1. Counsel the client or potential client.

• Identify the client’s objective. Is the goal to get more time to move out or to defeat the eviction entirely?
• Explain the possible eviction timeline and the eviction process.
• Advise on possible exceptions and defenses.
• Advise on the likelihood of success.
• Explain the possibility of being responsible for court costs if eviction prevention is unsuccessful.
• Explain the appeal process and requirements.

2. Consider filing an affirmative suit in advance of the landlord’s eviction suit.

• Is bankruptcy a viable option?
• Can a case be brought in state or federal court? To secure an injunction preventing the eviction or to argue for a dismissal or a stay on the basis of lis pendens, the case should be filed before the landlord files the eviction case. However, it can be filed after a notice to vacate has issued.
  • Failure to accommodate tenants with disabilities1  or evictions that are discriminatory based on protected class status may violate the federal Fair Housing Act.2
  • Failure to complete pre-eviction administrative process gives rise to a § 1983 cause of action for certain subsidized tenants.3
• Does your client have a potential ownership interest in the property that requires litigation?
  • Consider filing an affirmative lawsuit to quiet title or contest ownership in state court before the eviction lawsuit is filed to secure an injunction or lis pendens exception.

3. Explore settlement.

• Ensure that any pre-trial negotiations are consistent with defense strategies and client objectives.4
  • Because Section 8 voucher holders and other subsidized tenants evicted for a serious lease violation can lose their assistance or be barred from federally subsidized housing in the future, settlement may be a desirable option for some clients.5
• Negotiate in light of the landlord’s position and concerns.
  • What is the landlord’s price (rent, costs) for dismissal of eviction?
  • If eviction is for “no cause”, will the landlord agree to an extension of the move-out date and under what conditions?
  • If the tenant violated the lease, is the landlord willing to dismiss if proper terms are negotiated?
  • Is the landlord concerned that the eviction may have been procedurally defective? If so, will the landlord agree to a consent judgment with an extended executory date to avoid the need to refile the eviction?
• To be enforceable, settlement agreements must be in writing or recited and recorded in open court.6  It is wise to pre-draft a consent judgment so that it contains language specifying that there are no findings of fact and no judgment of eviction. It is also important to ensure that the judgment says “consent” and that the fact that it is a consent judgment is reflected on the record, if in a court of record.

4. Analyze client’s potential exceptions and affirmative defenses.7

• Review the lease and notices.
• Review applicable regulations if the tenant resides in federally subsidized housing.8
• Note that even where an exception or defense may not defeat an eviction, it may provide settlement leverage.9

5. Answer the Landlord’s petition.10

• Apply for in forma pauperis status by filing an Application to Proceed In Forma Pauperis if appropriate.11
• To preserve the right to a suspensive appeal, the answer must be verified (i.e., sworn to by client before notary) and must specially plead affirmative defense(s) entitling tenant to retain possession.12
• Generally, the judicial control doctrine should be pleaded, if applicable, because it is indisputably an affirmative defense.
• File the verified answer with the clerk of court prior to trial and serve the landlord.13

6. Prepare for Trial.

• Remind the tenant that failure to appear in court will likely result in an eviction judgment.14
• If the eviction has been filed in a court of record, draft direct and cross examinations, prepare exhibits to submit into the record, and review possible evidentiary issues.15
• Identify evidence (witnesses and documents) needed for trial.
• Issue subpoenas or notices for discovery to obtain evidence needed for proof of defenses.
• Apply for continuances if evidence cannot be timely produced for trial.16
• Preliminarily assess any potential grounds on which an eviction judgment (if ordered) could be appealed.
• Depending on the forum, inform client that a suspensive appeal of a judgment of eviction will likely require posting a bond.17

Explain that the landlord may seek eviction on new grounds during appeal.18

• 1Eviction may be proper if the reasonable accommodation was requested after landlord filed a petition of eviction. See Guste Homes Resident Mgmt. Corp. v. Thomas, 2020-0110 (La. App. 4 Cir. 07/29/20), 302 So. 3d 1181; see also Mazzini v. Strathman, 2013-0555 (La. App. 4 Cir. 04/16/14), 140 So. 3d 253 (upholding eviction where tenant failed to prove a disability in accordance with “the Fair Housing Amendments Act of 1988 or the ADA, or that the landlord knew of her alleged disabilities”).
• 242 U.S.C. § 3601, et seq.
• 3For further discussion, see Sections 1.7 (traditional public housing), 2.8–2.9 (Section 8), 3.1.4 (multifamily programs), 3.2.4–.5 (rural rental housing) of the chapter on Federally Subsidized Housing.
• 4It is highly advisable to get any settlement agreements in writing.
• 5Sometimes a consent judgment is improperly treated as an eviction, so make sure the judgment language serves the needs of the subsidy recipient.
• 6La. C.C. art. 3072.
• 7For further discussion, see Section 4 (exceptions) and Section 5 (affirmative defenses).
• 8For more complete discussion of these tenants’ rights, see the chapter on Federally Subsidized Housing.
• 9Tenant may have a diminution of rent claim. See La. C.C. art. 2715.
• 10If you choose not to file a verified answer stating affirmative defenses, be sure you have advised client that they will be waiving their right to suspensively appeal the eviction.
• 11For more complete information on this process, see this manual’s chapter on in forma pauperis procedures.
• 12La. C.C.P. art. 4735.
• 13There is no statutory timeline for filing as long as it is prior to trial. Keep in mind that because most evictions are in a court of limited jurisdiction, that the uniform rules applicable in district court do not apply.
• 14La. C.C.P. art. 4732.
• 15As a practical matter, eviction hearings may be more informal. You should insist on the formalities of a trial if there is any possibility you will need to appeal from a court of record.
• 16In most cases, there will not be enough time to issue subpoenas. A motion to the court for a continuance due to the necessity of the subpoena and explanation of the nature of the evidence and its importance may be required.
• 17The in forma pauperis affidavit does not forgo the requirement of a suspensive appeal bond in a motion for suspensive appeal. La. C.C.P. art. 5185(B).
• 18Arguably, res judicata prevents the landlord from bringing an action to evict for other lease violations that were known at the time of the first eviction judgment, but that the landlord did not raise. La. R.S. 13:4231.

7. Conduct trial and preserve the record for appeal, if in a court of record.1

• Consider approaching the landlord pre-trial for settlement purposes. Some judges will allow, or even encourage, a pre-trial conference with the court.
• Ensure that the court tries any exceptions before the merits and insist on a ruling on the exceptions.2
• If the landlord attempts to introduce evidence of lease violations other than those raised in the rule for possession, object based on improper expansion of the pleadings.3  A landlord’s attempt to raise bases for eviction at trial that have not been noticed or that were improperly noticed is a statutory and due process violation.4
• If the landlord has not proven a right to relief after presentation of his evidence (e.g., has not proven the existence of the lease and the tenant’s breach of the lease obligations), move for dismissal under La. C.C.P. art. 1672(B) after the landlord closes his case in chief.
• Present evidence necessary to support the tenant’s defenses; make a proffer of evidence if the court refuses to admit the evidence or allow the testimony.5
• Preserve all available grounds for appeal.
• If in a court of record, make sure to make contemporaneous objections and get all necessary exhibits admitted into evidence through a qualified witness.
• Remember that argument of counsel is not evidence.6

• 1Justice of the peace courts are not courts of record, and appeal is not based on the record below. As such, hearings tend to observe fewer formalities.
• 2Many judges forgo this requirement, so it is the advocate’s responsibility to argue the correct application of the law.
• 3La. C.C.P. art. 1154. The court has authority to grant the landlord additional time to amend the petition.
• 4200 Carondelet v. Bickham, 2017-0328 (La. App. 4 Cir. 10/25/17), 316 So. 3d 955, 962 (reversing eviction based on landlord’s attempt to raise new lease violations on the morning of trial); JoAnn Place v. Ricard, 2022-0456 (La. App. 4 Cir. 12/27/22), 356 So. 3d 518, 521, 528-29 (reversing eviction where landlord raised expiration of lease at trial, but had never noticed lease expiration as a reason for eviction).
• 5La. C.C.P. art. 1636.
• 6Hous. Auth. of New Orleans v. King, 2012-1372 (La. App. 4 Cir. 6/12/13), 119 So. 3d 839, 842.

8. Motion for New Trial

• A motion for new trial is filed in the original eviction lawsuit, proceeds summarily, and goes before the judge that originally heard the eviction.1
  • A tenant may file a motion for a new trial in a justice of the peace court, not to be confused with an appeal by trial de novo in parish or district court.2 ​​​​​
• A motion for a new trial must be filed within 7 days of the mailing or service of the notice of judgment.3  However, to use a motion for a new trial to halt the execution of the eviction judgment, it should be filed as soon as possible (ideally within 24 hours).
• A motion for a new trial can be granted on peremptory or discretionary grounds.4
• Common grounds for a motion for new trial include a medical emergency or death in the family that prevented appearance in court and new evidence discovered after the trial.

9. Appeals

• A justice of the peace eviction is appealed by trial de novo in parish or district court.5
  • Because the trial is de novo, the record below, if there is one, is immaterial, and the parish or district court does not defer to the factual findings of the justice of the peace.
  • Though the trial de novo offers the tenant a “second bite at the apple,” as a practical matter, advocates should file a petition for trial de novo only where there is a strong exception or case on the merits. Losing at the trial de novo stage may result in significant costs incurred by an in forma pauperis litigant.
  • Special considerations and jurisdictional differences apply regarding the delay for appealing an eviction from a justice of the peace court.6  As a practical matter, if a tenant gets a 24-hour eviction judgment from a justice of the peace, the appeal must be filed immediately in order to get a stay order signed before the 24 hours runs.
• A city or parish court eviction is appealed to the court of appeal.7
  • Appeal is based on the record below.
  • Errors of law are typically reviewed under a de novo standard of review. By contrast, factual findings are reviewed under a manifest error standard.8
  • If the trial court admitted inadmissible evidence, thus “tainting” the factfinding process, the court of appeal can review the matter de novo after excluding the inadmissible evidence.9
  • A timely objection must have been made at trial in order to assign error on appeal.
  • Because a self-represented tenant is unlikely to properly object, it may be difficult to successfully appeal an eviction judgment rendered against a self-represented tenant.
  • A motion for suspensive appeal of an eviction must be filed within 24 hours of the judgment of eviction.10
  • Although an eviction judgment may be appealed devolutively, that remedy is of limited utility to most residential tenants for whom the leased unit is their home. However, a successful devolutive appeal could give rise to a wrongful eviction action.11  Devolutive appeal is also justified where a tenant may be harmed by an eviction on their record.12

  • A suspensive appeal requires posting a bond within 24 hours of judgment to protect the landlord against damage sustained as a result of the appeal.13

  10. Petition for Nullity

  • A tenant has the right to post a surety bond or cash bond, though most residential tenants cannot afford either.
  • Monthly rent payable as it becomes due has been ruled an appropriate alternative bond for an indigent tenant.14
  • If a bond is set prohibitively high, contest that order through a supervisory writ with a request for expedited consideration.15
  • Advise the client that if the court orders payment of rent to the landlord or into the court registry that failure to do so may result in dismissal of the appeal.
    • A petition for nullity may be available for a vice of form if a tenant was not properly served with the Rule for Possession16  or the court did not have subject matter jurisdiction over the eviction because it involved a title dispute over immovable property.17
    • A petition for nullity may be available for a vice of substance or if the eviction was obtained through fraud or ill practices.18
    • An action for nullity of judgment for a vice of substance is an ordinary proceeding and typically must be brought by petition, not motion.19  However, the petition may be able to be brought in the same proceeding.20  By contrast, a vice of form gives rise to an absolute nullity, and such a judgment may be collaterally attacked in a summary proceeding raised by contradictory motion.21
    • To halt an eviction by filing a petition for nullity, the tenant should immediately apply for a temporary restraining order and preliminary injunction.

• 1If there is an option to do a walk-through to the judge or Justice of the peace, this is preferred for immediate signature.
• 2La. C.C.P. art. 4925(B).
• 3La. C.C.P. arts. 1974, 4907(B).
• 4La. C.C.P. arts. 1972, 1973, 4907(A).
• 5La. C.C.P. art. 4924.
• 6For more information on justice of the peace evictions, see Section 3.
• 7La. C.C.P. art. 5001. Appeal must be made without 10 days of the date of judgment or service of the notice of judgment, if such is necessary. La. C.C.P. art. 5002(A). A timely filed motion for a new trial delays the commencement of the time to appeal until the trial court rules on the motion. La. C.C.P. art. 5002(B).
• 8Rosell v. ESCO, 549 So. 2d 840, 844 n. 2 (La. 1989); Gonzales v. Xerox Corp., 320 So. 2d 163, 165–66 (La. 1975); Cottingim v. Vliet, 08-1263, p. 4 (La. App. 4 Cir. 8/12/09), 19 So. 3d 26, 28–29.
• 9Urban Homeowners’ Corp. v. Abrams, 1996-1237, p. 4 (La. App. 4 Cir. 3/26/97), 692 So. 2d 673, 675.
• 10La. C.C.P. art. 4735.
• 11New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-0055 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186, 1189.
• 12Barry Bernadas c/o Bella Zoya Properties v. Donald Palmer, 2022-0758 (La. App. 4 Cir. 4/19/23), 2023 WL 3002452.
• 13La. C.C.P. art. 4735.
• 14Lakewind E. Apartments v. Porree, 629 So. 2d 422, 423­–24 (La. App. 4 Cir. 1993); Robinson Ventures, LLC v. Dowl, 2004-2149, p. 2 (La. App. 4 Cir. 04/20/05), 901 So. 2d 587, 589; Windmill Creek N. - 1st Lake v. Gowan, 20-85 (La. App. 5 Cir. 2/21/20), 2020 WL 875252.
• 15Porter v. Grandison, No. 20-C-421 (La. App. 5 Cir. 11/30/20) [LINK – Case has been provided]; McClain v. Trapagnier, No. 20-C-450 (La. App. 5 Cir. 12/11/20; see also Jenkins v. Johnson, 2019-0985 (La. App. 1 Cir. 07/29/19); Guste v. Thomas, 2019-C-0988 (La. App. 4 Cir. 11/19/19); Lewis v. Alcee, 2020-C-0188 (La. App. 4 Cir. 03/17/20).
• 16La. C.C.P. art. 2002(A)(2).
• 17La. C.C.P. art. 2002(A)(3).
• 18La. C.C.P. art. 2004(A).
• 19Ezzell v. Miranne, 13-349, p. 8 (La. App. 5 Cir. 12/30/13), 131 So. 3d 1093, 1098.
• 20Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
• 21Sutton v. Adams, 2019-0795 (La. App. 4 Cir. 10/12/22), 351 So. 3d 411, 418.