NGA 911, LLC * NO. 2022-CA-0458
VERSUS * COURT OF APPEAL ORLEANS PARISH * COMMUNICATION DISTRICT FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-10884, DIVISION “F-14” Honorable Jennifer M Medley ****** Judge Tiffany Gautier Chase ****** (Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase)
Murphy James Foster, III Carroll Devillier, Jr. David C. Fleshman Kelsey A. Clark BREAZEALE SACHSE & WILSON, LLP One American Place, 23rd Floor Baton Rouge, LA 70821
COUNSEL FOR PLAINTIFF/APPELLEE
Benjamin M. Chapman LAFLEUR & LABORDE, L.L.C. 6160 Perkins Road, Suite 225 Baton Rouge, LA 70808
Juan J. Lizarraga LAFLEUR & LABORDE, L.L.C. 620 Andrew Higgins Boulevard, Suite 2012 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED AND REMANDED DECEMBER 8, 2022 1
TGC TFL JCL Orleans Parish Communications District (hereinafter “OPCD”) seeks review
of the trial court’s April 12, 2022 judgment granting the petition for preliminary
injunction filed by NGA 911, LLC (hereinafter “NGA”). After consideration of the
record before this Court, and the applicable law, we reverse the judgment of the
trial court and remand the matter for further proceedings.
Facts and Procedural History
The underlying facts of this case have been previously articulated by this
Court:
On August 20, 2020, OPCD entered into a Master Service Agreement [] with AT&T Corp. ([hereinafter] “AT&T”) for the modernization of its existing 9-1-1 emergency communication infrastructure. On December 21, 2020, NGA filed a petition for preliminary and permanent injunction and declaratory judgment. NGA sought to enjoin and nullify the contract between OPCD and AT&T. The petition alleged that OPCD violated Louisiana Public Bid Law by awarding a public contract to AT&T without a competitive bid.
NGA 911, LLC v. Orleans Par. Commc’n Dist., 2021-0287, p. 1 (La.App. 4 Cir.
1/27/22), 337 So.3d 984, 987. This Court found the trial court erred in cumulating
the actions for preliminary and permanent injunctive relief, granting a permanent
injunction absent a full evidentiary hearing and granting declaratory relief. Id.,
1 2021-0287, pp. 12-13, 337 So.3d at 993. After vacating the trial court’s previous
judgment granting the petition for preliminary injunction, this Court remanded the
matter for further proceedings. Id., 2021-0287, p. 13, 337 So.3d at 993.
On February 4, 2022, NGA filed a “motion to set expedited hearing on
preliminary injunction.” NGA once again sought to enjoin the contract between
OPCD and AT&T on the grounds that the contract was awarded in violation of
Louisiana Public Bid Law pursuant to La. R.S. 38:2212, et seq., or alternatively,
violated the request for proposals outlined in La. R.S. 38:2234 through 2237. The
matter was heard by the trial court on March 18, 2022. By judgment dated April
12, 2022, the trial court granted NGA’s petition for preliminary injunction and
prohibited OPCD “from proceeding forward with the terms and conditions of the
AT&T Agreement until such time as the [petition for permanent injunction and
declaratory judgment] filed by Plaintiff [NGA] is decided.” This appeal followed.1
Assignments of Error
On appeal, OPCD asserts two assignments of error: (1) the trial court erred
in granting NGA’s request for preliminary injunctive relief; and (2) the trial court
erred in finding that the AT&T contract is subject to the Louisiana Public Bid Law.
We find the dispositive issue to be whether the trial court erred in granting the
preliminary injunction filed by NGA as the issue of whether the AT&T contract is
subject to the Louisiana Public Bid Law was not yet determined by the trial court.
1 On March 21, 2022, OPCD filed a motion for suspensive appeal. NGA opposed the motion and
the trial court granted the suspensive appeal on April 27, 2022. NGA subsequently filed for supervisory review with this Court seeking review of the trial court’s order granting the suspensive appeal. On June 27, 2022, this Court granted the writ application “[b]ecause the trial court’s per curiam acknowledges that a notice of suspensive appeal was issued in error.” NGA 911, LLC v. Orleans Parish Communication District, 2022-C-0420 (La.App. 4 Cir. 6/27/22). Thus, this Court ordered the trial court to issue an amended notice of devolutive appeal of its April 12, 2022 judgment. Id.
2 Therefore, our analysis will focus on the trial court’s decision to grant the
preliminary injunction.
Standard of Review
A trial court’s ruling on a preliminary injunction “will not be disturbed on
review absent clear abuse of [] discretion.” Downtown Dev. Dist. of City of New
Orleans v. City of New Orleans, 2018-0726, p. 15 (La.App. 4 Cir. 5/8/19), 272
So.3d 917, 929 (quoting Harvey v. State, 2014-0156, p. 20 (La.App. 4 Cir.
12/16/15), 183 So.3d 684, 700). This broad abuse of discretion is based upon the
trial court’s ruling involving no error of law and not being manifestly erroneous or
clearly wrong in its factual findings “necessary to the proper exercise of its
discretion.” NGA 911, LLC v. Orleans Par. Commc’n Dist., 2022-0049, p. 3
(La.App. 4 Cir. 9/15/22), 348 So.3d 839, 841.
Preliminary Injunction
“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.”
Faubourg Marigny Improvement Ass’n, Inc. v. City of New Orleans, 2015-1308, p.
12 (La.App. 4 Cir. 5/25/16), 195 So.3d 606, 615 (citations omitted). “In order for a
plaintiff to meet his burden of proof at a hearing on a preliminary injunction, he
must make a prima facie showing that he will prevail at the trial on the permanent
injunction.” Yokum v. Pat O’Brien’s Bar, Inc., 2012-0217, p. 7 (La.App. 4 Cir.
8/15/12), 99 So.3d 74, 80 (citing La. C.C.P. art. 3601) (citation omitted). The
prima facie standard in a preliminary injunction is less that what is required to be
shown for a permanent injunction. Smith v. Brumfield, 2013-1171, p. 6 (La.App. 4
Cir. 1/15/14), 133 So.3d 70, 74 (citations omitted).
3 A preliminary injunction may be issued upon a showing by the plaintiff that
“(1) it will suffer irreparable injury, loss, or damage if the injunction is not issued;
(2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of
the case.” A.P.E., Inc. v. City of New Orleans, 2013-1091, p. 5 (La.App. 4 Cir.
1/15/14), 132 So.3d 475, 478 (citation omitted). Irreparable injury is shown when
“money damages cannot adequately compensate for the injuries suffered and the
injuries ‘cannot be measured by pecuniary standards.’” Smith, 2013-1171, p. 7, 133
So.3d at 75 (quoting Historic Restoration, Inc. v. RSUI Indem. Co., 2006-1178, p.
11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208. However, there is an exception to
the irreparable injury requirement:
A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.
Jurisch v.
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NGA 911, LLC * NO. 2022-CA-0458
VERSUS * COURT OF APPEAL ORLEANS PARISH * COMMUNICATION DISTRICT FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-10884, DIVISION “F-14” Honorable Jennifer M Medley ****** Judge Tiffany Gautier Chase ****** (Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Tiffany Gautier Chase)
Murphy James Foster, III Carroll Devillier, Jr. David C. Fleshman Kelsey A. Clark BREAZEALE SACHSE & WILSON, LLP One American Place, 23rd Floor Baton Rouge, LA 70821
COUNSEL FOR PLAINTIFF/APPELLEE
Benjamin M. Chapman LAFLEUR & LABORDE, L.L.C. 6160 Perkins Road, Suite 225 Baton Rouge, LA 70808
Juan J. Lizarraga LAFLEUR & LABORDE, L.L.C. 620 Andrew Higgins Boulevard, Suite 2012 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED AND REMANDED DECEMBER 8, 2022 1
TGC TFL JCL Orleans Parish Communications District (hereinafter “OPCD”) seeks review
of the trial court’s April 12, 2022 judgment granting the petition for preliminary
injunction filed by NGA 911, LLC (hereinafter “NGA”). After consideration of the
record before this Court, and the applicable law, we reverse the judgment of the
trial court and remand the matter for further proceedings.
Facts and Procedural History
The underlying facts of this case have been previously articulated by this
Court:
On August 20, 2020, OPCD entered into a Master Service Agreement [] with AT&T Corp. ([hereinafter] “AT&T”) for the modernization of its existing 9-1-1 emergency communication infrastructure. On December 21, 2020, NGA filed a petition for preliminary and permanent injunction and declaratory judgment. NGA sought to enjoin and nullify the contract between OPCD and AT&T. The petition alleged that OPCD violated Louisiana Public Bid Law by awarding a public contract to AT&T without a competitive bid.
NGA 911, LLC v. Orleans Par. Commc’n Dist., 2021-0287, p. 1 (La.App. 4 Cir.
1/27/22), 337 So.3d 984, 987. This Court found the trial court erred in cumulating
the actions for preliminary and permanent injunctive relief, granting a permanent
injunction absent a full evidentiary hearing and granting declaratory relief. Id.,
1 2021-0287, pp. 12-13, 337 So.3d at 993. After vacating the trial court’s previous
judgment granting the petition for preliminary injunction, this Court remanded the
matter for further proceedings. Id., 2021-0287, p. 13, 337 So.3d at 993.
On February 4, 2022, NGA filed a “motion to set expedited hearing on
preliminary injunction.” NGA once again sought to enjoin the contract between
OPCD and AT&T on the grounds that the contract was awarded in violation of
Louisiana Public Bid Law pursuant to La. R.S. 38:2212, et seq., or alternatively,
violated the request for proposals outlined in La. R.S. 38:2234 through 2237. The
matter was heard by the trial court on March 18, 2022. By judgment dated April
12, 2022, the trial court granted NGA’s petition for preliminary injunction and
prohibited OPCD “from proceeding forward with the terms and conditions of the
AT&T Agreement until such time as the [petition for permanent injunction and
declaratory judgment] filed by Plaintiff [NGA] is decided.” This appeal followed.1
Assignments of Error
On appeal, OPCD asserts two assignments of error: (1) the trial court erred
in granting NGA’s request for preliminary injunctive relief; and (2) the trial court
erred in finding that the AT&T contract is subject to the Louisiana Public Bid Law.
We find the dispositive issue to be whether the trial court erred in granting the
preliminary injunction filed by NGA as the issue of whether the AT&T contract is
subject to the Louisiana Public Bid Law was not yet determined by the trial court.
1 On March 21, 2022, OPCD filed a motion for suspensive appeal. NGA opposed the motion and
the trial court granted the suspensive appeal on April 27, 2022. NGA subsequently filed for supervisory review with this Court seeking review of the trial court’s order granting the suspensive appeal. On June 27, 2022, this Court granted the writ application “[b]ecause the trial court’s per curiam acknowledges that a notice of suspensive appeal was issued in error.” NGA 911, LLC v. Orleans Parish Communication District, 2022-C-0420 (La.App. 4 Cir. 6/27/22). Thus, this Court ordered the trial court to issue an amended notice of devolutive appeal of its April 12, 2022 judgment. Id.
2 Therefore, our analysis will focus on the trial court’s decision to grant the
preliminary injunction.
Standard of Review
A trial court’s ruling on a preliminary injunction “will not be disturbed on
review absent clear abuse of [] discretion.” Downtown Dev. Dist. of City of New
Orleans v. City of New Orleans, 2018-0726, p. 15 (La.App. 4 Cir. 5/8/19), 272
So.3d 917, 929 (quoting Harvey v. State, 2014-0156, p. 20 (La.App. 4 Cir.
12/16/15), 183 So.3d 684, 700). This broad abuse of discretion is based upon the
trial court’s ruling involving no error of law and not being manifestly erroneous or
clearly wrong in its factual findings “necessary to the proper exercise of its
discretion.” NGA 911, LLC v. Orleans Par. Commc’n Dist., 2022-0049, p. 3
(La.App. 4 Cir. 9/15/22), 348 So.3d 839, 841.
Preliminary Injunction
“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.”
Faubourg Marigny Improvement Ass’n, Inc. v. City of New Orleans, 2015-1308, p.
12 (La.App. 4 Cir. 5/25/16), 195 So.3d 606, 615 (citations omitted). “In order for a
plaintiff to meet his burden of proof at a hearing on a preliminary injunction, he
must make a prima facie showing that he will prevail at the trial on the permanent
injunction.” Yokum v. Pat O’Brien’s Bar, Inc., 2012-0217, p. 7 (La.App. 4 Cir.
8/15/12), 99 So.3d 74, 80 (citing La. C.C.P. art. 3601) (citation omitted). The
prima facie standard in a preliminary injunction is less that what is required to be
shown for a permanent injunction. Smith v. Brumfield, 2013-1171, p. 6 (La.App. 4
Cir. 1/15/14), 133 So.3d 70, 74 (citations omitted).
3 A preliminary injunction may be issued upon a showing by the plaintiff that
“(1) it will suffer irreparable injury, loss, or damage if the injunction is not issued;
(2) it is entitled to the relief sought; and (3) it will likely prevail on the merits of
the case.” A.P.E., Inc. v. City of New Orleans, 2013-1091, p. 5 (La.App. 4 Cir.
1/15/14), 132 So.3d 475, 478 (citation omitted). Irreparable injury is shown when
“money damages cannot adequately compensate for the injuries suffered and the
injuries ‘cannot be measured by pecuniary standards.’” Smith, 2013-1171, p. 7, 133
So.3d at 75 (quoting Historic Restoration, Inc. v. RSUI Indem. Co., 2006-1178, p.
11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208. However, there is an exception to
the irreparable injury requirement:
A petitioner is entitled to injunctive relief without the requisite showing of irreparable injury when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or a violation of a constitutional right. Once a plaintiff has made a prima facie showing that the conduct to be enjoined is reprobated by law, the petitioner is entitled to injunctive relief without the necessity of showing that no other adequate legal remedy exists.
Jurisch v. Jenkins, 1999-0076, p. 4 (La. 10/19/99), 749 So.2d 597, 599 (internal
citations omitted).
NGA contends that OPCD’s argument is based on the flawed proposition
that it was required to establish irreparable injury in order to obtain a preliminary
injunction. NGA asserts that there is no need for a showing of irreparable injury
when there is a violation of a law. According to NGA, OPCD violated the
Louisiana Public Bid Law. Specifically, under public bid law, when entering into a
public work contract, OPCD is required to procure the contract through either a
public bid process or through a request for proposals. See La. R.S. 38:2212, et seq.
As a threshold matter, and before we can consider the correctness of the trial
4 court’s ruling on the granting of the preliminary injunction, we must first
determine whether the trial court made a finding of whether this is a contract for
public work or a public service contract.
Our Supreme Court has held that the public bid law applies to a contract for
public work and not a public service contract. American Waste and Pollution
Control Co. v. Madison Parish Police Jury, 488 So.2d 940, 944 (La. 1986);
Wallace Stevens, Inc. v. Lafourche Par. Hosp. Dist. No. 3, 323 So.2d 794 (La.
1975). A public work is defined as “the erection, construction, alteration,
improvement, or repair of any public facility or immovable property owned, used,
or leased by a public entity.” La. R.S. 38:2211(A)(13). OPCD’s contract with
AT&T is entitled “AT&T Multi-Service Agreement;” however, the issue of
whether the contract is one for a public work or public service was not determined
by the trial court. Although NGA is required to make a prima facie showing that it
will prevail at the trial on the permanent injunction, we find the trial court erred in
granting the preliminary injunction without first establishing the category of the
AT&T contract. We recognize that the applicability of the Louisiana Public Bid
Law will be determined at the trial on the merits of the permanent injunction and
declaratory judgment. Nonetheless, the trial court must first determine the nature of
the contract at issue. We find the trial court abused its discretion in granting the
preliminary injunction and finding NGA met its burden of proof without first
determining whether the AT&T contract is a contract for public work or a public
service contract.
5 Decree
For the foregoing reasons, we reverse the judgment of the trial court granting
NGA’s petition for preliminary injunction and remand the matter for further
proceedings.
REVERSED AND REMANDED