Preserving dilatory and declinatory exceptions

This post is the first of several examining the preservation of defenses. A defense, depending on its nature, may be pleaded by an exception or by the answer.

An exception is a means of defense, other than a denial or avoidance of the demand, used by the defendant to retard, dismiss, or defeat the plaintiff’s action. See La. Code Civ. P. art. 921. There are three kinds of exceptions: declinatory, dilatory, and peremptory. Id. art. 922.

The function of the declinatory exception is to decline the jurisdiction of the court. Id. art. 923. The objections that may be raised through this exception include insufficiency of citation, insufficiency of service of process, lis pendens, improper venue, the court’s lack of jurisdiction over the defendant’s person, and the court’s lack of subject-matter jurisdiction. Id. art. 925(A).

The function of the dilatory exception is to retard the progress of the action. Id. art. 923. The objections that may be raised through this exception include prematurity, want of amicable demand, unauthorized use of summary proceeding, nonconformity of the petition with rules governing the form of the petition, vagueness or ambiguity of the petition, lack of procedural capacity, improper cumulation of actions or parties, and discussion. Id. art. 926(A). (Discussion is the right of a secondary obligor to compel the creditor to enforce the obligation against the primary obligor, or if the obligation is a mortgage, to enforce it against the property affected by the mortgage before enforcing it against the secondary obligor’s property. La. Code Civ. P. art. 5151.)

Note that the codal lists of objections that can be raised through the declinatory or dilatory exception are non-exclusive. It can sometimes be difficult to tell which category an unlisted defense falls in. For example, if the plaintiff’s claim is subject to arbitration, the objection might arguably be raised through the declinatory exception (it is analogous to improper venue), though in practice, it is usually raised through the dilatory exception of prematurity. 

Fortunately, the rules for asserting (and thus preserving) defenses that can be raised through the declinatory or dilatory exception are identical. These exceptions must be pleaded before or in the answer, and before or along with any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time to plead, security for costs, or dissolution of an attachment. When both exceptions are pleaded, they must be filed at the same time and may be incorporated in the same pleading. See La. Code Civ. P. art. 928(A).

If you plead either of these exceptions, you must include all objections that may be raised through one or the other; any excluded objection is waived. La. Code Civ. P. art. 925(C). The only “exception” (sorry) to this rule is the objection of lack of subject-matter jurisdiction. Id. This is because subject-matter jurisdiction cannot be conferred by the parties’s consent. Id. art. 3.

Remember our basic rule: to preserve an issue for appeal, you must not only raise it timely and properly in the trial court; you must also obtain the trial court’s ruling on it. This rule applies to defenses that can be raised by the declinatory or dilatory exception. Code of Civil Procedure art. 929(A) requires declinatory and dilatory exceptions to be tried and decided before the trial of the case. And La. Dist. Ct. R. 9.8(a) requires all exceptions to be accompanied by a proposed order setting the exception for hearing. When the trial court does not rule on declinatory or dilatory exceptions, those exceptions are considered abandoned. LP&L v. City of Houma, 229 So. 2d 202, 204 (La. App. 1 Cir. 1969).

If the trial court overrules your declinatory or dilatory exception, you may need to apply to the court of appeal for a supervisory writ. Louisiana courts have held that a parties waive the exceptions of improper venue and prematurity by failing to apply for a supervisory writ after these exceptions were overruled by the trial court. See, e.g., Thomas v. Desire Community Housing Corp., 773 So. 2d 755, 760–61 (La. App. 4 Cir. 2000) (exception of prematurity waived by failing to seek immediate review); Alexander v. Palazzo, 5 So. 3d 950, 953 (La. App. 1 Cir. 2009) (party waived objection to venue by failing to apply for a supervisory writ to review overruling of exception); Mousa v. Kasem, 731 So. 2d 981, 983 (La. App. 4 Cir. 1999) (same). This is because the erroneous overruling of these exceptions cannot, as a practical matter, be corrected on appeal from the final judgment in the case. Alexander, 5 So. 3d at 953.

Indeed, the Louisiana Supreme Court has held that a supervisory writ is the only means to seek appellate review of an adverse venue ruling. Land v. Vidrine, 62 So. 3d 36, 39–41 (La. 2011). Nevertheless, if the party aggrieved by a venue ruling fails to apply for a supervisory writ, the transferee court considering an exception of peremption or prescription should reconsider venue for the purpose of determining whether suit was filed timely in a proper venue under La. Civ. Code art. 3462. See Land, 62 So. 3d at 41–42 (peremption); Phillips v. Patterson Ins. Co., 704 So. 2d 246 (La. 1998) (prescription).

In a slight extension of the must-take-a-writ rule, the Louisiana Fourth Circuit has held that, when a trial court overrules a dilatory exception of prematurity and the court of appeal denies a supervisory writ, the defendant must apply to the Louisiana Supreme Court for a writ. Bodenheimer v. New Orleans Public Belt, 828 So. 2d 77, 81 (La. App. 4 Cir. 2002). In pleading the exception, the defendant in Bodenheimer argued that the dispute was subject to an arbitration clause. After the trial court overruled the exception and the court of appeal denied a supervisory writ, the defendant failed to apply to the Louisiana Supreme Court for a writ; instead the defendant attempted to resurrect the exception in an appeal after final judgment. The Fourth Circuit held that, by failing to apply to the Louisiana Supreme Court for a writ, the defendant waived the exception.

So much for declinatory and dilatory exceptions. Our next post will begin an examination of peremptory exceptions and affirmative defenses.


Preserving claims or causes of action

Up to now, this series of posts on preserving error has examined general rules and principles underlying the doctrine of error preservation. We will now begin examining the application of those general rules and principles to specific stages of litigation. Note that, when examining how and when to raise a specific issue in the trial court, we usually consult the Code of Civil Procedure or other legislation.

Error preservation begins with the commencement of a civil action by the filing of a petition. See La. Code Civ. P. art. 421. With few exceptions, the petition must assert all causes of action arising from the transaction or occurrence that is the subject matter of the litigation. La. Code Civ. P. art. 425(A) and art. 891. This is because the final judgment in the case will extinguish all causes of action arising from the transaction or occurrence that is the subject matter of the litigation. If the judgment is in the plaintiff’s favor, those causes of action are extinguished and merged into the judgment. If the judgment is in the defendant’s favor, those causes of action are extinguished, and the judgment bars a subsequent action on them. See La. R.S. 13:4231.

Thus, the rule for preserving claims or causes of action is simple: plead them or lose them. (And of course, when you get to trial, prove them or lose them.)

As we will see in later posts, preserving defenses is trickier. Some defenses are pleaded in the answer; others are pleaded in exceptions; and there are three different species of exceptions (dilatory, declinatory, and peremptory). And the rules governing exceptions are different from those governing the answer. But we will find our way through by following one simple rule: When in doubt, look at the Code of Civil Procedure.


The basic rule for preserving error

Preserving errors for appeal can seem complicated; it seems that every possible error a trial court can make has a corresponding procedure for preserving the error for appellate review. But in fact, this entire area of law can be summed up in just one basic two-part rule for preserving any error for appeal. Here it is:

To preserve an error for appellate review, you must:

  1. Raise the issue properly and timely in the trial court; and
  2. Obtain a ruling from the trial court.

This basic rule applies to error preservation at all stages of litigation, from pleading through discovery, motion practice, trial, and post-trial. You must raise the issue properly and timely in the trial court to avoid sandbagging and to give the trial court a fair opportunity to make the right call. You must obtain a ruling from the trial court because, without a ruling, there is nothing for the court of appeal to review.

But how does one know when and how to raise and issue in the trial court? The answer is usually found in the Code of Civil Procedure, the Code of Evidence, or other legislation; occasionally the answer is found in caselaw.


Thou shalt conserve judicial resources

Yesterday we saw that one purpose of requiring parties to preserve errors in the trial court is to avoid sandbagging: allowing the trial court to make an error by failing to object, then attempting to raise the error on appeal. A second purpose served by the error-preservation requirement is similar: conservation of judicial resources. The parties must give the trial court a fair opportunity to avoid an error or to correct an error immediately. This helps avoid unnecessary appeals and multiple trials.

In Thomas v. Arn, 474 U.S. 140 (1985), the Supreme Court cited conservation of judicial resources in approving an error-preservation rule of the Sixth Circuit, one requiring parties who disagree with a magistrate judge’s report to file timely objections in the district court. The Court noted that absence of such a rule would increase the courts’ workloads and waste judicial resources:

Absent such a rule, any issue before the magistrate would be a proper subject for appellate review. This would either force the court of appeals to consider claims that were never reviewed by the district court, or force the district court to review every issue in every case, no matter how thorough the magistrate’s analysis and even if both parties were satisfied with the magistrate's report. Either result would be an inefficient use of judicial resources. [Id. at 148.]

In the next post of this series, we will look at the basic rule for preserving errors: a simple rule applicable at every stage of the litigation.


Thou shalt not sandbag

In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as “[t]he act or practice of a trial lawyer’s remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem.” Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described sandbagging as “suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later — if the outcome is unfavorable — claiming that the course followed was reversible error. Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

  • “The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy.... The Sixth Circuit’s rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from ‘sandbagging’ the district judge by failing to object and then appealing.” Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
  • “The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.” Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
  • “If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.” U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

The no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.


Jurisdiction: The foundation of error preservation

Yesterday we asked why an error must be brought to the trial court’s attention to be corrected there before being raised on appeal. The answer lies in the jurisdiction of the trial and appellate courts.

The first article of the Code of Civil Procedure defines jurisdiction as “the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” In most civil matters, the Louisiana Constitution vests original jurisdiction in the district courts and appellate jurisdiction in the courts of appeal. This means that the court of appeal’s jurisdiction is to review the actions of the trial court. If an issue has not been submitted to and decided by the trial court, “there is nothing for [the court of appeal] to review.” Cortes v. Lynch, 846 So. 2d 945, 953 (La. App. 1 Cir. 2003). Indeed, “[t]he very word ‘review’ presupposes that a litigant’s arguments have been raised and considered in the tribunal of first instance.” Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Cases that best illustrate this principle are those in which an appellant, for the first time on appeal, raises a ground for nullifying a judgment as a reason to reverse a judgment. (Examples: lack of service of process, judgment obtained by fraud or ill practices. See La. Code Civ. P. arts. 2002 and 2004.) Louisiana’s appellate courts uniformly hold that grounds for nullity cannot be raised for the first time on appeal from an ill-gotten judgment. Rather, the party seeking to nullify a judgment must raise the issue initially in the trial court through an action for nullity under art. 2001.

A prime example of this caselaw is Phillips v. Space Master Intl., 696 So. 2d 64 (La. App. 5 Cir. 1997). In Phillips, the defendant argued on appeal that the plaintiff had taken a default judgment through ill practice: the plaintiff had given the defendant an informal, indefinite extension of time to plead in response to a lawsuit, only to take a default judgment against the defendant without giving the defendant any warning that the extension was over. The appellate court refused to consider the argument, explaining: “[A]ppellant cannot attack this default judgment in appeal of the judgment itself. Rather, his complaints related to fraud or ill practice must be brought as a direct action and not as an appeal..” Id. at 66.

Phillips is not an anomaly. Additional examples of the same principle’s application include the following:

The courts in these cases based these holdings not on technicalities, but on the constitutional limit on their jurisdiction. As courts of appeal, they had no jurisdiction to entertain an action for nullity that had not been brought initially in the district court.

Thus ends today’s lesson on jurisdiction as the foundation for the law on preserving errors. In the next posts, we will look at the public policy behind this area of law: prevention of sandbagging and conservation of judicial resources.


Series of posts on preserving issues for appeal

Monday’ blog post reminded me of some materials I’ve accumulated on preserving errors for review in Louisiana state courts. Recently I shared those materials with a colleague, who suggested writing an article about the topic. I decided instead to self-publish a series of posts here on preservation of error. I figured that breaking down the topic into a series of short blog posts and self-publishing them would be easier than trying to write one big lengthy article and then shopping for a publisher.

Let’s begin by defining preservation of error. Black’s Law Dictionary defines it as “the taking of all steps necessary under the rules of procedure or at common law in bringing an improper act or statement to the trial court’s attention so that, if not corrected, the mistake can be reviewed on appeal.” Black’s Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014). In Louisiana, substitute Code of Civil Procedure for rules of procedure, and substitute caselaw or jurisprudence for common law. This definition is reflected in La. Ct. App. Unif. R. 1-3, under which the court of appeal “will review only issues which were submitted to the trial court ....”

But why must an error in the trial court be brought to the trial court’s attention before it can be argued in the court of appeal? The next few posts will answer that question.


Plain-language jury instructions

The other day, I learned that the Louisiana Supreme Court has promulgated a set of standard, plain-language jury instructions for civil cases. The instructions can be found in Part R, Rule XLVI (46) of the Court’s rules, which you can find on the Court’s rules page. You can find a link to a PDF copy on the page listing the Court’s changes to its rules—look for the one signed September 12, 2014, effective October 15, 2014, enacting Part R Rule XLVI.

I tested the instructions by converting them to Word and running them through the spelling and grammar checker to get the readability statistics. The numbers aren’t bad:

  • Flesch reading ease: 59.9
  • Flesch-Kincaid grade level: 10.2 (meaning a sophomore in high school can understand them)
  • Average words per sentence: 22