Pinnacle Polymers, LLC Versus St. John the Baptist Parish Sales and Use Tax Office

PINNACLE POLYMERS, LLC NO. 19-CA-310

VERSUS FIFTH CIRCUIT

ST. JOHN THE BAPTIST PARISH SALES COURT OF APPEAL
AND USE TAX OFFICE
STATE OF LOUISIANA

ON APPEAL FROM THE BOARD OF TAX APPEAL
STATE OF LOUISIANA
NO. L00357
HONORABLE CADE R. COLE, JUDGE PRESIDING

September 24, 2019

PER CURIAM

Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

REMANDED WITH INSTRUCTIONS
FHW
JGG
RAC

WICKER, J.

In this case concerning sales tax paid under protest, appellant, Pinnacle

Polymers, L.L.C., seeks a remand for retrial due to an incomplete transcript of its

Board of Tax Appeals hearing. Appellee, St. John the Baptist Parish, Sales, and

Use Tax Office, requests a partial retrial of the expert witness whose full testimony

was not recorded at the hearing.

FACTS AND PROCEDURAL HISTORY

On April 3, 2017, appellant, Pinnacle Polymers, L.L.C. (“Taxpayer”) filed a

Petition for Refund of Tax Payment under Protest. On September 20, 2018 a trial

on the merits occurred before the State of Louisiana Board of Tax Appeals

(“Board”). The Tax Judge in his judgment of January 8, 2019 (amended on April

1, 2019) found in favor of Appellee, St. John the Baptist Parish, Sales and Use Tax

Office (“Collector”), as to the remaining amount of sales taxes paid under protest

and any applicable interest, penalties, and costs thereon totaling $1,467,994.81.1

Taxpayer filed an appeal of the judgment on April 26, 2019, which was granted on

April 30, 2019. After a review of the record lodged on July 2, 2019, Taxpayer

discovered that a portion of the trial testimony was not transcribed and filed a

Motion to Direct Board of Tax Appeals to Supply Missing Trial Testimony for

Inclusion in the Record on July 11, 2019.2

On August 20, 2019, the Board informed this Court that the complete

transcript for this hearing is not available. As neither party requested a

stenographer in this proceeding, the Board recorded the hearing to a centralized

system which uploads to a cloud and an external hard drive in accordance with its

longstanding practice.3 The system contains an error warning light that is

supposed to alert the courtroom deputy who listens to the live audio during the

1
The Board also found in favor of Taxpayer in regards to the sales tax paid on the purchases of water and stipulated
services.
2
This Court granted the motion and ordered the Board to supplement the record with the missing trial testimony
within thirty days on July 16, 2019.
3
La. R.S. 47:1416 provides for the order of a stenographer upon the request of any party or upon the court’s own
motion, otherwise hearings will recorded and transcribed pursuant to regulation or rule of the board.

proceeding with a headset. During the September 20, 2018 hearing, the system

showed signs of malfunctioning and the system was rebooted. However, the

system failed to alert to an earlier malfunction between 2:31:14 p.m. and 3:38:58

p.m. The portion of the unrecorded proceeding includes parts of the testimony of

Taxpayer’s expert, Dr. Douglas Klendworth, including the latter half of his cross-

examination by Collector’s counsel, questioning by the Board, and the redirect by

Taxpayer’s counsel.4 The early part of Collector’s expert Dr. Brian Goodall’s

testimony, containing his qualifications as an expert, is also missing.

Taxpayer filed a Motion to Remand for Retrial Based on Missing Trial

Testimony and to Stay Proceeding or Extend Briefing Schedule While Motion is

Under Consideration on September 4, 2019. Taxpayer requests a full rehearing,

claiming that the one hour of unavailable expert witness testimony was critical for

purposes of appeal as it concerned the central matter at issue in this proceeding.5

In response, Collector filed a Motion to Remand for Partial Retrial on Missing

Trial Testimony and to Stay Proceeding or Extend Briefing Schedule While

Motion is Under Consideration. Collector requests that the retrial be limited to the

cross-examination, Board’s questioning, and redirect of Dr. Klendworth. Collector

states the missing testimony of their expert witness was only the beginning of his

qualifications which are contained on his C.V. which was filed into the record as

Exhibit D9.

DISCUSSION

In our opinion the appropriate course of action in this case is a remand for

the limited purpose of rehearing and transcribing the testimony of the witness

whose prior testimony is now unavailable. An appellate court is a court of record,

4
Taxpayer’s rebuttal examination of Dr. Klendworth was recorded and is part of the record.
5
Taxpayer cites this Court’s previous cases in support of the request for a retrial. Those cases did not specify when
a retrial is favorable over a limited rehearing. Guillie v. State Dept. of Transp. and Dev., 88-805 (La. App. 5 Cir.
2/15/89), 538 So.2d 1144, 1146 (remanded for either a retrial or correction of the incomplete record pursuant to La.
C.C.P. arts. 2132 and 2161). Wood v. Omni Bancshares, Inc., 10-216, 10-567 (La. App. 5 Cir. 10/29/10), 69 So.3d
473 (remanded to the trial court for a supplemental record to add to the transcript).
2

which must limit its review to evidence in the record before it without receiving

new evidence. Hoover v. Farber, 05–613 (La. App. 5th Cir. 1/31/06), 922 So.2d

637, 638; White Haute, LLC v. Mayo, 09–955 (La. App. 5th Cir. 3/23/10), 38 So.3d

944, 950. An appeal shall not be dismissed because the trial record is missing or

incomplete, and the court may remand the case either for retrial or for correction of

the record. La. C.C.P. art. 2161. Other courts have dismissed concerns about

fairness and potential changes as speculative. Furthermore, the trial court judge

who was present during the first trial would be in the best position to deal with

objections regarding substantial changes in the testimony.

Although La. C.C.P. art. 2131 allows parties to stipulate to a written and

signed narrative of the facts when testimony was not recorded, or to apply to the

trial court to make a written narrative of the facts if they are unable to agree, this

practice has been found to be inappropriate where testimony was recorded but has

become unavailable. Harper v. Harper, 107 So.2d 704 (La. 1958). La. Code Civ.

Proc. art. 2132 states that “A record on appeal which . . . omits a material part of

the trial record, may be corrected even after the record is transmitted to the

appellate court, by the parties by stipulation, by the trial court or by the order of the

appellate court. All other questions as to the content and form of the record shall be

presented to the appellate court.”

In this case, the parties may be able to agree on a stipulation of facts for

submission to this Court in lieu of the transcript of the omitted testimony. See

Middleton v. Pleasant, 285 So.2d 895, 896 (La. App. 3rd Cir. 1974). Taxpayer

filed a post-hearing brief on October 19, 2018 and Collector filed a post-trial

memorandum on October 23, 2018. These briefs summarize each party’s

arguments and the supporting expert testimony. The trial court may be able to

correct the missing testimony as its judgment of January 8, 2019 included twelve

3

pages of written reasons for judgment referencing the testimony of Dr. Klendworth

and Dr. Goodall.

If the parties are unable to reach a stipulation and the trial court is unable to

correct the record to the satisfaction of the parties, the appropriate procedure is the

retaking of the unrecorded testimony. Previously appellate courts have tended to

remand for the limited purpose of rehearing and transcribing the testimony of

witnesses whose prior testimony has not been recorded. Kay v. Home Indem, Co.,

(La. App. 3rd Cir. 1974); Grosch v. DeBautte, 228 So.2d 692, 693 (La. App. 4th

Cir. 1969) (the court noted disliking placing appellees in the position of having to

retry a portion of the case but appellants are entitled to a review of the judgment

and the unavailability was not their fault).

Taxpayer’s request for a trial de novo is denied, as that remedy is more

appropriate only when the entire transcript is unavailable. Willis v. Gulf Bldg.

Services of Baton Rouge, Inc., 372 So.2d 635 (La. App. 1st Cir. 1979). See La.

Prac. Civ. App. S6:28 Lost or unavailable trial transcript. We remand this matter

solely for the purpose of retaking testimony of the original witnesses. The trial

judge may render no further judgment as to the merits of this case. Middleton, 290

So.2d at 896. Unlike the cases cited by Taxpayer, this record is capable of being

corrected by recalling witnesses. All of the testimony introducing the exhibits, as

well as the exhibits, are included in the record before this Court. See Hover v.

Farber, 05-613 (La. App. 5th Cir. 1/31/06), 922 So.2d 637-638; Tremie v. Tremie,

14-733 (La. App. 3rd Cir. 12/17/14), 154 So.3d 796. Any issues with witness

inability to give the same or similar testimony may be resolved after the record is

completed. Myles v. Procon, Inc., 259 So.2d 77, 78 (La. App. 4th Cir. 1972).6

6
The Fourth Circuit responded to the appellees’ opposition to remand for the purpose of retaking the testimony of
three medical witnesses by stating that La. C.C.P. Art. 2131 provides the appellate court with authority to order
correction of a record, as well as their constitutional supervisory authority over the trial court under La. Const. Art.
7. Myles v. Procon, Inc., 259 So.2d at 78.
4

CONCLUSION

For the reasons assigned, we deny the motion of appellant, Pinnacle

Polymers, L.L.C. seeking a remand for retrial and grant the motion of appellee, St.

John the Baptist Parish, Sales, and Use Tax Office. We remand this case to the

trial court for the limited purpose of correcting the incomplete record, either by

stipulation of the parties pursuant to La. C.C.P. art. 2131 or by retaking the missing

testimony of the expert witness Dr. Klendworth. We shall leave the decision of

whether a material portion of Dr. Goodall’s testimony was omitted such that the

retaking of his testimony is required to the discretion of the trial court. We also

order a stay in this proceeding until the record is corrected and completed.

Upon receipt of the supplemental transcript, this Court will set briefing

deadlines and docket the case to a panel of judges.

REMANDED WITH INSTRUCTIONS

5

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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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
SEPTEMBER 24, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-310
E-NOTIFIED
BOARD OF TAX APPEAL (CLERK)
ROBERT J. BURVANT (APPELLANT) RUSSELL J. STUTES, JR. (APPELLEE)

MAILED
HONORABLE CADE R. COLE (DISTRICT J. GRANT COLEMAN (APPELLANT) RUSSELL J. STUTES, III (APPELLEE)
JUDGE) BRIAN A. CLARK (APPELLANT) ATTORNEY AT LAW
STATE OF LOUISIANA, BOARD OF TAX TIMOTHY S. MADDEN (APPELLANT) 600 BROAD STREET
APPEALS ATTORNEY AT LAW LAKE CHARLES, LA 70601
POST OFFICE BOX 3217 201 ST. CHARLES AVENUE
BATON ROUGE, LA 70821 SUITE 4500
NEW ORLEANS, LA 70170