Wallace C. Drennan, Inc. Versus Timothy P. Kerner, in His Capacity as Mayor of the Town of Lafitte and the Town of Lafitte

• Court: Louisiana Court of Appeal
• Decided: December 18, 2024
• Docket: 23-CA-428
• Status: Unknown

Opinion

WALLACE C. DRENNAN, INC. NO. 23-CA-428

VERSUS FIFTH CIRCUIT

TIMOTHY P. KERNER, IN HIS CAPACITY AS COURT OF APPEAL MAYOR OF THE TOWN OF LAFITTE AND THE TOWN OF LAFITTE STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 808-957, DIVISION "A" HONORABLE RAYMOND S. STEIB, JR., JUDGE PRESIDING

December 18, 2024

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Scott U. Schlegel

REVERSED; REMANDED SUS SJW

WICKER, J., CONCURS WITH REASONS FHW COUNSEL FOR PLAINTIFF/APPELLANT, WALLACE C. DRENNAN, INC. Loretta G. Mince

COUNSEL FOR DEFENDANT/APPELLEE, TIMOTHY P. KERNER, IN HIS CAPACITY AS MAYOR OF THE TOWN OF LAFITTE AND THE TOWN OF LAFITTE Sidney J. Hardy Blane A. Mader SCHLEGEL, J. This is the second appeal arising from a public works construction contract

between plaintiff, Wallace C. Drennan, Inc. (“Drennan”), and defendants, Timothy

P. Kerner, in his capacity as Mayor of the Town of Lafitte and The Town of Lafitte

(“Lafitte”). Lafitte disputes Drennan’s ability to maintain its claim for payment of

statutory interest pursuant to La. R.S. 38:2191 of the Louisiana Public Works Act, a

claim which Lafitte contends has been properly dismissed, as now barred by res

judicata. Drennan seeks review of the trial court’s July 10, 2023 judgment,

sustaining Lafitte’s exception of res judicata and dismissing Drennan’s claim for

statutory interest with prejudice. For the reasons stated herein, we find that

Drennan’s claims in this case for statutory interest are not barred by res judicata.

The trial court’s July 10, 2023 judgment granting Lafitte’s exception of res judicata

is reversed and this matter is remanded to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The litigation at hand, which has arisen from the public works contract at the

core of this case, has had a complex and tortured procedural path, including three

separate lawsuits and two appeals to date.

On January 11, 2019, Drennan was awarded a public bid contract involving

Hurricane Isaac-related drainage improvements in Lafitte.1 The original contract

price appropriated for the project was $2,062,809.00. Payment for this drainage

improvement contract was made through funds appropriated by the Parish of

Jefferson to Laffite. Pursuant to the terms of the contract, between March and

August 2019, Drennan sent Meyer Engineers, Ltd. (“Meyer”), Lafitte’s

representative, six monthly certified applications for payment. (Pay Applications

Nos. 1-6). During this time, three change orders were approved, increasing the

1 In the first appeal arising out of this case, this Court set forth the detailed facts and procedural history through June 4, 2021. See Wallace C. Drennan, Inc. v. Kerner, 21-664 (La. App. 5 Cir. 8/17/22), 348 So.3d 194 (“Kerner I”).

1 contract price to $2,277,284.75. On October 23, 2019, Lafitte executed a

Certificate of Substantial Completion for the project certifying that substantial

completion was achieved as of September 27, 2019.

On November 1, 2019 and March 19, 2020, Drennan submitted two

additional applications for payment, Pay Applications Nos. 8 (including Change

Order No. 4) and 9.2 A dispute then arose between the parties concerning the final

amounts owed under the contract. As a result, in May 2020, Drennan filed its first

Petition for Writ of Mandamus and on June 10, 2020, Lafitte responded with

exceptions including an exception of no right or cause of action stating that

Drennan could not use a mandamus proceeding to recover funds in excess of the

amount appropriated for the contract, both discussed more fully below. On June

24, 2020, the Jefferson Parish Council approved a final appropriation for the

project to cover additional amounts owed as a result of Change Order No. 4.

Due to various payment disputes related to the contract, Drennan filed three

separate lawsuits before and after the final appropriation which provide the

backdrop for this appeal.

Mandamus I, Case No. 806-417

In the first matter, Case No. 806-417, Drennan filed a Petition for Writ of

Mandamus on May 12, 2020 (“Mandamus I”), requesting that Lafitte be compelled

to remit payment for outstanding Pay Applications Nos. 8 ($375,714.09) and 9

($120,748.11) pursuant to La. R.S. 38:2191(D).3 Additionally, pursuant to La. R.S.

38:2191(B), Drennan demanded statutory interest totaling $135,876.28 and

2 Change Order No. 4 requested a $138,397.38 increase in the contract price for a total contract price of $2,415,682.13. 3 La. R.S. 38:2191(D) provides that a public entity that fails to make any progressive stage payments under a public contract arbitrarily or without reasonable cause, or fails to make the final payment within the time specified in the statute, “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 statute is quoted in full and discussed in more detail below.

2 attorney’s fees for Lafitte’s failure to timely remit payment for Pay Application

Nos. 1-6, 8, and 9.4

On June 10, 2020, Lafitte filed an Answer and Exceptions To Petition for

Writ of Mandamus asserting that La. R.S. 38:2191(D) only authorizes a mandamus

proceeding to compel payment up to the amount appropriated for the contract.

Lafitte alleged as follows that Drennan’s petition for mandamus requested

approximately $275,000 in excess of the appropriated amount:5

The original Contract Price appropriated for this project was $2,062,809.00 for a substantial completion date of July 11, 2019. Three change orders were subsequently approved, rendering a total Contract Price of $2,277,284.75. To date, this remains the amount of the appropriation made for the award and execution of this Contract, including all authorized change orders. Yet, Drennan seeks amounts roughly $275,000.00 above this amount, in contradiction with La. R.S. 38:2191(D). As Drennan has no right to mandamus for any amounts above the appropriation made for the award and execution of the contract, including any authorized change orders, this matter should be dismissed.

Lafitte further argued that using a mandamus proceeding to compel a payment in

excess of the appropriated amount “would be contrary to La. Const. art. 12, §

10(C).”

Thereafter, the parties reached an interim settlement of the case under which

Lafitte paid Drennan the balance of the funds previously appropriated for the

contract. On July 16, 2020, Drennan filed a motion to dismiss Case No. 806-417

without prejudice. On July 20, 2020, the trial court granted the motion to dismiss.

The court’s order particularized that Mandamus I was dismissed without prejudice,

and reserved Drennan’s right to seek relief for payments of amounts due under the

4 La. R.S. 38:2191(B)(1) provides that a public entity that fails to make any progressive stage payments within 45 days of its receipt of a certified request for payment, without reasonable cause, or fails to make a final payment after formal final acceptance and within 45 days of its receipt of a clear lien certificate “shall be liable for reasonable attorney fees and interest charged at one-half percent accumulated daily, not to exceed fifteen percent.” 5 Based on the calculations set forth in Lafitte’s exceptions to Mandamus I, the $275,000 that Drennan demanded in excess of the appropriated amount included change order work and statutory interest.

3 contract, statutory interest under La. R.S. 38:2191, attorney’s fees, costs, and “any

claim against Defendants that was not resolved.”

Ordinary Proceeding, Case No. 808-957

Drennan filed its second lawsuit against Lafitte, Case No. 808-957

(“Ordinary Proceeding”), on August 4, 2020, two weeks after Mandamus I was

settled. In its petition, Drennan sought to recover statutory interest totaling

$153,993.87, and reasonable attorney’s fees pursuant to La. R.S. 38:2191(B), for

Lafitte’s alleged failure to timely remit payment for Pay Applications Nos. 1-6, 8,

and 9. This is the lawsuit at issue in this appeal, as well as in Drennan’s first

appeal, both arising out of the trial court’s rulings on exceptions raised by Lafitte.6

On August 28, 2020, Lafitte filed an answer to Drennan’s petition, arguing

that no further payment was due to Drennan, no statutory interest was owed, and if

any payments were deemed to be untimely, Lafitte had reasonable cause for the

delay. Thereafter, communication and discovery in the Ordinary Proceeding were

ongoing between August and November 2020.

Mandamus II, Case No. 812-650

While the Ordinary Proceeding was pending, Drennan filed a second

Petition for Writ of Mandamus (“Mandamus II”) on December 1, 2020, Case No.

812-650, seeking payment from Lafitte for amounts recently appropriated to cover

work included in Payment Application Nos. 8 and 9. In its mandamus petition,

Drennan asserted that on June 24, 2020, the Jefferson Parish Council approved an

increase in the amount appropriated for the contract by $138,397.38, but Lafitte

withheld $137,000 from the payment for Pay Application Nos. 8 and 9 for

liquidated damages.7 Drennan also included a claim for attorney’s fees under La.

6 Kerner I, supra. 7 Jefferson Parish’s June 24, 2020 appropriation occurred before Mandamus I had settled and been dismissed on July 20, 2020.

4 R.S. 38:2191(B), as well as judicial interest and costs. Drennan contends that it

did not include a claim for statutory interest pursuant to La. R.S. 38:2191(B)

because these claims were pending in the Ordinary Proceeding. Pursuant to

Louisiana District Court Rules, Rule 9.4(b), the matter was transferred to the same

division of court in which the Ordinary Proceeding was pending.

On December 11, 2020, a bench trial was held on Mandamus II, at the

conclusion of which the court took the matter under advisement. On February 26,

2021, after both parties filed post-trial memoranda, the trial court issued a written

Judgment and Reasons for Judgment, granting Drennan a writ of mandamus, and

ordering Lafitte to pay Drennan $137,000 plus judicial interest and $10,000 in

attorney’s fees. The court rejected Lafitte’s claim for an offset against any amounts

it owed to Drennan for Pay Application Nos. 8 and 9 as liquidated damages due to

Drennan’s failure to meet contractual deadlines.8 The trial court recognized in its

reasons for judgment that Drennan did not seek statutory interest in Mandamus II,

did not introduce any evidence in support of the claims, and did not include any

decretal language regarding the statutory interest claims in its judgment. However,

at the same time, the trial court did address the merits of these claims in its reasons

when it commented on Drennan’s alleged failure to submit the claims for review

prior to filing their lawsuit.

Resumed Ordinary Proceeding, Case No. 808-957

Following the court’s judgment in Mandamus II, Drennan filed a motion for

summary judgment in the Ordinary Proceeding on March 23, 2021, seeking

statutory interest under La. R.S. 38:2191(B)(1) for Pay Applications Nos. 1-6, 8,

and 9. On May 12, 2021, Lafitte filed a peremptory exception of no right of

action.

8 The contract required Drennan to pay Lafitte liquidated damages of $500 for each consecutive calendar day that work was not completed by the contractually mandated substantial completion date.

5 On May 27, 2021, a hearing on the exception was held during which

Drennan explained that the claim for statutory interest was filed in an ordinary

proceeding because Lafitte objected to using mandamus proceedings to recover

amounts in excess of the amount originally appropriated for the contract. When

ruling, the trial court said, “I believe we did address the statutory interest question

in our reasons for judgment in the prior case [Mandamus II]. I find that this matter

is res judicata and that I’m going to grant the defendants’ exception of no right of

action.” The trial court dismissed the case with prejudice.

Drennan timely appealed the trial court’s ruling, and on August 17, 2022,

this Court vacated the trial court’s judgment and overruled defendants’ exception

of no right of action. Kerner I, 348 So.3d at 201. This Court found that the trial

court erred in basing its ruling on grounds of res judicata because the defendants

had not filed an exception grounded in that doctrine. Id. at 199-200. This Court

further found that, in doing so, the trial court had incorrectly applied the legal

standard for res judicata rather than applying the standard applicable to an

exception of no right of action. Id. at 199. This Court concluded that “Drennan is

of the class of persons authorized by La. R.S. 38:2191 to file suit against

defendants for statutory interest for late-payments on a public bid contract.” Id. at

201. This Court declined to consider defendants’ res judicata argument, declined

to rule on the merits of Drennan’s Motion for Summary Judgment, and remanded

the case to the trial court for further proceedings.

On February 8, 2023, following remand from this Court, Lafitte filed an

opposition to Drennan’s motion for summary judgment and a cross-motion for

summary judgment, arguing res judicata applied to preclude Drennan’s claims for

statutory interest because Drennan was required to bring all claims in one

proceeding and Drennan did not assert a claim for statutory interest in Mandamus

6 II. On March 2, 2023, Lafitte filed an amended opposition, adding a peremptory

exception of res judicata.

On June 2, 2023, Drennan filed an opposition to defendants’ motion for

summary judgment, responding that its claims for statutory interest are not barred

by res judicata. Specifically, Drennan argued that it could not assert a statutory

interest claim in Mandamus II, because it was a summary proceeding. It further

argued that statutory interest cannot be recovered in a mandamus proceeding

brought pursuant to La. R.S. 38:2191(D), because it is an amount in excess of the

amount appropriated for the contract. Drennan finally asserted that ordinary

proceedings may not be cumulated with summary proceedings and that res judicata

does not apply to claims that cannot be cumulated.

On June 14, 2023, Lafitte filed a reply memorandum in support of its

summary judgment motion and res judicata exception. Lafitte argued that

Drennan’s cause of action for statutory interest raised in the Ordinary Proceeding

became barred by La. R.S. 13:4231(1), as the Mandamus II judgment extinguished

all claims arising from the same transaction or occurrence existing at that time and

did not contain a reservation of rights to preserve the claims. Lafitte further

asserted that even if Drennan could not have brought a claim for statutory interest

in the summary mandamus proceeding, it could have brought all of its claims in an

ordinary proceeding.

On June 19, 2023, the matter came for hearing on Lafitte’s peremptory

exception of res judicata, Drennan’s motion for summary judgment and Lafitte’s

cross-motion for summary judgment. The trial court took up the exception of res

judicata first. Drennan argued that it could not cumulate the Ordinary Proceeding

seeking statutory interest with the summary Mandamus II proceeding. It also

argued that it could not recover statutory interest in Mandamus II because it could

only assert a claim up to the amount of the appropriation as Lafitte asserted in its

7 exception to Mandamus I. Drennan further argued that, while attorney’s fees and

judicial interest are ancillary relief in the mandamus proceeding authorized by La.

R.S. 38:2191(D) to compel payment of sums due under the contract, the claim for

statutory interest under La. R.S. 38:2191(B) is a separate claim that cannot be

asserted in a mandamus proceeding. Drennan also argued that Lafitte objected in

Mandamus I to having all of the claims brought in one suit.

Without hearing argument on the other matters, the trial court granted

Lafitte’s peremptory exception of res judicata, found Drennan’s motion for

summary judgment moot, rendered judgment for Lafitte, and dismissed Drennan’s

Ordinary Proceeding with prejudice. The trial court indicated that it believed

Drennan should have stated all of its claims in Mandamus II. On July 10, 2023,

the trial court signed a written judgment setting forth these rulings. Drennan’s

timely appeal is now before this Court.

ASSIGNMENTS OF ERROR

On appeal, Drennan raises two assignments of error. In its first assignment

of error, Drennan asserts that the trial court’s finding of res judicata is erroneous

for three reasons: (a) the issue of statutory interest was not presented in the

pleadings, and was not litigated in Mandamus II, Case No. 812-650; (b) Lafitte

consented to litigating mandamus claims separately from statutory interest claims,

and the exceptions to res judicata set forth in La. R.S. 13:4232 apply; and (c) res

judicata does not apply to claims that may not be cumulated in the same

proceeding.9 In its second assignment of error, Drennan asks this Court to address

the merits of its Motion for Summary Judgment, which the trial court found to be

moot in light of its ruling on the res judicata exception.

9 La. C.C.P. art. 462 specifies the conditions under which a plaintiff may cumulate two or more actions against the same defendant, even though they are based on different grounds. One of those conditions is that all of the actions “employ the same form of procedure.” Art. 462(2).

8 Lafitte responds that Drennan’s claims made in the Ordinary Proceeding are

barred by the doctrine of res judicata because Drennan should have brought its

claim for statutory interest in Mandamus II, Case No. 812-650, and the trial court’s

Judgment in Mandamus II bars Drennan’s claims in the present matter.10

LAW AND ANALYSIS

In the present matter, the trial court granted the exception of res judicata

based on its determination that Drennan was required to abandon its statutory

interest claims asserted in the Ordinary Proceeding and include them in the

Mandamus II proceeding. Thus, the seminal question in this appeal is, having

chosen to avail itself of the mandamus procedure set forth in La. R.S. 38:2191(D),

must a contractor, such as Drennan, include all claims for statutory interest it

alleges are owed by the public entity in that same mandamus action. The answer to

this question involves the interplay between La. R.S. 38:2191 of the Public Works

Act, and the principles of res judicata set forth in La. R.S. 13:4231 and exceptions

to the general rule of res judicata in La. R.S. 13:4232.

Res judicata is designed to promote judicial efficiency and final resolution

of disputes, and generally precludes the re-litigation of claims arising out of the

same facts and circumstances between the same parties of a previous suit in which

there is a valid, final judgment. Terrebonne Fuel & Lube, Inc. v. Placid Refining

Co., 95-654 (La. 1/16/96), 666 So.2d 624. An exception of res judicata to

determine the preclusive effect of a prior judgment presents a question of law and

is reviewed de novo. Roy Anderson Corp. v. 225 Baronne Complex, L.L.C., 18-962

(La. App. 4 Cir. 9/25/19), 280 So.3d 730, 737. Thus, the standard of review of an

exception of res judicata requires an appellate court to determine if the trial court’s

10 Lafitte also argued in its summary judgment motion, and argues now on appeal, that Drennan failed to meet the conditions under the contract to preserve its statutory interest claims. However, as discussed more fully below, just as with Drennan’s summary judgment motion, we decline to address this issue in the first instance.

9 decision is legally correct. Id. The party pleading the exception of res judicata has

the burden of proving its elements by a preponderance of the evidence. 5301

Jefferson Hwy, LLC v. A. Maloney Moving & Storage, Inc., 23-211 (La. App. 5 Cir.

5/29/24), 392 So.3d 337, 347. The doctrine is stricti juris; therefore, any doubt as

to whether res judicata applies must be resolved against its application. Id.

The doctrine of res judicata is codified in Louisiana in La. R.S. 13:4231 as

follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Pursuant to La. R.S. 13:4231, a second action is precluded when all of the

following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the

parties are the same; (4) the cause or causes of action asserted in the second suit

existed at the time of final judgment in the first litigation; and (5) the cause or

causes of action asserted in the second suit arose out of the transaction or

occurrence that was the subject matter of the first litigation. Burguieres v.

Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, 1053.

Ordinarily, a second action is barred because it arises out of the same

transaction or occurrence as the prior action. Avery v. CitiMortgage, Inc., 08-2052

10 (La. App. 1 Cir. 5/13/09), 15 So.3d 240, 242; see also La. C.C.P. art. 425(A).11

This provides judicial economy and fairness because the plaintiff must seek all

relief and assert all rights arising from the same transaction or occurrence in the

first action. Avery, 15 So.3d at 242. “[I]t would not matter whether the cause of

action asserted in the second action was the same as that asserted in the first or

different as long as it arose out of the transaction or occurrence that was the subject

matter of the first action.” Comment (a) of the 1990 Official Revision Comments

to La. R.S. 13:4231. Thus, res judicata used in the broad sense has two different

aspects: a) foreclosure of relitigating matters that have never been litigated but

should have been advanced in the earlier suit; and b) foreclosure of relitigating

matters that have been previously litigated and decided. Henkelmann v. Whiskey

Island Preserve, LLC, 13-180 (La. App. 1 Cir. 5/15/14), 145 So.3d 465, 470.

However, there are exceptions to this broad application codified in La. R.S.

13:4232(A), including when exceptional circumstances justify relief from the res

judicata effect of the judgment:

A judgment does not bar another action by the plaintiff: (1) When exceptional circumstances justify relief from the res judicata effect of the judgment;

(2) When the judgment dismissed the first action without prejudice; or,

(3) When the judgment reserved the right of the plaintiff to bring another action. (Emphasis added.)

Under this provision, the court has the authority to exercise its discretion to

balance the principle of res judicata with the interests of justice, although clearly

“this discretion must be exercised on a case-by-case basis and such relief should be

granted only in truly exceptional cases....” Woodlands Development, L.L.C. v.

11 La. C.C.P. art. 425 provides that a “party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” In Carcello v. Dept. of Transportation and Development, 21-1670 (La. 9/1/22), 346 So.3d 751, 763, the Louisiana Supreme Court clarified that Article 425 is not an independent preclusion provision; rather, it is enforced through an exception of res judicata and all res judicata elements “must be satisfied for preclusion to operate.”

11 Regions Bank, 16-324 (La. App. 5 Cir. 12/21/16), 209 So.3d 335, 341. The

exceptional circumstances exception generally applies to complex procedural

situations in which litigants are deprived of the opportunity to present their claims

due to unanticipated quirks in the system, to factual situations that could not be

anticipated by the parties, or to decisions that are totally beyond the control of the

parties. Oleszkowicz v. Exxon Mobil Corp., 14-256 (La. 12/9/14), 156 So.3d 645,

648.

When considering the meaning of the term “exceptional circumstances” in

La. R.S. 13:4232(A)(1), the Louisiana Supreme Court, first in Terrebonne Fuel &

Lube, Inc., supra, and then, more pointedly in Oliver v. Orleans Parish School Bd.,

14-329 (La. 10/31/14), 156 So.3d 596, 611-19, cert. denied, 575 U.S. 1009, 135

S.Ct. 2315, 191 L.Ed.2d 979 (2015), directs us to the Restatement (Second) of

Judgments, § 26 (1982) as a basis for the analysis. In Terrebonne Fuel, 666 So.2d

at 632, the Louisiana Supreme Court cited the following examples of exceptional

circumstances found in § 26(1) of the Restatement (Second) of Judgment: (a)

where the parties have agreed that the plaintiff may split his claim, or the defendant

has acquiesced therein; (b) the court in the first action has expressly reserved the

plaintiff’s right to maintain the second action; (c) there are restrictions on the

subject matter jurisdiction of the courts; (d) the judgment in the first action was

plainly inconsistent with the fair and equitable implementation of a statutory or

constitutional scheme, or it is the sense of the scheme that the plaintiff should be

permitted to split his claim; (e) for policy reasons; or (f) it is clearly and

convincingly shown that the policies favoring preclusion of a second action are

overcome for extraordinary reasons.

Drennan argues that res judicata cannot apply to preclude its statutory

interest claims because it could not bring its mandamus claims and statutory

interest claims in the same proceeding. Drennan argued before the trial court that

12 La. R.S. 38:2191(D) limits the use of a summary mandamus proceeding to the

amount of the appropriation by the public entity for the award and execution of the

contract. Drennan claimed that because Lafitte had not appropriated any amounts

for the $153,993.87 in statutory interest it sought to recover, La. R.S. 38:2191(D)

required it to pursue these claims in a separate ordinary proceeding. Drennan

further argued that Section 2191(D) does not require a contractor to pursue all

claims in a single proceeding.

Based on these arguments, the issue before this Court is whether the

statutory scheme set forth in La. R.S. 38:2191 required Drennan to split its claims.

Louisiana courts have applied the statutory scheme exception as an exceptional

circumstance warranting relief from the res judicata effect of a judgment. See Roy

Anderson Corp., supra; Avery, supra. Accordingly, we first address Drennan’s

argument that the doctrine of res judicata should not apply because it could not

litigate its statutory interest claims pending in the Ordinary Proceeding as part of

the summary Mandamus II proceeding.

Scope of Mandamus Proceeding Authorized Under La. R.S. 38:2191(D)

In order to properly analyze these issues, we must first examine the plain

language of La. R.S. 38:2191(D) to determine the scope of the mandamus

procedure that the legislature authorized when it enacted this provision in 2011.

This will allow us to determine whether Drennan could, or should have, litigated

its claims for statutory interest claims as part of the Mandamus II proceedings.

As always, courts begin their analysis by looking at all relevant legislation as

legislation is superior to any other source of law. Martin v. Thomas, 21-1490 (La.

6/29/22), 346 So.3d 238, 242. The well-established rules of statutory construction

provide that the interpretation of any statutory provision starts with the language of

the statute itself. In Re Succession of Faget, 10-188 (La. 11/30/10), 53 So.3d 414,

419; Wallace C. Drennan, Inc. v. St. Charles Parish, 16-177 (La. App. 5 Cir.

13 9/22/16), 202 So.3d 535, 543. Legislation is a solemn expression of legislative

will. La. C.C. art. 2. When the provision is clear and unambiguous and its

application does not lead to absurd consequences, its language must be given

effect, and its provisions must be construed so as to give effect to the purpose

indicated by a fair interpretation of the language used. La. C.C. art. 9; La. R.S.

1:4; Drennan, 202 So.3d at 543. When the language of the law is susceptible of

different meanings, it must be interpreted as having the meaning that best conforms

to the purpose of the law. La. C.C. art. 10.

La. R.S. 38:2191 governs payments under public contracts and Section D

contains a provision that allows contractors to obtain immediate payment by means

of a limited mandamus proceeding:

A. All public entities shall promptly pay all obligations including change orders, 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 and 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.

(2) Any interest received by the contractor pursuant to Paragraph (1) of this Subsection, shall be disbursed on a prorated basis among the contractor and subcontractors, each receiving a prorated portion based on the principal amount due within ten business days of receipt of the interest.

C. The provisions of this 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

14 amount of the appropriation made for the award and execution of the contract, including any authorized change orders. (Emphasis added.)

La. R.S. 38:2191 allows contractors to pursue payment from public entities

by means of an ordinary proceeding. But Section 2191(D) also allows for a

summary mandamus procedure to compel payments up to the amount of the

appropriation made for the public contract. La. R.S. 38:2191 expressly

contemplates the possibility of both ordinary and summary mandamus

proceedings, as well as more than one mandamus or ordinary proceeding during

the course of public contract performance. See St. Bernard Port, Harbor &

Terminal Dist. v. Guy Hopkins Constr. Co., 16-907 (La. App. 4 Cir. 4/5/17), 220

So.3d 6, 16, writ denied, 17-746 (La. 9/15/17), 225 So.3d 1088. Pursuant to La.

R.S. 38:2191(A), all contracting public entities “shall” pay all obligations,

progressive stage payments, and final payments when they become due and

payable under the contract. Therefore, the contractor may file multiple ordinary or

mandamus actions for multiple tardy progressive stage payments and may bring

multiple demands for attorney’s fees and statutory interest for each of those tardy

progressive stage, final or change order payments. The passage of La. R.S.

38:2191(D) added the contractor’s right of action in mandamus for late payments,

but did not derogate from the contractor’s already existing right of action for

breach of contract and damages.

When determining the scope of a mandamus proceeding that the legislature

authorized under La. R.S. 38:2191(D), it is important to understand the reason the

legislature added the mandamus proceeding in 2011. It provides a summary

mechanism that allows contractors to quickly compel a public entity to pay

appropriated sums due under the contract. “Section (D) provides for the efficient

facilitation of forcing public entities to promptly render monies owed under public

contracts, in support of the statute’s stated purpose, by stating that a writ of

15 mandamus may issue where funds have been appropriated for an underlying public

works contract.” St. Bernard Port, 220 So.3d at 13. An ordinary proceeding may

require years of litigation to obtain a money judgment that the public entity is not

required to immediately pay.

The plain language of Section 2191(D) provides a remedy for contractors

awaiting payment from public entities where the funds have already been

appropriated; therefore, the use of the summary mandamus procedure is limited to

the amount of the appropriation. Id. If the legislature had intended to grant

contractors the right to compel payment in excess of the appropriated amount in

every instance, the legislature could have easily included language in Section

2191(D) permitting contractors to recover statutory interest as a matter of course in

every mandamus proceeding brought under that provision.12 But it did not include

language to this effect. Instead, the legislature included plain and clear language

limiting the mandamus against the public entity to one compelling “the payment of

sums due under the contract up to the amount of the appropriation.”

It is highly unlikely that a public entity would appropriate additional funds

to cover awards for statutory interest, which can be substantial, prior to a

contractor’s decision to pursue a mandamus proceeding. By limiting the

mandamus to the amount due and appropriated by the public entity, the legislature

signaled its intent to limit the scope of the courts’ authority to compel payment.

The act of appropriation of funds is discretionary and specifically granted to the

12 For example, in La. R.S. 44:35, the Public Records Act allows a party to recover attorney fees as part of mandamus proceeding to compel the right inspect or receive a copy of a public record:

A. Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located. (Emphasis added.)

16 legislature by the constitution. Par. of St. Charles v. R.H. Creager, Inc., 10-180

(La. App. 5 Cir. 12/14/10), 55 So.3d 884, 888, writ denied, 11-118 (La. 4/1/11), 60

So.3d 1250. La. Const. art. 12, § 10(C) and La. R.S. 13:5109(B)(2) generally

require an appropriation of funds by the legislature or the political subdivision

against which a judgment was rendered to make a judgment payable.13 Jazz

Casino Company, L.L.C. v. Bridges, 16-1663 (La. 5/3/17), 223 So.3d 488, 495.

In Foster Const., Inc. v. Town of Richwood, 48,171 (La. App. 2 Cir. 6/26/13),

117 So.3d 607, 610, the appellate court recognized that La. R.S. 38:2191(D) does

not permit a mandamus to compel payments of amounts that have not been

appropriated:

Notably, La. R.S. 38:2191(D) allows for mandamus where there has been an appropriation for the award and execution of the contract. It does not authorize mandamus to compel an appropriation for payment of sums due under a contract. Such authorization would be contrary to La. Const. art. 12, § 10(C), which prohibits the seizure of public property or public funds.

Accordingly, courts cannot compel immediate payment from a public entity

by means of mandamus unless the amount has been appropriated, or when the

legislature has specifically authorized mandamus authority beyond the

appropriated amount. See Jazz Casino, 223 So.3d at 496-97; see also Town of

Sterlington v. Greater Ouachita Water Company, 52,482 (La. App. 2 Cir. 4/10/19),

268 So.3d 1257, 1265-1270, writ denied, 19-913 (La. 9/24/19), 279 So.3d 386

(concluding that the trial court lacked authority to issue a writ of mandamus to

13 La. Const. art. XII, § 10(C) provides in pertinent part: “No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.”

La. R.S. 13:5109(B)(2) similarly provides:

Any judgment rendered in any suit filed against the state, a state agency, or a political subdivision, or any compromise reached in favor of the plaintiff or plaintiffs in any such suit shall be exigible, payable, and paid only out of funds appropriated for that purpose by the legislature, if the suit was filed against the state or a state agency, or out of funds appropriated for that purpose by the named political subdivision, if the suit was filed against a political subdivision.

17 compel the city to pay an award of attorney fees and court costs to a water utility,

because constitutional provisions and applicable laws only allowed courts to

compel payments of judgments against political subdivisions from funds

specifically appropriated.)

Thus, under La. R.S. 38:2191(D), courts do not have the authority to compel

a public entity to pay any amounts in excess of (1) the sum due under the contract

and (2) the amount appropriated by the public entity. It is conceivable though that

a statutory interest claim could be brought in a Section 2191(D) mandamus

proceeding if the public entity appropriated an amount that would cover the

statutory interest. However, based on the record before this Court, the very narrow

scenario described above clearly does not exist in this case as there is no evidence

that Lafitte appropriated any additional amounts to cover an award for statutory

interest.14 In fact, Lafitte objected to the statutory interest claims brought in

Mandamus I because the Jefferson Parish Council had not appropriated any funds

for such a recovery. In its exception, Lafitte argued that Drennan sought to recover

approximately $275,000 above the appropriated amount, which included alleged

amounts due on the pay applications, as well as statutory interest. Also, the

amount of statutory interest Drennan sought to recover in its subsequent petition

filed in the Ordinary Proceeding exceeded $150,000, which is also more than the

additional appropriated amount it asked the trial court to compel in Mandamus II.

We recognize that in St. Bernard Port v. Hopkins, supra, and Quality Design

v. Gonzalez, 13-752 (La. App. 1 Cir. 3/11/14), 146 So.3d 567, decided in 2017 and

14 We also acknowledge that in some instances, a public entity may agree to litigate statutory interest claims in a mandamus proceeding. See. e.g. Wallace C. Drennan, Inc. v. Cantrell, 23-193 (La. App. 4 Cir. 10/25/23), 376 So.3d 969, 975, as amended on rehearing (12/7/23)(the opinion does not indicate whether any amounts were appropriated for statutory interest, but simply states that the “parties do not dispute that a writ of mandamus was the appropriate method to obtain interest for alleged untimely payments.”). Further, if a contractor includes claims for unappropriated amounts in a Section 2191(D) mandamus proceeding, and the public entity does not object by raising a dilatory exception of unauthorized use of summary proceeding or improper cumulation of actions, then according to La. C.C.P. art. 926(B), the objection would be waived.

18 2014 respectively, the Fourth and First Circuits each found that an award of

judicial interest pursuant to La. C.C.P. art. 1921 was within the scope of what the

public entity could be compelled to pay in a mandamus proceeding pursuant to La.

R.S. 38:2191(D), without considering whether these amounts exceeded the

appropriated amounts.15 Further, in reaching this decision, both of these cases

relied on an unpublished opinion, C.R. Humphreys General Contractor, Inc. v.

Tangipahoa Parish School System, 07-993 (La. App. 1 Cir. 12/21/07), 2007 WL

4480064. The Humphreys case did not involve a mandamus proceeding or a claim

for statutory interest, and was decided well before the legislature enacted the

Section 2191(D) mandamus proceeding. Accordingly, these cases are not

persuasive.

The vast remainder of the cases discussing the scope of the mandamus

provision under Section 2191(D), address whether a public entity’s reconventional

demand for liquidated damages and/or setoffs allowed under the contract must be

litigated in the mandamus proceeding to determine the amount of payable under

the contract. See, i.e., Law Industries, LLC v. Board of Supervisors of Louisiana

State University, 18-1756 (La. App. 1 Cir. 3/2/20), 300 So.3d 21, writ denied, 20-

745 (La. 10/6/20), 302 So.3d 515; Woodrow Wilson Construction, LLC v. Orleans

Parish School Board, 17-936 (La. App. 4 Cir. 4/18/18), 245 So.3d 1, writ denied,

18-971 (La. 10/8/18), 253 So.3d 793. These cases involve situations where the

public entity seeks to reduce the amount payable to the contractor pursuant to the

terms of the contract. Therefore, they do not provide guidance for the present

matter which involves the recovery of sums for statutory interest in excess of the

amount appropriated by the public entity.

15 These cases were decided before the legislature enacted the provisions in Section 2191(B) allowing for recovery of statutory interest in 2018.

19 Rather, the plain language of La. R.S. 38:2191(D) ‒ limiting a mandamus

proceeding to sums due under the contract and the appropriated amount ‒

prohibited Drennan from seeking a judgment of mandamus to compel Lafitte to

pay statutory interest in Mandamus II. Accordingly, Drennan could file multiple

mandamus actions for amounts due and appropriated and a separate ordinary

action for statutory interest for each alleged tardy progressive stage payment and

final amount due. Accordingly, we conclude that while a statutory interest claim is

not prohibited in a mandamus proceeding in every instance, for all practical

purposes, it is unlikely that the appropriated amount would ever include such sums.

Section 2191(D) was enacted to grant contractors a mechanism to quickly recover

funds due under the construction contract up to the amount of the appropriation.

We are bound by the plain language of the statute. If the legislature had intended

to allow the recovery of statutory interest in excess of the appropriated amount, it

could have included language to that effect.16

Res Judicata

Having determined that under the facts of this case, Drennan was not

required or authorized under La. R.S. 38:2191(D) to raise its statutory interest

claims as part of the proceedings in Mandamus II, we now turn to the issue of

whether the trial court erred by granting Lafitte’s exception of res judicata. We

recognize that the judgment rendered in Mandamus II technically fulfills the res

judicata requirements – that is (1) the judgment is valid; (2) the judgment is final;

(3) the parties are the same; (4) the cause or causes of action asserted in the

Ordinary Proceeding existed at the time of final judgment in Mandamus II; and (5)

the cause or causes of action asserted in the second suit arose out of the transaction

16 We recognize that in this case and in other cases, courts have awarded amounts for attorney’s fees and judicial interest in excess of or potentially in excess of appropriated amounts. However, as explained above, if the public entity does not object to the cumulation of claims, the issue would be waived. See La. C.C.P. art. 926(B).

20 or occurrence that was the subject matter of the first litigation. But considering

the unique statutory scheme set forth in La. R.S. 38:2191, we agree that

exceptional circumstances exist to bar any res judicata effect of the judgment

rendered in Mandamus II.

To support its argument that the doctrine of res judicata should not apply

due to exceptional circumstances, Drennan relies primarily upon the Fourth

Circuit’s application of the statutory scheme exception in Roy Anderson Corp.,

supra. In that case, the appellate court found that “exceptional circumstances”

existed with respect to the statutory scheme of the Private Works Act, La. R.S.

9:4801, et seq., which precluded the trial court’s finding that the judgment in a first

filed mandamus proceeding was res judicata as to the later filed ordinary

proceeding arising out of the same private works contract. Roy Anderson Corp.,

280 So.3d at 737-40. The Private Works Act generally protects the rights of

contractors performing work on immovable property in the private market by

allowing contractors to file liens on the property. However, it also provides

mandamus relief to private property owners to obtain the speedy removal of an

unjustified contractor’s lien against the property. See La. R.S. 9:4833.

The property owner in Roy Anderson first brought a mandamus proceeding

against the general contractor for removal of a contractor’s lien and for damages.17

The trial court ordered the lien’s removal. In the first appeal, the Fourth Circuit

reversed and ordered reinstatement of the lien. 225 Baronne Complex, LLC v. Roy

Anderson Corp., 16-492 (La. App. 4 Cir. 12/14/16), 2016 WL 7238975, writ

denied, 17-326 (La. 4/7/17), 218 So.3d 116. Thereafter, the contractor filed a

petition to enforce the lien in an ordinary proceeding. The property owner

answered and filed a reconventional demand, supplemented several times,

17 In the mandamus proceeding, the property owner sought to recover damages related to the contractor’s failure to cancel the lien, pursuant to La. R.S. 9:4833 of the Private Works Act, but not any other damages. Roy Anderson Corp., 280 So.3d at 734, 737, 739.

21 asserting breach of contract and other damages claims against the contractor. In

response, the contractor filed exceptions, including an exception of res judicata.

The trial court granted the contractor’s exception of res judicata, finding that the

property owner should have brought the damage claims asserted in its

reconventional demand within the prior summary mandamus proceeding to remove

the lien.

On a second appeal, the Fourth Circuit reversed the judgment insofar as it

granted the exception of res judicata, finding that the case qualified for the

application of the exceptional circumstances exception codified in La. R.S.

13:4232. Roy Anderson Corp., 280 So.3d at 738-40. The appellate court explained

that the exceptional circumstances exception “generally applies to complex

procedural situations in which litigants are deprived of the opportunity to present

their claims due to unanticipated quirks in the system, to factual situations that

could not be anticipated by the parties, or to decisions that are totally beyond the

control of the parties.” Id. at 738. The court, relying upon the Restatement

(Second) of Judgments, § 26(d), found that the situation before it fell squarely

within the Restatement’s “statutory-scheme exception” to the res judicata principle

against claim splitting. Specifically, the court found the fourth exception recited in

Section 26(1)(d) of the Restatement, applied—“the judgment in the first action was

plainly inconsistent with the fair and equitable implementation of a statutory or

constitutional scheme”—where the purpose of the statutory scheme was to afford

the party a fast-track, mandamus procedure to obtain relief, and therefore, the

property owner was not precluded by the res judicata doctrine from pursuing a

damage claim against the contractor subsequently to the mandamus judgment. Id.

at 738.

The Fourth Circuit further observed that Comment (e) to the Restatement

explained that the statutory scheme exception is implemented when “‘it may

22 appear from a consideration of the entire statutory scheme that litigation, which on

ordinary analysis might be considered objectionable as repetitive, is here intended

to be permitted.” Id. Comment (e) also references the following illustration as an

example of the implementation of the statutory scheme:

For nonpayment of rent, landlord A brings a summary action to dispossess tenant B from leased premises. A succeeds in the action. A then brings an action for payment of the past due rent. The action is not precluded if, for example, the statutory system discloses a purpose to give the landlord a choice between, on the one hand, an action with expedited procedure to reclaim possession which does not preclude and may be followed by a regular action for rent, and, on the other hand, a regular action combining the two demands.

The Fourth Circuit pointed out that in Roy Anderson, by analogy, the

purpose of the Private Works Act’s statutory scheme is to afford a property owner a

fast-track, mandamus procedure to obtain removal of a clearly unjustified lien,

coupled with a right to attorney’s fees and damages in certain circumstances. Id. at

738-39. The court found that the fact that an owner can—and in that case did—file

a damage claim in the summary mandamus proceeding was not outcome

determinative of the res judicata issue. Rather, the dispositive issue was whether,

considering the sense of the entire Private Works Act’s statutory scheme, an owner

should be allowed to split its claim. Pointing out that a summary mandamus

proceeding under the Private Works Act does not toll the period for filing a petition

to enforce the lien, and a summary mandamus proceeding is separate and distinct

from an ordinary action to enforce a lien, the Fourth Circuit there answered the

question in the affirmative. Id. at 738-40.

Further, in Avery v. CitiMortgage, Inc., supra, the plaintiff filed suit against

CitiMortage, Inc. alleging that in 2001, the United States Department of Veteran

Affairs determined that he was an incompetent beneficiary and appointed a bank to

serve as the curator of his monthly veterans’ compensation benefit, including the

payment of his monthly mortgage to CitiMortgage. Plaintiff claimed that

23 CitiMortgage failed to properly credit those payments to his account resulting in

the seizure and sale of his home by means of an executory process proceeding.

Plaintiff sought the return of his residence through the annulment of the executory

process proceeding. He also sought damages from CitiMortgage due to its

improper crediting of payments and for unjust enrichment for any funds it retained

that belonged to the plaintiff. In response to the lawsuit, CitiMortgage filed an

exception of res judicata and no cause of action, which the trial court sustained.

On appeal, the First Circuit found that res judicata barred the plaintiff's

claim seeking to nullify the executory process proceeding. Avery, 15 So.3d at 244.

However, as to the plaintiff’s claims for damages and unjust enrichment arising

from the failure to properly credit payments, the appellate court determined that

pursuant to La. R.S. 13:4231(A)(1), exceptional circumstances justified relief from

the res judicata effect of the executory-process judgment. Id. The appellate court

recognized that the plaintiff was procedurally prohibited from bringing his ordinary

negligence action in the summary executory proceeding. Id. The court found that

“[t]he complicated procedural posture of the [executory proceeding and the

ordinary proceeding] in relation to each other and the unsettled nature of the law

constitute exceptional circumstances justifying relief from the effect of the doctrine

[of res judicata ] as to the claim for damages.” Id. Therefore, the appellate court

reversed the trial court’s judgment granting the exception of res judicata as to the

damage claims that could only be brought in the ordinary proceeding.

In the instant matter, La. R.S. 38:2191(D) provided Drennan the right to

proceed against Lafitte by means of an expedited summary mandamus proceeding

to collect sums due under the contract up to the amount of the appropriation made

for the award and execution of the contract, including change orders. Further, La.

R.S. 38:2191 expressly contemplates the possibility of both ordinary and

mandamus proceedings during the course of performance of a public works

24 contract. St. Bernard Port, 220 So.3d at 15; Quality Design, 146 So.3d at 572.

We conclude, as did the court in Roy Anderson Corp., supra, that the exceptional

circumstances exception, codified in La. R.S. 13:4232(A)(1), applies here. Guided

more specifically by the “statutory scheme exception” set forth in the Restatement

(Second) of Judgments (1982), § 26(1)(d), we find that Drennan is not barred from

proceeding with its Ordinary Proceeding by the res judicata effect of the judgment

rendered in Mandamus II on February 26, 2021. Based on the plain language of

La. R.S. 38:2191 and the circumstances at issue in this case, we find that Drennan

was not required to include its statutory interest claims in Mandamus II, because

the amount appropriated for the award and execution of the contract did not

include sums to cover statutory interest. We further agree that despite the trial

court’s discussion of the statutory interest claims in its reasons for judgment in

Mandamus II, the statutory interest claims were not litigated in that proceeding.18

Accordingly, the trial court’s judgment granting the exception of res judicata is

reversed.

Motion for Summary Judgment

In its second assignment of error, Drennan asks this Court to render a

judgment on the merits of its Motion for Summary Judgment seeking an award of

statutory interest on late payments. The trial court did not address the merits of

that motion, finding it to be moot in light of the court’s ruling on the res judicata

exception. Because the motion has not been ruled on by the trial court, we decline

to consider it in the first instance. See Kerner I, 348 So.3d at 201.

18 Lafitte argues that the trial court ruled on the statutory interest claims in its reasons for judgment provided in connection with the judgment in Mandamus II. However, it is a “‘well-settled rule that the district court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment.’” Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 07-1335 (La. 4/18/08), 980 So.2d 654, 671). Written reasons for judgment are considered to be interlocutory rulings and do not carry the finality of a judgment. Taylor v. Brandner, 05-970 (La. App. 5 Cir. 4/25/06), 928 So.2d 751, 755, writ denied, 06-1571 (La. 9/29/06), 937 So.3d 869.

25 CONCLUSION

We find that the trial court erred in its July 10, 2023 judgment sustaining

Lafitte’s exception of res judicata; therefore, we reverse the judgment of the trial

court and overrule Lafitte’s exception of res judicata. Further, we decline to

address the merits of Drennan’s Motion for Summary Judgment and remand this

matter to the trial court to address outstanding motions and for further proceedings

consistent with this opinion.

REVERSED; REMANDED

26 WALLACE C. DRENNAN, INC. NO. 23-CA-428

TIMOTHY P. KERNER, IN HIS COURT OF APPEAL CAPACITY AS MAYOR OF THE TOWN OF LAFITTE AND THE TOWN OF LAFITTE STATE OF LOUISIANA

WICKER, J., CONCURS WITH REASONS

I agree with the majority’s conclusion that the trial court erred in its July 10,

2023 judgment sustaining Lafitte’s exception of res judicata, and its decisions to

reverse that judgment and to decline to address the merits of Drennan’s Motion for

Summary Judgment. However, I disagree in part with the majority’s analysis as to

the scope of the contractor’s right to pursue a La. R.S. 38:2191(D) mandamus

proceeding with regard to Section 2191(B) statutory interest. While the majority

would limit Section 2191(D) mandamus proceedings for Section 2191(B) attorney

fees and statutory interest to those cases in which adequate funds have been

specifically appropriated to cover the specific Section 2191(B) claims in question,

in my opinion, as discussed in detail below, the contractor in a public works

contract may choose to proceed against a tardy public entity for Section 2191(B)

statutory interest or attorney fees either as a part of a La. R.S. 38:2191(D)

mandamus proceeding or via ordinary process, without regard to whether funds

have been specifically appropriated to cover the payment of the Section 2191(B)

attorney fees or statutory interest sought.

In my opinion, Drennan was not, in fact, precluded from pursuing its

statutory interest claim via a Section 2191(D) mandamus proceeding; rather, it also

maintained its right, alternatively, to proceed via ordinary process in its claim for

1 statutory interest, particularly during the period before additional funds to cover

change orders had been appropriated.

In my opinion, the statutory scheme presented by La. R.S. 38:2191 of the

Public Works Act falls squarely within the La. R.S.13:4232(A)(1) “exceptional

circumstances” exception to the doctrine of res judicata codified in La. R.S.

13:4231 when viewed through the lens of the Restatement (Second) of Judgments

§26 (1982), as instructed by the Louisiana Supreme Court in Terrebonne Fuel &

Lube, Inc. v. Placid Refining Co., 95-654, 95-671 (La. 1/16/96), 666 So.2d 624 and

Oliver v. Orleans Parish School Board, 14-329, 14-330 (La. 10/31/14), 156 So.3d

596, cert. denied, 575 U.S. 1009, 135 S.Ct. 2315, L.Ed.2d 979 (2015). In my

opinion, the Restatement of Judgments’ “statutory-scheme exception” to the res

judicata principle applies here, as the general rule against claim-splitting would be

plainly inconsistent with the fair and equitable implementation of the Public Works

Act’s statutory scheme itself.

Further, the contractor’s La. R.S. 38:2191(B)(1) statutory interest claim is in

essence a sanction against the public entity for failing to timely pay progressive

stage or final contract payments and is, therefore, ancillary to or a part of the

contract payments themselves. La. R.S. 38:2191(C) provides, “[t]he provisions of

this Section shall not be subject to waiver by contract.” The La. R.S. 38:2191(B)

provision for attorney fees and statutory interest are, therefore, a statutorily

required, implied provision of every public works contract. La. R.S. 38:2191(D)

clearly contemplates the mandamus process for late payment of contract funds,

including those payable by change order, once the contract funds themselves have

been appropriated. Therefore, the statutory scheme, in my opinion, clearly

contemplates mandamus actions for sanctions such as statutory interest for late

payments of those same contract funds, once the contract funds themselves have

2 been appropriated, whether or not funds to pay attendant statutory interest claims

on those same tardy contract payments have been specifically and separately

appropriated.

Turning to La. R.S. 38:2191(D)’s “appropriation” requirement, while the

majority takes a narrow view of the term “appropriated” within the context of La.

R.S. 38:2191(D), requiring a separate specific appropriation for “statutory

interest,” this narrow interpretation is inconsistent with both the statute’s history of

amendments as well as with much of the jurisprudence addressing the breadth of

La. R.S. 38:2191 both generally and specifically as to the breadth of the La. R.S.

38:2191(D) mandamus action and of its term “appropriated”. The purpose of La.

R.S. 38:2191, as originally enacted in 1972 and amended thereafter in 1991, 2011,

2014, 2018 and 2021, is to ensure the prompt payment of obligations arising under

public contracts as such obligations become due and payable. Law Industries, LLC

v. Board of Supervisors of Louisiana State University, 18-1756 (La. App. 1 Cir.

3/2/20), 300 So.3d 21, 30, writ denied, 20-745 (La. 10/6/20), 302 So.3d 515. On

each of the occasions on which the Louisiana Legislature has amended La. R.S.

38:2191, it has expanded its breadth.

In 2011, the Legislature amended the statute to expressly provide that

contractors may use mandamus proceedings to collect from the public entity

unpaid contract amounts that had been appropriated. In 2014, the Legislature

amended the statute to explicitly state that the right to mandamus includes

authorized change orders. The statute was amended again in 2018 to provide for

the payment of statutory interest upon the public entity’s unreasonable failure to

timely pay obligations due under the public works contract and to direct that such

interest is to be disbursed on a prorated basis among the contractor and

subcontractors.

3 The general law as to mandamus, codified in La. C.C.P. art. 3862, limits

mandamus, as an extraordinary remedy, to circumstances in which the acts of the

public official are purely ministerial and where ordinary means fail to afford relief.

However, as discussed in Law Industries, supra, “[b]ecause the legislature has

statutorily provided for a writ of mandamus as a remedy under La. R.S. 38:2191,

the general rules for mandamus proceedings do not apply; therefore, the petitioner

is not required to show that relief is not available by ordinary means or that the

delay involved in obtaining ordinary relief may cause injustice, as required by La.

C.C.P. art. 3862.” Id. at 30, citing Jazz Casino Company, L.L.C. v. Bridges, 16-

1663 (La. 5/3/17), 223 So.3d 488, 496-497. See also Wallace C. Drennan, Inc. v

St. Charles Parish, 14-89 (La. App. 5 Cir. 8/28/14), 164 So.3d 186, 190.

In Law Industries, supra, the Louisiana First Circuit Court of Appeal

provides some guidance on this issue. The Court resolved a similar question of

whether a claim for liquidated damages could be brought in a mandamus

proceeding. The Court in that case answered in the affirmative, finding, “[i]f the

plaintiff elects to use a mandamus proceeding, the trial court must determine in a

summary proceeding, what sum is owed under the parties’ contract, including the

amount of liquidated damages . . . .” Law Industries, 300 So.3d at 30.

In Law Industries, the contractor performing work on the LSU Beach

Volleyball Team locker room filed a mandamus proceeding, seeking payment of

the $29,000.00 outstanding contract balance, as well as attorney’s fees and

statutory interest under La. R.S. 38:2191(B). In response, LSU filed a dilatory

exception of unauthorized use of summary proceedings and an answer with

affirmative defenses, in which it argued that, because it was contractually entitled

to withhold liquidated damages due to the contractor’s dilatory contract

performance, no amount was owed. The trial court, relying upon general

4 mandamus law, dismissed the mandamus action in favor of an ordinary proceeding,

finding that, given the dispute between LSU and the contractor over liquidated

damages, payment of the outstanding contract balance did not involve a purely

ministerial duty, but rather, involved judicial resolution of issues of fact. Therefore,

the trial court found that, given its discretion in resolving the dispute, the matter

should proceed as an ordinary proceeding. Id. at 24, 28.

On appeal, the First Circuit reversed, finding first that the general rules of

mandamus did not apply because the legislature had statutorily provided for a writ

of mandamus as a remedy under La. R.S. 38:2191. Law Industries, 300 So.3d at

30. The appellate court then found that, as La. R.S. 38:2191 mandates that the

contractor may utilize a mandamus proceeding to order a public entity to pay any

sums owed under a public contract, if the contractor elects to use a mandamus

proceeding, the trial court must then determine in a summary proceeding what sum

is owed under the parties’ contract, including the amount of any liquidated

damages owed by the contractor to the public entity under the contract’s

provisions. Id. at 29-30. While the plaintiff in that case had also sought attorney’s

fees and statutory interest pursuant to La. R.S. 38:2191(B) in its mandamus

petition, the efficacy of addressing those matters through a La. R.S. 38:2191(D)

mandamus action was not specifically raised, litigated, or addressed by either the

trial or appellate court, but rather, they were simply resolved in the mandamus

proceeding without objection.

In a later case, the First Circuit reiterated its finding that, if the contractor

elects to use a mandamus proceeding, the court must determine the sum owed

under the parties’ contract, including liquidated damages claimed by the property

owner. Coast 2 Coast Construction, L.L.C. v Parish of St. Tammany, 19-1311 (La.

App. 1 Cir. 6/16/20), 306 So.3d 461, writ denied, 20-893 (La. 10/20/20), 303 So.3d

5 307. In that case, the contractor had also sought in the mandamus proceeding

attorney’s fees pursuant to La. R.S. 38:2191(B), as well as other damages, and,

again, the efficacy of seeking those sums via mandamus was not raised or

addressed by either court.

In St. Bernard Port v. Hopkins, 16-907 (La. App. 4 Cir. 4/5/17), 220 So.3d 6,

writ denied, 17-746 (La. 9/15/17), 225 So.3d 1088, and Quality Design v.

Gonzalez, 13-752 (La. App. 1 Cir. 3/11/14), 146 So.3d 567, decided in 2017 and

2014 respectively, before the 2018 amendments to La. R.S. 38:2191(B) added the

provisions for payment of statutory interest in addition to attorney’s fees for

unreasonable failure to timely pay sums owed under public contracts, the Fourth

and First Circuits each found that an award of judicial interest pursuant to La.

C.C.P. art. 1921 was within the scope of what the public entity could be compelled

to pay in a mandamus proceeding pursuant to La. R.S. 38:2191(D), and that

mandamus relief under La. R.S. 38:2191(D) is not conditioned on previously

appropriated funds remaining available for payment.

Turning specifically to the breadth of the La. R.S. 38:2191(D)

“appropriation” requirement, I agree with the interpretation given to the term by

the Fourth Circuit in St. Bernard Port, Harbor and Terminal District, supra, and

the First Circuit in Quality Design and Construction, Inc., supra, where the courts

found La. R.S. 38:2191(D)’s “appropriation” requirement contemplates

appropriations for payment of the project or contract as a whole, rather than to a

specific appropriation for one portion of the contract; further, that the section

contains no requirement that appropriated funds remain available in order to pursue

the interest claim.

Most recently, in Wallace C. Drennan, Inc. v. Cantrell, 23-193 (La. App. 4

Cir. 10/25/23), 376 So.3d 969, as amended on rehearing (12/7/23), Wallace C.

6 Drennan, Inc., the contractor on a City of New Orleans street paving contract, filed

a petition for writ of mandamus against Mayor Cantrell, other public officials and

the City of New Orleans seeking payment of statutory interest it alleged was due

and owing on a public works contract pursuant to La. R.S. 38:2191(B). Neither

party in that case disputed the propriety of seeking payment of statutory interest for

alleged unreasonably untimely contract payments through a La. R.S. 38:2191(D)

mandamus proceeding. The matter was heard by the trial court, which granted the

writ of mandamus in part and denied it in part, ruling on an invoice by invoice

basis. The appellate court, reviewing the trial court’s judgment on the merits on

appeal, again on an invoice by invoice basis, affirmed in part and reversed in part.1

Finally, I find no case in which the appellate court has found that either

statutory interest or attorney’s fees sought under La. R.S. 38:2191(B) must be

pursued through a suit in ordinary proceeding. Based on the statutory scheme set

forth in La. R.S. 38:2191 and the cases cited above, it is clear to me at this point

that statutory interest and attorney’s fees, both of which are a form of ancillary

relief provided for in La. R.S. 38:2191(B), are contemplated as being within the

scope of what the public entity can be compelled to pay in a mandamus proceeding

brought by a contractor pursuant to La. R.S. 38:2191(D) to recover progressive

stage or final contractual payments for which public funds have been appropriated.

Therefore, in my opinion, both Drennan and the majority are mistaken in their

view that Drennan was precluded from pursuing statutory interest through

Mandamus II. On the contrary, Drennan had the right to choose to pursue the

statutory interest sanction via either mandamus or ordinary process.

1 Wallace C. Drennan, Inc., the plaintiff contractor in the case under review here, was also the plaintiff contractor in Drennan v Cantrell. Here, Drennan has argued, inconsistently with the position it took in Drennan v. Cantrell, that, since La. R.S. 38:2191(B) statutory interest is not a “sum due under the contract,” Drennan could not avail itself of the La. R.S. 38:2191(D) mandamus proceeding to demand payment of statutory interest. However, the same could be said of an award of attorney fees, which Drennan sought and recovered in Mandamus II. Statutory interest is authorized in Subsection (B) of Section 2191, the same subsection that authorizes an award of attorney’s fees.

7 SUSAN M. CHEHARDY CURTIS B. PURSELL

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