LA Civ Pro Flashcards
(186 cards)
1
Q
Parish Courts
A
<$20k
2
Q
City Courts
A
<$15k
3
Q
Justice of the Peace Courts
A
<$5k
4
Q
District Courts J
A
original general jurisdiction
5
Q
Courts of Appeal
A
appeal of right in any civil matter
review questions of law and fact
6
Q
Supreme Court
A
original J over admission and disciplinary proceedings against members of the bar
appeal of right: constitutionality of statute and death penalty
discretionary supervision J over all courts by writ of certiorari
7
Q
Personal Jurisdiction
A
- Service on D or agent
- Service on Attorney
- Appoint counsel
i) non resident absentee
ii) minor incompetent w/o representation - consent
- long arm J
8
Q
Long Arm Personal Jurisdiction
A
Minimum Contacts
- Purposeful directed activities
- fair to subject D to PJ
i) buden on D
ii) States interest
iii) P’s interest
iv) judicial system efficient resolution
v) states interest in substantive social policies
9
Q
Long Arm Contact Actions
A
- transacting business
- contracting to supply services or things
- injury or damage through act or omission
- injury in LA outside LA but regularly does or solicits business
- immovable property in LA
- nonsupport of child spouse domed in LA
- conceived child while in LA
- manufacturer of product that caused damage in LA
10
Q
In Rem J
A
enforce right in, to, or against property having situs in LA
11
Q
Quasi In Rem J
A
render money judgment against nonresident by attachment property
12
Q
Venue
A
Dom - parish of domicile
Resides - Parish of residence
Nonresident w/agent - parish of P.O. Box
Nonresident - P’s domicile or where service is made
Domestic Business - parish of registered office
Foreign and licensed - PPB
Foreign - Ps domicile or where service is made
domestic insurer - registered office
Foreign - east baton rouge
Partnerships/Unincorps - principal business establishment
13
Q
Change of Domicile
A
may file in old domicile for one year after change or in Ds new domicile
14
Q
Joint or Solidary Obligors Venue
A
proper to one is proper to all
15
Q
Tort Venue
A
- damages sustained
- wrongful conduct occurred
- D is domiciled
16
Q
Establish or Disavow Filiation Venue
A
Establish
1. dom of child
2. conception occurred
3. either parent resided at conception
4. child was born
Disavow
1. parish of birth
2. where parents resided at birth
17
Q
Custody and Child support
A
Obtain = matrimonial domicile
Change = cust parent dom, custody decree rendered, where seeker is domiciled if other out of state
Modify Support = person awarded is dom, support rendered
Register Support = where person awarded is dom
18
Q
Succession Venue
A
MUST be in court where succession is pending
19
Q
Direct Action Statute
A
sue insurer directly
- where accident occurred
- Where could be brought
- Insured must be joined
20
Q
Forum Non Conveniens
A
proper venue, transfer to other proper venue for convenience of the parties and witnesses and in the interest of justice
21
Q
Nonwaivable Venue
A
- annul prior judgment
- succession - domicile of decedent
- annulment or divorce actions
- emancipation, tutorship, interdiction
22
Q
Mandatory Recusal
A
- potential witness
- employed or consulted with attorney
- represented cause
- related by blood or marriage to party
- otherwise biased
23
Q
Permissive Recusal
A
- associated with attorney
- judge performed a judicial act in case in another court
- relationship between judge and attorney appearing preventing fairness
24
Q
Recusal Procedure
A
on own motion, party motion, or refer motion to another judge
25
Attorney Obligations as Officer of the Court
1. conduct himself with decorum consistent with dignity and authority of the court
2. Treat others in court with due respect
3. not interrupt opposing counsel or impede proceedings
4. Not knowingly encourage or produce false evidence
26
Res Judicata
Shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation
27
Cumulate Actions = P v D
1. action is within court's J and brought in proper venue; AND
2. mutually consistent and employ same form of procedure
28
Cumulate Ps or Ds
1. community of interest
2. actions are within court's J
3. actions are consistent and employ same form of procedure
29
Lis Pendens
two or more suits pending in more than one court on same transaction or occurrence
all but first must be dismissed OR if D doesn't except first final judgment is conclusive
30
Abandonment
3 years pass w/o any steps taken will be dismissed
w/o formal order, but on ex parte motion of party or affidavit of interested person court shall enter formal order of dismissal
motion to set aside dismissal must be made within 30 days of sheriff's service
31
Class Action Requirements
1. numerous that joinder impracticable
2. common question of law or fact
3. claims or defenses of members are typical
4. rep parties provide fair and adequate representation
5. class defined objectively
32
Further Class Action Requirement
may be maintained if:
1. prosecution of separate actions creates risk of inconsistent or varying results
2. opposing party has acted or refused to act in a manner applicable to the class as a whole
3. questions of law or fact common to members predominate
33
Derivative Actions
enforce right by shareholder, partner, or member when entity refuses to enforce own right
34
Joinder
Must be joined if:
1. complete relief cannot be accorded among those already parties OR
2. claims an interest and absence would impair or impede ability to protect interest or leave parties with a substantial risk of incurring multiple or inconsistent obligations
35
Factors - party cannot be made party
1. extent judgment rendered in absence might be prejudicial to him or those present
2. prejudice can be lessened or avoided by protective provisions in judgment or relief
3. judgment absent party would be adequate
4. P will have adequate remedy if dismissed
36
Form of Petition
SHALL:
1. caption
2. concise allegations in #d paragraphs
3. signed by an attorney or unrepresented plaintiff
4. name and domicile of parties
5. causes of action and facts arising out of the transaction or occurrence
6. Address for receipt of service
7. Prayer for judgment
37
Attorney's Signature
He has read it and that to the best of his knowledge, information, and belief formed after a reasonable inquiry, certifies that:
1. it is not being used for any improper purpose such as to harass, delay, or increase costs
2. it is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law
3. it has or is likely to have evidentiary support AND
4. each denial is warranted by the evidence reasonably based on lack of information or belief
38
No Monetary Amount
no specific amount may be included in allegations or prayer in demand
allege claim exceeds or is less than required amount
39
Making Service
must be requested within 90 days of commencement of action
1. personal service
2. Domiciliary Service
3. Corporations (registered agent, any officer director or employee, SOS)
4. Long Arm Service (certified mail or commercial courier)
5. Nonresident Motorist (SOS)
6. Partnerships (personal to any partner, employee)
7. Unincorp (agent, or official, member)
8. Foreign Insurer (SOS)
9. Nonparty Physician (employee of doc)
10. LLC (agent, any manager, member, employee)
40
Sheriff's Return
Affidavit must be filed to show service
evidence of correct service
41
Default Judgment
may be entered against D in failure to respond timely
42
Answer
21 days or 30 days when
1. long arm statute service OR
2. P served discovery with petition
State has 30 days
if exception filed prior to answer, answer required 15 after ruling on exception or amended petition
43
Contents of answer
admits or denies allegations
can claim lack of knowledge, information, to form belief
44
Affirmative defense
1. failure of consideration
2. mitigation of damages
3. negligence or fault of the plaintiff and others
4. duress, error, or mistake
5. estoppel
6. extinguishment of obligation
7. illegality
8. Fraud
must be raised in the answer if untimely prohibited from offering evidence in support of that defense
45
Exceptions
Used to retard or dismiss proceeding
46
Declinatory Exceptions
declines jurisdiction of the court
1. insufficient citation
2. insufficient service of process
3. Lis Pendens
4. Improper Venue
5. Lack of Personal Jurisdiction
Waived unless pleaded in or prior to answer
court orders amends or transfer or dismiss
47
Dilatory Exceptions
to delay
1. prematurity
2. want of amicable demand (court costs on P)
3. nonconformity with formalities of petition
4. Vagueness or ambiguity in the petition
5. lack of procedural capacity
in or prior to answer or waived
court orders amends or transfer or dismiss
48
Peremptory Exceptions
if granted results in dismissal
1. Prescription
2. Peremption
3. Res Judicata
4. Nonjoinder of party
5. no cause of action
6. SMJ
unless cure is possible it will be dismissed
49
Peremptory Timing
after answer before trial = tried and disposed of in advance or at trial
after trial = rule at any time unless party against desires and is entitled to introduce evidence thereon (tried specially)
Appellate Court = before case was submitted and may remand for trial (except prescription)
50
Incidental Demand Types
1. Reconventional Demand
2. Cross-Claim
3. Intervention
4. Third-Party Demand
5. Prescription
51
Reconventional Demand
any claim whether related or not
D must assert all causes of action the he may have against P out of same transaction or occurrence
Need of third parties with leave of court and in court's J
Cause of action after answer filed w/ leave of court
Service must be made on P counsel
52
Cross-Claim
party may assert if arising out of same transaction or occurrence that is the subject matter of the original action or reconventional demand new parties may be joined
53
Intervention
3p must be seeking to enforce a right related or connected to pending suit
54
Third-Party Demand
D may bring into lawsuit a third party who is or may be liable to him
55
Prescription
incidental demand not barred if not barred at time main demand was filed AND it is filed within 90 days of service of the main demand (90 days for 3p D of service)
56
Motion to strike
court on its own or party motion to strike from a pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter
57
Motion for Summary Judgment
Based on a claim that there is no GENUINE ISSUES OF MATERIAL FACT and mover is entitled to judgment AS A MATTER OF LAW
58
MSJ Timing
by P after answer has been filed
D at any time
motion and supporting affidavits MUST be served at least 65 days prior to trial
Opposing memos and affidavits must be served at least 15 days before the hearing
Hearing must be set more than 30 days after motion and more than 30 days before trial
Judgment must be entered 20 days before trial
59
BOP MSJ
on movant
if movant will not bear BOP at trial only need proof of absence of factual support of one or more elements essential
60
Supporting MSJ
pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, admissions
61
Affidavit Requirements
1. competent affiant
2. personal knowledge
3. facts admissible at trial
62
Motion for Judgment on the Pleadings
any party after answer filed
Court looks at ONLY pleadings considers of the mover's undenied allegations and opponents allegations as true
62
Amending Petition
w/o leave prior to answer
leave of court or consent of opposing counsel required
answer to amended petition required within 10 days of service
63
Amending Answer
D amend once within 10 days of original served
leave of court or written consent of other party
64
Amending Exceptions
Dilatory and Declinatory amended prior to the hearing with leave or written consent of other party, BUT ONLY TO AMPLIFY
Peremptory may be amended at any time even to add new objection
65
Subpoenas - Witnesses
who work or reside in LA to attend anywhere in the state
pay expenses for those residing and employed outside of parish and more than 25 miles from courthouse
66
Subpoena Duces Tecum
compels witness to bring certain documents, things, or ESI
Recipient may object in 15 days after service party requesting can then move to compel and for sanctions
67
Discovery
Party may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in pending action
need not be admissible at trial if the information is reasonably calculated to lead to discovery of admissible evidence
68
Protective Orders
available to prevent annoyance, embarassment, oppression or undue burden or expense
Remedies:
1. prohibiting discovery
2. limiting terms of discovery
3. ordering that trade secret or confidential information not be disclosed or designate form of disclosure
69
Types of discovery
1. depositions
2. interrogatories
3. request for production of documents or things
4. Physical and Mental exams
5. requests for release of med records
6. Requests for admissions
70
Depositions
Place=
1. where consented
2. in state where court orders or parish where deponent resides or is employed or transacts business
3. out of state deponent in accordance of laws of foreign state if temporarily in state may be taken where he is served or where court orders
71
Notice of deposition
reasonable notice in writing to other parties of time, place, and manner of deposition; name of deponents, any materials subpoenaed in connection with deposition
(sufficient to compel attendance of party)
non party must be subpoenaed
72
Failing to Attend Depo
party giving notice fails to attend or serve nonparty with subpoena and witness fails to attend court may award reasonable expense and attorney's fees incurred by other party
73
Questions in Depo
may address any relevant, non-privileged natter, even if later inadmissible
74
Depo Objections
stated concisely and in non-argumentative and non-suggestive manner
may instruct deponent not to answer only when to preserve privilege, enforce limitation of evidence imposed by court, prevent harassing or repetitous questions, prevent ?s seeking inadmissible and unreasonably calculated to lead to discovery of admissible evidence
75
Motion to terminate depo
when conducted in bad faith, or to annoy, embarass, or oppress deponent or party
76
Uses of Depos
preserve testimony
impeach at trial
77
Interrogatories
written questions directed to ANY party
answered under oath within 30 days of service (15 in family law)
limit to 35 including subparts unless leave of court
78
Option to produce business records
in lieu of answering interrogatories party can specify where in records answers may be found (burden similar for both parties) make records available
79
Requests for Production of Docs and things
on any party or witness
adverse party must make available for inspection, copying, testing, sampling, or entry upon land for inspection or surveying
30 day time limit to object
party may organize docs or present them how they are kept in usual course of business
80
Compelling Physical/Mental Exams
only if it is at issue
party conducting must give report to interested parties
disclosure waives patient-physician privilege pertaining to condition at issue
81
Request for release of Medical Records
on any other party whose medical condition is at issue
30 days to sign release or object
82
Request for admission of facts or genuineness of Docs
adverse party only
no answer w/in 30 presumed proved or genuine
party may object, no knowledge, admit, deny, or state privilege
"insufficient information" only with "reasonable inquiry"
insufficient answers moving party may request determination of sufficiency
83
Forced to Prove Fact
party forced to prove fact denied
costs and attorneys fees recovered unless:
1. request was objectionable
2. admission sought was of no substantial importance
3. party failing to admit reasonably believed would prevail
4. there other good reasons not to admit
84
Compelling Discovery Sanctions
1. adverse inference based upon failure to produce
2. exclusion of evidence
3. striking pleading
4. dismissing case or entering default
5. assessing costs and fees unless justified
6. ordering contempt
85
Work Product
prepared by a party or his attorney in anticipation of litigation or in preparation for trial are NOT discoverable unless denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery.
Protects disclosure of anything that reflects the mental impressions, conclusions, opinions, or theories of an attorney
86
Invoking Work Product Privilege
expressly and describe materials withheld with sufficient particularity to enable the party seeking discovery to assess applicability of the privilege
87
Inadvertent Disclosure
no waiver of privilege if reasonably prompt notice of the inadvertance of disclosure is given to recipient
recipent must return or safeguard materials with or without notice
88
Testifying Witnesses
name of expert is discoverable
written report prepared and signed by expert with opinions and reasons and any data or information based
include exhibits, qualifications, publications (last 10 years), compensation, and cases in precedeing 4 years
must be filed 90 days before trial or if for rebuttal only 30 days after opposing sides expert report is disclosed
89
Nontestifying experts
only discoverable in exceptional circumstances unless examining physician
90
Hearing to Determine Qualifications of Expert
file no later than 60 days before trial
hearing must occur at least 30 days before trial
91
Duty to Supplement
generally no duty
1. identity of persons with knowledge of discoverable matters and expert witnesses and the subject of their testimony
2. information making previous response incorrect
3. Order of agreement
92
Depo of Corporation or other Entity
duty to provide deponent who is qualified to answer questions posed
notice names entity and designates matters on which exam is requested
93
Attorney's Signature and Certification of Discovery
he has read the document and that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is:
1. consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law
2. not interposed for any improper purpose such as to harass or increase unnecessary costs, AND
3. not unreasonable, unduly burdensome, or expensive given the nature of the litigation
94
Motion for Judgment on Offer of Judgment
20 days or more before trial party may make written offer to settle ALL claims with adverse party w/o admission liability
must state it is pursuant to article 970
if accepted any party may move for judgment within 10 days after service
95
Outcomes for motion for judgment on offer of judgment
judgment obtained by P-offeree is at least 25% less than amount of offer of judgment made by D-offeror
OR
judgment against D-offeree is at least 25% greater amount offered by P-offeror
offeree must pay costs, exclusive of attorney's fees incurred after offer
Include additur or remittitur
96
Consolidation of Trials
common issues of law and fact predominate and in the interest of justice
unless:
1. jury confusion
2. prevent fair and impartial trial
3. undue advantage to party
4. prejudice rights of party
97
Voluntary Dismissal
P may without prejudice prior to any appearance of record by D
following appearance court may decline dismissal except with prejudice
98
Involuntary Dismissal
if P fails to appear
if there is a pending settlement either party may reinstate suit within 60 days of receipt of notice of dismissal
99
Motion for Dismissal
non-jury trial = close of plaintiffs case that no right to relief is shown
did P present sufficient evidence to establish claim by preponderance of the evidence
court evaluates w/o any inferences in favor of plaintiff
100
Motion to dismiss D not served
without prejudice if service on D not requested w/in 90 days of commencement of action
101
Right to Jury Trial
all but:
1. Claim < $10,000
2. suits on promissory notes not involving fraud or forgery; AND
3. probate, partition, mandamus, habeus corpus, etc.
102
When jury may be requested
by either party
within 10 days of filing of pleading that raise an issue triable by jury or granting of another party's motion to withdraw jury demand
bond or cash deposit must be filed in amount and time set by court must pay $150 jury filing fee
103
Peremptory Challenges
12 jurors = 6 + 4 if multiple parties
6 jurors = 3 + 2
prior to jury swearing in
104
Challenges for Cause
1. lacks legal qualification
2. formed an opinion or not impartial
3. relations between juror and party or attorney likely to influence
4. been juror for same case or arising from same facts
5. takes the fifth
prior to taking of evidence
105
Judge's Instructions
may not comment on the facts in presence of jury but must instruct jury on law after trial
106
Objections to Instructions
must object before or immediately after deliberation to preserve objection for appeal
107
Jury size and verdict
12 = 9 for verdict
6 = 5
parties may stipulate around this for less and for if jurors become disqualified
108
Directed Verdicts
motion at close of other side's case
must contain a statement of grounds
if denied may proceed with case
facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not reach a contrary verdict
109
Judgment Notwithstanding the Verdict
filed within 7 days, exclusive holidays, from mailing or service of notice of signing of judgment
considering all the evidence in light most favorable to the non-moving party, if facts and inferences so strongly and overwhelmingly favor one-party that reasonable persons could not reach contrary result
110
Court's Options on JNOV
let verdict stand
grant JNOV
or order new trial
party whose verdict is set aside has 7 days to request new trial
can be granted on liability damages or both
111
Remittiur and Additur
court believes verdict is so excessive or inadequate that new trial should be granted for that reason alone
may enter as alternative to new trial if the issue of quantum is clearly and fairly separable from other issues in the case
judge requests consent of adverse party as alternative to new trial
appeal is allowed
112
Special Verdicts
court may submit written ?s to jury susceptible of categorical or brief answer, or alternative findings
113
General Verdicts with Answer to interrogatories
submit written interrogatories with general verdict forms on one or more issues of fact necessary to a verdict
114
Interlocutory Judgments
does not determine the merits appeal only if provided by law otherwise must seek supervisory writ or appellate review after trial on the merits
115
Final Judgments
1.must be signed by judge
2. Clerk must mail notice of signing of judgment to all counsel of record and unrepresented party
3. file certificate of mailing in the record
116
Amend of Final Judgment
motion of any party or court
to correct errors of calculations or alter phraseology NOT substance hearing required unless waived
117
Partial Final Judgments
dismisses the suit as to less than all the parties
grants motion for judgment on pleadings
grants motion for summary judgment
signs judgment on principal or incidental demand
signs judgment on issue of liability when tried separately from damages
118
Partial Judgment
judgment on less than all claims, sustains exception in part
not final UNLESS designated as final by the court after express determination there is no reason for delay
if appealed trial court retains J over remaining issues
119
Finding of Facts and Reasons for Judgment
appealable cases other than jury trials, court SHALL issue written findings of fact and reasons for judgment if requested by party within 10 days of mailing of the notice of signing of judgment
in nonjury personal injury cases court issues finding of fact but NOT reasons whether or not requested
120
Jury case and compromise agreements
Jury Cases=
-court must prepare and sign judgment in accordance with verdict OR order counsel to prepare and submit a judgment for signature within 10 days of verdict
Compromise agreements=
court may order counsel to prepare and submit judgment for signature within 20 days of recital in record
121
Declaratory Judgments
type of final judgment
determining rights before a contract has been breached
122
Motion for New Trial
granted on contradictory motion of party or court alone
granted when moving party able to demonstrate:
1. verdict is contrary to law and evidence
2. new evidence has been discovered which could not have been discovered prior to final judgment
3. or juror was compromised or bribed
also if court determines new trial is warranted
123
Motion For New Trial Filing
within 7 days excluding holidays from mailing or service of notice of signing of judgment
124
Standard for Granting New Trial
trial judge is free to evaluate the evidence without favoring either party
he may draw his own inferences and conclusions and may evaluate credibility of the witnesses
granted if verdict or judgment clearly contrary to law and evidence
125
Annulment for Vices of Form
final judgment shall be annulled at any time if rendered against an incompetent not represented as required by law
against one not properly served and who has not waived an objection to jurisdiction
against one whom a valid default judgment has not been taken
or if judgment was rendered by court lacking SMJ
126
Annulment for Vices of Substance
final judgment obtained through fraud or ill practices may be annulled
must be brought within one year of discovery on direct action not appeal
127
Annulment Proper Court
trial court where judgment was rendered
128
Appeal
may be taken from a final judgment
interlocutory judgment only appealable when provided by law
129
Review of non-appealable judgment/orders
by appellate court's supervisory writ procedure
130
Appellat Court Scope of Review
review law and facts in civil matters (law only in criminal)
fact findings by trial judge not disturbed unless manifest error
131
Writ of Certiorari
application for LASC to review judgment of court of appeal or objection to candidacy or election
must be filed within 30 days of mailing of notice of judgment and opinion by appeal court
30 days of mailing of notice of denial of timely filed appeal to court of appeal
132
Supervisory and Original Wits LASC
based on LASC constitutional authority
filed in court of appeal first within reasonable time set by trial court not to exceed 30 days from date of ruling
after appellate court ruling supervisory writs must be filed within 30 days of mailing of judgment of court of appeal
133
Devolutive Appeals
may be execution of the judgment during time of the appeal
make within 60 days of time to file JNOV has elapsed or denial of timely filed motion for new trial or JNOV is mailed
NO bond required
134
Suspensive Appeals
suspend execution of judgment during appeal
within 30 days of when time to file JNOV has elapsed or denial of timely filed motion for new trial or JNOV is mailed
Bond required if judgment is for a sum of money
if no bond court can convert to devolutive appeal
135
Method of Appealing
obtain order from trial court within the delay allowed upon oral motion in open court, written motion or petition
order of appeal shall state return date and the amount of security (if suspensive)
clerk then mails a notice of appeal to all parties and a notice of the estimated costs for preparing the record to the appellant by certified mail
must pay costs within 20 days of mailing of notice or trial judge may dismiss
136
Return Day
30 days from date estimated costs are paid if no testimony is to be transcribed; OR
45 days from the date such costs are paid, if testimony is to be transcribed unless trial court fixes a lesser period
137
Answer to Appeal
need not answer unless desire judgment be modified
15 days from later of return day or lodging of the record of appeal
138
Trial Court Retains J
perform certain acts including taxation of costs and expert witness fees
139
Dismissal of Appeal
not be dismissed because of an irregularity, error or defect, unless it is imputable to the appellant
motion to dismiss MUST file within 3 days exclusive holidays of return date or lodging whichever is later
basis for dismissal include:
1. consent of parties
2. lack of appellate J
3. no right to appeal
4. abandonment
140
Writ of Fieri Facias
after time for suspensive appeal has run party may execute monetary judgment by filing for and receiving a writ of fifa
141
Writ of Fifa Procedure
directs sheriff to seize and sell Ds property within one year
1.sheriff serves written notice of seizure on debtor and occupants by personal or domiciliary service
2. sheriff then files notice of seizure with the recorder of mortgages
3. property sold at public auction
i) notice in local newspaper 10 days for movables 30 for immovable and 2 ads second at least 7 days preceding sale
ii) must bring at least 2/3 appraised value
iii) if value not satisfied readvertised and sold again for any price unless insufficient to satisfy judgment and pay sheriff's fees
4. Sheriff distributes funds
142
Garnishment and Procedure
Property in hands of 3p (wages, bank accounts)
may be garnished under writ of fifa
filed petition for garnishment and garnishment interrogatories along with any notice of seizure served on garnishee
Garnishee has 30 days to answer failure is proof garnishee has property or is indebted to judgment debtor Garnishee may admit to either
first 75% disposable earning exempt from seizure
143
Judgment Debtor Examination
unpaid judgment creditor may serve "judgment debtor rule" on debtor and require him to disclose assets
court may permit deposition of 3p to aid in execution of judgment
144
Revival of Money Judgment
any time before prescribes (10 years)
file ex parte motion in court which judgment was rendered
must include affidavit of the holder and owner of judgment stating original judgment has not been satisfied
service and citation not necessary
clerk mails noticing of signing of the revived judgment to last known address of debtor
judgment to annul can be filed by judgment debtor showing satisfied prior to revival and attorney's fees and costs if annulled
145
Writ of Possession
directs sheriff to deliver movable property or compels party in possession of immovable to vacate
146
Writ of Distringas
Can be used distrain the property of the D or hold in contempt or award damages when
sheriff cannot seize because D concealed or removed it from jurisdiction of the court
OR judgment orders D to refrain from doing an act and he refuses to comply
147
Specific Performance
judgment is for SP and party fails court may direct sheriff or some other to perform the act at cost of disobedient party
148
Enforcement of Foreign Judgment
ordinary process OR Enforcement of Foreign Judgments Act
149
Enforcement of Foreign Judgments Act
party must annex an authenticated copy of foreign judgment to an ex parte petition and file affidavit with last known address of judgment debtor and creditor
clerk sends notice to debtor and judgment may be executed 30 days after mailing
150
Making Judgments of other LA courts Executory
file an ex parte petition annexing a certified copy of the judgment and praying judgment be made executory
151
Summary Proceedings
conducted with rapidity within delays allowed by the court and without citation and observance of all formalities
only for trial and disposition of the matters
152
How to Commence Summary Proceedings
filing contradictory motion or a rule to show cause or by petition if it is a habeus corpus, quo warranto or mandamus proceeding
153
Executory Process
rapid forclosure and certain property may be sold WITHOUT personal judgment against debtor
mortgage or privilege by authentic act
movable property by private signature duly acknowledged
154
Executory Process Procedure
1. Petition praying for seizure and sale and include all authentic evidence
2. Execution of a Writ of Seizure and Sale (sheriff seizes property)
3. Auction
155
Debtor's Option Prior to Auction
1. Injunction (extinguished, unenforceable, or procedure not followed)
2. Appeal
156
Concursus
proceeding bringing in two or more having competing claims to money or property and requiring them to assert their claims
disputed property is placed in registry of the court
157
Writ of Attachment
Obtained when plaintiff claims an interest in property and D is concealing himself toavoid citation
when D is non-resident
158
Writ of Sequestration
when P claims to own, possess, or have a privilege, mortgage, or security interest on property seized and is within power of D to conceal, dispose, waste or remove from parish
159
Injunction - Irreparable Injury, loss, or damage
upon application by petition
Irreparable = cannot be compensated by money damages
160
Temporary Restraining Order
w/o contradictory hearing not to exceed 10 days extended for good cause
must show irreparable harm will be had, verified and contain attorney certification regarding efforts to provide notice
security required and may move to dissolve upon two days notice
161
Perliminary injunction
requires notice and hearing, and trial on its merits
scheduled not less than 10 days from service of notice
162
Permanent Injunction
comes after fill trial on the merits
163
Security for TRO/Preliminary Injunction
necessary to indemnify person wrongfully restrained for damages sustained
not needed if pertains to debt that has been extinguished
164
Dissolution of TRO/Preliminary injunction
any interest person may move to dissolve upon two days notice to adverse party
165
Petitory Actions
P seeks judgment declaring that he is owner of the property
Must NOT have possession at time of filing suit D must be in possession or assert that he owns the property
166
Possessory Actions
P is in possession but is being disturbed physically or in law
P's BOP:
1. P has possession
2. Quiet uninterrupted possession for more than one year (unless force or fraud)
3. Disturbance in Fact or Law
4. Instituted within one year of disturbance
TITLE NEVER AN ISSUE
167
Judgment of Petitory Action
D has 60 days to assert ownership or be precluded from ever asserting ownership
damages may be sought
168
Notice of Pendency of Action
special notice of lis pendens
actions pending in LA court (state or fed) affecting title to, or asserting a mortgage or privilege on immovable property
give 3ps notice of pending action
Written notice to be given to all against whom it is to be effective
169
Probate
Who:
any person with an interest
How:
1. filing petition praying testament be probated and executed
2. attach affidavit of death, domicile, and heirship; and present will
170
Proving Will by Affidavit
ALL wills may be proved by affidavit unless court wishes to hear testimony
171
Challenge to Probate
ex parte challenge is heard in a contradictory hearing and the BOP of authenticity is on proponent of the will
172
Annulment
P has burden proving invalidity of notarial testament, a nuncupative testament by public act or a statutory testament
D has burden for 3 months after probate after that its on P
173
Videotaped Testaments
Admissible as EVIDENCE if testator's sworn oath is recorded, of the following:
1. proper exectution of testament
2. intentions
3. mental state or capacity
4. authenticity
5. by matter the court deems relevant to probate
174
Intestate Successions
1. File petition for possession along with the affidavit of death, domicile, and heirship
2. Inventory or sworn descriptive list of assets is prepared
i) sworn and subscribed by person filing it
ii) show location of property
iii) state FMV at date of decedent's death
3. Judgment granted ex party
4. Surviving spouse must join claim
Creditors have three months from date of judgment of possession in which to file a claim heirs must then post a bond or judgment will be dissolved
175
Testate Succession
1. Probated
2. Petition of possession
3. Inventory prepared
4. Executor must join
176
Creditor Sue Succession Rep
to enforce a claim against the succession until the representative has rejected the claim
failure to act within 30 days is rejection
177
Small Successions Qualifications
1. valued $125,000 or less at time of death
OR
2. any value for decedent who died at least 20 years prior
OR
3. Decedent who has died testate and left no immovable property and probate of testament would have same effect as if decedent died intestate
178
Small Successions Procedure
Not required if sole heirs are descendants, ascendants, siblings, or surviving spouse
Affidavit setting forth:
1. date of death
2. deceased died intestate or testate
3. marital status of deceased
4. if no surviving spouse, signed by two heirs (no spouse one heir = signed by second person w/ knowledge of the succession matters)
5. Include names and addresses of heirs, cert copies of probated testaments from annother state and a description and value of property and interests in that property
179
Partition Options
divisible in kind or by licitation
180
Tutorship Lawfully Dispose of Property
1. description of property, price and conditions of proposed sale, and why its advantageous
2. tutor's recommendation that sale be approved because above-market valued proposed sale; AND
3. Written concurrence of the undertutor
181
Eviction Procedure
1. right to occupancy ceases lessor delivers notice to vacate within 5 days of delivery
**May be attached to door id lessee whereabouts unknown
2. Rule to show cause - Deliver the Premises (lessee fails to vacate)
2. Lessor takes possession (immediate if abandoned)
3. Rule Heard (no earlier than third day after service)
4. Failure within 24 hours of judgment (direct sheriff to take property may break down door)
5. No Suspensive Appeal unless D contested the rule and posted bond within 24 hours of judgment
182
Habeas Corpus
commanding person who has another in custody to produce him in court and state the authority for custody
183
Mandamus
writ directing public officer to perform a ministerial duty required by law or directing a corporation to perform duty
184
Quo Warranto
direct individual to show by what authority he claims to hold public or corporate office
185
Testing Validity of a Bond
any person in interest can test the sufficiency by ruling the party into court to show cause why the bond should not be decreed insufficient or valid and why the particular proceeding for which the bond was furnished should not be set aside
