NEEB SERVICE, LLC f/k/a NEEB SERVICE, INC.
NORMAN S. FOSTER, CHIEF FINANCIAL OFFICER AND DIRECTOR OF FINANCE OF THE CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE; ERROLL G. WILLIAMS, ASSESSOR, ORLEANS PARISH ASSESSOR; LOUISIANA TAX COMMISSION
Appeal from the 19th Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Trial Court
Number 637, 448 Honorable Donald R. Johnson, Judge Presiding
Douglas L. Salzer, Brian T. Leftwich, Bradley M. Driscoll New
Orleans, Louisiana Counsel for Plaintiff/Appellant, Neeb
J. Weiler Christian N. Weiler Reese F. Williamson New
Orleans, Louisiana Counsel for Defendant/ Appellee, Erroll G
Williams, Orleans Parish Assessor
BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
Neeb Service, LLC (Neeb), appeals two judgments: the first
granting summary judgment and dismissing Neeb's petition
for refund of ad valorem taxes paid under protest, and the
second denying Neeb's motion for new trial and taxing it
with all costs. For the reasons that follow, we affirm.
AND PROCEDURAL HISTORY
the owner of the Captain Jim, a floating crane barge used to
transfer cargo between river barges and oceangoing vessels.
In December of 2014, Neeb received a 2015 Business Personal
Property Tax Bill, numbered 614100097, relating to the
Captain Jim, from the City of New Orleans, Bureau of the
Treasury. Neeb remitted full payment of the assessed tax,
$48, 945.14, together with a letter informing the City of New
Orleans that it was paying the tax bill under protest
pursuant to La. R.S. 47:2134, claiming that the vessel is
exempt from ad valorem taxation under La. Const. Art. 7, Sec.
21(C)(16). Thereafter, Neeb filed this suit against Erroll G.
Williams, in his official capacity as the Orleans Parish
Assessor (Assessor), to recover the amount paid under
protest, plus interest.
filed a motion for summary judgment, asserting that the
Captain Jim does not qualify for the ad valorem tax exemption
afforded under La. Const. Art. 7, Sec. 21(C)(16), as it is
not an "oceangoing barge." Neeb opposed the motion.
Following a hearing, the trial court signed a judgment on
December 21, 2016, granting Assessor's motion for summary
judgment and dismissing Neeb's suit with prejudice, with
each party to bear its own costs. Neeb filed a request for
written reasons and a motion for new trial. Assessor opposed
the motion for new trial and filed a motion to impose court
costs pursuant to La. R.S. 13:4521. Following a hearing, the
trial court signed a judgment on April 10, 2017, denying
Neeb's motion for new trial and ordering that Neeb be
taxed with the defendants' deferred costs. Neeb appealed
contends that the trial court erred as a matter of law in
ruling that a barge must be "oceangoing" to be
exempt from ad valorem taxes under La. Const. Art. 7, Sec.
21(C)(16). Neeb further contends that this error led the
trial court to erroneously grant summary judgment in favor of
Assessor, resulting in an illegal tax assessment on
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. Code Civ. Pro. art. 966A(3). The
summary judgment procedure is favored and is designed to
secure the just, speedy, and inexpensive determination of
every action. La. Code Civ. Pro. art. 966A(2).
burden of proof is on the mover. La. Code Civ. Pro. art.
966D(1). 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 does
not require that all essential elements of the adverse
party's claim, action, or defense be negated. Rather, the
mover must point out to the court that there is an absence of
factual support for one or more elements essential to the
adverse party's claim, action, or defense. Thereafter,
the adverse party must 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. Code Civ. Pro. art. 966D(1). If, however, the mover
fails in his burden to show an absence of factual support for
one or more of the elements of the adverse party's claim,
the burden never ...