KIMBERLY L. ROBINSON, SECRETARY OF DEPARTMENT OF REVENUE, STATE OF LOUISIANA
MANTLE OIL & GAS, LLC
Appeal from the Nineteenth Judicial District Court In and for
the Parish of East Baton Rouge State of Louisiana Docket No.
646-215 Honorable William Morvant, Judge Presiding
Simien, Jr. Jimmy Simien Ashley E. Philen Baton Rouge,
Louisiana Counsel for Plaintiff/Appellant Kimberly L.
Robinson, Secretary of Revenue, State of Louisiana
Taylor Darden Seth E. Bagwell New Orleans, Louisiana Counsel
for Defendant/Appellee Mantle Oil & Gas, LLC
BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.
appeal, the defendant challenges the trial court's
judgment that granted summary judgment in favor of the
plaintiff, ordered a refund of oil severance taxes paid under
protest, and dismissed the matter with prejudice. For the
reasons that follow, we affirm.
AND PROCEDURAL HISTORY
Oil & Gas, LLC (Mantle), an oil and gas limited liability
company domiciled in Texas, is the owner and operator of the
Dugas & LeBlanc Well located on the Dugas & LeBlanc
Co., Ltd. lease (the Dugas & LeBlanc Lease) in the
Napoleonville Field in Assumption Parish. Until April 2015,
Mantle also owned and operated the Roberts Well on the Adele
Roberts lease (the Roberts Lease) in the LeBlanc Field in
the Dugas & LeBlanc Well, Mantle sells the oil produced
from that well to Central Crude, Inc. (Central) pursuant to a
written oil purchase contract. Central's trucks pick up
the oil stored in Mantle's tanks on the Dugas &
LeBlanc Lease and transport the oil off the property.
Pursuant to the purchase contract, Central deducts $1.80 per
barrel from the price paid for Mantle's oil. Mantle then
pays the Louisiana Department of Revenue (Department) 12.5%
of the price it receives from Central for the sale of the oil
as severance taxes.
the Roberts Well, Mantle sold the oil produced from that well
to Plains Marketing, LP (Plains) pursuant to a verbal
agreement based on "Plains South Louisiana Swett Posted
Price, " plus a $.96 premium beginning January 1, 2009.
On April 1, 2013, Plains increased the premium to $15.50. In
April of 2015, Mantle sold its interest in the Roberts Well
on the Roberts lease and terminated its purchase agreement
of 2015, the Department began an audit review of Mantle's
severance tax payments from January 1, 2012, through December
31, 2014, on oil produced from the Dugas & LeBlanc Well
and the Roberts Well. The Department's preliminary
findings were questioned by Mantle, and Mantle responded with
information and documentation maintaining that it had
properly paid all severance taxes due for the audit period.
The Department revised its findings, but determined that
Mantle still owed taxes, and sent a Notice of Assessment to
Mantle in the amount of $73, 461.31 for unpaid oil severance
taxes, interest, and penalties. The additional taxes that
were alleged to be owed were based on the Department's
inclusion of the $1.80 per barrel amount in gross receipts
for the Dugas & LeBlanc Well and on the Department's
"posted field price" for the Roberts Well. On
February 5, 2016, in accordance with statutory requirements,
Mantle sent a letter to the Department, enclosing its check
in the amount of $73, 461.31 as payment under protest and
providing notice of its intent to file suit because it did
not agree that any taxes, interest, or penalties were owed.
February 29, 2016, Mantle filed its petition against the
Department to recover the protested tax payment. Thereafter,
the Department filed its answer, and on December 2, 2016,
Mantle filed a motion for summary judgment. Following a
hearing, the trial court granted the motion for summary
judgment, finding that Mantle had properly paid all severance
taxes that were due and rejected the Department's
assessment of additional taxes, interest, and penalties. The
trial court signed a judgment on April 28, 2017, ordering the
refund of Mantle's payment under protest and dismissing
the matter with prejudice. The Department suspensively
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. LSA-C.C.P. art. 966A(3). The summary
judgment procedure is favored and shall be construed to
secure the just, speedy, and inexpensive determination of
every action. LSA-C.C.P. art. 966A(2).
the issue before the court on the motion for summary judgment
is one on which the party bringing the motion will bear the
burden of proof at trial, the burden of showing there is no
genuine issue of material fact remains with the party
bringing the motion. See LSA-C.C.P. art. 966D; Fouquet v.
Daiquiris & Creams of Mandeville, LLC, 10-0233
(La.App. 1 Cir. 9/13/10), 49 So.3d 44, 46. When a motion for
summary judgment is made and supported, an adverse party may
not rest on the mere allegations or denials of his pleading,
but his response, by affidavits or as otherwise provided,
must set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary judgment,
if appropriate, shall be rendered against him. LSA-C.C.P.
art. 967B. Further, summary judgment is subject to de
novo review on appeal, using the same standards
applicable to the trial court's determination of the
issues. Mabile's Trucking, Inc. v. Stallion Oilfield
Services, Ltd., 15-0740 (La.App. 1 Cir. 1/8/16), 185
So.3d 98, 101, writ denied, 16-0251 (La. 4/4/16),
190 So.3d 1207.
in a motion for summary judgment, the "only documents
that may be filed in support of or in opposition to the
motion are pleadings, memoranda, affidavits, depositions,
answers to interrogatories, certified medical records,
written stipulations, and admissions." LSA-C.C.P. art.
966A(4). Additionally, "[supporting and
opposing affidavits shall be made on personal knowledge,
shall set forth such facts as would be admissible in
evidence, and shall show ...