Recent Louisiana Rulings on Motions for Summary Judgment: Part Deux

We recently reported on some of the latest Louisiana rulings on Motions for Summary Judgment. The Louisiana Supreme Court only just made another brief, but interesting, ruling in a per curiam opinion regarding the use of affidavits as evidence in Motions for Summary Judgment. Below is what we learned, and did not learn, from this recent ruling.

Affidavits as evidence in an MSJ

LA C.C.P. Article 966(A)(4) allows only eight (8) categories of evidence to support or oppose a motion for summary judgment: pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. In order to challenge any of the evidence attached by an opponent, the party must file a timely opposition or reply memorandum, per Art. 966(B)(2). The Court is required to state which, if any, documents it held to be inadmissible or declined to consider.

Affidavits are typically used to provide additional facts, often confirmed by attached documentation. Sometimes these facts are those that have not yet been obtained via a deposition. However, if the deposition of the affiant has already been taken, the affidavit should not be considered if it contradicts prior sworn testimony. Cf. Bourgeois v. Curry, 921 So.2d 1001 (La. App. 4 Cir. 2005), writ denied; Alonzo v. Safari Car Wash, 75 So.3d 509 (La. App. 5 Cir. 2011).

The Recent LASC Ruling

In its recent per curiam opinion in Matherne v. Academy, Ltd., 2023-CC-00536 (La. 06/21/2023), 2023 WL 4100370, the Louisiana Supreme Court issued a brief ruling overturning an appellate court’s granting of a Motion for Summary Judgment in favor of the defendant. In its ruling, the Supreme Court found that an affidavit offered by the Plaintiff “was not a ‘black and white contradiction’ of testimony.” Hence, the issues raised in the affidavit precluded summary judgment for providing a material dispute in the case.

The suit surrounded alleged injury claims from falling merchandise at a store. Known facts alleged in this case are light, as the opinion from the Supreme Court is brief, and the lower court decision also did not delve into the applicable facts. See 2022-CW-1180 (La. App. 1 Cir. 02/22/2023), 2023 WL 2160870, unpublished. Both the Supreme Court and appellate panels named the deponent/affiant, but without any explanation as to his connection to the case or the facts to which he testified. The circuit court panel did discuss how it was the Plaintiff’s burden to demonstrate that neither she nor another customer caused the merchandise to fall, and that it was the merchant’s negligence that caused the accident.

The circuit court panel found that the deponent/affiant’s affidavit contradicted his prior testimony, without stating exactly what that testimony or affidavit specifically entailed. However, the affidavit must have been more favorable to Plaintiff. The circuit court panel stated the contradiction of the prior sworn testimony was without sufficient explanation to substantiate the contradictions, and therefore the Plaintiff failed to produce evidence as to whether another customer caused the merchandise to fall. We suppose the affidavit entailed statements relative to whether another customer or the store was at fault for the falling merchandise, based on the context of the brief opinion. The circuit court overturned the district court ruling and granted summary judgment for defendant.

The Louisiana Supreme Court found the circuit court was in error in reversing the trial court and granting summary judgment. As stated above, the Justices found the issue of deposition versus affidavit contradiction was not a “black and white” issue, referencing statement made by the trial court. There must have been enough difference in the additional statements offered via affidavit to lend at least some credibility to what otherwise looked like contradictory testimony.


Unfortunately, the lack of specific factual statements in either the Supreme Court or prior circuit court opinions gives us little to evaluate what might constitute non-contradictory evidence offered by affidavit after a deposition. For now, we just have to assume such contradiction might have to be “black and white.”