Louisiana Civil Procedure Flashcards
What can you do when a Defendant does not comply with a judgment against him to do something?
File a writ of distringas
A writ of distringas orders a defendant to do an act, other than delivery of a thing, if they refuse to comply with a court order.
What is it called and when can someone sue their co-defendant?
A co-defendant can assert a cross-claim against a co-defendant if the demand arises out of the transaction or occurrence that is the subject matter of the original action.
What is the process when someone fails to vacate the premises in an eviction process?
The client may serve a rule to show cause to deliver to the premises.
The rule to show cause will be heard no sooner than the third day after service.
If tenant fails to vacate within 24 hours of judgment, the court must issue a warrant directing the sheriff to take possession. THe Sheriff can break down the door, if necessary, and there is no suspension appeal unless tenant contested the rule and posted an appeal bond within 24 hours of the judgment of eviction.
When a lawyer signs a pleading filed for the client, what does the lawyer signify, if anything?
When a lawyer signs a pleading for a client, he is certifying that he has read the pleading and to the best of his knowledge, information, and belief formed after a reasonable inquiry, the pleading:
- is not being used for any improper purpose such as to harass, delay, or increase costs
- is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law
- has or is likely to have evidentiary support
- each denial is warranted by the evidence or reasonably based on lack of information or belief
If you represent an insurance carrier and after depositions, you are certain that the insurance policy excludes this type of claim. What can you file on behalf of Insurer to attempt to extract Insurer from litigation prior to trial?
Insured can file a motion for summary judgment based on its claim that there is no genuine issue of material fact regarding the policy’s coverage and that the Insurer is entitled to a judgment dismissing it from the case as a matter of law.
While the Insurer does bear the burden of proof regarding the policy’s coverage at trial, Insurer’s burden on the motion only requires it to show that there is no factual support for any one element of the employer’s cross claim.
If insured fails to produce factual support sufficient to meet his burden of proof at trial on the cross-claim, there is no genuine issue of material fact for the court to decide and the summary judgment motion will be granted.
What must be filed in support of a summary judgment motion to establish the relief sought?
Affidavits that show that the affiant is competent, that the allegations are based on personal knowledge, and attest to facts admissible at trial.
Where is venue proper for a partnership?
Venue is proper where the Partnership’s principal place of business is located.
Where is venue proper for a corporation?
Where the corporation has its registered office
Where is venue proper for a tort?
Where the tort occurred and where the damage was sustained.
Where is venue proper for an LLC?
The location of the LLC’s registered office
When should a peremptory exception of prescription be filed for a tort action?
When it has been over a year since the injury, the cause of action has prescribed unless the claim was timely filed in a court of competent jurisdiction and venue.
How can you revive a money judgment that was recorded in the mortgage records of the correct parish?
The plaintiff can file an ex parte motion to revive the judgment in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the ten year prescriptive period. The motion must include an affidavit of plaintiff stating that the original judgment has not been satisfied. Service and citation of the motion is not necessary.
How can you learn from the Judgment Debtor whether someone has assets that could satisfy a money judgment?
File a motion for examination of the judgment debtor which may include a request that the judgment debtor bring financial books and records to the examination.
The motion must be filed in the court which rendered the judgment.
If a judgment debtor has substantial funds in a bank that can pay the outstanding money judgment, what should you file?
You should file a writ to fieri facias. Plaintiff should file a petition for garnisment in the parish where the bank may be sued.
Plaintiff serves the citation, petition, garnishment interrogatories, and a notice of seizure on the bank garnishee.
The bank will have 30 days to answer the interrogatories.
Once the Bank admits it hast the judgment debtor’s funds, the court will order Bank to deliver the funds to a sheriff.
What action can you bring for a noise complaint? What would you assert in the pleadings and what must you establish to obtain the relief sought.
File a temporary restraining order (TRO) which must assert that the client will suffer irreparable harm if injunctive relief is not granted.
Irreparable harm is harm which is incapable of being compensated for by money damages.
Client’s petition must be verified and contain an attorney certification regarding efforts made to provide notice to the loud party.
What must a Judge require from a party asserting a TRO to protect the restrained party?
Judge may require the party asserting a TRO to furnish security in an amount sufficient to indemnify the restrained party for any losses or damage incurred as a result of the wrongful issuance of the TRO.
If a party can prove that they were not loud enough to issue a TRO, what should they file to obtain resolution without waiting for trial?
The party can file a motion to dissolve the TRO upon two day’s notice to the party that filed the TRO. The court will hear the motion as expeditiously as justice may require.
How can you get an advance for a succession?
Seek an interim allowance for the maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for his maintenance, provided that the court concludes that such an allowance is necessary and the advances are within the amount eventually due to them.
Heir may compel such payment by contradictory motion against the succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory motion to compel such payment must be published once and state that any opposition must be filed within 10 days of the date of publication.
What should you file if you believe a lawsuit is improper because there is a mandatory arbitration clause?
They could file
1. either a dilatory exception of prematurity or a motion to stay the proceedings in the trial court pending arbitration and
2. a motion to compel arbitration
In each pleading, assert that any disputes arising from the contract must be resolved by arbitration as is required by the contract.
If a trial court rejects an argument that the lawsuit should go into arbitration because there is a mandatory arbitration clause, what can you do?
Since a decision by the trial court rejecting the argument is an interlocutory judgment rather than a final judgment on the merits, an appeal of that decision is not available.
You can seek a review of the trial court’s ruling by filing an application for supervisory writ in the appropriate State Court of Appeal alleging the trial court erred.
Where do you file a judicial emancipation?
A joint petition between a parent and child for emancipation should be filed in the parish where either the child or parent is domiciled.
What is required in a motion for judicial emancipation?
- The child’s name, domicile, age, and current address
- Why good cause exists for the emancipation
- Whether they are requesting a limited judicial emancipation and the effects of majority they are seeking to confer upon the child
- A descriptive list and location of the child’s property
What happens in an emancipation proceeding
The hearing is a summary proceeding in which the child must be present, except for good cause shown.
If it is a joint petition, the emancipation can be granted without a hearing with the consent of the parent, the child, and the court.
A judge sustains the opponent’s objections to a specific line of questioning you intend to cover with your expert witness you believe is crucial to the outcome of the case. How can you preserve your objection so the excluded area of testimony can be reviewed and considered by an appellate court?
No formal exception to the judge’s ruling excluding this evidence is necessary.
Voice your objection to the ruling and make it known that you want to preserve the matter for appeal. This is known as “proffer” or “offer of proof”.
The court will then allow me to pursue the excluded line of questioning with my expert, subject to cross-examination, on the record at a recess or other such time designated by the court or by deposition within 30 days of the exclusion of the end of trial, whichever is later. The excluded testimony will be held inadmissible.