Wallace C. Drennan, Inc. v. St. Charles Parish

202 So. 3d 535, 16 La.App. 5 Cir. 177, 2016 La. App. LEXIS 1739
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2016
DocketNO. 16-CA-177
StatusPublished
Cited by8 cases

This text of 202 So. 3d 535 (Wallace C. Drennan, Inc. v. St. Charles Parish) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace C. Drennan, Inc. v. St. Charles Parish, 202 So. 3d 535, 16 La.App. 5 Cir. 177, 2016 La. App. LEXIS 1739 (La. Ct. App. 2016).

Opinion

WICKER, J.

Defendants-Appellants, St. Charles Parish and V.J. St. Pierre, Jr., in his capacity as President of St. Charles Parish (hereinafter collectively referred to as “the Parish”), appeal the granting of a petition for writ of mandamus ordering the Parish to pay Wallace Drennan, Inc. (hereinafter referred to as “Drennan”), $100,000.00, and further ordering the Parish to pay Drennan $2,000.00 in attorney’s fees. Drennan has answered the appeal requesting additional attorney’s fees incurred in opposing this appeal. For the following reasons, we affirm the ruling of the trial court, grant Drennan’s request for additional attorney’s fees, and award $2,500.00 in additional attorney’s fees incurred by Drennan in defending this appeal.

FACTUAL AND PROCEDURAL HISTORY

This case arises out of work performed pursuant to a public contract between Drennan and the Parish under which Drennan replaced existing metal culverts on Canal #10 in St. Charles Parish. This appeal stems from the trial court’s grant of Drennan’s third petition for writ of mandamus. Drennan’s first petition for writ of mandamus was dismissed pursuant to an exception of no cause of action filed by the Parish. Drennan appealed the trial court’s grant of the exception of no cause of action and this Court set forth the factual and procedural history leading up to the first petition for writ of mandamus as follows:

Following a bid process, the Parish determined Drennan to be the lowest bidder and Drennan commenced work on the project. The contract provided for a procedure whereby an engineer would have to approve each application for payment submitted by Drennan prior to disbursing payment.
The Petition for Writ of Mandamus asserts that the first eight of these applications were approved. It further asserts that Drennan submitted its ninth application for payment and, again, the engineer approved the application. However, the Parish refused to pay the amount submitted in Drennan’s ninth application. The petition further alleges that the Parish has not disputed that it owes the payment for the ninth application. However, the petition states that the Parish refused to pay the amount due in the ninth application because the Parish contends that it overpaid Dren-nan in its previous applications for payments.
In July of 2012, Drennan requested a Certificate of Substantial Completion, which was issued in March of 2013. Drennan recorded the certificate and the Parish thereafter made two partial payments to Drennan. However, the petition alleges that the Parish still owes Drennan $286,575.951 for work completed pursuant to the contract.
After Drennan’s amicable demand for payment was refused, Drennan filed a Petition for Writ of Mandamus pursuant to La. R.S. 38:2191(D) to compel the Parish to pay the full amount owed under the contract. The Parish filed an Exception of No Cause of Action, asserting that Drennan does not have a cause of action in mandamus. The Parish argued that, under La. C.C.P. 3862, mandamus is not an appropriate remedy in this case because Drennan has the ability to pursue the relief requested through an ordinary proceeding. The trial court, relying on general mandate [sic] principles, granted the Parish’s exception of no cause of action. The trial [539]*539court found that Drennan has the ability to pursue the relief requested through other forms of proceedings and found that Drennan is not entitled to a mandamus proceeding. The instant appeal followed.

Wallace C. Drennan, Inc. v. St. Charles Parish, 14-89 (La.App. 5 Cir. 8/28/14), 164 So.3d 186, 188-89.

This Court reversed the trial court’s grant of the exception of no cause of action, finding that Drennan’s petition “sufficiently state[d] a cause of action for payments due pursuant to its contract with the Parish and that La. R.S. 38:2191(D) specifically provides that such disputes ‘shall be subject to mandamus ....’” Wallace C. Drennan, Inc., 164 So.3d at 190. This Court also found that the trial court’s reliance on the general principles of mandamus was misplaced as the availability of relief by ordinary proceedings did not' preclude an action for mandamus under La. R.S. 38:2191. Id.

On September 29, 2015, Drennan filed its third petition for writ of mandamus.2 The petition again,asserted that the Parish failed to pay Drennan $100,000.00 of the amount sought in Drennan’s ninth application for payment and that, pursuant to La. R.S. 38:2191(D), Drennan was entitled to mandamus relief in that amount,

On October 12, 2015, the Parish filed peremptory exceptions of res judicata, no cause of action, and no right of action. Counsel for all parties waived delays, and Judge Timothy Marcel heard the Parish’s exceptions on October 13, 2015. At the conclusion of the hearing on the exceptions, the trial court denied the Parish’s exceptions of no cause of action, no right of action, and res judicata.

The court proceeded with a hearing on the merits of Drennan’s petition. During the hearings, portions of the contract between Drennan and the Parish, all nine of Drennan’s applications for payment, various letters among the parties and counsel for each party, and the deposition transcript of consulting project engineer Mohammad Saleh were admitted as evidence.

The contract excerpts in the record include several ostensibly competing provisions upon which the parties relied throughout the proceedings. Paragraph 9.10, captioned “Determination for Unit Prices,” provides:

ENGINEER will determine the actual quantities and classifications of Unit Price work performed, by CONTRACTOR. ENGINEER will review with CONTRACTOR ENGINEER’S preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). ENGINEER’S written decisions thereon will be final and binding upon OWNER and CONTRACTOR, unless, within ten days after the date of any such decision, either OWNER or CONTRACTOR delivers to the other party to the Agreement and to ENGINEER written notice to appeal from such a decision.

Further, paragraph 14.4, captioned “Review of Applications for Progress Payment,” provides:

ENGINEER will, within ten days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to OWNER, or return the Application to CONTRACTOR indicating in writing ENGINEER’S reasons for refusing to recommend payment. In the latter case, CONTRACTOR may make [540]*540the necessary corrections and resubmit the Application. Ten days after presentation of the Application for Payment with ENGINEER’S recommendation, the amount recommended will |4(subject to the provisions of the last sentence of paragraph 14.7) become due and when due will be paid by OWNER to CONTRACTOR.

Lastly, paragraph 14.7 provides:

ENGINEER may refuse to recommend the whole or any part of any payment if, in ENGINEER’S opinion it would be incorrect to make such representations to OWNER. ENGINEER may also refuse to recommend any such payment, or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended, to such extent as may be necessary in ENGINEER’S opinion to protect OWNER from loss because:
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202 So. 3d 535, 16 La.App. 5 Cir. 177, 2016 La. App. LEXIS 1739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-c-drennan-inc-v-st-charles-parish-lactapp-2016.