PHIPPS v. SCHUPP
| Decision Date | 03 September 2010 |
| Docket Number | No. 2009-C-2037.,2009-C-2037. |
| Citation | 45 So.3d 593 |
| Parties | Roger D. PHIPPS v. Cynthia Nelson SCHUPP and Roland Lawrence Cutrer, Jr. |
| Court | Louisiana Supreme Court |
45 So.3d 593
Roger D. PHIPPS
v.
Cynthia Nelson SCHUPP and Roland Lawrence Cutrer, Jr.
No. 2009-C-2037.
Supreme Court of Louisiana.
July 6, 2010.
Rehearing Denied Sept. 3, 2010.
COPYRIGHT MATERIAL OMITTED.
Phipps & Phipps, Roger Phipps, Evanthea Parker Phipps, for Applicant.
Adams & Reese, LLP, Malcolm Andrew Meyer, Conrad Meyer, IV, Lauren Joanna Delery, Maurice Carlos Ruffin, Lee Christopher Reid, New Orleans, for Respondent.
CIACCIO, J. *
We granted certiorari in this matter to determine whether the court of appeal erred in affirming the district court's grant of summary judgment in favor of the defendants, Cynthia Nelson Schupp and Roland Lawrence Cutrer, Jr. Specifically, we must consider whether the existence of a concrete driveway, which extends from an enclosed parcel of land through an adjacent property to the nearest public road and which existed when the common owner of the properties sold one of the parcels, is an exterior sign evidencing the common owner's intent to create a predial servitude. For the reasons discussed herein, we conclude the defendants failed to carry their burden of proof that there is no genuine issue of material fact as to whether the existence of the driveway evidences the common owner's intent to create a servitude by destination of the owner. Therefore, the summary judgment rendered in favor of the defendants is vacated and the case is remanded for further proceedings.
Located in Orleans Parish, “Lot F” is bounded by Exposition Boulevard and Audubon Park to the West, Patton Street to the North, and other residential properties to the South and East. In 1978, the common owner, Richard Katz, subdivided the land into two lots: 543 Exposition Boulevard, which is located in the northernmost section of the parcel directly adjacent to Patton Street, and 541 Exposition Street. When 541 Exposition Boulevard was sold separately, it had no direct access to a usable public street other than through 543 Exposition Boulevard to Patton Street, the nearest public road. Although 541 Exposition Boulevard has frontage on Exposition Boulevard, the boulevard is not a public road. Rather, it is a walkway adjacent to Audubon Park and is not designated for vehicular passage. Therefore, 541 Exposition Boulevard is an enclosed estate, as its only access to Patton Street is through 543 Exposition Boulevard. At the time the common owner sold 541 Exposition Boulevard, he left in place a paved driveway that extended from a garage located on 541 Exposition Boulevard through 543 Exposition Boulevard to Patton Street.
In 1978, the common owner appears to have sold 541 Exposition Boulevard to First Homestead and Savings Association, which subsequently sold the property to Michael Botnick. 1 The plaintiff in this matter, Roger Phipps, and his wife, Evanthia Phipps, purchased the property from Mr. Botnick in 1982, and the Phipps have resided at that address for over 24 years. Mr. Phipps alleges throughout that time
he has possessed, exercised, and used the driveway as a right of passage from his property through 543 Exposition Boulevard to Patton Street. Mr. Phipps concedes he has not used the driveway for vehicular passage since 2003, when the enclosure of a carport in the backyard of 543 Exposition Boulevard blocked the driveway and prevented vehicular access to his garage. However, Mr. Phipps has continued to use the unobstructed portion of the driveway for walking access to and from Patton Street.
On June 13, 2006, defendants Cynthia Schupp and Roland Lawrence Cutrer, Jr., who reside at 543 Exposition Boulevard, began erecting a fence across the alleged pedestrian right of passage, thereby completely preventing Mr. Phipps from accessing Patton Street. In response, Mr. Phipps filed a possessory action in which he sought to have his alleged right of passage recognized and to have the carport enclosure and fence that block the alleged right of passage removed.
The defendants filed an Exception of No Cause of Action, which was denied by the district court. Subsequently, the defendants filed a Motion for Summary Judgment. Mr. Phipps opposed the motion, contending the existence of the driveway at the time the common owner sold one of the parcels evidences the creation of a servitude by destination of the owner in accordance with La. C.C. art. 741. 2 The district court granted the defendants' Motion for Summary Judgment, finding Mr. Phipps was unable to demonstrate “intent evidenced by exterior signs,” as required by La. C.C. art. 707, 3 because the mere existence and use of the driveway does not constitute a predial servitude.
The court of appeal affirmed the district court's grant of the defendants' Motion for Summary Judgment, agreeing that under 730 Bienville Partners Ltd. v. First Nat. Bank of Commerce, 596 So.2d 836 (La.App. 4 Cir.1992), writ denied, 600 So.2d 642 (La.1992), proof of the common owner's intent to create a servitude goes beyond the existence of the contested pathway itself and must be proven by other exterior signs. Finding Mr. Phipps was unable to prove the existence of exterior signs evidencing a predial servitude, the court of appeal concluded he failed to carry the requisite burden of proof.
Mr. Phipps now appeals to this court, asserting the defendants would require a predial servitude be evidenced by title even though La. C.C. art. 741 provides a predial servitude may be created by destination of the original owner. He also contends the lower courts ignored the material facts evidencing the common owner's intent to create a servitude, including (1) the fact that the common owner left the visible concrete driveway in place when
the two estates ceased to belong to the same owner; (2) the fact that the common owner did not provide an express provision stating an apparent servitude was not created, as required by La. C.C. art. 741; and (3) the fact that a gate attached to 543 Exposition Boulevard, which could block the right of passage on the driveway, was locked and unlocked by a key delivered to Mr. Phipps when he purchased 541 Exposition Boulevard. Additionally, Mr. Phipps avers intent is a subjective fact, that exterior signs may serve as circumstantial evidence of the common owner's intent to create a servitude, and that facts regarding intent should be construed in the light most favorable to the non-movant on summary judgment. Thus, Mr. Phipps maintains the lower courts erred in granting the defendants' Motion for Summary Judgment.
A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Jones v. Estate of Santiago, 03-1424, p. 4 (La.4/14/04), 870 So.2d 1002, 1005. The summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jones, 870 So.2d at 1005. Appellate courts review summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant. Yokum v. 615 Bourbon Street, L.L. C., 07-1785, p. 25 (La.2/26/08), 977 So.2d 859, 876. Thus, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 08-0215, p. 9 (La.12/2/08), 5 So.3d 819, 824.
The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2); Jones, 870 So.2d at 1006. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966(C)(2); Jones, 870 So.2d at 1006. Summary judgment usually is not appropriate for claims based on subjective facts such as motive, intent, good faith, knowledge, and malice. Id. However, this court has acknowledged “summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent.” Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 28 (La.7/5/94), 639 So.2d 730, 751.
The defendants note that, under La. C.C. art. 730, “doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.” Palomeque v. Prudhomme, 1995-0725, p. 7 (La.11/27/95), 664 So.2d 88, 93. They contend since it is questionable whether the common owner intended to establish a predial servitude by leaving the driveway in place, this issue should be resolved in their favor. However, the defendants in this instance utilize the summary judgment procedure to seek relief. Therefore, in order to determine if there is doubt as to whether the driveway was intended to serve the enclosed estate,
we must view the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant, Mr. Phipps. See, Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. For the reasons discussed below, considering this matter in the light most favorable to the non-movant, we find issues of material fact exist concerning the intent of the common owner to create a predial servitude. Therefore, the district court's awarding of summary judgment was not appropriate.
Although the lower courts and the parties failed to refer to La. C.C. art. 689, we must address this...
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