Anyone litigating in Louisiana State Courts knows that Summary Judgment practice in recent years has been full of unseen pitfalls. A couple of recent cases have demonstrated just how deep and unforeseen those pitfalls can be.
Below is a brief synopsis of three cases demonstrating how courts have been extremely strict in interpreting LA Code of Civil Procedure Article 966 relative to Motions for Summary Judgment (“MSJ”).
Mahe v. LCMC Health Holdings LLC, et al., 2023-CC-00025 (La. 03/14/2023), — So.3d —
In Mahe, the issue before the Louisiana Supreme Court was whether the trial court could grant a continuance of a hearing on an MSJ when the Motion was filed after the statutory deadline for filing an opposition to the MSJ.
The opponent of the summary judgment in this instance claimed the necessary “good cause” for a continuance was present because an expert had been out of town. The necessary proof to rebut the Motion for Summary Judgment was, therefore, not yet available. The trial court, acknowledging it would only be fair to allow the opponent more time to accumulate evidence, granted the continuance.
Under La. C.P.P. art. 966(B)(2), a party opposing a summary judgment must file and serve an opposition at least 15 days before the hearing on the MSJ. The Motion for Continuance, however, was not filed within that timeframe. Though not an opposition per se, the Louisiana Supreme Court ruled that the request for a continuance must be filed within the requisite timeline for an opposition:
A continuance under La. Code Civ. P. art. 966(C)(2) cannot serve as a pretext to circumvent the deadlines set forth in La. C.C.P. art. 966(B)(2).
The Court further noted in footnote 2 the general proposition that “good cause” does not exist for a continuance solely to allow the consideration of untimely filed pleadings, citing Newsome v. Homer Mem. Therefore, the request for continuance of the MSJ hearing was untimely.
Downing et al. v. State et al., 2023-CC-00039 (La. 03/14/2023), — So.3d —
In Downing, the Louisiana Supreme Court again took up the timeliness of an opposition to a Motion for Summary Judgment. In this matter, the Plaintiff filed an opposition to a defense MSJ on the 15th day before the hearing, just making it in under the wire. However, the State-defendant countered that service—also required under art. 966(B)(2)—was not effectuated on day 15 pre-hearing.
In this matter, Plaintiff attempted to serve the opposition under La. C.C.P. art. 1314(A)(4) via email. This manner of service requires a confirmation of electronic delivery. Plaintiffs advised the state server “blocked” the opposition from delivery. The State countered that its server would not “block” the email, but may have sent an automated message advising a file was too large and to send in an alternate fashion. Despite this issue/discrepancy, the trial court denied the State’s MSJ, based on all pleadings.
The Louisiana Supreme Court noted the transcript of the haring was unclear. Therefore, the Court was unable to determine the effectiveness of the attempted Art. 13(A)(4) service via e-mail and, therefore, whether the opposition service was timely under art. 966(B)(2). The matter was remanded, with explicit instructions for the trial court to decide if the email transmission constituted effective and timely service. The Court noted that, if Plaintiffs prevailed on that issue, the state was entitled to a review of that ruling. However, if Defendants prevailed, the trial court was to consider the defense MSJ without consideration of Plaintiffs’ opposition—due to the untimely service. Very explicit instructions, indeed.
Troncoso et al. v. Point Carr Homeowners Assoc. et al., 2022 CA 0530(La. App. 1 Cir. 01/10/2023), — So.3d —
Tronsco was a ruling from the Louisiana First Circuit following from a previously unpublished opinion in Fairburn & Assoc. / Kistler, 2020 CA 1290(La. App. 1 Cir. 10/18/21) addressing the extent of what must be filed with a Motion for Summary Judgment vis-à-vis the rest of the existing court record.
In this new case, a prior defendant had been dismissed via its Motion for Summary Judgment. Certain other defendants now filed a “me too” MSJ. As generally allowed under La. C.C.P. Art. 853, Defendants adopted a memorandum and attached exhibits from the previously-filed, and prevailing, MSJ by the other defendants, and filed some additional affidavits. Defendants argued that MSJ was now the law of the case. Plaintiffs objected, arguing adoption by reference does not exist under Art. 966, and that the Motion inherently lacked a listing of material facts, documents, and essential elements as required under the Article.
The appellate court noted MSJs may only be rendered or affirmed as to issues set forth in the motion under consideration by the court at that time, per Art. 966(F), and is otherwise legally erroneous. The purpose is to allow the opposing party to determine the elements on which there is allegedly no genuine issue of fact and to avoid surprise. Otherwise, an opposing party would be forced to try their case in toto, which is contrary to the purpose of the MSJ procedures for securing a just, speedy, and inexpensive determination.
Despite noting the purpose of inexpensive determination of issues applicable to MSJs, the Court stated:
Although they attempted, by a statement in their memorandum in support of their motion, to adopt in extenso the motion, memorandum, and exhibits filed in this matter in 2019 by McElveen and Tedesco, these materials elsewhere in the record cannot be considered on summary judgment.
Because the defendants failed to file any evidence in support of their motion that would satisfy their initial burden with regard to the issues actually raised in the motion, the trial court erred in granting summary judgment in favor of the defendants.
In essence, because the second set of defendants did not physically file the same memorandum and evidence again—evidence that was already part of the record—the second set of defendants did not comply with the provisions of Art. 966 requiring that supporting proof be filed with the Motion. It did not matter that these items were explicitly referenced by defendants and were found “elsewhere in the record.”
The conclusion we can draw from these recent rulings is clear. Louisiana Courts will and are instructed from Louisiana’s appellate and Supreme Court to interpret La. C.C.P. art. 966 relative to Motions for Summary Judgment in the strictest sense possible. Whether rightly or wrongly, fortunately or unfortunately, form applies over substance when enforcing the requirements of Art. 966 and MSJs in Louisiana Courts. Watch your timelines, be particular with your evidence, and only then will you have an opportunity to prevail on the substantive issues at bar in a Motion for Summary Judgment.