Schindler v. Russ

346 So.3d 309

Karen SCHINDLER

v.Derek T. RUSS and The Honorable Darren Lombard

NO. 2022-CA-0533

Court of Appeal of Louisiana, Fourth Circuit.

AUGUST 8, 2022, AT 11:00 AM¹

Kenneth C. Bordes, ATTORNEY AT LAW, 4224 Canal Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT, Karen Schindler

Ernest L. Jones, ATTORNEY AT LAW, 2317 Canal Street, New Orleans, LA 70119, COUNSEL FOR DEFENDANT/APPELLEE, Derek T. Russ

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Dale N. Atkins )

Judge Dale N. Atkins

This is an election candidacy challenge regarding domicile. Appellant, Karen Schindler (hereinafter "Ms. Schindler"), appeals the trial court's August 3, 2022 judgment, which denied her objection to the candidacy of Appellee, Derek T. Russ (hereinafter "Mr. Russ"), for the position of Judge, Municipal and Traffic Court, Division D, in Orleans Parish. For the following reasons, we affirm the trial court's judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mr. Russ’ July 20, 2022 Notice of Candidacy

On July 20, 2022, Mr. Russ signed a "State of Louisiana - Notice of Candidacy (Qualifying Form)" (hereinafter "Qualifying Form") for the office of Judge, Municipal and Traffic Court, Division D, in Orleans Parish. On the Qualifying Form, Mr. Russ listed his domicile address as 2531 Pauger Street, New Orleans, LA, 70116 (hereinafter "Pauger Address"). He listed his mailing address as 700 Camp Street, New Orleans, LA, 70130. Further, he attested that he is a "duly qualified elector" for the Parish of Orleans.

Ms. Schindler's July 29, 2022 Petition Objecting to Candidacy of Derek T. Russ

On July 29, 2022, Ms. Schindler filed a "Petition Objecting to Candidacy of Derek T. Russ" (hereinafter "Petition") for judge.² In the Petition, Ms. Schindler sought to disqualify Mr. Russ from the primary election scheduled for November 8, 2022. Ms. Schindler alleged that "[s]ince about 2006, over 16 years, [Mr.] Russ has been domiciled at 2439 Oxford Pl, Terrytown, LA 70056 [(hereinafter "Oxford Address")], where he remains currently domiciled with his wife and children at present." The Petition further provided that Mr. Russ is domiciled in Jefferson Parish, not Orleans Parish. "Because [Mr.] Russ [ ] is not domiciled in the Parish of Orleans, and/or has not been domiciled in the Parish of Orleans for the time required to qualify for the office sought, [Ms. Schindler sought] a [j]udgment ... disqualifying [Mr.] Russ as a candidate for the primary election."

Mr. Russ’ August 3, 2022 Motion to Dismiss Petition Objecting to Candidacy

On August 3, 2022, Mr. Russ filed a "Motion to Dismiss Petition Objecting to Candidacy" (hereinafter "Motion to Dismiss"). Therein, Mr. Russ contended that because Ms. Schindler's Petition did not contain a proposed order to set the matter for a hearing, it "was, therefore, defective, incomplete, misleading and made it impossible for the [trial court] to comply with the mandate of [La. R.S.]18:1409^{[3 ]} that the trial should be commenced before 10[:00] a.m. on the fourth day after suit was filed." The trial court considered Mr. Russ’ Motion to Dismiss and Ms. Schindler's Petition at an August 3, 2022 hearing.

August 3, 2022 Hearing

On August 3, 2022, the trial court held a hearing on Ms. Schindler's Petition and Mr. Russ’ Motion to Dismiss. The trial court denied the Motion to Dismiss and proceeded to take testimony regarding the issue of Mr. Russ’ domicile.

Exhibits Filed by Ms. Schindler

In support of her Petition, Ms. Schindler filed five exhibits, which were admitted into evidence. One of the exhibits is a Collateral Mortgage document, which is dated November 8, 2007, and the "Mortgager" section listed Mr. Russ and the Oxford Address. Additionally, the Collateral Mortgage document stated that "[p]ersonally came and appeared ... [Mr.] Russ, a person of the full age of majority, domiciled and residing in the Parish of JEFFERSON, State of Louisiana, whose mailing address is [the Oxford Address]." Mr. Russ signed the Collateral Mortgage document. Another exhibit was a Federal Housing Administration Loan Modification Agreement (hereinafter "FHA Loan Modification Agreement"). It listed the effective date as February 1, 2021, and it was signed by Mr. Russ on July 8, 2021. The FHA Loan Modification Agreement provided that it "amends and supplements" a September 16, 2006 mortgage and note for the Oxford Address. It did not contain the recitation from the Collateral Mortgage document that Mr. Russ was "domiciled and residing" in Jefferson Parish at the Oxford Address. Ms. Schindler also filed a December 23, 2020 Registration Certificate for a 2020 Chevrolet vehicle.⁴ In the "Owner's Name" section of the certificate is Mr. Russ’ name and the Oxford Address; however, the address to which the December 23, 2020 Registration Certificate was mailed was the Pauger Address. Ms. Schindler's filed a Vehicle Registration Document regarding a 2020 Chevrolet, and the "Title Holder[ ]" section of the document listed Mr. Russ and the Pauger Address. The registration was dated from April 7, 2021, to October 31, 2022. Additionally, Ms. Schindler filed Mr. Russ’ Qualifying Form.

Exhibits Filed by Mr. Russ

At the August 3, 2022 hearing, Mr. Russ filed six exhibits, which were admitted into evidence. He filed a "Voter Information Report" from the Louisiana Secretary of State with his name on it and a voter registration date of October 28, 1996. The Voter Information Report listed Mr. Russ’ residence address as the Pauger Address. Additionally, Mr. Russ filed his Driver's License, which listed the Pauger Address and had an issuance date of April 10, 2022. He also filed an April 19, 2022 Registration Certificate for a 2022 Chevrolet Tahoe. In the "Owner's Name" section of the April 19, 2022 Registration Certificate was Mr. Russ’ name and the Pauger Address; and, the address to which the April 19, 2022 Registration Certificate was mailed is the Pauger Address. Mr. Russ filed a "Verification of Insurance" form from Progressive Direct Auto pertaining to a 2022 Chevrolet Tahoe for a policy period of July 10, 2022, through January 10, 2023, with an effective date of July 10, 2022. The Verification of Insurance listed Mr. Russ as an insured driver and his address as the Pauger Address. Finally, Mr. Russ filed a document dated July 25, 2022, from the Jefferson Parish Assessor's Office. It listed Mr. Russ as the owner of the Oxford Address, but it stated that Mr. Russ does not have Homestead Exemption Status for the Oxford Address. Last, Mr. Russ filed a "Louisiana Voter Registration Application," which is dated December 23, 2020. It listed Mr. Russ as the applicant and his residence as the Pauger Address; but it was not signed by Mr. Russ. In addition to admitting the aforementioned exhibits into evidence, the trial court heard the following testimony.

Testimony

At the August 3, 2022 hearing, Mr. Russ provided the Pauger Address to the court reporter. He testified that "[he has] always been domiciled at [the Pauger] [A]ddress," though "[he has/had] a number of residences." Mr. Russ answered affirmatively when asked whether he understood the difference between domicile and residency. He described the Pauger Address as a "family property" and a "family home that has always been available." Mr. Russ stated that he "grew up" at the Pauger Address and has "lived there all [his] life off and on," including during elementary, high school, and his vacation breaks during law school.⁵ Mr. Russ testified that he purchased the Oxford Address in 2006 and that his mother moved into the house "around 2017 [or] 2018." Counsel for Ms. Schindler asked Mr. Russ if he changed his domicile to the Oxford Address in 2017; and Mr. Russ responded "maybe in 2017 before my mom moved in that is possible" but also stated that "[his] testimony is that [the] Pauger [Address] has always been [his] domicile."

According to Mr. Russ, in 2020, he began having conversations with his family about his desire to eventually run for a judgeship in Orleans Parish. When counsel for Ms. Schindler asked Mr. Russ how long he has been domiciled at the Pauger Address, Mr. Russ responded, "[p]rior to my back surgery," and he stated that he had back surgery in "August [ ] 2020." He testified that "some time before [his] back surgery is when [he] changed [his] domicile back to [the] Pauger [Address,]" and he reiterated that "it has always been a family home."

Counsel for Ms. Schindler asked Mr. Russ about his domicile location in 2019, and the following colloquy occurred regarding his vehicle registration:

Q. Were you domiciled in Orleans in 2019?

A. 2019.

Q. 2019?

A. 2020.

Q. What did you do to change that domicile status from 2019 to 2020?

A. Well, I had a conversation with my family. That was around the time when I purchased the 2020 suburban so all of my registration and license [were] reflective of the [Pauger A]ddress.

Q. That [was not] until 2021, correct?

A. No. That was actually in 2020....

A. I registered my vehicle in 2020 and when we went to the [Department of Motor Vehicles] ... what I did was I changed my official domicile in terms of the paperwork. As I indicated ... when I had the surgery in August I was living on Pauger Street prior to that.

....

A. 2020 is when I had my vehicle registered.

Q. At [the] Oxford [Address] in Jefferson [Parish]?

A. On Pauger.

....

Q .... When you purchased the vehicle they did not ask you what address [ ] you wanted to register your vehicle at?

A. Yes. It was New Orleans.

Q. Where did they get the Oxford Street address from?

A. From the address -- probably from -- I [do not] know the previous vehicle.

....

A .... [W]hen I went to get [a] brake tag in Orleans Parish that is when I found out there was an issue with the registration.

Counsel for Ms. Schindler also showed Mr. Russ the FHA Loan Modification Agreement. Mr. Russ testified as follows:

Q. Do you recall in 2006 applying for a loan for the Oxford Street

...