STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2015 CA 1721

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2015 CA 1721 JAZZ CASINO COMPANY, L.L.C. VERSUS CYNTHIA BRIDGES, SECRETARY, LOUISIANA DEPARTMENT OF REVENUE Judgment Rendered: JUN On Appeal from the Nineteenth Judicial District Court In and for the Parish ofeast Baton Rouge State oflouisiana No. C The Honorable R. Michael Caldwell, Judge Presiding Jesse R. Adams, III Andre B. Burvant Justin B. Stone New Orleans, LA Attorneys for Plaintiff/ Appellee Jazz Casino Company, L.L.C. Miranda Y. Conner Antonio C. Ferachi Brandea P. Averett Debra D. Morris Brian DeJean Baton Rouge, LA Attorneys for Defendant/ Appellant T.A. "Tim" Barfield, Jr., Secretary, Louisiana Department ofrevenue BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

2 HOLDRIDGE, J. Defendant/Appellant, T.A. " Tim" Barfield, Jr., Secretary 1 of the Louisiana Department ofrevenue ( Department), appeals a trial court judgment issuing a writ of mandamus directing him to pay the outstanding amount due to Plaintiff/Appellee, Jazz Casino Company, L.L.C. ( Jazz), pursuant to a Board of Tax Appeals ( BTA) judgment. For the reasons that follow, we reverse the trial court judgment and recall the writ. FACTS AND PROCEDURAL HISTORY Jazz operates a land-based casino in New Orleans, Louisiana. In connection with its operations, Jazz rented rooms in various unrelated New Orleans hotels during the tax periods of October 1, 1999 through June 30, According to Jazz, the Department collected certain taxes on these hotel/motel room rentals room taxes) not only on behalf ofthe State of Louisiana (state), but also on behalf of the Louisiana Tourism Promotion District (LTPD), the Louisiana Stadium & Exposition District ( LSED), and the New Orleans Exhibition Hall Authority NOEHA). Arguing that it had been a " permanent" rather than a " transient" guest, Jazz sought a refund ofroom taxes it paid during the relevant tax periods. See 61 LAC Pt I, See also Jazz Casino Co., L.L.C. v. Bridges, ( La.App. l Cir. 8/9/13) ( unpublished). In August 2004, Jazz filed three refund claims with the Department: one for the refund of state room taxes; one for the refund of LSED room taxes; and one for the refund ofnoeha room taxes. All three refund claims were denied. Consequently, Jazz sought a detennination by the BTA regarding its entitlement to the refunds. After protracted litigation, Jazz and the Department 1 In the capacity ofsecretary, Barfield is the successor to Cynthia Bridges. 2

3 ultimately stipulated that Jazz had " overpaid $1,983,315.27, exclusive of interest," in room taxes. Of this amount, it was stipulated that 2% was attributable to state general sales taxes while the remaining 98o/o was attributable to LTPD, LSED, and NOEHA taxes. As a result ofthe stipulations made by the parties, the BTA issued a judgment on October 8, 2014, ordering the Department to refund the entire 1,983, to Jazz, together with applicable statutory interest, pursuant to La. R.S. 47:162l(D)(l). By a check dated January 8, 2015, the Department refunded Jazz 430, for the 2% attributable to state sales taxes plus ( at least, partial) interest. However, the Department took the position that it was not required to pay the portion of the BTA judgment attributable to the taxes it had collected and remitted to LTPD, LSED, and NOEHA and advised Jazz to contact those entities directly. Jazz declined to negotiate the check issued by the Department; Jazz maintained that the BTA judgment ordered the Department to pay the total amount ofthe judgment. On August 28, 2015, Jazz filed a petition for a writ of mandamus directing Barfield to pay the remainder due under the October 8, 2014 BTA judgment 1,613,851.85, plus interest), which it contended was his ministerial duty pursuant to La. R.S. 47:1437(B) and La. R.S. 47:1621(D)(3). Significantly, Jazz did not allege that it was unable to obtain relief through ordinary process nor did it contend that any delay in pursuing such relief would result in injustice. An alternative writ of mandamus was issued, and the matter was set for a hearing. In response, Barfield filed several exceptions including an exception of no cause of action. Following the hearing, the trial court denied Barfield's exceptions and ruled in favor of Jazz and, on September 24, 2015, signed a judgment making the writ of 3

4 mandamus peremptory. The writ ordered Barfield to pay the entire outstanding amount ofthe BTAjudgment within 35 days. Barfield suspensively appealed. LAW AND DISCUSSION Mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief. Aberta, Inc. v. Atkins, La. 5/25/12), 89 So.3d 1161, 1163; Bd. of Trustees of Sheriffs Pension and Relief Fund v. City of New Orleans, ( La. 5/24/02), 819 So.2d 290, 292 ( per curiam); Louisiana Assessors' Ret. Fund v. City of New Orleans, ( La ), 809 So.2d 955, 956 ( per curiam). A writ of mandamus may be directed to a public officer to compel the performance ofa ministerial duty required by law. La. C.C.P. art Nevertheless, a writ of mandamus should be issued only in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862; Bd. oftrustees ofsheriffs Pension and ReliefFund, 819 So.2d at 292. Therefore, to prevail in its mandamus action, Jazz must show that: ( 1) the law clearly requires Barfield to perform a non-discretionary, ministerial duty in this matter; and ( 2) mandamus is Jazz's only available remedy or the delay occasioned by the use of any other remedy would cause injustice. See La. C.C.P. arts 3862 and See also Aberta, Inc., 89 So.3d at ; Cent. Cmty. Sch. Bd. v. E. Baton Rouge Par. Sch. Bd., ( La.App. 1 Cir. 6/6/08), 991 So.2d 1102, 1107, writs denied, , ( La. 12/12/08), 997 So.2d 561. Both requirements must be met in order for a court to properly make a writ of mandamus peremptory. Taube v. St. Charles Par. Sch. Bd., ( La.App. 5 Cir. 4/11101), 787 So.2d 377, 380; Reg'l Transit Auth. v. Kahn, ( La.App. 4 Cir. 8/26/99), 742 So.2d 960, 964, writ denied, ( La. 9/8/99), 749 So.2d

5 Based on the record before us, we find that Jazz has failed to meet its burden of showing that the extraordinary remedy of mandamus is warranted in this case. Clearly, the law affords Jazz the ability to seek relief by ordinary means, such as a mandatory injunction. 2 Moreover, Jazz has failed to even allege, much less argue or demonstrate, that any delay involved in obtaining ordinary relief would cause injustice sufficient to justify the issuance of a writ ofmandamus. 3 See La. C.C.P. art. 3862; Louisiana Assessors' Ret. Fund, 809 So.2d at 956. Similarly, the trial court's oral reasons for judgment fail to reveal a specific finding by the trial court that ordinary means of relief were unavailable or that the delay in obtaining such relief would result in injustice. On the contrary, the reasons suggest that the trial court simply concluded that a duty existed and issued the writ without conducting a proper analysis to detennine whether the extraordinary remedy ofmandamus was warranted. See Louisiana Assessors' Ret. Fund, 809 So.2d at 956. Consequently, we find that the trial court's judgment must be reversed and the writ of mandamus recalled. Because Jazz failed to meet its burden of showing that it is unable to obtain relief by ordinary means or that the delay in obtaining such relief would cause injustice, it is not entitled to mandamus relief. Having found that the judgment must be reversed, we pretermit any discussion of Barfield's remaining assignments oferror. 2 If Jazz pursues relief by ordinary means, such as a mandat01y injunction, it is evident that LTPD, LSED, and NOEHA could be named as additional defendants to ensure the availability offull relief. Although Jazz requested a refund in 2004 and was found to be entitled to a refund by a judgment rendered in 2014, we cannot say, without any doubt, that these facts are sufficient, in and of themselves, to satisfy this requirement. See Bd. oftrustees of Sheriffs Pension & Relief Fund, 819 So.2d at 292 (" Plaintiffs' petition alleges that the City has failed to deduct and remit the sums due... but they have not presented any reason why, after more than 38 years, any further delay would cause injustice sufficient to justify the issuance of a writ of mandamus."); Louisiana Assessors' Ret. Fund, 809 at 956 (" Plaintiffs' petition alleges that the City has failed to deduct and remit the sums due... since 1974, but they have not presented any credible reason why, after all these years, any further delay would cause injustice sufficient to justify the issuance of a writ of mandamus."). We further note that the pertinent tax statutes cited by Jazz in its petition do not expressly provide for mandamus relief. 5

6 CONCLUSION For all of the foregoing reasons, we reverse the September 24, 2015 judgment of the trial court and recall the writ of mandamus. Jazz Casino Company, L.L.C. is cast with all costs ofthis appeal. REVERSED; WRIT OF MANDAMUS RECALLED. 6