What happens when a partially incomplete judgment is appealed?
01 February 2019
Let’s say a party appeals a trial-court judgment that is partially incomplete. For example:
- The judgment awards plaintiffs “$4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred,” but fails to specify the amounts of penalties and interest.
- The judgment awards a worker’s compensation claimant “[a]ll medical bills and expenses not paid by his general health insurer” and “[a]ll out of pocket medical expenses incurred for the lumbar spine which are part of the evidence admitted at trial,¨ but fails to specify the amounts of these awards.
- The judgment awards “$16,420.00 ... together with reasonable attorney’s fees,” but fails to specify the amount of attorney’s fees.
Each of these judgments is technically unappealable because part of the relief awarded is indefinite. But if the judgment comes up on appeal anyway, what’s an appellate court to do with it? As shown in some recent decisions, this question has bedeviled the First Circuit. Last month, the issue came up in two cases that went en banc, with no majority agreement on what to do.
First, some history. About two years ago, the issue came up in Duet v. Landry, 2016-0575 (La. App. 1 Cir. 3/6/17), 2017 WL 900066, 2017 La. App. Unpub. LEXIS 77. The Duet judgment awarded “4,733, along with any penalties and interest, for the amount of income tax liability Plaintiffs incurred.” Because the judgment failed to specify the amount of penalties and interest awarded, the court found the judgment indefinite and therefore not final. So the court dismissed the appeal without prejudice and remanded the case to the district court for further proceedings, including entry of a final judgment setting forth the amounts of penalties and interest. The panel consisted of judges Welch, Crain, and Holdridge.
About three months later, a five-judge panel of the First Circuit faced the same issue in Crockerham vl Weyerhaeuser Holden Wood Products, 2016-0331 (La. App. 1 Cir. 6/2/17), 223 So. 3d 533, a worker’s compensation case. The judgment in the claimant’s favor included awards for “[a]ll medical bills and expenses not paid by his general health insurer” and “[a]ll out of pocket medical expenses for the lumbar spine which are part of the evidence admitted at trial ....” The panel agreed that the failure to specify the amounts of these awards made the judgment indefinite and therefore not final, but the panel split on what to do about that. A two-judge plurality (Whipple and Guidry) vacated the parts of the judgment that were indefinite and not final, and decided the merits of the rest of the judgment. Remarkably, in reaching this decision, the plurality noted but declined to follow Duet v. Landry. See Crockerham, 2016-0331, pp. 16–17 n. 6. Judge Pettigrew concurred without giving reasons. Judge Holdridge—who was on the Duet panel—dissented, citing Duet. Judge McClendon also dissented, though on the merits and not on appealability.
Fast-forward to December 2018, when the First Circuit rendered a pair of en banc decisions involving the same procedural issue. The first (and shorter) of the pair is Advanced Leveling & Concrete Solutions v. Lathan Co., 2017-1250 (La. App. 1 Cir. 12/20/18), 2018 WL 6716997, 2018 La. App. LEXIS 2564 (en banc). The judgment in Advanced Leveling awarded $16,420.00 ... together with reasonable attorney’s fees,” without specifying the amount of attorney’s fees. It appears that the court went en banc in Advanced Leveling to resolve the conflict between Duet and Crockerham. But the conflict may have remained unresolved because of no majority decision. A five-judge plurality (Guidry, McClendon, Welch, Crain, and Penzato) subscribed to an opinion overruling Crockerham and dismissing the appeal. Judge Holdridge concurred in the result, noting that the judgment had not been designated as final under La. Code Civ. P. art. 1915(B). Chief Judge Whipple (joined by Judge Higganbotham) dissented for reasons stated in Crockerham. Judges Pettigrew, Theriot, and Chutz dissented without giving reasons.
The next day, an en banc First Circuit rendered a judgment in ABS Services, Inc. v. James Construction Group, LLC, 2016-0705 (La. App. 1 Cir. 12/21/18), 2018 WL 6718889, 2018 La. App. LEXIS 2578. ABS was set for oral argument before the en banc court specifically to resolve the conflict between Duet and Crockerham: i.e., “whether or not the award of ‘reasonable attorney’s fees’ in an otherwise final judgment renders the judgment, in whole or in part, nonappealable as uncertain or indefinite in nature.” But the appellee found a procedural way around this issue, filing motion for limited remand for the sole purpose of allowing the trial court to designate the judgment as final under La. Code Civ. P. art. 1915(B). The First Circuit granted the order, the trial court signed the 1915(B) order, and the case returned to the First Circuit to be decided on the merits. (Unfortunately, a majority of the court could not agree on the resolution of all issues in this complex case—that is a topic for another post.) Judge Crain dissented “because this court does not have appellate jurisdiction to consider the merits of this appeal,” citing the previous day’s decision in Advanced Leveling. He further opined that the art. 1915(B) certification did not cure the defect in the judgment.
What will happen in the next First Circuit case with this issue? I don’t know. The lesson to be learned here is to avoid the issue. Try to avoid having a judgment signed that leaves the amount of any relief to be determined later. Otherwise, try to include in the judgment a designation of finality under La. Code Civ. P. art. 1915(B). If you go the latter route, ask the judge to state for the record the reasons why the judgment should be immediately appealable.