Louisiana Civil Appeals

Writ application does not suspend appeal delay

A recent decision by the Louisiana First Circuit provides two lessons:

1. A writ application following denial of a motion for new trial does not suspend the time to take an appeal.
2. The delay to take an appeal starts from denial of new trial, whether that denial comes from the trial court or an appellate court.

Phillips v. Exxon Chem. La., LLC, 2022-CA-1290 (La. App. 1 Cir. 6/23/23), — So.3d —, 2023 WL 4140759. Applying these lessons, the First Circuit dismissed an appeal as untimely. Here’s the Philips timeline:

• May 5 2021: Following a jury trial, the trial court signed a judgment on a defense verdict.
  Plaintiffs then filed a motion for JNOV or new trial.
• July 12, 2021: The trial court signed a judgment denying JNOV but granting a new trial.
  Defendant then applied to the First Circuit for a supervisory writ.
• March 17, 2022: The First Circuit granted a supervisory writ, vacated the trial court’s judgment in part on the new-trial issue, and rendered a judgment denying new trial.
  Plaintiffs then applies to the Louisiana Supreme Court for a supervisory writ to review the court of appeal’s judgment
• June 8, 2022: The LASC denied plaintiffs’ writ application.
• July 5, 2022: Plaintiffs filed a motion in the trial court for devolutive appeal of the May 5, 2021 judgment.

In dismissing the appeal as untimely, the First Circuit cited several cases holding that the filing of a writ application does not suspend running of the delay to take an appeal. The First Circuit held that “the delay for an appeal runs from the denial of the motion for new trial, whether that ruling is by the trial or appellate court, and like an application for supervisory writ, an application for certiorari does not suspend the running of the delay for an appeal.” Phillips, p. 10.

Postscript: Certified questions from federal district courts to the LASC

On June 2, the Louisiana Supreme Court amended Rule XII to allow certified questions from federal district courts. Previously, Rule XII allowed certified questions from only the U.S. Supreme Court and U.S. courts of appeals.

My prior report on the then-proposed amendment is here.

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.]

When can a discovery order be appealed?

Normally, a discovery order is not appealable because it is an interlocutory judgment, not a final judgment. Therefore, the only avenue for review is by application for a supervisory writ. But a recent decision by the Louisiana First Circuit reminds us of an exception to this rule: when the order involves discovery from a non-party to the case, it can be appealed. The rationale is that, as far as the non-party is concerned, the order is a final judgment because it resolves the entire dispute involving the non-party. Hughes v. Capital City Press, LLC d/b/a The Advocate, 2022-1133, p. 4 n. 3 (La. App. 1 Cir. 6/2/23), — So.3d —, 2023 WL 3861840. Other cases from the First, Third, Fourth, and Fifth Circuits say the same thing:

• First Circuit: R.J. Gallagher Co. v. Lent, Inc., 361 So.2d 1231, 1231 (La. App. 1 Cir. 1978); Berard v. American Employers Ins. Co., 246 So.2d 686, 687 (La. App. 1 Cir. 1970).
• Third Circuit: Larriviere v. Howard, 00-186 (La. App. 3 Cir. 10/11/00), 771 So.2d 747, 749–50.
• Fourth Circuit: Green v. Canal Ins. Co., 2022-0384 (La. App. 4 Cir. 11/14/22), 352 So.3d 99, 102; Channelside Servs., LLC v. Chrysochoos Group, Inc., 2015-0064 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 756; St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., 2014-0286 (La. App. 4 Cir. 8/27/14), 147 So.3d 1266, 1266 n. 1.
• Fifth Circuit: Gariepy v. Evans Indus., 06-106 (La. App. 5 Cir. 9/25/07), 968 So.2d 753, 754–55.

Although the appellant in these cases is usually the non-party from whom the discovery is sought, the First Circuit (in Hughes) and the Fourth Circuit (in Cannelside) have applied it to consider appeals by a party seeking discovery from a non-party.

La. 2nd Circuit rule for expedited writ applications

Common sense says that, if you file a writ application seeking expedited consideration, you should file as soon as you can. The longer you take to file, the more of a time crunch you’re imposing on the court of appeal, which the court’s judges won’t appreciate.

Earlier this year, the Louisiana Second Circuit adopted a local rule codifying that bit of common sense. Local Rule 17 requires a writ application seeking expedited consideration to be filed “as soon as possible after the trial court’s ruling, and in no event later than fifteen days from the applicable Time to File provision of U.R.C.A. 4-3, relating to civil and criminal writ applications.” In the accompanying comment, the court explains the rationale for the rule, a rationale applicable to any writ application in any court seeking expedited consideration:

This Court’s ability to address issues raised in writ applications requesting expedited review can be significantly impaired when applicants elect to wait until the last day of the thirty-day period for seeking review to request expedited consideration. Such late-filed requests often create unnecessary emergent circumstances which place a significant burden on this Court.

In adopting this local rule the Second Circuit appears to be following the Louisiana Supreme Court’s example. The LASC has a 10-day rule for writ applications seeking expedited consideration. (See this 10 Aug. 2022 blog post about that.)

Obviously, you shouldn’t antagonize the judges if you want them to look favorably on your writ application. Instead, enhance your ethos by showing the judges that you value their time.

Certified questions from federal district courts to the LASC

The Louisiana Supreme Court is considering an amendment of Rule XII, concerning acceptance of certified questions from federal courts. Currently, the LASC may accept certified questions from the U.S. Supreme Court or any U.S. court of appeals. The proposed amendment would allow the LASC to also accept certified questions from federal district courts. To read or download a copy of the proposed amendment, follow this link.

If you want to comment on the proposed amendment, you have until May 25 to do so. The LASC gives the following instructions for submitting comments:

PLEASE REVIEW THE PROPOSED RULE CHANGE AND SEND YOUR COMMENTS BY MAY 25, 2023, TO:

David Becker
Louisiana Supreme Court
400 Royal Street, Suite 1190
New Orleans, LA 70130

OR EMAIL YOUR COMMENTS TO:  [email protected]

Hat tip to my colleague Taylor Brett for flagging this item.

Let it go

If  your opponent files an appellate brief with offensive language, should you move for sanctions? Probably not. That’s the lesson from a decision rendered last month by the Louisiana First Circuit in Brumfield v. Village of Tangipahoa, 2022-CA-0730 (La. App. 1 Cir. 3/6/23), — So. 3d —.

In an earlier appeal in the case, one of the parties moved the First Circuit to impose sanctions on the other side for filing a brief with offensive language. The First Circuit denied the motion, holding that Uniform Rule 2-12.2(C) does not authorize the court of appeal to impose sanctions, and that any authority to impose sanctions under La. Code Civ. P. art. 863 is limited to the trial court. Brumfield v. Village of Tangipahoa, 2021-CA-0082 (La. App. 1 Cir. 12/20/21), 340 So. 3d 221.

Back in the trial court, the offended party moved for sanctions under art. 863 because of the offensive language in the other side’s appellate brief. The trial court obliged, awarding the moving party $1,500. The First Circuit reversed, holding that the sanction was not authorized by art. 863. The court reasoned that, by its terms, art. 863 applies only to “pleadings,” i.e. petitions, exceptions, written motions, and answers. See La. Code Civ. P. art. 852. Since an appellate brief isn’t a pleading as defined by art. 852, the First Circuit concluded that art. 863 didn’t apply. So the First Circuit reversed and imposed the appeal costs on the party who moved for sanctions. Result: the pursuit of sanctions accomplished nothing except to drag out ancillary litigation and to increase the moving party’s legal expenses.

My suggestion: take note of Brumfield, and use it the next time you have to talk someone down from chasing sanctions against an opponent because of an offensive brief. 

Trial court’s authority to dismiss an appeal for failure to pay costs

Last month, the Louisiana Fifth Circuit rendered a judgment reversing a trial court’s dismissal of an appeal because of the appellant’s failure to pay the appeal costs timely. In re Medical Reviiew Panel for Singleton, 22-CA-285 (La. App. 5 Cir. 3/1/23), — So. 3d —. It includes an informative discussion of purpose and proper use of the trial court’s authority under La. Code Civ. P. art. 2126(E) to dismiss an appeal for failure to pay costs, drawn from Reed v. Columbia/HCA Info. Serv., Inc., 99-1315 (La. App. 5 Cir. 4/25/00), 761 So. 2d 625.

Where to find current LASC rules

Here’s a tip for anyone practicing in the Louisiana Supreme Court: before relying on any LASC rule you find in a printed source, check the LASC’s web site for any updates. I happened to be wandering around the web site today and came across this page of amendments to the LASC’s rules, some of which I missed when they first came out. One example is the amendment to the rules governing amicus participation in oral argument, which became effective last December 6. The lesson here is simple: whenever looking up an LASC rule, look it up on the LASC web site.

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 Circuit, Boudreaux 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.