Dupre Logistics, L.L.C. VS Cynthia Bridges, Secretary, Department of Revenue, State of Louisiana
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 1071 DUPRE LOGISTICS LLC VERSUS CYNTHIA BRIDGES SECRETARY DEPARTMENT OF REVENUE STATE OF LOUISIANA Judgment rendered December 22 2010 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No C586301 Honorable Janice Clark Judge CHRISTOPHER DICHARRY ATTORNEYS FOR JENNY PHILLIPS PLAINTIFF APPELLANT BATON ROUGE LA DUPRE LOGISTICS LLC MIRANDA CONNER ATTORNEY FOR BATON ROUGE LA DEFENDANT APPELLEE CYNTHIA BRIDGES SECRETARY DEPARTMENT OF REVENUE STATE OF LOUISIANA BEFORE KUHN PETTIGREW JJ 1 and KLINE J pro tempore Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW J Dupre Logistics LLC Dupre appeals a judgment in favor of Cynthia Bridges Secretary of the Louisiana Department of Revenue the Department sustaining the s Department exceptions raising the objections of no right of action and lack of subject matter jurisdiction and dismissing with prejudice its suit against the Department For the following reasons we reverse in part affirm in part and remand for further proceedings FACTS AND PROCEDURAL HISTORY According to the record the Department determined that Dupre owed Louisiana Motor Vehicle Sales Taxes on the purchase of certain vehicles By Notices of Assessment Notices dated May 19 2008 the Department sought to assess Dupre taxes in the total amount of 171 inclusive of interest and penalties on the vehicles purchased 62 664 On December 2 2009 the Department filed a Notice of Levy andor Garnishment to s Dupre bank listing the amounts due for the unpaid sales tax On December 21 2009 Dupre paid 171 to the Department under protest pursuant to La 62 664 S R a 1 A 1576 47 Thereafter Dupre filed the instant suit on January 11 2010 for refund of the taxes it paid under protest Dupre alleged that the assessments were invalid that it did not become aware of the assessments until the Department initiated steps to begin seizing Dupre property that the Department failed to follow the statutorily mandated s procedures for the valid assessment of taxes and for the issuance of Notices and that the s Department attempt to seize Dupre assets was improper s In response to Dupre s petition the Department filed exceptions raising the objections of no right of action no cause of action and lack of subject matter jurisdiction The exceptions were heard by the trial court on March 15 2010 at which time the trial court heard arguments from both sides The trial court overruled the Department s no cause of action exception finding that Dupre stated a valid cause of action in its petition With regard to the remaining issues the trial court found that the assessments had become final at the time Dupre filed its petition for refund of taxes paid under protest Thus the trial court sustained the no right of action and lack of subject matter K jurisdiction exceptions and dismissed with prejudice s Dupre suit against the Department A judgment in accordance with these findings was signed by the trial court on April 7 2010 This appeal by Dupre followed wherein the following assignments of error were specified I The Trial Court erred in granting the exception of no right of action where the allegations of the petition indicate that Dupre has a right of action and no evidence was introduced into the record to establish that Dupre did not have a right of action II The Trial Court erred in granting the exception of lack of subject matter jurisdiction where the lack of subject matter jurisdiction does not appear on the face of Dupre petition and no evidence was introduced into s the record to establish that the district court lacks subject matter jurisdiction over this lawsuit NO RIGHT OF ACTION Generally an action can only be brought by a person having a real and actual interest that he asserts La Code Civ P art 681 The objection of no right of action tests whether the plaintiff who seeks relief is the person in whose favor the law extends a remedy Howard v Administrators of Tulane Educational Fund 2007 2224 p 16 La 7 986 So 47 59 An exception pleading the objection of no right of 08 1 2d action tests whether the plaintiff has any interest in judicially enforcing the right asserted La Code Civ P art 927 A 6 Louisiana State Bar Assn v Carr and Associates Inc 20082114 p 8 La App 1 Cir 5 15 So 158 165 writ 09 8 3d denied 20091627 La 10 21 So 292 09 30 3d The objection of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation Taylor v Babin 20082063 p 5 La App 1 Cir 5 13 So 633 637 writ denied 20091285 La 9 18 So 09 8 3d 09 25 3d W11 Evidence supporting or controverting an objection of no right of action is admissible Jackson v Slidell Nissan 961017 p 6 La App 1 Cir 5 693 97 9 2d So 1257 1261 The party raising a peremptory exception bears the burden of proof 3 Falco Lime Inc v Plaquemine Contracting Co Inc 951784 p 5 La App 1 Cir 4 672 So 356 359 To prevail on a peremptory exception pleading the 96 2d objection of no right of action the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit Jones v McDonald Corp 618 So 992 995 La App 1 Cir 1993 s 2d Whether a plaintiff has a right of action is ultimately a question of law therefore it is reviewed de novo on appeal Jackson v St Helena Parish Sheriffs Dept 2001 2792 p 2 La App 1 Cir 11 835 So 842 844 02 8 2d SUBJECT MATTER JURISDICTION Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled La Code Civ P art 1 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 Code Civ P art 2 The issue of subject matter jurisdiction addresses the court authority to adjudicate s the cause before it The issue may be raised at any time and at any stage of an action McPherson v Foster 2003 2696 p 8 La App 1 Cir 10 889 So 282 04 29 2d 288 If a lack of subject matter jurisdiction is not apparent on the face of the plaintiffs petition then the onus is on the defendant to offer evidence in support of the exception La Code Civ P art 930 Crockett v State Through Dept of Public Safety and Corrections 972528 p 5 La App 1 Cir 11 721 So 1081 98 6 2d 1084 writ denied 982997 La 1 736 So 838 99 29 2d DISCUSSION On appeal Dupre argues that because the Department did not introduce any evidence into the record in support of its exceptions it failed in its burden of proof and was not entitled to judgment in its favor The Department asserts that because the tax assessments were final the payment under protest procedure was no longer available to Dupre and Dupre had no right of action to challenge the assessments The Department alleges further that Dupre failure to appeal the assessments to the Board s 2 of Tax Appeals and the assessments becoming final resulted in the trial court losing subject matter jurisdiction The record before us contains a memorandum in support of the Department s exceptions which was supplemented with various exhibits However the record contains no evidence and there is no indication in the transcript minutes or judgment that any of the attachments to the Department memorandum were offered into s evidence at the hearing on the exceptions Pursuant to La Code Civ P art 2164 an appellate court must render its judgment upon the record on appeal The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings court minutes transcript jury instructions judgments and other rulings unless otherwise designated La Code Civ P arts 2127 and 2128 Official Revision Comment d for La Code Civ P art 2127 An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence Our Lady of the Lake Hosp v Vanner 950754 p 4 La App 1 Cir 12 669 So 463 465 95 15 2d A court cannot consider exhibits filed into the record as attachments to a memorandum because such attachments are not evidence Since such attachments are not evidence they are not properly part of the record on appeal Satterthwaite v Byais 2005 0010 p 6 La App 1 Cir 7 943 So 390 395 06 26 2d In this case the Department had the burden of proving whether Dupre belonged to the class of persons to whom the law grants the cause of action asserted in the suit and whether the trial court had subject matter jurisdiction over the matter Because we are not authorized by law to consider the s Department attachments to its memorandum in support of its exception and because the record before us contains no evidence submitted by the Department to support the exceptions we find that the z At the beginning of the record the clerk office inserted a page entitled CIVIL EVIDENCE LIST that s states NO EVIDENCE HAS BEEN FILED WITH THE CLERK OF COURTS OFFICE AS OF JUNE 11 2010 Cf Our Lady of the Lake Hosp v Vanner 950754 pp 45 La App 1 Cir 12 669 So 463 95 15 2d 465 in which the minute entry and judgment reflected that evidence had been introduced at the exception hearing but the record did not include any such evidence This court remanded for an evidentiary hearing on the issue of whether the evidence had been introduced and for supplementation of the record with the evidence if properly introduced 5 Department failed to meet its burden of proof in this matter Thus the trial court was in error in sustaining the objections of no right of action and lack of subject matter jurisdiction CONCLUSION For the above and foregoing reasons we reverse that portion of the trial court s April 7 2010 judgment that sustained the Department no right of action and lack of s subject matter exceptions and dismissed Dupre suit with prejudice s In all other respects the judgment is affirmed The matter is remanded for further proceedings Appeal costs in the amount of 1 are assessed against defendant appellee 32 188 Cynthia Bridges Secretary of the Louisiana Department of Revenue AFFIRMED IN PART REVERSED IN PART REMANDED 6 DUPRE LOGISTICS INC FIRST CIRCUIT VERSUS COURT OF APPEAL CYNTHIA BRIDGES SECRETARY STATE OF LOUISIANA DEPARTMENT OF REVENUE STATE OF LOUISIANA NO 2010 CA 1071 UHN J concurring I do not believe the exceptions have merit regardless of whether the attachments are considered Accordingly I concur in the reversal
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