Opinion
NO. 2011-CA-0417
09-14-2011
FIRMEN THOMAS v. DONNA SANTIAGO AND XYZ INSURANCE COMPANY
PIUS A. OBIOHA ALISTAIR A. ADKINSON MICHAL J. HARRIS PIUS A. OBIOHA & ASSOCIATES, LLC Counsel for Plaintiff/Appellant ANTHONY J. CIACCIO Counsel for Defendant/Appellee, Donna Santiago
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2004-8067, DIVISION "N-8"
HONORABLE ETHEL SIMMS JULIEN, JUDGE
JAMES F. MCKAY III
JUDGE
(Court composed of Judge James F. McKay III, Judge Max N. Tobias, Jr., Judge Daniel L. Dysart)
PIUS A. OBIOHA
ALISTAIR A. ADKINSON
MICHAL J. HARRIS
PIUS A. OBIOHA & ASSOCIATES, LLC
Counsel for Plaintiff/Appellant
ANTHONY J. CIACCIO
Counsel for Defendant/Appellee, Donna Santiago
AFFIRMED
The appellant, Firmen Thomas, seeks review of the judgment granted in favor of the appellee, Donna Santiago, dismissing the claims of Mr. Thomas. For the following reasons, we affirm.
STATEMENT OF FACTS/PROCEDURAL HISTORY
Mr. Thomas filed suit alleging Donna Santiago purchased his home in a foreclosure proceeding. Ms. Santiago allowed Mr. Thomas time to remove his belongings which consisted of furniture, clothing, household items and children's toys, etc. Mr. Thomas asserts that Ms. Santiago disposed of his belongings before he could remove them from the premises.
In response to Mr. Thomas' suit, Ms. Santiago filed an answer and a reconventional demand, in which she asserted affirmative defenses. Thereafter, a trial was held.
At trial, Mr. Thomas testified that he discovered a notice to vacate, dated May 19, 2003, posted on the door of his home, located at 219 South Alexander Street in New Orleans. The notice stated that Ms. Santiago had purchased the home and requested that Mr. Thomas and his family vacate the home. Mr. Thomas testified that he contacted Ms. Santiago to request additional time, claiming he wanted to verify the sheriff's sale and needed additional time to relocate. Mr. Thomas stated that Ms. Santiago agreed to provide him with additional time. After securing an apartment, Mr. Thomas requested additional time as the family could not move into the apartment until June 1, 2003. Mr. Thomas alleged Ms. Santiago agreed to the second request for additional time.
On May 31, 2003, Mr. Thomas secured a U-Haul truck, and started moving items from the home at 219 South Alexander Street to the new apartment. After unloading the items, Mr. Thomas discovered that the apartment was not large enough to accommodate all of his family's belongings. Mr. Thomas stated that he contacted Ms. Santiago to request more time to locate storage. Mr. Thomas testified that Ms. Santiago again agreed to his request for additional time.
Sometime after May 31, 2003, Mr. Thomas returned to the 219 South Alexander Street address to retrieve the remaining possessions and discovered that the locks were changed. Upon discovering that the locks were changed, Mr. Thomas contacted Ms. Santiago and they agreed to meet on Saturday, June 7, 2003, for Mr. Thomas to retrieve the rest of his belongings. Mr. Thomas testified that he drove by the home on Thursday, June 5, 2003, and noticed that his belongings were still in the home. Mr. Thomas also testified that he noticed an empty dumpster in front of the property when driving by that first week of June.
Mr. Thomas stated that on June 7, 2003, he rented another U-Haul truck but that Ms. Santiago failed to show. When he called her she stated that his property had been disposed of and that she was not going to meet him at the South Alexander Street home that morning. Mr. Thomas testified that he looked in the window and saw that the house was empty and that everything had been cleaned. Mr. Thomas peered into the dumpster, but the dumpster was empty. Mr. Thomas also checked the lock on the shed. The lock he placed on the shed had been cut and a new lock was placed on the shed, preventing Mr. Thomas from entering.
During trial, Mr. Thomas presented a list of items he alleged were in the house at the time the locks were changed. Mr. Thomas provided an estimate of the value of the items. Mr. Thomas stated that all of his paperwork, including receipts for the purchase of the items Ms. Santiago disposed of, was in the house at the time the locks were changed. Finally, Mr. Thomas stated that he never filed a police report or an insurance claim regarding the property disposed of by Ms. Santiago.
Ms. Santiago testified that she purchased the property located at 219 South Alexander Street at a foreclosure sale on May 8, 2003, with the intention to renovate and sell the home.
Ms. Santiago stated that she first placed a notice to vacate on the door of 219 South Alexander Street on May 14, 2003. Ms. Santiago testified that she also placed the notice through the mail slot, on the window, and on the gate leading to the driveway. Ms. Santiago placed a second notice to vacate, dated May 19, 2003, on the door, on the window, on the gate and through the mail slot. Ms. Santiago testified that she received a telephone call from Mr. Obioha, counsel for Mr. Thomas, requesting additional time for the family to move out. Ms. Santiago stated that she consented to Mr. Obioha's request.
Thereafter, Ms. Santiago testified that she would occasionally drive by the home located on South Alexander Street to see what sort of activity was going on. One day, she noticed Mr. Thomas outside and introduced herself and informed him that she had spoken with his attorney and had agreed to provide him0 with more time to move. Ms. Santiago averred that this was the only conversation that she had with Mr. Thomas. Ms. Santiago stated that as an attorney, once she was contacted by Mr. Obioha, she believed her communications with Mr. Thomas should be conducted through his counsel.
Ms. Santiago continued driving by the property to see what sort of activity was taking place. However, Ms. Santiago testified that she did not approach the property as there was a dog under the house. On June 12, 2003, Ms. Santiago noticed that the dog was gone. Upon noticing the dog gone, Ms. Santiago stated that she contacted Mr. Obioha's office and spoke with a secretary or paralegal and asked if Mr. Thomas had moved and was informed that Mr. Thomas had moved. After the telephone call, Ms. Santiago walked around the house and noticed that the rear door and a window were open. Being concerned that someone might be in the house, Ms. Santiago contacted a friend, New Orleans Police Officer Eddie Selby, and asked him to accompany her inside. Upon his arrival, they entered the home to find the home in disarray.
Ms. Santiago testified that there were a couple of garbage bags in the kitchen, and that light fixtures, cabinets and countertops had been removed. Ms. Santiago noticed a loveseat with no cushions and a couch. Ms. Santiago stated there was clothing strewn throughout the house, mainly on the floor. Ms. Santiago testified that she noticed a headboard, rail and frame in an upstairs bedroom. Based upon her observations, Ms. Santiago believed the house had been vacated. Ms. Santiago did not stay in the home long as it was infested with fleas. Ms. Santiago requested that a worker secure the back door as the door had been kicked in. To better secure the home, Ms. Santiago stated that she had the locks changed.
Ms. Santiago stated that she sent a letter to Mr. Obioha on June 12, 2003, verifying the information regarding Mr. Thomas having vacated the property and informing Mr. Obioha that she changed the locks and would begin disposing of the articles left behind and cleaning the property beginning on June 16, 2003. The letter does not contain a date at the top. Ms. Santiago testified that her workers would not start disposing of the property and cleaning until the home had been treated for fleas. A dumpster was delivered to the property on June 24, 2003, after the home had been treated for fleas. Ms. Santiago provided the receipt, dated June 24, 2003, for the delivery of the dumpster. Ms. Santiago testified that she agreed to meet Mr. Thomas at the home, prior to June 24, 2003, to allow him a chance to retrieve his property and that Mr. Thomas failed to show.
Ms. Santiago acknowledged that her workers put a couple of boxes with papers and medication on the side because that looked important. Ms. Santiago brought those items to Mr. Obioha's office for Mr. Thomas. Other than what was delivered to Mr. Obioha's office, Ms. Santiago testified that she did not know what happened to any of the other property belonging to Mr. Thomas.
Officer Eddie Selby testified that he has been a police officer for thirty-five years. Officer Selby stated that he accompanied Ms. Santiago to the property located on South Alexander Street twice. The first time was to place the notice to vacate on the door. Officer Selby testified that the second time was to insure that no one was inside the home. Officer Selby stated that when they entered the home, it did not appear that anyone had been living there and that the home had been vacated. Officer Selby noticed plastic bags full of garbage and clothing strewn throughout the home. Officer Selby stated that he did not recall seeing any furniture in the house and that he did not go into the shed. Officer Selby testified that they did not stay in the house very long because of the fleas. Officer Selby stated that when they left, the window and rear door were closed.
In its written reasons for judgment, the trial court acknowledged that the testimony of the parties differed. The trial court noted that Mr. Thomas possessed no receipts, canceled checks or credit card statements to reflect what the items cost. The trial court found that Ms. Santiago's documentation supported her testimony. The trial court found Mr. Thomas failed to prove his case by a preponderance of the evidence. The trial court rendered judgment in favor of Ms. Santiago, dismissing Mr. Thomas' case against her with prejudice. Mr. Thomas filed a motion for a new trial, which the trial court denied. Mr. Thomas then filed a timely motion for appeal.
STANDARD OF REVIEW
In Semmes v. Klein, 2010-1734, p. 2 (La. App. 4 Cir. 7/8/11), -- So.3d --, 2011 WL 2685466, this Court recently addressed the Court's obligation in relation to cases on appeal and stated:
It is this Court's duty on appeal to review the record in its entirety for errors of fact and errors of law. See, La. Const. Art. V, §§5(C) and 10(B) (West 2006). In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100, p. 4 (La. 1/16/96), 666 So.2d 612, 614. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings. It is only where documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, that the reviewing court may well find manifest error in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder's finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. Esco, 549 So.2d 840, 844-845 (La. 1989).With this duty in mind, we now turn to the record before us.
DISCUSSION
Mr. Thomas' first assignment of error alleges that Ms. Santiago had no legal authority to dispose of the property at issue. Mr. Thomas argues that Ms. Santiago took no legal action, such as a petitory or possessory action, to remove him and his belongings from the home. Further, Mr. Thomas argues that the rules regarding the seizure of movables left by a defaulting lessee are not applicable as no lease existed between the parties. Mr. Thomas argues that the one thing that is clear is that he expressed his intent to retrieve his property. Further, Mr. Thomas, without conceding that the conversation took place, argues that Ms. Santiago should have verified with Mr. Obioha the paralegal's statement that Mr. Thomas had moved out of the South Alexander Street home.
In response, Ms. Santiago argues that there is no provision of law which precisely addresses this particular issue since there was never a lease between the parties. However, Ms. Santiago argues that the trial court was within its discretion in finding that any property was abandoned.
However, we find that the Code of Civil Procedure does contain provisions of law which are directly on point. Therein, an "occupant" is defined as a "sharecropper; half hand; day laborer; former owner; and any other person occupying immovable property by permission or accommodation of the owner, former owner, or another occupant, except a mineral lessee, owner of a mineral servitude, or a lessee of the owner." La. C.C.P. art. 4704. (Emphasis supplied.). Additionally, when the owner of immovable property wishes to evict the occupant after the purpose for occupancy has ceased, the owner shall first cause a written notice to vacate the property to be delivered to the occupant. La. C.C.P. art. 4702. This written notice is to provide the occupant with five days to deliver the premises. Id. Mr. Thomas, the former owner of 219 South Alexander Street, qualifies as an occupant. Ms. Santiago, as the owner wishing to evict Mr. Thomas, caused a written notice to vacate to be delivered. The written notice, dated May 14, 2003, provided Mr. Thomas until May 21, 2003, to vacate, thus satisfying La. C.C.P. art. 4702. While Mr. Thomas testified that he did not receive a notice until May 19, 2003, the trial court possessed the right to grant more weight to Ms. Santiago's testimony as to when the notice was first placed upon the property.
The Code goes on to provide that:
After the required notice 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.La. C.C.P. art. 4731(B).
In this instance, Ms. Santiago possessed a reasonable belief that Mr. Thomas had vacated the home. Thus, no further judicial action was required before Ms. Santiago could lawfully take possession of the premises. Ms. Santiago testified that she drove by the home and always noticed a dog under the house. Ms. Santiago stated that on June 12, 2003, she noticed that the dog was gone. Ms. Santiago testified that she contacted Mr. Obioha's office to determine whether Mr. Thomas had vacated and was informed that he had. Further, Ms. Santiago walked around and noticed that a window and the rear door were open. Thereafter, she and Officer Selby entered the residence and noticed garbage bags and clothing strewn about. While Officer Selby testified that he did not notice any furniture, Ms. Santiago testified that she noticed very little furniture, and not the bulk of the items that Mr. Thomas testified were left in the home. We find Ms. Santiago was reasonable in believing that Mr. Thomas had abandoned the premises and remaining contents and lawfully gained possession of the home. Further, Ms. Santiago provided Mr. Thomas with opportunities to remove the contents. Ms. Santiago was reasonable in believing that any remaining contents were abandoned.
In this case, there were two permissible views of the testimony. The trial court determined that the documentation submitted by Ms. Santiago supported her version of the events. For instance, Mr. Thomas testified that an empty dumpster sat in front of the property during the first week of June. Ms. Santiago testified that the dumpster was not delivered until June 24, 2003. The receipt for the dumpster submitted by Ms. Santiago supported her testimony as the receipt was dated June 24, 2003. There is no manifest error in the trial court's decision to grant greater weight to Ms. Santiago's version of the events. We find this assignment of error to be without merit.
Next, Mr. Thomas argues the trial court erred in determining that Mr. Thomas was entitled to no damages because he had "no receipts, canceled checks or credit card statements reflecting what he paid for any of [his property]." Mr. Thomas argues that while he was unable to prove the value of his losses with absolute certainty, he submitted a detailed list of his furnishing, clothes and other belongings with the approximate aggregate value of the property. At the very least, Mr. Thomas argues that he should be awarded the value of the property Ms. Santiago identified as being in the house.
Mr. Thomas misconstrues the trial court's reasons for judgment. While the trial court noted that Mr. Thomas provided no receipts, canceled checks, or credit card statements reflecting the value of the items he alleged Ms. Santiago unlawfully disposed of, the trial court did not find that Mr. Thomas proved his case except for the amount of damages. The trial court stated that it found that Mr. Thomas failed to prove his case by a preponderance of the evidence. There was no indication that the trial court found that Ms. Santiago unlawfully disposed of Mr. Thomas' property. The trial court stated that the documentary evidence submitted by Ms. Santiago supported her testimony, which was contrary to Mr. Thomas' testimony. Ms. Santiago believed the house to be vacated and any property remaining to be abandoned. As stated earlier, Ms. Santiago was reasonable in believing that Mr. Thomas had abandoned the premises and any remaining personal belongings. We find this assignment of error to be without merit.
CONCLUSION
Accordingly, the judgment of the trial court dismissing Mr. Thomas' case is affirmed.
AFFIRMED