Preserving peremptory exceptions and affirmative defenses: An introduction

In the last post on preservation of error, we looked at preserving declinatory and dilatory exceptions. These exceptions tend to be procedural rather than substantive: they impede the plaintiff’s ability to pursue the action but do not defeat the plaintiff’s action.

Substantive defenses — those that defeat the plaintiff’s action — come in two species: peremptory exceptions and affirmative defenses. According to La. Code Civ. P. art. 923, “[t]he function of the peremptory exception is to have the plaintiff’s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” The definition of an affirmative defense is similar. “An affirmative defense raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff's demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975).

Code of Civil Procedure art. 927 provides a non-exclusive list of defenses that can be raised through the peremptory exception, while art. 1005 provides a non-exclusive list of affirmative defenses. But because these lists are non-exclusive, it can sometimes be difficult to tell whether an unlisted defense should be pleaded as a peremptory exception or an affirmative defense. Fortunately, this difficulty causes few problems in practice. Most lawyers who plead peremptory exceptions replead them in the answer as affirmative defenses. And La. Code Civ. P. art. 1005 allows a trial court to treat a “mistakenly designated” affirmative defense as a peremptory exception and vice-versa.

Nevertheless, it is important to understand the distinction between peremptory exceptions and affirmative defenses because, as we will see in later posts, the ways to preserve these defenses for appellate review differ.