Opinion
NUMBER 2012 CA 1734
06-07-2013
Robert S. Stassi Stephen P. Scullin New Orleans, LA Counsel for Plaintiff-Appellant Omega General Construction, LLC Kelly M. Rabalais Ronald S. Hagan Mandeville, LA Counsel for Defendant-Appellee St. Tammany Parish Government
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Two Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 2012-13710
Honorable William Knight, Judge
Robert S. Stassi
Stephen P. Scullin
New Orleans, LA
Counsel for
Plaintiff-Appellant
Omega General
Construction, LLC
Kelly M. Rabalais
Ronald S. Hagan
Mandeville, LA
Counsel for
Defendant-Appellee
St. Tammany Parish
Government
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY , J.
The successful bidder on a public works contract appeals a judgment denying its request for injunctive relief. For the following reasons, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
In July 2011, the Parish of St. Tammany advertised for public bid a project to renovate the St. Tammany Parish Jail. Omega General Construction, LLC successfully bid on the project as the lowest responsible bidder, and on October 19, 2011, St. Tammany Parish executed a contract with Omega General to perform the jail renovation. Included in the terms of the contract was a provision that "Integration work on the existing PLC/GUI will be performed by R and S Corporation." During the course of the construction, Omega General objected to enforcement of this provision. When St. Tammany Parish insisted that Omega General adhere to the terms of the contract, including the objectionable contract provision, Omega General filed a petition seeking preliminary and permanent injunctive relief, issuance of a writ of mandamus, declaratory judgment, and damages for breach of contract. By an order signed July 5, 2012, the trial court set for hearing Omega General's request for a preliminary injunction, or in the alternative, for issuance of a writ of mandamus. At the scheduled hearing, Omega General dismissed without prejudice its alternative request for issuance of a writ of mandamus, and following the hearing, the trial court denied Omega General's request for a preliminary injunction, which ruling Omega General now appeals.
MOTION TO DISMISS APPEAL
While this matter was pending before this court, St. Tammany Parish filed a motion to dismiss the appeal as moot because the work that Omega General sought to enjoin, i.e., its performance of the integration work provision contained in the contract, has been completed. Omega General acknowledges that the work has been performed. Thus, St. Tammany Parish contends that this court cannot afford Omega General any practical relief relative to its devolutive appeal of the judgment denying its request for a preliminary injunction.
Omega General has opposed the motion and asserts that the appeal should not be dismissed because it sought other relief in addition to the preliminary injunction. The motion was referred to this panel for consideration in conjunction with the merits of the appeal.
It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to such controversies. Citv of Hammond v. Parish of Tangipahoa, 07-0574, p. 6 (La. App. 1st Cir. 3/26/08), 985 So. 2d 171, 178. Where the purpose of the injunctive relief sought is to prevent specifically threatened future conduct and the act sought to be enjoined has been committed, there can be no ground for an injunction. An appeal is moot if an appellate court cannot render a meaningful decision that will afford practical relief. Thus, when an appeal is taken from an order denying injunctive relief, and the act sought to be enjoined is accomplished pending appeal, the appeal will be dismissed as moot. Silliman Private School Corporation v. Shareholder Group, 00-0065, p. 5 (La. App. 1st Cir. 2/16/01), 789 So. 2d 20, 23, writ denied, 01-0594 (La. 3/30/01), 788 So. 2d 1194.
At the hearing from which the judgment appealed stems, Omega General stipulated that it was dismissing without prejudice its request for mandamus relief, and the parties agreed that the only matter to be decided by the court that day was the preliminary injunction. The judgment appealed simply states that the trial court denied the rule for preliminary injunction filed by Omega General and does not grant or deny any other relief or demands.
In its reasons for judgment, the trial court found that because Omega General had not proven that St. Tammany Parish had violated La. R.S. 38:2212.7 and because there was a definable amount of damages, Omega General could not prove irreparable injury; therefore, the trial court denied Omega General's request for a preliminary injunction. Thus, as acknowledged by Omega General in its brief to this court, the other claims asserted by it are "still pending" before the trial court.
Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury, loss, or damage if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. A showing of irreparable harm is not required in cases where the conduct sought to be restrained is unlawful, as when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law. State Machinery & Equipment Sales. Inc. v. Iberville Parish Council, 05-2240, pp. 3-4 (La. App. 1st Cir. 12/28/06), 952 So. 2d 77, 81.
Notably, the trial court appeared to find merit in Omega General's contention that the integration work provided for in the contract could not be classified as an "allowance" under La. R.S. 38:2212(A)(3)(f). At the hearing, however, the court indicated that whether it was legal for St. Tammany Parish to designate that the integration work be performed by a specific company was "may be another subject for another day."
Under Article 5, § 10 of the Louisiana Constitution, courts of appeal have broad supervisory jurisdiction. However, even with such broad power, this court will not act on the merits of a claim not yet acted upon by the lower tribunal Jordan v. City of Baton Rouge, 93-2125, p.7 n.5 (La. App. 1st Cir. 3/10/95), 652 So. 2d 701, 705 n.5; see also Uniform Rules-Courts of Appeal, Rule 1-3. Hence, we decline to consider the issues not determined by the judgment before us on appeal. See Hudson v. East Baton Rouge Parish School Board, 02-0987, p. 3 (La. App. 1st Cir. 3/28/03), 844 So. 2d 282, 285; Knabel v. Lewis, 00-1464, p. 7 (La. App. 1st Cir. 9/28/01), 809 So. 2d 314, 319, writ denied, 01-2892 (La. 3/8/02), 811 So. 2d 886.
Consequently, the only matter pending before us on appeal is the trial court's denial of Omega General's request for a preliminary injunction, which was rendered moot upon Omega General's completion of the renovation work mandated in its contract with St. Tammany Parish, including the objectionable provision for the integration work. Any pronouncement by this panel regarding the correctness of the trial court's analysis of Omega General's request for a preliminary injunction would be merely advisory and could not bring about Omega General's nonperformance of the objectionable provision contained in the contract. Accordingly, we grant St. Tammany Parish's motion to dismiss Omega General's devolutive appeal of the trial court's judgment denying its request for a preliminary injunction as moot. Costs of this appeal are assessed to Omega General Construction, LLC.
APPEAL DISMISSED.