Coastal Cargo Company LLC v. Board of Commissioners of the Port of New Orleans

COASTAL CARGO COMPANY * NO. 2024-C-0026

LLC

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VERSUS COURT OF APPEAL

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BOARD OF COMMISSIONERS FOURTH CIRCUIT

OF THE PORT OF NEW *

ORLEANS STATE OF LOUISIANA

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APPLICATION FOR WRITS DIRECTED TO

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2023-02511, DIVISION “M”

Honorable Paulette R. Irons, Judge

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Judge Dale N. Atkins

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(Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Rachael

D. Johnson)

Peter B. Sloss

Gary J. Gambel

Timothy D. DePaula

Tarryn E. Walsh

Donald R. Wing

MURPHY, ROGERS, SLOSS, GAMBEL & TOMPKINS

701 Poydras Street

Suite 400, Hancock Whitney Center

New Orleans, LA 70139

A.M. “Tony” Clayton

D’Ann R. “Dee” Penner

CLAYTON FRUGÈ WARD

3741 Louisiana Highway 1 South

Port Allen, Louisiana 70767

COUNSEL FOR RELATOR, Coastal Cargo Company, L.L.C.

David L. Patrón

Stuart G. Richeson

Virginia P. Stewart

PHELPS DUNBAR LLP

Canal Place | 365 Canal Street, Suite 2000

New Orleans, Louisiana 70130

COUNSEL FOR RESPONDENT, Board of Commissioners of the Port of

New Orleans

WRIT GRANTED; RELIEF DENIED

FEBRUARY 8, 2024

DNA

RML

RDJ

The underlying dispute in this matter concerns allegations of breach of lease,

unfair trade practices, and detrimental reliance. In its writ application to this Court,

Relator, Coastal Cargo Company, L.L.C. (“Coastal Cargo”), seeks review of the

trial court’s January 3, 2024 judgment, which granted the “Motion to Strike the

Jury Demand” (“Motion to Strike”) filed by Respondent, the Board of

Commissioners of the Port of New Orleans (“Port”). For the following reasons, we

grant Coastal Cargo’s writ application but deny relief.

RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 22, 2023, Coastal Cargo filed a “Petition for Breach of Lease,

Unfair Trade Practices, Detrimental Reliance and Damages” (“Petition”), naming

the Port as a defendant. Subsequently, on July 17, 2023, Coastal Cargo filed a

“First Amended Petition for Breach of Lease, Unfair Trade Practices, Detrimental

Reliance and Damages.” Therein, Coastal Cargo reaffirmed the allegations in its

Petition and also requested a trial by jury. In response, the Port filed its Motion to

Strike, wherein the Port contended, in pertinent part, that the trial court should

strike Coastal Cargo’s jury demand because the Port is a political subdivision,

rather than a state agency, and La. R.S. 13:5105 (also known as the Louisiana

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Governmental Claims Act) prohibits jury trials against political subdivisions. On

December 14, 2023, the trial court held a hearing on the Port’s Motion to Strike

and orally granted the Port’s Motion to Strike during the hearing. The trial court

then signed a judgment granting the Port’s Motion to Strike on January 3, 2024;

and Coastal Cargo’s timely writ application to this Court followed.

DISCUSSION

In its writ application, Coastal Cargo asserts one assignment of error,

contending that “[t]he trial court erred as a matter of law by finding, without

specific authority and contrary to this Court’s and the Louisiana Supreme Court’s

holdings otherwise, that the Port is a political subdivision, rather than a state

agency, and granting the Port’s [M]otion to [S]trike . . . , thus depriving Coastal

Cargo of its fundamental right to a trial by jury.” In its writ application, Coastal

Cargo cites jurisprudence that has referred to the Port as a state agency rather than

a political subdivision. In its opposition to Coastal Cargo’s writ application, the

Port again counters that it is a political subdivision and thus immune from jury

trials under La. R.S. 13:5105. In support, the Port argues that it is a political

subdivision due to its designation within the local government article of the 1974

Louisiana Constitution. In response to the jurisprudence cited by Coastal Cargo,

the Port argues that those are cases that were either decided prior to the 1974

Louisiana Constitution or that erroneously relied on authorities from before the

1974 Louisiana Constitution.

Standard of Review

Before turning to the merits, we consider the applicable standard of review.

The sole issue presented by Coastal Cargo’s writ application is whether the Port is

a political subdivision of the State of Louisiana and is thus immune from a jury

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trial per La. R.S. 13:5105. Our decision on this issue is not contingent upon our

resolution of any dispute(s) regarding material facts. Rather, our review of the

record reveals that determining whether the Port is a political subdivision presents

a purely legal issue and a question of interpretation of the Louisiana Constitution

and statutes. As this Court has held, when a matter “involv[es] no dispute

regarding material facts, but only the determination of a legal issue, a reviewing

court must apply the de novo standard of review, under which the trial court’s legal

conclusions are not entitled to deference.” Felix v. Safeway Ins. Co., 2015-0701, p.

6 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 631 (quoting TCC Contractors, Inc. v.

Hosp. Serv. Dist. No. 3 of Par. of Lafourche, 2010-0685, p. 8 (La. App. 1 Cir.

12/8/10), 52 So.3d 1103, 1108). Further, as the Louisiana Supreme Court has

explained, “[t]he interpretation of constitutional articles and statutes is necessarily

a question of law to which the de novo standard of review is applied.” Crooks v.

State through Dep’t of Nat. Res., 2022-00625, p. 2 (La. 1/27/23), 359 So.3d 448,

450 (citing Newman v. Marchive P’ship, Inc. v. City of Shreveport, 2007-1890, p. 3

(La. 4/8/08), 979 So.2d 1262, 1265). Accordingly, we review this matter de novo.

Louisiana Governmental Claims Act (La. R.S. 13:5105)

As stated previously, a political subdivision of the state is immune from a

jury trial when it is a defendant in a case according to La. R.S. 13:5105, which is

known as the Louisiana Governmental Claims Act. That statute provides, in

pertinent part, that “[n]o suit against a political subdivision of the state shall be

tried by jury.” La. R.S. 13:5105(A). A state agency does not have that same

immunity though. See La. R.S. 13:5105(B). Therefore, to resolve whether the Port

is subject to a jury trial in the underlying case brought by Coastal Cargo, we must

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determine if the Port is a political subdivision or a state agency. To do so, we begin

by looking to the Louisiana Constitution.

The Louisiana Constitution

The Louisiana Legislature created the Port via 1896 La. Acts 70, §1. That

Act did not specify whether the Port was a state agency or a political subdivision.

Thereafter, the 1913 Louisiana Constitution recognized the Port under the heading,

“Board of Commissioners of the Port of New Orleans.” La. Const. art. 321 (1913).

Again, however, Article 321 did not designate whether the Port was a state agency

or political subdivision. The 1921 Louisiana Constitution included the Port in the

constitutional article titled “Administrative Officers and Boards.” La. Const. art. 6,

§16 (1921). In the 1921 Louisiana Constitution, the Administrative Officers and

Boards Article followed Article V, which was the article providing for the

Executive Branch, and preceded Article VII, which was the article providing for

the Judiciary Branch.

Subsequently, the 1974 Constitution placed all deep-water port commissions

in the article titled “Local Government.” La. Const. art. VI, §43 (1974). Article VI

allowed all existing port commissions to continue to exist and granted the

Louisiana Legislature authority to confer additional powers to any port

commission. La. Const. art. VI, §43(1) (1974). Additionally, Article VI of the

1974 Louisiana Constitution defined “political subdivision” as “a parish,

municipality, and any other unit of local government, including a school board and

a special district, authorized by law to perform governmental functions.” La.

Const. art. VI, §44(2). Article VI also included the definition of “[d]eep-water port

commissions” as “those commissions or districts within whose territorial

jurisdiction exist facilities capable of accommodating vessels of at least twenty-

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five feet of draft and of engaging in foreign commerce.” La. Const. art. VI, §44 (7)

(1974).1

Of note, within the 1974 Louisiana Constitution, the Louisiana Legislature

did not place deep-water port commissions in Article IV, which pertains to the

Executive Branch. Article IV states, in pertinent part, that “[t]he executive branch

shall consist of the governor, lieutenant governor, secretary of state, attorney

general, treasurer, commissioner of agriculture, commissioner of insurance,

superintendent of education, commissioner of elections, and all other executive

offices, agencies, and instrumentalities of the state.” La. Const. art. IV, § 1

(footnote omitted). Within Article IV are sections pertaining to other entities that

are listed as state agencies according to the Office of the Louisiana Governor, such

as the Secretary of State (§ 7), the Attorney General (§ 8), the Treasurer (§ 9), the

Commissioner of Agriculture (§ 10), and the Commissioner of Insurance (§ 11).

See OFFICE OF THE GOVERNOR, “State Agencies,” https://gov.louisiana.gov.2 If the

Louisiana Legislature wanted deep-water port commissions to be considered state

agencies, the Legislature would have included them with other state agencies in

Article IV of the 1974 Louisiana Constitution as part of the executive branch of

government.

Moreover, in the restructuring associated with the 1974 Louisiana

Constitution, the Louisiana Legislature also enacted La. R.S. 18:1281, with a stated

1 We note that Coastal Cargo does not dispute that the Port is a deep-water

port.

This Court can take judicial notice of government websites. State v.

2

Melendez, 2024-0034, p. 3 (La. App. 4 Cir. 1/23/24), ___ So.3d ___, ___, n.5,

2024 WL 242867, at*2 n.5 (citing Gniady v. Ochsner Clinic Found., 2023-0215, p.

3 (La. App. 4 Cir. 12/28/23), ___ So.3d ___, ___ n.3, 2023 WL 8946265, at *2

n.3).

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“purpose . . . to implement Article VI, Section 22 of the Louisiana Constitution of

1974 by establishing a uniform procedure for the conduct of elections to authorize

the issuance of bonds, the assumption of indebtedness, and the imposition or

increase of taxes by political subdivisions.” Louisiana Revised Statutes 18:1282

defines the term “political subdivision” and includes “a port board and a port

commission” in that definition. Notably, following the 1974 Louisiana Constitution

and the enactment of these statutes, the Louisiana Attorney General’s office opined

that all port commissions are political subdivisions and not part of the executive

branch. See La. Atty. Gen. Op. No. 81-713A (1981), 1981 WL 154727

(reaffirming earlier opinions stating the same conclusion). In so concluding the

Louisiana Attorney General’s Office noted, in part, that the Louisiana Legislature

did not include any port or port district in its reorganization of the executive branch

in Title 36 of the Revised Statutes. Id. Title 36 of the Louisiana Revised Statutes is

named “Organization of Executive Branch of State Government.” La. R.S. 36:1-

960. This restructuring by the Louisiana Legislature after the adoption of the 1974

Louisiana Constitution evidences further support for concluding that the Louisiana

Legislature considered the Port to be a political subdivision, not a state agency, and

thus did not place the Port (and other ports) in the executive branch.

Further, after ratification of the 1974 Louisiana Constitution, the Louisiana

Legislature adopted other statutes applicable to the Port and created various other

port districts. See La. R.S. 34:1, et seq. Regarding the Port, the applicable statute

merely states that the Port is “continued” but does not categorize it as a state

agency or political subdivision. La. R.S. 34:1. Though the Louisiana Legislature

specifically designated some Louisiana ports as political subdivisions of the state

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in the Louisiana Revised Statutes enacted after the 1974 Louisiana Constitution,3

not all statutes creating port commissions explicitly declared that port commission

to be a political subdivision of the state. See La. R.S. 34:3158 (creating the Caddo-

Bossier Parishes Port Commission). Even without the specific designation,

however, the Louisiana Second Circuit Court of Appeal held that the Caddo-

Bossier Parishes Port Commission was a political subdivision. See Cohort Energy

Co. v. Caddo-Bossier Pars. Port Comm’n, 37,449, p. 14 (La. App. 2 Cir. 8/20/03),

852 So.2d 1174, 1182 (finding the Caddo-Bossier Parishes Port Commission was a

political subdivision and not part of the executive branch).

In reviewing these various acts of the Louisiana Legislature, we are mindful

that “[l]egislation is a solemn expression of legislative will.” La. C.C. art. 2. We

conclude that by placing all deep-water port commissions in the Local Government

article of the Constitution, the Louisiana Legislature demonstrated its intent that

port commissions are political subdivisions of the State, not state agencies. Next,

we consider what this Court and the Louisiana Supreme Court have said about

these constitutional provisions and the Port.

Jurisprudence

In discussing the above changes to the Louisiana Constitution, this Court

explained:

3 See La. R.S. 34:201 (creating the Lake Charles Harbor and Terminal

District); La. R.S. 34:241 (creating the Port of Iberia District); La. R.S. 34:321

(creating the Morgan City Harbor and Terminal District); La. R.S. 34:333.1

(creating the Abbeville Harbor and Terminal District); La. R.S. 34:334.1(creating

the Vinton Harbor and Terminal District); La. R.S. 34:334.32 (creating the West

St. Mary Parish Port, Harbor and Terminal District); La. R.S. 34:335.1 (creating

the Central Louisiana Regional Port); La. R.S. 34:1701 (creating the St. Bernard

Port, Harbor, and Terminal District); and La. R.S. 34:1351 (creating the

Plaquemines Parish Port Authority).

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Deep water port commissions and districts were dealt with generally

in Article VI, Section 43, Part IV, and not individually. A review of

the 1974 Constitution shows that the Constitutional Convention

removed all specific provisions dealing with political subdivisions,

including deep water ports, from the Constitution and placed them in

the statutory law. The particular provisions of the Louisiana

Constitution of 1921 pertaining to the Dock Board were made

statutory by Article XIV, Section 19 of the Louisiana Constitution of

1974. They were thus de-constitutionalized rather than made

autonomous. Their structure and organization, powers and functions,

jurisdiction and membership may be modified by legislative action,

albeit by a “super majority” vote. . . Deep water ports were placed in a

separate part of the article because the Constitutional Convention was

aware of the importance of these ports to the economy of the State of

Louisiana and determined as a matter of policy their existence should

be stabilized to a greater degree than the ordinary political subdivision

by requiring a “super majority” two-thirds vote of the elected

members of each house to affect their organization and structure,

powers and functions, territorial jurisdiction and membership. Article

VI, Section 43, Part IV, clearly did not have the purpose of giving

deep water ports a status of something other than a political

subdivision of the State of Louisiana.

Bd. of Comm’rs of Port of New Orleans v. La. Comm’n on Ethics for Pub. Emps.,

416 So.2d 231, 236 (La. App. 4th Cir. 1982).4 This Court has also recognized the

Port as a political subdivision in other opinions rendered since the adoption of the

1974 Louisiana Constitution. See Bd. of Comm’rs of Port of New Orleans v. City

of New Orleans, 2015-0768, p. 2 (La. App. 4 Cir. 3/16/16), 186 So.3d 1282, 1284

(declaring, “[t]he Port of New Orleans is a political subdivision of the State of

Louisiana”); Bd. of Comm’rs of Port of New Orleans v. City of New Orleans, 2013-

0881, p. 1 (La. App. 4 Cir. 2/26/14), 135 So.3d 821, 822 (declaring, “[t]he Port of

New Orleans is a political subdivision of the State of Louisiana”); and Concrete

4 Cf. La. Const. art. IV, §21 (1974) (specifically stating that the Public

Service Commission shall be in the executive branch and placing the Public

Service Commission within Article IV, which is the executive branch section of

the Louisiana Constitution). Thus, the Louisiana Constitution specified this

Commission would be a state agency within the executive branch. Had the intent

been for the Port to be designated as a state agency in the 1974 Constitution, the

Louisiana Legislature would have accomplished this in the same manner.

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Busters of La., Inc. v. Bd. of Comm’rs of the Port of New Orleans, 2010-1172, p. 2

(La. App. 4 Cir. 2/2/11), 69 So.3d 484, 486 (noting the Port is a political

subdivision of the state).

In support of its argument that the Port is a state agency, not a political

subdivision, Coastal Cargo cites State ex rel. Tallant v. Board of Commissioners of

Port of New Orleans, 161 La. 361, 108 So. 770 (1926) (wherein the Court

identified the Port as a state agency). However, the Louisiana Supreme Court

issued its decision in State ex. rel. Tallant prior to the adoption of the 1974

Louisiana Constitution. Coastal Cargo also cites to Shavers v. Sanders, which this

Court issued after the enactment of the 1974 Louisiana Constitution. unpub., 1995-

0798 (La. App. 4 Cir. 6/12/95). In Shavers, this Court found no error in the grant of

a jury trial against the Port and, in reaching that conclusion, relied on River Marine

Contractors, Inc. v. Board of Commissioners of St. Bernard Port, Harbor &

Terminal District, 568 So.2d 620 (La. App. 4th Cir. 1990). In River Marine

Contractors, Inc., this Court held that the Port was a state agency while the St.

Bernard Port, Harbor and Terminal District was a political subdivision. Id., 568

So.2d at 622. However, the Court relied on case law that predated the 1974

Louisiana Constitution, including State ex rel. Tallant. See also Hartwig Moss Ins.

Agency v. Bd. Comm’rs of Port of New Orleans, 206 La. 395, 19 So.2d 178 (1944)

(noting the Port has repeatedly been held to be a state agency); Fouchaux v. Bd. of

Comm’rs of Port of New Orleans, 186 So. 103 (La. App. Orl. 1939) (stating the

Port is a state agency).

To the extent the Port was considered a state agency pursuant to the early

Louisiana Constitutions and jurisprudence, we find that the Port’s designation as a

state agency did not continue with the ratification of the 1974 Louisiana

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Constitution and La. R.S. 34:1, et seq. The Louisiana Legislature chose to include

deep-water port commissions as part of Article VI pertaining to Local

Government, thus indicating the Legislature’s intent that the Port was not a part of

the executive branch and not a state agency. Considering the 1974 Louisiana

Constitution, Board of Commissioners of Port of New Orleans v. Louisiana

Commission on Ethics for Public Employees, Board of Commissioners of Port of

New Orleans v. City of New Orleans, Concrete Busters of Louisiana, Inc. v. Board

of Commissioners of the Port of New Orleans, and La. Atty. Gen. Op. No. 81-

713A, we conclude that the Port is a political subdivision and not a state agency.

We note further support for our conclusion is the fact that the Port is not one of the

enumerated state agencies on the website of the Louisiana Governor. See OFFICE

OF THE GOVERNOR, “State Agencies,” https://gov.louisiana.gov. Therefore, in light

of the foregoing, La. R.S. 13:5105 specifically excludes a jury trial against the

Port.

CONCLUSION

For the foregoing reasons, we grant Coastal Cargo’s writ application but

deny the relief therein sought.

WRIT GRANTED; RELIEF DENIED;

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