LA Code of Civil Procedure

Question 1

How many Justices does the LA Supreme Court have?

Answer 1

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.

Question 2

What is the LA Supreme Court’s jurisdiction?

Answer 2

(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.

Question 3

The Court’s scope of review extends to

Answer 3

1) law and facts in civil appeals cases, and

2) questions of law only in criminal appeals.

Question 4

How many courts of appeals are there in LA?

Answer 4

Five, called circuit courts

Question 5

How many judges does each circuit court have?

Answer 5

Between 8 and 13, though a panel of only three is required to hear a case.

Question 6

(a) Each court of appeal has supervisory jurisdiction over lower cases arising in its circuit.
(b) Circuit courts may hear appeals from:

Answer 6

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).

Question 7

The scope of the circuit courts extend to

Answer 7

civil cases (law and fact)
criminal cases (fact only)

Question 8

District courts generally have appellate jurisdiction over

Answer 8

(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.

Question 9

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

Answer 9

$15,000

Question 10

Some city courts have established small claims divisions, providing relaxed procedures for claims not exceeding

Answer 10

$5,000

Question 11

City court appeals are taken to

Answer 11

the court of appeals, not the district court

Question 12

The civil jurisdiction of parish courts is generally concurrent with district courts in cases involving up to

Answer 12

$20,000

Question 13

Cases tried by parish courts are appealed to

Answer 13

the court of appeals

Question 14

Justice of the peace courts have original civil jurisdiction concurrent with the district courts in cases involving up to

Answer 14

$5,000 in dispute

Question 15

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

Answer 15

The amount in controversy/rent due

Question 16

Proper service of process is required for most civil actions to proceed, unless

Answer 16

written waiver is issued by the person entitled to service

Question 17

A long arm statute grants a state the authority to exercise

Answer 17

personal jurisdiction over a nonresident defendant based upon his contacts with the forum state.

Question 18

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:

Answer 18

(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.”

Question 19

In order to satisfy the federal due process requirements of the Fourteenth Amendment, the defendant must have:

Answer 19

(i) received notice of the suit, and (ii) established sufficient minimum contacts with the forum state.

Question 20

If a party’s contacts with the forum state are substantial or pervasive, the court may exercise

Answer 20

“general” jurisdiction over that party

Question 21

If a party’s contacts with the forum state involve a single act or are systematic and continuous, the court may exercise

Answer 21

“specific” jurisdiction over that party, limited to contract pertaining to the facts of the claim

Question 22

For a party to establish a minimum contact, it must

Answer 22

“purposefully avail” itself to the privilege of conducting activities within the forum state.

Question 23

Factors: Courts consider the following five factors when determining whether it is fair to require the defendant to litigate in the forum state:

Answer 23

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.

Question 24

In rem jurisdiction occurs where

Answer 24

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).

Question 25

Quasi-in rem jurisdiction

Answer 25

occurs where adjudicative rights between the parties, based on there being property in the state; you still need to establish minimum contacts.

Question 26

Louisiana courts are also authorized to exercise jurisdiction over certain cases based upon

Answer 26

the type of claim asserted or proceeding being undertaken.

Question 27

The following types of cases or proceedings are subject to the jurisdiction of Louisiana courts:

Answer 27

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.

Question 28

In most cases, venue is the defendant’s privilege, and an objection to venue will be waived if

Answer 28

the defendant fails to raise the issue.

Question 29

(Venue) against an individual who is domiciled in the state must be brought

Answer 29

in the parish in which the person resides

Question 30

(Venue) against a domestic corporation, insurer, or LLC must be brought:

Answer 30

in the parish where the registered office is located

Question 31

(Venue) against a domestic partnership or unincorporated association must be brought:

Answer 31

principle place of business

Question 32

(Venue) against a foreign corporation or LLC licensed to do business in Louisiana must be brought in

Answer 32

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;

Question 33

(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

Answer 33

place of P’s domicile or any parish where the D is subject to personal jurisdiction

Question 34

(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

Answer 34

in the parish of the agent’s designated post office

Question 35

(Venue) against a foreign or alien insurer must be brought

Answer 35

in East Baton Rouge Parish

Question 36

(Venue) If a defendant has recently changed his parish of domicile

Answer 36

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

Question 37

(Venue) A tort action may be brought in the parish where:

Answer 37

(1) the defendant is domiciled;
(2) the wrongful conduct occurred; or
(3) the damages were sustained.

Question 38

(Venue) An action for annulment of marriage or divorce may be brought in the parish:

Answer 38

(1) where either party is domiciled; or

(2) in the parish of marital domicile

Question 39

(Venue) An action on a contract may be brought in the parish where:

Answer 39

(1) the contract was executed; or

(2) any work or service was performed, or was to be performed, under the terms of the contract

Question 40

(Venue) An action on a life insurance policy may be brought in the parish where:

Answer 40

(1) the deceased died;
(2) the deceased was domiciled; or
(3) where any one beneficiary is domiciled

Question 41

(Venue) An action on an insurance policy other than life insurance may be brought in the parish where:

Answer 41

(1) the insured is domiciled; or

(2) the accident, illness, or loss occurred

Question 42

(Venue) Actions involving real property must be brought

Answer 42

(1) in the parish where the defendant is domiciled; or

(2) in any parish in which the real property is situated.

Question 43

Where jurisdiction over a nonresident defendant has been attained pursuant to the state’s long-arm statute, venue is proper in the parish

Answer 43

(a) where the plaintiff is domiciled; or

(b) in any other parish in which venue may be proper

Question 44

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:

Answer 44

Baton Rouge or the parish in which the cause of action arose

Question 45

(Venue) Class is Plaintiff: An action brought on behalf of a class must be brought

Answer 45

based on the defendant - wherever s/he can be sued

Question 46

(Venue) Class is Defendant: An action brought against a class must be brought

Answer 46

where any named defendant in the class can be sued

Question 47

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

Answer 47

(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.

Question 48

If an action has been brought in an improper venue, the court may:

Answer 48

dismiss the action or in the interest of justice, send the case to the proper venue

Question 49

Forum Non Conveniens

Answer 49

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

Question 50

As a general rule, who has capacity to sue and be sued?

Answer 50

competent adults and emancipated minors

Question 51

May an agent bring suit on behalf of his principle?

Answer 51

Yes.

Question 52

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:

Answer 52

a. the plaintiff must have standing,
b. the action must not be moot, and
c. the action must be ripe for litigation

Question 53

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

Answer 53

A party’s death does not abate the action unless the action is to enforce a right or obligation that is strictly personal.

Question 54

A plaintiff may cumulate against the same defendant two or more claims, regardless of the grounds, if

Answer 54

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.

Question 55

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if

Answer 55

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.

Question 56

A person must be joined as a party in the action when

Answer 56

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

Question 57

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

Answer 57

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.

Question 58

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:

Answer 58

the court can dismiss all the actions, other than the first filed (assuming the others are being brought in a non-federal, Louisiana court).

Question 59

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

Answer 59

stay its own proceeding

Question 60

An action is considered to be abandoned when

Answer 60

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.

Question 61

The filing of a class action requires that the following elements be met:

Answer 61

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.

Question 62

A class action may only be commenced if it falls within one of the following categories:

Answer 62

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.

Question 63

A motion to certify a class must be made

Answer 63

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.”

Question 64

before a class action can be dismissed or settled

Answer 64

there must be court approval

Question 65

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

Answer 65

their interests were adequately represented.

Question 66

may a derivative suit be maintained as a class action?

Answer 66

Yes.

Question 67

Proper petitions in derivative actions must:

Answer 67

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)

Question 68

A civil action is commenced by

Answer 68

filing a pleading presenting the demand to a court of competent jurisdiction.

Question 69

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):

Answer 69

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.

Question 70

Personal Service

Answer 70

Personal service is accomplished by tendering process (citation and petition together are collectively called “process”) to the person being served.

Question 71

Domiciliary Service:

Answer 71

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.

Question 72

Registered/Certified Mail

Answer 72

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.

Question 73

Service is also proper, via personal or domiciliary service, when

Answer 73

made upon a person who is represented by another by court appointment, operation of law, or mandate.

Question 74

The secretary of state is impliedly authorized to act as an agent for service of process upon

Answer 74

(a) nonresidents operating motor vehicles on state highways; and
(b) nonresidents operating watercraft on state waterways.

Question 75

Service of process on a partnership is made by:

Answer 75

serving any one of the partners

Question 76

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

Answer 76

serve an employee of the partnership wherever the partnership business is conducted, but the person served must be of suitable age

Question 77

Service of process on a corporation is made by:

Answer 77

Serving an agent designated to receive service

Question 78

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

Answer 78

(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.

Question 79

Service of process on an LLC is made by

Answer 79

any agent designated to receive service

Question 80

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

Answer 80

(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.

Question 81

Service of process on an unincorporated association is made by

Answer 81

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.

Question 82

Service of process on a political subdivision or other public entity may be made

Answer 82

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.

Question 83

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

Answer 83

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.

Question 84

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

Answer 84

the assistant secretary of state or on another individual in the office designated to receive service of process.

Question 85

Service upon the secretary of state as an agent for nonresident motor vehicle operators can be made via

Answer 85

registered or certified mail, or by actual delivery to the defendant.

Question 86

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

Answer 86

registered mail or personal delivery, along with a copy of the citation and petition.

Question 87

Personal service is ordinarily accomplished by the sheriff of the parish where:

Answer 87

(1) service is to be made; or

(2) the action is pending.

Question 88

After the sheriff executes service of process, the sheriff must

Answer 88

sign a return of service (this is how litigants prove service of process)

Question 89

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

Answer 89

any regular constable of the parish, or by any officer appointed by the court.

Question 90

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:

Answer 90

the age of the majority
not a party to the case
Louisiana resident

Question 91

Where can process be made in an action or proceeding brought in a parish that is not the defendant’s domicile?

Answer 91

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

Question 92

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:

Answer 92

anywhere you can find him

Question 93

Pleadings subsequent to the original petition may be served by the sheriff or by:

Answer 93

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.

Question 94

When service is made by mail, delivery, or electronic means, the party making the service must

Answer 94

certify the manner in which service was made.

Question 95

If a pleading or order sets a court date, then service must be made by

Answer 95

actual delivery, delivery by the sheriff, or by registered, certified mail

Question 96

Pleadings in civil actions must be

Answer 96

in writing, and consist of petitions, exceptions, written motions, and answers.

Question 97

The Pleading must contain a caption setting forth

Answer 97

a. the type of pleading;
b. the name of the court; and
c. the title and number of the action.

Question 98

Although no technical forms of pleading are required, all allegations of fact should be set forth in

Answer 98

numbered paragraphs and be simple, concise, and direct

Question 99

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

Answer 99

(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.

Question 100

Process consists of the citation and the petition.

Answer 100

a. The citation functions as the official cover letter.

b. The petition contains the allegations made.

Question 101

The citation must contain the following

Answer 101

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.

Question 102

The petition must conform to the following requirements

Answer 102

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.

Question 103

What must be specifically alleged (with particularity)?

Answer 103

Circumstances constituting fraud or mistake;
Malice, intent, knowledge, and other conditions of mind;
Items of special damage

Question 104

With limited exceptions, the prayer for relief may not contain

Answer 104

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.

Question 105

After being served with process, the defendant’s must file his answer within

Answer 105

15 days

Question 106

The answer must contain the following

Answer 106

1. admission or denial of all the allegations
2. state in general terms the facts upon which your defenses are based
3. assert any affirmative defenses – otherwise they’re waived
4. 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.

Question 107

Affirmative defenses not raised in the answer are deemed to have been waived. Such defenses include:

Answer 107

(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.

Question 108

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?

Answer 108

Yes.

Question 109

Declinatory Exception

Answer 109

This exception is used to challenge the court’s jurisdiction

Question 110

The defendant may object to the following through the declinatory exception

Answer 110

(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.

Question 111

All declinatory objections are waived if not asserted in the defendant’s answer or in a pre-answer pleading, except for

Answer 111

except for lack of subject matter jurisdiction

Question 112

Dilatory Exception

Answer 112

This exception serves to delay the progress of the action.

Question 113

The defendant may object to the following through the dilatory exception:

Answer 113

(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.

Question 114

All dilatory exception are waived if not asserted in

Answer 114

the defendant’s answer or in a pre-answer pleading

Question 115

When both the declinatory and dilatory exceptions are pleaded, they must be filed

Answer 115

at the same time, and may be incorporated in the same pleading.

Question 116

Peremptory Exception

Answer 116

This exception serves to dismiss or defeat the plaintiff’s action by having it declared legally nonexistent or barred by effect of law

Question 117

The defendant may object to the following through the peremptory exception

Answer 117

(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.

Question 118

When can a defendant plead the peremptory exception?

Answer 118

A defendant may plead the peremptory exception at any stage of the proceeding prior to submission of the case for a decision.

Question 119

Incidental demands are those

Answer 119

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

Question 120

An incidental demand is commenced by

Answer 120

filing a petition, which must conform to the same formalities required of a petition filed when commencing a suit.

Question 121

An incidental demand may be filed without leave of the court at any time up to and including the time

Answer 121

the answer to the principal demand is filed

Question 122

An incidental demand may be filed after the defendant’s answer, with leave of the court, if:

Answer 122

(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.

Question 123

A court will have jurisdiction over an incidental demand only if

Answer 123

it would have had jurisdiction over that demand had it been instituted in a separate suit.

Question 124

Where venue is proper as to the principal demand, it will be proper as to

Answer 124

any incidental demand

Question 125

What effect does a plaintiff’s dismissal of the principal demand on any incidental demands?

Answer 125

Generally, no.

Question 126

What is a reconventional demand?

Answer 126

A counterclaim

Question 127

A defendant may assert in a reconventional demand for

Answer 127

any causes of action that he may have against the plaintiff in the principal action.

Question 128

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

Answer 128

reconventional demand, else the defendant will be precluded from bringing them in a separate action.

Question 129

Whether the petition in reconvention is incorporated in the defendant’s answer to the principal action or filed separately, it must be

Answer 129

served in the same manner as any other petition asserting a claim, although no citation need be served on the original plaintiff.

Question 130

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:

Answer 130

(a) the original action; or

(b) a reconventional demand.

Question 131

The petition in a cross claim must be served on the co-party in what manner?

Answer 131

the same manner as any other petition asserting a claim, although no citation is necessary.

Question 132

A third person may intervene in a pending action to

Answer 132

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.

Question 133

An intervener may

Answer 133

(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

Question 134

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?

Answer 134

(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.

Question 135

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

Answer 135

(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.

Question 136

A plaintiff may amend his petition without leave of the court

Answer 136

until the defendant files an answer

Question 137

A defendant may amend his answer

Answer 137

once, without leave of the court, within 10 days of service

Question 138

The petition and answer may only be amended after the within 10 days of service window has closed by

Answer 138

leave of the court or by written consent of the adverse party.

Question 139

A defendant may amend his declinatory or dilatory exceptions

Answer 139

at any time prior to trial with leave from the court

thereafter, with written consent of the opposing party.

Question 140

A defendant may amend his peremptory exception

Answer 140

at any time without leave of the court

Question 141

Amendments relate back to

Answer 141

the date of filing the original pleading

Question 142

The court may permit a supplemental petition or answer to be filed setting forth items of damage, causes of action, or defenses which

Answer 142

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.

Question 143

A person can petition the court to be designated as in forma pauperis if he can establish that

Answer 143

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.

Question 144

Generally, the scope of discovery is

Answer 144

anything that is relevant that is not privileged

Question 145

Must the things sought through discovery be admissible at trial?

Answer 145

The information sought need not be admissible at trial, but only reasonably calculated to lead to the discovery of admissible evidence.

Question 146

Are insurance agreements discoverable?

Answer 146

Yes.

Question 147

A party may request that the adverse party identify each expert witness expected to testify at trial, as well as

Answer 147

the facts and opinions held by each experts

Question 148

Upon motion, the expert witness must provide a written report detailing

Answer 148

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.

Question 149

Generally, facts and opinions held by experts who are retained by a party but are not expected to testify fall under

Answer 149

the protection of the work product doctrine and are not discoverable absent exceptional circumstances.

Question 150

What is work product

Answer 150

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.

Question 151

A party withholding Information under the work product doctrine must make such claim

Answer 151

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.

Question 152

The court may issue an order prohibiting or limiting discovery, as justice requires, to protect a party or person from

Answer 152

annoyance, embarrassment, oppression, or undue burden or expense.

Question 153

Each request for discovery, or response or objection thereto, by a represented party must be:

Answer 153

signed and verified

Question 154

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

Answer 154

(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.

Question 155

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:

Answer 155

(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.

Question 156

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

Answer 156

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.

Question 157

The following methods of discovery are permissible

Answer 157

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.

Question 158

Is the frequency of use of discovery methods limited?

Answer 158

No, unless the court orders otherwise

Question 159

Methods of deposing a party or other person include

Answer 159

(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

Question 160

All depositions must be taken before an

Answer 160

officer authorized to administer oaths

Question 161

(1) A party may object when a deposition is being conducted in an irregular manner.

Answer 161

(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.

Question 162

All objections must be noted in the transcript, and the witness must ordinarily answer subject to the objection, except

Answer 162

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.

Question 163

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:

Answer 163

(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.

Question 164

Written interrogatories cannot exceed

Answer 164

35 in number

Question 165

Parties must answer or object within

Answer 165

15 days of service, except that defendants have at least 30 days after service of the petition to respond.

Question 166

A party may serve on any other party a request to produce documents or electronically stored information for the purpose of

Answer 166

inspecting, copying, testing, and sampling

Question 167

A party may request permission from any other party to enter upon designated land or other property in order to

Answer 167

inspect, measure, survey, photograph, test, or sample the property

Question 168

Parties served with a Requests for Production and Inspection must respond within

Answer 168

15 days, unless it’s been less than 30 days since the petition had been filed

Question 169

When the mental or physical condition of a party is in controversy, the court may order the party to submit to

Answer 169

a physical or mental examination by a physician

Question 170

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

Answer 170

produce for examination the person in his custody or legal control.

Question 171

When the court orders that a person submit to a medical examination, the order must

Answer 171

specify the time, place, manner, conditions, examiner, and scope of the examination

Question 172

The party against whom an order to submit to a medical examination is made or the person examined may

Answer 172

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.

Question 173

A party may request another party whose medical records are relevant to an issue in the case to authorize his health care provider to

Answer 173

release his medical records to the requesting party

Question 174

The party upon whom the Requests for Release of Medical Records is made must respond within

Answer 174

15 days

Question 175

The party requesting the medical records must provide to the party whose medical records are being sought a copy of all documents obtained within

Answer 175

7 days of receipt.

Question 176

Any party may serve upon another party a request to admit in the record that:

Answer 176

(1) a relevant fact is true; or

(2) a particular document is genuine.

Question 177

Requests for admission of fact are deemed conclusively proved to be true, and documents conclusively proved to be genuine, if

Answer 177

no response is given by the party upon whom the request is served within 15 days.

Question 178

A district court may order a pretrial conference to consider any of the following

Answer 178

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.

Question 179

Motion to Strike

Answer 179

either by motion or sue sponte, the court can strike certain evidence or testimony

Question 180

A party may move for judgment on the pleadings when

Answer 180

there is no reason to bring the case before the jury because the moving party is entitled to judgment as a matter of law

Question 181

When ruling on a motion for judgment on the pleadings, the court considers to be true all factual allegations

Answer 181

(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.

Question 182

A party may move for a judgment on the pleadings at any time after

Answer 182

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.

Question 183

A party may make a motion for the court to declare summary judgment on the moving party’s behalf if

Answer 183

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.

Question 184

The moving party on a motion for summary judgment bears the burden of proving that

Answer 184

it is entitled to it

Question 185

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

Answer 185

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.

Question 186

Timing on a motion for summary judgment, plaintiff’s motion

Answer 186

may be filed once the answer has been filed

Question 187

Timing on a motion for summary judgment, defendant’s motion

Answer 187

may be made at any time

Question 188

may the moving party appeal the court’s denial of its motion for summary judgment?

Answer 188

NO.

Question 189

At any time prior to 20 days before trial, a party may serve upon an adverse party an

Answer 189

offer of judgment for the purpose of settling all of the claims between them.

The offer does not act as an admission of liability.

Question 190

If the adverse party accepts the offer of judgment

Answer 190

it must accept within ten days; thereafter, either party may move for judgment on the offer

Question 191

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

Answer 191

the costs of litigation, excluding attorney’s fees, incurred between now and the time the offer was made.

Question 192

Louisiana recognizes the right of trial by jury, except as follows

Answer 192

1. where no individual’s claim exceeds $50,000
2. 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.
3. 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;
4. a proceeding to determine custody, visitation, alimony, or child support;
5. administrative review (review of an administrative proceeding);
6. all cases where a jury trial is specifically denied by law

Question 193

A party may obtain a jury trial by filing a pleading with the jury demand and posting a bond within

Answer 193

ten days following the last pleading directed to any issue triable by a jury.

Question 194

Preemptory challenges available to each side when there are six jurors

Answer 194

3

(1) If there is more than one party on any side, the court may allow each side up to two additional challenges.

Question 195

Preemptory challenges available to each side when there are twelve jurors

Answer 195

6

(1) If there is more than one party on any side, the court may allow each side up to four additional challenges.

Question 196

A prospective juror may be challenged for cause if he

Answer 196

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

Question 197

Peremptory challenges are not permitted after

Answer 197

the entire jury has been accepted and sworn; challenges for cause may be made up to the beginning of the taking of evidence.

Question 198

a court may permit a continuance if there is

Answer 198

“good grounds” for it

Question 199

The court will permit a continuance on peremptory grounds if a party shows that:

Answer 199

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.

Question 200

When two or more separate actions are pending in the same court, the court may order consolidation of the actions for trial if

Answer 200

1. there are common questions of law and fact that predominate over questions that are different, and
2. doing so is in the interest of justice

Question 201

Consolidation will not be ordered if it would do any of the following

Answer 201

1. it would confuse the jury
2. because of the nature of the allegations, consolidation would prevent a fair/impartial trial
3. consolidation would give a party an undue advantage
4. prejudice the rights of the other party

Question 202

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:

Answer 202

1. simplify the case
2. permit a more orderly handling of the case, or
3. would be in the interest of justice

Question 203

Formal exceptions to a judge’s rulings or orders are unnecessary so long as

Answer 203

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.

Question 204

At the request of any party, the court may allow any excluded evidence to be offered, subject to cross-examination

Answer 204

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.

Question 205

When evidence is ruled inadmissible, the party offering it may

Answer 205

make a complete record of the evidence or a statement setting forth the nature of the evidence.

Question 206

May the judge comment on the facts of the case in the jury’s presence?

Answer 206

No.

Question 207

The judge may instruct the jury on the applicable law during the trial, and will do so in writing upon

Answer 207

the close of the trial and before deliberation

Question 208

Jurors are permitted to take notes during the trial to be used during deliberation, but

Answer 208

such notes are not be preserved for review on appeal.

Question 209

Jurors may examine any object or writing received in evidence, other than

Answer 209

depositions, during deliberation

Question 210

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

Answer 210

in the courtroom

Question 211

The court, after giving notice to the parties, may recall the jury after they have retired

Answer 211

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.

Question 212

Concurrence Required for Verdict, 6 juror trial

Answer 212

5 unanimous votes

Question 213

Concurrence Required for Verdict, 12 juror trial

Answer 213

9 unanimous votes

Question 214

A plaintiff can obtain a judgment to dismiss an action without prejudice at any time prior to

Answer 214

the defendant making an appearance of record.

Question 215

After a defendant has made an appearance of record, the court may

Answer 215

refuse to grant the plaintiff’s request of dismissal except with prejudice.

Question 216

The court may order an action dismissed if

Answer 216

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.

Question 217

In a nonjury trial, the defendant may move for dismissal after the plaintiff has completed his presentation of the evidence on the grounds that

Answer 217

upon the facts and the law, the plaintiff has shown no right to relief.

Question 218

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

Answer 218

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

Question 219

Although the standard for granting a directed verdict is not statutorily defined, it is generally granted where:

Answer 219

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.

Question 220

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

Answer 220

the court will direct the entry of the appropriate judgment.

Question 221

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

Answer 221

(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

Question 222

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:

Answer 222

(1) return the jury for further consideration of its answers; or
(2) order a new trial.

Question 223

A judge MUST recuse himself from presiding over a cause where

Answer 223

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

Question 224

A judge MAY be recused where

Answer 224

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.

Question 225

When challenging a will, the party in opposition must

Answer 225

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

Question 226

Once a person properly challenges the validity of the will, the proponent must

Answer 226

The proponent of the will bears the burden of proving the authenticity of the will and its compliance with will formalities.

Question 227

Default Judgment

Answer 227

When a party fails to appear, a judge will render a default judgment against the no-show party

Question 228

Is the case over once a default judgment has been rendered?

Answer 228

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.

Question 229

The amount of damages awarded in a default judgment will be

Answer 229

the amount proven to be properly due as a remedy.

Question 230

When can a default judgment be rendered?

Answer 230

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.

Question 231

Interlocutory Judgment

Answer 231

Adjudicates preliminary matters; judgments that do not dispose of the case (e.g. granting or denying change in venue)

Question 232

Interlocutory judgments include, among others, those which

Answer 232

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.

Question 233

A party may seek review of an interlocutory judgment by an appellate court through

Answer 233

an application for a supervisory writ.

Question 234

Although the statutes do not provide a standard for granting a supervisory writ, courts generally do so only where

Answer 234

the trial court judgment will cause the party irreparable injury.

Question 235

In limited circumstances, a party may also seek review by directly appealing an interlocutory judgment, but only where

Answer 235

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.

Question 236

How long after the verdict is given must a judge enter judgment

Answer 236

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.

Question 237

The court may render a partial final judgment in which it:

Answer 237

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.

Question 238

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

Answer 238

the court expressly designated it as such after express determination that there is no just reason for delay.

Question 239

Declaratory Judgment

Answer 239

judgment that adjudicates rights, even without damages. There is a legal dispute, but no damages have yet occurred.

Question 240

A judgment notwithstanding the verdict is

Answer 240

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.

Question 241

A court will grant a judgment notwithstanding the verdict only when

Answer 241

“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.”

Question 242

Either party may move for a judgment notwithstanding the verdict within

Answer 242

seven days after notice of judgment, or discharge of the jury if no verdict was returned.

Question 243

If the court has granted a judgment notwithstanding the verdict, and a jury verdict was returned, the court may

Answer 243

a. allow the judgment to stand;
b. alter the judgment; or
c. order a new trial.

Question 244

If the court has granted a judgment notwithstanding the verdict, and no jury verdict was returned, the court may

Answer 244

render a judgment him/herself or order a new trial

Question 245

Grounds for granting a new trial include

Answer 245

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

Question 246

In considering a motion for a new trial, the judge will

Answer 246

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.”

Question 247

Either party may move for a new trial within

Answer 247

seven days after notice of judgment

Question 248

A trial court’s discretion to grant or deny a motion for a new trial is broad, and will only be overturned upon

Answer 248

a clear showing of a judge’s abuse of discretion.

Question 249

A motion for a new trial and a motion for a judgment notwithstanding the verdict may be made

Answer 249

simultaneously or in the alternative.

Question 250

Remittitur and Additur, when available

Answer 250

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

Question 251

Remittitur

Answer 251

occurs where the judge reduces an excessive damage award

Question 252

Additur

Answer 252

occurs where a judge adds additional damages to an insufficient jury award

Question 253

Remittitur and additur are only proper where the issue of the amount of damages is

Answer 253

separable from all other issues in the case

Question 254

A final judgment will be declared null if it is rendered:

Answer 254

(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.

Question 255

A final judgment will be declared null if it is has been obtained

Answer 255

(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.

Question 256

An action of nullity must be brought in

Answer 256

the trial court, regardless of whether the judgment was rendered or affirmed by an appellate court.

Question 257

A judgment for the payment of money may be executed by a writ of fieri facias

Answer 257

a court orders/directs an officer to sieze and sell property owned by the judgment debtor

Question 258

A writ of fieri facias may also be used to enforce garnishment where

Answer 258

property of the judgment debtor is under the control of a third party and subject to garnishment, including wage garnishment.

Question 259

In aid of execution, the judgment creditor (the person who won) may examine

Answer 259

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

Question 260

To ascertain whether the judgment debtor has any assets, the judgment creditor can

Answer 260

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

Question 261

An unfulfilled money judgment may be revived by

Answer 261

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.

Question 262

Where the judgment entitles a party to possession of some property, a writ of possession will be issued directing the sheriff to

Answer 262

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

Question 263

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:

Answer 263

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

Question 264

a writ of distringas to distrain the property is

Answer 264

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)

Question 265

Where the judgment directs a party to perform a specific act and he fails to comply within the time specified, the court may

Answer 265

direct the act to be done by the sheriff, or another person appointed by the court, at the cost of the disobedient party.

Question 266

A party seeking the execution of a foreign judgment or decree by a Louisiana court may

Answer 266

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.

Question 267

Unless expressly disallowed by law, appeals may be taken from all final judgments; EXCEPT

Answer 267

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

Question 268

Appellate jurisdiction extends to issues of

Answer 268

both law and fact

Question 269

On appeal, questions of law are reviewed

Answer 269

de novo by the appellate courts, with no special weight given to the findings of the trial court.

Question 270

On appeal, questions of fact are reviewed

Answer 270

Appellate courts give great weight to the factual findings of the trial court, and will not disturb such findings absent “manifest error.”

Question 271

On appeal, damages awarded by the trial court are reviewed

Answer 271

Much discretion is afforded to the trial court judge and jury in the assessment of damages.

Question 272

A suspensive appeal is one that

Answer 272

seeks to suspend the effects or the execution of an order

Question 273

A suspensive appeal must be taken within

Answer 273

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.

Question 274

A devolutive appeal is one that

Answer 274

just appeals a judgement without asking for a suspension of the order

Question 275

a devolutive appeal must be taken within

Answer 275

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.

Question 276

May temporary restraining orders issued by a trial court be appealed?

Answer 276

No.

Question 277

Appeals from an order or judgment relating to a preliminary injunction must be taken within

Answer 277

15 days

Question 278

Once an appellate court grants an order of appeal, the appellate court assumes jurisdiction over

Answer 278

all matters reviewable in the case; the trial court retains jurisdiction over only those matters not reviewable under the appeal.

Question 279

Following notice of judgment from the Louisiana Court of Appeals, a party may

Answer 279

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.

Question 280

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

Answer 280

30 days after receiving notice of the denial

Question 281

Following notice of judgment from the Supreme Court of Louisiana Court, a party may apply for a rehearing within

Answer 281

14 days

Question 282

The doctrine of res judicata bars the same parties from

Answer 282

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.”

Question 283

A prior judgment between two parties does not bar another action by the plaintiff where:

Answer 283

(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

Question 284

Summary proceedings may be used for trial or disposition of the following matters

Answer 284

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.

Question 285

A summary proceeding is usually commenced by filing

Answer 285

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

Question 286

Executory proceedings are used to

Answer 286

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.

Question 287

In order to use executory process to enforce a mortgage, security agreement, or privilege, the plaintiff must

Answer 287

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.

Question 288

Concursus

Answer 288

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.

Question 289

Conservatory Writs

Answer 289

preserve property, pending the outcome of the case

two types: attachment & sequestration

Question 290

A plaintiff may obtain writ of attachment where the defendant:

Answer 290

(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.

Question 291

A plaintiff may obtain writ of sequestration where

Answer 291

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.

Question 292

Under sequestration, the court will

Answer 292

have the property seized until an adjudication concerning that property is made.

Question 293

Upon petition, a court will issue an injunction where

Answer 293

the party seeking it can show that, without the injunction, s/he will suffer irreparable injury

Question 294

During the pendency of an action for an injunction, the court may issue a

Answer 294

temporary restraining order, a preliminary injunction, or both.

Question 295

The issuance of a preliminary injunction requires that the adverse party first receive

Answer 295

notice and an opportunity for a hearing.

Question 296

A temporary restraining order may be granted without notice when

Answer 296

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

Question 297

A petitory action involves

Answer 297

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

Question 298

In a petitory action, to obtain a judgment recognizing ownership, the plaintiff must prove

Answer 298

(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.

Question 299

A possessory action involves

Answer 299

someone who is in possession of the land, whose possession has been interrupted or disturbed in law or in fact

Question 300

To obtain a judgment restoring this right, the plaintiff must prove that

Answer 300

(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.

Question 301

If the defendant in a possessory action asserts title in himself, except as to offer proof of possession, he thereby converts the suit into

Answer 301

a petitory action and judicially confesses the other party’s possession of the property.

Question 302

if prior to judgment in a possessory action, the defendant institutes a petitory action in a separate suit against the plaintiff, he judicially confesses

Answer 302

the other party’s possession of the property in the petitory action.

Question 303

A plaintiff may not cumulate a petitory and a possessory action in the same suit or plead them in the alternative; doing so constitutes

Answer 303

a waiver of the possessory action.

Question 304

When a lessee fails to vacate the leased premises following the cessation of his right to occupancy, the lessor may provide the lessee with

Answer 304

five days’ notice of his intention to evict.

Question 305

Upon reasonable belief that the lessee has abandoned the premises, the lessor may

Answer 305

take possession

Question 306

If the lessee fails to vacate, the lessor may

Answer 306

have him cited summarily to show cause as to why he should not be ordered to vacate.

Question 307

If the lessee does not comply with the judgment of eviction within 24 hours

Answer 307

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

Question 308

Tutorship refers to

Answer 308

a proceeding to be declared the legal guardian of a minor

Question 309

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:

Answer 309

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.

Question 310

Interdiction refers to

Answer 310

an adult or emancipated minor who needs a curator to take over his or her affairs (for incompetent people)

Question 311

A petition for interdiction should be filed in the parish where the defendant

Answer 311

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.

Question 312

The petition for interdiction must include

Answer 312

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.

Question 313

The petitioner in an interdiction proceeding bears the burden of proof by

Answer 313

clear and convincing evidence

Question 314

A judgment of interdiction will result in the court’s appointment of a

Answer 314

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.

Question 315

A writ of habeas corpus commands

Answer 315

a person who has another in his custody to produce him before the court and to state the authority for the custody.

Question 316

Venue for habeas corpus proceedings is proper in the parish where

Answer 316

(1) the defendant is domiciled; or

(2) the detainee is in custody.

Question 317

A writ of mandamus may be issued to

Answer 317

direct a public officer to perform his ministerial duties as required by law.

Question 318

The writ of mandamus may also direct a corporation to

Answer 318

(1) perform a duty required by its charter or bylaws or prescribed by law; or
(2) recognize the rights of its members or shareholders.

Question 319

A writ of quo warranto

Answer 319

directs an individual to show by what authority he claims to hold a public or corporate office.

Question 320

The writ of quo warranto may also direct a corporation to

Answer 320

show by what authority it exercises certain powers