MISITA v. CAIME LLC III III III LLC LLC (2026)

In this matter involving claims of property damage resulting from flooding, Plaintiffs/Appellants appeal a summary judgment rendered in favor of Defendant/Appellee, Cosmos Industries, LLC (“Cosmos”), which denied Plaintiffs’ request for injunctive relief and dismissed all of Plaintiffs’ claims against Cosmos with prejudice. For the reasons that follow, we reverse.

BACKGROUND

This appeal arises from one of at least three lawsuits filed in the Twenty-Second Judicial District Court (“22nd JDC”) by Anthony Misita, individually and d/b/a Daydreamer Stables, Glenn Torres, and Linda Torres (collectively, “Plaintiffs”), involving a purported manipulation of the natural hydrology of the Lake Ramsey area of St. Tammany Parish that allegedly resulted in the flooding of Plaintiffs’ properties. Plaintiffs are the owners of properties located adjacent to the Lake Ramsey subdivision. This Court's prior opinion sets forth the background and procedural history of these matters. Misita v. Caime, 2022-0070 (La. App. 1 Cir. 4/3/23), 364 So.3d 515, 518-23.¹

FACTS AND PROCEDURAL HISTORY

On September 23, 2019, Plaintiffs filed suit in Docket No. 2019-15014 in the 22nd JDC, allotted to Division I, Judge Reginald Badeaux, III, from which the instant appeal is taken. Plaintiffs filed a petition for preliminary and permanent injunctive relief with a reservation of rights to assert damages at a later date. Plaintiffs asserted various claims, including claims against individual homeowners and lot owners in Lake Ramsey Subdivision, including Defendant herein, Cosmos. Cosmos is a Louisiana limited liability company wholly owned by Mark Dennis, M.D., and is the owner of the unimproved individual Lot 161 in Phase IV-A of Lake Ramsey Subdivision. Plaintiffs alleged that their properties sustained damage from flooding caused by the development of Lake Ramsey Subdivision. Misita, 364 So.3d at 520.

Prior to the development of Lake Ramsey Subdivision, Plaintiffs alleged their property (dominant estate) was higher in elevation than the property which later became Lake Ramsey Subdivision (servient estate). As the subdivision developed, Plaintiffs averred that the developers excavated portions of the subdivision to raise its elevation, thereby interfering with the natural servitude of drainage. Plaintiffs claimed they suffered and continue to suffer severe flooding to their property. Plaintiffs further alleged that beginning in 2016, the homeowner Defendants and lot owner Defendants purchased property in Lake Ramsey Subdivision, and thereafter, constructed “acts of man” that increased the amount and burden of flooding on Plaintiffs’ properties.

Plaintiffs sought preliminary and permanent injunctive relief, specifically: (a) a decree that violations of La. C.C. arts. 655 ² and 656 ³ occurred through Defendants’ ”acts of man” that prevented the flow of waters from Plaintiffs’ properties and increased the burden of drainage from Defendants’ properties onto Plaintiffs’ properties, resulting in trespasses that should be prohibited; (b) a preliminary, and thereafter, permanent injunction prohibiting Defendants from violating the natural drainage servitude in favor of Plaintiffs’ properties as well as their acts of trespass onto Plaintiffs’ properties; (c-d) an order for the removal of Defendants’ ”works of man” that caused or contributed to violations of the natural drainage servitude in favor of Plaintiffs’ properties; and (e) an order that no further building permits for any “works” or “acts of man” be applied for or granted that may cause or contribute to violations of the natural drainage servitude in favor of Plaintiffs’ properties. Plaintiffs also reserved their rights to assert damages at a later date.

On March 25, 2024, Cosmos filed a motion for summary judgment seeking dismissal of Plaintiffs’ claims against it for permanent injunctive relief.⁴ Cosmos contended that Plaintiffs withdrew their request for preliminary injunctive relief and sought permanent injunctive relief. Cosmos argued that Plaintiffs failed to provide any factual support beyond conclusory allegations, improbable inferences, and unsupported speculation that Cosmos's unimproved lot was ever the subject of a natural drainage servitude directly affecting Plaintiffs’ properties at some time in the distant past. Cosmos averred that any natural drainage servitude disappeared as a matter of law when the topography of the natural land, having nothing to do with the unimproved Cosmos lot, was irrevocably changed by the lawful acts of the developers and parish government long before subsequent events involving Phase-IV-A subdivision development. Cosmos also argued that Plaintiffs failed to show irreparable harm as is required when requesting permanent injunctive relief.

Plaintiffs did not file an opposition to Cosmos's motion for summary judgment.

The trial court held a hearing on Cosmos's motion for summary judgment on June 4, 2024, and granted Cosmos's motion for summary judgment. On June 12, 2024, the trial court signed a judgment granting Cosmos's motion for summary judgment and dismissing Plaintiffs’ claims against Cosmos with prejudice. Plaintiffs appealed the trial court's June 12, 2024 judgment.⁵

After the lodging of the appeal, this Court issued a show cause order on July 22, 2025, noting that the June 12, 2024 judgment appeared to lack appropriate decretal language disposing of and/or dismissing any claims. Thereafter, the trial court signed an amended judgment on August 5, 2025, that granted summary judgment in favor of Cosmos and against Plaintiffs and dismissed Plaintiffs’ claims against Cosmos with prejudice.

On October 22, 2025, the record was supplemented with the August 5, 2025 amended judgment that corrected the identified deficiencies noted in the show cause order and complied with La. C.C.P. arts. 1918(A), 1951, and 2088(A)(12). Because we find that the August 5, 2025 amended judgment is a valid final judgment, we maintain the appeal.

LAW AND DISCUSSION

On appeal, Plaintiffs contend the trial court erred in granting summary judgment in favor of Cosmos and dismissing all of Plaintiffs’ claims against Cosmos, instead of merely holding that Plaintiffs were not entitled to permanent injunctive relief in the form of a mandatory injunction ordering the removal of “acts of man” interfering with Plaintiffs’ drainage servitude.

Motion for Summary Judgment

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Grady v. Ahles, 2024-0244 (La. App. 1 Cir. 12/20/24), 404 So.3d 886, 890. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Leet v. Hospital Service District No. 1 of East Baton Rouge Parish, 2018-1148 (La. App. 1 Cir. 2/28/19), 274 So.3d 583, 587.

The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1); Young v. Doe, 2025-0527 (La. App. 1 Cir. 11/21/25), 424 So.3d 859, 863. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1); Young, 424 So.3d at 863. This “pointing out” must be more than a bare assertion in a motion for summary judgment or brief. Aucoin v. State Through Terrebonne Levee & Conservation District, 2025-0879 (La. App. 1 Cir. 4/24/26), ––– So.3d ––––, ––––, 2026 WL 1122119, *2; Sheppard v. City of Baton Rouge, 2002-2421 (La. App. 1st Cir. 9/17/04), 897 So.2d 25, 30, writ denied, 2004-2566 (La. 1/14/05), 889 So.2d 268; LeBlanc v. Michael E. Powers Constr., Inc., 2021-0267 (La. App. 1 Cir. 10/18/21), 2021 WL 4844340, *8 (unpublished) (“A mover who does not support his motion with any affidavits, depositions, or other evidence to point out the alleged lack of support for this element of the plaintiff's case or identify those portions of the pleadings that he believes demonstrates the absence of a genuine issue of material fact does not meet his initial burden of proof.”).

Once the mover's burden is met, the burden shifts to the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1); see also Keller v. Case, 99-0424 (La. App. 1 Cir. 3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La. 9/29/00), 770 So.2d 354. If the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Sylvest v. Rolling, 2024-0408 (La. App. 1 Cir. 11/13/24), 405 So.3d 988, 991. If the adverse party fails to meet this burden, the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1); Young, 424 So.3d at 863. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Mandeville Partnership v. A Luxury Transportation, LLC, 2025-0286 (La. App. 1 Cir. 1/29/26), 427 So.3d 1268, 1273.

Summary judgment is appropriate for determining issues related to a party's entitlement to permanent injunctive relief. See Clipper Estates Master Homeowners’ Association, Inc. v. Harkins, 2013-1833 (La. App. 1 Cir. 9/30/14), 2014 WL 4892546, *3 (unpublished). Injunction proceedings are governed by Louisiana Code of Civil Procedure articles 3601-3613. An injunction is an ordinary proceeding in which the plaintiff seeks a permanent injunction compelling the defendant to do an act or barring him from acting. In re Interdiction of Wright, 2013-0862 (La. App. 1 Cir. 3/27/14), 144 So.3d 7, 11, writ denied, 2014-0832 (La. 6/20/14), 141 So.3d 810. The writ of injunction is a harsh, drastic, and extraordinary remedy. Morris v. Trust Technologies, LLC, 2018-0831 (La. App. 1 Cir. 2/28/19), 274 So.3d 15, 18. Injunctive relief may be granted in cases where irreparable injury, loss, or damage may otherwise result to the applicant, and in other cases specifically provided by law. Wright, 144 So.3d at 12. Irreparable injury is a loss that cannot be adequately compensated in money damages or is not susceptible of measurement by pecuniary standards. Wright, 144 So.3d at 12.

Failure to File an Opposition to a Motion for Summary Judgment

In the instant matter, there is no dispute that Plaintiffs did not oppose Cosmos's motion for summary judgment. The 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. La. C.C.P. art. 966(D)(1); Crockerham v. Louisiana Medical Mutual Ins. Co., 2017-1590 (La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608. Even in the absence of formal opposition, the moving party must show that he is entitled to summary judgment. James as Co-Trustees of Addison Family Trust v. Strobel, 2019-0787 (La. App. 1 Cir. 6/24/20), 2020 WL 3446635, *4 (unpublished).

In deciding a summary judgment motion, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Crockerham, 255 So.3d at 608. The mover's supporting documentary evidence must prove the essential facts necessary to carry his burden. McKnight v. Villareal, 2023-015 7 (La. App. 1 Cir. 10/18/23), 3 77 So.3d 294, 299. A mover that fails to file or reference documentary evidence supporting his motion cannot satisfy his initial burden of proof. See La. C.C.P. art. 966(A)(4) and (D)(1); McKnight, 377 So.3d at 299-300. Therefore, we must first conduct a de novo review of the evidence submitted with the motion for summary judgment and determine if Cosmos successfully proved there were no genuine issues of material fact.

Cosmos's Motion for Summary Judgment

Cosmos sought a summary judgment dismissing Plaintiffs’ lawsuit for permanent injunctive relief against it with prejudice. Cosmos argued that Plaintiffs had failed to provide any factual support beyond conclusory allegations, improbable inferences, and unsupported speculation that Cosmos's unimproved lot was ever the subject of a natural drainage servitude directly affecting Plaintiffs’ properties at some time in the distant past. Cosmos further argued that Plaintiffs were unable to prove the statutory requirements for a permanent injunction as a matter of law because they cannot establish that they have suffered irreparable harm.

In support of its motion for summary judgment, Cosmos filed a memorandum, which included a statement of undisputed material facts, and the affidavit of Dr. Dennis, the owner of Cosmos. No other documents were filed or referenced in support of Cosmos's motion for summary judgment.⁶ See La. C.C.P. art. 966(A)(4).

We begin our de novo review with Cosmos's memorandum and statement of undisputed material facts. Louisiana District Court Rule 9.10(a) sets forth:

A memorandum in support of a motion for summary judgment shall contain:

(1) A list of the essential legal elements necessary for the mover to be entitled to judgment;

(2) A list of the material facts that the mover contends are not genuinely disputed; and

(3) A reference to the document proving each such fact, with the pertinent part containing proof of the fact designated.

The record shows that Cosmos's memorandum only partially satisfied the elements of Louisiana District Court Rule 9.10(a). While Cosmos detailed the facts it contends are undisputed, Cosmos did not file any documents, as listed in La. C.C.P. art. 966(A)(4), to support the facts it contends are undisputed. Furthermore, Cosmos's memorandum failed to include a list of essential legal elements.

And while Cosmos filed the affidavit of Dr. Dennis in support of its motion for summary judgment, we find that the affidavit is not competent evidence for use in support of a motion for summary judgment. Louisiana Code of Civil Procedure article 967(A) sets forth, in pertinent part: “[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” In his affidavit, Dr. Dennis attested:

DR. MARK DENNIS, MD

a person of full age of majority and a resident of St. Tammany Parish, State of Louisiana, who after being duly sworn, did depose and state the following:

1. He is the Officer and Member of Cosmos Industries, LLC.

2. The Motion and Memorandum in Support of Summary Judgment for Permanent Injunctive Relief and Statement of Uncontested Facts attached to this Affidavit are true and correct to the best of his knowledge.

Affidavits which are devoid of specific facts do not satisfy the requirements that a summary judgment be made on personal knowledge. Wolfe v. Quad-Area Community Action Agency, Inc., 2022-0203 (La. App. 1 Cir. 9/16/22), 352 So.3d 992, 995, writ not considered, 2022-01625 (La. 1/11/23), 352 So.3d 562. Dr. Dennis's affidavit fails to identify any admissible facts showing that he has personal knowledge of the matters set forth in the affidavit; moreover, there are no facts and no matters set forth in his affidavit that support Cosmos's motion for summary judgment. His affidavit merely adopts the truthfulness and correctness of other documents “to the best of his knowledge.” However, affidavits that are devoid of specific underlying facts to support a conclusion of ultimate “fact” are not legally sufficient to establish that there were no genuine issues of material fact and that movers were entitled to judgment as a matter of law. Successions of Millet, 2021-0355, 2021-0356 (La. App. 1 Cir. 12/22/21), 340 So.3d 252, 258 n.3. No matter how apparently reliable, “information and belief’ or “the best of his knowledge” are universally rejected as a substitute for personal knowledge and thus cannot form the basis of a motion for summary judgment. See Roach v. Moffatt, 55,415 (La. App. 2 Cir. 1/10/24), 379 So.3d 268, 273.

In referencing the motion and memorandum in his affidavit, Dr. Dennis points to legal argument. While a memorandum is a proper document under La. C.C.P. art. 966(A)(4) that can be used by a party to advance his arguments in support of or in opposition to motion for summary judgment, a memorandum is not evidence. See Comments-2015, Comment (c) to La. C.C.P. art. 966. “The memorandum in a summary judgment case is like the opening statements and closing arguments made by an attorney in a trial. Evidence cannot be introduced in an opening statement or closing argument. Likewise, evidence cannot be introduced in a memorandum since it is the arguments of the parties.” Robinson v. Cheng, LLC, 2022-1130 (La. App. 1 Cir. 7/10/23), 372 So.3d 7, 13 (Holdridge, J., concurring).

Similarly, a statement of undisputed material facts is not evidence unless each factual assertion is independently supported by an admissible summary judgment document listed in La. C.C.P. art. 966(A)(4). See Troncoso v. Point Carr Homeowners Association, 2022-0530 (La. App. 1 Cir. 1/10/23), 360 So.3d 901, 914-15 (the mover's supporting documents must prove the essential facts necessary to carry the mover's burden); see also James as Co-Trustees of Addison Family Trust v. Strobel, 2019-0787 (La. App. 1 Cir. 6/24/20), 2020 WL 3446635, *4 (unpublished) (prior to La. C.C.P. art. 966’s amendment adding La. C.C.P. art. 966(A)(4)(b), where defendants/plaintiffs-in-cross-claim filed no documents or evidence in support of their motion for summary judgment on their cross-claim, but only a “Statement of Undisputed Facts” that referenced exhibits attached to the original plaintiffs motion for summary judgment on the main demand, defendants/plaintiffs-in-cross-claim failed to carry their burden on their motion).

Therefore, we find that Dr. Dennis's affidavit alone, without independent support from an admissible summary judgment document listed in La. C.C.P. art. 966(A)(4), is not sufficient to carry Cosmos's burden of proof on its motion. See La. C.C.P. arts. 966 and 967; Lancaster v. Tryforos, 2025-0221 (La. App. 1 Cir. 12/30/25), 427 So.3d 804, 817.

Accordingly, we find that Cosmos failed to carry its initial burden of proof on its motion for summary judgment. See Crockerham, 255 So.3d at 608. Although Cosmos argued that Plaintiffs lacked factual support sufficient to establish essential elements of their claims (including the existence of a natural drainage servitude and whether Cosmos's lot was ever subject to that servitude, and irreparable harm), Cosmos failed to support its contentions with competent summary judgment evidence. Cosmos's memorandum in support of its motion for summary judgment constituted argument, not evidence, and its statement of undisputed material facts was not supported by admissible summary judgment documents establishing the facts asserted therein. Moreover, Dr. Dennis's affidavit did not cure those deficiencies because it set forth no specific facts, but merely attested that Cosmos's motion, memorandum, and statement of uncontested facts were “true and correct to the best of his knowledge.” Such a conclusory attestation does not satisfy the requirements of La. C.C.P. art. 967(A), nor does it transform the factual assertions contained in Cosmos's memorandum or statement of undisputed material facts into competent summary judgment evidence. Thus, Cosmos's assertion that Plaintiffs lacked factual support for their claims rested upon argument and unsupported factual assertions, rather than competent summary judgment evidence. Because Cosmos failed to make the threshold showing necessary to satisfy its initial burden under La. C.C.P. art. 966(D)(1), the burden never shifted to Plaintiffs to produce factual support sufficient to establish the existence of a genuine issue of material fact. Therefore, under our de novo review, we find that the trial court erred in granting Cosmos's motion for summary judgment and in dismissing all of Plaintiffs’ claims against Cosmos with prejudice. Accordingly, we reverse the summary judgment granted in favor of Cosmos.⁷

DECREE

We reverse the trial court's August 5, 2025 amended judgment. All costs of this appeal are assessed to Defendant/Appellee, Cosmos Industries, LLC.

APPEAL MAINTAINED; REVERSED.

The mover on summary judgment has the option to “point out to the court the absence of factual support for one or more elements essential to the adverse party's claim.” La. C.C.P. art. 966(D)(1). In doing so, memoranda, affidavits, and admissions “may” be filed or referenced in support. La. C.C.P. art. 966(A)(4)(a). The burden then shifts to the plaintiff to produce factual support sufficient to establish the existence of a genuine issue of material fact. La. C.C.P. art. 966(D)(1). The plaintiff produced nothing.

Cosmos contends that plaintiffs cannot meet their burden of establishing the essential element of irreparable harm in their quest for permanent injunctive relief. To the extent that the majority concludes that Cosmos “did not file supporting documents that were sufficient to resolve all material fact issues and therefore did not satisfy its initial burden of proof on its motion for summary judgment,” I disagree. The initial burden on the mover can ordinarily be met by “submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent's case.” Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So. 3d 607, 612.

Moreover, a motion for summary judgment may be supported by affidavits made on personal knowledge. La. C.C.P. arts. 967 & 966(A)(4)(a). I believe Dr. Dennis's affidavit, based on his personal knowledge as an officer and member of Cosmos, affirmatively established that he was competent to attest to the undisputed material facts surrounding Cosmos’ purchase of the unimproved lot and the lack of any work or activity on that lot as set forth in his attached statement of uncontested facts. See La. C.C.P. art. 967. In pointing to the lack of a factual basis for the essential element of irreparable harm, Dr. Dennis attests that Cosmos performed no work nor altered the terrain in any such way that would cause plaintiffs irreparable harm. In its supporting memorandum, Cosmos contends that plaintiffs have failed to allege irreparable harm and reference plaintiffs’ response to requests for admission that when asked to admit that Cosmos did nothing to damage plaintiffs’ properties, plaintiffs answered, “Denied. This request for admission is premature.” Cosmos contends that in the ten-year history of this litigation, plaintiffs have failed to come forth with any evidence to show that Cosmos has done anything to harm them, or to alter the natural drainage servitude.

Under La. C.C.P. art. 966, Cosmos did not bear the burden of proof at trial on the issue before the court, and its burden on the motion did not require it to negate all essential elements of the plaintiffs’ claims - Cosmos merely had to point to the absence of factual support for one element essential to the plaintiffs’ underlying claim. See La. C.C.P. art. 966(D)(1). I believe that its motion, memorandum in support, reference to plaintiffs’ response to requests for admissions, and affidavit of Dr. Dennis with attached statement of uncontested material facts were sufficient to support its motion and to “point out” the absence of the element of irreparable harm. Anything beyond that requires Cosmos to prove a negative, which the defendant mover is not required to do under Article 966. See Hardisty v. Walker, 2025-00239 (La. 6/3/25), 410 So. 3d 774, 779; Chank v. Starr Indemnity & Liability Insurance Company, 2024-01552 (La. 4/1/25), 403 So. 3d 1110, 1111 (“the court of appeal erroneously found that, ‘[a]s the movers, it was DOTD's and Stripe-A-Zone's burden to establish that proper signage was in place at the location of the accident.’ To the contrary, and pursuant to LSA-C.C.P. art. 966(D)(1), applicants were merely required to point out an absence of evidence sufficient to establish one or more elements of the adverse party's claim, action, or defense.”); Monroe v. Ammari of Louisiana, L.L.C., 25-235 (La. App. 5th Cir. 4/30/26), 2026 WL 1181887, *4 (unpublished) (“As the mover, Boulevard bears the burden of proof of its motion; however, since Boulevard will not bear the burden of proof at trial, it needs only point out that there is an absence of factual support for one or more elements essential to Plaintiff's claim. La. C.C.P. art. 966(D)(1). Here, Boulevard has pointed out that there is an absence of factual support for an element essential to Plaintiff's whistleblower retaliation claim, to-wit: an actual violation of state law by Boulevard. Plaintiff alleges only that his co-employee, Mike, violated the law (i.e., stealing tips and assault/battery)—he makes no allegation that Boulevard itself violated any law. The burden then shifted to Plaintiff to provide factual support for this essential element of his whistleblower claim.”); Ellis v. Quiett, 2019-0065 (La. 3/25/19), 266 So. 3d 887, 888 (“Because Plaza Holdings will not bear the burden of proof at trial that it had a duty to protect Ellis from the criminal acts of third persons, Plaza Holdings’ burden was ‘to point out to the court the absence of factual support for one or more elements essential’ to the plaintiff's claims.”).

Although the majority's position that the mover on summary judgment is required to do more than “simply point out” an absence of factual support for the adverse party's claim is supported by jurisprudence from this court, its’ analysis is nonetheless flawed in its disregard of the clear and unambiguous statutory language that the mover on summary judgment must “point out to the court the absence of factual support for one or more elements essential to the adverse party's claim.” La. C.C.P. art. 966(D)(1). I believe this jurisprudentially created approach departs from the straight forward, plain reading of La. C.C.P. art. 966(D)(1) and the cases cited herein and diminishes the favor statutorily afforded the summary judgment procedure. See La. C.C.P. art. 966(A)(2) (“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action[.] The procedure is favored and shall be construed to accomplish these ends.”); Evans v. Abubaker, Inc., 2023-00955 (La. 5/10/24), 384 So. 3d 853, 857; 23rd Psalm Trucking, L.L.C. v. Madison Parish Police Jury, 2024-00808 (La. 6/27/25), 413 So. 3d 370, 375.

For these reasons, I respectfully dissent.

FOOTNOTES

1.   Plaintiffs’ first suit, Docket Number 2013-14638, was filed on October 2, 2013, and was allotted to Division C, Judge Richard A. Swartz. In the Division C suit, Plaintiffs alleged that their property, located on Major Lane in St. Tammany Parish, sustained damage from flooding due to the actions or inactions of Defendants surrounding the development of Lake Ramsey Subdivision. Defendants in the Division C suit were: (1) the developers of Lake Ramsey Subdivision: John Mamoulides, One Consort International, L.L.C. (“OCI”), Lakelots, Inc., Lake Ramsey Development, Intrepid, Inc., and Southeast Investments, LLC; (2) the St. Tammany Parish Government (“STPG”) and individual STPG elected officials and/or employees: Paul Carroll, Kevin Davis, Joey Lobrano, Brian K. Fortson, and James A. “Red” Thompson; (3) a utility subcontractor and its president: Artesian Utility Company, Inc. (subcontractor of OCI) and David Guidry; and (4) the Homeowners Association of Lake Ramsey, Inc. Plaintiffs sought injunctive relief, damages, attorney fees, and declaratory judgment against Defendants. Misita, 364 So.3d at 518-19.Plaintiffs filed a second lawsuit in the 22nd JDC on August 29, 2019. This second suit, Docket Number 2019-14575, was allotted to Division F, Judge Vincent Lobello. In the Division F suit, Plaintiffs asserted claims against Artesian Services, LLC and Colony Insurance Company (insurer of OCI, Artesian Services, LLC, and its predecessor entity) and David Guidry. Plaintiffs’ petition in the Division F suit stated that “[t]he underlying facts upon which petitioners rely and the factual bases for the claims and causes of action against [D]efendants named herein are as set forth in the various petitions and amended petitions in [the Division C suit] and are incorporated herein by reference as if copied herein in extenso[.]” Misita, 364 So.3d at 519.

2.   Louisiana Civil Code article 655 sets forth: “An estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above unless an act of man has created the flow.”

3.   Louisiana Civil Code article 656 provides: “The owner of the servient estate situated below may not do anything to prevent the flow of the water. The owner of the dominant estate situated above may not do anything to render the servitude more burdensome.”

4.   In its motion for summary judgment, Cosmos indicated that it filed an answer to Plaintiffs’ petition as well as dilatory exceptions. However, those pleadings are not a part of the record on appeal.Furthermore, beginning in August 2020, a number of homeowner and lot owner Defendants in the Division I suit filed third-party demands or cross-claims against the subdivision developers, parish government, and others. The allegations of those incidental demands included that those Cross-Defendants/Third-Party Defendants failed to disclose the pending suit in Division C prior to the sale of property to the homeowner and lot owner Defendants and that certain actions and inactions by those Cross-Defendants/Third-Party Defendants allegedly caused flooding to Plaintiffs’ properties, resulting in Plaintiffs filing suit against the homeowner and lot owner Defendants and an injunction being issued enjoining lot owner Defendants from building or performing work on the lots. The Cross-Claimants/Third-Party Plaintiffs sought relief including rescission of the sale and return of the purchase price, indemnification, and other damages and remedies. Misita, 364 So.3d at 521. There are no pleadings contained in the instant record on appeal to show whether Cosmos is a Cross-Claimant/Third-Party Plaintiff as described herein.

5.   The 22nd JDC Clerk of Court mailed notice of judgment to the parties on June 17, 2024. Plaintiffs filed a motion for devolutive appeal on June 26, 2024. The trial court signed an order of appeal on June 27, 2024, notice of which was transmitted by the 22nd JDC Clerk of Court to the parties on July 12, 2024.

6.   On the fifth page of its memorandum in support of its motion for summary judgment, Cosmos states: “When the Plaintiffs were asked to admit that these Movers have done nothing to damage the Plaintiffs’ respective properties the answer was ‘Denied. This request for admission is premature.’ ” Louisiana Code of Civil Procedure article 966(A)(4)(b) allows a party to reference any document listed in La. C.C.P. art. 966(A)(4)(a) that has been previously filed into the record. However, there are no admissions by Plaintiffs that have been previously filed into the record. An excerpt copied from an unidentified “admission” that has not previously been filed into the record and that was pasted into a memorandum is not admissible evidence for summary judgment purposes. Evidence cannot be introduced in a memorandum. Robinson v. Cheng, LLC, 2022-1130 (La. App. 1 Cir. 7/10/23), 372 So.3d 7, 13 (Holdridge, J., concurring).

7.   Nothing in this opinion shall prevent Cosmos from filing any subsequent motion for summary judgment that complies with La. C.C.P. arts. 966 and 967 and the applicable summary judgment law.

EDWARDS, J.

Wolfe, J. dissents without reasons. Miller, J. dissents with reasons.