When litigants attempt to appeal a non-appealable judgment, the question rises whether the court of appeal can review the trial court’s judgment under its supervisory jurisdiction. In at least four of the five circuits, the answer is “maybe,” if the motion for appeal was filed within the 30-day period to apply for a supervisory writ under Unif. R. 4-3. (I couldn’t find any cases from the Second Circuit answering this question.) Here is a breakdown of the cases, circuit by circuit.
Roba, Inc. v. Courtney, 2009-0509, p. 6 n. 12 (La. App. 1 Cir. 8/10/10), 47 So. 3d 509, 514 n. 12 (appeal converted to application for supervisory writ where motion for devolutive appeal was filed within the 30-day period under Unif. R. 4-3).
Joseph v. Ratcliff, 2010-1342, p. 7 (La. App. 1 Cir. 3/25/11), 63 So. 3d 220, 225 (because party’s motion for appeal was filed more than 30 days after notice of judgment, “we will not convert the appeal of that judgment to an application for supervisory writs.").
Tower Credit, Inc. v. Bradley, 2015-1164, p. 4 9La. App. 1 Cir. 4/15/16), — So. 3d —, 2016 WL 1534851 (because motion for appeal was filed 40 days after notice of judgment, it “was filed too late to invoke the supervisory jurisdiction of this court.”).
Biosonix, LLC v. Luke, 2014-1207, pp. 4-5 (La. App. 3 Cir. 5/27/15), 165 So. 3d 399, 401 ("Had the motion for appeal been filed within this thirty-day window, we would have deemed it a timely notice of intent to seek supervisory writs. However, the Motion for Appeal was filed after the thirty-day period lapsed. Thus, even if we were to allow Plaintiffs time to perfect a proper writ application, we would have to dismiss that writ application because of untimeliness.").
Rain CII Carbon, LLC v. Turner Indus. Group, LLC, 14-121, p. 2 (La. App. 3 Cir. 3/19/14), 161 So. 3d 688, 689 ("This court, in the interest of justice, permits parties—who use the improper procedural vehicle of appeal instead of supervisory writ—to file a writ application when a motion for appeal is filed within thirty days after the trial court’t ruling. [Citation omitted.] In doing so, we construe the motion for appeal as a notice of intent to seek a supervisory writ. [¶] Here, the motion for appeal was not filed within thirty days of the trial court’s verbal ruling denying Victory’s exceptions. Therefore, while Victory’s motion for appeal can be construed to be a notice of intent to seek supervisory writs, it cannot be construed as a timely one.”).
Babineaux v. University Med. Center, 15-292, p. 7 (La. App. 3 Cir. 11/4/15), 177 So. 3d 1120, 1125 (appeal dismissed and not converted to supervisory-writ application because the motion for appeal "was filed in the trial court, at best, ... thirty-two days after the judgment” sought to be reviewed).
Duckering v. Rapides Healthcare Sys., LLC, 15-1049, pp. 4-5 (La. App. 3 Cir. 3/2/16), 187 So. 3d 548, 551-52 (court precluded from converting appeal into a supervisory-writ application because petition for appeal was not filed within 30 days of notice of judgment).
Board of Supervisors of LSU v. Mid-City Holdings, LLC, 2014-0506, pp. 3-4 (La. App. 4 Cir. 10/15/14), 151 So. 3d 908, 911. (This is the leading case on this issue in the Fourth Circuit. The court notes that it has “ordinarily but not necessarily” converted appeals of non-appealable judgments into applications for supervisory writs when the motion for appeal was filed within 30 days after notice of judgment. The court also cited Herlitz Construction Co. v. Hotel Investors of New Iberia, 396 So. 2d 878 (La. 1981) as supporting the exercise of its supervisory jurisdiction.)
Ramirez v. Evonir, LLC, 2014-1095, pp. 4-6 (La. App. 4 Cir. 4/9/15), 165 So. 3d 260, 263 (conversion to supervisory-writ application denied because the motion for appeal was filed well beyond 30 days after notice of judgment and the case did not meet the Herlitz criteria).
McGinn v . Crescent City Connection Bridge Auth., 2015-0165, pp. 4–6 (La. App. 4 Cir. 7/22/15), 174 So. 3d 145, 148 (The court cited two conditions that must be met to convert an appeal into a supervisory-writ application: (1) motion for appeal filed within 30 days after notice of judgment, and (2) immediate appeal “necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court’s decision would terminate the litigation.” Because the motion for appeal was filed more than 30 days after notice of judgment “we decline to exercise our discretion to consider the motion for appeal as an application for supervisory writ.”)
Zeigler v. Housing Authority of New Orleans, 2015-0626, pp. 3-4 (La. App. 4 Cir. 3/23/16), — So. 3d —, 2016 WL 1165437 (because motion for appeal was filed within 30 days after notice of judgment, court exercised its discretion to convert the appeal into an application for supervisory writ).
Sellers v. El Paso Indus. Energy, LP, 08-403, p. 17 (La. App. 5 Cir. 2/10/09), 8 So. 3d 723, 732 (court denied conversion of an answer to an appeal into a supervisory-writ application because the answer was filed beyond the 30-day period to apply for a supervisory writ).
Patterson v. Fed Ex Ground Package Sys., Inc., 08-1297, p. 4 (La. App. 5 Cir. 3/24/09), 10 So. 3d 794, 796 (“[T]he motion for appeal was filed within the time requirements for a writ application. By en banc meeting of December 9, 2004, this Court decided that converting appeals to writs will be left to the discretion of the panel. Under the circumstances of this case and in the interest of justice, we deny FedEx’s Motion to Dismiss Appeal, convert the appeal to a writ, and review the matter under our supervisory jurisdiction.”)
Note that the granting of a supervisory writ is always discretionary. Thus, a party is never entitled to have its appeal of a non-appealable judgment converted to a supervisory writ, even if the motion for appeal was filed within 30 days after notice of judgment.
A final note: there are two cases in which the prior filing and denial of an application for a supervisory writ influenced the court’s decision to convert an appeal into a writ application. Ironically, they reached opposite results. The cases are MAPP Construction, LLC v. Amerisure Mutual Insurance Co., 2013-1074 (La. App. 1 Cir. 3/24/14), 143 So. 3d 520 (converting appeal into writ application), and Kirby v. Poydras Center, LLC, 2015-27 (La. App. 4 Cir. 9/23/15), 176 So. 3d 601 (denying conversion into writ application). We’ll look at those cases more closely in a later post.