SARA LAB. v. SYSCO FOOD SERVICES, 2009-0623 (La.App. 1 Cir. 11/3/09)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] McDONALD, J. CONCURRING:

I have no issue with the findings of the majority, but have some disagreement on whether the trial court and this court can consider unverified documents or a document that is not an affidavit. The majority states that "Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to utilize unsworn and unverified documents to support a motion for summary judgment." These articles do not prohibit such documents; article 967 "describes the type of documentation a party may submit in support of or in opposition to a motion for summary judgment". Lewis v. Jabbar, 5 So. 3d 250, 254 (La. App. 1^st Cir. 1/12/09). There is no prohibition against any types of documents.

In our case, both sides are represented by very competent counsel. The plaintiff did not object to the offering of the accident report by the defendants. In fact, the plaintiffs brief references the accident report along with his expert's report as supporting his theory and opposing the argument in favor of summary judgment. At oral argument he pointed out deficiencies in the accident report that supported his position. Thus, it seems to me, as a practical matter, when there is no objection to the introduction of certain documents or evidence into the record, we, as well as the trial court should consider the evidence. I do not believe we should provide an objection to the form of evidence when none has been made by counsel for either side who both appeared at the hearing.

The majority cites Lewis and Bunge as support for the proposition that we are prohibited from considering such evidence. However, unlike the case before us, in Bunge, the plaintiff argued that the evidence was not competent summary judgment evidence and the court agreed. In Lewis it is not known whether the opposing party objected to the consideration of the documents. If they had, then they certainly should not have been considered. However, if there was no objection, then I believe the court should consider them. Had the parties made a joint offering of the accident report, would we reach the same result?

For these reasons I concur in the majority opinion.