Louisiana Civil Procedure Bar Exam
Questions and Answers
(2) Assume that you can execute on the judgment. What steps, if any, can you take to
determine what other assets Debtor possesses and to otherwise execute on the judgment?
Explain fully describing each step in the process and explaining whether there is any
property owned by Debtor which cannot be executed upon. - ANS-(2) File and serve a
motion for examination of judgment debtor (judgment debtor rule) on Debtor which will
require her to disclose her assets. The motion may request Debtor to bring her financial
books and records and the court will order her to appear in court not less than five days from
the date of service of the motion and order. The debtor must then appear and answer
questions from Client's counsel about her finances under oath. Failure to appear is
punishable as contempt and the costs associated with the exam are taxed against the
Debtor unless the court determines the exam was unnecessary.
Debtor's homestead would be exempt from seizure. This exemption is limited to $35,000 of
the value of the homestead. The debtor's automobile is also exempt up to $7,500 in equity
value of the vehicle. The automobile could be ripe for seizure subject to the process laid out
in the third paragraph of subpart (a) to the extent the NADA retail value of Debtor's
automobile exceeds $7,500. Other possible exempt property includes: property necessary to
perform one's trade or profession; personal servitude of habitation; household items;
wedding or engagement rings up to $5,000; and any federal earned income tax credit.
\(2) How should you attempt to effect service on Home Repair Company, LLC? - ANS-(2)
Since Home Repair Company, LLC has not designated an agent for service of process,
service may be made by either personally serving any manager, or if there are no managers,
on any member; or personal service on any employee of suitable age and discretion at any
place where Home Repair Company regularly conducts business; a third option, service
under the long-arm statute, does not appear to be available here since Home Repair is a
domestic company.
\(2) If one or both judgments can be challenged, please state the specific procedural method
(or methods) for contesting same. - ANS-(2) XYZ Corporation can also file a suspensive or
devolutive appeal which must be filed within 30 or 60 days, respectively, from the lapse of
the time for filing a new trial or JNOV, which, in turn, runs from the date of service of the
default judgment (here, October 25, 2008).
\(2) If there is such a motion, explain specifically what California Importer must file to support
its motion. - ANS-(2) California Importer will have to support its motion with affidavits from
affiants who are competent, attesting to facts of which they have personal knowledge and
which are admissible at trial. Here, California Importer can file and affidavit from General
Manager attesting to the fact that the company is not the alter ego of, and has no affiliation,
control or ownership interest in, foreign manufacturer. As general manager, he should be
competent to attest to such facts based on personal knowledge and which would appear to
be admissible at trial. In addition, California Importer could further support its motion with an
affidavit from counsel annexing the 1442 deposition transcript of Manufacturer which also
demonstrates that Manufacturer has no factual support to meet its burden on the affiliation
,element at trial. Such an affidavit and exhibit should easily meet the above mentioned
criteria.
\(2) In reviewing the box of documents and discovery requests, you determine that the
answers to the bulk of the interrogatories are set froth in the specific documents that are
responsive to the requests for production of documents. Does your determination provide
you with any additional option in responding to the interrogatories? Please explain. - ANS-(2)
Yes. Where answers to interrogatories can be obtained from the business records of a party,
that party can specify where in the records the answers may be found (if the burden is
substantially similar for both parties) and make the records available in lieu of answering the
interrogatories.
\(2) Is there a motion that Insurance Company may make in response to Plaintiff's objection
at trial which will permit the introduction of evidence on its defense of fraud? Briefly explain
the nature of this motion. - ANS-(2) Motion for leave to amend the answer to conform to the
evidence. When issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had been raised by the
pleadings. Here, Insurance Company may argue that plaintiff impliedly consented to trial of
the arson defense because of the assertion contained in the general denial and plaintiff's
failure to object to use of the defense prior to trial. Alternatively, if evidence is objected to at
the trial on the ground that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the presentation of the
merits will be served thereby, and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action on the merits.
\(2) Please describe the evidence that you can use to establish the facts entitling your client
to a divorce in accordance with article 102. - ANS-(2) Evidence to establish entitlement to
divorce under Article 102 includes:
- the divorce petition
- the sheriff's return of service of the petition or waiver of service
- the rule to show cause and affidavit showing 180 or 365 days of living apart have elapsed
- the sheriff's return of service of the rule or waiver of that service
- the mover's affidavit executed after the rule showing 180 or 365 days of being apart and
continued living apart and desire to be divorced.
\(3) How should the Judge rule on Plaintiff's objection and Insurance Company's motion?
Briefly explain, including a discussion of the factors upon which this decision should be
based. - ANS-(3) The Judge should probably overrule the π's objection and grant Ins. Co's
motion. The essence of the fraud defense was contained in the general denial, even though
it was not specifically labeled as an affirmative defense. As a result, π had constructive
notice of the defense and ∆'s probably use of arson evidence at trial. *The failure to use
specific terminology does not prevent consideration of an affirmative defense.* ∆ would
argue that the allegation in the answer that the fire was caused by π's "intentional act"
provides for fair and adequate notice of the defense, because the involvement of any
intentional act by the π in the destruction of his home implicitly and necessarily constitutes
fraud in attempting to collect insurance proceeds for such a loss.
\(a) H and W come to you and seek your help in preventing Lumber Co from continuing to
cut their timber, in preventing Shingle Mill from removing the cut timber, and in insuring that
the already removed timber will not be sold by Shingle Mill and in preventing Succession
Rep from continuing to disturb H and W's quiet enjoyment of their 100 acre tract. What
proceeding(s) can you file in order to accomplish your client's desires? In order to maintain
,the proceeding(s), what must you allege and prove? - ANS-(a) A possessory action should
be filed on behalf of H&W, who must allege and prove that:
(1) they had possession at the time of the disturbance (cutting timber);
(2) they and their ancestors in title had quiet possession without interruption for more than a
year immediately prior to the disturbance;
(3) the disturbance did occur in fact or in law (i.e., recordation); and
(4) the possessory action was instituted within a year of the disturbance.
[note that title is not at issue in a possessory action]
\(b) Analyze your chances for success with the remedy you seek in the pleadings that you
have filed. - ANS-(b) The authority of a Louisiana court to exercise PJ over a non-resident
corp. under the Louisiana Long-Arm statute and constitutional principles is not always clear.
Under a long line of US Supreme Court cases, in order for the Louisiana Court to exercise
jdn over a non-resident corp., the non-resident must have (a) minimum contacts with the
state of Louisiana, and (b) the exercise of jdn by the Louisiana court must be fair - balancing
the interest of both parties to the litigation. The courts scrutinize whether the non-resident ∆
has purposefully directed his activities at residents of the forum state. Generally this test is
not satisfied where a non-resident has merely placed a product into the stream of commerce
and it finds its way into LA. In this particular instance, it does not appear that the
non-resident corp. has deliberately directed its sales efforts to LA in any significant way; it is
not licensed to do business in LA, it has never sent a salesman or serviceman to LA, and it
has never advertised directly in any local LA media. The only contact that the out-of-store
corp. has with LA in connection with the client's purchase appears to be two interstate
telephone calls and a shipment to LA via Federal Express. Despite the relative dearth of
contacts with the state of LA, it remains possible that the LA court will exercise PJ over ∆.
The ∆ has advertised in a national magazine on a prior occasion which may carry an
implication that it intends to do business on a national basis. If this is true, then it's arguably
fair to subject the ∆ to jdn in Louisiana courts. [The ∆ can reasonably expect to be hailed into
court in Louisiana.]
\(b) Assume that Adam timely files suit against Chris in West Baton Rouge Parish. What
must Chris file if he believes that suit cannot be brought against him in West Baton Rouge
Parish? When must the pleading be filed, and is West BR Parish a proper venue? - ANS-(b)
Chris must file a declinatory exception of improper venue with or before his answer, or prior
to confirmation of a default judgment. West BR is not a proper venue since suits against an
individual ∆ must be brought in the ∆'s domicile, which in this case is Evangeline Parish.
\(b) Assume that your client was served on January 9, 2011. You thereafter determine that
your client is the first defendant to be served. Would you recommend any different or
additional filing on behalf of your client? If so, please explain what you would recommend
and why you would recommend it. - ANS-(b) I would file a peremptory exception of
prescription. Because it has been over a year since the injury, the cause of action has
prescribed, unless the claim was timely filed in a court of competent jurisdiction and venue.
..Here, as discussed above, the parish in which Plaintiff filed (Orleans) was not the parish of
proper venue. The injury was sustained on January 7, 2010, and my client was served on
January 9,2011. Even if plaintiff filed before January 7, 2011, prescription is treated as never
having been interrupted, and the case should be dismissed on the exception of prescription.
\(b) Assume you now represent defendant. You read in Wall Street Journal that the surety
used by plaintiff for suspensive appeal has filed for bankruptcy and you plan to file motion to
test solvency of that surety. Do you file your motion with appellate court or with trial court? -
ANS-(b) The motion to test the sufficiency of the bond must be filed in the trial court in which
, the bond was set. The trial court set the bond in its order of appeal and the appeal was
conditioned upon the posting of adequate security. The trial court also retains jurisdiction to
test the solvency of the surety on the appeal bond after the purported perfection of the
appeal.
\(b) Briefly explain reason why you feel that the requirements for maintenance of that action
have been met. - ANS-(b) If each of the other clubs was the size of SBC, there would be
hundreds of plaintiffs. While there is no numerical threshold, the numerosity requirement
seems to be easily met. It would be impracticable to join so many members in one suit. The
typicality requirement is also easily met because Stock Purchaser's claim is primarily the
same as other club members-misrepresentation concerning the hidden commission. There
are common questions of law and fact; namely, whether the commission was disclosed and
were defendants legally required to do so. Stock Purchaser is interested in vindicating the
rights of all members of these clubs and so he should adequately protect their Interests.
Finally it would be fairly easy to define the class according to objective criteria. Meeting the
typicality, commonality and objectively ascertainable criteria requirements would each be
further enhanced if all stock-buying club members signed the same standard-form contract
which failed to disclose the hidden commission, because they were all damaged by the
same omission, evidenced by the same contract, which would also permit an objective basis
to define the class.
\(b) Explain what evidence, if any, Homeowner's counsel may submit to support her effort to
terminate the litigation. - ANS-(b) Homeowner's counsel will support the summary judgment
motion with affidavits from
(1) competent affiants,
(2) on personal knowledge and
(3) containing facts admissible at trial. Certainly the contract specifying the relationship
between Homeowner and Roofer would be admissible evidence and can be appended to the
affidavit of Homeowner, who signed it. In addition, the deposition testimony of Homeowner
attesting to lack of control over Roofer or his employees, as well as Roofer's deposition
testimony showing that Roofer was an independent contractor, can be submitted via the
affidavits of either Homeowner's Counsel or the deponents themselves. Such affidavits
would also meet the three requisites mentioned above.
\(b) H and W are fearful that Lumber Co will continue to cut the timber and Shingle Mill will
remove the cut timber during the pendency of the proceeding. What steps, if any, can you
take in order to prevent Lumber Co fro continuing to cut the trees and to prevent Shingle Mill
from removing timber and from selling the timber which was already removed? What must
you show to be successful? - ANS-(b) A Temporary Restraining Order (TRO) or preliminary
injunction should be sought to enjoin Lumber Co and Shingle Mill from cutting any more
lumber or removing it. To be successful, the party must show that H and W would suffer
irreparable injury, loss, or damage unless the other party is enjoined.
[Irreparable injury is such that cannot be compensated with money damages; argue that
trees cannot be compensated by money damages alone because of their unique, intangible,
aesthetic value. In addition, their replacement would take many years.]
\(b) If judge decided to increase the jury award, what are the procedures that Judge must
utilize in order to grant the increase? What is the legal name give to such an increase? -
ANS-(b) Quantum must be clearly separable from other issues in the case. ∆ must also
consent to additur as an alternative to a new trial. If additur is entered, then the court will
reform the jury verdict in accordance with the motion. The legal name for this increase is
additur.
Questions and Answers
(2) Assume that you can execute on the judgment. What steps, if any, can you take to
determine what other assets Debtor possesses and to otherwise execute on the judgment?
Explain fully describing each step in the process and explaining whether there is any
property owned by Debtor which cannot be executed upon. - ANS-(2) File and serve a
motion for examination of judgment debtor (judgment debtor rule) on Debtor which will
require her to disclose her assets. The motion may request Debtor to bring her financial
books and records and the court will order her to appear in court not less than five days from
the date of service of the motion and order. The debtor must then appear and answer
questions from Client's counsel about her finances under oath. Failure to appear is
punishable as contempt and the costs associated with the exam are taxed against the
Debtor unless the court determines the exam was unnecessary.
Debtor's homestead would be exempt from seizure. This exemption is limited to $35,000 of
the value of the homestead. The debtor's automobile is also exempt up to $7,500 in equity
value of the vehicle. The automobile could be ripe for seizure subject to the process laid out
in the third paragraph of subpart (a) to the extent the NADA retail value of Debtor's
automobile exceeds $7,500. Other possible exempt property includes: property necessary to
perform one's trade or profession; personal servitude of habitation; household items;
wedding or engagement rings up to $5,000; and any federal earned income tax credit.
\(2) How should you attempt to effect service on Home Repair Company, LLC? - ANS-(2)
Since Home Repair Company, LLC has not designated an agent for service of process,
service may be made by either personally serving any manager, or if there are no managers,
on any member; or personal service on any employee of suitable age and discretion at any
place where Home Repair Company regularly conducts business; a third option, service
under the long-arm statute, does not appear to be available here since Home Repair is a
domestic company.
\(2) If one or both judgments can be challenged, please state the specific procedural method
(or methods) for contesting same. - ANS-(2) XYZ Corporation can also file a suspensive or
devolutive appeal which must be filed within 30 or 60 days, respectively, from the lapse of
the time for filing a new trial or JNOV, which, in turn, runs from the date of service of the
default judgment (here, October 25, 2008).
\(2) If there is such a motion, explain specifically what California Importer must file to support
its motion. - ANS-(2) California Importer will have to support its motion with affidavits from
affiants who are competent, attesting to facts of which they have personal knowledge and
which are admissible at trial. Here, California Importer can file and affidavit from General
Manager attesting to the fact that the company is not the alter ego of, and has no affiliation,
control or ownership interest in, foreign manufacturer. As general manager, he should be
competent to attest to such facts based on personal knowledge and which would appear to
be admissible at trial. In addition, California Importer could further support its motion with an
affidavit from counsel annexing the 1442 deposition transcript of Manufacturer which also
demonstrates that Manufacturer has no factual support to meet its burden on the affiliation
,element at trial. Such an affidavit and exhibit should easily meet the above mentioned
criteria.
\(2) In reviewing the box of documents and discovery requests, you determine that the
answers to the bulk of the interrogatories are set froth in the specific documents that are
responsive to the requests for production of documents. Does your determination provide
you with any additional option in responding to the interrogatories? Please explain. - ANS-(2)
Yes. Where answers to interrogatories can be obtained from the business records of a party,
that party can specify where in the records the answers may be found (if the burden is
substantially similar for both parties) and make the records available in lieu of answering the
interrogatories.
\(2) Is there a motion that Insurance Company may make in response to Plaintiff's objection
at trial which will permit the introduction of evidence on its defense of fraud? Briefly explain
the nature of this motion. - ANS-(2) Motion for leave to amend the answer to conform to the
evidence. When issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had been raised by the
pleadings. Here, Insurance Company may argue that plaintiff impliedly consented to trial of
the arson defense because of the assertion contained in the general denial and plaintiff's
failure to object to use of the defense prior to trial. Alternatively, if evidence is objected to at
the trial on the ground that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the presentation of the
merits will be served thereby, and the objecting party fails to satisfy the court that the
admission of such evidence would prejudice him in maintaining his action on the merits.
\(2) Please describe the evidence that you can use to establish the facts entitling your client
to a divorce in accordance with article 102. - ANS-(2) Evidence to establish entitlement to
divorce under Article 102 includes:
- the divorce petition
- the sheriff's return of service of the petition or waiver of service
- the rule to show cause and affidavit showing 180 or 365 days of living apart have elapsed
- the sheriff's return of service of the rule or waiver of that service
- the mover's affidavit executed after the rule showing 180 or 365 days of being apart and
continued living apart and desire to be divorced.
\(3) How should the Judge rule on Plaintiff's objection and Insurance Company's motion?
Briefly explain, including a discussion of the factors upon which this decision should be
based. - ANS-(3) The Judge should probably overrule the π's objection and grant Ins. Co's
motion. The essence of the fraud defense was contained in the general denial, even though
it was not specifically labeled as an affirmative defense. As a result, π had constructive
notice of the defense and ∆'s probably use of arson evidence at trial. *The failure to use
specific terminology does not prevent consideration of an affirmative defense.* ∆ would
argue that the allegation in the answer that the fire was caused by π's "intentional act"
provides for fair and adequate notice of the defense, because the involvement of any
intentional act by the π in the destruction of his home implicitly and necessarily constitutes
fraud in attempting to collect insurance proceeds for such a loss.
\(a) H and W come to you and seek your help in preventing Lumber Co from continuing to
cut their timber, in preventing Shingle Mill from removing the cut timber, and in insuring that
the already removed timber will not be sold by Shingle Mill and in preventing Succession
Rep from continuing to disturb H and W's quiet enjoyment of their 100 acre tract. What
proceeding(s) can you file in order to accomplish your client's desires? In order to maintain
,the proceeding(s), what must you allege and prove? - ANS-(a) A possessory action should
be filed on behalf of H&W, who must allege and prove that:
(1) they had possession at the time of the disturbance (cutting timber);
(2) they and their ancestors in title had quiet possession without interruption for more than a
year immediately prior to the disturbance;
(3) the disturbance did occur in fact or in law (i.e., recordation); and
(4) the possessory action was instituted within a year of the disturbance.
[note that title is not at issue in a possessory action]
\(b) Analyze your chances for success with the remedy you seek in the pleadings that you
have filed. - ANS-(b) The authority of a Louisiana court to exercise PJ over a non-resident
corp. under the Louisiana Long-Arm statute and constitutional principles is not always clear.
Under a long line of US Supreme Court cases, in order for the Louisiana Court to exercise
jdn over a non-resident corp., the non-resident must have (a) minimum contacts with the
state of Louisiana, and (b) the exercise of jdn by the Louisiana court must be fair - balancing
the interest of both parties to the litigation. The courts scrutinize whether the non-resident ∆
has purposefully directed his activities at residents of the forum state. Generally this test is
not satisfied where a non-resident has merely placed a product into the stream of commerce
and it finds its way into LA. In this particular instance, it does not appear that the
non-resident corp. has deliberately directed its sales efforts to LA in any significant way; it is
not licensed to do business in LA, it has never sent a salesman or serviceman to LA, and it
has never advertised directly in any local LA media. The only contact that the out-of-store
corp. has with LA in connection with the client's purchase appears to be two interstate
telephone calls and a shipment to LA via Federal Express. Despite the relative dearth of
contacts with the state of LA, it remains possible that the LA court will exercise PJ over ∆.
The ∆ has advertised in a national magazine on a prior occasion which may carry an
implication that it intends to do business on a national basis. If this is true, then it's arguably
fair to subject the ∆ to jdn in Louisiana courts. [The ∆ can reasonably expect to be hailed into
court in Louisiana.]
\(b) Assume that Adam timely files suit against Chris in West Baton Rouge Parish. What
must Chris file if he believes that suit cannot be brought against him in West Baton Rouge
Parish? When must the pleading be filed, and is West BR Parish a proper venue? - ANS-(b)
Chris must file a declinatory exception of improper venue with or before his answer, or prior
to confirmation of a default judgment. West BR is not a proper venue since suits against an
individual ∆ must be brought in the ∆'s domicile, which in this case is Evangeline Parish.
\(b) Assume that your client was served on January 9, 2011. You thereafter determine that
your client is the first defendant to be served. Would you recommend any different or
additional filing on behalf of your client? If so, please explain what you would recommend
and why you would recommend it. - ANS-(b) I would file a peremptory exception of
prescription. Because it has been over a year since the injury, the cause of action has
prescribed, unless the claim was timely filed in a court of competent jurisdiction and venue.
..Here, as discussed above, the parish in which Plaintiff filed (Orleans) was not the parish of
proper venue. The injury was sustained on January 7, 2010, and my client was served on
January 9,2011. Even if plaintiff filed before January 7, 2011, prescription is treated as never
having been interrupted, and the case should be dismissed on the exception of prescription.
\(b) Assume you now represent defendant. You read in Wall Street Journal that the surety
used by plaintiff for suspensive appeal has filed for bankruptcy and you plan to file motion to
test solvency of that surety. Do you file your motion with appellate court or with trial court? -
ANS-(b) The motion to test the sufficiency of the bond must be filed in the trial court in which
, the bond was set. The trial court set the bond in its order of appeal and the appeal was
conditioned upon the posting of adequate security. The trial court also retains jurisdiction to
test the solvency of the surety on the appeal bond after the purported perfection of the
appeal.
\(b) Briefly explain reason why you feel that the requirements for maintenance of that action
have been met. - ANS-(b) If each of the other clubs was the size of SBC, there would be
hundreds of plaintiffs. While there is no numerical threshold, the numerosity requirement
seems to be easily met. It would be impracticable to join so many members in one suit. The
typicality requirement is also easily met because Stock Purchaser's claim is primarily the
same as other club members-misrepresentation concerning the hidden commission. There
are common questions of law and fact; namely, whether the commission was disclosed and
were defendants legally required to do so. Stock Purchaser is interested in vindicating the
rights of all members of these clubs and so he should adequately protect their Interests.
Finally it would be fairly easy to define the class according to objective criteria. Meeting the
typicality, commonality and objectively ascertainable criteria requirements would each be
further enhanced if all stock-buying club members signed the same standard-form contract
which failed to disclose the hidden commission, because they were all damaged by the
same omission, evidenced by the same contract, which would also permit an objective basis
to define the class.
\(b) Explain what evidence, if any, Homeowner's counsel may submit to support her effort to
terminate the litigation. - ANS-(b) Homeowner's counsel will support the summary judgment
motion with affidavits from
(1) competent affiants,
(2) on personal knowledge and
(3) containing facts admissible at trial. Certainly the contract specifying the relationship
between Homeowner and Roofer would be admissible evidence and can be appended to the
affidavit of Homeowner, who signed it. In addition, the deposition testimony of Homeowner
attesting to lack of control over Roofer or his employees, as well as Roofer's deposition
testimony showing that Roofer was an independent contractor, can be submitted via the
affidavits of either Homeowner's Counsel or the deponents themselves. Such affidavits
would also meet the three requisites mentioned above.
\(b) H and W are fearful that Lumber Co will continue to cut the timber and Shingle Mill will
remove the cut timber during the pendency of the proceeding. What steps, if any, can you
take in order to prevent Lumber Co fro continuing to cut the trees and to prevent Shingle Mill
from removing timber and from selling the timber which was already removed? What must
you show to be successful? - ANS-(b) A Temporary Restraining Order (TRO) or preliminary
injunction should be sought to enjoin Lumber Co and Shingle Mill from cutting any more
lumber or removing it. To be successful, the party must show that H and W would suffer
irreparable injury, loss, or damage unless the other party is enjoined.
[Irreparable injury is such that cannot be compensated with money damages; argue that
trees cannot be compensated by money damages alone because of their unique, intangible,
aesthetic value. In addition, their replacement would take many years.]
\(b) If judge decided to increase the jury award, what are the procedures that Judge must
utilize in order to grant the increase? What is the legal name give to such an increase? -
ANS-(b) Quantum must be clearly separable from other issues in the case. ∆ must also
consent to additur as an alternative to a new trial. If additur is entered, then the court will
reform the jury verdict in accordance with the motion. The legal name for this increase is
additur.
