Plaintiff, Assessor Erroll ,G. Williams, appeals the trial court’s judgment granting defendant’s, Belle of Orleans, L.L.C., peremptory exception of no right of action. Assessor Erroll G. Williams filed a petition
FACTS AND PROCEDURAL HISTORY
Assessor for the Third Municipal District of the Parish of Orleans Erroll G. Williams, (“Assessor Williams”), asserts that in accordance with the Louisiana statutes and the Rules and Regulations of the Louisiana Tax Commission, the fair market value of Belle of Orleans, L.L.C. d/b/a Bally’s Casino (“Belle of Orleans”) for ad valorem tax purposes for the 2002 tax year was assessed at $21,149,630.00. Belle of Orleans appealed its valuation to the Orleans Parish Board of Review, who affirmed Assessor Williams’ 2002 tax valuation. It was from this affirmation pthat Belle of Orleans appealed to the Louisiana Tax Commission (“the Tax Commission”). On August 7, 2002, the Tax Commission reduced the 2002 tax year valuation of the Bally’s Casino, owned and operated by the Belle of Orleans, from $21,149,630.00 to $6,450,000.00. The City of New Orleans refunded to Belle of Orleans the taxes it had previously paid under protest attributable to the Assessor’s valuation, in excess of the amount found by the Tax Commission.
On September 4, 2002, Assessor Williams, seeking review of the Tax Commission’s decision, filed a Petition for Appeal and Judicial Review in district court naming Belle of Orleans and the Tax Commission as defendants. Assessor Williams avers that the Petition for Appeal and Judicial Review filed in district court was filed in his capacities as both (1) Assessor for the Third Municipal District for the Parish of Orleans and (2) the bona fide representative of the Board of Assessors of the Parish of Orleans, an affected tax-recipient body. Defendant, Belle of Orleans, filed a peremptory exception of no right of action asserting that pursuant to La. R.S. 47:1998, plaintiff, Assessor Williams, was not specially authorized to file this action as required for a representative party by Louisiana Code of Civil Procedure article 694.
On April 16, 2003 the City of New Orleans (“the City”) filed a Petition of Intervention, in which it aligned itself with Assessor Williams in both his capacities and requested the same relief sought by Assessor Williams against Belle of Orleans and the Tax Commission.
On April 25, 2003, after arguments, the trial court granted the peremptory exception filed by Belle of Orleans. Although providing no written reasons for judgment, the record reflects that the trial court informed the parties in open court that her decision to grant the exception of no right of action was “based on the | .Johnson decision.” The trial court’s judgment granting the defendant’s peremptory exception of no right of action was entered on May 13, 2003.
It is from this judgment that plaintiff, Assessor Williams, appeals. On appeal, defendant, the Tax Commission, adopts the position of Assessor Williams insofar as the authority of the tax assessor to seek judicial relief. However, with respect to the plaintiffs assignment of error regarding the constitutionality of the assessment, the Tax Commission adopts the position of Belle of Orleans.
LEGAL ANALYSIS
The Louisiana Constitution (La. Const.) article VII § 24 provides that in New Or
In the case sub juckice, Assessor Williams asserts four assignments of errors:
1. The trial court erred as a matter of law in presumably finding that Assessor Williams had no right of action in his official capacity as Assessor to institute the proceeding below;
2. The trial court erred as a matter of law in finding that Assessor Williams had no right of action in his capacity as the “bona fide representative of an affected taxjrecipient4 body,” the Board of Assessors, to institute the proceedings below;
3. The trial court erred as a matter of law in failing to sustain Assessor Williams’ contention that the Tax Commission’s legislatively authorized review of any Assessor or Board of Review’s determination of property values for purposes of ad valorem taxes was unconstitutional;
4. The trial court erred in holding that the statutory procedure specified in. La. R.S. 47:1998 permitting appeals to -the Tax Commission and appeals from decisions of the Tax Commission to the district courts is not unconstitutional for failure to provide notice.
STANDARD OF REVIEW
Appellate review of a question of law involves a determination of whether the lower court’s interpretive decision is legally correct. Johnson v. Louisiana Tax Commission and Panacon, 2001-0964 (La. App. 4 Cir. 1/16/02),
First Assignment of Error
Plaintiffs allege that that trial court erred as a matter of law in finding that Assessor Williams had no right of action in his official capacity as Assessor to institute the proceedings in district court seeking judicial review. La. R.S. 47:1998 provides for Judicial Review of Tax Commission decisions. La. R.S. 47:1998 C provides:
| BThe assessor shall bring suit, when necessary to protect the interest of the state, and shall also have the right of appeal and such proceedings shall be without cost to him or the state.
In applying the statutes that the legislature has enacted and has declined to repeal, the Assessor has the statutory authority to bring suit in which the protection of the interest of the state is required. A peremptory exception of no right of action can be brought at any stage of the proceeding in the trial court prior to a submission of the case for a decision or for the first time in the appellate court if pleaded prior to a submission of the case for a decision if proof of the ground of the exception appears of record and even may be noticed by either the trial or appellate court of its own motion. Lambert v. Donald G. Lambert Const Co.,
Citing the majority opinion in Johnson III, defendant Belle of Orleans avers that the assessor does not have the right of action under La. R.S. 47:1998 C to seek review of a Tax Commission decision because there is no state interest in the amount of the assessment to protect. Further, Belle of Orleans relies on the decision rendered in Johnson v. Pan American Life Insurance Company,
In January 2002, in Johnson v. Louisiana Tax Commission,
In February 2002, in Johnson v. New Orleans Charities Building Corporation,
However, in September 2002, in Johnson v. Louisiana Tax Commission
Second Assignment ofEtror
Assessor Williams further avers that the trial court erred as a matter of law in finding that Assessor Williams had no right of action in his capacity as the “bona fide representative of an affected tax-recipient body,” the Board of Assessors, to institute the proceedings in district court. La. R.S. 47:1998 A(l)(a) provides that “any tax payer or bona fide representative of an affected tax-recipient body ... shall have the right to institute suit.” Defendant avers that Assessor | ¡Williams attempted to circumvent this holding in asserting that he also filed suit pursuant to 47:1998 A(l)(a) as the bona fide representative of the Board of Assessors, an affected tax-recipient body.
In Johnson I, this Court held that because Assessor Johnson filed suit in her
Defendant, Belle of Orleans, avers that notice received by the assessor, in his capacity as assessor, constitutes notice to the Board, of Assessors. Based on this argument, it is established that defendant concedes that the assessor is a bona fide representative of the affected tax-recipient body, the Board of Assessors. The linrecord establishes that Assessor Williams filed suit not only in his official capacity as Assessor, but also as the bona fide representative of the Board of Assessors. Therefore, in accordance with La. R.S. 47:1998 A(l)(a), we find that the trial court erred as a matter of law in granting defendant’s exception of no right of action challenging Assessor Williams’ standing as a bona fide representative of the Board of Assessors, an affected tax-recipient body.
Third Assignment of Error
Assessor Williams also asserts that the trial court erred as a matter of law in failing to sustain Assessor Williams’ contention that the Tax Commission’s legislatively authorized review of any assessor or board of review’s determination of property values for purposes of ad valorem taxes was unconstitutional. Discussion of the aforementioned assignments of errors pre-termits our discussion as to the constitutionality of the Tax Commission’s authority to review the property values assessed by an assessor or any board of review’s determination for the purposes of dd valorem taxes.
Fourth Assignment of Error
Assessor Williams’ assertion that the trial court erred in. holding that the statutory procedure specified in La. R.S. 47:1998, permitting appeals to the Tax Commission and appeals from decisions of the Tax Commission to the district court, is unconstitutional for failure to provide notice. Assessor Williams avers that only the assessor of the district in which the subject property is located and the City of New Orleans receive notice of the Tax Commission’s decisions. Assessor Williams further asserts that despite the provision of La. R.S.. 47:1998 A(l)(a), no affected tax-recipient body other than the City receives notice of'the decision. However, defendants Belle of Orleans and the Tax Commission aver that notice ^received by the assessor, in his capacity as assessor, constitutes notice, to the Board of - Assessors, the affected tax-recipient body. The Fourteenth Amendment to the United States Constitution, in addition to Louisiana Constitution Article I § 2, provide that the essential elements of due process are notice and opportunity to respond. DeLarge v. Department of Fi
CONCLUSION
For the foregoing reasons we reverse the trial court in granting defendant’s, Belle of Orleans, peremptory exception of no right of action. We affirm the trial court in finding that Louisiana Revised Statute Title 47 constitutional and remand to the trial court for further proceedings.
REVERSED IN PART; AFFIRMED IN PART; REMANDED
Notes
. The Fourth Circuit Court of Appeal, by vote en banc, overrules our holding in Johnson v. Louisiana Tax Commission, 2002-0930 (La. App. 4 Cir. 9/25/02),