Bobby W. Edmiston, in his Official Capacity as Bossier Parish Assessor v. Louisiana Riverboat Gaming Partnership d/b/a Diamond Jacks Casino & Resort and the Louisiana Tax Commission
Also decided on this docket: La. Ct. App. 2d Cir., February 19, 2020; La. Ct. App. 2d Cir., September 9, 2019
Bobby W. Edmiston, in his Official Capacity as Bossier Parish Assessor v. Louisiana Riverboat Gaming Partnership d/b/a Diamond Jacks Casino & Resort and the Louisiana Tax Commission, No. 52,948-CA (La. Ct. App. 2d Cir. Mar. 11, 2020).
Opinion text
Judge Moore’s Dissent, filed
March 11, 2020, to follow original opinion
rendered September 9, 2019, and as affirmed
on rehearing February 19, 2020.
No. 52,948-CA
ON REHEARING
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
BOBBY W. EDMISTON, IN HIS Plaintiff-Appellant
OFFICIAL CAPACITY AS
BOSSIER PARISH ASSESSOR
versus
LOUISIANA RIVERBOAT Defendants-Appellees
GAMING PARTNERSHIP D/B/A
DIAMOND JACKS CASINO &
RESORT AND THE LOUISIANA
TAX COMMISSION
*****
Originally Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 155,448
Honorable Edward Charles Jacobs, Judge
*****
WIENER, WEISS & MADISON Counsel for Appellant,
By: Reid A. Jones Bobby W. Edmiston in
-and- his official capacity as
BRIAN A. EDDINGTON Bossier Parish Assessor
KEAN MILLER LLP Counsel for Appellees,
By: Scott L. Zimmer Louisiana Riverboat
Gaming Partnership d/b/a
Diamond Jacks Casino &
Resort
FAIRCLOTH MELTON SOBEL Counsel for Appellee,
& BASH, LLC Louisiana Tax
By: Franklin “Drew” Hoffman Commission
-and-
ROBERT D. HOFFMAN, JR., APLC
*****
Before WILLIAMS, MOORE, PITMAN, STONE, and STEPHENS, JJ.
MOORE, J., dissents and assigns reasons.
MOORE, J., dissents.
I respectfully dissent from the denial of rehearing. The majority found
that there was “no articulated, precise computation justifying the 65%
obsolescence factor assigned by the LTC.” In point of fact, this issue was
fully litigated at an open meeting and appeal hearing, yielding a record that
fully supports the LTC’s finding.
The LTC received detailed testimony and extensive documentation
from Edwin Litolff, a credentialed professional real estate appraiser who
specializes in gaming and resort properties and was tendered and accepted as
an expert. He established, without contradiction, the manifold challenges
facing the DiamondJacks property, including a declining market, owing to
competition from Texas and Oklahoma; two bankruptcies; limited floor
space; poor maintenance, with nearly 30% of rooms unrentable; a negative
cash flow of $8 million since the second bankruptcy; earnings of a negative
$3.7 million in 2016; and adjusted gaming revenue down over 50% since
2006. Mr. Litolff may not have uttered the precise figure “65%,” but the
overwhelming weight of his economic data and market analysis fully
supports the LTC’s evaluation. Notably, this court’s majority opinion makes
only one fleeting reference to Mr. Litolff and completely disregards his
factual presentation.
By contrast, the LTC’s witness, Brian Eubanks, was a Staff Tax
Specialist III, who was not tendered as an expert and whose qualifications do
not appear on the record. Mr. Eubanks rendered two different opinions,
using an analytical framework that the LTC considered unreliable, though he
ultimately estimated a 30% obsolescence factor.
1
Viewing this record in its entirety, I would not say that the LTC was
arbitrary and capricious in adopting an obsolescence factor much closer to
Mr. Litolff’s expert opinion than to Mr. Eubanks’s. I would affirm the ruling
of the LTC and the district court, and grant the motion for rehearing.
2