(and Valid) Judgments - Louisiana State Bar Association

Drafting Lucid, Unmistakable
(and Valid) Judgments
A lawyer who graduated in the 1950s told
me that his joy at winning his first case
turned to bewilderment when the judge
directed him to prepare a judgment. He
had not been taught to draft judgments
in law school, he was a solo practitioner
with no mentor, and listservs to share
information and forms did not exist.
Today many law schools teach litigation
drafting in advanced legal writing
or trial advocacy courses and lawyers
share forms through listservs and other
forums. The myriad recent cases testing
the sufficiency of judgments, however,
reveal that many lawyers are still bewildered
when it comes to proper drafting.
Basic Requirements for a
Valid Judgment
The Louisiana Code of Civil Procedure
gives little guidance as to the contents of
a valid judgment. Article 1918 provides
By Gail S. Stephenson
that the “judgment shall be identified as
such by appropriate language.” Because
a proper final judgment is essential for
determining whether an appellate court
has jurisdiction, 1 Louisiana courts have
had many opportunities to determine
what constitutes “appropriate language.”
Courts have stated that judgments must
contain “lucid unmistakable language” 2
and be “precise, definite, certain.” 3 At a
minimum, the judgment should include
(1) the names of the prevailing party, (2)
the name of the non-prevailing party, (3)
the relief that has been granted or denied,
(4) the procedural device by which the
judgment was obtained, and (5) decretal
language. 4 If any of these requirements
are missing, the appellate court may remand
the judgment to the trial court or
dismiss the appeal because it has no appellate
jurisdiction.
A judgment is the determination of the
rights of the parties in an action. 5 It is im-
portant to know whose rights have been
determined. Thus, the actual names of
the prevailing and non-prevailing parties
should be given in the judgment, rather
than just their procedural capacities or
descriptions, e.g., in favor of John Deaux
(not “plaintiff”) and against Big Logging
Company and ABC Insurance Company
(not “defendants” or “employer and insurer”).
A plaintiff may escape a fatal flaw
in a suit with one defendant if the judgment
casts only “defendant,” but the failure
to name the particular defendant cast
in a case with multiple defendants renders
the judgment invalid. 6
Even with only one plaintiff and one
defendant, the best practice is to specifically
name those parties. One seeking to
enforce the judgment should be able to do
so simply from the language of the judgment,
without referring to other documents
in the record. In one case, the court
declared a judgment invalid because it
Louisiana Bar Journal Vol. 56, No. 3 181

did not name the parties and referred to
the defendant in a workers’ compensation
case only as “Employer.” 7
Another essential element of a valid
judgment is that the parties named in the
judgment were actually sued. This might
seem obvious, but sometimes entities act
like parties to the suit, even though they
are not. For example, even if an insurer
provided a defense for a defendant, it
cannot be cast in judgment if it was never
formally made a party to the lawsuit. 8
Similarly, the receiver for an insolvent
insurer cannot be cast in judgment if it is
not named as a defendant. 9 A judgment
against a party who was not sued is an absolute
nullity. 10
Likewise, a judgment rendered for or
against a party who is not alive when the
judgment is signed is an absolute nullity,
even if the party was alive when the judgment
was orally rendered. 11 If a party dies
when a lawsuit is pending, his legal successor
may have himself substituted in
the deceased party’s stead. 12 If he fails to
do so, any subsequent judgment is an absolute
nullity, whether the decedent won
or lost. 13
Decretal language is essential if the
court is dismissing a case. The judgment
should not simply state that a defendant’s
motion is granted; it must decree that the
case is dismissed. 14 The decree should
also state whether the dismissal is with or
without prejudice, as dismissals without
prejudice have no res judicata effect. 15
A final absolute requirement of a valid
judgment is that it be signed “by the
judge.” 16 This requirement is not a drafting
issue but is included in this article because
even a perfectly drafted judgment
will be invalid if signed by the wrong person.
Problems arise most often following
elections. Only the judge who heard a case
or his legally elected successor can sign a
judgment. Thus, if a judge is elevated to
a higher court while a case is under advisement,
he cannot sign the judgment;
his successor must read the transcript and
render a decision. 17
This rule also prohibits another judge
from the same court from signing a judgment
as a matter of convenience. 18 Failure
to have the judgment signed by the proper
judge is a fatal defect. Although the statute
and code article specifically refer to
182 October / November 2008
the “trial judge,” the 1st Circuit has held
that the same principles apply to workers’
compensation judges. 19
Precatory Rules for Proper
Judgments
In addition to the absolute requirements
for a valid judgment, Louisiana
law contains numerous provisions that
are considered precatory. These rules set
forth what should be in a judgment, but
the judgment is not absolutely null if the
rules are not followed.
Recent amendments to Louisiana
Code of Civil Procedure article 1922 require
that the judgment debtor’s date of
birth and last four digits of the Social Security
number, if known, be included in a
money judgment. This information more
clearly identifies the judgment debtor and
eliminates the need to write letters of distinguishment
(commonly known as “not
him letters”). 20 Article 1922 explicitly
states, however, that failure to comply
will not invalidate the judgment.
Judgments that affect title to immovable
property must describe the affected
immovable property with particularity. 21
The failure to do so does not invalidate the
judgment; appellate courts may amend the
judgment to correct this omission. 22 This
requirement does not apply to judgments
of possession in succession proceedings.
Some actions to which it does apply are
mortgage foreclosure suits 23 and suits involving
mineral leases. 24
When suits are consolidated for trial
but not all plaintiffs sue all defendants,
a single judgment is improper. 25 In Louviere
v. Louviere, where six suits were
tried together, the 1st Circuit held that a
single judgment was improper because
some defendants were not sued by all
plaintiffs and some defendants had settled
with some plaintiffs before trial. The court
found that this error could be corrected on
appeal. However, when two suits involving
the same parties are consolidated and
tried together, one judgment for both suits
will suffice. 26
In suits against the state, state agencies
or political subdivisions, court costs
must be expressed in a dollar amount in
the judgment. 27 Failure to do so will not
invalidate the judgment, but it may make
it difficult to get the Legislature to appropriate
payment for those costs. 28
Do not forget to include interest in the
judgment. Louisiana Code of Civil Procedure
article 1921 states that “the court
shall award interest in the judgment as
prayed for or as provided by law.” In tort
actions, interest from date of judicial demand
attaches automatically, even if not
included in the judgment. 29 But for all
other actions, interest is not due if not so
provided in the judgment. 30 If interest is
omitted from the judgment, however, the
omission may be corrected by the court
on appeal. 31
Remember that not all interest is payable
from date of judicial demand. For
example, interest on a judgment for an

equalizing payment in a partition is due
from the date of partition, 32 and interest
for breach of contract is due from date of
breach. 33 The Louisiana Supreme Court
has described the decisions regarding
the award of interest as “numerous and
inconsistent,” 34 and it is not the purpose
of this article to detail the varying times
at which interest may attach. Suffice it
to say that the wise judgment drafter in a
non-delictual action will ensure that interest
is included in the judgment and that
interest attaches at the appropriate time.
Judges sometimes ask lawyers to draft
proposed reasons for judgment. Code of
Civil Procedure article 1918 provides that
when reasons are assigned, they “shall
be set out in an opinion separate from the
judgment.” If there are only reasons and
no separate judgment, appeal delays do not
begin to run. 35 If there is a disparity between
the written reasons and the judgment, the
judgment is definitive. 36 And the judge may
change his mind between giving written
reasons and signing the judgment. 37
Also keep in mind that it does not
pay to take shortcuts. For example, a final
judgment was not created when a
trial judge wrote “Denied” across a rule
to show cause order on a motion for new
trial. 38 Having the judge sign a copy of the
minutes was equally ineffective. 39
Some Final Advice
Use the proper terminology for your
judgments. Motions are granted or denied;
exceptions are sustained or overruled.
When in doubt, don’t leave it out. It is
better to err on the side of caution. Too
much information will not invalidate a
judgment, but too little may. 40
Finally, exercise professionalism and
courtesy by complying with Rule 9.5 of
the Rules for Louisiana District Courts. 41
The rule requires that a judgment presented
for the court’s signature after the
judgment is orally rendered contain the
typewritten name of the judge, be circulated
to counsel for all other parties and to
unrepresented parties at least three working
days before presentation to the court,
and be accompanied by a certificate stating
the date of delivery of the proposed
judgment to the other parties and whether
any opposition was received. 42
FOOTNOTES
1. La. C.C.P. art. 2083.
2. S. St. Lumber Co. v. Dickerson, 106 So.2d
513, 515 (La. 1958).
3. Russo v. Fid. & Deposit Co., 56 So. 506
(1911); Laird v. St. Tammany Parish Safe Harbor,
02-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364,
365.
4. Johnson v. Mt. Pilgrim Baptist Church, 05-
0337 (La. App. 1 Cir. 3/24/06), 934 So.2d 66; Carter
v. Williamson Eye Ctr., 01-2016 (La. App. 1 Cir.
11/27/02), 837 So.2d 43, 44; Scott v. State, 525
So.2d 689, 691 (La. App. 1 Cir. 1988), writ denied,
558 So.2d 1128 (La. 1990).
5. La. C.C.P. art. 1841.
6. Reaux v. City of New Orleans, 01-1585 (La.
App. 4 Cir. 3/20/02), 815 So.2d 191, 194, writ denied,
02-1068 (La. 6/14/02), 817 So.2d 1158; Scott,
525 So.2d at 691; Borg-Warner Acceptance Corp. v.
Whitlow Truck Ctr., 508 So.2d 857, 859 (La. App.
5 Cir. 1987).
7. Laird v. St. Tammany Parish Safe Harbor, 836
So.2d at 365.
8. Rogers v. Custom Built Garage, 01-0356 (La.
App. 1 Cir. 3/28/02), 814 So.2d 693, 696.
9. Krueger v. Tabor, 546 So.2d 1317, 1319 (La.
App. 3 Cir. 1989).
10. Id.
11. Smith v. Burden Constr. Co., 379 So.2d 1133,
1134 (La. App. 2 Cir. 1979).
12. La. C.C.P. art. 801.
13. Manuel v. New York Life Ins. & Annuity
Corp., 01-0735 (La. App. 5 Cir. 11/27/01), 803 So.2d
210, 211; Akyar v. Lee, 99-0806 (La. App. 5 Cir.
1/25/00), 751 So.2d 411, 412, writ denied, 00-0616
(La. 4/20/00), 760 So.2d 348.
14. Johnson, 934 So.2d at 67.
15. La. C.C.P. arts. 1673 and 1844.
16. La. C.C.P. art. 1911.
17. Darensbourg v. Great Atl. & Pac. Tea Co.,
94-0761 (La. App. 1 Cir. 11/9/95), 665 So.2d 35.
18. La. Paving Co. v. St. Charles Parish Pub.
Sch., 593 So.2d 892 (La. App. 5 Cir. 1992); Ledoux
v. S. Farm Bureau Cas. Ins. Co., 337 So.2d 906 (La.
App. 3 Cir. 1976).
19. Employers’ Nat’l Ins. Co. v. Workers’ Comp.
Second Injury Bd., 95-1756 (La. App. 1 Cir. 4/4/96),
672 So.2d 309, 312.
20. When a search of the mortgage records
reveals a judgment against John Smith, the John
Smiths who are not the judgment debtor may have
problems with their credit reports and property titles.
The plaintiff attorney of record is then asked to write
a letter explaining that the John Smith named in the
judgment is not the John Smith who is seeking credit
or trying to sell property.
21. La. C.C.P. 1919.
22. Fields v. Etheridge, 487 So.2d 551, 552 (La.
App. 4 Cir. 1986).
23. LeBleu v. McGuire, 189 So.2d 319 (La. App.
3 Cir. 1966).
24. Emery v. Succ. of Martel, 10 So.2d 267, 269
(La. App. Orl. Cir. 1942).
25. Louviere v. Louviere, 01-0089 (La. App. 1
Cir. 6/5/02), 839 So.2d 57, 75, writs denied, 02-1877
(La. 10/25/02), 827 So. 2d 1150.
26. Vascocu v. Woodward, 35 La. Ann. 555 (La.
1883).
27. La. R.S. 13:5112(A).
28. Judgments against the state are payable only
by specific appropriation by the Louisiana Legislature.
La. R.S. 13:5109.
29. La. R.S. 13:4203; LeBlanc v. New Amsterdam
Cas. Co., 13 So.2d 245 (La. 1943); Younce v.
Pac. Gulf Marine, Inc., 07-0421 (La. App. 5 Cir.
1/22/08), 977 So.2d 117, 133, writ denied, 08-0416
(La. 4/18/08), 978 So.2d 352.
30. Spalitta v. Silvey, 526 So.2d 471, 473 n.2
(La. App. 1 Cir.), writ denied, 532 So.2d 115 (La.
1988); Davis v. LeBlanc, 149 So.2d 252, 253 (La.
App. 3 Cir. 1963).
31. Preis v. Preis, 95-0352 (La. App. 3 Cir.
12/6/95), 664 So.2d 860, 862, writ denied, 95-3096
(La. 2/28/96), 668 So.2d 368.
32. Preis, 664 So.2d at 862.
33. Mariner’s Vill. Mandeville, Inc. v. Fama,
Inc., 95-1867 (La. App. 4 Cir. 3/14/96), 671 So.2d
1015, 1022, writ denied, 96-0944 (La. 5/17/96), 673
So.2d 615.
34. Trans-Global Alloy Ltd. v. First Nat’l Bank,
583 So.2d 443 (La. 1991).
35. Fisher v. Rollins, 91 So.2d 28 (La. 1956);
Succ. of Velasquez-Bain, 471 So.2d 731, 751 (La.
App. 4 Cir.), writ denied, 476 So.2d 354 (La. 1985).
36. Thurman v. Thurman, 521 So.2d 579, 581
(La. App. 1 Cir. 1988).
37. Bordelon v. Dauzat, 389 So.2d 820 (La. App.
3 Cir. 1980).
38. State v. Landry, 07-1013 (La. App. 3 Cir.
9/19/07), 966 So.2d 690.
39. Ex parte Nicholls, 4 Rob. 52 (La. 1843);
State v. McDonald, 17 La. 485 (1841).
40. Hinchman v. Int’l Bhd. of Elec Workers, 292
So.2d 717 (La. 1974).
41. In Moss v. Moss, 05-0455 (La. App. 3 Cir.
11/2/05), 916 So.2d 455, 458, without reference to
Rule 9.5, the court stated that professionalism and
courtesy (but no rule that it knew of) required presentation
of the proposed judgment to opposing counsel,
and that the trial court did not err in assuming these
expectations had been followed.
42. The Louisiana Supreme Court has proposed
an amendment to Rule 9.5 that would prohibit placing
the judge’s signature line on “a separate part
apart from the body of the judgment or order” and
would require the pleading title and docket number
to appear on the same page as the judge’s signature.
See www.lasc.org/rules/dist.ct/Proposed_District_
Court_Amendments_06_17_08.pdf. The comment
period on this amendment expired July 31, 2008.
Gail S. Stephenson is the
director of legal analysis
and writing and an
assistant professor of
law at Southern University
Law Center. She
is a 1984 graduate of
Louisiana State University
Paul M. Hebert Law
Center, where she was
Order of the Coif and a
member of the Louisiana Law Review. (2747
Purvis Dr., Baton Rouge, LA 70809-1922)
Louisiana Bar Journal Vol. 56, No. 3 183