canal/claiborne, Limited v. Stonehedge Development, LLC

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #063

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 9th day of December, 2014, are as follows:

BY GUIDRY, J.:

2014-C -0664 CANAL/CLAIBORNE, LIMITED v. STONEHEDGE DEVELOPMENT, LLC (Parish
of Jefferson)

Accordingly, we conclude the trial court was without subject
matter jurisdiction to entertain the plaintiff’s claim for
enrichment without cause and dismiss that claim with prejudice.
REVERSED AND REMANDED TO THE DISTRICT.

WEIMER, J., concurs in part and dissents in part.
HUGHES, J., concurs in part and dissents in part for the reasons
assigned by Justice Weimer.
12/09/14

SUPREME COURT OF LOUISIANA

No. 2014-C-0664

CANAL/CLAIBORNE, LIMITED

VERSUS

STONEHEDGE DEVELOPMENT, LLC

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
FIFTH CIRCUIT, PARISH OF JEFFERSON

GUIDRY, Justice

The Louisiana Constitution of 1974 provides for the waiver of sovereign

immunity from suits in contract or tort against the state, a state agency, or a

political subdivision. La. Const. art. XII, Sect. 10(A). In all “other suits against

the state, a state agency, or a political subdivision,” the legislature “may authorize”

such suits by a “measure . . . waiv[ing] immunity from suit and liability.” La.

Const. art. XII, Sect. 10(B). Following Hurricane Katrina, the defendant state

agency for a period of time failed to remove its partially damaged movable

property from the premises of the plaintiff’s building. During this time, the

defendant state agency also failed to remit rental payments to plaintiff’s lessee,

who had in turn subleased the premises to the defendant state agency. The plaintiff

sought remuneration for lost rental income. The issue presented in this case is

whether the plaintiff’s quasi-contractual claim of unjust enrichment, based on the

lost rental income, falls within the scope of that waiver of sovereign immunity.

For the reasons set forth below, we find the plaintiff’s unjust enrichment claim

does not fall within the scope of the waiver of sovereign immunity in contract or

tort. We also find the plaintiff’s suit asserting a claim of unjust enrichment has not

1
been otherwise permitted by the legislature in a “measure authorizing … immunity

from suit and liability.”

FACTS and PROCEDURAL HISTORY

Canal/Claiborne, Limited (hereinafter “Canal/Claiborne”) is the owner of

property located at 1661 Canal Street in New Orleans. In January 1995,

Canal/Claiborne entered into a lease with Stonehedge Development, L.L.C.

(hereinafter “Stonehedge”). Stonehedge, in the business of leasing properties to

governmental entities, entered into a sublease in June 1995 with the State of

Louisiana, Department of Children and Family Services (hereinafter

“Department”). The Department occupied the premises, remitting monthly rent

payments of about $53,000.00 to Stonehedge, which in turn remitted monthly

payments of about $36,000.00 to Canal/Claiborne until Hurricane Katrina struck

the city in 2005.

The premises were significantly damaged, rendering the building

uninhabitable. Canal/Claiborne repaired the building and reopened it in November

2005, except those areas occupied by the Department, which had initially not

allowed removal of its damaged furniture, supplies, and sensitive files.

Canal/Claiborne continued to invoice Stonehedge for the monthly rentals as they

accrued. By December 2005, the Department had authorized Canal/Claiborne to

clean out the Department’s property from the first floor, and by March 2006, the

Department had removed a major portion of its property on the second floor. The

Department made no rental payments from November 2005 until the middle of

June 2006, when the Department entered into an emergency procurement lease

directly with Canal/Claiborne and began remitting payments to Canal/Claiborne.

Canal/Claiborne filed a petition for sums due under the lease in January

2006, alleging Stonehedge was in default under the lease and that the Department,

2
by not removing its property, was continuing to occupy the building. In July 2007,

Stonehedge filed a third party demand against the Department, incorporating all of

the allegations contained in the original petition. In June 2010, Canal/Claiborne

amended and supplemented its original petition to add a direct claim against the

Department, asserting the terms of the sublease between Stonehedge and the

Department and seeking additional rentals or other damages without pleading a

specific legal theory. The Department filed a dilatory exception of prematurity

asserting Canal/Claiborne “failed to adhere to La. R.S. 39:1673 and acquire a

decision from the chief procurement officer of the Department of Administration

prior to the commencement of an action in court . . ..”1 The trial court overruled the

exception on two grounds: Canal/Claiborne did not directly contract with the

Department and the Department had effectively waived the administrative remedy

when it voluntarily withdrew a previous dilatory exception against Stonehedge and

by its ongoing participation in the litigation.

Eventually the matter proceeded to a bench trial in October 2012 against the

Department only, Canal/Claiborne having settled with Stonehedge. In November

2012, the trial court entered judgment in favor of Canal/Claiborne and against the

Department, awarding $188,066.24 in damages with legal interest from the date of

judicial demand. The judgment did not expressly state a legal theory underlying

the Department’s liability, merely awarding “damages suffered . . . as a result of

the . . . occupancy of 1661 Canal Street . . ..”

The court of appeal affirmed the trial court’s judgment, finding no error in

the denial of the Department’s exception of prematurity under La. Rev. Stat.

39:1673. The appellate court found no error in the trial court’s conclusion that

1
The Louisiana Procurement Code provides for an administrative procedure to resolve
“controversies between the state and a contractor and which arise under or by virtue of a contract
between them.” La. Rev. Stat. 39:1673(A).
3
Canal/Claiborne was not a contractor with the Department and that

Canal/Claiborne’s suit “is for unjust enrichment or damages for trespass.”

Canal/Claiborne, Limited v. Stonehedge Development, LLC, 13-0641 (La. App. 5

Cir. 2/26/14), 136 So.3d 326, 328.

The Department applied for writs of review in this court and, at the same

time, filed a declinatory exception of lack of subject matter jurisdiction and a

peremptory exception of prescription. The Department has for the first time in any

court raised the issue of subject matter jurisdiction, arguing that Canal/Claiborne

has asserted a quasi-contractual unjust enrichment claim against the Department

for storing items on Canal/Claiborne’s property for a certain period of time. The

Department asserts that, under La. Const. art. XII, Sect. 10(A), “[n]either the state,

a state agency, nor a political subdivision shall be immune from suit and liability in

contract or for injury to a person or property.” Because sovereign immunity has

not been waived as to suits asserting claims for unjust enrichment, and because

Canal/Claiborne’s claim is a quasi-contractual claim for unjust enrichment, the

Department contends the judgment of the trial court is a nullity under La. Code

Civ. Proc. art. 2002(A)(3) because the court lacked jurisdiction over the subject

matter of the claim.

We granted the writ application to determine whether the plaintiff’s unjust

enrichment claim falls within the scope of the waiver of immunity “from suit and

liability in contract” for purposes of La. Const. art. XII, Sect. 10.

Canal/Claiborne, Limited v. Stonehedge Development, LLC, 14-0664 (La.

06/20/14), ___ So.3d ___.

ANALYSIS

Although not raised in the lower courts, we find the Department’s exception

of subject matter jurisdiction is properly raised in this court. Louisiana courts have

4
recognized that such an exception may be raised at any stage of the proceedings,

including at the appellate level. Piper v. Olinde Hardware & Supply Co., 288

So.2d 626 (La. 1974); Colaccurcio v. Ledet, 94-1798 (La. App. 4 Cir. 9/28/95),

662 So.2d 65. The jurisdiction of a court over the subject matter of an action or

proceeding cannot be conferred by consent of the parties. La. Code Civ. Proc. art.

3. Thus, a judgment rendered by a court with no jurisdiction over the subject

matter of the action or proceeding is void. Id.

Turning to the merits of the exception, we must determine whether the

plaintiff’s alleged quasi-contractual claim of unjust enrichment falls within the

scope of the waiver of immunity set forth in La. Const. art. XII, Sect. 10(A). For

the reasons set forth below, we find that it does not.

The starting point in the interpretation of constitutional provisions is the

language of the Constitution itself. Louisiana Mun. Ass’n v. State, 00-0374, p. 5

(La. 10/6/00), 773 So.2d 663, 667. When a constitutional provision is plain and

unambiguous, and its application does not lead to absurd consequences, its

language must be given effect. Id. at pp. 5-6, 773 So.2d at 667. The Louisiana

Constitution of 1974 provides, in Article XII, Section 10(A): “Neither the state, a

state agency, nor a political subdivision shall be immune from suit and liability in

contract or for injury to person or property.” This court has recognized Section

10(A) as an “unequivocal, self-executing waiver of sovereign immunity as to suit

and liability in contract and tort cases.” Fulmer v. State, Dept. of Wildlife and

Fisheries, 10-2779 (La. 7/1/11), 68 So.3d 499, 503 (quoting Jacobs v. City of

Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14, 22). This language is clear and

unambiguous, and we need not rely on the constitutional debates to infer any

qualifications in that waiver. See Chamberlain v. State of Louisiana, Dept. of

Transp. and Dev’t, 93-472 (La. 9/3/93), 624 So.2d 874.

5
 In this case, the plaintiff’s claim against the Department is in part, at least,

one for enrichment without cause, see La. Civ. Code art. 2298, as there exists no

contract between Canal/Claiborne and the Department. Both the trial court and the

court of appeal concluded there was no contract between the parties, and

Canal/Claiborne has conceded it was not a contractor with the Department and,

thus, not bound by the administrative procedures set forth in La. Rev. Stat.

39:1673. In this case, the Department entered into a sublease with Stonehedge, the

original lessee. A sublease is an agreement in which the original lessee leases to a

third party, the sublessee, all or part of the property leased to the original lessee by

the owner of the property. When Stonehedge and the Department entered into a

sublease of the Canal Street property, a new contract came into existence that was

separate and distinct from the original lease between the sublessor, Stonehedge,

and the owner of the property, Canal/Claiborne. See Bourgeois, Dupuis, Wright &

Cohen v. Hayes, 457 So.2d 231 (La. App. 3rd Cir.), writ denied, 461 So.3d 315 (La.

1984). Although Canal/Claiborne asserts the lease and sublease effectively

constituted “a contractual arrangement” through which it received a “pass-through

portion” of the monthly rentals the Department was obligated to pay Stonehedge,

we conclude there was no privity of contract under the sublease between

Canal/Claiborne as the owner of the property and the Department as the sublessee.

See Id.

Nor do we find any merit to Canal/Claiborne’s assertion that it was a third-

party beneficiary of the sublease between Stonehedge and the Department and,

therefore, the Department is liable in contract to Canal/Claiborne. Under a

stipulation pour autrui, a contracting party may stipulate a benefit for a third

person, who must then manifest an intention to avail himself of the benefit. La.

Civ. Code art. 1978. This court has identified three criteria for determining

6
whether the contracting parties have provided a benefit to a third party: 1) the

stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit

provided the third party; and 3) the benefit is not a mere incident of the contract

between the promisor and the promissee. Joseph v. Hospital Serv. Dist. No. 2 of

Parish of St. Mary, 05-2364, pp. 8-9 (La. 10/15/06), 939 So.2d 1206, 1212.

Although the original lease between Canal/Claiborne and Stonehedge was

predicated on Stonehedge subleasing the property to a governmental entity, the

sublease between Stonehedge and the Department makes no reference whatsoever

to Canal/Claiborne, whether as the property owner, the original lessor, or as a third

party beneficiary of the sublease. The most basic requirement of a stipulation pour

autrui is that the contract in question manifest a clear intention to benefit the third

party; absent such a clear manifestation, a party claiming to be a third party

beneficiary cannot meet his burden of proof. Joseph, p. 9, 939 So.2d at 1212. A

stipulation pour autrui is never presumed. Id. Here, Canal/Claiborne argues the

benefit provided to it was “a specified amount of the monthly rentals – the amount

[the Department] paid less Stonehedge’s ‘cut.’” Canal/Claiborne further argues

that it not only accepted the benefit when it received these rental payments, but it

also accepted the legal obligations of lessor that accompanied that benefit. Despite

such arguments, Canal/Claiborne has failed to point to any actual provision in the

sublease that manifests any specific benefit to a third person, namely

Canal/Claiborne. Furthermore, there is no certainty as to any benefit to

Canal/Claiborne from the sublease and any benefit inuring to Canal/Claiborne is

merely incidental to the sublease between Stonehedge and the Department. As this

court has noted, “‘not every promise, performance of which may be advantageous

to a third person, will create in him an actionable right.’” Joseph, pp. 9-10, 939

So.2d at 1212-13 (quoting Smith, J. Denson, Third Party Beneficiaries in

7
Louisiana: The Stipulation Pour Autrui, 11 Tul. L.Rev. 18, 28 (1936)). We

conclude Canal/Claiborne had no rights under the sublease as a beneficiary thereto,

and, therefore, the Department was not liable in contract to Canal/Claiborne

pursuant to the sublease. See La. Civ. Code arts. 1978 et seq.

We conclude that Canal/Claiborne has failed to identify a claim against the

Department sounding in contract that would fall within the scope of the waiver of

immunity found in La. Const. art. XII, Sect. 10(A). That a claim of enrichment

without cause under La. Civ. Code art. 2298 is a quasi-contractual claim is well-

settled in our jurisprudence. “There is a general concept of quasi contractual

obligations; it is a concept based upon the principle that where there is an unjust

enrichment of one at the expense or impoverishment of another, then the value of

that enrichment or else, in some cases, the amount of the impoverishment must be

restituted.” Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 432 (La.

1967) (citing Planiol, Traité Élémentaire De Droit Civil, T. 2, no. 812, no. 813 (8th

ed. 1939)). As we have noted, the language of the waiver of immunity from suits in

contract is clear and unambiguous. When a constitutional provision is clear and

unambiguous and its application does not lead to absurd consequences, it must be

applied as written and no further interpretation need be made in search of the intent

of the drafters or the electorate. See La. Civ. Code art. 9; Louisiana Mun. Ass'n,

pp. 5-6, 773 So.2d at 667; Chamberlain, 624 So.2d at 886. We find no absurd

consequences in concluding this provision does not include a waiver of immunity

for quasi-contractual claims. Although Canal/Claiborne points to the unique

circumstances of this case, both in light of the devastation of Hurricane Katrina

and the Department’s conduct before and after the commencement of litigation,

Canal/Claiborne had remedies under its lease with Stonehedge and remedies in tort

8
against the Department.2 Thus, we find the unjust enrichment claim asserted by

Canal/Claiborne does not fall within the scope of the waiver of sovereign

immunity from suits in contract found in La. Const. art. XII, Sect. 10(A).

Accordingly, unless otherwise authorized by the legislature, the trial court was

without subject matter jurisdiction to entertain Canal/Claiborne’s unjust

enrichment claim against the Department.

Turning to La. Const. art. XII, Sect. 10(B), we find the plaintiff’s suit

asserting a quasi-contractual claim of unjust enrichment was not otherwise

authorized against the Department pursuant to La. Rev. Stat. 36:471. La. Const.

art. XII, Sect. 10(B), entitled “Waiver In Other Suits,” provides as follows:

The legislature may authorize other suits against the state, a state
agency, or a political subdivision. A measure authorizing suit shall
waive immunity from suit and liability.

Canal/Claiborne argues that La. Rev. Stat. 36:471, enacted in 1988 under the 1974

Constitution, created the Department of Social Services, the predecessor agency to

the Department of Children and Family Services, as “a body corporate with the

power to sue and be sued.” La. Rev. Stat. 36:471(A).3 Canal/Claiborne maintains

that this statute falls directly within the ambit of Art. XII, Sect. 10(B) and that the

clause “to sue and be sued” found in La. Rev. Stat. 36:471(A) amounts to a general

waiver of immunity from suit and liability without regard to any type of claim.

Whether the power “to sue and be sued” language found in La. Rev. Stat.

36:471(A) constitutes a general waiver of sovereign immunity within the context

2
Although the lower court and the Department have used the term “trespass” to describe the
Department’s alleged occupancy of Canal/Claiborne’s property, our civil law traditions fully
safeguard the rights of owners and possessors of immovable property. MCI Communications
Services, Inc. v. Hagan, 11-1039 (La. 10/25/11), 74 So.3d 1148, 1156 n. 12 (citing 2 A.N.
Yiannopoulos, Louisiana Civil Law Treatise; Property, § 293, p. 579 (4th ed. 2001).
3
By Act No. 877 of 2010, Sect. 3, the legislature directed the Louisiana State Law Institute to
change all references to the Department of Social Services to the Department of Children and
Family Services.
9
of the 1974 Constitution and Art. XII, Sect. 10(B) is a res nova issue in our courts.

We hold, however, that this language without more does not constitute a blanket

waiver of immunity from suit of any kind. The history of sovereign immunity in

Louisiana was well explained in Chamberlain, 624 So.2d at 880-81. We discern

from this history that Louisiana courts have construed the “sue and be sued”

language as granting a waiver of immunity not only from suit but also from

substantive liability. Canal/Claiborne urges that the power “to sue and be sued”

language now operates as a general waiver of immunity from all types of claims,

regardless of the specific provisions in the 1974 Constitution limiting the waiver of

immunity to contract and tort claims.

The 1921 constitutional provision originally vested in the legislature the

discretionary power from time to time to consent to suit. In 1946, the provision

was amended to address the enforcement of judgments. In 1959, this court

construed the provision as it then existed as giving the legislature the power to

waive the traditional sovereign immunity from suit, but not the immunity from

substantive tort liability, effectively reducing the legislature's waiver of immunity

to a mere invitation “to visit the courthouse” to file suit and to be thrown out

shortly thereafter on an exception of no cause of action. See Duree v. Maryland

Casualty Co., 238 La. 166, 114 So.2d 594 (1959); Stephens v. Natchitoches School

Board, 238 La. 388, 115 So.2d 793 (1959). This construction prompted a 1960

constitutional amendment to add the liability language to the 1921 Constitution,

assuring that any waiver of immunity would be both from suit and from liability.

As amended by Act 621 of 1960, Art. III, Sect. 35 of the 1921 Constitution

provided in part as follows:

The Legislature is empowered to waive, by special or general
laws or resolutions, the immunity from suit and from liability of the
state, and of parishes, municipalities, political subdivisions, public
boards, institutions, departments, commissions, districts, corporations,
10
 agencies and authorities and other public or governmental bodies; and
each authorization by the Legislature for suit against the State or other
such public body, heretofore and hereafter enacted or granted, shall be
construed to be and shall be effective and valid for all purposes, as of
and from the date thereof, as a waiver of the defendant's immunity
both from suit and from liability. The Legislature shall, by special or
general laws or resolutions, prescribe the procedural rules, including
rules of venue and service of process, to govern suits against the state
and other public bodies; the procedure in such suits, in the absence of
applicable procedural rules promulgated by the Legislature, to be the
same as in suits between private litigants. No judgment against the
state or any other public body shall be exigible, payable or paid except
out of funds appropriated for payment thereof. …

Commenting on the 1960 amendment to Art. III, Sect. 35 of the 1921

Constitution, this court stated in Hamilton v. City of Shreveport, 247 La. 784, 174

So.2d 529, 530 (1965):

[T]he Legislature of 1960 in adopting the aforementioned
proposed amendment did so with the express purpose of
nullifying the effect of [Duree and Stephens, a pair of]
decisions of this court ... [which held] that whenever the
Legislature authorized suit under Section 35 of Article 3
of the Constitution of 1921, as amended pursuant to Act
No. 385 of 1946, it simply waived the traditional
immunity of the state and its subdivisions from suit and
did not constitute a waiver of the state or its agencies
from liability for the negligence of one of its employees
in the exercise of a governmental function.

In Hamilton, however, the court was faced with the issue of whether the “sue and

be sued” language constituted a waiver of immunity from suit and liability only for

a government entity’s tort actions resulting from its proprietary activities and not

the entity’s actions founded on the tortious conduct of its officers and employees

when functioning in a governmental capacity. The Hamilton court rejected that

contention, declining to limit the waiver of immunity. 247 La. at 792, 174 So.2d at

532. The Hamilton court concluded that each legislative authorization of suit was

to be construed “to be and shall be effective and valid for all purposes . . . a waiver

of the defendant’s immunity from both suit and from liability.” Id. at 532; see

11
also Board of Comm'rs of Port of New Orleans v. Splendour Shipping &

Enterprises Co., 273 So.2d 19, 24-25 (La. 1973).

In Herrin v. Perry, 254 La. 933, 228 So.2d 649, this court applied Hamilton

to find a general waiver of tort liability, holding that the ‘“sue and be sued’

provision in the charter or organic act of any body enumerated in the 1960

amendment to Art. III, Sect. 35 of the 1921 Constitution must be construed as a

general waiver of immunity from suit.” 228 So.2d at 656. The Herrin court thus

rejected the argument of the Department of Highways that the 1960 amendment to

the 1921 Constitution was not intended to cause all prior acts creating

governmental agencies and giving them the authority “to sue and be sued” to be

considered as general waivers of immunity from tort liability. The Herrin court

was not confronted with the scope of the waiver of immunity outside of the tort

context.

In Splendour, supra, decided in 1973 while the constitutional convention

was under way, this court found that in Louisiana sovereign or governmental

immunity was a judicially-created doctrine, which was outmoded and which was

inconsistent with the state’s policy of requiring that state agencies either “act

responsibly, or be subject to answer in court.” 273 So.2d at 26. Thus, even in the

absence of any legislative authority to “sue and be sued,” this court held that state

agencies were not immune from suit in tort, abrogating sovereign immunity in tort

cases. Chamberlain, 624 So.2d at 881.

The 1974 Constitution continued the Splendour court’s broad abrogation of

sovereign immunity in tort, and created a similarly broad waiver of immunity for

suits in contract; however, the 1974 Constitution notably continued the

requirement of legislative pre-authorization for suits other than those in contract or

for injury to person or property. The 1974 Constitution, as this court explained in

12
Chamberlain, now contains in Article XII, Section 10(A) an absolute prohibition

against immunity from suit and liability in contract and tort suits, while Section

10(B) continues the requirement that in other suits a legislative waiver, when

given, must be both from suit and from liability. 624 So.2d at 881 (citing

Hargrave, “Statutory” and “Hortatory” Provisions of the Louisiana Constitution

of 1974, 43 La. L. Rev. 647, 652-53 (1983)). In Chamberlain, we recognized that

Section 10(B), because it continues the legislative consent method for “other

suits,” retains “some vestige of sovereign immunity as a viable doctrine.” 624

So.2d at 882 (citing Burmaster v. Gravity Drainage Dist. No. 2 of Parish of St.

Charles, 602 So.2d 1045 (La. App. 5th Cir.), writ denied, 608 So.2d 167 (La.

1992) (applying Sect. 10(B) to find governmental entity possessed sovereign

immunity in suit not involving “injury or property” where legislative consent had

not been obtained); Two O’Clock Bayou Land Co. v. State of Louisiana, 415 So.2d

990, 992 (La. App. 3rd Cir. 1982) (same)).

The cases relied upon by the plaintiff do not support its assertion that, when

the legislature imbues an agency with the “power to sue and be sued,” the

legislature has intentionally passed a “measure” authorizing all suits against a state

agency, including those other than a claim in contract or for injury to person or

property, within the meaning of La. Const. art. XII, Sect. 10(B). In James v.

Charity Hosp., 398 So.2d 622, 623 (La. App. 1st Cir. 1981), the plaintiffs sought

damages for the wrongful death of their child, filing suit in Iberville Parish in the

Eighteenth Judicial District Court against Charity Hospital of New Orleans and the

unknown maker of a heat lamp, to which Charity Hospital filed an exception of

improper venue. The court interpreted La. Rev. Stat. 46:759, which provides as

follows: “The Charity Hospital at New Orleans may sue and be sued, in all affairs

and actions whatever, before any of the courts of the state.” The plaintiffs

13
contended the phrase “before any court of this state” constituted an exception to

the general rules of venue. Charity Hospital argued the intent of the legislation

was simply to waive the sovereign immunity that had prevented individuals from

suing the hospital. The appellate court found the statute was intended to waive

sovereign immunity rather than constitute an exception to the general venue

provisions. 398 So.2d at 623. Notably, the court was not called upon to determine

the scope of the waiver of immunity in the context of La. Const. art. XII, Sect.

10(B), as the underlying claim was for injury to a person.

Similarly, Willis v. Dept. of Culture, Recreation, and Tourism, 525 So.2d

1162, 1164 (La. App. 2nd Cir. 1988), does not stand for the general waiver

proposition asserted by Canal/Claiborne; indeed, the court’s holding tends to

counter that proposition. In Willis, the plaintiff filed a petitory action against the

Department of Culture, Recreation, and Tourism, State of Louisiana, alleging that

he was the owner of a tract of land in Webster Parish and that the Department had

taken possession of a portion of his land by erecting a fence. The Department filed

an exception of sovereign immunity asserting the State of Louisiana may not be

sued without legislative consent except where the cause of action is in contract or

tort in accordance with La. Const. art. XII, Sect. 10(A). The court of appeal held

that the Department was immune from suit. The court first found the plaintiff’s

suit, despite an allegation of trespass, was a petitory action, rather than a claim in

contract or tort, and thus fell within the classification of “other suits” found in La.

Const. art. XII, Sect. 10(B) requiring legislative authorization prior to institution of

suit. The court rejected the plaintiff’s reliance on the “sue and be sued” language

found in the statute creating the Department of Culture, Recreation and Tourism,

La. Rev. Stat. 36:201. The court noted the legislature did not transfer title to lands

such as lake bottoms to the Department in the legislation creating the Department.

14
Accordingly, the court held that, “[i]n granting the power to sue and be sued, the

legislature only waived the state’s immunity in the areas within the ambit of the

department’s administration … and did not serve as a measure waiving immunity

for the determination of the ownership of lands claimed by the state.” 535 So.2d at

1164.

Canal/Claiborne lastly cites State ex rel. Dept. of Highways v. City of

Pineville, 403 So.2d 49 (La. 1981), arguing that, if a state agency, having the

power to sue and be sued, can assert a claim founded on the theory of unjust

enrichment, or some other form of quasi-contract, then that agency is surely

subject to suit for a quasi-contractual claim. City of Pineville, however, did not

address the intent of the meaning of the “power to sue and be sued” language

within the context of La. Const. art. XII, Sect. 10(B). This court in City of

Pineville, was instead called upon to interpret a provision of the 1921 Constitution,

Art. XIX, Sect. 16, which provided that “[p]rescription shall not run against the

State in any civil matter, unless otherwise provided in this Constitution or

expressly by law.” An identical provision is found in La. Const. art. XII, Sect. 13

(1974). The court had to determine whether the Department of Transportation and

Development, the successor to the Department of Highways, which was

established as a “body politic and corporate” and given the power “to sue and be

sued” in La. Rev. Stats. 48:13 and 48:22, could be characterized as the State of

Louisiana and, thus, could claim constitutional immunity from prescription. This

court held that the “State,” for the purposes of the constitutional immunity from

prescription, does not include a state agency that is a body corporate with the

power to sue and be sued and, when vested with a cause of action, is the sole party

capable of asserting it. 403 So.2d at 52. The court reasoned, “[r]egardless of its

status as an instrumentality of the state, such an agency remains a distinct legal

15
entity subject to claims of prescription except where the law provides otherwise.”

Id. Thus, the court concluded the department could not claim constitutional

immunity. Although the court in City of Pineville did, after finding the agreement

between the city and the department was void ab initio, ultimately acknowledge the

department had plausibly asserted in the alternative a cause of action founded upon

the theory of unjust enrichment, the court was not confronted with the issue of

whether such a claim could be asserted against the department within the meaning

of Art. XII, Sect. 10 of the 1974 Constitution without legislative authorization prior

to the imposition of suit.

Though not cited by the plaintiff, we note the appellate court in St. John the

Baptist Parish v. State ex rel. Dept. of Wildlife and Fisheries, 02-612 (La. App. 5

Cir. 10/16/02), 828 So.2d 1229, 1230-1231, ostensibly held the “sue and be sued

language” found in the Department of Wildlife and Fisheries statutes, La. Rev.

Stat. 36:602(A), functioned as a general waiver of sovereign immunity. However,

the appellate court was called upon only to determine the merits of a declinatory

exception of improper venue filed by the Department, not an exception of lack of

subject matter jurisdiction. In that case, the landowner in 1952 had donated a

servitude to St. John the Baptist Parish for construction of a drainage canal. At the

time, the landowner had leased to various hunting clubs a number of camps,

constructed by the clubs at their expense, that were located wholly or partially

within the parish’s servitude. In 2001, the landowner donated the property to the

Department to be used as a wildlife preserve. After being informed by the

Department that they would have to remove the hunting camp buildings located on

the property pursuant to the Department’s policy of not allowing overnight

camping, the hunting clubs donated the camps to the parish in exchange for the

parish’s agreement to lease the camps back to the clubs, albeit with certain

16
conditions. The parish and the hunting clubs then filed suit in St. John the Baptist

Parish against the Department seeking a declaratory judgment regarding ownership

of the camps and the property, as well as restraining orders preventing the

Department from tearing down the buildings. The Department objected to venue in

the parish, arguing venue was more properly located in Baton Rouge.

The appellate court affirmed the trial court’s denial of the venue exception.

The appellate court first found that La. Rev. Stat. 56:7, which requires a challenge

to the properly established policies of the Department of Wildlife and Fisheries

Commission must be brought in the Commission’s domicile, did not apply at this

point in the litigation because the ownership of the property had not yet been

determined. The appellate court next found La. Code Civ. Proc. art. 80 controlled,

because Art. 80 provides that a dispute over real property, which would include a

personal servitude, is properly brought in the parish where the property is located.

Finally, the appellate court rejected the Department’s argument La. Code Civ.

Proc. art. 80 did not apply because the hunting clubs and the Parish had failed to

obtain authorization from the legislature before filing suit. The court cited the “sue

and be sued” language in La. Rev. Stat. 36:602 to find that sovereign immunity did

not bar the action and that the plaintiffs were not required to seek the approval of

the legislature before filing suit. 828 So.2d at 1233-34.

Notably, the appellate court in St. John the Baptist Parish was not called

upon to determine whether the plaintiffs’ claims fell inside or outside the scope of

the waiver of sovereign immunity in contract or for injury to person or property as

set forth in Art. XII, Sect. 10(A) of the 1974 Constitution. Presumably the

appellate court had determined the claims sounded in contract, as elsewhere the

court noted the operative facts centered on the servitude agreement as well as the

location of the property. 828 So.2d at 1233. The plaintiffs’ claims logically

17
sounded in contract, as ownership of the camps and the property would necessarily

have been determined by the terms of the landowner’s donations to the parish and

the Department. But perhaps more pertinent to our case today, the appellate court

in St. John the Baptist Parish made no determination that the plaintiffs’ claims fell

outside the scope of the waiver in La. Const. art. XII, Sect. 10(A), but the plaintiffs

were otherwise authorized to bring suit against the Department under La. Const.

art. XII, Sect. 10(B) by operation of the “sue and be sued” language in La. Rev.

Stat. 36:602(A). The appellate court was not called upon to determine whether the

language in La. Rev. Stat. 36:602(A) operated as a “measure” permitting suits

against a state agency other than suits in contract or for injury to person or property

within the meaning of La. Const. art. XII, Sect. 10(B). Thus, the appellate court’s

holding in St. John the Baptist Parish cannot be fairly interpreted to broadly hold

that the “sue and be sued” language generally waives sovereign immunity beyond

suit and liability in contract or tort. To the extent that it could, it is now overruled

by today’s decision in the present case.

We hold that the “power to sue and be sued” given a state agency by virtue

of the statute creating that agency does not by itself effect a general waiver of

immunity with regard to all suits within the meaning of Art. XII, Sect. 10(B), not

just suits in contract or for injury to person or property for which immunity has

been waived in Art. XII, Sect. 10(A). The “sue and be sued language,”

deliberately chosen by the legislature, serves an important function: it specifies that

governmental units created under statute may be designated as legal entities

distinct from the State for litigation purposes. See City of Pineville, 403 So.2d at

52. Here, the Department of Children and Family Services performs important

public functions, and La. Rev. Stat. 36:471(A) enables the Department to bring suit

in performance of its duties. Likewise, La. Rev. Stat. 36:471(A) allows the

18
Department to be sued as a separate legal entity for negligence or other tortious

conduct, or for breach of contract, instead of the aggrieved party having to sue the

entire State of Louisiana for redress.

We discern no indication that the legislature, by designating a state agency

as a separate legal body with the power to sue and be sued, also meant to broadly

waive immunity and liability from suit of any kind, particularly in light of the

specifically articulated waiver of immunity for state agencies found in Art. XII,

Sects. 10(A) and (B) in the 1974 Constitution, which retains sovereign immunity

for suits other than those in contract or tort. See Chamberlain, 624 So.2d at 882.

Canal/Claiborne has not directed us, nor have we found, any discussion in the

debates of the drafters during the 1973 Constitutional Convention that would

suggest the “power to sue and be sued” would be equivalent to a “measure”

authorizing suits against the state agency other than a suit founded in contract or

tort. Indeed, the drafters were well aware that, without prior legislative approval,

an individual could not file suit against the state or a state agency, and thus they

were doubtlessly aware of the scope of the waiver of immunity they would

eventually approve in proposing Art. XII, Sect. 10 to the electorate. See, e.g.,

Volume I, Official Journal of the Proceedings of the Constitutional Convention of

1973 of the State of Louisiana, (20th days proceedings), at 397-419 (July 26, 1973).

It is within the province of the legislature to say whether establishing a state

agency as a “body corporate with the power to sue and be sued” demonstrates an

intent to broadly waive immunity from all suits based on any legal theory, as well

as liability, within the meaning of Art. XII, Sect. 10(B). Absent any indication the

legislature so intended, we decline to read the “power to sue and be sued” language

found in La. Rev. Stat. 36:471 as purposefully granting a broad and general waiver

of immunity from suit and liability in all suits, not only those in contract or for

19
injury to a person or property, absent prior authorization from the legislature in a

“measure authorizing suit ….” See La. Const. art. XII, Sect. 10(B).

CONCLUSION

To capsulize, we find the plaintiff’s alleged quasi-contractual claim for

unjust enrichment does not fall within the scope of the waiver of sovereign

immunity from suit and liability in contract or for injury to person or property

found in La. Const. Art. XII, Sect. 10(A). Applying La. Const. art. XII, Sect.

10(B), we also find that, even though the Department of Children and Family

Services was created by La. Rev. Stat. 36:471(A) as a “body corporate with the

power to sue and be sued,” this language by itself does not constitute a “measure

authorizing” waiver of suit and liability in all claims other than suit in contract or

for injury to person or property. Therefore, the plaintiff’s suit asserting a quasi-

contractual claim of unjust enrichment has not otherwise been authorized by the

legislature in a “measure authorizing … immunity from suit and liability.”

Accordingly, we conclude the trial court was without subject matter jurisdiction to

entertain the plaintiff’s claim for enrichment without cause and dismiss that claim

with prejudice.4

REVERSED AND REMANDED TO THE DISTRICT COURT

4
We decline to review the Department’s peremptory exception of prescription. Because the
basis for the trial court’s award was founded to some extent on the plaintiff’s tort claim of
“trespass,” the Department’s exception of prescription is more appropriately heard in that forum
under the circumstances of this case.
20
12/09/14

SUPREME COURT OF LOUISIANA

NO. 2014-C-0664

CANAL/CLAIBORNE, LIMITED

VERSUS

STONEHEDGE DEVELOPMENT, LLC

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIFTH CIRCUIT, PARISH OF JEFFERSON

Weimer, J., concurring in part, dissenting in part.

I agree that the plaintiff’s unjust enrichment claim brought against the State of

Louisiana, Department of Children and Family Services, is a quasi-contractual claim.

That unjust enrichment claim, therefore, is not authorized under La. Const. art. XII,

§ 10(A), which the majority correctly notes waives sovereign immunity only for

claims based on contract or tort. I respectfully disagree, however, with the majority

that the plaintiff’s claim has not been authorized under La. Const. art. XII, § 10(B),

when the legislature established the Department of Children and Family Services, as

“a body corporate with the power to sue and be sued.” La. R.S. 36:471(A).

Under La. Const. art. XII, § 10(B), for “other suits against the state, a state

agency, or a political subdivision,” the legislature “may authorize” such suits by a

“measure ... waiv[ing] immunity from suit and liability.” The legislature’s

designation of the Department of Children and Family Services as having “the power

to sue and be sued” is a clear and unqualified waiver of immunity from suit and

liability for all purposes.

The majority, however, attempts to restrict the “power to sue and be sued”

language of La. R.S. 36:471(A) to only suits based in contract or tort. To impose
such a restriction on what is facially broad language, the majority turns to this court’s

prior opinion in Chamberlain v. State, Dept. of Transp. and Dev’t, 93-472 (La.

9/3/93), 624 So.2d 874. In Chamberlain, the court noted that that Section 10(B),

inasmuch as it requires the legislative consent for liability stemming from “other

suits,” retains “some vestige of sovereign immunity as a viable doctrine.” Id., 624

So.2d at 882. The majority, in the instant case, then traces the history of the

sovereign immunity doctrine, finding that immunity still exists for suits besides tort

or contract suits, and concludes that immunity bars plaintiff’s quasi-contract suit. I

respectfully suggest the majority errs.

In its historical narrative, the majority attempts to limit this court’s decision in

Herrin v. Perry, 254 La. 933, 228 So.2d 649 (1969). In Herrin, this court examined

the effect of statutory language permitting the state Department of Transportation to

“sue and be sued,” and concluded the quoted language constituted a waiver of

sovereign immunity. The Herrin court explained that “the ‘sue and be sued’

provision in the charter or organic act of any body enumerated in the 1960

Constitutional Amendment must be construed as a general waiver of immunity from

suit.” Herrin 228 So.2d at 656. The limitation the court presently places on Herrin

is based on the fact that the “court was not confronted with the scope of the waiver

of immunity outside of the tort context.”

The distinction the majority now draws misses the point. The proper focus is

on the effect of the legislature’s choice to waive immunity when it employs the terms

“sue and be sued.” The alternative to language that waives immunity for any cause

of action, would be to require the legislature to list every conceivable cause of action.

Therefore, rather than accept that the legislature intended “sue and be sued” to cover

every type of suit, the majority apparently reverts to a requirement that the legislature

2
employ “magic words” to specify the type of suit for which sovereign immunity has

been waived. There is a general disfavor in the law to require the use of such “magic

words,” and it is unfitting for this court to foist such an encumbrance upon the

legislature to list every type of suit for which immunity applies when the simple

phrase “any and all suits” plainly suffices. See, e.g., Harrah’s Bossier City Inv. Co.,

LLC v. Bridges, 09-1916, p. 17 (La. 5/11/10), 41 So.3d 438, 450 (ruling, in the

context of tax exemptions established by the legislature: “There are no ‘magic words’

necessary to create an exemption or an exclusion; the determining factor is the effect

of the statute: ‘the words and form used legislatively in granting an exemption are not

important if, in their essence, the Legislature creates an exemption.’”), quoting

Wooden v. Louisiana Tax Commission, (La. 2/20/95), 650 So.2d 1157, 1161.

Also downplayed in the majority’s historical narrative of sovereign immunity

is that this court had concluded before Herrin that “sue and be sued” equates to a

broad legislative waiver of sovereign immunity. That is, the majority cites Hamilton

v. City of Shreveport, 247 La. 784, 174 So.2d 529, 530 (1965), and notes that the

legislature’s use of “sue and be sued” language was at issue. Further, the majority

correctly recites that this court ruled that the “sue and be sued” language was

“effective and valid for all purposes … a waiver of the defendant’s immunity from

both suit and from liability.” (Emphasis added.) However, the majority attempts to

distance itself from the ruling in Hamilton that the waiver was “valid for all

purposes.” Canal/Claiborne, Ltd v. Stonehedge Development, LLC, No. 14-0664,

slip op. at 11 (La. Dec. ___, 2014).

To place distance between the instant case and Hamilton, the majority notes

that Hamilton dealt with a tort suit. At the time Hamilton was decided, however, the

constitution lacked the present waiver found in Section 10(A), expressly waiving

3
immunity in contract and tort. Therefore, the only significant point to be drawn from

Hamilton is not one of limitation, but rather that this court gave the “sue and be

sued” language an expansive meaning: “effective and valid for all purposes.” See

Hamilton, 174 So.2d at 530 (emphasis added).

The majority never explains why the broad “sue and be sued” language, which

must be assumed to have been deliberately chosen by the legislature,1 is insufficient

to serve as a waiver of non-tort/non-contract suits under Section 10(B). Even more

instructive than this court’s ruling in Hamilton are the following principles, which

compel the conclusion that the legislature’s use of “sue and be sued” language

reflects a waiver under Section 10(B).

One of the governing principles is found in the Chamberlain opinion, on

which the majority relies for its historical narrative. In Chamberlain, 624 So.2d at

879, this court explained: “Unlike the federal constitution which grants powers, the

Louisiana constitution, in general, limits powers. Polk v. Edwards, 1993 WL

364714, n.4 (La. 1993) (No. 93-CA-0362) (noting that “state constitutions typically

contain limits on governmental authority rather than grants of power as with the

federal constitution”).” Under this principle, unless restricted by the constitution, the

legislature is free to waive immunity for all causes of action.

Another longstanding principle indicates that we are to look for a restriction

in the constitution by using “the same general rules used in interpreting laws and

written instruments.” East Baton Rouge Parish School Bd. v. Foster, 02-2799, pp.

16-17 (La.6/6/03), 851 So.2d 985, 996, citing Caddo-Shreveport Sales And Use

Tax Commission v. Office of Motor Vehicles, Dept. of Public Safety and

1
See, e.g., Tin, Inc. v. Washington Parish Sheriff’s Office, 12-2056, p. 14 (La. 3/19/13), 112
So.3d 197, 207 (“[W]hen interpreting a statutory provision, we must presume that the Legislature
acts deliberately ….”).

4
Corrections, 97-2233, p. 6 (La. 4/14/98), 710 So.2d 776, 780, and Radiofone, Inc.

v. City of New Orleans, 93-0962, p. 6 (La. 1/14/94), 630 So.2d 694, 698.

Under these principles, this court is tasked with examining Section 10(B) for

indicators that “sue and be sued” is insufficient to waive immunity for

non-tort/non-contract suits. Article XII, § 10(B) provides: “Waiver in Other Suits.

The legislature may authorize other suits against the state, a state agency, or a

political subdivision. A measure authorizing suit shall waive immunity from suit and

liability.”2

Nothing in the language of Article XII, § 10(B) places any restriction on the

legislature’s chosen method to waive liability. Returning to the majority’s historical

narrative, because the constitutional framers drew a distinction between suits for

tort/contract and all other suits, it is reasonable to infer that the legislature, if it had

so chosen, in turn could have drawn a similar distinction when authorizing suits

against the Department of Children and Family Services. As this court long ago

noted, “[t]he members of the Legislature are presumed to know the law.” State ex

rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 147 So. 361, 362

(1933). Therefore, instead of designating the Department as “a body corporate with

the power to sue and be sued” as indicated in La. R.S. 36:471(A), the legislature

2
The language authorizing the legislature to waive immunity is consistent with Article III, § 35 of
the 1921 Constitution as amended by 1960 La. Act 621, which in pertinent part provides:

The Legislature is empowered to waive, by special or general laws or
resolutions, the immunity from suit and from liability of the state, and of parishes,
municipalities, political subdivisions, public boards, institutions, departments,
commissions, districts, corporations, agencies and authorities and other public or
governmental bodies; and each authorization by the Legislature for suit against the
State or other such public body, heretofore and hereafter enacted or granted, shall be
construed to be and shall be effective and valid for all purposes, as of and from the
date thereof, as a waiver of the defendant's immunity both from suit and from
liability.

5
could have designated the Department as “a body corporate with the power to sue and

be sued” in contract or tort.

By presently failing to give effect to the plain and broad designation of the

Department as “a body corporate with the power to sue and be sued,” the majority

effectively perpetuates a flawed policy. That is, the majority is rightly critical of the

line of cases under the former constitution, holding that the legislature’s waiver of

immunity was a “mere invitation ‘to visit the courthouse’ to file suit and to be thrown

out shortly thereafter on an exception of no cause of action. See Duree v. Maryland

Casualty Co., 238 La. 166, 114 So.2d 594 (1959); Stephens v. Natchitoches School

Board, 238 La. 388, 115 So.2d 793 (1959).” Canal/Claiborne, No. 14-0664, slip

op. at 10. The Duree and Stephens cases essentially put litigants in the position of

having a right, but no remedy. Similarly, the majority’s present refusal to recognize

the “sue and be sued” language as a waiver for the plaintiff’s quasi-contractual suit

contravenes the notion that if a state agency enters a private marketplace, the agency

should be held accountable just as a non-governmental entity would be accountable.

Cf. Williams v. State, Dept. of Health and Hospitals, 97-0055, pp. 6-7 (La.

12/2/97), 703 So.2d 579, 583 (commenting on the treatment of sovereign immunity

under the current state constitution, this court explained: “the abrogation of sovereign

immunity necessitates the application of the law of the land equally to the sovereign

and the private litigant.”).

To recap this court’s historical interpretation of the “sue and be sued”

language, this court has already given an expansive meaning to the legislature’s use

of “sue and be sued” for purposes of waiving governmental immunity. There is no

significant difference between the prior constitution, as amended in 1960, and the

current constitution that would result in restricting this expansive meaning.

6
 The majority’s new, restrictive interpretation begs an important question. If,

as the majority holds, the language “sue and be sued” provides limited authority to

a litigant to recover against the state’s Department of Children and Family Services,

is it consistent for “sue and be sued” to nevertheless suffice to authorize the

Department of Children and Family Services to recover against a litigant? Pursuant

to La. R.S. 46:236.1.2, that agency is authorized inter alia to obtain child support

orders, establish paternity, and obtain medical support orders. Each of those actions

is greatly different in character, but none of those actions sounds in contract or tort.

It would seem inconsistent to hold that “sue and be sued” is insufficient to enable the

agency to litigate a wide range of non-tort/non-contract actions, but “sue and be sued”

is not broad enough to waive immunity for non-tort/non-contract actions. The proper

aim of this court is to harmonize statutory provisions, not cast them into conflict or

doubt. State v. Louisiana Land and Exploration Co., 12-0884, p. 9 (La. 1/30/13),

110 So.3d 1038, 1045 (“It is equally well settled under our rules of statutory

construction, where it is possible, courts have a duty in the interpretation of a statute

to adopt a construction which harmonizes and reconciles it with other provisions

dealing with the same subject matter.”).

Reading the phrase “sue and be sued” to mean that the legislature has

authorized and waived immunity for tort, contract, and all other causes of action is

supported by a plain reading of that phrase. That meaning harmonizes the agency’s

statutory duty to file a wide range of non-contract/non-tort suits under La. R.S.

46:236.1.2, with the agency’s obligation to be responsible for its actions in the

marketplace under the “sue and be sued” provision of La. R.S. 36:471(A). When a

cause of action against the agency is not based in contract or tort, the legislature’s

directive that the agency is enabled to “sue and be sued” encourages the agency to act

7
responsibly only if “sue and be sued” is interpreted to waive immunity for

non-tort/non-contract causes of action.

In a related vein, because the decision in St. John the Baptist Parish v. State

ex rel. Dept. of Wildlife and Fisheries, 02-612 (La.App. 5 Cir. 10/16/02), 828 So.2d

1229, 1230-31, can be interpreted to broadly hold “sue and be sued” language

constitutes a general waiver of immunity in an action challenging the Department of

Wildlife and Fisheries’ ability to enforce its camping regulations (an action which is

not grounded in contract or tort), I find that the St. John the Baptist Parish court

ruled properly. Unlike the majority here, I would not overrule any portion of St.

John the Baptist Parish.

In conclusion, I respectfully dissent from the majority’s ruling, inasmuch as

that ruling does not construe the phrase “sue and be sued” as a waiver of immunity

to the plaintiff’s quasi-contractual claims and redefines that phrase, which this court

had previously held was “effective and valid for all purposes,” as a waiver of

sovereign immunity. See Hamilton, supra (emphasis added).

8