text:
    Ozzie GILLISLEE, Appellant, v. FLORIDA DEPARTMENT OF REVENUE obo Lashonda Miracle Hamilton, Appellee.
    No. 1D14-0407.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2015.
    As Corrected Jan. 20, 2015.
    Ozzie Gillislee, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In the proceeding below, the mother of the Appellant’s child petitioned for child support from the Appellant. The Appellant raises numerous issues on appeal. None of these issues were preserved and, as such, must be reviewed for fundamental error. See Saka v. Saka, 831 So.2d 709, 711 (Fla. 3d DCA 2002) (“Fundamental error, which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.”). We affirm as to all the issues except the issue regarding retroactive support, which we reverse and remand to the Florida Department of Revenue (the Department) in accordance with the below.

Based on evidence provided by the mother, the Department determined that the Appellant owed 31 months of retroactive child support. However, in determining the amount of retroactive support owed, the Department failed to include any child support payments made by the Appellant during that 31-month time period. Failing to include this amount was error. See § 61.30(17)(b), Fla. Stat. (July 2012); Ditton v. Circelli, 888 So.2d 161, 163 (Fla. 5th DCA 2004) (holding that the court erred when it failed to credit the father for four monthly child support payments made in its calculation of retroactive child support). Because this error goes to the foundation of this case, it is fundamental. This Court reverses the portion of the order determining retroactive child support and remands the order to allow the Department to include the prior child support payments.

REVERSE AND REMAND.

ROBERTS, MARSTILLER, and SWANSON, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Therand Guy THACKER.
    No. 2014-KO-0418.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   PER CURIAM.

| TWrit granted. Defendant was convicted of two counts of sexual battery, attempted aggravated rape, six counts of aggravated incest, and obstruction of justice. On appeal, he contended that there was insufficient evidence to support the convictions for the sex offenses because the victims’'testimony was inconsistent and uncorroborated by physical evidence. The court of appeal affirmed the convictions because it determined that the evidence sufficed under the standard of Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979).

In reviewing defendant’s claim that the sentence for attempted aggravated rape was unconstitutionally excessive, however, the court of appeal found that it was unable to determine the victim’s age at the time of this offense from the record. See State v. Thacker,13-0516, pp. 15-16 (La.App. 3 Cir. 1/22/14), 130 So.3d 1037, 1047-48. The court of appeal correctly noted that if the victim was not under the age 1 gof 13 at the time ■ of the offense was perpetrated then the evidence would not support a conviction for attempted aggravated rape in accordance with La. R.S. 14:42(A)(4). Nonetheless, the court of appeal did not address this issue further because “[tjhis concern was not raised by the Defendant in his briefs to this court.” Id., 13-0516 at 16,130 So.3d at 1048. Similarly, in considering whether defendant’s sentence for obstruction of justice was unconstitutionally excessive, the court of appeal indicated that it was unable to determine the factual basis of this conviction but did not consider whether sufficient evidence was presented to support this conviction because defendant did not raise the issue. Id., 13-0516 at 21, 130 So.3d at 1050.

When the state’s case is devoid of evidence of an essential element of the charged offense, the conviction and sentence must be set aside “regardless of how the error is brought to the attention of the reviewing court.” State v. Raymo, 419 So.2d 858, 861 (La.1982). The court of appeal thus erred in failing to consider the issue of sufficiency further once it came to the court’s attention. In addition, the court of appeal’s decree requires clarification. The court of appeal rejected defendant’s claim that the sentence for attempted aggravated rape is unconstitutionally excessive. However, in its decree, the court of appeal vacated this sentence. Accordingly, the application is granted to vacate the court of appeal opinion and remand the matter to the court of appeal for reconsideration consistent with State v. Raymo, swpra. The court of appeal is further directed to clarify the decree.

KNOLL, J., would deny.


text:
    Julia B. VOINCHE, et al. v. Joseph Beaud CAPPS, et al.
    No. 2014-CC-1498.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   PER CURIAM.

[, Plaintiffs filed suit against Travelers Property Casualty Company of America (“Travelers”) in its capacity as the uninsured/underinsured (“UM”) carrier for Gilchrist Construction Co. (“Gilchrist”). Travelers moved for summary judgment, relying on a UM rejection form signed by Joseph Johnson on behalf of Gilchrist. The district court denied summary judgment, and the court of appeal denied Traveler’s application for supervisory writs. Travelers’ application to this court followed.

Plaintiffs do not contest the form of the UM rejection. Instead the sole issue presented is whether Mr. Johnson had authority to sign the rejection on behalf of Gilchrist.

We have held an insurer may establish by affidavit that ah employee is authorized to reject UM coverage on behalf of a corporation. See Harper v. Direct General Insurance Co. of Louisiana, 08-2874 at p. 3 (La.2/13/09), 2 So.3d 418, 420 (“Liberty Mutual has further established through an unrefuted affidavit that Mr. Jenchel is the Director of Risk Management for Sears, and was authorized to reject UM coverage on behalf of Sears”).

In the instant case, Travelers produced an affidavit from Gilchrist’s president, David R. “Randy” Gilchrist, which stated Mr. Johnson “was duly authorized to act as Gilchrist’s agent for the purpose of rejecting and waiving UM coverage on the aforesaid policy on behalf of Gilchrist.... ” In opposition, plaintiffs simply argued Mr. Johnson testified in his deposition that he did not discuss UM coverage with the | company’s owners and was not aware of any document which exists to show he had authority to sign the UM waiver. This testimony does not establish Mr. Johnson lacked authority to execute the UM rejection.

Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of material facts in dispute mandates the granting of the motion. La.Code Civ. P. art. 967; Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

Accordingly, the writ is granted. The judgment of the district court is reversed, and summary judgment is hereby rendered in favor of Travelers Property Casualty Company of America.


text:
    STATE of Louisiana v. Denise M. FAGGIN.
    No. 2014-K-0326.
    Supreme Court of Louisiana.
    Oct. 24, 2014.
   PER CURIAM.

|, Granted. The trial court erred in granting defendant’s motion to quash her pending prosecution for possession of hydroco-done in violation of La.R.S. 40:967(0(2), and the court of appeal erred in affirming that ruling. State v. Faggin, 13-0617 (La. App. 4 Cir. 1/15/14), 2014 WL 529957 (Bagneris, Lombard, JJ., Lobrano, J. dissenting) (unpub’d).

As a general rule, “[t]he motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i. e. those matters which do not go to the merits of the charge.... While evidence may be adduced, such may not include a defense on the merits.” State v. Perez, 464 So.2d 737, 739 (La.1985). The legislature has made an exception to that rule in La. C.Cr.P. art. 532(10), which provides as a general ground for a motion to quash that “[t]he individual charged with a violation of the Uniform Controlled Dangerous Substances Law has a valid prescription for that substance.” An individual claiming possession of a valid prescription for any controlled substance in fact has a duty “to produce sufficient proof of a valid prescription to the appropriate prosecuting office” by way of, for | ¡.example, “the original prescription bottle with the defendant’s name, the pharmacist’s name, and prescription number,” La.R.S. 40:991(A), and he or she must raise the defense before trial by way of a motion to quash. La.R.S. 40:991(C).

In the present ease, defendant claims as a basis for quashing the prosecution not that the prescription for hydro-codone was in her name but that she was retrieving the pills on behalf of the holder of a valid prescription for the drugs whom she identified as her live-in partner. Although the arrest register and various bail forms filed into the record raise some question whether defendant and the prescription holder resided at the same address at the time of her arrest, we agree with Judge Lobrano in any event that “defendant’s statement that she was retrieving the controlled dangerous substance for [her partner], who was a member of her household and had a valid prescription for hydrocodone, is not a ground on which to assert a motion to quash under La.C.Cr.P. art. 532(1) [because] art. 532(10) requires the individual charged, ie., the defendant, to have a valid prescription.” Faggin, 13-0061 at *3 (Lobrano,- J., dissenting). Defendant’s claim she lived with the holder of the prescription and acted as an agent for him in retrieving the pills on his behalf, and thus did not have possession of the pills for her own use when arrested, is in the nature of a defense on the merits for a fact finder at trial. Cf La.R.S. 37:1164(10) (For purposes of Louisiana’s Pharmacy Practice Act, the term “dispense” “[m]eans the interpretation, evaluation, and implementation of a prescription drug order, including the preparation and delivery of a drug or device to a patient or patient’s agent in a suitable container appropriately labeled for subsequent administration to, or use by, a patient .... [and] necessarily includes a Istransfer of possession of a drug or device to the patient or the patient’s agent.”) (emphasis added); State v. Love, 06-0539, p. 6 (La.App. 4 Cir. 12/6/06), 947 So.2d 161, 165-67 (“Assuming that [defendant’s sister] was telling the truth when she testified that the defendant was in possession of the drugs solely to deliver them to her at her request because she had failed to take them with her when she moved a month before, it appears that the defendant did not commit the offense [possession of oxycodone] with which he was charged. However, the jury apparently rejected the testimony of Ms. Love and thus the defendant’s reasonable hypothesis of innocence.”).

JOHNSON, C.J., dissents.


text:
    In re COMMITTEE ON BAR ADMISSIONS CFN-3463.
    No. 2014-BA-1042.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   ON APPLICATION FOR REHEARING

PER CURIAM.

|! Petitioner applied to sit for the July 2010 Louisiana bar examination. The Committee on Bar Admissions (“Committee”) denied his application, citing four criminal charges: (1) petitioner’s arrest in March 2001 stemming from an altercation with his parents, in which he was charged with two counts of attempted first degree murder, and subsequently pleaded guilty to simple battery and aggravated assault; (2) his arrest in August 2005 for simple assault, resisting an officer, and battery of a police officer; (3) his May 2009 arrest for public drunkenness and public intimidation; and (4) his August 2009 arrest for resisting an officer. We subsequently allowed petitioner to sit for the bar exam, with the condition that upon successfully passing the exam, he apply for the appointment of a commissioner to take character and fitness evidence.

After petitioner successfully passed the bar exam, and on his application, we appointed a commissioner. The commissioner conducted a hearing, but following the hearing, petitioner and the Committee submitted a joint stipulation agreeing that petitioner should be admitted to the bar, subject to a one-year period of probation during which he would be required to complete an anger management program. The commissioner then filed his report with this court, adopting the joint stipulation as his recommendation.

After consideration of the entire record, we concluded that petitioner did not meet his burden of proving his good moral character and fitness to practice law. In |2addition to the extremely serious criminal conduct in which petitioner had engaged in the several years preceding his application to the bar, we were also concerned about his lack of candor in completing his law school applications, an issue revealed during petitioner’s sworn statement in the bar admission proceeding. Accordingly, on September 30, 2011, we denied petitioner’s application for admission to the practice of law.

In May 2014, petitioner filed his second application for admission. We denied that application on June 30, 2014.

Petitioner then filed a timely application for rehearing of the court’s June 30, 2014 judgment. Prior to any action by the court on the application for rehearing, petitioner filed a motion seeking leave to file a supplemental memorandum explaining why the court’s recent settlement agreement with the United States Department of Justice supports his application for admission to the bar. We granted petitioner’s motion, and petitioner filed a supplemental memorandum on September 30, 2014.

Having considered the supplemental memorandum, we now deny petitioner’s application for rehearing. Petitioner spends much of his application arguing he has adequately addressed his anger management and aggression issues. However, our decision to deny petitioner’s application for admission to the bar was not based on his mental health diagnosis. To the contrary, the record of these proceedings is replete with evidence that petitioner has engaged in violent conduct which has resulted in criminal consequences and reflects adversely on his good moral character. Additionally, petitioner has demonstrated a lack of candor during [sthe course of these bar admission proceedings. Petitioner’s conduct reveals a fundamental lack of moral fitness necessary for admission to the bar. These factors caused us to conclude that petitioner failed to meet his burden of proving that he had good moral character and fitness to practice law. See Supreme Court Rule XVII, § 5(D). Accordingly, we denied his petition for admission on September 30, 2011.

Petitioner’s current application sets forth no relevant change in circumstances regarding his character and fitness since we denied his application in 2011. See In re: Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065 (holding that once an applicant is denied admission to the bar, a subsequent application for admission will not be considered absent a “showing of facts relating to applicant’s character and fitness to practice law that have changed since this court denied [the] prior application.”). Accordingly, we decline to revisit our judgment of June 30, 2014 denying petitioner’s second application for admission. The application for rehearing is denied.

REHEARING DENIED.

KNOLL, J., dissents and would grant rehearing.

WEIMER, J., dissents.

HUGHES, J., dissents and would grant rehearing.

      . At the time petitioner submitted his law school application in 2007, he had been arrested twice; however, he admitted he did not disclose either of these arrests on his application. Thereafter, petitioner transferred to another law school, but disclosed only that he had been arrested in 2001 following a “verbal altercation” with his father which “became physical.” Petitioner did not disclose that he was charged with two counts of attempted first degree murder arising out of that incident, nor did he disclose his 2005 arrest for assault, resisting arrest, and battery of a police officer.

      . The primary change asserted by petitioner relates to his contention that his underlying anger management issues are now adequately controlled. However, as discussed earlier, our decision to deny petitioner’s admission was based on his pattern of conduct, not his mental health status.


author: PER CURIAM. VICTORY, J. CLARK, J.,

text:
    In re William Harrell ARATA.
    No. 2014-B-1695.
    Supreme Court of Louisiana.
    Oct. 31, 2014.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

' 11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, William Harrell Arata, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On April 5, 2012, respondent was arrested by agents of the U.S. Drug Enforcement Administration for possession of opiates, a felony. On April 9, 2012, respondent entered Palmetto Addiction Recovery Center to be evaluated. On that day, he provided a hair sample for drug testing and tested positive for cocaine and hydrocodone, an opiate. During the evaluation, respondent indicated that his drug of choice was Vicodin. He also admitted to smoking marijuana twice a week approximately every two weeks for pain relief and insomnia. Additionally, he indicated that he tried cocaine in college and did not try it again until March 2012, when he used it one time. At the conclusion of the evaluation on April 12, 2012, respondent was diagnosed with opioid dependence and cocaine abuse. Respondent subsequently entered a ninety-day recovery program at The Next Step at Pine Grove Behavioral Health & Addiction Services and successfully completed Lthe program in July 2012. On July 13, 2012, respondent signed a five-year recovery agreement with the Lawyers Assistance Program (“LAP”).

In July 2012, the ODC filed a petition in this court seeking respondent’s immediate interim suspension on the ground that he posed a threat to the public as a result of his April 5, 2012 arrest. In response to the petition, respondent admitted he had been arrested but denied he was a threat of harm to the public or his clients.

On July 27, 2012, we ordered respondent to show cause before a hearing committee why he should not be placed on interim suspension. The hearing committee conducted the hearing on September 13, 2012 and, on September 24, 2012, recommended to this court that the petition for interim suspension should be denied as respondent was not a threat of harm to the public. On October 12, 2012, we denied the petition for interim suspension. In re: Arata, 12-1729 (La.10/12/12), 99 So.3d 29. However, we further ordered that

respondent shall fully and completely adhere to all terms of the recovery agreement he executed with the Lawyers Assistance Program, and such other conditions as may be imposed upon him by the Lawyers Assistance Program. The Office of Disciplinary Counsel shall monitor respondent’s compliance with his recovery agreement and notify this court of any violation, which may be grounds for placing respondent on disability inactive status, or interim suspension, as appropriate.

Following his arrest, respondent was placed into a diversion program by the Washington Parish District Attorney’s Office. After successfully completing the diversion program in June 2013, the criminal charges against him were dismissed.

DISCIPLINARY PROCEEDINGS

In February 2013, the ODC filed formal charges against respondent, alleging that his conduct violated Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer) of the Rules of ^Professional Conduct. Respondent, through counsel, answered the formal charges, and the matter was set for a formal hearing before the hearing committee.

Respondent called several character witnesses to testify before the committee, including his AA sponsor, his substance abuse counselor, and Buddy Stockwell, the Executive Director of LAP. All of these witnesses testified that respondent is in full compliance with his LAP agreement. Respondent also testified on his own behalf and on cross-examination by the ODC. In his testimony, respondent admitted that he illegally received pain medication from a nurse on the day he was arrested, indicating that he used opiates without a prescription for a few months before his arrest. He also admitted to previously using cocaine and marijuana, indicating that he only used cocaine one time but used marijuana over a period of time to help manage his pain. He acknowledged the wrongfulness of his misconduct, accepted full responsibility, and expressed remorse. He also indicated that he is in compliance with his LAP agreement and, if he had known about LAP earlier, he would have voluntarily joined it sooner.

Hearing Committee Report

Considering the evidence and testimony presented at the hearing, the hearing committee found that respondent violated Rule 8.4(b) of the Rules of Professional Conduct. The committee further determined that respondent knowingly and intentionally violated duties owed to the legal profession. However, none of respondent’s clients were harmed and none complained. According to respondent, his clients have remained loyal, and his law practice has not suffered.

The committee also noted that respondent has taken an active role in AA meetings and is doing well in his current LAP agreement. Furthermore, respondent’s use of drugs and controlled medication was not disputed. According |4to respondent, his use of drugs was a result of lifelong pain and medical issues. Respondent also views his arrest as a positive occurrence in his life and is using it as a “wakeup call.”

In aggravation, the committee found that respondent’s behavior reflected negatively on the legal profession in that his criminal act made headline news in the local newspaper. Additionally, respondent admitted that he knew he was engaging in a criminal act but that he did not care because of his need for the drugs.

In mitigation, the committee found that the personal problems that caused respondent’s drug abuse have apparently been resolved, and he is making a good attempt at staying sober. Additionally, no client was harmed, and respondent’s legal practice does not appear to have been affected in any way. Furthermore, respondent is fully aware that self-medicating is not appropriate.

Under these circumstances, the committee recommended that respondent be suspended from the practice of law for three years, fully deferred, subject to the following conditions:

1. Respondent shall complete all terms and conditions of his LAP agreement;
2. Respondent shall sign a new five-year LAP agreement;
3. Respondent shall continue to attend AA for the same period of time;
4. Respondent shall bear all costs through completion during the required period of time; and
5. If respondent should violate any of the above conditions, then the deferment shall be rescinded.

Both respondent and the ODC objected to the hearing committee’s recommendation only in that it did not include a concurrent five-year period of probation to coincide with the new LAP agreement.

| ^Disciplinary Board Recommendation

After review, the disciplinary board determined that respondent admitted he engaged in criminal conduct as alleged by the ODC. As such, respondent violated Rules 8.4(a) and 8.4(b) of the Rules of Professional Conduct.

The board also determined that respondent knowingly and intentionally violated duties owed to the public and the legal profession. His conduct resulted in serious harm to the legal profession and potentially serious harm to his clients and the public. After considering the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the baseline sanction is suspension.

In aggravation, the board found a prior disciplinary record, a pattern of misconduct, and substantial experience in the practice of law (admitted 1995). In mitigation, the board found the following: full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, character or reputation, mental disability or chemical dependency including alcoholism or drug abuse, and remorse.

After further considering this court’s prior jurisprudence addressing similar misconduct, the board recommended that respondent be suspended from the practice of law for three years, fully deferred, subject to the requirement that respondent enter into a new five-year LAP agreement. The board further recommended that respondent be subject to a five-year period of probation to coincide with his new LAP agreement.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

| (¡DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Banks, 09-1212 (La.10/2/09), 18 So.3d 57. While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

In this matter, respondent admitted to illegally buying opiates. He also admitted to using marijuana approximately one to two times every two weeks and admitted to using cocaine one time in March 2012. In light of these admissions, respondent has violated the Rules of Professional Conduct as alleged.

Having found evidence of professional misconduct, we now turn to a determination of the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reís, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

We agree with the disciplinary board that respondent knowingly and intentionally violated duties owed to the public and the legal profession. His conduct resulted in harm to the legal profession and potential harm to his clients 17and the public. We also agree that the baseline sanction is suspension. The record supports the aggravating and mitigating factors found by the board.

In determining the appropriate sanction in this case, we begin with the well-recognized proposition that chemical dependency may cause an attorney to commit acts of professional misconduct that would not have occurred but for his impairment. Louisiana State Bar Ass’n v. Longenecker, 538 So.2d 156,163 (La.1988) (on rehearing). When there is an obvious causal connection between the substance abuse and the misconduct, and the attorney has made meaningful efforts to address his problem, we have often chosen to impose a more lenient sanction than would otherwise be called for. See, e.g., In re: Williams, 10-1972 (La.1/7/11), 52 So.3d 864 (attorney suspended from the practice of law for three years, with eighteen months deferred, for misconduct including his conviction of possession of cocaine; the attorney’s drug addiction contributed to his misconduct, but he sought treatment and signed a LAP contract); In re: Steinhardt, 04-0011 (La.9/9/04), 883 So.2d 404 (attorney suspended for three years, with two years deferred, following her conviction of possession of marijuana; the mitigating circumstances included her successful recovery from her marijuana addiction and her entry into a recovery agreement with LAP); In re: Doyle, 07-2015 (La.4/4/08), 978 So.2d 904 (baseline sanction for the attorney’s misconduct, including conversion of client and third-party funds, was unquestionably disbarment, but the mitigating circumstances surrounding his successful recovery from an addiction to drugs and alcohol warranted a downward deviation from the baseline to a three-year suspension).

Here, it is abundantly clear that respondent’s misconduct is directly related to his opioid dependence. However, respondent has demonstrated a meaningful and sustained period of successful rehabilitation from his chemical dependency, and we believe his recovery has made a recurrence of his misconduct very | ^unlikely. Notably, respondent has been drug-free for more than two years since completing the treatment program at Pine Grove. He has also been subject to a LAP agreement since July 2013, and the director of the program reports that respondent’s performance under the agreement has been exemplary to date.

Under these circumstances, the ABA’s Standards for Imposing Lawyer Sanctions emphasizes that “the greatest weight” should be assigned to the mitigating factor of chemical dependency. We conclude that this mitigating factor, along with the other such factors present in this case, justifies a full deferral of the baseline sanction of suspension.

Accordingly, we will accept the board’s recommendation and suspend respondent from the practice of law for three years, fully deferred, subject to his successful completion of a five-year period of probation to coincide with a newly executed five-year LAP agreement. We caution respondent that any violation of the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that William Harrell Arata, Louisiana Bar Roll number 23431, be and he hereby is suspended from the practice of law for three years. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a five-year period of probation to coincide with a newly executed five-year LAP agreement. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

JOHNSON, C.J., dissents.

VICTORY, J., dissents and assigns reasons.

CLARK, J., dissents.

VICTORY, J.

dissents.

hi would impose a harsher sentence.

CLARK, J.,

dissenting.

hi dissent.

      . The evaluation also revealed that respondent "has a long history of chronic pain related to his hemophilia” and "has become physiologically dependent on opiates as a result of efforts to treat his pain.”

      . In 1999, respondent entered into the Louisiana State Bar Association’s diversion program after a client filed a disciplinary complaint against him. In 2011, respondent received an admonition for failing to provide a client with a clearly written contingency fee agreement.


author: WELCH, J.

text:
    Mary GAUTREAUX on behalf of Patrick GAUTREAUX v. ARABIE TRUCKING, American Interstate Insurance Company, and Graham Neill, individually and as owner of A & G Tree & Stump Removal.
    No. 2012 CA 1026.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2013.
    See also 111 So.3d 1088, 880 So.2d 932, and •2011 WL 2979977.

      Michael L. Hebert, Baton Rouge, LA, for Appellant Plaintiff — Mary Gautreaux.
    Lawrence B. Frieman, Janna C. Berger-on, Covington, LA, for Appellees Defendants — Arabie Brothers Trucking Co. and American Interstate Insurance Company.
    Before ’WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

12Mary Gautreaux appeals a judgment of the Office of Workers’ Compensation (OWC), in favor of Arabie Brothers Trucking Co. (Arabie) and American Interstate Insurance Company (American). We affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

The facts forming the background for this appeal are undisputed and can be gleaned from prior opinions of this court. On January 27, 2000, Patrick Gautreaux was seriously injured while cutting a tree which fell on him, crushing him to the ground. As a result of the accident, Patrick remained in a coma until his death in October 2007.

At the time of the accident, Arabie was clearing a piece of property and had subcontracted with Patrick’s direct employer to grind and remove two stumps. After the accident, American, Arabie’s workers’ compensation insurer, began paying workers’ compensation benefits to and medical expenses on behalf of Patrick.

Patrick’s accident spurred a number of disputed workers’ compensation claims. On October 5, 2000, Arabie and American filed a disputed claim in the OWC against Patrick and his direct employer. They sought a judgment declaring that no further workers’ compensation benefits were due to Patrick and sought indemnification from his direct employer. Patrick filed a reconventional demand asserting that Ara-bie was his statutory employer, entitling him to workers’ compensation benefits. The workers’ compensation judge (WCJ) entered judgment in favor of Arabie and American, finding that Patrick was not in the Igcourse and scope of his employment with Arabie at the time of the accident. On appeal, this court reversed, holding that Patrick was a borrowed employee of Arabie, entitling him to all compensation benefits and medicals due him because of the accident. The case was remanded to the OWC for a determination of the amount of compensation benefits and medicals due and the amount, if any, of penalties and attorney’s fees due. Arabie Brothers Trucking Co. v. Gautreaux, 2003-0120 (La.App. 1st Cir.8/4/04), 880 So.2d 932, 941-942, writ denied, 2004-2481 (La.12/10/04), 888 So.2d 846.

Following remand, Patrick was awarded medical and indemnity benefits, but the WCJ declined to award penalties and attorney’s fees. On appeal, the judgment was vacated because Patrick was deceased at the time it was rendered. The matter was remanded to the OWC to allow a substitution and the rendition of a proper judgment. Arabie Brothers Trucking Co. v. Gautreaux, 2010-1999 (La.App. 1st Cir.6/10/11), 2011 WL 2979977 (unpublished ).

Thereafter, Mary Gautreaux, Patrick’s ■ mother, was substituted as the proper party plaintiff and a proper judgment was signed. Mrs. Gautreaux filed an appeal challenging the WCJ’s failure to award penalties and attorney’s fees, its calculation of benefits, and the failure to award costs. This court amended the judgment to tax costs to Arabie and American, but affirmed the judgment in all other respects. Arabie Brothers Trucking Co. v. Gautreaux, 2012-0849 (La.App. 1st Cir.12/21/12), 111 So.3d 1088, writ denied, 2013-0536 (La.4/26/13), 112 So.3d 844.

In 2009, Mrs. Gautreaux filed a supplemental 1008 petition, which forms the basis of the instant appeal, against Arabie and American (collectively referred to as “American”) in the OWC. Therein, she asserted numerous claims, but relevant to this appeal are only two. Mrs. Gautreaux sought additional reimbursement for sitter services she provided for her son during the time American ceased paying benefits and for medical bills paid by Medicaid during that time.

|4American filed a motion for a partial summary judgment on the issue of the amount of reimbursement Mrs. Gautreaux was entitled to for the “attendant care services” she provided to her comatose son. For the purpose of the motion, the parties agreed that Mrs. Gautreaux did in fact provide “attendant care services” to Patrick for 1,290 days. It was also undisputed that American paid Mrs. Gautreaux $53,148.00 for those services at a rate of $5.15 per hour, the prevailing minimum wage, for eight hours a day for those 1,290 days.

American contended that Mrs. Gau-treaux had been paid the maximum amount to which she was legally entitled pursuant to the workers’ compensation reimbursement schedule set forth in the Louisiana Administrative Code in Title 40, Part I, Chapter 35 Sections 3507-3511 (2006) (“fee schedule”). American urged that the fee schedule provides for three levels of care: Registered Nurse (R.N.); Licensed Practical Nurse (L.P.N.); and sitter/nonprofessional. In support, American pointed to Section 3507(A)(2)(a), found in the section pertaining to prior authorization requirements, which requires the treating physician to provide a “description of needed nursing or other attendant services, as well as specifying the level of nursing care (R.N., L.P.N., sitter/nonprofessional ... ”). American argued that because it is undisputed that Mrs. Gau-treaux is not a R.N. or L.P.N., holds no certificates or licenses in any medical field, and never had any formal training as a nurse, by default, she fell into the sitter/nonprofessional family member category. Pursuant to the fee schedule, services by nonprofessional family members are reimbursable up to eight hours in any 24-hour period at an hourly rate of minimum wage. La. Admin. Code 40:3509A(5) and 3511C (2006). American also relied on La. R.S. 23:1034.2D, which provides that fees in excess of the reimbursement schedule shall not be recoverable against the employer or compensation insurer, in support of its claim that Mrs. Gautreaux was not entitled to further reimbursement for her services.

|fiIn support of the motion, American introduced Mrs. Gautreaux’s answers to interrogatories and an excerpt from her deposition in which she admitted that she did not possess any certificates or licenses in any medical field or profession, including but not limited to, sitter, nursing assistant, and/or nurse. They also submitted an e-mail correspondence setting forth that Mrs. Gautreaux had been paid $53,148.00 and the rate at which her hourly fee had been computed.

In opposition to the motion, Mrs. Gau-treaux claimed that because her son required 24-hour-a-day care and because she performed nursing services in caring for her comatose son, her rate of compensation should be the same as a nurse rather than a sitter. Mrs. Gautreaux pointed out that American paid her $8.00 an hour for her services prior to its termination of benefits, and then paid her $18.00 per hour after the successful appeal of the termination decision. She acknowledged that the rates American paid her in the past had not been negotiated or “pre-negotiat-ed,” but claimed that the rates paid reflected an admission by American that she was doing nursing services or at least was owed more than minimum wage for the services she was providing. Mrs. Gau-treaux asked the WCJ to enter a reasonable award by splitting the $8.00 fee paid prior to the appeal and the $18.00 fee paid after the appeal, or to choose one or the other in setting the appropriate rate of compensation for her services.

In opposition to the motion, Mrs. Gau-treaux submitted her affidavits, in which she attested that from the date of her son’s injury in 2000, she had been by his side and had been taught by the hospital nursing staff, among other things: how to care for a patient in bed; how to perform physical therapy on her son’s arms, legs, and neck; how to administer medications; how to suction Patrick’s throat; and how to bathe, feed, and lift Patrick. (Gau-treaux A) She further attested that once Patrick came home, she was instructed by numerous providers of equipment, medication, and medical supplies in the use and administration of the supplies or | ^services. According to Mrs. Gautreaux, she had been instructed by nurses and therapists on: how to care for a comatose patient; trach care and breathing treatments; how to pack a central line when it became infected, how to use a suction catheter; and how to care for pressure point wounds on the hands and fingers. Mrs. Gautreaux also attested that she ordered medical supplies according to the list provided by the insurer and Patrick’s treating physicians and received and checked the supplies. In her affidavits, Mrs. Gautreaux described a typical day of caring for Patrick, including, among other things, the administration of medication, performing breathing treatments every six hours around the clock and tube feedings four times a day, taking his blood pressure and checking his oxygen level, and performing trach care. She acknowledged that during the time the case was on appeal, Medicaid provided some sitter services. Mrs. Gautreaux explained that after her son was released from the hospital, sitters and other attendants helped to care for her son, but they would sometimes not come, and she was instructed to write down her time and submit it to the insurer for payment. After the case was overturned on appeal, the nurses and CNA’s who were caring for Patrick did not come 24 hours a day; again, she was instructed to record her time and send it to the compensation insurer for payment.

In further opposition to the motion for summary judgment, Mrs. Gautreaux offered the deposition testimony of Dr. Russell Henry, an internist who treated Patrick following his injury. He acknowledged that Patrick required 24-hour-a-day care with someone in attendance at all times, and once stabilized, would have to be looked at every four hours or so. She also submitted checks written to her by American for attendant home care from May 2, 2001, through December of that year, and from February 18, 2006 through September 2007.

On August 4, 2010, a hearing was held on the motion, and on August 27, 2010, the WCJ rendered judgment granting American’s motion for partial |7summary judgment and dismissing Mrs. Gautreaux’s claim for payment for sitter services provided to her son with prejudice.

Trial proceeded on Mrs. Gautreaux’s remaining claims, limited at the outset of the trial to her claims for penalties and attorney’s fees for American’s allegedly late payment of, among other things, certain indemnity benefits, attorney’s fees and court costs awarded by this court, sitter services, and a Medicaid payment. Following the trial, the WCJ entered judgment finding that the payment for sitter services and costs and attorney’s fees from the final judgment were late and assessing penalties and attorney’s fees on those late payments. The WCJ further found that Mrs. Gautreaux did not have a right to recover penalties or attorney’s fees for American’s late reimbursement to Medicaid of medical expenses paid by Medicaid.

Mrs. Gautreaux filed this appeal, contending that the WCJ erred in limiting her recovery for sitter’s fees to minimum wage, insisting that she should have been awarded $18.00 per hour for her services. She also asserts that the WCJ should have awarded her penalties and attorney’s fees for the late Medicaid payments and that the WCJ erred in failing to assess costs. Lastly, Mrs. Gautreaux seeks an award of attorney’s fees for the work done in connection with this appeal.

ATTENDANT CARE SERVICES

We first review the grant of partial summary judgment rendered in favor of American by the WCJ. An appellate court reviews a decision to grant a motion for summary judgment using the same criteria that govern a trial court’s consideration of whether summary judgment is appropriate. Populis v. Home Depot, Inc., 2007-2449 (La.App. 1st Cir.5/2/08), 991 So.2d 28, 24, writ denied, 2008-1155 (La.9/19/08), 992 So.2d 943. A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material |sfact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The workers’ compensation fee schedule is contained in Chapter 35 of Title 40 of the Louisiana Administrative Code, which sets forth rules regarding nursing/attendant care and home health services. Section 3507 requires prior authorization for all nursing services and personal care services described in the regulations. A physician must describe the “level of nursing care (R.N., L.P.N., sitter/nonprofessional)” and the daily/hourly requirements for each level of nursing care. La. Admin. Code 40:3507A(2)(a) & (b) (2006).

Section 3509 contains training requirements and reimbursement guidelines. It provides that payment may be made for authorized services to the following provider types: “trained professional nursing personnel” who provide services through other entities or who are self-employed; nursing and personal care homes; nursing manpower agencies and home health agencies; family members and other persons who are medical professionals; and family members who are not trained professional nursing personnel if the following requirements have been satisfied: the attendant received adequate instruction from the authorized treating provider regarding the services to be provided in the home; the services are beyond the scope of normal household duties and are in the nature of services ordinarily rendered by trained professional personnel in hospitals and nursing homes; and there is sufficient evidence to identify the nature and approximate value of the services. La. Admin. Code 40:3509A(l)(2)(3)(4)(5)(6)(a)(b) & (c) (2006). American stipulated that Mrs. Gautreaux met all of the requirements to be reimbursed as a nonprofessional family member.

The guidelines further provide categories of services which require different levels of care for proper administration. The first group of services requires “skilled” personnel. The non-exclusive listing includes tracheotomy aspiration. |flLa. Admin. Code 40:3509A(9) (2006). The second group of sexwices is “supportive,” which are not necessarily skilled and may require only a nonprofessional level of care, such as changes of position in bed for a nonam-bulatory patient to avoid the development of ulcers. La. Admin. Code 40:3509A(10) (2006). The third group is activities not considered to be “skilled” nursing services for which a person of lesser training can be utilized, such as administration of routine oral medications, routine services in connection with bladder catheters, skin care, and assisting the patient in routine dressing and eating. La. Admin. Code 40:3509A(11) (2006).

Section 3511 sets forth the maximum allowable reimbursement for nursing/attendant care services for the least of the provider’s usual and customary fee, a pre-negotiated amount between the provider and carrier, or the maximum allowable amounts established by the schedule. The following rates are established in the schedule: (1) registered nurse — $44.00 per hour; (2) licensed practical nurse — $31.00 per hour; (3) nurses’ aide — $11.00 per hour; (4) attendant — minimum wage; and (5) nonprofessional family member — minimum wage. La. Admin. Code 40:3511C (2006).

American argues that the fee schedule clearly sets forth three categories of personnel providing services to an injured employee: (1) RN; (2) LPN; and (3) “sitter/nonprofessional.” It submits that obviously the “trained professional nursing personnel” referred to in Section 3509A(2)(a) are RNs and LPNs because they are the only level of providers that require formal training and licensure. American claims that in order to be reimbursed as a trained nursing professional, Mrs. Gautreaux must be a R.N. or a L.P.N., and insists that simply because she may know how to “aspirate a tracheotomy” does not make her a trained nursing professional. It insists that because it is un-controvered that Mrs. Gautreaux is not a |10R.N. or a L.P.N., by default, she can only fall into the “sitter/nonprofessional” category.

Mrs. Gautreaux contends that the fee schedule simply does not apply to her. She stresses that she performed the work of a registered nurse in caring for her son. She also urges that the clearest expression she did so is the fact that American paid her $18.00 an hour as an independent contractor for her services. Mrs. Gautreaux points out that when American needed her services, they paid her appropriately, but now resorts to “splitting hairs” in the hope of reducing its obligation.

We have reviewed the provisions for nursing/attendant care set forth in Sections 3507-3511 of Chapter 35 and conclude that because it is clear that Mrs. Gautreaux is not a R.N. or a L.P.N., she may not be reimbursed the hourly rate set forth in the reimbursement schedule for those types of nursing professionals. However, the parties have not addressed whether Mrs. Gautreaux can qualify as a “self-employed nurses’ aide,” for which Section 3511C sets forth an $11.00 hourly reimbursement rate. We note that American was paying Mrs. Gautreaux for caring for her son prior to the time that it ceased paying all workers’ compensation benefits. For that reason, she could be considered “self-employed.” The reimbursement schedule does not require that the nurse’s aide be a “certified nurse’s aide” (CNA), nor does it set forth what type of training a person must have in order to qualify for reimbursement as a “nurse’s aide.” We note that Section 3509A(11) refers to a host of activities which are not considered to be “skilled” nursing services that may be performed by a person of “lesser training.” Because Mrs. Gautreaux offered evidence showing that she had been trained by nursing professionals and was in fact performing services which could be considered to be “skilled” services under Section 3509A(9) and services clearly falling under Section 3509A(11), it is possible that she could qualify for reimbursement as a “self-employed nurses’ aide.” We further observe that American stipulated that |n Mrs. Gautreaux met all of the requirements of Section 3509A(6), one of which is that the services provided must be in the nature of services ordinarily rendered by trained professional personnel in hospitals or nursing homes. Since American did not offer evidence foreclosing Mrs. Gautreaux from reimbursement for the “self-employed nurses’ aide” level of attendant care services, we find that the WCJ erred in granting summary judgment finding Mrs. Gau-treaux was only entitled to minimum wage reimbursement under the schedule.

MEDICAID PAYMENT

In her second assignment of error, Mrs. Gautreaux contends that the WCJ erred in concluding that she is not entitled to receive penalties or attorney’s fees associated with the reimbursement to Medicare by-American. According to the record, on April 23, 2010, the Louisiana Department of Health and Hospitals (DHH) received a check from American in the amount of $161,418.02, which DHH acknowledged constituted full reimbursement of the Medicaid lien amount arising from its payment of medical expenses on Patrick’s behalf. On April 26, 2010, DHH advised the parties that it had closed its file on this case.

Mrs. Gautreaux first contends that the WCJ erred in concluding that only Medicaid had a right to recover the medical benefits it paid. She submits that because an injured worker has a right to seek reimbursement of Medicaid benefits paid, she should be entitled to penalties and attorney’s fees on the amount American finally paid to Medicaid on April 23, 2010, some six years after this court ordered that all medical bills be paid.

Mrs. Gautreaux acknowledges that the Louisiana Supreme Court has held that payment of an employee’s medical expenses by Medicaid extinguishes the employee’s claim against the employer for those medical benefits and has indicated that only Medicaid has a right to recover the benefits it has paid, citing Benoit v. Turner Industries Group, L.L.C., 2011-1130 (La.1/24/12), 85 So.3d ||⅞629, but insists that the supreme court misread La. R.S. 23:1212 in reaching that conclusion. Mrs. Gautreaux contends that La. R.S. 23:1212 plainly provides that if Medicaid paid the medical bills, the claim against the employer/insurer is NOT extinguished.

Louisiana Revised Statute 23:1212 provides in part as follows:

A. Except as provided in Subsection B, payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, or by Medicaid or other state medical assistance programs of medical expenses that are owed under this Chapter, shall extinguish the claim against the employer or insurer for those medical expenses.
B. Payments by Medicaid or other state medical assistant programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer.

In Benoit, the court held that reading the statute as a whole, the payment of medical expenses by Medicaid extinguishes any claim by the employee against the employer for those expenses.. However, the court concluded, paragraph (B) carves out a narrow exception whereby the state is granted a right to recover these expenses from the employer. Benoit, 85 So.3d at 632. Under Benoit, Medicaid’s payment of medical expenses extinguished Mrs. Gau-treaux’s claim against American for those expenses up to the amount paid. Medicaid is the proper party to recover expenses it paid on behalf of Patrick from American. Therefore, we find no merit in Mrs. Gau-treaux’s claim that she has a right to seek payment of the medical expenses paid by Medicaid from American.

Mrs. Gautreaux argues that even if she cannot seek reimbursement of medical expenses paid by Medicare, she still has the right to seek attorney’s fees, penalties, and interest for the untimely payment of those benefits. We disagree. If Mrs. Gau-treaux’s right to recover medical expenses from American was extinguished by the amount of the payments made by Medicaid, and only Medicaid has the right to seek reimbursement of the payments it made on behalf of Patrick 11sfrom American, it follows that. Mrs. Gautreaux has no right of action to recover penalties and attorney’s fees for American’s purportedly untimely reimbursement of those expenses to Medicare. Therefore, we find that the WCJ correctly denied this claim.

COSTS AND ATTORNEY’S FEES

Mrs. Gautreaux contends that the WCJ erred in failing to assess costs to American. The judgment entered by the WCJ is silent on costs. Because Mrs. Gautreaux prevailed on some claims and American prevailed on some claims, we infer that the WCJ intended for each party to bear their own costs. We find no error in the WCJ’s failure to award Mrs. Gautreaux costs.

In her final assignment of error, Mrs. Gautreaux asks for attorney’s fees for the preparation of the appeal. We decline to enter an award of attorney’s fees, as there has been no ruling on the merits that Mrs. Gautreaux is entitled to additional reimbursement for the services she provided to ' her son from American and this court has denied her other claims.

CONCLUSION

For the foregoing reasons, the partial summary judgment rendered in favor of Arabie Brothers Trucking Co. and American Interstate Insurance Company is reversed: In all other respects, the judgment appealed from is affirmed. The case is remanded to the Office of Workers’ Compensation for further proceedings. Costs of this appeal are assessed one-half to appellant, Mary Gautreaux, and one-half to appellees, Arabie Brothers Trucking Co. and American Interstate Insurance Company.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CRAIN, J., concurs.

      . Arabie Brothers Trucking Co. v. Gautreaux, 2003-0120 (La.App. 1st Cir.8/4/04), 880 So.2d 932, writ denied, 2004-2481 (La. 12/10/04), 888 So.2d 846; Arabie Brothers Trucking Co. v. Gautreaux, 2010-1999 (La.App. 1st Cir.6/10/11), 2011 WL 2979977 (unpublished ); and Arabie Brothers Trucking Co. v. Gautreaux, 2012-0849 (La.App. 1st Cir.12/21/12), 111 So.3d 1088, writ denied, 2013-0536 (La.4/26/13), 112 So.3d 844. ,


author:
      SUSAN M. CHEHARDY, Chief Judge. JOHNSON, J.,
      CHAISSON, J.,

text:
    Melanie L. TROSCLAIR v. Mona R. JOSEPH, Tom Schedler, in his Official Capacity as Louisiana Secretary of State, Eliana Defrancesch in her Official Capacity as Clerk of Court for St. John The Baptist Parish.
    No. 14-CA-675.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 9, 2014.
    Robert J. Snyder, Jr., Gramercy, Louisiana, Charlotte McDaniel McGehee, Baton Rouge, Louisiana, for Appellee Melanie Trosclair.
    Javar Davidson, New Orleans, Louisiana, for Appellant Mona R. Joseph.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, MARC E. JOHNSON, ROBERT A. CHAISSON, ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

12This is an election suit arising out of the race for a district court judgeship in St. John the Baptist Parish.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Melanie Trosclair, a duly-qualified elector in the Parish of St. John the Baptist (hereinafter referred to as “St. John”), filed the instant suit seeking to disqualify Mona Rita Joseph as a candidate for District Court Judge, Division “B” in the election scheduled for November 4, 2014. Pursuant to La. R.S. 18:492, Mrs. Trosclair filed an objection to Ms. Joseph’s candidacy on the basis that Ms. Joseph failed to qualify for the primary election in the manner required by La. R.S. 18:463. Specifically, Mrs. Trosclair challenged, among other things, discrepancies between Ms. Joseph’s voter registration information and her notice of candidacy, or “qualifying,” information.

On September 2, 2014, the trial court held a hearing. At the hearing, evidence and testimony disclosed that, in 1995, Mona Rita Joseph registered to |3vote in St. John the Baptist Parish. When she registered to vote in 1995, she circled “None” with respect to political party affiliation. At trial, when first asked if she had “made an application to the Registrar’s Office to change [her] party affiliation,” Ms. Joseph stated, “I don’t think I have.”

When Ms. Joseph filed her notice of-candidacy for this election in 2014, she listed her party affiliation as “Democrat.” Ms. Joseph also attested on that filing that “All the statements contained herein are true and correct.” When questioned about the accuracy of the information on the notice of candidacy form filed in this case, Ms. Joseph stated at trial, “And all the information is true and correct.... and I have chosen my Democratic party. I can change my party affiliation at any time.”

Later, when questioned by her attorney, Ms. Joseph stated that she questioned the Registrar about changing her party affiliation and was told that “I could wait until 30 days prior to the election to do so.” Ms. Joseph, when questioned by the trial court as to what affiliation her voter registration card on file with the St. John Registrar of Voters listed on the last day of qualifying for this election, admitted, “it says that I have none.” Ms. Joseph also admitted, “To change my party affiliation, as required, I believe that I’m supposed to go to the Registrar of Votersfsic ] Office to do so.” When asked if she had accomplished that, she stated, “Yes, I ... attempted to.”

During her testimony, she also identified a printout from the Louisiana Secretary of State’s website listing her party affiliation as “Democrat.” When asked by the trial court when her affiliation was entered in the Secretary of State’s |4website, she replied, “I don’t remember when. I don’t really remember when it was changed.... I think when I filed [my notice of candidacy] papers it was changed.”

At the conclusion of the trial, the trial court, based on the testimony and evidence before him, ruled in favor of Mrs. Trosclair finding that Ms. Joseph’s “failure to put the party affiliation on the qualifying form that is shown in the records of the Registrar of Voters disqualifies her from the election.” Ms. Joseph appeals that ruling.

DISCUSSION

On appeal, Ms. Joseph, in numerous assignments of error, essentially contends that the trial court erred in its ruling because party affiliation is not a constitutional or mandated qualification for judicial office and, thus, cannot be used to disqualify a candidate. In her final assignment of error, Ms. Joseph also argues that the “trial court erred in failing to rule on, and effectively denying, Ms. Joseph’s declinato-ry exception of insufficiency of service of process.”

Turning to her final assignment of error first, Ms. Joseph argues that the trial court erred in failing to rule on her verbal exception of insufficiency of service of process. First, we note that this Court reviews issues which were submitted to the trial court. U.R.C.A 1-3. As there was no ruling, this issue is not properly before this Court on appeal.

La. Const. Art. V, § 24 reads, in pertinent part, “A judge of the ... district court ... shall have been domiciled in the respective ... parish for one year preceding election and shall have been admitted to the practice of law in the state for at least ... eight years.... [and] shall not practice law.”

In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Russell v.. Goldsby, 00-12595, (La.9/22/00), 780 So.2d 1048, 1049-51; 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. Russell, supra.

The purpose of the notice of candidacy is to provide sufficient information to show a candidate is qualified to run for the office he seeks. Senegal v. Obafunwa, 99-1449, 99-1450 (La.App. 3 Cir. 9/27/99), 745 So.2d 74, 76. 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).

The manner of qualifying for an election is set forth in La. R.S. 18:461(A)(1), which provides in pertinent part that “[a] person who desires to become a candidate in a primary election shall qualify as a candidate by timely filing notice of his candidacy, which shall be accompanied ... by the qualifying fee and any additional fee imposed.” La. R.S. 18:463 provides, in pertinent part, that:

A.(l)(a)A notice of candidacy shall be in writing and shall state the candidate’s name, the office he seeks, the address of his domicile, and the parish, ward, and precinct where he is registered to vote. The candidate shall list on the notice of candidacy the name of the political party if he is registered as being affiliated with a recognized political party, “other” if he is registered as being affiliated with a political party that is not a recognized political party, or “no party” or an abbreviation thereof if he is registered with no political party affiliation. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he has qualified for the election.”
(2)(a) The notice of candidacy also shall include a certificate, signed by the candidate, certifying all of the following:
(1) That he has read the notice of his candidacy.
(ii) That he meets the qualifications of the office for which he is qualifying.
(viii) That all of the statements contained in it are true and correct.
(b) The certificate shall be executed before a notary public or shall be witnessed by two persons who are registered to vote on the office the candidate seeks.
E. (1) A candidate who has filed a notice of candidacy may change the information contained therein by filing a new notice of candidacy and paying the qualifying fee required by R.S. 18:464 during the qualifying period; however, a candidate who is serving in the armed forces of the United States who is stationed or deployed outside of the United States shall not be required to pay the qualifying fee.
(2) No changes to the information contained in a notice of candidacy shall be made after the close of qualifying, except to correct an error made by the qualifying official who entered the information contained in the notice of candidacy into the database of the Department of State. [Emphasis added.]
La. R.S. 18:551(D) provides:
The political party designation of a candidate who is registered as being affiliated with a recognized political party shall be listed on the primary or general election ballot on the same line and immediately after or below the candidate’s name. If a candidate is not affiliated with a political party, the space after his name shall be left blank.

“Moreover, Section 551(D) requires the Secretary of State to prepare election ballots that properly reflect a candidate’s political party affiliation, as stated. in his latest, timely, and accurate notice of candidacy.” LaCombe v. McKeithen, 04-1880 (La.App. 1 Cir. 8/30/04), 887 So.2d 48, 51-53, writ denied, 04-2240 (La.9/2/04); 882 So.2d 588.

“The intent of the law, as we understand the language which it uses, is to require that the qualification of a candidate shall be complete at the time he files his application, or, at any rate, before the expiration of the time for filing applications.” Smith v. Parish Democratic Executive Comm, for Parish of Jefferson, 164 La. 981, 985, 115 So. 54, 56 (1927). See also Edwards' v. Patterson, 94-1672 (La.App. 1 Cir. 8/18/94), 641 So.2d 219, 220-21(once qualifying is closed, if there is no legal basis for reopening the qualifying period then the candidate cannot amend her notice of candidacy).

There is no dispute that, according to the Registrar of Voters for St. John the Baptist Parish, Ms. Joseph was not affiliated with a political party on the date that |7she filed her notice of candidacy in this election. Further, there is no dispute that Ms. Joseph listed her party affiliation on her notice of candidacy as Democrat.

Here, as in Edwards, Ms. Joseph’s notice of candidacy was not free from errors and did not satisfy the legal requirements of accuracy when it was filed. Accordingly, we must hold that Ms. Joseph incorrectly listed her party affiliation on her qualifying papers, creating an error in material information that is required by law to be accurate so that balloting can be properly published by the Secretary of State in the voting booth. Because this error cannot be corrected after the fact, Ms. Joseph’s failure to properly declare her party affiliation on her notice of candidacy has disqualified her from candidacy.

Moreover, La. R.S. 18:1410 mandates that a court rendering a judgment in an action objecting to candidacy transmit the judgment to the Secretary of State who shall remove that candidate’s name from the ballot. Thus, the only legislative remedy for a successful challenge to candidacy is the removal of the unsuccessful litigant’s name from the ballot.

DECREE

For the foregoing reasons, we find that the ruling of the trial court was correct and hereby affirm that ruling. Costs of appeal are assessed against appellant, Mona Rita Joseph.

AFFIRMED.

JOHNSON, J., dissents with reasons.

CHAISSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

| J, respectfully, dissent from the majority opinion that Mona R. Joseph failed to properly declare her party affiliation on her notice of candidacy, which required her disqualification from the election for district court judge for Division “B” in St. John the Baptist Parish, for the following reasons.

It is my position that the majority opinion is incorrect in holding that “Ms. Joseph incorrectly listed her. party affiliation on her qualifying papers, creating an error in material information that is required by law to be accurate so that balloting can be properly published by the Secretary of State in the voting booths.” According to the evidence presented at trial, Ms. Joseph certified as to the same party affiliation, Democrat, that the databases for the Louisiana Secretary of State and local registrar of voters indicated as her registered political party.

Ms. Joseph testified that she changed her party affiliation to the Democratic party with the registrar of voters; however, she did not know exactly when it was done. She further testified that she has always voted as a Democrat. Ms. Joseph also submitted a printout from the Louisiana Secretary of State’s website indicating that she is a Democrat. After reviewing the evidence, I |2conclude that the change to Ms. Joseph’s party affiliation occurred pri- or to the submission of her notice of candidacy qualifying form on August 22, 2014 at 4:27p.m. through the corroborations of the testimonies of Janet Kavanaugh, the Elections Supervisor for the Clerk of Court for the 40th Judicial District Court, and Brandie Williams, a deputy clerk of court for the same district.

Ms. Kavanaugh testified the clerks use a system called ERIN, which contains information supplied directly by the registrar of voters, to transmit a candidate’s information to the Louisiana Secretary of State for qualifying purposes upon completion of the digital notice of candidacy form. She stated that, when a candidate’s name is entered into ERIN, the system auto-populates fields for the form with information provided from his or her voter’s registration. Ms. Kavanaugh also testified that, if an automatically populated field in ERIN does not match a field on the handwritten notice of candidacy form submitted by the candidate, then the candidate would be required to correct the discrepancy with the registrar of voters before a change could be reflected in ERIN. In addition, Ms. Williams testified that ERIN auto-populates fields for the digital notice of candidacy form. When directly questioned by the trial court as to whether the political party designation is auto-populated, Ms. Williams replied, “Yes.”

Ms. Joseph’s certified notice of candidacy printed from ERIN indicates that her party affiliation is with the Democratic party. By way of the procedure attested to by Ms. Kavanaugh and Ms. Williams, Ms. Joseph’s party affiliation listed on her notice of candidacy had to have been her registered party affiliation with the registrar of voters because the registrar of voters is the source of the voter information for ERIN. There was no argument or controverting evidence | presented at trial to refute that the information automatically populated in ERIN or the testimony of Ms. Kavanaugh as to the procedure for discrepancies between ERIN and the handwritten notice of candidacy form was correct. Thus, Ms. Joseph certified her political affiliation on the notice of candidacy as to the same information reflected in the registrar of voters’ system at the time she qualified as a candidate. The voters’ registration card, which was signed in 1995, was not indicative of Ms. Joseph’s party affiliation at the time she certified her notice of candidacy and should not be given any weight. Therefore, there was no error on Ms. Joseph’s certified notice of candidacy form regarding her political affiliation that required correction, which means that she timely complied with the qualifications of the candidacy for district court judge.

In addition, I find that Ms. Joseph’s testimony concerning her change in party affiliation and voting history sufficient to find that she was registered as a Democrat. In Montegwt v. St. John the Baptist Parish Democratic Executive Comm., 265 So.2d 258, 260 (La.Ct.App.1972), writ refused, 262 La. 971, 265 So.2d 616 (1972), the court found that the formality of filing a written request to change party affiliations does not necessitate the disqualification of the candidate. In refusing to adopt the position of the appellee, which is similar to the position set forth by Melanie Trosclair, the court held,

Further we find we cannot consider ap-pellee’s attempt to have Edwards disqualified on the grounds that the application for a change of party affiliation made by Edwards from Republic to Democrat on August 8, 1971, was fatally defective because of his failure to file a request in writing seeking the change as required in LSA-R.S. 18:270.204. In this court, as he did in the trial court, one of the grounds on which appellee attempts to have Edwards disqualified is that an application for a change of party affiliation from Republican to Democrat made by Edwards on August 8, 1971 was fatally defective because of his failure to file a request in writing seeking the change as required by LSA-R.S. 18:270.204.
The record reflects that subsequent to the change of party affiliation, Edwards voted in two separate democratic primary elections and in one general election. While no written request for the change was made by Edwards, we fail to understand how the appellant can be penalized for the possible error of the registrar. It is reasonable that a registrant or voter be permitted to rely on the registrar of voters to properly carry out the functions of his office.
[Emphasis added], [Footnote added to original].

Here, Ms. Joseph testified that she changed her party affiliation with the registrar of voters. This evidence, coupled with the uncontroverted testimony that she has always voted as a Democratic, leads me to the same conclusion as the Montegut court that Ms. Joseph should not be penalized for the possible error (failure to change Ms. Joseph’s party affiliation upon request) of the registrar of voters.

Even assuming arguendo that Ms. Joseph had not changed her party affiliation prior to certifying her notice of candidacy form, I would still be of the opinion that she met the qualifications of the election.

La. R.S. 18:463(A)(l)(a) provides,
A notice of candidacy shall be in writing and shall state the candidate’s name, the office he seeks, the address of his domicile, and the parish, ward, and precinct where he is registered to vote. The candidate shall list on the notice of candidacy the name of the political party if he is registered as being affiliated with a recognized political part, “other” if he is registered as being affiliated with a political party that is not a recognized political party, or “no party” or an abbreviation thereof if he is registered with no political party affiliation. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he has qualified for the election.
[Emphasis added].

According to La. R.S. 18:18(A)(2), the Louisiana Secretary of State has the authority to assist the registrars of voters of the state with respect to matters pertaining to the registration of voters.

liiMs. Joseph filed a notice of candidacy form that was transmitted by the Clerk of Court to the Louisiana Secretary of State’s office through ERIN. That form listed Ms. Joseph’s political affiliation with the Democratic party. I find that Ms. Joseph’s submission of her notice of candidacy was her written declaration of a change from no party affiliation to the Democratic party. Her change in party affiliation was simultaneously submitted to the Secretary of State with her notice of candidacy. La. R.S. 18:463 prohibits a change to the party affiliation after a candidate has qualified for an election; however, it does not prohibit a change made prior to or simultaneously with the qualification. Since the registrar of voters is not given the authority to deny a request to change party affiliation, I conclude that Ms. Joseph’s change in party affiliation occurred when her intent to change was submitted through her notice of candidacy.

Since the laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy and any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office, I am of the opinion that Ms. Joseph should be allowed to run in the election. See, Russell v. Goldsby, 00-2595 (La.9/22/00); 780 So.2d 1048, 1051. I find that disqualifying Ms. Joseph on the basis of a change in her political party is an absurd result.

For the foregoing reasons, I would reverse the trial court’s ruling disqualifying Mona R. Joseph from the November 4, 2014 election for district court judge for St. John the Baptist Parish.

CHAISSON, J.,

dissents with reasons.

|,I respectfully dissent from the majority opinion for the following reasons.

The trial judge disqualified Ms. Joseph from this election based solely on the fact that he found that she failed to qualify for the election in the manner prescribed by law. Specifically, he found that the party affiliation stated by Ms. Joseph on her Notice of Candidacy was not the same as her designated party affiliation on her official voter registration, a violation of La. R.S. 18:463(A)(l)(a). The question for this Court therefore is whether the trial court was manifestly erroneous in determining that the party affiliation stated by Ms. Joseph (i.e., “Democrat”) was not the same as her designated party affiliation on her official voter registration at the time that she qualified.

On this point, the plaintiff submitted a certified copy of Ms. Joseph’s original voter registration from the local Registrar of Voter’s office. This original voter registration shows that at the time that Ms. Joseph registered to vote in 1995, that she selected no party affiliation. In response to this evidence, Ms. Joseph submitted a computer printout from the state’s voter registration computer system, which is maintained by the Secretary of State and available for |2viewing online. This state database is established pursuant to La. R.S. 18:31. La. R.S. 18:115.1 provides that a voter may make application electronically through the Secretary of State’s website to make changes to her voter registration; however, it specifically provides that when application for a change is made, the “applicant shall be immediately informed that his application has been electronically forwarded to the appropriate registrar of voters, but that ... changes to his existing registration will not be made until his application is received and approved by the registrar of voters.” (emphasis added). La. R.S. 18:112 provides that “[wjhenever any change is made with respect to the registration of any person, the date of the change and all pertinent information concerning the change shall be entered by the registrar in the registrant’s information on the state voter registration computer system.” (emphasis added). Therefore, it is clear that the only way that Ms. Joseph’s party affiliation could have been changed on the state voter registration computer system is if a request for the change was received and approved by the local Registrar of Voters and then entered into the state database by the local Registrar. The trial judge, later in his oral reasons for judgment, acknowledged the discrepancy between the printout from the state database and Ms. Joseph’s original voter registration from 1995, and resolved this discrepancy by determining that he would give less weight to the uncertified computer printout. However, if at a minimum he did not accept that at some point in time prior to September 1, 2014, the St. John Registrar of Voters did in fact change Ms. Joseph’s official designation to “Democrat”, then in effect he gave no weight to the computer printout and [¡¡completely disregarded it, despite the fact that it was also attached to the plaintiffs Pre-trial Memorandum, it was not objected to, it was stipulated to by plaintiff, it was admitted by the trial judge, and it came from an official state computer database established by our Election Code. Accepting at a bare minimum that the printout established that at some point in time Ms. Joseph changed her party affiliation on her official registration to “Democrat”, the pertinent question for the trial judge to resolve was when this change took place, not whether it took place.

In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048, 1049-51; Messer v. London, 438 So.2d 546 (La.1988). The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Russell, supra.

It was plaintiffs burden to show that Ms. Joseph’s party designation on her official registration at the time that she qualified for the election was not “Democrat”, as stated on the Notice of Candidacy. The certified copy of Ms. Joseph’s original voter registration does not contain a date on which it was certified. Therefore, this copy of Ms. Joseph’s voter registration only establishes that at the time of her initial registration in 1995, she had selected no party affiliation, and that there was no change made to this designation up to the date of the certification, a date which is unknown. Although plaintiff subpoenaed Rita Jarrow, the St. John Registrar of Voters, who could have established the date of certification and the date on which Ms. Joseph’s party designation on her official voter registration was changed, plaintiff chose not to call Ms. Jarrow as a witness. 14On the other hand, Ms. Joseph submitted evidence, by way of the computer printout, that her party designation had been changed at least as of September 1, 2014. In my opinion, if the trial judge completely disregarded the printout, even only for the proposition that Ms. Joseph’s party affiliation had in fact been changed, despite the fact that there was no objection to the printout and it was stipulated to, then he committed legal error. If on the other hand, he accepted the printout as establishing that Ms. Joseph’s party affiliation had in fact changed, but found that Ms. Joseph did not establish when it had been changed, then he impermissibly shifted the burden of proof to Ms. Joseph, which, in my opinion, would also be legal error. Under either scenario, this legal error led the trial judge to conclude that the evidence established that Ms. Joseph’s party affiliation on her official voter registration at the time that she qualified was not “Democrat”, a finding that I find tó be manifestly erroneous.

I would also note that Ms. Joseph’s candidacy is not being challenged because she lacks one of the constitutionally mandated qualifications to run for the office of judge. She is being challenged on the basis that she did not qualify to run for the office in the manner prescribed by law, i.e., she did not follow the proper procedure or made errors in her qualifying papers. The specific error being that her stated party affiliation did not match her official party designation with the Registrar of Voters at the time of qualifying. There are no special qualifications that one must possess to designate a political party; all that is required is the subjective intent of the voter expressed in writing to the Registrar of Voters. Clearly, by her written declaration on her Notice of Candidacy, Ms. Joseph has | .¡expressed her written intent to be affiliated with the Democratic Party, and to run as a Democrat. The only question is whether procedurally she accomplished this stated intention by the time that she qualified to run for this office. The burden was on the plaintiff to prove that she had not, and in my opinion, the plaintiff did not carry her burden. Under these circumstances, I find that to disqualify Ms. Joseph from running, and to deprive the electorate of the opportunity to vote for the candidate of their choice, is a particularly harsh result, and I therefore respectfully dissent.

      . Mrs. Trosclair is die aunt of the third qualifier for the election for Judge in Division "B,” Robert "Rob” Snyder.

      . Mrs. Trosclair also filed a petition objecting to the candidacy of the incumbent, Judge Mary Hotard Becnel, which was denied. Mrs. Trosclair’s appeal of that ruling is before this Court in Trosclair v. Becnel et al, 14-676.

      . Judge Michael Kirby was -appointed ad hoc by the Louisiana Supreme Court to preside over the suits arising out of this election.

      .Ms. Joseph introduced as "Joseph Exhibit 2,” a printout from the Louisiana Secretary of State dated September 2, 2014. Over Mrs. Trosclair’s objection, Judge Kirby accepted the document into evidence and indicated that he would give it the evidentiary weight to which he deemed it entitled. This Court' has no basis upon which to discern the genesis of the information contained in the document. Since the print date of this document is September 2, 2014, after the close of the applicable qualifying period, it is impossible to determine whether the Secretary of State designated Ms. Joseph as a Democrat based upon her notice of candidacy or some other document.

      . The clerk did not testify as to the what the acronym "ERIN” means.

      . La. R.S. 18:270.204 is the former statute concerning the change to a party affiliation. The current law is found in La. R.S. 18:107. However, the finding in Montegut can also be applied to La. R.S. 18:107.

      . The plaintiff attached a copy of this same document, printed from the Secretary of State’s website on September 1, 2014, to her Pre-trial Memorandum, which she filed with the Court on the morning of the hearing, September 2, 2014, at 8:50 a.m. When Ms. Joseph's counsel moved to introduce the same document during the hearing, not only did counsel for plaintiff not object on any ground, she stipulated to the document. The trial judge allowed the document to be introduced.

      . Although plaintiff's petition makes the allegation that this certification was obtained on August 25, 2014, this allegation is not evidence and absolutely no evidence was admitted to substantiate this allegation on the key crucial question which is the crux of this case.

      . Ms. Joseph was also questioned at trial regarding when this change took place. Admittedly, it appears from her testimony that it was not clear in her mind as to when the change had actually taken place. However, it is clear that at the time of her qualifying she was in the Registrar of Voters’ office discussing the change, and she ultimately testified that she thought that the change took place "... when I filed [my notice of candidacy] papers it was changed,” in which case the change would have been timely.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Melanie L. TROSCLAIR v. Mary Hotard BECNEL, Tom Schedler, In his Official Capacity as Louisiana Secretary of State, Eliana Defrancesch in her Official Capacity as Clerk of Court for St. John the Baptist Parish.
    No. 14-CA-676.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 9, 2014.

      Charlotte McDaniel McGehee, Baton Rouge, LA, Robert J. Snyder, Jr., Gramer-cy, LA, for Appellant, Melanie L. Tros-clair.
    Kevin P. Klibert, Daniel E. Becnel, Jr., Reserve, LA, for Appellee, Judge Mary Hotard Becnel.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, JUDE G. ' GRAVOIS, MARC E. JOHNSON, ROBERT A. CHAISSON, ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

1 ¡>This appeal arises out of an objection to the candidacy of Judge Mary Hotard Becnel, appellee, for Division B of the Fortieth Judicial District Court in St. John the Baptist Parish. This position is to be filled by a primary election scheduled for November 4, 2014, followed by a general election on December 6, 2014, if necessary. Melanie L. Trosclair, appellant, seeks review of the dismissal of her action objecting to Judge Becnel’s candidacy. For the reasons that follow, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

On August 20, 2014, Judge Mary Hotard Becnel qualified as a candidate in the primary election for Division B of the Fortieth Judicial District Court in St. John the Baptist Parish. On August 29, 2014, Melanie L. Trosclair, a duly-qualified elector in the Parish of St. John the Baptist, filed a petition objecting to |sthe candidacy of Judge Becnel on the ground that she “failed to qualify for the primary election in the manner prescribed by law.” See La. R.S. 18:492(A)(1).

At a bench trial on September 2, 2014, Ms. Trosclair alleged that defects in the notarial execution of Judge Becnel’s qualifying form rendered it a nullity. First, she alleged that the form was not properly sworn before a “notary public,” as required by La. R.S. 18:463(A)(2)(b), which provides in pertinent part that “[t]he [notice of candidacy] certificate shall be executed before a notary public or shall be witnessed by two persons who are registered to vote on the office the candidate seeks.” Relying on La. R.S. 35:12(C)’s mandate that “[n]o person other than a regularly commissioned notary public shall use the title ‘Notary Public[,]’ ” Ms. Tros- . clair argued that because Judge Becnel executed her notice of candidacy before Janet L. Kavanagh, an “ex officio notary public,” Judge Becnel did not qualify before a “notary public” as mandated by La. R.S. 18:463(A)(2)(b).

Ms. Trosclair next argued that Ms. Kav-anagh’s failure to indicate her title as ex officio notary on the qualifying form did not comply with the second sentence of La. R.S. 35:12(C), which provides: “Every person, other than a regularly commissioned notary, who is otherwise given notarial powers or authorized as a notary ex offi-cio, shall clearly indicate his actual position or title from which his authority to notarize is derived, in addition to his notary identification number.”

Ms. Trosclair then claimed that Judge Becnel’s qualifying form did not contain Ms. Kavanagh’s notary identification number assigned by the secretary of state, a violation of La. R.S. 35:12(B), which mandates that “[ejvery document notarized in this state shall bear the notary identification number assigned by the secretary of state....”

|4Ms. Trosclair also argued that Judge Becnel’s failure to swear an oath before a notary public rendered her qualifying form null.

Following the presentation of Ms. Tros-clair’s case-in-chief, counsel for Judge Bec-nel orally moved for an involuntary dismissal pursuant to La. C.C.P. art. 1672(B), arguing that Ms. Trosclair had failed to show a right to relief. The trial court granted the motion, dismissing, with prejudice, Ms. Trosclair’s action. Ms. Trosclair appeals from this dismissal.

DISCUSSION

A motion for involuntary dismissal is governed by La. C.C.P. art. 1672, of which subsection (B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any. judgment until the close of all the evidence.

To avoid an involuntary dismissal of his action, the plaintiff must establish his claim by a preponderance of the evidence. See Christiana v. S. Scrap Recycling, 13-595 (La.App. 5 Cir. 12/27/13), 131 So.3d 1059, 1063. In considering whether the plaintiff has met this burden, the trial court is not required to review the evidence presented in the light most favorable to the plaintiff. Id. A trial court is vested with much discretion when ruling on a motion for involuntary dismissal; and a reviewing court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Id.

In an election contest, the person objecting to the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492; Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048,1049-51; Messer v. London, 438 So.2d 546, | a548 (La.1983). The laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Russell, supra. The purpose of the notice of candidacy is to provide sufficient information to show a candidate is qualified to run for the office he seeks. Senegal v. Obafunwa, 99-1449, 99-1450 (La.App. 3 Cir. 9/27/99), 745 So.2d 74, 76. 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).

With this in mind, we turn first to Ms. Trosclair’s argument that Judge Bec-nel’s qualifying form should be null because it was executed before an “ex officio notary” and not a “notary public.” At trial, Ms. Kavanagh testified that she is employed as a deputy clerk of court in St. John the Baptist Parish. Her “Oath of Office,” executed on July 1, 2008, indicates her position is “Deputy Clerk-Election Supervisor.” And records with the Secretary of State’s Office further reflect Ms. Kav-anagh’s “notary type” as “deputy clerk.”

La. Const. Art. V, § 28 provides that the clerk of the district court in each parish “shall be ex officio notary public[.]” La. C.C.P. art. 287 likewise provides that “[t]he clerk of a district court is ex officio a notary; and, as such, may administer oaths and exercise all of the other functions, powers, and authority of a notary.” And, “a deputy clerk of a court possesses all of the powers and authority granted by law to the clerk, and may perform any of the duties and exercise any of the functions of the clerk.” La. C.C.P. art. 255; see also La. R.S. 18:422. Therefore, by virtue of Ms. Kavanagh’s position as deputy clerk, we find she is authorized by law to “administer oaths and exercise all of the other functions, powers, and authority of a notary.”

While we recognize that La. R.S. 18:463(A)(2)(b) mandates a candidate’s qualifying form “shall be executed before á notary public[,]” we do not find that 16the legislature intended the qualifying form be nullified if executed before an ex officio notary public. For instance, in Hamilton v. Royal Int’l Petroleum Corp., 05-846 (La.2/22/06), 934 So.2d 25, 33, in the context of a tax sale, the Louisiana Supreme Court reasoned that non-compliance with the statutory mandate that the tax collector provide a post-tax sale notice to the taxpayer does not annul the- tax sale because the statute does not provide any penalty or remedy upon the tax collector’s failure to perform this mandatory duty. The court explained:

We are not unmindful that the word ‘shall,’ for purposes of statutory construction, denotes a mandatory duty.... However, statutes classified as mandatory prescribe, in addition to requiring the doing of the thing specified, the result that will follow if they are not done.... Enacting La. R.S. 47:2180(A)(l)(b), the Legislature has prescribed a mandatory duty for the tax collector, but has not prescribed a result of nullity of the tax sale if the tax collector fails to give the post-tax sale notice.... [I]t is not the function of the judicial branch in a civilian legal system to legislate by inserting penalty provisions into statutes where the legislature has chosen not to do so.

Id.

Similarly, in the present case, although La. R.S. 18:463(A)(2)(b) mandates a qualifying form be executed before a “notary public,” in view of the foregoing, we find the execution of Judge' Becnel’s qualifying form before an “ex officio notary public” did not render it null.

Regarding Ms. Trosclair’s argument that Ms. Kavanagh failed to indicate her title as ex officio notary in violation of La. R.S. 35:12(C), the First Circuit Court of Appeal considered a similar argument in Millen v. State Dep’t of Pub. Safety & Corr., 07-0845 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 964, and concluded that a police sergeant’s failure to include his full name and to specify his ex officio notary status did not invalidate an arrest affidavit. We similarly find that such an omission does not invalidate a candidate’s qualifying form for public office.

| /With respect to Ms. Trosclair’s objection that Judge Becnel’s qualifying form did not contain Ms. Kavanagh’s notary identification number as required by La. R.S. 35:12(B), we also find that noncompliance with this does not affect the validity of Judge Becnel’s candidacy. For instance, in Am. Bank & Trust Co. v. Michael, 244 So.2d 882, 884 (La.App. 1 Cir.1971), the First Circuit Court of Appeal recognized in the context of a mortgage that the failure of a notary to comply with La. R.S. 35:11 and 35:12 “may subject him to penalty, but does not affect the validity of the mortgage.” Similarly, the Fourth Circuit Court of Appeal held in the context of a will that “the failure of a notary public to comply with the requirements of La. R.S. 35:12 subjects him to a fine of $100 (La. R.S. 35:13) but does not affect the validity of the document reflecting these omissions.” See Succession of Adler, 334 So.2d 799, 800 (La.App. 4 Cir. 1976).

Regarding Ms. Trosclair’s contention that Judge Becnel’s failure to swear an oath invalidated her candidacy, we note this argument is based upon the language in the qualifying form “Sworn to and subscribed before me, Notary Public[.]” We reject this argument because La. R.S. 18:463 does not require the swearing of an oath.

In view of the foregoing, and considering the liberal construction due election laws, we find the trial court did not manifestly err in granting appellee’s motion for involuntary dismissal.

Lastly, we note that in appellee’s brief to this Court, appellee seeks review of the trial court’s judgment denying the request for damages, attorney’s fees, and sanctions pursuant to La. C.C.P. art. 863 and La. R.S. 18:1432(B). Appellee’s failure to raise this issue by appeal or in an answer to the appeal precludes our consideration thereof. See La. C.C.P. art. 2133.

1 ¡DECREE

The judgment of the trial court granting appellee’s motion for involuntary dismissal and dismissing appellant’s action is affirmed. Costs of appeal are assessed against appellant, Melanie L. Trosclair.

AFFIRMED.

      . Ms. Trosclair also filed a petition objecting to the candidacy of Mona R. Joseph, which is dle subject of a separate appeal before this Court, Trosclair v. Joseph, et al., 14-675. ■

      . At trial, Ms. Trosclair did not argue all of the objections raised in her petition. On appeal,-we consider only those arguments which have been briefed. See Rule 2-12.4(B)(4), Uniform Rules-Courts of Appeal.