preserving your right to appeal - adams and reese...

Preserving Your Right to Appeal Louisiana Justice Community Conference

Nov. 3, 2006

presented by: Mark C. Surprenant and Raymond P. Ward

ADAMS AND REESE LLP New Orleans, Louisiana

Copyright © 2006 Raymond P. Ward

Contents

I. General rule ................................................................................................1 II. Jurisdiction .................................................................................................1 III. Venue...........................................................................................................2 IV. Recusal of trial judge ..................................................................................2 V. Pleading.......................................................................................................3

A. Claims.....................................................................................................3 B. Defenses..................................................................................................3

1. Exceptions...........................................................................................3

a. Dilatory and declinatory ...............................................................3 b. Peremptory ....................................................................................5 c. Time of trial and decision of exception .........................................5 d. Peremptory exception in appellate court .....................................6

2. Denials ................................................................................................7 3. Affirmative defenses...........................................................................7

C. Constitutional questions.......................................................................7 D. Motions ..................................................................................................9

IV. Discovery ...................................................................................................10

A. Depositions .........................................................................................10 B. Subpoena of lawyer or accountant ....................................................10

VII. Trial ...........................................................................................................11

A. Grant or denial of trial by jury ..........................................................11

Preserving Your Right to Appeal La. Justice Community Conference Nov. 3, 2006

B. Errors in selecting or drawing the jury..............................................12 C. Challenges to prospective jurors ........................................................12 D. Conduct of trial ...................................................................................13

1. General rule: CCP 1635 ..................................................................13 2. Conduct of trial judge......................................................................13 3. Conduct of opposing counsel ...........................................................14 4. Ex parte contact between judge and opposing counsel ..................16 5. Evidence...........................................................................................17

E. Jury instructions .................................................................................19

1. CCP 1793(C) ....................................................................................19 2. Specific objection required ..............................................................19 3. Blanket objection no good ...............................................................20

F. Jury verdict form.................................................................................21

1. CCP 1793(C) applies to verdict forms too.......................................21 2. Offering an alternative verdict form not sufficient........................22 3. Time to object...................................................................................22 4. Special verdict form.........................................................................23 5. General verdict form .......................................................................23

G. Inconsistent verdict..............................................................................23

VIII. Bench trial ................................................................................................24 IX. Post-trial motions .....................................................................................25

A. JNOV ....................................................................................................25

Preserving Your Right to Appeal La. Justice Community Conference Nov. 3, 2006

B. New trial ...............................................................................................25

X. On appeal ..................................................................................................27

A. Assignments of error? ..........................................................................27 B. Brief of appellant must … ..................................................................27 C. If you represent the appellee … .........................................................28

XI. After appeal: Writ applications to La. Supreme Court ...........................29

A. Must raise issue in court of appeal......................................................29 B. Must include issue in writ application ................................................29 C. How to raise an issue in a writ application.........................................30 D. If you represent the respondent, must you apply for cert.? ...............30

Preserving Your Right to Appeal Page 1 of 32 La. Justice Community Conference Nov. 3, 2006

I. General rule:

A. UR 1-3: “… The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.”

1. Grounds for nullity (e.g. ill practices, no jurisdiction over person) cannot be raise for first time on appeal from ill-gotten judgment. Must be raised initially in trial court in context of action for nullity under CCP 2001 et seq.

a. Phillips v. Space Master Intl., 696 So.2d 64 (La. 5 Cir. 1997) (default judgment obtained through ill practices)

b. Hughes v. Sanders, 847 So.2d 165 (La. 2 Cir. 2003) (insufficiency of service)

c. Sharff v. Tanner, 486 So.2d 1047 (La. 2 Cir. 1986) (improper service)

d. Thompson v. Matthews, 374 So.2d 192 (La. 4 Cir. 1979) (insufficiency of service due to misspelled name)

B. But see CCP 2164: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” See also the proviso at the end of UR 1-3.

C. See also Mosing v. Domas, 830 So.2d 967, 975 n. 3 (La. 2002): “An exception to this general rule exists when the issue can only be argued for the first time on appeal, such as, for example, where the law has changed after the trial court's decision and the new law can be applied retroactively.”

II. Jurisdiction

A. Over the person

1. CCP 6: court acquires jurisdiction over person if defendant waives objection by failing to timely file declinatory exception.

B. Over the subject matter

1. CCP 3: subject-matter jurisdiction cannot be conferred by consent of the parties.


III. Venue.

A. CCP 44: can’t waive venue under Arts. 2006, 2811, 2812, 3941, 3991, 4031 through 4034, and 4542. Otherwise, venue objection waived by failing to timely plead declinatory exception.

IV. Recusal of trial judge

A. CCP 154: two requirements for preserving recusal:

1. Must file motion in trial court.

a. Parker v. Chimneywood Homeowners’ Assn., 866 So.2d 289, 295 (La. 4 Cir. 2003) (where appellant failed to file motion to recuse trial judge, court of appeal lacked jurisdiction to decide whether trial judge was impartial. “Additionally, this Court is appalled that counsel for the Appellants has elected to berate the character of a sitting district court judge. Such action by counsel is inexcusable, and will not be tolerated. Any further inappropriate actions by counsel will subject her to the imposition of sanctions.”).

b. Woodland Ridge Assn. v. Cangelosi, 671 So.2d 508, 512 (La. 1 Cir. 1995): “Woodland Ridge Association also contends that the trial judge should have recused himself from these proceedings because of his alleged personal bias and requests that this court order such recusation. The record before us shows that plaintiff failed to file a written motion, assigning the ground for recusation, either prior to the hearing or prior to judgment, as required by LSA-C.C.P. art. 154. Accordingly, there is nothing presented for our review.”

c. Campbell v. Natl. Union Fire Ins. Co., 647 So.2d 569, 571 (La. 3 Cir. 1994): “Plaintiff did not move for recusal. Since no motion was made, this issue may not be considered on appeal.”

2. Motion must be made before trial or hearing, unless party discovers facts constituting grounds for recusal after trial or hearing, in which case must file motion a.s.a.p. CCP 154.

B. Objection must be timely (i.e. before trial or hearing): Martello v. City of Ferriday, 813 So.2d 467, 474-75 (La. 3 Cir. 2002) (failure to move for recusal before trial judge decided motion to certify class action).

C. Must get a ruling on the motion: Cortes v. Lynch, 846 So.2d 945, 953 (La. 1 Cir. 2003): “The record in the instant case contains no written


motion for recusal. Moreover, the trial court made no ruling concerning recusal. With no motion by the plaintiffs and no ruling by the trial court, there is nothing for this court to review.”

V. Pleading

A. Claims

1. CCP 425: Plaintiff must assert all causes of action arising out of the transaction or occurrence that is the subject of the litigation. (Some domestic matters excepted.

2. RS 13:4231: Preclusive effect of judgment in favor of plaintiff or defendant on any unasserted causes of action arising out of same transaction or occurrence.

B. Defenses

1. Exceptions

a. Dilatory and declinatory

i. Time to plead: CCP 928(A): “prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment.”

(a) Must plead timely or it’s waived. Vardaman v. Airosol Co. 722 So.2d 985, 986 (La. 1998) (failure to plead lack of personal jurisdiction when pleading other exceptions constituted waiver of this exception).

(b) Exception: subject-matter jurisdiction: can’t be waived, therefore can be raised at any time.

(1) CCP 3: “The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties.”

(2) DeHaven v. DeHaven, 412 So.2d 537, 538 (La. 1982): “Generally, declinatory exceptions must be pleaded prior to answer or judgment by default. LSA-C.C.P. art. 928. However, an appellate court has discretion to


consider an exception of lack of jurisdiction over the subject matter filed in that court, because the exception "goes to the core of the validity of a judgment and is not subject to the waiver provisions generally affecting declinatory exceptions." Piper, supra, 288 So.2d at 628. This is in accord with LSA-C.C.P. art. 3 which provides that jurisdiction over the subject matter of an action cannot be conferred by consent of the parties, and judgment by a court lacking such jurisdiction is void.”

ii. Lis pendens: CCP 531: If defendant fails to plead lis pendens timely, “the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.”

iii. Prematurity: If trial court errs by refusing to sustain exception of prematurity, suggest you apply for supervisory writ. Failure to do so may constitute waiver. See Thomas v. Desire Community Housing Corp., 773 So.2d 755, 760-61 (La. 4 Cir. 2000): “By failing to do anything to review the district court's overruling of their exception of prematurity and by subsequently filing a reconventional demand, taking part in trial preparation and participating in several days of trial, defendants acted inconsistently with their known right to arbitration.”

iv. Venue: Same. Failure to apply for supervisory writ may be deemed waiver.

(a) Mousa v. Kasem, 731 So.2d 981, 983 (La. 4 Cir. 1999): “Kasem waived any objection to venue by failing to appeal or apply for supervisory writs from the trial court's denial of his exception of improper venue.”

(b) Hebert v. Mid South Controls & Servs., 688 So.2d 1171, 1176 (La. 3 Cir. 1996): “By not pursuing a review of the trial court's first ruling, Mid South waived any objection to the venue.”

(c) But see Phillips v. Patterson Ins. Co., 704 So.2d 246, 247 (La. 1998): “Even though defendants did not seek supervisory writs after the venue ruling, the trial court's decision on venue was reviewable by the court of appeal


and by this court on appeal after trial on the merits, at least for prescription purposes.”

b. Peremptory

i. Time to plead: CCP 928(B): “at any stage of the proceeding in the trial court prior to a submission of the case for a decision ….”

c. Time of trial and decision of exceptions: CCP 929

i. Dilatory and declinatory exception: in advance of the trial of the case. CCP 929(A).

ii. Peremptory exception.

(a) If pleaded before or in the answer, in advance of trial of the case. CCP 929(A).

(b) If pleaded after answer but before or during trial of the case, then either in advance of trial or at trial. CCP 929(B).

iii. If you plead an exception, you must request a hearing and a ruling. If you don’t, the exception is waived.

(a) LP&L v. City of Houma, 229 So.2d 202, 204 (La. 1 Cir. 1969): “Defendant's declinatory and dilatory exceptions were not passed upon by the trial court…. It is settled law that such exceptions not decided by a trial court are considered abandoned.”

(b) Williams v. Vidrine, 330 So.2d 396, 396-97 (La. 3 Cir. 1976): “At the outset we note that the record in this matter reflects that the defendant filed an exception of 'No cause and/or No Right of Action' which was not ruled on by the trial judge. We consider the exception to have been abandoned.”

(c) Shear v. Shear, 695 So.2d 1026, 1031 (La. 5 Cir. 1997): “Where a party who has filed exceptions in the district court does not insist upon a trial and a ruling on his exceptions, they are deemed waived, and need not be considered by the court on appeal.”


iv. Exception to this rule: when court rules in your favor and dismisses suit on other grounds

(a) CCP 2133(B): appellee who does not seek modification of judgment “may assert, in support of the judgment, any argument supported by the record ….”

(b) Guste v. Hibernia Nat. Bank, 655 So.2d 724, 728 (La. 4 Cir. 1995): “Hibernia filed an exception of no cause of action in the trial court, which was later reurged in brief and in oral argument before this Court. Although Hibernia did not immediately seek review of the trial court's failure to rule on their exception (presumably because the court ruled in its favor on the exception of prescription), the exception is properly before this court in this appeal.”

d. Peremptory exception in court of appeal

i. CCP 2163: “The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.”

(a) Note the word “may.” That means it’s discretionary; court doesn’t have to entertain it. All the more reason to raise timely in trial court.

(1) Gulotta v. Cutshaw, 283 So.2d 482, 491 (La. 1973): La. Supreme Court “has the discretionary power to permit the assertion of peremptory exceptions under C.C.P. 2163 where they have not been previously asserted at a lower level.”

(2) Fontenot v. Chapman, 377 So.2d 492 (La. 3 Cir. 1979): Under Art. 2163, “an appellate court has the right to consider appellee's exception; however, it is not obligated to do so, as clearly appears from the use of the discretionary vesting word "may".”

ii. Must file a pleading: arguing in brief alone is insufficient. e.g.:

(a) Sowers v. Dixie Shell Homes of Am., 762 So.2d 186 (La. 2 Cir. 2000): “Dixie failed to raise the issue of prescription by any means other than post-trial and appellate brief.


Although an exception of prescription may be filed for the first time in an appellate court, it must be presented in a formal pleading prior to the submission of the case for a decision. The peremptory exception of prescription cannot be injected as an issue in the case solely by brief or oral argument.”

(b) Smith v. Jones, 504 So.2d 570, 573 (La. 3 Cir. 1987): “The jurisprudence has been firm and clear on this issue. The peremptory exception of prescription, whether urged at the trial level or on appeal, must be presented in a formal pleading, it cannot be injected into the proceedings by brief or by oral argument.”

2. Denials: CCP 1004: “The answer shall admit or deny the allegations of fact contained in each paragraph of the petition, and all such allegations, other than those as to the amount of damages, are admitted if not denied in the answer.”

3. Affirmative defenses: CCP 1005: “The answer shall set forth affirmatively … any … matter constituting an affirmative defense.”

C. Constitutional issues:

1. General rule: must specifically plead the constitutional issue, must serve the attorney general, and must obtain ruling by district court on the constitutional issue. Authorities:

a. R.S. 13:4448: “Prior to adjudicating the constitutionality of a statute of the state of Louisiana, the courts of appeal and the Supreme Court of Louisiana shall notify the attorney general of the proceeding and afford him an opportunity to be heard. The notice shall be made by certified mail. No judgment shall be rendered without compliance with the provisions of this Section ….”

b. R.S. 49:257(B): “[T]he attorney general, at his discretion, shall represent or supervise the representation of the interests of the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.”

c. CCP 1880: In action for declaratory judgment, “[i]f the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.”


d. Mosing v. Domas, 830 So.2d 967, 975 (La. 2002): “The longstanding jurisprudential rule of law in Louisiana is that litigants must raise constitutional attacks in the trial court, not the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized.”

e. Casino Assn. of La. v. State, 820 So.2d 494, 508 n. 20 (La. 2002): “[B]ecause the trial court specifically did not rule on the allegation that the statute at issue violated the equal protection clause of the Fourteenth Amendment, this Court is without jurisdiction under Article V to rule on this issue on direct appeal.”

f. Boutte v. Jeff. Par. Hosp. Serv. Dist. No. 1, 759 So.2d 45 (La. 2000): “[P]laintiffs did not plead the unconstitutionality of the statutes with specificity in any pleading in the trial court. Nor did they serve the Attorney General as required by law so that the State's interests could be represented. The court of appeal did not address the claims of unconstitutionality because they were not properly raised in the trial court and therefore were not appropriate for appellate review. We decline to address these claims for the same reasons.”

g. Must raise the issue in a pleading, i.e., a petition, an answer, an exception, or a motion. Merely raising it in a brief or memoran-dum is insufficient. Allen v. Carollo, 674 So.2d 283, 290 (La. 1 Cir. 1996): “The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.” Accord, Becnel v. Lafayette Ins. Co., 773 So.2d 247 (La. 4 Cir. 2000).

2. Exceptions to this general rule

a. Mallard Bay Drilling Inc. v. Kennedy, 914 So.2d 533, 541 (La. 2005): “[L]itigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized…. An exception to these general principles exists when the statute applicable to the


specific case becomes effective after the appeal is lodged in the higher court.”

b. Id. n. 4: “The remaining exceptions previously recognized include: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; or (3) when an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue is made to appear as an error patent on the face of the record.”

c. Unwired Telecom Corp. v. Par. of Calcasieu, 903 So.2d 392, 399 n. 5 (La. 2005) (same exceptions as Mallard Bay).

D. Motions

1. Failure to object to affidavit offered in support of motion for summary judgment constitutes waiver of defect.

a. Barnes v. Sun Oil Co., 362 So.2d 761, 763 (La.1978): Contrary to CCP 967(A), affidavit failed to show affirmatively that affiant had personal knowledge of matters testified to. “However, the argument that the supporting affidavit should have been disregarded was made for the first time on appeal. The record does not disclose that the plaintiffs filed a motion to strike or otherwise objected to the affidavit. Since it is entirely possible that the affidavit by the production manager could have been made on personal knowledge, we consider the inadequacy of the affidavit to be a formal defect which is deemed to be waived and conclude that the trial court properly considered it in ruling on the summary judgment motion.”

b. Morgan City Bank & Trust v. Jambois O & M Mach. Shhop, 345 So.2d 525, 526-27 (La. 1 Cir. 1977): Plaintiff questions the propriety of our consideration of defendant's affidavits, since the record does not reveal that they were served on it. We note that the affidavits were considered by the trial judge without any objection from plaintiff, and it is now too late to raise that issue.”

2. Must seek hearing of motion; otherwise motion is waived. See Smith v. Arcadian Corp., 657 So.2d 464, 466 (La. 3 Cir. 1995) (failure to ask for hearing of motion to continue summary-judgment hearing constituted waiver of motion).


VI. Discovery

A. Depositions

1. CCP 1443(B): “All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition.”

2. CCP 1443(D): “Unless otherwise stipulated or as provided in Article 1455, objections are considered reserved until trial or other use of the deposition.”

3. CCP 1455:

a. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection … might have been obviated or removed if presented at that time.”

b. Objections to errors, irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of the parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonably made at the taking of the deposition.

4. CCP 1456: Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepare, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Articles 1437 through 1449 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.”

B. Subpoena of lawyer or accountant (CE 507, 508, 516, 517): generally: objection for failure to jump through procedural hoops waived by failure to object timely.


VII. Trial

A. Grant or denial of trial by jury

1. Must apply immediately for supervisory writ. Cannot wait until verdict and then decide whether to raise as issue on appeal.

a. Error in granting jury trial:

i. Windham v. Security Ins. Co. of Hartford, 337 So.2d 577, 579 (La. 4 Cir.1976): “In the interest of judicial economy and fairness, we cannot allow the appellant to abide by the judgment dismissing the motion, try the case to the jury and then, after an adverse verdict and judgment, complain it should not have been tried to a jury. If the bank wished to complain about the ruling allowing jury trial, it should have done so prior to trial either by appeal or by an application for writs. Accordingly, we hold appellant has either acquiesced in that ruling or has effectively waived its right to so complain.”

ii. Turner v. Regional Transit Authority, 498 So.2d 777, 779 (La. 4 Cir. 1986): “Although the Trial Court was clearly wrong [in denying motion to strike jury], when as in this case, there is ample time to apply for writs of review, we will not vacate the judgment and remand for a new trial. RTA declined to pursue the matter after the Trial Court erred in its ruling. If RTA wished to complain, it should have done so prior to trial either by appeal or by an application for writs.”

b. Error in denying jury trial:

i. State, DOTD v. Williamson, 557 So.2d 731 (La. 2 Cir. 1990): “We conclude, in accordance with the authority discussed above, that a litigant in a civil case, who, absent compelling circumstances, fails to seek supervisory review of a trial court's denial of its request for jury trial, will be deemed to have waived the right to appeal that issue, following a trial on the merits before a judge alone.”

ii. Van Meter Drilling Co. v. Kubelka, 544 So.2d 547, 550 (La. 5 Cir. 1989): “When a defendant fails to raise any objection at the time of trial with regard to the lack of a jury, or seeks supervisory writs on the interlocutory order denying the jury trial and proceeds to present his case before the court, he waives his right to a jury trial.”


iii. Rowe v. New Orleans Public Belt R.R., 539 So.2d 907 (La. 4 Cir. 1989): “A party who neither timely appeals nor seeks supervisory writs as to the ruling below on a demand for a jury trial will not be allowed to raise as error that ruling as the sole grounds for reversing the final judgment on the merits…. Row failed to take an interlocutory appeal or apply for supervisory writs. Any error as to the ruling on the demand for a jury trial comes too late and presents nothing for review.”

iv. Sutton v. Central Gulf Lines, 433 So.2d 888, 892 (La. 5 Cir. 1983): After trial court granted appellee’s motion to strike jury, appellant did not seek supervisory writs from this adverse ruling nor did they raise any objection at the time of the trial to the lack of a jury.” Therefore, “as defendant failed to apply for supervisory writs or raise any other objection whatsoever either prior to or at the time of trial, we hold appellant has acquiesced in the ruling dismissing his jury demand and is precluded from complaining about that ruling now in this appeal.”

B. R.S. 13:3052: “All objections to the manner of selecting or drawing the jury or to any defect or irregularity that can be pleaded against any array or venire must be urged before entering on the trial of the case; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.” For example:

1. Sonier v. LP&L, 293 So.2d 24, 26 (La. 1 Cir. 1974): “In this Court, plaintiff for the first time raises the question of the constitution-ality of manner in which the jury was selected, particularly because of the alleged exclusion of women therefrom. Plaintiff can not now object to the manner in which the jury was constituted because of his failure to object in the court below.”

C. Challenges to prospective jurors

1. For cause (for grounds, see CCP 1765)

a. Time to challenge: CCP 1766(A): “After a juror has been examined as provided in Article 1763 [voir dire], the court may excuse the juror[,] and if the court does not do so, either party may challenge the juror for cause.” CCP 1767: “[U]p to the beginning of the taking of evidence, a juror may be challenged for cause by either side … and the panel completed in ordinary course.”


b. Failure to challenge for cause = waiver of right to challenge juror for cause. Nichols v. U.S. Rentals, 556 So.2d 600, 607 (La. 5 Cir. 1990): “Plaintiffs did not challenge prospective jurors Metcalf, Wilson and O'Flynn for cause at trial. Therefore, he may not raise this issue for the first time on appeal.”

2. Peremptory: CCP 1766

a. Objection to number of peremptory challenges: no objection = waiver

i. Abadie v. Metropolitan Life Ins. Co., 784 So.2d 46, 69 (La. 5 Cir. 2001): “Arguably, … because the liability of the [shipyard] was based on theories different from that of the manufacturers, they are placed in a different posture and thus perhaps they were entitled to additional challenges. However, the [shipyard] did not raise this issue at the trial level or brief it before this court. Consequently, as to them, the issue of inadequate peremptory challenges was waived.”

b. Time to raise peremptory challenge: before jury is accepted and sworn. CCP 1766(C).

D. Conduct of trial.

1. General rule: CCP 1635: “Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.” See also CCP 1636 (when court excludes evidence, it must state the reason for its ruling. “This ruling shall be reviewable on appeal without the necessity of further formality.”)

2. Conduct of trial judge

a. CCP 1791 (judge not to comment in jury’s presence on facts of case or give opinion as to what has been proven or not proven or refuted). If judge breaks this rule, you must object timely or move for mistrial.

i. Wilson v. Virgademo, 258 So.2d 572, 577-58 (La. 4 Cir. 1972): “Appellant seeks exception to the rule by asserting that the


voicing of an objection would have been a vain and useless act in that the trial judge was powerless to counteract the import of his favorable comments on the credibility of the plaintiff and an objection would have only emphasized their improper effect…. [W]e are of the opinion that had appellant felt the statements were so prejudicial that their effect could not be remedied, he should have moved for a mistrial. Having failed to do so, he may not now seek redress before this appellate tribunal…. We also note that no effort was made by counsel for appellants either at that stage of the trial or in conjunction with the trial court's charging of the jury to bring this matter to the attention of the trial court so that the jury could be expressly admonished to disregard the comment.”

ii. Oh v. Allstate Ins. Co., 428 So.2d 1078, 1080 (La. 1 Cir. 1983): “By failing to object to the statement of the trial judge at the time it was made, Oh waived his right to assert the statement as error on this appeal.”

iii. Lapeyrouse v. Barbaree, 836 So.2d 417, 422 (La. 1 Cir. 2002): “[A]lthough La. C.E. art. 614(C) authorizes a party to object to the trial court's questioning of witnesses, counsel for Mr. Barbaree did not object. The failure to object to this testimony thus precludes Mr. Barbaree from raising the issue on appeal.”

iv. State ex rel. J.B. v. J.B. Jr., 811 So.2d 179, 183 (La. 2 Cir. 2002): “Of course, the failure to object to an error in a trial court at the time it is made, including statements of the trial court, constitutes a waiver of the right to complain of the error on appeal.”

v. Bridges v. Allstate Ins. Co., 371 So.2d 347, 348 (La. 4 Cir. 1979): “Though several remarks by the trial judge are now claimed to be prejudicial by able counsel for appellant, no objections were timely made thereto, and, thus, no proper basis for our consideration here exists.”

3. Conduct of opposing counsel

a. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891, 894 (La. 1976): “Plaintiffs' counsel, during the course of his rebuttal argument to the jury, made outright appeals to prejudice against defendant insurer, characterizing it as soulless and devoid of feeling, charging unfairness and oppression in its dealing with


plaintiffs, and even suggesting to the jury that it could punish the insurer through its verdict. We agree with defendants and with the court of appeal that such argument was improper…. We also note that defense counsel made only two objections, the first of which was sustained, to the remarks of plaintiff's counsel. He entered both objections toward the close of the rebuttal argument. Defense counsel's failure to object to several other statements that he alleges were also prejudicial constitutes a waiver of his right to complain of them on appeal.”

b. Duzon v. Stallworth, 866 So.2d 837, 859 (La. 1 Cir. 2002): Plaintiff’s counsel allegedly argued that plaintiff would die if jury did not award him money. “Since the record before us does not reflect that either Cal Dive or Stallworth properly objected to the alleged inflammatory statement, the matter has not been preserved for appeal. We therefore find Cal Dive's assignment of error to be without merit.”

c. Brumfield v. Brumfield, 477 So.2d 1161, 1169 (La. 1 Cir. 1985): “In his closing argument, counsel for plaintiff remarked to the jury that "a lawyer with a briefcase can steal more money than a thousand armies with guns." He went on to say, "... It is true because you are armed with very dangerous knowledge as to how the system works and how things go and how things can be done." He added, "... A lot of times it is done in such a way that that person being taken advantage of doesn't even know anything. He goes away and thinks everything is okay and doesn't even realize it. I think in this case, quite sincerely, that Beau Brumfield took advantage of Rosemary." Defense counsel argues that these remarks were intended to invoke a class prejudice and to "taint" his client.” The court found it unlikely that these remarks affected the verdict. “More importantly, however, counsel raised no objection to the remarks at the time they were made. This constitutes a waiver of the right to complain of them on appeal.”

d. Reggio v. La. Gas Serv. Co., 333 So.2d 395, 401-02 (La. 4 Cir. 1976): “We do not consider the propriety of questions asked on voir dire or the propriety of plaintiffs' opening and closing arguments. No objection was made to the questions or to arguments.… In the absence of objection to allegedly improper questions or argument, the trial court is not afforded the opportunity to prevent or correct the alleged error.”


e. Carver v. Cabiro, 381 So.2d 969, 971-72 (La. 4 Cir. 1980): Plaintiff's first specification of error concerns the remarks made by defendants' counsel in voir dire, opening statement, and closing argument. We have concluded that this specification has no merit; first, because no objections were made during the trial at the time the statements complained of were made ….”

f. Cooke v. Allstate Ins. Co., 635 So.2d 1330, 1333 (La. 4 Cir. 1994): “Allstate contends that in closing arguments plaintiffs' counsel improperly showed the police report, which was not admitted into evidence, to the jury and read a portion of the report which had not been previously read to the jury. However, the record transcript does not contain closing arguments, only a notation prior to the trial judge's instructions to the jury that "there was closing argument by all counsel." In such cases where the record contains neither a transcript nor a narrative of facts agreed to by the parties, there is nothing for appellate review and the trial court's ruling is presumed correct…. In any event, counsel for Allstate apparently did not raise this objection until the jury requested a copy of the police report, stating that "I did not object at the time that the police report was shown to the jury or it was quoted, because I felt it would only tend to place my client in a worse light view of the argument being made." Thus, this objection was waived by Allstate's failure to object contemporaneously…. Accordingly, this assignment of error is without merit.”

g. Fisher v. River Oaks, Ltd., 635 So.2d 1209, 1216-17 (La. 5 Cir. 1994): When counsel went into judge’s chambers for conference, defendant allegedly said to jury, "I think they're out to get me,” and "I think they're out to get me because they are the attorneys for Lorita Peterson, the witness for them, and they lost her case. So they pulled them two in to get me." Comments were not ground for reversal because the comments were not on the record. Also, plaintiff’s counsel asked judge to admonish the jury to disregard the comments. The trial judge did so. “Plaintiffs did not ask for a mistrial or make an objection to the sufficiency of the admonishment. Consequently they have waived any complaints to the remarks made by Cantrell in the hearing of the jury.”

4. Ex parte contact between judge and opposing counse: Zellinger v. Amalgamated Clothing, 683 So.2d 726, 731 (La. 2 Cir. 1996): “[P]laintiff complains that the trial judge conducted an ex parte conference with opposing counsel without the presence of the


plaintiff. However, plaintiff failed to lodge a contemporaneous objection to the alleged meeting at the trial court. Failure to object constitutes a waiver of the right to complain on appeal.”

5. Evidence

a. CE 103 (need timely objection)

i. Failure to object to evidence irrelevant to an issue raised in pleadings can result in amendment of the pleadings

(a) CCP 1154: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleading…. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

(b) Cimo v. National Motor Club of La., 237 So.2d 408 (La. 4 Cir. 1970): Plaintiff offered evidence that “was unquestionably … in conflict with and in material variance from plaintiff's allegations…. An objection during trial to the admission of all evidence in conflict with the pleadings, especially on matters of material substance, would no doubt have been maintained and defendant's rights protected. LSA-C.C.P. art. 1154 effectively disposes of appellant's belated complaint.”

(c) Vicknair v. Vicknair, 284 So.2d 836, 839 (La. 4 Cir. 1973): “We find no merit further in the wife's second contention, i.e., the amount of the reimbursement award exceeded the amount sought in the pleadings. While it is true that evidence was offered to show that a greater amount of separate funds was derived from the sale of separate property and used in the improvement of the community realty than was sought in the pleadings, nevertheless, no objection was made to this testimony. Defendant cannot


now be heard to object to the enlargement of the pleadings.”

b. If alleged error is exclusion of evidence, must proffer

i. CE 103(A)(2) Error may not be predicated on a ruling which … excludes evidence unless a substantial right of the party is affected, and … the substance of the evidence was made known to the court by counsel.

ii. CCP 1636(A): “When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” Proffer can be done in courtroom when jury is absent; or can be done by deposition. Id. Art. 1636(B). Other side then has right to makes its own counter-proffer. Id. Art. 1636(D).

iii. McLean v. Hunter, 495 So.2d 1298, 1305 (La. 1986): “The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony (whatever its nature) is available for appellate review. Without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony. In the case at bar, we have no way of knowing how Dr. Broxson and Dr. Lawrence would have testified in this regard had they been allowed to do so. The court of appeal therefore correctly held that the plaintiff is precluded from complaining of the "exclusion" of Dr. Broxson's and Dr. Lawrence's testimony, inasmuch as she did not proffer that testimony.”

iv. Williams v. East Baton Rouge Parish School Bd., 723 So.2d 1093, 1096 (La. 1 Cir. 1998): “During the course of the trial plaintiff requested to make a proffer of defense attorney's notes, and this request was denied.” Court quoted Art. 1636(A), and continued: “While the language of Louisiana Code of Civil Procedure article 1636(A) is mandatory, "a reversal is not warranted unless the party alleging error shows that the error, when compared to the record in its totality, had a substantial effect on the outcome of [the] case." The content of the defense attorney's notes and his papers were not proffered, and we cannot review the substantial effect of the trial court's refusal to allow counsel


to proffer the excluded evidence. This assignment of error lacks merit.”

c. CE 105 (limiting instructions): “When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Failure to restrict the evidence and instruct the jury shall not constitute error absent a request to do so.”

d. Must get a ruling on objection; otherwise there’s nothing for the appellate court to review.

i. Sudduth v. State, DOTD, 619 So.2d 618, 622-23 (La. 3 Cir. 1993): “In the absence of a timely objection at the time of the offering of Trahan's deposition into evidence at trial and DOTD's failure to pursue a ruling from the trial court on any objections raised in the deposition, we find that DOTD waived any objection it may have.”

e. Experts. Note the distinction between these two objections:

i. Objection to qualification: CE 701

ii. Objection to “helpfulness,” i.e. Daubert: CE 702

E. Jury instructions

1. CCP 1793(C): “A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.”

2. Specific objection required.

a. Boncosky Servs. v. Lampo, 751 So.2d 278, 284 (La. 1 Cir. 1999): CCP 1793(C) “creates a mandatory rule for preserving an objection to a trial court's ruling regarding requested jury instructions. In order to preserve the right to appeal a trial court's refusal to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of his objection. Merely


making an objection, without assigning any reasons therefor, is insufficient.”

b. Osborne v. Ladner, 691 So.2d 1245, 1252 (La. 1 Cir. 1997): Defense counsel offered this objection to jury instructions: “Defendant objects to any charges that it offered that were not given, whatever those were.” The appellate court found “that Ladner's counsel failed to object properly to the allegedly erroneous or confusing instructions in that he failed to state the basis of his objection as required by LSA-C.C.P. art. 1793. By failing to properly object, Ladner forfeited any right to complain on appeal of the trial court's refusal to give her proposed jury charges.”

c. Seal v. State Farm, 816 So.2d 868, 871 (La. 4 Cir. 2002): Counsel gave this objection: “I also want to object to this jury charge that you are about to give in that there was no brackets or screws and in this charge, therefore you can't give a charge that does not at least allow the evidence of the case to match the charge. So I don't know why you're giving that charge…. This is part of this charge that talks about the owner if he got advice from someone else, if he acted on that advice ... And I don't believe and [sic] owner can circumvent or get out of any liability because of any defense alleging he relied on someone else, it was either strictly liable or negligent or not, he can't use that as a defense.” Court held, “Aside from the general objection, it is not clear what counsel is objecting to in reference to the jury charges, and there is no clear relationship between the vague objections made at trial to the ones made in this appeal…. Consequently, Ms. Seal is not entitled to review of the jury instructions and interrogatories as it is procedurally barred.”

3. Blanket objection no good.

a. Luman v. Highlands Ins. Co., 632 So.2d 910, 913-14 (La. 2 Cir. 1994): “A litigant must object to a refusal to give each special charge and state the grounds for each objection…. The failure to specifically object to the trial court's failure to give a proposed instruction precludes review of the omission by an appellate court. Furthermore, a blanket objection to the denial of a requested jury charge without assigning reasons does not comply with the requirement that the party object to the instruction before or immediately after the jury retires in order to assign as error on appeal the giving or failure to give a proposed instruction…. Specific objections and the grounds


therefor are required to allow the trial court a fair opportunity to correct any erroneous or improper charges before the jury deliberates.

b. Vitari v. Lewis, 361 So.2d 476, 479 (La. 4 Cir. 1978): “A blanket objection such as: "I will object to all of the charges that were given." as made by defendant in this case will not suffice.”

c. Le v. Johnston Props., 572 So.2d 1070, 1075 (La. 5 Cir. 1990): Plaintiff’s counsel gave this objection: “We further object to the court's failure to give plaintiff's charges 1, 2, 5, 12, 17, 19 and 20.” The court found that “plaintiffs' counsel's blanket objections to certain jury charges not being given to the jury simply fail to comply with our statutory scheme. Accordingly, we have no authority to address the contention that the trial court erred by failing to give specific jury instructions.”

d. Etcher v. Neumann, 806 So.2d 826, 833-34 (La. 1 Cir. 2001): Defense counsel gave this objection: “Your honor, I would object to the court's failure to give the defendant's jury charge number seven which states that in a matter which involves judgment, if a physician follows the course of action sanctioned by authorities it's equally qualified as opposing views, et cetera.” The court found that defense counsel merely “objected to the trial court's refusal to give Charge 7 and reiterated the charge's contents,” but “did not assign any grounds for the objection. This does not comply with [CCP 1793(C)].”

F. Jury verdict form

1. CCP 1793(C) applies to verdict forms too.

a. Kose v. Cablevision of Shreveport, 755 So.2d 1039, 1052-53 (La. 2 Cir. 2000): “The defendants were given ample opportunity to examine the jury verdict form prior to its submission to the jury and failed to make any objection at that time. Therefore, the defendants have failed to show a plain and fundamental error requiring the relaxation of the contemporaneous objection requirement of La. C.C.P. art. 1793. Without such an objection, the issue has not been properly preserved for consideration on appeal.”

b. Jordan v. Intercontinental Bulk Tank, 621 So.2d 1141, 1155 (La. 1 Cir. 1993): “The defendant cannot now complain of the form of the jury interrogatories unless he objected to them at trial either before or after their submission to the jury. His submission of


alternative interrogatories does not constitute an objection. The objection must be specific and allow the trial judge an opportunity to correct the error. The submission of alternative interrogatories does not by itself alert the trial judge that the interrogatories of the other party are in error. The defendant must object to the specific interrogatory he considers duplicative.

c. Hebert v. Old Republic Ins. Co., 807 So.2d 1114, 1127 (La. 5 Cir. 2002): “It is well settled that a party cannot claim improper jury charges as error where he fails to timely object to the charges. LSA-C.C.P. art. 1793 …. This rule applies to jury interrogatories.”

2. Offering an alternative verdict form not sufficient; must object to the verdict form given to the jury.

a. Jordan v. Intercontinental Bulk Tank, 621 So.2d 1141, 1155 (La. 1 Cir. 1993): Defendant’s “submission of alternative interrogatories does not constitute an objection…. The submission of alternative interrogatories does not by itself alert the trial judge that the interrogatories of the other party are in error. The defendant must object to the specific interrogatory he considers duplicative.”

b. Wisner v. Ill. Central Gulf R.R., 537 So.2d 740, 751 (La. 1 Cir. 1988): [same blurb as Jordan above.]

3. Time to object: before jury retires or immediately after

a. Sledge v. Continental Cas. Co., 639 So.2d 805, 814-15 (La. 2 Cir. 1994): Before the jury retired, no one objected to the jury charges. Twenty minutes after the jury retired, the jury returned with the question of how much plaintiff would receive if he were found 40% negligent. In response, the trial judge reread the special verdict form, said that the court would determine the exact recovery amounts according to the allocations of fault, and that the jury should not concern itself with such calculations. The jury again retired, at which point plaintiff’s counsel objected to the charge. The court held that the objection came too late. “While apparently no appellate decision has addressed the "immediately after" language[in CCP 1793(C)], we conclude that an attorney must, on the record, present any objection to the charge as soon as the jury has left the courtroom to begin its initial deliberations and without any


undue delay. This short interval, while not mandating instantaneous protest, affords the trial judge an opportunity to correct any problems before jurors extensively contemplate the case and possibly undergo further influence through their discussions. In that defendant's delayed complaint does not comply with that requirement, her objection is considered waived.”

4. Special verdict form: CCP 1812

a. Court must give parties reasonable opportunity to object to verdict form. CCP 1812(B).

b. “If the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue omitted unless, before the jury retires, he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding, or if it fails to do so, it shall be presumed to have made a finding in accord with the judgment on the special verdict.” CCP 1812(A).

c. Streeter v. Sears Roebuck & Co., 533 So.2d 54, 60 (La. 3 Cir. 1988): “The record discloses that counsel for defendants did not make an objection to the trial court's proposed verdict form until after the jury retired for deliberation. Thus, by their failure to timely object, counsel for defendants have also waived their right to raise this issue on appeal.”

5. General verdict form: CCP 1813(B). “The court shall inform the parties within a reasonable time prior to their arguments to the jury of the general verdict form and instructions it intends to submit to the jury, and the parties shall be given a reasonable opportunity to make objections.”

G. Inconsistent verdict (CCP 1813(D) and (E))

1. Must make timely objection, giving trial court opportunity to correct the error.

a. Morris v. USAA, 756 So.2d 549, 560 (La. 2 Cir. 2000): “A party claiming an inconsistency in the jury's verdict must first raise the issue at trial; otherwise any objections are waived. La. C.C.P. art. 1793, 1812 …. This is because the trial court has the ability to take immediate remedial action by sending the jury back for further deliberations or ordering a new trial…. Since


Rivoire did not raise this issue in the district court or file a motion for JNOV, he cannot raise it for the first time on appeal.”

b. Metz v. Howard, 631 So.2d 1248, 1250-51 (La. 5 Cir. 1994): “The final issue concerns the jury's ultimate findings, which were that Howard and his friends' actions were substandard conduct, but that this conduct was not a legal cause of the accident. Plaintiff first urges that the answers to these interrogatories were inconsistent, and that this inconsistency should have been resolved in her favor. Whatever the merits of this assertion, plaintiff cannot be heard on this issue because she did not object either at the reading of the verdict or in any post-trial motions in the district court. The trial court, thus, never had an opportunity to take remedial action while the jury was present or otherwise rule on the question, as provided by La. Code Civ. Pro. art. 1813 ….”

2. Note: If you miss change to object to inconsistent verdict, you may be able to salvage the issue by timely motion for new trial. See Daigle v. White, 544 So.2d 1260, 1262 (La. 4 Cir. 1989): “Defendants cite the case of Bourque v. Gulf Marine Transportation, Inc., 480 So.2d 337 (La. App. 3rd Cir.1985), in support of their argument that plaintiff's failure to object to the inconsistencies of the jury verdict at the end of trial precludes him from raising the issue on appeal. However, the Bourque case states that one is precluded from raising that issue on appeal only if he fails to object at the reading of the verdict or afterward in post-trial motions. In this case, plaintiff's post-trial motion for new trial clearly demonstrated his objection to the inconsistencies in the jury verdict. Therefore, plaintiff is not precluded from raising this issue on appeal.”

VIII. Bench trial.

A. CCP 1917: Trial court must give written findings of fact and reasons for judgment if a party requests them within 10 days after signing of judgment.

B. Must request findings of fact and reasons for judgment. If oral reasons are not transcribed, court of appeal can’t review. Karisny v. Sunshine Biscuits, 215 So.2d 201 (La. 3 Cir. 1968): “On appeal, a trial court judgment is presumed to be correct and decided in accordance with the law, with the burden being on the appellant to show otherwise…. A party may protect himself from an unfair operation of this presumption by exercising his right to require the trial court in non-jury cases to give written findings of fact and reasons for judgment…. Having failed


to do so, the plaintiffs-appellants cannot now urge as error an oral reason for judgment not transcribed nor admitted as correct by the opposing counsel.”

C. Court of appeal won’t determine sufficiency of trial judge’s reasons for judgment if no timely request for reasons. Liprie v. Liprie, 553 So.2d 1094, 1095-96 (La. 3 Cir. 1989): “The plaintiff contends that the trial judge erred in not stating what he found to be the assets and liabilities of the community…. We note that as this is not an action to recover damages for injury, death or loss, the second paragraph of the statute is not applicable. Furthermore, it is not incumbent on this court to determine the sufficiency of the trial judge's reasons for judgment, as there was no timely request for findings of fact and reasons for judgment entered by the plaintiff.”

IX. Post-trial motions

A. JNOV: CCP 1811

1. Generally not necessary to preserve “manifest error” review, because standard for granting JNOV is stricter than for appellate reversal on manifest-error grounds.

2. Exception: If error assigned is failure to grant JNOV, then you need to move for JNOV. Dawson v. Mazda Motors of Am., 517 So.2d 283, 286 (La. 1 Cir. 1987): Appellant contends that the trial court erred in failing to grant appellant either a judgment notwithstanding the verdict or a new trial…. Appellant moved for a new trial…, but did not move for a judgment notwithstanding the verdict. This constitutes a waiver of appellant's right to assign such error on appeal.”

3. See also Morris v. USAA, 756 So.2d 549, 560 (La. 2 Cir. 2000) (page 23 above), suggesting that a motion for JNOV might have preserved issue of inconsistent verdict.

B. New trial: CCP 1971 et seq.

1. Generally not necessary to preserve an issue for appeal.

a. Hicks v. Steve R. Reich Inc., 873 So.2d 849, 851 (La. 2 Cir. 2004): “[T]here is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the


reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal.”

b. Grosch v. DeBautte, 203 So.2d 906, 908 (La. 4 Cir. 1967): “With respect to the contention that appellants should have applied for a new trial after the rendition of judgment, all we can say is that we know of no law which makes it necessary as a prerequisite to appealing that the aggrieved litigant apply for a new trial.”

c. If you do bring a motion for new trial, it’s not necessary to raise every issue in the motion that you might raise in your appeal. See Luttrell v. Intl. Paper Co., 511 So.2d 7, 7-8 (La. 3 Cir. 1987): “The mover-appellee, McDougald Brothers, Inc., third party defendant, seeks to dismiss the appeal of the defendant-appellant, International Paper Company (International), insofar as concerns mover, on the ground that International did not question the trial court's judgment on the issue of indemnity in its application for a new trial…. Mover argues that since International did not seek a new trial as to the issue presented in its third party demand, but only sought a new trial on the statutory employer-employee issue, International has limited itself to appealing only as to that issue. We disagree…. Our Code of Civil Procedure does not require the aggrieved party to file an application for new trial before appealing nor is there any authority in our law supporting the proposition that one must raise all issues in a motion for a new trial in order to preserve those issues for review in a subsequently filed appeal.”

2. Exceptions to general rule:

a. Failure to move for new trial after default judgment taken by ill practice. Jenkins v. Tillman, 221 So.2d 895, 898 (La. 1 Cir. 1969). “Defendants have in their brief stated many reasons why we should set aside the judgment of the district court because the same was obtained by what defendants contend were ill practices on the part of counsel for plaintiff. We do not express an opinion as to whether these contentions of defendants are meritorious or not because they are not before us for consideration at this time. These contentions could have been considered by the trial judge if defendants' application for a new trial had been timely filed.” (But note: This merely prevents direct appellate review; it does not prevent an action for nullity. “However, there is still available to defendants a separate action under C.C.P. Art. 2004 to have the judgment of June 25, 1968


set aside if these contentions are in fact supported by proper proof.”)

b. When relief you seek is a new trial: O’Brien v. Johnson, 800 So.2d 64. 68 (La. 4 Cir. 2001): “Mr. O'Brien is seeking a new trial on appeal. However, he did not timely request a new trial from the district court within the seven days after the final judgment of the district court. Therefore, this issue is not appealable due to his failure to comply with the time limitations in which to seek a new trial.”

c. See also Daigle v. White, 544 So.2d 1260, 1262 (La. 4 Cir. 1989) (7.7.2 above), where motion for new trial preserved appellate review of inconsistent verdict.

X. On appeal

A. Assignments of error?

1. UR 1-3: “The Courts of Appeal will review only those issues which were submitted to the trial court and which are contained in the specifications or assignments of error, unless the interest of justice clearly requires otherwise.”

2. CCP 2129: “An assignment of errors is not necessary in any appeal.”

3. CCP 2164: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

4. UR 3-1.1: “Every application for appeal from a final decision of any administrative body shall be filed with the appropriate administrative body in writing as required by law and shall include an assignment of error, which shall set out separately and particularly each error asserted and a designation of the portions of the record desired to be incorporated into the transcript.” Appellee then has 5 days to make counter-designations.

B. Brief of appellant must:

1. “…include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.” UR 2-12.4


2. “All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” Id.

C. If you represent appellee and:

1. If you want judgment modified in your favor, do one of two things:

a. Take a cross-appeal. See CCP 2087(B) for time to do this.

b. Answer the appeal. CCP 2133(A). “An appellee shall not be obliged 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 to the appeal, stating the relief demanded, not later than fifteen days after the return date or the lodging of the record whichever is later.”

c. Dixon v. Mid South Rail Corp., 580 So.2d 438, 445-46 (La. 2 Cir. 1991). Wrongful-death action. Trial-court judgment awarded plaintiff 42% of damages, due to allocation of 58% fault to decedent. Defendant appealed, and plaintiff answered the appeal seeking reduction in decedent’s fault allocation. On rehearing, plaintiff argued that since she was not at fault, she should recover 100% of her own damages. The court held that the argument came too late. “Such a modification of damages in a judgment is substantive and must be specifically sought either by a motion for a new trial in the trial court or by an appeal, or answer to an appeal, of the judgment.”

2. If you’re satisfied with the judgment: CCP 2133(B): “A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, 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.”

a. Diefenthal v. Longue Vue Mgmt. Corp., 561 So.2d 44, 58 (La. 1990): “Plaintiffs alleged in their complaint that Longue Vue's conduct constitutes a nuisance; the trial judge did not address that issue. Because plaintiffs neither appealed the trial court judgment nor answered Longue Vue's appeal, defendants argue plaintiffs waived the right to assert a nuisance claim. This argument is without merit. The trial court granted relief to the plaintiffs on other grounds; they were hence not obliged to answer defendants' appeal since they did not seek to have the


judgment modified, revised or reversed in part. C.C.P. art. 2133. The claim that defendants' activities constitute a nuisance is therefore still viable.”

XI. After appeal: Writ applications to La. Supreme Court

A. Must raise issue in court of appeal to preserve for review by LSC. See Rule 10 § 1(a).

1. Mosing v. Domas, 830 So.2d 967, 976-77 (La. 2002): Travelers appealed, arguing that the amount of punitive damages was excessive. After the court of appeal rendered its decision, Travelers applied for rehearing, and for the first time challenged the punitive-damage award on constitutional grounds, and argued that legal interest on punitive damages should run from the date of judgment, not date of judicial demand. The Supreme Court found that “[t]hese arguments came too late…. While, under the facts of this particular case, Travelers was not required to appeal in order to defend the judgment of the trial court, it did, and in doing so, it sought affirmative relief: a reduction in the amount of the exemplary damage award. Having appealed, Travelers was required to raise all perceived errors in connection with the exemplary damage award (especially errors of alleged constitutional magnitude) before the Court of Appeal in order to preserve those errors for review…. Such a rule, while seemingly harsh, preserves the proper allocation of functions between the lower appellate courts and the Supreme Court by consigning the first appellate review to the court of appeal and preserving to this court discretionary review upon the litigant's petition for certiorari…. The purpose of the rule is thwarted when a litigant, such as Travelers, raises some, but not all, of its arguments on appeal and then, after a less than favorable result, urges the arguments it omitted on certiorari to this court.”

2. Dean v. Southmark Const., 879 So.2d 112, 116 (La. 2004): “We cannot consider contentions raised for the first time in this Court which were not pleaded or raised in the court below and which the lower courts have not addressed.”

B. Must include issue in writ application to preserve it for review by LSC

1. Boudreaux v. State, DOTD, 815 So.2d 7, 11 (La. 2002): “[W]e find the additional questions briefed for oral argument, but not contained in the original writ application, are not properly before us.”


C. To raise an issue in a writ app, include the following items:

1. An assignment of error in the opinion, judgment, or ruling complained of. (Civil writs: LSC Rule 10 § 3(b); criminal writs: id. § 4(b).)

2. A summary of the argument, which should be a succinct but accurate and clear condensation of the argument actually made in the body of the memorandum. (Civil: Rule 10 § 3(c); criminal: id. § 4(c).)

3. An argument of each assignment of error on the facts and law, addressing particularly why the case is appropriate for review under the considerations stated in Rule 10 § 1(a). (Civil: Rule 10 § 3(d); criminal: id. § 4(d).)

D. If you represent respondent, must you apply for cert.? See Roger v. Estate of Moulton, 513 So.2d 1126 (La. 1987).

What happened in Roger: Liberty Mutual was both worker’s compensation insurer and automobile insurer of Roger’s employer, UPS. Roger was involved in an accident (not his fault) and sued the other driver’s insurers; he also sued Liberty Mutual as his alleged UM insurer. Liberty Mutual as WC carrier intervened, seeking reimbursement from liability insurers. In the trial court, the parties disputed whether UPS validly rejected UM coverage. The trial court found no valid rejection of UM, and rendered judgment holding Liberty Mutual liable as UM insurer and rejecting Liberty Mutual’s claim for reimbursement as WC insurer. Liberty Mutual (as both UM and WC) appealed.

The court of appeal held that UPS’s waiver of UM was valid, and did not reach the issue of whether Liberty Mutual as WC was entitled to reimbursement from itself as UM. At this point, Liberty Mutual owed $0.

Roger applied to the Supreme Court for writ of review. Liberty Mutual did not. The Supreme Court granted Roger’s application and ultimately reversed on the issue of UM, reinstating the trial-court judgment finding UM coverage.

Liberty Mutual argued in the Supreme Court that if it were liable as UM, then as WC it should recover reimbursement from itself, in preference to Roger’s claim against Liberty Mutual as UM. The Supreme Court refused to consider this argument. “It is the long standing policy of this court that a judgment will not be amended by


this court to benefit a party who did not apply for certiorari…. Only Donald Roger applied for certiorari. Liberty Mutual as compensation carrier did not seek writs. Having failed to do so, the judgment of the Court of Appeal as to Liberty Mutual’s claim for reimbursement is now final. Accordingly, we need not consider it.” 513 So.2d at 1134.

On rehearing, the Supreme Court re-affirmed its original decision, citing two rules:

1. A party must apply for certiorari if he seeks to change the judgment below or any part of if.

2. A party may, despite his failure to petition for certiorari, defend a judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered, so long as it does not change the judgment.

Applying these principles, the Court reasoned:

The court of appeal judgment declared that there was no uninsured motorist coverage for the accident in question and necessarily rejected all claims dependent thereon. The grounds now urged by Liberty Mutual and UPS plainly call for changes in that decree by: (1) modifying the court of appeal judgment to declare the existence of UM coverage; (2) reviving and recog-nizing the validity of their claims for worker's compensation reimbursement out of the UM insurance funds; and (3) liquidat-ing their claims and declaring Roger's judgment to be partially extinguished by compensation. Far from accepting the court of appeal judgment and arguing in support of it, the theories advanced by Liberty Mutual and UPS call for massive changes inconsistent with the result reached. Since neither of these parties filed an application for certiorari here seeking to alter or vacate the court of appeal judgments, their arguments cannot be entertained.

Superficially it may appear anomalous that a successful litigant in the court of appeal should be under any necessity of applying for certiorari here after a decree which brought him victory. But the judgment may, as here, be comprised of several elements, adverse as well as favorable. If the prevailing party wishes to rely alternatively in this court upon a contention rejected below which would change the court of appeal judgment, he must preserve his rights by an application for certiorari. In the absence of such preservation of the argument, the successful


litigant must be taken to have regarded the grounds upon which he won as so strong that he is content to rely on them alone in the certiorari proceedings. See, e.g., Anthony v. Petroleum Helicopters, Inc., 693 F.2d 495, 498 n. 6 (5th Cir.1982). Although at times criticized, the rule that an appellee or a respondent may not attack the judgment below seems reasonable and desirable in order to prevent surprise and focus the attention of the court and the other party on the issues to be raised and, in the Supreme Court, to aid the court in evaluating whether the grant of certiorari is justified. See R. Stern, When to Cross-Appeal or Cross-Petition--Certainty or Confusion?; 87 Harv. L. Rev. 763 (1973); Note, 51 Harv. L. Rev. 1058 (1938).

513 So.2d at 1137 (on reh’g). Justices Calogero and Lemmon dissented.

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