not due and payable under
the contract, as it was properly deducted as liquidated damages from the contract
amount pursuant to the terms of the contract.
4 This court recently addressed this identical issue in Law Industries, LLC v.
Board of Supervisors of Louisiana State University, 18- 1756 ( La. App. 1st Cir.
3/ 2/ 20), So. 3d , wherein the defendant had likewise alleged in a mandamus
proceeding that no amounts were due under the public contract because it was
entitled to withhold that amount as liquidated damages in accordance with the terms
of the parties' contract. The trial court, agreeing with the defendant, denied the
plaintiffs petition for mandamus. On appeal, however, this court found that it was
bound to apply La. R. S. 38: 2191( D) as written, which states that a public entity shall
be subject to a mandamus to compel the payment of any sums due under the contract.
This court further found that in a case where liquidated damages are at issue, in order
to determine the amount owed or " due" under the parties' contract, the trial court
must determine the amount of liquidated damages, as provided for in the contract,
which is owed to the defendant. Law Industries, LLC, 18- 1756 at pp. 13.
Accordingly, this court found in Law Industries, LLC that if a plaintiff elects
to use a mandamus proceeding, the trial court must determine in a summary
proceeding the sum owed under the parties' contract, including the amount of
liquidated damages payable under the contract' s provisions. If, after a summary
hearing, the trial court determines that a sum is due to the plaintiff under the public
contract, the trial court may order a judgment making the writ of mandamus
peremptory. Thereafter, the public officer or entity shall pay the amount ordered.
Law Industries, LLC, 18- 1756 at p. 14.
In the instant case, the trial court found in its reasons for judgment that the
request by Coast for mandamus under La. R.S. 38: 2191( D) for final payment due
under the contract is distinct from the Parish' s separate claim against Coast for
liquidated damages and as such, the Parish' s claim must be adjudicated separately
from the mandamus proceeding. In light of this court' s previous decision in Law
Industries, LLC, we find that the trial court legally erred in failing to consider the
5 Parish' s claim for liquidated damages in determining the amount due to Coast in the
mandamus proceeding. Accordingly, we reverse the trial court' s judgment and
remand this matter to the trial court to determine the sum owed under the parties'
contract in a mandamus proceeding in accordance with La. R.S. 38: 2191( D) and to
enter judgment accordingly. See Law Industries, LLC, 18- 1756 at pp. 14- 15. 2
CONCLUSION
For the foregoing reasons, we reverse the judgment of the trial court and
remand this matter to the trial court for further proceedings consistent with this
opinion. All costs of this appeal are assessed to Coast 2 Coast Construction, LLC.
REVERSED AND REMANDED.
2 Considering our determination that the trial court legally erred in failing to determine the amount of liquidated damages payable under the contract requiring reversal of the judgment herein, we pretermit discussion of the remaining assignments of error. N STATE OF LOUISIANA
BURRIS, J., concurring. J1
I agree that this court is bound to follow the holding of Law Industries, LLC
v. Board of Supervisors of Louisiana State University, 2018- 1756 ( La. App. 1 st
Cir. 3/ 2/ 20), So. 3d , 2020 WL 1024901. See Pontchartrain Natural Gas
System v. Texas Brine Co., LLC, 2018- 0001 ( La. App. 1st Cir. 6/ 4/ 18), 253 So. 3d
156, writ denied, 2018- 1124 ( La. 9/ 28/ 18), 253 So. 3d 147 ( recognizing this court is
bound by the " law of the circuit" doctrine to follow its prior decisions.) Therefore,
I concur with the result reached herein.
However, I write separately to note my agreement with Judge Welch' s dissent
in Law Industries that a claim for liquidated damages should be tried as an ordinary
proceeding, separate from the mandamus proceeding provided for in La. R. S.
38: 2191 to recover amounts due under the contract. As noted by Judge Welch,
litigating the various issues that may arise in a contract dispute in a summary
proceeding in order to determine what sums are owed under a public contract thwarts
the purpose of the speedy resolution of contractual claims via mandamus envisioned
by La. R.S. 38: 2191. Law Industries, So. 3d , 2020 WL 1024901, * 10.