Fork-in-the-Road under Revised La. C.C.P. art. 3653: Courts Must Choose Between Paragraph (A)(1) and (A)(2) Based on Defendant’s Possession — Commentary on Winans v. McKay (5th Cir. 2025)

Fork-in-the-Road under Revised La. C.C.P. art. 3653: Courts Must Choose Between Paragraph (A)(1) and (A)(2) Based on Defendant’s Possession — Commentary on Winans v. McKay (5th Cir. 2025)

Introduction

In Winans v. McKay, No. 25-30199 (5th Cir. Nov. 5, 2025) (per curiam) (not designated for publication), the Fifth Circuit affirmed a district court’s denial of a Rule 56(d) motion and its grant of summary judgment against a pro se plaintiff in a Louisiana petitory action. The case presents two core issues: (1) what a Rule 56(d) movant must show to postpone summary judgment for additional discovery, and (2) how the 2023 revision to Louisiana Code of Civil Procedure article 3653 reallocates the plaintiff’s burden in a petitory action when the defendant has been in possession for the statutory period.

The court held that the plaintiff failed both prongs necessary for Rule 56(d) relief (specificity and diligence) and failed to create a genuine dispute of material fact to avoid summary judgment. Importantly, the panel clarified how revised article 3653 should be applied: in a petitory action, the court must take one of two mutually exclusive paths depending on the defendant’s possession — either paragraph (A)(1) applies (if defendant meets the possession threshold) or paragraph (A)(2) applies (in all other cases). Because the record showed the defendant’s possession exceeded ten years, the plaintiff was required to prove he acquired ownership from a previous owner or by acquisitive prescription; “better title” analysis under paragraph (A)(2) was unnecessary.

Summary of the Opinion

  • Rule 56(d): The court affirmed the denial of the plaintiff’s Rule 56(d) motion because he neither identified with specificity the facts additional discovery would likely adduce and how those facts would affect summary judgment, nor showed diligence in pursuing discovery. He waited significant periods to initiate and propound discovery and failed to attach the Requests for Admission (RFAs) he claimed were “vital.”
  • Summary Judgment: The court affirmed summary judgment. The defendant’s evidence established a chain of title away from the plaintiff’s ancestors and showed the defendant’s long-term possession since 2006. The plaintiff responded with conclusory assertions, copies of discovery without analysis, and unsubstantiated allegations — insufficient to create a genuine dispute of material fact. Arguments and evidence first raised on appeal were disregarded.
  • Petitory Actions under Revised La. C.C.P. art. 3653: The panel emphasized a “fork-in-the-road” approach under the 2023 revision. Where the defendant has been in possession for ten years (or one year in good faith with just title), paragraph (A)(1) governs and the plaintiff must prove he acquired ownership from a previous owner or by acquisitive prescription. Only “in all other cases” does paragraph (A)(2) apply, requiring the plaintiff to prove “better title than the defendant.” The district court’s foray into (A)(2) was unnecessary once (A)(1) failed, though the judgment was affirmed.
  • Counterclaim: The district court had ordered the erasure and cancellation of a “Louisiana Quit Claim Deed” filed by the plaintiff, but the Fifth Circuit did not review that ruling because the plaintiff did not brief any challenge to it on appeal (issue waived).

Analysis

Precedents Cited and Their Role

  • American Family Life Assurance Co. of Columbus v. Biles, 714 F.3d 887 (5th Cir. 2013): Establishes that Rule 56(d) motions are “broadly favored” but still require specific showings. Provides the standard of review (abuse of discretion) and frames the need for specificity beyond vague assertions.
  • Bailey v. KS Mgmt. Servs., L.L.C., 35 F.4th 397 (5th Cir. 2022): Articulates the two-prong Rule 56(d) test: (1) additional discovery likely yields specific, outcome-relevant facts; and (2) the movant diligently pursued discovery. The court applied both prongs to deny relief.
  • Smith v. Regional Transit Authority, 827 F.3d 412 (5th Cir. 2016): Requires a “plausible basis” that “specified facts” probably exist and would influence the summary judgment outcome — a standard the plaintiff did not meet.
  • In re Chamber of Commerce of the United States of America, 105 F.4th 297 (5th Cir. 2024) (quoting In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008)): Defines abuse-of-discretion parameters — clearly erroneous facts, erroneous legal conclusions, or misapplication of law.
  • Munoz v. Orr, 200 F.3d 291 (5th Cir. 2000): Explains why appellate review of a Rule 56(d) ruling precedes de novo review of summary judgment — it defines the record.
  • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Restates the “reasonable jury” test for a genuine dispute of material fact.
  • Celotex Corp. v. Catrett, 477 U.S. 317 (1986): Allows a movant to show “absence of evidence” where the nonmovant has the trial burden; cited via Vanzzini v. Action Meat Distributors, Inc., 995 F. Supp. 2d 703 (S.D. Tex. 2014).
  • Boudreaux v. Swift Transportation Co., 402 F.3d 536 (5th Cir. 2005) (quoting Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994)): The nonmovant cannot rely on “metaphysical doubt,” conclusory allegations, or a scintilla of evidence.
  • Giles v. General Electric Co., 245 F.3d 474 (5th Cir. 2001) and Isquith ex rel. Isquith v. Middle South Utilities, Inc., 847 F.2d 186 (5th Cir. 1988): Conclusory statements and reiterations of pleadings are insufficient; the nonmovant must point to record evidence.
  • Skotak v. Tenneco Resins, Inc., 953 F.2d 909 (5th Cir. 1992): Appellate courts do not consider evidence or arguments not presented to the district court.
  • Murthy v. Missouri, 603 U.S. 43, 67 n.7 (2024) (quoting Gross v. Cicero, 619 F.3d 697, 702 (7th Cir. 2010)): Judges need not search the record for evidence; litigants must identify it.
  • Rollins v. Home Depot USA, 8 F.4th 393 (5th Cir. 2021): Arguments not raised below are forfeited on appeal.
  • McKay v. Novartis Pharmaceuticals Corp., 751 F.3d 694 (5th Cir. 2014) (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841 (5th Cir. 2000)): Reinforces the breadth of district court discretion in discovery.
  • Hope Holdings, Inc. v. Modern American Recycling Services, Inc., 385 So. 3d 337 (La. Ct. App. 1st Cir. 2024): Confirms that when the defendant is in possession, the plaintiff must satisfy the burden aligned with article 3653(A)(1).
  • Pure Oil Co. v. Skinner, 294 So. 2d 797 (La. 1974): The former “good title against the world” standard in petitory actions, superseded in part by the 2023 statutory revision and its Official Revision Comments.
  • Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003): Issues not raised on appeal are waived; applied to the unchallenged erasure/cancellation order.

Legal Reasoning

The panel’s analysis proceeded in two stages: first, whether the district court abused its discretion in denying Rule 56(d) relief; second, whether summary judgment was proper under the clarified summary judgment record. It then addressed the substantive Louisiana standard governing petitory actions under the 2023 revision to article 3653, providing an important methodological clarification for courts applying that statute.

1) Rule 56(d): Specificity and Diligence Are Mandatory

Although Rule 56(d) is “broadly favored,” it is not automatic. A movant must (i) identify specific facts likely to be obtained within a reasonable time that would create a genuine issue of material fact and (ii) demonstrate diligence in pursuing discovery. The plaintiff’s motion asserted that answers to late-served RFAs were “vital” but did not attach the RFAs or explain how any particular admission would defeat summary judgment. This fell short of the required specificity. On diligence, the record showed months of delay before initiating discovery, a focus on arranging a deposition to the exclusion of other tools, and RFAs served only days before the extended deadline. That chronology undercut the claim of diligence. Given the “broad discretion” afforded trial courts in discovery administration, the panel found no abuse of discretion.

2) Summary Judgment: Absence of Evidence Cannot Be Met with Conclusory Assertions

With the Rule 56(d) issue resolved, the court conducted de novo review of summary judgment. The defendant’s motion met its Celotex burden by pointing to the absence of evidence that the plaintiff could carry his trial burden on ownership. The defendant produced extensive chain-of-title proof running from Monroe Phil to the defendant, coupled with evidence of possession dating back to 2006. In response, the plaintiff offered conclusory statements, copies of discovery without analysis, and re-alleged his complaint. That does not establish a genuine dispute under Anderson and Little/Boudreaux.

Moreover, the plaintiff’s appellate references to forged signatures, canceled debts, possession, and the invalidity of a 1928 deed were unavailing because he did not show those materials were presented to the district court. Per Skotak, new evidence is not considered on appeal; and per Rollins, new arguments (including the contention that acquisitive prescription does not apply to this type of petitory action) cannot be raised for the first time on appeal. The Supreme Court’s admonition in Murthy further confirmed that appellate courts will not sift the record to locate evidence not properly directed to the court by the litigant.

3) Petitory Actions after the 2023 Revision to La. C.C.P. art. 3653: One Path Only, Chosen by Possession

The revised article 3653 restructured the plaintiff’s burden by sharpening the distinction between two scenarios:

  • Paragraph (A)(1): If the defendant has possessed the property either (a) for one year after commencing possession in good faith with just title or (b) for ten years, the plaintiff must prove he acquired ownership from a previous owner or by acquisitive prescription.
  • Paragraph (A)(2): “In all other cases,” the plaintiff must prove “better title than the defendant.”

The panel emphasized that a court “is at a fork in the road: It may analyze the claim under paragraph one or paragraph two of subsection A of the statute—not both—and the choice depends on the defendant’s possession of the land.” That interpretive guidance, grounded in the Official Revision Comments (2023) and aligned with Louisiana appellate authority (Hope Holdings), makes clear that the two burdens are mutually exclusive in application. Here, because the defendant had possessed the property since 2006 (well over ten years), paragraph (A)(1) controlled. Under that paragraph, the plaintiff failed because he (i) admitted he had never possessed the property and thus could not meet acquisitive prescription, and (ii) failed to produce evidence that he acquired ownership from a previous owner given the unrefuted chain of title away from his ancestor.

The district court proceeded to analyze paragraph (A)(2) (better title) after finding the plaintiff failed under (A)(1). The Fifth Circuit clarified that such further analysis was unnecessary under the revised statute. Nevertheless, the judgment was affirmed because the failure under (A)(1) was dispositive.

Impact

Although unpublished and thus non-precedential under Fifth Circuit Rule 47.5, Winans v. McKay offers persuasive guidance on several practical and doctrinal fronts.

  • Petitory Actions Under Revised Article 3653:
    • Choice of Burden Is Triggered by Possession: Courts should first determine whether the defendant’s possession meets the paragraph (A)(1) thresholds (one year with good faith and just title, or ten years). If so, the plaintiff must prove acquisition of ownership from a previous owner or by acquisitive prescription; the “better title” route is off the table. If not, proceed under paragraph (A)(2).
    • Litigation Strategy: Plaintiffs suing possessors of ten-plus years cannot rely on nitpicking the defendant’s title or the “better title” paradigm; they must come forward with affirmative proof of their own acquisition of ownership (e.g., a valid chain from a previous owner). Conversely, defendants with longstanding possession can structure their summary judgment strategy around the plaintiff’s inability to meet paragraph (A)(1).
  • Discovery and Rule 56(d) Practice:
    • Specificity Is Crucial: A Rule 56(d) affidavit or motion must identify the precise facts sought, show they likely exist, and explain how they would alter the summary judgment calculus. Attach or quote the key discovery requests; avoid generic assertions that “more discovery is needed.”
    • Diligence Matters: Initiate discovery early, use multiple tools (RFAs, RFPs, interrogatories, depositions), and move to compel if necessary. Last-minute RFAs, standing alone, rarely demonstrate diligence.
  • Appellate Preservation:
    • Build the Record Below: Evidence not before the district court will not be considered on appeal (Skotak). Arguments not raised are forfeited (Rollins). Litigants must connect citations to specific record excerpts; courts will not “hunt for truffles.”
  • Substantive Real Property Takeaway:
    • Land Patents Are Alienable: The plaintiff’s acknowledgment that a land patent can be conveyed away underscores that historical patents do not confer immutable present title. Plaintiffs relying on ancient sovereign grants must still establish an unbroken chain to themselves or satisfy acquisitive prescription.

Complex Concepts Simplified

  • Petitory Action: In Louisiana, a real action by someone claiming ownership of immovable property (typically a non-possessor) to be judicially recognized as owner. It is distinct from a possessory action, which protects possession.
  • Article 3653 (2023 Revision): Establishes two alternative plaintiff burdens depending on the defendant’s possession:
    • (A)(1): If defendant has possessed long enough (one year with good faith and just title, or ten years), plaintiff must prove he acquired ownership from a previous owner or by acquisitive prescription.
    • (A)(2): In all other cases, plaintiff must prove “better title than the defendant.”
  • Acquisitive Prescription: Louisiana’s civil-law analogue to adverse possession — ownership acquired through possession for a statutory period. A plaintiff who never possessed cannot claim ownership via acquisitive prescription.
  • Chain of Title: The chronological sequence of transfers of title. To prove ownership from a previous owner, a plaintiff typically must show a valid chain ending in the plaintiff.
  • Rule 56(d): A procedural mechanism allowing a nonmovant to seek deferral of summary judgment to take discovery, but only with specificity about the facts sought and a showing of diligence in discovery.
  • Summary Judgment: A case is decided without trial when there’s no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. When the nonmovant bears the trial burden, the movant can prevail by showing an absence of evidence; the nonmovant must respond with specific record evidence, not mere allegations.
  • Requests for Admission: Discovery devices aimed at narrowing disputed facts by asking the opposing party to admit or deny statements; they are not substitutes for building the evidentiary record.

Conclusion

Winans v. McKay provides a clear, practical roadmap for applying Louisiana’s revised petitory action statute in federal courts: determine the defendant’s possession first, then take the correct “road” under article 3653 — paragraph (A)(1) if possession thresholds are met, paragraph (A)(2) otherwise. The panel’s insistence on this fork-in-the-road approach harmonizes the text with the Official Revision Comments and Louisiana appellate authority, ensuring that plaintiffs cannot toggle between burdens after failing under the possession-triggered route.

Procedurally, the case reinforces two bedrock principles: Rule 56(d) requires both specificity and diligence, and summary judgment cannot be defeated with conclusory assertions or unpreserved, extra-record materials. For litigants in Louisiana real property disputes, the message is equally direct: longstanding possession by a defendant reshapes the plaintiff’s burden. To prevail, a plaintiff must marshal concrete proof of acquisition from a previous owner or of his own acquisitive prescription — not simply allege better title or rely on historical patents without a present chain. While unpublished, this decision is a persuasive and detailed guide for district courts and practitioners navigating the post-2023 petitory action landscape.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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