161 So. 3d 674
La. Ct. App.2014Background
- On Jan. 7, 2011, Connie Evans alleges she tripped on a concrete landing at Bordelon’s entrance whose edge was obscured by grass, causing serious arm injury.
- Bordelon’s filed a motion for summary judgment; Evans opposed with an expert affidavit (Phillip Beard, P.E.) and other exhibits attached to her opposition memo.
- The trial court initially denied Bordelon’s first motion (Jan. 23, 2013) because discovery was incomplete and allowed re-urging after discovery.
- Bordelon’s re-urged motion was heard Apr. 18, 2013; at that hearing the trial court excluded evidence not formally introduced at the hearing and granted summary judgment for Bordelon’s.
- The court of appeal concluded that a 2013 amendment to La. C.C.P. art. 966 removed the need for formal in‑hearing admission of exhibits and therefore considered Evans’s expert supplemental affidavit (which adopted the original affidavit and relied on photos and a Fire Marshal letter) to create a genuine issue of material fact.
- The appellate court reversed the grant of summary judgment and remanded; two judges dissented, arguing the hearing record lacked properly admitted plaintiff evidence under the pre‑amendment rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence attached to opposition but not formally introduced at the hearing could be considered | Evans: 2013 amendment to art. 966 allows exhibits attached to motions/memos to be deemed admitted; her expert affidavits and attachments create genuine factual disputes | Bordelon’s: under the pre‑amendment rule only evidence formally introduced at the hearing may be considered; plaintiff did not properly introduce her evidence | Court: the amendment is procedural and applies; the court considered exhibits attached to Evans’s opposition and found a genuine issue of material fact |
| Whether Beard’s supplemental affidavit and adopted original affidavit create a genuine issue of material fact about hazardous condition | Evans: Beard’s opinions (adopting photos and Fire Marshal letter) show 3" elevation change is hazardous and obscured by grass, raising dispute about unreasonably hazardous condition | Bordelon’s: relied on the evidence properly before the court at the hearing (photographs and affidavits they offered) to show no hazardous condition | Court: Beard’s supplemental affidavit (adopting original) must be considered and creates a genuine issue of material fact; summary judgment improper |
| Proper application of La. C.C.P. art. 966 post‑amendment retroactivity | Evans: amendment is procedural and applies retroactively to permit consideration of attached exhibits | Bordelon’s: (implicit) pre‑amendment rule controlled the hearing and exclusion of plaintiff exhibits was proper | Court: agrees amendment is procedural and applies; trial court erred by excluding attached exhibits |
| Whether appellate reversal and remand is required | Evans: yes, because genuine issue remains | Bordelon’s: no, trial court properly granted SJ based on record at hearing | Court: reverses grant of summary judgment and remands for further proceedings |
Key Cases Cited
- Bernard v. Ellis, 111 So.3d 995 (La. 2012) (standard of review for summary judgment is de novo)
- Arceneaux v. Arceneaux, 127 So.3d 61 (La. App. 3d Cir. 2013) (appellate court uses same standard as trial court on summary judgment)
- Marengo v. Harding, 118 So.3d 1200 (La. App. 5th Cir. 2013) (explaining former requirement that evidence be formally admitted at the summary judgment hearing)
- Midland Funding, LLC v. Urrutia, 131 So.3d 474 (La. App. 5th Cir. 2013) (holding 2013 amendment to art. 966 procedural and applicable to permit treating attached exhibits as admitted)