2.3 Post-Trial

2.3 Post-Trial aetrahan Mon, 05/01/2023 - 14:43

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.