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

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

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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

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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

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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

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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.

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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.

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