200 Carondelet v. Bickham

316 So.3d 955

200 CARONDELET

v.Tyrone BICKHAM

NO. 2017–CA–0328

Court of Appeal of Louisiana, Fourth Circuit.

OCTOBER 25, 2017

Jacob Kansas, LAW OFFICE OF JACOB KANSAS, 1801 Carol Sue, Gretna, LA 70054–1330, COUNSEL FOR PLAINTIFF/APPELLEE, 200 CARONDELET

Hannah Adams, SOUTHEAST LOUISIANA LEGAL SERVICES, 1010 Common Street, Suite 1400A, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLANT, TYRONE BICKHAM

(Court composed of Judge Terri F. Love, Judge Terrel J. Broussard, Pro Tempore, Judge Marion F. Edwards, Pro Tempore

Judge Terrel J. Broussard, Pro Tempore

Appellant, Tyrone Bickham, appeals the judgment of the First City Court of New Orleans signed February 2, 2017, in favor of Appellee, 200 Carondelet resulting in the eviction of Appellant. On appeal, Appellant asserts three (3) assignments of error:

1. There was insufficient proof presented by Appellee to support an eviction based upon the alleged violation of the "Drug Free/Zero Tolerance Policy" of the lease agreement;

2. The other incidents raised at the February 2 hearing were improperly admitted over the objection of counsel because only hearsay testimony was offered and Appellant was not given due process notice of the events that would be at issue; and

3. Because Appellant suffered a mental disability, First City Court erred in granting the Rule for Possession over Appellant's affirmative defense and exception for failure to accommodate his disability in violation of federal civil rights law, which were never ruled upon.¹

For reasons set forth below, we reverse the city court's judgment. We find the city court was clearly wrong in finding that there was a violation of the lease. Appellee failed to provide sufficient evidence that there was a breach of the lease agreement by Appellant. Further, we find that the process implemented by Appellee was flawed and violated Appellant's right to due process. Although Appellant's mental disability raises questions of Appellee's failure to accommodate the Appellant's incapacitating condition pursuant to state and federal statutes, that issue is rendered moot since we find the other two assigned errors have merit; thus, the discussion of assigned error three is pretermitted.

FACTUAL AND PROCEDURAL BACKGROUND:

Appellant suffered a mental disability. He lived at 200 Carondelet St., Apt. 501, located in New Orleans, Louisiana. 200 Carondelet was an apartment complex that housed low income tenants; the complex was considered as a low-income tax credit property. Although the Appellant was the signator on the lease in question, the lease was subject to addenda, which included compliance with the low income federal tax credit program under Section 42 of the Internal Revenue Code of 1886 as amended. Such leases are subject to the provisions of the Fair Housing Act, 26 U.S.C. section 42 et seq.

Although Appellant suffered from a mental disability, he entered a lease agreement with Appellee on his own. The lease agreement had a termination date of January 31, 2017, and was renewed on a month to month basis thereafter. An addendum to the lease agreement was a "Drug Free/Zero Tolerance Policy" signed by Appellant in February 2014. The first paragraph of the addendum provided a resident shall not engage in drug related criminal activity on or near the premises. Drug related criminal activity was defined as the "illegal manufacture, sale, distribution, use or possession with intent to distribute or use of controlled substance on or near premises. (As defined in section 102 of the Controlled Substances Act ( 21 U.S.C. 802 )."

On November 22, 2016, Appellee issued to Appellant a "Thirty Day Notice" demanding repossession of the premises on the ground Appellant contravened his lease by violating the drug free policy. Following, Appellee filed in the trial court a "Rule for Possession of Premises" and alleged Appellant was in violation of his lease because he was using and selling drugs on multiple occasions on the property.²

In response, Appellant, through his attorney, filed "Exceptions, Answer and Affirmative Defenses to Rule for Possession of Premises." Appellant alleged an exception of vagueness or ambiguity pursuant to La.Code Civ.P. art. 926(A)(5) based on the general allegations that he used and sold drugs on multiple occasions. Additionally, Appellant alleged the rule for possession was premature as Appellant failed to issue a cease and desist notice, and allow for an adjustment or abatement of the conduct pursuant to the lease agreement and its addenda. As an affirmative defense, Appellant denied using or selling drugs on the premises. Furthermore, he asserted, under the Federal Fair Housing Act, the lessor was required to make an adjustment to a normal rule or policy for a person with a disability to ensure equal access to housing citing 28 U.S.C. § 3604(f) (2012). Appellant requested his landlord contact his mother, Denise Jenkins, when any issues arose with his tenancy as a reasonable accommodation for his mental disability. Following, on January 2, 2017, Appellant submitted a letter to Appellee requesting a stay of the eviction and to consult with Ms. Jenkins who was represented as attorney in fact for her son pursuant to a power of attorney.

A hearing was held on January 12, 2017. The trial court granted Appellant's exception of vagueness and ambiguity, and the matter was continued. Another hearing was held on February 2, 2017. At the conclusion of that hearing, the city court ruled: "In light of Mr. Bickham's disability and his request, whether that be in writing or just a habit that had formed over four years of time, ... I'm going to evict, but I'm going to give him until February 16th at 3 p.m."

STANDARD OF REVIEW/BURDEN OF PROOF:

A trial court's ruling on an eviction proceeding is subject to a clearly "wrong/manifestly erroneous" standard of review on appeal. Bridges v. Anderson , 16-0432, pp. 3-4 (La.App. 4 Cir. 12/7/16), 204 So.3d 1079, 1081, writ denied , 17-0194 (La. 3/24/17), 216 So.3d 817 (quoting Housing Authority of New Orleans v. Haynes , 14-1349, p. 16 (La.App. 4 Cir. 5/13/15), 172 So.3d 91, 99.) However, if the trial court makes one or more prejudicial legal errors that poisoned the fact-finding process which produced an erroneous result, then, a manifestly erroneous judgment must be reviewed under the de novo standard. Housing Authority of New Orleans v. King , 12-1372, p. 5 (La.App. 4 Cir. 6/12/13), 119 So.3d 839, 842. "[W]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). If there are two permissible views of the evidence, "the factfinder's choice between them cannot be manifestly wrong." Id. at 844 (citations omitted).

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. Guste Homes Resident Mgmt. Corp. v. Thomas, 12-0386, p. 8 (La.App. 4 Cir. 5/29/13), 116 So.3d 987, 991.

ASSIGNMENT OF ERROR NO. 1:

We find no violation of the drug free/zero tolerance policy.

Appellant does not challenge the validity of the lease, and he does not contest the credibility of witnesses or evidentiary determinations regarding the violations of the drug free provisions of the lease agreement. He argues that Appellee presented insufficient legal proof that he violated the lease by using or selling illegal drugs on the premises. Since Appellant does contest the credibility findings of the city court, a de novo review of this assigned error is appropriate.

We find Appellee failed to prove by a preponderance of the evidence that Appellant used or sold illegal drugs in violation of the lease agreement.

Ceon Rob'ert, a manager for 200 Carondelet from 2014 to 2016 testified that Appellant admitted to her that he smoked marijuana, but Appellant stated he never used drugs on the property.

Angelina Reed a tenant at 200 Carondelet, testified she knew Appellant, as they resided on the same floor. She recalled that on May 24, 2016, she was walking her dogs from Carondelet Street to Common Street and she saw Appellant exchanging money for "large, white, round pills" in a Ziploc bag with "some kind of guy, a random guy." On cross-examination, Ms. Reed admitted she was not certain if the drugs were illegal.³ She did not give a background of drug use or experience identifying illegal drugs.

Appellant testified he showed the white pills, in the plastic bag, to James who lived on the 8th floor.⁴ Appellant stated the pills were his medication given to him by the hospital. Appellant's mother confirmed Appellant took prescription medicine which included Tylenol 3—an oval-shaped white pill, folic acid —a white small pill, and penicillin —a yellow pill. James was not called to testify, and no testimony was given to rebut that the pills in the plastic bag were Appellant's medication from the hospital.

Another incident alleged by Appellee involved a letter where Appellant supposedly admitted giving a pill to a security guard in exchange for money. Appellee lost the letter so it could not be admitted into evidence. The city court held that any testimony regarding the contents of the letter was inadmissible, but it allowed testimony surrounding the circumstances of the letter.

Brittney Freeman, the leasing agent for Appellee, testified she was given a letter by April Recurt, assistant leasing agent for Appellee. The letter was retrieved from a lockbox kept in the lobby of the complex for tenants to drop off their rent payments. Ms. Freeman read the letter and recalled it stated Appellant gave pills to the security guard, the security guard did not pay, and Appellant wanted his money. Both Ms. Freeman and Ms. Recurt testified Appellant admitted, in their presence, writing a letter...