Laccp

Front 1

Co-owners want to file partition action before particular city court judge. Can they?

Back 1

City courts have no jurisdiction over partition actions

Front 2

Two Louisiana residents want to adjudicate in a Louisiana court a petitory action to settle ownership of a tract of land in Texas. Does the Louisiana court have jurisdiction?

Back 2

No. A Louisiana state court does not have jurisdiction to adjudicate ownership of immovable property located in other states.

Front 3

Out of state bank loaned money to a nonresident defendant. The loan was executed out of state but the nonresident owns a Louisiana immovable. Bank wants to get money judgment in Louisiana against defendant. Procedure?

Back 3

With no other contacts to Louisiana, personal jurisdiction is doubtful under Schaffer v. Heitner. There is a possibility of non-resident attachment of immovable property in Louisiana. Action brought in parish where immovable is located and must proceed by attachment of property pursuant to writ of attachment. Curator ad hoc will be appointed to represent non-resident defendant, with duty to attempt to locate and give notice of action. If located can choose to defend or not. If not, curator defends. If plaintiff gets judgment, sheriff enforces by writ of fieri facias directing sheriff to seize and sell. Quasi in rem judgment limited to value of seize property.

Front 4

A Georgia company’s only contact with Louisiana is from a Louisiana resident company calling it to place order after seeing advertisements in national publication. Before this order, the Georgia company had only made one sale in Louisiana, which also took place after being called by the Louisiana customer. The product is now found defective, and a Louisiana resident sues the Georgia company in a Louisiana court. How can company try to avoid litigating in Louisiana court? Will it succeed?

Back 4

Georgia company should file a declinatory exception for lack of personal jurisdiction. In order for Louisiana court to exercise jurisdiction over a non-resident corporation, the non- resident must have minimum contacts with Louisiana, such that maintenance of action in Louisiana courts does not offend traditional notions of fair play and substantial justice. In applying this test, courts look to whether nonresident has purposefully directed its activities to the forum state. Here, the Georgia company is likely to lose its declinatory exception. The Georgia company has not directed any marketing towards Louisiana specifically, and it has not registered to do business in the state. It has on two instances taken orders from Louisiana customers who called it, and on at least one occasion shipped software to those customers in Louisiana. Since this shipment to Louisiana contained a product that caused harm in Louisiana, and since it advertised in national publications signaling a desire to do business nationally, there will likely be enough grounds for courts to exercise jurisdiction

Front 5

Nonresident debtor has defaulted on an agreed payment of $10,000. Currently the nonresident debtor has movable property worth $30,000 located state, but only for next three days. How to protect creditor’s interest?

Back 5

The creditor should file a petition for writ of attachment to have property seized. Attachment can be based on the fact debtor is a non-resident with no duly appointed agent for service of process in state. Court may therefore exercise quasi in rem jurisdiction over the debtor by attaching his property. Judgment can only be executed against property for its value. There is no personal judgment against debtor.

Front 6

Where must a proceeding to open a succession be brought?

Back 6

Proceeding to open succession must be brought in the parish where decedent was domiciled, not in others where he might have died or owned property. This venue is non-waivable

Front 7

There is a property damage tort suit against the Driver of truck that damaged a car and the Company that employed the Driver. The accident occurred 5 months ago in Rapides Parish. The Company is corporation with registered office in East Baton Rouge Parish. Driver was domiciled in East Baton Rouge at time of accident but has since moved to Bossier. Plaintiff resides in Acadia Parish. Where is venue proper? Why?

Back 7

Suit can be brought in Rapides because that’s where the wrongful conduct occurred and where damage was sustained. Suit can be brought in East Baton Rouge because that’s where Company is domiciled and where the Driver was domiciled in past year. (After change of domicile, can sue in old or new parishes for a year unless declaration of intent to change domicile is filed.) Bossier is also proper, since this is current Driver domicile. Driver and Company are joint tortfeasors, and action can be brought against all in a venue proper to any. No long arm defendants, and plaintiff’s uninsured motorist carrier apparently not a defendant, plaintiff’s domicile parish not allowed.

Front 8

Five months after answer was filed asserting no exceptions in tort suit, ∆ determines case is proceeding in improper venue, the ∏’s domicile, and that all witnesses and relevant facts to be found are in another parish, where the accident actually occurred. Can anything to contest venue? To change it to the other parish?

Back 8

Venue cannot be contested. Declinatory exception of improper venue must be brought before or with answer or it is waived. To change venue, have to file motion for forum non conveniens, which allows transfer to parish where case might have originally been brought in the interests of justice, convenience of parties and witnesses. Forum non conveniens not allowed where case has been properly filed in venue of plaintiff’s domicile, but here the suit was improperly filed in plaintiff’s domicile parish.

Front 9

Union Parish client complains LLC contractor abandoned the job at his home and caused him to incur greater costs so that it could move south to work on post-Katrina reconstruction projects. LLC registered business office was located in Morehouse until last month, and is now located in St. Tammany Parish. No agent for service of process has been appointed by company. Where will venue be proper, and how will service of process be made on LLC?

Back 9

Venue is proper in Union Parish, where work occurred under the contract and damages were sustained. It will also be permissible in St. Tammnay, current location of LLC registered office. Since there is no agent designated for service of process on LLC, process can be served personally on any manager, and if there are no managers, on any member, or personal service on any employee of suitable age and discretion at any place it regularly conducts business.

Front 10

Your client is sued on a contract dispute by a Terrebonne parish company. Suit is filed in Terrebonne parish. Contract was executed in client’s home parish of Caddo by travelling salesman of company who made sales call to client’s home. Initial payments were sent to Terrebonne parish. Product delivered there, client finds it unsatisfactory, refuses to pay. Is Terrebonne parish a proper venue? Does it matter that contract client signed had a provision waiving all objections to venue on a suit brought by seller to recover payment?

Back 10

Terrebonne is likely not a proper venue. In accordance with art. 76.1, an action on a contract may be brought in parish where contract was executed or where work or service was performed or was to be performed. None of these apply here, but company might argue that Terrebonne is proper because that’s where payments were made. The contract clause waiving venue objections is irrelevant because an objection to venue may not be waived prior to institution of an action.

Front 11

What is not an appropriate venue for an action seeking to modify child support obligation?

Back 11

The parish where the person paying support is domiciled is NOT an appropriate venue for an action seeking to modify a child support obligation.

Front 12

∏ is a resident of Bossier Parish. ∏ wants to sue Corporation for breach of contract. Corporation has a registered office in Calcasieu Parish. Contract was for construction of a camp in Sabine Parish. ∏ signed the contract in Bossier, Corporation signed the contract in Calcasieu. All work for the contract was performed in Sabine. Work was supervised from Corporation’s office in Natchitoches Parish. Where is venue proper?

Back 12

Venue is proper under art. 42 in Calcasieu because that’s where defendant corporation’s registered office is located, and also under art. 76.1 because that is where Corporation executed the contract. Venue is proper in Bossier because that’s where plaintiff executed the contract. Venue is proper in Sabine under art. 76.1 because that is where the work under the contract was performed. Venue is also proper in Natchitoches under art. 77 because Corporation had a business office there exercised supervision over the matter.

Front 13

At trial you discover the judge is being represented in an unrelated personal matter by a senior partner of the opposing counsel.

Back 13

You can file a motion to recusal. A judge may be recused if an attorney in a case represents him at the time of hearing. Here, though, it’s a partner, not the attorney himself, so that may not be a permissive ground for recusal. Rely on general ground that judge’s connection with opposing attorney’s firm would so bias or prejudice his view that recusal is proper.

Front 14

∏ in slip and fall suit dies by an unrelated cause while it’s pending. How can the action be sustained?

Back 14

Amend the petition to assert a survival action and file a motion to have ∏’s legal successor substituted to represent the interest of the deceased plaintiff. Motion may be filed ex parte.

Front 15

Client comes to you after death of his lawyer. Patent infringement was filed against him four years ago and discovery was propounded to client at same time. This discovery was never answered and the record and files of previous counsel reveals no other action or activity in the case since that time. What course of action do you recommend?

Back 15

Client doesn’t need to take action since suit has been abandoned. No step has been taken in prosecution or defense of case in four years, and period for abandonment is three years. Abandonment is effective without formal order, but Client could file ex parte motion to dismiss on grounds of abandonment, and court will enter formal order of dismissal.

Front 16

Notice of lis pendens has been placed incorrectly in the mortgage records of property owned by your client. (Action is for payment for improvements, and lis pendens notice can only be attached when it affects title to immovable or asserts mortgage.) Client wants to cancel notice of lis pendens, and you contact recorder of mortgages to have it done. She refuses because she’s concerned you might be wrong. Remedy?

Back 16

To file writ mandamus directed to recorder of mortgages, a public officer, to compel her to perform a ministerial duty required by law: in this case, removing an unauthorized inscription in public records.

Front 17

Right action and venue for claims of stock broker buying club and 15 other clubs across the state against the stock broker for nondisclosure of conflict of interest?

Back 17

Right action: class action. To maintain class action, requirements are: numerosity such that it would be practical to join all plaintiffs, questions of fact and law common to class, claims are typical of those of the class, ∏s will fairly and adequately represent interests of class, and there are ascertainable criteria for objectively defining class…Venue: the proper venue of the stock broker. When a class action is brought on behalf of a ∏ class (as is the case here), the action shall be brought in the parish of proper venue as to the ∆. When the action is brought against a class of ∆s, venue is proper as to any member of the class named as a ∆.

Front 18

Service of process received by defendant’s brother at her place of work. Valid?

Back 18

No. Proper domiciliary requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served. Alternatively, personal service.

Front 19

How to object to improper service of process.

Back 19

Declinatory exception of insufficiency of service of process, which must be raised prior to or in the answer or prior to confirmation of default judgment, and not later than any other declinatory or dilatory exceptions.

Front 20

Service of process when whereabouts are unknown for an out of state defendant

Back 20

Served via registered or certified mail to last known address under long arm statute. If long arm service can’t be made, a curator ad hoc will be appointed to represent. If non-resident attachment of the property is the basis of jurisdiction, pleadings can be served on curator.

Front 21

When must service of process be made on ∆s?

Back 21

Service of process on all named ∆s must be requested within 90 days of commencing action. If not done, other party can file contradictory motion to dismiss for failure to request timely service.

Front 22

Sheriff attempts to serve process on ∆, can’t find him and is told he no longer lives at his last known address. Your client assures you he’s just hiding. What can you do?

Back 22

You can have court appoint a private person, who is not a party, over the age of majority and residing in state, to make service in same manner as sheriff. Motion should state that sheriff has been unable after five days of diligent effort to make service.

Front 23

Your client brings you two default judgments, entered against him and his wholly- owned corporation XYZ in a suit against both. Client explains suit involved contract dispute with XYZ and that he should face no personal liability. He is the corporation’s registered agent for service of process. Both he and XYZ were served by domiciliary service on his wife at their home on 3/5/07. On 7/20/07, plaintiff obtained a preliminary default judgment against both client and XYZ. On 10/15/07, the default judgment was confirmed in open court. Client was personally served with both judgments on 10/25/07. Does client have a legal basis to challenge either or both of the two default judgments? If so, what is the procedure?

Back 23

Judgment against client can’t be challenged: all formal requirements and delays for default judgments met (15 days after petition, 2 days after preliminary default judgment) and proper service of both petition and confirmed judgment was made. No grounds to seek nullity of judgment for either vices of form or substance exist. It does not matter that he had a valid substantive defense at one point; it is too late now. However, judgment against XYZ can be challenged for lack of proper service of the petition. The petition should have been served personally on corporation’s registered agent, the client, not through domiciliary service on his wife. XYZ should file a petition for nullity of judgment for vices of form which can be brought at any time.

Front 24

To answer an original petition in district court:

Back 24

15 days from date of service of petition, or 30 days if issued by long-arm.

Front 25

To answer a petition after an exception is overruled

Back 25

10 days after overruling

Front 26

To amend an original petition w/o leave of court:

Back 26

any time before answer is served.

Front 27

To amend an answer:

Back 27

any time within 10 days after it has been served

Front 28

To file a suspensive appeal:

Back 28

within 30 days of expiration of the delay for applying for a new trial

Front 29

To file a devolutive appeal:

Back 29

within 60 days of expiration of the delay for applying for a new trial.

Front 30

To answer an appeal in a court of appeal:

Back 30

appellee only required to answer appeal if he wants to modify judgment or demands damages against appellant. If so, must answer within 15 days after return day or the lodging of the record, whichever is later.

Front 31

To answer interrogatories

Back 31

within 15 days after service of interrogatories.

Front 32

To apply for a new trial:

Back 32

7 days after notice served of final judgment, exclusive of legal holidays

Front 33

To appeal issuance of preliminary injunction

Back 33

within 15 days from date of judgment issuing injunction.

Front 34

To request service of process on all named defendants in a civil action:

Back 34

90 days after commencement of action.

Front 35

To answer request for admission:

Back 35

15 days after service of request for admission.

Front 36

Mandamus action against Governor to compel him to cancel leases covering water bottoms, attached with default judgment against Landowner to have leases declared nullity. Remedy for Governor?

Back 36

Dilatory exception of unauthorized use of summary proceedings. Mandamus is appropriate to compel performance of ministerial duties of public officer, not discretionary duties, like decision to lease water bottoms. Dilatory exception of improper cumulation of actions: mandamus as a summary proceedings employs a different form of procedure than default judgment, an ordinary action. Dilatory exceptions must be raised together, before or with answer. Effect dilatory action against mandamus would be to dismiss it. Plaintiff would have to re-file with an ordinary proceeding.

Front 37

To apply for an appellate court rehearing after receiving an appellate court opinion:

Back 37

within 14 days of the mailing of the notice of judgment and opinion by court of appeal.

Front 38

To apply for writ of certiorari from Louisiana Supreme Court after appellate court decision (assuming rehearing not asked for):

Back 38

within 30 days of mailing of notice of judgment and opinion by court of appeal.

Front 39

What must be prayed for in _____ proceedings? Does it depend upon the nature of service on a nonresident defendant?

Back 39

If proceeding is against person via long arm statute, proceed as if in any other ordinary proceeding and pray for enforcement of mortgage or any other damages. If non-resident attachment is used, writ of attachment must be issued and prayer would include seizure of the lot in accordance with writ of attachment.

Front 40

What does an attorney certify when he signs a pleading?

Back 40

That the attorney has read the pleading, that it is reasonably well grounded in fact, that it is warranted by existing law or a good faith argument to change the law, and it is not being imposed for an improper purpose, such as to harass, delay or increase litigation costs.

Front 41

What is the right of discussion?

Back 41

Right of discussion permits a secondary debtor to require the creditor to exhaust the assets of the primary debtor prior to proceeding against secondary debtor. If creditor fails to do so, secondary debtor can interpose plea of discussion as a dilatory exception

Front 42

Having answered a fire insurance claim petition with a general denial that the fire resulted from ∏’s intentional act, ∆ introduces evidence of fraud by the ∏ at trial. Permissible?

Back 42

∏ can object that ∆ is required to allege any affirmative defenses in its answer or risk waiving the defense. Since ∆ is alleging fraud, which also must be pleaded with particularity, ∆ should have specifically designated fraud (based on arson) as an affirmative defense, rather than as part of a general denial. Failure by ∆ to allege affirmative defense in answer means he may be precluded from introducing evidence of it at trial. ∏ should timely object to fraud evidence on grounds that the ∆ waived the affirmative defense by failing to plead it.

Front 43

Is there a motion ∆ may make in response to ∏’s objection which will permit introduction of the fraud evidence?

Back 43

File a motion for leave to amend the answer to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings. ∆ can argue that ∏ implicitly consented to trial on the fraud issue because it was contained in the general denial of the answer and plaintiff failed to object at that point. Alternatively, court may allow the pleadings to be amended and shall do so freely when the presentation of the merits will be served thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice in maintaining his action on the merits. Here, the judge should grant motion. Even though fraud wasn’t labeled as an affirmative defense, ∏ had fair and adequate constructive notice of it through the general denial alleging that the fire was caused by “intentional act,” which necessarily implied fraud.

Front 44

∏’s witness makes an admission in trial testimony that establishes that the claim was prescribed at the time of filing. No peremptory exception for prescription was filed before trial. Can it be filed at this point?

Back 44

The peremptory exception for prescription can be filed at any time in trial or appellate court before matter is submitted for judgment in either

Front 45

List the three kinds of exceptions, their purposes, and functions.

Back 45

Declinatory exceptions decline the jurisdiction of the court for lack of subject matter jurisdiction, personal jurisdiction, and proper venue, among other reasons. Dilatory exceptions delay the action for errors in form in the original petition or to ask for more information. Peremptory exceptions seek to have the claim dismissed and declared invalid as a matter of law.

Front 46

You pled dilatory exception of prematurity in your answer. Trial is about to commence, and the exception has yet to be heard. Can the exception be tried and decided during the trial of the case?

Back 46

No. When dilatory exceptions are pled with the answer, they must be tried and decided in advance of the trial of the case.

Front 47

Your client has been sued for breach of contract. However, your client believes the suit improper because the contract contains a mandatory arbitration clause for any dispute arising under it. What can be done?

Back 47

File (1) either a dilatory exception of prematurity or a motion to stay proceedings in the trial court pending arbitration and (2) a motion to compel arbitration. In each of the pleadings, I would assert that the mandatory arbitration clause requires arbitration and bars immediate trial court proceedings

Front 48

Sued by full interdict in his own name. What should you do?

Back 48

File a dilatory exception of lack of procedural capacity since interdicts may not file in their own name. Curator must sue for them.

Front 49

Petition filed by three ∏s, one claiming wrongful discharge, one claiming slip and fall, one claiming false imprisonment. Remedy?

Back 49

File dilatory exception of improper cumulation of actions. Two or more parties may be joined as ∏s in same suit against a single ∆ only if: (1) community of interest between the parties, (2) jurisdiction and venue proper for all, and (3) actions are mutually consistent, and use same form of procedure. Here, 2 and 3 are met but not 1.

Front 50

What if the trial court turns your dilatory exception pending the arbitration or your motion to compel arbitration down? Do you have any recourse?

Back 50

Since the denial would be an interlocutory judgment, not a final judgment, an appeal is not available. However, I could seek a supervisory writ in the appropriate state court of appeal arguing the trial court erred in allowing proceedings to go forward.

Front 51

What must the court determine when seeking an exception of no cause of action seeking to dismiss only one of a multiple of claims?

Back 51

(1) Whether petition asserts several demands or theories of recovery based on a single causeof action arising out of one transaction or occurrence, OR(2) Whether the petition is based on several separate and distinct causes of action arising outof separate transactions and occurrences.If (1), overrule exception of no cause of action if petition states cause of action as to any demand or theory of recovery. If (2), court can maintain exception in part, but partial judgment will not be a partial final judgment which is appealable, unless there is irreparable injury. But a party could apply for supervisory writs.

Front 52

Company A sued for accident injuring ∏. Injury to ∏ caused by a part that was supplied to Company A by Company B. What action should be taken on behalf of Company A and why?

Back 52

File third party demand because the defective part caused the injury; third party may be liable for all or part of ∏’s injury

Front 53

∆ files a reconventional demand entirely unrelated to any claim or issue in ∏’s demand, asking for amount much higher than properly prayed for in ∏’s demand. Dismissible?

Back 53

No. ∆ may assert in reconvention any cause of action he has against ∏ in principal action. No limit on amount of relief sought. [note: reconventional demand = counterclaim]

Front 54

Intervention to join wrongful death action filed 2 months and 13 days earlier. ∆ objects on grounds that the claim had prescribed by the time of the intervention filing. Result?

Back 54

An intervention is an incidental demand, which is not barred by prescription so long as it was not barred at the time of main demand and filed within 90 days of service of the main demand. Here, less than 90 days, so not barred.

Front 55

Client (∆) wants to assert timber trespass claim against co-∆ in a partition action that involves a different piece of land than the one trespassed on. Permissible?

Back 55

No. This is a reconventional demand and reconventional demands are made by the ∆ in the principal action all causes of action he may have against the Plaintiff that arise out of the same transactions or occurrence

Front 56

Your clients A and B are sued for a $75,000 debt. They assert they have no personal liability at all and that the transaction concerns their wholly owned company, ABC Corp. Furthermore, they claim plaintiff actually owes ABC Corp $55,000. What should be done?

Back 56

Have ABC Corp intervene as a defendant to defend A and B from claim. Third parties such as ABC Corp may intervene in a lawsuit to enforce a right related to the pending suit, in this case, to protect company owners from being personally held liable for a corporate debt. After being joined, ABC Corp should reconvene against plaintiff to assert its $55,000 claim against her. The reconvention claim does not have to be related to plaintiff’s claim in main demand. [And, according to Richard Drew, A and B should also file motion for summary judgment since there’s supposedly no question of material fact as to their personal liability, to get out of the case entirely.]

Front 57

What action can be taken to protect one’s property interest if not named as ∆?

Back 57

If not made a ∆, it can intervene to become one to protect its property interest.

Front 58

Defective product litigation. Distributor ∆ has an indemnity agreement for any lawsuit costs granted by Manufacturer who is joined as ∆.

Back 58

File petition for cross-claim against co-∆, requesting indemnity for any damages assessed in original action. Allowable since it arises out of the same transaction or occurrence as the original action

Front 59

∆’s answer fails to deny any essential elements of ∏’s claim. Can you file a motion for judgment on the pleadings, under these facts?

Back 59

Any party may move for judgment on the pleadings after the answer is filed but within such time as not to delay the trial. Allegations of fact in complaint not denied by ∆ are considered true.

Front 60

∏’s petition in personal injury case asks for $500,000. Permissible?

Back 60

No specific monetary demand may be included in prayer of petition. A motion to strike is the appropriate remedy for improperly requesting a specific monetary award. Attorney’s fees/costs are available if a motion to strike is necessary.

Front 61

Injury caused by independent contractor over whom homeowner enjoyed no control. Homeowner and contractor sued. Pretrial motion to terminate by homeowner?

Back 61

Motion for summary judgment that there is no genuine issue of material fact as to homeowner’s liability and that homeowner is entitled to judgment as a matter of law. No question that worker was independent contractor and no question there’s no vicarious liability for his acts. Burden on ∏ to show liability, so ∆ only has to knock out one essential element. Motion can be supported with affidavits from competent affiants, on personal knowledge, containing facts admissible at trial. Deposition testimony can qualify under this same standard and be introduced. Also, documentary evidence like contracts can be appended to affidavits

Front 62

Can ∆ move for involuntary dismissal when ∏’s case has concluded?

Back 62

Yes. If ∏’s case has concluded and defense believes it unproven, ∆ may without presenting evidence of his own move for involuntary dismissal on the ground that upon the facts and law, ∏ has shown no right to relief. This does not affect his right to present evidence later if the motion is unsuccessful.

Front 63

∆ believes that while he is liable, the damages are very small. ∏ refuses settlement without counteroffer. Can anything be done to recover costs of defending suit from plaintiff?

Back 63

Make a written offer to settle all claims at least 30 days prior to trial and state that it is made pursuant to CCP art. 970. Offer can be made without admitting liability. If offer is refused and final judgment obtained by plaintiff is at least 25% less than the amount of the offer of judgment, the plaintiff must pay defendant’s costs, exclusive of attorney’s fees, incurred after offer was made, as fixed by the court. This is called a motion for judgment on offer of judgment.

Front 64

Following an adverse jury verdict, a juror approaches to advise you of what she believed to be improper conduct by someone affiliated with opposing party. You would like to move for a new trial based upon this reported behavior. What is the time delay for filing such new trial motion and what if anything must you file with the motion?

Back 64

You must file within 7 days, excluding legal holidays, from mailing of service of the notice of signed judgment. Motion must state grounds for the new trial request, which include the peremptory grounds of (1) the verdict is clearly contrary to the law and evidence; (2) discovery of new evidence that could not have been discovered with due diligence before judgment (3) juror was bribed or compromised. Here there is possibly a claim a juror was compromised. Motion would have to include a verified affidavit of the facts on which the motion was based. Alternatively, you may urge the motion on discretionary grounds which allows a new trial in any case if there is good grounds therefore.

Front 65

You are sued in state court. The suit involves the same parties, claims and subject matter as a lawsuit filed six months earlier in federal court, still pending. Do you have to defend against both suits? Is there a way to only have to defend against one?

Back 65

When a suit is filed in Louisiana court while another is pending in federal court on the same transaction or occurrence between the same parties in the same capacities, ∆ (or court on its own motion) can move to stay all proceedings in the second suit until the first has been discontinued or a final judgment has been rendered under CCP art 532. ∆ could also file a declinatory exception of lis pendens. Court may also stay on its own motion. [If the first suit had been pending in another Louisiana state court, not a federal court, the ∆ could have moved to have any later suits between same parties on same transaction dismissed. If he doesn’t the ∏ can move forward on all, but the first one that gets to final judgment is conclusive of all under CCP art. 531.]

Front 66

∏ claims damage to land. ∆ has asked permission for expert to examine land to assess damage and ∏ refuses. Remedy?

Back 66

File a request for production and entry upon land which would permit expert to enter and assess. Request must set forth premises to be inspected and specify a reasonable time, place and manner of making inspection and related acts. ∏ has 15 days from service of request to either permit inspection or object to it.

Front 67

At start of litigation you responded accurately in full to interrogatory asking your client to identify all witnesses to accident. Now, two weeks before trial, you learn of a new witness. You won’t be calling her at trial, since her testimony would be adverse to your client’s interests. Do you have a responsibility to disclose her identity to opposing counsel?

Back 67

There is usually no duty to supplement discovery responses which were complete when made. However, there is an exception to this rule regarding the identity of a new witness with knowledge of discoverable issues. Witness must be divulged

Front 68

Former accountant has documents your client needs for your case, refuses to give them. You don’t want the accountant testimony. How do you get the record documents without taking her testimony?

Back 68

If the accountant is not a party to the lawsuit, serve the accountant with a subpoena duces tecum wherein the court orders her to produce the documents. If the accountant is a party to the proceedings, you may simply propound a request for production of documents.

Front 69

You are defending a personal injury suit. There has already been an independent medical exam of ∏. Can you also obtain exam by a vocational rehabilitation expert?

Back 69

Yes. File request for physical examination under art. 1464 which allows you to compel physical or mental exam of any party when the physical or mental condition of the party is at issue. Such exams may be conducted by physical rehabilitation expert. Plaintiff would be entitled to subsequent report if he requests it. If he does, he would be required to turn over to defendant the report prepared by the plaintiff’s own vocational expert.

Front 70

What is the general scope of discovery allowed by La. CCP?

Back 70

Parties may obtain discovery regarding any matter not privileged which is relevant to the subject matter of the litigation. The information sought need not be admissible if it is reasonably calculated to lead to the discovery of admissible evidence.

Front 71

Is a written document prepared in anticipation of litigation subject to discovery?

Back 71

A written document prepared in anticipation of litigation constitutes work product and, as such, is discoverable only if the party seeking discovery can demonstrate that denial of it will unfairly prejudice him in preparing his claim or defense, or cause him undue hardship or injustice.

Front 72

Is a litigant required to organize and label responsive documents to correspond to the specific categories of requests for production of documents?

Back 72

Not necessarily. A party may organize produced documents to correspond with the requests OR produce them as they are kept in the usual course of business.

Front 73

Answer to interrogatories is contained within the documents requested for production. Is there a way to produce the documents and answer the interrogatories at the same time?

Back 73

Yes. Where answers to interrogatories can be obtained from the business records of a party, that party can specify where in the records they are to be found (if burden is substantially similar for both parties) and make them available in lieu of answering the interrogatories.

Front 74

Are pre-litigation emails between senior managers discussing possible litigation strategies and other issues about the potential suit subject to production?

Back 74

No, as writing produced in anticipation of litigation, they are privileged under the work product rule. The other party would have to show that withholding them from discovery imposes unfair prejudice, undue hardship or justice upon them.

Front 75

You represent plaintiff in a products liability suit that will commence in six months. How do you obtain as much information as possible about the opposing party’s expert witnesses and the opinions they hold?

Back 75

For expert witnesses expected to testify at trial, there are several options available. First, names of all such testifying experts can be obtained through the service of interrogatories. Second, by contradictory motion, you can request the opposing party to provide written reports prepared and signed by each of the experts disclosing their opinions on the case and the reasons therefore and any data or information upon which whose opinions are based. The reports must also include exhibits, qualifications, publications of the previous ten years, the compensation received for the experts’ services, and the cases in the preceding four years in which each testified as an expert. The reports must be filed 90 days before trial, or if the witnesses are used for rebuttal only, within 30 days after the opposing side's expert report is disclosed. After expert reports are filed, I can discover facts known by these testifying experts with a notice of deposition or deposition subpoena.

Front 76

Can an attorney be deposed?

Back 76

Usually no because privileged attorney-client communications could be disclosed. No attorney of record representing the ∏ or ∆ may be deposed except under extraordinary circumstances and then only by order the district court after contradictory hearing.

Front 77

Opponent’s lawyer is making long objections during deposition that seem to be guiding testimony. Permissible?

Back 77

Not permissible. Objections during deposition must be concise and non-suggestive. Most objections, like to competency of witness, are preserved for trial even if not made. The only objections that are waived are those that could be cured by prompt objection at deposition, such as objections to form of question.

Front 78

Opponent’s lawyer is asking questions at deposition that that delve into unrelated personal matters, apparently to frustrate and embarrass the deponent. Explain two things you can do to remedy this.

Back 78

You can instruct the deponent not to answer questions that are harassing or not reasonably calculated to lead to admissible evidence. You can terminate the deposition if it is being conducted in bad faith or to harass or embarrass deponent.

Front 79

You want to depose certain company officials who knew about the manufacture and design of a defective product, but you don’t which ones are the most knowledgeable. How can you obtain their depositions without knowing their identity?

Back 79

File an article 1442 notice of an organization, naming the company as deponent, and setting forth the matters on which the examination is requested. The organization must then designate one or more officers or other persons to testify as to the matters known or reasonably available to corporation.

Front 80

A witness living in Texas refuses to return to Louisiana to have his deposition taken, which is absolutely necessary to establish an essential element of your case. How may you obtain the Texas witness’ testimony?

Back 80

Several options: (1) If witness is willing to testify but not travel, you may take deposition by telephone if all parties agree. (2) If unwilling to testify at all, you can compel the witness to do so in Texas by letters rogatory. Texas law would govern compulsory process to require witness to submit to deposition. You would give written notice of deposition to all parties and apply to the Louisiana trial court for letters rogatory, addressed to the appropriate Texas court, requesting the court to compel witness’ attendance at deposition. (3) If witness is ever temporarily in Louisiana, you can serve subpoena on him there.

Front 81

As ∏’s lawyer, you learn that ∆’s expert is relying upon work performed in this matter by another expert retained by the ∆ who will not be called to testify. Can you depose the consulting, non-testifying expert? What would have to be shown to do so?

Back 81

A party can discover facts known by and opinions held by a non-testifying expert only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain the facts and opinions by other means. If the non-testifying expert has unique information not obtainable from any other source, the presumption that his opinions are non-discoverable can be overcome. In this case, this may be true. Moreover, it appears that defense is using testifying expert as just a cloak and mouthpiece for the non-testifying expert to shield his opinions from discovery, which also weights towards overcoming the presumption.

Front 82

Trial judge improperly comments on or endorses expert witness after his testimony. Remedy?

Back 82

Move for a mistrial. Mistrial may be granted after a hearing, on motion of any party. Judge may not comment upon the facts of the case in front of the jury by commenting on evidence, or give an opinion on what has been proved. Implicitly endorsing expert as “obviously very knowledgeable” after testimony counts.

Front 83

Can witness, domiciled in Louisiana, who lives 200 miles from trial venue be compelled to testify?

Back 83

Yes. Any witness in a civil case who resides or is employed in state may be compelled to testify wherever held in the state. (Note: when witness resides more than 25 miles from venue, ∏ must deposit funds sufficient to cover travelling expenses with clerk of court) However, the deposition of a witness may be used in any way at trial (including being read at trial) if the witness resides more than 100 miles from courthouse.

Front 84

Judge renders verdict after bench trial just by announcing who she’s finding for and then signing judgment prepared by winning party. As lawyer for losing party, what can you do to find out her actual reasons for ruling, and what time limitations does she face?

Back 84

You can request the court provide in writing its findings of fact and reasons for judgment, provided the request is made not later than 10 days after the mailing of the notice of the signing of the judgment.

Front 85

As judge, you think complex trial should be bifurcated to try the issues of liability and damages separately. The ∆ files motion to do this, ∏ opposes. Can you order the bifurcation?

Back 85

No. Judge can order separate trials of liability and damages, in a jury or non-jury trial, to simplify proceedings, permit a more orderly disposition of case, or otherwise in interest of justice, but only upon the consent of all parties. (In jury trial, also power to have damages tried before liability, but also only upon consent of all parties.)

Front 86

The ∏ has asked for a continuance on the grounds that one of its material witnesses who previously had not been deposed cannot be found. As ∆s lawyer, you do not believe testimony of missing witness will affect trial outcome. What can you do to maintain the scheduled start date of the trial and avoid the continuance?

Back 86

You can prevent a continuance by requiring the ∏ to disclose under oath the expected testimony of the absent witness, and if the ∆ admits the witness would so testify, the case would proceed to trial on the scheduled date.

Front 87

∆ in breach of contract suit raises affirmative defenses of lack of consideration and error in his reconventional demand, not his answer. Now that trial is about to proceed, is he barred from introducing evidence of these defenses at trial.

Back 87

He shouldn’t be, for several reasons. (1) ∆ raised the affirmative defenses in his reconventional demand, and ∏ failed to object, which could be deemed a waiver to the right to oppose the affirmatives defenses as not timely plead. ∏ should not have waited until trial. (2) Reconventional demand provided ∏ with adequate notice of the defenses, and he cannot claim surprise now or any real prejudice to his case. (3) Court can treat as an affirmative defense if they were “mistakenly” designated as part of reconventional demand, but this would likely only apply if reconventional demand was filed at same time as answer. In any event, the court will likely allow evidence to be introduced, perhaps after allowing ∆ to amend pleadings, which is in the court’s discretion when it will aid the material presentation of the case and poses no unfair prejudice to the other side.

Front 88

Trial judge finishes questioning jurors, then denies ∏’s lawyer any opportunity for voir dire.

Back 88

Parties and their attorneys have a right to examine prospective jurors. Trial judge can control scope of examination to prevent unfair or prejudicial questioning, but denying any voir dire is clear abuse of that power. ∏’s counsel should request continuance and leave to immediately file supervisory writs. He could also note his objections on the record and proceed with trial.

Front 89

If ∏’s petition requested trial by jury, and then 6 months later ∏ files motion to withdraw request for jury trial, may ∆ now file request for jury, despite not previously requesting one?

Back 89

Yes, ∆ may file request for jury trial within 10 days of the granting of ∏’s motion to withdraw her jury demand.

Front 90

Prospective juror relates during voir dire she suffered similar injury and won an award for it.

Back 90

Use a challenge for cause to strike prospective juror. Challenge is available when juror has formed an opinion or is otherwise not impartial. Also, request that judge issue a curative instruction to other prospective jurors to disregard comments. If the judge rehabilitates juror, use peremptory challenge.

Front 91

Jury requests to hear expert witness testimony again and to review medical documents introduced into evidence.

Back 91

Both are at judge’s discretion. Medical records can either be examined by jury in courtroom or taken back to jury room. Jury can be brought into court room and have testimony read back to them.

Front 92

What is the judge’s duty as to instructions she must give jury? What must be done to preserve your objection to an improper charge or instruction? When must it be done?

Back 92

After trial and all evidence and arguments, court must instruct jury on law applicable to the cause of action. Must be reduced to writing. Judge must instruct jury that they can take written copy of all instructions and charges with them, and any object or document in evidence when a physical examination thereof is necessary to verdict. To be able to appeal erroneous instruction, you must object either before jury retires to consider verdict or immediately after jury retires, specifically stating the matter to which you object and grounds of objection. If you object before jury retires, will have opportunity to make objection out of the hearing of the jury.

Front 93

After new ∆ added by amended petition 1 year after original petition, original ∆ requests jury trial 9 days after service of process on new ∆. No jury request had previously been made by any party. Timely filed?

Back 93

Yes. A party may request jury trial within 10 days of service of the last pleading directed to any issue triable by a jury. An amended petition adding a ∆ is such a pleading since it contains allegations of liability and requests for damages. Doesn’t matter that original ∆ didn’t file amended petition and wasn’t object of it.

Front 94

On a Friday you find: Petition filed 15 days previous, judgment of preliminary default entered 1 day previous. Remedy?

Back 94

You can still file responsive pleadings, either an answer or exceptions. Exceptions may be filed any time prior to confirmation of default. Preliminary default may not be confirmed until two full days, excluding legal holidays, after entry of preliminary default. Saturdays and Sundays are legal holidays, so default entered on a Thursday can’t be confirmed until following Tuesday. If confirmation of default is received premature, file a motion to annul the final judgment for vices of form. Default wasn’t valid.

Front 95

Confirmed default judgment awarded in parish court 12 days after personal service of process for $6500 in property damages, $1500 more than ∏ had asked for. Client (∆) comes to you 15 days after judgment to see if there is remedy.

Back 95

∆ in this instance can file action for nullity for vices of forms, which can be brought any time, based on court awarding default judgment greater than the amount prayed for in petition which is not a valid default judgment. Nullity action must be brought in the parish court which rendered judgment. [Note: In parish court, default judgment may be taken in 10 days, not 15, if ∆ fails to answer or respond. Moreover, it is immediately confirmed, and does not require entry of preliminary default two days prior as in district courts. Moreover, parish courts judgments must be appealed within 10 days of judgment or from service of notice of judgment when service is required. Here, petition had been served personally with petition, no service of notice of default judgment is required. Period to appeal has lapsed.]

Front 96

How will a judgment to enforce a mortgage be executed?

Back 96

If jurisdiction is based on the long arm statute, judgment will be executed in accordance with a writ of fieri facias directing sheriff to seize property and sell at auction. If judgment based on non-resident attachment, process is same, but judgment limited to value of property.

Front 97

Mortgage on Bossier Parish vacant lot and promissory note sought to be enforced in ordinary action against ∆ whose whereabouts are unknown and whose last known address was out of state.

Back 97

File ordinary action in court of proper jurisdiction and venue. Several bases of specific personal jurisdiction under long arm: contract signed in Louisiana, immovable owned in Louisiana, and cause of action arises out of each of these activities. Court could also attach immovable property and assert quasi in rem jurisdiction, but judgment would be limited to value of immovable. If proceeding in rem, must be preceded by attachment and appointment of a curator ad hoc for absent ∆. Bossier Parish, where immovable is located, would be proper venue.

Front 98

Guest passenger (∏) in wrecked vehicle wins judgment of $250,000 against ∆ driver. ∏ considers award woefully inadequate. Remedy at trial court level?

Back 98

∏ may file a motion for additur. This is an alternative to a motion for a new trial, on the issue of quantum alone, when the verdict is clearly contrary to the weight of evidence and a new trial could be granted on that basis alone. Quantum must be clearly separable from other issues in the case. ∆ must also consent to additur as an alternative to a new trial. If additur is entered, court will reform the jury verdict in accordance with the motion.

Front 99

∆ driver considers verdict completely unwarranted by evidence, and wrong as a matter of law, but he’s OK with jury award. Post-judgment relief in the trial court?

Back 99

Can file motion for judgment notwithstanding the verdict, or in alternative, for a new trial. JNOV/New trial motion must be filed within 7 days of judgment or mailing of service of notice of signing judgment. JNOV should be granted when the facts and inferences, considered in light most favorable to the opposing party, point so strongly in favor moving party that reasonable persons could not find for opposing party. In new trial motion, trial judge free to evaluate evidence without favoring either party, may draw his own inferences, evaluate witness credibility. New trial standard is whether verdict was clearly contrary to law and evidence.

Front 100

You represent ∏ who prevailed in suit for money damages. You reviewed a judgment prepared by defense counsel, but after Judge signs it you realize it contains a mathematical addition error that reduces the size of the award. What can you do?

Back 100

You can file a motion to amend the judgment, which can be amended at any time by the trial court to address calculation errors, as happened here.

Front 101

You have won a judgment specifically enforcing a contract to sell immovable property and directing seller to execute instruments necessary to complete the sale to your client. Seller refuses to execute these instruments. What action can you take in order to force the sale of the property?

Back 101

File a writ of distringas. When a judgment orders a ∆ to do an act and he refuses to comply with order, other party may by contradictory motion obtain the following remedies: (1) court may distrain the property of the party until they comply, (2) an order finding the party in contempt, and (3) a judgment for any damages buyer may have sustained. Buyer can also sue for damages in separate action. Buyer can also seek specific performance directing sheriff or another person appointed by court to execute the documents with the same effect as if done by the seller.

Front 102

Client believes his Partner is about to violate their partnership agreement, though the Partner disagrees with that interpretation of the agreement. Is there any legal action client can take in advance of the contemplated breach of the agreement that might confirm client’s interpretation of the agreement is right?

Back 102

File a declaratory judgment action seeking a declaration of the rights, status, and legal relations of the persons governed by the Partnership agreement. Specifically, seek to declare that the actions the client’s Partner are about to take violate the agreement. The fact that client could get monetary damage after a breach doesn’t preclude him from seeking declaratory relief now. Any such declaration by the court would have the effect of a final judgment.

Front 103

Third Partner agrees with your client’s interpretation of the partnership agreement, but refuses to join in any legal action about it. What, if anything, must be done about this?

Back 103

Third Partner might be deemed a party necessary for a just adjudication and if not joined could justify a peremptory exception for nonjoinder. However, it seems unlikely he would be truly necessary for an action only seeking declaratory relief, since complete relief is available just by announcing proper interpretation of agreement. His absence as a party won’t impede client’s ability to get judgment, nor will his absence as party make inconsistent or conflicting obligations possible. If he was joined as necessary party, could be joined as plaintiff because he agrees with client, or if he refuses forced to join as defendant and defend his interests.

Front 104

Without answering appeal, appellee requests by brief that it should receive interest at the judicial rate from the date of judicial demand. Trial court made no such award. How should appellate court rule?

Back 104

Since trial court did not award it, appellee is seeking a modification of the judgment, which can be done only if appellee answers the appeal. Accordingly, appellate court should deny request.

Front 105

Order granting ∏ suspensive appeal obtained 5 days after judgment, ∆’s motion for new trial filed 6 days after judgment, ∏’s appeal bond filed seventh day after judgment. Can motion for new trial be decided?

Back 105

A trial court may act on a motion for new trial timely filed under art. 1974 before the suspensive appeal was perfected. A suspensive appeal does not divest the trial court of jurisdiction to hear the opponent’s timely filed motion for new trial.

Front 106

Order granting suspensive appeal obtained on 15th day after judgment signed and appeal bond is filed on 40th day after signing. No motion for new trial filed by opposing party. Opponent asks Appellate Court to dismiss appeal. Result?

Back 106

Suspensive appeal effective when both petition for appeal and suspensive appeal bond are properly and timely filed. Suspensive appeal must be perfected within 30 days of expiration of delay for new trial/jnov motion, when no new trial has been requested. Here, suspensive appeal bond filed 40 days after judgment signed, which is too late. Opponent can move for dismissal of suspensive appeal under art. 2161, since error is imputable to appellant. Motion to dismiss must be filed within 3 days of return date or date the record is lodged, whichever is later.

Front 107

Must appellee answer appeal to get damages and attorney’s fees?

Back 107

If appellee wants damages and attorney’s fees for frivolous appeal, he must answer appeal. Otherwise barred.

Front 108

You represent ∏ in lawsuit against multiple ∆s. A res judicata exception is granted for one ∆, dismissing him with prejudice from lawsuit. On 1/25/05, you get by mail a notice a judgment mailed on 1/20/05, enclosing a copy of the judgment of dismissal signed on 1/18/05. Not designated as final judgment. Can this be appealed now, and what are the deadlines for filing appeal?

Back 108

This is a partial final judgment since it dismisses one ∆ without dismissing others, and it can be rendered and signed without express designation as final appealable judgment. Delay is 30 days for suspensive appeal, 60 days for devolutive, or delay for new trial, which is 7 days from mailing of notice of final judgment, exclusive of legal holidays.

Front 109

You win a $1M trial verdict. ∆ files suspensive appeal, offering a bond issued by his brother in law, not a licensed Louisiana surety, which attests that the brother-in-law is worth more than the amount of the judgment over and above his other obligations. Your client believes the brother-in-law does not have such financial means. What actions can you take to ascertain whether brother in law really has the financial resources to be surety of the bond?

Back 109

Test sufficiency of bond by ruling the brother-in-law into trial court to show cause why the bond should not be decreed insufficient or invalid and why the motion for suspensive appeal should not be denied. Since the bond is challenged on the ground of brother-in-law’s solvency, and he is not a licensed surety, ∆ has the burden of proving his solvency.

Front 110

Assuming court requires a new or supplemental bond. What time limits, if any, are there for furnishing the new bond? What effect does new bond have on validity of the underlying suspensive appeal?

Back 110

Within 4 days, exclusive of holidays, of the judgment holding the original bond insufficient, ∆ may furnish a new or supplemental bond with a new or additional surety. The underlying suspensive appeal will not be affected and cannot be dismissed if ∆ furnishes the new or supplemental bond in a timely fashion.

Front 111

Company seeks to seize property of defaulting Debtor secured to it by mortgage that imports a confession of judgment, executed in authentic act form. What type of proceeding would accomplish the quickest seizure and sale of property possible and where could this proceeding be filed?

Back 111

A petition for executory process allows for rapid foreclosure and sale of property, without delays of an ordinary proceeding. It can be filed either in parish where immovable is located or where debtor is domiciled. Company has right to use executory process to seize and sell property because the mortgage contains a confession of judgment submitting to executory process and it was executed in authentic act form. Property has been seized but not yet sold.

Front 112

Debtor wants to arrest seizure and sale on grounds he actually made the required payments. He does not have enough money to post security for any proceeding intended to arrest sale of property. What can he do to stop it without posting security?

Back 112

Debtor may file petition for injunction to arrest seizure on grounds that debt has extinguished. He doesn’t have to post security for preliminary injunction sought on this basis. Must be filed in court where executory process is proceeding, either in that proceeding or as a separate suit.

Front 113

Can Company proceed personally against Debtor if the sale of property does not satisfy obligation?

Back 113

Company can only pursue a deficiency judgment against debtor for unsatisfied portion of debt if it got appraisal of property before selling it. Deficiency judgment is ordinary proceeding with all the normal delays. Can be obtained by converting executory proceeding or filing separate suit.

Front 114

Complicated dispute leaves your client wanting to file three actions against his neighbor: (1) following default on a note, an executory process action to seize a 20 acre tract of land subject to a mortgage, (2) action to get neighbor to remove fence encroaching five feet on your clients land, and (3) a tort action for assault and battery. Succinctly, what are the pleadings required to bring the executory process action?

Back 114

Assuming mortgage was executed by authentic act and contains a confession of judgment, client would file a petition for executory process praying for seizure and sale of land tract and include all authentic evidence, such as the promissory note evidencing the obligation secured by the mortgage and the mortgage itself.

Front 115

Can all three actions be brought in the same lawsuit?

Back 115

No, since the tort and possessory actions are ordinary proceedings, they cannot be cumulated with action for executory process (mortgage) using executory procedure.

Front 116

Client signed promissory note to Neighbor for purchase of land. Payments were made for 5 months, then Client was injured while riding as passenger in Neighbor’s car. In return for Client foregoing any damage claim, Neighbor agrees to waive next 15 months of payments. After 14 months, Neighbor launches executory process suit to seize and sell land. Can Client reconvene with a demand for his tort damages stemming from the car accident?

Back 116

No. Client’s reconventional demand for damages would use ordinary process, and an incidental demand must use the same mode of procedure as the main demand, which in this case uses executory process. This would bar it even if was a compulsory reconventional demand, which it isn’t in this case because it does not arise out of the same transaction or occurrence as the main demand.

Front 117

Surety company furnished construction bond for what became a troubled project to build a swimming pool. Original contractor had to be replaced after abandoning project but it claims it wasn’t fully paid for work it did do. Equipment supplier for Original contractor claims it wasn’t paid. And owner of swimming pool claims cost for hiring replacement contractor. All three want proceeds from bond. Surety company doesn’t think any of them are owed. What should surety company do to sort out who has the rights to bond?

Back 117

File a concursus proceeding. Surety company can implead Pool Owner, Equipment Supplier, and original contractor even though surety company denies liability to any of them. Concursus petition must allege nature of the conflicting claims and request that each ∆ assert their respective claims contradictorily to all other parties to the proceeding. To the extent Surety company admits that some funds from bond are owed to at least one of the ∆s, it can deposit that money into the registry of the court and be relieved of any liability to all the ∆s for the money so deposited. Proper venue is the parish where the immovable property on which the pool is located. All claims are for money due on surety contract pertaining to work done on that property.

Front 118

Your client’s brother is the tutor of their late sister’s children. Client believes brother is mismanaging the property under his administration and using its proceeds for his own benefit. Does your client have standing to take any action, and if so, what action?

Back 118

Any interested party may file a motion to remove a tutor who has, inter alia, mismanaged the minor’s property. Tutor is a fiduciary required to administer property with care, prudence and diligence of a reasonably prudent person. As relative of minors, your client certainly has interest to bring motion. The motion will be served on the tutor who will be required to show cause why he should not be removed as tutor. If he is removed, his prior acts will still be valid, however.

Front 119

What must applicant show to get temporary restraining order?

Back 119

Applicant must show by verified petition or supporting affidavit that immediate and irreparable injury or damage will result to applicant before adverse party or attorney can be heard in opposition. Applicant’s attorney must also certify in writing to the court the efforts he made to give notice to the opposition or the reasons notice should not be required.

Front 120

Plaintiff has filed a lawsuit against Manufacturer (M), contending that P was injured due to a defect in M’s product. M has filed a 3rd party demand against your client, California Importer (CI), contending that M’s product is not defective but alternatively arguing that any defect that may be found in the product is the result of a defective component part of the product that M bought from CI. You represent CI. CI imported the component part at issue from a foreign manufacturer. Under LPLA, the non-manufacturer seller of a product imported from a foreign manufacturer. Your client’s GM advises you that CI is not the alter ego of the foreign manufacturer and has no affiliation, control or ownership interest in the foreign manufacturer from which it imported the component part at issue. You also have taken the article 1442 deposition of M, and its corporate representative has no knowledge of any affiliation, control or ownership interests by CI in foreign manufacturer. Discovery has not been completed, but the case is scheduled for trial in 6 months. What if anything, can you file on behalf of California Importer to attempt to terminate the litigation prior to trial? Explain fully, including an explanation of what such a motion, if any, will have to show to be granted.

Back 120

CI may file a motion for summary judgment which shows that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. While CI will have burden of proof on the motion, since M, as 3rd party P, has the burden of proving at trial that CI is liable under the LPLA, CI’s burden on the motion does not require it to negate all essential elements of M’s claim. Rather, CI can just point out there is no factual support for an essential element of M’s claim—that CI is the alter ego of the foreign manufacturer from which CI purchased the allegedly defective component part. Without factual proof of such, M cannot meet its burden of proof at trial on this element and thus CI should be entitled to summary judgment dismissing it from the case.

Front 121

Timber company keeps cutting trees from your land without your permission and is preparing in very short order to ship cut wood off the property. Is there any way to prevent them?

Back 121

File for temporary restraining order or a preliminary injunction. For either, couple would have to show that they would suffer irreparable injury, loss or damage unless defendants are enjoined. Maybe argue aesthetic value of trees, decades it would take to replace them.

Front 122

Father and his 16 year old son want to know what steps must be taken to have son judicially emancipated. Mother was killed four years earlier. Where is the proper court and what is the proper procedure?

Back 122

Petition for emancipation must be filed in the district court in the minor’s domicile parish and must state the reasons why he wants to emancipated as well as the value of any property owned by the minor. Must be accompanied by a written consent to the emancipation by the surviving father, specifically declaring minor is fully capable of managing his own affairs. Father will not be required to qualify as natural tutor to give consent, and appointment of a special tutor is unnecessary under these circumstances. If judge is satisfied there is good reason for emancipation and the minor is capable of managing his own affairs, he will render judgment of emancipation, which will fully emancipate the minor and give him full legal capacity as if he had reached age of majority.

Front 123

Timber company begins cutting down trees on your client’s land. What action can the client file to show he has the right to the land, not the timer company?

Back 123

File a possessory action because they are in possession of the property and that possession is being disturbed. To maintain the action, couple must allege and prove that (1) they had possession at time of disturbance (cutting of timber), (2) they and their ancestors in title had quiet possession for more than a year prior to disturbance, (3) the disturbance did occur, and (4) the possessory action was instituted within a year of the disturbance.

Front 124

Plaintiff who resides in Orleans Parish, sustained personal injury on July 6, 2009 in Jefferson Parish for which she was hospitalized for one week in Jefferson Parish. She files suit in Orleans Parish against Corporation (a domestic corporation with its registered office located in Jefferson Parish), LLC (a domestic LLC with tis registered office located in St. Bernard Parish) and Partnership (a domestic partnership which has its principal business establishment De Soto Parish). You represent Partnership, which was served with Plaintiff’s petition on July 6, 2010. Your client would prefer not to litigate in Orleans Parish. What pleading, if any, can you file in an attempt to obtain the result sought by your client? Your answer must include a discussion of the basis for your filing and your likelihood of prevailing.

Back 124

Partnership should file a declinatory exception of improper venue. Venue would be proper in Jefferson Parish, where Corp. has its registered office and where the tort occurred and damage was sustained; St. Bernard Parish, the location of LLC’s registered office; or DeSoto Parish, the parish of Partnership’s principal business establishment. However, there is no basis under these facts for venue in Orleans Parish and so the exception will likely be granted.

Front 125

How can a succession representative assert ownership of a tract he was not in possession of?

Back 125

Succession representative can bring a petitory action since succession claims ownership but is not in possession of land. The action would seek a judgment recognizing succession as owner. Alternatively, succession representative can answer possessory action and assert title for the succession, thereby converting the suit into a petitory action and judicially confessing possession.

Front 126

If there is such a motion, explain specifically what CI must file to support its motion.

Back 126

CI will have to support its motion with affidavits from the affiants who are competent, attesting to facts of which they have personal knowledge and which are admissible at trial. Here, CI can file an affidavit from GM attesting to the fact that the company is not the alter ego of, and has no affiliation, control or ownership interest in, foreign manufacturer. As GM, he should be competent to attest to such facts based on personal knowledge and which would appear to be admissible at trial. In addition, CI could further supports its motion with an affidavit from counsel annexing the 1442 deposition transcript of M which also demonstrates that M has no factual support to meet its burden on the affiliation element at trial. Such an affidavit and exhibit should easily meet the above mentioned criteria.

Front 127

What is the proper venue for a petitory action?

Back 127

Proper venue for petitory action is the situs.

Front 128

Deranged daughter, father predeceased. How do you go about interdicting?

Back 128

File petition for interdiction and to appoint mother/sister/relative-named-in-question as curator. Petition should include: name, domicile, age, address of both the petitioner and the impaired person, state relationship between them. Should also include where petitioner proposes defendant should reside after interdiction. Should include reasons why interdiction is necessary and a description of defendant’s infirmities. If full interdiction is sought, must explain why limited interdiction is inappropriate. Identify any relatives of ∆, propose a curator and reasons why curator should be chosen. Petition should be personally served on proposed interdict; court will appoint attorney if interdict doesn’t appear, and may appoint examiner to investigate interdict’s infirmities. Examiner’s report must be filed at least 7 days before hearing, which will be by summary proceeding and by preference. Petitioner must establish necessary facts to interdict by clear and convincing evidence.

Front 129

What is the type of action and pleadings needed to deal with your Neighbor’s encroaching fence on your client’s property, and what are the elements that must be proved for it?

Back 129

Since client has possession of land tract at the time of disturbance by Neighbor (the fence), client should file a petition for a possessory action asserting that he had such possession quietly and without interruption for more than a year immediately prior to construction of fence and that his possession was in fact disturbed by the action. Possessory action must be filed within one year of the disturbance.

Front 130

Thomas Smith filed his petition for divorce from Mary Smith. A deputy sheriff served a copy of the citation and the petition on Edward Jones, Mary Smith’s brother, at Edward Jones’ office. Mrs. Smith works in the same office as her brother and is living with him after leaving her husband. Was the service of process proper? Please explain.

Back 130

Proper domiciliary service requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served. Presumably, Mrs. Smith, who works in her brother’s office, does not live there. Therefore, service was improper.

Front 131

Lessee fails to cease possession after lessor provides notice giving 10 days to vacate. What can lessor do?

Back 131

Lessor can serve notice to vacate after lessee right of occupancy has ceased. Must be written and give at least 5 days to vacate, unless tenant has waived notice to vacate by written waiver in lease. If tenant has fails to comply with notice or has waived, lessor can have him summarily cited in court to show cause why it should not deliver back possession. Rule to show cause must state grounds of eviction. Court gives tenant notice of at least 3 days before hearing. After hearing, court can render judgment of eviction ordering tenant to deliver possession. If tenant does not comply within 24 hours, court can issue warrant to Sheriff to deliver possession to lessor. Suspensive appeal must be perfected within 24 hours after rendition of eviction judgment.

Front 132

What duties does an attorney have as an officer of the court?

Back 132

As an officer of the court, attorney must conduct himself at all times with decorum and in a manner consistent with the dignity and authority of the court. He must treat court, its officers, jurors, witnesses and opposing counsel with due respect. He must not interrupt or impede the orderly administration of justice; and he must not knowingly encourage or produce false evidence or make false representations or otherwise deceive the court.

Front 133

In eviction proceeding, is it insufficient service of process to tack the notice to vacate on door and later the citation for the rule to show cause to the door of an absent lessee?

Back 133

No. If whereabouts of lessee are unknown all notices required to be delivered or served on lessee may be attached to door of premises and will have same effect as delivery, so long as a reasonable diligent effort to locate tenant is made before attaching to door.

Front 134

Which of the following is NOT a mandatory ground for recusal of a judge from a particular service?

Back 134

At the time of the hearing of any contested issue in the cause, the judge has continued to employ, to represent him personally, the attorney actually handling the cause.

Front 135

In order for lessee to perfect a suspensive appeal of an eviction judgment, what must the lessee do?

Back 135

Answer rule under oath, plead an affirmative defense entitling him to retain possession, and file an appeal bond within 24 hours after rendition of eviction judgment in an amount sufficient to protect landlord against any damage it may sustain as a result of the appeal.

Front 136

You represent a ∏ who is very poor and lacks money to pay court costs. Other than paying costs yourself, what can you do to allow plaintiff to proceed with suit?

Back 136

File a request for in forma pauperis status in an ex parte motion or in the main petition. The request must be accompanied by affidavits of the ∏ and a third person, other than the attorney, attesting to ∏’s inability to prepay costs. The opposing party or the clerk of court may traverse and challenge ∏’s right to proceed in forma pauperis, but only one rule to traverse, whether by adverse party or the clerk, will be allowed. If granted, ∏ is relieved of obligation to prepay costs, until conclusion of the case. An account of costs will be kept by public officers to whom costs are owed, and if ∏ prevails in case, he will be relieved of paying costs. If ∏ loses, affidavit by the public officers owed costs will be filed in the mortgage records and have the effect of a judgment against ∏ for amount due.

Front 137

Intestate succession of less than $50,000, part of which shares of stock requiring a “legal paper” to transfer to heirs, which are his children, siblings, and surviving spouse. How do you obtain a “legal paper”?

Back 137

Since succession is small one worth less than $50,000, with no immovable property, intestate with only children, sibling and surviving spouse as heirs, it is not necessary to judicially open succession. Competent major heirs and surviving spouse may submit to inheritance tax collector one or more originals of their affidavit setting forth: (1) date of death and domicile at death, (2) fact that decedent died interstate with no immovable property, (3) relationship to decedent, (4) description of movable property left by decedent, value of each item, and aggregate value of all at time of death. If no inheritance tax is due, tax collector will certify by endorsement on multiple originals of the affidavits returned to heirs and surviving spouse.

Front 138

WITH PREVIOUS Assume that your client was served on July 9, 2010. You thereafter determine that your client is the first defendant to be served. Would you recommend any different or additional filing on behalf of your client? If so, please explain what you would recommend and why you would recommend it.

Back 138

I would file a peremptory exception of prescription. Because it has been over a year since the injury, the cause of action has prescribed, unless the claim was timely filed in a court of competent jurisdiction and venue. Here, as discussed above, the parish in which the P filed (Orleans) was not the parish of proper venue. The injury was sustained on July 6, 2009, and my client was served on July 9, 2010. Even if P filed before July 6, 2010, prescription is treated as never having been interrupted, and the case should be dismissed on the exception of prescription.

Front 139

Client wants to oppose probate of testament on grounds of its invalidity. Procedure?

Back 139

Prepare opposition to the petition for probate. It must be in writing, state name and domicile of opponent, interest of opponent in filing the opposition, the grounds for opposition (invalidity of testament) and grounds for invalidity. Party that petitioned for probate may file responsive pleading by summary proceeding. At a contradictory trial to probate testament, proponent of probate bears burden of proving authenticity of testament and its compliance with all formal requirements of law.

Front 140

Which of the following is NOT an appropriate venue for an action seeking to modify a child support obligation?

Back 140

The parish where the person paying the support is domiciled.

Front 141

You are seeking to probate the will of your client’s father against opposition. Your client tells you he as videotape of the late father executing the will in question. The video depicts the last half of the meeting between father and attorney on the will, shows him mentally sound, but does not depict him taking the testator’s oath. Is the videotape admissible evidence to probate the testament.

Back 141

No. Videotape of the execution of a testament is admissible as evidence of mental capacity only if the testator’s sworn oath is on the tape.

Front 142

You have been appointed by the court to represent a defendant in an interdiction action. What responsibilities, if any, do you have in conjunction with this appointment?

Back 142

The interdict’s court-appointed attorney must represent the D until discharged by the court. The attorney must personally visit and discuss the case with the D, including a discussion of the facts, law, rights and options of the D. Failure to do so may result in sanctions but will not invalidate the proceedings.

Front 143

Heir due a large inheritance is in dire straits. Is there in any way to receive a portion of his inheritance in advance of the completion of the succession?

Back 143

One option is to seek an interim allowance for maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for maintenance, provided court concludes such an allowance is necessary and the advances are within the amount eventually due to heir. Heir may compel such payment by contradictory motion against succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory hearing to compel such payment must be published once and state that any opposition may be filed within 10 days from date of publication.

Front 144

Which of the following is NOT a prerequisite for a class action?

Back 144

Allowing the class action would provide the most judicially economical resolution of the claims.

Front 145

Succinctly describe the requirements for a detailed descriptive list of succession property.

Back 145

A detailed descriptive list must be (1) sworn to and subscribed by the person filing it, (2) show the location of all items of succession property, and (3) set forth the fair market value of each item as of the date of the death of the deceased.

Front 146

Thomas Smith filed his petition for divorce from Mary Smith. A deputy sheriff served a copy of the citation and the petition on Edward Jones, Mary Smith’s brother, at Edward Jones’ office. Mrs. Smith works in the same office as her brother and is living with him after leaving her husband. Was the service of process proper? Please explain.

Back 146

Proper domiciliary service requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served. Presumably, Mrs. Smith, who works in her brother’s office, does not live there. Therefore, service was improper.

Front 147

No-fault divorce procedure for wife who just left husband.

Back 147

File article 102 verified petition for divorce, specify grounds of living separate and apart for 180 days (365 if minor children and no allegations of abuse). Petition served on husband. After 180 (or 365) days, file rule to show cause, verified by affidavit that service was made and there has been 180 (or 365) days separate and apart. Rule served on husband. At rule to show cause hearing, present (1) divorce petition, (2) Sheriff’s return of service of petition, (3) rule to show cause, (4) Sheriff’s return of service of rule, (5) affidavit of having lived 180 (or 365) days apart and still apart.

Front 148

You are representing defendant insurance company in an action brought against it by its insured. After 3 days of a bench trial, the P insured has rested her case. You believe that the P insured has failed to offer evidence needed to establish her cause of action. What, if anything, can you now do to try to secure an immediate ruling in favor of your client?

Back 148

Since this is a bench trial, at the close of the P’s case, I can make a motion for an involuntary dismissal on the ground that upon the facts and law, plaintiff has shown no right to relief.

Front 149

Client’s brother has died, leaving authentic act giving her custody of children. How to make effective?

Back 149

Petition for appointment of tutorship by will. Petition should have copy of authentic act annexed to it, evidencing appointment and oath. Tutor will have to furnish security in amount equal to the total value of minor’s property as set forth in an inventory or sworn descriptive list.

Front 150

Which of the following NOT a basis for which a juror must be excused pursuant to a challenge for cause?

Back 150

When the juror served on a previous jury which tried a case containing issues similar to the case you are presenting.

Front 151

Client seeks your assistance regarding a long term supply contract that it has entered with International Corp. (IC) The contract in question has a complicated pricing provision that requires the monthly price to be calculated based on the weighted average price as listed in 3 different recognized industry publications. Although IC has been correctly calculating the price thus far, it has advised Client that it now believes its calculations were in error and that a slightly different weighted calculation should be used. Client disagrees with IC’s suggested changes and asks your if there is any legal action it can bring in advance of a breach of the Contract that might confirm the validity of the price calculation method that has been used by both parties to date. What is the appropriate legal action, if any, that you would recommend and what kind of relief can the Court provide in conjunction therewith?

Back 151

I would recommend filing a petition for declaratory judgment. A declaratory judgment will determine the rights between the parties to this K and whether IC is authorized to change the pricing structure under the terms of the K. The K can be construed in a declaratory judgment action either before or after there has been a breach. The court can order any kind of relief it deems appropriate regardless of the existence of any other available remedy. The declaratory judgment will have the force and effect of a final judgment.

Front 152

Which of the following is NOT a reason that a court would be required to deny consolidation of two separate actions for trial?

Back 152

It would lengthen the time required for trial.

Front 153

You are contacted by a client from Nebraska asking for you help to enforce a judgment that client obtained from a Nebraska court against a LA resident who is domiciled in Lincoln Parish. Can a judgment from a Nebraska court against a LA resident be enforced in LA and, if so, please explain (1) what action, if any, is needed ant he requirements for that action, (2) where the action must be filed, and (3) what documents, if any, must be included with the action?

Back 153

Yes, the Nebraska judgment can be enforce in LA against the LA resident. There are two procedural options for having the Nebraska court judgment recognized by a LA court. The first option is to bring an ordinary proceeding against the LA judgment debtor to have the Nebraska judgment recognized and made the judgment of a LA court. The other, more expedient, option is utilize the procedure under the Enforcement of Foreign Judgment Act. This requires (1) annexing an authenticated copy of the Nebraska judgment to an ex parte petition and filing an affidavit with the last debtor; and (3) the Nebraska judgment may then be executed 30 days after mailing of the notice. Under either option, the venue for the proceeding would be Lincoln Parish, parish of the judgment debtor’s domicile.

Front 154

Following an adverse jury verdict, a juror approaches you to advise you of behavior occurring during the trial that she believed to be improper conduct by someone affiliated with the opposing party. You would like to file a motion for new trial based upon this reported behavior. What is the time delay for filing such a new trial motion and what if anything must you file?

Back 154

Must file within 7 days, excluding holidays, from mailing or service of the notice of signing of judgment. The motion must state the grounds for the new trial request which include the peremptory grounds of: (1) the verdict is clearly contrary to the law and evidence; (2) discovery of new evidence; or (3) when a juror has been bribed or compromised. Under these facts, which do not disclose the nature of the impropriety, the only ground that could apply is that the improper conduct by the opposing side compromised the verdict. A new trial motion on this ground would have to include a verified affidavit of the facts upon which the motion is based. Alternatively, you may urge the motion on discretionary grounds for which allows the grant of a new trial in any case if there is good ground therefor.

Front 155

Your represent Employer who has been sued by Victim after Employee was involved in a wreck with Victim while driving a vehicle owned by Employer. Through discovery, you have learned that the accident happened at 9 pm. Employee’s work hours were 8am-5pm. You also learned that Employee’s girlfriend was with him at the time of the accident, and they were returning from a movie date. Thus, you believe there is no basis for Victim’s allegations that Employee was in the course and scope of employment at the time of the accident. Trial is scheduled to occur in 4 months. What, if anything, can you file now to try to extract Employer from this litigation prior to trial and what legal standard, if any, must you establish to obtain the relief sought?

Back 155

Employer can file a motion for summary judgment based on its claim that there is no genuine issue of material fact regarding Employer’s vicarious liability for the action of Employee. Since Victim bears the burden of proof at trial on this claim, Employer’s burden as movant on the motion does not require him to negate all essential elements of Victim’s claim, but rather point out that there is an absence of factual support for one or more of essential elements of Victim’s claim. Here, Victim will be unable to establish factually that Employee was in the course and scope of his employment at the time of the accident, an essential element to the claim of vicarious liability. Employer would thus point out in the motion the absence of evidence in the record showing that Employee was in the course and scope of employment during the relevant time.

Front 156

What is the legal delay for answering a petition that is served pursuant to the LA Code of Civil Procedure?

Back 156

15 days from the date of service of the petition

Front 157

Your law firm represents Plaintiff in an expropriation action that is scheduled for trial in 6 months. The partner handling the case asks you to prepare the appropriate documents that will elicit as much information as possible about the opposing party’s expert witnesses and the opinions they hold. Please describe 3 options that are available to secure the information sought by the partner?

Back 157

The first option would be to serve interrogatories seeking the identity of any experts D expects to calla s a witness at trial and any non-testifying experts. Secondly, P may also serve a request for PDR and tangible things to discover the facts known or opinions held by D’s testifying experts identified in the interrogatories. Thirdly, P may then depose those experts and inquire into their facts and opinions. However, the facts and opinions of D’s non-testifying experts are only discoverable upon a showing of exceptional circumstances by P.

Front 158

What is the legal delay for answering a petition that is served pursuant to the LA Long-Arm Statute?

Back 158

30 days from the date of service of the petition

Front 159

Client meets with you to complain that a new Business operating near his home has begun conducting noisy operations around the clock that disturb him and other neighbors on a daily basis, frequently interrupting their sleep. He states (and you confirm) that the applicable parish noise ordinance prohibits businesses in that location from emitting continuous sounds exceeding 60 decibels between 10 pm and 7 am. He and several of his neighbors would like to retain you to take steps to quite the offending business as quickly as possible. What action, if any, can you bring to try to stop the noise immediately? Your answer must state what you must assert in your pleadings and what you must establish to obtain the relief sought.

Back 159

File a petition for a temporary restraining order (TRO), which must assert that client will suffer irreparable harm if injunctive relief is not granted. Irreparable harm is harm which is incapable of being compensated for by money damages. Client’s petition must be verified and contain an attorney certification regarding efforts made to provide notice to Business.

Front 160

Which of the following is NOT a ground for attachment under LA Code Civil Procedure article 3541:

Back 160

The defendant has threatened to file a bankruptcy action.

Front 161

You are contacted by the heir of a wealthy resident of you city who died several months ago. The heir explains that he is in dire financial circumstances and is due to receive an inheritance of over $220,000 from the wealthy resident’s succession. Due to his dire financial circumstances, the heir asks you if there is any method by which he could receive a portion of his inheritance in advance of the completion of the succession. What, if anything, can be done to fulfill the heir’s request? Please explain any requirements and procedures related thereto.

Back 161

One option would be to seek an interim allowance for maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for his maintenance, provided that the court concludes that such an allowance is necessary and the advances are within the amount eventually due them. Heir may compel such payment by contradictory motion against the succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory motion to compel such payment must be published once and state that any opposition must be filed within 10 days from the date of publication.

Front 162

Client meets with you to complain that a new Business operating near his home has begun conducting noisy operations around the clock that disturb him and other neighbors on a daily basis, frequently interrupting their sleep. He states (and you confirm) that the applicable parish noise ordinance prohibits businesses in that location from emitting continuous sounds exceeding 60 decibels between 10 pm and 7 am. He and several of his neighbors would like to retain you to take steps to quite the offending business as quickly as possible. Now assume you are the judge, you have received the pleading filed in answer to Q A(1), and you believe that the relief requested by Client is warranted. What, if anything, must you require from Client in order to protect Business and why is it required?

Back 162

Judge may require Client to furnish security in an amount sufficient in Judge’s opinion to indemnify Business for any losses or damages incurred as a result of the wrongful issuance of the TRO.

Front 163

You represent the tutor of 2 minor children. The tutor advises that the two minor children are co-owners of 100 acres of immovable timber property in Claiborne Parish, LA. The 2 minor children have a combined ownership interest of 40% in the immovable property (20% each), while the remaining 60% of the property is owned by others. The property owners have secured an offer from a 3rd party to purchase the entire 100 acre tract. Although the minor children are not in need of money, the tutor believes that the amount offered for the 100 acre tract is fair and above the market value of the property. What steps, if any, must the tutor take in order to allow the minor children to sell their interest in the property?

Back 163

The tutor must file a petition setting forth: 1) a description of the property, the price and conditions of the proposed sale and the reasons which make it advantageous to the minor to sell at a private sale; 2) the tutor’s recommendation that the sale be approved because of the above market value proposed sale price; and 3) the written concurrence of the undertutor. The court may require evidence prior to approval. If the undertutor does not concur, the tutor would have to rule the Undercurator into court to show why the recommendation should not be approved. Since this matter involves the sale of minors’ immovable, the court may require the tutor to furnish additional security in an amount fixed by the court.

Front 164

You represent a 76 year old widower who is a defendant in a partition action adverse to the children of his deceased sister. The judge recently granted a continuance of the trial over your client’s objection, and has scheduled a status conference to address a new trial date. The judge has suggested that the next trial date on her regular calendar may be approximately 15 months away. Your client wants the trial as soon as possible. What, if anything, can you do to try to obtain an earlier trial date for your client? Please explain the basis for your action.

Back 164

I can request the court to assign an earlier trial date based on the preference afforded to a party 70 years or older. However, the motion must be accompanied by medical documentation stating that the party will not survive beyond 6 months. If such a condition exists in this case, the court may grant the preference in the interests of justice

Front 165

You represent the owner of a commercial building who contacts you regarding a problem tenant. The tenant is a large law firm that recently has split up, and the building owner is concerned that the various departing factions of the former firm will leave the building without paying the rent owed by the firm for the remainder of the year. Several attorneys from the tenant firm already have departed and moved to a different location, taking various equipment and furnishings with them. What steps, if any, can the building owner take to secure repayment of the rental obligation? If something can be done, explain what specific pleadings you must file on behalf of the Client, what relief is available, and what security, if any, is required.

Back 165

To secure the payment of rent arising from the lease, building owner, as lessor, has privilege on the lessee’s movables that are found in or upon the leased property. Since owner has a lessor’s privilege over the remaining furnishings and equipment of tenant, and its within the power of tenant to conceal, dispose of or remove the property from the parish, during the pendency of an action to recover unpaid rent, owner may seek a writ of sequestration. Since some of tenant’s property subject to the privilege has already been removed by tenant, owner may obtain the writ of sequestration even before the reimaging rent is due because building owner has good reason to believe that lessee will remove the property. No security is required to enforce a lessor’s privilege.

Front 166

WITH PREVIOUS Now assume you represent the Business which has been served with the pleading filed in answer to Question A(1) and a corresponding order issued by the Judge and you see that a hearing has been set for one week from today. Business indicates that you see that a hearing has been set for one week from today. Business indicates that it has fence line noise monitors that can demonstrate continuous noise levels are well below 60 decibels between 10 pm and 7 am and it does not want to wait a week to have this issue resolved. What, if anything, can you file to try to obtain resolution without waiting an entire week. Please explain any time requirements associated therewith.

Back 166

Business may file a motion to dissolve the TRO upon two days’ notice to Client. The court will hear the motion as expeditiously as justice may require.

Front 167

Client visits you after receiving an executory process seizure notice regarding a home that he recently purchased. Although Client is current on all of his home note payments, the executory process seizure was issued by his seller’s lender, who alleges that the seller has not fulfilled his payment obligations. Client understands that the seller’s outstanding loan balance was paid off with the sale proceeds that seller received from client. What, if anything, can Client do to stop the executory process action from going forward? If something can be done, explain what specific pleadings you must file on behalf of Client, what relief is available, and what security, if any, is required?

Back 167

When a mortgagor such as seller has sold property to a 3rd party such as Client and the property is subsequently seized pursuant to executory process, Client can seek an injunction on the ground that the debt has been extinguished. Client would have to file a petition for an injunction in the court where the execuroty proceeding is pending. Since executory process proceeds rapidly, Client would need to request a prelimineary injunction to arrest the seizure and sale of the home, in which case the hearing must be held before the sale. Security is not required when, as here, one of the grounds for the injunction is that the debt secured by the mortgage has been extinguished.

Front 168

WITH PREVIOUS Identify at least 2 facts that you would want to establish to support your effort, and explain how you would offer these two facts as evidence in support of your effort.

Back 168

First, employer would refer to the fact that Employee’s work day ended at 5 pm, four hours prior to the accident. 2nd, Employer would refer to the fact that Employee was plainly not acting in furtherance of his employment while on a movie date at the time of the accident. Employer would offer these two facts in affidavits which show the affiant is competent, based on personal knowledge, and attest to facts admissible at trial. In this case, an affidavit from Employer, or his appropriate designee, attesting to Employee’s work hours and an affidavit from Employee’s girlfriend regarding their movie date would likely meet the aforementioned requirements.

Front 169

You are conducting voir dire in a jury trial, and believe that a prospective juror will be biased against your client based upon the answers that eh prospective juror has provided to your questions. Describe at least 2 options you can consider to prevent this prospective juror from being seated as a juror?

Back 169

One option would be to exercise a challenge for cause when a juror, such as the prospective juror here, has formed an opinion in the case or is not otherwise impartial. The cause of the bias is immaterial. My other option would be to use a peremptory challenge which can be asserted without showing cause or even providing a reason for the cause.

Front 170

You represent Petrochemical Corp. against which multiple lawsuits have been filed following a short term chemical release caused in part by a lightning strike. 9 separate lawsuits alleging chemical exposure and resulting damages have been filed in the parish where the incident occurred by a total of 16 Plaintiffs, all of whom claim similar injuries and damages. Those 9 separate lawsuits have been filed by different lawyers who represent the 16 various plaintiffs and are pending in Divisions A,C,D,E and F of the parish court. The first filed lawsuit is pending in Division C. The last filed lawsuit is pending in Division A. Petrochemical Corp. believes it would be most cost efficient (and strategically beneficial) to defend these actions at a single trial. What, if anything, can you do on behalf of Petrochemical Corporation to accomplish that goal? Your answer must state what you must file, what you must establish to obtain the relief sought, and in which Division you must file.

Back 170

File a motion to consolidate the actions. Separate actions may be consolidated when there are common issues of law and fact involved in each case. Petrochemical will need to show that each of these actions involve common issues of law and fact which it should be able to do since the suits arise out of the same occurrence. The motion must be filed in Division C where the first filed suit is pending and if consolidation is ordered, the other pending cases will be transferred to that division.

Front 171

During the course of a jury trial, the judge has sustained your opponent’s objections to a specific line of questioning you intended to cover with your expert witness that you believe is crucial to the outcome of the case. What, if anything, can you do to ensure that he excluded area of testimony can be reviewed and considered by an appellate court?

Back 171

No formal exceptions to the judge’s ruling excluding this evidence is necessary. I can voice my objection on the ruling and make known my desire to preserve the matter for appeal. This known as a “proffer” or “offer of proof.” The court will then allow me to pursue the excluded line of questioning with my expert, subject to cross examination, on the record at a recess or other such time designated by the court or by deposition within 30 days of the exclusion or the end of trial, whichever is later. The excluded testimony will be held inadmissible.

Front 172

You represented plaintiff in a two week long personal injury trial in which the jury rendered a verdict in favor of the defendant. You have properly perfected a suspensive appeal on behalf of plaintiff, and posted the required bond.

Back 172

After the trial court record is lodged with the appellate court, D files a motion in the trial court to tax expert witness fees and other costs of trial to plaintiff. Please explain whether the trial court may or may not hear that motion. Yes. After an appeal has been perfected, the trial court retains jurisdiction to perform certain acts, including the taxation of costs and expert witness fees.

Front 173

During the course of gathering and reviewing documents to respond to your opponent’s discovery requests, you discover numerous pre-lawsuit emails between non-lawyer upper level management employees of your client in which they discuss possible strategies and other issues that my arise in the event of litigation. Are these pre-lawsuit emails by non-lawyer employees of your client subject to production? Please explain the basis for your answer.

Back 173

No. The e-mails are qualifiedly privileged an exempt from discovery under LA C. C. Pr. art. 1424 as work product. Writings prepared by a party, in anticipation of litigation, are not discoverable unless denial will cause unfair prejudice, undue hardship or injustice to the party seeking discovery. These e-mails meet the definition of work-product since they were prepared by upper level employees of a party discussing litigation strategies.

Front 174

WITH PREVIOUS Upon preparing the filing required by Question B(1), you learn that a trial date already has been fixed in the one lawsuit pending in Division F. What, if anything, does that discovery require you to do in conjunction with your efforts?

Back 174

Petrochemical must obtain the written consent of each division of the court where the actions are pending.

Front 175

Client has been sued by Brother who has been interdicted and is confined in a psychiatric hospital based upon a commitment for schizophrenia. Brother has brought the suit in his own name. Is there any action that you can take for Client to obtain the dismissal of this suit? Please explain.

Back 175

Yes. File a dilatory exception of lack of procedural capacity since interdicts may not file suit in their own name. Rather, a curator must first be appointed by the court to file suit on behalf of brother.

Front 176

Your represent Employer who has been sued by Victim after Employee was involved in a wreck with Victim while driving a vehicle owned by Employer. Through discovery, you have learned that the accident happened at 9 pm. Employee’s work hours were 8am-5pm. You also learned that Employee’s girlfriend was with him at the time of the accident, and they were returning from a movie date. Thus, you believe there is no basis for Victim’s allegations that Employee was in the course and scope of employment at the time of the accident. Trial is scheduled to occur in 4 months. What, if anything, can you file now to try to extract Employer from this litigation prior to trial and what legal standard, if any, must you establish to obtain the relief sought?

Back 176

Employer can file a motion for summary judgment based on its claim that there is no genuine issue of material fact regarding Employer’s vicarious liability for the action of Employee. Since Victim bears the burden of proof at trial on this claim, Employer’s burden as movant on the motion does not require him to negate all essential elements of Victim’s claim, but rather point out that there is an absence of factual support for one or more of essential elements of Victim’s claim. Here, Victim will be unable to establish factually that Employee was in the course and scope of his employment at the time of the accident, an essential element to the claim of vicarious liability. Employer would thus point out in the motion the absence of evidence in the record showing that Employee was in the course and scope of employment during the relevant time.

Front 177

Client comes to you seeking divorce based upon LA Civ. Code. Art. 102, which allows married couples with no minor children to obtain a divorce after having lived separate and apart for 180 days. (1) Please specifically explain all pleadings you must file on behalf of your client (including all specific components of those pleadings) to obtain the article 102 divorce that she desires.

Back 177

Plaintiff initiates an action for divorce under Art. 102 by filing and serving a petition containing allegations of jurisdiction and venue (where either party is domiciled or last matrimonial domicile). After the appropriate period for living separate and apart has elapsed, P must then file a rule to show cause alleging service of the petition, passage of the requisite time period from service and that the spouses have continued to live separate and apart, verified by affidavit. This rule to show cause is then served on the D or D’s representative, unless service is waived by the D. P then files another affidavit, executed after filing the rule, attesting that the parties have continued to live separate and apart since the filing of the petition and that the P desires to be divorced.

Front 178

WITH PREVIOUS Now assume you represent two of the plaintiffs in one of the 9 lawsuits, that you vigorously oppose Petrochemical Corporation’s efforts as taken in response to Questions B1 and B2, and that the Judge has granted the relief sought by Petrochemical Corporation. What, if anything, can you do to try to have that ruling overturned by a higher court? Your answer should include a description of what you must file in the appropriate court (or courts) and a brief explanation of your reasons for doing so.

Back 178

File an application for a supervisory writ to review Judge’s interlocutory order of consolidation. P’s must give notice to Judge of their intent to seek a supervisory writ and Judge will set a return date not to exceed 30 days from the date of the order of consolidation. In order to prevail, P’s would have to show that the trial judge erred in consolidating the cases and should have refrained from doing so because it will cause jury confusion, prevent a fair and impartial trial, give Petrochemical an undue advantage or prejudice P’s rights

Front 179

You represented plaintiff in a two week long personal injury trial in which the jury rendered a verdict in favor of the defendant. You have properly perfected a suspensive appeal on behalf of plaintiff, and posted the required bond. Assume you now represent the defendant. You read in the Wall Street Journal that the surety used by plaintiff for her suspensive appeal has filed for bankruptcy and you plan to file a motion to test the solvency of that surety. Do you file your motion with the appellate court or with the trial court? Please provide the reason for your decision.

Back 179

The motion to test the sufficiency of the appeal bond must be filed in the trial court which the bond was set. The trial court set the bond in its order of appeal and the appeal was conditioned upon the posting of adequate security. The trial court also retains jurisdiction to test the solvency of the surety on the appeal bond after the purported perfection of the appeal.

Front 180

You are preparing for a trial scheduled to begin on Nov. 1, 2010 in which you represent the Plaintiff. Defendant plans to utilize 2 expert witnesses, who you have deposed, and who you believe are not employing the proper methodology that is customarily used by experts in that field.

Back 180

What, if anything, can you file to challenge the qualifications of the D’s experts and what deadline, if any, exists for such a filing? Plaintiff can file, not later than 60 days before trial, a motion for a pretrial hearing to determine whether the methodologies of defendants’ experts are reliable under the Code of Evidence.

Front 181

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. What pleadings or documents must you prepare in order to accomplish Client’s desires?

Back 181

Prepare an opposition to the petition for probate.

Front 182

You are preparing for a trial scheduled to begin on Nov. 1, 2010 in which you represent the Plaintiff. Defendant plans to utilize 2 expert witnesses, who you have deposed, and who you believe are not employing the proper methodology that is customarily used by experts in that field. Your are the Judge presiding over this matter and have received the Plaintiff’s filing from question (B)1. What deadline, if any, do you have to rule on such filing, and what, if anything, must your ruling include?

Back 182

The ruling must occur at least 30 days before trial and it must recite findings of fact, conclusions of law and reasons for judgment. If taken under advisement, the court must provide these no later than 5 days after hearing. The findings of fact, conclusions of law and reasons for judgment must include: (a) why the evidence is reliable under the Code of Evidence; (b) the evidence presented at the hearing; (c) whether the experts will be allowed to testify; and (d) the reasons for the decision.

Front 183

You represented plaintiff in a two week long personal injury trial in which the jury rendered a verdict in favor of the defendant. You have properly perfected a suspensive appeal on behalf of plaintiff, and posted the required bond. Assume you now represent the plaintiff. The court has heard defendant’s motion to test the solvency of the surety and has determined that your surety is insufficient. Is your suspensive appeal still valid? Please explain what, if anything, you may do to maintain your suspensive appeal, and any time limits associated therewith.

Back 183

Within 4 days, exclusive of holidays, of the judgment holding the original bond insufficient, plaintiff can furnish a new or supplemental bond with a new or additional surety. The underlying suspensive appeal will then be allowed to proceed.

Front 184

You are preparing for a trial scheduled to begin on Nov. 1, 2010 in which you represent the Plaintiff. Defendant plans to utilize 2 expert witnesses, who you have deposed, and who you believe are not employing the proper methodology that is customarily used by experts in that field. You represent the D and after consulting with P’s counsel, you both agree that it would be best to have this issue heard during the week prior to trial. What, if anything, can you do to accomplish this goal and what additional approvals, if any, are required?

Back 184

The parties can consent, with court approval, that the motion can be heard and the ruling made any time before trial.

Front 185

Plaintiff sues Employer seeking damages for sexual harassment and batter she alleges were inflicted by her supervisor. Employer notifies its Insurer of the claim and Insurer denies both coverage and a defense to the Employer. Employer then asserts a cross claim against Insurer seeking both coverage and a defense from the Insurer to the underlying cliam, which Insurer has answered. The case is scheduled for trial on Dec. 13, 2010. You represent Insurer and, after deposing Plaintiff and her supervisor, you are confident that your insurance policy unambiguously excludes coverage for Plaintiff’s allegations and that no defense obligation is owed. What, if anything, can you file on behalf of Insurer to attempt to extract Insurer from the litigation prior to trial? Explain fully, including an explanation of what such filing most establish to obtain the relief sought.

Back 185

Insured can file a motion for summary judgment based on its claim that there is no genuine issue of material fact regarding the policy’s coverage and that insurer is entitled to a judgment dismissing it from the case as a matter of law. While Insurer does bear the burden of proof regarding the policy’s coverage at trial, Insurer’s burden on the motion only requires it to show that there is no factual support for any one element of Employer’s cross-claim. If Employer then fails to produce factual support sufficient to meet his burden of proof at trial on the cross-claim, there is no genuine issue of material fact for the court to decide and the summary judgment motion will be granted.

Front 186

You have just completed your first jury trial in which you represented the D insurer in a lawsuit arising from a motor vehicle accident. The jury rendered a seven figure verdict against your client, and the news of that verdict has made all of the local papers. 4 days after the verdict, your receive a call from Unknown Witness, who tells you that she read the newspaper account and was shocked by the verdict since she had witnessed the accident and saw the plaintiff run a red light and cause the accident in question. You meet with UW later that same day and learn that both she and her 22 year old son witnessed the accident but were not referenced on the accident report and were never contacted by anyone about he matter. What, if anything, can you do with this information at this point and, if anything can be done, what deadlines, if any, exist for taking action?

Back 186

File a motion for a new trial on the ground of discovery of new evidence which could not have been discovered with due diligence prior to the completion of the trial. In this case, there was no lack of due diligence in discovering the availability of the material evidence possessed by UW and her son since their names were not on the accident report. Thus there was no way for defense counsel to even know of their existence. The motion must be filed within 7 days, excluding holidays, from mailing or service of notice of signing of judgment. Thus the motion would still be timely since trial ended only 4 days ago. To obtain a new trial based on newly discovered evidence, I would need to show that the evidence was discovered after trial and that I exercised reasonable diligence in seeking to discover the evidence.

Front 187

WITH PREVIOUS If such a filing is available, explain specifically what Insurer must file in support thereof to establish its right to the relief sought?

Back 187

Insurer’s motion must be supported by affidavits which show that the affiant is competent; that are based on personal knowledge; and attest to facts admissible at trial.

Front 188

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. What must you state or allege in your document(s) to comply with the appropriate pleading requirements?

Back 188

It must be in writing and state the name, surname and domicile of the opponent; the interest of the opponent in filing the opposition; and the grounds for opposing the petition, i.e., invalidity of the testament and the grounds of invalidity.

Front 189

You represent a plaintiff and have had difficulty scheduling the deposition of one of the plaintiff’s treating physician’s attendance at the deposition. Please explain 3 methods by which service of the subpoena may be made on the physician, describing any requirements associated with each method?

Back 189

First, the physician can be served personally by the sheriff of the parish where the action is pending. Secondly, a non-party physician such as this can also be served by making personal service on any clerical employee of the doctor. Thirdly, if the sheriff is unable to make service after 5 days and diligent effort, a private person who is not a party can be appointed by the court to make service.

Front 190

WITH PREVIOUS Identify at least 2 facts that you would want to establish to support your effort, and explain how you would offer these two facts as evidence in support of your effort.

Back 190

First, employer would refer to the fact that Employee’s work day ended at 5 pm, four hours prior to the accident. 2nd, Employer would refer to the fact that Employee was plainly not acting in furtherance of his employment while on a movie date at the time of the accident. Employer would offer these two facts in affidavits which show the affiant is competent, based on personal knowledge, and attest to facts admissible at trial. In this case, an affidavit from Employer, or his appropriate designee, attesting to Employee’s work hours and an affidavit from Employee’s girlfriend regarding their movie date would likely meet the aforementioned requirements.

Front 191

Client comes to see you on July 8, 2010, and shows you a $ judgment rendered in her favor and against Judgment Debtor for $150K. The judgment was rendered on July 10, 2000 and was recorded in your parish mortgage records on July 12, 2000. Client advises you that the judgment has never been collected due to Judgment Debtor’s limited means, but she recently learned that Judgment Debtor inherited “millions of dollars” from a deceased uncle. You are concerned that the judgment may soon prescribe due to the passage of 10 years unless you take steps to revive it. Please explain the steps you must take to revive the judgment. Your answer must identify what, if anything, you must file to revive the judgment and where it must be filed.

Back 191

Plaintiff should file an ex parte motion to revive the judgment in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the 10-year prescriptive period. The motion must include an affidavit of plaintiff stating that the original judgment has not been satisfied. Service and citation of the motion is not necessary.

Front 192

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. How is the will contest resolved and who bears the burden of proof?

Back 192

A responsive pleading may be filed by Sister by summary proceeding. At a contradictory trial to probate the testament, Sister, the proponent, bears the burden of proving the authenticity of the testament and its compliance with all of the formal requirements of law.

Front 193

WITH PREVIOUSYou have satisfied your judgment revival concerns and now wish to ascertain whether Judgment Debtor actually has any assets that might be used to satisfy Client’s judgment. What, if anything, can you do to learn from Judgment Debtor whether he has any assets to satisfy Client’s judgment? If something can be done please briefly explain what you must file and where it must be filed.

Back 193

File a motion for examination of the judgment debtor, which may include a request that Judgment Debtor bring her financial books and records to the examination. The motion must be filed in the court which rendered the judgment.

Front 194

You have learned that Judgment Debtor has substantial funds in a local Bank more than sufficient to pay all money owed to Client. Please briefly explain what you must file so that Client can satisfy her judgment from Judgment Debtor’s Bank funds.

Back 194

Client may garnish the bank funds under a writ of fieri facias. Plaintiff should file a petition for garnishment in the parish where Bank may be sued under Art. 42 only or Art. 77. Plaintiff then serves the citation, petition, garnishment interrogatories and notice of seizure on the bank garnishee. Bank will have 15 days to answer the interrogatories. Once Bank admits it has Judgment Debtor’s funds, the court will order Bank to deliver the funds to the sheriff.

Front 195

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. What pleadings or documents must you prepare in order to accomplish Client’s desires?

Back 195

Prepare an opposition to the petition for probate.

Front 196

Adam’s Plumbing (AP) is a LA corp. having its registered office in Winn Parish. Owner lives in adjacent LaSalle Parish and owns a camp in adjacent Grant Parish. Owner called AP to check a possible gas leak at his Grant Parish camp. AP sent employee Bob, a resident of nearby Caldwell Parish who had 2 months experience as a plumber, to field the call. Bob discovered a gas leak inside Owner’s Grant Parish camp. Bob replaced the leaking valve with a valve manufactured by California Valve Company, a California corporation with no offices in LA. One week later, Owner’s grant Parish camp is destroyed to due to a gas explosion. Fortunately, Owner is away and is not injured. Owner hires a lawyer to sue Bob and AP for the destruction of his camp. What parish or parishes would be a proper venue for Owner’s lawsuit against Bob and AP? Explain fully.

Back 196

Venue would be proper in Winn Parish, the parish where AP, a domestic corporation, has its registered office. Venue would also be proper in Grant Parish because that is the parish where damages were sustained and where the wrongful conduct—in this case, negligent repair—occurred. Grant is also proper venue because that is the parish where services under this plumbing repair contract were to be performed. Caldwell Parish would also be a benue option if that is the parish of Bob’s domicile. The facts are ambiguous in this regard, stating that Bob is a “resident” of Caldwell Parish. Domicile is where one has his habitual residence. If Bob habitually resides in Caldwell and either has no other residence or, if he does, resides in Caldwell more often than any other parish where he may have a residence, Caldwell would likely be deemed his domicile.

Front 197

Television Station sold $10K worth of advertising to Bob’s Guns Extravaganza for a traveling gun show that is scheduled to operate at the local convention center for 3 days. Bob, a citizen and resident of Oregon, has stopped payment on the check sent in payment for the advertising. Television Station wants you to take every step that you can to protect its interests. Bob has 2 truckloads of inventory parked at the convention center having an approximate retail value of $50K. In 3 days, Bob will move his merchandise to Jackson, MS. What action, if any, can you take to protect Television Station’s interests? Please specify what pleading must be filed and explain why the desired relief is available.

Back 197

Television Station may file a petition for writ of attachment to have the inventory seized. Such attachment can be based on the fact that Bob is a non-resident with no duly appointed agent in the state for service of process. In this case, the court may exercise quasi in rem jurisdiction over Bob by attaching his property (inventory in these facts) in LA. However, the judgment can only be executed against the attached property, which in this case is no problem because the inventory’s $50K value can easily satisfy the $10K debt Bob owes Television Station.

Front 198

AP believes California Valve Company’s valve was defective and wants to add the company as a party to the lawsuit. What pleading must AP file to add California Valve Company as a party to the case? Since California Valve Company has no offices in LA and is not registered with the LA Secretary of State, how must AP effect service of process on California Valve Company? Explain in detail how this is done.

Back 198

An amended petition.California Valve Company must be served under LA’s Long-Arm Statute which is done by either mailing the citation and petition by certified or registered mail or actual delivery to the defendant by commercial courier. If service cannot be made by either of these methods, the court will order service to be made on an attorney at law to represent the non-resident defendant.

Front 199

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. What must you state or allege in your document(s) to comply with the appropriate pleading requirements?

Back 199

It must be in writing and state the name, surname and domicile of the opponent; the interest of the opponent in filing the opposition; and the grounds for opposing the petition, i.e., invalidity of the testament and the grounds of invalidity.

Front 200

Because California Valve Company sells no products to any LA distributors, it wishes to contest personal jurisdiction of the LA court. Its closest distributors to LA are in Longview, TX; El Dorado, AR; and Vicksburg, MS. What pleading must California Valve Company file to contest jurisdiction of LA over it in this matter and when must it be filed?

Back 200

A declinatory exception of lack of personal jurisdiction, which must be filed prior to or in the Answer

Front 201

Because California Valve Company sells no products to any LA distributors, it wishes to contest personal jurisdiction of the LA court. Its closest distributors to LA are in Longview, TX; El Dorado, AR; and Vicksburg, MS. You are the judge hearing this issue. What is the basis for possible jurisdiction over California Valve Company and how do you rule?

Back 201

There are several potential bases for the assertion of specific jurisdiction under LA’s Long-arm Statute. First, if AP contracted with California Valve to supply it with these particular valves in LA, that might be a basis for personal jurisdiction if this tort cause of action (products liability) is considered to have arisen from the activity of contracting to supply valves in LA. 2nd, the defective manufacture of the valve is an act committed outside LA causing damage (gas explosion) in the state and would provide specific jurisdiction if California Valve regularly does or solicits business in LA or derives substantial revenue from its goods used in LA. This is a highly unlikely predicate for personal jurisdiction given the fact that the company does not sell to any LA distributors and has no offices in the state. 3rd, a manufacturer of a product such as the valve, which caused damage in LA would be subject to personal jurisdiction if, at the time of the sale to AP, California Valve could have foreseen or expected its product could end up in LA by reason of its nature and marketing practices. Given the geographical proximity of its distributors in three contiguous states, it is reasonable to expect that its products could be used by LA residents even though it had no LA based distributors. Accordingly, this would provide the best basis for specific jurisdiction which would likely succeed.

Front 202

Client has informed you that Sister has petitioned Court to probate the testament of Deceased Mother. Client wants to oppose the probate on the grounds of the invalidity of the testament. How is the will contest resolved and who bears the burden of proof?

Back 202

A responsive pleading may be filed by Sister by summary proceeding. At a contradictory trial to probate the testament, Sister, the proponent, bears the burden of proving the authenticity of the testament and its compliance with all of the formal requirements of law.

Front 203

Owner’s Attorney wants to know if AP has liability insurance that might provide coverage in this lawsuit and if AP has any statements of witnesses relating to this case. How can Owner’s attorney secure this information

Back 203

Owner’s attorney can propound interrogatories seeking answer to those questions. In addition, he can serve requests for production of documents asking AP to produce copies of all policies that might provide coverage. Still further, he can depose a representative of AP under Art. 1442 and make the inquires during the deposition.

Front 204

The jury trial of this matter is scheduled to begin. During vior dire, a prospective juror says “AP did a lousy job at my home last year, but I think I could be fair to them.” What, if anything, can AP do to challenge this potential juror?

Back 204

One option would be to exercise a challenge for cause based on the juror having formed an opinion in the case or not otherwise being impartial. However, the court may reject that challenge since the juror asserts that he could nonetheless be fair. The court may seek to rehabilitate the juror and determine that the can be impartial. The other option would be for AP to exercise one of its peremptory challenges to strike the juror. Each side gets six peremptory challenges if it is a 12-member jury, and three peremptory challenges if it is a 6-member jury.

Front 205

Television Station sold $10K worth of advertising to Bob’s Guns Extravaganza for a traveling gun show that is scheduled to operate at the local convention center for 3 days. Bob, a citizen and resident of Oregon, has stopped payment on the check sent in payment for the advertising. Television Station wants you to take every step that you can to protect its interests. Bob has 2 truckloads of inventory parked at the convention center having an approximate retail value of $50K. In 3 days, Bob will move his merchandise to Jackson, MS. What action, if any, can you take to protect Television Station’s interests? Please specify what pleading must be filed and explain why the desired relief is available.

Back 205

Television Station may file a petition for writ of attachment to have the inventory seized. Such attachment can be based on the fact that Bob is a non-resident with no duly appointed agent in the state for service of process. In this case, the court may exercise quasi in rem jurisdiction over Bob by attaching his property (inventory in these facts) in LA. However, the judgment can only be executed against the attached property, which in this case is no problem because the inventory’s $50K value can easily satisfy the $10K debt Bob owes Television Station.