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Second Zion Baptist Church #1 v. Jones

Court of Appeals of Louisiana, Fourth Circuit

April 18, 2018

SECOND ZION BAPTIST CHURCH #1
v.
PAMELA JONES

          APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2017-06759, SECTION "D" Ernestine L. Anderson-Trahan,

          Martin Morgan Attorney at Law COUNSEL FOR PLAINTIFF/APPELLEE

          Hannah Adams Attorney at Law SOUTHEAST LOUISIANA LEGAL SERVICES COUNSEL FOR DEFENDANT/APPELLANT

          (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods)

         

          Regina Bartholomew-Woods Judge

         Defendant, Pamela Jones (hereinafter "Appellant"), suspensively appeals the September 21, 2017 judgment of the First City Court of New Orleans ordering Appellant's eviction from housing leased to her by Plaintiff, Second Zion Baptist Church (hereinafter "Appellee" or "the church"). For the reasons that follow, we reverse the judgment of the lower court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Due to her mental disabilities, Appellant receives assistance through various programs, including a housing subsidy through Unity of Greater New Orleans ("Unity"). Appellant's lease with Appellee commenced in November 2015, for a period of one year, continuing on a month-to-month basis thereafter. Unity entered into a Housing Assistance Payment ("HAP") contract with Appellee to make Appellant's rent payments.

         The lease between Appellant and Appellee specifically prohibited pets. At the time the lease was signed in November 2015, Appellee claims to have been unaware of the fact that Appellant had an emotional support dog. In February of 2016, after Appellee became aware of the dog, it accepted payment of one hundred dollars from Appellant as a pet fee. The lease further provided a non-exhaustive list of prohibited activities constituting "nuisance, " such as "disturbing neighbors."

         On August 14, 2017, Appellee sought to evict Appellant, providing a "5 Day Notice to Vacate Premises."[1] The notice stated "Owner wants possession of property due to dog on premises." Efforts by Appellant's social workers to reach a compromise with Appellee were unsuccessful, and on September 11, 2017, Appellee filed an "Application for Rule for Possession of Premises" on the same basis as that provided in the prior notice to vacate.

         A hearing on the rule for possession was held on September 21, 2017. Prior to any testimony, counsel for Appellant noted that Appellee had apparently accepted rent after the August 14, 2017 Notice to Vacate, arguing that such acceptance "should vitiate the eviction." The court responded that rent could be accepted after the notice, but not after the petition for possession. Counsel then indicated that she was not sure of the exact date payment was accepted, stating "[i]t sounds like they accepted it a few days before the Rule for Possession[, ]" and that it was their position "that it can't be accepted after the Notice [to Vacate.]" The court took a break to address unrelated matters, and the matter was not discussed further.

         When the court resumed the proceeding, the court discussed the matter on the record with members of the church who were present for the hearing. Vernon Charles, Deacon of the church, explained to the court that Appellant's dog presented a problem because "[i]nsurance said we do not have insurance for the dog."

         Bobby Temple, a member of the church's trustee board and the church's property manager, explained that complaints had been made about the dog. He also stated that Appellant had been asked to clean up after her dog, that he sent texts to Appellant, and that she responded that she would clean up after the dog. He explained that the previous preacher who managed the church had accepted the pet deposit from Appellant, but that he had left the church about eleven months prior to the hearing. Mr. Temple said the dog was "running out the yard and she's not picking up behind the dog[, ]" referring to Appellant. He responded affirmatively to the court's question that he had personally seen the dog, stating "I texted her . . . about the dog running through the yard." He then proceeded to show the court a text apparently concerning another resident's dog, and the court itself stated the text was "unclear" and that the text looked as though it was regarding "the dog from the other case." Appellant's counsel objected to many of the remarks based on hearsay grounds.

         Counsel for Appellant then proceeded to call and question Mr. Charles on the stand as an adverse witness.

         The lease agreement between the two parties was entered into evidence, as was the receipt provided to Appellant reflecting her payment of a one hundred dollar pet fee several months later. Counsel also introduced a letter from Danielle Petroni, a Licensed Clinical Social Worker ("LCSW"), dated August 9, 2017, indicating Appellant had been diagnosed with a disability "that limits her psychological functioning" and that Appellant needs "an emotional support animal in order to live independently." The letter further requested that "reasonable accommodations" be made for Appellant as a result of her disability.[2] He stated that he never personally saw the dog soiling the yard, only that others notified him of it, but that he did observe the dog acting "very aggressively" by barking at ...


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