Appealing an Eviction - What Rights Do I Have?

Authored By: Southeast Louisiana Legal Services (New Orleans office) LSC Funded


What If I Lose My Eviction Trial?

You have the right to appeal to a higher court.

Make sure you read the instructions for appealing an eviction judgment from the kind of court that ruled in your eviction case. The way you appeal can be different, depending on whether you were in a justice of the peace court, a city court or a parish court.

What Does An Appeal Do?

A "suspensive appeal" stops the eviction until the appeal is decided by the higher court. It can take several weeks to a year for the appeal to be decided. During this kind of appeal, you get to stay in your apartment.

You are not allowed to take a suspensive appeal unless you filed a written notarized (verified) answer to the eviction before the eviction trial. Your answer must have raised what is called an "affirmative defense."

To take a suspensive appeal, you must post an appeal bond within 24 hours of the court's eviction judgment.

If you can't take a "suspensive" appeal, you can still appeal. But this other kind of appeal won't stop the landlord from evicting you.

How Do I Appeal An Eviction?

To appeal, you must file a written appeal and an appeal bond within 24 hours of the eviction judgment. Where you file and what you file depends on which court first decided your case.

If you were evicted by a justice of the peace, your appeal is to the parish court or, if there is no parish court, to the district court. This is generally done by filing a law suit for "trial de novo" in the parish or district court. Sometimes this is called a "petition for suspensive appeal by trial de novo." The parish or district judge will hold a new trial, hear the evidence and legal argument, and decide whether you should be evicted. You may make new arguments and bring new evidence for the new trial.

If you were evicted by a city, parish, or district court, you must file a "Motion for Suspensive Appeal" with that court. The appeal will be based on the transcript of your trial and will be heard by a panel of three (3) judges of the court of appeal. You do not get a new trial with the court of appeal. But you must show that the lower court made a mistake about the law or a clear mistake about the facts. To do this, you must write a written brief explaining why the lower court's decision should be reversed.

How Much Does An Appeal Cost?

For any suspensive appeal, remember that you also have to post an appeal bond.

The other costs depend on which kind of court hears your appeal.

The cost to appeal a judgment from a justice of the peace court will be the filing fee of the parish or district court that hears the appeal. The fee can be hundreds of dollars, so be sure to call the clerk of court ahead of time to find out. You may also have to pay for subpoenas of witnesses.

An appeal to a court of appeal will require payment of its filing fee and the cost of the transcript of the trial in the lower court. Again, you should call the clerk of court for the court of appeal you are filing in to find out the amount of the fee you have to pay to file your appeal. The cost of the transcript depends on how long your trial was. The clerk of court will send you an estimate of the costs of the transcript. Expect the transcript to cost more than $100.

What If I Can't Pay The Appeal Costs?

If you can't pay the appeal costs, you may ask the court (generally the parish, city or district court) for an order to let you appeal in forma pauperis. The court should grant your in forma pauperis application if your income is below 125% of federal poverty guidelines.

You must complete the in forma pauperis affidavits and have a notary notarize your signature and the signature of your witness. There is more information about in forma pauperis requests on a separate LawHelp question and answer page.

An in forma pauperis order will excuse you from prepaying court costs. But the order will not excuse you from the requirement of posting a "suspensive" appeal bond. You still have to post the appeal bond on time for your "suspensive" appeal.

If you do not pay the costs of appeal or get an in forma pauperis order, your appeal will be dismissed.

What Is An Appeal Bond?

An appeal bond is set by the court to protect the landlord during your appeal. Generally, the amount of the appeal bond will depend on your monthly rental and how long the appeal takes.

An appeal bond generally may be a cash bond or may be a "surety bond." A surety bond includes an affidavit signed by you and a friend or relative that says you are indebted to the landlord for any damages he suffers because of your appeal. There are strict rules about how a surety bond is done, so be sure to check the rules before trying to use this kind of bond. The clerk of court may have a form for this kind of bond.

Sometimes the court will allow another kind of bond, such as one to let you pay the monthly rent to the court (to hold for the landlord). Courts sometimes use this last kind of bond for low-income tenants.

How Do I Get An Appeal Bond?

If you want to use an affidavit, commonly called "surety bond" or "appeal bond", check with the court clerk's office. They often have surety or appeal bond forms for the public's use.

If you are asking for an alternative bond where you pay the rent to the court's registry every month, you should file a written motion asking the court for such an arrangement.

You must ask the appropriate court to set the appeal bond.

If you are appealing from a parish or city court judgment, you ask that court to set the appeal bond. Generally, these bonds are higher because the appeals take several months.

If you are appealing from a justice of the peace court, you generally ask the higher court, either the parish or district court, to set the appeal bond. Generally, these bonds are lower since the appeal can be heard in several weeks.

Remember you must file your suspensive appeal bond within 24 hours of the original eviction judgment in order to stop the eviction. Be sure to keep proof that you filed the bond on time.

What Are My Rights During the Appeal?

Both the landlord and tenant must perform their duties during the appeal. You, the tenant, must continue to pay rent and the landlord must continue to provide you with basic services. The landlord cannot lock you out or turn off your utilities during the appeal.

Many landlords will refuse to accept your rent during an appeal. To be on the safe side, you should offer to pay the rent as it becomes due. If the landlord won't accept your rent, you should document his refusal in writing. It may be wise to ask the court to accept your rent payments each month. If you miss a rent payment, the landlord could file a new eviction despite your appeal.

A landlord may try to evict you for the same lease violation that the appeals court is reviewing. The landlord can't do this legally. Still, you must protect your rights by defending against any new eviction suit over the same lease violation as the case on appeal.

Where Can I Get More Information On Appeals?

Check the court rules for the appeals court that will hear your appeal. These rules may be available on that court's web page.

The Louisiana Third Circuit Court of Appeal web page has a Pro Se Manual that provides information for persons who represent themselves in appeals. Click here to see the manual.

Are There Any Other Ways to Stop an Eviction?

If you can't appeal or don't want to appeal, you may be able to ask the trial judge for a new trial, but this might not keep your landlord from evicting you.

WARNING A motion for new trial does not stop an eviction. It does NOT extend the time for filing a suspensive appeal (which must be filed within 24 hours of the judgment). If you choose to file a motion for new trial, do so right away and ask the judge to give you a written order that stays the eviction until the judge decides your motion.

Asking for a new trial is done by filing a motion for new trial with the judge who heard your case. The motion must state why the judgment is contrary to the law or evidence or state other good cause for a new trial.

If your case was decided by a justice of peace, you must file your motion within 7 days of the notice of judgment. If your case was decided by a city or parish court, you must file your motion within 3 days of the judgment or notice of judgment if notice is required. Again, filing a motion for new trial, on its own, does not stop the landlord from enforcing the judgment to evict you.

Last Review and Update: Oct 12, 2010

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