Prepared by

House Legislative Services

Louisiana House of Representatives

December 2017

Selected Legislation

from the

2017 Regular Session

HB 453 by Abramson

Last Action - Pending House Civil Law and Procedure

Would have increased the existing $25 fee as required by R.S. 35:191.2(3) for the filing of notary annual reports to $50, and would have required $25 of the fee to be distributed to and administered by the Louisiana Bar Foundation to be used for the provision of civil legal services within the state's civil justice system, in which notaries exercise their authority pursuant to R.S. 35:2 et seq.

ACT 197 (HB 115) Cromer

Adds a definition of “community enterprise”, relative to the existing laws on

alienation of movable assets of a business (C.C. Art. 2350).

Retains the existing law duty to preserve all former community property and

removes the specific provision regarding the duty to preserve and manage

prudently a former community enterprise (C.C. Art. 2369.3).

Retains existing law relative to the effect of a judgment of separation of

property when the spouses reconcile after filing for divorce but prior to

obtaining a divorce, and further provides for the effect of reconciliation on a

judgment of separation of property when the spouses have lived separate and

apart, filed for divorce, and then obtained a judgment of separation of property

(C.C. Art. 2375).

Effective August 1, 2017. (Amends C.C. Arts. 2350, 2369.3, and 2375)

ACT 198 (HB 121) Gregory Miller

Retains the existing law requirement that the independent administrator file a verified inventory or sworn descriptive list prior to closing a succession and adds the requirement that the list be "detailed".

Deletes the prior law prohibition of a successor being placed in possession of property without filing an inventory or descriptive list, and provides that the detailed descriptive list shall be sealed upon request.

Further provides that if the detailed descriptive list is sealed, a copy shall be provided to universal successors and the surviving spouse, and a court may furnish relevant information to any successor, spouse, or creditor of the estate.

Effective August 1, 2017. (Amends C.C.P. Art. 3396.18)

ACT 96 (HB 129) Davis

Increases the gross value of a decedent's property from $75,000 to $125,000 to qualify as a small succession.

Changes prior law to define a small succession as property of any value if the filing of the small succession affidavit occurs at least 20 years (reduced from 25 years) after the date of the decedent's death.

Replaces the term "commissions" with "compensation" for consistency purposes in the law, and amends prior law to provide that for successions valued at less than $75,000, the court costs shall be one-half of the costs in similar proceedings in larger successions.

Effective August 1, 2017. (Amends C.C.P. Arts. 3421 and 3422)

ACT 115 (HB 17) Terry Brown

Authorizes the disclosure of certain account information of a decedent by a securities dealer to a representative of, or attorney for, the decedent's estate upon receipt of written notice of the decedent's death and satisfactory evidence of the representative's authority to represent the estate.

Clarifies that satisfactory evidence of such a representative's authority to represent the estate may include an affidavit executed by that representative.

Effective August 1, 2017. (Adds R.S. 51:703(K))

ACT 294 (HB 137) Jenkins

Existing law provides that the request for review of a malpractice claim shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing if mailed to the division of administration by certified or registered mail only upon timely compliance with existing law. Upon receipt of any request, the division of administration shall forward a copy of the request to the board within five days of receipt.

New law retains existing law and specifies that the request for a medical review panel shall be deemed filed on the date:

1. Sent, if the request is electronically sent by facsimile transmission or other authorized means.

2. Mailed, if the request is delivered by certified or registered mail.

3. Received, if the request is delivered by any other means.

The provisions of new law address the ambiguity of electronically filed requests identified by the La. Supreme Court in the case of In re Tillman, 187 So.3d 445 (La. 2016).

Effective August 1, 2017. (Amends R.S. 40:1231.8(A)(2)(b) and 1237.2(A)(2)(b))

ACT 268 (HB 227) Shadoin

Existing law requires the court reporter to securely seal a deposition in an envelope endorsed with the title of the action and promptly send it by U.S. mail or by courier to the party at whose request the deposition was taken, who shall become the custodian of the deposition.

New law adds an alternate procedure for sealing a deposition electronically by secure electronic means and simultaneously delivering the deposition electronically to all parties to the action who have ordered a copy of the deposition, with the party at whose request the deposition was taken becoming the custodian of the deposition.

Effective August 1, 2017. (Amends C.C.P. Art. 1446(A)(1))

Act 409 (HB 244) Hilferty

Existing law (C.E. Art. 803(6)) provides a hearsay exception for records of regularly conducted business activities.

Existing law (C.E. Art. 902) provides, in part, that proof of authenticity as a condition precedent to admissibility is not required with respect to certain domestic public documents, certain foreign public documents, Acts of Congress and the La. Legislature, official publications, newspapers and periodicals, trade inscriptions, authentic and acknowledged acts, commercial paper, and certain labor reports from the La. Workforce Commission, or from any state or federal reporting agency.

New law (C.E. Art. 902(11)) adds an additional exception in the Code of Evidence to the requirement of establishing authenticity of a business record in criminal cases only, but subject to existing law and rules prescribed by the La. Supreme Court.

Further requires the proponent to provide reasonable written notice of the intent to offer the record and a reasonable opportunity for inspection.

Effective August 1, 2017. (Adds C.E. Art. 902(11))

ACT 148 (HB280) Marino

Existing law provides that when a married couple adopts a child, a petitioning party may be recorded on the child's birth certificate even if that petitioning party dies prior to the entry of the final judgment of adoption.

New law permits a step-parent filing for adoption of a child who was married to the legal parent of the child to keep the legal parent's name on the child's birth certificate even if the legal parent dies prior to the step-parent filing for adoption of the child.

Provides for retroactive application to June 1, 2016, as well as prospective application.

Effective August 1, 2017. (Amends R.S. 40:79(A)(2)(a))

ACT 59 (HB 317) Bagley

Existing law requires that an agency accepting a surrender

for adoption be issued a license by the Dept. of Children

and Family Services.

New law allows DCFS to also accept surrenders, in addition

to the agencies licensed by the department.

Effective June 3, 2017. (Amends Ch.C. Art. 1117(B))

ACT 102 (HB328) Coussan

Prior law allowed for the recovery of attorney fees and costs in an action regarding the acknowledgment of extinction of rights involving immovable property from the person who demanded or refused delivery of the acknowledgment.

New law amends prior law to provide that the losing party of a suit under prior law may be ordered to pay attorney fees and costs incurred by the prevailing party.

Effective August 1, 2017. (Amends R.S. 9:5176(D))

ACT 151 (HB 343) Franklin

Makes numerous technical corrections to reflect the changes made to Ch.C. Art. 1015 from the 2016 Regular Session relative to termination of parental rights by the victim of a sex offense.

Removes the requirement that the victim of the sex offense be the custodial parent in order to petition to terminate the rights of the perpetrator of the sex offense.

Effective June 12, 2017. (Amends Ch.C. Arts. 1004(B), (D), (F), and (I), 1035(B), 1036(C)(intro. para.), (D)(intro. para.), and (E), and 1036.2(E))

ACT 62 (HB 400) Garofalo

Relative to a request for a cancellation of a mortgage, new law adds that an act under

private signature by two authorized officers of a licensed financial institution shall be

allowed in lieu of complying with certain provisions of existing law requiring a act

executed before a notary public.

New law allows for partial cancellation of a mortgage and makes additional changes to

apply existing law to partial cancellations.

New law removes the requirement that the cancellation form provided by existing law

must be executed before a notary public and further changes the form to allow for an

act under private signature by two authorized officers of the named financial institution.

New law also provides a new form which may be used for the partial cancellation of a

mortgage.

Effective August 1, 2017. (Amends R.S. 9:5172(A)(intro. para.) and (1) and (B) and 5173;

Adds R.S. 9:5172(A)(3) and 5173.1)

Act 419 (HB 439) Zeringue

New law clarifies existing law relative to default judgments by consistently using the terms "preliminary

default" and "final default judgment" throughout the various codal and statutory provisions.

New law replaces the prior law term "curator ad hoc" with "an attorney appointed by the court" and

"an attorney appointed to represent the absentee defendant" in accordance with C.C.P. Art. 5091.

New law (C.C.P. Art. 74.3.1) provides that a person applying for a marriage license who is unable to

provide certain required documents establishing the applicant's identity may seek judicial authorization

for waiver of the requirements, authorizes the hearing to be conducted in camera, and before a duty

judge, provides that the written order granting the waiver shall be attached to the marriage license

application, and further provides that judicial authorization may be granted by the district court, parish

court, family court, juvenile court, or city court, or by a justice of the peace court.

The provisions of new law are in addition to any other right or remedy and shall supersede and control

to the extent of conflict with any other provision of law relative to obtaining a marriage license.

New law clarifies that the procedure provided under existing law (C.C.P. Art. 532) to stay proceedings in

a suit is accomplished by a motion to stay rather than an exception of lis pendens.

Continued from previous slide

New law clarifies that the exception of lis pendens under existing law (C.C.P. Art. 925(A)(3)) is provided only by C.C.P. Art. 531 and does not authorize dismissal of the second suit.

New law adds to existing law the requirement that when the plaintiff's demand is for divorce under C.C. Art. 103(5), the plaintiff shall also submit to the court a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree.

New law provides that existing law (C.C.P. Arts. 3861, 3864, 3901, and 3902) relative to mandamus and quo warranto proceedings for corporations is also applicable to limited liability companies.

New law provides that the clerk of court shall not refuse to accept any pleading or other document solely on the ground that it was signed by electronic signature.

New law redesignates existing law C.C.P. Art. 1067 relative to the barring of all incidental demands by prescription or peremption as new Art. 1041 so it appears in the section of the C.C.P. on General Dispositions of Incidental Actions.

Effective August 1, 2017, except C.C.P. Art. 253(E) becomes effective Jan. 1, 2018. (Amends C.C.P. Arts. 253.3(A)(4), 284, 532(heading), 925(A)(3), 928(A), 1002, 1701- 1704, 1843, 1913(B) and (C), 2002(A)(2), 3861, 3864, 3901, 3902, 3955(B), 4904, 4921, 4921.1(C), and 5095, R.S. 13:3205, and R.S. 23:1316 and 1316.1(A); Adds C.C.P. Art. 74.3.1 and 253(E); Redesignates C.C.P. Art. 1067)

ACT 91 (HB 524) Schroder

Existing law provides that the motion to stay discovery in a civil action related to a criminal proceeding shall be heard by a contradictory hearing within 30 days of filing the motion, and provides additional procedures for lifting or terminating the stay.

Prior law excepted petitions or proceedings for divorce, custody, child support, visitation, or protective orders from application of existing law.

New law removes the prior law exception, authorizing a district attorney to move to stay all or a portion of discovery in actions for divorce, custody, child support, visitation, or protective orders.

Effective August 1, 2017 (Repeals C.C.P. Art. 1426.1(E))

Act 363 (HB 560) Hunter

Relative to the peremptory grounds for a legislative continuance, new law removes the requirement that the clerk of the House of Representatives or the secretary of the Senate file an affidavit verifying the issuance of the notice or call for legislative session.

New law provides that existing law shall not be used to impede the peremptory nature of existing law.

New law provides that the court shall consider a motion for legislative continuance at any time prior to the hearing, and authorizes the motion to be filed by facsimile transmission or electronic mail, provided the mover provides all parties with a copy of the motion.

Effective upon signature of governor. (Amends R.S. 13:4163(E)(1)(b), and (I); Adds R.S. 13:4163(E)(1)(c))

ACT 264 (HB 680) Marino

New law provides for the temporary modification or suspension of a child support order due to an

obligor's incarceration of more than 180 days. Requires the Dept. of Children and Family Services

(DCFS), once it is notified that an individual subject to support enforcement services is being

incarcerated, to verify that none of the following exceptions exist:

1. The incarceration is pursuant to an intentional failure to pay a child support obligation.

2. The obligor has the means to pay support while incarcerated.

3. The obligor is incarcerated for an offense against the custodial party or the child subject to

the support order.

New law adds that a person shall not be considered voluntarily unemployed or underemployed if

that person is incarcerated for more than 180 days.

New law requires the Dept. of Public Safety and Corrections or the sheriff in certain circumstances

to distribute information to every person in a prison facility regarding the suspension of child

support, including information specific as to what may constitute a material change in circumstances.

Further requires the Dept. of Public Safety and Corrections to notify DCFS of those persons who

are in their custody and who may be subject to a child support order.

Continued from previous slide

New law requires DCFS to provide notice to the custodial party by certified mail that the child support obligation will be suspended (if none of the exceptions exist) unless the custodial party objects no later than 15 calendar days from receipt of notice.

New law outlines the grounds for the custodial parent to object to modification or suspension of support, and provides for the process in which the custodial parent may object.

New law requires DCFS to file an affidavit with the court having jurisdiction over the order of child support and provides for the mandatory contents of the affidavit.

New law permits a court to continue an award of child support that would be otherwise terminated, if the award was suspended due to the obligor's incarceration. Provides for the appropriate moving party, depending upon the age of the child once the parent is released from incarceration. New law prohibits such a continuation from exceeding a longer period of time than the award was suspended due to the obligor's incarceration.

Provides that new law does not apply if a court does not have continuous exclusive jurisdiction to modify the order pursuant to the Uniform Interstate Family Support Act.

Effective Jan. 1, 2019. (Amends R.S. 9:311(A)(2) and (D) and 315.11(A) and (C); Adds Ch.C. Art. 1353(G), R.S. 9:311.1 and 315.27, R.S.13:4611(1)(d)(iii), and R.S. 46:236.6(B)(4) and 236.7(C)(4); Repeals R.S. 9:311(G))

ACT 105 (SB 9) Allain

Provides that an estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above, unless an act of man has created the flow.

Provides that the owner of the servient estate situated below may not do anything to prevent the flow of the water. New law further provides that the owner of the dominant estate situated above may not do anything to render the servitude more burdensome.

Effective upon signature of the governor (June 12, 2017). (Amends C.C. Arts. 655 and 656)

ACT 239 (SB 81) Bishop

Regarding curatorship proceedings, defines "diligent effort to locate" to be efforts by the

curator, under circumstances known to the curator, that are reasonably calculated to locate the

absentee. Provides that these efforts may include review of court records, department records,

law enforcement records, vital records, military records, directory assistance, internet search

sites, and licensing agencies. Provides that publication is not required unless specifically provided

in the Children's Code.

Delineates responsibility for payment of curator expenses and fees depending upon whether

the petitioner is the state or a private party.

Provides that it is not necessary to appoint a curator ad hoc for an unidentified father, including

when no party to the proceedings or the mother, if not a party, is unable to identify the putative

father.

Further provides grounds and procedures relative to termination of parental rights, right to

counsel and service, and prehearing and scheduling conferences.

Effective August 1, 2017. (Amends Ch.C. Arts. 405(A) and (B), 1016(A), and 1025.4(A)(2); adds

Ch.C. Arts. 116(4.1), 643(C), 1004(D)(6), 1015(10), and 1023(C))

ACT 186 (SB 109) Claitor

Provides for the suspension or extension of peremption, prescription,

and certain legal deadlines due to the hardships caused by the floods of

2016. Provides for the suspension or extension of prescriptive periods

and peremptive periods for the period of time between Aug. 12, 2016,

and Sept. 30, 2016.

Effective upon signature of governor (June 12, 2017). (Adds R.S. 9:5826

and 5827)

Act 381 (SB 121) Ward

Existing law provides that in civil proceedings and worker’s compensation

proceedings, the parties may obtain discovery by various methods, including

physical and mental examinations.

New law retains existing law and adds reference to such examinations as

additional medical opinions for physical and mental examinations and further

provides that a plaintiff shall not be ordered to submit to multiple examinations

by multiple physicians within the same field of specialty for the same injury

except for good cause shown.

New law provides that a minor shall have the right to have a parent, tutor, or

legal guardian present during the examination, and that, if such person cannot

be present, the court shall order the examination to be videotaped at the

expense of the party being examined. Further requires that the court consider

the best interests of the minor, and provides that the court may impose

conditions upon videotaping, including that it be done in a manner least harmful

to the minor and without disclosure to the minor.

Continued from previous slide

Existing law refers to such examinations in certain worker’s compensation

proceedings and proceedings under the Minority and Women's Business

Enterprise Act and the Protection From Family Violence Act as “independent

medical examinations” and “medical evaluations”. New law changes references

to “additional medical opinion medical examinations”.

Effective upon signature of governor. (Amends C.C.P. Arts. 1421 and 1464, R.S.

23:1123, 1124, 1203(E), 1221(4)(s)(ii), 1307 and 1317.1, R.S. 39:1952(14)(e), and

R.S. 46:2136(A)(4))

Act 244 (SB 129) Allain

Existing law provides that the owner of an enclosed estate who has no

access to his estate other than by way of an existing waterway passing

through neighboring property shall have a right and servitude of passage

on such waterway.

New law provides that such owner is bound to indemnify his neighbor

for the damage he may occasion.

Provides that new law will have prospective application only.

Effective August 1, 2017. (Amends R.S. 9:1254(A))