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Great Lakes Dredge & Dock Co., LLC v. State

Court of Appeal of Louisiana, First Circuit

November 7, 2014

GREAT LAKES DREDGE & DOCK COMPANY, LLC
v.
STATE OF LOUISIANA THROUGH THE COASTAL PROTECTION AND RESTORATION AUTHORITY

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana. Docket No. 623,788. Honorable Todd W. Hernandez, Judge.

Page 683

Michael C. Drew, L. Etienne Balart, New Orleans, LA & James C. Percy, Baton Rouge, LA, Counsel for Plaintiff/Appellant Great Lakes Dredge & Dock Company, LLC.

John B. Dunlap, III, Jennifer A. Fiore, Hunter R. Bertrand, Baton Rouge, LA, Counsel for Defendant/Appellee Louisiana Coastal Protection and Restoration Authority.

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

OPINION

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[2014 0249 La.App. 1 Cir. 2] GUIDRY, J.

A rejected bidder appeals a trial court judgment sustaining exceptions raising the objections of unauthorized use of summary proceedings and no cause of action to dismiss its petition for issuance of a writ of mandamus. Finding the matter was properly dismissed, we affirm.

FACTS AND PROCEDURAL HISTORY

The State of Louisiana through the Coastal Protection and Restoration Authority (Coastal Protection) advertised for bid work related to the preservation of barrier islands along coastal Louisiana. The deadline for submission of bids was August 6, 2013.[1] Only two bids were received -- one from Great Lakes Dredge & Dock Company, LLC, and a second bid from Weeks Marine, Inc. By receipt of separate letters, each dated August 13, 2013, both of the bids were rejected. Great Lakes' bid was rejected as non-responsive because it failed to complete a section of the unit price bid form labeled " Ref. No. 16." Weeks Marine's bid was rejected on the grounds that its base bid exceeded the preconstruction estimated funding available for the project. In rejecting the bids, Coastal Protection advised both bidders " that no contract will be awarded at this time to any bidder, and that [the] project will be re-advertised in the near future."

Thereafter, on August 14, 2013, Great Lakes filed a petition for a writ of mandamus, asserting that it was " the apparent lowest responsible bidder" and that its failure to specifically write in the unit price for line item 16 on the bid form was a mere clerical error that did not justify the rejection of its bid. Thus, Great Lakes requested that the trial court either issue an alternative writ of mandamus against Coastal Protection compelling it to award Great Lakes a contract for the advertised [2014 0249 La.App. 1 Cir. 3] project or issue a rule to have Coastal Protection show cause why such a contract should not be awarded to Great Lakes.[2]

The trial court set the matter for hearing on August 26, 2013; however, prior to the scheduled hearing, Coastal Protection answered Great Lakes' petition for mandamus and asserted exceptions raising the objections of unauthorized use of summary proceedings and no cause of action. A combined hearing on the petition for a writ of mandamus and on the exceptions filed by Coastal Protection was held on August 29, 2013.[3] At the hearing, the parties presented arguments and agreed to submit

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the case on the briefs and exhibits offered into evidence, with no live testimony. The trial court admitted the exhibits, considered the arguments of the parties, and took the matter under advisement. On September 5, 2013, the trial court issued written reasons for judgment (titled " Ruling on Defendant's Exceptions" ) sustaining the exceptions filed by Coastal Protection and indicating that Great Lakes' claims were to be dismissed with prejudice. Great Lakes devolutively appealed this ruling of the trial court, and a written judgment incorporating the written ruling was signed by the trial court on February 6, 2014.

DISCUSSION

The trial court sustained exceptions raising the objections of unauthorized use of summary proceedings and no cause of action to dismiss Great Lakes' petition for the issuance of a writ of mandamus. See La. C.C.P. arts. 926(A)(3) and 927(A)(5). Coastal Protection raised the objections based on its assertion that [2014 0249 La.App. 1 Cir. 4] its decision to reject Great Lakes' bid was a discretionary act and therefore not subject to an action in mandamus.

As pertaining to a public entity, mandamus is a writ directing a public officer to perform a ministerial duty required by law. See La. C.C.P. arts. 3861 and 3863. A " ministerial duty" is one in which no element of discretion is left to the public officer; in other words, a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. Newman Marchive Partnership, Inc. v. City of Shreveport, 07-1890, p. 5 (La. 4/8/08), 979 So.2d 1262, 1266. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy is not available to command the performance of an act that contains any element of discretion, however slight. Bonvillian v. Department of Insurance, 04-0332, p. 3 (La.App. 1st Cir. 2/16/05), 906 So.2d 596, 599, writ not considered, 05-0776 (La. 5/6/05), 901 So.2d 1081. However, although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless, been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials. Bonvillian, 04-0332 at p. 4, 906 So.2d at 599.

In Central Community School Board v. East Baton Rouge Parish School Board, 08-0036, p. 18 (La.App. 1st Cir. 6/6/08), 991 So.2d 1102, 1114, writs denied, 08-1480, 08-1538 (La. 12/12/08), 997 So.2d 561, this court observed that La. C.C.P. art. 2592 provides, in part, that summary proceedings may be used for trial or disposition of a mandamus proceeding. Thus, as mandamus proceedings are clearly allowed to be asserted as summary proceedings, the trial court erred in sustaining the dilatory exception raising the procedural objection of unauthorized use of summary proceedings. See Central Community School Board, 08-0036 at p. 18, 991 So.2d at 1114.

[2014 0249 La.App. 1 Cir. 5] The peremptory exception raising the objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Bunge North America, Inc. v. Board of Commerce & Industry and Louisiana Department of Economic Development, 07-1746, p. 11 (La.App. 1st Cir. 5/2/08), 991 So.2d 511, 519, writ denied, 08-1594 (La. 11/21/08), 996 So.2d 1106. Generally, no evidence may be introduced to support or controvert the exception of no cause of action. However, an exception to this rule has been recognized by the jurisprudence that a court may consider evidence admitted

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without objection to enlarge the pleadings. Maw Enterprises. L.L.C. v. City of Marksville, 14-0090, p. 7 (La. 9/3/14), 149 So.3d 210, 2014 WL 4355955. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the facts, the plaintiff has not stated a claim for which he or she can receive legal remedy under the applicable substantive law. Maw Enterprises, L.L.C, 14-0090 at p. 7, __ So.3d at __.

In this appeal, Great Lakes raises two assignments of error: (1) that the trial court erred in finding that Coastal Protection had discretion to reject all bids for " just cause" ; and (2) that the court erred in finding that Coastal Protection properly rejected Great Lakes' bid as non-responsive. Thus, in considering Great Lakes' first assignment of error, we must determine whether Coastal Protection's decision to reject Great Lakes' bid involved any element of discretion so as to properly preclude Great Lakes from having a cause of action for mandamus relief.

The authority of a public entity to reject bids is generally found in La. R.S. 38:2214(B), which provides:

The public entity may reject any and all bids for just cause. Just cause for the purpose of the construction of public works is defined, but is not limited to the following circumstances:
[2014 0249 La.App. 1 Cir. 6] (1) The public entity's unavailability of funds sufficient for the construction of the proposed public work.
(2) The failure of any bidder to submit a bid within an established threshold of the preconstruction estimates for that public work, ...

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