FROM FIRST CITY COURT OF NEW ORLEANS NO. 2016-09243-F,
SECTION "D" Ernestine L Anderson-Trahan, Judge
Terrel J. Broussard, Pro Tempore
Kansas LAW OFFICE OF JACOB KANSAS COUNSEL FOR
PLAINTIFF/APPELLEE, 200 CARONDELET
Adams SOUTHEAST LOUISIANA LEGAL SERVICES COUNSEL FOR
DEFENDANT/APPELLANT, TYRONE BICKHAM
composed of Judge Terri F. Love, Judge Terrel J. Broussard,
Pro Tempore, Judge Marion F. Edwards, Pro Tempore
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
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
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.
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.
AND PROCEDURAL BACKGROUND:
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 USC section 42 et. seq.
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)."
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
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.
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
OF REVIEW/BURDEN OF PROOF:
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).
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.
OF ERROR NO. 1:
find no violation of the drug free/zero ...