It’s been a while since I’ve updated the appellate blogroll on this page. So everyone, say hello to 600 Camp, an excellent blog covering civil litigation in the U.S. Fifth Circuit.
Here’s an interesting issue that I came across today. The Federal Arbitration Act includes a provision allowing an immediate appeal of an order refusing to enforce an arbitration clause. See 9 U.S.C. § 16(a)(1). But suppose that a case governed by the FAA is in a Louisiana state court. Under La. Code Civ. P. art. 2083, an interlocutory judgment cannot be appealed unless an appeal is “expressly provided by law.” Is a Louisiana trial court’s order denying arbitration appealable to a Louisiana court of appeal. In at least two circuits (the Fourth and the Fifth), the answer is “no.” Despite the FAA, a party to a Louisiana case seeking appellate review of an order denying arbitration must apply for a supervisory writ. See Saavedra v. Dealmaker Developments, 2008-1239 (La. App. 4 Cir. 3/18/09), 8 So. 3d 758, 761–62; and Allen v. Valero Energy Corp., 06-726, pp. 3–4 (La. App. 5 Cir. 1/9/07), 951 So. 2d 370, 371–72.
This book is next up on my reading list: Communicators-in-Chief by Julie Oseid, a law professor at the University of St. Thomas School of Law. In this book, Prof. Oseid examines the writing style and habits of five American presidents, focusing on one quality at which each excelled: Thomas Jefferson (metaphor), James Madison (rigor), Abraham Lincoln (brevity), Ulysses S. Grant (clarity), and Teddy Roosevelt (zeal). For each president, Prof. Oseid offers some biographical background, insights into his writing habits, and some examples of his best writing. There’s also a chapter on the presidents’ reading habits and favorite books.
If you want or need high-quality appellate CLE, DRI has what you need—in Las Vegas. The DRI Appellate Advocacy Seminar will be held on March 14–15 at the Planet Hollywood Resort. It’s being held in conjunction with the DRI Trial Tactics Seminar, with a joint session being held on the afternoon of March 15. The faculty includes six appellate judges. Also on the lineup is Bryan Garner, who will talk about using canons of textualism to construct legal arguments. As a bonus, you can stick around on the morning of March 16 for additional CLE with the trial-tactics folks without any additional cost.
Oh, in case you’re board-certified in Louisiana as an appellate specialist, or if you intend to apply for that specialization this year, DRI has applied to the Louisiana Board of Legal Specialization for specialized CLE accreditation. From reading the brochure, it looks like it’ll be good for 9 hours of specialized CLE credit. (For specialists in other states, DRI has applied for specialized CLE accreditation to California, Florida, Ohio, and Texas.)
Usually, an appellant taking a devolutive appeal does not have to post an appeal bond. See La. Code Civ. P. art. 2124(A). But there’s an exception to this rule: in a worker’s compensation case, an employer appealing an award of benefits must post a bond “guaranteeing that the employer will pay the amount of the award,” plus interest and costs. when the worker’s compensation judge has awarded benefits to the employee. La. R.S. 23:1310.5(C). This rule applies to both suspensive appeals and devolutive appeals. See Coolidge v. Butler, 16-937 (La. App. 3 Cir. 11/22/17).
Another procedural quirk under R.S. 23:1310.5(C): the time to post the bond does not begin to run until the worker’s compensation judge has notified the employer of the bond amount. In Coolidge, the employee moved to dismiss the employer’s appeal for failure to post the bond. The Third Circuit granted the motion. But since the WCJ had failed to set the amount of the bond, the Third Circuit dismissed the appeal as premature, and remanded the case for the WCJ to set the bond amount.
That’s a wrap for this year, folks. I just peaked at the blog archives and was surprised to realize that this blog passed its 5th birthday back in October. Thanks for reading, and best wishes for the New Year.
... when you cheat on the court’s typographic rules to circumvent the page limit. In this article for the Journal of the Missouri Bar, Professor Douglas Abrams catalogs cases where lawyers have gotten caught doing this and the penalties imposed on them. The lessons:
- Obey the court’s rules governing typography.
- If your brief or memorandum is too long, edit it to make it shorter.
- If, after editing, it’s still too long, file a motion for leave to exceed the court’s page limit. The motion may or may not be granted, but no one will think of you as a cheater for doing so.
Plaintiff sues Defendant. Defendant filed a reconventional demand against Plaintiff and a third-party demand against an insurer. The trial court renders summary judgment dismissing Plaintiff’s main demand but reserving Defendant’s reconventional demand and third-party demand. Is the judgment appealable? Yes, according to the Third Circuit in Hester v. Burns Builders, 17-824 (La. App. 3 Cir. 11/29/17). The court reasoned that the judgment is final under La. Code Civ. P. art. 1915(A)(1) and (3) because it dismissed Plaintiff’s principal action in its entirety. It didn’t matter that Plaintiff remained a party in his capacity as a defendant in reconvention.
If you still need a few hours of CLE this year, consider signing up for the Louisiana State Bar Association’s 2017 Wrap Up seminar, to be held this Friday, December 15, at the Sheraton on Canal Street in New Orleans. Included in the multi-topic program will be a one-hour presentation by Thomas M. Flanagan and yours truly on the “Top 10 Ways to Lose an Appeal.” You can register for one hour, two hours, a half day, or the entire 6.25 hour day. According to the LSBA web site, Tom’s and my presentation is approved for an hour of appellate-specialization CLE credit. For more information about the seminar, follow this link.
Let’s say a party disobeys an order compelling discovery. The discovering party moves for sanctions under La. Code Civ. P. art. 1471, and the trial court grants the motion, holding the recalcitrant party in contempt and striking its pleadings. Is the sanctions judgment final and appealable? According to the Fourth Circuit, it is. Celeste v. Starboard Mgt., LLC, 2016-1318 (La. App. 4 Cir. 11/6/17).
The facts and procedural history in Celeste are complicated; for this post’s purposes, here is the skinny version. After the defendants disobeyed an order compelling discovery, the trial court granted the plaintiffs’ motion for sanctions under art. 1471, finding the defendants in contempt and striking their affirmative defenses and reconventional demand. This judgment was signed on April 3, 2014, and notice of judgment was sent the next day. On May 1, 2014, defendants filed a “Notice of Intent to Take Supervisory Writs/Appeal,” but failed to pursue appellate review of the April 2014 judgment.
Fast forward to 2016, when the defendants filed a motion to reconsider the April 2014 judgment, and the plaintiffs filed a motion for summary judgment. The trial court denied the motion to reconsider as untimely and granted summary judgment in the plaintiffs’s favor. The defendants moved for new trial, and when that motion was denied, took an appeal. Among their assigned errors was the trial court’s April 2014 judgment striking their affirmative defenses and reconventional demand. The Fourth Circuit held that, with respect to the April 2014 judgment, the appeal was untimely. Citing two prior decisions (Stiltner v. Stiltner, 00-2079 (La. App. 4 Cir. 11/08/00), 772 So. 2d 909; and Pittman Constr. Co. v. Pittman, 96-1079 (La. App. 4 Cir. 3/12/97), 691 So. 2d 268), the Fourth Circuit held, “All contempt judgment are deemed final judgments, subject to immediate appeal.” Celeste, pp. 9–10.
The defendants argued that a judgment imposing sanctions under art. 1471 is not appealable under La. Code Civ. P. art. 1915(A)(6), which allows an immediate appeal from a judgment imposing sanctions under La. Code Civ. P. arts. 191, 863, or 864, or La. Code Evid. art. 510(G), because art. 1471 is not specifically listed in art. 1915(A)(6). But the Fourth Circuit rejected this argument, reasoning that “it makes no difference whether the trial court expressly issued sanctions pursuant to La. C.C.P. art. 1471 or art. 191 in order to trigger La. C.C.P. art. 1915(A)(6)’s application,” since both art. 191 and art. 1471 authorize the trial court to sanction a party for disobeying a court order. Celeste, p. 11.
In at least five prior posts, I’ve written about appeals being dismissed because the judgment appealed from lacked decretal language: language stating the party in whose favor the judgment is rendered, the party against whom the judgment is rendered, and the relief being granted or denied.1 Earlier this month, the Louisiana Fourth Circuit gave that rule a new twist, applying it to a judgment purporting to grant a preliminary injunction.
In Wells One Investments, LLC v. City of New Orleans, 2017-0415 (La. App. 4 Cir. 11/2/17), the trial court rendered a judgment stating that Wells One’s motion for preliminary injunction “is hereby granted,” but did not state what the city was ordered to do or not do. The city appealed under La. Code Civ. P. art. 3612, which gives parties the right to appeal a “judgment relating to a preliminary or final injunction ....” But the Fourth Circuit dismissed the appeal because the judgment failed to name the party being enjoined and, contrary to La. Code Civ. P. art. 3605, failed to “describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.”
The lesson from this case seems to be that any appealable judgment—not just a final judgment—must contain decretal language, naming the winning and losing parties and spelling out the precise relief being granted or denied.