In summary proceedings, exceptions must be filed before trial and be disposed of at trial before the merits.1  If available, it is always a good idea to plead exceptions in an eviction, because doing so allows you to make your argument first. If successful, you can avoid getting to the merits of the case. Be sure to object if the court tries to move to the merits without disposing of your exception. Insist on a ruling. If the court denies the exception, object in order to preserve the record (if you are in a court of record).

• 1La. C.C.P. art 2593.

Declinatory exceptions are identified in La. C.C.P. art. 925. These exceptions must be pleaded prior to or concurrently with the verified answer and sworn affirmative defenses. Failure to do so waives all declinatory exceptions other than lack of subject matter jurisdiction.1

Insufficiency of service of process

• Minor child or neighbor was served rather than tenant (and rule not tacked).
• No service return in the record.
• Address on Rule for Possession is incorrect.
• Landlord is aware of where tenant is incarcerated, evacuated, or otherwise displaced, but still serves by tacking despite the fact that the whereabouts of the tenant is not “unknown.”

If a tenant has temporarily relocated out of state due to a natural disaster but has not abandoned the apartment in Louisiana, the Rule for Possession must be served through the long-arm statute.2  In that case, trial on the rule cannot be held until 30 days following the filing of an affidavit asserting compliance with the service requirements under the long-arm statute.3

Lis pendens

• A successful exception of lis pendens requires dismissal of all actions between the same parties on the same transaction or occurrence other than the first filed.4  This exception may be appropriate when a tenant sues a landlord in a different court proceeding for reimbursement for repairs or rental offsets and the landlord retaliates with eviction proceedings for non-payment.
• Note that the court is only required to dismiss the eviction if there is a pending suit in a Louisiana state court. If there is a pending suit between the same parties on the same transaction or occurrence in federal court, the eviction court may dismiss the case due to lis pendens, but is not required to.5

Improper venue

• Some landlords will forum shop for a justice of the peace when the case should be filed in city court. Other landlords will file with the incorrect justice of the peace based on where the property is located. These practices are improper. The Attorney General’s office publishes a map showing the jurisdiction of each justice of the peace across the state.

Lack of subject matter jurisdiction

• City and justice of the peace courts do not have subject matter jurisdiction over issues of ownership of immovable property.6  Therefore, many evictions involving heirship and inheritance issues can only be brought in district court.
• If a seller in a bond for deed tries to evict before following the statutory procedures to terminate a bond for deed, the case becomes a dispute over ownership of an immovable. La. R.S. 9:2945 requires service of a 45-day notice that afterwards must be recorded in the conveyance or mortgage records before a court of limited jurisdiction has subject matter jurisdiction in an eviction of a possessor under a bond for deed.

• 1La. C.C.P. arts. 925, 928. There is also a declinatory exception of lack of personal jurisdiction, but this will rarely be an issue for a residential tenant.
• 2La. R.S. 13:3204.
• 3La. R.S. 13:3205.
• 4La. C.C.P. art. 531.
• 5Goldblum v. Boyd, 267 So. 2d 610, 612 (La. App. 2 Cir. 1972).
• 6La. C.C.P. art. 4847 (city and parish courts); La. C.C.P. art. 4913 (Justice of the peace court).

Dilatory exceptions are identified in La. C.C.P. art. 926. These exceptions must be pleaded prior to or concurrently with the verified answer and sworn affirmative defenses. Failure to do so waives the dilatory exception.1

Prematurity2

• Landlord failed to comply with contractual provisions regarding lease termination.3
• Landlord failed to comply with statutory provisions regarding lease termination.4
• Notice to vacate not provided to tenant and not waived.5
• Rule for possession filed before expiration of notice to vacate.6
• Rent accepted after notice to vacate, thus vitiating the notice (regardless of the reason for eviction).7
• Notice of nonrenewal for month-to-month tenant not provided 10 days before the last day of the month.8
• Notice to cure is required by the lease, but was not provided; notice to vacate issued prior to expiration of cure period.9
• If the landlord provides a notice to vacate when notice was waived in the lease, the landlord must comply with the delays in that notice under the theory of detrimental reliance.10
• In the case of a bond for deed, notice to cure within 45 days must be provided.11
• The lease is for a fixed term, which is not expired, and does not permit termination without cause, yet the landlord seeks to evict for no cause.12
• Less than 90 days written notice to vacate given to tenant in foreclosed property.13
• The hearing on the rule for possession was scheduled before the third day after service.14
• Louisiana law permits the parties to a contract to expressly agree that a contract will be deemed dissolved for failure to perform a particular obligation.15  If there is no such express dissolution clause, or the express dissolution clause does not provide a time for dissolution, then the obligee must first dissolve the lease pursuant to the law of conventional obligations.16  Only after dissolution can the landlord serve notice to vacate pursuant to La. C.C.P. art. 4701. In these cases, lease termination effectively becomes a two-step process.17  Because most leases have express dissolution clauses, this exception will most commonly present in case involving oral or poorly drafted leases or when the written lease is not introduced into evidence.
• Executive Order or emergency legislation at the state or local level during disaster may suspend delay periods for eviction.
• Covered property under the Coronavirus Aid Relief and Economic Security (“CARES”) Act failed to provide 30 days’ notice of eviction for nonpayment of rent.18

Unauthorized use of summary proceeding

• A landlord may not obtain a judgment for back rent or other damages in a summary eviction proceeding.19
• Neither co-owner, nor a succession representative or administrator, can evict an owner through a summary eviction proceeding.20
• Title disputes may not be litigated in a summary proceeding.21

Nonconformity of the petition with the requirements of La. C.C.P. art. 891

• The petition must contain:
  • Name of the parties.
  • Surname of the parties.
  • Domicile of the parties.
  • Short, clear, and concise statement of the causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.
  • An address, not a post office box, for receipt of service of all items involving the litigation.
  • An email address.
  • A concluding prayer for judgment for the relief sought.
  • The petitioner’s signature.22

Vagueness or ambiguity23

• The notice to vacate fails to state the reason for eviction in violation of due process.24
• The rule to show cause fails to state the grounds upon which eviction is sought.25
• Any ambiguity in a contract is construed against the party who prepared the document.26

• 1La. C.C.P. art. 926, 928.
• 2The dilatory exception of prematurity is an objection based upon whether the cause of action has matured to be ripe for judicial determination. Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 2004-0451 (La. 12/1/04), 888 So. 2d 782, 785.
• 3Versailles Arms Apartments v. Pete, 545 So. 2d 1193, 1194 (La. App. 4 Cir. 1989). If the lease requires notice that is longer than the statutory time period, you should argue that the longer period applies.
• 4Houston v. Chargois, 98-CA-1979 (La. App. 4 Cir. 02/24/99), 732 So. 2d 71, 73.
• 5La. C.C.P. art. 4701.
• 6Rainey v. Bartholomew, 2022-0616 (La. App. 4 Cir. 2/13/23); 357 So. 3d 900, 907; Lichtentag v. Burns, 258 So. 2d 211 (La. App. 4 Cir. 1972); Owens v. Munson, 2009 CA 0790 (La. App. 1 Cir. 10/27/09), 2009 WL 3454507. Prematurity of a lawsuit cannot be cured by an amended pleading. Duncan v. Duncan, 359 So. 2d 1310 (La. App. 1 Cir. 1978); La. C.C.P. art. 933(A).
• 7Bowling U.S.A., Inc. v. Genco, 536 So. 2d 814 (La. App. 1 Cir. 1988); Pin Oak v. McSweeney, 2018-CA-1073 (La. App. 1 Cir. 02/26/19), 2019 WL 927186; Canal Realty & Improvement Co. v. Pailet, 46 So. 2d 303, 306 (La. 1950); Kingfish Dev., L.L.C. v. Press IT #1 New Orleans, LLC, 2013-1113, p. 8 (La. App. 4 Cir. 03/26/14), 135 So. 3d 1232, 1235; Hous. Auth. of Lake Providence v. Allen, 486 So. 2d 1064, 1066 (La. App. 2 Cir. 1986). Landlord cannot defeat this exception by attempting to return the rent at trial. Four Seasons, Inc. v. New Orleans Silversmiths, Inc., 223 So. 2d 686 (La. App. 4 Cir. 1969). Note that where a landlord gives notice of intent to terminate the lease at expiration, the landlord may still accept rent due until the date of termination.
• 8Solet v. Brooks, 2009 CA 0568 (La. App. 1 Cir. 12/16/09), 30 So. 3d 96, 101; Houston, 98-CA-1979, 732 So. 2d 71.
• 9Second Zion Baptist Church #1 v. Jones, 2017-0926, p. 9 (La. App. 4 Cir. 04/18/18), 245 So. 3d 9, 14; Shell Oil Co. v. Siddiqui Grp. Enters., Inc., 98-496 (La. App. 5 Cir. 12/16/98), 722 So. 2d 1197, 1199.
• 10La. C.C. art. 1967.
• 11La. R.S. 9:2945.
• 12Shell Oil, 98-496, 722 So. 2d at 1199.
• 13Protecting Tenants at Foreclosure Act, 12 U.S.C. § 5220 note; Bank of N.Y. Mellon v. De Meo, 254 P.3d 1138 (Ariz. Ct. App. 2011).
• 14La. C.C.P. art. 4732; S. Peters Plaza, Inc. v. P.J., Inc., 2005-1050 (La. App. 4 Cir. 5/31/06), 933 So. 2d 876, 878.
• 15La. C.C. art. 2017.
• 16La. C.C. arts. 2013–2024.
• 17Solet, 09-0568, 30 So.3d at 101.
• 1815 U.S.C. § 9058(c). Cases across the country have found that the 30-day notice provision did not sunset and remains in effect. See Arvada Vill. Gardens v. Garate, 2023 CO 24, 2023 WL 3444733 (Colo. May 15, 2023); W. Haven Hous. Auth. v. Armstrong, NHH-CV-20-6013057S, 2021 WL 2775095, at *3 (Conn. Super. Ct. Mar. 16, 2021) (citing Nwagwu v. Dawkins, BPH-C-21-5004438S, 2021 WL 2775065, at *2 (Conn. Super. Ct. Mar. 2, 2021)); Watson v. Vici Cmty. Dev. Corp., No. CIV-20-1011-F, 2021 WL 1394477, at *12 (W.D. Okla. Apr. 12, 2021); Watson v. Vici Cmty. Dev. Corp., No. CIV-20-1011-F, 2022 WL 910155, at *11 (W.D. Okla. Mar. 28, 2022); Sherwood Auburn LLC v. Pinzon, 24 Wash. App. 2d 664, 679, 521 P.3d 212, 220 (2022).
• 19Major v. Hall, 263 So. 2d 22, 24 (La. 1972); Kingfish Dev., 2013-1113, 135 So. 3d at 1234 (holding that a landlord has the option to evict by ordinary or summary proceeding; in an ordinary proceeding, the landlord can evict and sue for owed rent in the same proceeding).
• 20In re Succession of Deal, 2013-200 (La. App. 3 Cir. 11/13/13); 129 So. 3d 686, 688; Coon v. Miller, 175 So. 2d 385, 386–87 (La. App. 2 Cir. 1965).
• 21Fradella Constr., Inc. v. Roth, 503 So. 2d 25, 26–27 (La. App. 4 Cir. 1986).
• 22La. C.C.P. arts. 853, 854, 855–861, 863, 891, 926.
• 23Vagueness and ambiguity in the notice to vacate and petition also present a due process issue.
• 24La. State Museum v. Mayberry, 348 So. 2d 1274 (La. App. 4 Cir. 1977); Flores v. Gondolier, Ltd., 375 So. 2d 400, 403 (La. Ct. App. 1979).
• 25La. C.C.P. art. 4731(A).
• 26La. C.C. art. 2056; Robinson v. Robinson, 993097 (La. 01/17/01), 778 So. 2d 1105.

Peremptory exceptions are identified in La. C.C.P. art. 927. These exceptions may be pleaded at any time prior to submission of the case for decision.1  Peremptory exceptions may be noticed sua sponte by either the trial or appellate court except for the exception of prescription, which must be specifically pleaded.2

Prescription

• A landlord has up to 3 years to sue for rent arrears.3  Though a landlord cannot sue for damages in a summary proceeding, advocates can argue that an action to evict for rent arrears over three years old has prescribed.

Res judicata

• Res judicata (i.e., claim preclusion) and collateral estoppel (i.e., issue preclusion) apply to eviction lawsuits.4  If a tenant wins on the merits of an eviction for a lease violation, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.5  Be sure to insist on a signed written judgment if the judge dismisses an eviction lawsuit. A notation of dismissal is insufficient to support a res judicata plea because it is not clear whether the eviction was dismissed on the merits or on an exception that can be cured.6  In such a case, it may be necessary to pull the transcript from the prior eviction case.

No right of action (i.e., standing)7

• Plaintiff is not the landlord or the landlord’s authorized agent.
• Co-owner cannot evict another co-owner.8  This often arises where an heir to property attempts to evict another heir.
• Succession representative or administrator cannot evict an heir.9
• Usufructuary cannot be evicted by naked owner unless usufruct is terminated because usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.10  Usufructuary may retain possession even after termination of usufruct until the naked owner reimburses the usufructuary for expenses and advances to which the usufructuary is entitled.11

No cause of action12

• If the lease requires a notice to cure and no notice was provided, the alleged violation does not place tenant in default.
• If the tenant lives in subsidized housing that requires good cause to evict, and the eviction is brought merely for lease expiration or “owner wants possession,” landlord has not stated a cause of action for possession.
• If the eviction is brought for nonpayment of a subsidy provider’s portion of rent, the landlord has not stated a cause of action for possession against the tenant.
• A landlord who alleges a lease violation that is not actually a violation of the lease may have no cause of action for possession.
• Note that an exception of no cause of action cannot require or introduce evidence beyond the pleadings.13

Mootness

• The rule for possession is moot if the tenant has vacated before the hearing.
• To successfully assert that the tenant’s vacating of the property has mooted the case (thereby depriving the landlord of a right of action to regain possession), the advocate must ensure that the property has none of the tenant’s belongings remaining and the keys were turned in.
• Mootness can also be raised as an exception of lack of subject matter jurisdiction.14

• 1La. C.C.P. art. 928(B).
• 2La. C.C.P. art. 927(B); see also La. C.C.P. arts. 1702(D), 4904(D), 4921(C).
• 3La. C.C. art. 3494(2).
• 4Ave. Plaza, L.L.C. v. Falgoust, 96-0173 (La. 07/02/96), 676 So. 2d 1077; Hous. Auth. of New Orleans v. Riley, 96-1839 (La. App. 4 Cir. 03/12/97), 691 So. 2d 256 (holding that res judicata did not bar second eviction based on different set of facts).
• 5La. R.S. 13:4231(2).
• 6Brown v. Boudreaux, 21 So. 2d 44 (La. 1945).
• 7La. C.C.P. arts. 681 (“An action can be brought only by a person having a real and actual interest in the asserts.”); La. State Bar Ass’n v. Carr & Assocs., Inc. 2008-2114 (La. App. 1 Cir. 5/8/09), 15 So. 3d 158, 165 (“A peremptory exception pleading the objection of tests whether the plaintiff has any interest in judicially enforcing the right asserted.”).
• 8Millaud v. Millaud, 99-CA-2145 (La. App. 4 Cir. 4/5/00), 761 So. 2d 44 (holding that co-owners are not occupants within the meaning of the eviction code articles and that evicting co-owner’s proper remedy was partition).
• 9Matthews v. Horrell, 2006 CA 1873 (La. App. 1 Cir. 11/07/07), 977 So. 2d 62; Coon v. Miller, 175 So. 2d 385, 387 (La. App. 2 Cir. 1965).
• 10La. C.C. art. 623; Bond v. Green, 401 So. 2d 639 (La. App. 3 Cir. 1981).
• 11La. C.C. art. 627; Barnes v. Cloud, 46,685 (La. App. 2 Cir. 12/14/11), 82 So. 3d 463.
• 12See Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So. 2d 1234, 1235 (La. 1993) (“The function of an exception of no cause of action is to test the legal sufficiency of a pleading to determine whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action.” (internal citations omitted)).
• 13La. C.C.P. art. 931.
• 14Ulrich v. Robinson, 18-0534, pp. 12–13 (La. 03/26/19), 282 So. 3d 180, 186 (“If the case is moot, ‘then there is no subject matter on which the judgment of the court can operate.’” (quoting Perschall v. State, 96-0322 (La. 07/01/97), 697 So. 2d 240)).