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Estates New Orleans v. McCoy

Court of Appeal of Louisiana, Fourth Circuit

March 18, 2015

THE ESTATES NEW ORLEANS
v.
BRIDGETTE MCCOY

APPEAL fro FIRST CITY COURT OF NEW ORLEANS. NO. 2014-03774, SECTION " B" . Honorable Angelique A. Reed, Judge.

Deidre K. Peterson, THE PETERSON LAW FIRM, L.L.C., New Orleans, LA COUNSEL FOR DEFENDANT/APPELLANT.

Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins. JENKINS, J., CONCURS AND ASSIGNS REASONS.

OPINION

Max N. Tobias, Jr., Judge

[2014-0933 La.App. 4 Cir. 1] The plaintiff/appellant, Bridgette McCoy (" Ms. McCoy" ),[1] suspensively appeals[2] a judgment ordering her to vacate the residential premises known as The Estates New Orleans (" The Estates" ),[3] where

Page 1180

she occupies a unit as a public housing tenant, for allegedly committing criminal acts. Because we find no proof exists that the alleged criminal acts were committed by Ms. McCoy and all criminal charges against her were dismissed, the trial court was manifestly erroneous in granting the rule for possession. For the reasons that follow, we reverse the judgment of the trial court and render judgment in Ms. McCoy's favor.

On 19 April 2014, while attending a social gathering in The Estates, Ms. McCoy and another resident, Demetria Carter (" Ms. Carter" ), had a verbal disagreement that caused Ms. McCoy to leave and return to her residential unit. [2014-0933 La.App. 4 Cir. 2] While at the gathering, Ms. McCoy had consumed some alcohol, but she testified that she was not intoxicated. Hours later, Ms. McCoy left her unit in search of her grandchildren when she was seen by Ms. Carter and a male companion, who began to " stalk" Ms. McCoy by walking closely behind her. As she was returning to her unit with the children, Ms. McCoy heard the man say, " Here, take this knife." Ms. McCoy turned around and was immediately assaulted by Ms. Carter, sustaining a laceration above her eye. Both Ms. Carter and her companion fled the scene.

The Housing Authority of New Orleans (" HANO" ) dispatched Officer Silas Phipps, Jr., to investigate the incident. He arrested both Ms. McCoy and Ms. Carter for disturbing the peace and public drunkenness. Ms. Carter subsequently pleaded guilty; the charges against Ms. McCoy were dismissed by the New Orleans Municipal Court on 6 June 2014.

On 7 May 2014, Ms. McCoy received a notice of infraction and a notice to vacate from " Estates [sic] General Manager." [4] The attorney for The Estates filed a rule for possession on 5 June 2014. The rule for possession stated that the " resident was involved in a fight on the property which is a violation of the 'One Strike Policy.'" Ms. McCoy claims that she was never apprised of her rights or given a grievance hearing prior to the rule being filed.

[2014-0933 La.App. 4 Cir. 3] The rule for possession was heard on 30 June 2014, less than a month after all charges against Ms. McCoy were dismissed. No agent for The Estates testified in this case. Officer Phipps was called to testify for The Estates, but not in the capacity as its representative. He explained that he arrived on the scene after receiving a request for assistance concerning a fight involving two females in the 3000 block of Oliver White Street. Ms. McCoy was standing in front of another officer's vehicle; Ms. Carter had allegedly retreated into her unit. After speaking with Ms. McCoy and Ms. Carter, he learned that an " incident" had occurred between the two earlier in the evening. Officer Phipps testified that because he could not determine who the primary aggressor was and because both parties were

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intoxicated and fighting, he elected to arrest them both for public intoxication and disturbing the peace. Officer Phipps claimed that Ms. McCoy had slurred speech and he could smell alcohol on her. He also stated that he was " DWI certified." In addition, he testified that Ms. McCoy was very upset at the time. After being arrested, Ms. McCoy was transported to the hospital for the laceration above her eye. The doctor advised that the laceration was consistent with a ring, not a ...


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