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Flashcards in La. Civil Procedure Deck (404):
1

What is juridiction?

The legal power and authority of a court to hear an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled.

2

What is subject matter jurisdiciton?

The legal power and authority of a court to hear a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. SMJ cannot be conferred by the onsent of the parties; and a judgment rendered by a court without SMJ is void.

3

What is the jurisdiction of parish courts?

Parish courts have concurrent jurisdiction with the district courts in cases where the amount in dispute or the value of the property involved does not exceed $20,000, with some exceptions.

4

What is the jurisdiction of the city courts?

City courts have concurrent jurisdiction with the district courts in cases where the amount in dispute/value of prop does not exceed $15,000, with some exceptions.

5

What is the jurisdiction of the justice of the peace courts?

Concurrent jurisdiction with the district courts in cases where the amount in dispute does not exteed $5,000.

6

Over what types of cases do the parish/city/justice of the peace courts have no jurisdiction?

Immovable proeprty; right to public office or position; assertion of civil/political rights under the constitution; claims for annulment, divorce, and incidentals; succession or interdiction proceedsings; where the state or parish is defendant; any other exemptions by laws.

7

What are additional limits on the city courts?

City courts have no jurisdiction over cases involving tutorship, curationship, emancipation, or partition.

8

What are the additiona limiations on the justice of the peace courts?

No jurisdiction over cases involving tutorship, curationship, emancipation, or partition; adoption; executory proceeding; injunction proceesing; quasi or in rem proceedings.

9

Can parish, city, or justice of the peace courts hold jury trials?

No.

10

Can a parish and city court exercise SMJ over an incidential demand when it has SMJ over the main demand?

Yes; it may exercise jurisdiction over any related incidental demand, regardless of the amount in dispute. However, when a compulsory reconventional demand exceeds the court's jurisdiction, te court shall transfer the entire action to a court of proper jurisdiction.

11

What is the jurisdiction of district courts?

They have original, general jurisdiction.

12

What is the jurisdiction of the courts of appeal?

Appeal as of right to any of the FIVE circuit courts of appeal.

13

What is the juridiction of the Supreme Court of Louisiana?

Original jurisdiction over admission and disciplinary proceedings; appeals of right in constitutional or criminal death penalty cases. All other cases is by write of certiorar or discretionary authority.

14

What is personal jurisdiction?

The legal power of a court to render a personal judgment against a party, independent of any property owned by him.

15

How may a court obtain personal jurisdiction?

1. Service of proceess upon defendant or his agent; 2. Service of Process upon an attorney at law; 3. Consent to jurisdiction; Long-arm jurisdiction.

16

When is the Secretary of State implied by law as agent for service of process for the following?

1. Non-resident motor vehicle operation; 2. Non-resident watercaft operation; 3. Foreign or alien insurer.

17

When will the court appoint at attorney at law to represent the defendant?

On petition or ex parte written motion of the plaintiff when the defendant is: 1. A non-resident or absentee not served with process; 2. Minor or incompetent with no representative.

18

How does the defendant consent to personal jurisdiction?

1. May submit to the court's jurisdiction; 2. Fialure to timely file a declinatory exception for lack of personal jurisdiction.

19

When may a Louisiana court exercise personal jurisdiction over a non-resident? (eight)

1. Specific jurisdiction--if the nonresident acts directly/by an agent as to a cause of action arising from any of the following activities: transacting business in Louisiana; contracting to supply services or things in LA; causing injury or damage by tort committed in LA; tort outside LA, but non-resdient regularly does business or dervices substantial revenue from LA; exercising real reight on ommovable property in LA; non-support of child domiciled in LA to whom support is owed and with whom the nonresident formerly resided in LA; parentage and support of child conceived by nonres while in LA; manufacturing a product or compenent if manufacture could have foreseeen it would eventually find its way into LA by its nature and marketing practices.

20

What is general jurisdiction?

In addition to the grounds of specific jurisdiction, a Louisiana court may exercise personal jurisdiction over a nonresident on any basis consistent with the Louisiana or U.S. Constitution.

21

What are the constitutional limits of long-arm personal jurisdiction?

A defendant must: 1. Have minimum contacts with the forum state; such that 2. No offense of traditional notions of fair play and substantial justice. Minimum contacts generally satisfied if defendant directed activities at forum residents.

22

What happens once minimum contacts has been established?

Burden shifts to Defendant to establish unfairness; e.g., inconvenience or local prejudice. Depends on burden to defendant; state's interest in the dispute; plaintiff's interest in obtaining relief; judicial system's interest in efficient resolution.

23

What is in rem jurisdiction?

The legal power of a court to enforce a right in, to or against property having situs in Louisiana claimed or owned by a nonresident. Situs for immovable and corporeal movables is where the property is physically located.

24

What is quasi in rem jurisdiction?

The legal power of a court to render a money judgment agaisnt a nonresident not subject to personal jurisdiction if the action is commenced by an attachement of his property in the state. Judgment may only be executed against the attached property. Need minimum contacts for proper quasi in rem jurisdiction. Court must appoint attorney at law (curator ad hoc) to represent the nonresident D.

25

What is venue?

The parish where an action or proceeding may properly be brought. An obective to venue is made by timely filing a declinatroy exception of improper venue. Objection cannot be raised by court.

26

Where is venue proper for the following individuals?

1. Domiciled in LA--parish of domicile. 2. Resided in LA, but not domiciled--parish of residence; 3. Nonresident with agent for service of process--parish of agent's P.O. Box address; 4. Nonresident without agent--parish of plaintiff's domicile or where service is made.

27

Where is venue proper for corporations and LLCs?

1. Domestic to LA--parish of its registered office; 2. Foreign and licensed to do business in the state--parish of its primary business office; 3. Foreign and not licensed to do business in state--parish of plaintiff's domicile or where service is made.

28

Where is venue proper for insurers?

1. Domestic to LA--parish of its registered office. 2. Foreign or alien--East Baton Rouge.

29

Where is venue proper for partnerships and unincorporated associations?

Parish of its principal business establishment.

30

What is the effect of change of venue on the general rules of venue?

1Suit may be filed in the aprish for one year after the change, or in the defendant's new domicile. Defendant can cut this off by filing a decalration of intent to change domicile.

31

Where is venue proper for sequestration/action to enforce mortgage or privilege?

May be brought where all or part of the property is located.

32

Where is venue proper for joint or solidary obligors?

Proper to one, proper to all. In a tort suit, an actiona gainst all joint or solidary obligros may be brought where plaintiff is domiciled if one off the defendants is an insurance company and venue is proper as to that company.

33

Where will venue be proper for tort suits?

1. Where damages were sustained; 2. Where wrongful conduct occurred; 3. Where Defendant is domiciled; 4. Suit to enjoin--where wrongful conduct occurred or will occur.

34

Where is venue proper for custody and child support?

1. To obtain custody--parish of a party or last matrimonial domicile; 2. To change custody--parish where custodial parent domiciled or custody decree rendered or where person seeking cusody is domiciled (if person awarded custody no longer in state; 3. To modify support--parish where the person awarded support is domiciled if the award has been registered if that parish, etc.; 4. To reigster support--parish where the person awarded support is domiciled. Court may transfer to another court where it could have been brought on convenience grounds.

35

Where is venue proper on an open account or a promissory note?

1. Open account: parish where account was created or where the underlying services were performed; 2. Promissory note: Parish where the note was executed or the debtor's domicile.

36

Where is venue proper for judicial bond or action against legal surety?

1. Where bond filed; 2. Where principal obligor may be sued.

37

Where is venue proper for an insurance suit?

1. Life insurance policy: parish of decedent's death/where decedent was domiciled; 2. Health and accident policy: where insured was domiciled or where accident or illness occurred; 3. Any other policy: Where loss occurred or insured is domiciled.

38

Where is venue proper on an action on a contract?

May be brought in a parish where the contract was executed OR where any work or service was to be performed.

39

Where is venue proper for an action against a person having business office on matter over which that office had supervision?

Where office is located.

40

Where is venue proper relating o matters of partnership?

1. Action against a partner on a partnership obligation: venue is proper where venue is proper to the partnership (means partner may be sued in a parish other than the partnership's principal business establishment); 2. Actions for dissolution of partnership: venue is proper in the parish where the principal business establishment of the partnership is located.

41

Where is venue proper for an action against a domestic corporation whose charter has been revoked?

May be brought in any place it could have been brought prior to revocation.

42

What is the Louisiana Direct Action Statute?

Plaintiff can sue the insurer directly in Louisiana on any liability policy written or delivered in the state/providing coverage for an accident which occurred in the state. Proper venue for such direct actions are: 1. Occurrence of accident; 2. Where Action could be brought against insured/insurer; 3. Insured must also be joined as a D unless--bankrupt; can't make service of process; claim is between children and parents; insurer is an uninsured motorist carrier; or the insured is deceased.

43

Where is venue proper under a long-arm statute?

Venue is proper in the parish where plaintiff is domiciled or in any parish of proper venue.

44

Where is venue proper for a class action?

Should be brought in the parish of proper venue as to the defendant. In action brough against class of defendants, venue is proepr as to any member of the class named as defendant.

45

Where is venue proper for a shareholder to bring a derivative action?

To enforce a right of a corporation, the action shall be brought in the parish of proper venue as to the corporation or unincorporated assciation.

46

Where is venue proper for quasi in rem action?

May be brought in the parish where the attached property is located.

47

Where is venue proper for actions against the state or political subdivisions?

Shall be brought in the district court where the state capitol or political subdivision is located or the district court having jurisdiction in the parish where the cause of action arises

48

What is the result of improper venue?

If venue is improper, the suit may be dismissed or in the interest of justice, transferred to a court of proper venue.

49

What is the result if venue is proper but does not concern an impartial trial?

Even if venue is proper, the case may be transferred if an impartial trial is not possible in that parish.

50

What is the doctrine of forum non conveniens?

Allows a court to transfer a suit where venue is proper to a parish where suit might have been brought, if necessary for the convenienc of the parties and witnesses and in the interests of justice. However, no suit brought in a parish of plaintiff's domicile,, in a court of competenet jurisdiction, and where venue is proper, may be transferred for forum non conveniens.

51

What is the result of filing suit in the wrong venue for prescription purposes?

Filing suit in the wrong venue will serve to interrupt prescription as to those served if service is made within the prescriptive period.

52

Over what actions can venue not be waived?

1. Action to annul judgment--must be brought in the trial court to annul judgment; 2. Successions--must be brought where decedent was domiciled; owned proeprty (mocable or immovable; 3. Annulment/divorce--must be brought where either spouse is domiciled or parish of last matirmonial domicile; 4. Emancipation--must be brought where a party is domiciled; 5. Tutorship--see other card; 6. Interdiction--must be brought where the interdict is domiciled or where he resides.

53

Where is venue mandatory for tutorship actions?

1. Domiciled in LA--parish where surivivng parent is domiciled/where parent having custoday is domiciled/where minor resides. 2. Parents awarded joint custody--court of the parish where divorce was instituted/or where child resides; 3. Not domiciled in LA--parish where immovalbe or movable property of the minor is located.

54

What are the mandatory grounds for recusal?

A judge shall be recused: 1. A witness; 2. Judge participated in respresentation in the cause; 3. Spouse of party/attorney employed is judge's immediatey family member; 4. Biased/prejudiced/interested in the cause to such an extent he would be unable to be fair and impartial.

55

What are the permissive grounds for recusal?

A judge may be recused: 1. Has been associated with attorney during the latter's employment in the cause (didn't participate in rep); 2. An attorney in the case represents the judge at the time of hearing; 3. Has performed a judiciala ct in the case in another court; 4. Is related to party/soouse of party within the fourth degree; related to attorney/spouse within the second degree; or a judge's immediate family member has a substantial economic interest in the case.

56

What is the procedure for recusing a judge?

1. Judge may be recused on own motion or any party; 2. Judge can recuse himself, or refer the motion to another judge; 3. If judge recused as witness, jduge ad hoc will continue to hear case; if judge recused for any other reason the supreme court will appoint a judge from another district to hear the case.

57

What is contempt?

Contempt is any act or omission tending to obstruct or interfere with the orderly administration of justice or impair the dignity of the court or respect for its authority.

58

What is direct contempt? What are the penalties?

Direct contempt is in immediate view and presence of the corut or failure to comply with a summons or subpoena. 1. Penalty may include $100 and one day in jail; 2. Punished immediately following verbal hearing.

59

What is constructive contempt?

Includes willful disobedience of a court order/deceit by a party or his attorney/improper interference with a juror or witness. 1. Penalty--disobeying a TRO or injunction may get $1000 and one year in jail; 2. Punished following 48 hours notice and hearing.

60

What are the three types of civil actions?

Personal; real; or mixed.

61

What are the three kinds of procedure used in civil actions?

Actions employ iehter ordinary, summary, or executory procedure.

62

May a cuase of action be used as defence even if prescribed?

Yes, may be used as defense if conntected witht eh principal demand.

63

What is the effect of res judicata on civil actions?

A party shall assert all causes of actions arising out of the transaction or occurrence that is the subject matter of the litigation. (Exception is that divorce proceedings not required to raise claims for spousal and child support in action itself)

64

Can a cause of action be transmitted? Can creditors sue heirs? Does an action abate upon death of a party?

1. Unless it is strictly personal, a cause of action may be transmitted to heirs and legatees. 2. Obligations do not die with you; creditors may sue heirs through succession representation. 3. An action does not abate upon the deaht of the party, unless it is a strictly personal right or obligation.

65

Can actions be cumulated by a party?

Actions that are of the same type may be cumulated against the same defendant as long as proper venue and jurisdiction exist.

66

When can a single plaintiff cumulate against a single defendant?

Plaintiff may cumulate against the same defendant two or more actions even though based on different grounds if: 1. Each action is within the court's jurisdiction and brought in the proper venue; 2. Actions are mutually consistent and same form of procedure.

67

When can two or more parties be joined in the same suit as plaintiffs or defendants?

1. Community of interest between the parties joined; 2. Actions within court's jurisdiction and proper venue; 3. Actions mutually consistent and same form of procedure.

68

What is lis pendens?

Suits pending in more than one court on same transaction or occurrence between the same parties in the same capacities. All but the suit filed first must be dismissed, or id the defendant does not not except, the first final judgment shall be conclusive of all. Court may stay proceedigns in second pending outcome in the first.

69

What is abaondment?

If any stage of a proceeding passes for three years without either party taking any steps, the suit is deemed abandoned and will be dismissed. Do not need formal order, but can move ex parte to get it.

70

What are "steps" for the purposes of abandondment?

Taking a deposition; serving requests for production of documents or interroagtories or answers to objections are all steps. Not steps: enry or removal of an attorney or record; supporting or opposing the motion for abandonment.

71

How and when is abaondonment effective?

1. Effective without formal order, but on ex parte motion of any party/affidavit/ the trial court shall enter a formal order of dismissal. 2. Order shall be served by the sherrif and sheriff shal execute a petition of service. 3. A motion to set aside a dismissal must be made within 30 days of the sheriff's service of the order; 4. An appeal of an order of dismissal must be taken with 60 days of the clerk's mailing of the order.

72

What are the special abandondment time periods?

1. JOP courts--one year. 2. Hurricanes Katrina/Rita--five years.

73

What is abandonment for the purposes of a succession proceeding?

The exceptions to when an action has been abandoned are a succession proceeding which has been opened; and adminstrator or executor has been appointed; OR a testament has been probated.

74

When is an appeal abandoned?

An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of appellate court.

75

What are the prerequisitives for a class action?

One or more members of a class may sue/be sued as representative parties only if: 1. Numerosity; 2. Questions of law or fact common to the class; 3. Typtical claims or defenses; 4. Fair and adequate protection of interests; AND 5. Objectively defined class.

76

Once the prerequisities for a class action have been met, what are the three kickers?

1. Separate action would create risk of inconsistent/dispositive in one case; 2. Party opposing class has refused to act in a manner applicable to the class as a whole; 3. Questions of law or fact common to the members predominate ocer any questions affective only individual members.

77

What are the factors that indicate the questions of law and fact predominating are common?

1. Members interest in control; 2. Extent of previously commenced litigation; 3. Desireability of concentrating litigation; 4. Possible difficulties in managing the class action; 5. Practical ability of individuals to pursue their claims; 6. Balance between the relief demanded and the costs and burdens of class litigation.

78

Can certification be obtained based on individual members' proff?

No, a class action shall not be certified for the purpose of adjudicating claims or defenses dependent on their resolution on proof individual to a member of the class..

79

What is the time allowed for making a motion to certify a class?

Motion to certify must be made within 90 days after service of the initial pleading on all adverse parties. Failure to make the motion allows any adverse party to file a motice of the failure to move for certification.

80

Does the court need to provide written findings of fact and reasons for its ruling on the motion for class certification?

Yes, if a request is made within ten days of notice of the order of judgment. Suspensive or devolutive appeal may be taken as a matter of right.

81

What is the requirement for notification to members of a class action?

The best notice practicable is required to be given to all class members, including individual notice to all members who can be identified through reasonable effort. Need to allow time delay during which individual class members can opt out.

82

Can a certified class action be dismissed or compromised without the approval of the court?

A certified class action shall not be dismissed or compromised without the approval of the court exercising jurisdiction over the class. All parties to the action, including class members, shall be permitted an opportunity to be heard.

83

Does the court retain jurisdiction over the creation of the settlement fund?

If the compromise provides for the creation of a settlement fund to be disbursed to/among class members, the court shall retain jurisdiction over the compromise.

84

Is liberative prescription suspended or interrupted upon the filing of the petition?

Liberative prescription is suspended on the filing of the petition as to all class members. Prescription began to run again 30 days from any action on behalf of class members who are excluded/opt out/class has been dismissed.

85

What is the effect of judgment in a class action?

A judgment on the merits concludes all members of the class, whether joined in the action or not, if the members who were joined fairly insured adequate rep of all members of the class.

86

What are derivative actions?

May be brought to enforce a right by a shareholder/partner/or member of a corporation or unincorporated association which refuses to enforce its own right.

87

Can the derivative action be maintained as a class action?

1. May be maintained as class action when joinder of all parties is impracticable. 2. One or more members of the class who will fairly ensure the adequate representation of all members may sue or be sued ina derivative class action on behalf of all members.

88

What must the court consider before any other proceedings in a derivative action?

Court shall consider if the action may be proeprly maintained as a class action before any further proceedings. 1. If proper, class shall be certified; 2. If not proper, then no certification but all shareholders/partners/members who refuse or fail to join as plaintiffs in the action shall be joined as defendants.

89

What are the five elements of a proper petition in a derivative action?

1. Proper party allegation--that plaintiff was shareholder/partner/member at the time of occurrence/atransactions; 2. Allegations are particular about plaintiff's efforts to secure enforcement of the right; 3. Joins the corporation as defendant and the obligor against whom the obligation is sought to be enforced; 4. Includes paryer for judgment in favor of the corporation and against the obligor; 5. Be verified by he affidavit of the plaintiff or his counsel.

90

How is time computed under the La Civ Pro Code?

In all matters under the Code the date of the act/event/or default after which the period begins to run is not counted, and the last day of the period is counted, unless it is a legal holiday.

91

What is joinder?

Joinder is compulsory; cumulation is permissive. A person shall be joined as a party in the action when: 1. In his absence, complete relief cannot be accorded among the parties; 2. He claims an interest relating to the subject matter of the action, and adjudication would impair or impede hsi ability to protect that interest; substantial risk of leaving those already joined with multiple obligations.

92

What are the factors to consider whether to proceed when joinder is unavailable?

1. Extent of prejudice to those already joined in the action; 2. Extent to which prejudice can be lessened or avoided; 3. Whether judgment rendered in the person's absence will be adequate; 4. Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

93

What is required for the capacity to sue?

1. An actual interest in the ligitation is required to be a proper plaintiff.

94

Which persons do not have the capacity to sue?

1. Unemancipated minors do not have the capacity to sue and the father (or mother if father is incompetent) must bring suit. 2. Mental incompetents do not have the capacity to sue, but the defendant must object. 3. Interdicts--curator must bring suit for an interdict unless the suit is brought to end the interdiction; 4. Succession representative--proper plainitff in a succession proceeding. Heirs and legatees need not be made parties.

95

Who is the proper plaintiff in a community property claim?

Either spouse, during the existence of the community, is the proper party plaintiff to sue to enforce a community claim.

96

What are the proper plaintiffs when doing business under a trade name; an unincorporated assoication; or corporations and partnerships; or pledgee?

1. DBA--plaintiff must bring suit in his own name; 2. Officers of an unincorporated association must bring suit for the association; 3. Corporations and partnerships must sue in their own name, except when there are involved in a liquidation, in which case the receiver is the proper party plaintiff; 4. Pledgee of a right is the proper plaintiff to sue to enforce the pledged right.

97

Who is the proper plaintiff in subrogation action?

If the subrogation is partial, both the subroger and the subogee must sue; if the subrogation of such right is total, the subrogee alone must sue. Same rule for assignees.

98

What rules apply for proper party defendants?

Generally, same rule applies for parties plaintiffs; remember the implications of the Louisiana Direct Action Statute.

99

Whos is the proper defendant in suits against unemancipated minors?

1. The father; if he is mentally incompetent, the mother. 2. The court-appointed attorney is the proper defendant if the child is in custody of DSS.

100

Does the partnership also need to be sued as a defendant if the partner is sued personally?

Yes, if the partner is sued personally on a partnership obligation.

101

Who is the proper defendant when suing an unincorporated association?

An unincorporated associated has capacity to be sued in its own name and its members may be sued jointly on an obligation of the association.

102

When shall a court appoint an attorney to represent the defendant? (assuming jurisdiction)

1. Nonreisdent or absentee who has not been served; 2. Unemancipated minor/mental incompetent without a legal representative; 3. Deceased and no succession representative has been appointed. Attorney must prevent a default from being taken.

103

Can a party be substituted upon the death of another party?

His legal successor may have himself substituted on ex parte motion. Legal successors mean: 1. Designated survivors (persons who may bring a survival action); 2. Otherwise, the succession reps or heirs or legatees.

104

Can another party move for substitution? What is the failure to substitute?

Yes on ex parte motion. May result in dismissal of plaintiff's case or appointment of an attorney to represent legal successor to defendant.

105

What are the time limits for substitution?

1. If name and address of the successor is known and the successor is a resident, substitution must occur within thirty days of the summons; 2. If the name and addy is known, but successor is a nonresident, substitution must occur within 60 days from receipt of summons; 3. If successor is unknown, the summors must be published in two publications not less than 15 dats apart in a newspaper published where the suit is pending and substitution must occur within 60 days of the first publication.

106

How is litigation commenced in ordinary proceedings?

Louisian requires fact pleading, and thus the facts pleaded in a petition must set forth a cause of action with particularity. Judgment may grant relief even if not prayed for in the pleading and both the trial and appellate court may render any judgment that is just/legal/proper. Note: allegations of fraud/mistake must be pleaded with particularity.

107

When is a petition filed?

A petiton (or any pleading) is filed when it is faxed to and then received by the clerk (transmits receipt) and if the original signed pleading and fees are frowarded to the clerk within five legal days thereafter. Forwarded if sent within five days, even if not received by the clerk until the sixth day.

108

What are the seven elements required in a petition?

1. Caption; 2. Concise allegations in numbered paragraphs; 3. Signature; 4. Name and domicile of all parties; 5. All causes of actions and material facts of the subject matter of the litigation; 6. Designate an address for receipt of service; 7. Conclude with a prayer for judgment.

109

What does an attorney's signature on a pleading indicate?

The he has read it and to the best of his knowledge, information and belief formed after a reasonable inquiry 1. Not being used for improper purpse/harass/delay/increase costs; 2. Is warranted by the existing law/by a nonfrivolous argument for the extension, modification or reversla of existing law; 3. Likely to have evidentiary support; 4. Each defnial is warranted by the evidence or reasonably based on lack of information or belief. Court may impose sanctions for violation.

110

Should a specific moneyary amount be pled in a petition?

No specific monetary amount may be included in allegations or prayer in an original, amended, or incidental defamand in a tort suit. Allega that claim exceeds or is less than the required amount. 1. A motion to strike is the appropriate remedy for improperly requesting a specific monetary amount of damages. Does not apply to conventional obligations/prom notes/open accounts/alimony or child support--amoutn is reasonably objective.

111

What are the mechanics of service?

Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions. 1. Defendant may execute a written waiver; 2. Service must be on all named defendants within 90 days of the commencement of the action. When a supplemental pleading is filed naming additional defendants, service of a citation shall be requested within 90 days.

112

What determines the effective date for request of service?

When made by mail, it must actually be received by the clerk within 90 days. In other words, the date of receipt, not the date of mailing, determines whether there was a timely request for service.

113

What are the two types of service?

1. Personal--made by sheriff, or, if he fails, after 10 days and diligent effort, by a private person appointed by the court. In serving noice of a summary proceeding (need for speed), the corut can appoint a private perosn upon motion without waiting for sheriff. 2. Domicilary--made by leaving the process at the dwelling or usual place of abode of the defendant, with a person of suitable age and discretion who resides in the domicilary establishment.

114

How is service made on corporations?

Personal service on its registered agent, or, if none, on any officer, director, or employee of suitable age and discretion where the corporation regulary conducts business; failing that, after certifying there was a diligent effort to serve, upon the secretary of state. Serve a bank on its president/cashier/secretary.

115

How is long-arm service made?

Mailing the citation/petition by certified or registered mail or actual delivery to the defendant.

116

How is service made on non-resident motorists?

Service is made on the Secretary of State and mailing notice of service to th defendant, certified or registered mial, return receipt requested, to the address shown in the accident report.

117

How is service made on partnerships?

Personal service is made on a partner/partnership by personal service on a general partner; failing that, on any employee.

118

How is service made on an unincorporated association or a foreign/alien insurer?

1. Unincorporated association--personal service on an agent/managing official/or, failing that, any member; 2. Foreign/alien insurer--serve Secretary of State.

119

Hos is service made on a representaive?

If a court has appointed a representative for a person, that person is served by personal/domicilary service on the representative. When service is proper on a client's attorney, service may be made on the attorney's secretary in the attorney's office.

120

How is service made on a non-party physician or a LLC?

1. Non-party doc--by personal service on any clerical employee of the doctro; 2. LLC--personal service on an agent; failing that; personal service on any mager; or, if nont; any member; or personal service on any employee of suitable age or discretion where business in conducted; or, long-arm service, if applicable.

121

What must be filed to prove service?

After service is accomplished, an affidavit (sheriff's return) must be filed to prove the service. A default judmgnet may not be entered until 30 days after filing sheriff's return under long arm statute, whereas if the defendant fails to respond, default judgment is entered 15 days after sheriff's service of process. Sheriff's return is considered prima facie correct.

122

What are the required contents of process?

1. Certified copy of the petition and citation. 2. Citation must: a. be signed by the clerk of court; b. contain the date of issuance; c. title of the action; d. name of the person to whom it is addressed; e. title and location of the court issuing the process; f. a statement of demand that the defendant make an appearance by filing pleadings, etc., within the specified time.

123

How is service made of a pleading that requires no appearance or answer?

1. Mailing; 2. Hand delivering; 3. Sending by electronic means the pleading to the opponent or the opponent's attorney of record. A certificate of service mustbe filed inoto the record.

124

How is service made of a pleading that does require an appearance or answer?

1. Must be served by the sheriff upon the opponent, their attorney of record, or the clerk of court in the absence of an attorney of record or known address of the opponent. Personal service upon the partner/office associate of the opponent's attorney of record is valid service. If a pleading or order sets a court date, then service must be by registered or certified mail.

125

When may defualt judgment be entered against the defendant, and what are the time limits?

Default judgment may be entered against the defendant if he fails to respond timely. 1. Service within the state--15 days from the service of the petition where service effected within the state; 10 days for city or parish courts. 2. When long-arm statute is used--30 days from filing of affidavit regarding service of petition where the long-arm statute has been used to gain personal jurisdiction.

126

What is the procedure for entering a default judgment?

Once the applicable time period elapses, plaintiff has a preliminary default entered in the minutes of the record. 1. After two days exclusive of holidays, the plaintiff may appear and confirm the default by presenting a prima facie case. A default judgment is then entered; it is a final judgment.

127

What can be presented during a hearing for entering a default judgment?

1. In suits on open account, NSF checks/prom notes/negot. Instruments are submitted with affidavit of correctness; 2. Conventional and delictual obligations, affidavit proof with exhibits can also be used unless the judge orders oral testimony. 3. In personal injury cases, doctor's narrative may be used in lieu of testimony; 4. For divorce, no hearing required unless court orders.

128

Is preliminary default required in city or parish courts?

No, if defendant fails to answer or respond within 10 days, default is confimed on the eleventh day.

129

How does one give notice to defendant?

1. Personal service--notice of default must be mailed by clerk of court to personal service address/last known address; 2. Domicilary service--notice of default must be served by personal/domicilary service; 3. Divorce--no notice of signing of defalut judgment need to be sent to defendant who acknowledges the receipt of petition by affdavit.

130

When is notice of preliminary default required?

1. Notice of preliminary default must be sent by certified mail to counsel of record for defendant, or, if none, to defendant seven days before confirmation of default if defendant made appearance of record in the case. 2. Plaintiff must send a certified copy of the prelim default to the state's agent for service of process by registered/certified mail and file an affidavit in the record stating date of mailing. No answer is filed 15 dats following receipt of notice, prelim default can be confirmed.

131

How long does a defendant have to answer?

1. Defendant as 15 or 30 (under long arm statute) to file his answer in district court (10 days in city or parish court). The state has 30 days to answer. 2. If citation is served through secretary of state, all defendants have 15 days.

132

How long does a defendant have to answer when an exception is filed?

If an exception is filed prior to the answer, then an answer is not required until 10 days after the exception is overruled or referred to the merits, or if the exception is sustained, ten days after the amended petition.

133

What are the contents of the answer?

The answer either admits or denies the allegations of the plaintiff contained in each paragraph of the petition and all allegations not denied (except as to damages) are deemed admitted. Can also deny by stating that he lacks knowledge/infomration sufficient to form a belief in the truth of the allegation. General denials are not used.

134

What affirmative defenses need to be used in the answer?

1. Failure of consideration; mitigation of damages; negligence or fault of the plaintiff and others; duress; error or mistake; estoppel; extinguishment of obligation in any manner; illegality; and fraud must be raised in the answer.

135

What are the three types of exceptions?

1. Declinatory; 2. Dilatory; 3. Peremptory.

136

What is a declinatory exception?

1. This means that the exception declines the jurisdiction of the court. 2. Can be raised on the following grounds: insufficiency of the citation; insufficiency of service of process; lis pendens; improper venue; lack of personal or subjet matter jurisdiction.

137

What is the effect of failing to raise declinatory exceptions?

Objections which may be raised through a declinatory exception, except lack of subject matter jurisdiction and non-waivable status venue, are wavied unless pleaded. Do not need to plead in any particular order.

138

What are dilatory exceptions?

An exception interposed to delay. The grounds for a dilatory exception are: prematurity; want of amicable demand; unauthroized use of summary proceeding; nonconformity with the formalities of the petition; vaugeness/ambiguity in the petition; lack of procedural capacity; improper cumulation of actions; discussion.

139

What is the effect of not raising dilatory exceptions?

All dilatory exceptions must be made timely, and in one motion or they are deemd waived.

140

What is a peremptory exception?

An exception wich it granted will result in dismissal of the suit. Grounds: prescription; peremption; res judicata; nonjoinder of a party; no cause of action; no right of action/interest of plaintiff to institute suit; discharge in bankruptcy. Prescription must be affirmatively alleged.

141

Can a court raise a peremptory exception on its own?

Yes, either at the trial or appellate level, may recognize other peremptory exceptions and dismiss the case.

142

What is res judicata?

A valid and final judgment is conclusive between the same parties; 1. In favor of plainitff--all causes of action are extinguished and merged in the judgment; 2. In favor of defendant--all causes of actions are extinguished and judgment bars a subseuent action action in those causes of action; 3. In any event, judgment is conclusive in any subsequent action between them.

143

What are exceptions to res judicata?

1. Exceptional circumstances; 2. First action dismissed without prejudice; 3. Judgment reserved the right of the plaintiff to bring another action.

144

What is the effect of preclusion by judgment?

A party shall assert all causes of actions arising out of the transaction or occurrence that is the subject matter of the litigation. (Exception is that divorce proceedings not required to raise claims for spousal and child support in action itself)

145

What is the time for pleading exceptions?

1. Declinatory and dilatory--must be raised prior to or in the answer or prior to confirmation of a default judgment. When both exceptions are pleaded, they must be filed at the same time. 2. Peremptory--May be pleaded at any time in either trial or appellate court prior to submission of the case for decision. Appellate court may consider if proof of the objection appears of record.

146

What happens if peremptory exception if filed after answer but before trial?

It shall be tried and disposed of either in advance of or on the trial of the case.

147

What is a peremptory exception is filed after trial?

The court may rule at any time unless the party against whom it is pleaded desires and is entitled to introduce evidence thereone.

148

When may an appellate court consider peremptories?

The appellate court may consider peremptories filed before the case was submitted and may remand for trial of exception of prescription.

149

Can all exceptions be pled simulatenously?

Yes. When any of the three exceptions are pleaded before ot with the answer, they SHALL be tried and decided in advance of the case.

150

What evidence may be used to support exceptions?

1. Declinatory and dilatory--evidence may be introduced to support or controvery any of the objections pledaded when the grounds thereof do not appear from the petition/citation/return thereon. 2. Peremptory--if pleaded at or prior to the trial, evidence may be introduced to support or controvery any of the objection pleaded, when the grounds thereof do not appear from the petition.

151

What happens if plaintiff introduces evidence in opposition to an exception after trial, but prior to submission?

Plaintiff may do so, but defendant may only offer evidence to rebut plaintiff's evidence. No evidence may be offered at any time to support/controvery an exception of no cause of action.

152

What is the result of sustaining a declinatory exception?

If possible, amend the pleadings or transfer the case; depending on the grounds; if failure to timely request service is sustained, court may dismiss/order that service be effected within a specified time.

153

What is the result of sustaining a dilatory exception?

If want of amicable demand is sustained, impose court costs on plaintiff; if other grounds sustained, amend the pleadings; or, if plaintiff fails to comply, dismiss the action, claim, demand, issue or theory subject to the exception.

154

What is the result of sustaining a peremptory exception?

When a peremptory exception is sustained, unless the ground can be cured through amendment or plaintiff fails to comply, the action/demand/issue/or theory will be dismissed.

155

What is a motion for security for costs?

Defendant by ex parte motion may require plaintiff to give bond/other security in amount set by court, and proceedings stop until security is finished.

156

What are incidental demands?

May be filed prior to or at the same time the answer is filed; leave of court is required to file an incidental demand after answer to the main demand is filed. An answer must be filed to an incidental demand, just as if it were an original petition.

157

When will a court have jurisdiction over an incidental demand? Where is venue proper?

If the court woul dhave valid jurisdiction over the incidental demand were it filed separately, it will have jurisdiction over the incidental action. Venue proper to the primary demand will be proper to the incidental demand. Defendant to incidental may only object to venue if it is improper as to principal demand. Intervenotr may not object to venue.

158

What happens if the primary claim is dismissed?

This will not result in dismissal of the incidental demand.

159

Does a person lose his right of action if he fails to assert it in an incidental demand?

No, except when: 1. Compulsory reconventional demand; 2. A defendant or defendant in reconvention will lose his right against a third person if the third person can prove that he had meands of defeating the action which were not used because the defendant did not join him or neglected to apprise him that suit had been brought.

160

What is the jurisdiction of parish and city courts over incidental demands?

If they have jurisdiction over the main demand it may exercise SMJ over any related incidental demand regardless of amount except that when a compulsory reconventional demand exceeds jurisdiction, the court shall transfer the action to the district court.

161

What are the types of incidental demands?

1. Reconventional demand; 2. Cross claim; 3. Internetion; 4. Third party demand; 5. Prescription.

162

What is a reconventional demand?

1. May include any claim, whether related to the primary action or not. 2. The defendant in the principal action (except in an action for divroce) shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the same transaction or occurrence; 3. Third parties may be brought in; 4. If a cause of action arises or is acquired by the defendant in the principal action after the answer is filed, it may still be presented as a reconventional demand. 5. Whne an answer contains a reconventional deman, personal service must be made on the plaintiff's counsel of record.

163

What is a cross claim?

A party may assert a demand against a co-party provided that the demand arose out of the transaction or occurrence that is the subject matter of the original action or of a reconventional demand. 1. Citation is unnecessary, service by sheriff on counsel of record; 2. Persons other than those made parties to the original action may be made parties to a cross claim.

164

When is intervention appropriate?

The intervening party must be seeking to enforce a right related or connected to the object of the pending suit by: 1. Joining with plaintiff in demanding same or similar relief; 2. Joining with the defendant to resist claims asserted by plainitff; 3. Opposing both the plaintiff and defendant.

165

What is third party demand?

The defendant or defendant in reconvention may bring into the lawsuit one who is or may be liable to him in indemnity or contribution for all or part of the principal demand.

166

What is prescription (incidental demand)?

An incidental demand is not barred by prescription so long as it was not barred at the time the maind demand was filed and is filed wihin 90 days of service of the main demand (and for the third party defendant, within 90 days of service of third party demand).

167

What is a motion?

A motion is an application to the court for an order. Must be in writing unless presented in some other pleading or made during trial or hearing in open court. They may be ex parte, if the order sought is one to which the mover is clearly entitled without supporting proof, or contradictory if the order osught is one to which th emover is not clearly entitled or requires supporting proof.

168

What is a motion to strike?

The court on its own motion or that of any party may at any time and after a hearing strike from a pleading any insufficient demand or defense or any redundant, immateral, impertinent or scandalous matter.

169

What is the result of granting a motion for summary judgment?

1. If granted, will result in a final appealable judgment, but if motion denied, there is not immediate right of appeal. 2. Partial summary judgment is allowed.

170

When can a motion for SJ be filed?

Motion may be filed by the plaintiff after the answer has been filed. The defendant's motion may be filed at any time. Motion and supporting affidavits must be served at least 15 days prior to hearing. Opposing memos and affidavitrs must be served at least eight days before hearing.

171

What is D's burden of proof on SJ?

The burden of proof remains with the movant. If movant will not bear BOP at trial, may simply show that there is absence of support on an essential element.

172

What do the affidavits supporting a motion for SJ require?

1. Competent affiant; 2. On personal knowledge; 3. Facts admissible at trial.

173

When may motion for judgment on the pleadings be filed?

May be used by any party after the answer has been filed. Court looks only at the pleadings themselves, and considers all of the mover's undenied allegations, and all of the opponenet's allegations, as true.

174

Can SJ or JOP be granted in a matrimonial controversy?

No, unless agreed by both sides, and both sides are represented by counsel.

175

What is a speical motion to strike?

A cause of action brought against a person who is exercising his rights of free speech on a matter of public issue shall be subject to special motion to strike unless the court determines that the plaintiff has established a probability of success on the claim which determination will be admissible. Defedant can file within 60 days of the service of the petition, and it will be heard within 30 days. Attys costs to prevailing party.

176

When may a party amend the petition?

Plaintiff may amend without leave of court before the answer is served. Otherwise, leave of court/consent is required. An answer to the amended petition is required within 10 days (or within 15 days of the service of the original petition if longer).

177

When may party amend the answer?

Defendant may amend once within 10 days after original answer served. Otherwise, need leave of court or written permission of adverse party.

178

When may exceptions be amended?

1. Dilatory and declinatory--amended prior to hearing with leave of court or written permission of adverse party, bu only to amplify. 2. Peremptory--may be amended at any time, even to plead an objection not originally set forth.

179

When does action or defense relate ack to the original pleading?

If the action/defense asserted in an amended petition or answer arises from the conduct/transaction/occurrence set forth in the original pleading, the amended petition relates back to the original filing date. There are also additional requirements depending on if P or D.

180

What are the requirements for plaintiff when relating back?

1. Defendant knew/should have known of the existence or involvement of the new plaintiff; 2. New and old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; 3. No prejudice to defendant in preparing a defense.

181

What are the requirements for defendant for relating back?

1. Substitued D received notice of suit so there is no prejudice in preparing a defense; 2. Substitued D knew/should have known that but for the mistaken identity he would have been sued.

182

What is a subpoena?

A subpoena, when served, requires the object ot attend a hearing/trial/deposition. Witnesse who reside/work in LA may be subpowened to attend trials/hearings anywhere in the state. Party making out the subpoena is required to pay witnesses residing/employed outside of the prish more than 25 miles from the courthouse.

183

What is a subpoena deuces tecum?

The document comples a witness to bring certain documents, tangible things, or electronically stored information with him. If it is does not name a person, any other person knowing about the docs may appear to give information about them. Can specify form in which electronically stored into is to be produced. Need not produce ESI is more than one form.

184

When may a recipient of a subpoena object?

1. Within 15 days after service, or prior to time specified for compliance, if less than 15 days after service, object to writing. Party can then move to compel and for sanctions.

185

What may parites obtain discovery over?

May obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action. The information sought need not be admissible at trial if information is reasonably calculated to lead to the discovery of admissible evidence.

186

When is a protective order available?

To prevent annoyance; embarassment; oppression or undue burden or expense. Remedies include: 1. Prohbiting discovery; 2. Limiting terms of discovery; 3. Ordering that trade secret or confidential information may not be disclosed without designating the form of disclosure.

187

What are the types of discovery?

Depositions; interrogatories; requests for production of documents; physical or mental exam; request for release of medical records; request for admissions.

188

Where may a deposition be taken?

1. With consent--the deposition may be taken anywhere. 2. Without consent--in-state deponents must be taken either where the court orders or in the parish where the deponent resides/is employed/transacts business in person. Out of state deponents--deposition of nonresident may be taken in accordance with the laws of the foreign state, the deposition of nonresidents temporarily in state may be taken in the parish where he is served with a subpoena/court orders.

189

Is an officer required to certify a record in a deposition?

An officer authorized to administer oaths must certify the record of testimony.

190

How are objections made during a deposition?

All objections will be noted by the officer and the evidence objected to shall be taken subject to the objections. The objections shall be stated concisely and in a non-argumentative and non-suggestive manner. All objections are considered reserved until the trial or other use of the deposition.

191

When may a party instruct a deponent not to answer?

1. Protect a privilege; 2. Enforce a limitation of evidence imposed by the court; 3. Prevent harrassing or repetitious questions; 4. Prevent questions which seek info that is neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence.

192

What objections are waived if not made during the deposition?

1. Objections that could cure the problem, such as objections to the form of the question or responsiveness of the answer, are waived if not made during the questioning. 2. Other objections, such as relevancy, are not waived.

193

What is a motion to suppres?

Errors as to transcription or the deposition is prepared/signed are waived unless a motion to suppress the deposition is made after the defect is/or with due diligence should have been discovered.

194

What is a motion to terminate?

A party or deponent may move to terminate the depositon upon showign it is being conducted in bad faith/annoy/embarrass the deponent or a party. If the deposition is terminated, it can be resumed only on court order.

195

How is a deposition used at trial?

1. Impeachment; 2. Used by Adverse Party for any Purpose; 3. Use of deposition as a witness (witness dies/unavailabe/out of state/more than 100 miles/exceptional circ.); 4. Portions of deposition used by other party.

196

When may a deposition of an expert be used?

After notcie giving other counsel 10 days to object. Objector must pay reasonable expert fees in advance.

197

Can an attorney be deposed?

No attorney of record may be deposed except under extraordinary circumstances by order of the court after contradictory hearing.

198

What are methods of taking the deposition?

1. Oral exam; 2. Telephone; 3. Written questions; 4. Recording testimony.

199

What is the procedure to take depositions in another state or foreign jurisdiction?

Reasonable notice in writing to all parties stating: 1. Time and place of deposition; Names and addresses of deponents. Applications to court for letters rogatory; letters rogatory issued to the appropriate atuhority in the foreign jurisdiction requesting the deponent to answer the letters rogatory.

200

On whom may interrogatories be directed?

1. May be directed to ANY PARTY. 2. Must be answered under oath, or objected to, within 15 days of service. Defendant has 30 days from service of petition and state always has 30. 3. Limit of 35. 4. When answers to interrogatories can be obtained from the business records, including electronically stored information, of a party, that party can specify where in the records the answers may be found and make the records available in lieu of answering the interrogatories.

201

To whom may a request for product of documents and things, or entry upon land, be served?

1. May be served on any party, or as an independent action on a witness. 2. Once served, the adverse party must make all specified materials available for inspection; copying/testing/sampling any designated documents or electronically stored ino; permit entry upon land for the purpose of inspection.

202

How long does a party have to repsond or object to a document request? In what form may a party produce documents?

15 days to respond or object. Defendant has 30 days from service of the petition. 1. Request may specify the form in which the information is to be produced. A party may organize documents, or may produce them as they are kept in the usual course of business.

203

How may a party produce electronically stored information?

If it is not produced in compliance with the request, the requesting party may move to compel; the court may order the responding party to afford the requesting party access to the computers to retrieve the information. Court may limit disclosure by protective order.

204

When may an adverse party be compelled to undergo a physical or mental examination?

An adverse party may be compelled to undergo such an exam only if the phsyical/mental condition of the party is at issue. Exam permitted by MD, vocational rehab expert; or licensed clinical psychologist.

205

What must the examining doc deliver upon conclusion of a physical/mental exam?

A party who has compelled a mental/phsyical exam must deliver a copy of the exam (including the MD's conclusions) to the other parties in interest if requested, but then may request the examined party to deliver reports of any exams he has/may take for the same condition. Waives patient-doc privilege peratining to the disputed condition.

206

How is request for release of medical records accomplished?

1. Any party may serve on any othe rparty a request that he sign a release directing a specific health care provider to release records fo the party who medical condition is at issue. Fifteen days to sign release or object. Once release is obtained, send it to HCP and subject party; within 7 days, of receipt medical records, send copy to subject party.

207

How may requests for admission of facts or genuineness of documents be served?

1. Requests may only be served upon an ADVERSE PARTY. 2. If no answer is made within 15 days, the fact is considered conclusively proved or document is considered exclusively genuine. 3. Party may object to the questions/state that he has no knowledge/admit/deny/state that info is privileged. Cannot state insufficient information without also stating he made reasonable inquirty.

208

What happens if request for admission has insufficient answers?

If answers insufficient, move to determine sufficiency. If a party is forced to prove a fact denied, then costs and attorneys' fees may be recovered.

209

When may a party seek to compel discovery?

A party seeking discovery from one who fails to comply with the discovery request may apply to the court for an order compelling such discovery. Court may also impose sanctiosn for failure to comply with request or the court's order compelling discovery.

210

What sanctions may a court impose to compel discovery?

1. Deem a matter proved; 2. Exclude evidence; 3. Can order contempt; 4. Strike pleadings/dismiss case; 5. Assess costs and attorneys' fees; 5. Absent exceptional cir., no sanctions may be imposed for ESI lost from routine, good faith operation of electronic information systems.

211

What is work product?

Writings or ESI prepared by a party or his attorney (or agent) in anticipation of litigation in preparation for trial are not discoverable unless denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery. Think mental impressions, conclusions, opinions or theories of an attorney.

212

What is the scope of the work product privilege?

Applies only to writing or electronically stored info, not video tapes or other tangible things. Also does not apply to discovery of writings of experts.

213

How is the work product privilege invoked?

Party invoking this privilege must do so expressly and describe the materials withheld with sufficient particularity to enable the party seeking disclosure to assess the applicability of the privilege.

214

What is the effect of inadvertent disclosure on the work product privilege?

Does not constitute waiver if reasonably prompt notice of the inadvertence is given to the recipient. Upon receipt of such notice, recieipt must return or safeguard the materials buy may assert a waiver of the privilege. Even without notice, recipient must return/safeguard the materails if it is clear that the material was privileged and inadvertendly produced, but may assert waiver.

215

Is any type of statement or writing made by a party discoverable?

Yes.

216

What information concerning testifying experts is discoverable?

The name of an expert a party expects to call as a witness at trial is discoverable. The court may order (on motion or sua sponte) that party to produce a written report signed by the expert which must include the expert's opinions and reasons therefor and any date/info upon which those opinions are based.

217

What must the written expert report contain?

Exhitibs; qualifiacations; publications of previous ten years; compensation for expert services; and cases in preceding four years in which she has testified as an expert. Report must be filed at least 90 days before trial, or, if used for rebuttal only, within 30 days after the opposing side's expert is disclosed. Facts known by testifying experts are also discoverable, but only after the expert's report is provided.

218

When are drafts of an expert's report and communications discoverable?

Only upon a showing of excpetional circumstances--this includes notes and electronically stored info that reflect the mental impressions or trial stratefy.

219

What information concerning non-testifying experts is discoverable?

Facts and opinions of experts retained but not expected to testify at trial are only discoverable in exceptional circumstances unless the expert is an examining physician.

220

When may a party demand a hearing to determine the qualifications of an expert?

Not later than 60 days before trial a party may file a motion for a pretrial hearing to determine whether a witness qualified as an expert or whether his methodologies are reliable. A contradictory hearing and ruling on the motion must occur at least 30 days before trial.

221

What are the requrirements of the Daubert ruling?

A ruling from the bench must recite findings of fact/conclusions of law/reasons for judgment; or, if taken under advisement, the court must provide these not later than five days after hearing; or, if the parties consent, with court approval, that the motion can be hearind and the ruling made any time before trial.

222

Is a Daubert hearing inapplicable to certain types of actions?

Not applicable to divorce/annulment/separation/partition/successions or manners ancillary thereto.

223

Is anyone entitled to costs at the conclusion of a Daubert hearing?

Court costs and reasonable expert witness fees and costs associated with the motion may be assedded, within the court's discretion, to the losing party.

224

Is there a duty to supplement responses which were complete when made?

No. Exceptions: 1. Any question regarding identity/location of persons with knowledge of discoverable matters and expert witnesses and the subject of their testimony. 2. Information that renders previous response incorrect. 3. Court order or agreement of parties.

225

Are interrogatories, requests for production, requests for admissions, and responses filed in the record?

Not filed in the record unless needed to argue motions to compel, for trial or appeal, but party who serves them acts as custodian. Considered a step even if not filed.

226

What types of subpoena deuces tecum need to served on the person also?

SDT requiring production or records of a bank/savings and loan/credit company shall not be enforceable unless also served on a person whose records are sought.

227

Who is deposed when a corporation is sought for a deposition?

When a corporation is deposed, it has a duty to provide deponents who are qualified to answer the questions posed. Organization shall designate the appropriate officers/person to testify.

228

What happens as the result of the pretrial conference?

The court shall render an order regarding the results of the conference which shall control the subsequent action. If a party's attorney fails to attend the PRC prepared to participate in good fatih, the court may sua sponte make orders as are just. The court may alos sanction the attorney.

229

When may a party make a mption for judgment on offer of judgment?

Thirty days or more before the trial a party make make a written offer to settle all claims with an adverse party without an admission of liability. If the offer is accepted, any party may move for judgment on the offer within 10 days after service. If the offer is not accepted, it shall remain inadmissible except to determine if the offeree must pay offeror's expenses for not accepting.

230

What is the result of not accepting the offer of judgment?

1. Final judgment obtained by plaintiff is at least 25% less than amoung of offer--need to pay offeror's costs, exclusive of attorneys fees, incurred after the offer was made. 2. Final judgment obtained by defednant is at least 25% greater than offer--need to pay offeror's costs, exclusive of attorneys' fees.

231

When is a judgment on offer of judgment final?

When signed by judge. An appeal cannot be taken by a party who has consented to the judgment.

232

When may trials be consolidated?

Common issues of law and fact incolved ine ach case. Contradictory hearing required. Cases will not be consolidated if: 1. Jury confusion; 2. Prevent a fair and impartial trial; 3. Give one party an undue advantage; 4. Prejudice the rights of any party.

233

When may a court order separate trials?

In a jury or nonjury trial, the court may order separate trials on the issues of liability and damages, with consent of the parties, if it will simplify the proceedings, permit a more orderly disposition of the case, or otherwise be in the interest of justice. Court may hold prior trial on the issue of insurance covereage.

234

When does a court give priority to old people?

Priority to parties who present medical documentation that they will not survive beyond six months.

235

When may a court grant a continuance?

1. Discretionary--for any good ground therefor. 2. Peremptory--1. Party is unable, with due diligent, to obtain material evidence; A material evidence has absented himself without the contrivance fo the party requesting the continuance.

236

What is the order of a trial?

1. Plaintiff's opening, then defendant's; 2. Plaintiff's evidence, then defendant's; 3. Plaintiff's rebuttal evidence; 4. Plaintiff's argument, then defendant's; 4. Plaintiff's rebuttal. Court may alter the order.

237

When may a court order live trial testimony by video?

Upon a showing of appropriate safeguards, the court may order live testimony by video if the witness is beyond the subpoena power of the court. Order may be entered at pretrial conference, or, in exceptional circumstances, after hearing at least 10 days prior to trial or at another time that does not prejudice the parties.

238

When may a plaintiff obtain voluntary dismissal?

A plaintiff may obtain voluntary dismissal without prejudice prior to any appearance of record by defendant; following appearance of D in the record, the court may decline to grant dismissal except with prejudice.

239

When may a plaintiff obtain involuntary dismissal?

May be granted if plaintiff fails to appear for trial. If it is claimed that there is a pending settlement, either party may reinstate the suit within 60 days of receipt of the notice of dismissal.

240

When is a motion for involuntary dismissal allowed in a non-jury trial?

A party may move for involuntary dismissal after cloase of plaintiff's case on the ground that plaintiff has shown no right to relief upon the facts and law.

241

What happens if service is not requested upon 90 days of commencing the action?

A judgment of dismissal without prejudice shall be rendered as to a defendant by contradictory motion or upon sustaining a declinatory exception filed by the defendant unless good cause is shown why service could not be requested.

242

Is there always a right to a trial by jury?

In all cases except: 1. Claim does not exced $50,000; 2. Suits on prom notes without forgery/fraud/error; 3. Habease/summary/executory/probate/partition/mandamus/concursus/workers comp/filiation/emancipation/tutorship/interdiction/annulment/divorce proceedngs; 4. Custody or visitation; 5. Admin appeal; 6. Admiralty; 7. Suits against a political subdivision.

243

When must a jury request must be made? What must accompany the jury request?

1. Either side may request a jury; 2. The request must be made within ten days fo the filing of the pleadings that raise an issue triable by a jury (granting of another party's motion to withdraw a jury demand); 3. A bond or cash depost; must also pay $150 jury filing fees.

244

Can a party request jury trial on only particular issues? Who reviews denial of a jury demand?

1. Yes, party may request trial on only particular issues, and if so, the other parties can designate any other issues triable by jury; 2. Review of a denial of jury trial is by supervisotry writ; if irreparable injury is present, by appeal of interlocutory judgment.

245

How many peremptory challenges does a jury of twelve get? Jury of six?

1. Twelve--each side has six peremptory challaenges, and up to four additional challenges if multiple parties. 2. Six--each side has three peremptory challenges and up to two additional challenges if multiple parties.

246

What are challenges for cause?

1. Juror lacks legal qualifications; 2. Has formed an opinion or is otherwise not impartial; 3. Relations between juror and party or attorney would influence juror; 4. Juror has been on jury hearing same or similar case (same facts); 5. Juror takes the fifth on voir dire.

247

What are the legal qualifications for jurors?

18 years old; resident of Louisiana and U.S. citizen; can read/write; no felony conviction.

248

What is the time and method of challenging jurors via peremptory challenges?

After voir dire, the court may excuse the juror, then either party may challenge for cause, then parties alternate declaring a peremptory challenge, which is made in side bar conference. After entire jury has been accepted and sworn, no party may make peremptory challenges.

249

When may challenges for cause be made?

After the jury is sworn, a juror may be challenged for cause by either side, or be excused by court for cause by consent of both sides. Challenges for cause may be exercised up to the taking of evidence.

250

May jurors take notes during the trial?

Jurors may take notes and use them during jury deliberations. Juror notes will not be preserved for review on appeal and shall be destroyed immediately upon the return of the verdict. Also: Jury may review testimony or evidence in the courtroom after notice to parties.

251

How many jurors are needed to render a verdict?

1. If jury has twelve people, nine are needed for the verdict. 2. If there are six jurors, five are needed for the verdict. Note: Parties may stipulate for lesser number of jurors to reach the verdict. May also stipulate if one/more jurors dies, the remaining jurs can decide case/number that must concur.

252

What are directed verdicts?

Directed verdicts may be made by motion at the close of the other side's case. Motion must contains statement of grounds for making such motion. Standard for granting: facts and inferences are so overwhelminly in favor of the moving party that reasonable persons could not reach a contrary verdict.

253

What is JNOV?

Think of it as a delayed motion for a directed verdict. Must be filed within seven days (exclusive of holidays) from mailing or service of notice of signing of judgment. If there is no verdict, within seven days of jury discharge.

254

What is the standard for granting JNOV?

After considering all evidence in the light most favorable to the non-moving party, the facts and inferences are sto strongly and overwhelmingly favor one party that reasonable persons could not reach a contrary result. If there is substantial evidence of such quality and weight that reasonable persons might reach a different conclusion, the motion should be denied.

255

What is the court's options on motion for JNOV?

The court may let the verdict stand; grant the JNOV; order a new trial. If granted, the party whose verdict is set aside has seven days to request a new trial. JNOV can be granted on liability/damages/both.

256

What is remittitue and additur?

On issue of quantum (damages) when verdict clearly contrary to weight of evidence and a new issue could be granted on that basis alone and quantum is clearly separable from the other issues. Judge requests P/D to consent to the change as an alternative to granting a new trial. 1. Court must believe that a new trial should be granted; 2. Party entitled to new trial must agree.

257

What is an interloductory judgment?

1. Does not determine the merits. 2. Appeal may only be taken from an interlocutory judgment if irreperable injury can result from granting the judgment. Otherwise, one must seek a supervisory write or seek appellate review after trial on the merits.

258

What are the requirements for a final judgment?

1. Must be signed by the judge; 2. In all contestcase cases, clerk must mail the notice of signing of judgment to all counsel of record/unrep party and file a certificate of mailing in the record.

259

When may a final judgment be amended?

A final judgment may be amended by the trial court at any time to correct errors of calculation or to alter the phraseology but NOT THE SUBSTANCE.

260

When may a final judgment be rendered? (All issues have not been adjudicated)

1. Dismisses the suit as to less than all the parties; 2. Grants a motion for judgment on the pleadings; 3. Grants a motion for summarry judgment; 4. Judgment signed on principal or incidental demand; 5. Judgment signed on issue of liability.

261

What are partial judgments?

Not appealable. 1. When the court renderes a partial judgment or partial summarty judgment/sustains an exception in part. Shall not constitute a final judgment unless designated as a final judgment by the court after an express determination that there is no just reason for the delay.

262

What happens in the absence of determination of final judgment?

Any order adjudicating fewer than all claims of rights/liabilities of fewer than all the parties shall not constitute a final judgment for purposes of an immediate appeal.

263

What is the result of a partial judgment on the trial court's jurisdiction?

If an appeal is taken from a partial judgment, the trial court shall retain jurisdiction to adjudicate the remaining issues in thee case.

264

Does the court need to issue findings of fact and reasons for judgment in non-jury cases?

In all appealable contested cases, other than jury trials, the court shall issue written findings of fact and reasons for judgment if requested by a party within ten days of mailing of the notice of signing of judgment. If non-jury personal injury cases, the court is required to issue findings of fact, but not reasons for judgment.

265

How long does a court have to prepare a judgment in a jury trial?

After a jury trial, the court must prepare and sign a judgment in accordance with the verdict or order counsel to prepare and submit a judgment for signature within 10 days of the verdict.

266

How long does a court have to issue a judgment on a compromise agreement?

When the parties reach a compromise agreement which is recited into the record, the court may order counsel to prepare and submit a judgment for signature within 20 days of the recital.

267

What is a declaratory judgment?

A type of final judgment. These may be sued for the purposes of determining rights before a contract has actually been breached. Cannot prejudice persons not made parties to the proceeding.

268

On what grounds may a motion for a new trial be granted?

May be granted on contradictory motion of party or court on its own motion. 1. Peremptory grounds--1. Verdict clearly contrary to law and evidence; 2. Discovery of new evidence which could not have been discovered with due diligence before/during trial; 3. Juror was bribed or compromised. Verified affidavit required for 2/3. 2. Discretionary grounds--if there is good ground therefore.

269

When must a motion for a new trial be filed?

Seven days excluding holidays from mailing or service of notice of signing of judgment. Standard: Trial judge is free to evaluate the evidence without favoring either party; draw his own inferences; grant if clearly contrary to the law and evidence.

270

What is an annulment for vices of form?

A final judgment shall be annulled for vices of form at any time if rendered against an incompetent not represented as required by law; against one not properly served; one who has not waived an objection to jurisdiction; valid judgment of default has not been taken; or judgment was rendered by court lacking SMJ. May be asserted at any time and collateral (on appeal). Must be brought in trial court that rendered judgment.

271

What is an annulment for vices of substance?

A final judgment obtained by fraud or ill practices may be annulled. A suit to annul for vices of sbustance must be brought within one year of discovery. Must be asserted in a direct action; cannot be asserted on appeal. Reasonable atty fees may be awarded to prevailing party. Must be brought in trial court that rendered judgment.

272

When may an appeal be taken?

An appeal may be taken from a final judgment whether rendered after hearing or by default, or from a judgment reformed in accordance with a remittitu or additur. An interlocutory judgment is appealable only when expressly provided by law.

273

How are non-appealable judgments/orders reviewed?

May be reviewed under the appellate court's supervisory writ procedure. An appeal cannot be taken by a party who confessed to judgment in the trial court or who voluntarily acquiesed in the judgment.

274

What is the scope of appellate review?

May review both the law and facts in civil matters. Can only review the law in criminal matters. Fact findings will not be disturbed unless there is manifest error. Law findings will be reviewed by determining whether they are correct or incorrect.

275

What is the effect of an evenly split en banc panel?

When an en banc panel is evenly split and no majority concurs to reverse or modify the trial court judgment, the effect is to affirm the trial court judgment.

276

What is the prodcure for a writ of certiorari?

1. A writ of certiorari is an application to review the judgment of a court of appeal/objection to candidancy or election contest. Must be filed within 30 days of mailing of notice of judgment and opinion by court of appeal or within 30 days of mailing of motice of denial of timely filed application for rehearing to the court of appeal.

277

What is the procedure for a supervisory and original writ?

It is an application based on the supreme court's constitutional authority and directed at reviewing or staying the action or inaction of a trial court. Must be filed in the court of appeal within reasonable time set by the trial court, not to exceed 30 days from the date of ruling at issue.

278

What is a devolutive appeal?

One where you appeal the execution of judgment. If you take this appeal, there may be execution of the judgment during the time the appeal is pending. Must be taken within 60 days: 1. Motion for a new trial/JNOV; 2. Motion for a new trial or JNOV is denied; 3. Commencement of dealy; 4. Interruption because of removal to federal court. No bond required. An order of appeal is premature is granted before the court disposes of all timely filed motions for new trial or JNOV.

279

What is a suspensive appeal?

This type of appeal will suspend the execution of judgment during the time the appeal is pending. Must be taken within 30 days of: 1. Motion for new trial/JNOV; 2. Motion for new trial/JNOV denied; 3. Interruption because of removal to federal court; 4. Interruption until the security is fixed; 5. Interruption because supervisory writ to review security. Premature if granted before the court disposes of all timely filed motions for new trial/JNOV.

280

What bond must accompany a suspensive appeal?

1. When the judgment is for a sum of money, security shall be equal to the amont of the judgment including interest until the security is furnished; 2. When the judgment distributes a fund held in the court's registry, the security must only cover costs; 3. In all other cases, the court shall fix security sufficient to assure satisfaction of the judgment together with damages for the delay resulting from the appeal. 4. If a surety bond if used, for good cause the court may order bond in amount up to 150% of the judgment. 5. When the appeal bond has not been timely filed, the trial court can convert the suspensive appeal to a devolutive appeal (exception in eviction)

281

What appeals exists in divorce cases; what appeals exist in custody and alimony cases?

1. Divroce--only suspensive appeals. 2. Custody/alimony--only devolutive appeals.

282

What is the method of appealing the order from the trial court?

1. Obtaining an order from the trial court within the delay allowed upon oral motion in open court/written motion/petition. The order of appeal shall state the return date and the amount of security (if suspensive appeal). 2. The 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. 3. Appellants must pay the costs within twenty days of the mailing of the notice or the trial judge may dismiss the appeal.

283

When must an appellee answer an appeal?

Appellee need not answer an appeal unless he desires that the judgment be modified/revised/reversed in party/or unless he demands damages against the appellant. Answer--delay is 15 days from later of return day or lodging of the record of appeal.

284

What is the return day?

30 days from the date estimated costs are paid, if no testimony is to be transcribed; 45 days from the date such costs are paid, if testimony is to be transcribed, unless the trial court fixes a lesser period. Only one extension allowed.

285

Can an appeal be dismissed because of an error in the record?

No, an appeal will not be dismissed because the record is missing/incomplete/in error, no matter who was responsible. An Appeals will not be dismissed b/c of any other irregulatiry, unless it is imputable to the defendant.

286

When must a motion to dismiss an appeal be filed?

A motion to dismiss the appeal must be filed within three days, exclusive fo holidays, of the return day or lodging, whichever is later. This includes a fate filed suspensive appeal bond.

287

What grounds justify dismissing an appeal?

Consent of the parties; lack of appellate court jurisdiction; no right to appeal; or abandonment are all valid bases for dismissal of an appeal, at any time.

288

When can you file an application for rehearing of an appeal?

Apply within fourteen days of the mailing of the notice of judgment/opinion by the court of appeal. Within 30 days of the mailing of notice judgment and opinion of the court of appeal a party may apply to the supreme court for a write of certiorari.

289

When is a court of appeal judgment final?

Judgment is final if neither an application for a rehearing nor an application for writ of certioarir to the supreme court is timely filed.

290

Can you appeal from a TRO?

No. Appeal from an order regarding a preliminary injunction and any bond must be filed within 15 days from the order.

291

What are the steps for execution of money judgments?

1. Wait until time for taking a suspensive appeal has run to execute; 2. File for and receive a writ of fifa which directs the sheriff to seize and sell the defendant's property (may seize within one year); 3. Serve written notice of seizure on the debtor and occupants by personal or domicilary notice. 4. Sheriff must also file notice of seizure with recorder of mortgages (Mennonite notice) and file affidavit with the clerk showing who got notice. 5. Property can then be sold at public auction. 6. Purchaser only pays amount in excess of any security interest or mortgage on property; 7. Once property is sold, sheriff distributes funds; 8. Sheriff then passes act of sale.

292

When can property be sold at public auction?

1. Debtor has the right to choose the order in which items will be auctioned except that a judgment creditor can direct the sale of mortgaged/privileged property. 2. Notice of sale must be given in an ad in a local newspapers: movables--ten days before the sale. immovables--first one at least 30 days before and the second at least seven days before. 3. Property must bring 2/3 of its appraised value, or second sale is had for sale at any price. 4. If the price bid at the second offering is insufficient to pay sheriff's fees plus all liens superior to that of seizing creditor, property shall not be sold.

293

How can wages and bank accounts be garnished?

May be garnished through a writ of fifa. 1. File and request write of fifa; 2. File petition for garnishment and garnishment interrogatories; 3. Serve citation/petition/interrogatories; 4. Garnishee has 15 days to answer interrogatoires, failure to answer is prima facie proof garnishee has the property; 5. Court orders garnishee to deliver the property or pay indebtedeness; 6. If wages are garnished, the first 75% of disposable earnings is exempt from seizure.

294

What is a judgment debtor examination?

An unpaid judgment creditor may serve a judgment debtor rule on the debtor and require him to disclose his assets. On motion of the judgment creditor, the court may permit deposition of a third party to aid in execution of judgment.

295

What is the procedure for a judgment debtor rule?

1. File motion for examination of judgment debtor; may include request for debtor to bring financial materials; 2. File in the court which rendered the judgment; 3. Court orders JD to appear in court with records not less than 5 days from the date of service of the motion/order on JD or his counsel; 4. JD appears and is questioned under oath; 5. Costs of exam tasked to debtor unless court determine exam unnec.

296

What property is xempt from procedure for satisfcation of money judgments?

First 75% of judgment debtor's disposable earnings; tools; instruments and books; one utility trail and one firearm with maximum valuse of $500 necessary to trade/profession, $7500 in equity in one car; personal servitude of habitation; wedding or engagment rights up to $5000 and federal earned income tax credit.

297

What is the period of time in which a money judgment may be revived?

May be revived at any time before it prescribes (10 years) by an interested party by the filing of an ex parte motion brought in the court and suit in which the judgment was rendered. Filing of the motion to revive interrupts the 10-year prescriptive period.

298

How is judgment for possession rendered?

A judgment of possession is executed by a writ of possession which directs the sheriff to deliver movable property to compels the party in possession of immovable property to vacate.

299

What is a writ of distringas?

If a judgment orders delivery of a thing which the sheriff cannot seize because D has concelead/removed it from the jurisdiction of the court/judgment refuses to comply with order to refrain from doing act, a writ of distringas can be used to distrain the property of defendant/hold in contempt.

300

How is judgment for specific performance enforced?

If a judgment is for specific performance/court may direct the sheriff or some other person to perform the act with the same effect as if done by the party, at the cost of the disobedient party.

301

How are foreign judgments executed?

1. Ordinary process; or 2. Enforcement of Foreign Judgments Act--a. Annex authenticated copy of foreing judgment to ex parte petition and file affidavit with last known address of the judgment debtor and the judgment creditor; b. Clerk sends notice to debtor; c. 30 days after mailing, execute the judgment.

302

How are judgments of other Louisiana courts made executory?

File an ex parte petition annexing a certified copy of the judgment and praying that the judgment be made executory. Court will immediately render and sign the judgment and enforcement proceeds.

303

What are summary proceedings?

Summary proceedings are those conducted with rapidity, within the delays allowed by the court and without citation and observance of all the formalities required in ordinary proceedings.

304

Whatmatters may be disposed of in summary proceedings?

Incidental actions; application for a new trial; exceptions/contrary motions/rules to show cause; action against a surty on a judicial bond; habeas corpus/mandamus; rank of mortgages; child custody/alimony/support; action to annul a probated testament; action for a written accounting; action for dissolution or specific performance of a compromise; all othe rmatters.

305

How are summary proceedings commenced?

Filing a contradictory motion or a rule to show cause; or by a petition if it is a habeas corpuse/quo warranto/mandamus proceeding.

306

What is executory processs?

Under the rules of executory process, there can be rapid foreclosure and certain property may be sold without obtaining a personal judgment against the debtor. Venue is the parish where the property is located or where venue is proer under general venue rules (individuals/corps/partnerships)

307

What is needed for executory process?

1. A mortgage or privilege executed by authentic act (notary + two witnesses) or 2. A security agreement under Ch. 9 containing a confession of judgment clause. If movable property, may be by private signature duly acknowledged or by authentic act.

308

What is the procedure for executory process?

File a petition for executory process praying for seizure and sale and include all authentic evidence. An executory proceeding may be brought against the SS (without naming heirs); heirs or legatees (if mortgagor is dead) or the attorney appointed to represent an absentee or a succession/or a corp/partnership.

309

What happens after the petition for executory process has been filed?

1. Sheriff seizes the property and the defendant must be given written notice of the seizure. 2. Sheriff provides Mennonite notices as with seizures under a writ of fifa. 3. Debtor's only recourse is to seek to enjoin the seizure, or, a suspensive appeal.

310

When can a debtor enjoin a seizure pursuant to executory process?

1. An injunction can be granted upon showing: 1. Debt has been extinguished; 2. Debt is uneforceable; 3. Proper executory process procedure has not been followed. 2. Suspensive appeal--can be taken by the debtor within 15 days of the signing of the order directing issuance of the writ of seizure. (required bond to be posed)

311

When can one raise claim that stipulated attorneys' fees are unreasonable in executory process?

Claim that atty fees stipulated in the mortgage or privilege are unreasonable is not grounds for injunction but must be raised by rule to show cause filed at least 10 days before the sale, and heard after sale, or as defense to deficiency judgment proceeding after sale.

312

How is the auction of property seized under executory process conducted?

Auction is run according to the rules provided for foreclosure sales under execution of a judgment (writ of fieri facias), except that the proeprty need not be appraised if appraisal is waived in the mortgage. Seized property subject to the LLC need not be appraised prior to sale.

313

Who need to be given notice prior to the sale re: executory process?

Prior to the sale, the seizing creditor should give notice to all junior lienholders (and property owner if different from mortgagor) of the seizure and sale.

314

What happens if the mortgagor sells the seized property to a third party?

Third party's rights are to pay the debt, enjoin the sale, or that mortgage not record, or intervene to claim proceeds equal to improvement of the property.

315

What is a deficiecny judgment?

A deficiency judgment is obtained by suit to collect the balance due if the proceeds from the sale fo the debtor's property IN AN EXECUTORY PROCEEDING ONLY are insufificent to satisfy the debt. Does not apply to Ch. 9.

316

What are the requirements for a deficiency judgment?

Generally, an appraisal must have been made or the creditor's right to a deficiency judgment is waived, unless the non-appraisal sale was made through major stock exchange/foreclosure was pursuant to a mortgage in a commercial transaction.

317

What is the procedure for obtaining a deficiency judgment?

1. Convery executory proceeding into an ordinary proceeding, or file a separate suit. 2. Ordinary process applies.

318

Can debtors raise affirmative defenses to a deficiency judgment?

Yes, but they may not raise defects in executory process as a defense.

319

What are special proceedings?

A proceeding bringing in two or more persons having competing claims to money or property and requiring them to assert their claims. Concursus=LA interpleader. Venue is proper in any parish where venue is proepr as to any claimant, except that actiosn involving immovables must be brought where the immovable is located. Every defendant is consdiered a plaintiff.

320

What is attachment?

A writ of attachment may be obtained when the plaintiff claism an interest in property and the defendant is concealing himself to aovid services of citation, or disposing of or granting a security interest in proeprty to give an unfair privilege to one creditor/leaving the state to avoid execution of a judgment. Security is required for the amount of the claim.

321

Can a write of attachment be applied to a nonresident?

May also be obtained when the D is a nonresident who has no duly appointed agent for service of process in the state. When this is the ground for the writ, venue is the situs of the property.

322

What is a writ of sequestration?

May be obtained when the plaintiff claims to own/possess/have a privilege/mortgage/security interest on the property seized and it is within the power of the defendant to conceal/dispose of/waste/remove the property from the parish. Neither property attached nor property sequestered may be sold before final judgment.

323

What is the amount fo sexuirty required for a writ of sequestration?

Security in the amount to compensate defendant for wrongful seizure must be furnished, but no security is required to enforce a lessor's privilege.

324

What is the result of a creditor seizing property under attachment or a sequestration?

He acquires a privilege on it from the time of seizure if he obtains a final judgment in his favor.

325

When can a court issue an injunction?

Upon application by petition, when irreperable injury/loss/damage may otherwise result to the applicant. Irreparable injury means that one cannot be compensated by money damages.

326

When may a court issue a temporary restraining order without a contradictory hearing?

1. TRO may be ranted without notices and expires within 10 days. 2. For good cause shown, a restraining order may be extended by the court. File verified petition and attorney certification regarding efforts to give notice.

327

When can a TRO be issued in context of divorces?

In a suit for divorce, a TRO issued in connection with a rule to show cause for prelim inj prohibiting spouse from disposing/encumbering community property/harming the spouse or a child/removing a child from the court's jurisdiction remains in force until a hearing on the preliminary injunction.

328

What are the requirements for a preliminary injunction?

A preliminary injunction requires notice and hearing, and trial on its merits. The hearing must be scheduled not less than two nor more than 10 days from service of notice.

329

What is a permanent injunction?

Comes after full trial on the merits.

330

Can you appeal from a TRO or other injunction?

1. Cannot appeal from a TRO. 2. An appeal may be taken from a judgment relating to a preliminary injunction within 15 days of written judgment. 3. An appeal may be takened from a judgment related to a final injunction according to normal rules of appellate procedure.

331

What is a petitory action?

A petitiory action is one in which the plaintiff seeks a judgment declaring that he is the owner of the property. 1. Plaintiff must not have possession at the time of filing the suit AND 2. Defendant must be in possession or assert that he owns the property. Situs provides the proepr venue. If the defendant is in possession, the plaintiff is required to prove that his title is good against the world.

332

What is plaintiff's burden of proof on a petitiory action?

1. If D is in possession--plaintiff must prove that he acquired ownership from a previous owner/by acquisitive prescription. 2. If D is not in possession--plainitff must prove that he has better title than Defendant.

333

What is a possessory action?

A possessory action is used when the plaintiff is in possession but is being disturbed. The disruption can be either in fact (physical act) or in law (recordation).

334

What is plaintiff's burden of proof on a possessory action?

1. Plaintiff has possession of immovable/real right; 2. Plainitff has had quiet, uninterrupted possession for more than one year; 3. Distrubrance of possession in fact or law; 4. Action instituted within one year of disturbance.

335

What are important notes for possessory actions?

1. Possessory and petitory actions may not be cumulated; 2. If the defendant asserts that he is the true owner, the action is converted into a petitory action; 3. Judgment notifies D that he has 60 days to assert ownership in a petitory action or be precluded from ever asserting ownership; 4. Damages may be sought.

336

What is the appeal period for possessory actions?

1. Suspensive--the loser has 30 days in which to take a suspensive appeal; 2. Devolutive--the loser has only 30 days in which to take a devolutive appeal (unlike usual 60)

337

What is a hypothecary action?

An action to enforce a mortgage by executory or ordinary process?

338

What is a boundary action?

An ordinary action to fix boundaries between landowners.

339

What is notice of penddency of action?

Special type of notice of lis pendens applicable to actions pending in a Louisiana court, state or federal, affecting title to, or asserting a mortgage or privilege on immovable property. The purpose is to give third parties notice of the pending action.

340

What is the procedure for notice of pendency of action?

1. Written notice, signed by the party or cousnel filing the notice, setting forth the names of persons against hwom it is to be effective and object of demand; File notice with record of mortgages for parish where the property is situated. Notice expires after ten years; may be reincribed for additional five years. 2. If judgment is rendered in the action against the party who filed the notice of lis pendens, the judgment shall order cancellation of the notice at the expense of the party who filed it.

341

Where must succession be opened?

Unless the decedent does not have a Louisiana domicile, all successions must be opened in the parish of the decedent's domicile. If decedent is non-domicilary, succession may be opened in any parish where the decedent has immovable proeprty or if non, in any parish where the decedent's movables are located. Rules of jurisdiction, not venue.

342

What is the procedure to prove the will?

1. Any person with an interest in the will may request probate. 2. File petition praying that testament be probated and executed; attach the affidavit of death/domicile/heirship and present the will. 3. If will cannot be found, file petition for search where appointed notary looks for the will. If will cannot be found--intestacy. 4. Prove will be affidavit unless court wishes to hear testimony. 5. Proces-verbal preparated--public inventory of succession property taken by a court-appointed notary in the presence of two witnesses. 6. The will is then ordered record, filed, and executed.

343

How are wills proved by affidavit in a probate proceeding?

All wills in a form valid may be proved by affidavit. 1. Olographic wills--two credible witnesses identify handwriting; 2. Notarial testaments--do not need to be proved. Upon production, court orders it filed and executed and the order has the effect of probate.

344

What happens if an ex parte probate is challenged?

Contradictory hearing; burden of proving the authenticity and requisites of the will is on the proponent of the will.

345

Who has the burden of proof on notarial testaments/noncupative testament by public act/statutory testament?

Plaintiff always has the burden of proving the invalidity of a notarial testaments/noncupative testament by public act/statutory testament. For other testaments, defendant has burden of proof for three months after probate; after that, Plaintiff has the burden of proof.

346

Are videotaped testaments admissible in a probate procceeding?

Yes, admissible as evidence, provided the testator's sworn oath is recorded on the videotape, of the following: proper execution of the testament; testator's intentions; testator's mental state or capacity; testament's authenticity; OR by matters the court deems relevant to probate.

347

Will a foreign testament be recognized in Louisiana?

A valid out-of-state testament will be recognized in Louisiana, at least as to formal validity. LA extends full faith and credit to probate in another state.

348

How do heirs get simple possession without administration in an intestate succession?

1. File a verified petition for possession along with the affidavit of death/domicile/heirship; 2. An inventory or sworn descriptive list of assets (and usually liabilities also) is then prepared. 3. Judgment of possession can then be granted ex parte. 4. If ther is a surviving spouse, she must join in the proceeding.

349

When can the simple possession without administration be used in an intestate succession?

1. Availableb and heirs shall be recognized when all heirs are competent; accept succession; and the succession is relatively free of debt; 2. Available and heirs MAY be recognized when no creditor objects and the petition is filed by: 1. All competent heirs, if all of them accept the succession; 2. Legal gaurdian of all incompetent heirs; or 3. The SS in community, if all heirs are incompetent/no legal rep has been appointed.

350

Hwo long do creditors have to claim against simple possession without administration?

Creditors have three months from the date of judgment of possession to file a claim and the heirs must then post a bond to cover the claim or the judgment will be dissolved.

351

How do heirs get simple possession without administration in a testate succession?

1. Legatees file an ex parte petition for possession; 2. Prepare an inventory or sworn descriptive list of assets (and usually liabilities also); 3. Executor must join in petition. If no creditor requires an administration, then judgment of possession may be granted.

352

How is the executor appointed in an adminstration of a succession?

1. Executor named in the will is appointed by issuance of letters testamentary unless disqualified. 2. If no executor is named in the will or the one named is disqualified, the court can appoint a dative testamentary executor.

353

What are he disqualifications for executors?

1. Includes persons who are under 18; interdicted; convicted felons; a non-resident who fails to appoint a resident agent, or who have bad moral character.

354

What is the preference of executor when the court must appoint an executor or administrator?

Preference is given in the following order: 1. Best qualified among SS, competent heirs/legatees/legal rep of any heirs or legatees; 2. Nominees of the foregoing class; 3. Best qualified creidtor of the deceased/owner of immovable property with deceased.

355

What is the court's power to remove a succession representative?

The court may remove a succession reprsentative who fails to qualify or becomes disqualified on its own motion/motion of an interested party.

356

What are the duties and powers of the executor?

1. Fiduciary duty to manage succession property as a prudent administrator; 2. Shall receivin 2-2.5% of the value fo the succession, or more at court's discretion, unless previously set in the testament 3. Must file inventory/sworn descriptive list; 4. Representaitve has duty to act as a fiduciary and has full power over the property during the period of administration. 5. Files tableau of distribution for homologation (judgment authorizing succession administartor to pay debts) 6. Files final account.

357

What is the interim allowance for maintenance during the administration?

If succession is sufficiently solvent, an heir/SS/legatee would be entitled to reasonable periodic allowance for his minetnace, provided that the court concludes that such an allowance is necessary and the advances are wtihin the amount eventually due to them. May compel payment by contradictor motion against successionr ep; must be published once and the any opposition be filed within ten days from date of publication.

358

How may a creditor suspend prescription on his claim against the succession?

A creditor may suspend prescription against his claim for up to 10 years by delivering personally or by certified/registered mail a formal written proof of claim to the succession rep/filing it in the succession proceedings. Proof of claim must contain: 1. Name and addy of creditor; 2. Amount of claim and factual basis; 3. Description of the security, if any. If no succession opened, file in mortgage records (which suspends prescription for five years.

359

When can a creditor sue a succession representative?

Cannot sue to enforce a claim against the succession unil the rep has rejected the claim. Failure to act within 30 days is a rejection.

360

When are heirs and legatees put in possession?

Put in possession by petition after homologation of final tableau of distributions (or beforehand after contradictory hearings).

361

What are small succession?

Apples to any estate (1) values at $75k or less at the time of death; (2) with no immovable property other than small succession immovable property; and (3) sole heirs are descendants/ascendants/siblings (or descendants thereof) or surviving spouse. To use the procedure, the decedents must have been domiciled in Louisiana and died intestate or domiciled outside Louisiana with a testament probated by another state court.

362

What is small succession immovable property?

Immovable property made up of a single lot or contiguous lots, on which a single building stands along with any ancillary buildings. This lot (or contiguous lots) cannot contain more than four dwelling units, each of which has a primary use as a resident. Deceased/SS must have resided in portion of lot, and portion must be considered last residence OR any cemetery spaces.

363

Is there an affidavit required for a small succession?

Yes. Major heir/SS execute an affidavit setting forth: 1. Date of death; 2. Deceased died intestate; 3. Marital status of deceased. If there is no SS, affidavit must be signed by two heirs.

364

Where is venue proper for a parition action between co-owners?

Proceeding is via ordinaria and venue is proepr where all or part of immovable is located, or, if only movables, where any movable is located.

365

What are the types of partition?

1. In kind--in kind, if divisible by nature. 2. By licitation--public auction after advertisement and divide the proceeds.

366

Where is venue proper for divorce and annulment of marriage?

Venue is proper in the parish where either party domiciled or parish of last matrimonial domicile. Cannot be waived and judgment by court of improper venue is absolute nullity.

367

What is the appeal period for a divorce?

Same 30-day period as a suspensive appeal; judgment is suspending regarding annulment/divocce/partition of CP/settlement of claims arising from marriage, but no bond need be posted. Note--also only a 30-day delay to appeal judgment awarding custody or alimony, but appeal does not suspend that portion of judgmnet. Exception to 60-day devolutive appeal rule.

368

What is the time period for living separate and apart when there is abuse or no children?

180 days. Time period when there is no abuse and minor children is 365 days.

369

Can defendant in a divorce obtain a divroce by default? What is the procedure?

When the grounds are living apart for the requisite time period (180 days or 365 days) as of filing date, the defendant must acknowledge receipt of certified copy of petition, waive citation, service, and trial by notarized affidavit, and have default taken against him by affidavit the same day. Plaint must provide: 1. certification of type/date of service made on defendant and prelim default date; 2. Certification by the clerk that clerk examined record/no opposition filed.

370

Whare the petition requirements for an Aricle 102 divorce? (filed before passage of 180/365 day time period)

Petition shall contain allegations of jurisdiction/venue and be verified by affidavit. Service of the petition must be requested on a defendant within 90 days of filing.

371

What are the requirements for the rule to show cause in an Article 102 divorce?

File rule to show cause alleging service of petition; passage of the requisite time period from service; and that spouses have continued to live apart, verfied by affidavit.

372

What is the effect of the requisitie time period not passing in an Article 102 divorce?

Judgment is absolutely null if the requisite time peirod has not passed from service or written waiver of service.

373

When is an Article 102 action deemed abandoned?

Action deemed abandoned if rule to show cause is not filed within two years of service of petition or written waiver of service.

374

When many an Article 102 petition be dismissed?

Petition may be voluntarily dismissed upon joint application of parties or contradictory motion of the plaintiff. Reconciliation during the requisite time peirod, if proven, will defeat.

375

What is the summary of steps for divorce under Article 102?

1. Petition for divorce; 2. Sheriff's return or waiver of service (wait 180 or 365 days); 3. Rule to show cause and affidavit; 4. Sheriff's return; 5. Another affidavit of mover, executed after filing rule, that the parties have lives apart since petition and the mover desires to be divorced.

376

What is an Article 103 divorce?

Spouses have lived apart separate and continuously for the requisite period on date petition is filed; adultery; felony conviction and sentenced to death or imprionment at hard labor.

377

Where is venue proper for a tutorship proceeding?

Petition for appointment of a tutor is filed in the parish of surviving parent (if one parent is dead), or custodial parent (if parents are divorced or judicially separated) or where minor resides. If divorced parents have joint custoday, they must petition jointly for appointment as co-tutors in the court where divorce or judicial separation granted, or where minor domiciled or resides.

378

What are the owers of the tutor?

Tutor is fiduciary and cannot contract with the minor, must post security to cover value of the property (unless natural tutor/court dispenses) and can sell and buy property.

379

What is the procedure for tutorship?

1. File petition in court of proper venue; 2. Take oath; 3. Cause an inventory to be taken or detailed descriptive list to be prepared by a notary; 4. Furnish secuirty; 5. Appoint an undertutor who shall act for the minor whenver the minor's interest is opposed to that of the tutor.

380

Who may file an action for removal of a tutor?

Any interested party or the court may file a motion to remove a tutor who has mismanged property/becomes disqualified/or becomes incapable of discharging his duties. Motion will be served on the tutor who will be required to show cause why he should not be removed as tutor. His removal as tutor will not invalidate any acts performed prior to his removal.

381

Where is venue proepr for a petition of judicial emancipation?

Petition for emancipation is to be filed in the parish where a party is domiciled. 1. Minor 16 ages or older can file without a tutor/admi. Must name his parents/tutor as parties and be served personally upon defendants. 2. Parents of a minor 16 or older/tutor must name minor as defendant and be served personally on the minor/attorney appointed to represent the minor.

382

Can minor and parents file a joint application for judicial emancipation?

Yes. Service is unnecessary under this arrangement.

383

What are the requirements for a petition for judicial emancipation?

Verified by all petitioners and set forth: 1. Name/domicile/age/current addresses of the minor, parents, and any tutors; 2. Why good cause exists for the emancipation; 3. If limited judicial emancipation is requested, the effects of majority sought to be conferred upon the minor; 4. Descriptive list and location of the minor's property, if known.

384

What is the procedure for an emancipation hearing?

1. Summary proceeding and minor must be present, except for good cause shown. A joint petition can be granted WITHOUT hearing. No suspensiv appeal. Validity of minor's acts unaffected by subsequent modification/termination of the judgment. On motion of court/any erson, the court can modicy or terminate the judgment for good cause shown. Clerk of court shall record judgment in coneyanve records of parish where rendered.

385

What must a judgment of limited emancipation specify?

A judgment of limited emancipation must specify effects of majority conferred and state that the minor retains all other effects of minory.

386

Where is venue proper for an interdiction petition?

Interdiction petion should be filed in the parish of the interdict's domicile; parish of residence if not domiciled in state; or where he may be found.

387

What are the requirements for an interdiction petition?

1. Name/domicile/age and address of petitioner, defendant, proposed curator and his education; 2. Reasons for interdiction and extent of interdiction; 3. Name/address of defendant's spouse and adult children; 4. Name and addy of any prior legal representative or curators.

388

How is service made on an interidcition petition?

Petition is by personal service. Within three days of filing, send certified mail to all persons names in petition.

389

What is the procedure for the hearing on interdiction petition?

Hearing or trial is by sumary proceeding. Service of notice on D and all persons in petition at least 10 days in advacne. D has right to be present; can only condcut hearing in defendant's absence if good cause exists.

390

What is the burden of proof on petitioner in an interdiction proceeding?

Burden on petitioner to prove facts by clear and convincing evidence.

391

What is the effect of a judgment and recordation of interdiction?

1. Appoint curator/undercurator; 2. State curator's pwoers commence only upon qualification; 3. Direct clerk of court to record judgment in conveyance and mortgage records in parish where rendered. Also, within 15 days of qualification, curator must file every judgment of interdiction in conveyance and mortage records of every parish where interdict owns immovable property.

392

What is the burden of proof on a modification or termination of a judgment of interdiction?

Court or any person, including interdict, may move to modify or terminate interdiction because it is excessive, insufficient, or changed circ. Burden is preponderance of the evidence. Can appeal judgment within 30 days of expiration of delay for new trial/JNOV/denial of such motions.

393

What is the procedure for a temporary interdiction?

1. File vertified petition showing irreparable harm to defendant or his proeprty; 2. Licenses phsyician/psychologist supporting affidavit; 3. Efforts to give defendant notice or why notice is unccessary.

394

What is the procdure for a prelimianary interdiction?

An adversarial hearing must be held within 20 days of order scheduling hearing. Personal service of all pleadings/order/and supporting documents on defendant and his attorney not later than 72 hours prior to preliminary interdiction hearing. Court appoints attorney to rep D in temp/prelim interdiction hearings, unless he retains own/competently waives right.

395

What are the qualifications of a curator/undercurator?

1. Absolutely unqalified--Under 18 years old; an interdicted person; nonresident w/o agent for service of process. 2. Presumptively unqualified--those who are convicted felons/debtor of interdict/adverse party in a lawsuit or person affiliated with long-term care institution where interdict is receving care, unless related to interdict. Preferential order: spouse; adult children; parent; someone residing with D more than six months prior to petition; any other person.

396

What is required for the appointment of curator/undercurator?

1. Security and oath required; must qualify within ten days of appointment; 2. Must have sworn descriptive list/FMV of interdict's preropty in lieu of inventory, unless court orders otherwise; 3. Removal is for good cause.

397

What happens when lessee's right to occupancy ceases?

(Eviction, generally) 1. Lessor delivers written notice to vacate within five days of delivery; 2. If lessee's whereabouts are unknown, notice and pleadings may be attached to the door. Notice to vacate may be waived in the lease.

398

What is the procedure to evict?

1. Rule to show cause: If lessee fails to vacate, lessor may serve rule to show cause to deliver the premises (may attach to door); 2. Lessor may also take possession on reasonable belief that the premises have been abandoned; 3. Rule is heard no earlier than third day after service; 4. If the lessee fails to vacate within 24 hours of judgment, the court must issue warrant directing the sheriff to take possession; the sheriff may break down the door; 5. No suspensive appeal unless defendant contested the rule/posted appeal bond within 24 hours of judgment of eviction.

399

What is habeas corpus?

A writ commanding a person who has another in his custoday to produce him in court and state the authority for the custody (adoption disputes). 2. Venue is proper wher defendant is domiciled or where detainee is in custody. Summary proceeding; must be initiated by filing a petition.

400

What is mandamus?

A write directing a public officer to perform a ministerial duty required by law or directing a corporation to perform a duty required by charter/bylaws/or law to recognize the rights of its members or shareholders.

401

What is quo warranto?

A writ directing an individual to show by what authority he claims to hold public or corporate office.

402

What is the prodcure for proceeding in forma pauperis?

1. Request in ex parte motion or in first pleading; 2. Affidavits of the litigant and a third person (other than the litigant's attorney) attesting to the litigant's ability to prepay costs; 3. Opposing party/clerk of court may traverse and challenge the litigant's right to proceed IFP. However, only one rule to traverse, whether by adverse party of clerk, will be allowed.

403

When does the sufficiency/validity of a bond need to be tested?

When a party to a judicial proceding is required to furnish a bond, any person in interest can test the sufficiency of the bond by ruling he party furnishing the bond into the trial court to show cause why the bond should not be decreed insufficient/invalid. If the alleged insufficiency is based on insolvency of a surety, the party furnishing the bond has the burden of proving the surety's solvency.

404

What is the abilility of a defendant to supply additional/new bond if original bond has been adjudged insufficient?

Within four days, exclusive of holidays, the judgment holding the original bond insufficient, the party furnishing the bond may furnish a new or supplemental bond with a new or additional surety. Underlying procedure for which bond was furnish will not be affected and cannot be set adie if D furnishes new/supp bond in a timely fashion.