Louisiana Civil Appeals

Two cases of interest to appellate lawyers.

The Louisiana Association of Defense Counsel’s January 2017 newsletter discusses two cases of interest to lawyers practicing in Louisiana’s appellate courts:

• In Nabors Offshore Corp. v. Caterpillar, Inc., 2016-0003 (La. App. 4 Cir. 11/30/16), the Fourth Circuit reminds us that a denial of a supervisory writ is not a decision on the merits, even when accompanied by the comment of “no error” in the trial court’s judgment. “[A] denial of a writ application is of no precedential value, regardless of the reasons assigned. That is, a writ denial is not precedential for any purpose; it is merely a statement that the court is declining to exercise its supervisory jurisdiction to review the issues addressed at that time.” Id. at 7.
  
  
• Urquhart v. Spencer, 2015-1354 c/w 2015-1355 (La. App. 4 Cir. 12/1/16), provides a lesson about the form of a final, appealable judgment. A final judgment must contain decretal language, meaning that it “must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied.” Id. at 3. The judgment in this multi-defendant case recited that it was against “defendants,” without naming which defendants were cast in judgment and without assigning percentages of fault. Because the judgment lacked the required decretal language, it was not final or appealable. Thus, the Fourth Circuit dismissed the appeal.

When not to file a motion for new trial.

Let’s say that the defendant in a civil action files a motion for summary judgment, and the trial court denies the motion. Should the defendant file a motion for new trial seeking reconsideration of the summary-judgment motion? The answer is probably “no.” One of two things can happen, and both of them are bad.

One bad thing that can happen is that the motion for new trial is denied. That’s bad because, by the time the motion for new trial is decided, it will probably be too late to apply to the court of appeal for a supervisory writ to review the denial of summary judgment. A denial of summary judgment is an interlocutory judgment, not a final judgment. Louisiana’s appellate courts agree that, according to the Code of Civil Procedure, a motion for new trial is a means for the trial court to reconsider a final judgment—it is not a proper vehicle to seek reconsideration of an interlocutory judgment. See, e.g., Winston v. Martin, 34,424, p. 3 (La. App. 2 Cir. 9/21/00), 801 So. 2d 389, 391–92. One upshot of this rule is that a purported motion for new trial seeking reconsideration of an interlocutory judgment does not suspend or interrupt the 30-day time to apply to the court of appeal for a supervisory writ. Thus, by the time the trial court rules on the motion for new trial, it will probably be too late to seek the court of appeal’s supervisory review of the denial of summary judgment. See Clement v. American Motorists Ins. Co., 98-504, pp. 3–4 (La. App. 3 Cir. 2/3/99), 735 So. 2d 670, 672; Carter v. Rhea, 2001-0234 (La. App. 4 Cir. 4/25/01), 785 So. 2d 1022.

But what if the trial court grants a new trial, reconsiders its earlier ruling, and grants summary judgment? That’s bad too, at least if the appeal goes to the Louisiana Fourth Circuit. In a line of cases presenting that scenario, the Fourth Circuit has reversed or vacated the trial court’s judgment as procedurally flawed because—again—the Code of Civil Procedure does not authorize a motion for new trial to reconsider an interlocutory judgment. See Magallanes v. Norfolk So. Ry., 2009-0605, pp. 3-5 (La. App. 4 Cir. 10/14/09), 23 So. 3d 985, 988-89; Marshall v. Air Liquide-Big Three, Inc., 2009-1304 (La. App. 4 Cir. 3/3/10), 2010 WL 8972037; Daniels v. SMG Crystal, LLC, 2013-0761, pp. 9-12 (La. App. 4 Cir. 12/4/13), 128 So. 3d 1272, 1276-78. A couple of weeks ago, the Fourth Circuit extended this rule to vacate a judgment granting new trial and sustaining a peremptory exception. Llopis v. State, Dept. of Health & Hosps., 2016-0041 (La. App. 4 Cir. 12/14/16), — So. 3d —.

“But wait a minute,” you may be thinking. “If a denial of summary judgment is interlocutory, can’t that interlocutory judgment be reconsidered any time before trial on the merits?” Of course it can. According to the Fourth Circuit, the proper way  to seek the trial court’s reconsideration is to re-file the summary-judgment motion, with all attachments. Magallanes, p. 4, 23 So. 3d at 988; Daniels, p. 10, 128 So. 3d at 1277; Condon v. Logan, 2015-0797, p. 9 (La. App. 4 Cir. 3/30/16), 190 So. 3d 778, 784; Carter, 785 So. 2d at 1026 (Tobias, J., concurring).

For a critique of this Fourth Circuit rule, read Judge Murray’s reluctant concurrence in Marshall. Meanwhile, if your peremptory exception or summary-judgment motion is erroneously denied, your best move is probably to go straight to the court of appeal with an application for a supervisory writ. Your chance of success there will probably be better than the chance of changing the trial judge’s mind.

 

Recent grants of certiorari by the LASC

Last Friday, the Louisiana Supreme Court granted certiorari in four civil cases. Here is a quick rundown of those cases:

Huval v. State ex rel. Dept. of Public Safety & Corrections, 2016-CC-1857. This case presents a question of subject-matter jurisdiction. The two plaintiffs were terminated from their employment by the Louisiana State Police. They appealed their terminations to the State Police Commission, a body with authority similar to that of the Civil Service Commission. The Commission overturned their terminations and suspended them. The State Police appealed the Commission’s decision to the Louisiana First Circuit, which reversed one plaintiff’s termination and upheld the other plaintiff’s suspension. The plaintiffs then filed a civil action for damages against the State Police, alleging defamation, malicious prosecution, and intentional infliction of emotional distress. As damages, they claimed loss of earnings  and earning capacity, loss of benefits, and loss of employment. The State Police pleaded a declinatory exception of lack of personal jurisdiction, arguing that the Commission had exclusive jurisdiction over the plaintiffs’ claims. The 19th JDC overruled the exception. The First Circuit, splitting 2-1, granted a supervisory writ and affirmed the 19th JDC’s judgment, with Judge McClendon dissenting. To read the First Circuit’s decision, follow this link.

Successions of Toney, 2016-C-1534. The issue in this case is the validity of a notarial testament. The trial court found that the testament’s failed to comply with La. Civ. Code art. 1577 and nullified the testament. The First Circuit affirmed 2-1, with Judge Higginbotham dissenting. To read the First Circuit’s decision, follow this link.

Acurio v. Acurio, 2016-C-1395. The issue in this case is the admissibility of a purported prenuptial agreement in the trial of a property settlement. The prenuptial agreement was executed four days before the marriage, between a notary and just one witness. (Under La. Civ. Code art. 1833, an authentic act requires two witnesses.) The plaintiff acknowledged the agreement under oath, but not until after the marriage. The trial court held that the agreement was null and therefore inadmissible. The Second Circuit reversed, holding that no time limit exists to acknowledge an act under private signature. This ruling appears to have created a circuit split; the Second Circuit acknowledged two decisions supporting the plaintiff’s argument for nullity. To read the Second Circuit’s decision, follow this link.

Safford v. Hammerman & Gainer Int’l, Inc., 2016-C-1591. The plaintiff, a former employee of the New Orleans Fire Department, filed a worker’s compensation claim against the Department for supplemental earnings benefits. The Department argued that the claim was prescribed. The issue is whether prescription is subject to an estoppel exception, applicable when an employer lulls an employee into a false sense of security and thus prevents the employee from timely making a claim. The trial court found estoppel inapplicable and sustained the Department’s exception of prescription. The Fourth Circuit reversed. To read the Fourth Circuit’s decision, follow this link. Although there was no evidence of any intent to mislead the plaintiff, the Fourth Circuit found that the circumstances resulted in the plaintiff’s “reasonable confusion” about the status of his claim.

To sum up: these four decisions include two cases with dissenting opinions in the court of appeal, one case where the court of appeal disagreed with the trial court, and one case appearing to create a circuit split. In short, they are all cases in which reasonable judges could reach differing conclusions. This common thread is something to consider the next time you apply to the Louisiana Supreme Court for a writ of review.

Interview with Justice Knoll

The latest issue of the Louisiana Bar Journal has an interesting interview with soon-to-be-retired Justice Jeanette Theriot Knoll. Beside talking about her life and career, she also provides a peek into the inner workings of the Louisiana Supreme Court and the Third Circuit Court of Appeal. For anyone who practices in either court, the interview is a must-read.

High-quality appellate CLE is coming to New Orleans.

If you will need specialized appellate CLE next year, then mark your calendars. The 2017 DRI Appellate Advocacy Seminar will be held in New Orleans on May 11–12. In case the link doesn’t work for you, here’s the blurb:

This program features presentations on the impact of various technological advances on brief writing, certification of issues to a state court, and the role of insurance on appeal. We also will offer guidance on brief writing and preparation for argument in the context of en banc review, and discuss strategic considerations when the government is a party to your appeal. This year, we are adding a panel of in-house counsel, who will offer their insight on the appeal process and effective management of appeals. And for the first time, our highly regarded mock argument will be held at the United States District Court, just blocks from our hotel.