author: I,KUHN, J.

text:
    FIVE N COMPANY, L.L.C. and Phyllis Sandra, as Curator for Peggy Gore Spacie v. Samuel Page STEWART, Joseph Richard Panno, Rally's Hamburgers, Inc. and Washington State Bank.
    No. 2002 CA 0181.
    Court of Appeal of Louisiana, First Circuit.
    July 2, 2003.
    Rehearing Denied Aug. 13, 2003.

      Amy D. Berret, James P. Dore’, Baton Rouge, Counsel for Plaintiffs/Appellants University Square, L.L.C., Phyllis Sandra and University House.
    Ambrose V. McCall, New Orleans, Counsel for Defendants/Appellees Samuel Page Stewart and Joseph Richard Panno.
    Charles A. Schutte, Jr., Baton Rouge, Counsel for Defendant/Appellee Rally’s Hamburgers, Inc.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   I,KUHN, J.

Plaintiffs, University Square, L.L.C. (“University Square”) and Phyllis Sandra, as curator for Peggy Gore Spacie, appeal two judgments of the trial court. One judgment granted a motion for summary judgment by defendants, Samuel Page Stewart and Joseph Richard Panno, and denied plaintiffs’ cross-motion for summary judgment. The other judgment granted a motion for summary judgment in favor of defendant, Rally’s Hamburgers, Inc. (“Rally’s”), and dismissed plaintiffs’ suit for injunctive and declaratory relief. While this appeal was pending, we ordered the substitution of University House at Northgate I, L.P. (“University House”) as proper party plaintiff-appellant in lieu of University Square and Sandra. Pursuant to this appeal, we deny Stewart and Pan-no’s exceptions of no right of action and res judicata, and we reverse that portion of the trial court’s judgments that granted the defendants’ motions for summary judgment. Pursuant to our supervisory jurisdiction, we also grant University’s House’s motion for summary judgment in part and remand for further proceedings.

At issue in this case is whether a tract of land, referred to herein as the 12-Foot Strip, is subject to the provisions of a lease agreement executed in 1987. This 2000 square-foot tract of land forms a 12-foot-wide border along two sides of a parcel of property (the “Corner Parcel”) that is located at the corner of Highland and West State Street in Baton Rouge, Louisiana. This “Córner Parcel” is adjacent to the University Shopping Center and its parking lot. When the trial court’s judgments were signed, University Square was the current owner of the University Shopping Center and its parking lot, which includes the 12-Foot Strip. At the time of the 1987 1¡¡lease, however, Peggy Gore Spacie (“Spa-cie”) (represented in the proceedings below by her daughter, Phyllis Sandra, as her curator) held 100% of the leasehold interest in the parking lot and the 12-Foot Strip; Five N Company, L.L.C. (“Five N Company”), University Square’s predecessor, owned the parking lot and the 12-Foot Strip (subject to the leasehold); Theodore F. Cangelosi (“Cangelosi”), Spacie’s former husband, owned a usufruct of an undivided 50% of the leasehold interest; and Stewart and Panno owned the Corner Parcel.

In November 1987, Cangelosi executed an agreement that purported to lease the 12-Foot Strip to Gulf South Foods, Inc. (“Gulf South”) d/b/a Rally’s, which one month later assigned its rights as lessee to Stewart and Panno. In 1985, prior to Cangelosi’s execution of the lease, Spacie executed a general power of attorney that authorized Cangelosi to act on her behalf. Cangelosi had signed other leases pursuant to this power of attorney. In those leases, Cangelosi had indicated that he was acting as Spacie’s agent, but when he executed the 1987 lease in question, he signed only his name, making no reference to Spacie, her property interests, or the power of attorney. The text of the lease does not otherwise indicate that Cangelosi was acting on Spacie’s behalf. Neither Spacie nor Five N Company signed the lease.

The parties dispute whether Cangelosi executed this lease of the 12-Foot Strip in his individual capacity as usufructuary, or whether he executed the lease in his representative capacity, as Spacie’s mandatary. Appellants claim that because Cangelosi signed the lease only in his personal capacity, he leased only his usufructuary rights, which were extinguished upon his death in July 1992. Thus, appellants argue that Stewart and Panno’s leasehold interests ceased in July 1992. |4 Appellees assert that the lease is valid despite Cangelosi’s death. They contend that Cangelosi effectively bound Spacie pursuant to the power of attorney, urging that Spacie’s power of attorney did not require Cangelosi to sign in a representative capacity.

I. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a 1963 lease agreement, Losavio Realty Co., Inc. (“Losavio Realty”) leased the tract of land that encompasses the University Shopping Center parking lot and the 12-Foot Strip to Can-gelosi. This lease initially provided for a 50-year term, but it was later amended to provide for a 70-year lease term, ending in the year 2037. When the lease was executed, Cangelosi was married to Spacie (known then as “Daisy Skardon Gore Can-gelosi”). During 1975, Cangelosi and Spa-cie divorced. In 1980, pursuant to an agreement to exchange and a partition of community property between Spacie and Cangelosi, Cangelosi transferred his interest in the 1963 ground lease (covering the parking lot, the 12-Foot Strip, and other portions of the University Shopping Center) to Spacie. Thus, Spacie became the owner of 100% of the leasehold interest in the parking lot and the 12-Foot Strip. Under the agreement to exchange, Cange-losi reserved only a usufructuary interest in an undivided 50% of the leasehold interest. The agreement to exchange and the partition were both recorded in the official records of East Baton Rouge Parish during 1980.

Thereafter, on September 26, 1985, Spa-cie executed a power of attorney that provided, among other powers, that Cangelosi had the power to “lease as Lessor ... for and on behalf of [Spacie] ... unto any person, firm or corporation interested in acquiring any such interest in, any and all property ... whether movable and/or | ^immovable ... including ... property located within the Parish of East Baton Rouge, State of Louisiana.” This power of attorney was also recorded in the official records of East Baton Rouge Parish. Pursuant to this power of attorney, Cangelosi managed all of Spacie’s property in Baton Rouge, Louisiana, until December 17, 1991, when Spacie revoked the power of attorney.

On November 12, 1987, Cangelosi and Gulf South executed an instrument entitled, “Lease of Commercial Property (GROSS).” This document purported to lease the 12-Foot Strip for a period of 49 years, beginning on December 1, 1987, for $25,000. Rental payments were paid to Cangelosi during the years of 1987, 1988, and 1989. The parties do not dispute that this lease agreement was not recorded in the public records upon its execution. On December 10,1987, Gulf South assigned its leasehold rights in the 12-Foot Strip to Stewart and Panno, and the assignment, with the 1987 lease agreement attached, was recorded in the official records of East Baton Rouge Parish.

Then, in December 1991, Spacie revoked her power of attorney, and in 1992, filed suit against Cangelosi and his then current wife, Kathleen Cangelosi (“Kathleen”). (Daisy (Peggy) Skardon Spacie vs. Theodore F. Cangelosi, et al, Suit No. 378,317, Div. “A”, 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, referred to herein as “the 1992 suit”). Therein, Spacie alleged that Can-gelosi was the manager of the University Shopping Center and her agent from 1973 through December 1991. Spacie alleged that at all times prior to October 1991, she had “blind confidence in [Cangelosi] as her agent and always did that which he advised, as she had a lack of understanding of such matters .... ” The suit further alleged that Cangelosi had violated his fiduciary relationship with Spacie | fiwith respect to his handling of multiple real estate and financial transactions involving the University Shopping Center property and other properties jointly owned by Cangelo-si and Spacie. Spacie sought an accounting from Cangelosi regarding his handling of her share of the properties and monies comprising the former community that existed between Cangelosi and Spacie. Spa-cie also sought various monetary damages and the rescission of purported sales and assignments of interests by Cangelosi to Kathleen.

Before the suit against Cangelosi could be resolved, he died in July 1992. In June 1994, a compromise agreement was reached between Kathleen, the Theodore F. Cangelosi succession (represented by Sandra, Cangelosi’s daughter, in her capacity as administratrix), and Spacie (represented by her husband Roy W. Spacie (“Roy”) as her curator). The compromise agreement resolved the allegations of the 1992 suit, along with the allegations of five other lawsuits involving claims by or against Cangelosi, Sandra (in her capacity as administratrix), Kathleen, or Spacie. Following the death of Roy, Sandra was appointed to serve as Spacie’s curator in December 1994.

In May 1997, Five N Company and Sandra, in her capacity as Spacie’s curator, filed this suit against defendants Stewart, Panno, and Rally’s. At the time this suit was filed, the parking lot and the 12-Foot Strip remained subject to the 1963 ground lease. Losavio Realty’s interests had been transferred to Tessa Inc., who sold its | ./interests to Five N Company in 1994. Thus, Five N Company owned the parking lot and the 12-Foot Strip, and Spacie was the ground lessee of both the parking lot and the 12-Foot Strip. Rally’s was the lessee of the Corner Parcel pursuant to a 1993 lease agreement with Stewart and Panno, who owned the Corner Parcel. Plaintiffs, Five N Company and Sandra, alleged that a building formerly used as a “Rally’s” fast-food restaurant is located on the Corner Parcel and that the defendants have been trespassing on the 12-Foot Strip. The petition further alleged that defendants have constructed curbs and other improvements on both the parking lot and the 12-Foot Strip without the legal right to do so. Plaintiffs sought injunctive relief prohibiting the defendants from using or trespassing on the parking lot and the 12-Foot Strip. Plaintiffs also sought declaratory relief that: 1) the 12-Foot Strip is free from any leases or other encumbrances, including the 1987 lease of the 12-Foot Strip; and 2) defendants are not entitled to use the parking lot, including but not limited to the 12-Foot Strip.

Stewart and Panno answered the petition, admitting that Spacie had not personally signed the 1987 lease agreement between Cangelosi and Gulf South. They asserted, however, that the 1987 lease agreement was valid because Cangelosi had acted on Spacie’s behalf when he signed it. Alternatively, they prayed that plaintiffs should be estopped from claiming that the lease agreement was null. Stewart and Panno also filed a third-party demand against Gulf South and Cangelosi, praying for indemnity and contribution.

Rally’s also answered the petition, urging the 1987 lease agreement bound Spa-cie’s interests. Additionally, Rally’s filed a cross-claim against Stewart and |8Panno, asserting that in the event that the court declares the 1987 lease of the 12-Foot Strip to be invalid as to Spaeie’s interests, Rally’s is entitled to have the Corner Parcel Lease declared null. Rally’s maintained that the lease of the 12-Foot Strip was essential to its restaurant’s operations because improvements constructed on the 12-Foot Strip provide parking and a driveway accessing one of the restaurant’s drive-in windows.

After Five N Company merged into University Square in 1999, the trial court signed an order substituting University Square in lieu of Five N Company as proper party plaintiff. Plaintiffs, University Square and Sandra, filed a motion for summary judgment, contending Cangelosi had not executed the 1987 lease agreement on Spacie’s behalf, and Spacie had not executed the purported lease or consented to its execution.

In response to plaintiffs’ motion, Stewart and Panno filed an exception of res judicata, urging that the 1994 compromise agreement between the Cangelosi succession and Spacie barred the present action. Rally’s also filed an exception of res judi-cata based on the 1994 compromise agreement and an exception of no right of action.

In July 2001, the trial court held a hearing to address the exceptions. At that hearing, Sandra testified that she was the current manager of University Square, | flwhich at that time owned the properties comprising the University Shopping Center. She acknowledged that University Square does not own the Corner Parcel and that she had made an offer to purchase the Corner Parcel from Stewart and Panno between 1995 and 1997 that was rejected. She sought to put the whole tract of land surrounding the shopping center together because it was difficult to manage in a piecemeal fashion. Sandra also testified that when the 1994 compromise was effected, she was aware of the 1987 lease, which purportedly affected the 12-Foot Strip.

Following the hearing on the exceptions, the trial court deferred consideration of the exceptions to a later date, upon which plaintiffs’ motion for summary judgment had been scheduled for consideration. Thereafter, Stewart and Panno filed a motion for summary judgment, arguing that Cangelosi possessed authority to act on Spacie’s behalf when the 1987 lease was executed. Stewart and Panno also argued that because Sandra and Five N Company (and its successor entities) were aware of the lease transaction involving Stewart and Panno before the 1994 Spacie/Cangelosi settlement agreement was executed, plaintiffs knowingly waived the right to bring any actions regarding the validity of the 1987 lease and its subsequent assignment.

During a September 24, 2001 hearing, the trial court pretermitted a ruling on the pending exceptions and rendered summary judgment in favor of Stewart and Panno. The trial court found that Cangelosi had exercised his authority to act on Spacie’s behalf when he executed the 1987 lease.

11 (¡Thereafter, Rally’s filed a motion for summary judgment referencing the judgment rendered in favor of Stewart and Panno. On October 81, 2001, the trial court signed two written judgments. The first judgment granted Stewart and Pan-no’s motion for summary judgment and denied plaintiffs’ motion for summary judgment. The second judgment granted Rally’s motion for summary judgment and dismissed all of the plaintiffs’ claims. Sandra and University Square then appealed these judgments, urging that the trial court erred by: 1) granting Stewart and Panno’s motion for summary judgment; 2) granting Rally’s motion for summary judgment; and 3) denying plaintiffs’ motion for summary judgment.

Stewart and Panno answered plaintiffs’ appeal, claiming the appeal is frivolous and seeking an award of damages and costs. Stewart and Panno also re-urged their exception raising the objection of res judicata and filed another exception raising the objection of no right of action with this court.

II. ANALYSIS A. No Right of Action

The peremptory exception pleading the objection of no right of action challenges whether plaintiff has an actual interest in bringing the action. La. C.C.P. art. 927 A(5); Northshore Capital Enterprises v. St. Tammany Hosp. Dist. # 2, 01-1606, p. 4 (La.App. 1st Cir.6/21/02), 822 So.2d 109, 112, writ denied, 02-2023 (La.11/1/02), 828 So.2d 584. Whether a person has a right of action depends on whether the particular plaintiff belongs to the class in whose favor the law extends a remedy. |1¶ Id. In other words, the exception questions whether the plaintiff has an interest in judicially enforcing the right asserted. Id. Whether a plaintiff has a right of action is a question of law. Therefore, it is reviewed de novo on appeal. Jackson v. St. Helena Parish Sheriff’s Dep't, 01-2792, p. 2 (La.App. 1st Cir.1/8/02), 835 So.2d 842, 844. To prevail, the defendant must show that the plaintiff does not possess an interest in the subject matter of the suit. Id.

In support of the exception, Stewart and Panno have asserted that although Spacie died after the October 31, 2001 trial court judgment, plaintiffs have taken no action to substitute a party other than her curator as her representative. This court took judicial notice of Spacie’s death, and by order dated March 5, 2003, we recognized that Sandra’s authority as curator terminated upon Spacie’s death. We ordered counsel for plaintiffs-appellants to formally designate and substitute Spacie’s heirs and/or legal successors or assigns as plaintiffs-appellants in lieu of Sandra. In response, University Square and Sandra filed a motion to substitute University House as proper party plaintiff, which was granted by this court on March 18, 2003. In support of University House’s substitution, plaintiffs referenced evidence establishing that Spacie had transferred her interest in the subject property to University Shopping Center, Five N Company and University Shopping Center had merged into University Square, and University Square had became the sole owner of the subject property. Plaintiffs further represented that University Square had subsequently entered into a contract of sale regarding the subject property, which has been sold to University h ¡House, and that all litigation rights pertaining to the property have been assigned to University House.

Prior to the substitution of University House, Stewart and Panno had likewise asserted that University Square and Spa-cie had sold all rights in the property at issue, i.e. the University Shopping Center, to University House after the trial court judgment was signed. Stewart and Pan-no maintained that since University Square and Spacie had assigned all litigation rights and liabilities in this proceeding to University House, they currently have no existing rights in this proceeding. Because University House has been substituted as proper party plaintiff, Stewart and Panno’s exception of no right of action is now moot. But even if we had not ordered the substitution, we find that Stewart and Panno’s arguments had no merit.

Although the peremptory exception pleading the objection of no right of action challenges whether plaintiff has an actual interest in bringing the action, Stewart and Panno had not argued that either University Square or Spacie did not have an actual interest in enforcing their claims. Stewart and Panno had merely contended that they could no longer pursue these claims because the transfer to University House had taken place. However, La. C.C.P. art. 807 provides, “When a party to an action transfers an interest in the subject matter thereof, the action shall be continued by or against such party, unless the court directs that the transferee be substituted for or joined with the transfer- or.” Thus,- notwithstanding a substitution based on the alleged, transfer, University Square and Sandra would have properly continued this action as 11sthe parties who were involved in this litigation at the time of the trial court’s judgments. See Seale v. Abadie, 99-771, p. 4 (La.App. 5th Cir.1/12/00), 752 So.2d 971, 973. Accordingly, the exception raising the objection of no right of action is denied.

B. Res Judicata

Although Stewart and Panno filed the exception raising the objection of res judicata in the trial court proceedings, the trial court’s judgments were silent regarding the exception. Usually, when a trial court judgment is silent as to an exception, it. is presumed that the trial court denied the exception. Bogalusa Community Medical Center v. Batiste, 603 So.2d 183, 187 (La.App. 1st Cir.1992); R.A.K v. Employees Group Ben. Program, 558 So.2d 633, 634, n. 1 (La.App. 1st Cir.1990). But in this case, because the trial court expressly stated that it was not considering the exception, and since Stewart and Panno have re-urged the exception in this court, we will treat the exception as though it were being raised for the first time rather than as a review of an implicit denial of the exception.

Various claims between Spacie and the Succession of Cangelosi were resolved pursuant to the 1994 compromise agreement that resolved the lawsuits involving Cangelosi, Sandra, Kathleen, and Spacie. Thereafter, pursuant to a joint motion and order dated August 10, 1994, the claims settled in the 1994 compromise agreement were declared adjudged by the court and any claims that were not settled were dismissed with prejudice. Stewart and Panno assert that the release language of the compromise agreement and the August 1994 judgment bar the present claims of | uUniversity House (and the previous plaintiffs-appellants). Specifically, they allege that University House “is barred from complaining about the effects or consequences of leases entered into by Cangelosi involving the University Shopping Center.” They contend, “[A]ll claims against Cangelosi, his successors or assignees, disputing such leases, were resolved or disposed of by the Compromise Agreement and the District Court’s prior judgment.”

There is no question that a compromise or transaction has a force equal to the authority of the things adjudged. La. C.C. art. 3078. A valid compromise is appropriately raised as a bar to litigation via the objection of res judicata. Brown v. Drillers, 93-1019, p. 6 (La.1/14/94), 630 So.2d 741, 747. As amended by Act No. 521 of 1990, effective January 1,1991, Louisiana’s res judicata statute, La. R.S. 13:4231, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action | isexisting at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The party raising the objection of res judicata bears the burden of proving the essential facts to support the objection. Diamond B Const. Co., Inc. v. Dep’t of Transp. and Dev., 02-0573, p. 8 (La.App. 1st Cir.2/14/03), 845 So.2d 429. The doctrine of res judicata is not discretionary and mandates that final judgments be given effect. Id. The doctrine, however, cannot be invoked unless all its essential elements are present. It is strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-0993, p.7 (La.App. 1st Cir.7/03/02), — So.2d -, -, 2002 WL 1434422.

“Res judicata,” as referenced in La. R.S. 13:4231, encompasses both claim preclusion (res judicata) and issue preclusion (collateral estoppel) as previously explained by this court in Diamond B Const., 02-0573 at pp. 9-10, 845 So.2d at 435-36:

Under claim preclusion, a res judicata judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes re-litigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: 1) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided.

But despite the wide scope of the doctrine contemplated by La. R.S. 13:4231, a plea of res judicata cannot be raised against a litigant who was neither a party to the [^former suit nor the successor to the rights of one of the parties of the former suit. Sun Finance Co., Inc. v. Jackson, 525 So.2d 532, 534 (La.1988); Kibodeaux v. Kibodeaux, 93-1143, p. 3 (La.App. 3d Cir.4/6/94), 635 So.2d 530, 532. Even after its amendment, La. R.S. 13:4231 requires “identity of the parties” to preclude a subsequent suit, by providing that “a valid and final judgment is conclusive between the same parties.” Burguieres v. Pollingue, 02-1385, p. 5 (La.2/25/03), 843 So.2d 1049. There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978); Horrell v. Horrell, 99-1093, p. 5 (La.App. 1st Cir.10/6/00), 808 So,2d 363, 374. Identity of parties is satisfied when a privy of one of the parties is involved. Burguieres v. Pollingue, 02-1385, p. 5 n.3, 843 So.2d at 1052. In its broadest sense, “privity” is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right. Noel v. Jumonville Pipe & Machinery Co., 245 La. 324, 336, 158 So.2d 179, 184 (1963), quoting 72 C.J.S. Privity; Privies; Privy, pp. 954 — 956. In connection with the doctrine of res judica-ta, a “privy” is “one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment through or under one of the parties, as by inheritance, succession, purchase or assignment.” Black’s Law Dictionary 1200 (6th ed.1990).

Relying on Ditch v. Finkelstein, 399 So.2d 1216, 1222 (La.App. 1st Cir.1981), Stewart and Panno argue that they are in privity with Cangelosi and, thus, that the current suit is barred based on the prior compromise agreement and judgment involving the Cangelosi succession. In Ditch v. Finkelstein, this court held that the res judicata requirement of identity of the parties was met where a successor or privy |17of one of the parties to the compromise was involved. Ditch involved a suit between the heirs of five parties to a compromise and the successors in title of the sixth party to the compromise. The court held that all the parties involved in the lawsuit were successors to the original redactors of the compromise agreement and were, therefore, the same parties “in the legal sense of the word.” Id.

But Stewart and Panno’s reliance on the Ditch case is misplaced; it does not support their claim of privity. In the present case, Stewart and Panno were neither parties to the compromise agreement nor successors to any of the parties or property rights involved in the compromise agreement. Although Stewart and Panno’s claimed interest in the 12-Foot Strip derives from Cangelosi, as the lessor of the property, Stewart and Panno are not Can-gelosi’s successors or his privies insofar as the compromise agreement is concerned. Stewart and Panno do not have the same rights of property that the succession had at the time of the compromise. Whatever rights were derived from the lease agreement with Cangelosi were derived prior to the execution of the compromise agreement. The lease agreement was executed in 1987, and the compromise agreement was executed in 1994. Stewart and Pan-no’s interests in the 12-Foot Strip are not derivative from the 1994 compromise agreement and related judgment. Likewise, none of Stewart and Panno’s interests were acquired after Spacie instituted the 1992 suit that was resolved by the 1994 compromise. Accordingly, we find that Stewart and Panno do not now appear in this suit in the 11ssame quality or capacity that Sandra appeared when she executed the 1994 compromise agreement on behalf of Cangelosi’s succession. We do not find these parties are the same in the legal sense of the word. Thus, because Stewart and Panno have not established the “identity of the parties” element that is required for res judicata, the compromise agreement and related judgment do not preclude this suit. We deny the exception of res judicata.

C. Motions for Summary Judgment

We note that the denial of a motion for summary judgment is an interlocutory judgment that is not appealable absent a showing of irreparable injury. See La. C.C.P. arts. 968, 1841, 2083; Pitts v. Fitzgerald, 01-0543, p. 5 n.8 (La.App. 1st Cir.5/10/02), 818 So.2d 847, 850. In the present case, plaintiffs have made no showing of irreparable injury. But we note that the issues addressing the effect of the 1987 lease are the same in each of the parties’ motions for summary judgment. Thus, in the interests of judicial economy and because plaintiffs have challenged the denial of their motion in connection with other appealable judgments (the two judgments granting summary judgment in favor of the defendants), we will treat that portion of this appeal that seeks review of the denial of plaintiffs’ motion for summary judgment as an application for supervisory writs. See Trahan v. Prudential Property & Cas. Ins. Co., 97-2470, p. 3 (La.App. 1st Cir.5/14/99), 739 So.2d 811, 813. We grant that application, however, only insofar as the issues raised therein are the same as those raised in the defendants’ motions for summary judgment. The application is otherwise denied. Accordingly, we address whether the 12-Foot Strip is subject to |19the provisions of the 1987 lease but we do not reach the issues of whether the trial court erred in denying plaintiffs’ request for declaratory relief addressing other portions of the parking lot and in denying plaintiffs’ request for injunctive relief.

1. Summary Judgment Law and Standard of Review

Summary judgment procedure is favored in Louisiana. La. C.C.P. art. 966 A(2). A motion for summary judgment shall be granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. When a party moves for summary judgment, he bears the initial burden of proving that no genuine issue of material fact exists. La. C.C.P. art. 966 C(2). Once the mover has met this initial burden and if the non-movant bears the burden of proof at trial on the issue before the court, then the burden shifts to him to present evidence demonstrating that material factual issues remain. La. C.C.P. art. 966 C(2). Barrios v. Wal-Mart Stores, Inc., 00-2138, p. 2 (La.App. 1st Cir.12/28/01), 804 So.2d 905, 907, writ denied, 02-0285 (La.3/28/02), 812 So.2d 636. When addressing legal issues raised by a motion for summary judgment, this court gives no special weight to the findings of the trial court. It conducts a de novo review of questions of law and renders a judgment on the record. Campbell v. Market American Ins. Co., 00-1448, p.5 (La.App. 1st Cir.9/21/01), 822 So.2d 617, 620, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204.

2. Validity of Lease after Theodore Cangelosi’s death

University House does not seek a declaration that the 1987 lease and assignment were invalid but rather a declaration that the rights transferred under the lease and assignment were extinguished upon Cangelosi’s death in 1992. La. C.C. art. | gn567 provides in part, “The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct.” La. C.C. art. 607 states, “The right of usufruct expires upon the death of the usufructu-ary.” Likewise, La. C.C. art. 2730 sets forth in part, “A lease made by one having a right of usufruct, ends when the right of usufruct ceases.” Therefore, if Can'gelo-si’s signature on the 1987 lease did not legally bind Spacie, then Stewart, Panno and Rally’s rights under the 1987 lease were extinguished upon Cangelosi’s death in 1992. Thus, we consider whether Spa-' cie was bound by Cangelosi’s act of signing the 1987 lease in his individual capacity while holding a general power of attorney to act on Spade’s behalf.

When Spacie executed the general power of attorney in 1985 and when Cangelosi executed the lease in 1987, La. C.C. art. 2985 provided that a “mandate ” or “letter of attorney ” is “an act by which one person gives power to another to transact for him and in his name, one or several affairs.” In the present case, University House does not challenge that Cangelosi held a mandate to act on Spacie’s behalf when the lease was executed. University House asserts, however, that Cangelosi did not exercise this mandate when he executed the lease, evidenced by the fact that the lease contains no reference to Cangelosi’s status as mandate or agent for Spacie. In support of the motion for summary judgment, plaintiffs submitted copies of numerous leases involving other real estate transactions that were signed by Cangelosi and 121 specifically indicated that he was acting pursuant to Spacie’s power of attorney. Plaintiffs argued that these leases established that when Cangelosi signed as mandatary for Spacie, that fact was clearly reflected in the lease documents by references to Spacie’s name identifying her as lessor, by references to Cangelosi as her agent, and/or references to the recorded power of attorney that authorized Cange-losi to act as Spacie’s agent.

In further support of their motion, plaintiffs submitted Stewart’s deposition testimony and answers to interrogatories by Stewart and Panno. In Stewart’s deposition, he explained that he never spoke with Cangelosi; Gulf South’s representative handled all negotiations before the assignment. Stewart knew that someone else owned the property but understood that Cangelosi was its manager. Because no one else’s name was discussed, Stewart believed Cangelosi was in charge of the 12-Foot Strip. Stewart and Panno’s answers to interrogatories established that no abstract or title exam had been performed by them, or on their behalf, prior to the lease assignment. Stewart acknowledged that he first learned of Spacie’s interest in the 12-Foot Strip when the current lawsuit was filed.

Stewart and Panno supported their cross-motion for summary judgment by submitting Sandra’s deposition. It confirmed that after Spacie and Cangelosi divorced, Cangelosi had managed various properties, which he and Spacie had previously jointly owned, until his death. Sandra’s deposition testimony also established that prior to 1992, Cangelosi was the manager of the shopping center and the only person whom she was aware of who had entered into leases involving the University Shopping Center property.

| a8Stewart and Panno argue that Spacie’s power of attorney did not require Cangelo-si to sign in a representative capacity when he executed the 1987 lease. In support of that proposition, they cite only Martin Fuel Distributors, Inc. v. Trans Gulf Fuel, Inc., 496 So.2d 473 (La.App. 1st Cir.1986), writ denied, 498 So.2d 753 (La.1986), wherein this court found that an agent’s failure to indicate his representative capacity when signing a lease amendment on behalf of the principal did not invalidate the transaction.

In Martin Fuel, numerous real estate transactions occurred that were all recorded in the official records of Lafourche Parish. In 1933, L.E. Daviet & Company, Inc. sold a certain tract of land to L.E. Daviet and his wife, Alice Guidroz Daviet. In 1944, L.E. Daviet leased the property to Southport Petroleum Company of Delaware (“Southport”) for a term of 15 years. The lease was later amended to extend the lease term until 1974, and to grant South-port the right to renew the lease for an additional 15 years with the renewal ending in 1989. Southport’s successor, Esso Standard Oil Company (“Esso”), and L.E. Daviet signed the lease amendment. In 1959, Alice Guidroz Daviet and L.E. Daviet conveyed the property to L.E. Daviet Company, a partnership consisting of his children, Leslie L. Daviet, Claude E. Da-viet, Louis E. Daviet, Jr., and the Dominican Trust, a trust created by Alice Guidroz Daviet and L.E. Daviet. In 1965, the partnership members gave L.E. Daviet a power of attorney that authorized him to manage all of the property owned by them and specifically included “[t]he power to sign leases.”

In 1965, L.E. Daviet and Esso’s successor, Humble Oil and Refining Company, entered into a second amendment to the original lease agreement, which granted the lessee the right to renew the lease until 2004. When L.E. Daviet | ¡^executed this amendment, he did not sign in a representative capacity and did not attach a copy of the power of attorney to the transaction.

In 1971, L.E. Daviet Co. conveyed the property to Larry Dale Sauder and Donna M. Schutt Sauder. The act of sale stated that all or a portion of the property may be “subject of a lease by L.E. Daviet to [Esso], dated June 15, 1944” and “subject to additional agreements with [Esso] dated December 22, 1965 and on April 15, 1959.” In 1979, the Sauders sold the property to Sauder Inventions, Inc. This act of sale also referenced the original lease and the lease extensions.

In 1981, Martin Fuel Distributors, Inc (“Martin Fuel”) purchased the property from Sauder Inventions, Inc., with the act of sale referencing the 1971 act of sale from L.E. Daviet Co. to the Sauders. In August 1983, Exxon Corporation, as successor of Humble Oil and Refining Company, assigned and transferred all of its rights in the lease and its subsequent amendments to Trans Gulf Fuel,. Inc (“Trans Gulf’). Thereafter, Martin Fuel filed suit against Trans Gulf, seeking a declaratory judgment that the 1965 lease amendment, which granted the option to renew the lease until 2004, was null and void. The trial court determined that the 1965 lease amendment was invalid.

Trans Gulf appealed, urging that the lease amendment was valid because L.E. Daviet had acted as L.E. Daviet Company’s agent when he signed the 1965 lease amendment. Martin Fuel conceded that L.E. Daviet had actual authority to act on behalf of L.E. Daviet Company, but argued that because L.E. Daviet had not disclosed his agency status, the lease amendment was invalid. This court reversed the lower court, holding that L.E. Daviet’s action of signing the 1965 lease amendment | abound his principal to the agreement and that all subsequent purchasers, including Martin Fuel, purchased the property subject to the original lease and its amendments'.

The Martin Fuel court reasoned that a cursory examination of the public records revealed that: 1) the original lessee and its assignees had the option to renew the lease until 2004, 2) pursuant to a recorded power of attorney, L.E. Daviet had actual authority to execute the lease amendments on L.E. Daviet Company’s behalf, 8) the property had been transferred in 1971 and 1979 subject to the original lease and subsequent lease amendments, and 4) the lease was in effect after the initial 15-year term had expired. Based on these particular facts, the court held that Martin Fuel had knowledge of the recorded instruments and that the language of these documents “fairly put them on notice that the property was potentially burdened with a currently effective lease.” Thus, despite L.E. Daviet’s failure to indicate his representative capacity when signing the lease amendment on behalf of the partnership, this court found the lease amendment was valid.

After reviewing the unique facts of the present case, we find that the holding of Martin Fuel is not controlling. The public records revealed Spacie’s interest in the property when the 1987 lease was executed, but because Stewart and Panno did not conduct a title examination, they did not learn of Spacie’s ownership interest until after the lease assignment was executed. Additionally, Stewart and Panno introduced no evidence establishing that they or Gulf South was aware of or had relied on the power of attorney authorizing Can-gelosi to act on Spacie’s behalf. Even if they had, however, their reliance would have been unfounded due to a distinguishing factor in this case. In addition to holding the power of attorney to act on Spacie’s behalf, Cangelosi held his own property interest in the 12-Foot Strip; Cangelosi held a hsusufructuary interest that could be leased, alienated, or encumbered. In Martin Fuel, L.E. Daviet held no interest in the subject property at the time that he executed the challenged lease assignment and his actions were unquestionably on behalf of the partnership that he represented. In the present case, because both Spacie and Cangelosi had property interests in the 12-Foot Strip that could be separately leased, alienated, or encumbered, it was necessary for Cangelo-si to indicate that he was acting on Spa-cie’s behalf in order to lease her property interests as well as his own. If we were to hold otherwise, we would create considerable confusion and instability in our public records. The only way to prevent such negative results and to ensure that third parties will know with whom they are dealing is to require that such an individual designate the particular capacity in which he acts.

Based on the facts of this case, we conclude that an individual who holds an interest in property and also holds the capacity to act in a representative capacity for another’s interest in that property must designate the particular interest that he purports to effect. Otherwise, his signature affects only his individual interests. Because Cangelosi signed the lease agreement without referencing Spacie or indicating that he was acting on her behalf, or otherwise referencing Spacie’s interests in the property, we conclude his actions did not affect her interests in the property.

Thus, we find that the lease between Cangelosi and Gulf South Foods, Inc. affected only Cangelosi’s usufructuary interest, which was extinguished upon his death in July 1992. It follows that Stewart and Panno’s rights based on the lease assignment and Rally’s rights, as Stewart and Panno’s lessee, were also extinguished upon Cangelosi’s death.

| ^Accordingly, because we find that the defendants’ rights were extinguished upon Cangelosi’s death, they were not entitled to judgment as a matter of law. Thus, we reverse that portion of the trial court’s judgments that granted the defendants’ motions for summary judgment. Pursuant to our supervisory jurisdiction, we also reverse that portion of the trial court’s judgments that denied plaintiffs-appellants’ motion for summary judgment and dismissed their claims. We grant University House’s motion for summary judgment in part by declaring that the 12-Foot Strip is free from any leases in favor of defendants Stewart, Panno, and Rally’s. We further declare that defendants do not have a right to use or permit others to use the 12-Foot Strip. As explained above, we do not reach the issues of whether University House is entitled to: 1) injunctive relief prohibiting the defendants from using or trespassing on the parking lot and the 12-Foot Strip, and 2) declaratory relief addressing defendants’ use of other portions of the parking lot. Accordingly, we remand this matter for further proceedings on those issues and for consideration of the defendants’ third-party demands.

D. ANSWER TO APPEAL

Stewart and Panno contend that this appeal is frivolous and that they are entitled to damages as asserted in their answer to the appeal. This contention is unfounded since we have found the appeal has merit. Rivers v. Groth Corp., 95-2509, p. 3 (La.App. 1st Cir.9/27/96), 680 So.2d 762, 763.

III. CONCLUSION

For the above reasons, we deny Stewart and Panno’s peremptory exceptions raising the objections of no right of action and res judicata. We reverse the trial court’s judgments. Pursuant to our supervisory jurisdiction, we also consider | ?,7plaintiffs’ appeal of the denial of its motion for summary judgment as an application for supervisory writs. Based on our determination that defendants-appellees’ rights under the 1987 lease were extinguished upon Cangelosi’s death in 1992, we grant plaintiffs’ motion for summary judgment in part by declaring that the 12-Foot Strip is no longer burdened by the 1987 lease or its assignment. As to University House’s claims for injunctive relief and declaratory relief addressing defendants’ use of other portions of the parking lot, we deny the application for supervisory writs and remand this matter for further proceedings.

EXCEPTIONS RAISING THE OBJECTIONS OF NO RIGHT OF ACTION AND RES JUDICATA DENIED; JUDGMENTS REVERSED; WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN PART; JUDGMENT RENDERED AND MATTER REMANDED FOR FURTHER PROCEEDINGS.

      . Although Five N Company, L.L.C. initially filed this suit, it later merged into University Square, which was later substituted in the trial court proceedings as proper party plaintiff.

      . Spacie's leasehold interest was subsequently transferred to University Shopping Center, L.L.C., which also later merged into University Square, L.L.C.

      . In April 1994, the application to affect the compromise agreement was filed in "In The Matter of the Succession of Theodore Francis Cangelosi a/k/a Theodore F. Cangelosi a/li/a Theo F. Cangelosi,” Probate No. 57,089, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana.

      . Plaintiffs also named Washington State Bank, who allegedly held a mortgage on the Corner Parcel, as a defendant. All claims against Washington State Bank and the cross-claim that it filed were later dismissed with prejudice. Washington State Bank is not involved in this appeal.

      . The lease was actually signed by Rally's Inc., who was the predecessor of Rally’s Hamburgers, Inc.

        . Defendants do not contend that either Five N Company or University Square has leased the 12-Foot Strip to Gulf South Foods, Stewart, or Panno.
      The trial court denied earlier motions for summary judgment filed by both plaintiffs and Stewart and Panno.

      . Stewart and Panno also filed an exception of no cause of action that was denied and that is not pertinent to this appeal.

      .Spacie explained that the shopping center property was no longer subject to a lease due to Spacie's transfer of her leasehold interests to University Shopping Center and due to the merger of Five N Company and University Shopping Center into University Square. At that time, Spacie owned a large interest in University Square.

      . We consider this peremptory exception filed for the first time in this court because the parties do not dispute any of the facts that form the grounds of the exception and it was pleaded prior to a submission of the case for a decision. See La. C.C.P. art. 2163; Parish Nat. Bank v. Ott, 02-1562, p. 2 (La.2/25/03), 841 So.2d 749. Although a plaintiff may demand that a case be remanded to the trial court for a trial of an exception, University House has not made such a demand and argues that the exception should be denied.

      . Spacie had transferred her leasehold interests to University Shopping Center, and Five N Company and University Shopping Center had merged into University Square prior to the time that the October 31, 2001 judgments were signed. The order of substitution substituted University Square in lieu of Five N Company but did not address Sandra, as curator for Spacie. Thus, even though Spacie no longer owned any.interest in the subject property, Sandra remained a plaintiff in the suit.

      . Although Stewart and Panno did not contest any of the underlying facts that support the substitution of University House as the proper-party plaintiff, they opposed the substitution on the basis that plaintiff's claim to the leasehold rights had been abandoned. This opposition is baseless and appears to be without purpose other than to delay this court’s resolution of the merits of this case.

      . In September 24, 2001 oral reasons for judgment, the trial court stated, "I am going to address the cross-motions for summary judgment and forego the exceptions of res judicata and no right of action at this time.”

      . Stewart and Panno also argue that because University Square and Sandra knew of the 1987 lease before the compromise agreement was executed, University House should be es-topped from pursuing this litigation. Equitable estoppel is defined as "the effect of the voluntary conduct of a party by which he is barred from asserting rights or defenses against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. The three elements of estoppel are: (1) a representation by action or word; (2) justifiable reliance on the representation; and (3) a change in position to one's detriment because of the reliance.” Murphy v. Gilsbar, Inc., 02-0205, p. 4 (La.App. 1st Cir. 12/31/02), 834 So.2d 669, 672. We find no merit in this argument because Stewart and Panno made no showing that any of their actions were based on any reliance on representations made by Sandra, Spacie, or University House.

      . Because the present suit was filed and the compromise agreement was entered into after the 1990 amendment of La. R.S. 13:4231, the parties do not dispute its applicability.

      . In support of its holding, the Ditch court cited two cases that also involved successors in title, Scurlock Oil Company v. Getty Oil Company, 294 So.2d 810 (La.1974) and Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965). In Quinette, 176 So.2d at 405, the court explained that "[ujnder the civil law doctrine, the ayants cause, or successors, of the parties of record are considered parties to the demand when they acquire title after the institution of the original suit in which judgment is rendered.” (Footnote omitted).

      . Because we find that Stewart and Panno failed to establish the "identity of the parties” element of their res judicata claim, we preter-mit any analysis regarding the scope of the compromise agreement.

      . La. C.C. art. 628 provides in part, "Upon termination of a usufruct of nonconsumables ... full ownership is restored. The usufructu-ary or his heirs are bound to deliver the property to the owner ...."

      . Book III, Title XV, of the Louisiana Civil Code of 1870 (of Mandate), consisting of Articles 2985 to 3034, was revised, amended and re-enacted by Accts 1997, No. 261, § 1, effective Januaiy 1, 1998, to consist of Articles 2985 to 3032.


source: Caselaw Access Project

author: 11 MARC T. AMY, Judge.

license: Public Domain

text:
    LAMOCO, INC., et al. v. Howard H. HUGHES.
    No. 02-1498.
    Court of Appeal of Louisiana, Third Circuit.
    July 9, 2003.
    Rehearing Denied Aug. 13, 2003.

      Herman E. Garner, Jr., Larry C. Hebert, Ottinger, Hebert, L.L.C., Lafayette, LA, for Defendant/Appellee, Howard H. Hughes.
    John W. Grant, Lafayette, LA, for Plaintiff/Appellant, Lamoco, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   11 MARC T. AMY, Judge.

The plaintiffs brought an action seeking declaratory relief decreeing that a mineral royalty remained in full force and effect. After answering the plaintiffs’ petition with a reciprocal reconventional demand, the defendant filed a motion for summary judgment, and the trial court granted his motion. The plaintiffs appealed. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

Howard H. Hughes owns certain property and its mineral rights in Jefferson Davis Parish. On July 18, 1996, Mr. Hughes signed a mineral lease of this property in favor of Texas Meridian Resources Exploration, Inc. It states, in part:

This lease shall be for a term of FOUR (k) years and SIX (6) months from the date hereof (called “primary term”) and so long thereafter as oil, gas or some other mineral is being produced or drilling operations are conducted either on this land or on acreage pooled therewith[.]

la(Footnote added.) On July 30, 1998, Mr. Hughes signed a document, entitled “Royalty Deed,” in favor Lamoco, Inc., covering the same property as the mineral lease. But, there is no language in this document connecting it with the mineral lease. Nonetheless, the Royalty Deed includes the following provision:

This conveyance shall be for a period of Four (IQ years & Six (6) months from July 18, 1996, and as long thereafter as oil, gas or other minerals are produced from said lands, or from lands with which said lands are pooled or unitized, and also as long thereafter as drilling or reworking operations are being conducted on said lands, or on lands pooled or unitized therewith, without more than 90 days cessation of operations, in an effort to produce oil, gas or other minerals, and if said operations result in the production of said minerals, then for as long thereafter as oil, gas or other minerals are produced from said lands, or from lands pooled or unitized therewith. A shut-in gas well shall be considered as a producing well and shall perpetuate the term of this conveyance.

A document attached to the affidavit of Randle Myers indicates that drilling operations were commenced on the leased premises on December 17, 2000. This document also indicates that, since commencement, those drilling operations have continued to the current date without cessation for a period in excess of ninety days. However, one of Lamoco’s responses to Mr. Hughes’ request for admissions provides that there was no mineral production “during the time period of four (4) years and six (6) months from July 18, 1996 through January 18, 2001.”

On October 21, 2001, Lamoco brought an action seeking declaratory relief decreeing that the Royalty Deed remained in full force and effect. Mr. Hughes responded by denying Lamoco’s allegations and filing a reconventional demand | ¡¡seeking declaratory relief decreeing that the Royal Deed had expired. On April 24, 2002, Mr. Hughes filed a motion for summary judgment. Lamoco did not file a competing motion for summary judgment. After the trial court granted Mr. Hughes’ motion, Lamoco appealed, alleging the following assignment of error: “THE TRIAL COURT ERRED IN GRANTING [MR. HUGHES’] MOTION FOR SUMMARY JUDGMENT AND IN EFFECT FINDING THAT THE LANGUAGE OF THE ROYALTY DEED IN QUESTION EFFECTED A REDUCTION IN THE PRESCRIPTIVE PERIOD APPLICABLE TO THIS ROYALTY DEED.”

Discussion

On appeal, the parties generally assert the same arguments presented to the trial court. Mr. Hughes alleges that the language in the provision of the Royalty Deed at issue was an express reduction of the ten-year prescriptive period of nonuse applicable to royalty interests. He further contends that, since a mineral royalty was at issue, the drilling operations without production were insufficient to interrupt the prescriptive period. As such, Mr. Hughes claims that the Royalty Deed has prescribed because there was no mineral production during the time period given by the provision. On the other hand, Lamoco points out that the ten-year prescriptive period of nonuse in the Mineral Code is always applicable, unless another period is specifically contracted for, and Lamoco argues that no such period was contracted for. Rather, Lamoco maintains that the parties contracted for an initial time period for the commencement of operations. Since it began drilling operations prior to January 18, 2001, Lamoco claims that the Royalty Deed remains in full force and effect.

14An appellate court will apply the de novo standard of review when reviewing a summary judgment and will use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1186 (La.11/28/01), 800 So.2d 783. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to [a] judgment as a matter of law.” La.Code Civ.P. art. 966(B). In this case, there is no genuine issue of material fact. The parties only dispute the legal interpretation of the provisions of the Royalty Deed.

“A mineral royalty is the right to participate in production of minerals from land owned by another or land subject to a mineral servitude owned by another.” La. R.S. 31:80. La.R.S. 31:85 provides the following means to extinguish a mineral royalty:

(1) prescription resulting from non-use for ten years;
(2) confusion with the title out of which it was created;
(3) renunciation of the royalty right on the part of him to whom it is due, or the express remission of his right;
(4) expiration of the time for which the royalty right was granted or happening of the dissolving condition attached to the mineral royalty; or
(5) extinction of the right of him who established the mineral royalty, except that the extinction of a mineral servitude by inheritance or by any act of the servitude owner does not extinguish a royalty burdening the servitude unless the royalty owner is a party to the act or otherwise consents expressly and in writing to become bound by it.

(Emphasis added.) When crafting a mineral royalty, “[u]nless expressly or impliedly prohibited from doing so, individuals may renounce or modify what is established in their favor by the provisions of [the Mineral] Code if the renunciation or modification Rdoes not affect the rights of others and is not contrary to the public good.” La.R.S. 31:3. For example, “[p]arties may either fix the term of a mineral [royalty] or shorten the applicable period of prescription of nonuse or both.” La. R.S. 31:74 (emphasis added); see also La. R.S. 31:103. In the absence of a contractual provision reducing the prescriptive period, the prescriptive period of nonuse of a mineral royalty shall be ten years. La. R.S. 31:16. "When the parties attempt to stipulate to a prescriptive period greater than ten years, the period is reduced to ten years by operation of law. La.R.S. 31:74. The prescriptive period of nonuse can only be interrupted by production of any mineral covered by the act creating the royalty. La.R.S. 31:87. Yet, although a mineral royalty -will always be subject to the prescriptive period of nonuse, our review of the Mineral Code does not reveal any legal principle that would prohibit the holder of a mineral royalty from extending the term through the act of drilling without production. Thus, our Mineral Code recognizes that the term of a mineral royalty and the prescriptive period of nonuse are distinctly different concepts.

In light of these legal principles, we will first determine whether the provision at issue constitutes an express reduction of the prescriptive period of nonuse, the term of the mineral royalty or both. Initially, we note that the word “prescription,” or any derivative thereof, is never used within the provision or throughout the entire Royalty Deed. While- the first sentence of the provision only uses the word “conveyance” when addressing the four-year, six-month period, the last sentence of the provision refers to the four-year, six-month period as the “term of this conveyance.” We additionally note that the provision provides methods other than production of minerals to perpetuate the conveyance. In sum, our view is that the Royalty Deed does not present a reduction of the prescriptive period of nonuse, and we find that the provision at issue only constitutes the term of a mineral royalty.

1 ¡¡Further, the Royalty Deed provides that the term of the mineral royalty can be perpetuated beyond the four-year, six-month period, “as long thereafter as drilling or reworking operations are being conducted on said lands, or on lands pooled or unitized therewith, without more than 90 days cessation of operations, in an effort to produce oil, gas or other minerals.” The document attached to the affidavit of Ran-dle Myers states that drilling operations began on the leased premises prior to the expiration of the four-year, six-month period and that these drilling operations have continued to the current date without cessation in excess of ninety days. However, the Royalty Deed is still subject to the ten-year prescriptive period of nonuse. Lamo-co did admit that there was no mineral production “during the time period of four (4) years and six (6) months from July 18, 1996 through January 18, 2001.” Since the record indicates that less than ten years have passed since the creation of the mineral royalty, we find that the Royalty Deed has not prescribed. See La.R.S. 31:86.

Accordingly, we conclude that Mr. Hughes failed to show that he was entitled to a judgment as a matter of law, and, in turn, the trial court erred when it granted his motion for summary judgment.

DECREE

For the foregoing reasons, we reverse the judgment of the trial court granting the motion for summary judgment of the defendant in its entirety and remand this matter for further proceedings. All costs of this appeal are assigned to the defendant-appellee, Howard H. Hughes.

REVERSED AND REMANDED.

      . The mineral lease further provides:
      4. After beginning operations on the lands or on acreage pooled therewith (or with any part thereof) and prior to the discovery and production of minerals in paying quantities, Lessee may maintain the rights granted during and after the primary term by continuing such operations without the lapse of more than ninety (90) days between abandonment of work on one well and beginning operations for drilling another; and during the primary terms such operations may be discontinued and the rights granted maintained by resuming rental payments, by paying within ninety (90) days from the discontinuance of operations (regardless of the fixed rental paying date) the proportion of the fixed yearly rental that the number of days between the end of said ninety (90) days and the next ensuing rental paying date bears to the twelve months’ period; but, if said ninety (90) days should expire during any year for which rentals have been paid, no further rental shall be due until the next fixed rental paying date.
      6. After the discovery and production of oil, gas or any other mineral in paying quantities, either on the leased premises or on lands pooled therewith, the rights granted shall be maintained in effect during and after the primary term and without the payment of the rentals hereinabove provided for so long as oil, gas or some other mineral is being produced in paying quantities, or Lessee is carrying on operations with reasonable diligence looking to the production thereof. It is provided, however, that if, after the discovery and production of oil, gas or other minerals in paying quantities, the production thereof should cease from any cause this lease shall terminate unless Lessee resumes or restores such production, or commences additional drilling, reworking or mining operations within ninety (90) days thereafter and continues such operations without the lapse of more than ninety (90) days between abandonment of work on one well and commencement of reworking operations or operations for the drilling of another, in an effort to restore production of oil, gas or other minerals, or (if during the primary term) resumes the payment of rentals in the manner herein-above provided for in connection with the abandonment of wells drilled.

      . In addition to Lamoco, the petition includes many other named plaintiffs. The petition explains that "subsequent to [Lamoco's] acquisition of the Royalty Interests it made conveyances of undivided interests in the Royalty Interests such that those parties identified as Petitioners in these proceedings are the current holders and owners of the Royalty Interests.”

      . The record indicates that Lamoco filed a motion for a new trial, which the trial court ultimately denied, prior to bringing the instant appeal.


author: JjSAUNDERS, Judge.

text:
    Richarda D. MESH v. Beth LUNDY, et al.
    No. CW 03-0333.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 2003.

      John Foster DeRosier, DeRosier & Barrett, Lake Charles, LA, for Plaintiff/Respondent, Richarda D. Mesh.
    Robert C. McCorquodale, Lake Charles, LA, for Defendant/Applicant, Beth Lundy, Sheriff.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   JjSAUNDERS, Judge.

Defendant, the Calcasieu Parish Sheriffs Office, seeks supervisory writs from a judgment of the Fourteenth Judicial District Court, denying its motion to strike and exception of no cause of action.

STATEMENT OF THE CASE

Billy Jackson (“Jackson”) was incarcerated at the Calcasieu Parish Correctional Center. On September 29, 2001, he escaped from the facility and hid in an unlocked house on 18th Street in Lake Charles. Later that day, Richarda Mesh (“Mesh”) and Johnette Duhon (“Duhon”) entered this same house on 18th Street to paint the house. When they entered the house, they encountered Jackson who forced them upstairs at knife point. Jackson ordered Mesh to tie up Duhon, who was then forced into a closet. Jackson raped Mesh, then stole her truck and cellular phone and left the house. Jackson used Mesh’s truck to get to Houston, where he was eventually apprehended.

Mesh filed a petition seeking recovery of damages for the harm inflicted upon her by Jackson. In response to the petition, the Calcasieu Parish Sheriffs Office filed an exception of no cause of action and a motion to strike. On December 16, 2002, a hearing was held before Judge Godwin. At the conclusion of the hearing, the trial court denied the exception and motion. Defendant seeks review of the trial court’s ruling by supervisory writ application.

DISCUSSION

Mesh argues the defendant can be held liable for the rape because it was committed during the process of Jackson’s escape. The defendant, on the other hand, | ^contends it cannot be held liable for the rape because it was not an integral part of the escape. In denying defendant’s exception and motion, the trial court stated:

I’m really — after listening to everything that has been said — and I am acknowledging the language in the Green case about “further causal relationship,” but then there are these later cases that have been cited involving a murder and other acts that couldn’t be seen as anything that was required or functionally aided the act of escaping.
And my best take on it, all I can do is give you my better opinion on it, because there will be a whole bunch of other judges look at this before this thing is over with — before this case is concluded. But when I see “during or an integral part of the process of escaping,” I see that as alternatives. And one alternative is temporal. I think one alternative if temporal and the other one is functional. And I do liken it — Mr. DeRosier has analogized or mentioned workmen’s comp; but it has passed through my mind, too, thinking about the hundreds of cases on arising out of or in the course and scope of employment. And one of those can been seen as temporal and the other one as functional. Except in a workers’ comp, it says “and” instead of “or.”
So, here, I conclude on the pleadings that this guy wasn’t through escaping. He — he hadn’t — he wasn’t — hadn’t completed his escape as these cases define “escape,” which I think means more than just getting outside the fence. The guy has got to get to where he is going — because in that other case I quoted earlier, they use the language about somebody who has “already escaped”; and then the exceptional cases in the cases that were cited about the 18-day gap where it was a part of the process. But I think — I conclude in this case on a — and on a broad reading of the petition that it is a cause of action stated under the concept that as of the time of the rape occurred it was still during— temporally still during the escape as evidenced by the fact that under the allegations he continued and stole a truck to keep on going until he apparently, according to the petition, finally — finally settled in Houston.
So, the exception is overruled. And the motion to strike is really moot, and I deny the motion to strike.

Defendant cites Green v. State, Department of Institutions, 91 So.2d 153, 155 13(La.App. 1 Cir.1956) for the following language:

An institution’s duty to restrain a convicted criminal is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape.... There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received.... For the breach of the duty to be a proximate cause of the injury for which recovery is sought, the injury received should be one for the prevention of which the duty exists.

In Green, a 15 year old escaped and then stole a car which subsequently struck plaintiffs. In finding the State was not responsible for plaintiffs’ injuries, the court in Green stated:

We do not believe that the negligent operation of a car then unavailable, to have been the natural and probable and reasonably foreseeable consequences of the initially negligent acts or omissions of State employees; the theft and negligent use being so remote and separated in time and by intervening circumstances from the initial negligence, which allegedly permitted the prisoner to escape his confinement.

Id. at 155.

Defendant asserts Green requires more than a “but for” test. It suggests Mesh must demonstrate a causal connection between the duty owed and the event, i.e., that the damage was part and parcel of the escape. As to the detaining of Mesh and her companion and the theft of the truck and cellular phone, defendant asserts these are arguably linked to the escape. As to the rape, however, defendant asserts it was not part and parcel of the escape.

Defendant also relies on LeBlanc v. State, Department of Corrections, 393 So.2d 125 (La.App. 1 Cir.1980), writ denied, 394 So.2d 1235 (La.1980). In LeBlanc, John Williams had been released from the Louisiana Training Institute and placed in the Community Corrections and Rehabilitation Center, Inc. During his tenure at the rehabilitation center, Williams robbed, beat, and raped the plaintiff. Plaintiff sued the State through the Department of Corrections and the rehabilitation center. The State’s liability was at issue on appeal. In finding no responsibility on the state’s part, the court in Le-Blanc stated the following on rehearing:

On original hearing we held that Williams’ “escape” was purely technical and not caused by the State’s negligence. We now observe that even if Williams’ escape were found to be caused by the State’s negligence, a condition contrary to fact, Mrs. LeBlane could not recover.
The assault on Mrs. LeBlane was not a part of the process of escape. Rather, it was a subsequent and spontaneous act of Williams’ related in no way to his inmate status. Thus, negligence by the State is irrelevant because the circumstances of Williams’ attack precludes recovery by the plaintiff from the State.
Some problems have arisen from the case of Webb v. State, through Department of Institutions, supra. In Webb, an inmate escaped from Angola and some twelve hours later went into the Webb home where he shot the plaintiff. The trial court determined that the inmate was “still in the process of attempting to make good his escape,” and on that basis an award of $15,000 was affirmed. What has happened since Webb is that a plaintiffs emphasis has often been placed on the proximity in time and space of an escaped inmate’s offense to the point of his escape rather than on the proper question of whether the offense, regardless of its time and location, actually was an integral part of the process of escaping, (citations omitted).
John Williams had not “escaped” when he attacked Mrs. LeBlane, and, even if he had, his escape was complete when he left the grounds of the Louisiana Training Institute. There were no law enforcement authorities pursuing him. Any acts of Williams, including the vicious attack on plaintiff, were his sole responsibility.

Id. at 127-28.

IsAnother case cited by defendant is Wilson v. State, Department of Public Safety & Corrections, 576 So.2d 490 (La.1991), in which plaintiffs were robbed by Robert Downs as they arrived home to their trailer located several miles from the prison where Downs had been confined. Downs stole clothing, money, food, weapons, and a truck from the plaintiffs. In addressing whether the state was responsible for the plaintiffs’ damages, the court in Wilson stated:

Custodians of prisoners have a duty to manage the affairs of the prison so as not to create an unreasonable risk of harm to the public. This duty does not encompass all harm inflicted by escapees. Although prison authorities have a duty to prevent inmates from escaping, that duty is intended to protect persons from being harmed by escaping inmates while they are in the process of escaping. The duty is not intended to protect persons from harm inflicted by inmates who have already escaped and who subsequently commit tortious acts in the furtherance of their own pursuits. The state is not the insurer of the safety of its citizens. To recover against a custodian, a plaintiff must prove that the custodian was negligent in the management of the prison, that this negligence facilitated the escape, that the actions of the escapee caused the harm complained of, and that the risk of harm encountered by the particular plaintiff falls within the scope of the duty owed by the custodian, (citations omitted).
In resolving the scope of the duty issue, improper emphasis has occasionally been placed on foreseeability or on the proximity of time and distance between the escape and the escapee’s offense that caused the injury to his victim. The proper question is whether the offense occurred during, or as an integral part of, the process of escaping. (citations omitted) (emphasis added).
The court of appeal, while acknowledging the proper legal precepts, held, nonetheless, that the trial court erred in finding the criminal acts committed by Downs thirteen days after his escape were an integral part of the process of escaping. It determined that “[a]s a matter of policy, the state’s liability should not extend to acts of violence committed by escaped convicts thirteen days after the escape from confinement.” Wilson, 563 So.2d [1251], 1254 [(La.App. 1st Cir.1990)] (citation omitted). The court | (¡concluded the risk that an escaped convict would harm Wilson and Hilliard thirteen days after the escape is “simply too remote to fall within the scope of the custodian’s duty to prevent inmates from escaping.” Id.
We disagree with the conclusion reached by the court of appeal. The record fully supports the trial court’s finding that Downs was dangerous and would be seeking food, clothing, weapons, and transportation to make his way out of Louisiana. Although there is some dispute as to whether it is eight or fifteen miles from the penitentiary, Hilli-ard’s residence is within the normal area of containment set up by prison personnel in the event of a prison break (i.e., the search perimeter). At the time of the incident, the search for Downs and the other two inmates had not been formally abandoned, tending to indicate the defendant’s suspicion Downs remained within the search perimeter. Under these circumstances, we have no difficulty concluding the theft of Wilson’s truck was a necessary and integral component of the escape process. The truck enabled Downs to pass the search zone established by the authorities and greatly facilitated his successful flight from the state. The stolen food, clothing and money further aided in the process of the escape.
We emphasize the primary focus of the inquiry is on the question of whether the acts giving rise to the suit occurred during, or as an integral part of, the process of escaping. The operative word is “process,” since there is no bright-line point of delineation which will satisfactorily assist a court in making the appropriate duty-risk analysis. To focus exclusively on the time expiring after the inmate’s exit from the prison grounds to the point where he victimizes a plaintiff leads to arbitrary cut-off points which serve neither the interests of plaintiffs nor those of the State. The same may be said of the distance involved. If an act committed one hour and one mile from the point of departure is compensa-ble and one committed one month and one hundred miles from the same point is not, we are left without means to draw the line except in some arbitrary fashion unsatisfactory to all concerned. This is not to say considering these factors is impermissible. Rather, they are but two factors among many, which will vary with the circumstances of each case, that should be considered in determining whether the acts for which the plaintiff seeks compensation were committed during, or as an integral part of, the process of escaping, (emphasis added).

|7Id. at 498-94.

Defendant acknowledges the similarity of the facts of Wilson to the instant case, however, asserts Wilson is distinguishable because all of the crimes committed by the escapee in Wilson were directly related to the process of escaping. For the reasons stated below, we disagree.

In opposition to the writ application, Mesh cites Marceaux v. Gibbs, 96-2839 (La.9/9/97), 699 So.2d 1065. In Marceaux, Denny Gibbs was an inmate at the Acadia Parish Detention Center. Gibbs stole the work vehicle of his supervisor and eventually collided with a vehicle in which Mar-ceaux was riding as a guest passenger. The court in Marceaux stated the question was whether the offense occurred during or as an integral part of the escape. In answering the question in the affirmative, the court in Marceaux stated:

Likewise, the Town of Iota’s vehicle used by Gibbs in his escape proved to be a necessary component and facilitated his flight from the authorities. Because Keith Marceaux’s damages resulted from Gibbs’ escape, we affirmatively answer the question of whether the risk of plaintiffs injuries was within the scope of duty Gibbs’ custodians owed to the general public.

Id. at 1070. Mesh places emphasis on the words “during or,” and suggests acts for which the defendant can be held liable may either occur during the escape or be an integral part of the escape.

Mesh acknowledges the Green decision, but points out the first circuit also decided Webb v. State, Department of Institutions, 91 So.2d 156 (La.App. 1 Cir.1957). In Webb, an inmate escaped from Angola with a gun and shot the plaintiff in her home, which was in the vicinity of the prison. In finding liability on the part of the state, the first circuit stated:

Were it not for the State’s negligence, this injury would not have happened. It is definitely foreseeable that convicts | ^escaping through negligence of the State would harm the people in the Anogla area. This injury was directly within the risk area created by the negligence of the State and its employees.

Id. at 162.

Finally, we address Brown v. American Druggists’ Insurance Co., 476 So.2d 881 (La.App. 2 Cir.1985), writ denied, 479 So.2d 365 (La.1985), and writ denied, 479 So.2d 366 (La.1985). In Broum, escapees hid in a shed until the plaintiffs’ parents turned out the light. The escapees then broke into the home, stole cash, car keys, etc., and killed the plaintiffs’ parents. The court in Broum stated it must determine whether the murders were an integral part of the escape. In addressing this issue, the court held:

In order to have any hope of completing their escape, it was essential that Wingo and Glass procure transportation and cash. It was in connection with acquiring these essentials that Glass murdered the Browns, only a few hours following departure from jail and only a few miles from the place of incarceration. Under those circumstances, we conclude that the negligence of the deputies (imputable to their employer, the sheriff) led to the escape and then to the murder of the Browns. In other words, protection of the Browns from the consequences of the escape was within the duty owed by the sheriff.

Id., 476 So.2d at 882.

As indicated by case law provided above, the key inquiry is whether the offense occurred during, or as an integral part of, the escape. While the defendant is correct in its assertion that it has no duty to protect the general public from all harms that may be inflicted by an escaped prisoner, the law is clear that custodians of prisoners do have a duty to prevent prisoners from escaping. That duty is at least partially intended to protect the general public from harms that may be inflicted by inmates while they are in the process of escaping.

| a Jackson encountered Mesh and Duhon on the day of his escape, while hiding in a house relatively close to Calcasieu Parish Correctional Center. Additionally, Jackson stole Mesh’s cell phone and truck for the specific purpose of furthering his escape from the correctional center. The detaining of Mesh and Duhon, as well as the alleged rape of Mesh, occurred in the process of Jackson stealing Mesh’s truck, an act specifically in furtherance of Jackson’s then ongoing escape from the correctional facility. The defendant argues that the rape itself did not directly further Jackson’s escape, and, therefore, it is not liable to Mesh for her attack. We find this argument to be without merit.

Unlike the case law cited by the defendant, the injuries and offenses suffered by Ms. Mesh clearly occurred while Jackson was further facilitating his escape, and are precisely the type of harm that falls within the scope of the duty owed to the public by a custodian of prisoners. We find the circumstances in the present matter to be similar to those in Brown. The murders in Brown occurred during the process of the escapees acquiring transportation and cash. Similarly, the rape in the instant case occurred during the process of Jackson acquiring transportation by stealing Mesh’s truck. Therefore, we find the trial court correctly denied defendant’s exception of no cause of action and motion to strike with respect to the alleged rape of plaintiff by Jackson. Accordingly, the writ is denied. All costs of this writ are assigned to the defendant.

WRIT DENIED.