There is a doctrine based on equity which has been used by the courts of this state in circumstances where there is no express prescriptive period. See Osborne v. Stone, 472 So.2d 223, 225 (La.App. 1st Cir. 1985). This defense is laches, and is premised on unreasonable delay coupled with prejudice resulting from said delay.
One Louisiana appellate case decided after Corbello has nonetheless upheld a dismissal on the ground of laches. See Osborne v. Stone, 472 So.2d 223 (La.App. 1st Cir.), vacated on other grounds, 476 So.2d 809 (La. 1985) (specifically not deciding whether "laches is available in Louisiana"). The case purported to recognize the doctrine in limited circumstances "when other factors, coupled with the passage of time, are present."
Generally, courts have been reluctant to award retroactive monetary relief to public employees who have filed actions after a lengthy delay, where to afford such relief would cause substantial prejudice to the public's fiscal affairs. In Osborne v. Stone, 472 So.2d 223 (La.Ct.App.), vacated and remanded on procedural grounds, 476 So.2d 809 (La. 1985), for example, the court expressed these concerns, which are equally implicated in the case now before this Court: "The rule that laches on the part of such public employee will bar his claim for reinstatement is not based on any law of prescription or limitation of actions, but it arises from reasons of public policy.
For recognition of the laches doctrine, see also Corbello v. Sutton, 442 So.2d 610 (La.App. 1st Cir. 1983). We are aware of Justice Dixon's disagreement with concept of laches in his concurrence in Osborne v. Stone, 472 So.2d 223 (La.App. 1st Cir.), vacated and remanded, 476 So.2d 809 (La. 1985), appeal after remand, 536 So.2d 473, (La.App. 1st Cir. 1988), writ denied, 537 So.2d 1164 (La. 1989); we are also aware of La.C.C. art. 3457 which provides that "[T]here is no prescription other than that established by legislation." Revision comment (b) for La.C.C. art. 3457 provides that "[U]nder the Louisiana legal system, there is no room for the common law doctrine of laches."
The doctrine of laches can provide a defense when various factors peculiar to the particular case, coupled with the passage of time, are present. See State ex rel Guste v. Estate of Himbert, 327 So.2d 698 (1st Cir. 1976) writ denied 330 So.2d 308 and 311 (La. 1976); Osborne v. Stone, 472 So.2d 223 (1st Cir. 1985) judgment vacated at 476 So.2d 809 (La. 1985). However, the doctrine of laches, if available in Louisiana, is an affirmative defense and not properly before a court via an exception.
Accordingly, the judgment sustaining the exception should be reversed, and this case remanded to the trial court for a trial on the merits. See, for example, Osborne v. Stone, 476 So.2d 809 (La. 1985), which peremptorily reversed 472 So.2d 223 (La.App. 1st Cir. 1985).
Defendants filed an exception of laches and lack of diligence which the trial court sustained, and it dismissed plaintiff's suit. Plaintiff took a devolutive appeal to this court which, in a 3 — 2 decision, affirmed the trial court, 472 So.2d 223. The Supreme Court then granted a writ, holding: Granted. The contention of laches may not be raised by exception; assuming without deciding that laches is available in Louisiana, it may be urged only as an affirmative defense.