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 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:
- Lambert Gravel Co. v. Parish of West Feliciana, 2015-1225, pp. 9–10 (La. App. 1 Cir. 9/20/16), 234 So. 3d 889, 895–96.
- Gilchrist Constr. Co. v. State, DOTD, 2013-2101, p. 7 (La. App. 1 Cir. 3/9/15), 166 So. 3d 1045, 1051.
- Parish Nat'l Bank v. Wilks, 2004-1439, p. 4 n. 6 (La. App. 1 Cir. 8/3/05), 923 So. 2d 8, 11 n. 6 (citing several cases).
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.
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:
- Granted a writ application on the merits;
- Dismissed an appeal; or
- 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.
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).
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.
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.
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).
Here’s an interesting issue that I came across today. The Federal Arbitration Act includes a provision allowing an immediate appeal of an order refusing to enforce an arbitration clause. See 9 U.S.C. § 16(a)(1). But suppose that a case governed by the FAA is in a Louisiana state court. Under La. Code Civ. P. art. 2083, an interlocutory judgment cannot be appealed unless an appeal is “expressly provided by law.” Is a Louisiana trial court’s order denying arbitration appealable to a Louisiana court of appeal. In at least two circuits (the Fourth and the Fifth), the answer is “no.” Despite the FAA, a party to a Louisiana case seeking appellate review of an order denying arbitration must apply for a supervisory writ. See Saavedra v. Dealmaker Developments, 2008-1239 (La. App. 4 Cir. 3/18/09), 8 So. 3d 758, 761–62; and Allen v. Valero Energy Corp., 06-726, pp. 3–4 (La. App. 5 Cir. 1/9/07), 951 So. 2d 370, 371–72.
Usually, an appellant taking a devolutive appeal does not have to post an appeal bond. See La. Code Civ. P. art. 2124(A). But there’s an exception to this rule: in a worker’s compensation case, an employer appealing an award of benefits must post a bond “guaranteeing that the employer will pay the amount of the award,” plus interest and costs. when the worker’s compensation judge has awarded benefits to the employee. La. R.S. 23:1310.5(C). This rule applies to both suspensive appeals and devolutive appeals. See Coolidge v. Butler, 16-937 (La. App. 3 Cir. 11/22/17).
Another procedural quirk under R.S. 23:1310.5(C): the time to post the bond does not begin to run until the worker’s compensation judge has notified the employer of the bond amount. In Coolidge, the employee moved to dismiss the employer’s appeal for failure to post the bond. The Third Circuit granted the motion. But since the WCJ had failed to set the amount of the bond, the Third Circuit dismissed the appeal as premature, and remanded the case for the WCJ to set the bond amount.
That’s a wrap for this year, folks. I just peaked at the blog archives and was surprised to realize that this blog passed its 5th birthday back in October. Thanks for reading, and best wishes for the New Year.
Plaintiff sues Defendant. Defendant filed a reconventional demand against Plaintiff and a third-party demand against an insurer. The trial court renders summary judgment dismissing Plaintiff’s main demand but reserving Defendant’s reconventional demand and third-party demand. Is the judgment appealable? Yes, according to the Third Circuit in Hester v. Burns Builders, 17-824 (La. App. 3 Cir. 11/29/17). The court reasoned that the judgment is final under La. Code Civ. P. art. 1915(A)(1) and (3) because it dismissed Plaintiff’s principal action in its entirety. It didn’t matter that Plaintiff remained a party in his capacity as a defendant in reconvention.