Simons Petroleum, Inc. VS Dane Falgout, Sales Tax Collector For The Sales & Use Tax Department of The Pointe Coupee Parish Police Jury (2006CA1781 Consolidated With 2006CA1782)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1781 SIMONS PETROLEUM INC VERSUS DANE FALGOUT SALES TAX COLLECTOR FOR THE SALES USE TAX DEPARTMENT OF THE POINTE COUPEE PARISH POLICE JURY Consolidated With 2006 CA 1782 THE POINT COUPEE PARISH POLICE JURY THROUGH ITS SALES AND USE TAX DEPARTMENT VERSUS SIMONS PETROLEUM INC Judgment On Appeal from In and SEP 1 9 2007 Rendered the Eighteenth Judicial District For the Parish ofPointe Coupee Comi State of Louisiana Docket Nos 35 283 and 37 270 Honorable J Robin Free Richard H Morgan Stephen H Myers Lafayette LA Robeli R Rainer Baton Rouge LA BEFORE Judge Presiding Counsel for Appellant Simons Petroleum Inc Counsel for Appellee The Pointe Coupee Parish Through its Sales and Use Department Police Tax P ARRO GUIDRY AND McCLENDON JJ Jury McCLENDON J Simons Petroleum Inc its motion for a Simons has refund of sales the judgment of the trial appealed For the taxes a judgment dismissing that follow reasons we affirm court FACTS AND PROCEDURAL HISTORY This suit arises out of Simons for its sale of 1 January 1997 Police of due and filed a seeking 15 2002 a a 86 135 50 of 18 42 080 was 873 So 2d Cir 3 4 04 2 Said granted by paid by Falgout 2 for 18 of assessment this 03 0610 the Police assessment in on La On October the amount of taxes in the amount February App a Jury devolutively appealed Simons court asserting in additional taxes 86 135 50 Jury additional were the Police Thereafter 42 080 the 23 2004 1 Cir 2 23 04 the in 873 more 874 So 2d 847 proceeding Simons Within that the taxes In the alternative interest of this entire matter is was assigned Comi for the Parish of Pointe 3 v Coupee Parish fully described in two earlier opinions of See Simons Petroleum Inc v Falgout 03 0610 La App 1 Cir 2 23 04 65 and Simons Petroleum Inc v Falgout 03 2600 03 2601 La App 1 background this court 3 to the Police affirmed Inc the Point asserting signed confirming the plus applicable Simons Petroleum The was to paid the original reconventional demand asking and interest awarding judgment which I owed and judgment confirming the and Simons payment under protest Simons filed suit amount penalties judgment I 47 1576 tax taxes issued to Department Police Jury refund of the a use during the audit period of protest Tax supplemental and amending with requested 1999 to LSA R S pursuant miscalculation of the together the making recovery suit Jury March 31 86 135 50 under of for sales and diesel fuel Jury through its Sales and Use thiliy days not off road through assessment amount assessment an docket number 35 283 of the Judicial District Coupee original reconventional demand of the a judgment signed on January 7 2002 motion to strike the the trial comi in Eighteenth 2 Police Jury was So 2d 65 and thereafter reversed held the parish Falgout 04 0695 However the Police a tax to Jury on be unconstitutiona1 La 11 24 04 the as by the Louisiana Supreme Comi which 18 were s paid 42 080 in additional the Police Jury taxes March 18 2003 while Simons July 29 2003 this transfelTed was a the further enjoined from On Simons Petroleum Inc v 888 So 2d 213 separate summary proceeding with should not be 4 rule had appeal show to was paid pending filed why Simons cause of business until the taxes pursuit the sales tax rule proceeding Division B and made to been never filed by part of the a proceeding instituted by Simons Following the filing September 16 of several exceptions by Simons the trial court denied the 2003 and exceptions a hearing and judgment in favor of the Police 16 2003 enjoining Simons from the pursuit of business until the delinquent tax amount Jury plus applicable suspensive appeal of this judgment the judgment of the trial 2600 03 2601 apply for a La 42 840 94 the 1 Cir App On March 10 18 42 080 Thereafter and parish court tax unconstitutional was Simons Petroleum 3 4 04 signed on September 18 42 080 Simons filed paid Inc 874 So 2d 847 court judgment Simons 2004 amount following interest was granted a On March 4 2004 this comi affirmed rehearing of said appellate supreme comi the Judgment on paid plus penalties or v Falgout Simons did a not seek writs with the the total amount due of and interest the decision of the supreme comi Simons filed 03 Motion and declaring Order for 4 In its decision the supreme court dete1111ined that the Louisiana Constitution prohibits the taxation by political subdivisions of off road diesel fuel Upon the supreme comi s reversal the Police Jury refunded to Simons only the amount of the original assessment paid under protest with applicable interest which totaled 5 106 403 62 This summary proceeding was filed pursuant to LSA R S 47 314 and LSA R S 47 1574 made applicable through LSA R S 33 2841 and was assigned docket number 37 270 in Division A of the Eighteenth Judicial District Comi for the Parish of Pointe Coupee 3 Refund of Taxes Paid Under Protest 6 In response to this motion the Police Jury filed several exceptions including the dilatory exception raising the objection of unauthorized of summary use exception raising the exception of lis pendens exceptions raising the objections of res judicata of action cause rendered Following sustaining the prejudice Judgment filed a Motion for Subsequently hearing a and 9 exceptions and dismissing signed was on which Rehearing Simons filed a September timely devolutive the 2005 peremptory 8 2005 no judgment Simon denied was declinatory right of action and no August on the proceedings was motion with s Thereafter Simons on October 11 2005 appeal OUTSTANDING MOTIONS Initially December 1 address the we 2006 the Police lack of jurisdiction of court to file in opposition Jury filed were motion to dismiss the for January deny to the the Police 15 judgment the same Jury s memorandum was February on as 8 untimely appeal panel court to to motion to strike find that Simons did cOllli held in its a In response thereto not which awarded the additional motion appeal motion for leave motion to strike the memorandum a referred we a 29 2007 filed filing of the memorandum in opposition hereinafter Although on to the motion to dismiss explained 6 On grant Simons motion for leave of We fmiher 2002 a motions filed in this matter On December 19 2006 Simons filed The above motions allow the filed Jury reply brief and a 2007 the Police We outstanding filed in each of the file a reply brief and the motion And acquiesce as to dismiss more fully in the October paid the original separate proceedings this taxes when it that the proceeding involving the sales tax rule to show in the same proceeding which yielded the previous opinion prosecuted See Simons Petroleum Inc v Falgout 874 So 2d at October 15 200 2 judgment 850 Fmihermore in reviewing Simons objection of lis pendens this court observed that b ecause two or more suits are not pending the trial court correctly denied the exception of lis pendens Id cause was transfened to and 4 additional this taxes appeal Accordingly we deny the Police Jury s motion dismiss to 7 for lack of jurisdiction DISCUSSION In its appeal Simons initially find that its payment of the additional to under protest Simons its recovery it also the same challenge by sales tax the to pending by the filing was question additional audit 8 for the audit validity a The Police period case we question as the The agree was amount imposed during same already same originally The recovery the audit period paid the sales transactions for the also made under protest We find however procedures no court that the payment was untimely tax amount forth in LSA R S 47 1576 for set judgment denying Simons motion untimely The Police Jury argues that pursuant to certain tax provisions the time delays therein prevent this appeal However LSA R S 47 1574 cited by the Police Jury refers to summary proceedings for due the collection of all claims by or on behalf of the collector for taxes of taxes already determined and paid Simons is seeking a refund for 8 a Jury also contends that the owing for arising from the order the refund of the additional However Simons followed the 7 for the was original derived from the very finding of the trial court detennined not in and determined that when Simons court tax amount and it therefore could the The award of the additional sales audit same failing timely payment recalculation of the amount owed in this factual The trial period period of the sales taxes The trial audit October 15 2002 on in protest and then filing suit for unique facts of this period that its payment en or same of the recovery suit simply delinquent the the transactions for the very suit contested the manifest on was a any other taxes found to be due and during assessment the trial court assessed and same Based assessment taxes challenged due ed en timely challenging assessment under sales transactions same taxes that in urges by paying the assessment in argues that the trial court refund should be dismissed Of course when suit plus applicable interest was as as appeal of the unauthorized and filed Simons could that was the only only ask for amount in 5 a dispute refund of the at that time 86 135 50 the recovery of taxes of the assessed miscalculation taxes was protest but made at the time the initial payment by Simons Simons was unaware of the by the parish Simons also asserts tax rule not appeal from this judgment in the trial under paid court from the further s that the trial final was a court s holding that the sales decision on That the sales rule tax IS 16 2003 FURTHER DECREED that We find no error judgment simply enjoined Simons pursuit of business until the additional Specifically the September IT erred in appealable judgment since Simons did non determination comi taxes were paid judgment provided ORDERED to La R S ADJUDGED AND 47 314 and comparable provisions in the local ordinances Simons be enjoined from the fmiher pursuit of business until such time as it has paid to the Parish delinquent taxes in the amount of 18 42 080 plus applicable interest as shown in the judgment signed on pursuant October 15 2002 in this judgment tax rule The sales legality 18 tax in At the collected several by the by paying all court Rule Emphasis added supreme court to determine the not Rather the October 15 under 2002 to taxes was or judgment 15 2002 already the taxes address the awarded the question and Simons properly appealed said judgment hearing on the Police Simon Jury s motion for a the trial comi raising the objection of res judicata respect connection validity of award the additional refund of the additional initially exceptions filed by the Police Jury expressly costs in the additional tax amount and which rule judgment did of the taxes 42 080 until the reversal of said judgment specifically referenced the October judgment which awarded under review or with Simons with this Sales Tax The sales matter released the Police Jury the Police In its Jury contended that Simons the recovery suit when it refunded the 6 heard and sustained peremptory exception from any and all protest We agree taxes further claims with original assessment paid A transaction persons who differences for compromise or preventing by mutual between the LSA C C adjudged an LSA C C parties art agreement between an putting or consent interested is a 3078 force end Parish School Board 797 So 2d 730 733 A valid compromise litigation through the defense Stewart 02 0181 The p 14 La 00 1293 of res App p is 3 La 1 Cir 7 2 03 December 29 2004 provided in on Hoover raised as a bar L L C Company 850 So 2d 51 Receipt and Satisfaction of Judgment things v 1 Cir 6 22 01 App Five N of litigation in the release appropriately judicata adjust their authority valid release bars a or more Transactions have to the compromised issues contemplated by the pmiies Livingston lawsuit a 3071 mi equal Thus to two to v 60 signed by Simons on part Appearer acknowledges that said payment represents a full and complete refund of all sales and use taxes paid under protest in a refund claim filed in the Eighteenth 18th District Court B sales 1 tax through bearing Docket No 35 283 Division paid during the taxable audit period January Judicial March 3 1 1999 together with the appropriate for 1997 interest thereon Appearer check as further declares that he does payment in asserted hereby accept said full satisfaction of any and all claims Petroleum in those proceedings Inc by Simons recently pending in the Eighteenth 18th Judicial District Comi styled Simons Petroleum Inc v Dane Falgout Sales Tax Use Tax Department of the Pointe Collector for the Sales Coupee Parish Police JUlY Docket No 35 283 Division B and in the Louisiana Supreme Comi under Docket No 2004 C 0695 and hereby declares that Simons Petroleum Inc does hereby release and discharge Dane Falgout in his above stated official capacity and all of his agents employees attorneys and other taxing authorities located in Pointe Coupee Parish Louisiana from any and all further claims damages or causes of action with respect to that judicial proceeding In its Motion and Order for Refund of Taxes Paid under Protest throughout this appeal Simons has consistently argued that refund of the additional taxes is based 7 on its right and to a its assertion that the additional tax amount timely paid under protest based was recovery suit Simons did released any and Use Tax Sales were taxes Inc v the Department of Docket No which 2004 C 0695 asserted Accordingly exception raising the trial Simons motion for a affirm the we in those District Court Coupee Parish Police Supreme Jury Court under can only refund of the additional taxes We conectly sustained the Police Jury court s 10 the defense of res judicata In conclusion a in the Tax Collector for the recovery suit conclude that Simons released its claim for full for its claim by Simons and in the Louisiana is the a protest and specifically Falgout Sales the Pointe B 9 protest Eighteenth 1 8th Judicial Dane Docket No 35 283 Division paid under paid under paid claims all proceedings recently pending in styled Simons Petroleum use the Simons represented not include any reservation of rights for the additional taxes it asserts Simons timely filing of 62 amount 403 106 complete refund of all sales and recovery suit its by the plain language of the receipt However acknowledged that the refund of the and on judgment of the refund of the additional trial court taxes it paid to dismissing the Police Jury CONCLUSION For the above and is affirmed foregoing Costs of this appeal reasons are the assessed September 8 2005 judgment against Simons Petroleum Inc MOTION FOR LEAVE TO FILE REPLY BRIEF GRANTED MOTION TO STRIKE DENIED MOTION TO DISMISS APPEAL 9 Fmihermore with respect to any claim that Simons might have for a refund of the additional taxes based on the sales tax rule we again note that Simons did not appeal or seek writs from this court s opinion on the sales tax rule and that judgment became a of the recovery suit judgment sales tax rule judgment A consolidation of cases does somehow of the cases as each retains its separate procedural status and not result in a merger attributes F Maraist and H Lemmon Louisiana Civil Law Treatise Volume 1 Civil final non Procedure appealable judgment effect an appeal ofthe 9 10 8 Nor did the appeal 1999 10 of resjudicata and thereby Finding that the trial comi correctly granted the exception motion for a refund of taxes it is not necessary to address cOlTectIy dismissed Simons the remaining exceptions filed by the Police Jury 8 FOR LACK OF JURISDICTION JUDGMENT AFFIRMED 9 DENIED SEPTEMBER 8 2005

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