Stevedoring Services of America v. Kahn
| Decision Date | 09 December 1998 |
| Docket Number | No. 98-CA-0926,98-CA-0926 |
| Citation | 726 So.2d 53 |
| Parties | STEVEDORING SERVICES OF AMERICA, INC./LOGISTIC SERVICES, INC. v. Marina M. KAHN, Director of Finance, City of New Orleans, Department of Finance. |
| Court | Court of Appeal of Louisiana — District of US |
David R. Cassidy, Avery Lea Griffin, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiffs/Appellants.
Joyce Gerdes Joseph, Deputy City Attorney Deborah L. Wilson, Chief Deputy City Attorney, Avis Marie Russell, City Attorney, New Orleans, LA, for Defendant/Appellee.
Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MIRIAM G. WALTZER.
Stevedoring Services of America, Inc. (SSA) and its subsidiary, Logistic Services, Inc. (LSI) sued the City of New Orleans and its director of finance to recover ad valorem taxes paid under protest pursuant to La.R.S. 47:2110. The property at issue, consisting of cranes permanently attached to barges (crane-barges) engaged in international trade, is domiciled in the Port of New Orleans.
SSA and LSI moved for summary judgment supported by affidavits seeking to establish the exemption of the property under La. Const. Art. 7, sec. 21(C)(16), which provides:
The City filed a cross motion for summary judgment. On 12 December 1997, judgment was rendered denying SSA's and LSI's motion and granting the City's motion, dismissing plaintiffs' claims; the trial court found that the crane-barges in question are not oceangoing and thus the exemption is not applicable. SSA and LSI took a suspensive appeal from that judgment. We affirm.
Ryan-Walsh, Inc., an owned subsidiary of SSA and LSI's predecessor in title, received a 1997 Business Personal Property Tax Bill, numbered X-XX-X-XXX-XX covering property located at 3 Nashville Avenue at the Mississippi River and consisting of inventory valued at $1,380, furnishings valued at $1,230 and machinery valued at $532,350. LSI issued its check in the amount of the assessed tax, $86,470.93, payable to the City of New Orleans together with a letter of 31 January 1997 informing the City that the tax was being paid under protest, claiming that a substantial portion of the property is exempt under La. Const. Art. 7 Sec. 21(C)(16).
According to the affidavit of LSI's New Orleans office manager, Sidney Hotard, the property in question consists of four cranes permanently attached to the barges Paddy Ryan, Frank L., Emory B., and Agnes B, domiciled in the Port of New Orleans. The cranes are critical components and appurtenances of the barges and are integrally related to the barges' functions in transferring only international cargo. The cranes in question load and unload cargo destined for foreign ports or coming from foreign ports. Domestic cargo is not transferred between an oceangoing vessel and a barge. The crane-barges's Coast Guard documentations were attached to the affidavit, showing the vessels to be domiciled in a Louisiana port, the Port of New Orleans. Hotard's supplemental affidavit establishes that the barges exclusively transfer international cargo and that the cranes are engaged in this transfer 99% of the time. The economic reason for the transfer of this international cargo to river barges is to avoid higher rail transit costs. His deposition establishes that the cranes are permanently attached to their respective barges. The crane-barges are certified to work within the inland waters of the United States, but not to go beyond the three-mile limit.
The affidavit of Tim Gerspacher, SSA's tax manager, established that a common parent owns LSI and Ryan-Walsh. The crane-barges in question were transferred from Ryan-Walsh to LSI, which assumed the obligation to pay the ad valorem taxes assessed on the crane-barges. Gerspacher confirmed the assessment and payment of the tax under protest. Gerspacher's supplemental affidavit establishes that Category 3 of Ryan Walsh's 1997 Personal Property Report form, a copy of which was attached, includes the Paddy Ryan, Frank L., Emory B. and the Agnes B. Gerspacher testified on deposition that the crane-barges stay on the river and international ships are unloaded using the cranes. The cranes deliver cargo to a river barge for further disposition.
The City submitted the affidavit of assessor Janyce Degan. Degan stated that she issued the subject tax bill based upon a personal property report from Ryan-Walsh from which she was unable to determine the nature, use or specific kind of property taxes. The Degan affidavit states, "To the best of her knowledge, she has not accessed [sic] any barges owned by Ryan-Walsh as exempt from taxation."
Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A. (2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. C.C.P. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).
An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by...
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