Opinion
2018 CA 1073
02-26-2019
PIN OAK v. SHEILA McSWEENEY
Amythist Kearney Hammond, Louisiana Attorney for Defendant/Appellant Sheila McSweeney Douglas T. Curet Hammond, Louisiana Attorney for Plaintiff/Appellee Pin Oak
NOT DESIGNATED FOR PUBLICATION On Appeal from the City Court of Hammond Seventh Ward In and for the Parish of Tangipahoa State of Louisiana
Docket No. 2018-E-00818 The Honorable Grace Bennett Gasaway, Judge Presiding Amythist Kearney
Hammond, Louisiana Attorney for Defendant/Appellant
Sheila McSweeney Douglas T. Curet
Hammond, Louisiana Attorney for Plaintiff/Appellee
Pin Oak BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal from a judgment of eviction of appellant, Sheila McSweeney, in favor of appellee, Pin Oak. For the reasons that follow we reverse.
The record indicates that "Pin Oak" may actually be the trade name for "Southeastern Associates, Ltd." As such, Southeastern Associates, Ltd. would be the proper party plaintiff and is the name in which the eviction proceedings should have been brought. See La. C.C.P. art. 687. But while it has been held that any judgment rendered against a trade name is a nullity, we recognize that the apparently nullity of the judgment before us does not bar our review of the judgment on appeal. See La. C.C.P. arts. 2005-2006; Bell v. Dox Apartments, LLC, 2013-0975 (La. App. 1 Cir. 2/3/14), 2014 WL 3555963, writ denied, 2014-0439 (La. 4/17/14), 138 So. 3d 627; and Assensoh v. Diamond Nails, 2004-1130 (La. App. 4 Cir. 2/16/05), 897 So. 2d 806, 811, writ denied, 2005-0601 (La. 4/29/05), 901 So. 2d 1073.
FACTS AND PROCEDURAL HISTORY
McSweeney and Pin Oak entered into a lease agreement on June 19, 2017. Pin Oak participates in the United States Department of Housing and Urban Development's (HUD) Rural Development Section 515 program. The lease between McSweeney and Pin Oak required rental payments be made on or before the first day of each month. The lease gave the lessee a ten day grace period, wherein no late fee was charged. After the 11th day of the month, a ten dollar late fee was imposed. There were numerous times that McSweeney paid her rent after the 11th of the month. She claims that she and Pin Oak had a custom of her paying the rent late with the $10.00 late fee and that between December 2016 and April 2018, she was late ten times.
Although the lease at issue in this matter began on July 1, 2017, under the HUD program, the lessee was re-certified every year to obtain rental assistance. McSweeney had been living at Pin Oak since around 2006.
On April 12, 2018, Pin Oak's manager, Brenda LeCompte, sent McSweeney a reminder that the rent was due on the 1st of the month and Pin Oak could proceed with eviction after the 12th of the month. The note also requested that McSweeney make arrangements to pay the rent timely, as Pin Oak would no longer accept the rent late. McSweeney informed LeCompte on April 13, 2018, that she was attempting to begin making the rent payments timely. The May 2018 rent was again late, and Pin Oak notified McSweeney on May 5, 2018 that her rent was past due, that a late charge would be included if the rent was paid after the 10th of the month, and that eviction proceedings could be initiated.
On May 12, 2018, a termination notice was placed on McSweeney's apartment door, as her rent for the month of May had not been paid. The termination notice to McSweeney notified her that she had violated the lease, that the lease would be terminated, and that she would be required to vacate the premises.
On May 18, 2018, Pin Oak filed a motion and rule for possession against McSweeney due to lease and rules violations for non-payment of rent. McSweeney attempted to pay the May 2018 and June 2018 rent on May 18, 2018. In response to the motion and rule for possession, McSweeney filed several exceptions as well as an answer and sworn affirmative defense with incorporated memorandum in support. An eviction trial was held on June 26, 2018. The city court held that the evidence showed McSweeney made rental payments late, which according to the lease, was a ground for eviction. A judgment of eviction was signed on June 26, 2018, giving McSweeney until June 29, 2018, at 5:00 p.m. to vacate the premises. McSweeney filed a motion for suspensive appeal from the June 26, 2018 judgment.
STANDARD OF REVIEW
It is well-settled that a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, 549 So. 2d at 844. If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So. 2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev., 617 So. 2d 880, 883 (La. 1993).
LAW AND DISCUSSION
In her third assignment of error, McSweeney alleges that the trial court erred in ordering the eviction because she paid her May 2018 rent before the trial, and Pin Oak did not return the rent. LeCompte testified that she did receive the rent payments from McSweeney for May and June, which were slipped through a drop box in the door, but that she is holding them until the court decided the eviction matter. She admitted to being in possession of the money orders and not returning them to McSweeney. McSweeney testified that she paid both the May rent, including a late fee, and the June rent, neither of which was ever returned to her. Pin Oak claims that McSweeney was given written notification in a memo dated May 18, 2018, that it would no longer accept the rent payment late and that "[t]ermination of lease has been filed with the courthouse."
This court stated in Billiot v. Hue, 2010-1825 (La. App. 1 Cir. 5/6/11), 2011 WL 1944120, at *2 (unpublished), that "[i]t is well settled in Louisiana law that the summary action of eviction is based on a required notice to vacate and that acceptance of rent after that notice (but before the judgment of eviction) vitiates the notice and prevents a lessor from obtaining such judgment." See La. C.C.P. arts. 4701, 4702, and 4731; see also Constantin Land Tr. v. Pitre Indus., L.L.C., 2016-0993 (La. App. 1 Cir. 7/10/17), 225 So. 3d 1089, 1097, writ denied, 2017-1644 (La. 11/28/17), 230 So. 3d 224. Although a lessor may have a right to rental payments for the occupancy during the time the tenant stays against the landlord's wishes, acceptance of rent is deemed to negate the notice to vacate required for summary eviction. Bowling U.S.A., Inc. v. Genco, 536 So. 2d 814, 816 (La. App. 1 Cir. 1988); Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So. 2d 686, 689 (La. App. 4 Cir. 1969). The notice to vacate is an essential part of the summary eviction procedure provided for in La. C.C.P. art. 4701. Without this notice, there can be no judgment issued under La. C.C.P. art. 4701. Bowling U.S.A., Inc., 536 So. 2d at 816. Pin Oak's argument that it is holding the money orders and they were not "accepted" is without merit. In Four Seasons, Inc., the court rejected a similar argument, finding that even though a check for the rent was not negotiated by the lessor, nonetheless it was accepted and not returned. Four Seasons, Inc., 223 So. 2d at 689.
The record shows that the eviction proceedings were filed on May 18, 2018. LeCompte testified that after the eviction proceeding was filed, McSweeney attempted to pay the rent, but Pin Oak refused to accept it. McSweeney then put the rent for May 2018 and June 2018 through the door slot in the office after Pin Oak refused to accept her payment. LeCompte testified that Pin Oak is holding those two money orders until after the eviction proceeding.
Following McSweeney's suspensive appeal of the judgment of eviction, Pin Oak was granted leave to deposit the money orders in to the registry of the court pending the suspensive appeal.
Pin Oak argues that McSweeney was not operating in good faith when she placed the rental payments in the office door slot after the eviction proceeding was filed. Pin Oak relies on the general law of contracts stated in N-Y Assocs., Inc. v. Bd. of Comm'rs of Orleans Par. Levee Dist., 2004-1598 (La. App. 4 Cir. 2/22/06), 926 So. 2d 20, 24, writ denied, 2006-0666 (La. 5/26/06), 930 So. 2d 31, that "[b]ad faith is not the mere breach of faith in not complying with a contract, but a designed breach of it from some motive of interest or ill will." We further note that the determination of whether a party to a contract acted in bad faith is a factual determination to be made by the trial court and therefore subject to the manifest error/clearly wrong standard of appellate review. N-Y Assocs., Inc., 926 So. 2d at 24. The trial court made no factual determination as to the bad faith of McSweeney as it was not required to do so. There was no claim that McSweeney breached the lease agreement in bad faith. The claim was that she breached the lease agreement by paying the rent late.
As we stated above, the "summary action of eviction is based on a required notice to vacate and that acceptance of rent after that notice (but before the judgment of eviction) vitiates the notice and prevents a lessor from obtaining such judgment." Billiot, 2011 WL 1944120, at *2. Thus, we find that Pin Oak's acceptance and retention of the rental payment by McSweeney, which was subsequent to the notice of eviction, vitiated the notice and maintained McSweeney's right to possession of the premises. Accordingly, we find merit to this assignment of error and reverse the city court's judgment of eviction. We pretermit any discussion of the remaining assignments of error.
CONCLUSION
For the above and foregoing reasons, we reverse the June 26, 2018 judgment of the Hammond City Court. All costs of this appeal are assessed against the appellee, Pin Oak.
REVERSED. GUIDRY, J., concurs and assigns reasons. GUIDRY, J., concurring.
The record reveals that Ms. McSweeney slipped money orders, representing her overdue rent payments for the months of May and June 2018, through a mail slot in the apartment manager's office door after business hours on June 12, 2018, in spite of communications from Pin Oak that such payment would not be accepted. Those money orders were not negotiated by Pin Oak and were placed in the registry of the district court following the judgment in this matter. It has been held that the receipt and retention of a payment, even though not negotiated, can vacate the notice to vacate in an eviction action, but the mere retention of the payment, alone, is not sufficient to negate the notice to vacate. There must be a showing of acceptance. See Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So. 2d 686, 689 (La. App. 4th Cir. 1969).
At the eviction hearing, the apartment manager for Pin Oak testified that Ms. McSweeney's payment "had not been accepted." While such may have been Pin Oak's intent, due to Pin Oak's failure to communicate such non-acceptance after receipt of the payment, I cannot say that the majority errs in construing Pin Oak's actions, under those circumstances, as acceptance sufficient to negate the notice to vacate and preclude Ms. McSweeney's eviction. Cf. Cahn v. Cox, 12-0315, p. 7 (La. App. 4th Cir. 10/24/12), 101 So. 3d 1031, 1034-35, writ denied, 13-0005 (La. 1/4/13), 106 So. 3d 540 (wherein the court found the record to indicate that the partial payment the lessor received after issuing a notice to vacate was not accepted because the payment, although retained by the lessor, was not negotiated and the lessor sent several letters and emails to the lessee informing him that the payment was not accepted). Therefore, for the foregoing reasons, I concur.