Marilyn A. Taylor v. Robyn Joseph

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.

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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.

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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.”

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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,

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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

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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

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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

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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

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