LA Civ Pro Old Exam Questions Flashcards
1
Q
At conclusion of 3 day bench trial, judge rules from bench and a/g your client (∏), stating only that she finds in favor of defendant. Opposing counsel has j’ment prepared and presents it to the trial court for signature in open court. You believe TC’s ruling is incorrect and want to get a better understanding of the TC’s reasons for decision beyond the simple statement that she has ruled in favor of ∏. What can you do and in what time limits?
A
You can request the court to provide in writing its findings of facts and reasons for j’ment, provided the request is made not later than 10 days a/f the mailing of the notice of signing of the j’ment
2
Q
What is the delay for requesting service of citation on all named Δ’s in a civil action? If not timely made, what action can be taken to obtain dismissal?
A
Service of citation must be requested on all named Δ’s within 90 days of commencement of the action.
To dismiss the action, you would file a contradictory motion to dismiss for failure to request timely service.
3
Q
3P’s may __________ in a lawsuit to enforce a right related to the pending lawsuit.
A
Intervene
4
Q
What must an applicant show in order to obtain a temporary restraining order?
A
The applicant must show by verified petition or supporting affidavit that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his atty can be heard in opposition; and the applicant’s atty certifies in writing to the court the efforts he made to give notice to the opposition or the reasons notice shouldn’t be required
5
Q
When a lawyer signs a pleading filed for a client, what does the lawyer signify personally?
A
When a lawyer signs a pleading for a client, he is certifying that he has read the pleading, & to the best of his knowledge, information & belief formed after a reasonable inquiry, the pleading: (1) is not being used for any improper purpose such as to harass, delay or increase costs;
(2) is warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law;
(3) has or is likely to have evidentiary support; &
(4) each denial is warranted by the evidence or reasonably based on lack of information or belief.
6
Q
Client brings you a partition suit in which she has been named a Δ, along with 10 others. She believes that she has a claim a/g the ∏ for a timber trespassing occurring on a different but adjacent parcel of land that she solely owns. Can she assert that timber trespass claim a/g the ∏ in this lawsuit?
A
Yes, she can bring the timber trespass claim a/g ∏ in this partition action even though the trespass action involves a different parcel altogether and bears no connexity, factual or legal to the partition claim.
Client can assert her timber trespass claim in a reconventional demand a/g ∏.
Unlike other incidental demands, a reconventional demand need not be related to the main demand.
Note: client can’t assert a cross claim a/g co-Δ b/c that demand must arise out of the same T or O that is the subject matter of the original action
7
Q
Siblings want to bring partition action for immovable property before a certain city court judge that they all like…can they do it?
A
The partition action can’t be filed in that court, irrespective of all the sibling’s consent, b/c city courts have no jurisdiction over partition proceedings
8
Q
You are defending a personal injury case, you believe the evidence plainly demonstrates that despite the clear liability of the Δ the damages are very minor. You made reasonable settlement offer, but it was rejected without a counter-offer. Can anything be done to recover those costs from ∏ who has refused to respond to your offer?
A
- Make a written offer to settle all claims at least 20 days prior to trial and state that the offer is made pursuant to LA CCP art. 970. The offer may be made without admitting liability.
- if the offer is not accepted and the final j’ment obtained by the ∏-offeree is at least 25% less than the amt of the offer of j’ment, the ∏ must pay Δ’s costs, exclusive of atty’s fees, incurred a/f the offer was made, as fixed by the court
- this is called a motion for j’ment on offer of j’ment
9
Q
Δ counsel continues to make lengthy objections during deposition seemingly to guide and instruct deponent as to how to answer. Are such objections appropriate?
A
No. The CCP requires that any objection made during a depo shall be treated concisely and in a non-argumentative and non-suggestive manner.
While Δ 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 these objections.
Most objections are preserved for trial even if not made during the depo
10
Q
Client tells you that his former acct has docs that are very helpful to the case but she refuses to give documents to him. The acct is not someone from whom you want to obtain testimony. All you want are her records. What can you do to obtain the records from the acct without taking her testimony?
A
If not a party to the lawsuit, serve the acct with a subpoena duces tecum wherein the court orders her to produce the documents.
If the acct is a party to the proceedings, you may simply propound a request for production of documents.
11
Q
T filed his petition for divorce on July 10, 2006. On July 17, 2006 a deputy sheriff served a copy of the citation and petition on E, Wifes brother, at his office. Wife works in the same office as her brother and is living with him a/f leaving her husband. Was the service of process proper?
A
Proper domiciliary service requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served. Presumably, wife, who works in her brothers office doesn’t live there. Therefore service was improper.
12
Q
You are seeking to probate the last will and testament of your client’s father. Client’s sister is opposing the probate. Client has videotape of his late father executing the will in question. You review the video and determine that it shows approx the last half of the meeting b/w your client’s father and the father’s lawyer at which the will was signed. While your father appears to be mentally sound in the video, the video doesn’t depict the testator’s oath being given to your clients father. Is the videotape admissible as evidence at the trial to probate the testament?
A
No. Videotape of the execution of a testament by the testator is admissible as evidence of, inter alia, the mental capacity of the testator provided the testator’s sworn oath is recorded on the videotape. Since the videotape doesn’t show the client’s father being given the oath, it is inadmissible.
13
Q
Assuming the service was not proper, what pleading needs to be filed in order to challenge the validity of the service of process? When must that pleading be filed?
A
A declinatory exception of insufficiency of service of process. It must be raised prior to or in the answer, or prior to confirmation of a default j’ment, and not later than any other declinatory or dilatory exceptions.
14
Q
Witness lives in TX and refuses to return to LA to have his depo taken. You absolutely must take his depo as his testimony is an essential element in the proof of your client’s case which is pending in the civil dist court for the parish of Orleans. How can you obtain the testimony of the TX witness in the LA action?
A
You have several options
- if the witness is willing to testify, but doesn’t want to travel to LA, you may take his depo by telephone, if all parties to the suit agree
- if unwilling to testify, you can compel the witness to do so by letters rogatory
a. since the deposition would take place in TX, TX law would govern the compulsory process to require witness to submit to the depo
b. you would give written notice of the depo to all parties and apply to the district court for letters rogatory, addressed to the TX ct, requesting the appropriate TX court to compel witnesses attendance at the depo - another option would be to serve witness with a subpoena while he is temp in LA
15
Q
You represent ∏ in a lawsuit a/g multiple Δ’s. one Δ files a res judicata exception that is granted, dismissing Δ from lawsuit. On wed Jan 25, 2006 you receive by mail a notice of the j’ment dated and mailed on Friday Jan 20, 2006, enclosing a copy of the formal j’ment signed on Wed, Jan 18, 2006 granting the exception and dismissing Δ, w/prejudice from the suit. The formal j’ment bears no designation by the court. ∏ asks whether this dismissal may be appealed now and if so, the deadlines.
A
This is a partial final j’ment since it dismisses only one of the defendants to the suit without dismissing the others. When a court dismisses one party from the suit, as in this case, a final j’ment can be rendered and signed by the court without an express designation by the court that it is an appealable final j’ment.
The delay to file the appeal would begin to run from the date of the mailing of the notice of j’ment – Jan 20. a suspensive or devolutive appeal must be taken within 30 or 60 days, respectively, of the time for filing a motion for new trial or JNOV, which, in turn is within 7 days, exclusive of holidays of mailing of notice of signing of j’ment.
16
Q
You have just obtained a j’ment a/g debtor for the payment of 150K to client. Although the time for suspensively appealing the j’ment has run, debtor has recently filed a petition for devolutive appeal. Client wants to execute on the j’ment as soon as possible. You know debtor is employed at bank and that she owns an auto, but are unsure as to what other assets she possesses
Can you execute on the j’ment at this point? If so, explain how.
A
- yes, client may execute on j’ment once the time for taking a suspensive appeal has elapsed, which it has here. A devolutive appeal doesn’t suspend execution of the j’ment
- to begin execution, client must file for a writ of fieri facias which directs sheriff to seize and sell property – sheriff can seize any time within one year of writs issuance – sheriff must service notice of seizure on debtor and file Mennonite notices to all parties who requested such notice
- the auto will be sold at public auction a/f notice is given by ad in paper at least 10 days b/f sale – must bring 2/3 of its appraised value or no sale and it must be readvertised and second auction held, at which the auto can be sold for any price – if bid is insufficient, no sale – if bid is sufficient, property is sold and funds distributed by sheriff paying off higher ranking creditors first, client, inferior creditors, and if anything remains, debtor.
- Client can also file a writ of FIFA to garnish debtors wages, by filing petition for garnishment and garnish interrogatories. Client must serve citation, petition, interrogatories and notice of seizure on bank that has 15 days to answer inter. Failure is prima face proof that bank pays debtor salary. If bank admits the court will order bank to pay debtors wages when due. First 75% of debtor’s disposable earnings is exempt from seizure
17
Q
You have just obtained a j’ment a/g debtor for the payment of 150K to client. Although the time for suspensively appealing the j’ment has run, debtor has recently filed a petition for devolutive appeal. Client wants to execute on the j’ment as soon as possible. You know debtor is employed at bank and that she owns an auto, but are unsure as to what other assets she possesses
Assume you can execute on the j’ment. Identify two steps you can take to determine what other assets debtor possesses and to otherwise execute on the j’ment.
A
- file and serve a motion for examination of j’ment debtor (j’ment debtor rule) on debtor which will require her to disclose her assets. The motion may request debtor to bring financial books and records and ct will order her to appear in ct not less than five days from the ate of service of the motion/order. Debtor must then appear and answer Q’s from client’s counsel a/b her finances under oath. Failure to appear is punishable as contempt and the costs associated with the exam are taxed a/g the debtor unless ct determines that exam was unnecessary – a second step would be to file a motion to take the depo of any 3P who may have knowledge or info concerning debtors assets
- debtor’s homestead would be exempt from seizure, limited to 25K of value of homestead (other exemptions: property necessary to perform one’s trade/profession, personal servitude of habitation; household items; wedding or engagement rings up to 5K and federal earned income tax credit)
18
Q
A court may order separate trials on the issues of liability and damages, in a jury or non-jury trial, to simplify the proceedings, permit a more orderly disposition of the case, or otherwise in the interest of justice. The court can only bifurcate the issues of liability and damages upon _______________
A
Consent of all the parties. So if ∏ opposes the motion, deny motion for separate trials.
19
Q
An action on a K may be brought _______________ or ___________
A
- in the parish where the K was executed, or
- where any work or service was performed or to be performed
argument here also that venue is proper in the parish where payments of the contract amount were made Guaranty Bank of Mamou – but argument that merely sending payments to the K doesn’t constitute “work or service” performed under the K as contemplated by 76.1
20
Q
Succinctly describe the pleadings required to bring an executory process action a/g Δ:
A
- executory process requires a promissory note to be secured by a mortgage executed by an authentic act containing a confession of j’ment
- client would have to file a petition for executory process praying for seizure and sale and include all authentic evidence
21
Q
If client is not in possession of property in question, he needs to bring a __________ action seeking a j’ment declaring that he is the owner of the property. In this action client has to demonstrate:
A
Petitory Action
- demonstrate that he does not have possession at the time of filing the suit and that neighbor is in possession or claiming ownership (inferred by an action like constructing a fence)
- client would have to prove that he has better title to the property than neighbor
22
Q
Can a tort action, a petitory action, and an action for executory process be brought in a single lawsuit?
A
No. Since the tort and petitory actions are ordinary proceedings, they can’t be cumulated with the action for executory process which employs a different form of procedure
23
Q
The requirements for maintaining a class action are:
A
- numerosity
- questions of law and fact common to the class
- the claims are typical of those of the class
- ∏’s will fairly and adequately protect the interests of the class, and
- there are ascertainable criteria for objectively defining the class
24
Q
You represent Δ driver in a personal injury lawsuit arising from an accident. At the beginning of the litigation, ∏’s counsel propounded interrogatories asking your client to id all witnesses to the accident, which you timely and accurately answered. Two weeks b/f trial you learn of a new, previously unidentified witness who observed the accident. You don’t plan to call this witness at trial, since her testimony will be adverse to your clients interests. What responsibility, if any, do you have to divulge the identity of this new witness to opposing counsel?
A
Generally there is no duty to supplement discovery responses which were complete when made. However, one exception to this rule is that there is a duty to supplement regarding, as is the case here, the identity of a new witness with knowledge of discoverable matters. Therefore counsel must divulge the identity of this new witness.
25
Chemical Company has been sued for injuries caused by the leak of a chemical that it manufacturers. Counsel for chemical co investigates the accident and determines that the leak was caused by the failure of a value manufactured by Valve Corp and sold to Chemical Co. Please explain what action, if any counsel should take on behalf of his client and why.
Counsel should file a 3P demand a/g Valve Corp b/c the defective valve caused ∏’s injuries. Thus valve corp may be liable to chemical corp for all or part of the principal demand made by ∏
26
What obligations, if any, does an atty have as an officer of the court?
1. As atty, an officer of the court, must conduct himself at all times with decorum and in a manner consistent with the dignity and authority of the court
2. He must treat the court, its officers, jurors, witnesses and opposing counsel with due respect;
3. he must not interrupt opposing counsel or impede the orderly administration of justice and
4. he must not knowingly encourage or produce false evidence or make false representations or otherwise deceive the court
27
Client asks you to defend him in an ongoing lawsuit following the untimely death of his prior counsel. The lawsuit, which was brought a/g him 4 yrs ago involves a claim of patent infringement. Discovery was propounded to client at the same time the lawsuit was filed, which discovery has never been answered. The suit record and the files of clients prior counsel reflect no other action or activity in the case. What course of action do you recommend for client?
Client need not take any action. Since there has not been any step in the prosecution or defense of this case for 3 years, the suit is deemed abandoned. Abandonment is effective without formal order, but client could file an ex parte motion to dismiss on grounds of abandonment and the court will enter a formal order of dismissal
28
What legal procedure can you institute to have a recorder of mortgages perform her duty to cancel an illegal or unauthorized inscription on the mortgage records?
You may use a writ of mandamus directed to the recorder of mortgages, a public officer, to compel her to perform a ministerial duty required by law; in this case, to remove an unauthorized inscription on the mortgage records
29
Δ answers ∏’s petition, requesting a trial by jury. 9 months a/f the answer was filed, Δ files a motion to withdraw its request for a jury trial, which is granted. May ∏ now file a request for trial by jury despite the fact that she had not requested a jury trial in her original petition and if so what deadlines exist?
Yes. ∏ may request a jury trial within 10 days of the granting of Δ’s motion to withdraw his jury demand
30
June 2, 2004 – W fatally injured
May 20, 2005 – S filed and had served a WD and survival action as natural tutrix on behalf of her three children who are acknowledged illegitimate children of W
August 3, 2005 – E (W’s wife) filed a petition of intervention into the action filed by S, asserting a WD and survival action.
Δ has filed an exception of prescription in opposition to the intervention – what result?
La courts have held that an intervention is an incidental demand which is not barred by Rx as long as it was not barred at the time the main demand was filed, and is filed within 90 days of service of the main demand.
Since the intervention claim had not Rx when the main demand was filed on May 20 and the intervention was filed Aug 3, within 90 days of main demand, the exception of Rx should be denied
31
While an Appellee generally need not answer an appeal, he must answer the appeal if he desires inter alia _________
Damages a/g the appellant. So if Δ did not answer the appeal, he will be foreclose from now seeking damages
32
Three weeks a/f requesting service, you receive a return on service certifying that the sheriff’s office has been unable to effect service, having been told that Mr. Jones no longer resides at the address provided. You client informs you that he remains in the area and is simply dodging service. What steps can you take to have someone other than the sheriff’s office locate and serve Mr. jones? Explain procedure and requirements:
You can have the court appoint a private person, who is not a party, over the age of majority and residing in the state, to make service in the same manner as is required by sheriffs. The motion should state that the sheriff has been unable a/f 10 days and diligent effort to make service on Δ.
33
The peremptory exception of Rx may be pleaded _______________
At any time prior to the submission of the case for decision
34
If client is in possession of the property and possession has been disturbed, what proceeding may be instituted to prevent Δ from continuing to disturb client’s quiet enjoyment of the land?
Client can file a possessory action b/c he is in possession of the property and that possession is being disturbed. To maintain the possessory action, client must allege and prove that:
1. he had possession at the time of the disturbance;
2. he and his ancestors in title had quiet possession without interruption for more than a year immediately prior to the disturbance;
3. the disturbance did in fact occur; and
4. the possessory action was instituted within a year of the disturbance
35
Client has informed you that Brother has petitioned Court to probate the testament of Deceased Father. Client wants you to oppose the probate on the grounds of the invalidity of the testament.
What pleadings or documents must you prepare in order to accomplish Client’s desires?
Prepare an opposition to the petition for probate
36
Client has informed you that Brother has petitioned Court to probate the testament of Deceased Father. Client wants you to oppose the probate on the grounds of the invalidity of the testament.
What must you state or allege in your documents to comply with the appropriate pleading requirements?
1. It must be in writing and state:
a. the name, surname and domicile of the opponent
b. the interest of the opponent in filing the opposition; and
c. the grounds for opposing the petition (i.e. invalidity of the testament and grounds of invalidity)
37
Client has informed you that Brother has petitioned Court to probate the testament of Deceased Father. Client wants you to oppose the probate on the grounds of the invalidity of the testament.
How is the will contest resolved and who bears the BOP?
A responsive pleading may be filed by Brother by summary proceeding. At a contradictory trial to probate the testament, Brother, the proponent, bears the burden of proving the authenticity of the testament and its compliance with all of the formal requirements of law
38
The concursus petition must allege _____________ and request ____________
Must allege the nature of the conflicting claims and request that each defendant assert their respective claims contradictorily a/g all other parties to the proceeding
39
The authority of a LA court to exercise personal jurisdiction over a non-resident corporation under the LA long arm statute and constitutional principles is not always clear. Under a long line of US SC cases, in order for LA court to exercise jurisdiction over a non-resident corporation, the non-resident must have:
1. minimum contacts with the state of LA, and
2. the exercise of jurisdiction by the LA court over the non-resident must be “fair” – balancing the interest of both parties to the litigation. In applying this vague test, the courts frequently scruitinze whether the non-resident defendant has “purposefully directed its activities at residents of the forum state”
40
An exception of improper venue is a declinatory exception which must be filed _____________
Prior to or with the answer
41
If client wants a change in venue, may be able to 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 ________________ and ______________
Brought for the convenience of the parties and in the interest of justice
42
Deceased died in Acadia Parish. At the time of his death, he was domiciled in Beauregard Parish and owned immovable property in Cameron parish. In which parish must a proceeding to open his succession be brought?
Beauregard Parish. A succession must be brought where the decedent was domiciled. This venue is non-waivable.
43
Witness lives in Houma LA which is approx 300 miles from Bossier Parish where the lawsuit is pending. ∏ wants to present witness’s testimony live at trial. Can witness be compelled to testify at trial in Bossier parish?
Witnesses may be subpoenaed to provide testimony at 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. However, since witness resides more than 25 miles from the trial venue, ∏ 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/mile, a witness fee of $25/day and hotel and meal expenses at the rate of $5/day
44
You wish to depose counsel of record for Δ in order to uncover evidence concerning the intent of the parties to the K that was drafted by counsel of record and that forms the basis for the lawsuit. Can you depose Counsel of Record? If so, what must you do in order to obtain his depo?
Prob not b/c such testimony would likely disclose privileged atty-client communications b/w counsel of record and defendant. No atty of record representing the ∏ or the Δ may be deposed except under extraordinary circumstances and then only by order of the district court a/f contradictory hearing.
45
Client has been sued by brother who has been interdicted and is confined in a psychiatric hospital based upon a commitment for schizophrenia. Brother has brought the suit in his own name. is there any action you can take for client to obtain the dismissal of this suit?
Yes. File a dilatory exception of lack of procedural capacity since interdicts may not file suit in their own name. rather a curator must first be appointed by the court to file suit on behalf of brother
46
What is the Judge’s duty as to the instructions that she must give the jury?
1. a/f the trial of the case and the presentation of all evidence and arguments, the court must instruct the jurors on the law applicable to the cause
2. the court must reduce these instructions to writing
3. the court must further instruct the jury that it may take with it or have sent to it a written copy of all instructions and charges and any object or document received in evidence when a physical exam thereof is required to enable the jury to reach its verdict
47
What must you do to in order to preserve your objection to an improper jury charge? And when must it be done?
∏ may not assign as error the giving of any instruction unless you object thereto either before the jury retires to consider its verdict or immediately a/f the jury retires, stating specifically the matter to which you object and the grounds of your objection
If you object prior to the time the jury retires, you will be given an opportunity to make the objection out of the hearing of the jury
48
You have sued Auto Manf on behalf of client injured by defective seatbelt. You want to depose officials of auto manf about manf practices, including design of the seatbelt. However, you don’t know which officials would be most knowledgeable about that subject. What action can you take to obtain the depo’s of these officials without knowing their identity?
You should file an article 1442 notice of an organization, naming as the deponent, Auto Manf, and setting forth the matters on which the examination is requested. The organization must then designate one or more officers or other persons to testify as to the matters known or reasonably available to the corporation.
49
You have just received discovery requests which would require Client to produce sensitive info about Client’s trade secrets and about the financial value of the company. Client doesn’t want this information to get into the hands of 3P. what action, if any can you take to protect this sensitive info?
Seek a protective order requesting the court to prohibit discovery or order that discovery be had on specified terms and conditions. Trade secrets and sensitive financial information are proper subjects for such an order.
50
Identify the three different kinds of exceptions and explain the general purpose or function of each kind.
1. declinatory exceptions are used by the exceptor to decline jurisdiction of the court
2. dilatory exceptions are interposed to delay the progress of the action due to objections to the form of the proceeding or for more information
3. peremptory exceptions are used to defeat or dismiss the action
51
Jeweler has stopped payment on a check it owes to Radio Station. Jeweler has two truckloads of merchandise parked at convention center, but will be leaving with the merchandise in three days to go back to Houston TX. What action should you take to protect Radio Stations’ interests?
Radio Station may file a petition for a writ of attachment to have the inventory seized. Such attachment can be based on the fact that Jeweler is a non-resident with no duly appointed agent for SOP. In this case, the court may exercise quasi in rem jurisdiction over Jeweler by attaching his property (inventory in these facts) in LA. However, the j’ment can only be executed a/g the attached property (so if money owed is more than value of property may not be able to get all money back)
52
Π is a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. Case was tried to a jury, which returned a verdict in favor of Π in the amt of 250K and a/g driver of the other vehicle
You represent Π and your only objection to the verdict is that it is woefully inadequate given the serious injuries suffered by Π. What action can you take to obtain, in the trial court, an increase in the jury award?
Π may 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 alone
53
Π is a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. Case was tried to a jury, which returned a verdict in favor of Π in the amt of 250K and a/g driver of the other vehicle
If judge decided to increase the jury award, what are the procedures that Judge must utilize in order to grant the increase? What is the legal name given to such an increase?
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.
54
Π is a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. Case was tried to a jury, which returned a verdict in favor of Π in the amt of 250K and a/g driver of the other vehicle
You represent driver and are of the opinion that the evidence was completely insufficient to support the jury’s verdict on liability and was contrary to law. You are, however, happy with the jury’s damage award. What are your options for post j’ment relief in the trial ct?
Π may file a contradictory motion for a j’ment notwithstanding the verdict (JNOV) or in the alternative, a motion for 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.
55
Π is a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. Case was tried to a jury, which returned a verdict in favor of Π in the amt of 250K and a/g driver of the other vehicle
What re the time delays for filing the JNOV or motion for a new trial?
The JNOV/New Trial Motion must be filed within 7 days a/f the signing of j’ment or mailing of service of notice of signing the j’ment
56
Π is a guest passenger who was injured when the vehicle in which she was riding collided with another vehicle at an intersection. Case was tried to a jury, which returned a verdict in favor of Π in the amt of 250K and a/g driver of the other vehicle
What are the standards that Judge should use in analyzing the jury’s verdict in order to determine the availability of the options asserted by Driver’s counsel (JNOV and motion for new trial)?
The standards for deciding a JNOV motion and a new trial motion are similar but distinctive.
1. 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.
2. 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.”
57
A petition for executory process may be filed either ____________ or __________
In the parish where the property is situated or the parish of debtor’s domicile
58
When would a client have the right to utilize the executory process to seize and sell the property?
The prerequisites to use executory process are that:
1. the mortgage contain a confession of j’ment; and
2. mtg is executed by authentic act
and upon default by the debtor, permit rapid foreclosure and sale of the mortgaged property, without obtaining a personal j’ment a/g the debtor
59
Property has been seized under executory process. Debtor has proof that he made all the payments timely. What can debtor do to arrest the seizure and sale of the property without posting security?
Debtor may file a petition for injunction to arrest the seizure and sale on the grounds that the debt secured has been extinguished.
No security is required for a preliminary injunction issued on this basis.
The petition for an injunction must be filed in the court where the executory proceeding is pending, either in the executory proceeding itself or in a separate proceeding
60
What must you do to insure the company’s ability to obtain a deficiency j’ment and when must it be done?
Company may obtain a deficiency j’ment a/g debtor only if the property was sold under executory process after appraisal.
To obtain a deficiency j’ment , company can either convert the executory proceeding into an ordinary proceeding or file a separate suit
In either case, debtor must be cited and all delays and formalities of ordinary proceedings must be observed
61
Π’s counsel, on his voir dire exam elicits a response from prospective juror that she had similar problems to the ones asserted by Π in his demand and that she was able to obtain a verdict in her action a/g defendant
Defendant’s counsel believes that his case has been sorely prejudiced by this disclosure. What, if anything can he do to protect def’s interest, and is there anything judge can do, without request of either party to ameliorate the harm caused by prospective juror?
1. Use a challenge for cause to strike Prospective Juror
a. a juror may be striken for cause when, inter alia, the juror has formed an opinion or is otherwise not impartial. Here, clearly prospective juror has formed a prejudicial opinion.
2. defendant counsel should also request the judge to issue a curative instruction to the other prospective judges to disregard prospective juror’s comments
a. if the judge seeks to rehabilitate prosp juror and concludes that she has been rehabilitated, then defendant’s counsel should use one of its peremptory challenges to strike prospective juror
62
Pursuant to a written K, roofer was replacing homeowners roof. Bystander was injured by falling shingles and sued roofer and homeowner. During course of discovery, discovered that roofer was an independent contractor. The K for the work included a clause specifying that roofer was an independent contractor and his depo disclosed that he had no control or ability to direct the roofer or roofer’s EE’s.
What can homeowner’s counsel file to try to terminate the litigation prior to trial
1. HO counsel should file a motion for summary j’ment asserting that there is no genuine issue of material fact as to HO’s liability and that he is entitled to j’ment as a matter of law since the undisputed facts are that HO is not vicariously liable for the tortuous conduct of roofer, as evidence by the testimony of both roofer and HO, as well as the K itself specifying that roofer was an independent contractor
2. since bystander has the BOP at least to establish vicarious liability, HO’s burden on the motion doesn’t require him to negate all essential elements of bystanders claim, but rather to point out that there is an absence of factual support for one or more elements essential to bystanders claim
3. if bystander fails to produce factual support to establish such a relationship sufficient to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and HO’s motion will be granted.
63
Pursuant to a written K, roofer was replacing homeowners roof. Bystander was injured by falling shingles and sued roofer and homeowner. During course of discovery, discovered that roofer was an independent contractor. The K for the work included a clause specifying that roofer was an independent contractor and his depo disclosed that he had no control or ability to direct the roofer or roofer’s EE’s.
Explain what evidence HO counsel may submit to support her effort to terminate the litigation.
1. HO’s counsel will support the SJ with affidavits from
a. Competent affiants,
b. On personal knowledge and
c. Containing facts admissible at trial
2. certainly the K specifying the relationship b/w HO and roofer would be admissalbe evidence and can be appended to the affidavit of HO, who signed it
3. in addition the depo testimony of HO attesting to the lack of control over roofer or his EE’s as well as roofer’s depo testimony showing that roofer was an indep contractor can be submitted via affidavits of either HO counsel or deponents
64
At client’s deposition, cousel for opposing party has directed a line of questions which seeks to elicit information protected by the atty client privilege. Despite your repeated direction not to answer and before you can stop her,client finally succumbs and answers one of the improper questions. You are afraid that if this oppression continues that client will waive her atty client privilege. Specify all steps to extricate client from counsel’s present questioning and to ensure that she will not have to respond to this line of questioning in the future?
You may make a motion to terminate the deposition upon a showing that it is being conducted in such a manner as unreasonably annoying, embarrassing or oppressing your client. The court may order counsel for opposing party to cease forthwith from taking the deposition or may limit the scope and manner of taking the depo, pursuant to a protective order. The protective order, could, among other things prohibit counsel for opposing party from inquiring into any privileged matters.
65
If three different plaintiffs trying to combine their actions of wrongful discharge, slip and fall and false imprisonment, you can file a dilatory exception of improper cumulation of actions.
Joining two or more parties in the same suit either as plaintiffs or as defendants requires:
1. a community of interest b/w the joined parties;
2. proper jurisdiction and venue over each of the cumulated actions; and
3. all of the cumulated actions are mutually consistent and employ the same form of procedure
66
Foreign corp sued atty for services rendered in preparation of a legal memo. Atty has contacted sec of state and has learned that foreign corp is transacting biz in the state without authority to do so and without having paid taxes and licenses due to the state. Atty wants to obtain dismissal of the suit – what objection to raise?
The dilatory exception of lack of procedural capacity. A foreign corporation doing biz in the state, but not licensed may not sue in state court on intrastate transactions, which presumably this was.
67
You have properly served a subpoena duces tecum upon a 3P requesting documents which you know to be in its possession. 3P has failed to attend the depo at the time set forth in the subpoena and has failed to provide you with the requested records. What can you do to obtain the records?
File a motion for contempt.
I would request that the witness be adjudged in contempt of the court which issued the subpoena and be ordered to produce the records forthwith. Unless the 3P has a reasonable excuse the ct may order the witness to be attached and brought to court immediately or on a designated day with the requested docs
68
How many jurors must concur to render a verdict when the trial is by:
1. six jurors
2. twelve jurors
6 jurors = 5 jurors
| 12 jurors = 9 jurors
69
How many peremptory challenges are permitted by each side if trial is by:
1. a jury of 6
2. a jury of 12
Jury of 6 = 3 and up to 2 additional challenges if there is more than one party on any side
Jury of 12 = 6 and up to 4 additional challenges if there is more than one party on any side
70
Jury has been accepted and sworn. A/f that Opponent seeks to use her last peremptory challenge to eliminate juror # 6. she claims that juror smiled at your client immediately before the swearing in. what is your response to this challenge?
Peremptory challenges can’t be made a/f a jury has been accepted and sworn, as is the case here.
Juror 6 however, can be challenged for cause up to the time evidence is taken. Here the smile is arguably indicative of bias towards a party. Lack of impartiality is a recognized ground for striking a juror for cause.
71
You have been contacted by atty from Atlanta GA. He asks you to execute a money j’ment he has obtained in GA state ct. the j’ment is a/g warren silver, a LA citizen who owns substantial tracts of land in EBR. The j’ment is final and nonappealable
Describe the quickest method for executing this j’ment a/g silver’s property in EBR
Follow the procedure authorized by the Enforcement of Foreign J’ments Act. This requires that you:
1. annex an authenticated copy of the GA ct j’ment to an ex parte petition and
2. file an affidavit with the name and last known address of silver and the j’ment creditor
3. the clerk then sends notice by certified mail to silver
4. 30 days a/f mailing the notice you may execute the j’ment
72
You have been contacted by atty from Atlanta GA. He asks you to execute a money j’ment he has obtained in GA state ct. the j’ment is a/g warren silver, a LA citizen who owns substantial tracts of land in EBR. The j’ment is final and nonappealable
Is there an alternative method (besides following the procedure of the Enforcement of Foreign J’ments Act) for accomplishing the execution of the GA j’ment a/g silver’s property?
The alternative method for executing this j’ment is to file an ordinary proceeding a/g the j’ment debtor in EBR parish to have the GA j’ment recognized and made the j’ment of the LA ct. you must annex a duly authenticated copy of the GA j’ment to the petition.
73
Opponent has just filed a suspensive appeal in an action wherein client has been awarded 800K money j’ment. Opponent intends to secure the j’ment thru the use of a surety bond.
What is the maximum amt. that the trial ct may fix as security and how is that amt determined?
1,200,000 (150% of the j’ment)
74
Opponent has just filed a suspensive appeal in an action wherein client has been awarded 800K money j’ment. Opponent intends to secure the j’ment thru the use of a surety bond.
The surety bond has been posted. Client believes that surety is not worth the amt for which he has bound himself in assets subject to execution, over and above all his other obligations. She wants you to test his solvency. What procedure must you use to test solvency? What must you pray for and where must proceeding be brought?
Rule surety into trial ct where the proceeding was brought to show cause why the bond should not be decreed insufficient and why the opponent’s suspensive appeal should not be dismissed. Venue is proper in the court where the bond was filed.
75
Opponent has just filed a suspensive appeal in an action wherein client has been awarded 800K money j’ment. Opponent intends to secure the j’ment thru the use of a surety bond.
If the bond is held to be insufficient b/c of problems with the solvency of surety, may the suspensive appeal be dismissed?
No. A suspensive appeal can’t be dismissed on the ground that the bond furnished is insufficient unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond.
76
A default j’ment is a final j’ment that can be annulled if obtained by fraud or ill practices. Fraud or ill practices which justify annulment occur when the circumstances under which the j’ment was rendered indicate:
1. the deprivation of client’s legal rights, and
| 2. when the enforcement of the j’ment would be unconscionable and inequitable
77
Π filed suit to recover proceeds from a fire insurance policy issued by ins company. The answer filed by ins company contained a general denial which stated that the “fire and destruction of the residence and its contents were caused by the intentional act either directly or indirectly of Π” When ins comp attempted to introduce evidence of arson (which is a type of fraud) at the trial, Π objects.
What is the basis for Π’s objection?
Defendant is required to allege any affirmative defenses in its answer or risk waiving the defense.
Since ins co is alleging fraud, which also must be pleaded with particularity, ins co should have specifically designated fraud (based on arson) as an affirmative defense, rather than as part of a general denial.
If defendant fails to assert such an affirmative defense in his answer, he may be precluded from offering evidence at trial in support of the defense
78
Π filed suit to recover proceeds from a fire insurance policy issued by ins company. The answer filed by ins company contained a general denial which stated that the “fire and destruction of the residence and its contents were caused by the intentional act either directly or indirectly of Π” When ins comp attempted to introduce evidence of arson (which is a type of fraud) at the trial, Π objects.
Is there any motion that Ins Co may make in response to Π’s objection at trial which will permit the introduction of evidence on its defense of fraud?
Motion for leave to amend the answer to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings.
Alternatively, if evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation on the merits will be served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action on the merits
79
Π filed suit to recover proceeds from a fire insurance policy issued by ins company. The answer filed by ins company contained a general denial which stated that the “fire and destruction of the residence and its contents were caused by the intentional act either directly or indirectly of Π” When ins comp attempted to introduce evidence of arson (which is a type of fraud) at the trial, Π objects.
How should judge rule on Π’s objection and insurance co’s motion?
Jury trials are generally favored and any doubtful circumstances should be construed in favor of allowing a jury trial. In addition, the essence of the fraud defense was contained in the general denial, even though it wasn’t specifically labeled as an affirmative defense. As a result, Π had constructive notice of the defense and defendant’s probable use of arson evidence at trial. The failure to use specific terminology doesn’t prevent consideration of an affirmative defense, if under the circumstances, Π had fair and adequate notice of the defense. For these reasons, judge should probably overrule Π’s objection and grant ins co’s motion
80
Π was injured when an elevator located in the Jeff parish courthouse malfunctioned. Π sued jeff parish which answered and brought elevator company into the suit. Elevator co answered jeff parish’s petition and prayed for a trial by jury on all issues
Does elevator co have a right to a jury trial?
A jury trial is not available in a suit a/g a municipal body, such as jeff parish. The nature and amt of the principal demand determines whether any issue in the principal or incidental demand is triable by jury. Here since the principal demand is a/g a municipality for which a jury trial is not available, the incidental demand would not be triable by jury.
81
Π was injured when an elevator located in the Jeff parish courthouse malfunctioned. Π sued jeff parish which answered and brought elevator company into the suit. Elevator co answered jeff parish’s petition and prayed for a trial by jury on all issues
No jury trial granted b/c suit a/g a municipal body
Would your analysis differ if Π had joined both jeff parish and elevator company as defendants in her initial petition?
Yes. Elevator co would be entitled to a trial by jury and the action a/g it would be bifurcated with the non-jury trial required a/g Jefferson Parish
82
When a party dies during the pendency of an action, his legal successor may be substituted for the deceased party on _____________
Ex-parte motion “supported by proof of his quality.”
Spouses and children are the first category of survivors who may be substituted to pursue deceased’s claims.
83
Landlord has followed the proper process and has instituted the proper proceedings to evict tenant. Tenant has been properly served. She doesn’t file answer but does appear at trial, with counsel and vigorously defends the action. Ct renders j’ment in landlord’s favor. Three days following rendition of that j’ment tenant files suspensive appeal, posting the appropriate appeal bond. What action should landlord take?
Move to dismiss the suspensive appeal since it was not filed and bond not posted within 24 hours a/f the j’ment of eviction was rendered. The trial ct may properly enter a j’ment of eviction if it finds landlord is entitled to relief or if the lessee fails to answer or appear at trial. Here, even though lessee appeared, the ct still has discretion to rule for landlord.
84
What action can you take to force the sale of property?
A buyer may file a writ of distringas when a j’ment orders a defendant to do an act, other than delivery of a thing, and he refuses to comply with the order.
Buyer may, by contradictory motion obtain the following remedies:
1. a writ to distrain the property of seller
2. an order adjudicating seller in contempt; or
3. a j’ment for any damages buyer may have sustained
buyer may likewise sue for damages in a separate action. Buyer can also seek specific performance directing the sheriff or other person appointed by ct to execute documents with the same effect as if done by the seller
85
Instead of presenting witness’ testimony live at trial, Π wants to read the depo testimony of witness into the record at the trial – witness lives 200 miles from courthouse– can he do this?
Yes. The depo of a witness may be used in any way at trial, if inter aliai, the witness resides more than 100 miles from the courthouse.
86
You pled the dilatory exception of prematurity in your answer. Trial is drawing near and the exception has not yet been heard. Can exception be tried and decided at trial of the case?
No. when dilatory exceptions are pled with the answer, they must be tried and decided in advance of the trial of the case.
87
How do you serve an unincorporated association that has no agent for service of process?
Personally serve a managing official at any place where the association regularly conducts biz; if none, personally serve any member of the association.
88
Your client is a Π in a suit on an open acct. a trial date has not been set. You have just received from counsel for def. a proposal for settling the claims b/w the parties. The writing states that it is being submitted pursuant to a specific provision of the CCP and specifies that the amt of the proposal is exclusive of costs, interest, atty’s fees and any other amt which may be awarded pursuant to statute or rule.
What is the legal term utilized to describe this proposal?
An offer of judgment
89
Your client is a Π in a suit on an open acct. a trial date has not been set. You have just received from counsel for def. a proposal for settling the claims b/w the parties. The writing states that it is being submitted pursuant to a specific provision of the CCP and specifies that the amt of the proposal is exclusive of costs, interest, atty’s fees and any other amt which may be awarded pursuant to statute or rule.
What is the procedure for accepting this proposal? For rejecting this proposal?
If Π wishes to accept the offer, he should do so within 10 days a/f service of the offer by providing written notice that the offer is accepted. Once done, either party can move for a j’ment on the offer and the court shall grant such j’ment.
To reject the proposal, Π may simply not respond within 10 days of service, a/f which the offer will be deemed withdrawn and evidence of the offer of j’ment will not be admissible, except in a proceeding to determine costs.
90
Your client is a Π in a suit on an open acct. a trial date has not been set. You have just received from counsel for def. a proposal for settling the claims b/w the parties. The writing states that it is being submitted pursuant to a specific provision of the CCP and specifies that the amt of the proposal is exclusive of costs, interest, atty’s fees and any other amt which may be awarded pursuant to statute or rule.
Please briefly explain to your client what the effect that a rejection of the proposal might have upon the eventual recovery of the parties.
If the final j’ment obtained by Π is at least 25% less than the amt of the offer of j’ment made by defendant, Π must pay defendant’s costs, exclusive of atty’s fees, incurred a/f the offer was made, as fixed by the ct.
91
∏ has filed a lawsuit a/g construction co alleging that pile driving on neighbor’s land has caused extensive damage to ∏’s house. Construction co’s lawyer has requested permission to have an expert physically go onto ∏’s property to conduct an inspection to determine the nature and extent of any damage. ∏’s lawyer has refused. What can construction company’s lawyer do to obtain entry upon the land for the expert?
Construction Co. can file a request for production and entry upon land which would permit them to enter upon ∏’s land and inspect the nature and extent of any damage. ∏ has 15 days from service of process to request to either permit the inspection or object to it.
92
∏ has filed a lawsuit a/g construction co alleging that pile driving on neighbor’s land has caused extensive damage to ∏’s house. Construction co’s lawyer has requested permission to have an expert physically go onto ∏’s property to conduct an inspection to determine the nature and extent of any damage. ∏’s lawyer has refused. What can construction company’s lawyer do to obtain entry upon the land for the expert? File a request for production and entry upon land.
What information, regarding the inspection must Construction Co specify on the request for production and entry upon land?
The request must set forth the premises to be inspected and specify a reasonable time, place and manner of making the inspection and performing the related acts.
93
You are seeking to probate the last will and testament of your client’s father. Client’s sister is opposing the probate. Client has videotape of his late father executing the will in question. You review the video and determine that it shows approx the last half of the meeting b/w your client’s father and the father’s lawyer at which the will was signed. While your father appears to be mentally sound in the video, the video doesn’t depict the testator’s oath being given to your clients father. Is the videotape admissible as evidence at the trial to probate the testament?
No. Videotape of the execution of a testament by the testator is admissible as evidence of, inter alia, the mental capacity of the testator provided the testator’s sworn oath is recorded on the videotape. Since the videotape doesn’t show the client’s father being given the oath, it is inadmissible
94
What pleading needs to be filed in order to challenge the validity of the service of process? When must that pleading be filed?
A declinatory exception of service of process. It must be raised prior to or in the answer or prior to confirmation of a default judgment, and not later than any other declinatory or dilatory exceptions.
95
Aunt has just come into your office informing you that her brother has just died leaving an authentic act which provides that she be given custody of his minor children. She wants you to institute a proper proceeding to accomplish his desire. What pleadings must you file in order to satisfy her request? What doc’s if any, must be annexed to your pleadings?
Petition for appointment of tutorship by will since Aunt was nominated in authentic act. The petition should have annexed to it a copy of the authentic act evidencing the appointment and oath. Aunt will be required to furnish security in an amt equal to the total value of the minor’s property as set forth in an inventory or sworn descriptive list.
96
∏ has completed the presentation of his case in an action tried by the ct. you believe that, upon the facts and law, the ∏ has shown no right to relief from Δ and you desire to have ∏’s case dismissed without your putting on any evidence is there anything that can be done to terminate the trial at this point? If the attempt to terminate the trial is unsuccessful, what impact, if any, does the failure have on your right to offer evidence?
Δ may move for an involuntary dismissal a/f the close of the ∏’s case on the ground that upon the facts and law, ∏ has shown no right to relief. Such a motion would not impede Δ’s ability to offer evidence if the motion is denied.
97
Amanda is a 23 yrs old who suffers from Tourette’s syndrome, OCD, and autism. She is completely incapable of managing her own affairs. Her father has died and she is the beneficiary of an insurance policy on his life. Susan, her mother, wants to take the steps necessary for her to gain control over her daughters financial affairs and for her being authorized to manage them. What must you do to satisfy Susan’s orders?
File a petition for interdiction and appointment of the mother as curator to manage her daughter’s affairs.
98
J’ment was entered a/g your client 4 months ago. He was never served w/citation or with the petition. A default j’ment was obtained a/g him; he didn’t and has not to this day received from the clerk of ct notice of the signing of the default j’ment. You check the ct record and it shows that domiciliary service was made on your client and that no general appearance by your client was entered and that no notice of the signing of the default j’ment was mailed to your client. The delays for appealing the default j’ment have long run. What, if anything, can you do to obtain relief from this j’ment for your client? Briefly explain why your client is entitled to the relief you seek.
Since proper domiciliary service appears to have been made, the fact that client was not personally served with citation or the petition doesn’t render the service improper. However, since domiciliary service was used, client must be served with notice of default j’ment. Since the delay for appealing the j’ment is triggered by service of the notice of default j’ment, client can take an appeal. Client can also petition for annulment of the j’ment based on vices of form. Client might argue that failure to serve the notice renders the j’ment invalid, or alternatively that he was not served with process as required by law.
99
P and J own a small tract of land in Sulphur, in Calcisieu parish, in indivision. Lately, the brothers have had numerous differences of opinion regarding the mgt of this property. They want to end their joint ownership of the property, but the brothers simply can’t agree on a method for accomplishing that result. Pascal comes to you for advice and asks you to explain to him the options that are available for ending the indivision ownership of the tract of land. Please explain to Pascal the manner in which the joint ownership of the land will be terminated.
P may bring an action for partition in Calciseau parish where the property is located. The partition may be in kind, if the property is divisible or by licitation, if it can’t be divided. If the partition is by licitation, the property will be sold at public auction a/f advertisement required for judicial sales is under execution. All counsel of record, curators representing absentee defendants and persons appearing in proper person shall be given notice of the sale date. At any time prior to the sale, the parties may agree upon a non-judicial partition.
100
A dies without a will. His sole heirs are his two children, his wife, his brother and his sister. He died leaving no immovable property and leaving property having a gross value of 47K. Mr. Borello owned, at the time of his death, 500 shares of Employer’s Corporation which says that it can’t transfer the stock to his heirs without some sort of “legal paper.” Describe the steps you would take to obtain the legal paper needed to bring about the transfer of the stock to the heirs. Please specify the “legal paper” that needs to be obtained.
This is a small succession b/c value is less than 50K. Not necessary to judicially open. Rather, the competent major heirs of A, and his surviving spouse may submit to the inheritance tax collector one or more multiple originals of their affidavit setting forth:
1. the date of the death of the deceased and his domiciled at the time thereof;
2. the fact that the deceased died intestate and left no immovable property;
3. the marital status of the deceased, and the names and addresses of the surviving souse and the heirs and their relationship to the deceased; and
4. a brief description of the movable property left by the deceased, the value of each item and aggregate value of all such property at the time of death of deceased.
If no inheritance taxes are due, the tax collector will so certify by endorsement on the multiple originals of the affidavits provided by and to be returned to the heirs and surviving spouse. This will be sufficient to transfer the stock.
101
A lawsuit was filed seeking damages for physical injuries exceeding 60K by ∏ a/g manf co in 1996. manf co timely filed answer. In 1997, ∏ amended petition to add mechanical co. an answer was filed by mechanical co. until this point, no party had made a request for jury trial. 9 days a/f service of mechanical co’s answer, manf co filed a request for trial by jury. Was manf co’s request timely filed?
Yes. A party may request a jury trial within 10 days of service of the last pleading directed to any issue triable by jury. Since an answer is a pleading that contains such issues, manf co’s request was timely filed even though the answer was filed by a co-Δ
102
You represent Governor of state who has been sued in mandamus in EBR parish to compel him to cancel leases covering water bottoms located in Bossier Parish. Coupled with the mandamus proceeding is a declaratory j’ment action a/g Landowner, a resident of Bossier parish, to have the leases declared a nullity. The governor wants you to have the action a/g him dismissed as quickly as possible.
What objections can you raise to the action a/g the governor and how must the objection be raised?
1. one exception would be a dilatory exception of unauthorized use of a summary proceeding. Use of a mandamus action, which is a summary proceeding is appropriate to compel performance of the ministerial duties of a public officer, not discretionary actions, such as cancellation of water bottom leases.
2. another objection would be the dilatory exception of improper cumulation of actions, since mandamus, as a summary proceeding, employs a different form of procedure than a declaratory j’ment, which is an ordinary action. Actions that employ different forms of procedure may not be cumulated.
103
You represent Governor of state who has been sued in mandamus in EBR parish to compel him to cancel leases covering water bottoms located in Bossier Parish. Coupled with the mandamus proceeding is a declaratory j’ment action a/g Landowner, a resident of Bossier parish, to have the leases declared a nullity. The governor wants you to have the action a/g him dismissed as quickly as possible.
Will the objections that you raise on behalf of the governor result in the dismissal of the proceeding against him?
Yes. While most dilatory exceptions tend to only delay rather than dismiss the action, the effect of sustaining this exception would be to dismiss the mandamus action. ∏ will have to formulate another basis upon which to challenge the governor in an ordinary proceeding.
104
Paul dies leaving a valid statutory will that bequeaths the disposable portion of his estate in equal shares to his brother, his sister and two children. Paul’s children, C and M, will divide the forced portion of his estate, subject to a usufruct in favor of E, the mother and surviving spouse.
Describe the pleadings and other papers you would file, and any other steps to be taken, to probate the testament.
1. file petition for probate of the will in a court of competent jurisdiction
a. submit with the petition evidence of the death of the deceased and all other facts necessary to establish the J of the court
2. submit any document in petitioner’s possession which purports to be a testament of the deceased, even though petitioner may believe the document is not a valid testament or has doubts concerning its validity
3. a/f the testament has been produced, the ct shall order it to be presented for probate on a date and time assigned. The petitioner must produce all necessary witnesses at the time assigned for the probate hearing.
105
Paul dies leaving a valid statutory will that bequeaths the disposable portion of his estate in equal shares to his brother, his sister and two children. Paul’s children, C and M, will divide the forced portion of his estate, subject to a usufruct in favor of E, the mother and surviving spouse.
Assume that all legatees, all residuary legatees and the surviving spouse are competent and that the residuary legatees accept the succession unconditionally. Further, assume that none of the creditors of the succession has demanded administration. Describe how the legatees may be sent into possession w/out administration of the succession?
When the testament has been probated, under these circumstances, the court may send the legatees into possession without an administration of the succession on their ex parte petition, when all the legatees are either competent or acting through their qualified legal rep. the person named as executor in the testament shall join in the petition, and the allegations of the petition shall be verified by affidavit of at least one of the petitioners.
106
You are defending a commercial K dispute that has been set for trial in two weeks. ∏’s counsel has filed a motion for continuance, contending that a material witness who previously has not been deposed has disappeared and can’t be located. ∏ seeks a continuation of the trail so that further efforts may be made to locate this witness. Your client doesn’t believe that he testimony of the missing witness will affect the trial outcome and would like to keep the current trial date in place. What can you do to maintain the current trial date for your client?
You can prevent a continuance on this ground by requiring ∏ to disclose under oath the expected testimony of the absent witness and if defendant admits the witness would so testify, the case will proceed to trial on the current trial date.
107
You represent a ∏ who has just prevailed in a suit for monetary damages. Although you reviewed the j’ment (which was prepared by Δ’s counsel) prior to submitting that j’ment to the court, upon receiving a copy of the j’ment signed by the Judge you suddenly realize that it contains a mathematical addition error which inadvertently reduced the value of the j’ment by several thousand dollars. What can you do about this?
File a motion to amend the j’ment which can be amended by the trial court at any time to correct errors of calculation, which is what occurred here.
108
On behalf of Buyer, you have secured a j’ment specifically enforcing a K to sell immovable property and directing seller to execute the instruments necessary to complete the sale. Seller refuses to execute the instruments. What action, if any can you take in order to force the sale of the property? Also state remedies.
Buyer may file a writ of distringas when a j’ment orders a Δ to do an act, other than the delivery of a thing, and he refuses to comply with the order. Buyer may, by contradictory motion obtain the following remedies:
1. a writ to distrain the property of Seller
2. an order adjudicating seller in contempt
3. or a j’ment for any damages Buyer may have sustained
Buyer may likewise sue for damages in a separate action. Buyer can also seek specific performance directing the sheriff or another person appointed by the court to execute the documents with the same effect as if done by the seller
109
You represent ∏ in a slip and fall lawsuit pending in state court. You learn that ∏ has died as a result of circumstances wholly unrelated to the lawsuit. What, if anything, must you do in order to move the litigation forward and what pleadings if any are you required to file to accomplish this?
Amend the petition to assert a survival action and file a motion to have ∏’s legal successor substituted to represent the interest of the deceased ∏. The motion may be filed ex parte. The death need not be related to the slip and fall suit for this to occur.
110
You are defending a personal injury action in which the ∏, an offshore worker sustained injury. ∏ has retained a vocational expert who will opine that the ∏ is no longer capable of engaging in his former work. You already have obtained an IME of the ∏ by physician retained on behalf of your client. However, you believe it would assist your clients position to have the ∏ examined also by a vocational rehabilitation expert. Is there any procedure by which you can accomplish this?
You may file a request for physical examination which allows you to compel the physical exam of any party when the physical or mental condition of the party is at issue, which is is here since ∏ is seeking personal injury damages. Such exams may be conducted by a vocational rehabilitation expert.
∏ would be entitled to the subsequent report if he requests it, which, if he does, would require him to turn over to the defendant the report prepared by ∏’s own vocational expert.
111
Client consults with you regarding her concerns over the actions of her brother, who has been appointed as tutor of the three minor children of the late sister of your client who died. Your client is concerned b/c she believes her brother recently has been spending more money than he otherwise could afford and your client fears that he may not be managing the assets of the minor children under his tutorship in a proper fashion. Does your client have standing to take any action?
Any interested party may file a motion to remove a tutor who has, inter alia, mismanaged the minor’s property. Client, as aunt of the minor children certainly has an interest in the management of her nephew’s property.
A tutor is a fiduciary who is required to manage the minor’s property with care, prudence, and diligence of a reasonably prudent person.
The motion will be served on the tutor who will be required to show cause why he shouldn’t be removed as tutor. His removal as tutor, however, will not invalidate any of his prior acts performed prior to his removal.
112
Briefly explain the general scope of discovery allowed by La CCP
Parties may obtain discovery re any matter not privileged which is relevant to the subject matter of the litigation. The information sought need not be admissible at trial if the information is reasonably calculated to lead to the discovery of admissible evidence.
113
Is a written document prepared in anticipation of litigation by a party subject to discovery by the opposing party, and if so, under what circumstances?
A written doc prepared in anticipation of litigation constitutes work product and, as such is discoverable only if the party seeking discovery can demonstrate that a denial of production will unfairly prejudice him in preparing his claim or defense or will cause him undue hardship or injustice
114
∏ takes depo of treating physician – tries to offer depo in lieu of his live testimony – how should judge rule?
Presumably, treating physican is being offered as an expert witness. If this is the case, ∏ may use his depo at trial a/f notice to defendant who has 10 days to object.
115
A party may discover facts known by an expert who has been retained or specially employed by another party in anticipation of litigation and preparation for trial and who is not expected to be called as a witness only if _______________________
Only if he is an examining physician OR upon a showing of exceptional circumstances
116
A continuance may be granted if there is __________
2. good ground therefore and
| 3. if a material witness has absented himself w/out the contrivance of the party seeking the continuance
117
A motion for j’ment on the pleadings may be used by any party a/f ___________
The answer has been filed
118
What pleadings would you file to place wife and daughter in possession of an estate whose value is less than 50K
1. file verified petition of possession along with an affidavit of death, domicile and heirship in parish where decedent was domiciled
a. petition must include allegations as to the competency of petitioners; date of death; jurisidictional basis; petitioners are sole heirs; and sucession is relatively free from debt
2. file an inventory or sworn descriptive list of the assets and liabilities and an inheritance tax return and pay any taxes due
3. since all heirs are competent and accept succession unconditionally and succession is relatively free from debt, wife and daughter shall be recognized and sent into possession without administration on their ex parte petition.
119
Down on his Luck comes to you with a tale of woe. He has performed a construction K according to K specifications but the owner of the building has refused to pay him. He wants you to file suit for him to obtain the payment owed to him. Unfortunately, he has absolutely no funds to pay the filing fees or other costs either in advance or as they accrue. You cannot and will not advance these fees for a client that you are meeting for the first time. Is there anything that you can do to permit Down to prosecute his action w/o paying the costs in advance or as they accrue? If so, what action can you take and what pleadings will you file?
You can file an in forma pauperis petition which, if granted, will permit the client to proceed w/o prepayment of costs due to his property. The request may be made by ex parte motion or in the first pleading, and it must be accompanied by affidavits of the client and a 3rd person, other than the atty, attesting to the client’s inability to prepay costs. The opposing party or the clerk of ct may traverse and challenge the request.
120
You propound a request for admission prior to trial that the π did not follow the instructions on the widget when using it at the time of the accident. The π does not answer your request. You take no further action, such as to compel any response. Can you take any action at trial that will benefit your client? Please explain.
You may introduce the request for admissions into evidence. Any requests which are not answered or objected to within 15 days of service of the requests are deemed admitted and conclusively established.
121
You have properly appealed an adverse judgment against your client. Your appellate brief is due in 10 days. While reviewing the trial transcript and the record in order to prepare your brief, you realize for the first time that the evidence and pleadings establish that the π’s claim was almost certainly prescribed. To your horror, you have failed to raise the prescription issue in the TC. What action, if any, can you take?
An exception of prescription may be pleaded at any stage of the proceeding, even for the first time on appeal, as long as the grounds for the exception appear in the record below. Since the grounds appear in the record, you may file the exception of prescription in the appeal.
122
The TC imposed a preliminary injunction in favor of π and against Δ requiring Δ to make payments under the terms of a K b/t the parties pending the outcome of litigation concerning the validity of Ks. Prior to imposing the preliminary injunction, the TC held a hearing in which the judge allowed the attys representing the parties to present args, but did not admit evidence.
According to the j’ment, the trial judge considered “the pleadings, the argument of counsel, and the law” in reaching his decision. You have been asked by Δ to appeal the j’ment imposing the preliminary injunction. Please explain in detail the arg that you intend to present to the appellate ct.
CCP Art. 3605 requires that an order granting a preliminary injunction must describe in reasonable detail, and not by mere reference to the pleadings, the acts sought to be restrained. The judgment at issue arguably lacks the specificity required by Art. 3605 and thus may be void and vacated by the Ct of Appeal. In addition, since this is a mandatory injunction requiring Δ to pay sums of money, the requirement that π may suffer irreparable injury unless an injunction issues may not have been met. Irreparable injury means a loss that cannot be adequately compensated in money damages.
123
π claims physical & psychological damages as a result of a car accident which occurred Oct. 25, 1995. π’s atty has sent him to a psychiatrist, who is prepared to testify that π is totally permanently disabled as the result of posttraumatic strees syndrome related to the accident. The psych report was furnished to the Δ, who deposed the Dr. Δ thereafter schedule an independent psych evaluation with a Ph.D. π refused to undergo the evaluation voluntarily. At Δ’s request, π had already submitted voluntarily to IMEs by an ortho surgeon and a neurosurgeon. He refuses to undergo any additional exams and specifically refuses to undergo a psych evaluation. Δ files a motion for an order to compel the exam or, in the alt., a motion to suppress the use of the psych as a witness.
Describe what args you would make as atty for π why ct should deny both motions.
Describe what args you’d make as atty for Δ why ct should grant both motions.
How would you as judge decide both motions
π - argue that the motions should be denied b/c under Art. 1464, ct may order a party whose mental condition is at issue to submit to a mental exam by a Dr, or a license clinical psychologist who is not a physician. Exam by a licensed clinical psych who is not a physician is permitted only if good cause is shown. The PhD. Is not, under the facts, a licensed clinical psych, and Δ hasn’t shown good cause since he has access to the psych support, has deposed the Dr., & has the option of independent psych exam by a physician.
Δ - argue that exam by a PhD. who isn’t a physician is implicitly embraced by the exception for licensed clinical psychological experts; that such an expert is qualified to evaluate the mental condition & mental injuries suffered by π; & that such an independent exam is essential in the interest of justice in that π’s psych report is not the independent exam to which Δ is entitled.
Judge – order π to submit to the mental exam, but require that it be conducted by a psych physician or licensed clinical psycho rather than the PhD., in accordance w/ the reqs of Art. 1464. As a result, Δ could address his own evid. to respond to π’s report π will be assured of exam by Dr. or lic. Psych
SP, resident of Natchitoches, has recently come to u w/ tale of deception.
124
SP makes stock trades thru BF, a national concern. SP has a contractual relationship w/ BF, having signed the K in Caddo. BF negotiates stock trades for its customers w/ stock wholesalers who buy stock from or sell stock to Firm’s customers. BF is paid a commission by its customers & receives & keeps “payments for order flow” from the stock wholesalers. SP believes that BF should have disclosed these payments to its customers & breached a contractual duty to them. SP is member of SBC, composed of over 50 members who are residents of Natchitoches, & is aware of 15 other clubs of similar size throughout the state. He wants u to bring 1 action that will vindicate the rights of all members of SBC & of the other such clubs in the state.
Is there 1 action that can be brought to vindicate the rights of all members of these clubs? If so, what is that action; what is its proper venue; & what are the reqs for its maintenance?
Yes. Members could bring a class action. The action may be brought in any parish which is the proper venue for BF or any parish which is the proper venue for any of the other 15 clubs joined in the suit. This would include any parish in which any Δ has n office, or any parish of their principal biz establishment. Another possible venue would be Caddo, the parish where SP signed the K with BF. Another, is Natch if this suit is brought under the long-arm stat., assuming BF has no Louisiana location.
The reqs for maintaining a class action are numerosity, questions of law & fact common to the class, the claims are typical of those of the class, πs will fairly & adequately protect the interests of the class, & there are ascertainable criteria for objectively defining the class.
125
Client owns a convenience store; he hands you a petition w/ which he has just been served. The petition combines separate actions by 3 different πs. The 1st action is brought by FE for wrongful discharge. The 2nd is a claim by C who slipped & fell on Client’s business premises. The 3rd is an action for false imprisonment by P who was detained for shoplifting. The venue for the action is proper. What, if anything, can you do to challenge the combo of these 3 actions in 1 petition?
Explain why you can or cannot challenge the combo.
File a dilatory exception of improper cumulation of actions. Joining 2 or more parties in the same suit either as πs or as Δs requires:
1. A community of interest b/t the joined parties;
2. Proper jurisdiction & venue over each of the cumulated actions; &
3. All the cumulated actions are mutually consistent & employee the same form of procedure.
In this case, while venue & jurisdiction appear to be proper, there is no community of interest b/t these πs. Namely, the factual basis & legal issues b/t each of their claims are entirely different. There is no factual connexity b/t these claims, as they appear to arise out of separate, independent facts. Moreover, the legal issues involved in wrongful discharge, negligence & false imprisonment claims brought by 3 different π are entirely unrelated.
126
You have taken steps to challenge the combo & Judge has agree w/ you args. What remedy may Judge now award you?
Since venue & jurisdiction are proper, the only available options are to order separate trials of each action or order the πs to elect which action to proceed w/ & delete the others. Since there are several πs with separate, distinct causes of action, the former option appears to be the only viable one under the circumstances.
127
Foreign Corp. has now complied w/ all state laws for doing business in LA & has paid all taxes & licenses due the state. Even though the suit has been dismissed, by Foreign Corp. bring the suit against after discharging its obligations to the state?
Yes. When the grounds of the dilatory exception of lack of procedural capacity may be removed by action of the π, the judgment sustaining the exception shall order π to remove them w/in the delay allowed by the ct; and the suit shall be dismissed only for a noncompliance with this order. Here, since the suit was already dismissed, it would be w/o prejudice, allowing Foreign Corp. to refile once it regained good standing by paying taxes & licenses, and thus removing the ground of the dilatory exception.
128
π has sued Manf & Distrib of a defective chair. You represent Distrib which has an agreement wherein Manf agrees to indemnify Distrib for any losses it might experience as a result of any lawsuit involving the chair. What step(s), if any, can you take at this point to obtain the remedies provided by the indemnification agreement for your client?
File a petition for a cross-claim against Manf, a co-party, requesting Manf to indemnify Distrib for any damages against Distrib in the original action. The cross claim should be allowed since it arises out of the same transaction or occurrence – the sale of the defective chair – which is the subject matter of the original action.
129
You represent Δ in a personal injury action in which the issues of liability & damages have been properly bifurcated for separate trials before different juries. The Phase I Judgment on the issue of liability is adverse to Δ. You wish to file an immediate suspensive appeal before proceeding to the Phase II trial on damages. Can you file an immediately suspensive appeal?
Yes. A suspensive appeal may be taken from the final judgment. A final judgment may be rendered even though it may not adjudicate all the issues when, as here, the ct, inter alia, signs a judgment on the issue of liability when that issue has been tried separately before a jury & the issue of damages is to be tried before a different. Jury.
130
You wish to depose Counsel of Record for Δ in order to uncover evidence concerning the intent of the parties to the K that was drafted by Counsel of Record & which forms the basis for the lawsuit. Can you depose Counsel of Record? If so, what must you do in order to obtain his depo?
Probably not, since such testimony would likely disclose privileged atty-client communications b/t counsel of record & Δ. No atty of record representing the π or the Δ may be deposed, except under extraordinary circumstances, & then only by order of the district ct after contradictory hearing.
131
Trial Judge has completed her questioning of the jury. π’s Counsel requests permission to examine the jury. Trial Judge refuses the requested voir dire. Does π’s Counsel have the right to question the jury? If so, what, if anything must he do to preserve his right?
Yes. Parties or their attys have a right to examine prospective jurors. While the ct may control the scope of the exam to prevent unfair or prejudicial questioning, Trial Judge here has clearly abused that discretion by prohibiting any voir dire by π’s Counsel. π’s Counsel should request a continuance & leave to immediately file supervisory writs. Another option would be for π’s Counsel to note his objections on the record & proceed w/ the trial. If the result if unfavorable, the objection may then serve as alleged error on appeal.
132
At the close of evidence, the jury retires to deliberate. After an hour or so, Jury Foreman sends a note to Trial Judge stating that the jury would like to hear the testimony of Expert Physician again, and would also like to review all of the medical records that have been put into evidence. When informed of these requests, Defense Counsel objects. How should Trial Judge rule on Defense Counsel’s objection & what should she do in response to the jury’s requests?
With respect to medical records, the ct may, after giving notice to the parties, allow the jury to examine them in the courtroom or he may allow the jury to take the records to the jury room. Regarding Expert Physician’s testimony, the jurors should be conducted to the courtroom where the testimony will be read to them, if the judge permits. Both requests are within Trial Judge’s discretion, and under these circumstances, should probably be permitted unless it would unduly burden the ct or delay the proceedings.
133
You have contacted Sec. of State to determine who the agent for service of process is for NIA. You have been informed that this unincorporated association has no such agent on file with the Secretary. How do you go about making service upon this unincorporated association given the fact that it has no agent for service of process?
Personally serve a managing official at any place where the association regularly conducts business; if none, personally serve any member of the association.
134
C filed a motion for summary j’ment, in the form of a rule to show cause, seeking a money j’ment against D & recognition of its mortgage. Notice of the filing of this motion, together with a copy thereof, was mailed to D. Clerk of Ct mailed notice of the hearing date to D’s Counsel. Neither D nor her counsel appeared at the hearing. Summary j’ment was granted in favor of C. D’s Counsel has just received notice of the signing of the j’ment. What, if anything, can D’s Counsel do, at this point, in the Trial Ct, to attack the j’ment’s legality? What are the grounds for such relief?
A summary j’ment motion is a pleading which requires an appearance & thus requires personal service by the sheriff on D or his atty of record. D may seek to annul the j’mnet for vices of form on the grounds that D was not properly served with the summary j’ment motion. Annulment for vices of form may be brought at any time and may be asserted collaterally on appeal.
135
State Agency institute suit for the expropriation of a strip of land. 2 appraisers were hired by Agency to determine the amt of just compensation due for the property expropriated. Agency rejected Appraisers reports b/c they were too high & employed 2 additional appraisers. The Agency used the highest of the 2nd appraisals as the measure of just compensation & intends not to call Appraisers as witness at trial.
Can Landowners depose Appraisers, retained by Agency but whom the Agency doesn’t intend to call as witnesses, on their opinions and/or the facts on which those opinions are based?
Landowners may not depose Appraisers. Since appraisers are experts not expected to be called as witnesses, but who were retained in anticipation of litigation or for trial preparation, facts or opinions known by these experts can be discovered only in exceptional circumstances under which it is impracticable to obtain facts on the same subject by other means. Here, Landowners probably cannot show exceptional circumstances since they may obtain the same info (i.e. facts underlying the appraisal) by having their own appraisers prepare appraisals of the property.
136
State Agency institute suit for the expropriation of a strip of land. 2 appraisers were hired by Agency to determine the amt of just compensation due for the property expropriated. Agency rejected Appraisers reports b/c they were too high & employed 2 additional appraisers. The Agency used the highest of the 2nd appraisals as the measure of just compensation & intends not to call Appraisers as witness at trial.
Can Landowners require production of documents reflecting Appraisers’ opinions or the facts upon which their opinions are based?
No. Appraisers’ reports constitute atty work product prepared in anticipation of litigation or in preparation for trial of the expropriation suit by State Agency. The ct shall not order the production or inspection of any writing prepared by the adverse party or its agents in anticipation of litigation or in preparation of trial unless denial will unfairly prejudice, or cause undue hardship to, Landowners. Here, no such prejudice exists to overcome the qualified work product privilege since Landowners can obtain their own appraisals of the land at issue.
137
State Agency institute suit for the expropriation of a strip of land. 2 appraisers were hired by Agency to determine the amt of just compensation due for the property expropriated. Agency rejected Appraisers reports b/c they were too high & employed 2 additional appraisers. The Agency used the highest of the 2nd appraisals as the measure of just compensation & intends not to call Appraisers as witness at trial.
Can Landowners call Appraisers as their own witness at trial?
Yes. The prohibition against discovery of the written opinions of an opposing party’s experts does not create a privilege preventing one party from calling another party’s expert at trial as a witness. DOTD v. Stumpf.
138
You represent OKC, who has been properly served with a petition filed by his sister, QL, in city ct in Alexandria. QL seeks to partition 3 tracts of land owned in indivision by OKC and QL and situated in City of Alexandria. The land has a total value of $7,500. OKC wants you to have this matter dismissed so that he can try to amicably resolve the differences with his sister. What action, if any, can you take to get this matter dismissed?
File a declinatory exception of lack of subject matter jurisdiction since city cts have no jurisdiction over partition proceedings.
139
You represent FC. FC representatives bring you a promissory note which has been paraphed for identification w/ an act of chattel mort, which the company owns & holds, on a 1995 Dodge car. The chattel mort contains a provision which imports a confession of j’ment; the chattel mort, in addition in containing the sig of the debtor, has been signed by a notary & 2 witnesses. You are advised that Debtor (the maker of this note) is in default & that you are to collect the balance due on the note. The Co reps want you to seize the car & have it sold thru the quickest means possible.
What type of proceeding would you file to accomplish the quickest seizure & sale of the car possible & where could this proceeding be filed?
A petition for executory process may be filed either in the parish where the property is situated or in the parish of Debtor’s domicile.
140
You represent FC. FC representatives bring you a promissory note which has been paraphed for identification w/ an act of chattel mort, which the company owns & holds, on a 1995 Dodge car. The chattel mort contains a provision which imports a confession of j’ment; the chattel mort, in addition in containing the sig of the debtor, has been signed by a notary & 2 witnesses. You are advised that Debtor (the maker of this note) is in default & that you are to collect the balance due on the note. The Co reps want you to seize the car & have it sold thru the quickest means possible.
Explain why your client has the right to utilize the proceeding that you chose to seize & sell the car
The chattel mort contains a confession of j’ment & is executed by authentic act. These are pre-reqs to use executory process which, upon default by the debtor, permits rapid foreclosure & sale of the mortgaged property, w/o obtaining a personal j’ment against the debtor.
141
Local Bank holds a mort on property in Bossier Parish, which mort, evidenced by an authentic act, contains a confession of j’ment. The mort is security for the payment of a promissory note signed by BG in the amt of $100,000, payable to the order of Local Bank, & paraphed for identification w/ the aforesaid act of mort. BG is in default of the promissory note & has left the state. His whereabouts are unknown; his last known address, however, was in Oklahoma. Bank wants you to enforce its mort via ordinaria.
Please state what must be done to enforce the mort via ordinaria against the non-resident.
File an ordinary action against BG in a ct of proper jurisdiction & venue. There are several bases for jurisdiction. 1st, long-arm jurisdiction applies b/c he signed the contractual instruments in LA or b/c BG has an interest in immovable property located in LA, & the cause of action arises out of each of these activities. Therefore, there is specific jurisdiction. A LA ct could also attach the immovable prop & assert quasi in rem jurisdiction over the matter. However, the j’ment would be limited to the value of the lot. Also, in exercising quasi in rem jurisdiction, the action must be preceded by the attachment & a curator ad hoc would have to be appointed to represent BG. Bossier Parish, where the immovable is situated, would be the proper venue for this action.
142
Local Bank holds a mort on property in Bossier Parish, which mort, evidenced by an authentic act, contains a confession of j’ment. The mort is security for the payment of a promissory note signed by BG in the amt of $100,000, payable to the order of Local Bank, & paraphed for identification w/ the aforesaid act of mort. BG is in default of the promissory note & has left the state. His whereabouts are unknown; his last known address, however, was in Oklahoma. Bank wants you to enforce its mort via ordinaria.
How will service of process of the legal proceedings instituted to enforce the mort via ordinaria be effected on BG?
The Petition can be served via registered or certified mail or delivered to BG at the last known address in Oklahoma under the long-arm statute. If long-arm service cannot be made, a curator will be appointed to represent him. If non-resident attachment of the prop is the basis for jurisdiction, pleadings can be served upon the curator ad hoc appointed to represent BG.
143
Local Bank holds a mort on property in Bossier Parish, which mort, evidenced by an authentic act, contains a confession of j’ment. The mort is security for the payment of a promissory note signed by BG in the amt of $100,000, payable to the order of Local Bank, & paraphed for identification w/ the aforesaid act of mort. BG is in default of the promissory note & has left the state. His whereabouts are unknown; his last known address, however, was in Oklahoma. Bank wants you to enforce its mort via ordinaria.
What must be prayed for in the pleadings utilized to enforce the mort via ordinaria against this non-resident Δ? Are the contents of the prayer dependent upon the nature of the service effected upon the non-resident?
If ordinary action is initiated under the long-arm statute, Bank should simply pray for enforcement of the mort & any damages that are just & proper as it would in any other case. If, however, non-resident attachment is the procedure used, then writ of attachment must issue & the prayer would include seizure of the lot in accordance to the value of the property
144
Local Bank holds a mort on property in Bossier Parish, which mort, evidenced by an authentic act, contains a confession of j’ment. The mort is security for the payment of a promissory note signed by BG in the amt of $100,000, payable to the order of Local Bank, & paraphed for identification w/ the aforesaid act of mort. BG is in default of the promissory note & has left the state. His whereabouts are unknown; his last known address, however, was in Oklahoma. Bank wants you to enforce its mort via ordinaria.
How will the judgment obtained via ordinaria be executed?
If jurisdiction is based on the long-arm statute, the judgment will be executed in accordance w/ a writ of fieri facias directing the sheriff to seize & sell the prop at auction. If a judgment is obtained based on non-resident attachment, the j’ment will be limited to the value of the property.
145
Estranged Wife comes into your office & informs you that she has just left her husband & wants a divorce as quickly as possible. She wants you to explain to her all of the steps in the process & the length of time that each step will take. Please provide Estranged Wife the explanation she desires.
EW can file a verified petition for divorce under Art. 102. The grounds would be living separate & apart for 180 days. The Petition would then be served on her H unless he signed a waiver of service. EW would have to live separate & apart from her H continuously for 180 days from the date of service. She would then file a rule to show cause, verifying by affidavit that service was made (or waived) & that she & her H lived separate & apart continuously for that time period. The rule must be served on her H unless served was waived. EW would then present the following evidence at the rule to show cause hearing: (1) the divorce petition; (2) the sheriff’s return of service of the petition, showing personal service on her H or waiver of service; (3) the rule to show cause & supporting affidavit; (4) the sheriff’s return of service of the rule or waiver or service; & (5) another affidavit by EW, executed after filing the rule that she & her H have lived separate & apart & that she desires to be divorced.
146
Please state what the standard of review is when an appeal is taken from j’ment of a trial judge on the merits of a claim
The Ct of App may review both the law & facts in a civil matter such as this (where there was not jury). Great deference will be giving to the factual findings of the trial judge, & his findings of fact will not be disturbed unless he is manifestly erroneous or clearly wrong. In contracts, little weight is given to the trial ct’s conclusions of law, & the standard of review on questions of law is whether the trial judge committed an error of law.
147
Counsel for π calls as a witness the foreman of Δ and proceeds to question the witness using leading questions. Counsel for Δ objects. How should Judge rule on this objection?
The judge should overrule the objection. When a party calls a hostile witness or a witness identified with an adverse party, interrogation may be by leading questions. The foreman of Δ is likely hostile & certainly identified with Δ.
148
At the conclusion of Δ’s case, π calls in rebuttal an additional expert witness to testify about Client’s alleged malpractice. Expert’s testimony is in addition to similar testimony given by 2 other experts on π’s case in chief. Is rebuttal available to π for the presentation of this 1 witness?
Yes. Generally, the pretrial order would govern the admissibility of witness testimony subject to the trial judge’s discretion. However, since rebuttal witnesses are not required to be listed in the pretrial order, the judge may admit the testimony of this rebuttal expert witness, even if unlisted. The trial judge also has discretion to limit testimony he may deem cumulative. Since this appears to be cumulative testimony, the judge could very well prohibit it as an exercise of her discretion.
149
Client brings you a Petition with which she has been served. Client tells you that this very matter was submitted to an arbitrator, that the arbitration proceeding has in fact been completed and that an award has been made. How, if at all, can this information be used in the pleadings that you will use to respond to the Petition?
Client may plead in his answer the affirmative defense of arbitration & award.
150
Trial has been completed. Judgment ahs been entered for Client awarding damages and costs. What must you do in order to have the specific amt of the costs determined & taxed against the party cast in j’ment?
File a rule to show cause why costs should not be paid to client by the party cast in j’ment.
151
Client hands you a petition with which he was served 4 weeks earlier. Upon checking at the courthouse, you learn that a j’ment of default (“preliminary default”) was entered the day before. What, if anything can you do to prevent the confirmation of the default against him?
Client may file an answer or declinatory or dilatory exceptions any time prior to confirmation of the default j’ment. Client may also file peremptory exceptions at any stage of the proceeding.
152
Is there anything that can be done to compel Corporation to collect the improper expenses paid to Directors? If so, briefly explain the nature of the action that may be brought.
When a Corp refuses to enforce a right of the corp., such as demanding the Directors to cease their improper actions and reimburse the company for improper expenses, a shareholder may bring a derivative action to enforce the right on behalf of the corporation.
153
If there is an action that can be brought pursuant to facts above (Directors of Corp. are constantly traveling at the expense of Corp. for their own personal biz), who must be joined as Δ(s) and how must judgment be prayed for?
Client must join as Δs, Corporation and Directors. Client must include a prayer for j’ment in favor of Corporation and against the obligor, Directors, on the obligation sought to be enforced (i.e., reimbursement of the improper expenses).
154
Client is a Domestic Corp that owns & operates a moving & storage biz in Ouachita Parish where its registered office is located. It has been properly served w/ a petition naming it as Δ in a suit for personal injuries allegedly caused by the negligent operation of 1 of its moving vans. Suit was filed by π at his domicile in Jefferson Parish. However, Petition indicates that the accident occurred in Ouachita Parish. All witnesses to the accident live & work in Ouachita Parish. π’s treating physicians all live & work in Ouachita Parish.
Was Petition filed in the proper parish?
No. proper venue for a suit against a domestic corp. is in the parish of its registered office, which in this case is Ouachita. Ouachita is also the proper venue for this tort action b/c that is where the wrongful conduct occurred & damages were sustained.
155
Client is a Domestic Corp that owns & operates a moving & storage biz in Ouachita Parish where its registered office is located. It has been properly served w/ a petition naming it as Δ in a suit for personal injuries allegedly caused by the negligent operation of 1 of its moving vans. Suit was filed by π at his domicile in Jefferson Parish. However, Petition indicates that the accident occurred in Ouachita Parish. All witnesses to the accident live & work in Ouachita Parish. π’s treating physicians all live & work in Ouachita Parish.
Presume that venue is proper. Domestic Corp. wants you to have the petition transferred to Ouachita Parish. What, if any, procedure can you initiate to accomplish your client’s desires?
File a motion to transfer based on forum non conveniens. This allows transfer where the initial venue may have been proper (which is presumed here) but there is another, more convenient forum where the action may have been brought.
156
Client is a Domestic Corp that owns & operates a moving & storage biz in Ouachita Parish where its registered office is located. It has been properly served w/ a petition naming it as Δ in a suit for personal injuries allegedly caused by the negligent operation of 1 of its moving vans. Suit was filed by π at his domicile in Jefferson Parish. However, Petition indicates that the accident occurred in Ouachita Parish. All witnesses to the accident live & work in Ouachita Parish. π’s treating physicians all live & work in Ouachita Parish.
If a request for transfer is made, what are the reasons that the Ct may consider in ruling on the request?
Under the forum non conveniens procedure, a ct, for the convenience of the parties & witnesses & in the interest of justice, may transfer a civil case to another district where it might have been brought. Since this suit might have been (&, indeed, should have been) brought in Ouachita, the ct may transfer it to that parish. It is certainly a more convenient forum since that is the parish where the accident occurred & where all witnesses & treating physicians work & reside. It would also be in the interest of justice for a Ouachita Parish biz to defend this suit in Ouachita, rather than a distant forum such as Jefferson, particularly when the accident happened in Ouachita.
157
Client is a Domestic Corp that owns & operates a moving & storage biz in Ouachita Parish where its registered office is located. It has been properly served w/ a petition naming it as Δ in a suit for personal injuries allegedly caused by the negligent operation of 1 of its moving vans. Suit was filed by π at his domicile in Jefferson Parish. However, Petition indicates that the accident occurred in Ouachita Parish. All witnesses to the accident live & work in Ouachita Parish. π’s treating physicians all live & work in Ouachita Parish.
Presume that original venue is proper & that the request is made, what are your chances of successfully obtaining a transfer?
The chances are not very good b/c an action cannot be transferred on forum non conveniens grounds if venue was originally based on π’s domicile as was the case here.
158
You have received Δ’s answer to your complaint & believe that he has failed to deny any of the essential elements of your claim. You, therefore, intend to file a motion for j’ment on the pleadings. No discovery has been undertaken by either party. Is this motion available at this stage of the proceeding, under these facts? Explain why it is or is not available.
Yes. Any party may move for j’ment on the pleadings after the answer is filed but w/in such time as not to delay the trial. All allegations of fact in the complaint not denied by Δ, or by effect of law, are considered true.
159
π, in a personal injury action, has prayed for j’ment in the amt of $500,000. Can you compel the π to amend her complaint to eliminate this amt from her prayer? If so, what is the procedural vehicle that must be used to accomplish your end?
No specific monetary amt may be included in the prayer of the petition. A motion to strike is the appropriate remedy for improperly requesting specific monetary amt of damages. Attys’ fees & costs are available if a motion to strike is necessary.
160
Appellee has not answered the appeal, but requests by brief that it should receive interest at the judicial rate from the date of judicial demand. The j’ment of Trial Ct did not make such an award. How should App. Ct rule on this request?
Since the TC j’ment did not award interest, appellee is seeking a modification of the j’ment, which can only be done if appellee answers the appeal. Accordingly, the AC should deny appellee’s request.
161
Δ has asserted a reconventional demand which is totally unrelated to any claim asserted, or any issue raised, in the main demand. Further, the amt sued for in reconvention is far higher than the recovery properly prayed for in the main demand. What, if anything, can you do to obtain the dismissal of the reconventional demand?
Nothing. A Δ in the principal action may assert in a reconventional demand any cause of action which he may have against the π in the principal action regardless of the lack of connexity b/t the principal & reconventional demand. Furthermore, the reconventional demand may claim relief exceeding the amt sought in the principal demand.
162
At trial, π’s Expert testifies that Δ’s use of a medical device was below acceptable standards of medical practice in the community. At the conclusion of her testimony, Trial Judge remarks out loud that Expert “is obviously a very knowledgeable person.” What action, if any, should you take & why?
Move for a mistrial. Mistrial may be granted after a hearing, on motion of any party. The judge may not comment upon the facts of the case in the presence of the jury by commenting upon the evidence or giving an opinion as to what has been proved, not proved or refuted. Here, Trial Judge, at least implicitly, has demonstrated bias in favor of π’s case by favorably endorsing the credibility & weight of the testimony of π’s expert.
163
Corp. has been sued by 3 of its 10 shareholders to compel it to collect vacation travel expenses improperly charged to Corp. by several of its directors. The remaining shareholders have not been joined as Δs. Is there anything that Corp. can do to obtain the dismissal of this action?
No. Since there are only 10 shareholders, it is not impracticable for all of them to join or to be joined as parties to this derivative action to enforce a right of the corp. If the remaining shareholders refuse or fail to join as πs, they may be joined as Δs & required to assert their rights or be precluded thereafter from asserting them.
164
You have just completed a jury trial wherein the verdict was against your Client. 5 days after the j’ment is signed, you obtain an order from Trial Ct granting your Client a suspensive appeal. On the 6th day after the j’ment is signed, your Opponent files a motion for a new trial. On the 7th day after the j’ment is signed, you file the appeal bond for the amt of the security set forth in the order of appeal.
What action, if any, may the Trial Ct take w/ regard to the motion for a new trial?
Trial Ct may act on the motion for new trial which was timely filed under CCP Art. 1974 before the suspensive appeal was perfected. A suspensive appeal does not divest the trial ct of jurisdiction to hear the opponent’s timely filed motion for new trial. Jabbia v. Sanders
165
Presume instead that you obtain the order granting the suspensive appeal on the 15th day after the signing of the j’ment & file the appeal bond on the 40th day after the signing & that π does not file a motion for a new trial. After the record is lodged with App Ct, Opponent timely files a motion with App Ct to dismiss your appeal. What should the Ct’s ruling on the motion be? Why?
A suspensive appeal is effective when both the petition for appeal & the suspensive appeal bond are properly & timely filed. A suspensive appeal must be perfected within 30 days of the expiration of the delay for new trial (when no new trial has been requested). In this example, the suspensive appeal bond was filed on the 40th day after the signing of the j’ment which was too late. Assuming no new trial was requested, the suspensive appeal is not effective. Appellant’s late filed appeal bond is an irregularity imputable to the appellant which enables Opponent to move for dismissal of the suspensive appeal under CCP 2161. The motion to dismiss must be filed w/in 3 days of the return day or the date the record is lodged, whichever is later. Assuming the 3-day time period was met, the motion to dismiss the appeal should be granted.
166
π entered into a DFA w/ D whereby π became an authorized dealer for the retail sales & services of cars & parts furnished by D. B/c of financial problems, π terminated the franchise 5 years later & filed the instant action seeking recovery of damages based on the following causes of action:
1. Δ shipped more cars to π than was permitted by DFA;
2. Δ charged interest above the amt permitted by FPFA b/t the parties;
3. Δ violated a state law which req’d repurchase of inventory upon the termination of any franchise agreement.
D has filed an exception of no cause of action seeking the dismissal of only the 3rd cause of action b/c π failed to plead that D was given the notice req’d by the law.
What is the procedure/analysis that Trial Judge should follow in determining whether to grant the exception?
In considering an exception of no cause of action in multi-claim litigation such as this in which the ct is considering whether to dismiss only 1 of 3 claims, the ct must first determine (1) the petition asserts several demands or theories of recovery based on a single cause of action arising out of 1 trans/occs or (2) the petition is based on several separate & distinct causes of action arising out of separate & distinct trans/occs. If the former, the ct should overrule the exception of no cause of action if it finds the petition states a cause of action as to any demand or theory of recovery. If the latter, the ct should maintain the exception in part, but the partial j’ment rendered will not be a partial final j’ment which is appealable in absence of irreparable injury.
167
π entered into a DFA w/ D whereby π became an authorized dealer for the retail sales & services of cars & parts furnished by D. B/c of financial problems, π terminated the franchise 5 years later & filed the instant action seeking recovery of damages based on the following causes of action:
1. Δ shipped more cars to π than was permitted by DFA;
2. Δ charged interest above the amt permitted by FPFA b/t the parties;
3. Δ violated a state law which req’d repurchase of inventory upon the termination of any franchise agreement.
D has filed an exception of no cause of action seeking the dismissal of only the 3rd cause of action b/c π failed to plead that D was given the notice req’d by the law.
Possessed
Should Trial Judge grant the exception?
Given the sparse facts, it’s difficult, if not impossible, to determine whether π’s claims arise out of 1 trans/occ or separate & distinct trans/occs. Indeed, these claims may arise out of overlapping sets of operative facts. Nonetheless, it would appear that at least the 3rd claim is a separate & distinct trans/occ b/c it’s triggered by (& thus arises out of) termination of the FA & a separate state law req (as opposed to the contractual agreement). Thus the judge may, & arguably should, grant the exception given π’s failure to comply w/ the pre-req notice reqs under state law.
168
π entered into a DFA w/ D whereby π became an authorized dealer for the retail sales & services of cars & parts furnished by D. B/c of financial problems, π terminated the franchise 5 years later & filed the instant action seeking recovery of damages based on the following causes of action:
1. Δ shipped more cars to π than was permitted by DFA;
2. Δ charged interest above the amt permitted by FPFA b/t the parties;
3. Δ violated a state law which req’d repurchase of inventory upon the termination of any franchise agreement.
D has filed an exception of no cause of action seeking the dismissal of only the 3rd cause of action b/c π failed to plead that D was given the notice req’d by the law.
Trial Judge grants the exception. May π appeal this ruling?
No. A stated above, if the ct maintains the partial exception of no cause of action, the partial j’ment is not a partial final j’ment which is appealable in the absence of irreparable injury. Otherwise, it is an interlocutory j’ment reviewable on appeal, after trial on the merits.
169
π entered into a DFA w/ D whereby π became an authorized dealer for the retail sales & services of cars & parts furnished by D. B/c of financial problems, π terminated the franchise 5 years later & filed the instant action seeking recovery of damages based on the following causes of action:
1. Δ shipped more cars to π than was permitted by DFA;
2. Δ charged interest above the amt permitted by FPFA b/t the parties;
3. Δ violated a state law which req’d repurchase of inventory upon the termination of any franchise agreement.
D has filed an exception of no cause of action seeking the dismissal of only the 3rd cause of action b/c π failed to plead that D was given the notice req’d by the law.
Alternatively, may π apply for supervisory writs?
Yes. Any party may apply for supervisory writs.
170
State the delay(s) w/in which the action to answer an original petition in district ct.
15 days from date of service of the petition or 30 days if issued by long-arm.
171
State the delay(s) w/in which the action to answer a petition after an exception is overruled.
10 days after the exception is overruled.
172
State the delay(s) w/in which the action to amend an original petition w/o leave of ct.
Any time before the answer is served.
173
State the delay(s) w/in which the action amend an answer
Any time w/in 10 days after it has been served.
174
State the delay(s) w/in which the action to file a suspensive appeal.
W/in 30 days of expiration of the delay for applying for a new trial.
175
State the delay(s) w/in which the action to file a devolutive appeal.
W/in 60 days of expiration of the delay for applying for a new trial.
176
State the delay(s) w/in which the action to answer an appeal in a ct of appeal.
An appellee is not required to answer an appeal unless he desires to have the j’ment modified, revised or reversed or unless he demands damages against the appellant. In such cases, the appellee must answer within 15 days after the return day or the lodging of the record, whichever is later.
177
State the delay(s) w/in which the action to answer interrogatories.
Answers to interrogatories are due w/in 15 days after service of the interrogatories.
178
State the delay(s) w/in which the action to apply for a new trial.
The delay for applying for a new trial is 7 days, exclusive of legal holidays. The delay begins to run on the day after service of notice of signing of j’ment.
179
State the delay(s) w/in which the action to appeal the issuance of a preliminary injunction.
An appeal may be taken from the issuance of a preliminary injunction w/in 15 days from the date of j’ment.
180
Client has delivered a written notice to Tenant demanding that he vacate the leased premises w/in 10 days for nonpayment of rent. The 10 day period has elapsed & Tenant is still there. What steps must you take to place Client in possession of the leased premises?
When tenant’s right of occupancy ceased & lessor wishes to obtain possession of premises, lessor or his agent shall cause written notice to vacate premises to be delivered to tenant. The notice shall allow tenant not less than 5 days from the date of delivery to vacate leased premises. Clearly, tenant has received adequate notice (10 days here). Tenant may have waived this notice to vacate by written waiver in a lease. If tenant fails to comply w/ the notice to vacate or if tenant has waived the right to receive a notice to vacate, lessor may cause tenant to be summarily cited by a ct of competent jurisdiction to show cause why it should not be ordered to deliver possession of premises to lessor. Lessor’s rule to show cause shall state the grounds upon which the eviction is sought. Ct shall give notice of the rule of tenant at least 3 days prior to the hearing on the rule. At conclusion of the rule if ct finds that lessor is entitled to an eviction, ct shall render immediately a j’ment of eviction ordering tenant to deliver possession of premises to lessor. If tenant doesn’t comply w/ the j’ment of eviction w/in 24 hrs after its rendition, ct shall issue immediately a warrant directed to Sheriff to deliver possession of premises to lessor. Thereafter, Sheriff shall execute the warrant of eviction & put lessor in possession of premises. If tenant disputes the order of eviction, a suspensive appeal must be perfected (w/ an appeal bond) w/in 24 hrs after the rendition of the j’ment of eviction.
181
Briefly explain what the right of discussion is.
The right of discussion permits a secondary debtor to require the creditor to exhaust the assets of the primary debtor prior to proceeding against the secondary debtor. If the creditor fails to do so, the secondary debtor may interpose the plea of discussion as a dilatory exception.
182
π filed suit for prop damages resulting from the performance of construction work adjacent to π’s residence. The lawsuit was filed against Const. Co. in the First Parish Ct of Jefferson Parish seeking j’ment in the total amt of $5,000 for destruction of shrubs valued in the petition at $1,000 & diminution in the prop’s value in the amt of $4,000. Personal service of the petition was made upon Const. Co., thru its agent for service of process, on 9/1/03. As of 9/13/03, Const. Co. hadn’t filed an answer to π’s petition. On that date, w/o first obtaining an entry of j’ment by default, a default j’ment in favor of π was confirmed & rendered against Const. Co. for $6,500 ($5,000 for diminution of the value of the prop & $1,500 for replacement of plants). The j’ment was signed on the same day that it was rendered. On 9/28/03, Const. Co. comes to you & asks you for your advice as to what can be done to appeal or set aside the Ct’s j’ment.
Const. Co. wants to know whether First Parish Ct acted prematurely when it confirmed the default j’ment. What is your advice to Const. Co?
No, First Parish Ct did not act prematurely. First Parish Ct is a parish ct in which a default j’ment may be taken in 10 days (unlike the 15 days req’d in district cts) if Δ fails to answer or respond to the Petition. It is a one-step process that doesn’t require entry of a preliminary default 2 days prior to confirmation of default as is req’d in district cts.
183
π filed suit for prop damages resulting from the performance of construction work adjacent to π’s residence. The lawsuit was filed against Const. Co. in the First Parish Ct of Jefferson Parish seeking j’ment in the total amt of $5,000 for destruction of shrubs valued in the petition at $1,000 & diminution in the prop’s value in the amt of $4,000. Personal service of the petition was made upon Const. Co., thru its agent for service of process, on 9/1/03. As of 9/13/03, Const. Co. hadn’t filed an answer to π’s petition. On that date, w/o first obtaining an entry of j’ment by default, a default j’ment in favor of π was confirmed & rendered against Const. Co. for $6,500 ($5,000 for diminution of the value of the prop & $1,500 for replacement of plants). The j’ment was signed on the same day that it was rendered. On 9/28/03, Const. Co. comes to you & asks you for your advice as to what can be done to appeal or set aside the Ct’s j’ment.
Can you file an appeal on behalf of Const. Co?
No. An appeal from a parish ct j’ment must be taken w/in 10 days from the date of j’ment or from service of notice of j’ment when service is req’d. here, since Δ was served personally, no service of notice of default j’ment is req’d and clearly 10 days have elapsed since the date of j’ment.
184
π filed suit for prop damages resulting from the performance of construction work adjacent to π’s residence. The lawsuit was filed against Const. Co. in the First Parish Ct of Jefferson Parish seeking j’ment in the total amt of $5,000 for destruction of shrubs valued in the petition at $1,000 & diminution in the prop’s value in the amt of $4,000. Personal service of the petition was made upon Const. Co., thru its agent for service of process, on 9/1/03. As of 9/13/03, Const. Co. hadn’t filed an answer to π’s petition. On that date, w/o first obtaining an entry of j’ment by default, a default j’ment in favor of π was confirmed & rendered against Const. Co. for $6,500 ($5,000 for diminution of the value of the prop & $1,500 for replacement of plants). The j’ment was signed on the same day that it was rendered. On 9/28/03, Const. Co. comes to you & asks you for your advice as to what can be done to appeal or set aside the Ct’s j’ment.
If not, is there anything that can be done to obtain any relief from the j’ment for Const. Co? If so, in which ct must it be filed?
An action for nullity for vices of forms, which can be brought at any time, is still timely & would be based on the ct entering a default j’ment beyond the amt prayed for in the petition, which is not a valid default j’ment. The action for nullity must be brought in the First Parish Ct of Jefferson which rendered the j’ment.
185
Month-to-month T has failed to pay rent. After trying & failing to reach T by phone & by knocking on his door for 3 days, MVA tacked a notice to vacate to the door of T. On the 6th day after tacking the notice, MVA filed a rule to show cause why T shouldn’t be ordered to deliver possession of the premises to MVA. Constable went to T’s apt to serve the citation. He knocked several times & looked for signs of someone being at home. Unable to ascertain the whereabouts of the T & noticing that the notice to vacate was still tacked to the door of the apt, Constable tacked the citation to the door. T comes to you the day before the rule has been set for hearing & complains about the fact that he found the notice & citation tacked to his door. T has been out of town visiting his bro for the past 2 weeks & asserts that he paid the rent but doesn’t have the canceled check as it hasn’t cleared the bank.
T wants u to challenge the validity of MVA’s & Constable’s tacking the notice & the citation. How do u go about making the challenge & what are your chances of success?
File a declinatory exception of insufficiency of service of process. However, T’s chances of success on the exception are not very good. If the whereabouts of the lessee are unknown, all notices req’d to be delivered or served on the lessee may be attached to the door of the premises & will have the same effect as delivery to or personal service on the lessee. MVA & Constable appear to have made a reasonably diligent effort to locate T before attaching the notices to the door &, therefore, their action will probably be upheld.
186
Month-to-month T has failed to pay rent. After trying & failing to reach T by phone & by knocking on his door for 3 days, MVA tacked a notice to vacate to the door of T. On the 6th day after tacking the notice, MVA filed a rule to show cause why T shouldn’t be ordered to deliver possession of the premises to MVA. Constable went to T’s apt to serve the citation. He knocked several times & looked for signs of someone being at home. Unable to ascertain the whereabouts of the T & noticing that the notice to vacate was still tacked to the door of the apt, Constable tacked the citation to the door. T comes to you the day before the rule has been set for hearing & complains about the fact that he found the notice & citation tacked to his door. T has been out of town visiting his bro for the past 2 weeks & asserts that he paid the rent but doesn’t have the canceled check as it hasn’t cleared the bank.
In the event that u aren’t successful w/ that challenge, T wants u to ensure that an appeal can be taken of any adverse j’ment & that the appeal will suspend execution of the j’ment. How long after rendition of a j’ment of eviction must the appeal be filed?
In order to perfect his right to suspensive appeal of the j’ment, T must answer the rule under oath, plead an affirmative defense entitling him to retain possession of the premises & file an appeal bond w/in 24 hrs after the rendition of the j’ment of eviction in an amt sufficient to protect MVA against any damage it may sustain as a result of the appeal. One possible affirmative defense available to T is extinguishment of the obligation since he allegedly tendered payment of the rent.
187
Non-resident owns prop in Jefferson Parish. TX Bank contacts you & tells you about the prop and that it loaned money to Non-resident in TX and that the loan is now in default. Bank wants you to obtain a money j’ment against Non-resident.
Please explain each step that you must take, including where the action must be filed, in order to initiate & maintain the action against Non-resident & specify against whom or what the various proceedings (to the action’s conclusion) must be initiated.
In the absence of any other contacts with LA, it’s questionable whether any assertion of jurisdiction by a LA ct over Non-resident will survive constitutional scrutiny under Shaeffer v. Heitner. One possible basis, however, is non-resident attachment of immovable prop in LA. The action could be brought in Jefferson Parish, where the prop is located, & must be preceded by attachment of the prop pursuant to a writ of attachment. A curator ad hoc will be appointed to represent the non-resident Δ. The curator will attempt to locate Δ & notify him of the action. If Δ is located & chooses to defend the action, he may return to LA and do so. If Δ cannot be located or chooses not to return, he will be represented by the curator at the trial of the matter. If Δ prevails at trial & on any appeal, the case is over. If π gets a j’ment, it will be enforced by writ of fieri facias directing the sheriff to seize & sell the prop. A quasi in rem j’ment, however, cannot be enforced beyond the value of the seized prop.
188
Non-resident owns prop in Jefferson Parish. TX Bank contacts you & tells you about the prop and that it loaned money to Non-resident in TX and that the loan is now in default. Bank wants you to obtain a money j’ment against Non-resident.
You have obtained a j’ment against Non-resident who never subjected himself personally to the jurisdiction of the ct. Can Bank pursue Non-resident personally on the j’ment? Please explain & include in your explanation what Bank, using this j’ment, can execute against.
No. As indicated above, this is a j’ment based on quasi in rem, not personal jurisdiction, & the amt of any such j’ment is limited to the value of the seized prop, which is the only prop that can be used to satisfy the j’ment.
189
On Friday, 6/18/04, General Counsel hands you a district ct petition which was served on Corp. on 6/2/04. You contact the Clerk of Ct and are informed that a j’ment of preliminary default was entered the previous day, 6/17/04.
What action(s), if any, can you take at this point to prevent the confirmation of the preliminary default j’ment? Please explain.
You may still file responsive pleadings, either an answer or any available exception. Exceptions may be filed any time prior to confirmation of a default. A preliminary default may not be confirmed until 2 full days, excluding legal holidays, after entry of the preliminary default. In this case, the preliminary default was entered on Thursday, 6/17. Friday, 6/18 and Monday, 6/21 are 2 days (Saturdays & Sundays are legal holidays which are excluded). Therefore, the default may not be confirmed until Tuesday, 6/22.
190
On Friday, 6/18/04, General Counsel hands you a district ct petition which was served on Corp. on 6/2/04. You contact the Clerk of Ct and are informed that a j’ment of preliminary default was entered the previous day, 6/17/04.
At 4:00pm on Monday, 6/21/04, you take your responsive pleadings to be filed. While at the Clerk’s Office, you discover that the j’ment of preliminary default entered on 6/17 was confirmed on the morning of 6/21, & that a final j’ment by default was entered against Corp. & has been filed of record. What action, if any, could you take to enable you to file the responsive pleadings? Explain fully.
File an action to annul the j’ment for vices of form. A final j’ment shall be annulled if it is rendered against a Δ against whom a valid j’ment by default hasn’t been taken. For the reasons mentioned above, this default j’ment is invalid since it was prematurely confirmed.
191
By signing a pleading, what do you certify?
The atty’s signature certifies that he has read the pleading, it is reasonably well grounded in fact; it is warranted by existing law or good faith argument for a change in existing law; and it is not being interposed for any improper purpose such as to harass, delay or increase litigation costs.
192
How should the appellate ct rule on Δ’s request for damages & atty’s fees for frivolous appeal?
The appellate ct should deny Δ’s request for damages & atty fees. While an appellee generally need not answer an appeal, he must answer the appeal if he desires, inter alia, damages against the appellant. Since Δ did not answer the appeal, he is foreclosed from now seeking damages.
193
You are defending the depo of a key employee of your client in a K dispute. As the questioning proceeds, you believe opposing counsel is attempting to delve into personal matter of the deponent that have no connection whatsoever to the litigation in order to try to frustrate & embarrass the witness.
Explain 2 things you can do to remedy this problem.
1. You may instruct the deponent not to answer when necessary to prevent harassing questions or questions which seek info that is not reasonably calculated to lead to the discovery of admissible evidence; or
2. You can move to terminate the depo alleging that it is being conducted in bad faith, or to annoy, embarrass or oppress the deponent.
194
π retains you to file suit against D & C as a result of a car accident that occurred in Rapides Parish on 9/1/04. π was struck by D when D swerved to avoid a large box that had fallen off of C’s truck. π sustained only damage to her car. Co. is a LA corp. w/ registered offices in EBR Parish. D also lived & worked in EBR at the time of the accident, but has since moved to Bossier Parish, where she now lives & works. π resides in Acadia Parish.
Identify all proper venues in which π can file a single lawsuit against both D & C. For each venue identified, you must explain why venue is proper.
Rapides– proper venue b/c that is the parish where the wrongful conduct occurred & where damages were sustained.
EBR – proper venue b/c C is a domestic corp. & this is the parish of its registered office. This parish is also proper b/c it was the domicile of D & suit may be filed in her old or new domicile for 1 year after the change unless D filed a declaration of intent to change domicile.
Bossier – proper venue b/c this is D’s new domicile & b/c C is a joint tortfeasor w/ D & suit against joint tortfeasors may be brought in the parish where venue is proper as to any 1 of them.
There are no long-arm Δs & the facts don’t suggest that π’s uninsured motorist carrier will be named as a Δ. Therefore, π’s domicile, Acadia, is not a proper parish of venue.
195
You are defending a client in a vigorously contested tort suit. 3 weeks before an important motion is scheduled for hearing, you learn that the judge to whom the case is assigned is being represented personally in a domestic matter by the senior partner of the law firm that employs π’s counsel. What, if anything, can you do about this?
You could file a motion to recuse the judge. A judge may be recused when an atty in a case represents the judge at the time of hearing. However, here, π’s counsel does not represent the judge, another atty in his firm does. Thus, this may not be a permissive ground for recusal. The only other argument would be that the senior atty’s personal representation of the judge would so bias or prejudice his view of the case in favor of π’s cause, represented by a presumably junior atty from the same fir, that recusal is proper.
196
Δ has served requests for documents upon you. One of the requests is for all written statements you obtained from prospective witnesses. How do you respond?
Within 15 days after service of your request for documents, you must serve on the Δ a written response. You may raise, in your response, an objection to producing the written statements & support the objection w/ your reason for objecting. After you have raised the objection the Δ must move for an order to compel production of docs. The discoverability of written statements of fact witnesses is in the discretion of the trial judge. Under certain circumstances, production of such statements may be protected b/c they’re the work product of counsel obtained in anticipation of litigation or preparation for trial. Nevertheless, the TC has the discretion to order the production of the statements, if it concludes that the party requesting the witness statements will be unfairly prejudiced. This usually occurs when the party requesting the statements didn’t have an opportunity to obtain the statements of fact witnesses.
197
RCD, a res of Bossier Parish, borrowed $50,000 from Caddo Parish Bank. In addition to obtaining a chattel mort on D’s race car & its motor, Bank obtained a personal guaranty from M, a res of Webster Parish, that he would pay the debt if D failed to do so. M owns the spare motor which is used by D when the main engine malfunctions in a race. Both the car & its motor & spare motor are kept at the domiciles of D & M, respectively. All loan papers were signed at the B’s main office in Caddo. D didn’t win 1 race during the last season & is now 4 months in arrears on his loan payments. B has discovered that D & M have are changing their domicile to NC. B comes to you w/ this info & wants you to take all steps necessary to preserve it ability to enforce the chattel mort & the personal guaranty.
What steps must be taken to protect its interest?
B may petition for a writ of attachment & a writ of sequestration of 1) the spare motor, and 2) the car & its motor, respectively. The procedure for obtaining each writ requires B to file a verified petition stating the grounds for the attachment or sequestration. Attachment may be based upon mechanic’s ill-motive to avoid paying B. One of the grounds for attachment is that Δ is about to permanently leave the state. Thus, B may proceed to attach the spare motor in M’s possession. B may also sequester D’s car & its motor since B holds a chattel mort on the prop. Sequestration is allowed when π claims a mort or security interest or privilege on prop w/in the power of the Δ to conceal or remove from the parish while the suit is pending. Since the car & motor may be easily moved & it’s D’s intent to take it out of state, the pre-reqs to sequestration have been met.
198
RCD, a res of Bossier Parish, borrowed $50,000 from Caddo Parish Bank. In addition to obtaining a chattel mort on D’s race car & its motor, Bank obtained a personal guaranty from M, a res of Webster Parish, that he would pay the debt if D failed to do so. M owns the spare motor which is used by D when the main engine malfunctions in a race. Both the car & its motor & spare motor are kept at the domiciles of D & M, respectively. All loan papers were signed at the B’s main office in Caddo. D didn’t win 1 race during the last season & is now 4 months in arrears on his loan payments. B has discovered that D & M have are changing their domicile to NC. B comes to you w/ this info & wants you to take all steps necessary to preserve it ability to enforce the chattel mort & the personal guaranty.
What pleadings & supporting documentation must be filed in order to effectuate the steps?
The procedure for attachment & sequestration involves filing a verified petition, stating the grounds for the attachment or sequestration. The attached or sequestered prop cannot be sold until B gets a j’ment against M & D, but B does get a privilege from the date of seizure if B ultimately obtains a j’ment.
199
RCD, a res of Bossier Parish, borrowed $50,000 from Caddo Parish Bank. In addition to obtaining a chattel mort on D’s race car & its motor, Bank obtained a personal guaranty from M, a res of Webster Parish, that he would pay the debt if D failed to do so. M owns the spare motor which is used by D when the main engine malfunctions in a race. Both the car & its motor & spare motor are kept at the domiciles of D & M, respectively. All loan papers were signed at the B’s main office in Caddo. D didn’t win 1 race during the last season & is now 4 months in arrears on his loan payments. B has discovered that D & M have are changing their domicile to NC. B comes to you w/ this info & wants you to take all steps necessary to preserve it ability to enforce the chattel mort & the personal guaranty.
In what parish(es) must these steps be taken?
Venue for the attachment proceeding would be Webster Parish, the parish where the spare motor is situated; & venue for the sequestration proceeding would be Bossier Parish, the parish where D resides & where the car & motor are situated.
200
When π filed her petition, it was allotted to Judge who is married Lawyer. π is concerned that J may be biased in favor of Δ b/c J’s husband represented Δ in the negotiation of the K in dispute. L does not, however, represent Δ in the lawsuit.
Is there anything that can be done to prevent J from handling this matter? Briefly explain what may be done & the reasons why the procedure you proposed may be pursued.
J is not likely to be called as a witness in the case, so there is no mandatory ground for her recusal. In addition, J was not involved as atty in the cause (only her husband, L, was involved in the subject matter of the dispute) nor is she related to an atty in the case, since L does not represent Δ in this matter. Therefore, there are no discretionary grounds for recusal unless π can show that J is biased, prejudicial or interested in the cause b/c of her husband’s former representation of Δ.
201
When π filed her petition, it was allotted to Judge who is married Lawyer. π is concerned that J may be biased in favor of Δ b/c J’s husband represented Δ in the negotiation of the K in dispute. L does not, however, represent Δ in the lawsuit.
Please explain how & when the procedure may be initiated & by whom it will be resolved.
Judge may be recused on her own motion or the motion of any party. Once the motion is made, Judge may recuse herself or refer the motion. The motion will be heard by another judge of the district. If none, the motion may be heard by a lawyer appointed by the judge, unless the grounds are the judge’s interest in the cause; then a judge in an adjoining district must hear it.
202
Atty for Δ, in answering your Petition, alleges that an identical suit was filed in federal ct 1 month before this suit was filed. He moves that the state ct suit be stayed. How will the Ct rule on this motion?
The ct should grant the motion. When a suit is brought in a LA ct while another is pending in federal ct on the same transaction or occurrence, b/t the same parties in the same capacities, the ct may stay all proceedings in the 2nd suit until the 1st has been discontinued or a final j’ment has been rendered.
203
Would the Ct’s ruling change if the state ct Petition was filed before the federal complaint?
Yes. As stated in the previous card, the 2nd suit should be stayed. Under these facts, the federal suit should be stayed.
204
C brings you Petition w/ which she has just been served. π seeks money damages for C’s alleged breach of K to sell racehorse to π. C tells you that π sued 2 years earlier on the same K, but limited his claim in that suit to one for specific performance. π lost the prior suit on its merits & did not appeal.
What action, if any, can you take to challenge the continued maintenance of this Petition?
File a peremptory exception of res judicata. A aparty shall assert all causes of action arising out of the trans/occ that is the subject matter of the litigation. Since the cause of action for breach of K arise out of the same transaction (i.e, K) that was the subject matter of the suit for specific performance, the j’ment on such suit precludes π from maintaining this claim, as this claim was extinguished in the prior final j’ment.
205
C brings you Petition w/ which she has just been served. π seeks money damages for C’s alleged breach of K to sell racehorse to π. C tells you that π sued 2 years earlier on the same K, but limited his claim in that suit to one for specific performance. π lost the prior suit on its merits & did not appeal.
If there is an action that can be brought, how will Judge rule & what relief will she grant?
The Judge should grant the peremptory exception & dismiss the case with prejudice.
206
What proceeding, if any, can be filed in order to resolve all competing & conflicting claims?
A concursus proceeding.
The parish where the immovable property is situated is the place of proper venue.
207
If it’s possible to file a concursus proceeding, what, if anything, can π do to relieve itself of all liability upon the filing of the proceeding?
π can implead Δ1, Δ2 and Δ3 even though π denies liability to any of them. The concursus petition must allege the nature of the conflicting claims & request that each Δ assert their respective claims contradictorily against all other parties to the proceeding. With leave of ct, π may deposit into the registry of the ct the bond funds claimed by the Δs & which π admits is due one or more of the Δs. After π deposits the money into the registry of the ct, π will be relieved of all liability to all of the Δs for the money so deposited.
208
C agreed to let CC have B when it was born. Subsequent to the surrender of B, there was some correspondence concerning adoption but no “adoption papers” were prepared or signed. 2 weeks after B was surrendered, C sent CC a letter requesting return of B. CC has continuously refused to return B.
What procedure can be instituted to obtain the custody of B?
How is this procedure instituted & tried?
When must the procedure be assigned for hearing?
The extraordinary remedy of a writ of habeas corpus. The writ will command CC who has B in their custody to produce B before the ct & to state the authority for custody.
A petition for writ of habeas corpus may be filed by C on behalf of B. The writ may be served by any person over the age of 21 who is capable of testifying. If it’s served by someone other than the sheriff, the affidavit of the server will be prima facie proof of service. Service may be made by personal service or by attaching the writ to an entrance door of the residence of CC. CC must answer stating whether the have B in their custody &, if so, they must produce B & state their answer by what authority they’re holding B.
The case may be tried summarily & the writ when ordered may be signed by the clerk under the seal of the ct; or it may be issued & signed by the judge w/o further formality.
The matter must be assigned for hearing not less than 2 nor more than 10 days after service of the writ; but upon proper showing, the ct may assign the matter for hearing less than 2 days after service of the writ.
209
π severely injured in explosion of beer keg at B. The explosion was caused by failure of a defective valve installed by I. I manf’d both the valve & the keg, & shipped the finished product directly to B from its manf’ing facility in PA. The sale of the keg was I’s first & only sale & shipment to a LA buyer.
π is a citizen & domiciliary of Ireland. He resides in St. Tammany Parish while on a 1-yr temp assignment to the US. I is a PA corp w/ its only place of biz in PA. Although it occasionally fills out-of-state order, 98% of its sales are w/in PA, & it doesn’t advertise or otherwise solicit biz outside of PA. Is isn’t licensed to do biz, & has no agent for SOP, in LA. π retains u to represent him in a suit against I to recover $ damages for his personal injuries.
You want to file suit in LA. On what basis, if any, can you obtain personal juris over I?
Given I’s isolated contact w/ LA, it’s unlikely a LA ct could obtain personal juris. One possibility might be specific juris for transaction biz in LA by sale of keg & valve here. The cause of action does arise out of that sale, a req for specific juris. However, this sale was I’s only contact w/ LA; I wasn’t licensed to do biz or registered to do biz in LA; & didn’t advertise or solicit biz in LA. As a result, this single sale doesn’t constitute sufficient minimum contacts w/ LA such that the maintenance of a suit here wouldn’t offend traditional notions of fair play & substantial justice under constitutional due process.
Long-arm stat probably also fail. Although I did cause injury in LA by tortious conduct (i.e., negligent manufacture of the valve) outside the state, I doesn’t solicit biz here, engage in any persistent course of conduct here, or derive substantial revenue from keg sales here (as this was its only sale).
Sub§A(8) of stat is another possible basis for personal juris. While I is a manufacturer of the defective component (the valve) or a product which caused damage in LA, I could not have reasonably foreseen or anticipated that its product would eventually be found here by reason of its marketing practices, which do not include LA.
210
Assuming personal jurisdiction can be obtained over I, in what parish or parishes can your suit be brought?
1. Venue would be proper in Orleans parish, where tort damages were sustained.
2. St. Tammany parish, parish of π’s residence would not be proper under the long-arm stat b/c it must be based on domicile, which is not the case here since there is clearly no intent to remain indefinitely.
3. Suit could also be brought in Orleans parish if the K for sale of the keg was executed there.
211
You’ve been appointed by the ct to represent a Δ in an interdiction action. What responsibilities, if any, do you have in conjunction w/ this appointment?
The interdict’s ct appointed atty must represent the Δ until discharged by the ct. The atty must personally visit & discuss the case w/ the Δ, including a discussion of the facts, law, rights & options of the Δ. Failure to do so may result in sanctions but won’t invalidate the proceedings.
212
Today, C brings you 2 default j’ments that were obtained against C & C’s wholly-owned corp, XYZ Corp. C explains that the lawsuit in which the j’ments were issued relates to a K that XYZ Corp entered & was performing & that he had no personal connection or responsibility for the claims asserted in the lawsuit (apart from his ownership interest in the corp).
You review the relevant suit record & determine that service upon both the C & his corp (for which C serves as the designated agent for service of process) were made via domiciliary service on C’s wife on 5/5/09. On 10/20/09, π moved for & obtained a preliminary default against C & C’s corp. Thereafter, on 1/15/10, a default j’ment was rendered in open ct. C was personally served w/ those j’ments on 1/25/10.
1. Does C have a legal basis for challenging the default j’ments that were taken against C & C’s wholly-owned corp?
C can challenge the default j’ment against XYZ Corp, but not the j’ment against him personally. Proper domiciliary service appears to have been made on C’s wife (assuming it was made at C’s usual place of abode & his wife resided w/ C therein); entry of the default against C personally was taken after the requisite period to answer (15 days from service); it was confirmed after 2 days of entry of default; & the default j’ment was then properly served upon him personally. Thus there’s no basis for C to seek a nullity of j’ment against him for vices of form; nor can he seek a nullity for vices of substance since C wasn’t deprived of the opp. To appear & assert his defense that he wasn’t personally obligated under the K. The fact that C had a valid defense which wasn’t asserted b/c of his inexcusable neglect will not itself provide grounds for nullifying the j’ment. Similarly, it’s too late for C to assert the defense in a peremptory exception of no cause of action. A peremptory exception filed subsequent to submission of the case & rendering of the decision is untimely.
The j’ment against XYZ Corp, however, is defective b/c service of the petition should’ve been made upon C personally as XYZ Corp’s agent for service of process. Thus, the subsequent default j’ment is a nullity.
213
Today, C brings you 2 default j’ments that were obtained against C & C’s wholly-owned corp, XYZ Corp. C explains that the lawsuit in which the j’ments were issued relates to a K that XYZ Corp entered & was performing & that he had no personal connection or responsibility for the claims asserted in the lawsuit (apart from his ownership interest in the corp).
You review the relevant suit record & determine that service upon both the C & his corp (for which C serves as the designated agent for service of process) were made via domiciliary service on C’s wife on 5/5/09. On 10/20/09, π moved for & obtained a preliminary default against C & C’s corp. Thereafter, on 1/15/10, a default j’ment was rendered in open ct. C was personally served w/ those j’ments on 1/25/10.
2. If one or both j’ments can be challenged, please state the specific procedural method (or methods) for contesting same
XYZ Corp should file a petition for nullity of j’ment for vices of form which may be brought at any time. A j’ment may be annulled if it’s rendered against a Δ who hasn’t been served w/ process as req’d by law & who hasn’t waived objection to jurisdiction. Here, for the reasons stated in the previous card, XYZ Corp wasn’t properly served w/ the petition.
It’s too late for XYZ Corp to file a declinatory exception of insufficiency of service of process since such exceptions must be filed prior to confirmation of default.
It’s also 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 1/25/10 date of service of the default j’ment.
214
You rep the tutor of 2 minor children. The tutor advises that the 2 minor children are co-owners of 100 acres of immovable timber prop in Claiborne Parish, LA. The 2 minor children have a combined ownership interest of 40% in the immovable prop (20% each), while the remaining 60% of the prop is owned by others. The other prop owners have secured an offer from a 3P to purchase the entire 100 acre tract. Although the children aren’t in need of $, the tutor believes that the amt offered for the 100 acre tract is fair & above the market value of the prop. What steps, if any, must the tutor take in order to allow the minor children to sell their interest in the prop?
Tutor must file a petition setting forth:
1. A description of the prop, the price & conditions of the proposed sale & the reasons which make it advantageous to the minor to sell at a private sale;
2. The tutor’s recommendation that sale be approved b/c of the above market value proposed sale price; &
3. The written concurrence of the undertutor.
The ct may require evidence prior to approval. If the undertutor doesn’t concur, the tutor would have to rule the undertutor into ct to show cause why the recommendation shouldn’t be approved. Since this matter involves sale of the minor’s immovable, the ct may require the tutor to furnish additional security in an amt fixed by the ct.
215
You represent owner of a commercial building who contacts you re a problem tenant. Tenant is a large law firm that recently has split up, & the building owner is concerned that the various departing factions of the firm will leave the building w/o paying the rent owed by the firm for the remainder of the yr. Several attys from the tenant firm already have departed & moved to a different location, bringing various equipment & furnishing w/ them. What steps, if any, can the building owner take to secure payment of the rental obligation? If something can be done, explain what specific pleadings you must file on behalf of the building owner, & what security, if any, is req’d.
To secure the payment of rent arising from the lease, building owner, as lessor, has a privilege on the lessee’s movables that are found in or upon the leased prop. Since owner has a lessor’s privilege over the remaining furnishings & equipment of tenant & it’s w/in the pwr of tenant to conceal, dispose of or remove the prop from the parish, during the pendency of an action to recover unpaid rent, owner may seek a writ of sequestration. Since some of tenant’s prop subject to the privilege has already been removed by tenant, owner may obtain the writ of sequestration even before the remaining rent is due b/c building owner has good reason to believe that lessee will remove the prop. No security is req’d to enforce a lessor’s privilege.
216
C visits you after receiving an executory process seizure notice re a home that he recently purchased. Although C is current on all of his home note payments, the executory process seizure was issued by his seller’s lender, who alleges that the seller hasn’t fulfilled his payment obligations. C understands that the seller’s outstanding loan balance was paid off w/ the sale proceeds that seller received from C.
What, if anything, can C do to stop the executory process action from going forward? If something can be done, explain what specific pleadings you must file on behalf of C, what relief is available, & what security, if any, is req’d.
When a mortgagor such as seller has sold prop to a 3P such as C & the prop is subsequently seized pursuant to executory process, C can seek an injunction on the ground that the debt has been extinguished. C would have to file a petition for an injunction in the ct where the executory proceeding is pending. Since executory process proceeds rapidly, C would need to request a preliminary injunction to arrest the seizure & sale of the home, in which case the hearing must be held before the sale. Security isn’t req’d when, as here, one of the grounds for the injunction is that the debt secured by the mortgage has been extinguished.
217
You represent B Corp, which as just been sued for breach of a construction K. You believe the lawsuit is improper b/c the construction K at issue contains a mandatory arbitration clause which requires any disputes arising therefrom to be resolved by arbitration.
1. Please succinctly explain what pleadings you would file in response to the lawsuit, the allegations that you would assert therein & the goal you seek to achieve by doing so.
I could file:
1. Either a dilatory exception of prematurity or a motion to stay the proceedings in the trial ct pending arbitration; &
2. A motion to compel arbitration.
In each of these pleadings I would assert that any disputes arising form the K must be resolved by arbitration as req’d under the K.
218
You represent B Corp, which as just been sued for breach of a construction K. You believe the lawsuit is improper b/c the construction K at issue contains a mandatory arbitration clause which requires any disputes arising therefrom to be resolved by arbitration.
2. Assume that the trial ct rejects your args & allows the breach of construction K lawsuit to proceed. Please succinctly explain what actions, if any, you can take to try to reverse the trial ct’s ruling & obtain your original desired goal.
Since a decision by the trial ct rejecting my arg is an interlocutory j’ment rather than a final j’ment on the merits, an appeal of that decision isn’t available. However, I can seek a review of the trial ct’s ruling by filing an application for Supervisory Writs in the appropriate State Ct of Appeal alleging that the trial ct erred in allowing the action to proceed in the trial ct rather than compelling arbitration.
219
π, a res of Bossier Parish, entered a written construction K w/ Building Corp, a LA corp whose registered office is located in Calcasieu Parish, for the construction of a camp in Sabine Parish. π signed the K in Bossier Parish while Building Corp signed the K in Calcasieu Parish. All work & services for the camp construction project were performed in Sabine Parish. The project was supervised by Building Corp’s Natchitoches Parish office.
After construction is completed, π has a variety of complaints concerning Building Corp’s deficient K performance & would like to sue them for breach of K. Please identify all parishes in which venue for a breach of K action against Building Corp would be proper. For each parish identified, you must explain the basis for venue in order to receive credit.
Venue is proper in the parish where the K was executed, which in this case would be in Bossier Parish, the parish in which π executed the K, & Calcasieu Parish where Δ executed the K.
Calcasieu is also a parish of proper venue under Art. 24(2) b/c Building Corp is a domestic corp. & this is the parish of its registered office.
Venue is also proper in Sabine Parish b/c that’s the parish where work or services under the K were performed.
Venue is also proper in Natchitoches Parish under Art. 77 b/c Δ has an office in this parish which had supervision over performance of the K.
220
Succinctly describe the reqs for a detailed descriptive list of succession property.
A detailed descriptive list must:
1. Be sworn to & subscribed by the person filing it;
2. Show the location of all items of succession prop; &
3. Set forth the FMV of each item as of the date of the death of the deceased.
221
You’re representing Δ ins. co. in an action brought against it by its insured. After 3 days of a bench trial, the π insured has rested her case. You believe that the π insured has failed to offer evidence needed to establish her cause of action. What, if anything, can you now do to try to secure an immediate ruling in favor of your client?
Since this is a bench trial, at the close of π’s case, I can make a motion for an involuntary dismissal on the ground that upon the facts & law, π has shown no right to relief.
222
π filed suit against Δ for breach of K. In its answer, Δ filed a general denial to the petition allegations, but asserted no affirmative defenses. Δ later asserted a reconventional demand against π in which Δ alleged that the K that forms the basis for the lawsuit lacked consideration & was the result of error or mistake. At the trial or the matter, defense counsel seeks to introduce evidence relating to the issues of failure of consideration & error/mistake when she’s met by the objection of π’s counsel, who correctly states that failure of consideration & error/mistake are affirmative defenses that weren’t specifically pled in the answer of the Δ. Should Δ be allowed to introduce evidence of failure of consideration & error/mistake? Why or why not?
Yes. 1st, while these are affirmative defenses (ADs) to a breach of K action which must be pled in answer under penalty of waiver, Δ raised these in the reconventional demand (RD). π failed to timely object, could’ve been done by motion/exception, in response to Δ’s RD. π’s failure to timely object may deemed a waiver of its right to oppose Δ’s belated assertion of these ADs thru improper vehicle of RD. π shouldn’t have waited until trial of RD to voice its objections.
2nd, since π knew of Δ’s intent to introduce evid of failure of consideration & error/mistake in context of Δ’s RD relatively early, π can’t claim surprise & prejudice to its case. 1 of primary reasons for req’ing ADs to be pled in answer is to avoid surprise to π at trial, a circ π can’t assert.
3rd, ct can treat an AD as such if it was “mistakenly” designated as an incidental demand. However, most likely applies if incidental demand was filed w/ answer, not after answer as was RD here. The facts don’t state/imply whether was mistake on Δ’s part, as opposed to effort to correct failure to plead these in his answer. It’s probably w/in ct’s discretion here to allow evid. on these ADs. Key considerations in exercising this discretion are whether ct views Δ’s assertion of defenses in a RD as effort to circumvent the req that such defenses be pled in the answer; & whether any surprise & prejudice to π’s case results.
223
π filed suit against Manf, contending π injured due defect in Manf’s product. Manf filed a 3P demand against your client, CI, contending Manf’s product isn’t defective but alternatively arguing that any defect that may be found in product is result of a defective component part of product that Manf bought from CI.
You rep CI. CI imported component part at issue from a foreign manf. Under LPLA, non-manf seller of product imported from a foreign manf can’t be liable under LPLA unless importer is also the alter ego of the foreign manf. Your client’s gm advises u that CI isn’t the alter ego of the foreign manf & has no affiliation, control or ownership interest in the foreign manf that it imported the component part. U have taken Art. 1442 depo of Manf, & its corp rep has no knowledge of any affiliation, etc by CI in foreign manf. Discovery hasn’t been completed, but case is schedule for trial in 6 months.
1. What, if anything, can you file on behalf of CI to attempt to terminate the litigation prior to trial? Explain fully, including an explanation of what such a motion, if any, will have to show to be granted.
CI may file a motion for summary j’ment which shows that there isn’t genuine issue of material fact & that it’s entitled to j’ment as a matter of law. While CI will have the burden of proof on the motion, since Manf, as 3P π, has the burden of proving at trial that CI is liable under the LPLA, CI’s burden on the motion doesn’t require it to negate all essential elements of Manf’s claim. Rather, CI can just point out there isn’t factual support for an essential element of Manf’s claim – that CI is the alter ego of the foreign manf from which CI purchased the allegedly defective component part. W/o factual proof of such, Manf can’t meet its burden of proof at trial on this element & thus CI should be entitled to summary j’ment dismissing it from the case.
224
π filed suit against Manf, contending π injured due defect in Manf’s product. Manf filed a 3P demand against your client, CI, contending Manf’s product isn’t defective but alternatively arguing that any defect that may be found in product is result of a defective component part of product that Manf bought from CI.
You rep CI. CI imported component part at issue from a foreign manf. Under LPLA, non-manf seller of product imported from a foreign manf can’t be liable under LPLA unless importer is also the alter ego of the foreign manf. Your client’s gm advises u that CI isn’t the alter ego of the foreign manf & has no affiliation, control or ownership interest in the foreign manf that it imported the component part. U have taken Art. 1442 depo of Manf, & its corp rep has no knowledge of any affiliation, etc by CI in foreign manf. Discovery hasn’t been completed, but case is schedule for trial in 6 months.
2. If there is such a motion, explain specifically what CI must file to support its motion.
CI will have to support its motion w/ affidavits from affiants who are competent, attesting to facts of which they have personal knowledge & which are admissible at trial. Here, CI can file an affidavit from gm attesting to the fact that the co. isn’t the alter ego of, & has no affiliation, control or ownership interest in, foreign manf. As gm, he should be competent to attest to such facts based on personal knowledge & which would appear to be admissible at trial. In addition, CI could further support its motion w/ an affidavit from counsel annexing the 1442 depo transcript of Manf which also demonstrates that Manf has no factual support to meet its burden on the affiliation element at trial. Such an affidavit & exhibit should easily meet the above mentioned criteria.
225
You are contacted by a client from Nebraska asking for your help to enforce a j’ment that client obtained from Nebraska ct against a LA res who is domiciled in Lincoln Parish. Can a j’ment from a Nebraska ct against a LA res be enforced in LA &, if so, please explain:
1. What action, if any, is needed & the reqs for that action;
2. Where the action must be filed; &
3. What documents, if any, must be included w/ the action?
Yes, the Nebraska j’ment can be enforced in LA against the LA res. There are 2 procedural options for having the Nebraska ct j’ment recognized by a LA ct. The 1st option is to bring an ordinary proceeding against the LA j’ment debtor to have the NE j’ment recognized & made the j’ment of a LA ct. The other, more expedient, option is utilize the procedure under the Enforcement of Foreign J’ment Act. This requires (1) annexing an authenticated copy of the NE j’ment to an ex parte petition & filing an affidavit w/ the last known address of the j’ment debtor & j’ment creditor; (2) the clerk then sends notice to the debtor; & (3) the NE j’ment may then be executed 30 days after mailing of the notice. Under either option, the venue for the proceeding would be Lincoln Parish, parish of the j’ment debtor’s domicile.
226
Which of the following is NOT a mandatory ground for recusal of a judge from a particular case:
1. The judge’s parent, child, or immediate family member is a party or atty employed in the cause;
2. At the time of the hearing of any contested issue in the cause, the judge has continued to employ to represent him personally, the atty actually handling the cause;
3. The judge is a witness in the cause; or
4. The judge is biased or prejudiced toward or against the parties or the parties’ attys or any witness to such an extent that he would be unable to conduct fair & impartial proceedings.
2 isn’t a mandatory ground for recusal of a jduge from a particular case. All other answer choices are mandatory grounds for recusal of a judge based on CCP 151(A).
227
Which of the following is NOT a basis for which a juror must be excused pursuant to a challenge for cause:
1. When the juror is closely related to one of the parties such that it must be reasonably believed that the relationship would influence the juror in coming to a verdict;
2. When the juror served on a previous jury which tried a case containing issues similar to the case you’re presenting;
3. When the juror refuses to answer a Q on the ground that his answer might tend to incriminate him; or
4. When the juror has formed an opinion in the case or isn’t otherwise impartial.
2 isn’t a basis for which a juor must be excused pursuant to a challenge for cause. Choices 1,3 & 4 are incorrect b/c all of tehse are bases upon which a juror must be excused for cause under CCP 1765.
228
Which of the following is NOT a reason that a ct would be req’d to deny the consolidation of 2 separate actions for trial:
1. It would cause jury confusion.
2. It would give one party an undue advantage.
3. It would lengthen the time req’d for trial.
4. It would prevent a fair & impartial trial.
3 isn’t a reason that a ct would be req’d to deny consolidation of 2 separate actions for trial. Choices 1, 2, & 4 aren’t correct b/c all of tehse are appropriate reasons to deny consolidation under CCP 1561.
229
Which of the following is NOT an appropriate venue for an action seeking to modify a child support obligation:
1. The parish where the person awarded support is domiciled;
2. The parish where the person paying the support is domiciled;
3. The parish where the support award was rendered if it hasn’t been registered & confirmed in another LA state ct; or
4. The parish where the support award was last registered if registered in multiple LA state cts.
2 isn’t an appropriate venue for an action seeking to modify a child support obligation. Choices 1, 3 & 4 are incorrect b/c they’re all proper venues for child support modifications proceedings under CCP 74.2(C).
230
You’re conducting voir dire in a jury trial, & believe that a prospective juror will be biased against your client based upon the answers that the prospective juror has provided to your questions. Describe at least 2 options you can consider to prevent this prospective juror from being seated as a juror?
One option exercise a challenge for cause when a juror, such as the prospective juror here, has formed an opinion in the case or isn’t otherwise impartial. The cause of the bias is immaterial.
Option two use a peremptory challenge which can be asserted w/o showing cause or even providing a reason for the challenge.
231
During the course of gathering & reviewing documents to respond to your opponent’s discovery requests, you discover numerous pre-lawsuit emails b/t non-lawyer upper level management employees of your client in which they discuss possible strategies & other issues that may arise in the event of litigation. Are these pre-lawsuti emails by non-lawyer employees of your client subject to production? Please explain the basis for your answer.
No. the emails are qualifiedly privileged & exempt from discovery under CCP 1424 as work product. Writings prepared by a party, in anticipation of litigation, aren’t 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.
232
π files suit against A & B, seeking to recover a $75,000 cash loan. You represent A & B who believe the transaction at issue is b/t π & their wholly owned company, AB Corp., & that they have no individual responsibility or liability in the matter. You examine the loan docs attached to π’s petition, which confirm A & B’s explanation. A & B further advise you that, contrary to the allegations in π’ petition, π actually owes AB Corp. $55,000. In addition to filing an answer on their behalf, A & B would like you to try to recover the amt owed to AB Corp. What can you file, if anything, to seek recovery of that amt from π? Please explain in specific detail.
AB Corp., thru its owners A & B, should in the suit brought by π & join w/ A & B in opposing the claim asserted against them. 3Ps such as AB Corp. may intervene in a lawsuit to enforce a right related to the pending suit, in this case to protect the company’s owners from being held personally liable for a corporate debt. In addition, as a Δ (by way of intervention) in the principal action, AB Corp. should reconvene against π to assert its claim against π for payment of the $55,000 debt owed to AB Corp. AB Corp.’s claim in reconvention doesn’t have to be related to π’s claim against A & B in the main demand.
