Louisiana Civil Appeals

Electronic notices from the Louisiana First Circuit

This post is the second in a series on monitoring case developments in Louisiana appellate courts. Last Tuesday, we looked at the Louisiana Supreme Court. Today we look at the Louisiana First Circuit.

The First Circuit offers lawyers practicing before it the option of receiving e-mail notices from the court in lieu of notice by mail. You can register by visiting this web page, filling in the boxes, and checking the box indicating agreement to receive e-mail notice in lieu of traditional notice by mail. Other pages allow you to change your e-mail address and cancel your registration. To learn more about the program, visit the court’s FAQ page.

Once you register, you no longer receive notices by mail. Instead, you receive them as PDF attachments to an e-mail.

I have been using the court e-notify system since it was originally introduced, and it has worked well for me. Frankly, I don’t know why any lawyer practicing in the First Circuit would not register for this service. If your opponent registers and you don’t, your opponent will learn of the decision at least a day before you do. And if you are on the losing end of the decision, that’s at least one less day to work on your rehearing application or your writ application to the Louisiana Supreme Court.

The First Circuit’s e-mail notification works only for cases in which you are a counsel of record. As far as I can tell, the court does not yet provide electronic notification of when opinions in general are issued. But the court (like all Louisiana appellate courts) publishes all its opinions on its web site. And the court also publishes its schedule of decision days, with publication date based on the month of oral argument. So once a case you’re interested in has been orally argued or submitted without oral argument, you can check the schedule to see when the opinion should be released and calendar the date. If you’re interested in generally monitoring all of the court’s decisions, just calendar all the scheduled opinion days and, when an appointed day arrives, check the opinions page.

How I monitor the Louisiana Supreme Court

When a court decides your case, you want to know immediately. Some courts (for example, the Louisiana First and Fourth Circuits) offer e-mail notice of decisions to counsel of record; those e-mails usually go out the same day that the decision is released. Other courts continue to rely on notice by U.S. Mail, meaning that the decision does not arrive until, at the earliest, the day after it is released.

Fortunately, each Louisiana appellate court’s web site offers some means of monitoring the issuance of decisions. This blog post is the first in a series on that topic. We will start at the top with the Louisiana Supreme Court.

If you go to the LSC’s home page and look in the right-hand column, you will see a link to the Court’s News Release Alert Service. If you click on the link and follow the directions, you will receive an e-mail whenever the Court issues a news release. A news release comes out whenever the Court announces the issuance of opinions and orders (i.e. writ grants, writ denials, decisions on rehearing). The e-mail will contain a link to the news release. Clicking on that link will take you to a page listing the Court’s latest opinions, orders, or other actions, usually on the same day that they are announced.

While the e-mail subscription service works well most of the time, I have found that, on rare occasions, the e-mail arrives a day or two late. So I take the added step of subscribing to the Court’s RSS service. The link for that is in the right-hand column of the LSC’s home page, directly below the link for the e-mail news alerts. Whenever the Court issues a news release, the release is sent to my RSS reader (I use Feedly), which I also use to follow blogs that I like. While the LSC’s e-mail service works well most of the time, I’ve found the RSS service to be as timely and more reliable. Also, unlike the e-mail service, the RSS service sends an announcement whenever an oral-argument docket is posted. Because it includes oral-argument dockets, the RSS service provides greater coverage than the e-mail service.

So what is this RSS? A simple explanation can be found here, and a more detailed one here. For readers, RSS is a means to monitor new posts to web logs and other web sites (e.g. the Louisiana Supreme Court and the U.S. Fifth Circuit) without having to visit the individual sites. The posts and other announcements are aggregated in your RSS reader, allowing you to scan them on a single web page without having to visit each individual web site. As noted in my April 25 post, I have been using Feedly as my RSS reader, and so far I love it.

Pardon my shameless self-promotion.

Yesterday the good folks at Law360 Appellate published this little Q&A with yours truly. Reading it requires either a subscription or a one-time free registration in which they collect your name and e-mail address.¹ Among the more interesting questions they asked:

• What aspects of your practice area are in need of reform and why? (Short answer: the high cost of preparing the record for an appeal.)
• What is an important issue or case relevant to your practice area and why? (Short answer: Gonzales v. Xerox Corp., discussed in this post.)

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¹ It’s a LexisNexis company, so they probably already have your e-mail address anyway.

Why I blog about things I barely know

Today’s Daily Meditation by Henri Nouwen describes the satisfaction I get from blogging:

Often we think that we do not know enough to be able to teach others. We might even become hesitant to tell others what we know, out of fear that we won’t have anything left to say when we are asked for more.

This mind-set makes us anxious, secretive, possessive, and self-conscious. But when we have the courage to share generously with others all that we know, whenever they ask for it, we soon discover that we know a lot more than we thought. It is only by giving generously from the well of our knowledge that we discover how deep that well is.

If you ever considered starting your own blog, maybe this will be a word of encouragement.

For appellate lawyers: how to brief preservation of error

Over at Texas Appellate Watch, Rich Phillips has a useful tip for briefing the appellate court on preservation of error. In short: describe each instance where the issue was raised in the trial court and shot down by the trial judge. Not just the first intance or the last instance, but each instance. And of course, provide a record citation for each instance. Rich cites a Texas case to support his point, but the lesson applies in any appellate court in any jurisdiction.

For RSS readers, I recommend Feedly.

For reasons known only to themselves, the good folks at Google are cancelling the Google Reader come July. If you have been using Google Reader to follow blogs (including this one), and if you are still looking for another reader, then I recommend Feedly. I have been giving it a workout the past few days, and now that I’ve got the hang of it, I like it better than Google Reader.

Not the definition of “appeal”

I realize that Ambrose Bierce strove for satire when defining things. So I don’t take seriously his definition of appeal: “v.t.: In law, to put the dice into the box for another throw.”

While that may describe the appellant’s hope for the appeal’s outcome, the appellant must remember that, for many questions, the dice are loaded. The legal term for the loading of the dice is “standards of review.” Too big a topic to tackle in one blog post. For now, suffice it to say that on many issues, the appellate court defers to the trial court. Still, if anyone out there is preparing an article or a CLE presentation on the standards of review, and needs a witty quotation to kick it off — you’re welcome.

Can denial of summary judgment be appealed? No—unless ...

(Warning: The following post proves that there is no appellate procedural issue too arcane for this blog.)

Can a party appeal a denial of summary judgment? Can a trial court designate a denial of summary judgment as final and immediately appealable? According to the Code of Civil Procedure, the answer to both questions is “no.” Only a final judgment can be appealed. See La. Code Civ. P. art. 2083. A final judgment is one that determines the merits in whole or in part. Id. art. 1841. A denial of summary judgment does not determine the merits, not even in part; therefore it is not a final judgment. While a partial final judgment can be designated as final under art. 1915(B), a denial of summary judgment cannot be so designated, because it is not a final judgment. See, e.g., Clovelly Oil Co. v. Midstates Petroleum Co., 12-142 p. 5 (La. App. 3 Cir. 6/12/12), 95 So. 3d 1168, 1171.

That seems ironclad enough. But what if the parties file cross-motions for summary judgment, and in a single judgment, the trial court grants one motion and denies the other, and designates the entire judgment as final under art. 1915? Such a judgment would certainly be appealable to the extent it grants partial summary judgment. But on the appeal, can the appellate court also review denial of the appellant’s summary-judgment motion?

In two cases presenting this scenario, Louisiana appellate courts have reviewed both the granting of the appellee’s summary-judgment motion and the denial of the appellant’s cross motion. See Dean v. Griffin Crane & Steel, Inc., 05-1226 p. 4 n. 3 (La. App. 1 Cir. 5/5/06), 935 So. 2d 186, 189 n. 3; Maya v. Priola Constr. Corp., 12-2027 (La. App. 3 Cir. 3/6/13), — So. 3d —.*

Arguably, Dean was a special case: the appellant had applied for a supervisory writ to review denial of summary judgment, but the court dismissed the writ application on grounds that the appellant-applicant could obtain review in the appeal. In his concurrence, Judge Downing expressed doubt about the court’s appellate jurisdiction over denial of summary judgment, but concurred “[u]nder law of the case principles” because of the court’s prior order dismissing the writ application.

The Maya court did not mention the jurisdictional issue, even though it was discussed in the appellant’s brief.* The court simply determined that issues of material fact prevented either side from winning summary judgment. Thus, the court reversed the granting of the appellee’s motion and affirmed denial of the appellant’s motion.

Notwithstanding Dean and Maya, my suggestion to anyone on the losing end of cross-motions for summary judgment is to appeal the granting of the other side’s motion and to file a timely application for a supervisory writ to review denial of your motion. The majority resolution of appellate jurisdiction in Dean is shaky in light of Judge Downing’s concurrence. And in Maya, there was no real consequence from the court’s considering the merits of the trial court’s denial of summary judgment. Since the court affirmed that aspect of the judgment, the result was the same as it would have been if the court limited its review to the granting of partial summary judgment.

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* Disclosure: I represented the appellant in Maya.

Forms for your next federal appeal

Today I was asked whether I had a form for the certificate of compliance with Fed. R. App. P. 32(a), required for most federal appellate briefs. Although I did not have a form handy, a quick Google search turned up this useful page of appellate forms provided by the U.S. Courts themselves. Something to bookmark for future reference.

Another lessson on the form of an appealable judgment

A recent decision by the Louisiana Third Circuit provides another lesson on the proper form of a final, appealable judgment. The judgment decreed:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the Lafayette Parish School Board’s Motion for Partial Summary Judgment is granted.

The plaintiff appealed, but the Third Circuit dismissed her appeal on grounds that it “lacks appropriate decretal language” necessary for a final, appealable judgment. Thomas v. Lafayette Parish School Sys., 13-91 (La. App. 3 Cir. 3/6/13), 2013 WL 81205.

What language should a judgment contain to be appealable? The Thomas court explained:

A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.

The judgment in Thomas lacked this language. And since, on its face, it granted partial summary judgment, the Thomas court found it ambiguous, as it did not clearly state whether it disposed of all or only a portion of the plaintiff’s claims.