Cdw Services, LLC v. City of New Orleans and Mayor Latoya Cantrell in Her Official Capacity as Mayor of the City of New Orleans

• Court: Louisiana Court of Appeal
• Decided: September 24, 2024
• Docket: 2024-CA-0152
• Status: Published

Opinion

CDW SERVICES, LLC * NO. 2024-CA-0152

VERSUS * COURT OF APPEAL CITY OF NEW ORLEANS AND * MAYOR LATOYA CANTRELL FOURTH CIRCUIT IN HER OFFICIAL CAPACITY * AS MAYOR OF THE CITY OF STATE OF LOUISIANA NEW ORLEANS *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2023-05493, DIVISION “F-14” Honorable Jennifer M. Medley ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Nakisha Ervin-Knott)

Frank Anthony Milanese FRANK A. MILANESE, PLC 650 Poydras Street, Suite 2708 New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT

Corwin M. St. Raymond ASSISTANT CITY ATTORNEY Donesia D. Turner CITY ATTORNEY 1300 Perdido Street, Room 5E03 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

Jeffrey K. Prattini PRATTINI LAW FIRM, L.L.P. 300 Board of Trade Place New Orleans, Louisiana 70130

COUNSEL FOR INTERVENOR/APPELLEE

APPEAL DISMISSED SEPTEMBER 24, 2024 JCL This is a public works contract case. Plaintiff/appellant, CDW Services, LLC

DLD (“CDW”), appeals the December 28, 2023 judgment denying its motion for new

NEK trial. The judgment is interlocutory and non-appealable. We lack appellate

jurisdiction, and therefore, we dismiss the appeal.

The underlying dispute stems from public bids for construction on a public

works project, entitled “Morris F.X. Jeff Sr. Pool Renovations, Proposal 2721,” for

defendant/appellee, the City of New Orleans (the “City”). CDW claims that it was

the lowest responsive and responsible bidder for the project. However, it submitted

the second lowest numerical bid, and the City awarded the contract to the lowest

numerical bidder, intervenor/appellee, Verius Property Group, L.L.C. d/b/a VPG

Construction (“VPG”). The following procedural history is relevant to our

consideration of the present appeal.1

On June 14, 2023, CDW filed a Petition for Temporary Restraining Order,

Preliminary and Permanent Injunction, Mandamus, and Declaratory Judgment,

1 A more detailed history of the case is set forth in this Court’s companion opinion, CDW Servs.,

LLC v. City of New Orleans, 24-0083 (La. App. 4 Cir. 9/24/24), --- So.3d ---.

1 seeking to enjoin the public contract award to VPG and order the City to award the

contract to CDW. The district court granted a temporary restraining order (“TRO”)

and ordered CDW to deposit security into the registry of the court. Subsequently,

on June 30, 2023, a hearing went forward on the preliminary injunction.

On October 5, 2023, the district court rendered judgment denying CDW’s

petition for preliminary injunction and awarding the City five percent (5%) of the

security posted, $14,550, and awarding VPG ninety-five percent (95%) of the

security posted, $276,450. The judgment was mailed on October 16, 2023. On

October 20, 2023, CDW filed a motion for new trial, which proceeded to a hearing

on December 4, 2023. On December 12, 2023, CDW filed a motion for devolutive

appeal of the October 5, 2023 judgment, which appeal was lodged in this Court

under docket number 2024-CA-0083.

On December 28, 2023, the district court rendered judgment denying the

motion for new trial. The judgment was mailed on January 12, 2024. On February

8, 2024, CDW filed a motion for devolutive appeal of the December 28, 2023

judgment. Upon lodging said appeal in this Court, VPG filed a motion to dismiss,

arguing that the December 28, 2023 judgment is interlocutory and not subject to

appeal.

Before reaching the merits of any appeal, the appellate court has the duty to

determine whether the court has proper jurisdiction, even when the parties do not

raise the issue. Succession of Hickman, 22-0730, p. 5 (La. App. 4 Cir. 3/15/23),

359 So.3d 584, 589. “An interlocutory judgment is appealable only when expressly

2 provided by law.” La. C.C.P. art. 2083(C). “A judgment that does not determine

the merits but only preliminary matters in the course of the action is an

interlocutory judgment.” La. C.C.P. art. 1841. A judgment denying a motion for

new trial is an interlocutory judgment. Russell v. Liberty Mut. Fire Ins. Co., 23-

0198, p. 4 (La. App. 4 Cir. 9/14/23), 373 So.3d 83, 86 (quoting Barham, Warner &

Bellamy, L.L.C. v. Strategic All. Partners, L.L.C., 09-1528, p. 4 (La. App. 4 Cir.

5/26/10), 40 So.3d 1149, 1151). See also La. C.C.P. art. 1914(C).

The denial of a motion for new trial is generally a non-appealable

interlocutory judgment; however, an appellate court “may consider interlocutory

judgments as part of an unrestricted appeal from a final judgment.” State ex rel.

Dep’t of Soc. Servs. v. Whittington, 15-1118, p. 11 (La. App. 4 Cir. 5/18/16), 193

So.3d 1234, 1241. Also, an appellate court construes an appeal of a judgment

denying a new trial as an appeal of the judgment of the merits of the case where the

appellant’s brief makes clear that the appellant intended to appeal the merits of the

case. Hickman, 22-0730, p. 6, 359 So.3d at 590. Those circumstances are not

present here. Quite the opposite, as VPG points out, CDW has already separately

appealed the merits of the case, and its devolutive appeal of the October 5, 2023

judgment was lodged in this Court under docket number 2024-CA-0083. While

CDW argues that the December 28, 2023 judgment is appealable because it

“confirms” the relief awarded in the October 5, 2023 judgment, we find no support

for such an assertion. This Court lacks appellate jurisdiction over the judgment

denying the motion for new trial.

3 We recognize that situations exist in which an appellate court may exercise

its discretion to convert the appeal of an interlocutory judgment that is not

immediately appealable to an application for supervisory writ. Russell, 23-0198, p.

3, 373 So.3d at 85. CDW does not ask this Court to exercise its supervisory

jurisdiction, and we nevertheless find that the circumstances are not present for us

to exercise our discretion. As our Court has explained, two conditions must be met:

(i) The motion for appeal has been filed within the thirty- day time period allowed for the filing of an application for supervisory writs under Rule 4–3 of the Uniform Rules, Courts of Appeal.

(ii) ... [T]he circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation.

McGinn v. Crescent City Connection Bridge Auth., 15-0165, pp. 4-5 (La. App. 4

Cir. 7/22/15), 174 So. 3d 145, 148 (quoting Mandina, Inc. v. O’Brien, 13-0085, p.

8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104) (other citations omitted).

We find that neither condition is satisfied. The first condition is not met

because the motion for appeal was not filed within thirty days of the judgment. The

second condition is also not satisfied. Judicial efficiency will not be served in

having this Court duplicate its review of the October 5, 2023 judgment, both in a

devolutive appeal and supervisory writ. Moreover, reversal of the district court’s

denial of a new trial will not terminate the litigation.

4 The December 28, 2023 judgment is non-appealable, and we cannot convert

the present appeal to an application for supervisory writ. For the reasons set forth

herein, we dismiss the appeal.

APPEAL DISMISSED