Art. 5091.Appointment; Contradictory Proceedings Against Attorney; Improper Designation Immaterial

Article 5091 is the general, Code-wide rule for a problem that recurs throughout Louisiana civil practice: what happens when a defendant cannot be found, cannot defend personally, or does not otherwise exist as a person capable of being sued. Rather than letting the case stall, the article requires the court, on the plaintiff's petition or ex parte written motion, to appoint an attorney to represent that defendant, so the litigation can proceed against someone equipped to answer for the defendant's interests.

Paragraph A covers personal, property, and status jurisdiction over a defendant who is a nonresident or absentee never served with process and who has not waived the objection to jurisdiction; an unemancipated minor or mental incompetent without a legal representative; or a deceased defendant for whose succession no representative has yet been appointed. Paragraph A(2) covers a parallel set of in rem scenarios: a deceased defendant whose heirs and legatees have not been judicially sent into possession, a corporation, limited liability company, or partnership that cannot be served for any reason, and a defendant whose property sits under an administration whose legal representative has died, resigned, been removed, or left the state permanently without a qualified successor. Once appointed, the proceeding is conducted contradictorily against that attorney, who stands in, for the limited purpose of the action, as though duly appointed to represent the decedent's succession.

Paragraphs C and D then protect the appointment from a purely titular mistake. Calling the appointed attorney a curator ad hoc, a tutor ad hoc, a special tutor, or some other label does not affect the proceeding's validity, and neither does an imprecise way of naming the defendant in an in rem action, so long as the designation used would identify the party to a reasonably prudent person.

This site has already encountered narrower, situation-specific versions of this same mechanism: an attorney appointed for an unrepresented defendant in an executory proceeding, and an attorney appointed for absent heirs and legatees in a succession. Article 5091 is where that recurring device comes from in its general, master form, with the remaining articles of this Chapter filling in the appointed attorney's qualifications, duties, and compensation.