The Descendants Project Versus Lucien J. Gauff, III, Assessor and Greenfield Louisiana, LLC

THE DESCENDANTS PROJECT NO. 24-C-317

VERSUS FIFTH CIRCUIT

LUCIEN J. GAUFF, III, ASSESSOR AND COURT OF APPEAL
GREENFIELD LOUISIANA, LLC
STATE OF LOUISIANA

July 31, 2024

Linda Wiseman
First Deputy Clerk

IN RE PORT OF SOUTH LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH
OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE VERCELL FIFFIE,
DIVISION "A", NUMBER 79,485

Panel composed of Judges Stephen J. Windhorst,
John J. Molaison, Jr., and Amanda L. Calogero, Pro Tempore

WRIT DENIED IN PART; GRANTED IN PART

Respondents/plaintiffs, The Descendants Project (“TDP”) filed a petition for
declaratory relief on April 10, 2023, at the Fortieth Judicial District Court, which
challenged a cooperative endeavor agreement (“CEA”) between the relator, The
Port of South Louisiana (“The Port”) and Greenfield Louisiana LLC
(“Greenfield”). TDP’s original and amended petitions for declaratory relief
alleged, in summary, that the defendants engaged in a simulated sale of property
using the CEA to avoid payment of ad valorem taxes. The Port filed several
exceptions, including that TDP’s claims were perempted.1 The trial court only
granted one of The Port’s exceptions, in part. This writ application follows.

The exceptions of no cause and no right of action

The Port filed an exception of no right of action. The party raising the
exception has the burden of proving the exception. City of New Orleans v. Board
of Directors of Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748,
755. The determination of whether a plaintiff has a right of action is a question of
law, which the appellate court reviews de novo. Wallace C. Drennan, Inc. v.
Kerner, 21-664 (La. App. 5 Cir. 8/17/22), 348 So.3d 194, 199.

Our jurisprudence recognizes the right of a taxpayer to seek judicial review,
including the annulment of a contract, of acts of public servants that are alleged to
have been contrary to law, unconstitutional, or illegally confected. Bunge N. Am.,

1
Both parties agree that the applicable standards for reviewing the CEA at issue are found at La. R.S.
33:9031.1, et seq, commonly known as the “Bond Validation Statutes.”

24-C-317

Inc. v. Bd. of Com. & Indus. & Louisiana Dep't of Econ. Dev., 07-1746 (La. App. 1
Cir. 5/2/08), 991 So.2d 511, 523, writ denied sub nom. Bunge N. Am., Inc. v. Bd. of
Com. & Indus., 08-1594 (La. 11/21/08), 996 So.2d 1106, citing Roussel v. Noe,
274 So.2d 205, 210 (La. App. 1st Cir.), writ refused, 281 So.2d 743 (La.1973). The
petition was filed by “a non-profit corporation based in and owning property in St.
John the Baptist Parish.” The fact that the taxpayer's interest may be small and
insusceptible to accurate determination is insufficient to deprive him of the right.
Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941). After our de novo review, we
find no error in the trial court’s denial of its exception of no right of action.

The Port also filed an exception of no cause of action, which it was responsible
for proving. The pertinent question is whether, in the light most favorable to the
plaintiff and with every doubt resolved on the plaintiff's behalf, the petition states a
valid cause of action for relief. Pinegrove Elec. Supply Co., Inc. v. Cat Key Const.,
Inc., 11-660 (La. App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100. Whether the plaintiff
can prove the allegations outlined in the petition is not determinative of the
exception of no cause of action. New Orleans Craft Temple, Inc. v. Grand Lodge
of Free and Accepted Masons of the State of Louisiana, 13-525 (La. App. 5 Cir.
12/19/13), 131 So.3d 957, 962.

Concerning actions brought by taxpayers, our supreme court observed in
Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch. Bd., 586 So.2d
1354, 1357-58 (La. 1991):

Our jurisprudence recognizes the right of a taxpayer to enjoin
unlawful action by a public body. Under Louisiana law, a taxpayer
may resort to judicial authority to restrain public servants from
transcending their lawful powers or violating their legal duties in any
unauthorized mode which would increase the burden of taxation or
otherwise unjustly affect the taxpayer or his property.

Here, the trial court found that the plaintiffs stated a cause of action on the face of
their petition by “seeking a declaratory judgment that the property should not be
exempt from ad valorem taxation.” After review, we find no error in the trial
court’s ruling that the petition provides a sufficient cause of action.

The exception of improper cumulation of actions

In its exception of improper cumulation of actions, The Port argued that
TDP impermissibly combined the ordinary proceeding, used for a declaratory
judgment action, with the summary proceedings required for a claim raised under
the BVA. The trial court agreed and granted The Port’s exception. The Port now
argues that the trial court, in its reasons for judgment, erred in stating that the
declaratory judgment would proceed by ordinary process. Appellate courts do not
review reasons for judgment as a part of the judgment itself. La. C.C.P. art. 1918;
Burmaster v. Plaquemines Parish Government, 07-1311 (La. 8/31/07), 963 So.2d
378, 379. Nevertheless, we uphold the granting of The Port’s exception while
noting that a declaratory judgment must be tried in an ordinary proceeding.

In this assignment, The Port also claims the trial court erred in ordering a
bifurcation of TDP’s “non-existent claim for damages” in its reasons for judgment.
Again, this statement does not form part of the judgment itself. At this point in the
proceeding, there has been no judgment against The Port, nor have any damages

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been assessed. A case is not ripe for review unless it raises more than a
generalized, speculative fear of unconstitutional action. Louisiana Fed'n of Tchrs.
v. State, 11-2226 (La. 7/2/12), 94 So.3d 760, 763, citing State v. Rochon, 11-0009
(La.10/25/11), 75 So.3d 876, 882. Accordingly, we will pretermit further
discussion of this issue.

Failure to address the nullity argument

The Port argues that the trial court erred by failing to address whether the
lawsuit is an absolute nullity as a matter of law. However, silence in a judgment on
any issue placed before the court is deemed a rejection of the claim, and the relief
sought is presumed to be denied. Adams v. Sysco Food Service of New Orleans,
07-935 (La. App. 5 Cir. 6/30/08), 990 So.2d 34, 48. Therefore, we find no error
that requires correction on the showing made.

Exception of peremption

In its exception of peremption, The Port referenced Louisiana Constitution
article VI, section 35(B) which, as applied to this case,2 requires that any challenge
to the legality of a CEA must be made within 30 days after the date of the CEA’s
publication. Article VI clarifies that publication “shall be published at least once
in the official journal of the political subdivision or, if there is none, in a
newspaper having general circulation therein.” The article further provides,
“After… [30 days], no one shall have any cause of action to test the regularity,
formality, legality, or effectiveness of ... the resolution, and provisions thereof for
any cause whatever.” The Port argued in its peremption exception that TDP’s July
20, 2023 challenge to the April 11, 2022 CEA was time-barred because the
peremptive period began on May 26, 2022, the date of publication of The Port’s
resolution and the CEA in an area newspaper called the News-Examiner.

In opposing The Port’s exception of peremption, TDP did not contest the
applicability of the 30-day peremptory period. TDP also did not dispute the filing
date of its lawsuit, which was filed outside of the 30-day window. This
information, without more, indicates that TDP's action is untimely on its face.
However, TDP asserted in a pleading that the 30-day time for peremption had
never run because the CEA had never been published. Specifically, counsel for
TDP wrote in an opposing memorandum, “Defendants do not suggest that The
Port/Greenfield CEA or lease was published in a journal or newspaper. Nor can
TDP’s counsel find any indication that it was published. There is no argument or
evidence that the triggering event for peremption has occurred.” In its motion, we
note that The Port did not reference the publication requirement of Louisiana
Constitution article VI, section 35(B), and erroneously stated that the peremption
began to run from April 11, 2022, the date the CEA was entered into. However,
The Port did properly acknowledge the publication requirement at the January 18,
2024 hearing.

Ordinarily, the exceptor bears the burden of proof at the trial of the
peremptory exception. However, if the plaintiff's claim is perempted or prescribed
on its face, the burden shifts to the plaintiff to show the action is not perempted or
2
The language in Louisiana Constitution article VI, section 35(B) references “bonds” and “bond
resolutions.” However, the term “bond” and “CEA” are interchangeable under Louisiana R.S. 33:9031.1, et seq.
See, for example, Denham Springs Econ. Dev. Dist. v. All Taxpayers, Prop. Owners & Citizens of Denham Springs
Econ. Dev. Dist., 05-1684 (La. App. 1 Cir. 8/25/05), 927 So.2d 328, 335, writ granted, 05-2274 (La. 4/17/06), 945
So.2d 689, and aff'd, 05-2274 (La. 10/17/06), 945 So.2d 665.
3

prescribed. Prevo v. State ex rel. Dept, of Public Safety and Corrections Div. of
Probation and Parole, 15-0823 (La. 11/20/15), 187 So.3d 395, 398. To defeat The
Port’s exception, TDP needed to prove that the CEA was not published according
to Louisiana Constitution article VI, section 35(B), thereby interrupting or
suspending the 30 days for peremption.

On the trial of the peremptory exception pleaded at or before the trial of the
case, evidence may be introduced to support or refute any of the objections pleaded
when the grounds thereof do not appear from the petition. La. C.C.P. art. 931.
Significantly, TDP offered no evidence opposing The Port’s exception in the
record. It also did not object to The Port’s exhibits, which proved the publication
of the CEA in the News-Examiner newspaper on May 26, 2022. To the contrary,
TDP acknowledged the publication of the CEA in the News-Examiner. Counsel for
TPD asserted, without evidentiary support, that the News-Examiner was not the
correct publication, as it is a paper in St. James Parish and is not the official journal
of The Port. The argument of counsel, however, no matter how artful, is not
evidence. Rising Resources Control, Inc. v. KIE Commodities and Finance, L.L.C.,
11-1026 (La. App. 1 Cir. 12/21/11), 80 So.3d 1217, 1220, writ denied, 12-0658
(La. 4/27/12), 86 So.3d 632.

While, on the showing made, it appears that TDP did not meet its burden to
defeat the exception of peremption, we now examine the evidence before the trial
court when it considered the exception.

To establish the publication date of the CEA, The Port introduced several
exhibits at the January 18, 2024 hearing. The first was The Port’s commission
meeting minutes from August 4, 2004, which show its selection of an “official
journal” that would rotate between three specific newspapers: The St. Charles
Herald Guide, L’Obervateur, and News-Examiner. It would appear that The Port
selected one newspaper in each of the three parishes that make up its geographical
boundaries. An excerpt of the May 26, 2022, edition of the News-Examiner,
admitted into evidence without objection, includes the Commission's April 6, 2022,
meeting minutes, including the motion/resolution authorizing The Port to enter into
the CEA with Greenfield. Also entered into evidence was an invoice dated May 26,
2022, from RUHR Valley Publishing, Inc. to The Port of South Louisiana for
“Official Proceedings (Special Meeting 04-06-22).” The Port denied printing any
publication on its own that met the legal definition of an “official journal” and
referred to La. R.S. 43:171 mandates that political subdivisions such as The Port
must have their proceedings “published in a newspaper,” which is the standard it
complied with.

Considering that TDP bore the burden of proof to defeat the exception, we
find that it introduced no evidence to demonstrate that The Port published its
journal of meeting minutes and public notices. It also did not prove in the hearing
that the News-Examiner failed to qualify as a suitable publication under La. R.S.
43:171. As noted above, it did not object to or challenge The Port’s evidence
introduced into the record.

In the case of Brock v. St. James Par. Council, 400 So.2d 745 (La. Ct. App.),
writ denied, 400 So.2d 1391 (La. 1981), the Fourth Circuit considered an issue of
whether the St. James Parish Council had properly advertised a proposition
permitting the Parish to impose a sales tax and authorize the issuance of bonds. On
appeal, the plaintiff, a taxpayer, alleged improper publication of the election notice

4

and that the notice was published in a paper unqualified to serve as the official
journal of the parish. The trial court found no merit in the plaintiff’s argument. On
appeal, the Court opined:

Additionally, it should be noted that the trial judge permitted
evidence to be introduced on this issue in order that a complete record
might be had. We have examined that evidence, and we find that the
plaintiff has not proven facts which would support his contention.
During the pertinent time, the St. James Council had appointed a
newspaper to be an official journal, and the validity of that
appointment has never been adjudicated upon. Accordingly, that
newspaper is the parish journal at the time in question. We do not
think it appropriate to inquire into the qualifications of that newspaper
and the validity of its appointment in the context of this suit.
However, even conceding for the sake of argument that the
newspaper was not qualified as an official journal, nevertheless the
facts show it to be a newspaper of general circulation in the parish and
fulfilling the qualifications imposed by LSA-R.S. 18:1285. Lastly, we
point out that there is no evidence adduced which showed that any
more or less voters would have voted or that they would have voted
differently. Accordingly, we conclude that plaintiff's attack on the
election process lacks merit.

Id. at 747.

When evidence is introduced to support or refute an exception of
peremption, the court will decide the facts based on the evidence presented, and the
trial court's factual conclusions are subject to a manifest error or clearly wrong
standard of review. Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 8/6/20), 302 So.3d
157, writ granted, 20-01134 (La. 2/9/21), 309 So.3d 735, and writ granted, 20-
01143 (La. 2/9/21), 309 So.3d 735, and writ granted, 20-01156 (La. 2/9/21), 309
So.3d 738, and rev'd in part, 20-01134 (La. 10/10/21), 332 So.3d 1149. Here, the
trial court found in its reasons for judgment that The Port failed to publish the
resolution authorizing the CEA “to the official journal of the Port of Louisiana and
the L'Observateur, the official journal of Saint John the Baptist Parish.” However,
as stated above, there was no evidence that The Port published its own official
journal. While the yearly details of The Port’s selection process for official
journals are not available to us after 2004, it would appear that it continued to print
its legal notices in at least one of its picks for an official journal since that time.

As in Brock, supra, even assuming for the sake of argument that the News-
Examiner was not the official journal of The Port at the time it published the
Commission's April 6, 2022, meeting minutes in its May 26, 2022 edition, the
News Examiner still fulfilled the requirement under Louisiana Constitution article
VI, section 35(B) of being “a newspaper having general circulation.” While
L'Observateur and The St. Charles Herald Guide may have also been suitable
publications, either as official rotating journals of The Port or newspapers of
general circulation, article VI only requires placement in a single publication.
Without any evidence to the contrary, the record shows that The Port fulfilled its
duty of publishing the CEA. Accordingly, TDP’s petition was untimely filed.

After reviewing the application, the evidence introduced at the hearing, and the
judgment at issue, we find that the trial court was manifestly erroneous in its

5

finding of fact regarding The Port’s Exception of Peremption and reverse its ruling.
Accordingly, for the reasons stated, we partially deny The Port’s writ application
and grant the writ on the issue of the exception of peremption.

Gretna, Louisiana, this 31st day of July, 2024.

JJM
SJW
ALC

6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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24-C-317
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40th District Court (Clerk)
Honorable Vercell Fiffie (DISTRICT JUDGE)
William B. Most (Respondent) Peter J. Butler, Jr. (Relator)
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Caroline Gabriel (Respondent) Kayla M. Jacob (Relator)
Attorney at Law Attorney at Law
201 St. Charles Avenue 909 Poydras Street
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