Opinion
2012 CA 1237
08-09-2013
JAZZ CASINO COMPANY, L.L.C. v. CYNTHIA BRIDGES, SECRETARY, LOUISIANA DEPARTMENT OF REVENUE
Christopher J. Dicharry Jason R. Brown Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, Jazz Casino Company, L.L.C. Antonio Ferachi David Michael Hansen Donald Bowman Miranda Y. Conner Monica Doss Washington Robert Frederick Mulhearn, Jr. Shone T. Florence B. Saenz William E. Little Brian DeJean Leticia J. Mabry Jack DeLisle Barry Kelly Debra D. Morris Baton Rouge, Louisiana Attorneys for Defendant/Appellant, Secretary of the Department of Revenue, State of Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Nineteenth Judicial District Court,
In and for the Parish of East Baton Rouge,
State of Louisiana
Civil Docket No. 585,287, Section 24
The Honorable R. Michael Caldwell, Judge Presiding
Christopher J. Dicharry
Jason R. Brown
Baton Rouge, Louisiana
Attorneys for Plaintiff/Appellee,
Jazz Casino Company, L.L.C.
Antonio Ferachi
David Michael Hansen
Donald Bowman
Miranda Y. Conner
Monica Doss Washington
Robert Frederick Mulhearn, Jr.
Shone T. Pierre
Florence B. Saenz
William E. Little
Brian DeJean
Leticia J. Mabry
Jack DeLisle
Barry Kelly
Debra D. Morris
Baton Rouge, Louisiana
Attorneys for Defendant/Appellant,
Secretary of the Department of
Revenue, State of Louisiana
BEFORE: PARRO, WELCH, AND KLINE, JJ.
Hon. William F. Kline, Jr., retired, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.
KLINE , J.
Defendant/Appellant, Cynthia Bridges, Secretary, Louisiana Department of Revenue ("Department"), appeals a final judgment of the district court, acting in its capacity as the court of judicial review, that sustained a peremptory exception raising the objection of prescription in favor of Plaintiff/Appellee, Jazz Casino Company, L.L.C. ("JCC"). Additionally, we note that JCC has filed, in this court, a motion to dismiss the appeal and an exception of lack of subject matter jurisdiction. For the following reasons, we deny that motion to dismiss and overrule that exception, and affirm the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
This matter began as an appeal by JCC to the Louisiana Board of Tax Appeals, from a ruling by the Department of Revenue, which denied a tax refund. JCC operates the land-based casino, Harrah's, in New Orleans, Louisiana. JCC contracted with various New Orleans hotels for the rental of hotel rooms for use as complimentary or discounted rooms to its casino patrons. The duration of each contract was for a three-month period and required minimum 30-day payment periods, regardless of whether or not the rooms were occupied. The contract provided that JCC would guarantee payment to the hotels for a specific number of rooms for the duration of the contract. A statutory tax is levied on all sales of services at the rate of two percent of the amounts paid or charged, and it applies to hotel rooms.
See La. R.S. 47:301 (14)(a) and 302(C)(1).
On August 19, 2004, JCC filed a claim for refund of overpaid state hotel occupancy taxes with the Department. Louisiana Administrative Code 61:I.4301(C)Hotel(b) formerly provided that a guest who engages his lodging and pays his bills on a monthly basis and who remains as a guest for two consecutive months is considered to be a "permanent guest." The Department's Revenue Ruling No. 03-007 provides that when a hotel establishes that a guest is permanent under the criteria of the Louisiana Administrative Code, the sales tax is not due, beginning with the third month of the guest's occupancy of the hotel room. An exemption is allowed for the first two months of the guest's stay if there is a binding and enforceable contract between the hotel and its guest, entered into at the beginning of the occupancy. The hotel rooms continue to be non-taxable as long as there is no break in the guest's payments for the occupancy of the room and the payment is made no more than once a month. JCC based its claim for tax refund on this exemption, as explained by the Department in a purported "Private Letter Ruling" ("PLR") that was made to JCC in January 2004, as well as prior Department rulings and regulations and applicable law. The Department's purported PLR was favorable to JCC and indicated that the tax exemption sought by JCC, regarding permanent guests, applied to rooms that are paid for and occupied at the direction of businesses and other persons, as defined by the tax law. The efficacy of the PLR is in question.
The Department denied JCC's claim for tax refund in June 2006. Thereafter, in August 2006, JCC filed a petition for review of the Department's decision with the Board of Tax Appeals ("BTA"). Following a hearing, the BTA rendered judgment on November 10, 2009, denying JCC's claim for tax reimbursement. The BTA denied the claim on the basis that JCC was not a "permanent guest" and that its patrons using the hotel rooms were transient guests.
JCC appealed the judgment of the BTA to the Nineteenth Judicial District Court in December 2009 by filing a petition for judicial review. Following the hearing on JCC's administrative appeal, the district court remanded this matter to the BTA for further consideration on two specific issues: (i) whether the Department's January 26, 2004 response to JCC's request for a PLR was, in fact, a PLR binding the Department to its determination and pronouncement that JCC qualified as a "permanent guest" of the hotels from which it rented rooms during the relevant taxable period; and (ii) whether net-30 day payment terms in a guest's contract with a hotel meet the requirement of former LAC 61:I.4301(C)(Hotel)(b) that guests pay their bills monthly in order to qualify as "permanent guests" of a hotel. In the judgment regarding the remanded issues, signed December 15, 2011, the BTA ruled in favor of the Department on the PLR issue, finding that the Department's response was not a binding ruling, but ruled in favor of JCC on the "permanent guest" issue, holding that JCC qualified as a "permanent guest" under these circumstances.
At the district court, the Department filed a declinatory exception raising the objection of improper venue, which it later withdrew. The Department later filed a motion to dismiss and the declinatory exception raising the objection of lack of subject matter jurisdiction. The district court denied the Department's motion to dismiss and overruled the exception.
JCC filed a motion to reconsider the district court's remand. The district court later denied the motion to reconsider.
On January 13, 2012, JCC filed a notice of appeal, informing the BTA of its intent to appeal the decision. Within thirty days of the BTA's decision, JCC filed a supplemental and amended petition for judicial review in the district court regarding the part of the BTA's decision that found the letter to JCC was not a binding PLR. On February 9, 2012, the Department filed an amended answer to JCC's amended petition for judicial review, and within that answer sought "partial reversal" of the BTA's decision on the "permanent guest" issue.
Thereafter, in April 2012, JCC filed a peremptory exception raising the objections of no cause of action and prescription. Following a hearing on the exception, the district court overruled JCC's objection of no cause of action, but sustained the objection of prescription in a judgment dated May 30, 2012. The district court issued oral reasons and, citing Clark v. State of Louisiana, 02-1936 (La. App. 1 Cir. 1/28/04), 873 So. 2d 32, writ denied, 04-0452 (La. 4/23/04), 870 So. 2d 300, concluded there was a cause of action, but that the Department had failed to comply with Louisiana Revised Statutes 47:1434, the statute providing a "thirty calendar day" limit for seeking review of a decision or judgment of the BTA. The district court found that the statute provided the exclusive means of appealing the BTA's decision and that the Department had failed to comply with those provisions. JCC's appeal, seeking a reversal of the BTA's determination on remand of the PLR issue, has been set for hearing at a later date.
Louisiana Revised Statutes 47:1434 provides the thirty day time limitation for filing of a petition for judicial review after a decision or judgment of the BTA has been rendered and signed.
The Department now appeals to this court the May 30, 2012 judgment of the district court, sustaining JCC's exception of prescription. JCC has filed a motion to dismiss the Department's appeal, asserting the declinatory exception raising the objection of lack of subject matter jurisdiction, averring (i) the ruling from which the Department appeals is interlocutory in nature; and (ii) the district court's grant of the exception of prescription was not designated as a final, appealable judgment, pursuant to Louisiana Code of Civil Procedure article 1915(B).
DISCUSSION
JCC's Motion to Dismiss for Lack of Subject Matter Jurisdiction
JCC seeks dismissal of the Department's purported "appeal," arguing that this court lacks subject matter jurisdiction over the judgment of the district court on judicial review of this administrative matter. JCC argues that the district court's May 30, 2012 judgment, which sustained JCC's peremptory exception raising the objection of prescription, is interlocutory in nature and is not subject to an immediate appeal because it was not designated as a final, appealable judgment. We disagree.
A final judgment of the district court can be appealed. La. C.C.P. art. 2083. A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that only partially determines the merits of the action is a valid, partial final judgment, and therefore, appealable only if authorized by Louisiana Code of Civil Procedure article 1915. Rhodes v. Lewis, 01-1989 (La. 5/14/02), 817 So. 2d 64, 66.
The judgment appealed from in this case is a partial final judgment because it dismissed the Department's purported appeal of the BTA's December 15, 2011 decision in its entirety. The judgment is immediately appealable without the need for a certification or designation as a partial final judgment if it falls under Louisiana Code of Civil Procedure article 1915(A). Article 1915(A) provides, in pertinent part:
When a court renders a partial judgment as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1).
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors. (Emphasis added.)
As previously noted, JCC filed a petition for judicial review of the decision of the BTA. The Department, in its answer to JCC's petition for review, sought reversal of a separate portion of the BTA's decision. The judgment at issue in the present appeal is even narrower: it sustained an exception of prescription filed by JCC which dismissed the Department's purported appeal of the BTA's December 15, 2011 ruling. That judgment of the district court dismissed the Department's "suit" for judicial review of the BTA's decision, leaving the Department with no further claims to pursue. As the judgment of the district court entirely dismissed all claims of the Department, it is a final judgment immediately appealable under Louisiana Code of Civil Procedure article 1915(A). See Motorola, Inc. v. Associated Indem. Corp., 02-0716 (La. App. 1 Cir. 4/30/03), 867 So. 2d 715, 721; see also Riehm v. State Farm Mutual Automobile Ins. Co., 07-651 (La.App. 5 Cir. 1/22/08), 977 So. 2d 1045, n.1, writ denied, 08-0387 (La. 4/18/08), 978 So. 2d 350. Therefore, we deny JCC's motion to dismiss the Department's appeal and we hereby overrule the declinatory exception raising the objection of lack of subject matter jurisdiction. Appeals of Decisions of the BTA
Louisiana Revised Statutes 47:1434 governs appeals of decisions of the BTA regarding the redetermination of assessment or for determination of overpayment of taxes. The statute provides, in pertinent part:
After a decision or judgment of the board, the collector or the taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court in accordance with the provisions hereinafter set out, for review of the said decision or judgment of the board. The party filing such petition shall before the filing of same, either at open hearing or by motion, notify the board of his intention to file such petition for review. Provided that when the board has found any tax to be due, a taxpayer must, when giving the notice of intention to file a petition for review, post bond, with surety approved by the board conditioned upon the payment of the tax as finally determined, together with any interest, additional amounts or additions to the tax provided for by law, payable to the collector, in an amount not to exceed one and one-half times the said tax, interest, and penalty found to be due in said decision or judgment of the board, and the posting of such bond shall be a condition precedent to the filing of any petition for review in any district court.
Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court, setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment. (Emphasis added.)
The Department avers the Louisiana Code of Civil Procedure articles dealing with appellate procedure do not apply where there is a specific law that deals with an issue, but argues that Section 1434 does not address answers to appeals of decisions of the BTA. The Department argues that Section 1434 is not the exclusive means of appealing decisions of the BTA, and that it is unreasonable to interpret the statute in such a manner as to prohibit answers to appeals. We disagree.
In this case, the BTA's decision, on remand from the district court, was rendered and signed on December 15, 2011. After the determination of the BTA on the remanded issues, JCC timely filed an appeal to the district court on January 13, 2012, which sought reversal by the district court of the BTA's determination that the January 26, 2004 response of the Department was not a PLR. JCC gave the BTA notice of its intention to appeal and filed its petition for judicial review with the district court within thirty days of the BTA's decision.
JCC amended its earlier-filed petition for judicial review of the BTA's November 10. 2009 decision that denied JCC's claim for tax reimbursement.
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The Department, not having appealed the BTA's December 15, 2011 decision, filed a pleading in the form of an answer on February 9, 2012, seeking a partial reversal of the BTA's December 15, 2011 decision. JCC then filed its exception of prescription, averring the Department failed to timely file its appeal, pursuant to Section 1434. The district court sustained JCC's exception.
Because the Department's February 9, 2012 request for review was not filed within "thirty calendar days" of the BTA's December 15, 2011 decision, as required by Section 1434, it was not timely filed, and that portion of the BTA's decision became res judicata. See Save Our Wetlands, Inc. v. Department of Environmental Quality, 00-2809 (La. App. 1 Cir. 2/15/02), 812 So. 2d 746, 749, writ denied, 02-1230 (La. 8/30/02), 823 So. 2d 953. Therefore, we hold that the district court, on judicial review of this administrative matter, properly granted JCC's exception of prescription.
DECREE
For the foregoing reasons, JCC's motion, in this court, to dismiss the Department's appeal is denied, and JCC's declinatory exception raising the objection of lack of subject matter jurisdiction, on the basis that the partial judgment was not designated as final, is overruled. We affirm the judgment of the district court sustaining JCC's peremptory exception raising the objection of prescription. All costs of this appeal, in the amount $5,195.00, are cast to Defendant/Appellant, Cynthia Bridges, Secretary, Louisiana Department of Revenue.
MOTION TO DISMISS APPEAL DENIED AND EXCEPTION OF LACK OF JURISDICTION OVER THE SUBJECT MATTER OVERRULED; JUDGMENT AFFIRMED.
NOT DESIGNATED FOR PUBLICATION
2012 CA 1237
JAZZ CASINO COMPANY, L.L.C.
V.
CYNTHIA BRIDGES, SECRETARY,
LOUISIANA DEPARTMENT OF REVENUE
BEFORE: PARRO, WELCH, AND KLINE, JJ.
PARRO, J., dissenting.
I must respectfully disagree with the majority in this case, as I believe Jazz Casino Company, L.L.C.'s motion to dismiss this appeal on the grounds of lack of subject matter jurisdiction should be granted and the appeal dismissed. To explain this conclusion, a brief summary of the procedural background of this matter is in order.
Jazz Casino Company, L.L.C. (JCC) filed an administrative claim for a refund of overpaid state hotel occupancy taxes with the Department of Revenue (Department). JCC claimed that under LAC 61:I.4301(C)Hotel(b), it qualified as a "permanent guest" in various New Orleans hotels, and that, according to a binding Private Letter Ruling (PLR) from the Department, it was thus entitled to an exemption from occupancy taxes under the Department's Revenue Ruling No. 03-007. The Department denied its claim, and Jazz appealed to the Louisiana Board of Tax Appeals (BTA). The BTA affirmed the Department's ruling, and JCC filed a petition for judicial review in the 19th JDC. The court remanded the matter to the BTA, which reconsidered and concluded that JCC did qualify as a "permanent guest," but that the PLR was not binding on the Department.
JCC amended its petition for judicial review in the 19th JDC, seeking reversal of the part of the BTA's decision that found that the PLR written to it by the Department was not binding on the Department. The Department filed an amended answer, seeking reversal of the part of the BTA's ruling that found JCC qualified as a "permanent guest." JCC then filed a peremptory exception raising the objections of no cause of action and prescription as to the Department's amended answer. The district court denied the exception of no cause of action, but sustained the exception of prescription, thus dismissing the Department's appeal on the "permanent guest" issue. JCC's amended petition for judicial review, regarding the part of the BTA's decision that found the Department's PLR was not binding, remains pending in the 19th JDC.
The majority opinion concludes that, because the court's judgment dismissed the Department's appeal on the "permanent guest" issue as prescribed, it dismissed the "suit" as to less than all of the parties, and thus qualifies as a final judgment under LSA-C.C.P. art. 1915(A)(1). I disagree with this analysis. First, I note that, technically, there is no "suit" by the Department involved in this case. This is an administrative claim that was adjudicated by an administrative body and appealed first to the BTA and then to the 19th JDC on a petition for judicial review. Second, the district court's judgment did not dismiss the "suit" as to less than all of the parties; it addressed only one party's defense. The "suit" is ongoing as to a portion of the BTA's decision, and the Department remains in the "suit" as the defendant to that claim concerning the PLR.
Therefore, the district court judgment, which sustained "an exception in part, as to one or more but less than all of the claims, demands, issues, or theories," does "not constitute a final judgment unless ... designated as a final judgment by the court after an express determination that there is no just reason for delay." LSA-C.C.P. art. 1915(B)(1). There was no such designation of the district court's judgment in this case. Without such a determination and designation, any order or decision that "adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal." LSA-C.C.P. art. 1915(B)(2). The judgment appealed in this case was a partial judgment that did not adjudicate all of the claims or all of the rights and liabilities of either party, both of whom remain in the suit. Therefore, the judgment was interlocutory and had to be designated as final in order to be appealed. See LSA-C.C.P. arts. 1911 and 1915(B)(2). Since LSA-C.C.P. arts. 1911 and 2083(A) provide that only a final judgment is appealable, this court has no subject matter jurisdiction over this appeal.
Accordingly, I would grant JCC's motion to dismiss the Department's appeal for lack of subject matter jurisdiction.