Hebert v. Wise

I iFOGG, Judge, dissenting. I respectfully dissent. La.C.C.P. art. 2163 provides that an appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to submission of the case for a decision, and if proof of the ground of the exception appears of record. That article further provides that if an exception of pre- *737 seription is raised on appeal the plaintiff may demand that the case be remanded to the trial court for trial of the exception. In this case, plaintiffs have not demanded that the case be remanded for a trial and, as the majority points out, there is not enough evidence in the record to determine whether or not this exception is meritorious. Therefore, the exception should have been dismissed and the substantive issue of the validity of the summary judgment should have been addressed,