NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-319
JAMES GARY GOBERT
VERSUS
DERRICK E. HALEY, ET UX.
**********
APPEAL FROM THE LAKE CHARLES CITY COURT PARISH OF CALCASIEU, NO. 15-672 HONORABLE JOHN STEWART HOOD, CITY COURT JUDGE
JOHN E. CONERY JUDGE
Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery, Judges.
Cooks, J., dissents and assigns reasons.
SUSPENSIVE APPEAL DISMISSED, DEVOLUTIVE APPEAL MAINTAINED, JUDGMENT AFFIRMED, AND JUDGMENT RENDERED. Marshall J. Simien, Jr. Simien Law Firm Capitol One Tower, Suite 1110 One Lakeshore Drive Lake Charles, Louisiana 70629 (337) 497-0022 COUNSEL FOR PLAINTIFF/APPELLEE: James Gary Gobert
Mark M. Judson Southwest Louisiana Law Center 1011 Lake Shore Drive, Suite 402 Lake Charles, Louisiana 70601 (337) 436-3308 COUNSEL FOR DEFENDANTS/APPELLANTS: Derrick E. Haley Linda Haley CONERY, Judge.
James Gary Gobert filed a petition for eviction which was granted by the
Lake Charles City Court, evicting Derrick E. Haley and Linda Haley (Haleys) from
Mr. Gobert’s family home and awarding Mr. Gobert past due rent and attorney fees.
The trial court also denied a series of procedural motions filed by the Haleys
seeking to block the eviction proceedings. For the following reasons, we dismiss
the Haleys’ suspensive appeal, but maintain the appeal as devolutive, affirm, and
render..
FACTS AND PROCEDURAL HISTORY
Mr. Gobert is the owner of the home and property in question located at
2615 Blackwell Street, Lake Charles, Louisiana (Blackwell Street property). Mr.
Gobert listed the Blackwell Street Property for sale with Mrs. Lutricia Cobb of
Lutricia Cobb Real Estate. In October 2001, Mr. Gobert also signed a “Property
Management Agreement” which authorized Mrs. Cobb to act as Mr. Gobert’s
agent for the lease and management of the property.
Without Mrs. Cobb’s knowledge, Mrs. Haley contacted Mr. Gobert
personally and offered to purchase the Blackwell Street property. During the
conversation, Mrs. Haley explained that she and her husband had been evicted
from their prior place of residence and requested permission from Mr. Gobert to
allow them to rent the Blackwell Street property while they applied for a mortgage.
Mr. Gobert proposed that the Haleys enter into a six month lease with option
to purchase, beginning October 1, 2012. The lease with an option to purchase
provided for payment of an $800.00 monthly rental fee, with the option to purchase
the property for $131,000.00 payable in cash at the end of the six month period.
The Haleys never signed the lease with an option to purchase proposed by Mr. Gobert. Instead, on October 3, 2012, the Haleys obtained from Mrs. Cobb a
separate lease purchase agreement form that purported to sell the property to the
Haleys for $125,000.00 payable in $800.00 monthly installments with no interest.
This lease purchase agreement was only signed by the Haleys, not by Mr. Gobert
or Mrs. Cobb. The Haleys recorded this lease purchase agreement in the
conveyance records of Calcasieu Parish in March 2014 (Exhibit 2, Exception).
Likewise, the earlier lease with an option to purchase prepared by Mr. Gobert only
contained his signature when it was placed into evidence as Exhibit A in
connection with his trial testimony.
When Mr. Gobert learned of the Haleys’ recordation of their proposed
unsigned lease purchase agreement, he immediately instructed his counsel to send
written correspondence to the Haleys terminating their “lease” on the Blackwell
Street property. The March 12, 2014 correspondence entitled “Termination of
Lease of 2615 Blackwell Street” stated that no valid lease purchase agreement
existed between the parties. Mr. Gobert, as owner, had not signed the lease
purchase agreement proposed by the Haleys, and his signature was required for a
sale of immovable property. Further, in the absence of a written lease, the Haleys
were only occupying the Blackwell Street property on a verbal month-to-month
basis with a rental payment of $800.00 per month. Additionally, more than a year
had passed without the Haleys obtaining financing to purchase the Blackwell Street
property, and Mr. Gobert had decided to terminate the verbal month-to-month
lease and sell the property on the open market. Finally, according to Plaintiff’s
Exhibit B, eviction proceedings would be instituted should the Haleys refuse to
vacate the Blackwell Street property.
2 After receiving the March 12, 2014 written correspondence, the Haleys
refused to vacate the Blackwell Street property and continued to insist that they
were the “owners.” Mr. Gobert, at this point, was still willing to enter into a lease
agreement beginning April 1, 2014, but the Haleys refused. The Haleys continued
to occupy the Blackwell Street property without resolution of the legal conflict
between the parties.
On January 13, 2015, a “TEN DAY NOTICE” to vacate the Blackwell
Street property was “Posted” on the front door of the Blackwell Street property by
the Lake Charles City Marshal’s Office. On February 11, 2015, Mr. Gobert filed a
“Petition for Eviction and Possession of Premises” (Petition for Eviction), and an
order was signed by the court fixing the rule for eviction for March 2, 2015.
Attached as Exhibits A and B to the Petition for Eviction were copies of the March
12, 2014 correspondence from Mr. Gobert’s counsel and the “TEN DAY
NOTICE” of January 13, 2015, which stated the reason the Haleys were required
to vacate the property was “OWNER WANTS POSSESSION.”
The February 11, 2015 Petition for Eviction and Notice of Eviction Rule
were personally served on Derrick Haley, with domiciliary service on Linda Haley
through Derrick on February 13, 2015. On February 23, 2015, the Haleys, pro se,
filed what is styled a “Response,” referred to by the Haleys’ appeal counsel as their
answer to the Petition for Eviction. The Haleys’ response/answer filed in the Lake
Charles City Court was not verified under oath and referenced Exhibits A-F, which
the Haleys’ appeal counsel concedes are not a part of the record of these
proceedings.
On February 25, 2015, the Haleys filed three pro se motions, which were
also fixed for hearing on March 2, 2015. These included a “Motion For Change of
3 Venue” requesting that the matter be transferred to the Fourteenth Judicial District
Court, a “Motion For Continuance,” and a “Motion For Postponement.” On the
morning of March 2, 2015, before the trial court could rule on their motions, the
Haleys filed a pro se petition in the Fourteenth Judicial District Court, Parish of
Calcasieu, entitled “Reconventional Demand for Reimbursement and Damages”
(Reconventional Demand). The Reconventional Demand alleged that Mr. Gobert
had breached a contract of sale, resulting in damages amounting to $53,200.00. A
copy of the Reconventional Demand appears in the record of the Lake Charles City
Court, but was not formally filed as a pleading or submitted as an Exhibit during
the eviction proceedings.
The trial court initially addressed the Haleys’ motion for change of venue,
which claimed the damages sought in their Reconventional Demand filed in the
Fourteenth Judicial District Court exceeded the city court’s jurisdictional limit of
$25,000.00. Though the Haleys’ Reconventional Demand was not filed in city
court, the Haleys’ response/answer to the rule for eviction filed in city court
claimed “ownership” of the Blackwell Street property by virtue of a lease purchase
agreement with Mr. Gobert.
Prior to the beginning of the trial, the trial court informed the Haleys that the
requirements for the sale of immovable property under La.Civ.Code art. 2440
required a written document signed by both parties. The trial court stressed that
the Haleys’ lack of a signed written agreement with Mr. Gobert to sell the
Blackwell Street property to them could be fatal to their claim of “ownership.”
Nevertheless, the trial court allowed Mr. Haley to call Mrs. Cobb as a witness. Mr.
Haley unsuccessfully attempted to elicit from Mrs. Cobb testimony supporting a
valid lease purchase agreement with Mr. Gobert.
4 The trial court remained focused on Mr. Haleys’ lack of a “written document
signed by both parties” pursuant to the requirements of La.Civ.Code art. 2440.
The trial court patiently allowed Mr. Haley every leeway as a pro se litigant, but
based on the lack of a properly signed lease purchase agreement for the Blackwell
Street property, the trial court denied the Haleys’ three motions seeking to block
The trial court then proceeded with the rule for eviction. Mr. Gobert was
called to testify. In connection with Mr. Gobert’s testimony, the following exhibits
were admitted in evidence, Plaintiff’s Exhibit A, the “Lease With The Option To
Purchase,” and Exhibit B, the January 12, 2015 “TEN DAY NOTICE” for eviction
“Posted” by the Lake Charles City Marshal’s Office on January 13, 2015. Mr.
Gobert testified that since the posting of the “TEN DAY NOTICE,” the Haleys had
continued to occupy the Blackwell Street property.
Mr. Haley attempted to question Mr. Gobert in connection with the
documents, which were never signed jointly by the parties, but the trial court, after
once again exercising patience with Mr. Haley, terminated the questioning and
granted Mr. Gobert’s request for a “24-hour Notice of Eviction based on the owner
wants possession of a month-to-month lease.” The trial court also awarded Mr.
Gobert damages for past due rent in the amount of $1,600.00 and attorney fees in
the amount of $500.00.
Mr. Haley orally requested leave to file a suspensive appeal, which the trial
court granted. The Haleys have lodged a timely suspensive appeal of the trial
court’s judgment and have obtained representation of counsel to perfect this appeal.
ASSIGNMENTS OF ERROR
The Haleys assert the following assignments of error on appeal:
5 1. The Trial Court erred in denying Appellant’s motion to remove the matter from the Lake Charles City Court to the 14 th Judicial District Court on account of the fact that the Appellant’s reconventional demand was compulsory and exceeded the jurisdictional limits of the Lake Charles City Court, pursuant to [La.Code Civ.P. art. 484(B)].
2. The Trial Court erred in failing to rule that the notice to vacate was invalid and that it was not in compliance with [La.Code Civ.P. art.] 4703 because it was merely tacked to Appellant’s door with no further effort to locate the Appellants for service of process.
3. The Trial Court erred in finding that the agreement between the parties was a mere month to month rental agreement and not a lease purchase agreement. Specifically, the Trial Court erred in failing to find that the Appellant had relied to his detriment upon the representations of the Appellee through his agent and the Appellee should have been estopped from advancing his cause of action for eviction.
4. The Trial Court erred in granting a money judgment in favor of the Appellee for $1,600.00 for back due rent.
5. The Trial Court erred in awarding a money judgment of $500.00 for attorney fees and judicial interest from date of demand.
LAW AND DISCUSSION
Standard of Review
A judgment issued by a trial court in an eviction proceeding is subject to the
manifest error clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840,
844 (La.1989). “[A]ppellate jurisdiction of a court of appeal extends to law and
facts.” La.Const. art. 5, § 10(B). The appellate court must determine whether the
trial court committed an error of law or made a factual finding that was manifestly
erroneous or clearly wrong. Gibson v. State, 99-1730 (La. 4/11/00), 758 So.2d 782,
cert. denied, 531 U.S. 1052, 121 S.Ct. 656 (2000). The reviewing court must
review the record in its entirety to make this determination. Stobart v. State, Dep’t
of Transp. and Dev., 617 So.2d 880 (La.1993).
6 However, statutory interpretations are questions of law. Shell v. Wal-Mart
Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-
1149 (La. 6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial
court’s reasonable decision on a question or matter properly within the trial court’s
discretion, if the trial court’s decision is based on an erroneous interpretation or
application of the law, such an incorrect decision is not entitled to deference. Kem
Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).
Suspensive Appeal
The trial court granted the Haleys’ oral request for a suspensive appeal from
the judgment of eviction. The trial court ordered that the Haleys post a bond in the
amount of $2,400.00 within twenty-four hours, and that during the pendency of the
appeal, in order to “protect the interests of both parties,” the Haleys timely pay the
$800.00 monthly rent into the court’s registry. See Lakewind E. Apartments v.
Poreé, 629 So.2d 422 (La.App. 4 Cir. 1993).
Louisiana Code Civil Procedure Article 4735 governs the ability of a party
to file a suspensive appeal in a summary proceeding for eviction and states:
An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.
(Emphasis added.)
Generally, there is no requirement that an answer to a rule be filed.1 In the
case of an eviction proceeding, however, La.Code Civ.P. art. 4735 requires that an
1 Louisiana Code Civil Procedure Article 2593 provides:
7 “affirmative defense in an eviction proceeding must be pleaded under oath[,]
personally sworn to by defendant[,] in order to permit the subsequent taking of a
suspensive appeal by defendant.” Estate of Boudreaux v. Verdin, 425 So.2d 873,
873 (La.App. 1 Cir. 1982). The Haleys’ response/answer to Mr. Gobert’s petition
for eviction was not personally verified by the required oath. Therefore, the trial
court committed an error of law in granting the Haleys’ oral motion for a
suspensive appeal. Ward-Steinman v. Karst, 446 So.2d 999, 1000 (La.App. 3 Cir
1984) provides, “To suspend execution of a judgment of eviction and thus defer
return of possession to the lawful owner or lessor, the defendant must comply
literally with the provisions of law which expressly govern the taking of
suspensive appeals in such proceeding.”
Devolutive Appeal
The Haleys timely posted the required appeal bond and appealed the
judgment of the Lake Charles City Court within ten days pursuant to La.Code
Civ.P. art 5002(A), which states in pertinent part, “An appeal from a judgment
rendered by a city court or a parish court may be taken only within ten days from
the date of the judgment or from the service of notice of judgment, when such
notice is necessary.” Therefore, the attempted suspensive appeal filed by the
A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.
Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of at, the trial. An answer is not required, except as otherwise provided by law.
No responsive pleadings to an exception are permitted.
8 Haleys was timely and this court retains jurisdiction to entertain this appeal as
devolutive. See Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191
(La.1991).
Assignment of Error One - Jurisdiction
We first address the Haleys’ claim that the trial court lacked jurisdiction to
rule on the petition for eviction. In assignment of error one, the Haleys state the
trial court erred in failing to grant their “motion to remove the matter from Lake
Charles City Court to the 14th Judicial District Court” on the basis that the Haleys’
“reconventional demand was compulsory and exceeded the jurisdictional limits of
the Lake Charles City Court pursuant to LA - CCP Art. 4845(B).”2
Louisiana Code of Civil Procedure Article 1061(B) requires that, “The
defendant in the principal action . . . shall assert in a reconventional demand all
causes of action that he may have against the plaintiff that arise out of the
transaction or occurrence that is the subject matter of the principal action.”
Although the Haleys’ Reconventional Demand would have been considered
compulsory pursuant to La.Code Civ.P. art. 1061(B) and would have exceeded the
jurisdictional limits of the Lake Charles City Court, the record is clear that the
Haleys’ Reconventional Demand, which is the basis of their motion for removal,
was not filed in the Lake Charles City Court. As it was not properly filed into the
record in city court, the Reconventional Demand could not form the basis for
removal to the Fourteenth Judicial District Court or bar the city court’s
2 Louisiana Code of Civil Procedure Article 4845(B) states in pertinent part, “When a compulsory reconventional demand exceeds the jurisdiction of a parish or city court . . . the court shall transfer the entire action to a court of proper jurisdiction.” The jurisdictional limit of the Lake Charles City Court is $25,000.00, and the Haleys’ petition sought damages in the amount of $53,200.00.
9 consideration of the summary proceeding for eviction. Therefore, we find
assignment of error one to be without merit.
Assignment of Error Two - Notice
Assignment of error two states the trial court erred “in failing to rule that the
notice to vacate was invalid and that it was not in compliance with [La.Code Civ.P.
art.] 4703 because it was merely tacked to Appellant’s door with no further effort
to locate the Appellants for service of process.” The transcript of the hearing does
not contain any objection by Mr. Haley or discussion with the trial court
concerning the lack of proper notice involving the “tacking” or posting of the
January 13, 2015 “TEN DAY NOTICE TO VACATE” pursuant to La.Code Civ.P.
art. 4703. Louisiana Code of Civil Procedure Article 4703 clearly permits tacking
of the notice to the door of the premises.
Moreover, the issue of proper notice was not raised in the eviction
proceedings before the trial court, and it cannot be raised for the first time on
appeal. “Generally, a court of appeal will not consider an issue which is raised for
the first time on appeal. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La.App. 1
Cir. 5/2/08), 991 So.2d 469; Uniform Rules—Courts of Appeal, Rule 1–3.” Suire
v. Oleum Operating Co., L.C, 13-736, p. 14 (La.App. 3 Cir. 2/5/14), 135 So.3d 87,
97 (quoting Gremillion v. Gremillion, 10-05, p. 6 (La.App. 3 Cir. 7/7/10), 43
So.3d 1063, 1068, writ denied, 10-2125 (La. 12/10/10), 51 So.3d 726), writs
denied, 14-982 (La. 8/25/14), 147 So.3d 1120 and 14-987 (La. 9/12/14), 147 So.3d
707.
Nevertheless, the record is clear the Haleys responded to Mr. Gobert’s
Petition for Eviction in their February 23, 2015 response/answer and appeared at
the March 2, 2015 hearing. The Haleys were provided more than adequate notice
10 of the March 2, 2015 eviction proceedings. Thus, any objection to a lack of notice
of the eviction proceedings was waived. We therefore find that assignment of
error two is without merit.
Assignment of Error Three - Lease Purchase or Month-To-Month Rental
Assignment of error three states the trial court erred in finding “that the
agreement between the parties was a mere [month-to-month] rental agreement and
not a lease purchase agreement.” Further, the trial court erred in failing to find
“that Appellant had relied to his detriment upon the representations of the Appellee
through his agent[,] and the Appellee should have been estopped from advancing
his cause of action for eviction.”
The trial court found that the October 3, 2012 “lease purchase agreement”
prepared by the Haleys, which formed the basis of the Haleys’ claim of ownership
of the Blackwell Street property, was not signed by Mr. Gobert, the owner of the
Blackwell Street property, or by his agent, Mrs. Cobb. In his trial testimony, Mr.
Gobert vehemently denied ever agreeing to such a contractual arrangement, and
only learned of the existence of the unsigned lease purchase agreement on March 3,
2014, when it was recorded in the conveyance records of Calcasieu Parish by Mr.
Haley.
The trial court specifically cited La.Civ.Code art. 2440 as the basis for its
finding that no lease purchase agreement existed between the parties. Louisiana
Civil Code Article 2440 provides, “A sale or promise of sale of an immovable
must be made by authentic act or by act under private signature, except as provided
in Article 1839.” Louisiana Civil Code Article 1839 provides, “A transfer of
immovable property must be made by authentic act or by act under private
signature. Nevertheless, an oral transfer is valid between the parties when the
11 property has been actually delivered and the transferor recognizes the transfer
when interrogated on oath.”
In an effort to support his claims of ownership under La.Civ.Code art. 1839
and detrimental reliance on the alleged oral promise of Mrs. Cobb, Mr. Gobert’s
agent and property manager, Mr. Haley attempted unsuccessfully to elicit
testimony from Mrs. Cobb that Mr. Gobert had orally agreed to the lease purchase
agreement. Mr. Gobert also testified that he had never orally agreed to such an
agreement, nor had he ever authorized Mrs. Cobb to enter into a lease purchase
agreement with the Haleys.
The trial court steadfastly refused to deviate from the writing requirement of
La.Civ.Code art. 2440 for the valid sale of immovable property. The precepts of
La.Civ.Code art. 2440 formed the basis for the trial court’s judgment in favor of
Mr. Gobert granting his petition for eviction. Based on the record, we find the trial
court’s finding of fact that a verbal month-to-month lease existed between the
parties and its application of La.Civ.Code art. 2440 was not manifestly erroneous
and is entitled to deference. Therefore, we affirm the trial court’s ruling granting
Mr. Gobert’s petition for eviction.
Assignment of Error Four-Past Due Rent
Assignment of error four states the trial court erred in “granting a money
judgment in favor of the Appellee for $1,600.00 for back due rent.” In the Petition
for Eviction, the Haleys were ordered to show cause “why a judgment of eviction
and immediate delivery to plaintiff of possession of the leased premises should not
be granted.” The Petition for Eviction is silent on the specific issue of past due
rent, but prays for “such other and further legal and equitable relief as the Court
deems necessary and proper.” The issue of past due rent was raised in the
12 testimony of Mr. Gobert at trial when he was asked why he decided to pursue
eviction proceedings against the Haleys.
Mr. Gobert testified that his decision to begin eviction proceedings was
prompted by the Haleys’ failure to pay the rent due for December, 2014. Prior to
receiving the rent for January 2015, Mr. Gobert called to request the rent for
December. Mr. Haley stated he considered the initial deposit of $800.00
constituted the December rental payment. At the time of the hearing on March 2,
2015, Mr. Haley had not paid the rent for either January or February, the January
rental payment having been imputed to December.
Mr. Haley did not object to Mr. Gobert’s testimony at trial that rent for
January and February was past due. Mr. Haley did not deny and could not deny
that the rent was due and owing, despite not completely understanding why his
payment of the January rent had been imputed to the unpaid December rent.
Louisiana Code of Civil Procedure Article 1154 applies to an issue not
raised in the pleadings, but heard at trial. Louisiana Code of Civil Procedure
Article 1154 provides in pertinent part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues.
Therefore, although Mr. Gobert did not plead the issue of past due rent in his
Petition of Eviction in the trial court, we may consider it on appeal, as the
testimony on the issue of the Haleys’ non-payment of rent was introduced at trial
without objection. “In such an instance, we may treat the issue as if it had been
13 raised by the pleadings.” Lyons v. Bechtel Corp., 00-364, p. 9 (La.App. 3 Cir.
12/27/00), 788 So.2d 34, 41, writ denied, 01-282 (La. 3/23/01), 787 So.2d 996.
Louisiana Code of Civil Procedure Article 4731(A) requires in pertinent
part, “The rule to show cause shall state the grounds upon which the eviction is
sought.” (Emphasis added.) Thus, as required by La.Code Civ.P. art. 4731(A), Mr.
Gobert’s testimony at trial that past due rent in the amount of $1,600.00 was due
from the Haleys was considered by the trial court, without objection, and may now
be considered as having been raised in Mr. Gobert’s Petition of Eviction.
In a colloquy with the trial court during the rendition of judgment following
the close of the evidence, Mr. Haley attempted to object to the trial court’s decision
to award past due rent. At the time of Mr. Haley’s objection, the evidence was
already in the record, and the trial court had made a finding that the Haleys’ owed
past due rent in the amount of $1,600.00.
Having found that the pleadings were expanded to allow the award of past
due rent in the amount of $1,600.00, we now turn to the ability of Mr. Gobert to
recover those damages in a summary proceeding. As discussed in Devillier v.
Devillier, 439 So.2d 667, 669 (La.App. 3 Cir. 1983):
Use of summary proceedings is limited to those matters enumerated in La.C.Civ.Pro. Art. 2592. A rule to show cause is among the authorized matters for summary procedure. However, damages are not recoverable on a rule to show cause; in the absence of special provisions, they may only be recovered via ordinaria. Major v. Hall, 263 So.2d. 22, 24 (1972).
Louisiana Revised Statutes 9:3259 provides the “special provisions”
required for the recovery of damages in a rule to show cause pursuant to La.Code
Civ.P. art. 2592.
14 Louisiana Revised Statutes 9:3259 provides:
A. Whenever any lessee of any apartment building, house, motel, hotel, or other such dwelling fails to pay rent that has become due and delinquent, within twenty days after delivery of written demand therefor made in accordance with the provisions of this Section, correctly setting forth the amount of rent due and owing, the lessee shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.
B. Delivery of written demand for purposes of this Section may be accomplished by mailing the written demand by certified mail to the last known address of the lessee, by personal delivery to the lessee or by tacking the written demand on the door of the leased premises.
C. The provisions of this Section shall apply to oral leases only.
The trial court, in its colloquy with counsel for Mr. Gobert and Mr. Haley,
referenced “Title 9,” which we presume is La.R.S. 9:3259. That statute, quoted
above, allows the recovery of past due rent in an eviction proceeding and applies
“only to oral leases.” The trial court found that Mr. Gobert had entered into a
month-to-month oral lease with the Haleys. The trial court’s judgment applying
the provisions of La.R.S. 9:3259 and awarding Mr. Gobert past due rent in the
amount of $1,600.00 was properly based on the evidence adduced at trial and is
affirmed.
Attorney Fees
Assignment of error five states, “[T]he trial court erred in awarding a money
judgment of $500.00 for attorney fees and judicial interest from date of demand.”3
Mr. Gobert admits in his briefing to this court that attorney fees are not allowed as
a general rule except where authorized by statute or contract. Campbell v. Melton,
01-2578 (La. 5/14/02), 817 So.2d 69. The trial court relied on La.R.S. 9:3259 to
3 The March 4, 2015 judgment of the trial court does not contain a provision for the award of judicial interest.
15 support the award of $500.00 in attorney fees to Mr. Gobert. Louisiana Revised
Statutes 9:3259 is applicable to oral leases and allows an award for attorney fees
when the lessee fails to pay rent that is due, and a judgment has been rendered in
favor of a lessor, such as Mr. Gobert. We have affirmed that portion of the trial
court’s judgment granting past due rent in the amount of $1,600.00 and likewise
affirm the trial court’s award of attorney fees to Mr. Gobert of $500.00.
Attorney Fees on Appeal
Mr. Gobert answered the appeal and seeks additional attorney fees for work
required to respond to the Haleys’ appeal. The standard for an award of attorney
fees on appeal is: “An increase in attorney fees is awarded on appeal when the
defendant appeals, obtains no relief, and the appeal has necessitated more work on
the part of the plaintiff’s attorney, provided that the plaintiff requests such an
increase.” Dugas v. AutoZone, Inc., 12-727, p. 12 (La.App. 3 Cir. 12/5/12), 103
So.3d 1271, 1279, writ denied, 13-45 (La. 2/22/13), 108 So.3d 775 (quoting
McKelvey v. City of DeQuincy, 07-604, p. 11 (La.App. 3 Cir. 11/14/07), 970 So.2d
682, 690. Having affirmed the judgment of the trial court in its entirety, we award
Mr. Gobert an additional $2,500.00 in attorney fees for work done on appeal.
CONCLUSION
For the foregoing reasons, the suspensive appeal filed on behalf of Derrick E.
Haley and Linda Haley is dismissed, but is maintained as a devolutive appeal. The
March 3, 2015 judgment granting James Gary Gobert’s petition of eviction against
Derrick E. Haley and Linda Haley is affirmed. The damage award of $1,600.00 in
past due rent and the award of attorney fees in the amount of $500.00 is likewise
affirmed. We award an additional $2,500.00 in attorney fees for Mr. Gobert’s
16 counsel’s work done on appeal. All costs on appeal are assessed to Derrick E.
Haley and Linda Haley.
SUSPENSIVE APPEAL DISMISSED, DEVOLUTIVE APPEAL MAINTAINED, JUDGMENT AFFIRMED, AND JUDGMENT RENDERED. This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules— Courts of Appeal, Rule 2–16.3.
17 THIRD CIRCUIT COURT OF APPEAL
STATE OF LOUISIANA
DERRICK E. HALEY & LINDA HALEY
Cooks, J., dissents.
The City Court did not have subject matter jurisdiction to hear this case.
When the Haleys raised the issue of title to immovable property the City Court was
required under La.CodeCiv. P. art. 4847(A)(1) to transfer the matter to district
court. The lack of jurisdiction is not cured by the City Court’s finding that the
Haleys and Gobert had only an oral, month-to-month lease agreement, thus
rendering jurisdiction after all. The resolution of even that question is reserved to
the District Court. Louisiana Code Civil Procedure Article 4846 provides: “In
addition to the limitation by the amount in dispute as set forth above, the
jurisdiction of parish courts and city courts is limited by the nature of the
proceeding, as set forth in Article 4847:”
A. Except as otherwise provided by law, a parish or city court has no jurisdiction in any of the following cases or proceedings:
(1) A case involving title to immovable property.
This case involves title to immovable property. The Haley’s filed a
response/answer to the rule for eviction claiming “ownership” of immovable
property, namely the property at 2615 Blackwell Street, by virtue of a lease
purchase agreement. Haley claims he has made payments under a lease-purchase
agreement at $800.00 a month for fifteen months. These payments were made in
1 compliance with an agreement between the Haleys and Gobert’s agent, Ms. Cobb.
I disagree with the finding of the City Court and the majority that because there
was no written agreement signed by both parties affecting immovable property
there can be no valid lease purchase agreement as maintained by the Haleys. The
Haleys clearly presented a well pled potential claim for detrimental reliance based
on their fifteen months of payments, all accepted by Gobert and his agent and
listed as “lease purchase” payments by Gobert’s agent.
The trial court’s and the majority’s reliance on the requirement in Civil Code
Article 1839 that “[a] transfer of immovable property must be made by authentic
act or by act under private signature,” relies on decisions involving facts occurring
before the adoption of La.Civ.Code art. 1967, which became effective January 1,
1985, and misapprehends the nature of this dispute. The Louisiana Supreme Court,
in Morris v. Friedman, 94-2808, (La. 11/27/95), 663 So.2d 19, 25, relying on this
court’s decision in Ogden v. Ogden, 93-1413, p. 5 (La.App. 3 Cir. 9/21/94), 643
So. 2d 245, 248, writ denied, 94-2539 (La. 1/13/95), 648 So.2d 1339, noted in
footnote 11(emphasis added), “[t]he addition of La.C.C. art. 1967 in the Civil
Code as an additional ground for enforceability of obligations may well alter this
analysis.” This fact was also noted by this court in Morris v. People’s Bank &
Trust Co., 580 So.2d 1029, 1033 (La.App. 3 Cir.), writ denied, 588 So.2d 101
(La.1991). Louisiana Civil Code Article 1967 (emphasis added), entitled “Cause
defined, detrimental reliance” provides:
Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise.
2 Reliance on a gratuitous promise made without required formalities is not reasonable.
Indeed, in two subsequent cases this court, applying La.Civ.Code art. 1967,
found the requirement that an agreement be in writing in cases involving onerous
agreements controlled by Article 1967, no longer applied after its effective date.
See Dugas v. Guillory, 97-398 (La.App. 3 Cir. 10/7/98), 719 So.2d 719 and Cenac
v. Hart, 98-1679 (La.App. 3 Cir. 4/7/99), 741 So.2d 690. Relying on this court’s
decisions in these cases, the Louisiana Fifth Circuit Court of Appeals in Rhoads v.
Quicksilver Brokers, Ltd. 01-768, p. 9 (La.App. 5 Cir. 1/14/01), 801 So.2d 1284,
1289 (emphasis added) reversed the lower court’s grant of summary judgment
noting:
Plaintiff contends the “cause” argument is simply defendant's attempt to impose a suspensive condition on plaintiff's right to exercise her option, so that defendant seeks to orally modify the terms of the stock option agreement. Plaintiff points out that, at the time the stock option agreement was confected, Louisiana had a Statute of Frauds regarding securities that stated a contract for the sale of securities was not enforceable unless it was in writing. La.R.S. 10:8- 319 (Repealed).
In Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 26, the Louisiana Supreme Court held that a claim of equitable estoppel or detrimental reliance will not lie when the law requires the contract to be in writing: “[T]here can be no recovery on the basis of equity where, as in the instant case, a positive statutory writing requirement, not adhered to, exists.” The Morris court noted, however, that the facts in the case occurred in 1984, prior to the effective date of La.C.C. art.1967. . .
In Dugas v. Guillory, 97-398 (La.App. 3 Cir. 10/7/98), 719 So.2d 719, 726, in which former employees of a company brought action against the principal for breach of an oral promise to transfer 65% of the company's stock to the employees, the court held that under La.C.C. art.1967 and the given circumstances of the suit, the plaintiffs' reliance on the defendant's oral promise, although not executed in written form, was reasonable because the promise was onerous in nature.
3 As explained in Dugas and in Cenac v. Hart, 98-01679 (La.App. 3 Cir. 4/7/99), 741 So.2d 690, 695, the 1985 enactment of La.C.C. art.1967 was controlling over the Statute of Frauds. . . .
The Louisiana Second Circuit Court of Appeals discussed the import of
La.Civ. Code art. 1967 in Benton v. Clay, 48,245 (La. App. 2 Cir. 8/7/13), 123 So.
3d 212, 222-23 (emphasis added):
Detrimental reliance is designed to prevent injustice by barring a party from taking a position contrary to his prior acts, admissions, representations, or silence . . . . This is because detrimental reliance is not based upon the intent to be bound. Rather, the basis of detrimental reliance is the idea that a person should not harm another person by making promises that he will not keep. Thus, the focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promisee to rely upon it, and whether the promisee so relies to his detriment. Suire v. Lafayette City–Parish Consol. Gov't, supra; Allbritton v. Lincoln Health Syst., Inc., supra.
FN5. Mr. Clay contends that, because the agreement to buy the property jointly with Ms. Benton was not written, the doctrine of detrimental reliance does not apply, citing Morris v. Friedman, 94– 2808 (La.11/27/95), 663 So.2d 19. However, since the enactment of La. C.C. art.1967, Louisiana courts have found detrimental reliance to occur despite the fact that an onerous contract may lack a requisite formality such as written execution in authentic form, provided that the requisites of La. C.C. art.1967 are satisfied. See Dugas v. Guillory, 97–398 (La.App. 3d Cir.10/7/98), 719 So.2d 719.
For the reasons as stated I respectfully dissent.