Opinion
No. 2020-CC-01347
11-24-2020
BOH BROS. CONSTRUCTION CO. L.L.C. v. CITY OF NEW ORLEANS and The Honorable Latoya Cantrell, in Her Official Capacity as the Mayor of New Orleans and Hard Rock Construction, L.L.C.
Writ application denied.
Weimer, J., concurs and assigns reasons.
Hughes, J., would grant.
WEIMER, J., concurring.
At issue is whether the City of New Orleans may suspensively appeal a writ of mandamus that requires it to award a public works project to Boh Bros. Construction Co., L.L.C. (Boh Bros.), where the City failed to timely appeal the related preliminary injunction.
Boh Bros. contends that permitting a suspensive appeal of a mandamus order should not be allowed under these circumstances because it frustrates the purpose of Public Bid Law, which is to expediently award public contracts. Further, while the City failed to timely appeal the preliminary injunction, it is getting a "second bite at the apple" through the suspensive appeal of the writ of mandamus.
Boh Bros. makes a persuasive argument that permitting a suspensive appeal under these facts thwarts the purpose of the Public Bid Law, which seeks to expediently award public works contracts to the lowest bidder. Another consideration is that judicial economy does not appear to be served by granting the City's motion for suspensive appeal where the City failed to timely appeal the preliminary injunction. Significantly, the hearing on the permanent injunction is set for November 30, 2020. Once a final judgment is rendered after that hearing, all parties will have an opportunity to appeal, and all legal arguments can be addressed concerning the award of the contract. By granting the suspensive appeal, there will be piecemeal litigation of the trial court's rulings.
At the outset, I note the City's appeal of the preliminary injunction was clearly untimely, as the court of appeal found the appeal of the preliminary injunction was filed outside of the fifteen-day delay set forth in La. C.C.P. art. 3612(C). The City did not seek review of this ruling. Therefore, the sole issue presented for the court's consideration is whether the court of appeal erred in finding the City is entitled to a suspensive appeal of the mandamus judgment.
While this court has not passed on this precise issue in the context of the Public Bid Law, the opinion in Felix v. St. Paul Fire and Marine Ins. Co. , 477 So.2d 676 (La. 1985), touched on the issue. In Felix , the plaintiff filed a medical malpractice action, and the court awarded a judgment of $300,000 against the health care provider. The judgment directed the commissioner of insurance to comply with former La. R.S. 40:1299.44(B) (redesignated as La. R.S. 40:1231.4(B) ), which required him to instruct the treasurer to begin securing funds for the verdict from the malpractice fund. The commissioner and the Patient's Compensation Fund intervened and sought to devolutively appeal the judgment. In response, the plaintiff filed a petition for mandamus ordering the commissioner to comply with the judgment. The trial court granted the mandamus, and the commissioner sought to suspensively appeal the mandamus judgment. The trial court denied the suspensive appeal, but the court of appeal reversed and ordered the appeal be granted. This court granted writs and reversed the judgment insofar as it granted a suspensive appeal. In an opinion by Justice Marcus, the court stated:
Finally, we must decide if the court of appeal was correct in granting the commissioner and the fund a suspensive appeal from the mandamus judgment.
The articles of the Louisiana Code of Civil Procedure pertaining to mandamus do not regulate or otherwise limit the manner in which a mandamus judgment may be appealed. Hence, we must look to the articles on appeals for guidance. La. Code Civ.P. arts. 2082 - 2087, 2121 - 2124. In absence of authority to the contrary, a suspensive appeal from a mandamus judgment has been allowed by our courts. State ex rel. Resweber v. Durand , 112 La. 754, 36 So. 672 (1904) ; Rosteet v. City of Lake Charles , 215 So.2d 668 (La.App. 3d Cir.), writ denied, 253 La. 301, 217 So.2d 406 (1968).
The court of appeal, in allowing a suspensive appeal, reasoned that the commissioner and the fund were not parties to the medical malpractice action. Moreover, the judgment ordering the commissioner to comply with La. R.S. 40:1229.44(B) was no more than a gratuitous reference to the statute.
As we stated earlier, the only party defendant in a medical malpractice action is the health care provider. However, the commissioner and the fund may intervene for the purpose of appealing an excess judgment against the fund. The act requires only that when a final judgment over one hundred thousand dollars is rendered in a trial or an arbitration or a settlement, the commissioner shall issue a voucher or other appropriate request to the state treasurer who shall then issue a warrant in the amount of the claim against the fund. Thus, we find that the commissioner was specifically ordered to perform his duties when he did not take a suspensive appeal from the final judgment rendered in the malpractice action. A suspensive appeal from the mandamus judgment would be tantamount to an untimely suspensive appeal from the trial court judgment. The commissioner should not be allowed a second chance to circumvent the performance of his duties under La. R.S. 40:1299.44(B). Accordingly, in the instant case , the court of appeal erred in allowing the commissioner and the fund to appeal suspensively from the mandamus judgment. [Emphasis added].
Felix , 477 So.2d at 682-83.
Boh Bros. analogizes the instant case to Felix . Essentially, it asserts the mandamus action and the preliminary injunction ruling are closely intertwined. Thus, it argues that allowing the City to suspensively appeal the mandamus judgment would in effect give it a "second bite at the apple" even though it failed to appeal the preliminary injunction.
While there are some similarities between Felix and the instant case, I believe Felix arose under very unique facts. Most notably, the court in Felix found the statute in that case imposed purely ministerial duties on the commissioner, and the plaintiff was required to seek mandamus when the commissioner refused to perform those duties and took a devolutive (rather than suspensive) appeal from the original judgment on the merits:
We consider that La.R.S. 40:1299.44(B)(2)(a) imposes in clear and unequivocable terms purely ministerial duties upon the commissioner. When he refused to perform these duties and appealed devolutively, not suspensively, the claimant had no recourse but to request the issuance of a writ of mandamus, compelling the commissioner to perform the duties set forth in La. R.S. 40:1299.44(B)(2)(a).
Felix , 477 So.2d at 682.
In contrast, the City in the instant case did what the commissioner did not do in Felix –namely, the City filed a timely request for a suspensive appeal from the mandamus portion of the judgment, which ordered it to award the bid to Boh Bros. I acknowledge that allowing a suspensive appeal of the mandamus action could in effect allow a "backdoor" suspensive appeal of the preliminary injunction, even though La. C.C.P. art. 3612(B) provides an order granting a preliminary injunction "shall not be suspended during the pendency of an appeal unless the court in its discretion so orders."
However, this same restrictive language does not apply to appeals of mandamus judgments. Rather, such appeals are governed by the general language of La. C.C.P. art. 2123(A), which provides, "[e]xcept as otherwise provided by law , an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following. ..." (Emphasis added.) As Felix itself recognized, the jurisprudence dating back over a century holds "[i]n absence of authority to the contrary, a suspensive appeal from a mandamus judgment has been allowed by our courts." Id . , 477 So.2d at 682. Boh Bros. is unable to cite any statutory provisions making a suspensive appeal unavailable in a public bid case. Thus, while the City is unable to suspensively appeal the portion of the judgment granting the preliminary injunction, there are no restrictions on its ability to take a suspensive appeal from the portion of the judgment granting mandamus.
I admit this interpretation creates a "limbo situation," where the City is enjoined from awarding the contract to the lowest bidder, but the judgment ordering it to award the contract to Boh Bros. is suspended until the appeal is resolved. Indeed, Boh Bros. might prevail on its request for a permanent injunction, but could not obtain relief until the appeal of the mandamus action is decided. However, Boh Bros. has the option of requesting the appeal be heard in an expedited fashion. Moreover, to the extent the interplay of these provisions creates an inequity, the matter addresses itself to the legislature, not the courts.
Of course, at this point, it is unclear whether Boh Bros. will prevail on its request for permanent injunction, which is not set to be heard until November 30, 2020. Moreover, even if it did, it is possible the City may appeal and the trial court could exercise its discretion to stay the ruling pending the appeal.