ROGER D. PHIPPS
CYNTHIA NELSON SCHUPP, ET AL
[Copyrighted Material Omitted]
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2006-05956, DIVISION " H-12" . HONORABLE MICHAEL G. BAGNERIS, JUDGE.
Evanthea P. Phipps, PHIPPS & PHIPPS, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLEE.
Michael L. DeShazo, Henry W. Kinney, III, Christine W. Adams, KINNEY, ELLINGHAUSEN, RICHARD & DESHAZO, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLEE.
Louis C. LaCour, Jr., Marshall A. Hevron, ADAMS AND REESE LLP, New Orleans, LA, COUNSEL FOR DEFENDANT/APPELLANT.
(Court composed of Judge Terri F. Love, Judge Paul A. Bonin, Judge Daniel L. Dysart). LOVE, J., CONCURS IN THE RESULTS.
Paul A. Bonin, Judge.
[2014-0672 La.App. 4 Cir. 1] 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., 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.
[2014-0672 La.App. 4 Cir. 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.
[2014-0672 La.App. 4 Cir. 3] 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 [2014-0672 La.App. 4 Cir. 4] 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 con
sequences of our holding with regard to its effects on the parties.
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.
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 [2014-0672 La.App. 4 Cir. 5] (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 [2014-0672 La.App. 4 Cir. 6] 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.
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' [2014-0672 La.App. 4 Cir. 7] 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 favor of the Schupps, finding that the mere existence and use of the concrete driveway was insufficient to evidence Mr. Katz's intent to form a servitude by informal destination under the standards set forth in La. Civil Code arts. 707, 741.
After a de novo review, we affirmed that trial court's judgment; finding no error in granting the Schupps' motion for summary judgment, we agreed with the trial court's reasoning that, under 730 Bienville Partners Ltd. v. First Nat. Bank of Commerce, the " historical use of a particular pathway cannot serve as proof of intent" of the common owner to create an apparent servitude by destination and that there must be " exterior signs" demonstrating the nature and extent of the servitude claimed. See Phipps v. Schupp, 08-1487, pp. 7-8 (La.App. 4 Cir. 8/19/09), 19 So.3d 38, 43 (citing 596 So.2d 836, 840 (La.App. 4th Cir. 1992)). We found that Mr. Phipps failed to carry his burden of proof due to his inability to show that exterior signs existed evidencing Mr. Katz's intent to create a servitude by destination. See id., 08-1487, p. 8, 19 So.3d at 43.
The Louisiana Supreme Court resuscitated Mr. Phipps' claim by vacating the summary judgment rendered in favor of the Schupps and remanding the matter [2014-0672 La.App. 4 Cir. 8] to the district court. See Phipps v. Schupp, 09-2037, p. 16 (La. 7/6/10), 45 So.3d 593, 603. First and very importantly, the Supreme Court found that genuine issues of material fact existed as to whether the " driveway," which Mr. Katz left in place when the property was subdivided, evidenced an intent to create a predial servitude for the benefit of Lot F-1 (541) under Article 741. See id., 09-2037, p. 11, 45 So.3d at 600. The Supreme Court distinguished 730 Bienville Partners because the paved driveway from Mr. Phipps' garage through the Schupps' property to Patton Street could conceivably evidence an intent to create an apparent servitude by destination. See id., 09-2037, pp. 10-11, 45 So.3d at 600. The Supreme Court also mentioned other evidence that could serve to clarify Mr. Katz's intent to create a servitude under Article 741: a key given
to Mr. Phipps by Mr. Botnick that unlocks the gate which provides access to the driveway and Mr. Katz' presumed compliance with a 1950 subdivision regulation that required that all parcels of land in a subdivision to have frontage on a public street. See id., 09-2037, pp. 13-14, 45 So.3d at 601-02. Second and alternatively, if a servitude by informal destination was not created, the Supreme Court also pointed out that Mr. Phipps, as the owner of an enclosed estate, may be entitled to a legal servitude of passage over the Schupps' property to Patton Street under Article 689. See id., 09-2037, pp. 6-7, 45 So.3d at 598.
The Supreme Court also reversed the trial court's decision to grant the Schupps' exception of prescription, finding that the one-year prescriptive period was not triggered until Mr. Phipps' possession of the servitude was completely [2014-0672 La.App. 4 Cir. 9] obstructed by the Schupps' construction of the fence. See id., 09-2037, p. 15, 45 So.3d at 602-03. The Supreme Court noted that, under La. Civil Code art. 759, Mr. Phipps' partial use of the servitude as a walkway constituted use of the entire indivisible, claimed predial servitude. See id., 09-2037, pp. 15-16, 45 So.3d at 603.
On remand, Mr. Phipps filed a supplemental and amending petition. The petition added the Audubon Park Commission and the City of New Orleans as defendants in the suit. Mr. Phipps also amended his claim to request that, in the event of a denial of his claim for a servitude by destination of the owner under Article 741, his gratuitous servitude under Article 694 be restored and recognized. Finally, Mr. Phipps alternatively requested that the district court recognize his right of passage under Article 689 with indemnity to the Schupps.
The parties conducted additional discovery, including deposing both Mr. Katz and Mr. Botnick. The Schupps answered Mr. Phipps' supplemental and amending petition. The Audubon Commission filed an exception of prescription. Motions for summary judgment were thereafter filed by the Schupps, Mr. Phipps, the Audubon Commission, and the City of New Orleans.
On May 13, 2013, the district judge held a hearing on these motions for summary judgment. On October 15, 2013, the district judge granted summary judgment in favor of Mr. Phipps and against the Schupps, recognizing and restoring an Article 694 gratuitous servitude of vehicular passage over the entire width and length of the concrete driveway extending from Patton Street through [2014-0672 La.App. 4 Cir. 10] the immovable property located at Lot F-2 (543) and into the garage on Lot F-1 (541). As a result, the Schupps were ordered to remediate their fence and modify or remove their enclosed carport so that both would cease to obstruct Mr. Phipps' exercise of his right of passage over a restored concrete driveway. While the judgment did not explicitly impose costs upon the Schupps, the language of Article 694 implies, however, that the Schupps would bear the costs of the removal and modification of the fence and carport.
The district judge then decreed Mr. Phipps' motion for summary judgment seeking the recognition of an Article 741 servitude to be moot, denied the Schupps' cross-motion for summary judgment, overruled the Audubon Park Commission's exception of prescription, and granted motions for summary judgment in favor of
the Audubon Commission and the City of New Orleans.
The district judge attached written reasons in support of his decision to the judgment. The district judge began by considering three types of servitudes of passage: an Article 694 gratuitous right of passage, an Article 741 servitude by informal destination, and an Article 689 indemnified right of passage. The trial judge then found that the Supreme Court incorrectly directed the district court to consider an Article 689 right of passage on remand and, citing Patin v. Richard, 291 So.2d 879 (La.App. 3rd Cir. 1974), instead applied, what it termed, a self-executing Article 694 gratuitous right of passage. The trial judge found that Mr. Katz voluntarily alienated a part of his estate and rendered Lot F-1 (541) an [2014-0672 La.App. 4 Cir. 11] enclosed estate and that Mr. Phipps, as the vendee of Mr. Botnick with regards to this property, is entitled to a gratuitous right of passage. The trial judge found that the restoration of Mr. Phipps' right of passage along the driveway was not impossible despite the great inconvenience experienced by the Schupps; that Mr. Phipps did not voluntarily enclave himself under La. Civil Code art. 693; and that Mrs. Phipps' consent to the enclosure of the carport was conditional on the continued use of the walkway adjacent to the carport. The trial judge lamented that " the least equitable aspect of this case is the need for the enclosed carport to be altered or torn down." The reasons for judgment did note that this servitude was not included on the title and that the renovation of the old driveway would have made it nearly impossible for the Schupps to realize that the servitude existed. The trial judge nonetheless found that the gratuitous servitude under Article 694 existed and that Mr. Phipps' possession of that servitude must be restored.
The trial judge also found that the driveway predated the subdivision of the property and that it represented the shortest path to the nearest public street (Patton Street) for Lot F-1 (541). The trial judge finally noted that Municipal Ordinance 10,353 " addresses only those properties along Exposition Boulevard that had no outlet to a public road at the time the ordinance was passed" in 1928, which greatly predates the subdivision of this property.
Following the judgment of the trial court, the Schupps filed a motion for new trial seeking review of whether Mr. Phipps voluntarily enclaved himself under [2014-0672 La.App. 4 Cir. 12] Article 693, thus rendering Lot F-1 (541) unable to demand a right of passage from neighboring properties. The trial court thereafter denied this motion for new trial.
The Schupps suspensively appealed and seek the reversal of the trial court's grant of summary judgment in favor of Mr. Phipps. In their initial briefing, the Schupps argue that the trial judge committed four errors and seek relief under La. Civil Code art. 695, demanding that the servitude fixed by the trial court be relocated.
First, the Schupps claim that the trial court erred in finding that Municipal Ordinance 10,353 does not apply to Lot F-1 (541). The trial court held that the municipal ordinance only applied to those properties that did not have access to a public road at the time of its passing in 1928. The Schupps claim that the language of the municipal ordinance clearly applies to Lot F-1 (541) and provides Mr. Phipps with pedestrian and vehicular access to his property through a gravel road in Audubon Park that currently stops just before
Mr. Phipps' riverside property line. The Schupps claim that the municipal ordinance renders Mr. Phipps' property not enclosed.
Second, the Schupps claim that the trial court erred in finding that Mrs. Phipps' oral consent to Dr. Gonzalez's enclosure of the carport did not amount to self-enclosure of Lot F-1 (541) under Article 693, thus blocking Mr. Phipps from [2014-0672 La.App. 4 Cir. 13] enforcing a right of passage against his neighbors. The Schupps filed a motion for new trial requesting that the trial court consider Mrs. Phipps' judicial confession that she consented to the enclosure of the driveway and that the court find the nature of the servitude was altered from vehicular to pedestrian under La. Civil Code art. 729. The Schupps claim that the trial court improperly found Mrs. Phipps' consent to be conditional based on continued pedestrian access to Lot F-1 (541) through an adjacent walkway. The Schupps argue that a determination as to Mrs. Phipps' subjective intent was not appropriate during summary judgment proceedings and furthermore that her consent should not be viewed as conditional, due to the permanency of the obstructing structure that she consented to be built.
Third, the Schupps claim that the trial court erred in striking as hearsay certain paragraphs from Mrs. Phipps' July 14, 2008 affidavit, which stated that she consented to the enclosure of the driveway but retained pedestrian access.
Fourth, the Schupps claim that the trial court failed to apply La. Civil Code art. 730 and construe all doubt as to the use and existence of the servitude in favor of the servient estate. This interpretive method, the Schupps contend, should have resulted in the trial court finding that Mr. Phipps is only entitled to a pedestrian servitude, as there is considerable doubt as to whether Mrs. Phipps permanently altered the servitude when she consented to the enclosure.
Lastly, the Schupps seek relief under Article 695 and demand relocation of [2014-0672 La.App. 4 Cir. 14] the servitude fixed by the trial court. The Schupps claim that this action is not untimely as this relief is only available after a servitude has been fixed by judicial decision. The Schupps argue that the servitude set by the trial court is overly burdensome on their estate and that this servitude should be relocated to the front of Mr. Phipps' home to follow the gravel path that runs adjacent to Exposition Boulevard in Audubon Park. The Schupps claim that it will cost $163,500 to comply with the trial court's judgment requiring them to demolish part of their home. The Schupps contend that the passage through Audubon Park provides Mr. Phipps with the same right of ingress and egress currently enjoyed by his neighbors and that the new passage would require that the gravel road authorized by Municipal Ordinance 10,353 be extended about twenty feet.
Mr. Phipps filed a brief responding to the ...