94-0888 La.App. 4 Cir. 11/30/94, Capone v. Kenny

• Decision Date: 30 November 1994
• Citation: 646 So.2d 510
• Parties: 94-0888 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 510

646 So.2d 510

94-0888 La.App. 4 Cir. 11/30/94

Kenneth J. CAPONE, v. John E. KENNY and Edna Kenny.

No. 94-CA-0888.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 30, 1994.

John E. Kenny, New Orleans, in pro. per. for defendants-appellants, John E. Kenny and Edna Kenny.

Randy Opotowsky, Odom B. Heebe, Jr., Steeg & O'Connor, New Orleans, for plaintiff-appellee.

Before SCHOTT, C.J., and BYRNES and WALTZER, JJ.

[94-0888 La.App. 4 Cir. 1] BRYNES, Judge.

Defendants/lessees, John E. Kenny and Edna M. Kenny (hereinafter "the Kennys"), proceeding pro se, appeal from a rule for eviction granted in favor of plaintiff/lessor, Kenneth J. Capone (Capone). We affirm.

The Kennys assigned as error the following:

(1) The premature trial of the Rule for Possession.

(2) The failure of the trial court to hear the Kennys defense of abuse of rights.

(3) The granting of judgment during the term of the lease.

The first and third of these assignments of error are in reality both objections of prematurity. A review of the transcript of the colloquy held among the trial judge, counsel for Capone, and Mr. Kenny representing himself pro se shows that the trial judge recognized that Capone's action was premature. Capone wanted the Kennys to vacate the premises at the end of the month of March, 1994 at the termination of their month to month lease. The Kennys acknowledge that they had only an oral month to month lease with Capone.

However, Capone did not wait until the end of March to file his rule to evict the Kennys. Capone does not contest the fact that the Kennys were paid through the end of March. Summary eviction proceedings would therefore, not be timely until the end of March. LSA-C.C.P. art. 4731.

However, the trial judge explained to Mr. Kenny that if he insisted on his technical objection to the timing of Capone's action that he could not defeat it, but at best could only postpone it until the end of the month. The transcript [94-0888 La.App. 4 Cir. 2] indicates that Mr. Kenny acquiesced in the decision to render judgment on that day effective at the end of the month, rather than going to the trouble and expense of coming back again at the end of the month. We find that the Kennys effectively waived any objection they may have had to the timing of the hearing and judgment against them.

In their answer the Kennys asserted an Abuse of Rights Doctrine defense against Capone, alleging that:

1. Capone was evicting the Kennys because they filed a claim with plaintiff's insurer; and

2. Capone discriminated against the Kennys by charging the Kennys more per square foot than other tenants in the same building.

It was error for the trial court to decline to consider the Kennys' defense of abuse of right. The transcript shows that the trial court refused to consider any issue but payment or non-payment of rent. The trial court insisted that the issue of abuse of right by retaliatory eviction be brought in a separate proceeding. This was error.

Eviction is a summary action which involves the single issue of whether the owner is entitled to possession of the premises. Mascaro v. Hudson, 496 So.2d 428, 429 (La.App. 4 Cir.1986). The Tenant or occupant cannot defeat the owner's right to summary eviction by injecting foreign issues into the case in an attempt to convert it into an ordinary proceeding. Id. The only [94-0888 La.App. 4 Cir. 3] affirmative relief that can be granted is the right to remain in the premises. ¹ Id. These jurisprudential rules, however, do not preclude a tenant from asserting defenses which are germane to the question of the landlord's right of possession. Id. The Abuse of Right Doctrine can be asserted as a defense in a summary eviction proceeding. Id.

We find no cases where a lessor was prevented from terminating a lease upon the expiration of its term based on the Abuse of Right Doctrine. The Doctrine appears only as dicta in such cases as Mascaro and Illinois Cent. Gulf R. Co. v. International Harvester Co., 368 So.2d 1009, 1013-1014 (La.1979). The Doctrine is invoked sparingly in Louisiana. Illinois Central, 368 So.2d at 1014; McInnis v. McInnis, 618 So.2d 672, 676 (La.App. 2 Cir.1993). It has never been successfully invoked in a landlord-tenant situation. We suspect that the reason for this is that there appears to be little need for the Doctrine in Louisiana:

More importantly, cases dealing with this civilian concept typically concern the limited situation involving the holder of a contractual right [emphasis added] and a litigant against whom that right has been directly [emphasis original] but nonetheless, it is alleged, harmfully exercised. [Emphasis original]

McInnis, at 676.

[94-0888 La.App. 4 Cir. 4] In the contractual situations to which the McInnis court indicates the Doctrine of Abuse of Right should normally be limited, it should be sufficient to employ the concept of "good faith" which has a time honored place in the law of Louisiana. See LSA-C.C. art. 1759 and its antecedents. Granted, "good faith" does not sound nearly as impressive and erudite as the "Doctrine of Abuse of Right", but its very simplicity and familiarity to the lawyers and courts of this state mean that it is less likely to result in legal mischief. That the courts of this state have probably already tacitly recognized this fact is demonstrated by the fact that the Doctrine of Abuse of Right is often discussed, but rarely, if ever, applied!

As we recognized in Mascaro: "It is clear under Louisiana law, that the owner, at the expiration of a lease,...