LA BAR EXAM CODE OF LOUISIANA CIVIL PROCEDURE

Question 1

What parish or parishes would be proper venue for the lawsuit(s)?

Answer 1

Venue would be proper in the parish where Sample Co., a domestic corporation, has its registered office.
(insert parish)

Venue would also be proper in the parish where damages were sustained and where the wrongful conduct occurred. (insert parish)

Sample Parish is also proper venue because that is the parish where services under this repair contract were to be performed.

Other Parish would also be a proper venue option because it is where defendant Guy resides.

Question 2

How would defendants challenge improper venue?

What pleading must be filed and when?

Are they likely to prevail?

Answer 2

Defendants should file a declinatory exception of improper venue prior to or in their answer.

Yes. There is no basis for venue in Example Parish, parish of plaintiff’s domicile, without the addition of another joint or solidary obligor such as a long-arm or insurance defendant, in which case plaintiff’s domicile would then be a proper venue under Article 73.

Question 3

How does a plaintiff request that a judge order the clerk of court to process the suit?

Answer 3

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.

Question 4

What can a plaintiff do if one of the defendants has been served but hasn’t filed anything?

Answer 4

Plaintiff should seek a default judgment against Defendant since his time to answer has long since expired. Once the applicable time period has elapsed, plaintiff may have a default judgment entered by presenting a prima facie case. Plaintiff 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 Defendant.

Question 5

If the plaintiff did not ask for a trial by jury in the petition, but defendant wants one later on in the case, what must defendant do to ensure trial by jury?

Answer 5

Defendant should request a jury trial in its answer or within ten days of the filing of any pleadings that raise an issue triable by a jury. It 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.

Question 6

How can a defendant add a third party?

Answer 6

A third party petition.

Question 7

How may the Defendant effect service of process on the third party defendant(s)?

Answer 7

3rd Party Def. must be served under Louisiana’s long-arm statute. This is done by 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 (curator ad hoc) appointed by the court to represent the non-resident defendant 3rd Party Def..

Question 8

What must Defendant file in the record to prove service was made on 3rd Party Defendant Example Co?

Answer 8

Defendant should file into the record an affidavit attaching proof of delivery to defendant along with date, place and manner of delivery.

Question 9

What pleading must 3rd Party Example Co. file to contest jurisdiction of Louisiana over it in this matter, and when must it be filed?

Answer 9

3rd Party Example Co., should file a declinatory exception of lack of personal jurisdiction prior to or in its answer.

Question 10

What is a basis for possible jurisdiction over Example Co. when Example Co. does not sell products to any Louisiana distributor?

Answer 10

There are several possible bases for the assertion of specific jurisdiction under Louisiana’s long-arm statute.

First, Tangi Electric contracted with Portland Electric to supply it with these particular electrical breakers in Louisiana and this tort cause of action (products liability) is considered to have arisen from the activity of contracting to supply goods in Louisiana.

Second, the defective manufacture of the electrical breakers is an act committed outside Louisiana causing damage (the fire) within the state and would provide specific jurisdiction if Portland Electric regularly does or solicits business in Louisiana or derives substantial revenue from its goods used in Louisiana. This is a highly unlikely predicate under these facts since the company does not sell to any Louisiana distributors and has no offices in the state. Nonetheless, it does have distribution offices in three contiguous states through which its products likely reach Louisiana residents. The question is whether the collective revenue from those sales is deemed “substantial” enough for jurisdiction.

Third, a manufacturer of a product such as electrical breakers, which caused damage in Louisiana, would be subject to personal jurisdiction if, at the time of the sale to Tangi electric, Portland Electric could have foreseen or expected its product could end up in Louisiana by reason of its nature and marketing practices. Given the geographical proximity of its distributors it may be reasonable to expect its products would reach Louisiana residents even though it had no Louisiana based distributors. This may indeed provide the strongest basis for specific jurisdiction, though some courts and U.S. Supreme Court Justices might require a stronger showing of purposeful availment.

Question 11

What should the plaintiff do if he would like to know specific information from defendant co. in discovery but plaintiff does not know which official/representative of defendant co. to name in discovery filings?

Answer 11

Plaintiff’s attorney may take the deposition of an organization by naming Defendant Example Co. in the deposition notice and designating the matters on which they would like to depose a representative of Defendant Example Co.. Defendant Example Co. will then be required to designate one or more persons on its behalf to appear at the deposition and answer under oath the questions posed by Plaintiff’s attorney. This is commonly referred to as a “1442 deposition”.

Question 12

If plaintiff suspects that defendant has a history of ___ what forms of discovery could plaintiff serve to seek that information?

Answer 12

Plaintiff’s attorney can depose Def. and question him under oath about any past faulty repairs of which he is aware; or it can serve interrogatories on Def. Co. seeking answers to those questions.

Question 13

Plaintiff’s insurance company, after they paid Plaintiff for his damage caused by Def., files an intervention as a plaintiff in Plaintiff’s suit against Def. Co. seeking to recover by way of subrogation the amount Ins. Co. paid Pltff. Defendants filed an exception of prescription. How should the court rule and why?

Answer 13

The court should deny the exception of prescription. The timely filing of Pltff’s suit interrupted prescription on Ins’s subrogation claim seeking recovery of the insurance proceeds paid by Ins to Pltff, its insured. There is only one principle cause of action here damages caused by the negligence of Sample Example Co. and Def. Ins Co.’s subrogation claim is part of Pltff’s cause of action because Ins Co has already paid part of the damages being sought by Pltff and Ins Co is entitled to recover to the extent of those payments as partial subrogee. Therefore, Pltff and Ins Co share the same cause of action and, as such, timely suit by either interrupts prescription for both.

Question 14

Expert witness reports were exchanged, and the discovery depositions of both experts were taken. Pltff believes that the defense expert is completely unqualified to give expert testimony in the suit and that his methodology is “junk science.”

What motion should Pltff file to test the expert’s qualifications and opinions?

What is the time deadline for bringing the motion?

Answer 14

Pltff can file a motion for a pretrial hearing to determine whether the defense expert qualifies as an expert or whether his methodologies are reliable under the Code of Evidence.

The motion must be filed not later than 60 days before trial.

Question 15

The deadline for discovery has not passed, and a trial date has not been set. However, Def. Co. believes all the evidence needed to support the dismissal of Pltff Co.’s claim for loss of business income has been fully discovered. What motion must Def. Co. file to seek the dismissal of Pltff Co.’s claim for loss of business income? What showing must Def. Co. make in its motion to prevail? What type of evidence may Def. Co. submit to support its motion. and when may Def. Co. file its motion? Explain fully.

Answer 15

Hy-Cycle must file a motion for summary judgment asserting that based on the pleadings and evidence adduced in the case, there is no genuine issue of material fact left to be decided and that it is entitled to a judgment dismissing it from the case as a matter of law. Hy-Cycle has the burden of proof on the motion.

However, since Eco-Tours has the burden of proof at trial on its products liability claim, Hy-Cycle’s burden on the motion does not require it to negate all essential elements of the claim. Rather, it only has to point out the absence of factual support for one or more elements. Here, the deposition testimony of the engineer who stated under oath that Batty Batteries, not Hy-Cycle, manufactured the battery packs shows that there is no factual dispute as to who the manufacturer was of the component part that contained the defect. Unless Eco-Tours can demonstrate otherwise, it will be unable to prove an essential element of its products liability claim against Hy-Cycle.

In support of its motion for summary judgment, Hy-Cycle may submit pleadings, memoranda, affidavits, depositions, answers to interrogatories, written stipulations, and admissions.

Any supporting affidavits must be made by a competent affiant; on their personal knowledge; and based on facts admissible at trial. Hy-Cycle may file the motion at any time.

The motion and affidavits must be served at least 65 davs prior to trial.

Question 16

After adequate discovery, the court fixed a trial date. Pltff has now decided to file a Motion for Summary Judgment seeking a determination by the judge that Defendants are liable for the fire and to set the damages.

When is the last day that Pltff can file and serve the motion?

Pltff has timely filed and served the Motion for Summary Judgment. The court has set a hearing date on the motion. When is the latest day before the hearing date when Defendants can file and serve oppositions to the motion?

When is the last day for the court to render a judgment on the motion?

Assume that the judge denied the Motion for Summary Judgment. The case proceeded to a jury trial. At the close of Pltff’s case, Defendants believe Pltff, under the evidence and applicable law, has shown no right to any relief against Defendants and they want to have Pltff’s case dismissed. What should Defendants do to have Pltff’s case dismissed at this point?

Answer 16

The summary judgment motion and supporting affidavits and memorandum must be served at least 65 days prior to trial.

The opposing memorandum and affidavits must be served at least 15 days before the hearing.

Any judgment must be entered 20 days before trial.

Defendants should move for a directed verdict upon the ground that plaintiff has shown no right to relief.

Question 17

Assume that the jury trial of this matter has begun, and the entire jury has been sworn and accepted. Before beginning of the taking of evidence, a juror says “Example Def. Co. did a lousy job at my home last year, but I think I could be fair to them.” What, if anything, should Example Def. Co. do to have this juror removed?

Answer 17

Example Def. Co. should exercise a challenge for cause based on the juror having formed an opinion in the case or not otherwise being impartial. Although the jury has been accepted and sworn, for cause challenges may be made up to the beginning of the taking of evidence, which has not yet occurred in this case.

Question 18

Which of the following is not a valid reason to challenge a potential juror for cause?

Answer 18

A juror may be challenged for cause based on any of the following:
(i) the juror lacks legal qualification (18 years old, resident of Louisiana and U.S. citizen, can read and write, and no felony conviction);
(ii) the juror has formed an opinion or is otherwise not impartial;
(iii) relations between the juror and the party or attorney would influence the juror;
(iv) the juror has been on a jury hearing the same case or one arising out of the same facts; or
(v) the juror “takes the Fifth” on voir dire.

Question 19

Pltff expects a breach of contract soon, and seeks to bring legal action in advance of breach, what is the appropriate legal action, if any, that Pltff should file and what kind of relief should the court provide in conjunction therewith?

Answer 19

Pltff should file a petition for declaratory judgment 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.

Question 20

Pltff expects anticipated breach of partnership agreement by one partner. What can he do?

Answer 20

Pltff atty should file a declaratory judgment action on behalf of the client seeking a declaration of the rights, status and legal relations between the partners as governed by the Partnership Agreement. The atty should ask the court to declare that the action contemplated by Partner violates the agreement. The availability of monetary damages caused by Partner’s threatened action does not preclude the availability of declaratory relief and any such declaration by the court would have the force and effect of a final judgment.

Question 21

When a lawyer has signed a pleading for a client and has filed it with the clerk of court, what does the lawyer certify personally?

Answer 21

When a lawyer signs a pleading, she is certifying that she has read it and that to the best of her knowledge, information and belief formed after reasonable inquiry: (1) it is not being used for any improper purpose such as to harass, delay or increase costs; (2) it is warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law; (3) it has or is likely to have (after investigation or discovery evidentiary support; and (4) each denial is warranted by the evidence or reasonably based on lack of information or belief.

Question 22

List five obligations an attorney has as an officer of the court.

Answer 22

As an officer of the court, an attorney must:

(i) conduct himself with decorum consistent with the dignity and authority of the court;
(ii) treat all participants with due respect;
(iii) not interrupt opposing counsel or impede orderly judicial business;
(iv) not encourage or produce false evidence; and
(v) not deceive the court.

DEDIT

Question 23

A lawyer’s signature on a discovery request, response, or objection constitutes a certification by the lawyer of what? Repeat of previous question!

Answer 23

He certifies that he has read the request, response, or objection and that to the best of his knowledge, information and belief formed after reasonable inquiry it is: consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; not interposed for any improper purpose such as to harass or increase unnecessary costs; and it’s not unreasonable, unduly burdensome, or expensive given the nature of the litigation.

Question 24

In a civil suit between Def and Pltff, Def failed to respond to discovery propounded by Pltff. Pltff filed a motion to compel discovery. After a hearing on the motion, the judge ordered Def to respond to the discovery within 15 days. Def, after 15 days from the order, has still failed to respond to the discovery. What action should Pltff take?

Answer 24

Pltff should file a motion for sanctions due to Def’s failure to respond to court ordered discovery.

Question 25

A jury returned a verdict in favor of Pltff and against Def in the amount of $1 million. Def believes that the evidence was insufficient to support this verdict of $1 million in damages and that the verdict was contrary to the law, but Def does not contest the jury's liability finding. What are the options for relief from this verdict that Def can file in the trial court? What are the time delays for filing the options available to Def? What standards should the judge use in analyzing the jury's verdict in order to determine the availability of the options asserted by Def? The judge denied Def's attempt to obtain post-trial relief. The judge's order was mailed by the clerk of court to all counsel. What is the last day on which Def can file for a suspensive appeal?

Answer 25

Def has three options. He can file a motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a motion for a new trial on the issue of damages alone; or a motion for remittitur to reduce the amount of the award. The JNOV and new trial motions must be filed within 7 days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of signing of judgment. For remittitur, the court determines the time within which remittitur will be considered The standard for granting the JNOV motion is after considering the evidence in the light most favorable to the non-moving party (here it is Pltff), if the facts and inferences so strongly and overwhelmingly favor defendant that reasonable persons could not reach a contrary result, the court should grant the motion. However, if there is substantial evidence of such quality and weight that reasonable persons might reach a different conclusion, the motion should be denied. The standard for granting a new trial motion is similar to that of a JNOV except that the judge is free to evaluate the evidence without favoring either party; the judge may draw his own inferences and conclusions and evaluate the credibility of the witnesses. The court should grant the motion if the verdict on damages is clearly contrary to the law and evidence. The remittitur should be granted if the damage award is so excessive that a new trial could be granted on that basis alone; and if the issue of quantum is clearly separable from the other issues in the case. Pltff must consent to a remittitur, as an alternative to a new trial, before it is entered. Def must file for a suspensive appeal within 30 days of when the judgment denying the JNOV or new trial motion was mailed.

Question 26

Plaintiff has a money judgment rendered in her favor and against Judgment Debtor for $150,000. The judgment was rendered on March 2, 2010. The judgment has never been collected due to Judgment Debtor's limited means, but Plaintiff recently learned that Judgment Debtor got "millions of dollars" from a winning lottery ticket. Plaintiff is concerned that the judgment may soon prescribe due to the passage of 10 years unless she takes certain steps to prevent the prescription. What steps must Plaintiff take to prevent the judgment from prescribing, what, if anything, must Plaintiff file, and where it must be filed? Plaintiff has taken the proper steps to prevent her judgment from prescribing and now seeks to determine whether Judgment Debtor actually has any assets that might be used to satisfy the judgment. What must Plaintiff file to learn from Judgment Debtor whether he has any assets to satisfy the judgment? Plaintiff has learned that Judgment Debtor has in a local bank more than sufficient funds to pay all money owed to Plaintiff. Please briefly explain what Plaintiff must file so that Plaintiff can have her judgment satisfied from Judgment Debtor's bank funds.

Answer 26

Plaintiff may revive the judgment any time before it prescribes which is ten years from March 2, 2010, the date it was rendered. He can do so by filing an ex parte motion in the court and suit in which the judgment was rendered. The filing of the motion interrupts the ten year prescriptive period. The motion must include an affidavit by plaintiff stating that the original judgment has not been satisfied. File a motion for examination of the judgment debtor, which may include a request that Judgment Debtor bring her financial books and records to the examination. The motion must be filed in the court that rendered the judgment. 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. Local bank 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.

Question 27

Def was served with discovery requests seeking potentially thousands of documents that Def thinks are neither relevant to the litigation nor reasonably calculated to lead to the discovery of admissible evidence. Def further believes that the discovery was propounded to cause him to incur unnecessary effort and expense. What can Def file with the court to restrict this discovery, and what standard is the court to apply?

Answer 27

Def can file a motion for a protective order showing that the discovery requests for thousands of documents are unreasonably burdensome and expensive and are intended to annoy and oppress him. Moreover, the information being sought is irrelevant and not calculated to lead to the discovery of admissible evidence and, as such, is beyond the scope of discovery.

Question 28

Pltff's atty was deposing a key employee of Defendant in a contract dispute. As Pltff atty proceeded with questioning, Pltff atty noticed that the defense attorney continued to make lengthy objections that were providing guidance and instruction to the witness as to how to answer the questions. Are such obiections appropriate under the Louisiana Code of Civil Procedure? Explain why or why not.

Answer 28

No. Any objection during a deposition must be stated concisely and in a non- argumentative and non-suggestive manner. While defense counsel certainly has the right to make objections, it is improper to unduly instruct the witness as to how to answer the questions during the course of the deposition.

Question 29

How can Louisiana courts have specific personal jurisdiction over a Sample Co? Explain full.

Answer 29

There are four bases for a Louisiana court to assert specific jurisdiction over Hy-Cycle. First, Hy-Cycle regularly sells its Ninjango product in Louisiana to Motorcycle Express, a Louisiana based motorcycle dealership. Since the Ninjango is Motor Cycle Express' bestselling motorcycle, it is reasonable to assume that its purchases from Hy-Cycle occur with some regularity. These sales would easily constitute transacting business in Louisiana. Secondly, these sales also constitute contracting to supply things in Louisiana. Thirdly, the defective manufacture of the Ninjango in Michigan would implicate an act or omission outside of Louisiana causing damage (namely, Eco-Tours' loss revenue from being unable to rent the motorcycles) in Louisiana. Hy-Cycle regularly does business in Louisiana, as described above, and derives substantial revenue from its products being regularly purchased by Motorcycle Express. Fourthly, Hy-Cycle manufactures a product, the Ninjango, which caused economic damage to Eco-Tours while expecting that its product would be found in Louisiana since it regularly sold its cycles to a Louisiana motorcycle retailer. Since Eco-Tours' redhibitory defect cause of action arises directly from each of the aforementioned activities of Hv-Cycle in Louisiana, specific jurisdiction would apply. Moreover, the minimum contacts requirement for long-arm jurisdiction is met by Hy-Cycle purposely directing its business activity to Louisiana residents by registering to do business in Louisiana and regularly selling its products to a Louisiana reseller. It would also be fair and not unduly burdensome to hale Hy-Cycle into a Louisiana court to defend this action given its registration to do business here. Also, Eco-Tours has a strong interest in obtaining relief in its home state rather than the far more burdensome litigation option of suing Hy-Cycle in the distant fora of Michigan or Delaware.

Question 30

Prior to deposing Pltff Co. or its employees, Def. Co. would like to have Pltff Co. authenticate a copy of the 2020 Ninjango User Manual and confirm that it received a copy. May Def. Co. accomplish this through written discovery? If so, how? Explain fully.

Answer 30

Yes. There are two written discovery mechanisms by which Def Co. can authenticate a copy of the User Manual. First, it can serve a Request for Production of Documents with Eco-Tours, the plaintiff and a party to the action, asking it to produce an authentic copy of the User Manual in its possession for the 2020 Ninjango motorcycle. Eco-Tours would then have to produce the copy for inspection or copying or object to the request within 30 days after service of the request. Secondly, Def Co. can serve Eco-Tours with a Request for Admissions asking it to admit or deny that it received an authentic copy of the User Manual. Eco-Tours would then have 30 days after service of the request to respond or object.

Question 31

Under what circumstances, if any, may Plttf Co. take depositions via remote electronic means?

Answer 31

Depositions by telephone or remote electronic means may be taken if the parties agree or the court orders it.

Question 32

Pltff co. would like to know about Def. Co's electronically stored sales information. Can Pltff request this in discovery?

Answer 32

Business records may be produced in response to an interrogatory. Def. Co. can tell Pltff Co. where to find such information in lieu of answering interrogatories. There is no requirement to produce the documents in a manner specified in a request. Responsive documents can thus be produced as if that is how they are organized in the usual course of business or produce them to correspond to the RPD.

Question 33

Pltff filed the same lawsuit in two parishes. Def answered both. Pltff proceeded with one. The Lawsuit in Parish #1 proceeded to trial on November 2, 2021, and final judgment was entered in favor of Pltff a week later. No appeal was taken. On January 31, 2022, Pltff propounds discovery to Def. Co. in the Lawsuit in Parish #2. Def. Co. objects on the basis that Pltff obtained a final judgment in the Lawsuit in Parish #1. Pltff asserts that Def Co. waived its objections by not excepting to the Lawsuit in Parish #1. Is Pltff Co. correct? Are there steps Def. Co. can still take to avoid litigating the claims filled against it in the Lawsuit in Parish #2? Explain full.

Answer 33

Yes, Pltff Co. is correct. Def. Co. waived its objection by not timely filing a declinatory exception of lis pendens. Each of these lawsuits are identical, involving the same transactions between the same parties in the same capacities. However, lis pendens is a declinatory exception which Def. Co. was required to file before it answered the petitions in both suits. It is too late to do so now. Nonetheless. even though Def. Co. failed to timely object, the first judgment in the Lawsuit in Parish #1 is conclusive, and as such res judicata, as to the Lawsuit in Parish #2. Therefore, Def. Co. can still file a peremptory exception of res judicata in the Lawsuit in Parish #2 lawsuit to have that case dismissed and avoid litigating those claims. Peremptory exceptions can be pleaded at any time, even after the answer has been filed.

Question 34

Please identify the necessary prerequisites for the Smiths to bring their lawsuit as a class action on behalf of all class members. For each prerequisite, provide a detailed argument describing how the Smiths can meet the prerequisite based on the facts provided.

Answer 34

There are five absolute prerequisites the Smiths must establish in order to maintain their suit as a class action. First, they must show that the class is so numerous that joinder of all members is impracticable. Impracticable does not mean impossible. However, the thousand or so potential class plaintiffs is likely too large a number to be cumulated in one action. Therefore, the numerosity requirement is likely met. Secondly, the Smiths would have to establish that there are common questions of law or fact common to the class. This commonality requirement is also likely met since resolution of the home owners' property damage claims turn on the same legal question of Acme Energy's and Vessel Systems' negligence in maintaining or repairing the vessel tank. There are also likely common questions of fact regarding property exposure to and damage caused by release of the caustic material. Thirdly, the Smiths would have to show that the claims they asserted are typical of the claims of the class. This typicality requirement is also met since the Smiths likely suffered the same type of property damage due to defendants' negligence as other home owners in Hackberry. Fourthly, The Smiths must show that as representative parties, they will fairly and adequately protect the interests of the class. This requirement is easily met since Class Counsel has the experience and resources to adequately represent the class. Fifthly, the Smiths must show that the class may be objectively defined in terms of ascertainable criteria. This requirement is also likely met as considerations such as a property's distance from the leak, volume of material entering the property, types of property damaged and the types of damage that occurred are objective criteria which can shape and define the parameters of the class so that the court can determine the consistency of the class for purposes of conclusiveness of any judgment. In addition to the above referenced five absolute prerequisites, the Smiths must show that an additional criterion under Article 591(B) is also satisfied. Here, the most applicable one would be that the questions of law or fact common to the class predominate over any questions affecting only individual members and that a class action is the most fair and efficient type of adjudication. Here, the Smiths' is the only lawsuit filed for these claims so there is no previously commenced litigation from other putative class members nor is there any other indication under these facts that other class members have an interest in bringing their individual claims in a separate action. It would also be desirable to concentrate this litigation in the forum (Cameron Parish) where the event took place and where the relevant witnesses are located. One thousand potential class members does not pose any extraordinary difficulties in class action management and a class action is likely a far more fair and efficient judicial mechanism for adjudicating these similar claims than would hearing a thousand individual lawsuits which could yield inconsistent judgments on liability or damages. All of these claims rely on the same nucleus of operative facts a faulty pressure valve that caused a toxic substance to leak from the storage tank and damage surrounding properties; and the claims all rely on the same law for resolution the negligence of defendants in the construction or maintenance of the vessel tank and component parts such as the defective pressure valve. Thus, common questions of law and fact likely predominate over individual questions such as the amount of damages or contributing fault of individual members.

Question 35

What is an important point to remember about venue?

Answer 35

There are many rules to try to remember as to venue. If you get stuck on the exam, a good shorthand way to remember is that venue is usually proper where (i) the property is located, (ii) where the events happened, or (iii) where the defendant is located. That won't always get you to the correct answer, but the odds are in your favor.

Question 36

In a computation of time problem - is the day of the act, event, or default counted?

Answer 36

No. But, the last day of the period is counted unless it is a legal holiday.

Question 37

Def failed to raise the defenses of failure of consideration, mitigation of damages, negligence or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of obligation, illegality, and fraud in Def's answer. Now, at trial, Def wishes to assert these defenses - can he?

Answer 37

A defendant is precluded from raising an affirmative defense that was not included in the answer to a petition. In other words -- When a defendant fails to timely plead an affirmative defense in his answer, he will be prohibited from offering evidence in support of that defense.

Question 38

Pltff wishes to subpoena information that Def. Co. has exchanged with his attorney? Can he?

Answer 38

Privileged material is not discoverable. Writings prepared by a party, in anticipation of litigation, are not discoverable unless a denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery.

Question 39

Pltff atty is reviewing documents and discovers numerous pre-lawsuit emails between nonlawyer, upper level mgmt employees of the client in which they discuss possible strategies and other issues that may arise in litigation. Can Def. obtain these docs through discovery?

Answer 39

These emails should not be produced because they are privileged work-product. Writings prepared by a party, in anticipation of litigation, are not discoverable unless denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery. These emails meet the definition of work-product since they were prepared by upper level employees of a party discussing litigation strategies.

Question 40

Two weeks before trial, you learn of a new, previously unidentified witness who observed the accident. You do not plan to call this witness at tiral, since her testimony will be adverse to your client's interests. What responsibility, if any, do you have to divulge the identity of this new witness to opposing counsel?

Answer 40

Generally, there is no duty to supplement discovery responses which were complete when made. However, one exception to the rule is that there is a duty to supplement regarding, as is the case here, the identity off a new witness with knowledge of discoverable matters. therefore, counsel must divulge the identity of this new witness.

Question 41

You are defending a personal injury case in which you believe the evidence plainly demonstrates that, despite the clear liability of your client, the damages are very minor. You have made what you consider to be a reasonable settlement offer to the plaintiff's counsel, which has been rejected without counteroffer. Your client, confident that a trial verdict will not exceed his settlement offer and frustrated with the ongoing costs of defending the claim, asks you if anything can be done to recover those costs from Plaintiff who has refused to respond to your offer. Explain in detail what, if anything, can be done in this situation.

Answer 41

The answer to this question is: Defendant must make a written offer pursuant to Article 970 to settle all claims at least 20 days prior to trial and state that the offer is made. 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 defendant's costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.

Question 42

What is a reason the trial court would deny the consolidation of multiple trials?

Answer 42

1. Cause jury confusion; 2. Prevent a fair and impartial trial; 3. Give one party an undue advantage; or 4. Prejudice the rights of any party.

Question 43

Pltff agrees with the verdict in his favor, but finds the judgment woefully inadequate - what can he do?

Answer 43

In such a situation, you would file a motion for additur and request an increase in the judgment. Defendant must also consent to additur as an alternative to a new trial. If additur is entered, then the court will reform the jury verdict in accordance with the motion.

Question 44

Pltff attorney seeks review of judicial ruling prior to trial. Such a review is an interlocutory judgment rather than a final judgment on the merits. Is an appeal of that decision available?

Answer 44

An appeal of that decision is not available. However, an attorney may seek review of the trial court's ruling by filing an application for Supervisory Writs in the appropriate State Court of Appeal alleging that the trial court erred.

Question 44

Pltff expects anticipated breach of partnership agreement by one partner. What can he do?

Answer 44

Pltff atty should file a declaratory judgment action on behalf of the client seeking a declaration of the rights, status and legal relations between the partners as governed by the Partnership Agreement. The atty should ask the court to declare that the action contemplated by Partner violates the agreement. The availability of monetary damages caused by Partner's threatened action does not preclude the availability of declaratory relief and any such declaration by the court would have the force and effect of a final judgment.

Question 45

What are the timing requirements for a devolutive or suspensive appeal?

Answer 45

30 days for suspensive and 60 days for devolutive. A suspensive appeal stays the execution of judgment, but a devolutive appeal does not.

Question 46

What methods are at an atty's disposal to determine a judgment debtor's available assets to satisfy judgment?

Answer 46

Remember the Judgment Debtor Rule - requiring judgment debtor to disclose her assets. The motion may request Debtor to bring her financial books and records and the court will order her to appear in court not less than five days from the date of service of the motion and order. Debtor must then appear and answer questions from Client's counsel about her finances under oath. Failure to appear is punishable as contempt and the costs associated with the exam may be taxed against Debtor.

Question 47

You are concerned that the judgment may soon prescribe due to the passage of 10 years unless you take steps to revive it. What, if anything, must you file to revive the judgment and where must it be filed?

Answer 47

A money judgment 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. The filing of the motion to revive interrupts the 10-year prescriptive period. The motion to revive judgment must include an affidavit of the holder and owner of the judgment stating original judgment has not been satisfied. Service and citation of the motion is not neces-sary. Notice of signing of the revived judgment is mailed by clerk to the judgment debtor at his last known address. Judgment to annul can be filed by the judgment debtor showing the judgment was satisfied prior to revival and attornevs' fees and costs if annulled.

Question 48

Your client sold a tract of land to a neighbor. The neighbor defaulted on the promissory. note, and when confronted about the default constructed a fence around the land. Your client would like to bring an executory process action against his neighbor to seize and sell a tract of land. Please succinctly describe the pleadings required to bring an executory process action against Neighbor.

Answer 48

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 proper under Louisiana law. An executory proceeding may be brought in cases involving a mortgage or privilege executed by authentic act (i.e., in the presence of a notary and two witnesses), or a security agreement under Chapter 9 of the Louisiana commercial laws (which need not be executed before a notary) containing a confession of judgment clause. If movable property is involved, a confession of judgment may be imported by private signature duly acknowledged or by authentic act. File a petition praying for seizure and sale and include all authentic evidence. Note that "every link in the chain" of evidence must be in authentic form except facts as to the identity of the proper defendant, taxes due, insurance, etc., or evidence the law expressly treats as authentic, or where the law waives the requirement. Plaintiff must submit, with his petition, authentic evidence of the note, bond or other debt instrument secured by the mortgage, security agreement or privilege; the authentic act of mortgage or privilege on immovable property importing a confession of judgment; or the act of mortgage or privilege on movable property importing a confession of judgment, whether by authentic act or private signature duly acknowledged. If authentic evidence is missing, he must proceed by ordinary process. Note: An executory proceeding may be brought against the surviving spouse (without naming the heirs), the heirs or legatees (if the mortgagor is dead), or the attorney appointed to represent an absentee or a succession (where no succession representative has been appointed), or a corporation or partnership (upon whom service cannot be made).

Question 49

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

Answer 49

A detailed descriptive list must (i) be sworn to and subscribed by the person filing it, (ii) show the location of all items of succession property, and (iii) set forth the fair market value of each item as of the date of the death of the deceased.

Question 50

A common question asks what steps a tutor must take in order to lawfully dispose of the assets of a minor in a transaction the tutor believes will be in the best interests of the minor. What are they?

Answer 50

The tutor must file a petition setting forth: 1 a description of the property, the price and conditions of the proposed sale and the reasons which make it advantageous to the minor to sell at a private sale; 2) the tutor's recommendation that sale be approved beacuse of the above-market-value proposed sale price; and 3) the written concurrence of the undertutor. The court may require evidence prior to approval. If the undertutor does not concur, the tutor would have to rule the undertutor into court to show cause why the recommendation should not be approved.

Question 51

What do you need to know about eviction?

Answer 51

For purposes of the bar exam, examines need to remember the following regarding evictions: (i) The aggrieved party may serve a rule to show cause to deliver the premises. (ii) The rule will be heard no sooner than the third day after service. (iii) If tenant fails to vacate within 24 hours of judgment, the court must issue a warrant directing the sheriff to take possession. (iv) The sheriff can break down the door, if necessary, and (v) there is no suspensive appeal unless tenant contested the rule and posted an appeal bond within 24 hours of the judgment of eviction. (The time delay for you to file the bond is 24 hours.)

Question 52

Which of the following discovery methods is proper for seeking discovery from an expert witness who is expected to testify at trial? (a) Serve the expert with a subpoena if you want to depose him or her. (b) Serve the expert with a subpoena duces tecum if you want to obtain copies of relevant documents in the expert's possession. (c) Serve the attorney who retained the expert with interrogatories, deposition notice, or request for production of documents. (d) Both (a) and (b) are proper discovery methods for a testifying expert witness.

Answer 52

(c) Under La. Civ. Code of Civ. Proc. art. 1425(D)(1), discovery of a testifying expert is only permitted through use of interrogatories, deposition, or request for production of documents and tangible things.

Question 53

Which of the following is not a basis for annulling a final judgment for vices of form? (a) A final judgment rendered by a court lacking subject matter jurisdiction. (b) Afinal judgment rendered against one who has not waived an objection to venue. (c) A final judgment rendered against one not properly served. (d) A final judgment rendered against one whom a valid default judgment has not been taken.

Answer 53

(b) Under La. Civ. Code of Civ. Proc. art. 2002, a non-waived objection to venue is not a basis for an annulment of a judgment for vices of form.

Question 54

Which of the following objections is not a dilatory exception? (a) Improper cumulation of actions (b) Nonjoinder of a party under Articles 641 and 642 (c) Unauthorized use of summary proceeding (d) Discussion

Answer 54

(b) Non-joinder of a party under articles 641 and 642 is a peremptory, not dilatory, exception.

Question 55

Identify the three kinds of exceptions and explain the general purpose or function of each kind.

Answer 55

Declinatory exceptions are used by the exceptor to decline the jurisdiction of the court. Dilatory exceptions are interposed to delay the progress of the action due to objections to the form of the proceeding or for more information. Peremptory exceptions are used to defeat or dismiss the action.

Question 56

How can an attorney assist a client with an interdiction claim?

Answer 56

File a petition for interdiction which appoints the client as curator to manage the interdict's affairs. The petition will need to be filed in the parish of the interdict's domicile and include, inter alia, the proposed curator and why he/she should be appointed, the reason and extent of the interdiction, and a list of. the interdict's living relatives. The petition must be personally served on the interdict. An attorney can be appointed by the court to represent the interdict in the proceedings. The hearing or trial will be by summary proceeding and by preference. The petitioner, client, will have the burden of proving the necessity for the interdiction by clear and convincing evidence.

Question 57

Can a partial final judgment be appealed?

Answer 57

When a court dismisses on party, a final judgment can be rendered and signed by the court without an express designation by the court that it is an appealable final judgment. The delay to file the appeal would begin to run from the date of mailing the notice of judgment. A suspensive or devolutive appeal must be taken within 30 or 60 days, respectively, of the time for filing a motion for a new trial or JNOV, which, in turn, is within seven days, exclusive of holidays, of mailing of notice of signing of judgment.

Question 58

Can a witness who lives far away be compelled to testify at trial?

Answer 58

Yes, a witness may be subpoenaed to provide testimony at the trial. Any witness in a civil case who resides or who is employed in the state may be subpoenaed and compelled to attend trial wherever held in the state. If witness lives further than 25 miles from trial, plaintiff must deposit with the clerk of court sufficient funds to cover Witness's traveling expenses to and from the court at the rate of 20 cents a mile, a witness fee of $25 a day and hotel and meal expenses at the rate of $5 a day.

Question 59

Can you depose Counsel of Record for Defendant?

Answer 59

You probably cannot depose Counsel since such testimony would likely disclose privileged atty-client communications between the counsel of record and the defendant. No attorney of record representing the plaintiff or the defendant may be deposed except under extraordinary circumstances and then only by the order of the district court after contradictory leaving.

Question 60

When is a suit deemed abandoned?

Answer 60

If there has not been any step in the prosecution or defense of a case for three years, the suit is deemed abandoned. Abandonment is effective without formal order, but your client could file an ex parte motion to dismiss on grounds of abandonment and the court will enter a formal order of dismissal.

Question 61

When representing a plaintiff with an inadequate verdict re: damages, what action can you take to obtain, in the trial court, an increase in your jury award?

Answer 61

File a motion for additur. This is an alternative to a motion for a new trial, on the issue of quantum, when the verdict is clearly contrary to the weight of the evidence and a new trial could be granted on that basis alone.

Question 62

If Judge decided to increase the jury award, what procedures must Judge utilize in order to grant the increase? What is the legal name given to such an increase?

Answer 62

The legal name for this increase is additur. Quantum must be clearly separable from other issues in the case. Defendant must also consent to additur as an alternative to a new trial,. If additur is entered, then the court will reform the jury verdict in accordance with the motion.

Question 63

If you disagree with the jury's verdict on liability, what are your options for post-judgment relief in the trial court?

Answer 63

You may file a contradictory motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The new trial motion may be brought on all or part of the issues and on the grounds that the liability verdict was clearly contrary to the law and evidence.

Question 64

What are the time delays for filing post-judgment relief options?

Answer 64

The JNOV/new trial motion must be filed within seven days, exclusive of holidays, from mailing or service (if required) of the signing of the judgment.

Question 65

What are the standards that the Judge should use in analyzing the jury's verdict in order to determine the availability of post-judgment relief options?

Answer 65

The standards for deciding a JNOV/new trial motion are similar but distinctive. A JNOV should be granted when the facts and inferences, considered in the light most favorable to the opposing party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party. In deciding a new trial motion, however, the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses.

Question 66

What can an attorney do to challenge the combination of three actions, from three separate claimants/instances, in one same petition served on a client?

Answer 66

File a dilatory exception of improper cumulation of actions. Two or more parties may be joined in the same suit as Plaintiff against a single Defendant only if: (i) there is a community of interest between the parties; (ii) each action is within the jurisdiction of the court and venue is proper; and (iii) the action are mutually consistent and employ the same form of procedure. When each action arises out of completely different operative facts and there is no legal commonality to the legal claims, there is no community of interest. Separate trials should be ordered by the court in such a case.

Question 67

If defendant fails to raise affirmative defenses in his answer, but does so in the reconventional demand, can evidence on the affirmative defenses be admitted?

Answer 67

Plaintiff failed to timely object, which could have been done by motion or exception, in response to defendant's reconventional demand. Plaintiff's failure to timely obiect could be deemed a waiver of its right to oppose defendant's belated assertion of these affirmative defenses through the improper vehicle of a reconventional demand. Plaintiff should not have waited until trial of the reconventional demand to voice its objection. Secondly, since plaintiff had been apprised of defendant's intent to introduce evidence of failure of consideration and error or mistake in the context of defendant's reconventional demand relatively early in the litigation, plaintiff cannot claim surprise at trial and the resultant prejudice to its case. One of the primary reasons for requiring affirmative defenses to be pled in the answer is to avoid surprise to the plaintiff at trial, a circumstance which plaintiff cannot assert here. Thirdly, the court can treat an affirmative defense as such if it was "mistakenly" designated as an incidental demand. [La. Code of Civ. Proc. art. 1005] However, this most likely applies if the incidental demand was filed timely with the answer, not after the answer, as was the reconventional demand in this case. Moreover, the facts do not state or imply whether this was a mistake on defendant's part, as opposed to an effort to correct the failure to plead these defenses in his answer. Nonetheless, it is probably within the court's discretion here to allow evidence on these affirmative defenses. The key considerations in exercising this discretion would be whether the court views defendant's assertion of the defenses in a reconventional demand as an effort to circumvent the requirement that such defenses be pled in the answer; and whether any surprise and prejudice to plaintiff's case results. On balance, for the reasons stated above, there is no element of surprise, unfairness or prejudice to plaintiff under these circumstances; and thus the court may properly allow evidence to be introduced.

Question 68

What steps must a tutor take to allow minor children he represents to sell their interest in a property?

Answer 68

The tutor must file a petition setting forth: (1) a description of the property, the price and conditions of the proposed sale and the reasons which make it advantageous to the minor to sell at a private sale; (2) the tutor's recommendation that sale be approved because of the above-market value proposed sale price; and (3) the written concurrence of the undertutor. The court may require evidence prior to approval. If the undertutor does not concur, the tutor would have to rule the undertutor into court to show cause why the recommendation should not be approved. [La. Code of Civ. Proc. arts. 4271, 4341] Since this matter involves sale of the minors' immovable property, the court may require the tutor to furnish additional security in an amount fixed by the court. [La. Code of Civ. Proc. art. 43047

Question 69

What pleadings could you file to respond to a lawsuit that you believe is improper because the contract at issue contained a mandatory arbitration clause?

Answer 69

I could file (1) either a dilatory exception of prematurity or a motion to stay the proceedings in the trial court pending arbitration and (2) a motion to compel arbitration. In each of these pleadings I would assert that any disputes arising from the contract must be resolved by arbitration as required under the contract.

Question 70

If the trial court rejected your argument that the suit was improper, what actions could you take to try to reverse the trial court's ruling and obtain the goal of arbitration?

Answer 70

Since a decision by the trial court rejecting my argument is an interlocutory judgment rather than a final judgment on the merits, an appeal of that decision is not available. However, I can seek a review of the trial court's ruling by filing an application for Supervisory Writs in the appropriate State Court of Appeal alleging that the trial court erred in allowing the action to proceed in the trial court rather than compelling arbitration.

Question 71

What could you file on behalf of a third-party component part manufacturer, whose component part at issue was imported from a foreign manufacturer, to terminate the litigation prior to trial? The importer you represent is not the alter ego of the foreign manufacturer.

Answer 71

California Importer may file a motion for summary judgment which shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. While California Importer will have the burden of proof on the motion, since Manufacturer, as third party plaintiff, has the burden of proving at trial that California Importer is liable under the LPLA, California Importer's burden on the motion does not require it to negate all essential elements of Manufacturer's claim. Rather, California Importer can just point out there is no factual support for an essential element of Manufacturer's claim - that California Importer is the alter ego of the foreign manufacturer from which California Importer purchased the allegedly defective component part. Without factual proof of such, Manufacturer cannot meet its burden of proof at trial on this element and thus California Importer should be entitled to summary judgment dismissing it from the case.

Question 72

If a motion to support the importer exists, what specifically must the Importer Co. file to support its motion?

Answer 72

California Importer will have to support its motion with affidavits from affiants who are competent, attesting to facts of which they have personal knowledge and which are admissible at trial. Here, California Importer can file an affidavit from General Manager attesting to the fact that the company is not the alter ego of, and has no affiliation, control or ownership interest in, foreign manufacturer. As general manager, he should be competent to attest to such facts based on personal knowledge and which would appear to be admissible at trial. In addition, California Importer could further support its motion with an affidavit from counsel annexing the 1442 deposition transcript of Manufacturer, which also demonstrates that Manufacturer has no factual support to meet its burden on the affiliation element at trial. Such an affidavit and exhibit should easilv meet the above-mentioned criteria

Question 73

You believe that the plaintiff insured, in an action against defendant insurance co you represent, has failed to offer evidence needed to establish her cause of action after three days of bench trial. What can you now do to try to secure an immediate ruling in favor of your client and what is the legal standard that you must establish to prevail?

Answer 73

Since this is a bench trial. at the close of plaintiff's case. I can make a motion for an involuntary dismissal on the ground that upon the facts and the law. plaintiff has shown no right to relief. In deciding a motion for involuntary dismissal the court must evaluate the evidence to determine whether plaintiff proved his case by a preponderance of the evidence. Unlike a directed verdict in a jury trial, no special inferences in favor of plaintiff are permitted.

Question 74

You have subpoenaed one of the plaintiff's treating physicians to compel the physician's attendance at deposition. Please explain 3 methods by which service of the subpoena may be made on the physician and any requirements associated with each method.

Answer 74

First. the physician can be served personally by the sheriff of the parish where the action is pending. Secondlv. a non-party ohysician such as this can also be served by making personal service on any clerical employee of the doctor. Thirdly, if the sheriff is unable to make service after 10 days and diligent effort, a private person who is not a party may be appointed by the court to make service.

Question 75

What, if anything, can you file to challenge the qualifications of the defendant's experts and what deadline, if any, exists for such a filing?

Answer 75

Plaintiff can file, not later than 60 days before trial, a motion for a pretrial hearing to determine whether the methodologies of defendants' experts are reliable under the Code of Evidence.

Question 76

You are the Judge presiding over this matter and have received the Plaintiff's filing from Question A. What deadline, if any, do you have to rule on such filing, and what, if any-thing, must your ruling include?

Answer 76

The ruling must occur at least 30 days before trial and it must recite findings of fact, conclusions of law and reasons for judgment. If taken under advisement, the court must provide these no later than five days after the hearing. The findings of fact, conclusions of law and reasons for judgment must include: (a) why the evidence is reliable under the Code of Evidence; (b) the evidence presented at the hearing; (c) whether the experts will be allowed to testify; and (d) the reasons for the decision.

Question 77

You represent the defendant and after consulting with plaintiff's counsel, you both agree that it would be best to have this issue heard during the week prior to trial. What, if any-thing, can you do to accomplish this goal and what additional approvals, if any, are required?

Answer 77

The parties can consent, with court approval, that the motion can be heard and the ruling made any time before trial.

Question 78

You are concerned that the judgment may soon prescribe due to the passage of 10 years unless you take steps to revive it. Please explain the steps you must take to revive the judg- ment. Your answer must identify what, if anything, you must file to revive the judgment and where it must be filed.

Answer 78

Plaintiff should file an ex parte motion to revive the judgment in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the 10-year prescriptive period. The motion must include an affidavit of plaintiff stating that the original judgment has not been satisfied. Service and citation of the motion is not necessary.

Question 79

You have satisfied your judgment revival concerns and now wish to ascertain whether Judgment Debtor actually has any assets that might be used to satisfy Client's judgment. What, if anything, can you do to learn from Judgment Debtor whether he has any assets to satisfy Client's judgment? If something can be done please briefly explain what you must file and where it must be filed.

Answer 79

File a motion for examination of Judgment Debtor, which may include a request that Judgment Debtor bring her financial books and records to the examination. The motion must be filed in the court which rendered the judgment.

Question 80

You have learned that Judgment Debtor has substantial funds in a local Bank more than sufficient to pay all money owed to Client. Please briefly explain what you must file so that Client can satisfy her judgment from Judgment Debtor's Bank funds.

Answer 80

Client may garnish the bank funds under a writ of fieri facias. Plaintiff should file a petition for garnishment in the parish where Bank may be sued under Article 42 only or Article 77. Plaintiff then serves the citation, petition, garnishment interrogatories and notice of seizure on the bank garnishee. Bank will have 15 days to answer the interrogatories. Once Bank admits it has Judgment Debtor's funds, the court will order Bank to deliver the funds to the sheriff.

Question 81

What action, if any, can you bring to try to stop the noise immediately? Your answer must state what you must assert in your pleadings and what you must establish to obtain the relief sought.

Answer 81

File a petition for a temporary restraining order (TRO), which must assert that client will suffer irreparable harm if injunctive relief is not granted. Irreparable harm

Question 82

What do you need to plead on behalf of a client in order to obtain a 102 divorce for her?

Answer 82

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.

Question 83

What are the responsibilities of a court appointed attorney for an interdict?

Answer 83

The interdict's court-appointed attorney must represent the defendant until discharged by the court. The attorney must personally visit and discuss the case with the defendant, including a discussion of the facts, law, rights and options of the defendant. Failure to do so may result in sanctions but will not invalidate the proceedings. [La. Code of Civ. Proc. art. 4544]

Question 84

How would would you assist an out-of-state client in enforcing a foreign judgment?

Answer 84

There are two procedural options for having a foreign court judgment recognized by a Louisiana court. The first option is to bring an ordinary proceeding against the Louisiana judgment debtor to have the foreign judgment recognized and made the judgment of a Louisiana court. The other, more expedient, option is to utilize the procedure under the Enforcement of Foreign Judgment Act. This requires (1) annexing an authenticated copy of the foreign judgment to an ex parte petition and filing an affidavit with the last known address of the judgment debtor and judgment creditor; (2) the clerk then sends notice to the debtor; and (3) the foreign judgment may then be executed 30 days after mailing of the notice. Under either option, the venue for the proceeding would be the parish of the judgment debtor's domicile.

Question 85

What is needed to support an MSJ motion?

Answer 85

Motion must be supported by affidavits which show that the affiant is competent; that are based on personal knowledge; and attest to facts admissible at trial.

Question 86

What is an interim allowance for maintenance during administration of succession?

Answer 86

One option would be to seek an interim allowance for maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for his maintenance. provided that the court concludes that such an allowance is necessary and the advances are within the amount eventually due them. Heir may compel such payment by contradictory motion against the succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory motion to compel such payment must be published once and state that an opposition must be filed within 10 days from the date of publication. [La. Code of Civ. Proc, art. 33211

Question 87

What must be included in a petition for emancipation?

Answer 87

The petition must be verified and set forth: (1) the daughter's name, domicile, age and current address; (2) why good cause exists for the emancipation; (3) whether they are requesting a limited judicial emancipation and the effects of majority they seek to confer upon daughter; and (4) a descriptive list and location of daughter's property. The emancipation hearing will be a summary proceeding in which daughter must be present, except for good cause shown. Since it is a joint petition, the emancipation can be granted without hearing, with the consent of the mother, daughter and the court.

Question 88

What can be filed if service has occurred more than one year since the accident took place?

Answer 88

I would file a peremptory exception of prescription. Because it has been over a year since the injury, the cause of action has prescribed, unless the claim was timely filed in a court of competent jurisdiction and venue.

Question 89

If two default judgments are entered, one against client personally and one against client's corporation, after proper service on client's husband - does client have any legal basis to challenge the default judgments?

Answer 89

Client can challenge the default judgment against ABC Corporation, but not the judgment against her personally. Proper domiciliary service appears to have been made on client's husband (assuming it was made at client's usual place of abode and her husband resided with client therein); a default judgment was entered against client personally after the requisite time period to answer (21 days from service). Thus there is no basis for client to seek a nullity of judgment against her for vices of form; nor can she seek a nullity for vices of substance since client was not deprived of the opportunity to appear and assert her defense that she was not personally obligated under the contract. The fact that client had a valid defense which was not asserted because of her inexcusable neglect will not itself provide grounds for nullifying the judgment. Similarly, it is too late for client to assert the defense in a peremptory exception of no cause of action. A peremptory exception filed subsequent to submission of the case and rendering of the decision is untimely. The judgment against ABC Corporation, however, is defective because service of the petition should have been made upon client personally as ABC Corporation's agent for service of process. Thus the subsequent default judgment is a nullity.

Question 90

If a default judgment can be challenged, what procedural method must occur?

Answer 90

A petition for a nullity of judgment for vices of form. A judgment may be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction. Here, for the reasons stated above, ABC Corporation was not properly served with the petition. It is too late for ABC Corporation to file a declinatory exception of insufficiency of service of process since such exceptions must be filed prior to entry of a default judgment. It is also clearly too late to file a suspensive or devolutive appeal which must be filed 30 or 60 days, respectively, from the lapse of the time for filing a new trial or JNOV, which, in turn, runs from the March 20, 2012 date of service of the default judgment.

Question 91

What steps could you take to change the venue in which the suit is now pending?

Answer 91

File a motion to transfer based on forum non conveniens. A court may transfer a case to another district court where it might have been brought for the convenience of the parties and witnesses and in the interest of justice.

Question 92

After the trial court record is lodged with the appellate court, Plaintiff files a motion in the trial court to tax expert witness fees and other costs of trial to Defendant. Please explain whether the trial court may or may not hear that motion.

Answer 92

Yes. After an appeal has been perfected, the trial court retains jurisdiction to perform certain acts, including the taxation of costs and expert witness fees.

Question 93

Assume vou now represent Plaintiff. You read in the Wall Street Journal that the surety used by Defendant for its suspensive appeal has filed for bankruptey and you plan to file a motion to test the solvency of that surety. Do vou file vour motion with the appellate court or with the trial court? Please provide the reason for vour decision.

Answer 93

The motion to test the sufficiency of the appeal bond must be filed in the trial court in which the bond was set. The trial court set the bond in its order of appeal and the appeal was conditioned upon the posting of adequate security. The trial court also retains jurisdiction to test the solvency of the surety on the appeal bond after the purported perfection of the appeal.

Question 94

Assume you now represent Defendant. The court has heard Plaintiff's motion to test the solvency of the surety and has determined that your surety is insufficient. Is your suspensive appeal still valid? Please explain what, if anything, you may do to maintain your suspensive appeal, and any time limits associated therewith.

Answer 94

Within four days, exclusive of holidays, of the judgment holding the original bond insufficient, defendant can furnish a new or supplemental bond with a new or additional surety. The underlying suspensive appeal will then be allowed to proceed.

Question 95

Plaintiff was a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. The case was tried to a jury. During the jury deliberations, the Jury Representative/Foreperson sent a note to the Judge stating the jury would like to see a transcript of the testimony of the Treating Physician and his medical records that were admitted into evidence. Defense counsel objects. How should the trial judge rule and what should the Judge do in response to the jury requests? Please explain.

Answer 95

The trial judge should sustain Defense counsel's objection, at least with respect to the testimony. If the jury, after deliberations begin, wants to review Treating Physician's testimony and records, the jurors must be brought into the courtroom, where the court may have the testimony read to them after giving notice to the parties. The court may also allow the jury to examine the medical records only in the courtroom or may allow them to take the records to the jury room.

Question 96

Client meets with you to complain that a new business operating near his home has begun conducting noisy operations around the clock that disturb him and other neighbors on a daily basis, frequently interrupting their sleep. He states (and you confirm) that the applicable parish noise ordinance prohibits businesses in that location from emitting continuous sounds exceeding 60 decibels between 10:00 p.m. and 7:00 a.m. He and several of his neighbors would like to retain you to take steps to quiet the offending business as quickly as possible. What action, if any, can you bring to try to stop the noise immediately? Your answer must state what you must assert in your pleadings and what you must establish to obtain the relief sought.

Answer 96

File a petition for a temporary restraining order ("TRO"), which must assert that Client will suffer irreparable harm if injunctive relief is not granted. Irreparable harm is harm that is incapable of being compensated for by money damages. Client's petition must be verified and contain an attorney certification regarding efforts made to provide notice to Business.

Question 97

4.1 Client from Texas wants to enforce a judgment for money that Client obtained in Texas against a Louisiana resident who is domiciled in Grant Parish, Louisiana. The judgment arises out of a cattle grazing lease of land located in Cameron Parish owned by the Louisiana resident. 2 pts (a) What action should Client file in Louisiana and what are the requirements for that action? 2 pts (b) In what parish must this action be filed? 1 pt (c) What documents, if any, must be included in the action?

Answer 97

(a) Client can enforce the Texas judgment in Louisiana under the Enforcement of Foreign Judgments Act by annexing an authenticated copy of the Texas judgment to an ex parte petition praying that the Texas judgment be made executory in a Louisiana court and filing an affidavit with the last known address of the judgment debtor and judgment creditor; having the clerk send notice to the debtor by certified mail and, if desired, mailing notice of the filing to the debtor; and waiting 30 days after mailing of the notice to begin execution. Alternatively, Client can bring an ordinary proceeding against the judgment debtor to have the Texas judgment recognized and made the judgment of a Louisiana court. Client would need to attach a duly authenticated copy of the Texas judgment to the petition. (b) The action must be brought in either Grant Parish where the debtor is domiciled or Cameron Parish where the immovable property is located. (c) See (a) above.

Question 98

Client and his brother are co-owners of a tract of pastureland that is located on a public road. Client no longer wants to own the property in co-ownership with his brother. 2 pts (a) What type of civil action is available to Client to accomplish this? 5 pts (b) What may the court order in response to Client's demands? Explain.

Answer 98

(a) Partition by licitation. (b) The court may order a public auction after advertisement and the proceeds will be divided equally between the co-owners.

Question 99

Decedent died in Jefferson Davis Parish. At the time of death, Decedent was domiciled in Calcasieu Parish. Decedent also owned immovable property in Rapides Parish at the time of his death. In what parish must a proceeding to open Decedent's succession be brought?

Answer 99

The succession must be opened in Calcasieu Parish, parish of decedent's domicile. This venue is mandatory.

Question 100

Decedent died in Jefferson Davis Parish. At the time of death, Decedent was domiciled in Houston, Texas. Decedent owned immovable property in Rapides Parish at the time of his death. In what parish must a proceeding to open Decedent's succession be brought?

Answer 100

4.4 Since decedent is a non-domiciliary, the succession must be opened in Rapides Parish where decedent's immovable property is located. This venue is mandatory.

Question 101

4.5 Client advises that his brother has petitioned the proper court to probate the testament of their deceased father. The court has scheduled a probate hearing to take place in two weeks. Client wants to oppose the probate on the grounds that the testament is invalid. What procedural steps must Client take to accomplish what Client desires? Explain.

Answer 101

Client must oppose the petition for probate in writing within the delay allowed stating Client's name and domicile; Client's interest in filing the opposition; the grounds for opposing the probate; and a prayer for relief. The opposition must be served upon the petitioner for probate who bears the burden of proving the authenticity of the testament and its compliance with all the formal requirements of law.

Question 102

4.6 Client is domiciled in Cameron Parish, and his elderly mother, who is no longer capable of caring for herself, is domiciled in Calcasieu Parish. She maintains a checking account at a bank located in Cameron Parish. After a review of his mother's checking accounts with her, Client has found 10 checks made out to persons unknown to him. Upon Client's questioning, she has told him she does not remember writing those checks and has no idea what they were for. Client wants to prevent his mother from writing checks in the future and would like to be placed in charge of her care and her affairs. 2 pts (a) What proceeding should Client file to accomplish these goals and in what parish should this proceeding be filed? 1 pt (b) Client's petition has been served on his mother and, after legal delays for answering have elapsed, there have been no pleadings filed on her behalf. What is the next step Client should take in order to proceed with this action? 2 pts (c) The court has set a date for a hearing on Client's proceeding. Who has the burden of proof at such a hearing and what is the standard of proof?

Answer 102

(a) Client must file an interdiction proceeding in Calcasieu Parish, the parish of the proposed interdict's domicile. This venue is mandatory. (b) Client should move the court to appoint an attorney to represent his mother, the proposed interdict. (c) The burden of proof will be on Client, the petitioner, to prove facts by clear and convincing evidence.