53 So. 3d 561
La. Ct. App.2010Background
- Mouton, a shareholder and officer/director figure in Hebert's Superette, Inc. and Hebert's of Henderson, Inc., sues to collect on two promissory notes totaling $175,000 each, with ten yearly installments of $17,500.
- Notes were executed January 31, 2008; June 15, 2008 installment payments were fully tendered, after which defendants began withholding federal taxes from Mouton.
- Defendants tendered partial payments in 2009 and 2010, sending $9,628.95 and $86,342.35 respectively, which Mouton rejected as incomplete payments and demanded full amounts.
- Shortly before consolidation, defendants asserted peremptory exceptions of no cause of action and immunity, and alternative summary judgment, which the trial court granted as to immunity via a peremptory exception.
- Trial court held that 26 U.S.C. § 3403 immunizes employers from tax-withholding liability; Mouton appeals on both the procedural vehicle and the immunity defense.
- Appellate court reverses, holding immunity is an affirmative defense, not subject to a peremptory exception, and remands for summary judgment review on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a peremptory exception proper for attacking federal tax withholding immunity? | Mouton argues immunity is not properly raised by peremptory exception. | Defendants contend immunity can be raised via peremptory exception. | Immunity is an affirmative defense; peremptory exception improper. |
| Does 26 U.S.C. § 3403 immunity bar Mouton's claims as a matter of law? | Immunity does not bar claims because payments may not be wages. | Immunity can bar claims if payments are wages and withholding was required. | Immunity is an affirmative defense; review must proceed on summary judgment with full record. |
| What is the proper procedural vehicle to resolve the immunity defense (and related factual questions)? | Trial should determine merits; not preclude as a matter of law via a peremptory exception. | Immunity can be resolved on summary judgment. | Remand for summary judgment on the affirmative defense; not de novo review. |
Key Cases Cited
- Rogers v. State, ex rel. Department of Public Safety and Corrections, 974 So.2d 919 (La. App. 3 Cir. 2008) (affirmative defenses recognized for immunity akin to other statutes)
- Zulli v. Coregis Insurance Co., 910 So.2d 437 (La. App. 5 Cir. 2005) (recreational use statutes treated as affirmative defense)
- Brown v. Adair, 846 So.2d 687 (La. 2003) (workers' compensation immunity as an affirmative defense)
- Walls v. Am. Optical Corp., 740 So.2d 1262 (La. 1999) (immunity as substantive defense; not merits-defeating per se)
- Teasley v. Ates, 861 So.2d 778 (La. App. 3 Cir. 2003) (affirmative defenses recognized in immunity context)
- Deshotel v. Guichard Operating Co., Inc., 916 So.2d 72 (La. 2004) (summary judgment appropriate for affirmative defenses)
- Herrin v. Perry, 215 So.2d 177 (La. App. 3 Cir. 1968) (distinguished as sovereign immunity, not applicable here)
- Corley v. Village of Florien, 889 So.2d 364 (La. App. 3 Cir. 2004) (doctrines of judicial/prosecutorial immunity not affirmative defenses)
- Marquis v. Cantu, 371 So.2d 1292 (La. App. 3 Cir. 1979) (illustrates limitations on peremptory exceptions for certain immunities)
- Alside Supply Co. v. Ramsey, 306 So.2d 762 (La. App. 4 Cir. 1975) (affirmative defenses and procedural vehicle distinction)
- Weil v. State Farm Fire & Cas. Co., 323 So.2d 524 (La. App. 4 Cir. 1975) (affirmative defense analysis in immunity context)