MARILYN A. TAYLOR * NO. 2024-CA-0461
VERSUS * COURT OF APPEAL ROBYN JOSEPH * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM FIRST CITY COURT OF NEW ORLEANS NO. 2023-06115, SECTION “B” Honorable Elroy A James, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge Monique G. Morial)
Taetrece Harrison Harrison Law Group, LLC 900 Camp Street #4C13 3rd Floor New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLEE
Molly Gordon SOUTHEAST LOUISIANA LEGAL SERVICES 1340 Poydras Street Suite 600 New Orleans, LA 70112
COUNSEL FOR DEFENDANT/APPELLANT
VACATED AND REMANDED JANUARY 30, 2025 PAB TGC MGM
This appeal arises out of an eviction proceeding. Appellant, Robyn Joseph
(“Ms. Joseph”), seeks to appeal the city court’s September 27, 2023 judgment,
which ordered Ms. Joseph’s eviction in response to Appellee’s, Marilyn Taylor
(“Ms. Taylor”), Application for Rule for Possession of Premises. For the reasons
that follow, we vacate the judgment and remand this matter to the city court for
further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
On September 8, 2023, Ms. Taylor filed her Application for Rule for
Possession of Premises (the “rule for possession”) with First City Court for the
Parish of Orleans, seeking to have Ms. Taylor evicted from 2527 Dreux Avenue,
New Orleans, Louisiana, 70122 (the “property”).1 The rule for possession
indicates that Ms. Taylor is the landlord and owner of the property, and that Ms.
Joseph is the tenant.2 On this application, Ms. Taylor selected a pre-typed option
1 The application for rule for possession of premises is a pre-printed form that can be found on
the website for the Orleans Parish Civil District Court under the section labeled “City Court Forms.” (https://www.orleanscivildistrictcourt.org/forms) Ms. Taylor used this pre-printed form and filled in the required information by hand. 2 The rule for possession also indicates that the property is part of the Housing Authority of New
Orleans, Section 8 Housing Voucher Program (“HANO”), which offers subsidized leased housing for low income households.
1 as her reason for eviction, which reads “[l]ease has expired and/or owner wants
possession of premises.” This option selected by Ms. Taylor additionally provided
that the tenant being evicted must have been notified according to the law.
Attached to the rule for possession was a copy of the lease.
The hearing on the rule for possession was set for September 27, 2023.
Before the hearing commenced, counsel for Ms. Joseph represented that she had an
exception of prematurity to orally offer prior to the trial on the merits. Instead of
accepting the oral offer, the city court passed the case and allowed counsel for Ms.
Joseph to file a written exception, which was captioned as an Exception, Answer,
and Affirmative Defense to Rule for Possession of Premises. The parties returned
to the courtroom on the same day and proceeded with the hearing. Counsel for Ms.
Joseph began by arguing that the exception of prematurity, which was based on the
retaliation prohibition found in NEW ORLEANS, LA., CODE OF ORDINANCES, ch. 26,
art. XIII (2023) (the “Healthy Homes Program”),3 protects Ms. Joseph from
eviction. Ms. Joseph further argued that Ms. Taylor filed the rule for possession
within six months of hearing that Ms. Joseph had reported to HANO that she was
unable to connect the electricity in the unit she was renting due to zoning
violations against Ms. Taylor. Thus, Ms. Joseph asserted that pursuant to the
Healthy Homes Program, a rebuttable presumption of illegal retaliation was
triggered when Ms. Taylor filed the rule for possession against her. Both parties
provided testimony related to the exception of prematurity. However, none of the
testimony provided is germane to the issue currently before this court.
3 The Healthy Homes Program is an ordinance from the City of New Orleans intended to protect
persons residing in Orleans Parish by ensuring that lessees may occupy safe and habitable dwellings. Pertinently, Section 26-680 of the ordinance provides that lessees may report potential violations of the program without fear of retaliation from the lessor.
2 Ms. Joseph’s testimony centered on why she had reported Ms. Taylor to
HANO. Ms. Joseph relayed that she had signed the lease at issue in June of 2022,
but the lease did not become effective until July of 2022. After signing the lease,
she had personal concerns with having the electricity turned on in her name due to
her unrelated complaint under the Violence Against Women Act. She reported Ms.
Joseph because when she attempted to have the electricity turned on in the unit that
she was renting,4 she was denied and told that the property was zoned as
commercial and not residential. Ms. Joseph testified that Ms. Taylor knew that the
lights were off but failed to correct the zoning issue. It was Ms. Joseph’s belief
that once she reported this issue to HANO, Ms. Taylor filed her rule for possession
shortly afterwards.
Following Ms. Joseph’s testimony, Ms. Taylor was called to the stand. Ms.
Taylor testified that she was not aware that after Ms. Joseph signed the lease that
Ms. Joseph had not contacted the power company to have the electricity transferred
in her name. She later learned that Ms. Joseph waited over six months—until
March 2023—to attempt to have the electricity turned on, but was denied because
of inactivity on the account. After she was notified of the issue, Ms. Taylor hired
an electrician to assess the situation and fix the problem. Ms. Taylor further
testified that she had no knowledge of any issues with the zoning of the property.
After hearing testimony from both Ms. Joseph and Ms. Taylor, the city court
found that there was not enough evidence to suggest that Ms. Taylor was seeking
eviction as part of a retaliatory effort and denied the exception of prematurity.5
4 Ms. Joseph testified that her brother agreed to have the lights in her unit turned on in his name.
5 In her appellate brief, Ms. Joseph specifically states that she “does not raise any assignment of
error regarding First City Court’s denial of her first exception of prematurity.
3 Notably, aside from Ms. Joseph’s brief mentioning of when the lease was signed,
neither party offered testimony as to the lease itself, the terms contained therein or
the notice to vacate.
Following the city court’s denial of the exception of prematurity, counsel for
Ms. Joseph then transitioned to the argument of her affirmative defense, which
forms the basis of this appeal. For clarity, counsel for Ms. Joseph argued as an
affirmative defense that Ms. Taylor was not entitled to possession of the property
because the lease’s term had not terminated.6 During the argument on her
affirmative defense, no testimony was offered and no exhibits were formally
introduced. After hearing arguments from counsel for both parties, the city court
orally denied the affirmative defense without giving reasons. A written judgment
was entered on the same day as the hearing—September 27, 2023—ordering Ms.
Joseph to vacate the property by October 14, 2023.
On September 28, 2023, Ms. Joseph timely filed a Motion for Suspensive
Appeal, which was signed by the city court on October 2, 2023, setting Ms.
Joseph’s bond at the value of her monthly rent—$31.00 payable as due. Ms.
Joseph posted her first bond payment on October 5, 2023. Subsequently, Ms.
Joseph filed six Motions to Deposit Funds in the Registry of the Court, one for
each month starting in October and ending in March. On March 19, 2024, Ms.
Taylor filed an Emergency Motion to Dismiss Suspensive Appeal and Reinstate
Judgment of Possession (the “motion to dismiss”) on the grounds that Ms. Joseph’s
October 5, 2023 bond payment was untimely and that Ms. Joseph had not yet paid
the appeals costs. On March 19, 2024, the city court ordered that Ms. Joseph show
6 Though captioned as an affirmative defense in her pleading, the city court referred to this
argument as a “second exception.”
4 cause on April 30, 2024, why the Motion for Suspensive Appeal should not be
dismissed. On April 23, 2024, Ms. Joseph filed her opposition to the motion to
dismiss, wherein she argued that she should not be penalized for the city court’s
delayed signing of the order setting bond and further that the appeals costs had
been paid in full on April 2, 2024. The motion to dismiss came for hearing on
April 30, 2024. The city court heard arguments from counsel for both parties and
ultimately denied the motion, and reduced the judgment to writing on the same
day. This appeal followed. In response, Ms. Taylor filed a motion to dismiss the
appeal.
Motion to Dismiss
Prior to addressing the merits of this appeal, we will first address the Motion
to Dismiss Suspensive Appeal filed by Ms. Taylor on April 30, 2024. Ms. Taylor
asserts that Ms. Joseph’s appeal should be dismissed for failure to comply with the
deadline found in La. C.C.P. art. 4735, which provides the following:
An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.
As outlined above, the city court issued its judgment on the rule for possession on
September 27, 2023. On September 28, 2023, Ms. Joseph filed her motion for
suspensive appeal in accordance with the twenty-four-hour deadline imposed by
La. C.C.P. art. 4735. However, the city court did not sign the order granting the
motion for appeal and setting the bond until October 2, 2023. Ms. Joseph asserts
that on October 5, 2023, her counsel contacted the city court regarding the order,
5 and was informed that the order had been signed on October 2, 2023, but that no
notice had been issued. Upon learning this information, Ms. Joseph’s bond was
paid on the same day—October 5, 2023.
It is well settled that “appeals are favored in law and any doubt shall be
resolved in favor of maintaining, rather than dismissing an appeal.” Matthews v.
Phillips 66 Co., 24-0227, p. 3 (La. App. 4 Cir. 11/13/24), ___ So.3d ___, ___,
2024 WL 4763306, at *6 (quoting State in Interest of K.B., 23-0409, p. 15 (La.
App. 4 Cir. 9/26/23), 372 So.3d 864, 877, writ denied, 23-01421 (La. 4/3/24), 382
So.3d 106). “Therefore, ‘[u]nless the grounds for dismissal are free from doubt,
the appeal should be maintained.’” Id. at p. 3, ___ So.3d ___, 2024 WL 4763306,
at *7 (quoting K.B., 23-0409, p. 15, 372 So.3d at 877). When a “motion for appeal
has been timely filed, the appeal may still be perfected if the tardy filing of the
security is imputable to the court system rather than the appellant.” Transamerica
Life Ins. Co. v. Fusulier, unpub., 22-548, p. 1 (La. App. 5 Cir. 12/16/22) (citing
Blue, Williams & Buckley v. Brian Invs., Ltd., 96-1451, p. 5 (La. App. 1 Cir.
6/20/97), 706 So.2d 999, 1002).
In the matter before us, the record is devoid of any indication that notice was
sent to Ms. Joseph or her counsel providing that the order granting her motion for
appeal and setting the bond had been signed by the city court. Additionally, we
note that in order for Ms. Joseph to have timely paid her bond within the deadline
set forth by La. C.C.P. art. 4735, the city court would have needed to sign the order
on the day it was filed so that Ms. Joseph would have known the amount of her
bond. Without a timely signing of the order by the city court and without notice
that the order had been subsequently signed, we do not intend to hold Ms. Joseph
6 responsible for issues imputable to the city court. As such, Ms. Taylor’s motion to
dismiss is denied. We now turn to the merits of this appeal.
DISCUSSION
Ms. Joseph raises two assignments of error: (1) the city court erred as a
matter of law by evicting Ms. Joseph when Ms. Taylor did not make out a prima
facie case to show that she was entitled to a judgment of eviction; and (2) the city
court erred as a matter of law in denying Ms. Joseph’s affirmative defense that a
year-to-year lease requires notice of the lessor’s intent to terminate at least thirty
days prior to expiration of the term to prevent renewal for a full year, and thus the
rule for possession stated no cause of action for eviction and was prematurely filed,
warranting dismissal. We begin our discussion by setting forth the standard of
review and the applicable law.
Standard of Review
“A trial court’s ruling on an eviction proceeding is subject to a ‘clearly
wrong/manifestly erroneous’ standard of review on appeal.” Sunset Harbour, LLC
v. Renton, 23-0644, p. 3 (La. App. 4 Cir. 3/19/24), ___ So.3d ___, ___, 2024 WL
1171761, at *2 (quoting Artspace Bell Sch. v. Tequila Dozier, 22-0404, p. 3 (La.
App. 4 Cir. 12/8/22), 367 So.3d 669, 671). Accordingly, the appellate court must
“apply a two-part test: (1) the appellate court must find from the record that a
reasonable factual basis does not exist for the finding of the trial court, and (2) the
appellate court must further determine that the record establishes the finding is
clearly wrong (manifestly erroneous).” Id. (quoting Kirton v. Ramelli Janitorial
Serv. Payroll, L.L.C., 21-0035, p. 6 (La. App. 4 Cir. 10/13/21), 366 So.3d 356,
360). However, “[w]here legal errors of the trial court have tainted the fact finding
process, the verdict below is not reviewed under the manifest error standard and, if
7 the record is complete, the appellate court may make a de novo review of the
record and determine the preponderance of the evidence.” Guste Homes Resident
Mgmt. Corp. v. Thomas, 20-0110, pp. 8-9 (La. App. 4 Cir. 7/29/20), 302 So.3d
1181, 1187 (quoting Hous. Auth. of New Orleans v. King, 12-1372, p. 5 (La. App.
4 Cir. 6/12/13), 119 So.3d 839, 842).
Evictions
“Because an eviction can proceed via expedited process, ‘procedural
protections must be strictly adhered to prior to an eviction to protect the rights of. .
. a tenant. . . .” JoAnn Place v. Ricard, 22-0456, p. 11 (La. App. 4 Cir. 12/27/22),
356 So.3d 518, 526 (quoting Hous. Auth. of New Orleans v. Haynes, 14-1349, p.
24 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 104). More specifically, “the rules of
evidence contained primarily in the Louisiana Code of Evidence” apply to eviction
procedures in Louisiana. Id. at p. 12, 356 So.3d at 527 (quoting Haynes, 14-1349,
p. 24, 172 So.3d at 104). “No ‘relaxed’ or simplified rules of evidence apply to
eviction proceedings.” Id. (quoting Haynes, 14-1349, p. 24, 172 So.3d at 104).
“Further, the ‘[a]rgument of counsel, no matter how artful, is not evidence.” Id.
(quoting King, 12-1372, p. 4, 119 So.3d at 842).
“In an eviction proceeding against an occupant, the petitioner is required to
make a prima facie showing of title to the property, prove the defendant is an
occupant as defined in La. C.C.P. art. 4704,7 and show the purpose of [why] the
occupancy has ceased.” Sunset Harbour, p. 2, ___ So.3d ___, 2024 WL 1171761,
at *3-4. Louisiana Code of Civil Procedure article 4701 provides, in pertinent
part:
7 Louisiana Code of Civil Procedure art. 4704 provides, in pertinent part, that an occupant includes “. . . a lessee of the owner.”
8 When a lessee’s right of occupancy has ceased because of the termination of the lease by expiration of its term, action by the lessor, nonpayment of rent, or for any other reason, and the lessor wishes to obtain possession of the premises, the lessor or his agent shall cause written notice to vacate the premises to be delivered to the lessee. The notice shall allow the lessee not less than five days from the date of its delivery to vacate the leased premises.
Specific to La. C.C.P. art. 4701, “this Court has held that ‘proper notice to vacate
is a prerequisite to filing of the rule for possession. . .’” JoAnn Place, 22-0456, p.
13, 356 So.3d at 528 (emphasis in original) (quoting Lichtentag v. Burns, 258
So.2d 211, 213 (La. App. 4th Cir. 1972). In other words, “Louisiana’s summary
eviction procedure ‘also requires that notice must include the grounds upon which
eviction is sought.’” Id. at p. 14, 356 So.3d at 528 (quoting Trahan v. 2010 Beglis,
L.L.C., 11-0365, p. 6 (La. App. 3 Cir. 12/14/11), 81 So.3d 192, 196). The notice is
so essential that, without it, “there can be no judgment issued under La. C.C.P. art.
4701.” Id. (quoting Kushi Healthcare, L.L.C. v. St. James Behavioral Health
Hosp., Inc., 15-0007, p. 9 (La. App. 1 Cir. 6/5/15), 174 So.3d 1192, 1198). “The
burden of proving notice rests with the lessor.” Id. at p. 15, 356 So.3d at 528
(citing Williams v. Reynolds, 448 So.2d 845, 847 (La. App. 2d Cir. 1984)).
Ultimately, “a judgment of eviction must be reversed if the lessor fails to meet its
burden of proof.” Id. (citing Hous. Auth. of New Orleans v. Haynes, 14-1349, p.
15 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 99). Having discussed the relevant
law, we now turn to Ms. Joseph’s assigned errors.
Assignment of Error No. 1 - Failure to Meet Burden of Proof
Ms. Joseph argues that Ms. Taylor did not properly enter the lease
agreement or the notice to vacate into evidence. Without the lease agreement, Ms.
Joseph asserts that Ms. Taylor could not meet her burden of providing a legitimate
basis for eviction. Further, without the notice to vacate, Ms. Joseph asserts that the
9 city court could not issue a judgment pursuant to La. C.C.P. art. 4701. Conversely,
Ms. Taylor argues that both the lease agreement and the notice to vacate were
entered into evidence based on the city court’s consideration of both at the hearing,
the references to both made by each party during the hearing, and the inclusion of
each in the record before this Court. Thus, because the city court was fully
apprised of the lease agreement and the notice to vacate, Ms. Taylor posits that the
rule for possession was properly granted.
After review of the record, we find neither the lease nor the notice to vacate
were offered into evidence on either the exception of prematurity or the hearing on
the affirmative defense. However, the lease was attached to Ms. Joseph’s rule for
possession, making it proper evidence for our review.8 As for testimony, Ms.
Joseph and Ms. Taylor both testified as to the exception of prematurity before the
city court, which dealt mainly with Ms. Joseph’s alleged claims that Ms. Taylor
violated the Healthy Homes Program. However, as we espoused earlier in this
opinion, none of the testimony provided was relevant to this appeal. In fact, after
the testimony was completed, counsel for both parties presented closing
arguments, and the city court then denied the exception of prematurity before
continuing with argument on the affirmative defense. Thereafter, no further
testimony was offered. Regarding exhibits, counsel for Ms. Joseph presented the
only document formally offered into evidence, which was an email exchange
pertaining to the electricity and zoning issues under the exception of prematurity.
Later in the argument on the exception of prematurity, counsel for Ms. Joseph
attempted to offer a series of text messages as an exhibit, but counsel for Ms.
8 See generally JoAnn Place, 22-0456, pp. 2-4, 356 So.3d at 521-22, wherein this Court reviewed
five exhibits which the plaintiff had attached to their Rule for Possession.
10 Taylor made an objection, which was sustained by the city court. There were no
documents offered into evidence by either party during the argument on the
affirmative defense.
We note that the record clearly displays that, during argument on the
affirmative defense, the city court had a copy of the lease and notice to vacate, as
both documents were referenced throughout the hearing. However, the notice to
vacate was never formally offered, filed, and introduced into evidence. There is no
dispute among the parties that the lease was attached as an exhibit to the rule for
possession. It is also undisputed that the notice to vacate specifically was not
offered, filed and introduced into evidence.9 What is in dispute, however, is
whether the notice to vacate, which is contained in the city court’s record, is
properly before us on appeal. In Cosey on Behalf of Hilliard v. Flight Acad. of
New Orleans, LLC, the district court was presented with a summary judgment filed
by defendants. 22-0503, p. 1 (La. App. 4 Cir. 1/18/23), 357 So.3d 857, 860. The
plaintiffs had filed an opposition to the motion for summary judgment, attaching to
it two expert reports. The defendants, in both their reply memorandum and their
appellate brief to this Court, objected to the two expert reports as improper
evidence for a motion for summary judgment. However, at the hearing in the
district court, counsel for plaintiffs did not offer the expert reports into evidence,
and thus the district court did not rule on the defendants’ objection. As such, once
the case was on appeal, this Court noted that “those reports were not made part of
the record and [were] not properly before [this Court].” Id. at p. 7, 357 So.3d at
863, n.7. In pretermitting discussion of the objection, this Court noted that
9 Ms. Taylor’s brief provides that “[t]he fact that the notice was discussed and acknowledged by
all parties further reinforces that it was effectively before the court, even if the physical document was not entered into evidence.”
11 “[e]vidence that is not properly and officially offered and introduced cannot be
considered on appeal, even if the evidence is physically placed in the record.” Id.
(citation omitted).
In the case sub judice, without the notice to vacate and without any
testimony on the subject, we cannot find that Ms. Joseph was properly notified as
to when or why she needed to vacate the property. We further reiterate that it is
well-settled law that argument of counsel is not evidence. See JoAnn Place, 22-
0456, p. 12, 356 So.3d at 527. Thus, without having this necessary document
before us for review, we find that Ms. Taylor failed to establish a prima facie
showing of the legal grounds upon which she alleges Ms. Joseph should be evicted.
With Ms. Taylor failing to meet her burden of proof, and in keeping with
previously cited precedent, we vacate the city court’s judgment evicting Ms.
Joseph based on expiration of the lease. See JoAnn Place, 22-0456, p. 15, 356
So.3d at 528.
Having reached this conclusion, we pretermit discussion of Ms. Taylor’s
second assignment of error.
DECREE
For the aforementioned reasons, we vacate the city court’s September 27,
2023 judgment, and remand the matter to the city court for further proceedings
consistent with this opinion.
VACATED AND REMANDED