Vincent Alexander v. Albert Da Da" P. Menard "

• Court: Louisiana Court of Appeal
• Decided: September 28, 2015
• Docket: CA-0015-0910
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-910

VINCENT ALEXANDER

VERSUS

ALBERT “DA DA” P. MENARD AND THE HONORABLE BECKY P. PATIN, CLERK OF COURT FOR THE PARISH OF ST. MARTIN

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 83144 HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Billy Howard Ezell, James T. Genovese, and David Kent Savoie, Judges.

AFFIRMED. Lucretia Pecantte Attorney at Law P. O. Box 9010 New Iberia, LA 70562-9010 (337) 374-1202 COUNSEL FOR DEFENDANTS/APPELLEES: Becky Patin, St. Martin Parish Clerk of Court Albert “Da Da” P. Menard

Vincent Alexander In Proper Person 345 W. Mills Avenue Breaux Bridge, LA 70517 (337) 278-8349 GENOVESE, Judge.

The plaintiff candidate, Vincent Alexander, appeals from the trial

court’s judgment dismissing his suit objecting to the candidacy of the defendant,

Albert P. Menard, for the position of parish councilman. Finding no error in the

trial court’s interpretation of the applicable statutes, and no manifest error in the

trial court’s findings of fact, we affirm the judgment dismissing the suit.

I.

ISSUE

We must decide whether the trial court legally erred or was manifestly

erroneous in dismissing the objection to candidacy filed by Mr. Alexander against

Mr. Menard based upon Mr. Menard’s alleged failure to pay outstanding fees prior

to noticing his candidacy for office.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Alexander, a candidate for Parish Council, District 7, St. Martin

Parish, filed suit objecting to the candidacy of Mr. Menard for the same position.

Mr. Alexander’s suit is based upon Mr. Menard’s allegedly having falsely certified

that he had no unpaid fines, fees, or penalties, pursuant to the Code of

Governmental Ethics, at the time that Mr. Menard qualified for the Council

position in the upcoming election.

Mr. Alexander entered into evidence a 2014 suit filed by the State of

Louisiana Board of Ethics (BOE) against Mr. Menard in the Sixteenth Judicial

District Court, St. Martin Parish, Docket No. 81825, challenging his candidacy in

the 2014 election of Alderman for the City of Breaux Bridge. That suit asserted that Mr. Menard had not paid two Late Fee Orders issued by the BOE for his

failure to timely file Tier 3 Annual Personal Financial Disclosure Statements in

2009 ($200.00 assessment) and in 2010 ($1,500.00 assessment).

As a result of the suit by the BOE, Mr. Menard voluntarily withdrew

his candidacy for the position of Alderman in the 2014 election, and the BOE filed

a Motion and Order to Dismiss in Docket No. 81825 on September 25, 2014. The

Order to Dismiss was signed by Judge Paul J. deMahy on March 2, 2015. Mr.

Vincent contended at trial that the St. Martin Parish Clerk of Court was holding the

dismissal in suit No. 81825 “for the deposit of $514.95.”

Mr. Menard entered into evidence documents showing that he had

paid fees of $1,500.00 to the BOE on September 9, 2015. Mr. Menard testified

that two hours before filing his notice of candidacy, on the same date, he drove to

Baton Rouge and paid all of the fees or fines that the Baton Rouge office said he

owed to the BOE, which was $1,500.00.

Following the testimony of the parties and the St. Martin Parish Clerk

of Court, Becky P. Patin, the trial court dismissed Mr. Vincent’s suit in this case,

challenging the candidacy of Mr. Menard in the current race for Parish Council.

For the reasons expressed below, we affirm the trial court’s judgment of dismissal.

III.

STANDARDS OF REVIEW

“Questions of law, such as the proper interpretation of a statute, are

reviewed by the appellate court under the de novo standard of review.” Land v.

Vidrine, 10-1342 (La. 3/15/11), 62 So.3d 36 (citations omitted). An appellate court

may not set aside a trial court’s findings of fact in absence of manifest error or

2 unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880

(La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In election suits, generally,

great deference is given to the trier of fact’s findings regarding the credibility of

witnesses. See Herpin v. Boudreaux, 98-306 (La.App. 3 Cir. 3/5/98), 709 So.2d

269 (citing Blackwell v. Kershenstine, 97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d

247, writ denied, 97-545 (La. 3/14/97), 689 So.2d 1390). Accordingly, in this

case, we conduct a de novo review of the trial court’s findings regarding whether

court costs are included in the definition of outstanding fines, fees, and penalties in

La.R.S. 18:463(A)(2)(c)(ii)–(iii); and, we review for manifest error the trial court’s

findings of fact regarding Mr. Menard’s payment of the outstanding late fees prior

to signing his Notice of Candidacy, with appropriate deference to the trial court in

evaluating the credibility of the witnesses testifying before the court.

IV.

LAW AND DISCUSSION

On September 9, 2015, Mr. Menard signed a Notice of Candidacy

form wherein he was required to certify thirteen items of information in order to

run for the office of Councilman. Item number eleven of that form states: “I do

not owe any outstanding fines, fees, or penalties pursuant to the Code of

Governmental Ethics.” Mr. Alexander’s suit is brought pursuant to La.R.S.

18:492(A)(6), providing that an action objecting to an individual’s candidacy can

be brought on the grounds that he “falsely certified on his notice of candidacy that

he does not owe any outstanding fines, fees, or penalties pursuant to the Code of

Governmental Ethics as provided in R.S. 18:463(A)(2).” Louisiana Revised

Statutes 18:463(A)(2)(c) (emphasis added) provides:

3 (ii) “Outstanding fines, fees, or penalties pursuant to the Code of Governmental Ethics” shall mean a fine, fee, or penalty equal to an amount of two hundred fifty dollars or more imposed by the Board of Ethics for which all appeals have been exhausted.

(iii) “Outstanding fine, fee, or penalty” shall not mean any fine, fee, or penalty that has been paid in full as of the time of the filing of the notice of candidacy.

Here, the trial court’s dismissal of Mr. Alexander’s suit was based

upon the evidence that the BOE had dismissed its suit challenging Mr. Menard’s

candidacy for Alderman in the 2014 election; and it was based upon the evidence

that Mr. Menard had paid all of the outstanding fees owed to the BOE before filing

his notice of candidacy for Councilman in the current election. Mr. Vincent

contends that the trial court erred in finding that the previous suit against Mr.

Menard had been dismissed and in finding no false certification as to item number

eleven when Mr. Menard filed his Notice of Candidacy form.

Outstanding Fees

Mr. Alexander contends that State, Board of Ethics v. Darby, 06-1058

(La.App. 3 Cir. 8/24/06), 937 So.2d 929, is applicable. In that challenge to

candidacy, this court reversed a dismissal of the suit because the candidate’s

outstanding fees were not paid until after the candidate certified that he had no

outstanding fees, even though the trial court had allowed the candidate an

additional twenty-four hours to pay. Such is not the case here, where the record

reveals that Mr. Menard paid his outstanding fees of $1,500.00 to the BOE on

September 9, 2015, before he filed his Notice of Candidacy certifying that he owed

no outstanding fines, fees, or penalties under the Code of Governmental

Ethics. The copies of the dated money orders, receipt, and Notice of Candidacy in

4 the record all bear the dates of September 9, 2015, and Mr. Menard testified that he

paid the fees about two hours before filing the Notice. Mr. Alexander put on no

evidence to refute Mr. Menard’s testimony that the fees were paid before the form

was signed.

Mr. Alexander further argues that the court costs on the previous suit

by the BOE, in the amount of $514.95, were the responsibility of Mr. Menard, and

the non-payment of the court costs before filing his Notice of Candidacy renders

Mr. Menard in violation of La.R.S. 18:492(A)(6). We disagree. The statute

defining the meaning of outstanding fees “pursuant to the Code of Governmental

Ethics” clearly defines them as fees “imposed by the Board of Ethics,” not by the

court. La.R.S. 18:463(A)(2)(c)(ii). At trial, Clerk of Court Becky Patin testified

regarding the distinction between court costs owed to the court and fees owed to

the BOE that affect candidacy. In discussing the Clerk of Court’s Notice of

Candidacy form and the certification under item number eleven, Ms. Patin

testified:

Q. Okay. They cannot owe any money to who?

A. The Board of Ethics.

Q. Does it say anywhere in this document that they cannot owe court cost to you?

A. No, ma’am.

Q. It’s cost, fines[,] and penalties to who? Is it to you or is it to the Board of Ethics?

A. It’s to the Board of Ethics.

Q. And in this document they certify that they don’t owe anything to the Board of Ethics.

A. Right.

5 Q. Was the court cost that was a[ss]essed in the previous case, was that cost for the Board of Ethics or was it cost --

A. It was our court cost.

Q. It was yours. So it had nothing to do with the Board of Ethics.

A. No, ma’am. It was court cost that was owed to us.

....

Q. So, Miss Patin, it’s your understanding[,] and I think it’s -- let me get it -- as to Number 11, he certified that he owed no outstanding fines, fees[,] or penalties to the Board of Ethics.

A. Correct.

Q. And the court cost that is the subject of this suit is court cost owed to the --

A. To me.

Q. -- to the St. Martin Parish Clerk of Court.

A. Yeah, to the Clerk of Court[’]s Office.

Q. And not to the Louisiana Board of Ethics.

The testimony at trial was clear that Mr. Menard owed no fines, fees,

or penalties to the BOE when he filed his Notice of Candidacy on September 9,

2015. Mr. Menard paid the outstanding fees owed to the BOE earlier in the day on

September 9, 2015, such that his certification was not falsely made.

Dismissal of the Previous Suit by the BOE

Mr. Alexander argues that the dismissal signed by the trial court has

no effect because BOE did not pay the court costs of $514.95, and, therefore, the

suit is still pending. This argument is without merit. As indicated, the BOE had

dismissed the suit a year earlier, on September 25, 2014, and the judge signed the

6 dismissal on March 2, 2015. We further note that the 2014 suit was not for the

unpaid late fees; the suit was filed by the BOE to challenge Mr. Menard’s

candidacy because of the unpaid late fees. Mr. Menard was qualifying to run for

his fifth term. The late fees were assessed because Mr. Menard had not timely

filed his financial disclosure forms in 2010 under the Campaign Finance

Disclosure Act. The 2014 suit was dismissed and cured when Mr. Menard

withdrew his candidacy for Alderman in 2014.

Testimony at trial regarding the dismissal is clear that the previous

suit was not pending when Mr. Menard filed his Notice of Candidacy on

September 9, 2015. In arguing this point on appeal, Mr. Alexander excerpted only

part of the testimony of the Clerk of Court, Becky Patin. At trial, Ms. Patin

testified regarding the dismissal:

Q. Okay. Dismissals, in reference to dismissals that are not filed in the record withheld court cost, they’re not filed, they’re not filed in the record until they’re paid in full; is that correct?

A. Yes, sir.

Q. Okay. Until court cost are paid[,] matters are not dismissed. They are placed in another file cabinet until they’re paid, so they’d be dismissed.

A. You are correct, but if a judge signs a dismissal, you know, it’s signed.

Q. They’re not dismissed till they paid. Is that correct?

A. Most of the time, but if a judge signs it before, you know, it’s like when a judge signs an order we have to abide by it, but sometimes we don’t send a copy to the opposing attorney unless they pay the court cost.

Q. What was the court cost in the matter of State Board of Ethics Versus Albert “DaDa” Menard, Docket 81825?

A. Five hundred fourteen dollars and ninety-five cents ($514.95).

7 Q. Okay. Did you receive a dismissal document from the Board of Ethics?

A. When they came to court, I’m suggesting that when they came to court that day[,] Judge deMahy signed the order on March 2nd , 2015.

Q. Okay.

A. The dismissal.

Q. Is it true that this dismissal document was not filed because you hadn’t received, you know, the payment.

A. We received and filed everything, but we didn’t send him a copy.

On cross examination by Mr. Menard’s attorney, Ms. Patin responded:

Q. Miss Patin, if I understand your testimony correctly, the dismissal was signed.

A. It was.

Q. When the suit was filed by the Board of Ethics were any court cost paid by the Board of Ethics?

A. No.

Q. Okay. Did y’all send them a copy of the dismissal?

A. We did.

Ms. Patin was further asked regarding the dismissal:

Q. And it was signed by the judge?

A. Yes. It was signed on March 2nd , 2015[,] by Judge deMahy.

Q. In that record is there a Judgment stating Mr. Menard owed money to the Board of Ethics?

A. No, they dismissed the suit.

Q. Is there an Order stating that Mr. Menard is ordered to pay any other additional fines and fees to the Board of Ethics?

A. No, sir.

8 On appeal, Mr. Alexander argues La.R.S. 13:4201 and La.Code Civ.P.

art. 1671 in efforts to show that the suit was not dismissed. 1 Mr. Alexander’s

arguments are misplaced and without merit. These articles address whether a

plaintiff is entitled to a voluntary dismissal with or without prejudice. In the 2014

suit, the plaintiff, the BOE, did not want a dismissal without prejudice in order to

preserve their rights to bring the suit again. Rather, they sought a full dismissal,

with prejudice to themselves, after they received certification from the Secretary of

State that Mr. Menard had withdrawn his candidacy in the 2014 election. Mr.

Alexander cannot challenge the BOE’s dismissal of Mr. Menard because court

costs were not paid. A discontinuance, or judgment allowing the same, is not open

to collateral attack as an absolute nullity because it fails to condemn the plaintiff

for costs of the suit. De Renzes v. His Wife, 117 La. 817, 42 So. 327 (La.1906).

The Louisiana Supreme Court has further held that a judgment

granted on a voluntary motion to dismiss is effective even though the court costs

1 Louisiana Code of Civil Procedure Article 1671, entitled “Voluntary dismissal[,]” provides as follows:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant. If the application is made after such appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

Louisiana Revised Statutes 13:4201, entitled “Voluntary dismissal or discontinuance; payment of costs before judgment rendered or signed[,]” provides:

No order or judgment shall be rendered or signed by any court of the state dismissing or discontinuing any suit or reconventional demand, on the voluntary motion of any or all of the parties thereto, unless and until all costs and commissions due the clerk of court and the sheriff shall first have been paid, to be evidenced by certificates of those officers to be filed with and made part of the motion to dismiss or discontinue.

9 have not been paid. Adams v. Aetna Cas. & Sur. Co., 252 La. 798, 214 So.2d 148

(La.1967). Further, the cited articles command that the court shall not refuse to

dismiss the suit upon payment of all costs and grants to the judge the discretion as

to whether voluntary dismissal will be granted where costs have not been

previously paid. See id. Nonpayment of a court cost has no effect upon the

validity of an order granting a dismissal or its application to a defendant. See id.

Moreover, in filing the 2014 suit, the BOE, as a public board, informed the Clerk

of Court in its cover letter that it was exempt from court costs pursuant to La.R.S.

13:4521. That statute requires the exempted board to assist the court in collecting

the costs by asking the court to tax costs in accordance with La.Code Civ.P. art.

1920,2 which allows the court to render a judgment for the costs against any party

“as it may consider equitable.” Thus, the BOE was not liable for the costs. It

asked the court to tax costs to Mr. Menard, and the court has the discretion to file

suit for the costs, or not. No suit for costs has been filed against Mr. Menard by

the Clerk of Court for failure to pay the costs of the previous suit, and it is solely

within the purview of the Clerk of Court to do so, not the BOE.

V.

CONCLUSION

Finding that the previous suit by the BOE was dismissed, and that Mr.

Menard owed no outstanding fines, fees, or penalties to the BOE, we affirm the

2 Under La.Code Civ.P. art. 1920, entitled “Costs; parties liable; procedure for taxing[:]”

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

10 trial court’s dismissal of this suit against Albert Menard. Costs of this appeal are

assessed to the plaintiff, Vincent Alexander.

AFFIRMED.