354 So.3d 239
La. Ct. App.2022Background
- PRCP-NS filed a Rule for Possession on April 8, 2022, attaching a lease (original term Aug 1, 2019–Jan 31, 2020) that converted to month-to-month and required 60 days’ written notice to terminate; monthly rent was $2,065.
- PRCP sought to evict Anne Swanson, claiming the lease expired/owner wanted possession. At the April 29, 2022 hearing PRCP’s counsel said a notice was tacked to the apartment door; Swanson denied receiving any notice.
- The trial court rendered judgment April 29, 2022 ordering Swanson to vacate by May 13, 2022. Swanson filed a Motion for Suspensive Appeal on May 2, 2022; the trial court granted it conditioned on furnishing $500 security.
- PRCP moved in the appellate court to dismiss the suspensive appeal, arguing (1) the appeal bond was paid untimely and (2) the $500 bond was insufficient under La. C.C.P. art. 4735.
- The appellate court found the record did not clearly show untimely payment and PRCP missed the procedural deadline to press that defect, but held $500 was an insufficient suspensive bond; the court dismissed the suspensive appeal, maintained the appeal as devolutive, and reversed the eviction judgment because no notice to vacate was in the record.
Issues
| Issue | Plaintiff's Argument (PRCP) | Defendant's Argument (Swanson) | Held |
|---|---|---|---|
| Timeliness of appeal bond payment (La. C.C.P. art. 4735) | Bond was not paid within 24 hours (was paid May 5), so suspensive appeal should be dismissed | Check dated May 2 and clerk notation indicate payment timely; record does not affirmatively show delay | Court: record does not clearly show untimeliness and PRCP filed its motion too late under art. 2161; PRCP’s timeliness ground denied |
| Sufficiency of the suspensive appeal bond (art. 4735) | $500 is grossly insufficient given rent $2,065/mo and accrual of damages while appellant remains in possession | Trial court set $500; appellant relied on that order | Court: $500 insufficient to protect appellee; suspensive appeal must be dismissed on this ground |
| Conversion to devolutive appeal | PRCP sought dismissal altogether | Swanson argued appeal can proceed devolutively if suspensive requirements are not met | Court: appeal maintained as devolutive under art. 2087 because devolutive requirements were satisfied |
| Adequacy of notice to vacate (art. 4701) and validity of eviction judgment | PRCP asserted notice was tacked on the door (claimed at hearing) | Swanson denied receiving any written notice and contended lease required 60-day notice | Court: no notice to vacate was entered into the record; lessor failed to carry burden of proving notice; eviction judgment reversed |
Key Cases Cited
- Lakewind E. Apartments v. Poreé, 629 So.2d 422 (La. 1993) (discusses setting suspensive-bond alternatives in eviction cases)
- Freemin v. Coglaiti, 411 So.2d 471 (La. App. 1 Cir. 1981) (failure to meet art. 4735 prohibits suspensive appeal but appeal may proceed devolutively)
- Atocha St. Charles, LLC v. Terpsichore Props., LLC, 294 So.3d 1082 (La. App. 4 Cir. 2020) (dismissing suspensive appeal for insufficient bond and maintaining devolutive appeal)
- Davidge v. Magliola, 346 So.2d 177 (La. 1977) (appeals favored; mover bears burden on motion to dismiss)