author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    ST. BERNARD I, LLC v. Erroll G. WILLIAMS, Assessor, Parish of Orleans; Normal Foster, Director of Finance for the City of New Orleans; Department of Finance, Bureau of the Treasury, City of New Orleans; City of New Orleans and the Louisiana Tax Commission.
    No. 2012-CA-0372.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 2013.
    Rehearing Denied April 5, 2013.

      Thomas M. Beh, Yvonne Chalker, Gary J. Elkins, Elkins, PLC, New Orleans, LA, for Plaintiff/Appellee, St. Bernard I, LLC.
    Wayne J. Neveu, Foley & Judell, L.L.P., New Orleans, LA, for Appellee, Housing Authority of New Orleans.
    John J. Weiler, Christian N. Weiler, Erin J. Benoit, Weiler <& Rees, LLC, New Orleans, LA, for Defendants/Appellants, Errol G. Williams, Assessor, Parish of Orleans, et al.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

| T This appeal arises from a series of contracts executed in order to confect an agreement to redevelop housing on the former site of the St. Bernard Public Housing Development. The Orleans Parish tax assessor asserts that the act of transfer from St. Bernard I, LLC did not transfer ownership of the improvements to the Industrial Development Board and that therefore, improvements situated on the site are subject to ad valorem taxation. St. Bernard I, LLC filed a motion for summary judgment asserting that it did not own the improvements and should not be taxed. The tax assessor then filed a cross-motion for summary judgment averring that St. Bernard I, LLC retained ownership of the improvements and was subject to taxation. The trial court granted St. Bernard I, LLC’s motion for summary judgment. We find that no genuine issues of material fact exist as to the tax exempt status of the improvements and affirm. We also find that the trial court did not abuse its discretion in granting the petition for intervention and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

St. Bernard I, LLC (“St. Bernard”) is developing the former site of the St. Bernard Public Housing Development into a mixed income, mixed use, multi-family rental housing development (“Development”). The first phase (“Phase I”) |2of the development, consisting of 466 residential units (“Improvements”), was completed in November 2010. The Improvements were built upon land owned by the Housing Authority of New Orleans (“HANO”). HANO leased the land to St. Bernard pursuant to the Capital Ground Lease (“Ground Lease”), dated September 24, 2007, and the Amended and Restated Ground Lease, December 8, 2008. The Amended Ground Lease has a term of 99 years. In Section 6.4.3 of the Ground Lease, HANO and St. Bernard acknowledged that the property, defined to include both the land and any Improvements constructed or to be constructed on that land, was anticipated to be exempt from all state and local government real estate taxes, other than the anticipated payment-in-lieu-of-taxes (“PILOT”). The PILOT agreement was confected under contemporaneous agreements executed between St. Bernard and the Industrial Development Board (“IDB”).

St. Bernard then acquired the participation of the IDB, a public corporation and instrumentality of the City of New Orleans, organized and existing under the laws of the State of Louisiana. The IDB is authorized and empowered by law, including particularly the provisions of Chapter 7 of Title 51 of the Louisiana Revised Statutes (the “IDB'Act”), to issue taxable and tax-exempt revenue bonds and other obligations, to acquire land and other immovable property, to construct, purchase or renovate buildings, and to promote “Development Projects” as defined under the IDB Act, that are determined by the IDB to be instrumental to the removal of blight or the redevelopment of distressed areas, or to promote economic development through the creation of jobs within the City of New Orleans.

La. R.S. 51:1160 provides that “the corporation and all properties at any Rtime owned by it and the income therefrom and all bonds issued by it and the income therefrom shall be exempt from all taxation in the state of Louisiana.” The IDB passed a resolution regarding a PILOT program, which read as follows:

WHEREAS, the Board of Directors [of the IDB] has concluded that the acquisition, construction and equipping of each Project at the various public housing development sites will be instrumental to the removal of blight, the redevelopment of distressed areas and the promotion of economic development.

Then, the IDB entered into an Act of Transfer with St. Bernard, wherein St. Bernard transferred ownership of “Property and Improvements on the land leased by HANO to the IDB on December 8, 2008. The Act of Transfer included the following:

Transferor [St. Bernard] does by these presents grant, bargain, sell, convey, transfer, assign, set over, abandon and deliver, with all legal warranties and with full substitution and subrogation in and to all the rights and actions of warranty which it has or may have against all preceding owners and vendors, unto the Transferee [the IDB], herein present, accepting and purchasing for itself, its successors and assigns, and acknowledging due delivery and possession thereof, all and singular, all of Transfer- or’s right, title and interest in the PROPERTY AND ALL IMPROVEMENTS on the Property described in Exhibit A hereto, defined hereinabove as the “Property” and the “Improvements”.

Once St. Bernard conveyed the ownership of the Improvements to the IDB, the IDB entered into a Sub-Lease and Sub-Sub-Lease (collectively “IDB Lease”) with St. Bernard. The IDB Lease subleased the land to St. Bernard and leased the future Improvements to St. Bernard. The IDB Lease included a PILOT agreement, wherein St. Bernard would pay rent.

In 2011, Erroll Williams, as the tax assessor for Orleans Parish, reviewed the public records regarding the Improvements and determined that St. Bernard 1 retained ownership of the Improvements. St. Bernard was then assessed and billed $453,377.62 for ad valorem taxes on the Improvements constructed on the land owned by HANO. St. Bernard paid the taxes under protest.

Subsequently, St. Bernard filed a petition for judicial review against Assessor Williams; Norman Foster, in his capacity as the City of New Orleans’ Director of Finance; the Department of Finance, Bureau of the Treasury, City of New Orleans; the City of New Orleans; and the Louisiana Tax Commission (collectively “Assessor Williams”) asserting that it did not own the Improvements, that the Improvements were subject to a taxation exemption, and seeking a refund of the taxes paid under protest. HANO filed a petition for intervention, which was granted by the trial court. St. Bernard then filed a motion for summary judgment asserting that the IDB owned the Improvements. Assessor Williams filed a cross-motion for summary judgment contending that the Act of Transfer was a simulation and that it did not transfer ownership of the Improvements.

The trial court denied Assessor Williams’ cross-motion for summary judgment and granted St. Bernard’s motion for summary judgment. The trial court further held that:

(1) That the 466 mixed income housing units built by St. Bernard on the old St. Bernard Housing Project site (“Improvements”) were transferred to and are owned by the Industrial Development Board for the City of New Orleans, Louisiana, Inc. (“IDB”) and are exempt from Orleans Parish ad valorem taxation pursuant to LSA R.S. 51:1152(B);
(2) That Defendants, Erroll G. Williams, Assessor, Parish of Orleans, State of Louisiana, Norman Foster, Director of Finance for the City of New Orleans, the Department of Finance, Bureau of the Treasury, City of New Orleans, City of New Orleans and the Louisiana Tax Commission reverse the ad valorem tax assessed against St. Bernard for 2011 for tax bills 37W412816, 37W412808, 37W412802, 37W412841, 37W412833, and 37W412824 Land paid under protest in the amount of $453,377.62, with interest in accordance with law; and
(3) That the Assessor be and hereby is ordered to amend the City’s tax rolls to correctly reflect that the Improvements at issue in this matter are exempt from ad valorem taxation.

Assessor Williams’ motion for suspensive appeal followed, which sought to appeal only the judgment regarding the motions for summary judgment.

Assessor Williams asserts on appeal that the trial court erred in denying his cross-motion for summary judgment and granting St. Bernard’s motion for summary judgment. Specifically, Assessor Williams avers that the Improvements are owned by St. Bernard, that the Act of Transfer did not transfer ownership of the Improvements to the IDB, that the result was “dual ownership” of the Improvements, that the true intent of the parties was a simulation, and that the trial court erred in granting HANO’s request for intervention.

STANDARD OF REVIEW

Appellate courts review trial courts’ ruling on motions for summary judgment de novo. Sanchez v. Harbor Const. Co., Inc., 07-0234, p. 4 (La.App. 4 Cir. 10/3/07), 968 So.2d 783, 786. “An appellate court reviews a trial court’s decision granting summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment.” Id. “‘An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appell[ee] is entitled to judgment as a matter of law.’ ” Williams v. Mem’l Med. Ctr., 03-1806, p. 13 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1052-53, quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750.

| ¡/‘The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). As to the burden of proof, the burden:

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). “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions.” MeritPlan Ins. Co. v. DeSalvo, 03-1493, p. 3 (La.App. 4 Cir. 3/24/04), 871 So.2d 461, 463. “The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2).

OWNERSHIP OF IMPROVEMENTS

Assessor Williams asserts that the trial court erroneously granted St. Bernard’s motion for summary judgment because the Improvements are either owned by St. Bernard or both St. Bernard and the IDB, and that the contracts entered into constituted a simulation. Assessor Williams’ contends that this Court’s recent ruling in Abundance Square Assocs., L.P. v. Williams, 10-0324 (La.App. 4 Cir. 3/23/11), 62 So.3d 261, is controlling. We disagree.

“Louisiana Const. Art. VII, § 21(A) provides that ‘[p]ublic lands [and] other 17public property used for public purposes’ are exempt from ad valorem taxation.” Abundance, 10-0324, p. 5, 62 So.3d at 263, quoting La. Const. Art. VII, § 21(A). “ ‘Exemptions from taxation are strictly construed, an exemption being an exceptional privilege which must be clearly and unequivocably and affirmatively established.’ ” Abundance, 10-0324, p. 5, 62 So.3d at 263-64, quoting Holley v. Plum Creek Timber Co., Inc., 38,716, p. 7 (La.App. 2 Cir. 6/23/2004), 877 So.2d 284, 290. “To be exempt under La. Const. Art. VII, § 21(A), the property must be public, and it must be used for a public purpose.” Abundance, 10-0324, p. 5, 62 So.3d at 264.

This Court, in Abundance, stated that determining public or private ownership alone was insufficient “to attain tax exempt status.” Abundance, 10-0324, p. 10, 62 So.3d at 267. Further, this Court reiterated that establishing how revenue from the property is utilized is a helpful factor in considering whether the property is dedicated to a public use. Id. Our final holding provided that:

[t]o the extent the plaintiffs are contractually and legally obligated to operate and maintain forty-eight (48) rental units in the Abundance Square Apartments and twenty-three (23) in the Treasure Village Apartments as public housing or PHA-Assisted Units, we conclude those units have been dedicated to public use, clearly serve a public purpose and, thus, are exempt from ad valorem taxes under Louisiana Const. Art. VII, § 21(A).

Abundance, 10-0324, pp. 11-12, 62 So.3d at 267.

The Improvements in the case sub judi-ce consist of 466 mixed-income housing units with seven public housing only units, 160 low income housing units, and 149 units that bear no income or rent restrictions. According to this Court’s reasoning in Abundance, the existence of 309 units labeled as non-public housing Runits presents genuine issues of material fact as to whether the entirety of the Improvements are eligible for tax exempt status.

However, Abundance is distinguishable, as it did not include the IDB or the statutes pertaining thereto. La. R.S. 51:1160 states that property owned by the IDB is exempt from taxation. Additionally, Assessor Williams’ purported factual questions regarding the ownership of the Improvements are resolved by reviewing the Act of Transfer and the IDB Lease.

This Court examined the usage of summary judgment procedure regarding a series of contracts, PILOT payments, and the IDB Act in Bank of New York v. Williams, 00-1922, p. 9 (La.App. 4 Cir. 8/22/01), 796 So.2d 69, 76. Having found that summary judgment was properly granted in favor of upholding the contracts at issue, we stated that:

[t]hese documents have not been challenged as inaccurate or invalid, nor have the defendants offered any additional contracts suggesting a subsequent modification of the contractual terms, as would be necessary to defeat summary judgment under Civil Procedure article 967. .

Bank of New York, 00-1922, pp. 9-10, 796 So.2d at 76. We find this analysis applicable to the case subjudice.

While Assessor Williams asserts that the Act of Transfer and the IDB Lease did not transfer ownei’ship of the Improvements and constituted a simulation, we agree with the trial court’s assessment that there was no need to look beyond the four corners of the contracts presented. The trial court stated:

that it’s not your run of the mill transfer of property jnwhere one owner sells everything, land and improvements to another. This isn’t that kind of transaction. It is a transaction pursuant to the Industrial Development Board’s enabling legislation for the purpose of economic development in the City.

Further, no “additional contracts suggesting a subsequent modification of the contractual terms, as would be necessary to defeat summary judgment under Civil Procedure article 967.” Bank of New York, 00-1922, pp. 9-10, 796 So.2d at 76. Summary judgment procedure is favored and the Act of Transfer and the IDB Lease were executed in compliance with the legislatively created IDB Act. Therefore, we find that, from the plain reading of the Act of Transfer and the IDB Lease, that the IDB is the owner of the Improvements. Thus, the trial court did not err in granting St. Bernard’s motion for summary judgment because the tax exemption is mandated by the IDB Act.

PETITION FOR INTERVENTION

Assessor Williams avers that the trial court erred by granting HANO’s petition for intervention, but did not seek supervisory review of this interlocutory ruling. However, the Louisiana Supreme Court stated that:

[t]he general rule undoubtedly is, as stated from time to time by this court, that an interlocutory judgment which does not cause irreparable injury is not appealable. (See also Article 2083 of the Code of Civil Procedure.) But this does not mean that such judgments are never subject to appellate review. It merely means that they are not independently and immediately appealable, and that appellate review thereof must await rendition of an appealable judgment in the cause. There are innumerable sorts of interlocutory judgments which, as such, are not independently appealable — i.e., overruling of pleas of prescription, of non-joinder of parties, of lis pendens, of exceptions of no cause and no right of action, etc. Nevertheless, when a judgment is rendered in the case which is appealable, the reviewing court can then consider the correctness of the prior interlocutory judgment.

People of Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752, 753 (1968). See also Walters v. Canal Motors, Inc., 240 So.2d 101, 103 (La.App. 4th Cir.1970).

Incidental actions, like a petition for intervention, “may be filed with leave of court ‘if it will not retard the progress of the principal action.’ ” Charia v. Allstate Ins. Co., 635 So.2d 370, 372 (La.App. 4th Cir.1994), quoting La. C.C.P. art. 1033. “A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto.” La. C.C.P. art. 1091. The third party must either join the plaintiff by “demanding the same or similar relief,” “[ujniting with the defendant,” or oppose “both plaintiff and defendant.” La. C.C.P. art. 1091. The intervenor must also “ ‘have a justiciable interest in, and a connexity to, the principal action.’ ” Leger v. Kent, 01-2241, p. 3 (La.App. 4 Cir. 4/24/02), 817 So.2d 305, 307-08, quoting Atchley v. Atchley, 97-474, pp. 2-3 (La.App. 5 Cir. 1/14/98), 707 So.2d 458, 459. This Court elaborated on the two requirements as follows:

[A] ‘justiciable right’ as used in interpreting Article 1091 means the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it. If that right does exist, then, in order to intervene it must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on intervenor’s rights. The connexity requirement is essential.

Leger, 01-2241, p. 3, 817 So.2d at 308, quoting Amoco Prod. Co. v. Columbia Gas Transmission Corp., 455 So.2d 1260, 1264 (La.App. 4th Cir.1984). “A court has broad discretion in deciding whether to allow an intervention after the answer to the principal demand has been filed.” Charia, 635 So.2d at 372. Therefore, we must determine if the trial court abused its discretion in permitting HANO to intervene in the litigation.

When Assessor Williams contested the identity of the lessee of the land owned by HANO, HANO’s legal interest as lessor of that land was questioned because St. Bernard leased its interest in the Ground Lease to the IDB. The litigation also involves the intention of HANO’s that the Improvements would be exempt from ad valorem taxation. Both of the above facts demonstrate that HANO has a justiciable interest in the outcome of the litigation and a connexity to the principal action. Therefore, we find that the trial court did not abuse its discretion in granting HANO’s petition for intervention and affirm.

DECREE

For the above-mentioned reasons, we find that no genuine issues of material fact exist as to the tax exempt status of the Improvements and affirm. We also find that the trial court did not abuse its discretion in granting HANO’s petition for intervention and affirm.

AFFIRMED.

BELSOME, J., concurs in part, dissents in part with reasons.

BELSOME, J.,

concurs in part, dissents in part with reasons.

hi agree with the majority in finding that the trial court did not abuse its discretion in granting HANO’s petition for intervention. However, I respectfully dissent with its opinion as it relates to the ownership of the improvements.

This controversy surrounds language found in an act of transfer and a correlating lease that purported to allocate ownership of the improvements to the IDB, who is tax-exempt under state law, while allowing St. Bernard, LLC to retain ownership for purposes of depreciation under federal law. The issue before us is whether an act of transfer can grant this type of bifurcated ownership in the same property while remaining consistent with the concepts and principles embodied in the civil code?

Since ownership is a right that confers direct, immediate, and exclusive authority over a thing, the answer must be no. La. C.C. art. 477; See also Wilson v. Aetna Ins. Co., 161 So. 650, 652 (La.App. 2 Cir.1935) (where the court found that the owner of a thing may use, enjoy, and dispose of thing within the limits and Lunder the conditions established by law). Here, St. Bernard maintained the same authority over the improvements before and after the transfer, indicating that there was no transfer of ownership.

The question then becomes whether St. Bernard truly intended to transfer ownership of the improvements to the IDB in the first place. If the contract, by mutual agreement, did not reflect the true intent of the parties, then the contract is a simulation. La. C.C. art.2025. When the parties intend that their contract produce different effects from those recited in the contract, a relative simulation occurs. La. C.C. art.2027.

Louisiana law has long recognized that certain contracts of sale of immovable property containing a right of redemption and unaccompanied by delivery of the thing sold are merely pignorative contracts intended to secure the party borrowing funds (the vendor) not to transfer property onerously. Matter of Dibert, Bancroft & Ross Co., Ltd., 117 F.3d 160, 177 (5th Cir.1997); See also Lerner Shops of Louisiana, Inc. v. Reeves, 73 So.2d 490, 495-97 (La.App. 1 Cir.1954) (construing purported sale and leaseback of immovable property as a pignorative contract or security device when arrangement provided (1) the vendor with an option to repurchase the realty from the purchaser during the term of the lease and for the consideration paid by the purchaser and (2) the purchaser with the right to compel the vendor to repurchase the realty during the same period and for the same amount).

In this case, the IDB issued bonds to St. Bernard in the amount of $4, 295, 000.00 to assist in funding. St. Bernard transferred ownership of the improvements to the IDB, and the IDB leased the same improvements back to St. Bernard. The IDB lease included a PILOT agreement wherein St. Bernard would | spay nothing in rent; yet it holds the exclusive right to set and collect rent payments from the 400 plus mixed-income housing units. The lease terminates on the date that the bonds are paid and discharged. At termination, the IDB is required to re-convey the property to St. Bernard for ten dollars, when the public and private financing received to fund the improvements was over 100 million dollars.

The fact that the IDB lease terminates once the bonds are paid and St. Bernard will retain ownership for ten dollars, makes it apparent that the parties intended to form a security contract for the bond indebtedness, not a transfer in ownership. Significantly, the degree of St. Bernard’s authority over the improvements never changed, and it further acknowledges ownership for federal tax purposes. Thus, I would find that the act of transfer constituted a simulation.

Accordingly, I would grant the Assessor’s cross-motion for summary judgment, and find that St. Bernard, a for-profit company, cannot deny ownership with respect to the State for payment of ad valorem taxes but acknowledge ownership to the federal government for depreciation purposes.

      . Phase I was financed by a complex financial scheme made up of both public and private entities.

      . The ground lease between HANO and St. Bernard is not disputed.

      . The IDB Lease states that there will be 310 "non-public housing units.”

      . "LSA-C.C. Art.2046 sets forth a general rule of construction, providing that '[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.' " Brown v. Drillers, Inc., 630 So.2d 741, 748 (La.1994), quoting La. C.C. art.2046. "Louisiana courts, however, have tempered that jurisprudential rule, recognizing that absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the instrument to ascertain intent.” Brown v. Drillers, Inc., 630 So.2d 741, 749 (La.1994).

      . IDB is the Industrial Development Board of the City of New Orleans, Louisiana, Inc.

      . Notably, the parties do not purport to be co-owners, wherein they would both share an undivided interest in the same property. See La. C.C. art. 480.

      . PILOT is a payment-in-lieu-of-taxes.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Lexine SCHERER and Deborah Constantino, Plaintiffs-Appellants v. PNK (BOSSIER CITY), INC., et al, Defendant-Appellee.
    No. 47,901-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 20, 2013.
    Valteau, Harris, Koenig & Mayer, New Orleans, LA, by J. Nelson Mayer, III, Edmond J. Harris, for Appellants.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by Alexander J. Mijalis, for Appellee, PNK (Bossier City), Inc., d/b/a Boomtown Bossier City.
    Gaudry, Ranson, Higgins & Germillion, Gretna, LA, by A. Mark Flake, Daryl A. Higgins, for Appellee.
    Before STEWART, CARAWAY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

Lin this trip and fall case, the trial court granted the defendant’s motion for summary judgment. Plaintiffs fell in defendant’s casino at a place where the flooring changed from a concrete ramp to a tiled portion of the building, with a slight rise or bump of approximately one-half inch. At the time of their fall, one plaintiff was pushing the other who was seated on a walker which contained a fold-down seat. Our review of the record does not reveal disputed facts concerning the bump in the floor, which we find does not present an unreasonable risk of harm. Accordingly, the judgment of the trial court is affirmed.

Facts

The plaintiffs, Deborah Constantino (“Constantino”) and her elderly mother, Lexine Scherer (“Scherer”), were overnight guests of the Boomtown hotel and casino (“Boomtown”). On October 31, 2007, the plaintiffs were traveling across the indoor walkway that connects Boom-town’s casino to its hotel lobby. Scherer used the aid of a push walker to ambulate. The walker has four wheels and a seat that folds down. On this occasion, when Scherer became tired, she sat down on the walker while Constantino pushed her up the incline toward the hotel lobby. Neither one of them had ever used the walker in this way.

The record indicates that plaintiffs had previously traversed the walkway three times during their stay. At the time of the accident, when they reached the threshold that separates the flooring between the casino and hotel lobby, the plaintiffs allege that the wheels of the walker hit a | ¡¡metal transition strip that connected the two floors, jolting them forward and causing both to fall to the floor. While Constanti-no was able to get up from the fall, her mother remained motionless on the floor until the paramedics arrived. Both plaintiffs allege that they sustained injuries as a result of this accident. Upon the arrival of the paramedics, a picture of the accident site was taken with Scherer lying on a stretcher extending across the transition strip at the place of the irregularity in the floor.

On October 30, 2008, the plaintiffs filed a petition for damages. Thereafter, the defendants filed a motion for summary judgment. Both parties submitted the plaintiffs’ depositions and the plaintiffs’ expert’s deposition. Additionally, the photographs of the accident site and walker were filed. The defendant also submitted the affidavits of two Boomtown employees who reported that the flooring had remained unaltered since it was constructed in 2002 and that no prior tripping accidents had occurred.

Scherer stated in her deposition that upon the “hit, I went over backwards.” From Constantino’s account, she stated that “all of a sudden, she got jolted, and when she got jolted, the wheel — that thing was going backwards.” While the plaintiffs testified that they did not see a defect in the floor, Constantino admitted that her line of view was blocked by her mother. According to Constantino, her mother had never ridden in the walker before, and she will never do so again after this accident.

Knox Tumlin (“Tumlin”) was qualified as the plaintiffs’ expert in this case. Tumlin reviewed the Americans with Disabilities Act (“ADA”) regulations, the site, the current condition of the construction, and |sphotographs of the accident scene, but he did not interview the plaintiffs or examine the walker. Tumlin described the two different defects in the location where Scherer and Constantino fell as follows:

The poured concrete surface has some irregularities, pattern in it, so that there are depressions in the surface. When the tile surface was placed on top of it and the transition strip, in the area where the lady is shown to be mobilized and believe to have fallen, the transition strip cuts across this irregularity. This creates two problems. First of all, the ADA Codes require that flooring surfaces in the path of travel and accessible route be hard, stable, and regular. The surface is not — the surface is not regular in that location in relation to the rest of the floor transition.... Secondly, at the part where it is regular where it is believed that she has fallen, there is an increased depth where a wheel from a wheelchair, a cane, or someone’s foot would hit, causing a misstep, a jolting of a chair.

Tumlin did not measure the irregular depth (the “bump”) at the placement of the transition strip. He stated that the transition strip and floor tile would have complied with the ADA Code had the non-tiled surface been regular all the way across. Yet, he identified an irregular place in that surface. According to him, the concrete slab was “poured with a depression pattern in it. A visual, a — something that somebody thought looked good.” He believed that it “represents an impediment to people who require — because of disability an ADA accessible route.” While Tumlin testified that a wheelchair would have jolted at this location, he could not say whether it would tip and cause the occupant to fall. At one point, he estimated the irregular dip in the non-tiled surface as “less than a quarter” inch. However, he also indicated at another point in his testimony that the overall rise between the two surfaces may have been one-half inch or more. Without an accurate measurement, his testimony is not clear.

^Without being provided a definition of unreasonably dangerous, Tumlin refused to testify to more than that the condition presents a hazard to the “public that requires accessible access” by violating Article 4.5 and Section 303.3 of the ADA. Lastly, Tumlin testified that he considered the condition a design implementation problem rather than a construction problem.

In granting the defendant’s motion for summary judgment, the trial court placed emphasis on the number of people who had traversed the transition strip since 2002. In the ten years since the walkway was constructed, the plaintiffs could not point to a single accident despite the multiple people, presumably some with wheelchairs, walkers, and crutches, who had encountered this defect. The plaintiffs now appeal the trial court’s dismissal of their claims.

Discussion

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C. art. 966 A(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, 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. art. 966 B(2). 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 |sfor 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. art. 966 C(2).

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791. A fact is material it if potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy, supra at 794.

The Louisiana Merchant Liability Statute, La. R.S. 9:2800.6, provides that:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an |fiinjury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of this cause of action, all of the following:
1. The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
2. The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence
3.The merchant failed to exercise reasonable care. In determining care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone to prove failure to exercise reasonable care.

Failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to the plaintiffs case. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir. 8/14/02), 823 So.2d 1124; Richardson v. Louisiana-1 Gaming, 10-262 (La.App.5th Cir.12/14/10), 55 So.3d 893.

The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091, 1095. In determining whether a defect presents an unreasonable risk of harm, courts have adopted a four-part test. This test requires consideration of:

1) the utility of the complained-of condition;
2) the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition;
3) the cost of preventing the harm; and
4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature.

Dowdy, supra at 795. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362; Entrevia v. Hood, 427 So.2d 1146 (La.1986); Dowdy, supra.

There is one photo in the record which shows the slight rise or bump in the floor and the transition strip where the accident occurred. The same photo also shows Scherer lying on the stretcher on the floor. There is no close-up photo showing the actual difference in the height between the two levels of the floor. Tumlin indicates that the bump occurs because of the use of large tile on one side of the line and the apparent absence of tile on the other side. The photo shows the so-called transition strip which is a visible white strip on the brown colored flooring. The transition strip is placed at the right angle between the two levels of the floor in an effort to make that angle less abrupt and to act as a mini-ramp between the two levels. Nevertheless, this is a description based largely on what the photo shows from a distance. The plaintiffs’ opposition evidence, including Tumlin’s deposition, never provides an accurate measure of this bump or reveals the angle of the transition strip which was the device used to smooth out the bump. Tumlin merely estimated the height of the bump at approximately one-half inch, and the picture does not indicate a greater height.

Dowdy, supra, concerned a trip and fall accident on an asphalt roadway in a parking lot of a public building. Summary judgment had been granted by the trial court in favor of the defendant. The facts of the accident, including the photograph of the surface irregularity, and the commonality of such hole in the asphalt showed that the alleged trip | ^obstacle was undisputedly established in the evidence produced by the motion for summary judgment. This court therefore decided the issue of whether an unreasonable risk of harm was present stating that “[t]he court is charged legislatively by this favored [summary judgment] procedure to determine the legal significance of the undisputed facts.” Id. at 797-798.

In this case, we find the facts concerning the place of plaintiffs’ fall, the configuration of the transition strip and the bump in the flooring to be well presented by the evidence. The plaintiffs would bear the burden of proving that the bump in the surface presented an unreasonable risk of harm. They and their expert did not demonstrate that the rise between the two surfaces was greater than one-half inch.

Applying the risk/utility balancing test, the complained-of condition exists because of the transition between the two portions of the casino facilities, the casino itself and the hotel lobby. The walkway had a slope leading up to the transition point between the two internal structures within the complex. Importantly, plaintiffs’ expert did not consider this bump as a defective construction of the building. We would therefore view this transition in the flooring as a feature with ordinary utility within a complex indoor structure.

The next and more significant measure in this case is the likelihood and magnitude of the harm, which includes the bump’s obviousness for the casino’s patrons. As a transition point from the walkway into the lobby, the slight rise between the surfaces might reasonably be expected and seen. The height of the bump is not unlike an unevenness in flooring created by |flthe sill at the threshold of a door. The slope of the metal transition strip was to smooth out to some extent the change in the two levels of the flooring. From the photo of the transition strip, its white line across the flooring is clearly distinct in relation to the two types of flooring that meet on either side. Finally, the defense established that no trip and fall accidents had occurred at this location. All of this indicates a small likelihood for trip and fall accidents and injury at this obvious transition point in the building.

Finally, it is significant that, using her walker as a walker, Scherer had not experienced any prior problems traversing this place in the building. The photos of the walker in the record circumstantially indicate that its relatively small wheels (approximately 5 inches in diameter or less) were not designed for transporting a person. Yet, plaintiffs presented no opposition evidence showing that they were using the walker in its intended manner of use. This leads to the conclusion, in answer to the fourth measure of the risk/utility test, that the nature of the plaintiffs’ activities at the time of the accident was out of the ordinary, posing the dangers caused by the limited field of vision of Constantino and the small wheels of the walker.

Regarding the additional point raised by plaintiffs’ expert concerning the ADA, their brief to this court has not backed up that opinion by citation and legal argument concerning that federal law. Thus, we do not have an assertion in brief regarding the measure of a violation under the ADA. Factually, from the record, it is not shown that all access routes generally into the hotel facilities at Boomtown were in violation of the ADA. Last, as |10noted above, the questionable mode of transport of Scherer as a disabled person was not addressed by Tumlin as he avoided any discussion of the use of this walker as a type of makeshift wheelchair.

From this review, we find that the “bump,” the transition in the levels of the floor upon entering into the hotel lobby, did not present an unreasonable risk of harm.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of these proceedings are assessed to appellants.

AFFIRMED.

      . We note that the utility/risk test is applicable to the measure for fault under La. C.C. art. 2317.1 which coincides with the merchant liability statute for the alleged trip hazard in this case created by the building's construction.


author: KEATY, Judge.

text:
    STATE, OFFICE OF RISK MANAGEMENT, LOUISIANA DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Patrick RICHARD.
    No. 12-1247.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Defendant/Appellant, Patrick Richard.
    Sylvia M. Fordice, Louisiana Department of Justice, Division of Risk Litigation, Assistant Attorney General, Lafayette, LA, for Plaintiff/Appellee, State, Office of Risk Management, Louisiana Department of Transportation & Development.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| j Employee appeals from a judgment rendered by the workers’ compensation’s judge (WCJ) denying his exception of prescription and finding that his employer is entitled to a $224.05 per week offset/credit against his workers’ compensation benefits until he converts to regular retirement benefits, retroactive to April 21, 2007, and until his employer recoups its overpayment. Employee further appeals from a judgment denying his motion for new trial. For the following reasons, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL BACKGROUND

Defendant, Patrick Richard (Richard), was an employee of the State of Louisiana, through the Department of Transportation and Development (DOTD). On September 20, 2005, he was injured in the course and scope of his employment with DOTD. After Richard’s injury, he was paid temporary total disability workers’ compensation benefits by Plaintiff, State of Louisiana, the Office of the Governor, Division of Administration, Office of Risk Management (State); however, he turned over his workers’ compensation benefits checks to the State and used his accrued vacation and sick leave in order to continue to receive his regular salary.

Richard retired on April 20, 2007, and began receiving disability retirement benefits from the Louisiana State Employees’ Retirement System (LASER’S). Upon his retirement, he began retaining his workers’ compensation benefits for the first time. More than three years later, on January 31, 2011, the State filed a 1008 Disputed Claim for Compensation (1008) and a Petition for Offset of Disability Retirement Benefits pursuant to La.R.S. 23:1225(C)(1), in which the State sought ^reimbursement for the workers’ compensation benefits Richard had retained after he began receiving disability retirement benefits. Richard responded to the State’s petition by filing an exception of prescription wherein he asserted that the State’s claim for reimbursement of benefits had prescribed. Both the hearing on the exception of prescription and the trial of the State’s petition for offset were set for hearing on March 5, 2012. Following the hearing, the WCJ took the matter under advisement and set a date for the parties to file post-trial memoranda. On March 28, 2012, the WCJ issued an oral ruling in the matter. The WCJ denied the exception of prescription and granted the State an offset in the amount of $224.05 per week until Richard converts to regular retirement benefits at sixty years of age. The State was granted an offset in the amount of $224.05 per week retroactive to April 21, 2007. The WCJ also ruled that Richard’s future indemnity benefits were suspended until all overpayments were recouped by the State. The WCJ signed a written judgment in the substance of the oral reasons on May 1, 2012. Richard filed a motion for new trial which the WCJ denied after a contradictory hearing.

Richard now appeals, contending that the WCJ erred: (1) in failing to grant his exception of prescription; (2) in granting the State an offset against his indemnity benefits; and (3) in failing to grant his motion for new trial.

DISCUSSION

I. Exception of Prescription

“In reviewing a peremptory exception of prescription, the standard of review requires an appellate court to determine whether the trial court’s finding of fact was manifestly erroneous.” Taranto v. La. Citizens Prop. Ins. Corp., 10-105, p. 5 (La.3/15/11), 62 So.3d 721, 726. Similarly, “[i]f evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review.” Menard v. Iberia Parish Sheriff’s Office, 11-707, p. 2 (La.App. 3 Cir. 12/7/11), 77 So.3d 1090, 1092, writ denied, 12-73 (La.3/9/12), 84 So.3d 553 (quoting Rando v. Anco Insulations, Inc., 08-1163 (La.5/22/09), 16 So.3d 1065).

Louisiana Revised Statutes 23:1225 (hereafter sometimes referred to as “the offset statute”) provides, in pertinent part, as follows:

C. (1) If an employee receives remuneration from:
(d) Any other workers’ compensation benefits,
then compensation benefits under this Chapter shall be reduced, unless there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit, so that the aggregate remuneration from Subparagraphs (a) through (d) of this Paragraph shall not exceed sixty-six and two-thirds percent of his average weekly wage.
(3) If an employee is receiving both workers’ compensation benefits and disability benefits subject to a plan providing for reduction of disability benefits, the reduction of workers’ compensation benefits required by Paragraph (1) of this Subsection shall be made by taking into account the full amount of employer funded disability benefits, pursuant to plan provisions, before any reduction of disability benefits are made.

“It is well established in our jurisprudence that La.Rev.Stat. 23:1225(0(1) is a restriction on an injured employee’s right to workers’ compensation benefits and must be strictly construed.” Stanich, 26 So.3d at 273. “An employer seeking credit for benefits covered by the statute has the burden of proving both entitlement to and the amount of the credit.” Id. “In calculating an offset, the trier of fact must (1) determine the claimant’s average weekly wage and (2) determine the total remuneration from the workers’ compensation benefits and the other identified benefits as set forth in La.Rev.Stat. 23:1225(C)(1).” Id.

I/The offset statute does not provide a prescriptive period within which an employer must file a petition for offset. After reviewing the jurisprudence, we have found no cases addressing this issue. Thus, we are presented with what appears to be a res nova issue in Louisiana.

Both Richard and the State contend that La.R.S. 23:1209 supplies the prescription period applicable to this dispute. Louisiana Revised Statutes 23:1209(A)(2) provides:

Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).

Richard submits that La.R.S. 23:1209 deals specifically with claimants and does not directly address the prescription for causes of actions by the employers/insurers, i.e., the State. However, Richard argues the three-year time limit set forth in La.R.S. 23:1209 for indemnity benefits should be applicable to both the employee and employer. Richard contends that the State had constructive and actual knowledge of its cause of action in 2007, as evidenced by State’s Exhibit 1, which was accepted into evidence. Since the State did not assert its claim for an offset within three years of 2007, Richard contends the State’s claim prescribed.

The State contends that its claim seeking an offset against the disability retirement benefits paid to Richard was timely filed, contending as follows in its appellee brief to this court:

| sIt is reasonable to conclude that an injured worker is paid workers’ compensation benefits before deciding that his work related injury will lead to his retirement. Thus, the receipt of disability retirement benefits normally would commence only after workers’ compensation benefits have started. Once payments have commenced, the termination of benefits triggers the running of prescription. Since Richard’s benefits were being paid at the time the claim was filed, prescription would not have begun to run on any claims he would have filed.

Moreover, the State submits that if equal treatment were afforded to the employer, the prescriptive period for it to seek an offset would likewise not have begun to run.

The language of La.R.S. 23:1209 does not rely upon whether the employer has knowledge that it has a right to file a claim. Instead, the right to file a claim in this case relies upon when “the last payment,” if any, has been made and when the claim is actually filed. The record shows that at the time the State filed its claim on January 31, 2011, Richard had been receiving both workers’ compensation indemnity and retirement disability payments since April 1, 2007. There was no discontinuation of either of those benefits at the time the State filed its claim. Since “the last payment” had not been made as of January 31, 2011, the State’s claim to offset the indemnity benefits against the disability retirement benefits had not prescribed. The WCJ’s finding was not manifestly erroneous in this regard.

II. Offset

Richard submits that although the offset statute allows an employer to reduce workers’ compensation benefits if the employer is also providing disability benefits according to a plan, in the proportion paid by the employer, no reduction is allowed when “there is an agreement to the contrary between the employee and the employer liable for payment of the workers’ compensation benefit.” See La.R.S. 23:1225(C)(l)(d). Richard contends that around the time that he retired inJ^April of 2007, he was told by Lynn Dodge (Dodge), a State employee that his receipt of disability retirement benefits would not have an effect on his workers’ compensation benefits. More specifically, Richard testified that he asked Dodge, “Will this workman’s comp affect my retirement?” and she answered, “Nope. That’s two different departments.” Arguing that the assurance made to him by Dodge amounted to “an agreement to the contrary” between him and the State, Richard contends that the State is precluded from enforcing any reduction against him in accordance with the offset statute. Richard submits that he had “good reason to believe that Ms. Dodge was acting within the scope of her authority,” and that, as an unrepresented employee, he could not be expected to the know the intricacies of the Louisiana Workers’ Compensation Laws or that the State might be entitled to claim it was due an offset. Richard further contends that the State’s act of paying him workers’ compensation benefits for more than three years after he retired was a form of acknowledgment that it owed him the benefits paid and is wholly inconsistent with the State’s recently asserted claim that it is due a credit retroactive to when he retired.

In opposition, the State attempts to minimize the effect of Richard’s conversation with Dodge, claiming that the extent of his contact with Dodge was his signing of papers. The State points out that Richard is unsure of Dodge’s position or authority and that he failed to prove that there was a duty on the part of Dodge to advise Richard on the law as it relates to intricacies arising out of the juxtaposition of disability retirement and workers’ compensation law. Thus, the State alleges Richard failed to prove by a preponderance of .evidence that an [ 7agreement existed between the parties that no reduction in indemnity benefits would be made by the State.

Neither Richard nor the State submits any jurisprudence in support of their arguments regarding this issue. Nevertheless, we find the following case helpful to our analysis. In Fontenot v. Houston General Insurance Co., 467 So.2d 77, 80 (La.App. 3 Cir.1985), this court held that the defendants were “estopped to plead prescription with regard to plaintiffs claim for medical benefits” where the plaintiff, a State employee, was “lulled into complacency by the representations made by the State’s representative.” In Fontenot, the evidence showed that a State safety inspector “had assured the plaintiff that all he needed to do to maintain his right to receive medical payments was to go to his doctor at least once a year” and that the plaintiff “relied on this representation.” Id. The evidence further showed that the State failed to notify the plaintiff of a change in its billing procedures. We held that “[g]iven that plaintiff was already relying on representations made by a representative of the State,” the State’s failure to notify the plaintiff of the change “was a serious act of omission.” Id.

According to his appellant brief, Richard was not represented by counsel at the time he retired; he hired an attorney only after the State filed its petition for offset. While the State downplays the significance of Richard’s conversation with Dodge, it does not dispute that the conversation took place, that Dodge was its employee, or that Richard only signed papers with Dodge when he retired, and that Richard did not speak with anyone from LASERS about his retirement. Considering the assurances that Richard received from Dodge, along with the State’s continuing to pay him both workers’ compensation benefits and disability retirement benefits for over three years, while acknowledging that it might be entitled to an offset, we conclude that the State is estopped from claiming that it is | sowed an offset under La.R.S. 23:1225. Thus, the WCJ committed manifest error in finding that the State was entitled to an offset.

III. Motion for New Trial

Our finding that the WCJ erred in granting the State an offset against the workers’ compensation benefits it was paying Richard renders moot Richard’s claim that the WCJ erred in failing to grant his motion for new trial.

DECREE

For the foregoing reasons, the portion of the WCJ’s judgment ordering that the State of Louisiana, the Office of the Governor, Division of Administration, Office of Risk Management, is entitled to an offset against Patrick Richard’s workers’ compensation benefits is reversed as the State is estopped from asserting that it overpaid Patrick Richard. In all other respects, the judgment is affirmed. In accordance with La.R.S. 13:5112, costs of this appeal in the amount of $445.00 are assessed against the State of Louisiana, the Office of the Governor, Division of Administration, Office of Risk Management.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . This statute “provides for an offset of workers' compensation benefits when other specified benefits are also being received by the employee.” Stanich v. Canal Entm't, 09-707, p. 4 (La.App. 4 Cir. 11/12/09), 26 So.3d 269, 272.

      . Exhibit 1 is correspondence dated August 3, 2007, from a State Risk Claims Adjuster Tara Shelton to LASER’S noting that the State was paying workers’ compensation benefits to Richard, that it had been advised that Richard was receiving a disability retirement, and that the State "may be entitled to an offset.”

      . At trial, Richard testified that Dodge was the DOTD employee "that takes care of insurance and retirement.”


author: ROSEMARY LEDET, Judge.

text:
    SOUTHERN YACHT CLUB v. Reginald ZENO, et al.
    No. 2012-CA-1309.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.
    Kevin R. Tully, H. Carter Marshall, W. Nicholas Dietzen, IV, Christovieh & Kear-ney, L.L.P., New Orleans, LA, for Plaintiff/Appellee.
    Paul J. Mirabile, Marianne Garvey, Mid-dleberg Riddle & Gianna, Suzanne Haik Terrell, Suzanne Haik Terrell APLC, Joyce G. Joseph, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

Lin this ad valorem tax dispute, the Southern Yacht Club (“SYC”), plaintiff/ap-pellee, filed a Motion to Enforce Final Judgment to recover the 2012 taxes it paid under protest. The district court granted the SYC’s Motion to Enforce Final Judgment. Defendants, Erroll Williams, Assessor for the Parish of Orleans; and Norman Foster, Director of Finance and Ex-Officio Tax Collector (“Collector”) for the City of New Orleans (“the City”), appealed. After reviewing the record and the applicable law, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In the latter part of 2003, the SYC received notice of ad valorem taxes allegedly due for the 2004 tax year on property it owned in Orleans Parish. The SYC paid the 2004 ad valorem taxes under protest and indicated its intent to file suit. On January 26, 2004, the SYC filed a Suit to Recover Taxes Paid Under Protest against Reginald Zeno, in his then capacity as Director of Finance and Collector for the City; Henry Heaton, in his then capacity as Assessor for the Seventh Municipal District of the Parish of Orleans; and Russel Gaspard, in his then capacity as Chairman of the Louisiana Tax Commission. The SYC contended that it was a non-profit, tax-exempt corporation operating exclusively for fraternal |2purposes and that its properties are exempt from ad valorem taxation pursuant to La. Const, art. VII, § 21(B)(l)(a)(i), which provides that:

Property owned by a nonprofit corporation or association organized and operated exclusively for religious, dedicated places of burial, charitable, health, welfare, fraternal, or educational purposes, no part of the net earnings of which inure to the benefit of any private shareholder or member thereof and which is declared to be exempt from federal or state income tax ...

The SYC further requested that the district court order Mr. Zeno to refund the taxes it paid under protest.

On November 12, 2004, the district court granted a Motion for Summary Judgment filed by the SYC. In its judgment, the district court declared the SYC exempt from ad-valorem taxation under La. Const, art. VII, § 21(B)(1)(a); ordered Mr. Hea-ton to adjust his assessment rolls to reflect the SYC as exempt from ad valorem taxation; and ordered Mr. Zeno to refund the 2004 taxes paid by the SYC under protest.

For the next seven years, the SYC did not receive tax assessments on the subject property. In the latter part of 2011, the SYC received a tax bill reflecting the 2012 tax assessment on the subject property. The SYC paid the 2012 taxes under protest. On February 28, 2012, the SYC filed a Motion to Enforce Final Judgment under the same case number as the 2004 Suit to Recover Taxes Paid Under Protest.

In its motion, the SYC asserted that the defendants ignored the district court’s November 12, 2004 judgment by including on the accessible tax rolls the property owned by the SYC and issuing a 2012 tax bill to the SYC. The SYC also noted that its counsel met with Mickey Markey, Deputy Assessor for the City, to discuss the SYC’s tax exempt status. The SYC attached as an exhibit to the | amotion an email sent on April 1, 2011, following the meeting, by SYC’s counsel to Mr. Markey. The email confirmed that the SYC was exempt from ad-valorem taxes and that the SYC did not have to file the business personal property tax reporting form. Mr. Markey sent a responding email stating that the “SYC has enjoyed tax exempt status for years.” However, on July 24, 2011, Mr. Williams sent the SYC a letter stating that the Assessor’s office was in the process of updating its exempt property records and did not have on file the necessary information to support the SYC’s exemption from ad valorem taxes. The letter requested that the SYC provide the Assessor’s office with a completed Application for Exemption pursuant to La. R.S. 38:2828, the SYC’s IRS 501(c)(3) Non Profit Determination Letter, the SYC’s Articles of Incorporation, and the SYC’s Certificate of Good Standing. The Assessor’s office never received the requested documents; therefore, the Assessor’s office listed the SYC’s property on the 2012 tax rolls and sent the SYC a 2012 tax bill for the subject pi’operty.

Following a May 23, 2012 hearing, the district court rendered judgment on the Motion to Enforce Final Judgment in the SYC’s favor. The district court’s judgment found that the SYC was exempt from ad valorem tax under La. Const, art. VII, § 21(B)(l)(a)(i) for the 2012 tax year only; and ordered that the 2012 taxes paid under protest to be refunded to the SYC. The district court judge stated in her reasons for judgment that the SYC had been led to believe that they did not need to do anything further to show that it was exempt for the 2012 tax year. Specifically, the district court’s reasons for judgment stated:

[T]he Assessor and his personnel lulled Southern Yacht Club into a sense of security to indicate that Southern Yacht Club need do nothing further to show that it was non-exempt for tax year 2012. It would be patently unfair to require Southern Yacht Club to pay 2012 taxes under these circumstances. However, the Assessor has every right, Land indeed an obligation, to inquire into the status of Southern Yacht Club for tax year 2013 forward.

This appeal by Mr. Williams and Mr. Foster followed. The appellants’ assignments of error can be grouped into the following three categories: 1) the district court wrongfully recognized the SYC’s Motion to Enforce Final Judgment as the proper procedure for the protest of ad valorem taxes; 2) the district court wrongfully enforced its 2004 judgment as to the SYC’s 2012 ad valorem tax exempt status; and 3) the district court wrongfully ordered a refund of the 2012 taxes paid under protest by the SYC when the SYC failed to prove that it met the constitutional requirements for exemption to payment of 2012 ad valorem taxes.

DISCUSSION

The issues in this case require us to interpret statutes pertaining to ad valo-rem taxation. The proper interpretation of a statute is a question of law and thus, is reviewed by this court under a de novo standard of review. Williams v. Parish of St. Bernard, 10-0397, p. 3 (La.App. 4 Cir. 10/13/10), 49 So.3d 520, 523.

We will first address the appellants’ assertion that the district court erred in recognizing the SYC’s Motion to Enforce Final Judgment as the proper procedure for protest of ad valorem taxes.

This court recently analyzed the review procedure for the appeal of tax assessments in Bass Partnership v. Gravolet, 12-0024, pp. 16-20 (La.App. 4 Cir. 11/21/12), 105 So.3d 224-35. Louisiana constitutional and statutory law formulates a two-track procedure that a property owner must follow in challenging property tax assessments. Id., 12-0024 at 16, 105 So.3d at 233-34. Under Louisiana jurisprudence, challenges to ad valorem property tax assessments are ^categorized as either correctness challenges or legality challenges. Id. (citing ANR Pipeline Co. v. Louisiana Tax Comm’n, 02-1479, p. 5 (La.7/2/03), 851 So.2d 1145, 1148-49.)

This court in the Bass case notes that:

[T]he Supreme Court reasoned that correctness challenges are directed at issues of regularity or correctness of the assessment, such as overvaluation and misdescription, while legality challenges are directed at issues involving claims that the assessment is void for radical defects that bring into question the existence of any valid assessment.

Id., 12-0024 at p. 17, 105 So.3d at 234 (citing Morgan’s Louisiana & T.R. & S.S. Co. v. Pecot, 50 La.Ann 737, 742-43, 23 So. 948, 950-51 (La.1898)). Thus, a challenge to the validity of a tax on exempt property, such as that in the instant case, is not a correctness challenge but a legality challenge. Id., 12-0024 at p. 18, 105 So.3d at 235.

The appropriate method for challenging a tax levied on exempt property, a legality challenge, is to institute suit directly in the district court. Triangle Marine, Inc. v. Savoie, 95-2873, p. 6 (La.10/15/96), 681 So.2d 937, 941. The procedure required when filing suit to recover taxes paid under protest is detailed in La. R.S. 47:2134, which provides:

A person resisting the payment of an amount of ad valorem tax due or the enforcement of a provision of the ad valorem tax law and thereby intending to maintain a legality challenge shall timely pay the disputed amount due under protest to the officer or officers designated by law for the collection of the tax and shall give such officer or officers, notice at the time of payment of his intention to file suit for the recovery of the protested tax.
A legality challenge suit must be filed within thirty days from the date of the protested payment.

| fi(Emphasis supplied) La. R.S. 47:2134(0(1) and (2).

In this case, the SYC, pursuant to La. R.S. 47:2134, paid the disputed 2012 ad valorem tax assessment. In accordance with the statute, the SYC enclosed a letter with its protested payment that noticed its intention to either “protest to the Louisiana Tax Commission or to file suit in the appropriate court for the recovery of this tax within thirty (30) days of the payment.” However, the SYC took neither of those actions. Instead, the SYC filed a Motion to Enforce Final Judgment, seeking the district court to enforce its 2004 judgment as to the SYC’s tax status in 2012. Nothing in La. R.S. 47:2134 or Louisiana jurisprudence authorizes a motion to enforce a previous judgment of the district court to recover taxes paid under protest. Based on the foregoing reasons, the SYC has failed to avail itself of the proper procedure to recover taxes paid under protest.

The appellants also assert that the district court -wrongfully enforced its 2004 judgment as to the SYC’s 2012 ad valorem tax exempt status. The district court’s 2004 judgment, in reference to the SYC’s tax exempt status, states that “plaintiffs Motion for Summary Judgment is hereby GRANTED and Southern Yacht Club is hereby declared exempt from ad valorem taxation under Article VII, § 21(B)(1)(a) of the Louisiana Constitution.” The SYC notes that the 2004 judgment was never appealed and is final and definitive as to its determination that the SYC is exempt from the payment of ad valorem taxes pursuant to La. Const, art. VII, § 21(B)(l)(a)(i); thus, arguing that the 2004 judgment is not limited to the 2004 tax year. We disagree.

Although the district court’s 2004 judgment does not include an express time frame as to the SYC’s pertinent exemption, to interpret it to apply to years other 17than 2004, the year at issue in that case, would be contrary to the Louisiana ad valorem tax scheme.

A similar issue was addressed by the Second Circuit in Madison Community Apartments, Inc. v. Madison Parish Police Jury, 444 So.2d 1352 (La.App. 2d Cir. 1984). The plaintiffs in the Madison case were nonprofit corporations that alleged they were entitled to a constitutional charitable exemption from tax assessments. The plaintiffs brought a tax refund suit seeking a judgment ordering their property removed from the tax rolls, which the court determined would be in the nature of a declaratory judgment to the effect that they were perpetually exempt from payment of ad valorem taxes. Id. at 1357.

The court in the Madison case held that:

Such a judgment would be contrary to the scheme of our ad valorem tax assessment procedures. This law provides that the assessment shall be made on the basis of conditions existing as of January each year. R.S. 47:1952. The law requires each assessor to compile a list of the property subject to taxes by July 1 of each year.... The remedy of paying the opposed tax under protest and suing for the refund provided in 47:2110 is consistent with the annual assessment procedure. A declaratory judgment perpetually exempting the property of these plaintiffs would necessarily be contrary to the intent of these assessment statutes and would deprive the assessor, the board of review and the Louisiana Tax Commission of their function of making an annual determination of the tax liability of the plaintiffs property based upon its use on January 1 of each year.

Id. The court in the Madison case also noted that under the Louisiana statutes governing suits to recover taxes paid under protest:

[Tjhere is no provision for a taxpayer asserting a cause of action on the invalidity of one year’s assessment to pay taxes on the following year’s assessment under protest and obtain thereby a cause of action for a refund in the initial suit for the taxes paid on an assessment made a year later.

Id. We agree.

|SA district court’s determination of the invalidity of one year’s tax assessment does not affect the invalidity of the following year’s tax assessment. By statute La. R.S. 47:2134, the courts of this State are prohibited from enjoining the collection of taxes or the enforcement of any provision of the tax law. Giraud v. Louisiana Tax Comm’n, 336 So.2d 1037, 1038 (La.App. 4th Cir.1976). In addition, La. R.S. 47:2134 provides a legal remedy for any complaining taxpayer, which does not include the enforcement of a previous judgment rendered in the district court. Id. Thus, the district court’s 2004 judgment does not confer any vested rights to tax exemption to the SYC for any years other than 2004; it pertains only to the SYC’s tax exempt status presented to the court at that time.

The appellants also argue that the district court wrongfully ordered a refund of the 2012 taxes paid under protest by the SYC when the SYC failed to prove that it met the constitutional requirements for exemption of 2012 ad valorem taxes.

In Orleans Parish, La. R.S. 47:1703 states that the status of real and personal property on the first day of August of each year will determine its qualifications for exemption from taxation for the following calendar year. A property exemption from ad valorem taxation pursuant to La. Const, art. VII, § 21(B), such as that requested in the instant case, must be applied for annually by completing an application form provided by the Assessor and certifying that the property qualifies for the exemption sought. La. R.S. 33:2828; see also Side by Side Redevelopment, Inc. v. Marshall, 09-1430, p. 5 (La.App. 4 Cir. 6/30/10), 43 So.3d 1059, 1063 (Bonin, J., concurring).

The SYC admits that it did not provide the Assessor’s office with the annual application certifying that the property qualifies for the pertinent tax exemption as required by La. R.S. 33:2828. The SYC explains it failed to do so for two reasons.

First, the SYC argues that La. R.S. 33:2828 did not become effective until June 30, 2005. Before that date, the SYC notes that there was no requirement for any property owner within the City of New Orleans to apply annually for an exemption to ad valorem taxes. The SYC argues that La. R.S. 33:2828 cannot be applied retroactively to disturb the vested rights it claims the 2004 judgment granted. As discussed earlier, the district court’s 2004 judgment did not confer any vested rights to tax exemption to the SYC for any years other than 2004. The 2004 judgment only pertains to the SYC’s tax exempt status presented to the court at that time. Accordingly, La. R.S. 33:2828 applies to the SYC’s 2012 ad valorem tax exempt status.

Second, the SYC argues that the district court’s 2004 judgment sustains its burden of proof establishing exemption as provided by La. Const, art. VII, § 21(B)(l)(a)(i). The SYC shifts the burden to the appellants, asserting that they did not inquire into its tax exempt status or allege that any of the SYC’s functions have changed since the 2004 judgment.

The Louisiana Supreme Court provides that for an organization to be eligible for a property tax exemption pursuant to La. Const, art. VII, § 21(B)(1)(a)© that organization must be:

(1) a nonprofit corporation or association; (2) organized and operated exclusively for religious, burial, charitable, health, welfare, fraternal, or educational purposes; (3) with no net earnings inuring to the benefit | inof any private shareholder or member; and (4) exempt from federal or state income tax.

Sherwood Forest Country Club v. Litchfield, 08-0194, pp. 5-6 (La.12/19/08), 998 So.2d 56, 61.

Louisiana jurisprudence has consistently held that constitutional and statutory grants of exemption from taxation must be strictly construed in favor of the taxing body and against the taxpayer desiring the exemption. Metairie Country Club v. Louisiana Tax Com’n, 03-0538, p. 5 (La.App. 5 Cir. 10/28/03), 860 So.2d 165, 167-68. An exemption, being an exceptional privilege, must be clearly, unequivocally, and affirmatively established by the taxpayer. Id., 03-0538 at p. 5, 860 So.2d at 168. The taxpayer’s stringent burden is to overcome the judicial fundamental principle that “to doubt is to deny the exemption.” Sherwood, 08-0194 at p. 6, 998 So.2d at 61 (quoting Citifinancial Retail Services Division of Citicorp Trust Bank, FSB v. Weiss, 372 Ark. 128, 271 S.W.3d 494 (2008)).

In this case, the burden of establishing the pertinent tax exemption is on the SYC, the tax payer, rather than the appellants, the taxing body. A review of the record shows that the SYC put on no evidence to establish that it was entitled to exemption to payment of ad valorem taxes for the 2012 tax year. SYC relied solely on the district court’s 2004 judgment and the email sent by SYC’s counsel to Mr. Mar-key stating that the “SYC has enjoyed tax exempt status for years.”

As stated, the district court’s 2004 judgment does not have an effect on the SYC’s 2012 tax exemption status; thus, the SYC’s reliance on that judgment to sustain its burden of proof to establish an exemption as provided by La. Const, art. VII, § 21(B)(1)(a)(1) for the 2012 tax year is misplaced.

InFurther, the email stating that the “SYC has enjoyed tax exempt status for years” does not affirmatively establish tax exemption for the SYC for the 2012 tax year. We find that the email submitted by the SYC was contradicted by the letter subsequently sent to them by the Assessor. The Assessor’s letter detailed the requirements provided by La. Const. art. VII, § 21(B) for non-profit tax exemption; the documents that were required to be provided to support the exemption; and the consequence of failing to provide the documents in the specified time frame. The Assessor’s office did, in fact, inquire into the SYC’s tax exempt status. When the requested documents were not received, the Assessor’s office issued a tax bill noticing the SYC of its 2012 tax assessment. Based on the foregoing, the SYC could not have been lulled into believing that it did not have to do anything to establish exemption from payment of ad valorem taxes for the 2012 tax year. Thus, we find that the trial court erred by holding the SYC exempt from ad valorem taxes for the 2012 tax year when no evidence was presented that it qualified for the exemption for that year.

DECREE

For the foregoing reasons, the district court’s judgment is reversed.

REVERSED

      . The Louisiana Tax Commission, although apprised of this action, opted not to participate in it.

      . La. R.S. 47:2134 reproduces the substance of former La. R.S. 47:2110 (repealed by La. Acts 2008, no. 819 § 2, effective January 1, 2009).

      . La. R.S. 47:2134(D), as it pertains to the instant case, provides that:
      The right to sue for recovery of a tax paid under protest as provided in this Section shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of all questions arising in connection with a correctness challenge or the enforcement of the rights respecting the legality of any tax accrued or accruing or the method of enforcement thereof.

      . The appellants objected to the introduction of the email into evidence. They assert that additional evidence cannot be considered after the rendition of a final judgment unless a motion for JNOV or a motion for new trial has been granted. Denton v. State Farm Mut. Auto. Ins. Co., 08-0483, pp. 9-10 (La.12/12/08), 998 So.2d 48, 54. Because we find in favor of the appellants on the merits, we find it unnecessary to address this eviden-tiary issue.