Butler v. Cantrell

630 So. 2d 852, 1993 WL 535663
CourtLouisiana Court of Appeal
DecidedDecember 29, 1993
Docket93-CA-2535
StatusPublished
Cited by8 cases

This text of 630 So. 2d 852 (Butler v. Cantrell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butler v. Cantrell, 630 So. 2d 852, 1993 WL 535663 (La. Ct. App. 1993).

Opinion

630 So.2d 852 (1993)

Idena BUTLER and Joan Butler
v.
Harry CANTRELL, Jr., et al.

No. 93-CA-2535.

Court of Appeal of Louisiana, Fourth Circuit.

December 29, 1993.
Writ Denied January 5, 1994.

*853 Milton Osborne, Jr., New Orleans, for plaintiffs/appellants.

Henry P. Julien, Jr., Julien & Julien, New Orleans, for defendants/appellees.

Sheri Marcus Morris, Asst. Atty. Gen., Baton Rouge, for defendants/appellees.

Before LOBRANO, JONES and WALTZER, JJ.

WALTZER, Judge.

This is an appeal from a judgment rendered on December 22, 1993 by the Honorable Robert A. Katz, Judge of the Civil District Court for the Parish of Orleans, dismissing with prejudice the petition of Idena Butler and Joan Butler (Butlers). The Butlers sought to disqualify defendants-appellees Harry Cantrell, Jr., Julius C. Feltus and Horace Batiste, who had previously qualified as candidates for the position of Assessor of the First Municipal District for the City of New Orleans, in the election to be held on February 5, 1994. The Butlers alleged that these defendants were not qualified to stand for election to the position of First Municipal District Assessor because at the time of qualification they were not residents of that District.

The matter came on for hearing before Judge Katz on December 21 and 22, 1993, was taken under submission, and the judgment appealed from herein was signed on December 22, 1993. Cantrell, Feltus and Batiste moved to dismiss the appeal, alleging that the plaintiffs' appeal bond was untimely filed, and that the surety, whom they allege to be a licensed attorney, is disqualified by law from serving in that capacity.

The record of the trial proceedings was lodged in this Court after 4:00 p.m. on December 27, 1993, and oral argument was heard at 2:00 p.m. on December 28, 1993.

APPELLANTS' MOTION TO DISMISS

Cantrell, Feltus and Batiste urge this Court to dismiss the Butlers' appeal, alleging that the judgment was rendered at 3:00 p.m. on December 23rd and the appeal bond was not filed until 3:16 p.m. on December 24th, sixteen minutes beyond the twenty-four hours allowed for perfection of appeal.

The record does not show the exact time at which the judgment was rendered, and defendants apparently rely on an oral representation made out of court by an unidentified member of the Civil District Court clerical staff. We find the defendants have failed to prove that the appeal bond was untimely filed. Were the bond filed sixteen minutes tardily, we do not believe the late filing to be material to the case. We find this delay to be analogous to that relied on unsuccessfully by the petitioner in Mix v. Alexander, 318 So.2d 130 (La.App. 4th Cir.1975). There, petitioner sought to strike defendant's answer, which was required to be filed within forty-eight hours of the filing of the original petition. LSA-R.S. 18:396. We find the court's reasoning to be applicable in the case at bar:

While the record does not contain a return showing the date and time of service of the petition on the defendant, even assuming the answer was filed several hours later than the permissible forty-eight hours as is indicated by counsel, we are of the opinion that the late filing is immaterial in this case. A reading of the statute in its entirety convinces us the intent of the legislature regarding the time limitations was to shorten the delays allowed for instituting judicial proceedings in election matters and to provide for their necessary rapid and expeditious consummation. We find *854 nothing in the statute to indicate the fortyeight hour limit within which to file an answer is jurisdictional. 318 So.2d at 133-134.

We are unable to determine from the record that the bond surety is an attorney and disqualified by law from serving as surety. Cantrell, Feltus and Batiste have failed to offer evidence to support their motion to dismiss by reason of the nullity of the appeal bond.

For the foregoing reasons, the motion of Harry Cantrell, Julius Feltus and Horace Batiste to dismiss the appeal of Idena Butler and Joan Butler is denied.

DISQUALIFICATION ISSUES

We find that the evidence of record amply supports the well reasoned factual conclusions set forth in the trial court's reasons for judgment. Absent manifest error, we adopt these findings of fact and accept the trial court's determinations of credibility of the witnesses who testified at the hearing below. Rosell v. ESCO, 549 So.2d 840 (La.1989); Canter v. Koehring Company, 283 So.2d 716 (La.1973). The trial judge found the following facts applicable to each of the three defendants:

"HARRY CANTRELL, JR. Mr. Cantrell testified that his wife, children and he live [in] a residence on Brainard St. but that he subleases a suite at 1315 Gravier Street for the last two months from Mr. Broussard for $800.00 per month. He also testified that he spends three or four nights a week there. He admitted that all of the utilities on the Brainard St. address come to the Brainard St. address and that his wife and children have never spent the night at Gravier St.
"On the day of the trial Mr. Cantrell went to the Registrar of Voters' Office and changed his voting address from the Brainard St. address to 1315 Gravier St.
"Mr. Cantrell produced a key to suite 1209 at 1315 Gravier St., which he testified is the key to the suite that he subleases from Mr. Broussard.
"The comptroller for the Comfort Inn at 1315 Gravier St. testified that they do not have a written lease with Mr. Broussard for the suite that he subleased to Mr. Cantrell and that prior to testifying he checked with the manager and there is an oral policy not to permit tenants to sublease the premises.
"It was stipulated that Brainard St. is not within the First Municipal District but that 1315 Gravier St. is.
"JULIUS C. FELTUS. Mr. Feltus testified that he, his wife and children reside on Garfield St. which is not in the First Municipal District. He further testified that: All of the utilities on the Garfield residence go to the Garfield St. address; he rents a room from Mr. Batiste at 1619 Baronne St. which is in the First Municipal District; he pays Mr. Batiste $300.00 a month and has been so doing this since January, 1993; he has changed his voting precinct to 1619 Baronne St.; he has a key to 1619 Baronne St. although he does not have the access code to the alarm system; he has a room that he uses at Baronne St. and has some articles of clothing there.
"HORACE BATISTE. Mr. Batiste testified that his correct address is 1619 Baronne St. and not 1916 Baronne St.—which is the address on the candidacy form filed with the Clerk of Court. He also testified that: he is the owner of the premises at 1619 Baronne St.; he subleases a room to Mr. Feltus for $300 a month although there are no written receipts to corroborate this exchange of money; Mr. Feltus does have a key to the premises but does not know the access code to the alarm system."

LEGAL CONCLUSIONS

The qualifications of candidates for the position of tax assessor in the Parish of Orleans are set out in the Louisiana Constitution of 1974, Article 7 § 24(B):

"There shall be seven assessors in New Orleans, who shall compose the Board of Assessors for Orleans Parish. One shall be elected from each municipal district of New Orleans, and each shall be a resident *855 of the district from which he is elected...."[1]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael M. Sellar v. Donald "Don" Nance
Louisiana Court of Appeal, 2022
Opinion Number
Louisiana Attorney General Reports, 2010
Smith v. Goins
994 So. 2d 591 (Louisiana Court of Appeal, 2008)
Charles F. Smith, Jr. v. Jonathan D. Goins
Louisiana Court of Appeal, 2008
Webb-Goodwin v. Butler
869 So. 2d 228 (Louisiana Court of Appeal, 2004)
Walsh v. Rogillio
768 So. 2d 653 (Louisiana Court of Appeal, 2000)
Blackwell v. Kershenstine
690 So. 2d 247 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
630 So. 2d 852, 1993 WL 535663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-cantrell-lactapp-1993.