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Shields & Shields, APLC v. State Dep't of Revenue

Court of Appeal of Louisiana, First Circuit

March 4, 2015

SHIELDS & SHIELDS, APLC
v.
STATE OF LOUISIANA/LA DEPARTMENT OF REVENUE

On Appeal from the 19th Judicial District Court. In and for East Baton Rouge Parish, State of Louisiana. Trial Court No. C592044. The Honorable Todd Hernandez, Judge Presiding.

James E. Shields, Sr., Gretna, Louisiana, Attorney for Plaintiff/Appellant, Shields & Shields, APLC.

Johnette L. Martin, Kimberly Doley, Brandea Averett, Donald M. Bowman, Antonio Ferachi, Adrienne D. Quillen, Baton Rouge, Louisiana, and Van A. Heard, Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Cynthia Bridges, Secretary of the Louisiana Department of Revenue.

BEFORE: McDONALD, CRAIN, AND HOLDRIDGE,[1] JJ. GH, concur in the result.

OPINION

Page 878

[2014-0693 La.App. 1 Cir. 2] CRAIN, J.

Shields & Shields, APLC (Shields), appeals a judgment sustaining a peremptory exception of prescription and dismissing its suit for damages against the State of Louisiana/Louisiana

Page 879

Department of Revenue (the Department). We affirm.

FACTS AND PROCEDURAL HISTORY

On or about March 23, 2009, the Department seized more than $50,000.00 from Shields' bank account pursuant to a warrant for distraint to satisfy tax assessments that had become final and collectible. On January 14, 2011, Shields instituted this suit against the Department, alleging that its president/counsel met with Department employees and presented proof of the Department's error in making the tax assessments and seizing the funds.[2] Shields averred that on three separate occasions, Department employees agreed that an error had occurred, but the Department has refused to honor its employees' promises to return the seized funds. Shields asserted causes of action for breach of agreement and damages, fraud, loss of use of funds, unjust enrichment, and conversion, and asserted application of contra non valentem. Shields later filed an amended petition adding as defendants Betty Avery, identified as an employee of the Department who agreed that the funds would be returned to Shields, and Jocelyn F. Southern, identified as an employee of the Department who rendered an administrative decision contrary to Shields.

[2014-0693 La.App. 1 Cir. 3] The defendants urged multiple exceptions, including lack of subject matter jurisdiction, no cause of action, no right of action, and prescription. The trial court denied Shields' motion to continue the hearing on the exceptions, took the matter under advisement, and, on January 7, 2014, signed a judgment sustaining the exception of prescription and dismissing Shields' suit. The trial court issued written reasons stating that Louisiana Revised Statute 47:1565(B) provides a sixty-day time period for a taxpayer to appeal to the Board of Tax Appeals or to pay under protest, and this suit, filed more than 500 days after the last tax assessment was issued, was untimely. Shields now appeals.

DISCUSSION

Shields contends that the trial court misapplied Section 47:1565 and erred in dismissing its causes of action for damages based on breach of agreement, fraud, loss of use of funds, unjust enrichment, and conversion. As alleged by Shields, these claims arise from the Department's refusal to honor its employees' agreements that the tax assessments ...


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