Phipps v. Schupp

• Decision Date: 18 March 2015
• Docket Number: No. 2014–CA–0672.,2014–CA–0672.
• Citation: 163 So.3d 212
• Parties: Roger D. PHIPPS v. Cynthia Nelson SCHUPP, et al.
• Court: Court of Appeal of Louisiana — District of US

163 So.3d 212

Roger D. PHIPPS

v.Cynthia Nelson SCHUPP, et al.

No. 2014–CA–0672.

Court of Appeal of Louisiana, Fourth Circuit.

March 18, 2015.

Evanthea P. Phipps, Phipps & Phipps, New Orleans, LA, for Plaintiff/Appellee.

Michael L. DeShazo, Henry W. Kinney, III, Christine W. Adams, Kinney, Ellinghausen, Richard & Deshazo, New Orleans, LA, for Defendant/Appellee.

Louis C. LaCour, Jr., Marshall A. Hevron, Adams and Reese LLP, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART ).

Opinion

PAUL A. BONIN, Judge.

Roger Phipps claims that the property belonging to his next-door neighbors is burdened with a servitude of vehicular passage in favor of his property or, in the terminology of the Civil Code, his estate. Some years ago the trial court granted summary judgment in favor of those neighbors, Cynthia Schupp and Roland Cutrer, Jr.,¹ but the Louisiana Supreme Court reversed that judgment and remanded the matter to the trial court. On remand, the trial court again granted summary judgment but this time in favor of Mr. Phipps. The trial court ruled that a gratuitous servitude of passage under Article 694 of the Civil Code had been created by the common ancestor-in-title and that the Schupps were required, at their expense, to tear down the fence built by them, as well as a portion of their home, which was constructed by their vendor, in order to permit Mr. Phipps' exercise of his right of vehicular passage over the Schupps' property. The Schupps have suspensively appealed this summary judgment.²

Following our de novo review, we conclude that a genuine issue of material fact exists as to whether Mr. Phipps' estate is enclosed, rendering summary judgment under Article 694 improper. Moreover, we find that the trial judge committed legal error in failing to recognize that subsequent third-party purchasers, including the Schupps, are protected by the Public Records Doctrine and cannot be obligated to afford gratuitous passage across their property in this circumstance. The Public Records Doctrine requires that Mr. Phipps timely exercise his right to have this servitude fixed either by agreement with Richard Katz, the common ancestor-in-title, or by judgment of the court before Mr. Katz sold his property to a third-party purchaser. Accordingly we reverse the granting of the summary judgment creating a gratuitous servitude of passage in favor of Mr. Phipps under Article 694.

We next consider whether the summary judgment in favor of Mr. Phipps could nonetheless be upheld under Article 741 of the Civil Code, which provides for the establishment of a servitude (of passage) by the destination of the owner. But we conclude after our de novo review that the summary judgment and relief granted to Mr. Phipps in the trial court cannot be supported by a finding that an apparent servitude of vehicular passage exists under Article 741 because genuine issues of material fact remain as to whether this apparent servitude was created as of right by informal destination and, if so, whether the extent and manner of use of this servitude was vehicular or only pedestrian in nature.

Because Mr. Phipps, however, may be able to establish after a trial on the merits that he is entitled to demand either in his now-converted petitory action a servitude of vehicular passage under Article 741 from the Schupps or, if unsuccessful, to have a legal servitude of vehicular passage fixed under Article 689 of the Civil Code from either the Schupps or another neighbor, we remand this matter to the trial court for further proceedings.

We explain our decision in considerably greater detail below. In Part I we set out the background facts which are necessary to an understanding of our decision, review the course of the litigation, and summarize the Schupps' assignments of error and the parties' arguments in briefing. In Part II we discuss the reasons why we find that the trial judge erred in granting summary judgment to Mr. Phipps and in fixing a servitude of vehicular passage under Article 694. In Part III we highlight and reiterate the Supreme Court's earlier decision that there are genuine issues of material fact which preclude summary judgment granting relief to Mr. Phipps under Article 741, thereby necessitating remand again. Then in Part IV we address the alternative possibility pointed to by the Supreme Court's decision in this matter that, if an apparent servitude of vehicular passage was not created by informal destination of Mr. Katz under Article 741, Mr. Phipps would be entitled to the fixing of an indemnified servitude under Article 689 because his estate would be enclosed. In addressing this alternative we reject the Schupps' contentions that Mr. Phipps' property is not enclosed because of a 1928 City of New Orleans Municipal Ordinance respecting access to Exposition Boulevard in Audubon Park or because Mrs. Phipps, a co-owner in indivision with Mr. Phipps, having confessed under oath that she acquiesced to the construction made by the Schupps' vendor, self-enclosed their estate. In Part V we summarize the practical consequences of our holding with regard to its effects on the parties.

I

In this Part we first set forth the facts pertinent to our review of the trial judge's ruling on the parties' respective motions for summary judgment. We then relate the course of the proceedings to date, and lastly we summarize the Schupps' assignments of error and the parties' arguments contained in their respective briefings.

A

The uptown New Orleans properties at issue in this dispute are adjacent to each other. They both face Exposition Boulevard, which is neither a public nor a private street; rather, it is a pedestrian sidewalk on the eastern border of Audubon Park. 541 Exposition is currently owned in indivision by Mr. Phipps, the plaintiff-appellee, and his wife, who, again, is not a party. 543 Exposition Boulevard is currently owned by the Schupps, the defendants-appellants; the lot borders Patton Street where that public road dead-ends at Exposition Boulevard.

Originally, both properties were owned by Richard Katz. According to surveys, the homes situated on them may have at some point been joined together by a common bathroom or shared an outdoor deck. In 1978, Mr. Katz formally subdivided the single lot, then-designated as Lot F, into Lots F–1 (541) and F–2 (543). He then sold Lot F–1 (541) to Michael Botnick but retained ownership of Lot F–2 (543), which has direct access to Patton Street. Thus, Mr. Katz may have enclosed Lot F–1 (541) at the time of its sale. The sale is the genesis of this controversy because Lot F–1 (541) has no direct vehicular access to a public or private street. It is undisputed that no conventional servitude of passage was created by written agreement.

Mr. Phipps claims that there was, at the time of this first sale, a paved driveway from Patton Street which extended over Lot F–2 (543), passed through a carport-like structure under the second story of the home on Lot F–2 (543), and continued unobstructed into the garage in the back of the home on Lot F–1 (541). It is this driveway, along with a key to the gate controlling access to that driveway, given to him by Mr. Botnick, which Mr. Phipps contends makes this servitude by informal destination sufficiently perceivable by exterior signs, works, or constructions? under Article 741.

Mr. Botnick sold Lot F–1 (541) to Mr. Phipps and his wife in 1982. At the time Mr. Katz continued to own Lot F–2 (543). It is undisputed that neither Mr. Botnick nor Mr. Phipps instituted any legal action to fix a gratuitous servitude under Article 694 while Mr. Katz still owned Lot F–2 (543). Mr. Katz sold Lot F–2 (543) in 1983. Lot F–2 (543) was re-sold several times thereafter, and, eventually, in 2001, Dr. Maria Gonzalez, who is not a party, acquired title.

In 2003, Dr. Gonzalez renovated her home, constructing a room in the space which Mr. Phipps identifies as the former carport-like area and which now obstructs what Mr. Phipps describes as a driveway. The building-permit application for the renovation states, however, that the area was used as a patio. Mrs. Phipps admits under oath to having verbally consented to Dr. Gonzalez's renovation conditioned upon, she claims, retaining pedestrian access to Lot F–1 (541) via an adjacent walkway. And it is undisputed that Mr. Phipps did not institute any legal action against Dr. Gonzalez so that he could use the driveway for vehicular access to his property.

In 2006, the Schupps acquired Lot F–2 (543) from Dr. Gonzalez. No reference to the servitude was contained in the title, and no other evidence was attached to any of the motions for summary judgment to indicate that notice was provided of the existence of the servitude. The Schupps thereafter built a fence on the property line and thus prevented Mr. Phipps from accessing Patton Street via Lot F–2 (543) even on foot.

B

Within one year of the Schupps' construction of the fence, Mr. Phipps filed a possessory action seeking restoration of possession of vehicular passage over Lot F–2 (543) that, he claimed, he enjoyed prior to Dr. Gonzalez's renovation. This action claimed that Mr. Phipps' possession ought to be maintained.

The Schupps initially filed an exception of no cause of action, which was denied by the district court. In December 2007, the Schupps filed both a motion for summary judgment seeking dismissal of Mr. Phipps' possessory action and an exception of prescription. Mr. Phipps claimed in his opposition to the Schupps' motion for summary judgment that he had acquired ownership of a servitude by informal destination under Article 741 and that the Schupps should be ordered to remove not only their newly-constructed fence but also the carport enclosure renovation. The trial court then granted the Schupps' exception of prescription as to the vehicular component of the servitude. The trial court also granted the motion for summary judgment in...