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).