Procedure

When do you need a bond to take a devolutive appeal?

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 is a “partial” summary judgment appealable?

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.


A sanctions judgment under La. Code Civ. P. art. 1471 is appealable.

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.

 


Decretal language needed to appeal an injunction

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.

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1. See these posts from Jan. 21, 2013; Apr. 4, 2013; Feb. 25, 2016; Apr. 7, 2017; and Sept. 3, 2017.


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.