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Uncategorized > Day 2 > Flashcards

Day 2 Flashcards

2
Q

Procedure for divorce

A
  1. File petition with court alleging jurisdiction and venue2. Sheriff’s return on petition or waiver3. File rule to show cause w/ affidavits alleging service of petition, as well as stating that the time period for living separate and apart has passed and was followed by the parties4. Serve D unless waived5. File affidavit with court stating that the parties have lived sep and apart and plaintiff desires a divorce
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3
Q

What are the requirements for a detailed and descriptive list of succession property?

A
  1. be sworn to and subscribed by the person filing it
  2. show the location of all succession property
  3. FMV of each item valued at date of decedent’s death
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4
Q

How does one enforce a foreign (out of state) judgement in a Louisiana court?

A

Two options:
1. File an ordinary proceeding against the Louisiana judgment debtor to have the judgment recognized by the Louisiana court.

  1. Use Enforcement of Foreign Judgment Act
    (1) attach an authenticated copy of the out of state judgment to an ex parte petition containing the last known addresses of the judgment debtor and creditor

(2) clerk will mail notice to the last known address of the debtor
(3) judgment may be executed 30 days from mailing of the notice

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5
Q

What is the scope of discovery?

A

A party may discover any matter, not privileged, which is relevant to the subject matter of the litigation.

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6
Q

motion for summary judgment

A
  1. there is no genuine issue of material fact, and

2. the movant is entitled to judgment as a matter of law

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7
Q

What should be attached to a MSJ?

A

An affidavit from

  1. a competent affiant
  2. stating information based on personal knowledge, and
  3. The information wold be admissible at trial
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8
Q

What is the burden of proof in regards to a MSJ?

A

The movant (bearing the burden of proof) must show that there is no factual support for an essential element of the non-movant’s claim.

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9
Q

Interim allowance

A
  1. Succession is sufficiently solvent
  2. The party requesting the allowance is in need
  3. The payment of funds would be within the amount actually due to them
  4. Publish notice of the petition stating that objections should be submitted within 10 days of publication
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10
Q

Directed verdict for insufficient evidence

A

The facts point so overwhelmingly in favor of movant, that only one outcome is possible

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11
Q

Claim of improper venue is what type of exception, and when must it be filed?

A

Declinatory exception of improper venue should be filed before or with the answer to the plaintiff’s petition

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12
Q

Suspensive appeal time in which to file

A

W/in 30 days of time of expiration for new trial or JNOV (7 days from mailing notice of signing judgment)

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13
Q

Devolutive appeal time in which to file

A

W/in 60 days of time of expiration for new trial or JNOV

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14
Q

When must an affirmative defense be raised

A

In answer to petition or it will be precluded from being raised in the future

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15
Q

Vicarious liability

A
  1. employment relationship, 2. employee was acting in the course and scope of the employment relationship, and 3. The employee was at fault.
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16
Q

Elements of negligence

A

1.Cause-in-fact - but for and substantial factor

  1. Duty - What duty owed? (Reasonable Person)
    - Scope of the Duty? (reasonably foreseeable and ease of association)
  2. Breach -“Hand formula”
    - Pitre factors
  3. Injury - Comparative Fault (Watson Factors)
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17
Q

Comparative fault - Watson factors

A
  1. Conduct resulted from inadvertence or awareness of danger?
  2. How great was the risk?
  3. Utility/significance of the conduct
  4. Capacities of actors
  5. Extenuating circumstances
  6. Relationship between conduct and resulting harm
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18
Q

Merchant slip and fall

A

Merchant has a reasonable duty of care to keep floors, aisles and passageways in a reasonably safe condition.

  1. Condition presented an unreasonable risk
  2. Harm was reasonably foreseeable
  3. Merchant created or had actual/constructive notice of the condition prior to the incident
  4. Merchant failed to exercise reasonable care
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19
Q

Pitre Factors

A
  1. Need for compensation
  2. Development of precedent
  3. Moral aspect of D’s conduct
  4. Efficient admin of law
  5. Deterrence
  6. Capacity to distribute or bear loss
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20
Q

Battery

A
  1. Intent to contact in a prohibited way,
  2. Physical contact, and
  3. Harm or offense.
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21
Q

Assault

A
  1. Intent to batter or assault

2. Reasonable fear of an imminent battery

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22
Q

Does a partner convey title of partner to another that purchased the partner’s interest in the partnership?

A

No. They can sell their interest, but becoming a partner is not conferred unless the other partners unanimously consent

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23
Q

Can a corporation force a shareholder to sell their stock back to the corporation?

A

Not unless there is a right of redemption specifically noted in the articles of incorporation and on the stock certificate

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24
Q

Define partnership

A

2+ mutually consent to a relationship combining resources and efforts as well as collaborate at mutual risk for common profit or benefit.

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25
Q

Defenses to Tort

A
  1. Consent
  2. Self defense
  3. Defense of others
  4. Defense of property
  5. Authorized arrest/detention
26
Q

Res ipsa loquitor

A
  1. the event would not occur absent negligence
  2. other causes are sufficiently eliminated;
  3. indicated negligence is w/in the scope of the tortfeasor’s duty to the victim;
27
Q

LPLA

A
  1. Defendant is Manufacturer
  2. Injury proximately caused by
  3. Product with an unreasonably dangerous characteristic (construction, design, warning and warranty)
  4. arising from a reasonably anticipated use
28
Q

Test for PJ over non-resident

A
  1. Minimum contacts with state

2. Does not offend traditional notions of fair play and substantial justice

29
Q

Plaintiff can cumulate actions against a defendant if..

A
  1. Claims are within the jurisdiction of the court

2. The actions are mutually consistent and use the same sort of procedure.

30
Q

Time in which to serve defendant

A

90 days from filing of the petition

31
Q

Time to answer petition

A

15 days; 30 if long arm

32
Q

Work product writings prepared in anticipation of litigation are not privileged if..

A
  1. Denial would unfairly prejudice, or

2. Cause undue hardship or injustice

33
Q

Involuntary dismissal is proper when

A
  1. Bench trial
  2. At close of Plaintiff’s case
  3. Upon facts and law the plaintiff has shown no right to relief
34
Q

Motion for directed verdict is proper when

A
  1. Jury trial
  2. End of opponents case
  3. Facts and inferences are
    a. so overwhelmingly in favor of moving party
    b. that reasonable persons could not reach a contrary verdict
35
Q

JNOV

A
  1. After considering all evidence in light most favorable to nonmoving party,
  2. Evidence points so strongly and overwhelmingly in favor of 1 party that
  3. reasonable men couldn’t reach a different conclusion

File w/in 7 days from mailing of signing of judgment

36
Q

Motion for new trial MAY be granted for

A

Good grounds

37
Q

Motion for new trial MUST be granted if

A
  1. verdict is clearly contrary to law & evidence
  2. new evidence has been discovered that couldn’t have been previously discovered w/due diligence
  3. juror has been bribed/compromised.
38
Q

Writ of distringas

A
  1. judgment orders delivery of thing and Sheriff can’t seize b/c JMD’s concealing/removing it from J of ct or
  2. Judgment orders JMD to do/refrain from doing an act & JMD refuses/neglects to comply w/ ct may
    (1) Distrain JMD’s prop
    (2) hold JMD in contempt OR
    (3) award damages to JMC
39
Q

To prevent sale of seized property, you may..

A
  1. get an injunction showing that
    a: debt was extinguished or unenforceable (no security is necessary under this ground), or
    b: proper executory process procedure wasn’t filed, OR
  2. file a suspensive appeal w/in 15 days of signing order of writ of seizure
40
Q

Writ of attachment

A

P claims interest in prop & D is 1. concealing himself to avoid service OR

  1. alienates/encumbers prop giving C an unfair PV or
  2. places it beyond reach of C(s) OR
  3. has left the state permanently or is able to do so b/4 a JM can be obtained & executed a/g him
41
Q

Grounds for injunction

A
  1. irreparable injury/loss/damage may otherwise result,

2. cannot compensate w/$

42
Q

Temporary restraining order

A

applicant must show by verified petition or supporting affidavit that :
1. immediate/irreparable injury/loss/damage will result

  1. if TRO not granted b/4 the adverse party can be heard in opposition
43
Q

Building liability

A
  1. Ruin/vice/defect presented an unreasonable risk of harm
  2. actual/constructive knowledge of ruin/vice/defect
  3. damage could’ve been prevented by reasonable care, &
  4. failure to exercise reasonable care
44
Q

Dissenter’s rights

A

Force corp to buy back stock for FMV if
1. Corporation approved sale/lease of all assets by over 80%

  1. Shareholder voted against the sale/lease of all assets
45
Q

Negotiable Instruments

A
  1. Written and signed
  2. Unconditional
  3. Promise or order
  4. To pay “to order” or “bearer”
  5. A fixed amount of money
  6. At a definite time or on demand
  7. No extraneous undertakings
46
Q

Holder in due course (HIDC)

A
  1. Holder
  2. Acquired for value
  3. In good faith
  4. No notice that it is overdue, dishonored, or is subject to any defense against it or claim to it by a 3rd party
47
Q

Default judgment procedure

A
  1. 15 days to answer petition
  2. Preliminary default
  3. Confirmed 2 days after entry of default
  4. Personally served on defaulting party
48
Q

Pitre factors

A
  1. Need for compensation2. Development of precedent3. Moral aspect of D’s conduct4. Efficient admin of law5. Deterrence6. Capacity to distribute or bear loss
49
Q

Initial report - corporations

A
  1. Signed by each incorporator
  2. Location and address of corp office
  3. Name and address of registered agents
  4. Name and address of initial directors (if any)
50
Q

Articles of incorporation

A
  1. Name of Corp
  2. Purpose
  3. Number of shares
  4. Par/no par value
  5. If more than one type of stock
  6. Duration (unless perpetual)
  7. Name & address of incorporators
51
Q

Articles of organization

A
  1. name of the LLC
  2. the purpose for which it was formed or “to engage in any lawful activity for which LLCs may be formed”
  3. if low profit LLC
52
Q

Who generally bears the loss for forged instruments?

A
  1. Payor bank can’t charge drawer’s account for forged checks b/c they’re “not properly payable”
  2. writing someone else’s name counts as the writer’s signature, not the named person.
  3. Payor Bank, not the drawer, bears the loss for payment of a “not properly payable” instrument.
53
Q

Defenses to payment of not properly payable instruments

A
  1. Account holder precluded from asserting an item isn’t properly payable if his failure to exercise ordinary care substantially contributed to the theft/forgery.
  2. Account holder failed to review bank statements “reasonably promptly”
54
Q

How much time is available for an account holder to review statements before being precluded from asserting improper payment for instruments paid in good faith by payee bank?

A

An account holder has the first month of the fraudulent payments, and 30 days to review the statement. Functionally, this entitles an account holder to two months of protection.

55
Q

NIED

A
  1. Pl. views accident or comes upon it shortly thereafter before victim’s condition has substantially changed.
  2. Victim’s injury such that Pl. distress is reasonably foreseeable.
  3. Pl. suffers severe and debilitating emotional distress.
  4. Pl. severe and debilitating emotional distress was caused by viewing the accident.
  5. Pl. is a permissible claimant
    (Children/spouse, parent, sibling, grandparent, grandchild)
56
Q

Public Duty Doctrine

A
  1. Ownership/custody of thing by public entity.
  2. Defect created unreasonable risk of harm.
  3. Public entity had actual/constructive notice of defect.
  4. Public entity failed to cure defect w/in reasonable time.
  5. Defect caused Pl. injury
57
Q

Vicarious liability - Employer

A
  1. Employment relationship
  2. Act was within course and scope of employment
  3. Underlying fault of employee
58
Q

Worker’s Compensation

A

Exclusive remedy of employee against employer

  1. Employment relationship
  2. Injury arose in course and scope of employment
  3. Compensable injury

Exceptions:
Intentional Torts
Horseplay
Personal disputes unrelated to employment

59
Q

Wrongful death & Survival action

A

Wrongful death - injuries to beneficiaries as a result of decedent’s death (loss of support, service, community, consortium, love, etc.)

Survival action - pre-death pain and suffering and injuries of decedent. (Medical expenses, lost wages, pain and suffering, etc.)

Beneficiaries are by class to exclusion of other classes and claimants recover equally. (spouse/children, parents, siblings, grandparents)

Uncategorized (3 decks)

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