Barry Bernadas C/O Bella Zoya Properties v. Donald Palmer

BARRY BERNADAS C/O * NO. 2022-CA-0758
BELLA ZOYA PROPERTIES
*
VERSUS COURT OF APPEAL
*
DONALD PALMER FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
SECOND CITY COURT OF NEW ORLEANS
NO. 2022-01188, “D”
Honorable Nadine Ramsey
******
Judge Karen K. Herman
******
(Court composed of Judge Daniel L. Dysart, Judge Rachael D. Johnson, and Judge
Karen K. Herman)

Michael J. Kasper
SOUTHEAST LOUISIANA LEGAL SERVICES
1340 Poydras Street, Suite 600
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED
APRIL 19, 2023

KKH
DLD
RDJ
This is an eviction proceeding. Appellant-Defendant, Donald Palmer,

appeals the trial court’s September 27, 2022 judgment, which granted the rule for

possession filed by Appellee-Plaintiff, Barry Bernadas c/o Bella Zoya Properties,

and ordered Appellant-Defendant to vacate the leased premises. For the following

reasons, we reverse the judgment of eviction.

FACTS AND PROCEDURAL HISTORY

Appellant-Defendant, Donald Palmer (“Palmer”), leased an apartment

located at 4545 Macarthur Boulevard in New Orleans. Appellee-Plaintiff, Barry

Bernadas c/o Bella Zoya Properties (“Bernadas”), is the owner/landlord of the

property.

The apartment was leased through the Permanent Supportive Housing

(“PSH”) program, administered by the START Corporation. As a participant in

said program, Palmer’s rent is fully subsidized. According to Palmer, he also

receives supportive services from the Assertive Community Treatment (“ACT”)

team, which provides mental health care to patients at their home as well as a

housing specialist to assist the patients interacting with landlords to prevent

conflict that may arise during the tenant’s occupancy.

1

On September 20, 2022, Bernadas initiated eviction proceedings against

Palmer in Second City Court, claiming that Palmer violated the terms of the lease

because Palmer was “verbally abusive,” “verbally attack[ed] women for no

apparent reason,” and “use[d] foul language and disrupts the building.” The

petition specifically alleged that on September 19, 2022, Palmer “verbally

attac[k]ed the owner of the property” on two occasions. The rule for possession

was tacked on Palmer’s door on September 20, 2022, the same date as the filing

thereof.

On September 27, 2022, Palmer filed his answer, affirmative defenses, and a

dilatory exception of prematurity.1 In the exception, Palmer argued that the lease

agreement required a seven-day notice to cure any lease violation. He claimed that

in the rule for possession, Bernadas alleged a lease violation occurred on

September 19, 2022, and instead of providing the requisite notice and seven days

to cure, he filed for eviction the following day.

The matter came for hearing before the trial court on September 27, 2022.2

Prior to reaching the merits, the trial court addressed Palmer’s exception of

prematurity. Although the petition lists the date of only one incident, September

19, 2022, Bernadas claimed that there were several incidents that led to the filing

1 In his answer, Palmer alleged that he was standing on his second floor balcony speaking with a

neighbor while Bernadas was near the mailboxes and walked out and asked if Palmer was talking
to him. Defendant claims that he told Plaintiff he was not talking to him but that Plaintiff
“continued with the confrontation, stating ‘I’m asking you again, are you talking to me?’” and
Bernadas threatened Palmer with eviction. Palmer alleged that Bernadas is aware that he has
severe mental illness and participates in PSH. Palmer also alleged that Bernadas is aware that
Palmer is under the care of ACT and was in direct contact with the housing specialist, Charlene
Ellis. Palmer asserted that despite knowing this alternative contact, Bernadas initiated the
confrontation with Palmer.

2 The trial court swore in Palmer and Bernadas at the start of the proceedings. Palmer was

represented by counsel. Bernadas represented himself. Aside from placing his name on the
record, Palmer did not provide testimony. The information relayed at the hearing was through
argument by defense counsel.

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of the eviction proceedings, including one that occurred on August 10, 2022, four

from August 21, 2022, and two that occurred on September 19, 2022.

With regard to the September 19, 2022 incident(s), Bernadas stated that he

was working on the mailboxes and speaking with a former tenant when Palmer

approached and verbally attacked him. The transcript provides:

-- he [Palmer] comes and verbally attacks me while I’m
working on mailboxes because I was speaking with a former tenant
who is not supposed to be there.

So he decides to come down and rant and rave to me because as
I was walking by I asked him, because he was talking, nobody else
was around; I asked him if he was speaking to me. The next thing you
know I’m [sic] verbally barraged. You know, it’s just incredible.

Then he decides to come down from his apartment, get in my
face. It wasn’t until another person walked up that I don’t know but
was visiting a tenant; he stood behind me because of what was – I’m
guessing it was because of what was going on with him. And then
when he realizes that he leaves and goes back up to his apartment and
starts up again. It’s just – it’s incredible. And you know I mean it’s a
very dangerous situation now.

Bernadas also stated that on another occasion Palmer “attacked” a woman in

the building. Bernadas alleged that the woman had walked by Palmer’s door and

Palmer came out and starting “yelling at her, calling her a ‘hoe’ and a prostitute.’”

Bernadas further claimed that the woman involved did not come to court because

she was “petrified.”

Video of the alleged incidents were contained on Bernadas’s phone. The

trial court took a brief recess to review the videos in chambers. After the recess, the

trial court denied the exception of prematurity.

Defense counsel objected to the introduction of the videos. He claimed that

the first five videos (presumably those taken August 10 and 21, 2022) constituted

hearsay because Bernadas was not a witness to them and did not call a witness to

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authenticate and introduce the videos. As to the videos taken on September 19,

2022, defense counsel maintained that those were improper for lack of

authentication. The trial court overruled the objections.

Defense counsel then made arguments similar to those set forth in the

answer to the petition. Defense counsel noted that Palmer and Bernadas participate

in the PSH program. He also alleged that Bernadas was aware that Palmer was

mentally ill, was under the care of ACT, and had texted with Defendant’s housing

specialist subsequent to the September 19, 2022 incident. Defense counsel also

indicated that Bernadas “continued the confrontation with Mr. Palmer and even

raised his voice.” Defense counsel further claimed that the videos offered by

Bernadas do not capture the entire incident.

The trial court, after considering the arguments and the evidence presented,

granted the rule for possession, stating “I’ve looked at the videos, I’ve read the

briefs and I think the eviction is good.” The trial court then ordered Palmer vacate

the property by October 6, 2022.

Palmer thereafter filed a suspensive appeal. After the record was lodged with

this Court, Palmer moved to convert his suspensive appeal to a devolutive appeal.

DISCUSSION

Motion to Convert Suspensive Appeal to Devolutive Appeal

In his motion, Palmer seeks to convert the suspensive appeal to a devolutive

one because possession of the leased premises has been restored. He claims that

despite taking a suspensive appeal, he vacated the property to avoid harassment

from Bernadas and, at his case worker’s suggestion, that he move for his mental

health. Palmer alleges he does not want to abandon his appeal and that he retains a

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stake in clearing the eviction from his records. Palmer also argues that the appeal is

not moot because he still has a need for relief.

An appellate court effectively lacks jurisdiction when all the legal

controversies arising from the judgment become moot as there is no subject matter

on which the judgment can operate. Fid. Bank v. Succession of Dowden, 2020-

0241, p. 6 (La. App. 4 Cir. 10/7/20), --- So.3d ----, ----, 2020 WL 5939215 *3

(citing Allums v. Allums, 2017-0021, p. 3 (La. App. 4 Cir. 5/31/17), 221 So.3d 191,

193). “The justiciable controversy must normally exist at every stage of a

proceeding, including the appellate stage.” Id.; see also Cat's Meow, Inc. v. City of

New Orleans Through Department of Finance, 1998–0601, p. 9 (La. 10/20/98),

720 So.2d 1186, 1193.

“[A]n issue is ‘moot’ when a judgment or decree on that issue has been

‘deprived of practical significance’ or ‘made abstract or purely academic.’”

Edward v. Badie, 2019-0332, p. 2 (La. App. 4 Cir. 8/28/19), 282 So.3d 269, 270–

71 (quoting Cat's Meow, Inc., 1998-0601, p. 8, 720 So.2d at 1193). “A case is

‘moot’ when a rendered judgment or decree can serve no useful purpose and give

no practical relief or effect.” Id.

Palmer claims that he will be impacted by an eviction on his record. He

argues that it is difficult to find rental housing with a PSH voucher and with an

eviction on his record, he will be confined to substandard housing. He cites a few

law review articles in support of his argument, including Davida Finger, The

Eviction Geography of New Orleans: An Empirical Study to Further Housing

Justice, 22 U.D.C. L. REV. 23, 41 (Spring 2019), which stated, in part:

Screening companies can locate information such as eviction
records, and property owners routinely discriminate against tenants

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with an eviction on their record. Tenants with eviction records are
thus forced into less desirable housing options.

Palmer’s argument has merit. While Palmer will not have monetary damages

for a wrongful eviction, because the eviction will be on his record and he relies on

housing vouchers to lease an apartment, it is likely that he will be discriminated

against in finding housing in the future. As such, addressing the merits of the

eviction in this case will serve a useful purpose. Accordingly, we find that the

matter is not moot and grant the motion to convert the suspensive appeal to a

devolutive appeal.

Merits

Standard of Review

This Court in JoAnn Place v. Ricard, 2022-0456, pp. 10-11 (La. App. 4 Cir.

12/27/22), 356 So.3d 518, 526, set forth the standard of review in eviction

proceedings as follows:

In an eviction proceeding, the appellate court reviews the trial
court's factual findings for manifest error. 235 Holdings, LLC v. 235
Enters., LLC, 2020-0658, p. 5 (La. App. 4 Cir. 12/15/21), 334 So.3d
862, 866 (citing Armstrong Airport Concessions v. K-Squared Rest.,
LLC, 2015-0375, p. 9 (La. App. 4 Cir. 10/28/15), 178 So.3d 1094,
1100). Under this standard of review, an appellate court “must ... find
from the record that there is a reasonable factual basis for the [trial]
court’s findings of fact[,]” and “the record must establish that the
[trial] court's findings are not manifestly erroneous or clearly wrong.”
Guste Homes Resident Mgmt. Corp. v. Thomas, 2020-0110, p. 8 (La.
App. 4 Cir. 7/29/20), 302 So.3d 1181, 1187 (citing Mazzini v.
Strathman, 2013-0555, p. 4 (La. App. 4 Cir. 4/16/14), 140 So.3d 253,
256). “Factual findings should not be reversed on appeal absent
manifest error.” Id. (quoting Mazzini, 2013-0555, p. 4, 140 So.3d at
256). “Where legal errors of the trial court have tainted the fact
finding process” though, “the verdict below is not reviewed under the
manifest error standard and, if the record is complete, the appellate
court may make a de novo review of the record and determine the
preponderance of the evidence.” Id. at pp. 8-9, 302 So.3d at 1187
(quoting Hous. Auth. of New Orleans v. King, 2012-1372, p. 5 (La.
App. 4 Cir. 6/12/13), 119 So.3d 839, 842).

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The appellate court also reviews an eviction matter de novo if
the appeal presents a purely legal question. 235 Holdings, LLC, p. 5,
334 So.3d at 867 (citing Armstrong, 2015-0375, p. 9, 178 So.3d at
1101). Additionally, in an eviction proceeding, “when there is no
dispute as to the dispositive facts, the issue can be decided as a matter
of law and the review is de novo.” Affordable Care, LLC v. Martin,
54,286, p. 14 (La. App. 2 Cir. 4/13/22), 337 So.3d 615, 623 (citing
Armstrong, 2015-0375, pp. 9-10, 178 So.3d at 1101).

“The lessor has the burden of proving, by a preponderance of the evidence, a

valid lease and that the violation of the lease provides sufficient grounds for an

eviction.” 200 Carondelet v. Bickham, 2017-0328, pp. 4-5 (La. App. 4 Cir.

10/25/17), 316 So.3d 955, 959 (citing Guste Homes Resident Mgmt. Corp. v.

Thomas, 2012-0386, p. 8 (La. App. 4 Cir. 5/29/13), 116 So.3d 987, 991). “A

judgment of eviction must be reversed when the lessor fails to prove the legal

ground upon which the lessee should be evicted.” Hous. Auth. of New Orleans v.

Haynes, 2014-1349 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 99 (quoting Hous.

Auth. of New Orleans v. King, 2012–1372, p. 4 (La. App. 4 Cir. 6/12/13), 119

So.3d 839, 842).

Palmer argues that the trial court erred in granting the eviction because in

doing so it relied on unauthenticated hearsay evidence and because Bernadas failed

to establish that a violation of lease continued seven days from the notice of

noncompliance.

“[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.” JoAnn Place, 2022-

0456, p. 12, 356 So.3d at 527 (quoting Housing Auth. of New Orleans v. Haynes,

2014-1349, p. 24 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 104 (Tobias, J.,

concurring)).

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“‘Authentication’ is a process whereby something is shown to be what it

purports to be.” Carrie v. Jones, 2021-0659, p. 6 (La. App. 4 Cir. 1/21/22), 334 So.

3d 834, 841 (quoting State v. Coleman, 2012-1408, p. 22 (La. App. 4 Cir. 1/8/14),

133 So.3d 9, 25). “Authentication of evidence is required in order for evidence to

be admissible at trial.” Archaga v. Johnson, 2019-85, p. 12 (La. App. 5 Cir.

10/16/19), 280 So.3d 331, 340.

Regarding authentication, the Louisiana Code of Evidence states that “[t]he

requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter

in question is what its proponent claims.” Jones v. Boot Bar & Grill, 2022-0154,

pp. 20-21 (La. App. 4 Cir. 10/5/22), 350 So.3d 968, 983, writ denied, 2022-01639

(La. 1/18/23), 353 So.3d 728 (quoting La. C.E. art. 901(A)). “La. C.E. art. 901(B)

provides an illustrative, though not exhaustive, list of examples of authentication or

identification of evidence.” Carrie, 2021-0659, p. 7, 334 So.3d at 841. Such

evidence may come in the form of “[t]estimony by a witness with knowledge” that

the “matter is what it is claimed to be;” indications of the item’s distinctive

characteristics, including its “contents, substance, internal patterns, and other

distinctive characteristics;” or “[e]vidence describing the process or system used to

produce the item and showing that the process or system produces an accurate

result.” See La. C.E. art. 901(B)(1),(4),(9).

“Because authentication of evidence is a condition precedent to

admissibility, an exhibit that is not authenticated does not constitute competent

evidence.” Knoten v. Westbrook, 2014-0892, p. 6 (La. App. 4 Cir. 5/18/16), 193

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So.3d 380, 385 (quoting Price v. Roy O. Martin Lumber Co., 2004–0227, p. 8 (La.

App. 1 Cir. 4/27/05), 915 So.2d 816, 822).

Here, the evidence Bernadas relied on to establish that Palmer violated the

terms of his lease agreement were several videos stored on Bernadas’s phone. The

videos were not officially offered into evidence at the hearing and are not

contained in the record for appeal.3 Moreover, the videos were not properly

authenticated and thus are inadmissible.4

The videos of the August 10 and August 21, 2022, incidents that allegedly

depicted interactions between Palmer and a neighbor were not witnessed by

Bernadas. Bernadas did not call any witnesses to verify that the videos were in fact

what he had purported them to be or to testify about the alleged incidents. As such,

we find that Bernadas failed to lay the proper foundation required to authenticate

and admit the August videos into evidence.

Regarding the September 19, 2022 incident, the record provides that

Bernadas did have personal knowledge of the events contained in the video.

However, he did not identify the video as surveillance footage or demonstrate how

the information is stored or otherwise authenticate the video. See Roberts v. Boxer,

2019-1038, pp. 8-9 (La. App. 4 Cir. 11/18/20), 311 So.3d 513, 519–20 (finding

that body camera footage obtained from a police officer who responded to a car

accident was sufficiently authenticated where the motorist identified herself at the

scene on the day of the accident, the officer who responded, and the vehicles

3 The only exhibit actually admitted at the hearing was a copy of the lease agreement. The videos

were not included on the exhibit list.

4 Presumably, Plaintiff offered the video evidence to establish what Defendant said.
Nevertheless, we need not reach whether the videos constitute hearsay because the evidence was
not properly authenticated.

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involved in the accident, and the footage was corroborated by additional

photographs); State v. Rice, 2017-0446, pp. 2-3 (La. 6/29/17), 222 So.3d 32, 33-34

(finding that the surveillance video was sufficiently authenticated to support its

admission at a hearing where owner of surveillance system that captured video,

who lived across the street from the defendant, testified that he had personally

designed and managed the system and knew video at issue to be what it was

asserted to be, and he also described the process and system by which the video

was created and testified to the accuracy of that system); but see State ex rel. J.H.,

2022-0324, pp. 12-13 (La. App. 4 Cir. 8/9/22) --- So.3d ----, ----, 2022 WL

3210100 at *6, as clarified on reh'g (8/19/22) (finding that the trial court erred in

admitting video footage and failed to lay proper foundation for authentication of

the video where the State offered no testimony from a person who maintained the

surveillance video system that recorded the video, and the chain of custody was not

established because the officer received the footage from a non-testifying third

party).

In King, 2012-1372, 119 So.3d 839, this Court held it was legal error for the

trial court to rely on evidence in an eviction proceeding that was neither

authenticated nor introduced at trial. In King, HANO filed a rule for possession

seeking to evict a public housing tenant for criminal activity, a violation of the

lease agreement. No evidence was offered by HANO at the eviction proceeding;

only argument of counsel. The record on appeal, however, included the lease

agreement and police report that lead to the tenant’s arrest. The King Court noted

while neither item was introduced at trial, the trial court relied on the police report

in evicting the tenant. This Court stated, in part:

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Despite the fact that the police report was not properly authenticated
or introduced into evidence, the transcript of the eviction trial shows
that the trial court relied on it in her decision to order the eviction of
Ms. King. It was legal error for the trial court to do so.

King, 2012-1372, p. 5, 119 So.3d at 842. The King Court therefore reversed the

judgment of eviction.

Similarly, in the present case, the videos offered by Bernadas to establish

Palmer violated the lease were neither introduced into evidence nor properly

authenticated. As such, it was error for the trial court to rely on the videos in

evicting Palmer from the premises.

However, Bernadas did provide testimony regarding the September 19, 2022

incident. Thus, arguably the trial court could have relied on Bernadas’s statements

as grounds for evicting Palmer. Nevertheless, with only the September 19, 2022

incident to consider, Bernadas did not give Palmer the requisite seven-day notice to

terminate the lease as required under the agreement.

Paragraph 20 of the lease provides:

DEFAULT. If Tenant fails to comply with any of the material
provisions of this Agreement, other than the covenant to pay rent, or
of any present rules and regulations or any that may be hereafter
prescribed by Landlord, or materially fails to comply with any duties
imposed on Tenant by statute, within seven (7) days after delivery of
verbal or written notice by Landlord specifying the non-compliance
and indicating the intention of Landlord to terminate the Lease by
reason thereof, Landlord may terminate this Agreement. If Tenant
fails to pay rent when due and the default continues for seven (7) days
thereafter, Landlord may, at Landlord’s option, declare the entire
balance of rent payable hereunder to be immediately due and payable
and may exercise any and all rights and remedies available to
Landlord at law or in equity or may immediately terminate this
Agreement. [Emphasis added].

Palmer claims that the lease required that the lessor orally or in writing

provide a seven-day notice to cure the violation before placing the lessee in default

and that Bernadas failed to provide this notice.

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Paragraph 20 of the lease does contain a cure provision. However, the cure is

only in reference to the failure of the tenant to pay rent. Here, the eviction

proceedings were not initiated for Palmer’s failure to pay rent. The rule for

possession was filed for violating the terms of the lease, specifically, the fact that

Palmer was verbally abusive, used foul language, and disrupted the building. For a

default for failure to comply with the lease provisions other than nonpayment of

rent, Paragraph 20 of the lease does not mandate a seven day curing period to stop

violating the lease. It does, however, require that the landlord provide notice to the

tenant seven days before terminating the lease.

At the hearing, Bernadas indicated that he gave verbal notification to

terminate the lease. However, the record does not indicate a specific date on which

notification was provided to Palmer. Moreover, the only admissible evidence

regarding Palmer’s alleged breach of the lease agreement occurred on September

19, 2022, and the eviction proceedings were filed the following day, September 20,

2022. As such, we find that Bernadas did not provide Palmer seven-day notice

pursuant to the lease agreement prior to termination. Accordingly, we find that the

trial court erred in evicting Palmer.

CONCLUSION

The trial court erred in finding Palmer violated the lease and rendering a

judgment of eviction based on inadmissible evidence. Moreover, Bernadas failed

to prove that he gave Palmer the requisite seven days’ notice prior to terminating

the lease regarding the September 19, 2022 incident. Accordingly, for these and the

above-stated reasons, the trial court’s September 27, 2022 judgment is reversed.

REVERSED

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