Opinion
NO. 2013 CA 0094
2013-09-13
BRIAN PHILLIPS v. BARRY JANIS
Michael E. Parks New Roads, LA Attorney for Plaintiff-Appellant, Brian Phillips James C. Dewey New Roads, LA Attorney for Defendant-Appellee, Barry Janis
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
18th Judicial District Court,
In and for the Parish of Pointe Coupee,
State of Louisiana
Trial Court No. 44291
Honorable James J. Best, Judge Presiding
Michael E. Parks
New Roads, LA
Attorney for Plaintiff-Appellant,
Brian Phillips
James C. Dewey
New Roads, LA
Attorney for Defendant-Appellee,
Barry Janis
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
This case involves opposing claims for damages following an eviction proceeding. The lessee appeals a final judgment dismissing his claim for damages regarding the loss of his personal possessions after the eviction and awarding damages to the lessor. We affirm.
BACKGROUND
For approximately three years, Brian Phillips leased a mobile home owned by Barry Janis and located on False River in Pointe Coupee Parish. Mr. Phillips paid $550.00 per month for the leased property. After having been notified in writing for several months that his month-to-month lease would not be renewed and that he should vacate the premises, Mr. Phillips refused to leave. Mr. Janis filed a petition for eviction against Mr. Phillips on July 26, 2011, in the Justice of the Peace Court for Pointe Coupee Parish. A judgment of eviction was signed on August 5, 2011, and it was affirmed by order of the Eighteenth Judicial District Court rendered on September 14, 2011, and signed on December 13, 2011. The district court's judgment affirming the eviction is now final, as it was not appealed.
The day that the original judgment of eviction was signed on August 5, 2011, Mr. Phillips stayed at the leased premises; however, the following day, on August 6, 2011, the Constable for the Justice of the Peace Court, Joseph A. Ballard, appeared at the leased premises to eject Mr. Phillips from the property. It is undisputed that Mr. Phillips voluntarily left the premises after speaking to the Constable, and further indicated that he would not return to the property. It is also undisputed that Mr. Phillips left the leased premises in a deplorable condition, without taking his personal possessions, which included many tools, furniture, pots/pans, clothing, and pictures.
Mr. Janis left a voicemail message and mailed a certified letter to Mr. Phillips regarding arrangements for Mr. Phillips to recover his possessions from the leased premises. However, Mr. Phillips made no attempt to retrieve his personal belongings or to communicate with Mr. Janis about the possessions that he left behind. After cleaning out the trash strewn about the mobile home and in an effort to prepare for repair work, Mr. Janis began to move Mr. Phillips's abandoned possessions onto the driveway a few days after the eviction. By the end of August 2011. when Mr. Phillips returned to the leased premises, most of his possessions were no longer in the driveway and none were inside the mobile home.
On November 9, 2011, Mr. Phillips filed suit against Mr. Janis for damages regarding the loss of his personal possessions and for inconvenience, mental anguish, and pain and suffering in conjunction with the lost possessions after a wrongful eviction. Mr. Janis subsequently filed a reconventional demand for damages to the leased premises that were caused by Mr. Phillips. A trial was held on August 15, 2012, resulting in a judgment dismissing Mr. Phillips's claim for damages and awarding a total amount of $2,194.17 in damages to Mr. Janis. Mr. Phillips appealed, assigning error to the trial court's dismissal of his claim for damages and asking this court to render a damage award in his favor. Mr. Phillips did not appeal the amount awarded to Mr. Janis for property damages.
The total amount awarded to Mr. Janis consisted of $550.00 deposit forfeiture, $1,100.00 for two months lost rent, and $544.17 for extraordinary repair costs.
LAW AND ANALYSIS
In oral reasons for judgment, the trial court opined that "[Mr. Janis] wanted [Mr. Phillips] out, and [Mr. Phillips] didn't get out. It's his property. ... [T]he law-allows [Mr. Janis] to remove [Mr. Phillips's] stuff and put it out at the road. Y'all had a disagreement. Your property was out there. You made no effort to get it. ... People came and picked up your property, they took your property [be]cause it was abandoned."
Under Louisiana law, when a tenant has abandoned the leased premises, the landlord is free to remove the tenant's personal effects and re-let the property. See La. Code Civ. P. art. 4731(B) (After the required notice has been given, the lessor or owner, or agent thereof, may lawfully take possession of the premises without further judicial process, upon a reasonable belief that the lessee or occupant has abandoned the premises). Louisiana Code of Civil Procedure article 4731(B) provides in relevant part that "cessation of ... residential occupancy, returning keys to the premises, and removal of equipment, furnishings, or other movables from the premises" are all indicative of abandonment. The meaning of abandonment was clarified by this court in Mansur v. Cox, 2004-0140 (La. App. 1st Cir. 12/30/04), 898 So.2d 446, 448, using a two-part test that required a finding of (1) an act indicative of abandonment and (2) a specific intent to abandon. A determination of whether a tenant has abandoned the leased property is a factual finding subject to review for manifest error on appeal. Id.
In this case, while we do not necessarily disagree with the trial court's conclusion that Mr. Phillips abandoned his personal property when he left the leased premises without his belongings, we find that a determination of abandonment is not pertinent to our analysis since it is undisputed that after a proper notice to vacate, Mr. Janis obtained a valid, final judgment of eviction. The judgment of eviction enabled Mr. Janis to legally terminate Mr. Phillips's possession of the leased premises. Further, the judgment of eviction contained a written order directing the Constable to eject Mr. Phillips if he continued to occupy the leased premises 24 hours after the signing of the judgment of eviction, and to deliver possession of the premises to Mr. Janis. Therefore, when Mr. Phillips voluntarily left the leased premises without taking his personal belongings the day after the judgment of eviction was signed, Mr. Janis had the right to take full possession of the property pursuant to La. Code Civ. P. arts. 4733 and 4734. The Constable accompanied Mr. Janis to the leased premises 24 hours after the judgment of eviction was signed, and consequently, Mr. Jams was placed in full legal possession at that time. Therefore, Mr. Janis had the right to remove Mr. Phillips's personal effects in order to prepare the property to be re-let according to his plans.
Based upon our review of the record and the pertinent law, we find no manifest error or legal error in the trial court's dismissal of Mr. Phillips's claim for damages. The law requires an actual wrongful eviction before a tenant may recover damages from his lessor. See Bunel of New Orleans, Inc. v. Cigali, 348 So.2d 993, 996 (La. App. 4th Cir.), writ denied, 350 So.2d 1210 (La. 1977). Mr. Phillips did not prove a wrongful eviction, and thus, he is not entitled to any damages. Mr. Phillips's assignments of error lack merit.
CONCLUSION
For the assigned reasons, we affirm the trial court's judgment. All costs of this appeal are assessed to plaintiff-appellant, Brian Phillips.
AFFIRMED.