JUSTIN ULRICH, GWEN ULRICH, RAYMOND AND PAM ALLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED
KIMBERLY ROBINSON, SECRETARY LOUISIANA DEPARMENT OF REVENUE JUSTIN ULRICH, GWEN ULRICH, RAYMOND AND PAM ALLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED
KIMBERLY ROBINSON, SECRETARY LOUISIANA DEPARMENT OF REVENUE
Appealed from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Case No. 651,
300, The Honorable Wilson Fields, Judge Presiding
Christopher K. Jones Nancy B. Gilbert Brent J. Cobb John N.
Grinton Baton Rouge, Louisiana Counsel for
Defendants/Appellants/ Relator Kimberly Robinson, Secretary
of the Louisiana Department of Revenue and the Louisiana
Department of Revenue
Antonio C. Ferachi Brandea Averett Baton Rouge, Louisiana,
Lawrence J. Centola, III Jason Z. Landry New Orleans,
Louisiana Nicole F. Gould Frey Baton Rouge, Louisiana Heidi
Mabile Gould Metairie, Louisiana D. Blayne Honeycutt Denham
Springs, Louisiana Counsel for Plaintiffs/Appellees/
Respondents Justin and Gwen Ulrich, Raymond and Pam Alleman,
individually and on behalf of all others similarly situated.
BEFORE: PETTIGREW, McCLENDON, WELCH, THERIOT, AND CHUTZ, JJ.
Robinson, Secretary of the Louisiana Department of Revenue
("the Department"), appeals the judgment of the
Nineteenth Judicial District Court ("19th
JDC") granting Justin Ulrich, Gwen Ulrich, Raymond
Alleman, and Pam Alleman's motion for class
certification. For the following reasons, we deny the
Department's writ application; reverse the trial
court's judgment certifying the class action and remand
this matter to the trial court for further proceedings
consistent with this opinion.
AND PROCEDURAL HISTORY
Ulrichs and the Allemans are Louisiana residents seeking to
challenge the constitutionality of 2015 La. Act No. 131 (eff.
June 19, 2015), amending and reenacting subsections of La.
R.S. 47:6030 relative to the solar energy systems tax credit.
Louisiana Revised Statutes 47:6030 provides for a tax credit
for Louisiana residents who purchase or lease and install a
qualified solar energy system on residential property prior
to January 1, 2018. This statute became effective on July 10,
the 2015 regular legislative session, the Louisiana
Legislature enacted Act 131, which placed certain caps on the
solar energy systems tax credits provided for in La. R.S.
47:6030(B). This amendment became effective on June 19, 2015.
As amended by Act 131, La. R.S. 47:6030 states, in relevant
(B)(1)(c) Beginning in Fiscal Year 2015-2016, the maximum
amount of tax credits for purchased systems which may be
granted by the department on any return, regardless of tax
year, shall be as follows:
(i) For tax credits claimed on returns filed on or after July
1, 2015, and before July 1, 2016, no more than ten million
dollars of tax credits shall be granted.
(ii) For tax credits claimed on returns filed on or after
July 1, 2016, and before July 1, 2017, no more than ten
million dollars of tax credits shall be granted.
(iii) For tax credits claimed on a return filed on or after
July 1, 2017, no more than five million dollars of tax
credits shall be granted.
(iv) The granting of credits shall be on a first-come,
4, 2015, fifteen days before Act 131 went into effect, the
Ulrichs purchased and installed a solar electric system into
their home. Similarly, on June 10, 2015, nine days before Act
131 went into effect, the Allemans purchased and installed a
solar electric system into their home.
the Ulrichs and the Allemans subsequently filed 2015 income
tax returns, in which they sought a solar energy systems tax
credit. Because the cap imposed by Act 131 had already been
met, the Department denied their respective tax credits. The
denial letters informed them of their right to appeal the
decision to the Louisiana Board of Tax Appeals within 60 days
of the date on the letter pursuant to La. R.S. 47:1625. The
Ulrichs' denial letter was dated August 22, 2016, while
the Allemans' denial letter was dated August 17, 2016.
September 19, 2016, the Ulrichs and the Allemans filed a
class action petition for declaratory action, seeking to have
Act 131 declared unconstitutional to the extent that it
retroactively deprived taxpayers of property rights to a
solar credit vested prior to June 19, 2015. The respective
appeals to the Louisiana Board of Tax Appeals were attached
to their petition. Both appeals to the Louisiana Board of Tax
Appeals were designated as a "class action petition to
appeal refund denial" and included the language
"individually and on behalf of all others similarly
October 31, 2016, the Department filed several exceptions
with the 19th JDC, including a dilatory exception
of lack of procedural capacity and a peremptory exception of
improper use of class action procedure. On November 10,
2016, the Ulrichs and the Allemans filed a motion to certify
their class action.
judgment signed on March 27, 2017, the trial court overruled
the Department's exceptions, including the exceptions of
lack of procedural capacity and improper use of class action
procedure. The Department subsequently filed a writ
application with this court seeking review only of the trial
court's denial of its exceptions of lack of procedural
capacity and improper use of class action procedure. The writ
was referred to this panel on December 28,
judgment signed on June 15, 2017, the trial court granted the
Ulrichs' and the Allemans' motion to certify the
class action. The class was certified as "Louisiana
taxpayers that qualified for the La. R.S. 47:6030 Solar
Credit between January 1, 2013 and June 18, 2015 and were
denied the Solar Credit due to 2015 La. Act 131." This
appeal by the Department followed.
Department assigns the following as error:
(1) The trial court erred by certifying the class without
providing the defendant an adequate opportunity to pursue
(2) The trial court erred by finding that the numerosity
requirement was satisfied even though the Plaintiffs failed
to prove the purported class members had standing to assert a
(3) The trial court also committed legal error by failing to
recognize the numerosity requirement cannot be satisfied
because the sixty-day period set forth in La. R.S. 47:1625 is
peremptive in nature and the individualized proof required to
lodge a proper appeal within the stated time period cannot be
extended through the tolling provision in La. C.C.P. art.
(4) The trial court erred in finding the typicality and
adequacy of representation requirements were satisfied
because only the named plaintiffs showed they had standing to
contest the constitutionality of Act 131 by having timely
appealed the disallowance of their tax refund by denying the
solar tax credit.
(5) The trial court erred in finding the commonality
requirement was satisfied because the Plaintiffs did not
present any evidence to the Court concerning the pertinent