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Bridges v. Nelson Industrial Steam Co.

Court of Appeals of Louisiana, Third Circuit

May 2, 2018

CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA
v.
NELSON INDUSTRIAL STEAM COMPANY CYNTHIA BRIDGES, SECRETARY, DEPARTMENT OF REVENUE, STATE OF LOUISIANA
v.
NELSON INDUSTRIAL STEAM COMPANY NELSON INDUSTRIAL STEAM COMPANY
v.
CALCASIEU PARISH SCHOOL BOARD SALES AND USE TAX DEPARTMENT, ET AL. NELSON INDUSTRIAL STEAM COMPANY
v.
CALCASIEU PARISH SCHOOL BOARD SALES AND USE TAX DEPARTMENT, ET AL.

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, CONSOLIDATED CASE NOS. 2008-6375, 2010-5853; 2010-3564, AND 2013-2661 HONORABLE RONALD F. WARE, DISTRICT JUDGE

          Linda S. Akchin, Angela W. Adolph, Jason R. Brown, Kean Miller LLP Counsel for Defendant/Appellant: Nelson Industrial Steam Company

          H. Alan McCall, Stockwell, Sievert, Viccellio, Clements & Shaddock Counsel for Defendant/Appellant: Nelson Industrial Steam Company

          Russell J. Stutes, Jr., Stutes & Lavergne, LLC Counsel for Defendant/Appellee: Calcasieu Parish School System Sales and Use Tax Department

          Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          PHYLLIS M. KEATY, JUDGE

         The taxpayer, Nelson Industrial Steam Company (NISCO), appeals a judgment rendered in its favor in these consolidated tax cases, granting its exceptions of lack of subject matter jurisdiction and improper cumulation to an Amended Answer and Reconventional Demand (AA&RD) filed by the Calcasieu Parish School System Sales and Use Tax Department (CPSS), and dismissing the foregoing pleading without prejudice. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         This matter involves four consolidated tax cases. Two are suits by Cynthia Bridges, Secretary, Louisiana Department of Revenue, State of Louisiana (LDR) against NISCO to collect taxes and two are suits by NISCO against CPSS for the refund of taxes paid under protest. NISCO is in the business of generating electric power in Lake Charles, Louisiana. NISCO sells steam, electricity and ash. Limestone is bought and used for the dual purpose of inhibiting sulfur in the production of electricity and producing ash. NISCO contends that its purchase of limestone, with respect to its production of ash, is subject to the "further processing exclusion" of La.R.S. 47:301(10)(c)(i)(aa), which narrows the scope of taxable sales.

         These cases have been before this court twice before. In Bridges v. Nelson Industrial Steam Co., 14-1250, pp. 2-3 (La.App. 3 Cir. 6/24/15), 169 So.3d 711, 713, we stated:

The trial court initially heard cross-motions for summary judgment on the further processing issue and granted summary judgments in favor of the State and the Parish in the first three suits. On appeal, this court affirmed. Bridges v. Nelson Industrial Steam Co., 12-477 (La.App. 3 Cir. 11/7/12), 106 So.3d 147. The Louisiana Supreme Court granted NISCO's writ application and vacated the summary judgment rulings, finding that genuine issues of material fact precluded summary judgment. Bridges v. Nelson Industrial Steam Co., 13-171 (La.3/8/13), 108 So.3d 1168. On remand, following a trial on the merits which included the fourth suit, the trial court rendered judgments again in favor of the State and the Parish, signing four separate judgments, one for each of the consolidated cases.

         This court affirmed the trial court's rulings. Id. Upon NISCO's application for writ of certiorari, the supreme court granted writs, reversed, and remanded "to the trial court to fix the amount of the judgment in a manner consistent with [its] opinion." Bridges v. Nelson Indus. Steam Co., 15-1439, p. 17 (La. 5/3/16), 190 So.3d 276, 287. Thereafter, NISCO submitted proposed judgment to LDR and CPSS; however, when the parties were unable to agree on who would pay costs, NISCO filed a Motion for Entry of Judgment and Rule for Taxation for costs, which LDR opposed. Following a December 12, 2016 contradictory hearing, NISCO circulated judgments to the parties for signature, and the trial court signed a Judgment After Remand on January 11, 2017.

         In the interim, CPSS filed an ex-parte Motion and Order for Leave to File Amended Answer and Reconventional Demand on December 29, 2016, which the trial court signed. Soon after it was served with that pleading, NISCO filed declinatory exceptions of lack of subject matter jurisdiction and insufficiency of citation and service of process; a dilatory exception of improper cumulation; a motion to vacate the order granting CPSS leave to file the AA&RD; and a motion to strike the AA&RD. CPSS opposed the exceptions and motions. The exceptions and motions came before the trial court for contradictory hearing in March 2017. After hearing argument from counsel, the trial court ruled that it would "dismiss the reconventional demand without prejudice." CPSS then filed a separate suit against NISCO in the Fourteenth Judicial District Court asserting facts identical to those contained in the AA&RD, which, it concedes, was improperly filed in this matter.[1]

         The parties appeared before the trial court again in June 2017 for a hearing on a Motion for Entry of Judgment filed by NISCO after they were unable to agree on the wording for the judgment granting NISCO's exceptions and motions. While there were initially three issues in dispute, the parties worked out two of those issues before the hearing began. After listening to argument from counsel, the trial court chose the exact wording it wanted in the judgment, which it ordered counsel for CPSS to prepare for signature. The resulting judgment was signed on June 29, 2017.[2] NISCO now appeals, asserting that:

1. The district court erred in not granting NISCO's Motion to Vacate the Ex Parte Order granting leave to file CPSS's "Amended Answer and Reconventional Demand" and not striking the "Amended Answer and Reconventional Demand" from the record.
2. The district court erred in including incorrect and misleading language in the judgment indicating that it was granting NISCO's exception of lack of jurisdiction over the principle actions in the captioned matter, when the basis of NISCO's exception, and the court's ruling in open court, was that the court ...

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