BURLISON v. STATE FARM FIRE CASUALTY COMPANY (2023)

Writ application denied.

I agree with the denial of the writ application in this case. I write separately to highlight that this writ application by Defendant Powerhouse Investments, LLC presents an interesting civil procedure issue – whether a co-defendant can incorporate by reference documentation filed by the other co-defendant such that it constitutes a “filing in support” for purposes of Code of Civil Procedure article 966(D)(2). A comment to the 2015 amendments to article 966 states: “Subparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion.” Before the 2015 amendments to Article 966, courts relied on Article 853 (the “incorporate by reference” article) as authority for considering documents that had been filed of record prior to the filing of a motion for summary judgment. Since the adoption of the amendment to (D)(2), however, four appellate courts that have considered the issue and held that the 2015 amendments changed the law to no longer permit a court to consider the record as a whole when deciding an motion for summary judgment.

Thus, based on Article 966(D)(2), 2015 comment (k) to Article 966, and these recent appellate court decisions, it appears other record evidence may no longer be considered in determining whether a party's burden of proof on summary judgment was satisfied.

Whether or not I personally agree with the procedural article is of no moment, as I am constrained to follow the law as written. The Louisiana Legislature may choose to reexamine article 966 (D)(2) and consider Rule 56(C)(3) of the Federal Rules of Civil Procedure, which allows the court to consider other materials in the record.

I further note that in its decree, the court of appeal remanded the matter to the trial court for further proceedings, which may permit the applicant Powerhouse the opportunity to refile its motion with evidence deemed to be competent under the Code of Civil Procedure.

Crichton, J., concurs and assigns reasons. Crain, J., would grant. McCallum, J., would grant.