ROGER D. PHIPPS
CYNTHIA NELSON SCHUPP AND ROLAND LAWRENCE CUTRER, JR.
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-05956,
DIVISION "B" Honorable Regina H. Woods, Judge
EVANTHEA P. PHIPPS PHIPPS & PHIPPS Counsel for
MARSHALL A. HEVRON LOUIS C. LACOUR ADAMS AND REESE LLP
Counsel for Defendant/Appellee
composed of Chief Judge James F. McKay III, Judge Edwin A.
Lombard, Judge Daniel L. Dysart
F. MCKAY III CHIEF JUDGE
case has been going back and forth between the trial court
and this Court and the Supreme Court for more than a decade.
At its core, the matter involves the rights of a landlocked
estate to a servitude of passage over a neighboring estate to
the nearest public road.
of background, the homes located at 541 and 543 Exposition
Boulevard in New Orleans were originally built on the same
lot by the same owner, Richard Katz. Mr. Katz subdivided the
properties in 1978 and the homes were later sold to separate
buyers. The act of subdivision of 1978 does not contain a
reference to a servitude burdening 543, nor does it state
that one of the properties lacks access to a public road.
None of the subsequent acts of sale for either property
contain a reference to a servitude.
Phipps purchased the home at 541 Exposition Blvd. in 1982. At
that time, there was a concrete driveway that ran across the
rear of 543 Exposition Blvd., allowing Mr. Phipps to access
his garage. Over the years, the property at 543 Exposition
Blvd. was sold several times. Various owners made changes to
the property that partially blocked the concrete driveway
until the present owners built a fence around their property.
This is when Mr. Phipps began his legal battle against them.
round of litigation immediately preceding the filing of the
motion for nullity which gave rise to the instant appeal the
trial court ruled in favor of Mr. Phipps, declaring him the
owner of an enclosed estate and entitled to a La. C.C. art.
694 servitude on the Schupps' property. This Court
reversed and remanded, finding: 1) La. C.C. art. 694 does not
apply to this case because because an art. 694 servitude will
not apply to third parties if it is not recorded; 2)
questions of fact remain over whether an art. 741 servitude
was established; 3) if an art. 741 servitude was established,
then the Schupps' predecessor in title, who obstructed
the driveway, is responsible for the cost of restoring the
driveway; and 4) if a servitude under 741 was not
established, then Mr. Phipps may not be entitled to an art.
689 servitude, but the passage need not necessarily be fixed
through the Schupps' property but could possibly be fixed
through Audubon Park. Phipps v. Schupp, 2014-0627
(La.App. 4 Cir. 3/18/15), 163 So.3d 212. Mr. Phipps then took
a writ to the Louisiana Supreme Court, which was denied.
brings us to what is presently before this Court. Mr. Phipps
filed a motion to annul this Court's March 18, 2015
opinion in the trial court. His motion was a rehashing of the
issues raised in his writ to the Supreme Court. The trial
court denied his motion and his following motion for new
trial. He then appealed this denial.
pending matter is a petitory action brought by Roger Phipps
in which he claims to own a servitude of passage through
Cynthia and Roland Schupps' backyard. The relief Mr.
Phipps seeks would require the partial demolition of the
Schupps' house so that he can use their backyard as a
driveway. The trial court has not decided these issues and
its denial of the motion for nullity did not resolve any of
the other underlying issues in this case. Instead, the trial
court determined that the case may proceed to trial.
trial court's denial of Mr. Phipps's motion for
nullity is not a final judgment under La. C.C.P. arts. 1915,
1841 or 2083. A judgment is final and appealable when it
"disposes of all remaining issues in th[e] case and
thereby concludes the litigation." Bennett v.
Laperouse and Son, Ltd., 2009-1009 (La.App. 1 Cir.
2/12/10), 35 So.3d 364. An appellate court's jurisdiction
is not properly invoked in the absence of a valid final
judgment. Input/Output Marine Systems, Inc. v. Wilson
Greatbatch, Inc., 2010-477 (La.App. 5 Cir. 10/29/10), 52
So.3d 909; See also La. C.C.P. art. 2083.
Accordingly, this Court lacks jurisdiction over this appeal
because the judgment of the trial court denying Mr.
Phipps's motion to annul is not a final appealable
judgment. We note however that the granting of a nullity
action setting aside a previous judgment is final and
appealable. See American Motorists Ins. Co. v.
Miller, 383 So.2d 487 (La.App. 4 Cir. 1980).
appeal can be dismissed at any time for lack of jurisdiction.
Goal Props., Inc. v. Prestridge, 2014-442 (La.App. 3
Cir. 11/5/14), 150 So.3d 610; La. C.C.P. art. 2162. Even when
the parties do not raise the issue, appellate courts have the
duty to examine sua sponte whether they have subject
matter jurisdiction. Frank v. City of Eunice,
2013-1118 (La.App. 3 Cir. 3/5/14), 134 So.3d 222.
their appellee brief, Mr. and Mrs. Schupp seek attorney's
fees pursuant to La. C.C.P. art. 2164 on the grounds that
this appeal is frivolous. While we are inclined to award
attorney's fees for a frivolous appeal, we are unable to
do so in this case. The proper procedure for an appellee to
request frivolous appeal damages is to file either an answer
to the appeal or a cross-appeal. Roger A. Stetter, LA. PRAC.
CIV. APP. § 11:18 (2016)
("Stetter")(citing La. C.C.P.
art. 2133 and Galle v. Orleans Parish School Bd.,
623 So.2d 692 (La.App. 4 Cir. 1993)). "Damages for
taking a frivolous appeal cannot be recovered if they are
claimed only in a motion to dismiss." Stetter,
§ 11:19. Similarly, "[a]n appellee cannot recover
damages for taking a frivolous appeal if the damages are
first requested in the appellee's brief."
Stetter § 11:19. "An appellee's brief