Louisiana Civil Procedure II
Professor Dotson
Spring 2017
APPEALS
Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. A final judgment is appealable in all causes in which appeals are given by law. However, an interlocutory judgment is appealable only when expressly provided by law.
A legal representative may appeal any appealable judgment rendered against him or affecting the property which he is administering.
An appeal cannot be taken by a party who confessed judgment in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.
A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.
DEVOLUTIVE APPEAL
A Devolutive appeal is an appeal which does not suspend the effect or the execution of an appealable order or judgment. It may be taken within 60 days of:
(1) The expiration of the delay for applying for a new trial or JNOV, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or JNOV.
When a Devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed may take a Devolutive appeal therefrom within the above delays allowed or within 10 days of the mailing by the clerk of the notice of the first Devolutive appeal in the case, whichever is later. No security is required for a Devolutive appeal.
2088 Divesting of jurisdiction of trial court: Deposition taking, extend return day, facts, misstatements-etc, appeal of other party, execute devolutive appeals, permit deposits, impose penalties or dismiss appeals-cost, & set & tax costs and EW fees.
All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.
SUSPENSIVE APPEAL
A Suspensive appeal is an appeal that suspends the effect or the execution of an appealable order or judgment. It may be taken, and the security furnished, only within 30 days of:
(1) The expiration of the delay for applying for a new trial or JNOV, if no application has been filed timely, or
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or JNOV.
Whenever one or more parties file motions for a new trial or for JNOV, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.
An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or JNOV. The order becomes effective upon the denial of such motions. Further, the time within which to take a suspensive or devolutive appeal is interrupted for all parties upon the filing of a notice of removal in a district court, and commences anew on the date the proceeding is remanded.
The security for a suspensive appeal is determined by the following rules:
(1) When the judgment is for a sum of money, the amount of the security shall be equal to the amount of the judgment, including interest, exclusive of costs. However, in many cases where the amount of the judgment exceeds $150 million dollars, the trial court may fix the security in an amount sufficient to protect the rights of the judgment creditor while at the same time preserving the favored status of appeals in LA. The time for taking a suspensive appeal shall be interrupted for judgments until the trial court fixes the amount of the security and commences anew on the date the security is fixed.
When the judgment distributes a fund in custodia legis, only security sufficient to secure the payment of cost is required.
In all other cases, the security shall be fixed by the trial court at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delays.
Where the party seeking to appeal from a judgment for a sum of money is aggrieved by the amount of the security fixed, he may seek supervisory writs to review the appropriateness of the amount. The application for supervisory writs shall be heard by the court of appeal on a propriety basis. The time for taking a suspensive appeal shall be interrupted until the appellate court acts on the supervisory writs and commences anew on the date the action is taken.
A suspensive appeal bond shall provide that it is furnished as security that the appellant will prosecute his appeal, that any judgement against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.
PROCEDURE FOR APPEALING
An appeal is taken by obtaining an order within the delay allowed from the court which rendered the judgment. An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished. When the order is granted, the clerk of court shall mail a notice of appeal to all parties. (Failure to does not affect the validity of appeal)
The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension.
Immediately after the order of appeal has been granted, the clerk of the trial court shall estimate the cost of the preparation of the record on appeal, including the court reporter fee, and appellate court filing fee. The clerk shall send notic
exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary. In such cases the clerk shall prepare the record as directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings and documents filed in the trial court.
Depositions may be attached, but no more than 4 pages of deposition testimony per page or in any electronic format approved by the court.
An assignment of error is not necessary in any appeal. Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.
A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case, and the parties may agree to a narrative of the facts. However, if the testimony has not been taken down the appellant must request the other parties to join with him in a written and signed narrative of the facts. In cases of disagreement or of refusal to join in it, before the lodging of the record in the appellate court, the judge shall make a conclusive written narrative of the facts.
A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by order of the appellate court.
An appellee does not have to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer, stating the relief demanded, within 15 days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal. A party who does not seek modification, revision, or reversal of a judgment may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.
