NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-276
LASALLE PARISH SCHOOL BOARD, TOWN OF JENA AND TOWN OF OLLA
VERSUS
LOUISIANA MACHINERY COMPANY, LLC
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 37,446 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
OPINION ON REMAND
JOHN E. CONERY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and John E. Conery, Judges.
REVERSED AND REMANDED. Robert R. Rainer Drew M. Talbot Fredrick Mulhearn Rainer Anding Talbot & Mulhearn 8480 Bluebonnet Boulevard, Suite D Baton Rouge, LA 70810 (225) 766-0200 COUNSEL FOR PLAINTIFFS/APPELLEES: Lasalle Parish School Board Town of Olla Town of Jena
Jesse R. Adams, III Andre B. Burvant Kathryn S. Friel Matthew A. Mantle Jones Walker LLP 201 St. Charles Avenue, 51st Floor New Orleans, LA 70170 (504) 582-8000 COUNSEL FOR DEFENDANT/APPELLANT: Louisiana Machinery Company, LLC CONERY, Judge.
This case was initially before this court on an appeal filed on behalf of
Louisiana Machinery Rentals, LLC (“Taxpayer”) seeking to reverse the ruling of
the district court granting partial summary judgment to plaintiffs, LaSalle Parish
School Board and the Towns of Jena and Olla, whose designated sales and use tax
collector is the Concordia Parish School Board (“Collector”). This court affirmed
the ruling of the trial court in favor of the Collector in LaSalle Parish Sch. Bd. v.
Louisiana Machinery Co., LLC, 12-276 (La.App. 3 Cir. 6/6/12), 92 So.3d 1232.
Pursuant to its decision on a writ of certiorari granted January 17, 2014
under Docket No. 12-1567, the Louisiana Supreme Court issued a remand order to
this court “to consider the matter in light of [the supreme court’s] recent opinions
in Washington Parish Sheriff’s Office v. Louisiana Machinery Co., LLC, 13-0583
(La. 10/15/13), [126] So.3d [1273], and Catahoula Parish Sch. Bd., v. Louisiana
Machinery Co., LLC, 12-2504 (La. 10/15/13), [124] So.3d [1065].” LaSalle
Parish Sch. Bd., et al. v. Louisiana Machinery Co., LLC., 12-1567, p. 1 (La.
1/27/14), 130 So.3d 333, 333; LaSalle Parish Sch. Bd., et al. v. Louisiana
Machinery Rentals, LLC., 12-1568, p. 1 (La. 1/17/14), 130 So.3d 333, 333.
In response to the supreme court’s remand, we ordered additional briefing
from the parties and fixed the case for submission on briefs. We received the
requested briefing, but the Collector went beyond the supreme court’s remand
order and argued that the Taxpayer’s initial appeal to this court was untimely
pursuant to La.R.S. 47:337.61(3). In essence, the Collector urged this court to hold
that the district court’s judgment was final, to dismiss the Taxpayer’s appeal, and
to remand this case to the district court for adjudication of the Collector’s
remaining claims. The Collector suggests that this court should decline to follow the supreme
court’s remand instructions and, in support of its position, urges the application of
the “companion cases,” Caldwell Parish Sch. Bd., et al., v. Louisiana Machinery
Co., LLC, 12-1383 consolidated with Tensas Parish Sch. Bd., et al. v. Louisiana
Machinery Co., LLC, et al. 12-1762 (La.1/29/13), 110 So.3d 993, to show that the
appeal taken by the Taxpayer in this case was untimely. The Collector also raised
the issue of lack of jurisdiction due to the untimely filing of the Taxpayer’s appeal
in its briefing to the supreme court.
When the supreme court granted the Taxpayer’s writ application, heard the
case, and remanded this case with specific instructions to consider their opinions in
Washington and Catahoula, it had already issued its opinions in Caldwell and
Tensas. Thus, the supreme court was well aware of its prior rulings and, by its
silence, rejected the Collector’s argument. Barham & Arceneaux v. Kozak, 02-
2325 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, writ denied, 04-930 (La. 6/4/04),
876 So.2d 87. There was no timely application by the Collector for rehearing to
the supreme court. Thus, the supreme court’s ruling remanding this case in light of
Washington and Catahoula is final pursuant to La.Code Civ.P art. 2167.1
Our review on remand is limited to the supreme court’s specific remand
instructions. Stafford’s Heirs v. Renshaw, 33 La.Ann. 443 (La.1881); Farm Credit
Bank of Texas v. Sturgeon, 93-1536 (La.App. 3 Cir. 6/1/94), 640 So.2d 666.
Following the mandate of the supreme court, we must consider the case on
remand in light of Washington and Catahoula. In Catahoula, the supreme court
1 Louisiana Code of Civil Procedure Article 2167(B) states in pertinent part, “A judgment of the supreme court becomes final and definitive when the delay for application for rehearing has expired and no timely application therefor has been made.”
2 affirmed the decision of another panel of this court2 and specifically held that the
mandatory notice requirements of La.R.S. 47:337.51(A), upon which the Collector
based its motion for partial summary judgment, were deficient, and therefore, the
assessments were not final. The supreme court further reasoned, based on its
previous finding that the Collector’s assessments lacked the required finality
pursuant to La.R.S. 47:337.51(A), that “the validity of the notices of assessments
constituted an essential element of the Collector’s claims rather than strictly a
defense asserted by the Companies.” Catahoula, 124 So.3d at 1076. Based on its
holding that the Collector’s assessments were not final, the supreme court
proceeded to “determine whether the Collector is entitled to partial summary
judgments absent reliance on the assessments.” Id. Without a final assessment,
“the Collector was required to support its claims for taxes with evidence.” Id. at
1077. The supreme court stated:
The facts alleged in the Collector’s petitions and attested to by the supporting affidavit were incorrect relative to the adequacy of the notices of assessments and the finality of the assessments, thus they do not constitute a prima facie case establishing the Companies owe the alleged tax amounts. Further, the Collector did not submit any additional documentation or other evidence to prove or support its tax claims. Under these factual circumstances, the Collector failed to prove the substance of its tax claims, and the district court erred in granting the motions for partial summary judgment.
Id.
Finally, the supreme court discussed the timeliness of defenses raised by the
Taxpayer, which are controlled by La.R.S. 47:337.61(2) and “require[] all defenses
to be ‘presented at one time’ and filed ‘prior to the time fixed for the hearing;’
2 Catahoula involved the consolidated cases of Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-443 (La.App. 3 Cir. 10/24/12), 105 So.3d 169, and Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-444 (La.App. 3 Cir. 10/24/12), 105 So.3d 169.
3 otherwise, the court is prohibited from considering the defense.” Id. The supreme
court found that all defenses asserted in connection with a supplemental petition
filed “prior to the scheduled hearing date on the supplemental petitions . . . were
filed timely.” Id.
For the reasons assigned in Catahoula, the supreme court decided
Washington, finding that “revised notice of assessments did not comply with the
mandatory statutory notice provisions of La.R.S. 47:337.51(A) and, therefore, the
assessments were not final. . . .
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-276
LASALLE PARISH SCHOOL BOARD, TOWN OF JENA AND TOWN OF OLLA
VERSUS
LOUISIANA MACHINERY COMPANY, LLC
**********
APPEAL FROM THE TWENTY-EIGHTH JUDICIAL DISTRICT COURT PARISH OF LASALLE, NO. 37,446 HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE
OPINION ON REMAND
JOHN E. CONERY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and John E. Conery, Judges.
REVERSED AND REMANDED. Robert R. Rainer Drew M. Talbot Fredrick Mulhearn Rainer Anding Talbot & Mulhearn 8480 Bluebonnet Boulevard, Suite D Baton Rouge, LA 70810 (225) 766-0200 COUNSEL FOR PLAINTIFFS/APPELLEES: Lasalle Parish School Board Town of Olla Town of Jena
Jesse R. Adams, III Andre B. Burvant Kathryn S. Friel Matthew A. Mantle Jones Walker LLP 201 St. Charles Avenue, 51st Floor New Orleans, LA 70170 (504) 582-8000 COUNSEL FOR DEFENDANT/APPELLANT: Louisiana Machinery Company, LLC CONERY, Judge.
This case was initially before this court on an appeal filed on behalf of
Louisiana Machinery Rentals, LLC (“Taxpayer”) seeking to reverse the ruling of
the district court granting partial summary judgment to plaintiffs, LaSalle Parish
School Board and the Towns of Jena and Olla, whose designated sales and use tax
collector is the Concordia Parish School Board (“Collector”). This court affirmed
the ruling of the trial court in favor of the Collector in LaSalle Parish Sch. Bd. v.
Louisiana Machinery Co., LLC, 12-276 (La.App. 3 Cir. 6/6/12), 92 So.3d 1232.
Pursuant to its decision on a writ of certiorari granted January 17, 2014
under Docket No. 12-1567, the Louisiana Supreme Court issued a remand order to
this court “to consider the matter in light of [the supreme court’s] recent opinions
in Washington Parish Sheriff’s Office v. Louisiana Machinery Co., LLC, 13-0583
(La. 10/15/13), [126] So.3d [1273], and Catahoula Parish Sch. Bd., v. Louisiana
Machinery Co., LLC, 12-2504 (La. 10/15/13), [124] So.3d [1065].” LaSalle
Parish Sch. Bd., et al. v. Louisiana Machinery Co., LLC., 12-1567, p. 1 (La.
1/27/14), 130 So.3d 333, 333; LaSalle Parish Sch. Bd., et al. v. Louisiana
Machinery Rentals, LLC., 12-1568, p. 1 (La. 1/17/14), 130 So.3d 333, 333.
In response to the supreme court’s remand, we ordered additional briefing
from the parties and fixed the case for submission on briefs. We received the
requested briefing, but the Collector went beyond the supreme court’s remand
order and argued that the Taxpayer’s initial appeal to this court was untimely
pursuant to La.R.S. 47:337.61(3). In essence, the Collector urged this court to hold
that the district court’s judgment was final, to dismiss the Taxpayer’s appeal, and
to remand this case to the district court for adjudication of the Collector’s
remaining claims. The Collector suggests that this court should decline to follow the supreme
court’s remand instructions and, in support of its position, urges the application of
the “companion cases,” Caldwell Parish Sch. Bd., et al., v. Louisiana Machinery
Co., LLC, 12-1383 consolidated with Tensas Parish Sch. Bd., et al. v. Louisiana
Machinery Co., LLC, et al. 12-1762 (La.1/29/13), 110 So.3d 993, to show that the
appeal taken by the Taxpayer in this case was untimely. The Collector also raised
the issue of lack of jurisdiction due to the untimely filing of the Taxpayer’s appeal
in its briefing to the supreme court.
When the supreme court granted the Taxpayer’s writ application, heard the
case, and remanded this case with specific instructions to consider their opinions in
Washington and Catahoula, it had already issued its opinions in Caldwell and
Tensas. Thus, the supreme court was well aware of its prior rulings and, by its
silence, rejected the Collector’s argument. Barham & Arceneaux v. Kozak, 02-
2325 (La.App. 1 Cir. 3/12/04), 874 So.2d 228, writ denied, 04-930 (La. 6/4/04),
876 So.2d 87. There was no timely application by the Collector for rehearing to
the supreme court. Thus, the supreme court’s ruling remanding this case in light of
Washington and Catahoula is final pursuant to La.Code Civ.P art. 2167.1
Our review on remand is limited to the supreme court’s specific remand
instructions. Stafford’s Heirs v. Renshaw, 33 La.Ann. 443 (La.1881); Farm Credit
Bank of Texas v. Sturgeon, 93-1536 (La.App. 3 Cir. 6/1/94), 640 So.2d 666.
Following the mandate of the supreme court, we must consider the case on
remand in light of Washington and Catahoula. In Catahoula, the supreme court
1 Louisiana Code of Civil Procedure Article 2167(B) states in pertinent part, “A judgment of the supreme court becomes final and definitive when the delay for application for rehearing has expired and no timely application therefor has been made.”
2 affirmed the decision of another panel of this court2 and specifically held that the
mandatory notice requirements of La.R.S. 47:337.51(A), upon which the Collector
based its motion for partial summary judgment, were deficient, and therefore, the
assessments were not final. The supreme court further reasoned, based on its
previous finding that the Collector’s assessments lacked the required finality
pursuant to La.R.S. 47:337.51(A), that “the validity of the notices of assessments
constituted an essential element of the Collector’s claims rather than strictly a
defense asserted by the Companies.” Catahoula, 124 So.3d at 1076. Based on its
holding that the Collector’s assessments were not final, the supreme court
proceeded to “determine whether the Collector is entitled to partial summary
judgments absent reliance on the assessments.” Id. Without a final assessment,
“the Collector was required to support its claims for taxes with evidence.” Id. at
1077. The supreme court stated:
The facts alleged in the Collector’s petitions and attested to by the supporting affidavit were incorrect relative to the adequacy of the notices of assessments and the finality of the assessments, thus they do not constitute a prima facie case establishing the Companies owe the alleged tax amounts. Further, the Collector did not submit any additional documentation or other evidence to prove or support its tax claims. Under these factual circumstances, the Collector failed to prove the substance of its tax claims, and the district court erred in granting the motions for partial summary judgment.
Id.
Finally, the supreme court discussed the timeliness of defenses raised by the
Taxpayer, which are controlled by La.R.S. 47:337.61(2) and “require[] all defenses
to be ‘presented at one time’ and filed ‘prior to the time fixed for the hearing;’
2 Catahoula involved the consolidated cases of Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-443 (La.App. 3 Cir. 10/24/12), 105 So.3d 169, and Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-444 (La.App. 3 Cir. 10/24/12), 105 So.3d 169.
3 otherwise, the court is prohibited from considering the defense.” Id. The supreme
court found that all defenses asserted in connection with a supplemental petition
filed “prior to the scheduled hearing date on the supplemental petitions . . . were
filed timely.” Id.
For the reasons assigned in Catahoula, the supreme court decided
Washington, finding that “revised notice of assessments did not comply with the
mandatory statutory notice provisions of La.R.S. 47:337.51(A) and, therefore, the
assessments were not final. . . . [and] that the record does not support the
Collector’s motions for partial summary judgment absent reliance on the
assessments.” Washington, 126 So.3d at 1278.
In this case, the procedural posture and the Collector’s submissions to the
trial court as the basis for the motion for summary judgment are identical to those
in Washington and Catahoula. As in Washington and Catahoula, the notice here
lacked the required finality pursuant to La.R.S. 47:337.51(A), and therefore, it
must be determined whether the Collector in this case is entitled to partial
summary judgment absent reliance on the Collector’s revised notice of
assessments. As in Catahoula, the assessments in this case are not final due to
defective notice. In order to prevail on its partial motion for summary judgment,
the Collector would have had to support its claim for taxes with evidence.
Accordingly, after due consideration of the supreme court’s rulings in Washington
and Catahoula and a review of the facts and procedural posture of the case before
us on remand, we find that a reversal and remand to the district court is required
for such a determination. We therefore reverse the trial court’s grant of partial
summary judgment in favor of the LaSalle Parish School Board, Town of Jena, and
Town of Olla. We remand the matter to the trial court for further proceedings
4 consistent with the supreme court’s decisions. Costs of this appeal are assessed
equally to the LaSalle Parish School Board, Town of Jena, and Town of Olla
pursuant to La.R.S. 13:5112.
REVERSED AND REMANDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—
Courts of Appeal, Rule 2-16.3.