4.4 Peremptory Exceptions

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)).

Disclaimer: The articles in the Gillis Long Desk Manual do not contain any legal advice.