LA Civ Pro Old Exam Questions Flashcards
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?
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
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?
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.
3P’s may __________ in a lawsuit to enforce a right related to the pending lawsuit.
Intervene
What must an applicant show in order to obtain a temporary restraining order?
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
When a lawyer signs a pleading filed for a client, what does the lawyer signify personally?
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.
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?
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
Siblings want to bring partition action for immovable property before a certain city court judge that they all like…can they do it?
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
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?
- 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
Δ counsel continues to make lengthy objections during deposition seemingly to guide and instruct deponent as to how to answer. Are such objections appropriate?
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
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?
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.
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?
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.
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.
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 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.
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?
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
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.
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.
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.
- 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
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.
- 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)
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 _______________
Consent of all the parties. So if ∏ opposes the motion, deny motion for separate trials.
An action on a K may be brought _______________ or ___________
- 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
Succinctly describe the pleadings required to bring an executory process action a/g Δ:
- 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
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:
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
Can a tort action, a petitory action, and an action for executory process be brought in a single lawsuit?
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
The requirements for maintaining a class action are:
- 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
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?
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.
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 ∏
What obligations, if any, does an atty have as an officer of the court?
- 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
- He must treat the court, its officers, jurors, witnesses and opposing counsel with due respect;
- he must not interrupt opposing counsel or impede the orderly administration of justice and
- he must not knowingly encourage or produce false evidence or make false representations or otherwise deceive the court
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
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
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
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
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
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.
The peremptory exception of Rx may be pleaded _______________
At any time prior to the submission of the case for decision
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:
- he had possession at the time of the disturbance;
- he and his ancestors in title had quiet possession without interruption for more than a year immediately prior to the disturbance;
- the disturbance did in fact occur; and
- the possessory action was instituted within a year of the disturbance
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
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?
- 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)
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
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
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:
- minimum contacts with the state of LA, and
- 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”
An exception of improper venue is a declinatory exception which must be filed _____________
Prior to or with the answer
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
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.
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
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.
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
What is the Judge’s duty as to the instructions that she must give the jury?
- 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
- the court must reduce these instructions to writing
- 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
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
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.
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.
Identify the three different kinds of exceptions and explain the general purpose or function of each kind.
- declinatory exceptions are used by the exceptor to decline jurisdiction of the court
- dilatory exceptions are interposed to delay the progress of the action due to objections to the form of the proceeding or for more information
- peremptory exceptions are used to defeat or dismiss the action
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)
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
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.
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.
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
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.
- A JNOV should be granted when the facts and inferences, considered in the light most favorable to the opposing party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party.
- In deciding a new trial motion however, “the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses.”
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
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
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
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
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?
- 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. - 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
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
- 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
- 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
- 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.
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.
- HO’s counsel will support the SJ with affidavits from
a. Competent affiants,
b. On personal knowledge and
c. Containing facts admissible at trial - 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
- 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
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.
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:
- a community of interest b/w the joined parties;
- proper jurisdiction and venue over each of the cumulated actions; and
- all of the cumulated actions are mutually consistent and employ the same form of procedure
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.
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
How many jurors must concur to render a verdict when the trial is by:
- six jurors
- twelve jurors
6 jurors = 5 jurors
12 jurors = 9 jurors
How many peremptory challenges are permitted by each side if trial is by:
- a jury of 6
- 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
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.
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:
- annex an authenticated copy of the GA ct j’ment to an ex parte petition and
- file an affidavit with the name and last known address of silver and the j’ment creditor
- the clerk then sends notice by certified mail to silver
- 30 days a/f mailing the notice you may execute the j’ment
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.
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)
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.
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.
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:
- the deprivation of client’s legal rights, and
2. when the enforcement of the j’ment would be unconscionable and inequitable
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
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
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
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.
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
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.
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.
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:
- a writ to distrain the property of seller
- an order adjudicating seller in contempt; 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 other person appointed by ct to execute documents with the same effect as if done by the seller
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.
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.
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.
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
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.
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.
∏ 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.
∏ 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.