Hood v. Ashby Partnership

446 So. 2d 1347
CourtLouisiana Court of Appeal
DecidedFebruary 28, 1984
Docket83 CA 0319
StatusPublished
Cited by6 cases

This text of 446 So. 2d 1347 (Hood v. Ashby Partnership) 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
Hood v. Ashby Partnership, 446 So. 2d 1347 (La. Ct. App. 1984).

Opinion

446 So.2d 1347 (1984)

Robin HOOD & Suzy Greene
v.
ASHBY PARTNERSHIP dba Maison Coteau Apartments.

No. 83 CA 0319.

Court of Appeal of Louisiana, First Circuit.

February 28, 1984.

*1348 Paula Cobb, Baton Rouge, for plaintiffs/appellees.

Frank H. Dickinson, III, Baton Rouge, for defendant/appellant.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

ALFORD, Judge.

Plaintiffs, Robin Hood and Suzy Greene, filed this suit against defendant, Ashby Partnership dba Maison Coteau Apartments, seeking a return of a security deposit given to secure the performance of a written lease agreement between plaintiffs and defendant. In addition to the return of the deposit, the plaintiffs also sued for damages and attorney's fees. After a trial on the merits, the lower court ruled that the plaintiffs were entitled to the return of their security deposit, and additionally, awarded them $250.00 in attorney's fees; however, the plaintiffs' demand for damages was rejected. The defendant has appealed this decision.

The transcript reveals the following facts. On May 3, 1982, plaintiffs Robin Hood and Suzy Greene entered into a written contract of lease with the defendant. The object of the agreement was an apartment located close to the Baton Rouge campus of Louisiana State University. The contract contained the following language relating to the term of the lease: "This lease is for a term commencing on the 3rd day of May 1982, and ending on the last calendar day August 3rd, 1982." It can readily be seen that there exists some ambiguity as to the precise term of the lease. Does the lease terminate on the "last calendar day" of August, 1982, or on August 3, 1982? After a thorough review of the record, we think the parties intended August 3, 1982, to be the expiration date. The plaintiffs were in hopes of finding a dormitory room at L.S.U. for the fall, 1982 semester. Thus, they needed an apartment only during the summer months and until they could secure a dormitory room. This, they surmised, would be sometime around the first of August.

In addition to the provision for a term, the lease also provided the following stipulation entitled "Automatic Renewal":

If Lessee, or Lessor, desires that this lease terminate at the expiration of its term, he must give to the other written notice at least 30 days prior to that date. Failure of either party to give this required notice will automatically renew this lease and all of the terms thereof. This provision is a continuing one and will apply at the expiration of the original term and at the expiration of each subsequent term.

The testimony reveals that sometime during the first week in August of 1982, plaintiffs tendered defendant a check representing rent for the entire month of August. Additionally, plaintiffs also testified that at the time they gave defendant written notice they would be vacating the apartment *1349 at the end of August. The rent check and notice of termination were given to Yvonne Ross, one-time manager of the defendant's apartments who moved out of state before the trial and was not available to testify.

At the end of August, the plaintiffs vacated the apartment. Immediately after moving out, the plaintiffs requested the return of their damage deposit from Mrs. Ross's husband and allegedly provided him with a forwarding address. He informed them that it usually took 30 days for a request to be processed because of bookkeeping considerations. The plaintiffs testified they left the apartment undamaged and clean.

Approximately thirty days later, the plaintiffs' security deposit had not been returned nor had the plaintiffs received an itemized list of expenses reflecting sums expended by defendant in rehabilitating plaintiffs' apartment into rentable condition. In response, the plaintiffs allegedly called Yvonne Ross who informed plaintiffs their check was not ready. Subsequently, never having received any money, the plaintiffs filed suit in City Court in Baton Rouge. At trial, the plaintiffs insisted that they provided defendant with written notice of termination, a forwarding address where defendant could mail plaintiffs' check, and that they vacated the apartment in an undamaged and clean condition.

The only witness to testify for the defendant was Earl Myers, general manager of the defendant corporation. Essentially, Myers sought to establish three points by his testimony: 1) The plaintiffs had not complied with the lease and thus were not entitled to the return of their security deposit; 2) The plaintiffs had not provided defendant with written termination of their occupancy or given defendant a forwarding address; and 3) The plaintiffs left the carpet in the apartment in such a damaged condition that the amount of money it would cost to repair the carpet would exceed the amount given as security.

As noted earlier, the lower court held in favor of the plaintiffs on the question of the return of their security deposit and attorney's fees. However, because the trial court felt that the plaintiffs had not proven that they had supplied defendant with a forwarding address (and he had some doubts as to whether written notice of termination was given), he concluded that defendant's failure to return the deposit within one month after the termination of the lease was not willful, and thus did not expose defendant to the penalty provision of La.R.S. 9:3252. The trial judge did not give reasons explaining why he though the plaintiffs were entitled to the return of their deposit, nor did he seem to pay any attention to the contract of lease signed by the plaintiffs.

The appellant urges two assignments of error on appeal. These assignments may be combined into one argument: the lower court erred when it ignored the automatic renewal provision of the lease and its effect on La.R.S. 9:3251 C.

The Lessee's Deposit Act in Louisiana is contained within four provisions of the Revised Statutes. These statutes provide as follows:

§ 3251 A. Any advance or deposit of money furnished by a tenant or lessee to a landlord or lessor to secure the performance of any part of a written or oral lease or rental agreement shall be returned to the tenant or lessee of residential or dwelling premises within one month after the lease shall terminate, except that the landlord or lessor may retain all or any portion of the advance or deposit which is reasonably necessary to remedy a default of the tenant or to remedy unreasonable wear to the premises. If any portion of an advance or deposit is retained by a landlord or lessor, he shall forward to the tenant or lessee, within one month after the date the tenancy terminates, an itemized statement accounting for the proceeds which are retained and giving the reasons therefor. The tenant shall furnish the lessor a forwarding address at the termination of the lease, to which such statements may be sent.
*1350 B. In the event of a transfer of the lessor's interest in the leased premises during the term of a lease, the transferor shall also transfer to his successor in interest the sums deposited as security for performance of the lease and the transferor shall then be relieved of further liability with respect to the security deposit.
C. Paragraph A of this Section shall not apply when the tenant abandons the premises, either without giving notice as required or prior to the termination of the lease.
§ 3252.
The willful failure to comply with R.S.

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Bluebook (online)
446 So. 2d 1347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hood-v-ashby-partnership-lactapp-1984.