LACP Flashcards
(193 cards)
1
Q
Time Limit for Plaintiff to Serve Defendant
A
90 days from filing the action
2
Q
Declinatory Exception of Insufficiency of Service of Process
A
filed by D when he was not served/insufficiency of service
3
Q
Contradictory Motion to Dismiss for Failure to Request Timely Service
A
filed by any party when he was not served/insufficiency of service
4
Q
Peremptory Grounds for Motion for New Trial
A
a. verdict clearly contrary to law and evidence;
b. discovery of new evidence, which could not have been discovered with due diligence before or during trial;
c. juror was bribed or compromised;
5
Q
Motion for a Protective Order
A
used to prevent abusive discovery practices that seek non-discoverable information
prevent annoyance, embarrassment, oppression or undue burden or expense
6
Q
Objections in a Deposition
A
- stated concisely
- stated in a non-argumentative and non-suggestive manner
- if objection is not made during deposition, objection is still preserved for trial EXCEPT: those that related to errors that could be cured if the objections were made promptly at the deposition (ex: form of the question)
7
Q
Suspensive Appeal Bond Time Limit (Eviction)
A
24 hours after rendition of judgement
8
Q
Types of Pleadings that Incur Lawyer’s Certification Obligations
A
- petition
- answer
- exceptions
- written motions
9
Q
Intervention by Third Party
A
- third party enters lawsuit and takes lawsuit as they find it
- must be seeking to enforce a right related to or connected to object of pending suit by: joining plaintiff, joining defendant, or opposing both
10
Q
Reconventional Demand
A
same as common law “counterclaim”
11
Q
Writ of Fieri Facias (FiFa)
A
property in hands of 3P, such as wages and bank accounts, may be garnished through use of garnishment under writ of fifa
12
Q
Procedure to File a Writ of FiFa
A
- file writ in parish where garnishee may be sued
- file petition for garnishment and garnishment interrogatories
- serve citation, petition, interrogatories, and notice of seizure
- garnishee has 15 days to respond to interrogatories
- court orders garnishee to deliver property
13
Q
Judgement Debtor Rule
A
when a party believes that the debtor has the money to pay a pending money judgement
unpaid judgment creditor may serve a motion for the examination of a judgement debtor on debtor and require him to disclose assets
14
Q
Witness Resides >25 Miles Away
A
- if within state party can still subpoena for testimony
- party must deposit funds with the clerk of court sufficient to cover:
- witness’s traveling expenses at $0.20 cents per mile
- witness fee at $25 per day
- hotel/meal fee at $5 per day
15
Q
1442 Deposition
A
= CORPORATE DEPOSITION
- reasonable notice in writing to all parties in the lawsuit, stating:
- the time and place of the deposition and
- name of the deponent (or name company as deponent) and
- designates matters “with reasonable particularity” about which they would question a representative of the corporation
- corporation must designate one or more representatives to appear at a deposition who can answer the questions
16
Q
Declinatory Exception for Lack of Personal Jurisdiction
A
use when the defendant wants to contest lack of personal jurisdiction
must be filed prior to or in the answer!
17
Q
Service under Long Arm Statute
A
made by mailing citation and petition
- by certified or registered mail
OR - by actual delivery by commercial courier
18
Q
Temporary Restraining Order (TRO) Petition Requirements
A
- assert that the party will suffer immediate and irreparable harm if injunctive relief is not granted (irreparable harm = not capable of being compensated by money damages)
- made by verified petition
- maintains statys quo
- must supply security to indemnify wrongfully restrained
19
Q
Motion for a New Trial
A
- time limit: must be filed within 7 days, excluding holidays, from mailing or service of notice of judgement
- judge draws his own inferences and evaluates evidence without favoring either party and may evaluate credibility of witnesses
STANDARD:
- motion granted if the verdict was clearly contrary to the law and evidence
20
Q
Motion for a Judgement Notwithstanding the Verdict (JNOV)
A
- time limit: must be filed within 7 days, excluding holidays, from mailing or service of notice of judgement
- judge evaluates evidence in light most favorable to opposing party
STANDARD: the facts and inferences point so strongly in favor of the moving party that reasonable persons could not find for opposing party
21
Q
Motion for Additur/Remittitur
A
(party is unhappy with $ amount but not verdict)
used as an alternative to a new trial if the issue of quantum is clearly and fairly separable from other issues in the case
Requirements:
1. court must believe a new trial is necessary (verdict was clearly contrary to facts and evidence)
2. party adversely affected by additur/remittitur must consent
22
Q
Jury’s Request to View Transcript or Records
A
- Records: judge may allow jury to view records, either in the courtroom or in the jury room
- Transcript: jurors must be brought into the courtroom where the court may have the testimony READ to them after giving notice to the parties
23
Q
Motion for a Directed Verdict
A
JURY TRIAL ONLY
- made by defendant at close of plaintiff’s case based on insufficient evidence given by the plaintiff to establish a prima facie case
STANDARD: evidence, viewed in the light most favorable to the plaintiff, points so overwhelmingly in favor of the defendant that only one result is possible
24
Q
Insufficiency of Surety/Bond
A
if defendant’s bond is found to be insufficient or defendant’s surety is found to be insolvent, defendant may furnish a new or supplemental bond within 4 days, exclusive of holidays, to maintain an appeal
25
Declinatory Exception of Improper Venue
filed by defendant when plaintiff filed in improper venue
*must be filed prior to or with the answer (if not, the objection to venue is waived)*
26
Declaratory Judgement
- type of final judgment, **used for determining rights** before a contract has actually been breached;
- binding on everyone - may not prejudice persons not made parties to proceeding.
27
Declinatory Exception for Insufficiency of Service of Process
- use when service on defendant was insufficient
- must be filed PRIOR to entry of default judgement
28
Petition for Nullity of Judgement for Vices of Form
rendered against:
- **incompetent not represented**
- **D not properly served** and did not waive objection to jurisdiction
- one whom **valid final default judgment has not been taken**
- if judgment rendered by **court lacking SMJ**
*can be brought at any time*
29
Peremptory Exception of Prescription
filed by the defendant when the plaintiff's cause of action has prescribed
- prescription is interrupted when the plaintiff files in a court of competent jurisdiction and venue (but if improper venue - not interrupted)
30
Joint Petition for Emancipation
when parent/child both have the same objective in emancipation
No service required
31
Petition for Emancipation Requirements
1. child's **name, age, domicile, current address**
2. **good cause** for emancipation
3. if limited emancipation is sought - **which effects of majority are to be conferred**
4. descriptive **list and location of minor’s property**
32
Periodic Allowance in Succession
heir, surviving spouse, or legatee entitled to **reasonable periodic allowance for maintenance**, provided court finds ***advances are necessary and within amount eventually due to them***
- heir can compel by contradictory motion
33
Periodic Allowance in Succession: Procedure
1. heir compels payment by contradictory motion against the succession representative
2. notice of the petition/motion must be published once
3. any opposition must be filed within 10 days of publication
34
Motion for Summary Judgement
- use when a party wishes to get dismissed from a lawsuit
STANDARD: **"no genuine issue of material fact" + "movant is entitled to judgment as a matter of law"**
- must be supported by affidavits that show:
- affiant is competent
- based on personal knowledge
- based on facts admissible at trial
- BOP: on movant to negate ALL elements....UNLESS movant would not have BOP at trial, then only must negate ONE element -->
***burden shifts*** to non-movant to prove factual support sufficient to satisfy BOP at trial (failure to show sufficient support = no genuine issue)
- Permissible Evidence/Docs: **pleadings, affidavits, depositions, and answers to interrogatories**
35
Work Product Privilege
protects communications involving trial preparation or any other issues in anticipation of litigation
36
Options to Enforce a Foreign Court Judgement against LA Domiciliary
1. can seek recognition of foreign judgment by ordinary process
2. **enforcement of foreign judgments act**
- annex **authenticated copy of foreign judgment to ex parte petition** and file affidavit at **last known address of judgment debtor and judgment creditor**
- clerk sends **notice to debtor**
- **30 days** after mailing, judgment may be executed
VENUE = judgment debtor’s domicile (for both)
37
Contradictory Motion
both parties have the opportunity to be heard on an issue
38
Third Party Petition
used by a third party to add/join themselves to a case
39
Requirements for a Detailed, Descriptive List of Succession Property
1. **sworn and subscribed to** by person filling it
2. **show location** of all succession property
3. set forth the **FMV of each item** (as of the date of death)
40
Requirements for a Court-Appointed Attorney for an Interdict
1. represent defendant until discharged by the court
2. personally visit and discuss the case with the defendant (including facts/law/rights/options for the defendant)
*if attorney fails requirements, proceedings for the interdiction are not invalidated but the attorney might be subject to sanctions*
41
Pleadings Necessary to a 102 Divorce
Plaintiff initiates an action for divorce under Civil Code Article 102 by **filing and serving a petition containing allegations of jurisdiction and venue** (where either party is domiciled or the last matrimonial domicile).
After the appropriate period for living separate and apart (180 or 365 days) has elapsed, plaintiff then must **file a rule to show cause alleging service of the petition, passage of the requisite time period from service and that the spouses have continued to live separate and apart**, verified by affidavit.
This rule to show cause is then **served** on the defendant or defendant’s representative, unless service is waived by the defendant.
Plaintiff then **files another affidavit, executed after filing the rule, attesting that the parties have continued to live separate and apart since the filing of the petition and that plaintiff desires to be divorced.**
42
Ways to Dismiss a Juror
1. challenge **for cause** (anytime before the presentation of evidence, with the court able to try to rehabilitate the juror)
2. **peremptory challenge** (no cause needed) (only before jury is confirmed)
43
Certifications Made by an Attorney when Signing a Pleading
= that he has **read it and that to the best of his knowledge, information and belief formed after a reasonable inquiry**, certifies that:
- it is **warranted** by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law
- it is not being used for any **improper purpose** such as to harass, delay, or increase costs
- each **denial is warranted** by the evidence or reasonably based on lack of information or belief
- it has or is likely to have **evidentiary support**
WIDE
44
Joinder Required When...
1. no complete relief in 3P’s absence, or
2. adjudication of the action in his absence may:
- **impair or impede** ability to protect interest
- subject to **substantial risk of incurring multiple or inconsistent obligations**
45
Class Certification Prerequisites
1. **numerosity** – class is so numerous that joinder of all members is impracticable;
2. **commonality** – questions of law or fact common to the class;
3. **typicality** – claims or defenses of the representative parties are typical of the claims or defenses of the class;
4. **fair and adequate protection of interests** – representative parties will fairly and adequately protect the interests of the class; and
5. **objectively defined class** – class is or may be defined objectively in terms of ascertainable criteria
PLUS ONE OF THE FOLLOWING:
- separate actions would create risk of inconsistency or dispositive adjudication
- defendant acted in a way applicable to the whole
- predominating questions of law or fact common to the class
- certification for purposes of settlement
46
Lis Pendens
- two or more suits pending in different courts concerning the **same parties and the same transaction/occurrence**
- all but the first case filed must be dismissed, unless defendant does not except (in which case, the first court that reaches final judgement is conclusive)
- if judgement is pending in different states, LA court can stay proceedings pending outcome of the other case
47
Cumulation
two or more plaintiffs or defendants may be joined to a case OR two actions of the same type are put together
Requirements:
1. **community of interest** (some legal/factual issues) between parties joined
2. each cumulated action is **within the court's jurisdiction and brought in the proper venue**
3. all cumulated actions are **mutually consistent and employ the same form of procedure**
48
Res Judicata
party shall **assert all causes of action arising out of the same transaction or occurrence**, otherwise, the causes of action are WAIVED
Exception: child/spousal support in a divorce action
49
Attorney's Obligations to the Court
1. **decorum** consistent with the dignity and authority of the court
2. treat others in court with **due respect**
3. not to **interrupt** opposing counsel or **impede** proceedings
4. not knowingly encourage or produce **false evidence**
50
Forum Non Conveniens
venue is proper for a suit but court is allowed to transfer action if
- **necessary for convenience** of the parties, and
- in the **interest of justice**
*if filed in plaintiff's domicile, action can't be transferred unless venue is improper*
51
Notice of Lis Pendens
- notice of pendency of state/federal court action affecting immovable property
- filed in mortgage records in parish where immovable property is located
- provides notice to 3rd persons
52
Subject Matter Jurisdiction
legal power of a court to hear a case based on:
- object of demand
- amount in dispute, or
- value of right asserted
53
Trial Courts of Limited Jurisdiction
*NO JURY TRIALS*
justice of the peace (<5k)
city (<15k)
parish (<20k)
no jurisdiction over:
- (1) title to immovable property
- (2) state/federal constitution issues
- (3) state or parish is defendant
- (4) divorce/alimony/separation of property
- (5) succession/interdiction
54
Incidental Jurisdiction of Parish/ City Courts
when parish/city court has SMJ over main demand, it may exercise incidental jurisdiction over an incidental demand
Exception: where there is a compulsory reconvention demand that exceeds parish/city court jurisdiction, court must transfer
55
Personal Jurisdiction
legal power of a court to render a personal judgment against a party
Types:
1. service of process on defendant or agent
2. service of process on an atty at law or “curator ad hoc”
3. court appointed atty for: nonresident or absentee not served with process or minor or incompetent with no representative
4. consent to jurisdiction
5. long arm jurisdiction* – authorizes pjx over nonresidents based on certain acts or omissions in the state
56
Consent to Jurisdiction
defendant can either **submit** to court's jurisdiction or **fail to file timely declinatory exception** for lack of personal jurisdiction
57
In Rem Jurisdiction
- legal power of a court to enforce a right in, to, or against property in LA
- applies to movable, immovable, corporeal, and incorporeal property
58
Quasi In Rem Jurisdiction
- legal power of a court to render a money judgment against a nonresident not subject to pjx if the **action is commenced by an attachment of his property in the state**
- requires satisfaction of minimum contacts test
59
Long Arm Jurisdiction
authorizes pjx over nonresidents based on certain acts or omissions in the state
CONSTITUTIONAL LIMITS apply international shoe:
- plaintiff has the burden to prove **minimum contacts** (defendant has purposefully directed activities at forum residents)
- if plaintiff proves minimum contacts, burden shifts to defendant to prove that maintenance of the suit in this forum would offend **traditional notions of fair play and substantial justice**
60
Specific Jurisdiction
PJ over nonresident for cause of action arising from:
- transacting business in LA
- contracting to supply services/things in LA
- causing injury/damage by offense committed by act in LA
- causing injury/damage by act/omission outside of LA if nonresident regularly solicits business in LA, engages in persistent conduct in LA, or derives substantial revenue from LA
- interest in using/possessing a real right in immovable property
- child/spousal support to a spouse domiciled in LA with whom the nonresident lived
- child support of child conceived in LA
- manufacturing product caused damage/injury in LA and if manufacturer could have foreseen that produce would end up in LA
61
Proper Venue for Solidary Obligors?
where venue is proper to one, venue is proper to all
62
Authentication of a Document via Written Discovery Mechanisms
Two ways:
1. serve a **request for production of documents** (on a party to the action), asking for the party to produce an authentic copy
- *party has to produce copy or object within 30 days of service*
2. serve a **request for admissions**, asking for party to admit or deny that it received an authentic copy of the document
- *party has to respond or object within 30 days of service*
63
Remote Deposition?
yes, by telephone or other remote means so long as either
- parties agree OR
- court orders
64
How to serve corporate defendant who is located out of state, no offices in state, and not registered with Secretary of State?
LONG ARM STATUTE
- either mailing the citation and petition by certified or registered mail or actual delivery to the defendant by commercial courier
- If service cannot be made by either of these methods, the court will order service to be made on an attorney at law to represent the non-resident defendant.
65
What must be filed after service was made on an out of state defendant?
affidavit of the individual who either:
- mailed process to defendant by certified mail with return receipt affixed to the affidavit, or
- used a commercial courier to make delivery of process, showing the name of the courier, the date, and address at which process was delivered and attached courier's confirmation of delivery, or
- actually delivered the process to defendant
66
Lawsuit pending in two jurisdictions, but concluded in one?
- Declinatory Exception of Lis Pendens - has to be filed with or before the answer (waived if not)
- Peremptory Exception of Res Judicata- can be filed at any time
67
Service on a corporation with a registered agent by serving an employee instead?
Not allowed, service on employee only allowed if no registered agent
68
How to add defendant after answer has been filed?
must get leave of court to amend complaint
69
How to add solidary obligor defendant after claim has prescribed?
(1) relation back doctrine (relate back to date of original filing of petition if arising out of same transaction or occurrence)
- *Exception: need sufficient identity of interests for added defendant to have received fair notice of the lawsuit (know/should know it would be sued as a result of original)*
(2) suits against solidary obligors filed in court of competent jurisdiction and venue interrupts prescription as to all solitary obligors
70
Result of Denial of Class Action?
lawsuit continues between only named parties
71
Stricken demand for class relief?
claim may be reinstated upon a showing of good cause
72
Dismissal of Class Action: what is the result for class members not party to the action?
- notice of dismissal is given by publication in a newsletter in the parish where the action was filed
- prescription begins to run on class members' claims 30 days after notice is published
73
a lawyer's signature on a **discovery response** constitutes a certification by the lawyer of what?
that he has **read the request, response, or objection and to the best of his knowledge, information and belief, after valid inquiry**, that it is:
1. not for any **improper purpose**
2. **warranted by existing law** or a good faith argument for the change of existing law
3. consistent with the **discovery rules**
4. **not unreasonable, unduly burdensome, or expensive** given the nature of the litigation
74
If a civil trial is by a jury of 6/12, how many of the jurors must concur to render a verdict unless the parties stipulate otherwise?
6 = 5/6
12 = 9/12
75
When can plaintiff enforce a signed judgment?
- after the time for a suspensive appeal has run, which is 30 days from the time for filing a motion for a new trial or JNOV has elapsed
*(new trial or JNOV motions must be filed 7 days, exclusive of holidays, from the date of the mailing of the notice of signing of judgment)*
76
What action may a plaintiff take to enforce a money judgment against a defendant who owns immovable property?
*plaintiff must wait for tolling of time to take suspensive appeal (30 days + 7 days exclusive of holidays for JNOV and new trial motions)*
- file writ fieri facias
- sheriff must:
- seize immovable property anytime within 1 year
- serve written notice of seizure on the debtor
- send Mennonite notices to those who requested them in the mortgage records
- file notice of seizure in the mortgage records
- publish notice of the sale in newspaper twice (30 days before sale, then 7 days before sale)
- immovable is appraised (bid must be at least 2/3 appraised value)
- if does not sell for at least 2/3 appraised value, second sale is held for whatever price so long as it is enough to cover costs of sale and pay off superior creditors
- sheriff distributes the proceeds paying the highest-ranking creditors first and pass the act of sale
77
How does a plaintiff extend the enforceability of a money judgment?
- file an **ex parte motion to revive** in the court in which the judgment was rendered (before it prescribes, 10 years from issuance)
- filing must also include **affidavit by judgment creditor stating that the original judgment has not been satisfied**
*- filing of the motion **interrupts the 10 year prescriptive period***
78
In succession proceedings, what facts must be set forth in an affidavit to demonstrate that the daughter is filing in the correct court and for the proper interested person or persons?
- competency of affiant
- date of decedent's death and all other facts on which the court's jurisdiction is based
- all facts showing that the daughter is the sole heir
- that the succession is relatively free of debt
79
Under LA law, the daughter must introduce evidence of the assets of the decedent with the court. What are the two ways to accomplish introduction of the evidence and what should be filed to satisfy this requirement?
- file a petition for possession
- affidavits and official certificates (death certificate, etc)
80
The assets of a decedent who died without a will have a value of no more than $50,000. Because the decedent owned a small tract of immovable property, there is a need to place in the record the facts of his death and the identity of the persons who will inherit his assets. What filing may the heirs make to accomplish this goal without having to file a judicial proceeding?
heirs can open a **small succession** when:
- estate valued less than $125,000
- sole heirs are decedents or surviving spouse, and
- decedent was domiciled in LA and died intestate
*small successions do not need to be opened judicially*
heirs must execute an affidavit that includes:
- date of decedents death, that he died intestate, and his marital status at time of death
- names and addresses of heirs and their relationship
- description of estate property
- description of the heirs interest in property inherited
- an affirmation by heir that he/she accepts the succession, and
- affidavit of correctness
81
Lessee has failed to pay rent for two months, lease is residential oral?
- lessor should deliver written notice to lessee to vacate the premises within 5 days of delivery of the notice
- if lessee fails to vacate, lessor should serve a rule to show cause to deliver the premises (rule will be heard no earlier than the 3rd day after service of rule to show cause)
- after final judgment is issued, if lessee fails to vacate after 24 hours, the court will issue a warrant directing the sheriff to take possession
82
4 children all inherited a tract of land of active farmland. How can they get it split up?
- file a petition for judicial partition by licitation
- proper venue is the parish where the immovable property sits OR where the siblings are domiciled
- before parcel is sold at auction, co-owner that didn't want to sell has first option to buy
- parcel will be sold at public auction after advertisement of judicial sale and the proceeds of the sale will be divided equally
83
Insurer reimbursed homeowner up to limits of policy, homeowner sued manufacturer for excess damages beyond policy limits, insurer filed intervention 2 months in. Prescribed?
no - an incidental demand, including an intervention, is not barred by prescription so long as the claim was not barred on the day the lawsuit was filed AND it was filed within 90 days of service of the main demand
84
Time deadline for plaintiff to file and serve the motion for summary judgment and all supporting documents?
at least 65 days before trial
85
Time deadline for defendant to file and serve an opposition to the MSJ, including all documents supporting the opposition?
at least 15 days before the hearing
86
Last day for a court to render a judgment on the motion for summary judgment?
20 days before the trial date
87
Motion for summary judgment denied, case proceeded to trial (NO JURY). What would defendant file after presentation of plaintiff's case?
motion to dismiss based on the ground that plaintiff has shown no right to relief
88
Plaintiff has completed presentation of case to the jury. Defendant believes plaintiff has shown no right. to relief and want the case dismissed without defendant having to offer any evidence. What do they to do conclude the trial? And if they do not succeed, what effect does this have on their right to offer further evidence?
motion for a directed verdict on the grounds that plaintiff has shown no right to relief
STANDARD: **facts and inferences are so overwhelmingly in favor of the moving party that reasonable minds could not reach a contrary verdict**
no effect on right to effect further evidence
89
Hearing must be held and Judge must decide motion to determine whether expert is qualified by....
no later than 30 days before trial
90
Judge's ruling on the qualification of an expert must....
recite findings of fact, conclusions of law, and reasons for judgment
the above must include:
- requirements of **evidence articles**, ie that the matter requires expert testimony
- **evidence presented** at the hearing
- judge's **decision** as to whether the witness will be allowed to testify
- **reasons** for the decision
91
Motion to get rid of unqualified expert with "junk science"? Time deadline for this?
- motion to determine whether the expert is qualified and whether methodology is reliable under the rules of evidence (aka a Daubert motion)
- made at least 60 days before trial
- costs (including court costs, reasonable expert fees, and costs associated with the motion) may be assessed to the losing party in the court's discretion
92
Sanctions for failure to comply with discovery request or court order compelling discovery
- matter may be deemed proved
- evidence of the disobedient party may be excluded
- pleadings may be struck
- case may be dismissed
- default judgment may be entered
- costs and attorneys fees may be assessed
- ordered in contempt
93
NO right to a trial by jury when...
- no individual claim exceeds $10k
- suit on a promissory note (unless forgery, fraud, error, etc is claimed)
- summary, executory, probate, etc proceedings
94
Amendment of petition?
- plaintiff can amend without leave of court before answer is served
- plaintiff can amend with leave of court or consent of defendant after answer is filed
- answer to amended petition is required within 10 days after service
95
Amendment of answer?
- defendant may amend once within 10 days after original answer is served
- otherwise, need leave court or written permission of adverse party
96
Amendment of exceptions?
- dilatory and declinatory may be amended prior to hearing with leave of court or written permission of adverse party (but only to "amplify")
- peremptory can be amended at any time
97
Amendment of petition when adding plaintiffs
(no leave of court if before answer is filed, leave of court or consent if after answer is filed)
AND
- defendant knew or should have known of the existence/involvement of the new plaintiff AND
- new and old plaintiffs are sufficiently related so that adding new plaintiff is not "wholly new or unrelated"AND
- no prejudice to defendant
98
Amendment of answer when adding defendants
(can amend once within 10 days after original answer is served, otherwise need leave of court or consent) AND
- substituted defendant received notice of suit so there is no prejudice in preparing a defense AND
- substituted defendant knew or should have known that but for the mistaken identity, he would have been sued
99
Scope of Appellate review
- factual findings: not disturbed unless manifest error
- legal findings: determination of correct/incorrect
100
Appeal that you take where the judgment CAN be executed while the appeal is pending?
Devolutive
101
Time limit for devolutive appeal
within 60 days of either:
- time for filing a motion for new trial or JNOV has elapsed (7 days exclusive of legal holidays)
- denial of a timely motion for new trial or JNOV has been mailed
102
Bond requirement for devolutive appeal
None
103
Appeal that suspends the execution of judgment during the time the appeal is pending
Suspensive
104
Time limit for suspensive appeal
within 30 days of either:
- time for filing a motion for new trial or JNOV has elapsed (7 days exclusive of legal holidays)
- denial of a timely motion for a new trial or JNOV is mailed
105
Bond requirement for suspensive appeals
- when judgment is for $ of money, then the bond is equal to that amount of money
- otherwise, court will fix security sufficient to assure satisfaction of judgment along with damages for delay resulting from appeal
- if appeal bond has NOT been timely filed, trial court can convert the suspensive appeal to a devolutive appeal
106
Plaintiff/Defendant must request a jury trial by...
within 10 days of filing subsequent pleadings raising an issue triable by jury (including his complaint/answer)
107
Duty to Supplement
generally no duty to supplement when they were complete at time given
however: duty to supplement when the identity of a witness becomes known to the responding party after original responses were provided
108
Method used when you need documents from a nonparty witness
subpoena duces tecum
109
Plaintiff believes security furnished by defendant for suspensive appeal is insufficient or invalid. What can plaintiff do to challenge validity?
can test the sufficiency of the bond by ruling D into the trial court to show why the bond should not be deemed insufficient or invalid and why the appeal should not be set aside
*If the alleged insufficiency is based on insolvency of a surety, D have the burden of proving the surety’s solvency.*
110
Plaintiff wants the court of appeal to modify the trial court's judgment by increasing the award. The defendant has already filed an appeal. What does plaintiff have to do?
Since Plaintiff wants to have the judgment modified or revised, he must **file an answer to Defendants’ appeal** within 15 days from the later of:
- the return day or
- lodging of the record of appeal.
111
Declinatory Exceptions
- insufficiency of citation
- insufficiency of service of process
- lis pendens
- improper venue
- lack of PJ
- lack of SMJ
112
Dilatory Exceptions
- prematurity
- want of amicable demand
- unauthorized use of summary proceeding
- nonconformity with formalities of petition
- vagueness or ambiguity in petition
- lack of procedural capacity
113
Peremptory Exceptions
- prescription
- peremption
- res judicata
- nonjoinder of a necessary party
- no cause of action
- no right of action
- discharge in bankruptcy
114
Plaintiff's Reply to Defendant's Objection to Summary Judgment must be filed...
at least 5 days before the hearing
and
plaintiff CANNOT file any additional documents with the reply memorandum!
115
Filing Requirements for independent executor of a testamentary estate
just the testament naming the person as independent executor
116
Filing Requirements for closing an independent administration of an estate
- inventory or sworn detailed descriptive list of assets and liabilities of the estate, verified by the independent executor
- final account
117
What steps must P follow to get a deposition from W with no subpoena?
- reasonable notice in writing to all parties in case
- notice must state date/time/place for taking deposition and name and address of deponent
- if testimony recorded other than by stenographic means, manner of recording, preserving, and filing the deposition must be designated in the notice
118
What if W doesn't show up to deposition, and she wasn't deposed by P to be there?
- D can request the court to order P to pay him reasonable expenses including attorneys' fees incurred by attending the deposition
- since W is a non-party, she must have been compelled to attend by subpoena by P asking court to issue
119
D wants to argue that a 3rd person was at fault. What steps must they take?
- file a 3rd party demand against the 3rd person, alleging fault as the cause of P's harm. this allows D to present evidence at trial establishing 3rd party's fault
- incidental demands, including 3rd party demands, must not be barred by prescription at the time the main demand was filed AND must be filed within 90 days of service of main demand
120
How to serve registered agent?
request sheriff of parish of registered agent to personally serve the registered agent for service of process
121
When to request jury trial?
within 10 days of filing a pleading that raises an issue triable by jury
122
How to get access to a thing for discovery purposes?
serve P with a **request for production of things**
- must set forth **items to be inspected**, describing each with ***reasonable particularity***
- must specify a **reasonable time, place, and manner** of making the inspection and performing the related acts
- must object/ respond within 30 days
123
How to prohibit inspection based on request for production of things?
**motion for a protective order prohibiting inspection**
- within 30 days of being served with the request for production
124
D wants to allege Ps fault?
- must plead affirmative defense in its ANSWER
- failure to plead will prohibit party from offering evidence of negligence in support of defense
125
what pleading should D file to have P's claim dismissed before engaging in discovery?
- **motion for judgment on the pleadings** (court will consider only the pleadings and consider all of D's allegations not denied by P and all of P's allegations as true in deciding the motion)
- **peremptory exception of no cause of action**
126
How to answer interrogatories as a company?
Where answers to interrogatories can be obtained from the documents, defendant can **specify where in the documents the answers may be found** and if the **burden is substantially the same for both parties**, **make the documents available** in lieu of answering the interrogatories.
within 30 days of service of interrogatories
127
How to get a company to answer interrogatories who has refused?
- file **motion to compel** requesting that the court order the D to answer the interrogatory
- expenses associated with the motion may be awarded to the prevailing party unless the court finds that the motion was substantially justified or circumstances make the award of expenses unjust
128
how to get P to submit for a medical exam?
- P must have a claim for personal injury damages, including alleged physical pain and suffering, and have placed his physical condition at issue
- motion to compel P to submit to a physical or mental exam conducted by a medical doctor, vocational rehabilitation expert, or licensed clinical psychologist
- if exam is ordered, D must deliver copy of exam report if requested by P
- if P requests report, he will have waived any past or future patient-phycisian privilege pertaining to disputed conditions and will be required to send reports of any exams about the conditions to D
129
Subpoenaing a Witness for Deposition
- if not a party, must be subpoenaed only in parish where works or resides
- serve notice of deposition on D which would be sufficient authorization for court to enter subpoena, served on W within a reasonable time
130
Work Product
not discoverable unless denial would cause unfair prejudice, undue hardship, or injustice
131
How can P add defendant?
- amend petition with leave of court after answer has been served (granted by court unless it would unduly prejudice D)
- prescription is interrupted as to all joint and solidary obligors when original suit is filed (relation back)
132
when must P disclose identity of retained expert and provide expert report?
90 days before trial
133
when must D disclose identity of rebuttal experts and provide rebuttal expert reports?
within 30 days after P provides expert reports
134
form requirements for a testifying expert's report, and what information must be included in or with the report?
- report must be written and signed by expert
- report must include expert's opinions and reasons and any data on which opinions are based
- report must include exhibits, expert's qualifications, publications of previous 10 years, compensation for providing expert services, and all cases in the proceeding 4 years in which they have testified as an expert
135
Venue for modification of child support?
- parish where person awarded support is domiciled IF the award has been registered in that parish
- parish where award was rendered if not registered in the parish
- court can transfer the custody or support proceeding to another court where the proceeding may have been brought
NOT MANDATORY VENUE
136
Nonwaivable venue?
- action to annul a judgment (in parish where judgment was rendered)
- successions (where decedent was domiciled --> owned immovable property --> owned movable property)
- annulment of divorce (where either spouse is domiciled OR parish of last matrimonial domicile)
- emancipation (where party is domiciled)
- tutorship (parish of surviving parent, or where parent having custody is domiciled if parents are divorced, or where minor resides)
- interdiction (where interdict is domiciled/resides)
137
Affidavit Requirements
- competent affiant
- made on personal knowledge
- based on facts admissible at trial
138
Instructing a party not to answer an objection?
- necessary to preserve a privilege
- enforce a limitation on evidence imposed by the court
- prevent harassing or repetitious questions
- prevent questions which seek information neither admissible at trial nor reasonably calculated to lead to the discovery of admissible evidence
139
Writ of Distringas
use after final judgment, when defendant is hiding the object of the judgment
140
Deposition of a witness can be used at trial if...
- witness resides more than 100 miles away/out of state
- witness is dead/unavailable
141
Use of a Deposition of an Expert at Trial
- can be used by any party for any purpose after giving opposing party notice and 10 days to object
- objecting party must pay advance reasonable fees
- court may overrule objection if justice requires
142
Time limit to answer or object to interrogatories?
30 days from date of service (15 for family cases)
143
Number limit of interrogatories?
35 (unless leave of court is obtained)
144
Time limit to answer or object to request for production of documents and things, or entry upon land?
30 days from date of service
145
Request for Release of Medical Records
- party can serve on another party to sign a release
- party has 30 days from service to sign or object
- copy of released records should also be sent to party
146
How do you get a party to admit a fact or admit the genuineness of a document?
- can only be served on a PARTY
- if not answered within 30 days, the fact is considered conclusively proved/genuine
- if a party is forced to prove a fact denied, costs and attorney's fees can be recovered unless the court finds that:
- (1) request was objectionable
- (2) admission sought was not substantially important
- (3) party failing to admit reasonably believed he would prevail, or
- (4) there was other good reason not to admit
147
work product privilege only applies to...
- writings or electronically stored info of a party/his attorney in anticipation of litigation or in preparation for trial
- does NOT apply to video tapes
148
Non-Testifying Experts
facts/opinions are only discoverable under exceptional circumstances (unless examining physician)
149
Exceptions to Duty to Supplement
(1) questions of identity/location of people with knowledge of discoverable matters
(2) information that renders a previous response incorrect
(3) court order or agreement of the parties
150
Effect of Declinatory Exceptions
besides lack of SMJ, declinatory exceptions not raised prior to or in the answer are waived
**must raise all together BEFORE OR IN ANSWER**
151
Peremptory Grounds for Motion for New Trial
a. verdict clearly contrary to law and evidence;
b. discovery of new evidence, which could not have been discovered with due diligence before or during trial;
c. juror was bribed or compromised;
152
Remedies for Motion for Protective Order
- prohibiting discovery
- limiting terms of discovery
- ordering that trade secret or confidential info may not be disclosed
- designate form of disclosure
153
For Cause Juror Challenges
- juror lacks legal qualifications (18 years old, resident of LA and US citizen, can read and write, and no felony)
- juror has formed opinion or is otherwise not impartial
- relation between juror and party or atty would influence juror
- juror has been on jury hearing same case or one arising out of same facts
- juror takes the 5th on voir dire
154
Exception to Compulsory Joinder
the court has discretion to continue the case without the joinder of a person even if he can't be joined based on factors:
- extent of prejudice
- extent prejudice can be lessened
- adequacy of judgment in the absence of the person
- adequacy of remedy for the plaintiff if the suit is dismissed for nonjoinder
155
Effect of Sustaining Peremptory Exception
unless ground can be cured through amendment, or plaintiff fails to comply, action will be dismissed
156
Effect of Sustaining Dilatory Exception
- court will order plaintiff to amend or will transfer the case
- if not possible, court will dismiss the action
157
Effect of Sustaining Declinatory Exception
- if want of amicable demand is sustained, court will impose court costs on the plaintiff
- if other grounds, court will order plaintiff to amend, and if plaintiff fails to comply, court will dismiss
158
When NOT to Consolidate
When consolidation would:
- cause jury confusion
- prevent a fair and impartial trial
- give a party an undue advantage
- prejudice a party
159
Proper Venue
- where tortious conduct occurred
- where damages sustained
- domicile of party
- PPB of corporation party
- where K was signed
- where K's work is to be performed
- joint obligors = venue proper for one, venue proper for all
160
Small Succession
Husband and the children must execute an affidavit setting forth the date of Wife’s death, that Wife died intestate and Wife’s marital status. The affidavit must also include: the names and addresses of heirs and their relationship; description and value of the estate property; description of the heirs’ interest in property inherited; affirmation by heir-affiant that he/she accepts the succession; and an affidavit of correctness.
A multiple original of the affidavit will be sufficient authority for the payment or delivery of Wife’s property. A multiple origi- nal of the affidavit must also be filed in the conveyance office in Jefferson Parish where they owned immovable property, in this case, the small home.
161
Where to file declamatory exception of lis pendens
the parish in which the first of these identical suits was filed
DISMISSAL WILL BE WITHOUT PREJUDICE
162
No action taken in case against D for 5 years... what now?
I would recommend that defendant take no action in the case because it is already deemed abandoned.
Since no step in the prosecution or defense of the case has been taken for three years, the case is abandoned without the necessity of court order.
Alternatively, any interested person may move the court for an order dismissing it by reason of abandonment, but such a motion isn’t necessary.
163
Qualifications of Expert Challenged - What motion to file?
motion to determine whether plaintiff’s expert qualifies as an expert or whether his methodologies are reliable under **articles 702-705 of the Code of Evidence**
164
As a court qualified independent executrix, they have the power to sell succession property __________________.
As a court qualified independent executrix, they have the power to sell succession property **without court approval.**
165
TRO Requirements
Owner should file a petition for a temporary restraining order (TRO) and preliminary and permanent injunction. In order to obtain injunctive relief, Owner would have to present evidence that he will suffer irreparable harm if Pipeline Company is not enjoined from building a pipeline across his property. Irreparable harm is harm that is incapable of being compensated for by money damages. Owner’s petition must be verified.
In addition to showing the aforementioned irreparable harm, Owner’s petition must contain an attorney certification regarding the efforts made to provide notice to Pipeline Company of Owner’s intent to seek a TRO in the event Owner proceeds ex parte.
The TRO will remain effective from the time Pipeline Company receives actual knowledge of the order by personal ser- vice or otherwise until the hearing on a preliminary injunction.
The court may allow damages, including attorney’s fees, for wrongful issuance of a TRO.
166
Interdiction Proceeding
- in parish where proposed interdict is domiciled - MANDATORY
- after interdict served and no response, MOVE COURT TO APPOINT ATTORNEY TO REPRESENT INTERDICT
167
Jury Demand in Petition
demand a jury trial in his petition for damages stating that the amount of damages being claimed exceeds the amount required ($10,000, exclusive of interest and costs) for a jury trial.
must also file a bond or cash deposit in an amount and at a time set by the court to cover jury costs, as well as pay the clerk $150 as jury filing fees.
168
trial court retains jurisdiction, after an appeal has been perfected and the record lodged, to handle several **ministerial tasks** such as tax costs and expert witness fees
169
Writ of FiFa Process Essay
Plaintiff should file a petition for issuance of a writ of fieri facias (FIFA) directing the sheriff to seize and sell the tract of immovable property in the parish where the property is located. Pursuant to the writ of FIFA, the sheriff would seize the prop- erty and make a return to the clerk within one year of issuance of the writ. The sheriff would then notify defendant of the seizure and send Mennonite notices to any inferior mortgage holders on the seized tract who requested notice in the mortgage records. Notice of the sale of this immovable must be published in two advertisements, the first 30 days before the sale and the second at least seven days before the sale. The tract will be appraised (unless appraisal was waived) and the first sale will be held at which the bid must be at least 2/3 of its appraised value. If not, a second sale must be held at which the property can be sold for whatever price it may bring as long as it is enough to cover the costs of the sale and pay off any superior creditors. The sheriff will then distribute the proceeds paying the highest-ranking creditors first and pass the act of sale.
170
Verified Petition for Succession
The verified petition for possession must be accompanied by an affidavit alleging the competency of the daughter; the date of decedent’s death and all other facts on which the court’s jurisdiction is based; all facts showing daughter is the sole heir; and that the succession is relatively free of debt.
The decedent’s domicile at the time of death, his owner- ship of property in Louisiana, and all other facts relevant to jurisdiction may be evidenced by affidavits. The decedent’s death and facts necessary to establish his relationship to daughter may be evidenced by official certificates issued by the proper public officer or by affidavits.
171
Grounds for Recusal of Judge
172
Finality of Supreme Court Judgments
Finality of Court of Appeal Judgments
173
Bad Faith Failure to Request Service
prescription will be considered never to have been interrupted
174
Written Offer of Judgment Procedure
Make a written offer to settle all claims at least 20 days prior to trial and state that the off is made pursuant to article 970.
Plaintiff must serve written notice that the offer is accepted within ten days after service of the offer of judgment.
The offer may be made without admitting liability. If the offer is not accepted and the final judgment obtained by the plaintiff- offeree is at least 25% less than the amount of the offer of judgment, the plaintiff must pay the defendant’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.
175
Writ of Mandamus
(when clerk not doing her job)
Petition for a writ of mandamus which will direct the clerk of court to perform his ministerial duty to process the suit. Processing suits is a non-discretionary function which the clerk of court is required by law to perform.
176
Default Judgment
Once the applicable time period has elapsed, plaintiff may have a default judgment entered by presenting a prima facie case.
P may do so with affidavit proof and a proposed judgment. The evidence must be admitted into the record but no testimony is necessary unless the court requires it.
A default judgment will then be entered and it is a final judgment against D.
177
Declaratory Judgment
a PETITION
asking the court to determine the rights and obligations of the parties under the contract.
The declaratory judgment is a type of final judgment which likely will preempt a breach based on the disputed terms and avoid a subsequent breach of contract action.
178
Garnishment Process
Plaintiff may garnish the bank funds under a writ of fieri facias. Plaintiff should file a petition for garnishment in the parish where the local bank may be sued under article 42 only or article 77.
Plaintiff should then serve the citation, petition, garnishment interrogatories, and notice of seizure on the bank garnishee.
Garnishee will have 15 days to answer the interrogatories. Once local bank admits it has Judgment Debtor’s funds, the court will order the bank to deliver the funds to the sheriff.
179
Peremptory exceptions can be filed at any stage of the trial proceeding ________________.
Peremptory exceptions can be filed at any stage of the trial proceeding **prior to submission of the case for decision.**
180
you do not count the day of the act or event after which the period begins to run, the 30-day period commences the next day
181
Reconventional Demand
D can file a reconventional demand in the same suit and assert her claim against plaintiff even though it does not arise out of the subject matter of the main demand.
A reconventional demand may include any claim, whether related to the primary action or not.
182
Fraud is an affirmative defense which must be raised in the _______
Fraud is an affirmative defense which must be raised in the **answer**
183
Proper domiciliary service requires
service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served.
184
Involuntary Dismissal
allows for a judgment dismissing the case without prejudice
The standard for granting is **whether plaintiff presented sufficient evidence to establish her claim by a preponderance of the evidence.**
In deciding the motion, the court must evaluate plaintiff’s evidence without applying any special inferences in favor of plaintiff.
185
Written Offer of Judgment Substance
- state that it is being made pursuant to LCCP article 970
- specify the total amount of the offer
- specify whether or not the amount of the offer includes costs, interest, attorney fees, and any statutory or rule authorized amounts
186
A 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.
187
Earliest Time to Request a Jury
The earliest P could request a jury trial would be within ten days of filing her petition since a petition is a pleading which raises issues triable by a jury, namely liability and damages caused by the negligence of defendant.
188
No Show Depo
Since Mary failed to serve George with a subpoena which would have compelled his appearance at the deposition, and both James and James’s attorney attended expecting George’s deposition to be taken, James should move the court to order Mary to pay James’s reasonable expenses incurred including reasonable attorney’s fees.
189
Jury Instructions: Apportioning Fault
James should file written requests for jury instructions instructing jurors that if they find any fault on the part of the unidentified Mustang driver, they should apportion an appropriate percentage of fault to that driver.
190
The presence theory of personal jurisdiction grants jurisdiction over a person or entity who is served with process while physically present within the geographical boundaries of Louisiana.
191
Pleading Fault of 3P in Tort Action
192
If you waive objection by not filing declinatory exception for lis pendens, then what?
- must file declinatory exceptions with or before answer
- can file peremptory exception for res judicata in parish where suit is still pending and have the suit dismissed
193
Which of the discovery methods is proper for seeking discovery from an expert witness who is expected to testify at trial?
Serve the attorney who retained the expert with interrogatories, deposition notice, or request for production of documents.
