H & O INVESTMENTS, LLC NO. 21-CA-188
VERSUS FIFTH CIRCUIT
PARISH OF JEFFERSON, THROUGH ITS COURT OF APPEAL PARISH PRESIDENT CYNTHIA LEE SHENG STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 814-440, DIVISION "B" HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING
November 24, 2021
SUSAN M. CHEHARDY CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson
AFFIRMED SMC FHW RAC COUNSEL FOR PLAINTIFF/APPELLANT, H & O INVESTMENTS, LLC Roy H. Maughan, Jr. Namisha D. Patel Joshua D. Roy
COUNSEL FOR INTERVENOR/APPELLEE, RAMELLI JANITORIAL SERVICES, INC. Michael A. Thomas
COUNSEL FOR DEFENDANT/APPELLEE, PARISH OF JEFFERSON W. Reed Smith CHEHARDY, C.J.
In this public bid matter, plaintiff-appellant, H&O Investments, LLC,
appeals the trial court’s ruling dismissing with prejudice its Petition for Injunctive
Relief and Declaratory Judgment. For the reasons that follow, we affirm the trial
court’s judgment.
FACTS AND PROCEDURAL HISTORY
Defendant-appellee, the Parish of Jefferson, issued an Advertisement for
Bids for a “Three Year Contract to Provide Grass Cutting Services
(Smooth/Rough) for the Jefferson Parish Department of Public Works – Parkways”
on December 2, 2020. The Contract requires the successful bidder to perform
regular mowing, weed eating, and line trimming, as well as landscape mulching
twice a year and tree trimming “as needed,” among other responsibilities.
The portions of the Parish’s Bid Specifications that are relevant to this
appeal are set out below. Under “Licensing,” the Bid Specifications state:
Bidders shall possess the following licenses:
Louisiana State Contractors’ Commercial License with the classification of SPECIALTY: LANDSCAPE, GRADING AND BEAUTI- FICATION. *** Bidders shall be licensed per LSA-R.S. 37:2150-2163 and shall furnish copies of the front and back of each required license. Failure to submit these copies will deem the bid non-responsive.
Louisiana Department of Agriculture & Forestry State Landscape Horticulturalist License Louisiana Department of Agriculture & Forestry Commercial Pesticide Applicator License for Category 3: Ornamental and Turf[1] Louisiana Department of Agriculture & Forestry Commercial Pesticide Applicator License for Category 6: Right-of-Way & Industrial application
1 Addendum #1 to the Bid Specifications, dated December 22, 2020, removed this particular licensure requirement.
21-CA-188 1 All required licenses shall be valid through the term of the contract.
“Part I Qualifications” of the Bid Specifications state:
MINIMUM EQUIPMENT
The Contractor must show proof of ownership, rental agreements and/or line(s) of credit to acquire the following minimum list of [mowing] equipment:[2]
“Part II Definitions” of the Bid Specifications further provide:
EQUIPMENT REQUIREMENTS
The bid shall include all equipment, operators, fuel, maintenance, and transportation. … The Contractor must provide Jefferson Parish with copies of registration certificates and/or lease agreements or documentation verifying an open line of credit for equipment specified in the minimum equipment list …
SUBCONTRACTORS
All mowing operations and related work must be performed by the Contractor. No subcontractors shall be allowed to perform these activities.
However, the Contractor may utilize a subcontractor for his chemical applications. The use of a subcontractor shall not relieve the Contractor the responsibility of ensuring the work meets the requirements of this contract. Additionally, the Parkways Department will not communicate directly with any subcontractors. All correspondence will be with the Contractor.
TREE TRIMMING
2 The list of minimum equipment includes: (24) String trimmers (minimum 25 cc) (12) Stick edgers (minimum 25 cc) (12) Backpack blowers (minimum 50 cc) (12) Manicure mowers with (60” or 72”) cutting decks (front belly mount) (2) Tractors (85 hp or greater) (2) Boom mower attachment (slope)(minimum 28’ reach) 15’ (minimum) rotary cutting deck Street sweeper (minimum 3 CY debris hopper)
21-CA-188 2 … All tree trimming operations shall be under direct supervision of a Louisiana licensed landscape horticulturalist. The Contractor shall utilize hand saw and loppers only. … The Contractor shall notify the Parkways Department prior to trimming any trees. … Tree trimming shall occur on an as-needed basis, but should be factored in to the inclusive unit price for each type of mowing cycle.
After reviewing the responsive submissions, the Parish determined that
Ramelli Janitorial Services, Inc. was the lowest responsible and responsive bidder,
and Rotolo Consultants, Inc. (“RCI”), was the second lowest bidder. H&O
Investments, LLC, which held the grass-cutting Contract with the Parish through
2020, was the third lowest bidder. H&O claims that its bid package included all
necessary forms and proof of applicable licenses, insurance, and equipment, in
accordance with the Bid Specifications, but neither Ramelli nor RCI strictly
complied with the specifications.
H&O lodged a bid protest with the Parish, which was denied. H&O then
filed a Petition for Injunctive Relief and Declaratory Judgment naming the Parish
of Jefferson, through its President, Cynthia Lee Sheng, as defendant, arguing that
because neither Ramelli nor RCI were responsive bidders, the Parish should be
enjoined from entering into a contract with either one.3 More specifically, H&O
argued that Ramelli did not “possess” the Agriculturalist license produced with its
bid, as the license names someone who is not a Ramelli employee. Additionally,
H&O claimed that subcontractors are prohibited from engaging in “mowing
related” activities, and tree trimming is “mowing related.” H&O further argued that
RCI did not provide proof either of its ownership of the necessary equipment or of
its ability to acquire the equipment listed in the Bid Specifications. Ramelli and
RCI intervened.
3 H&O’s request for a declaratory judgment asked the trial court to declare H&O the lowest responsible and responsive bidder for the three-year grass-cutting Contract or, alternatively, to declare that all bids were non-conforming and that new bids should be submitted.
21-CA-188 3 A preliminary injunction hearing was scheduled for February 25, 2021. The
parties and intervenors agreed on the record at the beginning of the hearing that the
hearing would address both the preliminary and permanent injunction requests.
The trial court heard testimony from Bryan Parks, the Director of Parkways for the
Parish and the drafter of the Bid Specifications; Jennifer Cafarella, who held the
Horticulturalist license Ramelli produced with its bid; and David Mahler, the
owner of H&O, the plaintiff-appellant.
Mr. Parks testified that, for purposes of determining whether work from a
subcontractor is permitted, tree trimming activities, while included as part of the
bid package as a whole, are not part of “mowing operations and related work,” as
tree trimming is performed less often than mowing and has separate requirements.
He explained that the horticulturalist license requirement was included in the Bid
Specifications because the Parish learned that a Louisiana licensed horticulturalist
must directly supervise mulching operations and any tree pruning or trimming
when the Department of Agriculture stopped previous contractors from performing
this work without licensed supervision. Mr. Parks further explained that chemical
applications are mowing related, or at least part of the mowing cycle, but that the
Bid Specifications specifically permit the Contractor to use subcontractors for
chemical applications. Moreover, Mr. Parks testified that subcontractors may be
used for anything other than mowing and mowing-related operations.
With regard to proving ownership of the necessary equipment, Mr. Parks
explained that a bidder only becomes a “Contractor” when the bidder has been
awarded the Contract and the Contract has been signed. The listed equipment
cannot be verified during the bid process, thus a bidder’s failure to comply with the
requirement that “[t]he Contractor must show proof of ownership, rental
agreements and/or line(s) of credit to acquire the following minimum list of
21-CA-188 4 [mowing] equipment” does not render the bid non-responsive, because no bidder is
a Contractor at the time it submits its bid.
Ms. Cafarella testified that she and her husband own Greg’s Lawn Service,
LLC, together. Greg’s Lawn Service has held a service contract with Ramelli since
2008 and receives a 1099 tax form annually from Ramelli. H&O’s owner, Mr.
Mahler, testified that H&O submitted proof of its line of credit with its bid to show
that it held or could obtain the proper equipment. On cross examination, Mr.
Mahler admitted that H&O had used a subcontractor for pine straw placement and
mulching one time in the past.
At the conclusion of the hearing, the trial court denied H&O’s request for
preliminary and permanent injunctive relief and dismissed H&O’s lawsuit with
prejudice. The trial court stated that it believed the Parish had acted in good faith in
selecting Ramelli as the lowest responsive and responsible bidder. The trial court
found Mr. Parks’ testimony regarding the licensure requirement and the Parish’s
interpretation of the meaning of “Contractor” to be particularly persuasive. H&O
timely appeals the trial court’s judgment.
DISCUSSION
H&O sets forth seven assignments of errors that essentially raise three
issues: (1) whether Ramelli’s bid submission was responsive in light of the fact
that the Horticulturalist license included with its bid belonged to another
person/entity, not to Ramelli or a Ramelli employee; (2) whether RCI’s bid
submission was responsive because it did not include proof that it owned the
necessary equipment, or the means to acquire the equipment necessary to perform
the Contract; and (3) whether the trial court erred in admitting the entire record of
the proceedings into evidence at the injunction hearing.
We review the trial court’s decision to deny preliminary or permanent
injunctive relief under the manifest error standard. Mary Moe, L.L.C. v. Louisiana
21-CA-188 5 Bd. of Ethics, 03-2220 (La. 4/14/04), 875 So.2d 22, 29; Zeringue v. St. James Par.
Sch. Bd., 13-444 (La. App. 5 Cir. 11/19/13), 130 So.3d 356, 359.
Louisiana’s Public Bid Law, La. R.S. 38:2211 et seq., prescribes the
conditions upon which public work may be done on behalf of the state or its
political subdivisions. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans
Exhibition Hall Auth., 04-211, 04-212 (La. 3/18/04), 867 So.2d 651, 656. The
purpose of the statute is to protect taxpaying citizens “against contracts of public
officials entered into because of favoritism and involving exorbitant and
extortionate prices.” Id.; see also A.M.E. Disaster Recovery Servs., Inc. v. St. John
Baptist Par. Sch. Bd., 10-500 (La. App. 5 Cir. 11/23/10), 54 So.3d 719, 722, writ
denied, 10-2831 (La. 2/11/11), 56 So.3d 1005. “A political entity has no authority
to take any action which is inconsistent with the Public Bid Law.” Broadmoor, 867
So.2d at 656 (citing La. Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch.
Bd., 586 So.2d 1354, 1362 (La. 1991)). When the threatened action of a municipal
body is “in direct violation of a prohibitory law,” a court may enjoin the threatened
action without showing irreparable injury. La. Associated Gen. Contractors, 586
So.2d at 1359.
The Public Bid Law requires that certain public contracts be let to the
“lowest responsible and responsive bidder who bid according to the bidding
documents as advertised[.]” La. R.S. 38:2212(A)(1)(a). This does not constrain the
public entity to accept the lowest monetary bid, rather, the public entity contracting
the work has wide discretion to determine bidder responsibility and may look to
financial ability, skill, integrity, business judgment, experience, reputation, quality
of previous work on contracts, and other similar factors bearing on the bidder’s
ability to successfully perform the contract. Broadmoor, 867 So.2d at 656 (citing
Housing Auth. of the City of Opelousas, La. v. Pittman Constr. Co., Inc., 264 F.2d
695, 698 (5th Cir. 1959)). However, when a public entity places certain
21-CA-188 6 requirements in its advertisements for bids and on its bid forms, it is bound by
those requirements and may not choose to waive them at a later date. Broadmoor,
867 So.2d at 657; La. R.S. 38:2212(A)(1)(a). Bid form requirements “must be
completely and accurately observed. The Public Bid Law could not be more clear
in stating that a bidder’s failure to comply with every detail can invalidate the bid.”
Barriere Constr. Co., L.L.C. v. Terrebonne Parish Consol. Gov’t, 99-2271 (La.
App. 1 Cir. 2/18/00), 754 So.2d 1123, 1127, writ denied, 00-801 (La. 5/5/00), 761
So.2d 546.
As to the Parish’s determination that Ramelli was the lowest responsive and
responsible bidder, H&O raises two issues – first, whether the requirement to
“possess” the appropriate license means the license must name the bidder (or a
bidder’s employee); second, if the license is not held in the bidder’s name, whether
a license held by Ramelli’s subcontractor violates the Bid Specification that
prohibits subcontractors from performing “mowing and mowing related activities.”
H&O argues that Ramelli did not possess the license it produced in
conjunction with its bid because that license is held by Ms. Jennifer Cafarella, who
is an employee/owner of Greg’s Lawn Service, LLC, not Ramelli, and her
horticulturalist license is officially associated with Greg’s, not Ramelli. According
to H&O, La. R.S. 3:3804(C) of the Louisiana Horticulture Law prohibits Ms.
Cafarella from associating her license with Ramelli.4 Further, according to H&O,
LA. ADMIN. CODE tit. 7, pt. XXIX, ch. 1, § 115, prohibits Ms. Cafarella from
holding her license with more than one entity.5
4 La. R.S. 3:3804(C) provides: “No personal shall receive fees, whether directly or indirectly, for engaging in a regulated profession, or advertise as engaged in a regulated profession, or solicit business in a regulated profession, unless the person holds a valid appropriate license issued by the commissioner, or has a regular employee who holds a valid appropriate license issued by the commissioner, or is employed by or is working under the direct supervision of a person who holds a valid appropriate license issued by the commissioner.” 5 LA. ADMIN. CODE tit. 7, pt. XXIX, ch. 1, § 115 (B) provides: “A person holding a license in a regulated profession may be the licensee for only one person or business. The licenses of all licensees regularly assigned to work in any outlet shall be prominently displayed at all times in a location accessible to the general public or any representative of the commission.”
21-CA-188 7 In opposition, the appellees, the Parish and Ramelli, both argue that the
horticulturalist license need not be in Ramelli’s name, and that Ramelli’s
submission of a subcontractor’s license is permitted and does not render the bid
non-responsive; the prohibition against subcontractors is only for “mowing
operations and related work,” and tree trimming does not fall within “mowing
operations and related work.” In support, the appellees rely upon Mr. Parks’
testimony that tree trimming, which the Bid Specifications indicate shall occur “as
needed,” is not part of “mowing and related activities.”
Here, the prohibition against use of subcontractors applies to “mowing
operations and related work,” with an exception carved out for chemical
applications that are related to mowing activities. In other words, a subcontractor
may perform chemical/pesticide application, notwithstanding the fact that this
function is mowing-related. Notably, the bidder must “possess” both a Commercial
Pesticide Applicator license and a Horticulturalist license. Under these
circumstances, if the Commercial Pesticide Applicator license may be held by a
subcontractor, we see no reason why possession of a license for purposes of
responding to a bid advertisement requires the license to be issued in the name of
the bidder or the bidder’s employee, so long as the work for which the license is
required does not fall within the list of activities for which subcontractors are
prohibited.
Moreover, we find no merit in H&O’s argument that tree trimming is a
mowing-related activity. In addition to the testimony of Mr. Parks, who indicated
that tree trimming occurs only “as needed,” and that it is not a mowing-related
activity, Addendum # 2 to the Bid Specifications clarifies that “every smooth cut
cycle shall include chemical application (non-selective herbicide), edging, grass
cutting (mowing), green debris removal, string trimming, sweeping/blowing and
trash removal (see PART II, DEFINITIONS).” This list of mowing-related
21-CA-188 8 activities does not include tree trimming. Further, the separate provision in Part II
of the Bid Specifications related to “Tree Trimming” mandates that “tree trimming
operations shall be under direct supervision of a Louisiana licensed landscape
horticulturalist” and requires that the Parish be notified any time tree trimming
occurs. Nothing in this section prohibits the use of subcontractors.
In addition, we find no merit to H&O’s argument that Ms. Cafarella is in
violation of La. R.S. 3:3804(C) or LA. ADMIN. CODE tit. 7, pt. XXIX, ch. 1, § 115.
The Bid Specifications indicate that tree trimming “shall be under direct
supervision of a Louisiana licensed landscape horticulturalist.” Pursuant to La.
R.S. 3:3804(C), Ramelli could be “working under the direct supervision of a
person who holds a valid appropriate license.” Use of the phrase “under direct
supervision” does not imply that an employer-employee relationship is required,
and we fail to read such a requirement into the statute. Similarly, we see no
impropriety under § 115, which states that a “person holding a license in a
regulated profession may be the licensee for only one person or business.” The
parties do not dispute that Ms. Cafarella’s license is associated only with Greg’s
Lawn Service, and as seen above, there is no specific prohibition against Greg’s
Lawn Service, as a subcontractor, directly supervising tree trimming for Ramelli.
We therefore find no manifest error in the trial court’s refusal to enjoin the Parish
from contracting with Ramelli on the basis that its bid was non-responsive.
Next, H&O argues that RCI should not have been named the second lowest
responsible and responsive bidder because RCI failed to include “proof of
ownership, rental agreements and/or line(s) of credit” for the necessary
equipment.6 In response, the Parish and RCI point out that this provision in the Bid
6 Part I of the Bid Specifications indicates that “[t]he Contractor must show proof of ownership, rental agreements and/or line(s) of credit to acquire the following minimum list of [mowing] equipment …”, and Part II of the Bid Specifications states: “[t]he Contractor must provide Jefferson Parish with copies of registration certificates and/or lease agreements or documentation verifying an open line of credit for equipment specified in the minimum equipment list[.]”
21-CA-188 9 Specifications refers only to the “Contractor,” not a “bidder.” Having already
determined that the trial court did not manifestly err in refusing to enjoin the Parish
from contracting with Ramelli as the lowest responsible and responsive bidder, we
pretermit any discussion of H&O’s assignments of error regarding RCI’s status as
the second lowest responsible and responsive bidder.
Lastly, with regard to the trial court’s admission of the entire record into
evidence, H&O timely objected at the hearing and therefore preserved its right to
assign the trial court’s ruling as error on appeal pursuant to La. Code Evid. Art.
103(A)(1). In conjunction with its objection to the admission of the record into
evidence, H&O further argued that the trial court failed to issue a written order
stating that the injunction hearing would be conducted by affidavit or partially with
affidavits, in compliance with La. C.C.P. art. 3609.7 H&O specifically objects to
the introduction into evidence of the affidavits of Bryan Parks, Cody Necaise, and
Robert Ramelli.
Erroneous evidentiary rulings are subject to a harmless error analysis.
Lapuyade v. Rawbar, Inc., 15-705 (La. App. 5 Cir. 4/13/16), 190 So.3d 1214,
1220, writs denied, 16-908, 16-916, 16-917 (La. 9/6/16), 199 So.3d 610-11.
We find no error in the trial court’s ruling admitting the entire record into
evidence. Alternatively, even if the trial court’s decision to admit the entire record,
including affidavits, into evidence was erroneous, the error is harmless, as it did
not affect the result reached or deprive any party of any substantial rights. La.
Code Evid. Art. 103(A); Lapuyade, 190 So.3d at 1220. Although the trial court
identified particular paragraphs of Mr. Parks’ affidavit in its oral reasons for
7 La. C.C.P. art. 3609 provides, in pertinent part: The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases. If the application is to be heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.
21-CA-188 10 judgment, the paragraphs to which the trial court referred are repetitive of or
encapsulated by Mr. Parks’ live hearing testimony. Where evidence is admitted
that is merely cumulative of other evidence in the record, any error in its admission
is harmless. Metairie Club Gardens Assoc., Inc. v. Parish of Jefferson, 16-139 (La.
App. 5 Cir. 12/28/16), 209 So.3d 1071, 1077. There is no indication that the trial
court relied upon the affidavits of Cody Necaise or Robert Ramelli in reaching its
ruling, and H&O provides no additional briefing or specific argument in this
regard.8 Finally, Article 3609 requires the trial court to order in writing that the
injunction will be heard on affidavits, and written notice shall be served upon the
defendant, not upon the plaintiff. The defendant (the Parish) and intervenors
(Ramelli and RCI) all waived Article 3609 notice requirements at the hearing.
Although the record does not show that the trial court ordered in writing that the
application would be heard upon affidavits, the hearing was not in fact held on
affidavits (only), as plaintiff-appellant was permitted to offer live testimony, upon
which the trial court relied in reaching its ruling. This assignment of error lacks
merit.
CONCLUSION
For the foregoing reasons, the trial court’s judgment, dismissing H&O
Investments, LLC’s Petition for Injunctive Relief and for Declaratory Judgment
with prejudice, is affirmed.
AFFIRMED
8 Uniform Rules—Courts of Appeal, Rule 2-12.4 (B)(4) provides: “All assignments of error and issues for review must be briefed. The court may consider as abandoned any assignment of error or issue for review which has not been briefed.” Restating an assignment of error in brief without argument or citation of authority does not constitute briefing. Deubler v. Bogalusa City Schools, 18-312 (La. App. 1 Cir. 9/21/18), 262 So.3d 393, 401 (citing State v. Wilson, 13-996 (La. App. 5 Cir. 5/21/14), 142 So.3d 275, 279-80).
21-CA-188 11 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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21-CA-188 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE R. CHRISTOPHER COX, III (DISTRICT JUDGE) JOSHUA D. ROY (APPELLANT) MICHAEL A. THOMAS (APPELLEE) W. REED SMITH (APPELLEE)
MAILED NAMISHA D. PATEL (APPELLANT) KEITH J. BERGERON (APPELLEE) ROY H. MAUGHAN, JR. (APPELLANT) TERRENCE L. BRENNAN (APPELLEE) ATTORNEYS AT LAW ATTORNEYS AT LAW 634 CONNELL'S PARK LANE 755 MAGAZINE STREET BATON ROUGE, LA 70806 NEW ORLEANS, LA 70130