What is a peremptory exception, and how do I preserve it for appeal?

The peremptory exception is a means of defense, other than a denial or avoidance of the demand, to dismiss or defeat the demand. See La. Code Civ. P. art. 921. Its function is to have the plaintiff’s action declared legally nonexistent or barred by effect of law. Id. art. 923. The defenses that may be raised through the peremptory exception include, but are not limited to, prescription (statute of limitations), peremption (statute of repose), res judicata, nonjoinder of a necessary or indispensable party, no cause of action, no right of action, and discharge in bankruptcy. Id. art. 927(A).

The peremptory exception is probably the easiest defense to preserve. Except for prescription, the defenses listed in art. 927 may be noticed by either the trial or the appellate court on its own motion. La. Code Civ. P. art. 927(B). Unlike the declinatory and dilatory exception, which must be pleaded at the outset of the case, the peremptory exception may be pleaded at any stage of the proceeding in the trial court before submission of the case for a decision. Id. art. 928(B). In fact, La. Code Civ. P. art. 929(B) suggests that it may even be pleaded after trial.

The peremptory exception may even be pleaded for the first time in the court of appeal, if pleaded before submission of the case for a decision. Id. art. 2163. But I would caution against saving the exception for the appeal. Article 2163 says that the appellate court “may consider the peremptory exception filed for the first time in that court ....” (Emphasis added.) That word may means that the appellate court has discretion to either consider or not consider the peremptory exception pleaded for the first time in that court. See, e.g., Sowers v. Dixie Shell Homes of Am., 762 So. 2d 186, 189 (La. App. 2 Cir. 2000); Fontenot v. Chapman, 377 So. 2d 492, 494 (La. App. 3 Cir. 1979). So if you save the peremptory exception for the appeal, you are at the appellate court’s mercy. If you plead the exception timely in the trial court, the trial court must consider it. See La. Code Civ. P. art. 929.

There are only two things you need do to preserve a peremptory exception: (1) plead it, and (2) seek a hearing and decision on the exception.

To plead the exception, you must file a formal pleading raising the exception. Merely arguing the exception in a brief or in open court is insufficient, because neither a brief nor an oral argument is a pleading. Smith v. Jones, 504 So. 2d 570, 573 (La. App. 3 Cir. 1987); see also La. Code Civ. P. art. 852 (pleadings consist of petitions, exceptions, written motions, and answers).

You must also seek a hearing and decision on the exception; otherwise the appellate court will deem the exception abandoned or waived. See, e.g., Williams v. Vidrine, 330 So. 2d 396, 396–97 (La. App. 3 Cir. 1976); Shear v. Shear, 695 So. 2d 1026, 1030–31 (La. App. 5 Cir. 1997).

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Copyright ? 2015 by Raymond P. Ward. All rights reserved.