Gwen Fontenot and Renee M. Brown v. Todd P. McKellar

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-531

GWEN FONTENOT AND RENEE M. BROWN

VERSUS

TODD P. MCKELLAR, ET AL.

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APPEAL FROM THE
THIRTEENTH JUDICIAL DISTRICT COURT
PARISH OF EVANGELINE, NO. 80,831-A
HONORABLE MARCUS L. FONTENOT, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, D. Kent Savoie,
Van H. Kyzar, Candyce, G. Perret, Jonathan W. Perry, Sharon Darville Wilson,
Charlie G. Fitzgerald, Gary J. Ortego, Ledricka J. Thierry, Guy E. Bradberry, and
Wilbur L. Stiles, Judges.

AFFIRMED.

SAVOIE, J., concurs.
KYZAR, J., dissents for the reasons assigned by Judge Stiles.
BRADBERRY, J., dissents for the reasons assigned by Judge Stiles.
STILES, J., dissents and assigns written reasons.

Jerald R. Harper
Anne E. Wilkes
Harper Law Firm
213 Texas Street
Shreveport, LA 71101
(318) 213-8800
COUNSEL FOR DEFENDANT- APPELLANT:
Todd P. McKellar

Anne E. Watson
The Law Office of Anne E. Watson, LLC
232 North Liberty Street
Opelousas, LA 70570
(337) 942-9790
COUNSEL FOR PLAINTIFFS -APPELLEES:
Gwen Fontenot
Renee M. Brown

Jacob B. Fusilier
Fusilier & Associates, LLC
Post Office Box 528
Ville Platte, LA 70586
(337) 363-6661
COUNSEL FOR PLAINTIFFS- APPELLEES:
Gwen Fontenot
Renee M. Brown

PERRET, Judge.

The defendant, Todd P. McKellar, appeals a judgment of the trial court

disqualifying him as a candidate for election to the Louisiana House of

Representatives District 38 seat at the October 14, 2023 primary election. The trial

court found that Mr. McKellar was not actually domiciled in the geographic

boundaries of District 38 for one year prior to filing paperwork to qualify on August

8, 2023. As this case involves a candidate for membership in the state legislature,

it is required to be heard by this court en banc. La.R.S. 18:1409(H).

FACTS

Gwen Fontenot and Renee M. Brown, qualified electors in Evangeline Parish,

filed a Petition Objecting to Candidacy Pursuant to La.R.S. 18:1406 on August 14,

2023. Both plaintiffs live in House of Representatives District 38, which includes

parts of Evangeline Parish and Rapides Parish. They allege that Mr. McKellar, who

had filed to run for State Representative for District 38, was not actually domiciled

in the district for a year preceding his qualification for candidacy. They allege he

owned a home in Calcasieu Parish, his homestead exemption was on the home in

Calcasieu Parish until April 11, 2023, and he voted in the November 2022 election

in Calcasieu Parish. Thus, they allege that he does not meet the qualifications for

the office of State Representative and sought to disqualify him and have his name

removed from the ballot.

Mr. McKellar did not file an answer (see La.R.S. 18:1406(C)), but appeared

at the hearing set for August 16, 2023, and disputed the claims of Dr. Fontenot and

Ms. Brown.

At the hearing, both plaintiffs introduced evidence to establish that they are

qualified electors of House District 38 and have standing to bring this action. They

introduced evidence from the Louisiana Secretary of State’s office that Mr.

McKellar voted in the congressional election on November 8, 2022. They also

introduced evidence that Mr. McKellar maintained his homestead exemption on his

home in Calcasieu Parish from May 26, 2015 to April 11, 2023. The plaintiffs also

elicited testimony from Mr. McKellar that he received bank statements at the

Calcasieu Parish home, his vehicle was registered at the Calcasieu Parish home, the

Calcasieu Parish home is where his business was domiciled, and the address on his

driver’s license was in Calcasieu Parish until February 2023.

Mr. McKellar then testified that his home in Calcasieu Parish was rendered

uninhabitable because of damages sustained during Hurricane Laura in August 2020.

He introduced pictures to show the state of the home after the storm passed. He also

testified that he moved into the home of his girlfriend, then Ericka Causey, in

Glenmora in Rapides Parish, which is in House District 38, on October 30, 2021,

and has lived at the home in Glenmora since that time. He also introduced evidence

that he married Ericka on March 25, 2022, and that his intent has been to remain

domiciled in Rapides Parish since he originally moved in with her. He testified that

he has one child with his wife who was a year old, and he has begun the proceedings

to adopt Ericka’s older children. He also testified that he moved all his belongings

to the Glenmora home in January 2022, when he installed a portable building on the

property near Ericka’s home in Glenmora. He testified that the home in Calcasieu

Parish remained uninhabitable until only two months before the date of the trial, and

he listed it for sale in January 2023. He denied that he remained registered to vote

in Calcasieu Parish because he intended to return there to live. Mrs. McKellar also

testified and stated that Mr. McKellar has lived with her in Glenmora since October

30, 2021.

Chad Sarver, the contractor engaged to repair Mr. McKellar’s Calcasieu

Parish home, testified that Mr. McKellar told soon after he was hired to restore the
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home that he had no intention of returning to live there. He also testified that he

only installed the air conditioning at the Calcasieu Parish home in November 2022,

which would have been the earliest that the house could have been habitable. He

also testified that he only recently as of the date of trial sent Mr. McKellar the final

invoice for work on the house.

Mr. McKellar’s brother-in-law and neighbor, Darrell Lane Causey, testified

that Mr. McKellar has lived with his sister since October 2021. He stated that he

sees him just about every day. Two other neighbors, Travis Burnett and Wayne

Dupre, Jr., also testified that Mr. McKellar lives at the Glenmora home with his wife.

The parties stipulated that several other witnesses would testify likewise.

At the conclusion of the hearing, the trial court issued this ruling:

Okay, the court has reviewed the law, considered all the
evidence, and agreed that the issue before the court, and I think counsel
the interesting thing with this case is and I think counsel will agree. The
facts are not necessarily all that disputed, it’s the interpretation of the
fact presented to the court. I think it’s clear, um, that Mr. McKellar was
domiciled in Rapides Parish at least as of February of 2023. The issue
is his domicile one-year prior to the actual qualification. And I think
that date is in... is it August 10th or 11, when they qualified?

....

Is August 10th of 2022. So, basically, under our constitution a
person must be actually domiciled in the [preceding] year in that
legislative district. A person can have more than one residence, but a
person can only have one domicile. Um, civil code provides that proof
of one’s intent to change domicile depends on the circumstances.
Determination of a party’s intent to change his domicile must be based
on the actual state of facts not simply what the persons declares. So, in
other words, I have to look at the facts not just what someone says. So,
this is the facts as I interpreted them. Number one, Calcasieu Parish is
not in District 38. I think we all agree the, uh, the map was presented,
uh, in the event it’s not I think also, Mr. McKellar has more than one
residence. He has a residence, and it appears from the evidence he has
residence in Calcasieu Parish and he has a residence in Rapides Parish.
Uh, the facts presented that his house in ... or his residence in Calcasieu
Parish has been under repair since the hurricane, I believe the date of
the hurricane was 2020. Um, the evidence also shows and the facts
show that Mr. McKellar had a homestead exemption that remained in
Calcasieu Parish until, well for 2022, so remained there until 2023. Uh,
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the facts also show that many of Mr. McKellar's personal records, uh,
retain his Calcasieu Parish address as of August of 2022. And continues
to this date. Um, the records also, the facts also show that Mr. McKellar,
uh, did not own, was not registered vote, or claimed homestead
exemption in Rapides Parish until, uh, at least after August 10th of
2022. And the big one for the court is that Mr. McKellar voted in
Calcasieu Parish in November of 2022. The act of voting, and a lot of
times you hear the old saying actions speak louder than words, the act
of voting is a conscience, deliberate action by Mr. McKellar indicating
his intent at least as of November 22 ... November 2022, was to be
domiciled in Calcasieu Parish. Accordingly, the court, um, sustains the
objections of Mr. McKellar’s candidacy on the grounds that he failed
to meet the qualifications that’s alleged in the petition. Uh, Mr.
McKellar is disqualified as a candidate for the Office of House of
Representatives. Um, it’s a final judgment and, uh, this will be my
reasons for ruling.

The trial court signed a judgment granting the petition filed by the plaintiffs.

Mr. McKellar now appeals.

ASSIGNMENTS OF ERROR

Mr. McKellar asserts six assignments of error:

1. The trial court erred when it found that Todd P. McKellar (“McKellar”)
retained a domicile in Calcasieu Parish in 2022, when he had left that
Parish as a resident and resided exclusively in Rapides Parish since
October 31, 2021.

2. The trial court committed legal error in finding domicile in Calcasieu
Parish in late 2022, when McKellar had no residential presence in that
Parish for more than two years.

3. The trial court erred in failing to take into account undisputed evidence
that McKellar’s house in Calcasieu Parish was destroyed by Hurricane
Laura in August 2020, and at that time he indicated that he would not
return to live there.

4. The trial court committed legal error in confusing the concepts of
domicile and residence and the legal elements of each.

5. The trial court erred in failing to find that McKellar had established a
new habitual residence and domicile in Rapides Parish commencing on
October 31, 2021 in light of undisputed testimony and documentary
evidence establishing that fact.

6. The trial court committed legal error in failing to liberally construe the
election laws and undisputed evidence in a fashion which promotes,
rather than defeats candidacy.

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APPLICABLE LAW

Louisiana Revised Statutes 18:1461(A)(1) requires that a “person who desires

to become a candidate in a primary election shall qualify as a candidate by timely

filing a notice of his candidacy[.]” Pursuant to La.R.S. 18:463(A)(1)(a), a notice of

candidacy is required to include the address of the candidate’s domicile. When 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.” La.R.S. 18:451. Louisiana Constitution Article 3, § 4(A) sets the

requirements for eligibility to serve as a member of the legislature:

Age; Residence; Domicile. An elector who at the time of qualification
as a candidate has attained the age of eighteen years, resided in the state
for the preceding two years, and been actually domiciled for the
preceding year in the legislative district from which he seeks election
is eligible for membership in the legislature.

Louisiana Civil Code Article 38 defines the domicile of a natural person as

“the place of his habitual residence.” “A natural person may reside in several places

but may not have more than one domicile. In the absence of habitual residence, any

place of residence may be considered one’s domicile at the option of persons whose

interests are affected.” La.Civ.Code art. 39. In a previous election suit, this court

stated in Herpin v. Boudreaux, 98-306, pp. 6-7 (La. App. 3 Cir. 3/5/98), 709 So. 2d

269, 271, writ denied, 98-0578 (La. 3/11/98), 712 So. 2d 859:

Domicile is a person’s principal domestic establishment, as
contrasted to a business establishment. Messer v. London, 438 So.2d at
547; Broussard v. Romero, 607 So.2d 979, 980 (La.App. 3rd Cir.1992).
In other words, 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 in place. LSA–C.C.P.
art. 1234; Veillon v. Veillon, 517 So.2d 936, 940 (La.App. 3rd Cir.),
writ denied, 519 So.2d 105 [669 So.2d at] 1238 (La.1987). Further, a
person’s domicile of origin continues until another is acquired.
Blackwell v. Blackwell, 606 So.2d 1355, 1358 (La.App. 2nd Cir.1992).

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In Broussard v. Romero, 607 So.2d 979, 980-981 (La.1992)(footnote omitted), the

supreme court explained:

A change in domicile occurs when there is a change in actual
residence accompanied by an intention to make a new principal
establishment or home. Succession of Rhea, 227 La. 214, 78 So.2d 838
(1955). There is a presumption against change of domicile. In Re
Adoption of Rials, 220 La. 484, 56 So.2d 844 (1952).

The phrase “actually domiciled” in the Constitution of 1974
requires that one holding legislative office have a real rather than
fictitious domicile in the area represented. However, the question of
“intention”, the crux of the preceding codal articles, remains viable. See
5 Records of the Louisiana Constitutional Convention of 1973:
Convention Transcripts 328.

Any objections to a candidacy must be brought by a qualified elector in an

election for an office in which the plaintiff is qualified to vote. La.R.S. 18:1401(A).

An objection may be based on any of the grounds in La.R.S. 18:492(A), including

that “[t]he defendant does not meet the qualifications for the office he seeks in the

primary election.” La.R.S. 18:492(A)(3).

The supreme court explained the burden of proof applicable to challenges of

a candidate’s qualifications, specifically domicile:

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.
See Becker v. Dean, 03–2493, p. 7 (La.9/18/03), 854 So.2d 864, 869;
Russell v. Goldsby, 00–2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051;
Dixon v. Hughes, 587 So.2d 679, 680 (La.1991); Messer v. London, 438
So.2d 546 (La.1983). 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. Becker, 03–2493 at 7, 854 So.2d
at 869; Pattan v. Fields, 95–2375 (La.9/28/95), 661 So.2d 1320.
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 “so as to promote rather than defeat
candidacy.” Becker, 03–2493 at 7, 854 So.2d at 869; Russell, 00–2595
at 4, 780 So.2d at 1051; Dixon, 587 So.2d at 680. Any doubt concerning
the qualifications of a candidate should be resolved in favor of allowing
the candidate to run for public office. Becker, 03–2493 at 7, 854 So.2d
at 869; Russell, 00–2595 at 4, 780 So.2d at 1051; Dixon, 587 So.2d at
680.

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Landiak v. Richmond, 05-758, pp. 6-7 (La. 3/30/05), 899 So.2d 535, 541.

The plaintiff must present sufficient evidence to show the existence of a

contested fact, in this case the fact that Mr. McKellar has not been domiciled in

District 38 for one year at the time of qualification for office. If the plaintiff

establishes this prima facie case, the burden shifts to the defendant to present

sufficient evidence to rebut the plaintiff’s evidence. Landiak, 899 So.2d 535.

DISCUSSION

At the outset, we note that Mr. McKellar argues that the trial court committed

legal error, and that we should review this case without applying the deference

afforded under the manifest error standard of review. He cites Williford v. Grady,

96-1040 (La.App. 3 Cir. 8/5/96), 688 So.2d 1072. In that case, the defendant

qualified to be a candidate for district attorney in Grant Parish. The defendant moved

to Grant Parish to work as an assistant district attorney in November 1992. While

the defendant lived in a rented house in Grant Parish, his wife lived in Baton Rouge

to complete her degree at LSU. The defendant often spent time with her in Baton

Rouge, commuting to Colfax for work. In December 1993, the defendant went to

work in Livingston Parish and gave up his residence in Grant Parish. He returned to

Grant Parish in January 1995 to work at the district attorney’s office and moved into

a house in Grant Parish. The trial court found that he did not qualify as he would

not have resided in Grant Parish for two years preceding the election as required by

La.Const.Art. V, § 26(A) and La.R.S. 16:1(A). In affirming the judgment of the trial

court, this court stated:

This is not a manifest error case. The factual questions arising as
a consequence of this challenge to appellant’s qualifications to run for
the district attorney’s office are not at issue. The facts are uncontested
that appellant moved to Grant Parish in 1992 and continued to live there
until his move to Livingston Parish in January of 1994. No one
questions appellant’s residence in Grant Parish after 1992 and prior to
January of 1994. Nor is there a question that throughout 1994 appellant
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resided in Livingston Parish. Both sides recognize that during that year
appellant had no address in Grant Parish other than the post office box
in Colfax (the parish seat) rented for the use of the Grant Parish District
Attorney's Office. What is before us is a question of law.

Williford, 678 So.2d at 1073-74.

Mr. McKellar argues that there are no contested issues of fact in this case. He

admits that he established residency and domicile at the home in Calcasieu Parish in

2015, where he remained until the home was destroyed and he was displaced by

Hurricane Laura in August 2020. While he continued to operate his business in Lake

Charles and engaged a contractor to repair the home there, he resided with various

friends and family until October 2021, when he moved in with Ericka. He moved

his belongings from the Calcasieu Parish home to a building he placed at the

Glenmora home in January 2022. He married Ericka in March 2022. He listed the

Calcasieu Parish home for sale in January 2023. He changed his voter registration

and his driver’s license address to the Glenmora address in February 2023. He

moved his homestead exemption to Rapides Parish in April 2023 as his home in

Glenmora was nearing completion, and he cancelled the homestead exemption in

Calcasieu Parish. While he admits that he did vote in the congressional election in

November 2022 in Calcasieu Parish, he argues that that uncontested fact does not

establish his intent to be domiciled in Calcasieu Parish. Mr. McKellar argues that

none of these facts are disputed, and the only issue before this court is the legal

significance to apply to those facts.

Mr. McKellar additionally points out that the plaintiffs and the trial court all

agree that he was domiciled in Rapides Parish by December 2022 or February 2023.

He argues the trial court committed legal error in finding that he was actually

domiciled in Calcasieu Parish with any finding that he had a residence in Calcasieu

Parish after August 2020. He cites Williford, 688 So.2d at 1075, which stated:

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In supporting the trial court’s legal conclusions in this case,
appellee cites this court to numerous cases which discuss the legal
requirements necessary for a determination of whether a person has a
residence in a particular voting district. In each of the cases upon which
appellee relies, the courts noted that the prerequisite for finding a
residence is the person’s having a place of abode. See, for instance,
Soileau v. Board of Sup'rs, St. Martin Parish, 361 So.2d 319 (La.App.
3 Cir.1978), [citing with approval Williamson v. Village of Baskin, 339
So.2d 474, 476 (La.App. 2 Cir.), writ denied, 341 So.2d 1126
(La.1977), stating “There must be actual, physical use or occupation of
quarters for living purposes before residence is established”].

Essentially, he argues that even if his act of voting in Calcasieu Parish in November

2022, maintaining homestead exemption in Calcasieu Parish until April 2023, and

running his business and receiving mail at his home in Calcasieu Parish evidence an

“intent to remain” in Calcasieu Parish, there is no evidence of him using the

Calcasieu Parish home as a “place of abode.” [mjc: I will note that his wife testified

that they did sleep in the house one night, though it is unclear if that was before or

after they were married.] Even if we discount the testimony of the contractor Mr.

Sarver, who said Mr. McKellar told him he did not intend to remain in the home in

Calcasieu Parish, he argues that intent to remain alone is insufficient to establish

domicile.

We reject Mr. McKellar’s argument and find that the proper standard of

review is manifest error. Domicile and residency are questions of fact, which a court

of appeal reviews pursuant to the manifest error/clearly wrong standard. Thomas v.

Lartigue, 22-517 (La.App. 3 Cir. 8/11/22), 348 So.3d 123, writ denied, 22-1234 (La.

8/17/22), 344 So.3d 65. Thus, after reviewing the record in its entirety, we will not

reverse the trial court’s reasonable factual findings that are supported by the record.

Stobart v. State, 617 So.2d 880 (La. 1993).

After reviewing the record in its entirety, we find that Mr. McKellar did not

indicate an intent to change his domicile until after August 10, 2022. The trial court

found that Mr. McKellar evinced an intent to maintain his domicile in Calcasieu
9

Parish by voting in Calcasieu Parish in November 2022, failing to change his address

on his driver’s license until February 2023, failing to change his voter registration to

Rapides Parish until February 2023, and maintaining his homestead exemption in

Calcasieu Parish until April 2023. We find no manifest error in that factual finding.

The judgment of the trial court is affirmed.

CONCLUSION

The judgment of the trial court disqualifying Mr. McKellar as a candidate for

State Representative for District 38 in the October 14, 2023 primary election is

affirmed. Costs of this appeal are assessed to Mr. McKellar.

AFFIRMED.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

23-531

GWEN FONTENOT, ET AL.

V.

TODD P. MCKELLAR

Stiles, J., dissents and assigns reasons.

I respectfully dissent.

In Becker v. Dean, 03-2493, pp. 6-7 (La. 9/18/03), 854 So. 2d 864, 869, the

supreme court stated:

There is nothing more fundamental to our society than the ability
of our electorate to choose its leaders. The purpose of the election
process is to provide the electorate with a wide choice of candidates.
Williams v. Ragland, 567 So.2d 63 (La.1990). See also Roe v. Picou,
361 So.2d 874 (La.1978); Jumonville v. Jewell, 317 So.2d 616
(La.1975); Langridge v. Dauenhauer, 120 La. 450, 45 So. 387 (1908).
Because encouraging qualification is an integral component of the
process, laws regulating the process must be interpreted with this
purpose in mind. Williams, 567 So.2d at 66. Thus, the interests of the
state and its citizens are best served when election laws are interpreted
so as to give the electorate the widest possible choice of candidates. See
Rich v. Martin, 259 So.2d 113 (La.App. 1 Cir.1971).

In this case, the evidence shows that (1) the defendant lived continuously in

Rapides Parish from October 31, 2021 to the present; (2) the defendant’s residence

in Lake Charles was uninhabitable from August 2020, when Hurricane Laura made

landfall, until approximately April 2023; and (3) the defendant lived with his wife

continuously in the boundaries of House District 38 from the March 25, 2022, until

the present. The evidence was undisputed that the defendant resided in Rapides

Parish without interruption from October 31, 2021, until the date of his qualification.

In order to establish a domicile, there must first be a habitable residence. The

only habitable residence the defendant could have made his domicile for the year

preceding his qualification was in Rapides Parish. Considering the legal requirement

that we view the evidence in the light most favorable to candidacy, I find the trial

court was manifestly erroneous in its judgment. I find the defendant has met the

qualifications to be a candidate for House District 38 at the October 14, 2023 primary

election.

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