Opinion
NO. 2023 CA 0641
12-27-2023
71070 HWY 21, LLC v. CARDIOVASCULAR SPECIALTY CARE CENTER OF COVINGTON, LLC, Cardiovascular Specialty Cath Center of Covington, LLC, and Cardiovascular Specialty Care Center ASC, LLC
Normand F. Pizza, Shannon Howard-Eldridge, Kenneth R. Whittle, Mandeville, Louisiana, Counsel for Plaintiff/Appellee 71070 Hwy 21, LLC Yvette A. D’Aunoy, Ira J. Middleberg, Brett M. Dupuy, New Orleans, Louisiana, Counsel for Defendant/Appellant Cardiovascular Specialty Care Center of Covington, LLC, Cardiovascular Specialty Cath Center of Covington, LLC, and Cardiovascular Specialty Care Center ASC, LLC
Appealed from the 22nd Judicial District Court, In and for the Parish of St. Tammany, State of Louisiana, Case No. 2023-10179, The Honorable Reginald T. Badeaux, Judge Presiding
Normand F. Pizza, Shannon Howard-Eldridge, Kenneth R. Whittle, Mandeville, Louisiana, Counsel for Plaintiff/Appellee 71070 Hwy 21, LLC
Yvette A. D’Aunoy, Ira J. Middleberg, Brett M. Dupuy, New Orleans, Louisiana, Counsel for Defendant/Appellant Cardiovascular Specialty Care Center of Covington, LLC, Cardiovascular Specialty Cath Center of Covington, LLC, and Cardiovascular Specialty Care Center ASC, LLC
BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.
LANIER, J.
2This appeal arises out of a summary eviction proceeding brought by plaintiff, 71070 Hwy 21, LLC ("Hwy 21, LLC"), against defendants, Cardiovascular Specialty Care Center of Covington, LLC ("Cardio"), Cardiovascular. Specialty Cath Center of Covington, LLC ("Cath Center"), and Cardiovascular Specialty Care Center ASC, LLC ("ASC"). The trial court granted the eviction. For the reasons that follow, we vacate and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
The facts of this case are undisputed. On March 4, 2013, Marigold Property, LLC ("Marigold") purchased the land at 71070 Highway 21 in Covington, Louisiana ("the property") for the sum of $476,992.25. Dr. Farhad Aduli, the manager and sole owner of Marigold, testified that he formed Marigold in December 2012 to purchase and develop the property. In October 2013, Marigold entered into a contract for the construction of a building on the property.
In June 2017, Cardio entered into a lease with Marigold for one-half of the building. According to Martin Fischer, the cardiology practice administrator who formed Cardio in May 2017, Cardio is a group practice that performs cardiology diagnostic procedures. Mr. Fischer indicated that Cath Center is a wholly owned subsidiary of Cardio and is treated as a "disregarded entity" for tax purposes, noting one hundred percent of Cath Center "rolls up financially" to Cardio. He further testified ASC is an ambulatory surgical center, with a separate tax ID number, licensed with the State of Louisiana that operates at the facility on Mondays. The initial lease with Marigold was a five-year lease with four, five-year extensions. Because the building was merely a shell at the time, Cardio planned to expend a substantial amount of money for the build-out of the first half 3of the building. Thus, as noted by Mr. Fischer, it was important they be able to keep the space "for at least the life of the build-out." In June 2018, Cardio leased the second half of the building and constructed a build-out with the sole purpose of becoming an ambulatory surgical center. This lease had an initial four-year term with four, five-year options to renew. On October 26, 2021, Cardio exercised its option to renew its leases with Marigold, renewing both leases for an additional five-year term effective June 1, 2022. Mr. Fischer testified Cardio always paid its rent on time and was current on its rent obligations. Moreover, Cardio never received a notice from Marigold that it had violated any lease provisions.
Mr. Fischer manages and oversees the people who manage Cardio and also has an indirect ownership interest in Cardio.
The record reflects that Cardio paid just over $1,000,000.00 for the build-out of the first half of the building.
The build-out cost for the second half of the building was approximately $1,500,000.00.
According to the record, in December 2017, Marigold signed a promissory note in favor of Dr. Aduli in the amount of $5,000,000.00. On the same date as the promissory note, Dr. Aduli executed a collateral mortgage on the property in his favor, referencing the promissory note. Dr. Aduli testified this note was for Marigold to "recognize the amount of money that [he] had contributed … to the LLC … the land and the building and any potential future costs that [he] would incur, including loans." Dr. Aduli acknowledged, however, that other than the funds used to purchase the land and construct the shell building, he was unaware of any other funds being transferred by him to Marigold after the date of this promissory note, adding there was no ledger or any other financial document that tracked what Marigold owed to him personally.
According to Marigold’s bank records, as of January 2021, the balance in its account was $641,841.90. By January 31, 2023, the balance was $1,130.76. Dr. Aduli could not be certain if the many checks that were written on the account, one of which was for $500,000.00, were distributions to him. However, Dr. Aduli did acknowledge that if his brother Farzad, who managed all of Dr. Aduli's properties and the accounts associated therewith, was disbursing $500,000.00 from an account, Farzad would talk to him about it.
4In April 2019, Dr. Aduli began performing procedures at Cardio’s facility. Thereafter, in July 2019, Dr. Aduli, through Louisiana Heart and Vascular ASC Services, LLC, joined Cardio as a member. Subsequently, on December 28, 2021, Cardio’s members voted unanimously to expel Dr. Aduli and Louisiana Heart and Vascular ASC Services, LLC from the company. Dr. Aduli testified he was upset by the decision to terminate his membership as he "would have expected [his] colleagues to be more ethically correct."
Louisiana Heart and Vascular ASC Services, LLC is wholly owned by Dr. Aduli.
On December 8, 2022, Dr. Aduli executed a Dation en Paiement transferring the property, together with all buildings and improvements thereon, from Marigold to himself in payment of the $5,000,000.00 indebtedness. Again when asked about the $5,000,000.00 debt between himself and Marigold, Dr. Aduli acknowledged he had not loaned Marigold $5,000,000.00 but that the amount represented "the valuation of the property and the anticipated future loans to the property." Dr. Aduli further noted that according to the Dation en Paiement, the value of the property at the time of the transfer from Marigold to Dr. Aduli was $2,390,000.00, an amount agreed upon by both Dr. Aduli and Marigold.
According to an appraisal done by Murphy Appraisal Services in August 2022, the property appraised for $2,390,000.00.
Four days later, on December 12, 2022, Dr. Aduli formed Hwy 21, LLC for the purpose of operating investment property. As with Marigold, Dr. Aduli was the sole member and manager of Hwy 21, LLC. On December 20, 2022, Dr. Aduli executed an Act of Capital Contribution whereby he transferred the property, together with all buildings and improvements thereon, from himself to Hwy 21, LLC. On that same date, Hwy 21, LLC mortgaged the property to Dr. Aduli for $5,000,000.00, even though Dr. Aduli testified he had only contributed the property, the building, and a "little bit" of funds to Hwy 21, LLC.
5On December 27, 2022, Hwy 21, LLC sent letters to Cardio, Cath Center, and ASC notifying them that because there were no leases in place with Hwy 21, LLC, they were to vacate the property within five days of delivery of the notices. Mr. Fischer testified he was unaware of the legal significance of recording the leases, noting that of the 40-50 leases he has with his practice groups, none of them were recorded. He was in the process of getting legal advice with regard to recordation of leases for other buildings. Concerning the leases in question, Mr. Fischer acknowledged it was not until January 9, 2023, that he filed an Act of Deposit for each lease Cardio had with Marigold, causing the leases and the options to renew to be recorded in the conveyance records of St. Tammany Parish. Mr. Fischer further indicated that the day before he received the notice of eviction, he had plans to meet with Dr. Aduli and their respective legal counsel to negotiate the terms of the leases. However, the meeting was abruptly canceled, and he received the notices of eviction the next day.
Dr. Aduli testified it was not until late December 2022 that he realized Cardio did not have a lease with Hwy 21, LLC and that he would be able to evict defendants from the property. Dr. Aduli indicated he was within his legal right to evict defendants from the property; he could evict defendants and wanted to evict them.
When the parties refused to vacate the property, Hwy 21, LLC filed a Petition for Eviction and Request for Possession on January 10, 2023, naming Cardio, Cath Center, and ASC as defendants. In response to the petition, defendants filed an answer and affirmative defenses. Among other things, defendants raised the doctrines of piercing the corporate veil and single business enterprise. Defendants argued that although Hwy 21, LLC claimed to be a third party not subject to the leases in question, "the scheme perpetrated by [Dr. Aduli] makes clear that neither [Hwy 21, LLC] nor Marigold is a ’third party’ at all, but is 6merely an alter ego of [Dr. Aduli]." Defendants further alleged that even if Hwy 21, LLC would be considered a third party, it is not entitled to rely on the public records doctrine because it conspired with Marigold and Dr. Aduli to commit fraud and deprive defendants of their rights under the leases.
The matter proceeded to hearing on March 7, 2023, at which time the trial court heard argument from the parties. Counsel for Hwy 21, LLC argued that as a third party, Hwy 21, LLC was entitled to rely on the public records doctrine. Counsel noted further that because the leases had not been recorded at the time of the change in ownership of the property, the leases had no effect on Hwy 21, LLC. Finally, counsel for Hwy 21, LLC also maintained that defendants’ affirmative defenses were inappropriate in a summary action for eviction and must be brought in a separate, ordinary proceeding.
After counsel finished presenting argument on behalf of Hwy 21, LLC, counsel for defendants made the following observation:
Your Honor … I thought I was listening to an opening statement but I’m assuming that’s the plaintiff’s presentation of their case.
This is a summary proceeding, but it’s still a trial and evidence has to be presented to the Court. And if there’s nothing else coming, I would move for a directed verdict dismissing the plaintiffs case with prejudice.
Thereafter, counsel for defendants indicated he had five witnesses he would like to present along with evidence that centered around why the eviction should be denied. He argued the public record doctrine is designed to protect innocent third parties, not a party who simply "changes the mask over their face" as Dr. Aduli did in this case. Counsel further asserted that the alter ego doctrine "should be applied to pierce through the corporate veil to determine who is really at issue here" and that the single business doctrine applies as well.
The trial court then indicated it was willing to "learn something new" and advised counsel for defendants to call his first witness. However, before counsel 7for defendants did so, he asked if Hwy 21, LLC had any witnesses. At that time, counsel for Hwy 21, LLC sought to introduce into evidence its petition for eviction and memorandum in support, along with all exhibits attached thereto. Counsel for defendants objected, arguing it was not "competent evidence" that had "been presented by any witness." Counsel for Hwy 21, LLC noted that none of the information was new as it was already filed into the record. The trial court stated it would take judicial notice of the service of the notice of eviction, overruled the objection, and allowed all of the other documents into evidence.
Counsel for Hwy 21, LLC then argued this was not a trial on the merits in an ordinary proceeding but rather a summary proceeding on the limited issue of eviction. The trial court noted the only defense it would consider was whether the hearing was premature in that defendants did not receive adequate notice of the eviction. Counsel for defendants again argued that they were not seeking any relief other than to defeat the eviction based on the affirmative defenses pled and urged that competent evidence presented by witnesses and documents was required. When counsel for defendants again asked if the trial court would allow him to present the evidence in support of the affirmative defenses to the eviction, the trial court stated, "I don’t care to hear it. I don’t need to hear it. I’m not going to waste my time listening to it." The trial court denied defendants’ request to present its evidence, granted the eviction, and allowed defendants two weeks within which to take depositions and proffer its evidence into the record. The trial court signed a judgment on March 14, 2023, granting Hwy 21, LLC’s petition for eviction and request for possession and ordering defendants to vacate and surrender the premises by April 7, 2023. 8On appeal, defendants argue the trial court violated defendants’ due process rights by not allowing them the opportunity to present defenses to the petition for eviction. Defendants assert the proffered evidence proves that Hwy 21, LLC participated in "sham transactions and perpetrated a fraud" on defendants. Moreover, defendants maintain that because Hwy 21, LLC is neither innocent nor a third party, it is prohibited from claiming the protections afforded by the public records doctrine.
On March 8, 2023, defendants filed the instant appeal. Subsequently, on March 21, 2023, defendants timely filed "Defendants' Proffer of Evidence in Opposition to Plaintiff’s Petition for Eviction and Request for Possession" along with five depositions and exhibits attached thereto into the record. Thereafter, defendants filed a motion to supplement the appellate record with the proffered evidence, which was granted by the trial court.
DISCUSSION
Eviction Law
[1, 2] Louisiana’s statutory scheme for eviction, La. Code Civ. P. art. 4701, et seq., was designed to give landowners the right to oust occupants without the burdensome expense and delay required by a petitory action. Matthews v. Horrell, 2006-1973 (La. App. 1 Cir. 11/7/07), 977 So.2d 62, 72. The process for an eviction is set forth as follows:
When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant.
This notice shall allow the occupant five days from its delivery to vacate the premises.
La. Code Civ. P. art, 4702. As defined in La. Code Civ. P. art. 4704, an occupant includes "any person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant." Thus, as this court concluded in Matthews, eviction by summary proceeding is appropriate after two elements are proven by the plaintiff, i.e., the defendant’s status as an occupant and the cessation of the purpose of the occupancy. Matthews, 977 So.2d at 72. The rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law. La. Code Civ. P. art. 2596.
[3, 4] 9"[S]uperimposed on [Louisiana’s eviction] procedures are the rules of evidence contained primarily in the Louisiana Code of Evidence. No ‘relaxed’ or simplified rules of evidence apply to eviction proceedings." Housing Authority of New Orleans v. Haynes, 2014-1349 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 104 (Tobias, J., concurring). Further, the "[a]rgument of counsel, no matter how artful, is not evidence." Housing Authority of New Orleans v. King, 2012-1372 (La. App. 4 Cir. 6/12/13), 119 So.3d 839, 842 (citing Houston v. Chargois, 98-1979 (La. App. 4 Cir. 2/24/99), 732 So.2d 71, 73).
[5–8] A summary action for eviction involves the single issue of whether the owner is entitled to possession of the premises. Citizens Bank & Trust Company v. Carr, 583 So.2d 864, 866 (La. App. 1 Cir.), writ denied, 588 So.2d 109 (La. 1991), A lessee cannot defeat the lessor’s right to summary eviction by injecting foreign issues into the case in an attempt to convert it into an ordinary proceeding. The only affirmative relief that can be granted is the right to remain in the premises. Keller Williams Realty v. Melekos, 2015-0679 (La. App. 1 Cir. 11/9/15), 2015 WL 6951406, *1. These jurisprudential rules, however, do not preclude the lessee from asserting defenses that are germane to the lessor’s right of possession. Vicknair v. Watson-Pitchford, Inc., 348 So.2d 695, 696 (La. App. 1 Cir. 1977).
Defendants maintain that their due process rights were violated when the trial court refused them an opportunity to present a defense to the petition for eviction. In support of their position, defendants cite La. Code Civ. P. art. 4732, which provides in part, "the court shall try the rale [for eviction] and hear any defense which is made." La. Code Civ. P. art. 4732(A).
[9, 10] 10As previously indicated, defendants filed an answer and affirmative defenses in response to Hwy 21, LLC’s petition in this instant matter. Louisiana Code of Civil Procedure article 1005 provides in relevant part:
The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense.
An affirmative defense raises a new matter that constitutes a defense to the action and will have the effect of defeating the plaintiffs demand on its merits, even assuming the allegations in the plaintiff’s petition are true. The purpose of requiring affirmative defenses to be expressly pled is to give the plaintiff fair and adequate notice of the nature of the defense. Succession of Ciervo v. Robinson, 2019-0140 (La. App. 1 Cir. 12/12/19), 291 So.3d 1063, 1075. A party pleading an affirmative defense has the burden of proving it by a preponderance of the evidence. State, Div. of Admin., Office of Risk Management v. Clark, 2008-0823 (La. App. 1 Cir. 12/23/08), 2008 WL 5377646, at *3.
Evidentiary Issues
[11] All relevant evidence is admissible, except as otherwise provided by law. La. Code Evid. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. Code Evid. art. 401. The trial court has great discretion to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings and to determine whether evidence is encompassed by the general issues raised in the pleadings. A court of appeal will not disturb a trial court’s determination in this regard absent an abuse of the trial court’s discretion. Elbert v. Elbert, 2008-2139 (La. App. 1 Cir. 5/13/09), 15 So.3d 236, 238, writ denied, 2009-1322 (La. 9/25/09), 18 So.3d 72.
[12] 11Additionally, error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. See La. Code Evid. art. 103(A)(2); Lonesome Development, LLC v. Town of Abita Springs, 2021-1463 (La. App. 1 Cir. 6/29/22), 343 So.3d 831, 844, writ denied, 2022-01158 (La. 11/1/22), 349 So.3d 3. The proper inquiry for determining whether a party was prejudiced by a trial court’s alleged erroneous ruling on the admission or exclusion of evidence is whether the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case. If the effect on the outcome of the case is not substantial, reversal is not warranted. La. Code Evid. art. 103(A); Landry v. City of Mandeville, 2021-1362 (La. App. 1 Cir. 4/27/22), 342 So.3d 337, 347, writ denied, 2022-00828 (La. 9/27/22), 347 So.3d 155. The party alleging prejudice by an evidentiary ruling of the trial court bears the burden of so proving. Chiasson v. Louisiana Medical Mutual Insurance Company, 2019-0618 (La. App. 1 Cir. 6/18/20), 307 So.3d 204, 209.
Based on our review of the record before us, we find two erroneous evidentiary rulings by the trial court that provide support for vacating the trial court’s judgment and remanding the matter for a full trial on the merits of the petition for eviction and all affirmative defenses thereto.
[13] Initially, contrary to the trial court’s finding, we find the affirmative defenses raised by defendants are relevant to defendants’ defense of the eviction proceeding. At the eviction hearing, the trial court heard only argument of counsel regarding the affirmative defenses, denying the request to present witness testimony. However, no matter how artful, the argument of counsel is not evidence. King, 119 So.3d at 842. Thus, we find the trial court abused its discretion in denying defendants an opportunity to present evidence pertinent to the affirmative defenses before making its decision on the petition for eviction.
[14, 15] 12Having concluded that the trial court erred in not allowing defendants to present their evidence below, this appeal requires that we determine whether to conduct a de novo review or remand for further proceedings. As a general rule, when the trial court makes evidentiary errors that are prejudicial, such that they materially affect the outcome of the trial and deprive a party of substantial rights, and if the record is otherwise complete, the appellate court will conduct its own de novo review of the record. See La. Code Evid. art. 103(A); Riverside Recycling, LLC v. BWI Companies, Inc. of Texas, 2012-0588 (La. App. 1 Cir. 12/28/12), 112 So.3d 869, 874. When a complete record has been made through a proffer, "the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal." Williams v. Williams, 2006-2491 (La. App. 1 Cir. 9/14/07), 970 So.2d 638, 640. However, the Louisiana Supreme Court has also recognized that in limited circumstances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the case to the trial court under the authority of La. Code Civ. P. art. 2164, rather than undertaking de novo review. See Wegener v. Lafayette Ins. Co., 2010-0810 (La. 3/15/11), 60 So.3d 1220, 1233; Alex v. Rayne Concrete Service, 2005-1457 (La. 1/26/07), 951 So.2d 138, 155. See also LaBauve v. Louisiana Medical Mutual Ins. Co., 2021-00763 (La. 4/13/22), 347 So.3d 724, 733-734. Whether a particular case should be remanded is a matter that is vested largely within the court’s discretion and depends upon the circumstances of the case. Alex, 951 So.2d at 155.
Article 2164 pertinently provides that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal."
[16] We find that remanding this case, rather than conducting a de novo review, is just, legal, and proper. To decide this case based solely on the proffered depositions would impermissibly deny the parties the opportunity to fully present 13their evidence for consideration. The affirmative defenses raised by defendants include allegations of fraud by Marigold, Hwy 21, LLC, and Dr. Aduli such that if said allegations are proven, Hwy 21, LLC would not be entitled to rely on the public records doctrine. See Owen v. Owen, 336 So.2d 782, 788-789 (La. 1976). Without a full trial on the issues at which time the trial court can evaluate the testimony and make the necessary credibility evaluations, we are unable to conduct a meaningful or constitutionally valid de novo review. See Fussell v. Roadrunner Towing & Recovery, Inc., 99-0194 (La. App. 1 Cir. 3/31/00), 765 So.2d 373, 377-378, writ denied, 2000-1264 (La. 6/23/00), 765 So.2d 1042. See also Jimmy’s Discount Meat Market, Inc. v. DiMarco Five, LLC, 2021-178 (La. App. 5 Cir. 5/18/22), 362 So.3d 734, 742-743 (vacating judgment of eviction, reversing judgment granting motion to quash subpoena, and remanding the matter upon finding that information sought in subpoena, at least in part, was relevant to lessee’s defense that original lessor and new lessor were allegedly part of the same business enterprise and that the public records doctrine only applied to third-party transferees in good faith and not to sales to one’s self or to a corporate entity that is not separate and distinct from the seller); Wall v. Alleman, 488 So.2d 1130, 1132 (La. App. 2 Cir. 1986) (finding that expert’s testimony in offer of proof was highly favorable to defendant and could affect the trial court’s determination of liability and therefore required remand such that trial court could make the initial credibility evaluation of the testimony and adverse parties would have the opportunity to present rebuttal evidence).
[17, 18] Next, we address the evidence submitted by Hwy 21, LLC in support of its petition for eviction. Because an eviction can proceed by expedited process, "procedural protections must be strictly adhered to prior to an eviction to protect the rights of … a tenant." Haynes, 172 So.3d at 104. As noted by Judge Tobias in his concurring opinion in Haynes:
14At a bare minimum, and generally, the petition or rule for possession of premises should show the following:
(1) The name of the owner/lessor/land-lord of the premises, and if applicable, the name of the agent representing him. Such shows that the plaintiff has a right of action.
(2) The name of the, defendant/lessee/occupant, if known.
(3) The location of the premises at issue, giving a sufficiently clear designation of the address (street; unit number, if applicable; city).
(4) The reason the eviction is sought.
(5) An allegation that the five-day notice to vacate has been given and how same was [given]. (Ideally, a copy of the five-day notice should be attached to the petition or rule.)
(6) If a written lease exists, a copy thereof and all amendments thereto should be attached to the petition or rule.
(7) Any other relevant allegation related to the matter.
(8) A prayer for relief.
At some point during the trial of the role or petition for possession, the owner/lessor/landlord or his agent shall testify in person (or by sworn deposition at which the defendant or his agent was present, but not by affidavit unless a law so authorizes), attesting to each of the facts as alleged in the petition and affirmatively state in the trial that the owner/lessor/landlord wants the return of the premises to him.
If the petition or role for possession and the evidence at the trial [conform] to the foregoing, then the plaintiff makes out a prima facie case.
Haynes, 172 So.3d at 104-105 (Tobias, J., concurring) (citations omitted).
[19, 20] A lessor must prove, by a preponderance of the evidence, the existence of a valid lease and a violation of the lease that provides sufficient grounds for an eviction. 200 Carondelet v. Bickham, 2017-0328 (La. App. 4 Cir. 10/25/17), 316 So.3d 955, 959. An appellate court must reverse a judgment of eviction if the lessor failed to prove the legal ground upon which the lessee should be evicted. Second Zion Baptist Church #1 v. Jones, 2017-0926 (La. App. 4 Cir. 4/18/18), 245 So.3d 9, 12.
15As previously noted, no witnesses testified before the trial court in in this summary eviction proceeding. Rather, in presenting its case to the trial court, Hwy 21, LLC sought to introduce its petition for eviction and memorandum in support, along with all exhibits attached thereto. The defendants objected to the introduction of the evidence arguing it was not "competent evidence" that had "been presented by any witness." The trial court took judicial notice of the notice of eviction and allowed all of the other evidence submitted by Hwy 21, LLC into evidence, overruling the defendants’ objection.
[21, 22] We note defendants do no assign error to these evidentiary rulings by the trial court. Appellate courts generally review only issues that were submitted to the trial court and that are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Sullivan v. City of Baton Rouge, 2014-0964 (La. App. 1 Cir. 1/27/15), 170 So.3d 186, 194-195; Louisiana Uniform Rules - Courts of Appeal, Rule 1-3. However, Article 2164 gives an appellate court the authority to "render any judgment which is just, legal, and proper upon the record on appeal." See Official Revision Comments - 1960, Comment (a) to Article 2164 ("The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.") Considering defendants consistently challenged the procedure utilized by the trial court below and objected to the introduction of Hwy 21, LLC’s unauthenticated evidence, we find the issue proper for our review. See Thompson v. Winn-Dixie Montgomery, Inc., 2015-0477 (La. 10/14/15), 181 So.3d 656, 665; cf. 16 Merrill v. Greyhound Lines, Inc., 2010-2827 (La. 4/29/11), 60 So.3d 600, 602; see also Wheeler v. Louisiana Peace Officer Standards & Training Council, 2017-1335 (La. App. 1 Cir. 6/3/20), 305 So.3d 387, 393, n.10.
Our supreme court has held that once a court of appeal decides to review an issue not raised by the parties, the better practice is to invite additional briefing from the parties prior to rendering judgment and failure to provide the parties an opportunity to be heard constitutes legal error. Merrill, 60 So.3d at 602. However, because additional briefing on this issue by the parties would have no bearing on our decision herein, we find it unnecessary.
[23, 24] The notice to vacate is an essential part of the summary eviction procedure provided for in La. Code Civ. P. art. 4701. Without this notice there can be no judgment issued under Article 4701. Bowling U.S.A., Inc. v. Genco’s Amusement Co., 536 So.2d 814, 816 (La. App. 1 Cir. 1988). In this matter, the trial court improperly took judicial notice of the notice to vacate without requiring any testimony as to the documents introduced into evidence by Hwy 21, LLC regarding same.
[25] Judicial notice is provided for in La. Code Evid. art. 201 in part as follows:
B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:
(1) Generally known within the territorial jurisdiction of the trial court; or
(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Pursuant to this article, courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of or- dinary understanding and intelligence. Labarre v. Occidental Chemical Company and Texas Brine Company, LLC, 2017-1370 (La. App. 1 Cir. 6/4/18), 251 So.3d 1092, 1106, writ denied, 2018-1380 (La. 12/3/18), 257 So.3d 196.
Based on our review of the record, we find the trial court legally erred in not following the rules of ordinary proceedings as they pertain to evidence, causing a substantial deprivation of defendants’ rights and materially affecting the disposition of this case. See 17 Hains v. Hains, 2009-1337 (La. App. 1 Cir. 3/10/10), 36 So.3d 289, 296. Hwy 21, LLC bore the burden of proving its case by a preponderance of the evidence. It cannot meet this burden by relying on unauthenticated evidence as was done in this case.
DECREE
For the above and foregoing reasons, we vacate the trial court’s March 14, 2023 judgment and remand for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against appellee, 71070 Hwy 21, LLC.
VACATED AND REMANDED.