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.