text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al.
    No. 11-CA-813.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Sidney L. Shushan, Jonathon M. Shush-an, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Barbara T. Casteix, Bruce S. Kingsdorf, Attorneys at Law, New Orleans, LA, John F. Shreves, Donald J. Brannan, Douglas F. Wynne, Attorneys at Law, New Orleans, LA, for Defendants.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12This appeal is from a summary judgment rendered in a concursus proceeding against defendants, Zodiac Corporation, Ltd. (“Zodiac”) and Salzer & Ramos Enterprises, Ltd. (“Salzer & Ramos”) (collectively, the “Zodiac Group”), finding that a tax sale whereby the Zodiac Group’s ancestor in title purportedly acquired ownership of one of the parcels of immovable property involved in the con-cursus proceeding was absolutely null, and thus denying the Zodiac Group’s claims to a portion of the funds deposited into the registry of the court as part of the concursus proceeding. The Zodiac Group has also filed, in this Court, an exception of no cause of action based on peremption. For the following reasons, we affirm the trial court’s grant of summary judgment and deny the exception.

FACTS AND PROCEDURAL HISTORY

In 2010, plaintiffs, Quantum Resources Management, L.L.C. (“Quantum”) and Mi-lagro Producing, L.L.C. (“Milagro”), filed this concursus proceeding, ^alleging that they were the owners of several oil, gas, and mineral leases that covered, among other properties, Lots 1-5 and Lots 35-88 in the Third Jefferson Drainage District, in Sections 13 and 24, Township 16 South, Range 23 East, near Lafitte, in Jefferson Parish, Louisiana. Quantum asserted that it was the unit operator of the CRIS 2 RA SU A Unit (the “Subject Unit”), which the aforementioned lots contributed acreage to, and upon which were situated two producing wells, known as the Mayronne No. 1 Well and the Mayronne No. 2 Well. (The property is apparently not subject to corporeal possession as it is under water.) Desiring to pay the proper parties the proceeds of production from these wells, Quantum and Milagro instituted this con-cursus proceeding, naming four groups of defendants which Quantum and Milagro identified from the public records as possibly having ownership interests in said lots that form part of the Subject Unit. Named as defendants in addition to the Zodiac Group were Pirate Lake Oil Corporation (“Pirate Lake”), George J. May-ronne, Jr., Agatha B. Mayronne Haydel, the Succession of Oswald Harry May-ronne, and Huey J. Mayronne (collectively, the “Mayronne Group”), and Joseph K. Handlin, II, Alan Kent Jones, Jennifer Elizabeth Jones, Patrick Kent Lindsay Jones and Jacqueline A.L. Jones (collectively, the “Handlin-Jones Group”) (these two groups are also collectively referred to herein as the “Mayronne and Handlin-Jones Groups”).

The current appeal concerns only the ownership interests in and to Lot 4 in the Third Jefferson Drainage District within the Subject Unit (the “subject Lot 4”). The Mayronne and Handlin-Jones Groups filed a motion for summary judgment, arguing that the Zodiac Group had no right, title, or interest in and to the subject Lot 4 because the Zodiac Group’s claim of title stemmed from a 1926 tax sale that was absolutely null, first because the tax assessment was in the name of a person who never actually owned the subject Lot 4, and second because there was no | ¿evidence that the Sheriff gave notice of the tax sale to the record owner of the subject Lot 4, violating the constitutional due process notice requirements established by Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). The Zodiac Group opposed the motion, arguing that the attack on the 1926 tax sale to their predecessor in title was subject to the five-year peremptive period set forth in the 1921 and 1974 Louisiana Constitutions. The trial court ruled in favor of the movers, dismissing the Zodiac Group’s claims of ownership of the subject Lot 4, with prejudice.

On appeal, the Zodiac Group argues that the trial court erred in finding that no issues of material fact remained, and in failing to find that the attack on the 1926 tax sale was perempted under the 1921 and 1974 Louisiana Constitutions, as per the Louisiana Supreme Court’s holding in Gulotta v. Cutshaw, 283 So.2d 482 (La.1973). The exception of no cause of action filed by the Zodiac Group in this Court asserts that the movers have no cause of action for the summary judgment based on this same constitutional peremption.

The record and briefs in this case reflect that the Mayronne and Handlin-Jones Groups’ claim of ownership to the subject Lot 4 is based on a sale of property from John S. Wells to George Mayronne dated August 8, 1938, recorded in Jefferson Parish in COB 144, Page 7. Mr. Wells had acquired this property at a tax sale on August 30, 1919 for 1918 unpaid taxes assessed in the name of Virgil Nobles. The affidavit of Larry E. Porterfield, the Mayronne and Handlin-Jones Groups’ professional land surveyor, indisputably established that the “Lot 4” |Bineluded in the sale from Mr. Wells to Mr. Mayronne is the subject Lot 4. Mr. Mayronne’s title in and to the subject Lot 4 later devolved to the Mayronne and Handlin-Jones Groups.

On the other hand, the record and briefs in this case reflect that the Zodiac Group’s claim of ownership to the subject Lot 4 is based on a tax sale dated August 22, 1925 whereby property identified as “Lot 4” assessed in the name of Eric (Erie) T. White was conveyed to John A. Saxton for unpaid 1924 taxes assessed in the name of Mr. White. Thereafter, on October 30, 1931, Mr. Saxton conveyed this “Lot 4” to Zodiac. On April 28, 1949, Zodiac conveyed an undivided one-half interest in and to this “Lot 4” to Robert R. Ramos, whose undivided one-half interest therein later devolved to Salzer & Ramos.

According to the affidavits of the May-ronne and Handlin-Jones Groups’ abstractor and surveyor, the public records of Jefferson Parish establish that Louisiana Meadows Company had previously conveyed “Lot 4 of Block 8, the town of Lafitte” to Mr. White. Although Mr. White had previously acquired various properties in Jefferson Parish, none of these acquisitions included property within the Subject Unit, and the “Lot 4” acquired by Mr. White from Louisiana Meadows Company was not the subject Lot 4, but rather was “Lot 4 of Block 8, the town of Laffite”. While the 1922 Jefferson Parish Tax Assessment Rolls accurately described the property assessed to Mr. White as “Farm Lots 167-847-848- & í B 8 Barata-ría — 15 acres Fresh water A 100” (emphasis added), through an apparent error in the description of that lot U B 8) in the 1924 tax assessment, the Jefferson Parish Tax Assessment Rolls for 1924 described the property assessed to Mr. White simply as “Farm Lots 167-847-848- & 4 Cont 15.45 acres Barataría — 15 acres Fresh water ‘A’ 100” (emphasis added).

|fiThe Zodiac Group acknowledges that Mr. White never owned the subject Lot 4, and does not challenge the movers’ assertion that notice of the 1926 tax sale purporting to include the subject Lot 4 was never given to the record owner of the subject Lot 4. However, the Zodiac Group argues that under Gulotta v. Cutshaw, the lack of notice to the record owner made the 1926 tax sale a relative nullity that was cured by the five-year peremptive period found in the 1921 and 1974 Louisiana Constitutions. The Zodiac Group further argues that genuine issues of material fact remain as to whether the Sheriff, in 1926, employed “reasonable steps” to give notice of the pending tax sale to the record owner.

The movers argued, however, that Mennonite, supra, at 798,103 S.Ct. 2706, effectively overruled Gulotta, at least regarding tax sales with the constitutional deficiency of lack of notice to the record owner of the property subject to the tax sale. Mennonite held that a tax sale without notice to a person with a “legally protected property interest” in the property is a violation of the Due Process Clause of the 14th Amendment to the United States Constitution, thereby rendering such a sale an absolute nullity.

In Gulotta, which was handed down in 1973, the Louisiana Supreme Court found a tax sale valid pursuant to an assessment in the name of a person not the owner of the property since a suit challenging the validity of the tax sale had not been brought within the five-year peremptive period provided by the Louisiana Constitution. Gulotta, 283 So.2d at 492. Finding that none of the three exceptions to the running of the peremptive period — 1) payment of taxes prior to sale; 2) the tax debtor remaining in corporeal possession of the property; and 3) lack of sufficient description of the property in the assessment — were present, the court concluded that the seller’s non-ownership of the property did not warrant the tax sale being set aside. Id.

¡¿ANALYSIS

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends.

A motion for summary judgment should be granted only if the pleadings, depositions, answers- to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSA-C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks, and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106,1110.

When a tax sale of real property does not meet the constitutional and jurisprudential criteria, including if the debtor’s due process rights were violated | ^because of lack of adequate notice as per Mennonite, the peremptive period of La. Constitution Article VII, § 25(C) does not run. The tax sale is an absolute nullity that may be attacked collaterally at any time, and is not cured by the constitutionally peremp-tive period. Bank One Louisiana, N.A. v. Gray, 34,802 (La.App. 2 Cir. 6/20/01), 792 So.2d 29. Notably, in State Through Dept. of Tmnsp. & Dev. v. Knight, 93-767 (La.App. 3 Cir. 2/2/94), 631 So.2d 714, the Second Circuit noted that it had been generally held, when Gulotta v. Cutshaw was written (upon which the Zodiac Group relies and which was handed down prior to Mennonite), that lack of notice of a tax sale to the record owner made the tax sale a relative nullity that was cured by the three- and five-year peremptive periods provided by the Louisiana Constitution. However, the Knight court acknowledged that Mennonite’s elevation of the notice requirement to a due process violation renders a tax sale with this deficiency an absolute nullity, effectively overruling this part of Gulotta’s holding relative to this sort of deficiency, the Zodiac Group’s reliance notwithstanding. Thus, because the movers herein may attack the 1926 tax sale as an absolute nullity, the Zodiac Group’s exception of no cause of action is hereby denied.

⅛ ⅛ brief, the Zodiac Group lists fourteen “Specifications of Errors and Issues Presented: Facts.” Some of these are specifications of error are asserted as j^uncontested facts (Nos. 1 through 11), and some relate to the burdens of proof (Nos. 12-14). Finding as we do that the 1926 tax sale was an absolute nullity as per Mennonite, and that Gulotta’s holding (and the constitutional peremptive period of five years) is now limited to attacks upon tax sales that are relative nullities, it is unnecessary for us to address each of the Zodiac Group’s specifications of error individually, as the “facts” listed therein, uncontested or contested, are not relevant to our analysis in light of the uncontested facts that Mr. White was neither the record owner nor the actual owner of the subject Lot 4, and importantly, that the record owner of the subject Lot 4 did not receive notice of the pending tax sale.

The Zodiac Group argued in brief and at oral argument to this Court that neither their opponents nor the court below addressed the “reasonable step” doctrine, noted by the United States Supreme Court in Jones v. Flowers, which the Zodiac Group argues excused the Sheriff in 1926 from ascertaining the identity of the record owner of the subject Lot 4, or at least excused the Sheriff from doing anything more than providing notice of the tax sale to Mr. White, the assessed owner of the subject Lot 4.

The Jones case held that when notice of a tax sale is mailed to the owner and is returned undelivered, the government must take additional reasonable steps to provide notice to the owner before taking the owner’s property, if it is practicable. 110The Court held that due process does not require that the property owner receive actual notice before the government may take his property; rather, due process requires only that the government provide notice “reasonably calculated” under all the circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. While declining to prescribe a particular form of notice, the Court found that mailing two letters to the owner that were returned unclaimed, plus publishing the notice of the tax sale in the newspaper two years after the initial notice was returned unclaimed, were inadequate to comply with the State’s constitutional due process requirements.

The Zodiac Group argues that in accordance with Jones, the actions taken by the Sheriff, in 1926, should be considered to have been fair and reasonable to all concerned parties under the particular facts and circumstances involved in this case, particularly in light of alleged complications involved in the title to the subject Lot 4. In other words, the Zodiac Group maintains that it would have been impracticable for the Sheriff, in 1926, to have been required to take any additional steps in attempting to ascertain and give notice of the pending tax sale to the record owner of the subject Lot 4, and thus only giving notice of the pending tax sale to the assessed owner of the subject Lot 4 should be considered sufficient and reasonable under the particular facts and circumstances involved in this case.

With all due respect to the Zodiac Group’s arguments, we find that Jones is distinguishable from this case. In Jones, the State did send a notice of the pending tax sale to the record owner of the property in question that was returned undeliverable and therefore was known by the State to be ineffective. Inadequate further steps were then taken by the State to provide notice of the pending tax sale to the record owner. In this case, however, the record owner of the subject Lot 4 was not in any way notified of the pending tax sale. Jones presupposes that the |nState will at least attempt to ascertain and notify the record owner of the property of the pending tax sale. Because the notice was returned undeliverable in Jones, the State was made aware that the notice was ineffective and should have taken additional “reasonable steps” to provide notice of the pending tax sale to the record owner. In our view, Jones does not excuse the Sheriff from at least taking “reasonable steps” to ascertain and attempt to give notice of the pending tax sale to the record owner of the subject property. In this case, notice of the tax sale was only sent, if at all, to a person (Mr. White) who was not the record owner of the subject property. In other words, in this case, no notice, reasonably calculated or otherwise, of the pending tax sale was provided to the record owner of the subject Lot 4. Accordingly, the Zodiac Group’s reliance on Jones is misplaced and without merit.

CONCLUSION

Based on our de novo review of this matter, and after carefully considering the law applicable to this case, for the reasons set forth herein, we find that no genuine issues of material fact remain in this case, and accordingly, affirm the trial court’s grant of summary judgment dismissing the claims of the Zodiac Group in this concur-sus proceeding, and further deny the Zodiac Group’s exception of no cause of action based on peremption filed in this Court.

AFFIRMED

      . La. Const, art. VII, § 25(C) (1974) provides as follows: Annulment. No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given. The fact that taxes were paid on a part of the property sold prior to the sale thereof, or that a part of the property was not subject to taxation, shall not be cause for annulling the sale of any part thereof on which the taxes for which it was sold were due and unpaid. No judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser; however, this shall not apply to sales annulled because the taxes were paid prior to the date of sale.

      .The Zodiac Group's specifications of error and issues presented for review are as follows:
      1. The District Court ignored the undisputed facts which support the application of Article 10 Section 11 and the Gulotta case in this concursus.
      2. The District Court ignored the fact that Erie White was the assessed owner of Lot 4, 3rd Jefferson Drainage District on the tax rolls for the years immediately prior to the tax sale.
      3. The District Court ignored the fact that White was the only assessed owned of Lot 4 at the time of the tax sale in 1926.
      4. The District Court ignored the undisputed fact that the White/Saxton tax sale was not attacked until the filing of this concursus suit, many, many years after the 1926 tax sale.
      5. The District Court ignored the undisputed fact that Lot 4 was correctly described in the Erie White assessment.
      6. The District Court ignored the undisputed fact that the 1925 taxes were not paid by anyone prior to the 1926 sale to John Saxton.
      7. The District Court ignored the undisputed fact that there is no corporeal possession of Lot 4 because it is in the Pen behind Lafitte and is underwater.
      8. The District Court ignored the undisputed fact that the other chains of title have conflicting and confusing tax sales from Wisner Estates to different purchasers within a period of three years.
      9. The District Court ignored the fact that the Sheriff complied with all Mennonite/Mullane requirements in the White/Sax-ton tax sale.
      10. The District Court ignored the fact that Lot 4 was correctly described in the White assessment and the White/Saxton tax sale.
      11. The District Court ignored the fact that the White/Saxton sale was not attacked for many years after the constitutional five-year preemption had passed.
      12. The District Court ignored all of the facts and problems in the other chains of title arising from the multiple tax sales and conveyances from the same seller in a very short period of time which bring this case within the scope of the "reasonable step” rule.
      13. The District Court ignored the facts which show that none of the three limited exceptions to the five-year constitutional preemption on tax sales apply in this case.
      14. The District Court ignored the well known rule that the burden of proof shifts to the party attacking the title if pleading attacking the title is perempted on its face.

      . 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006).


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jules ROBERTSON.
    No. 11-KA-1017.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Bertha M. Hillman, Attorney at Law, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

|2Pefendant, Jules Robertson, was convicted of second degree murder and attempted second degree murder. The sole error assigned on appeal is that the evidence presented at trial was not sufficient to support the convictions. Upon review of the record, we find the evidence sufficient and affirm the convictions.

PROCEDURAL HISTORY

On April 6, 2009, a St. John the Baptist Parish grand jury issued an indictment charging defendant, Jules Robertson, with first degree murder in violation of La. R.S. 14:30. Subsequently, the state amended the indictment reducing the charge to second degree murder of Nekeshia Joseph in violation of La. R.S. 14:30.1. On February 7, 2011, the state again amended the indictment to add a separate charge of attempted second degree murder of Ron James in violation of La. R.S. 14:27:30.1. On February 9, 2011, defendant was arraigned and pled not guilty to both charges. The matter proceeded to trial by jury on February 15, 2011. On February 18, 2011, the jury returned a verdict of guilty as charged. Defendant filed a motion for post-verdict judgment of acquittal and a motion for new trial, which were denied by the trial court. On April 18, 2011, defendant was sentenced to life imprisonment at hard labor without benefit of 1 ..¡probation, parole, or suspension of sen-fence on count one, second degree murder. As to count three, attempted second degree murder, defendant was sentenced to twenty-five years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. The sentences were imposed concurrently. On April 19, 2011, the trial court granted defendant’s motion for appeal.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error on appeal is that the evidence presented at trial was not sufficient to support the convictions. Specifically, defendant argues the evidence concerning identification was insufficient to identify him as the perpetrator of the crimes.

DISCUSSION

On December 30, 2008, at approximately 12:40 a.m., Ron James and Nekeshia Joseph were sitting inside Mr. James’ parked vehicle on East Twenty-Fourth Street in Reserve, Louisiana, when two hooded men on foot approached and subsequently began shooting into the vehicle. Nekeshia Joseph suffered fatal bullet wounds and was declared dead on the scene. Ron James was shot in the leg but drove away from the scene and contacted police.

At trial, Mr. James testified that he knew at the time of the shooting the identity of the hooded man who approached the driver’s side window with a gun. He immediately identified by photographic lineup co-defendant Calvin Mitchell as the subject who approached the driver’s side of his vehicle and testified that he knew Mr. Mitchell, “like family.” According to Mr. James, Mitchell approached the driver’s side of the vehicle, put a gun to the window and said “Give it up.” Mr. James testified that he heard Mitchell say to the subject on the passenger side window, “Duty, that’s Chill.” Mr. James’ nickname is Chill. Immediately thereafter, the subject on the passenger side began shooting into the vehicle.

14At trial, Mr. James identified defendant, Jules Robertson, as the subject who approached and shot from the passenger side of the vehicle. In his testimony, Mr. James acknowledged that he initially identified Terrel Hutchinson, a cousin of the defendant, as the subject who approached and shot from the passenger side of the vehicle. However, Mr. James testified and explained that he initially identified Hutchinson because he knew Hutchinson had a cousin named “Duty.” He further explained his thought process in identifying Hutchinson by stating, “if we find him, we going to find Duty.” Mr. James insisted that Hutchinson was not the subject who shot into the passenger side of his vehicle; he further noted that he initially reported the subject on the passenger side had dreadlocks and that Hutchinson does not have dreadlocks. Mr. James identified defendant at trial as the subject who shot into the passenger side of the vehicle and further noted that defendant has dreadlocks and goes by the nickname “Duty.”

The testimony reveals that on December 29, 2008, defendant and his cousins, Craig Cain, Kyron Cain, and co-defendant Calvin Mitchell, went to the Cains’ home to play basketball. Lacheon Watson, a family friend, was also present. The five men played basketball together before heading to Rusty’s pool hall around 8:00 p.m. La-cheon Watson testified that he, defendant, and co-defendant Mitchell drank alcohol and smoked marijuana at Rusty’s pool hall. The statement of Kyron Cain and the testimony of Lacheon Watson and Craig Cain reflect that a few hours later the group left Rusty’s pool hall and drove to defendant’s home. Defendant and Mitchell exited the vehicle and the other three men waited in the car. After returning to the vehicle, defendant instructed Craig Cain to drive to Reserve, Louisiana for the purpose of purchasing marijuana. Craig Cain testified that during the drive defendant made a comment that he was “going to pop somebody” and that he did not like people from Reserve. The testimony Vindicates that, after driving on Twenty-Fourth Street and circling the corner to a parallel street, defendant and Mitchell told Craig Cain to stop the vehicle. Defendant and Mitchell exited the vehicle and proceeded on foot through a cut-through to Twenty-Fourth Street. Minutes later the three men who remained in the vehicle heard multiple gunshots; soon thereafter, defendant and Mitchell returned to the vehicle. Craig Cain testified that during that drive to defendant’s home, defendant commented “I think that was a girl.” Craig Cain’s testimony and Kyron Cain’s statement to detectives reveal that, upon returning to defendant’s home, they followed defendant and Mitchell into a back bedroom at which time Mitchell placed a 9 mm handgun on the bed and defendant placed a .45 caliber handgun on the bed.

Hutchinson, defendant’s cousin who was initially identified by Mr. James, also testified at trial. Hutchinson testified that defendant and Mitchell later admitted to him that they were involved in the shooting. Hutchinson testified that defendant and Mitchell told him “they was high” and they “shot up” a car parked on the road on Twenty-Fourth Street. Hutchinson further testified that defendant said he went to the passenger side of the vehicle with a .45 caliber handgun and Mitchell went to the driver’s side of the vehicle with a 9 mm handgun.

Pat Lane, an expert accepted in the fields of firearms examination and ballistics, testified that the cartridge casings recovered from the scene were fired from nine millimeter and forty-five caliber handguns. Mitchell, in a recorded statement to detectives, admitted that he fired the 9 mm handgun from the driver’s side of the vehicle. The four bullets retrieved from Nekeshia Joseph’s body were submitted for testing and determined to be fired from a forty-five caliber handgun shot from the passenger side of the vehicle.

| JLAW AND ANALYSIS

Defendant’s sole assignment of error on appeal is that the evidence presented at trial was insufficient to support his convictions of second degree murder and attempted second degree murder. In reviewing the sufficiency of the evidence, an appellate court must determine that the evidence, whether direct or circumstantial or a mixture or both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of a crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, 657, cert, denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Mickel, 09-953 p. 4 (La.App. 5 Cir. 5/11/10), 41 So.3d 532, 534, writ denied, 10-1357 (La.1/7/11), 52 So.3d 885. Under the Jackson standard, a review of the record for sufficiency of the evidence does not require the court to ask whether it believes that the evidence at trial established guilt beyond a reasonable doubt. State v. Jones, 08-20, p. 6 (La.App. 5 Cir. 4/15/08), 985 So.2d 234, 240. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. Id., 08-20 at 7, 985 So.2d at 240.

In this case, defendant was found guilty of second degree murder and attempted second degree murder. Second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. State v. Martinez, 09-740, p. 10 (La.App. 5 Cir. 3/23/10), 38 So.3d 926, 931; La. R.S. 14:30.1. Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. Martinez, 09-740 at 10, 38 So.3d at 932. Specific criminal intent, as a state of mind, need not be proven as fact but may |7be inferred from the circumstances and the actions of the accused. Id. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing in the direction of the victim. State v. Jackson, 03-883, p. 13 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 850, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118 (citation omitted). In State v. Gonzalez, 07-449, p. 2 (La.App. 5 Cir. 12/27/07), 975 So.2d 3, 5, writ denied, 08-0228 (La.9/19/08), 992 So.2d 949, this Court found the evidence was sufficient to support a conviction of second degree murder when the defendant fired three shots in the direction of three fleeing men who had just robbed the defendant during a drug transaction. Id., 07-449 at 9, 975 So.2d at 8. This Court concluded that, “the act of aiming a lethal weapon and discharging it in the direction of the victim supports a finding by the trier of fact that the defendant acted with specific intent to kill.” Id.

In the instant case, the testimony and evidence indicates that defendant was at or near the scene of the shooting and was armed with a .45 caliber handgun. The police investigation determined that two weapons were used in the crime: a .45 caliber handgun and a 9 mm handgun. Co-defendant Mitchell, in a recorded statement to detectives, admitted that he possessed and discharged the 9 mm weapon. Craig Cain testified that he observed defendant place a .45 caliber weapon on the bed and Mitchell place a 9 mm weapon on the bed shortly after the shooting. Further, Hutchinson testified that defendant later admitted to him that he possessed and shot a .45 caliber weapon during the shooting. Patrick Lane of the Louisiana State Police Crime Lab, qualified as an expert in firearms identification, testified that he identified seven bullets recovered from the scene as .45 caliber projectiles. Thus, the evidence supports a conclusion that defendant possessed a .45 caliber handgun and discharged it seven times at the vehicle in which Nekeshia Joseph was a passenger.

| ^Considering the above jurisprudence and the evidence presented that defendant aimed a lethal weapon at a vehicle containing two occupants and discharged it seven times, the finding of the trier of fact that defendant acted with specific intent to kill or inflict great bodily harm is supported. Accordingly, the record contains sufficient evidencé to support defendant’s conviction of second degree murder of Nekeshia Joseph.

As to the conviction of attempted second degree murder of Ron James, a similar analysis applies. To prove attempted second degree murder, the state must establish beyond a reasonable doubt that the defendant specifically intended to kill a human being and that he committed an overt act in furtherance of that goal. Id., 09-740 at 10, 38 So.3d at 932. As discussed above, specific intent to kill may be inferred from a defendant’s act of pointing a. gun and firing at a person. Jackson, 03-883 at 13, 880 So.2d at 850. In this case, the evidence supports a finding that defendant aimed a lethal weapon at a vehicle containing two occupants and discharged it at least seven times. Accordingly, the evidence in this case is sufficient to support a conviction of attempted second degree murder of the other occupant of the vehicle, Ron James.

The thrust of defendant’s argument concerns identity. Defendant argues that the state failed to identity him as having been involved in the crimes; he contends that his cousin, Terrel Hutchinson, is responsible for the murder of Nekeshia Johnson and the attempted murder of Ron James. In support of his contention, defendant points to the fact that Mr. James initially identified by photographic lineup Terrel Hutchinson as the subject who approached the vehicle and shot from the passenger side. However, at trial, Mr. James identified defendant as the subject who approached the vehicle and shot from the passenger side. Mr. James further explained that he initially identified Hutchinson because he knew Hutchinson | awould lead investigators to the 'actual perpetrator, Hutchinson’s cousin named “Duty.” Mr. James insisted Hutchinson was not involved in the shooting and identified defendant as the perpetrator at trial.

Further, Hutchinson testified at trial that defendant and Mitchell admitted to him their involvement in the December 30, 2008, shooting. Hutchinson further testified that, on the night of the shooting, he was with his girlfriend celebrating her birthday; that testimony was confirmed by the girlfriend, Vanessa Harding, who also testified at trial.

Defendant points out inconsistencies in the testimony of Terrel Hutchinson, Craig and Kyron Cain, and Lacheon Watson and attacks the credibility of their statements. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09), 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10), 27 So.3d 297. It is not the appellate court’s function to re-evaluate the credibility of witnesses or reweigh the evidence. Id., OS-717 at 4,15 So .3d at 202.

In the instant case, despite some inconsistencies in the testimony, the jury heard testimony from all the witnesses, reviewed all the evidence, and concluded that defendant was the gunman on the passenger side of the vehicle during the shooting. Three individuals testified that they were with defendant and co-defendant on the night in question. They each observed defendant walk toward Twenty-Fourth Street and each heard gunshots minutes later. Craig Cain and Kyron Cain each admitted that he saw defendant in possession of a .45 caliber handgun shortly after the shooting. The surviving victim, Mr. James, testified that moments before the shooting he heard Mitchell refer to his accomplice as “Duty,” which is defendant’s nickname. Although Mr. James initially identified Terrel Hutchinson as the gunman on the passenger side, he retracted that identification at Imtrial with explanation and identified defendant as the passenger side subject. Further, Hutchinson testified at trial that defendant and co-defendant Mitchell admitted to him their involvement in the shooting. Viewing the record as a whole and the evidence in the light most favorable to the prosecution, a finding by the trier of fact that defendant was the passenger side gunman in the murder of Nekeshia Joseph and the attempted murder of Ron James is fully supported by the evidence presented at trial.

ERRORS PATENT DISCUSSION

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

Accordingly, for the reasons discussed above, defendant’s convictions of second degree murder of Nekeshia Joseph and attempted second degree murder of Ron James are affirmed.

AFFIRMED

      . Co-defendant, Calvin Mitchell, was also found guilty of second degree murder of Nekeshia Joseph and attempted second degree murder of Ron James.

      . Lacheon Watson, the friend of the family, testified that he did not walk to the back bedroom of the house.

      . Mitchell did not testify at trial.


author: KUHN, J.

text:
    The LIVINGSTON PARISH SCHOOL BOARD, through its SALES AND USE TAX DIVISION v. LOUISIANA MACHINERY COMPANY, L.L.C. Livingston Parish School Board, through its Sales and Use Tax Division v. Louisiana Machinery Rentals, L.L.C.
    Nos. 2011 CA 1235, 2011 CA 1236.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2012.

      Robert Ranier, Baton Rouge, LA, for Plaintiff-Appellee Livingston Parish School Board, Sales and Use Tax Division.

      Linda S. Akchin, Baton Rouge, LA, for Defendant-Appellant Louisiana Machinery Company, LLC.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

| oTaxpayer, Louisiana Machinery Company, LLC (LMC) appeals the trial court’s judgment granting a partial motion for summary judgment in favor of tax collector, Livingston Parish School Board through its Sales and Use Tax Division (LPSB), and making executory unpaid sales and use taxes, penalties, and interest assessed against LMC for tax years 2004, 2005, and 2007. LPSB answered the appeal, challenging the trial court’s action of sustaining LMC’s peremptory exception raising the objection of prescription for unpaid sales and use taxes, penalties, and interest against LMC for the tax year 2006. We affirm the granting of the partial summary judgment, reverse the sustaining of the exception of prescription for the tax year 2006, and remand.

BACKGROUND

On October 25, 2010, LPSB filed a summary proceeding against LMC under provisions of the Uniform Local Sales and Tax Code (ULSTC). LPSB averred that LMC was a registered dealer for Livingston Parish sales and use tax purposes and operated as Louisiana’s sole statewide Caterpillar franchise dealer, selling at retail, leasing, and repairing various new and used Caterpillar equipment and parts in ^Livingston Parish. LPSB, the single sales and use tax collector for all taxing authorities within Livingston Parish, contracted with a private auditing firm, Broussard Partners and Associates (BPA), to conduct an audit of LMC’s sales and use tax compliance for the period between December 1, 2008 and June 30, 2007. The audit was held open several times by three contracts entered into between LMC and LPSB that suspended the tolling of prescription of any taxes that were due by LMC during specified time periods. In its petition, LPSB averred the audit revealed that LMC had incorrectly failed to charge and collect sales and use taxes from its customers in Livingston Parish. LPSB alleged that under provisions of the ULSTC, LMC was liable to it for the taxes it had neglected, failed, or refused to collect and remit, as well as penalties and attorney’s fees.

The original audit conducted by BPA showed a sales and use tax deficiency of $198,769.79. On November 23, 2009, LPSB director, Michael Curtis, sent to LMC a notice entitled “30-DAY NOTICE OF INTENT TO ASSESS/Additional Tax Due — LA R.S. 47:337.48 B” for the deficiency, along with a penalty of $49,692.64 and interest of $108,686.44, for a total due of $357,148.87. In response to the intent to assess notice, LMC submitted additional documents, records, and papers to BPA pertaining to its sales and use compliance during the audited period. After considering the submitted documents, on February 18, 2010, LPSB issued another 30-day intent-to-assess notice to LMC showing a tax due of $196,641.45, along with a penalty of $49,160.56 and interest of $117,643.32, for a total due of $363,445.33. LMC responded to this second notice of the intent to assess by again submitting additional documents, records, and paperwork to BPA, which had not 1 ¿previously been provided and that pertained to LMC’s sales and use compliance during the audited period.

After consideration of the additional documentation, on May 17, 2010, LPSB sent LMC a notice entitled, “REVISED 60-DAY NOTICE OF ASSESSMENT/Additional Tax Due — LA R.S. 47:337.51/ Via Certified Mail,” showing a tax due of $67,326.63, along with a penalty of $19,130.67 and interest of $51,470.29, for a total due of $137,927.59. When LMC failed to respond in any of the manners stated in the May 17, 2010 notice, LPSB filed its petition, alleging that the assessment had become final and was the legal equivalent of a judgment against LMC under the ULSTC. With additional accrued interest, the total tax, penalty, and interest assessment through October 31, 2010 was $140,452.37, which, with interest continuing to accrue until paid, LPSB sought to make executory.

In its petition, LPSB also sought an injunction, enjoining LMC from further pursuit of business in Livingston Parish until full payment of the sales and use taxes; as well as recognition of its lien and privilege on all property owned by LMC to secure payments of the amount due; and attorney’s fees for its employment of counsel to assist it in the collection of the taxes, penalties, and interest due. Attached to LPSB’s petition was the affidavit of LPSB director Curtis, who attested that to the best of his knowledge and belief all the allegations of fact contained in the petition were true and correct. Thus, LPSB averred that it had established a |Bprima facie case under the ULSTC, and that the burden of proof shifted to LMC to establish anything to the contrary.

On December 2, 2010, LMC filed an answer, exceptions, and affirmative defenses to LPSB’s petition. In its answer, LMC contested the audit and assessment, denying that any sales or use taxes, penalties, or interest were due. LMC raised the declinatory exception of insufficiency of citation and service of process, dilatory exceptions of unauthorized use of summary proceeding and vagueness or ambiguity of the petition, and the peremptory exception of prescription. Its affirmative defenses included various ways in which the assessments were erroneous, extin-guishment of the obligation through payment or, in the alternative, offset, denial of due process and equal protection of the laws in violation of the Louisiana and United States Constitutions, non-taxability of the transactions included in the assessment, lack of finality of the assessment, and, to the extent any additional tax might be owed, a request for waiver of all penalties and interest. On December 13, 2010, LMC filed a supplemental and amending answer and affirmative defense, asserting that, to the extent the LPSB might contend that provisions of the ULSTC divested the trial court of subject matter jurisdiction; precluded LMC from raising any defenses or presenting evidence relevant to the correctness of the audit and assessment; or gave the LPSB unfettered discretion to determine the validity and correctness of the audit with no right of judicial review, as interpreted by the LPSB, those provisions were unconstitutional.

LPSB opposed LMC’s exceptions and affirmative defenses and filed an | (¡exception raising the objections of lack of jurisdiction over the subject matter and peremption. LPSB also filed a motion for partial summary judgment, alleging there were no genuine issues of material fact and that it was entitled to judgment in its favor and against LMC as a matter of law for the amounts due for the sales and use tax deficiency, interest, and penalties, as set out in the May 17, 2010, “REVISED 60-DAY NOTICE OF ASSESSMENT” and its petition. It also moved to strike LMC’s supplemental and amending answer and affirmative defenses on the grounds that they were urged separately and weeks after LMC’s first responsive pleading, and that these defenses to the taxing authority had been rejected by both the Louisiana and United States Supreme Courts.

After a hearing, the trial court granted LPSB’s motion to strike and its partial motion for summary judgment for the tax years 2004, 2005, and 2007, but sustained LMC’s peremptory exception of prescription for the 2006 tax year. A judgment in conformity with the trial court’s ruling was signed, and this appeal by LMC, and LPSB’s answer to the appeal, followed.

DISCUSSION

For the first time at oral argument, LMC challenged the sufficiency of the REVISED 60-DAY NOTICE OF ASSESSMENT issued by LPSB on May 17, 2010. Despite its captioned name, the May 17, 2010 notice advised LMC that it has “15 calendar days” to either: (1) pay the amount assessed; (2) file a written protest and request a hearing; or (3) pay the assessment under protest and file a suit for recovery within 30 days of payment. The notice additionally advised LMC, “Do not disregard this notice. Failure to act within the time or manner provided will |7result in the assessment becoming final and enforceable by warrant for dis-traint. Additional penalties, interest and collection fees may be assessed at that time.” Although LMC concedes that it did not attempt to adhere to any of the actions set forth in the notice in either 15 days or 60 days, admitting that it took no action whatsoever in response to the notice, it nevertheless maintains that LPSB’s failure to conform to the statutory provisions of the ULSTC regarding this assessment precludes summary judgment on the issue of the finality of the REVISED 60-DAY NOTICE OF ASSESSMENT.

On May 17, 2010, La. R.S. 47:337.51, entitled “Notice of assessment and right to appeal,” stated in relevant part:

A. Having assessed the amount determined to be due, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at the address given in the last report filed by said taxpayer, or to any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. If no report has been timely filed, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed at any address obtainable from any private entity which will provide such address free of charge or from any federal, state, or local government entity, including but not limited to the United States Postal Service or from the United States Postal Service certified software. This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector or; (c) pay under protest in accordance with R.S. 47:337.63.

“[L]aws regulating the collection of taxes are sui generis and comprise a system to which general provisions of the law have little, if any, relevance.” Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089 (La.6/29/05), 914 So.2d 533, 549. As noted by this court in West Baton Rouge Parish Revenue Dep’t v. Louisiana Machinery Rentals, L.L.C., 2011-0711 (La.App. 1st Cir.3/9/2012), 91 So.3d 1032, La. R.S. 47:337.45 provides several alternative remedies for the tax collector to recover delinquent taxes: (1) assessment and distraint, as provided in R.S. 47:337.48 through 337.60; (2) summary court proceeding, as provided in R.S. 47:337.61; and (3) an ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations. See La. R.S. 47:337.45(A). The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector. The fact that the collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation. See La. R.S. 47:337.45(B).

LMC has erroneously linked the notice provisions of La. R.S. 47:337.51(A) with the alternative summary proceeding tax enforcement remedy of La. R.S. 47:337.61. La. R.S. 47:337.51(A) is applicable only to the assessment and distraint tax enforcement remedy. LMC has cited, and we have found, no authority for its conclusion that a taxpayer must be given notice pursuant to La. R.S. 47:337.51(A) before the tax collector seeks or obtains relief by summary proceeding under La. R.S. 47:337.61. See Normand v. Randazzo, 11-308 (La.App. 5th Cir.12/28/11), 85 So.3d 707, writ denied, 2012-0285 (La.4/9/12), 85 So.3d 697.

Rather, La. R.S. 47:337.45(B) expressly grants the tax collector the right and discretion to enforce and collect sales and use taxes by summary proceeding, notwithstanding the requirements applicable to the assessment and distraint remedy, J^even when the collector has initiated assessment and distraint procedures. The availability of relief under La. R.S. 47:337.61 as dependent upon compliance with the notice requirements of La. R.S. 47:337.51(A) is inconsistent with the statutory classification of the summary proceeding as an “alternative” remedy in “addition to any other procedure” for the enforcement and collection of sales and use taxes. Normand, 85 So.3d at 710. And if a prior assessment is unnecessary to a tax collector employing summary proceedings, then compliance with the notice provisions applicable to a formal assessment cannot be a condition precedent. Id., (citing Collector of Revenue v. Olvey, 238 La. 980, 117 So.2d 563 (1959) and Collector of Revenue v. Frost, 240 La. 1067, 127 So.2d 151 (1961)); but cf. Caldwell Parish School Bd. v. Louisiana Machinery Co., L.L.C., 47,-349 (La.App. 2d Cir.5/16/12), 94 So.3d 144 (failure to strictly comply with notice provisions of La. R.S. 47:337.51 rendered notices null, precluding summary judgment on the issue of the finality of the assessment).

Moreover, consideration of LMC’s defense of insufficient notice, raised for the first time on appeal in LPSB’s summary proceeding, was not raised in LMC’s answer or exception. As such, LMC’s untimely assertion violated La. R.S. 47:337.61(2), which states:

All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed.

Accordingly, the issue is not properly before us in this appeal. See Normand, 85 So.3d at 711.

| Additionally, for the reasons set forth in West Baton Rouge Parish Revenue Dep’t, 91 So.3d 1032, we find no error in the trial court’s implicit and express conclusions that (1) a motion for summary judgment is appropriate under the summary proceeding authorized by La. R.S. 47:337.61; (2) LPSB was entitled to have LMC’s supplemental and amending petition stricken; and (3) it lacked subject matter jurisdiction and LMC’s defenses, exceptions, and defenses were perempted insofar as the tax years 2004, 2005, and 2007. Accordingly, the trial court correctly granted partial summary judgment in favor of LPSB, making executory all sales and use taxes due by LMC as set forth in the for the May 17, 2010, REVISED 60-DAY NOTICE OF ASSESSMENT for the tax years 2004, 2005, and 2007.

LPSB has answered this appeal, urging that the trial court incorrectly sustained LMC’s peremptory exception, objecting on the basis of prescription, insofar as LPSB’s demand for the sale and use taxes for the tax year 2006. We agree.

As we have already noted, LPSB attached to its motion for partial summary judgment two separate notices of assessment under La. R.S. 47:337.48 B sent to LMC, and LMC does not dispute that it received those or that it failed to either pay the assessment or initiate a hearing as set forth in the notices. LPSB also established, and LMC did not dispute, receipt of the May 17, 2010, REVISED 60-DAY NOTICE OF ASSESSMENT, which set forth a total assessment of $137,927.50 for sales and use taxes due for the period between December 1, 2003 and June 30, 2007, a significantly lesser amount than it originally intended to assess, which was a result of adjustments made by LPSB in response to the documentation LMC had informally supplied after the earlier 30-day notices. Finally, LPSB ^established, and it is undisputed, that LMC did nothing to avail itself of any of the remedies set forth in either of the 30-day notices or the May 17, 2010 revised assessment notice. With director Curtis’s affidavit attesting that the facts alleged in LPSB’s pleadings were true to the best of his knowledge or belief, LPSB established a prima facie case, satisfying its burden that its assessment had become “final.” See La. R.S. 47:337.61 (with the affidavit of the collector’s representative attesting that the facts as alleged are true to the best of his knowledge or belief, all of the facts alleged in pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary rested wholly on defendant).

Without any timely asserted action from LMC, LPSB’s assessment was final and the equivalent of a final and enforceable judgment. See West Baton Rouge Parish Revenue Dep’t., 91 So.3d at 711. The time periods set forth in La. R.S. 47:337.50 and 47:337.51 are preemptive; once elapsed, the rights of the taxpayer set out in the statutory scheme are extinguished. West Baton Rouge Parish Revenue Dep’t., 91 So.3d at 1040 (relying on La. C.C. art. 3458; Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291,1298). Thus, once the 60-day period elapsed without any action by LMC, its right to present its defenses (including the peremptory exception of prescription) was extinguished. See West Baton Rouge Parish Revenue Dep’t., 91 So.3d at 1040-41; see also La. R.S. 47:337.68 (any tax, penalty, interest, or other charges duly assessed under the ULSTC, being the equivalent of a judgment, shall not be subject to the running of any prescription other than such prescription as would run against a judgment in favor of the state of Louisiana in accordance with the constitution and laws of this state). Accordingly, the trial court 112erred by sustaining LMC’s exception of prescription insofar as the tax year 2006.

DECREE

For these reasons, that portion of the trial court’s judgment, which grants summary judgment in favor of LPSB and makes executory the sum of $67,326.63 representing tax, $19,130.67 representing penalty, and $51,470.29 representing interest, plus additional interest of $5,466.92 that had accrued until judgment for a total of $143,394.51, plus interest accruing on the tax amount from February 15, 2011 until paid, is affirmed. We reverse that portion of the judgment, which states:

less the sum of $35,844.07, representing tax, interest and penalty on taxes for calendar year 2006 where are prescribed ... for a net amount of tax, interest and penalty due to date of $107,550.44.

And that portion of the judgment, which sustains LMC’s peremptory exception of prescription as to all taxes that came due during the calendar year 2006 is reversed. Appeal costs are assessed against defendant-appellant, Louisiana Machinery Company, LLC. The case is remanded to the trial court for determination of the appropriate amounts of audit fees and attorney fees, if any.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      . LPSB’s suit against LMC was consolidated in the trial court with a similar suit against Louisiana Machinery Rentals, LLC, which was dismissed; therefore, this appeal involves only the claims against LMC.

      . Because the trial court’s judgment granted a motion for partial summary judgment but did not contain a certification of the finality of the judgment, see La. C.C.P. art. 1915 B, this court issued a show cause order and granted the parties leave to supplement the record. The record was timely supplemented with the trial court’s designation of finality but without an expression of reasons why there was no just cause for the delay. Having reviewed the record in light of the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113, 1122, we find that under the circumstances of this case, the trial court’s February 17, 2011 judgment was properly designated as final. See West Baton Rouge Parish Revenue Dep’t v. Louisiana Machinery Rentals, L.L.C., 2011-0711 (La.App. 1st Cir.3/9/2012), 91 So.3d 1041-42.

      . See generally La. R.S. 47:337.1 et seq. and specifically La. R.S. 47:337.33 and 47:337.61.

      . See La. R.S. 47:337.17(E).

      . See La. R.S. 47:337.68.

      . See La. R.S. 47:337.33.

      . See La. R.S. 47:337.65.

      . See La. R.S. 47:337.13.1 and 47:337.61.

      . See La. R.S. 47:337.51(C).