VOA WILLOWS AFFORDABLE HOUSING CORPORATION, INC. Vs. MARINA M. KAHN, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE

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NOT DESIGNATED FOR PUBLICATION VOA WILLOWS AFFORDABLE HOUSING CORPORATION, INC. * NO. 2000-CA-2715 * COURT OF APPEAL VERSUS * FOURTH CIRCUIT MARINA M. KAHN, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE * STATE OF LOUISIANA * * ******* CONSOLIDATED WITH: CONSOLIDATED WITH: VOA/NEW ORLEANS AFFORDABLE HOUSING CORPORATION, INC./WINDRUN APARTMENTS NO. 2000-CA-2716 VERSUS MARINA M. KAHN, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE CONSOLIDATED WITH: CONSOLIDATED WITH: VOA NEW ORLEANS TOWERS AFFORDABLE HOUSING CORPORATION NO. 2000-CA-2717 VERSUS MARINA M. KAHN, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE CONSOLIDATED WITH: CONSOLIDATED WITH: VOA/NEW ORLEANS AFFORDABLE HOUSING CORP. II/ LAKEWIND EAST APARTMENTS NO. 2000-CA-2718 VERSUS MARINA M. KAHN, DIRECTOR OF FINANCE, CITY OF NEW ORLEANS, DEPARTMENT OF FINANCE CONSOLIDATED WITH: CONSOLIDATED WITH: VOA NEW ORLEANS TOWERS AFFORDABLE HOUSING CORPORATION (NEW ORLEANS TOWERS) NO. 2000-CA-2719 VERSUS THOMAS L. ARNOLD, ASSESSOR, FIFTH MUNICIPAL DISTRICT CONSOLIDATED WITH: CONSOLIDATED WITH: VOA NEW ORLEANS AFFORDABLE HOUSING CORPORATION II (WINDRUN APARTMENTS) AND VOA NEW ORLEANS AFFORDABLE HOUSING CORPORATION (LAKEWIND EAST) AND VOA WILLOWS AFFORDABLE HOUSING CORPORATION (THE WILLOWS) NO. 2000-CA-2720 VERSUS ERROL G. WILLIAMS, ASSESSOR, THIRD MUNICIPAL DISTRICT CONSOLIDATED WITH: CONSOLIDATED WITH: ERROL G. WILLIAMS, IN HIS CAPACITY AS ASSESSOR FOR THE THIRD MUNICIPAL DISTRICT FOR THE PARISH OF ORLEANS NO. 2000-CA-2721 VERSUS THE LOUISIANA TAX COMMISSION AND VOA WILLOWS AFFORDABLE HOUSING CORPORATION, INC. CONSOLIDATED WITH: CONSOLIDATED WITH: ERROL G. WILLIAMS, IN HIS CAPACITY AS ASSESSOR FOR THE THIRD MUNICIPAL DISTRICT FOR THE PARISH OF ORLEANS NO. 2000-CA-2722 VERSUS THE LOUISIANA TAX COMMISSION AND VOA NEW ORLEANS AFFORDABLE HOUSING CORPORATION II CONSOLIDATED WITH: CONSOLIDATED WITH: ERROL G. WILLIAMS, IN HIS CAPACITY AS ASSESSOR FOR THE THIRD MUNICIPAL DISTRICT FOR THE PARISH OF ORLEANS NO. 2000-CA-2723 VERSUS THE LOUISIANA TAX COMMISSION AND VOA NEW ORLEANS AFFORDABLE HOUSING CORPORATION I CONSOLIDATED WITH: CONSOLIDATED WITH: THOMAS L. ARNOLD, IN HIS CAPACITY AS ASSESSOR FOR THE FIFTH MUNICIPAL DISTRICT FOR THE PARISH OF ORLEANS NO. 2000-CA-2724 VERSUS THE LOUISIANA TAX COMMISSION AND NEW ORLEANS TOWERS AFFORDABLE HOUSING CORPORATION, INC. CONSOLIDATED WITH: CONSOLIDATED WITH: VOA NEW ORLEANS TOWERS AFFORDABLE HOUSING CORPORATION (NEW ORLEANS TOWERS) NO. 2000-CA-2725 VERSUS THOMAS L. ARNOLD, ASSESSOR, FIFTH MUNICIPAL DISTRICT CONSOLIDATED WITH: CONSOLIDATED WITH: VOA NEW ORLEANS AFFORDALBE HOUSING CORPORATION II (WINDRUN APARTMENTS) AND VOA NEW ORLEANS AFFORDABLE HOUSING CORPORATION (LAKEWIND EAST) AND VOA WILLOWS AFFORDABLE HOUSING CORPORATION (THE WILLOWS) NO. 2000-CA-2726 VERSUS ERROL G. WILLIAMS, ASSESSOR, THIRD MUNICIPAL DISTRICT APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 99-2933, C/W 99-2934, C/W 99-2935. C/W 99-2937, C/W 99-11869, C/W 99-11870, C/W 99-14143, C/W 99-14144, C/W 99-14145, C/W 99-14146, C/W 99-15567, C/W 99-15568 DIVISION “D” Honorable Lloyd J. Medley, Judge ****** Judge David S. Gorbaty ****** (Court composed of Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge David S. Gorbaty) Joseph E. Friend BREAZEALE, SACHSE, & WILSON, L.L.P. 909 Poydras Street LL&E Tower, Suite 1500 New Orleans, LA 70112 -andManville F. Borne David R. Cassidy BREAZEALE, SACHSE & WILSON, L.L.P. 23rd Floor, One American Place P. O. Box 3197 Baton Rouge, LA 70821 COUNSEL FOR PLAINTIFF/APPELLEE Mavis S. Early City Attorney Evelyn Pugh Chief Deputy City Attorney Joyce G. Joseph Deputy City Attorney 1300 Perdido Street City Hall - Room 5E03 New Orleans, LA 70112 COUNSEL FOR DEFENDANT-APPELLANT Salvador Anzelmo A. Mark Flake 365 Canal Street One Canal Place, Suite 2800 New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT AFFIRMED Defendants Marina M. Kahn, et al. appeal the denial of a motion for summary judgment filed by Thomas L. Arnold, in his Capacity as Assessor for the Fifth Municipal District for the Parish of Orleans and Erroll G. Williams, in his Capacity as Assessor for the Third Municipal District for the Parish of Orleans (“Assessors”). They also appeal the granting of the cross-motion for summary judgment filed by plaintiffs VOA Willows Affordable Housing Corp., Inc., et al., wherein the trial court held that the plaintiffs are exempt from ad valorem taxes and ordered the City to refund such taxes, which had been paid under protest. For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY Plaintiff corporations are the owners and operators of four apartment complexes in the city of New Orleans: VOA New Orleans Towers Affordable Housing Corporation; VOA Willows Affordable Housing Corporation, Inc.; VOA/ New Orleans Affordable Housing Corporation, Inc./ Windrun Apartments; and VOA/ New Orleans Affordable Housing Corp. II/ Lakewind East Apartments (“VOA Entities”). VOA Entities originally filed suit in the above matters seeking a refund of 1999 ad valorem taxes paid under protest. The Assessors moved for summary judgment, arguing that the facts divulged by the four corporations clearly showed that the corporations were not actually organized and operated exclusively for a charitable purpose. VOA Entities filed a cross-motion for summary judgment, alleging that it met the requirements of LSA-Const. Art. VII, § 21(B)(1)(a) so as to be exempt from payment of ad valorem taxes, and therefore was entitled to judgment as a matter of law, ordering a refund of all such taxes paid by it under protest. The plaintiffs also relied upon this court’s ruling in New Orleans Towers Affordable Housing Corp., Inc. v. Kahn, 98-1240, 98-1241, 98-1242, 98-1243, 98-1244, 98-1245, 98-1246 (La. App. 4 Cir. 12/29/98), 744 So. 2d 50, which found the four entities at issue in the instant case to be exempt from ad valorem taxation. After a hearing, the trial court denied the Assessors’ motion for summary judgment. It granted the motion of VOA Entities, decreeing that it meets the requirements of LSA-Const. Art. VII, § 21(B)(1)(a), and that its real property is exempt from ad valorem taxation. The court ordered the City of New Orleans to refund the 1999 real property taxes paid under protest. The Court further granted the mandamuses sought by the Entities and ordered the Assessors to treat the properties of VOA Entities as tax exempt. DISCUSSION Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Guy v. McKnight, 99-2284 (La.App. 4 Cir. 2/16/00), 753 So.2d 955, writ denied, 2000-0841 (La. 6/16/00), 764 So.2d 963; Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180. Summary judgment is properly granted only if the pleadings and evidence show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. Art. 966 (C). Article 966 has recently been amended; the burden of proof remains with the mover to show that no genuine issue of material fact exists. Now, however, once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to present evidence of a material factual dispute mandates the granting of the motion. See Hayes v. Autin, 96-287 (La. App. 3 Cir. 12/26/96), 685 So.2d 691. We must review the summary judgment with reference to the substantive law applicable to the case. To affirm summary judgment, we must find that reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court. Washington v. State, Dept. of Transp. & Development, 95-14 (La. App. 3 Cir. 7/5/95), 663 So.2d 47. Defendants assert that the trial court erred in denying the Assessors’ motion for summary judgment, arguing that there is no genuine issue of fact and no factual support for the Entities’ claim that they are organized and operated exclusively for charitable purposes. However, the denial of a motion for summary judgment is a non-appealable interlocutory judgment and is not properly before this court. We decline to exercise our supervisory jurisdiction over this matter. Defendants further contend that the cross-motion for summary judgment was incorrectly granted because the VOA Entities failed to prove that the corporations were organized and operated exclusively for charitable purposes. They aver that genuine issues of material fact remain as to whether any part of the net earnings of the businesses inure to the benefit of the corporations’ members. The root of their argument lies within the New Orleans Towers Affordable Housing opinion, which addressed the City’s lack of proof on this issue: As to the contention that N.O. Towers was a commercial enterprise operating under the ‘cloak of a non-profit organization,’ the trial court noted that the City had offered no proof whatsoever to support this argument, despite having been given adequate time for discovery. On the other hand, it found that N.O. Towers offered proof to support its claim to tax exempt status, specifically, an IRS ruling that providing adequate housing or affordable housing to low income families is a charitable purpose. Id. at 53. In its reasons for judgment in the instant case, the trial court opined: Defendants’ interpretation of this aspect of the Fourth Circuit’s opinion as determinative is not sufficiently proven to prevail on the Motion for Summary Judgment. Contrariwise, the VOA Entities have established very clearly in their Cross-Motion that they are in complete compliance with the requirements of the Louisiana Constitution for tax exemption of their property. The Assessors assert that defendants have used profits from their operations of four apartment complexes improperly. However, there is no proof whatsoever that this is so. On the other hand, the VOA Entities have shown affirmatively that they do not use any of such profits for any purpose other than to support the operation of those properties. The Court finds affirmatively that there is no private inurement which is one of the qualifying provisions for exemption in the Constitution and also finds that the other provisions for exemption are followed scrupulously by the VOA Entities. It is well settled that as long as a non-profit organization is benefiting the purpose for which it was organized, it is not a commercial entity, and is tax exempt. Bd. of Administrators of the Tulane Educ. Fund v. La. Tax Comm’n, 97-0663, 701 So.2d 702 (La.App. 4th Cir. 10/1/97) [sic]. Without more, the court finds that the decision of New Orleans Towers Affordable Housing [citation omitted] is controlling in this matter. After reviewing the record, we find that it supports the rulings of the trial court. CONCLUSION No genuine issues of material fact exist. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed. AFFIRMED

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