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Ulrich v. Robinson

Court of Appeals of Louisiana, First Circuit

November 1, 2018

JUSTIN ULRICH, GWEN ULRICH, RAYMOND AND PAM ALLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED
v.
KIMBERLY ROBINSON, SECRETARY LOUISIANA DEPARMENT OF REVENUE JUSTIN ULRICH, GWEN ULRICH, RAYMOND AND PAM ALLEMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED
v.
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.

          THERIOT, J.

         Kimberly 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.

         FACTS AND PROCEDURAL HISTORY

         The 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, 2007.

         During 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 part[1]:

(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, first-served basis.

         On June 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.

         Both 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.

         On 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 situated."

         On 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.[2] On November 10, 2016, the Ulrichs and the Allemans filed a motion to certify their class action.

         In a 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, 2017.[3]

         In a 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.

         ASSIGNMENTS OF ERROR

         The Department assigns the following as error:

(1) The trial court erred by certifying the class without providing the defendant an adequate opportunity to pursue discovery.
(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 constitutional challenge.
(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. 591(A).
(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 retroactive ...

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