Louisiana Civil Procedure

Question 1

Sources of procedural rules

Answer 1

Code of Civil Procedure & local rules of court (but can’t contravene the Code)

Question 2

Counting days

Answer 2

• Begin counting on the day after the event that prompts the time delay - the day of the event is not counted.
• You do count the last day of the period. So if it’s due in 20 days, day 20 is the deadline. But if that falls on a legal holiday or weekend, then you get until the next day that isn’t a legal holiday.
• But, you DO count intervening legal holidays (including weekends) unless it’s less than a seven day period.
• Exclusive of legal holidays - weekends not counted
• REMEMBER - you can start counting on legal holdiays, just can’t end there (unless exclusive of legal holidays)

Question 3

Trial courts

Answer 3

• Parish and city courts - limited jd, which is concurrent with the district ct. Generally, parish ct jd capped at $20K, city ct at $15K.
  
  • Parish and city cts can’t hear suits re title to immovable prop, right to public office , where P is asserting a constitutional right, family law, where state or political sub is a D, succession, interdiction, habeas corpus
  • City courts can’t hear tutorship, emanciplation, partition proceedings
• Small claims courts, justice of the peace courts, family courts - most limited jd.
• Appeals from all these - go to appeals ct (not dist ct)
• District cts - trial cts of gen jd. No monetary cap, no subject matter limits.

Question 4

Courts of Appeal

Answer 4

• 5 in LA (1st - 5th Cir.) - BR, Shreveport, Lake Charles, NO, Gretna
• 2 types of jd - traditional appellate jd (hear appeals from final judgment, ct has to exercise jd over the case), and supervisory jd (app ct can exercise this over an inferior ct at any point in the proceeding)
• Supervisory jd - party can file an application for supervisory writs with the app ct, asking ct to exercise supervisory jd over a particular question. Discretionary.

Question 5

Louisiana Supreme Court

Answer 5

• Ct of certiorari - not much it MUST do
• 3 types of jd
  (1) supervisory - discretionary auth to review any decision by any ct in LA
  (2) original jd over lawyer disciplinary proceedings
  (3) Limited appellate jd - ct MUST take these: Appeal of right directly to S Ct where a statute has been declared unconstitutional or the death penalty has been imposed.
• Writ denied means ct declining to exercise jd - not a tacit affirmance.

Question 6

Subject matter jurisdiction

Answer 6

• Does ct have authority to hear the case & issue a binding valid judgment? Focus on object of the suit. Not as impt in state courts b/c state dist cts are general jd.
• *Ct issues a judgment w/o jurisdiction = void ab initio, an absolute nullity
• *SMJ can’t be waived by the parties or the ct
• Amt in controversy - Look at amt of P’s good faith demand when ct has a monetary cap – doesn’t include costs, atty fees, etc.
• Also don’t count amt of a reconventional demand (counterclaim) or a cross claim unless it’s compulsory (reconventional demand would be barred by res judicata in a later suit)
• If there’s an incidental demand that exceeds jd, parish or city ct has option to transfer to a different ct w/ jd. When reconventional demand is compulsory, court MUST transfer the action to a ct of proper jd. (Art. 4845)

Question 7

Exception

Answer 7

• an objection to the suit that is brought usually at the outset. Like a 12(b)(6). Saying ct can’t proceed bc lack of jd, or the suit’s prescribed, etc.
• Declinatory exception – must bring at outset of case or it is waived - one type is exception of jurisdiction.

Question 8

Ways a LA ct can acquire personal jd over a party

Answer 8

• presence, domicile, consent, conduct
• Presence - person is present & served with process. Entities – serve registered agent for service of process. Non-resident comes to state & is involved in accident – LA SoS is designated to be agent for service of process
• Domicile - parish where person has his habitual residence. Incompetents & if you can’t find person who lives in state - petition ct to have atty appointed to be served & stand in that person’s shoes – curator ad hoc
• Consent - ct can have personal jd over person who consents, unlike SMJ. Person who files suit consents to jd. D can object to personal jd.
• Conduct - Not present in state, not an absentee subject to SoS’s method of service. Minimum contacts such that exercising jd over that party wouldn’t offend traditional notions of fair play & substantial justice (Int’l Shoe). LA adopted Long Arm Statute.

Question 9

Personal jurisdiction over non-residents

Answer 9

• specific personal jd – asserted by virtue of conduct undertaken in state from which cause of action arises.
• general jd – ct may exercise personal jd over nonresident on any basis consistent w/ LA & US const. As long as consistent with due process
• Distinction btwn manufacturer & distributor. Mnfrs = foreseeable that things you are putting into stream of commerce could cause harm in different states.
• if you are good under the constitution, you are good under the long arm statute. But you have greater likelihood of success under specific jd b/c it’s more concrete & less amorphous.
• Contract vs. products liability case – contracts add to foreseeability b/c you contracted w/ someone in state. Your product didn’t just wind up in LA.

Question 10

Test for Due Process analysis of personal jurisdiction

Answer 10

• *Test for DP analysis: When a nonresident who has purposefully established contacts & relationships w/ forum state contests assertion of personal jd, court must analyze (1) the quality and nature of the contacts, (2) the relationship among defendant, the forum, and the litigation, and (3) evid presented by the nonresident of facts militating against the exercise of jd, and must determine whether exercise of jurisdiction is reasonable.

Question 11

Tests for specific and general personal jurisdiction

Answer 11

• Specific jd – (1) activity purposely directed toward the forum state, case arises out of that activity, (2) fairness
• General jd – (1) continuous & systematic presence in the state, (2) fairness considerations (with presumption of personal jd and burden shift to D to show that jd is unreasonable notwithstanding minimum contacts)
• 5 factor test to determine whether assertion of personal jd comports w/ notions of fair play & substantial justice: (1) burden on the D, (2) forum state’s interest in the dispute, (3) plaintiff’s interest in obtaining convenient & effective relief, (4) judicial system’s interest in obtaining an efficient resolution of controversies, (5) state interest in fostering fundamental substantive social policies

Question 12

Jurisdiction in rem

Answer 12

• Way for courts to establish jd over non-residents
• Property as object of suit, owned by non-residents
• Ct has to be otherwise competent in order to exercise jd (i.e., must have SMJ, too)
• Sue in the parish where the prop is located
• Ct can issue binding judgment that can decide the property interests

Question 13

Ways to get jurisdiction over insurers

Answer 13

• LA company
• Foreign company authorized to do business
• Direct action statute

Question 14

Direct Action Statute

Answer 14

• Can sue insurance company directly w/o prior judgment agst the insured, as long as conditions are met:
  
  • Must be a liability policy (not indemnity)
  • Written or delivered in LA or that provides coverage for accident that occurred here, even if not written/delivered in LA.
• P need not even name insured as D IF (1) insured is insolvent, (2) D is uninsured motorist carrier, (3) D can’t be served or is dead, or (4) its a tort claim btwn kids and their parents/spouses.

Question 15

Difference between liability and indemnity insurance policies

Answer 15

• Liability policy – one where insurer has duty to defend when there is potential for liability under policy (like most vehicular policies).
• Indemnity policy – one that obligates insurer to pay a claim only after insured has paid or is compelled to pay something.
• Liability policy kicks in before liability is even decided.
• 4 factor test for determining whether you can proceed under direct action statute:
  (1) whether policy is a liability or indemnity is question of the parties’ intent
  (2) If ambiguous, err on the side of liability
  (3) Under DA statute, a tort V can bring suit for personal injury or prop damage from tortfeasor’s insurer, regardless of label (liability or indemnity) (i.e., if your insured has hurt me or my stuff, don’t care whether it’s a liability or indemnity policy, you can use DA statute)
  (4) For damages other than personal injury or property, party may proceed under DA statute unless the policy unambiguously expresses intent to be indemnity policy
• Only time you can’t sue under DA statute - when it’s something other than PI or corporeal prop and the policy is unambiguously an indemnity policy

Question 16

Venue - general overview

Answer 16

• Prescription only interrupted if suit is filed in court w/ proper venue and served. If not, prescription still runs.
• Venue – parish or judicial district where action can be brought
• Premised on the domicile of the D. Individuals are sued in parish of their domicile. If not domiciled in LA, but resides in state, action must be brought in parish of residence.
• Domestic corps – must be filed in parish where registered office located

Question 17

Permissive Venue Articles

Answer 17

• If you have a permissive venue option and article 42 is out there, too, usually your choice where to bring action. Look first to 42, then look to permissives under 71-77.
• Individual changed domicile – can file in either old or new, for 1 yr unless he filed official declaration of change
• Joint or solidary obligors – can sue in any parish where venue is proper as to any of them under 42.
• Offenses or quasi-offenses (tort claims) – parish where the wrongful conduct or where damages sustained.
• To sequester prop or enforce mortgage, action is proper where prop located
• Actions on open accts = parish where acct originated or services performed
• Contracts – parish where the K executed or where any work or service was, or was to be, performed.

Question 18

Preferred Venue Provisions

Answer 18

• When they apply, they have potential to trump any other venue provisions
• Action agst partners of existing partnership – in any venue proper as to the partnership

Question 19

Venue Conflict Rules

Answer 19

• If there are several potential locations where suit can be brought, Art. 45 provides a hierarchy of preferences in the event venue articles conflict with one another.
• Preferred rules given priority (78-83) - if there is a conflict with any other type (general or optional), preferred rules govern exclusively.
• Conflict btwn the preferred rules or the preferred and general rule - P can choose
• So, if no preferred – you have venue under 42 or permissives, your choice.

Question 20

Non-Waivable Venue

Answer 20

• Like SMJ – can’t be waived by parties or ct.
• Opening succession (must do it where decedent domiciled, or if not domiciled in LA then where immovable prop, if not, then movable)
• Nullity of judgment (in trial court where judgment rendered – even if judgment affirmed on appeal or rendered by appellate ct)
• Annulment or divorce (spouse’s domicile, or place of last matrimonial domicile)
• Emancipation (parish where party is domiciled),
• Interdiction (parish of D’s domicile, if no domicile then where resident, or if not then where he is located).
  • Judgment null for these if rendered in wrong venue

Question 21

Ancillary Venue

Answer 21

• Promote judicial efficiency in cases where cumulated claims involve common questions of fact, but lack common venue for those claims.
• Can cumulate actions (claims) and parties (defendants)
• Art. 463 – 3 part test for when you can bring multiple Ds into same suit. Two or more parties may be joined in same suit, either as Ps or Ds, if: (1) There is a community of interest btwn the parties joined; (2) Each of the actions cumulated is w/in the jd of the ct and is brought in proper venue; & (3) All the actions cumulated are mutually consistent & employ same form of procedure.

Question 22

Change of Venue

Answer 22

• Change of venue can be made (1) when the action was filed in a ct of improper venue, (2) when a party can’t get a fair trial in chosen venue, even though proper, & (3) for convenience of the parties.
• When action brought in court of improper venue, ct can either dismiss case or, if justice requires, transfer it to a ct of proper venue.
• When P doesn’t have sufficient knowledge to ascertain correct venue or acts upon incorrect knowledge and files in wrong venue, case should be transferred. When P knowingly files in wrong venue, dismissal is proper.
• Forum non conveniens – even if suit filed in proper venue, if there’s an available alternative veune that would be more convenient & would better serve interests of justice, ct can (on own motion or party’s) order case transferred to more convenient forum
• P’s choice of forum is entitled to great weight, shouldn’t be disturbed w/o D showing the convenience of all parties and the interests of justice require transfer. Factors: (1) Convenience of parties and witnesses, (2) Access to sources of proof & evidence, viewing of premises, (3) Costs of obtaining attendance of witnesses, (4) Advantages and obstacles to a fair trial.

Question 23

How do you initiate suit?

Answer 23

• To demand enforcement of a legal right, file a petition (LA state court) or complaint (federal) in ct of competent jurisdiction

Question 24

What constitutes a demand for petition purposes?

Answer 24

• LA very liberal. No matter how inartfully drafted, it will be sufficient to interrupt prescription unless it’s gibberish and says nothing

Question 25

3 types of LA civil actions

Answer 25

• Personal – looking to enforce right agst a D irrespective of any property they may own (e.g., car accident)
• Real - Enforce rights of ownership or other right w/ respect to immovable prop.
• Mixed – combination. Seeking to enforce right agst prop & owner, possessor, etc. Like if it’s secured by prop itself, or if obligation grows out of property.
• Why do we care what type? SMJ – some cts don‘t have power to deal w/ actions re immovable prop. Also, venue – controlled sometimes by object of the action.

Question 26

Use of a prescribed cause of action as a defense

Answer 26

• Doctrine – things which are temporary for purposes of attack are permanent for purposes of defense.
• A person who has a right to enforce an obligation also has a right to use his cause of action as a defense. A prescribed obligation (with exceptions) arising under Louisiana law may be used as a defense if it’s incidental to, or connected with, the obligation sought to be enforced by the P.
• Exception: Prescribed cause of action arising under Federal Consumer Credit Protection Act.
• E.g., breach of contract, 10 yr prescription. But they never paid you, 3 yrs to sue for fees due for professional services. They wait 5 yrs to sue for breach, you can no longer sue for fees. But, you can use prescribed cause of action as defense. Can’t recover on it.

Question 27

What if party dies while action pending or before action is brought?

Answer 27

• Art. 426 - When you die, any claim that you have or right to enforce obligation is just as much a part of your estate as your stuff
• Heritable – the right itself can be passed directly down to another or be transferred to another.
• An action does not abate on the death of a party. Only exception - action to enforce right or obligation which is strictly personal.
• Strictly personal action – action that by its nature is personal to holder of the right, generally can’t be brought by anyone else. If action not brought yet, then it dies w/ you. But if action already instituted, it’s a matter of substitution.
• Personal injury rights are strictly personal, while the action to enforce the right is not strictly personal.
• When a party dies during pendency of action which is not extinguished by his death, his legal successor may have himself substituted for deceased party, on ex parte written motion.
• complaint w/ medical bd tantamount to instituting action

Question 28

Liberative prescription

Answer 28

• bars an action as a result of inaction for a period of time
• interrupted by filing suit in ct of competent jd & venue. If wrong venue, prescription only interrupted if Ds served w/in prescriptive period.
• Suit filed agst one joint or solidary obligor interrupts prescription agst all others & interruption continues as long as that suit is pending.
• Interruption - period begins to run anew from last day of interruptive event.
• Suspension - clock stops, but if it starts again you only get remaining time. Temporary pause.
• Not relevant that P fails to state a cause of action. If it can be fairly classified as a pleading stating a demand, it interrupts.
• When several parties share a cause of action, suit by one interrupts as to all. But not when separate & distinct (even if they arise out of the same transaction)

Question 29

Relation back through amendment

Answer 29

• An amended petition will relate back to the filing of original petition. You can later bring other claims arising from same facts. Original suit interrupted prescription, so not too late.
• *Art. 1153: When action/defense asserted in amended petition/answer arises out of conduct, trans., or occurrence set forth or attempted to be set forth in original pleading, amendment relates back to date of filing original pleading
• Test re whether amend. should relate back when adding Ds
  
  1. Amended claim must arise out of same transaction or occurrence set forth in original pleading
  2. Substitute D must have rec’d notice of the action such that he won’t be prejudiced in defending on the merits
  3. Sub. D must know (or should have) that but for a mistake re identity, action would have been brought agst him.
  4. Sub. D must not be a wholly new or unrelated D b/c would be tantamount to a new cause of action
• 4 part test re adding Ps
  
  1. same
  2. D knew (or should) of existence & involvement of new P
  3. new & old Ps sufficiently related, not wholly new/unrelated
  4. D won’t be prejudiced in preparing defense

Question 30

Preclusion by judgment

Answer 30

• Party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation
• When parties litigate a case to conclusion (final judgment / settlement), all causes of action are merged into that judgment.
• Two kinds (just like federal) – res judicata (claim preclusion), collateral estoppel (issue preclusion)
• Except as otherwise provided by law, a valid final judgment is conclusive btwn the same parties. Win or lose, P can’t come back & sue on same trans or occurrence.
• Issue preclusion – Identical issue & parties, issue actually litigated & decided, material to judgment = no relitigation of that issue in subsequent action
• Res judicata isn’t a discretionary doctrine - if it applies, no ct has authority to modify it.
• Exceptions to res judicata: (1) extraordinary circs, (2) when 1st action dismissed w/o prejudice, (3) when judgment in 1st action reserved right of P to bring another action

Question 31

Abandonment

Answer 31

• How long an action can sit with no activity before deemed abandoned. Period now is 3 years.
• fail to take any step in prosecution or defense in trial ct
• operative w/o formal order; can get order on ex parte motion
• 2 options if order entered: (1) move to set aside order of dismissal. Then 60 days to appeal. (2) You can skip trial ct & file appeal in ct of appeal within 60 days.
• Discovery counts. But only interrupts abandonment as to the parties you served with that discovery.
• Plaintiff or defendant can take the step.
• Exceptions to abandonment: (1) Failure to prosecute caused by circs beyond P’s control; or (2) When D waives his right to plead abandonment by taking any action in case inconsistent with an intent to treat case as abandoned
• Making compensation benefit payments interrupts abandonment period (inconsistent w/ treating as abandoned)
• Motions to substitute counsel of record – not a step b/c doesn’t move things forward toward resolution.
• Correspondence btwn parties re negotiations to resolve case not enough. Didn’t occur on the record.
• A D can waive abandonment that has accrued by doing something stupid like filing a MSJ.

Question 32

Standing

Answer 32

• action can be brought only by a person having a real and actual interest which he asserts
• Need to be distinguished from public at large to have standing

Question 33

Procedural capacity

Answer 33

• Competent natural persons who have reached age of adult or emancipated minors have the capacity to be sued.
• Unemancipated minors don’t have capacity to be sued. Dad is the proper party to be D, or to sue on behalf of child. If dad incompetent, absent, etc., then ct can allow mom. When both parents not available, or divorced, ct will appoint a tutor.
• Mental incompetents – ct appoints a curator.
• Juridical persons – corp., LLC, partnership. Commercial entity that govt vests w/ capability to sue or be sued. Same rights to participate in litigation.
  
  • P’ship – P is rep by authorized partner. Partners can’t be sued on a p’ship obligation unless p’ship is also joined as D.
  • Unlicensed foreign companies who try to appear in LA ct: if you aren’t licensed here, not organized here. If you want to sue here, must first register to do business in LA
  • If company is in receivership or liquidation, ct appointed receiver or liquidator is appropriate P or D.
  • If a person is simply doing business under a trade name- must sue, or be sued, in his own name on a claim arising out of such business

Question 34

Joinder of Claims

Answer 34

• Joining claims = cumulation. What you can do as a P.
• P may cumulate agst same D two or more actions even though based on different grounds
• 2 or more parties may be joined in same suit, either as Ps or Ds, if there’s a community of interest btwn the parties joined; (means the claims must present same factual & legal issues)
• Improper cumulation - When ct lacks jd of, or when venue is improper as to, one of the actions cumulated, that action shall be dismissed

Question 35

Three forms of procedings in LA

Answer 35

• ordinary proceedings – usual suit, requires citation and service of process
• executory proceeding – allows holders of mortgages to foreclose on prop w/o citation or prior judgment
• summary proceeding – not all the formalities req’d & action moves quickly. Service of pleading required, but citation is not.

Question 36

Cumulation vs. Joinder

Answer 36

• In LA, cumulation is permissive joinder. Joinder in LA = compulsory joinder.

Question 37

Compulsory Joinder

Answer 37

• you MUST join any person: (1) whose absence would prohibit the ct from awarding complete relief to present parties OR (2) he claims an interest in the subject matter and his absence may either (a) impair his ability to protect that interest or (b) subject parties to substantial risk of incurring inconsistent rulings
• factors in Code 642 if necessary party can’t be joined
• TEST to determine if you HAVE to bring the party in -must be an absolute necessity for the protection of a substantial right
• Don’t have to join solidary obligors in the same action. You can demand performance from any one of the solidary obligors then they have to work it out btwn themselves.

Question 38

Class actions

Answer 38

591 A & B
- Numerosity, Commonality, Typicality, Adequacy of Representative, Objectively Definable Class
Then, one of the 4 categories in B
- Prescription is suspended upon filing of class certification for all parties. Runs again starting when a party opts out, is excluded from class, or the class is denied certification

Question 39

Derivative actions

Answer 39

• a person sues for relief on behalf of the company
• Brought by a shareholder, partner, or member to enforce a right of that entity when it refuses to enforce the right on its own
• venue: parish of the corp. / business
• Petition requirements - art. 615. Odd b/c protecting company’s rights, but you have to name the company as a D.

Question 40

Concursus proceedings

Answer 40

• Allows someone who is holding money or property that multiple parties claim an interest in to relieve himself of burden of being custodian & force a determination of who should get it
• Deposits money into registry of the court, then they are relieved of all liability (don’t have to pay any interest anymore) and its up to the court to work out who it belongs too
• Party who invokes concursus CAN claim an interest in money
• Joinder device- joining everyone you think might have a claim to the money
• Venue- any parish where venue would be proper under Art 42 ONLY

Question 41

Substitution of parties

Answer 41

• When a party dies during the pendency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
• Who? those able to bring a survival suit (spouse, children, etc.) or succession rep.
• If legal successor is known and is a resident - summon to appear, must appear w/in 30 days. If non-resident - 60 days.
• If legal successor unknown - 2 publications in parish where action pending and domicile of deceased, 15 days apart, to appear w/in 60 days of publication.

Question 42

Pleadings

Answer 42

• In Book II - ordinary proceedings
• *4 types: petitions, answers, exceptions, written motions.
• In LA (unlike federal) fact pleading, not notice pleading.
• In LA, we want parties to allege particularized facts in support of claims. Heightened standard.
• In pleading fraud or mistake, circs shall be alleged w/ particularity
• If you are seeking special damages (easily quantifiable, such as past lost wages), must be specifically alleged
• signature of an attorney / party is a certification that: (1) no improper purpose (2) Each legal assertion is warranted (3) Each factual assertion has evidentiary support or is likely to have support (4) Each denial is warranted by evid or, for a specifically identified denial, is reas based on lack of info.
• Sanctions for attys - factors to decide: time available to investigate, reliance on the client in support documentation, complexity, whether more discovery necessary, plausibility of the legal view, pro se status

Question 43

Form of petitions

Answer 43

• name and domicile of parties;
• short, clear, concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation;
• address for receipt of service of all items involving the litigation;
• conclude with a prayer for judgment for the relief sought

Question 44

Pleading of damages

Answer 44

• No specific monetary amount of damages shall be included in the allegations or prayer for relief of any demand.
• The prayer for relief shall be for such damages as are reasonable except that if a specific amount of damages is necessary to establish jurisdiction of the ct, the right to a jury trial, the lack of jurisdiction of federal courts, a general allegation that the claim exceeds or is less than the requisite amt is required.
• Not applicable 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 (cases where law deems it appropriate to say exactly how much you are seeking)

Question 45

In forma pauperis

Answer 45

• A person who’s unable to pay costs of ct b/c of his poverty may prosecute or defend a judicial proceeding w/o paying the costs in advance or as they accrue.
• The test is whether the lititgant is actually able to pay the cost. Litigant shows indigent status by submitting an affidavit of poverty. Litigant seeking status fills out affidavit, supporting documentation, then gets another supporting affidavit from another person (but it cannot be applicant’s lawyer).
• In forma pauperis status doesn’t mean that the ct costs never get paid. If judgment rendered in favor of indigent, other party pays costs. If indigent loses, judgment rendered agst him for costs.
• You can proceed as a pauper even though you have a lawyer.

Question 46

Citation

Answer 46

• informs the D that he has been sued and that he must either comply with P’s demands made in attached petition or file a responsive pleading w/in the specified number of days, under penalty of default
• D can waive citation and service by written waiver filed in ct.
• any judgment rendered w/o citation and service is absolutely null

Question 47

Service of process

Answer 47

• citation and petition must be served upon all Ds in action
• Service by Sheriff: Except as otherwise provided by law, service shall be made by the sheriff of the parish where service is to be made or of the parish where the action is pending.
• P has 90 days from filing petition to request sheriff to serve Ds. Failure to request service may result in dismissal of action and could have prescription implications (if bad faith, prescription deemed to have never been interrupted)
• Prescription interrupted by timely filing suit. If there is no service w/in 90 days, ct shall dismiss unless good cause for having not requesting service. However, the suit interrupts prescription unless ct finds failure to request service was due to P’s bad faith. In that case, interruption of prescription is considered never to have occurred.

Question 48

Service by a private person

Answer 48

• When sheriff hasn’t made service w/in 10 days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, on motion of a party the ct shall appoint a non-party whom the court deems qualified to make service of process in the same manner as sheriffs. Licensed private investigator shall be presumed qualified.
• In serving notice of a summary proceeding or a subpoena which is related to the proceeding, on motion of a party the court shall have the discretion to appoint any person over the age of majority, not a party and residing within the state, to make service of process, notices, and subpoenas in the same manner as is required of sheriffs, w/o first requiring the sheriff to attempt service.

Question 49

Serving non-residents

Answer 49

• RS 13:3204 – in suits under Long Arm Statute - for people you need to serve that don’t reside here. Send it by certified mail or registered mail or by commercial courier.

Question 50

Types of service

Answer 50

• Either personal or domiciliary service, both have the same effect. Service, whether personal or domiciliary, may be made at any time of day or night, including Sundays and holidays.
• Personal service is made when a proper officer tenders the citation or other process to the person to be served. May be made anywhere the officer making the service may lawfully go to reach the person to be served.
• Domiciliary service is made when a proper officer leaves the citation or other process at the dwelling house or usual place of abode of the person to be served w/ a person of suitable age and discretion residing in the domiciliary establishment.

Question 51

Service on legal entities

Answer 51

• Domestic/foreign corps and LLCs – gen. rule, personal service on the entity’s designated agent for service of process.
• If the person can certify that a diligent effort has been made and service hasn’t been accomplished, you can go through procedures to bypass. Can serve personally an officer, director, or manager. Can serve personally an employee of suitable age and discretion where the company regularly conducts its business. Or, if long-arm available, can do that. Then, if all else fails, the secretary of state.
• Partnerships - Service on a partnership is made by personal service on a partner. When officer certifies he is unable, after diligent effort, to make service in this manner, he may make personal service on any employee of suitable age and discretion at any place where the business is regularly conducted
• Secretary of state - service is complete when service is made on SoS. So, if you have a return that shows SoS office was served, service done, and there will be a presumption that the SoS forwarded it along.

Question 52

Service on political entities and public officers

Answer 52

• If you are suing the state, or a political sub, make service at entity’s office by personal service on chief exec officer. If not available, may serve employee of suitable age and discretion.
• If proper D is the actual person in their official capacity, you personally serve him at office. Then, an employee of suitable age and discretion.
• If there’s no established office, then service allowed wherever the CEO may be found.

Question 53

Sheriff’s return of service

Answer 53

• filed in the record
• considered prima facie correct
• rebuttable presumption of correctness may be challenged through a declinatory exception of insufficiency of service of process

Question 54

Service of Pleadings After the Petition

Answer 54

• Most pleadings don’t need to be served by sheriff in formal way after original service. Usually, can be served by mailing, sending, or delivering to the atty of record or the person at last known address.
• BUT if a pleading or order sets a court date, then service shall be made either by registered or certified mail or as provided in Art. 1314, or by actual delivery by a commercial courier.

Question 55

Voluntary dismissal

Answer 55

• If D hasn’t made an appearance, a voluntary dismissal may be granted. Once appearance is made, ct has option to dismiss it with prejudice.
• If you voluntarily dismiss suit, it is as though the interruption of prescription never occurred.

Question 56

Involuntary Dismissal

Answer 56

• (1) A judgment dismissing an action shall be rendered upon application of any party, when P fails to appear on trial day. In such case, ct shall determine whether judgment of dismissal shall be w/ or w/o prejudice.
  (2) if P appears at trial and puts on a case, but doesn’t present prima facie evidence, D can move for dismissal at end of P’s case,
  (3) when P fails to request service on the D within 90 days of filing the action.

Question 57

With & Without Prejudice

Answer 57

• with prejudice has effect of final judgment;

- w/o prejudice is not a bar to another suit on same cause of action

Question 58

Default Judgment

Answer 58

• Two step process. Get judgment of default under 1701, then confirm it under 1702, then 1703 describes the effect of that judgment.
• 1701 called a “preliminary” default – you go to ct and either make an oral or written motion that asks ct to enter judgment of default. As long as ct records show that petition was filed, and there was service, etc., then ct will enter default judgment.
• Then you have to come back to ct after a certain amt of time has passed and get it confirmed – not automatic. Bc you still have to come in and put on your prima facie showing, and only upon the showing will the ct confirm the default.
• If not appeared, the prelim default doesn’t have to be served, can wait 2 days excluding legal holidays, then put on your case. If appearance made then no further action taken, you get prelim default. B/c there is an appearance, default must be mailed by certified mail at least 7 days excluding holidays before confirmation.
• A default judgment is no different from that demanded in petition. Amt of damages awarded is the amt proven.
• Service of default judgment (final judgment) – If D served personally and didn’t appear, clerk mails to address. If not served personally (SoS), sheriff must serve w/ personal or domiciliary service.

Question 59

Once a default judgment is confirmed, what can a D do to reverse it / nullify it?

Answer 59

• Move quickly enough and you can move for new trial
• Can file action for nullity of judgment
• Appeal the default judgment – problem is that you would be bound by the record created in the trial ct. You would be trying to show (a) that there was a defect in the procedure or (b) that there was a defect in the quality of the prima facie evidence. But you couldn’t add witnesses or documents.

Question 60

Types of Exceptions

Answer 60

• See code 921-934
• Declinatory – Challenging in some way the jurisdiction of the ct. Looking to decline to litigate this action in this ct.
• Dilatory – retards the progress of the action.
• Peremptory – function of the peremptory exception is to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. Usually fatal defects, can bring them at any stage and you can bring them in an appellate ct in certain situations.
• Declinatory and Dilatory can be waived if you don’t assert them. You have to bring your declinatory and dilatory ones together, before you request any relief from the ct. Neither one tends to defeat the action.
• If any exception is peladed before or in the answer, the ct must resolve prior to trial. But, peremptory after you submit your answer, it can be decided at the trial. Impt b/c if you wait you could be locked in to proceeding to trial.

Question 61

Using evidence to support or controvert exceptions

Answer 61

• Parties may introduce evid to support or contravert any declinatory or dilatory exceptions when the underlying grounds for the exception aren’t apparent from the petition, citation or return of service
• Exception of no cause of action is treated differently – neither party can offer evid concerning the peremptory exception of no cause of action. If the petition doesn’t disclose a cause of action, it should be apparent from the 4 corners.

Question 62

Effect of sustaining exception

Answer 62

• Ct will normally give P time to cure the deficiency, if possible, by amendment. Sometimes amendment is futile (e.g., prescription), so it will be dismissed.

Question 63

Function of exception of no cause of action

Answer 63

• Test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evid may be introduced to support or controvert the objection that the petition fails to state a cause of action. Ct reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the P is legally entitled to the relief sought.

Question 64

Partial exceptions of no cause of action?

Answer 64

• If you have several theories based on a single transaction, then you can’t have a partial exception, but if you have separate and distinct causes of action, then you can have a partial exception.
• Cause of action - the operative facts which give rise to P’s right to judicially assert the action against D.

Question 65

Motions generally

Answer 65

• Request for some form of relief.
• Most have to have a rule to show cause – D needs to come to ct and show cause why motion shouldn’t be granted.
• Some motions can be granted ex parte – test is that you have to be clearly entitled to the relief requested (e.g., to enroll counsel)

Question 66

Motion to Strike

Answer 66

• When there is a defect in the pleadings (e.g., a damage amt in delictual action; redundant material

Question 67

Motion for Judgment on the Pleadings

Answer 67

• requests ct to enter judgment based solely on the allegations in the pleadings w/o extraneous evidence
• Ct will assume all undenied facts to be true
• Trigger for ability to file is the joining of the issues – means petition has been filed and the answers have been filed. Then you can file the motion for judgment on the pleadings. (Issue has or has not been joined)

Question 68

Motion for Summary Judgment

Answer 68

• Telling ct there are no genuine issues of material fact in dispute, entitled to judgment as a matter of law – nothing for a factfinder to do. Directed at a P’s claims or D’s defenses.
• D can file at any time. P has to wait until after answer filed.
• Initially, BOP rests w/ movant asking for SJ. But if movant wouldn’t have BOP on all essential elements of a claim at trial, movant isn’t required to negate all those elements. Movant can point out the absence of factual support for an element and burden shifts to nonmoving party to support.
  
  • E.g., D can say that the P has no evid for damages. Doesn’t have to prove lack of damages. Shifts burdent to P to produce support for that element.
• Affidavits - Often used to support or defend MSJs. Must be based on personal knowledge of affiant (saw, heard, or perceived w/ own senses). Must contain facts that are admissible at trial.
  
  • E.g., If P has alleges light was red in petition, & D files MSJ w/ affidavit saying light was green - Nonmovant can’t just say see my petition, must come forward w/ counter affidavit or some other proof that shows specific facts demonstrating that there is a genuine issue for trial. Can’t just rest on allegation.

Question 69

Motion for Judgment on Offer of Judgment

Answer 69

• mechanism that can be used to penalize parties for not accepting offers to settle that are w/in zone of reasonableness.
• At any time more than 20 days before trial, w/o any admission of liability, any party may serve upon adverse party an offer of judgment for purpose of settling all claims.
• If final judgment obtained by the plaintiff-offeree is at least 25% less than the amount of the offer or if the final judgment obtained against defendant-offeree is at least 25% greater than amt of offer, offeree must pay the offeror’s costs, exclusive of atty fees, incurred after offer was made. E.g., D offers $1000 to settle, P says no. Then P only recovers $650 at trial, that’s under 25% less, D can go for costs (not fees).

Question 70

Special Motion to Strike

Answer 70

• Accelerated procedure for dismissing a suit brought in retaliation for someone exercising their right to free speech on a matter of public importance.
• If w/in 60 days of filing of petition one of these is filed, ct has to hear and decide that motion w/in 30 days of filing, and all discovery is stayed while that motion is pending.
• P must show a probability of success on the merits.
• Prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

Question 71

Answer

Answer 71

• D’s response to allegations made in petition.
• Timing – 15 days after service as a general rule to answer a petition. 10 days if suit is filed in city or parish court. 30 days if the petition was served under the long arm statute.
• Can always ask ct for extension of time to answer petition.
• As long as a default judgment has not been confirmed, you can still come in and file the answer.
• If you decide to pursue exceptions, you have 10 days after overruling or referral to merits of exceptions to file answer. Alternatively if amended petition is filed & served, you have 10 days after service of the petition.
• D must admit or deny each of the allegations.
• If you are bringing defenses, must state facts upon which defenses are based.
• Answer must include any affirmative defenses – one that provides a complete defense to P’s claims.
• Art. 1005 – illustrative list of types of defenses that are affirmative and must be pled in the answer.
• Must include a prayer for relief.

Question 72

Incidental Actions

Answer 72

• A demand by someone other than P that is ancillary to the main demand. 4 types: Reconventional demand, Cross claim, Intervention, Third Party Demand
• Can be included in answer, but can also be done by petition.
• As long as demand is being filed prior to expiration of time to answer, don’t need leave of ct.
• An incidental demand is not barred by prescription or peremption if it was not barred at time main demand was filed and is filed w/in 90 days of date of service of main demand or in the case of a third party D w/in 90 days from service of process of third party demand.
• Jurisdiction - (i) jd for incidental demand must be proper on its own, and (ii) it must utilize the same form of procedure as main demand
• Severance – (1) At ct’s discretion, trials of principal & incidental actions may be severed so they are tried separately (2) A party may bring incidental demands separately, EXCEPT: (i) If cause of action arises out of same transaction or occurrence as principal demand, must assert in reconventional demand or barred by res judicata, (ii) D need not file 3rd party demand unless 3rd party had a defense to principal demand that they couldn’t assert b/c D failed to bring them in.
• Dismissal - If P voluntarily dismisses principal demand after an incidental demand is filed, incidental demand moves forward independently. Must be tried or dismissed separately

Question 73

Reconventional Demands

Answer 73

• Gen. RULE – D may assert in a reconventional demand any cause of action they have agst the P in principal action, even if it lacks any connexity to the main demand (unrelated claim)
  
  • E.g. – Two parties meetfor lunch to discuss a breached contract, on the way out, one hits the other w/ car. Could bring both the contract and tort claim at once.
• If claim arises out of same transaction or occurrence as principal action, it must be brought as a reconventional demand (“compulsory reconventional demand”) or else be barred by res judicata
• Petition of the claim must be served in same manner as any other petition, but citation is unnecessary, b/c the party should know they are a part of a suit
• New parties may be joined by D to original action by a reconventional demand, but citation IS req’d in these circs.

Question 74

Cross-Claim

Answer 74

• Gen. RULE – A party MAY assert claim agst a co-party that arises from same transaction or occurrence that is subject matter of principal action, reconventional demand, or relates to any party that is subject to the principal action
• Service of petition is necessary, but citation not necessary
• Cross-claimant may also bring persons other than those made parties by the principal action

Question 75

Intervention

Answer 75

• Gen. RULE – Device permits third persons w/ an interest in a pending lawsuit to intervene by:
  (i) joining w/ P in demanding same or similar relief agst D
  (ii) joining w/ D in opposing plaintiff’s demand; or
  (iii) opposing both P & D
• Intervenor must accept the principal action as they find it - they are foreclosed from objecting to the form of action, jd, or venue, defects, etc.
• With Seized Property/Assets - Those with interest in property or assets (creditors) may intervene up until time of judicial sale of seized property or sheriff’s sale of the assets.

Question 76

Two ways to avoid prescription after claim has prescribed

Answer 76

(i) “relation-back” under 1153

(ii) Interruption of prescription by suit against a joint or solidary obligor under Code 1799/3053

Question 77

Third-Party Claims

Answer 77

• Gen. RULE – Enables D in principal action to bring in any person, including a co-D, who is warrantor or may be liable to them for all or part of the principal demand
• P may assert any claims against the third-party D arising out of or connected to the principal demand
• P, in the principal action, can likewise third party any person who is a warrantor or may be liable to them for all of part of the demand

Question 78

Amended Petitions vs. Supplemental Pleadings

Answer 78

• Amended Petitions – Gen. RULE – So long as claim relates back to original petition and relates back to the original transaction or occurrence, amendment to petition will be allowed
• Supplemental Pleadings – Gen. RULE – Unlike a claim that relates back to original transaction or occurrence (i.e. amended petitions), these relate to new, novel claims that developed subsequent to the original claim or transaction / occurrence

Question 79

Discovery generally

Answer 79

• Evidence is developed, usually outside presence of ct (unless motion to compel)
• Can see any nonprivileged info that is relevant to the subject of the lawsuit. Doesn’t need to be admissible info – as long as request is reas calculated to lead to discovery of admissible evid. Relevant to the case.
• Signature on requests signifies that the requests are in compliance w/rules, not using for improper purpose, not unreasonably expensive, etc. Violations can mean sanctions

Question 80

Privilege

Answer 80

• Usually can’t compel production of priv docs or disclosure of priv info. Seeking this is improper.
• Can’t seek to invade atty work product – when a writing or electronic info is prepared by an adverse party, lawyer or agent in anticipation for litigation or prep for trial, you can’t discover the info unless you can show denial of info will unfairly prejudice you or create undue hardship.
• Undue hardship test can’t be used to compel WP that is the opinions, mental impressions of the lawyer.
• When you withhold docs under priv, you create a priv log. Opponent shouldn’t be req’d to take your word for it. Identifies with reas particularity the doc that has been withheld.
• A party is always entitled to a copy of a party’s statement. E.g., an employee injured at work and employer took a statement, you can always get a copy of the statement even if it was taken by the lawyer.
• BoP lies with the party who is asserting the priv, not the one who is seeking the document. Then burden shifts to show that you can’t obtain the info elsewhere.

Question 81

Inadvertent Disclosure of Privileged Info

Answer 81

• Disclosure of priv or WP information doesn’t operate as a waiver if the disclosure is inadvertent and is made in connection with litigation or proceedings, and if the person entitled to assert the privilege took reasonably prompt measures, once the holder knew of the disclosure, to notify the receiving party of the inadvertence of the disclosure and the privilege asserted. Once notice is received, receiving party shall either return or promptly safeguard the inadvertently disclosed material, but with the option of asserting a waiver.
• Doesn’t constitute a waiver of priv if you give notice to the other side w/in reas time.
• If it is clear that the materials you received are privileged, you are under an affirmative duty to return or safeguard the materials and notify the producing party, but can still claim waiver.

Question 82

Testifying Experts

Answer 82

• Can use interrogatories, requests for production, interrogatories, etc. to discover facts and opinions known by the experts. Entitled to know their qualifications and how they will testify.
• Ct m ay order expert to provide a written report to adverse party w/ the expert’s opinons and the basis and reasons for those opinions and any data or other info used in reachig those conclusions. May also require it to include any supporting exhibits, the expert’s qualifications, including publications, the expert’s compensation in case, list of other cases where the expert testified in last 4 yrs.
• Remember that experts don’t fall under the cloak of priv. So, tell your expert not to put things in writing. If he sends you a stupid email saying “I don’t really believe this, but I’ll testify to it” that’s not privileged.
• Deposition is taken after the expert’s report is provided

Question 83

Challenging Expert Testimony

Answer 83

• Can challenge whether he is an expert at all.
• Can challenge his methodologies, and file a Daubert motion to exclude the expert testimony. The motion must be filed at least 60 days before trial and specify the basis for the challenge.

Question 84

Non-Testifying Experts

Answer 84

• Someone to consult with the help discover your case
• Different discovery rules apply.
• Generally, discovery relating to the opinions and communications with a non-testifying expert isn’t discoverable unless the party seeking can show exceptional circs where it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
• Similar to the rules re WP, because the expert is retained in anticipation of litigation or for trial prep.

Question 85

Protective Orders

Answer 85

• Upon motion, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including illustrative list in Art. 1426
• Protective orders limit or prohibit the disclosure being sought.

Question 86

Deposition to Perpetuate Testimony

Answer 86

• Depositions that you use in place of testimony. You take and plan to file into the record at trial in lieu of having that W testify. Before a lawsuit is filed.
• Have to conduct the depo the same way you would at trial (questions, objections are the same)
• Have to get a court to order it. Must file a verified petition.
• Must serve a notice w/ petition on each expected adverse party at least 20 days before hearing re the order you seek.
• If there are exigent circs (on deathbed) – ct may grant the petition and sign the order ex parte immediately.

Question 87

Deposition During Action

Answer 87

• Taken for purposes of discovery
• Any party can take depo of any person
• Can take them at any point in the case. Only exceptions (1) not after discovery cutoff, (2) must get leave of court to take it within 15 days after service of the suit unless the D has already initiated discovery or P has given special notice that the deponent is about to leave the state and will be unavailable.

Question 88

Deposition After Trial

Answer 88

• Can arise in 2 scenarios:
  
  • Judgment creditor after trial needs it to execute a judgment. On any matter re the debtor’s property.
  • Perpetuate testimony for appeal or remand

Question 89

Compelling attendance at deposition

Answer 89

• Depo of LA resident – can only require that person to attend in the parish of his residence or where employed or where transacts business in person or where the ct orders.
• IF there is a non-resident deponent (temporarily in the state), can be compelled to attend in any parish where served with a subpoena or any place ordered by the ct.
• For a non-resident not present in the state: Letters rogatory – apply to a foreign court for an order directing that deponent to be deposed in the foreign jurisdiction. Can’t be compelled to come here, but you can get an order that compels the attendance of the deponent.
• If you are a party to the suit, you do a notice of depo – includes name and address of deponent, IDs any materials that you want him to bring to the depo. You don’t have to file it with the ct.
• Every depo will have a notice of depo. The only question is whether you also need to subpoena the deponent.

Question 90

How to get production of documents at a deposition

Answer 90

• if it’s a party, just include RFP with the notice of depo.
• Non-party – include a subpoena duces tecum with the subpoena to get presence, served in the same manner as a citation.

Question 91

Objections during depositions

Answer 91

• Counsel is free to raise objections in depo, they will be noted for the record, but usually don’t have to.
• Objections except for those that could have been cured if promptly made are reserved for trial.
• Ones you have to make or they are waived – form of the question or answer (leading, compound); errors or irregularities re manner of taking depo; the oath or affirmation; the conduct of the parties; errors that could have cured the problem if promptly raised
• Objections to relevance – usually don’t have to bring up in depo, reserved for trial.
• In making your objection – not supposed to argue or engage in a “speaking objection” where it’s like leading the W. Usually supposed to continue on, have him answer. In LIMITED circs, the atty can instruct the deponent not to answer the question:
  1. To protect privilege (what did you and your lawyer discuss?)
  2. If a ct has ordered a limtitation on evidence
  3. Harassing or repetitious questions
  4. Not reas calculated to lead to discovery of admissible evid
• The last 2 are tenuous grounds to instruct a W not to answer.
• Lawyers can move to end a depo if you think your client is being harassed. For abusive conduct you can end it and move the court to terminate.

Question 92

Deposition on Written Questions

Answer 92

• Type the questions, give to ct reporter, they read questions and deponent answers.
• Not done often

Question 93

Telephonic depositions

Answer 93

• All parties have to agree or ct has to order a depo be taken over the phone or similar way.

Question 94

Deposition of an Organization

Answer 94

• In notice of deposition, the party designates with reasonable particularity the matters on which examination is requested. The organization shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.
• Give a 1442 notice that says you want to depose and organization, and invites an org to designate a deponent or deponents that can testify as to an attached list of topics.
• Person doesn’t have to have firsthand knowledge – they should go and learn about the topics. Because it’s deposing the company, not the individual.

Question 95

Interrogatories

Answer 95

• Written questions between parties only
• Can be served at any time, even with the petition.
• Limitations on how many you can propound. 35. But you can ask the ct for 35 more (ex parte motion). After that, you have to show good cause at a contradictory hearing.
• Must answer ROGS or object (and state grounds). In wriitng, under oath.
• Usually have 15 days to respond to ROGS unless they are served with the petition, then you have 30 days.
• Acceptable under some circs to direct your opponent to documents that contain the answer in lieu of answering. Can only do that if the burden of deriving the answers is substantially the same for each side.

Question 96

Requests for Production of Documents

Answer 96

• A party can serve this on another party (docs, electronically stored info)
• No number limit.
• Must give a “reasonably accurate description”
• Answers – you indicate objections, you tell what you will produce 15 days afer you get the requests.
• Supposed to indicate and label which docs are being produced in response to which requests.
• For a non-party – can get docs through a subpoena duces tecum. Describes what you want them to produce.

Question 97

Physical and Mental Exams & Requests for Release of Medical Records

Answer 97

• Can compel a party by asking ct to order him to submit to a physical or mental exam when the person’s health is an issue in the case.
• Specify the time, place and manner, who will conduct it.
• Examined person is entitled to receive a copy of the report
• If party who is examined requests the report, there are consequences – you have to turn over any reports related to same condition & waive the physician client privilege in that respect.
• If a person’s medical records are relevant, the other side can request that P sign a release for med records.
• You have 15 days to return the signed release or object. If you sign it and the other side uses it by sending it to a doc, at the same time you must copy the person whose records are being sought. When med records come in, you must provide the person a copy within 7 days.

Question 98

Requests for Admissions

Answer 98

• Must answer w/in 15 days of being served on you or they are DEEMED ADMITTED if the party goes to court and asks for that
• Can send out RFA re a fact or genuineness of a document.
• You can withdraw or amend a response w/ leave of court of it wouldn’t prejudice any party.
• Can serve these any time, even with petition.
• Either admit, deny, or object. Can only deny for lack of info if you can state that you have made a reas inquiry into matter.

Question 99

Supplementing Responses to Discovery

Answer 99

• No general duty to supplement your discovery responses that were complete at the time made, except:
  (1) a party must reas supplement a response to a question seeking the ID and location of potential fact Ws and any proposed expert Ws and the subject matter of his testimony.
  (2) a party must reas amend a prior response if he subsequently obtains info that renders the prior response incorrect
  (3) when ordered by the ct, agreement of the parties, or new requests to supplement the prior responses

Question 100

Use of Discovery as Evidence at Trial or Hearings

Answer 100

• Evidence adduced by parties during discovery may be used at pre-trial hearings
• Depositions: Live testimony is preferred at trial. To use a depo against a party at a trial or hearing, two prerequisites: (1) The party must have been present or represented at the deposition or given a reas notice of the depo, (2) the depo testimony must be admissible under the rules of evid.
• Once the depo is allowed, you can use it:
  (1) To contradict or impeach testimony of deponent as a W
  (2) Depo of party can be used by adverse party for any purpose
  (3) Depo of a W, whether or not a party, can be used by any party for any purpose if: (i) The W is unavailable, (ii) Lives more than 100 miles from courthouse or is out of state, (iii) With notice, under exceptional circs.
• Expert Depositions - Any person may use the depo of expert W for any purpose upon notice to all counsel, who has 10 days to object to the use of the depo and compel live testimony

Question 101

Motion to Compel

Answer 101

• Court can order other party to file full and complete answers
• Court can also award reasonable expenses on the losing party, including atty fees, unless unjust

Question 102

Sanctions for failure to comply with discovery order

Answer 102

• Available for court to impose for wilfully disobeying an order compelling discovery.
• Include: finding a fact to be established, striking pleadings, dismissing claims, entering default judgment, contempt of ct
• Sanctions can also be imposed w/o a prior court order when there has been a complete failure to respond to a discovery request. But contempt is not available here.
• Depositions - Complete failure to attend – can get sanctions under Art. 1473.

Question 103

Pretrial conference

Answer 103

• Status meeting w/ court used to narrow issues, check in with the court, etc.
• Court enters an order that memorializes what happened at the conference.
• Sanctions available for failing to participate.

Question 104

Consolidation of cases

Answer 104

• If there are cases that involve the same issues of law and fact pending in the same ct, the section where the first filed case is pending may consolidate the cases.
• Must be finding that common issues of fact or law predominate over uncommon ones.
• No consolidaton if it would confuse jury, give a party an advantage, or prejudice a party

Question 105

Separate trials for liability, insurance coverage, and damages

Answer 105

• Court may, with consent of parties, order separate trials on the issues of liability and damages if it would facilitate disposition of the case or would be in the interest of justice
• Could be cheaper – if you get the threshold issue of liability out of the way, could encourage settlement quicker.
• If there is a severance, usually the same jury will preside over the damages trial.
• Court can order with consent of parties a separate jury trial on damages before liability issue.
• Court and parties may agree to separately try issues of insurance coverage, unless it overlaps w/ liability or damage issues. Issues of insurance coverage are always decided by the ct.

Question 106

Continuances

Answer 106

• Two types:
  
  1. Discretionary – ct finds there are good grounds for continuing the trial.
  2. Peremptory – mandatory for a court to continue a trial when a party is unable to obtain material evid or a material W is absent (w/o you sending W to Tahiti, of course).
• If there is an absent material W, the adverse party can prevent the continuance by requiring the party seeking the continuance to state in an affidavit the facts he intended to prove through the absent W, and then admitting that the W, if present, would testify as stated in the affidavit.

Question 107

Subpoena to Secure Witness Appearance at Trial

Answer 107

• Issued either by judge’s office or clerk of court’s office. Served the same way as a citation.
• If it is a party, you serve the subpoena on counsel of record
• If the witness disregards subpoena, punishable by contempt.
• Subpoena can be used to compel a witness ANYWHERE in the state. But, if the W lives or works outside of the parish you are in and more than 25 miles from courthouse, you must prepay and send with the subpoena certain statutory fees and expenses. If this is not done, the witness is under no obligation to appear.

Question 108

Subpoena Duces Tecum

Answer 108

• You can couple an attendance subpoena with a SDT to bring with them documents and things.
• Have 15 days to object to whatever they are asking you to produce.

Question 109

Right to Jury Trial

Answer 109

• In LA, no constitutional right to a jury trial in civil actions. But Code of Civ Pro allows jury trial in majority of civil cases, with a few limitations.
• Jury trial prohibited except where demand exceeds $50,000
• No jury trials for, e.g., probate, partition, mandamus, habeas corpus, injunction, concursus, emancipation, annulment, divorce, custody, visitation, alimony, child support
• Look solely at principal demand, but if there’s a compulsory reconventional demand, it can have a jury even if not principal
• Jury Trial Demand - To reqest a jury trial, a party must timely file both a pleading demanding a jury trial and post a bond to cover jury costs.
  
  • Must be filed no more than 10 days after either service of the last pleading directed to any jury issue or the granting of a motion to withdraw a jury trial demand.
  • Can specify what fact issues you want the jury to decide. If you don’t specify, all will go to jury. If you do specify, a party can ask to add some issues, object to narrowing of issues, etc.
  • Ct will set amt of bond for jury & sets timing of payment, but it must be before 60 days before the trial. If bond isn’t paid, other parties can, w/in 10 days, post bond themselves.

Question 110

Procedure During Trial

Answer 110

• Opening by P (sometimes in non-jury, judge will dispense w/ openings), opening by D, presentation by P, then D, rebuttal by P, closing by P, then D and then rebuttal by P
• Witnesses are under oath and subjected to cross examination
• When in the course of trial a judge rejects some evid – can ask for “offer of proof” or “proffer” some evidence to make a record of the excluded evid for appellate review. This is subject to cross. Proffer can be made in narrative or interrogative form. Can be made during recess or any other time, or by deposition within 30 days

Question 111

Jury Composition and Selection

Answer 111

• Generally , a jury is 12 members (unless parties consent to 6). If 12, then 9 must concur to render verdict. If 6, then 5 must concur for a verdict.
• Selection – voir dire – jurors sworn in and questioned by court and parties.
• Two ways a juror can be stricken / challenged from the pool:
  (1) Peremptory challenge
  
  • Parties are allowed a limited number. In a 12 person jury, each SIDE gets 6 peremtory challenges. In 6 person jury, each gets 3 peremptory.
  • Can be exercised for any reason as long as not discriminating agst any protected class (race, age, gender)
    (2) For cause – no limit to the number. 5 grounds: Juror lacks legal qualifications, Admits he can’t be impartial (or it is evident from questioning), Has relationship with a party or counsel, Has served on previous jury in same or related case, Invokes 5th Am. during voir dire
  • Judge can “rehabilitate” a juror that says he has already made up his mind - get him to say he will follow the law.

Question 112

Procedure During Jury Trial (Judge and Jury Conduct)

Answer 112

• Judge can’t comment on facts in presence of a jury. Grounds for a mistrial for judge to critique quality of the evidence. (E.g., judge saying I don’t think a W’s testimony is credible).
• Judge responsible for instructing jury on the law over during trial and at the end provides jury instructions, which consist of the law applicable to the case that the jury is supposed to apply to the facts. Parties can submit proposed jury instructions. Judge has discretion to not use parties’ proposals.
• Jurors may take notes and can bring them in to the jury room. They can reqest to review testimony or examine evid that was presented. Judge has some discretion whether to have testimony read to them or to actually take evid into the room with them (a transcript, e.g.).
• Right after verdict rendered, juror’s notes destroyed specifically b/c they don’t want them to come up on appeal. Jury room is closed – don’t allow lawyers / parties to challenge jury verdicts based on what happens in jury room.

Question 113

Motion for Directed Verdict

Answer 113

• Jury trial equivalent to motion for involuntary dismissal in bench trial, with some differences:
  
  • Involuntary dismissal only available to Ds. Directed verdict available to both sides.
  • Involuntary dismissal motions – no req’t that judge construe any inferences favorably to the non-moving party.
  • On involuntary dismissal, the standard is whether the moving party entitled under preponderance of evid standard, not “overwhelming” standard for directed verdict
• Can only be made after the closing of adverse party’s evid and state the grounds for motion.
• Should only be granted when evid points overwhelmingly in favor of movant that only one result is possible – all facts and inferences considered in favorable light to the opposing party.
• Trial cts have much discretion in deciding to grant motion for directed verdict. But, motion should only be granted if court believes reasonable people could not reach a contrary verdict.

Question 114

Types of Jury Verdicts

Answer 114

Jury completes a verdict form. Two tyes of forms:

(1) Special verdict form
- Judge submits written questions to jury on each question of fact (with yes or no).
- Jury will assign % of fault and a damage calculation
(2) General verdict form accompanied by interrogatories.
- Jury enters verdict & answers questions explaining verdict
- The questions and answers are more involved.
- Court scrutinizes the verdict with jury’s answers
- When answers to questions in isolation are all consistent w/ one another, but one or more is inconsistent w/ verdict, ct may enter judgment consistent w/ answers or order new trial.
- When answers are inconsistent w/ eachother & the verdict, ct can ask jury to reconsider, or order new trial, but CAN’T enter judgment.

Question 115

Judgment Notwithstanding the Verdict

Answer 115

• After the verdict, post trial motion.
• Like delayed motion for directed verdict – ask ct to displace a jury verdict that you don’t think is supported by evid.
• Standard: whether reasonable persons could have concluded that this was correct verdict
• time delay for moving for JNOV is 7 days exclusive of legal holidays after clerk has mailed or sheriff has served notice of judgment; or, if no verdict was reached, w/in 7 days after jury has been discharged
• Parties often couple JNOV and Motions for New Trial
• When the district ct grants JNOV, at same time ct must conditionally rule upon motion for new trial – app ct may disagree w/ ct’s entry of JNOV and more efficient to know what ct has done on motion for new trial.
• If dist ct conditionally grants new trial, the new trial may go ahead (discretionary), notwithstanding that JNOV has been entered & is going up on appeal.
• When dist ct grants JNOV, other side has 7 days, exclusive of legal holidays, to file motion for new trial.

Question 116

Remittitur and Additur

Answer 116

• Remittitur and Additur as Alternatives to New Trial
• Used by dist ct when it thinks verdict is so excessive or inadequate in damages that a new trial could be ordered on that basis alone.
• With consent of P or D (whoever would be affected adversely), ct can order increase or reduction, but only when the issue of quantum is separate from any other issues in trial.
• Consent doesn’t mean you agree with it – just means you are consenting to procedure that will reform judgment to avoid new trial. Then go argue about it on appeal.
• Verdict can still be appealed, just as though there was no reforming of the amt.

Question 117

Judgment (types, definitions, appealability)

Answer 117

• Determination of rights of parties - interlocutory or final
• Interlocutory judgment - doesn’t determine merits of case, only address preliminary matters. Generally not appealable.
• Final judgment - determines merits of action, may dispose of the case either partially or in its entirety. Appealable.
• Unless designated as “final” (and no reason for appeal delay) by ct, judgments on less than all elements or the merits is a partial judgment and NOT immediately appealable
• Final Partial Judgments (expressly provided by law) - these are immediately appealable
  (i) Dismisses less than all the parties
  (ii) Grants a motion for Judgment on the Pleadings
  (iii) Grants a motion for Summary Judgment
  (iv) Decides a separately decided incidental action
  (v) Imposes sanctions or disciplinary action
• Final judgments must be signed by issuing judge to be appealable. If not, appeal can be perfected once signed
• Amendment – Final judgments can’t be amended to alter substance, but only to either (i) alter language or (ii) correct calculation errors

Question 118

Motions for New Trial

Answer 118

• Upon motion or sua sponte, ct may grant motion for new trial when there’s a valid basis or it must grant new trial if any of the three peremptory grounds are present:
  (i) Judgment appears clearly contrary to the law/evid
  (ii) Discovery of critical evid that was not obtainable w/ due diligence before or during trial
  (iii) Jurors acted improperly or were bribed, so not impartial
  NOTE – Any motion based on these grounds must be accompanied by affidavit from movant
• Timing - Must be filed w/in 7 days of service or mailing, exclusive of holidays/weekends
• Ct must decide w/in 10 days of motion (or longer w/ written permission of parties)
• NOTE – With bench trials, witnesses need not be recalled if their original testimony is transcribed & sufficient, unless further examination is desired
• New witnesses and evidence can be introduced

Question 119

Motions for Nullity of Judgment

Answer 119

• Used to redress a judgment obtained due to vices to form (procedural) or substance
• Action must be brought in trial ct that rendered judgment

Vices of Form
- Remedy procedural deficiencies that have jd or DP implications. Must be annulled if entered in following instances:
(i) Against an unrepresented incompetent
(ii) Court lacks SMJ (this can be raised on appeal)
(iii) Against D that was not properly served or against whom a valid default judgment was not taken
NOTE – D who was present in parish & didn’t attempt to enjoin enforcement can’t seek annulment—acquiesced to proceeding

Vices of Substance
- Judgment obtained by fraud or ill practice
- Must bring action w/in 1 yr of discovery of fraud / ill practice
- Must be asserted in direct action, not on appeal
- Fraud or ill-practice, court must find:
(1) Circs show deprivation of the litigant’s rights, and
(2) enforcement will be unconscionable or inequitable
NOTE – Don’t require actual fraud / tort. Unconscionable to enforce judgment when D thought negotiations were taking place & there was no indication default would be entered.

Question 120

Right to Appeal

Answer 120

• Party to the case
• Also, another person can intervene & appeal, even if P or D doesn’t. Test is whether intervenor can demonstrate same right of intervention as in trial court. Cs also want to see special circs b/c you waited so long.
• Legal reps can appeal judgments when it affects prop they administer, for the benefit of person they represent.
• Can screw up appeal if you confess judgment or you voluntarily & unconditionally acquiesce in a judgment. (If D says I’m tired of fighting and pays. No appeal if shown this was a voluntary & unconditional acquiescence)
  
  • Except if judgment is divisible & appeal only taken as to part of judgment and you acquiesced in diff part.

Question 121

Jurisdiction on Appeal

Answer 121

• Have an appeal of right to S Ct. if the law has been declared unconstitutional or if it’s a death sentence. S. Ct. must look at these – this is where it’s not discretionary.
• Appeal of right to the Court of Appeal – ct has to look at it.
• Can ask the S Ct to review appellate ct’s decision. File an application for writs of certiorari (aka writs of review)
  
  • Must file w/in 30 days of opinion of ct of appeals.
  • 5 writ grant considerations. Must show in writ application: (i) judgment conflicts w/ decision of another ct of app, LA S Ct, or US S Ct, (ii) significant unresolved issue of law, (iii) need to modify / overrule a controlling precedent, (iv) erroneous application of law that affects public interest, (v) ruling is a gross departure from proper judicial proceedings.
• Once an appeal has been perfected, trial ct is divested of jd over all matters under app review. Trial ct retains limited jd to perform only a few, mostly ministerial, tasks. E.g., if ct has granted suspensive appeal – 5 mins after order signed, ct wants to change it to devolutive, it likely can’t bc no jd.

Question 122

Certified questions to LA S Ct

Answer 122

• procedure for federal courts to certify a question to LA S Ct – only a fed ct of appeal or the US S Ct.
• When fed ct confronts an unresolved issue of LA law for which there is no controlling LA S Ct precedent & the issue would be determinative of the case (linchpin issue).
• LA S Ct can choose not to answer it

Question 123

Types of appeals

Answer 123

• Devolutive appeal – the effect of the judgment is not suspended while appeal is ongoing. If there’s a money judgment, while appeal is happening, P can have judgment executed.
• Suspensive appeal – there can be no execution of the judgment while appeal is pending.
• When you take a devolutive appeal, you don’t have to post security.
• Also a difference in the amt of time you have

Question 124

Delays for appealing

Answer 124

• Devolutive appeal – must be taken w/in 60 days from when either (1) the time for filing a motion for new trial or JNOV has elapsed or (2) the clerk’s mailing of a judgment denying a motion for new trial or JNOV.
  
  • So, you get judgment, then you have JNOV & new trial period for filing (7 days exclusive of holidays)
  • If JNOV or new trial filed, time period doesn’t run while motions are pending, only when denied.
• Suspensive appeal – 30 days. Works the same way as time for devolutive appeal.

Question 125

Perfecting an appeal

Answer 125

• Perfected by getting the order allowing the appeal and (for suspensive) posting the security. Within the time delays (30 or 60 days), you get an order of appeal from district court.
• Suspensive – perfected by filing and having signed the order for appeal, but also have to post the security.
  
  • 30 days to perfect appeal is interrupted until dist ct says how much you have to put up in security, then 30 days starts.
• Security for suspensive appeal
  
  • For monetary judgment, security has to be equal to amt awarded plus interest.
  • For good cause, ct can allow appellant to post surety bond, & ct can order bond be up to 150% of judgment
• Time period also interrupted when appellant seeks review of amt of security that was set.

Question 126

Costs of Appeal

Answer 126

• 1. Clerk of court is notified that an appeal has been granted.
• 2. Clerk looks at what cost will be of getting record on appeal. They estimate the cost and serve the estimate on party that’s taken appeal (certified or 1st class mail). Appellant has 20 days to pay costs, then clerk will start preparing record.
• You have three options once you get the estimated costs (within 20 days): (1) Pay it, (2) Challenge it, (3) Ask for an additional 20 days
• Records can sometimes cost $100K or more just to get the case from the dist ct to the app ct. n$3 - $4 a page.
• Return day – date by which record of appeal is to be lodged in ct of app. Trial ct sets return day in the order of appeal as 30 days from date estimated costs are paid (or 45 days if testimony to be transcribed), unless trial ct fixes lesser period.

Question 127

Contesting the Appeal

Answer 127

• Appellee isn’t required to answer an appeal unless he wants judgment being appealed to be modified, revised, or reversed in part or unless he demands damages agst appellant.
• If he chooses to answer, delay is 15 days from later of the return day or the day of actual lodging of the record
• Peremptory Exception Filed in Appellate Court
  
  • Can file one even if you didn’t raise it in dist ct, but proof of grounds for the exception must appear in the record.
  • Prescription exception – you can even ask ct to remand for trial on exception. Otherwise, stuck in app ct w/ record you’ve got.

Question 128

Abandonment of Appeal

Answer 128

• when parties fail to take any step in prosecution or defense within the perods in court rules

Question 129

Dismissal of Appeal

Answer 129

• Irregularities, lack of jurisdiction, no right of appeal, abandonment.
• If there’s some problem w/ the record (incomplete, error) – no matter who responsible, appeal won’t be dismissed. Not the kind of thing that can lead to a dismissal
• If there are any other irregularity, defect – no dismissal unless an error imputable to appellant.
• If there is a deficiency that is grounds for dismissal (no jurisdiction; no right of appeal), there is a very short time period for filing motion to dismiss – 3 days, exclusive of holidays, of return day or actual lodging of record, whichever is later.
• If there is a problem w/ bond that jeopardizes the suspensive appeal, have to challenge it w/in the three day period.
• If there is a problem with a suspensive appeal and MTD is filed w/in the 3 day period that brings up a non-jurisdictional defect, it can be converted into a devolutive appeal w/in the 60 day period

Question 130

Scope of the Appeal

Answer 130

• When an appeal is taken, app ct can render any judgment that is just, legal, and proper based upon the record.
• Encompasses all issues, claims, or defenses decided agst appellant w/o necessity of the appellant particularizing assignments of error (at this point)
• You can limit scope of the appeal by stating concisely the points on which you intend to rely & designating particular parts of the record that you want to go up on appeal.
• If there is a constitutional challenge, ct of appeal can’t look at it unless it was pleaded and particularized in the trial ct (alleging it in petition not good enough, had to be briefed & argued)

Question 131

Standards of Appellate Review (findings of fact & conclusions of law)

Answer 131

• App ct gives deference to trial ct’s findings of fact. Manifestly erroneous standard – clearly wrong. Two part test for court of appeal to step in and reverse a finding of fact:
  (1) App ct must find that there’s no reas factual basis for the finding of the trial ct, AND
  (2) App ct must find that the record establishes that the finding is clearly wrong.
• App ct gives no deference to conclusions of law – de novo. Ct of app can determine for itself whether the dist ct applied the right rule of law.
• Witness credibility – Even though an app ct may think dist ct drew wrong inferences from testimony or if they feel a W wasn’t credible, it’s not ok for app ct to substitute its own credibility judgment. If there’s any reas basis, it must be left undisturbed.
  
  • Exception – If docs or other evid so contradict W’s story or if story is so implausible on its face that a reas fact finder could not credit it. Then you can substitute a credibility assessment.

Question 132

Rehearing on Appeal

Answer 132

• Post-judgment mechanism in ct of app and supreme ct for parties to request rehearing if dissatisfied w/ judgment.
• Judgment doesn’t become final until all oppprtunites for reh’g & any opportunities for review by higher ct have lapsed.
• Can apply for rehearing in ct of app – submit application w/in 14 days of mailing of notice of judgment. Or, can forego reh’g and seek discretionary review in s ct w/in 30 days of mailing of judgment – application for writ of cert.
• If no application w/in that deadline, ct of app judgment is final.
• If there’s a timely filed reh’g application, deadline for filing a writ of cert is not running, & picks up 30 days after mailing date of notice of rehearing denied.
• If a writ of cert denied, the judgment final at that point.
• If cert granted by s ct and a judgment is issued, you have 14 days to apply for reh’g in s ct after mailing of judgment. Then, judgment becomes final.

Question 133

Supervisory Jurisdiction of Courts of Appeal

Answer 133

• App cts also have supervisory jd over all of the dist cts within their circuit (discretionary).
• If you have an interlocutory non-appealable order (anything at all) can be taken up to ct of app on an application for supervisory writs.
• Asking ct of app to step in & review an order for some reason.
• File into the record a notice of intention to apply for supervisory writs & ask dist ct to set a return date (the date by which your applicaton for supervisory writs has to be filed w/ ct of app). Parties usually ask for the maximum time (30 days from date of notice of ruling that you are taking up)
• Herlitz factors: When the overruling of the exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency & fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

Question 134

Supervisory Jurisdiction of the Supreme Court

Answer 134

• Can file for supervisory writ to the supreme ct to review interlocutory rulings of a ct of app that has exercised its supervisory jd or an interlocutory trial ct ruling over which the ct has declined to exercise supervisory jd.

Question 135

Execution of Judgments - general rule and effects

Answer 135

• Until a final judgment is rendered (i.e., new trial / appeal times lapse and the time for suspensive appeal), a judgment cannot be executed
  
  • Whatever is the last day oftime period, must count to the next day to start execution of judgment.
• Effects –
  
  • Brings closure to any related dispute between the parties
  • Accorded full faith & credit by other states where the judgment is sought to be enforced

Question 136

Execution of Money Judgments - Procedure before sale for immovable and movable prop.

Answer 136

• Creditor gets a writ of fieri facias from the clerk, who then directs sheriff to seize & sell property of judgment debtor.
• Seizure – Upon issuance of writ, sheriff begins seizing debtor’s property, for up to 1 year from date of issuance. If not satisfied, creditor must obtain new writ
  
  • Exceptions: In addition to many different categories of items that are immune from seizure, the tools of that person’s trade/profession cannot be seized (inhibits future income & repayment)
• Immovable Property – Sheriff must file notice of seizure w/ mortgage records of parish & the notice is served on debtor. Sheriff must also send Mennonite notices to those who filed a request for such a notice in mortgage records.
  
  • Two advertisements before sale, with one at least 30 days prior & the other at least 7 days prior. If occupied, the notice is affixed to the entrance of the home.
• Movable Property – Sheriff must advertise impending sale at least once, at least 10 days prior to the sale. NOTE – perishable property may be sold immediately w/o prior advertisement or approval upon request of a party

Question 137

Execution of judgments - rights of debtor in judicial sale

Answer 137

• General Rights of the Debtor –
  (i) Debtor may choose the order of things sold, except that the creditor can direct the sale of previously mortgaged or privileged property
  
  • Permits debtor to avoid sale of certain impt property
    (ii) Debtor can also move for the release of property if the total value of the seizure is excessive of the judgment
    (iii) Prior to the sale, seized property ought to be appraised unless it is mortgaged or privileged prop the debtor waived

Question 138

Execution of judgments - judicial sale

Answer 138

• At the initial sale, property must yield a bid which is at least 2/3 of the appraised value. If not, the sale is deemed invalid & property must be re-advertised and a second auction is held.
  
  • At second auction, prop is sold for whatever price it brings
  • Of course, both creditor and debtor can bid
• Exception – When sale price (at either first or second auction) is not enough to cover sheriff’s costs & the liens on property, it will not be sold
• NOTE – If creditor is a superior creditor to all other liens, they can require sale of property, even if bid is insufficient to satisfy their lien.

Question 139

Execution of judgments - adjudication (distribution)

Answer 139

• “Adjudication” = Typical Payment Order – The purchaser pays the sheriff and the superior lien holder
  
  • So, BACK out the superior lien amts from the purchase price. Then, you have your sale proceeds. Pay sheriff, then creditor, then inferior liens.
  • Sheriff – Expenses
  • Judgment Creditor - Judgment
  • Lien Holder – If inferior to judgment creditor
  • Remittance – If there is any left over, it is returned
• With liens that are superior to that of the seizing judgment creditor, the purchaser will pay the sheriff only the amount of the purchase price that exceeds the value of such a lien
• NOTE – If there are funds, but they are insufficient to pay all inferior creditors, these funds are deposited in registry of court and w/ notice to creditors, a distribution takes place among them (or court will do it)

Question 140

Garnishment

Answer 140

• A writ compels person holding property belonging to judgment debtor to deliver the prop or pay debt to the sheriff
• R.S. 13:3881: First 75% of wages are exempt from seizure (only applies to “regular earnings,” not those earnings outside of regular pay—i.e. not fringe benefits)
• Process –
  (i) Writ of fieri facias is obtained from clerk and filing of the petition is then served on garnishee, along with garnishment interrogatories, requiring citations and notice
  
  • ROGS – questions on whether party has any property of judgment debtor and if so, description of that property
    (ii) Within 15 days of service, party/garnishee must file sworn answers to the interrogatories
  • If admitted or found after contradictory motion, garnishee will be ordered by ct to pay debt to sheriff as it becomes due
• Penalty – The more severe payment comes when not answering interrogatory, instead of merely failing to pay the garnishment
  
  • Failure to Respond – represents a prima facie showing that they have property of debtor and can proceed agst garnishee for the debtor’s property
  • Failure to Pay/Lapse – After proceedings, garnishee is required to pay the missing payments and to continue paying, less severe than not responding to ROGS
• NOTE – Proper venue for garnishment proceedings is the parish where the garnishee may be sued under Article 42 or 77

Question 141

Examination of Judgment Debtor

Answer 141

• Can examine third parties to find out what assets judgment debtor has.
• Can also examine debtor himself. File an ex parte motion in ct where judgment issued, get order for judgment debtor to appear on no less than 5 days notice to be questioned under oath and to produe records to discover what assets available to satisfy the judgment.
• Costs of this are taxed agst debtor unless ct finds that the examination was unnecessary. If debtor fails to appear or doesn’t bring all of the records he was ordered to, punishable by contempt.
• If you choose to get info from debtor directly, then you have two options – traditional forms of discovery (ROGS, RFPs), or you can proceed with debtor exam. Same rules of service also apply. So, service on counsel of ROGS and RFPs is fine.

Question 142

Revival of money judgments

Answer 142

• Judgments are good for 10 yrs. When formally issued, clock starts.
• If 10 yrs isn’t long enough to fully collect, then at any time before judgment prescribes, any interested party may file to have judgment revived. Then, the 10 yr pd is interrupted and starts anew. No limit to how many times you can do this.
• Go to ct that rendered judgment, into suit in which judgment was issued (same caption), file ex parte motion asking for it to be revived. Must represent to ct by affidavit of holder of judgment attesting that the judgment remains unsatisfied.
• No service or citation of motion is req’d, but upon signing of order, clerk will send notice of signing and revival to debtor’s last known address. That’s all the notice debtor is entitled to.
• If judgment has been revived in error (e.g., it had already been paid), debtor can come in & file a contradictory motion to have revival annulled.

Question 143

Writ of Possession

Answer 143

• execution of non-money judgment
• Object of some suits is to be recognized as possessor of property.
• Winning party gets a writ of possession, directs sheriff to seize & deliver movable prop to him or compel the party in possession of immovable prop to vacate the premises

Question 144

Writ of Distringas

Answer 144

• execution of non-money judgment
• Writ used either
  (1) if you have a judgment for delivery of a thing and can’t be enforced normally b/c the person has concealed the prop or removed it from the court’s jd, you can get a writ of distringas (2) if a judgment orders a person to do or refrain from doing something, and the person refuses to comply, can get a writ of distringas
• The writ destrains the D’s prop, orders the party in contempt, or orders the prevailing party damages.

Question 145

Specific Performance

Answer 145

• Judgment for specific performance orders party to specifically comply w/ the judgment. If party fails, ct may direct sheriff or some other party to perform an act & will afford that person’s performance w/ same effect as if it had been done by debtor.
• E.g. mortgage holder has been directed to cancel a mortgage. If he refuses to comply, sheriff or someone else can take that act.
• The party who refused can be liable for the costs associated with the process of having it done by another.

Question 146

Executing Foreign Judgments (out of state)

Answer 146

• Other states and federal court – under the US Const., such judgments entitled to FF&C.
• Two ways to have a foreign judgment recognized and enforced in LA
  (1) File an ordinary action in the district where you want to have it executed. Attach an authenticated copy to the petition. Would proceed like any other lawsuit. More expensive way.
  (2) The enforcement of foreign judgments act – quicker process. File petition & attach authenticated copy. But the petition can be filed ex parte. In addition to judgment, include affidavit w/ name & address of judgment debtor & creditor. On filing, clerk sends notice to debtor at last address by certified mail. 30 days after notice, you can proceed w/ execution of judgment.

Question 147

Executing Out of Parish Judgments

Answer 147

• A final judgment of a LA ct may be executed in any other LA ct of competent jd.
• Creditor files an ex parte petition in parish where you want to execute judgment, attach a certified copy of judgment, include a prayer asking ct to make the judgment executory.
• Upon that filing, it is routine for judges to sign, then you can proceed with execution.