author: McCLENDON, J.

text:
    Sarah GROSS Individually and on Behalf of the Class v. STATE of Louisiana THROUGH the LOUISIANA DEPARTMENT OF REVENUE and Kimberly L. Robinson, Secretary, Louisiana Department of Revenue
    2017 CW 0572 And 2017 CA 1137
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    R. Ray Orrill, Jr., Jeffrey L. Oakes, Alex L. M. Ducros, New Orleans, Louisiana And G. Brice Jones, Slidell, Louisiana, Counsel for Plaintiff/Appellee Sarah Gross, Individually and on behalf of the Class
    Christopher K. Jones, Nancy B. Gilbert, Brent J. Cobb, John N. Grinton, Antonio C. Ferachi, Brandea Averett, Baton Rouge, Louisiana, Counsel for Defendants/Appellants State of Louisiana, through the Louisiana Department of Revenue and Kimberly Robinson, Secretary for the Louisiana Department of Revenue
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

The Louisiana Department of Revenue ("LDR") and Kimberly Robertson, Secretary of LDR, seek review of the trial court's judgments certifying a class action and denying their exceptions raising the objections of lack of procedural capacity and improper use of class action procedure. For the reasons that follow, we deny the writ seeking review of the exceptions, vacate the certification of the class as currently compromised, and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Plaintiff in this matter, Sarah Gross, contracted with a solar panel company to purchase and install a solar energy system ("System") at a price of $ 25,000.00 in March of 2015. According to Gross, she was incentivized by the solar energy systems tax credit afforded in LSA-R.S. 47:6030, which was in effect at the time she installed her System. At the time Gross installed her System, LSA-R.S. 47:6030(B)(1) allowed a tax credit for the purchase of a System equal to fifty percent (50%) of the first $ 25,000.00 of the cost of a System provided the System was purchased and installed between January 1, 2008, and January 1, 2018.

In the 2015 Regular Session, the Legislature amended LSA-R.S. 47:6030, effective June 29, 2015, placing caps on the total amount of tax credits awarded as follows: (1) a maximum of $ 10 million for credits claimed on tax returns filed on or after July 1, 2015, and before July 1, 2016; (2) a maximum of $ 10 million for credits claimed on tax returns filed on or after July 1, 2016, and before July 1, 2017; and (3) a maximum of $ 5 million for credits claimed on tax returns filed on or after July 1, 2017. The amended statute further provided that the grant of credits was to be done on a first-come, first-served basis.

In early 2016, Gross submitted her 2015 tax return seeking her tax credit for the System. On July 1, 2016, LDR announced that it had exceeded the $ 10 million cap on System credits for the fiscal year 2015-2016 by $ 14 million. On July 18, 2016, LDR notified Gross that the cap limits were met for both the 2015-2016 and 2016-2017 fiscal years prior to the receipt of her application for the System credit. Gross was further notified that her credit was being reviewed for the 2017-2018 fiscal year, which had a cap of $ 5 million for credits. On August 25, 2016, Gross was notified that her claim had priority status for the 2017-2018 fiscal year and that her 2015 tax return would be processed without the application of the tax credit. Further, LDR informed Gross that the 2017-2018 fiscal year credit would be applied to her account and any resulting refund would be issued between August 15, 2017, and September 30, 2017.

On September 12, 2016, Gross filed a "Class Action Petition" naming the Louisiana Department of Revenue and Kimberly Robinson, Secretary for the Louisiana Department of Revenue, (hereinafter collectively referred to as "LDR"), as defendants. Gross alleged that under the version of LSA-R.S. 47:6030 applicable at the time her System was purchased and installed, she obtained a vested right to the tax credit up to $ 12,500.00. Gross alleged that the amended statute, which was made effective on June 19, 2015, was a substantive law modifying and destroying Gross' vested right to a tax credit for the System she purchased and installed. Gross, alleging that this legislative action is unconstitutional and in violation of her due process rights under the state and federal constitutions, sought a declaration that the retroactive application of the statute, as amended and made effective on June 19, 2015, is unconstitutional. Gross sought recovery of the full amount of her tax credit of $ 12,500.00, plus interest, consequential damages due to the delay and/or denial of the credit, and attorney's fees and costs.

Gross, on behalf of a purported class, also made the following allegations: (1) there were over 1,500 affected taxpayers who purchased and installed Systems prior to the effective date of the amendment to LSA-R.S. 47:6030 ; (2) there were common issues of law and fact; (3) the claims of Gross are typical of the claims of the purported class; (4) she would fairly and adequately represent the class; and (5) that a class action procedure was the superior method for the fair and efficient adjudication of the claims asserted.

On the same day Gross filed the "Class Action Petition," she also filed a motion for class certification and propounded discovery. In her motion for class certification, Gross defined the proposed class as follows:

All persons who purchased and installed a solar electric system at a Louisiana residence in compliance with all of the requirements set forth in La. R.S. 47:6030 prior to June 19, 2015 (the "Purchase"), the effective date of the Louisiana Legislature's passage of Act 131 during the 2015 Regular Session amending La. R.S. 47:6030, who thereby obtained a vested right to a solar energy system tax credit as a result of said Purchase and who: (a) filed a tax return, otherwise complied with the tax credit application requirements set forth in La. R.S. 47:6030, and had any portion of their Purchase-related tax credit(s) withheld or denied; or (b) who timely file[d] a tax return after the filing of this petition and otherwise complied with the tax credit application requirements set forth in La. R.S. 47:6030, and who have any portion of their Purchase-related tax credit(s) withheld or denied.

On October 19, 2016, LDR filed multiple exceptions which are not at issue herein. Thereafter, on February 14, 2017, LDR answered the "Class Action Petition" and filed the dilatory exception raising the objection of lack of procedural capacity and the peremptory exception raising the objection of improper use of class action procedure.

On March 27, 2017, the trial court held a hearing on the motion for class certification and on the exceptions raised in LDR's February 14, 2017 pleading. At the conclusion of the hearing, the trial court denied LDR's exceptions and granted class certification, adopting as reasons for its judgments the memorandums in opposition and support, respectively, filed by Gross. On April 25, 2017, the trial court signed a judgment granting "the Motion for Class Certification sought herein by Plaintiff, Sarah Gross." On May 4, 2017, the trial court signed a judgment denying LDR's exceptions.

LDR timely filed an appeal of the April 25, 2017 judgment certifying the class. A judgment certifying a class is an appealable judgment. LSA-C.C.P. art. 592A(3)(c). On appeal, LDR assigns eight specific errors challenging the trial court's certification of the class.

LDR also timely filed a notice of intent to seek review on writs of the denial of its exceptions raising the objections of lack of procedural capacity and improper use of class action procedure. On July 10, 2017, a panel of this court, apparently recognizing the issues raised in the supervisory writ to be intertwined with those on appeal, referred LDR's supervisory writ application to this panel considering the appeal of the class certification issue.

DISCUSSION

The Department's Application for Supervisory Writs

In its writ application, the Department seeks review of the trial court's denial of its exceptions raising the objections of lack of procedural capacity and improper use of class action procedure. In the writ application, the Department challenges Ms. Gross' representation of those individuals whose claims were denied and who did not seek to appeal their denial to the Board of Tax appeals in accordance with LSA-R.S. 47:1625. In Ulrich v. Robinson , 17-1119 (La.App. 1 Cir. 11/1/18), 265 So.3d 108, 2018 WL 5732837, this court reviewed many of the same issues related to the instant appeal. Specifically at issue therein was class certification of those individuals who were denied the tax credit, whereas this class involves those individuals whose credits were denied and deferred. In Ulrich , the Department, via supervisory writs, also sought review of the trial court's rulings denying its exceptions raising the objections of lack of procedural capacity and improper use of class action procedure. This court denied the writ application, noting that the arguments relative to those exceptions "are more applicable to the issue of whether the class was properly certified." 2018 WL 5732837 at *4. As such, for the same reasons set forth in Ulrich , we likewise deny the Department's writ application and address these issues in the class certification analysis below. Id. Moreover, we deny as moot the Department's motion to supplement the writ application. Even so, we recognize that many of the documents the Department sought to supplement the writ with are included in the record on appeal.

The Department's Appeal

A class action is a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court. Baker v. PHC-Minden, L.P. , 14-2243 (La. 5/5/15), 167 So.3d 528, 537. The purpose of the procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to the representatives who bring the action, but to all others who are "similarly situated," provided they are given adequate notice of the pending class action and do not timely exercise the option of exclusion from the class. Paradise v. Al Copeland Investments, Inc. , 09-0315 (La.App. 1 Cir. 9/14/09), 22 So.3d 1018, 1021.

Louisiana Code of Civil Procedure article 591(A) provides that a class action is a proper procedural device when:

1) The class is so numerous that joinder of all members is impracticable.
2) There are questions of law or fact common to the class.
3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
4) The representative parties will fairly and adequately protect the interests of the class.
5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. This prerequisite shall not be satisfied if it is necessary for the court to inquire into the merits of each potential class member's cause of action to determine whether an individual falls within the defined class.

The five prerequisites for class certification in Article 591(A) are generally called numerosity, commonality, typicality, adequate representation, and an objectively definable class. Display South, Inc. v. Graphics House Sports Promotions, Inc. , 07-0925 (La.App. 1 Cir. 6/6/08), 992 So.2d 510, 518, writ not considered, 08-1562 (La. 10/10/08), 993 So.2d 1274. Under LSA-C.C.P. art. 591(B), each of these requirements must be met for an action to be maintained as a class action.

The party seeking to maintain the class action has the burden of establishing that the statutory criteria have been met. Baker v. PHC-Minden, L.P. , 167 So.3d at 539. Thus, Ms. Gross was required to prove: (1) the five prerequisites of Article 591(A) ; (2) that questions of law or fact common to the members of the class predominate over individual issues; and (3) that the class action is superior to any other method for resolving the controversy fairly and efficiently under Article 591(B).

We note that the class certified by the trial court includes individuals who had any portion of their Purchase-related tax credit(s) withheld or denied. Ms. Gross' claim arises from her tax credit being withheld, not denied. As explained in Ulrich , a plaintiff only has standing to seek review of the denial of a tax credit if they appealed the denial to the Board of Tax Appeals ("BTA"). In Ulrich , this court determined that while putative class members appealed their respective claims to the BTA within the appropriate time period, the record was devoid as to whether the other purported class members appealed to the BTA, making it unclear whether each purported class member had standing in the district court action. If a purported class member lacked standing, this court concluded that the putative plaintiffs cannot represent them in the district court action. As such, this court ultimately determined that the requirements under LSA-C.C.P. art. 591 had not been met such that the trial court manifestly erred in certifying the class.

Under the rationale in Ulrich , Ms. Gross clearly cannot represent those individuals whose claims were denied and who did not seek review with the BTA. We recognize that the certified class at issue here also included all individuals whose claims were deferred as well as those individuals whose claims were denied and who did seek review with the BTA. Ms. Gross could potentially represent those individuals if the certification requirements in LSA-C.C.P. art. 591 are met. Nevertheless, in certifying the class, the trial court included parties whose claims were both denied, whether they sought review from the BTA or not, as well as those individuals whose claims were deferred. In light of Ulrich , however, the class as currently certified is not proper.

Under LSA-C.C.P. art. 592A(3)(d), the trial court can alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action. Given this court's ruling in Ulrich and the authority vested in the trial court under 592A(3)(d), we vacate the class certification and remand this matter to the trial court to consider whether certification of a more limited class is appropriate under LSA-C.C.P. art. 591.

CONCLUSION

For the foregoing reasons, we deny the Department's writ application and we deny as moot the Department's motion to supplement its writ application. Additionally, we vacate the trial court's judgment certifying the matter as a class action and remand this matter to the trial court to determine whether certification of a more restricted class may be appropriate. Costs of this appeal in the amount of $ 2,458.00 are assessed equally between the appellant and appellee.

WRIT DENIED; MOTION TO SUPPLEMENT WRIT APPLICATION DENIED AS MOOT; JUDGMENT CERTIFYING CLASS VACATED; MATTER REMANDED.

      The amended statute also only allowed a tax credit for the purchase of a System equal to fifty percent (50%) of the first $ 25,000 of the cost of a System if the System was purchased and installed between January 1, 2008, and July 1, 2015. See La. Acts 2015, No. 131, § 1.

      Specifically, LDR urged dilatory exceptions raising objections of prematurity and vagueness, a declinatory exception raising the objection of lack of subject matter jurisdiction, and peremptory exceptions raising objections of no right of action and no cause of action. Those exceptions were resolved by the trial court in a March 1, 2017 judgment. That judgment is not at issue herein.

      While it would be preferable for the class to be defined in the judgment itself, the parties do not dispute that the class certified by the trial court was the class set forth in Ms. Gross' motion. Moreover, the class definition was introduced as a separate document at the hearing on the motion and is the same definition provided in Ms. Gross' motion.

      The LDR also filed a motion to supplement its writ application, which motion was also referred to the appeal panel.

      Louisiana Revised Statutes 47:1625 provides the procedure for appealing the disallowance of a claim for a refund and provides as follows:
      A. (1) If the collector fails to act on a properly filed claim for refund or credit within one year from the date received by him or if the collector denies the claim in whole or in part, the taxpayer claiming such refund or credit may appeal to the Board of Tax Appeals for a hearing on the claim filed. No appeal may be filed before the expiration of one year from the date of filing such claim unless the collector renders a decision thereon within that time, nor after the expiration of sixty days from the date of mailing by registered mail by the collector to the taxpayer of a notice of the disallowance of the part of the claim to which such appeal relates.
      (2) A taxpayer's proper appeal to the Board of Tax Appeals within sixty days from the date on any notice of disallowance issued shall also establish that the appeal was filed within sixty days from the date of certified or registered mailing of the notice.
      B. A notice of disallowance, if issued, shall inform the taxpayer that he has sixty days from the date of the certified or registered mailing of that notice to appeal to the Board of Tax Appeals, and that any consideration, reconsideration, or action by the collector with respect to such claim following the mailing of a notice by registered mail of disallowance shall not operate to extend the period within which an appeal may be taken.
      C. In answering any such appeal, the collector is authorized to assert a demand for any tax and additions thereto that he may deem is due for the period involved in the claim for refund or credit, and the Board of Tax Appeals shall have jurisdiction to determine the correct amount of tax for the period in controversy and to render judgment ordering the refunding or crediting or any overpayment or the payment of any additional tax, interest and penalty found to be due.

      In a letter the Department sent to Ms. Gross dated August 25, 2016, the Department indicated, in part:
      The Louisiana Department of Revenue will process your tax return filed in fiscal year 2015-2016 without the solar energy system credit. Once the credit is removed from your return, any refund due will be issued to you before September 30, 2016. If removing the credit creates a balance due, you will receive notification of the balance along with further instructions.
      No additional claim or filing is necessary to receive your solar energy credit in fiscal year 2017-2018. The Department of Revenue will apply your fiscal year 2017-2018 solar tax credit to your account and any resulting refund will be issued to you between August 15, 2017 and September 30, 2017.

      The defendants do not assert that those individuals whose claims were deferred had to file an appeal with the BTA.


source: Caselaw Access Project

author: PERRY, JUDGE.

license: Public Domain

text:
    Billy Joe HARRINGTON, in His Official Capacity as District Attorney for the 10th Judicial District Court, Natchitoches, Louisiana v. Mozella Jeanetter BELL
    19-235
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2019
    T. Taylor Townsend, T. Taylor Townsend, LLC, P.O. Box 784, Natchitoches, LA 71458, COUNSEL FOR DEFENDANT APPELLANT: Mozella Jeanetter Bell
    Steven P. Mansour, Assistant District Attorney, Billy Joe Harrington, District Attorney, Natchitoches Parish, P.O. Box 838, Natchitoches, LA 71458, COUNSEL FOR PLAINTIFF APPELLEE: Billy Joe Harrington, in His Official Capacity As District Attorney for the 10th Judicial District, Parish of Natchitoches, State of Louisiana
    Court composed of John E. Conery, Candyce J. Perret, and Jonathan W. Perry, Judges.
   PERRY, JUDGE.

Mozella Jeanetter Bell (Ms. Bell) appeals the trial court's judgment in favor of Billy Joe Harrington, in his official capacity as District Attorney for the Tenth Judicial District, Natchitoches Parish, Louisiana (DA). Pursuant to the DA's petition for a declaration of vacancy of the office of mayor of Campti under La.R.S. 18:671 -675, the trial court found that Ms. Bell did not meet, and never had met, the continuing dual obligation to be domiciled and actually reside in the town of Campti, Louisiana. Finding no error or manifest error in the trial court's judgment declaring the office of mayor vacant, we amend the judgment to delete a speculative finding, and affirm the judgment as amended.

I.

ISSUE

We must decide whether the trial court manifestly erred in finding that Ms. Bell did not meet the continuing dual obligation of the mayor to be domiciled and actually reside in the town of Campti, or whether the residency defect was curable in February 2019 when Ms. Bell established a residence in Campti.

II.

FACTS AND PROCEDURAL HISTORY

Ms. Bell, approximately forty years of age, was elected as mayor of Campti on November 6, 2018. Ms. Bell obtained 161 votes while her opponent, Roland Smith, garnered 126 votes. Ms. Bell took the oath of office on December 27, 2018. When Ms. Bell had earlier filed her notice of candidacy in July 2018, she designated her domicile as 3365 Highway 480, Campti, Louisiana. The legal description by the Natchitoches Parish Assessor states that this property is about one-half mile west of Campti. Ms. Bell testified at trial that she had lived at the Highway 480 address, which is heir property, from the sixth grade forward; that she knew it was outside the municipality when she filed her notice of candidacy; and that she had never resided in Campti, until she rented a house there in February 2019 for political reasons. Ms. Bell further testified that in the election of November 6, 2018, she did not vote for herself, as she was not on the ballot where she was registered to vote, which was in Clarence, Louisiana.

On January 2, 2019, a registered voter in Campti, Tarlisha Hudson, filed a complaint with the DA, asserting that Ms. Bell did not live at the Highway 480 address and was not qualified for the office of mayor under the Lawrason Act. She requested that the office be declared vacant and that a new election be held. At trial in March 2019, Ms. Hudson testified that she had resided at the same address in Campti for ten years and passed by the Highway 480 address four times a day (to and from work and to and from home for lunch), five days a week, and no one lived in the house. She said the house was boarded up; the gate was locked; green grass grew over the driveway; and an old car that did not appear operable had sat in the yard for years. Ms. Hudson stated that just in the last two weeks, she had seen Ms. Bell there with the gate open.

On January 7, 2019, a registered voter in Campti for eighteen years, CyNita Nash, filed a second complaint with the DA. Ms. Nash asserted that Ms. Bell had used 3365 Highway 480 as her address in qualifying for mayor; that no one had lived there for several years; and that the address was outside the city limits. Ms. Nash added that Campti did not have a charter and was governed by the Lawrason Act. At the March 2019 trial, Ms. Nash said she passed by the property at least twice a month; plywood was on the right side; the weeds were up; the old car had not moved in five to ten years; there was no one entering or exiting the house; there were no pets and no signs of people living there. Ms. Nash said that she was one of the last candidates to qualify for the office of Councilman for the town of Campti and saw Ms. Bell's name. Ms. Nash further stated that she had complained at the registrar's office but was told that Ms. Bell was qualified. After the election, Ms. Nash contacted the ethics board in Baton Rouge and was given the proper procedure to follow at that time in filing her complaint.

Pursuant to La.R.S. 18:671 -675, following complaints of the registered voters, the DA investigated the residency issue in January 2019 and determined that Ms. Bell was not in compliance with the requirements of the office of mayor under La.R.S. 18:581(3) and La.R.S. 33:384. According to the procedural requirements of La.R.S. 18:671 -675, the DA issued an opinion with written reasons, published same in The Natchitoches Times on January 17, 2019, and filed a petition on January 22, 2019, to declare the mayoral office vacant. The hearing was set for February 15, 2019. The DA's research indicated that Ms. Bell's address was 201 Ruby Road in Coushatta, Louisiana, and he requested service at that address.

On February 4, 2019, Ms. Bell executed an affidavit, declaring that her domicile was now 275 Barnum Street in Campti, Louisiana, and attached various documents in support. On February 13, 2019, she filed an exception of no cause of action, asserting that no challenge to her candidacy or her election was made within the time periods required under La.R.S. 18:1405. It further asserted that Ms. Bell had established domicile and residency inside the town limits and was in compliance with La.R.S. 18:672. The exception then stated, "[w]ithout conceding whether there was compliance at the time of the filing of the petition," no statute or caselaw fixes whether the time for meeting the residency requirement was the time of taking office, the time of the DA's investigation, or the time of the vacancy hearing. This exception was subsequently withdrawn before the hearing.

Ms. Bell did not accept service of the petition until February 14, 2019, when she executed an affidavit for that purpose. On that date she also filed a joint motion to continue the February 15 hearing date to February 21, 2019. On February 21, the hearing was reset for February 25, 2019. On February 25, the hearing was reset to March 6, 2019.

On February 25, 2019, Ms. Bell filed her answer, which concluded with a brief exception of prescription, asserting that the time for setting aside the election had prescribed under La.R.S. 33:146.

At the hearing on March 6, 2019, the DA presented the testimony of Tarlisha Hudson and CyNita Nash and entered the evidence of his investigation, which included photographs of the designated domicile on Highway 480 from July 2018 to February 2019. Ms. Bell did not call witnesses but testified on her own behalf, and her attorney presented evidence of her February 2019 residence on Barnum Street in Campti. The trial court took the matter under advisement.

On March 14, 2019, the trial court entered judgment in favor of the DA, finding that Ms. Bell did not meet the continuing, dual residency and domicile requirements of her office. On March 18, 2019, in accordance with the provisions of La.R.S. 18:684(B), Ms. Bell timely filed a suspensive appeal of the trial court judgment.

III.

STANDARD OF REVIEW

The trial court's factual findings regarding domicile are subject to a manifest error standard of review. Herpin v. Boudreaux , 98-306 (La.App. 3 Cir. 3/5/98), 709 So.2d 269, writ denied , 98-0578 (La. 3/11/98), 712 So.2d 859. This is particularly true where determinations regarding the credibility of witnesses are involved, as "[o]nly the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Id. at 270. Questions of law are reviewed de novo. Land v. Vidrine , 10-1342 (La. 3/15/11), 62 So.3d 36.

IV.

LAW AND DISCUSSION

The Lawrason Act

On February 25, 2019, Ms. Bell and the DA filed a joint stipulation which stated that the town of Campti is a Lawrason Act jurisdiction, governed by La.R.S. 33:321 -463. Louisiana Revised Statutes 33:321, entitled "Municipalities governed by mayor-board of aldermen form of government," states: "All municipalities shall be governed by the provisions of this Part except those municipalities governed by a special legislative charter or a home rule charter or plan of government adopted pursuant to Article VI of the Constitution of Louisiana." Pursuant to La.R.S. 33:384 (emphasis added): "The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality ."

The DA filed suit under La.R.S. 18:671 -675. Louisiana Revised Statutes 18:672, entitled "Filing of complaint," states (emphasis added):

When any voter lawfully registered in the district or geographical area from which an officeholder has been elected, or from which an officeholder has been appointed or otherwise selected to hold an office, has reason to believe that the officeholder no longer meets the residence or domicile requirements of that office , the voter may make a written complaint of that fact to the proper official.

Designated Domicile and Elector Status

By her own admission, Ms. Bell was not an elector of the municipality of Campti at the time she qualified as a candidate on July 19, 2018; nor at the time of the election on November 6, 2018; nor at the time she took the oath of office on December 27, 2018; nor at the time of the two complaints on January 2 and 7, 2019; nor at the time of the DA's January investigation, or his published opinion on January 17, 2019, or the filing of his petition for vacancy on January 22, 2019. Thus, at all relevant times, she was not an elector or resident of the municipality of Campti.

The trial court found that Ms. Bell was in violation of La.R.S. 18:581(3), which states (emphasis added):

"Vacancy" occurs in an elective office when the office is or will be unoccupied by reason of the death of the official who was elected to the office, or by reason of his retirement or resignation, removal from office by any means, failure to take office for any reason, or when it becomes certain that the person elected to the office will not take the office on the day when the term for which he was elected commences, or when the person elected to or holding the office no longer meets the residence or domicile requirements of that office , any declaration of retention of domicile to the contrary notwithstanding, or when an office is created due to a reclassification of a municipality.

The trial court found that if Ms. Bell had never lived in the town of Campti, then declaring a vacancy of the office of mayor was appropriate because she surely "no longer meets the residence or domicile requirements of that office." We agree.

Ms. Bell's position at trial was that she could establish a residence in Campti if/after she won the election. On February 25, 2019, she and the DA stipulated to various documents that she had obtained in order to establish a residence at 275 Barnum Street, inside the municipality of Campti, in February 2019. A review of the documents reveals a six-month lease for the Barnum Street property for $ 450.00 a month dated January 24, 2019; however, as pointed out by the trial court, it does not bear Ms. Bell's signature or even her printed name on any part thereof. Other documents bearing the Barnum Street address include a driver's license for Ms. Bell dated January 31, 2019; water service dated February 1, 2019; gas service to begin on February 7, 2019; a bank statement dated February 13, 2019; a vehicle registration with a hole-punch covering the month, but showing the day as the 4th and the year as 2019; and a voter registration confirmed on February 7, 2019.

Based upon the dates of the foregoing proof of residency, and Ms. Bell's own testimony, Ms. Bell was not domiciled in, nor did she actually reside in the municipality of Campti until February 2019. The trial court noted this fact and opined on Ms. Bell's statement at trial that she thought she could move into Campti after she won the election. The court noted that, having won the election on November 6, 2018, Ms. Bell still did not move into Campti until after the January 22, 2019 suit was filed against her. The trial court made other credibility determinations as it discussed the testimony of Ms. Bell regarding the Highway 480 property that Ms. Bell used as her designated residence and domicile when she qualified to run for mayor in 2018. While the trial court found that Ms. Bell's testimony regarding the residence was "largely irrelevant" because it was outside the municipality of Campti, the trial court also found that the testimony was "also largely untruthful."

More specifically, Ms. Bell testified that, while she lived at 3365 Highway 480, she had traveled considerably, doing numerous internships after college in various states around the country. Then, in 2017, she was her mother's caretaker, staying with her at MD Anderson, before her mother died of cancer. She testified that in 2018, she was her brother's caretaker before he died of kidney failure in the VA hospital. Ms. Bell testified that she stayed with relatives during these times and obtained items for her brother from his home in Coushatta. She explained the extremely low electric bills in evidence for the Highway 480 residence, stating that her mother did not like air conditioning, so she used fans. She said only one window was boarded up, and that was due to a break-in. She explained that there was no water service because she had a well, and she produced a receipt for well repair.

The Trial Court's Findings on Designated Domicile

The trial court accurately described the evidence, articulating:

At most, this address was nothing more than an emotional tether to her childhood and to her family and at no time since December of 2017, at least, did she reside or intend to reside there. Photographs of the subject house taken in January of 2019, a time during which Mayor Bell claimed she was residing in the house, show a boarded-up and over-grown homestead that does not look to be inhabited by anyone. Besides the visually questionable soundness of the structure, most telling was the absence of any foot and automobile traffic on the unpaved overgrown grassy tract between the highway and the gate, beyond the gate, and to the "garage" or front door. Further, the utility bills from December of 2017 to January of 2019, totaling $ 193.47 and averaging $ 12.89 per month, suggests no one was living in the house, no matter how little electricity Mayor Bell claims she requires. This court finds it difficult to believe that for the "90 to 120 days a year" she claims to live at the house, she chooses to use fans instead of the air conditioner. It is also noted that during this 14-month period, only two payments were made resulting in two disconnects for non-payment.
The credible testimony of one of the two complaining witnesses, Tarlisha Hudson, supports this finding. Besides noting these same physical conditions of the house, she stated that she passes by the subject house up to four times a day and has never seen anyone at that house for years.
It is the court's finding that all times relevant, the subject house has been unused as a residence by anyone, and that Mayor Bell admittedly used that address as a Campti address for the purposes of running for mayor. It is the court's belief that had the instant petition not been filed, she would still be living in Red River [P]arish or staying in Shreveport with no intention to re-establish her domicile within the town limits of Campti.

The trial court then discussed what it termed as the res nova issue of whether an official can cure the lack of residency and domicile post-election. The trial court determined, under the facts of this case, that one cannot cure the residency defect three months after the election and after suit was filed. After quoting various jurisdictions from other states regarding the purpose of residency statutes, the trial court eloquently opined as follows:

From a more local-government perspective as the subject mayoralty, these requirements keep "frivolous" candidates off the ballot and they work to ensure geographic representation. The requirement that a person has to live in a certain municipality for a set period of time and during their term of office works to better ensure that the municipality's needs receive adequate representation and its character preserved.
Here, the residents of Campti voted for Ms. Bell to be the leader of their town, to live among them, to witness their concerns and, above all, to be accessible, something the residents of the Town of Campti have not had in a mayor since Ms. Bell was sworn in. The residents of Campti voted for a mayor, not a proxy from a neighboring parish. To allow for an official to "cure" the lack of residency requirement by moving post-election into the proper geographic jurisdiction of the office, and perform the perfunctory hoop-jumping to claim legitimacy of residence and domicile, disregards, and thus undermines, these statutory protections and impermissibly rewards the less-than-forthright official by keeping the authority and remuneration that the office provides. To legitimate this practice would morph our practical democracy in a mere facade of one as geo-political movements could be orchestrated and accomplished by a remote few independent of the will of their respective constituencies.

In conclusion, the trial court stated:

It must be remembered that Mayor Bell did not attempt to become a resident within the municipal limits of Campti until after she was sued. Had she "cured" her residency defects before that time, such a material fact could tip the scale on this issue. Here, she did not do so. It is this court's opinion that but for the two complainants, Mayor Bell would have resided indefinitely in Red River Parish or with family in Shreveport. Additionally, and most significant to this analysis, Mayor Bell was never a resident and domiciliary within the municipal limits of Campti thus failing to qualify as a bona fide candidate, ab initio . Therefore, since the purported "cure" would have never occurred without a judicial demand prompted by a whistle-blowing voter, it is not unreasonable that the date of that judicial demand, January 22, 2019, serve[ ] as the deciding benchmark for the purposes of the vacancy statute in this instance.

Curability of Residency Defect

While we agree with the trial court's finding that Ms. Bell was never a resident or domiciliary of Campti and thus failed to qualify as a bona fide candidate in the first place, we do not agree that she might have been able to cure the defect if she had moved into Campti at some time after the election and before suit was filed against her. None of the applicable statutes supply such a cure.

Residency and domicile are continuing requirements and can be challenged under La.R.S. 18:581(3) and La.R.S. 18:671 -675 when the official no longer meets, which for all intents and purposes is synonymous with does not meet, the residency requirements of his/her office. The thrust of Ms. Bell's argument, however, is that an elected official can cure a residency and domiciliary defect, and, this cure can occur after the petition for vacancy is filed . We disagree.

Because Ms. Bell did not provide proof of residency at 275 Barnum Street in Campti until February 2019, she argues that, not only can the residency/domiciliary defect be cured, but also, it can be cured at any time up until the office of mayor is judicially declared vacant . We find this statement is self-serving in that Ms. Bell asserts that no statute sets the time for establishing residence. Nonetheless, she asks this court to set the time for establishing residency at the time of the judgment of vacancy, which in her case was March 14, 2019, after she had rented the Campti house in February. This we decline to do. The time of the March judgment in this case is over four months after the November 2018 election, eight months after the July 2018 qualification notice, and a year and eight months after the date that residency is required under the governing statute.

Further, and of significant importance in this inquiry, the date of the judgment is an arbitrary date for meeting residency requirements that should have been met a year before qualifying because the date of judgment is dependent upon when suit is filed and how many delays and continuances are obtained during the procedure. In this case Ms. Bell established residency in Campti on February 1 after being sued on January 22, 2019, but she did not accept service of the suit until February 14, 2019, and she obtained three continuances of the hearing date. If the date of the judgment, which controls the actual vacancy, also controls the date for first meeting residency requirements, it would be possible for the elected official to stall the date for meeting residency requirements until a time that suits her, which cannot be the intent of the legislature who set tight time constrictions on the processes in the Election Code. Moreover, the vacancy statutes, which are painstakingly detailed, simply do not provide a cure, or a date for curing, a residency defect that has already occurred before the statutes are invoked.

While the trial court's judgment suggests that the date of the DA's petition against Ms. Bell, January 22, 2019, might be an appropriate benchmark for the date to require residency to be met in this case, such date appears nowhere in the governing statutes. Moreover, it is unnecessary to create a residency date when that date has already been created. The Election Code does not preclude other statutes, and in fact, La.R.S. 18:671 and 18:675 specifically include other procedures authorized by law for removing officers and declaring offices vacant.

The trial court found that Ms. Bell was in violation of La.R.S. 18:581(3), also found in the Election Code, which states (emphasis added): " 'Vacancy' occurs in an elective office ... when the person elected to or holding the office no longer meets the residence or domicile requirements of that office [.]" Likewise, "vacancy, as used in th[e] Constitution, shall occur in the event of death, resignation, removal by any means, or failure to take office for any reason." La.Const. art. 10, § 28.

The Time for Meeting Residency Requirements is Fixed

Ms. Bell did not meet the residency requirement when she qualified to run on July 19, 2018, because she had not resided or been domiciled in Campti for the preceding year, which is the time for meeting the residency requirements for candidates in the Election Code at La.R.S. 18:451. It is true that no voter timely filed a challenge to Ms. Bell's qualifications as a candidate under La.R.S. 18:492 within seven days of the qualifying period under La.R.S. 18:493 and 18:1405. However, when Ms. Bell was elected as mayor on November 6, 2018, as an elected official , she was immediately in violation of La.R.S. 18:581(3) and La.R.S. 18:672, because she no longer met the residency requirements of her office and was subject to a declaration of vacancy under those statutes.

Moreover, Ms. Bell was in violation of La.R.S. 33:384 of the Lawrason Act, which mandates (emphasis added): "The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality ." While Ms. Bell argues that no statute or caselaw fixes the time for residency, La.R.S. 33:384 fixes the time for residency at one full year prior to filing the qualifying papers/notice of candidacy. Louisiana Revised Statutes 33:384 of the Lawrason Act is not in conflict with the Election Code, which establishes the same requirement in the candidacy section at La.R.S. 18:451 ; nor is it in conflict with the specific statutes under which the DA brought this action, La.R.S. 18:671 -675.

As the trial court found, there are no Louisiana cases determining that an elected official can cure a residency and domicile defect. However, contrary to Ms. Bell's assertion, there is caselaw involving a city charter, not a Lawrason Act municipality, indicating that the defect cannot be cured. This court in Lestage v. Harris , 18-842 (La.App. 3 Cir. 11/8/18), 261 So.3d 12, writ denied , 18-1851 (La. 2/11/19), 263 So.3d 1151, recently decided that events occurring outside the residency parameters of the governing law under which an official is elected, involving language almost identical to that in the Lawrason Act, do not erase pre-existing residency defects when a vacancy action is brought under La.R.S. 18:671 -675.

In Harris , the defendant argued that issues of residency were really a collateral attack on candidacy, which could not be raised pursuant to La.R.S. 18:492 more than seven days after the qualifying period. But residency is precisely the issue supplying the cause of action for vacancy under La.R.S. 18:671 -675. In Harris , this court found that the residency requirement of the city's charter "reaches back" to a year before the qualifying papers are filed to determine whether a sitting mayor meets the requirements of his office. There, the mayoral candidate qualified to run on January 3, 2018, and was sworn into the office on July 2, 2018. In the previous year, on July 16, 2017, he had changed his homestead exemption back to an old home in the city, but the effort to change his domicile was less than a year before qualifying to run on January 3, 2018. This court found as follows:

Mr. Harris contends that it was error for the trial court to consider any residency events that occurred before he was sworn into office on July 2, 2018. We disagree. Both sections of the city's charter address an "elected" official's dual requirements of being domiciled and actually residing in the city of DeRidder. Section 2-04(1) (emphasis added) reaches back to a year before the qualifying papers were filed, stating that the "council member elected at large[,]" not the candidate, "shall have been legally domiciled and shall have actually resided for at least one (1) year immediately preceding the time ... for qualifying for office in an area which, at the time of qualification, is within the city ." While the DA's petition addresses Section 2-04(2), the continuing obligation of the council member to be legally domiciled and to actually reside in the city, the pleading has been expanded by the evidence, without objection, to include the violation of Section 2-04(1), as originally alleged by the complainant, Mr. Roberts. See La.Code Civ.P. art. 1154.

Harris , 261 So.3d at 19 (second and fourth emphasis added).

Similarly, in almost identical language, the Lawrason Act at La.R.S. 33:384 (emphasis added) states: "The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality ." Thus, the domicile and residency requirement for a sitting mayor under the Lawrason Act does not begin when he/she is elected, or later, when he/she is sworn in, and certainly not another month later after suit is filed against him/her. Rather it reaches back a full year before the filing of the qualification papers. While Harris , which resulted in a declaration of vacancy, is partially distinguishable on the facts because the elected official in that case owned two homes, one inside and one outside the municipality, the governing language for the elected official is almost identical and supportive of a finding that the residency defect cannot be cured.

In asserting that the residency defect is curable, Ms. Bell argues in the negative, stating, "if the legislature had intended to make this defect not curable, it could have stated same in the statute, or it could have fixed the date of status and the fact that once the status is lost, it cannot be regained. No such legislation has been enacted[.]" Ms. Bell does not provide the court with an antecedent for her reference to "the statute" and does not address the applicable statutes that clearly fix the time for meeting residency requirements.

Based upon our analysis, the date for meeting residency requirements is already established as one year prior to qualifying to run for office, pursuant to La.R.S. 33:384, which comports with the requirements in the Election Code at La.R.S. 18:451. If the legislature had wanted to fix the residency date, again, in the vacancy statutes, La.R.S. 18:581 and 18:671 -675, other than "no longer meets," it could have done so. It is only reasonable that the legislature, in drafting the vacancy statutes, assumed that residency requirements had once been met prior to qualifying, and, if it wanted to make the residency requirement "curable" by a specific post-election date or event, it would have done so.

Our jurisprudence has always found that domicile and residence can be changed for political reasons, but the time to effect the change is a year before qualifying, not after. For example, see Cleveland v. Williams , 49,664, p. 7 (La.App. 2 Cir. 9/8/14), 148 So.3d 229, 233 : "A person may change his domicile in order to qualify for a political office so long as that change is genuine and a change in fact, not a fiction to avoid the domicile requirement for qualification." Thus, if Ms. Bell actually and continually resides at 275 Barnum Street in Campti, having officially declared that as her domicile on February 4, 2019, she will be qualified to run for a municipal office in Campti after February 4, 2020, even though she changed her domicile in 2019 for political reasons.

In addition to the statutes discussed above, the DA's appellee brief further points out that Ms. Bell's qualifying, her election, and her designation as an elected mayor are an absolute nullity under La.Civ.Code. art. 7, entitled "Laws for the preservation of the public interest," which states: "Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity." The nullity argument is persuasive since Ms. Bell was a resident and elector of Clarence, not Campti, and thus was not a bona fide candidate when she filed qualification papers. This analysis is also supportive of a finding that the defect in residency cannot be cured.

V.

CONCLUSION

Based upon the foregoing, the trial court's judgment declaring the mayor's office vacant is affirmed on the finding that Ms. Bell never met the residency and domicile requirements of the office of mayor of Campti. To the extent that the trial court's judgment suggests that the residency defect might have been curable at some point before suit was filed, the judgment is amended to delete that finding. Costs of this appeal are assessed against the defendant, Mozella Jeanetter Bell.

AFFIRMED AS AMENDED.

      The trial court judgment denied Ms. Bell's peremptory exception of prescription, stating that La.R.S. 33:146 was not applicable as the DA's action did not contest the integrity or legitimacy of the election, but involved whether circumstances exist for a declaration of vacancy under La.R.S. 18:581(3). Ms. Bell has not raised the trial court's denial of her peremptory exception of prescription in this appeal.

      Under Historical Notes, La.R.S. 33:321 states that the Lawrason Act was passed in 1898 to set forth "a general legislative charter for all municipalities created after its effective date as well as for those created prior to its effective date which chose to accept its provisions."

      See La.R.S. 18:451, entitled "Qualifications of candidates," which provides in pertinent part (emphasis added):
      A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office. In the event that the qualifications for an office include a residency or domicile requirement, a candidate shall meet the established length of residency or domicile as of the date of qualifying, notwithstanding any other provision of law to the contrary.

      The Election Code at Title 18 of the Louisiana Revised Statutes occupies five volumes and is comprised of La.R.S. 18:1 through 18:1951.


author: Pickett, Judge.

text:
    US BANK, N.A., AS TRUSTEE Successor by Merger TO FIRST STAR BANK, N.A., as Trustee for New Century Home Equity Loan Trust, Series 2001-NCI v. Kayla Givs OGLESBY, et al.
    CA 19-251
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 2019
    Stephen W. Rider, Herschel C. Adcock, Jr., Vicki A. Elmer, Natalie White, Jamie Alexandra Bruce, McGlinchey Stafford, PLLC, 601 Poydras Street, 12th Floor, New Orleans, LA 70130, (504) 586-1200, COUNSEL FOR PLAINTIFF/APPELLEE: U.S. Bank, N.A., as Trustee Successor by Merger to First Star Bank, N.A., as Trustee for New Century Home Equity Loan Trust
    Kayla Givs Oglesby, 801 Duck Ave., Eunice, LA 70535, DEFENDANT/APPELLANT: Pro Se
    William Oglesby, 4120 South Indiana Avenue, Apartment 1013, Chicago, Illinois 60653, DEFENDANT/APPELLEE: Pro Se
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   Pickett, Judge.

On April 25, 2019, the plaintiff-appellee, U.S. Bank, N.A., as Trustee Successor by Merger to First Star Bank, N.A., as Trustee for New Century Home Equity Loan Trust, filed a Motion to Strike the Amended Motion and Order for Devolutive Appeal and the Trial Court's Order on the Amended Motion for Devolutive Appeal. For the following reasons, we grant the motion to strike.

On April 8, 2013, the plaintiff filed the instant foreclosure action against the defendant-appellant, Kayla Givs Oglesby. On November 27, 2018, the defendant, pro se, filed an "Injunction to Arrest the Seizure of Sheriff Sale," seeking to enjoin the pending sale of the property subject to foreclosure. The trial court denied the petition on January 28, 2019. On February 27, 2019, the defendant filed a Motion and Order for Devolutive Appeal which was granted that same day, setting a return date of March 28, 2019. This court issued its Notice of Lodging and Briefing Order on April 1, 2019.

On April 2, 2019, the defendant filed, in the district court, an Amended Motion and Order for Devolutive Appeal, seeking the suspension of the pending April 10, 2019 sheriff's sale of the property. An order granting the motion and suspending the sheriff's sale until the resolution of this appeal was signed by the trial court on April 3, 2019.

The plaintiff argues that the defendant did not notify it of her amended motion for appeal as required by La.Code Civ.P. art. 1313 ; thus, the plaintiff was not provided an opportunity to object to the motion. The plaintiff states that it first learned of the motion when it received the Amended Notice of Appeal on April 8, 2019.

Next, the plaintiff asserts that the defenses to an executory proceeding and writ of seizure and sale are set forth in La.Code Civ.P. art. 2642 as follows:

A. Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.
B. A suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of service of the notice of seizure as provided in Article 2721. The appeal is governed by the provisions of Articles 2081 through 2086, 2088 through 2122, and 2124 through 2167, except that the security therefor shall be for an amount exceeding by one-half the balance due on the debt secured by the mortgage or privilege sought to be enforced, including principal, interest to date of the order of appeal, and attorney fees, but exclusive of court costs.

Pursuant to Article 2642, to enjoin the sheriff's sale, the plaintiff maintains that the defendant was required to file a suspensive appeal and post security. Instead of seeking a suspensive appeal as mandated by Article 2642, more than five years after the writ of seizure and sale was issued, the defendant filed for injunctive relief.

Additionally, the plaintiff argues that a devolutive appeal "does not suspend the effect or the execution of an appealable order or judgment." La.Code Civ.P. art. 2087(A). Further, pursuant to La.Code Civ.P. art. 3612, "you cannot have a suspensive appeal from a judgment refusing to grant a preliminary injunction, for if there was no injunction issued, there is nothing to suspend. Hibernia National Bank of New Orleans v. Mary , 167 So.2d 200 (La.App.4th Cir., 1964) ; Utah-Louisiana Investment Company v. International Development, Inc. , 262 So.2d 553 (La.App.1st Cir.[ ] 1972)." Murry v. City of Oakdale , 276 So.2d 368, 371 (La.App. 3 Cir.1973).

Louisiana Code of Civil Procedure Article 3612 provides:

A. There shall be no appeal from an order relating to a temporary restraining order.
B. An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
C. An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
D. Except as provided in this Article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.

The plaintiff argues that the defendant's Amended Motion and Order for Devolutive Appeal actually sought a suspensive appeal which is not allowed from the denial of an injunction. Even if the law allowed a suspensive appeal, the plaintiff maintains that a suspensive appeal requires the trial court to set security in an amount exceeding one-half the balance on the debt to be timely posted by the defendant. La.Code Civ.P. art. 2642. The plaintiff concludes that the defendant's motion was contrary to applicable law.

The plaintiff also argues that at the time the defendant filed the motion, the instant appeal was already lodged in this court; thus, under La.Code Civ.P. art. 2088, jurisdiction was vested in this court. Article 2088 provides:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

The plaintiff concludes that the defendant's motion, as well as her attempt to improperly convert her devolutive appeal to a suspensive appeal without security, was untimely.

In opposition, the defendant argues that she filed the motion and followed the trial court's procedure with a certificate of service as requested. The defendant maintains that the clerk of court subsequently mailed out notices to all parties involved in the case. As such, the defendant moves this court to deny the motion to strike and allow the continuation of the suspension of the sheriff's sale pending resolution of this appeal.

We find that upon its grant of the defendant's original Motion and Order for Devolutive Appeal on February 27, 2019, the trial court was divested of jurisdiction at the time the defendant's Amended Motion and Order for Devolutive Appeal was filed. As such, the trial court was without jurisdiction to consider the defendant's motion. Accordingly, we hereby grant the plaintiff's Motion to Strike the Amended Motion and Order for Devolutive Appeal, striking the motion and the trial court's order granting the motion and suspending the sheriff's sale of the property at issue. Defendant's appeal of the January 28, 2019 judgment will proceed as a devolutive appeal. The remaining issues raised by the plaintiff are rendered moot.

MOTION TO STRIKE AMENDED MOTION FOR APPEAL GRANTED.


author: Judge Tiffany G. Chase

text:
    P & G, LLC, Marion Giardina, Marsha Jones and Anne Livadais v. SHINGLE POINT, LLC, et al.
    NO. 2018-CA-0748
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 15, 2019
    Thomas J. Barbera, BARBERA LAW FIRM, 4645 Carthage Street, Metairie, LA 70002, Andrew A. Lemmon, LEMMON LAW FIRM, LLC, 15058 River Road - P.O. Box 904, Hahnville, LA 70057, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Mark A. Pivach, Timothy Thriffiley, PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C., 8311 Highway 23, Suite 104 - P. O. Box 7125, Belle Chasse, LA 70037, F. Sherman Boughton, Jr., CHRISTOVICH & KEARNEY, LLP, 601 Poydras Street, Suite 2300, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

This appeal involves a petitory action over batture. Appellants P & G, LLC; Marsha Jones; and Anne Livaudais (collectively "P & G") seek review of the trial court's judgment denying P & G's demand to name it owner of certain batture and granting Appellees' reconventional demand declaring Shingle Point, LLC and First Equity, Inc. (collectively "Shingle Point") the owners of the batture. Finding no error in the trial court's ruling, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The disputed batture is located on land formerly known as the Harlem Plantation, which is situated on the east bank of Plaquemines Parish.

On June 28, 1946, John and Florian Lopez (hereinafter "the Lopez Brothers") acquired Harlem Plantation from Terrebonne Land Development Corporation. Later that year, the Lopez Brothers commissioned J.C. DeArmas, Jr., to prepare a survey (hereinafter the "DeArmas Survey") subdividing the land into individual lots. Between 1947 and 1951, the Lopez Brothers sold several of these lots and partitioned the remaining lots amongst themselves. On January 14, 1952, Florian Lopez sold his half, on which the lots and batture relevant to the case sub judice are located, to Charles S. Potter (hereinafter "Mr. Potter"). The act of sale between Mr. Potter and Florian Lopez stated that the "tract of land hereby conveyed fronts on the Mississippi River, and this sale covers and includes all battures, accretions, and all riparian rights which appertain or belong to said tract of land."

Between 1952 and 1958, Mr. Potter sold several individual lots. Some of the acts of sale contained specific language transferring riparian rights and batture, while other acts of sale contained no such language. Through a series of subsequent transactions, Shingle Point ultimately became owner of the lots relevant to this appeal.

P & G filed the instant petitory action alleging ownership of batture emanating from the 1952 act of sale between Florian Lopez and Mr. Potter. In response, Shingle Point filed a reconventional demand seeking to be adjudged the owner of the batture. At trial, the parties stipulated that the acts of sale described the relevant lots as follows:

Lot is designated by Number 1 on the plan of Harlem Subdivision by John de Armas, 1946, according to which said plan of subdivision, the said lot measures 192 feet, front on Mississippi River.

P & G argues the DeArmas Survey does not reflect the lots' boundary lines as going to the river and that it separately reflects the batture as bounded on all four sides (hereinafter the "DeArmas Line"). P & G further maintains that, in the absence of express language granting title to the batture, Mr. Potter retained the batture when the lots were sold.

Following the trial, the trial court ruled in favor of Shingle Point, declaring it owner of the batture and dismissing P & G's claims. While it considered testimony from several lay witnesses who testified regarding the height of the batture at the time of the acts of sale, the trial court ultimately accepted and adopted the conclusion of Mr. Stephen Estopinal (hereinafter "Mr. Estopinal), Shingle Point's expert in land surveying. In its written reasons for judgment, the trial court found Mr. Estopinal's testimony credible, citing his opinion that the use of the phrase "front on the river" evidenced intent to sell all lands up to the Mississippi River. The trial court also cited Mr. Estopinal's testimony regarding the custom of using a meander line stopping at a river road rather than at the river itself. Further, the trial court adopted Mr. Estopinal's opinion that batture was excluded from the sale only if it was specifically excluded. Conversely, when the acts of sale were silent, batture was automatically included. P & G appeals the trial court's ruling.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). This standard demands great deference to the trier of fact's findings. Id. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id.

DISCUSSION

As cases dealing with batture are increasingly rare in recent years, we first discuss the historical foundation of batture. Accretion formed successively and imperceptibly on the bank of a river is called alluvion. La. C.C. art. 499. Batture refers to lands of alluvial origin formed by imperceptible deposits of material - it has the same meaning as accretion. 2 LA. CIV. L. TREATISE, PROPERTY § 5:9 (5th ed.). Louisiana jurisprudence regarding land at the water's edge dates back to the nineteenth century and involves property transfers taking place as early as the eighteenth century. Barbera v. Midway Land Co. , 453 So.2d 645, 647 (La.App. 5th Cir. 1984). The early cases held that where an estate is bounded by the Mississippi River or is described as fronting on the river, then it is understood to include the rights to any alluvion that may form, at the same time being subject to any diminution from erosion of the banks. Morgan v. Livingston , 6 Mart. (o.s.) 19, 225 (La. 1819), 1819 WL 1297. Morgan was followed in La Branche's Heirs v. Montegut , 47 La.Ann. 674, 676-77, 17 So. 247, 248 (1895), and Meyers v. Mathis , 42 La.Ann. 471, 475, 7 So. 605, 606 (1890) ; see also Hayward v. Noel , 225 So.2d 638, 640 (La.App. 1st Cir. 1969).

The right to accretion is an accessory of the riparian estate; however, once alluvial soil has so built up along the water's edge as to appear above the water at its ordinary stage, the resulting land or batture becomes susceptible of ownership separate from the riparian estate. Maginnis Land & Improvement Co. v. Marcello , 168 La. 997, 1003-04, 123 So. 653, 655 (1929) ; State v. Richardson , 140 La. 329, 339, 72 So. 984, 988 (1916). If the batture has so formed at the time of sale of property belonging to a riparian estate, it must be specifically mentioned in the act of sale to be transferred to the new owner. Ferriere v. City of New Orleans , 35 La.Ann. 209, 210 (1883) ; Cambre v. Kohn , 8 Mart (n.s.) 572, 579 (La. 1830), 1830 WL 2408 ; Tassin v. Rhynes , 366 So.2d 580, 584 (La.App. 3d Cir. 1978) ; Tregre v. Lasseigne , 413 So.2d 218, 220-21 (La.App. 4th Cir. 1982).

To succeed in its petitory action, P & G is required to prove an unbroken chain of valid title to the batture at issue. La. C.C.P. art. 3653 ; Hooper v. Hero Lands Co. , 2015-0929, p. 9 (La.App. 4 Cir. 3/30/16), 216 So.3d 965, 972 (burden of proof on plaintiff where defendant is in possession of the property).

P & G submits three assignments of error. However, these assignments of error present two related inquiries for review. The first inquiry is whether express language was required in the acts of sale in order to transfer the batture. The second inquiry is whether the batture was excluded from transfer by the boundary lines drawn on the DeArmas Survey. Both inquiries turn on questions of fact, and both questions of fact concern the same evidence. We address each in turn.

EXPRESS LANGUAGE REQUIREMENT

Since the earliest days of Louisiana's jurisprudence, the height and magnitude of batture has controlled whether the transfer of batture must be expressly stated in an act of sale. See Morgan , 6 Mart. (o.s.) at 233-34, 1819 WL 1297. The act of sale must be specific when the batture becomes susceptible of ownership separate from the riparian property. Barbera , 453 So.2d at 648 ; Tregre , 413 So.2d at 221. Whether batture has been formed of sufficient height and magnitude to be susceptible of separate ownership is a question of fact. Cire v. Rightor , 11 La. 140, 142 (1837), 1837 WL 754. P & G, as plaintiff in the petitory action, bore the burden of proof at trial.

In the case sub judice , the relevant time period for consideration is dictated by the acts of sale, which were entered into between 1947 and 1958. Considering the expert and lay testimony, the trial court found the disputed batture never formed of sufficient height to be susceptible to separate ownership during the relevant time period.

Shingle Point's survey expert, Mr. Estopinal, testified that the phrase "front on the river" is understood to mean that an act of sale was meant to grant all property, including the batture, up to the river. Similarly, P & G's survey expert, Jay Dufrene (hereinafter "Mr. Dufrene"), acknowledged that, standing on its own, the phrase means the lots would go up to the river. This interpretive concept has been recognized by our Supreme Court for two hundred years. See Morgan , 6 Mart. (o.s.) at 225, 1819 WL 1297 (barring an absurd result, "the expression, frente al rio, in the deed, [is] evidence of the intention of one of the parties to convey, and of the other to acquire, a riparious estate"). As will be discussed subsequently in this opinion, such evidence also assists in the interpretation of the boundaries on the DeArmas Survey.

Further probative of whether the batture was of sufficient height was that it was not indicated as a separate lot or otherwise separately labeled. See Morgan, 6 Mart. (o.s.) at 218-20, 1819 WL 1297. Mr. Estopinal testified this was because the land was not useable. Isaac Gregorie, Jr., Shingle Point's title expert, corroborated Mr. Estopinal's opinion that if the batture was intended to be a separate parcel of land, it would have been indicated as such on the DeArmas Survey. Similarly, on direct questioning from the trial court, Mr. Estopinal stated the "front on the river" language was sufficient to transfer the batture in the partition between the Lopez Brothers. As the Lopez Brothers originally commissioned the DeArmas Survey, their partition would have used express language transferring batture to Florian if the height and magnitude of the batture so required. Likewise, Lee Miller, P & G's title expert, conceded that express language was not required to transfer the batture in the Lopez Brothers' partition; otherwise, Florian would not have been able to subsequently sell the batture to Mr. Potter.

The lines on a survey are not always indicative of the actual boundary lines of a piece of property. Mr. Estopinal explained that it was the customary practice for surveyors to make use of meander lines. According to Mr. Estopinal, meander lines do not indicate the actual boundary but are instead drawn to the edge of usable dry land. This practice was extremely common given the difficulties in surveying batture due to its marshy nature. Mr. Dufrene acknowledged this custom and further admitted he did not know why the DeArmas Line was drawn where it was. He also conceded that Mr. Estopinal had more experience than him in surveying lands on the east bank of Plaquemines Parish.

In light of the above testimony and evidence, we find the trial court did not err in determining no express language was required to effectuate the transfer of the batture. Implicit in its judgment is a finding that, at the relevant time period, the batture was not of sufficient elevation above the water in such a way as to give it a reasonable appearance of permanence. The trial court, relying on Mr. Estopinal's testimony, noted the lack of usable land between the meander line on the DeArmas Survey and the low water mark of the river. It is the province of the trial court to weigh the evidence and to make a factual determination on the susceptibility of batture to separate ownership. See Cochran v. Fort , 7 Mart. (n.s.) 622, 625-26 (La. 1829), 1829 WL 1683. An appellate court may not substitute its factual findings for those of the trial court even though the appellate court may feel its own evaluations and inferences are equally as reasonable. Rosell , 549 So.2d at 844. Accordingly, we find this argument without merit.

DESIGNATION OF OWNERSHIP BY BOUNDARY LINES AND INTENT

Where there is a discrepancy between a survey and a written description in an act of sale, the survey controls. Maginnis , 168 La. at 1003, 123 So. at 654-55. P

& G maintains that its interpretation of the DeArmas Survey and boundary lines suggests batture was excluded in the acts of sale. In ascertaining the location of disputed lines on a survey, natural objects and monuments are of greater importance than artificial monuments, courses and distances. Morris v. Sigur , 584 So.2d 729, 731 (La.App. 4th Cir. 1991) ; Meyer v. Comegys , 147 La. 851, 857, 86 So. 307, 309 (1920). Further, the determination of a boundary is a question of fact. Hooper , 2015-0929, p. 19, 216 So.3d at 977 (citing Morris , 584 So.2d at 730 ). In ruling that the acts of sale at issue transferred the batture, the trial court made a factual determination that the DeArmas Survey and acts of sale were consistent.

Shingle Point's survey expert, Mr. Estopinal, concluded there was no discrepancy between the DeArmas Survey and the acts of sale. As discussed elsewhere in this opinion, Mr. Estopinal testified to the customs and practices of land surveying in the area. Use of the term "front on the river," the practice of using meander lines, and the fact that the batture was not specifically indicated as a separate lot, served as the basis for his expert opinion. These customs are in accord with the aforementioned legal guidelines for determining boundaries: natural monuments outrank artificial monuments. Meyer , 86 So. at 309 ; Morgan , 6 Mart. (o.s.) at 233, 1819 WL 1297 ("the intervention of [a] public road, between the [property] and the river, cannot be considered as proof of the intention of the parties to give the land conveyed another boundary than the river"). The trial court, in assessing the credibility of the experts, chose to accept the testimony of Mr. Estopinal. Our review of the record confirms the trial court was within its discretion in making this factual determination. See Morris , 584 So.2d at 730-31 (citing Rosell , supra ). We find this argument without merit.

P & G also maintains the trial court erred by not considering Mr. Potter's intent in interpreting the acts of sale. P & G asserts the express language used in some of the acts of sale evidences Mr. Potter's intent, as a savvy real estate developer, not to sell the batture on the remaining lots at issue - it was an intentional decision on his part to omit its transfer.

Contrary to P & G's contention, we find the trial court did take Mr. Potter's intent into consideration. As Mr. Estopinal explained, determining the intention of a seller requires consideration of the language of an act of sale. Mr. Estopinal further elaborated that one cannot perform a survey unless they review the title. P & G acknowledged that the "front on the river" language was a holdover from prior transactions. Mr. Estopinal considered this language to indicate Mr. Potter's intent. See Morgan , 6 Mart. (o.s.) at 226, 1819 WL 1297 ("on the inspection of the deed, it appears to us the words front to the river, used therein, were intended to denote a riparious estate bordering on the river"). As an experienced real estate developer, Mr. Potter would have removed this language to reflect a different intent. Further, Mr. Potter's daughter, Mrs. Marion Giardina, admitted she did not necessarily know what her father's intent was when he sold the lots given that she was relatively young at the time. Accordingly, we find this argument without merit.

DECREE

For the foregoing reasons we affirm the judgment of the trial court dismissing the petitory action of P & G and declaring Shingle Point as owner of the batture at issue.

AFFIRMED

      Marion Giardina (hereinafter "Mrs. Giardina"), sole member of P & G, was voluntarily dismissed from the litigation as a party plaintiff on her own motion.

      At trial, the acts of sale from these transactions were submitted into evidence as joint exhibits.

      Mr. DeArmas' name is styled in varying ways in the pleadings, acts of sale, and other documents in the record. In this quotation, we use "de Armas" as it is a verbatim reproduction of the trial transcript.

      This includes batture on lots previously sold by the Lopez Brothers prior to the partition. The theory is that as batture on any previously sold lots was not expressly mentioned in their respective acts of sale, it was not transferred until Mr. Potter acquired the batture as his transaction with Florian Lopez expressly provided for its acquisition.

      In the instant case, because both parties can trace their title back to a common owner, the Lopez Brothers, the plaintiffs must prove their title back to the common owner. Barbera , 453 So.2d at 647 (citing Weaver v. Hailey , 416 So.2d 311, 317 (La.App. 3d Cir. 1982) ).

      Our courts have routinely considered evidence in the form of testimony of "ancient inhabitants of the neighborhood," surveys referenced in the sales, and the opinions of expert surveyors in making this factual determination. Morgan , 6 Mart. (o.s.) at 217-22, 1819 WL 1297.

      In contrast, our Supreme Court found no such evidence of intent when a deed used the words "front on the levee." See, e.g. , Livingston v. Heerman , 9 Mart. (o.s.) 656, 718-21 (La. 1821), 1821 WL 1374 ; Ferriere , 35 La.Ann. at 211. Or when there exists, at the time of sale, another parcel of land held by the vendor between the property sold and the river. Cambre , 8 Mart. (n.s.) at 579-80, 1830 WL 2408 ("[i]n this last case, the words front to the river, must be taken as merely descriptive...").

      That Mr. Potter chose to use express language is not necessarily proof the batture at issue was of sufficient height to be susceptible to separate ownership. See Meyers , 42 La.Ann. at 475, 7 So. at 606 (express mention of batture conveyed in other titles at an auction was superfluous as all the property sold extended to the river).

      "[T]he lines of a plan, especially one made to ascertain the quantity of land sold, ought only to include the ground which is measured, and not ... batture under the surface of the water, which pass[es] as an accessory to a riparious field: this need not be surveyed." Morgan , 6 Mart. (o.s.) at 233, 1819 WL 1297.


author: SAUNDERS, Judge.

text:
    Kelly DOUCET, Michael Ceasar and Brittany Lacombe v. HORNET SERVICE COMPANY, et al.
    19-241
    Court of Appeal of Louisiana, Third Circuit.
    May 22, 2019
    Kenneth Alfred Doggett, Attorney at Law, P.O. Box 13498, Alexandria, LA 71315-3498, (318) 487-4251, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Kelly Doucet, Brittany LaCombe
    Michael J. Remondet, Jr., Juliette Busby Wade, Jeansonne & Remondet, P.O Box 91530, Lafayette, LA 70509, (337) 237-4370, COUNSEL FOR DEFENDANTS/RESPONDENTS: Colony Insurance Company, Kenneth DeMary, Hornet Service Company
    Patrick Daniel, Rachel Martin Deckelmann, Daniel & Associates, 7941 Katy Freeway, Box 791, Houston, TX 77024, (713) 589-3539, COUNSEL FOR PLAINTIFF/APPLICANT: Michael Ceasar
    Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.
   SAUNDERS, Judge.

Relator, Michael Ceasar, seeks supervisory writs from the judgment of the Thirty-First Judicial District Court, Parish of Jefferson Davis, the Honorable C. Steve Gunnel, presiding, which denied Relator's motion for reduction of estimated appeal costs.

STATEMENT OF THE CASE

This case arises out of an automobile accident which occurred on March 5, 2013, in a parking lot at a pawn shop in Jennings, Louisiana. Relator and his co-plaintiffs, Kelly Doucet ("Doucet") and Brittany Lacombe ("Lacombe"), filed the instant personal injury lawsuit against Kenneth DeMary ("DeMary"); his employer, Hornet Service Company, L.L.C. ("Hornet"); and Hornet's insurer, Colony Insurance Company. At the time of the accident, Relator was a passenger in a vehicle being driven by Doucet when that vehicle collided with a vehicle that DeMary was driving and backing out of a parking space. Relator's claims were tried by a jury on August 20-24, 2018. Simultaneous with Relator's jury trial, a joint bench trial was held for the claims of Doucet and Lacombe. With regard to the jury trial of Relator's claims, the jury returned a verdict finding no negligence on the part of either driver and awarding no damages to Relator. With regard to the bench trial of the claims of Doucet and Lacombe, the trial judge found: 1) that the two drivers (Doucet and DeMary) were each 50 percent at fault for the accident; 2) that Doucet and Lacombe had not suffered any damages as a result of the accident; and 3) that DeMary was not acting within the course and scope of his employment at the time of the accident.

Relator filed several post-trial motions, including a motion for judgment notwithstanding the verdict, motion for new trial, and motion to vacate judgment. The trial court denied those motions. Also, Defendants filed a motion to tax costs pursuant to La.Code Civ.P. art. 970. Additionally, Defendants filed a motion to traverse Relator's pauper status on the ground that Relator had abused the integrity of the judicial process with excessive frivolous pleadings which had resulted in excessive court costs and defense costs. The trial court granted that motion to traverse, and Relator's pauper status was revoked. Doucet and Lacombe retained their pauper status. Relator filed a motion for reconsideration of the ruling revoking his pauper status and that matter was scheduled to be heard on April 9, 2019. However, on April 8, 2019, Relator withdrew his motion for reconsideration.

Meanwhile, with regard to the final judgments which had been rendered on the merits of the case, Relator filed a motion for appeal and his co-plaintiffs (Doucet and Lacombe) also filed a joint motion for appeal.

By the instant writ application, Relator seeks to have this court reverse a judgment denying a motion for reduction of appeal costs which Relator had filed pursuant to La.Code Civ.P. art. 2126(C). The estimated appeal costs total $ 56,225.50.

"The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ." Johno v. Doe , 16-0200, p. 4 (La.App. 4 Cir. 8/17/16), 198 So.3d 1216, 1218 (citations omitted).

ON THE MERITS

With regard to the payment of appeal costs, La.Code Civ.P. art. 2126 provides as follows:

A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.
B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.
C. The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty day time limit, and the trial court may order reduction of the estimate upon proper showing . If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs beginning from the date of the action by the trial court on application for reduction.
D. After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs. If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.
F. If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.

(Emphasis added.)

In the instant case, Relator argues that the estimated appeal costs of $ 56,225.50, including a record charge of nearly $ 50,000.00 at the cost of $ 5.00 per page, are excessive. Relator notes that he had initially sought to file a suspensive appeal and that at that point, the estimated appeal costs for the suspensive appeal were $ 47,956.50. However, Relator contends that when he changed his appeal to a devolutive appeal, the estimated appeal costs went up to $ 56,225.50. Relator notes that while the invoice for the suspensive appeal charged $ 5.00 per page for some parts of the record and $ 2.00 per page for other parts of the record, the invoice pertaining to the devolutive appeal charges $ 5.00 per page for the entire record. Relator contends that the reason for the distinction in those charges in unclear. At any rate, Relator argues that the $ 5.00 per page charge is excessive and will unreasonably hinder him from appealing the jury verdict rendered in this case. Relator asserts that the trial court failed to take into consideration the excessiveness of the $ 5.00 per page charge for a copy of the record because the trial court was only concerned with insuring that the clerk of court's office gets paid for the work that it has done.

Relator notes that at the hearing on the motion to reduce excessive appeal costs, the trial court did not hear any testimony or receive any briefing from the clerk of court's office. However, Relator contends that the trial court did consider Defendants'

position on the motion to reduce excessive estimated appeal costs. Relator argues that the trial court erred when it considered Defendants' position because Defendants do not have standing to object to a reduction of the estimated appeal costs. In that regard, Relator points out that Defendants will not be responsible for preparing the appeal record and that they are not the ones to whom appeal costs are owed. Also, Relator contends that Defendants will not be harmed or prejudiced if Relator's appeal costs are reduced and that Defendants will not benefit if the instant writ application is denied. Relator accuses Defendants of using exorbitant appeal costs charged by the clerk of court to their advantage to prevent Relator from appealing an unfavorable verdict against him. Relator asserts that the excessive appeal costs are hindering his constitutional right of access to the courts.

Additionally, Relator notes that he amended his motion for reduction of estimated appeal costs. Relator contends that by that amended motion, he sought to have the trial court allocate the estimated appeal costs in a fair and equitable manner among the three co-plaintiff-appellants. In that regard, Relator maintains that the trial court should have required each of the three co-plaintiffs to pay one-third of the appeal costs. Instead, Relator contends that the trial court determined that Relator should pay all the costs of the appeal. Meanwhile, Relator notes that because his co-plaintiffs (Doucet and Lacombe) maintain their pauper status, they are able to pursue their appeal without paying a penny in appeal costs. Relator argues that because he is unable to bear the burden of the entire appeal, the allocation of all the estimated appeal costs to Relator violates his constitutional right to access to the appellate court.

In their opposition to the instant writ application, Defendants take the position that the trial court did not err when it denied Relator's motion for a reduction of estimated appeal costs. Defendants contend that the $ 5.00 per page fee for an appeal record is reasonable, and they note that such a fee has previously been upheld by this court in Thornton v. Wolf , 07-135 (La.App. 3 Cir. 5/30/07), 958 So.2d 131. Also, Defendants assert that Relator's motion should not be granted because Relator took a low-impact parking lot fender bender case and turned it into a major litigation, raising a variety of issues that had no basis in law or fact, such as intoxication allegations and Federal Motor Carrier Act claims. Defendants argue that these issues and others created by Relator required an extensive motion practice and caused the record to be much larger than it would have been without all the extraneous issues that Relator raised. Defendants contend that after creating a bloated record, Relator chose not to designate the appeal record to exclude his frivolous filings, reduce the amount of work required by the clerk of court's office, trim the record for an efficient appeal, and reduce his appeal costs. Defendants argue that other than his claim that the appeal costs are excessive, Relator does not provide any support for a reduction in estimated appeal costs.

Also, Defendants contend that if Relator is allowed to pay only one-third of the appeal costs, then the clerk's office for the district court runs the risk of losing the other two-thirds of the estimated appeal costs, plus the $ 18,557.00 that Relator already owes to the clerk's office. According to Defendants, the issue is not about denying Relator access to the appellate court, but rather, the issue is about making Relator responsible for the risks and costs of appealing. Further, Defendants point out that the trial court previously found that Relator abused the system by filing frivolous and unnecessary motions and revoked his pauper status because of it.

Additionally, Defendants assert that they have standing to oppose Relator's motion to reduce estimated appeal costs because they are materially affected by Relator's continued pursuit of this action. Defendants argue that even if it is determined that Defendants do not have standing, their brief should be considered as an amicus brief.

We find that there is merit to Defendants' argument that Relator, who has had his pauper status revoked due to abuse of the legal process, is responsible for a voluminous trial record resulting from his excessive filings, including some frivolous filings that resulted in sanctions against Relator. Although Relator objects to the $ 5.00 per page charge, this court noted in Thornton , 958 So.2d 131, that La.R.S. 13:841(A)(10) permits the district court clerks to charge up to $ 5.00 per page for the preparation of the appeal record. Importantly, as noted by the trial court in the instant case, Relator chose not to exercise the option of designating the appeal record in order to reduce his appeal costs. Accordingly, we find no abuse of discretion in the trial court's ruling.

WRIT DENIED.