Opinion
No. 2003 CA 0934.
February 23, 2004. Order on Rehearing April 6, 2004.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, TRIAL COURT NO. 480,150, HONORABLE WILLIAM MORVANT, JUDGE.
JAMES T. MAUGHAN ROY H. MAUGHAN, Jr. Baton Rouge, LA, And HARRY L. SHOEMAKER Baton Rouge, LA, And ROBERT E. BLACKWELL, Attorneys for Appellant Plaintiffs. Lloyd Patrick Larrieu, Linda B. Grene, and Karen V. Dessell.
DEBORAH A. HOWELL PAUL S. WEST Baton Rouge, LA, Attorneys for Appellees Defendants Wal-Mart Stores, Inc. Sam's East, Inc. Office Max, Inc.
ROBERT RAINER FREDERICK MULHEARN Baton Rouge, LA, Attorneys for Appellees Defendants Ascension Parish Sales Use Tax, Caddo-Shreveport Sales Use Tax, Calcasieu Parish School Board, Iberia Parish School Board, Lafayette Parish School Board, Livingston Parish School Board, Vernon Parish School Board, St. Mary Parish Council.
CLAIRE BABINEAUX-FONTENOT JASON R. BROWN E.M. QUIJANO Baton Rouge, LA, Attorneys for Appellees Defendants Radio Shack Corporation Eckerd Corporation.
L. LANE ROY Lafayette, LA, Attorney for Appellee Defendant Lafayette Parish School Board.
PATRICK M. AMEDEE Metairie, LA, Attorney for Appellee Defendant Lafourche Parish School Board Sales and Use Tax Division.
LEA ANN BATSON Baton Rouge, LA, Attorney for Appellee Defendant City of Baton Rouge EBRP.
OLIVIA S. TOMLINSON Baton Rouge, LA And COVERT J. GEARY New Orleans, LA, Attorneys for Appellee Defendant Winn-Dixie Louisiana, Inc.
SALVADORE E. GUTIERREZ, Jr. Chalmette, LA, Attorney for Appellee Defendant St. Bernard Parish.
LELAND R. GALLASPY Covington, LA, Attorney for Appellee Defendant St. Tammany Parish.
JOHN D. SCHOONENBERG Houma, LA, Attorney for Appellee Defendant Terrebonne Parish Sales Use Tax.
STEVEN S. LEVENSON Deerfield, IL, Attorney for Appellee Defendant Walgreen Healthcare Plus, Inc.
KENNETH C. FONTE DAVID K. GALTON Metairie, LA, Attorneys for Appellee Defendant Jefferson Parish.
TRULY W. McDANIEL Bossier City, LA, Attorney for Appellee Defendant Bossier City.
A. GERALD CASWELL Eunice, LA, Attorney for Appellees Defendants St. Landry Parish School Board Acadia Parish School Board.
GENEVA LANDRUM Baton Rouge, LA, Attorney for Appellee Defendant Louisiana Department Revenue.
THOMAS A. ROBICHAUX New Orleans, LA, Attorney for Appellee Defendant City of New Orleans.
Panel composed of Judges FRANK FOIL, BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
On January 17, 2001, plaintiffs filed this lawsuit seeking to recover overcharges that were remitted to state and local taxing authorities on the sale of pre-paid telephone calling cards sold after July 1, 1998 against vendors who collected the tax, the State of Louisiana's Department of Revenue and numerous local taxing authorities.
Various exceptions and motions were filed by the defendants. The first judgment entered by the trial court dismissed most of the defendants from the litigation except for the City of Orleans, and Terrebonne and Vernon Parishes. That judgment was appealed in a companion case decided this day, Larrieu v. Wal-Mart Store, Inc., 03-0600 (La.App. 1 Cir. 02/23/04), 872 So.2d 1157. Therein, this court held that the trial court lacked subject matter jurisdiction to entertain a suit seeking to recover overcharged sales taxes against state and local taxing authorities because the taxpayers failed to exhaust the administrative remedies available to them by state and local statutes and ordinances.
The instant appeal challenges the trial court's rulings that dismissed Orleans Parish on an exception of lack of subject matter jurisdiction and granted motions for summary judgment filed by Terrebonne and Vernon Parishes. The taxpayers also assign as error the failure of the trial court to rule on its motion for class certification before considering certain exceptions.
For the reasons set forth in the companion case, we conclude that the trial court did not have subject matter jurisdiction to adjudicate the taxpayers' refund claims because the taxpayers failed to exhaust the administrative remedies provided to them in the local ordinances, and the dismissal of the City of Orleans and Vernon Parish from the litigation was proper. However, with respect to Terrebonne Parish, we are unable to enter a ruling at this time. Although the record reflects that the judge granted Terrebonne Parish's motion for summary judgment orally, the record does not contain a written and signed judgment to that effect. The signed judgment pertaining to Terrebonne Parish contains only the trial judge's denial of an exception of no right of action. Therefore, Terrebonne Parish's appeal is premature and we must remand the case to the trial court to allow the defect to be cured.
Accordingly, we affirm that portion of the judgment dismissing the City of Orleans and Vernon Parish from the lawsuit. The appeal is dismissed as to Terrebonne Parish, and the case is remanded to the trial court for the entry of a written final judgment into the record. All costs of this appeal are assessed to appellants.