JOSEPH BAZILE JR AND BARBARA MIRE v. GSS HOLDINGS LA LCC VETERANS FOOD MART LLC AND OCCUPANTS AT 1227 VETERANS MEMORIAL BOULEVARD IN KENNER LOUISIANA (2025)

In this eviction proceeding, plaintiffs/relators, Joseph J. Bazile, Jr. and Barbara B. Mire, seek review of the trial court's November 12, 2024 order granting GSS Holdings LA, LCC (“GSS”) and Veterans Food Mart, LLC (“VFM”) a suspensive appeal from the court's November 8, 2024 eviction judgment. For the following reasons, we vacate the trial court's judgment granting GSS and VFM a suspensive appeal and find GSS and VFM are not entitled to a suspensive appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Bazile and Ms. Mire (the “Owners”) own commercial real estate located at 1227 Veterans Memorial Boulevard (“1227 Veterans”) in Kenner, Louisiana. The Owners leased this property as a Brothers Food Mart. In late-2021, Mountain Express Oil Company (“MEX”) became the owner of various Brothers entities, including the Brothers located at 1227 Veterans and its leasehold interest in 1227 Veterans. In March 2023, MEX granted a Sublease of 1227 Veterans to GSS. Not long after, MEX sought to reorganize in bankruptcy, but in August 2023, the bankruptcy was converted to a liquidation, and the bankruptcy judge terminated all unexpired leases, including the 1227 Veterans lease, and rejected all subleases, including the 1227 Veterans sublease.

On July 19, 2024, the Owners filed a verified rule for eviction action against GSS and VFM with exhibits, including affidavits, bankruptcy court orders, the lease agreement, and proof of notice. On September 3, 2024, GSS, individually and on behalf of VFM, asserted several exceptions. On November 5, 2024, GSS, individually and on behalf of VFM, filed an answer, denying the allegations of the rule for eviction and asserting affirmative defenses.

The eviction trial took place on November 7, 2025, at which GSS and VFM did not argue or try any of the affirmative defenses or exceptions pled. Later in the afternoon after the eviction hearing, Sukhranjan Multani, individually and as the managing member of GSS and VFM, filed a Verification Affidavit into the court record. The Verification Affidavit only specifically referred to GSS's answer to the summary eviction. In the Verification Affidavit, Mr. Multani attested to the factual statements in the answer and the authenticity, truth, and correctness of the exhibits attached to the answer. After the trial, the trial court granted the Owners’ rule for eviction and ordered GSS and VFM to deliver full possession of the premises within 15 days of the November 8, 2025 judgment.

On November 12, 2024, GSS and VFM filed an ex parte motion and order for suspensive appeal and a request for an order setting bond. The trial court granted GSS and VFM a suspensive appeal and set the bond at $16,500.00. The court's order, however, requires that GSS and VFM post an additional $5,500.00 on the first day of each month beginning February 1, 2025 for every month the appeal remains pending.

DISCUSSION

In the instant proceeding before us, the Owners argue that the trial court erred in granting GSS and VFM a suspensive appeal of the eviction judgment because GSS and VFM are only entitled to proceed with a devolutive appeal. The Owners contend GSS and VFM do not meet the requirements of La. C.C.P. art. 4735, and therefore, are not entitled to a suspensive appeal, which would allow them to retain possession of 1227 Veterans during the pendency of their appeal.

GSS and VFM respond that they are entitled to a suspensive appeal, because they answered the eviction under oath and asserted affirmative defenses that, had they prevailed, would have entitled them to retain possession of the premises.

La. C.C.P. art. 4735 provides:

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.

In a substantially similar case, this court found that lessees were not entitled to a suspensive appeal because the sublessor was not the occupant of the property and the sublessee did not answer the rule for eviction under oath or allege an affirmative defense, which, if proven, would have entitled them to retain possession of the premises. LHJ Property L.L.C. v. GSS Holdings LA, L.L.C., and Manhattan One Stop, L.L.C., No. 24-C-67, p. 6-7 (La. App. 5 Cir. 3/28/24).

The record before us indicates GSS has declared that it does not occupy 1227 Veterans, and that VFM does. As a result, GSS would not be entitled to retain possession of the property. Id. We therefore find that GSS has no basis for a suspensive appeal under La. C.C.P. art. 4735, having declared that it does not possess the property.

With regard to VFM, the Owners claim VFM does not meet the requirements of La. C.C.P. art. 4735, because it did not answer the rule for eviction under oath or assert any affirmative defenses which, if proven, would entitle them to retain possession. The Owners argue that Mr. Multani only verified the answer under oath on GSS's behalf. We recognize that GSS filed the answer individually and on behalf of VFM, and that in the Verification Affidavit filed on November 7, 2024, following the eviction hearing, Mr. Multani represented that he is the managing member of GSS and VFM. Whether VFM filed an answer under oath is circumspect considering GSS and VFM previously insisted they were two separate entities requiring separate notice of the eviction, and the Verification Affidavit only specifically refer to GSS's answer.

Nonetheless, VFM's right to a suspensive appeal of an eviction ruling case also requires the pleading of an affirmative defense which would entitle VFM to retain possession of the premises. La. C.C.P. art. 4735. VFM cannot satisfy this requirement.

An affirmative defense raises a new matter that, assuming the allegations in the petition to be true, will have the effect of defeating a plaintiff's demand on its merits. Welch v. United Medical Healthwest-New Orleans, L.L.C., 21-684 (La. App. 5 Cir. 8/24/22), 348 So.3d 216, 221. The party raising an affirmative defense has the burden of proving it by a preponderance of the evidence. Id.; Norton v. Norton, 21-212 (La. App. 5 Cir. 12/22/21), 335 So.3d 371, 386-87.

At the trial on the merits of the eviction rule, GSS and VFM did not argue or try any of the exceptions asserted in the answer. It is therefore clear that the affirmative defenses in the answer were asserted arbitrarily. Upon review, we find GSS and VFM have not asserted an affirmative defense which would entitle VFM to retain possession. They therefore cannot satisfy the requirements of La. C.C.P. art. 4735.

Considering the foregoing, we find GSS and VFM are not entitled to a suspensive appeal. We therefore vacate the trial court's order granting a suspensive appeal and convert this appeal to a devolutive appeal.

DECREE

For the reasons stated, we vacate the trial court's November 12, 2024 judgment granting GSS and VFM a suspensive appeal and convert this appeal to a devolutive appeal.

JUDGMENT VACATED; SUSPENSIVE APPEAL CONVERTED TO DEVOLUTIVE APPEAL

FIFTH CIRCUIT

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SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL TIMOTHY S. MARCEL

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