Civil Procedure Flow Chart Cause of Action File Petition by jtk40678

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									Civil Procedure Flow Chart: Cause of Action > File Petition > Challenge Petition (3
exceptions) > Answer > Incidental Demand > Answer to Incidental Demand >
Amend/Supplement Petition > Subpoena > Discovery > Pre-Trial Procedure > Trial >
Judgment > Appeal.

TIME DELAYS
A) Computation of time: The date of the act, event, or default after which the period
begins to run is not counted, and the last day of the period is counted, unless it is a legal
holiday. In a court of limited jurisdiction the time is computed, for appeal of denial of a
new trial, the day after starts the count.

B) Annulment for vices of form: any time unless voluntarily acquiesced.

C) Answers (time delay for filing):
1) Appeal: not obliged to answer unless wanting to have the judgment modified, revised,
reversed, or asking for damages from appellant. Then has 15 days from the return day or
lodging of the record.
2) City/Parish/JP Courts: 10 days from service unless served through sec of state then 15
days
3) District Court: 15 days after service; 10 days from ruling on exception; 10 days after
amended petition. On default judgment: any time prior to confirmation.
4) Incidental Demand: any time and up to the time of answer to principal demand w/o
leave of court. If answer filed then have to get leave of court.

D) Appeal from City and Parish Courts: 10 days from judgment or service of notice of
judgment.

E) Pleading exceptions: declinatory and dilatory - pleaded prior to or with the answer or
prior to or with the filing of any pleading seeking relief or prior to confirmation of default
judgment. A peremptory exception can be pleaded at any time prior to the submission of
the case for a decision. Trial of exceptions: decided in advance of the trial.

F) Devolutive appeal: 60 days (see below for further).

G) Suspensive appeal: 30 days (see below for further).

H) New trial in district court: 7 days, exclusive of holidays. Starts from the mailing from
the clerk or sheriff serving the notice of the judgment.

I) Further action after interlocutory judgment: 10 days from mailing of notice.

J) Charge to jury: any time during the trial.

K) Motion to strike: at any time either on the court’s motion or party motion.
L) Motion for judgment on pleadings: after the answer is filed, but within such time as to
not delay trial.

M) Summary judgment: P after answer filed; D at any time. Motion and affidavits served
10 days prior to hearing. Judge answers at any time but at least 10 days prior to trial.

N) Service of process: personal and domiciliary at any time of day or night including
Sundays and holidays.

O) Citation: Requested within 90 days on all named defendants. D can give written
waiver.

I: JURISDICTION
Jurisdiction is the legal power of a court to hear an action or proceeding involving the
legal relations of the parties and to grant the relief to which they are entitled.

SUBJECT MATTER JURISDICTION
SMJ is the legal power and authority of a court to hear a particular class of actions or
proceedings based upon the object of the demand, the amount in dispute, or the value of
the right asserted. SMJ cannot be conferred by consent of the parties, and a judgment
rendered by a court which lacks SMJ is void. When SMJ is based upon the amount in
dispute or value of the right asserted, interest, court costs, attorney fees or penalties are
not included.

Courts of Limited Jurisdiction (C.C.P. Arts. 4841, et seq.)
A) City Courts: Have concurrent jurisdiction with the district courts in cases where the
amount in dispute or the value of the property involved does not exceed $10,000, with
some exceptions (New Orleans - $20,000; Lake Charles, Monroe, Baton Rouge -
$15,000).

B) Parish Courts: Have concurrent jurisdiction with the district courts in cases where the
amount in dispute or the value of the property involved does not exceed $20,000, with
some exceptions such as Jefferson Parish - $10,000.

C) Justice of the Peace Courts: Have concurrent jurisdiction with the district courts
where the amount in dispute does not exceed $2,000.

D) Limitations upon Courts of Limited Jurisdiction: City, Parish, and JP Courts have no
jurisdiction in the following matters: Case involving immovable property; Case involving
the right to public office or position; Case in which the P asserts civil or political rights
under the federal or state constitutions. Claim for annulment of marriage, divorce,
separation of property, or alimony; Succession, interdiction, receivership, liquidation,
habeas corpus, or quo warranto proceedings. Case in which the state, parish, or other
political subdivision is a D; and Any other case or proceeding excepted from the
jurisdiction of these courts by law.
E) Additional Limitations on Limited Courts: City Courts: No jurisdiction over cases
involving tutorship, curatorship, emancipation, or partition (CCP Art. 4847(B)). JP
Courts: No jurisdiction over the following matters: adoption, tutorship, emancipation,
partition, executory proceeding, in rem or quasi in rem proceeding, injunction proceeding
except to arrest of its own writ and to enforce execution of judgments by a JP Court. No
jury trials in City, Parish, or JP Courts.

F) Incidental Demands: when a City or Parish Court has SMJ over the main demand, it
may exercise jurisdiction over any related incidental demand, regardless of the amount in
dispute in the incidental demand. However, when a compulsory reconventional demand
exceeds the court’s jurisdiction, the court shall transfer the entire action to a court of
proper jurisdiction. (Art. 4845).

G) District Courts: Have original and general jurisdiction.

H) Courts of Appeal: Permit appeal as a right in any civil matter to the appropriate
Circuit Court of Appeal. There are 5 Circuit Courts of Appeal (1st - Baton Rouge, 2nd -
Shreveport, 3rd - Lake Charles, 4th - New Orleans, and 5th - Gretna. Courts of Appeal
may review and decide questions of law and of fact.

I) Supreme Court: Has original jurisdiction over admission and disciplinary proceedings
against members of the bar. Appeal of right in certain cases: constitutionality of a statute
and criminal death penalty cases. All other cases are decided under the SCT’s
discretionary supervisory jurisdiction, which extends to all courts, or by writ of certiorari
to review a judgment of the Court of Appeal.

PERSONAL JURISDICTION
A) PJ is the legal power of a court to render a personal judgment against a party,
independent of any property owned by him. A court may obtain jurisdiction based upon
the following:

B) Service of process upon the defendant or his agent for service of process (SOP).
Agents for SOP may be expressly designated by the D or impliedly appointed by law to
receive process. For example, the Secretary of State is impliedly appointed by law as
agent for service of process for the following: Non-resident motor vehicle operators who
use Louisiana roads (LRS 13:3474); Non-resident operators of watercraft in Louisiana
(LRS 13:3479); and Foreign or alien insurers transacting insurance business in Louisiana
without a certificate of authority (LRS 22:1235).

C) Service of Process upon an attorney: Court can appoint an attorney to represent a
Louisiana domiciliary who is absent or incompetent or a non-resident. Remember, if
attorney is representing a person then service can be made upo n the attorney for that
person unless the attorney no longer is actively representing that person.

D) The court shall appoint an attorney at law to represent the defendant, on the petition
or ex parte written motion of P when the court has jurisdiction o ver the person or
property of the D, or over the status involved, and the D is: 1) A non-resident or absentee
who has not been served with process, personally or through an agent, and who has not
waived an objection to jurisdiction; or 2) An unemancipated minor or mental incompetent
who has no legal representative and who may be sued through an attorney at law
appointed by the court to represent him (CCP Art. 5093).

E) Consent to Jurisdiction: D may submit to the court’s jurisdiction or do so by a failure
to timely file a declinatory exception of lack of personal jurisdiction (CCP Art. 6 (3)).

F) Long-arm jurisdiction (Personal Jurisdiction over non-resident) (LRS 13:3201 et seq).
1) Specific Jurisdiction: A Louisiana court may exercise personal jurisd iction over a
nonresident who acts directly or by an agent as to a cause of action arising from any of
the following activities by the non-resident: a) Transacting any business in Louisiana; b)
Contracting to supply services or things in Louisiana; c) Causing injury or damage by an
offense or quasi-offense committed through an act or omission in Louisiana; d) Causing
injury or damage in Louisiana by an offense or quasi-offense committed through an act or
omission outside Louisiana if the non-resident regularly does or solicits business or
engages in any other persistent course of conduct or derives revenue from goods used or
consumed or services rendered in Louisiana; e) Having an interest in, using or possessing
a real right on immovable property in Louisiana; f) Non-support of a child, parent, spouse
or a former spouse domiciled in Louisiana to whom an obligation of support is owed and
with whom the nonresident formerly resided in Louisiana; g) Parentage and support of a
child who was conceived by the nonresident while he resided in or was in Louisiana; h)
Manufacturing of a product or component thereof which caused damage or injury in
Louisiana, if at the time of placing the product into the stream of commerce, the
manufacturer could have foreseen, realized, expected, or anticipated that the product may
eventually be found in Louisiana by reason of its nature and the manufacturer's marketing
practices.

2) General Jurisdiction: In addition to subdivisions (1) through (8), a Louisiana court
may exercise personal jurisdiction over a nonresident on any basis consistent with the
Louisiana or U.S. Constitutions (LRS 13:3201(B) and CCP Art 6 (B)).

3) Constitutional Limitations of Long-Arm Personal Jurisdiction Due process requires
that in order to subject a nonresident to personal judgment, defendant must: 1) have
certain minimum contacts with the forum state such that 2) maintenance of the suit does
not offend traditional notions of fair play and substantial justice. The Test: Use two-
prong "minimum contacts/fair play" test whether case involves claim of "specific"
personal jurisdiction (litigation related to forum activities) or "general" personal
jurisdiction (litigation unrelated to forum activities). "Minimum contacts" generally
satisfied if defendant has purposefully directed activities at forum residents. Once
minimum contacts established by plaintiff, burden shifts to defendant to prove
"unfairness," e.g. inconvenience or local prejudice. Whether it is fair to subject defendant
to personal jurisdiction depends upon several factor including: the burden on defendant;
the state's interest in the dispute; the plaintiff's interest in obtaining relief; the judicial
system' interest in efficient resolution; and the state's interest in substantive social
policies.

IN REM JURISDICTION (C.C.P. Art. 8): The legal power of a court to enforce a right
in, to or against property having a situs in Louisiana, claimed or owned by a nonresident,
not subject to personal jurisdiction. Applies to movable, immovable, corporeal and
incorporeal property. "Situs" for immovable and corporeal movable is where the property
is physically located. The situs of incorporeal movables such as negotiable instruments or
stock certificates is where the obligor is located. For all other incorporeal movables, the
situs is where the debtor is located.

QUASI IN REM JURISDICTION (C.C.P. Art. 9) The legal power of a court to render a
money judgment against a nonresident not subject to personal jurisdiction if the action is
commenced by an attachment of his property in the state. Must be preceded by
attachment of property in state, and unless defendant appears, judgment may only be
executed against the attached property. Quasi in rem jurisdiction is limited by Shaffer v
Heitner which requires minimum contacts for proper quasi in rem jurisdiction
(strengthened if there is a connection between property seized and cause of action).
Note: When the court exercises in rem or quasi in rem jurisdiction, the court must appoint
an attorney at law (referred to as a curator ad hoc) to represent the nonresident defendant
who has not been served with process or made a general appearance. (C.C.P. Art 5091 A
(2)).

JURISDICTION OVER STATUS (C.C.P. Art. 10): The legal power of a court to render
a judgment: 1) Adoption if the custodian is domiciled or the child is lawfully in
Louisiana, and court has personal jurisdiction over adoptive parent; or if the adoptive
parent is domiciled in Louisiana and the court has personal jurisdiction over the
custodian; 2) Emancipation if the minor is domiciled in Louisiana; 3) Interdiction if the
interdict is domiciled in Louisiana or is in the state and owns property in Louisiana; 4)
Tutorship and Curatorship if the minor, interdict, or absentee is domiciled or has property
in Louisiana; 5) Child Custody if the minor involved is a domiciliary, or is in Louisiana;
6) Annulment and Divorce if one or both parties are domiciled in Louisiana. Jurisdiction
for divorce exists when one of the parties is domiciled in the state at the time of fi ling. If
spouse has maintained a residence in Louisiana for 6 months, rebuttable presumption of
domicile; 7) Action to establish or disavow parentage if child is domiciled, in, born in, or
acknowledged in this state or mother is domiciled here when child born. An action to
disavow may also be brought if person seeking to disavow was domiciled here at time of
conception and birth.

II: VENUE
VENUE: The parish where an action or proceeding may properly be brought. Most venue
rules are permissive and thus objections to venue are waived if not raised prior to making
a general appearance or confirmation of a default. An objection to venue is made by
timely filing a declinatory exception of improper venue. The objection must be raised by
the defendant and cannot be raised by the court on its own motion. Certain venue rules
are non-waivable (e.g. "status venue").
VENUE GENERAL RULES (C.C.P. Art. 42):
A) Individuals: Resident domicile - Parish of domicile; Resides, but not domiciled -
Parish of residence; Non-resident with agent for SOP - Parish of agent’s P.O. Box; Non-
resident without agent for SOP - Parish where service is made (or long-arm venue if
applicable).
B) Corporations: Domestic - Parish of its registered agent; Foreign and licensed to do
business in the state - Parish of its primary place of business or principal business
establishment as designated in application to do business; Foreign and not licensed to do
business in state - Parish where service is made (or long-arm venue if applicable).
C) Insurers: Domestic - Parish of its registered office; Foreign or Alien - East Baton
Rouge Parish.
D) Partnership and Unincorporated Associations: Parish of its principal business
establishment

EXCEPTIONS TO GENERAL RULES (C.C.P. Arts. 71-85): The general rules of venue
under Article 42 are subject to the exceptions provided in Articles 71 through 85 and
otherwise provided by law (e.g., Long-arm statute):
A) Change of Domicile: Suit may be filed in the parish of old domicile for one year after
the change, or in the defendant's new domicile. The defendant can cut this off by filing a
declaration of intent to change domicile (C.C.P. Art. 71). Note: Domicile is defined as
the parish where the citizen has his principal establishment, generally his habitual
residence and an intent to remain indefinitely; if he resides in several places, and nearly
as much in one as another, and has not declared an intent to change domicile, he can be
considered to reside in any of those places at the option of the persons whose interests are
affected thereby (C.C. Art. 38).

B) Sequestration or action to enforce mortgage or privilege by ordinary proceeding may
be brought where all or part of property is located (C.C.P. Art. 72). Note: Executory
Process and Foreclosure- suit in the parish of situs of the property 05 the parish of
defendant's domicile, under article 42 only, will be proper (C.C.P. Art. 2633).

C) Joint or Solidary Obligors: The parish where venue is proper as to any one of them
under article 42 will be proper as to all (C.C.P. Art. 73). In a tort suit, an action against
all joint or solidary obligors may be brought where plaintiff is domiciled if one of the
defendants is an insurance company and venue is proper as to that company under Article
76 or if jurisdiction was obtained over one of the defendants under the Long-Arm statute.

D) Tort Suits- Venue will be proper a) in the parish where the damages were sustained, b)
in the parish where the wrongful conduct occurred, c) where the defendant is domiciled,
or d) in suits to enjoin wrongful conduct, venue proper where wrongful conduct occurred
or may occur (C.C.P. Art. 74).

E) Action to establish filiation: Domicile of child; where conception occurred; where
either parent resided at conception; where either acknowledged child; or where child
born. Action to disavow filiation: Parish of child's birth or where either parent resided at
time of birth (C.C.P. Art 74.1).

F) Custody and child support: a) To obtain custody - Parish of a party or last matrimonial
domicile; b) To change custody - Parish where custodial parent domiciled or custody
decree rendered; if the person awarded custody is no longer domiciled in state, parish
where person seeking custody is domiciled or where the custody decree was rendered; c)
To modify support - Parish where the person awarded support is domiciled; parish where
the support award was rendered if it has not been registered and confirmed in another
court of this state pursuant to Article 2786; and in the parish where the support was last
registered if registered in multiple courts of this state; if the person awarded support is no
longer domiciled in state, parish where the other person is domiciled or parish where
support award was rendered, if not confirmed, or parish where the support order was last
confirmed; d) A proceeding to register a child support, medical support, income
assignment order, or any such order issued by a court of this state for modification, may
be brought in the parish where the person awarded support is domiciled; e) For the
convenience of the parties and witnesses and in the interest of justice, a court, upon
contradictory motion or upon its own motion after notice and hearing, may transfer the
custody or support proceeding to another court where the proceeding might have been
brought.

G) Persons related by adoption wishing to marry Parish of either party's domicile (C.C.P.
Art. 74.3).

H) Action on judicial bond - where bond filed; Action against legal surety - Where
principal obligor may be sued (C.C.P. Art. 75).

I) Insurance Suits: a) Life insurance policy - Parish of decedent's death or where the
decedent was domiciled, or in the parish of any beneficiary's domicile; b) Health and
Accident policy - Where insured domiciled or where accident or illness occurred; c) Any
other policy - (E.g. uninsured motorist policy), where loss occurred or insured is
domiciled (C.C.P. Art. 76).

J) Action on a contract: May be brought in parish where contract was executed or where
any work or service was, or was to be, performed (C.C.P. Art. 76.1).

K) Action against person having business office on a matter over which that office had
supervision: Where office located (C.C.P. Art. 77).

L) Except for action to dissolve partnership, action against a partner on a partnership
obligation is correct where venue is proper as to the partnership. This also means that in
tort actions, or if the partnership is a solidary obligor, that the partner may be sued in a
parish other than the partnership's principal business establishment (C.C.P. Art. 78).
M) Actions for dissolution of a partnership: Must be brought in the parish where the
principal business establishment of the partnership is located and this may include
dissolution actions involving immovables (C.C.P. Art. 79).

N) Immovable Property: Suits involving immovables (except a community property
partition, a partnership partition, or a succession) may be brought in the parish where the
immovable is located or where the defendant is domiciled, including an action arising
from breach of lease of immovable or lessor's privilege and a partition; action to revoke a
donation of immovable property shall be brought in the parish in which all or part of the
property is located. A notice of lis pendens should be filed (C.C.P. Art. 80).
Note: This is a special type of notice of pendency of action which applies to any state of
federal court action affecting immovable property in Louisiana. It provides notice to third
persons and must be filed in the mortgage office where the property is located (C.C.P.
Art.3751).

O) Action involving succession: E.g., by a creditor, a partition, or to annul, shall be
brought in a court where succession is pending (C.C.P. Art. 81).

P) Action to partition community property and settle claims between former spouses
arising from the matrimonial regime or their co-ownership of community property shall
be brought in the proceeding where action to dissolve the community property regime is
pending or in a separate action in the parish where a judgment dissolving the commun ity
property regime was rendered. If the community owns immovable property the partition
action for both movable and immovable property and the settlement of claims between
the former spouses arising from the matrimonial regime or their co-ownership in
community property may be brought in the parish where any of the immovable
community property is situated. If the former spouses do not own community immovable
property, the action to partition the community property and to settle claims between the
former spouses arising from the matrimonial regime or their co-ownership of community
movable property may be brought in a parish where either party is domiciled. (C.C.P.
Art. 82).

Q) Action to partition partnership property: Same rule as above except as to co-partners
(C.C.P. Art. 83).

R) Actions involving public retirement and benefit plans: East Baton Rouge or parish of
plan domicile (C.C.P. Art. 84).

S) Action against a domestic corporation whose charter has been revoked: May be
brought any place where it could have been brought prior to revocation (C.C.P. Art. 85).

T) Other important venue provisions:
1) Louisiana Direct Action Statute (La. ILS. Section 22:655). Plaintiff can sue the
insurer directly in Louisiana on any liability policy written or delivered in the state or
providing coverage for an accident which occurred in the state The proper venue for such
direct actions are: a) where the accident occurred; b) in any parish where an action could
be brought against the insured or the insurer under Art. 42, including East Baton Rouge;
c) insured must also be joined as a defendant unless: 1) in bankruptcy or insolvent; 2)
service of process cannot be made on the insured; 3) the claim is between children and
their parents or married people; 4) the insurer is an uninsured motorist carrier; or 5) the
insured is deceased.
2) Long-Arm Statute: Venue is proper in the parish where plaintiff is domiciled or in any
parish of proper venue. (La. R.S. 13:3203).
3) Class Action: Brought on behalf of a plaintiff class shall be brought in the parish of
proper venue as to the defendant. In an action brought against a class of defendants,
venue is proper as to any member of the class named as a defendant (C.C.P. Art. 593).
4) Derivative Action of a shareholder, partner, or member: To enforce a right of a
corporation or unincorporated association shall be brought in the parish of proper venue
as to the corporation or unincorporated association (C.C.P. art. 614).
5) Non-resident attachment: may be brought in the parish where the attached property is
located (C.C.P. Art. 3545).

CHANGE OF VENUE
A) If venue is improper the suit may be dismissed or, in the interest of justice,
transferred to a court of proper venue (C.C.P. Art. 121).

B) Even if venue is proper, if an impartial trial cannot be had the suit may be transferred
to a parish where no party is domiciled.

C) Forum non conveniens: This doctrine allows a court to transfer a suit though venue is
proper, to a parish where suit might have been brought, if necessary for the convenience
of the parties and witnesses and in the interest of justice. Rules also permit transfer to and
from district and city courts where property damage suit is filed in one and personal
injury action in the other (See
C.C.P. Arts. 124 and 4852 and Art. 425). However, no suit brought in parish of plaintiff's
domicile, in a court of competent jurisdiction, and where venue is proper, may be
transferred for forum non conveniens (C.C.P. Art. 123).

D) Prescription: Filing suit in the wrong venue will serve to interrupt prescription if
service is made within the prescriptive period.

E) Note: A judgment sustaining an exception to venue and transferring case is an
appealable interlocutory judgment but a denial of an exception of improper venue may be
reviewed by supervisory writ if an appeal would unduly delay trial.

NON-WAIVABLE VENUE
Venue may not be waived, expressly or impliedly, in certain types of cases. In such cases,
venue is considered jurisdictional. Venue may not be waived prior to the institution of the
action. Otherwise, venue may be waived except in the following instances (C.C.P. Art.
44):
A) Action to annul judgment: Under Art. 2006 must be brought in trial court that
rendered judgment.
B) Successions: Must be brought where the decedent was domiciled or if not domiciled
in Louisiana, where the decedent owned immovable property; or if not domiciled and
owned no immovable property, where decedent owned movable property (C.C.P. Arts.
2811 and 81).

C) Annulment or divorce: Must be brought where either spouse is domiciled or in parish
of last matrimonial domicile.

D) Emancipation: Must be brought where the minor is domiciled.

E) Tutorship must be brought: 1) If domiciled in Louisiana, either in parish where the
surviving parent is domiciled, if one parent is deceased; or where the parent or person
having custody is domiciled, if parents are divorced or judicially separated; or where the
minor resides; 2) If parents were awarded joint custody, petition for appointment as co-
tutors in the court of the parish where the divorce or separation was instituted; or the legal
domicile of the minor, if specified in the joint custody award; or where the child resides;
3) If not domiciled in Louisiana, in the parish where immovable property of the minor is
situated; or, if no immovable property, where movable property is situated.

F) Interdiction: Must be brought where the interdict is domiciled; or if not domiciled, but
owns property in the state, where he resides; or if not domiciled or a resident, but owns
property in the state, where he may be found.

III: RECUSATION OF JUDGES (C.C.P. Arts. 151-161)
A) Grounds: 1) A judge of trial or appellate court shall be recused when he is a witness;
2) And may be recused when he has been involved as attorney in the cause; when any
attorney in a case represents the judge at time of hearing; when he has performed a
judicial act in the cause in another court; when he is related to a party or attorney in a
case; or when he is biased, prejudiced or interested in the cause.

B) Procedure: 1) Judge may be recused on own motion or motion of any party; 2) Judge
may then recuse himself or refer the motion. Motion will be heard by another judge of the
district. If none, motion may be heard by a lawyer appointed by the judge unless grounds
are the judge's interest in the cause; then a judge in adjoining district must hear it; 3) If
judge recused as witness, judge ad hoc will continue to hear case; ifjudge recused for any
other reason the supreme court shall appoint a judge from another district to hear the
case.

IV: JUDICIAL POWER AND AUTHORITY (C.C.P Arts. 221-227)
Contempt Power is any act or omission tending to obstruct or interfere with the orderly
administration ofjustice or impair the dignity of the court or respect for its authority.

A) Direct Contempt: In immediate view and presence of the court or failure to comply
with a summons or subpoena. May include $100 and one day in jail for direct contempt.
Punished immediately following verbal hearing.
B) Constructive Contempt: Includes willful disobedience of a court order, deceit by a
party or his attorney, improper interference with a juror or witness. Disobeying a TRO or
injunction may get $1,000 and one year in jail (LRS 13:3611). Punished following 48
hours notice and hearing. Note:        Court may imprison person until he performs.

V: ACTIONS (C.C.P. Arts. 421-611)
A civil action is a demand for enforcement of a legal right.

A) An action may be personal (personal obligation), real (rights to property), or mixed.

B) Actions employ either ordinary, summary, or executory procedure (C.C.P. Art. 851).
C) A cause of action may be used as a defense even if prescribed if it is connected with
the principal demand (C.C.P. Art. 424). Exception: Redhibition in connection with
enforcement of a negotiable instrument or a cause of action under the Federal Consumer
Protection Act.

D) Res Judicata: A party shall assert all causes of action arising out of the transaction or
occurrence that is the subject matter of the litigation (C.C.P. Art. 425). The exception is
that parties to a divorce action are not required to raise claims for spousal and child
support in the divorce action itself.

E) Unless strictly personal, a cause of action can be transmitted to heirs and legatees
(C.C.P. Art.
426).

F) Obligations do not die with you; creditors may sue heirs through succession
representative (C.C.P. Art. 427).

G) An action does not abate upon the death of a party, unless it is a strictly personal right
or obligation.

H) Cumulation of Actions: Actions that are of the same type may be cumulated against
the same defendant as long as proper venue and jurisdiction exist.
1) Cumulation by single plaintiff against single defendant: Plaintiff may cumulate
against the same defendant 2 or more actions even though based on different grounds if:
a) Each cumulated action is within the court's jurisdiction and brought in the proper
venue; and b) All of the cumulated actions are mutually consistent and employ the same
form of procedure.
2) Cumulation of plural plaintiffs or defendants: Two or more parties may be joined in
the same suit as plaintiffs or defendants if: a) There is a community of interest between
the parties joined; b) Each cumulated action is within the court’s jurisdiction and brought
in the proper venue; and c) All of the cumlulated actions are mutually consistent and
employ the same form of procedure (e.g. a summary proceeding and an ordinary
proceeding may not be cumulated).
I) Lis Pendens: Suits pending in more than one court on same transaction or occurrence
between the same parties in the same capacities. All but the suit filed first must be
dismissed, or, if defendant does not except, first final judgment shall be conclusive of all
(C.C.P. Art. 531). When a suit is brought in Louisiana while another is pending in
another state or in federal court on same transaction or occurrence, between same parties
in the same capacities, court may stay proceedings in second pending outcome of the first
(C.C.P. Art. 532).

J) Abandonment: If at any stage of a proceeding three years passes without either party
taking any steps in its prosecution or defense, the suit is deemed abandoned and will be
dismissed. Taking a deposition, serving requests for production of docume nts or
interrogatories or answers or objections thereto are all "steps" (C.C.P. Arts. 561 and
1474). Entry or removal of an attorney of record isn't a "step." Abandonment is effective
without formal order, but, on ex parte motion of any party, or affidavit of any other
interested person, the trial court shall enter a formal order of dismissal. The order shall be
served on the plaintiff pursuant to Article 1313 (mail/delivery/fax) or 1314 (service by
sheriff) and plaintiff shall have 30 days from date of service to move to set aside the
dismissal. The court may direct that a contradictory hearing be held prior to dismissal.
Note: The exceptions to when an action has been abandoned are a succession
proceeding: 1) Which has been opened; 2) In which an administrator or executor has been
appointed; or 3) In which a testament has been probated.
Abandonment of Appeal - An appeal is abandoned when the parties fail to take any step
in its prosecution or disposition for the period provided in the rules of the appella te court.

CLASS ACTIONS
1) Prerequisites (C.C.P. Art. 591, 592,594, 596): a) One of more members of a class
may sue or be sued as representative parties on behalf of all, only if: 1) The class is so
numerous that joinder of all members is impracticable; 2) There are questions of law or
fact common to the class; 3) The claims or defenses of the representative parties are
typical of the claims or defenses of the class; 4) The representative parties will fairly and
adequately protect the interests of the class; and 5) The class is or may be defined
objectively in terms of ascertainable criteria, such that the court may determine the
constituency of the class for purposes of the conclusiveness of any judgment that may be
rendered.

b) In addition to all of the above, a class action may be maintained if: 1) The prosecution
of separate actions by or against individual members of the class would create risk of: a)
Inconsistent or varying results which would establish incompatible standards of conduct
for the party opposing the class; or b) Individual adjudications by or against the class
members would be dispositive of the interests of the other members not parties or would
substantially impair or impede their ability to protect their interests; or 2) The party
opposing the class has acted or reflised to act in a manner applicable to the class as a
whole, thereby making final injunctive or declaratory relief appropriate for the whole; or
3) The court finds that the questions of law or fact common to the members predominate
over any questions affecting only individual members, and that a class action is the most
fair and efficient type of adjudication. The court will look to: a) The individual member's
interest in controlling their prosecution or defense in a separate action; b) The extent of
any litigation already commenced by or against individual members; c) The desirability
of concentrating the litigation in the particular forum; d) The possible difficulties in
managing the class action; e) The practical ability of individual class members to pursue
their claims without class certification; and f) Balance between the relief demanded and
the costs and burdens of class litigation. 4) The parties to settlement request certification
under sub-paragraph B(3) for purposes of settlement, even though the requirements of
subparagraph B(3) might not otherwise be met.

c) A class action shall not be certified for the purpose of adjudicating claims or defenses
dependent for their resolution on proof individual to a member of the class. However,
following certification, the court shall retain jurisdiction over claims or defenses
dependent for their resolution on proof individual to a member of the class.

d) Motion to certify must by made within 90 days after service of the initial pleading on
all adverse parties. Failure to make the motion allows any adverse party to file a notice of
the failure to move for certification. The action then continues between the named parties
alone, if the demand for class relief is denied.

e) If the court finds that the action should not be maintained as a class action, the action
may continue between the named parties.

f) In a C.C.P. Art 591(B)(3) class action the best notice practicable under the
circumstances is required to be given to all class members, including individual notice to
all members who can be identified through reasonable effort. This notice shall be given
after certification and shall allow a time delay during which individual class~ members
may opt out before the commencement of trial. The requirements of notice can be found
in C.C.P. Art. 592(B)(2).

g) A certified class action shall not be dismissed or compromised without the approval of
the court exercising jurisdiction over the class. Notice of a proposed dismissal shall be
provided to all members of the class together with the terms of any compromise. The
court shall retain authority to review and approve attorney's fees paid pursuant to any
compromise. The court shall also order a hearing to determine whether the proposed
compromise is fair, reasonable, and adequate for the class. All parties to the action,
including class members, shall be permitted an opportunity to be heard.

h) If the compromise provides for the creation of a settlement flind to be disbursed to
and among the class members, the court shall retain jurisdiction of the compromise to
ensure fairness, reasonableness, and adequacy.

i) Liberative prescription is suspended on the filing of the petition as to all class
members. Prescription begins to run again (1) as to any person electing to be excluded
from the class, from the submission of that person's election form, (2) as to persons
excluded for the class's inability to include them, 30 days after notice of their exclusion
or, (3) as to all members 30 days after notice is given that the class has been dismissed or
that the motion to certify has been denied.

2) Effect of Judgment (C.C.P. Art. 597): A judgment on the merits concludes all
members of the class, whether joined in the action or not, if the members who were
joined fairly insured adequate representation of all members of the class.

DERIVATIVE ACTIONS
May be brought to enforce a right by a shareholder, partner, or member of a corporation
or unincorporated association which reflises to enforce its own right.

A) The derivative action may be maintained as a class action when joinder of all parties
is impracticable, in such a case C.C.P. Arts 594-95 shall apply (C.C.P. Art. 611).

B) One or more members of the class who will fairly ensure the adequate representation
of all
members, may sue or be sued in a derivative class action on behalf of all members
(C.C.P. Art. 612).

C) The court shall consider if the action may be properly maintained as a class action
before any further proceedings. 1) If it is proper, the class shall be certified. 2) If it is not
proper, the class shall not be certified but all shareholders, partners, or members who
reflise or fail to join as plaintiffs in the action shall be joined as defendants.

D) A proper petition in a derivative action shall include: 1) Allegation that the plaintiff
was a shareholder, partner, or member at the time of the occurrence or transaction of
which he complains; 2) Allege with particularity the efforts of the plaintiff to secure from
the managing directors, governors, or trustees the enforcement of the right and the
reasons for his failure to secure such enforcement; 3) Join as defendants the corporation
or unincorporated association and the obligor against whom the obligation is sought to be
enforced; 4) Include a prayer for judgment in favor of the corporation or unincorporated
association and against the obligor; 5) Be verified by the affidavit of the plaintiff or his
counsel.

VI: PARTIES (C.C.P. Arts. 641-804)
A) Joinder
1) A person shall be joined as a party in the action when either: a) In his absence
complete relief cannot be accorded among those already parties; b) He claims an interest
relating to the subject matter of the action and is so situated that the adjudication of the
action in his absence may either: 1) As a practical matter, impair or impede his ability to
protect that interest. 2) Leave any of the persons already parties subject to a substantial
risk of incurring multiple or inconsistent obligations.

2) If a person described in Art. 641 cannot be made a party, the court shall determine
whether the action should proceed among the parties before it, or should be dismissed.
The factors to be considered by the court include: a) To what extent a judgment rendered
in the person's absence might be prejudicial to him or those already present; b) The extent
to which the prejudice can be lessened or avoided by protective provisions in the
judgment, by the shaping of relief, or by other measures; c) Whether a judgment rendered
in the person's absence will be adequate; d) Whether the plaintiff will have an adequate
remedy if the action is dismissed for nonjoinder.

B) Parties Plaintiff
1) Actual interest in the litigation is required to be a proper plaintiff.

2) Unemancipated Minors: They do not have the capacity to sue and the father, or the
mother if the father is mentally incompetent or absent, must bring suit. Also, with the
permission of the judge, the mother may represent child if the father fails or refuses to. If
the child is in custody of DSS, the appointed lawyer is the proper plaintiff. If the minor is
illegitimate or if one or both parents are deceased, judicially separated or divorced, the
child sues through a tutor appointed by the court. Even a parent (natural tutor) must be
appointed by the court.

3) Mental Incompetents: They do not have the capacity to sue, but the defendant must
object. Must sue through a curator appointed by the court.

4) Interdicts: The curator must bring suit for an interdict unless the suit is brought to end
the interdiction.
5) Succession Proceedings: The succession representative (executor or administrator) is
the proper party plaintiff in a succession proceeding. Heirs and legatees need not be made
parties.

6) Community Property Claims: Either spouse, during the existence of the community, is
the proper party plaintiff to sue to enforce a community claim, except where one spouse
is the managing spouse with respect to the community right sought to be enforced, that
spouse is the proper party plaintiff in an action to enforce such right (C.C.P. Arts. 686,
695).

7) When doing business under a trade name, one must bring suit in his own name (E.g.
"John Doe d/b/a Acme Trading Co.").

8) Officers of an unincorporated association must bring suit for the association.

9) Corporations and partnerships sue in their own name, except when they are involved
in a liquidation, in which event the liquidator or the receiver is the proper party plaintiff.

10) The pledgee of a right is the proper plaintiff to sue to enforce the pledged right.

11) Subrogation: If the subrogation of the right sought to be enforced is only partial, both
the subrogor and the subrogee must sue; if the subrogation of such right is total, the
subrogee alone must sue. Same rule with assignees.
C) Parties Defendant
1) Basically the same rules as for parties plaintiff. Also remember discussion about
when insured must be a defendant under La. Direct Action Statute.

2) For unemancipated minors: The father or if he's mentally incompetent or absent (or
fails or reflises), the mother. If they are separated, the tutor must be named as a
defendant. If there is no tutor, then suit may be filed against the minor and the court will
see that an attorney is appointed for the minor. The court-appointed attorney is the proper
defendant if the child is in custody of DSS.

3) A partnership must also be sued when a partner is sued personally on a partnership
obligation.

4) An unincorporated association (e.g. hunting club) has procedural capacity to be sued
in its own name and its members may be sued jointly on an obligation of the association
(C.C.P. Art. 738).

5) Unrepresented Defendants: The court shall appoint an attorney to represent a
defendant if it has jurisdiction over the perso n or the property of the defendant and the
defendant is (1) a nonresident or absentee who has not been served, (2) unemancipated
minor mental incompetent without a legal representative, or (3) or deceased and no
succession representative has been appointed. If the proceeding is in rem the court shall
appoint an attorney to represent a defendant who is dead (and no succession
representative has been appointed), is a corporation or partnership which cannot be
served, or whose property is under the administration of a legal representative who has
died or been removed without a successor (C.C.P. Art. 5091). The attorney must prevent
a default from being taken.

D) Substitution of Parties
1) When a party dies during suit his legal successor may have himself sub stituted on ex
parte motion. "Legal successors" means: (1) the survivors designated in C.C. Art. 2315.1;
i.e., persons who may bring a survival action; and (2) otherwise, means the succession
representatives, if under administration, or the heirs and legatees, if not under
administration.

2) Another party on ex parte motion may have court order the legal successor to
substitute himself.

3) Failure to substitute may result in dismissal of plaintiff's case or appointment of
attorney to represent legal successor to defendant.

4) Time for Substitution: a) If name and address of the successor is known and the
successor is a resident substitution must occur within 30 days from service of the
summons; b) If the name and address of the successor is known and the successor is a
nonresident or absentee, substitution must occur within 60 days from receipt of the
summons by registered/certified mail; c) If the successor is unknown, the summons must
be published in 2 publications not less than 15 days apart in a newspaper published in the
parish where the use is pending and substitution must occur within 60 days of the first
publication.

PART 2: ORDINARY PROCEEDINGS
I: PLEADINGS
A) Litigation Is Initiated by The Filing of a Petition: Louisiana requires fact pleading
(compare with federal notice pleading) and thus the facts pleaded must set forth a cause
of action with particularity. Judgment may grant relief even if not prayed for in the
pleading and both trial and appellate courts may render any judgment that is just, legal,
and proper (C.C.P. Arts. 862, 2614).
Note: Allegations of fraud or mistake must be pleaded with particularity. Malice, intent,
and
knowledge and other conditions of the mind may be alleged generally.

B) Form of Petition - Every petition shall: 1) Have a caption; 2) Set forth concise
allegations in numbered paragraphs; 3) Be signed by an attorney or the unrepresented
plaintiff; 4) Set forth the name and domicile of all parties; 5) Set forth all causes of action
arising out of; and the material facts of; the transaction or occurrence that is the subject
matter of the litigation; 6) Designate an address (no P.O. Box) for receipt of service; and
7) Conclude with a prayer for judgment.

C) Attorney's Signature: An attorney's signature on a pleading is a certificate that he has
read it and that to the best of his knowledge, information and belief there is good grounds
(both factual and legal) to support it and it is not filed to harass or delay. An attorney may
be disciplined for violation of the rule or if the pleading contains scandalous or indecent
matter. An attorney is an officer of the court (C.C.P. Arts. 863, 371).

D) No Specific Monetary Amount: No specific monetary amount ("ad damnum clause")
may be included in allegations or prayer in an o riginal, amended, or incidental demand in
a tort suit (C.C.P. Art. 893). If you need a monetary amount to establish jurisdiction or
the right to jury trial, allege that the claim exceeds or is less than the required amount.
Motion to strike is the appropriate remedy, for improperly requesting a specific monetary
amount of damages. Attorneys fees and costs are available if motion to strike is
necessary. Doesn't apply to conventional obligations, promissory notes, open accounts,
negotiable instruments, alimony or child support, tax claims or garnishment proceedings.

E) Presumption of Genuineness: Verified petition gives presumption of genuineness of
signatures of makers and endorsers of a security interest and authority and capacity of
those who sign in representative capacity (La. R.S. 10:9-508).

SERVICE
Citation and service thereof are essential in all civil actions except summary and
executory proceedings and divorce actions under C.C. Art. 102. Defendant may execute
written waiver. Service shall be requested on all named defendants within ninety days of
the commencement of the action. When a supplemented or amended petition is filed
naming any additional defendants, service of citation shall be requested within ninety
days of its filing. All of the above also applies when the state is a party through La. R.S.
13:5107(D). Note: If security is not timely requested within ninety days of filing, and the
court finds that the failure do so was due to bad faith, prescription will be considered
never to have occurred.

A) Making Service:
1) Personal service by one so authorized; generally the sheriff or, if he fails, after 5 days
and diligent effort, a private person appointed by the court (C.C.P. Art. 1291).
2) Domiciliary service is made by leaving the process at the dwelling or usual place of
abode of the defendant, with a person of suitable age who resides in the "domiciliary
establishment" (C.C.P. Art. 1234).
3) On a corporation by personal service on its registered agent, or if none, on any officer,
director or employee of suitable age and discretion where the corporation regularly
conducts business; failing that, after certifing there was a diligent effort to serve, upon the
Secretary of State (C.C.P. Arts. 1261-62; La. R.S. Section 13:3471). Serve a bank on its
president, cashier, or secretary.
4) Long-arm service by mailing the citation and petition by certified or registered mail or
actual delivery to the defendant (La. R.S. Section 13:3204).
5) On a non-resident motorist by service on the Secretary of State and mailing notice of
service to the defendant, certified or registered mail, return receipt requested, to the
address shown in the accident report (La. R.S. Section 13:3475).
6) On a partnership by personal service on a partner, or failing that, on a ny employee.
7) On an unincorporated association by personal service on an agent, a managing official,
or failing that, on any member.
8) Foreign or alien insurer without "certificate of authority" who transacts business here,
serve Secretary of State (La. R.S. Section 22:1523).
9) On a "representative"- if a court has appointed a representative for a person, that
person is served by personal or domiciliary service on the representative. When service is
proper on a client's attorney, service may be made on the attorney's secretary in the
attorney's office (C.C.P. Art. 1235).
10) On a non-party doctor, by personal service on any clerical employee of the doctor.

B) After service is accomplished, an affidavit (sheriff's return) must be filed to prove the
service. Note that a default judgment may not be entered until 30 days after filing
affidavit under long-arm statute whereas time is 15 days from sheriff's service of process
if the defendant fails to respond (C.C.P. Art. 1701). The sheriff's return is considered
prima facie correct.

C) Contents of Process: Process contains a certified copy of the petition and citation. The
citation must: 1) Be signed by the clerk of court; 2) Contain the date of issuance; 3) The
title of the action; 4) The name of the perso n to whom it is addressed; 5) The title and
location of the court issuing the process; and 6) A statement of demand that the defendant
make an appearance by filing pleadings, etc. within the specified time or suffer a default
judgment (C.C.P. Art. 1202).
D) After service of the original citation and petition: Service of a pleading that requires
no appearance or answer may be made by mailing, hand delivering, or faxing the
pleading to the opponent or the opponent's attorney of record (C.C.P. Arts. 1313 and LRS
13:3471(8)). A certificate of service must be filed into the record. Pleadings which may
not be mailed or hand delivered under C.C.P. Art 1313, must be served by the sheriff
upon the opponent, their attorney of record, or the clerk of court in the absence of an
attorney of record or known address of the opponent. Personal service upon the partner or
office associate of the opponent's attorney of record is valid service. Service may not be
made on the opponent's attorney of record after final judgment d isposing of all issues,
delays for appeals have lapsed, and no timely appeal has been taken (C.C.P. Art. 1314).

DEFAULT
A default judgment may be entered against the defendant if he fails to respond timely.

A) Time Limits: 1) Fifteen (15) days from the service of the petition where service
effected within the state. (10 days for city or parish courts. See Section H (1) below.); 2)
Thirty (30) days from filing of affidavit regarding service of petition where the longarm
statute has been use4 to gain personal jurisdiction.

B) Procedure: Once the applicable time period elapses, plaintiff has a preliminary default
entered in the minutes of the record. After two days exclusive of holidays, the plaintiff
may appear and confirm (prove) the default by presenting a prima facie case. A default
judgment is then entered. It is a final judgment; in suits on open account, NSF checks,
promissory notes or negotiable instruments, submit proof with affidavit of correctness
and proposed judgment and hearing not required unless judge wants one (C.C.P. Art.
1702). For conventional and delictual obligations, affidavit proof with exhibits can also
be used unless the judge orders oral testimony. In personal injury cases, the treating
physician's or dentists narrative may be used in lieu of testimony. For divorces under
Civil Code Article 103(1), no hearing is required unless the court orders. Plaintiff just
submits affidavit and proposed final judgment.
Note: No preliminary default is necessary in City or Parish Courts. If defenda nt fails to
answer or respond within ten days, default is confirmed on the eleventh day.
C) Notice to Defendant: 1) If the defendant was served personally, no further notice of
the default judgment is required; 2) If domiciliary service was used, then notice of the
default judgment must be served by the sheriff by personal or domiciliary service. If
original service was on secretary of state, serve default judgment on SOS (C.C.P. Art.
1913).

ANSWER
A) Defendant has 15 or 30 days (under long-arm statute) to file his answer in district
court (10 days in city or parish court unless citation is served through the secretary of
state in which case all defendants have 15 days). However, if an exception is filed prior
to the answer, then an answer is not required until 10 days after the exception is overruled
or referred to the merits, or if the exception is sustained, 10 days after service of the
amended petition.
B) Contents of the Answer: The answer either admits or denies the allegations of the
plaintiff contained in each paragraph of the petition and all allegations not denied (except
as to damages) are deemed admitted. Defendant can also deny by stating that he lacks
knowledge or information sufficient to form a belief in the truth of the allegation.
1) General denials are not used. The defendant must address issues specifically (C.C.P.
Art. 1004).
2) Affirmative defenses, which include such defenses as a failure of consideration,
mitigation of damages, contributory negligence, and fraud, must be raised in the answer.

EXCEPTIONS
A) As stated above, a defendant has 15 or 30 days to file an answer. However, if the
defendant raises an exception, then an answer is not required until 10 days after the
exception has been overruled.

B) An exception is used by a party to retard or dismiss a proceeding. There are three
types of exceptions: 1) Declinatory; 2) Dilatory; and 3) Peremptory. There is no need to
plead these exceptions in any order, nor one in the alternative of the other.

C) Declinatory Exceptions (C.C.P. Art. 925): Literally this means that the exceptor
declines the jurisdiction of the court (C.C.P. Art 923). This exception may be raised upon
the following grounds (illustrative list): 1) Insufficiency of citation; 2) Insufficiency of
service of process; 3) Lis Pendens (C.C.P. Art. 531); 4) Improper Venue; 5) Lack of
personal jurisdiction; 6) Lack of subject matter jurisdiction.
NOTE: Objections which may be raised through a declinatory exception, except lack of
subject matter jurisdiction and non-waivable "status" venue, are waived unless pleaded.

D) Dilatory Exceptions (C.C.P. Art. 926): Literally this means an exception interposed to
delay (C.C.P. Art 923). Thus the objections here are to the form of the proceeding or for
more information. Among the grounds for a dilatory exception are: 1) Prematurity (e.g.
filing for divorce before the applicable time period has elapsed); 2) Want of amicable
demand; 3) Unauthorized use of summary proceeding; 4) Nonconformity with the
formalities of the petition; 5) Vagueness or ambiguity in the petition; 6) Lack of
procedural capacity; 7) Improper cumulation of actions, including improper joinder of
parties; and 8) Discussion (C.C.P. Art. 5151).
Note: All dilatory exceptions must be made timely (see below) and in one motion or
they are deemed waived.

E) Peremptory Exceptions (C.C.P. Art. 927): Defined as an exception which if granted
will result in dismissal of the suit (C.C.P. Art 923). Grounds for a peremptory exception
include: 1) Prescription; 2) Res judicata; 3) Non-joinder of a party under Articles 641 and
642; 4) No cause of action; 5) No right of action or no interest in the plaintiff to institute
suit.
Note: Res Judicata and prescription must be affirmatively alleged. The court on its own
motion (either at trial or appellate level) may recognize the other peremptory exceptions
and dismiss the case.
F) Res Judicata: a valid and final judgment is conclusive between the same parties (LRS
13:4231). 1) If in favor of plaintiff, all causes of action existing at the time of final
judgment arising out of the same transaction or occurrence are extinguished and merged
in the judgment; 2) If in favor of defendant, all such causes of action are extinguished and
judgment bars a subsequent action on those causes of action; 3) If in favor of either,
judgment is conclusive in any subsequent action between them as to any issue litigated
and d&termined if its determination was essential to the judgment.
Res Judicata "Exceptions": A judgment does not bar another action by the plaintiff
when: (LRS 13:4232) 1) Exceptional circumstances justify relief from res judicata effect
of judgment; 2) Judgment dismissed first action without prejudice; or 3) Judgment
reserved the right to plaintiff to bring another action. In addition, in divorce matters,
actions for contribution to a spouse's education or training and actions for partition of
community property, only those causes of action actually adjudicated are barred by res
judicata.

G) Preclusion by judgment (C.C.P. 425)- a party shall assert all causes of action arising
out of the transaction or occurrence that is the subject matter of the litigation. Not
applicable to divorce, custody support or alimony.

H) Time for Pleading Exceptions:
1) Declinatory and dilatory: these exceptions must be raised prior to or in the answer or
prior to confirmation of a default judgment. When both exceptions are pleaded, they must
be filed at the same time (C.C.P. Art 928).
2) Peremptory: these exceptions may be pleaded at any time in either trial or appellate
court prior to submission of the case for decision.
3) All exceptions can be pleaded at the same time.
4) When any of the three exceptions are pleaded before or with the answer, they shall be
tried and decided in advance of the trial of the case.
5) When a peremptory exception has been filed after the answer but prior to the trial, it
shall be tried and disposed of either in advance of or on the trial of the case.
6) When a peremptory exception has been filed after the trial of the case, the court may
rule at any time unless the party against whom it is pleaded desires and is entitled to
introduce evidence thereon. In the latter, the peremptory exception shall be tried
specially.
7) The appellate court may consider peremptories filed before case was submitted and
may remand for trial of exception of prescription.

I) Evidence on Trial of Exceptions
1) Declinatory and Dilatory: Evidence may be introduced to support or controvert any of
the objections pleaded when the grounds thereof do not appear from the petition, citation
or return thereon.
2) Peremptory: a) If pleaded at or prior to the trial, evidence may be introduced to support
or controvert any of the objections pleaded, when the grounds thereof do not appear from
the petition. b) If pleaded in the trial court, after trial of the case, but prior to submission
for a decision, plaintiff may introduce evidence in opposition, but defendant may only
offer evidence to rebut plaintiff's evidence. c) No evidence can be offered at any time to
support or controvert an exception of no cause of action.

J) Result of Sustaining an Exception: 1) Declinatory- amend the pleadings, transfer the
case or dismiss the case depending on the grounds; 2) Dilatory- amend the pleadings to
conform to the proper form, if possible; 3) Peremptory- dismissal results when a
peremptory exception is sustained, unless the ground can be cured through amendment.

MOTION FOR SECURITY FOR COSTS
Defendant by ex parte motion may require plaintiff to give bond or other security in
amount set by court, and proceedings stop until security is furnished (LRS 13:1215).

INCIDENTAL DEMANDS
A) May be filed prior to or at the same time the answer is filed. Leave of court is
required to file an incidental demand after answer to main demand is filed. An answer
must be filed to an incidental demand, just as if it were an original petition.

B) Jurisdiction: If the court would have valid jurisdiction over the incidental demand
were it filed separately, it will have jurisdiction over the incide ntal action.

C) Venue: Venue proper to the primary demand is proper to the incidental demand.
Defendant to incidental may only object to venue if it is improper as to principal demand
(C.C.P. Art. 1034). Intervenor may not object to venue (C.C.P. Art. 1094).

D) Dismissal of the Primary Claim: This will not result in dismissal of the incidental
demand.

E) A party who does not assert in an incidental demand an action which he has against a
party or third person, does not thereby lose his right of action except: 1) With respect to
compulsory reconventional demand, discussed below, and 2) That a defendant or
defendant in reconvention will lose his right or cause of action against a third person who
is liable to him for all or part of the principal demand if such third person can prove that
he had means of defeating the action which were not used because the defendant did not
join him or neglected to appraise him that suit had been brought (C.C.P. Arts. 1037,
1113).

F) When a parish or city court has jurisdiction over the main demand it may exercise
subject matter jurisdiction over any incidental action regardless of amount in dispute in
the incidental demand, except that when a compulsory reconventional demand exceeds
jurisdiction, the court shall transfer the action to the district court. The party whose
incidental demand caused the transfer must pay the clerk's cost within 30 days or his
incidental demand may be dismissed (C.C.P. Art. 4845).

G) The incidental demands are:
1) Reconventional Demand (same as counterclaim): a) A reconventional demand may
include any claim, whether related to the primary action or not; b) The defendant in the
principal action (except in an action for divorce) shall assert in a reconventional demand
all causes of action that he may have against the plaintiff that arise out of the same
transaction or occurrence (C.C.P. Art. 1061); c) Need for Third Parties- Often, the filing
of a reconventional demand will necessitate the bringing in of other defendants in
reconvention. This will be allowed with leave of court and if the court's jurisdiction can
be shown to extend to the new parties; d) If a cause of action arises or is acquired by the
defendant in the principal action after answer is filed, it may still, with leave of court, be
presented as a reconventional demand; e) Service- when an answer contains a
reconventional demand, personal service must be made on the plaintiffs counsel of
record.

2) Cross-claim: Party may assert a demand against a co-party provided the demand arose
out of transaction or occurrence that is the subject matter of the original action or of a
reconventional demand. a) Citation is unnecessary; service by sheriff on counsel of
record; b) Persons other than those made parties to original action may be made parties to
a cross-claim.

3) Intervention: Where third parties enter a lawsuit, taking the lawsuit as they find it.
The intervening party must be seeking to enforce a right related or connected to the
object of the pending suit by: a) Joining with the plaintiff in demanding the same or
similar relief; or by b) Joining with the defendant in resisting the claims asserted against
the defendant; or by c) Opposing both the plaintiff and the defendant. Example: Heirs
intervening in an action against the executor of a succession; holders of vendor's privilege
intervening in mortgage foreclosure.

4) Third Party Demand: The defendant or defendant in reconvention may bring into the
lawsuit one who is or may be liable to him in indemnity or contribution for all or part of
the principal demand. Prescription in an incidental demand (including an intervention) is
not barred by prescription so long as it was not barred at the time the main demand was
filed and is filed within 90 days of service of the main demand (and for third party
defendant, within 90 days of service of third party demand) (C.C.P. Art. 1067).

MOTIONS
A) A motion is an application to the court for an order. Must be in writing unless
presented in some other pleading or made during trial or hearing or in open court. They
may be ex parte (i.e. without hearing the adverse party) if the order sought is one to
which the mover is clearly entitled without supporting proof; or contradictory if the order
sought is one to which the mover is not clearly entitled, or which requires supporting
proof.

B) Motion to Strike (C.C.P. Art. 964): The court on its own motion or that of any party
may at any time and after a hearing strike from a pleading any insufficient demand or
defense or any redundant, immaterial, impertinent, or scandalous matter (C.C.P. Art.
964).
C) Motion for Summary Judgment (C.C.P. Art. 966): A motion for summary judgment is
based on claim that there is no material fact in issue ("no genuine issue of material fact")
and mover is entitled to judgment as a matter of law.
1) If granted, will result in a final appealable judgment, but if motion denied, there is no
immediate right of appeal;
2) A summary judgment may be rendered on a particular issue, theory of recovery, cause
of action, or defense in favor of one or more parties, even though granting summary
judgment does not dispose of the entire case (C.C.P. Art. 966(E));
3) Motion may be filed by the plaintiff after the answer has been filed. The defendant's
motion may be filed at any time (C.C.P. Art. 966(A)(l));
4) The burden of proof remains with the movant. However, if the movant will not bear
the burden of proof at trial, the movant's burden on the motion does not require him to
negate all essential elements of the adverse party's claim, actio n or defense, but rather
point out that there is an absence of factual support for one or more elements essential to
the adverse party's claim, action, or defense. Thereafter if the adverse party fails to
produce factual support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of material fact.
5) Affidavits (supporting or opposing) require: a) Competent affiant; b) On personal
knowledge; and c) Facts admissible at trial (C.C.P. Art 967).
6) Service: The motion for summary judgment and supporting affidavits must be served
at least 10 days before the specified hearing date.

D) Motion for Judgment on the Pleadings (C.C.P. Art. 965): May be used by any party
after the answer has been filed. Court looks only at the pleadings themselves, and
considers all of the mover's un-denied allegations, and all of opponent's allegations, as
true.

E)Note: Neither summary judgment nor judgment on the pleadings can be granted in a
matrimonial controversy, except when agreed upon by both sides, and both sides are
represented by counsel (C.C.P. Art. 969).

AMENDED AND SUPPLEMENTAL PLEADINGS
A) Petition: Plaintiff may amend without leave of court before the answer is served.
Otherwise, leave of court or consent of opposing counsel is required. An answer to the
amended petition is required within 10 days (or within 15 days of the service of the
original petition if longer).

B) Answer: Defendant may amend once within 10 days after original answer served.
Otherwise need leave of court or written permission of adverse party.

C) Exceptions: Dilatory and declinatory may be amended prior to hearing with leave of
court or written permission of adverse party, but only to "amplify." The peremptory may
be amended at any time, even to plead an objection not originally set forth (C.C.P. Art.
1152).
D) Relation Back: If the action or defense asserted in the amended petition or answer
arises from the conduct, transaction, or occurrence set forth in original pleading, the
amended petition 'relates back" to original filing date (C.C.P. Art. 1153).

II: DISCOVERY (C.C.P. Arts. 1420-1474)
SUBPOENAS
A) A subpoena when served, requires the object of the subpoena to attend a hearing, trial
or deposition.
B) Witnesses who reside or work in Louisiana may be subpoenaed to attend trials or
hearings anywhere in the state. The party making out the subpoena is required to pay
expenses for witnesses living outside the parish or more than 24 miles from the
courthouse (La. R.S. Section 13:3661).

C) Subpoena Duces Tecum: Definition - this document compels a witness to bring
certain documents or tangible things with him. If the subpoena does not name a person,
any other person knowing about the documents may appear to give information about
them.

DISCOVERY IN GENERAL
A) Parties may obtain discovery regarding any matter not privileged which is relevant to
the subject matter involved in the pending action (C.C.P. Art. 1422). The information
sought need not be admissible at trial if information is reasonably calculated to lead to the
discovery of admissible evidence.

B) A party objecting to discovery request may seek a protective order.

C) Types of Discovery: 1) Depositions; 2) Interrogatories; 3) Requests for production of
documents or things or permission to enter upon land; 4) Physical and mental
examinations; 5) Request for release of medical records; and 6) Request for admissions.

DEPOSITIONS
A) Place for taking a deposition: 1) With consent- if the deponent agrees, the deposition
may be taken anywhere; 2) Without consent - a) In-state deponents- depositions must be
taken either where the court orders or in the parish in which the deponent resides, or is
employed or transacts business in person; b) Out-of-state deponents- Deposition of
nonresident may be taken in accordance with the laws of the foreign state; the deposition
of nonresidents temporarily in state may be taken in the parish where he is served with a
subpoena or where the court orders.

B) Requirement: An officer (court reporter) authorized to administer oaths must certify
the record of testimony.

C) Contents: Questions in a deposition may address any relevant, non-privileged matter,
even if the information proves to be inadmissible later.
D) Objections: All objections will be noted by the officer and the evidence objected to
shall be taken subject to the objections. Unless otherwise stipulated, all objections are
considered reserved until trial or other use of the deposition. However, a party may
instruct a deponent not to answer when necessary to preserve a privilege, to enforce a
limitation on evidence imposed by the court, to prevent harassing or repetitious questions,
or to prevent questions which seek information that is neither admissible at trial nor
reasonably calculated to lead to the discovery of admissible evidence (C.C.P. 1443 (D)).
Objections that could cure the problem, such as objections to the form of the question or
responsiveness of the answer, are waived if not made during the questioning. Other
objections, such as relevancy, are not waived (C.C.P. Art. 1455).

E) Motion to Suppress (Objections as to Completion and Return of Deposition): Errors
and irregularities in the manner in which testimony is transcribed or the deposition is
prepared, signed, certified, sealed, endorsed, transmitted, or otherwise handled by the
officer unless the rules are waived unless a motion to suppress the deposition is made
promptly after the defect is, or with due diligence, should have been, discovered (C.C.P.
Art. 1456).

F) Motion to Terminate: A party or deponent may move to terminate the deposition upon
showing it is being conducted in bad faith or to annoy, embarrass or oppress the deponent
or a party. The court may terminate or limit scope and manner of the taking of the
deposition. If the deposition is terminated, it can be resumed only on court order (C.C.P.
Art. 1444).

G) Use of Depositions;
1) Preservation of testimony- depositions may be used to preserve testimony for a
possible trial, e.g. of a witness who is stick when no lawsuit has been filed but litigation
is likely. In this situation, twenty days notice is needed and an attorney must be appointed
for the witness and potential parties (C.C.P. Art. 1430).
2) At trial: a) Impeachment- depositions may be used to impeach a witness; b) The
deposition of a party, or of an officer or director of a corporation, partnership,
association, or governmental agency which is a party, may be used by an adverse party
for any purpose; c) The deposition of a witness, whether or not party, may be used in any
way at trial, if the witness should die or otherwise be unavailable, if the witness resides
more than 100 miles from the courthouse or is out of state (unless his absence was
procured by party offering the deposition), or in exceptional circumstances; d) If a party
uses part of a deposition, an adverse party is permitted to introduce any other part (C.C.P.
Art. 1450; C.E. Art. 804); e) After notice giving other counsel 10 days to object, the
deposition of an expert may be used by any party for any purpose. Objector must pay
reasonable expert fees in advance. Notwithstanding objection of counsel, the court may
permit use of expert's deposition if justice so requires (C.C.P. 1450(5)).

H) Method of Taking Deposition: 1) Oral examination; 2) Through written questions, to
be answered before an officer (C.C.P. Art. 1434); 3) Officer recording testimony sends it
by mail or courier to party ordering deposition, who becomes custodian. Attorney who
takes deposition, his firm, and the client are liable in solido to pay reporter's charges
(C.C.P. Art. 1446).

I) Depositions in another state or foreign jurisdiction ("Letters Rogatory"). Procedure:
1) Reasonable notice in writing to all parties stating: a) Time and place of deposition; and
b) Names and addresses of deponents, or if name unknown, general description sufficient
to identify.
2) Apply to court for issuance of letters rogatory addressed to "the appropriate authority"
(name the state or country).
3) Letters rogatory issued to the appropriate authority in the foreign jurisdiction
requesting the deponent to answer the letters rogatory.

INTERROGATORIES
A) Written questions directed to any party.
B) Must be answered under oath, or objected to, within fifteen days of service
(Defendant has thirty days from service of petition and state always has thirty).
C) Limit of thirty-five, including sub-parts, unless you obtain leave of court. If more
than 35, can answer which ones you want and object to the rest.

REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, OR ENTRY
UPON LAND
A) They may be served on any party, or as an independent action on a witness (C.C.P.
Art 1463)
B) Once served, the adverse party must make all specified materials available for
inspection and copying, or permit entry upon land for the purpose of inspection,
surveying, etc.
C) A fifteen day time limit is imposed for responding or objecting. (Defendant has thirty
days from service of the petition) (C.C.P. Art. 1462).
D) A party may organize produced documents to correspond with requests, or may
produce them as they are kept in the usual course of business.

COMPELLING PHYSICAL OR MENTAL EXAMINATIONS (C.C.P. Art. 1464).
A) An adverse party may be compelled to undergo such an exam only if the physical or
mental condition of the party is at issue (Exam permitted by MD, vocational
rehabilitation expert, or a licensed clinical psychologist).
B) Examining Physicians: A party who has compelled a mental or physical exam under
C.C.P. Art. 1464 must deliver a copy of the exam (including the MD's conclusions) to the
other parties in interest if requested, but then may request that the examined party to
deliver reports of any exams he has or may take for the same condition (C.C.P. Art.
1465). By requesting the examination report, the examined party waives any past or
future patient-physician privilege pertaining to the disputed condition.

REQUEST FOR RELEASE OF MEDICAL RECORDS (C.C.P. Art. 1465.1)
A) Any party may serve on any other party a request that he sign a release directing a
specific health care provider to release records of the party whose medical condition is at
issue.
B) Fifteen days to sign release or object.
C) Once release obtained, send it to the health care provider and the subject party at the
same time.
D) Within seven days of receipt of medical records, send copy to subject party.

AFFIDAVIT OF MEDICAL COST
A) Unless a controverting affidavit is filed, an affidavit establishing medical services and
costs shall be sufficient evidence to support a finding of fact by a judge or jury that the
bill is authentic. The affidavit must be made by the person who provided the medical
services or the official custodian in charge of the medical records, accompanied by an
itemized statement specifically setting forth the service provided and corresponding
charge. The affidavit must be filed with the clerk of court and served on all parties and
affected persons at least 30 days before trial.

REQUESTS FOR ADMISSION OF FACTS OR GENUINENESS OF DOCUMENTS
(C.C.P. Art. 1466)
A) Requests may only be served upon an adverse party.
B) Conclusive Presumption: If no answer is made within fifteen days, the fact is
considered conclusively proved or document is considered conclusively genuine.
C) Methods of Answering: The party may object to the questions, state that he has no
knowledge, admit, deny, or state that the information is privileged. Cannot state
"insufficient information" unless party also states he made "reasonable inquiry."
D) If answers insufficient, move to determine sufficiency.
E) If a party is forced to prove a fact denied, then costs and attorneys' fees may be
recovered.

COMPELLING DISCOVERY AND SANCTIONS
A) A party seeking discovery from one who fails to comply with the discovery request
may apply to the court for an order compelling such discovery. The court may also
impose sanctions for failure to comply with request or the court's order compelling
discovery. Sanctions may include: 1) Deeming a matter proved; 2) Excluding evidence
of the disobedient party; 3) Striking pleadings, dismissing the case, or entering a default
judgment against the disobedient party; 4) Assessing costs and attorney's fees.

MISCELLANEOUS DISCOVERY PROVISIONS
A) Work product: Writings prepared by a party or his attorney (work product) in
anticipation of litigation or in preparation for trial are not discoverable. However, this
applies only to writings, not video tapes or other tangible things. Thus, surveillance films,
for example, are discoverable. Defendant need not produce a surveillance film until after
plaintiff's deposition is taken.

B) Any type of statement or writing made by a party is discoverable by him.

C) Experts: The name of an expert a party expects to call as witness at trial and the
subject matter and substance of his testimony are discoverable. The facts known to an
expert not expected to be a witness, but retained in anticipation of litigation or
preparation for trial, are only discoverable in exceptional circumstances (impracticable to
obtain facts otherwise), unless the expert is an "examining physician." The writings of an
expert prepared for trial have "work product" privilege like writings of lawyers. Party
seeking discovery pays reasonable expert fee, unless manifestly unjust.

D) Generally, there is no duty to supplement the responses which were complete when
made, except: 1) Any question regarding the identity and location of persons with
knowledge of discoverable matters and expert witnesses and the subject of their
testimony; 2) Information that renders the previous response incorrect; or 3) Court order
or agreement of parties. (C.C.P. 1428).

E) Interrogatories, requests for production, requests for admission, and responses Are not
filed in record unless needed to argue motions to compel, for trial, or appeal, but party
who serves them acts as custodian. They are considered a "step" even if not filed (C.C.P.
Art. 1474).

F) Subpoena duces tecum or order requiring production of records of a bank, savings and
loan, or credit company shall not be enforceable unless also served on person whose
records are sought (C.C.P. Art. 1469.2).

G) Corporations or other entities: When a corporation or other entity (partnership,
association or governmental agency) is deposed, it has a duty to provide deponents who
are qualified to answer the questions posed (C.C.P. Art. 1442). The notice should name
the corporation, association, partnership or governmental agency as the deponent and
designate the matters on which exam is requested. The organization shall designat e the
appropriate officers or person to testify.

III. PRE-TRIAL PROCEDURE
A) Pre-trial conference (C.C.P. Art. 1551): Trial court judge may order a pre-trial
conference to consider any of the following:
1) Simplification of issues, including eliminating frivolous claims and defenses;
2) The necessity or desirability of amendments to pleadings;
3) What material facts and issues are or are not in good faith controverted;
4) Proof and stipulations regarding the authenticity of documents, and advance rulings on
the admissibility of evidence;
5) Limits on the use of expert testimony;
6) Control and scheduling of discovery;
7) Identification of witnesses, documents, and exhibits; and
8) Any other matters aiding the disposition of the action.

B) The court shall render an order regarding the results of the conference which will
control the subsequent course of action.

C) If a party's attorney fails to obey the order, or attend the pre-trial conference prepared
to participate and participate in good faith, the court may sua sponte make orders as are
just. The court may also sanction the attorney.
MOTION FOR JUDGMENT ON OFFER OF JUDGMENT (C.C.P. Art. 970)
A) Thirty days or more before the trial a party may make a written offer to settle all
claims with an adverse party without an admission of liability. If the offer is accepted,
any party may move for judgment on the offer within ten days after service. If the offer is
not accepted, it shall remain inadmissible except to determine if the offeree must pay the
offeror's expenses for not accepting the offer.

B) If the final judgment obtained by the plaintiff - offeree is at least 25% less than the
amount of the offer of judgment made by the defendant - offeror or if the final judgment
obtained against the defendant - offeree is at least 25% greater than the amount of the
offer of judgment made by the plaintiff-offeror, the offeree must pay the offeror's costs,
exclusive of attorney fees, incurred after the offer was made, as fixed by the Court. When
comparing the offer of judgment to the final judgment, include any additur or remittitur,
but do not include costs, interest, attorney fees or any amounts awarded pursuant to
statute or rule, unless such amount was expressly included in the offer.

C) A judgment granted on a motion for judgment on an offer of judgment is a final
judgment when signed by the judge; however, an appeal cannot be taken by a party who
has consented to the judgment.

IV: TRIALS (C.C.P. Arts. 1561-2031)
A) Consolidation of Trials: Cases may be consolidated when there are common issues of
law and fact involved in each case (C.C.P. Art. 1561). Contradictory hearing required.
Cases will not be consolidated if it would: 1) Cause jury confusion; 2) Prevent a fair and
impartial trial; 3) Give one party an undue advantage; or 4) Prejudice the rights of any
party.

B) Separate Trials: The court may order separate trials on the issues of liability and
damages. With consent of parties, judge may hold prior trial on issue of insurance
coverage (decided by judge alone-even injury cases) (C.C.P. Art. 1562).

C) Priority to Parties: Priority to parties 70 years old who present medical documentation
that they will not survive beyond 6 months (C.C.P. Art. 1573).

D) Continuances (C.C.P. 1601-16q5)
1) Discretionary Grounds: The court may grant if there is good ground therefor.
2) Preemptory Grounds: The court shall grant if: a) The party is unable, with due
diligence, to obtain material evidence; or b) A material witness has absented himself
without the contrivance of the party requesting the continuance. An adverse party can
prevent a continuance on this ground by requiring the party requesting the continuance to
disclose under oath the expected testimony of the absent witness and, if the adverse party
admits the witness would so testify, the case will proceed to trial.
E) Order: 1) Plaintiff's opening statement, then defendant's; 2) Plaintiff's evidence, then
defendant's evidence; 3) Plaintiff's rebuttal evidence; 4) Plaintiff's closing argument, then
defendant's; 5) Plaintiff's rebuttal. Note: Court may alter the order.

F) No "formal exceptions" to judge's ruling are necessary. Voice objection to preserve
matter for appeal. At the party's request the court may allow excluded evidence to be
offered subject to cross-examination: (1) on the record during a recess or such other time
the court designates; or (2) by deposition within thirty (30) days of exclusion of the
evidence or the completion of the trial or hearing, whichever is later. Proffer evidence
held inadmissible (C.C.P. Arts. 1635, 1636).

G) Dismissal (voluntary and involuntary)
1) Voluntary Dismissal: A plaintiff may obtain voluntary dismissal without prejudice
prior to any appearance of record by defendant; following any appearance, the court ma y
decline to grant dismissal except with prejudice (C.C.P. Art. 1671).
2) Involuntary Dismissal: a) Involuntary dismissal may be granted if plaintiff fails to
appear for trial (C.C.P. Art. 1672). However, if it is claimed that there is a pending
settlement, either party may reinstate the suit within 60 days of receipt of the notice of
dismissal; b) In an action tried by the court without a jury any party may move for
involuntary dismissal after close of plaintiff's case on the ground that upon the facts and
law, plaintiff has shown no right to relief; c) A judgment dismissing an action without
prejudice shall be rendered as to a defendant for whom service has not been requested
within ninety days of the commencement of the action upon contradictory motion o f any
party or upon the court's own motion unless good cause is shown why service could not
be requested. (C.C.P. Art. 1672(C)). For this defendant, interruption of prescription is
considered never to have occurred even though failure to timely request ser vice of
citation was due to bad faith. Interruption of prescription for all other defendants shall
continue.

V: JURY TRIALS
A) Right to trial by jury: There is a right to trial by jury in all cases except the following:
1) Cases where the amount of no individual petitioner's cause exceeds $50,000 exclusive
of interest and costs;
2) Suits on promissory notes where no forgery, fraud, error, or failure of consideration is
claimed;
3) Summary, executory, probate, partition, mandamus, habeas corpus, quo warra nto,
injunction, concursus, workers' compensation, emancipation, tutorship, interdiction,
curatorship, legitimacy, filiation, annulment of marriage, or divorce proceedings;
4) Custody, visitation, alimony or child support proceedings (C.C.P. Art. 1732);
5) A proceeding to review an action by an administrative or municipal body;
6) Admiralty or general maritime claim brought under a "saving to suitors" clause.

B) Either side may request a jury: This request must be made within 10 days of the filing
of the pleadings that raise an issue triable by a jury (or the granting of another party's
motion to withdraw a jury demand). A bond or cash deposit must be filed in the amount
and at the time set by the court. A party may request jury trial on only particular iss ues
(C.C.P. Arts. 1733, 1734, and 1735). Review of a denial of jury trial is by supervisory
writ, or, if irreparable injury is present, by appeal of interlocutory judgment.

C) Challenges
1) Peremptory challenges: a) If trial by jury of twelve, each side has six peremptory
challenges and up to four additional challenges if multiple parties; b) If trial is by jury of
six, each side has three peremptory challenges and up to two additional challenges if
multiple parties (C.C.P. Art. 1764).
2) Challenges for Cause: When a juror lacks legal qualification (18 years old, resident of
Louisiana and U.S., can read and write and no felony conviction); has formed an opinion
or is otherwise not impartial; when relations between juror and party or attorney would
influence juror; when juror has been on jury hearing same or similar case; or where juror
"takes the Fifth" on voir dire C.C.P. Art. 1765).
3) Time and method: After voir dire, court may excuse juror, then either party may
challenge for cause, then parties alternate declaring a peremptory challenge, which is
made in side bar conference out of presence of prospective jurors. After entire jury has
been accepted and sworn, no party may challenge peremptorily (C.C.P. Art. 1766).
4) After jury sworn, a juror may be challenged for cause by either side or be excused by
court for cause by consent of both sides (C.C.P. Art. 1767). Challenges for cause may be
exercised up to the taking of evidence.

D) Procedure: Judge may not comment on the facts in the presence of the jury but may
instruct the jury during the trial, and must instruct the jury after the trial, on the law. A
party may file written requests for jury instructions. The court must reduce the
instructions and charges to writing and further instruct the jury that it may take or have
sent to it a copy of the written instructions and charges and any object or document
received in evidence when a physical examination is required to enable the jury to reach
its verdict. Jurors may take notes and use them during jury deliberations. Juror notes will
not be preserved for review on appeal and shall be destroyed immediately upon the return
of the verdict. If the jury wants to review testimony or other evidence, it may be read to
or reviewed by them in courtroom after notice to parties (C.C.P. Arts. 1791-1794).

E) Jury size: Juries are usually composed of twelve people and nine are needed for
verdict. (If six jurors, five are needed for a verdict C.C.P. Art. 1797). The parties may
stipulate for the lesser number of jurors. The parties may also stipulate that if one or more
jurors die or become disqualified, the remaining jurors can decide the case and, if so, the
number of jurors who must concur for a verdict.

F) Directed Verdicts: May be made by motion at the close of the other side's case. The
motion must contain a statement of the grounds for making such motion. If the motion is
denied, the movant may proceed with his case. Denial does not preclude subsequent
granting of JNOV on the same ground. Standard for granting: The facts and inferences
are so overwhelmingly in favor of the moving party that reasonable persons could not
reach a contrary verdict.
G) Judgment Notwithstanding The Verdict (JNOV): Must be filed within seven days,
exclusive of holidays, after signing of judgment or mailing or service of notice of signing
of judgment; if there is no verdict, written seven days of jury discharge. Judge makes
independent, de novo, assessment.
1) Standard for granting: After considering all the evidence in the light most favorable to
the non-moving party, if the facts and inferences so strongly and overwhelmingly favor
one party that reasonable persons could not reach a contrary result, the court should grant
the motion. However, if there is substantial evidence of such qua lity and weight that
reasonable persons might reach a different conclusion, the motion should be denied.
2) Court’s options on motion: The court may let the verdict stand, grant the JNOV or
order new trial. If granted, the party whose verdict is set aside has seven days to request a
new trial. JNOV can be granted on liability, damages or both.

H) Remittitur and Additur: Alternative to motion for a new trial, on issue of quantum,
when verdict clearly contrary to weight of evidence and a new trial could be granted on
that basis alone and quantum is clearly separable from the other issues. The judge
requests plaintiff or defendant to consent to the charge as an alternative to granting a new
trial. 1) Court must believe that new trial should be granted; 2) Party entitled to new trial
must agree.

I) Special Verdicts (C.C.P. Art. 1812): Court may submit written questions to jury
susceptible of categorical or brief answer, or alternative findings. 1) Any issue of fact not
included in submission to jury is waived by parties; 2) In cases to recover damages for
injury, death, or loss, the court may submit written questions inquiring as to: a) Whether
the defendant is at fault; b) Whether that fault was the legal cause of the damages; c) The
degree of such fault expressed in a percentage; d) Same questions may be posed with
respect to non-parties; e) Same questions (substitute "negligence" for "fault") may be
posed with respect to party claiming damages; f) Finally, the total damages, expressed in
dollars.

J) General verdict with answer to interrogatories: Court may submit written
interrogatories along with general verdict forms on one or more issues of fact necessary
to a verdict (C.C.P. Art. 1813).
1) If the verdict and answers are harmonious: The court enters judgment upon the verdict
and the answers.
2) If answers mutually consistent but one or more is inconsistent with general verdict
The court may enter judgment in accordance with answers, not the verdict, or make jury
reconsider, or order a new trial.
3) If answers inconsistent and one or more is inconsistent with the general verdict The
court may reconsider answers or order a new trial (C.C.P. Art. 1813 (E)).
4) Case holds that C.C.P. Art. 1813 (E) applies also to special verdicts.

VI: JUDGMENTS AND POST-JUDGMENT ACTIONS
A) Interlocutory judgments: Does not determine the merits. Appeal may only be taken
from an interlocutory judgment if irreparable injury can result from granting the
judgment. Otherwise, seek a supervisory writ.
B) Final judgments:
1) Must be signed by the judge. Unless the judgment is signed at trial and all parties are
present, clerk must mail the notice of signing of judgment to all parties. The notice of
signing of judgment must be served on the defendant if it was a default judgment and
defendant was not served personally or was served through the secretary of state, by
personal of domiciliary service or on the secretary of state, if the defendant was originally
served through the secretary of state. Appeals may be taken from a final judgment
(C.C.P. Arts. 1911, 1913).

2) A final judgment may be amended by the trial court at any time to correct errors of
calculation or to alter the phraseology but not the substance (C.C.P. Art. 1951).

3) Partial judgments (C.C.P. Art. 1915):
a) Final judgments may be rendered by the court even though the successful party is not
granted all the relief prayed for or all the issues have not been adjudicated when the
court: 1) Dismisses the suit as to less than all the parties; 2) Grants a motion for judgment
on the pleadings; 3) Grants a motion for summary judgment; 4) Signs a judgment on
either the principal or incidental demand, when the two have been tried separately; or 5)
Signs a judgment on the issue of liability when that issue has been tried separately by the
court, or when, in a jury trial, the issue of liability has been tried before a jury and the
issue of damages is to be tried before a different jury.

Note: A judgment granting partial summary judgment or a partial exception of no cause
of action, whether in the main or incidental demand, is not a final judgment unless the
parties agree or the court designates it as such after determining there is no just reason for
delay.

b) Effects: 1) When the court renders a partial judgment or partial summary judgment, or
sustains an exception in part, as to less than all the parties to the suit, the judgment shall
not constitute a final judgment unless specifically agreed to by the parties or unless
designated as a final judgment by the court after an express determination that there is no
just reason for delay. 2) In the absence of such a determination or designation, any order
adjudicating fewer than all claims or rights/liabilities of fewer than all the parties shall
not constitute a final judgment for purposes of an immediate appeal. This order may be
revised any time prior to rendition of judgment adjudicating all claims of all the parties.

c) If an appeal is taken from a partial judgment, the trial court shall retain jurisdiction to
adjudicate the remaining issues in the case.

4) Findings of Fact and Reasons for Judgment (C.C.P. Art. 1917): In all appealable
contested cases, other than jury trials, the court shall issue written findings of fact and
reasons for judgment if requested by a party within ten days of signing of judgment. In
non-jury personal injury cases, the court shall issue findings of fact, but not reasons for
judgment, whether or not requested by a party to do so.
C) General Verdict And Special Verdict: When a jury returns a general verdict, judge
must sign judgment within 3 days exclusive of holidays. If jury returns a special verdict,
judge may take it under advisement (C.C.P. Art.1916).

D) Declaratory Judgments: A type of final judgment. These may be used for purposes of
determining rights before a contract has actually been breached. A declaratory judgment
may not prejudice persons not made parties to the proceeding.

E) Motion for a new trial: May be granted on contradictory motion of party or court on its
own motion, as to all or any parties and on all or part of the issues or for re-argument
only.
1) Grounds are: (a) a verdict clearly contrary to the law and evidence; (b) the discovery
of new evidence which could not have been discovered with due diligence before or
during trial; or (c) when a juror was bribed or compromised.
2) Filing: Must file within 7 days, excluding holidays, from signing of judgment or
mailing or service of notice of signing of judgment. 3 days for City or Parish courts.

F) Action of nullity.
1) Annulment for vices of form (C.C.P. Art. 2002-2003): A final judgment shall be
annulled for vices of form at any time if rendered against an incompetent not represented
as required by law, against one not properly served, against one who has not waived an
objection to jurisdiction, against one whom a valid judgment of default has not been
taken, or if the judgment was rendered by the court lacking subject matter jurisdiction.
Annulment for vices of form may be brought at any time and may be asserted co llaterally
(e.g. on appeal). A defendant who voluntarily acquiesced in the judgment or who was in
the parish at the time of its execution and did not attempt to enjoin execution cannot
annul the judgment for vices of form.
2) Annulment for vices of substance: A final judgment obtained by fraud or ill practices
may be annulled. A suit to annul for vices of substance must be brought within one year
of discovery (or, if later from denial of motion for new trial). Must be asserted in a direct
action, not collaterally.
3) Proper court: Action for nullity is brought in trial court where judgment rendered.
(C.C.P. Art. 2006).

G) Appeals
1) An appeal may be taken from a final judgment whether rendered after hearing or by
default, from an interlocutory judgment which may cause irreparable injury, or from a
judgment reformed in accord with a remittitur or additur (in which case the court of
appeal may consider the reasonableness of the underlying jury verdict) (C.C.P. Art.
2083).
2) Non-appealable judgments or orders (e.g. interlocutory orders) may be reviewed
under the appellate court's supervisory writ procedure.
3) An appeal cannot be taken by a party who confessed to judgment in the trial court or
who voluntarily acquiesced in the judgment.
4) Scope of Review- May review both the law and facts in civil matters (only the law in
criminal matters). Fact findings, whether by judge or jury will not be disturbed unless
there is manifest error. Law findings will be reviewed by determining whether they were
correct or incorrect.

Courts of Appeal: Permit appeal as of right in any civil matter to the appropriate Circuit
Court of Appeal. Courts of appeal may review and decide questions of law and questions
of fact.

Supreme Court: Discretionary Appeals and Appeals of Right (La. Const. Art. 5 Section
5).
1) Supervisory Jurisdiction- over all other courts, discretionary.
2) Original Jurisdiction- disciplinary proceedings against members of the bar.
3) Appeal of Right- available if: a) A law or ordinance has been declared
unconstitutional, or b) the defendant has been sentenced to death.
4) Discretionary Appeal- from any decision of state court of appeal.
5) Procedure: a) Writ of Certiorari (or review) is an application to review a judgment of
a court of appeal or an objection to a candidacy or election contest; must be filed within
30 days of mailing of notice of judgment and opinion by court of appeal or within 30
days of mailing of notice of denial of a timely filed application for rehearing to the court
of appeal. (For election contest cases, must file application within 48 hours after court of
appeals renders judgment.)
b) Supervisory and Original Writs is an application based on the supreme court's
constitutional authority and directed at reviewing or staying the action or inaction of a
trial court. Must first be filed in court of appeal within reasonable time set by the trial
court, not to exceed 30 days from the date of the ruling at issue.
6) Certified Questions from Louisiana Courts of Appeal and federal courts.

H) Devolutive Appeals:
1) Result of taking- if this type of appeal is taken, there may be execution of the judgment
during the time the appeal is pending.
2) Time Limit- This appeal must be taken within 60 days of when: a) The time for filing a
motion for new trial or JNOV has elapsed (7 days exclusive); or b) The denial of a timely
motion for a new trial or JNOV is entered; c) Delay commences after court acts upon last
post-judgment motion (C.C.P. Art. 2087); d) The time limit is interrupted for all parties
upon the filing of a notice of removal in a federal district court and commences anew on
the date the proceeding is remanded.
3) No requirement of bond (as there is for the suspensive appeal).
4) An order of appeal is premature if granted before the court disposes of all timely filed
motions for new trial or JNOV. The order becomes effective upon the denial of such
motions.

I) Suspensive Appeals:
1) Result of taking- this type of appeal will suspend the execution ofjudgment during the
time the appeal is pending.
2) Time Limit- the appeal must be taken within 30 days of when: a) The time for filing a
motion for a new trial or JNOV has elapsed; or b) The denial of a timely motion for a
new trial or JNOV is entered (C.C.P. Art. 2123). c) The time limit is interrupted for all
parties upon the filing of a notice of removal in a federal district court and commences
anew on the date the proceeding is remanded.
3) An order of appeal is premature if granted before the court disposes of all timely filed
motions for new trial or JNOV. The order becomes effective upon the denial of such
motions.
4) Bond: a) Where the judgment is for a sum of money, security shall be equal to the
amount of the judgment including interest until the security is furnished, exclusive of
costs; b) Where the judgment distributes a fund held in the court's registry, the security
must only cover costs; c) In all other cases, the court shall fix security sufficient to assure
satisfaction of the judgment together with damages for the dela y resulting from the
appeal; d) When surety bond is used, for good cause shown court may order bond in
amount up to 150% of judgment; e) If security is not posted within the time allowed, it
will be considered a devolutive appeal.
5) Only suspensive appeals exist in divorce cases, but only devolutive appeals in custody
and alimony cases (C.C.P. Arts. 3942 and 3943).

J) Method of Appealing
1) An appeal is taken by obtaining an order from the trial court within tile delay allowed
upon oral motion in open court, written motion or petition. The order of appeal shall state
the return date and the amount of security (if suspensive appeal). The clerk then mails a
notice of appeal to all parties and a notice of the estimated costs for preparing the record
to the appellant by certified mail. Appellant must pay the costs within 20 days of the
mailing of notice or the trial judge may dismiss the appeal.

2) Return day: 30 days from the date estimated costs are paid, if no testimony is to be
transcribed; or 45 days from the date such costs are paid, if testimony is to be transcribed,
unless the trial court fixes a lesser period. Only one extension is allowed and it cannot
exceed 30 days.

K) Answer to appeal
1) Appellee need not answer an appeal unless he desires that the judgment be modified,
revised, or reversed in part, or unless he demands damages against the appellant.
2) Delay is 15 days from later of return day or lodging of appeal (C.C.P. Art. 2133).

L) Trial court retains jurisdiction to do the following: Correct any misstatement in the
record, test the solvency of the surety on the appeal bond (C.C.P. Art. 5123), give effect
to its judgment (unless suspended), impose the penalties for failing to pay costs of
preparation of record, and tax costs and expert witness fees (C.C.P. Art. 2088).

M) The appellate court shall render any judgment which is just, legal, and proper upon
the record on appeal (C.C.P. Art. 2164).

N) Dismissal for irregularities: An appeal will not be dismissed because the record is
missing, incomplete or for irregularities which are imputable to the appellant. A motion
to dismiss the appeal must be filed within 3 days, exclusive of holdings, of the return day
or lodging, whichever is later. Note: This includes a late filed suspensive appeal bond.
The appellee must raise untimeliness in a motion to dismiss within the 3 day period in
order to convert the appeal to a devolutive appeal.

O) Other grounds: Consent of the parties; lack of appellate court jurisdiction; no right to
appeal; or abandonment.

P) Rehearing; Court of Appeal Judgment; Finality
1) Application for rehearing - apply within 14 days of the mailing of the notice of
judgment and opinion by the court of appeal. Within 30 days of the mailing of notice
judgment and opinion of the court of appeal a party may apply to the supreme court for a
writ of certiorari. Court of appeal judgment is final if neither an application for rehearing
nor an application for writ of certiorari to supreme court is timely filed.

2) If any party timely files a rehearing application, the time within which all other parties
may apply to the supreme court for a writ of certiorari is extended to 30 days after
mailing the notice of denial of rehearing.

3) If a timely application for rehearing is denied, the judgment becomes final unless an
application for writ of certiorari to supreme court is filed within 30 days of the mailing of
notice of denial of rehearing.

4) If a timely application for certiorari to the supreme court is denied, the judgment
becomes final upon such denial. The supreme court may stay execution of the judgment
of the court of appeal pending application for relief from the United States Supreme
Court.

Q) Rehearing; Supreme Court Judgment; Finality
1) Application for rehearing - apply within 14 days of the mailing of notice of judgment.
2) The judgment of the supreme court becomes final upon expiration of the time to apply
for rehearing if no application for rehearing was filed or upon denial of a timely filed
application for rehearing. The supreme court may stay execution of its judgment pending
application for relief from the United States Supreme Court.

R) Appeals relating to injunctive relief: 1) No appeal allowed from a temporary
restraining order; 2) Appeal from an order regarding a preliminary injunction must be
filed within 15 days from the order; 3) No suspension of a preliminary or final injunction
order unless the court in its discretion so orders.

								
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