Answering a constitutional appeal to the LASC

Under La. Const. art. V § 5(D), the Louisiana Supreme Court has appellate jurisdiction when a law or ordinance has been declared unconstitutional. Let’s say that a plaintiff sues to have three statutes declared unconstitutional. The trial court renders a final judgment declaring two of the statutes unconstitutional but the third constitutional. The defendant appeals. Can the plaintiff answer the appeal and ask the Supreme Court to declare the third statute unconstitutional? The answer is “yes.” The case saying so is Louisiana High School Athletic Association v. State, 2012-1471 (La. 1/29/13), 107 So. 3d 583.


The Chief

PFC_02Yesterday, former Chief Justice Pascal F. Calogero died. He was the chief justice when I started practicing law in 1990, and served in that post for 18 years. His entire career on the Louisiana Supreme Court spanned 36 years, from 1973 through 2008. My own impression of him from his written opinions is that he always saw the people behind the cases and the legal arguments. He was a pragmatic judge, believing that law existed to serve people, that it was more important for the court to do the right thing than technically correct thing.

To read the Louisiana Supreme Court’s announcement, follow this link.


Appeal from new trial = appeal from judgment on the merits — sometimes.

A few days ago, the Louisiana Supreme Court saved a litigant who purportedly appealed only from an order denying new trial rather than the judgment that was the subject of a motion for new trial. “While a judgment denying a motion for new trial is an interlocutory order and is normally not appealable,” the Court explained, “when a motion for appeal refers by date to the judgmetn denying a motion for new trial, but the circumstances indicate that the appellant intended to appeal from the final judgment on the merits, the appeal should be maintained as taken from the judgment on the merits.” Williams v. Hosp. Servs. Dist. No. 1 of Tangipahoa Parish, 2018-1386 (La. 12/17/18), — So. 3d —.

That seems simple enough. But as the court of appeal’s decision shows, the case had an extra layer of complication. Two plaintiffs—DePhillips and Williams—each brought similar putative class actions. After the two cases were consolidated, a defendant raised a peremptory exception of prescription. At a hearing in open court, the trial court sustained the exception in both cases. Afterwards, things got complicated.

On the same day, the trial court signed two judgments. While each judgment bore the consolidated caption, the substance of each judgment indicate that each applied to only one case:

  • The “DePhillips judgment,” signed November 16, 2016, sustained the exception as to plaintiff DePhillips, and said that the suit was confined to claims occurring within one year from filing of suit. This judgment contained no decretal language dismissing any claims. Notice of this judgment was mailed on November 17, 2016.
  • The “Williams judgment,” signed the same day as the DePhillips judgment, sustained the exception of prescription as to Wiliams’s claims and dismissed Williams’s claims with prejudice. Notice of this judgment was mailed on November 22, 2016.

Both plaintiffs then filed a motion for new trial, which on its face, sought review of the judgment signed on November 16, 2016, and stated that the clerk mailed notice of the judgment on November 17, 2016. The trial court denied the motion for new trial on January 9, 2017, and signed a written judgment to that effect on January 19, 2017. The plaintiffs then attempted to appeal the judgment rendered on January 9 and signed on January 19.

The court of appeal dismissed the appeal. In its decision, the court recited the rule that, when a motion for appeal refers by date to a judgment denying a new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. But in applying this rule, the court determined that the plaintiffs still appealed the wrong judgment. The reason was that the motion for new trial referred by date to the non-final DePhillips judgment, not the final Williams judgment. DePhillips v. Hosp. Serv. Dist. No. 1 of Tangipahoa Parish, 2017-1423 c/w 2017-1424 (La. App. 1 Cir. 7/18/18), 255 So. 3d 1.

The Louisiana Supreme Court reversed the court of appeal's judgment and reinstated the appeal. Reviewing the same circumstances as the court of appeal, the Supreme Court concluded that the plaintiff appealed “from the only final judgment rendered in this consolidated matter, which was the dismissal of the plaintiff Earnest Williams’ claims.”

The lesson for the rest of us: be careful in writing your motion and order of appeal: make sure that it correctly identifies the judgment you want to appeal, and make sure that the judgment being appealed is a final, appealable judgment.


Vacatur of default judgment not appealable

In a decision rendered last month, the Louisiana Fifth Circuit held that a judgment vacating a default judgment is not a final judgment and therefore cannot be appealed. Russell v. Jones, 18-160 (La. App. 5 Cir. 11/14/18), — So. 3d —, 2018 La. App. LEXIS 2294. While the judgment might have been reviewable under the court of appeal’s supervisory jurisdiction, the plaintiff failed to appeal within the 30-day time to apply for a supervisory writ. 


La. Advanced Appellate Seminar on Nov. 30

If you are (a) reading this blog, and (b) in need of CLE hours, then check out the LSBA’s Advanced Appellate Seminar, scheduled for November 30 in New Orleans. The seminar co-chairs, Judge Sylvia Cooks and Tom Flanagan, have put together a solid program offering 6.25 hours of CLE credit. The faculty includes 12 appellate judges. For detailed information about the seminar, follow this link. Follow these links to download the seminar flyer and the registration form.


For “Bridging the Gap” participants

This morning, I gave my semi-annual presentation on appellate practice for the Louisiana State Bar Association’s Bridging the Gap seminar for new lawyers. For them and anyone else who may be interested, here are the bonus materials that I promised:

Below are links to downloadable PDFs of sample appellate briefs and pleadings. For reasons stated during the seminar, please do not follow these slavishly; the rules may have changed since these were written.