Jurisdiction: The foundation of error preservation

Yesterday we asked why an error must be brought to the trial court’s attention to be corrected there before being raised on appeal. The answer lies in the jurisdiction of the trial and appellate courts.

The first article of the Code of Civil Procedure defines jurisdiction as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” In most civil matters, the Louisiana Constitution vests original jurisdiction in the district courts and appellate jurisdiction in the courts of appeal. This means that the court of appeal’s jurisdiction is to review the actions of the trial court. If an issue has not been submitted to and decided by the trial court, “there is nothing for [the court of appeal] to review.” Cortes v. Lynch, 846 So. 2d 945, 953 (La. App. 1 Cir. 2003). Indeed, “[t]he very word ‘review’ presupposes that a litigant’s arguments have been raised and considered in the tribunal of first instance.” Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Cases that best illustrate this principle are those in which an appellant, for the first time on appeal, raises a ground for nullifying a judgment as a reason to reverse a judgment. (Examples: lack of service of process, judgment obtained by fraud or ill practices. See La. Code Civ. P. arts. 2002 and 2004.) Louisiana’s appellate courts uniformly hold that grounds for nullity cannot be raised for the first time on appeal from an ill-gotten judgment. Rather, the party seeking to nullify a judgment must raise the issue initially in the trial court through an action for nullity under art. 2001.

A prime example of this caselaw is Phillips v. Space Master Intl., 696 So. 2d 64 (La. App. 5 Cir. 1997). In Phillips, the defendant argued on appeal that the plaintiff had taken a default judgment through ill practice: the plaintiff had given the defendant an informal, indefinite extension of time to plead in response to a lawsuit, only to take a default judgment against the defendant without giving the defendant any warning that the extension was over. The appellate court refused to consider the argument, explaining: “[A]ppellant cannot attack this default judgment in appeal of the judgment itself. Rather, his complaints related to fraud or ill practice must be brought as a direct action and not as an appeal..” Id. at 66.

Phillips is not an anomaly. Additional examples of the same principle’s application include the following:

• Hughes v. Sanders, 847 So. 2d 165 (La. App. 2 Cir. 2003) (insufficiency of service).
• Sharff v. Tanner, 486 So. 2d 1047 (La. App. 2 Cir. 1986) (improper service).
• Thompson v. Matthews, 374 So. 2d 192 (La. App. 4 Cir. 1979) (insufficiency of service).

The courts in these cases based these holdings not on technicalities, but on the constitutional limit on their jurisdiction. As courts of appeal, they had no jurisdiction to entertain an action for nullity that had not been brought initially in the district court.

Thus ends today’s lesson on jurisdiction as the foundation for the law on preserving errors. In the next posts, we will look at the public policy behind this area of law: prevention of sandbagging and conservation of judicial resources.