Justin Conner v. Gene T. Allen

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-182

JUSTIN CONNER

VERSUS

GENE T. ALLEN

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF CONCORDIA, NO. 39,449 “B”,
HONORABLE LEO BOOTHE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Judges Jimmie C. Peters, Elizabeth A. Pickett, and Arthur J.
Planchard, Pro Tempore.

AFFIRMED.

Robert E. Clark
Post Office Box 888
109 Carter Street
Vidalia, LA 71373
(318) 336-5886
COUNSEL FOR JUSTIN CONNER

Derrick D. Carson
Post Office Box 1106
Ferriday, LA 71334
COUNSEL FOR GENE T. ALLEN

PICKETT, Judge.

The plaintiff-appellant, Justin Conner, appeals from a judgment of the trial
court which dismissed his suit challenging the eligibility of defendant-appellee, Gene
T. Allen, as a candidate for Mayor of the Town of Ferriday. We affirm.
On February 6, 2004, plaintiff-appellant filed a “Petition Objecting to
Candidacy” which alleged defendant-appellee does not meet the qualifications, as set
forth in La.R.S. 33:384, to seek the position of Mayor of the Town of Ferriday. A
hearing was held on February 9, 2004. The trial court granted defendant-appellee’s
motion for involuntary dismissal. On February 10, 2004, judgment was signed
dismissing the petition and affirming defendant-appellee’s qualifications as candidate
for the office of Mayor of the Town of Ferriday. On February 10, 2004, plaintiff-
appellant filed a notice of appeal.
La.R.S. 33:384 provides:

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.

In Russell v. Goldsby, 2000-C-2595 (La. 9/22/00); 780 So.2d 1048, the
Supreme Court stated:

In an election contest, the person objecting to the
candidacy bears the burden of proving the candidate is
disqualified. La. R.S. 18:492; Messer v. London, 438
So.2d 546 (La.1983). The laws governing the conduct of
elections must be liberally interpreted so as to promote
rather than defeat candidacy. Any doubt as to the
qualifications of a candidate should be resolved in favor of
permitting the candidate to run for public office. Dixon v.
Hughes, 587 So.2d 679 (La.1991).
...
Turning to the issue of domicile first, we note it is well
settled that residence and domicile are not synonymous,
and a person can have several residences, but only one
domicile. La. Civ.Code art. 38; Messer, 438 So.2d at 547;
Autin v. Terrebonne, 612 So.2d 107 (La.App. 1st Cir.1992).
A person's domicile is his principal establishment wherein
he makes his habitual residence and essentially consists of
two elements, namely residence and intent to remain. The

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question of domicile is one of intention as well as fact, and
where it appears domicile has been acquired in another
place, the party seeking to show it has been changed must
overcome the legal presumption that it has not been
changed by positive and satisfactory proof of establishment
of a domicile as a matter of fact with the intention of
remaining in the new place and of abandoning the former
domicile. Pattan v. Fields, 95-1936 (La.App. 1st
Cir.1995), 669 So.2d 1233. Absent declaration to change
domicile, proof of this intention depends upon
circumstances; there is a presumption against change of
domicile. Messer, 438 So.2d at 547; Herpin v. Boudreaux,
98-306 (La.App. 3d Cir.3/5/98), 709 So.2d 269, writ
denied, 98-0578 (La.3/11/98), 712 So.2d 859.
Russell v. Goldsby, 780 So.2d 1048 at 1051.

Turning to the testimony offered by the plaintiff-appellant at trial, Golda
Ensminger, Registrar of Voters for Concordia Parish, testified defendant-appellee
changed his address with the Registrar of Voters Office from 2962 Highway 569,
which is outside the city limits of Ferriday, to 609 Alabama Avenue, which is within
the city limits of Ferriday, on February 12, 2003. Monelle Moseley, the Assessor for
Concordia Parish, testified in February 2003, defendant-appellee requested the
homestead exemption be removed from 2962 Highway 569. Cotrina Johnson, a
billing clerk for the Town of Ferriday, testified the only account for water service for
609 Alabama Avenue is in the name of Concordia Funeral Home. Obie Jo Simmons,
the 911 Coordinator, testified each residence or business in the Parish of Concordia
should have an address for purposes of the 911 service, but that it is common in the
parish to have more than one structure with the same address.
Defendant-appellee testified he, his wife, and his adult son have lived in a two
bedroom trailer located behind his business, Concordia Funeral Home, located at 609
Alabama Avenue, since October 2002. Defendant-appellee also testified he has no
intention of moving outside the city limits of Ferriday. Defendant-appellee receives
mail at both 609 Alabama Avenue and P. O. Box 684. Defendant-appellee still owns
the property located on Highway 569, and his wife occasionally visits that property
on weekends.

Defendant-appellee testified the trailer located at 609 Alabama Avenue has
electricity, water and sewerage. The service for the electricity is independent of the
funeral home, but the water and sewerage service is connected to that of the funeral

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home. There is one phone which rings at the funeral home and the trailer due to the
need for being accessible to his clients at all times. The trailer is furnished with living
room furniture, a kitchen table and chairs, and two beds. The trailer has a complete
kitchen and bath. Defendant-appellee eats and sleeps at the trailer every day. Several
photographs, which were taken the morning of the hearing, were introduced into
evidence which depicted the trailer set up behind the funeral home and the contents
of the trailer.
When a trial court’s findings are based on determinations regarding the
credibility of witnesses, great deference must be given to those findings. Blackwell
v. Kershenstine, 97-210 (La.App. 3 Cir. 2/27/97), 690 So.2d 247, writ denied, 97-
0545 (La. 3/14/97), 689 So.2d 1390. In Mayes v. State, 96-789 (La.App. 3 Cir.
12/11/96), 685 So.2d 497, writ denied, 97-0113 (La. 3/7/97), 689 So.2d 1376, this
court stated a trial court’s grant of a motion for involuntary dismissal should not be
reversed in the absence of manifest error.
The trial court acknowledged the testimony regarding the change of address and
the change of the homestead exemption made in February, 2003, within the year
preceding the notice of candidacy, but the court stated this was simply when
defendant-appellee completed the paperwork regarding the change of his address to
609 Alabama Avenue. The trial court stated the record is devoid of any evidence
refuting defendant-appellee’s testimony that he has been living at 609 Alabama
Avenue since October, 2002, which is more than one year preceding his notice of
candidacy.
We find no manifest error in the trial court’s finding that plaintiff-appellant
failed to establish, by a preponderance of the evidence, that defendant-appellee was
not domiciled and did not actually reside in the municipality for at least the
immediately preceding year.
In his appellate brief, plaintiff-appellant cites La.R.S. 18:101 B, which provides,
in pertinent part:

B. For purposes of the laws governing voter registration
and voting, "resident" means a citizen who resides in this
state and in the parish, municipality, if any, and precinct in
which he offers to register and vote, with an intention to
reside there indefinitely. If a citizen resides at more than
one place in the state with an intention to reside there
indefinitely, he may register and vote only at one of the

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places at which he resides. However, if a person claims a
homestead exemption, pursuant to Article VII, Section 20
of the Constitution of Louisiana, on one of the residences,
he shall register and vote in the precinct in which that
residence is located.

As noted above, defendant-appellee removed the homestead exemption from
the property at 2962 Highway 569 in February 2003. Pursuant to La.R.S. 18:101 B,
defendant-appellee was required to register and vote in the precinct in which the
residence on Highway 569 was located until he removed the homestead exemption
from that property in February 2003. Therefore, plaintiff-appellant argues defendant-
appellee could not meet the qualifications for Mayor of the Town of Ferriday until
February 26, 2004, one year following the change removing the homestead exemption
from the Highway 569 property.
This court finds La.R.S. 18:101 B does not preclude defendant-appellee from
being domiciled and actually residing at 609 Alabama Avenue prior to the change
regarding the homestead exemption in February 2003 for the following reasons.
La.R.S. 18:101B pertains to voting, as indicated in the opening phrase of that
paragraph, and is separate and apart from La.R.S. 33:384, which pertains to
qualifications for mayor. Additionally, La.R.S. 33:384 simply requires the person to
be an elector of the municipality, and the one year requirement found in that statute
does not apply to the requirement of being an elector. As defendant-appellee changed
his address to 609 Alabama Avenue with the Registrar of Voters in February 2003,
he was an elector of the municipality at the time he filed his notice of candidacy.
Therefore, defendant-appellee, Gene T. Allen, met all of the qualifications for mayor
enumerated in La.R.S. 33:384.
For the reasons expressed above, the judgment of the trial court is affirmed at
plaintiff-appellant’s cost.

AFFIRMED.

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