Judgment rendered May 5, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,919-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
TAMEKIA CAPERS Plaintiff-Appellee
versus
NORTHPRO PROPERTIES Defendant-Appellant MANAGEMENT, LLC
Appealed from the West Monroe City Court for the Parish of Ouachita, Louisiana Trial Court No. 53363
Honorable A. James Norris, Judge
HALLACK LAW FIRM, APLC Counsel for Appellant By: Dennis W. Hallack William H. Hallack, Jr.
TAMEKIA CAPERS In Proper Person
Before GARRETT, COX, and BLEICH (Pro Tempore), JJ.
COX, J., concurs in the results with written reasons. BLEICH, J. (Pro Tempore).
The defendant, NorthPro Properties Management, LLC, appeals the
trial court’s findings that the plaintiff, Tamekia Capers, did not abandon the
premises and that she was entitled to damages in the amount of $15,000.
For the following reasons, we affirm.
FACTS
On June 16, 2020, the defendant, NorthPro Properties Management,
LLC (“NorthPro”), filed a petition to evict the plaintiff, Tamekia Capers,
from a house she leased and occupied with her six children. A hearing was
scheduled for July 8, 2020. However, on June 23, 2020–two weeks before
the date of the hearing–Gabe Livingston, the managing member of
NorthPro, hired several men to remove all of Capers’s possessions from the
house.1 Capers’s belongings, including clothing, furniture, food, dishes, pots
and pans, along with spoiled food and dog feces, were placed in a garbage
dumpster and hauled to the home of one of the defendant’s employees. The
items remained in the dumpster for approximately two weeks.
That same day, June 23, 2020, Capers filed a civil lawsuit against
NorthPro in West Monroe City Court. Capers alleged that all of her
personal property, valued at nearly $44,000, was removed from her home
and placed in a garbage dumpster and/or stolen by the men who had been
hired to move the items. Capers averred that the following items were
removed from her home, and their costs were as follows:
Bedroom set $4,599.99 Long dresser w/mirror Queen size bed w/mattresses & headboard
1 The trial court denied the eviction. However, according to Capers, she was unable to return to the house because NorthPro had already leased it to another tenant. Livingston admitted that he had leased the house to another tenant. Chest Nightstands Ottoman Living Room set $2,799.99 Leather sectional End tables Lamps Glass table 4 Element TVs $100 each (32”) TV stands (4) $50 each 2 Twin size beds w/ mattresses $500 each 2 Night stands & lamps $100 each 1 Dresser $80 2 Full size beds w/mattresses $700 each 1 Long dresser $120 1 Night stand w/ lamp $100 Washer & Dryer set $1,500 Refrigerator $500 Deep freezer $200 Clothing & shoes (For 6 girls) $20,000 Food $2,000 Microwave $50 Dishes $1,500 Clothing & shoes (Plaintiff) $4,000 Dining Room set $2,500 Table Chairs Centerpiece Curtains for each room $25 each Mini Refrigerator $75 Bed sets (4) $50 each Twin size bed sets (2) $35 each Toys & bicycles $300 Barbecue pit $40 Charcoal $20 Lighter fluid $5 Porch chairs (4) $20 each
TOTAL: $43,964.98
Capers sought the return of her items or damages in the amount of $15,000,
the jurisdictional limit for West Monroe City Court.
During the trial, Capers testified that on June 23, 2020, she was at
work when a neighbor called and informed her that some men were at her
home removing her personal property from the premises. She stated that all 2 of her belongings, including furniture, televisions, clothing, food, and
appliances, were “completely moved out into a dumpster.” Capers also
stated that the men removed everything she and her children owned, except
her refrigerator. She further stated that she believed that some of her items
were thrown into the dumpster, and some were kept by the men who had
been hired to move them. She also testified that she lived in the house with
her six daughters, ages 18, 16, 15, 12, 10, and 7, and the men removed all of
their clothing and toys.
Capers testified that she did not abandon the premises. She also stated
that she did not have any receipts for any of the items that were removed
from the house because “everything I had was in the house.” Capers further
stated that NorthPro removed all of her papers, receipts, and private
documents, including her children’s birth certificates, from the house.
Capers testified unequivocally that she did not abandon the house and
her property. She testified as follows:
I was staying at my house. I was still paying [utility] bills at my house. [T]hat was my house. That’s where everything I had was at, why wouldn’t I stay there? Only time I left there was maybe two nights and that was because [Livingston] had removed my coolant out of my cooling fan out of my air conditioner system. And that was the only two nights that we did not stay there.
During cross-examination, Capers testified that Livingston offered to
return her belongings after the eviction was denied, but she declined the
items because they had been removed from a garbage dumpster. Capers also
testified that she refused to go into the dumpster to retrieve her items. She
stated, “I don’t want nothing out of a dumpster” because maggots, spoiled
3 food, and other unsavory items could have been inside the dumpster. 2 When
questioned again about whether or not she abandoned the premises, Capers
replied:
How would I abandon my house and all of my things are there? I have six daughters. Do you honestly believe I would sit up and abandon all of this stuff just to start over again?
Capers further testified that her items were removed from the dumpster, and
returned to the house, and she was never offered a key to the house so she
could retrieve her belongings. When questioned about receipts to prove her
loss, Capers replied, “[M]y paperwork was in my house. Everything I had
was in my house[.] All my receipts.” She admitted that she did consider
attempting to obtain receipts from the stores where she had purchased her
belongings. Capers presented photographs, which depicted her property
piled into the garbage dumpster.
Gabe Livingston, the owner of the property, also testified. He
admitted that he moved Capers’s belongings out of the house on June 23,
2020, because he “saw [the house] as abandoned.” Livingston testified that
he went to the house two weeks before he moved Capers’s possessions, and
he believed that “there was nobody living there.” According to Livingston,
“the doors were open,” and the house had “multiple windows broken.” He
stated that he called Capers, and she informed him that she “was moving out
that Friday.” Livingston also asserted that the utilities were still on, and
when he went to the house on one occasion, Capers’s children were home.
He further testified that he went to the house at least three times prior to the
incident, but he had never done any repairs on the air conditioner. He also
2 The trial judge commented, “For whatever it’s worth, I don’t blame her for not going in a dumpster and jumping through and getting it. I wouldn’t do it either.” 4 stated that he had not received any maintenance requests from Capers in at
least six months prior to the incident. Additionally, Livingston stated that
Capers moved into the house in 2018, and she generally made partial
payments on her rent and had never been current on the payments.3
According to Livingston, his employees removed all of Capers’s
belongings out of the house except for her refrigerator. He stated that he did
not see a deep freezer or a washer and dryer. He further stated that he
observed dog feces “all over” the house, “rotten food” in the kitchen, and
mattresses on the floor. Livingston testified that the electricity was on, but
the refrigerator had been unplugged. He also stated that the food inside the
refrigerator was spoiled, and the house looked as if it had been abandoned
“for a while.”4 Livingston also attested that he believed “squatters” had
been entering the house, doing drugs, and using the bathroom. He stated
that he decided to remove Capers’s belongings prior to the eviction hearing
because he had “seen evidence of squatters,” and he “wanted to take control
of the property before somebody burned it down or did some other damage
to it.”
Livingston declared that Capers arrived at the house while he was
removing her belongings, and he offered to transport her belongings to any
address she provided. He testified that Capers yelled at him and said,
“Thank you . . . you’re going to pay for all my stuff.” Livingston also stated
that he owned the dumpster in which he threw Capers’s belongings, and the
3 Capers denied the allegation that she was not current on her rent. She testified that her rent receipts were among the items that Livingston and his employees removed from her home.
This particular testimony is contrary to his testimony that Capers’s children were 4
home when he had gone to the house days prior to his decision to remove her belongings from the house. 5 dumpster was “clean.” Further, he stated that after he put Capers’s
belongings in the dumpster, he moved the dumpster “to a secure location,
placed a tarp over it, and stored it.” Livingston maintained that he “would
be fine with” removing items from a dumpster and reusing them. He stated
that the dumpster was not “wet and nasty like most garbage dumpsters are.”
He also stated that he generally used the dumpster “to clean out houses and
transfer the stuff to the dump.”
With regard to Capers’s items, Livingston insisted that he and his
employees put “the big stuff” directly into the dumpster and placed the small
items “in garbage bags.” He stated that he bagged the rotten food and dog
feces “separately from” Capers’s other belongings. He also stated that most
of the furniture he saw was broken, and there were no bedroom sets in the
house. He further stated that he saw one mattress, one box spring, “a few
chest of drawers,” a table, and a sofa. Livingston testified that he rented the
house to someone else, but he had to refund the money to his new tenant
because he was forced to move Capers’s “stuff back into the house.” He
stated that he placed a tarp on the newly repaired floors to prevent Capers’s
items from “damaging the house.” He also stated that he did not see any
televisions or television stands that belonged to Capers, and there were no
beds in the house. Livingston testified that there was only one full-size
mattress and one box spring. Further, he stated that the only dishes in the
house were the ones “piled up in the sink along with the rotten food.” He
also stated that he saw some pots and pans; however, he did not “do an
inventory so [he did not] know exactly” what items were removed from the
house. Livingston stated that he “thinks” there was a dining room table. He
also testified that he saw “assorted kids toys,” but he did not “think” there 6 were any bicycles in the house. According to Livingston, the toys filled “a
garbage bag or two.” He also asserted that he recalled seeing a folding chair
on the porch.
Additionally, Livingston testified that “there were lots of bags of
clothes” that were already in bags when he arrived at the house. However,
he stated that he did not believe the “eight to ten” bags of clothing was
valued at $20,000. He also stated that he removed all of Capers’s
belongings from the dumpster and placed them back inside the house.
Livingston insisted that the items he returned to the house were “in the same
condition” they were in when they were removed. He stated that the items
were placed in the garbage dumpster on June 23, 2020, and they were placed
back in the house after the eviction hearing (July 8, 2020). Livingston
further testified that his wife attempted to call Capers to inform her that the
items had been placed back inside the house. He stated that his wife was
unable to reach Capers, so she called Capers’s mother and informed her that
“we put her stuff back, and we have a key for her.” He stated that he never
heard from Capers. Livingston also stated that neither he nor his employees
kept any of Capers’s belongings.
During cross-examination, Livingston testified that he went to the
house prior to the hearing on the eviction to see if Capers had moved out of
the house. He admitted that he entered Capers’s house “three different
times” in the two weeks prior to June 23, 2020. He stated that he did not
document the dates he entered the house because “I didn’t think it mattered.”
Livingston also admitted that he or his wife testified at the eviction hearing
that he removed only “debris” from the house. He stated that he did so
7 because “In my opinion, none of those items were serviceable or had any
worth at all.”
Marci Livingston, Gabe Livingston’s wife, testified. She stated that
she called Capers’s mother and informed her that “we have [Capers’s] things
back in the house and if she would just give us a call, we could get a key
back to her.” According to Mrs. Livingston, Capers’s mother responded,
“Okay, I’ll let her know.” Mrs. Livingston stated that she never heard from
Capers. She also testified that she was not present when Capers’s
belongings were removed from, or returned to, the house.
Charles Myers, who was employed by NorthPro, also testified at the
trial. He stated that he and “them boys” went to Capers’s house and
removed “furniture, clothes, whatever was in the house and put it in the
[dumpster].” He also stated that the dumpster was empty and dry when they
placed Capers’s belongings in it. Myers further stated that some of Capers’s
belongings were “already in bags” when they arrived, and they “put some
more in the bags.” He testified that he had gone to the house “a couple
days” before June 23, 2020, to measure a broken window. He denied
Capers’s allegation that he and the other workers kept some of her items for
themselves.
Myers stated that everything in the residence was placed in the
garbage dumpster, and he then hauled the dumpster to his house and covered
it with a tarp. Thereafter, he hauled the dumpster back to the house and put
Capers’s items back inside. Myers testified that in the meantime, the house
had been painted and the windows were repaired. He stated that most of
Capers’s items were returned to the front room of the house “and probably
another room [because the] front room wouldn’t hold all of it.” He also 8 stated that the items were placed on top of a tarp because the floors had been
painted. He maintained that he was “not sure” whether or not any
televisions were removed from the house; he recalled removing “all the
bags, furniture, couch, just a bunch of stuff was in there.” Myers also
testified that he did not recall seeing a washer, dryer, or deep freezer. He
further stated that there was “a little bit of food” or “bad” food in the
refrigerator, and a “little bit of stuff” in the kitchen cabinets. According to
Myers, Capers’s belongings were not in good condition when they were
removed from the house, and they were returned in the same condition.
On cross-examination, Myers testified that as the maintenance man,
he had been inside Capers’s house on many occasions. He stated that he
does not recall speaking to Capers on the telephone the day he removed her
belongings from the house. Myers also stated that he removed the items
because he “was just doing what [he] was told.” He further stated that he
did not remain on the scene when Capers called the West Monroe City
Marshal’s office because he “had other things to do.” Additionally, he
stated that he was not at the house “the whole time” Capers’s items were
being placed in the dumpster. Myers testified that he was unable to verify
whether the other workers removed and kept some of Capers’s items.
According to Myers, he left the house before the marshals arrived because
he needed to repair a water leak at another location.
Henry Francis testified that he was “in the business of cleaning out
rental properties after the tenants move out,” and he was hired by NorthPro
to remove Capers’s belongings from the home. Francis also testified that he
arranged for “the guys” to assist him, and he left after he showed the men
what to do. He also stated that tenants often “leave stuff behind,” and he and 9 his crew would discard “the stuff and then, we go in and clean up whatever
stuff was left behind[.]” According to Francis, it was “not unusual” to see a
lot of items left behind after a tenant moves out of a residence.
Francis further testified that the premises “looked like it was
abandoned.” He stated that he saw furniture, bags of clothing, some small
appliances, and a washer and dryer set. Francis declared that he was not
present “while the actual detail work was being done.” He also stated that
although he did not take an inventory of Capers’s items, he specifically
remembered “seeing the washer and the dryer in there” because he had to
look through the premises to “give [Livingston] a charge of what it would
cost.” Francis testified that he returned to the house after the job was
completed, and by then, “all the stuff was in the dumpster.” He stated that
he and his employees never kept items for themselves when they were hired
to move items out of residences. Francis further stated that he was “hardly
ever fully present the whole time” his employees were actively removing
items.
During cross-examination, Francis testified that he was unaware that it
was illegal to remove a person’s belongings from a house without a deputy
city marshal being present. He stated, “You know, if I had known it was not
lawful, I wouldn’t have done it.” Francis also testified that he was unaware
that the court date for the eviction proceedings had been set. He stated, “All
I knew is that I was hired to do a job, and I did what I was hired to do.”
According to Francis, he was “hired to clean out the house because it was
considered ready for another renter to come in, and it needed to be cleaned
out and renovated[.]”
10 William Bowick testified that he, JerMichael Grant, and “one other
boy” were hired by Francis to remove Capers’s belongings from the
residence. Bowick attested that the house was “destroyed,” a front window
was broken, and the living room floor was “covered in dog manure and
urine.” He also stated that piles of clothes were “scattered everywhere,” and
dresser drawers were on the floor. Bowick further testified that “clothes
[were] piled on the floor, a foot deep in places,” and mattresses were
“scattered on the floor.” He also stated that the back bedroom of the house
had “garbage bags full of mildewed clothes.” According to Bowick, he and
the other men went to the house to “remove everything in the house and put
it in the dumpster.” He also testified that he saw a refrigerator, but he did
not recall seeing a deep freezer, washing machine, or a dryer. Bowick
denied keeping any of the items that were removed from the house. He
stated that the front window was broken, and “anyone could have gone in
and out of there before we got there.” He further stated that everything in
the house was removed and placed in the dumpster. Bowick testified that it
took him and the other men all day “and a little bit [of] the next morning” to
remove all of Capers’s belongings from the house.
Additionally, Bowick stated that he had no way of knowing whether
anyone took any of the items from the dumpster. Bowick also stated that he
assisted in taking Capers’s possessions out of the dumpster and putting them
back inside the house. He testified that “it would have been difficult to
know” whether any of Capers’s belongings were missing because he was
“not really paying attention.” He was “just bagging it up and throwing it in
there.” According to Bowick, the dumpster was “full to the top when we got
11 it back.” He stated that he has no way of knowing whether the items were in
worse condition when they returned them.
During cross-examination, Bowick testified that he was not aware that
his actions constituted an illegal eviction. He stated that he worked “for a
homeowner who told me to go clean out the house,” and he was unaware
that he needed the presence of a city marshal to legally do so. When the trial
judge asked about the washer and dryer, Bowick first stated that “there was
no washer and dryer.” Thereafter, he stated, “I saw no washer and dryer.”
The trial judge then informed Bowick that Francis had testified that he saw a
washer and dryer in the residence, to which Bowick responded, “Well, I can
only tell you what I saw. I can’t tell you what he saw.” The following
colloquy then took place:
The Court: Alright. So, the rotten food was put in with the pots and pans? Is that what you are telling me?
Bowick: It was all bagged up. Your Honor, like I said, there was‒I’m not the only [one] that was working there.
The Court: I understand. And so, when you ‒
Bowick: ‒ I was busy at the same time.
The Court: Look, I just asked you a simple question. The rotten food was put with the pots and pans?
Bowick: And the dirty dishes.
The Court: Wait. Wait. Wait and the dirty dishes. Then it went into a dumpster and it was in the dumpster for a period of days. Probably almost two weeks and then you emptied it back out and put it back in the house. Is that what you’re telling me?
Bowick: Yes sir.
The Court: And you’re telling me it was in the same condition as it was when you initially took it out?
Bowick: I didn’t open any of the bags. . . . As far as I know, it was like it was when we put [it] in in there. 12 After hearing the testimony, the trial court found in favor of Capers,
and awarded damages in the amount of $15,000, the jurisdictional limit of
the West Monroe City Court.5 The trial court stated:
[During the eviction proceedings, Livingston] led me to believe that this lady had abandoned the premises. It may not have been in great shape. I don’t really know but they initially represented to this Court that they just moved some debris. And that was an outright lie. That was a misrepresentation to this Court. When I saw the picture of all these belongings in a dumpster piled so high that you could see the belongings – this was a huge dumpster. I knew that was untrue . . . it took a day and a half [to remove the items from the house]. *** This abandoned premises had everything in it that lady basically owned. And it may not have been worth a lot or meant a lot to anybody else, but it certainly meant the world to her. *** So, I’m thinking like–if she abandoned the premises–she abandoned [it] with her kids there. All the–so much clothes, pots, pans, ‒I didn’t buy it in the eviction, and I don’t buy it now. Self-help is not allowed under the law. [Livingston] may have had an absolute basis for the eviction, but he’s got to go to Court and he’s got to let the Court so find. *** I found that [Livingston] didn’t have any credibility at the eviction and his credibility hasn’t been rehabilitated today. They tell me there’s no washer and dryer, yet I have one of the– the man in charge of moving it out saying there was a washer and dryer. Did you bag up any clothes? No. Well, yeah yeah yeah, we did. And everything was in just as good a condition, but we put the rotten food in with the pots and pans and then we put it in the dumpster and three weeks later we brought it back. Self help is not allowed under the law. It’s just not allowed. When the Governor and President of the United States issue orders saying that there are no evictions that means there are no evictions and when you filed your eviction the day after that
5 La. C. C. P. art. 4843(C) provides:
In the City Court of Bossier City, and any city court in which the population of the territorial jurisdiction is less than fifty thousand, except as otherwise specifically provided by law, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed fifteen thousand dollars.
13 moratorium was lifted and you have a hearing, you have to wait until that hearing. And you didn’t. You took everything this lady basically had in the house which, according to her testimony, was her life. She doesn’t have any documentation of anything because he took everything. He can’t benefit from the fact that she can’t document her lost possessions when he took everything that would evidence those possessions. ***
The defendant appeals.
DISCUSSION
NorthPro contends the trial court erred in finding that Capers did not
abandon the premises. According to NorthPro, Livingston’s belief that the
house was abandoned was reasonable because Capers had told Livingston
and others that she was moving out of the house. NorthPro also maintains
that when Livingston arrived at the house, he noticed that the door was
“wide open,” some of the windows were broken, and there was evidence that
“squatters” were using drugs in the house.
Generally, a lessor may evict a lessee and deliver a notice to vacate
the premises. However, it is well-established that a lessor has no right to
take possession or in any way disturb the possession of the lessee without
first resorting to judicial process. Platinum City, L.L.C. v. Boudreaux, 11-
559 (La. App. 3 Cir. 11/23/11), 81 So. 3d 780; Weber v. McMillan, 285 So.
2d 349, 351 (La. App. 4 Cir. 1973). If the lessee or occupant does not
comply with the judgment of eviction within twenty-four hours after its
rendition, the court shall issue immediately a warrant directed to and
commanding its sheriff, constable, or marshal to deliver possession of the
premises to the lessor or owner. La. C. C. P. art. 4733 (emphasis added).
In the instant case, the following facts are undisputed: NorthPro filed
an eviction petition on June 16, 2020; a hearing was scheduled for July 8,
14 2020; NorthPro did not wait for the court to enter a judgment of eviction and
issue a warrant commanding the sheriff, constable, or marshal to deliver
possession of the premises to NorthPro; rather, on June 23, 2020, NorthPro
circumvented the entire judicial process and took possession of the leased
premises by removing all of Capers’s personal property.
NorthPro maintains that it was justified in removing Capers’s
belongings because she abandoned the premises and her possessions.
According to NorthPro, the evidence of abandonment included broken
windows, a door that was left “wide open,” an unplugged refrigerator, bags
of clothing lying around, decaying food in the kitchen, and canine feces
inside the house.
While a lessor must ordinarily utilize the appropriate procedure and
judicial process to take possession of leased property prior to termination of
the lease, a jurisprudential exception permits self-help by the lessor when the
lessee unjustifiably abandons the premises. Walters v. Greer, 31,480 (La.
App. 2 Cir. 1/22/99), 726 So. 2d 1094; Sunbelt Sec. Services, Inc. v.
Delahoussaye, 572 So. 2d 598 (La. App. 4 Cir. 1990). La. C.C.P. art.
4731(B) provides:
After the required notice [to vacate] has been given, the lessor or owner, or agent thereof, may lawfully take possession of the premises without further judicial process, upon a reasonable belief that the lessee or occupant has abandoned the premises. Indicia of abandonment include a cessation of business activity or residential occupancy, returning keys to the premises, and removal of equipment, furnishings, or other movables from the premises. (Emphasis added).
Abandonment requires voluntary relinquishment of the premises by
the lessee with the intent to terminate without vesting ownership in another.
Walters, supra; Bill Kassel Farms, Inc. v. Paul, 96-462 (La. App. 3 Cir.
15 12/11/96), 690 So. 2d 807, writ denied, 97-0712 (La. 4/25/97), 692 So. 2d
1095. The abandonment of property by a tenant to such an extent as to vest
title and control in the landlord involves both an act of abandonment and a
specific intent to abandon. Mansur v. Cox, 04-0140 (La. App. 1 Cir.
12/30/04), 898 So. 2d 446, citing Powell v. Cox, 92 So.2d 739 (La. App. 2
Cir. 1957). The determination of abandonment is a factual determination
and cannot be disturbed absent a finding that the trial court was clearly
wrong. Walters, supra; Preen v. LeRuth, 430 So. 2d 825 (La. App. 5 Cir.
1983).
Here, NorthPro did not present evidence of any of the factors set forth
in La. C. C. P. art. 4731. Specifically, there was no evidence that Capers
intended to cease to occupy the residence and/or that she surrendered her
keys to the house. Capers testified she and her children stayed in the house
at night, but due to the broken air conditioner, it was too hot to remain there
during the daytime.6 She stated that her possessions were removed while
she was at work and her children were at her sister’s house. Livingston
admitted that the utilities (lights and water) remained active in the house.
He also testified that on at least one occasion in the days leading up to the
incident, Capers’s children were in the house when he went to the residence.
Further, NorthPro’s witnesses testified that Capers had so many belongings
in the house that it took them all day, and a portion of the next day, to
remove them.
Nevertheless, NorthPro maintains that the state of the house, with
broken windows, an open door, scattered belongings and clothing, and the
6 Capers testified that Livingston intentionally disabled the air conditioner. Livingston denied that allegation. 16 presence of canine feces, was a clear indication that Capers had abandoned
the home. However, the evidence established that there was no obvious
removal of Capers’s personal property by Capers or anyone directed by her
to do so. Notwithstanding Livingston’s testimony, the other defense
witnesses testified that they removed clothing, furniture (including beds and
mattresses), appliances, food, pots, pans, dishes, and plates from the home.
Capers testified that she and her children were present in the home the night
before her property was removed, and they were only away from the home
because it was too hot to remain in the house during the daytime.
Based on our examination of this record, we find that the trial court
was not clearly wrong in concluding that Capers did not abandon the
premises. Despite NorthPro’s assertions, this record contains ample
evidence that the house was occupied when Livingston and his employees
arrived at the premises. Further, Livingston could have easily ascertained
the occupancy of the home by contacting Capers before, rather than after,
having her possessions removed from the premises. We acknowledge
Francis’ testimony that some tenants abandon residences leaving “a lot of
stuff” inside. However, based on this record, we find that it was not
reasonable for Livingston to conclude that Capers left her furnishings,
possessions, and private essential documents, while continuing to pay
utilities on an “abandoned” house. The trial court found Capers to be a
credible witness and clearly expressed its belief that the testimony provided
by Livingston, his wife, and other defense witnesses was not credible. This
assignment lacks merit.
NorthPro also contends the trial court erred in awarding monetary
damages to Capers. According to NorthPro, Capers’s belongings were 17 returned in the same condition and at the same location from which they had
been removed, and Capers refused to accept and/or retrieve her items.
Additionally, NorthPro argues that the trial court committed legal error in
measuring Capers’s damages by the replacement cost of her property, rather
than the fair market value of the items.
The Louisiana Civil Code itself does not identify causes of action for
“conversion.” However, causes of action for conversion have been inferred
from the codal articles providing that the rights of ownership, possession,
and enjoyment of movables are protected by actions for the recovery of the
movables themselves, actions for restitution of their value, and actions for
damages. Dual Drilling Co. v. Mills Equip. Investments, Inc., 98-0343 (La.
12/1/98), 721 So. 2d 853. In Louisiana, conversion is an intentional tort and
consists of an act in derogation of the plaintiff’s possessory rights. Dhaliwal
v. Dhaliwal, 49,973 (La. App. 2 Cir. 11/25/15), 184 So. 3d 773, writ denied,
16-0236 (La. 4/4/16), 190 So. 3d 1204; Aymond v. Citizens Progressive
Bank, 52,623 (La. App. 2 Cir. 6/26/19), 277 So. 3d 477, writ denied, 19-
1200 (La. 10/15/19), 280 So. 3d 602. To constitute a conversion, an
intentional dispossession and/or exercise of dominion or control over the
property of another in denial of, or inconsistent with, the owner’s rights must
be established. Aymond, supra; Dhaliwal, supra.
In the instant case, NorthPro maintains that it is not liable to Capers
for any damages because her property was returned to the house in the same
condition it was in when it was removed. NorthPro argues that it cannot be
held responsible for Capers’s decision not to retrieve her items.
In rendering its decision, the trial court noted the testimony of
Livingston’s employees with regard to the removal and return of Capers’s 18 belongings. The witnesses testified that all of Capers’s items were placed in
the dumpster, along with food, some of which they described as “rotten,”
and canine feces. The items were then covered with a tarp and stored in the
garbage dumpster, in the summer heat, for approximately two weeks. The
trial court found that the testimony–that the items were returned in the same
condition–was not credible. We find no error in the trial court’s
determination. Under the facts of this case, we find that Capers should not
have been forced to resort to digging through dog feces and spoiled food to
retrieve belongings that Livingston and his employees wrongfully removed
from her home. NorthPro is not relieved of its liability for damages due to
Capers’s decision to decline to retrieve the items. This argument lacks
merit.
NorthPro further contends the trial court erred in awarding damages to
Capers because she failed to present any evidence that she was entitled to
damages. According to NorthPro, Capers testified as to the amounts she
paid for her items; however, she did not prove the fair market value of the
property at the time it was allegedly converted. NorthPro further asserts that
Capers could have gone to the stores, from which all of her belongings were
purchased, and obtained evidence of the cost, or she could have ascertained
the value of items that were used, but similar to those she owned.
In the assessment of damages in cases of offenses, quasi offenses and
quasi contracts, much discretion must be left to the judge or jury. La. C.C.
art. 2324.1; Fenner v. Schley, 51,842 (La. App. 2 Cir. 3/14/18), 246 So. 3d
770; Martinez Mgmt., Inc. v. Caston, 39,500 (La. App. 2 Cir. 4/13/05), 900
So. 2d 301. The measure of damages for wrongful conversion is the return
of the property, or if it cannot be returned, the value of the property at the 19 time of conversion. Dual Drilling Co., supra; Fenner, supra. General
damages may also be awarded when appropriate. Quealy v. Paine, Webber,
Jackson & Curtis, Inc., 475 So. 2d 756 (La. 1985); Fenner, supra; Noel v.
Landry, 531 So. 2d 570 (La. App. 2 Cir. 1988), writ denied, 535 So. 2d 746
(La. 1989). General damages, by their very nature, are subjective and
incapable of exact computation. McDill v. Utica Mut. Ins. Co., 475 So. 2d
1085 (La. 1985); Delores M. v. S. Farm Bureau Cas. Ins. Co., 44,883 (La.
App. 2 Cir. 1/6/10), 29 So. 3d 654.
In the instant case, Capers testified that her receipts and documents
that would have proved the value of her belongings were among the items
Livingston and his employees removed from her home. She provided the
trial court with a detailed descriptive list of her items and photographs of her
belongings after they were piled into the dumpster. Capers further testified
with regard to the amount she had recently paid for her groceries and the
amounts and types of clothing and other personal items she had purchased
for herself and her six daughters. The trial court did not find credible the
defense’s insistence that Capers’s items were practically worthless. Based
on our review of this record and the unique facts of this case, we find that
the trial court did not abuse its discretion in awarding Capers damages in the
amount of $15,000.7
Further, NorthPro contends the trial judge violated Canon 3(A)(4) of
the Code of Judicial Conduct by giving Capers, a self-represented litigant, an
“unfair advantage” during these proceedings. NorthPro asserts that the trial
7 In the writer’s opinion, the defendant was fortunate that this case was presented to a court of a limited jurisdictional amount.
20 court “crossed the line from neutral arbiter into advocate” during Capers’s
cross-examination of the defense witnesses, and NorthPro takes issue with
some of the questions the trial court posed to some of the witnesses.8
8 NorthPro cites the following colloquy that occurred during Capers’s cross- examination of Livingston as an example of the court’s alleged bias:
Court: Okay. What else do you want to ask him? Ms. Capers: I just want to know why was he in my house prior to July the 8th? Court: He’s taken the position that you said you were moving out so he went to check and see if you were moving out. You moved out. So, he felt free to go do whatever he wanted to do. Ms. Capers: Okay. On July 8th when we came to Court, you said that all you removed from my house was debris. Is that true? Mr. Livingston: I didn’t say that. The Court: Well, your wife said it. Ms. Capers: Thank you. Prior to- The Court: That’s a good question. Mr. Livingston: Okay. The Court: And I’d like an answer. Mr. Livingston: What was the question? Ms. Capers: Prior- The Court: It’s real simple. In Court y’all represented that you just moved some debris. Why did you say that in a Court of law when you moved more than debris? Mr. Livingston: In my opinion, none of these items were serviceable or had any worth at all. The Court: Alright. Well, then your wife later apologized for misrepresenting that to the Court so, you’re now saying that’s a true statement? Mr. Livingston: Can you ask me—because I don’t know what to answer here? The Court: I know you don’t know what to answer because you’re not- you’re not straight up. Mr. Livingston: Do you want me to answer why she used the word debris? The Court: No, why do you agree with it now? You’re agreeing with it now. You’re saying basically I considered it all debris. That’s what you just said. That’s what you implied. And I told you-I’m letting you know that your wife later apologized and that she said that she was wrong in saying that. But now, you’re maintaining that she was right in saying that and she said she was wrong in saying that. So, I don’t know how you answer it because you got yourself in a mess.
Further, when the trial court questioned Bowick regarding the washer and dryer, Bowick first testified that there was not a washer/dryer in the house. He then stated that he did not see a washer/dryer. The court pointed out the difference between the two statements and noted that a prior witness had testified that he saw a washer/dryer.
21 NorthPro also argues that it was denied its due process right to a fair trial,
and the trial court conducted the trial “in a manner that created an
appearance of partiality to the reasonable person and also gave an unfair
advantage to [the] self-represented” plaintiff.
Whether a judge has violated the Code of Judicial Conduct is an issue
over which the Louisiana Supreme Court has exclusive jurisdiction.
Therefore, we will only address the issue of whether NorthPro was deprived
of its right to a fair trial.
The tantamount duty of a trial judge is to conduct fair and impartial
proceedings. In re Cooks, 96-1447 (La. 5/20/97), 694 So. 2d 892; Daigle v.
City of Shreveport, 46,429 (La. App. 2 Cir. 10/5/11), 78 So. 3d 753, writ
denied, 11-2472 (La. 2/3/12), 79 So. 3d 1027. It is well-settled that a trial
judge is presumed to be impartial. State v. Edwards, 420 So. 2d 663 (La.
1982); Daigle, supra.
We have reviewed this record in its entirety. The trial judge had the
opportunity to preside over both the eviction proceeding and the civil lawsuit
between these parties. The court was afforded the opportunity to listen to
the testimony and observe the demeanor of the witnesses. It is clear from
some of the questions the trial court posed to some of NorthPro’s witnesses,
and from the court’s oral reasons for judgment, that the court found their
testimony to be incredible. The witnesses provided conflicting testimony
regarding what was removed from the house, i.e., debris, a scant amount of
“broken” furniture, beds, dressers, appliances, washer/dryer set. The trial
court articulated its frustration, as well as its frank disbelief, as to the
testimony of Livingston, his wife, and their employees. In our view, the trial
22 court demonstrated exemplary restraint, and its conduct and comments did
not rise, in any way, to the level of bias or impartiality.
Additionally, there is nothing in this record which demonstrates the
trial court behaved as an advocate and/or gave Capers an unfair advantage
during the proceedings. Rather, the record shows that the court admonished
Capers on several occasions and sustained defense counsel’s objections
when Capers failed to comply with the correct procedures. Based on our
review of the record, we find no evidence to rebut the presumption that the
trial judge was impartial, or to prove that NorthPro was deprived of its right
to a fair trial. This assignment lacks merit.
CONCLUSION
For the reasons set forth herein, we affirm the trial court’s judgment
and award of damages. The costs of this appeal are assessed to the
defendant, NorthPro Properties Management, LLC.
AFFIRMED.
23 COX, J., concurs in the results with written reasons.
Although I understand the need of the business owner to take care of
their property and make sure they are able to make their mortgage payments,
pay insurance, and pay their taxes, NorthPro, in this situation, did not follow
the laws as set forth by our legislature. Ms. Capers was harmed due to the
failure of NorthPro to follow the proper procedures and is therefore entitled
to compensation. Lessors and lessees depend on each other. One provides a
home, and in return for that home, the lessee provides rent for that home and
expects peaceful possession of that home. Regardless of whether NorthPro
believed the premises were abandoned, they should have followed the rules
and secured the premises until either Ms. Capers could have been contacted
or the proper eviction proceeding took place in court. As such, I must
concur in the results of this case.