Recent grants of certiorari by the LASC
Two cases of interest to appellate lawyers.

When not to file a motion for new trial.

Let’s say that the defendant in a civil action files a motion for summary judgment, and the trial court denies the motion. Should the defendant file a motion for new trial seeking reconsideration of the summary-judgment motion? The answer is probably “no.” One of two things can happen, and both of them are bad.

One bad thing that can happen is that the motion for new trial is denied. That’s bad because, by the time the motion for new trial is decided, it will probably be too late to apply to the court of appeal for a supervisory writ to review the denial of summary judgment. A denial of summary judgment is an interlocutory judgment, not a final judgment. Louisiana’s appellate courts agree that, according to the Code of Civil Procedure, a motion for new trial is a means for the trial court to reconsider a final judgment—it is not a proper vehicle to seek reconsideration of an interlocutory judgment. See, e.g., Winston v. Martin, 34,424, p. 3 (La. App. 2 Cir. 9/21/00), 801 So. 2d 389, 391–92. One upshot of this rule is that a purported motion for new trial seeking reconsideration of an interlocutory judgment does not suspend or interrupt the 30-day time to apply to the court of appeal for a supervisory writ. Thus, by the time the trial court rules on the motion for new trial, it will probably be too late to seek the court of appeal’s supervisory review of the denial of summary judgment. See Clement v. American Motorists Ins. Co., 98-504, pp. 3–4 (La. App. 3 Cir. 2/3/99), 735 So. 2d 670, 672; Carter v. Rhea, 2001-0234 (La. App. 4 Cir. 4/25/01), 785 So. 2d 1022.

But what if the trial court grants a new trial, reconsiders its earlier ruling, and grants summary judgment? That’s bad too, at least if the appeal goes to the Louisiana Fourth Circuit. In a line of cases presenting that scenario, the Fourth Circuit has reversed or vacated the trial court’s judgment as procedurally flawed because—again—the Code of Civil Procedure does not authorize a motion for new trial to reconsider an interlocutory judgment. See Magallanes v. Norfolk So. Ry., 2009-0605, pp. 3-5 (La. App. 4 Cir. 10/14/09), 23 So. 3d 985, 988-89Marshall v. Air Liquide-Big Three, Inc., 2009-1304 (La. App. 4 Cir. 3/3/10), 2010 WL 8972037; Daniels v. SMG Crystal, LLC, 2013-0761, pp. 9-12 (La. App. 4 Cir. 12/4/13), 128 So. 3d 1272, 1276-78. A couple of weeks ago, the Fourth Circuit extended this rule to vacate a judgment granting new trial and sustaining a peremptory exception. Llopis v. State, Dept. of Health & Hosps., 2016-0041 (La. App. 4 Cir. 12/14/16), — So. 3d —.

“But wait a minute,” you may be thinking. “If a denial of summary judgment is interlocutory, can’t that interlocutory judgment be reconsidered any time before trial on the merits?” Of course it can. According to the Fourth Circuit, the proper way  to seek the trial court’s reconsideration is to re-file the summary-judgment motion, with all attachments. Magallanes, p. 4, 23 So. 3d at 988; Daniels, p. 10, 128 So. 3d at 1277; Condon v. Logan, 2015-0797, p. 9 (La. App. 4 Cir. 3/30/16), 190 So. 3d 778, 784Carter, 785 So. 2d at 1026 (Tobias, J., concurring).

For a critique of this Fourth Circuit rule, read Judge Murray’s reluctant concurrence in Marshall. Meanwhile, if your peremptory exception or summary-judgment motion is erroneously denied, your best move is probably to go straight to the court of appeal with an application for a supervisory writ. Your chance of success there will probably be better than the chance of changing the trial judge’s mind.

 

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