319 So.3d 926
La. Ct. App.2021Background
- Lease executed Jan. 19, 2017: Nuccio Family, LLC (lessor) leased 418 Bourbon St. to Cooties Corporation (lessee).
- April 2020: Cooties failed to pay April rent; Nuccio sent demand warning of late fees and possible termination if rent not paid within five business days.
- May–July 2020: Cooties made several partial payments; Nuccio expressly imputed those payments to earlier months and continued to demand full balances; Nuccio also sent certified notice (July 23) citing three lease violations (nonpayment, denied access, Vieux Carré Commission violations).
- Cooties did not satisfy the balance by the deadline (final partial payment Aug. 10). Nuccio filed an eviction rule Aug. 12, 2020; trial court ordered eviction Sept. 22, 2020 and awarded attorney’s fees and costs. Cooties appealed.
- Court of Appeal affirmed: lease was not modified, no landlord custom of accepting late payments that altered the contract, and judicial-control doctrine did not apply.
Issues
| Issue | Plaintiff's Argument (Nuccio) | Defendant's Argument (Cooties) | Held |
|---|---|---|---|
| Whether lease required a written modification | Nuccio: no modification occurred; demanded timely rent and imputed partial payments to earlier months | Cooties: lease was effectively modified (or waived) by acceptance of late/partial payments, and oral modification need not be written | Held: No modification. Appellee expressly imputed payments, repeatedly demanded full rent, and provided statutory notice; lease not altered. |
| Whether it was inequitable for lessor to accept late payments then evict (lull/estoppel) | Nuccio: did not lull tenant; warned promptly and insisted on punctuality and late fees | Cooties: acceptance of late payments over time misled it into a false sense of security; eviction is inequitable | Held: No. Unlike Versailles, Nuccio did not customarily accept late payments without demand; tenant was on notice and not lulled. |
| Whether custom or waiver (or judicial control) barred eviction | Nuccio: no longstanding custom or waiver; failure was material and compounded by other lease violations and denied access | Cooties: landlord’s conduct (accepting late payments) established a custom/waiver or otherwise the court should exercise judicial control | Held: No custom or waiver. Judicial-control doctrine inapplicable because breaches were not minor or inadvertent; eviction affirmed. |
Key Cases Cited
- Marks v. Deutsch Constr. Co., 258 So. 2d 676 (La. App. 4th Cir. 1972) (permitting imputation of partial payments to earlier rent)
- Versailles Arms Apartments v. Pete, 545 So. 2d 1193 (La. App. 4th Cir. 1989) (regular acceptance of late rent can alter contract punctuality requirements)
- Olivier v. Roland, 888 So. 2d 998 (La. App. 4th Cir. 2004) (isolated late payments do not establish a custom waiving strict enforcement)
- Ergon, Inc. v. Allen, 593 So. 2d 438 (La. App. 2d Cir. 1992) (judicial-control doctrine applies where lessee’s breach is minor, in good faith, and promptly remedied)
- 429 Bourbon St., LLC v. RMDR Invs., Inc., 230 So. 3d 256 (La. App. 4th Cir. 2017) (declining judicial control where lessee repeatedly underpaid and failed to comply)
- Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 193 So. 3d 1110 (La. 2015) (standard for manifest-error review on factual findings)