CITY OF EUNICE v. CLM EQUIPMENT CO

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Docket Number

No. 86-469.

Attorney(S)

Lewis and Lolley, James R. Lewis, Seven Flagg Place, and Randy E. Olson, Lafayette, for defendant-appellant. Kearney Tate of Tate and McManus, Eunice, for plaintiff-appellee.

Judges

KNOLL, Judge.

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Smart Summary

Factual and Procedural Background

The City of Eunice filed a petition on July 25, 1985, seeking to collect unpaid sales and use taxes amounting to $3,286 from CLM Equipment Company, Inc. (CLM). The City alleged that CLM failed to remit sales taxes due on agricultural equipment sold between June and August 1979, pursuant to City Ordinance No. 246 adopted in 1962. The City claimed the City Treasurer had estimated the taxes due and sought to compel CLM to pay the delinquent taxes, interest, penalties, and court costs. The trial court found CLM liable, determining a fiduciary relationship existed and that the prescriptive period in the ordinance was inapplicable. CLM appealed the judgment.

Legal Issues Presented

Whether the trial court erred in overruling the exception of prescription raised by CLM.
Whether the trial court erred in denying CLM's motion for a directed verdict based on the City's failure to prove that the City Treasurer made the required tax assessment under the ordinance.
Whether the trial court erred in allowing the City to introduce additional evidence after resting its case.

Arguments of the Parties

Defendant-Appellant (CLM Equipment Company, Inc.)

The court improperly overruled the exception of prescription, which should have barred the City's claim.
The City failed to establish that the City Treasurer made the necessary tax assessment as required by the ordinance, warranting a directed verdict in favor of CLM.
The court improperly allowed the City to introduce further evidence after resting its case, prejudicing CLM's defense.

Plaintiff-Appellee (City of Eunice)

The opinion does not contain a detailed account of the City's specific arguments beyond the petition and procedural posture.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Norton v. Thorne, 446 So.2d 972 (La.App. 3rd Cir. 1984)	Establishes that a document attached to a brief but not introduced into evidence cannot be considered on appeal.	Used to reject CLM's attempt to introduce the ordinance via its brief since it was not part of the trial record.
Terrebonne Parish Sales v. D. S. Oilfield, 449 So.2d 589 (La.App. 1st Cir. 1984), writ denied 456 So.2d 168 (La. 1984)	Explains how municipal ordinances may be proven in court, either by certified copies or judicial notice if filed with the clerk of court.	Applied to highlight the City's failure to properly introduce or prove the ordinance in the record.
Hammons v. Parish of East Baton Rouge, 461 So.2d 1225 (La.App. 1st Cir. 1984)	Supports the requirement that ordinances be properly certified or filed to be judicially noticed.	Reinforced the necessity for certified evidence of the ordinance, which was lacking.
Klohn v. Louisiana Power and Light, 406 So.2d 577 (La. 1981)	Establishes the burden on a party relying on an ordinance to make a certified copy part of the record.	Supported the court’s refusal to consider the ordinance due to absence in the record.
Jackson v. Wal Mart Properties, Inc., 443 So.2d 3 (La.App. 3rd Cir. 1983)	Permits supplementation of the record only if the evidence was actually introduced at trial.	Used to deny the City's request to supplement the record with the ordinance since it was never formally introduced.

Court's Reasoning and Analysis

The court focused on the absence of the municipal ordinance in the trial record, which was central to the City's claim and CLM's defenses. The ordinance was neither introduced into evidence nor proven to have been filed with the clerk of court, precluding judicial notice. Without the ordinance, the court could not verify the City's taxing authority, the applicable prescriptive period, or the procedural requirements for tax assessment by the City Treasurer. The court declined to consider the ordinance attached to CLM's brief, as it is not evidence. Although the court considered allowing supplementation of the record, no indication existed that the ordinance was formally introduced at trial. Consequently, the court found the City's evidence fatally flawed and dismissed the claim for failure to prove the taxing authority.

Holding and Implications

REVERSED AND RENDERED.

The appellate court reversed the trial court's judgment and rendered a dismissal of the City's claim with prejudice due to the City's failure to prove its taxing authority by introducing the municipal ordinance into evidence. Costs of both the appeal and trial were assessed against the City of Eunice. This decision directly affects the parties by terminating the City's attempt to collect the alleged unpaid taxes but does not establish new legal precedent beyond enforcing evidentiary requirements for proving municipal ordinances in court.

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CITY OF EUNICE, PLAINTIFF-APPELLEE, v. CLM EQUIPMENT COMPANY, INC., DEFENDANT-APPELLANT.

KNOLL, Judge.

CLM Equipment Company, Inc. (CLM) appeals the judgment of the Eunice city Court finding it liable to the City of Eunice (City) for sales and use taxes collected in 1979 by CLM but never remitted to the City. The trial judge determined that there was a fiduciary relationship between CLM and the City, therefore, the prescriptive period contained in the City's Sales use ordinance (No. A-246) was inapplicable. CLM contends that the court erred: (1) when it overruled the exception of prescription; (2) in its failure to grant CLM's notion for directed verdict for the City's failure to establish that the city treasurer made the assessment of taxes as required by the City ordinance; and (3) by allowing the City to introduce further evidence after resting its case. Finding a fatal flaw in the evidence of record, we pretermit CLM's assignments of error and reverse.

FACTS

On July 25, 1985, the City filed a petition seeking to collect unpaid sales and use taxes from CLM in the sum of $3,286. It alleged that CLM failed to pay sales taxes to the City Which were due on agricultural equipment sold by CLM between June and August 1979.

The petition states that CLM is indebted to the City or sales and use taxes pursuant to Ordinance No. 246 adopted on June 26, 1962. The City further states that pursuant to its taxing authority the City Treasurer estimated the amount of taxes due, and that because CLM failed to pay the assessment, it is entitled pursuant to the ordinance to have a rule issued to CLM to show cause why it should not pay the delinquent tax, interest, penalties and court costs. The ordinance was not made part of the record.

RECORD EVIDENCE

The City's claim against CLM, as well as CLM's contentions regarding prescription and the proper method for the estimation of tax are inextricably attached to the municipal ordinance. Notwithstanding that importance, the record does not contain the ordinance. Although CLM attached a copy of the ordinance to its brief, it does not constitute evidence and can not be considered on appeal. Norton v. Thorne, 446 So.2d 972 (La.App. 3rd Cir. 1984).

A municipal or parochial ordinance may be proven in court; (1) by a copy duly certified at trial by the official, officer or employee who had custody of it (unless the original record is brought to court and identified); or (2) courts of record can take judicial notice of municipal or parochial ordinances within their respective jurisdictions whenever certified copies of such ordinances have been filed with the clerk of court. LSA-R.S. 13:3711, and 13:3712(A) and (B); Terrebonne Parish Sales v. D. S. Oilfield, 449 So.2d 589 (La.App. 1st Cir. 1984), writ denied, 456 So.2d 168 (La. 1984); see also Hammons v. Parish of east of baton Rouge, Etc., 461 So.2d 1225 (La.App. 1st Cir. 1984). in either event it is incumbent on the party relying on the ordinance to make a certified copy of it part of the record. Klohn v. Louisiana Power and Light, 406 So.2d 577 (La. 1981). In the case before us we can not consider the ordinance because it was neither introduced into evidence nor proven that it was filed with the clerk of court.

Under LSA-C.C.P. Art. 2164 an appellate court shall render any judgment on appeal which, is just, legal, and proper upon the record on appeal. The absence of the ordinance presents us with two problems that we cannot resolve: (1) because of the City's failure to, make the ordinance a part of the record, there is no evidence to establish the municipal taxing power it claims; and (2) without the ordinance we are unable to examine and determine the prescriptive period, if any, and any requirements that their assessment must be made by the municipal treasurer.

Although we considered allowing the City to supplement the record, such remedial action is only proper when it has been shown that the item of evidence was actually introduced at trial. Jackson v. Wal Mart Properties, Inc., 443 So.2d 3 (La.App. 3rd Cir. 1983). In the present case there is no indication that the ordinance was ever formally introduced. Therefore, we are constrained to dismiss the City's case against CLM for failure to prove its taxing authority, which further prevents us from correctly determining CLM's assignments of error.

For the foregoing reasons, the judgment, of the trial court is reversed and set aside, and judgment is rendered dismissing the City's claim with prejudice. Costs of this appeal and the trial court are assessed to the City of Eunice.

REVERSED AND RENDERED.