Ames Growe, III v. Raymond Johnson and Johnson Realty & Investment Co.
La. Ct. App.
Opinion
AMES GROWE, III * NO. 2020-CA-0143
VERSUS *
COURT OF APPEAL
RAYMOND JOHNSON AND *
JOHNSON REALTY & FOURTH CIRCUIT
INVESTMENT CO. *
STATE OF LOUISIANA
*******
APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2018-01744, SECTION “C”
Honorable Veronica E Henry, Judge
******
Judge Regina Bartholomew-Woods
******
(Court composed of Judge Regina Bartholomew-Woods, Judge Paula A. Brown,
Judge Dale N. Atkins)
Stephen O'Brien Scandurro
Timothy David Scandurro
SCANDURRO & LAYRISSON, L.L.C.
607 St. Charles Avenue
New Orleans, LA 70130-3411
COUNSEL FOR PLAINTIFF/APPELLEE
Pierre V. Miller, II
Patrick Hannon Patrick
PATRICK MILLER LLC
400 Poydras Street, Suite 1680
New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
AMENDED & AFFIRMED AS AMENDED
FEBRUARY 17, 2021
RBW
PAB
DNA
This matter arises from a contractual dispute between a landlord and a
former tenant. Defendants-Appellants/Cross-Appellees, Mr. Raymond Johnson,
and his company Johnson Realty and Investment, Co. (“Mr. Johnson”), appeal
from a judgment in favor of Plaintiff-Appellee/Cross-Appellant, Mr. Ames Growe,
III (“Mr. Growe”), awarding him a partial refund of his security deposit and
reimbursement for the replacement cost, minus depreciation, of his damaged
furniture. Mr. Growe files a cross-appeal seeking full replacement cost of the
furniture, general damages, and attorney’s fees.
For the reasons that follow, we amend the judgment of the trial court to
accurately reflect the trial court’s award regarding the security deposit, amend the
judgment to include damages for mental anguish, and affirm the remainder of the
trial court’s judgment.
1
FACTUAL BACKGROUND
Mr. Johnson, through his company Johnson Realty and Investment, Co.,
owns an apartment building located at 7849 Read Blvd. in New Orleans, Louisiana
(“the property”). According to Mr. Johnson, he lived at the property part-time for
approximately two (2) weeks every month. Mr. Johnson collected rents, handled
repairs, including, but not limited to plumbing repairs, and performed other duties
associated with managing the property. When he traveled, his wife, Bibiana Jones
Johnson (“Mrs. Johnson”), managed the property on his behalf, with the exception
of repair work.
On January 5, 2013, Mr. Johnson entered into a written month-to-month
lease with Mr. Growe to rent an apartment located on the property. The lease
stipulated that Mr. Growe would pay rent in the amount of $600.00 per month, as
well as a security deposit in the same amount. Mr. Growe moved in with his own
furniture including an armoire, a television stand, a buffet, a sofa, an ottoman, and
a loveseat. Mr. Growe testified that he purchased the furniture in 2011.
In February 2014, one year after entering into the lease, Mr. Growe began
experiencing water intrusion-related problems. Mr. Growe testified that water
leaked from the pipes in the apartment above his, down his apartment walls, and
onto his bedroom floor soaking the carpet and furniture. Additionally, water
leaked from the air conditioner unit in Mr. Growe’s apartment and from the air
conditioner unit in the apartment above.
Mr. Growe testified that he complained to Mr. Johnson about the water-
intrusion in his apartment. Instead of hiring a professional company to do repairs,
Mr. Johnson replaced the leaky pipe and installed new sheetrock himself. Mr.
Growe testified that three (3) days after the repair of the initial leak, the pipes
2
began leaking again and needed to be repaired again. Regarding the air
conditioner, Mr. Johnson sent individuals to treat the unit with chemicals every
two weeks. No permanent or semi-permanent repairs were ever made to the air
conditioner which remained a persistent cause of leaking throughout Mr. Growe’s
tenancy. On one occasion, Mr. Growe returned from a hospital stay, due to his
heart problems, and found the apartment flooded; Mr. Johnson’s wife provided Mr.
Growe with towels to soak up the water.
Mr. Growe grew angry and frustrated with the repeated instances of leaking
and flooding. He reported he had to wait weeks for Mr. Johnson to address the
flooding only to have the flooding repeatedly start again. Mr. Growe offered
eighteen (18) pictures into evidence showing the condition of his furniture before
and after his move, as well as, the extent of the flooding and water damage to the
apartment throughout the four and one half (4½) years he was a tenant.
To address the flooding, Mr. Johnson either used a wet-vacuum to clean up
the water or Mr. Johnson sent gentlemen to vacuum the water; however, the
gentlemen did not move the furniture to fully vacuum the area, but vacuumed
around the furniture. Mr. Growe testified that due to heart problems, gout, and
other medical issues, he was unable to move the furniture himself. Mr. Growe
further testified that Mr. Johnson’s offers to fully clean or replace the carpet were
always conditioned upon Mr. Growe moving the furniture. He further stated that
Mr. Johnson would not pay to have the furniture moved.
Mr. Growe testified that as a result of the water running down the walls and
behind his furniture, the pictures on the walls bowed from water damage; the
apartment began smelling of mold; the furniture buckled and mold began to grow
on it; all of the aforementioned was attributable to the persistent water leaking
3
problems. He made frequent attempts to clean the furniture. Mr. Growe recalled
that on one occasion when water damaged his nightstand and buffet, Mr. Johnson
paid him the cost to replace both items.
Mr. Juan Sede, Mr. Growe’s former neighbor and Mr. Johnson’s former
tenant, testified to having visited Mr. Growe’s apartment and experiencing
breathing difficulty because of the extent of the mildew smell in the apartment. He
reported the smell was so strong that he was unable to enter the apartment. Mr.
Sede stated he witnessed wet floors and carpets while standing in Mr. Growe’s
doorway. Mr. Sede testified that he had moved out of his apartment after
experiencing the same flooding and mold problems as reported by Mr. Growe.
Near the end of Mr. Growe’s tenancy, a new parking rule was implemented
allowing for free parking in the property’s lot for one car and a charge of thirty-
five dollars ($35) a day for each additional car. Mr. Growe had three (3) cars in his
possession. Mr. Growe testified that he parked two (2) of the cars in the property’s
lot, and the third car was parked on the street. Mr. Johnson contradicted this
testimony and stated that Mr. Growe parked all three (3) cars in the property’s lot
whenever Mr. Johnson was not physically present at the property.
On May 1, 2017, Mr. Johnson posted a notice on Mr. Growe’s apartment
door terminating his lease. The notice informed Mr. Growe the lease would end on
June 30, 2017. Mr. Johnson sent a follow-up letter on June 23, 2017, informing
Mr. Growe that he would inspect the property on July 3, 2017.
After receiving notification of the termination of his lease, Mr. Growe had
an opportunity to speak with Mrs. Johnson. Mrs. Johnson testified that as he was
leaving, Mr. Growe complained to her about the mold on his furniture and pointed
out to her water within the apartment.
4
On July 2, 2017, Mr. Growe moved out of the property. His furniture, which
smelled of mold, had visible mold growing on it and the wooden pieces were
buckled due to the water damage. He testified that he was forced to discard his
furniture upon moving, because it was damaged beyond repair.
On July 6, 2017, Mr. Johnson inspected the property.1 Subsequent to the
inspection, on July 16, 2017, Mr. Johnson provided Mr. Growe with a “Security
Deposit Disposition,” - an itemized list of the reasons for retaining Mr. Growe’s
security deposit – and did not return any of the deposit. The reasons for retaining
the deposit included: cleaning the kitchen, replacing grease traps, general cleaning
of the apartment, changing locks, parking fees for two extra cars, pest control
supplies, and six days prorated rent. Contrary to Mr. Johnson’s itemized list, Mr.
Growe testified that he had thoroughly cleaned the apartment prior to moving out.
PROCEDURAL HISTORY
On March 2, 2018, Mr. Growe filed a “Petition for Damages” in the First
City Court of New Orleans requesting $6,000.00 in damages relating to the
destruction of his furniture and the return of the security deposit. Mr. Growe
claimed Mr. Johnson breached his duty as a lessor in violation of La. C.C. art.
2682 et seq., and he demanded damages in the amount of six thousand dollars
($6,000) the replacement value of the furniture; the return of the full security
deposit pursuant to La. R.S. 9:3251; attorney’s fees; and equitable relief.2
1
The inspection did not take place on July 3rd because apparently Mr. Johnson was traveling and
unable to conduct the inspection that date.
2
On September 20, 2019, Mr. Growe fax-filed a “Pre-Trial Order” stating he was seeking: 1)
relief due to an illegal eviction – including damages for health-related matters, 2) damages for
the furniture, and 3) the return of the security deposit.
5
On September 26, 2019, following discovery, a bench trial on the merits was
held. On November 13, 2019, the trial court issued a judgment in favor of Mr.
Growe awarding him $3,167.04, plus legal interest from the date of judicial
demand and all costs of the proceedings. On November 15, 2019, the trial court
issued its “Reasons For Judgment,” and the trial court made the following factual
and legal findings: 3
Mr. Growe was not wrongfully/constructively evicted;
Mr. Growe was entitled to damages for the loss of his physical
property, specifically for replacement of his furniture and a
partial refund of his security deposit in the total amount of
$3,167.04;4
Mr. Growe was not entitled to damages for mental anguish,
toxic mold and anxiety; and
Mr. Growe was not entitled to penalty damages or attorney’s
fees regarding Mr. Johnson’s retention of his security deposit.
On November 25, 2019, Mr. Johnson filed a “Motion and Order of Appeal.”
On February 27, 2020, Mr. Johnson filed the instant suspensive appeal. On June 2,
2020, Mr. Growe filed an answer and cross-appeal.
DISCUSSION
Assignments of Error
Mr. Johnson asserts the following assignments of error:
1. The trial court erred in its calculation of the amount of the security
deposit that is to be refunded to Mr. Growe.
3
It is a “‘well-settled rule that the district court’s oral or written reasons for judgment form no
part of the judgment, and that appellate courts review judgments, not reasons for judgment.’”
Wooley v. Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61 So. 3d 507, 572(quoting Bellard v. American Cent. Ins. Co., 2007-1335, p. 25 (La. 4/18/08),980 So. 2d 654, 671
). However, a court of appeal may review the trial court’s reasons for judgment to “gain insight” into the trial court’s judgment. Id., 2009-0571, p. 78,61 So. 3d at 572
; See also Double NRJ Trucking, Inc. v. Johnson, 2017-667, p. 7 (La. App. 5 Cir. 5/16/18),247 So. 3d 1125, 1131
.
4
Based on our analysis herein-below regarding the trial court’s miscalculation pertaining to the
security deposit, the total amount awarded by the trial court is incorrect. The total amount that
should have been awarded is $2,928.52.
6
2. The trial court erred in ruling the damage to the furniture was caused
solely by the landlord without considering Mr. Growe’s duty to
mitigate damages; and
3. The trial court erred in fixing furniture damage costs without evidence
supporting the amount asked for.
Mr. Growe asserts the following assignments of error:
1. The trial court erred by considering the depreciated value of the
furniture and should have awarded full replacement cost;
2. The trial court erred in denying general damages for mental anguish,
wrongful eviction, toxic mold, and anxiety; and
3. The trial court erred in determining that a written demand for the
security deposit is required to trigger the Lessee’s Deposit La. R.S.
9:3251, et seq.
Analysis
Standard of Review
“Factual determinations are subject to the manifest error standard of
review.” Chimneywood Homeowners Ass’n, Inc. v. Eagan Ins. Agency, Inc., 2010-
0368, p. 5 (La. App. 4 Cir. 2/2/11), 57 So. 3d 1142, 1146(citing Stobart v. State, Through DOTD,617 So. 2d 880
(La. 1993)). “Likewise, mixed questions of law and fact are also reviewed under the manifestly erroneous standard of review.”Id.
(citations omitted). The issues raised before this Court are mixed questions of law
and fact. Thus, we are bound by the manifest error standard of review.5
“It is well settled that a court of appeal may not set aside a trial
court’s…finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly
wrong.’” Rosell v. ESCO, 549 So. 2d 840, 844(La. 1989). When considering the reversal of a trier of fact’s determinations, 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial 5 See Noto v. Wong, 2001-0210, p. 3 (La. App. 4 Cir. 3/20/02),814 So. 2d 640, 641
(wherein this
Court determined there was no genuine issue of interpretation regarding the lease contract, but
only whether the provisions of the lease were complied with and thus used the manifest error
standard.
7
court, and 2) the appellate court must further determine that the record establishes
that the finding is clearly wrong (manifestly erroneous).” Stobart v. State, Through
DOTD, 617 So. 2d 880, 882(La.1993). “The inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong.”Id.
(citation omitted). “If in light of the record in its entirety, the trial court’s findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact.” Duncan v. Kansas City S. Ry. Co., 2000-0066 p. 3 (La. 10/30/00),773 So. 2d 670, 675
(citing Sistler v. Liberty Mutual Ins. Co.,558 So. 2d 1106, 1112
(La.1990)).
Mr. Johnson’s Appeal
Calculation of Security Deposit
Mr. Johnson asserts that the trial court incorrectly calculated the amount of
the security deposit to be returned. Mr. Growe paid a $600.00 security deposit at
the beginning of his tenancy. At the end of the lease, Mr. Johnson retained the full
amount and provided a statement summarizing the reasons for keeping the security
deposit. The court determined that some of the reasons listed – such as the general
cleaning fee – were the result of wear and tear and not subject to withholding.
Mr. Johnson does not challenge the trial court’s conclusion regarding what
should be returned, but rather he asserts the trial court’s mathematical calculation
was in error because the trial court ordered the return of $567.04. Mr. Johnson
explains that the trial court ordered the refund of the following amounts from the
$600.00 security deposit:
Item Amount
Prorated rent four (4) days $80.00
Parking Fees $70.00
Cost of Drip Pans $15.92
8
Cost of Screen $11.26
General Cleaning Fee $65.00
Refrigerator Cleaning $20.00
Pest Eradication Supplies $66.34
Total $328.52
Thus, when the trial court ordered the return of $567.04 it committed a
mathematical miscalculation. “Appellate courts have the power to correct errors in
calculation in judgments of the district court, which could have been corrected if
brought to the notice of the court below.” Trane Co. v. Bellevue Baptist Church of
Metairie, 233 So. 2d 13, 15(La. App. 4th Ct. 1970) (citing Union Sulphur Co. v. Campbell,207 La. 514
,21 So. 2d 626
(La. 1945); La. C.C.P. art. 2164).
Accordingly, Mr. Growe is entitled to a refund of $328.52, as opposed to $567.04
of the deposit, and we amend the judgment of the trial court to reflect this proper
amount to be refunded from the security deposit.
As a result of the security deposit mathematical miscalculation, the trial
court awarded Mr. Growe a total damages award of $3167.04; the correct damages
award should have been $2,928.52. However, because we are going to further
adjust damages in favor of Mr. Growe later in this opinion, we do not find it
necessary to correct and amend the trial court’s damages award at this juncture.
Mitigation of Harm
Mr. Johnson asserts the trial court erred by ruling that he was the only party
responsible for the damage to the furniture and did not consider Mr. Growe’s
failure to mitigate the damage to his furniture. Mr. Johnson reports he offered to
clean the floors and replace the carpeting in the apartment and requested Mr.
Growe move his furniture to allow for the complete cleaning. Mr. Growe testified
that due to his physical ailments he could not move the furniture, because it was
9
heavy. Mr. Growe further stated that he did not pay for the furniture to be moved,
because he did not believe that was his responsibility. Mr. Johnson argues that this
failure to act by Mr. Growe contributed to the damages to the furniture.
Louisiana law places certain duties on the lessor. “The lessor is bound: (1)
To deliver the thing to the lessee; (2) To maintain the thing in a condition suitable
for the purpose of which it was leased; and (3) To protect the lessee’s peaceful
possession for the duration of the lease.” La. C.C. art. 2682. “During the lease, the
lessor is bound to make all repairs that become necessary to maintain the thing in a
condition suitable for the purpose for which it was leased, except those for which
the lessee is responsible.” La. C.C. art. 2691.6
Mr. Johnson met his initial duty to deliver the property to be leased when
Mr. Growe moved into the apartment. The trial court found that Mr. Growe was
not disturbed in his peaceful possession of the property because the lease was
month–to-month and Mr. Johnson properly terminated the lease. Mr. Johnson
failed, however, his duty to maintain the property for suitable use. Mr. Growe’s
apartment did not flood once, but three (3) times. Each time, Mr. Johnson failed to
effectively fix the problems, which caused repeated leaks and flooding. Mr.
Growe would not be able to live and function comfortably in a home that
repeatedly had water-intrusion issues. Because Mr. Johnson was frequently
traveling, he was unable to immediately address the complaints of Mr. Growe.
Even when he addressed the complaints, Mr. Johnson failed to adequately clean
the apartment after the flooding which contributed to the mold that ultimately
ruined Mr. Growe’s furniture. Mr. Johnson’s attempt to shift his burden to Mr.
6
Comment (b) clarifies the content of the article and states further, “the lessor…must make all
the necessary repairs, except those that are attributable to the fault of the lessee or are expressly
assigned to the lessee by law or contract.”
10
Growe for failing to move the furniture is without merit. Mr. Johnson is
responsible for hiring credible cleaning crews who would be able to move the
furniture and provide a thorough cleaning of the apartment. Instead, he relied on
his own personal cleaning equipment and an unnamed group of individuals who
provided incomplete cleaning work and expected Mr. Growe, who suffered from
health problems, to shoulder the burden of moving the furniture. Finally,
Louisiana law placed a duty on Mr. Johnson to make repairs when the apartment
was flooded. See La. C.C. art. 2691. The trial court found that Mr. Johnson’s
repeated failure to properly fix the flooding issues was the sole reason the furniture
was damaged, not the furniture’s location within the apartment. We do not
conclude that the trial court was manifestly erroneous in finding that Mr. Johnson
was solely responsible for the damage to Mr. Growe’s furniture. Thus, Mr.
Johnson’s assignment of error is without merit.
Valuation of Mr. Growe’s Furniture
Mr. Johnson and Mr. Growe both assert that the trial court erred in
calculating the cost for replacing Mr. Growe’s furniture. Mr. Johnson contends
that the trial court erred in awarding any monies for Mr. Growe’s furniture when
Mr. Growe offered no evidence of the value of the furniture. Conversely, Mr.
Growe asserts the trial court erred in awarding replacement cost minus
depreciation for the furniture; he seeks the full replacement cost of the furniture.
Alternatively, Mr. Growe requests that the depreciation percentage be lowered to a
de minimus amount in consideration of the furniture being “like new” at the
beginning of his tenancy.
In making its monetary award for the damaged furniture, the trial court
found that Mr. Growe’s furniture was “like new” when he placed it in the
11
apartment. The trial court further found that the damage to the furniture was so
severe that repairs were not possible, and Mr. Growe was entitled to have the
furniture replaced. The trial court determined that the replacement cost should be
based on a depreciated value because the furniture was ten (10) years old by the
end of the lease. The depreciated value was subtracted from the cost of a new set
of furniture and not the original cost of the furniture.
In determining damages, the trial court is granted great discretion. Brown v.
Williams, 36,863, p. 11 (La. App. 2 Cir. 7/31/03), 850 So. 2d 1116, 1124. The damages awarded by the trial court may only be disturbed when the record “show[s] that the factfinder abused its broad discretion in making the award.”Id.
(citing Jackson v. A.L. & W Moore Trucking,609 So. 2d 1064
(La. App. 2d Cir.1992)). The question is not whether a different damage award is more appropriate; but rather, whether the trial court’s decision is “based on justifiable inferences from the evidence and is reasonably supported by the record.”Id.
The primary goal of awarding damages “is to restore the property, as nearly
as possible, to its condition immediately prior to the damage.” Brown, 36,863, p.
11, 850 So. 2d at 1124. The court has three (3) options when calculating damages: “(1) the cost of restoration if the damaged item can be adequately repaired; (2) the difference in value prior to and after the damage; or (3) the cost of replacement, less reasonable depreciation, if the value before and after the damage cannot be reasonably determined.”Id.
(citing Summarell v. Ross, 27,160 (La. App. 2 Cir. 8/23/95),660 So. 2d 112
; Cenac v. Duplantis,407 So. 2d 424
(La. App. 1st Cir.
1981)).
In the current case, the trial court determined that the furniture could not be
repaired as espoused in option one (1) of the Brown case. The trial court based its
12
decision on the pictures of the furniture, which were introduced into evidence,
along with the testimony of Mr. Growe. Ultimately, the trial court chose option
three (3), when it awarded Mr. Growe a sum of money equal to the replacement
cost of the furniture, minus reasonable depreciation cost. While it is unclear why
the trial court choose option three (3), as opposed to option (2), the difference in
value prior to and after the damage, in accordance with Brown, we find that the
trial court acted within its authority in choosing this option.
In awarding damages for the ruined furniture, the trial court accepted Mr.
Growe’s uncontroverted testimony that he received an estimate of $5,200 to
replace the furniture.
‘[W]here no contradictory evidence is presented the
plaintiff's testimony as to the value and description of the
property, including the place of purchase and the price,
may satisfy the burden of proof of the plaintiff, provided
such testimony contains a minimal degree of detail or
specificity as to value to support an award of monetary
damages.’
Feingerts v. Louisiana Citizens Prop. Ins. Corp., 2018-0381 p. 19 (La. App. 4 Cir.
2/13/19), 265 So. 3d 62, 75, writ denied, 2019-00436 (La. 9/6/19),278 So. 3d 364
(quoting Cho v. Royal Oldsmobile Co., Inc., 98-0527, p. 8 (La. App. 5 Cir. 11/25/98),722 So. 2d 1138, 1142
(citations omitted)). Furthermore, it is well- settled that “the trial judge is in the best position to weigh the credibility of all the witnesses testifying before him, and thus that his findings should be accorded great weight by the appellate court.” Fortenberry v. Ellis,217 So. 2d 792, 794
(La. App. 4th Ct. 1969) (citing Orlando v. Polito,228 La. 846
,84 So. 2d 433
(La. 1955)). In
the current case, the trial court believed Mr. Growe’s testimony about the cost of
the furniture. Beyond the testimony, the trial court considered the pictures
showing the condition of the furniture before and after the apartment flooded and
13
found these pictures sufficient to show the extent of the damages. Furthermore,
Mr. Johnson offered no evidence to contradict Mr. Growe’s estimated value. Thus,
we do not find that the trial court committed manifest error in viewing Mr.
Growe’s testimony favorably.
After accepting the estimate provided by Mr. Growe, the trial court
determined that damages should be calculated based on replacement cost minus
depreciation at 5% per year. This amounted to an award of $2,600 for the
furniture. Mr. Johnson asserts that because there was no proof in the form of an
estimate or appraisal, regarding the extent of damages and how much the new
furniture would cost, the trial court should not have made a determination of
damages. However, pursuant to option three (3) of Brown, we find this
requirement unnecessary. Moreover, “[w]hen it is clear that a plaintiff has
sustained some damages as a result of the fault of the defendant…his demands will
not be rejected merely because he cannot establish exactly the amount suffered.”
Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 184-185,75 So. 2d 236, 239
(1954) (internal citations omitted).
Additionally, it is reasonable for the trial court to calculate depreciation
costs into the award. In Feingerts, when faced with a plaintiff whose furniture had
been ruined, like Mr. Growe’s, due to water damage, this Court noted that proof of
depreciation of the furniture should be provided, as opposed to full replacement
value. 265 So. 3d at 75.7
The price offered by Mr. Growe’s testimony is not unreasonable for the cost
of a furniture set, and a five percent (5%) depreciation is a reasonable offset. The
7
“…[I]n order to recover the policy limits, Feingerts had to prove $ 100,000.00 in damages
(including any depreciation)” (emphasis added).
14
trial court did not abuse its wide discretion in both awarding damages and the
depreciated amount calculated. Thus, we affirm the amount awarded for the
replacement of the furniture, and find both Mr. Johnson’s and Mr. Growe’s
assignments of error regarding the same to be without merit.
Mr. Growe’s Appeal
General Damages for Uninhabitable Property
Mr. Growe asserts that the trial court erred in failing to award general
damages for mental anguish, wrongful eviction, toxic mold, and anxiety associated
with his property being uninhabitable due to the water intrusion. Mr. Growe states
the trial court improperly considered illegal eviction and toxic tort rather than
violations of La. C.C. art. 26828 and La. C.C. art. 2696.9 Mr. Growe asserts he is
entitled to damages based on the breach of the aforementioned codal provisions.
This Court finds Mr. Growe’s assertion is correct and that the trial court should
have considered damages in light of those codal provisions.
“[A]s a matter of law, a tenant is not precluded from seeking nonpecuniary
damages for breach of a contract of lease….” Ganheart v. Exec. House
Apartments, 95-1278, p. 7 (La. App. 4 Cir. 2/15/96), 671 So. 2d 525, 529. However, the plaintiff has the burden of proving the damage he suffered as a result of the defendant’s fault.Id.
“An award of non-pecuniary damages for breach of a lease is reviewed on appeal under the manifest error standard.” Graci v. Gasper John Palazzo, Jr., L.L.C., 12-853, p. 15 (La. App. 5 Cir. 5/30/13),119 So. 3d 741, 750
.
8
The lessor is bound: (1) To deliver the thing to the lessee; (2) To maintain the thing in a
condition suitable for the purpose of which it was leased; and (3) To protect the lessee’s peaceful
possession for the duration of the lease.
9
“The lessor warrants the lessee that the thing is suitable for the purpose for which it was leased
and that it is free of vices or defects that prevent its use for that purpose.”
15
In Ganheart, a case substantively similar to the instant matter, the plaintiff
sought an increase in the damages awarded to her by the trial court for the
defendant’s failure to correct repeated plumbing problems causing the plaintiff to
incur damages including mental anguish. Id. at 526-27. The leaking, which
occurred over a period of only a few months, was the result of a faulty dishwasher
and shower in the apartment above. Id. at 527. The plaintiff was forced to
continuously clean-up water and the landlord never repaired the faulty appliance or
shower. Id. at 527-28. This Court affirmed the trial court’s award of $1,500 for
mental distress. Id. at 529. This Court held “[a]s a matter of law, a tenant is not
precluded from seeking nonpecuniary damages for breach of a contract of lease.”
Id. at 529. “Mental anguish may be awarded.” Id. “A lease for residential
purposes includes, as one of its objects, the enjoyment of habitable living quarters,
arguably a nonpecuniary interest.” Id. at 530. “Testimony and photographic
evidence of the living conditions is sufficient evidence to warrant damages for
mental anguish.” Id.10
Mental anguish may also be awarded for property damage. Jensen v.
Matute, 2019-0706, p. 12 (La. App. 4 Cir. 1/29/20), 289 So. 3d 1136, 1145.
In Louisiana, an award for mental anguish
resulting from property damage is permissible in limited
situations: (1) when property is damaged by an
intentional or illegal act; (2) when property is damaged
by acts for which the tortfeasor will be strictly or
absolutely liable; (3) when property is damaged by acts
constituting a continuing nuisance; or (4) when property
is damaged when the owner is either present or nearby
and suffered a psychic trauma as a direct result. First of
Georgia Insurance Co. v. Cohen, 398 So.2d 1209 (La.
10
“The testimony of Monica Dugais, not only corroborates the uninhabitable condition of the
premises, but also shows the unpleasantness of visiting plaintiff there. We are satisfied plaintiff
proved that she is entitled to damages for mental anguish and inconvenience.”
16
App. 4th Cir.1981); Turgeau v. Pan American World
Airways, 764 F.2d 1084 (5th Cir.1985).
… Furthermore, the mental anguish must be a real
mental injury; the usual worry or inconvenience over the
consequences of property damage will not justify an
award for mental anguish. Robertson v. Geophysical
Service, Inc.,469 So.2d 22(La. App. 1st Cir.1985). Blache v. Jones,521 So. 2d 530, 531
(La. App. 4th Cir. 1988).
Like the plaintiff in Ganheart, the record in the present case reveals that Mr.
Growe and Mr. Sede both testified to the extent of the mold damage in the
apartment. Mr. Growe provided photographic evidence of the apartment’s
condition to support his testimony. Mr. Growe testified about his continuous anger
and frustration regarding the repeated flooding that made the apartment
inhabitable. Mr. Sede testified as to the bad conditions, i.e., odor and wet and
moldy floors of Mr. Growe’s apartment. On one occasion, Mr. Growe was forced
to use his own comforter to soak up the water. The extent of the flooding was so
bad that Mr. Growe was forced to recuperate in a hotel following a hospital visit.
Mr. Growe’s complaints were met with half-hearted insufficient stop-gaps and no
true resolution to the flooding was implemented. Mr. Johnson’s failure,
throughout the years of Mr. Growe’s tenancy to have a professional address the
flooding created a continuing nuisance. Furthermore, Mr. Growe was present to
witness the property damage. For nearly three and one half years, Mr. Growe
experienced the flooding and attempted to clean and preserve his furniture. He
witnessed his furniture buckle and warp as he waited for Mr. Johnson to solve the
flooding problems. Mr. Growe suffered mental anguish beyond mere worry for the
replacement of his property. Additionally, his health conditions were exacerbated
to such an extent that he developed breathing problems. Mr. Growe sufficiently
proved he was entitled to damages as a result of the mental anguish and the
17
repeated inhabitable conditions of his apartment. Thus, we find that the trial court
committed manifest error in failing to award Mr. Growe general damages for
mental anguish and inhabitability, in accordance with jurisprudence of this court
allowing the for damages under similar circumstances.
In addition to Ganheart’s award of one thousand five hundred dollars
($1,500), our research of similar cases granting awards for mental anguish in
property damage cases reveals damage awards in the following amounts: six
hundred dollars ($600),11 five thousand dollars ($5,000),12 twenty thousand dollars
($20,000),13 and a range of fifteen thousand dollars ($15,000) to twenty-five
thousand dollars ($25,000).14 Based on the jurisprudence and the number of years
Mr. Growe suffered, this Court finds an award of five thousand dollars ($5,000) is
reasonable for mental anguish he suffered as a result of the repeated water
intrusion and destruction of his personal property.15 Thus, the trial court judgment
is amended to award five thousand dollars ($5,000.00) in consideration of Mr.
Growe’s mental anguish.
Fees and Damages under the Lessee’s Deposit Act
11
Smith v. Castro Bros. Corp., 443 So. 2d 660, 661(La. App. 4th Ct. 1983) (finding the tenant was not entitled to damages which occurred after lawful eviction and amending the judgment award from $750 to $600 for mental anguish over a 3-month period). 12 In re New Orleans Train Car Leakage Fire Litig., 2000-1919, p. 14 (La. App. 4 Cir. 4/20/05),903 So. 2d 9, 13
(affirming award for mental damages to tenants after a fire caused property damage, physical pain and suffering, and emotional distress). 13 Jones v. Capitol Enterprises, Inc., 2011-0956, p. 54 (La. App. 4 Cir. 5/9/12),89 So. 3d 474, 510
(affirming a lump sum of $20,000 for physical pain and suffering, property damage, mental
anguish, and nuisance where plaintiffs experienced continued nuisance from the work being
performed on a local water tower).
14
Holzenthal v. Sewerage & Water Bd. of New Orleans, 2006-0796, p.40 (La. App. 4 Cir.
1/10/07), 950 So. 2d 55, 79 (affirming award where plaintiffs sued for property damage resulting
from sewerage and water board project that caused mental anguish and disturbance of peaceful
possession of their property).
15
Mr. Growe suffered with continuous flooding beginning in February 2014 and continued until
he finally moved out in July 2017 for a total of three (3) years, five (5) months or forty-one (41)
months.
18
Finally, Mr. Growe asserts the trial court erred in not awarding him the
return of his full security deposit, as well as fees and penalties per the Lessee’s
Deposit Act, La. R.S. 9:3251, et seq. The trial court declined to award the full
security deposit and penalties finding Mr. Johnson had not violated the Lessee’s
Deposit Act. Additionally, the trial court ruled that, pursuant to the Lessee’s
Deposit Act, Mr. Growe needed to submit a written demand for the return of the
security deposit. Mr. Growe asserts a written demand is not required for recovery.
Louisiana Revised Statute 9:3251, et seq. (the “Lessee’s Deposit Act”) is a
set of laws meant to protect lessees from the arbitrary retention of their security
deposits by the lessors. Webapps, L.L.C. v. Murdock, 2016-0092 p. 4-5 (La. App.
4 Cir. 6/29/16), 196 So. 3d 765, 768(citations omitted). The Lessee’s Deposit Act provides the lessee a legal process to recover the security deposit, as well as attorney fees. Webapps,196 So. 3d at 768
; Curtis, 349 So. 2d at 364. The application of the Lessee’s Deposit Act is a question of law subject to de novo review. Webapps,196 So. 3d at 768
.
Specifically, applicable to this case the Lessee’s Deposit Act states:
A. Any advance or deposit of money furnished by a
tenant or lessee to a landlord or lessor to secure the
performance of any part of a written or oral lease or
rental agreement shall be returned to the tenant or
lessee of residential or dwelling premises within one
month after the lease shall terminate, except that the
landlord or lessor may retain all or any portion of the
advance or deposit which is reasonably necessary to
remedy a default of the tenant or to remedy
unreasonable wear to the premises. If any portion of
an advance or deposit is retained by a landlord or
lessor, he shall forward to the tenant or lessee,
within one month after the date the tenancy
terminates, an itemized statement accounting for
the proceeds which are retained and giving the
reasons therefor. The tenant shall furnish the lessor a
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forwarding address at the termination of the lease, to
which such statements may be sent.
La. R.S. 9:3251(A) (emphasis added).
A. The willful failure to comply with R.S. 9:3251 shall
give the tenant or lessee the right to recover any portion
of the security deposit wrongfully retained and three
hundred dollars or twice the amount of the portion of the
security deposit wrongfully retained, whichever is
greater, from the landlord or lessor, or from the lessor's
successor in interest. Failure to remit within thirty days
after written demand for a refund shall constitute
willful failure.
La. R.S. 9:3252 (A) (emphasis added). Additionally, “[i]n an action brought under
La. R.S. 9:3252, the court may in its discretion award costs and attorney’s fees to
the prevailing party.” La. R.S. 9:3253.
Louisiana jurisprudence has consistently held that a lessee is not entitled to
damages pursuant to willful failure to comply with La. R.S. 9:3251 if a written
demand for the return of the security deposit was not issued. Trapani v. Morgan,
426 So. 2d 285, 291(La. App. 4th Ct. 1983); Maxie v. Juban Lumber Co.,444 So. 2d 181, 183
(La. App. 1st Ct. 1983).
In Trapani, the lessee-appellant contended the landlords had failed to either
account for or return the security deposit. 426 So. 2d at 290. The lessee sought the return of the security deposit, damages, and attorney’s fees in line with the Lessee’s Deposit Act.Id.
This Court found that even though the landlords failed to account for or return the security deposit, the lessee’s failure to submit a written demand barred his recovery of damages.Id. at 291
. This Court determined the only remedy available was the return of the security deposit and amended the trial court’s ruling to reflect this.Id.
Similarly, in Maxie, the landlord failed to return
or account for the keeping of the security deposit; however, the lessee failed to
20
submit a written demand. 444 So. 2d at 183. Akin to Trapani, the court reasoned that the lessee must make a written demand and denied damages to the lessee.Id.
In the instant case, Mr. Johnson was obligated to either return Mr. Growe’s
deposit within thirty (30) days of the termination of the lease or provide Mr. Growe
with an itemized statement within one month of the termination of the lease
outlining the amount to be retained and giving the reasons for retention. Because
the lease terminated on June 30, 2017, Mr. Johnson had until July 30, 2017, to act.
Mr. Johnson timely provided the itemized statement to Mr. Growe on July 16,
2017. Thus, we find that Mr. Johnson complied with La. R.S. 9:3251(A).
Mr. Growe did not make a written demand for the return of his security
deposit as mandated by statutory and jurisprudential authorities; thus, he is barred
from recovering any damages he may have been due. The trial court made
actionable the only remedy available, which was to return the portion of the
security deposit that was wrongfully withheld. The trial court did not err when it
denied damages pursuant to the Lessee’s Deposit Act.
In addition to denying damages, the trial court also denied attorney’s fees.
Louisiana Revised Statute 9:3253 allows the prevailing party to recover attorney’s
fees at the discretion of the trial court. In this matter, the trial court, citing Maxie
in its reasons for judgment, denied attorney’s fees because Mr. Growe was not
entitled to damages. The lessee in Maxie asserted the trial court erred in linking
the award of attorney’s fees with whether or not he was also entitled to damages.
444 So. 2d at 183. The appellate court affirmed the denial of attorney’s fees holding that when the “[prevailing party] is not entitled to damages under La. R.S. 9:3252, La. R.S. 9:3253 is inapplicable….”Id.
21
Based on the aforementioned, we find that Mr. Growe is not entitled to
damages. Following the standard set forth in Maxie, we agree that the lack of
entitlement to damages precludes consideration of attorney’s fees. Accordingly,
we find the trial court did not abuse its in declining to award attorney’s fees. Thus,
this assignment of error lacks merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is amended to
reflect that Mr. Growe is entitled to the partial refund of his security deposit in the
amount of three hundred and twenty-eight dollars and fifty-two cents ($328.52)
and general damages for mental anguish in the amount of five-thousand dollars
($5,000.00). This combined with the trial court’s award of two thousand, six
hundred dollars ($2,600) for property damage equals a total award of seven-
thousand nine-hundred twenty-eight dollars and fifty-two cents ($7,928.52) plus
judicial interest in accordance with the trial court’s judgment. Thus, the judgment
of the trial court is amended, and affirmed as amended.
AMENDED & AFFIRMED AS AMENDED
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