Darre Finney and Glenda Marie Smith v. the Board of Commissioners of the Port of New Orleans, M/V Cma Cgm Bianca and Teucarrier No. 3 Corp.

DARRE FINNEY AND * NO. 2025-CA-0423
GLENDA MARIE SMITH
*
VERSUS COURT OF APPEAL
*
THE BOARD OF FOURTH CIRCUIT
COMMISSIONERS OF THE *
PORT OF NEW ORLEANS, STATE OF LOUISIANA
M/V CMA CGM BIANCA AND *******
TEUCARRIER NO. 3 CORP.

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2021-04424, DIVISION “J”
Honorable D. Nicole Sheppard
******
Judge Monique G. Morial
******
(Court composed of Judge Rosemary M. Ledet, Judge Nakisha Ervin-Knott, Judge
Monique G. Morial)

Pete Lewis
Barrett R. Stephens
LEWIS & CAPLAN, APLC
111 Veterans Memorial Blvd., Suite 160
Metairie, LA 70005

COUNSEL FOR PLAINTIFFS/APPELLEES

Jason Paul Waguespack
Samuel L. Fuller
Cody W. Castle
GALLOWAY, JOHNSON, TOMPKINS & BURR
701 Poydras Street, 40th Floor
New Orleans, LA 70139

COUNSEL FOR DEFENDANT/APPELLEE

Scott Allen Soule
Josephine H. Azuma
BLUE WILLIAMS, LLC
3421 N. Causeway Blvd., Suite 900
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED
JANUARY 7, 2026

This is a suit for damages. The Appellant, the Board of Commissioners of

MGM the Port of New Orleans, (“PORT”) appeals the August 15, 2024 and November
RML
NEK 15, 2024 judgments of the trial court that found in favor of Appellees, Darre

Finney and Glenda Marie Smith, and against the PORT and Defendant-Appellee,

Teucarrier 3 Corporation (“Teucarrier”).1 For the following reasons, we vacate and

remand to the trial court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 2020, Appellee, Darre Finney, a gantry crane operator,

sustained injuries while loading a vessel, the M/V CMA CGB BIANCA,

(“BIANCA”) at the Nashville Avenue Terminal at the Port of New Orleans. Mr.

Finney’s crane sat approximately ninety (90) feet in the air; as he loaded cargo

unto the BIANCA, a volatile storm quickly arose causing blinding rain and intense

winds. During this wind-event, Mr. Finney continued loading containers onto the

BIANCA until strong winds pushed his crane down river and slammed him around

inside the cab of the crane. It’s the PORT’s contention however, that the BIANCA

1 Prior to trial, Appellees and Teucarrier entered into a “Mary Carter” agreement, in which

Appellees claims against Teucarrier were resolved. These parties then aligned interests in
prosecuting the remaining claims against the PORT. Teucarrier, although an original Defendant
in the trial court, is the Defendant-Appellee in this appeal.

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dragged his crane when it came loose from its moorings. As a result of this event,

Mr. Finney sustained injuries to his right shoulder and his lumbar spine. Mr.

Finney endured several surgeries to his right rotator cuff and a lumbar fusion

surgery at the L3-4 level.

In May of the following year, Appellees filed a petition for damages alleging

negligence against the PORT, the BIANCA, and Teucarrier, the registered owner

of the BIANCA. Appellee Finney argued that he was injured because the PORT

allowed unreasonable and dangerous conditions to exist on the gantry crane he

operated during the storm. He also alleged that Teucarrier failed to exercise

reasonable care as the BIANCA collided with the PORT’s dock and his gantry

crane also contributing to his injuries. In October 2023, Teucarrier filed a motion

for summary judgment arguing there was no basis of liability between it and

Appellee Finney pursuant to §905 of the Longshore and Harbor Worker’s

Compensation Act.2 Teucarrier also alleged that it did not breach any Scindia3

2 33 U.S.C.A. § 905(b), Negligence of vessel, provides:

In the event of injury to a person covered under this chapter caused by the
negligence of a vessel, then such person, or anyone otherwise entitled to recover
damages by reason thereof, may bring an action against such vessel as a third
party in accordance with the provisions of section 933 of this title, and the
employer shall not be liable to the vessel for such damages directly or indirectly
and any agreements or warranties to the contrary shall be void. If such person was
employed by the vessel to provide stevedoring services, no such action shall be
permitted if the injury was caused by the negligence of persons engaged in
providing stevedoring services to the vessel. If such person was employed to
provide shipbuilding, repairing, or breaking services and such person's employer
was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no
such action shall be permitted, in whole or in part or directly or indirectly, against
the injured person's employer (in any capacity, including as the vessel's owner,
owner pro hac vice, agent, operator, or charterer) or against the employees of the
employer. The liability of the vessel under this subsection shall not be based upon
the warranty of seaworthiness or a breach thereof at the time the injury occurred.
The remedy provided in this subsection shall be exclusive of all other remedies
against the vessel except remedies available under this chapter.
3 The United States Fifth Circuit summarized the duties shipowners owe to longshoreman,
termed Scindia duties: 1) the turnover duty; 2) the active control duty; and 3) the duty to

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duties owed to Appellee Finney. In opposition, Appellee argued that genuine issues

of material fact existed as to whether Teucarrier breached its duties that precluded

summary judgment. The trial court denied Teucarrier’s motion for summary

judgment in November 2023.

Trial commenced in this matter in early December 2023 lasting

approximately four days. In August 2024, the trial court rendered judgment for the

Appellees and against the PORT and Teucarrier in the amount of ($3,142,111.08).

Shortly thereafter, the PORT filed a motion to amend post-trial deadlines arguing

that it had not been served with the August 15, 2024 judgment or Notice of Signing

of Judgment pursuant to La. C.C.P art. 1913.4 The trial court denied the PORT’s

motion on August 26, 2024 stating that the motion must be set for contradictory

hearing. Subsequently, the PORT filed a motion for new trial, arguing that the trial

court failed to address Appellee Smith’s loss of consortium claim in the judgment,

intervene. Hill v. Texaco., 674 F.2d 447, 451 (5th Cir. 1982 citing Scindia Steam Navigation Co.
v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed.2d 1 (1981)).
4 La. C.C.P. art. 1913 provides:

A. Except as otherwise provided by law, notice of the signing of a final judgment
is required in all contested cases and shall be mailed or delivered in open court by
the clerk of court to the counsel of record for each party, and to each party not
represented by counsel. Delivery of the signed judgment in open court shall
constitute notice of judgment and shall be documented in the record of the
proceeding.
B. Notice of the signing of a default judgment against a defendant on whom
citation was not served personally, or on whom citation was served through the
secretary of state, and who filed no exception, answer, or other pleading, shall be
served on the defendant by the sheriff, by either personal or domiciliary service,
or in the case of a defendant originally served through the secretary of state, by
service on the secretary of state.
C. Except when service is required in accordance with Paragraph B of this
Article, notice of the signing of a default judgment shall be mailed by the clerk of
court to the defendant at the address where personal service was obtained or to the
last known address of the defendant.
D. The clerk shall file a certificate in the record showing the date on which, and
the counsel and parties to whom, notice of the signing of the judgment was mailed
or delivered in open court.

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and the judgment appeared contrary to the law and evidence. The hearing on the

PORT’s motion for new trial was set for March 27, 2025 and the court denied it on

April 9, 2025 after the second judgment had been issued. 5

In early October 2024, counsel for Appellees submitted a second judgment

to the trial court regarding the trial held the previous year. The judgment reads, in

pertinent part, as follows:

IT IS ORDERED, ADJUDGED, and DECREED that Judgment is
hereby rendered in favor of Plaintiffs, Darre Finney and Glenda Marie
Smith, and against Defendants, The Board of Commissioners for the
Port of New Orleans and Teucarrier No. 3 Corporation, finding said
Defendants at fault and liable for the August 2, 2020, incident made
the subject of this lawsuit. The Court apportions fault to Defendants
for causing the August 2, 2020 incident as follows:
The Board of Commissioners for the Port of New Orleans: 65%
Teucarrier No. 3 Corporation: 35%
________________________________________________________
TOTAL: 100%

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that
Judgement [sic] is rendered in favor of Plaintiff, Darre Finney, and
against Defendants, The Board of Commissioners of The Port of New
Orleans and Teucarrier No. 3 Corporation, finding that Darre Finney
proximately suffered injuries and damages as a result of the
negligence of Defendants, The Board of Commissioners of The Port
of New Orleans and Teucarrier No. 3 Corporation. Accordingly, the
court hereby orders that Defendants, The Board of Commissioners of
The Port of New Orleans and Teucarrier No. 3 Corporation, pay
damages to Plaintiff, Darre Finney, as follows:

Past Medicals: $ 129,241.08
Future Medicals: $ 559[.]448.00
Past Lost Wages: $ 613,871.00
Past Fringe Benefits: $ 132,331.00
Future Lost Wages/Loss of Earning Capacity $ 825,923.00
Future Finge[sic] Benefits: $ 176,747.00
Past and Future Physical Pain and Suffering-Right Shoulder: $ 250,000.00
Past and Future Physical Pain and Suffering-Back Injury: $ 350,000.00
5 For the purpose of the instant appeal, we deem the PORT’s motion for new trial timely.

Pursuant to La. C.C.P. art. 1974, “A party may file a motion for a new trial not later than seven
days, exclusive of legal holidays, after the clerk has mailed or delivered in open court, or the
sheriff has served, the notice of judgment as required by Article 1913.” On August 22, 2024,
counsel for Appellee emailed a copy of the judgment and Notice of Signing of Judgment to the
PORT. The PORT filed its motion for new trial on August 29, 2024.

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Past and Future Emotion Pain and Suffering-PTSD: $ 50,000.00
_______________________________________________________________
TOTAL: $ 3,087,561.08

IT IS FURTHER ORDERED, ADJUDGED and DECREED that
Judgement [sic] is rendered in favor of Plaintiff, Glenda Marie Smith,
and against Defendants, The Board of Commissioner of The Port of
New Orleans and Teucarrier No. 3 Corporation, finding that Glenda
Marie Smith proximately suffered loss of consortium damages as a
result of the negligence of Defendants, The Board of Commissioners
of The Port of New Orleans and Teucarrier No. 3 Corporation.
Accordingly, the Court hereby orders that Defendants, The Board of
Commissioners of The Port of New Orleans and Teucarrier No. 3
Corporation, pay damages to Plaintiff, Glenda Marie Smith, as
follows:

Loss of Consortium: $100,000.00
_______________________________________________________________
TOTAL: $100,000.00

The trial court signed this second judgment on November 15, 2024. The instant

appeal followed after the trial court issued its judgment on the PORT’s motion for

new trial on April 9, 2025.

DISCUSSION

On appeal, the PORT assigns ten assignments of error. However, we

pretermit discussion of those assignments of error at this time and instead address

several procedural errors in the trial court’s judgments.

November 15, 2024 judgment (second judgment)

The second judgment signed by the trial court contains a loss of consortium

damage award for ($100,000.00) for Appellee Smith that is not contained in the

original judgment. The second judgment also awards damages separately to the

Appellees, in contrast to the original judgment, which awards the total amount of

damages to the parties jointly, or in solido. In its brief to this court, the PORT

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notes that it is taking this appeal from both judgments; however, the record does

not reflect the trial court’s posture with respect to these two judgments. While the

PORT deems the second judgment “a corrective judgment,” the record is devoid of

evidence of the trial court’s intent in signing the second judgment.6 La. C.C.P. art.

1951 applies to final judgments and states:

On motion of the court or any party, a final judgment may be
amended at any time to alter the phraseology of the judgment or to
correct deficiencies in the decretal language or errors of calculation.
The judgment may be amended only after a hearing with notice to all
parties, except that a hearing is not required if all parties consent or if
the court or the party submitting the amended judgment certifies that
it was provided to all parties at least five days before the amendment
and that no opposition has been received. A final judgment may not
be amended under this Article to change its substance.

(Emphasis added).

While the statute permits the trial court to amend a final judgment at any

time, it “may change the substance of the original judgment in three ways: 1) the

timely motion for new trial; 2) timely appeal; or 3) petition or action for nullity.”

Mercato v. Elisio, L.L.C. v. City of New Orleans, 22-0228, p. 7 (La. App. 4 Cir.

12/21/22), 356 So.3d 505, 510 (quoting Safeguard Storage Properties, L.L.C. v.

Donahue Favret Contractors, Inc., 10-0673, p. 9 (La. App. 4 Cir. 3/31/11), 60

So.3d 110, 117 (internal quotations omitted). This Court discussed in detail the

trial court’s authority to amend a final judgment pursuant to La. C.C.P. art. 1951 in

Bates v. City of New Orleans, 13-1153 (La. App. 4 Cir. 3/26/14), 137 So.3d 774:

• “Article 1951 contemplates the correction of a ‘clerical error’
in a final judgment, but does not authorize substantive amendments.”
An amendment that “adds to, subtracts from, or in any way affects the
substance of a judgment, is considered a substantive amendment.”

6 There is no evidence in the record that the trial court vacated the original judgment. Also, the

caption of the second judgment does not demonstrate that it is a “corrective” or amended
judgment.

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• The substance of a judgment can be altered only by a timely
motion for new trial, nullity action, or appeal.

• “The trial judge cannot, on his own motion or on the motion
of any party, change a judgment which has been so signed,
notwithstanding it was signed in error.”

• “La. C.C.P. art.1951 does not permit the trial court to
substantively alter a final judgment even if the amendment merely
expresses the trial judge’s actual intention. The trial court’s written
judgment is controlling, even if the trial judge may have intended
otherwise.”[7]

• A trial court’s authority on a motion to enforce a final
judgment is limited to enforcing its judgment as written.

• Substantive amendments to judgments made without recourse
to the proper procedures—a timely motion for a new trial or an
appeal—are absolute nullities.

• The remedy generally granted by an appellate court when it
finds an improper substantive amendment has been made to a final
judgment is to set aside and annul the amending judgment and to
reinstate the original judgment.

Bates, 13–1153, pp. 13-14, 137 So.3d at 784-85 (internal citations omitted); see

also Freeman v. Zara’s Food Store, Inc., 16-0445, p. 13 (La. App. 4 Cir. 11/2/16),

204 So.3d 691, 699–70.

Applying these principles, we find that the trial court improperly made a

substantive amendment to the original judgment upon signing the second judgment

in November. The damage award for loss of consortium added an item of damages

not present in the original judgment. The trial court also failed to follow the proper

procedure to substantively amend the judgment when it denied the PORT’s motion

7 We note that in the partial transcript of the July 1, 2024 hearing, the trial judge rendered

judgment on the record in favor of Appellees and against the PORT and Teucarrier. The trial
judge made no findings of fact and did not give oral reasons for the judgment. The trial judge
specified separate damage awards for the Appellees for a total award of $3,142,111.08. The trial
judge did not make an assignment of liability at that time but stated that the judgment was
against both defendants. The trial judge also stated that the judgment would be signed on the
same day. It is unclear from the record why the judgment signed on August 15, 2024 does not
reflect the trial judge’s original intent.

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for new trial and did not consider that motion until after the second judgment had

been issued.8 Thus, pursuant to the statutory law and the above-cited jurisprudence,

the second judgment is an absolute nullity.

August 15, 2024 judgment (original judgment)

The original judgment reads, in pertinent part, as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Judgment is
hereby rendered in favor of favor of Plaintiffs, Darre Finney and
Glenda Marie Smith, and against defendants The Board of
Commissioners of the Port of New Orleans (65%) and Teucarrier No.
3 Corporation (35%) in the amount of three million, one hundred
forty-two thousand, one hundred eleven and 08/100 dollars
($3,142,111.08) plus judicial interest from the date of judicial demand
and with all recoverable costs being assessed and taxed against
Defendants herein.

After review of the trial court’s original judgment, we also find it deficient

as it does not comply with La. C.C.P. arts. 1917(B) and 1812(C). La. C.C.P. art.

1917(B) concerns bench trials in personal injury cases and provides as follows:

B. In nonjury cases to recover damages for injury, death, or loss,
whether or not requested to do so by a party, the court shall make
specific findings that shall include those matters to which reference is
made in Paragraph C of Article 1812 of this Code. These findings
need not include reasons for judgment.[9]

La. C.C.P. art. 1812(C) provides in pertinent part:

C. In cases to recover damages for injury, death, or loss, the court at
the request of any party shall submit to the jury special written
questions inquiring as to:
(1) Whether a party from whom damages are claimed, or the person
for whom such party is legally responsible, was at fault, and, if so:
(a) Whether such fault was a legal cause of the damages, and, if so:
(b) The degree of such fault, expressed in percentage
…

8 The trial court denied the PORT’s motion for new trial on April 9, 2025.

9 We note for the record that the PORT requested written reasons for judgment after each
judgment was issued. The appellate record does not contain any written reasons from the trial
court. Failure to provide written reasons pursuant to the request is a violation of La. C.C. P. art
1917(A).

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(4)The total amount of special damages and the total amount of
general damages sustained as a result of the injury, death or loss,
expressed in dollars, and, if appropriate the total amount of exemplary
damages to be awarded.

Thus, the above-cited articles mandate that after a bench trial, a trial court

shall make these specific findings of fact, whether or not either party requests

them. See Laboriel-Pitio v. Latiker, 20-0669, p. 13 (La. App. 4 Cir. 6/16/21), 323

So.3d 929, 937. While the original judgment finds against the PORT and

Teucarrier and assigns percentages to them, sixty-five percent (65%) and thirty-

five percent (35%) respectively, the original judgment is silent as to liability. The

judgment also fails to find that the PORT and Teucarrier were negligent or at fault,

or that the fault was the legal cause of Appellees’ damages. While the original

judgment awards a specific amount to the Appellee Finney and Appellee Smith, it

does not designate the award as either general damages or special damages. Based

on these deficiencies, the original judgment also must be vacated. Pursuant to La.

C.C.P. art. 2164,10 we exercise our discretion and vacate the trial court’s original

judgment. Further, we remand this matter to the trial court to issue a judgment

consistent with La. C.C.P. arts. 1917 and 1812. See La. C.C.P. art. 2161.11 See also

10 La. C.C.P. art. 2164 provides:

The appellate court shall render any judgment which is just, legal, and proper
upon the record on appeal. The court may award damages, including attorney
fees, for frivolous appeal or application for writs, and may tax the costs of the
lower or appellate court, or any part thereof, against any party to the suit, as in its
judgment may be considered equitable.
11 La. C.C.P. art. 2161 provides:

An appeal shall not be dismissed because the trial record is missing, incomplete or
in error no matter who is responsible, and the court may remand the case either
for retrial or for correction of the record. An appeal shall not be dismissed
because of any other irregularity, error or defect unless it is imputable to the
appellant. Except as provided in Article 2162, a motion to dismiss an appeal
because of any irregularity, error, or defect which is imputable to the appellant

9

Jones v. Quality Distrib., Inc., 21-0280, p. 2 (La. App. 4 Cir. 8/4/21), 325 So.3d

1097, 1098.

DECREE

For the foregoing reasons, the August 15, 2024 and November 15, 2024

judgments of the trial court are vacated. This matter is remanded to the trial court

for proceedings consistent with this opinion.

VACATED AND REMANDED

must be filed within three days, exclusive of holidays, of the return day or the date
on which the record on appeal is lodged in the appellate court, whichever is later.

10