Rickeshia-Raquel Devall v. Home Finders International, Inc. and Natalie W. Gamble
La. Ct. App.
Opinion
RICKESHIA-RAQUEL * NO. 2022-CA-0774
DEVALL
*
VERSUS COURT OF APPEAL
*
HOME FINDERS FOURTH CIRCUIT
INTERNATIONAL, INC. AND *
NATALIE W. GAMBLE STATE OF LOUISIANA
*******
CONSOLIDATED WITH: CONSOLIDATED WITH:
RICKESHIA-RAQUEL DEVALL NO. 2022-CA-0775
VERSUS
HOME FINDERS
INTERNATIONAL, INC. AND
NATALIE W. GAMBLE
APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2021-01910, SECTION “B”
Honorable Marissa A Hutabarat,
******
Judge Rachael D. Johnson
******
(Court composed of Judge Daniel L. Dysart, Judge Rachael D. Johnson, Judge
Karen K. Herman)
Vincent James Booth
BOOTH & BOOTH, A PLC
138 North Cortez Street
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE
Darleen Marie Jacobs
Rene' Daniel Lovelace
Al Ambrose Sarrat
JACOBS, SARRAT, LOVELACE, HARRIS & MATTHEWS
823 St. Louis Street
New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED IN PART; REVERSED IN PART
May 8, 2023
RDJ The instant litigation arises from a rental security deposit dispute. Home
DLD
KKH Finders International, Inc. (“Home Finders”), and Natalie Gamble (“Ms. Gamble”)
(collectively, “Defendants”) appeal the trial court’s July 8, 2022 judgment
awarding Rickeshia-Raquel Devall (“Ms. Devall”) $975.00 for her withheld
security deposit as well as costs and reasonable attorneys’ fees pursuant to the
Lessee’s Deposit Act, codified at La. R.S. 9:3251 et seq. Defendants also appeal
the trial court’s September 8, 2022 judgment in which the trial court granted Ms.
Devall’s motion to assess and attorneys’ fees and costs, awarding Ms. Devall
$6,495.25, and denying Defendants’ motion to assess attorneys’ fees and costs.
Ms. Devall seeks additional attorneys’ fees for the defense of Home Finders’
appeal. After consideration of the record before this Court and the applicable law,
we affirm in part and reverse in part.
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Factual Background
Ms. Devall rented an apartment (the “Property”) from Home Finders located
at 1646 N. Claiborne Avenue in New Orleans, Louisiana, for a twelve-month term
beginning on May 1, 2019. Her monthly rent was $975.00, and her security
deposit was also $975.00. The lease between the parties required any changes to
be made in writing and signed by the parties. It contained the following language
concerning the option for a month-to-month renewal of the lease, the return of Ms.
Devall’s security deposit, and attorneys’ fees:
MONTH TO MONTH RENEWAL If Lessee, or Lessor,
desires that this lease terminate at the expiration of its
term he must give to the other party written notice at least
30 days prior to that date. Failure of either party to give
this required notice automatically renews this lease and
all of the terms thereof except that the lease will be on a
month to month basis.
*****
SECURITY DEPOSIT Upon execution of this lease,
Lessee agrees to deposit with Lessor, the sum of $975.00.
This deposit shall be non-interest bearing and is to be
held by Lessor as security for the full and faithful
performance of the terms and conditions of this lease.
This security deposit is not an advance rental and Lessee
may not deduct portion of the deposit from rent due to
Lessor. This security deposit is not to be considered
liquidated damages. In the event of forfeiture of the
security deposit due to Lessee’s failure to fully and
faithfully perform all of the terms and conditions of this
lease, Lessor retains all of his other rights and remedies.
Lessee does not have the right to cancel this lease and
avoid his obligations hereunder by forfeiting said security
deposit.
Deductions will be made from the security deposit to
reimburse Lessor for the cost of repairing any damage to
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the premises or equipment or the cost of replacing any of
the articles or equipment that may be damaged beyond
repair, lost or missing at the termination of this lease.
Deductions will also be made to cover any unpaid
amounts owed to Lessor for any damage, loss, or charges
occurring prior to termination of this lease and for which
Lessee is responsible. In the event that damages or other
charges exceed the amount of the security deposit, Lessee
agrees to pay all expenses and cost to Lessor. In the
event that there has been a forfeiture of the security
deposit, excess charges shall be paid in addition to the
amount of the said security deposit.
Should there be any damage to the leased premises or
equipment therein, reasonable wear and tear excepted,
caused by Lessee, his family, guests or Agents, Lessee
agrees to pay Lessor when billed the full amount
necessary to replace the damaged premises or equipment.
This includes but is not limited to garbage disposal,
plumbing problems due to improper usage, also water
problems due to improper bath/shower usage.
*****
The leased premises must be returned to the Lessor in as
good a condition as they were at the time the Lessee first
occupied same, subject only to normal wear and tear.
Lessor agrees to deliver the premises clean and free of
trash at the beginning of this lease and Lessee agrees to
return the same in like condition at the termination of this
lease. At the termination of this lease, the Lessee shall be
entitled to an accounting and a return of the security
deposit within 30 days thereafter, providing all of the
obligations of the [L]essee have been fulfilled, including
return of the keys to the Lessor. Lessee shall provide
Lessor with a forwarding address, in writing.
*****
ATTORNEYS FEES [sic] Lessee further agrees that if
an Attorney is employed to protect the rights of the
Lessor hereunder, Lessee will pay the fee of such
attorney. Such a fee is hereby fixed at twenty-five (25%)
percent of the amount claimed or a minimum of $300.00
whichever is greater. Lessee further agrees to pay all
court costs and sheriff’s charges and all other expenses
involved.
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It is undisputed that Ms. Devall was renting the property on a month-to-
month basis upon the expiration of the lease’s initial term. On October 5, 2020,
Ms. Devall initially gave notice of her intent to vacate the Property by calling Ms.
Gamble, who served as the office manager for Home Finders at the time. Ms.
Gamble explained to Ms. Devall that she would need written notice but also made
a notation in her file that Ms. Devall called her. The following day, Ms. Devall
emailed Ms. Gamble and provided thirty days’ written notice of her intent to
vacate the Property and requested that Home Finders return her security deposit.
Many of the remaining facts at issue in the instant litigation are disputed,
and both parties presented considerable evidence concerning these underlying facts
at trial. Ms. Devall alleges that she had “removed [her] furniture and a lot of the
big items” to her new apartment but that she still had personal possessions at the
Property when Hurricane Zeta hit New Orleans on October 28, 2020, which caused
the Property to be without electricity until November 6, 2020. Ms. Devall further
alleges that she checked power outage maps as well as street lights near the
Property to see whether the Property had power. According to Ms. Devall, she had
an account with Entergy New Orleans (“Entergy”) paid her bills via money order,
online, and by going to a store across the street from the Property. Ms. Devall
further alleges that she returned to the Property in the morning on November 6,
2020 to move out the rest of her possessions and that the Property’s electricity
meter was turned off on November 6, 2020 at her request. According to Ms.
Devall, apart from “pictures of [her] chilling in [her] house with the lights on,” she
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does not have receipts or other evidence proving she paid her electricity bills
because she does not have a current account with Entergy and because Entergy
informed her prior to trial that “it would take weeks for [her] to get those receipts
sent to [her].”
Ms. Devall alleges that she went to the Property in the morning on
November 6, 2020 to finish moving out and that she was cleaning the apartment
and gathering her possessions when two Home Finders employees arrived. Ms.
Devall further alleges that she told them that she was cleaning the Property and
that she called Ms. Gamble, who returned her call approximately half an hour later.
According to Ms. Devall, the Home Finders employees left after seeing that she
was cleaning the Property. Ms. Devall alleges that Galen Rogers (“Mr. Rogers”),
her friend and co-worker, assisted her in moving out of the Property by helping her
load her personal items into his truck later that afternoon. According to Ms.
Devall, Mr. Rogers left for work but then returned later that evening to help her
finish moving out of the Property. Ms. Devall further alleges that when they left
the Property for the final time on November 6, 2020, they had cleaned the
apartment and removed the last of Ms. Devall’s possessions from the Property.
Defendants allege that the electricity on the Property was turned off from
June 30, 2020 until November 6, 2020 due to Ms. Devall’s failure to pay her
Entergy bill. Defendants further allege that there was no power outage at or
around the Property between October 28, 2020 and November 6, 2020 due to
Hurricane Zeta. According to Defendants, Ms. Gamble, along with other Home
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Finders employees, went to the Property in the morning on November 6, 2020 and
took thirty-seven photographs of the Property’s overall condition at the time.
Defendants further allege that Ms. Devall still had personal items at the Property,
“there was trash from front to back,” and many surfaces such as a windowsill,
cabinets, and flooring needed cleaning. According to Defendants, other aspects of
the Property, such as ceramic tiles and a door, needed to be repaired. Defendants
allege that Ms. Devall was not at the Property on November 6, 2020 when Ms.
Gamble visited. Defendants further allege that Home Finders employees cleaned
the Property and removed trash as well as Ms. Devall’s remaining possessions
from the Property, putting both in trash bags and placing the trash bags on the
street. According to Home Finders, its employees made necessary repairs so that
Home Finders could rent out the Property again.
It is undisputed that on November 24, 2020, Ms. Gamble wrote, and Home
Finders sent, a letter rejecting Ms. Devall’s request for the return of her security
deposit. In the letter, Ms. Gamble explained that Home Finders would not return
Ms. Devall’s security deposit because:
Trash and debris was left through the entire apartment;
Dirty appliances;
Dirty Cabinets;
Dirty bathroom;
Dirty walls;
Dirty floors;
Trash thrown outside of the apartment instead of being
disposed properly[; and]
Nails in walls
Ms. Gamble also included the following list of expenses, totaling $1,559.00, which
exceeded Ms. Devall’s $975.00 security deposit:
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10 gallons of wall paint @ $28.96
a gallon $289.60
5 gallons of trim paint @ $26.00 a
gallon $130.00
Cleaning supplies $100.00
1 carpenter for []20 hours
@ [$]20.00 per hour $400.00
2 painters for 20 hours @ $16.00
per hour $640.00
TOTAL $1,559.00
Accordingly, Ms. Gamble explained that there was “nothing left to refund.”
Procedural History
On April 26, 2021, Plaintiff filed suit against Defendants, asserting a claim
for her withheld security deposit pursuant to the Lessee’s Deposit Act as well as a
claim under the Louisiana Unfair Trade Practices Act (“LUPTA”), codified at La.
R.S. 51:1401 et seq.
On May 13, 2021, Defendants filed an answer and reconventional demand,
seeking “$584.00 in costs which is over and above [Ms. Devall’s security] deposit”
as well as attorneys’ fees, court courts, and “$10,000[.00] in damages for the loss
of [Home Finders’] reputation.” On July 14, 2023, Defendants filed a first
supplemental and reconventional demand, seeking an additional “$975.00 as rent
due to the fact that the apartment could not be rented for a month and a half.”
The following day, Ms. Devall filed a peremptory exception of no cause of
action (“Defamation Exception”). In her Defamation Exception, Ms. Devall
argued that “Louisiana courts have repeatedly held that defamation actions based
upon statements made in a lawsuit or other judicial proceedings are barred until the
first suit has terminated.” Ms. Devall further argued that Defendants failed to state
a claim for malicious prosecution.
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Defendants filed an opposition to Ms. Devall’s Defamation Exception,
arguing that a representative for Home Finders should be permitted to testify
concerning the alleged damage to Home Finders’ Reputation. Defendants also
sought sanctions, attorneys’ fees, and costs, arguing that Ms. Devall’s allegation
that the Property was without power for several days due to Hurricane Zeta was
made in bad faith.
The trial court heard Ms. Devall’s Defamation Exception on November 17,
2021. In a May 5, 2022 judgment, the trial court sustained Ms. Devall’s
Defamation Exception and dismissed Defendants’ defamation claim. The trial
court also awarded costs to Ms. Devall associated with the filing of her Defamation
Exception.
On March 8, 2022, Defendants filed a second supplemental and amending
reconventional demand, arguing that they were “entitled to sanctions, attorneys[’]
fees and costs pursuant to La. C.C.P. art 863 because [Ms. Devall] based her
original petition upon untruths and fabrications.” Defendants alleged that Entergy
“confirmed” that there were no power outages around the Property due to
Hurricane Zeta and that the power was disconnected at the Property because Ms.
Devall failed to pay her Entergy bill.
On March 25, 2022, Ms. Devall filed a peremptory exception of no cause of
action (“Sanctions Exception”) in response to Defendants’ second supplemental
and amending reconventional demand, arguing that “the procedure for initiating a
claim for [La. C.C.P. art.] 863 sanctions is uniformly by motion, employing
summary procedure, rather than a substantive claim, asserted through a petition for
a damages or a reconventional demand, which is limited through ordinary
procedure.”
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Defendants filed an opposition to Ms. Devall’s Sanctions Exception on
March 29, 2022, arguing that La. C.C.P. art. 863 “clearly gives [D]efendants the
right to request sanctions in their answer.”
The trial court heard Ms. Devall’s Sanctions Exception on April 20, 2022.
In a May 5, 2022 judgment, the trial court sustained Ms. Devall’s Sanctions
Exception without prejudice.
The instant litigation went to trial on May 17, 2022, and the trial court took
the matter under advisement. The parties submitted post-trial memoranda instead
of closing arguments. In a July 8, 2022 judgment, the trial court entered, in part,
judgment in favor of Ms. Devall for the $975.00 security deposit withheld. The
trial court further entered judgment, in part, in favor of Home Finders and against
Ms. Devall for unpaid, prorated rent in the amount of $195.00 for the month of
November 2020. Finally, the trial court dismissed all claims against Ms. Gamble.
On July 21, 2022, Ms. Devall filed a motion to assess attorneys’ fees and
costs pursuant to La. R.S. 9:3253 and the trial court’s July 8, 2022 judgment. Ms.
Devall alleged that counsel had spent 45.95 hours on the instant litigation at a rate
of $350.00 per hour and sought a total of $16,082.50 for attorneys’ fees and costs.
In opposition, Home Finders conceded that, with proof of payment, it would
not object to court courts. Home Finders argued, however, Ms. Devall’s proposed
amount for reasonable attorneys’ fees was excessive. Home Finders further argued
that $1,950.00, or twice the amount of the $975.00 security deposit, would be a
reasonable amount.
On July 25, 2022, Home Finders filed a motion to recuse the trial court
judge, alleging that “the [j]udge’s law clerk was making faces at [Ms. Devall, Ms.
Devall’s] counsel, and at all of [Ms. Devall’s] witnesses; and that the [j]udge
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herself was prejudiced in her evidentiary rulings at trial, and in her opinion, post-
trial.” The trial court judge denied the motion on July 28, 2022 because it was
untimely under La. C.C.P. art. 154.
On August 10, 2022, Home Finders filed a motion to assess costs and
attorneys’ fees. In its motion, Home Finders contended that it was the “prevailing
party” at trial “brought under La. R.S. 9:5252.” Home Finders alleged it
performed 60.9 hours of work in connection with the instant litigation and sought
$22,837.50 in attorneys’ fees, at a rate of $350.00 per hour, as well as $853.00 in
costs.
In opposition, Ms. Devall contended that Home Finders was not entitled to
attorneys’ fees and costs because Home Finders was not the “prevailing party” in
the instant litigation under La. R.S. 9:3252. Ms. Devall further contended that
Home Finders’ motion to assess costs and attorneys’ fees was untimely.
The trial court heard the parties’ motions to assess attorneys’ fees and costs
on August 25, 2022. In a September 8, 2022 judgment, the trial court granted Ms.
Devall’s motion, awarding her a total of $6,495.25 in attorneys’ fees and costs.
With respect to attorneys’ fees, the trial court found that counsel for Ms. Devall
was entitled to 49.95 hours of attorneys’ fees at a rate of $125.00 per hour. The
trial court denied Home Finders’ motion, finding that Home Finders was not the
“prevailing party” in the instant litigation under La. R.S. 9:3252.
Both parties appealed, and this Court consolidated the appeals.
DISCUSSION
Assignments of Error
On appeal, Home Finders raises three assignments of error, arguing that the
trial court erred when it: (1) awarded Ms. Devall $975.00 for the security deposit
10
withheld, along with costs and reasonable attorneys’ fees; (2) “failed to enforce the
clear and unambiguous language of the contract of the lease entered into by the
parties and prorate[d] the rent due to [Home Finders]” for the month of November
2020; and (3) awarded Ms. Devall $6,495.25 in attorneys’ fees and costs and
denied Home Finders’ motion to assess costs and attorneys’ fees. While styled as
an assignment of error, Ms. Devall “seeks an award of additional attorneys[’] fees
incurred in the defense of appeal brought by [Home Finders].” Where appropriate,
we address assignments of error together based on the nature of the issues
presented.
Standards of Review
“The application of the Lessee’s Deposit Act is a question of law subject to
de novo review.” Growe v. Johnson, 20-0143, p. 19 (La. App. 4 Cir. 2/17/22), 314
So.3d 87, 101 (citing Webapps, L.L.C. v. Murdock, 16-0092, pp. 4-5 (La. App. 4 Cir. 6/29/16),196 So.3d 765, 768
). Concerning attorneys’ fees, La. R.S. 9:3253
provides that, “[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.” Thus, the
standard of review for the award of attorneys’ fees under the Lessee’s Deposit Act
is whether the trial court abused its discretion. See Growe, 20-1043, p. 22, 314
So.3d at 102.
“The interpretation of the language of a contract is a question of law subject
to the de novo standard of review on appeal, while factual determinations are
subject to the manifest error standard of review.” Bodenheimer v. Carrollton Pest
Control & Termite Co., 17-0595, p. 7 (La. App. 4 Cir. 2/14/18), 317 So.3d 351, 357 (citing ETI, Inc. v. Buck Steel, Inc., 16-0602, pp. 4-5 (La. App. 4 Cir. 2/1/17),211 So.3d 439, 442-43
). Determinations of fact as well as mixed questions of law
11
and fact are also subject to the manifest error standard of review. Davis v. Nola
Home Constr., L.L.C., 16-1274, p. 7 (La. App. 4 Cir. 6/14/17), 222 So.3d 833, 840;
Growe, 20-0143, p. 7, 314 So.3d at 94.
Ms. Devall’s Security Deposit
In Home Finders’ first assignment of error, Home Finders argues that the
trial court erred when it awarded Ms. Devall $975.00 for her security deposit that
Home Finders withheld. In opposition, Ms. Devall contends that the trial court did
not err when it awarded her the $975.00 for her security deposit. We agree with
Ms. Devall.
“The purpose of the Lessee’s Deposit Act was to give the tenant a remedy
against the arbitrary retention of a security deposit by providing for attorney[s’]
fees where the lessor wrongfully retained the deposit.” Webapps, 16-0092, pp. 4-5,
196 So.3d at 768(citing Curtiz v. Katz,349 So.2d 362, 364
(La. App. 4th Cir.
1977)). La. R.S. 9:3251 provides in pertinent part:
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 a 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 reasons therefor. The tenant
shall furnish the lessor a forwarding address at the
termination of the lease, to which such statements
may be sent.
Additionally, La. R.S. 9:3252 provides in pertinent part:
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A. The willful failure to comply with [La.] 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.
Lastly, La. R.S. 9:3253 states that, “[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.”
As outlined above, a 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.” La. R.S. 9:3251(A). Should a lessor
choose to withhold all of part of a security deposit, the lessor is required to
“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 reasons therefor.” Id. Thus, the itemized statement must outline
damage that is beyond reasonable wear and tear to the property.
Turning to Home Finders’ November 24, 2020 letter, the itemized statement
provided the following expenses for Home Finders’ decision to retain Ms. Devall’s
security deposit: (1) trim and wall paint; (2) cleaning; (3) labor costs to paint the
Property; and (4) labor costs for a carpenter to perform repairs at the Property.
While the existence of “[n]ails in walls” could arguably be addressed during
painting repairs, it is the sole item listed in Home Finders’ November 24, 2020
letter that might require a carpenter. We pretermit any discussion of additional
carpentry expenses Home Finders raised at trial that were not listed in the
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November 24, 2020 letter, including, inter alia, a door that needed to be replaced
and broken ceramic tiles, as this Court requires “categorical specification”
concerning these expenses to “reasonably apprise[]” Ms. Devall “of the nature of
the elements of wear and tear involved” in order to comply with the itemization
requirements of La. R.S. 9:3251. Woodery v. Smith, 527 So.2d 389, 390(La. App. 4th Cir. 1988) (quoting Garb v. Clayton-Kent Builders, Inc.,307 So.2d 813, 815
(La. App. 1st Cir. 1975)). Accordingly, our inquiry focuses on painting expenses,
cleaning costs, and property damage from nails in the walls.
With regards to the paint expenses, Ms. Gamble testified at trial that the
paint costs Home Finders listed in the November 24, 2020 letter were obtained
from receipts dated between November 10, 2020 and November 23, 2020. Mr.
Rice, however, testified at trial that he had two painters start painting the Property
on November 7, 2020. When asked about this discrepancy in timing, Ms. Gamble
testified that “Home Finders does keep paint in [its] warehouse so if we used what
we had in the warehouse and had to purchase more that is what we did.” She
further testified that she checked the SKU numbers of each receipt to ensure that
the itemized expenses in Home Finders’ November 24, 2020 letter were
specifically for the Property. According to Ms. Gamble, Home Finders potentially
made other purchases, as reflected in the receipts, for the Property but declined to
charge Ms. Devall for them.
As to the condition of the walls and trim, Mr. Gamble testified that the walls
needed to be painted because “there was writing on the walls in the bedrooms” and
because “the front rooms look[ed] like there was dirt on them.” According to Mr.
Rice, the trim also needed to be painted because of “dust and dirt . . . on the floor.”
Ms. Gamble testified that on the morning of November 6, 2020, there was “red
14
liquid thrown on the wall in one of the bedrooms,” which is shown on one of the
photographs took that same morning. Ms. Gamble further testified that there were
“holes in the walls where nails had been.”
Ms. Devall testified, however, that the walls at the Property were clean and
free of damage, including damage from nails in the walls. She further testified that
she did not write on the walls. Ms. Devall acknowledged that there had been red
candle wax on one of the walls but that it was “scraped off,” and she testified that
the Property was clean when she moved out of the Property on November 6, 2020.
With regards to cleaning expenses, Mr. Rice testified that he believed
painters for Home Finders purchased cleaning supplies for the Property. Ms.
Gamble testified that Home Finders had receipts for $100.00 worth of cleaning
supplies purchased to clean the Property. As to the Property’s condition, Mr.
Gamble testified that it “looked like holy hell” when he visited the Property with
Ms. Gamble on November 6, 2020. According to Mr. Rice, he cleaned the
Property on November 6, 2020 from late morning until approximately 3:45 p.m.
Mr. Rice testified that he would have seen Ms. Devall and Mr. Rogers on
November 6, 2020 had they been there. He further testified that he and Home
Finders co-workers put Ms. Devall’s remaining items and trash into trash bags and
set both outside of the Property on the street until they could get a trailer to remove
them from the curb the following day.
Ms. Devall, in contrast, testified that she cleaned the apartment on
November 6, 2020 with Mr. Rogers and that the photographs Ms. Gamble took are
not reflective of the condition in which she left the apartment later that same day.
Specifically, Ms. Devall testified that there was no trash or debris at the Property
and that there were no dirty appliances, walls, cabinets, floors, or bathrooms at the
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Property when she moved out of the Property in the evening on November 6, 2020.
Additionally, Ms. Devall testified that she and Mr. Rogers placed trash outside into
trash cans as well as a green basket outside.
This Court has held that costs for painting materials fall outside of the
purview of acceptable reasons for maintaining a lessee’s security deposit because
they are considered ordinary wear and tear. See O’Brien v. Becker, 332 So.2d 563,
564 (La. App. 4th Cir. 1976) (“The receipts attached to defendant’s letter were
primarily for painting materials, which cannot reasonably be considered as
‘unusual wear’ after four years of occupancy.”) Cleaning expenses have also been
considered normal wear and tear expenses that are outside of the scope of
acceptable reasons to withhold a lessee’s security deposit. See, e.g., Growe, 20-
0143, p. 8, 314 So.3d at 95 (explaining that the trial court found “that some of the
reasons listed – such as the general cleaning fee – were the result of wear and tear
not subject to withholding”).
In the trial court’s written reasons for judgment, the trial court found that the
paint and cleaning expenses Home Finders listed in its November 24, 2020 letter to
Ms. Devall were expenses for ordinary wear and tear to the Property. The trial
court further found that Home Finders’ claims concerning damage to the Property
were without evidentiary support. Given the conflicting testimony at trial, we
cannot find that the trial court’s conclusions were manifestly erroneous. In
Provosty v. Guss, this Court was presented with a similar factual scenario to the
instant litigation and affirmed the trial court’s refusal to award the lessor costs for
expenses almost identical to those Home Finders listed in its November 24, 2020
letter to Ms. Devall. 350 So.2d 1239, 1242 (La. App. 4th Cir. 1977). This Court
reasoned:
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The record supports the trial judge’s refusal to find lessee
liable with regard to lessor’s claim for costs of cleaning
the kitchen floor, stove and cabinets; of replastering and
painting caused by nail holes; and of cleaning the front
porch. Although a repair man employed by lessor
testified concerning the poor condition of the premises,
his testimony was rebutted by lessee and lessee’s friend
who testified that they thoroughly cleaned the apartment,
appliances, and front porch. According to lessee’s friend,
the premises were left cleaner than when [the lessee]
commenced his tenancy. The trial judge simply accepted
lessee’s version of the condition of the rented premises
and rejected lessor’s version. Findings based on a
credibility determination, absent manifest error, will not
be disturbed. We find no such error.
Id. Here, the trial court heard testimony from Ms. Devall and Mr. Rogers, that the
Property, including its walls, was clean and free of damage when they left on
November 6, 2020. The trial court also heard testimony from multiple Home
Finders employees that the Property was not clean and damaged in places.
Accordingly, we find no manifest error in the trial court’s decision to accept the
testimony of Ms. Devall and Mr. Rogers to conclude that Home Finders was not
entitled to retain Ms. Devall’s security deposit based on the reasons Home Finders
provided in its November 24, 2020 letter to Ms. Devall.
Attorneys’ Fees
Home Finders contends that the trial court erred when it awarded Ms. Devall
reasonable attorneys’ fees and costs. Home Finders further contends that the trial
court erred when it denied Home Finders’ request for attorneys’ fees and costs.
Ms. Devall argues that the trial court did not err when it awarded Ms. Devall
reasonable attorneys’ fees and costs and denied Home Finders’ motion to assess
attorneys’ fees and costs because Ms. Devall, and not Home Finders, was the
“prevailing party” in the instant litigation under La. R.S. 9:3252. Ms. Devall also
seeks additional attorneys’ fees and costs for the defense of Home Finders’ appeal.
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We conclude that the trial court erred when it awarded Ms. Devall attorneys’
fees absent a finding that Home Finders willfully failed to comply with La. R.S.
9:3251. In the trial court’s reasons for judgment, the trial court expressly found
that Home Finders did not willfully fail to comply with La. R.S. 9:3251 because
“Home Finders did provide an itemized letter within thirty (30) days of Ms. Devall
vacating the premises.” As outlined above, the plain language of the Lessee’s
Deposit Act provides the trial court with the “discretion [to] award costs and
attorneys’ the prevailing party.” La. R.S. 9:3253. The “prevailing party” must be
for “an action brought under [La.] R.S. 9:3252,” which governs a party’s willful
failure to return a security deposit. Id.
In Provosty, this Court declined to find that the lessor, even though the
lessor’s itemized letter included costs that the trial court declined to award,
willfully failed to comply with the Lessee’s Deposit Act. 350 So.2d at 1244. Accordingly, the Provosty Court concluded that the lessee’s argument that the lessee was entitled to attorneys’ fees and costs was without merit.Id.
In light of
the plain language of the Lessee’s Deposit Act and the factual similarities between
those at issue in Provosty and the instant action, we agree with the trial court that
Home Finders did not willfully fail to comply with La. R.S. 9:3251 and conclude
that the trial court erred when it awarded Ms. Devall costs and attorneys’ fees
absent such a finding.
We pretermit discussion of Home Finders’ argument on appeal that the trial
court erred when it failed to award costs and attorneys’ fees to Home Finders based
on the lease provision allocating attorneys’ fees to Ms. Devall for failure to comply
with Rule 1-3, Uniform Rules, Courts of Appeal.
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Proration of Rent for November 2020
Home Finders contends that the trial court erred “when it failed to enforce
the clear and unambiguous language of the contract of the lease” between the
parties when the trial court prorated the rent due to Home Finders for November
2020. Home Finders further argues that “[t]here is no language in the lease that
provides for a proration of rent, and [Home Finders] clearly did not agree to such a
proration,” as all “changes must be agreed upon in writing” and signed by the
parties in accordance with the terms of the lease.
Ms. Devall did not appeal the trial court’s proration of rent but argues “that
the award was improper, first because the lease was not reconducted and second
because [Home Finders] failed to demonstrate that it sought to mitigate its
damages.” We agree with Home Finders that the trial court erred when it prorated
the rent due to Home Finders for November 2020.
“Contracts have the effect of law and may be dissolved only through the
consent of the parties or on grounds provided by law. Contracts must be
performed in good faith.” La. Civ. Code art. 1983. “Interpretation of a contract is
the determination of the common intent of the parties.” La. Civ. Code art. 2045.
“When the words of a contract are clear and explicit and lead to no absurd
consequences, no further interpretation may be made in search of the parties’
intent.” La. Civ. Code art. 2046. “Each provision in a contract must be interpreted
in light of the other provisions so that each is given the meaning suggested by the
contract as a whole.” La. Civ. Code art. 2050.
As outlined above, the initial 12-month term for the lease between the
parties ran from May 1, 2019 until the last calendar day of April 2020. The lease
further provided that, absent a thirty-day written notice prior to the expiration of
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the lease’s initial term, it would automatically renew on a month-to-month basis.
Accordingly, the lease was continuing on a month-to-month basis when Ms. Devall
gave written notice of her intent to vacate on October 6, 2020, which was untimely
to terminate the least on October 31, 2020 but sufficient notice to terminate the
lease on November 30, 2020.
“A court is not authorized to alter to make new contracts for the parties. A
court’s role is only to interpret the contract.” Clovelly Oil Co. v. Midstates
Petroleum Co., 12-2055, p. 12 (La. 3/19/13), 112 So.3d 187, 196. As there was no
provision allowing for proration of rent in the lease between the parties, nor was
there any mutually-agreed upon changes in writing signed by the parties
concerning the proration of rent, we find that the trial court erred when it found
Ms. Devall liable for only a portion, rather than the entirety, of rent due to Home
Finders for November 2020. Accordingly, we award Home Finders $975.00 for
the month of November 2020.
DECREE
For the foregoing reasons, we affirm the trial court’s July 8, 2022 judgment
awarding Ms. Devall $975.00 for her withheld security deposit and dismissing all
claims against Ms. Gamble. We reverse the trial court’s July 8, 2020 judgment
awarding Ms. Devall costs and attorneys’ fees. Further we reverse the trial court’s
July 8, 2022 judgment awarding Home Finders $195.00 in prorated rent for
November 2020 and award Home Finders $975.00 in rent for November 2020. We
affirm the trial court’s September 8, 2022 denying Home Finders’ motion to assess
attorneys’ fees and costs. We reverse the trial court’s September 8, 2022 judgment
granting Ms. Devall’s motion to assess attorneys’ fees and costs.
AFFIRMED IN PART; REVERSED IN PART
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