A tenant may suspensively appeal an eviction judgment from city, parish, or district court if a verified answer was filed prior to trial stating an affirmative defense.1  To suspend execution of the warrant of possession, the motion for suspensive appeal and appeal bond must be filed within 24 hours of rendition of the judgment.2

If proper procedure is not followed for a suspensive appeal, the appellate court may continue the appeal as devolutive where appropriate.3  The devolutive appeal will not prevent execution of the eviction judgment, but the tenant will not be required to pay a suspensive appeal bond. The delay period for a devolutive appeal of a city or parish court eviction judgment is 10 days.4

The trial court is divested of jurisdiction upon the granting of the order of appeal and timely paying of bond.5  Normally the trial court would retain jurisdiction in limited circumstances, but in evictions the trial court does not retain jurisdiction to convert a suspensive appeal to a devolutive appeal when the bond is not timely filed.6

Appeals of all eviction cases from city court or parish court are taken to the court of appeal in the same manner as an appeal from the district court.7

• 1La. C.C.P. art. 4735.
• 2Id.
• 3Pledge Dev. Corp. v. Big Kahuna Enters., Inc., 376 So. 2d 600, 602 (La. App. 4 Cir. 1979) (suspensive appeal of eviction converted to devolutive appeal); Polk v. Buckhalter, 2018-0053 (La. App. 1 Cir. 09/24/18), 258 So. 3d 816, 818 (same); Vision Aviation, L.L.C. v. Airport Auth., 09-742 (La. App. 3 Cir. 07/29/09), 13 So. 3d 809 (same).
• 4La. C.C.P. art. 5002(A)–(B).
• 5La. C.C.P. art 2088(A).
• 6La. C.C.P. art. 2088(B). However, if your client cannot pay the bond and you are still within the 10-day delay to file a motion for devolutive appeal, you can argue the 2088(B) exception does not apply.
• 7La. C.C.P. art. 5001; La. C.C.P. art. 2081, et seq.

Application must be made to the trial court for suspensive appeal by written motion, filed within 24 hours after the rendition of a judgment of eviction.1  Judgment is rendered when a written judgment is signed, not when the judgment is orally announced.2  As such, an appeal may be premature if it is filed before the written judgment.3

An appeal bond must also be filed within 24 hours of judgment, in an amount set by the trial court.4  As a practical matter, the appellant cannot pay a bond that has not yet been set. Sometimes it takes the judge longer than 24 hours to sign a motion for suspensive appeal and set the bond. Advocates should propose a bond amount in the motion for suspensive appeal and consider attempting to pay the proposed amount within 24 hours. In the alternative, if the court will not accept a bond before the order is signed, consider photocopying a money order for the proposed amount and filing that with the motion for suspensive appeal.5

Typically, after the order for suspensive appeal is signed and the bond paid, the trial court will prepare the record and the court reporter will prepare the transcript. If the client is indigent, presumably an in forma pauperis application was filed with the answer. The order to proceed in forma pauperis covers appeal costs.6  The court reporter may argue otherwise, but the transcript is covered by the in forma pauperis application along with all other costs of preparing the record.7

When the record is complete, the trial court sends it to the court of appeal. At that point, the parties will receive a “notice of lodging” with briefing deadlines for each side. Direct appeals of evictions can take 6–8 months to complete.

In most jurisdictions, weekends, legal holidays, and half-holidays are not included in the computation of time if the delay is less than 7 days.8  If an eviction judgment is rendered on a Friday or the day before a holiday, the deadline to vacate or file an appeal is the next business day.9

• 1La. C.C.P. art. 4735.
• 2See Viator v. Heintz, 10 So. 2d 690, 691 (La. 1942); Buras v. Plaquemines Par. Democratic Exec. Comm., 202 So. 2d 678, 679 (La. App. 4 Cir. 1967); Hous. Auth. of Lake Charles v. Minor, 355 So. 2d 270, 271 (La. App. 3 Cir. 1977).
• 3La. C.C.P. art. 1911. Wynne v. Parlay’s, Inc., 97-1170 (La. App. 4 Cir. 11/05/97); 701 So. 2d 1369 (an appeal granted before the signing of a final judgment is subject to dismissal until the final judgment is signed). But see Overmeir v. Traylor, 475 So. 2d 1094 (La. 1985) (signing of final judgment cures defect).
• 4La. C.C.P. art. 4735.
• 5For additional discussion of suspensive appeal bonds, see Section 7.1.3.
• 6See Dowden v. Miller, 404 So. 2d 1270, 1271 (La. App. 1 Cir. 1981) (“Thus once the trial court allowed plaintiff to proceed in forma pauperis and did not rescind the order, the second forma pauperis order was not necessary, and plaintiff could perfect a devolutive appeal ‘without paying the costs in advance, or as they accrue, or furnishing security therefor.’”).
• 7La. C.C.P. art. 5185(A)(1).
• 8La. C.C.P. art. 5059.
• 9Note that not all jurisdictions declare Saturday as a legal holiday.

A suspensive appeal requires that the appellant post an appeal bond. The purpose of a suspensive appeal bond is to protect the appellee from being further damaged during the pendency of the appeal.1  In the context of an eviction, the damage that may be sustained is lost rent.2  At least three Louisiana courts of appeal have held that an order for a tenant appellant to post the rental amount as the rent becomes due constitutes a proper suspensive appeal bond.3  Under special circumstances (e.g., the tenant does not pay rent under the lease agreement), the court may set a lower “nominal” bond for an appellant with in forma pauperis status.4  However, at least one court has ruled that a bond less than one month’s rent, when challenged, was insufficient.5

In forma pauperis litigants are not exempted from the requirement of a suspensive appeal bond.6  However, setting an excessive appeal bond for an indigent tenant is an abuse of discretion.7

A tenant may post a surety or cash bond.8  The surety must have net assets exceeding the amount of the bond.9  The formalities of the bond must be strictly complied with, on penalty of subjecting the surety to possible false swearing charges. The landlord may test the sufficiency, solvency, or legality of the bond by a rule to show cause.10  If the surety is found insufficient or invalid, the tenant has 4 days to correct the deficiency by filing a new or supplemental bond.11  The tenant has two opportunities to correct a deficient bond.12  The tenant may file a corrected bond at any time prior to the filing of a rule to test the original bond.13

Failure to move for the dismissal of a suspensive appeal within 3 days of the appeal record lodging may waive objections to the timeliness of a bond.14

• 1La. C.C.P. art. 4735.
• 2Lakewind E. Apartments v. Porree, 629 So. 2d 422, 423 (La. App. 4 Cir. 1993) (bond can either be set at the monthly rent multiplied by the estimated number of months the appeal will take, or at monthly rent payable as due); A & J, Inc. v. Ackel Real Estate, L.L.C., 2002-259, p. 10–11 (La. App. 5 Cir. 10/16/02), 831 So. 2d 311, 317 (suspensive appeal bond should be “sufficient to cover the expected rents during the appellate period”).
• 3Lakewind E. Apartments, 629 So. 2d at 423; 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; Jenkins v. Johnson, 2019-0985 (La. App. 1 Cir. 07/29/19).
• 4Guste v. Thomas, 2019-C-0988 (La. App. 4 Cir. 11/19/19) (subsidized tenant paid small portion of rent and there was no showing that the current rent was unpaid; Lewis v. Alcee, 2020-C-0188 (La. App. 4 Cir. 3/17/20) (family property where occupant paid no rent). Note that in Guste the appellate court stated that the tenant still owed monthly rent to the landlord. However, presumably because this monthly rent was not part of the bond, failure to pay would give rise to a new eviction rather than dismissal of the appeal.
• 5PRCP-NS New Orleans, LLC v. Swanson, 2022-0393 (La. App. 4 Cir. 12/16/22).
• 6La. C.C.P. art. 5185(B).
• 7Jenkins v. Johnson, 2019-0985 (La. App. 1 Cir. 07/29/19) (abuse of discretion where bond for pauper was in the amount of $6000 and held appropriate alternate bond to pay rent each month into registry).
• 8La. C.C. art. 3068; Case v. Case, 316 So. 2d 418 (La. App. 2 Cir. 1975); Filmore Parc Apartments v. Howard, 2004-1299 (La. App. 4 Cir. 07/30/04).
• 9La. C.C.P. art. 5122. The surety may be liable for damages from delay caused by appeal if the tenant loses the eviction appeal. Typically, damages include unpaid rent. The landlord has the burden of proving the delay damages. See, e.g., Urb. Homeowners’ Corp. v. Abrams, 96-CA-1237 (La. App. 4 Cir. 03/26/97), 692 So. 2d 673.
• 10La. C.C.P. art. 5123.
• 11La. C.C.P. art. 5124; Hoerner v. Paul, 392 So. 2d 191 (La. App. 4 Cir. 1981) (4-day rule applies to eviction appeals); Viccinelli v. Causey, 394 So. 2d 1309 (La. App. 1 Cir. 1981).
• 12La. C.C.P. art. 5126.
• 13La. C.C.P. art. 5124.
• 14La. C.C.P. art. 2161; Alost v. Lawler, 2020-0832 (La. App. 1 Cir. 06/02/21), 326 So. 3d 1255, 1261-62; Wright v. Jefferson Roofing, Inc. 630 So. 2d 773, 776 (La. 1994). But see Lakewind E. Apartments v. Poree, 629 So. 2d 422 (La. App. 4 Cir. 1993) (rule does not apply to “continuing” bond of monthly rental payments when tenant make late payments).

A suspensive appeal stays the effect or execution of the eviction judgment. If the tenant’s eviction is affirmed by the court of appeal, the judgment becomes final and executory. Timely application to the Louisiana Supreme Court for a writ of certiorari precludes execution of the eviction judgment until the Supreme Court rejects the writ application.1

A final appellate judgment may be executed in the trial court without further notice after the landlord has filed a certified copy of the appellate judgment with the clerk for the trial court.2

The landlord’s and tenant’s obligations remain in effect during the suspensive appeal.3  A landlord who attempts to evict or eject a tenant in violation of the suspensive appeal or a stay order may be subject to a contempt action for violation of a court order or damages for lease violations.4

At least one court has held that a suspensive appeal does not suspend a tenant’s obligation to pay rent as it becomes due during the appeal.5  Thus, despite pendency of a suspensive appeal, failure to pay rent in a subsequent month may constitute a lease violation for which the landlord can sue to evict. As a result, a tenant should timely tender the rent as it becomes due while the appeal is pending. Moreover, if the appeal bond is set at monthly rent payable as due, failure to timely pay rent to the court registry pursuant to the appeal bond could result in dismissal of the tenant’s suspensive appeal.6

• 1La. C.C.P. art. 2166.
• 2La. C.C.P. arts. 2166, 2167; Francis v. Lake Charles Am. Press, 265 So. 2d 206 (La. 1972).
• 3Cf. Reed v. Classified Parking Sys., 324 So. 2d 484, 490 (La. App. 2 Cir. 1975). But see Smith v. Castro Bros. Corp., 443 So. 2d 660 (La. App. 4 Cir. 1983).
• 4A suspensive appeal order suspends or stays the effect or execution of the judgment. La. C.C.P. art. 2123(A). Violation of a suspensive appeal order is punishable as contempt. See La. C.C.P. arts. 224–­227; La. R.S. 13:4611. Violation of a stay order is punishable as contempt. See La. C.C.P. art. 3611 (violations of injunctions punishable as contempt of court; court may undo whatever was done in violation of an injunction and aggrieved party may recover damages); La. C.C.P. art. 2502.
• 5Sarpy v. Morgan, 426 So. 2d 293 (La. App. 4 Cir. 1983); see also Guste v. Thomas, 2019-C-0988 (La. App. 4 Cir. 11/19/19).
• 6Lakewind E. Apartments, 629 So. 2d 422.

A tenant in compliance with a suspensive appeal bond should not be required to move out while the appeal is pending. However, if a tenant cannot afford a suspensive appeal bond, the tenant must appeal devolutively. In that case, a landlord may execute the judgment of eviction.

In Curran Place Apartments v. Howard, the Fourth Circuit considered the situation in which the tenant, who could not afford the suspensive appeal bond, moved out pursuant to the eviction judgment the day before she filed her motion for devolutive appeal.1  Because the tenant had vacated the premises, the court dismissed her devolutive appeal as moot. However, the Howard court noted that “[w]hile there may be some claim for damages for illegal eviction, no such claim is presented in this appeal.”2

In New Orleans Hat Attack v. New York Life Insurance Co., the same court held that an evicted tenant who takes a devolutive appeal does not acquiesce in the judgment by vacating the premises and that compliance with an eviction judgment does not forfeit a tenant’s right to a devolutive appeal.3  If a case on devolutive appeal can serve a purpose or provide the litigant relief (i.e., by supporting a damages claim for wrongful eviction), the case is not moot.4  New Orleans Hat Attack distinguished Howard and similar cases by noting that they involved expired leases; thus, the devolutive appeal of a tenant with an unexpired lease is not mooted by the tenant’s vacating the premises. In addition, the Fourth Circuit has ruled that a devolutive appeal is not moot because an eviction judgment on a tenant’s record will harm their ability to secure future housing.5

It is important to demonstrate that the tenant is not acquiescing in the eviction judgment by moving out. One suggestion is to write a letter to the landlord or the landlord’s attorney saying that the tenant does not intend to forfeit any appeal rights and that the tenant is only moving out to avoid a trespass charge. The motion for devolutive appeal should also clearly state why the appeal is not moot (i.e., because of the potential of damages for wrongful eviction or because of the potential harm of an eviction judgment on the tenant’s record). A tenant who moves out may also wish to record a notice of the devolutive appeal (notice of lis pendens) in the parish mortgage office under La. C.C.P. art. 3751, et seq., in order to protect the tenant’s rights against third parties.6

The reversal of the eviction judgment may have res judicata effect on any subsequent suit for wrongful eviction.7  This might allow you to quickly move for summary judgment in the wrongful eviction suit because the reversal of the eviction judgment is dispositive of the fact that the eviction was wrongful. Note, however, that one court has held that ordinary claims asserted in defense of an eviction do not constitute res judicata to a subsequent ordinary action for damages.8  Another court has held that an eviction judgment is not res judicata to a subsequent suit for wrongful eviction since the tenant could not have asserted her claims in the eviction.9

• 1563 So. 2d 577 (La. App. 4 Cir. 1990).
• 2Id. at 578.
• 395-0055 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186.
• 4Id.
• 5Barry Bernadas c/o Bella Zoya Props. v. Palmer, 2022-CA-0758 (La. App. 4 Cir. 4/19/23), 2023 WL 3002452.
• 6See Ducote v. McCrossen, 95-CA-2072 (La. App. 4 Cir. 05/29/96), 675 So. 2d 817.
• 7Mangelle v. Abadie, 19 So. 670 (La. 1896); Hart v. Scott, 47012 (La. App. 2 Cir. 03/07/12), 90 So. 3d 30; Smith v. Shirley, 2001-1249 (La. App. 3 Cir. 02/06/02), 815 So. 2d 980, 984.
• 8Graci v. Gasper John Palazzo, Jr., LLC, 09-A-347 (La. App. 5 Cir. 12/29/09), 30 So. 3d 915, 918.
• 9Horacek v. Watson, 06-210 (La. App. 3 Cir. 07/05/06), 934 So. 2d 908 (eviction is summary proceeding, damages is ordinary, therefore no wrongful eviction relief in eviction suit).