360 So.3d 901
La. Ct. App.2023Background
- Kenneth and Gail Troncoso bought Lot 9 in Point Carr Estates in 2002. In 2008, a homeowners association (HOA) was formed and restrictive covenants and by‑laws were executed and recorded for the subdivision; some lot owners signed, others (including the Troncosos) did not.
- A 2010 sale agreement to Richard and Yvette Warren for Lot 9 fell through in early 2011; the Troncosos allege the recorded covenants deterred the buyer.
- The Troncosos demanded a release; a Partial Release was executed in March 2011 but was not signed by all original signatories and was later recorded. The parties then entered a 2011 consent judgment canceling the inscriptions against Lot 9.
- The Troncosos sued the HOA and individual lot‑owners for disturbance of possession, damages, and injunctive relief; the Warren suit (separate) was resolved against the Troncosos on summary judgment for lack of merchantable title.
- In 2019 two individual defendants obtained summary judgment; in 2021 the HOA and remaining individuals filed a “me‑too” motion adopting the earlier filings but submitted only affidavits with their own motion. The trial court granted the 2021 motion and dismissed the Troncosos; the court also denied the Troncosos’ partial summary judgment.
- The court of appeal reversed the grant of summary judgment to defendants, holding the defendants failed to meet their initial burden on summary judgment and the trial court improperly decided issues not raised in the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants met their initial summary‑judgment burden to show absence of factual support for Troncosos’ damages/causation | Troncosos: recording of covenants disturbed possession and caused loss of sale; offered documentary and affidavit evidence | Defendants: argued no causal link or damages and relied on earlier filings and affidavits | Held: Defendants failed to meet initial burden because they did not file the earlier exhibits with their 2021 motion; summary judgment erroneously granted and is reversed |
| Whether defendant‑movants can rely on adopting prior motions/exhibits (a “me‑too” adoption) instead of filing supporting documents with their motion | Troncosos: adoption by reference is insufficient under La. C.C.P. art. 966; all supporting docs must be filed with the motion | Defendants: attempted to adopt McElveen/Tedesco’s 2019 motion and exhibits in extenso | Held: Adoption by reference is insufficient; only documents actually filed with the motion may be considered — movants’ reliance on prior filings was improper |
| Whether the trial court may grant summary judgment on liability when the motion raised only damages/judicial‑estoppel issues | Troncosos: were not given notice to oppose liability; trial court exceeded scope of motion | Defendants: argued affidavits showed no individual liability | Held: Court erred in deciding liability because liability was not an issue raised by the 2021 motion; summary judgment as to liability reversed |
| Reviewability of denial of Troncosos’ partial summary judgment (that covenants were unlawful encumbrance) | Troncosos: sought summary judgment that covenants were unlawful encumbrance on Lot 9 | Defendants: opposed; argued law of the case and other defenses | Held: Denial of plaintiffs’ partial summary judgment was not independently reviewed on appeal (interlocutory and not assigned as error) |
Key Cases Cited
- Hines v. Garrett, 876 So.2d 764 (La. 2004) (per curiam) (standard for summary judgment review).
- In re Succession of Beard, 147 So.3d 753 (La. App. 1 Cir. 2013) (appellate de novo review of summary judgment).
- Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730 (La. 1994) (definition of material fact for summary judgment).
- Viering v. Liberty Mut. Ins. Co., 232 So.3d 598 (La. App. 1 Cir. 2017) (documents must be filed with the motion to be considered).
- Forstall v. City of New Orleans, 238 So.3d 465 (La. App. 4 Cir. 2018) (cannot rely on evidence located elsewhere in the record instead of attaching it to the motion).
- Duran v. Paul’s Deli Juicy Juicy, L.L.C., 348 So.3d 735 (La. App. 1 Cir. 2021) (court may consider only documents filed in support or opposition to motion).
- Cutrone v. English Turn Property Owners Ass’n, 293 So.3d 1209 (La. App. 4 Cir. 2020) (purpose of La. C.C.P. art. 966(F) — prevent summary‑judgment ambush by limiting issues to those raised).
- Horrell v. Allmont, 309 So.3d 754 (La. App. 1 Cir. 2019) (mover must attach proof of essential facts to carry burden on motion).