Chaffe McCall’s Appellate 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.
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, railroad, and products-liability law. We have represented 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 in matters involving class actions, injunctions, and arbitration motions.
Some examples of our appellate advocacy include the following cases:
- In Stewart Enterprises, Inc. v. RSUI Indemnity Co., 614 F.3d 117 (5th Cir. 2010), our client had sued its second-layer excess insurer, seeking reimbursement for property damage and other losses suffered in Hurricane Katrina. On cross-motions for partial summary judgment, the district court ruled that the policy covered the risk of flood but that the policy’s anti-concurrent causation clause (“the ACC clause”) limited the flood coverage. The district court certified its ruling for appeal sua sponte under Fed. R. Civ. P. 54(b), and both parties appealed. Our brief presented a clear explanation of the complicated relationship between the policy’s ACC clause and its flood sublimit. The Fifth Circuit ruled in our client’s favor, finding that the ACC clause limited coverage only after the full amount of the flood sublimit had been exhausted.
- In Smith v. American Family Life Assurance Co. 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 Brookshire Bros. Holding, Inc. v. Dayco Products, Inc., 554 F.3d 595 (5th Cir. 2009), cert. denied, 172 L. Ed. 2d 578 (2009), our client and co-defendants successfully appealed a discretionary remand order after the district court had declined to exercise supplemental jurisdiction over remaining state-law claims in a case that had been properly removed and had been litigated in federal court for several years before the federal claims were settled. In the wake of the Fifth Circuit’s decision ordering the district court to retain subject-matter jurisdiction of the case, we further enjoined plaintiffs’ attempt to litigate in Louisiana state court and opposed plaintiffs’ certiorari application in the U.S. Supreme Court.
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 independently review the trial record and, if the record is complete, make findings of fact and render judgment, without remanding the action for a new trial.
Appeals 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 a medical-malpractice action, Miller v. University Healthcare Systems, LLC d/b/a Tulane University Hospital and Clinic, 2009-1740 (La. App. 4 Cir. 5/12/10), 38 So. 3d 1142, writ denied, 2010-1383 (La. 9/24/10), 45 So. 3d 1063, our firm filed a summary-judgment motion for the defendant hospital, moving the district court to dismiss the action on the grounds that the plaintiffs had failed to offer expert testimony to establish medical causation. The plaintiffs opposed the motion, arguing that they did not need expert testimony because they were entitled to the benefit of Louisiana’s legal presumption that symptoms appearing after an event had been caused by that event, as set out in Housley v. Cerise, 579 So. 2d 973 (La. 1991). We replied that the plaintiff-patient was not entitled to that presumption, because her condition had existed before the incident. The district court agreed, granting the motion and dismissing the action. The plaintiffs appealed to the Louisiana Fourth Circuit Court of Appeal, which affirmed the district court’s judgment.
- In Allied North American Corp. of Texas v. Edgecomb, 09-0113 (La. App. 1 Cir. 6/19/09), 11 So. 3d 1246, we represented defendant insurance brokers in the district court and on appeal in an action alleging breach of contract and unfair trade practices, resulting in the dismissal of all claims after summary-judgment and bench-trial proceedings. In an unpublished decision, the appellate court affirmed the judgment.
- In Alday v. CSX Transportation, Inc., 07-1308 (La. App. 4 Cir. 9/24/08), 999 So. 2d 782, writ denied, 08-2850 (La. 2/6/09), — So. 2d –, we successfully defended an appeal from an involuntary dismissal in favor of our railroad 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., 05-1360 (La. App. 4 Cir. 6/21/06), 935 So. 2d 716, 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. Galjour has been cited several times in Louisiana class actions, for example, in Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), — 62 So. 3d 721 –.
What is decretal language and why is it important for an appealable judgment? Click here to see Loretta Hoskins’s article published in the New Orleans Bar Association’s “Briefly Speaking.”
What is the significance of a district judge’s reasons for judgment? Click here to see Doug Grundmeyer and Jonathan McCall’s article, to be published in full in the Fall 2012 issue of the New Orleans Bar Association’s “Briefly Speaking.”
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 in 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 flood-loss sublimit 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 2010, for example, 1,409 applications for supervisory writs were filed in Louisiana’s intermediate appellate courts in civil cases (excluding pro se litigants), of which 359 — more than a quarter — 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 of a stove and tried the case before a jury, which returned 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 then 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), writ denied, 08-2485 (La. 1/9/09), 998 So. 2d 729, we successfully opposed supervisory writ applications in the court of appeal and in 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.
If a Louisiana district judge renders a non-appealable interlocutory order in open court, when does the delay to apply for a supervisory writ begin? Click here to see Doug Grundmeyer and Jonathan McCall’s article published in the New Orleans Bar Association’s “Briefly Speaking.”
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, and the parties settled the case during review, shortly before the court of appeal rendered a split decision. Mooring Financial Corp. 401(k) Profit Sharing Plan v. Mitchell, 08-1250 (La. App. 4 Cir. 6/10/09), 15 So. 3d 311).
- 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 those communications 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 Section has represented amici curiae in several cases, including the following examples:
- In Ford Motor Credit Co., LLC v. Dale, 582 F.3d 568 (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, 06-0541 (La. App. 1 Cir. 5/4/07), 961 So. 2d 425, writ denied, 07-1788 (La. 9/9/07), 967 So. 2d 507, 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. §§ 20101-53, and train speed regulations promulgated thereunder, in a railroad employee’s action under the Federal Employers’ Liability Act, 49 U.S.C. §§ 51-60.
Federal and State Courts: Appellate Support Services
We also assist appellate counsel in other firms, reading their draft briefs critically, offering constructive suggestions and revisions, attending mock arguments, and advising them on the local rules for the format and filing of briefs. We are prepared to talk to the referring firm or to the client to determine what level of involvement the client would like us to provide, and to give an estimate of our fees.
Recently, for example, we worked with a firm from another state representing an appellant in the United States Fifth Circuit. We read the appellant’s draft original and reply briefs; offered our comments; checked the briefs for compliance with the Fifth Circuit’s local rules; assisted with the actual filing (including the preliminary e-filing followed by paper filing ); provided research and comments on the judges on the panel; attended a mock argument by video-conference; and accompanied the lead attorneys to the oral argument. Through these joint efforts, we give out-of-state counsel insight and guidance concerning the procedures and practices of local appellate courts.
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Chaffe McCall’s Appellate 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, Third, 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 firstname.lastname@example.org.
The partners in Chaffe’s Appellate Section, Doug Grundmeyer and Jonathan McCall, are the founding co-chairs of the Appellate Practice Committee of the New Orleans Bar Association. Doug, Jonathan, and Loretta Hoskins were all listed as “Top Lawyers of 2012” in appellate practice in New Orleans Magazine(Nov. 2012). Click here to see the feature article about Jonathan in that issue. 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).