Dung Pham v. Carey Gix

• Court: Louisiana Court of Appeal
• Decided: February 28, 2024
• Docket: 55,414-CA
• Status: Published

Opinion

Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 55,414-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

DUNG PHAM Plaintiff-Appellee

versus

CAREY GIX Defendant-Appellant

Appealed from the Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 2023E00268

Honorable Jefferson Bryan Joyce, Judge

CAREY GIX In Proper Person, Appellant

LAW OFFICES OF KATRINA Counsel for Appellee R. JACKSON By: Katrina R. Jackson

Before STEPHENS, THOMPSON, and ROBINSON, JJ. ROBINSON, J.

Carey Gix (“Gix”), the lessee, appeals, pro se, an eviction ordered by

Monroe City Court on February 15, 2023, based on failure to pay rent to the

lessor, Dung Pham (“Pham”).

For the reasons set forth below, we AFFIRM.

FACTS AND PROCEDURAL HISTORY

Gix rented a residential property from Pham located on Shannon

Street in Monroe. The last lease entered into between the parties was a

renewal lease for the six-month period from July 2022 to January 2023.

According to Pham’s testimony, the eviction that is the subject of this appeal

is the third filed by Pham against Gix. The second eviction filed resulted in

an eviction judgment dated July 11, 2022, for which Gix subsequently filed

a suspensive appeal. During the time the July 2022 eviction was ordered,

Gix was able to receive public rental assistance and pay the past due rental

amounts, and Pham agreed to accept the past due amounts and enter into the

July 2022 lease. Gix’s 2022 appeal was abandoned.

Under the July 2022 lease, Gix made full payments for the months of

July through September, and a partial payment of one-half the rental amount

for October. No other payments had been made as of the time of the

February 2023 eviction. Pham’s attorney, Katrina R. Jackson & Associates

(“Jackson”), took over the management of the property pertaining to rental

collection in October 2022. The timeline from the record is somewhat

unclear, but Jackson’s office claims to have repeatedly attempted to contact

Gix regarding the nonpayment of rent for October 2022 through January

2023, but received no response until January 2023. It appears Gix was in contact with the attorney who handled her previous eviction matter(s) in

October 2022 regarding obtaining further public rental assistance, and in

December 2022 and January 2023 for help in contacting Jackson. However,

she did not officially retain the attorney for representation in this particular

eviction matter.

A third eviction notice was filed by Pham against Gix for nonpayment

of rent on January 24, 2023. Around that time, Gix offered to make partial

payment of the past due rent, claiming she was awaiting additional public

rental assistance. However, at that point, Pham refused to accept any partial

payments from any source and was insistent upon Gix’s eviction.

The eviction hearing was held on February 15, 2023, and included

testimony from both Pham and Gix. Gix readily admitted that she failed to

pay rent, and the amounts and periods of nonpayment were undisputed. The

court questioned Pham’s counsel regarding his unwillingness to accept past

due payments. She responded that even if Pham accepted the three months

of overdue rent payments that may be approved by public assistance, Gix

would still be one and one-half months behind. She further responded that,

even if Gix could provide the total unpaid rent at that point, from whatever

source, Pham was still unwilling to accept any payments from Gix due to her

ongoing pattern of making late payments, catching up on past due amounts,

then ultimately failing to make payments again. The court ultimately

granted the eviction, noting simply Gix’s undisputed failure to pay rent.

DISCUSSION

Gix is a pro se litigant who essentially claims that she should

somehow be exempted from penalties of her admitted nonpayment, i.e.,

2 eviction, because she was facing some financial hardships due to her car

being repossessed and having to wait on public assistance. She also attempts

to claim that the eviction is improper because Pham had repeatedly accepted

late payments in the past; therefore, her default for nonpayment under the

current lease should be waived.

Louisiana courts have consistently held that when a landlord accepts

rental rendered by his tenant after a notice or cancellation and a notice to

vacate have been given, such acceptance vitiates notice and the lease

agreement is reinstated. Landis v. Smith, 227 So. 2d 190 (La. App. 2 Cir.

1969); A & J Inc. v. Ackel Real Estate, L.L.C., 20-259 (La. App. 5 Cir.

10/16/02), 831 So. 2d 311; 501 Rue Decatur, L.L.C. v. VTM Properties,

LLC, 13-1586 (La. App. 4 Cir. 5/21/14), 141 So. 3d 861. The acceptance of

rent after notice of eviction by the landlord constituted a waiver of that

notice and a forgiveness as to any and all previously committed infractions,

and it served to reinstate the lease as of that time. Canal Realty and

Improvement Co. v. Pailet, 217 La. 376, 46 So. 2d 303 (1950); Campesi v.

Marino, 506 So. 2d 177 (La. App. 5 Cir. 1987); A & J, supra. Where a

lessor notifies a lessee that a lease is canceled due to a violation of the lease

and then continues to accept rent payments, the lessor has waived the

violation and the lease agreement is reinstated. A & J, supra; 501 Rue

Decatur, supra.

In the instant case, Gix stopped making payments under the July 2022

lease in October 2022, the last payment being made for one-half the rental

amount due for the month of October. Pham filed an eviction notice on

January 24, 2023, due to nonpayment of rent. Although Gix had offered to

3 make additional partial payments pending expected rental assistance, Pham

understandably refused to accept payment, given Gix’s history of repeated

failures to pay rent timely, if at all. Because Pham never accepted rental

payments following the filing of the eviction, he never waived the violation

of nonpayment under the July 2022 lease.

CONCLUSION

For the foregoing reasons, this Court AFFIRMS the eviction granted

by the trial court on February 15, 2023. All costs of this appeal are to be

assessed to Gix.

AFFIRMED.