3.4 Trial

The rule to show cause is a summary proceeding.1  Trial of the rule is typically conducted quickly and without observing all of the formalities of an ordinary proceeding.2  That being said, the rules of evidence apply in city and parish court eviction proceedings.3  It is important to insist on formalities necessary to preserve the record in the event that an appeal is necessary.

On the other hand, justice of the peace trials are informal. They are not required to strictly adhere to the rules of evidence, and hearsay is statutorily permissible provided the judgment is based on competent evidence.4

Jury trials are not available in Louisiana eviction proceedings.5  If the tenant fails to answer or appear for trial, the court may immediately render a judgment of eviction providing the tenant 24 hours to vacate.6

At the trial, the landlord has the burden of establishing a prima facie case of his right to possession.7  The landlord must prove by a preponderance of the evidence: (1) that a landlord-tenant or owner-occupant relationship exists between the parties, (2) that the purpose of occupancy has ceased, the lease has expired, or action or inaction by defendant constituted breach of the lease agreement, and (3) that a legally sufficient notice to vacate was properly served.8  An eviction may be reversed if a proper notice to vacate is absent from the record.9  If there is a lease, it is the landlord’s burden to prove the lease and the lease violation.10  In addition, the landlord must show jurisdiction.11

Sworn testimony and admissible documents must be introduced into evidence in a court of record.12  An eviction cannot be granted absent evidence.13  Documents attached to pleadings but not formally admitted are not evidence.14  Argument of counsel is not evidence.15

After the landlord establishes a prima facie case, the burden shifts to the tenant to refute the landlord’s case by proving any affirmative or special defenses pleaded.

Some justices of the peace enter eviction judgments without ever holding a trial. This is egregious legal error and violates the Code of Judicial Conduct. A justice of the peace’s failure to conduct a hearing could be grounds for suspension by the Supreme Court.16  A call to the judge may secure a rescission of the unlawful judgment.17  Additionally, some justices of the peace will have informal ex parte communications with parties, which also violates the Code of Judicial Conduct.18  The advocate must decide if a motion to recuse is warranted and whether the motion is in the best interest of the tenant.19  Tenants always have the remedy of filing a trial de novo petition in parish or district court if an eviction judgment issued by a justice of the peace is improper. Some decisions by Justices of the peace may also be challenged via a supervisory writ to the court of appeal.20

  • 1La. C.C.P. art. 2592(3).
  • 2La. C.C.P. art. 2591.
  • 3La. C.C.P. art. 2596 (rules of ordinary proceedings apply).
  • 4La. C.C.P. art. 4921.2.
  • 5La. C.C.P. art. 1732(4).
  • 6La. C.C.P. art. 4732; see Trapani v. Morgan, 426 So. 2d 285 (La. App. 4 Cir. 1983).
  • 7The reality in many trial courts is that the judge places the burden on the tenant, does not require proof of a prima facie case, and conducts a trial that is “conversational” at best. It is the advocate’s responsibility to make an objection based on improper shift of the burden. However, it is the tenant’s burden of proof for exceptions and affirmative defenses.
  • 8See generally Miller v. White, 162 So. 638 (La. 1935); PTS Physical Therapy Serv. v. Magnolia Rehabilitation Serv., Inc., 40,558-CA, 40,559-CA (La. App. 2 Cir. 01/27/06), 920 So. 2d 997, 1000 (cited by Cole v. Thomas, 2017-0666 (La. App. 1 Cir. 03/22/18), 247 So. 3d 957); Kenneth & Allicen Caluda Realty Tr. v. Fifth Bus. LLC, 06-CA-608 (La. App. 5 Cir. 12/27/06), 948 So. 2d 1137, 1138; Marlies Margot Cernicek Irrevocable Living Tr. v. Becnel, 22-62 (La. App. 5 Cir. 11/16/22), 353 So. 3d 950; JoAnn Place v. Ricard, 2022-0456 (La. App. 4 Cir. 12/27/22), 356 So. 3d 518.
  • 9PRCP-NS New Orleans, LLC v. Swanson, 2022-0393 (La. App. 4 Cir. 12/16/22), 354 So. 3d 239; Monroe Hous. Auth. v. Coleman, 46,307 (La. App. 2 Cir. 5/25/11), 70 So. 3d 871, 872.
  • 10See Hous. Auth. of New Orleans v. Haynes, 2014-1349 (La. App. 4 Cir. 05/13/15), 172 So. 3d 91; Guste Homes Resident Mgmt. Corp. v. Thomas, 2012-1493 (La. App. 4 Cir. 05/29/13), 116 So. 3d 987; Artspace Bell Sch. v. Dozier, 2022-0404 (La. App. 4 Cir. 12/8/22), 2022 WL 17494773; JoAnn Place, 2022-0456, 356 So. 3d at 318.
  • 11La. C.C.P. art. 1; Arnona v. Arnona, 477 So. 2d 120 (La. App. 4 Cir. 1985); PTS, 40,558-CA, 40,559-CA, 920 So. 2d at 1000; Creekstone/Juban I, LLC v. XL Ins. Am., Inc., 2018-0748 (La. 05/08/19), 282 So. 3d 1042.
  • 12See Kenneth & Allicen Caluda Realty Tr., 06-CA-608, 948 So. 2d 1137; PTS, 40,558-CA, 40,559-CA, 920 So. 2d at 1000.
  • 13Poydras Ctr. LLC v. Intradel Corp., 2011-CA-0978 (La. App. 4 Cir. 12/07/11), 81 So. 3d 80; Hous. Auth. of New Orleans v. King, 2012-1372 (La. App. 1 Cir. 06/12/13), 119 So. 3d 839.
  • 14Marlies Margot Cernicek Irrevocable Living Tr. v. Becnel, 22-62 (La. App. 5 Cir. 11/16/22), 353 So. 3d 950.
  • 15King, 2012-1372, 119 So. 3d at 842; JoAnn Place, 2022-0456, 356 So. 3d at 318.
  • 16See, e.g., In re Justice of the Peace Landry, 2001-O-0657 (La. 06/29/01), 789 So. 2d 1271.
  • 17Do not threaten the judge with disciplinary charges for his violation of the Code of Judicial Conduct. See La. R. Prof’l Conduct 8.3(b), 8.4(g).
  • 18Proof is necessary to make an allegation of ex parte communications with a party. La. Const. art. V, § 25; In re Fuselier, 2002-1661 (La. 1/28/03), 837 So. 2d 1257 (proof must be clear and convincing).
  • 19The Louisiana Supreme Court will often appoint a different justice of the peace to hear the eviction, even where no disciplinary action takes place.
  • 20Nguyen v. Hall, 2020-0531 (La. App. 1 Cir. 6/25/20), 2020 WL 3475906 (reversing Justice of the peace’s denial of remote hearing for medically compromised tenants during COVID-19); Cedarwood Apartments v. Williams, 2021-0453 (La. App. 1 Cir. 4/29/21), 2021 WL 1717184 (ordering Justice of the peace to halt eviction and consider tenant’s COVID-19 affidavit in accordance with Centers for Disease Control moratorium).

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.