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Irvin v. Brown

Court of Appeals of Louisiana, Fourth Circuit

July 28, 2017

ADAM IRVIN, CARL IRVIN AND LONNIE HAMMOND, JR.
v.
HOWARD ANTHONY BROWN AND THE HONORABLE ARTHUR A. MORRELL

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-07039, DIVISION "J" HONORABLE Cherrell Sims Taplin, PRO TEMPORE.

          Charles Ferrier Zimmer, II Daniel Ernest Davillier DAVILLIER LAW GROUP., COUNSEL FOR PLAINTIFFS/APPELLANTS.

          Howard A Brown, Pro Se, DEFENDANT/APPELLEE/IN PROPER PERSON.

          Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Paula A. Brown.

          PAULA A. BROWN JUDGE.

         This is an election suit. Plaintiffs, Adam Irvin, Carl Irvin, and Lonnie Hammond, Jr. (collectively, "Plaintiffs"), appeal the trial court's judgment overruling Plaintiffs' objection to the candidacy of the defendant, Howard Anthony Brown, for Assessor of Orleans Parish. Plaintiffs contend that Mr. Brown falsely certified on his Notice of Candidacy form that he had filed his state and federal income taxes or was not obligated to file taxes, in contravention of La. R.S. 18:463(A)(2)(a)(iv).[1] For the reasons that follow, we reverse the judgment.

         FACTUAL AND PROCEDURAL HISTORY

         Mr. Brown filed a Notice of Candidacy form to qualify as a candidate for Assessor of Orleans Parish. Paragraph 8 of the form required Mr. Brown to certify that he had filed his federal and state income taxes for previous five years, had filed for an extension of time for filing or was not required to either file a federal or state income tax return or both. In response to Mr. Brown's certification, Plaintiffs filed a "Petition for Action Objecting to Candidacy"[2], seeking to disqualify him as a candidate. Plaintiffs averred that Mr. Brown's certification in Paragraph 8 of the form was false.

         The matter was set for trial on July 24, 2017. At trial, Plaintiffs introduced into evidence Mr. Brown's Notice of Candidacy form, a public records request made to the Louisiana Department of Revenue ("LDR"), and the LDR's response to the request. Plaintiffs individually testified that the basis for their respective objections to Mr. Brown's candidacy was that he falsely certified that he filed his state income tax returns for each of the previous five years.

         Bradley Blanchard, LDR's representative, verified that LDR received a public records request inquiring whether or not Mr. Brown was current in filing his Louisiana tax returns. Mr. Blanchard testified that LDR's records confirmed that Mr. Brown had filed tax returns for 2012, 2013, and 2014; however, LDR could not confirm that he filed for 2015 and 2016.

         Mr. Brown testified, on his behalf, that he was not required to file federal tax returns in 2015 and 2016 because "you have to earn income to do that." Because he was not required to file federal tax returns, he testified he also was not required to file state income tax returns. In response to direct questioning from the trial court, Mr. Brown reiterated that he did not file income tax returns for 2015 and 2016 because he did not earn any income.

         On cross-examination by Plaintiffs' counsel, Mr. Brown acknowledged that he had no documentary evidence to show that he filed state income tax returns for 2015 and 2016, and had no documentary records to establish he was not required to file a tax return. Mr. Brown explained that he was self-employed, that he was the sole proprietor at A.J.A. Electric, and that he did not receive any compensation generated by A.J.A. Mr. Brown testified, however, that he and A.J.A. are one and the same, and "[w]hen A.J.A. Electric do (sic) work, … and A.J.A. Electric collect (sic) any type of compensation, [he] collect (sic) compensation." Under further questioning, Mr. Brown conceded that A.J.A. was compensated and may have received "some type of money" for work; nevertheless, he maintained that A.J.A. did not receive any income or profit for 2015 and 2016. Mr. Brown testified his certification on Paragraph 8 was to that portion which provided that he "was not required to file either a federal or state income tax return."

         The trial court found Plaintiffs presented a prima facie case that Mr. Brown had not filed federal or state tax returns in 2015 and 2016, and that he had not requested any filing extensions. Nonetheless, the trial court found that Plaintiffs had not met their burden of proof on the issue of whether or not Mr. Brown was required to file federal or state tax returns in 2015 and 2016. Accordingly, the trial ...


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