John G. Maroney Consulting Engineers, Inc. v. Rowan

476 So. 2d 918, 1985 La. App. LEXIS 9827
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1985
DocketNo. 17213-CA
StatusPublished
Cited by1 cases

This text of 476 So. 2d 918 (John G. Maroney Consulting Engineers, Inc. v. Rowan) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John G. Maroney Consulting Engineers, Inc. v. Rowan, 476 So. 2d 918, 1985 La. App. LEXIS 9827 (La. Ct. App. 1985).

Opinion

SEXTON, Judge.

Defendant appeals a judgment awarding plaintiff $2,317.72, representing the amount due plaintiff for engineering services rendered to defendant on an open account basis.

This dispute arises over payment for engineering services which plaintiff performed for the defendant, a general contractor, on April 27, September 18, September 21, 1979, and on April 30, 1981 on an open account basis. The defendant failed to pay for these services and on August 22, 1984, plaintiff filed suit against the defendant for $2,317.72 in the Monroe City Court. On August 31, 1984, defendant filed an answer to plaintiffs petition in proper person denying all of plaintiffs allegations. The defendant filed no exceptions with his answer.

On September 17, 1984, the defendant, again in proper person, filed a third party demand against Ralph W. Brockman, Jr. alleging that Mr. Brockman agreed to pay defendant for all services rendered by plaintiff because the services were’ performed for Brockman’s benefit at his request.

The record indicates that sometime between the filing of the third party demand and September 27,1984, defendant retained the services of an attorney, William Armstrong, to represent him in this matter.

After the trial of this cause had been continued twice, it came up for trial on December 20, 1984. On the morning of the trial, defendant’s attorney filed a peremptory exception of prescription based on the three year prescriptive period set forth in LSA-C.C. Art. 3494.1 In addition, defendant’s attorney also filed an amending and supplemental answer which set forth the peremptory exception of prescription as an affirmative defense to the allegations in plaintiff’s petition.

The trial judge refused to consider defendant’s peremptory exception because the exception was not filed with defendant’s answer as required by LSA-C.C.P. Art. 4912 D. In addition, the trial judge refused to accept the supplemental and amending answer filed by defendant on the day of the trial.2

[920]*920Subsequent to these rulings regarding the prescriptive pleadings, both plaintiff and defendant stipulated to judgment against defendant for $2,317.72, the sum prayed for, subject to defendant’s right to appeal the trial judge’s ruling on the peremptory exception of prescription. In addition, the parties stipulated that defendant’s third party demand be denied.

The defendant has filed an exception of prescription in this court under the authority of LSA-C.C.P. Art. 2163, which allows the pleading of a peremptory exception in a court of appeal prior to the submission of the case for decision “if proof of the ground of the exception appears in the record.”

On appeal, defendant initially contends that the trial judge erred in denying defendant the right to file a peremptory exception of prescription in city court at the time the matter was called for trial. Specifically, defendant contends that under LSA-C.C.P. Art. 928, the peremptory exception was filed timely, and that the trial judge was in error in relying on LSA-C. C.P. Art. 4912 D to determine that the exception was untimely.

City court suits involving more than $1,000 but $5,000 or less require written pleadings, but the delays for answering and filing exceptions are the same as in those suits involving $1,000 or less in which pleadings are not required. LSA-C.C.P. Art. 4902. In such a suit, LSA-C.C.P. Art. 4912 D provides that a defendant shall include “in his answer” all of the exceptions upon which he is relying. On the other hand, LSA-C.C.P. Art. 928 B provides that the peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.

Thus, the task presented to us by this appeal is to resolve the apparent conflict between Articles 928 B and 4912 D of the Code of Civil Procedure, i.e., which article governs the delay for filing a peremptory exception in a city court suit involving more than $1,000 but $5,000 or less. Upon considering the reason and spirit of the aforementioned procedural articles as mandated by LSA-C.C. Art. 18, we conclude that in the face of this apparent conflict, these articles can and should be read together to effectuate a general purpose. LSA-C.C. Art. 17.

The function of the peremptory exception, unlike the declinatory and dilatory exceptions, is to have the plaintiff’s action declared non-existent or barred by law, and thus tends to defeat the action. LSA-C. C.P. Art. 923. In contrast, the dilatory exception does not tend to defeat the action but merely retards the progress of the case, while the function of the declinatory exception is to decline the jurisdiction of the court. LSA-C.C.P. Art. 923. The failure to assert the declinatory exception concedes the jurisdiction of the court, LSA-C. C.P. Arts. 923, 925; and the failure to assert the dilatory exception indicates that the defendant is satisfied with the. posture of the case. LSA-C.C.P. Arts. 923, 926.

The legislative purpose inherent in the requirement of Art. 4912 D that all exceptions be filed with the answer is the expedition of more minor suits in courts of limited jurisdiction. Reulet Electric Company, Inc. v. Bryant, 429 So.2d 486 (La.App. 1st Cir.1983). The purpose of expedition and the prevention of protracted pre-trial hearings is likewise embodied in the Art. 928 requirement that the declinatory and dilatory exceptions be filed at the same time and be pled prior to answer. Holding Art. 928 B, which allows the pleading of the peremptory exception at any stage of the proceedings in the trial court prior to submission, to be superior to Art. 4912 D does no violence to this purpose.

Allowing a peremptory exception to be heard at any stage of the proceeding does not create unnecessary delay and interfere with judicial efficiency. If a peremptory exception has merit, a plaintiff’s cause of action can and should be defeated, thus [921]*921obviating the necessity for a trial. Moreover, LSA-C.C.P. Art. 2163 clearly allows a plaintiff to assert the peremptory exception of prescription in the appellate court, and makes no exception for the appeal from a court of limited jurisdiction in a case involving $5,000 or less. Thus, it would be illogical and inefficient to determine that a plaintiff could not file the peremptory exception in a suit such as this prior to submission in the trial court (after answer), but may do so on appeal.

We therefore conclude that LSA-C.C.P. Art. 928 governs the delay for filing a peremptory exception in a city court suit involving more than $1,000 but less than $5,000. Thus, the trial court was in error in not considering the peremptory exception of prescription filed in this cause on the day of trial. This holding will require a remand because we are unable to determine the merits of plaintiffs exception of prescription. Although plaintiff filed a photocopy of defendant’s account card as an attachment to his petition, this card was never introduced in evidence. No evidence was taken in the trial court as judgment was stipulated when the trial court refused to consider defendant’s prescriptive pleadings.

Plaintiff’s second contention is that the trial court erred in refusing to allow the defendant to amend his answer to assert the affirmative defense of prescription on the date of trial. While prescription is usually asserted as a peremptory exception, it is also an affirmative defense. LSA-C.C.P. Art. 1005, LSA-C.C. Art. 3447. See also Dean McMahon’s Comment No.

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Bluebook (online)
476 So. 2d 918, 1985 La. App. LEXIS 9827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-g-maroney-consulting-engineers-inc-v-rowan-lactapp-1985.