LA Civil Procedure PDF

LA Code of Civil Procedure **JURISDICTION** - **Subject Matter Jurisdiction** -- legal power and authority to hear a case based upon a particular class of action based on object of demand and the amount in dispute and value of right asserted - Parish and City courts have no jurisd...

LA Code of Civil Procedure **JURISDICTION** - **Subject Matter Jurisdiction** -- legal power and authority to hear a case based upon a particular class of action based on object of demand and the amount in dispute and value of right asserted - Parish and City courts have no jurisdiction over: - title to immovable prop - right to public office or position - plaintiff asserts civil right or political rights - annulment of marriage, divorce, sep of prop, or alimony - succession, interdiction - City courts have no jurisdiction over -- tutorship, curator, emancipation, partition - Parish \$ cap: generally \$20K - City \$ cap: generally \$15K - No jury trials in city/parish courts - **Personal Jurisdiction** - in order to subject [a nonresident to personal jurisdiction], the maintenance of the suit must ***not offend traditional notions of fair play and substantial justice*** - **La Long Arm Statute** 🡪 a LA court may exercise **specific personal jurisdiction** over [nonresiden]t who [acts directly or by agent as to a cause of action arising] from any of following: - 1\. **transacting business** in La - 2\. **contracting to supply** service or things in La - 3\. **causing injury or damages** **through act or omission** in La - 4\. **causing injury or damage in LA or by act or omission outside la if nonresident reg does business here** - 5\. **manufacturing product which caused damage** or injury in La - In addition, La court may exercise **general jurisdiction** over a nonresident on any basis consistent w the constitution. - minimum contacts and not offend traditional notions of fair play *(International Shoe)* - when D has such a presence in the state that it would not be unfair to assert jurisdiction over them→ hard standard to meet - **In Rem Jurisdiction** 🡪 power of court over property claimed owned in LA by non-resident - **Quasi In Rem** 🡪 power of court to render a money judgment against nonresident not subject to personal jxd if the action is commenced by an attachment of his property in state. jdgmt can only be against attached property **VENUE** - In General (article 42) - individual domiciled in La = Parish of their Domicile - non domiciliary resident of La = Parish of Residence - **Domestic Corporation = Parish of its Registered Office** - **Foreign Corporation licensed to do business in La = Parish of its PPB or primary place of business** - Foreign Corporation [not] licensed to do business in La = parish of plaintiff domicile or where service is made - Domestic insurer = parish of registered office - Foreign or Alien insurer = East Baton Rouge - Partnership or unincorporated association = parish of its PPB - **Suits against joint or solidary obligors** 🡺 proper as to parish of any defendant - brought where plaintiff is domiciled if one of D is an insurance company - **Torts Suits** 🡪 where damages sustained, wrongful conduct occurred, defendant domiciled - **Action on Open Account, PN** 🡪 parish where account created, service performed, or debtors' domicile, parish where note executed - **Insurance Policy Suits** 🡺 decedent domicile, beneficiary domiciled, insured domiciled - **Contract Suits** 🡪 where contract executed or where work or service to be performed - **vs. person w business office on matter which office had supervision 🡪** office location - **Under LA Long Arm Statute 🡪** where plaintiff domiciled - **Class Action 🡺** parish of proper venue as to defendant - **Derivative Suit 🡪** parish of proper venue as to corporation or unincorporated association - **Forum Non Conveniens** - allows a court to transfer a suit through venue is proper to a *parish where suit might have been brought* if necessary for *the convenience of the parties* and witnesses and in the *interest of justice* - **No suit brought in the Plaintiffs Domicile may be transferred on this ground→** if venue is originally proper here - Venue may not be waived -- implied or expressly -- in certain types of cases. - Proper Venue where each of the following proceedings **MUST be brought:** - [action to annul judgment] 🡪 trial court where judgment rendered - [annulment or divorce] 🡪 where either spouse domiciled or parish of last matrimonial domicile - [emancipation] 🡪 where party is domiciled - [tutorship] 🡪 3 options - [interdiction] 🡪 where interdict domiciled or where he resides or where he is found - [succession] 🡪 where decedent domiciled or where they owned immovable prop or movable prop **Cumulations of Actions** - ***P may cumulate*** against the ***same defendant*** 2 or more actions even though based on [different grounds] if: - each cumulated action within court's jurisdiction and brought in proper venue - and, all cumulated actions are [mutually consistent and employ same form of procedure ] - 2 or more parties may be joined in same suit as plaintiff or defendants if: - community of interest between parties joined - each cumulated action is within courts jxd and brought in proper venue - all cumulated actions are mutually consistent and employ same form of proc **Lis Pendens 🡪** declinatory exception of lis pendens - [Suits pending in La state courts] 🡪 2 or more suits are pending in La state courts on *same transaction or occurrence*, between the same parties in the same capacities, *all but the first suit must be dismissed* or, *if the defendant does not except, the first final judgment shall be conclusive of all*. - [Suits pending in La and federal or foreign court] 🡪 when a suit is brought in La while another is pending in another state or in federal court on the same transaction or occurrence, between the same parties in the same capacities, the court may stay proceedings in 2^nd^ suit pending outcome of first - Same suit filed in multiple parishes -- can't do this bc forum shopping - **note**: Notice of Lis Pendens - this is for mortgage records: filed in mortgage records to tell 3p there is a dispute about the immovable property **Res Judicata** 🡪 peremptory exception, can be filed at any time even after answer has been made **Abandonment 🡪** 3 years passes without any steps in prosecution or defense, deemed abandoned and will be dismissed **Class Actions** - prerequisites: - **1. Numerosity -- so numerous that joinder is impractical** - **2. Commonality -- as to questions of law or fact** - **3. Typical Claims or Defenses** - **4. Fair and Adequate Protection of Interests of the Class** - **5. Objectively Defined Class** **Derivative Actions** - petition must include: - 1\. proper party allegation - 2\. allegations with particularity - 3\. joining the corporation or association as defendant - 4\. prayer for judgment - 5\. verification by affidavit **Joinder** - If a person who must be joined as a party under La. Code of Civ. Proc. **art. 641** cannot be made a party, the court must determine whether the action should proceed among the parties before it, or should be dismissed. - **Art. 641.** Joinder of parties needed for just adjudication - A person shall be joined as a party in the action when either: - \(1) In his absence complete relief cannot be accorded among those already parties. - \(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either: - \(a) As a practical matter, impair or impede his ability to protect that interest. - \(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations. - The factors to be considered by the court include: - extent of prejudice - can prejudice be lessened or avoided? - adequacy of judgment - whether P will have an adequate remedy if dismissed for nonjoinder **Who Lacks Procedural Capacity to Sue or Be Sued** - unemancipated minors→ person with parental authority/tutorship - mental incompetents→ curator ad hoc - interdicts→ curator **Substitution of Parties** - legal successors can be substituted if party dies during pendency of suit - survivors designated by statute; and - succession representatives (if under administration) or heirs and legatees (if no administration) **Attorney's Signature** - certifies that he has read the pleading and to the best of his knowledge and belief formed after a reasonable injury, he certifies that it is (1) not for harassment, (2) non-frivolous and supported by law, (3) has or likely to have evidentiary support, and (4) each denial is based on evidence or lack of information **Service** - must be requested on all named D within 90 days - domiciliary service: leaving the process at the dwelling or usual place of abode of D, with person of suitable age and discretion who resides in the domiciliary establishment - long arm service: mailing citation and petition by certified or registered mail or by actual delivery to D by commercial courier - on corporations: personal service on registered agent - if none, personal service on any officer, director, or employee of suitable age and discretion where the corporation regularly conducts business, or long arm service (if applicable) - if all of this fails after diligent effort, then service can be made on SoS - on LLCs: personal service on agent - if none, then personal service on any manager, member, or employee of suitable age and discretion where business is conducted, or long arm service (if applicable) **Answer** - D must file answer to petition in 21 days from service→ for D served in LA in a district court case - D must file answer to petition in 30 days from filing affidavit or service→ for D served in LA in a city or parish court case - State of LA D must file answer to petition in 30 days from service of petition **Affirmative Defenses** - must be included in answer or they are waived - failure of consideration - mitigation of damages - negligence or fault of P and others - duress, error, or mistake, estoppel - extinguishment of obligation - illegality - fraud **Exceptions** - declinatory→ must be raised prior to or in answer or will be considered waived, but in no event later than signing of final default judgment - insufficiency of citation - insufficiency of service of process - lis pendens - improper venue - lack of PJ - lack of SMJ - dilatory→ must be raised prior to or in answer or will be considered waived, but in no event later than signing of final default judgment - prematurity - want of amicable demand - unauthorized use of summary proceeding - nonconformity with the formalities of the petition - vagueness or ambiguity in petition - lack of procedural capacity - improper cumulation of actions - discussion - peremptory→ can be pleaded at any time in the trial or appellate court - prescription - peremption - res judicata - nonjoinder of parties under articles 641 and 642 - no cause of action (no one can sue for this) - no right of action (someone can sue for this, but not you) - discharge in bankruptcy **Incidental Demands** - A party who does not assert in an incidental demand an action which he has against a party or third person does not thereby lose his right of action ***except*** in the following two instances: - compulsory reconventional demand - defendant's action against a third party who is liable to him for all or part of the principal demand (third party demand) - When a parish or city court has jurisdiction over the main demand, it may exercise subject matter jurisdiction over any related incidental regardless of the amount in dispute in the incidental demand, except when compulsory reconventional demand exceeds court's jxd, then must transfer to proper district court - Incidental demand is not barred by prescription as long as it is not barred at the time main demand was filed and it is filed within 90 days of service of main demand **Motions** - MSJ - standard: no genuine issue of material fact and movant is entitled to judgment as a matter of law - served at least 65 days prior to trial - opposing memo served at least 15 days prior to the hearing on MSJ - BOP is with movant, but if movant will not bear BOP at trial, then movant's burden on the motion does not require him to negate all essential elements of the claim, but just point out that there is an absence of factual support for one or more of the essential elements - affidavits in support and in opposition of MSJ require: - competent affiant - personal knowledge - based on facts admissible at trial - motion for judgment on the pleadings - may be used by any party after answer has been filed - court looks ONLY at the pleadings themselves and considers all of the mover's undenied allegations and all of the opponents allegations as true - special motion to strike - cause of action brought against a person who is exercising his or her rights of free speech on a matter of public issue shall be subject to a special motion to strike unless the court determines that P has established probability of success on the claim which determination will be admissible **Amended and Supplemental Pleadings** - petitions - P can amend petition without leave of court before answer is served - when answer is served, P needs leave of court or consent of opposing party is required - answer to the amended petition is required within 10 days of service of amended petition or within whatever time remaining to answer original petition - answers - D may amend answer once within 10 days after the original answer was served - otherwise need leave of court or consent - exceptions - dilatory and declinatory may be amended prior to hearing with leave of court or written permission, but only to amplify them not add another exception - peremptory exception may be amended at anytime, even to plead an objection not originally set forth - relation back - arises from the same conduct, transaction, or occurrence set forth in original pleading, then amended petition relates back + the following requirements: - for plaintiffs... - D knew or should have known of the existence or involvement of the new P - new and old Ps are sufficiently related so that the added or substituted party is not wholly new or unrelated - no prejudice to D in preparing a defense - for defendants... - substituted D received notice of suit so there is no prejudice in preparing a defense - substituted D knew or should have known that but for the mistaken identity, he would have been sued **Discovery** - discovery should not begin until there has been a pretrial conference - **subpoenas** - can compel witness to testify even if they live more than 25 miles from the courthouse as long as they reside or are employed in LA - but expenses must be paid: \$0.20/mile, \$5/day, \$25/day for food and hotel - **scope of discovery** - parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter involved in the pending action - information need not be admissible at trial if it is reasonably calculated to lead to the discovery of admissible evidence - **protective orders** - available to prevent annoyance, embarrassment, oppression, undue burden, or expense - remedies include: - prohibiting discovery - limiting terms of discovery - ordering that the trade secret or confidential info may not be disclosed/designating its form of disclosure - **depositions** - objections: a party may instruct a deponent not to answer only when... - 1\. necessary to preserve a privilege - 2\. enforce a limitation on evidence imposed by the court - 3\. prevent harassing or repetitious questions - 4\. prevent questions which seek info that is neither admissible at trial or reasonably calculated to lead to the discovery of admissible evidence - motion to suppress: - errors and irregularities in the manner in which testimony is transcribed or depo is prepared, signed, certified, sealed, endorsed, transmitted, or otherwise handled by the officer are *waived unless a motion to suppress the depo is made promptly after the defect* is, or with due diligence, should have been discovered - motion to termination: - party or deponent may move to terminate the depo upon a showing it is being conducted in BF or to annoy, embarrass, or oppress the deponent or party - use of depo of a witness - may be used in any way at trial to: - impeach - by adverse party for any purpose - dies, unavailable, resides 100 miles away, out of state, or other exceptional circumstances, then depo can be used for any purpose - party uses part of a depo, then adverse party can admit any other part - use of depo of an expert - after notice giving other counsel 10 days to object, the depo of an expert may be used by any party for any purpose - objector must pay reasonable expert fees in advance - notwithstanding objection of counsel, court may permit use of expert's depo if justice so requires - **interrogatories** - must be answered under oath, or objected to, within 30 days of service - party is limited to serving no more than 35 interrogatories (including subparts), unless he obtains leave of court - option to produce business records: when a party's answers to interrogatories can be obtained from the records, that party can specify where in the records the answers may be found and make records available in lieu of answering questions - **request for product of documents** - once served, adverse party must make all specified materials available for inspection, copying, testing, or sampling - must respond or object within 30 days of service - party can organize produced documents to correspond with requests or produce them as they are kept in the ordinary course of business - compelling physical or mental exams - exam may be compelled by adverse party *only* if physical or mental condition of the party is at issue - adverse party must deliver a copy of the exam to other parties if requested - adverse party can also request the examined party to deliver reports of any exams he has or may take for the same condition - examined party waives patient-physician privilege relating to the disputed condition - request for release of medical records - any party may serve on any other party a request that he sign a release directing a specific health care provider to release records of the party whose medical condition is at issue - 30 days to sign release or object - requesting party must send request to health care provider and subject party at the same time - within 7 days of receipt of medical records, requesting party must send copy to subject party - affidavit of medical cost - affidavit establishing medical services and costs will be sufficient evidence to support a finding of fact that the medical bill is authentic - affidavit must be made by person who provided the medical care or custodian of the medical records and accompanied by itemized statement of the services - affidavit must be filed with clerk of court and served on all parties at least 30 days before trial - **requests for admissions** - 30 days from service to respond - party responding to requests for admission cannot state that he lacks sufficient info to respond unless he made reasonable inquiry - motion to determine sufficiency can be made if requesting party thinks the answers to his request are insufficient - if requesting party is forced to prove at trial a fact that was previously denied, costs and attorneys fees may be recovered - compelling discovery and sanctions - **work product privilege** protects from disclosure all writing or electronic stored info that is prepared by a party or his attorney in anticipation of litigation or in prep for trial - does not apply to videos - inadvertent disclosure does not constitute a waiver if reasonably prompt notice of the inadvertance of the disclosure is given to recipient - upon receipt, the recipient must return or safeguard the materials but nonetheless assert a waiver of privilege - **sanctions** - if a party fails to obey an order to provide or permit discovery, court may impose following sanctions: - matter deemed proved - exclusion of evidence - pleadings struck, case dismissed, or default judgment entered - costs and attorneys fees - ordering contempt of court - **experts** - testifying→ court may order that a party provide a written report prepared and signed by an expert expected to testify at trial - *expert report* must be filed at least 90 days before trial and must include - exhibits, expert qualifications, publications of previous 10 years, compensation for expert services, and all cases in preceding 4 years in which he testified as expert - drafts of report and notes not discoverable, unless showing of exceptional circumstances - or if only for rebuttal, then within 30 days after opposing side's expert is disclosed - facts known by testifying experts are discoverable, but only after expert's report is provided - non-testifying→ facts and opinions are *only discoverable in exceptional circumstances* - unless expert is an examining physician under discovery rules - **hearing to determine the qualifications of an expert** - any party may file, not later than *60 days before trial*, a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether his methodologies are reliable under the code of evidence - a contradictory hearing and ruling on the motion must occur *at least 30 days before trial* - ruling from the bench must recite findings of fact, conclusions of law and reasons for judgment - or if taken under advisement, court must provide these *not later than 5 days after the hearing* - or can be heard and ruled on at any time before trial with consent of parties - findings of fact, conclusions of law and reasons for judgment must include: - requirements of evidence articles 702-705 - evidence presented at hearing - judge's decision as to whether the witness will be allowed to testify - reasons for the decision - duty to supplement discovery responses - generally, **no duty to supplement responses** which were complete when made - **exceptions:** - questions of identity and location of persons with knowledge of discoverable matters and expert witnesses and subject of their testimony - info making previous response incorrect - court order or agreement of the parties - **depositions of corporations or other entities** - **1442 depo** - when corp (or other entity) is deposed, it has a duty to provide deponents who are qualified to answer the questions - requesting party should provide a depo notice that names the corp (or other entity) as the deponent and designate the matter on which the exam is requested - then the court will designate who will testify **PRE-TRIAL PROCEDURE** - PreTrial Conference → a court may sanction an attorney if he engages in behavior in connection w pre trial conference - fails to obey order - fails to attend the pre trial conference - fails to participate in good faith - **Motion for Judgment on Offer of Judgment** - a party may make written offer to settle all claims w an adverse party *without admission of liability →* **20 days or more before the trial** - If accepted, any party may move for a judgment of the offer within 10 days after service - If offer [not] accepted → it shall remain inadmissible *except* to determine if offeree must pay offerors expenses for not accepting offer - IF final judgment by P-offeree is at least 25% less than the offer of judgment made by the defendant-offerror or if the final judgment obtained against the D-offerree is at least 25% greater than the amount of the offer of judgment made by the plaintiff offeror, the offeree must pay the offerors costs - when comparing the offer of judgment to the final judgment, include any additur or remitter, but do not include costs, interest, attorney fees. Unless such amount was expressly included in offer **TRIAL** - **Consolidation** → cases may be consolidated when 2 or more separate actions pending in same court - No consolidation if would result in: - jury confusion - prevent fair trial - undue advantage - prejudicing rights - **Continuances** - one of peremptory grounds for a continuance is that a **material witness** has absented himself w/o contrivance of the party requesting continuance - Adverse party can **prevent a continuance** on this ground by requesting from the party who req the continuance to *disclose under oath the expected testimony of absent witness* - **Involuntary Dismissal** → 3 grounds on which a case may be voluntarily dismissed - 1\. if plaintiff fails to appear at trial - however if pending settlement - either party may reinstate suit within 60 days of receipt of notice of dismissal - 2\. in trial without jury, any party may move for involuntary dismissal after close of P case on the ground that P has shown no right to relief - 3\. involuntarily dismissed as to D for whom service has not been requested within 90 days of commencement of action unless good cause shown why service not req - here - interruption of prescription is considered never to have occurred if failure to timely request service of citation was due to bad faith. - **Jury Trials** - [Right to a Jury Trial] → in all cases but some exceptions: - cases where amount of no individual petitioners cause exceeds 10,000 - suits on PN unless forgery, fraud, error, failure of consideration is claimed - family law - custody, visitation, alimony, child support - Requesting Jury - must be made within TEN days of filing of pleadings that raise an issue triable by jury - Challenges - Peremptory → - jury of 12 → 6 peremptory, 4 additional if multiple party - jury of 6 → 3 peremptory, 2 additional for multiple party - For Cause → juror may be challenged for cause if: - lack of legal qualification - juror is not impartial (formed opinion) - relationship influencing juror - ex on this: - juror been on case w same facts or takes 5th amend on voir dire - CAN be exercised up to taking of evidence - Jury Size → 12 jurors = 9 must concur for verdict; 6 jurors = 5 must concur - **Directed Verdicts** → may be made by motion at the close of the other sides case - standard for granting = facts and inferences are so *overwhelmingly in favor of moving party that reasonable persons could not reach contrary result* - **Judgment Notwithstanding the Verdict** - must be filed within 7 days, exclusive of holidays, from mailing or service of notice of signing of judgment - if no verdict, must be filed within 7 days of jury discharge - [Standard] = considering all the evidence in light most favorable to the non-moving party, if facts and inferences so strongly and overwhelmingly favor one party that reasonable person could not reach contrary result - should be granted - **Remittur and Additur** - granted as alternative to a new trial when the issue of quantum is clearly and fairly separable from the other issues in the case **JUDGMENTS and POST JUDGMENT ACTIONS** - **Final Judgments** -- a final judgment may be amended by the trial at anytime, but only to correct errors of calculation or altering the phraseology - Partial Final Judgment → final judgment may be rendered by the court even though the successful party is not granted all the relief prayed for or all the issues have nor been adjudicated when court: - Dismisses the suit at to less than all parties - Grants a motion for judgment on the pleadings - grants a motion for summary judgment - signs a judgment on either the principal or incidental demand, upon when 2 have been tried separately - signs a judgment on the issue of liability when that issue has been tried separately by the court or when in jury trial issue of damages is to be tried before a different jury - **Partial Judgments** - = when a court renders a partial judgment or partial SJ, or sustains an exception in part, as to *less than all the claim*s, demands, issues or theories - Judgment shall not constitute a final judgment unless designated a a final judgment by the court after an express determination that there is no just reason for delay - **Findings of Fact and Reasons for Judgment** - in all appealable contestes cases - other than jury trials, the court shall issue written findings of fact and reasons for judgment if: requested by a party within TEN days of the mailing or service of the notice of signing of judgment - in non jury personal injury cases, the court shall issue - findings of fact but not reasons, whether or not requested by a party - **Jury Cases and Compromises** - Jury Cases → after jury trial, court must prepare and sign judgment in accordance w the verdict or order counsel prep and submit judgment for signature within *10* days of verdict - Compromise → when parties reach a compromise agreement which is recited into the record, the court may order counsel to prepare and submit judgment for signature within *20* days of verdict **Motion for New Trial** - Peremptory grounds for granting motion for new trial: - 1\. verdict is clearly contrary to law - 2\. the discovery of new evidence which could not have been discovered w due diligence before jury - 3\. when juror bribed or compromised - A new trial motion must be filed within **7 days, exclusive of holidays** from the *notice of the signing of the judgment* - **Standard** ⇒ trial j*udge is free to evaluate the evidence without favoring either party*, he may [draw his own inferences and conclusion about the credibility of witnesses ] - New trial should be granted if the verdict is **clearly contrary to the law** - the proper venue for an action for nullity is ???? - **Annulment for vices of Form -** bases: - Judgment v. someone who is incompetent - v\. someone not properly served at waiver of jurisdiction - v\. someone w problem w default judgment - no valid default judgment entered - court lacked SMJ - They can be brought any time and may be asserted against collateral on appeal - Annulment for Vices of Substance - final judgment may be annulled for vices of substance if obtained by fraud or ill practice - a suit to annul for vices of substance must be brought within 1 year of discovery and must be asserted in a direct action. **APPEALS** - **Scope of Review** ⇒ appellate courts may review both facts and the law in civil cases. - Fact findings (judge or jury) → will not be disturbed unless there is manifest error. - Law findings → reviewed by determining whether they were correct or incorrect - Writ of Certiorari → is an application to *review a judgment of a court of appeal* - must be filed within 30 days of mailing of notice of signing of judgment and opinion or within 30 days of mailing of notice of a timely filed application for rehearing to the court of appeal - Supervisory Writ → application directed at reviewing or staying the action or inaction of a trial court - must be filed in the court of appeal within a reasonable time set by the trial court, not to exceed 30 days from the date of the ruling at issue. - must be filed w Supreme Court within 30 days of the date of ruling or within 30 days of mailing of a timely filed application for rehearing to the court of appeal - **Devolutive Appeals** - must be taken within *60 days of when motion for new trial or JNOV elapsed*. -- so 60 days starts after this 7 days period or when such denial is done - The time period is interrupted for all parties upon filing of a notice of removal in fed court and commences anew on the date the proceeding is remanded. - **Suspensive Appeals** - must be taken within 30 days of when the timing for filing a motion for new trial or JNOV has elapsed or denial of timely motion for new trial or JNOV - bond must be posted for suspensive appeal - where judgment is for a sum of money, security shall be equal to the amount of judgment including interest until the security is furnished, exclusive of costs - premature appeal order - order of appeal is premature if granted before court disposes of all timely filed motions for a new trial or JNOV - divorce, custody, and alimony cases - in divorce cases, only suspensive appeals are available - in custody and alimony cases, only devolutive appeals are available - **method of appealing** - an appeal is taken by obtaining an order of appeal from the trial court within the delay allowed (30 days suspensive, 60 days devolutive) - *order of appeal* must state the return date and the amount of security (if suspensive) - clerk then mails notice of appeal to all parties and a notice of estimated costs for preparing the record to the appellant by certified mail - appellant must pay costs within 20 days of the mailing of notice or trial judge may dismiss the appeal - *return day*: day by which the record of appeal from the trial court must be *lodged* into the court of appeal - set at 30 days from the date estimated costs are paid→ if *no testimony is to be transcribed* - set at 40 days from the date such costs are paid→ if *testimony is to be transcribed*, unless the trial court fixes a lesser period - **answer to appeal** - appellee *need not answer* UNLESS he desires that the judgment be modified, revised, or reversed in part or unless he demands damages against the appellant - application for rehearing - application for rehearing in court of appeals or LASC must be filed within 14 days of the mailing of the notice of judgment - appeals relating to injunctive relief - **no appeal allowed from TRO** - appeal from an order regarding preliminary injunction and any bond must be filed within 15 days from the order - NO SUSPENSION of a preliminary or final injunction unless the court in its discretion so orders - appeals from city or parish courts - must be taken within 10 days from date of judgment or from service of notice of judgment - if new trial application is filed, the delay commences the day after motion is denied or from service of the notice of denial **EXECUTION OF JUDGMENTS** - Money Judgments - execution of money judgment is initiated by filing a **writ of fieri facias (writ of fifa)** - directs sheriff to seize and sell D's property - notice of the sale of JD's property be given in an ad in local newspaper - movable = placed in ad at least 10 days before sale - immovable = placed in two ads (first 30 days before sale, second 7 days before sale) - property must bring at least ⅔ of its appraised value or there is no sale - then must be re-advertised before second sale - at second sale, property can be sold for any price - if price bid at the first or subsequent sale is insufficient to pay the sheriff's fees plus all liens superior to that of the seizing creditor→ property shall not be sold - **Garnishment** - used to seize property that is in the hands of 3rd persons (wages and bank accounts) - garnishment interrogatories served on 3p - must be answered *within 15 days of service* - failure to timely answer is prima facie proof that garnishee (bank or employer) has the property or is indebted to JD - when garnishee admits in his answers that he has JD's property or is indebted to him→ court orders *garnishee to deliver the property or pay indebtedness to sheriff* when due - if wages are garnish, first 75% of disposable earnings is *exempt from seizure* - **Judgment Debtor Examination** - will require the JD to disclose his assets - motion may include request of JD to *bring financial books and records* - court will order JD to appear in court *not less than 5 days* from date of service of motion and order - failure to appear is punishable as contempt - costs associated with exam are taxed against JD unless court determines exam was unnecessary - Non-Money Judgments - judgment of possession→ executed by **writ of possession** - directs sheriff to deliver movable property or compels the party in possession of movable property to vacate - if judgment orders delivery of the thing, but sheriff cannot seize because D has concealed or removed it from court's jurisdiction→ **writ of distringas** can be used to distrain property from D or hold him in contempt or award damages to the party entitled to performance - Foreign Judgments - **can seek recognition of foreign judgment either by...** - ordinary process; or - Enforcement of Foreign Judgments Act **SUMMARY PROCEEDINGS** - those which are conducted with rapidity, within the delayed allowed by court, without citation, and observance of all the formalities required in ordinary proceedings - **matters which are heard as a summary proceeding:** - incidental questions - application for a new trial - exceptions, contrary motions, rules to show cause - action against surety on a judicial bond - homologation of judicial partition, tableau of distribution, or account filed by legal representative - most summary proceedings commenced by motion or rule - but there are 3 proceedings which *must be commenced by petition:* - habeas corpus→ brought against someone who has custody over another person and requires the custodian to bring them into court - quo warranto→ brought to determine whether someone has the right to hold office - mandamus proceeding→ requires a state official/employee to do their ministerial duties **EXECUTORY PROCESS** - under executory process, there can be rapid foreclosure and certain property may be sold without obtaining a personal judgment against debtor - prerequisites to utilizing executory process: - mortgage or privilege executed by *authentic act* - security agreement under chapter 9, containing confession of judgment clause - if movable property, confession of judgment through private signature duly acknowledged or authentic act - debtor can enjoin executory proceeding on following grounds: - debt has been extinguished - debt is unenforceable - proper executory process procedure has not been followed - suspensive appeal may be taken by debtor within 15 days of the signing of the order directing issuance of the writ of seizure - if mortgagor (debtor) has sold property seized to a 3p, that party's rights are to pay the debt, enjoin the sale on any ground listed above + that the mortgage is not recorded, or to intervene and claim proceeds equal to his improvements to property - deficiency judgments: obtained by suit to collect balance due if the proceeds from sale of debtor's property in executory proceeding are insufficient to satisfy debt - creditor's right to deficiency judgment is waived, *unless* appraisal is made - deficiency judgment suit may be commenced either by converting executory proceeding to ordinary proceeding or file a separate suit **ATTACHMENT AND SEQUESTRATION** - Attachment→ *any property* - writ of attachment obtained when P claims an interest in property and D is concealing himself to avoid service of citation; disposing of or granting security interest in property to give an unfair privilege to one creditor; place it beyond the reach of his creditors; or leaving the state to avoid execution of judgment - Sequestration→ *specific property* - writ of sequestration obtained when P claims to own, possess, or have a privilege/mortgage/security interest on the property seized and it is within the power to D to conceal, dispose of, waste, or remove the property in the parish **INJUNCTIONS** - P must show that he will suffer *irreparable injury, loss, or damage* if relief is not granted - irreparable injury = one that cannot be compensated by money damages - **TRO** may be granted without notice and expires by its terms, **not to exceed 10 days** - **preliminary injunction** requires notice and hearing, and trial on the merits - hearing must be scheduled **not less than 2 days or more than 10 days** from service of notice **REAL ACTIONS** - **Petitory Actions** - where P seeks judgment declaring that he is owner of the property - requirements: - P not in possession - D in possession and assertion of ownership - if D is in possession, P has to prove that he has title good against the world - BOP - if D in possession→ P must prove that he acquired ownership from a previous owner or through acquisitive prescription - if D is not possession→ P must prove that he has better title than D - judgment notifies the D that he has 60 days to assert ownership in petitory action or be precluded from ever asserting ownership - Possessory Actions - used when P is in possession but is being disturbed - BOP: P must prove... - he has *possession of immovable* or real right therein when disturbed - he and his ancestors in title had *quiet possession for more than a year immediately prior to the disturbance*, unless evicted by force or fraud - disturbance was one *in fact or in law* - instituted the *action within 1 year* of disturbance - in possessory action→ title is not at issue - Other Considerations - possessory and petitory actions can NOT be cumulated - if D asserts that he is true owner→ action is converted to petitory action **NOTICE OF PENDENCY OF ACTION** - **Notice of Lis Pendens**→ applicable to actions pending in LA (state or federal court) - affecting title to or asserting mortgage/privilege on immovable property - gives 3p notice of the pending action - procedure: - P must file a written notice, signed by the party or counsel - setting forth the names of persons against whom it is to be effective - include the court, title, docket number, filing date, and object of the demand in which the action is pending - notice filed in mortgage records for parish where property is situated - expires after 10 years, but can be reinscribed to have effect for 5 more years - when judgment is rendered in the action *against party who filed notice*→ judgment shall order cancellation of the notice of lis pendens - to compel cancellation of an improperly filed notice, **bring mandamus action** against recorder of mortgages for parish where notice was filed **SUCCESSION AND PROBATE PROCEEDINGS** - **Probate** - **Proces Verbal →** public inventory of succession property taken by a court appointed notary in the presence of 2 witnesses - **Challenge → i**f exparte probate is challenged, there is a contradictory hearing and th**e burden of proving the authenticity and requisites of the will is on the proponent of will.** - **Annulment** - P always has the burden of proving the invalidity of the following kinds of testaments: - Notarial testament - Nuncupative testament by public act - statutory testament - For other testaments, D has the burden of proof for 3 months after probate, after that, P has the BOP - Video Taped Testaments → are admissible as evidence, provided that testator's sworn oath is recorded on the videotape of the following: - proper execution of testament - testators intentions - testators mental state or capacity - testaments authenticity - by matters court deems relevant to probate - Administration of Successions - *Executor* - if executor not named in will or the one named is disqualified - court can appoint **datitive testamentary executor** - when court must appoint one - preference given in following order: 1) rank of best qualified; 2) nominees of foregoing class; 3) creditors or owners - [Compensation] → executor receives compensation of 2.5% of the value of the succession, or more if in courts discretion, *unless* previously set in the testament appointing the executor or the agreement between the administrator and heirs - [Tableau of Distribution] → for homologation is a judgment authorizing the succession administrator to pay the debt - what the fuck? - Interim Allowance - if succession is sufficiently solent, an heir, surviving spouse or legatee would be entitled to reasonable periodic allowance for maintenance, provided that the court concludes that such an allowance is **necessary** and the advances are within the amount eventually due them. The heir, surviving spouse or legatee mau compel such payment by contradictory motion against the succession representative. - filing of contradictory motion to compel such payment must be published ONCE And state that any opposition must be filed within 10 days from the date of publication - Creditors → can suspend prescription against his creditors for up to 10 years by delivering personally or by certified/reg mail formal written proof of claim to the succession rep. proof must include: - name and address of creditor - amount of claim and factual basis - description of security if any - creditor cannot sue a succession rep to enforce a claim against the succession rep until the rep has rejected the claim. Failure to act within 30 days = rejection - Small Successions → applies to any estate 1) valued at 125,000 or less; 2) w mo immovable property other than ---3) and the sole heirs are the surviving spouse - LA CCP art. 3421 **DIVORCE** - Venue → parish where either party domicile or parish of last matrimonial domicile - Living Separate and Apart - 180 days → no children, adultery, or felony conviction or abuse - 365 days for minor children - 102 Divorce - steps required under code - this is when the divorce filed before passage of time - 1\. petition for Divorce - 2\. sherrifs return or waiver of service - 3\. rule to show cause - 4\. sheriff return - 5\. another affidavit of mover - deemed abandoned if rule to show cause not filed within 2 years of service of petition or waiver **TUTORSHIP** - venue → parish of surviving parent or custodial parent, or where minor resides - Types - Natural = surviving parent - By will = nomination in will or authentic act - legal = appointed by court from among relatives - datitive = where minor has no parents or relatives - Removal of Tutor on 3 grounds - 1\. mismanagement of minors property - 2\. becomes disqualified - 3\. incapable of discharging duties **EMANCIPATION** - venue → parish where party domiciled - Petition requirements - must be verified by all petitioners - name, domicile, age and current address - why good cause exists for the emancipation - if limited judicial emancipation is requested - descriptive list and location of minors - Recordation → clerk of court must record all judgments relating to emancipation in conveyance records - within 15 days of signing of judgment petitioner must cause judgment to be recorded in conveyance records and mortgage records of every other parish where minor own immovable **INTERDICTION** \[ An interdiction is a legal process where a court is asked to determine, from testimony and other evidence presented, whether a person is unable, due to an infirmity, to consistently make decisions regarding his person and/or his property, or to communicate those decisions. If such a finding is made, the court appoints someone to make these decisions for him\]. - venue = parish of interdicts domicile - appointment of attorney → court will appoint if on petitioners motion - if defendant retains attorney or competently waives assistance of attorney, the court discharges appointed attorney - D attorney must visit and discuss case w defendant and failure can = sanctions - Appointment of Examiner → court may appoint examiner and compel examination of D. - examiner must submit a written report not less than 7 days prior to hearing - hearing → by summary proceeding - service on D and all persons named must be made within 10 days prior to hearing - defendant has right to be present, presence evidence, testify, and cross examine witnesses - court may conduct hearing in D absence if good cause exists - BOP → on petitioner to prove facts by **clear and convincing evidence** - **Recordation → within 15 days of qualification, t**he court appointed curator must file every judgment of interdiction in conveyance records and mortgage records of every parish where interdict owns immovable prop - Post Judgment Proceedings → court or any person, including interdict, may move to modify or terminate the interdiction because the interdiction is excessive, insufficient, or changed circumstances - court will grant the motion if facts are proven by *preponderance of the evidence* **EVICTION** - when lessee's right to occupancy ceases→ lessor may deliver written notice to vacate **within 5 days** - if lessee's whereabouts are unknown, then notice and pleadings can be attached to door - if lessee fails to vacate→ *lessor may serve rule to show cause* to deliver the premises - lessor may also take immediate possession on reasonable belief that premises has been abandoned - RTSC why lessee should vacate premises is heard no earlier than 3rd day after service - if lessee fails to vacate within 24 hours of judgment, court must issue a warrant directing the sheriff to take possession (sheriff can break down door if necessary) - NO SUSPENSIVE APPEAL unless D contested the rule and **posted bond within 24 hours of the judgment of eviction** **EXTRAORDINARY REMEDIES** - Habeas Corpus - writ of HC is a writ commanding a person who has another in his custody to produce him in court and state the authority for custody - often in adoption disputes - **Mandamus** - writ of mandamus is directing a public officer to perform a ministerial (non discretionary) duty required by law - or directing a corp/LLC to perform a duty required by charter, bylaws, or law to recognize the rights of shareholders/members - Quo Warranto - writ of QW is directing an individual to show by what authority he claims to hold public, corporate, or LCC office **5 Attorney Obligations as an officer of court:** 1. act with decorum that shows dignity and respect of court 2. no interruption of opposing counsel or impede orderly judicial business 3. treat all participants with respect 4. not encourage or produce false evidence 5. not deceive the court **​​When a lawyer signs a pleading, he certifies that the has read the pleading and to the best of his information, knowledge and belief formed after reasonable inquiry, that the pleading: is** - 1\) not being used for [improper purpose] such as to harass, delay, or increase court costs; - 2\) it is [warranted by existing law or non frivolous argument] for the modification, reversal, or extension is supported by law; - 3\) it is supported or is likely to have [evidentiary support]; - 4\) and that each [denial is supported by evidence or reasonably based on the lack of information or belief]. **The signature of a lawyer on a discovery certifies that the lawyer he has read the discovery request, response, or objection and based on information, knowledge, or belief formed after reading:** - 1\. it is consistent w discovery rules and warranted by existing law or good faith argument for the extension, modification, or reversal of existing law; - 2\. not interposed for an improper purpose such as to harass, delay, or increase costs - 3\. not unreasonable, unduly burdensome, or expensive given the nature of the litigation