Kayla Trahan, Indiv., Etc. v. 2010 Benglis, L.L.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-365

KAYLA TRAHAN

VERSUS

2010 BEGLIS, L.L.C., PRODUCTIVE PROPERTIES, INC.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2010-005259 B
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

Cooks, J., dissents and assigns written reasons.

AFFIRMED.
Elizabeth Traub
P.O. Box 2148
Lake Charles, LA 70602-2148
(337) 439-0374
COUNSEL FOR PLAINTIFF/APPELLANT:
Kayla Trahan

Gregory L. Landry
Acadiana Legal Services Corporation
1020 Surrey Street
Lafayette, LA 70501
(337) 237-4320
COUNSEL FOR PLAINTIFF/APPELLANT:
Kayla Trahan

Lee W. Boyer
Stephen D. Polito
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P.O. Box 2900
Lake Charles, LA 70602
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
2010 Beglis, L.L.C., Productive Properties, Inc.

DECUIR, Judge.

Kayla Trahan appeals the judgment rendered against her in an eviction

proceeding brought by her landlord, Productive Properties, Inc. and 2010 Beglis,

LLC. After due consideration of the record before us, we affirm.

On September 5, 2009, Kayla Trahan signed a lease with Productive

Properties, Inc., to rent a unit at Productive’s apartment complex, Town & Country

Apartments, located in Sulphur, Louisiana. The term of the lease was set forth as

one year. Town & Country Apartments is Section 8 housing, and, as such, Trahan

was required to execute an additional lease for a term of one year with the Sulphur

Housing Authority, which was done on November 2, 2009. “Section 8” is a term

used to describe a federally funded housing program which provides vouchers for

affordable housing offered by approved landlords. The program is administered by

the United States Department of Housing and Urban Development (HUD).

The Productive lease set forth various rules and regulations which restrict

certain actions and behaviors at the complex. According to Productive, these rules

and regulations are explained to all prospective tenants when the leases are signed.

Trahan’s signature was on the rules and regulations page of her lease. The HUD

lease also contained certain terms and conditions as well as a tenancy addendum

which relates to the term of the lease and the termination of a tenant’s occupancy.

Not long after Trahan moved in to the apartment, Productive alleges, she

began committing various infractions, which among other things, included

allowing a person who was not on the lease to live with her in the apartment.

Although this was denied by Trahan, it was believed by Productive’s property

manager that this man, later identified as Trahan’s boyfriend, Beau Arabie, was

living in the apartment. Productive continued to inform Trahan that a person not

on the lease cannot live in her apartment and that a proper procedure existed for

tenants to have overnight guests. In response to a complaint from Trahan

concerning whether her apartment conformed to the Section 8 program, an

inspector for the Sulphur Housing Authority inspected Trahan’s apartment on

August 3, 2010. The property manager testified that the inspector found Trahan’s

apartment met the Section 8 requirements and confirmed that Trahan’s boyfriend

was living with her in the apartment. Arabie testified that he regularly spent as

many as three nights at a time in Trahan’s apartment. Trahan did not testify.

Productive also alleged Trahan committed various other lease infractions,

including parking additional cars not listed on the lease, bothering other tenants,

and making repeated unfounded requests for repairs. During the term of Trahan’s

lease, Productive determined that it would not renew Trahan’s lease after the initial

term. She was sent several notices informing her that the lease would not be

renewed. As the end of the lease approached, Trahan was sent two notices (the

first on October 11, 2010 by Productive’s property manager and the second on

October 22, 2010 by Productive’s legal counsel) informing her the lease was not

being renewed and that she had thirty days to vacate the premises. Trahan argued

these notices did not comply with the applicable state and federal requirements.

On October 12, 2010, Trahan filed suit against Productive requesting

declaratory judgment, specific performance, monetary damages and injunctive

relief. At the time of the filing, the trial court granted a temporary restraining

order, which was filed in conjunction with Trahan’s petition, preventing Trahan

from being evicted. At a subsequent hearing for preliminary injunction, the trial

court refused to extend the injunction preventing Productive from evicting Trahan.

The injunction was denied and the temporary restraining order was dissolved.

Thirty days after the October notices to vacate were received by Trahan,

Productive filed a Rule to Evict in city court. One day before the hearing on the

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Rule to Evict, Trahan filed an Exception of Lis Pendens. At the hearing,

Productive was granted an extension to explore a defense to the lis pendens

exception. Rather than contesting the lis pendens exception, Productive moved to

dismiss the suit in city court and, on December 15, 2010, filed a Rule to Evict in

the suit which had been instituted by Trahan in the district court.

During this time period, Trahan gave Productive three rental payments dated

October 5, November 2, and December 8, each in the amount of $13.00. The

October payment was first returned to Trahan, then later accepted and negotiated

by Productive, as it paid the October rent during which Trahan’s tenancy

continued. The November and December payments were neither deposited nor

negotiated by Productive, but were ultimately given to Productive’s counsel to

hold during the ongoing proceedings.

On December 23, 2010, the Rule to Evict came before the trial court. Before

the rule was heard, Trahan presented several exceptions and motions including an

exception of improper cumulation, an exception of no valid notice to vacate, an

exception of vagueness, and a motion to dismiss. All the exceptions were denied

by the trial court. After consideration of all the evidence, the trial court granted

Productive’s Rule to Evict and assessed court costs against Trahan. Trahan was

ordered to vacate the apartment within twenty-four (24) hours. Trahan did not

vacate, and instead filed the present appeal, asserting several assignments of error:

lis pendens, improper cumulation of actions, ineffective notices to vacate and the

acceptance of rental payments as forgiveness of the lease infractions. We find no

merit to the issues raised by Trahan; therefore, we affirm the judgment rendered

against her.

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STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s findings of fact in the

absence of manifest error or unless those findings are clearly wrong. Stobart v.

State, through Dept. of Transp. and Dev., 617 So.2d 880 (1993); Rosell v. ESCO,

549 So.2d 840 (1989). Questions of law are reviewed de novo by determining

whether the trial court was legally correct or legally incorrect. Sanchez v. La.

Nursery, 09-1247 (La.App. 3 Cir. 4/7/10), 34 So.3d 1047; Domingue v. Bodin, 08-

62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654.

LIS PENDENS

Trahan first argues the trial court erred in failing to grant her lis pendens

exception regarding the pending eviction proceeding in Sulphur City Court.

Because we have been presented with a certified copy of a December 22, 2010

judgment of dismissal of the city court action, we find no merit to this contention:

Because lis pendens does not address the merits of the disputes
between the parties, a reviewing court considers lis pendens in the
procedural and factual climate that exists at the time of review, rather
than at the time of the trial court judgment. La. Cotton Ass’n
Workers’ Compensation Group Self-Insurance Fund v. Tri-Parish Gin
Co., Inc., 624 So.2d 461 (La.App. 2nd Cir.1993). After oral
argument, Brooks, Cudd, and National filed a joint stipulation of
amicable resolution of the Orleans Parish suit which had served as the
basis for the exception of lis pendens. The stipulation included an
order of dismissal from the trial court in Orleans Parish. Sonat
contends that this court may not receive new evidence on appeal and
that the dismissal was not a part of the record and thus may not be
included in this court’s review. However, this argument is contrary to
the very nature of a lis pendens review. A review of a grant of lis
pendens requires this court to examine not only was the trial court
correct when the exception was granted, but whether the exception is
still correct at the time of appeal. See La. Cotton Ass’n supra.

Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 34,796 p. 2-3 (La.App.

2 Cir. 8/22/01), 796 So.2d 66, 68-69, writ denied, 01-2810 (La. 1/4/02), 805 So.2d

204.

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IMPROPER CUMULATION

In Trahan’s second assignment of error, she argues that it is reversible error

to cumulate a summary eviction proceeding with a pending ordinary proceeding.

This argument disregards the fact that the trial court bifurcated the proceedings and

ordered separate trials of the eviction and the issues raised in Trahan’s petition,

which are still pending and remain to be decided via ordinary process at a later

date. Therefore, we find no reversible error in the trial court’s ruling.

NOTICE TO VACATE

Trahan asserts that Productive’s notices to vacate the premises were not in

compliance with state law, federal law, and the terms of the leases she signed. The

record shows Trahan was provided with several notices throughout the term of her

lease. Most of these communications simply advised Trahan that her lease would

not be renewed at the end of its term. The notices provided to her on October 12,

2010 and October 22, 2010, however, included the grounds for her eviction and a

thirty-day time period in which to vacate the leased premises. The notices also

informed Trahan of her right to present a defense at her eviction hearing should she

fail to vacate the premises timely. Moreover, the Rule to Evict, which is an “initial

pleading used under State or local law to commence an eviction,” as defined by the

HUD lease, was sent to the Sulphur Public Housing Authority on the same day it

was served on Trahan.

The trial court considered the notices sent to Trahan and the Rule to Evict in

light of the controlling legal and contractual requirements and found all notice

requirements were satisfied. We agree with this finding. The notices were

adequate, informative, and complied with the applicable laws and lease

requirements. Trahan has presented nothing that convinces us the notices were

inadequate. She was fully informed of the reasons for non-renewal, she was given

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the appropriate time in which to vacate, and she was informed of her right to

present a defense to any subsequent eviction proceeding. Additionally, the Sulphur

Public Housing Authority was properly served with the Rule to Evict.

Louisiana’s summary eviction procedure, La.Code Civ.P. art. 4731 et seq.,

allows for the filing of a summary eviction proceeding only after the required

notice to vacate, as described in La.Code Civ.P. art. 4701, has been sent by the

owner. It also requires that notice must include the grounds upon which eviction is

sought. La.Code Civ.P. art. 4731(A).

Section 8 of the HUD-required tenancy addendum sets forth the substantive

provisions relating to the termination of tenancy, mandating that “the owner may

only terminate the tenancy in accordance with the lease and HUD requirements.”

Federal regulations require the owner to perform certain acts before attempting to

evict a tenant from federally subsidized housing. Trahan’s lease included the

following language concerning the notice requirements required under the law:

a. Notice of grounds.

(1) The Owner must give the Tenant a notice that specifies the
grounds for termination of tenancy. The notice of grounds must be
given at or before commencement of the eviction action.

(2) The notice of grounds may be included in, or may be combined
with, any Owner eviction notice to the Tenant.

b. State or local eviction notice.

(1) Owner eviction notice means a notice to vacate, or a complaint
or other initial pleading used under State or local law to commence an
eviction.

(2) The owner must give the PHA a copy of any Owner eviction
notice to the Tenant at the same time that the Owner gives notice to
the Tenant.

Productive’s notices to Trahan meet the basic requirements which govern

this lease: setting forth the grounds for eviction, providing a thirty (30) day time

period in which to vacate the premises, and informing Trahan of her right to

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present a defense at the eviction proceeding should she so choose. While the two

notices in question were not served upon the Sulphur Public Housing Authority at

the time notice was sent to Trahan, the Rule to Evict, which is the actual pleading

or complaint, was properly served. As quoted above, the term “owner eviction

notice” is defined as one of two things: It can be either a notice to vacate or “a

complaint or other initial pleading used under State or local law to commence an

eviction.” The two definitions are separate, as evidenced by the use of a comma,

and give the owner a choice. Here, Productive chose to give the Sulphur PHA a

copy of the Rule to Evict. We find this action to be in compliance with the terms

of the leases signed by Trahan.

RENTAL PAYMENTS

Trahan urges this court to find error in the trial court’s determination that

Productive did not accept Trahan’s November and December rent payments. She

argues that Productive, by holding on to her money orders, accepted the payments

and, consequently, this acceptance vitiated the notices to vacate and served as

forgiveness of the lease infractions.

Upon review of the record before us, we conclude the issue of Trahan’s

rental payments is not properly before us. Trahan failed to offer any evidence of

rental payments. She did not testify regarding the payment of rent, tender of the

payments, or her belief that Productive no longer sought to evict her based on

forgiveness of the lease infractions. Trahan did not offer into evidence any copies

or receipts for the payment of rent. The issue was raised in the trial court only in

the comments and arguments of counsel; no evidence exists for review.

Accordingly, we find no merit to the assignment of error.

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DECREE

For the above reasons, we affirm the trial court judgment against Trahan

granting the Rule to Evict and assessing her with court costs. All costs of this

appeal are assessed to Trahan.

AFFIRMED.

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