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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