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September 2018

Rehearing from a writ denial?

Under Uniform Rule 2-18.7, a Louisiana court of appeal will not consider an application for rehearing when the court has denied an application for a supervisory writ. The rule states that the court will consider rehearing when the court has done one of the following things:

  1. Granted a writ application on the merits;
  2. Dismissed an appeal; or
  3. Ruled on the merits of an appeal.

Since Rule 2-18.7 doesn’t allow for rehearing following a writ denial, the courts of appeal will either deny or refuse to consider rehearing following a writ denial.

But in a recent decision, the Louisiana Third Circuit may have created an exception to this rule. In Trapp v. Allstate Property & Casualty Insurance Co., 18544 (La. App. 3 Cir. 9/19/18), 2018 WL 4472472, 2018 La. App. LEXIS 1764, 2018 BL 338092, the trial court rendered a partial summary judgment on liability, holding a defendant 100% at fault for an automobile accident. The defendant applied to the Third Circuit for a supervisory writ. According to the Third Circuit’s decision, the court initially denied the writ, but later changed its mind on rehearing:

We initially denied the writ, incorrectly believing that the Defendants-Relators had an adequate remedy on appeal. However, we granted rehearing based on our determination that the partial summary judgment on liability did not constitute an appealable judgment because it was not certified as a final judgment by the trial court pursuant to La. Code Civ. P. art. 1915(B).... Therefore, we will address the merits of the writ.

18-544, p. 1. What gives? According to the prior order granting rehearing, the court originally dismissed the writ application rather than deny it.

I don’t know what to make of this. Usually, “adequate remedy on appeal” is a reason for denying an application, not dismissing it. Perhaps the court deemed the dismissal of a writ application to be analogous to the dismissal of an appeal, and thus considered rehearing under Uniform Rules 4-8 and 4-9. Under Rule 4-8, the rules applicable to appeals fill any gaps in the rules governing writ applications. And under Rule 4-9, the rules governing rehearing in appeals apply to writ applications.