J. Benjamin Zapata And Amanda Zapata v. Stephen Wayne

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of September, 2021 are as follows:
BY Griffin, J.:
2020-CC-01148 J. BENJAMIN ZAPATA AND AMANDA ZAPATA VS. STEPHEN WAYNE
SEAL, DIVERSIFIED WELL LOGGING, INC. AND NAVIGATORS INSURANCE
COMPANY (Parish of Tangipahoa)
AFFIRMED. SEE OPINION.
Retired Chief Judge Felicia Toney Williams, appointed Justice ad hoc, sitting for
Hughes, J., recused in case number 2020-CC-01148 only.
Weimer, C.J., additionally concurs and assigns reasons.
Crichton, J., dissents and assigns reasons.
Genovese, J., dissents and assigns reasons.
McCallum, J., dissents for the reasons assigned by Justice Crichton and Justice
Genovese.

SUPREME COURT OF LOUISIANA
No. 2020-CC-01148
J. BENJAMIN ZAPATA AND AMANDA ZAPATA
VS.
STEPHEN WAYNE SEAL, DIVERSIFIED WELL LOGGING, INC. AND
NAVIGATORS INSURANCE COMPANY
On Supervisory Writ to the 21st Judicial District Court,
Parish of Tangipahoa
GRIFFIN, J.
We granted this writ application to examine the interplay between two
provisions of the Louisiana Code of Civil Procedure in the context of partial
summary judgment. The specific issue presented is whether a trial court, having
granted defendants’ motion for partial summary judgment based on plaintiffs’ failure
to timely file an opposition, may later vacate that judgment when the plaintiff s
produce an expert affidavit based on evidence that was previously available in
advance of the original hearing. For the reasons that follow, we find the trial court
was within its discretion in vacating its prior ruling.
FACTS AND PROCEDURAL HISTORY
The underlying action arose out of a motor vehic le accident in which J.
Benjamin Zapata was struck from behind by a vehicle operated by Stephen Wayne
Seal and owned by Diversified Well Logging, Inc. (collectively “DWL”). Mr.
Zapata and his wife (asserting loss of consortium claims) filed suit against DWL and
its insurer alleging both new injuries and aggravation of preexisting lower back
injuries sustained in a prior motor vehicle accident . Dr. Olawale Sulaiman, who
 Retired Chief Judge Felicia Toney Williams, appointed Justice ad hoc, sitting for Justice
Jefferson D. Hughes, III.
09/30/21

2

performed lower back surgery on Mr. Zapata after the subject accident, opined in his
deposition that he does not causally relate that surgery to the subject accident. DWL
filed a motion for partial summary judgment seeking to dismiss the Zapatas’ claim
that the lower back surgery was necessitated by the accident.
The Zapatas moved to continue the hearing from June 25, 2018 to September
4, 2018. In the interim, on July 13, 2018, Mr. Zapata underwent an examination by
Dr. Mohammad Almubaslat. On August 23, 2018, twelve days befo re the hearing,
the Zapatas filed an opposition attaching a July 13, 2018 report by Dr. Almubaslat
to support the assertion that the subject accident aggravated Mr. Zapata’s preexisting
lower back injuries and necessitated the surgery. DWL filed a reply arguing that
because the opposition wa s untimely, the attachments should be stricken and the
Zapatas’ counsel precluded from presenting oral argument.1 At the hearing the trial
court agreed with DWL and granted partial summary judgment in its favor (“the
September 2018 judgment”).
On September 21, 2018, the Zapatas filed a motion to reconsider or,
alternatively, a motion for new trial. DWL oppose d arguing that a motion for new
trial was procedurally improper under La. C.C.P. art. 1915. Th e trial court denied
the motion observing that a party can only request a motion for new trial on a final
judgment.
On June 18, 2019, the Zapatas filed a motion to vacate the September 2018
judgment. Attached in support was an affidavit by Dr. Almubaslat executed on May
8, 2019. DWL opposed on the grounds that it would be improper for the trial court
to disregard the time limitations set forth in La. C.C.P. art. 966 (B) and consider
evidence that was previously available to the Zapatas in July 2018 , prior to the

1 DWL also argued Dr. Almubaslat’s report was not proper summary judgment evidence under La.
C.C.P. art. 966(A)(4).

3

original hearing on the motion for partial summary judgment. The matter was taken
under advisement.
The trial court vacated its prior ruling and, i n written reasons, observed the
September 2018 judgment was not design ated as final pursuant to La. C.C.P. art.
1915(B). The trial court further stated that at the time of DWL’s motion for partial
summary judgment, the affidavit of Dr. Almubaslat was not available as he was
unable to review and sign the affidavit prior to the hearing. The trial court concluded
that the Zapata s’ motion to vacate was authorized b y La. C.C.P. art. 1915 (B) and
found a genuine issue of material fact existed with respect to the issue of medical
causation based on the “newly submitted affidavit of Dr. Mohammad Almubaslat.”
DWL’s initial request for supervisory review was not considered as it failed
to attach a copy of the trial court’s judgment. 2 DWL subsequently filed a new,
conforming writ application. The writ was denied.
DWL’s writ application to this Court followed, which we granted. Zapata v.
Seal, 20-1148 (La. 12/8/20), 305 So.3d 863.
DISCUSSION
The issue before this Court is whether the trial court abused its discretion in
vacating its prior ruling granting partial summary judgment in favor of DWL on the
issue of medical causation. A motion to vacate is reviewed under an a buse of
discretion standard. Narcise v. Jo Ellen Smith Hosp., 98-2417, p. 9 (La.App. 4 Cir.
3/10/99), 729 So.2d 748, 753. A trial court necessarily abuses it s discretion if its
decision is based on an erroneous interpretation or application of law. See Kem
Search, Inc. v. Sheffield, 434 So.2d 1067, 1071 (La. 1983). Statutory interpretation
is a question of law subject to de novo review. Benjamin v. Zeichner, 12-1763, p. 5
(La. 4/5/13), 113 So.3d 197, 201. The grant or denial of a motion for summary

2 Dissenting, Judge McDonald found the trial court abused its discretion in granting the motion to
vacate as “plaintiffs never sought relief pursuant to La. Code Civ. P. Arts. 966 and 967 in order to
timely obtain evidence necessary to their opposition.”

4

judgment is reviewed de novo, using the same criteria that governs a trial court’s
determination of whether summary judgment is appropriate. See Samaha v. Rau ,
07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83; Narcise, supra.
Partial judgments, including partial summary judgments, are governed by La.
C.C.P. art. 1915.3 When a court renders a partial judgment as to less than all of the
claims, demands, issues, or theories against a party, the judgment shall not constitute
a final judgment unless it is designated as a final judgment by the court after an
express determination there is no just reason for delay. La. C.C.P. art. 1915(B)(1) .
“In the absence of such a determination and designation, any such order or decision
shall not constitute a final judgment for the purpose of an immediate appeal and may
be revised at any time prior to the rendition of the judgment adjudicating all the
claims and the rights and liabilities of all the parties.” La. C.C.P. art. 1915(B)(2).
Thus, it is “well -settled that prior to final judgment a [trial court] may, at its
discretion and on its own motion, change the result of interlocutory rulings it finds
to be erroneous.” Vasalle v. Wal -Mart Stores, Inc. , 01-0462, p. 5 (La. 11/28/01),
801 So.3d 331, 334.
Summary judgment procedure is governed by La. C.C.P. art. 966 et seq .
Specifically, La. C.C.P. art. 966(B)(2) provides that “[a]ny opposition to the motion
and all documents in support of the opposition shall be filed and served in
accordance with Article 1313 not less than fifteen days prior to the hearing on the
motion.”
DWL argues the trial court improperly disregarded the time limitations of La.
C.C.P. art. 966(B)(2) in considering the affidavit of Dr. Almubaslat which was based
upon his examination and report – evidence available to the Zapatas at the time the
summary judgment opposition was due . See Buggage v. Volks Constructors , 06-

3 We note La. C.C.P. art. 1915(A) is inapplicable because the September 2018 judgment did not
dispose of the entire case as to DWL. See La. C.C.P. arts. 966(E) and 1915(A)(3).

5

0175 (La. 5/5/06), 928 So.2d 536, 536 (per curiam) (“time limitation established by
La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for
summary judgment is mandatory”). DWL thus asserts that, in the absence of new
evidence previously unavailable in advance of the original hearing, the trial court
abused its discretion by interpreting La. C.C.P. art. 1915(B)(2) to permit it to vacate
the September 2018 judgment. See Narcise, 98-2417, p. 8-11, 729 So.2d at 752-54
(vacating partial summary judgment based on deposition and affidavit of expert,
retained after the ruling, which established the existence of a genuine issue of
material fact not present at the time the motion was decided).
The Zapatas counter that, as the September 2018 judgment was not designated
as final, the unambiguous language of La. C.C.P. art. 1915(B)(2) provides that it was
subject to revision at any time prior to the rendition of a final judgment. Notably,
the grounds for such revision are not delimited in the article. Thus, DWL’s attempt
to graft on to La. C.C.P. art. 1915(B)(2) requirements that are contained in La. C.C.P.
art. 1972 for seeking a motion for new trial is without merit. See Keesler v. McHugh,
44,641, pp. 3-4 (La.App. 2 Cir. 9/30/09), 24 So.3d 933, 935-36 (finding no error in
trial’s court decision to revise and overturn prior grant of non-final partial summary
judgment despite no new evidence being introduced). We agree.
The plain language of La. C.C.P. art. 1915(B)(2) provides that, absent
determination and designation as a final judgment, a partial summary judgment
adjudicating less than all of the claims at issue “may be revised at any time prior to
the rendition of the judgment adjudicating all the claims and the rights and liabilities
of all the parties.” See La. C.C. art. 9; Louisiana Mun. Ass’n v. State, 04-0227, p. 35
(La. 1/19/05), 893 So.2d 809, 836 -37 (“interpretation of a statute starts with the
language of the statute itself”); Vasalle, 01-0462, p. 5, 801 So.3d at 334. The trial
court’s astute rulings illustrate how this provision may be harmonized with the time
limitations of summary judgment procedure . See Louisiana Mun. Ass’n , 04-0227,

6

p. 36, 893 So.2d at 837 (further observing courts must give effect to all provisions
of a statute and not render an interpretation that makes any part superfluous or
meaningless). Adhering to La. C.C.P. art. 966(B)(2), the trial court struck the
Zapatas’ opposition and supporting exhibits and granted partial summary judgment
in favor of DWL. It is undisputed that this was not a final judgment – the Zapatas’
motion for new trial was denied for this reason. The trial court subsequently
exercised its discretion under La. C.C.P. art. 1915(B)(2) in vacating the September
2018 judgment which it was statutorily empowered to do “at any time” because the
judgment was not final.
Finality may be achieved by requesting a trial court to designate a partial
summary judgment as final.4 Because the language of the code as written provides
such a remedy, we decline to adopt an interpretation of La. C.C.P. art. 1915(B) that
would effectively amend the article to include the “new evidence” standard of La.
C.C.P. art. 1972(2) . See Whitley v. State ex. rel. Bd. of Sup’rs of Louisiana State
University Agr. Mechanical College, 11-0040, p. 18 (La. 7/1/11), 66 So.3d 470, 481
(declining to judicially impose requirements not mandated by the legislature) ; see
also Fraternal Order of Police v. City of New Orleans , 02 -1801, pp. 3 -4 (La.
11/8/02), 831 So.2d 897, 899 (declining to read the seven-day time delay under La.
C.C.P. art. 1974 into La. C.C.P. art. 1915(B) where no such delay exists to file a
motion to certify a partial judgment as final) . Rewriting statutes is not the role of
the courts. Kelly v. State Farm Fire & Cas. Co. , 14-1921, p. 20 ( La. 5/5/15), 169
So.3d 328, 340. Accordingly, we find the trial court was within its discretion in
vacating the September 2018 judgment.

4 “[T]he decision whether an otherwise partial judgment is final and subject to an immediate appeal
is determined by the trial judge and reviewable by an appellate court on an application for
supervisory writs; [where] review would be [based] upon whether the trial court abused its vast
discretion in not certifying the judgment as fin al and immediately appealable.” Miller v. Tassin,
02-2383, p. 12 n. 4 (La.App. 4 Cir. 6/4/03), 849 So.2d 782, 789 n. 4

7

Dr. Almubaslat’s affidavit contradicted Dr. Sulaiman’s opinion and causally
related Mr. Zapata’s lower back surgery to the subject accident. 5 This created a
genuine issue of material fact as to the issue of medical causation. See Smith v. Our
Lady of the Lake Hosp., Inc., 93 -2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.
Presented with conflicting expert testimony, the trial court did not err in ultimately
denying the partial summary judgment. See Independent Fire Ins. Co. v. Sunbeam
Corp., 99-2181, p. 16 (La. 2/29/00), 755 So.2d 226, 236 (a trial court cannot make
credibility determinations or weigh expert testimony on a motion for summary
judgment).
DECREE
For the foregoing reasons, the ruling of the trial court vacating its prior grant
of partial summary judgment is affirmed.

AFFIRMED

5 Dr. Almubaslat’s May 9, 2019 affidavit states, in relevant part:

I further noted that the February 19, 2014 automobile accident aggravated [Mr.
Zapata’s] condition; and the accident more likely than not lead to progression of
his condition, and lead to earlier repetitive non-surgical modalities of treatment that
were not successful in alleviating his symptoms, and the new injury led to surgical
intervention which likely occurred earlier than it would have been otherwise, and
more specifically to alleviate neurop athic pain that was directly affected by the
trauma.

***

Based upon my expert medical opinion, it is more probable than not that J.
Benjamin Zapata’s aggravation and/or exacerbation of a pre-existing disease is the
direct result of the February 19, 2014 accident referenced by Mr. Zapata during the
June 4, 2018 visit[.]

09/30/21
SUPREME COURT OF LOUISIANA
No. 2020-CC-01148
J. BENJAMIN ZAPATA AND AMANDA ZAPATA
VS.
STEPHEN WAYNE SEAL, DIVERSIFIED WELL LOGGING, INC. AND
NAVIGATORS INSURANCE COMPANY
ON SUPERVISORY WRIT TO THE 21ST JUDICIAL DISTRICT COURT,
PARISH OF TANGIPAHOA
WEIMER, C.J., additionally concurring.
I agree with the majority opinion. I write separately to reiterate that the Code
of Civil Procedure is an interrelated body of law subject to the rules of codal
interpretation. Laws on the same subject matter must be interpreted in reference to
each other. La. C.C. art. 13. As such, “[u]nder our long-standing rules of [codal]
construction, where it is possible, courts have a duty in the interpretation of a [codal
provision] to adopt a construction which harmonizes and reconciles it with other
provisions dealing with the same subject matter.” See Livingston Par. Council On
Aging v. Graves, 12-0232, p. 11 (La. 12/4/12), 105 So.3d 683, 690. Thus, as in this
case, where the issue concerns interpretation of two applicable Code of Civil
Procedure articles, those laws should be harmonized if possible. It is only when the
applicable laws are conflicting that the one more specifically directed to the matter
applies over the one more general in character. State ex rel. Caldwell v. Molina
Healthcare, Inc., 18-1768, p. 9 (La. 5/8/19), 283 So.3d 472, 479; Arabie v. CITGO
Petroleum Corp. , 10-2605, p. 5 (La. 3/13/12), 89 So.3d 307, 312-13 (citing

McGlothlin v. Christus St. Patrick Hospital, 10-2775, p. 12 (La. 7/1/2011), 65
So.3d 1218, 1228).
In this case, as articulated by the majority opinion, the provisions of La. C.C.P.
art. 966(B)(2) and La. C.C.P. art. 1915(B)(2) can easily be harmonized. Thus, I agree
with the majority that the district court was within its discretion in vacating the
September 2018 judgment.
2

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01148
J
. B
ENJAMIN ZAPATA AND AMANDA ZAPATA
VS
.
STEPHEN WAYNE SEAL, DIVERSIFIED WELL LOGGING, INC. AND
NAVIGATORS INSURANCE COMPANY
O
n Supervisory Writ to the 21st Judicial District Court, Parish of Tangipahoa
C
richton, J., dissents and assigns reasons:
F
or the astute reasons set forth by Justice Genovese, I dissent. Judgments
subject to reconsideration are generally based on facts or disclosures discovered after
the interlocutory judgment was rende red. See Babineaux v. Pernie -Bailey Drilling
Co., 261 La. 1080, 262 So. 2d 328, 332 (1972) (“[I]nterlocutory orders overruling
peremptory exceptions cannot be binding upon the trial court when it timely —but
later— determines error of judgment based upon the matter as submitted or upon
subsequent disclosures in the record which require a contrary holding.). In Oubre v.
Louisiana Citizens Fair Plan, 2011-97 (La. 12/16/17), 79 So. 3d 987, 1004, this
Court held that “the time limitation established by La. C.C.P. art. 966(3) for the
serving of affidavits in opposition to a motion for summary judgment is mandatory.”
See also Buggage v. Volks Constructors, 2006-175 (La. 5/5/06), 928 So. 2d 536, 536
(“The time limitation established by La . C.C.P. art . 966(3) for the serving of
affidavits in opposition to a motion for summary judgment is m andatory.”). By
reversing the prior judgment based on an affidavit related to evidence that was
available to plaintiffs prior to their o riginal opposition deadline , plaintiffs were
permitted to circumvent the mandatory requirements of La. C.C.P. art. 966. Finding
the district court does not have discretion to thus alter the mandatory opposition
deadlines and, accordingly, reconsideration of its prior judgment based on evidence

available at the time of the original hearing was an abuse of discretion, I dissent. See
also Madere v. C ollins, 2016 -2011 (La. 1/9/17), 208 So. 3d 370 (Crichton, J.,
additionally concurring) (expressing concern that district courts are improperly
applying La. C.C.P. art. 966(B)(2) and ignoring La. D.Ct. R. 9.9(c)).

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01148
J
. B
ENJAMIN ZAPATA AND AMANDA ZAPATA
VS
.
STEPHEN WAYNE SEAL, DIVERSIFIED WELL LOGGING, INC. AND
NAVIGATORS INSURANCE COMPANY
O
N SUPERVISORY WRIT TO THE 21ST JUDICIAL DISTRICT COURT,
PARISH OF TANGIPAHOA
G
enovese, J., dissents for the following reasons:
T
he issue in this case is whether La.Code Civ.P. art. 1915(B)(2) authorizes a
trial court, after having granted Defendants’ motion for partial summary judgment
based on Plaintiffs’ failure to timely file an opposition, to subsequently grant
Plaintiffs’ motion to vacate the partial summary judgment. In this case, the trial
court granted Plaintiffs’ motion to vacate, and the court of appeal denied writs. I
strongly disagree.
For the reasons that follow, I respectfully dissent from the majority opinion
affirming the trial court’s grant of Plaintiffs’ motion to vacate the partial summary
judgment, which it had previously granted in favor of Defendants.
In the instant matter, subsequent to Defendants’ filing of a partial motion for
summary judgment, Plaintiffs failed to meet the filing deadline of La.Code Civ.P.
art. 966(B)(2)(emphasis added), which states:
B. Unless extended by the court and agreed to by all of the parties, a
motion for summary judgment shall be filed, opposed, or replied to in
accordance with the following provisions:
. . . .
(2) Any opposition to the motion and all documents in support of th e
opposition shall be filed and served in accordance with Article 1313
not less than fifteen days prior to the hearing on the motion.

2

It is not disputed that Plaintiffs filed the affidavit of Dr. Almubaslat only twelve days
before the hearing; therefore, this filing was untimely. Consequently , based upon
the evidence before it, the trial court appropriately granted partial summary
judgment in favor of Defendants.
Thereafter, the trial court erred in granting Plaintiffs’ motion to vacate that
judgment. The trial court’s ruling and the majority opinion in this case clearly
disregard the plain, simple, and mandatory language of La.Code Civ.P. art. 966 by
considering evidence that was untimely filed. Such an abolition of the La.Code
Civ.P. art. 966 timelines defeats the very core and purpose of La.Code Civ.P. art.
966(A)(2), i.e., “The summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action[.]”
In reaching its conclusion, the majority rel ies on La.Code Civ.P. art.
1915(B)(2) to conclude that the partial summary judgment may be reconsidered by
the trial court because the judgment was not certified as a final judgment. However,
this reasoning ignores the more recent, specific, and mandatory provisions governing
motions for summary contained in La.Code Civ.P. art. 966. Moreover, La.Code
Civ.P. art. 966 is the latest expression of the will of legislature. This fact alone
elevates the requisite timelines governing motions for summary judgment over the
general provisions of La.Code Civ.P. art. 1915.
A motion to vacate may not be used as a “back door” means of circumventing
the mandatory filing requirements of La.Code Civ.P. art. 966, such that untimely
filed evidence may later be used to re verse and defeat a partial summary judgment
lawfully granted to a party duly entitled thereto. The reasoning of the majority ,
applying La.Code Civ.P. art. 1915 due to the lack of final judgment certification in
this case, makes the summary judgment timelines indefinite, and results in a de facto
abolition of same . Under the majority’s reasoning, a prevailing party has no

3

plausible reason to agree to certification of the judgment as final, since doing so
procedurally takes the matter out of the parameters of La.Code Civ.P. art. 1915 and
re-establishes the timelines of La.Code Civ.P. art. 966, which would be to his
detriment. On the other hand, the unsuccessful party is relegated to having to
seek/request certification of the judgment as a final judgment for purposes of appeal,
which the trial court may or may not grant, and with no guarantee that the court of
appeal will agree as to its finality. Obviously, this will take a longer period of time
for resolution, is more expensive, and dilutes the party’s right to file a writ in lieu of
an appeal. The party may prefer no certification in order to file a writ instead, which
is more quickly resolved and less expensive , in order not to leave the matter open
for a subsequent motion to vacate to be filed some indefinite time period later. This
critically impinges upon the right of the unsuccessful party to freely choose between
certifying or not certifying the judgment as final in order to decide whether to take
a writ or an appeal.
As stated in my dissent in Celestine v. Boyd Gaming Corp., 18-1609, pp. 1-2
(La. 1/14/19), 261 So.3d 762, 762:
The 2015 amendment to the summary judgment article, specifically
La.C.C.P. art. 966(B), requires that an opposition be filed not less than
fifteen days prior to the hearing on the motion. This was not done in
this case. These timelines have meaning and are not mere suggestions.
They are mandatory and not to be arbitrarily ignored. A disregard of
any of the timelines in the summary judgment article will thwart the
efficacy and core of the procedure. I strongly disagree with the
majority’s indifference in not holding the line on the filing requirements
of the summary judgment procedure.

The majority opinion in this case , affirming the trial court’s ruling vacating
its prior grant of a partial summary judgment, elevates La.Code Civ.P. art.
1915(B)(2) over La.Code Civ.P. art. 966(B)(2) and effectively negates the requisite
time constraints contained therein. Allowing La.Code Civ.P. art. 1915 to override
La.Code Civ.P. art. 966 results in a grant of a summary judgment never being a final
judgment, and thus, subject to reconsideration and even reversal, as occurred in this

4

case, unless and until said judgment is certified by the trial court as a final judgment.
Summary judgment is the more recent expression of legislative will and stands
alone. It is found in a completely different title in Book II of the Code of Civil
Procedure. Summary judgment is found in Title I of Book II; whereas, certification
of judgments is found in Title VI of Book II. Summary judgment is not a trial nor
an ordinary proceeding. It is a summary proceeding with its own rules which differ
considerably from those of a trial and thus not subjected to La.Code Civ.P. art. 1915.
This erroneous result flies in the face of the express language and intent of La.Code
Civ.P. art. 966.
For the foregoing reasons, I find that the trial court erred in vacating its prior
ruling granting partial summary judgment in favor of Defendants, and I would
reverse the lower courts , and render partial summary judgment on the issue of
medical causation in favor of Defendants.