author: JOAN BERNARD ARMSTRONG, Chief Judge. BONIN, J.,

text:
    PONTCHARTRAIN MATERIALS CORPORATION v. QUICK RECOVERY COATINGS SERVICES, INC. and Stolt Offshore, Inc. Quick Recovery Coating Systems, Inc. v. Stolt Offshore, Inc., Stolthaven New Orleans, L.L.C. and Stolt-Nielsen Transportation Group Ltd.
    No. 2010-CA-1476 C/W 2010-CA-1477.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 6, 2011.

      Randall L. Kleinman, Law Offices of Randall L. Kleinman, LLC, New Orleans, LA, for Appellant, Quick Recovery Coating Systems, Inc.
    S. Ault Hootsell, III, Allen C. Miller, Phelps Dunbar LLP, New Orleans, LA, for Defendant/Appellee, Stolt Offshore, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., and Judge PAUL A. BONIN).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11 Quick Recovery Coatings Systems, Inc. (Quick Recovery) appeals from the summary judgment of the trial court dismissing with prejudice its claims against Stolt Offshore, Inc. (Stolt). For the reasons that follow, we affirm the summary judgment.

This litigation arises from a December 21, 2000, contract for painting and stenciling forty Stolt storage tanks, entered into between Quick Recovery and Stolt. In furtherance of its obligations under the contract, Quick Recovery obtained materials and laborers from Pontchartrain Materials Corporation (PMC). On March 7, 2001, Quick Recovery sold several accounts receivable related to the contract to Hibernia National Bank (Hibernia) pursuant to a factoring agreement. Stolt terminated the contract in October of 2001, claiming Quick Recovery’s performance was both untimely and inadequate.

On January 29, 2002, PMC filed suit in the 25th Judicial District Court for the Parish of Plaquemines against Quick Recovery and Stolt for $4,705.21, ^representing labor and materials furnished to Quick Recovery, as contractor, and Stolt, as owner, in furtherance of the painting and stenciling contract. Quick Recovery filed an exception of lis pendens, based on the pendency of a suit by PMC against Brian Schweda and Quick Recovery. Stolt answered the Plaquemines suit with a general denial and claim that PMC’s claim is barred for failure to follow the provisions of the Louisiana Private Works Act. Stolt also filed a cross-claim against Quick Recovery seeking indemnity for any losses Stolt may incur, including any sum it may be condemned to pay PMC, and for attorney’s fees.

On May 24, 2002, Quick Recovery filed suit in Orleans Parish against three Stolt legal entities, alleging various activities by the defendants that allegedly prevented Quick Recovery from proceeding on schedule in carrying out its contractual obligations, and caused Quick Recovery to incur increased labor and equipment costs of $146,698.28. Quick Recovery also alleged that Stolt engaged in unfair trade practices, and improperly terminated its contract with Quick Recovery, leaving an unpaid balance under the contract of $407,109.86. Quick Recovery sought unspecified additional monetary damages to be determined by the trier of fact, and treble damages. Stolt filed peremptory, declinatory, and dilatory exceptions, including a declinatory exception of improper venue. On September 28, 2002, the Civil District Court for the Parish of Orleans granted exceptions of no cause of action asserted by Stolthaven New Orleans, LLC and Stolt-Nielsen | ^Transportation Group, Ltd., and dismissed Quick Recovery’s claims against those defendants. The Orleans Parish court dismissed Quick Recovery’s claims against all defendants allegedly arising under the Louisiana Consumer Protection Law and all other theories of unfair trade practices. The court granted the exception of improper venue, and transferred the case to the 25th Judicial District Court for the Parish of Plaquemines. It does not appear from the record on appeal that Quick Recovery sought review of the judgment on these exceptions.

On June 16, 2003, Hibernia National Bank (Hibernia) filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson against Quick Recovery and Brian Schweda (the Hibernia suit). Mr. Schweda was alleged to have executed a continuing personal guaranty of Quick Recovery’s obligations under its factoring agreement with Hibernia. Hibernia, as owner and holder for valuable consideration of the factoring agreement, in which Quick Recovery represented that its accounts were valid and not subject to discounts or disputes and agreed to reimburse Hibernia for any disputed accounts, sued Quick Recovery and Mr. Schweda. Hibernia claimed reimbursement for seven invoices, totaling $141,196.68, that were the subject of the Civil District Court suit transferred to Twenty-Fifth Judicial District Court.

There having been no further action in the Hibernia suit, on November 15, 2007, Stolt filed a motion seeking dismissal of Quick Recovery’s claims against it 14on the grounds of abandonment, citing La.Code Civ. Proc. art. 561. The trial court granted Stolt’s motion on December 11, 2007.

Upon the transfer of the Orleans Parish case to the 25th Judicial District Court, where it was given No. 50-580, it was consolidated with No. 48-253, in which PMC had sued Quick Recovery and Stolt. Stolt filed its answer and a reconventional demand against Quick Recovery, claiming breach of contract, untimely performance and inadequate performance, seeking damages of not less than $156,257.63. Quick Recovery filed an answer denying the allegations of the reconventional demand.

On March 12, 2010, Stolt filed a motion for summary judgment on the grounds of abandonment, claiming that on December 11, 2007, the 24th Judicial District Court for the Parish of Jefferson dismissed, with prejudice, Quick Recovery’s claims against Stolt, involving the same parties, in their same capacities, and involving the same transaction and occurrence. Quick Recovery did not appeal or seek supervisory review of the abandonment judgment.

In support of the motion for summary judgment, Stolt filed a copy of its contract with Quick Recovery outlining the obligations of the parties; a copy of PMC’s petition in No. 48-253; a copy of the factoring agreement between Quick Recovery and Hibernia, including Mr. Schweda’s personal guaranty of Quick Recovery’s obligations under the agreement; Hibernia’s petition in the Hibernia suit; the answer and third-party demand against Stolt filed by Quick Recovery and |aMr. Schweda to Hibernia’s suit; Stolt’s motion for dismissal on the grounds of abandonment; and the 24th Judicial District Court’s order of dismissal.

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions, and the procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Proc. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a 1 ^genuine issue of material fact for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La.Code Civ. Proc. art. 967 B.

Quick Recovery contends that the dismissal of its third party demand in the Hibernia suit cannot form the basis for res judicata because it was not a final judgment in which the controversy between Quick Recovery and Stolt was litigated. However, La.Code Civ. Proc. art. 531 provides that when two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by exception thereto as provided in La.Code Civ. Proc. art. 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

The fact that judgment was entered, properly dismissing the Jefferson Parish litigation, on December 11, 2007, is undisputed. Likewise undisputed is the fact that Quick Recovery took no action, either by filing a motion for new trial or seeking a writ to the appellate court, to obtain review of that judgment. The statutory time limits for seeking such review having long passed, the judgment is final and conclusive within the meaning of La.Code Civ. Proc. art. 531.

17Quick Recovery contends that the abandonment judgment cannot support article 531’s preclusion of the Plaquemines Parish suit, claiming that case law has uniformly held that dismissals for abandonment are without prejudice. However, this Court, in Long v. Performance Motorwerks, Inc., 00-0861, p. 3 (La.App. 4 Cir. 3/7/01), 782 So.2d 649, 651, affirmed a judgment rendered pursuant to La.Code Civ. Proc. art. 561, dismissing the plaintiffs claim with prejudice on the grounds of abandonment. Furthermore, in none of the cases cited by Quick Recovery in support of its position was the court faced with the issue of whether the dismissal was a final judgment, nor were the parties involved in companion cases as in the instant case. In City of New Orleans v. Westwego Canal & Terminal Co., 206 La. 450, 19 So.2d 201 (1944) is likewise inappo-site as it does not address the effect of La.Code Civ. Proc. art. 531 on dismissal for failure to prosecute.

Quick Recovery argues that the fact that Stolt filed an exception of Us pendens precludes application of the preclusion provided by La.Code Civ. Proc. art. 531. However, in the instant case, the Jefferson suit was not resolved on the Stolt exception, but rather by an unappealed judgment granting a motion for abandonment.

Quick Recovery relies on the res judica-ta statute, La. R.S. 13:4231(3), providing, inter alia, that a judgment in favor of a party is conclusive in any | ^subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. The instant case is not one in which Stolt is relying on issue preclusion as set forth in the statute. Stolt relies instead on La.Code Civ. Proc. art. 531, as discussed herein.

Quick Recovery contends that La.Code Civ. Proc. 531 is inapplicable to the instant case because the two lawsuits do not involve the same transaction and do not involve the same parties in the same capacities. It suggests that article 531 does not apply because the objects of the two suits differ. Quick Recovery takes the position that the fact that one suit seeks to transfer liability to Stolt for a defined amount of invoices rejected by Stolt, based on a theory of indemnity or contribution, while the other suit seeks damages from Stolt asserting breach of contract and seeking treble damages and attorney fees for alleged statutory violations makes article 531 inapplicable.

Quick Recovery bases this argument on La. R.S. 13:4231, the res judicata statute, and Jensen Const. Co. v. Dept. of Transp. and Development, 542 So.2d 168 (La.App. 1st Cir.1989). That case involved an initial lawsuit in which the contractor sought to have a competing bid for a public works project thrown out on the basis that it violated the Public Contracts Law (PCL) and guidelines and policies established by the Department of Transportation and Development (DOTD) itself. In this first case, the contractor sought a declaratory judgment that the bid violated the PCL and preliminary and permanent injunctions against DOTD’s entering into the contract with the competing bidder. Following trial, the |court rendered judgment in favor of DOTD. Prior to the expiration of the delays to appeal, the contractor then sued both DOTD and the competing bidder in a second suit, this time to annul and be awarded the contract. Defendants filed an exception of lis pendens, since the first suit arguably was still pending. The court of appeal affirmed the trial court’s judgment granting the exception of lis pen-dens. It held that while the preclusion doctrines embodied in La.Code Civ. Proc. art. 531 and lis pendens are stricti juris, and any doubt concerning application of res judicata or lis pendens must be resolved against their application, the facts in the case demonstrated identity of parties and of cause. Notably, the court held, under an even more restrictive pre-amendment statute, that even the absence of a named defendant in the initial suit did not defeat identity of parties:

The jurisprudence does not demand that the parties in the two lawsuits be physically identical. The “identity of parties” requirement is met whenever “the same parties, their successors, or other appear so long as they share the same ‘quality’ as parties.”
With respect to the only issue in both lawsuits, that is, the validity of the [competing] bid, DOTD and [the competing bidder] share identical interests ... [B]oth DOTD and [the competing bidder] share a mutuality of interest in the validity of the bid, and for the purposes of lis pendens, share the same “quality” as parties. [The competing bidder’s physical absence as a party in the first action, therefore, does not defeat the exception of lis pendens. [Citations omitted.]

This Court interpreted the “same capacity” requirement under current article 531 in Fire & Cas. Ins. Co. of Connecticut v. Sewerage and Water Bd. of New Orleans, 01-0898, p. 7 (La.App. 4 Cir. 5/29/02), 820 So.2d 632, 635:

The identity of parties requirement for lis pendens is not an absolute requirement, but turns on whether the | inparties added or omitted would be necessary to reach a judgment on all of the issues asserted against the common parties in both suits. [Emphasis added; citations omitted.]

We agree with Stott’s position that Quick Recovery’s status as a third-party plaintiff in the Jefferson Parish litigation and as first-party plaintiff in the instant case does not defeat the “same capacity” argument. The contractual relationship between the parties is the same, and their capacities within that relationship are identical in the two lawsuits. They are the only parties necessary to reach a judgment on all the common interests asserted in the two proceedings involving and arising out of the contract.

Quick Recovery also relies on Jensen Construction Company, supra, for the proposition that the Jefferson Parish and Plaquemines Parish cases did not involve the same transaction. Interestingly, even applying the requirement that the suits must share an identity of cause, cause being defined as the principle that is the basis for a specific demand and is related to the party making the demand, the court found identity between the lawsuits. This Court held in Glass v. Alton Ochsner Medical Foundation, 02-0412, pp. 5-6 (La. App. 4 Cir. 11/6/02), 832 So.2d 408, 406-407, that since the 1991 amendment to article 531, there is no longer a requirement that the pending suits share the same cause of action. It is necessary only that the suits arise out of the same transaction or occurrence. In the instant case, Quick Recovery’s claims in both cases arose out of the contract. Those claims went to final, unappealed judgment in the Jefferson Parish litigation and cannot be reasserted in another forum.

| ] finally, Quick Recovery claims that this is a case involving “exceptional circumstances,” requiring this Court to ignore the clear language of the relevant procedural articles. This argument was not made in the trial court, but was raised for the first time on appeal. The Louisiana Supreme Court noted in Council of the City of New Orleans v. Washington, 09-1067, p. 3 (La.5/29/09), 9 So.3d 854, 856 that the “well-settled jurisprudence establishes that, as a general matter, appellate courts do not consider issues raised for the first time” on appeal.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

BONIN, J., dissents with reasons.

BONIN, J.,

dissents with reasons.

hi respectfully dissent and would, pursuant to La. C.C.P. art. 2164, remand the matter to the trial court in order for the trial judge to consider whether “exceptional circumstances justify relief from the res judicata effect” of the judgment which dismissed with prejudice Quick Recovery’s third-party demand against Stolt. See LA. R.S. 13:4232 A(l). See Jenkins v. State, 615 So.2d 405, 406 (La.App. 4th Cir.1993) (noting that statute “is designed to allow the court to balance the principle of res judicata with the interests of justice”); see also McClendon v. State, Dept. of Transp. and Development, 626 So.2d 729, 731-732 (La.App. 5 Cir.1993), (Wicker, J., concurring).

A

Quick Recovery failed to plead the “exceptional circumstances” in the trial court and did not argue them to the trial judge. Because Quick Recovery has first |?argued “exceptional circumstances” as a basis for relief from the effect of res judicata in this court, we ordinarily would not consider the issue. As a general matter “appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the District Court has not addressed.” Council of the City of New Orleans v. Washington, 09-1067, p. 3 (La.5/29/09), 9 So.3d 854, 856. But Quick Recovery makes a compelling argument that there are exceptional circumstances which justify relief from the res judicata effect of the judgment of the 24th Judicial District Court. And it would be just to allow Quick Recovery to urge those circumstances to the trial judge for his evaluation and ruling.

B

The judgment rendered on Quick Recovery’s third-party demand, by which the demand was dismissed with prejudice, is erroneous. When Stolt filed its motion to dismiss on the grounds that Quick Recovery had abandoned its third-party demand, the proper relief was dismissal without prejudice. See Tasch, Inc. v. Horizon Group, 08-0635, p. 4 (La.App. 4 Cir. 1/7/09), 3 So.3d 562, 565 (“However, dismissals under La. C.C.P. art. 561 are to be without prejudice. DeSalvo v. Waguespack, 187 So.2d 489 (La.App. 4 Cir.1966). Therefore, the trial court’s judgment of dismissal is hereby amended to read without prejudice.”)

We ought to straightforwardly acknowledge the correctness of Quick Recovery’s point that the judgment on the grounds of abandonment which dismissed with prejudice its third-party demand was wrong; the dismissal should have been without prejudice. And, of course, had it been without prejudice, we |3would not even be concerned with res judicata in this case. See LA. C.C.P. ART. 1673 (“A judgment of dismissal with prejudice shall not have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action”). See also Charbonnet v. State Realty Co., 155 La. 1044, 1049, 99 So. 865, 867 (1924) (observing that “a judgment dismissing a suit for having been discontinued or abandoned could not be the basis for a plea of res adjudicata”). The legal consequence of a plaintiffs abandonment for non-action of a lawsuit is that its dismissal “merely bars his right to continue with the prosecution of that suit. It does not prevent his bringing another suit for the same cause of action.” Losch v. Greco, 173 La. 223, 228, 136 So. 572, 573 (1931); see also City of New Orleans v. Westwego Canal & Terminal Co., 206 La. 450, 453, 19 So.2d 201, 202 (1944).

C

Claims for relief from the res judicata effect of a judgment are decided on a case-by-case basis. See Spear v. Prudential Property and Cas. Ins. Co., 98-1663 (La. App. 4 Cir. 1/13/99), 727 So.2d 640, 643. Based upon the record facts, in my view it would be worthwhile for the trial judge to evaluate the progress of the Plaquemines Parish lawsuit during the period from the dismissal of Hibernia Bank’s principal demand in Jefferson Parish (March 8, 2004) through the dismissal of Quick Recovery’s third-party demand (December 11, 2007). During that time period, in this action pending in Plaquemines, Stolt filed its re-conventional demand against Quick Recovery, a status conference was scheduled at Quick Recovery’s request, and a trial order issued scheduling the trial date for June 24, 2008, and providing for pretrial discovery and pleading cut-off dates. Thus, one can clearly observe that although no action was being taken by Quick Recovery in Jefferson l4Parish, it was actively pursuing its cause of action against Stolt in Plaque-mines Parish.

Moreover, it would be worthwhile for the trial judge to evaluate the ongoing prosecution of the Plaquemines Parish action after the dismissal on the grounds of abandonment. Stolt filed in the Plaque-mines suit a motion to compel discovery and a motion to continue the trial in 2008. In 2010 Quick Recovery filed a 1442 Notice of Deposition for Stolt in response to which Stolt sought a protective order. Later in the year a new trial date was assigned, and Stolt filed its motion for summary judgment based upon res judicata. Clearly, Quick Recovery had not abandoned its cause of action in the Plaquemines litigation and was intending to pursue its claim in this litigation. See Jenkins, supra, 615 So.2d at 407 (Byrnes, J., concurring).

Tellingly, in my view, both parties were actively prosecuting their claims in Plaque-mines for the three years before the erroneous dismissal with prejudice and for the three years following the erroneous dismissal.

D

La. R.S. 13:4232 “is designed to protect those drawn into error by an awkward factual or legal scenario, not those who can allude to no circumstance to justify their inaction below.” Spear, supra, 727 So.2d at 643. We granted relief from the effect of res judicata in a case where the federal court dismissed with prejudice for failure to prosecute the action under Rule 41(b) of the Federal Rules of Civil Procedure, which authorized such action, and the dismissed plaintiff had not appealed such dismissal. Jenkins, supra, 615 So.2d at 406. In concurring, Judge Byrnes importantly observed that “the merits of respondent’s claim have never been heard.” Id., 615 So.2d at 407 (Byrnes, J., concurring).

Again, in a situation which we described as “a close one,” then-Judge Armstrong wrote that “we are convinced that this close issue should be resolved Ragainst application of res judicata. Mavromatis v. Lou-Mar, Inc., 632 So.2d 828, 831 (La. App. 4 Cir.1994). After discussing the considerations for applying res judicata to defeat a claim, she importantly noted that the possible harms to lessening of judicial efficiency and increasing the burdens of litigation on a party, while not “trivial matters,” “are preferable to possible loss of the plaintiffs substantive rights without their merits ever having been addressed if res judicata were to be applied, when, perhaps, it should not be.” Id. at 832 (emphasis added).

Thus, it may well be that the failure of Quick Recovery to appeal the Jefferson Parish judgment of dismissal with prejudice had the technical result of a final judgment’s acquiring the authority of the thing adjudged, i.e. res judicata. See Tolis v. Bd. of Supervisors of Louisiana State University, 95-1529 (La.10/16/95), 660 So.2d 1206; Colins v. Magnolia Marketing Co., 01-1234 (La.App. 4 Cir. 5/8/02), 817 So.2d 1214. And the fact that the prior adjudication by Jefferson Parish judgment was in error would not prevent the application of the effect of res judicata. See Kelty v. Brumfield, 559 So.2d 907, 909 (La.App. 4 Cir.1990).

But the reality that the merits of an action have not actually been adjudicated may justify relief from such effects, and other circuits have so held. See, e.g., McGregor v. Hospice Care of Louisiana in Baton Rouge, L.L.C., 09-1357 (La.App. 1 Cir. 2/12/10), 36 So.3d 272 (judicially sanctioned severance of medical malpractice claim is not barred by res judicata due to adjudicated contract claim); Ebey v. Harvill, 26,373, p. 3 (La.App. 2 Cir. 12/7/94), 647 So.2d 461, 464 (“The concept of res judicata should be rejected when doubts exist as to whether a plaintiffs substantive rights actually have been previously addressed and finally resolved.”); Brouillard v. Aetna Cas. & Sur. Co., 94-1559, p. 3 (La.App. 3 Cir. 5/10/95), 657 So.2d 231, 233 (“this issue clearly has not been actually litigated”); and McClendon, supra, 626 So.2d at 731 (subsequent change in law to plaintiffs detriment justified not applying the effect of res judicata).

IfiE

It may well be that the trial judge would decide that there are no exceptional circumstances justifying relief from the effect of res judicata. See, e.g., Centanni v. Ford Motor Co., 636 So.2d 1153 (La.App. 3 Cir. 5/4/94); Classen v. Hofmann, 06-560 (La. App. 5 Cir. 11/28/06), 947 So.2d 76. But I think that the plaintiff ought to be able to try to demonstrate the exceptional circumstances because the merits of his claim for $400,000 in damages against Stolt have never been adjudicated, and the basis for the so-called adjudication, i.e., the dismissal of its third-party demand for abandonment, occurred while both Stolt and the plaintiff were actively and actually pursuing the same claims in Plaquemines Parish in this suit.

Accordingly, I respectfully dissent.

      . Pontchartrain Materials Corporation v. Quick Recovery Coatings Systems, Inc., et al, No. 48-253 on the docket of the Twenty-Fifth Judicial District Court for the Parish of Plaquemines.

      . Mr. Schweda was alleged to have guaranteed certain of Quick Recovery’s obligations.

        . Quick Recovery v. Stolthaven New Orleans, LLC, Stolt, and Stolt-Nielsen Transportation Group, Ltd., No. 02-8202 on the docket of the Civil District Court for the Parish of Orleans

        . Hibernia National Bank v. Quick Recovery Coatings Services, Inc. and Brian Schweda, No. 595-470 on the docket of the 24th Judicial District Court for the Parish of Jefferson

      .By Order dated September 3, 2004.

      . Art. 925. Objections raised by declinatory exception; waiver
      A. The objections which may be raised through the declinatory exception include but are not limited to the following:

      (3) Lis pendens.

      C. All objections which may be raised through the declinatory exception, except the court’s lack of jurisdiction over the subject matter, are waived unless pleaded therein.

      . St. Tammany Parish Sewerage Dist. No. 7 v. Monjure, 95-0937 (La.App. 1 Cir. 12/15/95), 665 So.2d 801 and DeSalvo v. Waguespack, 187 So.2d 489 (La.App. 4th Cir.1966) did not address La.Code Civ. Proc. art. 531’s preclu-sive effect language since there was no companion suit to provide appropriate context to support application of the article.

      . Were the issue properly before this court, the result would be the same. Quick Recovery contends that because La.Code Civ. Proc. art. 5051 notes that the code articles are to be construed liberally, article 531 should not be read to preclude continuation of the Plaque-mines Parish lawsuit. We read article 5051 in pari material with La.Code Civ. Proc. art. 5052, requiring that when the language of an article is clear and free from ambiguity, its letter is not to be disregarded under the pretext of pursuing its spirit. Article 531 clearly provides in mandatory language that, while a plaintiff may continue to prosecute any of its suits, the first final judgment shall be conclusive of all the suits. We find no basis in the record, taken as a whole, to support a deviation from the clear language of the Code.

      . See also Gulf Coast Bank and Trust Co. v. Elmore, 10-1237, p. 5, n. 6 (La.App. 4 Cirr 1/26/11), 57 So.3d 553, 558 n. 6. The same rule does not apply to the party which prevailed in the lower court and does not seek modification, revision, or reversal of the lower court judgment. See La. C.C.P. art. 2133 B; see also Succession of Faget, 10-0188, p. 5 (La.11/30/10), 53 So.3d 414, 418.

      . See Keaty v. Raspanti, 00-0221, p. 7 (La. App. 4 Cir. 2/7/01), 781 So.2d 607, 611, where we refused to be bound by our earlier ruling "where palpable error or where manifest injustice would occur” and remanded the case for further evidentiary determinations.

      .The majority refers to our holding in Long v. Performance Motorwerks, Inc., 00-0861 (La. App. 4 Cir. 3/7/01), 782 So.2d 649, which did affirm an Article 561 dismissal with prejudice. But we did not examine the propriety of the relief (with or without prejudice) and decided the case on the substantive issue presented.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Brook R. ANGELETTE v. Cyd CALLAIS.
    No. 2010 CU 2279.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Denise A. Allemand, Larose, LA, for Plaintiff/Appellee Brook R. Angelette.
    Rachel C. Marinovich, New Orleans, LA, for Defendant/Appellant Cyd Calíais.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2In this case involving custody and child support issues, the mother appeals a trial court judgment denying her request to have the father ordered to pay his proportionate share of the child’s extracurricular activities and private school tuition and denying her request to either order the father to accommodate the child’s schedule of extracurricular activities or to modify the physical custody schedule to accommodate the child’s extracurricular activities. We affirm.

FACTS AND PROCEDURAL HISTORY

Brook Angelette and Cyd Calíais were never married but had one child together, Brooklyn Angelette, born August 2, 2004. A March 31, 2006 consent judgment provided that the parties would have joint custody of Brooklyn, with Mr. Angelette having physical custody of Brooklyn every other weekend from 5:00 p.m. on Friday until 5:00 p.m. on Sunday, two non-consecutive weeks during the summer, and on certain designated holidays, with physical custody to be exercised at Mr. Angelette’s parents’ house until he made suitable living arrangements. The consent judgment also ordered Mr. Angelette to maintain health insurance on Brooklyn, to pay child support in the amount of $550.00 per month, and to reimburse Ms. Calíais for seventy-six percent of all non-covered medical expenses, and allowed Mr. Ange-lette to claim Brooklyn on his income taxes every year.

On December 19, 2006, Ms. Calíais filed a rule to show cause seeking a recalculation of child support and a change in the allocation of the tax dependency status. The parties entered a consent judgment, signed by the court on June 1, 2007, which provided that Mr. Angelette would pay child support in the amount of $450.00 per month and would continue to be Irresponsible for forty-five percent of all non-covered medical expenses for Brooklyn.

On May 28, 2010, Ms. Calíais filed another rule to show cause, seeking to have the court order Mr. Angelette to participate in counseling sessions with Brooklyn and to pay his proportionate share of the non-covered expenses of that counseling; to have the court modify the physical custody schedule to accommodate Brooklyn’s extracurricular activities; to have the court require Mr. Angelette to make more appropriate sleeping arrangements for Brooklyn during his physical custody periods; and to have the court order Mr. Angelette to pay his proportionate share of Brooklyn’s private school tuition and extracurricular activities, or alternatively to increase child support to include these expenses.

After a hearing, the trial court rendered judgment ordering Mr. Angelette to reimburse Ms. Calíais $1,437.50, one-half of the sums previously paid for Brooklyn’s counseling, and increasing Mr. Angelette’s child support obligation to $524.00 per month. The court declined to modify the physical custody schedule set forth in the parties’ prior consent judgment and also declined to order Mr. Angelette to pay for private school tuition or any of the child’s extraordinary expenses. Ms. Calíais has appealed this judgment, asserting that the trial court erred in failing to render a joint custody implementation plan which allocates the rights and responsibilities of the parents, in failing to order Mr. Angelette to continue counseling or mediation, and in failing to order Mr. Angelette to pay his proportionate share of Brooklyn’s extraordinary expenses.

RDISCUSSION

In her first assignment of error, Ms. Calíais alleges that the court erred in failing to render a joint custody implementation plan to allocate the rights and responsibilities of the parties, as required by La. R.S. 9:335.

Louisiana Revised Statutes 9:335(A)(1) provides that in a proceeding in which joint custody is decreed, a joint custody implementation order shall be rendered, except for good cause shown. Louisiana Revised Statutes 9:335(A)(2) provides that the implementation order shall allocate the time periods during which each parent will have physical custody of the child so that the child is assured of frequent and continuing contact with both parents; that physical custody should be shared equally, to the extent that it is both feasible and in the best interest of the child; and that the order should allocate the legal authority and responsibility of the parents. Louisiana Revised Statutes 9:335 does not require that a specific form be used for the implementation plan. Caro v. Caro, 95-0173, p. 2 (La.App. 1 Cir. 10/6/95), 671 So.2d 516, 518.

The March 31, 2006 consent judgment awarded joint custody, ordered a physical custody and holiday custody schedule with set dates and venues included, and contained provisions for the parents’ rights and responsibilities relative to claiming Brooklyn for income tax purposes, maintaining health insurance on Brooklyn, and the payment of child support. Although no domiciliary parent was specified in the judgment, La.R.S. 9:335(C) provides that where a domiciliary parent is not designated in the joint custody decree, and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code. The March 31, 2006 judgment qualifies as the custody order and the | .^implementation plan. The fact that it was not entitled “implementation plan,” is of no consequence. See Caro, 95-0173 at p. 3, 671 So.2d at 518.

Ms. Calíais argues on appeal that the court should have rendered a joint custody implementation order that specifically set forth the responsibilities of the parents regarding Brooklyn’s extracurricular activities. There is no authority for this assertion in the law. Ms. Calíais asked the court to require Mr. Angelette to accommodate Brooklyn’s rigorous dance and cheerleading practice schedule during his physical custody periods, either by giving up time with the child to allow her to attend the lengthy practices and travel to competitions, or by rescheduling his physical custody periods. However, the testimony established that Mr. Angelette did not want to change his physical custody periods with Brooklyn to a weekday because she also has practices on weekday afternoons and because his work schedule during the week would not allow him to spend as much time with her as he could on a weekend. Additionally, Brooklyn has a half sister who is on the same every-other-weekend schedule with Mr. Ange-lette as Brooklyn, and Brooklyn would not be able to spend time with her half sister if her physical custody periods with Mr. An-gelette were changed to accommodate her extracurricular activities. We disagree with Ms. Callais’s assertion that the court was required to set forth the parties’ responsibilities regarding Brooklyn’s extracurricular activities in the joint custody implementation order, and find no error in the trial court’s refusal to order Mr. Ange-lette to accommodate Brooklyn’s extracurricular activities during his physical custody period. Ms. Calíais also argues that the trial court’s refusal to require Mr. Angelette to accommodate Brooklyn’s extracurricular activity schedule is a disregard of the decision-making authority bestowed upon her by La. R.S. 9:335(B)(S) as the domiciliary parent. However, as noted | f,above, no domiciliary parent was named in the custody order and joint custody implementation order. This assignment of error is without merit.

In her next assignment of error, Ms. Calíais alleges that the trial court erred in not ordering Mr. Angelette to participate in counseling for Brooklyn and in not ordering the parties to mediate their differences.

Louisiana Revised Statutes 9:332(A) provides that the court may order the parties to mediate their differences in a custody or visitation proceeding. There is no statutory requirement that a court order mediation in cases where the parties cannot reach an agreement on their own, and Ms. Calíais did not request that the trial court order mediation in this matter. Thus, it is clear that the trial court did not err in failing or order mediation.

Ms. Calíais next argues that the court erred in refusing to order Mr. Ange-lette to participate in counseling with Brooklyn and to pay for half of those future counseling sessions, where “it was clear that the parties’ participation in counseling ... had improved various issues.” Ms. Calíais cited no authority for her assertion that it was error for the court to fail to order counseling.

Ms. Calíais testified that she began bringing Brooklyn to counseling in August of 2009 because she had been throwing temper tantrums when it was time for her to go to Mr. Angelette’s house. Ms. Cal-íais did not consult Mr. Angelette about seeking counseling for Brooklyn, but Mr. Angelette did participate in counseling sessions when his participation was requested. Dawn Grazier Chadwick, a licensed professional counselor (LPC), testified at the hearing that she had had thirty one sessions with Brooklyn. Ms. Chadwick testified that she helped Brooklyn deal with family conflict and separation anxiety, and they had made much progress. When asked about |7the need to continue counseling, Ms. Chadwick stated that “she can continue if her parents feel that she needs to.”

Although the court ordered Mr. Ange-lette to pay for half of Brooklyn’s past counseling sessions, the court declined to order him to pay for any future sessions or to participate in any future sessions. The testimony established that Brooklyn’s issues had been mostly resolved in counseling and any remaining problems centered around the parents’ inability to communicate with each other and to resolve conflict. Based on this, we see no error in the court’s decision not to order future counseling sessions for Brooklyn.

Ms. Callais’s final assignment of error is that the court erred in denying her request to order Mr. Angelette to pay his proportionate share of the costs of Brooklyn’s private school tuition and extracurricular activities. In ruling on the request for contribution to the expense of dancing and cheerleading, the court noted that Ms. Calíais wanted the child involved in dancing and cheerleading, not Mr. Angelette, and the court would not order Mr. Ange-lette to pay for any of it. The court also declined to add private school tuition to Mr. Angelette’s child support obligation, noting that the parties did not put on any evidence regarding the need for Brooklyn to attend private school. The court did increase Mr. Angelette’s child support obligation to $524.00 per month after determining that he was currently paying $74.00 less per month under the consent judgment than the child support guidelines call for; however, the court specifically stated that while Ms. Calíais could choose to use this additional amount for extracurricular activities or private school tuition if she wished, the court was not ordering Mr. Angelette to pay private school tuition.

| ^Louisiana Revised Statutes 9:315.6 provides that the following expenses may be added to the basic child support obligation, either by agreement of the parties or by order of the court:

(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.
(2) Any expenses for transportation of the child from one party to the other.
(3) Special expenses incurred for child rearing intended to enhance the health, athletic, social, or cultural development of a child, including but not limited to camp, music or art lessons, travel, and school sponsored extracurricular activities.

The “needs of the child” referred to in subsection (1) to be met by the private school need not be particular educational needs, but may include such needs of the child as the need for stability or continuity in the child’s educational program. See La. R.S. 9:315.6, Comment — 2001. The abuse of discretion standard applies to the court’s decision whether to add private school tuition or other special expenses incurred for child rearing to the child support obligation. See Walden v. Walden, 00-2911, p. 12 (La.App. 1 Cir. 8/14/02), 835 So.2d 513, 523.

Ms. Calíais testified that the cost of Brooklyn’s dancing is between $2,300.00 and $2,500.00 per year, and her cheerlead-ing activities cost approximately $2,200.00 per year. Ms. Calíais made the decisions regarding Brooklyn’s participation in dancing and cheerleading, although it appears that Mr. Angelette was at least informed, if not consulted, regarding her participation. Mr. Angelette testified that Brooklyn sometimes cried and told him she did not want to go to dancing or cheerleading, and he believed that it was more important to Ms. Calíais than to Brooklyn that she participate. Although Mr. Angelette paid for part of Brooklyn’s dancing | glasses when she first started, his share at that time was only $25.00 per month. As for Brooklyn’s private school tuition, Mr. Angelette testified that Ms. Calíais did not consult him before enrolling Brooklyn in private school; she merely informed him of her decision and told him he would have to pay for half. Brooklyn’s private school tuition is $2,998.00 per year, and Mr. Angelette testified that he had contributed $300.00 towards her tuition, but that was all he could afford. As noted by the court, the parties put on no evidence regarding any needs of Brooklyn’s which were met by attendance at her private school.

Based on the evidence in the record, we cannot say that the court abused its discretion in declining to add the costs of Brooklyn’s private school tuition and extracurricular activities to Mr. Angelette’s child support obligation. This assignment of error lacks merit.

CONCLUSION

The judgment appealed from is affirmed. Costs of this appeal are to be borne by appellant, Cyd Calíais.

AFFIRMED.

WELCH, J., concurs without reasons.


author:
WHIPPLE, J.
      McDONALD, J.,

text:
    GIBSON & ASSOCIATES, INC. v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 2010 CA 1696.
    Court of Appeal of Louisiana, First Circuit.
    May 18, 2011.

      Russel W. Wray, Lani B. Durio, Baton Rouge, LA, for Plaintiffs/Appellees, Gibson & Associates, Inc. and for Amicus Curiae, Louisiana Associated General Contractors, Inc.
    Darhlene M. Major, Baton Rouge, LA, for Defendant/Appellant, Louisiana Department of Transportation & Development.
    Kevin P. Landreneau, Baton Rouge, LA, for Intervenor/Appellee, Lamplighter Construction, L.L.C.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

| aIn this appeal, the Louisiana Department of Transportation and Development (hereinafter referred to as “the DOTD”) challenges the trial court’s judgment that: (1) issued a preliminary injunction restraining and prohibiting the DOTD from awarding a particular construction contract to any bidder other than plaintiff, Gibson & Associates, Inc. (referred to herein as “Gibson”); and (2) issued a writ of mandamus directing the DOTD to award the contract for the projects at issue to Gibson as the low responsible bidder and to execute a contract with Gibson in accordance with the bid proposal and the contract plans and specifications as advertised.

The intervenor, Lamplighter Construction, L.L.C., (referred to herein as “Lamplighter”) answered the appeal, aligning itself with, and adopting the position taken by, the DOTD.

For the following reasons, we amend in part and affirm, as amended; reverse in part and remand; and deny Gibson’s motion to strike brief.

FACTS AND PROCEDURAL HISTORY

This matter involves the awarding of a DOTD construction contract on State Project Nos. [ XXX-XX-XXXX ] and [ XXX-XX-XXXX ], for bridge joint repairs and replacements on Interstates 10 and 110 in East Baton Rouge and Iberville Parishes. Because the project was a federal aid project, compliance with the required contract provisions for a IsDisadvantaged Business Enterprise (“DBE”) was mandatory. Thus, the Construction Proposal included the “Required Contract Provisions for DBE Participation in Federal Aid Construction Contracts (DBE Goal Project),” which provided that Form CS-6AAA (the “Bidder’s Assurance of DBE Participation” form) and attachments “shall” be timely submitted to the DOTD and that the apparent low bidder’s failure to submit the Form CS-6AAA “shall” constitute just cause for the rejection of the bid.

On January 27, 2010, the project was first let, and the apparent low bidder was TOPCOR Services, Inc. (“TOPCOR Services”), which was thereafter notified that its completed Form CS-6AAA must be submitted within ten days of the letting date. However, TOPCOR Services did not timely submit to the DOTD the required CS-6AAA, thus resulting in its disqualification. Moreover, because of its failure to comply with the requirements of the DBE regulations, TOPCOR Services was barred from rebidding on the project should the project be re-advertised.

Gibson was the next lowest bidder, but the DOTD did not accept its bid. Instead, the DOTD rejected all other bids and re-advertised the project |4in the spring of 2010, with a letting date of April 14, 2010. When the bids were opened on April 14, 2010, Lamplighter Construction, L.L.C. (“Lamplighter”) was the apparent low bidder. However, the DOTD project control administrator was then notified that Lamplighter should be disqualified from bidding because it and the previously disqualified TOPCOR Services were possibly affiliated entities or controlled or owned by the same individuals. The DOTD then researched any connections between the companies through the Louisiana Secretary of State website and the Louisiana Contractors Licensing Board filings.

Based on this independent research, the project control administrator determined that a principal officer or owner of Lamplighter was also a principal officer or owner of TOPCOR Services, the original apparent low bidder which was disqualified from bidding. Thus, the DOTD concluded that Lamplighter was also ineligible to bid and its bid would be rejected as irregular, in accordance with Louisiana Standard Specifications for Roads and Bridges, Specification § 102.08(g). Accordingly, Lamplighter was then listed as “irregular” on the bid tabulation, and Gibson, which had again been the second lowest bidder, became the apparent low bidder.

Lamplighter then protested the DOTD’s determination that its bid should be considered irregular, asserting that it was a “distinct and separate contracting entity” from TOPCOR Services. Following a review of documentation submitted by Lamplighter in support of its protest, the | sDOTD chief engineer determined that Lamplighter should be reinstated as the low bidder and awarded the contract.

After the DOTD made its decision to reinstate Lamplighter as the low bidder, it notified Gibson that its status had again changed to second low bidder. Gibson then filed a protest of the DOTD’s decision to reinstate Lamplighter as the low bidder. Following a hearing on Gibson’s protest, the DOTD chief engineer notified Gibson, by letter dated May 27, 2010, that he had reaffirmed his prior decision to reinstate Lamplighter as the apparent low bidder for the project at issue. The following day, the DOTD notified Lamplighter that it had been awarded the contract.

On the same day that Lamplighter was notified that it had been awarded the contract, May 28, 2010, Gibson filed a petition for a temporary restraining order, preliminary injunction, permanent injunction, declaratory judgment, and mandamus. Through its petition, Gibson sought to enjoin the DOTD from awarding and executing the construction contract to any bidder other than Gibson. It further sought a declaratory judgment, declaring: (1) that the bid submitted by Lamplighter is irregular pursuant to Standard Specification § 102.08(g); (2) that pursuant to LSA-R.S. 48:250, et seq., Lamplighter’s bid must be rejected; (3) that any contract entered into by the DOTD with Lamplighter is null and void; and (4) that Gibson is the low responsible bidder to bid according to the contract, plans, and specifications and, as such, is entitled to be awarded the project. Finally, Gibson sought a writ of mandamus ordering the DOTD to accept Gibson’s bid and execute the contract with Gibson for the construction of this project.

A TRO was issued that day, prohibiting the DOTD from awarding the contract to any bidder other than Gibson or, if the contract had been awarded, from implementing or executing the terms and conditions of any | fisuch contract, and a hearing on Gibson’s request for a preliminary injunction was set for June 15, 2010. The TRO was subsequently continued in full force and effect by order dated June 7, 2010.

In response to Gibson’s petition, the DOTD filed exceptions of nonjoinder of an indispensable party, i.e., Lamplighter, and improper use of summary proceedings, an answer, and a reconventional demand for dissolution of the TRO, damages for its wrongful issuance, and attorney’s fees.

At the June 15, 2010 hearing, the trial court considered and denied the exceptions filed by the DOTD. Lamplighter then orally intervened for purposes of opposing the injunctive relief requested. At the conclusion of the hearing, the trial court extended the TRO and took the matter of the preliminary injunction under advisement. The TRO was again extended on June 24, 2010.

Thereafter, on June 25, 2010, the trial court issued written reasons for judgment, finding that TOPCOR Services and Lamplighter have a principal officer and/or owner in common and, thus, that the plain language of Standard Specification § 102.08(g) mandated a finding that Lamplighter was ineligible to bid. Accordingly, the trial court rendered judgment: (1) issuing a preliminary injunction prohibiting the DOTD from awarding the construction contract to any bidder other than Gibson or, in the event the contract had been awarded, from performing or executing the terms thereof; |7and (2) issuing a writ of mandamus directing the DOTD to award the contract to Gibson as the low responsible bidder and to execute a contract with Gibson in accordance with the bid proposal and the contract plans and specifications.

From this judgment, the DOTD appeals, contending that the trial court erred: (1) In ordering the issuance of a preliminary injunction where no prima facie showing was made of either irreparable harm to Gibson or a direct violation of the Public Bid Law;

(2) in applying Standard Specification § 102.08(g) to the lowest bidder on the project, contrary to the clear language of the specification and contrary to the discretionary authority of the DOTD to interpret its specification and administer the bid process as mandated by LSA-R.S. 48:255;

(3) in finding that Lamplighter’s bid was irregular pursuant to Standard Specification § 102.08(g);

(4) in substituting its judgment for the DOTD’s good faith determination interpreting and applying its specifications within the context of the applicable Public Bid Law;

(5) in ordering the issuance of a writ of mandamus directing the DOTD to award the contract to and execute a contract with Gibson, the second lowest bidder, in contravention of LSA-R.S. 48:255(B)(5)(b); and

(6) in failing to find the TRO issued in the proceeding below was wrongfully issued, failing to dissolve same, and failing to award damages and attorney’s fees to the DOTD pursuant to LSA-C.C.P. art. 3608 for the wrongful issuance of the TRO.

| ^Lamplighter filed an answer to the appeal, adopting the assignments of error set forth by the DOTD. Additionally, Louisiana Associated General Contractors, Inc. has filed an amicus curiae brief in this matter, setting forth its position as to why the trial court’s judgment should be affirmed.

Also before this court is a motion filed by Gibson to strike Lamplighter’s appellate brief. We elect to address this motion first.

MOTION TO STRIKE LAMPLIGHTER’S APPELLATE BRIEF

In support of its motion to strike Lamplighter’s appellate brief, Gibson advances two arguments: (1) that Lamplighter did not properly file an answer to the DOTD’s appeal and, alternatively, (2) that through its answer to the appeal, Lamplighter improperly seeks to challenge the judgment rendered in favor of a party that is not an appellant, ie., Gibson. With regard to its assertion that Lamplighter did not properly file an answer to the DOTD’s appeal, Gibson contends that Lamplighter filed its answer in separate proceedings involving a writ application filed by the DOTD under docket number 2010-CW-1207, not in this appeal proceeding. Thus, Gibson contends, because Lamplighter did not answer the instant appeal, its appellate brief, which opposes the trial court’s judgment, should be stricken in accordance with Uniform Rules — Courts of Appeal, Rules 2-7.4 and 2-{12.13.9

However, we note that while the caption of Lamplighter’s answer incorrectly listed the docket number for the related writ application filed by the DOTD, that clerical error was corrected at the time of filing, and the answer to the appeal was, in fact, filed under the docket number of the DOTD’s appeal herein. Accordingly, we find no merit to this argument.

Gibson further asserts that an answer to an appeal does not have effect with respect to any portion of the judgment in favor of a party that has not appealed. Thus, it contends, because Lamplighter improperly requests reversal of the judgment rendered in favor of Gibson, a party herein which has not appealed the judgment in its favor, Lamplighter’s appellate brief should be stricken.

Louisiana Code of Civil Procedure article 2138 provides that “[t]he answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” (Emphasis added). The jurisprudence has held that pursuant to this provision, an answer does not have the effect of an appeal as to any portion of the judgment rendered either in favor of or against a party who has not appealed. Francois v. Ybarzabal, 483 So.2d 602, 605 (La.1986).

However, LSA-C.C.P. art. 2133 further provides as follows: “Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.” 110(emphasis added). Incidental actions include reconventional demands, cross-claims, interventions, and third-party demands. LSA-C.C.P. art. 1031. In the instant case, Lamplighter intervened in the proceedings below, seeking to protect its interest in the award of the construction contract at issue. Clearly, in rendering judgment granting a preliminary injunction and writ of mandamus, the trial court did not “allow ... the relief prayed for by [Lamplighter’s] incidental action,” ie., Lamplighter’s interest in having the court uphold the DOTD’s actions in reinstating Lamplighter as the lowest responsible bidder and awarding the contract to Lamplighter. Thus, Lamplighter’s interest in and right to seek such relief in an answer to the appeal is clearly allowed by LSA-C.C.P. art. 2133. See Notto v. Brown, 509 So.2d 788, 789 (La.App. 1st Cir.1987).

Accordingly, we deny Gibson’s motion to strike Lamplighter’s appellate brief.

DISCUSSION

Propriety of the Preliminary Injunction

(Assignments of Error Nos. 1-4)

In its petition filed below, Gibson contended that in the re-letting of this project, the bid of Lamplighter was irregular and, thus, should have been rejected by the DOTD, given Lamplighter’s connections with the previously disqualified bidder TOPCOR Services. The trial court agreed and granted a preliminary injunction, prohibiting the DOTD from awarding the contract at issue to Lamplighter (or any bidder other than Gibson).

In its first four assignments of error, the DOTD challenges the trial court’s granting of a preliminary injunction and its findings underlying the Ingrant of the injunction. Specifically, in its first assignment of error, the DOTD contends that Gibson failed to make a prima facie showing of irreparable harm absent injunctive relief or of a direct violation of the Public Bid Law. Thus, the DOTD contends that the preliminary injunction was inappropriate. In its second and third assignments of error, the DOTD contends that the trial court erred in its interpretation of Specification 102.08(g) as being applicable to Lamplighter and, thus, in concluding that Lamplighter’s bid was irregular and should have been rejected by the DOTD. Additionally, in assignments of error two and four, the DOTD contends that because it interpreted and applied the specifications at issue herein in good faith, the trial court erred in failing to recognize the discretionary authority of the DOTD in interpreting its specifications and in substituting its own judgment for that of the DOTD.

Louisiana’s Public Bid Law, as set forth in LSA-R.S. 38:2211, et seq., is a prohibitory law founded on public policy. Hamp’s Construction, L.L.C. v. City of New Orleans, 2005-0489 (La.2/22/06), 924 So.2d 104, 107. The Public Bid Law was enacted in the interest of the taxpaying citizens, and its purpose is to protect citizens against contracts of public officials entered into because of favoritism and involving exorbitant and extortionate prices. Hamp’s Construction, L.L.C., 924 So.2d at 107. A 1 ^political entity has no authority to take any action which is inconsistent with the Public Bid Law. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211 (La.3/18/04), 867 So.2d 651, 656. In that regard, LSA-R.S. 38:2212(A)(l)(b)(i) provides that “[t]he provisions and requirement[s] of this Section, those stated in the advertisement for bids, and those required on the bid form shall not be waived by any entity.”

Moreover, “in addition to the laws of the state relating generally to obligations and the department not in conflict with this Part,” LSA-R.S. 48:250, et seq., specifically governs the bidding and award process for public construction projects let by the DOTD. Angelo Iafrate Construction, L.L.C. v. State, Department of Transportation and Development, 2001-2761 (La.App. 1st Cir.5/10/02), 818 So.2d 973, 976, writ denied, 2002-2142 (La.11/8/02), 828 So.2d 1125.

As to bidding requirements for public construction contracts and conformity therewith, LSA-R.S. 48:255(A) provides as follows:

The department shall establish specific bidding requirements, in accordance with the provisions of this Part, provisions of the Federal Highway Administration, if applicable, and other provisions as necessary and will include these requirements in the project specifications and bid package issued to prospective bidders. Bids of prospective bidders shall conform to these requirements. Bids not submitted in accordance with this Subpart or such other specified requirements are irregular and must be rejected by the department.

Accordingly, based on the plain language of LSA-R.S. 48:255, the bids of prospective bidders shall conform to the requirements of the bid proposal and project specifications. Otherwise, a bid not conforming to those requirements is irregular and “must” be rejected by the DOTD. Angelo Iafrate Construction, L.L.C, 818 So.2d at 977.

113Where the threatened action of a public body is in direct violation of a prohibitory law, the plaintiff may seek injunc-tive relief to enjoin that threatened action without a showing of irreparable injury. Louisiana Associated General Contractors, Inc. v. Calcasieu Parish School Board, 586 So.2d 1354, 1359 (La.1991); see also M.P.G. Construction, Inc. v. Department of Transportation and Development, 2003-0164 (La.App. 1st Cir.4/2/04), 878 So.2d 624, 629, writ denied, 2004-0975 (La.6/4/04), 876 So.2d 85, and Chandler v. State, Department of Transportation and Development, 2002-1410 (La.App. 1st Cir.3/28/03), 844 So.2d 905, 909. At the hearing on the preliminary injunction below, Gibson did not offer any evidence that it would suffer irreparable injury if the trial court did not grant the preliminary injunction. Thus, to prove its entitlement to a preliminary injunction, Gibson had the burden of establishing that the DOTD’s actions in reinstating Lamplighter as the low bidder was a direct violation of a prohibitory law, i.e., the Public Bid Law.

As set forth above, because the project at issue was a federal aid construction project, the DBE participation provisions, as established in 49 C.F.R., Part 26, were mandatory. Accordingly, the DBE provisions were incorporated into the construction proposal. These provisions set forth that the bidder “shall” submit the Form CS-6AAA by the due date set forth in the apparent bid results and the bid results posted on the DOTD’s website. Additionally, section G(6) of the DBE provisions in the construction proposal states as follows:

An apparent low bidder’s failure, neglect, or refusal to submit Form CS-6AAA and attachments committing to meet or exceed the DBE goal and/or documentation of good faith efforts, shall constitute just cause for forfeiture of the proposal guarantee and the DOTD rejecting the bid, pursuing award to the next lowest bidder, or re-advertising the project. |HThe apparent low bidder will not be allowed to bid on the project should readvertisement occur. (Emphasis added).

Based on this provision, TOPCOR Services was disqualified and barred from rebidding on the project when it did not timely submit to the DOTD the required Form CS-6AAA.

Moreover, with regard to the re-letting of this project, the construction proposal specifically provides that “[bjids must be prepared and submitted in accordance with Section 102 of the 2006 Louisiana Standard Specifications for Roads and, Bridges (“the Standard Specifications”) as amended by the project specifications, and must include all information required by the proposal.” Standard Specification 102.08(g) provides that “[b]ids may be considered irregular and non-responsive and will be subject to rejection ... [i]f an owner or a principal officer(s) of the bidding entity is an owner or a principal officer(s) of a contracting entity which has been declared by the [DOTD] to be ineligible to bid.”

The evidence and testimony presented at the hearing on Gibson’s request for a preliminary injunction established that the sole shareholder (owner) of TOPCOR Services is TOPCOR Companies, L.L.C., which entity also owns 29% of Lamplighter. Moreover, the president and secretary of TOPCOR Services is James Baker, who is also the secretary/treasurer of Lamplighter. Clearly, TOPCOR Services and Lamplighter not only shared a common owner (TOPCOR Companies, L.L.C.), but also shared a common 11Bprincipal officer (James Baker). Thus, the legal question presented in this matter is whether TOPCOR Services’s ineligibility to rebid on the project at issue, given its disqualification in the original bid letting and the prohibition against its bidding on any re-letting, is imputed to Lamplighter and renders it ineligible pursuant to Standard Specification 102.08(g), given that the two companies share a common owner and a common principal officer.

While the DOTD acknowledged below that it had initially ruled Lamplighter’s bid to be ineligible pursuant to Standard Specification 102.08(g) based on the common ownership interests and principal officer between Lamplighter and the previously disqualified TOPCOR Services, on appeal, the DOTD now argues that Standard Specification 102.08(g) does not operate to disqualify Lamplighter, thus rendering the DOTD’s initial determination incorrect. Specifically, the DOTD contends that the proper interpretation of the term “contracting entity” in Standard Specification 102.08(g) (bids may be considered irregular and will be subject to rejection where an owner or principal officer of the bidding entity is an owner or principal officer of a “contracting entity” which has been declared ineligible to bid) renders that specification inapplicable to Lamplighter herein.

While acknowledging that the term “contracting entity” is not defined in the Standard Specifications, the DOTD asserts that the purpose of Standard Specification 102.08(g) is to prevent contractors which have been previously disqualified under Specification 108.04 from bidding on future contracts. Thus, it contends that this court should look to the definition of “contract” contained in the Standard Specifications, which is defined as | i/the written agreement between the [DOTD] and the contractor” and should consequently conclude that a “contracting entity” as stated in Standard Specification 102.08(g) must be understood to refer only to an entity that already has had a written agreement (or contract) with the DOTD and has been disqualified from bidding pursuant to that previous contract, rather than referring to all bidding entities seeking a contract with the DOTD.

Accordingly, urging this proposed interpretation of the Standard Specifications, the DOTD contends that TOPCOR Services was not a disqualified contractor (presumably on the basis of not having been disqualified under a prior contract with the DOTD as a result of the progress on its work under such previous contract falling behind the elapsed contract time) and, thus, was not a “contracting entity” which had been declared by the DOTD to be ineligible to bid under the provisions of Standard Specification 102.08(g). Consequently, the DOTD, in essence, contends that the fact that Lamplighter shares a common owner and principal officer with TOPCOR Services is of no consequence, given that TOPCOR Services is not a “contracting entity” within its interpretation of Standard Specification 102.08(g).

On review, we find no merit to the DOTD’s strained and convoluted interpretation of Standard Specification 102.08(g). At the outset, we note |17that the term “contracting entity” connotes present tense; yet, the DOTD seeks to have this court interpret that phrase as applying only to entities that had contracted with the DOTD in the past. Moreover, at the time TOPCOR Services was disqualified after the initial letting and deemed ineligible to bid at the re-letting of this project, it had already been awarded the contract at issue by the DOTD. Thus, as of the time of the award, TOPCOR Services was clearly considered, for all intents and purposes, to be the “contracting entity” with regard to this project. Accordingly, we cannot accept the strained analysis asserted by the DOTD and urged to support a conclusion that TOPCOR Services was not a “contracting entity” herein determined to be ineligible to bid at the re-letting.

Moreover, we find no merit to the DOTD’s attempt to limit Standard Specification 102.08(g) to entities previously “disqualified” from bidding on future projects under Standard Specification 108.04, (despite the absence of any language to this effect in Standard Specification 102.08(g) limiting its application to entities “disqualified” in such a manner). Rather, the language of 102.08(g) specifically applies to entities “declared ... ineligible.” (Emphasis added). Indeed, there are numerous reasons for which an entity will be disqualified, and, thus, ineligible to bid, including, inter alia: (1) application of Standard Specification 103.07 for failure to comply with the provisions of Standard Specification 103.06, regarding execution and approval of the contract; (2) application of Standard Specifications 108.04 for delay in progression of the work on a construction project with the DOTD; (3) application of section G(6) of the DBE provisions (applicable to the instant contract) for failure to timely submit | ]8required documentation; and (4) application of LSA-R.S. 48:295.1 and 48:295.2 addressing debarment. Thus, we likewise find no merit to the DOTD’s attempt to substitute the more restrictive phrase, “disqualified under Specification 108.04,” for the term “ineligible” (the term actually contained in the language of Standard Specification 102.08(g)) to support its strained interpretation of this specification.

Finally, we note that the interpretation set forth by the DOTD does not further the policy purposes behind the Public Bid Law. As stated above, the purpose of the Public Bid Law is to protect Louisiana’s taxpaying citizens against contracts of public officials entered into because of favoritism or involving extortionate prices. Hamp’s Construction, L.L.C., 924 So.2d at 107. Under the interpretation of “contracting entity” proposed by the DOTD, owners or principal officers of an entity ineligible to bid could simply create a new corporation or limited liability company owned and/or controlled by the same owners or principal officers of the ineligible entity, and that new entity would be eligible to bid when the project was rebid simply because it, being a “new” entity, had never before contracted with the DOTD and, thus, in the DOTD’s view, was not a “contracting entity.”

Accordingly, we conclude that TOPCOR Services was a “contracting entity” declared ineligible to bid at the re-letting of the project at issue. Thus, pursuant to Standard Specification 102.08(g), the bid of Lamplighter, which had a common owner and principal officer -with TOPCOR Services, was “subject to rejection.” Moreover, because the Standard Specifications were made a part of the construction proposal herein, the DOTD had no discretion or authority to waive any of the requirements therein as they applied to Lamplighter. LSA-R.S. 38:2212(A)(l)(b)(i); see also LSA-R.S. 48:255(A). For these reasons, we are constrained to conclude that the 119DOTD directly violated the Public Bid Law when it reinstated the bid of Lamplighter. Accordingly, we find no error in the portion of the trial court’s judgment enjoining the DOTD from awarding the contract at issue to Lamplighter.

However, to the extent that the trial court went beyond simply prohibiting the DOTD from awarding the contract to Lamplighter and instead ordered that the DOTD was prohibited from awarding the contract to any entity other than Gibson, the trial court erred. For the reasons more fully discussed in the following section regarding the propriety of the writ of mandamus, we conclude that the DOTD had discretion in deciding whether to award the bid to Gibson after the disqualification of Lamplighter, given that Gibson’s bid was higher than the established threshold of the preconstruction estimate for the project. See LSA-R.S. 48:255(B)(5)(b).

Thus, we amend the July 12, 2010 judgment to provide that the preliminary injunction previously granted prohibits the DOTD from awarding the contract at issue to Lamplighter.

Propriety of the Writ of Mandamus

(Assignment of Error No. 5)

In this assignment of error, the DOTD contends that the trial court erred in issuing a writ of mandamus and ordering it to award the contract at issue to Gibson, where the decision to award the contract or to reject all remaining bids, which were outside of the established range above or below the internal precon-struction estimate for the project, was a discretionary decision, rather than a ministerial act.

Pursuant to LSA-C.C.P. art. 3862, a writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. |2nNonetheless, a writ of mandamus may only issue to compel the performance of a ministerial duty required by law. Copsey v. Joint Legislative Budget Control Council, 607 So.2d 841, 843 (La.App. 1st Cir.1992). A ministerial duty is one in which nothing is left to discretion. If a public official is vested with any element of discretion, mandamus will not lie. Hoag v. State, 2004-0857 (La.12/1/04), 889 So.2d 1019, 1023-1024.

The evidence presented at the hearing below establishes that while an “estimated cost range” is published to prospective bidders in the construction proposal, that estimated range is for “information purposes” only. The DOTD also prepares a precon-struction estimate, which is a figure not published prior to the letting of a project and which is a figure used internally by the DOTD to determine whether a bid should be rejected. Specifically, in deciding whether to reject a bid, the DOTD has established a range of plus 10% to minus 25% of the internal preconstruction estimate, as the threshold amounts constituting just cause to reject the bid. Thus, when a bid is above the established threshold of the preconstruction estimate, it is subject to being rejected by the DOTD chief engineer. LSA-R.S. 48:255(B)(5)(b). According, to the testimony of the chief engineer, even though a bid is above the established range of the preconstruction estimate, he may nonetheless accept the bid if there are revenues available to fund the project. Further, the DOTD chief engineer has sole responsibility in deciding whether to accept or reject a bid that is outside the established range of the pre-construction estimate.

|MIn the instant case, all bids except Lamplighter’s were above the established threshold of the preconstruction estimate for the project. Thus, we are constrained to agree with the DOTD that its chief engineer had the authority to reject all bids. See LSA-R.S. 48:255(B)(5)(b).

Accordingly, we cannot conclude that the awarding of the contract at issue to Gibson was simply a ministerial duty. Thus, the issuance of a writ of mandamus was not legally warranted, and it must be reversed.

Damages and Attorney’s Fees for Allegedly Wrongfully Issued TRO

(Assignment of Error No. 6)

In its final assignment of error, the DOTD contends that the trial court erred in failing to grant its motion to dissolve the TRO, that the preliminary injunction should be dissolved, and that it is entitled to damages pursuant to LSA-C.C.P. art. 3608 for wrongful issuance of the TRO and the preliminary injunction. The trial court’s judgment was silent as to the DOTD’s request for damages and attorney’s fees, and this silence is deemed to be a rejection of its demand. Robertson v. Sun Life Financial, 2009-2275 (La.App. 1st Cir.6/11/10), 40 So.3d 507, 510.

Pursuant to LSA-C.C.P. art. 3608, a trial court may award damages for the wrongful issuance of a TRO or preliminary injunction. Thus, the trial court’s decision to award damages or not to award damages for a wrongfully | ^.issued TRO or preliminary injunction is discretionary, M.P.G. Construction, Inc. 878 So.2d at 629, and that decision will not be reversed on appeal absent an abuse of the trial court’s discretion. LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc., 2006-0489 (La.App. 4th Cir.4/16/08), 983 So.2d 217, 228-229.

Having found no error in the trial court’s determination that a preliminary injunction was warranted, we find no abuse of the trial court’s discretion in refusing to award damages or attorney’s fees for the alleged wrongful issuance of the TRO or the preliminary injunction. This assignment of error lacks merit.

CONCLUSION

For the above and foregoing reasons, the portion of the July 12, 2010 judgment granting a preliminary injunction is amended to provide that a preliminary injunction is issued, prohibiting the DOTD from awarding State Project Nos. [ XXX-XX-XXXX ] and [ XXX-XX-XXXX ] to Lamplighter Construction, L.L.C. As amended, the portion of the judgment granting a preliminary injunction is affirmed. However, the portion of the judgment issuing a writ of mandamus ordering the DOTD to award the subject contract to Gibson & Associates, Inc. is hereby reversed and the matter is remanded for further proceedings. In all other respects, the judgment is affirmed. Costs of this appeal in the amount of $2,909.96 are assessed against the DOTD.

The motion to strike Lamplighter’s brief is hereby denied.

AMENDED IN PART AND AFFIRMED, AS AMENDED; REVERSED IN PART AND REMANDED; MOTION TO STRIKE LAMPLIGHTER’S BRIEF DENIED.

McDONALD, J., agrees and assigns additional reasons.

McDONALD, J.,

agreeing.

| TWhile I agree with the majority in the decision rendered, I take this opportunity to address an issue I find somewhat troubling and perplexing. As noted by the majority in footnote 14 and 15, the request for bids had a published estimated cost range for the project of $1,000,000.00 to $2,500,000.00. However, the non-published internal DOTD preconstruction estimate was $976,986.45. Gibson’s bid was well within the published estimated cost range, however it was above the internal DOTD estimate. No one in authority at DOTD, including the chief engineer, could explain this paradox. It is difficult to understand what seems, at best, to be a contradiction. Why would the non-published internal cost estimate be outside the parameters of the published estimated cost range? If the chief engineer is “a little confused” about the process, it is small wonder that we would also not understand it. It is difficult to understand why Gibson’s bid should not have been accepted since it was within the published estimated cost range. As the majority has stated, we are constrained to agree with DOTD that LSA-R.S. 48:255(B)(5)(b) gives the chief engineer the authority to reject all bids that are above the confidential pre-construction internal cost estimate; even if he did not know of any just cause not to award the contract to Gibson. Even though it is statutorily authorized, I find it perplexing and enigmatic.

      . We note that the judgment on appeal herein incorrectly lists the State Project Number as [ XXX-XX-XXXX ] instead of [ XXX-XX-XXXX ]

      . A disadvantaged business enterprise, or DBE, is defined in the Code of Federal Regulations as a for-profit small business concern that is at least 51% owned by one or more individuals who are both socially and economically disadvantaged (or, in the case of a corporation, in which 51% of the stock is owned by one or more such individuals) and whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. 49 C.F.R. § 26.5. "Socially and economically disadvantaged individual[s]” include, but are not limited to, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, and women. 49 C.F.R. § 26.5. Some of the stated objectives of the DBE provisions include: (1) ensuring nondiscrimination in the award and administration of U.S. Department of Transportation ("DOT”)-assisted contracts in the DOT’S highway, transit, and airport financial assistance programs; (2) creating a level playing field on which DBEs can compete fairly for DOT-assisted contracts; and (3) removing barriers to the participation of DBEs in DOT-assisted contracts. 49 C.F.R. § 26.1(a), (b) & (e).

      . Pursuant to Standard Specification § 102.08(g), a bid may be considered "irregular” if an owner or principal officer of the bidding entity is an owner or principal officer of a contracting entity which has been declared to be ineligible to bid by the DOTD.

      . No protest hearing was held, and, contrary to the protest procedure set forth in the DBE provisions made a part of the Construction Proposal herein, Gibson & Associates was not notified that Lamplighter had filed a protest.

      . In an application for supervisory writs filed with this court, the DOTD challenged in part the trial court’s denial of its exception of nonjoinder of a party. This court granted the DOTD’s writ application in that respect, ordering that "[t]he July 12, 2010 judgment, insofar as it overrules the [DOTD’s] peremptory exception of nonjoinder of a party, which seeks to add Lamplighter Construction, LLC as a party to the suit, is reversed and the peremptory exception of nonjoinder of a party is sustained adding Lamplighter Construction, LLC as a party to the suit.” Gibson & Associates. Inc. v. State of Louisiana, Department of Transportation and Development, 2010 CW 1207 (La.App. 1st Cir.9/27/10).

      . Incorporated in its answer is a request by Lamplighter that it be designated as an appellant because it is aligned with the DOTD in this appeal. However, there are different and distinct time delays and other requirements for the filing of an appeal and an answer to an appeal. LSA — C.C.P. arts. 2087 & 2133(A); Local Rules-Court of Appeal, First Circuit, Rules 1-1 & 1-5. Moreover, an answer to an appeal is not equivalent to, and is more limited in scope than, an appeal. See LSA-C.C.P. arts. 2082 & 2133. Accordingly, because Lamplighter chose to answer the DOTD’s appeal, rather than file its own appeal, it is not an appellant herein. See Foster v. Unopened Succession of Smith, 38,386 (La. App. 2nd Cir.5/20/04), 874 So.2d 400, 404, writ denied, 2004-1547 (La. 11/8/04), 885 So.2d 1137.

      . Uniform Rules — Courts of Appeal, Rule 2-7.4 provides that the court may summarily dismiss motions and pleadings that are untimely or improperly filed. Rule 2-12.13 states that "[b]riefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party or counsel of record may be ordered to file a new or amended brief.”

      . Moreover, as stated above in footnote 4, by order dated September 27, 2010, this court maintained the DOTD’s peremptory exception of nonjoinder of a party and ordered Lamplighter added as a party to the suit.

      . The Public Bid Law applies to public entities of the state of Louisiana. LSA-R.S. 38:2212. "Public entity” is defined in the Public Bid Law to include "any agency, board, commission, department, or public corporation of the state.” LSA-R.S. 38:2211(A)(11). Thus, while LSA-R.S. 48:250, et seq., specifically governs the bidding and award process for public construction projects let by the DOTD, the provisions of the Public Bid Law, LSA-R.S. 38:2211 et seq, also apply to the DOTD to the extent that they do not conflict with LSA-R.S. 48:250, et seq. See LSA-R.S. 48:250; see also M.P.G. Construction, Inc. v. Department of Transportation and Development, 2003-0164 (La.App. 1st Cir.4/2/04), 878 So.2d 624, writ denied, 2004-0975 (La.6/4/04), 876 So.2d 85, and Diamond B Construction Company, Inc. v. Louisiana Department of Transportation and Development, 2000-1583 (La.App. 1st Cir. 12/22/00), 780 So.2d 439, writ denied, 2001-0246 (La.4/20/01), 790 So.2d 633 (applying provisions of the Public Bid Law to contracts let by the DOTD).

      . TOPCOR Companies, L.L.C., is, in turn, owned by James Baker, its sole member.

      . Additionally, we note that the qualifying party through the Louisiana Contractor's Licensing Board for both companies is James Baker. Indeed, with Baker as its qualifying party, Lamplighter first obtained its commercial contractor's license in Louisiana on March 25, 2010, after its affiliated entity TOP-COR Services had been disqualified from bidding on the project at issue. Moreover, based on their registration with the Secretary of State, both companies have the same address listed on Industriplex Boulevard in Baton Rouge, and James Baker is also the registered agent for both companies.

      .Interestingly, in the trial court below, the DOTD argued that the term "contracting entity” in Standard Specification Í 02.08(g) really meant "contractor,” as defined in the Standard Specifications, which it interpreted to mean an entity that had been previously awarded a contract with the DOTD. Thus, it further argued that a bidder would not yet be a "contractor,” and that Standard Specification 102.08(g) only applied where there was a contractor that had been disqualified from bidding on any job due to its performance under such previous contract.
      However, in its appellate brief, the DOTD acknowledges that the term "contractor” is defined at one point within the Title 48 provisions applying to the DOTD, specifically in LSA-R.S. 48:295.1 addressing "debarment,” to include "bidders or contractors on projects let pursuant to R.S. 48:251 et seq.” (Emphasis added). Thus, the DOTD concedes that the term "contracting entity" in Standard Specification 102.08(g) would apply to "debarred” entities, even though those entities had never previously contracted with the DOTD.

      . Standard Specification 108.04 addresses the prosecution of the work within the contract time and provides for a work-progress disqualification, i.e., disqualification of a contractor whose progress on the work falls behind the elapsed contract time.

      . While advancing this argument, the DOTD then concedes, as noted in footnote 11 supra, that Standard Specification 102.08(g) would also have to apply to debarred entities, even if such entities had never previously been awarded a contract by the DOTD.

      . We deem it noteworthy that the estimated cost range for the project at issue that was published to prospective bidders was $1,000,000.00 to $2,500,000.00, but the internal preconstruction estimate was $976,986.45, a figure below the published estimated cost range. Thus, while Gibson's bid was within the published estimated cost range, it was over the threshold of the precon-struction estimate, and, thus, subject to rejection pursuant to LSA-R.S. 48:255(B)(5)(b). However, when questioned about the fact that the DOTD’s preconstruction estimate was outside of the published estimated cost range, (i.e., less than the amount expressed to prospective bidders), the DOTD chief engineer could provide little guidance regarding the process, testifying that he was "a little confused” about that and that it was something he wanted to "look into” in the future.

      . We note that the DOTD chief engineer testified that he did not know of any just cause not to award the contract to Gibson in the event that Lamplighter's bid was determined to be irregular and had to be disqualified. Nonetheless, the evidence of record established that the decision whether to reject all other bids or to accept Gibson’s bid was a decision that he alone was authorized to make.

      . While an order relating to a TRO is not appealable pursuant to LSA-C.C.P. art. 3612, the denial of a request for damages and attorney’s fees for wrongful issuance of a TRO, if contained in an otherwise appealable judgment, may be reviewed by the appellate court. See Davis v. Raymond Petroleum, Inc., 396 So.2d 600, 601-602 (La.App. 3rd Cir.1981).