LA Code of Civil Procedure Flashcards
How many Justices does the LA Supreme Court have?
The state’s high court is composed of seven justices (one chief justice and six associate justices), one elected from each of the seven Supreme Court districts in Louisiana.
What is the LA Supreme Court’s jurisdiction?
(a) The Court has exclusive original jurisdiction over disciplinary proceedings against attorneys.
(b) Under the Supreme Court’s appellate jurisdiction, rulings are directly appealable as of right where:
(1) where the law has been found unconstitutional
(2) in a criminal case in which a person has been sentenced to death
(3) The Supreme Court may also exercise its discretion to hear appeals of all other civil actions properly before it.
The Court’s scope of review extends to
1) law and facts in civil appeals cases, and
2) questions of law only in criminal appeals.
How many courts of appeals are there in LA?
Five, called circuit courts
How many judges does each circuit court have?
Between 8 and 13, though a panel of only three is required to hear a case.
(a) Each court of appeal has supervisory jurisdiction over lower cases arising in its circuit.
(b) Circuit courts may hear appeals from:
1) all civil matters;
2) all matters appealed from family and juvenile courts; and
3) all criminal cases triable by a jury (except those resulting in the imposition of the death penalty, which are appealed directly to the Supreme Court).
The scope of the circuit courts extend to
civil cases (law and fact) criminal cases (fact only)
District courts generally have appellate jurisdiction over
(a) justice of the peace courts in parishes where no parish court exists; and
(b) criminal cases tried by city, municipal, traffic, and mayor’s courts.
City courts have civil jurisdiction within their territorial limits concurrent with the district courts where the amount in dispute, or the value of the property involved, does not exceed
$15,000
Some city courts have established small claims divisions, providing relaxed procedures for claims not exceeding
$5,000
City court appeals are taken to
the court of appeals, not the district court
The civil jurisdiction of parish courts is generally concurrent with district courts in cases involving up to
$20,000
Cases tried by parish courts are appealed to
the court of appeals
Justice of the peace courts have original civil jurisdiction concurrent with the district courts in cases involving up to
$5,000 in dispute
Justices of the peace may also hear suits by landowners or lessors for the eviction of occupants or tenants of leased residential and commercial premises, regardless of
The amount in controversy/rent due
Proper service of process is required for most civil actions to proceed, unless
written waiver is issued by the person entitled to service
A long arm statute grants a state the authority to exercise
personal jurisdiction over a nonresident defendant based upon his contacts with the forum state.
Louisiana’s long-arm statute grants state courts specific personal jurisdiction over any nonresident defendant, acting directly or by an agent, as to a cause of action arising from any of the following activities performed by the nonresident:
(1) transacting any business in the state;
(2) contracted to supply services or products to the state
(3) causing injury or damage by an offense or quasi offense through an act or omission in the state (or outside the state if the person regularly does or solicits business, engages in a persistent course of conduct, or derives revenue from goods used or consumed or services rendered in Louisiana);
(4) quasi in rem jurisdiction (in state property)
(5) failing to support a child, parent, spouse, or former spouse domiciled in Louisiana to whom an obligation of support is owed and with whom the nonresident formerly resided in the state;
(6) failing to parent a child born or domiciled in the state
(7) manufacturing a product which caused damage or injury in Louisiana, if at the time of placing the product into the stream of commerce, the manufacturer could have reasonably foreseen that the product may eventually be found in the state.
Additionally, the Louisiana statute grants state courts the authority to exercise general personal jurisdiction over nonresidents “on any basis consistent with the constitution of this state and of the Constitution of the United States.”
In order to satisfy the federal due process requirements of the Fourteenth Amendment, the defendant must have:
(i) received notice of the suit, and (ii) established sufficient minimum contacts with the forum state.
If a party’s contacts with the forum state are substantial or pervasive, the court may exercise
“general” jurisdiction over that party
If a party’s contacts with the forum state involve a single act or are systematic and continuous, the court may exercise
“specific” jurisdiction over that party, limited to contract pertaining to the facts of the claim
For a party to establish a minimum contact, it must
“purposefully avail” itself to the privilege of conducting activities within the forum state.
Factors: Courts consider the following five factors when determining whether it is fair to require the defendant to litigate in the forum state:
1) the burden on the defendant;
2) the interests of the forum state;
3) the plaintiff’s interests in obtaining relief;
4) the interstate judicial system’s interest in efficiency; and
5) shared policy interests of the states.
In rem jurisdiction occurs where
there is property in the case, and the purpose of the case is to adjudicate the rights of the property within the state. This will satisfy minimum contacts (specific jurisdiction).
Quasi-in rem jurisdiction
occurs where adjudicative rights between the parties, based on there being property in the state; you still need to establish minimum contacts.
Louisiana courts are also authorized to exercise jurisdiction over certain cases based upon
the type of claim asserted or proceeding being undertaken.
The following types of cases or proceedings are subject to the jurisdiction of Louisiana courts:
a. an adoption proceeding, if:
(1) the surrendering parent or adoptive parent has been domiciled in the state for at least eight months; or the child is in the custody of the Department of Children and Family Services; or
(2) if the adoption is of an adult, as long as either party is domiciled in LA, the case can go forward.
b. an emancipation proceeding, if the minor is domiciled in the state;
c. an interdiction proceeding, if the person sought to be interdicted is domiciled in LA or physically present AND has property in the state.
d. a tutorship or curatorship proceeding, if the minor, interdict, or absentee is domiciled in the state or has property therein;
e. a proceeding to obtain the legal custody of a minor, if he is domiciled, or found, in the state;
f. an action to annul a marriage, if one or both parties are domiciled in LA
g. an action of divorce, if, at the time of filing, one or both of the spouses are domiciled in the state; and
h. an action to establish parentage and support, or to disavow parentage, if the child:
(1) is domiciled or found in the state; and
(2) was either born in Louisiana, born out of state while its mother was domiciled in Louisiana, or acknowledged in the state.
In most cases, venue is the defendant’s privilege, and an objection to venue will be waived if
the defendant fails to raise the issue.
(Venue) against an individual who is domiciled in the state must be brought
in the parish in which the person resides
(Venue) against a domestic corporation, insurer, or LLC must be brought:
in the parish where the registered office is located
(Venue) against a domestic partnership or unincorporated association must be brought:
principle place of business
(Venue) against a foreign corporation or LLC licensed to do business in Louisiana must be brought in
the parish where its principal business establishment is located as designated in its application to do business in the state, or, if no such designation is made, then in the parish where its primary place of business is located;
(Venue) against a foreign corporation or LLC not licensed to do business in Louisiana, or a nonresident who has not lawfully appointed an agent for service of process (other than a foreign or alien insurer), must be brought
place of P’s domicile or any parish where the D is subject to personal jurisdiction
(Venue) against a nonresident (other than a foreign corporation or a foreign or alien insurer) who has lawfully appointed an agent for service of process must be brought
in the parish of the agent’s designated post office
(Venue) against a foreign or alien insurer must be brought
in East Baton Rouge Parish
(Venue) If a defendant has recently changed his parish of domicile
An action brought against an individual who has changed his domicile from one parish to another may be brought in either parish for a period of one year from the date of the change, unless he has lawfully filed a declaration of intention to change his domicile
(Venue) A tort action may be brought in the parish where:
(1) the defendant is domiciled;
(2) the wrongful conduct occurred; or
(3) the damages were sustained.
(Venue) An action for annulment of marriage or divorce may be brought in the parish:
(1) where either party is domiciled; or
(2) in the parish of marital domicile
(Venue) An action on a contract may be brought in the parish where:
(1) the contract was executed; or
(2) any work or service was performed, or was to be performed, under the terms of the contract
(Venue) An action on a life insurance policy may be brought in the parish where:
(1) the deceased died;
(2) the deceased was domiciled; or
(3) where any one beneficiary is domiciled
(Venue) An action on an insurance policy other than life insurance may be brought in the parish where:
(1) the insured is domiciled; or
(2) the accident, illness, or loss occurred
(Venue) Actions involving real property must be brought
(1) in the parish where the defendant is domiciled; or
(2) in any parish in which the real property is situated.
Where jurisdiction over a nonresident defendant has been attained pursuant to the state’s long-arm statute, venue is proper in the parish
(a) where the plaintiff is domiciled; or
(b) in any other parish in which venue may be proper
An action brought against the state of Louisiana, a state agency, or any of its officers or employees for conduct arising out of the discharge of official duties must be brought in the district court:
Baton Rouge or the parish in which the cause of action arose
(Venue) Class is Plaintiff: An action brought on behalf of a class must be brought
based on the defendant - wherever s/he can be sued
(Venue) Class is Defendant: An action brought against a class must be brought
where any named defendant in the class can be sued
An action brought in a proper venue may be transferred to another venue if the party making a motion for transfer proves that he cannot obtain a fair and impartial trial because of
(1) the undue influence of an adverse party;
(2) prejudice existing in the public mind; or
(3) some other sufficient cause
If the motion is granted, the case will be transferred to a parish where none of the parties are domiciled.
If an action has been brought in an improper venue, the court may:
dismiss the action or in the interest of justice, send the case to the proper venue
Forum Non Conveniens
a. For the convenience of the parties and the witnesses, and in the interest of justice, a district court may transfer a civil case to another district court where the suit might have been brought.
b. However, if the plaintiff brought suit in a court of competent jurisdiction and proper venue in the parish in which he is domiciled, the suit cannot be transferred via the doctrine of forum non conveniens
As a general rule, who has capacity to sue and be sued?
competent adults and emancipated minors
May an agent bring suit on behalf of his principle?
Yes.
A party may only bring an action as a plaintiff to enforce an interest in litigation upon the accrual of the right to enforce an obligation. That is:
a. the plaintiff must have standing,
b. the action must not be moot, and
c. the action must be ripe for litigation
Upon a person’s death, his right to enforce an obligation is generally transmitted with his estate to his heirs or legatees.
a. Likewise, an action to enforce the obligation of a deceased person may be brought against the heirs or legatees who have accepted his succession.
EXCEPT
A party’s death does not abate the action unless the action is to enforce a right or obligation that is strictly personal.
A plaintiff may cumulate against the same defendant two or more claims, regardless of the grounds, if
a. each claim is within the court’s jurisdiction and is brought in the proper venue; and
b. all claims are mutually consistent and employ the same form of procedure.
EXCEPTION: Plaintiffs may not cumulate petitory and possessory actions in the same suit.
Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if
a. each claim is within the court’s jurisdiction and is brought in the proper venue; and
b. all claims are mutually consistent and employ the same form of procedure.
c. the parties joined share a common interest.
A person must be joined as a party in the action when
they are needed to provide complete relief and s/he claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(1) as a practical matter, impair or impede his ability to protect that interest; or it will leave the parties currently in the case open to multiple litigation
If a person subject to compulsory joinder cannot be made a party, the court may, in its discretion, proceed among the existing parties or dismiss the action. Factors that the court will consider include
a. the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
b. the extent to which any prejudice could be lessened or avoided by protective provisions in the judgment, shaping of the relief, or other measures;
c. whether judgment without this party would be adequate;
d. whether the plaintiff would be deprived of an adequate remedy if the action were dismissed for nonjoinder.
When two or more suits are pending in a Louisiana court or courts, between the same parties and based on the same transaction or occurrence:
the court can dismiss all the actions, other than the first filed (assuming the others are being brought in a non-federal, Louisiana court).
When a suit is brought in a Louisiana court while another suit between the same parties and based on the same transaction or occurrence is pending in the court of another state or in federal court, the Louisiana court may
stay its own proceeding
An action is considered to be abandoned when
no action has been taken for three years (by either party)
No formal order is necessary to effectuate dismissal of the action based on abandonment, but the trial court will enter a formal order of dismissal as of the date of its abandonment upon motion by any party, or affidavit by another interested party.
A motion to set aside a dismissal may be made within 30 days of the notice of dismissal.
The filing of a class action requires that the following elements be met:
numerous parties
commonality
claims or defenses of named parties are typical of the proposed class
the named parties will accurately represent the class
the class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class in order to conclusively render judgment.
A class action may only be commenced if it falls within one of the following categories:
a. where the prosecution of separate actions by or against individual members of the class would create a risk of:
(1) inconsistent or varying judgments with respect to individual members of the class; or
(2) individual adjudications by or against class members which would be dispositive of the interests of the other non-party members, or substantially impair or impede their ability to protect their interests;
b. where the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final injunctive or declaratory relief appropriate with respect to the class as a whole;
c. where the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy; or
d. where the parties to a settlement request certification.
A motion to certify a class must be made
a. within 90 days of service of the complaint
b. If the court finds that the action should be maintained as a class action, it will certify the action accordingly. Otherwise, the court will direct that the action continue between the named parties.
c. If a class action is certified and maintained, the court will direct to the members of the class “the best notice practicable under the circumstances.”
before a class action can be dismissed or settled
there must be court approval
A definitive judgment on the merits rendered in a class action concludes all members of the class, whether they joined in the action or not, so long as
their interests were adequately represented.
may a derivative suit be maintained as a class action?
Yes.
Proper petitions in derivative actions must:
a. include an allegation that the plaintiff was a shareholder, partner, or member at the time of the occurrence or transaction of which he complains;
b. include a specific allegation regarding:
(1) the efforts of the plaintiff to secure from the managing directors, governors, or trustees the enforcement of the right; and
(2) the reasons for his failure to secure such enforcement or for not making such an effort;
c. join as defendants the entity and the obligor against whom the obligation is sought to be enforced;
d. include a prayer for judgment in favor of the entity and against the obligor; and
e. must be signed and verified by signed affidavit by plaintiffs or counsel (like all lawsuits)
A civil action is commenced by
filing a pleading presenting the demand to a court of competent jurisdiction.
After the plaintiff files the pleading, the court will then issue a citation, which must then be served on the defendant or defendants, along with a copy of the petition, within (including exceptions):
90 days
EXCEPTION: Service of a citation is not necessary for cases to proceed under:
(1) summary or executory proceedings,
(2) certain divorce actions, or
(3) proceedings under the Children’s Code.
Personal Service
Personal service is accomplished by tendering process (citation and petition together are collectively called “process”) to the person being served.
Domiciliary Service:
Domiciliary service is accomplished by leaving process at the person’s dwelling house or usual place of abode with a person of suitable age and discretion residing therein.
Registered/Certified Mail
When a court’s personal jurisdiction over a defendant has come by way of the state’s long arm statute, service of process may be made by registered or certified mail.
Service is also proper, via personal or domiciliary service, when
made upon a person who is represented by another by court appointment, operation of law, or mandate.
The secretary of state is impliedly authorized to act as an agent for service of process upon
(a) nonresidents operating motor vehicles on state highways; and
(b) nonresidents operating watercraft on state waterways.
Service of process on a partnership is made by:
serving any one of the partners
To serve a partnership, if the person attempting to serve certifies that he is unable, after diligent effort, to make service by serving any one of the partners, he may
serve an employee of the partnership wherever the partnership business is conducted, but the person served must be of suitable age
Service of process on a corporation is made by:
Serving an agent designated to receive service
If the corporation does not have a registered agent, or if the person attempting to serve certifies that he is unable, after due diligence, to serve the designated agent, service may be made by any of the following methods
(1) serving any corporate officer or director personally
(2) by personal service on any employee of suitable age and discretion where corporate business is regularly conducted; or
(3) in the case of an out-of-state corporate defendant: by registered or certified mail, or by actual delivery by commercial courier.
c. If the person attempting to serve certifies that he is unable, after diligent effort, to have service made under any of the above provisions, then service may be made personally on the secretary of state.
Service of process on an LLC is made by
any agent designated to receive service
If the LLC does not have a registered agent, or if the person attempting to serve certifies that he is unable, after due diligence, to serve the designated agent, service may be made by any of the following methods
(1) by personal service on:
(a) a manager of the LLC
(b) if management is not vested in managers, then on any member;
(2) by personal service on any employee of suitable age and discretion where corporate business is regularly conducted; or
(3) in the case of an out-of-state corporate defendant, by registered or certified mail, or by actual delivery by commercial courier.
c. If the person attempting to serve certifies that he is unable, after diligent effort, to have service made under any of the above provisions, then service may be made personally on the secretary of state.
Service of process on an unincorporated association is made by
personally serving any of its agents designated to receive service of process.
b. If no such agent has been appointed, or if all such agents are absent, then service may be made upon a managing official, at any place where the association’s business is regularly conducted.
c. In the absence of all officials from the place where business is regularly conducted, process may be served personally upon any member of the association.
Service of process on a political subdivision or other public entity may be made
at its office by personally serving the chief executive officer, or in his absence, any employee of suitable age and discretion.
Service of process on a public officer, sued as such, may be made at his office either personally, or in his absence, by serving any of his employees of suitable age and discretion.
c. If the political entity or public officer has no established office, then service may be made at any place where the chief executive officer of the political entity or the public officer may be found.
For a suit whereby a Louisiana court has attained person jurisdiction over an out-of-state defendant pursuant to the state long arm statute, service may be made by
registered or certified mail, or by actual delivery by commercial courier.
If service cannot be made via any of these methods, then service may be made on an attorney appointed by the court to represent the defendant.
Service on a foreign corporation made through the secretary of state may be made in person anywhere in the state. If the secretary is absent from his office, service may be made on
the assistant secretary of state or on another individual in the office designated to receive service of process.
Service upon the secretary of state as an agent for nonresident motor vehicle operators can be made via
registered or certified mail, or by actual delivery to the defendant.
When serving process on the secretary of state as an agent for nonresident watercraft operators, the plaintiff must also send notice to the defendant, via
registered mail or personal delivery, along with a copy of the citation and petition.
Personal service is ordinarily accomplished by the sheriff of the parish where:
(1) service is to be made; or
(2) the action is pending.
After the sheriff executes service of process, the sheriff must
sign a return of service (this is how litigants prove service of process)
If the sheriff has in interest in the suit, is otherwise disqualified by law from serving process, or the if the parish is without a sheriff, service may be made by
any regular constable of the parish, or by any officer appointed by the court.
If the sheriff has not made service within ten days after receipt of the process, or if the sheriff has been unable to make service, the court will appoint another person to serve process who is:
the age of the majority
not a party to the case
Louisiana resident
Where can process be made in an action or proceeding brought in a parish that is not the defendant’s domicile?
a. process may be served in the parish where the action or proceeding was brought, if the defendant can be served therein; or
b. the clerk of court can send process to whatever parish in which the defendant can be found
When an action or proceeding is brought in the parish that is the defendant’s domicile and he cannot be found there, service may be made on him in:
anywhere you can find him
Pleadings subsequent to the original petition may be served by the sheriff or by:
a. mailing a copy to the party’s attorney, or if there is no counsel of record, to the adverse party at his last known address;
b. delivering a copy to the party’s attorney, or if there is no counsel of record, to the adverse party;
c. if there is no counsel of record and the address of the adverse party is not known, delivering a copy to the court clerk; or
d. transmitting a copy by electronic means to the party’s attorney, or if there is no counsel of record, to the adverse party.
When service is made by mail, delivery, or electronic means, the party making the service must
certify the manner in which service was made.
If a pleading or order sets a court date, then service must be made by
actual delivery, delivery by the sheriff, or by registered, certified mail
Pleadings in civil actions must be
in writing, and consist of petitions, exceptions, written motions, and answers.
The Pleading must contain a caption setting forth
a. the type of pleading;
b. the name of the court; and
c. the title and number of the action.
Although no technical forms of pleading are required, all allegations of fact should be set forth in
numbered paragraphs and be simple, concise, and direct
a. Each pleading by a represented party must be signed by his attorney; unrepresented parties must sign their own pleadings.
b. An attorney’s or party’s signature certifies that he has read the pleading, and that to the best of his knowledge
(1) the pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) each claim, defense, or other legal assertion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law;
(3) each allegation or other factual assertion has evidentiary support, or is likely to have evidentiary support after a reasonable opportunity for further investigation; and
(4) each denial of a factual assertion is warranted by the evidence, or is reasonably based on a lack of information or belief.
Process consists of the citation and the petition.
a. The citation functions as the official cover letter.
b. The petition contains the allegations made.
The citation must contain the following
a. the date of issuance
b. the title of the action
c. name to whom the citation is addressed
d. the title and name of the court issuing the citation
e. a statement that the person cited must either comply with the demand contained in the petition or make an appearance (e.g., by filing a pleading) within 15 days under penalty of default.
The petition must conform to the following requirements
a. set forth the name, surname, and domicile of the parties;
b. short, clear, and concise statement of each cause of action;
c. designate a physical address for receipt of service of all items involving the litigation; and
d. conclude with a prayer for judgment for the relief sought.
What must be specifically alleged (with particularity)?
Circumstances constituting fraud or mistake;
Malice, intent, knowledge, and other conditions of mind;
Items of special damage
With limited exceptions, the prayer for relief may not contain
a specific amount of monetary damages, but must be for only such damages as are reasonable in the premises.
(1) A general allegation that the claim exceeds some requisite amount is permitted where a specific amount of damages is necessary to establish a court’s jurisdiction or for other purposes.
EXCEPTION: This prohibition does not apply to a suit on a conventional obligation, promissory note, open account, or other negotiable instrument, for alimony or child support, on a tax claim, or in a garnishment proceeding.
After being served with process, the defendant’s must file his answer within
15 days
The answer must contain the following
- admission or denial of all the allegations
- state in general terms the facts upon which your defenses are based
- assert any affirmative defenses – otherwise they’re waived
- some prayer for relief
All allegations made in the petition, other than those as to the amount of damages, are admitted if not denied in the answer.
(1) The defendant may state that he is “without knowledge or information sufficient to justify a belief as to the truth of an allegation of fact” made in the petition, which has the same effect as a denial.
Affirmative defenses not raised in the answer are deemed to have been waived. Such defenses include:
(1) affirmative negligence, or fault of the plaintiff and others;
(2) duress;
(3) error or mistake;
(4) estoppel;
(5) extinguishment of the obligation;
(6) failure of consideration;
(7) fraud;
(8) illegality;
(9) injury by fellow servant; and
(10) any other matter constituting an affirmative defense.
May an answer set forth two or more defenses in the alternative, even though the factual or legal bases of which may be inconsistent or mutually exclusive?
Yes.
Declinatory Exception
This exception is used to challenge the court’s jurisdiction
The defendant may object to the following through the declinatory exception
(a) insufficiency of citation;
(b) insufficient service of process;
(c) lis pendens;
(d) improper venue;
(e) a court’s lack of personal jurisdiction; or
(f) a court’s lack of subject matter jurisdiction.
All declinatory objections are waived if not asserted in the defendant’s answer or in a pre-answer pleading, except for
except for lack of subject matter jurisdiction
Dilatory Exception
This exception serves to delay the progress of the action.
The defendant may object to the following through the dilatory exception:
(a) prematurity;
(b) want of amicable demand;
(c) unauthorized use of summary proceeding;
(d) nonconformity of the petition with the required formalities;
(e) vagueness or ambiguity of the petition;
(f) lack of procedural capacity;
(g) improper cumulation of actions (including improper joinder of parties); or
(h) discussion.
All dilatory exception are waived if not asserted in
the defendant’s answer or in a pre-answer pleading
When both the declinatory and dilatory exceptions are pleaded, they must be filed
at the same time, and may be incorporated in the same pleading.
Peremptory Exception
This exception serves to dismiss or defeat the plaintiff’s action by having it declared legally nonexistent or barred by effect of law
The defendant may object to the following through the peremptory exception
(a) prescription;
(b) redemption;
(c) res judicata;
(d) nonjoinder of an indispensable party;
(e) no cause of action;
(f) no right of action, or no interest in the plaintiff to institute the suit; or
(g) discharge in bankruptcy.
When can a defendant plead the peremptory exception?
A defendant may plead the peremptory exception at any stage of the proceeding prior to submission of the case for a decision.
Incidental demands are those
instituted incidental to the principal demand against an adverse party, co-party, or third person. They include reconvention, cross claims, intervention, and third party demands
An incidental demand is commenced by
filing a petition, which must conform to the same formalities required of a petition filed when commencing a suit.
An incidental demand may be filed without leave of the court at any time up to and including the time
the answer to the principal demand is filed
An incidental demand may be filed after the defendant’s answer, with leave of the court, if:
(1) it will not delay the progress of the principal action;
(2) the action matured, or was acquired by the defendant in the principal action, after the answer was presented; or
(3) a third person claims an interest in property seized pursuant to the principal action and seeks to assert his claim by intervention.
A court will have jurisdiction over an incidental demand only if
it would have had jurisdiction over that demand had it been instituted in a separate suit.
Where venue is proper as to the principal demand, it will be proper as to
any incidental demand
What effect does a plaintiff’s dismissal of the principal demand on any incidental demands?
Generally, no.
What is a reconventional demand?
A counterclaim
A defendant may assert in a reconventional demand for
any causes of action that he may have against the plaintiff in the principal action.
All causes of action that the defendant may have against the plaintiff arising out of the transaction or occurrence that is the subject matter of the principal action must be asserted in a
reconventional demand, else the defendant will be precluded from bringing them in a separate action.
Whether the petition in reconvention is incorporated in the defendant’s answer to the principal action or filed separately, it must be
served in the same manner as any other petition asserting a claim, although no citation need be served on the original plaintiff.
A party may assert as a cross claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of:
(a) the original action; or
(b) a reconventional demand.
The petition in a cross claim must be served on the co-party in what manner?
the same manner as any other petition asserting a claim, although no citation is necessary.
A third person may intervene in a pending action to
enforce a right related to or connected with the object of the pending action.
A petition for intervention must be served on all parties in the same manner as any other petition asserting a claim, although no citation is necessary.
An intervener may
(a) join with the plaintiff in demanding the same or similar relief against the defendant;
(b) unite with the defendant in resisting the plaintiff’s demand; or
(c) oppose both the plaintiff and the defendant
A defendant seeking contribution or indemnity may implead new parties who may be liable to the defendant for all or part of any judgment the plaintiff obtains on the principal demand.
Thereafter, what may a plaintiff or third party do?
(a) The original plaintiff may then assert any claim against the third party arising out of or connected with the principal demand.
(b) The third party may reconvene against the plaintiff or the defendant in the principal action on any demand arising out of or connected with the principal demand.
A party who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right against such person, unless the third person proves that the party had means of defeating the action which were not used, because he
(a) either failed to implead the third person as a third party defendant; or
(b) neglected to apprise the third person that the suit had been brought.
A plaintiff may amend his petition without leave of the court
until the defendant files an answer
A defendant may amend his answer
once, without leave of the court, within 10 days of service
The petition and answer may only be amended after the within 10 days of service window has closed by
leave of the court or by written consent of the adverse party.
A defendant may amend his declinatory or dilatory exceptions
at any time prior to trial with leave from the court
thereafter, with written consent of the opposing party.
A defendant may amend his peremptory exception
at any time without leave of the court
Amendments relate back to
the date of filing the original pleading
The court may permit a supplemental petition or answer to be filed setting forth items of damage, causes of action, or defenses which
arose after the date of filing the original pleading, and which are related to or connected with the causes of action or defenses asserted therein.
A person can petition the court to be designated as in forma pauperis if he can establish that
he doesn’t have the funds to pursue the normal costs of litigation. This can be done in a separate motion or in the main petition. It must include an affidavit from the party making the motion and a third person stating that this person can’t pay court costs. If the court grants the request, the in forma pauperis designated party won’t have to prepay the costs. If he wins the case, he won’t have to pay the costs; if he loses, there will be a judgment against him for the costs.
Generally, the scope of discovery is
anything that is relevant that is not privileged
Must the things sought through discovery be admissible at trial?
The information sought need not be admissible at trial, but only reasonably calculated to lead to the discovery of admissible evidence.
Are insurance agreements discoverable?
Yes.
A party may request that the adverse party identify each expert witness expected to testify at trial, as well as
the facts and opinions held by each experts
Upon motion, the expert witness must provide a written report detailing
his opinions regarding the matter, including the basis and reasons for such opinions.
(1) Unless the court sets a different time, the report must be made at least 90 days prior to trial; or 30 days if the evidence is intended solely to rebut the testimony of another expert witness on the same subject matter.
Generally, facts and opinions held by experts who are retained by a party but are not expected to testify fall under
the protection of the work product doctrine and are not discoverable absent exceptional circumstances.
What is work product
any written or electronicaly stored documents/communications that are prepared by the attorney or the party involved in the litigation for the purposes of and in anticipation of litigation; opinions, conclusions, strategies, etc. are covered.
A party withholding Information under the work product doctrine must make such claim
expressly and describe the nature of the withheld documents, communications, and other privileged material so as to enable other parties to assess the applicability of the privilege.
The court may issue an order prohibiting or limiting discovery, as justice requires, to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.
Each request for discovery, or response or objection thereto, by a represented party must be:
signed and verified
The signature of a party or his attorney certifies that he has read the request, response, or objection, and that to the best of his knowledge it is
(1) consistent with the rules of discovery and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(2) not interposed for any improper purpose, such as to harass or to cause unnecessary increase in the cost of litigation; and
(3) not unreasonable, unduly burdensome, or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.
A party who has responded to a discovery request with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except where:
(1) the question directly addressed the identity and location of:
(a) a person having knowledge of discoverable matters; or
(b) an expert witness expected to testify at trial, or the substance of his testimony;
(2) the responding party obtains information revealing to him that his previous response was incorrect or misleading; or
(3) the court so orders or the parties agree.
If a party or non-party deponent fails to comply with a discovery request, the requesting party, upon reasonable notice to other parties and all persons affected, may
make a motion for the court to compel discovery.
If the motion is granted, the court will compel the noncompliant party or person to comply with the discovery request, and may assess costs and attorneys’ fees, payable to the moving party.
The following methods of discovery are permissible
depositions;
interrogatories;
requests for the production of documents;
permission to enter upon property for inspection;
physical and mental examinations;
requests for the release of medical records; and
requests for admission.
Is the frequency of use of discovery methods limited?
No, unless the court orders otherwise
Methods of deposing a party or other person include
(1) oral examination;
(2) by telephone or other electronic means, if all parties agree or the court so orders; and
(3) written questions administered by the officer
All depositions must be taken before an
officer authorized to administer oaths
(1) A party may object when a deposition is being conducted in an irregular manner.
(a) If the error or irregularity can be corrected, a party who fails to object at that time waives his right to object at to such error or irregularity at any time thereafter.
(b) If the error or irregularity cannot be corrected at the time of the taking of the deposition, a party who fails to object at that time may still raise his objection when the deposition testimony is sought to be introduced as evidence at trial.
All objections must be noted in the transcript, and the witness must ordinarily answer subject to the objection, except
When an objection is based on the contention that the information sought is protected or privileged, the witness need not answer unless ordered by the court.
Deposition testimony may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice thereof, in accordance with the following provisions:
(a) any deposition may be used by any party to contradict or impeach the testimony of the deponent as a witness;
(b) the deposition of an officer or director of a business entity or government agency which is a party in the suit can be used by the adverse party for any purpose
(c) if only part of a deposition is offered as evidence, an adverse party may require any other part to be introduced which, in fairness, should be considered with the part offered; and
(d) the deposition of an expert witness may be used for any purpose upon ten days’ notice to all parties.
Written interrogatories cannot exceed
35 in number
Parties must answer or object within
15 days of service, except that defendants have at least 30 days after service of the petition to respond.
A party may serve on any other party a request to produce documents or electronically stored information for the purpose of
inspecting, copying, testing, and sampling
A party may request permission from any other party to enter upon designated land or other property in order to
inspect, measure, survey, photograph, test, or sample the property
Parties served with a Requests for Production and Inspection must respond within
15 days, unless it’s been less than 30 days since the petition had been filed
When the mental or physical condition of a party is in controversy, the court may order the party to submit to
a physical or mental examination by a physician
when the mental or physical condition of a person in the custody or under the legal control of a party is in controversy, the court may order the party to
produce for examination the person in his custody or legal control.
When the court orders that a person submit to a medical examination, the order must
specify the time, place, manner, conditions, examiner, and scope of the examination
The party against whom an order to submit to a medical examination is made or the person examined may
request a copy of a detailed written report of the examining physician setting out his findings.
As a result, the party examined waives any privilege he may have in that action regarding the testimony of every other person who has examined or may thereafter examine him with respect to the mental or physical condition in question.
A party may request another party whose medical records are relevant to an issue in the case to authorize his health care provider to
release his medical records to the requesting party
The party upon whom the Requests for Release of Medical Records is made must respond within
15 days
The party requesting the medical records must provide to the party whose medical records are being sought a copy of all documents obtained within
7 days of receipt.
Any party may serve upon another party a request to admit in the record that:
(1) a relevant fact is true; or
(2) a particular document is genuine.
Requests for admission of fact are deemed conclusively proved to be true, and documents conclusively proved to be genuine, if
no response is given by the party upon whom the request is served within 15 days.
A district court may order a pretrial conference to consider any of the following
a. simplification of the issues;
b. amendments to the pleadings;
c. which material facts and issues are actually and in good faith controverted;
d. proof and the admissibility of evidence;
e. limitations on the use of expert testimony;
f. the control and scheduling of discovery;
g. claims of privilege or protection of trial preparation material;
h. the identification of witnesses, documents, and exhibits;
i. the use of electronic devices to present testimony; and
j. any other matters that may aid in the disposition of the action.
Motion to Strike
either by motion or sue sponte, the court can strike certain evidence or testimony
A party may move for judgment on the pleadings when
there is no reason to bring the case before the jury because the moving party is entitled to judgment as a matter of law
When ruling on a motion for judgment on the pleadings, the court considers to be true all factual allegations
(a) in the non-moving party’s pleadings; and
(b) in the moving party’s pleadings that have not been denied by the adverse party.
A party may move for a judgment on the pleadings at any time after
the answer is filed, but within such time as not to delay the trial.
The moving party cannot appeal the court’s decision to refuse the motion.
A party may make a motion for the court to declare summary judgment on the moving party’s behalf if
there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law; the court may look at things beyond the pleadings.
The moving party on a motion for summary judgment bears the burden of proving that
it is entitled to it
If the moving party on a motion for summary judgment will not bear the burden of proof at trial, his motion may be granted if he demonstrates that
there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The adverse party will then be given an opportunity to demonstrate adequate factual support.
Timing on a motion for summary judgment, plaintiff’s motion
may be filed once the answer has been filed
Timing on a motion for summary judgment, defendant’s motion
may be made at any time
may the moving party appeal the court’s denial of its motion for summary judgment?
NO.
At any time prior to 20 days before trial, a party may serve upon an adverse party an
offer of judgment for the purpose of settling all of the claims between them.
The offer does not act as an admission of liability.
If the adverse party accepts the offer of judgment
it must accept within ten days; thereafter, either party may move for judgment on the offer
If the offer to settle is not accepted and the final judgment obtained by the plaintiff-offeree is at least 25% less than the amount of the offer made by the defendant-offeror, or if the final judgment obtained against the defendant-offeree is at least 25% more than the amount of the offer made by the plaintiff-offeror, the offeree must pay
the costs of litigation, excluding attorney’s fees, incurred between now and the time the offer was made.
Louisiana recognizes the right of trial by jury, except as follows
- where no individual’s claim exceeds $50,000
- a suit on an unconditional obligation to pay a specific sum of money;
EXCEPTION: If the defense is forgery, fraud, error, want, or failure of consideration, the right to a jury trial exists. - a summary, executory, probate, partition, mandamus, habeas corpus, quo warranto, injunction, concursus, workers’ compensation, emancipation, tutorship, interdiction, curatorship, filiation, annulment of marriage, or divorce proceeding;
- a proceeding to determine custody, visitation, alimony, or child support;
- administrative review (review of an administrative proceeding);
- all cases where a jury trial is specifically denied by law
A party may obtain a jury trial by filing a pleading with the jury demand and posting a bond within
ten days following the last pleading directed to any issue triable by a jury.
Preemptory challenges available to each side when there are six jurors
3
(1) If there is more than one party on any side, the court may allow each side up to two additional challenges.
Preemptory challenges available to each side when there are twelve jurors
6
(1) If there is more than one party on any side, the court may allow each side up to four additional challenges.
A prospective juror may be challenged for cause if he
a. lacks legal qualification to serve;
b. cannot exercise impartiality due to a material bias in the case;
c. has a relationship with a party or party’s attorney that would influence his decision in the case;
d. served on the jury in an earlier case between the two parties (there was a mistrial or something);
e. the person refuses to answer a question during voir dire because s/he feels s/he might incriminate him/herself
Peremptory challenges are not permitted after
the entire jury has been accepted and sworn; challenges for cause may be made up to the beginning of the taking of evidence.
a court may permit a continuance if there is
“good grounds” for it
The court will permit a continuance on peremptory grounds if a party shows that:
it is unable with due diligence to obtain evidence relevant to the case
a material witness is absent, and the party needs more time to ensure they become available.
NOTE: If the adverse party contests the request for continuance on the ground that a material witness is absent, the party seeking a continuance must disclose what facts he intends to prove by that witness. If the adverse party admits that if the witness were present he would testify as stated in his affidavit, the trial shall proceed.
When two or more separate actions are pending in the same court, the court may order consolidation of the actions for trial if
- there are common questions of law and fact that predominate over questions that are different, and
- doing so is in the interest of justice
Consolidation will not be ordered if it would do any of the following
- it would confuse the jury
- because of the nature of the allegations, consolidation would prevent a fair/impartial trial
- consolidation would give a party an undue advantage
- prejudice the rights of the other party
Prior to trial and with the consent of all parties, the court may order separate trials on the issues of liability and damages, if separation would:
- simplify the case
- permit a more orderly handling of the case, or
- would be in the interest of justice
Formal exceptions to a judge’s rulings or orders are unnecessary so long as
the party, at the time of the ruling or order, makes known to the court the action which he desires the court to take, or his objection to the action of the court, and his grounds therefor.
a. If a party doesn’t have an opportunity to object to a ruling or order at the time it is made, the absence of an objection does not serve to prejudice him.
At the request of any party, the court may allow any excluded evidence to be offered, subject to cross-examination
a. on the record during a recess or other time set by the court; or
b. by deposition, within 30 days of the later of either the exclusion of the evidence or the trial’s completion.
When evidence is ruled inadmissible, the party offering it may
make a complete record of the evidence or a statement setting forth the nature of the evidence.
May the judge comment on the facts of the case in the jury’s presence?
No.
The judge may instruct the jury on the applicable law during the trial, and will do so in writing upon
the close of the trial and before deliberation
Jurors are permitted to take notes during the trial to be used during deliberation, but
such notes are not be preserved for review on appeal.
Jurors may examine any object or writing received in evidence, other than
depositions, during deliberation
After retiring for deliberation, the jury may request a review of certain evidence or clarification on any point of law. If the request is granted, review will be conducted
in the courtroom
The court, after giving notice to the parties, may recall the jury after they have retired
a. to correct or withdraw an erroneous instruction;
b. to clarify an ambiguous instruction;
c. to inform the jury on a point of law which should have been covered in the original instructions; or
d. to give any further instructions that may be appropriate.
Concurrence Required for Verdict, 6 juror trial
5 unanimous votes
Concurrence Required for Verdict, 12 juror trial
9 unanimous votes
A plaintiff can obtain a judgment to dismiss an action without prejudice at any time prior to
the defendant making an appearance of record.
After a defendant has made an appearance of record, the court may
refuse to grant the plaintiff’s request of dismissal except with prejudice.
The court may order an action dismissed if
any party doesn’t appear on the day set for trial
If both parties fail to appear due to a pending settlement, either party may reinstate the suit within 60 days should the settlement fall through.
In a nonjury trial, the defendant may move for dismissal after the plaintiff has completed his presentation of the evidence on the grounds that
upon the facts and the law, the plaintiff has shown no right to relief.
In a jury trial, either party may move for a directed verdict at the close of the evidence offered by the adverse party, on the grounds that
upon the facts and the law, the moving party is entitled to judgment
The moving party must state the specific grounds upon which his motion is based
Although the standard for granting a directed verdict is not statutorily defined, it is generally granted where:
no reasonable jury could find the other way, and the moving party is entitled to judgment as a matter of law
(1) Defendant’s motion: The defendant’s motion will be granted if he identifies the material facts that the plaintiff has failed to prove in meeting the burden of producing evidence.
(2) Plaintiff’s motion: A directed verdict will be issued in favor of the plaintiff if he has produced evidence from which reasonable minds could conclude, to the level of certainty required by the applicable burden of persuasion, the existence of each fact essential to his claim.
Together with a general verdict form, the court may submit to the jury written interrogatories pertaining to one or more issues of fact upon which the verdict was based.
If the general verdict and the answers are harmonious
the court will direct the entry of the appropriate judgment.
Together with a general verdict form, the court may submit to the jury written interrogatories pertaining to one or more issues of fact upon which the verdict was based.
If the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may
(1) direct the entry of judgment in accordance with the answers, notwithstanding the general verdict;
(2) remand the case back to the jury;
(3) order a new trial
Together with a general verdict form, the court may submit to the jury written interrogatories pertaining to one or more issues of fact upon which the verdict was based
If the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, the court will not direct the entry of judgment, but may:
(1) return the jury for further consideration of its answers; or
(2) order a new trial.
A judge MUST recuse himself from presiding over a cause where
a. the judge is a witness in the cause;
b. the judge has been employed or consulted as an attorney in the cause, or has previously been associated with an attorney during that attorney’s employment in the cause, and the judge participated in representation in the case;
c. a party or his attorney is an immediate family member of the judge; or
d. the judge is biased, prejudiced, or interested in the cause, or toward or against any party, party’s attorney, or witness to such an extent that he would be unable to conduct fair and impartial proceedings
A judge MAY be recused where
a. he has been associated with an attorney during that attorney’s employment in the cause;
b. an attorney in the cause is representing the judge in a different manner at the time of the hearing;
c. he has performed a judicial act in the cause in another court; or
d. he is related to a party or an attorney in the case.
When challenging a will, the party in opposition must
The party opposing the will must file an opposition, in writing, which states name and domicile, interest in filing, grounds for the opposition, and grounds for the invalidity of the will
Once a person properly challenges the validity of the will, the proponent must
The proponent of the will bears the burden of proving the authenticity of the will and its compliance with will formalities.
Default Judgment
When a party fails to appear, a judge will render a default judgment against the no-show party
Is the case over once a default judgment has been rendered?
No. A default judgment must be confirmed by proof of the demand sufficient to establish a prima facie case.
a. Confirmation of default judgment based on a defendant’s failure to timely file an answer may be made no less than two days after entry of default judgment.
The amount of damages awarded in a default judgment will be
the amount proven to be properly due as a remedy.
When can a default judgment be rendered?
No default judgment can be rendered against a defendant for failure to respond to the initial pleading until 30 days after the filing in the record that service of process was made.
Interlocutory Judgment
Adjudicates preliminary matters; judgments that do not dispose of the case (e.g. granting or denying change in venue)
Interlocutory judgments include, among others, those which
a. overrule an exception;
b. deny a motion to dismiss on the grounds of abandonment;
c. grant or deny the transfer of an action to a more convenient venue;
d. stay proceedings pending the outcome of another suit;
e. deny the confirmation of a preliminary default;
f. order a judgment notwithstanding the verdict; and
g. grant a new trial.
A party may seek review of an interlocutory judgment by an appellate court through
an application for a supervisory writ.
Although the statutes do not provide a standard for granting a supervisory writ, courts generally do so only where
the trial court judgment will cause the party irreparable injury.
In limited circumstances, a party may also seek review by directly appealing an interlocutory judgment, but only where
expressly provided by law.
EXAMPLE: As a matter of right, a party may appeal an order or judgment relating to a preliminary or final injunction.
How long after the verdict is given must a judge enter judgment
10 days of the jury verdict or 10 days after the conclusion of a nonjury trial, upon the request of any party, the judge will provide written findings of fact and reasons for judgment.
The court may render a partial final judgment in which it:
a. dismisses the suit as to less than all the parties;
b. grants a motion for judgment on the pleadings;
c. grants a motion for summary judgment, except those limited to a particular issue;
d. issues a judgment on either the principal or incidental demand, when the two have been tried separately;
e. issues a judgment solely on the question of liability when that issue has been tried separately by the court, or when, in a jury trial, questions of liability and damages are tried before different juries; or
f. imposes sanctions or disciplinary action.
When the court renders a partial judgment, or sustains an exception in part, as to less than all of the claims, demands, issues, or theories, it is considered a final judgment only if
the court expressly designated it as such after express determination that there is no just reason for delay.
Declaratory Judgment
judgment that adjudicates rights, even without damages. There is a legal dispute, but no damages have yet occurred.
A judgment notwithstanding the verdict is
a procedural device whereby the trial court may correct a legally erroneous verdict by modifying a jury’s finding of fault or damages, or both.
A court will grant a judgment notwithstanding the verdict only when
“the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict.”
Either party may move for a judgment notwithstanding the verdict within
seven days after notice of judgment, or discharge of the jury if no verdict was returned.
If the court has granted a judgment notwithstanding the verdict, and a jury verdict was returned, the court may
a. allow the judgment to stand;
b. alter the judgment; or
c. order a new trial.
If the court has granted a judgment notwithstanding the verdict, and no jury verdict was returned, the court may
render a judgment him/herself or order a new trial
Grounds for granting a new trial include
a. when the verdict or judgment is clearly contrary to the law and the evidence;
b. new evidence arises that couldn’t have been obtained by due diligence before the trial;
c. improper jury behavior
d. where other good grounds exist
In considering a motion for a new trial, the judge will
evaluate the evidence and assess the credibility of witnesses without favoring either party, and draw his own inferences and conclusions. In practice, a new trial is ordered only where “the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice.”
Either party may move for a new trial within
seven days after notice of judgment
A trial court’s discretion to grant or deny a motion for a new trial is broad, and will only be overturned upon
a clear showing of a judge’s abuse of discretion.
A motion for a new trial and a motion for a judgment notwithstanding the verdict may be made
simultaneously or in the alternative.
Remittitur and Additur, when available
Where the verdict is so excessive or inadequate that a new trial should be granted for that reason alone, a party may agree to an increase or reduction in the amount of damages as an alternative to undergoing the added time and expense of pursuing a new trial
Remittitur
occurs where the judge reduces an excessive damage award
Additur
occurs where a judge adds additional damages to an insufficient jury award
Remittitur and additur are only proper where the issue of the amount of damages is
separable from all other issues in the case
A final judgment will be declared null if it is rendered:
(1) by a court lacking subject matter jurisdiction;
(2) against an unrepresented, incompetent person; or
(3) against a defendant who was not lawfully served with process; and
(a) has not waived his objection to personal jurisdiction; or
(b) against whom a valid judgment by default has not been taken.
An action to annul a judgment on these grounds may be brought at any time.
EXCEPTION: A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of these grounds.
A final judgment will be declared null if it is has been obtained
(1) by fraud; or
(2) by ill practices.
b. An action to annul a judgment on these grounds may be brought within one year of the plaintiff’s discovery of such fraud or ill practices.
An action of nullity must be brought in
the trial court, regardless of whether the judgment was rendered or affirmed by an appellate court.
A judgment for the payment of money may be executed by a writ of fieri facias
a court orders/directs an officer to sieze and sell property owned by the judgment debtor
A writ of fieri facias may also be used to enforce garnishment where
property of the judgment debtor is under the control of a third party and subject to garnishment, including wage garnishment.
In aid of execution, the judgment creditor (the person who won) may examine
a. the judgment;
b. the judgment debtor’s books, papers, or documents, upon any matter relating to his property; or
c. any person upon any matter relating to the judgment debtor’s property
To ascertain whether the judgment debtor has any assets, the judgment creditor can
file a motion for examination of the judgment debtor in the court that issued the judgment. If the judgment debtor is a Louisiana domiciliary but doesn’t reside in the parish where the judgment was rendered or has changed domiciles, the motion may be filed in the parish where the judgment debtor is now living, where the judgment was rendered, or where the debt was incurred
An unfulfilled money judgment may be revived by
filing an ex parte motion with the court in which judgment was rendered.
a. The filing of the motion to revive interrupts the ten-year prescriptive period applicable to the judgment.
Where the judgment entitles a party to possession of some property, a writ of possession will be issued directing the sheriff to
seize and deliver the property to the one who is entitled to possession, or compel the person in possession to relinquish the property, using force where necessary
Where the judgment orders the delivery of movable property and the sheriff cannot seize it because the defendant has concealed it or removed it from the court’s jurisdiction, or where the judgment orders a defendant to do or refrain from doing a certain act and he refuses or neglects to comply with the order, the party entitled to performance may obtain the following remedies:
writ of distringas
get an injunction or get the court to hold the person in contempt
judgment for damages sustained as a result of the party’s noncompliance
a writ of distringas to distrain the property is
a writ ordering the defendant to stop concealing or removing the property from the jurisdiction and to return it to the court (i.e., to turn it over)
Where the judgment directs a party to perform a specific act and he fails to comply within the time specified, the court may
direct the act to be done by the sheriff, or another person appointed by the court, at the cost of the disobedient party.
A party seeking the execution of a foreign judgment or decree by a Louisiana court may
a. seek enforcement pursuant to the Enforcement of Foreign Judgments Act; or
b. bring an ordinary proceeding against the judgment debtor in the proper Louisiana court to have the judgment or decree recognized and made the judgment of the Louisiana court.
Unless expressly disallowed by law, appeals may be taken from all final judgments; EXCEPT
A party who confessed judgment in the trial court proceedings or voluntarily and unconditionally acquiesced in a judgment rendered against him cannot appeal such judgment
Appellate jurisdiction extends to issues of
both law and fact
On appeal, questions of law are reviewed
de novo by the appellate courts, with no special weight given to the findings of the trial court.
On appeal, questions of fact are reviewed
Appellate courts give great weight to the factual findings of the trial court, and will not disturb such findings absent “manifest error.”
On appeal, damages awarded by the trial court are reviewed
Much discretion is afforded to the trial court judge and jury in the assessment of damages.
A suspensive appeal is one that
seeks to suspend the effects or the execution of an order
A suspensive appeal must be taken within
30 days of:
(a) the last day for applying for a new trial or judgment notwithstanding the verdict, if no application has been timely filed; or
(b) the date of the court’s notice of refusal to grant a timely application for a new trial or judgment notwithstanding the verdict.
A devolutive appeal is one that
just appeals a judgement without asking for a suspension of the order
a devolutive appeal must be taken within
60 days of:
(a) the last day for applying for a new trial or judgment notwithstanding the verdict, if no application has been timely filed; or
(b) the date of the court’s notice of refusal to grant a timely application for a new trial or judgment notwithstanding the verdict.
May temporary restraining orders issued by a trial court be appealed?
No.
Appeals from an order or judgment relating to a preliminary injunction must be taken within
15 days
Once an appellate court grants an order of appeal, the appellate court assumes jurisdiction over
all matters reviewable in the case; the trial court retains jurisdiction over only those matters not reviewable under the appeal.
Following notice of judgment from the Louisiana Court of Appeals, a party may
a. apply to the appeals court for a rehearing within 14 days; or
b. apply to the Supreme Court for a writ of certiorari within 30 days.
If a party’s application for a rehearing has been denied, the time by which he may apply for a writ of certiorari to the Supreme Court is
30 days after receiving notice of the denial
Following notice of judgment from the Supreme Court of Louisiana Court, a party may apply for a rehearing within
14 days
The doctrine of res judicata bars the same parties from
relitigating claims or issues that have previously been decided in a valid and final judgment, except on appeal or other direct review. The purpose of the doctrine is “to promote judicial efficiency and final resolution of disputes by preventing needless relitigation.”
A prior judgment between two parties does not bar another action by the plaintiff where:
(1) exceptional circumstances justify relief from the preclusive effect of the judgment;
(2) the prior judgment was dismissed without prejudice
(3) the plaintiff or the defendant was unable to bring the claim sooner
Summary proceedings may be used for trial or disposition of the following matters
a. an incidental question arising in the course of judicial proceedings;
b. an application for a new trial;
c. an issue which may be raised by an exception, contradictory motion, or rule to show cause;
d. a habeas corpus, mandamus, or quo warranto proceeding;
e. certain matters related to child custody, visitation, and support; spousal support; injunctive relief; or use of certain items of personal property; or
f. any other matter permitted by law.
A summary proceeding is usually commenced by filing
a contradictory motion or a rule to show cause
Formal service of process is replaced by serving upon the defendant a copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, along with a copy of the court order setting the trial date
Executory proceedings are used to
effect the rapid seizure and sale of property, without obtaining a personal judgment against the debtor.
a. Such proceedings require that the debtor acknowledges the obligation secured by such property and confesses judgment if the obligation is not paid at maturity.
In order to use executory process to enforce a mortgage, security agreement, or privilege, the plaintiff must
file a petition as well as evidence of his right to enforce the obligation.
a. If the plaintiff is successful, the court will order the issuance of a writ of seizure and sale, commanding the sheriff to seize and sell the property affected by the mortgage or privilege.
Concursus
Interpleader–many people claiming a right to a particular piece of property
A concursus proceeding may be brought in any parish of proper venue as to any claimant, except that claims involving real property must be brought in the parish where the property is situated.
Conservatory Writs
preserve property, pending the outcome of the case
two types: attachment & sequestration
A plaintiff may obtain writ of attachment where the defendant:
(1) is attempting to dispose of or convert his property in order to defraud his creditors;
(2) has concealed himself to avoid service of citation;
(3) has left the state permanently, or is about to do so before a judgment can be obtained and executed against him; or
(4) is a nonresident who has no duly appointed agent for service of process within the state.
Property properly attached may be used to satisfy any judgment in favor of the plaintiff.
A plaintiff may obtain writ of sequestration where
he claims ownership or right to possess certain property, and the defendant has the power to conceal, dispose of, commit waste to, or remove the property from the parish during the pendency of the action.
Under sequestration, the court will
have the property seized until an adjudication concerning that property is made.
Upon petition, a court will issue an injunction where
the party seeking it can show that, without the injunction, s/he will suffer irreparable injury
During the pendency of an action for an injunction, the court may issue a
temporary restraining order, a preliminary injunction, or both.
The issuance of a preliminary injunction requires that the adverse party first receive
notice and an opportunity for a hearing.
A temporary restraining order may be granted without notice when
immediate and irreparable harm will result without it, and the attorney certifies in writing why s/he cannot notify the opposing party or what efforts have been made to notify that party
A petitory action involves
when someone claims ownership but who is not in possession of the land at the time; it’s a suit AGAINST the party currently in possession
In a petitory action, to obtain a judgment recognizing ownership, the plaintiff must prove
(1) that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession; or
(2) that he has a superior claim to title, if the court finds that the defendant is not in possession.
A possessory action involves
someone who is in possession of the land, whose possession has been interrupted or disturbed in law or in fact
To obtain a judgment restoring this right, the plaintiff must prove that
(1) he had possession at the time the disturbance occurred;
(2) he (and his ancestors in title) had quiet and uninterrupted possession for more than one year immediately prior to the disturbance, unless evicted by force or fraud;
(3) the disturbance was one in fact or in law; and
EXAMPLE: Eviction is a disturbance in fact. The existence of a recorded deed asserting another’s right to ownership is a disturbance in law.
(4) the possessory action was instituted within one year of the disturbance.
If the defendant in a possessory action asserts title in himself, except as to offer proof of possession, he thereby converts the suit into
a petitory action and judicially confesses the other party’s possession of the property.
if prior to judgment in a possessory action, the defendant institutes a petitory action in a separate suit against the plaintiff, he judicially confesses
the other party’s possession of the property in the petitory action.
A plaintiff may not cumulate a petitory and a possessory action in the same suit or plead them in the alternative; doing so constitutes
a waiver of the possessory action.
When a lessee fails to vacate the leased premises following the cessation of his right to occupancy, the lessor may provide the lessee with
five days’ notice of his intention to evict.
Upon reasonable belief that the lessee has abandoned the premises, the lessor may
take possession
If the lessee fails to vacate, the lessor may
have him cited summarily to show cause as to why he should not be ordered to vacate.
If the lessee does not comply with the judgment of eviction within 24 hours
the court will issue a warrant directing the sheriff to deliver possession to the lessor, using force to gain entry to the premises as necessary
Tutorship refers to
a proceeding to be declared the legal guardian of a minor
A petition for the appointment of a tutor of a minor domiciled in Louisiana must be filed in the district court of the parish where:
a. the surviving parent is domiciled, if one parent is deceased;
b. the custodial parent is domiciled, if the parents are divorced or judicially separated; or
c. the minor resides.
Interdiction refers to
an adult or emancipated minor who needs a curator to take over his or her affairs (for incompetent people)
A petition for interdiction should be filed in the parish where the defendant
a. is domiciled;
b. resides, if he has no domicile in Louisiana; or
c. is physically present, if he does not reside in the state.
The petition for interdiction must include
a. the name, domicile, age, and current address of the petitioner, and his relationship to the defendant;
b. the name, domicile, age, and current address of the defendant, and the place the petitioner proposes the defendant will reside;
c. the reasons why interdiction is necessary, and to what extent;
d. the name and address of any legal representative of the defendant;
e. the name and address of any person previously designated as curator by the defendant; and
f. the name, domicile, age, education, and current address of the proposed curator, as well as the reasons why he should be appointed.
The petitioner in an interdiction proceeding bears the burden of proof by
clear and convincing evidence
A judgment of interdiction will result in the court’s appointment of a
curator.
If the judgment is for a limited interdiction, the court will confer upon the limited curator only those powers necessary to perform his duties; the limited interdict retains the capacity of a natural person except as expressly limited by the judgment.
A writ of habeas corpus commands
a person who has another in his custody to produce him before the court and to state the authority for the custody.
Venue for habeas corpus proceedings is proper in the parish where
(1) the defendant is domiciled; or
(2) the detainee is in custody.
A writ of mandamus may be issued to
direct a public officer to perform his ministerial duties as required by law.
The writ of mandamus may also direct a corporation to
(1) perform a duty required by its charter or bylaws or prescribed by law; or
(2) recognize the rights of its members or shareholders.
A writ of quo warranto
directs an individual to show by what authority he claims to hold a public or corporate office.
The writ of quo warranto may also direct a corporation to
show by what authority it exercises certain powers
