Ann Marie Auricchio And Patrick Hogan v. Lyneigh J. Harriston

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 10th day of December, 2021 are as follows:
BY Crain, J.:
2020-CC-01167 ANN MARIE AURICCHIO AND PATRICK HOGAN VS. LYNEIGH J.
HARRISTON (PARISH OF ORLEANS CIVIL)
ORDER GRANTING LEAVE TO FILE OPPOSITION REVERSED.
SUMMARY JUDGMENT VACATED. REMANDED. SEE OPINION.
Hughes, J., additionally concurs and assigns reasons.
Griffin, J., additionally concurs and assigns reasons.

SUPREME COURT OF LOUISIANA
No. 2020-CC-01167
ANN MARIE AURICCHIO AND PATRICK HOGAN
VS.
LYNEIGH J. HARRISTON
On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
CRAIN, J.
We granted this writ to resolve a split between the courts of appeal relative to
the interpretation of Louisiana Code of Civil Procedure article 966(B)(2). We hold
that, in the absence of consent by the parties, a trial court has no discretion to extend
that article’s fifteen-day deadline for filing an opposition. We remand for the trial
court to rule on the motion for summary judgment without the late-filed opposition.
FACTS AND PROCEDURAL HISTORY
Plaintiffs, Anne Marie Auricchio and Patrick Hogan, and defendant, Lynleigh
Harriston, are the owners of neighboring properties.1 Harriston’s brother lived in a
rental apartment on her property. Plaintiffs sued Harriston, contending she refused
to stop her brother’s drug use on the property , which interfered with the peaceable
use of Plaintiffs’ property. Ultimately, Plaintiffs claimed they moved due to the drug
activities.
Plaintiffs filed a motion for summary judgment on March 3, 2020, asserting
no genuine issues of material fact existed with regard to the following: Harriston
invited her brother to live in the apartment despite having full knowledge he was a
drug addict who had been repeatedly incarcerated for heroin use, that the brother’s
1 The correct spelling of Harriston’s name is “Lynleigh.” We note the misspelling used in the
caption and filings below and use the correct spelling.
10/10/21

2

occupancy and drug activity was causing harm to Plaintiffs, and that Harriston did
nothing to prevent or eliminate the harm.
The trial court set the summary judgment hearing for July 31, 2020. On July
20, 2020, Harriston filed a motion for continuance and, alternatively, a motion to file
opposition evidence after the Article 966(B)(2) fifteen-day deadline. Harriston’s
motion explained her counsel had “some difficulties with COVID-19.” Ten days
before the hearing, Harriston filed an opposition to the summary judgment motion.
Plaintiffs opposed both the motion for continuance and the motion for leave to file
the late opposition.
The trial court denied the motion to continue, but allowed the late opposition.
Plaintiffs sought supervisory review , and t he court of appeal denied the writ.
Auricchio v. Harriston , 20 -0394 (La. App. 4 Cir. 09/14/20) (unpublished). The
motion for summary judgment was heard on July 31, 2020, and denied, with the trial
court finding the late -filed opposition raised genuine issues of material fact.
Plaintiffs sought a writ , which the court of appeal again denied. Auricchio v.
Harriston, 20-0428 (La. App. 4 Cir. 10/06/20) (unpublished). We granted this writ
to determine the proper interpretation and application of Louisiana Code of Civil
Procedure article 966(B)(2). Auricchio v. Harriston, 2020-01167 (La. 3/16/21), 312
So. 3d 589.
DISCUSSION
Louisiana Code of Civil Procedure article 966(B)(2) provides:
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 the
opposition shall be filed and served in accordance with Article 1313 not
less than fifteen days prior to the hearing on the motion . [emphasis
added].

3

Harriston argues the trial court’s denial of the continuance and consideration
of the late-filed opposition was not an abuse of discretion under Louisiana Code of
Civil Procedure article 966(C)(2), which expressly allows the trial court to continue
a summary judgment hearing for “good cause.” Because the hearing could have
been continued, thus allowing additional time to file an opposition, Harriston
contends the trial court acted within its discretion by simply allowing the late -filed
opposition and having the hearing. While Harriston’s argument has some logical
appeal, the express language of Article 966(B)(2) requires a different conclusion.
Before it was amended in 2015, Louisiana Code of Civil Procedure article
966(B) mandated that “[f]or good cause, th e court shall give the adverse party
additional time to file a response, including opposing affidavits or depositions.” This
language was consistently interpreted to allow an opposition to a motion for
summary judgment to be filed after the statutory delay . In 2015, the legislature
amended Article 966(B) and, in subpart (2), required an opposition to be filed no
later than fifteen days before the hearing. Plaintiffs contend the 2015 amendments
removed the trial court’s discretion to allow a late-filed opposition.
The First and Third Circuit Courts of Appeal have held the amended version
of Article 966 allows the trial court no discretion to consider a late-filed opposition.
See Winston v. Hall , 2017-1097, (La. App. 1 Cir. 4/6/18), 2018 WL 1663020,
recognizing, in a footnote, that Article 966, as amended and reenacted by 2015 Act
No. 422, does not allow a trial court discretion to extend the mandatory filing
deadlines. See also Lewis v. Old Republic Ins. Co. , 20 17-456 (La App. 3 Cir.
8/23/17), 226 So. 3d 557, 559, finding the trial court lacked discretion to allow late-
filed opposition evidence. In contrast, the Second, Fourth, and Fifth Circuits have
held a trial court has discretion to consider an untimely opposition, even after the
2015 amendment. See Reed v. Restorative Home Health Care, LLC, 52,645 (La.
App. 2 Cir. 6/5/19), 281 So. 3d 788; Brown v. Jazz Casino Co, LLC, 2018-0913 (La.

4

App. 4 Cir. 5/1/19) (unpublished); and Gaudin & Gaudin v. IberiaBank Corp., 2019-
459 (La. App. 5 Cir. 3/17/20), 293 So. 3d 755.
“The starting point for the interpretation of any statute is the language of the
statute itself.” Dejoie v. Medley, 2008-2223 (La. 5/5/09), 9 So.3d 826, 829. When
a statute is clear and unambiguous and its application does not lead to a bsurd
consequences, the provision must be applied as written , with no further
interpretation made in search of the legislature’s intent. Id.; La. Civ. Code art. 9; La.
R.S. 1:4.
The clear and unambiguous language of Article 966(B)(2) says that, absent
the consent of the parties and the court, an opposition shall be filed within the fifteen-
day deadline established by the article. The word ‘shall’ is mandatory. La. R.S. 1:3.
Under well -established rules of interpretation, the word “shall” excludes the
possibility of being “optional” or even subject to “discretion,” but instead means
“imperative, of similar effect and import with the word ‘must.’ ” Louisiana Fed’n of
Tchrs. v. State, 2013-0120 (La. 5/7/13), 118 So. 3d 1033, 1051. This interpretation
also does not lead to absurd consequences. Summary judgments are intended “to
secure the just, speedy, and inexpensive determination of every action.” La. Code
Civ. P. art. 966(A)(2). Limiting judicial discretion by setting a firm deadline for
filing an opposition furthers this end. That is a rational legislative choice and must
be applied as written.
The legislative history of Article 966(B) reinforces our interpretation of its
clear wording. The 2015 amendment removed language that expressly gave the trial
court the discretion, upon a showing of “good cause,” to afford additional time to
oppose a motion for summary judgment . By removing the discretionary language
and replacing it with mandatory language, we must assume the legislature intended
to change the law to eliminate the previously afforded discretion. “[W]hen the

5

legislature changes the wording of a statute, it is presumed to have intended a change
in the law.” Borel v. Young, 2007-0419 (La.11/27/07), 989 So.2d 42.
Harriston missed the deadline to file her opposition. Nevertheless, she argues
Plaintiffs were not prejudiced by the late filing . But, prejudice is irrelevant . T he
statute mandates compliance without regard to cause or prejudice. While the trial
court could have considered equitable concerns and continue d the summary
judgment hearing for “good cause” under Article 966(C)(2), all discretion to
consider the late-filed opposition was eliminated when the continuance was denied.
Thus, we remand for the trial court to rule on Plaintiffs’ motion for summary
judgment without considering Harriston’s late-filed opposition.2
CONCLUSION
We reverse the trial court’s grant of the motion for leave to file the opposition;
vacate the denial of summary judgment; and remand the matter to the trial court for
ruling on Plaintiffs’ motion for summary judgment wi thout consideration of
Harriston’s opposition.
ORDER GRANTING LEAVE TO FILE OPPOSITION REVERSED;
SUMMARY JUDGMENT VACATED; AND CASE REMANDED.

2 “[T]he failure to file an opposition does not automatically require that the motion for summary
judgment be granted, as the initial burden of proof is on the mover. Crockerham v. Louisiana
Med. Mut. Ins. Co., 2017-1590, p. 5 (La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608. See also La.
Code Civ. P. art. 966(B)(1)(“[A] motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to material fact
and that the mover is entitled to judgment as a matter of law.” [emphasis added]).

S
UPREME COURT OF LOUISIANA
No
. 2020-CC-01167
ANN MA
RIE AURICCHIO AND PATRICK HOGAN
VS.
LYNEIGH J. HARRISTON
O
n Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
H
ughes, J., additionally concurring.
I believe that the trial court simply cut to the chase in order to be efficient, but
if there is one area of the law where Procrustean justice seems to be the rule, it is
summary judgment procedure.
10/10/21

SUPREME COURT OF LOUISIANA
No. 2020-CC-01167
ANN MARIE AURICCHIO AND PATRICK HOGAN
VS.
LYNEIGH J. HARRISTON
On Supervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
GRIFFIN, J., additionally concurs and assigns reasons.
I am in full agreement with the majority opinion. I write separately to
emphasize that the Court’s opinion in this matter is consistent with the result reached
in Zapata v. Seal, 20-1148, p. 6 (La. 9/30/21), --- So.3d ---, 2021 WL 4472588 at
*3, wherein we noted that the trial court properly struck an untimely opposition to a
motion for partial summary judgment under La. C.C.P. art. 966(B)(2); yet
recognized its discretion to vacate its grant of the partial summary judgment under
La. C.C.P. art. 1915(B)(2).
10/10/21