Opinion
NUMBER 2015 CA 1865
06-03-2016
PROMYSE PROSTHETIC-ORTHOTIC GROUP, INC. v. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF ECONOMIC DEVELOPMENT AND STEPHEN MORET, SECRETARY OF THE DEPARTMENT OF ECONOMIC DEVELOPMENT
Brandon Black Baton Rouge, LA and Rosalind Jones Lewis John Dies Jefferson Read Houston, TX Attorneys for Appellant Plaintiff - Promyse Prosthetic-Orthotic Group, Inc. Andrée Matherne Cullens Baton Rouge, LA Attorney for Appellee Defendant - State of Louisiana through the Department of Economic Development
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 632258 Honorable William A. Morvant, Judge Brandon Black
Baton Rouge, LA
and
Rosalind Jones Lewis
John Dies
Jefferson Read
Houston, TX Attorneys for Appellant
Plaintiff - Promyse Prosthetic-Orthotic
Group, Inc. Andrée Matherne Cullens
Baton Rouge, LA Attorney for Appellee
Defendant - State of Louisiana through the
Department of Economic Development BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The plaintiff/appellant, Promyse Prosthetic-Orthotic Group, Inc. ("Promyse"), appeals a district court judgment sustaining peremptory exceptions of lack of subject matter jurisdiction and no cause of action filed by the defendants/appellees, State of Louisiana, through the Department of Economic Development ("LED"), and Stephen Moret in his (former) capacity as Secretary. For reasons that follow, we reverse in part and affirm in part the judgment of the district court and remand the matter for further proceedings in keeping with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
Louisiana Revised Statutes 47:6015 establishes a tax credit (referred to herein as the "Louisiana Research Credit") to encourage new and continuing efforts by the private sector to conduct research and development activities within this state. La. R.S. 47:6015(A). Applications for Louisiana Research Credits are administered by the defendant, LED. The plaintiff, Promyse, is a Louisiana business, with less than fifty employees, which designs and develops orthotics and prosthetics. Promyse applied for and received tax credits from the LED under La. R.S. 47:6015 for the 2006 to 2009 tax years. Additionally, from 2005 to 2011, Promyse applied for and received from the Internal Revenue Service ("IRS") similar tax credits as provided for under 26 U.S.C. § 41. As discussed further below, the criteria for determining whether a credit is granted under La. R.S. 47:6015 tracks the elements set forth in the federal statute, 26 U.S.C. § 41.
The instant matter arises out of the LED's denial of Promyse's applications for Louisiana Research Credits for the 2010 and 2011 tax years. As it had done in previous years, Promyse submitted its applications for the 2010 and 2011 tax years; however, in both instances, Promyse was sent a letter by the LED notifying it that its application had been denied. The denial letters provided general information supporting the denial.
Promyse maintains that the 2010 and 2011 applications filed with the LED complied with the statutory application requirements found in La. R.S. 47:6015, including 26 U.S.C. § 41; therefore, the LED was required to approve its applications. Following LED's denial of its 2010 application, Promyse requested an administrative hearing from the Division of Administrative Law; however, Promyse's request was denied on the basis that the agency did not consider appeals regarding actions taken by the LED, and Promyse was directed to contact the LED regarding its appeal rights. After the denial of its 2011 application for Louisiana Research Credits, Promyse resubmitted its 2010 and 2011 applications, which were again denied by the LED in January of 2014. In its denial letter, the LED asserted that it was unable to determine that the described activities in the applications met the definition of "Qualified research expenses" under 26 U.S.C. § 41(b) as required by La. R.S. 47:6015. It is undisputed that no hearing was held by the LED regarding Promyse's original 2010 and 2011 applications, or resubmitted application.
In an effort to obtain review of the denial of its 2010 and 2011 applications, Promyse filed suit against the defendants in the Nineteenth Judicial District Court on August 1, 2014. Promyse's original petition sought a declaratory judgment declaring that its 2010 and 2011 applications had met the statutory requirements for claiming Louisiana Research Credits under La. R.S. 47:6015, and that the defendants had violated Promyse's due process rights in violation of La. Const. art. 1, § 2. Further, Promyse sought a writ of mandamus commanding the defendants to provide Promyse with certification letters for 2010 and 2011 tax years. Finally, Promyse sought payment of all administrative fees, court costs, and attorney fees associated with the presentation of its claims.
LED filed several exceptions to the petition, including an exception of improper cumulation and requested that Promyse's mandamus action be dismissed on the grounds that the declaratory and mandamus actions involved different forms of a procedure and cannot be cumulated under La. C.C.P. art. 462(2). In response to the LED's exceptions, Promyse filed an unopposed motion for leave of court to file an amended petition, which was filed on March 4, 2015.
The amended petition omits Promyse's earlier request for a writ of mandamus. The amended petition claims that Promyse's activities met the qualifications for the conduct of qualified research as defined under 26 U.S.C. § 41(d), and, thus, the requirements under La. R.S. 47:6015. Promyse's amended petition asserts that based on its meeting the requirements of La. R.S. 47:6015(B)(2), the LED was required to approve the 2010 and 2011 applications. In support, Promyse alleges its federal applications for similar tax credits for the years in question had been approved, and that an IRS audit of Promyse's 2005 to 2008 federal applications found Promyse's activities 100% compliant.
Promyse's amended petition also alleges that the LED's denial was arbitrary; non-compliant with La. R.S. 47:6015; failed to offer sufficient guidance regarding its reasoning and analysis in the denial of the credits, failed to consider documentation offered by Promyse, including the IRS's examination findings supporting the occurrence of qualified research activities and qualified research and development expenses for the years at issue; and failed to meet with or interview witnesses made available by Promyse. The amended petition claims that the LED, without statutory authority, applied qualification requirements not found in the applicable version of La. R.S. 47:6015, but, instead, applied requirements found in the 2013 legislative amendment to La. R.S. 47:6015, which was not applicable to the applications submitted herein.
The amended petition asserts that because La. R.S. 47:6015 specifically provided that said credits shall be issued if the applicant meets the qualifications set forth in La. R.S. 47:6015, Promyse has a property interest in the Louisiana Research Credits claimed for the 2010 and 2011 tax years. Promyse's amended petition maintains that the lack of a hearing and administrative remedies for the review of the denial of its claims for Louisiana Research Credits constitutes a denial of procedural due process, and said denial results in the district court having original jurisdiction to hear the matter through an ordinary proceeding and to render a decision.
Promyse's amended petition prays that after a full evidentiary and de novo review of the record, the district court declare that: (1) Promyse is entitled to procedural due process under the law; and (2) Promyse's 2010 and 2011 applications to LED met the requirements of 26 U.S.C. § 41(d) and La. R.S. 47:6015, thus, Promyse is entitled to the full value of the credits sought in the 2010 and 2011 applications. Promyse also prayed for a judgment awarding it the full monetary value of the Louisiana Research Credits for the 2010 and 2011 tax years, in the amounts of $353,928.00 and $345,699.00, respectively. Finally, Promyse seeks attorney fees, administrative costs, and court costs associated with the action, if provided by law.
The defendants countered Promyse's amended petition with peremptory exceptions of no cause of action and lack of subject matter jurisdiction. The defendants averred that Promyse failed to assert a cause of action of deprivation of procedural due process because Promyse does not possess a "vested property right" in the applied for tax credits until they are granted. The defendants also asserted that Promyse had no cause of action for attorney fees. Regarding subject matter jurisdiction, LED averred that the district court had no appellate or original jurisdiction to declare Promyse's activities met all of the statutory requirements to receive Louisiana Research Tax Credits for the 2010 and 2011 tax years, or to award Promyse a judgment for full monetary value of said credits.
A hearing on the defendants exceptions was held on July 6, 2015. The district court sustained the defendants' peremptory exceptions of no cause of action and no subject matter jurisdiction and dismissed Promyse's action without prejudice in a judgment signed July 29, 2015.
In its oral reasons for judgment, the district court found that the determination of both exceptions turned on the determination of whether Promyse had a vested property right. Noting the discretion granted to the LED in La. R.S. 47:6015(B)(4) to approve or disapprove the applications for Louisiana Research Credits, the district court found that Promyse did not have a justifiable expectation that the tax credit would be granted until the credit was actually approved; therefore, Promyse did not have a property right sufficient to trigger the protections of due process.
Louisiana Revised Statutes 47:6015 was amended by 2015 La. Acts, No. 412, § 2, and the substance of La. R.S. 47:6015(B)(4) is currently contained in La. R.S. 47:6015(B)(5).
Next, the district court determined that because Promyse did not have a property interest in the credits prior to approval, there is no basis for the district court to find either a deprivation of constitutional rights or that the LED exceeded its constitutional authority, and, thus no basis for the district court to exercise original jurisdiction. In reaching this conclusion, the district court relied upon the holding of Boeing Company v. Louisiana Department of Economic Development, 94-0971 (La. App. 1st Cir. 6/23/95), 657 So.2d 652. The district court additionally found that it did not have appellate jurisdiction because LED was not required to hold a hearing to adjudicate the matter under La. R.S. 47:6015; thus, there is no basis for an administrative appeal, or judicial review by the district court under the Administrative Procedures Act ("APA").
From this judgment, Promyse appeals. During the pendency of this appeal, Promyse filed an unopposed motion to supplement the appellate record with a copy of its opposition to the defendants' exceptions filed at the district court. We grant Promyse's motion to supplement the record herein.
STANDARD OF REVIEW
The reviewing court conducts a de novo review of a trial court's ruling sustaining an exception of no cause of action, because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. Adams v. Owens-Corning Fiberglas Corporation, 2004-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 976, writ denied, 2005-2501 (La. 4/17/06), 926 So.2d 514. Similarly, the determination of whether a district court has subject matter jurisdiction over a case is subject to a de novo review. In re D.C.M., 2013-0085 (La. App. 1st Cir. 6/11/13), 170 So.3d 165, 169, writ denied, 2013-1669 (La. 7/17/13), 118 So.3d 1102.
LAW AND DISCUSSION
I. No Cause of Action
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to Promyse's right to judicially assert the action against the defendants. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La. 1993). The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1st Cir. 2/11/05), 906 So.2d 455, 457. Furthermore, the facts shown in any annexed documents must also be accepted as true. See B & C Electric, Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La. App. 1st Cir. 5/9/03), 849 So.2d 616, 619; Cardinale v. Stanga, 2001-1443 (La. App. 1st Cir. 9/27/02), 835 So.2d 576, 578. No evidence may be introduced to support or controvert the exception raising the objection of no cause of action. La. C.C.P. art. 931.
In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Livingston Parish Sewer Dist. No. 2 v. Millers Mutual Fire Insurance Company of Texas, 99-1728 (La. App. 1st Cir. 9/22/00), 767 So.2d 949, 952, writ denied, 2000-2887 (La. 12/8/00), 776 So.2d 1175.
Here, we first consider Promyse's assertion that the district court erred in finding that the amended petition failed to state a cause of action under procedural due process and/or for attorney fees and administrative costs.
a. Procedural Due Process
The Fourteenth Amendment to the United States Constitution provides, in pertinent part, "nor shall any State deprive any person of life, liberty, or property, without due process of law ...." Similarly, Article I, § 2 of the Louisiana Constitution provides that "[n]o person shall be deprived of life, liberty, or property, except by due process of law." When protected interests are implicated, the right to some kind of prior hearing is paramount. Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The determination of a procedural due process case requires application of a two-part test: first, whether a party has been deprived of a protected "life," "liberty," or "property" interest, i.e., whether the party had an interest protected by the constitution; and second, if so, whether the procedures in place comport with due process. Denham Springs Economic Development District v. All Taxpayers, Property Owners & Citizens of Denham Springs Economic Development District, 2005-2274 (La. 10/17/06), 945 So.2d 665, 681.
Property interests are not created by the constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and support claims of entitlement to those benefits. Roth, 408 U.S. at 577, 92 S.Ct. at 2709. To have a property interest protected by due process, a person must clearly have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it rather than a unilateral expectation of it. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; American International Gaming Association, Inc. v. Louisiana Riverboat Gaming Commission, 2000-2864 (La. App. 1st Cir. 9/11/02), 838 So.2d 5, 16.
The determination of whether Promyse's amended petition states a cause of action for procedural due process turns on whether it can establish that it has a property right in its 2010 and 2011 tax credit applications. During the times relevant to the instant matter, La. R.S. 47:6015 was amended by the legislature three times: (1) 2009 (2009 La. Acts, No. 477, § 1, eff. July 9, 2009); (2) 2011 (2011 La. Acts, No. 407, § 1, eff. July 5, 2011); and (3) 2013 (2013 La. Acts, No. 257, § 1, eff. July 1, 2013). As a result of these amendments, Promyse's 2010 application is governed by the 2009 version of La. R.S. 47:6015; however, Promyse's 2011 application is governed by the 2011 version of the statute. We note that the differences between the amended versions of the statute do not impact the issues under analysis herein.
Promyse filed its application for the 2010 tax year on April 15, 2011; thus, the 2009 version of La. R.S. 47:6015 is applicable to that application. However, Promyse filed its application for 2011 tax year on April 9, 2012, and it falls within the ambit of the 2011 version of La. R.S. 47:6015. Section 3 of Acts 2011, No. 407, enacting the 2011 amendments provides that "[t]he provisions of this Act shall be applicable to tax years beginning on and after January 1, 2011. However, any refundable research and development credits earned and granted prior to the effective date of this Act shall continue to be valid, effective, and transferable according to the terms of the original grant." (Emphasis added.)
The differences between the 2009 and 2011 versions of La. R.S. 47:6015 relate to the means and methods of determining the amount of the credit earned and termination dates for the credit program; however, these distinctions to do not affect this court's analysis of the issues presently before it. --------
Regarding the submission and approval of applications for Louisiana Research Credits, La. R.S. 47:6015 provides as follows (Note that for ease of reference, the distinctions between the 2009 and the 2011 versions of the statute are illustrated by the 2009 version being placed in parentheses and the 2011 version being placed in brackets):
***
B. (2) Any taxpayer who employs up to fifty (Louisiana residents) [persons] and incurs qualified research expenses as defined in 26 U.S.C. §41(b) , for the taxable year, shall be allowed a refundable tax credit to be applied against income and corporation franchise taxes due.
(3) Each taxpayer seeking the credits authorized in this Section shall apply to the Department of Economic Development for the credits. The taxpayer shall remit an application fee of two hundred fifty dollars with the application. The application shall include all of the following:
(a) ...The supporting documentation for a taxpayer who employs up to fifty (Louisiana residents)[persons] shall show the amount of the qualified research expenses for the same taxable year. If claiming the credit under Subsection D of this Section, the taxpayer shall also remit supporting documentation for the federal Small Business Innovation Research Grant.
(b) The total amount of qualified research expenses and the qualified research expenses in this state.
(c) The total number of (Louisiana residents employed) [persons employed in Louisiana] by the taxpayer and the number of those (Louisiana residents)[persons employed in Louisiana] directly engaged in research and development.
(d) The average wages of the (Louisiana resident employees) [persons employed in Louisiana] not directly engaged in research and development and the average wages of the (Louisiana resident employees)[persons employed in Louisiana] directly engaged in research and development.
(e) The average value of benefits received by all (Louisiana resident employees)[persons employed in Louisiana].
(f) The cost of health insurance coverage offered to all (Louisiana resident employees) [persons employed in Louisiana].
(g) Any other information required by the Department of Economic Development.
(4) The Department of Economic Development shall approve or disapprove each application. No credits shall be granted to a taxpayer under this Section unless the credit is approved by the Department of Economic Development. [Emphasis added.]
Promyse contends that if an application meets the two requirements listed in La. R.S. 47:6015(B)(2), then the tax credits "shall be allowed"; thus, LED has no discretion in determining to approve or disapprove whether a taxpayer is issued requested a Louisiana Research Credit. Promyse asserts that La. R.S. 47:6015(B)(4) simply provides that if the LED is presented with an application for the tax credit, LED shall act by approving or disapproving each application, and prohibits the LED from ignoring the application. Based on this reading of the statute, Promyse concludes that it has stated a claim for a property interest in the 2010 and 2011 tax credit, because its amended petition clearly asserts that its 2010 and 2011 applications established that it employed up to fifty persons and incurred qualified research expenses as defined in 26 U.S.C. § 41(b). Further, the amended petition asserts that Promyse submitted the required application and fee under La. R.S. 47:6015(B)(3).
In contrast, the LED contends that La. R.S. 47:6015(B)(4) grants the LED the discretion to approve or disapprove an application, which amounts to an additional requirement to those listed in La. R.S. 47:6015(B)(2). The LED argues that reading the duplicate references to "shall" contained in both La. R.S. 47:6015(B)(2)&(4) in pari materia evidences a legislative intent that an applicant must meet the applicant requirements and receive approval from the LED before having any property interest in the tax credit.
The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La. 6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761 (La. 1/7/00), 756 So.2d 1122, 1128. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier, 808 So.2d at 302; Succession of Boyter, 756 So.2d at 1129. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Swat 24 Shreveport Bossier, 808 So.2d at 302; Succession of Boyter, 756 So.2d at 1129.
It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corporation v. Jewelers Mutual Insurance Company, 2003-0360 (La. 12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. Colvin v. Louisiana Patient's Compensation Fund Oversight Board, 2006-1104 (La. 1/17/07), 947 So.2d 15, 19-20. Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. Sultana Corporation, 860 So.2d at 1119.
Under the reading promoted by the LED, one would have to find that the legislature intended to grant the LED an absolute and unfettered discretionary power to approve or disapprove applications for Louisiana Research Credits, even if the application met the criteria set-forth in La. R.S. 47:6015(B)(2). However, the word "shall" in the context of statutory construction, denotes a mandatory duty, and the reading promoted by the LED effectively renders the mandatory requirements of La. R.S. 47:6015(B)(2) meaningless. See Succession of Boyter, 756 So.2d at 1129. Such a reading allows the mandatory provisions of La. R.S. 47:6015(B)(2) and (4) to be ignored in favor of discretionary determinations by the LED. It is illogical to believe that the legislature intended this result. It is more logical and consistent to read these provisions in a manner that comports with the presumed purpose and intent of the legislature to provide tax credits to promote research and development. Therefore, we find that La. R.S. 47:6015(B)(2) sets forth mandatory requirements, leaving the LED without discretion except to determine whether the requirements of La. R.S. 47:6015(B)(2) are met. As such, we further find that meeting the statutory requirements of La. R.S. 47:6015(B)(2) creates a property interest as it represents a claim for entitlement or a justifiable expectation that the LED would issue the credit.
Based on the above, we find that Promyse's amended petition states a cause of action. The amended petition contains factual allegations that Promyse's 2010 and 2011 applications met the mandatory requirements of La. R.S. 47:6015(B)(2). Further, we note that the amended petition alleges that Promyse was provided no hearing before its application was denied, and that the statute governing the Louisiana Research Credits did not provide for any type of hearing procedure related to the deprivation of its right. Based on the above, we find that Promyse's amended petition states a cause of action for denial of procedural due process. As such, we find that the district court's sustaining of LED's exception of no cause of action as to the procedural due process claims was in error.
b. Attorney Fees
However, we find no error in the district court's finding that Promyse has failed to state a cause of action for attorney fees and administrative fees. Under Louisiana law, an award of attorney fees is not allowed unless authorized by contract or statute. Anglin v. Anglin, 2009-0844 (La. App. 1st Cir. 12/16/09), 30 So.3d 746, 751. Promyse asserts that the LED's actions amount to breach of fiduciary duty, thus, entitling Promyse to attorney fees and administrative costs associated with this action. However, Promyse does not cite, nor can we can find, any statutory or jurisprudential support for the theory that the defendants' actions herein amount to a breach of fiduciary duty. Thus, we affirm the district court's granting of the defendants' exception of no cause of action as to Promyse's claims for attorney fees and administrative costs.
II. Subject Matter Jurisdiction
Next, we consider Promyse's assertion that the district court erred in sustaining the LED's exception of subject matter jurisdiction. Subject matter jurisdiction is the "legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted." La. C.C.P. art. 2. Subject matter jurisdiction cannot be conferred or waived by the parties. La. C.C.P. arts. 2 and 3; Boudreaux v. State, Department of Transportation and Development, 2001-1329 (La. 2/26/02), 815 So.2d 7, 12.
The Louisiana Constitution establishes the subject matter jurisdiction of the courts. The original and appellate subject matter jurisdiction of the district courts is set forth in La. Const. art. V, § 16(A)&(B), to wit:
(A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.
(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.
The Louisiana Constitution vests the district courts with original jurisdiction over all "civil and criminal matters," except as otherwise authorized by the constitution, and with appellate jurisdiction as provided by law. La. Const. art. V, § 16(A), (B). A "civil matter" is one delegated in the first instance to the judicial branch and over which district courts have historically exercised original jurisdiction. See Wooley v. State Farm Fire and Casualty Insurance Company, 2004-0882 (La. 1/19/05), 893 So.2d 746, 764-765; Pope v. State, 99-2559 (La. 6/29/01), 792 So.2d 713, 719.
Not every agency action is subject to the availability of judicial review. See Boeing, 657 So.2d at 657. However, the right to judicial scrutiny exists when there is a claim of deprivation of a constitutionally protected right, an assertion that an agency exceeded constitutional authority, or an allegation that an administrative agency exceeded its legislative grant of authority. Boeing, 657 So.2d at 657; Bunge North American, Inc. v. Board of Commerce & Indus. & Louisiana Department of Economic Development, 2007-1746 (La. App. 1st Cir. 5/2/08), 991 So.2d 511, 526, writ denied, 2008-1594 (La. 11/21/08), 996 So.2d 1106.
The instant matter is distinguishable from Boeing and Blake International v. State, 2015-0164 (La. App. 1st Cir. 9/18/15), 182 So.3d 169, wherein the district courts were found not to have subject matter jurisdiction to judicially review certain agency decisions. For instance, in finding no original jurisdiction, this court in Boeing noted that the plaintiff did not allege that the agency exceeded its authority, nor did the plaintiff articulate a claim of deprivation of any constitutional right. Boeing, 657 So.2d at 658. In contrast, here, Promyse expressly alleges that the LED has exceeded its statutory authority in refusing to grant the tax credits based on a discretion not afforded to it under the statute and by applying the 2013 amended version of the statute inappropriately. Further, Promyse asserts that the failure to have some type of hearing prior to the deprivation of its property interest, the mandatory tax credits, resulted in it being denied its right to procedural due process. The plaintiff's allegations that the LED acted in an unconstitutional manner requires that the decision regarding the tax credits be re-examined. If the courts do not have jurisdiction to review allegations of unconstitutional actions, there is no judicial review or recourse of any nature against an unbridled abuse of power which exceeds constitutional authority. Robinson v. Ieyoub, 97-2204 (La. App. 1st Cir. 12/28/98), 727 So.2d 579, 581, writ denied, 99-0933 (La. 9/17/99), 747 So.2d 1096, and writ denied, 99-0981 (La. 9/17/99), 747 So.2d 1097.
In Blake International, the statute at issue, La. R.S. 51:2454(A), clearly granted the state agency discretion regarding whether or not to enter into a contract with an employer to the provision of incentives. Blake International, 182 So.3d at 177. There, this court focused on the statute's use of word "may", explaining that it is permissive and denotes discretion. Id. Here, we find that La. R.S. 47:6015(B)(2)'s use of the word "shall" is mandatory, and an applicant who meets said provisions holds a property interest in and a justifiable expectation of receiving said tax credits.
It is undisputed that there is no other avenue available for Promyse to seek review of the propriety of the LED's denial of its 2010 and 2011 applications for tax credits. We find that Promyse's request for declaratory relief regarding whether Promyse's application meets the requirements of La. R.S. 47:6015(B)(2) constitutes a "civil matter" over which the district court has original jurisdiction to determine via ordinary proceeding. Therefore, we find that the district court erred in finding that it had no subject matter jurisdiction over Promyse's declaratory action. However, if the district court determines that Promyse's 2010 and 2011 applications meet the mandatory requirements of La. R.S. 47:6015(B)(2), the district court is ordered to remand the matter back to the LED for approval of the applications under the provisions of La. R.S. 47:6015(B)(4). Under La. R.S. 47:6015(B)(4), the LED is the party legislatively authorized to approve the granting of the tax credits and to render the initial relief sought by Promyse in its amended petition.
CONCLUSION
For the above reasons, we reverse in part and affirm in part the July 29, 2015 judgment of the district court dismissing, without prejudice, the claims of the plaintiff/appellant, Promyse Prosthetic-Orthotic Group, Inc., against the defendants/appellees, State of Louisiana, through the Department of Economic Development and Stephen Moret in his capacity as Secretary. We reverse that portion of the judgment, which sustained the exception of no cause of action and dismissed the plaintiff's procedural due process claim. However, we affirm that portion of the judgment, which sustained the defendants' exception of no cause of action and dismissed the plaintiff's claims for attorney fees and administrative costs. We further reverse that portion of the judgment, which sustained the defendants' peremptory exception of lack of subject matter jurisdiction, and we further remand this matter to the district court for further proceedings consistent with this decision. All costs of this appeal in the amount of $1,252.50 are to be divided equally between defendants/appellees, State of Louisiana, through the Department of Economic Development and Stephen Moret in his capacity as Secretary, and the plaintiff/appellant, Promyse Prosthetic-Orthotic Group, Inc.
MOTION TO SUPPLEMENT RECORD GRANTED; JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; REMANDED WITH INSTRUCTIONS.