Converting appeals into writ applications

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.

First 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.”).

Third Circuit

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).

Fourth Circuit

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).

Federal Work Ready, Inc. v. Wright, 2015-1301, p. 3 (La. App. 4 Cir. 5/18/16), — So. 3d —, 2016 WL 2910291 (same as Zeigler).

 Fifth Circuit

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.

Good luck tomorrow

Tomorrow is a big day for Louisiana appellate lawyers: it’s exam day for everyone seeking certification in appellate practice by the Louisiana Board of Legal Specialization. They said to bring a black pen; I’ll be bringing a half dozen. Good luck to everyone taking the exam. May we all pass!

Cross-motions for summary judgment and art. 1915(B)

Here’s a procedural oddity to start your weekend. Ordinarily, you cannot appeal a denial of summary judgment, not even if the trial court designates it as final under La. Code Civ. P. art. 1915(B). But let’s suppose that the parties file cross-motions for partial summary judgment on a particular issue. The trial court grants one motion, denies the other, and designates the judgment as final under art. 1915(B). On appeal from the granting of partial summary judgment, can the appellant also appeal the denial of its own motion for partial summary judgment? According to a blurb I came across today, the answer is “yes”:

In the case of an appeal of a partial judgment or a partial summary judgment designated as final under La. C.C.P. art. 1915(B), an appellant may also appeal an interlocutory judgment involving the same or related issues, such as a judgment denying a cross-motion for summary judgment. See Dean v. Griffin Crane & Steel, Inc., 05-1226, p. 4 n. 3 (La. App. 1st Cir. 5/5/06), 935 So. 2d 186, 189 n. 3, writ denied, 06-1334 (La. 9/22/06), 937 So. 2d 387.

State ex rel. Div. of Admin. v. Natl. Union Fire Ins. Co. of La., 2010-0689, p. 8 n. 6 (La. App. 1 Cir. 2/11/11), 56 So. 3d 1236, 1242 n. 6.

Appeal too late? Maybe not.

Last week, the Louisiana Third Circuit released an interesting opinion about a fine point of appellate procedure, State in the Interest of B.R.C., 16-273 (La. App. 3 Cir. 5/25/16).

Here’s the set-up. The appeal was brought under Children’s Code art. 332, under which the appeal delay is 15 days from the mailing of notice of judgment. The motion for appeal was filed on February 25. According to the record, notice of judgment was mailed on February 8, making the appeal untimely. But the appellant contended that, according to the postage-meter date on the envelope, notice of judgment was actually mailed no earlier than February 10, which would make the February 25 appeal timely.

The Third Circuit held that, while it could not accept a photocopy of the postage-meter date in deciding the merits of the appeal, it could consider the photocopy in deciding whether to remand the case to the trial court to determine the actual date that notice of judgment was mailed. Following that hearing, the record was to be supplemented with the hearing transcript, any pleadings or evidence offered in connection with the hearing, and the trial court’s judgment concerning the actual date that notice of judgment was mailed. As precedent for this unusual procedure, the court cite Ventre v. Pacific Indemnity Co., 391 So. 2d 95 (La. App. 3 Cir. 1980).

When the court reporter can—and cannot—request an extension of the return date

In an appeal, the court reporter can (and often does) request an extension of the return date if the reporter needs more time to complete the transcript. See La. Code Civ. P. art. 2127.2. But what if the transcript is needed for a supervisory-writ application, and the court reporter is unable to complete the transcript within the return date set by the trial court. Can the court reporter move for an extension of the return date for the writ application. According to a 2002 decision by the Louisiana Second Circuit, the answer is “no.” If the would-be relator relies on a court reporter’s motion to extend the return date for a writ application, the application may be dismissed as untimely. See Lafferty v. Allstate Ins. Co., 36,119 (La. App. 2 Cir. 2/28/02), 806 So. 2d 1000

La. Supreme Court Annual Report

The 2015 edition of the Louisiana Supreme Court’s Annual Report is available on the court’s web site. It is full of statistics useful to appellate lawyers, such as the writ-grant rates in each Louisiana appellate court and numbers of rehearing applications filed and granted. I recommend that you download a copy for ready reference the next time you’re asked the odds of a writ application’s being granted.