Nga 911, LLC v. Orleans Parish Communication District

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

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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.,

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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.

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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).

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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

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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.

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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

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