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Code of Civil Procedure

Book III. Proceedings in Appellate Courts

Title I. Appellate Procedure

Chapter 1. General Dispositions

Art. 2081. Applicability of Title

The provisions of this Title are applicable to all appeals to the supreme court and the courts of appeal, except as otherwise provided by law.

Art. 2082. Definition of appeal

Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.

Art. 2083. Judgments appealable

A.  A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.

B.  In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.

C.  An interlocutory judgment is appealable only when expressly provided by law.

Amended by Acts 1984, No. 59, §1; Acts 1989, No. 173, §1; Acts 2005, No. 205, §1, eff. Jan. 1, 2006.

Art. 2084. Legal representative may appeal

A legal representative may appeal any appealable judgment rendered against him or affecting the property which he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable.

Art. 2085. Limitations on appeals

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.  Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

Art. 2086. Right of third person to appeal

A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.

Art. 2087. Delay for taking devolutive appeal

A.  Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:

(1)  The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.

(2)  The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

B.  When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in Paragraph A of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.

C.  When one or more parties file motions for new trial or for judgment notwithstanding the verdict, the delay periods specified herein shall commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.

D.  An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict.  The order becomes effective upon the denial of such motions.

E.  The time within which to take a devolutive appeal under the provisions of this Article is interrupted for all parties upon the filing of a notice of removal in a district court of the United States, pursuant to the provisions of 28 U.S.C. 1446, and commences anew on the date the proceeding is remanded.

Amended by Acts 1962, No. 92, §1; Acts 1976, No. 201, §1; Acts 1977, No. 174, §1, eff. Jan. 1, 1978; Acts 1987, No. 695, §1; Acts 1995, No. 658, §1; Acts 1997, No. 609, §1; Acts 1997, No. 1056, §1.

Art. 2088. Divesting of jurisdiction of trial court

A.  The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal.  Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:

(1)  Allow the taking of a deposition, as provided in Article 1433;

(2)  Extend the return day of the appeal, as provided in Article 2125;

(3)  Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;

(4)  Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;

(5)  Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;

(6)  Grant an appeal to another party;

(7)  Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;

(8)  Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;

(9)  Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or

(10)  Set and tax costs and expert witness fees.

B.  In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

Amended by Acts 1964, No. 4, §1.  Acts 1968, No. 128, §1.  Acts 1977, No. 175, §1, eff. Jan. 1, 1978.  Acts 1983, No. 126, §1; Acts 2008, No. 658, §1.

 

Art. 2089. Description required of immovable property affected by judgments or decrees

All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.

Chapter 2. Procedure for Appealing

Art. 2121. Method of appealing

An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment.

An order of appeal may be granted on oral motion in open court, on written motion, or on petition.  This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.

When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel.  The failure of the clerk to mail the notice does not affect the validity of the appeal.

Amended by Acts 1961, No. 23, §1; Acts 1976, No. 202, §1.

Art. 2122. Appointment or removal of legal representative not suspended by appeal;  effect of vacating appointment on appeal

A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom.

A judgment rendered on appeal vacating a judgment or order of the trial court appointing a legal representative does not invalidate any of his official acts performed prior to the rendition of the judgment of the appellate court.

Art. 2123. Delay for taking suspensive appeal

A.  Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:

(1)  The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.

(2)  The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

B.  Whenever one or more parties file motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.

C.  An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict.  The order becomes effective upon the denial of such motions.

D.  The time within which to take a suspensive appeal under the provisions of this Article is interrupted for all parties upon the filing of a notice of removal in a district court of the United States, pursuant to the provisions of 28 U.S.C. 1446, and commences anew on the date the proceeding is remanded.

Amended by Acts 1974, No. 129, §1; Acts 1987, No. 695, §1; Acts 1995, No. 658, §1; Acts 1997, No. 609, §1; Acts 1997, No. 1056, §1.

Art. 2124. Security to be furnished for an appeal

A.  No security is required for a devolutive appeal.

B.  The security to be furnished for a suspensive appeal is determined in accordance with the following rules:

(1)  When the judgment is for a sum of money, the amount of the security shall be equal to the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs.

(a)  However, in all cases, except litigation related to the Tobacco Master Settlement Agreement, or any litigation where the state is a judgment creditor, where the amount of the judgment exceeds one hundred fifty million dollars, the trial court, upon motion and after a hearing, may, in the exercise of its broad discretion, fix the security in an amount sufficient to protect the rights of the judgment creditor while at the same time preserving the favored status of appeals in Louisiana.

(b)  The time for taking the suspensive appeal under Article 2123 shall be interrupted for judgments pursuant to Article 2124(B)(1)(a) until the trial court fixes the amount of the security and commences anew on the date the security is fixed.

(2)  When the judgment distributes a fund in custodia legis, only security sufficient to secure the payment of costs is required.

(3)  In all other cases, the security shall be fixed by the trial court at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delay resulting from the suspension of the execution.

C.  Where the party seeking to appeal from a judgment for a sum of money is aggrieved by the amount of the security fixed by the trial court, the party so aggrieved may seek supervisory writs to review the appropriateness of the determination of the trial court in fixing the security.  The application for supervisory writ shall be heard by the court of appeal on a priority basis.  The time for taking a suspensive appeal under Article 2123 shall be interrupted until the appellate court acts on the supervisory writs to review the determination of the trial court in fixing the security and commences anew on the date the action is taken.

D.  For good cause shown, the trial judge in the case of the appeal of a money judgment to be secured by a surety bond may fix the amount of the security at an amount not to exceed one hundred fifty percent of the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs.

E.  A suspensive appeal bond shall provide, in substance, that it is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.

Amended by Acts 1977, No. 176, §1, eff. Jan. 1, 1978; Acts 1988, No. 444, §1, eff. Jan. 1, 1989; Acts 1989, No. 307, §2; Acts 2001, No. 450, §1, eff. June 19, 2001.

{{NOTE:  SEE ACTS 1988, NO. 444, §2.}}

Art. 2125. Return day

The return day of the appeal shall be thirty days from the date estimated costs are paid if there is no testimony to be transcribed and lodged with the record and forty-five days from the date such costs are paid if there is testimony to be transcribed, unless the trial judge fixes a lesser period.  The trial court may grant only one extension of the return day and such extension shall not be more than thirty days.  A copy of the extension shall be filed with the appellate court.  Subsequent extensions of the return day may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in Article 2127.2.

Amended by Acts 1976, No. 426, §2; Acts 1977, No. 177, §1, eff. Jan. 1, 1978.  Acts 1984, No. 937, §1.

Art. 2125.1. Notice of extension of return day granted by clerk of trial court

When a subsequent extension of the return day is granted by the appellate court in accordance with the provisions of Article 2125, notice thereof shall be given by mail by the clerk of the trial court to counsel of record of all parties, and to parties not represented by counsel.  The failure of the clerk of the trial court to mail such notice does not affect the validity of the appeal, nor does any error or defect that is not imputable to the appellant affect the validity of the appeal.

Added by Acts 1976, No. 708, §1.

Art. 2126. Payment of costs

A.  The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court.  The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.

B.  Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk.  The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.

C.  The appellant may question the excessiveness of the estimated costs by filing a written application for reduction in the trial court within the first twenty-day time limit, and the trial court may order reduction of the estimate upon proper showing.  If an application for reduction has been timely filed, the appellant shall have twenty days to pay the costs beginning from the date of the action by the trial court on application for reduction.

D.  After the preparation of the record on appeal has been completed, the clerk of the trial court shall, as the situation may require, either refund to the appellant the difference between the estimated costs and the actual costs if the estimated costs exceed the actual costs, or send a notice by certified mail to the appellant of the amount of additional costs due, if the actual costs exceed the estimated costs.  If the payment of additional costs is required, the appellant shall pay the amount of additional costs within twenty days of the mailing of the notice.

E.  If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:

(1)  Enter a formal order of dismissal on the grounds of abandonment; or

(2)  Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.

F.  If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.

Amended by Acts 1976, No. 708, §2; Acts 1977, No. 198, §2, eff. Jan. 1, 1978; Acts 1978, No. 449, §1, eff. Jan. 1, 1979; Acts 1984, No. 937, §1; Acts 1995, No. 105, §1.

Art. 2127. Record on appeal;  preparation

The clerk of the trial court shall have the duty of preparing the record on appeal.  He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof.  Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal.

Amended by Acts 1977, No. 178, §1, eff. Jan. 1, 1978.  Acts 1984, No. 937, §1.

Art. 2127.1. Same;  certified and dated

A.  All records and supplemental records prepared for filing in any appellate court shall be certified and dated by the clerk upon completion.  The certification shall include the date any transcript was received for inclusion in the record.

B.  All transcripts or parts thereof completed for inclusion in the record shall be dated and certified by the court reporter who prepares them.  The date of certification by the court reporter shall be the date on which the transcript was concluded and furnished to the clerk for inclusion in the record.

Amended by Acts 1984, No. 528, §3.

Art. 2127.2. Same;  preparation and delivery of transcript

A.  Except as provided in Paragraph B of this Article, each court reporter assigned to prepare any transcript designated to be transcribed and necessary to complete the record shall deliver the transcript to the clerk of the trial court with the duty of preparing the record for appeal no later than five days before the return day.

B.  Whenever the court reporter cannot deliver the transcript to the clerk of the trial court by the date required in Paragraph A, the reporter shall draft and file a request for an extension of the return day with the trial court or court of appeal as provided by law.  Whenever a court reporter has not delivered a transcript by the fifth day prior to the return day, the clerk of the trial court shall file a certificate with the court of appeal advising that the record is ready for lodging except for the lack of delivery of the transcript.  In such certificate the clerk shall include the names and addresses of each court reporter who has failed to deliver a transcript, the date estimated costs were paid, and whether any of the named court reporters have requested an extension of the return day.

C.  Upon the request of the court of appeal when the transcript has not been delivered to the clerk of court but the record is otherwise ready for lodging, the record shall be lodged.  The clerk of the trial court shall include with the record a certificate stating the names and addresses of each court reporter who is required to prepare and deliver a transcript of the case and a statement of the date on which estimated costs and, if relevant, additional costs were paid.  Thereafter, the court of appeal may issue appropriate orders to any named court reporter to expedite preparation and delivery of any necessary transcripts.

Added by Acts 1984, No. 937, §1.  Amended by Acts 1997, No. 409, §1.

Art. 2127.3. Same;  contempt

The failure of the court reporter to file the transcript with the clerk no later than five days before the return date or any extension thereof shall subject such reporter to prosecution for contempt of court.  Such contempt charges may be initiated by the trial judge or by the court of appeal on the court's own motion or on the motion of any party.

Amended by Act 1984, No. 525, §1; Acts 1997, No. 409, §1.

Art. 2128. Same;  determination of content

The form and content of the record on appeal shall be in accordance with the rules of the appellate court, except as provided in the constitution and as provided in Article 2128.1.  However, within three days, exclusive of holidays, after taking the appeal the appellant may designate in a writing filed with the trial court such portions of the record which he desires to constitute the record on appeal.  Within five days, exclusive of holidays, after service of a copy of this designation on the other party, that party may also designate in a writing filed with the trial court such other portions of the record as he considers necessary.  In such cases the clerk shall prepare the record on appeal as so directed, but a party or the trial court may cause to be filed thereafter any omitted portion of the record as a supplemental record. When no designation is made, the record shall be a transcript of all the proceedings as well as all documents filed in the trial court.

Acts 2012, No. 171, §1.

Art. 2128.1. Depositions

Depositions made a part of the record on appeal may be attached in a reduced format consisting of no more than four pages of deposition testimony per physical page or in any electronic format approved by the court.

Acts 2012, No. 171, §1.

Art. 2129. Assignment of errors unnecessary;  exception

An assignment of errors is not necessary in any appeal.  Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.

Art. 2130. Record on appeal;  statement of facts

A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case.  The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.

Art. 2131. Same;  narrative of facts

If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

Art. 2132. Same;  correction

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court.  All other questions as to the content and form of the record shall be presented to the appellate court.

Art. 2133. Answer of appellee;  when necessary

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 day or the lodging of the record whichever is later.  The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.  Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court.  If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee's action.

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.

Amended by Acts 1968, No. 129, §1; Acts 1970, No. 474, §1; Acts 1989, No. 121, §1.

Chapter 3. Procedure in Appellate Court

Art. 2161. Dismissal for irregularities

An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record.  An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant.  Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.

Amended by Acts 1972, No. 531 §1.

Art. 2162. Dismissal by consent of parties, or because of lack of jurisdiction or right to appeal, or abandonment;  transfer

An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.

If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe.  If an appeal is transferred to the supreme court in error, the supreme court may transfer or retransfer it to the proper court.

Art. 2163. Peremptory exception filed in appellate court;  remand if prescription pleaded

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.

If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

Art. 2164. Scope of appeal and action to be taken;  costs

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.  The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

Acts 2010, No. 184, §1.

Art. 2164.1. Assignment of appellate panels

            The provisions of R.S. 13:319 shall be applicable to assignment of appellate panels.

            Acts 2018, No. 658, §2.

Art. 2164.1. Assignment of appellate panels

            The provisions of R.S. 13:319 shall be applicable to assignment of appellate panels.

            Acts 2018, No. 658, §2.

Art. 2166. Court of appeal judgment rehearing;  finality;  stay

A.  Within fourteen days of the transmission of the notice of the judgment of the court of appeal, a party may apply to the court of appeal for a rehearing.  Within thirty days of the transmission of the notice of the judgment of the court of appeal, a party may apply to the supreme court for a writ of certiorari.  The judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certiorari is timely filed.

B.  When any party files a timely application to the court of appeal for a rehearing, the time within which any other party may apply to the supreme court for a writ of certiorari shall be extended until thirty days of the transmission of the notice of a denial of rehearing.

C.  When a timely application for rehearing has been filed in the court of appeal and the court of appeal denies the application, the judgment becomes final and definitive unless an application for writ of certiorari to the supreme court is filed within thirty days of the transmission of the notice of a denial of rehearing.

D.  When a party files a timely application for a writ of certiorari to the supreme court within the delays provided in this Article, any other party may also apply for certiorari to the supreme court within thirty days of the transmission of the notice of judgment of the court of appeal or within ten days of the transmission by the supreme court clerk of the notice of first application for certiorari in the case, whichever is later.

E.  When an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive after a delay of five days, exclusive of legal holidays, commencing to run on the day after the clerk has mailed the denial by the supreme court of the application for certiorari.  The supreme court may stay the execution of the judgment of the court of appeal pending a timely application for certiorari or an appeal to the United States Supreme Court.

F.  For the purposes of this Article, "transmission of the notice" means the sending of the notice via the United States Postal Service, electronic mail, or facsimile.

Acts 1983, No. 451, §2; Acts 2001, No. 587, §1; Acts 2012, No. 290, §1, eff. Jan. 1, 2013; Acts 2012, No. 741, §1.

Art. 2167. Supreme court judgment rehearing;  finality;  stay

A.  Within fourteen days of the transmission of the notice of judgment in the supreme court, a party may apply to the court for a rehearing.

B.  A judgment of the supreme court becomes final and definitive when the delay for application for rehearing has expired and no timely application therefor has been made.

C.  When an application for rehearing has been applied for timely, a judgment of the supreme court becomes final and definitive when the application is denied.  The supreme court may stay the execution of the judgment pending a timely application for certiorari or an appeal to the United States Supreme Court.

D.  For the purposes of this Article, "transmission of the notice" means the sending of the notice via the United States Postal Service, electronic mail, or facsimile.

Amended by Acts 1977, No. 180, §1, eff. Jan. 1, 1978; Acts 1982, No. 163, §1; Acts 2012, No. 290, §1, eff. Jan. 1, 2013.

 

Art. 2168. Posting of unpublished opinions;  citation

A.  The unpublished opinions of the supreme court and the courts of appeal shall be posted by such courts on the Internet websites of such courts.

B.  Opinions posted as required in this Article may be cited as authority and, if cited, shall be cited by use of the case name and number assigned by the posting court.

Acts 2006, No. 644, §1.

Title II. Supervisory Procedure

Art. 2201. Supervisory writs

Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.