Appellate Procedure

Question 1

What is an Appealable Judgment?

Answer 1

There are 3 types of appealable judgments:
A final judgment after hearing or default;
A judgment reformed in accordance with an additur or remittitur
An interlocutory judgment that is expressly provided for appeal or law.

Question 2

Who has the right to Appeal?

Answer 2

The parties to the action;
Any person who could have intervened in the trial;
They would need to demonstrate a sufficient interest in the judgment
Legal representatives such as curators, tutors, administrators and executors;
Once the appeal has been perfected, the trial court is divested of jurisdiction over all matter under appellate review.

Question 3

Jurisdiction on Appeal

Answer 3

Courts of Appeal:
Civil Actions - most have an automatic right to appeal
Family and juvenile matters
Exception: If a state or ordinance has been unconstitutional. It may be appealed directly to the Louisiana Supreme Court.

Louisiana Supreme Court
For the most part, appellate jurisdiction is discretionary
A statute or ordinance has been declared unconstitutional
A defendants conviction in a death penalty case.

Question 4

Writ of Certiorari to the Supreme Court

Answer 4

A writ of certiorari is discretionary
Factors which the Court may consider are:
If there is a court of appeal decision that conflicts with a decision of another circuit court ;
If the case involves and unresolved issue of law.
To overrule or modify a controlling precedent

Question 5

Certified questions to the Supreme Court

Answer 5

The US Supreme Court or any of US Circuit Court may certify a question of LA law to the LA Supreme Court
Typically this occurs when
There are questions of Louisiana law that will determine the outcome of the case, independent of other issues in the case and,
There is no clear controlling Louisiana precedent

Question 6

Procedure for Appealing

Answer 6

Two types of appeals in LA: Devolutive and Suspensive

Question 7

Devolutive

Answer 7

Must be taken in 60 days from either the delay for filing a motion for new trial or JNOV or the date when the clerk files the notice of judgment denying the JNOV or motion for new trial
If there are more than one motion for new trial or JNOV is filed, then the delays begin to run after the clerk files the Notice of the judgment on the last one.
The appeal is considered premature if the order

Question 8

Suspensive appeal

Answer 8

It must be taken within 30 days of either the delay for the filing a new motion for new trial or JNOV or the date when the clerk files the notice of judgment denying the JNOV or motion for new trial.
If there are more than one motion for new trial or JNOV filed, then the delays begin to run after the clerk files the Notice of Judgment on theLast one.
If there are more than one motion for new trial

Question 9

Security for a Suspensive appeal:

Answer 9

In order to perfect the Suspensive appeal, the appellant must post Boone or security.
This is to secure the money judgment or any damages resulting from the delay of the judgment
If it is money judgment, the security must equal. The amount of the judgment;
If it is a non-money judgment , the security must be able to satisfy the judgment.

Question 10

Perfecting an appeal

Answer 10

Process begins in the trial court
Prospective appellant must obtain an order of appeal;
The order will give the amount of security needed for a Suspensive appeal and the return date, while is the date the record must be lodged with the appellate court. This will be 30 days from date of payment of costs or 45 days if there is testimony which must be transcribed.
Also, the clerk’s office of the trial court will send a notice of the costs by certified mail to the prospective appellant.

Question 11

Answering an Appeal

Answer 11

The appellee can answer an appeal but it is not required to do so.
If he does do so, he must do so within 15 days from the return date ot the date of the lodging of the record

Question 12

Peremptory exception

Answer 12

Can be filed at anytime prior to final judgment;
If it is an exception of prescription, then the

Question 13

Abandonment of Appeal

Answer 13

Occurs when the parties fail to take any step in the prosecution or defense of the appeal with the time periods set forth.

Question 14

Dismissal of Appeal

Answer 14

Appeal may be dismissed for any number of reasons including
Abandonment- filed at any time
Consent to parties - at any time
Irregulatories, if immutable to the appellant
The motion to dismiss for irregulatiories must be filed 3 days from date of lodging or return date, whichever later.
Lack of jurisdiction - at any time.

Question 15

Standard of Review

Answer 15

Court of Appeal and Supreme Court have authority to review both facts and law in civil matters.
However, great deference is given to the trial court’s factual conclusions. The factual conclusions should not be disturbed unless the trial court’s conclusions are manifestly erroneous.
The conclusions of law, however, are not entitled to any deference and are reviewed de novo.

Question 16

TwoPart Test for the reversal of a factfinder’s determination

Answer 16

The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
The appellate court must further determine that the record establishes ( Manifest Error)

Question 17

What is the Test?

Answer 17

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.
Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.
However, where the documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or impossible on its face. That a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon

Question 18

Rehearing on Appeal

Answer 18

The judgment does not become final until all applications for a reahearing or writs have been considered.
Two options
Seek a rehearing within 14 days or
Take a writ of certiorari within 30 days
If the writ or rehearing is denied or is not applied for, then the judgment becomes final.
You may also ask for a rehearing before LA SC

Question 19

Supervisory Writs

Answer 19

Taken for non-appealable interlocutory judgments;
Process starts at the trial court which sets the return date.
LA Supreme Court has Supervisory jurisdiction over all other state courts.

Question 20

Writ of Fieri Facias

Answer 20

A writ of fieri facias is issued by the clerk of court, directing the sheriff to seize and sell the property of the judgment debtor.
The Steps :
- Seizure
-Proceedings Pending sale
- Judicial Sale
-Adjudication

Question 21

Seizure

Answer 21

Sheriff may seize property to satisfy the judgment for up to one year;
Notice of seizure must be filed in the mortgage records of the parish where the property is situated;

Question 22

Proceedings Pending Sale

Answer 22

Sheriff must advertise the impending sale at least once for movables and twice for immovables;
Judgment debtor can choose the order in which the seized property will be sold;
Seized property must also be appraised prior to sale;

Question 23

Judicial Sale

Answer 23

The property must yield a bid which is least (2/3) of its appraised value;
If the price does not reach 2/3’s of its appraised value; no sale;
At the second auction, the property may be sold for whatever price it brings;
But if the bid price is insufficient to pay the sheriff’s costs plus liens superior to the seizing creditor; the property cannot be sold

Question 24

Garnishment Under Writ of Fieri Facias

Answer 24

This writ is used to seize property belonging to the judgment debtor which is in the possession of third persons, such a s wages, or money in a bank account.
That person, must deliver the property or money to the sheriff.
Clerk of Court issues the writ of fiery facias.
Garnishment interrogatories are served on the garnishee.
-Only 25% of wages are subject to garnishment

Question 25

Effect of garnishee’s failure to answer.

Answer 25

If the garnishee fails to answer within the delay provided by art. 2412, the judgment creditor may proceed by contradictory motion against the garnishee for the amount.

Question 26

Examination of the Judgment Debtor

Answer 26

1. Depose any person who has knowledge of the judgment debtor’s property;
2. Examine the judgment debtor himself to determine his assets
   Ex parte order requiring the debtor to appear in court which requires him to bring all his financial records regarding his property.
   The Court will swear him in and the attorney conducts

Question 27

Revival of Money Judgments

Answer 27

Money judgments have a 10 year presscriptive period in which to be satisfied.
It is not satisfied within the time period, it may be extended by a motion by the creditor or any interested person to revive the judgment.
Also need an affidavit of the holder of the judgment attesting that the judgment has not be satisfied.
No service is required on the debtor.
This motion must be filed before the 10 year has prescribed.

Question 28

Non- Money Judgments

Answer 28

• Writ of Possession
• Writ of Distingas

Question 29

Writ of possession

Answer 29

directs the sheriff to seize and deliver the movable property to the creditor; If immovable property, directs the sheriff to make the debtor vacate the premises.

Question 30

Writ of Distingas

Answer 30

an enforcement mechanism for a judgment that:
Orders the delivery of a thing that the sheriff cannot seize because the defendant has concealed it or removed it from the court’s jurisdiction; or
Orders the defendant to do or refrain from doing something (other than delivery of a thing) and he refuses or fails to comply with the order.
Can get damages, contempt or distrain the defendants property.

Question 31

Specific Performance with the order.

Answer 31

Judge may order the sheriff or someone else to perform the act with the same effect as the recalcitrant party, at his expense.

Question 32

Foreign Judgment or Judgment for Other States

Answer 32

The judgment must be a final Judgment
Court must give “ full faith and credit to judgments obtained in the other states under the Us Constitution
Two options:
Bring an ordinary action against the debtor, asking that the judgment be recognized and made a judgment of the LA court.
Proceed under the Enforcement of Foreign Judgments Act, where a petition is filed with the authenticated copy of the judgment an accompanying affidavit with the debtor’s last known address. The clerk sends notice of the request by certified mail and after 30 days, enforcement of the judgment may begin.

Question 33

Out of Parish Judgments

Answer 33

A final judgment of a LA court may be made executory in any other LA court of competent jurisdiction
Creditor files an ex-parte petition annexing a certified copy of the judgment , praying that it be made executory in this jurisdiction
Routinely signed the court.