Today, I came across the Louisiana Third Circuit’s recent decision in Babineaux v. University Medical Center, 15-292 (La. App. 3 Cir. 11/4/15), in which the court dismissed the appeal because the appellant appealed the wrong judgment.
The sequence of events was not uncommon. The district court granted a defendant’s motion for summary judgment. The plaintiff filed a timely motion for new trial, arguing that his counsel did not receive notice of the summary-judgment hearing and that he had new evidence to offer in opposition to the motion. The trial court denied the motion for new trial. The clerk of court mailed notice of the denial of new trial on September 29, 2014. Thirty-two days later (October 31), the appellant filed a motion for devolutive appeal. The problem: the appellant attempted to appeal the denial of new trial, not the earlier summary judgment. And in his brief, the only errors the appellant raised bore on the denial of new trial, not the earlier summary judgment. The Third Circuit dismissed the appeal for the following reasons:
- The judgment appealed from (denial of new trial) was an interlocutory judgment, not a final judgment; hence no appeal could be taken from that judgment. The court noted that, had the appellant taken an unrestricted appeal from the final judgment (the one granting summary judgment), the appellant would have been entitled to seek review of all adverse interlocutory judgments.
- The Third Circuit determined that it could not treat the appeal from the denial of new trial as an attempted appeal from the final judgment (as Louisiana courts sometimes do), because none of the errors raised in the appellant’s brief dealt with the underlying summary judgment. Rather, the only errors raised in the brief concerned the denial of new trial.
- The Third Circuit could not entertain the appeal under its supervisory jurisdiction, because the motion for devolutive appeal was filed more than 30 days after notice of the judgment denying new trial; hence it could not be treated as a timely notice of intent to seek a supervisory writ. See Unif. R. 4-3.