Summary
In Speeg v. Stewart Title Guaranty Co., 381 So.2d 582 (La.App. 4th Cir. 1980) we held that such a judgment is interlocutory and unappealable.
Summary of this case from Delk v. Bel Builders, Inc.Opinion
No. 10884.
February 27, 1980. Writ Refused April 8, 1980.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE ROBERT A. KATZ, J.
Dutel Dutel, William J. Dutel, New Orleans, for plaintiffs-appellees.
Cooper Hingle, John T. Cooper, New Orleans, for defendants-appellants.
Before SAMUEL, REDMANN, LEMMON, GULOTTA, BOUTALL, SCHOTT, GARRISON, CHEHARDY and HOOD, JJ.
ON RECONSIDERATION OF MOTION TO DISMISS BY COURT EN BANC
Subsequent to the date (December 3, 1979) our original opinion and decree, 377 So.2d 589, in this matter was handed down, we discovered another panel of this court had handed down (on November 12, 1979) a conflicting opinion and decree in Les Levy Oil Supply, Inc. v. Southern Petroleum Transports, Inc., et als., 377 So.2d 907. Accordingly, exproprio motu we ordered the motion to dismiss the appeal in this case be submitted for reconsideration to the court en banc.
As the facts are stated in our original opinion, we consider it sufficient to say that, for the reasons stated in Levy and in the cases cited therein, a majority of the judges of this court now holds a judgment compelling payment of attorney's fees and expenses for failure to comply with discovery procedures is interlocutory and unappealable.
For these reasons, the motion to dismiss is maintained and the appeal in this matter is now dismissed. All costs of this appeal are to be paid by the defendants-appellants.
MOTION MAINTAINED; APPEAL DISMISSED.
REDMANN and LEMMON, JJ., dissent with written reasons.
A party ordered to pay attorney fees (for noncompliance with other orders) may win the lawsuit and have no reason to appeal from the final judgment itself. But he ought to have a right to an appeal from the order to pay attorney fees. Presumably the majority means that, after waiting until the end of the lawsuit, he can then appeal the order (perhaps years after the order). (Review by supervisory writ application, on the other hand, is often illusory and is not an acceptable replacement for an appeal.)
If the litigant can appeal from such an order after the end of the lawsuit he should be able to appeal from it at the time the order is rendered. Early appeal is preferable because, with the availability of suspensive appeal, it solves the problem of enforceability of the order pending appeal. Delaying the appeal does not offer any real advantage because, unlike ordinary interlocutory orders made moot by a favorable final judgment in the principal lawsuit, an order to pay an opponent's attorney fees is never mooted by the final judgment, and the appeals from order and from final judgment are wholly unconnected.
I dissent for the reasons assigned by Judge Redmann and for the reasons stated in the original opinion.