Procedure

If you’re counting on fax-filing for timeliness, . . .

. . . you need to make sure that the clerk receives the original document within seven days (excluding holidays) after the fax filing. Otherwise, the fax filing “shall have no force or effect.” La. R.S. 13:850. Timely mailing or sending isn’t enough. The orginal document must be “delivered” to the clerk of court within the seven-day period. La. R.S. 13:850(B). Otherwise, the fax-filing “shall have no force or effect,” and the pleading will be deemed filed on the day the clerk receives the original. La. R.S. 13:850(C).

The first lesson is obvious: When you fax-file a motion or petition for appeal, even when the fax-filing is timely, make sure the original is delivered to the clerk of court within seven days after fax filing. But there’s another way this rule can bite you if you’re not careful.

As we all know, a timely motion for new trial interrupts the time to take an appeal. See La. Code Civ. P. art. 2087(A)(2) (devolutive appeal); id. art. 2123(A)(2) suspensive appeal). If you’re counting on a fax-filed motion for new trial to interrupt the time to take an appeal, you must make sure that the clerk of court received the original motion for new trial within seven days after the fax-filing. Otherwise, the motion for new trial will be deemed filed when the clerk received the original. And if the clerk received the original more than seven days after notice of the adverse judgment, the motion for new trial will be deemed untimely (see La. Code Civ. P. art. 1974), and will not interrupt the appeal time. Which means that the appeal clock will have started ticking when the clerk sent notice of the adverse judgment, not when the clerk sent the later notice of the judgment denying new trial.


LASC: Expedited consideration requires expedited writ application

Starting September 1, if you want the Louisiana Supreme Court expedite its review of your writ application, you’ll need to do your part by filing your writ application with 10 days of the court of appeal’s judgment, not the usual 30 days. This amendment to Rule X § 5(a) takes effect on September 1. A comment to the amending order explains the reason for this change:

Applications requesting expedited review place a considerable burden on the resources of the court and its staff. The court’s ability to address such applications in an orderly fashion can be significantly impaired when applicants elect to wait to until the last day of the thirty-day period following the court of appeal’s disposition to request expedited attention in this court. Although this rule does not change the general thirtyday filing period set forth in La. Code Civ. P. art. 2166, it makes it clear that any request for expedited review must be made promptly. If an application seeking priority review is not filed within at least ten days following the court of appeal’s disposition and the applicant fails to show good cause for the delay, the court retains the discretion to summarily deny the request for priority review and/or impose other sanctions pursuant to La. Code Civ. P. art. 2164.

To read the amending order, follow this link. To read the LASC’s press release announcing the amendment, follow this link.


Timeliness in federal appeal of appealable interlocutory order

A couple of weeks ago, the federal Fifth Circuit issued a judgment dismissing an appeal because of untimeliness. Ueckert v. Guerra, No. 22-40263 (5th Cir. Jue 27, 2022). It’s a cautionary tale for anyone practicing in federal court.

Generally in the federal system, only final judgments are appealable. But there are exceptions to the general rule. The Ueckert case involved one of those exceptions, the one allowing an appeal from denial of a defendant’s motion for summary judgment based on qualified immunity. At a March 2, 2021 hearing, the district court held a hearing of the motion and denied it from the bench. Two days later, a minute entry memorializing the district court’s oral order was entered on the docket. But no separate written judgment per Fed. R. Civ. P. 58 was ever filed.

Apparently the appellant thought that the 30-day time to take an appeal would not start until a Rule 58 judgment was entered. By the time the appellant filed a notice of appeal, 412 days had passed since denial of the summary-judgment motion. That turned out to be too late by 232 days. Under Fed. R. App. P. 4(a)(7)(B), the appellant could have filed a notice of appeal immediately after the orally rendered judgment without waiting for a Rule 58 judgment. And when a Rule 58 judgment is required but is never forthcoming, the 30-day time to file a notice of appeal starts 150 days after entry of the judgment or order on the civil docket. This gave the appellant 180 days after the minute entry to file a notice of appeal. See Fed. R. App. P. 4(a)(7)(a)(ii). By waiting 412 days, the appellant missed the deadline by 232 days.

There are probably a few lessons to draw from this case. One of them is to never assume that you know when the clock starts ticking on your appeal: always look up and re-read the law setting the time limit (in this case, Fed. R. App. P. 4). Another is never to assume that the rules for final judgments apply to interlocutory judgments. Note, for instance, the differences between La. Code Civ. P. arts. 1913 (final judgments) and 1914 (interlocutory judgments). When in doubt, look it up. When not in doubt, look it up anyway. 


Delay in getting a return date for a writ application

Let’s say that you’re applying to a court of appeal for a supervisory writ. You know that, under Uniform Rule 4-3, the return date can’t be more than 30 days after notice of the trial court’s judgment. You also know that your writ application has to include the trial court’s return date order so that the court can determine whether the application is timely. So twenty days after notice of judgment, you file your notice of intent. But for whatever reason, the 30th day arrives without the judge’s having signed the return-date order. What do you do?

There’s a case for this situation: In re Gramercy Plant Explosion at Kaiser, 06-C-555 (La. App. 5 Cir. 7/31/06), 2006 WL 8453927. In Kaiser, the applicant’s counsel* filed the writ application with a conformed copy of the notice of intent and, in the jurisdictional statement, an explanation of the problem with getting the judge to sign the order. Here’s what the court said:

The judge who has been given notice of intention to seek writs shall immediately set a reasonable return date within which the application shall be filed in the appellate court. Uniform Rules-Courts of Appeal, Rule 4-3. However, relator’s timely notice of intention to seek writs was denied by the trial court. When a relator makes a timely and genuine attempt to obtain the judge’s signature on the order for which review is sought, the writ should not be refused. See, City of New Orleans v. Benson, 95-2436 (La.App. 4 Cir. 12/14/95), 665 So.2d 1202. Accordingly, the writ will be considered. 

Note, though, that you must show “a timely and genuine attempt to obtain the judge’s signature” on the return-date order. To do that, you’ll likely need a conformed copy of the notice of intent with proposed return-date order to show that you did your part timely. I’d also suggest filing the notice of intent soon enough that the judge actually has an opportunity to sign the return-date order within the 30-day period. Except for real emergencies, e-filing the notice of intent after 5 p.m. on the 30th day may not qualify as “a timely and genuine attempt to obtain the judge’s signature.”

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*Happened to be me.


New local rules in the La. 2nd Circuit

The Louisiana Second Circuit has a handful of new and amended local rules and that will become effective on June 1.

  • New Local Rule 16 sets an absolute 15-day deadline to a non-emergency writ application. That’s absolute as in “no extensions of time to file a response will be granted.” The new rule comes with the caveat that the court may “may adjudicate the application at any time after receipt, with or without the benefit of a response.”

  • Amended Local Rule 9 requires lawyers to show up for oral argument when oral argument is docketed. To be excused from appearing for oral argument, a lawyer must file a motion to waive oral argument. Failure to appear for oral argument without filing a timely motion to waive oral argument will cost you up to $200.

  • Amended Local Rule 4-1 implements a new schedule of fees charged by the clerk of court. The court’s web site says that the only change is in the numbers of copies required for various filings (generally the original and only one copy now required for some of the listed items).

  • Speaking of numbers of copies, new Local Rule 3-1 requires only an original plus one copy for “[a]ll filings, in appeals or writs ....” That’s if you file on paper. If you file electronically, “that filing will be deemed the original and a duplicate is not required.”

  • Finally, amended Local Rule 2-8 sets certain conditions on lawyers who borrow the record from the clerk of court. Under the amended rule, the exhibits remain at the courthouse—you have to go there to look at the exhibits. You have to return the record before or when you file your brief; the clerk won’t consider your brief filed unless you’ve returned the record. Also, you can’t borrow the record once the case is submitted except to prepare an application for rehearing to the Second Circuit or a writ application to the Louisiana Supreme Court; and then, you can only have the record for five days.

On that last item: it’s usually a good practice to make a copy of the record as soon as you get it, either on paper or scanned to PDF. Once you have your own copy, return the record promptly; don’t wait until your brief is due. That way, you reduce the risk of having your brief deemed untimely; plus you avoid the trouble of having to re-borrow the record for rehearing, LASC writ practice, and (if writs are granted) LASC merits briefing.


Ambiguously dated notice of judgment

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:

Schiff notice of judgment

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. 


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.


Judgment signed by successor judge

With the New Year just getting started, here’s an issue to look out for if the New Year brings a new judge to the case.

On December 3, 2020, a pro tempore judge in a district court presided over a hearing of defendants’ motions for summary judgment and granted both motions. The written judgment was signed on January 5, 2021 by the newly elected successor judge—not the same judge who heard and granted the motions on December 3. The plaintiff appealed.

In its original opinion, the court of appeal dismissed the appeal without prejudice for lack of an appealable judgment. Relying on caselaw interpreting La. Code Civ. P. art. 1911, the court of appeal interpreted Article 1911 to require that a final judgment be signed by the same judge who presided over the case. Since the judgment was not signed by the judge who presided over the summary-judgment hearing, the court of appeal held that it was invalid and unappeable. Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 10/13/21)

The defendants–appellees applied for rehearing. The court of appeal granted rehearing, vacated its earlier judgment, found that the district court’s judgment was valid after all, and went on to decide the merits of the appeal. The defendants argued, and the court of appeal agreed, that La. R.S. 13:4209(B) authorizes a successor judge to sign "a judgment which conforms with the judgment rendered” by the former judge “if the judge who rendered the judgment dies, resigns, or is removed from office, or if his term expires before signing the judgment in the case ....” Payne v. St. Bernard Parish Hosp. Serv. Dist., 2021-CA-0135 (La. App. 4 Cir. 12/1/21). Judge Ledet dissented, citing cases requiring the successor judge to explicitly state that she or he was complying with La. R.S. 13:4209.


Supervisory writs in First Amendment cases

When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.

If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:

This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.

In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977)Mashburn contains the following quotable quotes:

In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]

. . .

Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]

Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.

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* Disclosure: Roppolo was one of my early successes.