HLS 24RS-462 REENGROSSED
2024 Regular Session
HOUSE BILL NO. 227
BY REPRESENTATIVE MUSCARELLO
(On Recommendation of the Louisiana State Law Institute)
CIVIL/PROCEDURE: Provides for continuous revisions relative to civil procedure
1 AN ACT
2To amend and reenact Code of Civil Procedure Articles 863(A), 1425(F)(1) and (2), 1436.1,
3 2163, 2298, 3136, and 3335, relative to civil procedure; to provide for continuous
4 revisions to the Code of Civil Procedure; to provide for the electronic signature of
5 pleadings; to provide for the procedure to challenge experts; to provide with respect
6 to depositions by telephone; to provide for peremptory exceptions filed in an
7 appellate court; to provide with respect to injunctions prohibiting sales; to provide
8 with respect to descriptive lists of property in lieu of inventory; to provide for notice
9 to heirs and residuary legatees; to provide for comments; and to provide for related
10 matters.
11Be it enacted by the Legislature of Louisiana:
12 Section 1. Code of Civil Procedure Articles 863(A), 1425(F)(1) and (2), 1436.1,
132163, 2298, 3136, and 3335 are hereby amended and reenacted to read as follows:
14 Art. 863. Signing of pleadings; effect
15 A. Every pleading of a party represented by an attorney shall be signed by
16 at least one attorney of record in his individual name, whose physical address and
17 email address for service of process shall be stated. A party who is not represented
18 by an attorney shall sign his pleading and state his physical address and email
19 address, if he the party has an email address, for service of process. If mail is not
20 received at the physical address for service of process, a designated mailing address
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1 shall also be provided. A party or attorney may sign a pleading by electronic
2 signature in accordance with Article 253.
3 * * *
4 Art. 1425. Experts; pretrial disclosures; scope of discovery
5 * * *
6 F.(1) Any party may file a motion for a pretrial hearing to determine A party
7 seeking to challenge whether a witness qualifies as an expert or whether the
8 methodologies employed by such the witness are reliable under Code of Evidence
9 Articles 702 through 705 of the Louisiana Code of Evidence shall file a motion for
10 a pretrial hearing. The motion shall be filed not later than sixty days prior to trial
11 and shall set forth sufficient allegations showing the necessity for these
12 determinations by the court.
13 (2) The court shall hold a contradictory hearing and shall rule on the motion
14 not later than thirty days prior to the trial. At the hearing, the court shall consider the
15 qualifications and methodologies of the proposed witness based upon the provisions
16 of Code of Evidence Articles 104(A) and 702 through 705 of the Louisiana Code of
17 Evidence. For good cause shown, the court may allow live testimony at the
18 contradictory hearing.
19 * * *
20 Comments - 2024
21 The amendment to Paragraph F of this Article makes clear that a pretrial
22 hearing is necessary to determine whether a witness qualifies as an expert or whether
23 the methodologies employed by the witness are reliable. This would change the
24 result reached by the First Circuit in Williams v. State Farm Mutual Automobile
25 Insurance Company, 322 So. 3d 795, 797 (La. App. 1 Cir. 2021), in which the court
26 held that the use of the permissive "may" did not mandate a pretrial motion to
27 challenge the qualifications of an expert.
28 * * *
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1 Art. 1436.1. Depositions by telephone
2 If agreed upon by every party to a suit an action or if ordered by the court, a
3 deposition may be taken by telephone or other remote electronic means.
4 * * *
5 Art. 2163. Peremptory exception filed in appellate court; remand if prescription or
6 peremption pleaded
7 A. The appellate court may consider the a peremptory exception filed for the
8 first time in that court, if the exception is pleaded prior to a submission of the case
9 for a decision, and if proof of the ground of the exception appears of record.
10 B. If the ground for the peremptory exception pleaded in the appellate court
11 is prescription or peremption, the plaintiff may demand that the case be remanded
12 to the trial court for trial of the exception.
13 * * *
14 Art. 2298. Injunction prohibiting sale; damages
15 A. Injunctive relief prohibiting the sheriff from proceeding with the sale of
16 property seized under a writ of fieri facias shall be granted to the judgment debtor
17 or to a third person claiming ownership of the seized property:
18 (1) When the sheriff is proceeding with the execution contrary to law;.
19 (2) When subsequent to the judgment payment has been made, or
20 compensation has taken place against the judgment, or it the judgment has been
21 otherwise extinguished. If the payment, compensation, or extinguishment is for a
22 part of the judgment, the injunction shall be granted to that extent, and the execution
23 shall continue for the amount of the excess;.
24 (3) When the judgment is for the payment of the purchase price of property
25 sold to the judgment debtor and a suit for recovery of the property has been filed by
26 an adverse claimant; or.
27 (4) When the judgment sought to be executed is absolutely null.
28 B. In the event that injunctive relief is granted to the judgment debtor or third
29 party claiming ownership of the seized property, if the court finds the seizure to be
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1 wrongful, it may allow damages. Attorney's Attorney fees for the services rendered
2 in connection with the injunction may be included as an element of the damages.
3 Comments - 2024
4 Paragraph B of this Article, the substance of which was enacted in 1981, is
5 intended to give the trial judge the discretion to award damages and attorney fees
6 where the seizure through executory process was wrongful. It is not intended to
7 require that damages and attorney fees be awarded in every case in which an
8 injunction is issued, such as when an injunction is issued because of a technical
9 deficiency or a technical error.
10 * * *
11 Art. 3136. Descriptive list of property in lieu of inventory
12 A. Whenever an inventory of succession property otherwise would be
13 required by law, the person at whose instance the inventory would be taken may file
14 with the Department of Revenue and in the succession proceeding, in lieu of an
15 inventory complying with articles Articles 3131 through 3135, a detailed, descriptive
16 list of all succession property. This list shall be sworn to and subscribed by the
17 person filing it, shall show the location of all items of succession property, and shall
18 set forth the fair market value of each item thereof at the date of the death of the
19 deceased.
20 B. The privilege of filing a descriptive list of succession property, in lieu of
21 an inventory thereof, may be exercised without judicial authority.
22 * * *
23 Art. 3335. Notice to heirs and residuary legatees
24 A. A copy of any account filed by a succession representative shall be served
25 upon each heir or residuary legatee, together with a notice that the account may be
26 homologated after the expiration of ten days from the date of service and that any
27 opposition thereto must shall be filed before homologation.
28 B. In the case of any account other than the final account, service on either
29 a resident or a nonresident may be made by ordinary mail.
30 C. In the case of a final account, service may be made by either of the
31 following:
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1 (a) (1) In accordance with the provisions of Article 1314; or.
2 (b) By (2) On either a resident or a nonresident, by certified or registered
3 mail on either a resident or nonresident or by use of a commercial courier that
4 requires a signed receipt from the addressee upon completion of delivery. The
5 certificate of the attorney for the succession representative that the notice and final
6 account were mailed sent to the heir or legatee, together with the return receipt
7 signed by the addressee, shall be filed in the succession proceeding prior to
8 homologation of the final account.
9 Comments - 2024
10 In light of the practical difficulties in the modern day of obtaining a "return
11 receipt signed by the addressee" for certified mail, this Article was revised to allow
12 for a final account to be served upon an heir or residuary legatee by a commercial
13 courier that requires a signed receipt from the addressee upon completion of
14 delivery. Moreover, service by "registered" mail was removed as an option because
15 the addressee of a parcel sent by registered mail has the ability to waive the signature
16 requirement and still receive the parcel.
17 Section 2. The Louisiana State Law Institute is hereby directed to delete Comment
18(f) of the 1960 Official Revision Comments to Code of Civil Procedure Article 2751.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 227 Reengrossed 2024 Regular Session Muscarello
Abstract: Provides for continuous revisions relative to civil procedure.
Present law (C.C.P. Art. 863) provides for the signing of pleadings and the imposition of
sanctions.
Proposed law retains present law but adds that a party or attorney may sign a pleading by
electronic signature in accordance with Article 253.
Present law (C.C.P. Art. 1425) provides that any party may file a motion for a pretrial
hearing to determine whether a witness qualifies as an expert or whether the methodologies
employed are reliable under the Code of Evidence.
Proposed law changes present law by requiring a party seeking to challenge whether a
witness qualifies as an expert or whether the methodologies employed are reliable under the
Code of Evidence to file a motion for a pretrial hearing.
Present law (C.C.P. Art. 1436.1) provides for depositions by telephone.
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Proposed law retains present law but makes minor semantic changes.
Present law (C.C.P. Art. 2163) provides that if the ground for the peremptory exception
pleaded in the appellate court is prescription, the plaintiff may demand that the case be
remanded to the trial court for trial of the exception.
Proposed law retains present law but adds peremption in addition to prescription.
Present law (C.C.P. Art. 2298) sets forth the procedure for injunctions prohibiting sales.
Proposed law retains present law but makes minor semantic changes.
Present law (C.C.P. Art. 3136) provides for the descriptive list of property in lieu of
inventory.
Proposed law retains present law but removes an outdated reference relative to the Dept. of
Revenue.
Present law (C.C.P. Art. 3335) provides that in the case of a final account, service may be
made in accordance with Article 1314 or by certified mail on either a resident or a
nonresident.
Proposed law retains present law but adds that service may be made on either a resident or
a nonresident by use of a commercial courier that requires a signed receipt from the
addressee upon completion of delivery.
(Amends C.C.P. Arts. 863(A), 1425(F)(1) and (2), 1436.1, 2163, 2298, 3136, and 3335)
Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Civil Law and
Procedure to the original bill:
1. Add technical changes.
The House Floor Amendments to the engrossed bill:
1. Make technical changes.
2. Remove proposed changes to C.C. Art. 3462 that allowed an interruption of
prescription by filing an action in a court of competent jurisdiction without the
requirement that the action also be filed in a proper venue.
3. Remove proposed changes to C.C.P. Art. 863(F) that prohibited sanctions from
being imposed with respect to an original petition that is transferred to a court of
proper venue.
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