Constr. Diva, L.L.C. v. New Orleans Aviation Bd.

• Decision Date: 14 December 2016
• Docket Number: NO. 2016–CA–0566,2016–CA–0566
• Citation: 206 So.3d 1029
• Parties: CONSTRUCTION DIVA, L.L.C. v. NEW ORLEANS AVIATION BOARD, et al.
• Court: Court of Appeal of Louisiana — District of US

206 So.3d 1029

CONSTRUCTION DIVA, L.L.C.
v.
NEW ORLEANS AVIATION BOARD, et al.

NO. 2016–CA–0566

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 14, 2016

Albert J. Nicaud, Jeffrey M. Siemssen, NICAUD & SUNSERI, LLC, 3000 18th Street, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT, CONSTRUCTION DIVA, L.L.C.

Patricia S. LeBlanc, Michael L. Fantaci, Jacob G. Powell, LEBLANC FANTACI VILLIO, LLC, 3421 North Causeway Boulevard, Suite, 201 Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE, CITY OF NEW ORLEANS, BY AND THROUGH THE NEW ORLEANS AVIATION BOARD

(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Sandra Cabrina Jenkins )

PAUL A. BONIN, JUDGE

Construction Diva, L.L.C., responded to an Invitation to Bid on a publicly bid contract, issued by the City of New Orleans on behalf of the New Orleans Aviation Board, to provide landscaping maintenance services for properties owned by the Aviation Board.¹ The contract called for, among other things, forty percent participation by certified disadvantaged business entities. Although it had been certified by the City as a disadvantaged business entity, and had made the numerically lowest bid for the landscaping contract, Construction Diva's bid was rejected because it was

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not certified as a disadvantaged business in the field of landscaping, but rather in residential/industrial construction and renovation. Construction Diva, to no avail, protested the City's rejection of its bid. It then filed suit against the City, alleging that it improperly denied its bid in violation of the Louisiana Public Bid Law. See La. R.S. 38:2212, et seq . Construction Diva, accordingly, asked the trial court to either enjoin the City from awarding the contract to any entity other than it, or issue a writ of mandamus compelling the City to award it the contract. The trial court denied Construction Diva's request for both a preliminary injunction and a writ of mandamus.

Construction Diva appealed the judgment denying its request for a preliminary injunction, which appeal is specially authorized by law. See La. C.C.P. arts. 1841, 2083 C, 3612 B. The denial of a request for a writ of mandamus is likewise an appealable judgment. See, e.g., Clothesline Laundromat, Inc. v. City of New Orleans , 11–1578 (La. App. 4 Cir. 8/1/12), 98 So. 3d 901. Having reviewed the record and the applicable law, we cannot say that the trial judge abused her discretion in denying Construction Diva's request for either a preliminary injunction or a writ of mandamus. We explain our decision below.

I

We first discuss this matter's factual and procedural history.

On August 7, 2015, the City published an invitation to bid upon a contract entitled "Airport Property Landscaping Annual Maintenance," in which the winning bidder would provide landscaping services to maintain specified "landscape areas throughout the airport site on a full time basis, as well as installation of supplemental plant materials." Significantly, the bidding documents mandate a forty percent participation in the contract by a certified State/Local Disadvantaged Business Enterprise.²

Construction Diva, which the City certified as a disadvantaged business on April 25, 2014, submitted a bid and averred that it satisfied the project's forty percent disadvantaged business requirement. The City received several other bids, all of which it opened on October 20, 2015. The lowest numerical bid was submitted by Construction Diva, while the next lowest bid was submitted by Little Computer Solutions, L.L.C. However, on November 16, 2015, the City, by way of correspondence, informed Construction Diva that its bid was non-responsive: "Bidder failed to satisfy the SLDBE requirement. Construction Diva, LLC is not a certified SLDBE in the area of landscaping. We are unable to count Construction Diva, LLC's participation toward the SLDBE goal. As such, the attainment is 0% and does not comply with the SLDBE requirement for the project." The City accordingly, awarded the contract to Little Computer Solutions. Construction Diva timely filed a bid protest, which the City denied.

Shortly thereafter, Construction Diva filed suit against the City and the Aviation Board. It alleged that the City improperly denied its bid because the bid documents do not mandate that the responsive bidder have landscaping specified as a provided service on its disadvantaged business application. Construction Diva, accordingly, asserted that the City's rejection of its bid

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conflicts with the Louisiana Public Bid Law. See La. R.S. 38:2212, et seq. Contending that the City's actions violated a prohibitory law, Construction Diva asked the trial court to issue a temporary restraining order prohibiting the City from awarding the contract at issue to any bidder other than Construction Diva, or to commence work under the contract pending the results of the subsequent hearing on its request for a preliminary injunction. Construction Diva alternatively prayed for the issuance of a writ of mandamus ordering the City to award the landscaping contract to Construction Diva. The trial judge granted the temporary restraining order and set a show-cause hearing on Construction Diva's request for a preliminary injunction.

The City subsequently filed an opposition to Construction Diva's petition. Little Computer Solutions filed a petition of intervention in which it adopted the positions set out by the City. The parties appeared before the trial court on March 8, 2016, to argue the merits of Construction Diva's request for injunctive relief. After receiving exhibits and listening to the parties' respective arguments, the trial court at the close of the hearing orally denied Construction Diva's requests for both a preliminary injunction and a writ of mandamus. The trial judge signed a written judgment to this effect on March 14, 2016. Construction Diva timely sought appellate review, and is now before us devolutively.³

II

We turn now to analyze Construction Diva's arguments on appeal. Specifically, Construction Diva asks this Court to reverse the trial court's judgment, thereby compelling the City to award it the landscaping contract. In support, it argues that the trial court erred when it failed to conclude that the City acted arbitrarily and capriciously when it rejected its bid because it did not have landscaping listed on its disadvantaged business certification. The City's actions were arbitrary and capricious, Construction Diva claims, because its insistence that Construction Diva be certified in landscaping effected an impermissible deviation from the bid documents and the public bid law. Having reviewed the record, however, we conclude that the trial judge did not abuse her discretion in denying Construction Diva's request for a preliminary injunction because it failed to prove that it will suffer irreparable harm in the absence of injunctive relief given that it failed to establish that the City impermissibly deviated from the bid documents or violated the dictates of the public bid law. We also conclude that the trial court did not abuse her discretion in denying the request for a writ of mandamus.

A

We first analyze Construction Diva's arguments regarding the trial court's refusal to grant its request for a preliminary injunction.

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1

"A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits." Smith v. Brumfield, 13–1171, p. 5 (La.App. 4 Cir. 1/15/14), 133 So.3d 70, 74. Injunctive relief is an equitable remedy, which is ordinarily only available when a party has no adequate legal remedy. Cf. West v. Town of Winnsboro, 252 La. 605, 211 So. 2d 665, 670 (La. 1967) (on rehearing) ("By adequate remedy at law is meant one which is as speedy, efficient, and complete as the remedy in equity."). See also C. Napco, Inc. v. City of New Orleans , 06–0603, p. 6 (La.App. 4 Cir. 3/7/07), 955 So.2d 155, 160 ("An injunction is a harsh, drastic remedy that should only issue where the petitioner is threatened with irreparable harm and has no adequate remedy at law.").

A "court may hear an application for a preliminary injunction ... upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases." La. C.C.P. art. 3609. "A preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing." La. C.C.P. art. 3602. Ordinarily, to prevail in the district court on a petition for preliminary injunction, the petitioner is required to establish by prima facie evidence that: 1) he will suffer irreparable injury, loss, or damage if the motion for preliminary injunction is not granted; and 2) he is entitled to a preliminary injunction through at least a showing that he will likely prevail on the merits of the case. See Historic Restoration, Inc. v. RSUI Indem. Co. , 06–1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208 ; La. C.C.P. art. 3601. The prima facie standard of proof to obtain a preliminary injunction is less than that required for a permanent injunction. See Smith ,...