Summary Judgment in Louisiana — Part I: A Historic ... · Summary Judgment in Louisiana — Part...

Summary Judgment in Louisiana — Part I: A Historic Perspective

Part II: Overview

Panelists:

Judge Rosemary Ledet Court of Appeal, Fourth Circuit; New Orleans, La.

B. Scott Andrews Dué, Price, Guidry, Piedrahita & Andrews; Baton Rouge, La.

Robert E. Kleinpeter Kleinpeter & Schwartzberg, L.L.C.; Baton Rouge, La.

Donald W. Price Dué, Price, Guidry, Piedrahita & Andrews; Baton Rouge, La.

2014 Evidence and Procedure Seminar LOUISIANA JUDICIAL COLLEGE

LOUISIANA ASSOCIATION FOR JUSTICE

February 20, 2014 . Windsor Court Hotel . New Orleans, Louisiana

Clark & Samenow, The Summary Judgment, 38 Yale L.J. 423, 424 (1929).1

Id. at 425.2

Id. at 423.3

F.R.C.P. 56, 1937 Advisory Committee Notes.4

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Summary Judgment in Louisiana: Where Are We, and How Did We Get Here?

by Donald W. Price

Summary judgment procedure has undergone numerous changes over the years, bothstatutory and jurisprudential. Given its importance in current civil practice, a good workingknowledge must be maintained of the ins-and-outs of the procedure. Working from the theory thatone cannot know where one is without some understanding of how they got there, this paper isintended to provide a history of summary judgment procedure in Louisiana, making note of the signsof change along the road.

The paper begins by discussing the origins and development of summary judgment procedurein the federal courts. It then examines the introduction of summary judgment to Louisiana practice,and it sets forth the Louisiana judiciary’s cautious reaction to the procedure. The paper then returnsto the federal system, examining the United States Supreme Court’s influential 1986 decisionsinterpreting Federal Rule 56. It next looks at how those decisions bore fruit in Louisiana in the formof the 1996 and 1997 legislative amendments to Louisiana summary judgment procedure. Finally,it considers post-1997 legislative and jurisprudential developments.

I. Origins and Development

Summary judgment did not exist at common law. In 1855, England adopted a procedure forsummary disposition of cases involving bills of exchange and promissory notes. This procedure1

was expanded to include other cases involving the collection of debt or liquidated demands inmoney, and for the recovery of land in some landlord-tenant cases. Similar expedited procedures2

were adopted and variously expanded or narrowed in numerous American states and colonies of theBritish empire.3

In 1938, the adoption of Rule 56 of the Federal Rules of Civil Procedure created a summaryjudgment process that applied to “all actions, including those against the United States or an officeror agency thereof.” It was intended to be “a method for promptly disposing of actions in which4

Id.5

Flory & McMahon, The New Federal Rules and Louisiana Practice, 1 La. L. Rev. 45, 746

(1938).

Unlike the Louisiana constitution, the Seventh Amendment guarantees a right to jury7

trial in civil cases, and this has been interpreted as requiring jury trials in all cases where suchtrials were available at common law in 1791, the date of the amendment’s adoption. See, e.g.,Markman v. Westview Instruments, 517 U.S. 370, 376 (1986). The United States Supreme Courthas never confronted the issue of the constitutionality of summary judgment procedure under theSeventh Amendment. A colorable argument can be made that summary judgment is notconstitutional in many cases, on the grounds that it differs significantly from any other proceduraldevice that existed to remove factual determinations from juries under the common law in 1791. See, e.g., Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev. 139 (2007).

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there is no genuine issue of material fact.” Louisiana commentators praised the provision, stating,5

“A similar broadening of the scope of the present Louisiana procedure on the subject would be amaterial improvement.”6

Almost immediately, conflicts developed between judges who were eager to use the newprocedure to resolve as many cases as possible and those who feared overuse of the procedure wouldpose a threat to justice that deprived litigants of their days in court. These philosophical conflicts7

eventually settled in to a practical procedure of expanded actual use of summary judgment, but withnumerous jurisprudential caveats about when, and under what circumstances, summary judgmentwould be appropriate. In an excellent article containing a detailed discussion of the history of Rule56, Judge Patricia Wald summarized the federal courts’ approach to summary judgment once theinitial disputes about its use had been more or less resolved:

To defend against summary judgment, it would not be enough to point out thepossibility of a jury not believing the evidence presented by the proponent; thedefendant must produce evidence himself to show there was a factual dispute. ....[C]ourts looked upon summary judgment with disfavor in certain kinds of cases orfor certain types of issues. The presumptively off-limits areas included antitrust,patents, negligence, civil rights, and broadly conceived categories labeled “importantpublic issues” or “complex cases,” primarily because such areas disproportionatelyinvolved questions of credibility, motive, state of mind and intent. ....

The prevailing wisdom for many decades was that summary judgment wasthe exception, not the rule, and courts were expected to be tougher on the movantsthan on the parties resisting it. A movant was required to point to actual evidence inthe record showing an absence of a disputed issue of material fact. She could not“sustain [her] burden merely by denying the allegations in the opponent’s pleadings”and demanding that the nonmovant come forward with evidence. .... And any choice

Wald, Summary Judgment at Sixty, 76 Tex. L. Rev. 1897, 1904-06, quoting 10 Charles8

Alan Wright, Arthur H. Miller & Mary Kay Kane, Federal Practice and Procedure § 2727, at 131,& § 2738, at 484 (2d ed. 1983) (footnotes and citations omitted).

McMahon, The Louisiana Code of Civil Procedure, 24 La. L. Rev. 1, 1-2 (1960).9

Id. at 1.10

Flory & McMahon, The New Federal Rules and Louisiana Practice, 1 La. L. Rev. 45, 6011

& n.106 (1938).

McMahon, supra note 9, at 1.12

The text of the original articles read:13

Art. 966: The plaintiff or defendant in the principal or any incidental action, with orwithout supporting affidavits, may move for a summary judgment in his favor for all or part ofthe relief for which he has prayed. The plaintiff’s motion may be made at any time after theanswer has been filed. The defendant’s motion may be made at any time.

The motion for summary judgment shall be served at least ten days before the timespecified for the hearing. The adverse party may serve opposing affidavits prior to the day of thehearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and

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of inferences to be drawn from the undisputed facts was supposed to favor the partyopposing the motion. Assessing the cases, Professor Wright concluded, “[J]udgeswill be quite demanding in their examination of the moving party’s papers, but willtreat the papers of the party opposing the motion indulgently.”8

This was where federal practice stood when Louisiana first adopted summary judgment procedure.

II. The 1960 Code of Civil Procedure

Since the Louisiana Purchase, Louisiana civil procedure has been an amalgamation ofFrench, Spanish, and common law practice. Dean McMahon deemed Edward Livingston’s 18259

Code of Practice a “lesser victory [] scored by the Romanistic system in the field of civil procedure,where Livingston skillfully blended Continental procedural principles with judicial administrativeprovisions of Anglo-American origin.” The Code of Practice was updated in 1870. A significant10

historical feature of this continental heritage has been the relative absence of civil jury trials untilrecently, compared to the experience in other states. 11

In the culmination of a decade-long effort on the part of the Louisiana State Law Institute andits reporters, the Legislature replaced the Code of Practice with a new Code of Civil Procedure inAct 15 of 1960. The Code of Civil Procedure drew from and expanded upon the Federal Rules of12

Civil Procedure. This included, in articles 966 through 969, a procedure for summary judgment.13

admissions on file, together with the affidavits, if any, show that there is no genuine issue as tomaterial fact, and that mover is entitled to judgment as a matter of law.

Art. 967: Supporting and opposing affidavits shall be made on personal knowledge, shallset forth such facts as would be admissible in evidence, and shall show affirmatively that theaffiant is competent to testify to the matters stated therein. Sworn or certified copies of all papersor parts thereof referred to in an affidavit shall be attached thereto or served therewith. The courtmay permit affidavits to be supplemented or opposed by depositions or by further affidavits.

If it appears from the affidavits of a party opposing the motion that for reasons stated hecannot present by affidavits facts essential to justify his opposition, the court may refuse theapplication for judgment or may order a continuance to permit affidavits to be obtained ordepositions to be taken or discovery to be had or may make any such other order as is just.

If it appears to the satisfaction of the court at any time that any of the affidavits presentedpursuant to this article are presented in bad faith or solely for the purposes of delay, the courtimmediately shall order the party employing them to pay to the other party the amount of thereasonable expenses which the filing of the affidavits caused him to incur, including reasonableattorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.

Art. 968: Judgments on the pleadings, and summary judgments, are final judgments andshall be rendered and signed in the same manner and with the same effect as if a trial had beenhad upon evidence regularly adduced. If the judgment does not grant mover all of the reliefprayed for, jurisdiction shall be retained in order to adjudicate on mover’s right to the relief notgranted on motion.

An appeal does not lie from the court’s refusal to render any judgment on the pleading orsummary judgment.

Art. 969: Judgments on the pleadings and summary judgments shall not be granted in anyaction for divorce, separation from bed and board, or annulment of marriage, nor in any casewhere the community, paraphernal, or dotal rights may be involved in an action between husbandand wife.

La. C.C.P. article 966, Official Revision comment (a) (1960).14

La. C.C.P. article 969; Comment, Summary Judgment, 21 La. L. Rev. 209, 211 (1960)15

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The official revision comments predicted that motion “will not be successfully utilized often,[but] the availability of the device and its potential for expeditious disposition of frivolous, but wellpleaded, demands and defenses should go very far in discouraging such demands and defenses.”14

A law review comment pointed out a few of the significant differences between the Louisianaarticles and Federal Rule 56. Unlike the federal rule, which applies to “all actions,” article 969limited the availability of summary judgment in certain family law cases. Further, while Rule 5615

allowed interlocutory judgments, the Louisiana version did not allow partial summary judgment.The author indicated that some of the reporters on the revision favored that provision, but it wasexcluded in an attempt to simplify summary judgment and because Louisiana then had few civil jury

Comment, supra note 15, at 218-19.16

Lee v. City of Baton Rouge, 243 La. 850, 858-59, 147 So.2d 868, 871 (1962).17

243 La. 1095, 150 So.2d 27 (1963).18

243 La. at 1102, 150 So.2d at 29. 19

243 La. at 1102-03, 150 So.2d at 29-30. 20

243 La. at 1103-04, 150 So.2d at 30.21

Stevens v. State Mineral Board, 255 La. 857, 867-68, 233 So.2d 542, 546-47 (1970).22

Dryades Savings & Loan Ass’n v. Lassiter, 400 So.2d 894, 896 (La. 1981).23

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trials.16

III. Jurisprudential Response and Statutory Amendments

Louisiana courts, like their federal colleagues, approached summary judgment cautiously andwith a concern for unduly limiting parties’ rights to trial. As had been the case in the federal courts,and to a great extent relying on the pronouncements of federal courts, a body of maxims andpronouncements about the methodology and propriety of summary judgment in particular casesoriginated in the intermediate appellate courts and found their way into the opinions andpronouncements of the Louisiana Supreme Court on summary judgment procedure.

After an initial case that seems to suggest that the party opposing summary judgment couldsimply rely on the allegations of his petition, the Louisiana Supreme Court’s first extended17

discussion of the new procedure was in Kay v. Carter. The court first determined that it was18

appropriate to consider federal jurisprudence and authorities concerning the application of summaryjudgment procedure. The court then endorsed several of those principles, including placing the19

burden of proof upon the mover, and that any doubt about the propriety of summary judgment mustbe resolved against the motion. Quoting from Moore’s Federal Practice, the court stated, “If there20

is to be error at the trial level it should be in denying summary judgment and in favor of a full livetrial.”21

Over the next three decades, these themes of caution were repeated and expanded upon. Thecourt made it clear that while federal decisions were instructive, they were not binding, and summaryjudgments could not be used for piecemeal trial of cases by ruling on particular parts of a party’sclaims. As a general rule, summary judgment was required to grant a party at least some of the22

ultimate relief for which he had prayed; it was not proper for the resolution of preliminary legalissues. The burden on the mover was described as “strict,” and requiring a showing that excluded23

Industrial Sand & Abrasives v. Louisville & Nashville R. Co., 427 So.2d 1152, 115424

(La. 1983).

Id.25

Duvalle v. Lake Kenilworth, 396 So.2d 1268, 1269 (La. 1981).26

Penalber v. Blount, 550 So.2d 577, 583 (La. 1989).27

Folse v. Western Atlas International, 593 So.2d 341, 343 (La. 1992).28

Schroeder v. Board of Supervisors, 591 So.2d 342, 345 (La. 1991).29

Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183.30

Bijou v. Alton Ochsner Medical Foundation, 95-3074 (La. 9/5/96), 679 So.2d 893, 897.31

376 U.S. 254 (1964).32

Mashburn v. Collin, 355 So.2d 879, 890 (La. 1977).33

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any real doubt that there were factual issues. The papers of the mover were to be closely24

scrutinized, while those of the opponent were to be indulgently treated. Where there was a choice25

of reasonable inferences to be drawn from the facts, the inferences were to be drawn in favor of theparty opposing the motion. Summary judgment was considered rarely appropriate for the26

determination of subjective facts such as intent, motive, malice, knowledge or good faith.27

Similarly, complex factual issues such as seaman status were deemed inappropriate for summaryresolution. These rules were enforced by de novo review on appeal.28 29

On the other hand, some issues were deemed particularly appropriate for summaryadjudication. Lack of coverage under an insurance policy was an appropriate issue forsummaryjudgment so long as there was no reasonable reading of the policy that afforded coverage. And30

where general damages are limited by a cap, as is the case with medical malpractice cases, the courthas held that those damages may be fixed by summary judgment if it is clear that the actual damageswould exceed the cap, as in a case involving a quadriplegic. And in defamation cases, in what will31

be seen to have been an impressive foreshadowing of future developments, where the clear andconvincing evidence standard of New York Times Co. v. Sullivan applied, the plaintiff was required32

to show that a reasonable judge or jury could find actual malice by clear and convincing evidence.33

For the first thirty-five years of summary judgment in Louisiana, the legislature maderelatively few substantive amendments to the articles. The effect of the amendments, however, wasto gradually make summary judgment available in more contexts. In 1966, interrogatory answerswere added to the types of documentary evidence that could be used on summary judgment, and itwas made clear that once the mover had supported its motion, the opposing party could not rest on

1966 La. Acts No. 36.34

1983 La. Acts No. 101.35

1984 La. Acts No. 89.36

1992 La. Acts No. 71.37

1986 La. Acts No. 219.38

475 U.S. 574 (1986).39

475 U.S. at 596-97.40

477 U.S. 242 (1986).41

477 U.S. at 249.42

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her pleadings but was required to come forth with evidence. In 1983, article 966 was amended to34

allow an interlocutory partial summary judgment on the issue of liability, even if factual issuesexisted as to damages. A year later, this provision was amended to allow the summary judgment35

on liability to be a final judgment. In 1992, a partial summary judgment on the issue of insurance36

coverage was authorized. In 1986, article 969 was amended to allow summary judgment in certain37

divorce proceedings, provided both parties were represented by counsel and the parties stipulatedand verified the facts.38

IV. Back to the Federal Rules – the 1986 Trilogy

As is shown above, the federal judiciary had developed a sense of caution and skepticismtoward the use of summary judgment since its adoption in 1938. That came to a halt in 1986. TheUnited States Supreme Court rendered three opinions, each of which reversed the lower courts’denial of summary judgment. The first was an antitrust conspiracy case brought against Japanesetelevision manufacturers by American electronics companies, Matsushita Electrical Industrial Co.v. Zenith Radio Corp. Ignoring the concern over the use of summary judgment in complex cases39

and subjective facts, the court held that if there were innocent explanations of the defendants’actions, and there was no rational economic motive to conspire, then there could be no inference ofconspiracy and the defendants were entitled to summary judgment.40

Anderson v. Liberty Lobby was a libel case brought by a public figure. The majority41

equated the issue on summary judgment to the issue on directed verdict, that is, whether a reasonablefactfinder could reach a verdict for the nonmoving party. Finding that the inquiry necessarily42

implicates the substantive evidentiary standard of proof, the summary judgment inquiry as to whethera genuine issue exists requires a determination of whether a reasonable jury could return a verdict

477 U.S. at 257. This is similar to the standard that had been adopted by the Louisiana43

Supreme Court in Mashburn v. Collin, supra note 33.

477 U.S. 317 (1986).44

477 U.S. at 322.45

On remand, the court of appeals affirmed its finding that summary judgment was46

inappropriate. Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987), cert. denied,484 U.S. 1066 (1988).

Wald, supra note 8, at 1913-14.47

Sassone v. Elder, 626 So.2d 345, 351-52 (La. 1993)48

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in favor of the plaintiff using the clear and convincing evidence standard.43

The third case in the trilogy was an asbestos wrongful death case. Following the death of herhusband, the plaintiff in Celotex Corp. v. Catrett sued a number of manufacturers alleging that his44

death was caused by exposure to her products. After discovery, the manufacturers all moved forsummary judgment. They did not introduce any evidence on their behalf; they simply argued thatthe plaintiff was unable to prove that her husband was exposed to their products. All of the motionswere granted by the trial court, and the plaintiff appealed only that in favor of Celotex. The courtof appeals reversed on the basis that the defendant had not properly supported its motion. TheSupreme Court reversed, holding that the party who will bear the burden of proof on a given issueat trial must establish the existence of a triable factual issue that element of the case on summaryjudgment. The court thus remanded to the court of appeals for reconsideration of the summary45

judgment issues.46

The famous trilogy is hardly a monolith. Each case had different, and close, majorities, andthose who wrote some dissented in others. Nevertheless, as Judge Wald states, it was clear that theSupreme Court had reversed three denials of summary judgment in one term, and the invocation ofthe general rule of Federal Rule of Civil Procedure 1 – that the rules were “to be interpreted to securethe just, speedy and inexpensive determination of every action” – seemed to be a sign that summaryjudgments should be used more frequently in federal courts.47

V. The 1996 and 1997 Amendments

Although Louisiana had adopted the Anderson v. Liberty Lobby rule for defamation cases, thesupreme court declined to extend the burden-shifting on summary judgment as was done in Celotex.48

The legislature changed that in 1996, when it amended the summary judgment articles as part ofGovernor Foster’s “tort reform” special session.

1996 La. Acts No. 9, § 1 (1st Extraordinary Session).49

Id.50

Id.51

1997 La. Acts No. 483, § 1.52

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The amendment began by making explicit what had only been implied by the 1986 trilogy:that summary judgment is now a preferred means of resolving cases. The amendment added a new,hortatory paragraph A(2) to article 966, which provided:

The summary judgment procedure is to secure the just, speedy, andinexpensive determination of every action, except those disallowed by Article 969.The procedure is favored and shall be construed to accomplish these ends. 49

Paragraph C was added to reallocate the burden of production of evidence on the motion tothe party who would bear the burden of proof on the issue at trial:

After adequate discovery or after a case is set for trial, a motion which showsthat there is no genuine issue of material fact and that the mover is entitled tojudgment as a matter of law shall be granted against an adverse party who fails tomake a showing sufficient to establish the existence of proof of an element essentialto his claim, action, or defense and on which he will bear the burden of proof at trial.50

The amendment went on to impose a requirement that summary judgment motions be ruledupon at least ten days before trial (paragraph D), and then, oddly, concluded with paragraph G byproviding, “Notwithstanding any other provision of this Article to the contrary, the burden of proofshall remain with the mover.” The amended article became effective on signature by the Governor51

on May 1, 1996.

The following year, the apparent contradictions between paragraph C and paragraph G wereresolved by the adoption of a new paragraph C(2), which provided:

The burden of proof remains with the movant. However, if the movant will notbear the burden of proof at trial on the matter that is before the court on the motion forsummary judgment, the movant's burden on the motion does not require him to negateall essential elements of the adverse party's claim, action, or defense, but rather topoint out to the court that there is an absence of factual support for one or moreelements essential to the adverse party's claim, action, or defense. Thereafter, if theadverse party fails to produce factual support sufficient to establish that he will be ableto satisfy his evidentiary burden of proof at trial, there is no genuine issue of materialfact.52

Id., § 3.53

Id., § 1.54

Id., § 4.55

Hayes v. Autin, 96-287, p. 6 (La. App. 3 Cir. 12/26/96), 685 So.2d 691, 694, writ56

denied, 97-281 (La. 3/14/97), 690 So.2d 41.

Id. at pp. 6-7, 685 So.2d at 694-95.57

See, e.g., Taylor v. Rowell, 98-2865 (La. 5/18/99), 736 So.2d 812, 814.58

Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.59

Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La. 2/20/04), 86660

So.2d 228, 234.

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The act repealed paragraph G. The act also amended paragraph E to allow summary judgments53

“dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one ormore parties, even though the granting of the summary judgment does not dispose of the entirecase.” 54

Finally, section 4 of the act stated that the purpose of the amendments to article 966 was “toclarify Acts 1996, No. 9, § 1 of the First Extraordinary Session of 1996 and to legislatively overruleall cases inconsistent with Hayes v. Autin, 96–287 (La. App. 3rd Cir. 12/26/96), 685 So.2d 691.”55

In that case, then-Judge Knoll held that the 1996 amendments leveled the playing field on summaryjudgment by requiring each parties’ evidence to be scrutinized equally and by removing thejurisprudential presumption in favor of trial on the merits. She then went on to hold that the 199656

amendments essentially adopted the view of the burden of proof set forth in Celotex.57

VI. Subsequent Developments

One of the immediate effects of the new statute was to add a new layer of boilerplate languageto courts’ recitations of the law of summary judgment, setting for its purpose and its favored status.58

There also seems to be much greater use of the summary judgment procedure. A simple Westlawsearch for summary judgment cases by the Louisiana Supreme Court returns 576 such cases in thethirty-five years before the effective date of the 1996 amendment, but it returns 581 in the eighteenyears since.

Despite the changes, many of the old “rules” of summary judgment still apply. Factualinferences reasonably drawn from the evidence must still be construed in favor of the nonmovingparty, and all doubt must be resolved in the nonmoving party’s favor. Credibility determinations59

cannot be made on summary judgment. Courts are still not to weigh evidence on summary60

Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 11 (La. 4/12/05), 90761

So.2d 37, 48.

99-2181, pp. 18-19 (La. 2/29/00), 755 So.2d 226, 236.62

The legislature amended article 967 to make the allowance of expert opinions explicit in63

2003. See 2003 La. Acts No. 967.

Samaha v. Rau, 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 883-843.64

MB Industries v. CNA Ins. Co., 11-303, pp. 15-16 (La. 10/25/11), 74 So.3d 1173, 1184.65

La. C.C.P. article 966(B)(1).66

06-175, p. 1 (La. 5/5/06), 928 So.2d 536, 536 (per curiam).67

10-0564 (La. 4/9/10), 32 So.3d 800 (per curiam).68

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judgment.61

One of the most important developments in summary judgment procedure was the supremecourt’s recognition, in Independent Fire Ins. Co. v. Sunbeam Corp. that article does not preclude62

expert opinion testimony in the form of an affidavit or deposition submitted in support of or oppositionto a motion for summary judgment. If there is no credibility determination is at issue, the trial judgemust consider this evidence if it would be admissible at trial. If qualifying evidence is submitted inopposition to a motion for summary judgment which creates a dispute as to a genuine issue of materialfact, the motion for summary judgment should be denied. In cases where expert testimony is63

required, such as non-obvious medical malpractice, the failure of the plaintiff to produce an expertaffidavit is grounds granting summary judgment. And when expert testimony is necessary, the64

defendant need not wait to file its motion until expert deadlines established in a scheduling order havepassed; it may file it at any time.65

There have been several statutory amendments setting forth the time for serving and filingaffidavits and oppositions; the statute currently refers to Uniform District Court Rule 9.9 to establishthose times. The Supreme Court has made it clear that these timelines are mandatory. In Buggage66

v. Volks Constructors, the court found that the court of appeal erred as a matter of law in considering67

a late-filed opposition to the motion for summary judgment. The opposition had been disallowed bythe trial court when it was filed a few minutes before the scheduled hearing on the motion. And inNewsome v. Homer Memorial Medical Center, the court found that the trial court abused its68

discretion in granting a continuance of a long-pending medical malpractice case to allow the plaintiffto timely file her expert’s affidavit.

Recent legislation has attempted to change the way issues are identified and evidence issubmitted on summary judgment. The long-standing rule was that the court on summary judgment

2010 La. Acts No. 690.69

Id.70

2012 La. Acts No. 257.71

Id.72

2012 La. Acts No. 741.73

Aydell v. Sterns, 98-3135 (La. 2/26/99), 731 So.2d 189, 189-90 (per curiam); Levine v.74

TK Valve & Mfg. Co., 550 So.2d 620 (La. 1989) (per curiam).

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could consider matters “on file.” Some developed the perception that this provision was too broad,in that it empowered trial court judges to search through the record for any basis to grant summaryjudgment, whether it was argued by the mover or not. This led first to the 2010 amendment, whichadded a new paragraph E, which provided, “A summary judgment shall be rendered or affirmed onlyas to those issues set forth in the motion before the court at that time.” The amendment also added69

a new paragraph F, designed to make summary judgment effective as to all parties throughout the case.It provided:

When the court determines, in accordance with the provisions of this Article,that a party or nonparty is not negligent, not at fault, or did not cause, whether in wholeor in part, the injury or harm alleged, that party or nonparty may not be considered inany subsequent allocation of fault. Evidence shall not be admitted at trial to establishthe fault of that party or nonparty nor shall the issue be submitted to the jury. ThisParagraph shall not apply when a summary judgment is granted solely on the successfulassertion of an affirmative defense in accordance with Article 1005.70

These measures were deemed inadequate, which led to another attempt to fix these perceivedproblems in 2012. That act deleted the words “on file” from paragraph B(2), in an attempt to limit thedecision to the matters specifically placed before the court on the motion. It also explicitly stated,71

“Only evidence admitted for purposes of the motion for summary judgment shall be considered by thecourt in its ruling on the motion.” A separate 2012 amendment required the trial court to provide72

reasons for denial of a motion for summary judgment.73

The first 2012 amendment caused problems in those areas of the state where it was notcustomary to offer, file and introduce one’s evidence on summary judgment. Because of the “on file”language, the supreme court had held that documents submitted in support of or in opposition tosummary judgment need not be formally introduced into evidence. Despite this, the practice74

developed in the first circuit (and perhaps elsewhere) of formally introducing all of the summaryjudgment evidence; this was in response to first circuit cases suggesting that documents attached to

Dyes v. Isuzu Motors, 611 So.2d 126, 128 (La. App. 1st Cir. 1992).75

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memoranda were not in the record because memoranda are not technically pleadings. Accordingly,75

there was now a new requirement that documents be formally introduced into evidence that wasinconsistent with the practices elsewhere in the state. The 2013 amendment, among other things, fixesthis problem by deeming all attachments to the motion or the opposition memorandum admitted intoevidence.

Conclusion

From a time where it was used almost exclusively in suits on notes, summary judgment hasevolved into a substantial tool for the resolution of even complex cases. Proper application of the rulesis even more important now to be sure that such cases are truly appropriate for summary judgment dueto the nonexistence of factual issues.

Reprinted from October 2013 Louisiana Advocates • Copyright 2014, Louisiana Association for Justice • Page 1 of 4

La. C.C.P. Art. 966 has always allowed summaryjudgment when there is nogenuine issue of materialfact as to any element of acause of action necessaryfor recovery. But how doesone know what elementsare at issue on any givenmotion? Perhaps the ulti-mate nightmare scenario illustrating this uncer-tainty was presented inMcKee v. Wal-Mart Stores,Inc., 06-1672 (La.App. 1 Cir.6/8/07), 964 So.2d 1008, writdenied, 07-1655 La.10/26/07),966 So.2d 583.That case, which our law

firm handled, involved anunconventional antibioticprescription to a child thatcaused the child to developtoxic epidermal necrosis. Inthat part of the litigation,the plaintiff alleged negli-gence on the part of thepharmacist who filled theprescription in failing tocomply with a regulatory re-quirement that she counselcustomers regarding prescription medica-tions. The plaintiff claimed that had therebeen such a consultation, it would have re-sulted in a call to the pediatrician and, in alllikelihood, a change of the prescription to amore conventional and less-risky antibiotic.After the pediatrician (who was a defen-

dant in a separate medical review panelproceeding) testified that he would not havechanged the prescription, the pharmacymoved for summary judgment on the issueof cause-in-fact. Plaintiff marshaled all of

her evidence, but she focused her arguments onthe cause-in-fact argumentset forth in the motion andsupporting memorandum. At the hearing, the trial

judge granted summaryjudgment based upon hisconclusion that the pharmacist — despite heradmission that she had notcounseled the mother anddespite the legal require-ment that she do so — wasnot negligent. Attempts topoint out to the court in amotion for new trial thatthis issue was not beforethe court on the motion fellon deaf ears, so plaintiffappealed the case. On appeal, the plaintiff

briefed both cause-in-factand negligence arguments,but the court of appeal af-firmed on the grounds thatthe alleged negligence wasnot the legal cause of thechild’s injury. On rehearingand in a writ application, theplaintiff briefed that issue,

too, to no avail. The plaintiff was alwaysmaking her argument to judges who had al-ready made up their mind on an issue with-out the benefit of briefing by either side.1

During the last four legislative sessions,Rep. Neil Abramson (D-New Orleans), in re-sponding to concerns and requests fromlawyers and the judiciary, has attempted todelineate specifically what issues and evi-dence the court may consider on a motion forsummary judgment and thus what issues andevidence for which counsel have to prepare.

A streamlined, and one hopesimproved, procedure for summary judgment — A précisBy Donald W. Price and B. Scott Andrews; Dué, Price, Guidry, Piedrahita & Andrews; Baton Rouge, Louisiana

Donald Price

Scott Andrews

Rep. Abramson consulted with the legislation committee of LAJ and the Louisiana State Bar Association to rewrite thesummary judgment procedure to be more user-friendly topractitioners and to ensure fundamental fairness through express notice of the issues before the court. Effective August1, 2013,2 La. C.C.P. Art. 966 specifies that on a motion for sum-mary judgment:

1) Summary judgment may be rendered or affirmed onlyas to those issues set forth in the motion for summaryjudgment under consideration by the court at that time.

2) Only evidence admitted for purposes of the motion forsummary judgment may be considered by the court inits ruling on the motion.

A. To be considered by the court, pleadings, deposi-tions, answers to interrogatories, admissions, andaffidavits must be admitted for purposes of the motion for summary judgment.

B. Any evidence cited in and attached to the motionfor summary judgment or memorandum filed by anadverse party is deemed admitted for purposes ofthe motion for summary judgment unless excludedin response to an objection raised in a memoran-dum or written motion to strike.

Here is a brief summary of the recent amendments toArt. 966 and the need for and effect of each:

1. Summary judgment shall be rendered or affirmedonly as to those issues set forth in the motion underconsideration by the court at that time.The plain purpose of the requirements of the Code of

Civil Procedure and Uniform District Court Rule 9.9 has always been to place the party opposing a motion for sum-mary judgment on notice concerning the issues the moveris raising so that the opponent can marshal and presentcountervailing evidence on those issues. Or, at least that iswhat most practitioners realistically believed; in fact, asstated previously, many courts considered any issue in thecase fair game on a summary judgment. Going beyond the scope of the motion presented deprives

the adverse party of the opportunity to present evidence andargument, and it is fundamentally unfair. Therefore, by 2010La. Acts No. 690,3 the Louisiana Legislature amended La.C.C.P. Art. 966(E) to clarify that “a summary judgment shallbe rendered or affirmed only as to those issues set forth inthe motion under consideration by the court at that time.” By 2013 La. Acts No. 391, the provision was moved to

paragraph (F), and the word “shall” was changed to “may.”The change is not intended to empower the trial court withdiscretion over what issues can be considered, but rather toremove the unwarranted perception that was percolating insome legal circles that summary judgment “shall” be

granted in all cases and to clarify that the provision limitsthe issues that may be considered. This express notice of the issues requirement is consis-

tent with Uniform District Court Rule 9.9, which requiresthe filing of a memorandum in support of a motion for sum-mary judgment that contains:

1) A list of the essential legal elements necessary for themover to be entitled to judgment;

2) A list of the material facts that the mover contendsare not genuinely disputed; and

3) A reference to the document proving each such fact, with the pertinent part containing proof of thefact designated.

Thus, the issues set forth in the motion for summaryjudgment — as more specifically delineated in the memo-randum in support and the statement of issues as to whichthere is purportedly no genuine factual issues — are theonly issues that may be considered by the court. The movermust specify the particular issue, theory of recovery, causeof action, or defense for which summary judgment is re-quested. So, when the motion for summary judgment seeksa determination that plaintiff cannot prove the cause-in-fact element of his/her case, the court may only considerthe cause-in-fact element of the case. The court may notconsider any other elements of the plaintiff ’s case. Simply stating in the motion that “summary judgment

should be granted for the reasons set forth in the memoran-dum in support” is insufficient to meet either the require-ments of the Uniform District Court Rules or the expressnotice of the issues requirement of Art. 966(F), and that willrender the motion procedurally defective.

2. Only evidence admitted for purposes of the mo-tion for summary judgment may be considered by thecourt in its ruling on the motion.Prior to August 15, 2012, La. C.C.P. Art. 966(B)(2) provided

for consideration by the court of “pleadings, depositions, an-swers to interrogatories, and admissions on file, togetherwith the affidavits. . . .” The “on file” provision was aholdover from the days when all discovery documents werefiled in the suit record, and it was intended to allow consider-ation of these enumerated documents as long as the docu-ments were properly referenced in accordance with UniformDistrict Court Rules 9.9 and 9.10 and were in the record. The “on file” provision was also intended to mean that

the enumerated documents in the record did not have to beformally admitted into evidence at the hearing on the mo-tion for summary judgment.Because a written motion for summary judgment is a

“pleading” under La. C.C.P. Art. 852, many courts consideredany evidence attached to the motion to be part of that plead-ing for all purposes and, therefore, “on file” and admissible


without the need to be formally introduced into evidence atthe hearing. La. C.C.P. Art. 853. See Arnette v. NPC Services,Inc., 2000-1776 (La.App. 1 Cir. 2/15/02), 808 So.2d 798, 801; An-derson v. Allstate Ins. Co., 93-1102 (La.App. 1 Cir. 4/8/94), 642So.2d 208, 213 (on rehearing), writ denied, 94-2400 (La.11/29/94), 646 So.2d 404; and Hutchinson v. Knights of Colum-bus, Council No. 5747, 03–1533 (La. 2/20/04), 866 So.2d 228, 232(“Affidavits in support of or in opposition to motions for sum-mary judgment must be filed into evidence at the hearing onthe motion or filed into the record in order for the affidavitsto be part of the record on appeal.”). Since memorandums are not pleadings, many courts

required any evidence attached to them to be admitted formally into evidence at the hearing even when the memo-randum and attached documents were filed into the record.See Dyes v. Isuzu Motors, Ltd. in Japan, 611 So.2d 126, 128(La.App. 1 Cir. 1992). c.f. Aydell v. Sterns, 98–3135 (La.2/26/99), 731 So.2d 189 (information contained in affidavitsand depositions submitted as attachments to a memoran-dum were properly before the trial court and appellate courtfor purposes of a motion for summary judgment). Unfortunately, the words “on file” led some courts to con-

sider any documents filed in the suit record, even when theywere not referenced or relied on in the summary judgmentpleadings (as required by Uniform District Court Rules 9.9and 9.10). This led to especially unfair consequences whencourts, as described in the preceding section, relied on unref-erenced evidence in the suit record to support summaryjudgment on issues not asserted by the mover. By 2012 La. Acts No. 257 (HB 459 by Rep. Abramson), the

words “on file” were removed to indicate that more thanbeing “on file” is required for these enumerated documentsto be considered for the purposes of the summary judg-ment, and 966(E)(2) was added to provide express notice ofwhat evidence is to be considered on the motion:

E.(2) Only evidence admitted for purposes of the motionfor summary judgment shall be considered by thecourt in its ruling on the motion.

The unintended consequence of this amendment, how-ever, was that all evidence, including the enumerated docu-ments attached to a motion for summary judgment, arguablyhad to be admitted formally into evidence at the hearing onthe motion for summary judgment in order to be consideredby the court. See Marengo v. Harding, 13-47 (La.App. 5 Cir.5/16/13), ___ So.3d___. This unintended consequence, coupledwith the inconsistent evidentiary procedures that had beenin practice around the state, provided too many traps for theunwary that caused many a sleepless night for lawyers whoforgot to move the exhibits attached to their summary judg-ment pleading into evidence at the hearing. 2013 Acts No. 391 permanently shut this trap. The follow-

ing changes were made to Art. 966 (additions in bold,

deletions in stikeout) to streamline the procedure, whilepreserving valid objections to incompetent evidence:

B.(2) The judgment sought shall be rendered forthwith ifthe pleadings, depositions, answers to interrogatories, andadmissions, together with the affidavits, if any, admittedfor purposes of the motion for summary judgment,show that there is no genuine issue as to material fact, andthat mover is entitled to judgment as a matter of law. ***F.(2) Only evidence admitted for purposes of Evidencecited in and attached to the motion for summary judg-ment shall or memorandum filed by an adverse partyis deemed admitted for purposes of the motion forsummary judgment unless excluded in response toan objection made in accordance with Subparagraph(3) of this Paragraph. Only evidence admitted forpurposes of the motion for summary judgment maybe considered by the court in its ruling on the motion.

(3) Objections to evidence in support of or in opposition to a motion for summary judgmentmay be raised in memorandum or written motion to strike stating the specific groundstherefor.

The practical effect of these amendments should be eas-ily understood by all and should result in a uniform proce-dure in all courts. All evidence — including pleadings,depositions, answers to interrogatories, admissions, and affidavits — must be admitted into evidence for purposes ofthe motion for summary judgment to be considered by thecourt. If cited in and attached to the motion (NOT themover’s memorandum) or the opposing memorandum, theenumerated documents are “deemed admitted” into evi-dence, unless excluded in response to a proper objection,and the documents do not have to be formally admitted intoevidence at the hearing. If these documents are already in the suit record, they do

not have to be refiled with the motion or adverse memoran-dum, but any such document that is not attached to the mo-tion or memorandum must be admitted into evidence at thehearing. Keep in mind that Uniform District Court Rules 9.9and 9.10 require that the pertinent portions of the documentsin support of or in opposition to the motion, including thosealready in the suit record, be referenced in the memoranda.Any objection to opposing evidence must be raised in

memorandum or written motion to strike. Verbal objectionsare not allowed. Failure to timely object in writing waivesany objection to the admissibility of documents cited in andattached to the motion or opposing memorandum.One important remaining ambiguity centers around the

fact that memoranda are not required to be filed in many judicial districts.4 The intent of the “deemed admitted” safeguard is to dispense with the need to formally introduce


certain evidence at the hearing. But if the adverse memo-randum is also not filed with the clerk of court, the evi-dence cited and attached to it that are now “deemedadmitted” unless properly objected to do not become part ofthe suit record. So, as a practical matter, the adverse party should always

either admit the evidence cited in and attached to the adversememorandum at the hearing or should file the adverse memorandum with the clerk of court so that any evidencethat is “deemed admitted” becomes part of the suit record.

Guidelines for the attorneyWhen moving for summary judgment, follow these

guidelines:

1. Specify in the motion for summary judgment, the par-ticular issue, theory of recovery, cause of action, ordefense for which summary judgment is requested.

2. Cite and attach evidence to the motion in order for itto be deemed admitted into evidence without the needto formally introduce the evidence at the hearing.

3. In the memorandum in support, provide:

a. A list of the essential legal elements necessary forthe mover to be entitled to judgment;

b. A list of the material facts that the mover contendsare not genuinely disputed; and

c. A reference to the document proving each such fact with the pertinent part containing proof of thefact designated.

4. At the hearing on the motion for summary judgment,move into evidence any evidence referenced in thememorandum in support that is already in the suitrecord but not cited in and attached to the motion forsummary judgment.

5. Object to the adverse party’s incompetent or inadmis-sible evidence in a reply memorandum or in a writtenmotion to strike.

When opposing a motion for summary judgment,follow these guidelines:

1. Object to mover’s incompetent or inadmissible evidence in the memorandum in opposition or in awritten motion to strike.

2. Cite and attach evidence to the memorandum in opposition in order for it to be deemed admitted intoevidence without the need to formally introduce theevidence at the hearing.

3. In the memorandum in opposition, provide:

a. A list of the material facts that the opponent con-tends are genuinely disputed; and

b. A reference to the document proving that each such fact is genuinely disputed, with the pertinentpart designated.

4. The adverse party may reference any evidence cited inand attached to the motion for summary judgment thatis deemed admitted without the need to attach it to thememorandum in opposition and without the need toformally introduce the evidence at the hearing.

5. File the opposition memorandum and attached docu-ments into the record even if not required by localrule, or, at the hearing on the motion for summaryjudgment, move into evidence any evidence refer-enced in the memorandum in opposition that is al-ready in the suit record but not deemed admitted bybeing cited in and attached to the motion for summaryjudgment or the memorandum in opposition.

Endnotes1. The relatively happy ending is that the plaintiff eventually

obtained a verdict in excess of the malpractice cap againstthe treating pediatrician for prescribing the drug.

2. 2013 La. Acts No. 391 (HB 589 by Rep. Abramson), effectiveAugust 1, 2013. With the absence of legislative expression tothe contrary, the procedural or interpretative changes to La. C.C.P. Art. 966 apply prospectively and retroactively. See La. C.C. Art. 6.

3. 2010 La. Acts No. 690 (HB 260 by Rep. Abramson).4. Uniform District Court Rule 9.9(e): “Any party may, but need

not, file a copy of the memorandum with the clerk of court.See Rule 9.4 and Appendix 9.4 to determine whether a par-ticular judicial district requires that memoranda be filed withthe clerk of court or sent directly to the presiding judge.”


CCP Article 966 Motion for Summary Judgment Checklist Robert E. Kleinpeter

Kleinpeter & Schwartzberg, L.L.C.

Notes: • Summary judgment may be rendered only as to the issues set forth in the Motion, and only admitted evidence

may be considered by the court. • MSJ can be filed by Plaintiff after Defendant has answered, and by Defendant at any time. • Court shall render judgment within a reasonable time, and at least 10 days before trial.

Before the Hearing __ Motion has attached Order and states 1) whether or not the case is set for trial and, if so, the trial date; and (2)

that no testimony will be offered at the hearing. (District Court Rule 9.8). __ Motion specifies the particular issue, theory of recovery, cause of action, or defense for which summary

judgment is requested. __ Supporting Memo contains (District Court Rule 9.10): __ List of essential legal elements necessary for the mover to win; __ List of material facts the mover contends are not genuinely disputed; and

__ Reference to the document proving each undisputed fact, with the pertinent part designated. __ Supporting documents (affidavits, pleadings, depositions, answers to interrogatories, admissions) are cited in and

attached to the Motion. __ Motion, Supporting Memo, and Attachments are furnished to trial judge and served (by sheriff) on all parties at

least 15 calendar days before the hearing. (District Court Rule 9.9). __ Opposing Memo contains (District Court Rule 9.10): __ List of material facts the opponent contends are genuinely disputed; and

__ Reference to the document proving each undisputed fact, with the pertinent part designated. __ Attachments to the Motion and Attachments to the filed Opposing Memo will be deemed admitted for purposes

of the MSJ, unless excluded in response to an objection:

__ Raise objection in the opposing/reply memo; or __ Raise objection in a written motion to strike.

__ Opposing Memo and Attachments are furnished to trial judge and served (by mail, delivery, or electronic means)

on all parties at least 8 calendar days before the hearing. (District Court Rule 9.9). __ Reply Memo is furnished to trial judge and served (by mail, delivery, or electronic means) on all parties by 4:00

p.m. on the day that is two week days before the hearing. (District Court Rule 9.9). At the Hearing __ Mover: formally introduce any evidence that is filed in the suit record but not attached to the Motion. __ Opponent: either file the Opposing Memo and Attachments before the hearing, or formally introduce the

Attachments into evidence at the hearing. After the Hearing __ If motion is denied and no oral or written reasons provided, request written reasons within 10 days of the denial.

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