author: Judge Edwin A. Lombard

text:
    ST. BERNARD PORT, HARBOR AND TERMINAL DISTRICT v. GUY HOPKINS CONSTRUCTION CO., INC. United States Fire Insurance Company and ABC Insurance Company
    NO. 2016-CA-0907
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 5, 2017

      See also 108 So.3d 874.

      Alvin J. Bordelon, Jr., BORDELON, THERIOT & ABRAMS, 429 Arlington Drive, Metairie, LA 70001 AND Regina C. Wedig, LAW OFFICES OF REGINA SCOTTO WEDIG, LLC, 308 South Bay Street; P. O. Box 185, Amite, LA 70422, AND James M. Garner, Ashley G. Coker, SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C., 909 Poy-dras Street, 28th Floor, New Orleans, LA 70112-1033, COUNSEL FOR PLAINTIFF/APPELLANT
    Scott E. Frazier, KRACHT & FRAZIER, L.L.P., 5149 Bluebonnet Boulevard, Baton Rouge, LA 70809-3076 AND Paul A. Tabary, III, TABARY & BORNE, L.L.C., 3 Courthouse Square, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards, Pro Tempore)

      . Hopkins was the lowest bidder on Phase I of a major public works renovation for the Port. Hopkins' Phase I work "consisted of the demolition and removal of existing structures in the fifty-acre Project area, the placement of ■ sand that was to be compacted, graded, and coated with a layer of base course (crushed limestone), and the installation of water/sewer and drainage pipes and certain prep work for an electrical system to be installed ■ in the second phase of the renovation." St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Const. Co., 12-0167, pp. 1-2 (La.App. 4 Cir. 1/16/13), 108 So.3d 874, 877, writ denied, 13-0705 (La. 5/17/13), 118 So.3d 380.

   Judge Edwin A. Lombard

|,The Appellant, St. Bernard Port, Harbor and Terminal District (“the Port”), seeks review of the May 28, 2016 judgment of the district court granting a writ of mandamus, under La. Rev. Stat. 38:2191(D), to the Appellee, Guy Hopkins Construction Co., Inc. (“Hopkins”), compelling the Port to pay a September 6, 2011 judgment in the amount $101,306.47, with legal interest. Additionally, on appeal, the Port filed a Peremptory Exception of No Cause of Action, which we deny. Furthermore, pursuant to our de novo review, we affirm the judgment of the district court.

Facts and Procedural History

This matter stems from a public works contract dispute between the Port and Hopkins. In August 2000, Hopkins was awarded a public works contract by the Port to complete Phase I of a major public works renovation. In 2002, the Port sued Hopkins raising breach of contract and damages claims as a result of Hopkins |2faulty performance and abandonment, as well as for incomplete work that it was forced to retain other contractors to complete. Hopkins filed a reconventional demand for monies it asserted it was owed pursuant to the contract.

The district court ultimately offset the unpaid balance it determined was due to Hopkins under the contract — $459,-081.86 — against the damages due to the Port, thereby resulting in a judgment of $101,306.47 being awarded to Hopkins. We affirmed the judgment on appeal. St. Bernard Port, 12-0167, p. 27, 108 So.3d at 889. The judgment became final after the Louisiana Supreme Court denied writs on May 17, 2013. The Port did not pay the judgment, nor did it appropriate funds to pay the judgment pursuant to La. Rev. Stat. 13:5109(B)(2).

Thereafter, in November 2013, Hopkins filed a Petition for Alternative Writ of Mandamus'wherein it asserted that after entering into a construction contract with the Port, several disputes arose during the course of the construction project with the Port and this litigation ensued. Hopkins stated that it was awarded a final contract balance of $101,306.47, with legal interest thereon from the date of judicial demand until paid. It further averred that funds for constructing the improvements were appropriated by the Port for the purpose of entering into the public works contract prior to the contract being awarded. Thus, there was no requirement, it pleaded, that another appropriation be made to pay the judgment at issue for the remaining contract balance. Hopkins further pleaded that under the Public Works Act, specifically La. Rev. Stat. 38:2131, public bodies are required to timely pay contractors. Moreover, it stated that Hopkins attempted to resolve its claim through ordinary means by filing suit and proceeding to trial, but to no avail as the Port has refused to pay the remaining contract balance.

|sThe district court denied the writ on February 12, 2014. Later, Hopkins filed a motion for new trial, which was granted. After allowing the parties to submit their arguments on briefs, the district court issued the writ of mandamus. On May 28, 2016, the district court issued a judgment granting mandamus and thereby directed the Executive Director of the St. Bernard Port, Harbor and Terminal District, Robert J. Scafidel, to pay $101,306.47, with legal interest and fees, unto Hopkins.

The Port timely filed the instant appeal raising the following assignments of error:

1.' The district court erred in granting a writ of mandamus to enforce a money judgment granted in 2011 against the Port;
2. The district court should not have applied the amendment to La. Rev. Stat. 38:2191(D) retroactively to a contract signed in 2000 and/or suit filed in 2002 in granting the writ of mandamus;
3. The district court erred in determining that La. Rev. Stat. 38:2191 is applicable to a pre-existing judgment;
4. The district court erred in finding that Hopkins satisfied the requirements for obtaining a writ of mandamus to enforce a money judgment against the Port;
5. The district court erred in determining that an appropriation had been made under La. Rev. Stat. 38:2191(D); and
6. The district court erred in including interest from the date of judicial demand in the mandamus writ.

I ¿Furthermore, prior to the submission of this matter for appeal, the Port filed a peremptory exception of no cause of action. In its exception, the Port raises the very same questions of law as raised on the merits of its appeal, principally whether Hopkins established that it is entitled to a writ of mandamus under La. Rev. Stat. 38:2191 (D), which it argues cannot be retroactively applied. In light of this commonality, it is unnecessary for this Court to separately discuss the exception. See Adams v. S. Lafourche Levee Dist., 15-0507, 15-0508, pp. 7-8 (La.App. 1 Cir. 6/27/16), 199 So.3d 20, 24. Moreover, for the reasons discussed below, we find no merit in the Port’s exception of no cause of action, which we hereby deny.

Standard of Review

In prior appeals involving the interpretation of La, Rev. Stat. 38:2191 relative to a money judgment, other circuits have noted that a de novo standard of review is applicable because “the proper interpretation of a statute is necessarily a question on law.” See Quality Design and Const., Inc. v. City of Gonzales, 13-0752, pp. 3-4 (La.App. 1 Cir. 3/11/14), 146 So.3d 567, 569-570. Additionally, a district court’s findings of fact in a mandamus proceeding are subject to a manifest error standard of review. Hess v. M & C, Inc., 14-962, p. 3 (La.App. 3 Cir. 2/11/15), 157 So.3d 1200, 1203.

Writ of Mandamus is an Attempt to Collect a Money Judgment

In its first assignment of error, the Port asserts that Hopkins’ writ of mandamus is simply an attempt to collect its money judgment, not an attempt to collect a final payment due under contract. This attempt at collection of a 1,-judgment with the seizure of public funds, it avers, is prohibited by Louisiana, Constitution Art. XII, Sect. 10 (C) and La. Rev. Stat. 13:5109(B)(2).

Based upon the foregoing, the Port maintains that Louisiana courts have consistently held that contractors are prohibited from obtaining a writ of mandamus to collect a money judgment. Hoag v. State, 04-0857 (La. 12/1/04), 889 So.2d 1019, 1024; Jones v. Traylor, 94-2520 (La. App. 4 Cir. 8/23/95), 660 So.2d 933; Landry v. City of Erath, 628 So.2d 1178 (La. App. 3 Cir. 1993); Dept. of Trans & Dev. v. Sugarland Ventures, Inc., 476 So.2d 970 (La. App. 1 Cir. 1985); Fontenot v. State, Through Dept. of Highways, 358 So.2d 981 (La. App. 1 Cir. 1978), reversed on other grounds, 355 So.2d 1324 (La. 1978). The remedy Hopkins has available, according to the Port, is to obtain a specific appropriation to pay the judgment. Mandamus is not a remedy because the Port did not appropriate funds to pay this judgment. Newman Marchive P’ship v. City of Shreveport, 07-1890 (La. 4/08/08), 979 So.2d 1262.

La. Rev. Stat. 38: 2191, entitled Payments under contract, provides:

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. 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. 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.
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 amount of the appropriation made for the award and execution of the contract, including any authorized change orders.

Hopkins pleaded, in its Petition for Alternative Writ of Mandamus, that it: sought final payment on its contract with the Port; unsuccessfully pursued relief through ordinary proceedings, and. obtained a judgment; Thus, it sought mandamus relief pursuant to La. Rev. Stat. 38:2191(D), which has its own appropriation | requirement, similar to La. Rev. Stat. 13:5109 (B)(2). While both statutes are arguably applicable, in this instance the more specific law, La. Rev. Stat. 38:2191, controls as it specifically applies to public works contracts. Smason v. Celtic Life Ins. Co., 615 So.2d 1079, 1087 (La. App. 4th Cir. 1993), writ denied, 618 So.2d 416 (La. 1993).

We find that the existence of a money judgment in this matter does not change the fact that a final payment was owed to Hopkins under a public works contract for which the Port appropriated monies. If all of the statutory requirements for La. Rev. Stat. 38: 2191 are met, which we discuss below, Hopkins’ recovery is not precluded. Thus, we find that this assignment of error is without merit.

Retroactive Application of La. Rev. Stat. 38:2191(D)

In its second assignment of error, the Port argues that La. Rev. Stat. 38:2191(D) is inapplicable to the instant matter because it was a substantive amendment made to the statute in August 2011. The Port avers that the public works contract at issue was executed in 2000 and the underlying lawsuit was filed by the Port in 2002. The 2011 amendment, it maintains, cannot therefore be retroactively applied as the statute itself does not provide for retroactive application. The Port further asserts that Section B of La. Rev. Stat. 38:2191 was also determined to be a substantive statutory amendment that could only be applied prospectively. Professional Construction Services, Inc. v. Parish of Jefferson, 562 So.2d 1184 (La. App. 5th Cir. 1990).

The Port relies upon the prohibitions contained in La. Civ. Code art. 6 and La. Rev. Stat. 1:2:

La. Civ. Code art. 6, entitled Retroactivity of Laws, states: “In the absence of contrary legislation expressions, substantive laws apply prospectively only.
| ^Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”
La. Rev. Stat. 1:2, entitled Revised Statutes not retroactive, provides: “No Section of the Revised Statutes is retroactive unless it is expressly so stated.”

We have found the aforementioned two provisions to be co-extensive, although “La. R.S. 1:2 does not distinguish between substantive, procedural and interpretive laws.” Brookewood Investments Co. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 12-1205, p. 5 (La.App. 4 Cir. 5/15/13), 116 So.3d 899, 903, unit denied, 13-1372 (La. 11/1/13), 125 So.3d 429.

As the Port notes, in Brookewood, we clarified that La. Civ Code. art. 6 sets forth a two-part inquiry for determining whether a law can be applied retroactively:

First, we must ascertain whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends unless the enactment impairs contractual obligations or vested rights. If no such intent is expressed, the enactment must be classified as substantive, procedural, or interpretive. [Keith v. U.S. Fidelity & Guar. Co.], Id., p. 6, 694 So.2d at [180] 183 [ (1997) ]. It is well accepted that substantive laws either establish new rules, rights, and duties or changes existing ones, while interpretive laws merely establish the meaning the statute had from the time of its enactment. Id. Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding of the operation of the laws. Id. Nonetheless, since the application of legislative enactments has constitutional implications under the due process and contract clauses of both the United States and Louisiana Constitutions, even where the legislature has expressed its intent to give a substantive law retroactive effect, the law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. Id.

Brookewood, 12-1205, pp. 5-6, 116 So.3d at 903-904.

Section D of La. Rev. Stat. 38: 2191 was added by Act No. 184; however, the Section is silent as to whether the Legislature intended it to be applied [ ^retroactively. Therefore, we must determine whether this Section is substantive, procedural or interpretive.

Section D is interpretative because it clarifies that with respect to progressive stage payments at least, any public entity failing to make such payments “arbitrarily or without reasonable cause” can be compelled to render such payment through a writ of mandamus. Also, the First Circuit has acknowledged that the appropriation requirement of La. Rev. Stat. 38:2191(D) is interpretive in nature as it promotes the Legislature’s intent to provide for the prompt payment of contractors:

Indeed, by referring to the, appropriation made for the award and execution of the contract, the statute promotes the legislative intent, to provide for the prompt payment to contractors awarded public works contracts.

Quality Design, 13-0752, p. 7, 146 So.3d at 572.

Furthermore, 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 mandamus may issue where funds have been appropriated for an underlying public works contract. The amendment at issue codifies a remedy for those parties awaiting payment from public entities where the funds have already been appropriated. Therefore, we find that Section D is also procedural and subject to retroactive application.

We do not find that Section D is substantive as it does not establish new rules, rights, and duties nor change existing ones. For instance, Louisiana courts have held that mandamus is a proper remedy to enforce rights fixed by contract, which obviates the need for a public officer to exercise his or her discretion. See Trahan v. Lafayette Par. Sch. Bd., 07-1170, pp. 8-9 (La. App. 3 Cir. 3/5/08), 978 So.2d 1105, 1111, writ denied, 08-0651 (La. 5/9/08), 980 So.2d 696. Also, the Supreme Court has held that mandamus is a proper remedy to compel public officials to pay judicially determined claims from monies previously appropriated therefor. Jefferson Lake Sulphur Co. v. Kolb, 226 La. 506, 510, 76 So.2d 546, 548 (La. 1954).

The act of appropriation of funds is discretionary and specifically granted to the legislature by the constitution. Par. of St. Charles v. R.H. Creager, Inc., 10-180, p. 5 (La. App. 5 Cir. 12/14/10), 55 So.3d 884, 888, writ denied, 11-0118 (La. 4/1/11), 60 So.3d 1250. Nevertheless, the Legislature, in amending La. Rev. Stat. 38: 2191 to provide for mandamus relief, removed the element of discretion from a public entity or officer rendering a progressive or final payment due under contract by requiring that the amount at issue was already appropriated. Indeed, the Second Circuit has interpreted the statutory requirements of La. Rev. Stat. 38:2191(D) to be consistent with general mandamus principles:

The allowance of mandamus relief where the public entity has appropriated funds for the award and execution of a contract suggests that payment of the balance due pursuant to an appropriation is a ministerial duty, rather than a discretionary act. Mandamus may be ordered to compel a public officer to perform a ministerial duty required by law. La. C.C.P. art. 3863.

Foster Const., Inc. v. Town of Richwood, 48, 171, p. 8 (La.App. 2 Cir. 6/26/13), 117 So.3d 607, 610-11.

| t i Although section B, as the Port noted, was not held to have retroactive application, that is a separate section of this statute specifically involving a party’s right to attorney’s fees. The purpose of La. Rev. Stat. 38:2191 is to ensure the prompt payments of obligations arising under public contracts, as codified in section A of the statute, when said obligations become due and payable. Section D clarifies what conditions must be met to seek prompt payment and provides a procedure for accomplishing this’ end that is consistent with the general mandamus principles and Louisiana jurisprudence. The Fifth Circuit explained the connection between these two sections:

The use of the word “shall” in this provision [Section A] unequivocally expresses a public entity’s mandatory duty to fulfill its contractual obligations as they become due. Should a public entity fail to fulfill its mandatory duty under La. R.S. 38:2191(A), subsection D, again employing the mandatory “shall,” subjects the public entity to mandamus to compel payment of the sums due under the contract.

Wallace C. Drennan, Inc. v. St. Charles Par., 16-177, p. 10 (La.App. 5 Cir. 9/22/16), 202 So.3d 536, 544.

Thus, for the foregoing reasons, we find that Section D is an interpretive and procedural amendment to La. Rev. Stat. 38:2191. This assignment of error is without merit.

La. Rev. Stat. 38:2191 is Non-applicable to a Pre-existing Judgment

In its next assignment of error, the Port argues that the purpose of La. Rev. Stat. 38:2191 is not to grant a contractor a writ of mandamus after a final judgment | ^has been rendered judicially determining the amount due. It asserts that the Louisiana Legislature has not statutorily provided such an option for contractors. Thus, the district court erred in interpreting the statute in a manner that conflicts with the Constitutional prohibition against the issuance of a writ of mandamus to collect a judgment.

' The Port emphasizes that a writ of mandamus is an extraordinary remedy that is penal in nature, and it must be strictly construed. Such writs only lie, it argues, to compel performance of duties that are purely ministerial and in which no element of discretion is left to the public officer. Hoag, 04-0857, p. 8, 889 So.2d at 1024. It further argues that the addition of mandamus relief to La. Rev. Stat. 38: 2191 did not modify the basic requirement that a writ of mandamus may only issue to compel performance of a ministerial duty and is not subject to discretion pursuant to La. Civ. Code Proc. art. 3861, et. seq.

The Port points out that the underlying money judgment was rendered in 2011, after 10 years of litigation, and that Hopkins did not seek mandamus relief until after the judgment became final. It avers that because the district court had to determine the validity of Hopkin’s claims for unpaid monies under the Contract, this is not a purely ministerial matter. Moreover, the Port supports its argument by explaining that the district court determined that some of the Port’s arguments had merit and denied Hopkins all of the relief it sought. It asserts that the district court erred in issuing a writ of mandamus enabling Hopkins to collect the money judgment.

Legislation is the solemn expression of legislative will, and thus, the interpretation of legislation is primarily the search for the legislative intent. Mayeux v. Charlet, 16-1468, p. 8 (La. 10/28/16), 203 So.3d 1030, 1036 (citing Cat’s Meow, Inc. v. City of New Orleans Through Dept, of Finance, 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198). The starting point in thé interpretation of any statute is the language of the statute itself as what a legislature says in the text of a statute is considered the best evidence of its intent and will. Id. (citing M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27). The Supreme Court further set forth the following general principles applicable to interpreting legislative intent:

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ. Code art. 9; La. Rev. Stat. §§ 1:3 and 1:4. However, 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. Civ. Code art. 10; La. Rev. Stat. § 1:3. The legislative history of an act and contemporaneous circumstances are also helpful guides in ascertaining legislative intent. Exxon Pipeline Co. v. Louisiana Public Service Com’n, 98-1737, p. 9 (La. 3/2/99), 728 So.2d 855, 860.

Mayeux, 16-1463, p. 8, 203 So.3d at 1036.

The Supreme Court has explained that “[mjandamus is a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.” Aberta, Inc. v. Atkins, 12-0061, pp. 2-3 (La. 5/25/12), 89 So.3d 1161, 1163 (citing La. Code Civ. Proc. art. 3861). A writ of mandamus' may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. Civ. Code Proc. art. 3862 [emphasis added]. Pursuant to La. Code Civ. Proc. art. 3863, “[a] writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law.” A ministerial duty is a “simple, definite duty, arising under conditions admitted or proved to exist, h4and imposed by law.” Hoag, 04-0857, p. 7, 889 So.2d. at 1024. The Supreme Court has further explained that a ministerial duty “contains no element of discretion.” Aberta, 12-0061, pp. 2-3, 89 So.3d at 1163 (quoting Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890 (La. 4/8/08), 979 So.2d 1262, 1269). A writ of mandamus, therefore, may not be issued to compel a public official to exercise discretionary authority. Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 16-0566, p. 13 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037 [citations omitted].

Lastly, Mandamus is an extraordinary remedy that is to be used sparingly. Id. It never issues in doubtful- cases. City of Hammond v. Parish of Tangipahoa, 07-0574, p. 11 (La.App. 1 Cir. 3/26/08), 985 So.2d 171, 181.

The statute at issue, La. Rev. Stat. 38: 2191, entitled Payments under contract, provides:

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. Any public entity faffing 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. 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.
C. The provisions of this Section shall not be subject to waiver by contract.
D. Any public entity faffing to make any progressive stage payments arbitrarily or without reasonable cause, or any final payment when due as provided in this Section, 11tishall 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 stated purpose of the aforementioned statute, contained in section A, is to ensure that public entities promptly pay their obligations when they become due pursuant to the terms of public contracts. Section B sets forth the requirements for parties seeking to recover attorneys’ fees against public entities when they have failed to make either a progressive or final payment. Section C provides that the terms of a public contract cannot alter the application of this statute, which reinforces the Legislature’s intent that those contracting with public entities are promptly paid. Finally, Section D sets forth that mandamus relief is available against public entities in two circumstances: 1) when a public entity has failed to make progressive stage payments arbitrarily or without reasonable cause under a contract; or 2) when a public entity had failed to tender a final payment when due under the contract. The relief available to the aggrieved party is limited by the amount 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 does not prohibit a contractor from first seeking relief through an ordinary proceeding, nor has it been interpreted by any of our fellow Circuits to bar such actions. Hopkins seeks payment for monies owed under a public contract. The fact that the amount due was adjudicated is irrelevant to the Legislature’s purpose of ensuring that private entities contracting with public entities receive the monies due, if the other statutory requirements were met.

| ^Furthermore, we note that in Quality Design, supra, the First Circuit upheld the issuance of a writ of mandamus compelling the City of Gonzales to pay a contract balance pursuant to a final judgment under La. Rev. Stat. 38: 2191. The First Circuit also reasoned that a public entity’s separate claims against a contractor are distinct from the issue of whether a writ of mandamus should issue. Quality Design, 13-0752, p. 7, 146 So.3d at 572. The First Circuit explained that “pursuant to the mandate of La. R.S. 38:2191(D), mandamus is the appropriate and proper remedy by which QDC (the contractor) can execute that judgment.” Id., 13-0752, pp. 7-8, 146 So.3d at 572. We too find that said statute is applicable under the facts of this matter. Thus, this assignment of error is 'without merit.

Failure to Satisfy the Requirements of La. Rev. Stat. 38:2191

In its next assignment of error, the Port avers that Hopkins failed to demonstrate that it satisfied the statutory requirements of La. Rev. Stat. 38:2191. It argues that final payments were only due under the contract when there was final acceptance by the Port, filing of a certificate of final acceptance and production of a clear lien certificate. Hopkins, the Port asserts, did not meet any of these requirements as it abandoned the project leaving many portions of the project incomplete. Thus, the Port states that it was justified in refusing to pay any balance Hopkins claimed to be due. The Port further maintains that the Port did not file a final, formal acceptance of the contract. The Port also avers that the amount it is being ordered to pay in mandamus is not the amount due under the contract, but the amount due under the September 2011 judgment.

|17In the previous appeal of this matter, we recognized that under Section 15.2.9 of the contract, the unpaid balance became payable after the replacement contractor hired by the Port completed the job. St. Bernard Port, 12-0167, p. 23, 108 So.3d 874, 887-88. Thus, the final payment was due when the replacement contractor hired by the Port completed Phase I. The contract terms are what the Port is ultimately obligated to adhere to under La. Rev. Stat. 38: 2191.

Moreover, formal final acceptance, under the statute, is only required when the aggrieved party seeks attorney’s fees, under section B, and is not required to seek mandamus relief as a whole. We further note that under Section D, the caveat that mandamus relief is only available if the public entity’s failure to pay is arbitrary or without reasonable cause applies to progressive payments. However, Hopkins seeks a final payment.

Lastly, as the Port notes, we upheld the district court’s finding that Hopkins had in fact abandoned the project leaving some work incomplete. St. Bernard Port, 12-0167, p. 9, 108 So.3d at 881. Nevertheless, that issue is distinct from 11sHopkins being owed a final payment due under its contract pursuant to La. Rev. Stat. 38:2191(D). Therefore, we find this assignment of error to be without merit.

No Evidence of Appropriation for the Contract

In its fifth assignment of error, the Port contends that there was no specific appropriation, as required by La. Rev. Stat. 38:2191(D), for the public works eon-tract at issue. The Port asserts that while there was an appropriation made for the whole project, an appropriation was not specifically made for the contract with Hopkins.

The Port represents that it made annual budget appropriations for general expenses for renovation and construction of the intermodal terminal. The Port states that it used funds from the annual budget to pay for other construction work on the Project, but did not include funds in future budgets, after Hopkins abandoned its work and was later terminated by the Port. The Port relies upon the testimony of its Chief Financial Officer, Drew Heaphy, who explained that there was a general appropriation made each fiscal year for the funds that were expected to be expended in that fiscal year for each phase of the Project. He further testified, it avers, that there were funds identified for the whole Project, the rehabilitation of the terminal which encompassed more than the work that Hopkins was to provide. He further explained that funds were identified in the annual budget of the Port to pay anticipated expenses related to the Project until Hopkins abandoned the job. Funds were not appropriated for this specific project and Hopkins name is absent from the relevant documents.

li9We disagree. As previously noted, Hopkins was awarded a contract with the Port through a bid process. While the Port equivocates that the appropriated money was for the Project, not for Hopkins’ contract, we find that an appropriation was made, thereby separating the disputed funds from the public fisc, to pay Hopkins for Phase I of the Project. Mr. Heaphy testified that at the beginning of the fiscal year, June 1st of each year, the Port appropriates monies to be paid on the contract(s) for that year. He further testified that because the work Hopkins was to perform fell within two fiscal years, 2000-2001 and 2001-2002, that monies to pay Hopkins, inclusive of change orders, were budgeted for and included within a general appropriation for the Project during each of those years. Mr. Heaphy further explained that Hopkins’ contract balance of $459,081.86, was “put into the continuation of the construction project, other vendors and everything,” after Hopkins abandoned the job.

We recognize that the Port had to retain another contractor to complete Phase I; however, payments that may have been tendered to a replacement contractor for the same scope of work do not change the fact that there was initially an appropriation to pay Hopkins. Unlike in Foster Const., Inc. v. Town of Richwood, where no appropriation was made by a town and the contractor was compensated with a combination of loan funds and monies from the town’s general fund, in the matter sub judice, funds were earmarked to pay Hopkins for the Project it was awarded. Additionally, the fact the Port spent the remaining | ^monies appropriated to pay Hopkins does not bar Hopkins from recovery, as the First Circuit explained in Quality Design, supra:

Additionally, the City cites no authority for its untenable proposition that availability of the mandamus relief in La. R.S. 38:2191 (D) is conditioned on appropriated funds remaining available. The statute does not refer to appropriated funds remaining available; rather, it clearly states appropriation “for the award and execution of the contract.” The fact that the City has spent those appropriated funds on other contracts in violation of the statute’s mandate, alone, supports a finding that its nonpayment of the contract balance warrants mandamus relief.

Id., 13-0752,p. 7, 146 So.3d at 572.

Therefore, we find that the requirement of Section D that an appropriation was “made for the award and execution of the contract, including any authorized change orders” has been satisfied. This assignment of error is without merit.

Interest Due on Writ of Mandamus

Lastly, the Port asserts that La. Rev. Stat. 38:2191 is silent as to whether interest is to be included in the calculation of payments under a contract. The contract in this matter did not authorize applying interest, and neither does La. Rev. Stat. 38:2191. The Port further avers that judicial interest applies to judgments, not contracts.

The Port is correct in arguing that La. Rev. Stat. 38:2191 does not provide for an award of interest. Only the First Circuit, in Quality Design, supra, has addressed whether judicial interest falls within the scope of the subject statute such that it could be included in the grant of mandamus on appeal.

In Quality Design, a contractor, on appeal, sought an award of interest to be included in his mandamus relief. The First Circuit, which granted the contractor judicial interest, reasoned that district courts are required to award interest in 12T,iudgments as prayed for or as provided by law under La. Code Civ. Proc. art. 1921. Id., 13-0752, p. 8, 146 So.3d at 573. The Court considered that, under Louisiana law, debts bear interest from the due date. La. Civ. Code art. 2000.

The Court further relied upon C.R. Humphreys General Contractor, Inc. v, Tangipahoa Parish School System, unpub., 07-0993, pp. 16-17 (La.App. 1 Cir. 12/21/07), 973 So.2d 178, writ denied, 08-0166 (La. 3/14/08), 977 So.2d 934, in holding that a judgment granting mandamus could be amended to include an award of interest. Quality Design, 13-0752, p. 9, 146 So.3d at 573. In C.R. Humphreys, a contractor for a public works project appealed a trial court’s failure to award interest when it found the Tangipahoa Parish School System owed it the balance of a contract pursuant to La. Rev. Stat. 38:2191. The First Circuit, in C.R. Humphreys, concluded that the contractor was entitled to interest on the contract sum awarded from the date of its final pay request. C.R. Humphreys, 07-0993, p. 9 (citing Thomas B. Catchings and Associates v. City of Baton Rouge, 621 So.2d 767 (La.1993)).

Similarly, we find that Hopkins is entitled to an award of judicial legal interest, as ordered by the district court, because the interest is a sum “due under the contract.” La. Rev. Stat. 38:2191(D). Thus, we find that this assignment of error is without merit.

DECREE

For the foregoing reasons, the peremptory exception of no cause of action of St. Bernard Port, Harbor and Terminal District, is denied. Additionally, the May | ⅞⅞28, 2016 judgment of the district court granting mandamus relief to Guy Hopkins Construction Co., Inc., is affirmed.

EXCEPTION OF NO CAUSE OF ACTION DENIED; AFFIRMED

      . We note that the Port moved for Reasons for Judgment; however, the district court did not provide reasons.

      . La. Const. Art. XII, § 10 (c) provides:
      (C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judg

        ment against the state, a state agency, or a political subdivision shall be exigible, pay-abhj or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. [Emphasis added].
      La. Rev. Stat. 13:5109 (B)(2)states:
      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.

      . In Foster Const., a Contractor appealed the denial of his petition for writ of mandamus under La. Rev. Stat. 38:2191, to the Second Circuit. The Court found that mandamus was not an available remedy under La. Rev. .Stat, 38:2191 because there was no appropriation made by the town for the public works contract, The contractor was initially being paid by the town from monies left over from a loan though the town later made contract payments from its general fund. Id.., 48,171, p. 5, 117 So.3d at 609.

      . In Drennan, a contractor filed a petition for writ of mandamus under La. Rev. Stat. 38:2191 to compel St, Charles Parish to make a final progressive payment of $100,000 pursuant to a public works contract, The district court granted the petition, The Fifth Circuit upheld the grant of mandamus relief, Id., 16-177, p. 13, 202 So.3d at 546.

      . The appropriation requirement is discussed in the next assignment of error.

      . Section 15.2.9, as we quoted, states in pertinent part:
      OWNER may, after giving CONTRACTOR seven days’ written notice ... terminate the services of CONTRACTOR, exclude CONTRACTOR from the site and take possession of the Work ... and finish the Work as OWNER may deem expedient. In such case, CONTRACTOR shall not be entitled to receive any further payment until the Work is finished.

      .Section B of La. Rev. Stat. 38:2191, provides:
      B. 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. 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.

      . See Footnote 1, supra.

      . See Footnote 4, supra.

      . The court shall award interest in the judgment as prayed for or as provided by law. La. Code Civ. Proc. art. 1921.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    STATE IN the INTEREST OF K.M., et al.
    16-986
    Court of Appeal of Louisiana, Third Circuit.
    04/12/2017
    D. Shunette Thomas-Jordan, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR DEFENDANT/APPELLANT: K.S. (mother)
    Amy E. McGray, Child Advocacy Center, One Lakeshore Drive, Suite 1585, Lake Charles, LA 70601, (337) 491-2461, COUNSEL FOR PLAINTIFFS/APPEL-LEES: KM. (child), C.M., Jr. (child), Wa. St. (child), A.S. (child), Kr.S. (child), W.S. (child)
    J. Wade Smith, P. O. Box 1706, Lake Charles, LA 70602, (337) 436-8424, COUNSEL FOR DEFENDANT/APPEL-LEE: W.St. (father)
    Mike K Stratton, Public Defender’s Office, P.O. Box 3757, Lake Charles, LA 70601-3757, (337) 436-1718, COUNSEL FOR DEFENDANT/APPELLEE: C.M., Sr. (father)
    Bethany Blackson, Assistant District Attorney, Fourteenth Judicial District, 901 Lakeshore Drive, Lake Charles, LA 70601, (337) 437-3400, COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana, Department of Children & Family Services
    Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   KYZAR, Judge.

hThe defendant, K.S., appeals from a judgment adjudicating her and two of her children as being a family in need of services and granting permanent custody of two other children to their father, despite finding that none of the children were children in need of care. On considering the record before us, we reverse the judgment of the trial court.

DISCUSSION OF THE RECORD

K.S. is the mother of six minor children: C.M., Jr. and K.M., who were born as a result of her former marriage to C.M., Sr., and Wa.St, A.S., Kr.S, and W.S, who were born as a result of her relationship with W.St. The two youngest children, Kr. S, born July 16, 2014, and W.S, born September 13, 2015, were both delivered prematurely and suffer from significant health issues. On October 23, 2015, a complaint of neglect was filed with the State of Louisiana, through the Department of Children and Family Services (the State), resulting in an oral instanter order being issued by the trial court, placing the six children in the State’s custody.

On October 26, 2015, the State filed a petition seeking to have all six children declared to be in need of care, pursuant to Title VI of the Louisiana Children’s Code. The allegations centered primarily on K.S.’s medical neglect of her two youngest children. At a continued custody hearing that same day, K.S. denied all of the State’s allegations, but agreed to the State’s continued custody of the children. At the close of the hearing, the trial court placed Wa.St, A.S, Kr.S, and W.S. in the temporary custody of the state, while K.M. and C.M, Jr. were placed in the temporary custody of their father, C.M, Sr, all pending the 12adjudication hearing. Judgment continuing the children in the State’s custody was rendered on April 7, 2016.

The two-day adjudication hearing concluded on August 5, 2016. At the close of the State’s case, K.S. moved for an involuntary dismissal of its claims, which the trial court took under advisement. On August 15, 2016, the trial court issued written reasons for judgment in which it granted in part and denied in part K.S.’s motion for involuntary dismissal. The trial court held that the State failed to prove that Wa.St. and A.S. were children in need of care or in need of services and dismissed the State’s claims as to those children. The trial court also held that the State failed to prove that Kr.S.' and W.S. were children in need of care, but held that the State’s evidence might be sufficient to adjudicate them as a family in need of services. Thus, the trial court denied K.S.’s motion as to these children and continued the matter for trial on the issue of family in need of services. Finally, the trial court ordered that C.M, Sr.’s temporary custody of K.M. and C.M, Jr. become permanent, subject to reasonable visitation by K.S. and ordered that the State be released from its supervision of those children.

Thereafter, at the August 17, 2015 hearing on the family services issue, the trial court reiterated that it was granting in part and denying in part K.S.’s motion for involuntary dismissal. It dismissed the State’s petition as it related to Wa,St. and A.S. and ordered the children returned to KS.’s custody. The trial court further dismissed the State’s petition as it related to K.M. and C.M., Jr., but granted permanent custody of the children to their father, O.M., Sr. At the conclusion of these rulings, the trial court asked how the parties wished to proceed on the family services issue in regards to Kr.S. and W.S. All of the parties rested at that time. The trial court then ruled that Kr.S. and W.S. were in need of family services and ^ordered that a family services plan be prepared for ■ the children. An adjudication judgment was rendered by the trial court on August 25, 2016. An amended adjudication judgment was rendered on August 26,. 2016. This appeal followed. K.S. is the only party who has appealed from the trial court’s judgment.

OPINION

On appeal, K.S.. asserts two assignments of error committed by the trial court. They are as follows:

1. The trial court erred in denying, in part, [K.S.’s] motion for involuntary dismissal pursuant to La. C.C. Art. 1672, because the State failed to meet its burden of proof in proving neglect such as to warrant an adjudication of any of the children being children in need of care. The State also failed to prove by a preponderance of the evidence that the family was a family in need of services as required by La. Ch. C. Art. 666 and La. Ch. C. Art. 730 respectively. Absent a finding of neglect or that the family is a family in need of services, ' the trial court was without jurisdiction to render a judgment of custody, and thus erred in .granting permanent custody of [K.M.] and [C.M., Jr.] to their father [C.M., Sr.]
2. The trial court erred in adjudicating the children [Kr.S.] and [W.S.] as a family in need of services, in that there is no evidence in the record to support such a ruling.

OPINION

The procedural device of .involuntary dismissal, as it pertains to. bench trials, is found in La.Code Civ.P. art. 1672(B)," which provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his- right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may " decline to render any judgment until the close of all the evidence.

A trial court is entitled to great discretion in weighing and evaluating the evidence in determining whether the plaintiff has proven its case by a ^preponderance of the evidence. Guillory v. Broussard, 15-953. (La.App, 3 Cir. 5/4/16), 190 So.3d 486, writ denied, 16-1045 (La. 9/16/16), 206 So.3d 884. The trial court’s grant or denial of a motion for involuntary dismissal is reviewed pursuant to the manifest error standard of review. Id.

The grounds for finding that a child is in need of care are set out in La.Ch.Code art. 606, as follows:

A. Allegations that a child is in need of care must assert one or more of'the following grounds: . "
(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is-a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent.
(4) As a result of‘a criminal prosecution, the parent has been convicted of a crime against the child who is the subject of this proceeding, or against another child of the parent, and the parent is now unable to retain custody or control or the chs welfare is otherwise endangered if left within the parent’s custody or control.
(5) The conduct of the parent, either as principal or accessory, constitutes a crime against the child or against any other child.
(6) The child is a victim of human trafficking or trafficking of children for sexual purposes.
Subpar. (A)(7) effective when a child, who is a victim of commercial sexual exploitation, human trafficking, or trafficking of children for sexual purposes perpetrated by someone other than a parent or caretaker, becomes an eligible victim for which federal match funds are available through Title IV-E of 47 U.S.C. 672
15(7) The child is a victim of commercial sexual exploitation, human trafficking, or trafficking of children for .sexual purposes perpetrated by any person regardless .of their relationship to the child.
B. A child whose parent is unable to provide basic support, supervision, treatment, or services’ due' to inadequate financial resources shall not, for that reá-son alone; be determined to be a child in need of care.

The State presented the testimony .of five witnesses during the adjudication hearing. The first to testify was Kasey Blagrave, a investigator with the Department of Child and Family Services (DCFS), who testified that she was assigned to investigate an October 22, 2015 report of alleged neglect — failure to thrive (non-organic), neglect — medical neglect, neglect — dependency, neglect — lack of adequate supervision, and neglect — dependency regarding K.S,’s youngest two’ children, Kr.S. and W.S. She said that there were no reports of neglect, medical or otherwise, as to the other four children.

Upon concluding her investigation, Bla-grave indicated that DCFS felt that due to KS.’s alleged history of non-compliance with the agency stemming from a previous closed case and because the two younger children were diagnosed as failure to thrive, they were in danger of not being cared for properly. Blagrave also testified that the family had previously ■ been involved in family services and that the case was closed for non-cooperation. She stated that she did not know if K.S. voluntarily participated in that case, and she agreed that if the agency had concerns regarding any sort of neglect or abuse at that time, it would have filed a petition to adjudicate K.S.

Blagrave further testified that there were no allegations regarding a lack of adequate housing or food, no allegations of abuse towards any of the children, and that the children, including Kr.S., appeared to have everything they needed. She admitted that there were no complaints of medical neglect as to any of the children |fifrom any physician or nurse involved in the care of the children. In addition, Blagrave raised an issue regarding lack of supervision for the children, but clarified that the allegation of lack of.supervision only pertained to W.S., who had allegedly been left in his hospital room on one occasion for approximately 10 minutes, without K.S. notifying the nurses.

Dr. Caroline Courville, a pediatrician, testified that she began treating Kr.S. on September 30, 2015, and that Kr.S., who was fourteen months old and weighed fourteen pounds, was diagnosed with “failure to thrive.” She described failure to thrive as being synonymous with the inability to gain weight and that the diagnosis is “ascribed to a child that has difficulty staying on their growth curves.” She explained that there were basically two categories of failure to thrive, organic and non-organic. Organic failure to thrive was connected with some internal illness, while the more common non-organic failure to thrive is typically related to a lack of or deficiency in caloric intake. She stated that a diagnosis of failure to thrive did not equate to neglect, although it could be a factor along with other causes. Although she did not say that she believed Kr.S.’s failure to thrive was due to K.S.’s neglect, she testified that it appeared to be based on her failure to receive the proper nutrition she needed to gain weight. Dr. Courville testified that she became involved with Kr.S. on a referral from PediaTrust Lake Charles (PediaTrust), a daycare for medically fragile children where Kr.S. was enrolled.

Kathleen McFarlain, a pediatric nurse at PediaTrust, testified that Kr.S. entered that program per her doctor’s referral due to her diagnosis of failure to thrive and that she had been doing well since then. There was no testimony by Ms. McFarlain that she believed Kr.S.’s failure to thrive was due to KS.’s neglect, nor did she indicate that this was the belief of the referring doctor.

|7Elizabeth Phillips, a neonatal nurse practitioner for Lake Charles Memorial Hospital, testified that she was involved in W.S.’s care while he was hospitalized there, having been born extremely prematurely at twenty-nine weeks. She stated that he was born with a hole in his heart and was hospitalized for forty-one days in 2015. She provided testimony as to W.S.’s medical condition, her observations of K.S, on two separate occasions, and as to how many times K.S. visited with W.S. while he was in the hospital. She indicated that K.S. visited with W.S. on five occasions and called twice, but she admitted that the nurses did not always document every visit by a parent or guardian. She described two incidents involving.K.S. that gave her some concern. On October 14, 2015, she observed that K.S. was somewhat fragmented in her thoughts and seemed very confused. However, she admitted that the incident did not lead her to contact DCFS with any complaints or concerns. She also related an incident on October 21, 2016, where she observed that K.S. was very upset and crying, apparently due to an argument with W.S.’s father. At some point that same day, she allegedly discovered that K.S. left W.S. alone in his hospital room for approximately 10 minutes without telling the staff, although he was monitored electronically the entire time. Nurse Phillips, when asked about the child’s condition after she discovered that he had been left alone, stated, “The baby was fine.” It was on this date that the State received its complaint.

The last witness for the State was Leslie Muslow, a DCFS Child Welfare Specialist, who testified that as the foster care worker, she supervised the children in the five months leading up to the hearing. Thus, she offered no evidence relative to KS.’s alleged neglect of the children.

Is At the conclusion of the State’s case, K.S. moved for an involuntary dismissal of its claims pursuant to La.Code Civ.P. art. 1672(B). After taking the matter under advisement, the trial court granted the motion in part after specifically finding that the State failed to present sufficient evidence that would warrant an adjudication of child in need of care as to KM., C.M., Jr., A.S., and Wa.St., and dismissed the State’s claims as to those children. However, the trial court denied the motion in part by adjudicating Kr.S. and W.S. as a family in need of services, deferring to a later hearing to determine a family services plan, and by granting permanent custody of KM. and C.M., Jr. to C.M., Sr.

In adjudicating Kr.S. and W.S. as a family in need of services, the trial court applied La.Ch.Code art. 666, which provides

A. Following the adjudication hearing, the court shall immediately declare whether the evidence warrants a child in need of care adjudication. In exceptional circumstances, the court may take the matter under advisement for a period not to exceed ten days.
B. If the evidence demonstrates that the child’s family is in need of services, the court may adjudicate the child’s family to be in need of services and proceed to a disposition in accordance with Chapters 10 and 12 of Title VII.
C. If the court finds that the evidence does not warrant an adjudication that either the child is in need of care or the family is in need of services, it shall dismiss the petition.

While La.Ch.Code art. 666(B) authorizes a trial court to adjudicate a child’s family to be in need of services, this adjudication is only proper if the State proves by a preponderance of the evidence that the family is, in fact, a family in need of services. La.Ch.Code art. 770. Furthermore, a family is a family in need of services only if one or more of the statutory grounds for such exist. The grounds for adjudicating a family in need of services are exclusive, as directly provided for in La.Ch.Code art. 749, which states that the petition to declare a family to be in need |9of services, “shall aver one or more of the grounds set out in Article 730.” Louisiana Children’s Code Article 730 sets forth only ten grounds upon which an adjudication of a family in need of services can be based:

(1) That a child is truant or has willfully and repeatedly violated lawful school rules.
(2) That a child is ungovernable.
(3) That a child is a runaway.
(4) That a child has repeatedly possessed or consumed intoxicating beverages, or that he has misrepresented or deceived his age for the purpose of purchasing or receiving such beverages from any person, or has repeatedly loitered around any place where such beverages are the principal commodities sold or handled.
(5) That a child has committed an offense applicable only to children.
(6) That a child under ten years of age has committed any act which if committed by an adult would be a crime under any federal, state, or local law.
(7) That a caretaker has caused, encouraged, or contributed to the child’s behaviors enumerated in this Article or to the commission of delinquent acts as defined in Title VIII.
(8) That, after notice, a caretaker has willfully failed to attend a meeting with the child’s teacher, school principal, or other appropriate school employee to discuss the child’s truancy, the child’s repeated violation of school rules, or other serious educational problems of the child.
(9) That a child has been found incompetent to proceed with a delinquency matter under Article 832 et seq.
(10) Repealed by Acts 2012, No. 730, § 2.
(11) A child found to have engaged in cyber bullying.

In the instant case, there was absolutely no evidence establishing, by a preponderance of the evidence, any of the above-listed grounds. None of the testimony elicited from the witnesses related in any way to the provisions of La.Ch.Code art. 730. Accordingly, we find that the trial court erred in denying in Impart K.S.’s motion for involuntary dismissal by adjudicating Kr.S. and W.S.’s family a family in need of services.

We further find that the trial court erred in denying in part K.S.’s motion for involuntary dismissal by granting permanent custody of K.M. and C.M., Jr., to their father, C.M., Sr. At the initial continued custody hearing on October 26, 2015, K.S. denied all of the allegations contained in the State’s petition, but agreed to the State’s continued custody of the children. The trial court then granted temporary custody of K.M. and C.M., Jr. to C.M., Sr., pending the adjudication hearing. However, in its August 15, 2016 written reasons for judgment, the trial court made the temporary custody agreement with C.M., Sr. permanent, released the State from supervision of K.M. and C.M., Jr., and granted K.S. reasonable visitation. The trial court confirmed its decision during the August 17, 2016 family in need of services hearing, at which time K.S. objected to the order. Nevertheless, when granting permanent custody to C.M., Sr., the trial court made no finding that the children were in need of care or that they were a family in need of services.

We agree with the trial court that the evidence failed to establish that K.M. and C.M., Jr. were children in need of care, and thus, dismissal of the petition as it related to them was warranted. The trial court mentioned in its August 15, 2016 written reasons that the fact that K.S. had six children potentially in her care, with two of them receiving special medical attention, was a factor which led to the potential adjudication of the family being a family in need of services. However, the trial court made no such finding that these two children were a family in need of services. To the contrary, the trial court earlier dismissed the petition as it related to K.M., C.M., Jr., Wa.St., and A.S., finding only that the family was a family in need of services with regards to Kr.S. and W.S. As stated previously, lnLa.Ch.Code art. 730 provides specific, exclusive grounds for the adjudication of a family in need of services, and none of those grounds were alleged or proven here by the State as to any of K,S.’s six children. Furthermore, we agree with K.S. that absent a finding that K.M. and C.M., Jr. were children in need of care or a family in need of services, the trial court lacked jurisdiction to award permanent custody of the two children to C.M., Sr.

Accordingly, for the reasons set forth, we find that the trial court was manifestly erroneous in denying in part K.S.’s motion for involuntary dismissal, and we reverse the judgment of the trial court that Kr.S. and W.S. are a family in need of services, dismissing all proceedings in connection therewith. We further reverse the judgment of the trial court granting permanent custody of the minor children, C.M., Jr., and K.M., to their father, C.M., Sr., directing that the custody of the children be returned to K.S. Based on these findings, we render judgment in favor of K.S., granting an involuntary dismissal of the State’s claims.

DISPOSITION

The trial court correctly determined that the evidence failed to show that any of the children of K.S. were in need of care, and it is apparent that the trial court also wished to assist this mother of six children, two of which have significant medical issues, with* the determination that they were in need of services as to those two children. However, in- doing so, the trial court stretched the boundaries of La.Ch. Code art. 730 beyond those legally prescribed. Accordingly, and for the reasons set forth herein, the judgment of the trial court adjudicating Kr.S. and W.S. a family in need of care and granting permanent custody of K.M. and C.M., Jr. to C.M., Sr, is reversed. We further render judgment in favor of K.S., granting an | ^involuntary dismissal of the State’s claims against her and order that custody of K.M. and C.M., Jr. be returned .to K.S.

REVERSED.

      . The initials of the children and their parents are used to protect the identity of the minor children. Uniform Rules — Courts of Appeal, Rules 5-1, 5-2.


author: CRAIN, J. HOLDRIDGE, J.,

text:
    STATE of Louisiana v. Shawn BECNEL
    NO. 2016 KA 1297
    Court of Appeal of Louisiana, First Circuit.
    APRIL 20, 2017

      Warren Montgomery, District Attorney John Alford, Assistant District Attorney Franklinton, Louisiana and Matthew Ca-plan Assistant District Attorney Coving-ton, Louisiana Attorneys for State of Louisiana
    Mary C. Hanes New Orleans, Louisiana Attorney for Defendant/Appellant, Shawn Becnel
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

| «.The defendant, Shawn Becnel, was charged with possession of pornography involving juveniles. See La. R.S. 14.81.1. He was convicted by a jury of the lesser offense of attempted possession of pornography involving juveniles and sentenced to ten years imprisonment at hard labor. See La. R.S. 14.81.1 and 14:27. The defendant appeals, arguing insufficient evidence to support the conviction and error in admitting evidence of other crimes. We affirm.

FACTS

Shortly after receiving a complaint that the defendant had engaged in indecent behavior with juveniles, officers with the Bogalusa Police Department (BPD) obtained a warrant for the defendant’s arrest and took him into custody. In furtherance of that investigation, the officers obtained and executed a search warrant for the defendant’s residence, resulting in the seizure of several items, including two laptop computers. Three thousand, five hundred and forty-two images of suspected child pornography were discovered on one of the computers, including 486 images of juveniles known to be under the age of seventeen.

SUFFICIENCY OF THE EVIDENCE

The defendant first argues there was insufficient evidence to convict him. A conviction based on insufficient evidence cannot stand, as it violates due process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. In reviewing claims challenging the sufficiency of the evidence, an appellate court must determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt based on the entirety of the evidence, both admissible and inadmissible, viewed in the light most favorable to. the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Oliphant, 13-2973 (La. 2/21/14), 133 So.3d 1255, 1258; see also La. Code Crim. Pro. art. 821B; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). When circumstantial evidence forms the basis of the conviction, the evidence “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438; Oliphant, 133 So.3d at 1258. The due process standard does not require the reviewing court to determine whether it believes the witnesses or whether it believes the evidence establishes guilt beyond a reasonable doubt. State v. Mire, 14-2295 (La. 1/27/16), — So.3d -, - (2016 WL 314814). Rather, appellate review is limited to determining whether the facts established by the direct evidence and inferred from the circumstances established by that evidence are sufficient for any rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Alexander, 14-1619 (La.App. 1 Cir. 9/18/15), 182 So.3d 126, 129, writ denied, 15-1912 (La. 1/25/16), 185 So.3d 748.

It is unlawful for a person to possess pornography involving juveniles, which, in relevant part, is defined as “any photograph .,, or other reproduction, whether electronic or otherwise, of any sexual performance involving a child under the age of seventeen.” See La. R.S. 14:81.1A(1) and B(5). “Sexual performance” includes any “lewd exhibition of the genitals or anus.” La. R.S. 14:81.1B(7).

To determine the age of an individual depicted in an image, the trier of fact may consider: (1) the general body growth, bone structure, and bone development of the person; (2) the development of pubic or body hair on the person; (3) the development of the person’s sexual organs; (4) the context in which the person is placed or the age attributed to the person in any accompanying video, printed, or 1¿text material; (5) available expert testimony and opinion as to the chronological age or degree of physical or mental maturity or development of the person; and (6) such other information, factors, and evidence available to the trier of fact that the court determines is probative and reasonably reliable. La. R.S. 14:81.1G.

The element of possession includes both “actual” and “constructive” possession. State v. Sandifer, 95-2226 (La. 9/5/96), 679 So.2d 1324,1331. A person who is not in physical possession may have constructive possession when the contraband is under that person’s dominion and control. In determining whether a defendant exercised dominion and control sufficient to constitute constructive possession, the fact finder may consider, among other factors, the defendant’s knowledge of the contraband and his access to the area where the contraband is found. See State v. Gordon, 93-1922 (La.App. 1 Cir. 11/10/94), 646 So.2d 995,1002, Guilty knowledge may be inferred from the circumstances of the case. State v, Pigford, 05-0477 (La. 2/22/06), 922 So.2d 517, 521 (per curiam). The. mere presence in an area where contraband is located or the mere association with one possessing contraband does not constitute constructive possession. See State v. Toups, 01-1875 (La. 10/15/02), 833 So.2d 910, 913, A person may be in joint possession of contraband if he willfully and knowingly shares with another the right to control the contraband. See Gordon, 646 So.2d at 1002.

Pornography involving juveniles is a general intent crime. See State v. Cinel, 94-0942 (La. 11/30/94), 646 So.2d 309, cert. denied, 616 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995); State v. Workman, 14-559 (La.App. 5 Cir. 4/15/15), 170 So.3d 279, 290, writ denied, 15-0909 (La. 3/24/16), 190 So.3d 1189. General criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have, adverted Uthe prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2).

The defendant was found guilty of the responsive offense of attempted possession of pornography involving juveniles, as opposed to the completed offense. An attempt requires both “specific intent to commit a crime” and an act or omission “for the purpose of and tending directly toward the accomplishing of his object.” See La. R.S. 14:27A. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears at trial that the crime intended of attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27C.

The defendant argues the state failed to prove he had specific intent to commit an act tending toward possessing the images found on the laptop computer. Emphasizing that the computer was found in a common area of a home shared with his mother, the defendant maintains the evidence did not establish he had possession of the images on the computer, particularly where, according to the defendant, there was no evidence he used the computer. The defendant also contends the images on the hard drive were inaccessible without forensic software, with the exception of one image, which he claims featured a female who was at least seventeen years of age. As to the remaining images, the defendant argues the state failed to present expert testimony as to the ages of the girls in the images. ■

BPD Officer Jeffery Bergeron executed the search warrant for the defendant’s residence. He testified the laptops were found in the living room, where the defendant slept. Officer Bergeron’s investigation confirmed that only the defendant and his mother lived at the residence. According to the defendant’s mother, the computers belonged to the defendant and she used them only to play video games. When the computers were seized in connection with the search, the defendant’s mother asked when they would be returned.

I (¡Deputy Steven Arroyo with the St. Tammany Parish Sheriffs Office was accepted by the'trial court as an expert in forensic computer examination. Deputy Arroyo .removed the hard drive from each of the seized computers and captured their contents in an image file, which he then formatted using a software program known as “ Access Data Forensic Tool Eat” (ADFTK), that organizes the contents in a viewable format.

Deputy Arroyo discovered 3,542 images of suspected child pornography on one. of the computers. Four hundred and eighty-six of the images were “KFF alert files,” which were defined as files that could be downloaded from the internet and have been previously documented as known images of child pornography. These files have a digital fingerprint (a mathematically generated number) submitted to governmental and law enforcement agencies, which can be identified with a “KFF alert.” Images that generate a KFF alert are widely disseminated, and law enforcement has previously determined that each of the images is of a juvenile known to be under the age of seventeen.

All but two of the images recovered were from areas in the computer’s hard drive that contain deleted items: the recycle bin and “unallocated space,” which is space available on the hard drive that is not used by the computer’s operating system. Based upon their location, Deputy Arroyo opined that the person who downloaded the images had attempted to delete them.

The computer also contained “torrent” software, a program that allows files to be downloaded anonymously and, in Deputy Arroyo’s experience, can be used to download child pornography. Deputy Arroyo also performed a routine virus scan on the computer to confirm that the images were not downloaded by a virus, | -¡which is often claimed as the reason illegal images are on a device. He found no viruses on the computer and concluded the images were intentionally downloaded.

While Deputy Arroyo acknowledged that he could not be sure that all 3,500 images were of individuals younger than the age of seventeen, he testified the 486 “KFF alert” files were pornographic images of children under the age of seventeen that were intentionally downloaded onto the computer.

The defendant argues the evidence fails to sufficiently establish he possessed the prohibited images. The defendant points out that he and his mother lived in the residence; and, citing United States v. Moreland, 665 F.3d 137 (5th Cir. 2011), asserts joint occupancy of the residence, alone, is not sufficient to establish constructive possession of the images on the computer, and the state must offer “additional evidence of the defendant’s knowing dominion or control of the contraband.”

We find Moreland factually distinguishable. The defendant in Moreland was convicted of possessing child pornography, Over 100 images of child pornography were discovered on two home computers found in the defendant’s home. Moreland,, 665 F.3d at 140. It was undisputed that the two computers were subject to joint custody, control, and use by the defendant, his wife, and the defendant’s father (George), who resided in the home for several months prior to the discovery of the images. The evidence established that George used the computers frequently while the others were asleep and during the day when the defendant was at work. Moreland, 665 F.3d at 140, Multiple witnesses testified that George had a preoccupation with pornography. When George learned of the seizure of the defendant’s computers, he sought to have the hard drive destroyed on a computer located at his house. Moreland, 665 F.3d at 147. After George’s death, large amounts of pornographic material were found in his house. Moreland, 665 F.3d at 146-47. The defendant denied that he looked at any child pornography |son the computers seized from his residence. The court of appeal reversed the defendant’s conviction, finding insufficient evidence to support that the defendant possessed child pornography. Moreland, 665 F.3d at 152.

Here, the defendant owned the computer, which was located in an area of the house where he slept. The only other person with access to the computer was the defendant’s mother, who used the computer to play video games. Unlike More- land, there was no evidence suggesting that the defendant’s mother had a preoccupation with pornography. Neither did the defendant’s mother attempt to destroy the computers. In fact, she asked when they would be returned. Based upon the evidence, the jury could have reasonably concluded that the defendant had constructive possession of the computer, as well as knowledge, access, and control of the pornographic images of juveniles found thereon.

The defendant argues the images could not be accessed without the use of forensic software. The record contains no evidence that he could not access the images without the use of forensic software. While Deputy Arroyo used software to extract and organize the pornographic images, he never testified that such software was necessary for a user to view the images, particularly images contained in the computer’s recycling bin.

The jury had the opportunity to view the images and heard expert testimony about the 486 “KFF alert” images. Whether the subjects depicted in those images are younger than seventeen is a fact to be determined by the trier of fact, and expert testimony is but one factor that may be utilized in making that determination. See La. R.S. 14:81.1G; State v. Roberts, 01-00154 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, 785, unit denied, 01-2974 (La. 9/20/02), 825 So.2d 1163. The trier of fact evaluating the images at issue could have reasonably concluded they depict females under the age of seventeen.

19The evidence supports a finding that the defendant possessed pornography involving juveniles in violation of Louisiana Revised Statute 14:81.1. Therefore, it was not irrational for the jury to convict him of an attempt to commit the crime. See La. R.S. 14:27C; see also State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 662. This assignment of error is without merit.

EVIDENCE OF OTHER CRIMES

The defendant argues the trial court erred in denying his motion in li-mine, which sought to preclude evidence that the police initially came to the defendant’s residence to arrest him for indecent behavior with juveniles and to execute a search warrant in connection with that investigation. That information, according to the defendant, is inadmissible evidence of “other crimes” and its probative value is substantially outweighed by the danger of unfair prejudice. See La. Code Evid. arts. 403 and 404B(1). The trial court found the evidence admissible under the “narrative completeness” rule to explain why the investigating officers went to the defendant’s home to execute the' search warrant, resulting in the seizure of the defendant’s computer.

Evidence of other crimes is generally inadmissible because of the substantial risk of unfair prejudice to the defendant. See La. Code Evid. art. 404B(1); State v. Lockett, 99-0917 (La.App. 1 Cir. 2/18/00), 754 So.2d 1128, 1130, writ denied, 00-1261 (La. 3/9/01), 786 So.2d 115. Louisiana Code of Evidence article 404B(1) provides several exceptions to this rule, including other crimes evidence that “relates to conduct that constitutes an integral part of the act or transaction, that is the subject of the present proceeding,” This exception, sometimes referred to as |in“res gestae,” incorporates a rule of narrative completeness without which the state’s case would lose its narrative momentum and cohesiveness. State v. Odenbaugh, 10-0268 (La, 12/6/11), 82 So.3d 215, 251, cert. denied, 568 U.S. 829, 133 S.Ct. 410, 184 L.Ed.2d 51 (2012). Such evidence forms part of the res gestae when the crimes are so related and intertwined with the charged offense that the state cannot accurately present its case withóut reference to it. The evidence completes the story of the crime by providing context to the events. See Odenbaugh, 82 So.3d at 251.

Erroneous admission of other crimes evidence is subject to a harmless-error analysis. Odenbaugh, 82 So.3d at 251. An error is harmless if the jury’s verdict actually rendered at trial was “surely unattributable to the error.” Odenbaugh, 82. So.3d at 251 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993)).

The evidence at issue consists, of brief testimony explaining why the search warrant was issued that led to the discovery of the illicit images on the defendant’s computer. Officer David Miller testified he investigated á complaint the defendant had engaged in indecent' behavior with juveniles, the defendant was arrested, and the search warrant was issued. No facts or circumstances surrounding the complaint were revealed at trial. The state’s only mention of the matter in closing arguments was during rebuttal in response to defense counsel’s statement that the defendant had been arrested for “something unrelated,”

The defendant argues the state could have logically presented its case by referring to the investigation and arrest without naming the particular crime. He maintains there is no connexity. between the charged offense and the alleged incidents of indecent behavior with juveniles. While this argument is persuasive, we pretermit consideration of its merits, because we find the admission of the evidence, even if improper, was harmless error.

InThe evidence presented at trial compels a finding that the guilty verdict is surely unattributable to any error in allowing into evidence the name of the crime for which the defendant was arrested. The computer owned by the defendant and located in the area where he slept contained 3,500 images of juvenile pornography. The only,other person with access to the computer was the defendant’s mother. No evidence was introduced to convince any rational trier of fact that the defendant’s mother sat silent while her son was convicted of possessing her juvenile pornography. The jury rejected any suggestion that the defendant’s mother downloaded the illicit images and knowingly allowed her son to be prosecuted for the offense. The jury’s verdict was surely unattributable to any error in admitting evidence of the defendant’s arrest for indecent behavior with juveniles. This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

Welch, J., concurs.

Holdrige J., concurs assign reasons.

HOLDRIDGE, J.,

concurring.

|J find that the trial court erred in failing to grant the defendant’s motion in limine to preclude evidence or mention of the charge of indecent behavior with a juvenile, which was the reason the police went to the defendant’s residence. The evidence of that charge was not relevant to the crime of possession of pornography-involving a juvenile. The admission of that evidence was highly prejudicial to the defendant and since it had no probative value, the trial court erred in admitting the evidence. However, I find the ruling admitting the evidence' to be harmless error and the jury’s verdict was not attributable to the error.

      . The sentence is without benefit of parole, probation, or suspension of sentence. See La. R.S. 15:301.1, 14:81.lE(l)(a), and 14:27D(3).

      . All references to Louisiana Revised Statute 14:81.1 are to the version of the statute in effect prior to its amendment by 2014 La. Acts, No. 564, § 1.

      . The ADFTK program did not recognize the hard drive for the other laptop, which indicates the hard drive failed or was about to fail, and no information was obtained from that device.

      . The jury initially returned with a guilty verdict as charged. However, polling confirmed only eight votes for the verdict. The jury resumed deliberations and found the defendant guilty of attempted possession. While the conviction may reflect a "compromise” verdict, under Louisiana's responsive verdict system, the jury has the option to convict the defendant of the lesser offense, even though the evidence clearly and overwhelmingly supported a conviction of the charged offense. See State v. Porter, 93-1106 (La. 7/5/94), 639 So.2d 1137, 1140.

      . Considering this conclusion, we do not consider the state’s argument that the evidence is admissible under Louisiana Code of Evidence article 412.2, which permits evidence of similar crimes. We note, however, that any determination of the applicability of that article would be problematic, because the facts of the alleged previous crime were not developed at trial.'

      . We have conducted the review required by Louisiana Code of Criminal Procedure article 920 and find no error that requires the conviction be reversed or the sentence be vacated.