If an appeal or a motion for new trial is not available, the only other post-trial remedy is a petition for nullity of judgment. This remedy presents most commonly when a default judgment has been rendered against a client who did not receive service of process, paid the rent before the eviction judgment, or was told by the landlord not to attend the trial.

A petition for nullity of judgment does not stay execution of the allegedly null judgment. Therefore, such petitions should be verified and include an application for a temporary restraining order and preliminary injunction.1  A petition for nullity of judgment and injunctive relief should generally be brought in the trial court that rendered the eviction judgment.2  The petition for nullity of judgment may be filed in the eviction case.3

A preliminary injunction requires a prima facie showing of irreparable harm and likelihood of success on the merits.4  The verified petition for nullity of judgment and injunctive relief should include factual allegations showing that the tenant will suffer irreparable injury if a temporary restraining order is not granted. Irreparable injury is present in virtually all evictions involving indigent tenants.5

A judgment may be annulled for vice of form or of substance.6

• 1La. C.C.P. arts. 3601–3613.
• 2La. C.C.P. art. 2006.
• 3Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
• 4Easterling v. Est. of Miller, 2014-1354 (La. App. 4 Cir. 12/23/15), 184 So. 3d 222, 229.
• 5See, e.g., Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1159 (9th Cir. 2011).
• 6See La. C.C.P. arts. 2001­–2006.

A petition for nullity for vice of form may be brought where a final judgment was issued against an incompetent person not represented as required by law, against a defendant who was not properly served or against whom a valid default judgment has not been taken, or by a court with no subject-matter jurisdiction.1  This type of nullity action can be brought at any time.2  A judgment annulled for vice of form is absolutely null and may be attacked “collaterally, at any time, by rule or by any other method.”3  As such, an absolutely null judgment can be attacked by contradictory motion.4

Default judgments of eviction based only on tacking service of the rule could be subject to nullification because the United States Supreme Court has held that tacking service is constitutionally inadequate in eviction cases.5  First City Court for the City of New Orleans constables must also serve Rules for Possession by regular mail pursuant to Sylvester v. Detweiler.6

Default judgments in which the record itself discloses an insufficient notice to vacate, or a premature rule date, can usually be nullified because eviction court judges generally recognize that a default judgment should not have been entered.7

• 1La. C.C.P. art. 2002.
• 2La. C.C.P. art. 2002(B).
• 3Johnson v. La. Dep’t of Pub. Safety & Corr., 2019-1244, p. 13 (La. App. 1 Cir. 05/11/20), 304 So. 3d 426, 434.
• 4Leonard v. Reeves, 2011-1009 (La. App. 1 Cir. 1/12/12), 82 So. 3d 1250, 1260.
• 5Greene v. Lindsey, 456 U.S. 444 (1982) (finding tacking insufficient where public housing residents provided evidence that notices were frequently removed by children and other tenants); see La. C.C.P. art. 2002. But see French Quarter Realty v. Gambel, 2005-CA-0933 (La. App. 4 Cir. 12/28/05), 921 So. 2d 1025 (finding due process satisfied when defendant claimed non-receipt of tacked notice but provided no evidence and did receive mailed notice).
• 6No. 84-3399 (E.D. La. 1985) (class action consent judgment based on Greene).
• 7See generally La. C.C.P. arts. 4732, 1701–1703; Baham v. Faust, 373 So. 2d 725 (La. App. 1 Cir. 1979), appeal after remand, 382 So. 2d 975 (La. App. 1 Cir. 1980).

A petition for nullity for a vice of substance may be brought if a judgment is obtained by fraud or ill practices.1  This type of nullity action must be brought within one year of discovery of the fraud or ill practices.2  A judgment annulled for a vice of substance is relatively null.3  An action for nullity for vice of substance must be brought by petition with citation and proper service of process.4  The action must proceed as an ordinary proceeding, but may be filed in the original eviction case.5

Louisiana courts have established two criteria to determine if a judgment was obtained by fraud or ill practices: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) the enforcement of the judgment would be unconscionable and inequitable.6  Even if no intentional wrongdoing or fraud is found, a judgment may be annulled where its enforcement would be unconscionable, inequitable and in impairment of a legal right.7  The court may award attorney fees if the eviction judgment is annulled for fraud or ill practices.8

Misrepresentations by the landlord that are material to obtaining the default judgment are also grounds for nullification under La. C.C.P. art. 2004 .9  The typical misrepresentations that occur in eviction defaults are that the lease is only month-to-month when the tenant has a written lease for a fixed term (and therefore cannot be evicted without cause) and nonpayment of rent when the landlord has, in fact, accepted the rent.

• 1La. C.C.P. art. 2004.
• 2Id.
• 3Raine v. Raine, 2015-1161 (La. App. 4 Cir. 08/03/16), 197 So. 3d 854, 857.
• 4Nethken v. Nethken, 307 So. 2d 563, 565 (La. 1975).
• 5Gazebo, Inc. v. City of New Orleans, 97-2769 (La. App. 4 Cir. 3/23/98), 710 So. 2d 354, 358.
• 6CA One/Pampy’s v. Brown, 2007-1377 (La. App. 4 Cir. 04/02/08), 982 So. 2d 909; see also Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 09/06/2006), 938 So. 2d 662.
• 7Kem Search, Inc. v. Sheffield, 434 So. 2d 1067 (La. 1983); Bradford v. Thomas, 499 So. 2d 525 (La. App. 2 Cir. 1986).
• 8La. C.C.P. art. 2004(C).
• 9Cf. Temple v. Jackson, 376 So. 2d 972 (La. App. 1 Cir. 1979).