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Civil Procedure Flow Chart: Cause of Action > File Petition
> Challenge Petition (3 exceptions) > Answer >
Incidental Demand > Answer to Incidental Demand >
Amend/Supplement Petition > Subpoena > Discovery >
Pre-Trial Procedure > Trial > Judgment > Appeal.
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
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 courtís
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.
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 courtís 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 SCTís discretionary supervisory jurisdiction,
which extends to all courts, or by writ of certiorari to
review a judgment of the Court of Appeal.
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 upon 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 over 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 courtís
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 jurisdiction 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
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 filing. 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.
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 agentís 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.
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.
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.
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 community 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.
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
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.
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
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
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
E) Unless strictly personal, a cause of action can be transmitted
to heirs and legatees (C.C.P. Art.
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
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
courtís 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
documents 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 appellate court.
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
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.
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)
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
B) Parties Plaintiff
1) Actual interest in the litigation is required to be a
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
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
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 person 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 substituted 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
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
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
PART 2: ORDINARY PROCEEDINGS
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
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
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.
D) No Specific Monetary Amount: No specific monetary amount
("ad damnum clause") may be included in allegations
or prayer in an original, 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).
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
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
6) On a partnership by personal service on a partner, or
failing that, on any employee.
7) On an unincorporated association by personal service
on an agent, a managing official, or failing that, on any
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 person 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.
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 disposing
of all issues, delays for appeals have lapsed, and no timely
appeal has been taken (C.C.P. Art. 1314).
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 long¨arm 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 defendant 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).
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.
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
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
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
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
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
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).
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
B) Jurisdiction: If the court would have valid jurisdiction
over the incidental demand were it filed separately, it
will have jurisdiction over the incidental 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.
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
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).
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
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,
action 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
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
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)
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
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
B) A party objecting to discovery request may seek a protective
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
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
2) Apply to court for issuance of letters rogatory addressed
to "the appropriate authority" (name the state
3) Letters rogatory issued to the appropriate authority
in the foreign jurisdiction requesting the deponent to answer
the letters rogatory.
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
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,
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.
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
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
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 designate
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
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
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;
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
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.
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
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 may 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 of 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
service 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 warranto, 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
issues (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.
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.
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.
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 quality and weight
that reasonable persons might reach a different conclusion,
the motion should be denied.
2) Courtís 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
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
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
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
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 collaterally (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).
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
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
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
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
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
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
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
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
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
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 delay 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
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.
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