Terry Dalke VS Robert Armantono, Total Energy Corporation, Peter Lorris and Lorris Environmental, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2009 CA 1954 TERRY DALKE VERSUS ROBERT ARMANTONO AND TOTAL ENERGY CORPORATION PLUS PETER LORRIS AND LORRIS ENVIRONMENTAL INC Judgment Rendered May 7 2010 Appealed from Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 572 296 Honorable Curtis A Calloway and Honorable Wilson E Fields Judges George Kutzgar New Orleans LA Counsel for John E Heinrich Counsel for Jay M Jalenak Jr Baton Rouge LA DefendantsAppellees PlaintiffAppellant Terry Dalke Robert Armentano and Total Energy Corporation BEFORE CARTER C GUIDRY AND PETTIGREW JJ J GUIDRY J A subcontractor appeals judgments of the trial court dissolving a temporary restraining order TRO dismissing his suit based on objections of lack of personal jurisdiction and insufficient service raised pursuant to declinatory exceptions and denying his motion for new trial Finding error in the trial court dismissal of the s plaintiffs suit in its entirety we reverse in part and remand this matter for further proceedings FACTS AND PROCEDURAL HISTORY The plaintiff in this matter Terry Dalke filed a Petition for Permanent Injunction TRO Hearing and Payment on November 3 2008 naming as defendants Total Energy Corporation TEC Robert Armantono as the owner alter ego and sole controller of TEC Lorris Environmental Inc LEI and Peter Lorris as the owner alter ego and sole controller of LEI In the petition Mr Dalke alleged that TEC had purchased two metal propane tanks from Air Products and Chemicals Inc which were buried on that company property s Mr Dalke stated that TEC hired LEI to remove the tanks from the property of Air Products and Chemicals Inc and LEI in turn orally contracted with him to perform excavation work to facilitate the removal of the tanks The subcontracting work was performed from July 7 to July 10 2008 Following the completion of the subcontracting work Mr Dalke submitted several requests for payments but the defendants allegedly refused to pay the sum demanded Mr Dalke then filed the aforementioned suit The trial court immediately ordered that a TRO be issued upon Mr Dalke furnishing a bond in the amount of 25 The TRO was to be issued to restrain the defendants from 00 000 selling lending concealing parting with or otherwise disposing of a third 80 000 gallon propane tank that allegedly was owned by TEC and housed in Louisiana on the property of Formosa Plastics Company In the same order the trial court set a 2 hearing for November 17 2008 to determine whether issuance of a preliminary injunction would be warranted by law Due to difficulty Mr Dalke experienced in trying to obtain the 25 bond required by the trial court Mr Dalke 00 000 requested and was granted a continuance of the November 17 2008 hearing The matter was rescheduled for December 1 2008 On November 21 2008 Mr Armentano and TEC filed several exceptions in response to Mr Dalke petition wherein they raised objections of insufficient s service lack of personal jurisdiction over Mr Armentano improper venue and improper cumulation The trial court scheduled Mr Armentano and TEC s exceptions to be heard in conjunction with the December 1 2008 injunction hearing Following the hearing the trial court rendered judgment dissolving the TRO because Mr Dalke had not posted the required bond The trial court also sustained the declinatory exceptions filed by Mr Armentano and TEC as to the objections of insufficient service of process and lack of personal jurisdiction over Mr Armentano The trial court pretermitted consideration of the remaining exceptions filed by Mr Armentano and TEC and dismissed the entire proceeding without prejudice A written judgment incorporating the foregoing decrees was signed by the trial court on December 9 2008 Mr Dalke immediately applied for a new trial following the trial court s judgment and requested that the new trial motion be served on counsel that represented Mr Armentano and TEC on the exceptions and in opposition to the injunction proceedings Mr Dalke later requested service of the original petition on the same counsel In response counsel for Mr Armentano and TEC again filed declinatory and dilatory exceptions raising the objections of insufficient service lack of personal jurisdiction improper venue and improper cumulation In that pleading Mr Armentano also noted the incorrect spelling of his name in the pleadings filed by Mr Dalke 3 While the hearing was pending on the request for new trial and exceptions Mr Dalke sought to propound discovery upon TEC to which it responded by filing a motion for sanctions contempt and a protective order The trial court set s TEC motion to be heard with the hearing on the request for new trial and exceptions Thereafter Mr Dalke filed a motion to compel TEC response to s discovery and he also requested that the trial court grant a continuance of the pending hearing A hearing on all the pending pleadings was eventually held on August 24 2009 following which the trial court denied Mr Dalke motion for new trial and s the motions of Mr Armentano and TEC for sanctions and costs by a judgment signed September 2 2009 The trial court pretermitted consideration of the remaining exceptions as being moot in light of the foregoing rulings Mr Dalke appealed the September 2 2009 judgment denying his request for new trial and upholding the court December 9 2008 judgment Mr Armentano and TEC s answered the appeal seeking reversal of that portion of the trial court ruling s denying their request for sanctions and costs and further seeking an award of attorney fees for the work counsel performed in responding to this appeal DISCUSSION Mr Dalke contests the trial court dismissal of his entire suit based on the s declinatory exceptions filed by Mr Armentano and TEC Although we find merit in part with this contention we nevertheless find no error in the trial court s dismissal of the TRO and preliminary injunction requested by Mr Dalke Relative to the TRO issued in this case two documents were signed by the trial court on November 3 2008 the actual TRO and an order authorizing 2 In his notice of appeal Mr Dalke requested to be granted an appeal of the judgment denying his motion for new trial but as it is clear he intended to appeal the underlying judgment we will consider his request for an appeal as an appeal of that judgment See Carpenter v Hannan 01 0467 p 4 La App 1st Cir 3 818 So 2d 226 228229 writ denied 02 1707 La 02 28 02 25 10 827 So 2d 1153 4 issuance of the TRO In the November 3 2008 order a portion of the order authorized the issuance of a TRO on two grounds labeled A and B Option A provided for the issuance of the TRO without bond and Option B provided for the issuance of the TRO u petitioner furnishing bond in the amount of pon 00 000 25 The specific amount of 25 was handwritten in the blank 00 000 space provided for Option B and initials were recorded next to the options indicating that option B was selected by the trial court for issuance of the TRO Thus a plain reading of the order reveals that the TRO was to be issued on Mr Dalke furnishing the requisite bond Requests for a TRO preliminary injunction and permanent injunction are governed by La C P arts 3601 3613 Article 3610 requires the furnishing of security for the issuance of a TRO and preliminary injunction except where security is dispensed with by law The purpose of the security is to indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained La C art 3610 P Article 3606 further provides When a temporary restraining order is granted the application for a preliminary injunction shall be assigned for hearing at the earliest possible time subject to Article 3602 and shall take precedence over all matters except older matters of the same character The party who obtains a temporary restraining order shall proceed with the application for a preliminary injunction when it comes on for hearing Upon his failure to do so the court shall dissolve the temporary restraining order Moreover Article 3604 expressly provides that a TRO shall expire within ten days of issuance unless an extension is granted by the trial court with each extension not to exceed ten days each Thus by operation of law the TRO would have expired well in advance of the December 1 2008 hearing date 3 We further note a TRO must comply with the provisions of La C art 3604 to be P A validly issued See Dauphine v Carencro High School 02 2005 La 4 843 So 2d 1096 03 21 1103 1104 5 In the November 3 2008 order the trial court assigned Mr Dalke request s for issuance of a preliminary injunction for hearing on November 17 2008 Included in the order which was submitted by Mr Dalke along with the petition was the following notation Civil Sheriff These are out of state defendants They will be served via long arm statute Mr Dalke later requested a continuance of the November 17 2008 hearing date due to difficulty in obtaining the 00 000 25 bond required for issuance of the TRO In the ex parte motion for a continuance Mr Dalke acknowledged that defendants have not yet been served The trial court granted the request and continued the hearing until December 1 2008 Article 3602 provides that a preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing An application for a preliminary injunction shall be assigned for hearing not less than two nor more than ten days after service of the notice Since the trial court notified Mr Armentano and TEC of the date and time the injunctive proceedings were set for hearing upon receiving the hearing notices Mr Armentano and TEC objected to the proceedings on the basis in part that they had not been formally served with any notice of the commencement of the proceedings against them As the second sentence of Article 3602 expressly refers to service of the notice occurring before the preliminary injunction is set for hearing the hearing notices sent by the trial court were insufficient to comply with the statutory mandate for notice Thus as Mr Armentano and TEC were not served with notice as required by Article 3602 a preliminary injunction could not issue Finally we observe that the denial of a preliminary injunction was clearly warranted in this case Injunctions are issued in cases where irreparable injury loss or damage may otherwise result to the applicant La C art 3601 P A 4 Mr Dalke had requested that the matter be continued without date Normally a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury loss or damage if the injunction does not issue and must show entitlement to the relief sought this must be done by a prima facie showing that the party will prevail on the merits of the case State Machinery Equipment Sales Inc v Iberville Parish Council 05 2240 pp 34 La App 1st Cir 12 952 So 2d 77 80 81 The writ of injunction 06 28 extraordinary remedy a harsh drastic and should only issue in those instances where the moving party is threatened with irreparable loss or injury and is without an adequate remedy at law Irreparable injury has been interpreted to mean a loss that cannot be adequately compensated in money damages or measured by a pecuniary standard Concerned Citizens for Proper Planning LLC v Parish of Tangpahoa 04 0270 pp 5 6 La App 1st Cir 3906 So 2d 660 664 05 24 Mr Dalke has made no such prima facie showing in this matter Mr s Dalke suit is a claim for monetary damages based on the alleged failure of Mr Armentano and TEC to pay for services he rendered for their benefit While making no assertion regarding the financial viability of these defendants Mr Dalke nevertheless requested injunctive relief to restrain Mr Armentano and TEC from selling lending concealing parting with or otherwise disposing of an 000 80 gallon propane tank that allegedly was owned by TEC and located in the state of Louisiana As such Mr Dalke made no showing of irreparable injury loss or damage whereby he would be entitled to injunctive relief in the form of a TRO or preliminary injunction Thus we find no abuse of the trial court s discretion in denying Mr Dalke request for a preliminary injunction or in s dissolving the TRO See Charter School of Pine Grove Inc v St Helena Parish School Board 072238 p 9 La App 1st Cir 2 So 3d 209 218 9 09 19 recognizing that t trial court has great discretion to grant or deny injunctive he 7 relieve and its determination should not be disturbed absent a manifest abuse or discretion Nevertheless we find the trial court did err in dismissing the entire proceedings In addition to seeking a TRO and preliminary injunction Mr Dalke also requested a permanent injunction A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief Concerned Citizens for Proper Planning LLC 04 0270 at 6 906 So 2d at 664 The principal demand of the permanent injunction is determined on its merits only after a full trial under ordinary process even though the summary proceedings for the preliminary injunction may touch upon or tentatively decide issues on the merits Ouachita Parish Police Jury v American Waste and Pollution Control Company 606 So 2d 1341 1346 La App 2d Cir writ denied 609 So 2d 234 La 1992 cert denied 508 U 909 113 S 2339 S Ct 124 L 249 1993 A permanent injunction may issue only after a trial on 2d Ed the merits at which the burden of proof is a preponderance of the evidence City of Baton Rouge of East Baton Rouge v 200 Government Street LLC 08 Parish 0510 p 5 La App 1st Cir 9 995 So 2d 32 36 writ denied 08 2554 08 23 La 1 998 So 2d 726 09 9 The prima facie showing standard of proof to obtain a preliminary injunction is less than that required for a permanent injunction A hearing on a permanent injunction is an ordinary proceeding Elysian Fields Church of Christ v Dillon 08 0989 p 6 La App 4th Cir 3 7 So 3d 1227 1231 09 18 Further no security is required for a permanent injunction Elysian Fields Church of Christ 08 0989 at 7 7 So 3d at 1231 Thus although the trial court properly acted within 5 Based on the caption of Mr Dalke petition and the allegations contained therein it appears s that Mr Dalke also seeks to recover payment for his services in the proceedings however he failed to specifically ask for such relief in his prayer so it is unclear whether he actually seeks recovery of the payment or simply seeks injunctive relief pursuant to the instant action E its discretion to deny the preliminary injunction it was without authority to deny Mr Dalke request for a permanent injunction absent an evidentiary trial on the s merits of that request Furthermore in regards to the trial court consideration and dismissal of Mr s s Dalke suit in its entirety based on the objections of insufficient service and lack of personal jurisdiction over Mr Armentano we likewise find the trial court s resolution of those exceptions in the context of the hearing on the preliminary injunction was improper At the commencement of the December 1 2008 hearing Mr Dalke expressed his disagreement with the trial court considering the exceptions at the hearing on his request for preliminary injunction The trial court nevertheless proceeded to consider and sustain the declinatory exceptions filed by Mr Armentano and TEC on the basis of insufficient service and lack of personal jurisdiction The trial court erred in doing so According to La C art 1201 service of citation must be requested P C on all named defendants within 90 days of commencement of the action Once 90 days has elapsed from the commencement of the action without the required service dismissal is not automatic under the article Rather Article 1201 C further provides that the requirement that service of citation be requested within 90 days shall be expressly waived by a defendant unless the defendant files in accordance with the provisions of La C art 928 a declinatory exception P raising the objection of insufficiency of service of process specifically alleging the failure to timely request service of citation Stillman v Board of Supervisors of Southern University and Agricultural and Mechanical College 07 2107 p 4 La App 1st Cir 6 992 So 2d 523 526 writ not considered 081557 La 08 08 10 993 So 2d 1273 but see Filson v Windsor Court Hotel 04 2893 pp 3 4 La 6 907 So 2d 723 726 27 wherein the Louisiana Supreme Court 05 29 W explained that the proper manner of objecting to an action based on failure to effect service within the 90day time limit of Article 1201 is by filing a motion for C involuntary dismissal pursuant to La C art 1672 P C Mr Dalke petition for injunctive and compensatory relief was filed on s November 3 2008 Mr Armentano and TEC filed their declinatory exception raising the objection of insufficiency of service on November 21 2008 and the trial court considered and sustained the exception on December 1 2008 well before 90 days had elapsed from the filing of the petition Consequently the trial court clearly erred in sustaining the exception on the basis of insufficient service The trial court likewise erred in sustaining the declinatory exception objecting to the court jurisdiction over the person of Mr Armentano Louisiana s Code of Civil Procedure article 1571 requires district courts to prescribe the a procedure for assigning cases for trial wherein adequate notice of the proceedings is provided to all parties Pursuant to Article 1571 Rule 9 of the Uniform b 8 Rules for Louisiana District Courts provides n hearing on an exception or o motion will be scheduled until at least 15 days after filing A party seeking to have an exception or motion heard less than 15 days after filing must show good cause and must state in the exception or motion the reasons why an expedited hearing is necessary Mr Armentano and TEC filed their exceptions to Mr Dalke petition on s November 21 2008 and presented an order which was signed by the trial court setting the exceptions to be heard on the same date as Mr Dalke hearing for a s preliminary injunction In seeking expedited consideration of the exceptions Mr Armentano and TEC did not state in their pleading the reason why an expedited hearing would be necessary In a motion filed on behalf of TEC to dissolve the TRO issued by the trial court TEC included a footnote wherein it stated a s provided for in La C art 929 TEC has requested that its exceptions be P 10 set for hearing prior to any hearing on the motion to dissolve the temporary restraining order or Mr Dalke rule to show cause why a preliminary injunction s should not be granted Article 929 states that exceptions when pleaded before or in the answer shall be tried and decided in advance of the trial of the case As previously explained the TRO and preliminary injunction are incidental actions to the main demand the permanent injunction which must be decided by a trial on the merits Thus Article 929 does not provide good cause for the hearing on the exceptions to be expedited since the trial ofthe main demand was not set to be tried Moreover in his motion for new trial Mr Dalke expressly stated that he was unable to properly defend against the exceptions raised because inadequate notice of the hearing on the exceptions did not allow him sufficient time to conduct discovery to oppose the exceptions Evidence may be introduced to support or controvert the objection of lack of personal jurisdiction pleaded pursuant to a declinatory exception when the grounds thereof do not appear from the petition the citation or return thereon La C art 930 P The expedited setting of the hearing on the exceptions filed by Mr Armentano and TEC failed to allow Mr Dalke adequate notice to prepare for the hearing and thus he was clearly prejudiced as a result Cf Jones v Chevalier 579 So 2d 1217 1218 La App 3d Cir 1991 Accordingly we find the trial court sustaining of the declinatory exception on the s basis of lack ofpersonal jurisdiction must be reversed as well In light of our resolution of this appeal to partially reverse the judgment of the trial court we decline to grant Mr Armentano and TEC the relief requested in their answer to the appeal We further note that La C art 932 allows for amendment of the petition rather than P A dismissal of the action to remove the grounds for the objection if such can be done 11 CONCLUSION For the foregoing reasons we affirm the judgment of the trial courtdissolving the TRO and denying Mr Dalke request for a preliminary s injunction We reverse the trial court judgment to the extent that it sustained the s declinatory exceptions on the basis of the objections of insufficient service and lack of personal jurisdiction to dismiss Mr Dalke suit We remand this matter for s further proceedings consistent with this opinion All costs of this appeal are assessed to the appellees Robert Armentano and TEC AFFIRMED IN PART REVERSED IN PART AND REMANDED 12
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