CP Commercial Properties, LLC v. Latasha Sherman

Judgment rendered April 14, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,897-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

CP COMMERCIAL Plaintiff-Appellee
PROPERTIES, LLC

versus

LATASHA SHERMAN Defendant-Appellant

*****

Appealed from the
Shreveport City Court for the
Parish of Caddo, Louisiana
Trial Court No. 2020E03758

Honorable John Marion Robinson (Pro Tempore), Judge

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LEGAL AID OF NORTH LOUISIANA Counsel for Appellant
By: Terri Anderson-Scott

WINCHELL & JOSEPH, LLC Counsel for Appellees
By: Mary Ellen Winchell CP Commercial Properties,
Mackey Lane Properties,
LLC, and Karen Johnson

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Before COX, THOMPSON, and ROBINSON, JJ.

ROBINSON, J.

Latasha Sherman appeals a judgment ordering her eviction. We

affirm the judgment.

FACTS

Mackey Lane Properties, LLC, owns a residence (“premises”) located

at 2838 Mackey Lane in Shreveport. CP Commercial Properties, LLC, is the

management company for Mackey Lane. Karen Johnson is the agent for

Mackey Lane as well as the property manager for the premises.

On April 2, 2017, Sherman signed a lease for the premises. The term

of the lease was from May 1, 2017, to midnight on April 30, 2019. The

lease provided that it would be converted to a month-to-month lease if

Sherman remained in possession of the premises after the original term

expired. Under those circumstances, the lease would be terminated by either

party providing written notice of 15 days.

Believing that the lease expired on April 30, 2019, Johnson began

eviction proceedings in August of 2019. However, the trial judge presiding

over that matter ruled on August 26 that based upon conversations between

Johnson and Sherman, there was a one-year lease in existence from May

until April. The judge also found there was no violation of the lease terms

by Sherman. The eviction was denied.

By letter dated March 16, 2020, Johnson wrote to Sherman that she

did not intend to renew the lease when it expired on April 30, 2020.

Sherman was asked to vacate the premises no later than 5:00 p.m. on April

30, 2020. The August 26 ruling was referred to in the letter. This letter was

delivered to Sherman on March 18.

By letter dated April 29, 2020, Johnson wrote to Sherman that per the

March 16 letter, she did not intend to enter into another one-year lease with

Sherman. However, recognizing that Sherman might have difficulty finding

another place to live because of Louisiana’s “stay at home order” and the

general state of affairs, Johnson offered to continue the lease on a month-to-

month basis beginning on May 1.

By letter dated July 14, 2020, Johnson wrote to Sherman that she was

giving 30-day notice for the lease to end on August 31, 2020. Johnson wrote

that she was instructing the Housing Authority that no payment for

September should be remitted since the lease will end on August 31.

However, if Sherman sent a payment, it would apply to the balance that she

owed for repairs previously billed to her. The letter was delivered to

Sherman on July 25, 2020.

On August 6, 2020, Mackey Lane filed a petition to evict Sherman on

the basis that she had violated terms of the lease regarding payment for

plumbing repairs, having a pet on the premises, and failing to maintain the

premises. The notice to vacate the premises because of these alleged

violations was apparently received by Sherman on July 8 and July 27. A

hearing was held on August 17, 2020. A different trial judge than the one

who presided over the 2019 hearing denied relief because Johnson failed to

establish the alleged defaults.

On September 1, 2020, CP Commercial Properties filed a petition for

eviction against Sherman. The petition alleged that the term of the lease had

expired and Sherman had been given sufficient notice that the owner did not

want to continue the lease. The petition also alleged that notice to vacate

was given on July 23, 2020.
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Sherman filed an answer and affirmative defenses. She denied that a

notice to vacate was given to her on July 23, 2020. She asserted that

acceptance of the August rent vitiated the notice to vacate and reinstated the

lease for another month. She further asserted that the notice was not timely

or proper, and it was not predicated upon any of the permissible reasons for

termination of a Section 8 tenant. Finally, she contended that the eviction

was in retaliation for three earlier failed attempts to evict her and for her

complaints to the City of Shreveport concerning property standards

violations.

A hearing on the petition was held on September 9, 2020. A trial

judge who had not presided over the two prior hearings rejected the

affirmative defenses and entered a judgment of eviction on that date.

Sherman has appealed. She argues that the trial court erred in evicting her

because: (i) there were inconsistencies concerning the date the notice to

vacate was allegedly given to Sherman; (ii) acceptance of rent in August

vitiated the alleged notice to vacate; (iii) the notice to vacate was not timely

or proper; (iv) Sherman was not given proper notice of termination as

required by federal law; and (v) the eviction was done in retaliation.

DISCUSSION

Date of notice

The petition for eviction listed July 23 as the date that the July 14

notice of termination was received by Sherman. However, July 23 was the

date the notice was mailed. Sherman maintains that because of this error,

the basic requirements of due process were not satisfied.

The certified mail receipt shows that Sherman signed for the notice on

July 25. Sherman contended that it was not her signature. Nevertheless, the
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July 14 was letter was filed into evidence at the August 17 hearing by

Sherman, so she clearly came into possession of it. Sherman suffered no

prejudice because the petition listed the incorrect date that notice was

received.

Compliance with La. C.C. art. 2728(2)

Sherman contends that notice was neither timely nor proper under La.

C.C. art. 2728(2), which required notice of termination ten calendar days

before the end of the month. The court found that notice was proper.

Notice was given more than ten calendar days before the lease was to

terminate at the end of August.

Sherman was not entitled to additional notice merely because Johnson

sought termination on other grounds in a separate proceeding after she

received the July 14 notice. The July 14 notice did not serve as the basis for

the August 17 hearing, which concerned alleged violations of the lease.

The terminations were sought on entirely different grounds.

Acceptance of rental payment

Sherman asserts that the acceptance of the rent for August vitiated the

July 14 notice. When a rental payment is accepted after notice to vacate has

been given, the notice is vitiated and the tenant’s possession is maintained.

Housing Authority of Town of Lake Providence v. Allen, 486 So. 2d 1064

(La. App. 2 Cir. 1986). However, this case does not involve a notice to

vacate that is premised on the nonpayment of rent or other breach of the

lease conditions. Rather, eviction is being sought because the term of

occupancy has come to an end and Johnson no longer wants Sherman as a

tenant. Moreover, the rent that was accepted was for the remaining month of

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occupancy, August. Rent was not accepted for the month following the

month of termination.

CARES Act

Sherman maintains that she was not given proper notice of

termination as required by federal law for Section 8 tenants. However, her

argument is largely centered on the application of Section 4024(c) of the

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.1 This

Section imposed a temporary moratorium on certain eviction filings. In

particular, it states:

(b) MORATORIUM.—During the 120-day period
beginning on the date of enactment of this Act, the lessor
of a covered dwelling may not— (1) make, or cause to be
made, any filing with the court of jurisdiction to initiate a
legal action to recover possession of the covered dwelling
from the tenant for nonpayment of rent or other fees or
charges; or (2) charge fees, penalties, or other charges to
the tenant related to such nonpayment of rent.

(c) NOTICE.—The lessor of a covered dwelling unit— (1)
may not require the tenant to vacate the covered
dwelling unit before the date that is 30 days after the
date on which the lessor provides the tenant with a notice to
vacate; and (2) may not issue a notice to vacate under
paragraph (1) until after the expiration of the period
described in subsection (b).

Paragraph (c) sets forth when notice to vacate may be sent following

the moratorium stated in paragraph (b). However, that moratorium is not

even applicable in this matter as it applies to “legal action to recover

possession of the covered dwelling from the tenant for nonpayment of rent

or other fees or charges[.]” The eviction at issue is premised upon the

ending of the lease period.

1
Pub. L. No. 116-136, 134 Stat. 281, 492-4 (2020).
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Retaliation

Sherman is operating under the belief that she is being evicted in

retaliation for her successful defenses against three prior eviction attempts,

as well as a complaint she had filed in June with the City of Shreveport

concerning Johnson’s failure to cut the grass. The trial court found that

Sherman failed to meet her burden of proving this affirmative defense. We

find no error in the trial court’s decision to reject this affirmative defense or

any of the other affirmative defenses that Sherman raised.

CONCLUSION

For the foregoing reasons, we conclude that Sherman’s arguments on

appeal are entirely without merit. Sherman, who proceeded in forma

pauperis in this appeal, is to pay appeal costs to the extent permitted by La.

C.C.P. art. 5188. The judgment is AFFIRMED.

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