Judgment rendered April 14, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,897-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CP COMMERCIAL Plaintiff-Appellee PROPERTIES, LLC
versus
LATASHA SHERMAN Defendant-Appellant
Appealed from the Shreveport City Court for the Parish of Caddo, Louisiana Trial Court No. 2020E03758
Honorable John Marion Robinson (Pro Tempore), Judge
LEGAL AID OF NORTH LOUISIANA Counsel for Appellant By: Terri Anderson-Scott
WINCHELL & JOSEPH, LLC Counsel for Appellees By: Mary Ellen Winchell CP Commercial Properties, Mackey Lane Properties, LLC, and Karen Johnson
Before COX, THOMPSON, and ROBINSON, JJ. ROBINSON, J.
Latasha Sherman appeals a judgment ordering her eviction. We
affirm the judgment.
FACTS
Mackey Lane Properties, LLC, owns a residence (“premises”) located
at 2838 Mackey Lane in Shreveport. CP Commercial Properties, LLC, is the
management company for Mackey Lane. Karen Johnson is the agent for
Mackey Lane as well as the property manager for the premises.
On April 2, 2017, Sherman signed a lease for the premises. The term
of the lease was from May 1, 2017, to midnight on April 30, 2019. The
lease provided that it would be converted to a month-to-month lease if
Sherman remained in possession of the premises after the original term
expired. Under those circumstances, the lease would be terminated by either
party providing written notice of 15 days.
Believing that the lease expired on April 30, 2019, Johnson began
eviction proceedings in August of 2019. However, the trial judge presiding
over that matter ruled on August 26 that based upon conversations between
Johnson and Sherman, there was a one-year lease in existence from May
until April. The judge also found there was no violation of the lease terms
by Sherman. The eviction was denied.
By letter dated March 16, 2020, Johnson wrote to Sherman that she
did not intend to renew the lease when it expired on April 30, 2020.
Sherman was asked to vacate the premises no later than 5:00 p.m. on April
30, 2020. The August 26 ruling was referred to in the letter. This letter was
delivered to Sherman on March 18. By letter dated April 29, 2020, Johnson wrote to Sherman that per the
March 16 letter, she did not intend to enter into another one-year lease with
Sherman. However, recognizing that Sherman might have difficulty finding
another place to live because of Louisiana’s “stay at home order” and the
general state of affairs, Johnson offered to continue the lease on a month-to-
month basis beginning on May 1.
By letter dated July 14, 2020, Johnson wrote to Sherman that she was
giving 30-day notice for the lease to end on August 31, 2020. Johnson wrote
that she was instructing the Housing Authority that no payment for
September should be remitted since the lease will end on August 31.
However, if Sherman sent a payment, it would apply to the balance that she
owed for repairs previously billed to her. The letter was delivered to
Sherman on July 25, 2020.
On August 6, 2020, Mackey Lane filed a petition to evict Sherman on
the basis that she had violated terms of the lease regarding payment for
plumbing repairs, having a pet on the premises, and failing to maintain the
premises. The notice to vacate the premises because of these alleged
violations was apparently received by Sherman on July 8 and July 27. A
hearing was held on August 17, 2020. A different trial judge than the one
who presided over the 2019 hearing denied relief because Johnson failed to
establish the alleged defaults.
On September 1, 2020, CP Commercial Properties filed a petition for
eviction against Sherman. The petition alleged that the term of the lease had
expired and Sherman had been given sufficient notice that the owner did not
want to continue the lease. The petition also alleged that notice to vacate
was given on July 23, 2020. 2 Sherman filed an answer and affirmative defenses. She denied that a
notice to vacate was given to her on July 23, 2020. She asserted that
acceptance of the August rent vitiated the notice to vacate and reinstated the
lease for another month. She further asserted that the notice was not timely
or proper, and it was not predicated upon any of the permissible reasons for
termination of a Section 8 tenant. Finally, she contended that the eviction
was in retaliation for three earlier failed attempts to evict her and for her
complaints to the City of Shreveport concerning property standards
violations.
A hearing on the petition was held on September 9, 2020. A trial
judge who had not presided over the two prior hearings rejected the
affirmative defenses and entered a judgment of eviction on that date.
Sherman has appealed. She argues that the trial court erred in evicting her
because: (i) there were inconsistencies concerning the date the notice to
vacate was allegedly given to Sherman; (ii) acceptance of rent in August
vitiated the alleged notice to vacate; (iii) the notice to vacate was not timely
or proper; (iv) Sherman was not given proper notice of termination as
required by federal law; and (v) the eviction was done in retaliation.
DISCUSSION
Date of notice
The petition for eviction listed July 23 as the date that the July 14
notice of termination was received by Sherman. However, July 23 was the
date the notice was mailed. Sherman maintains that because of this error,
the basic requirements of due process were not satisfied.
The certified mail receipt shows that Sherman signed for the notice on
July 25. Sherman contended that it was not her signature. Nevertheless, the 3 July 14 was letter was filed into evidence at the August 17 hearing by
Sherman, so she clearly came into possession of it. Sherman suffered no
prejudice because the petition listed the incorrect date that notice was
received.
Compliance with La. C.C. art. 2728(2)
Sherman contends that notice was neither timely nor proper under La.
C.C. art. 2728(2), which required notice of termination ten calendar days
before the end of the month. The court found that notice was proper.
Notice was given more than ten calendar days before the lease was to
terminate at the end of August.
Sherman was not entitled to additional notice merely because Johnson
sought termination on other grounds in a separate proceeding after she
received the July 14 notice. The July 14 notice did not serve as the basis for
the August 17 hearing, which concerned alleged violations of the lease.
The terminations were sought on entirely different grounds.
Acceptance of rental payment
Sherman asserts that the acceptance of the rent for August vitiated the
July 14 notice. When a rental payment is accepted after notice to vacate has
been given, the notice is vitiated and the tenant’s possession is maintained.
Housing Authority of Town of Lake Providence v. Allen, 486 So. 2d 1064
(La. App. 2 Cir. 1986). However, this case does not involve a notice to
vacate that is premised on the nonpayment of rent or other breach of the
lease conditions. Rather, eviction is being sought because the term of
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Judgment rendered April 14, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,897-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CP COMMERCIAL Plaintiff-Appellee PROPERTIES, LLC
versus
LATASHA SHERMAN Defendant-Appellant
Appealed from the Shreveport City Court for the Parish of Caddo, Louisiana Trial Court No. 2020E03758
Honorable John Marion Robinson (Pro Tempore), Judge
LEGAL AID OF NORTH LOUISIANA Counsel for Appellant By: Terri Anderson-Scott
WINCHELL & JOSEPH, LLC Counsel for Appellees By: Mary Ellen Winchell CP Commercial Properties, Mackey Lane Properties, LLC, and Karen Johnson
Before COX, THOMPSON, and ROBINSON, JJ. ROBINSON, J.
Latasha Sherman appeals a judgment ordering her eviction. We
affirm the judgment.
FACTS
Mackey Lane Properties, LLC, owns a residence (“premises”) located
at 2838 Mackey Lane in Shreveport. CP Commercial Properties, LLC, is the
management company for Mackey Lane. Karen Johnson is the agent for
Mackey Lane as well as the property manager for the premises.
On April 2, 2017, Sherman signed a lease for the premises. The term
of the lease was from May 1, 2017, to midnight on April 30, 2019. The
lease provided that it would be converted to a month-to-month lease if
Sherman remained in possession of the premises after the original term
expired. Under those circumstances, the lease would be terminated by either
party providing written notice of 15 days.
Believing that the lease expired on April 30, 2019, Johnson began
eviction proceedings in August of 2019. However, the trial judge presiding
over that matter ruled on August 26 that based upon conversations between
Johnson and Sherman, there was a one-year lease in existence from May
until April. The judge also found there was no violation of the lease terms
by Sherman. The eviction was denied.
By letter dated March 16, 2020, Johnson wrote to Sherman that she
did not intend to renew the lease when it expired on April 30, 2020.
Sherman was asked to vacate the premises no later than 5:00 p.m. on April
30, 2020. The August 26 ruling was referred to in the letter. This letter was
delivered to Sherman on March 18. By letter dated April 29, 2020, Johnson wrote to Sherman that per the
March 16 letter, she did not intend to enter into another one-year lease with
Sherman. However, recognizing that Sherman might have difficulty finding
another place to live because of Louisiana’s “stay at home order” and the
general state of affairs, Johnson offered to continue the lease on a month-to-
month basis beginning on May 1.
By letter dated July 14, 2020, Johnson wrote to Sherman that she was
giving 30-day notice for the lease to end on August 31, 2020. Johnson wrote
that she was instructing the Housing Authority that no payment for
September should be remitted since the lease will end on August 31.
However, if Sherman sent a payment, it would apply to the balance that she
owed for repairs previously billed to her. The letter was delivered to
Sherman on July 25, 2020.
On August 6, 2020, Mackey Lane filed a petition to evict Sherman on
the basis that she had violated terms of the lease regarding payment for
plumbing repairs, having a pet on the premises, and failing to maintain the
premises. The notice to vacate the premises because of these alleged
violations was apparently received by Sherman on July 8 and July 27. A
hearing was held on August 17, 2020. A different trial judge than the one
who presided over the 2019 hearing denied relief because Johnson failed to
establish the alleged defaults.
On September 1, 2020, CP Commercial Properties filed a petition for
eviction against Sherman. The petition alleged that the term of the lease had
expired and Sherman had been given sufficient notice that the owner did not
want to continue the lease. The petition also alleged that notice to vacate
was given on July 23, 2020. 2 Sherman filed an answer and affirmative defenses. She denied that a
notice to vacate was given to her on July 23, 2020. She asserted that
acceptance of the August rent vitiated the notice to vacate and reinstated the
lease for another month. She further asserted that the notice was not timely
or proper, and it was not predicated upon any of the permissible reasons for
termination of a Section 8 tenant. Finally, she contended that the eviction
was in retaliation for three earlier failed attempts to evict her and for her
complaints to the City of Shreveport concerning property standards
violations.
A hearing on the petition was held on September 9, 2020. A trial
judge who had not presided over the two prior hearings rejected the
affirmative defenses and entered a judgment of eviction on that date.
Sherman has appealed. She argues that the trial court erred in evicting her
because: (i) there were inconsistencies concerning the date the notice to
vacate was allegedly given to Sherman; (ii) acceptance of rent in August
vitiated the alleged notice to vacate; (iii) the notice to vacate was not timely
or proper; (iv) Sherman was not given proper notice of termination as
required by federal law; and (v) the eviction was done in retaliation.
DISCUSSION
Date of notice
The petition for eviction listed July 23 as the date that the July 14
notice of termination was received by Sherman. However, July 23 was the
date the notice was mailed. Sherman maintains that because of this error,
the basic requirements of due process were not satisfied.
The certified mail receipt shows that Sherman signed for the notice on
July 25. Sherman contended that it was not her signature. Nevertheless, the 3 July 14 was letter was filed into evidence at the August 17 hearing by
Sherman, so she clearly came into possession of it. Sherman suffered no
prejudice because the petition listed the incorrect date that notice was
received.
Compliance with La. C.C. art. 2728(2)
Sherman contends that notice was neither timely nor proper under La.
C.C. art. 2728(2), which required notice of termination ten calendar days
before the end of the month. The court found that notice was proper.
Notice was given more than ten calendar days before the lease was to
terminate at the end of August.
Sherman was not entitled to additional notice merely because Johnson
sought termination on other grounds in a separate proceeding after she
received the July 14 notice. The July 14 notice did not serve as the basis for
the August 17 hearing, which concerned alleged violations of the lease.
The terminations were sought on entirely different grounds.
Acceptance of rental payment
Sherman asserts that the acceptance of the rent for August vitiated the
July 14 notice. When a rental payment is accepted after notice to vacate has
been given, the notice is vitiated and the tenant’s possession is maintained.
Housing Authority of Town of Lake Providence v. Allen, 486 So. 2d 1064
(La. App. 2 Cir. 1986). However, this case does not involve a notice to
vacate that is premised on the nonpayment of rent or other breach of the
lease conditions. Rather, eviction is being sought because the term of
occupancy has come to an end and Johnson no longer wants Sherman as a
tenant. Moreover, the rent that was accepted was for the remaining month of
4 occupancy, August. Rent was not accepted for the month following the
month of termination.
CARES Act
Sherman maintains that she was not given proper notice of
termination as required by federal law for Section 8 tenants. However, her
argument is largely centered on the application of Section 4024(c) of the
Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.1 This
Section imposed a temporary moratorium on certain eviction filings. In
particular, it states:
(b) MORATORIUM.—During the 120-day period beginning on the date of enactment of this Act, the lessor of a covered dwelling may not— (1) make, or cause to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges; or (2) charge fees, penalties, or other charges to the tenant related to such nonpayment of rent.
(c) NOTICE.—The lessor of a covered dwelling unit— (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and (2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b).
Paragraph (c) sets forth when notice to vacate may be sent following
the moratorium stated in paragraph (b). However, that moratorium is not
even applicable in this matter as it applies to “legal action to recover
possession of the covered dwelling from the tenant for nonpayment of rent
or other fees or charges[.]” The eviction at issue is premised upon the
ending of the lease period.
1 Pub. L. No. 116-136, 134 Stat. 281, 492-4 (2020). 5 Retaliation
Sherman is operating under the belief that she is being evicted in
retaliation for her successful defenses against three prior eviction attempts,
as well as a complaint she had filed in June with the City of Shreveport
concerning Johnson’s failure to cut the grass. The trial court found that
Sherman failed to meet her burden of proving this affirmative defense. We
find no error in the trial court’s decision to reject this affirmative defense or
any of the other affirmative defenses that Sherman raised.
CONCLUSION
For the foregoing reasons, we conclude that Sherman’s arguments on
appeal are entirely without merit. Sherman, who proceeded in forma
pauperis in this appeal, is to pay appeal costs to the extent permitted by La.
C.C.P. art. 5188. The judgment is AFFIRMED.