Appeal too late? Maybe not.

Last week, the Louisiana Third Circuit released an interesting opinion about a fine point of appellate procedure, State in the Interest of B.R.C., 16-273 (La. App. 3 Cir. 5/25/16).

Here’s the set-up. The appeal was brought under Children’s Code art. 332, under which the appeal delay is 15 days from the mailing of notice of judgment. The motion for appeal was filed on February 25. According to the record, notice of judgment was mailed on February 8, making the appeal untimely. But the appellant contended that, according to the postage-meter date on the envelope, notice of judgment was actually mailed no earlier than February 10, which would make the February 25 appeal timely.

The Third Circuit held that, while it could not accept a photocopy of the postage-meter date in deciding the merits of the appeal, it could consider the photocopy in deciding whether to remand the case to the trial court to determine the actual date that notice of judgment was mailed. Following that hearing, the record was to be supplemented with the hearing transcript, any pleadings or evidence offered in connection with the hearing, and the trial court’s judgment concerning the actual date that notice of judgment was mailed. As precedent for this unusual procedure, the court cite Ventre v. Pacific Indemnity Co., 391 So. 2d 95 (La. App. 3 Cir. 1980).


When the court reporter can—and cannot—request an extension of the return date

In an appeal, the court reporter can (and often does) request an extension of the return date if the reporter needs more time to complete the transcript. See La. Code Civ. P. art. 2127.2. But what if the transcript is needed for a supervisory-writ application, and the court reporter is unable to complete the transcript within the return date set by the trial court. Can the court reporter move for an extension of the return date for the writ application. According to a 2002 decision by the Louisiana Second Circuit, the answer is “no.” If the would-be relator relies on a court reporter’s motion to extend the return date for a writ application, the application may be dismissed as untimely. See Lafferty v. Allstate Ins. Co., 36,119 (La. App. 2 Cir. 2/28/02), 806 So. 2d 1000


La. Supreme Court Annual Report

The 2015 edition of the Louisiana Supreme Court’s Annual Report is available on the court’s web site. It is full of statistics useful to appellate lawyers, such as the writ-grant rates in each Louisiana appellate court and numbers of rehearing applications filed and granted. I recommend that you download a copy for ready reference the next time you’re asked the odds of a writ application’s being granted.


Request for reasons does not suspend time to appeal

A recent decision by the Louisiana Fifth Circuit provides a hard lesson in appellate procedure. The lesson: When the clerk of court mails notice of final judgment, the appeal clock is ticking. Neither a request nor an appellate court’s order to provide written reasons for judgment stops the clock.

The case is Alexander v. Maki, 15-517 (La. App. 5 Cir. 1/4/16). Here is the sequence of events:

  • June 26, 2014: Second Parish Court issued a judgment, granting defendants’ motion for summary judgment and dismissing the plaintiff’s suit with prejudice.
  • July 7, 2014: The clerk of court mailed notice of the June 26 judgment.
  • July 16, 2014: Plaintiff filed a request for written reasons for judgment.
  • July 28, 2014: The trial court issued a judgment instructing plaintiff’s counsel to obtain a copy of the trial court’s transcribed oral reasons for judgment. Plaintiff applied to the court of appeal for a supervisory writ to review denial of her request for written reasons.
  • October 9, 2014: The court of appeal granted a supervisory writ, ordering the trila court to provide written reasons for judgment.
  • October 14, 2014: The trial court issued written reasons for judgment.
  • March 11, 2015: According to the plaintiff, the clerk mailed notice of written reasons for judgment.
  • April 8, 2015: Plaintiff filed a motion to appeal the granting of summary judgment.

The court of appeal dismissed the plaintiff’s appeal as untimely. “A judgment ad reasons for judgment are two separate and distinct legal documents,¨ the court reasoned, “and appeals are taken from the judgment, not the reasons for judgment. [Citations omitted.] The appealable judgment in this case is the summary judgment issued by the trial judge on June 26, 2014.” Because the plaintiff did not take the appeal until about nine months after notice of the final judgment, her appeal was untimely.

 


Where to find the skinny on appellate judges (La. or fed.)

If you ever have the need to research the background of U.S. Fifth Circuit judges, check out Ballotpedia’s page on the U.S. Fifth Circuit. There, you will find links to pages on each judge, which in turn contain links to any online information about that judge. 

Ballotpedia also has a Louisiana page, with links to pages on the Louisiana Supreme Court and the Louisiana Courts of Appeal. Those pages, in turn, have links enabling you to drill down to pages on a particular court or a particular justice or judge.


No appealable judgment, no appeal.

Before you can appeal, you need an appealable judgment. That is the lesson of two recent cases, one from the Louisiana Fourth Circuit, the other from the U.S. Fifth Circuit. Each provides a lesson in appellate jurisdiction.

In Tsegaye v. City of New Orleans, 2015-0676 (La. App. 4 Cir. 12/18/15), — So. 3d —, 2015 WL 9263888, the Fourth Circuit dismissed the appeal because the judgment appealed from lacked the necessary decretal language. What is this “decretal language”? Writing for the court, Judge Bonin explained:

[F]or the language of a judgment to be considered “decretal,” it “must name the party in favor of whom the ruling is ordered, the party against whom the ruling is is ordered, and the relief that is granted or denied.” [Bd. of Supervisors of LSU v. Mid City Holdings, LLC, 14-0506 p. 3 (La. App. 4 Cir. 10/15/14), 151 So. 3d 908, 910] (emphasis added).

The judgment appealed from recited that a defendant’s motion for summary judgment was granted, but failed to identify the losing party or state the relief granted by the judgment, that is, it failed to include language dismissing the plaintiff’s suit.

Up to this point, the opinion followed many other Louisiana opinions dismissing appeals for lack of decretal language in the judgment being appealed. But Tsegaye added an interesting wrinkle: in its order granting the appeal, the trial court purported to designate the judgment as final under La. Code Civ. P. art.1915. But the art. 1915 designation was insufficient to make up for the absence of decretal language in the judgment. 1

Lesson: An art. 1915(B) designation does not work on a judgment lacking decretal language.

The recent U.S. Fifth Circuit case of Luvata Grenada, L.L.C. v. Danfoss Industries S.A. de C.V., No. 15-60477 (5th Cir. Feb. 11, 2016), presented a different scenario. There, the district court granted one defendant’s motion to dismiss for lack of personal jurisdiction, retaining jurisdiction over the other defendant. Under Fed. R. Civ. P. 54(b), a judgment dismissing fewer than all defendants is not appealable without a designation of finality and a finding of no just reason for delay. But rather than move the district court to amend the judgment under Rule 54(b), the plaintiff and the remaining defendant stipulated to a voluntary dismissal without prejudice. On appeal, both parties argued that the Fifth Circuit had appellate jurisdiction because the voluntary dismissal converted the previously non-final judgment into a final judgment. The Fifth Circuit disagreed, explaining, “The parties did not obtain a Rule 54(b) certification from the district court, and they cannot achieve the same result by ‘self help.’”

Lesson: If you need a Rule 54(b) designation, move for and obtain it from the district court. Otherwise, even with a cooperative appellee, your appeal is doomed.

__________

1. Fortunately, the parties’ appellate efforts were not wasted because the Fourth Circuit converted the appeal into an application for a supervisory writ. The circumstances allowing such a conversion will be the subject of another post.


Change in La. writ practice for denials of summary judgment

I was recently reminded of an amendment to La. Civ. Code art. 966, effective January 1, 2016, that will affect applications for supervisory writs to review denials of summary judgment. Under art. 966(H), before reversing the denial of a summary judgment and granting summary judgment to dismiss a case or a party, the court of appeal must assign the case for briefing and give the parties an opportunity to request oral argument. Under prior law, a writ grant usually resulted in a peremptory ruling granting summary judgment.

I remember a discussion of this amendment late last year at the LSBA’s Advanced Appellate Advocacy Seminar, during a presentation by Judges John Michael Guidry and Rosemary Ledet. The amendment is intended to level the playing field for parties supporting and opposing summary judgment. The reasoning is that, when summary judgment is granted, the judgment can be appealed, meaning that the parties have the right to file briefs and to request oral argument. The idea is to give the parties the same level of attention when summary judgment is denied and the party seeking summary judgment applies for a supervisory writ.

The only flaw I see in this reasoning is that the court of appeal is not required to follow the new procedure if it either denies the application or grants the application and affirms on the merits; the new procedure applies only when the appellate court reverses the denial of summary judgment. Time and experience will tell whether the new procedure does what it’s intended to do.

(To see my prior post about this amendment, follow this link.)


Appellate CLE for those seeking La. appellate certification

If you plan to apply this year to the Louisiana Board of Legal Specialization for certification in appellate law, listen up. One thing you’ll need is 18 hours of appellate CLE. And one place to get a good chunk of those hours (11.75 by my count) is the upcoming DRI Appellate Advocacy Seminar. The seminar will be held February 10–12, 2016 in Scottsdale, Arizona. There’s still time to get the early-registration discount—the cutoff for that is January 26. For information about registration and the program, follow this link.