Procedure

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.


New blog feature: Uniform Rules of La. Courts of Appeal

I’ve added a new feature to this blog: the Uniform Rules of Louisiana Courts of Appeal, presented in a format that (I hope) will make it easy to look up a specific rule. You can find a complete set of the Uniform Rules in one PDF document on some of the courts of appeal web sites. But none of the courts’ web sites has the rules in a format where you can look up just one specific rule. You can find my version of the rules by visiting this blog’s home page and looking for the rules on the right side under the heading Resources. Or you can create a direct link for yourself by following this link and bookmarking the page.


Amendments to Fed. Rules of Appellate Procedure

Speaking of rule changes, a few amendments to the Federal Rules of Appellate Procedure went into effect last December 1. Nothing major. FRAP 25(a)(5), on privacy protection, was tweaked to add a provision for appeals in benefits cases from the Railroad Retirement Board. And FRAP 42, on voluntary dismissal, was amended to make it easier to dismiss an appeal on agreement of the parties. To see the amendments in redline, follow this link.


New rules for La. courts of appeal

A reminder: On January 1, a new set of Uniform Rules for the Louisiana Courts of Appeal went into effect. While there were no revolutionary changes, many rules were updated to account for electronic filing (now available in all five circuits) and to abolish obsolete provisions. You can find the new rules on the First, Second, Fourth, and Fifth Circuits’ web sites. For a comparison between the current and prior versions of the Uniform Rules, see this Dec. 16, 2022 blog post.


New forms for LASC writ applications

The Louisiana Supreme Court has updated its forms for the civil writ-application filing sheet and (for expedited writ applications) the civil priority filing sheet. The formats of both have been revised to make them easier to read—no more tiny type. The writ-application filing sheet has a few new questions to look out for. Both forms no longer require mailing addresses or land-line phone numbers; instead they require names, bar roll numbers, email addresses, and cell-phone numbers. The civil priority filing sheet requires the names, email addresses, and cell-phone numbers of the lower court judge and judge’s law clerk. There’s also a fill-in version of the civil priority filing sheet, so no need to fill it out by hand or typewriter anymore.

The new forms became effective December 15, so don’t wait until the end of the year to start using them. Start now.


Coming Jan. 1, 2023: Amendments to Uniform Rules

A few months ago, I wrote a blog post about a comprehensive set of amendments to the Uniform Rules of Louisiana Courts of Appeal to take effect January 1, 2023. As I wrote back then, the amendments appear to be intended to do three things:

  1. to update the rules to account for electronic filing (now available in all five circuits); 
  2. to implement uniformity in certain style choices; and
  3. to abolish rules that have become obsolete.

For my own use, I created a redline document illustrating the amendments, which I’m happy to share with anyone who’s interested. To do that, I copied the current Uniform Rules from the La. Fifth Circuit’s web site and pasted them into a Word document. Starting with that document, I made another document of the rules to take effect on January 1, using the Louisiana Rules of Court pamphlet published by Thomson Reuters (the folks at Westlaw) as a source to manually make an updated version of the Uniform Rules. I then used the compareDocs program to generate a redline document showing the differences between the current version of the rules and the updated version to take effect on January 1.

For anyone who’s interested, here’s a link to a downloadable PDF of the redline. No warranties: the redline is an unofficial document; it’s subject to human error (mine); plus I’m just a user of compareDocs, not its developer. Come January 1, please don’t rely on my work product; instead consult an official and more reliable source for the new Uniform Rules.


Defendant’s right to appeal summary judgment in co-defendant’s favor

Let’s say that Plaintiff sues Defendants A and B, and each defendant pleads the comparative fault of the other defendant. Defendant A moves for and is granted summary judgment, and Plaintiff decided to forgo an appeal. Can Defendant B appeal? This question has divided the Louisiana courts of appeal, with the Fourth Circuit recently holding that Defendant B cannot appeal. Today the Louisiana Supreme Court reversed that judgment and held that Defendant B can appeal, regardless of whether Plaintiff also appeals. Amedee v. Aimbridge Hospitality LLC, 2020-OC-1906 (La. 10/21/22). To hold otherwise, the Court explained, would be patently unjust, as it would deprive Defendant B of the right to assert Defendant A’s fault as an affirmative defense.


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.