Procedure

How not to draft a judgment, × 3

Last month, the Louisiana Fourth Circuit dismissed three appeals (that I know of) because the judgment appealed from lacked decretal language and therefore was not a valid, final judgment:

Lacking from all three judgments was decretal language. As these cases say, decretal language must do three simple things: (1) Name the party in whose favor the ruling is ordered. (2) Name the party against whom the ruling is ordered. (3) State the relief that is granted or denied. In these three instances, the judgments should have said something like, “Judgment is hereby rendered in favor of [defendant’s name] and against [plaintiff’s name], dismissing all claims of [plaintiff’s name] against [defendant’s name] with prejudice.” If only some of the plaintiff’s claims are being dismissed, then the decree must identify the specific claims being dismissed.

In Louisiana, lawyers need to know how to draft a proper judgment. That is because in many Louisiana district courts, the lawyer who prevails at the hearing of the exception or motion is instructed to draft the judgment.


When and where to answer an appeal

Louisiana has a unique procedure for an appellee to take a cross-appeal against the appellant. It’s called an answer to the appeal, and it’s authorized by La. Code Civ. P. art. 2133(A). Under art. 2133(A), the answer must be filed “not later than fifteen days after the return day or the lodging of the record[,] whichever is later.”

Most lawyers reading art. 2133(A) would file the answer in the court of appeal after the record has been lodged and before the 15-day deadline. But occasionally, a litigant files the answer to the appeal in the trial court, before the record is lodged in the court of appeal. Is that okay? Yes it is, at least in the First Circuit. See Poole v. Fuselier, 2015-1317, pp. 9–11 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, 24–25. Poole contains a lengthy discussion of this issue, including citations to concurring cases in the Fourth and Fifth Circuits and two contrary cases from the Third Circuit.

Speaking of answers, remember that they are only effective to obtain relief against the appellant. They are not effective to obtain relief against any other parties in the case. To get relief against anyone other than an appellant, you need to move for and obtain your own order of appeal. On that topic, see this blog post.


New briefing requirement for the La. Second Circuit

If you practice in the Louisiana Second Circuit, here is something you need to know if you don’t want your brief rejected by the clerk of court. Beginning on May 31, every brief filed in the Second Circuit must include the following certification concerning attachments:

I hereby verify that all attachments to this brief have previously been duly filed and/or accepted into evidence in the lower court, to the best of my knowledge, information and belief.  I understand that failure to comply with this local rule may result in the refusal to consider said attachments. WILLFUL FAILURE TO COMPLY WITH THIS LOCAL RULE MAY SUBJECT ME TO PUNISHMENT FOR CONTEMPT OF COURT.

See La. 2d Cir. R. 15 (eff. May 31, 2017). Second Circuit Rule 2-5 has been amended to require the clerk of court to reject any brief that fails to comply with new Rule 15. This amendment, too, takes effect on May 31.


When a judgment isn’t final

Last month, the First Circuit issued a pair of unpublished decisions, each of which dismissed an appeal for lack of a final, appealable judgment. The problem with both judgments: the amount awarded could not be determined from the judgment itself. As explained by the court, the amount awarded must be stated in or determinable from the judgment itself, so that a third person can determine from the judgment itself the amount owed without reference to other documents. In the First Circuit’s view, the judgments in these two cases came up short.

In Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), the judgment awarded “$4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred.” The judgment was deemed deficient because

[t]he interest due on the delinquent taxes and penalties are not certain and determinable from the judgment. The judgment does not state the precise rate of interst on the taxes or the period of time for which the interest on the taxes is payable. The judgment does not give any information regarding the amount of the penalties. therefore, the portion of the judgment concerning interest and penalties on the delinquent taxes is not definite and certain, and the judgment is not a final judgment.

In Rosewood Enterprises, Inc. v. Rosewood Development, LLC, 2016-0352 (La. App. 1 Cir. 3/6/17), the judgment awarded $2,149,080, plus accrued interest of 7.5% per annum until paid, plus late charges in the amount of 5% of the overdue payments, plus reasonable attorney fees and costs and expenses of collection ....” The award of 5% late charges was insufficient because it failed to “specify either a total amount of late charges owed, or set forth information allowing for the calculation of late charges without necessitating reference to the note or other extrinsic sources.” Also the judgment failed to specify the amount of attorney’s fees and collection costs awarded.

The lessons we can learn from these decisions: (1) If you can calculate the amount awarded, do so and put the amount in the judgment. (2) If some part of the award can’t be calculated—or if there is any other doubt about finality—ask the trial court to designate the judgment as final under La. Code Civ. P. art. 1915(B)


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.