Opinion
NUMBER 2015 CA 0679
11-09-2015
KELLER WILLIAMS REALTY v. DEMETRI MELEKOS AND MARY VEGA
Keller Williams Realty Slidell, LA In Proper Person Plaintiff/Appellee P. David Carollo Slidell, LA Counsel for Defendants/Appellants Demetri Melekos and Mary Vega
NOT DESIGNATED FOR PUBLICATION
Appealed from the City Court of Slidell Parish of St. Tammany State of Louisiana
Docket No. 2015 E 0520
Honorable James "Jim" Lamz, Judge
Keller Williams Realty
Slidell, LA
In Proper Person
Plaintiff/Appellee
P. David Carollo
Slidell, LA
Counsel for
Defendants/Appellants
Demetri Melekos and
Mary Vega
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
This is an appeal of an eviction judgment wherein the lessees were evicted from property of which they claim possession was never delivered to them.
FACTS AND PROCEDURAL HISTORY
In January 2015, Demetri Melekos and Mary. Catherine Vega (collectively "lessees") signed a written agreement with Keller Williams Realty Professionals to lease a single family house located at 31147 Shannon Drive, in Lacombe, Louisiana, for the sum of $2,100.00 per month. The term of the lease was to commence on February 1, 2015, and end on January 31, 2016. According to the lease agreement, the monthly rent was due on or before the first day of each month, payable at the offices of. Keller Williams. Additionally, the lease agreement recited that a security deposit of $2,000.00 was received, but that the security deposit " is not an advance rental and Lessee may not deduct any portion of the deposit for rent due to Lessor. " (Emphasis in original.)
The lease agreement shows that Mr. Melekos and Ms. Vega signed the agreement on January 26, 2015, and Gayle Macomber, the agent for Keller Williams, signed the agreement on January 28, 2015.
On February 6, 2015, Keller Williams filed a rule for eviction with the City Court of Slidell. In the rule, Keller Williams indicated that the lessees had violated the terms of the residential rental agreement (i.e., the lease) based on past due rent. Keller Williams also indicated that the lessees had waived the five-day statutory notice to vacate in the rental agreement. A hearing on the rule to evict was scheduled for February 19, 2015.
On the date set for the hearing, an agent for Keller Williams (the same agent who had signed the lease agreement on behalf of the company) and Mr. Melekos appeared. Following a brief exchange with the trial judge, the rule for eviction was granted, and the trial judge issued a Warrant of Possession that same day. The lessees filed a motion for new trial, or in the alternative, a motion for an appeal. The trial judge denied the motion for new trial, but granted the lessees' alternative motion for an appeal on February 20, 2015.
See La. C.C.P. art. 4733.
DISCUSSION
Due to the summary nature of the proceedings in this eviction matter, we have a very limited record before us, consisting simply of the rule for eviction, a motion for new trial with an alternative motion for appeal, the written rulings on the foregoing pleadings, a copy of the parties' lease agreement, and a transcript of the eviction hearing. Although in pursuing this appeal, the lessees allege some provisions of the lease are ambiguous, they nevertheless primarily argue that under the terms of the lease, Keller Williams was not entitled to evict them. They further argue that even if the eviction is upheld, Keller Williams was not entitled to retain the $2,000.00 security deposit the lessees paid in conjunction with the execution of the lease.
In addressing the lessees' contentions on appeal, we should first point out that it is well settled that a summary action for eviction of a lessee involves the single issue of whether the lessor is entitled to possession of the leased premises. Vicknair v. Watson-Pitchford, Inc, 348 So. 2d 695, 696 (La. App. 1st Cir. 1977); Monroe Housing Authority v. Coleman, 46,307, p. 2 (La. App. 2d Cir. 5/25/11), 70 So. 3d 871, 873. 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. These jurisprudential rules, however, do not preclude the lessee from asserting defenses that are germane to the lessor's right of possession. Vicknair, 348 So. 2d at 696; Capone v. Kenny, 94-0888, pp. 2-3 (La. App. 4th Cir. 11/30/94), 646 So. 2d 510, 512.
Louisiana Code of Civil Procedure article 4701 provides, in pertinent part:
When a lessee's right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.The lease in this case includes an express provision by which the lessees waived the statutory notice recited in La. C.C.P. art. 4701; hence, Keller Williams was authorized to have the lessees cited summarily by a rule to show cause why they should not be ordered to deliver possession of the premises back to Keller Williams in accordance with La. C.C.P. art. 4731. In the rule, Keller Williams stated "past due rent" as the grounds upon which eviction was sought.
...
A lessee may waive the notice requirements of this Article by written waiver contained in the lease, in which case, upon termination of the lessee's right of occupancy for any reason, the lessor or his agent may immediately institute eviction proceedings in accordance with Chapter 2 of Title XI of the Louisiana Code of Civil Procedure. [Emphasis added.]
See La. C.C.P. arts. 4731-4735.
In the matter before us, the lessees did not file an answer to the rule nor were they required to. See Lasseigne v. Lasseigne, 393 So. 2d 435, 437 (La. App. 3d Cir. 1980), writ denied, 399 so. 2d 601 (La. 1981). At the hearing on the rule, only Mr. Melekos appeared on behalf of the lessees without counsel. He argued to the judge that there was no execution of the lease, because the lessees never took possession of the property due to the lessees never having been given a key to the premises. He also argued that the lessees were not served with notice of eviction nor had an executed copy of the lease been provided to them. The trial judge rejected these arguments and granted Keller Williams the eviction.
By the following day, the lessees obtained counsel who filed a motion for new trial, or in the alternative, a motion for appeal In that pleading, counsel for the lessees first raised the assertion that Keller Williams was not entitled to seek eviction because it had not complied with the following provision contained in the lease agreement:
VIOLATION Should the Lessee at any time violate any of the conditions of this lease, ... and should such violation continue for a period of five (5) days after written notice has been given Lessee (such notice may be posted on Lessee's door) then, at the option of the Lessor shall have the further option to, at once, demand the entire rent for the whole term, or immediately cancel this lease, or to proceed for past due installments only, all without putting the Lessee in default. Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises.Also in that pleading, counsel acknowledged that an email was sent to the lessees on February 5, 2015, at 10:10 a.m., stating that the rent had to be paid by the close of business that day, but counsel additionally stated that Mary Vega had been separately informed the rent could not be paid online the same way the security deposit was paid. Counsel further alleged that Mr. Melekos "indicated that he telephoned the Lessor's agent in this matter and advised him that he would be there on Saturday, February 7, 2015 to pay the rent and pick up the keys. Based on what happened [i.e., the filing of the rule for eviction], that became impossible."
The motion states that a copy of the email is attached to the motion; however, a copy of the email does not appear in the record before us. --------
At the eviction hearing, both Mr. Melekos and a representative for Keller Williams, Gayle Macomber, were sworn in at the beginning of the hearing. During the hearing, Ms. Macomber stated that Mr. Melekos was scheduled to pick up the keys for the property, but he did not. She also stated: "We contacted him numerous times saying you still have to pay the rent and he did not pay the rent and we've sent him numerous emails."
According to the payment provision in the lease, "any monthly rental payment not received by the 5th of the month is considered delinquent." Thus, it was not until February 6, 2015, that a violation of the lease agreement, based on non-payment of rent, occurred. Also on that date, Keller Williams filed a rule for eviction, which was posted on the door of the leased premises on February 9, 2015. The posted rule provided notice that a hearing on the rule to evict was scheduled for February 19, 2015. As previously recounted, Mr. Melekos appeared at that hearing; however, neither at the hearing nor any time prior thereto did the lessees pay or proffer the rental payment owed.
Certainly, on February 9, 2015, the lessees were given written notice of the violation as required by the lease agreement, which expressly provided that "such notice may be posted on Lessee's door." This written notice occurred ten days prior to the hearing on the rule to evict, and during that time, the violation based on failure to pay the rent continued unabated by the lessees. Based on the limited record before us, we cannot say that the trial judge erred in granting Keller Williams a judgment of eviction and warrant of possession in accordance with the parties' lease agreement. The lessees not only acknowledge that the rent for February 2015 was not paid by February 5, 2015, but it was further admitted that the rent was never paid.
Moreover, we do not find, as the lessees allege, that this became "impossible" once the rule for eviction was filed. See Cantrell v. Collins, 07-1192, pp. 5-6 (La. App. 1st Cir. 2/8/08), 984 So. 2d 738, 741, writ denied, 08-0526 (La. 4/25/08), 978 So. 2d 368 (wherein this court found that the although the lessor's refusal to accept the lessee's rent payment did not extinguish the lessee's obligation to pay that rent, the lessor's refusal to accept the payment barred him from seeking to evict her on the specific grounds of non-payment of rent); see also Ergon, Inc. v. Allen, 593 So. 2d 438 (La. App. 2d Cir. 1992) and Atkinson v. Richeson, 393 So. 2d 801 (La. App. 2d Cir. 1981) (in which the lessees in both of those cases attempted to make payment upon being notified by the lessors that the rent was past due and the courts exercised judicial control to deny the lessors cancellation of the leases and eviction upon a showing that the lessees made a good faith error and acted reasonably to correct to it). Hence, we cannot say that Keller Williams was granted a judgment of eviction in violation of the parties' lease agreement.
Nor do we find that the trial judge should have denied the rule to evict based on Keller Williams' alleged failure to place the lessees in possession of the leased premises. A lessor can be found in breach of the lease agreement based on his failure to place the lessee in actual possession of the thing leased, which the lessor is obliged to do. See La. C.C. art. 2682 and Moore v. Cameron Parish School Board, 563 So. 2d 347, 349 (La. App. 3d Cir. 1990) (wherein the court held "[i]n view of the fact that possession of the thing leased is the very object of a contract of lease, it is reasonable to expect the price the lessee paid for possession should be reduced or entirely refunded if possession of the leased premises fails"). However, in this case, Ms. Macomber stated at the hearing that Mr. Melekos was scheduled to pick up the keys to the property, but "he didn't." The lessees also acknowledged in their motion for new trial/appeal that Mr. Melekos indicated that he planned to pick up the keys to the property on Saturday, February 7, 2015, but abandoned those plans once the rule for eviction was filed on February 6, 2015. Thus, the evidence does not clearly show that Keller Williams denied the lessees possession of the thing leased; rather, the record seems to indicate that the lessees simply failed to take possession.
As for the lessees' assertion on appeal that they are entitled to a refund of the $2,000 security deposit they paid, we find that this claim is not properly before us. At no time during the proceedings below did the lessees request a refund of their security deposit or allege that Keller Williams improperly retained the deposit. Instead, in the proceedings below, the only reference made to the security deposit is found in the motion for new trial/appeal, wherein the lessees simply recited that a $2,000 security deposit and other fees were paid by the lessees to agents representing Keller Williams. Generally, appellate courts will not consider issues raised for the first time on appeal. Thomas v. Bridges, 13-1855, pp. 11-12 (La. 5/7/14), 144 So. 3d 1001, 1009; Johnson v. Montoya, 13-1951, p. 6 (La. App. 1st Cir. 5/2/14), 145 So. 3d 418, 422.
Moreover, even if the lessees had attempted to request a refund in the proceedings below, such a claim would not have been proper. As we previously stated, a summary action for eviction involves the sole issue of whether the lessor is entitled to possession of the leased premises. Any claims for monetary damages must be brought separately in an ordinary proceeding. See Hart v. Masur Dean, 47,012, pp. 9-10 (La. App. 2d Cir. 3/7/12), 90 So. 3d 30, 35. Accordingly, we decline to consider or rale upon the lessees' contention that they are entitled to a refund of the security deposit paid.
CONCLUSION
For the foregoing reasons, we find that the trial judge properly granted a judgment of eviction and warrant of possession in this matter. In so finding, we assess all costs of this appeal to the appellants, Demetri Melekos and Mary Vega.
AFFIRMED.