Sellar v. Nance

336 So.3d 103

Michael M. SELLAR, Plaintiff-Appellee

v.Donald "Don" NANCE, et al., Defendants-Appellants

No. 54,617-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered March 1, 2022

PELICAN LAW, LLC, By: Jacob D. Rennick, Counsel for Appellant, Donald "Don" Nance

NEWMAN, OLIVEAUX & MAGEE, LLP, By: Todd G. Newman, Monroe, Counsel for Appellee, Michael M. Sellar

Before MOORE, STONE, and COX, JJ.

COX, J.

This suit involves the disqualification of a candidate for the seat of Mayor of the City of West Monroe on grounds that the candidate was not a qualified elector and did not meet the residency requirement for the office. Appellant, Donald "Don" Nance ("Nance"), appeals the ruling of the trial court disqualifying his candidacy in the March 26, 2022, election. Appellee, Michael M. Sellar ("Sellar"), has answered the appeal, seeking frivolous appeal damages. For the following reasons, we affirm the trial court's judgment and deny the Appellee's request for frivolous appeal damages.

FACTS

On January 26, 2022, Nance filed a notice of candidacy for Mayor of the City of West Monroe in which he listed his address as 2510 North 10th Street, within the City of West Monroe in Precinct 37. It is undisputed that at the time of his qualification, Nance was also registered to vote at the North 10th Street residence, while maintaining his homestead exemption at a second residence he owned on 103 Love Street, in the unincorporated area of Ouachita Parish and outside of the city limits of the City of West Monroe in Precinct 32.

On January 31, 2022, in accordance with La. R.S. 14:1401, Sellar, a qualified voter, filed a petition to object to the candidacy of Nance. Sellar alleged that Nance was not a qualified elector of the City of West Monroe and had not been a resident of the city for one year prior to his qualification. The basis of Sellar's first claim related to the two residences that Nance owned. Sellar argued that statutory law mandated registered voters to vote only in the precinct where a homestead exemption was claimed, and that in his notice of candidacy Nance falsely swore under oath that he was registered to vote in the precinct where he claimed a homestead exemption. Sellar also alleged that Nance had never previously voted in an election in the City of West Monroe. For these reasons, Sellar argued that Nance was not a qualified elector in the City of West Monroe. Sellar also argued that Nance and his wife actually resided at the Love Street address since 2011 and purchased the North 10th Street residence in August 2020, but did not live there. Thus, Sellar challenged Nance's residency in the City of West Monroe at the time he qualified to run for mayor.

Nance answered the petition and asserted that he established his residence at the North 10th Street location in late October or early November 2020, when he moved into the home at that location with the intent to remain there indefinitely. Nance also argued that his maintenance of a homestead exemption on the Love Street residence was not a factor in determining his qualification as a mayoral candidate or in proving actual physical residence.

The matter was tried on February 5 and 6, 2022. Sellar presented the testimony of seven witnesses, and introduced 29 exhibits into evidence. The Ouachita Parish Registrar of Voters confirmed that Nance registered to vote at the North 10th Street residence in Precinct 37 on July 21, 2021, and was formerly registered at the Love Street residence in Precinct 32 since 2012. Nance's July 21, 2021, voter registration application, which was signed by him, was admitted into evidence. Paragraph 3 of this form required the applicant to list their residence address and clearly instructed that this address "must be address where you claim homestead exemption." The Ouachita Parish Tax Assessor affirmed that Nance claimed his homestead exemption on the Love Street residence in March 2011, and that it had not changed. This property included a 2517 square-foot home. The Tax Assessor also testified that Nance acquired the North 10th Street property on August 11, 2020, but that all communications from the tax assessor's office to Nance were mailed to the Love Street address. This property included an 896 square-foot residence. The Director of Finance and City Clerk for the City of West Monroe testified and identified the majority of exhibits introduced into evidence by Sellar to support his claims.

These exhibits included documentation showing that in 2021, Nance utilized his Love Street address on items such as his utilities customer account card, tax documents from 2020 and 2021, 2020 and 2021 permit applications, occupational license applications, garbage and sewer records, medical insurance, a 2021 workers’ compensation claim, and utility billing. Documentation also showed that Nance did not obtain garbage service for the North 10th Street address until April 13, 2021, and then changed his address for that service as well as his water service to the North 10th Street address. Exhibits showed that Nance changed his utility account for the North 10th Street address from Don Nance Properties (Nance's rental business) to Don Nance on July 19, 2021.

Sellar presented testimony and introduced evidence regarding water usage at both the North 10th Street and Love Street residences. Sellar introduced various graph depictions of daily and monthly water usage at the North 10th Street residence from October 2020 through January 2022, which reflected sporadic and inconsistent water usage at that location during 2021. With the stipulation of Nance, Sellar introduced into evidence the Greater Ouachita Water Company records of the Love Street address from June 2020 through the date of trial. These documents show consistent water usage at the Love Street home. An employee of the West Monroe Code Enforcement testified that in late October 2020, she noticed daily water usage at the North 10th Street property when no account had been activated and contacted Nance about it. At that time, Nance told the witness that his son-in-law and daughter were living at the North 10th Street property. The witness's notes regarding this event were introduced into evidence.

Dana Benson, the Ouachita Parish Clerk of Court, was called to testify on behalf of Sellar. She identified a January 18, 2022, cash deed involving Nance, who listed his home address as the Love Street address. Benson identified a second cash sale deed of August 11, 2020, in which Nance listed his address as the Love Street residence. Benson identified an "assumed name certificate," dated September 23, 2020, which also reflected the Love Street residence as Nance's address. These exhibits were introduced into evidence.

Benson identified a blank candidacy form like the one Nance approved to qualify for candidacy. Benson testified that a candidate fills out the form and brings it to her office where "they do their attestation to the fact that it's true and correct." On the record, Benson read item number 8 from the form whereby a candidate attested to the fact that if a homestead exemption was claimed on a residence, the candidate was "registered and voted in the precinct in which the residence is located," unless residing in a nursing or veterans’ home. Benson testified that she personally saw Nance sign a candidacy form and identified his name on the bottom of Nance's actual form. Benson did not ask Nance any questions about his homestead exemption, but "printed the form out then we handed it to him to look at and to verify that it was correct and then we did the attestation." Benson stated that Nance signed it, she notarized it, and "had two witnesses and handed him back a copy." Benson stated that Section 14 of the form stated that "all the statements contained herein are true and correct." Benson identified a copy of a photograph of Nance "doing his attestation." During that event, Benson asked Nance to swear that the contents of the candidacy form were true and correct to the best of his ability, knowledge, and belief. These exhibits were also introduced into evidence.

Nance testified on his behalf, stating that he purchased the North 10th Street property in August 2020 and moved into the house in late October or early November 2020. He testified that he owned the Love Street residence for 11 years and admitted that he "still" claimed his homestead exemption on the Love Street house. Nance testified that he claimed North 10th Street as his primary residence although he listed the Love Street location as one of his residences. Nance explained that he did not have garbage service at the North 10th Street address when he first obtained the property because he carried the trash in his truck to a cigar business he owned nearby. With regard to the lack of use of electricity at that location, Nance explained that he spent "a lot of time at the cigar shop." Nance stated that his wife, daughter, son-in-law, and two grandchildren live with him at the North 10th Street residence, even though it is much smaller than the Love Street residence. Nance further explained that he did not change his drivers’ license to reflect the North 10th Street residence in July 2021, because he was a very busy individual. Nance stated that "the lady at the driver's license" office asked him if he wanted to change his voter registration, and he agreed to do so. Nance testified that he still got mail at the Love Street address because he is there often and his two daughters live there. Nance had a vintage vehicle he stored in the garage of the Love Street address.

Nance explained that he talked about his candidacy with the clerk of court about a year prior to his qualifying. At that time, he had no understanding "that the homestead exemption would be an issue."

On cross-examination, Nance identified his qualification form and admitted that he signed it. Nance read "number eight in that list," on the record. Nance testified that he...