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Defendant’s right to appeal summary judgment

Here’s a case that appears destined for the Louisiana Supreme Court. A simplified version of the facts: Plaintiff sues Defendant 1 and Defendant 2. Defendant 1 moves for and is granted a summary judgment dismissing plaintiff’s claim against it. Under La. Code Civ. P. art. 966(G), one effect of the summary judgment is to deprive Defendant 2 of its defense that Plaintiff’s damages were caused in whole or in part by Defendant 1’s negligence. Can Defendant 2 appeal the summary judgment if Plaintiff fails to appeal? In a December 1, 2021 decision, the Fourth Circuit dismissed Defendant 2’s appeal, holding that Defendant 2 cannot appeal the summary judgment and cannot argue Defendant 1’s negligence at trial. Amedee v. Aimbridge Hospitality LLC, 2020-CA-0590 (La. App. 4 Cir. 12/1/21). In its opinion, the Fourth Circuit recognized the anomaly in this result, but found it to be compelled by the res judicata effect of the plaintiff’s failure to appeal the judgment and the language of Article 966(G). The Fourth Circuit also recognized a “Split Among the Circuits” on this issue. Slip Op. at 4.

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