Louisiana Civil Appeals

The best place to look up a Louisiana statute

Do you want an easy way to look up code articles and other Louisiana statutes? If you do, then bookmark Naked Ownership’s codes and statutes page. You will not find comments or annotations. You will, however, find the current version of any statute you look up, with references to legislative acts creating and amending each statute. Very handy when you just want to browse the statutory language. Also very handy for copying and pasting statutory text into your notes, memo, or brief. The proprietor is Al Robert Jr., a good lawyer and a good man.

How long will this appeal take?

I’m often asked by a client or a colleague how long the overall appeal process will take, or how long a particular piece of it will take (e.g. how long after oral argument will the court render a decision). Although I can never answer such questions precisely, I have a reasonable basis for making an estimate: the time standards promulgated by the Louisiana Supreme Court. You can find them in the Rules of the Louisiana Supreme Court under Part G, General Administrative Rules, § 6. Or you can just click on this handy link.

Please note that the time standards are not hard-and-fast deadlines; they are goals that the courts of appeal and supreme court are supposed to strive for. And by their own terms, the standards apply only under “normal and usual circumstances.” Your mileage may vary. Still, when your client asks how long the process will take, it’s nice to have some objective guidelines to refer to in answering the client’s question.

Note too that the time standards don’t kick in until the record is lodged in the court of appeal. To figure how long it will take for the record to be lodged, refer to La. Code Civ. P. art. 2125.

A writ in time

Often I am asked about the deadline to apply for a supervisory writ after a trial court’s adverse interlocutory ruling. I wish the answer to this question were simple. The short answer is 30 days—unless the trial court gives you either less time or more time. In any event, there are two things you must do within 30 days: file (in the trial court) a notice of intent to seek a supervisory writ, and get the trial judge’s signature on the order setting the return date, i.e. the deadline to file the application in the court of appeal.

Next question: When does the 30 days start running? If the judge takes the matter under advisement, the answer is easy: when the clerk mails notice of judgment. But things get trickier when the trial judge rules in open court. In that event, the 30 days starts either when the judge rules in open court or later, when the clerk mails notice of written judgment. Usually it’s the latter, but sometimes it’s the former.

The best way to answer these questions is to consult Uniform Rules 4-2 and 4-3 and La. Code Civ. P. art. 1914—the interaction of these provisions determines your deadline. If you’re looking for a practitioner-oriented article explaining these provisions and judicial glosses on them, then take a look at A Writ in Time, published a few years ago in the Louisiana Bar Journal. The article was published shortly after the most recent amendments to Rule 4-3 and art. 1914 in 2003.

If you are writing in all-bold caps, please stop it.

THE OTHER DAY, I RAN INTO AN ENTIRE PARAGRAPH WRITTEN IN ALL CAPITAL LETTERS. TO MAKE MATTERS WORSE, THE ENTIRE THING WAS IN BOLD TEXT. AND I THOUGHT TO MYSELF, “GEEZ, TRYING TO READ THIS IS HURTING BOTH MY EYES AND MY BRAIN. IT’S LIKE THE WRITER IS SHOUTING AT ME, WHICH HURTS MY EARS AND MAKE ME WISH THAT HE WOULD JUST SHUT UP, JUST TO STOP THE PAIN.”

The other day, I ran into an entire paragraph written in all capital letters. To make matters worse, the entire thing was in bold text. And I thought to myself, “Geez, trying to read this is hurting both my eyes and my brain. It’s like the writer is shouting at me, which hurts my ears and makes me wish that he would just shut up, just to stop the pain.”

Which of the two paragraphs above would you rather read? If the latter, then please, please don’t ever write anything that looks like the former. Not in a heading, not in your table of contents, not on the cover of your brief, not even in an e-mail. Not anywhere, ever. Because the last thing you want your readers to think is “Oh, please, just stop.”

If you prefer the former, seek professional help.

Some changes to my appellate blog

Today I’ve taken advantage of the Martin Luther King holiday to do some work on this blog. To describe the content more accurately, I’ve given it a new title, “Louisiana Civil Appeals.” To make the posts more readable, I’ve reformatted the blog. And on the right side of the screen, I’ve added two Feedburner widgets, allowing you to subscribe either in a reader or by e-mail.

How not to write an appealable judgment

Before you can take an appeal in Louisiana, you must first have an appealable judgment. Often this step is fouled up, especially when the judgment results from a motion for summary judgment or an exception.

A judgment granting summary judgment must say more than “summary judgment is granted.” In two cases decided last year, Louisiana appellate courts found judgments like this deficient and dismissed the appeals for lack of an appealable judgment. See Gaten v. Tangipahoa Parish School Board, 2011-1133 (La. App. 1 Cir. 3/23/12), 91 So. 3d 1073; Tyler v. DeJean, 12-760 (La. App. 3 Cir. 8/22/12), — So. 3d —. Both decisions discuss the kind of language that should have been included in the judgment.

On a related note, a judgment that merely sustains an exception without dismissing all or part of the plaintiff’s petition is probably insufficient for the same reasons that the judgments in Gaten and Tyler were insufficient. Also, a judgment sustaining an exception must normally do one of two things: (1) allow the plaintiff time to amend the petition to remove the grounds for the exception; or (2) dismiss all or part of the plaintiff’s petition. See La. Code Civ. P. arts. 933 and 934. A judgment that merely sustains the exception leaves unanswered the question whether the plaintiff’s petition has been dismissed.

Of course, if the judgment dismisses only part of the plaintiff’s petition or resolves only one issue in the case, consult La. Code Civ. P. art. 1915 to determine whether it is appealable.

For more rules governing the form of judgments, See La. Code Civ. P. arts. 1841, 1911, 1918, 1919, 1921, and 1922.

Abbreviating LSU in case names

Since no topic is too arcane or picayune for this blog — here is a case name that includes the name of a well known Louisiana institution:

Tolis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

That’s a mouthful. How would you abbreviate it? Slavishly following the Bluebook or ALWD or both, you might come up with the following:

Tolis v. Bd. of Supervisors of La. State U. & Agric. & Mech. Coll.

Yikes, what an eyesore! I suggest something more compact and easier on they eyes:

Tolis v. Bd. of Supervisors of LSU

The second abbreviated name above is certainly more readable than the first. But is it permissible under the Bluebook or the ALWD Citation Manual? I say yes. Even though LSU isn’t in a Bluebook or ALWD list of approved abbreviations, both the Bluebook and ALWD allow use of widely recognized initials to refer to an entity. Bluebook (19th ed.) Rule 6.1(b)  says:

Some entities with widely recognized initials, e.g., AARP, CBS, CIA, FCC, FDA, FEC, NAACP, NLRB, are commonly referred to in spoken language by their initials rather than their full names; such abbreviations may be used without periods in text, in case names, and as institutional authors.

Similarly, ALWD (3d ed.) Rule 12.2(6) says:

When there is no danger of confusion, commonly known initials may be substituted for a party’s complete name. Do not insert period between the initials. Examples include ACLU, NAACP, and MADD.

Certainly in Louisiana, everyone capable of reading a legal document knows what LSU means. That makes LSU an acceptable abbreviation under both the Bluebook and ALWD.

La. 1st Circuit moving toward system of electronic notification.

The Louisiana First Circuit sent this announcement by e-mail to members of the LSBA Appellate Section. I am reproducing it here for anyone who didn’t receive the e-mail. In essence, the court is moving toward electronic notification in lieu of notification by mail. 

ANNOUNCEMENT

The Louisiana First Circuit Court of Appeal instituted a voluntary Email Notification Program in November, 2009. For the past three years, the program has been enormously successful. Over 2,100 attorneys and parties without counsel have registered for the program and less than 1% have cancelled. In January, the First Circuit is taking the final step to fully implement emailing as an official transmission method for notices of judgment and dispositions of the Court.

The prior law provided that the delay for applying for a rehearing or a writ of certiorari to the Supreme Court runs from the mailing of the notice of judgment and opinion of the appellate court. During the 2012 Regular Session of the Legislature, Act 290 was passed to amend Code of Civil Procedure articles 2166 and 2167 and Children’s Code article 1143. Coordinating changes to the Uniform Rules of Louisiana Courts of Appeal, posted to the announcement section on the First Circuit website, www.la-fcca.org, were adopted in October to take effect January 1, 2013. The changes to the law and rules provide that as of January 1st, the delay for applying for a rehearing or a writ of certiorari to the Supreme Court will run from the date of transmission of the notice of judgment. “Transmission” is defined as the sending by U.S. mail, email, or fax.

Beginning January 1st, the First Circuit clerk’s office will issue a “Notice of Judgment and Disposition” with each opinion and writ application decision issued by the Court. This Notice will comply with the First Circuit’s newly adopted Local Rule 6. Local Rule 6 states that U.S. mailing addresses are to be included on the Notice, but if the Notice is sent to a person by email or fax, the email address or fax number will be printed below the U.S. mailing address for that person. Furthermore, Local Rule 6 states that the clerk will transmit the notice by only ONE of the three transmission methods. Local Rule 6 insures that all litigants are made aware of who received the notice, when, and by what transmission method.

Email notification is sent from 1stcircuitenotify@la-fcca.org with the First Circuit docket number in the subject line and with an electronic image in PDF format of the issuance attached. The advantages for ENotification registrants is that they receive their transmissions from the Court much more quickly than those who opt for U.S. mail. Furthermore, the opinion or disposition of the Court is attached to the email, so the recipient can immediately review it without having to take the extra steps to access the Court’s website. From the Court’s perspective, the ENotification program has significantly reduced costs for postage, printing and copying and has helped the Court deal with recent budget cuts. For more information or to sign up for Enotification, check out the First Circuit website at www.la-fcca.org or call the clerk’s office at 225-382-3000.

Hope you all decide to participate!

Chris
Christine L. Crow
Clerk of Court, First Circuit Court of Appeal
225-382-3000
P.O. Box 4408
Baton Rouge, Louisiana 70821

I, for one, welcome this change; electronic notification is more timely and, lately, more reliable than notification by mail.

Personnel changes at the La. 5th Circuit

The Louisiana Fifth Circuit has a new chief judge (Susan Chehardy) and a new clerk of court (Cheryl Quirk Landrieu). Both are the first women to serve in their respective new positions. The AP story is here.

The jurisdictional statement: Tell them something they don’t already know.

The content of an appellant’s brief in a Louisiana court of appeal is governed by Uniform Rule 2-12.4. The first thing that Rule 2-12.4 requires the brief to do is to “set forth the jurisdiction of the court ....” Many lawyers touch this base by cutting and pasting something generic, like this:

This Honorable Court has jurisdiction under Article V Section 10 of the Louisiana Constitution.

I never write a jurisdictional statement like this. Why? Because I operate under two assumptions:

1. The readers—judges and their law clerks—want me to tell them something they don’t already know.
2. That “something” should explain, not the court’s jurisdiction in the entire legal universe, but the court’s jurisdiction in this specific case.

Rule 2-12.4 doesn’t say what information to include in a jurisdictional statement. So I take a cue from Fed. R. App. P. 28(a)(4) and include the following information in my jurisdictional statement:

• The statutory basis for the court’s jurisdiction and the relevant facts establishing jurisdiction.
• An assertion (supported by record citation) that the judgment appealed from is an appealable judgment, often with citation to the statute or codal article under which the judgment is appealable.
• The filing dates establishing the timeliness of the appeal.

Here is an example:

This Court has jurisdiction of this civil appeal under La. Code Civ. P. arts. 1911, 1915(B), and 2088. The judgment appealed from grants partial summary judgment on an incidental demand (a third-party complaint). The trial court designated the judgment as final under art. 1915(B)(1), making an express determination that there is no just reason for delay. [Footnote citation to record.]

The appellant has timely perfected this appeal. The clerk of court mailed notice of judgment on April 27, 2012. [Footnote citation to record.] Thus, the deadline to apply for new trial was May 8, 2012, and the deadline to take a devolutive appeal was 60 days thereafter, or Monday, July 9, 2012. See La. Code Civ. P. arts. 1974 and 2087(A)(1). Appellant filed its motion for appeal on June 7, 2012, and the trial court signed the order of devolutive appeal on June 12, 2012. [Footnote citation to record.]

Question for court personnel: What information do you want to see in the jurisdictional statement? What purpose does the jurisdictional statement serve for you?