7.1.5 Devolutive Appeal

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).