224 So. 3d 1019
La. Ct. App.2017Background
- Two houses (541 and 543 Exposition Blvd.) were originally on one lot; subdivided in 1978 without recorded servitude or notation of landlocked status.
- Roger Phipps bought 541 in 1982; historically accessed his garage via a concrete driveway crossing the rear of 543.
- Subsequent owners of 543 altered the driveway and most recently fenced the yard, prompting Phipps to sue claiming a servitude of passage.
- Earlier proceedings: trial court found an enclosed-estate servitude under La. C.C. art. 694; this Court reversed and remanded, identifying unresolved questions about an art. 741 servitude and other remedies (Phipps v. Schupp).
- Phipps sought to annul this Court’s March 18, 2015 opinion in the trial court; the trial court denied the motion to annul and a new trial; Phipps appealed that denial.
- The trial court’s denial of the nullity motion did not resolve the underlying petitory/action claims or dispose of the case; the appellate court dismissed the appeal for lack of a final, appealable judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s denial of Phipps’s motion to annul is a final, appealable judgment | Phipps treated the denial as appealable and appealed to this Court | Schupps argued the denial was interlocutory and not final, so appeal is improper | Denied appeal for lack of jurisdiction: the denial was not a final, appealable judgment |
| Whether the prior appellate opinion (March 18, 2015) could be annulled by trial court order | Phipps sought nullity of this Court’s prior opinion, reasserting issues from his writ | Schupps opposed collaterally attacking prior appellate ruling via nullity motion in trial court | Court notes that a grant of nullity setting aside a prior judgment would be final/appealable, but here denial left underlying issues unresolved |
| Whether appellant’s procedural posture permits awarding attorney’s fees for frivolous appeal under La. C.C.P. art. 2164 | Phipps’s appeal characterized as frivolous by Schupps in appellee brief seeking fees | Schupps sought fees but did not file an answer or cross-appeal as required to claim frivolous-appeal damages | Court declined to award fees because appellee failed to request frivolous-appeal damages via answer or cross-appeal; a brief alone is insufficient |
| Court’s duty to consider jurisdiction sua sponte | Phipps relied on appellate review without addressing finality | Schupps urged dismissal for lack of jurisdiction | Court affirmed its duty to examine subject-matter jurisdiction and dismissed appeal accordingly |
Key Cases Cited
- Phipps v. Schupp, 163 So.3d 212 (La. App. 4 Cir.) (prior appellate decision discussing applicability of La. C.C. arts. 689, 694, 741 and factual issues)
- Bennett v. Laperouse and Son, Ltd., 35 So.3d 364 (La. App. 1 Cir.) (defining when a judgment is final and appealable)
- Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Inc., 52 So.3d 909 (La. App. 5 Cir.) (appellate jurisdiction requires a valid final judgment)
- American Motorists Ins. Co. v. Miller, 383 So.2d 487 (La. App. 4 Cir.) (a grant of nullity setting aside a prior judgment is final and appealable)
- Frank v. City of Eunice, 134 So.3d 222 (La. App. 3 Cir.) (appellate courts must examine subject-matter jurisdiction sua sponte)
- Goal Props., Inc. v. Prestridge, 150 So.3d 610 (La. App. 3 Cir.) (an appeal may be dismissed at any time for lack of jurisdiction)
- Sears, Roebuck & Co. v. Appel, 598 So.2d 582 (La. App. 4 Cir.) (an appellee’s brief does not suffice as an answer for requesting frivolous-appeal damages)
- Galle v. Orleans Parish School Bd., 623 So.2d 692 (La. App. 4 Cir.) (procedure requiring answer/cross-appeal to claim frivolous-appeal damages)