Lucy R. Romero, Exe of Estate of D. Romero v. Clayton Cola, Sr. and Anna Cola

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1058

LUCY R. ROMERO, EXECUTRIX OF THE
ESTATE OF DORPHY ROMERO

VERSUS

CLAYTON COLA, SR. AND ANNA COLA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2014-5793
HONORABLE JULES D. EDWARDS, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, Elizabeth A. Pickett,
Billy H. Ezell, and Phyllis M. Keaty, Judges.

Cooks, J., dissents and assigns written reasons.

REVERSED AND RENDERED.

William A. Repaske
Landry, Watkins, Repaske & Breaux
Post Office Drawer 12040
New Iberia, Louisiana 70560-2040
(337) 364-7626
COUNSEL FOR PLAINTIFF/APPELLANT:
Lucy R. Romero, Individually and as Executrix of the Estate of Dorphy Romero

Clayton Cola, Sr.
Anna Cola
In Proper Persons
1405 Martin Luther King, Apartment 21
St. Martinville, Louisiana 70582
(337) 714-9270
Defendants/Appellees:
Clayton Cola, Sr.
Anna Cola

KEATY, Judge.

The plaintiff appeals a judgment denying her request for damages against the

defendants for past due rent, damages to the premises, and reimbursement of utility

bills. For the following reasons, we reverse and render.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Lucy R. Romero, individually, and as executrix of the estate of

Dorphy Adam Romero, (hereafter “Ms. Romero”) filed a Petition for Monies Due

and for Damages against the defendants, Clayton Cola, Sr., and Anna Cola

(hereafter “the Colas”) on November 17, 2014. Therein she claimed to be the

owner of immovable property located at 834 Heart D Farm Road in Youngsville,

Louisiana, (hereafter “the property”) which had been leased to the Colas “prior to

1999.” Ms. Romero claimed that pursuant to the lease, the Colas agreed to pay

monthly rent of $600.00 and to be responsible for paying utilities. At the time the

petition was filed, Ms. Romero asserted that the Colas were in arrears of over

$18,000.00 in past due rent. According to Ms. Romero, the last payment that the

Colas made to her was on May 10, 2014, in the amount of $300.00, in partial

payment of the rent due in February 2008. Ms. Romero further claimed that the

Colas had failed to pay the monthly utility bills when they became due and that she

had paid those bills to prevent the property from deteriorating. Ms. Romero

submitted that when the Colas vacated the premises on May 14, 2014, she

discovered that the Colas had failed to properly maintain the property and had left

it “in a dilapidated and trash strewn condition.” As a result, Ms. Romero claimed

that the Colas were liable to her for past due rent, reimbursement of the utility bills

that she paid on their behalf during the lease term, and damages to the premises.

The Colas answered the petition, in proper person, admitting that the lease

agreement made them responsible for paying utilities and that they vacated the

premises on May 14, 2014. The matter proceeded to a bench trial on July 13, 2015,

following which the trial court rendered oral reasons for judgment, finding that

Ms. Romero had not met her burden of proof and, thus, denying her request for

damages.

Ms. Romero now appeals, asserting that the trial court erred: 1) in holding

that she did not sustain her burden of proving the amount of monthly rent due; 2)

in failing to determine the amount of rent due; and, 3) in casting all costs of court

upon Ms. Romero. The Colas did not file an appellee brief.

DISCUSSION

“Appellate review of a question of law is simply a decision as
to whether the trial court’s decision is legally correct or incorrect.”
Dugan v. Gen. Servs. Co., 01-511, p. 3 (La.App. 3 Cir. 10/31/01), 799
So.2d 760, 763, writ denied, 01-3327 (La.3/15/02), 811 So.2d 942.
When a “trial court’s decision was based on its erroneous application
of law . . . its decision is not entitled to deference by the reviewing
court.” Id. When an appellate court finds a reversible error of law,
the appellate court “must redetermine the facts de novo from the
entire record and render a judgment on the merits.” Id.

Findings of fact are reviewed under the manifest error rule.
Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123. When
the review of factual findings of the trial court are at issue, the
following two-part analysis applies in order to reverse the fact finder’s
determinations: (1) a reasonable factual basis must not exist in the
record for the finding of the trial court and (2) the record must
establish that the finding is manifestly erroneous or clearly wrong. Id.
Great deference is given to the trial court’s determination of the
credibility of witnesses, except where “documents or other objective
evidence so contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a reasonable
finder of fact would not credit the witness’s story.” Rosell v. ESCO,
549 So.2d 840, 844-45 (La.1989).

Harruff v. King, 13-940, pp. 4-5 (La.App. 3 Cir. 5/14/14), 139 So.3d 1062, 1066,

writ denied, 14-1685 (La. 11/7/14), 152 So.3d 176.

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Louisiana Civil Code Article 2682 provides that “[t]he lessor is bound: (1)

To deliver the thing to the lessee; (2) To maintain the thing in a condition suitable

for the purpose of which it was leased; and (3) To protect the lessee’s peaceful

possession for the duration of the lease. Conversely, La.Civ.Code art. 2683

provides, in pertinent part, that “[t]he lessee is bound: (1) To pay the rent in

accordance with the agreed terms; (2) To use the thing as a prudent administrator

and in accordance with the purpose for which it was leased; and (3) To return the

thing at the end of the lease in a condition that is the same as it was when the thing

was delivered to him, except for normal wear and tear or as otherwise provided

hereafter.

In its oral reasons for judgment, the trial court noted:

This is a civil case. The plaintiff has the burden of proving each
of her claims, and unfortunately, I don’t believe she did. I don’t
believe there is sufficient evidence for me to be convinced that Ms.
Lucy Romero was the person who negotiated with the Colas the terms
of this lease. So I don’t know whether or not she is telling me
something that she knows, in terms of the amount of the lease, or
whether she’s telling me something that her husband told her.

With regard to the agreement, or purported agreement that the
defendants would be responsible to pay all of the utility service, the
defendants[’] answer agrees to that, admits to paragraph 6. So the
defendant has said that she was responsible-- or she and Mr. Cola
were responsible for paying the rent. I’m sorry, the utility bills.

However, there is no way for me to ascertain from these
documents which Ms. Romero has provided me with utility bills that
total $11,114.01. There is no way I can determine which, if any, of
these were not paid by the defendants.

Finally, with regard to the damages, the plaintiffs have not been
able to convince me that the damage, whatever the damage is that’s
complained of because I’m not sure what that damage is, but in any
event, I’m not convinced that it was anything more than normal wear
and tear.

There is no sufficient evidence to support the plaintiff’s claim.
Judgment for the defense. . . .

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Amount of Monthly Rent

In her first assignment of error, Ms. Romero contends that the trial court

erred in holding that she did not sustain her burden of proving that the rent for the

property was $600.00 per month. She submits that because the Colas failed to

respond to requests for admission that were properly served upon them, the fact of

the property’s rental rate of $600.00 per month should be deemed admitted.

Ms. Romero testified at trial that her husband died in 1999 and that the Colas

began renting the property before that time pursuant to an oral lease. According to

Ms. Romero, the rent had always been set at $600.00 per month. In conjunction

with her testimony, counsel for Ms. Romero offered into evidence Exhibit P-1, in

globo, which contained copies of “Request[s] for Admission, Interrogatories and

Requests for Production” that were propounded upon Mr. and Ms. Cola, along with

the certified mail receipts indicating that they were received by Danielle Cola.

According to an USPS Tracking notice contained in this exhibit, the discovery was

delivered on December 23. 2014. A return receipt shows that the mail was

received by Danielle Cola, whom Ms. Romero identified as the Colas’ oldest

daughter. When offering Exhibit P-1 into evidence, Ms. Romero’s counsel told the

trial court that “no responses were made” to the discovery. He then remarked:

“There’s not much I can do about the request for production and the interrogatories

but unanswered requests for admissions are deemed admitted.” Counsel further

noted that he sent a letter to the Colas scheduling a Rule 10.1 conference, but got

no response from them. When the trial court asked whether Ms. Cola had any

objection to Exhibit P-1 being introduced into evidence, she replied that she

“received and filled out information and sent it back to them – to him, to the

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office.” Thereafter, the trial court noted that Exhibit P-1 was “[a]dmitted without

objection.”

The following Requests for Admission were propounded on the Colas:

REQUEST FOR ADMISSION NO. 1:

Please admit or deny that you were leasing from Dorphy
Romero and/or Lucy Romero the property located at 834 Heart D
Farm Road, Youngsville, Louisiana, during the time period January 1,
2000 to May 14, 2014.

REQUEST FOR ADMISSION NO. 2:

Please admit or deny that the monthly rental on the property
located at 834 Heart D Farm Road, Youngsville, Louisiana, was
$600.00 per month.

REQUEST FOR ADMISSION NO. 3:

Please admit or deny that in addition to payment of rent, you
were obligated to pay for utilities while you were leasing the property
located at 834 Heart D Farm Road, Youngsville, Louisiana.

REQUEST FOR ADMISSION NO. 4:

Please admit or deny that all of the rent due for your lease of
834 Heart D Farm Road, Youngsville, Louisiana, has not been paid.

REQUEST FOR ADMISSION NO. 5:

Please admit or deny that all of the utility expenses you
incurred for your lease of 834 Heart D Farm Road, Youngsville,
Louisiana, have not been paid.

In Dan-Cin Construction Co. v. Thrasher, 08-1552, pp. 4-5 (La.App. 1 Cir.

2/13/09), 9 So.3d 205, 208, the first circuit held:

[P]ursuant to the Louisiana Code of Civil Procedure, a party may
serve upon any other party a written request for the admission of the
truth of any relevant matters of fact. See LSA–C.C.P. art. 1466.
Generally, the matter is deemed admitted if the party to whom the
request is directed does not respond within fifteen days after service
of the request. LSA–C.C.P. art. 1467. Any matter deemed admitted
under Article 1467 is conclusively established unless the court, on
motion, permits withdrawal or amendment of the admission. LSA-
C.C.P. art. 1468. . . .

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Generally, the courts have given full effect to Articles 1467 and
1468 when there has been a total lack of response to requests for
admissions.

The Dan-Cin court further held that:

Because of the very clear language of LSA-C.C.P. arts. 1467 and
1468 and because Dan-Cin failed to file any response to the requests
for admission or to seek to withdraw or amend the admissions, the
trial court correctly deemed the requests for admission admitted and
conclusively established as facts for the purposes of this litigation.

Id. at 209.

In this case, the trial court should have “deemed the requests for admission

admitted and conclusively established as facts for the purposes of this litigation” or

it should have explained why it failed to do so. Id. For example, if the trial court

was making a credibility call based on Ms. Cola’s testimony that she had received

and responded to the discovery propounded upon her and her husband, or that it

was treating that testimony as an opposition to the requests being deemed admitted,

it should have clearly stated as much. Because it failed to do so, we have no other

choice but to conclude that the trial court committed an error of law in not deeming

as admitted for purposes of this litigation that the rent on the property was $600.00

per month.

Total Amount of Rent Due

In her second assignment of error, Ms. Romero claims that the trial court

erred in failing to determine the amount of rent due her from the Colas. According

to Ms. Romero, the receipts she submitted into evidence as Exhibit P-3, which

were admitted without objection, reflect that the last payment that she received

from the Colas was made in April 2014 and was credited toward a partial payment

of the February 2008 rent. Therefore, she submits that the trial court should have

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ordered the Colas to pay her $45,300.00 for the seventy-five and one-half months

of back rent that they owed. In support of her argument, Ms. Romero points out

that Ms. Cola testified that she and her husband had, at times, “fell short” on their

rent.

Although the Colas did not file an appellee brief, Ms. Cola did dispute the

plaintiff’s claims at trial. Ms. Cola testified that the real reason Ms. Romero

sought to evict her family was because Ms. Romero’s grandson wanted to move

onto the property. She challenged the information on the receipts offered into

evidence by Ms. Romero, claiming that they failed to note items that she disputed

and things that she and Ms. Romero had verbally agreed to during their frequent

conversations when Ms. Romero visited the property. According to Ms. Cola, her

family was “up-to-date” on their rent when Ms. Romero sought to evict them.

Moreover, she denied that they had ever owed back rent in the amount of

$18,000.00 as claimed in the petition for damages. Ms. Cola stated that her family

properly maintained the property. More specifically, she testified that they had

changed the water heater and replaced the floors in the kitchen, dining room, and

one of the bedrooms. Ms. Cola explained that Ms. Romero had agreed to deduct

the costs of those items from their rent, but that no such deductions were noted in

the evidence submitted by Ms. Romero.

Significantly, Ms. Romero has not assigned as error the trial court’s failure

to award her damages representing the amount of unpaid utilities she initially

claimed to have been owed by the Colas. Therefore, we attach no significance to

the fact that the Colas admitted that they had agreed to be responsible for paying

the utilities incurred. Likewise, Ms. Romero has not assigned as error on appeal

the fact that the trial court failed to award her damages that she claimed the Colas

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owed her for improperly maintaining the property during the time of the lease

and/or for leaving the property in poor condition when they vacated the premises in

May 2014.

The back rent sought by Ms. Romero can be properly classified as an item of

special damages. In Lobell v. Rosenberg, 14-60, pp. 7-8 (La.App. 4 Cir. 1/27/16),

__ So.3d __, __ (citations omitted), the fourth circuit noted:

Unlike general damages, which are not susceptible to exact
pecuniary determination, special damages are those that have a ready
market value, so that the amount of damages theoretically may be
determined with relative certainty. A plaintiff is required to prove
special damages by a preponderance of the evidence. . . . An
appellate court, in reviewing a trier of fact’s conclusions with regards
to special damages, must satisfy a two-step process based on the
record as a whole: there must be a reasonable factual basis for the trial
court’s conclusions, and the finding must not be clearly wrong. The
contours of this test provide “that a reviewing court must do more
than simply review the record for some evidence which supports or
controverts the trial court’s finding.” Lobell, 15-0247, p. 6, ––– So.3d
at –––, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The
reviewing court, accordingly, “must review the record in its entirety to
determine whether the trial court’s finding was clearly wrong or
manifestly erroneous.” Id.

Ms. Romero had the burden of proving the amount of rent she was owed by

a preponderance of the evidence. It was not enough for her to simply rely on the

deemed admitted requests for admission as proof that the Colas owed a set amount

of past-due rent. Exhibit P-3, which the trial court accepted without opposition,

consisted of three receipt books that Ms. Romero claimed to have used to record

and document the payments given to her by the Colas: the first receipt book was

dated 9/28/07 – 5/16/09; the second was dated 1/29/10 – 2/23/11; and the third was

dated 3/9/11 – 4/26/14. Ms. Romero indicated on some of the receipts that the

cash given to her by the Colas was being credited for rent due as far back as in July

2004. However, no evidence was presented to conclusively prove when the Colas

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first began renting the property, and Ms. Romero did not introduce receipts to

document any of the rent payments made by the Colas prior to September 28, 2007.

Further, while both Ms. Romero and Ms. Cola testified that there was a period of

time when the Colas vacated the property before renting it again, there was no

evidence given to establish the exact dates of that break in the lease. Given those

evidentiary issues, we have calculated how much the Colas paid in rent with

reference to the receipts kept by Ms. Romero, simply attributing the amount paid to

the rent owed the month that payment was made and keeping a running total of any

shortfall and/or credit balances that resulted. For example, the first receipt kept by

Ms. Romero was dated September 28, 2007, showing a payment of $195.00, and

the second receipt was also dated September 28, 2007, showing a payment of

$5.00. Thus, we attributed $200.00 to the September 2007 rent owed by the Colas,

which left a shortfall of $400.00 for that month. The receipts in evidence reflected

a shortfall of $10,583.49 and a credit balance of $2,883.99. When those amounts

are offset, we arrive at a total of $7,699.50 which represents the amount of rent the

Colas owed to Ms. Romero at the time they vacated the property. The trial court

manifestly erred in failing to award Ms. Romero this amount which the evidence

supported as being owed to her by the Colas. Accordingly, we will render

judgment against Mr. and Ms. Cola and in favor of Ms. Romero in the amount of

$7,699.50.

Court Costs

In her third assignment of error, Ms. Romero prays that should this court

reverse the trial court judgment and render judgment in her favor, we should

reassess all court costs to the Colas. Because we have granted Ms. Romero the

relief that she requests, we hereby reverse the trial court’s assessment of court

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costs against her and instead assess the costs of trial against the Colas. See

La.Code Civ.P. art. 1920.

DECREE

For the forgoing reasons, the trial court judgment denying Lucy R. Romero’s

request for damages is reversed, and judgment is rendered against Clayton Cola,

Sr., and Anna Cola. in favor of Lucy R. Romero in the amount of $7,699.50 plus

all costs associated with the trial of this matter. All costs of this appeal are

assessed against Clayton Cola, Sr., and Anna Cola.

REVERSED AND RENDERED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1058

LUCY R. ROMERO, EXECUTRIX OF THE
ESTATE OF DORPHY ROMERO

VERSUS

CLAYTON COLA, SR. AND ANN COLA

COOKS, J., dissenting.

I dissent from the majority’s decision to reverse the trial court’s judgment.

The trial court was correct in finding Plaintiff failed to meet her burden of proof on

her respective claims, and I would affirm the judgment in its entirety.

As to the finding that the trial court committed an error of law in not

deeming admitted for purposes of this litigation that the rent on the property was

$600.00 per month due to Defendants’ purported failure to respond to requests for

admission, I disagree for several reasons. First, Ms. Cola testified to the trial court

that she did receive and fill out the information requested by Plaintiff. The trial

court admitted the Exhibit, but was certainly not bound by the proposed admissions

in the exhibit prepared by Plaintiff. This court in D.H. Holmes Co., Ltd. v. Dronet,

432 So.2d 1135 (La.App. 3 Cir. 1983), addressed a similar situation where a

defendant did not specifically answer the request for admissions, but did deny

owing any debt by his answer to the plaintiff’s suit for breach of contract. We

stated:

In our view, failure to answer under Article 1467 does not per se
result in requests for admissions being deemed an admission of the
facts sought to be established. This device should not be applied to a
controverted legal issue which goes to the heart of the merits of a
case. In this instance, defendant denied he owed any debt to
[plaintiff] by his . . . answer to [plaintiff’s] petition. It was then

[plaintiff’s] burden to prove each element of its claim. Entron, Inc. v.
Callais Cablevision, Inc., 307 So.2d 787 (La.App. 1st Cir.1975).

A similar situation occurred here. While the Colas may not have specifically

answered the requests for admissions, they denied owing any past due rent to Ms.

Romero in the answer to her petition. Thus, I do not agree that article 1467 should

be interpreted to result in the request for admissions by Ms. Romero being deemed

an admission of facts sought to be established.

Further, any admission for purposes of this litigation that the rent on the

property was $600.00 per month is irrelevant to the trial court’s finding that

Plaintiff failed to meet her burden of proving how much, if any, rent was not paid

by the Colas. The majority opinion specifically states “Ms. Romero had the

burden of proving the amount of rent she was owed by a preponderance of the

evidence.” The only purported evidence in the record were receipts prepared and

submitted into the record by Plaintiff. Ms. Cola adamantly disputed any assertion

that her family was not up to date on the rent. It is difficult to accept the premise

that Plaintiff would allow the Colas to continue residing on the property if they

owed over six years of past due rent, as Plaintiff claimed. The trial court clearly

found the self-serving receipts provided by Plaintiff did not satisfy her burden.

This was certainly a reasonable conclusion and cannot remotely be construed as

clearly wrong. The trial court’s judgment was correct and should be affirmed.