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February 2016

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.

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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.)