APPEAL FROM FIRST CITY COURT OF NEW ORLEANS. NO. 2014-04796, SECTION " D" . Ernestine L Anderson-Trahan.
Nicolas S. Lindner, Robert Charles Jenkins, Jr., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
Ivy Wang, David H. Williams, SOUTHEAST LOUISIANA LEGAL SERVICES, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins). TOBIAS, J., CONCURS AND ASSIGNS REASONS.
4 Cir. 1] Edwin A. Lombard, Judge
The defendant/appellant, Cynthia Haynes, seeks review by devolutive appeal of the judgment in favor of plaintiff/appellee, Housing Authority of New Orleans (HANO), evicting her from her apartment at 1301 Simon Bolivar, Apartment 1227. After review of the record in light of the applicable law and arguments of the parties, we find that the evidence does not support the judgment granting HANO's rule for possession and, accordingly, the judgment is reversed.
Relevant Facts and Procedural History
Ms. Haynes' daughter, Nicole, was arrested at her mother's apartment on March 31, 2014, shortly after signing in on the visitor log of the housing complex. On July 1, 2014, Ms. Haynes was notified by letter dated June 27, 2014, under the letterhead of Robert Jenkins, attorney at law, and signed by Mr. Jenkins, stating that she must deliver possession of her apartment which she occupied " as Guste Homes Resident Management Corporation's (GHRMC) tenant" by July 4, 2014, at 4 p.m. The letter stated that the eviction was based on Ms. Haynes' violation of two provisions of her lease agreement, paragraphs IX(A)(4) and XIV(10(C), which provided:
[2014-1349 La.App. 4');">1349 La.App. 4 Cir. 2] Resident shall be obligated to: not to harbor and/or provide shelter to persons previously evicted for One Strike Violations, to persons fleeing arrests, prosecution and/or confinement for violation of applicable State and Federal laws.
If a member of the household is: harboring or providing shelter to a previous Resident evicted for a One Strike violation, and / or for anyone fleeing from arrest, prosecution, and / or confinement.
The notification letter further stated that:
According to Guste Homes Resident Management Security Incident [sic], on March 31, 2014, around 7:15 p.m. Ms. Nicole Hayes [sic] entered the Guste Homes building and went to apartment 1227 where her mother (Cynthia Hayes [sic]) lives. Lieutenant Allen along with Officer Pollard and another officer went to the 12th floor. Lt. Allen knocked on apartment 1227 and asked Ms. Nicole to step out into the hallway. Ms. Nicole complied and stepped into the hallway. Ms. Nicole was then place under arrest and taken out of the building around 7:49 pm. Ms. Nicole was wanted by U.S. Marshals for aggravated battery by stabbing.
Finally, the letter informed Ms. Haynes that under HANO's One Strike Policy, 24 C.F.R. 902.43(a)(5),
she was " not entitled to a grievance hearing to dispute management's decision to terminate" the lease agreement " due to the criminal nature of the violation."
On July 7, 2014, counsel for Ms. Haynes sent a request for a grievance hearing on behalf of her client, pointing out that Ms. Haynes had not engaged in [2014-1349 La.App. 4');">1349 La.App. 4 Cir. 3] criminal activity under the provisions of the One Strike provisions of the lease and that her daughter's arrest alone did not create a presumption of criminal activity.
On July 14, 2014, a Rule for Possession was filed in First City Court against Ms. Haynes. The application was filed by " W. Hollins for Guste/HANO" (street address: 1301 Simon Bolivar); the plaintiff was listed as " Guste/HANO; " the reason indicated for eviction was violation of lease agreement " Harboring Fugitive in Apartment." The court issued an Order to Show Cause on July 14, under the case name " Housing Authority of New Orleans vs Cynthia Haynes," setting the hearing date for July 31, 2014. Notably, although the order to show cause indicates that the " owner hereby attaches a copy of said written lease as Exhibit 1," no lease appears as an exhibit in the record before this court. The " owner/attorney/agent" listed on the order to show cause is " Guste Homes Resident Management Corporation." The reason listed for the rule for possession was: " specific violation of lease more particularly HEARING [sic] FUGITIVE IN APARTMENTS."
On July 30, 2014, an answer was filed on behalf of Ms. Haynes pleading exceptions of insufficiency of citation, no right of action, and prematurity, in addition to pointing out that Ms. Haynes' actions did not constitute harboring a fugitive. With regard to the exception of insufficiency of citation, counsel pointed out that Ms. Haynes' lease specifically provided that she had the right to examine documents relevant to an eviction but no such documents had been provided. With regard to the exception of no right of action, counsel pointed out that the burden [2014-1349 La.App. 4');">1349 La.App. 4 Cir. 4] was on the plaintiff (HANO) to show that a lease existed between the plaintiff and defendant, but in this case Ms. Haynes had not signed a lease with HANO, rather she had " signed a lease with Guste Homes RMC, referred to in the lease as the 'Housing Owner of New Orleans.'" A copy of the lease agreement signed by Ms. Haynes was attached as an exhibit to Ms. Haynes' answer.
At the hearing on July 31, 2014, counsel for HANO (Mr. Villavaso) related the basis for Ms. Haynes' eviction:
The NOPD contacted Guste Homes security and said that they believe she [Nicole Haynes] would possibly show up at that site. They asked Guste Homes security not to approach her, not to try to apprehend her, not to do anything, but if that they [sic] saw her or she check in, to contact them and let them know. And that's why the time is so relevantly [sic] short. Police were contacted. NOPD was contacted. NOPD
showed up. They went to the apartment with Guste Homes security. They knocked on the door, asked her to step out. She stepped out and she was arrested. (Emphasis added).
Counsel for HANO further asserted that Nicole Haynes was " wanted by the Marshalls" for " allegedly stabbing a family member in the leg with a knife during an altercation" in St. Charles Parish. Notably, HANO introduced no documents or witness testimony into the record to support this assertion.
In response to questioning by the judge, Ms. Haynes stated she was unaware of an altercation between her daughter and brother (the apparent victim of a stabbing) until after Nicole was arrested at her apartment. Counsel for Ms. Haynes pointed out that another family member had been arrested for stabbing Ms. Haynes' brother, leaving Ms. Haynes with no reason to believe her daughter would be charged in the incident. In response, counsel for HANO argued that [c]riminal activity is cause for eviction even in the absence of conviction or arrest." At this [2014-1349 La.App. 4');">1349 La.App. 4 Cir. 5] point in the proceedings, the judge continued the hearing, pointing out that " She's getting you on the provision of these documents, so I'm going to order you to give her the documents."
On August 5, 2014, counsel for Ms. Haynes filed an amended answer and exceptions to HANO's rule for possession. Once again, the exception of no right of action was included, pointing out that because Ms. Haynes had not signed a lease with HANO, HANO had no right to bring this action. In addition, Ms. Haynes' amended answer pointed out that the alleged violation did not fall under the " One Strike Policy" because that policy exempts only " criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises of other residents, or any drug related criminal activity on and off the premises" from the grievance process and there was no showing that Ms. Haynes's actions threatened the health, safety, or right of peaceful enjoyment of the residents of Guste Homes or was a drug-related criminal activity on or off the premises as required by 42 U.S.C. § 1437d(l)(6); 24 C.F.R. § 966.4(f)(12)(2006).
A copy of the lease agreement between Ms. Haynes and " Housing Owner of New Orleans (THE MANAGER)" and a copy of the GHRMC security incident/accident report filed by security officer Darrel Allen were attached as an exhibit to Ms. Haynes' amended answer. The report indicates that the incident (characterized as " supsect [sic] wanted" ), occurred on " 3-31-14 7:15 p.m. and the report was filed on " 3-13-14 [sic] 7:25 p.m." The incident report further listed [2014-1349 La.App. 4');">1349 La.App. 4 Cir. 6] Nicole Haynes as the " accused/perpetrator" with no stated address. According to the incident summary:
On Monday March 31, 2014 around 7:15 p.m. Ms. Nicole Haynes enter [sic] the Guste Homes building and went to Apartment 1227 where her mother (Cynthia Haynes) live [sic]. I, Lieutenant Allen, along with Officer Pollard and Another Officer went to the 12th floor, and security officer Green and another police officer went to the 10th floor. I knocked on 1227 door, asked Ms. Nicole to step out in the hallway she did and the police place [sic] her under arrest. Ms. Nicole was taken out of the building around 7:49 pm.
When the hearing reconvened on August 6, 2014, the judge announced that the exceptions filed on behalf of Ms. Haynes would be addressed first. The judge denied Ms. Haynes' exception of insufficiency of citation, stating " We're going to go forward with the hearing today for the One Strike." Accordingly, counsel for HANO
announced they were prepared to go forward with the testimony of Mary Wilson, property manager of Guste Homes, and Lieutenant Allen, security guard of Guste Homes.
The trial judge did not rule upon Ms. Haynes' exception of no right of action and, accordingly, her counsel stated " for the record" opposition to going forward because " they were on notice they bear the burden of proof by preponderance of the evidence."
HANO first presented the testimony of Mary Wilson, property manager of Guste Homes. Notably, Ms. Wilson was identified only as the " property manager" without explanation of her credentials to manage federally funded public housing or interpret federal regulations pertaining to public housing such as the " One Strike" policy. In her testimony Ms. Wilson identified a copy of a residential lease [2014-1349 La.App. 4');">1349 La.App. 4 Cir. 7] agreement, a " resident's visitor's log" for the Guste Home High Rise, and a document referred to as " The Housing Authority of New Orleans' One Strike policy." None of these documents were submitted into evidence or appear in the record. Moreover, there is nothing in Ms. Wilson's testimony relating to the residential lease agreement signed by Ms. Haynes, the entity Guste Homes, the relationship of Guste Homes to HANO, or to Guste Homes as public housing regulated by federal regulations.
Rather, Ms. Wilson testified that the visitor log of Guste Homes indicates that Nicole Haynes " signed in on March 31st, 2014, to visit Apartment 1227." When Ms. Wilson was asked to identify a " St. Charles Parish Sheriff's Office News Release," counsel for Ms. Haynes objected, noting that Ms. Wilson " has not authenticated it and she's not in a position to authenticate it." The judge agreed, stating " See if you can get it another way." Counsel for HANO responded " this is a hearing under the One Strike rule, which would be a little bit more laid back than a traditional trial, and we would ask that the Court have just a little leniency on some of our documents." The judge apparently agreed because Ms. Wilson then described the document handed to her:
It says wanted by the U.S. Marshall. Name is Nicole Haynes. It gives her sex, race, height, weight, eyes. And subject to that, she had -- subject to warrant from St. Charles, an aggravated battery and stabbing, and has a hold on it.
Ms. Wilson then explained " how these documents" led her to " the conclusion to evict Ms. Haynes: " Her daughter was inside her unit. She was wanted."
[2014-1349 La.App. 4');">1349 La.App. 4 Cir. 8] When asked to elaborate, Ms. Wilson stated:
According to the sign-in sheet when Ms. Haynes's daughter went to her apartment, 1227, there was a warrant issued for her daughter's arrest and Ms. Haynes was harboring a fugitive. They had a warrant out for her arrest and she was harboring a fugitive in her unit.
Counsel for Ms. Haynes objected again, noting that no warrant had been authenticated on the record or entered into evidence and Ms. Wilson neither saw nor claimed to have seen a warrant. The following colloquy occurred:
THE COURT: Well, he hasn't asked her that. Maybe he's going to ask her that now.
[HANO COUNSEL]: Did you at any time see a warrant or did you use the incident report?
MS. WILSON: No. I used the incident report.
[HANO COUNSEL]: Okay. And after reading the incident report, did you ascertain
enough information to follow through with ...