Here’s an unusual sequence of events. Plaintiffs filed a petition to nullify a judgment. The defendant pleaded a peremptory exception of prescription. The trial court sustained the exception and dismissed the suit. The court of appeal reversed and remanded for further proceedings. On remand, at the conclusion of trial testimony, the defendant re-urged its exception of prescription. After taking the matter under advisement, the trial court rendered judgment dismissing the plaintiffs’ petition with prejudice without addressing prescription. Plaintiffs appealed. Without answering the appeal, the defendant re-urged its exception of prescription in the court of appeal. Can the court of appeal consider the exception? Yes, says the Louisiana Fourth Circuit. See Loughlin v. United Services Auto. Ass’n, 2017-0109, pp. 13–16 (La. App. 4 Cir. 12/20/17), — So. 3d —. And what’s more, the Loughlin court sustained the exception! Id., p. 21.
“What about law of the case?” you ask. The Fourth Circuit determined that, in the first appeal, it did not rule on the merits of the exception. Instead, it found that the claim was not prescribed on the face of the petition and there was no evidence to contradict the petition’s allegations. Id., p. 15. Thus, the defendant was free to re-urge the exception in the trial court and (unlike the first time) offer evidence to support the exception.
From there, it was only a tiny step to for the defendant to re-urge the exception on appeal. See La. Code Civ. P. art. 2163 (appellate court may consider peremptory exception raised for first time in that court); see also La. Code Civ. P. art. 2133(B) (party who does not answer appeal may still assert, in support of the trial court’s judgment, any argument supported by the record).