VC Nora, Jr. Bldg. & Remodeling v. State, Through Department of Transportation and Development

635 So. 2d 466, 93 La.App. 3 Cir. 1469, 1994 La. App. LEXIS 872, 1994 WL 102587
CourtLouisiana Court of Appeal
DecidedMarch 30, 1994
Docket93-1469
StatusPublished
Cited by14 cases

This text of 635 So. 2d 466 (VC Nora, Jr. Bldg. & Remodeling v. State, Through Department of Transportation and Development) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
VC Nora, Jr. Bldg. & Remodeling v. State, Through Department of Transportation and Development, 635 So. 2d 466, 93 La.App. 3 Cir. 1469, 1994 La. App. LEXIS 872, 1994 WL 102587 (La. Ct. App. 1994).

Opinion

635 So.2d 466 (1994)

V. C. NORA, JR. BUILDING & REMODELING, INC., Plaintiff-Appellee,
v.
STATE of Louisiana, Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 93-1469.

Court of Appeal of Louisiana, Third Circuit.

March 30, 1994.

*467 Robert C. Thomas, Natchitoches, for V.C. Nora, Jr. Building & Remodeling, Inc.

David Carlyle Voss, Baton Rouge, for State, Through Dept. of Transp. and Development.

W.P. Wray, Jr., Baton Rouge, for LA Associated Gen. Contractors.

*468 Before KNOLL and COOKS, JJ., and CULPEPPER[*], J. Pro Tem.

KNOLL, Judge.

This appeal arises out of the rejection of a bid on a state construction project. The trial court held the Department of Transportation and Development (DOTD) violated LSA-R.S. 38:2212 when it did not award the project to the lowest bidder, allegedly V.C. Nora, Jr. Building and Remodeling, Inc. (Nora). DOTD appeals this judgement.

FACTS

DOTD solicited bids for two construction projects to be carried out in Natchitoches Parish. The deadline for submitting bids was 10:00 a.m., June 23, 1993. Nora deposited his bid for the projects in the U.S. mail via Express Mail next day delivery at approximately 9:30 a.m. on June 21, 1993. The package was addressed:

Louisiana Department of Transportation and Development
1201 Capital Access Road
Headquarters Administration Building, Room 422
Baton Rouge, LA 70802

It is stipulated that the package arrived in the mail room of DOTD Headquarters at approximately 12:00 noon on June 22, 1993. For whatever reason, the package was not routed to room 422 by the 10:00 a.m. deadline of the following day.

After Nora's bid was rejected as being untimely, Nora filed this suit alleging its bid was the lowest submitted and seeking to enjoin the awarding of the contract to Pack Unlimited. This suit was instituted through summary proceedings as provided for in LSA-R.S. 38:2220. DOTD pleaded exceptions of improper venue, no right of action and no cause of action. These exceptions were overruled by the trial court. At trial, DOTD sought to prove not only that the bid was untimely submitted, but also the form of the bid was so defective that DOTD would have been required to reject the bid even if it had been timely. While not addressing the issue of the bid form, the trial court did explicitly find the bid was timely submitted and enjoined DOTD from awarding the contract.

DOTD appeals this judgment, contesting both venue and the merits of the trial court's holding. We first address the venue issue before proceeding to the merits of the case.

EXCEPTION OF VENUE

DOTD contends the trial court erred when it overruled DOTD's exception of improper venue. DOTD asserts venue in this action is controlled by LSA-R.S. 13:5104(A), the general venue provision for suits against the State. DOTD argues that the cause of action in the case sub judice arose in East Baton Rouge parish since this is where the request for bids emanated, where they were returned, and where the decision of which bid to accept was made. However, for the reasons that follow, we believe venue is proper in Natchitoches Parish.

We believe venue is based on the interplay of three separate venue provisions.

First, the most general provision is LSA-C.C.P. art. 76.1, which pertains to actions on contracts. It provides:

"An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract."

The next provision, in order of specificity, is LSA-R.S. 13:5104(A), which is found in Chapter 32, Part XV, Suits Against State, State Agencies or Political Subdivisions, provides:

"All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arises."

*469 Finally, the most specific provision is found in Chapter 10 of Title 38 and provides the statutory law governing public contracts. The first section of the Chapter is R.S. 38:2181, entitled "Venue of suits". This section provides, in pertinent part:

"A. A suit to annul a public contract on the ground of fraud, illegality, or violation of the contract, may be instituted against a contractor either in the parish of the domicile of the contractor or in the parish where the real or personal property involved is located, or in the parish, or any one of the parishes wherein the work under the contract is to be performed.
B. A suit arising under any public contract regarding the construction, alteration, or repair of any public works or for the purchase of materials or supplies, may be instituted either in the parish in which the public entity is located or in any other parish where, by law, such action may be instituted."

Initially, we note that Nora contends 38:2181(A)'s language, "the parish wherein the work under the contract is to be performed", is authority for finding venue in Natchitoches Parish. However, we believe Nora's reliance on 38:2181(A) is misplaced. Pretermitting DOTD's argument that a suit to enjoin the awarding of a contract is not "A suit to annul a public contract", we find paragraph A is limited to suits "instituted against a contractor" and is not intended to be applied to the State. Rather, as DOTD argues in brief, we believe section 38:2181(B)'s language, "A suit arising under any public contract ... may be instituted ... in the parish in which the public entity is located ...", clearly indicates this is the proper paragraph to be applied to the State. Further paralleling DOTD's position, we agree that 38:2181(B)'s provision of venue in either the public entity's domicile or "any other parish where, by law, such action may be instituted", incorporates the language in 13:5104(A), "the parish where the cause of action arises". From this point, DOTD concludes "East Baton Rouge is clearly the parish in which the cause of action arises in this case since it is the parish where the receipt of bids took place and all conduct regarding the department's decision the award [sic] of this contract took place." However, on this final conclusion, we cannot agree with DOTD.

The term "cause of action" has consistently eluded precise definition. See Commercial Nat. Bank v. First Nat. Bank, 603 So.2d 270 (La.App. 2nd Cir.1992), writ denied, 605 So.2d 1151 (La.1992). In Commercial Nat. Bank[1], the court was faced with a venue issue when a Shreveport bank sued the Louisiana Housing Finance Agency (LHFA) over a trust agreement in which the bank was trustee. At trial, the bank had successfully defended venue in Caddo Parish. On appeal, LHFA asserted that under 13:5104, East Baton Rouge Parish was the only proper venue. The Second Circuit interpreted 13:5104 by reading that provision in pari materia with the Code of Civil Procedure article controlling venue in contract actions, LSA-C.C.P. Art. 76.1. This article provides not only for the traditional venue of "where the contract was executed", but includes the more modern concept of venue where any work "was performed or was to be performed". Thus the Second Circuit found venue was proper in Caddo Parish as well as in East Baton Rouge Parish.

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635 So. 2d 466, 93 La.App. 3 Cir. 1469, 1994 La. App. LEXIS 872, 1994 WL 102587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vc-nora-jr-bldg-remodeling-v-state-through-department-of-lactapp-1994.