What happens when a partially incomplete judgment is appealed?

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.


Answering a constitutional appeal to the LASC

Under La. Const. art. V § 5(D), the Louisiana Supreme Court has appellate jurisdiction when a law or ordinance has been declared unconstitutional. Let’s say that a plaintiff sues to have three statutes declared unconstitutional. The trial court renders a final judgment declaring two of the statutes unconstitutional but the third constitutional. The defendant appeals. Can the plaintiff answer the appeal and ask the Supreme Court to declare the third statute unconstitutional? The answer is “yes.” The case saying so is Louisiana High School Athletic Association v. State, 2012-1471 (La. 1/29/13), 107 So. 3d 583.

Appeal from new trial = appeal from judgment on the merits — sometimes.

A few days ago, the Louisiana Supreme Court saved a litigant who purportedly appealed only from an order denying new trial rather than the judgment that was the subject of a motion for new trial. “While a judgment denying a motion for new trial is an interlocutory order and is normally not appealable,” the Court explained, “when a motion for appeal refers by date to the judgmetn denying a motion for new trial, but the circumstances indicate that the appellant intended to appeal from the final judgment on the merits, the appeal should be maintained as taken from the judgment on the merits.” Williams v. Hosp. Servs. Dist. No. 1 of Tangipahoa Parish, 2018-1386 (La. 12/17/18), — So. 3d —.

That seems simple enough. But as the court of appeal’s decision shows, the case had an extra layer of complication. Two plaintiffs—DePhillips and Williams—each brought similar putative class actions. After the two cases were consolidated, a defendant raised a peremptory exception of prescription. At a hearing in open court, the trial court sustained the exception in both cases. Afterwards, things got complicated.

On the same day, the trial court signed two judgments. While each judgment bore the consolidated caption, the substance of each judgment indicate that each applied to only one case:

  • The “DePhillips judgment,” signed November 16, 2016, sustained the exception as to plaintiff DePhillips, and said that the suit was confined to claims occurring within one year from filing of suit. This judgment contained no decretal language dismissing any claims. Notice of this judgment was mailed on November 17, 2016.
  • The “Williams judgment,” signed the same day as the DePhillips judgment, sustained the exception of prescription as to Wiliams’s claims and dismissed Williams’s claims with prejudice. Notice of this judgment was mailed on November 22, 2016.

Both plaintiffs then filed a motion for new trial, which on its face, sought review of the judgment signed on November 16, 2016, and stated that the clerk mailed notice of the judgment on November 17, 2016. The trial court denied the motion for new trial on January 9, 2017, and signed a written judgment to that effect on January 19, 2017. The plaintiffs then attempted to appeal the judgment rendered on January 9 and signed on January 19.

The court of appeal dismissed the appeal. In its decision, the court recited the rule that, when a motion for appeal refers by date to a judgment denying a new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. But in applying this rule, the court determined that the plaintiffs still appealed the wrong judgment. The reason was that the motion for new trial referred by date to the non-final DePhillips judgment, not the final Williams judgment. DePhillips v. Hosp. Serv. Dist. No. 1 of Tangipahoa Parish, 2017-1423 c/w 2017-1424 (La. App. 1 Cir. 7/18/18), 255 So. 3d 1.

The Louisiana Supreme Court reversed the court of appeal's judgment and reinstated the appeal. Reviewing the same circumstances as the court of appeal, the Supreme Court concluded that the plaintiff appealed “from the only final judgment rendered in this consolidated matter, which was the dismissal of the plaintiff Earnest Williams’ claims.”

The lesson for the rest of us: be careful in writing your motion and order of appeal: make sure that it correctly identifies the judgment you want to appeal, and make sure that the judgment being appealed is a final, appealable judgment.

Vacatur of default judgment not appealable

In a decision rendered last month, the Louisiana Fifth Circuit held that a judgment vacating a default judgment is not a final judgment and therefore cannot be appealed. Russell v. Jones, 18-160 (La. App. 5 Cir. 11/14/18), — So. 3d —, 2018 La. App. LEXIS 2294. While the judgment might have been reviewable under the court of appeal’s supervisory jurisdiction, the plaintiff failed to appeal within the 30-day time to apply for a supervisory writ. 

Can you appeal a denial of summary judgment?

Can you appeal a trial court’s denial of summary judgment? Normally the answer is “no.” The reason is that a denial of summary judgment is an interlocutory judgment, not a final judgment, and is therefore not appealable. See La. Code Civ. P. art. 2083.

But under a line of Louisiana First Circuit cases, there’s an exception to this rule. The exception occurs when the parties file cross-motions for summary judgment, and the trial court grants one motion while denying the other. If the summary judgment granted by the trial court is appealable, then the appellant can also appeal the denial of the cross-motion for summary judgment. This line of cases includes the following:

I don’t recall any cases on this topic from other circuits. If you know of any, please send me an email or leave a comment.

Rehearing from a writ denial?

Under Uniform Rule 2-18.7, a Louisiana court of appeal will not consider an application for rehearing when the court has denied an application for a supervisory writ. The rule states that the court will consider rehearing when the court has done one of the following things:

  1. Granted a writ application on the merits;
  2. Dismissed an appeal; or
  3. Ruled on the merits of an appeal.

Since Rule 2-18.7 doesn’t allow for rehearing following a writ denial, the courts of appeal will either deny or refuse to consider rehearing following a writ denial.

But in a recent decision, the Louisiana Third Circuit may have created an exception to this rule. In Trapp v. Allstate Property & Casualty Insurance Co., 18544 (La. App. 3 Cir. 9/19/18), 2018 WL 4472472, 2018 La. App. LEXIS 1764, 2018 BL 338092, the trial court rendered a partial summary judgment on liability, holding a defendant 100% at fault for an automobile accident. The defendant applied to the Third Circuit for a supervisory writ. According to the Third Circuit’s decision, the court initially denied the writ, but later changed its mind on rehearing:

We initially denied the writ, incorrectly believing that the Defendants-Relators had an adequate remedy on appeal. However, we granted rehearing based on our determination that the partial summary judgment on liability did not constitute an appealable judgment because it was not certified as a final judgment by the trial court pursuant to La. Code Civ. P. art. 1915(B).... Therefore, we will address the merits of the writ.

18-544, p. 1. What gives? According to the prior order granting rehearing, the court originally dismissed the writ application rather than deny it.

I don’t know what to make of this. Usually, “adequate remedy on appeal” is a reason for denying an application, not dismissing it. Perhaps the court deemed the dismissal of a writ application to be analogous to the dismissal of an appeal, and thus considered rehearing under Uniform Rules 4-8 and 4-9. Under Rule 4-8, the rules applicable to appeals fill any gaps in the rules governing writ applications. And under Rule 4-9, the rules governing rehearing in appeals apply to writ applications.

No reasons for judgment? Here’s what you do.

Q. Let’s say that a trial court renders an appealable judgment against your client. You want to appeal, and you want the record to include the trial court’s written findings and reasons for judgment. So you file a timely request for written findings and reasons under La. Code Civ. P. art. 1917, but the trial court fails to issue written reasons. What do you do?

A. “[T]he proper remedy for a trial court’s failure to provide written reasons for judgment, when a timely written request to provide reasons has been filed, is by writ or a motion for remand.” Wooley v. Lucksinger, 2009-0571, p. 75 (La. 4/1/11), 61 So. 3d 507, 570; see also id. n. 160 (collecting cases).

Appealing consolidated cases in federal court

Let’s say two civil actions in federal court are consolidated according to Fed. R. Civ. P. 42(a). A final judgment is entered in one of the consolidated cases but not the other. Is that judgment appealable? Yesterday, the U.S. Supreme Court answered “yes.” See Hall v. Hall, No. 16-1150 (Mar. 27, 2017). The Court reasoned that consolidation does not merge the consolidated cases into one civil action; instead each case retains its identity as a separate civil action.

Dismissal of amended petition not a final judgment

Let’s say a trial court renders judgment on exceptions that dismisses the plaintiff’s amended petition “in its entirety with prejudice at [plaintiff’s] cost.” Is the judgment final and appealable? In a recent decision, the La. First Circuit said, “Nope.” State v. Teva Pharmaceuticals Indus., Ltd., 2017-0448 (La. App. 1 Cir. 2/8/18), 2018 WL 773968, 2018 La. App. LEXIS 224. Why? Because the judgment did not dismiss leftover claims in the original petition.

Not surprisingly, the procedural history of this case is complicated. In its original petition, the state alleged claims under the Louisiana Monopolies Act, the Louisiana Unfair Trade Practices Act, and unjust enrichment. The defendants pleaded some peremptory exceptions. In a judgment signed on June 1, 2016, the trial court sustained most of the exceptions (no right of action, no cause of action), and overruled the exceptions with respect to the state's claim for an injunction under LUTPA. Importantly, the only claim that this judgment dismissed was the unjust-enrichment claim.

The state then filed an amended petition that incorporated by reference the original petition and added some paragraphs. The defendants repleaded their exceptions. In a judgment signed on December 8, 2016, the trial court struck all but three paragraphs of the amended petition, sustained peremptory exceptions as to all claims, and dismissed the amended petition with prejudice. 

On appeal, the First Circuit determined that it lacked appellate jurisdiction because neither the June 1 judgment nor the December 8 judgment was a final, appealable judgment. the June 1 judgment was not final because it dismissed fewer than all of the state’s claims against the defendants. The December 8 judgment was not final because it dismissed only the amended petition; it failed to dismiss the original petition. Therefore, the state’s claims under the LMA and LUTPA remained undismissed.

Most lawyers (including me) would have thought that the December 8 judgment was final and appealable. This decision is something to keep in mind when drafting a judgment intended to sustain peremptory exceptions and dismiss the entire suit—make sure that the judgment explicitly dismisses all claims.

It’s never too late to plead prescription.

Here’s an unusual sequence of events. Plaintiffs filed a petition to nullify a judgment. The defendant pleaded a peremptory exception of prescription. The trial court sustained the exception and dismissed the suit. The court of appeal reversed and remanded for further proceedings. On remand, at the conclusion of trial testimony, the defendant re-urged its exception of prescription. After taking the matter under advisement, the trial court rendered judgment dismissing the plaintiffs’ petition with prejudice without addressing prescription. Plaintiffs appealed. Without answering the appeal, the defendant re-urged its exception of prescription in the court of appeal. Can the court of appeal consider the exception? Yes, says the Louisiana Fourth Circuit. See Loughlin v. United Services Auto. Ass’n, 2017-0109, pp. 13–16 (La. App. 4 Cir. 12/20/17), — So. 3d —. And what’s more, the Loughlin court sustained the exception! Id., p. 21. 

“What about law of the case?” you ask. The Fourth Circuit determined that, in the first appeal, it did not rule on the merits of the exception. Instead, it found that the claim was not prescribed on the face of the petition and there was no evidence to contradict the petition’s allegations. Id., p. 15. Thus, the defendant was free to re-urge the exception in the trial court and (unlike the first time) offer evidence to support the exception.

From there, it was only a tiny step to for the defendant to re-urge the exception on appeal. See La. Code Civ. P. art. 2163 (appellate court may consider peremptory exception raised for first time in that court); see also La. Code Civ. P. art. 2133(B) (party who does not answer appeal may still assert, in support of the trial court’s judgment, any argument supported by the record).