STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
W)? C V 3— c6t') NUMBER 2020 CA 1106
THE SUCCESSION OF ANTHONY CIERVO, JR.
VERSUS
KIMBERLY L. ROBINSON, SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA
Judgment Rendered: APR 19- 2021 -
Appealed from the Louisiana Board of Tax Appeals State of Louisiana Case No. 10832D
The Honorable Judge Tony Graphia (Ret.), Chairman Presiding Cade R. Cole, and Frances " Jay" Lobrano, Board Members
x xx x xx9c cx
William A. Neilson, Sr. Counsel for Plaintiff/Appellee,
Kyle A. Spaulding The Succession of Anthony Ciervo, Jr. New Orleans, LA
Kevin M. Wheeler Perry R. Staub, Jr. Donald J. Miester, Jr. New Orleans, LA
Miranda Y. Scroggins Counsel for Defendant/Appellant, Antonio C. Ferachi Kimberly L. Robinson, Secretary, Wendy Ramnarine Department of Revenue, State of Brandea P. Averett Louisiana Debra Morris Brian DeJean Daryl Causey Baton Rouge, LA
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ. WHIPPLE, C.J.
This matter is before us on appeal by Kimberly Robinson, in her capacity as
the Secretary of the Department of Revenue for the State of Louisiana ( LDR),
challenging a judgment of the Board of Tax Appeals ( BTA) granting a motion for
entry of judgment filed by the Succession of Anthony Ciervo, Jr. (" the
Succession"). For the reasons that follow, we affirm.
PROCEDURAL HISTORY
This matter was previously appealed to this court in Succession of Ciervo v.
Robinson, 2019- 0140 ( La. App. ls` Cir. 12/ 12/ 19), 291 So. 3d 1063.' In the prior
opinion ( Succession of Ciervo 1), this court reversed the September 11, 2018
judgment of the BTA, which dismissed the Succession' s Petition for
Redetermination of Assessment, and remanded the matter to the BTA " for further
proceedings in accordance with this opinion." Succession of Ciervo, 291 So. 3d at
Following remand to the BTA, the Succession filed a motion for entry of
judgment, " in accordance with the [ prior] decision" of this court, seeking the
dismissal and abatement of the taxes, penalties, and interest in the Notices of
Assessments that had issued to the Succession. In response, the LDR contended
that the Succession was not entitled to such relief as this court' s opinion in
Succession of Ciervo 1 was not a final judgment and the purpose of the remand
was to allow for a new trial of the case to " resolve... unanswered questions." The
Succession countered that Succession of Ciervo 1 reversed the BTA judgment
because this court found that the LDR did not meet its burden of proof and, further,
that the remand order did not provide a basis for another evidentiary hearing and
trial on the merits.
For a more detailed recitation of the facts of this matter, see this court' s previous opinion in Succession of Ciervo, 291 So. 3d 1. 063.
2 In response to the remand order, the BTA held a hearing on March 11, 2020,
wherein the parties presented argument regarding the purpose of the remand to the
BTA. At the conclusion of the hearing, the BTA found that the remand was
ordered for the purpose of " enter[ ing] a judgment granting the petition and
vacating the assessments." The BTA thus signed a judgment on March 12, 2020,
in accordance with this .finding.
From this judgment, the LDR appeals, contending that the BTA erred in
granting the Succession' s Motion for Entry of Judgment.
DISCUSSION
The LDR appeals the judgment of the BTA pursuant to LSA-R.S.
47: 1434( A), which, as pertinent to this appeal, provided that within thirty days of
the signing of a decision or judgment of the BTA, any party may file a motion with
the BTA for review of the decision or judgment by the appropriate appellate court.2
Judicial review of a decision of the BTA is rendered upon the record as made
before the BTA and is limited to facts on the record and questions of law. The
BTA' s findings of fact should be accepted where there is substantial evidence in
the record to support them and should not be set aside unless they are manifestly
erroneous in view of the evidence on the entire record. R& B Falcon Drilling
USA, Inc. v. Secretary, Dept. of Revenue, 2009- 0256 ( La. App. 15` Cir. 1/ 11/ 10),
31 So. 3d 1083, 1085. However, with regard to questions of law, the judgment of
the BTA should be affirmed if the BTA has correctly applied the law and has
adhered to the correct procedural standards. However, if the BTA' s judgment is
not in accordance with law, it may be reversed or modified, with or without
remanding the case. Bannister Properties, Inc. v. State, 2018- 0030, 2018- 0031,
2The version of LSA-R.S. 47: 14' WA) applied herein is subsequent to its revision by La Acts 2020, La. No. 278 § 1, effective July 1, 2020. 3 2018- 0032, 2018- 0033 ( La. App. 1St Cir. 11/ 2/ 18), 265 So. 3d 778, 785, writ
denied, 2019- 0025 ( La. 3/ 6/ 19), 266 So. 3d 902.
Pursuant to LSA-C.C. P. art. 2164, courts of appeal have the power to
remand a case for the introduction of additional evidence if grave injustice might
result from failure to do so. Such a remand is warranted only when the new
evidence is likely to affect the outcome of the case, and the power to remand on
this basis should be exercised sparingly. Whether a particular case is remanded is a
matter over which the court has much discretion and is governed by the particular
facts and circumstances in each case. Cottonport Bank v. Garrett, 2012- 0688 ( La.
App. 1St Cir. 12/ 21/ 12), 111 So. 3d 431, 436- 37, writ denied, 2013- 0165 ( La.
3/ 1/ 13), 108 So. 3d 1. 182. However, a case ordinarily will not be remanded to
allow a party to produce evidence which was available in the first instance. Our
Lady of the Lake Hosp Inc. v. Carboline Co., 632 So. 2d 339, 343 ( La. App. 1St
Cir. 1993), writs denied, 94- 0287 ( La. 3/ 25/ 94), 635 So. 2d 228 and 94- 0753 ( La.
5/ 6/ 94), 637 So. 2d 1052.
On appeal, the LDR argues that the BTA committed reversible legal error in
granting the Succession' s motion for entry of judgment and refusing to allow the
LDR to present evidence on remand and essentially misconstruing the purpose of
the remand ordered in Succession of Ciervo 1. The LDR avers that this court
remanded the case for the introduction of evidence that Succession of Ciervo 1
noted was not in the record. The LDR maintains that it " was never afforded the
opportunity to put on any evidence to support its case" at the May 8, 2018 hearing
when the BTA granted the Succession' s Motion in Limine and excluded any
evidence of fraud because it was not affirmatively pled. The LDR argues that on
remand, it should have been allowed to present its evidence on fraud and other
issues, as the judgment of this court was not final. Specifically, the LDR argues
19 that "[ h] ad this court intended to issue a final definitive judgment, ... it could have
done so...."
The Succession maintains that the sole issue in this matter was prescription,
and that when this court reversed the original judgment, this court ruled that the
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
W)? C V 3— c6t') NUMBER 2020 CA 1106
THE SUCCESSION OF ANTHONY CIERVO, JR.
VERSUS
KIMBERLY L. ROBINSON, SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA
Judgment Rendered: APR 19- 2021 -
Appealed from the Louisiana Board of Tax Appeals State of Louisiana Case No. 10832D
The Honorable Judge Tony Graphia (Ret.), Chairman Presiding Cade R. Cole, and Frances " Jay" Lobrano, Board Members
x xx x xx9c cx
William A. Neilson, Sr. Counsel for Plaintiff/Appellee,
Kyle A. Spaulding The Succession of Anthony Ciervo, Jr. New Orleans, LA
Kevin M. Wheeler Perry R. Staub, Jr. Donald J. Miester, Jr. New Orleans, LA
Miranda Y. Scroggins Counsel for Defendant/Appellant, Antonio C. Ferachi Kimberly L. Robinson, Secretary, Wendy Ramnarine Department of Revenue, State of Brandea P. Averett Louisiana Debra Morris Brian DeJean Daryl Causey Baton Rouge, LA
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ. WHIPPLE, C.J.
This matter is before us on appeal by Kimberly Robinson, in her capacity as
the Secretary of the Department of Revenue for the State of Louisiana ( LDR),
challenging a judgment of the Board of Tax Appeals ( BTA) granting a motion for
entry of judgment filed by the Succession of Anthony Ciervo, Jr. (" the
Succession"). For the reasons that follow, we affirm.
PROCEDURAL HISTORY
This matter was previously appealed to this court in Succession of Ciervo v.
Robinson, 2019- 0140 ( La. App. ls` Cir. 12/ 12/ 19), 291 So. 3d 1063.' In the prior
opinion ( Succession of Ciervo 1), this court reversed the September 11, 2018
judgment of the BTA, which dismissed the Succession' s Petition for
Redetermination of Assessment, and remanded the matter to the BTA " for further
proceedings in accordance with this opinion." Succession of Ciervo, 291 So. 3d at
Following remand to the BTA, the Succession filed a motion for entry of
judgment, " in accordance with the [ prior] decision" of this court, seeking the
dismissal and abatement of the taxes, penalties, and interest in the Notices of
Assessments that had issued to the Succession. In response, the LDR contended
that the Succession was not entitled to such relief as this court' s opinion in
Succession of Ciervo 1 was not a final judgment and the purpose of the remand
was to allow for a new trial of the case to " resolve... unanswered questions." The
Succession countered that Succession of Ciervo 1 reversed the BTA judgment
because this court found that the LDR did not meet its burden of proof and, further,
that the remand order did not provide a basis for another evidentiary hearing and
trial on the merits.
For a more detailed recitation of the facts of this matter, see this court' s previous opinion in Succession of Ciervo, 291 So. 3d 1. 063.
2 In response to the remand order, the BTA held a hearing on March 11, 2020,
wherein the parties presented argument regarding the purpose of the remand to the
BTA. At the conclusion of the hearing, the BTA found that the remand was
ordered for the purpose of " enter[ ing] a judgment granting the petition and
vacating the assessments." The BTA thus signed a judgment on March 12, 2020,
in accordance with this .finding.
From this judgment, the LDR appeals, contending that the BTA erred in
granting the Succession' s Motion for Entry of Judgment.
DISCUSSION
The LDR appeals the judgment of the BTA pursuant to LSA-R.S.
47: 1434( A), which, as pertinent to this appeal, provided that within thirty days of
the signing of a decision or judgment of the BTA, any party may file a motion with
the BTA for review of the decision or judgment by the appropriate appellate court.2
Judicial review of a decision of the BTA is rendered upon the record as made
before the BTA and is limited to facts on the record and questions of law. The
BTA' s findings of fact should be accepted where there is substantial evidence in
the record to support them and should not be set aside unless they are manifestly
erroneous in view of the evidence on the entire record. R& B Falcon Drilling
USA, Inc. v. Secretary, Dept. of Revenue, 2009- 0256 ( La. App. 15` Cir. 1/ 11/ 10),
31 So. 3d 1083, 1085. However, with regard to questions of law, the judgment of
the BTA should be affirmed if the BTA has correctly applied the law and has
adhered to the correct procedural standards. However, if the BTA' s judgment is
not in accordance with law, it may be reversed or modified, with or without
remanding the case. Bannister Properties, Inc. v. State, 2018- 0030, 2018- 0031,
2The version of LSA-R.S. 47: 14' WA) applied herein is subsequent to its revision by La Acts 2020, La. No. 278 § 1, effective July 1, 2020. 3 2018- 0032, 2018- 0033 ( La. App. 1St Cir. 11/ 2/ 18), 265 So. 3d 778, 785, writ
denied, 2019- 0025 ( La. 3/ 6/ 19), 266 So. 3d 902.
Pursuant to LSA-C.C. P. art. 2164, courts of appeal have the power to
remand a case for the introduction of additional evidence if grave injustice might
result from failure to do so. Such a remand is warranted only when the new
evidence is likely to affect the outcome of the case, and the power to remand on
this basis should be exercised sparingly. Whether a particular case is remanded is a
matter over which the court has much discretion and is governed by the particular
facts and circumstances in each case. Cottonport Bank v. Garrett, 2012- 0688 ( La.
App. 1St Cir. 12/ 21/ 12), 111 So. 3d 431, 436- 37, writ denied, 2013- 0165 ( La.
3/ 1/ 13), 108 So. 3d 1. 182. However, a case ordinarily will not be remanded to
allow a party to produce evidence which was available in the first instance. Our
Lady of the Lake Hosp Inc. v. Carboline Co., 632 So. 2d 339, 343 ( La. App. 1St
Cir. 1993), writs denied, 94- 0287 ( La. 3/ 25/ 94), 635 So. 2d 228 and 94- 0753 ( La.
5/ 6/ 94), 637 So. 2d 1052.
On appeal, the LDR argues that the BTA committed reversible legal error in
granting the Succession' s motion for entry of judgment and refusing to allow the
LDR to present evidence on remand and essentially misconstruing the purpose of
the remand ordered in Succession of Ciervo 1. The LDR avers that this court
remanded the case for the introduction of evidence that Succession of Ciervo 1
noted was not in the record. The LDR maintains that it " was never afforded the
opportunity to put on any evidence to support its case" at the May 8, 2018 hearing
when the BTA granted the Succession' s Motion in Limine and excluded any
evidence of fraud because it was not affirmatively pled. The LDR argues that on
remand, it should have been allowed to present its evidence on fraud and other
issues, as the judgment of this court was not final. Specifically, the LDR argues
19 that "[ h] ad this court intended to issue a final definitive judgment, ... it could have
done so...."
The Succession maintains that the sole issue in this matter was prescription,
and that when this court reversed the original judgment, this court ruled that the
LDR did not satisfy its burden of proof at the hearing. The Succession maintains
that the purpose of the remand was solely to grant the relief the Succession prayed
for in its petition, namely, to enter judgment in its favor setting aside the
assessments. The Succession further notes that in the prior appeal, the Succession
appealed the BTA' s 2018 judgment, but the LDR did not answer the appeal or file
a cross- appeal regarding any of the rulings from the trial court, including the
rulings that precluded the LDR from presenting evidence of fraud or calling
witnesses in the prior proceeding. Thus, the Succession argues, the LDR is
precluded from now challenging the rulings of the BTA that were made before the
original appeal and arguing that the LDR was not given an opportunity to present
evidence at the hearing. We agree.
The issue presented by this appeal is a narrow one, namely, whether the
BTA correctly entered judgment in favor of the Succession, considering this
court' s ruling and remand order in Succession of Ciervo 1. On review of the
record and the prior opinion, we find nothing in the prior opinion of this court
which suggests that the remand was for the purpose of introducing additional
evidence into the record. While the LDR argues that it " was never afforded the
opportunity to put on any evidence to support its case" due to the BTA' s ruling on
Succession' s motions in limine filed before the 2018 hearing, we note that the
proper procedural vehicle to contest an interlocutory judgment is by application for
supervisory writ filed within thirty days of the interlocutory judgment. See LSA-
C. C. P. art. 2201; Matter of Succession of Porche, 2016- 0538 ( La. App. 1St Cir.
2/ 17/ 17), 213 So. 3d 401, 406, n.2. Moreover, the LDR' s witnesses were excluded
5 by the BTA as a result of the LDR' s failure to timely disclose its witnesses, a
sanction that is permitted under LSA- C. C. P. art 1551( C) for failure to obey a
pretrial order. See Robertson v. Lafayette Ins. Co., 2011- 0975 ( La. App. 0 Cir.
2/ 8/ 12), 85 So. 3d 186, 189- 90 ( finding the trial court did not abuse its discretion in
disallowing plaintiffs witnesses for failure to file a witness list in accordance with
the pretrial order); see also LAC 69. I. 317( B).
In Succession of Ciervo 1, this court specifically found manifest error in the
BTA' s conclusion that prescription was suspended by the filing of false returns
with the intent to evade taxes. Thus, this court reversed the judgment dismissing
the Succession' s petition, and " remand[ ed the] matter to the BTA for further
proceedings in accordance with this opinion." In doing so, this court specifically
noted that the LDR failed to carry its burden of proof of fraudulent intent by clear
and convincing evidence. Succession of Ciervo, 291 So. 3d at 1080.
In deciding the merits of the instant appeal, we rely on the plain words of
this court and note that nowhere in the opinion did this court instruct the BTA to
hear additional evidence, nor did this court state that the remand was for the
purpose of hearing or allowing additional evidence on matters for which the LDR
failed to meet its burden of proof. Cf. Favrot v. Chappuis, 86 So. 492, 493 ( La.
1920) ("[ T] he ends of justice will best be subserved by remanding the case for
further evidence."); Succession of Pop v. Inheritance Tax Collector, 87 So. 508,
509 ( La. 1920) ("[ T] he lower court was directed to proceed with the case ` in
accordance with the views herein expressed.'... This court passed finally upon all
the issues, and remanded the case only for the doing of whatever else remained to
be done in the case after all the said issues had been thus settled."); Elchin e r v.
Lacroix, 189 So. 572, 575 ( La. 1939) (" We must remand the case, therefore, in
order that the plaintiff may offer evidence on the hearing of the motion for a new
trial...."); Bridges v. Offshore Drilling Co., 2010- 2214 ( La. App. 11t Cir. 7/ 8/ 11), 69 So. 3d 738, 748 ("[ W] e are unable to determine whether the Board' s factual
findings were reasonably supported by the record ( or manifestly erroneous) or
whether the Board' s ruling was in accordance with law. Therefore, we remand this
matter to the Board for a determination of this issue.")
Accordingly, we find the BTA correctly declined to re -open the matter for
additional evidence by the LDR. Thus, we find no error on the part of the BTA in
granting the Succession' s Motion for Entry of Judgment in its favor or in ordering
the abatement in full of the specified taxes, interest, penalties and charges for the
specified years and amounts associated with the Notices of Assessments.
This assignment of error lacks merit.
CONCLUSION
Based on the above and foregoing reasons, the March 12, 2020 judgment of
the Board of Tax Appeals in favor of the Succession of Anthony Ciervo, Jr. and
against the State of Louisiana, Department of Revenue, is hereby affirmed. Costs
of this appeal in the amount of $2, 336. 00 are assessed to the State of Louisiana,
Department of Revenue.
AFFIRMED.