Major v. Hall

• Decision Date: 30 June 1971
• Docket Number: No. 8466,8466
• Citation: 251 So.2d 444
• Parties: Willie MAJOR v. Marvin E. HALL et ux.
• Court: Court of Appeal of Louisiana — District of US

Page 444

251 So.2d 444

Willie MAJOR v. Marvin E. HALL et ux.

No. 8466.

Court of Appeal of Louisiana, First Circuit.

June 30, 1971.

Rehearing Denied Sept. 2, 1971.

Writ Granted Oct. 21, 1971.

Johnnie A. Jones, Baton Rouge, for appellant.

G. Emitte Core, Core & Mills, Baton Rouge, for appellee.

Before LANDRY, ELLIS and BLANCHE, JJ.

BLANCHE, Judge.

Plaintiff, Willie Major, has brought this devolutive appeal from a judgment in favor of defendants, Marvin E. Hall and Estelle A. Hall, dismissing the rule nisi taken by plaintiff to have defendants show cause why they should not be enjoined from disturbing plaintiff's use of certain premises on which plaintiff claims to have a valid and binding lease.

On March 12, 1969, defendants, who were owners in community of a certain parcel of land and an automobile service station located thereon, leased the premises to plaintiff for ten years at a monthly tental of $190. Three provisions of the lease are pertinent to this litigation:

'Lessee may not sublet all or any part of the premises without the written consent of Lessors * * *.

'* * * Lessors agree not to exercise any landlord's remedies against Lessee by reason of any default unless and until Lessor shall have given to Lessee written notice by registered mail of the default and unless Lessee shall have failed to remedy such default within a period of thirty (30) days from the giving of such notice.

'No waiver by either party * * * of any breach of any of the covenants or conditions herein contained to be performed by the other party, shall be construed as a waiver of any succeeding breach of the same or any other covenant or condition.' (Agreement of Lease, Record, p. 11)

For fifteen years before his lease with defendants, plaintiff operated on these premises a service station, called 'Willie Major's Esso Service,' under a lease with the Humble Oil and Refining Company. Sometime during this period, plaintiff made an agreement with his on-and-off employee, Cleon Knighteen, whereby Knighten would operate the service station and pay plaintiff a fixed monthly sum. Plaintiff intended that Knighten run the service station until his son finished college and took over the business. After March 12, 1969, the effective date of the lease with defendants Knighten continued to operate the service station; he collected the revenues, bought the gasoline, paid the bills, and made monthly payments of $285 to plaintiff. During this period plaintiff did not operate the business, leaving the management to Knighten and making only infrequent visits to the station. Plaintiff received the monthly payments from Knighten and paid the $190 rentals to defendants; he also kept a key to the premises. In March, 1969, plaintiff purchased $7,036.20 worth of accessories (tires, tubes, and batteries) from Humble; the accessories were subsequently sold at the service station, some by the plaintiff and some by Knighten; plaintiff paid for the accessories and was obligated to Humble for them.

Learning of the agreement with Knighten and considering it to violate the nosubletting-without-consent clause of the lease, defendant (Marvin E. Hall) sent a registered letter to plaintiff putting him in default because of the alleged subletting, and notifying him that the lease would be terminated unless the default was cured within thirty days. Defendant sent the letter to plaintiff's mailbox, but plaintiff did not pick up the letter, and it was returned to defendant. Defendant did not attempt to redeliver the letter at that time. For the next ten months, defendants did not otherwise attempt to inform plaintiff of the alleged default or of their intention to terminate the lease, although defendants regularly received the monthly rental payments from plaintiff, often in person from plaintiff at his other place of business.

On April 1, 1970, defendant leased the same premises to Knighten for a monthly rental of $230. Defendant and Knighten changed the locks on the premises, thereby effectively evicting plaintiff. On April 16, 1970, defendant sent plaintiff a certified letter informing him that defendants considered plaintiff's arrangement with Knighten and his failure to make rental payments on time to be violations of the lease; the letter further put plaintiff in default and notified him to vacate the premises and to refrain from obstructing the use of the premises by Knighten, the present lessee; a copy of the unreceived letter of May 29, 1969, was enclosed. From March, 1969, to March, 1970, many of plaintiff's rental payments to defendants were late, and some of his checks were returned because of insufficient funds. Plaintiff, however, eventually made good all rental payments except the payment due on March 12, 1970, which defendant returned to plaintiff with the letter of April 16, 1970.

Plaintiff brought this suit alleging that defendants wrongfully evicted him, because the arrangement with Knighten was not a sublease or, alternatively, because defendants did not comply with the notice and grace-period provisions of the lease and therefore were not entitled to exercise their landlords' remedies, or, alternatively, because defendants did not take the proper legal steps to evict him. Defendants, on the other hand, contend that plaintiff's arrangement with Knighten was a sublease without their consent, that this violated the lease and entitled them to terminate the lease, that defendant's letters of May 29, 1969, and April 16, 1970, satisfied the notice and grace-period requirements of the lease, and that defendants were therefore entitled to terminate the lease with plaintiff and lease the premises to Knighten.

The trial court dismissed plaintiff's suit, finding that plaintiff's agreement amounted to a sublease, that defendant's letter of May 29, 1969, substantially complied with the notice requirements of the lease, that defendants were therefore privileged under the waiver clause in the lease to terminate the lease at any time thereafter, and that defendants' termination of the lease in April, 1970, was not unreasonable; the trial court further found that defendants were justified in leasing the premises to Knighten before taking legal steps to evict plaintiff, because plaintiff's repeated failure to make the monthly rental payments on time violated the lease and evidenced plaintiff's inability and unwillingness to perform under the contract.

The legality of defendants' position depends upon four legal questions, each a critical step in defendants' claim that plaintiff's agreement with Knighten breached the lease and entitled them to evict the plaintiff, each requiring an answer in favor of defendants to justify the eviction: (1) Was plaintiff's agreement with Knighten a sublease and therefore a breach of the lease? (2) Did defendant's letter of May 29, 1969, fulfill the notice provisions of the lease? (3) Did defendants' inaction between May 29, 1969, and April 1, 1970, together with their acceptance of the rental payments from plaintiff, constitute a waiver of the breach in light of the waiver clause in the lease? (4) Was defendants' leasing of the premises to Knighten before taking any legal steps to evict plaintiff a legal method of eviction? Defendants' eviction would be unlawful if plaintiff's agreement with Knighten was not a sublease; or if defendant's letter of May 29, 1969, was not proper notice of default; or if defendants' conduct between May 29, 1969, and April, 1970, waived the subletting breach or the notice of default; or if defendants, by leasing the premises to Knighten, improperly exercised their landlords' remedies.

We find as follows: (1) that plaintiff's agreement with Knighten was a sublease; (2) that the letter of May 29, 1969, satisfied the notice requirements of the lease; (3) that defendants' silence and acceptance of plaintiff's rental payments from May 29, 1969, to April, 1970, constituted a waiver of plaintiff's breach and a waiver of the notice of default given in the letter of May 29, 1969; and (4) that defendants' leasing of the premises to Knighten was an unlawful method of exercising their landlords' remedies. Thus, although plaintiff's breach of the lease and defendant's letter of May 29, 1969, entitled defendants to terminate the lease and evict the plaintiff, their terminating the lease and evicting plaintiff by leasing the premises to Knighten and locking plaintiff out were unlawful for two reasons: first, defendants' inaction and acceptance of plaintiff's rental payments vitiated the effect of the letter of May 29, 1969, and made it necessary for defendants to place plaintiff in default again before exercising any landlords' remedies; and, second, the actual exercise of the landlord's remedy of eviction must be accomplished by specified legal steps, not simply by leasing the premises to someone else.

At the outset, we should point out that the letter of April 16, 1970, cannot serve to satisfy the notice requirements of the lease and thereby validate defendants' eviction of plaintiff, because the lease calls for notice of default and a thirty-day grace period before exercising any landlord's remedies, yet the eviction Preceded the letter of April 16, 1970.

Deciding that ...