LA Civ Pro

Question 1

Parish Courts

Answer 1

<$20k

Question 2

City Courts

Answer 2

<$15k

Question 3

Justice of the Peace Courts

Answer 3

<$5k

Question 4

District Courts J

Answer 4

original general jurisdiction

Question 5

Courts of Appeal

Answer 5

appeal of right in any civil matter

review questions of law and fact

Question 6

Supreme Court

Answer 6

original J over admission and disciplinary proceedings against members of the bar

appeal of right: constitutionality of statute and death penalty

discretionary supervision J over all courts by writ of certiorari

Question 7

Personal Jurisdiction

Answer 7

1. Service on D or agent
2. Service on Attorney
3. Appoint counsel
   i) non resident absentee
   ii) minor incompetent w/o representation
4. consent
5. long arm J

Question 8

Long Arm Personal Jurisdiction

Answer 8

Minimum Contacts

1. Purposeful directed activities
2. fair to subject D to PJ
   i) buden on D
   ii) States interest
   iii) P’s interest
   iv) judicial system efficient resolution
   v) states interest in substantive social policies

Question 9

Long Arm Contact Actions

Answer 9

1. transacting business
2. contracting to supply services or things
3. injury or damage through act or omission
4. injury in LA outside LA but regularly does or solicits business
5. immovable property in LA
6. nonsupport of child spouse domed in LA
7. conceived child while in LA
8. manufacturer of product that caused damage in LA

Question 10

In Rem J

Answer 10

enforce right in, to, or against property having situs in LA

Question 11

Quasi In Rem J

Answer 11

render money judgment against nonresident by attachment property

Question 12

Venue

Answer 12

Dom - parish of domicile
Resides - Parish of residence
Nonresident w/agent - parish of P.O. Box
Nonresident - P’s domicile or where service is made

Domestic Business - parish of registered office
Foreign and licensed - PPB
Foreign - Ps domicile or where service is made

domestic insurer - registered office
Foreign - east baton rouge

Partnerships/Unincorps - principal business establishment

Question 13

Change of Domicile

Answer 13

may file in old domicile for one year after change or in Ds new domicile

Question 14

Joint or Solidary Obligors Venue

Answer 14

proper to one is proper to all

Question 15

Tort Venue

Answer 15

1. damages sustained
2. wrongful conduct occurred
3. D is domiciled

Question 16

Establish or Disavow Filiation Venue

Answer 16

Establish
1. dom of child
2. conception occurred
3. either parent resided at conception
4. child was born
Disavow
1. parish of birth
2. where parents resided at birth

Question 17

Custody and Child support

Answer 17

Obtain = matrimonial domicile

Change = cust parent dom, custody decree rendered, where seeker is domiciled if other out of state

Modify Support = person awarded is dom, support rendered

Register Support = where person awarded is dom

Question 18

Succession Venue

Answer 18

MUST be in court where succession is pending

Question 19

Direct Action Statute

Answer 19

sue insurer directly

1. where accident occurred
2. Where could be brought
3. Insured must be joined

Question 20

Forum Non Conveniens

Answer 20

proper venue, transfer to other proper venue for convenience of the parties and witnesses and in the interest of justice

Question 21

Nonwaivable Venue

Answer 21

1. annul prior judgment
2. succession - domicile of decedent
3. annulment or divorce actions
4. emancipation, tutorship, interdiction

Question 22

Mandatory Recusal

Answer 22

1. potential witness
2. employed or consulted with attorney
3. represented cause
4. related by blood or marriage to party
5. otherwise biased

Question 23

Permissive Recusal

Answer 23

1. associated with attorney
2. judge performed a judicial act in case in another court
3. relationship between judge and attorney appearing preventing fairness

Question 24

Recusal Procedure

Answer 24

on own motion, party motion, or refer motion to another judge

Question 25

Attorney Obligations as Officer of the Court

Answer 25

1. conduct himself with decorum consistent with dignity and authority of the court
2. Treat others in court with due respect
3. not interrupt opposing counsel or impede proceedings
4. Not knowingly encourage or produce false evidence

Question 26

Res Judicata

Answer 26

Shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation

Question 27

Cumulate Actions = P v D

Answer 27

1. action is within court’s J and brought in proper venue; AND
2. mutually consistent and employ same form of procedure

Question 28

Cumulate Ps or Ds

Answer 28

1. community of interest
2. actions are within court’s J
3. actions are consistent and employ same form of procedure

Question 29

Lis Pendens

Answer 29

two or more suits pending in more than one court on same transaction or occurrence

all but first must be dismissed OR if D doesn’t except first final judgment is conclusive

Question 30

Abandonment

Answer 30

3 years pass w/o any steps taken will be dismissed

w/o formal order, but on ex parte motion of party or affidavit of interested person court shall enter formal order of dismissal

motion to set aside dismissal must be made within 30 days of sheriff’s service

Question 31

Class Action Requirements

Answer 31

1. numerous that joinder impracticable
2. common question of law or fact
3. claims or defenses of members are typical
4. rep parties provide fair and adequate representation
5. class defined objectively

Question 32

Further Class Action Requirement

Answer 32

may be maintained if:
1. prosecution of separate actions creates risk of inconsistent or varying results
2. opposing party has acted or refused to act in a manner applicable to the class as a whole
3. questions of law or fact common to members predominate

Question 33

Derivative Actions

Answer 33

enforce right by shareholder, partner, or member when entity refuses to enforce own right

Question 34

Joinder

Answer 34

Must be joined if:

1. complete relief cannot be accorded among those already parties OR
2. claims an interest and absence would impair or impede ability to protect interest or leave parties with a substantial risk of incurring multiple or inconsistent obligations

Question 35

Factors - party cannot be made party

Answer 35

1. extent judgment rendered in absence might be prejudicial to him or those present
2. prejudice can be lessened or avoided by protective provisions in judgment or relief
3. judgment absent party would be adequate
4. P will have adequate remedy if dismissed

Question 36

Form of Petition

Answer 36

SHALL:

1. caption
2. concise allegations in #d paragraphs
3. signed by an attorney or unrepresented plaintiff
4. name and domicile of parties
5. causes of action and facts arising out of the transaction or occurrence
6. Address for receipt of service
7. Prayer for judgment

Question 37

Attorney’s Signature

Answer 37

He has read it and that to the best of his knowledge, information, and belief formed after a reasonable inquiry, certifies that:

1. it is not being used for any improper purpose such as to harass, delay, or increase costs
2. it is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law
3. it has or is likely to have evidentiary support AND
4. each denial is warranted by the evidence reasonably based on lack of information or belief

Question 38

No Monetary Amount

Answer 38

no specific amount may be included in allegations or prayer in demand

allege claim exceeds or is less than required amount

Question 39

Making Service

Answer 39

must be requested within 90 days of commencement of action

1. personal service
2. Domiciliary Service
3. Corporations (registered agent, any officer director or employee, SOS)
4. Long Arm Service (certified mail or commercial courier)
5. Nonresident Motorist (SOS)
6. Partnerships (personal to any partner, employee)
7. Unincorp (agent, or official, member)
8. Foreign Insurer (SOS)
9. Nonparty Physician (employee of doc)
10. LLC (agent, any manager, member, employee)

Question 40

Sheriff’s Return

Answer 40

Affidavit must be filed to show service

evidence of correct service

Question 41

Default Judgment

Answer 41

may be entered against D in failure to respond timely

Question 42

Answer

Answer 42

21 days or 30 days when

1. long arm statute service OR
2. P served discovery with petition

State has 30 days

if exception filed prior to answer, answer required 15 after ruling on exception or amended petition

Question 43

Contents of answer

Answer 43

admits or denies allegations

can claim lack of knowledge, information, to form belief

Question 44

Affirmative defense

Answer 44

1. failure of consideration
2. mitigation of damages
3. negligence or fault of the plaintiff and others
4. duress, error, or mistake
5. estoppel
6. extinguishment of obligation
7. illegality
8. Fraud

must be raised in the answer if untimely prohibited from offering evidence in support of that defense

Question 45

Exceptions

Answer 45

Used to retard or dismiss proceeding

Question 46

Declinatory Exceptions

Answer 46

declines jurisdiction of the court

1. insufficient citation
2. insufficient service of process
3. Lis Pendens
4. Improper Venue
5. Lack of Personal Jurisdiction

Waived unless pleaded in or prior to answer

court orders amends or transfer or dismiss

Question 47

Dilatory Exceptions

Answer 47

to delay
1. prematurity
2. want of amicable demand (court costs on P)
3. nonconformity with formalities of petition
4. Vagueness or ambiguity in the petition
5. lack of procedural capacity

in or prior to answer or waived

court orders amends or transfer or dismiss

Question 48

Peremptory Exceptions

Answer 48

if granted results in dismissal

1. Prescription
2. Peremption
3. Res Judicata
4. Nonjoinder of party
5. no cause of action
6. SMJ

unless cure is possible it will be dismissed

Question 49

Peremptory Timing

Answer 49

after answer before trial = tried and disposed of in advance or at trial

after trial = rule at any time unless party against desires and is entitled to introduce evidence thereon (tried specially)

Appellate Court = before case was submitted and may remand for trial (except prescription)

Question 50

Incidental Demand Types

Answer 50

1. Reconventional Demand
2. Cross-Claim
3. Intervention
4. Third-Party Demand
5. Prescription

Question 51

Reconventional Demand

Answer 51

any claim whether related or not

D must assert all causes of action the he may have against P out of same transaction or occurrence

Need of third parties with leave of court and in court’s J

Cause of action after answer filed w/ leave of court

Service must be made on P counsel

Question 52

Cross-Claim

Answer 52

party may assert if arising out of same transaction or occurrence that is the subject matter of the original action or reconventional demand new parties may be joined

Question 53

Intervention

Answer 53

3p must be seeking to enforce a right related or connected to pending suit

Question 54

Third-Party Demand

Answer 54

D may bring into lawsuit a third party who is or may be liable to him

Question 55

Prescription

Answer 55

incidental demand not barred if not barred at time main demand was filed AND it is filed within 90 days of service of the main demand (90 days for 3p D of service)

Question 56

Motion to strike

Answer 56

court on its own or party motion to strike from a pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter

Question 57

Motion for Summary Judgment

Answer 57

Based on a claim that there is no GENUINE ISSUES OF MATERIAL FACT and mover is entitled to judgment AS A MATTER OF LAW

Question 58

MSJ Timing

Answer 58

by P after answer has been filed

D at any time

motion and supporting affidavits MUST be served at least 65 days prior to trial

Opposing memos and affidavits must be served at least 15 days before the hearing

Hearing must be set more than 30 days after motion and more than 30 days before trial

Judgment must be entered 20 days before trial

Question 59

BOP MSJ

Answer 59

on movant

if movant will not bear BOP at trial only need proof of absence of factual support of one or more elements essential

Question 60

Supporting MSJ

Answer 60

pleadings, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, admissions

Question 61

Affidavit Requirements

Answer 61

1. competent affiant
2. personal knowledge
3. facts admissible at trial

Question 62

Motion for Judgment on the Pleadings

Answer 62

any party after answer filed

Court looks at ONLY pleadings considers of the mover’s undenied allegations and opponents allegations as true

Question 62

Amending Petition

Answer 62

w/o leave prior to answer

leave of court or consent of opposing counsel required

answer to amended petition required within 10 days of service

Question 63

Amending Answer

Answer 63

D amend once within 10 days of original served

leave of court or written consent of other party

Question 64

Amending Exceptions

Answer 64

Dilatory and Declinatory amended prior to the hearing with leave or written consent of other party, BUT ONLY TO AMPLIFY

Peremptory may be amended at any time even to add new objection

Question 65

Subpoenas - Witnesses

Answer 65

who work or reside in LA to attend anywhere in the state

pay expenses for those residing and employed outside of parish and more than 25 miles from courthouse

Question 66

Subpoena Duces Tecum

Answer 66

compels witness to bring certain documents, things, or ESI

Recipient may object in 15 days after service party requesting can then move to compel and for sanctions

Question 67

Discovery

Answer 67

Party may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in pending action

need not be admissible at trial if the information is reasonably calculated to lead to discovery of admissible evidence

Question 68

Protective Orders

Answer 68

available to prevent annoyance, embarassment, oppression or undue burden or expense

Remedies:
1. prohibiting discovery
2. limiting terms of discovery
3. ordering that trade secret or confidential information not be disclosed or designate form of disclosure

Question 69

Types of discovery

Answer 69

1. depositions
2. interrogatories
3. request for production of documents or things
4. Physical and Mental exams
5. requests for release of med records
6. Requests for admissions

Question 70

Depositions

Answer 70

Place=
1. where consented
2. in state where court orders or parish where deponent resides or is employed or transacts business
3. out of state deponent in accordance of laws of foreign state if temporarily in state may be taken where he is served or where court orders

Question 71

Notice of deposition

Answer 71

reasonable notice in writing to other parties of time, place, and manner of deposition; name of deponents, any materials subpoenaed in connection with deposition
(sufficient to compel attendance of party)

non party must be subpoenaed

Question 72

Failing to Attend Depo

Answer 72

party giving notice fails to attend or serve nonparty with subpoena and witness fails to attend court may award reasonable expense and attorney’s fees incurred by other party

Question 73

Questions in Depo

Answer 73

may address any relevant, non-privileged natter, even if later inadmissible

Question 74

Depo Objections

Answer 74

stated concisely and in non-argumentative and non-suggestive manner

may instruct deponent not to answer only when to preserve privilege, enforce limitation of evidence imposed by court, prevent harassing or repetitous questions, prevent ?s seeking inadmissible and unreasonably calculated to lead to discovery of admissible evidence

Question 75

Motion to terminate depo

Answer 75

when conducted in bad faith, or to annoy, embarass, or oppress deponent or party

Question 76

Uses of Depos

Answer 76

preserve testimony

impeach at trial

Question 77

Interrogatories

Answer 77

written questions directed to ANY party

answered under oath within 30 days of service (15 in family law)

limit to 35 including subparts unless leave of court

Question 78

Option to produce business records

Answer 78

in lieu of answering interrogatories party can specify where in records answers may be found (burden similar for both parties) make records available

Question 79

Requests for Production of Docs and things

Answer 79

on any party or witness

adverse party must make available for inspection, copying, testing, sampling, or entry upon land for inspection or surveying

30 day time limit to object

party may organize docs or present them how they are kept in usual course of business

Question 80

Compelling Physical/Mental Exams

Answer 80

only if it is at issue

party conducting must give report to interested parties

disclosure waives patient-physician privilege pertaining to condition at issue

Question 81

Request for release of Medical Records

Answer 81

on any other party whose medical condition is at issue

30 days to sign release or object

Question 82

Request for admission of facts or genuineness of Docs

Answer 82

adverse party only

no answer w/in 30 presumed proved or genuine

party may object, no knowledge, admit, deny, or state privilege

“insufficient information” only with “reasonable inquiry”

insufficient answers moving party may request determination of sufficiency

Question 83

Forced to Prove Fact

Answer 83

party forced to prove fact denied

costs and attorneys fees recovered unless:
1. request was objectionable
2. admission sought was of no substantial importance
3. party failing to admit reasonably believed would prevail
4. there other good reasons not to admit

Question 84

Compelling Discovery Sanctions

Answer 84

1. adverse inference based upon failure to produce
2. exclusion of evidence
3. striking pleading
4. dismissing case or entering default
5. assessing costs and fees unless justified
6. ordering contempt

Question 85

Work Product

Answer 85

prepared by a party or his attorney in anticipation of litigation or in preparation for trial are NOT discoverable unless denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery.

Protects disclosure of anything that reflects the mental impressions, conclusions, opinions, or theories of an attorney

Question 86

Invoking Work Product Privilege

Answer 86

expressly and describe materials withheld with sufficient particularity to enable the party seeking discovery to assess applicability of the privilege

Question 87

Inadvertent Disclosure

Answer 87

no waiver of privilege if reasonably prompt notice of the inadvertance of disclosure is given to recipient

recipent must return or safeguard materials with or without notice

Question 88

Testifying Witnesses

Answer 88

name of expert is discoverable

written report prepared and signed by expert with opinions and reasons and any data or information based

include exhibits, qualifications, publications (last 10 years), compensation, and cases in precedeing 4 years

must be filed 90 days before trial or if for rebuttal only 30 days after opposing sides expert report is disclosed

Question 89

Nontestifying experts

Answer 89

only discoverable in exceptional circumstances unless examining physician

Question 90

Hearing to Determine Qualifications of Expert

Answer 90

file no later than 60 days before trial

hearing must occur at least 30 days before trial

Question 91

Duty to Supplement

Answer 91

generally no duty

1. identity of persons with knowledge of discoverable matters and expert witnesses and the subject of their testimony
2. information making previous response incorrect
3. Order of agreement

Question 92

Depo of Corporation or other Entity

Answer 92

duty to provide deponent who is qualified to answer questions posed

notice names entity and designates matters on which exam is requested

Question 93

Attorney’s Signature and Certification of Discovery

Answer 93

he has read the document and that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is:

1. consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law
2. not interposed for any improper purpose such as to harass or increase unnecessary costs, AND
3. not unreasonable, unduly burdensome, or expensive given the nature of the litigation

Question 94

Motion for Judgment on Offer of Judgment

Answer 94

20 days or more before trial party may make written offer to settle ALL claims with adverse party w/o admission liability

must state it is pursuant to article 970

if accepted any party may move for judgment within 10 days after service

Question 95

Outcomes for motion for judgment on offer of judgment

Answer 95

judgment obtained by P-offeree is at least 25% less than amount of offer of judgment made by D-offeror

OR

judgment against D-offeree is at least 25% greater amount offered by P-offeror

offeree must pay costs, exclusive of attorney’s fees incurred after offer

Include additur or remittitur

Question 96

Consolidation of Trials

Answer 96

common issues of law and fact predominate and in the interest of justice

unless:
1. jury confusion
2. prevent fair and impartial trial
3. undue advantage to party
4. prejudice rights of party

Question 97

Voluntary Dismissal

Answer 97

P may without prejudice prior to any appearance of record by D

following appearance court may decline dismissal except with prejudice

Question 98

Involuntary Dismissal

Answer 98

if P fails to appear

if there is a pending settlement either party may reinstate suit within 60 days of receipt of notice of dismissal

Question 99

Motion for Dismissal

Answer 99

non-jury trial = close of plaintiffs case that no right to relief is shown

did P present sufficient evidence to establish claim by preponderance of the evidence

court evaluates w/o any inferences in favor of plaintiff

Question 100

Motion to dismiss D not served

Answer 100

without prejudice if service on D not requested w/in 90 days of commencement of action

Question 101

Right to Jury Trial

Answer 101

all but:

1. Claim < $10,000
2. suits on promissory notes not involving fraud or forgery; AND
3. probate, partition, mandamus, habeus corpus, etc.

Question 102

When jury may be requested

Answer 102

by either party

within 10 days of filing of pleading that raise an issue triable by jury or granting of another party’s motion to withdraw jury demand

bond or cash deposit must be filed in amount and time set by court must pay $150 jury filing fee

Question 103

Peremptory Challenges

Answer 103

12 jurors = 6 + 4 if multiple parties

6 jurors = 3 + 2

prior to jury swearing in

Question 104

Challenges for Cause

Answer 104

1. lacks legal qualification
2. formed an opinion or not impartial
3. relations between juror and party or attorney likely to influence
4. been juror for same case or arising from same facts
5. takes the fifth

prior to taking of evidence

Question 105

Judge’s Instructions

Answer 105

may not comment on the facts in presence of jury but must instruct jury on law after trial

Question 106

Objections to Instructions

Answer 106

must object before or immediately after deliberation to preserve objection for appeal

Question 107

Jury size and verdict

Answer 107

12 = 9 for verdict

6 = 5

parties may stipulate around this for less and for if jurors become disqualified

Question 108

Directed Verdicts

Answer 108

motion at close of other side’s case

must contain a statement of grounds

if denied may proceed with case

facts and inferences are so overwhelmingly in favor of the moving party that reasonable persons could not reach a contrary verdict

Question 109

Judgment Notwithstanding the Verdict

Answer 109

filed within 7 days, exclusive holidays, from mailing or service of notice of signing of judgment

considering all the evidence in light most favorable to the non-moving party, if facts and inferences so strongly and overwhelmingly favor one-party that reasonable persons could not reach contrary result

Question 110

Court’s Options on JNOV

Answer 110

let verdict stand

grant JNOV

or order new trial

party whose verdict is set aside has 7 days to request new trial

can be granted on liability damages or both

Question 111

Remittiur and Additur

Answer 111

court believes verdict is so excessive or inadequate that new trial should be granted for that reason alone

may enter as alternative to new trial if the issue of quantum is clearly and fairly separable from other issues in the case

judge requests consent of adverse party as alternative to new trial

appeal is allowed

Question 112

Special Verdicts

Answer 112

court may submit written ?s to jury susceptible of categorical or brief answer, or alternative findings

Question 113

General Verdicts with Answer to interrogatories

Answer 113

submit written interrogatories with general verdict forms on one or more issues of fact necessary to a verdict

Question 114

Interlocutory Judgments

Answer 114

does not determine the merits appeal only if provided by law otherwise must seek supervisory writ or appellate review after trial on the merits

Question 115

Final Judgments

Answer 115

1.must be signed by judge

2. Clerk must mail notice of signing of judgment to all counsel of record and unrepresented party
3. file certificate of mailing in the record

Question 116

Amend of Final Judgment

Answer 116

motion of any party or court

to correct errors of calculations or alter phraseology NOT substance hearing required unless waived

Question 117

Partial Final Judgments

Answer 117

dismisses the suit as to less than all the parties

grants motion for judgment on pleadings

grants motion for summary judgment

signs judgment on principal or incidental demand

signs judgment on issue of liability when tried separately from damages

Question 118

Partial Judgment

Answer 118

judgment on less than all claims, sustains exception in part

not final UNLESS designated as final by the court after express determination there is no reason for delay

if appealed trial court retains J over remaining issues

Question 119

Finding of Facts and Reasons for Judgment

Answer 119

appealable cases other than jury trials, court SHALL issue written findings of fact and reasons for judgment if requested by party within 10 days of mailing of the notice of signing of judgment

in nonjury personal injury cases court issues finding of fact but NOT reasons whether or not requested

Question 120

Jury case and compromise agreements

Answer 120

Jury Cases=
-court must prepare and sign judgment in accordance with verdict OR order counsel to prepare and submit a judgment for signature within 10 days of verdict

Compromise agreements=
court may order counsel to prepare and submit judgment for signature within 20 days of recital in record

Question 121

Declaratory Judgments

Answer 121

type of final judgment

determining rights before a contract has been breached

Question 122

Motion for New Trial

Answer 122

granted on contradictory motion of party or court alone

granted when moving party able to demonstrate:
1. verdict is contrary to law and evidence
2. new evidence has been discovered which could not have been discovered prior to final judgment
3. or juror was compromised or bribed

also if court determines new trial is warranted

Question 123

Motion For New Trial Filing

Answer 123

within 7 days excluding holidays from mailing or service of notice of signing of judgment

Question 124

Standard for Granting New Trial

Answer 124

trial judge is free to evaluate the evidence without favoring either party

he may draw his own inferences and conclusions and may evaluate credibility of the witnesses

granted if verdict or judgment clearly contrary to law and evidence

Question 125

Annulment for Vices of Form

Answer 125

final judgment shall be annulled at any time if rendered against an incompetent not represented as required by law

against one not properly served and who has not waived an objection to jurisdiction

against one whom a valid default judgment has not been taken

or if judgment was rendered by court lacking SMJ

Question 126

Annulment for Vices of Substance

Answer 126

final judgment obtained through fraud or ill practices may be annulled

must be brought within one year of discovery on direct action not appeal

Question 127

Annulment Proper Court

Answer 127

trial court where judgment was rendered

Question 128

Appeal

Answer 128

may be taken from a final judgment

interlocutory judgment only appealable when provided by law

Question 129

Review of non-appealable judgment/orders

Answer 129

by appellate court’s supervisory writ procedure

Question 130

Appellat Court Scope of Review

Answer 130

review law and facts in civil matters (law only in criminal)

fact findings by trial judge not disturbed unless manifest error

Question 131

Writ of Certiorari

Answer 131

application for LASC to review judgment of court of appeal or objection to candidacy or election

must be filed within 30 days of mailing of notice of judgment and opinion by appeal court

30 days of mailing of notice of denial of timely filed appeal to court of appeal

Question 132

Supervisory and Original Wits LASC

Answer 132

based on LASC constitutional authority

filed in court of appeal first within reasonable time set by trial court not to exceed 30 days from date of ruling

after appellate court ruling supervisory writs must be filed within 30 days of mailing of judgment of court of appeal

Question 133

Devolutive Appeals

Answer 133

may be execution of the judgment during time of the appeal

make within 60 days of time to file JNOV has elapsed or denial of timely filed motion for new trial or JNOV is mailed

NO bond required

Question 134

Suspensive Appeals

Answer 134

suspend execution of judgment during appeal

within 30 days of when time to file JNOV has elapsed or denial of timely filed motion for new trial or JNOV is mailed

Bond required if judgment is for a sum of money

if no bond court can convert to devolutive appeal

Question 135

Method of Appealing

Answer 135

obtain order from trial court within the delay allowed upon oral motion in open court, written motion or petition

order of appeal shall state return date and the amount of security (if suspensive)

clerk then mails a notice of appeal to all parties and a notice of the estimated costs for preparing the record to the appellant by certified mail

must pay costs within 20 days of mailing of notice or trial judge may dismiss

Question 136

Return Day

Answer 136

30 days from date estimated costs are paid if no testimony is to be transcribed; OR

45 days from the date such costs are paid, if testimony is to be transcribed unless trial court fixes a lesser period

Question 137

Answer to Appeal

Answer 137

need not answer unless desire judgment be modified

15 days from later of return day or lodging of the record of appeal

Question 138

Trial Court Retains J

Answer 138

perform certain acts including taxation of costs and expert witness fees

Question 139

Dismissal of Appeal

Answer 139

not be dismissed because of an irregularity, error or defect, unless it is imputable to the appellant

motion to dismiss MUST file within 3 days exclusive holidays of return date or lodging whichever is later

basis for dismissal include:
1. consent of parties
2. lack of appellate J
3. no right to appeal
4. abandonment

Question 140

Writ of Fieri Facias

Answer 140

after time for suspensive appeal has run party may execute monetary judgment by filing for and receiving a writ of fifa

Question 141

Writ of Fifa Procedure

Answer 141

directs sheriff to seize and sell Ds property within one year

1.sheriff serves written notice of seizure on debtor and occupants by personal or domiciliary service

2. sheriff then files notice of seizure with the recorder of mortgages
3. property sold at public auction
   i) notice in local newspaper 10 days for movables 30 for immovable and 2 ads second at least 7 days preceding sale
   ii) must bring at least 2/3 appraised value
   iii) if value not satisfied readvertised and sold again for any price unless insufficient to satisfy judgment and pay sheriff’s fees
4. Sheriff distributes funds

Question 142

Garnishment and Procedure

Answer 142

Property in hands of 3p (wages, bank accounts)

may be garnished under writ of fifa

filed petition for garnishment and garnishment interrogatories along with any notice of seizure served on garnishee

Garnishee has 30 days to answer failure is proof garnishee has property or is indebted to judgment debtor Garnishee may admit to either

first 75% disposable earning exempt from seizure

Question 143

Judgment Debtor Examination

Answer 143

unpaid judgment creditor may serve “judgment debtor rule” on debtor and require him to disclose assets

court may permit deposition of 3p to aid in execution of judgment

Question 144

Revival of Money Judgment

Answer 144

any time before prescribes (10 years)

file ex parte motion in court which judgment was rendered

must include affidavit of the holder and owner of judgment stating original judgment has not been satisfied

service and citation not necessary

clerk mails noticing of signing of the revived judgment to last known address of debtor

judgment to annul can be filed by judgment debtor showing satisfied prior to revival and attorney’s fees and costs if annulled

Question 145

Writ of Possession

Answer 145

directs sheriff to deliver movable property or compels party in possession of immovable to vacate

Question 146

Writ of Distringas

Answer 146

Can be used distrain the property of the D or hold in contempt or award damages when

sheriff cannot seize because D concealed or removed it from jurisdiction of the court

OR judgment orders D to refrain from doing an act and he refuses to comply

Question 147

Specific Performance

Answer 147

judgment is for SP and party fails court may direct sheriff or some other to perform the act at cost of disobedient party

Question 148

Enforcement of Foreign Judgment

Answer 148

ordinary process OR Enforcement of Foreign Judgments Act

Question 149

Enforcement of Foreign Judgments Act

Answer 149

party must annex an authenticated copy of foreign judgment to an ex parte petition and file affidavit with last known address of judgment debtor and creditor

clerk sends notice to debtor and judgment may be executed 30 days after mailing

Question 150

Making Judgments of other LA courts Executory

Answer 150

file an ex parte petition annexing a certified copy of the judgment and praying judgment be made executory

Question 151

Summary Proceedings

Answer 151

conducted with rapidity within delays allowed by the court and without citation and observance of all formalities

only for trial and disposition of the matters

Question 152

How to Commence Summary Proceedings

Answer 152

filing contradictory motion or a rule to show cause or by petition if it is a habeus corpus, quo warranto or mandamus proceeding

Question 153

Executory Process

Answer 153

rapid forclosure and certain property may be sold WITHOUT personal judgment against debtor

mortgage or privilege by authentic act

movable property by private signature duly acknowledged

Question 154

Executory Process Procedure

Answer 154

1. Petition praying for seizure and sale and include all authentic evidence
2. Execution of a Writ of Seizure and Sale (sheriff seizes property)
3. Auction

Question 155

Debtor’s Option Prior to Auction

Answer 155

1. Injunction (extinguished, unenforceable, or procedure not followed)
2. Appeal

Question 156

Concursus

Answer 156

proceeding bringing in two or more having competing claims to money or property and requiring them to assert their claims

disputed property is placed in registry of the court

Question 157

Writ of Attachment

Answer 157

Obtained when plaintiff claims an interest in property and D is concealing himself toavoid citation

when D is non-resident

Question 158

Writ of Sequestration

Answer 158

when P claims to own, possess, or have a privilege, mortgage, or security interest on property seized and is within power of D to conceal, dispose, waste or remove from parish

Question 159

Injunction - Irreparable Injury, loss, or damage

Answer 159

upon application by petition

Irreparable = cannot be compensated by money damages

Question 160

Temporary Restraining Order

Answer 160

w/o contradictory hearing not to exceed 10 days extended for good cause

must show irreparable harm will be had, verified and contain attorney certification regarding efforts to provide notice

security required and may move to dissolve upon two days notice

Question 161

Perliminary injunction

Answer 161

requires notice and hearing, and trial on its merits

scheduled not less than 10 days from service of notice

Question 162

Permanent Injunction

Answer 162

comes after fill trial on the merits

Question 163

Security for TRO/Preliminary Injunction

Answer 163

necessary to indemnify person wrongfully restrained for damages sustained

not needed if pertains to debt that has been extinguished

Question 164

Dissolution of TRO/Preliminary injunction

Answer 164

any interest person may move to dissolve upon two days notice to adverse party

Question 165

Petitory Actions

Answer 165

P seeks judgment declaring that he is owner of the property

Must NOT have possession at time of filing suit D must be in possession or assert that he owns the property

Question 166

Possessory Actions

Answer 166

P is in possession but is being disturbed physically or in law

P’s BOP:
1. P has possession
2. Quiet uninterrupted possession for more than one year (unless force or fraud)
3. Disturbance in Fact or Law
4. Instituted within one year of disturbance

TITLE NEVER AN ISSUE

Question 167

Judgment of Petitory Action

Answer 167

D has 60 days to assert ownership or be precluded from ever asserting ownership

damages may be sought

Question 168

Notice of Pendency of Action

Answer 168

special notice of lis pendens

actions pending in LA court (state or fed) affecting title to, or asserting a mortgage or privilege on immovable property

give 3ps notice of pending action

Written notice to be given to all against whom it is to be effective

Question 169

Probate

Answer 169

Who:
any person with an interest

How:
1. filing petition praying testament be probated and executed

2. attach affidavit of death, domicile, and heirship; and present will

Question 170

Proving Will by Affidavit

Answer 170

ALL wills may be proved by affidavit unless court wishes to hear testimony

Question 171

Challenge to Probate

Answer 171

ex parte challenge is heard in a contradictory hearing and the BOP of authenticity is on proponent of the will

Question 172

Annulment

Answer 172

P has burden proving invalidity of notarial testament, a nuncupative testament by public act or a statutory testament

D has burden for 3 months after probate after that its on P

Question 173

Videotaped Testaments

Answer 173

Admissible as EVIDENCE if testator’s sworn oath is recorded, of the following:

1. proper exectution of testament
2. intentions
3. mental state or capacity
4. authenticity
5. by matter the court deems relevant to probate

Question 174

Intestate Successions

Answer 174

1. File petition for possession along with the affidavit of death, domicile, and heirship
2. Inventory or sworn descriptive list of assets is prepared
   i) sworn and subscribed by person filing it
   ii) show location of property
   iii) state FMV at date of decedent’s death
3. Judgment granted ex party
4. Surviving spouse must join claim

Creditors have three months from date of judgment of possession in which to file a claim heirs must then post a bond or judgment will be dissolved

Question 175

Testate Succession

Answer 175

1. Probated
2. Petition of possession
3. Inventory prepared
4. Executor must join

Question 176

Creditor Sue Succession Rep

Answer 176

to enforce a claim against the succession until the representative has rejected the claim

failure to act within 30 days is rejection

Question 177

Small Successions Qualifications

Answer 177

1. valued $125,000 or less at time of death
   OR
2. any value for decedent who died at least 20 years prior
   OR
3. Decedent who has died testate and left no immovable property and probate of testament would have same effect as if decedent died intestate

Question 178

Small Successions Procedure

Answer 178

Not required if sole heirs are descendants, ascendants, siblings, or surviving spouse

Affidavit setting forth:
1. date of death
2. deceased died intestate or testate
3. marital status of deceased
4. if no surviving spouse, signed by two heirs (no spouse one heir = signed by second person w/ knowledge of the succession matters)
5. Include names and addresses of heirs, cert copies of probated testaments from annother state and a description and value of property and interests in that property

Question 179

Partition Options

Answer 179

divisible in kind or by licitation

Question 180

Tutorship Lawfully Dispose of Property

Answer 180

1. description of property, price and conditions of proposed sale, and why its advantageous
2. tutor’s recommendation that sale be approved because above-market valued proposed sale; AND
3. Written concurrence of the undertutor

Question 181

Eviction Procedure

Answer 181

1. right to occupancy ceases lessor delivers notice to vacate within 5 days of delivery

**May be attached to door id lessee whereabouts unknown

2. Rule to show cause - Deliver the Premises (lessee fails to vacate)
3. Lessor takes possession (immediate if abandoned)
4. Rule Heard (no earlier than third day after service)
5. Failure within 24 hours of judgment (direct sheriff to take property may break down door)
6. No Suspensive Appeal unless D contested the rule and posted bond within 24 hours of judgment

Question 182

Habeas Corpus

Answer 182

commanding person who has another in custody to produce him in court and state the authority for custody

Question 183

Mandamus

Answer 183

writ directing public officer to perform a ministerial duty required by law or directing a corporation to perform duty

Question 184

Quo Warranto

Answer 184

direct individual to show by what authority he claims to hold public or corporate office

Question 185

Testing Validity of a Bond

Answer 185

any person in interest can test the sufficiency by ruling the party into court to show cause why the bond should not be decreed insufficient or valid and why the particular proceeding for which the bond was furnished should not be set aside