Judgment rendered August 9, 2022. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,898-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
ANGELICA MILLICAN Plaintiff-Appellee
Versus
LASHONDRA ELAINE RUSSELL Defendant-Appellant
Appealed from the Second Judicial District Court for the Parish of Bienville, Louisiana Trial Court No. 46106
Honorable Charles Glenn Fallin, Judge
LAW OFFICE OF IVAN J. DAIGS Counsel for Appellant By: Ivan Jerome Daigs
LAW OFFICE OF CHRIS L. BOWMAN Counsel for Appellee By: Chris Lane Bowman Colby L. Bowman
Before PITMAN, COX, and HUNTER, JJ.
HUNTER, J., concurs with written reasons. COX, J.
LaShondra Elaine Russell appeals the judgment of the trial court
disqualifying her as a candidate for the office of mayor of the City of
Arcadia, Louisiana. For the following reasons, we affirm.
FACTS
Appellant LaShondra Elaine Russell (“Russell”) qualified to run for
the office of mayor of Arcadia in the primary election to be held on
November 8, 2022.1 On July 26, 2022, Angelica Millican (“Millican”) filed
a petition in district court objecting to the candidacy of Russell on the
grounds that Russell had not been a resident of or domiciled in the city limits
of Arcadia for at least a year prior to qualifying to run for office there.
Russell answered the petition on July 29, 2022. Russell listed her address as
1120 Jonesboro Road, Arcadia, Louisiana, where she claimed she had lived
since January 1, 2021. It is this address which forms the basis for the
dispute at hand. The matter was tried on August 1, 2022. 2 Five witnesses
testified and eight exhibits were introduced into evidence.
In support of her claim, Millican called Russell to testify at trial.
Russell stated that after living in various places upon her graduation from
college in 2011, she returned to Arcadia in 2019 and stayed with her
grandmother, Dottie Jefferson, at 2910 Ivy Street, inside the City limits of
Arcadia. Jefferson died in February of 2022.3 Russell was unable to provide
1 Qualifying in Louisiana for the November 8, 2022, election was held July 20-22, 2022.
2 Although Russell moved to back to Arcadia in 2019, she makes no claim that she was a resident of or domiciled in Arcadia at any other address prior to that time. 3 Russell testified that she “went back and forth” between her grandmother’s house and 1120 Jonesboro Road where all of her clothes remained and she intended and exact dates for the time she lived outside of Arcadia and failed to bring her
driver’s license to court, although she testified that the address on her license
was 1120 Jonesboro Road. Russell also admitted that on April 29, 2022, she
changed her voter registration address to 1120 Jonesboro Road. Russell
identified P-1 and P-2 as her voter registration records from 2002 and April
29, 2022. Russell explained that the address on her previous voter
registration was 494 Hidden Acre Road, her parents’ address located outside
of the city limits of Arcadia. Russell could not remember the last time she
lived at her parents’ address but conceded that she had never registered to
vote in any other place until 2022. Russell testified that she got an Arcadia
P.O. Box on February 6, 2019, when she moved back to Arcadia with the
intent to return there. Russell obtained her P.O. Box to receive “other stuff”
in it, but still kept her mailing address at her mother’s house. Russell
identified D-2 as her “P.O. box papers.” Russell conceded that her P.O. Box
had “lapsed” in July of 2021 but insisted that it otherwise remained open
until the time of trial.
Russell testified that she “switched” her water service into her name at
1120 Jonesboro Road on December 8, 2021, and identified P-3 (introduced
into evidence without objection) as the documents relating to that change in
service. Russell also conceded that she had the electricity service placed in
her name at the Jonesboro Road address on December 2, 2021 (P-4).
O’Landis Millican (“Mayor Millican”) testified that he is the spouse
of the plaintiff in this matter and the current Mayor of Arcadia. Mayor
Millican testified that he had knowledge that Russell did not move into 1120
wanted to live. Russell testified that she slept at her grandmother’s house, but would “always go home” to the Jonesboro Road address. 2 Jonesboro Road until December of 2021. Mayor Millican recalled that when
Russell returned to the area from Texas, she “stayed in Hidden Acres” which
was “north of town, outside the city limits of Arcadia.” Mayor Millican
explained that he had personally visited with Dottie Jefferson at her 2910
Ivy Street residence and that Ms. Jefferson told him she stayed alone.
Mayor Millican stated that he was familiar with the water records of Arcadia
because as mayor, he was ultimately in charge of supervising all employees
of the town of Arcadia, including the water and sewer department. Mayor
Millican would personally receive the water records and oversaw the day to
day operations of Arcadia. Mayor Millican identified P-3 as being a copy of
the December 8, 2021, “deposit slip,” showing the deposit paid by Russell to
begin water service in her name at 1120 Jonesboro Road.
On cross-examination, Mayor Millican testified that from his
understanding no one lived at 1120 Jonesboro Road prior to Russell because
in December the “landlord” or owner of the property, whose name he could
not recall, “came in the city hall and said she was about to rent it out to
Lashondra Russell.” Mayor Millican admitted that there was water service
at 1120 Jonesboro Road prior to it being placed in Russell’s name, but
testified that “it wasn’t much usage at that address,” based upon “our water
usage report.” Mayor Millican stated that the owner of the property paid the
bill prior to Russell because the water bill was in their name.
Mayor Millican also testified that “our average water customer uses
1,000 gallons a month, 1,000 to 3,000 gallons a month of water,” and that
the minimum water charge was $21 whether or not a customer used any
water. Mayor Millican further stated that this minimal amount was recently
3 changed to $30.4 Russell objected to Mayor Millican’s testimony regarding
the average monthly usage on grounds that as mayor he was not qualified to
testify about this fact. Millican argued that Mayor Millican was “over the
water department” as well as the day-to-day operations of Arcadia and based
upon his experience, had knowledge of the household average usage of
water in the town. The trial court overruled Russell’s objection to Mayor
Millican’s testimony.5
On rebuttal, Mayor Millican also identified P-7 (introduced into
evidence without objection) as a copy of the “water history” of 1120
Jonesboro Road from September of 2020 through December 2, 2021. Mayor
Millican was able to confirm that prior to December of 2021, the water bill
was in Rosie Gipson’s name which was found “at the top on the customer
water history” of P-7. From his review of P-7, Mayor Millican also testified
that in January of 2021, the water usage at 1120 Jonesboro Road was 20
gallons. He further testified that in the remaining months of 2021, the water
usage was as follows: February-20 gallons, March-2 gallons, April-108
gallons, May-10 gallons, June-10 gallons, July-15 gallons, August-5,543
gallons, September-4 gallons, October-14 gallons, and November-4 gallons.
On cross-examination, Mayor Millican testified that he came up with
the average monthly gallon usage based upon information obtained from the
Louisiana Rural Water Association which had “teamed up with our certified
level four operator,” and performed average collections on residential usage
4 Mayor Millican identified P-6, as a copy of the new city ordinance which changed the monthly rate schedule for minimum water usage.
5 In her testimony, Angelica Millican testified that she lived and was registered to vote inside the city limits of Arcadia, and had filed the challenge to Russell’s candidacy. Millican also testified that she traveled daily on Jonesboro Road and did not see anyone living at 1120 Jonesboro Road prior to December of 2021. 4 within the city limits of Arcadia. Mayor Millican also testified that he went
to “class every year” but was not a certified operator. Mayor Millican stated
that he did not “think you could survive off forty gallons of water,” and that
he probably drank that amount in a month. Mayor Millican further testified
that the July water usage of 5,543 gallons resulted from a major water leak
because he had never seen a “jump like that from 15 gallons to 5,000 gallons
within a month.”
Eddie Holmes, the Bienville Parish Clerk of Court, identified P-5 as a
certified copy of a judgment of possession from the “Succession of Rosie
Marie Gipson” who died on March 21, 2020. The judgment recognized
Trudy Clark as the universal legatee of Ms. Gipson on November 16, 2021,
and sent Clark into possession of Gipson’s property which included the 1120
Jonesboro Road address.
In rebuttal to Millican’s case, Russell offered the following additional
testimony. Russell conceded that when she moved into the 1120 Jonesboro
Road address in January of 2021, the utilities were in the name of Rosie
Gipson, a friend of the family Russell knew for quite a while. Russell rented
the property from Trudy Clark, who did not live in the home with Gipson,
but cared for her weekly. According to Russell, Clark “wanted someone to
be in the home and I agreed to stay there.” Russell testified that she met
Clark at Gipson’s funeral and that Clark “just kept trying to lease the
property and when she got ready to lease it, she let me know.” Russell
testified that the utilities were never in Clark’s name and that she “switched”
the utilities in her name in December of 2021. Before that time, Russell paid
Clark for the utilities and Clark would then pay the utility bills. Russell
testified that she did not put the water services into her name until December 5 of 2021, when she was “instructed by Ms. Trudy that” she “needed to have it
changed over” or she would incur a higher fee for the water bill. Russell
also changed the “light bill” into her name in December of 2021 for that
same reason.
When questioned about the specific water usage at the home, Russell
claimed that in August of 2021, she lived at the Jonesboro Road address.
During that month, Russell was not sure if she took a shower there or would
have used more than four gallons of water. Russell could not say whether
she flushed the toilet or took a bath in September of 2021 to use more than
fourteen gallons of water. Russell offered only that “all my water bill is
always the minimal usage.”
Russell identified D-1 as a “copy” of her lease agreement on the 1120
Jonesboro Road home, between her and an individual named “Tommie
Clark.” Although D-1 was never entered into evidence, Russell identified
the document as the lease agreement that she purportedly signed with Trudy
Clark on January 21, 2021.6
On re-direct examination, Russell would only admit that in July of
2021, the P.O. Box had “lapsed,” but she insisted that it had been open from
2019 through 2022.
Felicia Russell, Russell’s mother, testified that she saw her daughter
daily. She explained that Rosie Gipson was her aunt and that Trudy Clark
was Gipson’s sister. Felicia Russell recalled that Gipson died sometime in
2019 or 2020 and lived at 1120 Jonesboro Highway. She confirmed that
6 Millican objected to the introduction of the lease into evidence without the testimony of Trudy Clark. The trial court ruled that Russell could “testify that she signed it” but did not allow the lease to be introduced into evidence without the testimony of Clark because the document was not notarized or witnessed. No proffer of the document was made and Russell does not challenge that ruling on appeal. 6 Trudy Clark took care of Ms. Gipson and that Russell knew Clark from
“seeing her there visiting Rose.” Felicia Russell testified that Russell had
been at 1120 Jonesboro Highway for “maybe a year and [a] half,” because
she lives in Arcadia too and “stayed [at 1120 Jonesboro Road]” for six
months after December of 2021, while repairs were done to her own home.
Felicia Russell knew that Clark and Russell had an agreement about “the
house” which is in the city limits.
Upon completion of the presentation of evidence and testimony, the
trial court ruled as follows:
I’ve listened to the testimony and evidence presented. Mrs. Russell, the defendant in this matter, was the first one to be called as a witness. I was, um, disturbed by the fact that she couldn’t remember certain days. For example, she couldn’t remember when she graduated from college and she finally did realize it was 2011. I mean, I can remember I graduated high school, the year, when I graduated from Tech, when I graduated from law school and I’m a lot older that Ms. Russell is. So, -- and then she couldn’t when she, said when she left Dallas, when she arrived in Dallas. She said--or where did you live in Dallas--well, Dallas is big. Well, I know it’s big but between 2011 and 2019 or 20, you’d remember some place or what part of Dallas you actually lived in. She couldn’t remember when she went to Canada. She said about six months and she couldn’t remember when she got back and . . . I was just . . . that disturbs me that she seemed to be very evasive about where she lived during that period of time. Also, she says that, um, she changed her voting registration--or it came out she changed her voting registration--April 29, 2022. Her voting registration, prior to that, it was in Hidden Acres. We asked about or she was questioned about her driver’s license, what the address was on her driver’s license. She said she didn’t bring her driver’s license with her. Uh, she says that, um. But she drove her[e] today. If she lives on the Jonesboro Road, we had many breaks. She could have gone back and got her driver’s license, to show what the driver’s license was. ....
Um, she--the controversy over the lease agreement with Trudy Clark. Trudy Clark was not called as a witness, um, to say that she definitely signed the lease, that it was a lease agreement that they both signed. I noticed on the lease agreement--that was not entered into evidence, but I asked to see it. When I 7 examined it, it was not a--you don’t have to have it notarized and it doesn’t have to be witnesses but it would be a better document if it was notarized and witnesses. Um, it was not filed of record. Not that that makes it any less valid, but it would be purport to show that, you know if it was it would be self-proving, if that was the case, if she--it was notarized before a notary and two witnesses. Again, she did not come to testify about, uh, whether that’s her signature or that she did in fact have an agreement with the defendant. Um, Mayor Millican testified about the new ordinance regarding the um, average water usage. He gave the water history of this particular place, which was very . . . it was not hardly any water use until, um December of 2021. Um, all those matters indicate to me that she was not living at the house at the time that--until December of 2021, which would not make her a resident of the town within the one-year period prior to qualifying. So, therefore, that evidence and that testimony, I’ll find that she is disqualified to run for the mayor of Arcadia.
On August 2, 2022, the trial court signed a written judgment
disqualifying Russell as a candidate for the office of mayor of Arcadia.
Russell timely appealed and the record was lodged with this Court on
Friday, August 5, 2022. This matter has been resolved by this Court in strict
compliance with La. R.S. 18:1409.
DISCUSSION
On appeal, Russell argues that the trial court’s determination that she
did not meet the residency and domicile qualification for mayor of Arcadia
was clearly wrong. Russell maintains that the evidence was sufficient to
show that she had established a domicile in Arcadia on January 1, 2021.
Russell also argues that the water records should not be admissible because
Mayor Millican was not the custodian of the records. In brief, appellee
Millican seeks frivolous appeal damages.
Law
The qualifications for mayor are set forth in La. R.S. 33:384, which
provides the following:
8 The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.
When the qualifications for an office include a length of domicile
requirement, the candidate shall meet that qualification notwithstanding any
other provision of law to the contrary. La. R.S. 18:451; Thebeau v. Smith,
49,665 (La. App. 2 Cir. 9/8/14), 148 So. 3d 233; Morton v. Hicks, 46,991
(La. App. 2 Cir. 9/28/11), 74 So. 3d 268, writ denied, 2011-2140 (La.
9/30/11), 71 So. 3d 297. A qualified elector may bring an action objecting
to the candidacy of a person who qualified as a candidate in a primary
election for an office in which the plaintiff is qualified to vote. La. R.S.
18:1401(A). An action objecting to the candidacy of a person who qualified
as a candidate in a primary election shall be based on specific grounds which
may include that the defendant does not meet the qualifications for the office
he seeks in the primary election. See La. R.S. 18:492.
Because election laws must be interpreted to give the electorate the
widest possible choice of candidates, a person objecting to candidacy bears
the burden of proving that the candidate is disqualified. Landiak v.
Richmond, 2005-0758 (La. 3/24/05), 899 So. 2d 535; Russell v. Goldsby,
2000-2595 (La. 9 /22/00), 780 So. 2d 1048. It follows that, when a
particular domicile is required for candidacy, the burden of showing lack of
domicile rests on the party objecting to the candidacy. Landiak v.
Richmond, supra. Further, a court determining whether the person objecting
to candidacy has carried his burden of proof must liberally construe the laws
governing the conduct of elections as to promote rather than defeat
candidacy. Any doubt concerning the qualifications of a candidate should
9 be resolved in favor of allowing the candidate to run for public office. Id.
Although a plaintiff challenging a candidate’s qualifications bears the
burden of proving that the candidate fails to meet the requirements, once the
party bearing the burden of proof has established a prima facie case, the
burden shifts to the opposing party to present sufficient evidence to
overcome the other party’s prima facie case. Thebeau v. Smith, supra.
La. R.S. 18:451, relative to qualifications of candidates, specifically
requires that when the qualifications for an office include a residency or
domicile requirement, a candidate shall meet the established length of
residency or domicile. As is evident from the use of the word “shall” in the
above statute, the requirement is mandatory. Landiak v. Richmond, supra.
The terms “residence” and “domicile” are legal terms that are not
synonymous. A person can have several residences, but only one domicile.
A person’s domicile is the place of his habitual residence. La. C.C. art. 38.
According to La. C.C. art. 44, domicile is maintained until acquisition of a
new domicile. Ultimately, domicile is an issue of fact that must be
determined on a case-by-case basis. Landiak v. Richmond, supra. Louisiana
case law has traditionally held that domicile consists of two elements,
residence and intent to remain. Determination of a party’s intent to change
his or her domicile must be based on the actual state of the facts, not simply
on what the person believes them to be. Id. Proof of one’s intent to
establish or change domicile depends on the circumstances. Thebeau v.
Smith, supra.
Since domicile is generally defined as residence plus intent to remain,
a party’s uncontroverted testimony regarding his intent may be sufficient to
establish domicile, in the absence of any documentary or other objective 10 evidence to the contrary. However, when documentary or other objective
evidence casts doubt on a person’s statements regarding intent, it is
incumbent on courts to weigh the evidence presented in order to determine
domicile in fact. Otherwise, the legal concept of domicile is meaningless
and every person would be considered legally domiciled wherever he says
he is domiciled. Landiak v. Richmond, supra. Some of the types of
documentary evidence commonly considered by courts to determine
domicile in fact include such things as voter registration, homestead
exemptions, vehicle registration records, driver’s license address, statements
in notarial acts, and evidence that most of the person’s property is housed at
that location. Obviously, the more of these items presented by a party
opposing candidacy in a given case to show lack of domicile in the district,
the more difficult it will be for the candidate to overcome the plaintiff’s
evidence. Landiak v. Richmond, supra.
The district court’s factual findings regarding domicile and residence
are subject to manifest error review. In order to reverse a trial court’s
determination of a fact, an appellate court must review the record in its
entirety and find that a reasonable factual basis does not exist for the finding
and that the record establishes that the fact finder is clearly wrong or
manifestly erroneous. Reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review where conflict exists
in the testimony. Thebeau v. Smith, supra.
Analysis
After complete review of the record in this matter, we discern no
manifest error in the trial court’s disqualification of Russell. We find the
evidence and testimony presented by Millican sufficient to establish a prima 11 facie case that Russell should be disqualified. That evidence included
documentation showing that Russell did not change her voter registration to
Arcadia until April 29, 2022, or establish water and electricity service in her
name at the 1120 Jonesboro Road residence until December of 2021. The
evidence also shows that Clark did not become owner of the property in
question until November 16, 2021, and therefore would not have arguably
been legally able to rent the property to Russell until after that time. Of
course, no testimony from Clark was presented at trial. The testimony of
Mayor Millican regarding his conversation with the “owner of the home” at
1120 Jonesboro Road in December of 2021, corroborates the fact that
Russell did not begin renting the home from Clark until December of 2021.
The 2021 water records of 1120 Jonesboro Road also supplied compelling
evidence to support Millican’s position. Those records showed overall token
water usage throughout 2021, the year that Russell claimed to have lived in
the house. Russell’s challenge to the admissibility of these water records on
appeal is without merit. A close reading of the record before this Court
shows that Russell actually lodged no objection to the introduction of P-7
into evidence. Rather, Russell objected to Mayor Millican’s testimony
regarding monthly average water usage. Even so, one method of
authenticating documents is through the testimony of a witness with
knowledge of what the document is, where it comes from, and how it is kept.
La. C.E. art. 901 (B)(1); State v. Fontenot,618 So. 2d 915, (La. App. 1 Cir.
1993), writ denied, 623 So. 2d 1332 (1993). Here, Mayor Millican twice
testified that as mayor of Arcadia, he was familiar with the water records as
part of his responsibilities as mayor and was in fact in charge of the
employees of the water department and personally received the water 12 records. This testimony satisfies the constraints of La. C.E. 901.
Additionally, this Court has held that a lay witness can give opinion
testimony based on his training, investigation, perception of the scene, and
observation of physical evidence. Sealy v. Brown, 53,541 (La. App. 2 Cir.
2/4/20), 291 So. 3d 290, 304, writ denied, 2020-00226 (La. 2/7/20), 292 So.
3d 60.
Otherwise Russell’s case in rebuttal consisted mainly of her own self-
serving testimony, which the trial court rejected, noting her failure to bring
her driver’s license to court, failure to admit the lease in question into
evidence, and inability to recall relevant dates at issue. Russell’s sole
witness provided no persuasive testimony, and her documentary evidence
regarding the P.O. Box provided insignificant proof of where she actually
resided or was domiciled. For these reasons, we find that Russell has failed
to present sufficient evidence to overcome Millican’s prima facie case. The
testimony adduced at the hearing, coupled with the documentary evidence,
clearly supports the ruling made below.
Frivolous Appeal Damages
In brief to this Court, appellee Millican has made a request for
frivolous appeal damages with attorney fees. Damages for frivolous appeal
are allowed only when it is obvious that the appeal was taken solely for
delay, that the appeal fails to raise a serious legal question, or that counsel is
not sincere in the view of the law he advocates, even though the court is of
the opinion that such view is not meritorious. Sellar v. Nance, 54,617 (La.
App. 2 Cir. 3/1/22), 336 So. 3d 103. The proper procedure for an appellee to
request frivolous appeal damages is to file either an answer to the appeal or a
13 cross appeal. La. C.C.P. art. 2133; Doe v. Lewis, 2020-0320 (La. App. 4 Cir.
12/30/20), 312 So. 3d 1165; Wied v. TRCM, LLC, 30,106 (La. App. 2 Cir.
7/24/97), 698 So. 2d 685. Since a brief constitutes neither, an appellee
cannot recover frivolous appeal damages if the damages are first requested
in brief. Because she did not separately appeal or answer the appeal,
Millican is not entitled to frivolous appeal damages.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Appellee Millican’s request for frivolous appeal damages is denied. Costs
of this appeal are assessed to Russell.
AFFIRMED; FRIVOLOUS APPEAL DAMAGES DENIED.
14 HUNTER, J., concurring.
After reviewing this record, I concur in affirming the judgment
disqualifying the candidacy of LaShondra Russell.
A person objecting to candidacy bears the burden of proving that the
candidate is disqualified. Nocito v. Bussey, 2020-0986 (La. 8/15/20), 300
So. 3d 862. Once the party objecting to a candidacy has established a prima
facie case the candidate is disqualified, the burden of proof shifts to the party
opposing the disqualification to rebut the evidentiary showing. Sealy v.
Brown, 53,541 (La. App. 2 Cir. 2/4/20), 291 So. 3d 290. Any doubt as to the
qualifications of a candidate should be resolved in favor of permitting the
candidate to run for public office. Cleveland v. Williams, 49,64 (La. App. 2
Cir. 9/8/14), 148 So. 3d 229.
In this case, the petitioner presented evidence of minimal water usage
at the 1120 Jonesboro Road address indicating defendant did not actually
reside at the address. In light of Mayor Millican’s role as the chief
administrative officer of the city, the trial court did not err in allowing the
mayor to testify the water usage reflected in the city’s records was less than
the average use of inhabited dwellings in Arcadia. Based on the testimony
and documentary evidence presented, the petitioner satisfied her burden of
proving a prima facie case defendant is disqualified, thereby shifting the
burden to defendant to rebut the petitioner’s proof.
In response, defendant was unable to provide a persuasive explanation
as to why the water usage was so low at the address or why she had changed
her voter registration only a few months prior to the qualifying period.
Thus, even giving defendant every benefit of the doubt regarding her
qualifications as a candidate, defendant failed to produce sufficient evidence 1 to rebut the petitioner’s evidentiary showing defendant had not resided at the
Jonesboro Road address for the requisite length of time.
Consequently, I must conclude the trial court did not err in finding
defendant is disqualified as a candidate for mayor of Arcadia.