Bunge North America, Inc. VS The Board of Commerce & Industry and Louisiana Department of Economic Development (2007CA1746 Consolidated With 2007CA1747)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 1746 BUNGE NORTH AMERICA INC VERSUS Y INDUSTRY AND THE BOARD OF COMMERCE LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT CONSOLIDATED WITH NUMBER 2007 CA 1747 CLYDE A ROCK GISCLAIR ASSESSOR FOR ST CHARLES PARISH AND CLYDE A ROCK GISCLAIR INDIVIDUALLY VERSUS THE BOARD OF COMMERCE AND INDUSTRY LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT LOUISIANA TAX COMMISSION AND BUNGE NORTH AMERICA INC AND NUMBER 2007 CW 1705 BUNGE NORTH AMERICA INC VERSUS THE BOARD OF COMMERCE INDUSTRY AND LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT CONSOLIDATED WITH CLYDE A ROCK GISCLAIR ASSESSOR FOR ST CHARLES PARISH AND CLYDE A ROCK GISCLAIR INDIVIDUALLY VERSUS THE BOARD OF COMMERCE AND INDUSTRY LOUISIANA DEPARTMENT OF ECONOMIC DEVELOPMENT LOUISIANA TAX COMMISSION AND BUNGE NORTH AMERICA INC Judgment Rendered May Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Trial Court Number 509 022 Honorable Timothy E Rouge Louisiana c w 510 652 Kelley Judge 2 2008 Attorneys for Appellant Bunge North America Inc Robert L Rieger Jr Richard B Easterling L Greaud Stacey William D Shea David K Baton McCrory Rouge LA William W Edelman Metairie LA Attorneys for Appellee Clyde A Rock Gisclair St Charles Parish Assessor and Victor E Bradley Jr Norco LA Attorney for Appellee Daryl K Manning Baton Rouge LA La Board of Commerce and Department of Economic Development Industry Attorneys for Appellee Kenneth F Sills Baton Intervenor St Charles Parish Rouge LA School Board and Robert L and La Raymond Destrehan LA Robert D Hoffman Jr Attorneys for Appellee Mandeville LA La Tax Commission and Don Anthony Almerico St Rose LA BEFORE CARTER C J PETTIGREW AND WELCH JJ 2 WELCH J This granted involves the through Gisclair Gisclair and individually appeals suit s dispute application a filed and appealed an Bunge tax Department Clyde A Rock Gisclair duly elected Assessor for the Parish of St in favor of judgment granted the industrial was exemption the State of Louisiana by tax exemption contract by Gisclair seeking review of the trial also referred to this court Bunge dismissing A s writ supervisory denial of his cross panel Additionally Bunge interlocutory judgment overruling its peremptory and declinatory For the exceptions the as summary nullify to industrial ad valorem Board Industry motion for summary judgment has over an Department of Economic Development of Commerce Charles a Bunge North America Inc to State Board case reasons that follow affirm the we judgment overruling the peremptory and declinatory exceptions affirm the summary judgment dismissing Gisclair suit and s I As an s supervisory writ application FACTUAL AND PROCEDURAL HISTORY inducement for manufacturers build additions 21 F deny Gisclair to to build existing manufacturing plants new manufacturing plants in Louisiana Article VII to Section of the Louisiana Constitution authorizes the State and the Board with the of the governor approval to exempt new manufacturing additions to terms the Board deems in the best interest of the State as evidenced by a written contract that is establishment as or addition or suitable for use or which gives new art additions establishment which engages in the business of VII to working shapes qualities 3 addition and used in La Const an The on or such exemption is signed by the governor the Board and the Manufacturing establishment manufacturing established or establishments existing manufacturing establishments from ad valorem taxes manufacturer plant or 2I F any raw or to an existing means a new existing plant materials into combinations or wares to matter which already has gone through some artificial process La Const Art VII 21 F Bunge is supplier of agricultural commodities together with value added a specialized food food products and feed ingredients processing facility and Destrehan a Bunge operates grain export elevator in Destrehan Louisiana The establishment soybean processing facility manufacturing however the grain export elevator does Bunge sent application an in connection with its unloader CBU According to existing plant Bunge 1 s to the Board for s equipment Section 21 was 21 F provides in Section 20 of this Article the following property as an barge addition as was critical to its no to its follows for in exemption provided and exemption soybeans and other grains pertinent part In addition to the homestead tax Destrehan establishment constructed unload to s s in engages continuous a new claimed that the CBU application specifically art Cons VII ability s Bunge Bunge In March 2002 not industrial ad valorem at the CBU application expand Bunge The text ofLa an plans for the construction of and related Bunge to soybean a other shall be exempt from ad valorem taxation Notwithstanding any contrary provision of this Section the State Board of Commerce and Industry or its successor with the approval of the governor may enter into contracts for the exemption from ad valorem taxes of a new manufacturing establishment or an addition to an existing manufacturing F establishment on such terms and conditions as the board with the approval of the governor deems in the best interest ofthe state The exemption shall be for an initial term of no more than five calendar years and may be renewed for an additional five years All property exempted shall be listed on the assessment rolls and submitted to the Louisiana Tax Commission period or its successor but no taxes shall be collected thereon during the of exemption The terms manufacturing establishment and addition as used herein addition mean a new plant or establishment an or additions to any existing plant or establishment which engages in the business of working raw materials into wares suitable for use or which gives new shapes qualities or combinations or to matter which already has gone through 2 some artificial process Bunge s grain elevator unloads grain from river barges After the grain is unloaded deposited into the grain elevator it is weighed cleaned dried and sometimes blended grain is then loaded onto ships for export to foreign destinations 4 and The and did soybean processing operation The Board shipping capacity that it was considering Bunge sent notice entered into the tax to approval contract exemption thereby exempting Bunge from contract grain elevator storage or Bunge Gisclair and other parties Following application s 24 2002 the Board and the State with the Foster Jr increase not an investigation of then Governor on Murphy number 2002 8008 with ad valorem taxes for May a 1 Bunge period of five years the Specifically contract WHEREAS in pertinent part provided as follows Bunge its manufacturing establishment in the State of Louisiana and the creation and operation of the said addition has been deemed by the Board to be of great benefit to the State and its inhabitants AND WHEREAS has Bunge demonstrated the to satisfaction of the Board that the said eligible to S 21 be considered for tax manufacturing establishment is exemption under La Const art VII F AND WHEREAS all requirements of law on behalf of Bunge have been complied with and the Governor and the Board deem this therefore contract the to be in the best interest of the State parties hereto do mutually covenant now and agree as follows Bunge 29 528 455 00 has an constructed addition to approximate cost their manufacturing establishment Said establishment is located in St Charles Parish at an at 12442 Louisiana of River Road Destrehan and shall consist of building equipment and machinery comprising said establishment In accordance with the Commission LTC directed Gisclair other property exempted under the Charles Parish Thereafter pursuant Bunge s premises in contract and found that to remove contract to a August 2002 machinery equipment and from the assessment rolls for St request by Gisclair the Board inspected approximately 5 the the Louisiana Tax 24 9 of the CBU s operations were dedicated the CBU Bunge soybean processing operations and that the remainder of s operations involved unloading grains destined for Bunge s The Board then took the elevators contract to was subject to decrease or that only eligible for the exemption CBU would be equipment a that the position andor property exemption granted by of the estimated 24 9 because exempted under the grain s some of the contract were not cost the of the machinery engaged in manufacturing On June 23 seeking a 2003 Bunge filed suit against the Board and the Department declaratory judgment of its rights under the Board andor the Department contract s Bunge an answer of La suit 3 ability s On July art VII 21 F restrict alter or and modify 23 2003 the Board and the and reconventional demand Const to contract claiming because the that the contract the of the terms Department filed contract was grain elevator manufacturing and therefore requested that the challenging the was not in violation engaged in be declared invalid null and of no effect However order 403 prior change to the filing of Bunge order 403 s suit the LTC had issued which added the value of the equipment andor property exempt under the contract to Charles Parish in the result of issued a name Tax Notice to reflected thereon due filed its first of Bunge supplemental 6 the issuance of a 2003 and amended and its individual commissioners requested a in the amount of Bunge by August As Therefore the machinery assessment roll for St change order 403 Gisclair 451 413 04 with the taxes on August 5 2003 petition in which Bunge added in their official change capacities as Bunge the LTC defendants and temporary restraining order and preliminary injunction 3 Previously in 1998 Bunge and the Board with the approval ofthe governor had entered into tax exemption contract number 970554 for the exemption from ad valorem taxes on a soybean hull pelleting mill constructed by Bunge in St Charles Parish Louisiana at a cost of approximately 1 041 823 00 In its suit for declaratory judgment against the Board and the Department Bunge also sought declaratory relief with regard to tax exemption contract number 970554 however no issues have been raised on this appeal with regard to that contract 6 prohibiting the defendants from taking or from otherwise order 403 requested On and modifying altering on On or August 6 2003 the trial IS August on temporary restraining order rendered any action with Bunge August s all 2003 to restricting court regard the parties agreed maintain the tax arbitrarily 2003 Gisclair 12 in the exemption and contract that the trial improper the act contract to in his individually and capacity judgment from the 1 s when it contract it directed Gisclair assessment challenging Gisclair authority Bunge through the capriciously when court the extending until as was the duly petitions that the Board exceeded its constitutional tax order an quo status exemption granted in favor of Bunge valorem restraining order the to elected Assessor for the Parish of St Charles filed suit the through change contract granted 403 change order to suit as the of legality Gisclair alleged granted an industrial ad and that the LTC had acted to remove rolls for St Charles Parish declare that the issuance of the certain machinery Gisclair requested contract to Bunge was an of the Board in violation of the Louisiana Constitution and therefore was void and 2 direct the LTC machinery equipment to enable Gisclair and other property listed in the contract to on place Bunge the s assessment rolls for St Charles Parish On estimated August taxes 19 for 2003 taxation under the second As a and amended original suit requesting a result contract from the Bunge a notice of September petition adding assessment for 8 Gisclair 2003 as a Bunge filed a defendant in the preliminary injunction enjoining Gisclair from issuing declaring the action taken by Gisclair the on for property exempt under the injunction compelling to which included the value of property exempt from contract supplemental assessments Gisclair issued 2003 Gisclair to was remove assessment contract void and requesting judgment Additionally Bunge requested an all property exempt from taxation under rolls for St Charles Parish 7 a That same date Bunge sought and modifying from was granted a altering the or a and contract exempt from taxation under the granted temporary restraining order enjoining Gisclair contract notice and assessment of s enjoining him from taking and rescind the Bunge August Gregory Champagne in his capacity exception raising as s contract suit St Charles Parish duly elected Sheriff and the Sheriff filed petitions the suit and the interventions s objection of lack of subject Bunge filed matter jurisdiction dilatory vagueness prematurity and peremptory exceptions raising the objections of no action no right rendered and of action and mandating that Bunge a nullification of the pay ad valorem taxes was an CBU constituted part and grain elevator is a addition parcel manufacturing filed new exemption the trial to of the its court motion for a and an order Specifically Gisclair argued that in soybean plant grain elevator when in a the actuality the Gisclair further not to argued that manufacturing As such Gisclair contended that the CBU neither manufacturing establishment establishment of by Bunge contract transportation and storage facility and facility like the soybean plant a 2004 cause exemption Bunge made material misrepresentations tax Board that the CBU constitutes On June II parties conducted extensive discovery Gisclair filed judgment seeking applying for prescription signed a judgment overruling all exceptions After the summary of declinatory a exceptions raising the objections of improper cumulation of actions the 19 2003 essentially adopting all of the allegations made by Gisclair in his suit In response to Gisclair and was any action relative to the School Board Ex Officio Tax Collector of St Charles Parish intervention 2003 suit was transferred and consolidated with Bunge The St Charles Parish School Board the Parish to any property against Bunge for property exempt under the taxes Thereafter Gisclair to assess On October 16 Gisclair preliminary injunction ordering assessment attempting and therefore it 8 nor an was not addition subject to to tax an existing exemption under La Const summary S VII art 21 F In response Bunge filed judgment seeking the dismissal of Gisclair s a cross motion for claims and the claims of all intervenors The hearing on motions for summary judgment cross 7 May considered were 2007 at which time the trial court granted in favor of Bunge and denied the motion of Gisclair conformity with the trial court concurrently summary A written a judgment judgment in ruling dismissing the petitions of Gisclair the s School Board the Parish and the Sheriff was signed on judgment Gisclair has also filed supervisory a From this June 11 2007 judgment Gisclair has appealed seeking review ofthe grant of Bunge summary at writ motion for s application seeking review ofthe denial of his motion for summary judgment the merits of which have been referred this to panel Additionally Bunge has appealed the June 11 interlocutory judgment overruling its peremptory and declinatory exceptions II 2004 4 LAW AND DISCUSSION A Exceptions Raised by Bunge 1 Peremptory Exceptions a No Cause In of Action Bunge s peremptory exception raising the objection of no it makes three arguments First Bunge claims that Gisclair does of action either in his individual contract is a constitutional orders Gisclair Therefore not to illegal and unconstitutional 4 contract collect Bunge contends capacity taxes or in his official and La Const thereon any action taken and any action art cause not of action have a cause capacity because the VII S 21 F specifically during the period of the exemption by Gisclair to cause the to collect contract to taxes be re would be opened or judgment overruling an exception is generally considered an interlocutory judgment and is appealable See La C C P arts 1841 and 2083 However in this case we can consider the correctness of this interlocutory judgment in conjunction with the appeal of the summary judgment in favor of Bunge which is a final and appealable judgment See People of Living God v Chantilly Corp 251 La 943 947 948 207 So 2d 752 753 1968 A not 9 to cause the LTC to Charles Parish for exempted property add the to the be collected thereon would be taxes to rolls for St assessment equally illegal and unconstitutional Bunge contends that Gisclair should be estopped from bringing his Second suit because he received notice of to contest opportunity an or the the LTC but he failed silence and inaction in the any cause Bunge application s do Therefore so to listed in the direct the LTC requested action is a enable Gisclair to the assessment discretionary act contract on in of action exists where granting an ad valorem tax a 98 727 So 2d 579 So 2d 1096 and challenging the to act taxable property is After a place Bunge v a cause of action writ of exempt property s against Bunge because facility a that 97 2204 Ieyoub 3 p La contact and that he has duty to App 17 9 1st Cir 99 747 estopped from La not authority manufacturing was not a writs denied 99 0933 99 0981 because the a properly filed a mandamus to properly determine the value of the mandatory ministerial duty considering the applicable law and accepting all of the well pleaded allegations of fact in Gisclair properly asserted to of action for Gisclair also contends that he is 1097 validity of the compel the LTC no cause of the LTC exemption for 581 waiver of claim is made that the Board exceeded its establishment under Robinson 28 12 a s rolls for St Charles Parish because the Gisclair contends that he has stated a cause Bunge contends that Gisclair challenge the exemption Lastly Bunge contends that Gisclair has to by the Board proceedings before the Board constituted of action he would have had mandamus conducted exemption during hearings to exemption and had for the a cause s petition of action as true the trial Therefore the trial court court found that Gisclair overruled Bunge s peremptory exception raising the objection of no cause of action In reviewing a trial court s ruling on an 10 exception of no cause of action the court appellate raises should of law question a subject the and the trial sufficiency of the petition So 2d 346 action is 349 Fink to test the objection of no cause of action is at 349 2d So purposes of determining in the petition A petition appears claim must should be not a cause is triable the issues raised accepted as true by on the facts on 801 of no cause in the alleged The function of the Fink 2001 0987 support of action or a remedy at to p 3 801 controvert Fink 2001 0987 at the pp 3 the face of the papers and for the the exception Fink 2001 0987 be dismissed for failure the 11 28 01 of the on to state plaintiff can prove no at the well p 4 801 So 2d at 349 of action unless it a cause set facts pleaded of facts in support of any Id reviewing Gisclair for purposes of the with the trial court exemption granted receive the objection filed suit under La Const was to all of his of no cause a cause of action contesting the legality of art be built VII for an an industrial tax tax we agree industrial a to authorize since Rollins was Board or not Inc exceeded enter into the authorized under the Louisiana Constitution 11 tax hazardous by Rollins Environmental Services exemption exemption an as true In Robinson S 21 F by the Board for authority in authorizing proposing ad valorem allegations of action Specifically the plaintiffs petition alleged that the its constitutional contract petition and accepting and find that Gisclair has stated incinerator that Rollins s exception raising plaintiff taxpayers waste exception beyond doubt that After the The state only whether the law extends question exception petition by determining 348 349 at La objection of the allegations of the petition objection that the petition fails to 4 p the No evidence may be introduced to 348 4 801 2001 0987 801 So 2d to at decision is based s remedy in law based a 3 So 2d court exception raising at p anyone under the factual review because the novo legal sufficiency plaintiff is afforded Fink 2001 0987 pleading de Bryant v The peremptory designed whether the case to to because it was not a 97 2204 Robinson Rollins Const not was art as a 21 F by granting exemption not addition an Const action art s The trial exemption We likewise find s decision was decision to set whereby he is relied such conduct and precluded former is allowed La is to representations from or to Bunge s the effect of the silence aside the contract tax a tax granted a cause of exemption The doctrine of contract a party asserting rights against another who has justifiably so that he will suffer Dupont v Founded position contrary Estoppel is Management Corporation not to his a on under acts 6 La App I I special admissions favored in Louisiana law 2004 2657 p 7 good faith the party prior injury if the 2006 2334 p Hebert prevent injustice by barring Id had stated plaintiffs voluntary conduct of So 2d a at 584 assertions that Gisclair should be changed his position taking clearly exceeded its grant the industrial grant the industrial repudiate the conduct designed circumstances Harris from 1 Cir 2 20 08 App doctrine to as not granted for the CBU which was estopped from challenging the constitutionality of the equitable estoppel is defined to and facility that did a find that Gisclair has stated we merit in no s judgment s La establishment under the definition found in La Therefore Board to 8 727 So 2d at p Gisclair seeks case to a manufacturing 21 F exemption court the Board had the Board challenging challenging the on determined that court decision in Robinson is that the the basis that the VII tax establishment Likewise in this on the constitutional definition affirmed the trial court ad valorem an court of action by the Board 581 at Robinson 97 2204 authority Implicit in this cause This manufacturing a constitutional valid 727 So 2d 3 at p to according manufacturing establishment under the definition found in VII concluded that qualify establishment manufacturing May v Cir 12 22 05 928 So 2d 140 145 Bunge contends that since Gisclair received notice from the Board that it had 12 received Bunge s proposed tax amounted it is so been executed and act to too signed late for him However waiver of his a being in violation of La Const from making such a ad valorem property that true tax not do not find that his silence tax contract be an addition Estoppel which is invalid per contract 567 3 So 2d 761 781 executed Gisclair did action to 1941 not issue to a the 198 La Moreover justifiably relied at as on for So 2d at cannot se position or so waive the previously as be estopped be invoked at or In order for to validate a accepted proceeding as or a Jones 198 La 507 v had been contract from maintaining constitutionality of the estoppel changed estoppel proceedings are contract an See 781 stated to was granting the exemption and in right or become estopped such conduct and that it would suffer now establishntent See generally Graham 567 568 3 So 2d inaction in contract allegations regarding s By remaining passive until the suggested by Bunge Bunge had silence to machinery equipment andor his to be position on to 13 was allowed who has that he will suffer 2006 2334 at p Gisclair Gisclair before the Board and injury if Gisclair so Dupont applicable justifiably rely another reqmres injury if the former is allowed to repudiate the conduct 7 failure or question of whether it And if Gisclair manufacturing challenge the validity legality Graham that he should has contract exemption would have been granted by the then the Board violated the constitution in signing the of the Gisclair could not have known in advance whether exemption being granted was not an legality complain since the or rejected by the Board even about the before the Board and the LTC and 21 F S considering was subsequently challenge the to VII art challenge If it had been constitutional would an complaints to now we right the proposed industrial ad valorem Board his urged and exemption tax exemption during the proceedings having done not for the industrial he should have application the application s s action conduct as i e his LTC and change its to act contrarily to his prior We find the record devoid of any factual silence that establishing relied Bunge on the failure of Gisclair to exemption before the Board approved the exemption position as for the tax was building no on on or inaction any decisions made Bunge place Bunge to that petition request for s by Gisclair before the Board with regard of action to by Bunge s a cause exempt machinery rolls for St Charles Parish provides of mandamus is discretionary that a to the or planning Therefore In Gisclair measures as s will enable machinery equipment assessment force in this suit is of petition property list in the or a case a official public the or body a public officer Generally to do an ministerial f or In the event the contract is nullified Therefore La C C P art 3863 to we find that a 623 Bunge take such St Charles Parish to place listed in the a to be mandatory 629 630 243 s property to 2d So must writ of mandamus is compel the LTC that is act to to Bunge properly determine the value of taxable property is Long 257 La writ direct the LTC court Assessor and other property of v a duty required by law contract a be on subjected by St Charles Parish and its various taxing bodies See Bussie contract question is whether the performance he asks the trial Gisclair to Louisiana Code of Civil Procedure rolls for St Charles Parish and enable it valorem taxation direct the LTC writ of mandamus may be directed to to improper sought by Gisclair in his and taxed application s the to compel the performance of a ministerial duty required by law the LTC tax Bunge changed its and other documents attached contract find that Gisclair has stated assessment article 3863 to Rather it appears based Thus any silence effect we enable Gisclair the that the to of the CBU Lastly on or evidence or object actually constructed before the Board reviewed Bunge exemption the LTC had or the exemption the CBU the result ofthat silence a allegations to the the ad The duty to ministerial duty of 776 778 properly proper 1971 assessed remedy under properly determine the value of Bunge 14 s taxable property Accordingly valid for all of the above of action and cause that the trial court peremptory exception raising the objection of no This b we reasons find that Gisclair has stated a properly overruled Bunge s cause of action assignment of error is without merit Right ofAction No In Bunge peremptory exception raising the objection of s it claims that Gisclair either in his official in his individual capacity as the no duly elected private or action to declaratory judgment regarding the validity of the seek writ of mandamus because he does a request a distinct from that of the public at not as a have a Assessor for citizen has St Charles Parish capacity special of action right no right contract or of to interest separate and Bunge also contends that all of the large allegations made by Gisclair in his official capacity regarding the constitutionality of the contract should be dismissed because the Louisiana Constitution only the rights of persons and does assessor contends that he has result of the argues that as assessor 47 1925 1 ad valorem After bring as the he has special a to taxes contract tax district established pursuant ofa liability as a Gisclair further special interest in this suit because recipient as taxpayer Gisclair contract his office is to La specific millage RS in all Bunge on the CBU law the trial taxpayer Gisclair had that has been a Bunge through the considering the applicable as a As this suit increased assessment collected from individual taxpayer and an 47 1925 7 and would be the direct determined that a a to as an standing because he will have exemption granted through right both a the Assessor for St Charles Parish of protect government entities such against government action Gisclair contends that he has funded not protects a court right of action allegedly unconstitutionally IS agreed with Gisclair and to seek the annulment confected and to restrain his public determined that seeking violating the constitution from servants Gisclair had as assessor declaration of the a reduce the ad valorem concluded that and distinct from the unconstitutionality of the Gisclair had public collected for his pay and or a right Lastly the trial suit that large because he depends at Therefore the trial expenses which operates contact bring this to further court declaratory judgment a collected in his district taxes as assessor bring to standing The trial on court was court separate ad valorem overruled to taxes Bunge s peremptory exception raising the objection of no right of action Trial of action court rulings on reviewed de are peremptory exceptions raising the objection of no right novo on appeal because they involve questions of law App 1st Cir See In Re Succession of Jones 2003 0238 p 3 La So 2d 54 55 Generally an and actual interest which he objection of action asserts of no to whom Louisiana Paddlewheels 1130 94 that the whether the states a valid subject matter App 151 Cir including 6 25 04 5 Id litigation Falcon plaintiff has a plaintiff belongs real to the of action asserted in the suit of no n 94 2015 p 4 right of action some person and assumes questions The party raising a a legal peremptory Town of Berwick 2003 1861 v real The function of the member of the class that has a a exception raising the Gaming Com exception having 868 p 3 885 So 2d 1222 1224 jurisprudence recognizes the annulment of have been contrary cause of action for cause exception bears the burden of proof Our The 888 of the 927 A art Louisiana Riverboat v person whether the determine whether the plaintiff in the particular case is interest in the La to test the law grants the 646 So 2d 885 petition to a La C C P art 681 The See La C C P of action is right class of persons La only be brought by right of action is designed no and actual interest in the action objection can 703 11 to law the a contract right of acts unconstitutional 16 of a taxpayer of or public to seek servants judicial review that illegally confected are alleged Roussel to v Noe 274 So 2d 205 210 Our jurisprudence also 1973 action by a servants from a affect the taxpayer s sufficient judicial authority or 586 So 2d 1354 interest may be small and deprive to him insusceptible of that to La Under restrain public duties in any otherwise or 3 4 727 at pp Inc Calcasieu v The fact that the 1991 of accurate determination is Louisiana right 581 at of taxation Robinson 97 2204 1357 La enjoin unlawful violating their legal increase the burden his property to 727 So 2d Louisiana Associated General Contractors Parish School Board taxpayer or 3 at p their lawful powers transcending at 582 So 2d 97 2204 resort to taxpayer may unauthorized mode that would unjustly writ refused 281 So 2d 743 recognizes the right of a taxpayer Robinson public body Louisiana law App 1st Cir La Associated not General Contractors 586 So 2d 1357 1348 With these precepts in mind determination that Gisclair had his suit Parish do we standing and a not find error in the trial right of action individually The record reflects that Gisclair is in fact a court to s bring member of the St Charles community that would benefit from the payment of ad valorem taxes by Bunge Furthermore Gisclair had standing do not and we a find that the trial right the St Charles Parish Assessor is funded 47 1925 2 to La RS 47 1925 1 specifically establishes As Gisclair through assessment v capacity points special out as the duly the Office of assessment district Louisiana Revised Statutes among others the St Charles Parish assessment district shall be expense fund which shall be disbursed In Wooden a 47 1925 7 district Louisiana Revised Statutes 47 1925 6 by the special erred in its determination that of action in his official elected Assessor for the Parish of St Charles established pursuant court by provides that paid into the a ll funds collected assessor s salary and the assessor in accordance with law Louisiana State Tax Com 17 n 94 2481 La 20 2 95 650 So 2d 1157 1160 the supreme court Morehouse to Parish assessor constitutionality of a special a 47 1925 7 a statute deed advance district established under La assessor was deemed to tax collections assessor benefitted 47 1925 1 RS any immovable a for the ad valorem homestead In the property purchased and because his office suffered exemption diminished the tax was exemption tax concluding that the Morehouse Parish statute of buyer of a bond for occupied under the bond for deed and therefore if otherwise qualified eligible the challenging the constitutionality exemption purposes own of the to challenge a pursue the Morehouse Parish that for homestead was and right of action or Like Gisclair The Morehouse Parish contract5 standing adversely affected the ad valorem assessment providing the that statute in Morehouse Parish from upheld a assessor direct loss of collectible revenues had to challenge tax revenues since the by the standing office the assessor s supreme court reasoned district in the present case had a significant real and actual interest in maximizing the collection of ad valorem The tax assessment taxes on all taxable property in the parish The assessor executive officer of the district clearly had standing to declaratory judgment constitutionality of La the ad valorem Wooden 94 2481 Under this capacity as duly constitutionality at A bond for deed declaration operated we at of a of a the reduce to 1160 find that Gisclair has standing in his official elected Assessor for the Parish of St Charles specific millage which the a Stat 9 2948 which Rev p 7 650 So 2d contract that in all ad valorem Bunge tax on assessment district is collections in the parish the CBU should the contract is defined in La RS is to be to adversely affects the ad valorem The St Charles Parish that would be collected from 5 seeking bring collected in Morehouse Parish reasoning in St Charles Parish of a taxes action chief as 9 2941 to the as a seller after payment of a 18 tax a collections tax recipient including contract those be nullified contract to sell real property in seller in installments and in which the purchase price buyer paid by stipulated sum agrees to deliver title the challenge the to the buyer and those taxes Assessor Office of that action s tax are used for the purpose of financing the St Charles Parish As chief executive officer See La R S 47 1925 7 operations receiving body Gisclair has standing to bring declaratory judgment a behalf of the district See La RS 47 1925 2 A 2 on Accordingly find that Gisclair has demonstrated we both in his individual and in his official capacity Therefore the trial court the sufficient interest to sustain his action peremptory exception raising right of action This c of no objection properly overruled capacity a Bunge s of error is without merit assignment Prescription In Bunge peremptory exception raising the objection of prescription it s argues that Gisclair by Bunge and is s suit against Bunge alleges injuries based accordance with La C C between the to subject art one on prescriptive period for delictual actions in Bunge further submits that since the contract year 3492 Bunge and the Board and Department was entered into but Gisclair s suit filed until was not the date ofthe Gisclair contract s tortious conduct August suit is 12 2003 prescribed and more on May 16 2002 than one year from should be dismissed However Gisclair contends that his suit seeks annulment of is therefore either not prescriptive period set 2032 not be provides that an subject or was discovered After claims were as a prescriptive period 2032 art ction for annulment of a an case Gisclair or subject to contract and the five year Louisiana Civil Code article absolutely ction of annulment of a years from the time the in the reviewing a forth in La C c prescribe and that the brought within five to a relatively null contract does null contract must ground for nullity either ceased of error or fraud s petition the trial based upon his contention that the Louisiana Constitution because the exemption 19 court contract was not noted that Gisclair was s in violation of the granted for an addition to a manufacturing establishment and concluded that the relief ultimately sought by Gisclair the nullification of the contract was of whether Gisclair null under either Therefore find of a in the trial petition that the trial be of La Const VII art the trial on an S Bunge on our issue and enter a in petition in this relatively art 2032 sought matter we nullification 19 of his original declaratory judgment declaring act timely the by the Board in violation and therefore void from was suit s paragraph arbitrary and capricious August 12 2003 or under La C C conclusion that Gisclair s 21 F absolutely null review of the properly overruled Bunge court was regardless noted that peremptory exception raising the s specifically requested court improper suit filed s court Gisclair contract Gisclair Based contract court brought timely was overruled court prescription no error contract to claiming that the theory his suit the trial of objection was The trial inception Accordingly under La C c 2032 and art peremptory exception raising the s exception of prescription This 2 assignment of error is also without merit Declinatory Exception Raising the Objection of Lack of Subject Matter Jurisdiction In matter Bunge declinatory exception raising the objection of lack of subject jurisdiction regulation been s it contends that and control of ad valorem constitutionally delegated to the trial court has tax exemptions 94 0971 La contends that the trial justiciable controversy Bunge until the LTC property back to the court because such the Board and the governor position in this regard Bunge cites Boeing Co Development authority no App 1st Cir lacked v 6 23 95 subject matter Louisiana In the Board issues assessment a matters 657 So 2d 652 order Bunge further is no Department or or refuses rolls of St Charles Parish and that all 20 have support of its jurisdiction because there change the Dept of Economic between Gisclair the Board the LTC the or over to add the allegations directed at the correctness of granting the LTC in accordance with the provisions being subjected to judicial tax exemption should be reviewed by the forth in La R S 47 1989 set review On the other hand Gisclair contends that the trial jurisdiction matter in authority consider to granting an a claim such ad valorem tax as his has court that the Board exceeded its for exemption a had exemption contract that the contract found and doing we decision on already been approved by the court was a noted that it contract was a was render by the Board the governor state s checks and balances was Therefore the trial The Louisiana Constitution civil and criminal all constitution regulation La Const art V vests court except S 16 A This tax difference matter division of the a further noted that as to Bunge would branches of declinatory s with original jurisdiction otherwise authorized court courts traditionally handled by the executive branch and 21 the three courts has by the previously found that the were As such these jurisdiction of the district In the top executive of this as overruled exemptions the Board and the governor court matter jurisdiction the district matters and control of ad valorem to tax the judicial branch that court between exception raising the objection oflack of subject subject a essentially the only check of the actions of an executive board this delegated ad valorem the governor who makes the final not constitutional but rather that it government meaningless over However The trial governor distinction without entered into position urged by Bungethat was an was not a yet been approved by the governor whereas in this charged with making such determination The trial take the state not that this distinction whether executive branch was has agree the trial so that facility Bunge contends Robinson is distinguishable because it involved case original subject establishment and cites in support thereof Robinson manufacturing before et seq matters matters because were not constitutionally were they outside the are matters considered civil within the grant of matters 12 657 So 2d 0971 at p Boeing 94 However deprivation of right the a at authority legislative grant of 16 A V exists when there is judicial scrutiny to art See 659 constitutionally protected right exceeded constitutional exceeded its original jurisdiction by La Const or an assertion that an allegation that an an agency administrative agency Boeing 94 0971 authority claim of a at p 8 657 So 2d at 657 In this case specifically alleged Gisclair that the Board exceeded its constitutional authority and acted arbitrarily and capriciously when it granted industrial exemption tax and other property entered into the for Bunge the CBU at because contract s installation of added its Destrehan Bunge manufacturing establishment according court determined that Gisclair manufacturing establishment Board had exceeded its sufficient to The have judicial regarding the jurisdiction review to this case granting granted addition the an an to tax authority be allegations of any Destrehan was not a The trial grain elevator was not a the constitutional definition and that the original jurisdiction exemption review or recourse exceeds constitutional s authority in granting the ad valorem action within its bring the to at grain elevator and the constitutional definition allegations that Bunge according machinery equipment Louisiana grain elevator allegation that the Board acted in the decision not s to s an nature an tax were We agree unconstitutional manner If the district requires courts do of unconstitutional actions there is no re examined exemption against unbridled abuse of Robinson power that 97 2204 at p 3 727 So 2d at 581 In allegation that that the Board exceeded its constitutional authority by exemption exemption an to for Bunge requires this machinery equipment court to andor property that existing manufacturing establishment exceeded its constitutional grant of authority 22 determine if the Board Thus we If so was not an then the Board find the trial court properly exercised in this subject matter jurisdiction and matter properly overruled Bunge declinatory exception raising the objection of lack of subject assignment This B matter jurisdiction 6 of error is likewise without merit Summary Judgment Summary judgments court using the summary judgment reviewed are is procedure no 4 genuine La answers to judgment party s there is State Farm Mutual Insurance v moving party no genuine issue oflaw proof is will not on as to s claim action the or defense shows that there is no at genuine to trial avoid a and on file together with However at proof by pointing one or more trial out to Thereafter the art mover the moving court that the non 966 C 2 issue of material fact La C C P Bunge s assertion that Gisclair to moving party 966 must satisfy its to Failure art the to C not do so 2 permit a allegations regarding the correctness of the exemption must be reviewed by the LTC in accordance with the provisions set Those provisions forth in La RS 47 1989 et seq before being subjected to judicial review address the procedure to protest ad valorem tax assessments and the correctness of the value placed on property Gisclair s suit is not a correctness challenge under La RS 47 l989 because the values of the CBU and grain elevator are not at issue no merit to any issues for on elements essential Louisiana Code of Civil Procedure articles 966 and 967 do We likewise find inexpensive 966 B art moving party C CP judgment granted if the pleadings establish that it will be able La A full scale trial The summary just speedy bear the burden of produce factual support sufficient evidentiary burden of proof to 701 material fact and that the La C C P absence of factual support for adverse party d the burden of proof on the motion is satisfied an 935 So 2d 698 device used to secure appellate determination of whether s Cir 2 10 06 procedural with the novo Id The motion should be as a matter The initial burden of which the a sl court interrogatories and admissions affidavits show that there is to I App designed determination of every action is entitled appeal de issue of material fact is favored and is depositions Granda appropriate motion for summary judgment is when there is on criteria that govern the trial same Company 2004 2012 p 6 s 23 s party to Thus a or utilize unsworn document that is attached judgment Boland not as no letters or not judgment evidence 14 15 an ad valorem tax certified 2003 1297 pp 5 6 La proof 24 11 La unsworn or unverified motions for summary judgment attaching such documents v 17 04 Memorial Medical Center 870 So 2d 1044 on his contention that exemption under La Const 21 F S art for in Section 20 of this Article the Bunge VII S not was Notwithstanding any exemption provided following property and Industry its or successor no other with the of the governor may enter into contracts for the exemption from ad valorem taxes of a new manufacturing establishment or an approval an and conditions existing manufacturing establishment as the board with the approval on such terms of the governor deems in the best interest of the state The used herein additions manufacturing establishment terms a business of working gives as new raw materials into wares shapes qualities or combinations through some artificial process new has gone addition plant or establishment or an addition or existing plant or establishment which engages in the mean to any and 24 suitable for to matter use or which to Louisiana 21 F contrary provision of this Section the State Board of Commerce and to a 2003 entitled exempt from ad valorem taxation addition to writ denied 1053 provides In addition to the homestead Section 21 F 04 transform such documents into competent not Williams premised Constitution article VII shall be not motion for summary on a Jury is or 876 So 2d 93 suit is s to be considered App 4th Cir 3 La 2004 0963 La 6 4 04 Gisclair in any way the burden of reports annexed motion for summary judgment does 1806 pp to value evidentiary meeting self proving and will summary or sworn summary judgment evidence 878 So 2d 808 813 writ denied 2004 2286 Therefore in documents such affidavit as West Feliciana Parish Police v 25 04 888 So 2d 231 not an affidavit has to an App 1st Cir 6 are and unverified documents which already Because Gisclair seeks to annul he will bear the burden of granted Destrehan establishment is in engages plant Notably establishment or and manufacturing or that tax exemption plant to any new Bunge to addition to was an therefore which does to or establishment which engages not he has as in In Bunge s Gisclair to president tax According s or to manufacturing suggested a contract grant an to to in be used that the ad valorem an existing Therefore Gisclair establish that the CBU was was an all not at its ie s an soybean motion for summary judgment it contended that to summary judgment dismissing CT Jones and to Mr non income Thebeau global market tax Bunge is a specialized place judgment and in the affidavits of Gregory employed by Bunge responsible in Canada its claims summary Mr Thebeau is and assistant controller and is establishment s make engage in require that the for any addition motion for summary judgment commodities value added in the s absence of factual support for this essential element of its claim and L Thebeau and Clair N income not engaged exclusively authority Bunge submitted in support of its motion for vice be not existing manufacturing establishment s Bunge provision simply provides governor has the plant Bunge was entitled opposition does grain elevator but rather that the CBU Bunge processing facility there s this noted previously 21 F VII art already been soybean processing facility which grain elevator a Rather approval of the burden of proof at trial is addition we that has the property ultimately exempt under such establishment or a As seeking the exemption exclusively in manufacturing Board with the proof at trial Const La contract exemption comprised of manufacturing manufacturing an as its for the administration of the United States and Mexico primary supplier of high quality agricultural food and feed According to Mr ingredients Thebeau and food Bunge s products Destrehan integrated soybean processing and grain elevator functions help Bunge the second largest soybean crusher in the United States 25 Mr Thebeau explained that the Bunge s Destrehan establishment s Bunge soybean processing division terms used are Destrehan establishment is with the Louisiana legal entity registered grain division nor the the Louisiana Secretary of State in Louisiana or State Income Tax return at State as a single corporation a Additionally he stated that soybean processing division have registered with as a any other state operated by Bunge Secretary of capable of doing business in the State of Louisiana neither the grain division by Bunge for internal purposes and owned and wholly and separate legal entity capable of doing business and further that Bunge files that encompasses all of Bunge s a unified Louisiana Louisiana operations including its Destrehan establishment Mr the CBU into the CBU that from although Thebeau further stated that are elevator exceeds the volume of grain destined for the grain soybeans unloaded unloaded by by the soybean processing facility the margins yielded soybean by products substantially exceed those generated by whole grains exported from Bunge Mr Jones is s Destrehan establishment employed by Bunge Destrehan establishment and serves as Destrehan establishment and various boards and commissions Charles Parish Economic that in 2002 completed According additional operation costs administrative manager the and local officials Jones Bunge Bunge s s Bunge s Bunge s offices agencies Department the LTC the St Council and Gisclair at at between contact person the Board the Development to Mr to Jones including as state construction of the CBU priority is Mr the volume of Mr Jones stated Destrehan establishment Destrehan establishment s was first keep the soybean processing facility running because Bunge incurs explained establishment has twenty four hours if the that the historically a day seven soybean processing facility is forced to shut down soybean processing facility with days a a few market driven in Bunge Destrehan exceptions operated week and three hundred and 26 s sixty five days a year Mr valorem Jones stated that he preparation of the of the CBU covered at by the establishment going ocean contract Bunge s contract and constructed was enhance profitability of Bunge s ability not for the the CBU is used being utilized grains destined for export in its grain elevator addition of the CBU when storage capacity Bunge Destrehan s do to so to to unload unload Mr Jones is reached on enhances the Mr Jones Destrehan establishment further stated that when the CBU is soybean processing facility taxes soybean products and grains berth and that its one and negotiation Jones stated that the CBU Mr to load combinations of to vessels from competitiveness application for the ad s with the Board for the exemption from ad valorem Destrehan establishment s ability Bunge for the CBU and assisted with the exemption tax familiar with was soybeans destined soybeans and other explained that with the meal can be loaded onto barges for storage thus enabling the soybean processing portion of Bunge Destrehan establishment to continue its ready for loading the meal transferred into the vessel CBU can And further when crushing be unloaded from the Mr Jones explained that soybean processing would be interrupted a s vessel is barges by the CBU and to prior when construction of the storage capacity was reached Mr Jones further stated that the Destrehan establishment CBU has been the sole river barges to the cannot from of processing portion are and since 2003 transferred from soybean processing facility although Bunge backup purposes soybeans processed Mississippi function without the CBU by which soybeans means bucket unloader system for majority soybean processing portion of Bunge River of at Bunge barges by Bunge s s Mr Jones the Mississippi has retained the old explained that the Destrehan establishment the CBU and transferred to Destrehan establishment and that all 27 s vast are unloaded the soybean machinery at Bunge Destrehan establishment is utilized s processing with the exception of Jones stated that substantial Bunge advantage a corn at one time cracker that was Destrehan establishment is s soybean added in 2006 Mr unique and gives Bunge because it global competitors its over another for or can a raw process soybeans into finished products with the concomitant capability of directly loading these products onto advantage of Bunge s Mississippi River barges by origins many establishment which allows s that all sole soybeans processing soybeans Mississippi River to of different to qualities to create a Bunge of can soybeans be Bunge shipped taken from Destrehan s be blended Jones also stated that the St Charles Parish Tax Assessor has taxed Mr Bunge the initial the CBU because down the and up Jones further stated that another Destrehan establishment is that it enables higher quality soybean by product through from Mr going vessels ocean Destrehan establishment taxes charged to Bunge s as a single establishment for the last 30 years and Destrehan establishment legal entity responsible for the operations of Bunge According to Bunge application paid by Bunge the Destrehan establishment for the exemption request for the exemption the basis of its entails the building of a and the installation of related conveyors to This new convey products to the facility for processing and export CBU should increase the facility s unloading capacity by an estimated new enclosed s s are CBU percent and the slower moving buckets and inclined conveyor system should reduce breakage when handling soybeans and other 40 Grain grains increased storage capacity and shipping capacity by this project were not As outlined above and in the attached exhibits Bunge s upgrade project is critical to our soybean processing operation and does not increase In grain elevator storage or shipping capacity opposition to submit any affidavits relied on Bunge s motion for summary depositions admissions or judgment Gisclair did interrogatories documentary evidence received from Bunge pursuant production of documents This Instead Gisclair to a request for documentary evidence consisted of Bunge 28 not s bid solicitation for the construction of the CBU which described the CBU elevator and various internal memoranda of upgrade provide that Bunge s Bunge would increase allow Bunge Bunge s as an upgrade to the Destrehan establishment Destrehan s grain grain division would be responsible for constructing and Board of Directors s a Bunge that purportedly funding the CBU that the proposal for the construction of the CBU to as establishment to s presented was grain elevator that the CBU grain handling capacity and handle that corn only small a percentage of the grain actually unloaded by the CBU would be subject processing at the soybean processing facility and that Bunge preferred to the CBU rather than have to utilize its Gisclair contends this addition an to Bunge s documentary evidence establishes that the CBU grain elevator and therefore judgment evidence and therefore Gisclair genuine issues of material fact We were not affidavits affidavit and had assuming establishes that the CBU does not negate addition an Const the or to its art VII 9 contract be as was an contradict not was unable to not eligible competent summary establish that there The documents submitted agree were not evidentiary value certified on for the or were by Bunge attached to an motion for summary a Gisclair contends that this addition Bunge s to Bunge evidence s documentary evidence grain elevator establishing that the such evidence CBU was also existing manufacturing establishment As previously stated La 21 F used does operations Bunge s not exclUSively used for and has benefited an no was was 1297 pp 5 6 878 So 2d at 813 judgment See Boland 2003 Nevertheless was in any way or sworn to therefore construct competitors grain elevators Bunge contends that this evidence exemption to require that Bunge in Bunge manufacturing s s property that is exempt under Although Bunge Destrehan establishment s evidence establishes that the CBU integral part of Bunge s was CBU may be manufacturing constructed soybean processing operations and 29 non s was an to serve as addition to Bunge succinctly noted in its court Or in other words existing manufacturing establishment s for reasons support for Gisclair s claim that the CBU manufacturing establishment the CBU served judgment Because this evidence is sufficient to purpose was the burden then shifted We find that Gisclair failed this issue on competent summary judgment evidence his evidentiary burden of proving Bunge to s Bunge properly granted was summary Moreover for the not entitled denied Gisclair judgment in to s and entered into the s judgment contract that present presented all an no to carry addition the judgment Bunge motion for summary evidence was was not we to was no and same an judgment We evidentiary shift the burden genuine to is issue of material to set forth fact for trial 30 court correctly when it from ad valorem to on was issues of material fact capriciously Bunge s grain own approved taxes for elevator motion for by him in his opposition to previously determined that such quality be to given weight in of material fact properly supported the adverse party suit correctly granted by Gisclair in support of his of sufficient judgment genuine addition evidence relied s court Gisclair claims that he judgment arbitrarily was court also find that the trial determining whether there remain genuine issues motion for summary dismissing Gisclair provided an exemption the evidence submitted summary a to Therefore the trial md that the trial because there CBU because the CBU However s was not at exemption favor of Bunge motion for summary summary an same reason we that that the Board and State acted Bunge to motion for summary judgment s entitled existing issue of material Gisclair so s establish that he would be able that the CBU at trial Bunge existing manufacturing establishment and likewise that he would be able prove that Bunge to to Gisclair to dual a absence of factual genuine a do to an addition an competent summary judgment evidence demonstrating fact out point not the trial as La c c P specific facts Without art Unless the 967 does showing not that there is appropriate supporting documentation Gisclair failed trial court correctly denied Accordingly granting Bunge s to meet on motion for summary we For all of the above and judgment overruling Bunge s and the June II court and judgment deny Gisclair III s application All equal and to for a costs amounts foregoing June 11 denying 2007 Gisclair s judgment motion for reasons the June 11 2004 interlocutory peremptory and declinatory exceptions is hereby 2007 judgment granting s suit is the motion for summary summary judgment filed by hereby affirmed and Gisclair s supervisory writ is hereby denied of this of appeal 3 116 00 11 2004 in the to the defendantappellant JUNE s CONCLUSION dismissing Gisclair and judgment and the supervisory writ application judgment filed by Bunge denying the motion for Gisclair summary his motion hereby affirm the trial we summary judgment and affirmed his burden the amount of 6 232 00 are plaintiff appellant Clyde Bunge North America JUDGMENT 31 A assessed in Rock Gisclair Inc AFFIRMED JUDGMENT AFFIRMED WRIT DENIED hereby JUNE 11 2007
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