Civ Pro II 2nd Assesment
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Apr 3, 2024
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Louisiana Civil Procedure II Spring 2024 - Professor M. Harris
Assessment 2
March 20, 2024
Instructions
: Explanations require short and complete sentences (NO One Word
Answers), please respond after each question in Times New Roman Font 12 pt. Insert
your name onto the Assessment. This assessment should take approximately 45
minutes to complete. Please submit your assessment submission into the drop box setup in TWEN by 9:00
pm CST on Thursday March 21, 2024
.
Name: __Baron Ammons II_______________________________
1.
Explain what is a petitory?
The petitory action is one brought by a person who claims the ownership of, but who does not have the right to possess, immovable property or a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership. 2.
Explain what is possessory action?
The possessory action is one brought by the possessor or precarious possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been
disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.
Plaintiff claims to be the sole owner of a tract of land in Cameron Parish with 100 acres of
forest containing trees for timber harvest. Plaintiff read in a local newspaper that
Defendant, who lives in Bienville Parish, has advertised to sell the land, cash only and
without any warranty of title. Plaintiff filed a lawsuit against Defendant in Cameron Parish
seeking to prevent any sale of the land by Defendant. 3.
What additional action should Plaintiff take, and where, to protect Plaintiff’s interest in the land from future sales by Defendant? Explain
In order to file a notice of lis pendens in the public records of Cameron Parish where the property
is located, the plaintiff should follow the requirements outlined in La. Code Civ. Proc. Ann. Art. 3751 and 3752. The notice must be executed by the recording party or counsel of record for such
party, disclose the name of the person against whom it is to be effective, and include the filing court name, title, docket number, filing date, object, and property description of the affected property. The lis pendens must be filed in the Mortgage Recorder's office in the parish where the property is located. Recorded lis pendens are effective for 10 years from the date of filing and may be reinscribed. Reinscripted filings are effective for five years from the notice reinscription date . In addition to filing a notice of lis pendens, the plaintiff should consider filing an action for
quiet title in Cameron Parish to establish his ownership of the land. According to La. C.C.P. Art.
3654, when the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, the court shall render judgment in favor of the party who
proves better title to the immovable property or real right therein Art. 3654. Proof of title in action for declaratory judgment, concursus, expropriation, or similar proceeding. Furthermore, La. C.C. Art. 794 states that when a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles Art. 794. Determination of ownership according to prescription. Finally, La. C.C. Art. 792 states that the court shall fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.
4.
What pleadings should Plaintiff file to prevent the immediate entry and cutting of trees for timber on Plaintiff’s property and to prevent same in the future? Explain fully, including whether notice of any pleading filed must be given to the company employing the forest crew.
To prevent the immediate entry and cutting of trees for timber on the Plaintiff's property, as well as to deter such actions in the future, the Plaintiff should initiate specific legal proceedings. Firstly, they should file a Motion for Preliminary Injunction in the Cameron Parish court. This motion seeks an order from the court to restrain the Defendant from entering the property and engaging in timber harvesting activities until the lawsuit reaches a resolution. The Plaintiff must present a compelling case to the court, demonstrating that they are likely to succeed in the lawsuit, that irreparable harm would befall them without the injunction, that the balance of hardships favors their position, and that granting the injunction serves the public interest. Moreover, if there is an imminent risk of irreparable harm, the Plaintiff may also request a Temporary Restraining Order (TRO) from the court. A TRO provides immediate, temporary relief and can be granted without prior notice to the Defendant in certain exigent circumstances. This order would effectively halt any unauthorized entry and timber cutting on the property until a hearing can be held on the Motion for Preliminary Injunction. Furthermore, it is advisable for the Plaintiff to provide notice to the company employing the forest crew, particularly if there are concerns that the Defendant may proceed with timber harvesting despite legal proceedings. By informing the company of the ongoing dispute and the court's orders regarding the property, the Plaintiff can help prevent inadvertent participation in activities that could potentially exacerbate the situation. Working closely with legal counsel is crucial to ensure the proper filing and presentation of these pleadings. The Plaintiff should also gather and submit any relevant evidence or documentation supporting their request for injunctive relief. Through these measures, the Plaintiff aims to safeguard their property rights and prevent further harm pending the resolution of the lawsuit.
MUTIPLE CHOICE
Question 6 - 10:
5.
These proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities
required in ordinary proceedings are known as? A. Expedited
B. Summary
C. Executory
D. Concursus 6.
This judgment unless otherwise provided by law, a creditor may obtain a against the debtor
for any amount less than what is due on the debt after the distribution of the proceeds of the
judicial sale only if the property has been sold under the executory proceeding after
appraisal?
A. Partial
B. Deficiency C. Final
D. Summary
7.
These proceedings are those which are used to affect the seizure and sale of property,
without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced
by an authentic act importing a confession of judgment, and in other cases allowed by law
are known as? A. Writ
B. Summary
C. Motion
D. Executory 8.
Writ directing a public officer, a corporation or an officer thereof, or a limited liability
company or a member or manager thereof, to perform any of the duties. A. Seizure
B. Mandamus
C.
Habeas Corpus
D.
Quo Warranto
9.
Writ commanding a person who has another in his custody to produce him before the court
and to state the authority for the custody.
A. Seizure
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B. Mandamus
C.
Habeas Corpus
D.
Quo Warranto
10.
Writ directing an individual to show by what authority he claims or holds public office, or
office in a corporation or limited liability company, or directing a corporation or limited
liability company to show by what authority it exercises certain powers. Its purpose is to
prevent usurpation of office or of powers. A. Seizure
B. Mandamus
C.
Habeas Corpus
D.
Quo Warranto