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Neeb Service, LLC v. Foster

Court of Appeals of Louisiana, First Circuit

January 29, 2018

NEEB SERVICE, LLC f/k/a NEEB SERVICE, INC.
v.
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

         On 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 Service, LLC

          John 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.

          PENZATO, J.

         Plaintiff, 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.

         FACTS AND PROCEDURAL HISTORY

         Neeb is 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.[1]

         Assessor 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 both judgments.

         ASSIGNMENT OF ERROR

         Neeb 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 Neeb's barge.[2]

         LAW AND DISCUSSION

         After 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).

         The 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 ...


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