Opinion
2022 CA 0250 2022 CA 0251 2022 CA 0252 2022 CA 0253 2022 CA 0254
09-16-2022
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC v. ROBERT J. "BOBBY" CROWE, SHERIFF AND EX OFFICIO TAX COLLECTOR, WASHINGTON PARISH AMERISOURCEBERGEN DRUG CORPORATION AND BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC v. ROBERT J. "BOBBY" CROWE, SHERIFF AND EX OFFICIO TAX COLLECTOR, WASHINGTON PARISH BIO-MEDICAL APPPLICATIONS OF LOUISIANA, LLC v. ROBERT J. "BOBBY" CROWE, SHERIFF AND EX OFFICIO TAX COLLECTOR, WASHINGTON PARISH BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC v. ROBERT J. "BOBBY" CROWE, SHERIFF AND EX OFFICIO TAX COLLECTOR, WASHINGTON PARISH BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC v. ROBERT J. "BOBBY" CROWE, SHERIFF AND EX OFFICIO TAX COLLECTOR, WASHINGTON PARISH
Matthew A. Mantle Jesse R. Adams III Andre B. Burvant New Orleans, LA Counsel for Plaintiff/Appellant Bio -Medical Applications of Louisiana, LLC Margaret H. Kern Covington, LA Counsel for Defendant/Appellee Robert J. Bobby Crowe, Sheriff and Ex Officio Tax Collector, Washington Parish Drew M. Talbot Robert R. Rainer Baton Rouge, LA Russell J. Stutes Lake Charles, LA Patrick M. Amedee Thibodaux, LA Counsel for Defendant/Appellee Randy Country Seal, Sheriff and Ex Officio Tax Collector, Washington Parish
Appealed from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana Suit Numbers 100538 c/w 100570 c/wl00693 c/w 101171 c/w 100828 c/w 101171 Honorable Richard A. Swartz, Presiding
Matthew A. Mantle Jesse R. Adams III Andre B. Burvant New Orleans, LA Counsel for Plaintiff/Appellant Bio -Medical Applications of Louisiana, LLC
Margaret H. Kern Covington, LA Counsel for Defendant/Appellee Robert J." Bobby" Crowe, Sheriff and Ex Officio Tax Collector, Washington Parish
Drew M. Talbot Robert R. Rainer Baton Rouge, LA Russell J. Stutes Lake Charles, LA Patrick M. Amedee Thibodaux, LA Counsel for Defendant/Appellee Randy" Country" Seal, Sheriff and Ex Officio Tax Collector, Washington Parish
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
In this suit for refund of taxes paid under protest, Bio-Medical Applications of Louisiana, LLC (Bio-Medical), appeals from a district court judgment granting summary judgment in favor of defendant, Robert J. "Bobby" Crowe, Sheriff and Ex Officio Tax Collector for Washington Parish (Tax Collector), and dismissing BioMedical's Petition for Refund of Tax Paid Under Protest with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Bio-Medical operates a dialysis facility in Washington Parish. In conjunction therewith, Bio-Medical purchases and administers certain prescription drugs to patients suffering from end-stage renal disease (ESRD). On March 17, 2010, BioMedical filed a Petition for Refund of Taxes Paid Under Protest under docket number 100538 claiming that it had erroneously been paying sales tax with respect to its purchase of the prescription drugs during the month of January 2010. BioMedical asserted that the purchases are excluded from sales tax pursuant to La. R.S. 47:301 (10)(u) and La. R.S. 47:301(10)(a)(ii) as well as exempt from sales tax pursuant to La. R.S. 47:337.9(F) to the extent that the drugs are administered to Medicare patients treated at its Washington Parish dialysis facility. Therefore, BioMedical asserted that it was entitled to a refund for the sales taxes it paid on these prescription drugs administered to its Medicare patients.
Bio-Medical also filed several other refund suits under docket numbers 100570, 100693,100828, and 101171. These refund claims were consolidated in the district court by order dated October 28,2019.
In response, the Tax Collector filed two Petitions for Declaratory Judgment under docket numbers 100392 and 100393, seeking a declaration that Bio-Medical was not entitled to a refund for the tax period as alleged. Bio-Medical answered and reconvened against the Tax Collector, seeking a judgment declaring its rights and liabilities with respect to the tax exclusions set forth in La. R.S. 47:301(10)(u) and La. R.S. 47:301(10)(a)(ii), the refund provision contained in La. R.S. 47:315.3, and the tax exemption set forth in La. R.S. 47:337.9(F).
Thereafter, on March 28,2011, Bio-Medical and the Tax Collector, along with four other specified taxpaying entities and tax collectors for various other parishes, entered into an Agreement to Transfer and Consolidate, Agreement to Abide and Escrow Agreement (Agreement to Abide) regarding the pending refund claims and suits, declaratory judgment suits, and pending suits to recover taxes paid under protest in all of the subject parishes. The stated intent of the parties to the agreement was that "all fact and legal issues be resolved, in one court at one time for considerations of judicial economy and efficiency, in all of the suits to minimize costs to the respective parties...." The purpose of the agreement was "to allow the Consolidated Court to reach a resolution of the merits of the Core Legal Issue in an expedited manner" and the parties agreed that "each will be bound by the final non-appealable judgment regarding the Core Legal Issue." The "Core Legal Issue" was defined as "whether the transactions at issue are excluded or exempted from sales and use tax under the relevant and applicable statutes, ordinances and regulations."
Pursuant to the terms of the agreement, the declaratory judgment suits were tried on May 2, 2013, by way of cross motions for summary judgment. On September 9, 2013, the district court rendered judgment in favor of the Tax Collector, declaring that Bio-Medical was not entitled to an exclusion under La. R.S. 47:301 (10)(u), an exemption under La. R.S. 47:337.9(F), or a refund under La. R.S. 47:315.3 as to sales taxes that were charged by drug companies to and collected from Bio-Medical and remitted to the Tax Collector on sales of prescription drugs by the drug company to Bio-Medical for use at its dialysis facility in Washington Parish during the period of January 1, 2006, through October 31, 2009. The district court further ordered that Bio-Medical was not entitled to a refund under La. R.S. 47:337.77 and ordered that Bio-Medical's reconventional demand for refund pursuant to La. R.S. 47:315.3 be dismissed with prejudice.
Bio-Medical appealed the district court's judgment, and in Crowe v, BioMedical Applications, LLC, 14-0917, p. 26 (La.App. 1st Cir. 6/3/16), 208 So.3d 473, 491, this court affirmed the district court's judgment. On rehearing before a five-judge panel, this court maintained its original June 3, 2016 opinion. Crowe v. Bio-Medical Application of Louisiana, LLC, 14-0917, p. 1 (La.App. 1st Cir. 2/17/17), 241 So.3d 328 (on rehearing)(per curiam), writ denied, 17-0502 (La. 5/12/17), 219 So.3d 1106.
Thereafter, on February 10, 2021, the Tax Collector filed a motion for summary judgment in the instant refund suit, seeking: (1) enforcement of the Agreement to Abide and dismissal of the refund petition filed on behalf of BioMedical with prejudice; (2) an order that the taxes paid by Bio-Medical held in escrow for January 2010 through May 2017 shall be immediately disbursed to the appropriate taxing bodies; and (3) an order that the taxes paid by Bio-Medical in escrow for June 2017 through October 2020 shall be immediately disbursed to the appropriate taxing bodies.
The motion was filed by Randy "Country" Seal as successor to Robert J. "Bobby" Crowe.
Bio-Medical filed a cross-motion for summary judgment based on its belief that this court's plurality opinion in Crowe was actually in favor of Bio-Medical on the Core Legal Issue and sought a judgment declaring: (1) that the Agreement to Abide provides that per the common intent of the parties, the Core Legal Issue is whether Bio-Medical's purchases of prescription drugs that are administered to its Medicare patients at its dialysis facilities are excluded and/or exempt from sales tax; (2) finding that the majority of this court actually ruled in favor of Bio-Medical on the Core Legal Issue; (3) ordering enforcement of the Agreement to Abide in favor of Bio-Medical on the Core Legal Issue; (4) ordering the Tax Collector to reimburse Bio-Medical all costs as provided by law; and (5) granting all other general and equitable relief.
Following a June 29, 2021 hearing, the district court signed a judgment granting summary judgment in favor of the Tax Collector, dismissing with prejudice Bio-Medical's Petition for Refund of Tax Paid Under Protest and ordering that the taxes paid under protest by Bio-Medical for the months January 2010 through May 2017, presently held in escrow by the Tax Collector shall be disbursed by the Tax Collector to the appropriate taxing bodies. The district court denied the Tax Collector's requested relief regarding the taxes paid by Bio-Medical subsequent to May 2017 as outside the scope of the pleadings. The district court further denied the motion for summary judgment filed by Bio-Medical.
Bio-Medical now appeals from the district court's judgment.
DISCUSSION
Motion Summary Judgment
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.
The Code of Civil Procedure places the burden of proof on the party filing a motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover can meet its burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. See La. C.C.P. art. 966(A)(3).
Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1); Babin v. Winn-Dixie Louisiana, Inc., 000078, p. 4 (La. 6/30/00), 764 So.2d 37, 39; Jenkins v. Hernandez, 19-0874, p. 4 (La.App. 1st Cir. 6/3/20), 305 So.3d 365, 371, writ denied, 20-00835 (La. 10/20/20), 303 So.3d 315. The moving party must only point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1); Mercadel v. State Through Department of Public Safety and Corrections, 18-0415 (La.App. 1st Cir. 5/15/19) (unpublished), 2019 WL 2234404 *3. The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to its opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, Comments-2015, comment (j). If the non-moving party fails to produce sufficient factual support in its opposition which proves the existence of a genuine issue of material fact, Article 966(D)(1) mandates the granting of the motion for summary judgment. Babin, 00-0078 at p. 4, 764 So.2d at 40; Jenkins, 19-0874 atp. 5, 305 So.3d at 371.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the district court's determination of whether summary judgment is appropriate. Succession of Hickman v. State Through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La.App. 1st Cir. 4/12/17), 217 So.3d 1240, 1244.
Agreement to Abide and this Court's Prior Opinion
In support of his motion for summary judgment, the Tax Collector filed a copy of the Agreement to Abide. As previously noted, the Agreement to Abide consolidated the pending refund claims and suits, declaratory judgment suits, and pending suits to recover taxes paid under protest in all of the subject parishes, including the subject refund claims. The plain language of the Agreement to Abide, entered into by Bio-Medical and the Tax Collector, among various other parties, states that it is the intent of the parties to the agreement that "all fact and legal issues be resolved, in one court at one time for considerations of judicial economy and efficiency, in all of the suits to minimize costs to the respective parties...." The stated purpose of the agreement is "to allow the Consolidated Court to reach a resolution of the merits of the Core Legal Issue in an expedited manner" and the parties agreed that "each will be bound by the final non-appealable judgment regarding the Core Legal Issue." The "Core Legal Issue" is defined as "whether the transactions at issue are excluded or exempted from sales and use tax under the relevant and applicable statutes, ordinances and regulations." The transactions at issue are Bio-Medical's purchase from a drug company of prescription drugs used in the treatment of ESRD in its Washington Parish dialysis facility during the tax period at issue.
Pursuant to the terms of the agreement, the declaratory judgment suits filed by Crowe proceeded to trial by way of cross motions for summary judgment. In Crowe, this court affirmed the district court's judgment, finding that Bio-Medical was not entitled to a sales tax exclusion under La. R.S. 47:30I(10)(u), a sales tax exemption under La. R.S. 47:337.9(F), or a sales tax refund under La. R.S. 47:315.3 for the drug purchases at issue. Crowe, 14-0917 at p. 27, 208 So.3d at 491. On rehearing, this court maintained its original opinion. Crowe, 14-0917 at p. 1, 241 So.3d at 328.
Bio-Medical now contends that the district court erred in its ruling that the final judgment in Crowe mandates dismissal of Bio-Medical's petition(s) in the instant case. From our review of the record, we find Bio-Medical's argument to be without merit.
The language in the Agreement to Abide is clear and unambiguous, and the parties do not dispute its application regarding the determination of the Core Legal Issue in the instant case. Furthermore, the opinion of this court, whether it is by a unanimous decision or by plurality, is that Bio-Medical was not entitled to a sales tax exclusion, exemption, or refund under the cited statutory provisions for the drug purchases at issue. Because this court's opinion is now final as to the Core Legal Issue contemplated and defined in the Agreement to Abide, and the parties agreed to be bound by any final, non-appealable judgment as to that issue, we find that the district court was correct in granting summary judgment in favor of the Tax Collector, dismissing with prejudice Bio-Medical's Petition for Refund of Tax Paid Under Protest, and ordering that the taxes paid under protest for the months of January 2010 through May 2017 be disbursed by the Tax Collector to the appropriate taxing bodies, and in denying summary judgment filed on behalf of Bio-Medical.
CONCLUSION
For the foregoing reasons, we affirm the June 29,2021 judgment of the district court. All costs of this appeal are assessed to Bio-Medical Applications of Louisiana, LLC.
AFFIRMED.