Summary Judgment in Louisiana Part I: A Historic Perspective Part II: Overview

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1 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 Evidence and Procedure Seminar LOUISIANA JUDICIAL COLLEGE LOUISIANA ASSOCIATION FOR JUSTICE February 20, Windsor Court Hotel. New Orleans, Louisiana

2 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, both statutory and jurisprudential. Given its importance in current civil practice, a good working knowledge must be maintained of the ins-and-outs of the procedure. Working from the theory that one cannot know where one is without some understanding of how they got there, this paper is intended to provide a history of summary judgment procedure in Louisiana, making note of the signs of change along the road. The paper begins by discussing the origins and development of summary judgment procedure in 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 returns to the federal system, examining the United States Supreme Court s influential 1986 decisions interpreting Federal Rule 56. It next looks at how those decisions bore fruit in Louisiana in the form of 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 for 1 summary disposition of cases involving bills of exchange and promissory notes. This procedure was expanded to include other cases involving the collection of debt or liquidated demands in 2 money, and for the recovery of land in some landlord-tenant cases. Similar expedited procedures were adopted and variously expanded or narrowed in numerous American states and colonies of the British empire. 3 In 1938, the adoption of Rule 56 of the Federal Rules of Civil Procedure created a summary judgment process that applied to all actions, including those against the United States or an officer 4 or agency thereof. It was intended to be a method for promptly disposing of actions in which 1 Clark & Samenow, The Summary Judgment, 38 Yale L.J. 423, 424 (1929). 2 Id. at Id. at F.R.C.P. 56, 1937 Advisory Committee Notes. 1

3 5 there is no genuine issue of material fact. Louisiana commentators praised the provision, stating, A similar broadening of the scope of the present Louisiana procedure on the subject would be a material improvement. 6 Almost immediately, conflicts developed between judges who were eager to use the new procedure to resolve as many cases as possible and those who feared overuse of the procedure would 7 pose a threat to justice that deprived litigants of their days in court. These philosophical conflicts eventually settled in to a practical procedure of expanded actual use of summary judgment, but with numerous jurisprudential caveats about when, and under what circumstances, summary judgment would be appropriate. In an excellent article containing a detailed discussion of the history of Rule 56, Judge Patricia Wald summarized the federal courts approach to summary judgment once the initial disputes about its use had been more or less resolved: To defend against summary judgment, it would not be enough to point out the possibility of a jury not believing the evidence presented by the proponent; the defendant must produce evidence himself to show there was a factual dispute.... [C]ourts looked upon summary judgment with disfavor in certain kinds of cases or for certain types of issues. The presumptively off-limits areas included antitrust, patents, negligence, civil rights, and broadly conceived categories labeled important public issues or complex cases, primarily because such areas disproportionately involved questions of credibility, motive, state of mind and intent.... The prevailing wisdom for many decades was that summary judgment was the exception, not the rule, and courts were expected to be tougher on the movants than on the parties resisting it. A movant was required to point to actual evidence in the 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 5 Id. 6 Flory & McMahon, The New Federal Rules and Louisiana Practice, 1 La. L. Rev. 45, 74 (1938). 7 Unlike the Louisiana constitution, the Seventh Amendment guarantees a right to jury trial in civil cases, and this has been interpreted as requiring jury trials in all cases where such trials 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 Court has never confronted the issue of the constitutionality of summary judgment procedure under the Seventh Amendment. A colorable argument can be made that summary judgment is not constitutional in many cases, on the grounds that it differs significantly from any other procedural device that existed to remove factual determinations from juries under the common law in See, e.g., Thomas, Why Summary Judgment Is Unconstitutional, 93 Va. L. Rev. 139 (2007). 2

4 of inferences to be drawn from the undisputed facts was supposed to favor the party opposing the motion. Assessing the cases, Professor Wright concluded, [J]udges will be quite demanding in their examination of the moving party s papers, but will treat 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 of 9 French, Spanish, and common law practice. Dean McMahon deemed Edward Livingston s 1825 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 administrative 10 provisions of Anglo-American origin. The Code of Practice was updated in A significant historical feature of this continental heritage has been the relative absence of civil jury trials until 11 recently, compared to the experience in other states. In the culmination of a decade-long effort on the part of the Louisiana State Law Institute and its reporters, the Legislature replaced the Code of Practice with a new Code of Civil Procedure in 12 Act 15 of The Code of Civil Procedure drew from and expanded upon the Federal Rules of Civil Procedure. This included, in articles 966 through 969, a procedure for summary judgment Wald, Summary Judgment at Sixty, 76 Tex. L. Rev. 1897, , quoting 10 Charles 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). 9 McMahon, The Louisiana Code of Civil Procedure, 24 La. L. Rev. 1, 1-2 (1960). 10 Id. at Flory & McMahon, The New Federal Rules and Louisiana Practice, 1 La. L. Rev. 45, 60 & n.106 (1938). 12 McMahon, supra note 9, at The text of the original articles read: Art. 966: The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff s motion may be made at any time after the answer 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 time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, and 3

5 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 well pleaded, 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 Louisiana articles and Federal Rule 56. Unlike the federal rule, which applies to all actions, article limited the availability of summary judgment in certain family law cases. Further, while Rule 56 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 was excluded in an attempt to simplify summary judgment and because Louisiana then had few civil jury admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material 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, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may 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 he cannot present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions 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 presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney 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 and shall be rendered and signed in the same manner and with the same effect as if a trial had been had upon evidence regularly adduced. If the judgment does not grant mover all of the relief prayed for, jurisdiction shall be retained in order to adjudicate on mover s right to the relief not granted on motion. An appeal does not lie from the court s refusal to render any judgment on the pleading or summary judgment. Art. 969: Judgments on the pleadings and summary judgments shall not be granted in any action for divorce, separation from bed and board, or annulment of marriage, nor in any case where the community, paraphernal, or dotal rights may be involved in an action between husband and wife. 14 La. C.C.P. article 966, Official Revision comment (a) (1960). 15 La. C.C.P. article 969; Comment, Summary Judgment, 21 La. L. Rev. 209, 211 (1960) 4

6 trials. 16 III. Jurisprudential Response and Statutory Amendments Louisiana courts, like their federal colleagues, approached summary judgment cautiously and with 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 and pronouncements about the methodology and propriety of summary judgment in particular cases originated in the intermediate appellate courts and found their way into the opinions and pronouncements of the Louisiana Supreme Court on summary judgment procedure. After an initial case that seems to suggest that the party opposing summary judgment could 17 simply rely on the allegations of his petition, the Louisiana Supreme Court s first extended 18 discussion of the new procedure was in Kay v. Carter. The court first determined that it was appropriate to consider federal jurisprudence and authorities concerning the application of summary 19 judgment procedure. The court then endorsed several of those principles, including placing the burden of proof upon the mover, and that any doubt about the propriety of summary judgment must 20 be resolved against the motion. Quoting from Moore s Federal Practice, the court stated, If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. 21 Over the next three decades, these themes of caution were repeated and expanded upon. The court made it clear that while federal decisions were instructive, they were not binding, and summary judgments could not be used for piecemeal trial of cases by ruling on particular parts of a party s 22 claims. As a general rule, summary judgment was required to grant a party at least some of the ultimate relief for which he had prayed; it was not proper for the resolution of preliminary legal 23 issues. The burden on the mover was described as strict, and requiring a showing that excluded 16 Comment, supra note 15, at Lee v. City of Baton Rouge, 243 La. 850, , 147 So.2d 868, 871 (1962) La. 1095, 150 So.2d 27 (1963) La. at 1102, 150 So.2d at La. at , 150 So.2d at La. at , 150 So.2d at Stevens v. State Mineral Board, 255 La. 857, , 233 So.2d 542, (1970). 23 Dryades Savings & Loan Ass n v. Lassiter, 400 So.2d 894, 896 (La. 1981). 5

7 24 any real doubt that there were factual issues. The papers of the mover were to be closely 25 scrutinized, while those of the opponent were to be indulgently treated. Where there was a choice of reasonable inferences to be drawn from the facts, the inferences were to be drawn in favor of the 26 party opposing the motion. Summary judgment was considered rarely appropriate for the 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 summary resolution. These rules were enforced by de novo review on appeal. On the other hand, some issues were deemed particularly appropriate for summary adjudication. Lack of coverage under an insurance policy was an appropriate issue forsummary 30 judgment so long as there was no reasonable reading of the policy that afforded coverage. And where general damages are limited by a cap, as is the case with medical malpractice cases, the court has held that those damages may be fixed by summary judgment if it is clear that the actual damages 31 would exceed the cap, as in a case involving a quadriplegic. And in defamation cases, in what will be seen to have been an impressive foreshadowing of future developments, where the clear and 32 convincing evidence standard of New York Times Co. v. Sullivan applied, the plaintiff was required 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 made relatively few substantive amendments to the articles. The effect of the amendments, however, was to gradually make summary judgment available in more contexts. In 1966, interrogatory answers were added to the types of documentary evidence that could be used on summary judgment, and it was made clear that once the mover had supported its motion, the opposing party could not rest on 24 Industrial Sand & Abrasives v. Louisville & Nashville R. Co., 427 So.2d 1152, 1154 (La. 1983). 25 Id. 26 Duvalle v. Lake Kenilworth, 396 So.2d 1268, 1269 (La. 1981). 27 Penalber v. Blount, 550 So.2d 577, 583 (La. 1989). 28 Folse v. Western Atlas International, 593 So.2d 341, 343 (La. 1992). 29 Schroeder v. Board of Supervisors, 591 So.2d 342, 345 (La. 1991). 30 Reynolds v. Select Properties, Ltd., (La. 4/11/94), 634 So.2d 1180, Bijou v. Alton Ochsner Medical Foundation, (La. 9/5/96), 679 So.2d 893, U.S. 254 (1964). 33 Mashburn v. Collin, 355 So.2d 879, 890 (La. 1977). 6

8 34 her pleadings but was required to come forth with evidence. In 1983, article 966 was amended to allow an interlocutory partial summary judgment on the issue of liability, even if factual issues 35 existed as to damages. A year later, this provision was amended to allow the summary judgment 36 on liability to be a final judgment. In 1992, a partial summary judgment on the issue of insurance 37 coverage was authorized. In 1986, article 969 was amended to allow summary judgment in certain divorce proceedings, provided both parties were represented by counsel and the parties stipulated and 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 skepticism toward the use of summary judgment since its adoption in That came to a halt in The United 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 Japanese television manufacturers by American electronics companies, Matsushita Electrical Industrial Co. 39 v. Zenith Radio Corp. Ignoring the concern over the use of summary judgment in complex cases 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 of conspiracy and the defendants were entitled to summary judgment Anderson v. Liberty Lobby was a libel case brought by a public figure. The majority equated the issue on summary judgment to the issue on directed verdict, that is, whether a reasonable 42 factfinder could reach a verdict for the nonmoving party. Finding that the inquiry necessarily implicates the substantive evidentiary standard of proof, the summary judgment inquiry as to whether a genuine issue exists requires a determination of whether a reasonable jury could return a verdict La. Acts No La. Acts No La. Acts No La. Acts No La. Acts No U.S. 574 (1986) U.S. at U.S. 242 (1986) U.S. at

9 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 her 44 husband, the plaintiff in Celotex Corp. v. Catrett sued a number of manufacturers alleging that his death was caused by exposure to her products. After discovery, the manufacturers all moved for summary judgment. They did not introduce any evidence on their behalf; they simply argued that the plaintiff was unable to prove that her husband was exposed to their products. All of the motions were granted by the trial court, and the plaintiff appealed only that in favor of Celotex. The court of appeals reversed on the basis that the defendant had not properly supported its motion. The Supreme Court reversed, holding that the party who will bear the burden of proof on a given issue at trial must establish the existence of a triable factual issue that element of the case on summary 45 judgment. The court thus remanded to the court of appeals for reconsideration of the summary judgment issues. 46 The famous trilogy is hardly a monolith. Each case had different, and close, majorities, and those who wrote some dissented in others. Nevertheless, as Judge Wald states, it was clear that the Supreme Court had reversed three denials of summary judgment in one term, and the invocation of the general rule of Federal Rule of Civil Procedure 1 that the rules were to be interpreted to secure the just, speedy and inexpensive determination of every action seemed to be a sign that summary judgments 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, the supreme 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 of Governor Foster s tort reform special session U.S. at 257. This is similar to the standard that had been adopted by the Louisiana Supreme Court in Mashburn v. Collin, supra note U.S. 317 (1986) U.S. at On remand, the court of appeals affirmed its finding that summary judgment was inappropriate. Catrett v. Johns-Manville Sales Corp., 826 F.2d 33 (D.C. Cir. 1987), cert. denied, 484 U.S (1988). 47 Wald, supra note 8, at Sassone v. Elder, 626 So.2d 345, (La. 1993) 8

10 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, and inexpensive determination of every action, except those disallowed by Article The procedure is favored and shall be construed to accomplish these ends. Paragraph C was added to reallocate the burden of production of evidence on the motion to the 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 shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to 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 ruled upon at least ten days before trial (paragraph D), and then, oddly, concluded with paragraph G by providing, Notwithstanding any other provision of this Article to the contrary, the burden of proof 51 shall remain with the mover. The amended article became effective on signature by the Governor on May 1, The following year, the apparent contradictions between paragraph C and paragraph G were resolved by the adoption of a new paragraph C(2), which provided: The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact La. Acts No. 9, 1 (1st Extraordinary Session). 50 Id. 51 Id La. Acts No. 483, 1. 9

11 53 The act repealed paragraph G. The act also amended paragraph E to allow summary judgments dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire 54 case. Finally, section 4 of the act stated that the purpose of the amendments to article 966 was to clarify Acts 1996, No. 9, 1 of the First Extraordinary Session of 1996 and to legislatively overrule all cases inconsistent with Hayes v. Autin, (La. App. 3rd Cir. 12/26/96), 685 So.2d In that case, then-judge Knoll held that the 1996 amendments leveled the playing field on summary judgment by requiring each parties evidence to be scrutinized equally and by removing the 56 jurisprudential presumption in favor of trial on the merits. She then went on to hold that the 1996 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 language to 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 Westlaw search for summary judgment cases by the Louisiana Supreme Court returns 576 such cases in the thirty-five years before the effective date of the 1996 amendment, but it returns 581 in the eighteen years since. Despite the changes, many of the old rules of summary judgment still apply. Factual inferences reasonably drawn from the evidence must still be construed in favor of the nonmoving 59 party, and all doubt must be resolved in the nonmoving party s favor. Credibility determinations 60 cannot be made on summary judgment. Courts are still not to weigh evidence on summary 53 Id., Id., Id., Hayes v. Autin, , p. 6 (La. App. 3 Cir. 12/26/96), 685 So.2d 691, 694, writ denied, (La. 3/14/97), 690 So.2d Id. at pp. 6-7, 685 So.2d at See, e.g., Taylor v. Rowell, (La. 5/18/99), 736 So.2d 812, Willis v. Medders, , p. 2 (La. 12/8/00), 775 So.2d 1049, Hutchinson v. Knights of Columbus, Council No. 5747, , p. 8 (La. 2/20/04), 866 So.2d 228,

12 judgment. 61 One of the most important developments in summary judgment procedure was the supreme 62 court s recognition, in Independent Fire Ins. Co. v. Sunbeam Corp. that article does not preclude expert opinion testimony in the form of an affidavit or deposition submitted in support of or opposition to a motion for summary judgment. If there is no credibility determination is at issue, the trial judge must consider this evidence if it would be admissible at trial. If qualifying evidence is submitted in opposition to a motion for summary judgment which creates a dispute as to a genuine issue of material 63 fact, the motion for summary judgment should be denied. In cases where expert testimony is required, such as non-obvious medical malpractice, the failure of the plaintiff to produce an expert 64 affidavit is grounds granting summary judgment. And when expert testimony is necessary, the defendant need not wait to file its motion until expert deadlines established in a scheduling order have passed; it may file it at any time. 65 There have been several statutory amendments setting forth the time for serving and filing affidavits and oppositions; the statute currently refers to Uniform District Court Rule 9.9 to establish 66 those times. The Supreme Court has made it clear that these timelines are mandatory. In Buggage 67 v. Volks Constructors, the court found that the court of appeal erred as a matter of law in considering a late-filed opposition to the motion for summary judgment. The opposition had been disallowed by the trial court when it was filed a few minutes before the scheduled hearing on the motion. And in 68 Newsome v. Homer Memorial Medical Center, the court found that the trial court abused its discretion in granting a continuance of a long-pending medical malpractice case to allow the plaintiff to timely file her expert s affidavit. Recent legislation has attempted to change the way issues are identified and evidence is submitted on summary judgment. The long-standing rule was that the court on summary judgment 61 Suire v. Lafayette City-Parish Consol. Government, , p. 11 (La. 4/12/05), 907 So.2d 37, , pp (La. 2/29/00), 755 So.2d 226, The legislature amended article 967 to make the allowance of expert opinions explicit in See 2003 La. Acts No Samaha v. Rau, , pp. 5-6 (La. 2/26/08), 977 So.2d 880, MB Industries v. CNA Ins. Co., , pp (La. 10/25/11), 74 So.3d 1173, La. C.C.P. article 966(B)(1) , p. 1 (La. 5/5/06), 928 So.2d 536, 536 (per curiam) (La. 4/9/10), 32 So.3d 800 (per curiam). 11

13 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 summary judgment, whether it was argued by the mover or not. This led first to the 2010 amendment, which added a new paragraph E, which provided, A summary judgment shall be rendered or affirmed only 69 as to those issues set forth in the motion before the court at that time. The amendment also added 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 whole or in part, the injury or harm alleged, that party or nonparty may not be considered in any subsequent allocation of fault. Evidence shall not be admitted at trial to establish the fault of that party or nonparty nor shall the issue be submitted to the jury. This Paragraph shall not apply when a summary judgment is granted solely on the successful assertion of an affirmative defense in accordance with Article These measures were deemed inadequate, which led to another attempt to fix these perceived problems in That act deleted the words on file from paragraph B(2), in an attempt to limit the 71 decision to the matters specifically placed before the court on the motion. It also explicitly stated, Only evidence admitted for purposes of the motion for summary judgment shall be considered by the 72 court in its ruling on the motion. A separate 2012 amendment required the trial court to provide 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 not customary 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 to 74 summary judgment need not be formally introduced into evidence. Despite this, the practice developed in the first circuit (and perhaps elsewhere) of formally introducing all of the summary judgment evidence; this was in response to first circuit cases suggesting that documents attached to La. Acts No Id La. Acts No Id La. Acts No Aydell v. Sterns, (La. 2/26/99), 731 So.2d 189, (per curiam); Levine v. TK Valve & Mfg. Co., 550 So.2d 620 (La. 1989) (per curiam). 12

14 75 memoranda were not in the record because memoranda are not technically pleadings. Accordingly, there was now a new requirement that documents be formally introduced into evidence that was inconsistent with the practices elsewhere in the state. The 2013 amendment, among other things, fixes this problem by deeming all attachments to the motion or the opposition memorandum admitted into evidence. Conclusion From a time where it was used almost exclusively in suits on notes, summary judgment has evolved into a substantial tool for the resolution of even complex cases. Proper application of the rules is even more important now to be sure that such cases are truly appropriate for summary judgment due to the nonexistence of factual issues. 75 Dyes v. Isuzu Motors, 611 So.2d 126, 128 (La. App. 1st Cir. 1992). 13

15 A streamlined, and one hopes improved, procedure for summary judgment A précis By Donald W. Price and B. Scott Andrews; Dué, Price, Guidry, Piedrahita & Andrews; Baton Rouge, Louisiana La. C.C.P. Art. 966 has always allowed summary judgment when there is no genuine issue of material fact as to any element of a cause of action necessary for recovery. But how does one know what elements are at issue on any given motion? Perhaps the ultimate nightmare scenario illustrating this uncertainty was presented in McKee v. Wal-Mart Stores, Donald Price Inc., (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, writ denied, La.10/26/07), 966 So.2d 583. That case, which our law firm handled, involved an unconventional antibiotic prescription to a child that caused the child to develop toxic epidermal necrosis. In that part of the litigation, the plaintiff alleged negligence on the part of the pharmacist who filled the prescription in failing to comply with a regulatory requirement that she counsel Scott Andrews customers regarding prescription medications. The plaintiff claimed that had there been such a consultation, it would have resulted in a call to the pediatrician and, in all likelihood, a change of the prescription to a more conventional and less-risky antibiotic. After the pediatrician (who was a defendant in a separate medical review panel proceeding) testified that he would not have changed the prescription, the pharmacy moved for summary judgment on the issue of cause-in-fact. Plaintiff marshaled all of her evidence, but she focused her arguments on the cause-in-fact argument set forth in the motion and supporting memorandum. At the hearing, the trial judge granted summary judgment based upon his conclusion that the pharmacist despite her admission that she had not counseled the mother and despite the legal requirement that she do so was not negligent. Attempts to point out to the court in a motion for new trial that this issue was not before the court on the motion fell on deaf ears, so plaintiff appealed the case. On appeal, the plaintiff briefed both cause-in-fact and negligence arguments, but the court of appeal affirmed on the grounds that the alleged negligence was not the legal cause of the child s injury. On rehearing and in a writ application, the plaintiff briefed that issue, too, to no avail. The plaintiff was always making her argument to judges who had already made up their mind on an issue without the benefit of briefing by either side. 1 During the last four legislative sessions, Rep. Neil Abramson (D-New Orleans), in responding to concerns and requests from lawyers and the judiciary, has attempted to delineate specifically what issues and evidence the court may consider on a motion for summary judgment and thus what issues and evidence for which counsel have to prepare. Reprinted from October 2013 Louisiana Advocates Copyright 2014, Louisiana Association for Justice Page 1 of 4

16 Rep. Abramson consulted with the legislation committee of LAJ and the Louisiana State Bar Association to rewrite the summary judgment procedure to be more user-friendly to practitioners and to ensure fundamental fairness through express notice of the issues before the court. Effective August 1, 2013, 2 La. C.C.P. Art. 966 specifies that on a motion for summary judgment: 1) Summary judgment may be rendered or affirmed only as to those issues set forth in the motion for summary judgment under consideration by the court at that time. 2) Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. A. To be considered by the court, pleadings, depositions, answers to interrogatories, admissions, and affidavits must be admitted for purposes of the motion for summary judgment. B. Any evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection raised in a memorandum or written motion to strike. Here is a brief summary of the recent amendments to Art. 966 and the need for and effect of each: 1. Summary judgment shall be rendered or affirmed only as to those issues set forth in the motion under consideration 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 summary judgment on notice concerning the issues the mover is raising so that the opponent can marshal and present countervailing evidence on those issues. Or, at least that is what most practitioners realistically believed; in fact, as stated previously, many courts considered any issue in the case fair game on a summary judgment. Going beyond the scope of the motion presented deprives the adverse party of the opportunity to present evidence and argument, and it is fundamentally unfair. Therefore, by 2010 La. Acts No. 690, 3 the Louisiana Legislature amended La. C.C.P. Art. 966(E) to clarify that a summary judgment shall be rendered or affirmed only as to those issues set forth in the 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 with discretion over what issues can be considered, but rather to remove the unwarranted perception that was percolating in some legal circles that summary judgment shall be granted in all cases and to clarify that the provision limits the issues that may be considered. This express notice of the issues requirement is consistent with Uniform District Court Rule 9.9, which requires the filing of a memorandum in support of a motion for summary judgment that contains: 1) A list of the essential legal elements necessary for the mover to be entitled to judgment; 2) A list of the material facts that the mover contends are not genuinely disputed; and 3) A reference to the document proving each such fact, with the pertinent part containing proof of the fact designated. Thus, the issues set forth in the motion for summary judgment as more specifically delineated in the memorandum in support and the statement of issues as to which there is purportedly no genuine factual issues are the only issues that may be considered by the court. The mover must specify the particular issue, theory of recovery, cause of action, or defense for which summary judgment is requested. So, when the motion for summary judgment seeks a determination that plaintiff cannot prove the cause-infact element of his/her case, the court may only consider the cause-in-fact element of the case. The court may not consider 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 memorandum in support is insufficient to meet either the requirements of the Uniform District Court Rules or the express notice of the issues requirement of Art. 966(F), and that will render the motion procedurally defective. 2. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court 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, answers to interrogatories, and admissions on file, together with the affidavits.... The on file provision was a holdover from the days when all discovery documents were filed in the suit record, and it was intended to allow consideration of these enumerated documents as long as the documents were properly referenced in accordance with Uniform District 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 be formally admitted into evidence at the hearing on the motion for summary judgment. Because a written motion for summary judgment is a pleading under La. C.C.P. Art. 852, many courts considered any evidence attached to the motion to be part of that pleading for all purposes and, therefore, on file and admissible Reprinted from October 2013 Louisiana Advocates Copyright 2014, Louisiana Association for Justice Page 2 of 4

17 without the need to be formally introduced into evidence at the hearing. La. C.C.P. Art See Arnette v. NPC Services, Inc., (La.App. 1 Cir. 2/15/02), 808 So.2d 798, 801; Anderson v. Allstate Ins. Co., (La.App. 1 Cir. 4/8/94), 642 So.2d 208, 213 (on rehearing), writ denied, (La. 11/29/94), 646 So.2d 404; and Hutchinson v. Knights of Columbus, Council No. 5747, (La. 2/20/04), 866 So.2d 228, 232 ( Affidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to 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 memorandum 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, (La. 2/26/99), 731 So.2d 189 (information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment). Unfortunately, the words on file led some courts to consider any documents filed in the suit record, even when they were not referenced or relied on in the summary judgment pleadings (as required by Uniform District Court Rules 9.9 and 9.10). This led to especially unfair consequences when courts, as described in the preceding section, relied on unreferenced evidence in the suit record to support summary judgment 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 than being on file is required for these enumerated documents to be considered for the purposes of the summary judgment, and 966(E)(2) was added to provide express notice of what evidence is to be considered on the motion: E.(2) Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. The unintended consequence of this amendment, however, was that all evidence, including the enumerated documents attached to a motion for summary judgment, arguably had to be admitted formally into evidence at the hearing on the motion for summary judgment in order to be considered by the court. See Marengo v. Harding, (La.App. 5 Cir. 5/16/13), _ So.3d_. This unintended consequence, coupled with the inconsistent evidentiary procedures that had been in practice around the state, provided too many traps for the unwary that caused many a sleepless night for lawyers who forgot to move the exhibits attached to their summary judgment pleading into evidence at the hearing Acts No. 391 permanently shut this trap. The following changes were made to Art. 966 (additions in bold, deletions in stikeout) to streamline the procedure, while preserving valid objections to incompetent evidence: B.(2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. *** F.(2) Only evidence admitted for purposes of Evidence cited in and attached to the motion for summary judgment shall or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be 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 judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor. The practical effect of these amendments should be easily understood by all and should result in a uniform procedure in all courts. All evidence including pleadings, depositions, answers to interrogatories, admissions, and affidavits must be admitted into evidence for purposes of the motion for summary judgment to be considered by the court. If cited in and attached to the motion (NOT the mover s memorandum) or the opposing memorandum, the enumerated documents are deemed admitted into evidence, unless excluded in response to a proper objection, and the documents do not have to be formally admitted into evidence at the hearing. If these documents are already in the suit record, they do not have to be refiled with the motion or adverse memorandum, but any such document that is not attached to the motion or memorandum must be admitted into evidence at the hearing. Keep in mind that Uniform District Court Rules 9.9 and 9.10 require that the pertinent portions of the documents in support of or in opposition to the motion, including those already 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 objections are not allowed. Failure to timely object in writing waives any objection to the admissibility of documents cited in and attached 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 Reprinted from October 2013 Louisiana Advocates Copyright 2014, Louisiana Association for Justice Page 3 of 4

18 certain evidence at the hearing. But if the adverse memorandum is also not filed with the clerk of court, the evidence cited and attached to it that are now deemed admitted unless properly objected to do not become part of the suit record. So, as a practical matter, the adverse party should always either admit the evidence cited in and attached to the adverse memorandum at the hearing or should file the adverse memorandum with the clerk of court so that any evidence that is deemed admitted becomes part of the suit record. Guidelines for the attorney When moving for summary judgment, follow these guidelines: 1. Specify in the motion for summary judgment, the particular issue, theory of recovery, cause of action, or defense for which summary judgment is requested. 2. Cite and attach evidence to the motion in order for it to be deemed admitted into evidence without the need to formally introduce the evidence at the hearing. 3. In the memorandum in support, provide: a. A list of the essential legal elements necessary for the mover to be entitled to judgment; b. A list of the material facts that the mover contends are not genuinely disputed; and c. A reference to the document proving each such fact with the pertinent part containing proof of the fact designated. 4. At the hearing on the motion for summary judgment, move into evidence any evidence referenced in the memorandum in support that is already in the suit record but not cited in and attached to the motion for summary judgment. 5. Object to the adverse party s incompetent or inadmissible evidence in a reply memorandum or in a written motion to strike. b. A reference to the document proving that each such fact is genuinely disputed, with the pertinent part designated. 4. The adverse party may reference any evidence cited in and attached to the motion for summary judgment that is deemed admitted without the need to attach it to the memorandum in opposition and without the need to formally introduce the evidence at the hearing. 5. File the opposition memorandum and attached documents into the record even if not required by local rule, or, at the hearing on the motion for summary judgment, move into evidence any evidence referenced in the memorandum in opposition that is already in the suit record but not deemed admitted by being cited in and attached to the motion for summary judgment or the memorandum in opposition. Endnotes 1. The relatively happy ending is that the plaintiff eventually obtained a verdict in excess of the malpractice cap against the treating pediatrician for prescribing the drug La. Acts No. 391 (HB 589 by Rep. Abramson), effective August 1, With the absence of legislative expression to the contrary, the procedural or interpretative changes to La. C.C.P. Art. 966 apply prospectively and retroactively. See La. C.C. Art 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 particular judicial district requires that memoranda be filed with the clerk of court or sent directly to the presiding judge. 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 a written motion to strike. 2. Cite and attach evidence to the memorandum in opposition in order for it to be deemed admitted into evidence without the need to formally introduce the evidence at the hearing. 3. In the memorandum in opposition, provide: a. A list of the material facts that the opponent contends are genuinely disputed; and Reprinted from October 2013 Louisiana Advocates Copyright 2014, Louisiana Association for Justice Page 4 of 4