(Warning: The following post proves that there is no appellate procedural issue too arcane for this blog.)
Can a party appeal a denial of summary judgment? Can a trial court designate a denial of summary judgment as final and immediately appealable? According to the Code of Civil Procedure, the answer to both questions is “no.” Only a final judgment can be appealed. See La. Code Civ. P. art. 2083. A final judgment is one that determines the merits in whole or in part. Id. art. 1841. A denial of summary judgment does not determine the merits, not even in part; therefore it is not a final judgment. While a partial final judgment can be designated as final under art. 1915(B), a denial of summary judgment cannot be so designated, because it is not a final judgment. See, e.g., Clovelly Oil Co. v. Midstates Petroleum Co., 12-142 p. 5 (La. App. 3 Cir. 6/12/12), 95 So. 3d 1168, 1171.
That seems ironclad enough. But what if the parties file cross-motions for summary judgment, and in a single judgment, the trial court grants one motion and denies the other, and designates the entire judgment as final under art. 1915? Such a judgment would certainly be appealable to the extent it grants partial summary judgment. But on the appeal, can the appellate court also review denial of the appellant’s summary-judgment motion?
In two cases presenting this scenario, Louisiana appellate courts have reviewed both the granting of the appellee’s summary-judgment motion and the denial of the appellant’s cross motion. See Dean v. Griffin Crane & Steel, Inc., 05-1226 p. 4 n. 3 (La. App. 1 Cir. 5/5/06), 935 So. 2d 186, 189 n. 3; Maya v. Priola Constr. Corp., 12-2027 (La. App. 3 Cir. 3/6/13), — So. 3d —.*
Arguably, Dean was a special case: the appellant had applied for a supervisory writ to review denial of summary judgment, but the court dismissed the writ application on grounds that the appellant-applicant could obtain review in the appeal. In his concurrence, Judge Downing expressed doubt about the court’s appellate jurisdiction over denial of summary judgment, but concurred “[u]nder law of the case principles” because of the court’s prior order dismissing the writ application.
The Maya court did not mention the jurisdictional issue, even though it was discussed in the appellant’s brief.* The court simply determined that issues of material fact prevented either side from winning summary judgment. Thus, the court reversed the granting of the appellee’s motion and affirmed denial of the appellant’s motion.
Notwithstanding Dean and Maya, my suggestion to anyone on the losing end of cross-motions for summary judgment is to appeal the granting of the other side’s motion and to file a timely application for a supervisory writ to review denial of your motion. The majority resolution of appellate jurisdiction in Dean is shaky in light of Judge Downing’s concurrence. And in Maya, there was no real consequence from the court’s considering the merits of the trial court’s denial of summary judgment. Since the court affirmed that aspect of the judgment, the result was the same as it would have been if the court limited its review to the granting of partial summary judgment.
* Disclosure: I represented the appellant in Maya.