Logan v. Louisiana Dock Co., Inc.

• Decision Date: 07 June 1989
• Docket Number: No. 88-C-1506,88-C-1506
• Citation: 543 So.2d 1336
• Parties: John LOGAN v. LOUISIANA DOCK COMPANY, INC., et al. 543 So.2d 1336
• Court: Louisiana Supreme Court

Page 1336

543 So.2d 1336

John LOGAN v. LOUISIANA DOCK COMPANY, INC., et al.

No. 88-C-1506.

543 So.2d 1336

Supreme Court of Louisiana.

June 7, 1989.

Prior report: La., 541 So.2d 182.

LEMMON, Justice, concurring in the decision on partial rehearing.

This case presents the question of when a party must take protective action after another party has filed an appeal (or an application for certiorari to the supreme court).

The purpose of an appeal is to have a judgment of a trial court revised, modified, set aside or reversed by an appellate court. La. C.C.P. art. 2082. An appeal is taken by filing a petition or motion for appeal within the delay allowed in the court which rendered the judgment. La. C.C.P. art. 2121; Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981).

When one party has taken a timely appeal, La. C.C.P. art. 2133 provides that it is necessary for the appellee to answer the appeal only when the appellee desires to seek modification, revision or reversal of the judgment. ¹ Therefore, when the appellee does not desire to seek modification, revision or reversal of the judgment below, there is no necessity for an appeal or an answer to the appeal.

Nevertheless, when only the appellant has taken an appeal, the appellee is still a party to the appeal. As such, the appellee has the right to present arguments in support of any portion of the judgment in his favor. ² In this respect the appellee may present any argument supported by the record, even if the lower court has rejected (in obvious dicta), pretermitted or ignored the argument. ³ 9 Moore's Federal Practice p 204.11 (2nd ed. 1948). It is only when the appellee desires to attack any portion of the judgment against him that he must appeal or answer the appeal in order to present arguments supporting that attack.

The general principle that the appellee's right to present any argument in support of any portion of the judgment of the lower court in his favor does not require a protective appeal applies equally to the necessity of protective applications for certiorari. When this court grants one party's application for certiorari, the respondent is still a party to the proceeding and has the right to present arguments in support of any portion of the judgment of the appellate court in his favor which is supported by the record, even if the appellate court in its reasons rejected, pretermitted or ignored the argument. ⁴ It is only when the respondent desires to attack a portion of the judgment of the appellate court against him that he must apply for certiorari in order to present those arguments supporting that attack.

In the present case plaintiff demanded certain worker's compensation benefits. Defendant asserted two defenses, lack of subject matter jurisdiction and non-entitlement to all or part of the benefits demanded. Either of these defenses would have prevented plaintiff's recovery in this action, in whole or in part. The trial court ruled against defendant on both issues, but defendant's timely appeal kept the judgment on these defenses from becoming res judicata. The court of appeal, by reversing on the jurisdiction issue, did not reach the defense of non-entitlement to benefits. Neither this court's granting of plaintiff's application for certiorari nor our subsequent reversal of the appellate court on the jurisdiction issue affected the viability of the non-entitlement defense. Accordingly, this court on rehearing has properly remanded the case to the court of appeal to review this still viable defense. Our original decision requiring defendant to have sought certiorari from the appellate court's judgment (dismissing plaintiff's suit in its entirety) in order to preserve the non-entitlement defense would have established a technical requirement absolutely devoid of utility.

I further disagree with Justice Dennis' view that this court, after granting certiorari to the plaintiff and reversing the court of appeal on the sole defense adjudicated by this court, had the discretion to refuse to remand the case to the court of appeal to consider the still viable alternative defense that might preserve all or part of the appellate court's judgment which was entirely favorable to respondent. ⁵ In my view this court had no discretion to deprive respondent of any defense not adjudicated against respondent by a definitive judgment of any court. ⁶ This court's only discretion, therefore, was either to remand the case to the court of appeal to decide the still viable defense or to decide the validity of the defense ourselves.

1 Of course, an appellee can seek modification, revision or reversal of the judgment by filing a separate appeal within the delay allowed for appealing.

The jurisprudence has established that an appellee can use an answer to the appeal only to obtain modification of that portion of the judgment rendered against the appellee and in favor of the appellant. The appellee cannot use...