NEWELL NORMAND, SHERIFF AND EX-OFFICIO TAX COLLECTOR FOR THE PARISH OF JEFFERSON
MR. MUDBUG, INC. AND MICHAEL J. MAENZA
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 742-546, DIVISION
"C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, JOSEPH P. LOPINTO, III,
SHERIFF AND EX-OFFICIO TAX COLLECTOR FOR THE PARISH OF
JEFFERSON, SUCCESSOR IN OFFICE TO FORMER JEFFERSON PARISH
SHERIFF NEWELL NORMAND KENNETH C. FONTE
COUNSEL FOR DEFENDANT/APPELLANT, MR. MUDBUG, INC. CHARLES V.
CUSIMANO, III MICHAEL G. GAFFNEY CHRISTOPHER M. GAFFNEY
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
G. GRAVOIS JUDGE
Mr. Mudbug, Inc. ("Mr. Mudbug"), a business
operating in Jefferson Parish, appeals a January 28, 2019
trial court judgment in favor of Newell Normand, Sheriff and
Ex-Officio Tax Collector for the Parish of Jefferson
("Collector"), finding Mr. Mudbug liable to the
Collector for use taxes for the tax periods January 2007
through June 2009. On appeal, Mr. Mudbug argues that the
trial court erred in ruling that Mr. Mudbug was precluded
from asserting any defenses to the Collector's Rule for
Taxes at the trial on the merits of the matter. Mr. Mudbug
asks that the judgment under review be reversed and the
matter be remanded for a trial on the merits of the matter
wherein it may assert its affirmative defenses to the
Collector's Rule for Taxes.
following reasons, after benefit of review of the full
appellate record and a previous writ application filed with
this Court, we find merit to Mr. Mudbug's arguments on
appeal. Accordingly, the trial court's January 28, 2019
judgment is hereby vacated and the matter is remanded to the
trial court for further proceedings consistent with this
16, 2014, the Collector sent Mr. Mudbug a Notice of
Delinquent Taxes and Civil Enforcement. On June 26, 2014, Mr.
Mudbug responded to the Notice, claiming that the taxes in
question had prescribed. On September 17, 2014, the Collector
filed in the Twenty-fourth Judicial District Court a Rule for
Taxes, a summary proceeding, against Mr. Mudbug and Michael
J. Maenza,  as authorized by La. R.S. 47:337.61.
Therein, the Collector alleged that Mr. Mudbug had failed to
remit use taxes during the monthly tax periods from January
2006 through June 2009, inclusive. The Rule additionally
claimed that Mr. Mudbug was liable to the Collector for
statutory interest, penalties, attorney's fees, and
costs. The petition attached a two-page "Case
Summary" showing a total balance due of $99, 289.79, as
well as an affidavit from the Collector's Office as
required by La. R.S. 47:337.61.
the requirements of La. R.S. 47:337.61(2), Mr. Mudbug filed
Exceptions of Vagueness and Prescription and
Answer/Opposition to Rule with Affirmative Defenses,
detailing ten affirmative defenses to the Rule. The exception of
prescription argued that the taxes sought had all prescribed
under the three-year prescriptive periods of La. Const. art.
VII, §16 and La. R.S. 33:2718.4, again claiming that the
taxpayers "have not heard from the Parish on this matter
in almost 4 years."
events of "almost 4 years" ago referred to by Mr.
Mudbug in its Answer began when the Collector sent Mr. Mudbug
a proposed use tax assessment on September 22, 2010. On
October 11, 2010, Mr. Mudbug protested the proposed
assessment and requested a hearing before the Collector.
According to the pleadings, a hearing on the protest was held
on October 28, 2010. On October 29, 2010, a Notice of
Delinquent Taxes - Formal Assessment was issued to Mr. Mudbug
by the Collector under La. R.S. 47:337.51, which was
delivered to Mr. Mudbug on November 1, 2010. The Notice of
Delinquent Taxes - Formal Assessment, which complied with
statutory requirements in effect at the time, informed Mr.
Mudbug that it had three options, one of which must be
exercised within 60 calendar days: pay the assessment in
full, request a hearing with the Collector, or pay the
assessment under protest in accordance with La. R.S.
47:337.63. The record indicates that the parties were in
contact in November of 2010 several times, conducting further
business regarding the formal assessment.
December 28, 2010, Mr. Mudbug hand delivered its request for
a hearing, as per the October 29, 2019 notice of formal
assessment, to the Collector. The Collector's records
contain a letter to Mr. Mudbug's counsel dated January 4,
2011, stating that it found Mr. Mudbug's request for a
hearing untimely, but that it would schedule a meeting
between the parties on January 26, 2011. However, Mr. Mudbug
has since maintained, in both its correspondence to the
Collector after receiving the Notice of Delinquent Taxes in
June of 2014, and after being served with the Rule for Taxes
in September of 2014, and in its answer and exceptions to the
Rule for Taxes, that it had not received any further
communication from the Collector after it hand delivered its
request for a hearing on December 28, 2010.Both Ms. Jeannine
Theriot's testimony at a later hearing on the exception
of prescription and the Collector's records confirm that
Mr. Mudbug did not appear for the January 26, 2011 meeting
offered in the January 4, 2011 letter, nor did Mr. Mudbug
contact the Collector's Office in any way regarding the
proposed meeting, despite earlier regular correspondence
between the parties from the date of the proposed assessment
(September 22, 2010). The record as a whole indicates that
there was no further contact between the parties until June
of 2014, "almost 4 years" later, when Mr. Mudbug
received the Collector's Notice of Delinquent Taxes and
Civil Enforcement, prior to the Rule for Taxes being filed on
September 17, 2014, as previously stated.
28, 2016, almost two years after the Rule for Taxes was
filed, the Collector filed a Motion to Set Hearing on the
Rule for Taxes, in accordance with La. R.S.
47:337.61. By joint order, the exceptions of
vagueness and prescription were bifurcated from the issues
raised in the answer and affirmative defenses, and the matter
was set for a hearing on August 1, 2016. However, on that
date, the parties held a status conference instead, and the
matter was set for trial on the merits on September 20,
2016. On joint motion of the parties, Mr.
Mudbug's exceptions of vagueness and prescription were
set for hearing on September 9, 2016. The Collector filed an
opposition to the exceptions.
Mudbug withdrew its exception of vagueness prior to the
hearing. The parties appeared for a hearing on September 9,
2016 solely on the exception of prescription. The court
allowed the parties to file post-hearing memoranda. The trial
court rendered judgment on October 26, 2016, denying Mr.
Mudbug's exception of prescription.
Mudbug thereafter filed an application for supervisory writs
with this Court seeking this Court's supervisory review
of the trial court's denial of its exception of
prescription. On April 4, 2017, this Court granted the writ
in part and denied the writ in part, finding that the taxes
from 2006 were prescribed, but that the taxes from January
2007 through June 2009 were not prescribed. Normand v.
Mr. Mudbug, Inc. et al, 16-742 (La.App. 5 Cir. 4/4/17)
(unpublished writ decision). Thereafter, the record shows no
activity took place in this case for approximately fifteen
months until July 26, 2018, when the Collector filed a Motion
to Set for Hearing on its Rule for Taxes. The Rule was heard
on January 28, 2019, with the trial court rendering judgment
in favor of the Collector, specifically ...