Budd Const. Co., Inc. v. City of Alexandria
| Decision Date | 30 June 1981 |
| Docket Number | No. 8328,8328 |
| Parties | BUDD CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellees, v. CITY OF ALEXANDRIA, et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Gravel, Robertson & Brady, Camille F. Gravel, Jr. and David W. Robertson, Garrett, Ryland and Nunnally, B. Dexter Ryland, Alexandria, for defendants-appellants.
Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, Wray, Robinson, Mary & Kracht, W. P. Wray, Jr., Baton Rouge, for plaintiffs-appellees.
Before CULPEPPER, FORET and LABORDE, JJ.
Budd Construction Company, Inc. (Budd) and the Associated General Contractors of America, Inc., Louisiana Highway, Heavy, Municipal and Utilities Branch (AGC), brought this action to enjoin the City of Alexandria, Louisiana (the City) from entering into a contract with the Slocum Construction Company (Slocum) for the replacement of the Applewhite Street Bridge (the project) over the Chatelain Lake Canal located within the city.
Petitioners requested, and the trial court issued, a temporary restraining order (TRO) forbidding the City from entering into the contract with Slocum, and the trial court set a hearing date on petitioners' rule for a preliminary injunction against the City. Slocum had not been made a party to this action and it intervened therein. Slocum filed a motion to dissolve the TRO and sought damages and attorney's fees for its wrongful issuance. Thereafter, the City joined with Slocum in filing a joint motion for the dissolution of the TRO and it also sought damages and attorney's fees.
Petitioners filed an exception of no right and no cause of action arguing that Slocum, as an intervenor, had failed to allege an independent right or cause of action for which it sought relief. Petitioners prayed that Slocum's intervention and motion to dissolve the TRO be dismissed, but the trial court overruled the exception.
The City and Slocum filed joint exceptions of no cause of action and no right of action. They alleged in the exception of no cause of action that petitioners had failed to state any ground for the issuance of an injunction. They argued in the exception of no right of action that petitioners had failed to allege that they were taxpayers of the City or that Budd was the "lowest responsible bidder" on the project. The trial court overruled both exceptions.
The City then filed an exception of failure to join an indispensable party alleging that Slocum should be made a defendant in these proceedings and the trial court sustained the exception.
The TRO was extended twice by the trial court to allow time for hearings on petitioners' rule for a preliminary injunction and, during this time period, this Court denied an application for writs filed by the City and Slocum. The trial court then rendered judgment overruling the motions to dissolve the TRO and granted the preliminary injunction.
The City and Slocum appeal from the trial court's judgment and present three issues:
(1) Whether the temporary restraining order was wrongfully issued and, if so, are appellants entitled to damages and attorney's fees;
(2) Whether the trial court erred in granting the preliminary injunction and, if so, are appellants entitled to damages and attorney's fees; and
(3) Whether petitioners have standing to sue for injunctive relief.
The Alexandria City Council (the Council) adopted resolution number 1650-1980, on September 2, 1980, calling for the advertisement for bids on the project. The Council received two bids, one from Slocum, and the other from Budd. Budd's bid totaled $98,579.00, while Slocum's bid totaled $97,620.40, making it the apparent low bidder. However, Sam Craven (the City Attorney) ruled that Budd was the actual low bidder.
Craven based his ruling on the fact that the bid by Slocum contained a discrepancy. The discrepancy was found in connection with item # 5 of the bid form, which called for 570 square yards of Portland cement concrete paving slab including curb and gutter removed and replaced. The written unit price on the bid form was for $18.00 per square yard, while the price written in figures was $12.00 per square yard. Slocum's total bid price, using the $18.00 per square yard figure, amounted to $101,040.00, making it higher than the price contained in the bid submitted by Budd. However, the Council, relying on representations made by Slocum that it intended to be bound by the lower figure in its bid, decided, by a 4-3 vote, to award the contract to Slocum.
Budd and AGC instituted this action on November 4, 1980, and alleged that the action of the Council, in awarding the contract to Slocum, was a violation of the "Louisiana Public Bid Law" (LSA-R.S. 38:2184.1 et seq), the City's Home Rule Charter, and various ordinances and resolutions adopted by the Council.
The trial court rendered judgment on January 22, 1981, granting the preliminary injunction and denying appellants' motion to dissolve the TRO. That court then denied a motion for a partial new trial filed by the City and Slocum, and they were granted a devolutive appeal.
Appellants contend that the TRO was wrongfully issued and that the trial court erred in denying their motion to dissolve it.
LSA-C.C.P. Article 3612 provides, in pertinent part:
However, appellants take the position that this Court may review a trial court's order refusing to dissolve a TRO when an issue regarding such a refusal is presented on an appeal from the grant or denial of a preliminary injunction. We disagree and find that some of the jurisprudence cited by appellants clearly supports our decision that this Court has no power to hear an appeal from an order relating to a TRO under any circumstance, or is inapposite to the issue before us. 1
Appellants cite Amacker v. Amacker, 146 So.2d 672 (La.App.1 Cir. 1962), where defendants appealed from a judgment of the lower court dismissing their motion to set aside a TRO and granting a preliminary injunction sought by plaintiff. Amacker found that plaintiff possessed an adequate remedy at law and was not entitled to injunctive relief. Amacker then stated on page 676 that:
"In view of the foregoing, it follows that the temporary restraining order and preliminary injunction herein issued by the trial court were improvidently and improperly granted and must be dissolved and set aside."
We fail to see how Amacker could dissolve the TRO issued by the trial court since it no longer existed at that time. A TRO, by its very nature, is dissolved by operation of law once the trial court grants or denies the request for a preliminary injunction by the party having the TRO issued.
The Louisiana Supreme Court, in Powell v. Cox, 228 La. 703, 83 So.2d 908 (1955), stated, 83 So.2d on page 910 that:
See also Ducros v. St. Bernard Parish Police Jury, 200 La. 766, 8 So.2d 694 (1942); Austin v. Currie, 16 La.App. 375, 134 So. 723 (2 Cir. 1931); Albert Pick & Co. v. Stringer, 171 La. 131, 129 So. 731 (La.1930); Lyons v. Campbell, 216 So.2d 895 (La.App.2 Cir. 1968), per Judge (now Justice) Dixon concurring; Snowden v. Red River and Bayou Glaises Levee and Drainage District, 172 La. 447, 134 So. 389 (1931), certiorari dismissed, 284 U.S. 592, 52 S.Ct. 198, 76 L.Ed. 510 (1931).
In the action before us, the trial court signed an order on November 4, 1980, directing the issuance of the TRO requested by petitioners conditioned upon their furnishing bond. The trial court also ordered appellants to show cause on November 10, 1980, why a preliminary writ of injunction in the form and substance of the TRO should not issue during the pendency of these proceedings. The trial court extended the duration of the TRO when it failed to conclude a hearing on the rule for the preliminary injunction held on November 10, 1980. The matter was continued until November 17, 1980. The hearing on the rule for the preliminary injunction and on appellants' motion to dissolve the TRO was further held at that time and the matter was again continued until November 24, 1980, with another extension of the TRO ordered. The trial court then signed an order on November 25, 1980, pursuant to an agreement of all parties that the TRO be extended indefinitely until further order of the court. The hearing on petitioners' rule for a preliminary injunction and appellants' motion to dissolve the TRO was finally concluded on December 10, 1980, with the matter being taken under advisement. The trial court rendered its judgment on January 22, 1981, denying appellants' motion to dissolve the TRO and granting the preliminary injunction sought by petitioners.
We find that the TRO issued by the trial court ceased to exist by operation of law on January 22,...
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