November 05, 2019
Published in The Baton Rouge Lawyer November/December 2019 edition
Taylor Porter associate Caroline Darwin had her article, "The Appellate Golden Ticket: Decretal Language in a Final Judgment," published in the Nov./Dec. 2019 issue of the Baton Rouge Bar Association's magazine, The Baton Rouge Lawyer.
Below is the full text of the article.
In the beloved story of Charlie and the Chocolate Factory, five rare golden tickets are the key to gaining access to Willy Wonka’s elusive Chocolate Factory. Just like the required golden tickets, you must have a valid appealable judgment in order to appeal your case. Without one, your appeal will be dismissed faster than Willy Wonka could roll Violet Beauregarde out of his factory after she turned into a blueberry. This article will examine the proper format for final judgments in light of the growing number of appeals that are dismissed due to judgments lacking necessary “decretal language.”
The Golden Ticket: How to Draft a Final Judgment
While Charlie’s odds of finding a golden ticket were slim, the chances of having your appeal heard are even less probable without a valid appealable judgment. This is because a valid final judgment is necessary to trigger an appellate court’s appellate jurisdiction. As stated by the Fourth Circuit, “Before considering the merits of any appeal, appellate courts have the duty to determine, sua sponte, whether subject matter jurisdiction exists, even when the parties do not raise the issue.”1 Louisiana appellate courts cannot determine the merits of an appeal unless appellate court jurisdiction is properly invoked by a valid final judgment.2 For a judgment to be a valid final judgment, it must contain specific decretal language.
Although you will not find the word “decretal” in Webster’s Dictionary, it is not a term that is left to pure imagination. “Decretal language” has been defined as the portion of a court’s judgment or order that officially states (or “decrees”) what the court is ordering.3 In a judgment or order, decretal language usually begins with the formula, “It is hereby ordered, adjudged, and decreed that…”4
In order for the language of a judgment to be considered “decretal,” it must do three simple things: (1) name the party in whose favor the ruling is ordered, (2) name the party against whom the ruling is ordered and (3) state the relief that is granted or denied. Appellate courts have recited these necessary elements for final judgments on numerous occasions.5
The current version of Louisiana Code of Civil Procedure article 1918 regarding the form of final judgments does not specify these requirements, but the proposed Law Institute changes to article 1918 for the year 2020 are intended to codify Louisiana jurisprudence providing that a final judgment must contain decretal language identifying the relief that is awarded and the parties in whose favor and against whom the relief is awarded.
Bad eggs: Non-appealable judgments
The required form for a final judgment is absolutely critical for an appeal. Similar to the children who were removed from the tour of Wonka’s Chocolate Factory, many appeals are likewise turned away by appellate courts because of judgments lacking the necessary decretal language. The jurisprudence in this area has developed considerably in recent years, providing useful examples for those attempting to draft judgments.
A final judgment must be precise, definite and certain.6 To be considered a final appealable judgment, the specific relief should be determinable from the judgment without reference to any extrinsic source.7 For example, a judgment that merely sustains an exception without dismissing all or part of the plaintiff’s petition is probably insufficient because such a judgment leaves unanswered the question whether the plaintiff’s petition has been dismissed entirely.8
Similarly, a judgment granting summary judgment must say more than “summary judgment is granted.” In Thompson v. Cenac Towing Co., L.L.C.,9 the First Circuit found a judgment like this deficient and dismissed the appeal for lack of an appealable judgment. The judgment appealed in Thompson stated:
IT IS ORDERED, ADJUDGED, AND DECREED that Defendant’s Motion for Summary Judgment is GRANTED in Defendant’s favor against Plaintiff and that Plaintiff’s claims under the Jones Act and for unseaworthiness are dismissed with prejudice at Plaintiff’s cost.10
Although the parties contended that the judgment was final and disposed of all the claims in this case, the court disagreed. The Court found the judgment was ambiguous as to the relief granted stating, “It is not possible to determine, from that judgment alone, if the judgment dismisses the plaintiff’s claims in their entirety or if a La. C.C.P. art. 1915(B) designation is needed.”11
A judgment will also be deemed deficient if the amount awarded is not stated or determinable from the judgment itself, so that a third person can determine from the judgment itself the amount owed without reference to other documents. In Zanders v. Davis,12 the First Circuit dismissed an appeal for this reason. The judgment in Zanders awarded Zanders “only” the sum of $12,055, “attorney fees in the amount of 25% of the principal and interest,” and all court costs.”13 The judgment was deemed deficient because:
[T]he exact amount of attorney fees cannot be determined from the June 14, 2018 judgment itself — the judgment merely indicates that the attorney fees are 25% of the principal and interest. More specifically, with respect to the “interest,” the judgment does not identity whether such interest is legal interest or some other interest, i.e. contractual interest pursuant to the note, and whether that interest is from judicial demand, the date the note was due, the date of judgment, or some other date. Furthermore, the judgment does not identify the amount of the principal — i.e., it does not identify the sum of $12,055.00 as the principal amount. Absent such necessary information, the June 14, 2018 judgment on appeal lacks precise and certain decretal language, is defective, and cannot be considered a final judgment for purposes of appeal.14
The Fourth Circuit’s opinion in Urquhart v. Spencer15 emphasizes the importance of clearly identifying the parties in favor of and against whom judgment is rendered. The court stated, in part:
In multiple defendant cases such as this one, the “failure to name the particular defendant cast in judgment results in the invalidity of the judgment.” As we have stated, “The failure to name the defendant against whom the judgment is rendered in a case with multiple defendants makes the judgment fatally defective, because one cannot discern from its face against whom it may be enforced.” Another important requirement for a valid appealable judgment is that it contain decretal language “express[ing] the degree of fault of each defendant as a percentage.” A judgment also lacks the necessary decretal language when it “does not set forth any determination as to whether the defendants are jointly or solidarily liable such that it is unknown what amount each defendant is obligated to pay.”16
Oompa Loompa: What happens when a non-appealable judgment is appealed?
Traditionally, if a judgment is deemed deficient on appeal, the appellate court will simply dismiss the appeal with leave to file a new appeal once the trial court renders a valid appealable judgment.17 In an effort to minimize costs and unfavorable delays resulting from dismissals, appellate courts may exercise their discretion to convert the appeal to an application for supervisory writs when confronted with a judgment on appeal that is not final and appealable.18 In these cases, the appellate court will issue an order directing the trial court to amend its judgment to include the appropriate and necessary decretal language within a specified period of time, directing the trial court’s clerk of court to supplement the appellate record with the amended judgment.19
Regardless of whether an appellate court dismisses an appeal or invokes its supervisory jurisdiction because of a deficient judgment, both situations result in delayed litigation and increased court costs. You can avoid both scenarios
by using the following checklist when drafting final judgments:
Checklist for Drafting Final Judgments
1. Does the judgment specifically identify the prevailing party/parties?
2. Does the judgment specifically identify the losing party/parties?
3. Does the judgment specify the relief granted or denied?
4. If the judgment is a money judgment, does it specify the exact amount of money awarded?
5. If an award is apportioned among multiple defendants, does the judgment specify how much each defendant is responsible for paying?
6. If the judgment dismisses one or several claims, (a) does the judgment specify which claims are dismissed, and (b) does the judgment dismiss the claim(s) with or without prejudice?
Trial court judges frequently instruct the prevailing party to draft a judgment at the conclusion of a hearing. Although routine, drafting judgments should not be done without care. While your appeal will not get sent to an incinerator like the bad eggs in Willy Wonka’s Chocolate Factory, you will likely be under fire for having your appeal remanded, or worse, dismissed.
1 Urquhart v. Spencer, 15-1354 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077 (quoting Moon v. City of New Orleans, 15-1092 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425).
2 Id.; see also, Input/Output Marine Sys., Inc. v. Wilson Greatbatch Techs., Inc., 10-1477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915.
3 Jones v. Stewart, 16-0329 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 387 (quoting Jon O. Newman, Decretal Language: Last Words of an Appellate Opinion, 70 Brook. L. Rev. 727 (2005)).
4 Jones, 203 So.3d at 387.
5 While Louisiana Code of Civil Procedure article 1918 does not currently list these requirements explicitly, proposed Law Institute changes to article 1918 for 2020 are intended to codify Louisiana jurisprudence providing that a final judgment must contain decretal language identifying the relief that is awarded and the parties in whose favor and against whom the relief is awarded. See, e.g., Succession of Porche, 16-0538 (La. App. 1 Cir. 2/17/17), 231 So.3d 401; Abshire v. Town of Gueydan, 16-0466 (La. App. 3 Cir. 12/7/16), 208 So.3d 405; Schiff v. Pollard, 16-0801 (La. App. 4 Cir. 6/28/17), 222 So.3d 867; Contreras v. Vesper, 16-0318 (La. App. 5 Cir. 10/19/16), 02 So.3d 1186.
6 Johnson v. Mount Pilgrim Baptist Church, 2005-0337 (La. App. 1 Cir. 3/24/06), 934 So.2d 66, 67.
7 Bd. of Supervisors of La. State Univ. v. Mid City Holdings, L.L.C., 14-0506 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910 (quoting Input/Output Marine, 52 So.3d at 916).
8 See, e.g., Thompson v. Beagle, 17-0207 (La. App. 4 Cir. 8/16/17), 226 So.3d 518, 522 (judgment decreed that “the defendant in reconventional demand’s Exception of Prescription [is] granted.”)
9 18-1282 (La. App. 1 Cir. 4/12/19), 2019WL1578170 (unpublished).
10 Thompson, 2019 WL 1578170, at *2.
11 Id. at *3.
12 18-0963 (La. App. 1 Cir. 12/21/18), 2018WL6718625 (unpublished).
13 Zanders, 2018 WL 6718625, at *1.
14 Id. at *2.
15 15-1354 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074.
16 Urquhart, 204 So.3d at 1077-78 (citations omitted).
17 See, e.g., Jenkins v. Recovery Tech. Inv’rs, 02-1788 (La. App. 1 Cir. 6/27/03), 858 So. 2d 598, 600.
18 See, e.g., Lalla v. Calamar, N.V., 08–0952 (La. App. 4 Cir. 2/11/09), 5 So.3d 927, 931; Tsegaye v. City of New Orleans, 15-0676 (La. App. 4 Cir. 12/18/15), 183 So.3d 705, 711, writ denied, 16-0119 (La. 3/4/16), 188 So.3d 1064.
19 See, e.g., Moore v. Murphy Oil USA, Inc., 15-0096 (La. App. 1 Cir. 12/23/15), 186 So.3d 135, 142, writ denied, 16-0444 (La. 5/20/16), 191 So.3d 1066.