Louis v. Hose and Julie H. Hose v. James Scott O'Connell and Whitney Elizabeth O'Connell

LOUIS V. HOSE AND JULIE H. * NO. 2024-CA-0493
HOSE
*
VERSUS COURT OF APPEAL
*
JAMES SCOTT O'CONNELL FOURTH CIRCUIT
AND WHITNEY ELIZABETH *
O'CONNELL STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-02408, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Judge Paula A. Brown, Judge Tiffany Gautier Chase, Judge
Dale N. Atkins)

Katy K. Sinor
501 Jewel Street
New Orleans, LA 70124

Howard E. Sinor, Jr.
GORDON, ARATA, MONTGOMERY, BARNETT, MCCOLLAM,
DUPLANTIS & EAGAN, LLC
201 St. Charles Avenue, 40th Floor
New Orleans, LA 70170-4000

COUNSEL FOR PLAINTIFFS/APPELLANTS, Louis V. Hose and Julie H.
Hose

David M. Fink
ONEBANE LAW FIRM, APC
400 East Kaliste Saloom Road, Suite 300
Lafayette, LA 70502-3507

COUNSEL FOR DEFENDANT/APPELLEE, James Scott O’Connell and
Whitney Elizabeth O’Connell

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART AND
AFFIRMED AS AMENDED
MAY 8, 2025

DNA

PAB

TGC

This civil appeal involves a dispute between neighbors regarding a common

driveway established by a “Dedication of Community Driveway” (“Dedication”).

Appellants, Louis Hose (“Mr. Hose”) and Julie Hose (“Mrs. Hose”) (collectively

the “Hoses”), are the current owners of 6331 Annunciation Street in New Orleans,

Louisiana (“6331 Annunciation”). Appellees are James O’Connell (“Mr.

O’Connell”) and Whitney O’Connell (“Mrs. O’Connell”) (collectively the

“O’Connells”), and they are the current owners of 6333 Annunciation Street in

New Orleans, Louisiana (“6333 Annunciation”). The Hoses filed a “Petition for

Declaratory Judgment and Injunctive Relief” (“Petition”), wherein they requested

that the trial court (1) recognize them as owners via acquisitive prescription of a

certain part of the Driveway (the “Parking Space”); (2) issue an injunction to

prevent the O’Connells from interfering with their use of the Parking Space and the

Driveway; (3) issue an order directing the O’Connells to remove any and all

obstructions in the Driveway, namely certain trees and a fence located in the

Driveway; (4) award damages to them; and (5) declare the common driveway

servitude in favor of the O’Connells’ property (6333 Annunciation) and burdening

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the Hoses’ property (6331 Annunciation) was extinguished by prescription of non-

use.

The Hoses now seek review of the trial court’s April 26, 2024 “Amended

and Restated Judgment” (“Amended Judgment”), wherein the trial court (1) denied

the Hoses’ request for a declaratory judgment recognizing them as owners via

acquisitive prescription of the Parking Space and a corresponding servitude of

passage for access to any vehicle located in the Parking Space; (2) denied the

Hoses’ request to issue an injunction to prevent the O’Connells from interfering

with their use of the Parking Space and a servitude of passage to access the Parking

Space; (3) granted the Hoses’ request for an injunction ordering the O’Connells not

to interfere with their use and enjoyment of the Driveway, noting that “[s]aid

injunction includes interfering with or obstructing access to a vehicle temporarily

stopped in the . . . [D]riveway”; (4) granted the Hoses’ claim for prescription of

nonuse, thereby extinguishing the servitude as a burden on 6331 Annunciation but

retaining it in favor of 6331 Annunciation; (5) denied the Hoses’ and the

O’Connells’ respective claims for removal of certain obstructions in the Driveway;

and (6) denied the Hoses’ claim for monetary compensation. The O’Connells filed

an Answer to the Hoses’ appeal, wherein they seek to modify the April 26, 2024

Amended Judgment in certain respects and request reasonable attorney’s fees and

costs associated with the appeal in accordance with La. C.C.P. art. 2164, i.e.,

frivolous appeal damages.1

1 As discussed more fully later in this Opinion, La. C.C.P. art. 2164 states:

The appellate court shall render any judgment which is just, legal, and
proper upon the record on appeal. The court may award damages, including
attorney fees, for frivolous appeal or application for writs, and may tax the costs
of the lower or appellate court, or any part thereof, against any party to the suit, as
in its judgment may be considered equitable.

2

For the following reasons, we affirm the April 26, 2024 Amended Judgment

in part; we reverse the judgment in part; and we amend the judgment in part and

affirm it as amended. We grant the O’Connells’ Answer in part and deny it in part.

We also deny their request for frivolous appeal damages.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Dedication of Community Driveway Servitude

Decades before the current litigation, on February 23, 1939, the then-owner

of the subject properties—which now have the municipal addresses 6331

Annunciation and 6333 Annunciation—was the Sixth District Building and Loan

Association. On that date, Edward F. Scanlan, President of the Sixth District

Building and Loan Association, executed the Dedication “with the view of creating

a community or common driveway in favor of” the two properties (“Driveway”).

After describing the lots, the Dedication stated, in pertinent part:

[T]he Sixth District Building and Loan Association does hereby
dedicate, for the purpose of creating said driveway in favor of said . . .
described lots of ground, the same to form part of the respесtive titles
to said lots of ground and to be binding on all future owners,
possessors and purchasers forever, the following community or
common driveway to-wit:

The right of a community passage and driveway for the
use of automobiles and vehicles of every nature and
character whatsoever between the . . . lots described
hereinabove, owned by the said appearer, which
community passage and driveway herein established and
dedicated measures seven feet, two inches front on
Annunciation Street, by a depth between equal and
parallel lines of One hundred and thirty feet, and is
composed of three feet, seven inches taken from lot No.
13 [what ultimately became 6331 Annunciation] and
three feet, seven inches taken from the adjoining side of
lot No. 14 [6333 Annunciation] . . . .

The right of the aforesaid community passage and driveway
created and dedicated herewith, includes the right of egress and
ingress to all persons owning or inhabiting the aforesaid property and

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to all persons having any business or social relations with the owners,
present or future, and inhabitants.

The said passageway or common driveway is to remain
unobstructed at all times; that no automobiles or other vehicles are to
remain parked in said driveway, nor any garbage cans or other
obstructions to be placed in the Street or sidewalk in front of said
driveway, and the Sixth District Building and Loan Association does
by these presents dedicate and create in favor of said two lots said
community or common driveway for the purpose as hereinabove set
forth.

Ultimately, in 1947 Eugene and Audrey Fischer (“Mrs. Fischer”) (collectively the

“Fischers”) purchased 6331 Annunciation. Their daughter, Sue Pagett (“Mrs.

Pagett”), was born in 1959, and she lived at 6331 Annunciation from the year of

her birth until August 2018 when she sold the property to the Hoses. The

O’Connells purchased the neighboring property, 6333 Annunciation, from Megan

Ciota in December 2021.

The Hoses’ March 21, 2022 Petition for Declaratory Judgment and Injunctive
Relief

On March 21, 2022, the Hoses filed their Petition, therein contending that

they and their predecessors in title had used the Parking Space “for no less than

thirty years,” specifically an area “measuring in width seven feet, two inches front

on Annunciation Street, by a depth of nineteen feet between equal and parallel

lines, commencing ten feet from Annunciation Street.” To this end, the Hoses

asserted that because they and their predecessors in title had “exercised as owner

physical acts of use, detention or enjoyment of the Parking Space continuously,

uninterrupted, peaceably, publicly and unequivocally for thirty years or more,”

they had “acquired ownership of the Parking Space” via thirty-year acquisitive

prescription.

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The Hoses further contended that “[n]either the owners of 6333

Annunciation nor anyone on their behalf ha[d] used the Driveway for passage or . .

. with automobiles and other vehicles for over ten years.” The Hoses asserted

“[t]he passage and driveway rights contained in the Dedication . . . in favor of 6333

Annunciation ha[d] been extinguished by the prescription of nonuse.” Accordingly,

the Hoses requested a declaration that the common driveway servitude in favor of

6333 Annunciation had been extinguished, such that 6333 Annunciation no longer

enjoyed any benefits outlined in the Dedication.

Additionally, the Hoses explained that after the O’Connells purchased 6333

Annunciation in December 2021, the O’Connells instructed the Hoses to cease

parking in the Parking Space. According to the Hoses, they responded with a letter,

which detailed their alleged “history of use of the Driveway and Parking Space” so

as to explain their rights to same. The Hoses alleged that after the O’Connells

received that letter, in late February 2022, the O’Connells began to park a truck at

the edge of the Driveway, thereby rendering the Hoses’ use of the Driveway

“inconvenient.” The Hoses further alleged in early March 2022 the O’Connells

moved the truck such that it was parked approximately two feet inside the

Driveway and Parking Space, thereby rendering the Hoses unable to use the

Driveway and Parking Space. Considering these allegations, the Hoses requested

an order directing the O’Connells to move the truck, as well as an injunction

ordering the O’Connells not to interfere with, disturb, or make more inconvenient

the Hoses’ possession and enjoyment of the Driveway and Parking Space by

encroaching on same. The Hoses also requested “damages for the disturbance and

inconvenience experienced as a result of [the O’Connells’] actions.”

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Further, the Hoses alleged that prior owners of 6333 Annunciation had

erected a fence across part of the Driveway and planted two trees within the

Driveway. Per the Hoses’ Petition, these items prevented the Hoses from being

able to use that part of the Driveway for passage. Accordingly, the Hoses also

sought an injunction ordering the O’Connells to remove the fence and the trees.

The O’Connells’ May 17, 2022 Answer, Affirmative Defenses, and
Reconventional Demand

On May 17, 2022, in response to the Hoses’ Petition, the O’Connells filed an

“Answer, Affirmative Defenses, and Reconventional Demand.” In pertinent part,

as an affirmative defense, the O’Connells countered that the Hoses (and/or their

ancestors in title) did not have unequivocal, continuous, uninterrupted, public, and

adverse possession of the Parking Space for a period of thirty years, such that they

failed to satisfy the requirements of thirty-year acquisitive prescription.

Additionally, the O’Connells argued the Hoses failed to satisfy the requirements to

plead ten-year prescription of non-use.

In their reconventional demand, the O’Connells explained that in January

2020 the Hoses installed a chimney located on the immovable property governed

by the Dedication and in April 2020 subsequently installed an air conditioner

compressor on the immovable property governed by the Dedication. The

O’Connells asserted these installations constituted violations of the Dedication,

“which . . . inhibited and prevented” their rights to possess, use, and enjoy the

driveway. Thereafter, the O’Connells “request[ed] injunctive relief to protect and

restore their rights to the possession, use, and enjoyment of the” Driveway; an

order directing the Hoses to remove the air conditioner compressor and chimney;

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damages for their loss of use and the inconvenience caused by the Hoses’

obstructions in the Driveway; and attorney’s fees, and costs.

Trial

The trial in this matter occurred on November 14 and 15, 2023. In relevant

part, the trial court heard the testimony of Mrs. Pagett, Mr. Hose, Mrs. Hose, Mrs.

O’Connell, and Clint Simoneaux (“Mr. Simoneaux”).

Sue Pagett’s Testimony

Mrs. Pagett testified that she was born in June 1959 and her parents lived at

6331 Annunciation at that time. Mrs. Pagett explained she lived at 6331

Annunciation from the time of her birth until the time she sold the house in 2018 to

the Hoses. During Mrs. Pagett’s testimony, counsel for the Hoses showed Mrs.

Pagett various photographs of cars parked in the Parking Space, and she testified

that she and her family members parked in the Parking Space during the entire

time she lived at 6331 Annunciation. When asked whether anyone living at 6333

Annunciation ever objected to her or her family parking in the Parking Space or if

she ever overheard anything to that effect, Mrs. Pagett replied, “No.” Mrs. Pagett

further explained that if she parked in the Parking Space, when she opened her car

door, it would swing “[a] little bit” beyond the Parking Space and that she would

thereafter briefly walk on the 6333 Annunciation lot; but Mrs. Pagett testified that

no one from 6333 Annunciation complained about or objected to this. She stated

this occurred the entire time that she lived at 6331 Annunciation. Additionally,

Mrs. Pagett testified her family used the Parking Space for “[w]ashing cars, the

kids playing, [and] parties.” Mrs. Pagett also explained that some time prior to the

spring of 1988, her mother paved the Parking Space with aggregate concrete as she

“wanted it to be all one level because the grass area would get ruts in it and be

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muddy.” When asked whether her family used the Parking Space as their own

space, Mrs. Pagett answered affirmatively.

When asked about the use of the Driveway and Parking Space by the owners

of 6333 Annunciation, Mrs. Pagett explained the owners of 6333 Annunciation

parked their car in a space in front of their house instead of parking in the Parking

Space. However, the following colloquy occurred when counsel for the Hoses

asked about whether anyone other than the Fischers or Mrs. Pagett ever parked in

the Parking Space:

Q. Were there times when someone other than family members
would park in the parking space?

A. Yes.

Q. When that happened who were the folks who would do that?

A. Guest[s] of . . . ours or somebody asking if they could park. It
was always with permission.

Q. Did the folks at 6333 ever ask your permission to park in the
parking space?

A. Occasionally.

Q. Can you tell the Court about when that would be?

A. Usually the few times it happened around Mardi Gras. We had
parades around the house. I [was not] having guests. They were. They
asked if somebody could park there that was visiting.

Q. Did you say yes?

A. Yes.

When counsel for the Hoses asked Mrs. Pagett about renovations undertaken

by one of the prior owners of 6333 Annunciation, Mrs. Pagett explained that in

approximately 1999 a couple named the Hainkels lived at 6333 Annunciation and

added a pool in their backyard, whereupon they also extended their fence and

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added a gate. According to Mrs. Pagett, one “could no longer drive all the way to

the back” of the Driveway to reach the garage at 6331 Annunciation after the

Hainkels modified the fence. Counsel for the Hoses continued to ask Mrs. Pagett

about the use of the driveway by residents of 6333 Annunciation, whereupon the

following colloquy occurred:

Q. From the time of those renovations in 1999 until you sold [6331
Annunciation] to the Hoses, did the residents of 6333 ever drive a
vehicle down the driveway?

A. No.

....

Q. What if anything did the owners of 6333 do in that common
driveway to your observation?

A. To my observation people walked back to go through their gate.
We walked back to go through our gate; b[r]ought stuff back up. It
was a common area. We used it. They used it; the owners of 6333
used it; the owners of 6331 used it.

....

Q. Other than the walking that you described, was there any other
use that you can recall today?

A. No.

During her testimony, Mrs. Pagett did not specify a time period during which she

witnessed the owners of 6333 Annunciation using the driveway and walking on it

other than explaining that this occurred at some point in time after the Hainkels’

renovations in 1999.

Louis Hose’s Testimony

Mr. Hose testified that he and Mrs. Hose purchased 6331 Annunciation in

August 2018. He described the Parking Space as being “covered with raised

aggregate[] concrete” and distinguishable from a parking spot in front of 6333

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Annunciation because that “paving is kind of scored concrete. It is significantly

different than the aggregate concrete.” Mr. Hose explained the boundary he and

Mrs. Hose were claiming in terms of the Parking Space was “the raised aggregate .

. . reflected in [a] surveyor’s report that [they] obtained.” Mr. Hose stated he

believed possession began for acquisitive prescription purposes in 1988 after Mrs.

Fischer poured the aggregate concrete.

Regarding the beginning of the dispute with the O’Connells, Mr. Hose

testified that in January 2022 he received a text message from Mr. O’Connell to the

effect Mr. O’Connell “wanted to open a discussion” about the Driveway,

whereupon Mr. Hose first learned about the Dedication from Mr. O’Connell’s

message. Mr. Hose explained that, prior to that time, he “was aware it was a

common driveway” but “was unaware there were restrictions.” Thereafter,

according to Mr. Hose, he did his own research about the situation and, regarding

the Parking Space, arrived at the belief “that there was a strong potential that a

person who possesses a piece of property for well over 30 years can acquire

ownership of the piece of property.” Mr. Hose testified that he subsequently

conveyed his research to Mr. O’Connell in a February 23, 2022 letter.

When asked how the O’Connells responded to his letter, Mr. Hose stated,

“We did not receive any formal response. However, the next day [Mrs.]

O’Connell’s dad moved [a] pickup truck . . . right next to the community driveway

which made it impossible for us to open the doors on our vehicles when we parked

in the [P]arking [S]pace.” When asked whether Mrs. O’Connell’s father’s truck

“was placed in the servitude two days after [he] sent the letter,” Mr. Hose

responded, “That is correct. It is my understanding it was [Mrs. O’Connell’s]

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father’s truck.” Subsequently, the following colloquy occurred regarding the truck

and its impact as alleged by Mr. Hose:

Q. How long did the O’Connells leave the truck parked in such a
way to prevent you and your wife from parking in the parking space?

A. It was approximately 12 weeks. It started here 2/26/22. They
finally moved it. It was the middle of May right before we had a court
hearing on the matter.

....

Q. Where did you park when the truck was put in the location
shown in Plaintiff[s’] Exhibit 34?[2]

A. We [could not] get a car in there because the truck was actually
in the parking space. So we could not park there at all. We had to park
out on the street; wherever was available on the street is where you
ended up parking. It could be close or fairly far away.

When counsel for the O’Connells asked Mr. Hose if any actions by the

O’Connells caused him to experience mental anguish or if “just the involvement in

the lawsuit [was] the source of” his alleged mental anguish, the following colloquy

occurred:

A. Just the whole situation of not getting along with the neighbors;
not having access to my property without having to move my vehicle.
All of these things caused anxiety and concern.

Q. Not having access to your property without moving your
vehicle, what do you mean by that?

A. So the consent agreement that was agreed to basically seven
feet two inches where I could park my car.[3] We then agreed to 20

2 Throughout the Opinion, the phrasing “Plaintiffs’ Exhibit #” will refer to exhibits
introduced into evidence by the Hoses.
3 After conducting a hearing on a Motion for Preliminary Injunction filed by the Hoses,

on June 15, 2022, the trial court signed a Consent Judgment. As stated therein, the Hoses and the
O’Connells agreed that from May 31, 2022, to July 11, 2022, the Hoses were:

permitted to continue to park their vehicle on the tract of land defined as: an area
measuring in width seven feet, two inches front on Annunciation Street, by a
depth of nineteen feet between equal and parallel lines, commencing ten feet from
Annunciation Street. Said nineteen foot long space from front to rear is composed

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inches where I could open my door and I could go in and go out of my
door.[4] That I could have use that for no other point in time to cross
on to the O’Connell’s property.

If I wanted to go into the backyard I would have to either move my
car that was parked in the parking space or I would have to go through
my home and going through my home makes it problematic when I
am trying [to] bring a bike to the front of the house; trying to do work;
mov[ing] my grandson in his wagon.

It is not a normal situation that we had experienced where every time
we want to go from the front to the back, we have to move a vehicle
or go through the house.

Mr. Hose also testified about the 6333 Annunciation fence, stating: “The

fence . . . does prevent us [from reaching the 6331 Annunciation backyard with a

vehicle]. This is part of our claim against the O’Connells that says this fence is in

the common driveway, and the palm trees we need to have them removed so we

can access our backyard. It goes all the way back to the property line

approximately another 40 feet beyond this access fence.” However, Mr. Hose

further testified that he also cannot reach his backyard due to obstructions

associated with his own property, 6331 Annunciation, including the fence, a

chimney, and part of the air conditioning system:

Q. Can you get into your backyard with your fence as you sit here
today?

A. With my vehicles I cannot. With a small vehicle I can.
Meaning like a golf cart or something like that today, I can drive it
back there.

....

of three feet, seven inches of lot No. 13 and of three feet, seven inches from the
adjoining side of lot No. 14.
4 Then, on August 18, 2022, the trial court signed another Consent Judgment, whereby

the Hoses and the O’Connells agreed that from July 11, 2022, until the trial court ruled on the
merits of their case, the Hoses were permitted “twenty-two (22) inches of open space on the side
of [the O’Connells’ property]” to use “solely for egress and ingress, into their vehicle.”

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Q. Turn to document 0025. On the left side, the very left side you
see some bricks?

A. Yes.

Q. Is that part of your chimney?

A. Yes.

Q. What was that -- do you know when that was put in that
location?

A. It was put in during the 2019/2020 renovation of the house.

Q. And the drainage and electrical box would that also be the
same timeline?

A. The drainage definitely. It [was not] an electrical box there.
There was an electrical service breaker.

....

Q. Please turn to 0062 which I believe we discussed earlier. Do
you see a black platform with some type of equipment that is on top
of it?

A. Yes.

Q. What is that?

A. Part of the air-conditioning system.

....

Q. With a Ford F-150 or a Lexus [the vehicles Mr. Hose said that
he and Mrs. Hose own] can you fit either one of those vehicles
through the common driveway with the chimney . . . and your AC
equipment in that location?

A. I have never done it. I [do not] know, but I believe I cannot
with the AC unit where it is.

Thus, Mr. Hose testified that these obstructions associated with his own house—

6331 Annunciation—also prevent vehicular use of the driveway.

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Julie Hose’s Testimony

Mrs. Hose testified and explained that after Mr. O’Connell told the Hoses

not to park in the Parking Space in January 2022, she spoke with Mrs. O’Connell.

As Mrs. Hose explained, “[Mrs. O’Connell] told me something about her uncle at

the closing who was their closing attorney told her if they did not disapprove of us

parking there, then they were kind of agreeing to something about -- something

legal. He[r uncle] told them they needed to object to us parking there.” Mrs. Hose

explained she subsequently talked to Mr. O’Connell too, who said “he wanted to

adamantly stick to this Dedication of Community Driveway which claims that

there is not supposed to be anything blocking this . . . [D]riveway.” According to

Mrs. Hose, she “told him” in response “how hard it was to . . . park on the street.”

Mrs. Hose testified, “I continued to park there [in the Parking Space] . . . because I

thought it was unnecessary -- it was our property.”

Mrs. Hose testified that after the O’Connells received Mr. Hose’s letter

about the Driveway in late February 2022, “the next day [was] when the

[O’Connell] truck showed up.” Counsel for the Hoses showed Mrs. Hose pictures

the Hoses entered into evidence, which show the location of the truck on various

dates beginning on February 26, 2022. Some of the pictures show the truck parked

at the edge of the Parking Space, while others show the truck partially parked

inside the Parking Space on March 2, 2022 (Plaintiffs’ Exhibit 32); March 3, 2022

(Plaintiffs’ Exhibits 33 and 34); and March 5, 2022 (Plaintiffs’ Exhibit 36).

When asked how the truck’s location next to the Parking Space affected

their ability to park in the Parking Space, Mrs. Hose responded, “[Mr. Hose] was

able to back in the car. Obviously I would have to get out prior to him backing in.

It made it very difficult. He was able to do it with a lot of caution.” When asked

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how the truck’s location parked partially inside the Parking Space affected their

ability to park in the Parking Space, Mrs. Hose responded, “It totally prevent[ed]

us from parking in what we consider our parking spot.” Mrs. Hose testified that the

O’Connells were not living at 6333 Annunciation during the time period the truck

was parked at the edge of or inside the Parking Space. Counsel for the Hoses asked

Mrs. Hose whether the O’Connells ever moved the truck during the approximately

twelve-week long period that the truck was parked at the edge of or inside the

Parking Space, and she explained:

The dad, [Mrs. O’Connell’s] father, came like maybe throughout the
whole 12 weeks like three times maybe moved it for a couple hours;
possibly overnight and moved it back. One time when he moved it
overnight, we pulled our car in and left it there overnight. The next
day he had someone who was watching our house waiting for me
leave for errands. As soon as I left for an errand he came back with
the truck and parked it again.

Mrs. Hose further explained that while this was occurring she underwent surgery

on her ankle, during which time she had to use a wheelchair or crutches. Mrs. Hose

testified she and Mr. Hose had to “park on the street wherever [they] could.”

Thereafter, she testified:

It was a very terrible time. It did not make any sense that they parked
the truck here when they were not living in the house. Yes. I definitely
suffered from it; not physically; mentally. We have a very, very
peaceful street. All the neighbors we care for each other. We take care
of each other; support each other. This was just so outwardly wrong.

It upset the whole neighborhood. It [was not] just us. It was very
obvious that all of a sudden we are not parking in our parking spot.
There is a truck there and the house is vacant next door. It was a very
difficult time. I do not wish this on anyone.

Whitney O’Connell’s Testimony

Mrs. O’Connell also testified at trial. In pertinent part, Mrs. O’Connell

testified that her house—6333 Annunciation—had a fence and palm trees located

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in the Driveway, which were installed by a previous owner. In relevant part, Mrs.

O’Connell also testified that the only way to reach her backyard was via the

Driveway.

Additionally, counsel asked Mrs. O’Connell about Plaintiffs’ Exhibit 33 and

Plaintiffs’ Exhibit 34, the photographs dated March 3, 2022. Mrs. O’Connell

described these photos as depicting “a work truck for my dad in front of our

house.” Mrs. O’Connell explained she “had [her] father park the vehicle [there] to

uphold the integrity of [their] property boundary.” Counsel then asked Mrs.

O’Connell if the pictures depictured the truck partially parked in the parking spot

in front of 6333 Annunciation and partially parked in the Driveway, to which she

answered affirmatively. Another photograph—Plaintiffs’ Exhibit 36—was dated

March 5, 2022, and it shows the truck parked partially in the Parking Space.

Though Mrs. O’Connell did not discuss this piece of evidence during her

testimony, we note Plaintiffs’ Exhibit 32 shows a gentleman—Mrs. O’Connell’s

father based on her testimony and the record—preparing to open the front driver

side door of the truck shown in Plaintiffs’ Exhibits 33, 34, and 36.

Clint Simoneaux’s Testimony

Finally, in pertinent part, Mr. Simoneaux, a surveyor with Gilbert, Kelly &

Couturie, testified about an April 14, 2022 survey he prepared of 6331

Annunciation. When asked whether the 6333 Annunciation fence as depicted on

his survey would block one-half of the Driveway, Mr. Simoneaux answered

affirmatively. At the close of trial, the trial court took the matter under advisement.

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April 26, 2024 Judgment on the Motion to Amend Judgment and for New
Trial; the Amended and Restated Judgment

On February 2, 2024, the trial court issued its judgment and written reasons

for the judgment. Then, on February 9, 2024, the Hoses filed a “Motion to Amend

Judgment and for New Trial.” On April 26, 2024, the trial court issued a judgment,

which denied the Hoses’ Motion for New Trial but granted their Motion to Amend

Judgment. In this latter regard, the trial court amended the judgment so as to grant

the Hoses’ claim for a permanent injunction enjoining the O’Connells from

interfering with or disturbing the use and enjoyment of the Driveway. The

Amended Judgment stated:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that Plaintiffs’, Louis V. Hose and Julie Hose, Petition for Declaratory
Judgment declaring their ownership of the parking space and
servitude of passage to access vehicles in the parking space is
DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Plaintiffs’ Louis V. Hose and Julie Hose, Petition to Enjoin
the Defendants’, James Scott O’Connell and Whitney Elizabeth
O’Connell, from interfering with or disturbing the use and enjoyment
of the parking space and servitude of passage to access the parking
space is DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Plaintiffs’ Louis V. Hose and Julie Hose, Petition to Enjoin
the Defendants, James Scott O’Connell and Whitney Elizabeth
O’Connell, from inferring with or disturbing the use and enjoyment of
the Dedication of Community Driveway servitude is GRANTED.
Said injunction includes interfering with or obstructing access to a
vehicle temporarily stopped in the community driveway.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Plaintiffs’, Louis V. Hose and Julie H. Hose, claim for
Prescription of Nonuse of the Dedication of Community Driveway,
registered in COB 500, folio 529, in favor of 6333 Annunciation
Street, New Orleans, Louisiana, is GRANTED. This Judgment
therefore extinguishes this Dedication of Community Driveway
servitude as a burden on 6331 Annunciation Street, New Orleans,
Louisiana. The Dedication of Community Driveway remains in favor

17

of 6331 Annunciation Street, New Orleans, Louisiana, and continues
to burden 6333 Annunciation Street, New Orleans, Louisiana.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Plaintiffs’ and Defendants’ respective Claims for Removal of
Certain Obstructions and Objects from the Community Driveway are
DENIED.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Plaintiffs’, Louis V. Hose and Julie H. Hose, claim for
monetary compensation arising from Defendants, James Scott
O’Connell and Whitney Elizabeth O’Connell, obstruction of the
parking space is DENIED.

The Hoses’ timely appeal followed. Additionally, the O’Connells timely filed an

“Answer to Appeal” (“Answer”) with this Court (summarized below).

ASSIGNMENTS OF ERROR

In their brief to this Court, the Hoses assert seven assignments of error.

Specifically, they contend:

1. The trial court erred in its interpretation of the legal
presumption found in La. [C.C.] art. 3427.

2. The trial court erred in finding that the Hoses failed to prove
intent to possess the parking space as owner. Specifically the court
erred in (a) requiring subjective, as opposed to objective, evidence of
intent; (b) finding facts contradicted by the parties’ stipulation[;] and
(c) holding that insufficient evidence was introduced regarding intent.

3. The trial court erred in finding facts on an issue not raised by
the parties, and in finding facts unsupported by any evidence, namely,
finding that the prior owners “allowed” parking pursuant to a
“hypothetical agreement” (the trial court’s own description). The trial
court also erred in inferring facts from the absence of testimony.

4. The trial court erred in ruling that acquisitive prescription did
not commence to accrue until 1988 based upon testimony from a fact
witness.

5. The trial court erred in requiring factual evidence that the
O’Connells’ trees and fence actually obstruct use of the common
driveway. The trial court erred in finding insufficient evidence of
actual obstruction.

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6. The trial court erred in finding that the Hoses must own the
Parking Space to assert claims for violation of the laws of vicinage
and/or trespass.

7. The trial court erred in finding that the law required the Hoses
to present expert testimony in order to recover damages for mental
anguish, inconvenience and loss of enjoyment of property.

ANSWER TO APPEAL

As noted previously, the O’Connells filed an Answer to the Hoses’ appeal,

wherein they requested this Court reverse or modify paragraphs 3, 4, and 5 of the

Amended Judgment. Below is their summary of the modification they request:

3. Defendants - Appellees respectfully request that this Honorable
Court reverse or in the alternative modify the District Court’s
Amended and Restated Judgment which granted Plaintiffs’ Louis V.
Hose and Julie Hose, Petition to Enjoin the Defendants, James Scott
O’Connell and Whitney Elizabeth O’Connell, from interfering with or
disturbing the use and enjoyment of the Dedication of Community
Driveway Servitude, which included interfering with or obstructing
access to the Hoses’ vehicle temporarily stopped in the community
driveway, as a matter of fact and law, since the Dedication of
Community Driveway did not provide the Hoses any temporary
parking, and as a matter of law, as the District Court improperly
enlarged the scope of the Dedication of Community Driveway, and
the Amended and Restated Judgment was not in adherence to the
requirements of Louisiana Code of Civil Procedure 3605.[5]

4. Defendants - Appellees respectfully request that this Honorable
Court reverse or in the alternative modify the District Court’s
Amended and Restated Judgment which granted Plaintiffs’ Louis V.
Hose and Julie Hose, claim for Prescription of Nonuse of the
Dedication of Community Driveway and therefore extinguished the
Dedication of Community Driveway servitude as a burden on 6331
Annunciation Street, New Orlean[s], Louisiana in favor of 6333
Annunciation Street, New Orleans, Louisiana as the Hoses failed to

5 Louisiana Code of Civil Procedure Article 3605 states:

An order granting either a preliminary or a final injunction or a temporary
restraining order shall describe in reasonable detail, and not by mere reference to
the petition or other documents, the act or acts sought to be restrained. The order
shall be effective against the parties restrained, their officers, agents, employees,
and counsel, and those persons in active concert or participation with them, from
the time they receive actual knowledge of the order by personal service or
otherwise.

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satisfy their burden of proof to show that the owners of 6333
Annunciation Street failed to use the Dedication of Community
Driveway, in a manner as prescribed therein, for a period of ten
consecutive years. The District Court improperly interpreted the
Dedication of Community Driveway and held that it only applied to
automobile and vehicles instead of automobile, vehicles, and persons
as clearly and unambiguously stated therein.

5. Defendants - Appellees respectfully request that this Honorable
Court reverse or in the alternative modify the District Court’s
Amended and Restated Judgment as to Defendants - Appellees claim
for the removal of certain obstructions and objects placed in the
Dedication of Community Driveway by the Hoses as the Dedication
of Community Driveway is a burden on both properties - in the event
that this Honorable Court reverses [or] modifies Paragraph 4 of the
Amended and Restated Judgment as the Dedication of Community
Driveway is clear that the common driveway shall remain
unobstructed in accordance with the Dedication of Community
Driveway and historical use of the immovable property.

Additionally, the O’Connells requested reasonable attorney’s fees and costs

associated with the appeal pursuant to La. C.C.P. art. 2164.

Based on our review of the record, the parties’ briefs, and the O’Connells’

Answer, we will discuss and resolve the following issues in this Opinion: (1)

acquisitive prescription; (2) prescription of non-use; (3) vehicles temporarily

stopped in the driveway; (4) obstructions; and (5) frivolous appeal damages.

Before doing so, we address a preliminary matter.

PRELIMINARY MATTER

On December 19, 2024, the Hoses filed with this Court a document they

titled “Appellants’ Answer to Appeal,” wherein they explained they were filing

“this Answer to the Appeal filed by Defendants/Appellees,” the O’Connells. That

is, the Hoses filed this pleading in response to the O’Connells’ Answer. The Hoses

contended the O’Connells’ appeal—by virtue of their Answer—was frivolous,

such that the Hoses were entitled to reasonable attorney’s fees and costs under La.

C.C.P. art. 2164. Then, on January 3, 2025, the Hoses filed another document with

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this Court, which they titled “Appellee Brief.” Therein, the Hoses contended that

because an answer filed by an appellee is equivalent to an appeal on his or her part

per La. C.C.P. art. 2133,6 the O’Connells’ Answer constituted an appeal because

they sought reversal of certain parts of the trial court’s Amended Judgment.

Accordingly, the Hoses asserted they were “appellees” for purposes of the

O’Connells’ Answer and thus entitled to file an appellee brief. Then, in response to

the Hoses’ aforementioned pleadings, on January 13, 2025, the O’Connells filed a

document with this Court, which they titled “Appellee/Defendant Reply Brief.”

Although the O’Connells stated in their pleading that “[n]othing in [La. C.C.P. art.

2133] discusses alteration of the designation of the appellant and appellees due to

the filing of an Answer,” they nonetheless responded to the arguments asserted by

the Hoses in their “Appellants’ Answer to Appeal” and “Appellee Brief.”

Neither the Louisiana Code of Civil Procedure, the Uniform Rules of the

Courts of Appeal, nor this Court’s Local Rules allow an appellant to file an

“answer” and/or an “appellee brief” in response to the appellee filing an answer to

appeal. There is no jurisprudential support for such pleadings either. Rather, the

appellant has the opportunity to respond to the appellee’s answer in their appellant

reply brief. See, e.g., Freeman v. Freeman, 552 So.2d 636, 639 (La. App. 2d Cir.

1989) (explaining that the appellant could not advance new issues in her reply brief

but could therein rebut the appellee’s answer to appeal (quoting Rule 2-12.6,

Uniform Rules, Courts of Appeal)). “To allow” an appellant to file an “answer”

and an “appellee brief” in response to an appellee’s answer “would invite an

6 Louisiana Code of Civil Procedure Article 2133(A) states, in pertinent part, that “[t]he

answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the
judgment rendered against him in favor of the appellant and of which he complains in his
answer.”

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endless sequence of counter-appeals” contrary to judicial economy. Id. The above-

delineated sequence of filings in the present dispute is a case in point. Moreover,

considering that the appellee must file an answer within fifteen days of the return

day or the notice of lodging, which fifteen-day deadline occurs before the appellant

must file the appellant brief, it is therefore possible (timing-wise) for the appellant

to address the appellee’s answer in the appellant brief too.

Considering the foregoing, the Hoses should have addressed the O’Connells’

Answer in their appellant brief and/or their appellant reply brief. Because there is

no support for the Hoses’ “Appellants’ Answer to Appeal,” the Hoses’ “Appellee

Brief,” and the O’Connells’ responsive “Appellee/Defendant Reply Brief,” we

have not considered these pleadings in our resolution of this matter, and we

pretermit discussion of same.

DISCUSSION

Acquisitive Prescription

The first issue for us to resolve is whether, as the Hoses allege, they proved

they acquired ownership of the Parking Space by means of thirty-year acquisitive

prescription. We begin with the standard of review. Resolution of the Hoses’

thirty-year acquisitive prescription claim requires consideration of the type of

possession exercised by the Hoses and their ancestors in title, chiefly the

possession exercised by the Fischers and Mrs. Pagett prior to the Hoses’ purchase

of 6331 Annunciation. The trial court should have determined whether their

possession was precarious and, if so, whether it changed to adverse at some point

in time. See 1026 Conti Holding, LLC v. 1025 Bienville, LLC, 2022-01288, p. 12

(La. 3/17/23), 359 So.3d 930, 940. See also Boudreaux v. Cummings, 2014-1499,

p. 4 (La. 5/5/15), 167 So.3d 559, 562. Based on our review of the record, the trial

22

court either did not do so or, if the trial court did make such a determination, the

trial court did not place its finding in the record. This was in error. 1026 Conti

Holding, LLC, 2022-01288, p. 12, 359 So.3d at 940. Typically, the trial court’s

determination as to “whether a party has possessed property sufficient to prove

thirty-year acquisitive prescription is a factual determination, which is subject to

[the] manifest error-clearly wrong standard of review.” Braud v. Bernstein, 2023-

0332, p. 3 (La. App. 4 Cir. 12/20/23), 381 So.3d 58, 61 (citing St. John Baptist

Church of Phoenix v. Thomas, 2008-0687, p. 7 (La. App. 4 Cir. 12/3/08), 1 So.3d

618, 623). See also Forrester v. Bruno, 2023-0336, 0335, p. 4 (La. App. 4 Cir.

12/7/23), 380 So.3d 598, 601-602 (quoting Grieshaber Fam. Props., LLC v.

Impatiens, Inc., 2010-1216, p. 6 (La. App. 4 Cir. 3/23/11), 63 So.3d 189, 194).

However, when, as here, the trial court failed to preliminarily determine the type of

possession at issue, this failure interdicted the fact-finding process. 1026 Conti

Holding, LLC, 2022-01288, p. 12, 359 So.3d at 940. If the record is complete, the

appellate court should conduct a de novo review. Id. (citing Boudreaux, 2014-

1499, p. 3, 167 So.3d at 561). Because the trial court’s failure to determine whether

the Hoses and their ancestors in title were precarious possessors interdicted the

fact-finding process, yet the record is complete, we review this issue de novo.

According to La. C.C. art. 3486, “Ownership and other real rights in

immovables may be acquired by the prescription of thirty years without the need of

just title or possession in good faith.” The party who asserts acquisitive

prescription has the burden of proving—by a preponderance of the evidence—

“intent to possess as owner and that” this “possession has been continuous and

uninterrupted, peaceable, public and unequivocal.” Delacroix Corp. v. Perez,

1998-2447, p. 3 (La. App. 4 Cir. 11/8/00), 794 So.2d 862, 865 (first citing La. C.C.

23

art. 3424; then citing La. C.C. art. 3476; then citing Rathborne v. Hale, 1995-1225,

1226, p. 4 (La. App. 4 Cir. 1/19/96), 667 So.2d 1197, 1200; and then citing

Bradford v. Thomas, 344 So.2d 717, 718-19 (La. App. 2d Cir. 1977)). Courts are to

make “every presumption . . . in favor of the holder of the legal title.” Rathborne,

1995-1225, 1226, p. 4, 667 So.2d at 1200 (first citing Bradford, 344 So.2d at 719;

then citing Babin v. Montegut Ins. Agency, Inc., 271 So.2d 642, 648 (La. App. 1st

Cir. 1972); and then citing Town of Broussard v. Broussard Volunteer Fire Dep’t,

357 So.2d 25, 28 (La. App. 3d Cir. 1978)).

Regarding possession, La. C.C. art. 3421 provides:

Possession is the detention or enjoyment of a corporeal thing,
movable or immovable, that one holds or exercises by himself or by
another who keeps or exercises it in his name.

The exercise of a real right, such as a servitude, with the intent
to have it as one’s own is quasi-possession. The rules governing
possession apply by analogy to the quasi-possession of incorporeals.

Louisiana Civil Code Article 3427 provides, “One is presumed to intend to possess

as owner unless he began to possess in the name of and for another.” This

presumption of intent to possess as owner does not attach in the case of a

precarious possessor. See Frost Lumber Indus. v. Harrison, 41 So.2d 674, 675 (La.

1949). “[A] precarious possessor” is “one who possesses with leave[] or consent.”

Succession of Kemp v. Robertson, 316 So.2d 919, 923 (La. App. 1st Cir. 1975)

(citations omitted). Louisiana Civil Code Article 3437 defines precarious

possession as “[t]he exercise of possession over a thing with the permission of or

on behalf of the owner or possessor.” One who enjoys the use of a servitude is a

precarious possessor. 1026 Conti Holding, LLC, 2022-01288, p. 15, 359 So.3d at

942 (first citing La. C.C. art. 3437; and then citing John T. Moore Planting Co. v.

Morgan’s La. & T.R. & S.S. Co., 126 La. 840, 870, 53 So. 22, 32 (La. 1908)). The

24

presumption of intent to possess as owner does not apply to a precarious possessor

because the precarious possessors’ possession is, instead, presumed to be the

precarious possessor “merely exercis[ing] a right” or prerogative. Boudreaux,

2014-1499, p. 7, 167 So.3d at 564 (citation omitted). According to La. C.C. art.

3477, “Acquisitive prescription does not run in favor of a precarious possessor or

his universal successor.”

As the Louisiana Supreme Court has explained in discussing precarious

possession, “the concept of implied permission as it relates to precarious

possession is . . . a viable theory of our civilian law.” Boudreaux, 2014-1499, p. 7,

167 So.3d at 563. That is, “even in the absence of express permission, tacit

permission can be presumed under the limited circumstances where ‘indulgence’

and acts of ‘good neighborhood’ are present.” Id. In such instances, a “neighborly

act of tolerance . . . cannot be, and is not, the foundation of adverse possession

needed for the purposes of acquisitive prescription.” Id. A landowner’s awareness

of a precarious possessor’s use and the landowner’s allowance thereof marks the

precarious possessor’s use as an authorized use that cannot be characterized as

adverse under the circumstances. Id. at p. 7, 167 So.3d at 564. It is only an

unauthorized use that would be characterized as adverse for acquisitive

prescription purposes. Id. at p. 7, 167 So.3d at 563-64.

The Louisiana Supreme Court has further explained that “by undertaking

certain actions, a precarious possessor can change his [or her] type of possession

and begin to prescribe.” 1026 Conti Holding, LLC, 2022-01288, pp. 15-16, 359

So.3d at 942. The precarious possessor must give actual notice of his or her intent

to possess as owner “sufficient to alert the landowner that [the] property [is] in

jeopardy” to thereby “commence[] . . . the prescriptive period.” Boudreaux, 2014-

25

1499, p. 8, 167 So.3d at 564 (first citing Delacroix Corp., 1998-2447, p. 10, 794

So.2d at 869; and then citing La. C.C. art. 3478). Continued use of the property in

the same manner does not constitute actual notice of a change of intent. See id. at

pp. 8-9, 167 So.3d at 564 (noting the precarious possessor, Mr. Boudreaux, merely

continued to use the subject right of way and that, with nothing more, the record

did not establish “actual notice was given to the landowner that [Mr.] Boudreaux

intended to change the nature of his possession”). See also Garner v. Holley,

42,477, p. 6 (La. App. 2 Cir. 10/3/07), 968 So.2d 234, 238 (noting that one

family’s continued use of “the shared driveway in almost the same manner” did not

establish an “alter[ation] [to] the parties’ initial intent” sufficient to commence

prescription). Additionally, the Louisiana Supreme Court has held if a precarious

possessor excludes third parties from using the property but does not exclude the

owner of the property, this action can “reasonably be construed as an exercise of . .

. the right to use the property, which is not sufficient to ‘give the owner some

notice that [the] property is in jeopardy.’” 1026 Conti Holding, LLC, 2022-01288,

p. 18, 359 So.3d at 943-44 (quoting St. John Baptist Church of Phoenix, 2008-

0687, p. 4, 1 So.3d at 621).

The owners of 6331 Annunciation had the right to use the Driveway

pursuant to the Dedication, i.e., a servitude. Thus, they were precarious possessors.

Id. at p. 15, 359 So.3d at 942. Because this is a matter of precarious possession, we

must consider the concept of tacit or implied permission. Mrs. Pagett’s testimony,

as well as the photographs entered into evidence, established the Fischers and the

Pagetts used the Parking Space for activities not permitted in the Dedication for

decades (chiefly to park vehicles for an extended period of time); and Mrs. Fischer

paved the Parking Space some time prior to the spring of 1988. However, the

26

owners of 6333 Annunciation may have allowed these activities as acts of

indulgence, good neighborhood, and neighborly tolerance. If the owners of 6333

Annunciation were aware of these activities and authorized same, then these

actions cannot be characterized as adverse so as to have commenced the

prescriptive period. The record does not establish whether that was or was not the

case, i.e., whether the owners of 6333 Annunciation permitted the owners of 6331

Annunciation to use the Driveway and Parking Space in these ways for the thirty

years necessary for acquisitive prescription. Cf. Boudreaux, 2014-1499, p. 5, 167

So.3d at 562 (the landowner, Mr. Cummings, explained the precarious possessor,

Mr. Boudreaux, merely used the right of way with his or his ancestor in title’s

“permission in a gesture of neighborly accommodation”); Delacroix, 1998-2447, p.

9, 794 So.2d at 868 (holding the evidence established the precarious possessor, Mr.

Perez, used the property with the consent and permission of the landowner,

Delacroix Corporation).

However, as with any acquisitive prescriptive claim, the Hoses—as the party

asserting acquisitive prescription—bore the burden of proving their ancestors in

title (the Fischers and the Pagetts) had intent to possess as owner. Thus, the Hoses

bore the burden of proving the prior owners of 6331 Annunciation had not used the

Driveway and Parking Space pursuant to such a tacit or implied agreement with the

owners of 6333 Annunciation, such that the actions by the owners of 6331

Annunciation were “unauthorized” and, therefore, adverse. Because they presented

no evidence of the absence of such an agreement (e.g. testimony by prior owners

of 6333 Annunciation for thirty years’ worth of possession), we conclude the

Hoses failed to meet their burden of proving thirty-year acquisitive prescription.

27

Even assuming arguendo there was no such tacit or implied agreement by

which the owners of 6331 Annunciation used the Driveway and Parking Space, we

nonetheless find the Hoses failed to prove their thirty-year acquisitive prescription

claim. As stated previously, a precarious possessor can change his or her type of

possession and begin to prescribe if the precarious possessor provides actual notice

of intent to possess as owner. Arguably, the actions taken by the owners of 6331

Annunciation could be construed as actions indicating an intent to possess as

owner because the Dedication did not authorize these actions, namely parking cars.

See Garner, 42,477, p. 7, 968 So.2d at 239 (holding “a right of passage did not

grant the greater right of parking” (citing Irland v. Barron, 230 So.2d 880, 886-87

(La. App. 2d Cir. 1970))). However, as explained above, if a precarious possessor

excludes third parties from using the property but does not exclude the owner of

the property, this action can “reasonably be construed as an exercise of the . . .

right to use the property, which is not sufficient to ‘give the owner some notice that

[the] property is in jeopardy.’” 1026 Conti Holding, LLC, 2022-01288, p. 18, 359

So.3d at 943-44 (citation omitted). In the matter sub judice, Mrs. Pagett’s

testimony established the owners of 6331 Annunciation did not exclude the owners

of 6333 Annunciation from using the Driveway and Parking Space. To the

contrary, Mrs. Pagett testified the owners of 6333 Annunciation sometimes

requested and received permission from the owners of 6331 Annunciation to park

in the Parking Space. Mrs. Pagett also testified regarding the Driveway, “It was a

common area. We used it. They used it; the owners of 6333 used it; the owners of

6331 used it.” The record thus fails to establish the owners of 6331 Annunciation

entirely excluded the owners of 6333 Annunciation from using the Driveway and

Parking Space for a period of thirty years so as to give the owners of 6333

28

Annunciation notice that their use of the property subject to the Dedication was in

jeopardy. For the foregoing reasons, we affirm the trial court’s judgment insofar as

it denied the Hoses’ claim in their Petition for a declaration of their ownership via

acquisitive prescription of the Parking Space.

We also affirm the trial court’s denial of the Hoses’ associated requests for a

declaration of a servitude of passage to access the Parking Space, for a permanent

injunction that would prohibit the O’Connells from obstructing or disturbing the

Hoses’ use and enjoyment of the Parking Space, and for damages. As the trial

court correctly noted in the reasons for judgment issued with its original judgment,

the Hoses’ claims for a servitude of passage and permanent injunction were

incidental to and dependent upon them succeeding on their acquisitive prescription

claim. Having found the trial court correctly denied the latter claim, we also affirm

the trial court’s denial of the former claims. Similarly, the Hoses’ testimony

regarding the damages they allegedly suffered related to their inability to park in

the Parking Space. Yet the Hoses did not have ownership of the Parking Space so

as to entitle them to same, and parking in that area was an action which they were

not allowed to do per the Dedication. Thus, we find the Hoses’ request for

damages was also incidental to and dependent on their success on their acquisitive

prescription claim. Accordingly, we affirm the trial court’s denial of their request

for damages.

Prescription of Non-Use

As previously summarized, in their Petition, the Hoses requested a

declaration that the servitude permitting a right of passage or driveway in favor of

6333 Annunciation had been extinguished by prescription of non-use. In the

Amended Judgment, the trial court granted the Hoses’ claim for prescription of

29

non-use and extinguished the servitude established by the Dedication in favor of

6333 Annunciation and as a burden on 6331 Annunciation. The trial court further

stated the servitude established in the Dedication remained in favor of 6331

Annunciation and as a burden on 6333 Annunciation.

When an appellate court reviews a trial court’s judgment regarding a

servitude, the appellate court employs the manifest error standard of review.

Thompson v. FRF Props., LLC, 2017-0152, p. 8 (La. App. 4 Cir. 11/2/17), 229

So.3d 598, 603 (quoting 1026 Conti Condos., LLC v. 1025 Bienville, LLC, 2015-

0301, p. 4 (La. App. 4 Cir. 12/23/15), 183 So.3d 724, 727). Under this standard of

review, the “appellate court may not set aside [the] trial court’s findings of fact

unless they are manifestly erroneous or clearly wrong.” Id. The appellate court

should reverse only if it “find[s] from the record that there is no reasonable basis

for the trial court’s finding and that the record shows the finding to be manifestly

erroneous.” Id. To determine if the trial court was manifestly erroneous or clearly

wrong, the appellate court “must do more than just review the record for some

evidence which supports or contradicts the trial court’s finding; but rather, it must

view the record in its entirety.” Id. at pp. 8-9, 229 So.3d at 603 (citing Stobart v.

State, Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La. 1993))

“A predial servitude is a charge on a servient estate for the benefit of a

dominant estate.” La. C.C. art. 646. Louisiana Civil Code Article 705 discusses the

predial servitude of passage and provides:

The servitude of passage is the right for the benefit of the
dominant estate whereby persons, animals, utilities, or vehicles are
permitted to pass through the servient estate. Unless the title provides
otherwise, the extent of the right and the mode of its exercise shall be
suitable for the kind of traffic or utility necessary for the reasonable
use of the dominant estate.

30

A predial servitude, such as a servitude of passage, “is extinguished by nonuse for

ten years.” La. C.C. art. 753. For affirmative servitudes, “[p]rescription of nonuse

begins to run . . . from the date of their last use.” La. C.C. art. 754. “When the

prescription of nonuse is pleaded, the owner of the dominant estate has the burden

of proving that he or some other person has made use of the servitude as

appertaining to his estate during the period of time required for the accrual of the

prescription.” La. C.C. art. 764. That is, the party who pleads prescription of non-

use is not the one who bears the burden of proof; rather “the burden of proving the

use of the servitude during the time necessary to prevent the running of

prescription, i.e., during the ten[-]year period” is upon the other party. Craig v.

Finnazzi, 159 So.2d 732, 733 (La. App. 4th Cir. 1964) (citations omitted).

Per La. C.C. art. 757, “A predial servitude is preserved by the use made of it

by anyone, even a stranger, if it is used as appertaining to the dominant estate.”

According to the Louisiana First Circuit Court of Appeal, “[t]he phrase

‘appertaining to the dominant estate’ means someone must use the servitude for the

purpose of going onto the dominant estate for some legitimate purpose, either to

see the owner or for something connected with the use of that property.” Naramore

v. Aikman, 2017-1621, p. 15 (La. App. 1 Cir. 6/4/18), 252 So.3d 935, 945 (citations

omitted). Additionally, this Court has explained that “[a]n essential element of

proof in extinguishing a servitude for nonuse is whether the servitude was in fact

used for any purpose consistent with its grant.” Thompson, 2017-0152, p. 9, 229

So.3d at 603-04 (emphasis added) (citing Palgrave v. Gros, 2002-249, p. 4 (La.

App. 5 Cir. 9/30/02), 829 So.2d 579, 582). When a document establishing a

servitude of passage does not define the mode of ingress or egress yet the

document does not limit the servitude to vehicular use, then both vehicular and

31

pedestrian usage are permissible. Carrere Holdings, LLC v. Williamson, 2024-

0141, pp. 9-10 (La. App. 4 Cir. 9/17/24), 400 So.3d 241, 248-49 (citing La. C.C.

art. 705). For example, in Thompson, this Court found the defendant’s evidence—

which included parking, driving, and/or walking onto the servitude in order to

access part of the property—proved usage consistent with the grant of the servitude

of passage and was therefore sufficient to interrupt prescription. 2017-0152, pp.

13-14, 229 So.3d at 605-06.

With these precepts in mind, we review the record to determine whether the

trial court manifestly erred in finding the O’Connells did not prove use of the

servitude in the ten-year period preceding the Hoses’ filing of their Petition. Mrs.

Pagett testified prior owners of 6333 Annunciation—the Hainkels—extended their

fence and added a gate in 1999, after which time she observed the owners of 6333

Annunciation walk down the driveway to access their gate. Mrs. Pagett also

testified more generally, “It was a common area. We used it. They used it; the

owners of 6333 used it; the owners of 6331 used it.” The Dedication established a

“right of . . . community passage” and specified it “include[d] the right of egress

and ingress to all persons owning or inhabiting” 6331 Annunciation and 6333

Annunciation. “When the words of a contract are clear and explicit and lead to no

absurd consequences, no further interpretation may be made in search of the

parties’ intent.” La. C.C. art. 2046. Applying this legal precept, a clear reading of

the Dedication’s terms shows it was not limited to vehicular use only; pedestrian

usage was also permissible. Though Mrs. Pagett generically stated the owners of

6333 Annunciation “used” the Driveway, she further stated she observed the

owners of 6333 Annunciation walking down the driveway to access the gate of

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6333 Annunciation. Their action of walking down the Driveway was a purpose

consistent with the Dedication.

The problem is that Mrs. Pagett did not specify a time period in relation to

her testimony. Mrs. Pagett explained the Hainkels added the gate in 1999 and that

she thereafter observed people walking down the driveway to use it, but her

testimony was too vague to establish the date of last use. Critically, Mrs. Pagett did

not state exactly when she observed the owners of 6333 Annunciation using the

Driveway. The only time period she referenced was the Hainkels’ addition of the

gate in 1999 and her observation of people walking down the driveway sometime

after the gate was installed; but that was more than ten years before the Hoses filed

their Petition in March 2022 and thus insufficient to counter the Hoses’ assertion of

non-use. Mrs. Pagett’s testimony never reached the level of specificity that would

allow this Court to establish a timeline of last use.

Notably, in their brief to this Court on this issue, the O’Connells only point

to Mrs. Pagett’s above-described testimony and the following colloquy during Mrs.

O’Connell’s testimony:

Q. How do you access your backyard?

A. I have to -- well, if I am in the front of my house, I have
to walk across the exposed aggregate to get to my fence. It is a
physical impossibility for me to not cross the exposed aggregate to get
to the rear of my house.

[Q.] Is there any other way from this point you just testified to
access your backyard?

A. If I walk through my front door and out my back door.

Though the act of walking would have interrupted the prescription of non-use,

Mrs. O’Connell’s testimony was also too vague to establish a use of the servitude

prior to the Hoses filing their Petition in March 2022 so as to interrupt the ten-year

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prescriptive period. That is, even if she did traverse the Driveway at some point

prior to the Hoses filing their Petition, Mrs. O’Connell did not affirmatively state

that she did in fact “cross the exposed aggregate to get to the rear of [her] house”

between purchasing her property in December 2021 and March 21, 2022, when the

Hoses filed their Petition. Of note, in their Petition, the Hoses alleged the

O’Connells were not even living at 6333 Annunciation at that time. And, crucially,

the O’Connells presented no other evidence regarding use of the Driveway and the

timing of same.

However, some of the Hoses’ own exhibits actually disprove their

prescription of non-use claim. As outlined earlier in this Opinion, Mrs. O’Connell

testified regarding Plaintiffs’ Exhibits 33 and 34, explaining that they depicted her

father’s work truck parked partially in the Driveway. Another exhibit—Plaintiffs’

Exhibit 32—shows that same truck, with Mrs. O’Connell’s father preparing to

open the front driver side door of the truck. In the picture, the truck was backed

into the Driveway, such that the front of the truck was pointed toward the street

with the driver side door being on the 6331 Annunciation side of the Driveway

rather than the 6333 Annunciation side. The gentleman is clearly standing on the

raised aggregate concrete, i.e., the Parking Space part of the Driveway. Another

photo (Plaintiffs’ Exhibit 36) depicts the same truck clearly parked on part of the

raised aggregate concrete. All four of these photographs from early March 2022

predate the Hoses’ Petition. Even though the photographs show someone other

than the O’Connells using the Driveway, as delineated above, an action by a third

party can interrupt prescription. La. C.C. art. 757. Moreover, Mrs. O’Connell’s

father was using the servitude in a manner “appertaining to the dominant estate”

for a “purpose consistent with its grant.” Id.; Thompson, 2017-0152, p. 9, 229

34

So.3d at 603-04. Mrs. O’Connell testified that she asked her father to park his truck

there to uphold 6333 Annunciation’s property rights, and the photographs establish

Mrs. O’Connell’s father both drove and walked for some distance on the servitude.

In this latter regard, we have already found a clear reading of the Dedication’s

terms shows it created a servitude of passage for not only vehicles but also for

people walking. Mrs. O’Connell’s father’s actions of driving his truck on the

Driveway and walking on same interrupted the prescription of non-use.

Accordingly, we conclude the trial court manifestly erred in granting the

Hoses’ claim of prescription of non-use and, correspondingly, in extinguishing the

servitude found in the Dedication in favor of 6333 Annunciation. We reverse this

part of the trial court’s judgment and grant the O’Connells’ request in their Answer

to reverse this part of the Amended Judgment. We amend the trial court’s

Amended Judgment to state that the Hoses’ claim of prescription of non-use is

hereby denied; and the servitude established by the Dedication in favor of 6333

Annunciation and as a burden on 6331 Annunciation remains in place. As

amended, we affirm that part of the Amended Judgment. We affirm the Amended

Judgment insofar as it held the servitude established by the Dedication in favor of

6331 Annunciation and as a burden on 6333 Annunciation remains in place.

Vehicles Temporarily Stopped in Driveway

Next, we consider the part of the Amended Judgment whereby the trial court

granted the Hoses’ request for injunctive relief regarding their use and enjoyment

of the Driveway. In granting this request, the trial court ruled in the Amended

Judgment that “[s]aid injunction includes interfering with or obstructing access to a

vehicle temporarily stopped in the” Driveway. In their Answer, the O’Connells ask

this Court to reverse or modify that part of the Amended Judgment. In particular,

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the O’Connells state that while the trial court’s order instructed them not to

“interfere[e] with or obstruct[] access to the Hoses’ vehicle temporarily stopped in

the community driveway,” this was improper because the Dedication “did not

provide the Hoses any temporary parking,” such that the trial court erred by

“enlarg[ing] the scope of the Dedication of Community Driveway.”

As quoted previously, La. C.C. art. 705 defines the servitude of passage as

“the right for the benefit of the dominant estate whereby persons, animals, utilities,

or vehicles are permitted to pass through the servient estate.” Further, as previously

noted, the Louisiana Second Circuit Court of Appeal (“Second Circuit”) has held

“a right of passage [does] not grant the greater right of parking.” Garner, 42,477,

p. 7, 968 So.2d at 239 (citing Irland, 230 So.2d at 886-87). For example, in

Garner, the Holleys contended that because “their property [was] used for

commercial purposes, being able to access the property and conveniently park

[were] reasonable uses by the dominant estate” as part of their servitude of

passage. 42,477, p. 7, 968 So.2d at 239. In contrast, Garner “argue[d] that to allow

the Holleys’ customers to park alongside his home would expand the servitude of

passage into a ‘servitude of parking.’” Id. The Second Circuit agreed with Garner,

noting La. C.C. art. 705 “is unambiguous” that a servitude of passage permits

passage through a servient estate and “find[ing] no reason to expand [La. C.C. art.

705] to allow vehicles to park on, and not just pass through, a servient estate.” Id.

at pp. 7-8, 968 So.2d at 239. The O’Connells cite Garner in their Answer in

support for their position that the Dedication did not provide the Hoses with

“temporary parking.”

However, in Lacour v. Continental Southern Lines, Inc., the Louisiana First

Circuit Court of Appeal (“First Circuit”) considered an accident which occurred

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after a bus driver “stopp[ed] [a] . . . bus momentarily for the purpose of receiving

[a] passenger” and defined the word “park” relative to vehicles. 124 So.2d 588,

594 (La. App. 1st Cir. 1960).7 The First Circuit explained “the term ‘park’” does

“not comprehend[] or includ[e] a merely temporary or momentary stoppage but

rather connotes a stoppage with the intent of permitting the vehicle to remain

standing for an appreciable length of time.” Id. (citing McGehee v. Stevens, 15

So.2d 897, 899 (La. App. 2d Cir. 1943)). The First Circuit further stated that

“neither does the word ‘park’ in common usage embrace the temporary cessation

of motion for the accomplishment of a particular lawful purpose, such as the

discharging or receiving of passengers.” Id. (internal quotation marks omitted)

(quoting McGehee, 15 So.2d at 899). See also Standard Cas. Co. v. Fid. & Cas.

Co. of N.Y., 162 So.2d 26, 30 (La. App. 1st Cir. 1964) (holding “the temporary

stopping of a vehicle” for loading branches “does not constitute parking” (citing

Lacour, 124 So.2d at 594)).

Turning to the matter sub judice, as previously explained, the Dedication

clearly established a servitude of passage for both cars and people. It does not

include a right to park vehicles and, in fact, specifies that “no automobiles or other

vehicles are to remain parked in said [D]riveway.” However, we disagree with the

O’Connells that the trial court enlarged the scope of the Dedication by permitting

“temporary stopping.” Both Lacour and Standard Cas. Co. stand for the

proposition that “temporary stopping,” is not the same as parking. Those cases

establish that when a vehicle is temporarily stopped for a defined purpose, such as

7 We note the First Circuit defined “park” in the context of the law now codified at La.

R.S. 32:141, which is titled “Stopping, standing, or parking outside business or residence
districts.” Although that statute is not at issue herein, we find the First Circuit’s explanation to be
applicable to and helpful in the matter sub judice.

37

picking up a passenger or loading items, this is not the same as a parked vehicle.

Thus, while the Dedication stated “no automobile or other vehicles are to remain

parked in” the Driveway, this phrasing elicits a temporal restriction to a vehicle’s

presence in the Driveway rather than an outright ban on a vehicle stopping in

Driveway. Stopping refers to briefly halting a vehicle with the intention of

returning to it, while parking refers to leaving the vehicle unattended for a period

longer than that needed for immediate loading or unloading. The Dedication does

not prohibit a vehicle from stopping in the Driveway for a limited time; it merely

prohibits a vehicle from parking in the Driveway. In light of the foregoing, we also

find the O’Connells’ reliance on Garner misplaced because that case is

distinguishable from this matter. In Garner, the dominant estate, which was a

commercial property, sought to have its customers park on the area subject to the

servitude of passage, thereby indicating a longer parking duration than what the

trial court envisioned in this matter when referencing “temporary stopping.”

Moreover, as quoted previously, La. C.C. art. 705 states, “Unless the title

provides otherwise, the extent of the right and the mode of its exercise [of the

servitude of passage] shall be suitable for the kind of traffic or utility necessary for

the reasonable use of the dominant estate.” La. C.C. art. 705 (emphasis added). We

hold that the ability to temporarily stop a vehicle is necessary for the reasonable

use of the Driveway for both 6331 Annunciation and 6333 Annunciation and

enhances the property owners’ ability to benefit from the Driveway. We list the

following examples of what might constitute “temporary stopping” in the hope that

doing so guides the parties’ actions in the future. Some examples that would not

violate the Dedication’s prohibition against parking include a driver in a vehicle

pulls in the Driveway, stops, and drops someone off or picks someone up from one

38

of the properties; a car stops in the Driveway while one unloads groceries from the

vehicle; or a car sits in the Driveway while one carries items to or from the

backyard of one of the properties. This list is designed to be illustrative rather than

exhaustive; but we emphasize that these are activities lasting for a limited time,

such that the vehicle in these examples would not be considered to have “remain

parked in said [D]riveway” in contravention of the Dedication. We also note this

holding is unique to the particular facts and circumstances of this case and further

emphasize that it does not expand the scope of La. C.C. art. 705 to permit parking

on a servitude of passage.

We therefore affirm the trial court’s Amended Judgment insofar as it granted

the request in the Hoses’ Petition to enjoin the O’Connells’ from interfering with

or disturbing their use and enjoyment of the Driveway. This affirmation includes

the part of the Amended Judgment which stated, “Said injunction includes

interfering with or obstructing access to a vehicle temporarily stopped in the

community driveway.” In light of our affirmation, we deny the O’Connells’

request in their Answer that we reverse or modify that sentence in the Amended

Judgment.

Obstructions

Next, we consider whether the trial court correctly denied the Hoses’ and the

O’Connells’ respective requests for removal of certain objects and obstructions

from the Driveway. This issue poses a question of law because it involves the

interpretation of codal articles, so the standard of review is de novo. Thiels v.

Dennis, 2009-957, p. 3 (La. App. 3 Cir. 2/3/10), 29 So.3d 715, 717 (applying the

de novo standard of review in determining whether the trial court erred in refusing

to order the demolition of brick columns erected on a servitude of passage).

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Turning to the pertinent code articles, La. C.C. art. 697 provides that “[t]he use and

extent of [predial] servitudes are regulated by the title by which they are created.”

Additionally, La. C.C. art. 748 is titled “Noninterference by the owner of servient

estate,” and it states, in pertinent part, “The owner of the servient estate may do

nothing tending to diminish or make more inconvenient the use of the servitude.”

As the Hoses observe in their brief, this Court has previously held:

A right of passage may be expressed in a contract or title. When
it is so expressed, and the title gives the exact dimensions of the area
affected by the servitude, the title must be given full effect. See
Sanders v. Plaquemines Cable TV, 407 So.2d 524 (La. App. 4[th] Cir.
1981). When the language in the title is clear and unambiguous, and
the location and extent of the servitude is unambiguous, then the right
of passage must be given full effect by the court. See White v.
Durrwachter, 431 So.2d 65, 68 (La. App. 1[st] Cir.1983).

Petrovich v. Trabeau, 1998-2897, p. 5 (La. App. 4 Cir. 3/7/01), 780 So.2d 1258,

1260.

As the Hoses also observe, this Court has ordered the removal of

obstructions that reduce the size of a servitude when a contract or title established

the size of the servitude. See Hymel v. St. John the Baptist Par. Sch. Bd., 303 So.2d

588, 592 (La. App. 4th Cir. 1974). Moreover, in reviewing a servitude in which a

title established the size, the First Circuit has even ordered the removal of

obstructions when the owner of the servient estate did not oppose the obstructions.

Dupont v. Hebert, 2006-2334, pp. 9-10 (La. App. 1 Cir. 2/20/08), 984 So.2d 800,

807-08. Additionally, the Louisiana Third Circuit Court of Appeal (“Third

Circuit”) has even ordered the removal of obstructions that did not prevent use of

the servitude by the dominant estate. Thiels, 2009-957, pp. 4-5, 29 So.3d at 718. In

Thiels, the Third Circuit explained “the trial court erred by interpreting testimony

40

regarding the use of the servitude” because doing so was “inconsistent with” La.

C.C. arts. 748 and 749. Id. (citing Dupont, 2006-2334, pp. 9-10, 984 So.2d at 808).

In the matter sub judice, the servitude in question was created by title, i.e.,

the Dedication, and the Dedication set the size of the servitude of passage at “seven

feet, two inches front on Annunciation Street, by a depth between equal and

parallel lines of One hundred and thirty feet, and is composed of three feet, seven

inches taken from lot No. 13 [what ultimately became 6331 Annunciation] and

three feet, seven inches taken from the adjoining side of lot No. 14 [6333

Annunciation].” During trial, Mrs. O’Connell testified the fence and palm trees

belonging to 6333 Annunciation are within the area established by the Dedication

when the following colloquy occurred:

Q. I will ask you the question again. That is fine. Do you -- did
you at the time of your deposition in August and do you still have a
fence located in the common driveway?

A. In the rear of the property, yes. There was a fence located
there when we bought it.

Q. Do you have palm trees located in the common
driveway?

A. I assume they probably are.

Q. You answered yes at your deposition?

A. Yes.

Q. It is your understanding that this Dedication of
Community Driveway is still in [e]ffect?

A. Yes.

Q. It runs as you said from the sidewalk -- front of the
property all the way to the rear of the property?

A. Yes.

41

Q. These things are in the common driveway that you are
asking the Court to enforce?

A. Yes. Among many other things but, yes.

In addition to Mrs. O’Connell’s above admissions, the parties stipulated that the

6333 Annunciation obstructions (the fence and trees) block part of the Driveway.

Also, the record contains an April 14, 2022 survey prepared by Mr. Simoneaux.

When asked whether the 6333 Annunciation fence as depicted on his survey would

block one-half of the common driveway, Mr. Simoneaux answered affirmatively.

Additionally, Mr. Hose admitted there are certain things associated with his

house—6331 Annunciation—that obstruct the Driveway, including a fence,

chimney, and air conditioning equipment.

In its written reasons for judgment, the trial court stated, “there was not

enough evidence presented at trial to indicate that these obstructions prevent either

vehicles or persons from using the servitude as it is defined in the dedication of

community driveway.” Per Dupont and Thiels, the trial court erred in considering

the use of the servitude in light of the fact that the Dedication established the size

of the servitude. Rather, because the evidence established the 6331 Annunciation

and 6333 Annunciation obstructions encroached on and changed the size of the

servitude (decreased it), the trial court should have automatically ordered their

removal. We also note that although the record established no opposition to these

obstructions when they were first put in place, this lack of opposition is of no

relevance per Dupont. Thus, in light of the foregoing testimony and jurisprudence,

we reverse the trial court’s judgment insofar as it denied the Hoses’ and the

O’Connells’ respective requests for an order directing the removal of the

obstructions in the Driveway. In so doing, we also grant that part of the

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O’Connells’ Answer wherein they ask us to reverse the trial court’s denial of their

claim for removal of the Hoses’ obstructions. In Thiels, the Third Circuit ordered

the defendants to remove the subject obstructions within fourteen days of the

finality of the judgment. We likewise include a deadline by which the parties must

act: the Hoses and the O’Connells must remove the above-listed obstructions

within thirty days of the finality of this Opinion. If the parties have any additional

obstructions in the Driveway, they must also remove these.

The O’Connells’ Request for Frivolous Appeal Damages

As stated previously, the O’Connells filed an Answer to Appeal, wherein

they not only requested amendment of the trial court’s judgment but also frivolous

appeal damages under La. C.C.P. art. 2164. Louisiana Code of Civil Procedure

Article 2133 delineates when an appellee must answer an appeal. It states, “An

appellee shall not be obliged to answer the appeal unless he desires to have the

judgment modified, revised, or reversed in part or unless he demands damages

against the appellant.” La. C.C.P. art. 2133. Further, La. C.C.P. art. 2164 provides:

The appellate court shall render any judgment which is just,
legal, and proper upon the record on appeal. The court may award
damages, including attorney fees, for frivolous appeal or application
for writs, and may tax the costs of the lower or appellate court, or any
part thereof, against any party to the suit, as in its judgment may be
considered equitable.

In interpreting La. C.C.P. art. 2164, this Court recently explained that “unless the

appeal is unquestionably frivolous, damages will not be granted” because

“[a]ppeals are always favored” and “frivolous appeal damages may result in a

‘chilling effect . . . on the appellate process.’” Alexander v. La. State Bd. of Priv.

Investigator Exam’rs, 2023-0159, p. 41 (La. App. 4 Cir. 10/25/24), ___ So.3d ___,

___, 2024 WL 4579179, at *19 (quoting Alexander v. La. State Bd. of Priv.

43

Investigator Exam’rs, 2019-0778, p. 20 (La. App. 4 Cir. 4/1/20), 293 So.3d 1243,

1256). Additionally, this Court has noted, “[B]ecause the statute [La. C.C.P. art.

2164] allowing the imposition of damages for frivolous appeal is penal in nature, it

must be strictly construed in favor of the appellant.” Forrester, 2023-0336, 0335,

p. 12, 380 So.3d at 606 (quoting Favret v. Favret, 2022-0820, p. 21 (La. App. 4

Cir. 7/31/23), 371 So.3d 511, 527). Doubt as to whether an appeal is frivolous

should be resolved in the appellant’s favor. Id. at p. 13, 380 So.3d at 607 (quoting

Favret, 2022-0820, p. 22, 371 So.3d at 527).

A frivolous appeal occurs when “[an appeal] does not present a substantial

legal question, if the sole purpose of the appeal is delay, or if the appealing counsel

does not seriously believe the view of the law that he advocates.” Alexander, 2023-

0159, p. 41, ___ So.3d at ___, 2024 WL 4579179, at *19 (alteration in original)

(quoting Alexander, 2019-0778, p. 20, 293 So.3d at 1256). Accordingly,

“[D]amages for a frivolous appeal will be awarded if the appellant is attempting to

delay the action, if the appellant does not believe what he is advocating, or if the

appeal presents no substantial legal question.” Id. (quoting Alexander, 2019-0778,

p. 20, 293 So.3d at 1257). The award of frivolous appeal damages “is only proper”

when “the proposition advocated is so ridiculous or so opposed to rational thinking

that it is evident beyond any doubt that it is being deliberately professed for

ulterior purposes.” Id. Unless the appeal meets one of those criteria, the appellate

court will not award frivolous appeal damages even if the “appeal lacks serious

legal merit.” Forrester, 2023-0336, 0335, p. 13, 380 So.3d at 607 (quoting Favret,

2022-0820, p. 22, 371 So.3d at 527).

Applying the rule of strict construction against the O’Connells and

considering the record in this case, we conclude the Hoses’ appeal is not frivolous.

44

The record does not support a finding that the Hoses filed their appeal for the

purpose of delaying the action; their counsel did not seriously believe the law or

position advocated; or the appeal presented no substantial legal question(s).

Therefore, this matter does not meet the requirements of a frivolous appeal, and we

deny the O’Connells’ request for frivolous appeal damages asserted in their

Answer.

CONCLUSION

We affirm the Amended Judgment insofar as the trial court: (1) denied the

Hoses’ request for a declaratory judgment recognizing them as owners via

acquisitive prescription of the Parking Space and a corresponding servitude of

passage for access to any vehicle located in the Parking Space; (2) denied the

Hoses’ request to issue an injunction to prevent the O’Connells from interfering

with their use of the Parking Space and a servitude of passage to access the Parking

Space; (3) granted the Hoses’ request for an injunction ordering the O’Connells not

to interfere with their use and enjoyment of the Driveway, noting that “[s]aid

injunction includes interfering with or obstructing access to a vehicle temporarily

stopped in the . . . [D]riveway”; and (4) denied the Hoses’ claim for monetary

compensation. We reverse the Amended Judgment insofar as the trial court granted

the Hoses’ claim for prescription of nonuse, thereby extinguishing the servitude as

a burden on 6331 Annunciation but retaining it in favor of 6331 Annunciation. We

amend the Amended Judgment to state that the servitude remains as a burden on

6331 Annunciation and in favor of 6333 Annunciation, and we affirm the judgment

as amended. We reverse the Amended Judgment insofar as the trial court denied

the Hoses’ and the O’Connells’ respective claims for removal of certain

obstructions in the Driveway (the fence and two palm trees associated with 6333

45

Annunciation and the fence, chimney, and air conditioning equipment associated

with 6331 Annunciation), and we order the parties to remove their respective

obstructions within thirty days of the finality of this Opinion.

In accordance with the above, we grant the O’Connells’ Answer in part and

deny it in part. We deny the O’Connells’ request to reverse or modify that part of

the Amended Judgment that enjoins them from interfering with or obstructing

access to a vehicle temporarily stopped in the Driveway by the Hoses. We grant

the O’Connells’ Answer to the extent they have asked us to reverse the trial court’s

grant of the Hoses’ claim of prescription of non-use. We also grant the

O’Connells’ request in their Answer to reverse the trial court’s denial of their

request for the removal of the Hoses’ obstructions in the Driveway. However, we

deny the O’Connells’ request for frivolous appeal damages.

DECREE

For the foregoing reasons, we affirm the April 26, 2024 Judgment in part;

we reverse the judgment in part; and we amend the judgment in part and affirm it

as amended. We also grant the O’Connells’ Answer in part and deny it in part, and

we deny their request for frivolous appeal damages.

AFFIRMED IN PART; REVERSED IN PART; AMENDED IN PART AND
AFFIRMED AS AMENDED

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