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Nola East, LLC v. Sims

Court of Appeals of Louisiana, Fourth Circuit

February 13, 2019

NOLA EAST, LLC
v.
MYRON SIMS

          APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2018-03800-F, SECTION "B" Honorable Angelique A. Reed, Judge.

          Myron G. Simms, Jr., FOR DEFENDANT/APPELLANT.

          Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins.

          DALE N. ATKINS JUDGE.

         This is an appeal from a judgment of eviction entered against Mr. Myron Simms in the First City Court of New Orleans.[1] Mr. Simms signed a Lease to live in Magnolia Gardens Apartment #13 beginning December 26, 2017. He was evicted by a Warrant for Possession of Premises in favor of NOLA East, LLC, the landlord, on June 15, 2018. For the reasons that follow, we reverse and remand for a new trial at which Mr. Simms shall be entitled to offer his defense(s) and supporting evidence.[2]

         FACTS AND PROCEDURAL HISTORY

         Plaintiff NOLA East, LLC, the landlord/property owner who is operating and doing business as Magnolia Gardens Apartments, filed a Rule for Possession of Premises on May 24, 2018, against Myron Simms due to his failure to pay rent for the month of May 2018.

         Mr. Simms asserts on appeal that he did not pay his May rent because the landlord failed to make necessary repairs to his apartment. Mr. Simms states that he informed the landlord of the need for urgent repairs at the end of February 2018, and the landlord conducted an inspection on March 16, 2018, after which the landlord indicated that repairs would be made. Mr. Simms contends that the property manager drafted work-orders to request repairs three times, but the appropriate repairs were never made, and Mr. Simms was not able to live in the unit for approximately a month and a half. Mr. Simms told the property manager at the end of April that he could not live in the unit and he would not be able to continue paying rent if repairs were not made.

         Mr. Simms further claims that at the eviction hearing on June 4, 2018, he was not permitted to present any evidence or an affirmative defense regarding the conditions of the apartment.[3] The court evicted Mr. Simms from the premises through a Judgment of Possession in favor of NOLA East signed the same day.

         On June 7, 2018, Mr. Simms obtained legal aid counsel who drafted a motion for new trial, arguing that his rent should have abated due to the lack of habitability of his apartment pursuant to La. Civ. Code art. 2693.[4] According to Mr. Simms, the apartment had been uninhabitable since the end of February 2018 because "raw sewage leaks from the ceiling" of the bathroom when his upstairs or next-door neighbor flushed the toilet or took a shower; there was visible mold growing on the ceiling of the bathroom; there was a hole in the bathroom floor; and the unit had a rodent infestation. On June 12, 2018, a couple of days before the new-trial hearing, counsel for Mr. Simms withdrew from representation.

         Appearing at the June 14 hearing pro se, Mr. Simms stated that he "was not allowed to speak and defend [him]self" at the June 4 eviction proceeding. He also stated that a number of other residents of Magnolia Gardens had requested a full investigation of the "slum-lord" property and had filed complaints with several governmental agencies and consumer-protection entities. The NOLA East representative stated at the June 14 hearing that she had tried to work out a deal with Mr. Simms' (former) counsel, such that he could pay half the rent at that time and pay the other half the following week, because Mr. Simms historically had been good about paying his rent.

         The court denied the motion for new trial from the bench and determined that unsuitable living conditions did not excuse Mr. Simms from paying rent. The next day, June 15, 2018, the court entered a Warrant for Possession of Premises in favor of NOLA East, ordering the eviction of Mr. Simms. Mr. Simms filed a Motion for Appeal on June 15, 2018.

         DISCUSSION

         Pursuant to La. C.C.P. art. 4907 (B), Mr. Simms timely filed a motion for new trial from the June 4, 2018 judgment of possession and, when his request for a new trial was denied, timely moved for an appeal under La. C.C.P. art. 5002 (B).[5]Mr. Simms, appearing pro se, appeals the judgment "granting rule for possession absolute as entered in the above case on the 4th day of June, 2018." In addressing Mr. Simms' appeal of the June 4, 2018 judgment, we also review the lower court's denial of his motion for new trial and the corresponding entry of a Warrant for Possession of Premises on June 15, 2018. See New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 2017-0320, p. 5 n.12 (La.App. 4 Cir. 3/21/18), 242 ...


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