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.


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

Amendments to La. summary-judgment procedure

Effective January 1, 2016, Act No. 422 of the latest Louisiana legislative session is going to make substantial changes to Louisiana’s summary-judgment procedure. If you practice civil litigation in Louisiana, you must familiarize yourself with these amendments. Appellate practitioners will be especially interested in new art. 966(H), which requires an appellate court to schedule a supervisory-writ application for briefing and oral argument before reversing the denial of summary judgment.

To read the act and accompanying revision comments, follow this link.

Final (appealable) judgment in multi-district litigation

Over at the Antitrust Attorney Blog, Jarod Bona analyzes the U.S. Supreme Court’s recent decision in Gelboim v. Bank of America. The skinny version: when a case is caught up in multi-district litigation, it retains its identity as an individual case. Meaning that a final judgment as to that case is no less final or appealable because of the MDL.

This holding is not surprising. To me, what’s surprising is that the U.S. Second Circuit saw it differently.

§ 1447(d) does not prevent vacatur of remand order under Rule 60(b)(3)

Federal appellate practitioners should take note of the U.S. Fourth Circuit’s recent decision in Barlow v. Colgate Palmolive Co., No. 13-1839 (4th Cir. Nov. 25, 2014). The decision holds that an order to remand a removed case to state court—ordinarily unreviewable under 28 U.S.C. § 1447(d)—can be vacated under Fed. R. Civ. P. 60(b)(3) for “fraud ..., misrepresentation, or misconduct” in obtaining the remand order. The court reasoned that a Rule 60(b)(3) vacatur is not “review,” forbidden by § 1447(d), because it is not focused on the merits of the remand; rather it is focused on the “contaminated process” by which the order was obtained.

So what was the conduct deemed worthy of scrutiny under Rule 60(b)(3)? A flip-flop by plaintiffs' counsel after remand. In arguing for remand, plaintiffs' counsel insisted that they had a glimmer of hope in recovery from an in-state defendant. But after remand to state court, they argued that the only defendant they were pursuing was the out-of-state defendant.

A dissenting judge opined that “this case is a first-round draft choice for summary reversal should plaintiffs choose ... to file a petition for certiorari.”

Remand to arbitrators for clarification not appealable

Here is an interesting decision on one of the finer points of federal appellate jurisdiction. In Murchison Capital Partners, L.P. v. Nuance Communications, Inc., No. 13-10852 (5th Cir. July 25, 2014), the court holds that it does not have appellate jurisdiction to review a district court’s order remanding a case to an arbitration panel for clarification. Judge Jones filed a seven-page dissent.

“Writ’s too late, baby.”*

Under Uniform Rule 4-3, a return date for a supervisory-writ application should not be more than 30 days after notice of judgment as provided by La. Code Civ. P. art. 1914. But what event constitutes notice of judgment? Consider this sequence of events in a recent case, Rain CII Carbon, LLC v. Turner Industries Group, LLC, 14-121 (La. App. 3 Cir. 3/19/14):

  • Sept. 16, 2013: Trial court holds a hearing on a defendants dilatory and declinatory exceptions and rules from the bench, overruling the exceptions.
  • Sept. 30, 2013: Trial court signs a written judgment reducing its Sept. 16 oral ruling to writing.
  • Oct. 15, 2013: Trial court sends notice of the written judgment to the parties.
  • Oct. 29, 2013: Defendant files a motion for suspensive appeal.

Because the judgment overruling the exceptions was not a final, appealable judgment, the Third Circuit issued a rule to show cause why the appeal should not be dismissed. In response, the appellant acknowledged lack of an appealable judgment, but asked that the appeal be converted to a supervisory writ. The Third Circuit was willing to do so, but only if the motion for appeal was filed within the 30-day time to apply for a supervisory writ.

Alas, the Third Circuit found that the 30 days had expired before the motion for appeal was filed, even though it was filed within 30 days of the written judgment and 14 days after mailing of the notice of judgment. Why? Because the court determined that the September 16 ruling in open court constituted notice of judgment starting the 30-day delay to file a notice of intent, even though the judgment was later reduced to writing.

Since I have not seen the record in this case, I can’t comment on the correctness of the Third Circuit’s judgment. Having said that, this opinion reminds us of an important difference between notice of a final judgment and notice of an interlocutory judgment. A final judgment must be signed by the judge, and notice of judgment does not occur until the clerk mails notice of the written judgment. See La. Code Civ. P. arts. 1911 and 1913(A). In contrast, the general rule under La. Code Civ. P. art. 1914(A) is that, when an interlocutory judgment is rendered orally from the bench in open court, the oral ruling constitutes notice of judgment triggering the 30-day delay to seek a supervisory writ.

Article 1914(B) contains exceptions to this general rule, under which the mailing of notice of the written judgment constitutes notice of judgment. The exceptions:

  • if the court orders the judgment to be reduced to writing;
  • if a party, within 10 days of rendition in open court, requests that the judgment be reduced to writing; or
  • if the court takes the interlocutory matter under advisement.

The first exception is so common that lawyers sometimes forget that it is, in fact, an exception to the general rule. Remember that the exceptions in art. 1914(B) are just that: exceptions. If you don’t have something in writing showing application of any of the exceptions, you must assume that the general rule of art. 1914(A) applies, and that the ruling in open court triggers the 30-day time to apply for a supervisory writ.

Ten years ago, I wrote an article for the Louisiana Bar Journal making this same point: A Writ in Time, 51 La. B.J. 338 (Feb./Mar. 2004). Article 1914 has since been amended, but the basic message is still true. If you don’t have a transcript or a minute entry reflecting the court’s order that the judgment be reduced to writing, assume that your 30 days to seek a supervisory writ started when the judge ruled in open court.


* Profuse apologies to Carole King.

On the necessity to cross-appeal

A recent decision by the U.S. Fifth Circuit holds that an appellee who failed to cross-appeal an adverse finding by the jury cannot, on remand, attempt to relitigate the same issue. ART Midwest Inc. v. Atlantic Ltd. Partnership XII, No. 11-11140 (5th Cir. Feb. 3, 2014).

In a nutshell, this is what happened. Buyer contracted with Seller to purchase eight apartment complexes. Later, alleging title problems with two of the complexes, Buyer notified Seller that it was terminating the entire deal. Buyer then sued Seller, alleging Seller's fraud and seeking a declaratory judgment that Buyer had the right to terminate the deal. The jury rejected the fraud claim but found that Buyer had the right to terminate the deal. Seller appealed, but Buyer failed to cross-appeal the jury’s finding of no fraud. The Fifth Circuit reversed the verdict against Seller, finding that the Seller did not default and remanding the case to the district court to determine liability and damages.

On remand, the district court granted summary judgment on Buyer’s fraud claim, holding that issues previously decided by the district court and forgone on the first appeal could not be relitigated on remand. A jury resolved other liability issues against Buyer and awarded millions of dollars in damages.

On Buyer’s appeal, the Fifth Circuit affirmed the summary judgment dismissing Buyer’s fraud claim. The court held that Buyer’s decision not to cross-appeal the jury’s adverse fraud findings in the first district-court proceeding prevented Buyer from raising the same rejected fraud claims in the second district-court proceeding.

(Hat tip to the Bar Association of the Fifth Federal Circuit.)