Appeals & Enforcement

Question 1

types of judgments appealable

Answer 1

final judgments
judgment reformed with remittur or additur
interlocutory judgments only when expressly provided by law

Question 2

if party confessed to judgment in trial court or voluntarily acquiesced in judgment, appealable?

Answer 2

no. cannot appeal.

Question 3

appellate courts scope of review in civil cases

Answer 3

may review both law and facts

Question 4

appellate courts standard of review for fact findings

in civil cases

Answer 4

fact findings will not be set aside unless there is manifest error

Question 5

appellate courts standard of review for findings of law

Answer 5

reviewed by determining whether they were correct or incorrect

Question 6

appeal of right to supreme court

Answer 6

(1) a law or ordinance has been declared unconstitutional

(2) defendant has been sentenced to death

Question 7

procedure to make discretionary appeal to supreme court

Answer 7

(1) application to review judgment of court of appeal

(2) must be filed within 30 days of mailing or notice of judgment, or denial of rehearing

Question 8

procedure to apply for supervisory writ to supreme court

Answer 8

(1) if interlocutory judgment issued in trial court
(2) must be first filed in court of appeal within 30 days of ruling, or reasonable time set by trial court
(3) after court of appeal rules, writ to supreme court may be filed
(4) within 30 days of mailing of judgment by court of appeal

Question 9

devolutive appeals

Answer 9

one where underlying judgment being appealed continues being executed through pendency of appeal.

must be taken within 60 days of:

(1) time for filing motion for new trial of JNOV has elapsed (ie, 7 days of notice of judgment), or
(2) motion for new trial or JNOV denied is mailed

note: if case removed to federal court, time limit interrupted, if case remanded, begins anew

Question 10

suspensive appeals

Answer 10

suspends the execution of judgment during the time the appeal is pending

must be filed within 30 days of when:

(1) time for filing motion for new trial of JNOV has elapsed (ie, 7 days of notice of judgment), or
(2) motion for new trial or JNOV denied is mailed

Question 11

order of appeal is premature when

Answer 11

issued before court disposes of all timely filed motions for new trial or JNOV

Question 12

bond required for suspensive appeal

Answer 12

to cover compensation to appellee from delay of judgment
to ensure that the appellee will be able to pay damages

when judgment is for sum of money, security shall be equal to the amount of the judgment

Question 13

process / timeline of appealing

Answer 13

(1) file motion for order of appeal with trial court
(2) trial court issues order of appeal
(3) must state return date and amount of security, if suspensive appeal
(4) clerk mails a notice of appeal to all parties, and notice of estimated cost for preparing the record
(5) appellant must pay costs of preparing record within 20 days

(6) RETURN DATE = 30 days from date estimated costs are paid, if no testimony to be transcribed, or 45 days, if testimony to be transcribed

Question 14

*answer to appeal

Answer 14

appellee doesnt have to answer an appeal unless they also want the judgment modified, or demands damages against appellant

if he answers, must answer within 15 days from later of return date or lodging of record of appeal

Question 15

hypo:
appellee was assigned at trial court 10% of contributory negligence, wants that changed.
appellant files appeal. what does appellee do?

Answer 15

must answer within 15 days from later of return date or lodging of record of appeal

Question 16

during appeal, trial court retains jurisdiction to:,

Answer 16

(1) allow a deposition after trial
(2) extend the return date
(3) correct misstatements in record
(4) give effect to non-suspended judgment

Question 17

if record is missing, incomplete, or in error, will appeal be dismissed?

Answer 17

no, no matter who is responsible

Question 18

a motion to dismiss appeal timing

Answer 18

must be filed within 3 days of return date or lodging of appeal

Question 19

grounds for dismissal of appeal

Answer 19

consent of the parties
lack of appellate court jurisdiction
no right to appeal
abandonment

Question 20

appeal from temporary restraining order?

Answer 20

no, because it expires itself after 10 days

Question 21

appeal from preliminary injunction?

Answer 21

yes, but has to be filed within 15 days from the oreer

Question 22

suspension of preliminary or final injunction during appeal?

Answer 22

no, unless court orders

Question 23

appeal from city or parish court time line

Answer 23

appeal must be taken within 10 days from notice or service of judgment

Question 24

execution of money judgment procedure

Answer 24

must wait until suspensive appeal time passes before beginning rest of process

(1) obtain write of fieri facias (fifa) for money judgment - that directs sheriff to seize and sell defendant’s property
(2) sheriff may seize and sell within 1 year from obtaining writ
(3) sheriff must serve a written notice on debtor by person or domiciliary notice
(4) sheriff files notice of seizure in mortgage records, sends notice to other interested parties
(5) advertisement of sale at least 30 days before for immovables
(6) sheriff then sells property auction. at first auction, must be sold for 2/3+ of appraised value; at second auction, may sell for any price as long as the price satisfies seizing creditor’s obligation, sheriff’s fees, and all superior creditors

Question 25

when enforcing money judgment where there is aa superior security interest, mortgage, lien, or privilege, then:

Answer 25

purchaser at sheriff’s auction pays sheriff only amount that exceeds superior lien holder’s debt; pays the superior lien holder’s debt directly

Question 26

process for seizing assets in hands of third parties (ie bank accounts and wages)

Answer 26

(1) file and request writ of fifia in parish where garnishee (bank or employer) may be sued
(2) file a petition for garnishment and garnishment interrogatories
(3) service of citation, petition, interrogatories, and notice of seizure – bank or employer has 15 days to respond
(4) if wages are being garnished, first 75% of wages are exempt. 25% of net paycheck is available for garnishment.

Question 27

judgment debtor rule process

Answer 27

if creditor is trying to question the judgment debtor about where his assets are, for seizure and sale, serve this rule.
may even depose debtor or affiliated third parties

(1) file motion for examination of judgment debtor, in court which rendered the judgment
(2) debtor appears with records within 5 days
(3) appears and is questioned under oath
(4) costs taxed to debtor

Question 28

revival of judgments

Answer 28

may be revived at any time before it prescribes, ie, 10 years from judgment
filing a notice to revive interrupts prescription

Question 29

enforcing a judgment of possession

Answer 29

file a writ for possession that directs sheriff to deliver movable property
or compels party in possession of immovable property to vacate

Question 30

enforcing a judgment against recalcitrant debtor:
if a thing has been concealed or removed from court’s jurisdiction by defendant
or
if court orders defendant to do or not do something, and defendant refuses

Answer 30

then court may issue writ of distringas

or hold him in contempt or award damages

Question 31

when you have a judgment for specific performance

Answer 31

get a writ of specific performance

and court can direct another party to perform and charge costs to the disobedient party

Question 32

executing a foreign judgment from another state or federal court

Answer 32

can bring ordinary proceeding in louisiana court
OR
can have judgment enforced through ex parte executory process:
(1) file petition and affidavit with copy of foreign judgment, address or debtor, and creditor
(2) clerk will send notice to debtor
(3) 30 days after mailing notice, judgment may be executed