Prcp-Ns New Orleans, LLC D/B/A Esplanade at City Park v. Anne Swanson

PRCP-NS NEW ORLEANS, * NO. 2022-CA-0393
LLC D/B/A ESPLANADE AT
CITY PARK *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
ANNE SWANSON *
STATE OF LOUISIANA
*******

APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2022-02132-F, “SECTION B”
Honorable Nadine Ramsey, Judge Pro Tempore
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore James F. McKay, III)

E. Howell Crosby
G. Wogan Bernard
Amy L. McIntire
A. Elyce Ieyoub
CHAFFE McCALL, L.L.P.
1100 Poydras Street, Suite 2300
Energy Centre
New Orleans, LA 70163

COUNSEL FOR PLAINTIFF/APPELLEE, PRCP-NS New Orleans,
LLC d/b/a Esplanade at City Park

Peter S. Title
SESSIONS FISHMAN & NATHAN, LLC
400 Poydras Street, Suite 2550
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT, Anne Swanson

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED, SUSPENSIVE
APPEAL DISMISSED, AND APPEAL MAINTAINED AS DEVOLUTIVE;
JUDGMENT REVERSED
December 16, 2022

DNA
TFL
JFM

This is an eviction matter. Appellant, Anne Swanson (“Ms. Swanson”) seeks

review of the April 29, 2022 judgment of the First City Court for the Parish of

Orleans (“trial court”), which granted the “Rule for Possession of Premises” (“Rule

for Possession”) filed by Appellee, PRCP-NS New Orleans, LLC d/b/a Esplanade

at City Park (“PRCP”), and ordered Ms. Swanson to vacate the subject premises,

her apartment, by May 13, 2022. PRCP filed a “Motion to Dismiss Suspensive

Appeal” (“Motion to Dismiss”) with this Court. For the following reasons, we

grant PRCP’s Motion to Dismiss; dismiss Ms. Swanson’s suspensive appeal;

maintain the appeal as devolutive; and reverse the April 29, 2022 judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

PRCP’s April 8, 2022 Rule for Possession

On April 8, 2022, PRCP filed a Rule for Possession. Therein, PRCP sought

to evict Ms. Swanson from the apartment she occupied in the complex located at

3443 Esplanade Avenue in New Orleans. PRCP indicated on the Rule for

Possession that Ms. Swanson’s “lease has expired and/or owner wants possession

of the premises.” Attached to PRCP’s Rule for Possession was a copy of the

“Apartment Lease Contract” (“Lease”).

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The Lease was dated August 1, 2019, and listed the parties as Ms. Swanson

and PRCP. The “Lease Term” section provided that the initial term of the lease

began on August 1, 2019, and ended on January 31, 2020. Additionally, the Lease

Term section stated that the Lease would “automatically renew month-to-month

unless either party [gave] at least 60 days written notice of termination or intent to

move-out . . . .” The Lease listed Ms. Swanson’s monthly rental payment as $2065.

Ms. Swanson and a representative of PRCP signed the Lease.

Ms. Swanson’s April 27, 2022 Answer

Ms. Swanson filed an “Answer to Rule for Possession” (“Answer”), wherein

she contended that the trial court should dismiss the Rule for Possession for

multiple reasons. In part, she argued that the trial court should dismiss the Rule for

Possession because PRCP had not alleged therein any violation of the Lease. Ms.

Swanson also contended that PRCP had not provided her with notice to vacate as

required by the law and the Lease. Additionally, Ms. Swanson asserted that she

was entitled to occupancy for the month of April 2022 because PRCP filed the

Rule for Possession after cashing her April rent check. Thereafter, the trial court

conducted a hearing on the Rule for Possession on April 29, 2022.

April 29, 2022 Hearing and Judgment

Present at the April 29, 2022 hearing on the Rule for Possession were

Chanette Johns and Alicia Craig (“Ms. Craig”) for PRCP; Peter Title (“Mr. Title”),

counsel for Ms. Swanson; and Ms. Swanson. During the hearing, the following

colloquy occurred regarding the issue of notice:

MS. SWANSON:
I [did not] receive a notice.

THE COURT:
You have the notice with you?

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MS. CRAIG:
I have the notice with me. I also have -- may I approach the
bench?

THE COURT:
Yes.

....

THE COURT:
How was it delivered?

MS. CRAIG:
That was delivered on the door.

THE COURT:
It was tacked?

MS. CRAIG:
Yes.

....

MS. SWANSON:
I never received that notice.

....

THE COURT:
Just let her finish, please. Can I see the notice?

MS. CRAIG:
Yes.

THE COURT:
And you [did not] get this on your door, ma’am?

MS. SWANSON:
No, ma’am. Never saw anything of the sort.

....

THE COURT:
May 13th, ma’am, to vacate.
....

MR. TITLE:
I mean, she [was not] given proper notice.

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THE COURT:
Well, I mean, I have to believe one or the other. She was either
given it or not given it, so —

That same day the trial court signed a judgment, which ordered Ms. Swanson to

vacate her apartment by May 13, 2022.

Ms. Swanson’s May 2, 2022 Motion for Suspensive Appeal

On May 2, 2022, Ms. Swanson filed a “Motion for Suspensive Appeal.”

That same day, the trial court granted Ms. Swanson’s Motion for Suspensive

Appeal “upon her furnishing security in the amount of $500.00” and ordering that

the appeal be returnable to this Court “in accordance with law.”

PRELIMINARY MATTER – PRCP’S MOTION TO DISMISS
SUSPENSIVE APPEAL

Prior to considering the merits, we address a preliminary matter. On October

4, 2022, PRCP filed a Motion to Dismiss with this Court. Therein, PRCP requests

that this Court dismiss Ms. Swanson’s suspensive appeal for failure to comply with

the requirements of La. C.C.P. art. 4735 in two respects. First, PRCP contends that

the appeal bond is insufficient to protect PRCP against any damage it may sustain

as a result of Ms. Swanson’s appeal. Second, PRCP asserts that Ms. Swanson did

not timely pay the appeal bond because she paid it more than twenty-four hours

after the trial court rendered judgment.

Principles Applicable to Motions to Dismiss Appeals

In discussing motions to dismiss appeals, the Louisiana Supreme Court has

explained that “[t]he law favors appeals. Thus, they are to be maintained unless a

legal ground for dismissal is clearly shown.” Davidge v. Magliola, 346 So.2d 177,

179 (La. 1977) (citing Howard v. Hardware Mut. Co., 286 So.2d 334, 336 (La.

1973); La. Power & Light Co. v. Lasseigne, 255 La. 579, 588, 232 So.2d 278, 282

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(1970); Favrot v. Favrot, 252 La. 192, 197, 210 So.2d 316, 317 (1968)). The

burden of proof on a motion to dismiss rests with the mover. See Dhaliwhal v.

Dhaliwal, 52,507 (La. App. 2 Cir. 2/27/19), 265 So.3d 1188, 1194. Regarding

whether a legal ground for dismissal is clearly shown, “[t]his Court is a court of

record and can only review what is contained in the record on review.” NOLA 180

v. Harrah’s Operating Co., 2012-0072, p. 3 (La. App. 4 Cir. 5/16/12), 94 So.3d

886, 888 (citing Mobile-One Auto Sound, Inc. v. Whitney Nat’l Bank, 2011-0535,

p. 12 (La. App. 4 Cir. 11/9/11), 78 So.3d 807, 815).

Alleged Untimeliness of Ms. Swanson’s Payment of the Suspensive Appeal Bond

We begin with PRCP’s contention that Ms. Swanson failed to timely pay the

suspensive appeal bond. In its Motion to Dismiss, PRCP asserts that Ms. Swanson

did not pay the appeal bond until May 5, 2022, which was more than twenty-four

hours after the trial court’s April 29, 2022 judgment, thus constituting a violation

of La. C.C.P. art. 4735. PRCP argues that the trial court’s order granting Ms.

Swanson’s Motion for Suspensive Appeal and ordering her to furnish the appeal

bond “makes clear that [she] had not paid the bond [timely].” Further, PRCP

contends that “the clerk’s office for [the trial court] confirmed that the bond was

not paid until May 5, 2022.”

Before we can decide whether PRCP’s Motion to Dismiss should be granted

on the basis that Ms. Swanson allegedly did not timely pay her appeal bond, we

must determine when Ms. Swanson’s appeal bond was due. Pertaining to the

timing of the payment of a suspensive appeal bond in an eviction proceeding, La.

C.C.P. art. 4735 states:

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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.

(Emphasis added). Concerning the computation of time, La. C.C.P. art. 5059

provides:

A legal holiday is to be included in the computation of a period of
time allowed or prescribed, except when:

(1) It is expressly excluded;

(2) It would otherwise be the last day of the period; or

(3) The period is less than seven days.

In interpreting La. C.C.P. art. 5059, this Court has held that Saturday and Sunday

are legal holidays. See Distefano v. A M & A, Inc., 338 So.2d 755, 757 (La. App. 4

Cir. 1976); Lichtentag v. Burns, 258 So.2d 211, 212 (La. App. 4 Cir. 1972).

Accordingly, when a Saturday or Sunday marks the last day of the governing time

period or if the subject time period is less than seven days, then Saturday and

Sunday are not included in the computation of time. La. C.C.P. art. 5059;

Distefano, 338 So.2d at 757.

Based on La. C.C.P. art. 4735, Ms. Swanson had to pay her appeal bond

within twenty-four hours of the trial court’s April 29, 2022 judgment ordering her

to vacate her apartment. We take judicial notice that April 29, 2022, was a Friday.1

Because the deadline provided by La. C.C.P. art. 4735 to pay the suspensive appeal

bond in an eviction matter is only twenty-four hours, which is less than seven days,

1 See La. C.E. art. 201(C), which states that “[a] court may take judicial
notice, whether requested or not.” Louisiana Code of Evidence Article 201(B)
provides that “[a] judicially noticed fact must be one not subject to reasonable
dispute in that it is . . . [c]apable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”

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Saturday and Sunday are not included in the computation of time for determining

the deadline by when Ms. Swanson had to pay the appeal bond. La. C.C.P. art.

5059(3); Distefano, 338 So.2d at 757; Lichtentag, 258 So.2d at 212. Moreover, in

this instance, the last day of the period, i.e., twenty-four hours after the trial court’s

judgment, would have been Saturday, April 30, 2022, a legal holiday; and the

subsequent day, Sunday, May 1, 2022, also constituted a legal holiday. La. C.C.P.

art. 5059(2); Distefano, 338 So.2d at 757; Lichtentag, 258 So.2d at 212. Therefore,

the deadline for Ms. Swanson to pay the appeal bond was the next succeeding legal

day, i.e., Monday, May 2, 2022.

Our review of the record reveals a copy of a check from counsel for Ms.

Swanson, which is dated May 2, 2022, in the amount of $500 and written to the

order of the clerk of court for the trial court. A line on the check titled “File #”

contains the notation “Appeal Bond.” However, without more information, this

does not affirmatively demonstrate to this Court that Ms. Swanson actually gave

this check to the trial court on May 2, 2022. That is, she may have written the

check on May 2, 2022, but given it to the trial court at a later date. Additionally, a

notation on Ms. Swanson’s Motion for Suspensive Appeal reads “Clerk[’]s Costs

Paid 5/2/22,” and below it are the initials of the deputy clerk for the trial court.

Again, without more information, it is unclear whether the “Clerk[’]s Costs” that

were paid on May 2, 2022, also included Ms. Swanson’s appeal bond.2 As noted

previously, in its Motion to Dismiss, PRCP argues that “[t]he order granting [Ms.

Swanson]’s written motion for suspensive appeal and ordering her to furnish the

2 We note that a party seeking a suspensive appeal is responsible not only for
the appeal bond but also must pay to the trial court the costs of preparing the
record on appeal, including the court reporter’s fee for compiling any transcripts,
as well as the filing fee required by the appellate court. See La. C.C.P. art. 2126.

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appeal bond makes clear that [she] had not paid the bond by May 2, 2022.” Yet,

the trial court signed the order granting Ms. Swanson’s Motion for Suspensive

Appeal on May 2, 2022, thereby leaving open the possibility that Ms. Swanson

paid the appeal bond that same day. PRCP further contends in its Motion to

Dismiss that “the clerk’s office for [the trial court] confirmed that the bond was not

paid until May 5, 2022[;]” but PRCP has not pointed to anything in the record nor

can this Court find anything in the record to support this contention. Thus, the

record before this Court does not provide a clear legal ground for dismissal due to

untimeliness of the payment of the appeal bond.

Moreover, we note that La. C.C.P. art. 2161 states in pertinent part, that

“[e]xcept as provided in [La. C.C.P. art.] 2162,[3] a motion to dismiss an appeal

because of any irregularity, error, or defect which is imputable to the appellant

must be filed within three days, exclusive of holidays, of the return day or the date

on which the record on appeal is lodged in the appellate court, whichever is later.”

The Louisiana First Circuit Court of Appeal has explained that an “appellant’s

tardiness in furnishing security merely constitutes an irregularity or defect

imputable to the appellant which may form a basis for the appellee to move for

dismissal of the suspensive appeal under [La.] C.C.P. art. 2161.” Clement v.

Graves, 2004-1831, p. 6 (La. App. 1 Cir. 9/28/05), 924 So.2d 196, 200 (citing

Wright v. Jefferson Roofing, Inc., 1993-1217 (La. 1/14/94), 630 So.2d 773, 775;

Blue, Williams & Buckley v. Brian Invs., Ltd., 1996-1451, p. 5 (La. App. 1 Cir.

6/20/97), 706 So.2d 999, 1002). Though this Court declined to apply La. C.C.P.

art. 2161 in another eviction matter, Lakewind East Apartments v. Poreé, we find

3Louisiana Code of Civil Procedure Article 2161 is titled “Dismissal by
consent of parties, or because of lack of jurisdiction or right to appeal, or
abandonment; transfer.”

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that case distinguishable. 629 So.2d 422 (La. 1993). Therein, this Court concluded

that La. C.C.P. art. 2161 was inapplicable to the “unusual situation . . . presented

by [the] case” in that “[t]he suspensive appeal bond [was] to be paid in

installments, as each month’s rent [became] due.” Id., 629 So.2d at 424-25. Here,

by contrast, the trial court set a lump sum amount for the appeal bond at $500

rather than a “continuing obligation” as in Lakewind E. Apartments. 629 So.2d at

424. Accordingly, we find La. C.C.P. art. 2161 applicable to the present matter.

See also Good v. Saia, 2007-0145, p. 6 (La. App. 4 Cir. 9/12/07), 967 So.2d 1161,

1165 (applying La. C.C.P. art. 2161 in an eviction matter).

Thus, assuming arguendo that Ms. Swanson did not timely file her appeal

bond by May 2, 2022, as was required by La. C.C.P. art. 4735, this constituted an

irregularity or defect imputable to Ms. Swanson. See Clement. 2004-1831, p. 6,

924 So.2d at 200. Accordingly, PRCP had three days from the latter of the return

day or the date on which the record on appeal was lodged to file its Motion to

Dismiss. See La. C.C.P. art. 2161. In the May 2, 2022 order granting Ms.

Swanson’s Motion for Suspensive Appeal, the trial court set the return date in this

matter “in accordance with law.” Louisiana Code of Civil Procedure Article 2125

states that “[t]he return day of the appeal shall be thirty days from the date

estimated costs are paid if there is no testimony to be transcribed and lodged with

the record and forty-five days from the date such costs are paid if there is

testimony to be transcribed, unless the trial judge fixes a lesser period.” Based on

the notation on Ms. Swanson’s Motion for Suspensive Appeal, she paid the costs to

the trial court on May 2, 2022. There was testimony to be transcribed, i.e., the

April 29, 2022 hearing transcript, so the return day in this matter was forty-five

days from May 2, 2022, which was June 16, 2022. The Clerk of Court for this

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Court notified the parties that the record was lodged on June 15, 2022. Therefore,

the return day was the latter of the two dates provided in La. C.C.P. art. 2161; so

PRCP had three days from June 16, 2022, to file its Motion to Dismiss on the basis

of untimeliness of the payment of the appeal bond. As mentioned previously,

PRCP did not file its Motion to Dismiss until October 4, 2022, which was beyond

the three days allowed by La. C.C.P. art. 2161.

Because this Court is a court of record, appeals are to be maintained unless a

legal ground for dismissal is clearly shown in the record. Our review of the record

reveals that PRCP did not file its Motion to Dismiss until after the deadline

provided by La. C.C.P. art. 2161; accordingly, we find that PRCP failed to carry its

burden of proof, and we deny PRCP’s Motion to Dismiss based on the alleged

untimeliness of Ms. Swanson’s payment of her suspensive appeal bond.

Alleged Insufficiency of Ms. Swanson’s Appeal Bond

Next, we consider PRCP’s contention that Ms. Swanson’s suspensive appeal

should be dismissed because the $500 appeal bond is insufficient to protect PRCP

from damage resulting from this appeal and thus fails to comply with La. C.C.P.

art. 4735. PRCP states that Ms. Swanson’s monthly rent, not including late

charges, totals $2065, such that the appeal bond “does not cover even ¼ of one

month of (overdue) rent.” Moreover, PRCP observes that due to the suspensive

appeal, Ms. Swanson continues to retain possession of the premises to this day,

despite the trial court’s judgment ordering her to vacate by May 13, 2022.

Additionally, PRCP asserts that “[t]he $500.00 bond is not an ‘estimate [of] the

amount of time the case might be on appeal, then multiply that number of months

times the rental price’ nor does it include a requirement for [Ms. Swanson] ‘to post

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the rental amounts as the rent becomes due’ – as required by this Court.” In sum,

PRCP urges this Court to dismiss the appeal due to the insufficiency of the bond.

Louisiana Code of Civil Procedure Article 4735 provides, in pertinent part,

that “[t]he 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.” In interpreting La. C.C.P. art. 4735, this Court

has explained:

[A] trial court generally must choose between two options when setting
a suspensive appeal bond in eviction matters:

In order to set a suspensive appeal bond sufficient to
protect the appellee in this type of case, the trial court has
two choices. One alternative would be to attempt to
estimate the amount of time the case might be on appeal,
then multiply that number of months times the rental
price. The other alternative would be to . . . require the
appellant to post the rental amounts as the rent becomes
due.

429 Bourbon Street LLC v. RMDR Invs., Inc., 2016-0800, pp. 22-23 (La. App. 4

Cir. 11/15/17), 230 So.3d 256, 270 (quoting Lakewind E. Apartments, 629 So.2d at

423). In light of the foregoing, this Court has concluded that a suspensive appeal

bond that covers only one monthly payment is insufficient under La. C.C.P. art.

4735. Atocha St. Charles, LLC v. Terpsichore Props., LLC, 2019-0776, p. 4 (La.

App. 4 Cir. 4/8/20), 294 So.3d 1082, 1084 (citing Lakewind E. Apartments, 629

So.2d at 423-24). See also Good, 2007-0145, pp. 5-6, 967 So.2d at 1165 (wherein

the trial court set the suspensive appeal bond at $7500 after the filing of a motion

for suspensive appeal bond on November 21, 2006; and this Court found the bond

to be “clearly insufficient within the meaning of [La. C.C.P.] art. 4735[,]” noting

that as of December 2006, the rental arrearages totaled $13,830).

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However, this Court has further held that even if an appeal in an eviction

matter cannot be maintained as suspensive due to a failure to comply with the

requirements of La. C.C.P. art. 4735, including the sufficiency of the bond, “the

appeal may be maintained as a devolutive appeal if the requirements of the general

law for a devolutive appeal are met.” Freemin v. Coglaiti, 411 So.2d 471, 472 (La.

App. 1 Cir. 1981) (citing Solomon v. Hickman, 213 So.2d 96 (La. App. 1 Cir.

1968); Alaimo v. Hepinstall, 370 So.2d 1320 (La. App. 4 Cir. 1979); Rourke v.

Cloud, 398 So.2d 57 (La. App. 3 Cir. 1981)). See also Liggio v. Judeh, 446 So.2d

402, 403 (holding that the “[f]ailure to comply with [La. C.C.P.] [a]rt. 4735

prohibits a suspensive appeal, but the appeal can be maintained as devolutive”

(citing Freemin, 411 So.2d at 472)); Womack v. Custom Homes & Renovations,

2002-0193, p. 3 (La. App. 4 Cir. 6/5/02), 820 So.2d 1196, 1199 (converting a

suspensive appeal into a devolutive appeal after appellant failed to pay the costs

required for a suspensive appeal). For example, in Atocha, the trial court set a

suspensive appeal bond in an amount that covered only one monthly payment, and

this Court found the appeal bond was insufficient to protect against all such

damages the appellee might sustain as a result of the appeal. 2019-0776, p. 4 (La.

App. 4 Cir. 4/8/20), 294 So.3d 1082, 1084. This Court granted the appellee’s

motion to dismiss the suspensive appeal on the basis of insufficiency of the appeal

bond but maintained the appeal as a devolutive one pursuant to La. C.C.P. art.

2087. Id. at p. 4, 294 So.3d at 1084-85 (citing 1205 St. Charles Condo. Ass’n Inc.

v. Abel, 2018-0566, p. 15 (La. App. 4 Cir. 12/19/18), 262 So.3d 919, 928).

In the matter sub judice, we likewise find that the $500 bond amount set by

the trial court was insufficient to cover any damages that PRCP may sustain as a

result of this appeal. Specifically, Ms. Swanson’s monthly rental payment totals

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$2,065; thus, the $500 appeal bond does not even cover one month of her rental

payment to PRCP. See Atocha, 2019-0776, p. 4, 294 So.3d at 1984; Good, 2007-

0145, pp. 5-6, 967 So.2d at 1165. Nonetheless, we consider whether this appeal

meets the requirements of La. C.C.P. art. 2087 and can be maintained as

devolutive.

Louisiana Code of Civil Procedure Article 2087 pertains to the “[d]elay for

taking devolutive appeal.” It provides, in pertinent part:

A. Except as otherwise provided in this Article or by other law,
an appeal which does not suspend the effect or the execution of an
appealable order or judgment may be taken within sixty days of any of
the following:

(1) The expiration of the delay for applying for a new trial or
judgment notwithstanding the verdict, as provided by Article 1974[4]
and Article 1811,[5] if no application has been filed timely.

(2) The date of the mailing of notice of the court’s refusal to
grant a timely application for a new trial or judgment notwithstanding
the verdict, as provided under Article 1914.

La. C.C.P. art. 2087(A). After the trial court rendered judgment on April 29, 2022,

neither party applied for a new trial or a judgment notwithstanding the verdict. Ms.

Swanson filed her Motion for Suspensive Appeal on May 2, 2022; therefore, it was

well within the deadline of sixty days after the expiration of the delay for applying

4 Louisiana Code of Civil Procedure Article 1974 provides that “[a] party
may file a motion for a new trial not later than seven days, exclusive of legal
holidays, after the clerk has mailed or the sheriff has served the notice of judgment
as required by Article 1913.”
5 Louisiana Code of Civil Procedure Article 1811(A)(1) states:

Not later than seven days, exclusive of legal holidays, after the clerk
has mailed or the sheriff has served the notice of judgment under
Article 1913, a party may move for a judgment notwithstanding the
verdict. If a verdict was not returned, a party may move for a
judgment notwithstanding the verdict not later than seven days,
exclusive of legal holidays, after the jury was discharged.

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for a new trial or a judgment notwithstanding the verdict. La. C.C.P. art. 2087(A).

Accordingly, Ms. Swanson’s appeal can be maintained as devolutive because the

requirements of the general law for a devolutive appeal have been met. See 1205

St. Charles Condo. Ass’n, 2018-0566, p. 15, 262 So.3d at 928 (citing Freemin, 411

So.2d at 472).

In sum, we conclude that PRCP failed to meet its burden of proving that Ms.

Swanson untimely paid her suspensive appeal bond but grant PRCP’s Motion to

Dismiss due to the insufficiency of the suspensive appeal bond. However, pursuant

to La. C.C.P. art. 2087, we maintain the appeal as devolutive. Next, we turn to the

merits.

DISCUSSION

In her sole assignment of error on appeal, Ms. Swanson contends that “[t]he

[trial] [c]ourt erred in ordering [her] to vacate the Apartment no later than May 13,

2022[,] in its judgment, since no proper and legal written notice of termination of

the Lease was given.” In her brief, Ms. Swanson argues that the Lease required a

60-day written notice of termination following the expiration of the lease term and

that no such notice was given. She contends that even if the Lease did not require a

60-day notice of termination, PRCP failed to send any written notice of termination

of the Lease before filing its Rule for Possession as required by La. C.C.P. art.

4701. Further, Ms. Swanson states that “even if for the sake of argument [she] was

in default of the Lease for nonpayment of a month’s rent for October 202[1]

(which she strongly denies), breach of the lease was not alleged in the rule for

possession” as is required by La. C.C.P. art. 4701. Lastly, Ms. Swanson also argues

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that PRCP’s acceptance of her April 2022 rent check would have vitiated any prior

notice to vacate.6

Standard of Review

In an eviction proceeding, an appellate court reviews the trial court’s factual

findings under the manifest error standard of review. 235 Holdings, LLC v. 235

Enters., LLC, 2020-0658, p. 5 (La. App. 4 Cir. 12/15/21), 334 So.3d 862, 866

(citing Armstrong Airport Concessions v. K-Squared Rest., LLC, 15-0375, p. 9 (La.

App. 4 Cir. 10/28/15), 178 So.3d 1094, 1100). Under this standard of review, an

appellate court “may not overturn a judgment of a trial court absent an error of law

or a factual finding which is manifestly erroneous or clearly wrong.” Stobart v.

State through Dep’t of Transp. & Dev., 617 So.2d 880, 882 n.2 (La. 1993). If,

however, the appeal presents a legal question, then it is subject to de novo review.

235 Holdings, LLC, p. 5, 334 So.3d at 867. Further, as discussed previously, “[t]his

Court is a court of record and can only review what is contained in the record on

review.” NOLA 180, 2012-0072, p. 3, 94 So.3d at 888. Next, we consider the

principles applicable in eviction proceedings.

Principles Applicable to Eviction Proceedings

Louisiana Code of Civil Procedure Article 4701 is titled “Termination of

lease; notice to vacate; waiver of notice.” It provides, in pertinent part:

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.

6 At the April 29, 2022 hearing, Ms. Craig alleged that PRCP accepted Ms.
Swanson’s April 2022 rent check because “[Ms. Swanson] had a past-due balance”
after “[s]he refused to pay October . . . 2021 rent due to Hurricane Ida.”

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(Emphasis added). In discussing 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 . . . .”

Lichtentag, 28 So.2d at 213. “The notice to vacate is an essential part of the

summary eviction procedure provided for in La. C.C.P. art. 4701. Without this

notice, there can be no judgment issued under La. C.C.P. art. 4701.” Kushi

Healthcare, L.L.C. v. St. James Behavioral Health Hosp., Inc., 2015-0007, p. 9

(La. App. 1 Cir. 6/5/15), 174 So.3d 1192, 1198 (citing Bowling U.S.A., Inc. v.

Genco, 536 So.2d 814, 816 (La. App. 1 Cir. 1988)).

The burden of proving notice rests with the lessor. Williams v. Reynolds, 448

So.2d 845, 847 (La. App. 2 Cir. 1984). See also Miller v. White, 182 La. 837, 162

So. 638 (1935). A judgment of eviction must be reversed if the lessor fails to meet

its burden of proof. Hous. Auth. of New Orleans v. Haynes, 2014-1349 (La. App. 4

Cir. 5/13/15), 172 So.3d 91, 99 (citing Hous. Auth. of New Orleans v. King, 2012-

1372, p. 4 (La. App. 4 Cir. 6/12/13), 119 So.3d 839, 842). With these principles in

mind, we review the record to determine whether the lessor, PRCP, gave proper

notice to the lessee, Ms. Swanson.

Notice

Ms. Swanson asserts that the trial court’s April 29, 20222 judgment is in

error because PRCP did not give her proper notice. Our review reveals that there is

no notice to vacate in the record. Though the transcript of the April 29, 2022

hearing indicates that PRCP showed a purported notice to vacate to the trial court,

PRCP never entered it into evidence. Because “[t]his Court is a court of record and

can only review what is contained in the record on review” and “[w]ithout [the]

notice [to vacate], there can be no judgment issued under La. C.C.P. art. 4701[,]”

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we must reverse the trial court’s April 29, 2022 judgment ordering Ms. Swanson to

vacate the premises pursuant to La. C.C.P. art. 4701. NOLA 180, 2012-0072, p. 3,

94 So.3d at 888; Kushi Healthcare, L.L.C., 2015-0007, p. 9, 174 So.3d at 1198.

Having concluded that the record does not support a finding that PRCP

carried its burden of proving notice to vacate, we pretermit discussion of Ms.

Swanson’s other arguments regarding whether PRCP alleged a breach of the lease

in the Rule for Possession and any effect on these proceedings of PRCP having

accepted her April 2022 rent check.

DECREE

For the foregoing reasons, we grant PRCP’s Motion to Dismiss Suspensive

Appeal; however, we maintain the appeal as devolutive. Further, we reverse the

trial court’s April 29, 2022 judgment, which ordered Ms. Swanson to vacate the

subject premises by May 13, 2022.

MOTION TO DISMISS APPEAL GRANTED, SUSPENSIVE APPEAL
DISMISSED, AND APPEAL MAINTAINED AS DEVOLUTIVE;
JUDGMENT REVERSED

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