For anyone who doesn’t already know (like me until a few minutes ago), the Louisiana Third Circuit now has e-filing. To register, follow this link and click where it says “create an account.” To read the court’s e-filing rules, follow this link.
Today the Louisiana Supreme Court reinstated an appeal that had been dismissed for untimeliness. Schiff v. Pugh, 2022-OC-210 (La. 4/12/22). The issue was doubt over either the date or adequacy of the notice of judgment.
Here’s what happened: In a legal-malpractice case, the trial court granted defendants’ motion for summary judgment. On November 25, 2020, the trial judge signed a final judgment dismissing the case. The bottom of the notice of judgment looked something like this:
If notice of judgment was mailed on November 25, the deadline to move for new trial would have been December 7. See La. Code Civ. P. art. 1974. Counsel for both sides did not receive the notice until December 9, 2020. Two days after receiving the notice of judgment, plaintiff filed a motion for new trial. Plaintiff filed his motion for appeal on March 9, 2021, presumably within 60 days after denial of new trial but more than 60 days after the December 7 deadline to move for new trial.
On appeal, the Fourth Circuit issued a rule to show cause why the appeal should not be dismissed as untimely. In response, the plaintiff-appellant made two arguments: first, that the purported notice of judgment was signed by the judge’s law clerk rather than a deputy clerk of court; second, that the purported notice of judgment did not explicitly state that it was actually mailed on November 25, and in fact was not received by counsel until December 9. A majority of the Fourth Circuit panel dismissed the appeal, with Judge Ledet dissenting. The Louisiana Supreme Court granted the plaintiff’s writ application, vacating the Fourth Circuit’s judgment and reinstating the appeal. The LASC found that "the grounds cited by the court of appeal for dismissal of the appeal are not free from doubt," and therefore resolved the doubt in favor of maintaining the appeal.
While this chapter of the story has a happy ending for the appellant, we can all benefit from the appellant’s experience. My suggestion: when there’s uncertainty or ambiguity over when a notice of judgment was mailed or transmitted, always resolve the doubt conservatively. Assume the notice was sent on the same day that the judge signed the judgment unless somethine else unambiguously indicates a later date for sending the notice.
The next issue of the Scribes Journal of Legal Writing will include one of my contributions: Will I Ever See the Day When Lawyers Write without Clichés? The article examines clichés as a species of metaphor and shows how clichéd writing can be both an effect and a cause of clichéd thinking. Good news: if you want to read it, you don’t have to wait for your copy of the Scribes Journal to arrive in the mail. Just follow this link.