Aydell v. Sterns , 731 So. 2d 189 ( 1999 )

731 So.2d 189 (1999)

Wilbert P. AYDELL
v.
Leon STERNS, Slim Wilson, Frank Stewart, Frank Sarter, All Executive Officers, Agents, Directors, or Employees of Delta Engineers and Company; Jessie Rimer, Rex McKinley, Gerald McKinley, All Executive Officers, Agents, Directors, or Employees of C.S. Falco Inc.; Melvin Parker, Leonard Sharp, Jack Goodman, All Executive Officers, Agents, Directors, or Employees of Barnard and Burke and Company; Clemco; Pulmosan, Formerly Clementina; E.D. Bullard, Co.; and Mine Safety Appliances.

No. 98-C-3135.

Supreme Court of Louisiana.

February 26, 1999.

Writ granted. The Court of Appeal has erroneously held that the trial court could not rely on the evidence submitted by the defendant CIGNA in support of its motion, simply because the affidavits and deposition testimony were attached to the Memorandum in Support of the Motion and not to the Motion itself. Such a requirement undermines the use of summary judgment procedures to "secure the just, speedy, and inexpensive determination of every action." La.C.C.P. art. 966(A)(2). Moreover, we note that the plaintiff did not raise the issue of this alleged procedural error in its appeal to the First Circuit. Also significant is the defendant's uncontested assertion that the Motion and Memorandum in Support were filed with the trial court simultaneously, in accordance with that court's local rules. Thus, the information contained in the affidavits and deposition testimony submitted by the defendant was properly before the trial court and should have been considered by the Court of Appeal. The case is therefore remanded to the Court of Appeal for consideration of the merits of the defendant's motion for summary judgment.

JOHNSON, J., would deny the writ.

TRAYLOR, J., not on panel.