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June 2020

Not too late for a 1915(B) certification

Let’s say that a trial court renders a judgment dismissing only some of a party’s claims, without designating the judgment as final under La. Code Civ P. art. 1915(B). The aggrieved party appeals anyway, and the court of appeal renders a judgment dismissing the appeal for lack of jurisdiction because the judgment needs but lacks an art. 1915(B) designation of finality. Can the appeal be salvaged?

Yes, it can, if the appellant acts promptly. That’s according to the Louisiana Supreme Court’s decision today in Interdiction of Gambino, 2020-312 (La. 6/3/20). In that case, the court of appeal rendered judgment dismissing the appeal on December 11, 2019. Eight days later, the district court signed an order designating the judgment appealed from as final under art. 1915(B). The Louisiana Supreme Court found that the district court’s order was “issued prior to finality of the dismissal of the appeal,” presumably because the order was issued within the 14-day time to apply for rehearing. The Court therefore held that the district court’s order “cured any jurisdictional defect in the appeal.” The Court reversed dismissal of the appeal, directed the court of appeal to supplement the record with the district court’s 1915(B) order, and consider the merits of the appeal.

My original title for this post was “Never too late for a 1915(B) certification,” but that would have been overstating Gambino. Had the time expired to apply for rehearing in the court of appeal before the district court’s 1915(B) order, the result might have been different. Arguably “prior to finality” could include not only the 14-day time to apply for rehearing, but also the 30-day time to apply to the Louisiana Supreme Court for a writ. See La. Code Civ. P. art. 2166. But once the 14-day time expires, the court of appeal cannot change its judgment. So if you ever find yourself in a similar spot, better to act while the court of appeal still has the power to act. (Of course, the best course is to nail down appellate jurisdiction before taking the appeal.)

Hat tips to Thomas Flanagan and Jeff Richardson for spotting this one.

Louisiana moving to Phase 2 re-opening

Earlier this afternoon, Governor John Bel Edwards announced the state’s movement to Phase 2 re-opening this Friday, June 5. To read the governor’s press release, follow this link. Today’s announcement does not include any information about legal deadlines that have been suspended since the onset of the COVID-19 emergency. We’ll probably find out about that on Thursday, when the governor plans to release updated executive orders officially moving the state to Phase 2. That, in turn, will likely dictate whether the Louisiana Supreme Court and courts of appeal continue their own suspensions of procedural deadlines.

Although the state is moving on to Phase 2, the City of New Orleans will remain at Phase 1 beyond June 5. That’s according to an announcement released today by Mayor Cantrell’s office, which you can read by following this link.