A recent writ decision by the Louisiana First Circuit provides a valuable lesson on timeliness. As most of you know, a party wishing to apply to the court of appeal for a supervisory writ must first file, in the trial court, a notice of intent to seek a supervisory writ and obtain an order setting a return date—a deadline by which to file the application in the court of appeal. These steps must be completed within 30 days after notice of the trial court’s ruling sought to be reviewed. See La. Ct. App. Unif. R. 4-3. With that rule in mind, consider this time line:
- December 5, 2014: The trial court denied the relators’ motion for summary judgment.
- January 6, 2015: The trial court signed a written judgment on its December 5 ruling.
- January 16, 2015: The relators filed a notice of intent to seek a supervisory writ.
Was the notice of intent timely? No, found the First Circuit. Why? According to the court:
The January 6, 2015 written judgment states that judgment was rendered in open court on December 5, 2014, and the transcript of the hearing confirms this. However, there is no evidence that a written judgment was ordered by the trial court or that a written request for a judgment was filed within 10 days of the ruling in open court so as to make the notice of intent timely under Rules 4-2 and 4-3. See La. Code Civ. P. arts. 1914(A) and (B).
Does this ruling surprise you? It shouldn’t. Unlike a final judgment, an interlocutory judgment does not have to be reduced to writing and signed by the trial court. Under La. Code Civ. P. art. 1914(A), the general rule is that “the rendition of an interlocutory judgment in open court constitutes notice [of judgment] to all parties.” Article 1914(B) provides three exceptions to this general rule, under which the judgment must be reduced to writing:
- if the court so orders;
- if, within 10 days of rendition in open court, a party request that the judgment be reduced to writing; or
- if the court takes the interlocutory matter under advisement.
When one of these three exceptions applies, the clerk’s mailing of notice of judgment constitutes notice of judgment to start the 30-day time to file a notice of intent. In the vast majority of cases, the trial court orders counsel for the prevailing party to prepare a written judgment. But you must remember that, according to the structure of art. 1914, this nearly universal exception to the general rule is just that: an exception. The general rule (which unfortunately applied in the First Circuit case discussed above) is that rendition in open court equals notice of judgment, which starts the 30-day clock ticking.
Here are the lessons we can take from this case:
- When a trial court issues an adverse interlocutory ruling in open court, assume that the general rule of art. 1914(A) applies, and that the 30 days to file a notice of intent started running at that moment.
- Do not assume that notice of the subsequent written judgment starts the 30-day period unless you are absolutely sure that one of the art. 1914(B) exceptions applies.
- If you file your notice of intent more than 30 days after the hearing but less than 30 days after notice of the written judgment, include in your writ application evidence that the trial court ordered the judgment to be reduced to writing. This evidence should consist of the hearing transcript, a minute entry of the court’s ruling, or both.
- When you write the jurisdictional statement in your writ application, demonstrate the application’s timeliness. Cite the exact pages in the appendix showing when notice of judgment occurred under art. 1914(A) or (B). Also provide pinpoint citations of the notice of intent (showing that it was filed timely) and the order setting the return date (showing that the application itself was filed timely).
For more on this topic, read R. Ward, A Writ in Time, 51 La. Bar J. 338 (Feb./Mar. 2004).