Lmb Services, LLC Versus Parish of St. Charles

LMB SERVICES, LLC NO. 24-CA-46

VERSUS FIFTH CIRCUIT

PARISH OF ST. CHARLES COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 93,111, DIVISION "C"
HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

November 27, 2024

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, and Scott U. Schlegel

JUDGMENT VACATED;
REMANDED FOR FURTHER PROCEEDINGS
MEJ
SMC
FHW

GRAVOIS, J., DISSENTS WITH REASONS
JGG

SCHLEGEL, J., DISSENTS FOR THE REASONS ASSIGNED BY
GRAVOIS, J.
SUS

COUNSEL FOR PLAINTIFF/APPELLANT,
LMB SERVICES, LLC
John I. Hulse, IV
Alexander J. Brewster

COUNSEL FOR DEFENDANT/APPELLEE,
ST. CHARLES PARISH
Corey M. Oubre
Robert L. Raymond

JOHNSON, J.

Plaintiff/Appellant, LMB Services, LLC, appeals the trial court’s judgment

that dismissed its petition for preliminary injunction and alternative writ of

mandamus and vacated a temporary restraining order concerning a public bid for

an improvement project rendered in the 29th Judicial District Court, Division “C”.

For the following reasons, we vacate the judgment and remand the matter to the

trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The relevant facts of this appeal are as follows:

On August 31, 2023, LMB Services, LLC (hereinafter referred to as

“LMB”) filed its petition for temporary restraining order, preliminary injunction,

and writ of mandamus against Defendant/Appellee, the Parish of St. Charles

(hereinafter referred to as “the Parish”).1 In its petition, LMB stated the Parish, a

public entity, advertised the Primrose Canal Cleaning and Improvements – Phase

1A project, labeled as Project No. P10202 (hereinafter referred to as “the Project”),

through a public bid that was opened on August 15, 2023. LMB alleged that it

electronically submitted its bid, together with a hand delivery of the physical bid

bond, on the date of the bid opening. LMB asserted that its bid was the second

lowest economic bid in relation to the electronic bid placed by Omega Foundation

Services (hereinafter referred to as “Omega”), and it was the only responsive bid

that met all of the criteria of the advertised bid specifications.

LMB stated that it submitted two formal bid protests to the Parish, outlining

the multiple errors and defects in the other bids--particularly Omega’s bid--and

requesting documentation of the other bids’ rejections by the Parish. It averred

that Omega’s bid failed to properly submit the mandatory bid security/bid bond of

1
The service of citation of the petition was requested upon the wrong person—the former parish
president, rather than the current parish president.

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$2,377,777.11 in accordance with the bid specifications and statutory requirements

of the Louisiana Public Bid Law, La. R.S. 38:2212, et seq.; and Omega failed to

submit the entire Bid Form, as revised and required by the Bid Specifications,

Addendum No. 2. LMB alleged the Parish refused to reject Omega’s bid and

planned to award Omega the Project. It contended that, if the Parish were

permitted to move forward with awarding the Project to Omega, a non-responsive

bidder, the award would constitute a violation of the Louisiana Pubic Bid Law,

causing irreparable damage to LMB and the general public. LMB prayed for the

immediate issuance of a writ of mandamus, directing the Parish to reject Omega’s

bid as unresponsive and directing the Parish to award the Project to LMB, as the

lowest responsive bidder. It also prayed for the issuance of a temporary restraining

order (hereinafter referred to as “TRO”) and subsequent issuance of preliminary

and permanent injunctions, restraining and prohibiting the Parish from execution of

any contract or performance of any work upon the Project until a full hearing had

been held and a judgment rendered. LMB attached the following documents to its

petition: the LMB bid protest letter, a bid protest letter from LMB’s counsel of

record, the Parish’s rejection of LMB’s bid protest, the Parish’s bid specifications,

the bid and copy of the bid bond submitted by Omega, the bid and bid bond

submitted by LMB, and Addendum No. 2 to the bid specifications.

The trial court issued a TRO against the Parish on September 1, 2023,

restraining the Parish from execution of any contract for the Project, issuing any

notice to proceed with work on the Project, or performance of any work on the

Project. The Parish was ordered to show cause why preliminary and permanent

injunctions and an alternative writ of mandamus should not be issued. At the

September 25, 2023 show cause hearing, LMB called one witness, Louis M.

Badalamenti, to explain LMB’s bidding process with the Parish for the Project.

At the conclusion of Mr. Badalamenti’s testimony, the Parish moved for an

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involuntary dismissal, arguing LMB failed to present any evidence that Omega

was not the lowest responsive and responsible bidder. In opposition, LMB argued

that the documents attached to its petition proved Omega’s bid did not comply with

the Public Bid Law. It insisted that it had not finished the presentation of its case

and petitioned the court to call one additional witness and recall Mr. Badalamenti.2

The trial court held that LMB had not introduced any of the documents attached to

its petition into evidence, to which LMB petitioned the court to allow it to

introduce those documents at that time. The court found that LMB rested its case

when its counsel stated there were no further witnesses, subject to cross-

examination of the Parish’s witnesses, and denied LMB’s request to allow the

introduction of more evidence. LMB then proffered the documents attached to its

petition into evidence. The trial court orally granted the Parish’s motion for an

involuntary dismissal.

Thereafter, on October 12, 2023, the trial court issued a written judgment

that granted the Parish’s motion for involuntary dismissal. The court also

dismissed LMB’s preliminary injunction with prejudice, dismissed LMB’s

alternative writ of mandamus with prejudice, and vacated the TRO granted to LMB

on September 1, 2023. LMB filed a motion for new trial, asserting it was not

required to introduce additional evidence because Omega’s bid was already

deemed defective and nonresponsive. It further asserted that the trial court’s

refusal to permit additional testimony from witnesses or, alternatively, to re-open

the case for the admission of additional evidence constituted a miscarriage of

justice.

A hearing on the motion for new trial was held on November 8, 2023. The

trial court orally denied LMB’s motion for new trial and subsequently rendered a

2
LMB stated that it intended to present the testimony of a Central Bidding representative to
verify Omega’s bid. Central Bidding operates the online bidding platform through which the electronic
bids were submitted.

24-CA-46 3

written judgment of the same ruling on November 16, 2023. LMB’s instant appeal

followed.

ASSIGNMENTS OF ERROR

On appeal, LMB alleges the trial court erred in granting the Parish’s motion

for involuntary dismissal of its petition for preliminary injunction and alternative

writ of mandamus because: LMB presented prima facie evidence of the defects in

the Omega bid; the Parish failed to meet its burden of proof during the show cause

hearing; LMB had not rested its case; and the trial court excluded relevant witness

testimony. LMB further alleges that the trial court erred in denying its motion for

new trial on the basis that the involuntary dismissal was erroneously granted.

LAW AND ANALYSIS

Motion for New Trial and Involuntary Dismissal

LMB alleges the trial court abused its discretion in denying its motion for

new trial because the Parish’s motion for involuntary dismissal was prematurely

granted. It argues that it had not completed the presentation of its evidence. LMB

contends that it preserved the right to call a Central Bidding representative or recall

Mr. Badalamenti—as both witnesses were present outside of the courtroom—and

the defective Omega bid could have been introduced during either one of their

testimonies. It further contends that the trial court’s refusal to permit the

immediate correction of its inadvertent omission to introduce the Omega bid,

which was attached to its verified petition, or the presentation of additional witness

testimony was clearly wrong.

The Parish avers the trial court properly granted its motion for involuntary

dismissal. It maintains that the court was not arbitrary in refusing to allow LMB to

reopen its case because LMB attempted to submit additional evidence into the

record that was not presented during LMB’s presentation of its case. The Parish

contends that, following the submission of evidence and testimony by LMB, the

24-CA-46 4

trial court properly considered the facts presented to it.

La. C.C.P. art. 1972 provides, in pertinent part, “A new trial shall be granted,

upon contradictory motion of any party, in the following cases: (1) When the

verdict or judgment appears clearly contrary to the law and the evidence.” “A new

trial may be granted in any case if there is good ground therefor, except as

otherwise provided by law.” La. C.C.P. art. 1973. The standard of review for the

denial of a motion for new trial is abuse of discretion. Riley v. Hollander, 19-520

(La. App. 5 Cir. 5/28/20), 296 So.3d 1248. 1258, writ denied, 20-833 (La.

10/14/20), 302 So.3d 1123.

Here, the trial court considered two arguments in its determination of

whether to grant LMB’s motion for new trial: 1) whether the Parish had the burden

of proving LMB was not entitled to the writ of mandamus or the preliminary and

permanent injunctions; and 2) whether the trial court’s refusal to permit additional

testimony from witnesses or, alternatively, to re-open the case for the admission of

additional evidence constituted a miscarriage of justice. The trial court orally

found that the filing of the petition for a writ of mandamus and/or a permanent

injunction was not solely sufficient to meet a prima facie burden of proof that

would force a defendant to bear the burden of proof at the hearing on a rule to

show cause. The court then found that LMB failed to present a prima facie case.

The court further found that allowing LMB to call additional or rebuttal witnesses

would have been improper after the Parish’s oral motion for involuntary dismissal,

given the fact that there were no defense witnesses to rebut, and the proffered

exhibits could have been introduced during Mr. Badalamenti’s direct examination.

In our review of this matter, we will focus on whether the trial court properly

denied the motion for new trial on the basis that the reopening of the evidence after

the filing of the motion for involuntary dismissal would have been improper.

At the rule to show cause hearing for the writ of mandamus and the

24-CA-46 5

preliminary and permanent injunctions, there was a discussion between the court

and the parties as to whether LMB rested the presentation of it case. Counsel for

LMB, John I. Hulse, IV, presented one witness, Mr. Baladamenti, for direct

examination. Following Mr. Baladamenti’s testimony, the trial court instructed

Mr. Hulse to call his next witness. Mr. Hulse replied, “I don’t have any further

witnesses at this time. I’ll cross-examine [the Parish’s witnesses], if they produce

witnesses, Your Honor.” Immediately afterward, the Parish orally moved its

motion for involuntary dismissal, arguing LMB failed to present any evidence that

Omega was not the lowest responsive and responsible bidder. Mr. Hulse then

argued that the documents attached to LMB’s verified petition showed the court

that the Omega bid bond did not comply with the Louisiana Public Bid Statute, and

those documents could have been considered because they were evidence in the

record. In response, the Parish again argued that no evidence had been introduced

by LMB that indicated Omega failed to provide a low, responsible, and responsive

bid for the Project.

Subsequently, Mr. Hulse argued that he had not rested the case for LMB.

The following exchange occurred between Mr. Hulse and the trial judge, in

pertinent part:

MR. HULSE:

I have no more witnesses to call, but I can call a rebuttal
witness, if I need to. And I can put evidence in, Your Honor.

THE COURT:

You can’t call a rebuttal witness if the defense doesn’t call one.
And at this time, the defense has not called one.

MR. HULSE:

So the Court is not going to allow me to use the exhibits which

24-CA-46 6

are attached to the petition?

THE COURT:

No, I am not. I’m confused as to why you think that would be
admissible on this rule today without presenting the documents
in court today as to this hearing, subject to admissibility. Every
document you attach to a petition is not admissible. At trial,
that’s why we have documents admitted into the record, subject
to cross. Subject to the rules of evidence.

Simply because you attach it to a petition does not mean it’s
admissible at trial.

***

THE COURT:

And what evidence did you present today, Counsel, that
suggests that Omega did not have a viable bid?

MR. HULSE:

Well, the Omega bid is part of the documents which are
attached. And I would ask to offer, introduce, and file into
evidence the Omega bid, which is attached to the petition.

THE COURT:

I’m not going to allow that at this time, Counsel. You have
rested.

MR. HULSE:

I have not rested, Judge. I never stated that I rested. And I will
call a witness from Omega.

THE COURT:

Counsel, you did rest. You said you had no further witnesses,

24-CA-46 7

subject to cross-examination. That is resting.

MR. HULSE:

And I will now call a witness.

THE COURT:

Counsel, no.

The trial court then orally granted the Parish’s motion for involuntary dismissal.

According to La. C.C.P. art. 1672(B),

In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without
waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no right to
relief. The court may then determine the facts and render judgment
against the plaintiff and in favor of the moving party or may decline to
render any judgment until the close of all the evidence.
(Emphasis added).

During a bench trial, after the plaintiff has completed the presentation of his

evidence, the appropriate standard in determining whether an involuntary dismissal

should be granted is whether the plaintiff has presented sufficient evidence in his

case-in-chief to establish his claim by a preponderance of the evidence. Hagood v.

Sinnott, 23-168 (La. App. 5 Cir. 11/29/23), 377 So.3d 893, 896, citing Christiano

v. S. Scrap Recycling, 13-595 (La. App 5 Cir. 12/27/13), 131 So.3d 1059, 1063.

The trial court has much discretion in determining whether to grant a motion for

the involuntary dismissal of an action. Id. However, in order to prevent the

miscarriage of justice, the trial court should not hesitate to reopen a case for the

taking of additional evidence, and an appellate court should not hesitate to set aside

the trial court’s ruling on such matters in the case of a manifest abuse of discretion.

Kim v. Kim, 07-318 (La. App. 5 Cir. 10/30/07), 970 So.2d 1158, 1164, citing

Anderson v. Anderson, 98-675 (La. App. 5 Cir. 3/10/99), 732 So.2d 537, 540.

In the instant matter, LMB failed to introduce the documents attached to its

petition into evidence at the rule to show cause hearing. As such, the trial court

24-CA-46 8

was correct in finding that those documents were not considered evidence at that

time. See, Tucker v. Seaside Behavioral Center, LLC, 23-132 (La. App. 5 Cir.

12/27/23), 378 So.3d 879, 885, quoting Denoux v. Vessel Management Services,

Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88, where this Court held, “[E]vidence

not properly and officially offered and introduced cannot be considered, even if it

is physically placed in the record.” However, LMB immediately attempted to

introduce those documents and additional witness testimony into evidence, and the

trial court refused their admission.

In a similar case, Kim, supra, the plaintiff rested his case without introducing

any of the evidence referred to during direct examination. The defendant then

moved for a directed verdict on the grounds that no evidence had been submitted

into the record. The plaintiff’s attorney apologized and asked the trial judge to

admit his exhibits into evidence. The request was denied. In his reasons for

judgment, the trial judge stated that he declined to exercise his discretion in

controlling the presentation of evidence in order to allow the plaintiff to offer his

exhibits into evidence because the exhibits were not offered until after the plaintiff

rested and the defendant had moved for a directed verdict. The plaintiff appealed.

On appeal, this Court found that, in the interest of justice, the trial judge

abused his discretion in refusing to allow the plaintiff to introduce evidence into

the record after he rested his case. Id. at 1164. The panel reasoned that, although

the normal order of trial indicated the plaintiff should have moved to introduce his

exhibits into evidence prior to resting his case, the record reflected that he moved

to introduce them shortly thereafter. This Court vacated the ruling granting the

involuntary dismissal of the plaintiff’s case and remanded the matter for the trial

judge to allow the plaintiff to introduce his exhibits. Id.

After reviewing the record before us and considering the holding in Kim,

supra, we find that the trial court abused its discretion in refusing to allow LMB to

24-CA-46 9

introduce the documents attached to its petition into the record after it rested its

case. The trial court was aware of the documents sought to be introduced and the

relevancy of those documents to a motion for involuntary dismissal determination.

In order to prevent a miscarriage of justice in this particular case, we find that the

trial court should have reopened the case for the taking of additional evidence.

Consequently, we further find that the trial court abused its discretion in denying

LMB’s motion for new trial. Accordingly, we reverse the trial court’s ruling that

refused to allow LMB to introduce its exhibits into evidence or to call additional

witnesses already present at court, and we vacate the trial court’s ruling that

granted the involuntary dismissal of LMB’s petitions for preliminary and

permanent injunction and alternative writ of mandamus. We remand the matter to

the trial court for the opportunity for LMB to introduce additional evidence at the

rule to show cause hearing. Thereafter, the Parish may again move for an

involuntary dismissal, if it so chooses. Because we find that the trial court

erroneously refused the introduction of evidence before granting the motion for

involuntary dismissal and vacate the judgment on that basis, we express no opinion

on LMB’s remaining assignments of error.

DECREE

For the foregoing reasons, we vacate the trial court’s October 12, 2023

judgment that granted the Parish’s motion for involuntary dismissal, dismissed

LMB’s petition for preliminary injunction and alternative writ of mandamus with

prejudice, and vacated the September 1, 2023 temporary restraining order. The

matter is remanded to the trial court for further proceedings. The Parish is assessed

the costs of this appeal.

JUDGMENT VACATED;
REMANDED FOR FURTHER PROCEEDINGS

24-CA-46 10

LMB SERVICES, LLC NO. 24-CA-46

VERSUS FIFTH CIRCUIT

PARISH OF ST. CHARLES COURT OF APPEAL

STATE OF LOUISIANA

GRAVOIS, J., DISSENTS WITH REASONS

For the following reasons, I respectfully dissent from the majority’s

opinion and decision to vacate the trial court’s judgment that granted the Parish

of St. Charles’s motion for involuntary dismissal and dismissed LMB Services,

LLC’s petition for preliminary injunction and alternative writ of mandamus with

prejudice, after finding that the trial court abused its discretion in refusing to

allow LMB to introduce documents attached to its petition into the record after it

clearly had rested its case. The majority finds that in order to prevent a

miscarriage of justice, the trial court should have reopened the case for the

taking of additional evidence, and thus abused its discretion in denying LMB’s

motion for new trial.

According to the transcript of the hearing in question, after LMB’s

counsel presented testimony from LMB’s witness—the only witness called to

testify—and introduced certain exhibits (many of which were not admitted as a

result of meritorious objections made by the Parish), the trial judge specifically

asked counsel for LMB to call his next witness, to which counsel replied, “I

don’t have any further witnesses at this time. I’ll cross-examine the Plaintiff’s

[witnesses], if they produce witnesses, Your Honor” (emphasis added), to which

the court replied, “All right.” Immediately thereafter, in defense of the case,

counsel for the Parish orally moved for an involuntary dismissal of LMB’s case,

arguing that LMB had not produced any evidence whatsoever that the opposing

24-CA-46 1

bid by Omega Foundation Services (the apparent low bidder) was not the lowest

responsive and responsible bid. After argument on the motion, including LMB’s

counsel’s request to reopen the case for additional witnesses and evidence, the

trial court found that LMB had rested its case and granted the motion for

involuntary dismissal, concluding that LMB had not met its burden of proof in

its case-in-chief to allow the case to go on, and accordingly dismissed the case.

In my opinion, under the particular facts and circumstances presented, the trial

court properly granted the motion for involuntary dismissal of the case, in

accordance with La. C.C.P. art. 1672(B), because after LMB completed the

presentation of its evidence and rested its case, it was clear that LMB had not

shown that it was entitled to the relief requested. I would find no abuse of

discretion in the trial court’s rulings which granted the motion for involuntary

dismissal and which denied LMB’s motion for new trial, and affirm the trial

court’s rulings.

In my opinion, respectfully, the majority’s reliance on this Court’s opinion

in Kim v. Kim, 07-318 (La. App. 5 Cir. 10/30/07), 970 So.2d 1158, is misplaced.

In my opinion, Kim is distinguishable from the present case. It is clear that in

Kim, the exhibits in question “had been previously referred to during

presentation of the plaintiff’s case,” Id. at 1164, and were simply inadvertently

not offered and admitted into evidence before the plaintiff rested. We simply

don’t have that situation here. In his testimony, LMB’s witness did not discuss

Omega’s bid and Omega’s bid documents were not brought up during the

testimony, nor presented to the witness for review. In my opinion, LMB had

every opportunity to properly and completely present its case during its case-in-

chief, but simply failed to do so.

Accordingly, I respectfully dissent.

24-CA-46 2

LMB SERVICES, LLC NO. 24-CA-46

VERSUS FIFTH CIRCUIT

PARISH OF ST. CHARLES COURT OF APPEAL

STATE OF LOUISIANA

SCHLEGEL, J., DISSENTS FOR THE REASONS ASSIGNED BY
GRAVOIS, J.

24-CA-46 1

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 27, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-46
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE CONNIE M. AUCOIN (DISTRICT JUDGE)
JOHN I. HULSE, IV (APPELLANT) COREY M. OUBRE (APPELLEE) ROBERT L. RAYMOND (APPELLEE)

MAILED
ALEXANDER J. BREWSTER (APPELLANT)
ATTORNEY AT LAW
1100 POYDRAS STREET
SUITE 3600
NEW ORLEANS, LA 70163