985 So. 2d 80

BARRIERE CONSTRUCTION CO., L.L.C. v. TANGIPAHOA PARISH GOVERNMENT.

No. 2007 CW 2367.

Court of Appeal of Louisiana, First Circuit.

March 5, 2008.

*81Michael R.C. Riess, Stuart G. Richeson, Kingsmill Riess, LLC, New Orleans, LA, for Plaintiff-Relator, Barriere Construction Co., L.L.C.

Scott M. Perrilloux, District Attorney, Clifton T. Speed, Assistant District Attorney, Greensburg, LA, for Defendant-Respondent, Tangipahoa Parish Government.

Before PARRO, KUHN, and DOWNING, JJ.

PER CURIAM.

I ¡.At issue herein is whether the trial court properly granted a political subdivision’s motion for a protective order, thereby limiting the scope of information available to the judgment creditor in a judgment debtor examination of the political subdivision.

In 2004, Barriere Construction Co., L.L.C. (“Barriere”), as the general contractor, entered into a contract with the Tangipahoa Parish Government (“the Parish”), as the owner, for a road improvement project entitled “Phase XI Overlay Project No. 0403-19” (“the Project”). During the course of the Project, Barriere asserts that it performed work beyond the original scope of the Project, for which the Parish refused to pay Barriere.

In 2005, Barriere filed suit against the Parish, seeking to recover the cost of the extra work performed. In March 2007, Judge Robert H. Morrison, III granted summary judgment in favor of Barriere and against the Parish in the amount of Two Hundred Fifty-Three Thousand, Six Hundred Twenty-Three and 16/100 Dollars ($253,623.16), plus interest and costs. No appeal was taken from the judgment and the judgment remains unsatisfied.

Thereafter, in August 2007, Barriere filed a broad judgment debtor rule against the Parish, seeking to determine if there were funds available from which it could satisfy the judgment.1 In response to the *82judgment debtor rule, the Parish 13filed a motion to quash, or in the alternative, for a protective order. The Parish urged that its assets are exempt from seizure under the Louisiana Constitution and that Barri-ere had no legal basis to compel the execution of the judgment or for forcing payment of the judgment. After a hearing, the district court denied the Parish’s motion to quash, but granted the motion for a *83protective order. The district court limited the scope of Barriere’s judgment debtor examination to the “existence and amount of any separate account established by [the Parish] for the payment of judgment and legal claims, and to the existence and remaining amount of any segregated account maintained by [the Parish] for the specific construction project which was the basis of this lawsuit.” Barriere has timely filed the underlying writ application, seeking review of the trial court’s ruling granting the Parish’s protective order.

DISCUSSION

Barriere contends that while the district court did not provide written or oral reasons for its ruling, it presumably issued the protective order based on the Parish’s argument that the sole purpose of a judgment debtor rule is to aid in the |4execution of judgment, and since the Parish’s property and funds are not subject to seizure under Louisiana law, Barriere should not be allowed to conduct a judgment debtor rule. Barriere avers that while the district court and the Parish are correct that public property and public funds of a political subdivision are not subject to seizure to satisfy a judgment,2 that does not immunize such entities from a judgment debtor examination3 or limit the scope of the examination to determine if funds have been appropriated. Barriere notes that the scope of the judgment debt- or examination is broad and should be liberally construed in its favor in order to foster its obvious purpose and intent. See e.g. Dunn & Bradstreet, Inc. v. Harrison, 289 So.2d 316, 317 (La.App. 1 Cir.1973).

Barriere notes that the Louisiana Supreme Court has ruled that political subdivisions of the state are subject to judgment debtor examinations. See Fontenot v. State Through Dept. of Highways, 355 So.2d 1324 (La.1978), Hill on Behalf of Williams v. City of New Orleans, 549 So.2d 858 (La.1989), and Fire Fighters Local 632 v. City of New Orleans, 549 So.2d 858 (La.1989). Moreover, Barriere cites North Cent. Utilities, Inc. v. East Columbia Water Distr., 516 So.2d 1268 (La.App. 2 Cir.1987), wherein the Second Circuit acknowledged that property of the judgment debtor water district was exempt *84from seizure and that the judgment could only be satisfied out of funds appropriated for that purpose, but held:

Whether information developed by a judgment debtor examination in this case will lead to some other remedy which the judgment creditor may employ to enforce collection of its judgment, or support some other basis for relief, we are not called upon to decide. However, in Fontenot, supra, the Louisiana Supreme Court has clearly held that plaintiff is entitled to conduct a judgment debtor examination under the circumstances we find here. The trial court was in error in denying the plaintiff that relief.

Id. at 1272. Therefore, the court held that the judgment creditor was entitled to proceed with the judgment debtor examination. The Louisiana Supreme Court, in a case decided after North Central Utilities, issued the following ruling:

GRANTED: As the court of appeal correctly noted, a judgment creditor is entitled to examine his debtor even though the latter is a public body. Fontenot v. State, et al[.], 355 So.2d 1324 (La.1978). However, the examination must be conducted with regard to legal limitations on executing the subject judgment. For example, examination about property owned by the City of New Orleans is pointless because public property is exempt from seizure. LSA-Const. art. 12, § 10(C).
The trial court is instructed to allow the judgment debtor examination to be conducted, but to make such protective orders as are appropriate, after giving the parties an opportunity to be heard.

Hill, 549 So.2d at 858. Therefore, under the supreme court’s ruling in Hill, the district court can issue a protective order in favor of a political subdivision to limit the judgment creditor to seeking only information about property that may be used to satisfy its judgment.

Barriere contends that it seeks to develop information regarding two potential sources of funds that might be used to satisfy its judgment: (1) money in possession of the Parish that does not belong to the Parish and (2) any other funds that have been appropriated by the Parish. Barriere contends that if the Parish is in possession of funds that do not belong to it or is in possession of funds that had been appropriated for the Project or otherwise to pay judgments, then those funds are available for seizure to satisfy the judgment.

Regarding the first potential source of funds, Barriere contends that funds in the Parish’s possession that do not belong to the Parish are not exempt from seizure. Barriere cites Firefighters’ Ret. Sys. v. Landrieu, 572 So.2d 1175 (La.App. 1 Cir. 1990), writ denied, 575 So.2d 811 (La.1991), wherein the state treasurer was in possession of money belonging to the firefighters and police ^retirement systems, and the trial court ordered the treasurer to turn those funds over to the state retirement system. On appeal, the treasurer argued that the trial court’s order violated the constitutional provision that no state funds shall be subject to seizure. In upholding the trial court’s decision, this court found that the money in the state treasurer’s possession did not constitute state funds, but rather belonged to the retirement systems, and that the prohibition against seizure of the funds did not apply. Although Barriere opines that it should be able to ascertain whether the Parish possesses funds that do not belong to it, the cited jurisprudence merely stands for the *85proposition that these non-exempt funds can be sought by their rightful owner. As such, even assuming that Barriere would discover non-exempt funds that belong to another entity, Barriere could not seize those funds to satisfy its judgment.

As to the second potential source of funds, Barriere asserts that it seeks by its judgment debtor examination to develop information concerning whether the Parish has made any other “appropriations” of funds. If any funds have been appropriated, Barriere asserts that a writ of mandamus would be available to compel the payment of those funds to Barriere to satisfy its judgment. In support of this proposition, Barriere cites Newman Marchive P’ship, Inc. v. City of Shreveport, 42,073 (La.App. 2 Cir. 3/21/07), 962 So.2d 1075 (on rehearing), where the court held that the City of Shreveport had “appropriated” funds to pay the judgment at issue when it established a “retained risk fund,” which was set aside to pay claims and judgments against it, even though funds for the specific judgment at issue had not been appropriated. The Second Circuit indicated that it read La. R.S. 13:5109(B)(2) “to allow mandamus to issue under these facts [insofar as] [t]he City appropriated up to $15,000,000.00 into a special account from which to pay legal settlements and judgments. These funds were appropriated to pay final judgments, and [plaintiff] had and has a final judgment.” Id. at 1082-83. While we recognize the broad definition the Second Circuit assigned to the term “appropriated,” we note that the Louisiana Supreme Court has granted writs in the Newman case. See Newman, 2007-1890 (La.11/21/07), 967 So.2d 527. Moreover, unlike the City of Shreveport, the Parish contends that it has not set up a fund to pay judgments rendered against it. Even assuming that the Parish has set up such a fund, the trial court’s ruling allows Barri-ere to question the Parish as to the “existence and amount of any separate account established by [the Parish] for the payment of judgment and legal claims.” As such, although we are not considering the efficacy of the Second Circuit’s ruling, we find that the trial court 17properly limited the judgment debtor examination within the confines of the Newman decision.

While we understand Barriere’s position, we are unable to provide any redress if the Parish has not appropriated funds to pay Barriere’s judgment. The sole remedy at law for satisfaction of a judgment against the Parish is provided in La. R.S. 13:5109(B), which provides that a judgment may be paid only out of “funds appropriated for that purpose by the political subdivision.” Moreover, the judiciary is prohibited by the Louisiana Constitution from compelling the legislature to appropriate funds to pay Barriere’s judgment, because a writ of mandamus is appropriate only to compel the accomplishment of ministerial, non-discretionary acts. Hoag v. State, 2004-0857, p. 9 (La.11/1/04), 889 So.2d 1019, 1025. Because the judgment debtor examination must be conducted with regard to legal limitations on executing the subject judgment, we find that the trial judge properly limited the scope of the examination. Accordingly, we hereby deny Barriere’s writ application.

WRIT DENIED.

Barriere Construction Co. v. Tangipahoa Parish Government
985 So. 2d 80

Case Details

Name
Barriere Construction Co. v. Tangipahoa Parish Government
Decision Date
Mar 5, 2008
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985 So. 2d 80

Jurisdiction
Louisiana

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