LA Civil Procedure Outline
Judgment
· Judgment of preliminary default
o What Can I do
§ File either an answer or an exception, an preemptory exception can be raised any time before judgment has been confirmed. Judgment by preliminary default takes two whole days for confirmation which in this instance would be Tuesday. If the judgment has been confirmed prematurely then one should file a motion to annul final judgment for vices of form.
· Judgment awarded for an amount that was more than prayed relief for
o What Can I do
§ Go to the parish where the relief was granted and file an action for nullity for vices of form for awarding improper judgment.
· Numbers of Jurors that can render a Verdict
o If it is 6 jurors 5 is needed to render the verdict
o If it is 12 jurors 9 is needed to render the verdict
· Number of Peremptory Challenges that can be given to each side [no reason required to use them]
o If it is 6 jurors
§ They can receive 3
· 2 additional if there is one or more party
o If it is 12 jurors
§ They can receive 6
· 4 additional if it is more than one party on either side
· When can a peremptory challenged by used
o A peremptory challenged cannot be used after the jury has been sworn in. The challenge for cause can be used up to the time evidence is taken.
§ Challenge for cause
· Lack of qualification
· Impartial or bias
· Relationship with the party
· Served on a jury with same case or same facts
· Refusal to answer a question
§ If juror is rehabilitated by the judge then you can use a peremptory challenge
· Rehabilitation of the juror can occur without the parties permission
· Who has the right to Trial by Jury
o Trial by jury is not available in a suit against a municipal body.
o The nature of the amount of the principal demand determines whether issue is triable by jury
§ It shall be filed no later than 10 days after either service of the last pleading directed to an issue triable by a jury or granting of a motion to withdraw a demand for a jury trial
o If the main demand was the city and a 3rd party the third party will receive a trial by jury and the city will not the action will be split
· What happens if the award is in adequate?
o File a motion for an additur or remitter. Can also file a motion for a new trial on the sole issue of quantum alone.
o If the judge would like to change the jury amount.
§ Quantum can be the sole issue of a new trial. The adverse party will have to give consent to the additur which is the alternative to the new trial. If the motion is granted the court will reform to the motion.
· Post Judgment Relief
o What happens the party disagrees with everything except the jury award? What relief can be sought?
§ Can file a motion for a judgment notwithstanding the verdict (JNOV) or a motion for a new trial.
· JNOV
o Must be filed in 7 days of judgment or mailing of service of notice
o JNOV is granted when
§ Facts and inferences, considered in light most favorable to the opposing party point in the favor of the moving party that a reasonable per
ourt without an express designation by the court that is an appealable final judgment.
· The appeal is to be sought after the signature and only after final judgment, no designation required
Appeals
· Anything the trial court does not award the appellee is seeking modification of judgment
o Modification of judgment can only be done by answering the appeal
§ If the appellee does not answer any request for modification should be denied because
· MUST answer the appeal if he seeks to change damages
· A trial court can act on a motion for a new trial even if the suspensive appeal is not perfected. Suspensive appeal does not divest the trial courts right to hear the opponents side of the case when timely filed a motion for new trial
· Suspensive Appeal
o Effective when both the petition and the bond are timely filed
o Must be perfected within 30 days of delay for a new trial or JNOV
§ When no new trial has been requested
· Opponent can move for a dismissal of a suspensive appeal if error is imputable
o Motion to dismiss must be filed within 3 days of return date or the record is lodged whichever is later
· If the appellee wants to receive damages for the attorney fee for frivolous claims he MUST ANSWER the appeal
