Art. 2163.Peremptory Exception Filed In Appellate Court; Remand If Prescription Or Peremption Pleaded

Louisiana groups preliminary objections to a lawsuit into three families of exceptions. A declinatory exception challenges the court's power over the defendant or the case, such as improper venue. A dilatory exception raises a procedural defect that can be cured, such as a plaintiff's lack of procedural capacity. A peremptory exception is different in kind: it asserts that the plaintiff has no legal right to pursue the claim at all, or that the right no longer exists, and if it succeeds, it can end the case outright. Prescription, Louisiana's version of a statute of limitations, and peremption are the grounds behind Article 2163's remand rule, and they are among the exceptions most peremptory pleas rest on.

Ordinarily an exception has to be raised in the trial court to be considered at all. Article 2163 carves out an exception to that rule for peremptory exceptions specifically: the appellate court can consider one raised there for the first time, but only if it is pleaded before the case is submitted for decision, and only if the record already contains proof of the ground being asserted. An appellate court will not go looking for evidence outside the record to support a peremptory exception raised late.

Prescription and peremption both bar stale claims, but they work differently. Prescription can sometimes be interrupted or suspended, by a timely suit, an acknowledgment, or another qualifying event, which restarts or pauses the clock. Peremption cannot; once the peremptive period runs, the underlying right itself is extinguished, not just the remedy. Because that distinction can matter to the outcome, and because the trial court is better positioned to take evidence on when a claim accrued or whether prescription was interrupted, Article 2163(B) lets the plaintiff demand that the case be remanded to the trial court for a trial of the exception whenever the ground pleaded on appeal is prescription or peremption. That demand belongs to the plaintiff alone; the article does not give the defendant an equivalent right to insist on a remand.