Judgment rendered February 4, 2020.
No. 53,541-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
ARTHUR LEONARD SEALY, III Plaintiff-Appellee
it■ oex, Versus
JASON TREVOR BROWN Defendant-Appellant
5,DS Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 161,483
Honorable Charles A. Smith, Judge
DANIEL R. KEELE Counsel for Appellant JOHN C. DALTON GRIFFIN HENRY N. BROWN, JR.
H. LYN LAWRENCE, JR. Counsel for Appellee
Before MOORE, STONE, STEPHENS, McCALLUM, and TRAYLOR (Ad Hoc), JJ. STEPHENS, J.
This suit involves the disqualification of a candidate for the Bossier
Parish Republican Executive Committee, District 9, on the grounds that he
did not meet the residency requirement for the office. Jason Brown appeals
the ruling of the trial court disqualifying his candidacy in the April 4, 2020,
election. Appellee, Arthur Leonard Sealy, III, has filed an answer to the
appeal seeking to strike certain documents from the record. For the
following reasons, we affirm.
FACTS
On January 10, 2020, Brown filed a notice of candidacy for
membership on the Office of Bossier Parish Republican Executive
Committee, District 9. Brown listed his address as 2606 Village Lane,
Bossier City, Louisiana.' On January 17, 2020, in accordance with La. R.S.
18:491 and La. R.S. 14:1401, Sealy filed a petition objecting to the
candidacy of Brown on the grounds that he had not resided at 2606 Village
Lane, Bossier City, within the appropriate district, for more than six months
prior to the election. Brown answered the petition.
On January 17, 2020, an order set the matter for trial on January 22,
2020. However, at 8:43 a.m. on January 21, 2020, the trial court judge who
heard the matter signed a second order vacating that original order and set
the matter for January 21, 2020, at 9:30 a.m., pursuant to La. R.S.18:1409,
on the grounds that the original trial setting was untimely.' This precipitated
In August of 2019, Brown was disqualified from running for the office of Police Juror District 9 after failing to satisfy the domicile requirement for that position at the 2606 Village Lane address. See Gray v. Brown, 53,265 (La. App. 2 Cir. 8/27/19), 278 So. 3d 1104, writ denied, 19-0140 (La. 8/31/19), 277 So. 3d 1186.
2 Brown did not appear at the January 21, 2020, proceedings and an instanter attorney was appointed for him. Brown's filing of a special declinatory exception, peremptory exception of
no cause of action and peremption, and motion for nullity and to strike,
which were all denied by the trial court, and are discussed infra.
The matter was ultimately continued to January 24, 2020, at which
time Brown filed a motion in limine seeking to prohibit the introduction into
evidence the deposition of Michael Bayham, Secretary of the Louisiana
Republican State Central Committee, which had been taken on January 23,
2020. Bayham was not available for trial and Sealy sought to use his
testimony to introduce into evidence the bylaws of the Louisiana Republican
State Central Committee, which provide the residency requirement at issue.
Because Bayham's deposition was taken on January 23, 2020, Brown
objected to its introduction at trial on the grounds that he was not provided
notice of the deposition in accordance with La. R.S. 18:1411, and because it
was taken after the trial began. The trial court allowed the deposition to be
introduced into evidence.
Thereafter 14 witnesses testified and significant documentary
evidence was introduced. Brown moved for "directed verdict" after the
presentation of Sealy's case.' The trial court denied the motion finding that
Sealy had made a prima facie showing that Brown had not resided at the
Village Lane address. 4 After completion of the testimony, the trial court
took the matter under advisement.
3 In a civil action, the proper procedural vehicle was a motion for involuntary dismissal under La. C.C. P. art 1672(B).
4 It is not disputed that Sealy is a registered voter within the Bossier Parish Republican Executive Committee, District 9. 2 On January 28, 2020, the trial court issued a written judgment
disqualifying Brown from participating in the April 4, 2020, election for
failure to meet the residency requirements. This appeal ensued.
The trial court's cogent opinion thoroughly recounted and analyzed
the evidence as follows:
The Bossier City utility records reflect a relatively low but consistent level of water usage in the Spring and Summer of 2019. In October through December of 2019 the water usage levels drop considerably, and at time reflect no usage for stretches up to 19 days. Judy Price, a supervisor at the Bossier City Water Department, testified that the low level of water usage reflected throughout 2019 and 2020 at the 2606 Village Lane address was not "typical" of a two-person household.'
The question of residency, however, allows for reasonable explanations as to the low usage. That a person may have multiple residences necessarily creates the reasonable assumption that a person's utilities usage at one residence would inhibit or significantly decrease the usage at another residence. Despite this assumption, no water was used at 2606 Village Lane during the nighttime hours for almost three months beginning in early October 2019.
Considering this jurisprudence, the primary issue presented in this litigation involves Defendant's residency, specifically at 2606 Village Lane address. Defendant testified that he has lived 'off and on' at the 2606 Village Lane address since his father, Henry Brown purchased the home around 1980. Defendant also testified as to owning multiple properties in Shreveport, Caddo Parish, Louisiana, and that he has lived at these locations in some prior years leading up to this litigation and the present date. Nonetheless, Defendant adamantly maintained that he has always considered the 2606 Village Lane address as his residence. He is registered to vote in the precinct appropriate for the Village Lane address and has voted there through the years. His driver's license and selective service registration reflects 2606 Village Lane as his address. Numerous mortgage and banking statements prior to October 2019 to present list 2606 Village Lane as Brown's address. Until recently, the 2606 Village Lane home has been owned by Henry Brown. On December 20, 2019, Defendant executed a 'Cash Sale of Property' for the 2606 Village Lane address, thereby
5 Price testified from exhibit Sealy 11, a document showing hour-to-hour water usage. She also compared the water used at 2606 Village Lane in October-December of 2019 with another two-person residence and determined that this household utilized at least 3000 gallons per month. She confirmed 19 days of no water usage in October of 2019 and 18 days in both November and December, with otherwise minimal usage on the remaining days of those months. 3 purchasing the home from Henry Brown. He subsequently filed for homestead exemption on the 2606 Village Lane home on December 20, 2019.
Considering the relevant jurisprudence and evidence, the Court finds that Defendant has failed to present sufficient evidence that he was a resident of 2606 Village Lane, Bossier City, Louisiana for a period of at least six months prior to the election date of April 4, 2020. This determination is bolstered by this Court's evidentiary findings. First, no water was used during the night hours from October 3, 2019 to late December 2019. Second, Defendant's vehicle registration issued on October 1, 2019 was mailed to 2606 Village Lane, but reflected Brown as the owner as listed at 858 Prospect Street, Shreveport, Caddo Parish, Louisiana. Next, this Court finds Defendant's testimony to lack credibility. Specifically, Defendant's testimony indicated that he firmly believes that he lives at the Village Lane home.
He also testified that he spent nights at the Village Lane home, however, this claim is directly refuted by the water usage records previously mentioned.
Defendant produced certain records to Plaintiff demonstrating charges on certain credit cards. However, only the charges away from this area were shown. All other indications of charges had been redacted with the exception of a few local charges in late December 2019. This Court can only conclude that the redacted material would show charges in the Bossier/Caddo area. These charges would indicate that Jason Brown was in this area, but did not stay at the Village Lane address. With the burden shifted to the Defendant to prove residency, the totality of the evidence presented supports the conclusion that Defendant failed to meet his burden of proof, despite the reduced threshold relative to finding domicile.
The trial court's findings present a substantial review of the mostly
uncontested evidence presented at the hearing. Additional evidence
included several of Brown's notice of candidacy reports from early 2019
which listed the 2606 Village Lane address. Documentation from Brown's
wife, Melissa Albritton, included her voter registration from January 21,
2019, her driver's license, pay stubs, and various financial statements from
various months in 2019, all reflecting her address at 2606 Village Lane.
4 In his testimony, Brown identified several utility statements from the
Village Lane location which evidenced increased electrical use in July,
August and September of 2019, but decreased usage from October through
December of 2019. Brown claimed that he and his wife paid these bills,
although they remained in his father's name. Brown admitted that he did not
have any kind of cable or satellite service at the house. According to Brown,
he also submitted an invoice for payment of homeowners' association dues
for unit 2606 from October and November 2019.
Brown challenged Price's water usage conclusions. He explained the
zero water usage in the late months of 2019 by the fact that he and his wife
were out of town for events at that time of the year, as well as his out-of-
town work. Otherwise Brown argued that there was "clear and consistent
[water] usage" at 2606 Village Lane. Brown submitted several credit card
invoices reflecting activity from August 2019 through January 2020, in
support of his argument that he spent most of his time out of town. The
redacted invoices reflected usage "in South Louisiana," according to Brown
to show the extent of time he spent at his out-of-town job. Brown also
identified two "makeshift" calendars prepared by his wife, which purported
to document the couple's scheduled out-of-town activities in the months of
October, November, and December of 2019, along with attached
documentation in support thereof
Albritton testified that she did not do laundry at 2606 Village Lane
and sends her laundry out. She identified a few" receipts from the
laundromat that she uses. Albritton confirmed that she had paid the electric
bills for 2606 Village Lane since July of 2019, as well as the Bossier Parish
property taxes for 2019. Albritton identified and confirmed preparing the 5 above-noted calendars for the months of October, November, and December
of 2019. Albritton insisted that she used water at 2606 Village Lane in
October of 2019 and contested the zero water usage amount for that month. 6
Albritton identified photographs of her living room and kitchen at 2606
Village Lane, showing personal belongings. She testified that the
photographs were taken about a week before her testimony. She also
identified photographs of the pantry, upstairs bathroom, a closet with clothes
in it, and a guest bedroom. Albritton insisted that she was at the townhouse
"almost every day from July or late June 2019 through mid-October."
Brown's father, Henry N. Brown Jr., testified that his son and his wife
primarily reside at the Village Lane address.
Fred Shewmake, a former neighbor of 2606 Village Lane, testified
that since October of 2019, he had seen Brown and Albritton "come and go,"
and "spend the night the last few months." Shewmake had moved out of his
townhouse in November of 2019. Derrick Simmons testified that he helped
Brown move furniture into the townhouse in spring of 2018.
LAW
The qualifications for a member of a parish executive committee are
found La. R.S. 18:444, which in relevant parts provides as follows:
A. A member of a parish executive committee of a recognized political party shall meet the qualifications established by the rules and regulations of the state central committee of that recognized political party. The qualifications for membership on parish executive committees of a recognized political party shall be uniform throughout the state.
B. (1) Members of a parish executive committee of a recognized political party shall be elected every four years at
6 Sealy's counsel objected to the introduction of the calendars into evidence on the grounds that he had not received them and that they had been prepared "over the weekend." On cross-examination, Albritton admitted that she had prepared them "yesterday afternoon." 6 the same time as the presidential preference primary election. The term of office shall not extend beyond the time for which the member was elected. Notwithstanding this provision, members elected in 1991 shall serve until their successors are chosen.
(3) Candidates for membership on a parish executive committee of a recognized political party shall qualify for office pursuant to the provisions of Chapter 5 of this Title.
La. R.S. 18:451 provides for the qualification of candidates as
follows:
A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office. In the event that the qualifications for an office include a residency or domicile requirement, a candidate shall meet the established length of residency or domicile as of the date of qualifying, notwithstanding any other provision of law to the contrary. No person, whether or not currently registered as a voter with the registrar of voters, shall become a candidate if he is under an order of imprisonment for conviction of a felony.
This statute 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 statute, the requirement is mandatory. La. R.S.
1:3; Landiak v. Richmond, 05-0758 (La. 3/24/05), 899 So. 2d 535; State v.
Wilson, 53,262 (La. App. 2 Cir. 8/27/19), 278 So. 3d 1081, writ not cons.,
19-01396 (La. 8/30/19), 277 So. 3d 1185, recon. denied, 19-01396 (La.
8/31/19), 277 So. 3d 1186.
Article III, Section 1 of the Bylaws of the State Central Committee of
the Republican Party of Louisiana ("Bylaws") requires a member to meet the
following residential qualification:
7 To qualify to be elected as a Member, a candidate must: Be a resident and a registered Republican voter of the District from which he or she is a candidate for at least six months prior to election day; and qualify as required by law.'
Article XIII, Section I of the Bylaws, addressing Parish Executive
Committee Members, states:
In order to qualify and serve as a member of a Republican Parish Executive Committee, an individual must meet the qualifications set forth in Article III, Section I of these bylaws.
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, supra; Russell v. Goldsby, 00-2595 (La. 9/22/00), 780 So. 2d
1048. Once the party bearing the burden of proof in an objection to
candidacy case has established a prima facie case that the candidate is
disqualified, the burden shifts to the party opposing the disqualification to
rebut the showing. Dist Attorney v. DeJohn, 15-1478 (La. App. 1 Cir.
9/28/15), 182 So. 3d 188. See also analysis in Landiak v. Richmond, supra,
regarding a domicile challenge.
7The Bossier Parish Executive Committee apparently also requires a person seeking election to be a resident within the appropriate district for a period of at least six months prior to the date of the election. 8 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 so as to promote rather than defeat candidacy. Any
doubt concerning the qualifications of a candidate should be resolved in
favor of allowing the candidate to run for public office. Landiak v.
Richmond, supra.
It has long been held that the terms "residence" and "domicile" are
legal terms that are not synonymous. Landiak v. Richmond, supra; State v.
Wilson, supra. An individual's place of domicile is the place of his habitual
residence. La. C.C. art. 38. Further, a person can have two residences, but
only one domicile. La. C.C. art. 39. Accordingly, the jurisprudence reflects
that the term "resident" is not to be confused with the term "domicile." The
word "domicile" means "the principal domestic establishment. " Soileau v.
Bd. of Sup'rs, St Martin Par., 361 So. 2d 319 (La. App. 3 Cir. 1978).
On the other hand, a person may maintain more than one residence and the
fact that one is maintained for political purposes does not itself prevent the
residence from being actual and bona fide. Intent to maintain a residence is
an important factor, but intent alone does not establish a bona fide residence.
There must be actual, physical use or occupation of quarters for living
purposes before residence is established. Williamson v. Village of Baskin,
339 So. 2d 477 (La. App. 2 Cir. 1976), writ denied, 341 So. 2d 1126 (La.
1977); McClendon v. Bel, 00-2011 (La. App. 1 Cir. 9/7/00), 797 So. 2d 700;
Walsh v. Rogillio, 00-1995 (La. App. 1 Cir. 9/7/00), 768 So. 2d 653, writ
denied, 00-2610 (La. 9/12/00), 766 So. 2d 1288; Williford v. Grady, 96-1040
(La. App. 3 Cir. 8/5/96), 688 So. 2d 1072; Soileau, supra. Some of the types
of documentary evidence commonly considered by courts to determine 9 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. Gray v. Brown, supra. Water usage is also a valid
consideration. Id.
There is no minimal period required for the establishment of such a
residence. The intent to establish a residence, coupled with physical actions
denoting the acquisition of a residence, is sufficient. Walsh v. Rogillio,
supra; Butler v. Cantrell, 630 So. 2d 852 (La. App. 4 Cir. 1993), writ denied,
631 So. 2d 431 (La. 1994); Soileau, supra.
Courts must be cognizant of the realities of modern life, in which the
demands of a career and other factors often require people to spend a large
amount of time at different locations. Becker v. Dean, 2003-2493 (La.
9/18/03), 854 So. 2d 864; Russell v. Goldsby, supra; Dist. Attorney v.
DeJohn, supra.
Domicile and residency, for purposes of an election contest, present
issues of fact. The standard of review of findings of fact by the trial court is
the clearly wrong or manifest error standard. McClendon v. Bel, supra.
DISCUSSION
On appeal, Brown raises five assignments of error. He first contends
that the trial court violated his due process rights by vacating the original
order setting the matter for trial and issuing a new order resetting the trial
date only 45 minutes prior to the hearing. Brown next asserts that the trial
court erred in denying both his special declinatory and peremptory
exceptions. Brown contends that the trial court erred in admitting the
Bylaws into evidence because they are impermissible hearsay evidence. 10 Finally, Brown argues that the trial court erred in finding that he failed to
meet the residence requirement and in disqualifying him for the April 4,
2020, election.
Sealy argues that the trial court's ruling disqualifying Brown from
seeking the subject office is not manifestly erroneous. Sealy also asserts that
any procedural imperfections that occurred in observance of the stringent
time constraints accompanying an election suit were harmless en -or. Sealy
has also filed an answer and motion to strike, seeking to strike certain trial
testimony and redacted credit card invoices.
ANALYSIS
Assignment of Error No. One: The district court violated Brown's due process rights by vacating the January 17, 2020, order setting trial for January 22, 2020, and issuing a new order on January 21, 2020, setting trial for approximately 45 minutes after such order was issued.
Assignment of Error No. Two: The district court erred in denying Brown's special declinatory exception when the court did not have personal jurisdiction over Brown by virtue of its vacating the January 17, 2020 order, and by not serving Brown with the January 21, 2020, order prior to the beginning of proceedings on January 21, 2020.
Assignment of Error No. Three: The district court erred in denying Brown's peremptory exception because the trial on the merits did not begin prior to 10:00 a.m. on the fourth day after the filing of the petition as required by La. R.S. 18:1409(A).
La. R.S. 18:1409(A)(1) requires that trial start by 10:00 a.m. on the
fourth day after an objection to candidacy suit is filed. The instant suit was
filed on Friday, January 17, 2020. On that date, trial was set for Wednesday,
January 22, 2020. There is no dispute that Brown was served with that order
setting trial. Monday, January 20, 2020, was a holiday, Martin Luther King
Jr. Day. The record reflects that Judge Smith and his law clerk were in the
office on Monday, at which time they realized that the matter had been
improperly set for Wednesday, January 22, as that was the fifth day after suit 11 was filed. The record also reflects that notification of the parties was
attempted at that time; Brown's cell phone was called and, per the
instructions on his voicemail, a text message was sent notifying him of the
error and that trial would be reset to Tuesday, January 21, 2020.
The following morning, Tuesday, January 21, 2020, at 8:45 a.m., the
court issued an order vacating the January 17 order setting trial for
Wednesday the 22nd and issued an order resetting trial for 45 minutes later
that morning, at 9:30 a.m., in an effort to comply with the four-day time
frame of La. R.S. 18:1409(A). Neither Brown nor the clerk of court, his
agent for service of process under La. R.S. 18:1407, was served with said
order. The clerk of court did have actual notice thereof
Trial was called at 9:30 a.m., at which time the court appointed Sara
Giddens as curator ad hoc for Brown as per La. R.S. 18:1409(A)(2). Earlier
that morning, Dan Keele, counsel for Brown, fax-filed a "Peremptory
Exception," asserting no cause of action, peremption and nonjoinder of
parties. Pertinent to this appeal is the argument of peremption, Brown
asserted that the action was extinguished by passage of more than four days
required by statute. The court denied the exception in open court. One
witness, Mr. Sealy, was then called and sworn and provided his name and
address. No further testimony or evidence was taken and the matter was
recessed until Wednesday, January 22 (the date of the original setting).
On Wednesday, January 22, 2020, trial was called at 9:30 a.m. and all
parties were present. Attorney Keele appeared for Brown and Ms. Giddens
was relieved as curator ad hoc. After an in-chambers meeting, the court
stated on the record that the matter was again recessed until Friday, January
24, 2020, at 10:15 a.m. At this time, the court also stated on the record that 12 attorneys John Griffin and Henry Brown Jr. had enrolled as counsel for
Brown in limited capacities. Keele then noted his objection to the
commencement of trial on Tuesday and orally preserved all motions for
argument on Friday.
Also on Wednesday morning, Keele filed a "Motion for Nullity and
to Strike" asserting a denial of due process based on failure to serve Brown
with the Tuesday, January 21 order setting trial for 45 minutes later that
morning. Brown argued that any proceedings on Tuesday, January 21, 2020,
were void ab initio and any evidence adduced, action taken or decision by
the court should be stricken.
Keele further objected to a notice of deposition of Michael Bayham,
of which Keele allegedly received notice at "about 5:30 p.m." Tuesday
afternoon and which noticed the deposition for Thursday, January 23, at 1:00
p.m. Keele argued that the notice of deposition did not comply with the
statutory requirement of 48 hours' notice prior to trial unless the Friday
setting was an initial trial setting and not a recess or continuance of a prior
setting. In response, counsel for Sealy advised the court that the notice of
Bayham's deposition was filed at 9:43 a.m. Tuesday morning and that the
clerk of court, as agent for service for Brown, was aware and had notice in
accordance with the election code. Arguments were slated for Friday and
court closed.
On Friday, January 24, 2020, prior to trial, the court denied Brown's
special declinatory exception, explaining:
I — your declinatory exception was addressed, as I appreciate it, toward the actions that we took on Tuesday. The whole scenario for this is this matter was filed Friday, 4:15, something like that. It got set in error for Wednesday at 9:30. As I've stated before and I'll state it again I came in on Monday, it so 13 happened my law clerk came in on Monday and we just started talking about it and we started looking at it and we realized no, it needed to be set before 10 a.m. on Tuesday. We prepared an order, had it ready so that I could sign it on Tuesday morning and file it with the clerk. We advised Mr. Lawrence of this as well as Mr. Brown in accordance with the instructions on his — his phone, the phone number that was given which was leave him a text message. The text message said we were filing it and going to have a hearing at 9:30 that morning. Y'all are declining because he didn't get served. Okay. That's good, but your motion is going to be overruled.
Counsel for Brown objected on due process grounds and the court
again stated that the motion was denied.
Next, the court addressed Brown's "Peremptory Exception" and
"Motion for Nullity and to Strike." Counsel for Brown argued that the four-
day hearing requirement of the election code was not satisfied and that
Brown had suffered due process violations rendering the entirety of the
proceedings leading up to the Friday trial null and void. Counsel also
argued that the court was divested of personal jurisdiction over Brown when
it vacated the January 17, 2020, order originally setting the matter for
Wednesday, January 22, 2020, and signed an order resetting it for Tuesday,
January 21, 2020, without effecting personal service on Brown. The court
was not persuaded and denied the motion:
All right, this is how the Court looks at it, fourteen, -- Title 18:1409 Paragraph (A)(1), at the end — last sentence says the trial shall begin no later than 10 a.m. on the fourth day after suit was filed. The suit was filed on the 21st that meant — or, excuse me, on the 17 0' that meant it had to be started no later than 10 a.m. on the 21st. In error it was set by the Court on the 22" at 9:30. Okay. We fixed it. We tried to get notice to everyone, we weren't able to. So, in a manner that would be the least harmful to Mr. Brown because you're right, counsel, I want him to have his rights, I want him to be able to present his case, which fortunately he is able to, on the 21st, in a timely fashion, which then following Paragraph 2 of Subsection A which says if defendant does not appear on the date set for trial the court shall appoint an attorney at law to represent him by instanter appointment, which I did, I appointed Ms. Giddens. Then 14 knowing that Mr. Brown had been served with the original order and that he would, I believed, be there the next day I allowed Mr. Lawrence to ask two questions that he just stated, asked his client's name and address, then I immediately recessed the trial to come back the next date to ensure that there would be no prejudice whatsoever to Mr. Brown. I wanted him to be able to hear everything that was said and frankly I'm going to make Mr. Lawrence repeat those questions so Mr. Brown will be here to uh, hear everything. And once (sic) case that you cited you talk about the court stated that the defendant in that case lost his day in court. Mr. Brown has not and will not lose his day in court in front of this Court. He's going to get every opportunity he needs and requests that is within the law. Further just as an aside, Mr. Keele had filed some things prior to 9:30, we did fax to him a copy of the order so he would be aware of it. However, based on those things the Court denies your motion for Nullity and to Strike.
On appeal, Brown maintains that any and all proceedings prior to
Friday, January 24, 2020, are null and void because he was denied due
process as a result of the resetting of the trial and lack of service described
above. He further asserts that the Friday, January 24, 2020, proceeding was
untimely as it was not begun within the statutory four-day delay provided in
the election code, which is a mandatory time requirement. We disagree.
First, we conclude that there were no proceedings on Tuesday,
January 21, 2020, of which Brown could have conceivably been denied due
process. Trial was called, Sealy was sworn, stated his name and address,
and court was recessed. Due to errors that the trial court readily conceded,
the matter was ultimately heard three days later on Friday, January 24, 2020.
Judge Smith clearly indicated that Sealy would be required to state his name
and address again. We find no due process violations resulting from the lack
of formal service of the order resetting this matter to Tuesday, January 21,
2020.
Second, where errors or failures of the trial court or clerk's office
cause delays in proceeding in election suits, this court has found those 15 failures not attributable or imputable to the plaintiff when no prejudice to the
parties results. State v. Pearson, 41,812 (La. App. 2 Cir. 9/8/06), 939 So. 2d
568, writ denied, 06-2231 (La. 9/13/06), 936 So. 2d 1250, involved a district
attorney's challenge to a candidate for chief of police based on the
domiciliary requirement. All judges in the judicial district recused
themselves, and an ad hoc judge had to be appointed by the Louisiana
Supreme Court. The defendant filed a motion to dismiss the petition based
on failure to begin the trial within the four-day requirement of La. R.S.
18:1409, arguing that the requirement was mandatory. This Court disagreed
and applied the reasoning from Seoggins v. Jones, 442 So. 2d 1202 (La. App
2 Cir. 1983), writs denied, 444 So. 2d 113 (La. 1983), and 444 So. 2d 623
(La. 1984). In Scoggins, this Court found granting a motion to dismiss in
similar circumstances to be reversible error where a clerk of court failed to
timely file the record in the appellate court in an election contest case. This
court held that the duty to timely file the record in the appellate court was
that of the clerk of the district court and the failure of that official to do so
was not chargeable to the appellant. Furthermore, no prejudice to the
defendant was shown because of the failure. The same reasoning applies in
this case; the trial court erroneously set the matter for hearing one day late
and made every attempt, albeit short of personal service, to apprise the
parties of the error and the change in setting. We find that the court did
everything in its power to correct its error and ensure that Brown suffered no
prejudice from the resetting of the matter to Friday, January 24, 2020. The
spirit of the election code was not offended and there was no due process
violation to Brown. These assignments of error are without merit.
16 Assignment of Error No. Four: The District Court manifestly erred in admitting the Republican State Central Committee Bylaws into evidence because they are impermissible hearsay.
In this assignment of error, Brown complains that the trial court erred
in allowing the Bylaws to be admitted into evidence through the deposition
testimony of Bayham. Specifically, Brown contends that Bayham's
deposition was not taken in accordance with La. R.S. 18: 1411, which reads:
A party to an objection to candidacy, an action contesting the certification of a recall petition, or an election contest may take a deposition relative to the facts specified or to be specified in the petition at any time before the trial, upon giving the other party at least forty-eight hours' notice of the time and place the deposition is to be taken. The deposition may be taken before any officer authorized to administer oaths, and the attendance of witnesses and the production of documentary evidence of any kind may be compelled by a court.
The record shows that on January 21, 2020, at 9:28 a.m., Sealy's
counsel E-filed a request for a subpoena to depose Bayham on January 23,
2020, at 1:00 p.m., with the Bossier Parish Clerk of Court's Office. Sealy
also gave written notice to Brown of the scheduled deposition at 5:33 p.m.
on January 21, 2020. At the January 22, 2020, proceedings, Brown's
counsel objected to the deposition notice as being untimely under La. R.S.
18:1411. Sealy's counsel argued that he was only required to notify the
Bossier Parish Clerk of Court as agent for service of process. The trial court
continued the proceedings until Friday January 24, 2020. Bayham was
deposed as scheduled on January 23, 2020. In his deposition, Bayham stated
that he would be unavailable for trial and attempted to authenticate the
Bylaws for introduction into evidence.
Prior to the January 24, 2020, proceedings Brown filed a motion in
limine to have the deposition excluded, which the trial court referred to the
merits. Immediately thereafter, Sealy attempted to introduce the deposition 17 and the accompanying Bylaws into evidence. Brown argued that the
deposition should be excluded because he was not given written notice 48
hours prior to the deposition and the deposition was taken after trial began in
violation of La. R.S. 18:1411. Brown argued that without the deposition
testimony, the Bylaws were inadmissible hearsay evidence. Brown also
asserted that Bayham had not been shown to be the custodian of the records
and thus was not qualified to authenticate the Bylaws.
Thereafter, a representative of the Bossier Parish Clerk of Court's
Office testified that the Bossier Parish Clerk of Court's Office had received
the e-filing at 9:28 on January 21, 2020.
Regarding the issue of timeliness, the trial court found that:
Based upon the expedited nature of these proceedings, based on the timeframes that were involved, based upon the notice that was given to the available parties and people at the time notice was given that those items are admissible.
After reading the deposition, the trial court also ruled that as the
Secretary of the Louisiana Republican State Central Committee, Bayham
was qualified to identify the documents and allowed them into evidence.
On appeal, Brown contends that the trial court erred in finding no
violation of the requirements of La. R.S. 18:1411 and in finding Bayham
qualified to authenticate the Bylaws.
We first find no abuse of discretion in the trial court's determination
that the process utilized by Sealy in obtaining Bayham's deposition,
including the notice provided to both the Bossier Parish Clerk of Court and
Brown, satisfied the requirements of La. R.S. 14:1411. The trial of this
matter was continued until January 24, 2020, and the deposition was taken
on January 23, 2020. Pursuant to La. R.S. 18:1407, upon filing of his notice
18 of candidacy, Brown appointed the Bossier Parish Clerk of Court as his
agent for service of process in the action objecting to his candidacy. Here,
the evidence shows that the Bossier Parish Clerk of Court was provided
notice of the deposition more than 48 hours prior to the deposition date.
Further, Brown received written notice approximately 43 hours prior to that
time and was able to attend the deposition. Considering the expedited nature
of these proceedings, we find adequate compliance with La. R.S. 18:1411.
We also find that Bayham was a qualified witness to authenticate the
Bylaws. Achary Elec. Contractors, L.L.C. v. SimplexGrinnell LP, 15-542
(La. App. 5 Cir. 1/27/16), 185 So. 3d 888. Any deficiency in his testimony
did not ultimately prejudice Brown. Thus, we find no reversible error in the
trial court's consideration of the Bylaws.
Assignment of Error No. Five: The Court manifestly erred in finding Jason Brown does not reside at 2606 Village Lane.
In this final assignment of error, Brown contends that the trial court
improperly relied upon the opinion testimony of Price, who was not
qualified as an expert. Accordingly, Brown argues that the trial court
should have granted his directed verdict at the close of Sealy's case. Citing
various cases, Brown also argues that the trial court erred by failing to
consider and apply the presumption in favor of candidacy. Finally, Brown
argues that the trial court erred in failing to consider the overwhelming
affirmative testimony and corroborative exhibits, rather than circumstantial
evidence, to determine the issue of his residency.
In this matter, there is very little dispute that Brown and his wife
receive most, if not all, of their mail at 2606 Village Lane. The primary
question before this Court therefore is whether Brown has established actual,
19 physical use or occupation of the subject townhouse for living purposes,
sufficient to satisfy the residency requirement. Despite Brown's
protestations regarding any opinion testimony given by Price, a lay witness
can give opinion testimony based on his training, investigation, perception
of the scene, and observation of physical evidence. Temple v. State ex rel.
Dep 't. of Transp. & Dev., 02-1977 (La. App. 1 Cir. 6/27/03), 858 So. 2d
569, writ denied, 03-2116 (La. 11/7/03), 857 So. 2d 501; Wingfield v. State,
ex rel. Dep't. of Transp. & Dev., 01-2668 (La. App. 1 Cir. 11/8/02), 835 So.
2d 785, writs denied, 03-0313, 0339, 0349 (La. 5/30/03), 845 So. 2d 1059,
1060, cert denied, 540 U.S. 950, 124 S. Ct. 419, 157 L. Ed. 2d 282 (2003).
Here, Price described her extensive experience with water billing. As
such, her opinion testimony regarding a comparison of water usage to other
two-person households was proper. Otherwise her testimony regarding the
actual amount of water usage was factual and largely uncontested by Brown.
Actual water usage is proper evidence for establishing or refuting residency.
If accepted, Price's testimony was sufficient to establish that a drop in water
usage occurred during the months of October through December of 2019,
that included a substantial number of days with no water usage and minimal
water usage at night, contrary to the immediately preceding months. The
electricity bills from those months also document a corresponding sharp
drop in electricity usage during those three months, as well as January of
2020. It is the duty of the trier of fact to weigh credibility and to accept or
reject all or part of a witness's testimony. Badke v. USA Speedway, LLC,
49,060 (La. App. 2 Cir. 5/14/14), 139 So. 3d 1117, writ denied, 14-1533 (La.
10/24/14), 151 So. 3d 606; Corder v. Lively, 39,780 (La. App. 2 Cir.
6/29/05), 907 So. 2d 824. Where there is conflict in the testimony, 20 reasonable evaluation of credibility should not be disturbed on appeal.
Rose11 v. ESCO, 549 So. 2d 840 (La. 1989).
Based on this evidence, we find no abuse of discretion in the trial
court's determination that Sealy established a prima facie case to show that
Brown did not reside at the 2606 Village Lane town house six months prior
to the scheduled election. The trial court also determined that Brown failed
to present sufficient evidence to overcome that prima facie case.
Considering the broad discretion afforded to the trial court in these matters,
we can also find no manifest error in this determination. The evidence
presented by Brown to overcome the prima facie evidence included Brown's
and his wife's testimony that the couple was out of town during the final
three months of 2019. In support of these claims, Brown's wife submitted
two calendars she admittedly prepared the weekend before her testimony.
We find that such documentary evidence may reasonably be considered self-
serving and unpersuasive. Likewise, photographs taken by Albritton "about
a week" before her testimony to show the presence of clothing, toiletries,
and pantry items at the townhouse can also reasonably be viewed as
unreliable. Ultimately, the trial court rejected Brown's testimony as lacking
credibility and accepted as persuasive the actual water usage and utility
evidence. We discern no manifest error in the trial court's credibility
determination or ultimate conclusion that Brown failed to present sufficient
countervailing evidence to show that he resided at 2606 Village Lane in the
six months preceding the April 4, 2020, election. Accordingly, the judgment
of the trial court is affirmed.
21 ANSWER TO APPEAL
Sealy filed an answer to the appeal seeking to strike the following:
(1) the testimony of Henry Brown Jr. as a violation of the advocate-witness
rule, and (2) the redacted credit card receipts because they were not originals
or admissible duplicates as well as the testimony of Jason Brown as to what
the receipts would have shown had they not been redacted.
First, regarding the testimony of Henry Brown Jr., we note that there
is no dispute that he was counsel of record for Jason Brown when he was
called as a witness and gave testimony, over plaintiff's objection, that Jason
Brown lives at the Village Lane residence. The defendant and his wife both
provided similar testimony. In light of our conclusion herein and because
the testimony of Henry Brown Jr. was duplicative and had no bearing on our
findings, we pretermit any discussion of the propriety of the admission of his
testimony vis-a-vis the advocate-witness rule.
Next, Sealy seeks to strike the redacted credit card receipts and
Brown's testimony as to what the redacted material would have shown had it
not been redacted. A review of the record reveals that, while plaintiff's
counsel queried why the credit card receipts had been redacted during his
examination of Brown, he did not object to the introduction of the receipts,
or to Brown's testimony regarding the same. In the absence of a
contemporaneous objection, this issue was not preserved for review by this
Court and will not be addressed in this appeal. Davidson v. Castillo, 52,727
(La. App. 2 Cir. 8/14/19), 276 So. 3d 1157, writ denied, 19-1472 (La.
11/12/19), 282 So. 3d 233; Port City Glass & Paint Inc. v. Brooks, 52,534
(La. App. 2 Cir. 2/27/19), 266 So. 3d 516.
22 CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are
assessed to Appellant, Jason Trevor Brown.
AFFIRMED.