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LA Civ Pro Flashcards

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1
Q

Parish Courts

A

<$20k

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2
Q

City Courts

A

<$15k

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3
Q

Justice of the Peace Courts

A

<$5k

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4
Q

District Courts J

A

original general jurisdiction

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5
Q

Courts of Appeal

A

appeal of right in any civil matter

review questions of law and fact

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6
Q

Supreme Court

A

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

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7
Q

Personal Jurisdiction

A
  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
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8
Q

Long Arm Personal Jurisdiction

A

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
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9
Q

Long Arm Contact Actions

A
  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
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10
Q

In Rem J

A

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

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11
Q

Quasi In Rem J

A

render money judgment against nonresident by attachment property

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12
Q

Venue

A

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

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13
Q

Change of Domicile

A

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

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14
Q

Joint or Solidary Obligors Venue

A

proper to one is proper to all

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15
Q

Tort Venue

A
  1. damages sustained
  2. wrongful conduct occurred
  3. D is domiciled
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16
Q

Establish or Disavow Filiation Venue

A

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

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17
Q

Custody and Child support

A

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

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18
Q

Succession Venue

A

MUST be in court where succession is pending

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19
Q

Direct Action Statute

A

sue insurer directly

  1. where accident occurred
  2. Where could be brought
  3. Insured must be joined
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20
Q

Forum Non Conveniens

A

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

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21
Q

Nonwaivable Venue

A
  1. annul prior judgment
  2. succession - domicile of decedent
  3. annulment or divorce actions
  4. emancipation, tutorship, interdiction
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22
Q

Mandatory Recusal

A
  1. potential witness
  2. employed or consulted with attorney
  3. represented cause
  4. related by blood or marriage to party
  5. otherwise biased
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23
Q

Permissive Recusal

A
  1. associated with attorney
  2. judge performed a judicial act in case in another court
  3. relationship between judge and attorney appearing preventing fairness
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24
Q

Recusal Procedure

A

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

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25
Q

Attorney Obligations as Officer of the Court

A
  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
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26
Q

Res Judicata

A

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

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27
Q

Cumulate Actions = P v D

A
  1. action is within court’s J and brought in proper venue; AND
  2. mutually consistent and employ same form of procedure
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28
Q

Cumulate Ps or Ds

A
  1. community of interest
  2. actions are within court’s J
  3. actions are consistent and employ same form of procedure
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29
Q

Lis Pendens

A

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

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30
Q

Abandonment

A

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

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31
Q

Class Action Requirements

A
  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
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32
Q

Further Class Action Requirement

A

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

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33
Q

Derivative Actions

A

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

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34
Q

Joinder

A

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
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35
Q

Factors - party cannot be made party

A
  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
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36
Q

Form of Petition

A

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
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37
Q

Attorney’s Signature

A

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
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38
Q

No Monetary Amount

A

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

allege claim exceeds or is less than required amount

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39
Q

Making Service

A

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)
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40
Q

Sheriff’s Return

A

Affidavit must be filed to show service

evidence of correct service

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41
Q

Default Judgment

A

may be entered against D in failure to respond timely

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42
Q

Answer

A

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

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43
Q

Contents of answer

A

admits or denies allegations

can claim lack of knowledge, information, to form belief

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44
Q

Affirmative defense

A
  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

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45
Q

Exceptions

A

Used to retard or dismiss proceeding

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46
Q

Declinatory Exceptions

A

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

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47
Q

Dilatory Exceptions

A

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

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48
Q

Peremptory Exceptions

A

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

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49
Q

Peremptory Timing

A

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)

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50
Q

Incidental Demand Types

A
  1. Reconventional Demand
  2. Cross-Claim
  3. Intervention
  4. Third-Party Demand
  5. Prescription
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51
Q

Reconventional Demand

A

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

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52
Q

Cross-Claim

A

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

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53
Q

Intervention

A

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

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54
Q

Third-Party Demand

A

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

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55
Q

Prescription

A

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)

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56
Q

Motion to strike

A

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

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57
Q

Motion for Summary Judgment

A

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

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58
Q

MSJ Timing

A

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

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59
Q

BOP MSJ

A

on movant

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

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60
Q

Supporting MSJ

A

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

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61
Q

Affidavit Requirements

A
  1. competent affiant
  2. personal knowledge
  3. facts admissible at trial
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62
Q

Motion for Judgment on the Pleadings

A

any party after answer filed

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

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62
Q

Amending Petition

A

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

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63
Q

Amending Answer

A

D amend once within 10 days of original served

leave of court or written consent of other party

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64
Q

Amending Exceptions

A

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

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65
Q

Subpoenas - Witnesses

A

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

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66
Q

Subpoena Duces Tecum

A

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

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67
Q

Discovery

A

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

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68
Q

Protective Orders

A

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

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69
Q

Types of discovery

A
  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
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70
Q

Depositions

A

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

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71
Q

Notice of deposition

A

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

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72
Q

Failing to Attend Depo

A

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

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73
Q

Questions in Depo

A

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

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74
Q

Depo Objections

A

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

75
Q

Motion to terminate depo

A

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

76
Q

Uses of Depos

A

preserve testimony

impeach at trial

77
Q

Interrogatories

A

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

78
Q

Option to produce business records

A

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

79
Q

Requests for Production of Docs and things

A

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

80
Q

Compelling Physical/Mental Exams

A

only if it is at issue

party conducting must give report to interested parties

disclosure waives patient-physician privilege pertaining to condition at issue

81
Q

Request for release of Medical Records

A

on any other party whose medical condition is at issue

30 days to sign release or object

82
Q

Request for admission of facts or genuineness of Docs

A

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

83
Q

Forced to Prove Fact

A

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

84
Q

Compelling Discovery Sanctions

A
  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
85
Q

Work Product

A

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

86
Q

Invoking Work Product Privilege

A

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

87
Q

Inadvertent Disclosure

A

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

88
Q

Testifying Witnesses

A

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

89
Q

Nontestifying experts

A

only discoverable in exceptional circumstances unless examining physician

90
Q

Hearing to Determine Qualifications of Expert

A

file no later than 60 days before trial

hearing must occur at least 30 days before trial

91
Q

Duty to Supplement

A

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
92
Q

Depo of Corporation or other Entity

A

duty to provide deponent who is qualified to answer questions posed

notice names entity and designates matters on which exam is requested

93
Q

Attorney’s Signature and Certification of Discovery

A

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
94
Q

Motion for Judgment on Offer of Judgment

A

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

95
Q

Outcomes for motion for judgment on offer of judgment

A

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

96
Q

Consolidation of Trials

A

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

97
Q

Voluntary Dismissal

A

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

following appearance court may decline dismissal except with prejudice

98
Q

Involuntary Dismissal

A

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

99
Q

Motion for Dismissal

A

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

100
Q

Motion to dismiss D not served

A

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

101
Q

Right to Jury Trial

A

all but:

  1. Claim < $10,000
  2. suits on promissory notes not involving fraud or forgery; AND
  3. probate, partition, mandamus, habeus corpus, etc.
102
Q

When jury may be requested

A

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

103
Q

Peremptory Challenges

A

12 jurors = 6 + 4 if multiple parties

6 jurors = 3 + 2

prior to jury swearing in

104
Q

Challenges for Cause

A
  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

105
Q

Judge’s Instructions

A

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

106
Q

Objections to Instructions

A

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

107
Q

Jury size and verdict

A

12 = 9 for verdict

6 = 5

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

108
Q

Directed Verdicts

A

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

109
Q

Judgment Notwithstanding the Verdict

A

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

110
Q

Court’s Options on JNOV

A

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

111
Q

Remittiur and Additur

A

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

112
Q

Special Verdicts

A

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

113
Q

General Verdicts with Answer to interrogatories

A

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

114
Q

Interlocutory Judgments

A

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

115
Q

Final Judgments

A

1.must be signed by judge

  1. Clerk must mail notice of signing of judgment to all counsel of record and unrepresented party
  2. file certificate of mailing in the record
116
Q

Amend of Final Judgment

A

motion of any party or court

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

117
Q

Partial Final Judgments

A

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

118
Q

Partial Judgment

A

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

119
Q

Finding of Facts and Reasons for Judgment

A

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

120
Q

Jury case and compromise agreements

A

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

121
Q

Declaratory Judgments

A

type of final judgment

determining rights before a contract has been breached

122
Q

Motion for New Trial

A

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

123
Q

Motion For New Trial Filing

A

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

124
Q

Standard for Granting New Trial

A

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

125
Q

Annulment for Vices of Form

A

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

126
Q

Annulment for Vices of Substance

A

final judgment obtained through fraud or ill practices may be annulled

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

127
Q

Annulment Proper Court

A

trial court where judgment was rendered

128
Q

Appeal

A

may be taken from a final judgment

interlocutory judgment only appealable when provided by law

129
Q

Review of non-appealable judgment/orders

A

by appellate court’s supervisory writ procedure

130
Q

Appellat Court Scope of Review

A

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

fact findings by trial judge not disturbed unless manifest error

131
Q

Writ of Certiorari

A

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

132
Q

Supervisory and Original Wits LASC

A

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

133
Q

Devolutive Appeals

A

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

134
Q

Suspensive Appeals

A

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

135
Q

Method of Appealing

A

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

136
Q

Return Day

A

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

137
Q

Answer to Appeal

A

need not answer unless desire judgment be modified

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

138
Q

Trial Court Retains J

A

perform certain acts including taxation of costs and expert witness fees

139
Q

Dismissal of Appeal

A

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

140
Q

Writ of Fieri Facias

A

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

141
Q

Writ of Fifa Procedure

A

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

  1. sheriff then files notice of seizure with the recorder of mortgages
  2. 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
  3. Sheriff distributes funds
142
Q

Garnishment and Procedure

A

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

143
Q

Judgment Debtor Examination

A

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

144
Q

Revival of Money Judgment

A

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

145
Q

Writ of Possession

A

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

146
Q

Writ of Distringas

A

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

147
Q

Specific Performance

A

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

148
Q

Enforcement of Foreign Judgment

A

ordinary process OR Enforcement of Foreign Judgments Act

149
Q

Enforcement of Foreign Judgments Act

A

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

150
Q

Making Judgments of other LA courts Executory

A

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

151
Q

Summary Proceedings

A

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

152
Q

How to Commence Summary Proceedings

A

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

153
Q

Executory Process

A

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

154
Q

Executory Process Procedure

A
  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
155
Q

Debtor’s Option Prior to Auction

A
  1. Injunction (extinguished, unenforceable, or procedure not followed)
  2. Appeal
156
Q

Concursus

A

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

157
Q

Writ of Attachment

A

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

when D is non-resident

158
Q

Writ of Sequestration

A

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

159
Q

Injunction - Irreparable Injury, loss, or damage

A

upon application by petition

Irreparable = cannot be compensated by money damages

160
Q

Temporary Restraining Order

A

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

161
Q

Perliminary injunction

A

requires notice and hearing, and trial on its merits

scheduled not less than 10 days from service of notice

162
Q

Permanent Injunction

A

comes after fill trial on the merits

163
Q

Security for TRO/Preliminary Injunction

A

necessary to indemnify person wrongfully restrained for damages sustained

not needed if pertains to debt that has been extinguished

164
Q

Dissolution of TRO/Preliminary injunction

A

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

165
Q

Petitory Actions

A

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

166
Q

Possessory Actions

A

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

167
Q

Judgment of Petitory Action

A

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

damages may be sought

168
Q

Notice of Pendency of Action

A

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

169
Q

Probate

A

Who:
any person with an interest

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

  1. attach affidavit of death, domicile, and heirship; and present will
170
Q

Proving Will by Affidavit

A

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

171
Q

Challenge to Probate

A

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

172
Q

Annulment

A

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

173
Q

Videotaped Testaments

A

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
174
Q

Intestate Successions

A
  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

175
Q

Testate Succession

A
  1. Probated
  2. Petition of possession
  3. Inventory prepared
  4. Executor must join
176
Q

Creditor Sue Succession Rep

A

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

failure to act within 30 days is rejection

177
Q

Small Successions Qualifications

A
  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
178
Q

Small Successions Procedure

A

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

179
Q

Partition Options

A

divisible in kind or by licitation

180
Q

Tutorship Lawfully Dispose of Property

A
  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
181
Q

Eviction Procedure

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

**May be attached to door id lessee whereabouts unknown

  1. Rule to show cause - Deliver the Premises (lessee fails to vacate)
  2. Lessor takes possession (immediate if abandoned)
  3. Rule Heard (no earlier than third day after service)
  4. Failure within 24 hours of judgment (direct sheriff to take property may break down door)
  5. No Suspensive Appeal unless D contested the rule and posted bond within 24 hours of judgment
182
Q

Habeas Corpus

A

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

183
Q

Mandamus

A

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

184
Q

Quo Warranto

A

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

185
Q

Testing Validity of a Bond

A

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

LA BAR (25 decks)

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