Opinion
2017 CA 1568
05-16-2018
DELOITTE TAX LLP v. AMEDISYS, INC. (A DELAWARE CORPORATION), ET AL.
Kyle M. Keegan Christopher D. Kiesel David A. Lowe J. Brian Juban Amber N. Robichaux KEEGAN, DENICOLA, KIESEL, BAGWELL, JUBAN & LOWE, LLC Baton Rouge, Louisiana Attorneys for Appellant/ Plaintiff-in-Exception - Deloitte Tax, L.L.P. Harry J. "Skip" Philips, Jr. John Ashley Moore Michael S. Walsh John M. Parker Clare E. Sanchez TAYLOR, PORTER, BROOKS & PHILLIPS L.L.P. Baton Rouge, Louisiana Attorneys for Appellees/ Defendants-in-Exception - Amedisys, Inc. (A Delaware Corporation), Amedisys Holding, L.L.C., and Amedisys Georgia, L.L.C.
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 648,095 | Section "24" The Honorable R. Michael Caldwell, Judge Presiding Kyle M. Keegan
Christopher D. Kiesel
David A. Lowe
J. Brian Juban
Amber N. Robichaux
KEEGAN, DENICOLA, KIESEL, BAGWELL,
JUBAN & LOWE, LLC
Baton Rouge, Louisiana Attorneys for Appellant/
Plaintiff-in-Exception - Deloitte
Tax, L.L.P. Harry J. "Skip" Philips, Jr.
John Ashley Moore
Michael S. Walsh
John M. Parker
Clare E. Sanchez
TAYLOR, PORTER, BROOKS & PHILLIPS L.L.P.
Baton Rouge, Louisiana Attorneys for Appellees/
Defendants-in-Exception -
Amedisys, Inc. (A Delaware
Corporation), Amedisys Holding,
L.L.C., and Amedisys Georgia,
L.L.C. BEFORE: GUIDRY, WELCH, CRAIN, THERIOT, AND HOLDRIDGE, JJ. WELCH, J.
This appeal involves claims filed by the appellees/defendants-in-exception, Amedisys, Inc. (A Delaware Corporation), Amedisys Holding, L.L.C., and Amedisys Georgia, L.L.C. (collectively, "Amedisys"), against the appellant/plaintiff-in-exception, Deloitte Tax, L.L.P. ("Deloitte"), pursuant to the Louisiana Accountancy Act ("Act").
The Louisiana Accountancy Act is found at La. R.S. 37:71, et seq. The process for establishing a public accountant review panel is found at La. R.S. 37:102.
To recap, Amedisys contracted with Deloitte from 2006 to 2014 for the performance of accounting services, including the preparation and the accounting for income taxes. The services provided by Deloitte to Amedisys were governed by written engagement letters executed by the parties. Each of the engagement letters indicated Deloitte's services were subject to its "General Business Terms" attached to the letters. The "General Business Terms" included clauses regarding 1) forum selection, 2) choice of law, and 3) limitation on actions. These clauses provided that all matters relating to the engagement agreements "shall be governed by, and construed in accordance with, the law of the State of New York" and "shall be brought and maintained exclusively" in either state or federal court in New York County in the State of New York not "more than one year after the cause of action has accrued."
In 2014, Amedisys alleged it discovered that one of its employees had embezzled over $7.6 million dollars through fraudulent wire transactions made from 2006 through 2014, which Amedisys claimed Deloitte should have discovered during its performance of accounting services for Amedisys. Less than one year after the discovery of the fraudulent transactions, Amedisys submitted a written request to the Society of Louisiana Certified Public Accountants ("Society"), seeking review of its claims against Deloitte by a public accountant review panel as set forth in the Act.
During the pendency of the public accountant review panel proceeding, Deloitte initiated a summary proceeding in district court by filing a peremptory exception raising the objection of prescription, arguing that the choice of law clauses contained in the "General Business Terms" attached to the engagement letters were binding under Louisiana law; therefore, New York substantive law governed Amedisys's claims. As set forth by the limitation on actions clauses contained in the "General Business Terms" attached to the engagement letters, which Deloitte averred were valid under New York law, Deloitte argued that Amedisys failed to submit its claims within one year of accrual; therefore, Amedisys's claims were prescribed. The district court overruled the objection of prescription filed by Deloitte, concluding that the choice of law clauses were contrary to a strong public policy of Louisiana, and thus, neither the choice of law clauses nor the limitation on actions clauses contained in the "General Business Terms" attached to the engagement letters were binding. The district court signed a judgment on October 3, 2016 in accordance with its ruling. Deloitte devolutively appeals the district court's October 3, 2016 judgment overruling the objection of prescription.
A certified public accountant or firm against whom a claim has been filed in a public accountant review panel proceeding may raise an exception, pursuant to La. R.S. 9:5604, in a court of competent jurisdiction and proper venue at any time without the need for completion of the public accountant review panel process. La. R.S. 37:108.
In a related writ application also decided this date, 2017 CW 1380-R, Deloitte seeks supervisory review of the district court's October 3, 2016 judgment overruling the objection of prescription.
On October 19, 2016, Deloitte filed supervisory writ application 2017 CW 1380 with this court. On May 12, 2017, we granted Deloitte's writ application, reversed the district court's October 3, 2016 judgment overruling the peremptory exception raising the objection of prescription, sustained the objection of prescription, and dissolved the public accountant review panel. See Deloitte Tax LLP v. Amedisys, Inc., 2016-1380 (La. App. 1st Cir. 5/12/17), 2017 WL 6603952 (unpublished writ action). Thereafter, Amedisys filed for a writ of certiorari with the Louisiana Supreme Court, which the supreme court granted on October 9, 2017, remanding the matter to this court for briefing, argument, and a full opinion. See Deloitte Tax LLP v. Amedisys, Inc., 2017-0988 (La. 10/9/17), 227 So.3d 827. --------
Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indem. Corp., 2002-0716 (La. App. 1st Cir. 4/30/03), 867 So.2d 715, 717. The appellate jurisdiction of this court extends to final judgments. See La. C.C.P. arts. 1911, 1915, and 2083. The overruling of a peremptory exception is an interlocutory order and not appealable. Such an interlocutory ruling does not prevent the party from asserting the defense of prescription in another exception or at a trial on the merits. A trial court has the authority to review an interlocutory order rendered by it and to change it if the earlier ruling would do substantial injustice. See Lee v. E. Baton Rouge Par. Sch. Bd., 623 So.2d 150, 154 (La. App. 1st Cir.), writ denied, 627 So.2d 658 (La. 1993); see also Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 2007-2206 (La. App. 1st Cir. 6/6/08), 992 So.2d 527, 530, writ denied, 2008-1478 (La. 10/3/08), 992 So.2d 1018; Robertson v. Sun Life Fin., 2011-0172 (La. App. 1st Cir. 6/10/11), 2011 WL 3558170, at *3 (unpublished). The district court's October 3, 2016 judgment overruling the peremptory exception raising the objection of prescription filed by Deloitte is not a final judgment subject to immediate appeal; it is an interlocutory judgment reviewable only under this court's supervisory jurisdiction. The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writ. See La. C.C.P. arts. 2083 and 2201; see also Matter of Succession of Porche, 2016-0538 (La. App. 1st Cir. 2/17/17), 213 So.3d 401, 406. Accordingly, we dismiss this appeal.
APPEAL DISMISSED.