Procedure

To writ or not to writ?

In our last post, we looked at instances in which the court of appeal considered converting an appeal of an unappealable judgment into an application for a supervisory writ. In this post, we’ll focus on two cases presenting this issue, plus a twist: in both cases, the would-be appellant had already applied for a supervisory writ, but the court of appeal denied the writ.

The first case is MAPP Construction, LLC v. Amerisure Mutual Insurance Co., 2013-1074 (La. App. 1 Cir. 3/24/14), 143 So. 3d 520. Here is the timeline:

  • Sept. 25, 2012: The trial court rendered the judgment complained of. The aggrieved party, C & F, filed a timely application for a supervisory writ.
  • Feb. 13, 2013: The court of appeal denied the writ application, commenting that the judgment would become appealable once a pending motion for new trial was ruled on.
  • Mar. 20, 2013: The trial court denied the motion for new trial, and C & F took a suspensive appeal.

The appeal panel, disagreeing with the writ panel, concluded that the September 25 judgment was not appealable. Id., p. 10, 143 So. 3d at 528. Nevertheless, even though the appeal was taken well beyond the 30-day period to apply for a supervisory writ, the appeal panel converted the appeal into a supervisory writ. Why? “Because C & F initially filed a timely supervisory writ application and we find clear error in the trial court's second judgment that will create a grave injustice iif not corrected, we will convert the appeal to an application for a supervisory writ, grant the writ, and review the second judgment rendered on September 25, 2012.” Id., pp. 10–11, 143 So. 3d at 528. Thus, the prior writ application, although denied, helped persuade the court to convert the later appeal into a writ application.

In Kirby v. Poydras Center, LLC, 2015-0027 (La. App. 4 Cir. 9/23/15), 176 So. 3d 601, the court reached the opposite conclusion, declining to convert an appeal into an application for supervisory writ because of its prior denial of a writ application from the same judgment. After rendition of the judgment complained of, the aggrieved party simultaneously appealed and applied for a supervisory writ. The writ panel denied the application. Later, the appeal panel decided not to convert the appeal into an application for supervisory writ because of the prior writ denial. The court reasoned that converting the appeal into a writ application would be “repetitious,” suggesting a rule of one writ application per customer for any particular judgment. Id., p. 12, 176 So. 3d at 608.

So what is the lesson here? A prior writ application, though denied, may help persuade the court to convert a later appeal into a writ application. Or it may have the opposite effect. When review is discretionary (as it always is with writ applications), nothing is certain.


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


Request for reasons does not suspend time to appeal

A recent decision by the Louisiana Fifth Circuit provides a hard lesson in appellate procedure. The lesson: When the clerk of court mails notice of final judgment, the appeal clock is ticking. Neither a request nor an appellate court’s order to provide written reasons for judgment stops the clock.

The case is Alexander v. Maki, 15-517 (La. App. 5 Cir. 1/4/16). Here is the sequence of events:

  • June 26, 2014: Second Parish Court issued a judgment, granting defendants’ motion for summary judgment and dismissing the plaintiff’s suit with prejudice.
  • July 7, 2014: The clerk of court mailed notice of the June 26 judgment.
  • July 16, 2014: Plaintiff filed a request for written reasons for judgment.
  • July 28, 2014: The trial court issued a judgment instructing plaintiff’s counsel to obtain a copy of the trial court’s transcribed oral reasons for judgment. Plaintiff applied to the court of appeal for a supervisory writ to review denial of her request for written reasons.
  • October 9, 2014: The court of appeal granted a supervisory writ, ordering the trila court to provide written reasons for judgment.
  • October 14, 2014: The trial court issued written reasons for judgment.
  • March 11, 2015: According to the plaintiff, the clerk mailed notice of written reasons for judgment.
  • April 8, 2015: Plaintiff filed a motion to appeal the granting of summary judgment.

The court of appeal dismissed the plaintiff’s appeal as untimely. “A judgment ad reasons for judgment are two separate and distinct legal documents,¨ the court reasoned, “and appeals are taken from the judgment, not the reasons for judgment. [Citations omitted.] The appealable judgment in this case is the summary judgment issued by the trial judge on June 26, 2014.” Because the plaintiff did not take the appeal until about nine months after notice of the final judgment, her appeal was untimely.

 


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.)


Hard lesson in appellate jurisdiction

Today, I came across the Louisiana Third Circuit’s recent decision in Babineaux v. University Medical Center, 15-292 (La. App. 3 Cir. 11/4/15), in which the court dismissed the appeal because the appellant appealed the wrong judgment.

The sequence of events was not uncommon. The district court granted a defendant’s motion for summary judgment. The plaintiff filed a timely motion for new trial, arguing that his counsel did not receive notice of the summary-judgment hearing and that he had new evidence to offer in opposition to the motion. The trial court denied the motion for new trial. The clerk of court mailed notice of the denial of new trial on September 29, 2014. Thirty-two days later (October 31), the appellant filed a motion for devolutive appeal. The problem: the appellant attempted to appeal the denial of new trial, not the earlier summary judgment. And in his brief, the only errors the appellant raised bore on the denial of new trial, not the earlier summary judgment. The Third Circuit dismissed the appeal for the following reasons:

  1. The judgment appealed from (denial of new trial) was an interlocutory judgment, not a final judgment; hence no appeal could be taken from that judgment. The court noted that, had the appellant taken an unrestricted appeal from the final judgment (the one granting summary judgment), the appellant would have been entitled to seek review of all adverse interlocutory judgments.
  2. The Third Circuit determined that it could not treat the appeal from the denial of new trial as an attempted appeal from the final judgment (as Louisiana courts sometimes do), because none of the errors raised in the appellant’s brief dealt with the underlying summary judgment. Rather, the only errors raised in the brief concerned the denial of new trial.
  3. The Third Circuit could not entertain the appeal under its supervisory jurisdiction, because the motion for devolutive appeal was filed more than 30 days after notice of the judgment denying new trial; hence it could not be treated as a timely notice of intent to seek a supervisory writ. See Unif. R. 4-3.

An answer to the appeal is as good as a cross-appeal—sometimes.

Let’s say your client didn’t get a complete win in the trial court, but does not want to appeal unless the other side appeals. The other side appeals. Should you cross-appeal? Or should you just answer the other side’s appeal?

Non-Louisiana practitioners may be asking, “What is this answer to an appeal?” It’s a procedure authorized by La. Code Civ. P. art. 2133(A), under which an appellee may seek to have the trial court’s judgment modified, revised, or reversed in part. It’s usually much less expensive than a cross-appeal; while a cross-appellant may have to pay part of the cost of preparing and lodging the record, an appellee who answers the appeal need only pay a filing fee of $74 to $124 (depending on the circuit). And you always have more time to answer the appeal than you have to cross-appeal. Compare La. Code Civ. P. art. 2087(B) (time to cross-appeal) with art. 2133(A) (time to answer an appeal).

But there is a catch. Under art. 2133(A), an answer to an appeal is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against him in favor of the appellant ....” The emphasized words mean that the answer is good only for seeking relief against the appellant. It is not good for seeking relief against any other party who did not appeal.

A few years ago, Louisiana lawyer S. Mark Tatum wrote an excellent article on this topic for the Louisiana Bar Journal, entitled Questions About Answers: Problems with Answers to Appeals and Protective Cross-Appeals Under Louisiana Procedure, 57 La. B. J. 306 (Feb./Mar. 2010). Mark’s article is a must-read for any lawyer practicing in Louisiana’s appellate courts.

 


The appellee’s secret weapon

Let’s say you represent an appellee, and you know of a better argument to support the trial court’s judgment than the one the trial court relied on. Can you raise that argument in support of the trial court’s judgment? In both Louisiana and federal courts, the answer is “yes”—as long as support for the argument appears in the record.1

In Louisiana’s appellate courts, La. Code Civ. P. art. 2133(B) permits an appellee to "assert, in support of the judgment, any argument supported by the record ....” In Roger v. Estate of Moulton, 513 So. 2d 1126, 1136 (La. 1987), Justice Dennis aptly described art. 2133(B)’s operation:

A party who is satisfied with a judgment, and who does not file a notice of appeal or a petition for review, is, nevertheless, a party to the appeal or review whose arguments must be heard, and in support of the judgment in his favor he may present any argument supported by the record, whether it was ignored, or flatly rejected, by the court below. This principle generally applies to all manner of review proceedings, although the discretionary nature of the grant of certiorari by a supreme court may make its application less certain in certiorari cases.

The federal rule is identical. The appellee in a federal appeal “may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it.” U.S. v. American Ry. Express Co., 265 U.S. 425, 435 (1924). See also Blum v. Bacon, 457 U.S. 132, 137 n. 5 (1982) (“It is well accepted ... that without filing a cross-appeal or cross-petition, an appellee may rely upon any matter appearing in the record in support of the judgment below.”).

Please note, though, that this rule applies only if you do not seek any modification of the trial court’s judgment. If you seek to have the judgment modified in the appellee’s favor, you must take a cross-appeal or (in Louisiana state court) answer the appeal. In Louisiana, see La. Code Civ. P. art. 2133(A). The choice of answering the appeal versus taking a cross-appeal is itself an interesting topic, which I’ll try to cover in a future post.

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1 I’ve covered this topic before, but that post is more than two years old and does not address federal appeals.