DAVID FAULKNER AND AMY FAULKNER v. MEGAN ELIZABETH TYLER ET AL (2023)

Writ application denied.

The law usually does not require a vain and useless act. When multiple motions for summary judgment and oppositions thereto are heard at the same hearing on the same day before the same judge it would seem to be efficient to be able to adopt exhibits by reference. I emphasize that this is not the same thing as referring to something that is merely “in the record.”

Nevertheless, I understand the sentiment to hold tight the line to prevent a return to the days of the old wild west of summary judgment procedure.

In this interlocutory context, applicant may re-urge its motion with the relevant exhibits attached.

I agree with the denial of the writ application in this case. As in the recent denial in Burlison v. State Farm Fire & Casualty Co., 2023-0071 (La 4/12/23), -- So. 3d --, I write separately to point out that, in my view, the court of appeal correctly reversed the trial court ruling in this case. The trial court granted summary judgment in favor of David and Amy Faulker, but the court of appeal found that the documentation attached to National Union's motion for summary judgment could not constitute competent summary judgment evidence for plaintiffs’ own cross-motion. Irrespective of my personal view of whether this is an efficient use of court resources, the plain language of Code of Civil Procedure article 966 and the comments thereto support this interpretation. See, e.g., 2015 Official Revision cmts. C.C.P. art. 966 (“Subparagraph (A)(4), which is new, contains the exclusive list of documents that may be filed in support of or in opposition to a motion for summary judgment. ․ This Subparagraph intentionally does not allow the filing of documents that are not included in the exclusive list, ․ , unless they are properly authenticated by an affidavit or deposition to which they are attached.”) (emphasis added). I further note that, depending upon the status and timing of the litigation, the trial court may permit plaintiffs the opportunity to refile their motion with evidence deemed to be competent under the Code of Civil Procedure.

Hughes, J., concurs and assigns reasons. Crichton, J., additionally concurs and assigns reasons.