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1205 St. Charles Condominium Assoc. Inc. v. Abel

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

1205 ST. CHARLES CONDOMINIUM ASSOC. INC
v.
CLIFFORD ABEL, ET AL

          APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2018-02442, SECTION "B" Honorable Angelique A. Reed, Judge

          James C. Rather, Jr. ALKER & RATHER, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          Madro Bandaries MADRO BANDARIES, P.L.C. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods

          Daniel L. Dysart Judge

         In this eviction proceeding, defendant-appellant, Clifford Abel, appeals a trial court judgment, in favor of plaintiff-appellee, 1205 St. Charles Condominium Association, Inc. (hereafter, the "SCCA"), which ordered that Mr. Abel vacate the premises he leased. For the reasons set forth more fully herein, we affirm the trial court's judgment.

         PROCEDURAL AND FACTUAL BACKGROUND

         On April 5, 2018, the SCCA filed a Rule for Possession of Premises ("Rule"), seeking to have Mr. Abel and June Abel evicted from 1205 St. Charles Avenue, unit 405, New Orleans, Louisiana. The basis of this Rule was Mr. Abel's alleged violation of several provisions of the lease. Attached to the Rule was a copy of the lease; the SCCA's Declarations, By-Laws and Rules and Regulations; a February 15, 2018 letter to Mr. Abel advising of the SCCA's intent to cancel the lease and commence eviction proceedings on March 19, 2018; and a March 12, 2018 letter to Mr. Abel requiring that he vacate the property no later than March 20, 2018.

         In response, on April 12, 2018, Mr. Abel filed exceptions to the Rule. Those exceptions included the following arguments: (1) the Rule was "moot" because of insufficient notice; (2) the "owner of the leasehold" is not the SCCA and therefore, the proceeding lacked an indispensable party;[1] (3) Mr. Abel's mother, who resides in Florida, "is an executor of the lease," and was a necessary party to the proceedings upon whom notice and service of the Rule was required; (4) the SCCA did not establish by what authority it sought to evict him; (5) the events giving rise to the allegations of Mr. Abel's violations of the lease occurred prior to December 1, 2017 and were thus "moot;" (6) Mr. Abel "received no notices oral or written from" the manager or assistant manager; and (7) the allegations against Mr. Abel were false and he "never harassed or intimidated other resident[s]."

         After a hearing on the Rule and by judgment dated April 17, 2018, the trial court granted the Rule and ordered that Mr. Abel and Ms. Abel vacate the premises by May 31, 2018. On April 17, Mr. Abel filed a hand-written document in which he requested an order of suspensive appeal. The trial court set a suspensive appeal bond in the sum of $250.00. The appeal was converted to a devolutive appeal after the SCCA moved to dismiss the appeal based on Mr. Abel's failure to answer the Rule, under oath, pleading affirmative defenses pursuant to La. C.C.P. art. 4735.[2]

         Standard of Review

         In an eviction proceeding, it is the lessor's burden of proof "by a preponderance of the evidence, [of] 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.

         It is well-settled that appellate courts "review the lower court's eviction ruling under the manifest error/clearly wrong standard of review." Second Zion Baptist Church #1 v. Jones, 17-0926, p. 5 (La.App. 4 Cir. 4/18/18), 245 So.3d 9, 12. Thus, "'[a] judgment of eviction must be reversed when the lessor fails to prove the legal ground upon which the lessee should be evicted.'" Id., p.4, 245 So.3d at 12, quoting Hous. Auth. of New Orleans v. King, 12-1372, p. 4 (La.App. 4 Cir. 6/12/13), 119 So.3d 839, 842. "If the trial court's factual conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trial court." Interstate Realty Mgmt. Co. v. Price, 11-1131, p. 6 (La.App. 4 Cir. 3/7/12), 86 So.3d 798, 802 (citation omitted). "The reviewing court must always keep in mind that if a trier of fact's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently." Id. (citation omitted).

         We note, too, that "'[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.'" 200 Carondelet v. Bickham, 17-0328, p.4 (La.App. 4 Cir. 10/25/17), --- So.3d ----, ----, 2017 WL 4803954, quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, "[i]f there are two permissible views of the evidence, 'the factfinder's choice between them cannot be manifestly wrong.'" Id.

         Testimony at hearing

         At the hearing on the Rule, the trial court initially considered and rejected all of Mr. Abel's exceptions. The trial court then heard the testimony of six witnesses, including Mr. Abel.

         The first witness to testify was Victor Zaidain, the president of the board of directors of the SCCA, who authenticated the SCCA's Acts of Declaration and its rules and regulations.[3] Mr. Zaidain then testified regarding a series of meetings that took place after he was elected as president of the board in January, 2018. At the second of these meetings in February 16, 2018, the board, by a quorum of three board members, elected to issue a thirty-day eviction notice to Mr. Abel. This decision, according to Mr. Zaidain, was based on a number of occurrences, and a number of complaints from other condo owners, from November, 2017 through January, 2018.[4] A letter was then sent to Mr. Abel and his landlord advising of the board's intent to proceed with the cancelation of the lease and providing a thirty day notice.

         On cross-examination, Mr. Zaidain reviewed some emails from his cell phone. One concerned attempts by the manager to meet with Mr. Abel's landlord to discuss Mr. Abel's behavior (to which the landlord reportedly responded that he had "nothing to do with it, and for the Board to proceed with whatever it wanted to do"). Mr. Zaidain also detailed fines levied against Mr. Abel's landlord for Mr. Abel's infractions, including his leaving cigars on the premises, one of which burned a hole in a chair, and another for verbal abuse.

         Trisha Loporto, a resident of the condominiums, testified next. According to Ms. Loporto, she had reserved a community room for a family reunion on Thanksgiving Day. When she went to check on the room, she encountered Mr. Abel, who was watching television in the room. Mr. Abel used profanity and accused Ms. Loporto of having locked him out of the room. He then cursed at Ms. Loporto, calling her an "f---ing b ----- ."[5] Ms. Loporto left the room and reported the incident to a guard and later, to the property's management.

         Paul McNair, a security officer employed by New Orleans Private Patrol, worked as a security guard at the condominiums for four years. On the Thanksgiving Day prior to the hearing, Mr. McNair reported to work and, while sitting at his desk, he encountered Mr. Abel, who called him an "f---ing n---er," accusing him of having locked the door to the party room.[6] Mr. McNair testified that Mr. Abel "continually called [him]" that racial epithet "the whole time while I was in the building." Mr. McNair further testified that Mr. Abel "told [him he was] going to make [his] life miserable." According to Mr. McNair, Mr. Abel "tormented [him] every day."

         Ron Martinez, also a security guard for New Orleans Private Patrol stationed at the condominiums, testified that, while he was patrolling the property, he observed Mr. Abel going through a woman's laundry in the laundry room on more than one occasion. He indicated that, on another occasion, he saw Mr. Abel holding a pair of woman's panties (which he knew to be a woman's because it was pink), and on another occasion, he observed Mr. Abel with a woman's bra, which he saw him "rubbing."[7]

         In his defense, Mr. Abel called Maude Varela, another condominium resident, who testified that she was one of the board members present at the meeting where the board voted to evict Mr. Abel. According to Ms. Varela, there were five board members, four of whom voted to evict him, while she abstained from voting. Ms. Varela also testified that there is a group of ...


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