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Scott v. MAC-RE, LLC

Court of Appeals of Louisiana, Third Circuit

February 8, 2017

ERICA SCOTT, ET AL.
v.
MAC-RE, LLC, D/B/A SOUTHERN APARTMENTS

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. C-201311139 HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

         AFFIRMED.

          M. Terrance Hoychick Attorney at Law COUNSEL FOR PLAINTIFFS/APPELLANTS: Erica Scott, Individually and on Behalf of the Minor, Alyssa Grace Scott

          David L. Morgan Stockwell, Sievert, Vicellio Clements & Shaddock, L.L.P. COUNSEL FOR DEFENDANT/APPELLEE: MAC-RE, LLC, d/b/a Southern Apartments

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and D. Kent Savoie, Judges.

          D. KENT SAVOIE JUDGE.

         In this wrongful eviction suit, Plaintiff Erica Scott (Scott), individually and on behalf of her minor daughter, Alyssa Grace Scott, appeals the ruling of the trial court, dismissing her claims against Defendant MAC-RE, LLC d/b/a Southern Apartments (MAC-RE). MAC-RE also appeals that part of the judgment denying its claim for attorney's fees and costs. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         From February 2009 through the summer of 2013, Scott leased an apartment from Southern Apartments, which is owned by MAC-RE, in Iota, Louisiana. The rental period was for one year with an option to renew at the end of the term for an additional one year term thereafter. The lease agreement at issue was signed on February 11, 2013, by Scott and Sherry Hebert (Hebert), the manager of Southern Apartments. Because Scott received federal housing aid, she was required to fill out a USDA Rural Development Tenant Certification. The certification included questions about Scott's income, assets, and employment. The amount of aid Scott received was determined by her answers in the certification. In addition to the certification, Scott also signed an Affidavit of Non-Employment wherein she certified that she was not employed and did not anticipate a change in her employment status over the next year. Based on this information, the amount of Scott's rent was calculated to be fifty-one dollars ($51) per month. Scott lived in the apartment with her daughter, Alyssa Grace.

         MAC-RE owns 113 apartment complexes in Louisiana, Mississippi, and Texas. On May 29, 2013, Donna Thompson, General Manager of MAC-RE, sent a company-wide memorandum to all of its managers of these complexes. The managers were instructed to pass on the memorandum to the residents of the apartment complexes. The memorandum re-iterates that rental payment is due on the 1st of every month. A 10-day grace period is allowed for payment of rent without penalty. On the 11th day of the month, a late fee of ten dollars ($10) or 5% of the gross tenant contribution is charged. The memorandum states:

This notice is to make it understood that beginning June 1st 2013 no longer will any extensions be granted, no longer will any rent be accepted after the 12th when the lease termination is served. Anyone that has not paid rent by the 11th will receive a lease termination and eviction procedures will begin.

         Sherry Hebert testified that she printed it out, went door to door, and gave a copy to everyone who answered. If no one answered, she placed it on their door with a note requesting the resident visit the office and sign the document. Scott alleges that she did not receive it.

         In her petition, Scott alleges that she attempted to submit her rental payment to Hebert on June 13, 2013, but her payment was refused because it was late. However, in her trial testimony, this date changes to June 11, 2013. Because Scott had paid her rent late in the past, she expected it to be accepted. Scott alleges in her petition that, at the same time payment was refused, Hebert gave her a five day notice to vacate the property. However, in her trial testimony she states that the notice was posted on her door on June 13, 2013. Regardless, the Notice of Lease Termination gave her five days to voluntarily vacate the premises, which she did not do. This notice was signed by Sherry Hebert and Peggy Thibodeaux (Hebert's supervisor) on June 13, 2013.

         Justice of the Peace for Ward 4, Acadia Parish, Eldridge Pousson (Pousson) signed a five day notice to vacate directed to Scott and had the constable serve her with it. On July 11, 2013, a five day notice was posted to Scott's door by Mike Habetz, the constable for Ward 4, Acadia Parish at the time. He testified that he made three attempts to serve her at Southern Apartments at different times of the day, but she was never home. On the last attempt, he posted the paperwork to her door. In her trial testimony, she admitted that she did receive this notice. She also testified that she called Pousson who told her that she had five days to vacate the ...


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