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).