Ryan Gootee Gen. Contractors, LLC v. Plaquemines Parish Sch. Bd. & One Construction, Inc.

180 So.3d 588

RYAN GOOTEE GENERAL CONTRACTORS, LLC

v.PLAQUEMINES PARISH SCHOOL BOARD & ONE CONSTRUCTION, INC.

No. 15–CA–325.

Court of Appeal of Louisiana, Fifth Circuit.

Nov. 19, 2015.

Murphy J. Foster, III, Jacob E. Roussel, Baton Rouge, LA, for Appellee, Ryan Gootee General Contractors, LLC.

Wayne J. Jablonowski, Slidell, LA, for Appellant, One Construction, LLC.

Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.

SUSAN M. CHEHARDY, Chief Judge.

In this case, defendant, One Construction, LLC, appeals from the district court's rulings granting a preliminary injunction in favor of plaintiff, Ryan Gootee General Contractors, LLC, and overruling One Construction's exceptions of improper venue, lack of subject matter jurisdiction, and non-joinder. For the reasons that follow, we affirm these rulings of the district court.

FACTS AND PROCEDURAL HISTORY

In the fall of 2014, the Plaquemines Parish School Board ("the School Board") solicited bids for the construction of a public works project, the South Plaquemines High School Recreational Field House and Restroom–Concession Buildings. The advertisement for bids was first published on September 23, 2014, followed by advertisements on September 30 and October 7, 2014. Four sealed bids were received, two of which were submitted by Gootee and One Construction. On October 23, 2014, the bids were unsealed. One Construction was the lowest bidder at $2,597,000.00; and Gootee was the second lowest bidder at $2,994,000.00. On November 10, 2014, the School Board voted to award the contract to One Construction. The contract was executed on November 17, 2014.

On that same date, Gootee filed a "Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, Mandamus, and Declaratory Judgment," seeking to enjoin One Construction and the School Board from executing the contract or proceeding with any work thereunder. Gootee alleged that One Construction's bid was defective for failing to comply with La. R.S. 38:2212(B)(5)¹ and the bidding instructions promulgated by the School Board.

On November 19, 2014, the district court granted Gootee a temporary restraining order and set a hearing for December 9, 2014, ordering One Construction and the School Board to show cause why the preliminary injunction should not be granted.

On December 2, 2014, the School Board filed exceptions of prescription, no right of action, no cause of action, improper venue, and improper cumulation. One Construction filed a "Memorandum in Opposition to Plaintiff's Motion and/or Claims for Injunctive Relief." On December 18, 2014, the district court sustained the School Board's exception of improper venue, transferring the matter, as to the School Board, to Plaquemines Parish. All other matters remained in the Twenty–Fourth Judicial District Court.

On December 22, 2014, One Construction filed exceptions of improper venue, lack of subject matter jurisdiction, and non-joinder. On December 30, 2014, the district court overruled these three exceptions.

On January 6, 2015, following several continuances, the court held the hearing on the preliminary injunction. At the outset of the hearing, the parties stipulated, and the court approved, that the court's decision on the preliminary injunction would be made permanent and a final judgment. Following argument, the court granted the preliminary injunction, which was made permanent, and issued its written judgment on January 23, 2015. This appeal timely followed.

ISSUES ON APPEAL

On appeal, One Construction submits seven assignments of error: (1) the district court erred in overruling its exception of improper venue; (2) the district court erred in finding that One Construction had waived its exception of improper venue; (3) the district court erred in overruling its exception of lack of subject matter jurisdiction; (4) the district court erred in overruling its exception of nonjoinder; (5) the district court erred in granting the preliminary injunction; (6) the district court erred in finding One Construction was not the lowest responsible and responsive bidder; (7) the district court erred in finding One Construction's bid was non-compliant with the public bid law.

DISCUSSION ²

Declinatory Exception of Improper Venue

The exception of improper venue is a question of law and is reviewed on a de novo basis. See Seghers v. LaPlace Equip. Co., 13–350 (La.App. 5 Cir. 2/12/14), 136 So.3d 64, 69.

Below, the district court did not reach the merits of the venue issue, finding that One Construction had waived its exception of venue. On December 2, 2014, the date the School Board filed its exceptions, One Construction instead filed an opposition contesting the merits of Gootee's suit. And on December 17 and 18, One Construction's attorney of record appeared at the hearings on the School Board's exceptions and presented argument regarding venue and joinder of the School Board. Thereafter, One Construction filed its own exceptions on December 22. The court heard these exceptions on December 30 and found that One Construction waived its exception of venue when it made a "general appearance" "by the filing of memos opposing the relief sought by Gootee."

On appeal, One Construction first claims that the issue of waiver is not before this Court. One Construction points out that the district court's written judgment of January 23, 2015 does not state that its exception of venue was "waived," but rather states that the exception was "denied." Because appellate courts review judgments and not reasons for judgment, One Construction submits that only the court's written judgment "denying" the exception, not its oral reasons "waiving" the exception, is at issue on appeal. In the alternative, One Construction submits that it did not waive its exception of venue.

We recognize the well-settled rule that a trial court's oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 09–571 (La.4/1/11), 61 So.3d 507, 572. Indeed, judgments are often upheld on appeal for reasons different than those assigned by the lower court. Id. Nevertheless, a court of appeal may use the lower court's reasons "to gain insight" into the court's judgment. Id. In this case, we uphold the district court's judgment for the same reason orally assigned by the court below: One Construction waived its exception of venue.

Up until 1997, a party's "general appearance" prior to pleading the declinatory exception of improper venue was sufficient to waive the exception. See Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743, 745 (La.App. 1 Cir.1977) ("A declinatory exception of improper venue is waived unless pleaded before filing an answer or making a general appearance."). In 1997, waiver through "general appearance" was eliminated altogether from Louisiana law.³ Dazet Mortg. Solutions LLC v. Faia, 12–486 (La.App. 5 Cir. 4/10/13), 116 So.3d 711,715. Consequently, insofar as the district court found the filing of One Construction's opposition constituted a "general appearance," the court erred. As the following demonstrates, however, we find the court did not err in concluding that One Construction waived its exception of venue.

Waiver of the exception of venue is governed by La. C.C.P. arts. 44 and 928. La. C.C.P. art. 44 provides: "Except as otherwise provided in this article or by other law, any objection to the venue, including one based on any article in this Chapter, is waived by the failure of the defendant to plead the declinatory exception timely as provided in Article 928."

La. C.C.P. art. 928 provides in pertinent part:

The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment.

One Construction failed to plead its venue exception prior to or in its opposition to Gootee's petition. Therefore, if One Construction's opposition constitutes an "answer" or "any pleading seeking relief," this failure resulted in the waiver of the exception of venue.

The substantive purpose of an answer is to respond to the allegations of a petition. Citadel Builders, L.L.C. v. Dirt Worx of La., L.L.C., 14–495 (La.App. 5 Cir.2014), 165 So.3d 117, 121, writ granted, reversed on other grounds, 14–2700 (La.5/1/15), 165 So.3d 908. La. C.C.P. art. 1003 specifies the form of an answer:

The answer shall comply with Articles 853, 854, and 863 and, whenever applicable, with Articles 855 through 861. It shall admit or deny the allegations of the petition as required by Article 1004, state in short and concise terms the material facts upon which the defenses to the action asserted are based, and shall set forth all affirmative defenses as required by Article 1005. It shall also contain a prayer for the relief sought. Relief may be prayed for in the alternative.

Beyond these requirements, "technical forms of pleading" are not required and "[e]very pleading shall be construed as to do substantial justice." La. C.C.P. arts. 854 and 865. The Louisiana Supreme Court has explained:

Pleadings must be construed reasonably so as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. Articles of the Code of Civil Procedure are to be construed liberally and with due regard for the fact that forms of procedure implement the substantive law and are not an end in themselves.... "Pleading is the ‘handmaid rather than the mistress' of justice."

Teachers' Retirement System v. Louisiana State Employees' Retirement System, 456 So.2d 594, 596 (La.1984).

In determining whether a...