Erica Scott v. Mac-Re, LLC, D/B/A Southern Apartments

• Court: Louisiana Court of Appeal
• Decided: February 8, 2017
• Docket: CA-0016-0224
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

16-224

ERICA SCOTT, ET AL.

VERSUS

MAC-RE, LLC, D/B/A SOUTHERN APARTMENTS

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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. C-201311139 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

D. KENT SAVOIE JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.

AFFIRMED. M. Terrance Hoychick Attorney at Law 141 South Sixth Street P. O. Drawer 391 Eunice, LA 70535-0391 (337) 457-9331 COUNSEL FOR PLAINTIFFS/APPELLANTS: Erica Scott, Individually and on Behalf of the Minor, Alyssa Grace Scott

David L. Morgan Stockwell, Sievert, Vicellio Clements & Shaddock, L.L.P. P.O. Box 2900 Lake Charles, LA 70602 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: MAC-RE, LLC, d/b/a Southern Apartments SAVOIE, Judge.

In this wrongful eviction suit, Plaintiff Erica Scott (Scott), individually and

on behalf of her minor daughter, Alyssa Grace Scott, appeals the ruling of the trial

court, dismissing her claims against Defendant MAC-RE, LLC d/b/a Southern

Apartments (MAC-RE). MAC-RE also appeals that part of the judgment denying

its claim for attorney’s fees and costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

From February 2009 through the summer of 2013, Scott leased an apartment

from Southern Apartments, which is owned by MAC-RE, in Iota, Louisiana. The

rental period was for one year with an option to renew at the end of the term for an

additional one year term thereafter. The lease agreement at issue was signed on

February 11, 2013, by Scott and Sherry Hebert (Hebert), the manager of Southern

Apartments. Because Scott received federal housing aid, she was required to fill

out a USDA Rural Development Tenant Certification. The certification included

questions about Scott’s income, assets, and employment. The amount of aid Scott

received was determined by her answers in the certification. In addition to the

certification, Scott also signed an Affidavit of Non-Employment wherein she

certified that she was not employed and did not anticipate a change in her

employment status over the next year. Based on this information, the amount of

Scott’s rent was calculated to be fifty-one dollars ($51) per month. Scott lived in

the apartment with her daughter, Alyssa Grace.

MAC-RE owns 113 apartment complexes in Louisiana, Mississippi, and

Texas. On May 29, 2013, Donna Thompson, General Manager of MAC-RE, sent a

company-wide memorandum to all of its managers of these complexes. The

managers were instructed to pass on the memorandum to the residents of the apartment complexes. The memorandum re-iterates that rental payment is due on

the 1st of every month. A 10-day grace period is allowed for payment of rent

without penalty. On the 11th day of the month, a late fee of ten dollars ($10) or 5%

of the gross tenant contribution is charged. The memorandum states:

This notice is to make it understood that beginning June 1 st 2013 no longer will any extensions be granted, no longer will any rent be accepted after the 12th when the lease termination is served. Anyone that has not paid rent by the 11th will receive a lease termination and eviction procedures will begin.

Sherry Hebert testified that she printed it out, went door to door, and gave a

copy to everyone who answered. If no one answered, she placed it on their door

with a note requesting the resident visit the office and sign the document. Scott

alleges that she did not receive it.

In her petition, Scott alleges that she attempted to submit her rental payment

to Hebert on June 13, 2013, but her payment was refused because it was late.

However, in her trial testimony, this date changes to June 11, 2013. Because Scott

had paid her rent late in the past, she expected it to be accepted. Scott alleges in

her petition that, at the same time payment was refused, Hebert gave her a five day

notice to vacate the property. However, in her trial testimony she states that the

notice was posted on her door on June 13, 2013. Regardless, the Notice of Lease

Termination gave her five days to voluntarily vacate the premises, which she did

not do. This notice was signed by Sherry Hebert and Peggy Thibodeaux (Hebert’s

supervisor) on June 13, 2013.

Justice of the Peace for Ward 4, Acadia Parish, Eldridge Pousson (Pousson)

signed a five day notice to vacate directed to Scott and had the constable serve her

with it. On July 11, 2013, a five day notice was posted to Scott’s door by Mike

Habetz, the constable for Ward 4, Acadia Parish at the time. He testified that he

2 made three attempts to serve her at Southern Apartments at different times of the

day, but she was never home. On the last attempt, he posted the paperwork to her

door. In her trial testimony, she admitted that she did receive this notice. She also

testified that she called Pousson who told her that she had five days to vacate the

apartment. On July 25, 2013, Pousson issued a Writ of Ejection ordering the

constable to eject Scott and her belongings from the property and place Hebert in

full possession.

Scott found a new residence at the end of July and, over the weekend of

August 2-4, 2013, moved some of her belongings from the apartment to the new

house. Scott alleges that, when she went to her apartment on Tuesday, August 6,

2013, the locks had been changed. This is disputed by Hebert. Hebert testified

that she does not know how to change the locks on a door. Southern Apartments

employed a maintenance man to carry out those duties; however, he took a leave of

absence in May 2013, because of a family emergency and had not returned by

August. Scott also alleges that the same day, August 6, Hebert told her that she

could move the remainder of her items on Tuesdays and Thursdays while Hebert

was present at the apartment complex (Hebert also manages Acadian Place

Apartments for MAC-RE; she works there on Mondays, Wednesdays and Fridays

and at Southern Apartments on Tuesdays and Thursdays). This was also disputed

by Hebert. She testified that she was sent by her supervisor to help another of

MAC-RE’s apartments August 6-8, 2013 and, therefore, she could not have spoken

to Scott on August 6.

On August 11, 2013, acting under the legal authority of the Writ of Ejection,

Hebert, her son, her grandson, and a friend, entered Scott’s apartment to clean it

out. Again there is conflicting testimony. Scott alleges that she had personal

3 property worth twenty thousand dollars ($20,000) in the apartment. Hebert states

that there was trash on the floor, rotting food on the cabinets, broken toys, a broken

chest-of-drawers, an old mattress, and dirty dishes. She testified that there was

nothing of value left in the apartment. She filled trash bags and put them in the

dumpster on site. Anything that did not fit in the dumpster was hauled to the

landfill.

Scott filed the present lawsuit on October 31, 2013, alleging that she

sustained damages due to her wrongful eviction from the property. She requested

reasonable attorney’s fees for the prosecution of her claim under the Louisiana

Unfair Trade Practice and Consumer Protection Law (LUTPA). See La.R.S. art.

51:1409. In its’ Amended Answer and Reconventional Demand, MAC-RE asserts

that Scott’s LUTPA claim is groundless and presented in bad faith and, as a result,

MAC-RE is entitled to attorney’s fees and costs. See Id. After a trial on the merits

held July 27, 2015, the trial court ruled in favor of MAC-RE on the main demand,

dismissing Scott’s claims; however, the trial court denied MAC-RE’s request for

attorney’s fees and costs. Both parties appealed.

DISCUSSION

I. Wrongful Eviction

Both parties agree that an improper eviction procedure was used by Justice

of the Peace Pousson to procure Scott’s eviction from Southern Apartments. The

question for the court to decide is whether MAC-RE is legally responsible to Scott

for her wrongful eviction after it relied on a judgment signed by the justice of the

peace. It is a legal question, and “[q]uestions of law are reviewed by the appellate

courts under the de novo standard of review.” Noel v. Noel, 15-37, p. 6 (La.App. 3

Cir. 5/27/15), 165 So.3d 401, 408, writ denied, 15-1121 (La. 9/18/15), 178 So.3d

4 147. The trial court found that, as a third party, MAC-RE was not responsible to

Scott for the wrongful eviction. We agree.

This case presents an interesting issue – in fact, we could not find any cases

that have contemplated it before. Certainly, there are wrongful eviction cases that

have been reviewed by the appellate courts. In those cases, however, the landlord

has done some act toward the eviction process prior to filing for an eviction or in

some cases, not filing for eviction at all. See Horacek v. Watson, 11-1345 (La.App.

3 Cir. 3/7/12), 86 So.3d 766; Platinum City, L.L.C. v. Boudreaux, 11-559 (La.App.

3 Cir. 11/23/11), 81 So.3d 780. This is not a case in which the landlord has

resorted to self-help. See Pelleteri v. Caspian Group, Inc., 02-2141 (La.App. 4 Cir.

7/2/03), 851 So.2d 1230. MAC-RE gave Scott notice to vacate and, thereafter,

instituted eviction proceedings through the justice of the peace. It is the justice of

the peace who utilized the incorrect eviction procedure. We must decide whether

MAC-RE is at fault.

Louisiana Code of Civil Procedure Article 2004 states, “[a] final judgment

obtained by fraud or ill practices may be annulled.” The nullity action must be

brought within one year of the discovery of the fraud or ill practice. See Id. “‘Ill

practice’ includes any improper practice or procedure which operates, even

innocently, to deprive a litigant of some legal right.” Expert Oil & Gas, L.L.C. v.

Mack Energy Co., 16-68, p. 4 (La.App. 1 Cir. 9/16/16), 203 So.3d 1080, 1084.

“The ‘legal right’ of which a litigant must be deprived in order to have a judgment

annulled includes the right to appear and assert a defense and the right to a fair and

impartial trial.” See Id.

Scott admitted that she received MAC-RE’s notice to vacate and the five day

notice to vacate signed by Pousson. She also testified that she spoke with Pousson

5 regarding the notice and that he told her she must vacate the premises. She secured

housing and, according to Hebert, had moved everything of value out of her

apartment. She clearly had constructive notice that she was being evicted from her

apartment. However, because an improper eviction procedure was utilized, she

was deprived of the right to a hearing. Scott’s proper course of action was to

institute a nullity action, which she did not do. As a result, neither the signed five-

day notice nor the July 25, 2013 Writ of Ejection was ever overturned. We find

that MAC-RE acted under the authority of the Writ of Ejection, which was signed

by the justice of the peace, placed them in possession of the premises, and was

never nullified. Therefore, it is not responsible to Scott for any damage that she

sustained as a result of the eviction.

Furthermore, we agree with MAC-RE’s alternative argument that Scott

abandoned the property. Abandonment is a jurisprudential exception to the rule

that landlords must follow the statutory eviction procedures found in La.Code

Civ.P. art. 4701-4735. Horacek, 86 So.3d 766. Louisiana Code of Civil Procedure

Article 4731 states that “[a]fter the required notice has been given, the lessor or

owner . . . may lawfully take possession of the premises without further judicial

process, upon a reasonable belief that the lessee . . . has abandoned the premises.”

“In determining whether abandonment has occurred, there must be a showing that

the lessee voluntarily relinquished the premises and intended to terminate without

vesting ownership in another.” Southpark Comm. Hosp., LLC v. Southpark

Acquisition Co., LLC, 13-59, pp. 15-16 (La.App. 3 Cir. 10/30/13), 126 So.3d 805,

816, writ denied, 13-2794 (La. 2/28/14), 134 So.3d 1175 (quoting Bill Kassel

Farms, Inc. v. Paul, 96–462, p. 5 (La.App. 3 Cir. 12/11/96), 690 So.2d 807, 809,

writ denied, 97-712 (La. 4/25/97), 692 So.2d 1095). “[T]he abandonment of

6 property by a tenant to such an extent as to vest title and control in the landlord

involves both an act of abandonment and specific intent to abandon.” Id. (quoting

Powell v. Cox, 92 So.2d 739, 742 (La.App. 2 Cir.1957).

In the present case, Hebert testified that there was nothing of value in the

apartment when she entered. Scott admitted that she secured other housing to live

in due to the eviction and began to move her things there. She further testified that

she had her utilities transferred from Southern Apartments on August 5, 2013.

Hebert testified that when she checked the meter on July 24, 2013, it had a yellow

tag on it, indicating that the electricity was shut off. Hebert further testified that,

on the same day, she entered Scott’s apartment after her knock went unanswered.

She smelled an odor and found old food on a plate on the counter. When she

opened the freezer, the food was rotten. There were roaches everywhere and there

was no water to wash her hands. She called Orkin, a pest control company, due to

the fleas and roaches. Scott testified that she did not see Hebert between June 11,

2013, and August 11, 2013. Scott alleges this was due to her work schedule.

Hebert also testified that she did not see Scott during that time. Hebert stated that,

when she cleaned out the apartment, it was her opinion that Scott was not living

there or planning to stay there due to the living conditions. It is our opinion that

there is enough evidence in the record to conclude that Scott abandoned her

apartment at Southern Apartments.

II. MAC-RE’s claim for attorney’s fees and costs

In Scott’s petition, she asserts that MAC-RE violated LUTPA and requests

reasonable attorney’s fees under La.R.S. art. 51:1409. Under this article, LUTPA

provides a right of action and damages to a party who suffers “any ascertainable

loss of money or movable property” as the result of an unfair deceptive act or

7 practice. La.R.S. art. 1409(A). The article also provides reasonable attorney’s fees

and costs to a defendant when the LUTPA claim is found to be “groundless and

brought in bad faith or for purposes of harassment.” Id. “This provision is penal

in nature and is subject to reasonably strict construction. The court has discretion

in determining whether to award attorney fees under the statute.” Double-Eight

Oil and Gas L.L.C. v. Caruthurs Producing Co., Inc., 41,451, p. 11 (La.App. 2 Cir.

11/20/06), 942 So.2d 1279, 1286.

The trial court denied MAC-RE’s claim under La.R.S. art. 51:4109(A),

finding Scott did not act in bad faith. Based on the record, we find no abuse of the

trial court’s discretion.

DECREE

The judgment of the trial court dismissing the claims of Erica Scott,

individually and on behalf of her minor daughter, Alyssa Grace Scott, is affirmed.

The judgment denying MAC-RE’s request for attorney’s fees and costs is also

affirmed. All costs associated with these proceedings are assessed to Erica Scott.

AFFIRMED.