STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-365
KAYLA TRAHAN
VERSUS
2010 BEGLIS, L.L.C., PRODUCTIVE PROPERTIES, INC.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 2010-005259 B HONORABLE CLAYTON DAVIS, DISTRICT JUDGE **********
OSWALD A. DECUIR JUDGE
**********
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
Cooks, J., dissents and assigns written reasons.
AFFIRMED. Elizabeth Traub P.O. Box 2148 Lake Charles, LA 70602-2148 (337) 439-0374 COUNSEL FOR PLAINTIFF/APPELLANT: Kayla Trahan
Gregory L. Landry Acadiana Legal Services Corporation 1020 Surrey Street Lafayette, LA 70501 (337) 237-4320 COUNSEL FOR PLAINTIFF/APPELLANT: Kayla Trahan
Lee W. Boyer Stephen D. Polito Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. P.O. Box 2900 Lake Charles, LA 70602 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: 2010 Beglis, L.L.C., Productive Properties, Inc. DECUIR, Judge.
Kayla Trahan appeals the judgment rendered against her in an eviction
proceeding brought by her landlord, Productive Properties, Inc. and 2010 Beglis,
LLC. After due consideration of the record before us, we affirm.
On September 5, 2009, Kayla Trahan signed a lease with Productive
Properties, Inc., to rent a unit at Productive’s apartment complex, Town & Country
Apartments, located in Sulphur, Louisiana. The term of the lease was set forth as
one year. Town & Country Apartments is Section 8 housing, and, as such, Trahan
was required to execute an additional lease for a term of one year with the Sulphur
Housing Authority, which was done on November 2, 2009. “Section 8” is a term
used to describe a federally funded housing program which provides vouchers for
affordable housing offered by approved landlords. The program is administered by
the United States Department of Housing and Urban Development (HUD).
The Productive lease set forth various rules and regulations which restrict
certain actions and behaviors at the complex. According to Productive, these rules
and regulations are explained to all prospective tenants when the leases are signed.
Trahan’s signature was on the rules and regulations page of her lease. The HUD
lease also contained certain terms and conditions as well as a tenancy addendum
which relates to the term of the lease and the termination of a tenant’s occupancy.
Not long after Trahan moved in to the apartment, Productive alleges, she
began committing various infractions, which among other things, included
allowing a person who was not on the lease to live with her in the apartment.
Although this was denied by Trahan, it was believed by Productive’s property
manager that this man, later identified as Trahan’s boyfriend, Beau Arabie, was
living in the apartment. Productive continued to inform Trahan that a person not
on the lease cannot live in her apartment and that a proper procedure existed for tenants to have overnight guests. In response to a complaint from Trahan
concerning whether her apartment conformed to the Section 8 program, an
inspector for the Sulphur Housing Authority inspected Trahan’s apartment on
August 3, 2010. The property manager testified that the inspector found Trahan’s
apartment met the Section 8 requirements and confirmed that Trahan’s boyfriend
was living with her in the apartment. Arabie testified that he regularly spent as
many as three nights at a time in Trahan’s apartment. Trahan did not testify.
Productive also alleged Trahan committed various other lease infractions,
including parking additional cars not listed on the lease, bothering other tenants,
and making repeated unfounded requests for repairs. During the term of Trahan’s
lease, Productive determined that it would not renew Trahan’s lease after the initial
term. She was sent several notices informing her that the lease would not be
renewed. As the end of the lease approached, Trahan was sent two notices (the
first on October 11, 2010 by Productive’s property manager and the second on
October 22, 2010 by Productive’s legal counsel) informing her the lease was not
being renewed and that she had thirty days to vacate the premises. Trahan argued
these notices did not comply with the applicable state and federal requirements.
On October 12, 2010, Trahan filed suit against Productive requesting
declaratory judgment, specific performance, monetary damages and injunctive
relief. At the time of the filing, the trial court granted a temporary restraining
order, which was filed in conjunction with Trahan’s petition, preventing Trahan
from being evicted. At a subsequent hearing for preliminary injunction, the trial
court refused to extend the injunction preventing Productive from evicting Trahan.
The injunction was denied and the temporary restraining order was dissolved.
Thirty days after the October notices to vacate were received by Trahan,
Productive filed a Rule to Evict in city court. One day before the hearing on the
2 Rule to Evict, Trahan filed an Exception of Lis Pendens. At the hearing,
Productive was granted an extension to explore a defense to the lis pendens
exception. Rather than contesting the lis pendens exception, Productive moved to
dismiss the suit in city court and, on December 15, 2010, filed a Rule to Evict in
the suit which had been instituted by Trahan in the district court.
During this time period, Trahan gave Productive three rental payments dated
October 5, November 2, and December 8, each in the amount of $13.00. The
October payment was first returned to Trahan, then later accepted and negotiated
by Productive, as it paid the October rent during which Trahan’s tenancy
continued. The November and December payments were neither deposited nor
negotiated by Productive, but were ultimately given to Productive’s counsel to
hold during the ongoing proceedings.
On December 23, 2010, the Rule to Evict came before the trial court. Before
the rule was heard, Trahan presented several exceptions and motions including an
exception of improper cumulation, an exception of no valid notice to vacate, an
exception of vagueness, and a motion to dismiss. All the exceptions were denied
by the trial court. After consideration of all the evidence, the trial court granted
Productive’s Rule to Evict and assessed court costs against Trahan. Trahan was
ordered to vacate the apartment within twenty-four (24) hours. Trahan did not
vacate, and instead filed the present appeal, asserting several assignments of error:
lis pendens, improper cumulation of actions, ineffective notices to vacate and the
acceptance of rental payments as forgiveness of the lease infractions. We find no
merit to the issues raised by Trahan; therefore, we affirm the judgment rendered
against her.
3 STANDARD OF REVIEW
A court of appeal may not set aside a trial court’s findings of fact in the
absence of manifest error or unless those findings are clearly wrong. Stobart v.
State, through Dept. of Transp. and Dev., 617 So.2d 880 (1993); Rosell v. ESCO,
549 So.2d 840 (1989). Questions of law are reviewed de novo by determining
whether the trial court was legally correct or legally incorrect. Sanchez v. La.
Nursery, 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047; Domingue v. Bodin, 08-
62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.
LIS PENDENS
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-365
KAYLA TRAHAN
VERSUS
2010 BEGLIS, L.L.C., PRODUCTIVE PROPERTIES, INC.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, DOCKET NO. 2010-005259 B HONORABLE CLAYTON DAVIS, DISTRICT JUDGE **********
OSWALD A. DECUIR JUDGE
**********
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters, Judges.
Cooks, J., dissents and assigns written reasons.
AFFIRMED. Elizabeth Traub P.O. Box 2148 Lake Charles, LA 70602-2148 (337) 439-0374 COUNSEL FOR PLAINTIFF/APPELLANT: Kayla Trahan
Gregory L. Landry Acadiana Legal Services Corporation 1020 Surrey Street Lafayette, LA 70501 (337) 237-4320 COUNSEL FOR PLAINTIFF/APPELLANT: Kayla Trahan
Lee W. Boyer Stephen D. Polito Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P. P.O. Box 2900 Lake Charles, LA 70602 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: 2010 Beglis, L.L.C., Productive Properties, Inc. DECUIR, Judge.
Kayla Trahan appeals the judgment rendered against her in an eviction
proceeding brought by her landlord, Productive Properties, Inc. and 2010 Beglis,
LLC. After due consideration of the record before us, we affirm.
On September 5, 2009, Kayla Trahan signed a lease with Productive
Properties, Inc., to rent a unit at Productive’s apartment complex, Town & Country
Apartments, located in Sulphur, Louisiana. The term of the lease was set forth as
one year. Town & Country Apartments is Section 8 housing, and, as such, Trahan
was required to execute an additional lease for a term of one year with the Sulphur
Housing Authority, which was done on November 2, 2009. “Section 8” is a term
used to describe a federally funded housing program which provides vouchers for
affordable housing offered by approved landlords. The program is administered by
the United States Department of Housing and Urban Development (HUD).
The Productive lease set forth various rules and regulations which restrict
certain actions and behaviors at the complex. According to Productive, these rules
and regulations are explained to all prospective tenants when the leases are signed.
Trahan’s signature was on the rules and regulations page of her lease. The HUD
lease also contained certain terms and conditions as well as a tenancy addendum
which relates to the term of the lease and the termination of a tenant’s occupancy.
Not long after Trahan moved in to the apartment, Productive alleges, she
began committing various infractions, which among other things, included
allowing a person who was not on the lease to live with her in the apartment.
Although this was denied by Trahan, it was believed by Productive’s property
manager that this man, later identified as Trahan’s boyfriend, Beau Arabie, was
living in the apartment. Productive continued to inform Trahan that a person not
on the lease cannot live in her apartment and that a proper procedure existed for tenants to have overnight guests. In response to a complaint from Trahan
concerning whether her apartment conformed to the Section 8 program, an
inspector for the Sulphur Housing Authority inspected Trahan’s apartment on
August 3, 2010. The property manager testified that the inspector found Trahan’s
apartment met the Section 8 requirements and confirmed that Trahan’s boyfriend
was living with her in the apartment. Arabie testified that he regularly spent as
many as three nights at a time in Trahan’s apartment. Trahan did not testify.
Productive also alleged Trahan committed various other lease infractions,
including parking additional cars not listed on the lease, bothering other tenants,
and making repeated unfounded requests for repairs. During the term of Trahan’s
lease, Productive determined that it would not renew Trahan’s lease after the initial
term. She was sent several notices informing her that the lease would not be
renewed. As the end of the lease approached, Trahan was sent two notices (the
first on October 11, 2010 by Productive’s property manager and the second on
October 22, 2010 by Productive’s legal counsel) informing her the lease was not
being renewed and that she had thirty days to vacate the premises. Trahan argued
these notices did not comply with the applicable state and federal requirements.
On October 12, 2010, Trahan filed suit against Productive requesting
declaratory judgment, specific performance, monetary damages and injunctive
relief. At the time of the filing, the trial court granted a temporary restraining
order, which was filed in conjunction with Trahan’s petition, preventing Trahan
from being evicted. At a subsequent hearing for preliminary injunction, the trial
court refused to extend the injunction preventing Productive from evicting Trahan.
The injunction was denied and the temporary restraining order was dissolved.
Thirty days after the October notices to vacate were received by Trahan,
Productive filed a Rule to Evict in city court. One day before the hearing on the
2 Rule to Evict, Trahan filed an Exception of Lis Pendens. At the hearing,
Productive was granted an extension to explore a defense to the lis pendens
exception. Rather than contesting the lis pendens exception, Productive moved to
dismiss the suit in city court and, on December 15, 2010, filed a Rule to Evict in
the suit which had been instituted by Trahan in the district court.
During this time period, Trahan gave Productive three rental payments dated
October 5, November 2, and December 8, each in the amount of $13.00. The
October payment was first returned to Trahan, then later accepted and negotiated
by Productive, as it paid the October rent during which Trahan’s tenancy
continued. The November and December payments were neither deposited nor
negotiated by Productive, but were ultimately given to Productive’s counsel to
hold during the ongoing proceedings.
On December 23, 2010, the Rule to Evict came before the trial court. Before
the rule was heard, Trahan presented several exceptions and motions including an
exception of improper cumulation, an exception of no valid notice to vacate, an
exception of vagueness, and a motion to dismiss. All the exceptions were denied
by the trial court. After consideration of all the evidence, the trial court granted
Productive’s Rule to Evict and assessed court costs against Trahan. Trahan was
ordered to vacate the apartment within twenty-four (24) hours. Trahan did not
vacate, and instead filed the present appeal, asserting several assignments of error:
lis pendens, improper cumulation of actions, ineffective notices to vacate and the
acceptance of rental payments as forgiveness of the lease infractions. We find no
merit to the issues raised by Trahan; therefore, we affirm the judgment rendered
against her.
3 STANDARD OF REVIEW
A court of appeal may not set aside a trial court’s findings of fact in the
absence of manifest error or unless those findings are clearly wrong. Stobart v.
State, through Dept. of Transp. and Dev., 617 So.2d 880 (1993); Rosell v. ESCO,
549 So.2d 840 (1989). Questions of law are reviewed de novo by determining
whether the trial court was legally correct or legally incorrect. Sanchez v. La.
Nursery, 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047; Domingue v. Bodin, 08-
62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.
LIS PENDENS
Trahan first argues the trial court erred in failing to grant her lis pendens
exception regarding the pending eviction proceeding in Sulphur City Court.
Because we have been presented with a certified copy of a December 22, 2010
judgment of dismissal of the city court action, we find no merit to this contention:
Because lis pendens does not address the merits of the disputes between the parties, a reviewing court considers lis pendens in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court judgment. La. Cotton Ass’n Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin Co., Inc., 624 So.2d 461 (La.App. 2nd Cir.1993). After oral argument, Brooks, Cudd, and National filed a joint stipulation of amicable resolution of the Orleans Parish suit which had served as the basis for the exception of lis pendens. The stipulation included an order of dismissal from the trial court in Orleans Parish. Sonat contends that this court may not receive new evidence on appeal and that the dismissal was not a part of the record and thus may not be included in this court’s review. However, this argument is contrary to the very nature of a lis pendens review. A review of a grant of lis pendens requires this court to examine not only was the trial court correct when the exception was granted, but whether the exception is still correct at the time of appeal. See La. Cotton Ass’n supra.
Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 34,796 p. 2-3 (La.App.
2 Cir. 8/22/01), 796 So.2d 66, 68-69, writ denied, 01-2810 (La. 1/4/02), 805 So.2d
204.
4 IMPROPER CUMULATION
In Trahan’s second assignment of error, she argues that it is reversible error
to cumulate a summary eviction proceeding with a pending ordinary proceeding.
This argument disregards the fact that the trial court bifurcated the proceedings and
ordered separate trials of the eviction and the issues raised in Trahan’s petition,
which are still pending and remain to be decided via ordinary process at a later
date. Therefore, we find no reversible error in the trial court’s ruling.
NOTICE TO VACATE
Trahan asserts that Productive’s notices to vacate the premises were not in
compliance with state law, federal law, and the terms of the leases she signed. The
record shows Trahan was provided with several notices throughout the term of her
lease. Most of these communications simply advised Trahan that her lease would
not be renewed at the end of its term. The notices provided to her on October 12,
2010 and October 22, 2010, however, included the grounds for her eviction and a
thirty-day time period in which to vacate the leased premises. The notices also
informed Trahan of her right to present a defense at her eviction hearing should she
fail to vacate the premises timely. Moreover, the Rule to Evict, which is an “initial
pleading used under State or local law to commence an eviction,” as defined by the
HUD lease, was sent to the Sulphur Public Housing Authority on the same day it
was served on Trahan.
The trial court considered the notices sent to Trahan and the Rule to Evict in
light of the controlling legal and contractual requirements and found all notice
requirements were satisfied. We agree with this finding. The notices were
adequate, informative, and complied with the applicable laws and lease
requirements. Trahan has presented nothing that convinces us the notices were
inadequate. She was fully informed of the reasons for non-renewal, she was given
5 the appropriate time in which to vacate, and she was informed of her right to
present a defense to any subsequent eviction proceeding. Additionally, the Sulphur
Public Housing Authority was properly served with the Rule to Evict.
Louisiana’s summary eviction procedure, La.Code Civ.P. art. 4731 et seq.,
allows for the filing of a summary eviction proceeding only after the required
notice to vacate, as described in La.Code Civ.P. art. 4701, has been sent by the
owner. It also requires that notice must include the grounds upon which eviction is
sought. La.Code Civ.P. art. 4731(A).
Section 8 of the HUD-required tenancy addendum sets forth the substantive
provisions relating to the termination of tenancy, mandating that “the owner may
only terminate the tenancy in accordance with the lease and HUD requirements.”
Federal regulations require the owner to perform certain acts before attempting to
evict a tenant from federally subsidized housing. Trahan’s lease included the
following language concerning the notice requirements required under the law:
a. Notice of grounds.
(1) The Owner must give the Tenant a notice that specifies the grounds for termination of tenancy. The notice of grounds must be given at or before commencement of the eviction action.
(2) The notice of grounds may be included in, or may be combined with, any Owner eviction notice to the Tenant.
b. State or local eviction notice.
(1) Owner eviction notice means a notice to vacate, or a complaint or other initial pleading used under State or local law to commence an eviction.
(2) The owner must give the PHA a copy of any Owner eviction notice to the Tenant at the same time that the Owner gives notice to the Tenant.
Productive’s notices to Trahan meet the basic requirements which govern
this lease: setting forth the grounds for eviction, providing a thirty (30) day time
period in which to vacate the premises, and informing Trahan of her right to
6 present a defense at the eviction proceeding should she so choose. While the two
notices in question were not served upon the Sulphur Public Housing Authority at
the time notice was sent to Trahan, the Rule to Evict, which is the actual pleading
or complaint, was properly served. As quoted above, the term “owner eviction
notice” is defined as one of two things: It can be either a notice to vacate or “a
complaint or other initial pleading used under State or local law to commence an
eviction.” The two definitions are separate, as evidenced by the use of a comma,
and give the owner a choice. Here, Productive chose to give the Sulphur PHA a
copy of the Rule to Evict. We find this action to be in compliance with the terms
of the leases signed by Trahan.
RENTAL PAYMENTS
Trahan urges this court to find error in the trial court’s determination that
Productive did not accept Trahan’s November and December rent payments. She
argues that Productive, by holding on to her money orders, accepted the payments
and, consequently, this acceptance vitiated the notices to vacate and served as
forgiveness of the lease infractions.
Upon review of the record before us, we conclude the issue of Trahan’s
rental payments is not properly before us. Trahan failed to offer any evidence of
rental payments. She did not testify regarding the payment of rent, tender of the
payments, or her belief that Productive no longer sought to evict her based on
forgiveness of the lease infractions. Trahan did not offer into evidence any copies
or receipts for the payment of rent. The issue was raised in the trial court only in
the comments and arguments of counsel; no evidence exists for review.
Accordingly, we find no merit to the assignment of error.
7 DECREE
For the above reasons, we affirm the trial court judgment against Trahan
granting the Rule to Evict and assessing her with court costs. All costs of this
appeal are assessed to Trahan.
AFFIRMED.