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

CDW SERVICES, LLC * NO. 2024-CA-0083

VERSUS *
COURT OF APPEAL
CITY OF NEW ORLEANS AND *
MAYOR LATOYA CANTRELL FOURTH CIRCUIT
IN HER OFFICAL 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 Nakisha Ervin-Knott
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Nakisha Ervin-Knott)

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

COUNSEL FOR PLAINTIFF/APPELLANT

Corwin St. Raymond
DEPUTY CITY ATTORNEY
Donesia D. Turner
CITY ATTORNEY
CITY OF NEW ORLEANS
1300 Perdido Street, Room 5E03
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

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

COUNSEL FOR INTERVENOR/APPELLEE

MOTION TO DISMISS APPEAL DENIED;
JUDGMENT VACATED; REMANDED
September 24, 2024

NEK

DLD
JCL

CDW Services, LLC (“CDW”) appeals the trial court’s October 5, 2023

judgment denying its petition for a preliminary injunction and awarding monetary

damages to the City of New Orleans (the “City”) and Verius Property Group, LLC

(“VPG”). For the following reasons, we vacate the portion of the trial court’s

judgment awarding damages.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

On December 28, 2022, the City solicited bids for a public works contract

titled Morris F.X. Jeff Sr. Pool Renovations, Proposal 2721 (the “Project”). Both

CDW and VPG submitted sealed bids for the Project’s contract, and the City

ultimately awarded the contract to VPG. Although CDW protested the award, the

City and VPG formally executed the contract for the Project on May 16, 2023.

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

Preliminary Injunction, Permanent Injunction, Mandamus, and Declaratory

Judgment. CDW sought to enjoin the City from awarding the contract to any party

other than itself and to prevent the City from moving forward with work on the

Project until a full trial on the merits took place. The trial court issued the

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restraining order that day and set the bond at $3,000.00.1 In response, the City filed

exceptions of unauthorized use of summary proceedings, prescription, and no

cause of action. VPG subsequently intervened in the case and filed a

reconventional demand and exceptions of prescription and mootness. The trial

court heard and denied the exceptions on June 27, 2023. That same day, the trial

court raised the bond to $291,000.00.2

On June 30, 2023, the trial court heard the merits of the request for a

preliminary injunction.3 At the conclusion of the hearing, the trial court denied the

request for a preliminary injunction and awarded 95% of the restraining order bond

to VPG and the remaining 5% to the City. The trial court issued its written

judgment reflecting this ruling on October 5, 2023, and it mailed notice to the

parties eleven days later. On October 20, 2023, CDW filed a motion for new trial.

The trial court heard the merits of the motion for new trial on December 4, 2023,

and it denied the motion. This appeal followed. In response, VPG filed a Motion to

Dismiss Appeal as Untimely.

ASSIGNMENTS OF ERROR

On appeal, CDW names one assignment of error—the trial court erred in

granting money damages in connection with the dissolution of the restraining order

without first conducting an evidentiary hearing.

1 The acting duty judge initially set the bond and issued the restraining order.
2 The record shows that the trial court signed an Order for Extension of TRO and

Preliminary Reset Date that was dated for June 26, 2023. This written order
increased the bond to $291,000.00. However, the date on this order appears to be
incorrect because the court did not increase the bond until the parties raised the
issue at the exceptions hearing, as reflected in the June 27, 2023 transcript.
3 The same written order increasing the bond also ordered that the preliminary

injunction hearing be conducted upon the verified pleadings and affidavits
pursuant to La. C.C.P. art. 3609. Although the order did not specifically name
article 3609, it stated, “NO LIVE TESTIMONY PERMITTED BY COURT.
AFFIDAVITS ONLY.”

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MOTION TO DISMISS APPEAL

We first review VPG’s Motion to Dismiss Appeal as the motion contains a

dispositive issue. VPG filed a motion to dismiss CDW’s appeal as untimely under

Louisiana Code of Civil Procedure article 3612, which states that an appeal on a

preliminary injunction must be taken within fifteen days of the signing of the

judgment. CDW contends that it is not appealing the trial court’s denial of its

preliminary injunction. Rather, it is appealing the trial court’s award of damages

and attorney’s fees under article 3608. Yet, because the judgment contains multiple

types of relief, CDW argues that the entire judgment should be considered as a

final, appealable judgment. We address each issue in turn.

Whether CDW’s appeal regarding the merits of the preliminary injunction
judgment is timely

A final judgment is appealable, but “[a]n interlocutory judgment is

appealable only when expressly provided by law.” La. C.C.P. art. 2083(A) and (C).

A judgment that determines the merits of a case is a final judgment. La. C.C.P. art.

1841. A judgment that only determines a preliminary matter is an interlocutory

judgment. Id. The grant or denial of a preliminary injunction is an interlocutory

judgment. Maqubool v. Sewerage and Water Bd. of New Orleans, 2018-0572, p. 3

(La. App. 4 Cir. 11/14/18), 259 So. 3d 630, 632 (citing Yokum v. Pat O'Briens Bar,

Inc., 2015-0946, p. 2 (La. App. 4 Cir. 3/02/16), 190 So. 3d 352, 354). Therefore,

the judgment in this case is an interlocutory judgment that is not appealable unless

otherwise provided by law.

The Code of Civil Procedure does allow for a judgment on a preliminary

injunction to be appealed so long as the appeal is taken within fifteen days from the

signing of the judgment. La. C.C.P. art. 3612(B) and (C); Stevens v. St. Tammany

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Par. Gov’t, 2016-0197, p. 5 (La. App. 1 Cir. 1/18/17), 212 So. 3d 562, 566. In this

case, the trial court signed the written judgment on October 5, 2023. CDW did not

file for an appeal from that judgment until December 12, 2023, well after the time

to take an appeal had passed. Although CDW filed a motion for new trial on

October 20, within the fifteen-day appeal period, the motion for new trial did not

stall the time in which to file an appeal. Morris v. Transtates Petroleum, Inc., 246

So. 2d 183, 186-87 (La. 1971); Stevens, 2016-0197, p. 6, 212 So. 3d at 566. As

such, CDW’s appeal of the preliminary injunction is untimely, and we cannot

consider any issues or arguments related to the merits of the preliminary

injunction. See Morris, 246 So. 2d at 186.

Whether CDW’s appeal regarding the money damages pursuant to La. C.C.P.
art. 3608 is timely

CDW contends that it is only appealing the damages portion of the judgment

related to the wrongful issuance of the temporary restraining order. A judgment

that touches on certain merits but does not resolve all the issues in the case is a

“partial judgment” or “partial final judgment.” Blake v. Blake, 2012-0655, p. 6 (La.

App. 4 Cir. 10/31/12), 103 So. 3d 683, 686. “An appeal of such a judgment is

governed by La. [C.C.P.] art. 1915, which divides partial judgments into two

groups: (1) those under Art. 1915(A), which lists six specific types of partial final

judgments that are appealable without being designated as final by the trial court;

and (2) those covered by Art. 1915(B), which provides that any other partial

judgment (excluding those listed in Part A) is not deemed to be final or subject to

an appeal, unless the trial court designates it as such.” Andrew Paul Gerber

Testamentary Trust v. Flettrich, 2016-0065, pp. 4-5 (La. App. 4 Cir. 11/02/16),

204 So. 3d 634, 637-38 (citing Blake, 2012–0655, at pp. 7-8, 103 So. 3d at 687).

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Article 1915(A)(6) categorizes a judgment that imposes sanctions as an

appealable, partial final judgment. Most importantly, our jurisprudence recognizes

that a money judgment awarded in connection with the wrongful issuance of a

restraining order is a final, appealable judgment. Kinchen v. Kinchen, 235 So. 2d

81, 84 (La. 1970) (“[W]here the only appealable issue is from a final money

judgment and not from an interlocutory order or judgment in connection with a

preliminary injunction, we find that the delays for filing the appeal did not begin to

run until the mailing of notice of judgment . . . .”); Clipper Estates Master

Homeowners’ Ass’n, Inc. v. Harkins, 2013-0429, p. 1 (La. App. 1 Cir. 11/04/13),

2013 WL 5925762, n. 1 (“[A] money judgment for the wrongful issuance of a

TRO, even when coupled with an interlocutory order in a preliminary injunction, is

a final judgment.”). In this case, the trial court ordered sanctions under La. C.C.P.

art. 3608 for the wrongful issuance of a restraining order, and that money judgment

is appealable as a matter of right. CDW timely filed a devolutive appeal within the

delays allowed under La. C.C.P. art. 2087.4 Therefore, we have appellate

jurisdiction to consider the merits of the money judgment.

Whether the money award renders the entire judgment appealable

CDW contends that, because the sanctions portion of the judgment is

appealable, the entire judgment should be construed as a final, appealable

judgment. That argument is without merit. As discussed above, certain issues in a

judgment may be considered on appeal even if the entirety of the judgment may

not be appealable. The law is clear that an appeal of a preliminary injunction may

4 La. C.C.P. art. 2087(A) provides that a devolutive appeal may be taken within

sixty days of either the expiration of the delay to apply for a new trial or the date of
mailing of the notice of signing on a judgment for a motion for new trial. CDW’s
appeal is timely under both periods.

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only be taken within fifteen days of the signing of the judgment, and CDW failed

to meet that deadline. Due to CDW’s failure to timely appeal that issue, we have

no authority to consider any arguments related to the merits of the preliminary

injunction. However, the portion of the judgment awarding money damages for the

wrongful issuance of the restraining order constitutes a partial final judgment and

is appealable in its own right. Because CDW timely filed a devolutive appeal, we

may review that issue. Thus, our review in this case is limited only to the issue of

whether the trial court erred in awarding damages without an evidentiary hearing.

DISCUSSION

Standard of Review

A trial judge has the discretion to award damages pursuant to La. C.C.P. art.

3608, and such an award will not be disturbed by the appellate court absent a

finding of an abuse of discretion. ARCO Oil & Gas Co., a Div. of Atl. Richfield Co.

v. DeShazer, 1998-1487, p. 4 (La. 1/20/99), 728 So. 2d 841, 844; HCNO Servs.,

Inc. v. Secure Computing Sys., Inc., 1996-1693, p. 15 (La. App. 4 Cir. 4/23/97),

693 So. 2d 835, 844. The abuse of discretion standard is highly deferential to the

trial court’s determination on an issue and means that the trial court’s judgment

should only be overruled if the appellate court finds the ruling to be arbitrary or

capricious. Boudreaux v. Bollinger Shipyard, 2015-1345, p. 16 (La. App. 4 Cir.

6/22/16), 197 So. 3d 761, 771. That is, the appellate court must find no rational

basis for the trial court’s decision. Id.

Temporary Restraining Orders and Damages under La. C.C.P. art. 3608

A temporary restraining order shall not be issued unless the mover furnishes

security as dictated by the trial court. La. C.C.P. art. 3610. The purpose of the

security is to indemnify any person wrongfully restrained by the order for the costs

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and damages he may incur. Id. In the event that a restraining order is wrongfully

issued, the trial court has the discretion to award damages pursuant to article 3608.

ARCO Oil, 1998-1487, p. 4, 728 So. 2d at 844; HCNO Servs., 1996-1693, p. 15,

693 So. 2d at 844. The good or bad faith of the party requesting the restraining

order is not relevant to an award of damages under article 3608. E.g. HCNO Servs.,

1996-1693, p. 15, 693 So. 2d at 843. Rather, all that is required is a showing that

the restraining order was wrongfully issued and that the restraining order caused

damages. Johnsa v. Edwards, 582 So. 2d 1280, 1283 (La. 1991). A wrongful

issuance of a restraining order simply means “injunctive relief that has been issued

when it should not have been because the plaintiff had no right to it.” Girouard v.

Summit Fin. Wealth Advisors, LLC, 2020-261, p. 19 (La. App. 3 Cir. 3/24/21), 318

So. 3d 231, 246. “Dissolution of a preliminary injunction is prima facie evidence

of damage for the wrongful issuance thereof.” HCNO Servs., 1996-1693, p. 14,

693 So. 3d at 843. However, damages may only be awarded pursuant to article

3608 through a motion to dissolve or on a reconventional demand. Joseph Fein

Caterer, Inc. v. Borenstein, 459 So. 2d 673, 675 (La. App. 4th Cir. 1984); Weaver

v. Chimneywood Homeowners Ass’n, Inc., 2001-1444, p. 4 (La. App. 4 Cir.

1/30/02), 809 So. 2d 1071, 1074.

Whether the trial court erred in awarding damages pursuant to La. C.CP. art.
3608

First, we find that the district court abused its discretion in awarding

damages to the City. As noted earlier, damages pursuant to article 3608 may only

be awarded through a motion to dissolve the restraining order or a reconventional

demand. Joseph Fein Caterer, 459 So. 2d at 675; Weaver, 2001-1444, p. 4, 809

So. 2d at 1074. The City filed neither a motion to dissolve nor a reconventional

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demand. Thus, the trial court had no rational basis to award damages to the City

when the City failed to follow the proper procedure to request such damages.

Turning to VPG, we find that the trial court likewise abused its discretion in

awarding it $276,450.00 in damages. Unlike the City, VPG did file a

reconventional demand requesting that the restraining order be dissolved and that it

be awarded damages for the wrongful issuance of the restraining order. At the June

30 hearing, VPG failed to offer any evidence of damages for the trial court to

consider. In fact, VPG’s reconventional demand, and, consequently, the issue of

damages, was not even before the trial court that day. The only matter set and the

only matter argued by the parties was the merits of CDW’s request for a

preliminary injunction. The parties did not discuss or introduce evidence regarding

any alleged damages. As such, the trial court did not have a rational basis to award

a large amount of damages without first allowing the parties to brief the issue and

present evidence.

VPG argues that the trial court still had the discretion to award damages in

the absence of concrete evidence. VPG relies on a number of cases to support its

assertion that courts have the discretion to assess damages in cases “[w]here there

is a legal right to recovery but the damages cannot be exactly estimated. . . .” Burns

v. Dominique, 354 So. 2d 763, 766 (La. App. 4th Cir. 1978). However, we find

those cases to be distinguishable. We first note that there is no legal entitlement to

damages under La. C.C.P. art. 3608. An award of damages for the wrongful

issuance of a restraining order falls within the discretion of the trial court and “is

not mandatory in its application.” Jackson v. Pfeifer, 2014-0062, p. 8 (La. App. 4

Cir. 11/12/14), 152 So. 3d 998, 1003 (quoting ARCO Oil, 1998–1487, p. 4, 728 So.

2d at 844). Second, this does not appear to be a case where damages cannot be

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exactly estimated as VPG contends. Finally, in the cases where appellate courts

deferred to the lower court’s discretion, the trial courts had either declined to

assess damages, awarded only a nominal amount of damages, or actually received

some form of evidence to support the awarded amount.5 For instance, in Ashley v.

Welcker, this Court affirmed the trial court’s judgment awarding attorney’s fees

without evidence. 522 So. 2d 172, 174 (La. App. 4th Cir. 1988). However, in that

case, this Court found that the amount awarded was not excessive. Id. Similarly, in

Succession of Ancar, this Court found that the trial court did not abuse its

discretion in awarding nominal damages. 421 So. 2d 261, 262 (La. App. 4th Cir.

1982) (emphasis added). Here, the trial court awarded over $275,000.00 without

corroborating evidence to justify the large amount and without giving the parties

an opportunity to be heard on the matter.

VPG argues that the affidavit it provided at the June 27, 2023 hearing on its

exception provided proof of damages. We find the affidavit, by itself, does not

support such a large award. The affidavit states that VPG had started work on the

Project and generally references hiring subcontractors, renting equipment,

obtaining insurance, and doing site preparations. Yet, the trial judge found in her

denial of the exceptions that VPG had not yet started substantial work on the

Project. Despite finding that little work had been performed, the trial judge still

raised the bond amount to $291,000.00 and then later awarded VPG 95% of that

5 E.g. Ashley v. Welcker, 522 So. 2d 172, 174 (La. App. 4th Cir. 1988) (holding

that the trial court did not abuse its discretion in awarding attorney’s fees when no
evidence of such had been introduced); Caldwell v. Griggs, 40,838, p. 7 (La. App.
2 Cir. 3/08/06), 924 So. 2d 464, 469 (upholding the trial court’s decision to deny
damages); Succession of Ancar, 421 So. 2d 261, 262 (La. App. 4th Cir. 1982)
(noting that the trial court only awarded a nominal amount in damages).

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bond amount. The trial court did not receive evidence of specific damages and

offered no reason for the award.

In light of the above, we find that the record does not support the award of

damages to the City or VPG. Although trial courts have the discretion to award

damages under La. C.C.P. art. 3608, that discretion is not unfettered and can be

abused. ARCO Oil & Gas Co., a Div. of Atl. Richfield Co. v. DeShazer, 1996-1344,

p. 4 (La. App. 3 Cir. 5/21/97), 698 So. 2d 408, 410. A trial court abuses its

discretion when, as here, the record does not provide a rational basis for the court’s

action. As such, we vacate the portion of the trial court’s judgment awarding

damages to the City and VPG, and we remand this matter in order for the trial

court to conduct a full, evidentiary hearing on whether damages should be awarded

and, if so, how much to award.

DECREE

For the foregoing reasons, we deny VPG’s motion to dismiss, vacate the

portion of the trial court’s judgment awarding damages to the City and VPG, and

remand this matter for further consideration that is consistent with this opinion.

MOTION TO DISMISS APPEAL DENIED;
JUDGMENT VACATED; REMANDED

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