10 IFP Appeals

An IFP litigant is allowed to appeal a final judgment without paying the filing fee, but only devolutively, not suspensively.1  The two appeals differ in their procedural timeframe,2  their bond requirements,3  and, most critically, their effect on the final judgment.4  Basically, a litigant is permitted to proceed IFP on appeal (i.e., without paying fees) in cases that do not require an appeal bond, that is, devolutive appeals.5  An IFP litigant is also relieved from the responsibility of posting security in the trial court even if the defendant requests it.6  This waiver is of particular importance in medical malpractice suits which, as a general rule, require the plaintiff to post a bond for the costs of the medical review panel when the panel has found unanimously in favor of the healthcare provider.7

With IFP litigants, courts have found that filing for or being improperly granted a suspensive appeal is sufficient preserve the right to take a devolutive appeal and will convert the former to the latter.8  Eviction cases, however, present a significant appeal challenge for the IFP litigant.9  For one, trial courts lack the discretion to convert the filing for a suspensive appeal into a devolutive appeal.10  Further, in the eviction context, the difference between the two appeals is stark: “[I]f the evictee takes a suspensive appeal he retains possession of the premises; however, as a general rule, if he takes a devolutive appeal his only relief is monetary damages for wrongful eviction.”11  Put together, this means that an IFP tenant, who is only entitled to a devolutive appeal, risks losing residency and any relief by filing a suspensive appeal and failing to pay the court-determined appeal bond.

Recent cases, however, offer IFP tenants some hope. Weighing in on an eviction dispute, the First Circuit granted an IFP litigant’s supervisory writ in order to describe an alternative to a suspensive appeal bond.12  After vacating the trial court’s notice of appeal costs, the appellate court determined that the $6,000 appeal bond was an abuse of discretion.13  A more equitable—and apparently viable—option for bond payment existed: “An alternative in such cases in the setting of such bonds is to require the appealing party to pay her rent into the registry of the court each month as it becomes due, and we find that this alternative would be reasonable herein.”14  The court’s reasoning corresponds with the purpose of a suspensive appeal bond: “to protect the appellee against all such damage as he may sustain as a result of the appeal.”15

One additional bond-related consideration for tenants arises from the court in which the eviction has been brought. Justice of the Peace courts have concurrent jurisdiction with parish or district courts “over suits by landowners or lessors for the eviction of occupants or tenants of leased residential premises, regardless of the amount of monthly or yearly rent or the rent for the unexpired term of the lease.”16  Significantly for the IFP litigant, an appeal from a justice of the peace eviction is heard “de novo in the district court or the parish court,” and so does not require a bond.17

• 1La. C.C.P. art. 5185(A)(5) (“[T]he party is entitled to . . . [t]he right to a devolutive appeal . . . .); La. C.C.P. art. 5185(B) (“The party is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless the party furnishes the necessary security therefor.”).
• 2A suspensive appeal generally must be filed within thirty days of the trial judgment becoming final, whereas the devolutive appeal filing deadline extends to sixty days. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 3La. C.C.P. art. 2123(A) (“No security is required for a devolutive appeal.”); id. art. 2123(B) (fixing the amount of security in a suspensive appeal as, generally, the judgment amount plus interest or party damage from delay).
• 4A suspensive appeal literally “suspends the effect or the execution of an appealable order or judgment,” whereas a devolutive appeal does not. Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 5Compare La. C.C.P. art. 2123, with La. C.C.P. art. 2087.
• 6See La. R.S. 13:4522 (“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case . . . . This section shall not apply to . . . cases brought in forma pauperis . . . .”).
• 7See, e.g., Tate v. Ochsner Clinic Found., 16-140 (La. App. 5 Cir. 12/7/16), 205 So. 3d 996, 1001 (“[W]e find that the granting of pauper status under La. C.C.P. art 5181 et seq. relieved plaintiffs of the statutory bond requirement provided in La. R.S. 40:1299.47(I)(2)(c).”).
• 8La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”); see, e.g., Frandria v. Holden, 2020-0410, p. 5 (La. App. 1 Cir. 12/30/20), 319 So. 3d 332, 337 (citation omitted) (“Frandria is proceeding in the trial court in forma pauperis and would not be entitled to a suspensive appeal. Accordingly, we treat this appeal as a devolutive appeal.”); Muller v. Fort Pike Volunteer Fire Dep’t, 2019-0156, p. 6 (La. App. 4 Cir. 6/26/19), 275 So. 3d 927, 932 (“The record does not reflect that Mr. Muller paid the appeal bond. Accordingly, we convert his suspensive appeal to a devolutive appeal.”); White v. Rogers, 04-1434, pp. 3–4 (La. App. 5 Cir. 4/26/05), 905 So. 2d 1088, 1090 (“The suspensive appeal was erroneously granted because no security was provided . . . . Plaintiffs are entitled to a devolutive appeal, which is timely, since the motion for appeal was filed on July 9, 2004, or within 60 days from the expiration of the 7 day delay for applying for a new trial . . . .”); Bass v. Serv. Pipe Trucking Co., Inc., 267 So. 2d 63, 63–64 (La. App. 3 Cir. 1972) (“Insofar as the appeal purports to suspend the judgment, it must be dismissed. However, since the order granting plaintiff-appellant’s appeal in forma pauperis was signed within the delay allowed for a devolutive appeal, this appeal will be upheld as a devolutive appeal.”).
• 9For a more detailed discussion of appellate practice in eviction cases, see Section 9 of the chapter on landlord-tenant law.
• 10La. C.C.P. art. 2088 (“[T]he trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.”).
• 11New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-0055, pp. 3–4 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186, 1189.
• 12Jenkins v. Johnson, 2019-0985, p. 1 (La. App. 1 Cir. 7/29/19), 2019 WL 3407178.
• 13Id.
• 14Id. The First Circuit is not alone in coming to this rent-as-suspensive-bond conclusion. See Windmill Creek N. - 1st Lake v. Gowan, 20-85, pp. 1–2 (La. App. 5 Cir. 2/21/20), 2020 WL 875252; 429 Bourbon St., LLC v. RMDR Investments, Inc., 2016-0800, p. 22 (La. App. 4 Cir. 11/15/17), 230 So. 3d 256, 270 (“In eviction matters, the district court has the discretion to set the amount of the suspensive appeal bond in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”); Lakewind E. Apartments v. Poreé, 629 So. 2d 422, 423 (La. App. 4 Cir. 1993). The Lakewind court described the situation as the trial court’s selection between two options: In order to set a suspensive appeal bond sufficient to protect the appellee in this type of case, the trial court has two choices. One alternative would be to attempt to estimate the amount of time the case might be on appeal, then multiply that number of months times the rental price. The other alternative would be to do exactly what the trial judge did in this case and require the appellant to post the rental amounts as the rent becomes due. Lakewind E. Apartments, 629 So. 2d at 423. Building on this background, the Windmill Creek court explained why rent is perfectly suited as a bond alternative: Because the purpose of a bond is to protect the appellee against damages he may sustain as a result of the appeal, and because we recognize that the damages typically contemplated in cases of eviction are the potential lost rents to the landlord while an appeal is pending, we find that, in light of Relator’s pauper status, to the extent that the trial court ordered Relator to post $764 immediately into the court registry as bond, we find that the trial court abused its discretion. The landlord is unlikely to sustain any monetary damages while awaiting trial de novo in this case because the February rent has been paid, and the Relator has agreed to place the March rent into the court registry prior to the trial scheduled on March 3, 2020. We find this to be an acceptable alternative. Therefore, we vacate the lower court’s ruling, which conditioned the stay of the judgement of eviction upon the immediate posting of $764 rent into the registry court, and instead order Relator to pay her rent into the registry of the court when it becomes due in March 2020. Windmill Creek N. - 1st Lake, 20-85, pp. 1–2, 2020 WL 875252.
• 15La. C.C.P. art. 4735. Even in the case of a suspensive bond, the IFP litigant may be permitted to post a surety bond, rather than a cash bond. See La. C.C.P. art. 5121 (emphasis added) (“When a party to a judicial proceeding is required by law or order of court to furnish security, any bond so furnished shall be made payable to the clerk of the trial court in which the proceeding was brought.”). When considering an appeal bond, “the trial court has jurisdiction [to] . . . [t]est the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond.” La. C.C.P. art. 2088. As the Fourth Circuit determined, “The trial court is vested with the jurisdiction to test the solvency of the surety, the substance, and sufficiency of the appeal bond; however we do not find that the trial court is vested with the discretion of mandating the type of the appeal bond.” Filmore Parc Apartments v. Howard, No. 2004-C-1299 (La. App. 4 Cir. 7/30/2004).
• 16La. C.C.P. art. 4912.
• 17La. C.C.P. art. 4925 (requiring an appeal filing within fifteen days of judgment).