Joseph P. Lopinto, III, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson Versus travelocity.com Lp (n/K/A Tvl, Lp) and Site 59.com LLC The Priceline Group Inc. (f/K/A priceline.com Incorporated and N/K/A Booking Holdings Inc.), Travelweb LLC and priceline.com LLC priceline.com LLC, Travelweb LLC, Trip Network, Inc., Orbitz, LLC, Internetwork Publishing Corp. (d/B/A lodging.com), Expedia, LLC, the Priceline Group Inc. (f/K/A priceline.com Incorporated, K/N/A Booking Holdins Inc.) Trip Network, Inc., Orbitz, LLC, Internetwork Publishing Corp. (d/B/A lodging.com), Expedia, Inc. (Wa), hotels.com Lp, Hotwire, Inc. and Egencia, LLC ( 2021 )


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  • JOSEPH P. LOPINTO, III, SHERIFF AND                     NO. 21-CA-132
    EX-OFFICIO TAX COLLECTOR FOR THE
    PARISH OF JEFFERSON                                     FIFTH CIRCUIT
    VERSUS                                                  COURT OF APPEAL
    EXPEDIA, INC. (WA), ET AL.                              STATE OF LOUISIANA
    ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
    PARISH OF JEFFERSON, STATE OF LOUISIANA
    NO. 790-815, DIVISION "K"
    HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
    December 23, 2021
    JUDE G. GRAVOIS
    JUDGE
    Panel composed of Judges Jude G. Gravois,
    Robert A. Chaisson, and Hans J. Liljeberg
    AFFIRMED
    JGG
    RAC
    HJL
    COUNSEL FOR PLAINTIFF/APPELLANT,
    JOSEPH P. LOPINTO, III, SHERIFF AND EX-OFFICIO TAX COLLECTOR
    FOR THE PARISH OF JEFFERSON
    Drew M. Talbot
    Alexandria E. Seay
    COUNSEL FOR DEFENDANT/APPELLEE,
    EXPEDIA, INC. (WA), HOTELS.COM, LP, HOTWIRE, INC., EGENCIA, LLC,
    TRIP NETWORK, INC., ORBITZ, LLC, INTERNETWORK PUBLISHING
    CORP. (D/B/A LODGING.COM), THE PRICELINE GROUP INC. (F/K/A
    PRICELINE.COM INCORPORATED, K/N/A BOOKING HOLDINS INC.),
    TRAVELWEB, LLC, AND PRICELINE.COM LLC
    Edward D. Wegmann
    Marjorie A. McKeithen
    Matthew A. Mantle
    Allison B. Kingsmill
    COUNSEL FOR DEFENDANT/APPELLEE,
    TRIP NETWORK, INC., ORBITZ, LLC, INTERNETWORK PUBLISHING
    CORP. (D/B/A LODGING.COM), EXPEDIA, INC. (WA), HOTELS.COM LP,
    HOTWIRE, INC. AND EGENCIA, LLC
    Winstol D. Carter, Jr.
    Elizabeth B. Herrington
    COUNSEL FOR DEFENDANT/APPELLEE,
    TRAVELOCITY.COM LP (N/K/A TVL, LP) AND SITE 59.COM LLC
    Kelly E. Ransom
    COUNSEL FOR DEFENDANT/APPELLEE,
    THE PRICELINE GROUP INC. (F/K/A PRICELINE.COM INCORPORATED
    AND N/K/A BOOKING HOLDINGS INC.), TRAVELWEB LLC AND
    PRICELINE.COM LLC
    Anne Marie Seibel
    Tiffany Degruy
    GRAVOIS, J.
    Plaintiff/appellant, Joseph P. Lopinto, III, in his official capacity as the duly
    elected Sheriff of Jefferson Parish and the Ex-Officio Tax Collector for the Parish
    of Jefferson, appeals the trial court’s September 16, 2020 judgment which granted
    the motion for summary judgment filed by defendants, four groups of online travel
    companies, and which denied the cross-motion for partial summary judgment filed
    by plaintiff, finding that defendants did not owe plaintiff sales and occupancy taxes
    on certain amounts charged by defendants to consumers to facilitate online
    reservations between Jefferson Parish hotels and the consumers. Plaintiff also
    appeals the trial court’s June 12, 2019 judgment which dismissed his Louisiana
    Unfair Trade Practices Act claim. For the following reasons, we affirm.
    FACTS AND PROCEDURAL HISTORY
    On January 2, 2019, plaintiff/appellant, Joseph P. Lopinto, III, in his official
    capacity as the duly elected Sheriff of Jefferson Parish and the Ex-Officio Tax
    Collector for the Parish of Jefferson (the “Sheriff”), filed suit against
    defendants/appellees, four groups of online travel companies (the “OTCs”)1 who
    1
    Named as defendants in the petition were four distinct groups of online travel
    companies, or OTCs. The four distinct groups consisted of: 1) the Expedia defendants; 2) the
    Orbitz defendants; 3) the Priceline defendants; and 4) the Travelocity defendants; and included
    their respective subsidiaries or indirect subsidiaries.
    The Expedia defendants were identified as: Expedia, Inc. (WA); Hotels.com, L.P.;
    Hotwire, Inc.; and Egencia, LLC. They are affiliated business entities through the common
    corporate parent, Expedia, Inc., a Delaware corporation.
    The Orbitz defendants were identified as: Trip Network, Inc.; Orbitz, LLC; and
    Internetwork Publishing Corp. (d/b/a Lodging.com). These companies are indirect subsidiaries
    of Orbitz Worldwide, Inc. Expedia, Inc. (DE) has acquired Orbitz Worldwide, Inc.
    The Priceline defendants were identified as: The Priceline Group, Inc. (f/k/a
    priceline.com Incorporated); Priceline.com LLC; and Travelweb, LLC.
    The Travelocity defendants were identified as: TVL LP (f/k/a Travelocity.com, LP); and
    Site59.com LLC. TVL LP and Site59.com, LLC are indirect subsidiaries of Sabre Holdings
    Corporation. Expedia, Inc. (DE) has acquired the Travelocity brand and other associated assets
    from Sabre Corporation.
    The petition also named Destination Management, Inc. as a defendant, along with “Does
    1 Through 1000, Inclusive” as unknown defendants being sued by such fictitious names.
    Destination Management, Inc. and the fictitious defendants “Does 1 Through 1000, Inclusive”
    are not involved in this appeal.
    21-CA-132                                       1
    facilitated online reservations for hotel rooms located in Jefferson Parish between
    consumers and hotels. The petition alleged that the OTCs breached their statutory
    obligations as “dealers” operating in Jefferson Parish to remit Jefferson Parish
    sales and occupancy taxes to the Sheriff that were charged to and collected from
    the OTCs’ customers, such taxes being due and owing to the Sheriff under relevant
    tax ordinances properly enacted and levied by the relevant taxing authorities within
    Jefferson Parish, as further described below. Specifically, the Sheriff alleged that
    the subject taxes were due and owing to the Sheriff “on taxable sales of services in
    the form of furnishing sleeping rooms to transient guests,”2 and that the OTCs were
    “all engaged in the business of furnishing sleeping rooms under the relevant
    definitions of both the sales tax and the occupancy tax.” The Sheriff’s suit seeks
    taxes from the OTCs going back almost 20 years.
    The petition alleged that under what is commonly known as the “merchant
    model,” the OTCs entered into contracts with the individual lodging places
    wherein the parties agreed on a “wholesale” price for the rooms and the OTCs
    acquired the right to display, offer, and facilitate reservations of the rooms to the
    public at a higher “retail” rate, with the OTCs being given broad discretion in
    establishing the higher “retail” rate that they ultimately charged to consumers. The
    petition further alleged that the OTCs did not separately disclose to the consumer
    (1) the “wholesale” rate the hotel charges for the room, (2) the amount retained by
    the OTCs from the amount collected from the consumer for its travel-related
    services and fees, and (3) the amount of sales and/or occupancy taxes charged to
    2
    According to the petition, the Parish of Jefferson imposes a sales and use tax which is
    levied on hotel/motel room rentals at the aggregate price of 3.75%, consisting of a 1.50% sales
    tax levied by the Jefferson Parish Council, a 2.00% sales tax levied by the Jefferson Parish
    School Board, and a 0.25% sales tax levied by the Law Enforcement District. Additionally, the
    City of Kenner levies a 2.00% Airport District tax. In addition to Jefferson Parish sales taxes,
    the Parish of Jefferson levies and imposes an occupancy tax on hotel/motel room rentals at the
    aggregate rate of 3.00% for room rentals on the East Bank of Jefferson Parish, and at the
    aggregate rate of 2.00% for room rentals on the West Bank of Jefferson Parish.
    21-CA-132                                       2
    the consumer as a result of the transaction. The petition alleged that the OTCs
    have total control over the price they offer the lodging to the consumer, and
    therefore control the profit they make from their “mark-up.” The petition further
    alleged that the OTCs “sell” rooms to the consumers, and collect payments,
    including sales and occupancy taxes, from the consumers at the time of booking,
    but do not remit the full sales and occupancy tax amounts collected directly to the
    Sheriff. The petition asserted that the OTCs did not maintain documentation that
    any amounts they collected from the consumers in sales and occupancy taxes are
    paid to the Sheriff, nor did the OTCs properly file regular, periodic Jefferson
    Parish sales and occupancy tax/returns/reports, as required by statutory law for all
    “dealers.” The petition further asserted that the OTCs are collecting sales and
    occupancy taxes from consumers on the “retail” rate charged to consumers, but are
    not reporting and remitting those taxes to the Sheriff, thereby depriving the Sheriff
    and the taxing authorities in Jefferson Parish of the full amounts due and owing to
    them from each sale of Jefferson Parish lodging to the consumers.
    The petition goes on to assert eight specific causes of action or claims for
    relief:
    Claim One: Declaratory Judgment Pursuant to La. C.C.P. art. 1871 – The
    Sheriff seeks a declaration of rights and/or duties with respect to all
    defendants as to, among other things, whether the OTCs owe a duty, under
    law, to collect and remit sales and occupancy taxes from consumers who
    allegedly purchase from the OTCs the right to occupy lodging in Jefferson
    Parish, whether the sales and occupancy taxes are based on the “retail” room
    rate, including any “fees” and/or “mark-ups” charged by the OTCs, and
    whether the OTCs, as “dealers,” have failed to fulfill their statutory duties
    under law to remit sales and occupancy taxes directly to the Sheriff;
    Claim Two: Violations of Uniform Local Sales Tax Code – The Sheriff
    alleges that the OTCs are obligated under La. R.S. 47:337.17 and La. R.S.
    47:337.18 to collect Jefferson Parish sales and occupancy taxes on lodging
    and to remit such taxes to the Sheriff, and seeks recovery of the taxes which
    are allegedly owed, plus penalties and interest under the relevant statutory
    and ordinal provisions;
    Claim Three: Violation of State Law and Constitution Ancillaries – The
    Sheriff alleges that the OTCs are liable for the sales and occupancy taxes
    21-CA-132                                     3
    owed to the Sheriff under relevant sections of the Uniform Local Sales Tax
    Code (La. R.S. 47:337.1, et seq.);
    Claim Four: Louisiana Unfair Trade Practices Act (“LUTPA”) – The
    Sheriff seeks recovery of unpaid sales and occupancy taxes from the OTCs
    for alleged use of “unfair and deceptive methods, acts and practices” in
    violation of LUTPA, La. R.S. 51:1405;
    Claim Five: Unjust Enrichment – The Sheriff alleges that the OTCs retain
    sales and occupancy tax monies due and owing to the Sheriff without
    justification, causing Jefferson Parish to become impoverished and unjustly
    enriching the OTCs;
    Claim Six: Imposition of Constructive Trust – The Sheriff alleges the OTCs
    were in the possession and control of and failed to remit sales and occupancy
    taxes collected from consumers, and that such taxes are due and owing as a
    “constructive trustee” for the benefit of Jefferson Parish;
    Claim Seven: Breach of Fiduciary Duty – The Sheriff alleges that the OTCs
    collected sales and occupancy taxes from consumers, thereby creating a
    “fiduciary duty” owed to the Sheriff and Jefferson Parish for the taxes due
    and owing, which duty has allegedly been breached by the OTCs by their
    alleged failure to pay sales and occupancy taxes owed to the Sheriff; and
    Claim Eight: Summary Determination of Damages – The Sheriff alleges that
    the OTCs owe restitution and must disgorge the taxes due and owing to the
    Sheriff, plus penalties, interest, and reasonable attorneys’ fees pursuant to
    La. R.S. 47:337.13.1.
    The OTCs filed answers to the petition, first of all denying that the “fees”
    portions of the subject transactions were taxable “sales of services” under the
    Uniform Local Sales Tax Code (La. R.S. 47:337.1, et seq.). They further denied
    that they were “dealers” under said Tax Code who were responsible for collecting
    and remitting taxes to the Sheriff. Defendants also filed exceptions of no right of
    action, no cause of action, and prescription, as well as affirmative defenses to the
    allegations in the Sheriff’s petition.
    Defendants also collectively filed a motion for judgment on the pleadings
    with supporting memorandum regarding Claims Four through Eight of the
    Sheriff’s petition. The Sheriff filed an opposition thereto, to which the OTCs
    replied. The motion for judgment on the pleadings was heard on May 29, 2019.
    The trial court took the matter under advisement and rendered judgment thereon on
    June 12, 2019. The judgment granted the motion in part, dismissing Claim Four:
    21-CA-132                                 4
    Louisiana Unfair Trade Practices Act (“LUTPA”), Claim Five: Unjust
    Enrichment, and Claim Eight: Summary Determination of Damages. The
    judgment further denied the motion in part with respect to Claim Six: Imposition of
    Constructive Trust, and Claim Seven: Breach of Fiduciary Duty.
    On May 27, 2020, the OTCs collectively filed a motion for summary
    judgment as to liability concerning the remaining claims (Claims One, Two, Three,
    Six, and Seven), arguing that the “fees” collected by the OTCs for facilitating the
    online hotel reservations for consumers in Jefferson Parish were not taxable “sales
    of services” under the Uniform Local Sales Tax Code, specifically under La. R.S.
    47:301(14)(a). Due to the confidential and proprietary information regarding the
    OTCs’ business practices contained therein, the parties agreed that the motion for
    summary judgment and the evidence attached thereto would be sealed. On June
    24, 2020, the Sheriff filed a cross-motion for partial summary judgment on
    liability, also supported by sealed evidence. Defendants filed an opposition to the
    Sheriff’s cross-motion for partial summary judgment on August 4, 2020, as well as
    objections and responses to the Sheriff’s statement of uncontested material facts.
    On August 14, 2020, the parties filed additional replies and responses. The
    motions for summary judgment were heard on August 19, 2020.
    On September 16, 2020, the trial court rendered judgment in favor of the
    OTCs, granting their motion for summary judgment and denying the Sheriff’s
    cross-motion for partial summary judgment, and dismissing the Sheriff’s petition
    against the OTCs as to the remaining claims with prejudice. The trial court issued
    reasons for judgment that same day. Therein, the trial court found that the “fees”
    collected by the OTCs for facilitating the hotel reservations were not taxable “sales
    of services” as per the Uniform Local Sales Tax Code. The trial court further held
    that the OTCs were not “dealers” under said Tax Code. The Sheriff filed a petition
    21-CA-132                                 5
    for a suspensive appeal on October 15, 2020, which was granted on October 20,
    2020.
    On appeal, the Sheriff argues four assignments of error:
    1) The district court erred by ignoring the controlling jurisprudence from the
    Louisiana Supreme Court in Normand v. Wal-Mart.com USA, LLC, and
    by failing to find that the OTCs contractually assumed the obligations of
    Jefferson Parish hotels, as “dealers,” to properly charge, collect and remit
    sales and occupancy taxes to the Sheriff;
    2) The district court erred by ignoring the controlling jurisprudence from
    this Court in Lerner NY., Inc. v. Normand, and permitting the OTCs to
    charge and collect sales and occupancy taxes from hotel room consumers
    while imposing none of the corresponding dealer or fiduciary obligations
    on the OTCs;
    3) The district court erred by finding that the Sheriff’s petition failed to state
    a cause of action against the OTCs under the Louisiana Unfair Trade
    Practices Act;3 and
    4) The district court erred by determining that the OTCs are not “dealers”
    under Louisiana statutory law.
    Appellees, the OTCs, urge in brief that as the Sheriff failed to address or
    argue on appeal the portion of the trial court’s judgment that found that the “fees”
    retained by the OTCs for facilitating hotel reservations were not taxable “sales of
    services” under the Uniform Local Sales Tax Code, this Court should affirm the
    judgment under review without reaching any of the Sheriff’s arguments regarding
    the OTCs’ alleged status as “dealers” under said Tax Code, as the non-taxable
    status of the transactions is the threshold issue and provides this Court with a basis
    to affirm the judgment without reaching the Sheriff’s arguments on appeal.
    The Sheriff, in his reply brief, states that the threshold issue is whether the
    OTCs breached their fiduciary duty to the Sheriff, because the OTCs allegedly
    collected taxes due to the Sheriff and failed to remit them to the Sheriff. The
    Sheriff also argues that the issue of whether the “fees” collected by the OTCs are
    3
    The Sheriff’s LUTPA claim was dismissed in the trial court’s June 12, 2019 judgment
    on defendants’ motion for judgment on the pleadings, wherein the court held that the Sheriff
    “fails to state a cause of action under the Louisiana Unfair Trade Practices Law … .”
    21-CA-132                                      6
    taxable “sales of services” under La. R.S. 47:301(14)(a) is embedded within the
    larger context of Assignment of Error No. 4 in its brief on the issue of whether the
    OTCs are “dealers” under the Uniform Local Sales Tax Code. Thus, the Sheriff
    argues that the issue of whether the “fees” charged by the OTCs under the
    “merchant model” used by the OTCs in the transactions in question are taxable
    “sales of services” under La. R.S. 47:301(14)(a) is indeed before this Court for
    review in this appeal.
    ANALYSIS
    After an opportunity for adequate discovery, a motion for summary
    judgment shall be granted if the motion, memorandum, and supporting documents
    show that there is no genuine issue as to material fact and that the mover is entitled
    to judgment as a matter of law. La. C.C.P. art. 966(A)(3). A genuine issue of
    material fact is one as to which reasonable persons could disagree; if reasonable
    persons could reach only one conclusion, there is no need for trial on that issue and
    summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.
    4/3/09), 
    9 So.3d 780
    , 784.
    The burden of proof rests with the mover. Nevertheless, if the mover will
    not bear the burden of proof at trial on the issue that is before the court on the
    motion for summary judgment, the mover’s burden on the motion does not require
    him to negate all essential elements of the adverse party’s claim, action, or defense,
    but rather to point out to the court the absence of factual support for one or more
    elements essential to the adverse party’s claim, action, or defense. The burden is
    on the adverse party to produce factual support sufficient to establish the existence
    of a genuine issue of material fact or that the mover is not entitled to judgment as a
    matter of law. La. C.C.P. art. 966(D)(1).
    Appellate courts review summary judgments de novo using the same criteria
    applied by trial courts to determine whether summary judgment is appropriate.
    21-CA-132                                   7
    Pizani v. Progressive Ins. Co., 98-225 (La. App. 5 Cir. 9/16/98), 
    719 So.2d 1086
    ,
    1087. A de novo review or an appeal de novo is an appeal in which the appellate
    court uses the trial court’s record, but reviews the evidence and law without
    deference to the trial court’s rulings. Wooley v. Lucksinger, 06-1140 (La. App. 1
    Cir. 12/30/08), 
    14 So.3d 311
    , 352; Sarasino v. State through Department of Public
    Safety and Corrections, 16-408 (La. App. 5 Cir. 3/15/17), 
    215 So.3d 923
    , 927.
    The decision as to the propriety of a grant of a motion for summary judgment must
    be made with reference to the substantive law applicable to the case. Muller v.
    Carrier Corp., 07-770 (La. App. 5 Cir. 4/15/08), 
    984 So.2d 883
    , 885.
    The substance of a transaction, not its form, controls for the purpose of
    classifying a transaction as taxable or not. Am. Multi-Cinema, Inc. v. Normand,
    18-488 (La. App. 5 Cir. 4/3/19), 
    268 So.3d 1167
    , 1172, citing J & B Pub. Co. of
    La., Inc. v. Secretary, La. Dept. Rev. & Taxation, 34,105 (La. App. 2 Cir.
    12/15/00), 
    775 So.2d 1148
    .
    In Lerner New York, Inc. v. Normand, 19-350 (La. App. 5 Cir. 12/26/19),
    
    288 So.3d 242
    , 248-49, writ denied, 20-00162 (La. 5/1/20), 
    295 So.3d 939
    , and
    writ denied, 20-00234 (La. 5/1/20), 
    295 So.3d 944
    , this Court set forth the
    fundamental principles of statutory interpretation:
    It is a fundamental principle of statutory interpretation that
    when a “law is clear and unambiguous and its application does not
    lead to absurd consequences, the law shall be applied as written, and
    no further interpretation may be made in search of the intent of the
    legislature.” La. C.C. art. 9, McLane Southern, Inc. v. Bridges, 11-
    1141 (La. 1/24/12), 
    84 So.3d 479
    , 483, rehearing denied 3/9/12. This
    principle applies to tax statutes. 
    Id.
     Words of a law must be given
    their generally prevailing meaning. La. C.C. art. 11. When the words
    of a law are ambiguous, their meaning must be sought by examining
    the context in which they occur and the text of the law as a whole. La.
    C.C. art. 12. The meaning of words or phrases may be ascertained by
    the words and phrases with which they are associated. Caldwell v.
    Janssen Pharm., Inc., 2012-2447 (La. 1/28/14), 
    144 So.3d 898
    , 908,
    citing Pumphrey v. City of New Orleans, 05-0979 (La. 4/4/06), 
    925 So.2d 1202
    , 1211.
    21-CA-132                                 8
    Further, in Am. Multi-Cinema, Inc. v. Normand, 18-487 (La. App. 5 Cir.
    3/27/19), 
    267 So.3d 197
    , 200, this Court discussed the standards for reviewing
    taxing statutes:
    Taxing statutes must be strictly construed against the taxing
    authority. Goudchaux/Maison Blanche, Inc. v. Broussard, 
    590 So.2d 1159
    , 1161 (La. 1991). Where a tax statute is susceptible of more
    than one reasonable interpretation, the construction favorable to the
    taxpayer is adopted. Id.; Cleco Evangeline, LLC v. La. Tax Comm’n,
    01-2162 (La. 4/3/02), 
    813 So.2d 351
    , 356.
    Furthermore, words defining a thing to be taxed should not be
    extended beyond their clear import. Cleco, 813 So.2d at 355. Absent
    evidence to the contrary, the language of the statute itself must clearly
    and unambiguously express the intent to apply to the property in
    question. Unless the words imposing the tax are expressly in the
    statute, the tax cannot be imposed. 
    Id.
    In the instant case, the parties agree that the summary judgment procedure is
    appropriate to be used herein, since there is no genuine issue as to material fact,
    and this matter hinges upon statutory interpretation of the relevant taxing statutes.
    On appeal, this Court must decide whether the trial court erred in its
    September 16, 2020 judgment in granting the motion for summary judgment in
    favor of the OTCs and in denying the cross-motion for partial summary judgment
    filed by the Sheriff. The threshold issue in connection therewith is whether under
    the Uniform Local Sales Tax Code, additional taxes are due to the Sheriff on the
    “fees” portions of the transactions between the OTCs and consumers for
    facilitating hotel reservations in Jefferson Parish for the consumers. Resolution of
    this issue is dependent on whether the “fees” retained by the OTCs in each
    transaction are proceeds of taxable “sales of services” under La. R.S.
    47:301(14)(a). We must also decide whether the OTCs are “dealers” under the
    Uniform Local Sales Tax Code. Finally, we must decide whether the trial court
    properly dismissed the Sheriff’s alleged LUTPA claim in its June 12, 2019
    judgment on defendants’ motion for judgment on the pleadings.
    21-CA-132                                 9
    We will address the Sheriff’s assignments of error through discussion,
    analysis, and resolution of the issues presented thereby, as set forth below.
    First issue: Did the OTCs perform taxable “sales of services”?
    La. R.S. 47:302 – Imposition of Tax, states in pertinent part:
    C. (1) There is hereby levied a tax upon all sales of services, as
    herein defined, in this state, at the price of two percent of the
    amounts paid or charged for such services.
    (2) The tax levied in this Section shall be collected from the
    dealer, as defined herein, shall be paid at the time and in the
    manner hereinafter provided, and shall be in addition to all
    other taxes, whether levied in the form of excise, license, or
    privilege taxes, and shall be in addition to taxes levied under
    the provisions of Chapter 3 of Subtitle II of this Title.
    (Emphasis added.)
    Thus, this statute contemplates two things: first, that only the specifically defined
    “sales of services” are taxable, and second, that the “dealer,” who is a party to the
    taxable transaction, is the party responsible for remitting the taxes collected to the
    Sheriff. See Normand v. Wal-Mart.com USA, LLC, 19-00263 (La. 1/29/20), ---
    So.3d ----, 
    2020 WL 499760
    .
    Only those services defined as “sales of services” pursuant to La. R.S.
    47:301(14) are taxable. Normand v. Cox Communications Louisiana, LLC, 14-563
    (La. App. 5 Cir. 12/23/14), 
    167 So.3d 156
    , 162, writ denied, 15-0158 (La.
    4/10/15), 
    163 So.3d 815
    , citing La. R.S. 47:302(C) and Intracoastal Pipe Service,
    Co., Inc. v. Assumption Parish Sales & Use Tax Dep’t, 
    558 So.2d 1296
    , 1298 (La.
    App. 1 Cir. 1990), writ granted on other grounds, 
    563 So.2d 863
     (La. 1990).
    La. R.S. 47:301(14)(a) provides:
    (14) “Sales of services” means and includes the following:
    (a) The furnishing of sleeping rooms, cottages or cabins by
    hotels.
    (Emphasis added.)
    21-CA-132                                   10
    Prior to the 2016 legislative amendment to the statute, La. R.S. 47:301(6)(a)
    defined a “hotel” as “any establishment engaged in the business of furnishing
    sleeping rooms, cottages or cabins to transient guests, where such establishment
    consists of six or more sleeping rooms, cottage or cabins at a single business
    location.”
    In 2016, the Legislature amended and expanded the definition of “hotel,”
    found in La. R.S. 47:301(6)(a), to include the following, in pertinent part:
    (6)(a) “Hotel” means and includes any establishment or person
    engaged in the business of furnishing sleeping rooms, cottages,
    or cabins to transient guests, where such establishment consists
    of sleeping rooms, cottages, or cabins at any of the following:
    (i) A single business location.
    (ii) A residential location, including but not limited to a
    house, apartment, condominium, camp, cabin, or other
    building structure used as a residence.
    (iii) For purposes of this Chapter, hotel shall not mean or
    include any establishment or person leasing apartments or
    single family dwelling on a month-to-month basis.
    Jefferson Parish imposes a local sales tax on sales, leases, and rentals of
    tangible personal property and on the “sales of services.” Jefferson Parish Code of
    Ordinances, Ch. 35, Art. II, Sections 35-22, 35-23, 35-24, 35-24.1. Jefferson
    Parish has adopted by reference the definitions set forth in La. R.S. 47:301. 
    Id.,
    Section 35-17.
    The evidence provided in the summary judgment motions described the
    OTCs’ transaction structure with the hotels generally as follows.4
    The OTCs allow consumers to make travel arrangements, including hotel
    reservations, through their websites under what is commonly known as the
    “merchant model.” Typically, under this model, the OTCs enter into contracts
    4
    See generally, the affidavit of Silvia Camarota, Senior Director, Market Management,
    of the Expedia defendants, and the affidavit of Mark Koehler, Senior Vice President, Hotels, for
    priceline.com. Both affidavits were attached to the OTCs’ motion for summary judgment.
    21-CA-132                                      11
    with individual hotels (or hotel chains) which allow the OTCs to facilitate prepaid
    reservations of the respective hotel’s rooms through the OTCs’ websites. The
    hotels themselves remain the operators of their respective hotels. The contracts
    allow the OTCs to publish information provided by the hotels to the OTCs on the
    OTCs’ websites and to facilitate travel reservations at the hotels. The hotels
    determine the rental rates at which they will furnish rooms to travelers who place
    reservations through the OTCs. The hotels can typically increase or decrease the
    room rates at their discretion, and increase or decrease the number of reservations
    made available through the OTCs’ websites, or even eliminate the number of
    reservations made available through the OTCs’ websites completely, depending on
    the hotels’ anticipated need to fill more rooms.
    Typically, consumers visit the OTCs’ websites and ultimately select from
    the hotel accommodations made available to the OTCs from the hotels and request
    a reservation for their desired accommodation. The OTC, as an intermediary,
    contacts the pertinent hotel and the hotel decides whether to accept or reject the
    reservation request.5 If the hotel elects to accept the reservation, the hotel makes
    the reservation in the name of the traveler. The hotel sends a reservation
    confirmation number back to the OTC, which is then forwarded to the traveler,
    along with other pertinent information, including the terms, conditions, and rules
    the hotel imposes on the reservation and the hotel stay.
    Once the reservation is confirmed, the traveler’s credit card is charged a
    combined amount that includes: (1) the consideration the hotel charges for the
    traveler to rent the room; (2) an amount to cover the anticipated taxes the hotel will
    be responsible for on the rental rate charged by the hotel; and (3) additional
    5
    Typically, this communication between the OTC and the hotel is handled electronically
    and is completed relatively quickly.
    21-CA-132                                     12
    amounts retained by the OTC in payment for its services in facilitating the
    reservation and in collecting the room charge and the anticipated taxes.
    On the confirmation sent to the traveler, the charges are typically displayed
    in two components: (1) the nightly charge (“Room Price”), which is a combination
    of (a) the amount the hotel charges for occupancy of the room, and (b) a
    facilitation fee retained by the OTC for its services in facilitating the reservation;
    and (2) the tax recovery charge (“Taxes & fees”), which is a combination of (a) the
    anticipated taxes the hotel will be responsible for on the rental rate charged by the
    hotel, and (b) a service fee retained by the OTC as additional compensation for its
    services. On their websites, the OTCs explain all applicable charges to the
    traveler, including that the charges include a facilitation fee and a service fee.
    Before completing the booking, the traveler must agree to the terms and conditions
    which contain explanations of the applicable charges.
    Typically, upon arrival at the hotel, the traveler checks in by identifying
    himself. Once the hotel confirms that the traveler has a prepaid reservation, and
    assuming the traveler meets any conditions imposed by the hotel for gaining
    occupancy, the hotel assigns and grants occupancy of a specific room to the
    traveler. At checkout, the traveler is responsible for paying the hotel directly for
    any incidental services consumed during the stay.
    Typically, in due course, the hotel receives payment from the OTC of the
    amount the hotel charged for occupancy of the room, plus the anticipated taxes the
    hotel will be responsible for on the rental rate charged by the hotel, based on the
    applicable tax rate. Then, in due course, the hotel remits the taxes on the amount
    the hotel charged for occupancy of the room to the appropriate taxing authority.
    The evidence attached to the motions for summary judgment undisputedly
    establishes that the OTCs do not own or possess hotel rooms, and cannot grant
    travelers the right to possess, use, or occupy hotel rooms; only the physical hotels
    21-CA-132                                  13
    can do so. Further, according to the undisputed evidence, the OTCs do not manage
    or operate any hotel, nor do they perform the daily functions of a hotel, such as
    those services provided and required to make travelers comfortable during their
    stay, like maid service, security, concierge, or dining services. Further, the OTCs
    do not create or implement hotel policies, procedures, or marketing, or hire, train,
    or supervise hotel employees. They do not check in the travelers, assign them
    rooms, or give them access to their rooms.
    The trial court found that the OTCs were clearly not “hotels” under the pre-
    2016 version of La. R.S. 47:301(6)(a) (“any establishment engaged in the business
    of furnishing sleeping rooms, cottages or cabins to transient guests, where such
    establishment consists of six or more sleeping rooms, cottage or cabins at a single
    business location.”). Upon de novo review, we find no error in this legal
    conclusion. The OTCs clearly did not fit this definition of “hotel,” as they are not
    physical establishments and the unrefuted evidence shows that they do not own or
    control hotel rooms in a physical manner.
    The trial court also found that the OTCs were not “hotels” under the 2016
    amended version of La. R.S. 47:301(6)(a), quoted supra. Likewise, upon de novo
    review, we find no error in the trial court’s analysis or conclusion in this regard.
    The trial court found that the OTCs met the definition of “person” under La. R.S.
    47:301(8)(a).6 However, the trial court concluded that the evidence failed to show
    that the OTCs were “engaged in the business of furnishing sleeping rooms within
    the meaning of the statute,” because again, the OTCs have no physical control over
    hotel rooms or an inventory of hotel rooms. Further, the legislative history of the
    statute makes clear that the above-quoted 2016 amendment to La. R.S.
    6
    La. R.S. 47:301(8)(a) defines “person” as follows: “‘Person’, except as provided in
    Subparagraph (c), includes any individual, firm, copartnership, joint adventure, association,
    corporation, estate, trust, business trust, receiver, syndicate, this state, any parish, city and parish,
    municipality, district or other political subdivision thereof or any board, agency, instrumentality,
    or other group or combination acting as a unit, and the plural as well as the singular number.”
    21-CA-132                                          14
    47:301(6)(a) was intended to extend the tax’s reach to include those persons
    engaged in furnishing sleeping rooms via online services such as AirBnB.7
    A plain reading of the language of the entirety of La. R.S. 47:301(6)(a)
    clearly defines hotel as an “establishment or person” with a physical location
    where rooms are furnished. As the OTCs’ affidavit evidence clearly establishes,
    the OTCs, while “persons,” are not “establishments” with a physical location and
    do not provide customers with access to any physical location.
    The cases cited by the Sheriff in his exhibits to the trial court, which are
    from other taxing jurisdictions, focus on the definition of “furnishing.” At least
    two of those cases, which again are from other taxing jurisdictions whose tax
    statutes do not exactly track La. R.S. 47:301(14)(a), found that the OTCs
    “furnished” rooms because they facilitated reservations. We find that “facilitating
    reservations” is different than “furnishing rooms,” and to interpret our statute in
    this way is contrary to our mandate to construe taxing legislation against the
    Sheriff and in favor of the taxpayer. See Am. Multi-Cinema, Inc. v. Normand, 18-
    487, supra. And, La. R.S. 47:301(14)(a) contains the additional requirement that
    the furnishing of sleeping rooms be done “by hotels.”8 When a law is clear and
    unambiguous and its application does not lead to absurd consequences, the law
    shall be applied as written and no further interpretation may be made in search of
    the intent of the legislature. La. C.C. art. 9. Accordingly, since the OTCs clearly
    do not meet the plain definition of “hotel” under the statute, either before 2016 or
    7
    Our conclusion that the OTCs are not “hotels” under La. R.S. 47:301(6)(a) is further
    supported by the Legislature’s rejection of a 2016 amendment to that statute to expand the
    definition of “hotel” prospectively to include online room “remarketers,” which was proposed to
    be defined as to include “any person or business entity that reserves, arranges for, conveys, or
    furnishes occupancy, via Internet or other electronic communication, to an occupant for rent in
    an amount determined by the remarketer, directly or indirectly.” It seems obvious that had the
    Legislature desired for companies like the OTCs to be considered within the definition of “hotel”
    for “sales of services” tax purposes, it would have not rejected the proposed amendment.
    8
    The Sheriff argued below that the OTCs acquired an inventory of hotel rooms from the
    hotels which they (the OTCs) controlled, but without evidentiary support.
    21-CA-132                                      15
    after the 2016 amendment to La. R.S. 47:301(6)(a) discussed above, we find that
    their services in facilitating reservations between Jefferson Parish hotels and
    consumers are clearly not taxable “sales of services” under La. R.S. 47:301(14)(a).
    Accordingly, the Sheriff’s arguments on this issue are without merit.
    Second issue: Are the OTCs “dealers” under the subject tax statutes?
    Under this issue, the Sheriff claims that the OTCs have assumed the status of
    “dealers” because they have contractually assumed the act of collecting the subject
    taxes from the consumers, which then obligates them to be the party who remits
    the subject taxes to the Sheriff.
    In brief, the Sheriff argues that the contracts between the OTCs and the
    hotels establish that: (1) the OTCs are the merchant or seller of record in the
    subject transactions, not the hotels; (2) the OTCs establish the price charged to the
    hotel room consumer, not the hotels; (3) the hotels cannot provide any instruction
    to the OTCs regarding whether or not to charge and collect sales and occupancy
    taxes to consumers and the amount of taxes to charge on a given transaction; and
    (4) the hotels are contractually prohibited from collecting taxes directly from the
    consumers and from bypassing the OTCs’ collection of taxes from the consumers.
    Thus, the Sheriff argues, in accordance with the Supreme Court’s holding in
    Normand v. Wal-Mart.com USA, LLC, supra, the OTCs have assumed various
    duties and obligations as “dealers” in the transactions in questions and in turn have
    violated their duties and fiduciary obligations owed to the Sheriff.9
    Upon de novo review, we find that the statutory and jurisprudential authority
    asserted by the Sheriff for his position on this issue is unpersuasive. While the
    Sheriff relies on Normand v. Wal-Mart.com USA, LLC, supra, as jurisprudential
    9
    La. R.S. 47:301(4) defines “dealer,” in pertinent part, as follows:
    (4) … “Dealer” is further defined to mean: …
    (f) (i) Any person, who sells or furnishes any of the services subject to tax
    under this Chapter. …
    21-CA-132                                        16
    authority for his position on this claim, the Normand court in our opinion actually
    holds otherwise. In Normand, the Supreme Court observed:
    Furthermore, payments for retail sales are frequently processed
    by service providers that, like the marketplace facilitator here, are not
    parties to the underlying sales transactions and are not responsible for
    collecting sales taxes. The fact that the intermediary transmits the
    funds to the sellers does not relieve the sellers of their tax-collection
    obligation or cause the intermediary to assume the sellers’ legal
    obligation to collect taxes. A contrary interpretation of La. R. S.
    47:301(4), in light of Louisiana’ [sic] general tax scheme, would
    authorize the imposition of liability for sales tax on any intermediary
    that aids or enables sellers to reach new customers although not
    selling anything (i.e., payment processors, credit card companies,
    financial institutions, common carriers, advertisers, and broadcasters).
    …
    Id. at *13. (Emphasis in original.)
    The court then went on to conclude:
    Clearly, third party retailers are not prohibited from collecting
    sales tax directly from their purchasers, as the agreement recognizes
    that third party retailers may ‘collect[ ] the taxes separately.’ … For
    this reason, Wal-Mart.com did not contractually assume the obligation
    of the third party retailers, as dealers, to collect and remit sales tax.
    The trial court legally erred in finding to the contrary.
    Id. at *14. (Emphasis added.)
    Thus, it is clear under Normand that the OTCs did not become “dealers” under the
    subject tax statutes simply by collecting anticipated sales and occupancy taxes
    directly from the consumers and then transmitting the anticipated taxes to the
    hotels. The fact that the OTCs collect and transmit the anticipated taxes on the
    rental rate charged by the hotels to the hotels does not relieve the hotels of their
    tax-collection and remittance obligations or cause the OTCs to assume the hotels’
    obligation to collect and remit the subject taxes to the Sheriff. As noted above,
    under La. R.S. 47:302(C)(2), “[t]he tax levied in this Section shall be collected
    from the dealer, as defined herein, …”. (Emphasis added.) The “dealer” is the
    party to the taxable transaction who has the legal responsibility to remit the taxes
    collected to the Sheriff. Neither the statute nor Normand also require that the
    “dealer” be the party who collects the taxes from the consumer. Here, the hotels,
    21-CA-132                                  17
    as furnishers of the hotel rooms in question under La. R.S. 47:301(14)(a), are
    clearly the “dealers” in the transactions in question, and thus are the parties to the
    transactions who have the legal responsibility to remit the taxes collected to the
    Sheriff.
    In light of the above, we find no error in the trial court’s conclusion that the
    OTCs were not “dealers” under the aforementioned tax statutes. Since the OTCs
    are not “dealers” under the aforementioned tax statutes, they have no responsibility
    to remit the anticipated taxes collected in the hotel room transactions in question
    directly to the Sheriff.
    Accordingly, the Sheriff’s arguments on this issue are without merit.
    Third issue: Did the OTCs breach a fiduciary duty owed to the Sheriff?
    The Sheriff argues herein that when a party charges and collects “taxes”
    from an end-user and consumer, the party (here, the OTCs) automatically enters
    into a fiduciary relationship with the taxing authority that levies and imposes the
    taxes, citing Lerner New York, Inc. v. Normand, supra, wherein this Court cited
    Sabine Pipe & Supply Co. v. McNamara, 14,599 (La. App. 1 Cir. 3/2/82), 
    411 So.3d 1167
    , reh. denied (4/13/82), writ denied, 82-1109 (La. 5/28/82), 
    414 So.2d 1254
    , with approval and authority.
    In this suit, as noted above, the Sheriff did not allege that the “sale of
    services” taxes on the “wholesale” price the hotel charges for the rooms have not
    been collected by the hotels from the OTCs and remitted by the hotels to the
    Sheriff. Rather, the Sheriff alleged that the OTCs calculate and collect the
    applicable sales and use taxes on the “retail price,” which the Sheriff alleges is the
    sum of the “wholesale” price of the room charged by the hotel plus the OTCs’
    “markup.” The Sheriff asserts that the OTCs note this on the customer’s
    reservation confirmation as a lump sum item identified as “Room Price” (or
    similar), but the OTCs only remit the taxes to the hotel calculated on the
    21-CA-132                                  18
    “wholesale” price of the room. The Sheriff thus argues that the OTCs have
    breached their duty as a fiduciary to the Sheriff to remit all taxes collected. The
    Sheriff claims, thus, that he is additionally due sales and occupancy taxes on the
    difference between the tax amount calculated on the “retail” price of the room and
    the tax amount calculated on the lesser “wholesale” price of the room that has
    already been collected and remitted. The OTCs denied that they calculated taxes
    on the “retail” price of the room.
    This Court has held above that the room facilitation services performed by
    the OTCs are not taxable under La. R.S. 47:301(14)(A). The particular question in
    this issue is whether the OTCs represented to the consumer that they collected
    taxes on the “retail” price of the room, but remitted to the hotel only the taxes
    collected on the “wholesale” price of the room.
    In support of this argument, the Sheriff submitted the affidavits of Jeanine
    Theriot and Carrie Power. Ms. Theriot is the supervisor of sales tax collection for
    Jefferson Parish; Ms. Power was an employee of a private auditing firm who
    specializes in conducting Louisiana sales, use, and occupancy tax compliance
    audits for local tax Sheriffs. Sheriff Lopinto was a client of this firm, and Ms.
    Power worked on compliance audits for the Sheriff.
    In July of 2015, Ms. Power reserved a hotel room in Jefferson Parish for
    July 20-21, 2015, using one of the OTCs in this case, Expedia, and stayed in the
    hotel pursuant to that reservation. Ms. Power stated in her affidavit that Expedia
    sent her a confirmation email which explained the price breakdown of her room as
    follows:
    21-CA-132                                 19
    Price Breakdown
    Room Price:                   $193.55
    1 night:                      $169.00
    Taxes & fees:                 $ 24.55
    Total                         $193.55
    Collected by Expedia
    Ms. Power also explained that the travel confirmation email she received contained
    reservation information, an itinerary number, and “pertinent information” about the
    hotel’s check-in time, check-out time, check-in policies, room, price summary,
    additional hotel fees (for extra optional services such as parking, internet, and
    buffet breakfast), rules, and restrictions.
    Ms. Power explained in the affidavit that based on Expedia’s email to her,
    she was “led to believe” that the charge for “Taxes & fees” in the amount of
    $24.55 represented “Taxes & fees” collected by Expedia on behalf of
    “governmental entities.” She stated that Expedia’s confirmation email did not
    explicitly breakdown which portion of the $24.55 “Taxes & fees” were to be
    retained by Expedia as fees. She further explained that during her booking with
    Expedia, she was not given the ability to opt in or out of any type of “services”
    performed by Expedia and/or the ability to opt in or out of any corresponding
    “fees” associated with any purported services performed by Expedia.10 Attached to
    Ms. Power’s affidavit was the email confirmation she received upon booking with
    Expedia.
    After the stay, Ms. Power gave her Expedia travel confirmation email to Ms.
    Theriot, who then subpoenaed the internal “Guest Folio” from the hotel in order to
    compare the Expedia price breakdown with the hotel charges. In her affidavit, Ms.
    Theriot explained that Guest Folios are documents created by the hotel that are not
    In its reasons for judgment, the trial court correctly noted that “… the fees are optional.
    10
    Consumers can avoid these fees by simply booking directly with the hotel.”
    21-CA-132                                       20
    provided to guests who book hotel rooms through OTCs. Ms. Power’s Guest Folio
    corresponding to the subject reservation showed $18.32 in “Room Tax,” rather
    than the $24.55 charged by Expedia for “Taxes & fees.” The Sheriff, through Ms.
    Theriot’s affidavit, contends that this evidence shows that Expedia was not
    “properly handling” its sales and occupancy tax obligations and collected taxes
    from the consumer on the “retail” price, but remitted taxes only on the “wholesale”
    price, keeping the difference. The Sheriff argues that since the OTC collected
    more in taxes than it remitted, and that such taxes were collected for remittance to
    the Sheriff, the OTC breached its fiduciary duty to the Sheriff, a duty that arises in
    favor of the Sheriff by virtue of the OTC’s status as a “dealer.”
    The OTCs, however, explained through the affidavit of Silvia Camarota, that
    the line item in a consumer’s transaction with the OTC clearly states it is for
    “Taxes & fees,” not just taxes. They explained that the bundled amount includes a
    fee retained by the OTC for collecting the anticipated taxes. The OTCs deny that
    they calculate anticipated taxes on the “retail” price. They further deny that a
    consumer is misled into believing that this item is for taxes only.
    Upon de novo review, we find that although Ms. Power claimed in her
    affidavit that the Expedia confirmation email to her regarding her reservation “led”
    her “to believe” that 100% of the “Taxes & fees” amount noted on her reservation
    was to be remitted to “governmental entities,” there is no objective basis for that
    belief contained in Expedia’s confirmation email to her. While Expedia did not
    separate the exact amount being remitted as “Taxes” from the “fees,” neither did it
    express anywhere in the confirmation email attached to Ms. Power’s affidavit that
    100% of the amount was charged only for taxes, or that the “fees” were also a
    category of charge being remitted to a governmental entity. Ms. Power, as either a
    “lay” consumer or a governmental sales tax auditor, could not have had a
    reasonable belief based on Expedia’s confirmation email to her that “Taxes &
    21-CA-132                                 21
    fees” meant only “taxes,” or that lacking more information, such an amount would
    be entirely remitted to “governmental entities.” The confirmation email sent to
    Ms. Power by Expedia is simply devoid of any information regarding to whom
    these “Taxes & fees” would be remitted.
    The Sheriff relies on both Lerner v. Normand, supra, and Sabine Pipe &
    Supply Co. v. McNamara, supra, in support of its arguments in this regard. We
    find, however, that these cases are clearly distinguishable from the instant case.
    In Sabine Pipe, Sabine Pipe & Supply Co., an out-of-state seller of oilfield
    equipment, sold equipment to Louisiana purchasers. On these transactions through
    which merchandise (personal tangible property) was brought into Louisiana for use
    in this State, “use taxes” were due under La. R.S. 47:302(A)(2). Sabine Pipe &
    Supply Co. in fact charged Louisiana use taxes to the purchasers on those
    purchases of equipment that were transported to Louisiana, but thereafter failed to
    remit any of the use taxes it collected on those transactions to the State. The court
    found that by undertaking to collect Louisiana’s use taxes for the State, Sabine
    Pipe & Supply Co. entered into a fiduciary relationship with the State. One of its
    obligations, as fiduciary, was to remit to Louisiana those taxes which belonged to
    Louisiana. By failing to do so, the court found that Sabine Pipe & Supply Co.
    breached its fiduciary duty to the State.
    The particular issue before this Court in Lerner was whether Lerner still
    owed Jefferson Parish certain sales taxes it had collected from its online
    purchasers/taxpayers, but had erroneously remitted to the incorrect taxing
    jurisdiction. The underlying transactions, sales of goods online, were clearly
    taxable transactions under the Uniform Sales and Use Tax Code, unlike in this
    case. Lerner was also clearly the “dealer” in the transaction. Lerner and the OTCs
    here do not stand in the same positions in the transactions, and thus this Court’s
    21-CA-132                                   22
    finding that Lerner was a “dealer” under the applicable statutes is not applicable to
    the case at bar.
    In the instant case, it has already been established above that the OTCs do
    not owe “sales of services” taxes on the “fees” they collected from the consumer
    for facilitating the hotel reservations. Unlike the circumstances present in Lerner
    and Sabine Pipe, it has also been established above that the OTCs did not collect or
    retain any sales or occupancy taxes due to the Sheriff that have not already been
    remitted to the Sheriff by the hotels. Thus, Lerner and Sabine Pipe are not
    applicable to the case at bar and the Sheriff’s reliance thereon is misplaced.
    Accordingly, we find no error in the trial court’s conclusion that the OTCs do not
    stand in a fiduciary relationship to the Sheriff.
    Accordingly, the Sheriff’s arguments on this issue are without merit.
    Fourth issue: Did the trial court properly dismiss the Sheriff’s LUTPA claim?
    Finally, the Sheriff argues in brief that the trial court erred in dismissing his
    alleged Louisiana Unfair Trade Practices Act (“LUTPA”) claim against the
    OTCs.11 The June 12, 2019 judgment states that the Sheriff “fails to state a cause
    of action under the Louisiana Unfair Trade Practices Law … .”
    In Regions Bank v. Keys, 18-97 (La. App. 5 Cir. 10/17/18), 
    257 So.3d 1266
    ,
    1269 (citing Executone Sys. Co. of La. v. Jefferson Parish Hosp. Serv. Dist. No. 2
    for the Parish of Jefferson, 15-569 (La. App. 5 Cir. 2/24/16), 
    186 So.3d 1210
    ,
    1215, writ denied, 16-0569 (La. 5/13/16), 
    191 So.3d 1059
    ), this Court set forth the
    guiding legal principles regarding the exception of no cause of action, to-wit:
    For the purpose of the peremptory exception of no cause of
    action, a “cause of action” refers to the operative facts which give rise
    to the plaintiff’s right to judicially assert an action against the
    defendant. Scheffler v. Adams and Reese, LLP, 06-1774 (La.
    2/22/07), 
    950 So.2d 641
    , 646; Everything on Wheels Subaru, Inc. v.
    Subaru South, Inc., 
    616 So.2d 1234
    , 1238 (La. 1993). The purpose of
    11
    This claim was dismissed by the trial court’s judgment of June 12, 2019, which granted
    in part and denied in part the OTCs’ motion for judgment on the pleadings.
    21-CA-132                                     23
    the peremptory exception of no cause of action is to test the legal
    sufficiency of the plaintiff’s petition by determining whether the law
    affords a remedy on the facts alleged in the petition. 
    Id.
     The
    exception is triable on the face of the pleadings, and for purposes of
    resolving the issues raised by the exception, the court must presume
    that all well-pleaded facts in the petition are true. Scheffler, 950 So.2d
    at 646; City of New Orleans v. Board of Commissioners of the
    Orleans Levee District, 93-0690 (La. 7/5/94), 
    640 So.2d 237
    , 253.
    Because the exception of no cause of action raises a question of law
    and the lower court’s decision is generally based only on the
    sufficiency of the petition, review of the lower court’s ruling on an
    exception of no cause of action is de novo. Scheffler, 950 So.2d at
    647. Generally, no evidence may be introduced to support or
    controvert the exception of no cause of action. La. C.C.P. art. 931.12
    In his petition, the Sheriff asserted that Jefferson Parish consumers “have
    been taken advantage of by [the OTCs] in being charged and paying for tax line
    charges that, according to [the OTCs], are not owed,” and that “[t]hese actions by
    [the OTCs] constitute unfair and deceptive acts and practices and are the type of
    practices prohibited by LUTPA.” The Sheriff further asserted in his petition that
    the OTCs breached La. R.S. 51:140513 by virtue of “unfair and deceptive methods,
    acts and practices” in the conduct of their business, thereby causing the Parish of
    Jefferson and the Sheriff “an ascertainable loss of revenue due to the
    underpayment and nonpayment of Sales and Occupancy Taxes that were, instead,
    converted to enrich [the OTCs].”
    In brief, the Sheriff argues that the trial court erred in dismissing its LUTPA
    claim against the OTCs prior to discovery and presentation of evidence. The trial
    court found, however, that to the extent that the Sheriff was alleging that Louisiana
    consumers were damaged by the OTCs “deceptive” practices, the Sheriff failed to
    12
    In contrast, the exception of no right of action serves to question whether the plaintiff
    in the particular case is a member of the class of persons that have a legal interest in the subject
    matter of the litigation. Lasalle v. G.E.C., Inc., 18-564 (La. App. 5 Cir. 4/24/19), 
    271 So.3d 328
    ,
    333, writ denied, 19-00859 (La. 9/17/19), 
    279 So.3d 378
    , and La. C.C.P. art. 927. An exception
    of no right of action assumes the petition states a valid cause of action and questions whether the
    plaintiff has a legal interest in the subject matter of the litigation. 
    Id.
     An appellate court reviews
    a trial court’s ruling on an exception of no right of action de novo because the exception raises a
    question of law. 
    Id.
    13
    La. R.S. 51:1405(A) provides: “Unfair methods of competition and unfair or deceptive
    acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”
    21-CA-132                                         24
    state a right of action to bring this claim, as LUTPA does not allow the Sheriff to
    bring an action in a representative capacity, as per La. R.S. 51:1409(A).14 The
    Sheriff fails to address this finding in brief.
    Regarding the Sheriff’s individual claim, the trial court found, in its reasons
    for judgment, that while it agreed that the Sheriff was a “person” for LUTPA
    purposes, it nonetheless found that the substance of this claim was identical to the
    Sheriff’s claims for alleged violations of the tax statutes and ordinances addressed
    in claims one through three of the petition. In other words, the Sheriff alleged that
    the OTCs violated LUTPA by failing to remit taxes, and the damages claimed by
    the Sheriff were the alleged unpaid taxes. Specifically, in its reasons for judgment,
    the trial court found that “the Sheriff alleges no facts to support a distinction
    between the damages sought under LUTPA and the damages sought under claims
    one through three, i.e. the loss of ascertainable revenue due to the underpayment
    and nonpayment of taxes.” In its reasons for judgment, the trial court further found
    that the range of prohibited practices under LUTPA is narrow, and that only
    “egregious actions involving fraud or deception will be sanctioned under LUTPA,”
    citing Cheramie Services, Inc. v. Shell Deepwater Production, 09-1633 (La.
    4/23/10), 
    35 So.3d 1053
    , 1060, which quoted Turner v. Purina Mills, Inc., 
    989 F.2d 1419
    , 1422 (5th Cir. 1993), as follows:
    LUTPA does not prohibit sound business practices, the exercise
    of permissible business judgment, or appropriate free enterprise
    transactions. The statute does not forbid a business to do what
    everyone knows a business must do: make money. Businesses in
    Louisiana are still free to pursue profit, even at the expense of
    competitors, so long as the means used are not egregious. …
    14
    La. R.S. 51:1409(A) provides, in pertinent part: “Any person who suffers any
    ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use
    or employment by another person of an unfair or deceptive method, act, or practice declared
    unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity
    to recover actual damages. …” (Emphasis added.)
    21-CA-132                                       25
    The trial court specifically found, and we agree, that a failure to remit taxes
    is not the type of egregious action contemplated by LUTPA. Moreover, we find
    that the Sheriff’s claim that he lost revenue through the non-remittance of taxes is
    actionable under the more specific tax laws relied upon by the Sheriff to assert
    Claims One, Two, and Three for unpaid taxes.
    Upon de novo review, presuming that all well-pleaded facts in the Sheriff’s
    petition are true, we find that LUTPA does not afford the Sheriff a remedy on the
    facts alleged in the petition. Accordingly, we find no error in the trial court’s
    ruling that the Sheriff’s petition failed to state a cause of action under LUTPA, and
    the resultant dismissal of the Sheriff’s LUTPA claim, both individual and
    representative.
    Accordingly, the Sheriff’s arguments on this issue are without merit.
    CONCLUSIONS
    In conclusion, upon de novo review of defendants’ motion for summary
    judgment and plaintiff’s cross-motion for partial summary judgment, for the
    foregoing reasons, we find that there are no genuine issues as to material fact and
    that defendants are entitled to judgment as a matter of law, and accordingly, the
    trial court did not err in its September 16, 2020 judgment in granting defendants’
    motion for summary judgment and in denying plaintiff’s cross-motion for partial
    summary judgment. Further, upon de novo review, for the foregoing reasons, we
    find the trial court did not err in dismissing plaintiff’s alleged LUTPA claim in its
    June 12, 2019 judgment.
    DECREE
    For the foregoing reasons, the judgments of the trial court under review are
    affirmed.
    AFFIRMED
    21-CA-132                                 26
    SUSAN M. CHEHARDY                                                             CURTIS B. PURSELL
    CHIEF JUDGE                                                                   CLERK OF COURT
    NANCY F. VEGA
    FREDERICKA H. WICKER
    CHIEF DEPUTY CLERK
    JUDE G. GRAVOIS
    MARC E. JOHNSON
    ROBERT A. CHAISSON                                                            SUSAN S. BUCHHOLZ
    STEPHEN J. WINDHORST
    FIRST DEPUTY CLERK
    HANS J. LILJEBERG
    JOHN J. MOLAISON, JR.                      FIFTH CIRCUIT
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    NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
    I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
    IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
    DECEMBER 23, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
    NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
    21-CA-132
    E-NOTIFIED
    24TH JUDICIAL DISTRICT COURT (CLERK)
    HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
    DREW M. TALBOT (APPELLANT)           EDWARD D. WEGMANN (APPELLEE)       JAMES C. PERCY (APPELLEE)
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Document Info

Docket Number: 21-CA-132

Judges: Ellen Shirer Kovach

Filed Date: 12/23/2021

Precedential Status: Precedential

Modified Date: 10/21/2024