Appellate Practice

Chaffe McCall’s Appellate Practice Section represents clients at all levels of Louisiana and federal appellate courts, including the United States Supreme Court. The Section’s attorneys not only work closely with fellow litigators within our firm, but also draft appellate briefs and writ applications with other lawyers and firms who have tried cases independently. We consult with trial counsel before and during district court proceedings to assist in formulating strategies and preserving issues in anticipation of possible appellate review later in the case. We likewise appear for amici curiae on critical issues in cases pending on appeal or writ review that affect their industries and interests.

Our Section’s focus on appellate practice offers distinct advantages to our clients:

·     Knowledge: We are fully conversant with the intricacies of appellate jurisdiction, rules, procedures, and standards of review.

·     Objectivity: From our unique perspective as appellate practitioners, we analyze and evaluate trial records objectively, providing a strong complement to trial attorneys in identifying appealable issues and assignments of error.

·     Advocacy: As dedicated legal researchers and writers, we craft, document, and support arguments designed to interest, convince, and persuade appellate judges.

Federal Courts

Our motion, appeal, and writ practice in civil cases encompasses virtually all substantive areas of the law, including commercial litigation, admiralty and maritime, employment, insurance, oil and gas, and products-liability law. We have experience in representing clients on review of both final and interlocutory judgments, including petitions for mandamus, appeals certified under Fed. R. Civ. P. 54(b) and 28 U.S.C. § 1292(b), and matters involving class actions, injunctions, and arbitration motions.

Some examples of our appellate advocacy include the following cases:

 ·    In Smith v. American Family Life Assurance Company of Columbus, 584 F.3d 212 (5th Cir. 2009), we successfully appealed a ruling on cross-motions for summary judgment interpreting an accident insurance policy and secured the dismissal of an action claiming benefits in excess of those already properly paid according to the policy’s terms.
 

·     In Hartz v. Administrators of the Tulane Educational Fund, 275 Fed. Appx. 281 (5th Cir. 2008), a § 1292(b) interlocutory appeal, we obtained a reversal of the district court’s judgment that had denied our client’s motion to dismiss for failure to state a claim in an action alleging sex discrimination and retaliation under Title VII.
 

·     In Dutton v. University Healthcare System, L.L.C., 136 Fed. Appx. 596 (5th Cir. 2005), we won an affirmance of a summary judgment in favor of our client dismissing an action under the Americans with Disabilities Act and also obtained an award of additional attorney’s fees on appeal.

Louisiana State Courts

Louisiana appellate practice significantly differs from that of other jurisdictions, because the state’s appellate courts review law and facts. After finding reversible or manifest error, an appellate court must conduct an independent review of the trial record and, if the record is complete, make findings of fact and render judgment, without remanding the action for a new trial.

Appeal From Final Judgments

We have prosecuted and defended appeals for our clients in all of the state’s five intermediate circuit courts of appeal and in the Louisiana Supreme Court in a variety of cases, including the following representative matters:

·     In Alday v. CSX Transportation, Inc.,  929 So. 2d 1094 (La. App. 4 Cir. 2008), we successfully defended an appeal from an involuntary dismissal in favor of our client in a bench trial under the Federal Employers Liability Act, and also prevailed in opposition to the plaintiff’s application to the Louisiana Supreme Court for a writ of certiorari.  

·     In Galjour v. Bank One Equity Investors-Bidco, Inc., 935 So. 2d 716 (La. App. 4 Cir. 2006), we obtained an affirmance of a judgment denying class certification in a shareholder action alleging breach of fiduciary duty arising out of a merger of two privately held companies.

Appeals From Interlocutory Rulings:  Certification

When a judgment of a Louisiana trial court does not dispose of the entire action, our Appellate Practice Section confers with trial counsel to determine whether the judgment is a partial final judgment (which must be promptly appealed), or an interlocutory judgment (which may be immediately reviewable through a supervisory writ application or subject to review later through a subsequent appeal from a final judgment at the end of the district court proceedings).  The Section also advises whether the judgment can be certified by the district court as an immediately appealable judgment and, if so, whether certification and immediate appeal are strategically preferable to awaiting appellate review after the final disposition of the entire action.

A good example of certifying a judgment for immediate appeal is Kimpton Hotel & Restaurant Group, Inc. and First Orleans Hotel Associates, L.P. v. Liberty Mutual Fire Insurance Co., 974 So. 2d 72 (La. App. 4 Cir. 2007), where we represented the owner of a hotel in New Orleans in a claim for insurance proceeds for property losses caused by Hurricane Katrina. We filed a motion for a partial summary judgment, asking the district court to find that the limit for flood losses was triple what the insurer contended that it was, and the trial court granted the motion. We decided that an immediate appeal of that judgment by the opposing party would be preferable to awaiting an appeal from a final judgment resolving all of the remaining issues after a trial. With the consent of the opposing party, we prepared a joint motion to certify the partial summary judgment as a partial final judgment. Our motion listed five factors required for such a designation and showed that all five were present. The trial court granted the motion, the insurer appealed, and the appellate court affirmed the judgment.

Review of Interlocutory Rulings:  Supervisory Writs

In addition to their jurisdiction in appeals of right, Louisiana’s Courts of Appeal and Supreme Court have broad discretion to exercise their supervisory powers over trial courts. The appellate courts often use this authority to intervene in any stage of a district court proceeding—before, during, or after trial—to review interlocutory rulings. In 2008, for example, 1,530 applications for supervisory writs were filed with Louisiana’s intermediate appellate courts in civil cases (excluding pro se litigants), of which 326—more than a fifth—were granted.

Chaffe McCall’s appellate attorneys have applied for or opposed supervisory writ applications on numerous interlocutory issues, including the right to trial by jury, discovery disputes, privilege questions, stay orders, and denials of exceptions and summary-judgment motions. For example, in a products-liability action arising out of a residential fire, we represented the defendant manufacturer and tried the case before a jury, which brought back a verdict exonerating our client from liability. When the district judge ordered a new trial, we sought writ review of that order, and the Louisiana Fourth Circuit reinstated the verdict in favor of our client. The plaintiffs later filed an appeal from the zero verdict, and the appellate court affirmed the judgment in our client’s favor.

·         In Riverlake New Orleans Properties, LLC v. The City of New Orleans, 08-0842 (La. App. 4 Cir. 2008), we successfully opposed supervisory writ applications in the court of appeal and the supreme court involving the application of the five-year abandonment provision of La. Code Civ. Proc. art. 561(A)(2), as amended in 2007.

Federal and State Courts:  Post-Judgment Practice and Requests for Expedited Relief

We are sometimes first retained as counsel after a district or appellate court has rendered a judgment.  We have the ability and resources to promptly take whatever remedial action is available to protect our client’s interests under pressing deadlines. 

·     In Louisiana state court, for example, we were asked to represent a defendant after the district court had confirmed a default judgment.  We immediately obtained a copy of the record and identified several procedural errors.  We filed an appeal asking that the judgment be reversed, and the parties settled the case while the appeal was pending.

 ·    During a state-court criminal trial, the State issued a subpoena ordering our client to testify as a third-party witness about privileged communications.  We moved to quash the subpoena, and on a Tuesday morning, the district court ruled that the communications were indeed privileged, but that the privilege had been waived by the defendant.  Nonetheless, the court limited the scope of the witness’s testimony about them in order to avoid undue prejudice.  The court gave the State until three p.m. to file an application for writs in the Louisiana Fourth Circuit Court of Appeal, and we began to prepare an opposition in anticipation of that filing.  We did not receive a copy of the State’s application until nine-thirty a.m. Wednesday, but by ten-thirty a.m., we had revised our opposition as necessary and filed it in the court of appeal.  At the same time, we began preparing an emergency writ application to the Louisiana Supreme Court in the event of an adverse ruling.  At eleven a.m., the court of appeal granted the prosecution’s writ application, reversing the ruling of the district court.  At one-thirty p.m., we filed an emergency application for a writ in the supreme court, which granted our application later that Wednesday afternoon, reversing the ruling of the court of appeal and reinstating the district court’s order.  Before the end of the day, the State had filed an application for a rehearing in the supreme court.  We prepared an opposition that night and filed it at nine a.m. Thursday morning.  The supreme court denied the application for rehearing, and our client took the stand Thursday afternoon to give limited testimony without being required to testify about the substance of the privileged communications.

·     In federal court, we have represented putative class members who were adversely affected by judgments in two long-standing class actions.  We immediately moved for leave to opt out of the classes after the deadline and later moved for relief from injunctions against our clients’ separate but related state-court proceedings.  The district court denied our motions, and we appealed to the United States Eleventh Circuit.  The consolidated appeals were fully briefed and scheduled for oral argument when the parties settled.

Federal and State Courts:  Amicus Curiae Briefs

An amicus curiae brief by an interested non-party in a case on appeal or writ review can supplement the litigants’ briefing and assist the reviewing court, especially when the judgment has critical ramifications and effects on an industry, trade group, or association. An amicus brief alerts the appellate court to concerns, considerations, and policies beyond the issues that the named parties may have briefed on appeal.

Chaffe McCall’s Appellate Practice Section has represented various amici curiae in several cases, including the following examples:

·     In Ford Motor Credit Co., LLC v. Dale, 08-20583, 2009 WL 2857998 (5th Cir. 2009), we filed an amicus brief on behalf of American Financial Services Association and National Automobile Dealers Association, in support of Ford Motor Credit Company as appellee, in a case where the Fifth Circuit affirmed the district court’s judgment that Ford Motor Credit’s security interest in a vehicle was a “purchase-money security interest” under § 1325(a) of the Bankruptcy Code.

·     In Hooks v. Kennedy, 961 So. 2d 425 (La. App. 1 Cir.), writ denied, 967 So. 2d 507 (La. 2007), we represented the National Association of State Treasurers and the National Association of Unclaimed Property Administrators as amici in defending the constitutionality of the Louisiana Unclaimed Property Act, La. R.S. 9:151, et seq.

·     In Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439 (5th Cir. 2001), we filed an amicus brief for the Association of American Railroads concerning the application of the Federal Railroad Safety Act, 49 U.S.C. §§ 20101-20153, and train speed regulations promulgated thereunder, in a railroad employee’s action under the Federal Employers’ Liability Act, 49 U.S.C. §§ 51-60.

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Chaffe McCall’s Appellate Practice Section is headed by Douglas L. Grundmeyer, who received a BA from Tulane University in 1970, an MA in English from the University of New Orleans in 1974, and a JD from Tulane Law School in 1976, where he was a member of the Moot Court Board. Before joining Chaffe McCall in 1988, where he has concentrated his practice almost exclusively on appellate matters, Doug served as an editor for a national legal publisher and as a senior law clerk to the Hon. James C. Gulotta, Chief Judge of the Louisiana Fourth Circuit Court of Appeal.  He was a contributing editor of Vols. 21 and 21A, Am. Jur. 2d, Criminal Law (Lawyers Co-Op, 1981) and a contributing author of Louisiana Appellate Practice Handbook (Lawyers Co-Op, 1986).  Doug is a member of the Louisiana and American Bar Associations, the State Bar of California, and the Bars of the United States Supreme Court and the United States Courts of Appeals for the First, Fifth, and Eleventh Circuits. He has been profiled in Who’s Who in America and Who’s Who in American Law and is a member of the Defense Research Institute (Appellate Advocacy Committee) and Scribes (the American Society of Legal Writers).  Doug’s phone number is 504-585-7028, and his email address is .

The partners in Chaffe’s Appellate Practice Section, Doug Grundmeyer and Jonathan McCall, are the founding co-chairs of the Appellate Practice Committee of the New Orleans Bar Association and are listed as "Top Lawyers of 2009" in appellate practice in New Orleans Magazine (Nov. 2009).  Jonathan is also named in Louisiana Super Lawyers 2010 as one of four appellate lawyers in Louisiana, and was recognized as one of “New Orleans’ Top 50 Lawyers” by New Orleans CityBusiness (2005).

Chaffe McCall, L.L.P.
2300 Energy Centre | 1100 Poydras Street
New Orleans, Louisiana 70163-2300
Phone: (504) 585-7000 | Fax: (504) 585-7075