Appellate Procedure Flashcards
What is an Appealable Judgment?
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.
Who has the right to Appeal?
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.
Jurisdiction on Appeal
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.
Writ of Certiorari to the Supreme Court
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
Certified questions to the Supreme Court
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
Procedure for Appealing
Two types of appeals in LA: Devolutive and Suspensive
Devolutive
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
Suspensive appeal
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
Security for a Suspensive appeal:
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.
Perfecting an appeal
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.
Answering an Appeal
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
Peremptory exception
Can be filed at anytime prior to final judgment;
If it is an exception of prescription, then the
Abandonment of Appeal
Occurs when the parties fail to take any step in the prosecution or defense of the appeal with the time periods set forth.
Dismissal of Appeal
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.
Standard of Review
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.
TwoPart Test for the reversal of a factfinder’s determination
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)
What is the Test?
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
Rehearing on Appeal
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
Supervisory Writs
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.
Writ of Fieri Facias
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
Seizure
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;
Proceedings Pending Sale
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;
Judicial Sale
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
Garnishment Under Writ of Fieri Facias
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
