Burton v. Jardell

589 So. 2d 610, 1991 WL 226591
CourtLouisiana Court of Appeal
DecidedOctober 30, 1991
Docket22,991-CA
StatusPublished
Cited by7 cases

This text of 589 So. 2d 610 (Burton v. Jardell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burton v. Jardell, 589 So. 2d 610, 1991 WL 226591 (La. Ct. App. 1991).

Opinion

589 So.2d 610 (1991)

Virginia BURTON, Plaintiff-Appellee,
v.
Marcie JARDELL, Defendant-Appellant.

No. 22,991-CA.

Court of Appeal of Louisiana, Second Circuit.

October 30, 1991.

*611 Carso & Noel by Robert S. Noel, II, Monroe, for appellant.

Virginia Burton, in Pro. Per.

Before MARVIN, LINDSAY and HIGHTOWER, JJ.

LINDSAY, Judge.

The defendant (plaintiff-in-reconvention), Marcie Jardell, appeals from a trial court judgment in favor of the plaintiff, Virginia Burton, rejecting the defendant's claim for damages for wrongful sequestration of an automobile. We reverse in part the trial court judgment.

FACTS

By written lease, the plaintiff leased a residence to the defendant, Marcie Jardell, and another party, Denise Albritton. The one-year lease was to begin October 1, 1989, and was to expire September 30, 1990. Ms. Jardell and Ms. Albritton were to pay rent of $520 per month. They also paid the plaintiff a security deposit of $500 and paid a nonrefundable pet deposit fee of $100.

In late June or early July, Ms. Albritton moved out of the residence and left the state. Ms. Jardell could not afford to pay the entire monthly rent on the residence so she moved out of the house as well. The date Ms. Jardell vacated the premises is in dispute.

On July 12, 1990, upon returning from vacation, the plaintiff discovered that the residence had been vacated. The plaintiff contacted Ms. Jardell at her place of employment in Monroe, Louisiana on the evening of July 12, 1990. Ms. Jardell told the plaintiff that she and Ms. Albritton had indeed vacated the residence. The plaintiff claimed she also talked to the defendant on July 18 or July 20, 1990 and that the defendant said that she would pay the rent. However, no rental payment was made by Ms. Jardell for the month of July.

The plaintiff filed suit against the defendant in Monroe City Court on July 23, 1990, claiming past due rent, late charges and cleaning and repair damages. The total amount claimed by the plaintiff for these items was $949.

In connection with this suit, the plaintiff also sought to assert a lessor's lien against the defendant's automobile. The plaintiff obtained a writ of sequestration on July 25, 1990, and on July 27, 1990, the city marshal seized the defendant's 1988 Nissan Sentra automobile at the defendant's place of employment.

The defendant answered the plaintiff's petition in city court and by reconventional *612 demand claimed wrongful sequestration of her automobile. The defendant contended that under LSA-C.C. Art. 2709 the plaintiff was required to seize any property removed from the leased premises within 15 days after removal. The defendant contended that the plaintiff, in exercising her lessor's lien, seized the defendant's automobile beyond the 15 day period.

The trial court rendered judgment in favor of the plaintiff. In written reasons for judgment, the trial court found that the date the defendant moved was never clearly established, but the testimony was to the effect that a substantial part of the defendant's movable goods were removed from the property around July 6, 1990. In spite of this finding, the trial court, acknowledging that the plaintiff was required to seize the defendant's movable property within 15 days of the date of removal, counted the 15 day period from July 12, 1990, the date upon which the plaintiff discovered that the defendant had vacated the property. The court also found that the plaintiff had reason to require the writ to be issued because she knew the defendant was from Texas and might leave this state. Accordingly, finding the seizure of the defendant's vehicle to be proper, the court rejected the claims made by the defendant in her reconventional demand.

The trial court found the defendant owed $535.50 in rent and late charges. The court found that damages and cleaning fees in the amount of $413.50 were due but ruled that this amount was to be subtracted from the defendant's $500 security deposit, with the remainder of the deposit to be returned to the defendant. The trial court signed judgment in favor of the plaintiff on December 27, 1990.

The defendant appealed the trial court judgment denying her reconventional demand, contending that the trial court erred in refusing to award damages for the wrongful sequestration of her automobile.[1] The defendant also contends the trial court erred in finding that the seizure was justified by the likelihood of her flight from the court's jurisdiction.

WRONGFUL SEQUESTRATION

The defendant contends that the trial court erred in denying her claim for wrongful sequestration of her automobile. The defendant claims that, pursuant to the rights afforded a lessor in enforcing a lessor's lien, the plaintiff had only 15 days within which to seize the defendant's movable property which had been removed from the premises. The defendant claims that the seizure of her automobile occurred more than 15 days after removal and therefore was not lawful. This argument has merit.

LSA-C.C. Art. 2705 provides for a lessor's privilege on the lessee's movable property. That article provides, in pertinent part:

The lessor has, for the payment of his rent, and other obligations of the lease, a right of pledge on the movable effects of the lessee which are found on the property leased.

LSA-C.C. Art. 2709 sets forth the time period for enforcing the lessor's privilege. That article provides, in pertinent part:

A. In the exercise of this right, the lessor may seize the objects subject to his privilege before the lessee removes them from the leased premises, or within 15 days after they have been removed by the lessee without the consent of the lessor if they continue to be the property of the lessee and can be identified.

LSA-C.C.P. Art. 3571 provides grounds for obtaining a writ of sequestration:

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the *613 property from the parish during the pendency of the action.

The writ of sequestration is an extremely harsh remedy. Sears, Roebuck and Company v. Guilbault, 452 So.2d 333 (La.App. 4th Cir.1984). A writ of sequestration can only be maintained when the formalities of the law have been strictly complied with by the parties seeking the writ. Matherne v. Estate of Matherne, 341 So.2d 1254 (La.App. 1st Cir.1976), writ denied 343 So.2d 1072 (La.1977).

Because sequestration is a harsh remedy, provisions for its enforcement must be strictly construed. LSA-C.C. Art. 2709 states that the lessor has 15 days to seize property after its removal from the leased premises. After that time, the privilege is lost.

LSA-C.C.P. Art. 3506 provides the remedy for attacking a writ of sequestration. That article provides:

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or sequestration is dissolved, the action shall then proceed as if no writ had been issued.
The court may allow damages for the wrongful issuance of a writ of attachment or sequestration on a motion to dissolve or on a reconventional demand.

Under the clear terms of LSA-C.C.

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Cite This Page — Counsel Stack

Bluebook (online)
589 So. 2d 610, 1991 WL 226591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-jardell-lactapp-1991.