Tomorrow is a big day for Louisiana appellate lawyers: it’s exam day for everyone seeking certification in appellate practice by the Louisiana Board of Legal Specialization. They said to bring a black pen; I’ll be bringing a half dozen. Good luck to everyone taking the exam. May we all pass!
Here’s a procedural oddity to start your weekend. Ordinarily, you cannot appeal a denial of summary judgment, not even if the trial court designates it as final under La. Code Civ. P. art. 1915(B). But let’s suppose that the parties file cross-motions for partial summary judgment on a particular issue. The trial court grants one motion, denies the other, and designates the judgment as final under art. 1915(B). On appeal from the granting of partial summary judgment, can the appellant also appeal the denial of its own motion for partial summary judgment? According to a blurb I came across today, the answer is “yes”:
In the case of an appeal of a partial judgment or a partial summary judgment designated as final under La. C.C.P. art. 1915(B), an appellant may also appeal an interlocutory judgment involving the same or related issues, such as a judgment denying a cross-motion for summary judgment. See Dean v. Griffin Crane & Steel, Inc., 05-1226, p. 4 n. 3 (La. App. 1st Cir. 5/5/06), 935 So. 2d 186, 189 n. 3, writ denied, 06-1334 (La. 9/22/06), 937 So. 2d 387.
If you’re a Louisiana lawyer looking for appellate CLE, read on. The Louisiana State Bar Association is holding its Appellate Practice Seminar on August 26 in New Orleans. The seminar is co-sponsored by the LSBA’s Appellate Section and its Civil Law and Litigation Section. To view the program schedule and to register online, follow this link.
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).
This morning I was privileged to present a one-hour session on appellate practice for the Louisiana state Bar Association’s Bridging the Gap seminar, a program designed for newly sworn-in lawyers. For those who attended, and anyone else who may be interested, here are PDF copies of my presentation and my written materials. To find those bonus goodies that I promised, follow this link.
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.
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.
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.
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.
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.