Preserving error

Preserving denial of summary judgment in federal court

Let’s say you represent a defendant in federal court. You file a motion for summary judgment, which is denied (erroneously, in your opinion). You proceed to trial and lose. To preserve for appeal the denial of summary judgment, do you have to re-urge the issue via a post-trial motion for judgment as a matter of law under Fed. R. Civ. P. 50?

Last month, the U.S. Supreme Court answered that question, making a distinction between motions involving factual issues and those involving purely legal issues. Dupree v. Younger, No. 22-210 (May 25, 2023).

If the summary-judgment motion depends on facts developed in discovery, then the losing party must re-urge the issue after trial through a post-judgment motion under Rule 50. The rationale is that the facts developed pre-trial (e.g. in depositions, affidavits, admissions, etc.) are superseded by the facts developed at trial. "So after trial,” the Supreme Court explained, “a district court's assessment of the facts based on the summary-judgment record becomes ancient history and is not subject to appeal." Slip op. at 5 (cleaned up). Thus, to be preserved for appeal, the issue must be re-urged in a Rule 50 motion, with the trial record superseding the summary-judgment record.

On the other hand, if the issue raised in the summary-judgment motion is “purely legal,” meaning that it “can be resolved without reference to any disputed facts,” then there is no need to re-urge the issue in a Rule 50 motion to preserve it for appeal.  Id. at 6. The rationale is that, unlike the factual record, the law is the same after trial as it is before. Writing for the Court, Justiice Barrett explained the difference:

[A]n appellate court’s review of factual challenges after a trial is rooted in the complete trial record, which means that a district court’s factual rulings based on the obsolete summary-judgment record are useless. A district court’s resolution of a pure question of law, by contrast, is unaffected by future developments in the case. From the reviewing court’s perspective, ther is no benefit to having a district court reexamine a purely legal issue after trial, because nothing at trial will have given the district court any reason to question its prior analysis. We therefore hold that a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment.
[Slip op. at 6.]

Where to file an answer to an appeal

Under La. Code Civ. P. art. 2133, an appellee can file an answer to an appeal to obtain relief against the appellant that the trial court denied. The answer is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against [the appellee] in favor of the appellant ....” But Article 2133 does not say which court to file the answer in. Since the deadline to file it is 15 days after the record is lodged in the court of appeal, usually the answer is filed in that court. But some Louisiana decisions hold that it’s okay to file the answer in the trial court (presumably before the record lodged in the court of appeal). The most recent example is a decision last month on rehearing by the Third CircuitBoudreaux v. Take 5 LLC, 22-44 (La. App. 3 Cir. 12/14/22). The Boudreaux court followed the First Circuit’s 2016 decision in Succession of Poole, 2015-1317 (La. App. 1 Cir. 10/28/16), 213 So. 3d 18, which is discussed in this 2017 blog post.

My suggestion: if you’re going to file an answer in the trial court (which I don’t recommend), do it well before the record is lodged in the court of appeal, so that the answer will be included in the record before the court of appeal. In Boudreaux, the appellee filed his answer the day before the return date for lodging the record, and the answer was included in a supplemental record lodged in the Third Circuit. The result might have been different if the appellee filed his answer after the return date for lodging the record; in that case, the answer would not have been in the record for the Third Circuit’s consideration.

Amendments to Uniform Rules

If you consult Thomson Reuters Louisiana Rules of Court to look up the Uniform Rules of the Louisiana Courts of Appeal, you may have noticed something: a slew of amendments, scheduled to become effective on January 1, 2023. A committee headed by Louisiana First Circuit Judge Allison Penzato undertook a stem-to-stern revision of the entire body of Uniform Rules. The comprehensive revision was approved on May 2, 2022, and will kick in with the new year.

So what’s in store? I’ve been comparing the old rules with the new ones to see what’s different, and I’m about two-thirds of the way through that project. It looks like the committee had three goals. One was to update the rules to account for electronic filing. All five Louisiana courts of appeal now allow electronic filing, and for electronic filers (i.e. the vast majority of lawyers), that development makes rules applying only to paper obsolete, such as numbers of copies, binding of briefs and writ applications, etc. Another thing the committee accomplished was to adopt some uniform style choices—for example, always referring to the court itself as “the Court of Appeal,” always using “shall” for mandatory things, and using the same numbering system for tabulated lists. The third goal appears to have been to drop rules that have become obsolete. I’m about two-thirds of the way through comparing the old rules to the new ones, and so far, everything I’ve seen falls into at least one of these categories.

In some future posts, I hope to go through the rules one at a time to describe the amendments. I’m also working on finding a public-domain document containing the rules to take effect in 2023; so far, the only place I can find them is in the 2022 edition of the Thomson Reuters Louisiana Rules of Court book. If I can’t find a document like that, I may create my own and post it on this blog. So stay tuned.

The place to win an appeal

Quotable quote by Justice Robert H. Jackson:

Most lawsuits are ended as soon as there is a final settlement of the facts. The success or failure of young lawyers will be determined by the way they investigate and prepare and present cases to the triers of fact. A surprising number of cases every term are thrown out of our Court because counsel in the trial courts have not made adequate records, have not preserved crucial questions or have not asked appropriate instructions or findings. The place to win an appeal, as well as a verdict, is in the trial court.

Robert H. Jackson, “The Advocate: Guardian of Our Traditional Liberties,” in Classic Essays on Legal Advocacy 21, 28 (George Rossman ed. 2010).

How (or how not) to fix an erroneous damages award in federal court

Last week, the U.S. Fifth Circuit issued a valuable opinion on how to fix erroneous awards of damages in the federal system. As explained by the court, “the Federal Rules of Civil Procedure provide several ways for a federal litigant to seek a different damages figure than that which the jury awards. And [plaintiff] chose exactly none of them.” Acadian Diagnostic Labs., LLC v. Quality Toxicology, LLC, No. 19-30320, slip op. at 10 (5th Cir. July 13, 2020). The court’s opinion is a handy summary of the motions available in federal court to address errors in the district court, before the cement dries on the final judgment.

The case was a suit for breach of two contracts involving payment for testing lab specimens. Before trial, Judge Brade (M.D. La.) rendered partial summary judgment in the plaintiff’s favor on one of the contracts, finding that the defendant owed damages for 2,027 of the 2,679 contested specimens. As to the 2,027 undisputed samples, Judge Brady concluded that the defendant owed the plaintiff $1,017,528.20, less $73,134.34 already paid (the difference is $944,393.86). The judge apparently left for the jury the question of damages for the remaining 652 specimens.

The jury returned a verdict in plaintiff’s favor on both contracts. For the contract on which Judge Brady had granted partial summary judgment, the jury awarded damages of $269,706.50. The verdict form did not specify whether this figure was for all 2,679 specimens or just the 652 specimens on which Judge Brady had denied summary judgment.

Shortly after the verdict, Judge Brady died. Fifteen months later, another judge entered final judgment for plaintiff on the jury verdict. The final judgment didn’t mention Judge Brady’s prior summary judgment or his damages calculation for the 2,027 undisputed specimens.

Both sides appealed. In its cross-appeal, the plaintiff argued that the $269,706.50 award was too low and should be amended to reflect total damages of over $1.3 million or, alternatively, at least the $1,017,528.20 found to be owed by Judge Brady’s partial summary judgment.

The Fifth Circuit rejected the plaintiff’s argument and affirmed the final judgment. The court began by citing the Seventh Amendment, which prevents an appellate court from simply increasing the damages awarded in a verdict. The court then went on to list the motions available in the trial court to head off or correct an erroneous verdict:

  • A pre-verdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(a)
  • If a pre-verdict motion for JMOL has been filed, a renewed post-verdict motion for judgment as a matter of law under Fed. R. Civ. P. 50(b)
  • A motion for new trial (in this instance, a new trial on damages) under Fed. R. Civ. P. 59(a)

Because the plaintiff failed to file any of these motions in the district court, it forfeited its ability to seek appellate review of the jury verdict.

The Fifth Circuit went on to describe motions that were available to address the inconsistency between Judge Brady’s partial summary judgment for $1,017,528.20 and the final judgment awarding only $269,706.50:

  • A request that the judgment be set out in a separate document under Fed. R. Civ. P. 58(d). The plaintiff could have used this rule to request entry of a final judgment reflecting both the jury verdict and the partial summary-judgment opinion, but failed to do so.
  • Within 28 days after entry of the final judgment, a motion to alter or amend under Fed. R. Civ. P. 59(e). This rule, the Fifth Circuit pointed out, is designed to enable the district court to fix its own errors and, if successful, can make an appeal unnecessary.
  • Even after the time for a Rule 59(e) motion, a motion for relief from the judgment under Fed. R. Civ. P. 60(b). Among the grounds for this motion is “mistake,” including a judicial mistake.

But because the plaintiff failed to use any of these procedures to address the inconsistency in the district court, the plaintiff forfeited its right to raise the inconsistency on appeal.

An answer to the appeal is as good as a cross-appeal—sometimes.

Let’s say your client didn’t get a complete win in the trial court, but does not want to appeal unless the other side appeals. The other side appeals. Should you cross-appeal? Or should you just answer the other side’s appeal?

Non-Louisiana practitioners may be asking, “What is this answer to an appeal?” It’s a procedure authorized by La. Code Civ. P. art. 2133(A), under which an appellee may seek to have the trial court’s judgment modified, revised, or reversed in part. It’s usually much less expensive than a cross-appeal; while a cross-appellant may have to pay part of the cost of preparing and lodging the record, an appellee who answers the appeal need only pay a filing fee of $74 to $124 (depending on the circuit). And you always have more time to answer the appeal than you have to cross-appeal. Compare La. Code Civ. P. art. 2087(B) (time to cross-appeal) with art. 2133(A) (time to answer an appeal).

But there is a catch. Under art. 2133(A), an answer to an appeal is “equivalent to an appeal on [the appellee’s] part from any portion of the judgment rendered against him in favor of the appellant ....” The emphasized words mean that the answer is good only for seeking relief against the appellant. It is not good for seeking relief against any other party who did not appeal.

A few years ago, Louisiana lawyer S. Mark Tatum wrote an excellent article on this topic for the Louisiana Bar Journal, entitled Questions About Answers: Problems with Answers to Appeals and Protective Cross-Appeals Under Louisiana Procedure, 57 La. B. J. 306 (Feb./Mar. 2010). Mark’s article is a must-read for any lawyer practicing in Louisiana’s appellate courts.


Motion for new trial not a prerequisite to appeal

When trial results in an adverse final judgment, a party may move for new trial under La. Code Civ. P. arts. 1971 et seq. Often, the arguments raised in a motion for JNOV or new trial can be the same as those raised in an appeal. This raises two questions. The first is whether you must file a motion for new trial to preserve your right to appeal. The second is whether, if you do file such a motion, must you include every issue and argument that you will make on appeal if the motion fails.

Fortunately, the answer to both questions is “no.” You do not have to file a motion for new trial to preserve your right to appeal. A quotable quote to this effect comes from Grosch v. De Bautte, 203 So. 2d 906, 908 (La. App. 4 Cir. 1967):  “With respect to the contention that appellants should have applied for a new trial after the rendition of judgment, all we can say is that we know of no law which makes it necessary as a prerequisite to appealing that the aggrieved litigant apply for a new trial.”

And if you do file a motion for new trial, you don’t have to include every issue that you might raise on appeal. The court of appeal put it well in Luttrell v. International Paper Co., 511 So. 2d 7, 7–8 (La. App. 3 Cir. 1987):

Mover argues that since International did not seek a new trial as to the issue presented in its third party demand, but only sought a new trial on the statutory employer-employee issue, International has limited itself to appealing only as to that issue. We disagree ....

.... Our Code of Civil Procedure does not require the aggrieved party to file an application for new trial before appealing nor is there any authority in our law supporting the proposition that one must raise all issues in a motion for a new trial in order to preserve those issues for review in a subsequently filed appeal.

A more recent application of this rule appears in Hicks v. Steve R. Reich, Inc., 873 So. 2d 849, 851 (La. App. 2 Cir. 2004)

[T]here is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal.

Additur, remittitur, and acquiescence

Code of Civil Procedure art. 1814 authorizes a trial court to grant an additur or remittur if the court believes that the verdict is so excessive or inadequate that a new trial should be granted for that reason alone. In such cases, the trial court must give the party adversely affected by the additur or remittur the opportunity to consent to it as an alternative to a new trial on quantum. That is, the additur may be granted only with the defendant’s consent, and a remittitur may be granted only with the plaintiff’s consent. See Accardo v. Cenac, 722 So. 2d 302, 306 (La. App. 1 Cir. 1998).

Consenting to an additur or remittitur makes lawyers nervous. The reason is that, under La. Code Civ. P. art. 2085, an appeal cannot be taken by a party who voluntarily and unconditionally acquiesced in an adverse judgment. If you consent to an additur or remittitur, have you acquiesced in the judgment and lost your right to appeal the amount of damages?

In 1975, the Louisiana Supreme Court answered this question in the affirmative. In Miller v. Chicago Insurance Co., 320 So. 2d 134 (La. 1975), the Court held that a defendant who agreed to an additur or a plaintiff who agreed to a remittitur, while not losing the right to appeal entirely, lost the right to appeal the amount of damages. Any right of a party agreeing to an additur or remittitur to complain of the amount of damages was limited to answering the other side’s appeal.

Nine years later, the Louisiana Legislature amended La. Code Civ. P. art. 2083 to allow appeal of "a judgment reformed in accordance with an additur or remittitur. See 1984 La. Acts No. 59. The intermediate appellate courts have interpreted this legislation as overruling Miller and allowing a party who agreed to an additur or remittitur to appeal the award of damages. See Karl v. Amoco Prod. Co., 492 So. 2d 1279, 1280 (La. App. 3 Cir. 1986)Accardo v. Cenac, 722 So. 2d at 307 n. 3. In a similar vein, the court in Hodapp v. Am. Indem. Co., 618 So. 2d 32, 35 (La. App. 3 Cir. 1993), held that a defendant who agreed to and paid an additur retained the right to appeal damages.

This interpretation is supported by a 1989 comment accompanying the reenactment of La. Code Civ. P. art. 1814. According to comment (b), the article’s purpose is to “serve[ ] judicial efficiency by allowing the parties to avoid a possibly unnecessary new trial and then to seek appellate review of the correctness of the judgment reformed by additur or remittitur.”

Preserving errors in trial court’s reasons for judgment

This tip for bench trials in Louisiana is a no-brainer: If you lose, file a timely request for the trial court’s findings of fact and reasons for judgment. “Timely” means within 10 days after mailing of the notice of final judgment. See La. Code Civ. P. art. 1917(A). In tort cases where more than one person’s fault is at issue, include a request for specific findings concerning who was at fault, whether the person’s fault was a legal cause of the damage, and the degree or percentage of the person’s fault. See La. Code Civ. P. arts. 1917(B) and 1812(C).

The reason you must do this is simple: the court of appeal cannot review the trial court’s reasons for judgment if no reasons for judgment are given. See Liprie v. Liprie, 553 So. 2d 1094, 1096 (La. App. 3 Cir. 1989) (“[I]t is not incumbent on this court to determine the sufficiency of the trial judge’s reasons for judgment, as there was no timely request for findings of fact and reasons for judgment entered by the plaintiff.”). In such cases, the judgment will be presumed to be correct and decided according to law, and you will have the burden of showing otherwise. Karisny v. Sunshine Biscuits, Inc., 215 So. 2d 201, 202 (La. App. 3 Cir. 1968). And if you don’t make a timely request for written reasons, you cannot complain on appeal of the trial court’s failure to give them. See Royal Oldsmobile Co. v. Heisler Props., LLC, 119 So. 3d 84, 90 (La. App. 5 Cir. 2013).

Preserving a challenge to an inconsistent verdict

How does one preserve for appellate review an inconsistency in the jury’s verdict? If you spot the inconsistency before the jury is discharged, raise it immediately so that the trial judge can send the jury back for further deliberations. If you don’t spot the inconsistency until after the jury is discharged, you may still preserve the issue through a timely motion for new trial or for judgment notwithstanding the verdict. See the following cases: