author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Richard Wayne BOOKER, Jr., Appellant.
    No. 46,256-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Joseph W. Bailey, for Appellant.
    Richard Z. Johnson, Jr., District Attorney, Ron C. Stamps, Britney A. Green, Assistant District Attorneys, for Appellee.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

[ [ This criminal appeal arises from the Forty-Second Judicial District Court, Parish of DeSoto, State of Louisiana. The defendant, Richard Wayne Booker, Jr. (“Booker”), was convicted of distribution of a Schedule I controlled dangerous substance, namely marijuana, a violation of La. R.S. 40:966(A)(1). He was sentenced to 5 years at hard labor. This appeal ensued. For the following reasons, we affirm Booker’s conviction and sentence.

Facts

After receiving information through a citizen’s complaint of drug sales in Logans-port, Louisiana, which is located in the western part of DeSoto Parish, the DeSoto Parish Sheriffs Office (“DPSO”) in conjunction with the Tri-Parish Narcotics Task Force (“task force”) initiated an investigation. DPSO enlisted a civilian agent, Dewayne Hunter, to assist in an undercover controlled purchase of marijuana from Booker. Hunter was at this time on probation after having been convicted of distributing marijuana himself. DPSO and the task force frequently utilize individuals convicted of drug charges to assist in drug investigations.

On February 12, 2009, Cpl. Raymond Sharrow and Sgt. Keith Banta of the DPSO and the task force met with Hunter and explained to him how the operation would take place. They also planted audio and video recording devices in Hunter’s vehicle to monitor and record the investigation. Additionally, they searched Hunter’s person and vehicle to ensure there were no drugs, money, or weapons that could potentially corrupt the investigation. The only thing found was $15 in cash which was |2held by the officers for the duration of the investigation. Hunter was then given $40 cash of task force funds to use to purchase the marijuana from Booker. Hunter had previously arranged to meet Booker at his home in order to purchase $40 worth of marijuana. Hunter, discreetly followed by the two officers in a separate unmarked vehicle, drove to Booker’s home. However, after knocking on the front door, Hunter discovered Booker was not home. He then attempted to contact Booker on his cell phone and decided to go to another location where he predicted Booker would be in order to make the purchase. Hunter relayed this information to Cpl. Sharrow and Sgt. Banta and proceeded to the new location, while once again being tailed by the officers.

The officers watched the transaction occur from the unmarked truck parked at a fire station approximately 100 yards from the location where Hunter was to meet Booker. As they watched, they saw Booker approach Hunter, who remained seated in his vehicle. After a few moments, the officers saw Booker retreat from Hunter’s vehicle while Hunter drove off from the area. The officers testified they recognized Booker as the person who approached Hunter’s vehicle because they were familiar with him from prior police work. The video camera in Hunter’s vehicle, pointed at the ceiling, did not show the face of the person who approached the vehicle. The audio portion of the transaction was recorded, although only parts of it are audible. On the video, Hunter is visible taking a plastic baggie and smelling it before eventually driving off. Hunter testified at trial that Booker sold him marijuana during the police investigation that day.

13After the transaction, Hunter immediately met with the officers at an undisclosed location. While driving to that location he verbalized that he was putting the marijuana into the evidence bag. He next stated he was putting the bag into the center console of the vehicle. Once again, the video did not capture his actions, but the audio captured his explanation of what he was doing at the time, followed by the sound of the console closing. After arriving at the new location, Sgt. Banta retrieved a plastic baggie containing green vegetable matter from the center console of Hunter’s vehicle. He also retrieved an empty evidence bag from the same console. The officer placed the baggie of vegetable matter into the evidence bag. He then returned Hunter’s $15 to him. The video surveillance in the vehicle captured all of these events. The substance in the baggie later tested positive as marijuana. Subsequently, Booker was charged with distribution of marijuana. He was tried by a jury, convicted as charged, and sentenced to imprisonment for 5 years. This appeal ensued.

Law and Discussion

In this appeal, Booker asserts two assignments of error. First, he asserts the evidence presented was insufficient to sustain his conviction. Second, he asserts he was denied his right to effective assistance of counsel.

Insufficiency of the Evidence

Booker first asserts the evidence presented was insufficient to sustain his conviction. Specifically, he claims that while an encounter between him and Hunter was observed by the officers, no drug transaction was observed |4or caught on video surveillance. He also claims Hunter testified against him solely in the hope of having his own offenses dismissed by the state.

The standard of appellate review for sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 807, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct | ^evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, unit denied, 2009-0372 (La.11/06/09), 21 So.3d 299. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.04/09/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Distribution of marijuana is defined in La. R.S. 40:966(A)(1), which provides:

A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I.

This assignment of error is essentially an attack on Hunter’s credibility as well as an attack on the circumstantial evidence presented at trial. This court is not in a position to assess the credibility of Hunter. Instead, we defer to the trial court’s assessment and examine whether it was a reasonable one. We acknowledge that the fact that Hunter is a convicted felon goes against his credibility; however, Hunter’s testimony was obviously accepted by the jury, the factfinder in this case. Additionally, | ^Hunter’s testimony was corroborated by what the officers testified they witnessed, what was depicted in the surveillance audio and video, and the circumstantial evidence.

Hunter’s person and vehicle were searched by the investigating officers prior to the investigation. The officers testified that after this initial search the only money Hunter possessed was $40 cash, provided by the task force. At this time, his person and vehicle were also free of drugs. After the encounter between the two men and the subsequent search, Hunter no longer possessed the $40 in cash, but instead possessed a baggie of marijuana in the center console of his vehicle. The officers tailed Hunter the entire time and he neither deviated from the path of the investigation nor made a stop other than to meet with Booker. Further, there is an audio recording depicting a drug transaction involving Hunter in his vehicle. Booker’s face was not shown on the video; however, the officers only saw one person approach Hunter’s vehicle — Booker.

The jury came to the conclusion that Booker distributed marijuana. After viewing the totality of the evidence, a rational trier of fact could have concluded beyond a reasonable doubt that the evidence presented by the state was sufficient to find the defendant guilty of distribution of marijuana; thus, Booker’s. argument to the contrary is without merit.

Ineffective Assistance of Counsel

In his second assignment of error Booker asserts he was denied his right to effective assistance of counsel due to his counsel’s failure to: (1) object to the admission into evidence of the marijuana, and (2) object to the |7admission into evidence of the crime lab report finding that the substance was in fact marijuana. He asserts his counsel should have objected to these admissions based on a break in the chain of custody of the marijuana, and that his failure to do so prejudiced his trial.

The law on ineffective assistance of counsel is well settled. As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief (“PCR”) in the trial court than by appeal. This is because PCR creates the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982); State v. Ellis, 42,520 (La.App.2d Cir.09/26/07), 966 So.2d 139, writ denied, 2007-2190 (La.04/04/08), 978 So.2d 325. A motion for new trial is also an accepted vehicle by which to raise such a claim. Id. When the record is sufficient, however, this issue may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Willars, 27,394 (La.App.2d Cir.09/27/95), 661 So.2d 673. In this case, the record is sufficient to dispose of the defendant’s claim on appeal.

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. State v. King, 2006-1903 (La.10/16/07), 969 So.2d 1228; State v. Wry, 591 So.2d 774 (La. App. 2d Cir.1991). A claim of ineffectiveness of counsel is analyzed under the two-prong test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): the defendant must first show that his attorney’s performance was deficient and, second, that the error prejudiced his defense. The first prong is satisfied by a showing that counsel made errors so serious that he was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. The relevant inquiry is whether counsel’s representation fell below the standard of reasonableness and competency as required by prevailing professional standards demanded for attorneys in criminal cases. Strickland, supra. The assessment of an attorney’s performance requires his conduct to be evaluated from counsel’s perspective at the time of the occurrence. A reviewing court must give great deference to trial counsel’s judgment, tactical decisions, and trial strategy, strongly presuming he has exercised reasonable professional judgment. State v. Grant, 41,745 (La.App.2d Cir.04/04/07), 954 So.2d 828, writ denied, 2007-1193 (La.12/07/07), 969 So.2d 629; State v. Moore, 575 So.2d 928 (La.App. 2d Cir. 1991). The second prong requires a showing that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious as to deprive the defendant of a fair trial, ie., a trial whose result is reliable. Strickland, supra. The defendant must show that but for counsel’s unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Strickland, supra; State v. Pratt, 26,862 (La.App.2d Cir.04/05/95), 658 So.2d 174, writ denied, 1995-1398 (La.11/03/95), 662 So.2d 9.

The law on the chain of custody of evidence is also well settled. To admit demonstrative evidence at trial, an object must be identified, either by testimony that the object is related to the case or by the chain of custody |gfrom the time of seizure until presentation at trial. For the admission of demonstrative evidence, it suffices if the foundation laid establishes that it is more probable than not that the object is relevant to the case. State v. Holden, 45,038 (La.App.2d Cir.01/27/10), 30 So.3d 1053, writ denied, 2010-0491 (La.09/24/10), 45 So.3d 1072. It is not necessary that the evidence as to custody eliminate all possibilities that the object has been altered. The state need only establish by a preponderance of the evidence that the object is the one connected with the case. State v. Toney, 26,711 (La.App.2d Cir.03/01/95), 651 So.2d 387. A defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Jackson, 629 So.2d 1374 (La.App. 2d Cir.1993), writ denied, 1994-0201 (La.05/06/94), 637 So.2d 1046.

Here, the defendant claims that because his counsel did not object to the admissibility of the marijuana and the crime lab report on the basis of the chain of custody, he was denied effective assistance of counsel. This claim is not well founded. First, if the chain of custody of a piece of evidence is faulty, this goes to the weight of the evidence, not its admissibility in court. Therefore, defendant’s counsel was correct in not objecting to the admissibility on these grounds. Second, counsel did in fact point out the inconsistencies of testimony regarding who placed the marijuana into the evidence bag when she cross-examined Cpl. Sharrow:

Question: Now at one point in the video you testified, when you were narrating, that the confidential informant was placing the marijuana into the evidence bag and sealing it.
Answer: Uh-huh
| mQuestion: However, at the end of the tape, do you agree that it shows the confidential informant taking the marijuana out of the console and then placing it into the evidence bag when you arrived at the location to meet him?
Answer: I placed it in the evidence bag. I did make a mistake. Like I said, they’re real hard to get open and the sealants are hard. It’s hard to do it driving. But I did make a mistake. I thought he put it in there.

The video surveillance from inside Hunter’s vehicle shows him sniffing a baggie during a transaction with Booker. Hunter stated he placed the marijuana into the evidence bag and placed the evidence bag into the center console of his vehicle, but he did not testify that he sealed the bag. Audio surveillance then depicts the sound of Hunter closing the center console. The video surveillance shows that when the officers opened the center console marijuana was found inside, slightly forward of the open evidence bag. This placement suggests that Hunter put the marijuana into the evidence bag without sealing it, placed the evidence bag containing the marijuana into the center console, the marijuana slid out during transit, and the officers placed the marijuana back into the evidence bag and sealed it upon retrieval. The marijuana retrieved by the officers looked identical to the marijuana introduced at trial. It is reasonable that the jury believed the testimony of the officers and Hunter regarding the chain of custody of the marijuana as it was supported by audio and video surveillance. While the marijuana is an essential piece of evidence needed to convict Booker of distribution of marijuana, Booker’s counsel was not ineffective for faffing to object to its admissibility. The argument to the contrary is without merit.

11 t Conclusion

For the foregoing reasons, Richard Wayne Booker, Jr.’s conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Richard Dean ELSTON, Jr. and Ashley Bruscato Elston, Plaintiffs-Appellants v. Jo Nell V. MONTGOMERY and Michael F. Montgomery, Defendants-Appellees.
    No. 46,262-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Mayer, Smith & Roberts, LLP, Shreveport, LA, by David F. Butterfield, for Plaintiffs/Appellants Richard Dean Elston, Jr. & Ashley Bruscato Elston, D.A. Ri-chlen Land Co., Inc., Intervener/Appellant.
    Kammer & Huckabay, Shreveport, LA, by Pugh T. Huckabay, III, for Plaintiff/Appellant Ashley Bruscato Elston.
    Wiener, Weiss & Madison, Shreveport, LA, by R. Joseph Naus, Seth M. Moyers, for Defendants/Appellees Jo Nell V. Montgomery & Michael F. Montgomery.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

| ¶Dean and Ashley Elston and D.A. Ri-chlen Corporation, owners of enclosed estates in Bossier Parish, appeal a judgment which granted only in part their request to enforce a conventional servitude, rejected their claim for a wider legal servitude, and ordered the Elstons, Richlen and Mike Montgomery, the owner of the servient estate, to pay 1/3 each the cost of repairing the existing servitude. For the reasons expressed, we amend the judgment to set the cost of repair at the amount proved at trial, $29,700, with legal interest from date of judicial demand, but in all other respects we affirm.

Factual Background

The enclosed land, sometimes called “the Webb property,” consists of 346 acres in the horseshoe formed by Bodcau and Red Chute Bayous in southern Bossier Parish. Jo Nell Montgomery and her son, Mike, owned some 53 acres at the base of the horseshoe. A public road, Sligo Road, runs basically north-south along the base of the horseshoe. A smaller road, Old Sligo Road, turns east off Sligo Road and runs along Bodcau Bayou, providing access into the enclosed land, but the Bossier Parish Police Jury formally abandoned Old Sligo Road in 1976. Since then, the blacktop Old Sligo Road has been the only way the Montgom-erys and the Webbs could get to their property.

Mrs. Montgomery built a house close to Old Sligo Road in the early 1970s and for many years the Webbs used the enclosed land as a pecan orchard, cattle pasture and hayfield. The Webbs’ tenants and employees 12drove right past Mrs. Montgomery’s house and all concerned seemed to be in a peaceful coexistence.

In March 1998, the Elstons bought from Mrs. Webb a 20-acre parcel just to the east of the Montgomerys, intending to build their home there. According to testimony, the bank would not give the El-stons a building loan unless they obtained a servitude of passage, guaranteeing their right to use Old Sligo Road. There was much testimony about the discussions between the new neighbors, but they executed a servitude of passage on March 26, 1998 (hereinafter, “the 1998 agreement”). The provisions critical to this case were as follows:

• The Montgomerys granted “a perpetual servitude of passage over their respective property for the use and benefit” of the Elstons, described as a “30 foot road servitude.”

• The Montgomerys “shall at no time obstruct the servitude of passage in any manner so as to interfere with the use thereof by the Grantees or their successors and/or assigns except as to the gates herewith agreed to.”

• Both sides acknowledged “that several gates presently exist on the old abandoned Sligo Road and agree that said gates will not be removed from their present location, but at no time shall Grantor prevent Grantee from entering said gates.”

• Both sides “shall at all times maintain the said right of way in good order and condition and shall contribute equally to the cost of such maintenance.”

The Elstons built their house and began raising a family; they also ran a landscape business and photography studio from their home. Mike Montgomery, a Bossier Parish firefighter who runs a lawn service from his home, got married and built a house behind his mother’s, further back off [s01d Sligo Road. He started a family, and parents and children got along splendidly with their neighbors the Elstons, even going on vacations together. The Montgom-erys did not seem to mind the landscaping trucks rolling down Old Sligo Road, and the Elstons did not seem to mind the post- and-boom gate across Old Sligo Road at the juncture with Sligo Road; this stayed open most of the time. As for the servitude, testimony showed that Jo Nell Montgomery usually mowed the unpaved portion of the 30-foot strip, and Dean Elston usually patched routine potholes with a few bags of Quikrete™.

In 2002, Mrs. Webb sold the rest of her land inside the horseshoe, over 300 acres, to Richlen, a family corporation owned by Dean’s mother, Lennis Elston. Lennis El-ston testified that Richlen owns over 6,000 acres in the area, and her intent in buying the Webb property was to build an upscale subdivision, similar to (but nicer than) the nearby Olde Oaks and Old River Place developments. She did not, however, submit her plan for this to the Metropolitan Planning Commission, admitting major obstacles existed in that part of the tract was designated as a flood zone, the economy was in a downturn, and (critically) there was no public access to the tract. Richlen was not a party to the 1998 agreement.

The parties’ amiable relationship suddenly unraveled in mid-2007 when land-men swarmed the area seeking leases in the Haynesville Shale. The Elstons, controlling 346 acres, promptly signed with an agent for Petrohawk; the Montgomerys did not, and were horrified at the prospect of heavy oilfield traffic rumbling right past their homes. Ashley Elston, |4Pean’s wife, went to the Montgomerys’ house to straighten things out, but apparently this visit only stoked the tensions. On August 21, 2007, the Montgomerys’ attorney sent the Elstons a certified letter demanding $3,800 as half the cost of mowing and string-trimming the servitude over the pri- or nine years, and $14,650 as half the cost to repave the road. Shortly after this, Mike Montgomery installed a funnel-shaped fence with an automatic 16-foot gate in place of the old manual post-and-boom. The new gate was supposed to open by remote (which the Montgomerys had) or by keypad (the entry code was given to the Elstons and their employees).

The Elstons felt the narrow, automatic gate had been installed purely in retaliation for the mineral lease and to obstruct large oilfield vehicles from entering. The Montgomerys admitted the gate was plagued with mechanical problems and often did not open, inconveniencing the El-stons and their employees. However, they felt it was essential for security, as they had heard of vandalism in the nearby subdivisions. At trial, they reluctantly conceded that if an 18-wheeler (en route to be loaded with pecans, for instance) had to stop at the gate, it would project into Sligo Road, creating a hazard. Around the same time as they installed the automatic gate, Mike Montgomery also laid some unusually tall speed bumps on Old Sligo Road, and his mother placed large cinder blocks on the side of the servitude to prevent vehicles from riding around the speed bumps.

Relations between the parties sharply deteriorated. One illustrative incident would be August 24, 2007, when Mike Montgomery phoned the Elstons around midnight, ostensibly asking for help to move his brokenjdown6 Ford truck off Old Sligo Road; after all, he wanted to keep the servitude open for them. When the Elstons refused, Mike allegedly stormed up to their front porch and banged on the door, and got into a shouting match with them. The next day, Dean Elston obtained an order of protection from the district court, prohibiting Mike from harassing or talking to any of the Elston family or going within 100 yards of their house.

Procedural History and Subsequent Facts

On October 19, 2007, the Elstons filed this suit to maintain and enforce the 1998 agreement. The Montgomerys reconvened, claiming $3,800 for mowing and $14,650 to repave the road. In December 2007, the parties entered a consent order whereby the Montgomerys agreed to keep the gate open at all times and to build no additional fencing; each party agreed not to communicate with the other; and the Montgomerys agreed not to repave the road until the litigation was completed.

According to the Montgomerys, after this time the blacktop surface of Old Sligo Road got much, much worse. Notably, Petrohawk has never performed any exploration on the Webb property, but Mike Montgomery leased part of his land for a cell phone tower and another part as an on-location set for the movie “The Pardon.” In 2008, the Montgomerys granted Petrohawk a 40-foot easement across their property, and Mike bought out his mother, making him the sole owner of the servient estate.

In February 2008, Richlen intervened, adopting all the Elstons’ claims and further demanding a 60-foot legal servitude along Old Sligo Road to accommodate a new subdivision, plus removal of the automatic | (¡gate and existing fence.

The pattern of distrust and harassment continued although the parties made several efforts to settle the case, including an interim order in April 2009 whereby Mike Montgomery reconfigured the fence and gate to make it less restrictive, and the Elstons paid him $2,500 and were allowed to patch some of the worst potholes. However, the gate continued to malfunction, in several incidents poignantly described by Ashley Elston at trial.

The matter proceeded to trial over three days in November 2009 and March 2010. The parties testified as outlined above. In addition, Mike Montgomery testified that he had just installed a “panel gate” with a 16-foot automatic gate and 10-foot manual gate, for a total width of 26'10". He said this was set back farther from Sligo Road so, if necessary, an 18-wheeler could wait at the gate and not jut into the highway. He also said the automatic portion was a top-of-the-line Door King 6300 electric gate that could be programmed to open and close at certain times and should be very reliable.

The Elstons testified that all the friction and conflict had finally been too much for them; they built a new house just off Hwy. 1 in Shreveport and planned to move out of their Bossier home just days after the trial ended. The Elstons also called Forrest Raburn, a civil engineer and land surveyor, who unveiled their proposed Pecan Plantation Subdivision, consisting of 28 lots ranging from 5 to 12 acres each. Despite the problems with flood zoning, lack of access and the economy, he felt that the “highest and best use” of the Webb property was as a luxury subdivision. Finally, the Elstons 17called James A. Young, a real estate appraiser, who felt there was a “lot of demand” for the kind of subdivision the Elstons were proposing.

The Montgomerys called an expert appraiser, Mark Montgomery, who felt that because of the issues cited and dismissed by Raburn, the Webb property was best suited for agricultural purposes, its current use. They also called Christopher Fink, a paving contractor, who testified that there was no sense in simply repairing Old Sligo Road; it needed a complete overlay, which he estimated would cost $29,700.

Action of the District Court

The district court issued written reasons for judgment, finding that the inconvenience created by the servient estate must be measured by a standard of reasonableness. Citing the prevalence of “gated communities” in the area and Watts v. Baldwin, 95-0260 (La.App. 1 Cir. 10/6/95), 662 So.2d 519, it found that a gate was not an unreasonable hindrance if it was open during daylight hours and, at night, users of the dominant estate could open it without leaving their vehicles. Next, the court strictly applied the 30-foot width stated in the 1998 agreement, and noted that as to Richlen (which was not a party to the agreement) developing its sizable tract made economic sense. The court found, however, that Richlen has no absolute right to commercially subdivide its property, and thus the 60-foot servitude was not required. The court awarded Richlen a 30-foot servitude identical to the Elstons’. The court also ordered the Montgomerys to remove the speed bumps, and found that the Elstons’ earlier payment of $2,500 adequately compensated the Montgomerys for mowing the servitude. Finally, the court |8found the road was no longer in good order and condition, and accepted Fink’s estimate of $29,700 to repave it. Even though the 1998 agreement called for the Montgomerys and Elstons to share this cost equally, the court found that because Richlen had demanded and received a right of passage, it should bear an equal share; the court ordered the Montgomerys, the Elstons and Richlen to pay $9,900 each.

After some discussions regarding phraseology, the Montgomerys submitted a final judgment that the district court signed on August 3, 2010, recognizing the 1998 agreement, granting Richlen a coextensive legal right of passage, and incorporating the other provisions of the written reasons. 11VII ordered the Elstons and Richlen to pay $9,900 each, “plus interest at the legal rate from the date due under this judgment, until paid.” Finally, ¶ IX stated that if the Elstons and Richlen failed to pay “within the delay for taking suspensive appeal of this judgment, which is the due date,” then they must pay “one-third of the actual cost of repaving the road, even if the actual cost of repaving the road exceeds $29,700, plus interest[.]”

The Elstons and Richlen have appealed suspensively, raising five assignments of error.

Discussion: Allowance of the Gate

By their first assignment of error, the appellants urge the district court erred in allowing a gate at the head of Old Sligo Road to restrict and interfere with their access to their property. They show that the 1998 agreement prohibits the Mont-gomerys from obstructing the passage “in any manner so as to interfere with the use thereof’ except for “the gates therewith agreed to” and “several gates [that] presently exist[.]” They cite Mike Montgomery’s testimony that at the time there were two horse gates along the bayou side of the servitude and one at the entrance to the Elstons’ property, and Dean Elston’s testimony that they never discussed adding a gate across Old Sligo Road. They concede that Mike Montgomery’s wife and mother said the gate had always been there, but argue that old photos (Exhibit P-51, images 35 and 36) show only a cattle guard, no gate. They argue that under La. C.C. art. 748, the owner of the servient estate “may do nothing tending to diminish or make more inconvenient the use of the servitude,” and this gate is a pure impediment, as was the cable bander ordered removed in Stuckey v. Collins, 464 So.2d 346 (La.App. 2 Cir.1985). They conclude the court was plainly wrong to find that the 1998 agreement did not prohibit the Montgomerys from constructing a security gate.

The Montgomerys respond that the district court’s factual findings are subject to manifest error review, and that on disputed evidence, the court was not plainly wrong to find the parties discussed and agreed to this gate before they signed the servitude agreement. Further, the 1998 agreement expressly permits gates on the servitude, thus taking the case out of the purview of legal servitudes, La. C.C. art. 697 and Stuckey v. Collins, supra. They submit that the judgment more than adequately accommodates people needing access to the Webb property.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear 11fland explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Prejean v. Guillory, 2010-0740 (La.7/2/10), 38 So.3d 274. However, a provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

A contract is considered ambiguous on the issue of intent when either it lacks a provision on that issue, the terms of the contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. Campbell v. Melton, 2001-2578 (La.5/14/02), 817 So.2d 69; Miller v. Miller, 44,163 (La.App. 2 Cir. 1/14/09), 1 So.3d 815. Factual findings pertinent to the interpretation of a contract will not be disturbed absent manifest error. Campbell v. Melton, supra; New man Mar chive Partnership v. City of Shreveport, 40,512 (La.App. 2 Cir. 2/24/06, 923 So.2d 852), writ denied, 2006-1040 (La.6/23/06), 930 So.2d 983. Under the manifest error standard, the appellate court may not reverse reasonable factual findings even if convinced that had it been sitting as a trier of fact, it would have weighed the evidence differently. Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065; Meneweather v. Shelter Ins. Co., 43,109 (La.App. 2 Cir. 3/19/08), 978 So.2d 1243.

The 1998 agreement provided that the Montgomerys “shall at no time obstruct the servitude of passage in any manner so as to interfere with the use thereof * * * except as to the gates herewith agreed to.” However, it did not describe the “gates herewith agreed to” and thus referred to a particular simply not stated in the agreement. The precise location of these gates cannot be ascertained from the language used. In such a situation, the court is permitted to consider extrinsic evidence, the testimony of the parties. Campbell v. Melton, supra; Miller v. Miller, supra. The testimony on this issue was highly conflicting, as might be expected of neighbors whose former friendship has ruptured and degenerated into rank animosity. We simply cannot say the district court was plainly wrong or abused its discretion in finding that the parties discussed and “herewith agreed to” a security gate at the head of Old Sligo Road.

Another provision recognized that “several gates presently exist on the old abandoned * * * Sligo Road” and prohibited the Elstons from removing them. Read together and in a manner that gives meaning to the agreement as a whole, these passages fully support the district court’s finding that the parties contemplated the existence of gates as long as they did not unreasonably interfere with the use of the servitude. A gate which is open during daylight hours and may be opened by users of the dominant estate without leaving their vehicles during nighttime hours does not appear to impose an unreasonable burden on the use of the servitude. Moreover, in light of the conflicting testimony, the district court did not abuse its | ^discretion in finding that a security gate was a reasonable response to the Mont-gomerys’ security concerns.

This assignment of error lacks merit.

Expansion of Existing Servitude

By their second assignment of error, the appellants urge the district court committed legal error in “permanently condemning” their property to its historical agricultural use by refusing to expand the servitude of passage to accommodate future subdivision development, and in prohibiting the construction of any road other than the current one. They concede that La. C.C. arts. 690 and 705 refer only to “the kind of traffic that is reasonably necessary” and the “reasonable use of the dominant estate,” but argue that the concept of necessity has been interpreted to permit the owner of the dominant estate to “obtain full utility of his land,” Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), and “in the manner which he may deem most profitable,” Littlejohn v. Cox, 15 La. Ann. 67 (1860). Further, even though the servitude is fixed by contract, it may be relocated to reflect different property uses, Mitcham v. Birdsong, 573 So.2d 1294 (La. App. 2 Cir.1991), or even expanded, if so doing does not aggravate the condition of the servient estate, A.N. Yiannopoulos, 4 La. Civ. L. Treatise, Predial Servitudes, §§ 155, 156 (3 ed.2004). They submit that their proposal of a viable subdivision project was proof of the highest and best use of the land, as in Greenway v. Wailes, 41,412 (La.App. 2 Cir. 8/1/06), 936 So.2d 296, and warranted the award of a 60-foot servitude. Finally, they contend that even if only a 30-foot servitude was warranted, the court abused its | ^discretion in confining the road to only 12 to 16 feet wide.

The Montgomerys respond that “highest and best use,” the standard of compensation in expropriation cases, has never been the standard for fixing the width of a servitude of passage. They contend that Richlen’s legal right of passage under La. C.C. art. 690 is only for the “kind of traffic that is reasonably necessary” for the use of the dominant estate. They also argue that under recent jurisprudence, the scope of the servitude “is determined by the actual needs of the enclosed estate.” Davis v. Culpepper, 34,736 (La.App. 2 Cir. 7/11/01), 794 So.2d 68; A.N. Yiannopoulos, op. cit., § 93. They submit that Richlen’s proposed subdivision was purely speculative, being no more than a surveyor’s concept which had never even been submitted to the Metropolitan Planning Commission and failed to account for the fact that much of the tract is designated as a flood zone. Finally, they urge that the court did not abuse its discretion in finding that 12- to 16-foot paved surface of Old Sligo Road has been adequate for the needs of the Webb property since the police jury abandoned it in 1976, and continues to serve the dominant estate’s necessity.

The legal right of passage for the benefit of an enclosed estate “shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.” La. C.C. art. 690. The scope of the right of way granted over neighboring lands is determined by the actual needs of the enclosed estate. Davis v. Culpepper, supra; May v. Miller, 2006^418 (La.App. 3 Cir. 10/11/06), 941 So.2d 661, writ denied, 2007-2009 (La.3/9/07), 949 So.2d 443. The right of passage is predicated on necessity; whether a passage is necessary or not is determined according to objective criteria rather than the wishes of the owner of the enclosed estate. A.N. Yianno-poulos, op. cit., § 93, fn. 13. The trial court’s findings as to necessity under Art. 690 are subject to manifest error review. May v. Miller, supra.

The district court may have been slightly overbroad in its statement that Louisiana law permits no right of passage for future development. In both Rockholt and Littlejohn, supra, the Louisiana Supreme Court intimated that the dominant estate may fully utilize its land to greatest profit, although these statements were plainly dicta. In Greenway v. Wailes, supra, this court affirmed a legal right of passage that was conditioned on the development of five home sites on the dominant estate.

In the court’s factual findings, however, we perceive no manifest error. Notably, the plaintiff in Greenway had cleared the greater part of the enclosed estate and hauled in a large amount of gravel; his plans were actual, not merely speculative. By contrast, Richlen showed only survey- or’s sketches, no formal plan submitted to the MPC, and could not explain how the subdivision would be approved with so much of it in a flood zone. The record also shows that in the nearby Olde Oaks and Old River Place subdivisions, sales of lots have slowed, suggesting no necessity for yet another upscale development. Also, because Old Sligo Road nearly 11sstraddles Bodcau Bayou, the additional 30 feet requested by Richlen would virtually have to be sliced from the south side of the road, coming even closer to the Montgomerys’ homes. On close consideration, we find no manifest error in the district court’s implicit conclusion that Richlen failed to prove necessity for a 60-foot servitude.

We also find no manifest error in the court’s conclusion that the existing road, the 12- to 16-foot paved surface of the abandoned Old Sligo Road, is sufficient for the needs of the dominant estate. It has obviously served the owners of the enclosed property, with occasional patching and repairs, until Richlen floated the idea of a new subdivision. The court also noted that granting Richlen a 60-foot legal servitude, while limiting the Elstons to a 30-foot conventional servitude, would only cause confusion. On this record, we perceive no abuse of discretion.

This assignment of error lacks merit.

Necessity of Repaving

By their third assignment of error, the appellants urge the district court erred in finding that Old Sligo Road needs to be repaved. They argue that the road surface is no worse than it was in 1998, when the Elstons signed the 1998 agreement, and that only Mike Montgomery felt it needed to be paved. They also show that the Montgomerys’ own expert, Chris Fink, agreed on cross-examination that it would be better to postpone repaving until all drilling activity concluded.

The Montgomerys respond that the 1998 agreement requires them and the Elstons to “maintain the said right of way in good order and condition” |1fiand “contribute equally to the cost of such maintenance.” They submit the court was not plainly wrong to find the road no longer in “good order and condition.”

As elsewhere, the record contains a divergence of testimony. Mike Montgomery testified on cross-examination that the road was “past repair”; his mother, who recalled an earlier time when it was just a gravel road, testified the pavement was now in bad condition; his wife, Sunni, said the potholes were “not that bad.” The Montgomerys’ expert, Chris Fink, testified that the road was past the point of mere patching and repair, but agreed that repaving could be deferred until after drilling operations were concluded. Lennis Elston, Dean’s mother and owner of Ri-chlen, admitted the road had “deteriorated significantly,” but felt that patching the potholes would be sufficient; Dean himself felt the road was no worse than it had been in 1998, except for potholes which could be easily patched. The photos in evidence show a blacktop road with many smooth stretches but long strips broken off along the edges and various deep potholes. Although the evidence is close, we cannot say the district court was unreasonable in finding that the road is no longer in good order and condition. Rando v. Anco Insulations Inc., supra.

This assignment lacks merit.

Indemnifícation by Richlen

By their fifth assignment of error, the appellants urge the district court erred in apportioning the cost of maintaining the servitude 1/3 each to the Montgomerys, the Elstons and Richlen. They contend that no party Informally demanded from Richlen payment of these costs; no citation or service was ever made on Richlen; no proof was offered that Richlen ever damaged the servitude; and La. C.C. arts. 690, 691 and 744 do not permit the owner of the servient estate to dictate how the owner of the dominant estate must maintain the servitude.

Richlen filed a petition of intervention alleging that it was the owner of an enclosed estate (having acquired it from Mrs. Webb by cash sale deed in 2002 and credit sale deed in 2007) and demanding a “perpetual legal servitude of passage.” La. C.C. art. 689 provides:

The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.

Any plaintiff demanding a legal right of passage under this article must allege that he is willing to pay compensation for the damages occasioned by the servitude. Morgan v. Culpepper, 824 So.2d 598 (La.App. 2 Cir.1975), writs denied, 326 So.2d 377, 378 (1976). By filing its intervention, Richlen effectively alleged its willingness to indemnify the Montgom-erys for the damages resulting from its use of the servitude. There was no need for the Montgomerys to demand payment of indemnification that was already admitted. In addition, Richlen has been using the road since 2002, only four years after the Elstons obtained the servitude, and owns over 15 times as much enclosed property as the Elstons. Naturally, the record does not ascribe any particular potholes or edge ruts to any particular party. Under the circumstances, the district court did not abuse its discretion in allocating a proportionate share of 1/3 of the cost to each party |1swho has used, and will use, the servitude.

This assignment lacks merit.

Form of Judgment

By their fourth assignment of error, the appellants urge the final judgment infringed on their right to appeal and improperly cast them in judgment for an indeterminate amount. First, they argue that a judgment must be certain and not based on any contingency. Clark v. Diamond B. Const., 2000-2146 (La.App. 1 Cir. 12/28/01), 803 So.2d 1113. If the amount remains to be determined by a future contingency, “it is no proper judgment.” Russo v. Fidelity & Dep. Co., 129 La. 554, 56 So. 506 (1911). They contend that the provision ordering them to pay “actual repaving costs” is contingent on their failure to pay the estimate of $29,700 and hence improper. Next, they show that the judgment ordered them to pay “within the delay for taking suspensive appeal of this judgment, which is the due date[.]” They argue that this defeats the whole purpose of a suspensive appeal, which is to defer the effects of a judgment that could be possibly overturned until the appellate court upholds the ruling. La. C.C.P. art. 2123; American Branch Bldg. Corp. v. Bozeman, 543 So.2d 1114 (La.App. 1 Cir.), writ denied, 548 So.2d 1231 (1989).

The Montgomerys respond that because the district court ultimately granted a sus-pensive appeal, this argument is moot. They also contend that because the 1998 agreement obligated every user to contribute to the cost of maintenance, the court did not abuse its discretion in ordering the appellants to pay them share of Mr. Fink’s estimate within a stated time, or else pay | istheir share of the actual cost.

A final judgment must be precise, definite and certain. Barnes v. Riverwood Apartments Partnership, 42,912 (La.App. 2 Cir. 2/6/08), 975 So.2d 720, and citations therein. Over a century ago, the Louisiana Supreme Court stated:

[I]f a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision. If the amount remains to be determined by a future contingency, or ascertained by references, or diminished by the allow-anee of an unliquidated credit, or is otherwise indefinite and uncertain, it is no proper judgment.

Fontelieu v. Fontelieu, 116 La. 866, 881, 41 So. 120,125 (1906); Succession of Jenkins, 41,202 (La.App. 2 Cir. 7/26/06), 936 So.2d 268.

We find that ¶ IX of the judgment, ordering the appellants to pay an unspecified “actual cost of repaving,” is imprecise, indefinite and uncertain. The only evidence of cost was Mr. Fink’s testimony, which set it at $29,700. The district court was within its discretion to accept this estimate, but not to award an alternative, unstated amount. We will amend the judgment by deleting this provision.

When the object of the performance is a sum of money, damages for delay in performance are measured by interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest. La. C.C. art. 2000; Hollenshead v. Gemini Explorations Inc., 45,389 (La.App. 2 Cir. 7/21/10), 44 So.3d 809, writ denied, 2010-2046 (La.11/12/10), 49 So.3d 892. Rather than a punitive, uncertain amount, legal interest from date of judicial demand is the proper | gpremedy for delay. We therefore amend ¶ VII to assess legal interest from the date of judicial demand, which is November 27, 2007, for the Elstons, and February 1, 2008, for Richlen.

This assignment of error has merit.

Conclusion

For the reasons expressed, we amend the judgment to state, in ¶ VII, that the Elstons and D.A. Richlen are each to pay $9,900, plus legal interest from date of judicial demand until paid, with date of judicial demand to be November 27, 2007, for the Elstons and February 1, 2008, for Richlen. We also amend the judgment to delete, in its entirety, ¶ IX, as an abuse of the court’s discretion and redundant in light of the amendment to HVIL In all other respects, however, the judgment is affirmed.

Appellate costs are to be paid one-half by the Montgomerys and one-half by the appellants.

AMENDED AND AFFIRMED.

      . The Elstons acquired the property from their cousin, Charlotte Webb, whose family had owned it for many generations.

      . At the time, Mike Montgomery was living in a trailer behind his mother’s house.

      . See La. R.S. 19:9 (measure of compensation for expropriated property); R.S. 48:453 (measure of compensation for property expropriated by DOTD); R.S. 9:3183 (basis for determining value of expropriated property); Exxon Pipeline Co. v. Hill, 2000-2535 (La.5/15/01), 788 So.2d 1154.

      . In Rockholt, the court found that the plaintiff's tract was not truly "enclosed” in the sense required by La. C.C. art. 699, and hence not entitled to a right of passage. In Little-john, the plaintiff was not seeking to enlarge an existing servitude, but to recognize for the first time the legal right of passage.


text:
    Dorothy POLLOCK, et al., Plaintiffs-Appellees v. TALCO MIDSTREAM ASSETS, LTD., Defendant-Appellant.
    No. 46,302-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Kevin Hammond, for Appellant.
    Thomas A. Wilson, Jr., Bossier City, LA, G. Warren Thornell, Shreveport, LA, for Appellee.
    Before BROWN, MOORE and LOLLEY, JJ.
   MOORE, J.

| ,The defendant, Talco Midstream Assets Ltd. (“Talco”), a pipeline construction company, appeals a ruling denying its motion for new trial and the default judgment in which the trial court awarded the plaintiffs over $200,000 in damages. Talco seeks a remand for a new trial on the merits, or alternatively, a reduction in the damages awarded. For the following reasons, we affirm the judgment denying Tal-co’s motion for new trial, but modify the damage award.

Procedural History

Previously, in Pollock v. Talco Midstream Assets Ltd., 44,629 (La.App. 2 Cir. 9/23/09), 22 So.3d 1033, a panel from this court remanded this case for a hearing on Talco’s motion for a new trial, which the trial court had denied on grounds that the motion constituted a procedurally improper attempt to annul the judgment for an “ill practice” under C.C.P. art. 2004. The panel reversed the trial court, holding that the “ill practice” grounds for nullification could be considered in a motion for new trial, and it remanded the case to the trial court for a contradictory hearing.

The hearing was held on May 10, 2010, where the court took evidence and testimony and the parties filed post-trial briefs. On May 17, 2010, for reasons orally assigned, the trial court found no grounds for a new trial. Specifically, the court determined that a letter from plaintiffs’ counsel to Talco’s senior vice-president, which stated, “This matter has not been resolved. Please file your answer at this time,” was sufficient to put Talco on notice that the plaintiffs were moving forward with their lawsuit and the prior agreement not to take a default judgment without a 10-day notice fallowing Talco time to file an answer was no longer in effect. The court also found that the default judgment was not obtained .by fraud or ill practice resulting from this alleged “miscommuni-cation.”

Talco filed this appeal.

FACTS

The dispute arose out of Talco’s construction of a pipeline across Ms. Dorothy Pollock’s property. Ms. Pollock, age 92, lives in her own home on a 29.5-acre rectangular lot measuring 350' x 3665'. Two grandsons and a daughter, Shirley Loe, also own and reside in homes located on the property. Access to the homes is provided by a well-established (25 years), long gravel driveway several hundred yards long beginning from Blanchard-Furrh Road, crossing a land bridge, and ending at the homes of Ms. Pollock’s two grandsons, Mike and Matt Loe. The road forks off with driveways to Ms. Pollock’s home and her daughter’s home. An asphalt apron measuring 12 x 20 feet provides the transition from Blanchard-Furrh Road to the gravel drive.

Prior to construction of the pipeline, the land bridge consisted of a concrete culvert under the driveway located midway through the rectangular lot. The culvert was placed in that location 25 years ago to facilitate the natural drainage of the property in that area, which is part of the Cross Lake watershed.

In April or May of 2006, Talco began constructing a pipeline across Ms. Pollock’s property. According to the plaintiffs, Talco had no legal right of way over the property and thus attempted to get Ms. Pollock to sign a |sright-of-way document in exchange for $8,789.53. Mrs. Pollock refused the offer (Talco contends that it had obtained the right-of-way from the mineral servitude owner). Talco continued to construct the pipeline on the property to completion. The plaintiffs filed this lawsuit on April 18, 2007, to enjoin construction of the pipeline, and for restoration of the property and damages.

Plaintiffs alleged that Talco destroyed the land bridge and replaced the concrete culvert with two smaller aluminum culverts that were inadequate to handle the water flow, and which subsequently washed out, causing the property to flood and become impassable for an extended period. They alleged that the heavy equipment used by Talco destroyed the asphalt apron, damaged the driveway and created large ruts in the property, further creating drainage problems.

After the petition was filed and service obtained, Talco’s senior vice-president, Mr. Allen Matysiak, contacted the Pollocks’ attorney, Thomas Wilson, requesting an extension of time to file an answer. He requested that the parties try to resolve the matter before proceeding further and promised he would facilitate further negotiations to reach a possible settlement. Wilson and Matysiak agreed to meet on May 14, 2007 to discuss a settlement. In return, Wilson sent a letter dated May 2, 2007, promising he would not take a default or any adverse action against Talco without first giving Talco 10 days’ advance written notice. Wilson was unable to attend the meeting, however, so he sent a second letter on May 14, 2007, to Matysiak assuring him that the prior agreement would remain in effect and |4he would take no adverse action without giving the 10-day notice.

The settlement conference was rescheduled for August 29, 2007. Matysiak did not appear at the meeting, but sent emissaries Victor Davis and Ted Lyles to meet with attorney Wilson. Wilson alleges that he offered to settle the matter for a sum that mostly represented the cost of repair and restoration of the property. He states that Davis told him that he had no authority to offer more than the amount previously offered to Mrs. Pollock.

Davis subsequently visited the property and called Wilson stating that he saw nothing to support the settlement demand. He offered to fix a leaky water line and the same monetary amount previously extended. No other meetings were held.

On October 19, 2007, with no agreement having been reached amidst the continuing problems on the property, Wilson sent Ma-tysiak a letter advising: “This matter has not been resolved. Please file your answer at this time.”

The central question in this case is whether the October 19, 2007, letter above effectively served as a 10-day written notice to Talco required by the agreement that it was at peril of a default judgment, or whether the letter constituted notice that the agreement to provide such notice was no longer in effect. Wilson contends that the letter was obviously meant to be a termination of the agreement to provide an extension of time afforded Talco. Conversely, Talco asserts that it believed counsel’s letter was simply an informal request to orchestrate a resolution, not a notice that the Pollocks were reviving the previously instituted suit. Talco further notes that two of | .fits representatives met with Pollock’s counsel following the October 19 letter and that additional proposals were made, although these allegations are disputed by Pollock. Talco also sent the following letter to Pollock’s attorney on October 26, 2007, which it deemed an “answer” to the October 19 letter:

We do agree to come back and repair the water line one more time and reissue draft or a check for bonus as agreed between the landowner and Right-Of-Way agent. Please advise if this is acceptable.

On December 3, 2007, Wilson caused a preliminary default to be entered. On September 22, 2008, nearly 10 months later, the default judgment was confirmed, with the court rendering judgment against Talco in the amount of $201,900.00, plus interest and costs. A written judgment in accordance with the oral ruling was signed on September 80, 2008. Notice of the judgment was served on Talco on October 9, 2008.

On October 15, 2008, Talco filed a motion for new trial based on the circumstances under which the default judgment was obtained. Talco argues that it never received the 10-day notice promised by Pollock’s counsel and that the October 19, 2007, letter was insufficient to constitute such notice.

As stated above, without hearing any testimony or reviewing the letters referenced above, the trial court denied Talco’s motion for new trial on grounds that it was procedurally improper to use the motion for a new trial for what was essentially an action to nullify a judgment. The defendant appealed, and this court reversed and remanded the case for a contradictory hearing on the motion for a new trial, holding that the motion for new trial | ¿was a proper procedural vehicle to annul a default judgment for ill practice. After the hearing, the trial court denied the motion for new trial.

DISCUSSION

Talco raises three assignments of error.

By its first assignment, Talco contends that the trial court erred in failing to grant its motion for a new trial when good grounds for such exist. The issue, it argues, is whether the agreement expressed by Wilson that he would “not take a default judgment ... without giving you at least 10 days advance written notice” during their attempted resolution of the dispute was effectively abrogated by counsel’s subsequent letter which stated, “This matter has not been resolved. Please file your answer at this time.”

La. C.C.P. art. 1973 provides in pertinent part:

A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

In applying La. C.C.P. art. 1973, the court must examine the facts and circumstances of each individual case. When an examination of the facts convinces the trial judge that the judgment would result in a miscarriage of justice, a new trial should be ordered. Lamb v. Lamb, 430 So.2d 51 (La.1983); Hickman v. Wm. Wrigley, Jr. Co., 33,896 (La.App. 2 Cir. 10/4/00), 768 So.2d 812. Although the trial court has much discretion in determining if a new trial is warranted, an appellate court can set aside the ruling of the trial judge in a case of manifest abuse of that discretion. Lamb, supra; Hardy v. Kidder, 292 So.2d 575 (La.1973); Hickman, supra. Due to the general policy considerations weighing in the defendant’s favor that every litigant should be allowed his day in court, appellate courts must be 17particularly cautious in examining the circumstances underlying a properly confirmed default judgment when a timely motion for new trial is denied thereafter. Lamb, supra; Hickman, supra. He who seeks to have a default judgment against him set aside must allege and prove that he had good reasons for his nonappearance and failure to timely plead. Meshell v. Russell, 589 So.2d 86 (La.App. 2 Cir.1991).

The main thrust of Talco’s argument is that it had good reason for failing to file an answer. This reason, it argues, is that there was a “miscommunication” between Matysiak and Wilson. When Matysiak received the Oct. 19, 2007, letter from Wilson telling him to “file his answer” because the dispute had not been resolved, he testified that he understood this as “him (Wilson) asking me for what we were going to do to take care of the matter.” He believed that the parties were still negotiating. He thus responded by sending plaintiffs’ counsel a settlement offer on Oct. 27, 2009. He also testified that he did not understand the letter to indicate that the plaintiffs intended to take any adverse action against Tal-co, nor did he think the letter called for a responsive legal pleading to be filed at the courthouse.

Talco further argues that Matysiak is not an attorney and did not understand that the “answer” called for in the letter was an answer to the petition. Had he known that the prior agreement was off, Talco argues, Matysiak would not have continued to try to negotiate, but would have sent the file to Talco’s corporate counsel.

The plaintiffs challenge this explanation, noting that Matysiak is a | ¡^sophisticated businessman and understands legal pleadings. They also note that the offer was simply the same offer rejected more than a month earlier on September 6, 2007, implying that Talco was not serious about reaching a settlement.

In Meshell v. Russell, supra, a case cited by Talco, the plaintiff obtained a default judgment against Russell for failure to answer and appear in a lawsuit arising out of an automobile accident. Upon service of the petition, Russell immediately turned the petition over to his insurance agent, who assured Russell that they would provide a defense of the suit and file responsive pleadings. However, due to a misunderstanding between the home office and the agent/adjuster regarding who would engage an attorney to handle the case, no answer was filed. During this time the plaintiffs, by ex parte motion, had the action transferred from Sabine Parish to DeSoto Parish, where they subsequently obtained a default judgment against Russell that far exceeded his liability insurance coverage. Russell timely filed a motion for new trial, arguing that the failure to answer was not his fault, but was due to the miscommunication involving his insurer. The trial court denied the motion, noting that it would be a substantial miscarriage of justice to allow the defendants to profit from their own neglect. Russell appealed.

On appeal, we held that the trial court abused its discretion in denying the motion for a new trial on grounds that Russell was prejudiced by the plaintiffs failure to serve Russell with a copy of a motion to transfer the case from Sabine Parish to DeSoto Parish that stated that no answer had 19been filed as of that time, and which would have given Russell notice that something was wrong. We also found deficiencies in the evidence presented at the confirmation of the default, including unsworn medical reports and nursing expenses. Finally, we noted that Russell was prejudiced by the miscommunication between his adjuster and insurer, and therefore the trial court abused its discretion in denying the motion for a new trial. The default judgment was reversed by our court.

In Cashback Inc. v. Herring, 27,805 (La.App. 2 Cir. 2/28/96), 669 So.2d 693, we held that the trial judge abused his discretion in failing to grant a new trial where several factors indicated that the defendant was taking steps to defend the lawsuit and that a miscarriage of justice would result by depriving him of his day in court. These factors included the following:

1) Although defendant had not filed an answer in the case, he had attended a deposition and produced requested documents connected with the present action.
2) Plaintiffs counsel was aware the defendant was seeking representation, and intended to defend the suit.
3) A settlement offer regarding the suit was still on the table.
4) Plaintiffs counsel agreed with defendant’s attorney to an extension of at least two weeks in order to allow the defendant to seek the services of another attorney, and thus was aware the defendant intended to seek counsel and defend the suit.
5) The defendant diligently sought representation in this matter by contacting Byron Richie, who, in turn, prior to confirmation of the default, contacted plaintiffs counsel to discuss the case.
6) The trial judge specifically found that neither Richie nor plaintiffs counsel was at fault for their beliefs as to whether an extension had been secured. Therefore, there was a misunderstanding as to whether an additional extension was granted.

|inWe concluded that, under the circumstances, the defendant could reasonably have believed that his interests were protected, and that he had additional time to secure counsel and answer the suit. Although defendant’s initial counsel did not formally enroll as counsel, he handled the settlement negotiations and took steps to protect the defendant. The defendant contacted a new attorney, Mr. Richie, six days after dismissing his initial attorney. Richie sought an extension of time to answer the suit, but there was apparently a misunderstanding between the two attorneys; however, the defendant reasonably relied on an assurance that he still had time in which to file an answer. The facts in the record thus showed that the defendant was taking steps to defend the suit, and did not merely fail to file a timely an answer. Therefore, we concluded that a miscarriage of justice would result by depriving the defendant of his day in court.

In both Meshell, supra, and Cashback, supra, a miscommunication was only one among several facts that prejudiced the defendant and led the courts to conclude that it would be a miscarriage of justice to deny the defendants the opportunity to defend the respective suits. By contrast, in Hickman, supra, we found no abuse of discretion in the trial court’s decision to confirm a default judgment in favor of the plaintiff and deny the defendant’s motion for new trial where the miscommunication between the defendant and his agent for service of process, CT Corporation, caused a human error in failing to file an answer to the suit. The alleged miscommunication is not explained in the opinion; however, the defendant filed an affidavit not considered by the trial court attesting that its attorneys | nwere attempting to negotiate a settlement prior to the lawsuit. We found no error in the trial court’s failure to consider the affidavit.

In the instant case, we cannot conclude that a miscommunication actually occurred. At the very least, a reasonable construction of the sentence, “Please file your answer at this time,” should have put Matysiak on notice that the plaintiffs intended to proceed with the lawsuit and Talco needed to file an answer to the petition. While it is arguable that, standing alone, the word “answer” could be ambiguous, when the word is used in the context of the phrase, “file your answer,” the ambiguity vanishes. The expression “file your answer” clearly communicates the command to file a responsive pleading and cannot reasonably be confused with “respond” or “give your answer.”

We further conclude that the letter telling Talco to “file an answer at this time” served as sufficient written notice to Talco that it was at peril for any adverse action by the plaintiffs after 10 days. Talco contends that had Matysiak known that the letter demanded that a responsive pleading be filed or risk default, he would have turned it over to in-house counsel. On the contrary, we think a prudent corporate businessman would have recognized the import of the letter and taken the necessary steps to defend the lawsuit, including immediately turning the matter over to corporate counsel. His failure to take these steps was an error in judgment. Mere human error is not enough to show that a miscarriage of justice would result if a new trial is not granted. Hickman, supra. Accordingly, we do not find that the trial court abused its discretion in failing to grant a new trial on this basis. This | ^assignment of error lacks merit.

By its second assignment of error, Talco argues that obtaining the default judgment constituted an “ill practice” under La. C.C.P. art. 2004. The argument is that plaintiffs’ counsel lulled or misled Mr. Matysiak into thinking that the plaintiffs’ counsel would not seek a default judgment without giving 10 days’ notice of his intent to do so. Talco contends that plaintiffs’ counsel should have told Mr. Matysiak that it was no longer interested in negotiating a settlement and that it was proceeding with the suit, especially since Talco had given every indication that it wanted to resolve the matter.

Because we have concluded that the plaintiffs’ October 19, 2007, letter expressly and unambiguously informed Talco that it needed to file an answer to the petition, and therefore implicitly gave Talco the required notice that they intended to proceed with the lawsuit, the agreement to give 10 days’ notice prior to taking a default was both fulfilled and terminated by the letter. The agreement was fulfilled because the plaintiffs waited six more weeks for Talco to file an answer to the petition before entering a preliminary default on December 3, 2007. Since the purpose of the agreement was to allow Talco a temporary but indefinite extension to file its answer without risk of default while it attempted to resolve the matter, once Wilson informed Talco that no resolution to the dispute had been reached and it was time for Talco to file its answer, the agreement was effectively abrogated as to any future notices.

For this reason, we conclude that the facts of this case are not 11sanalogous to that line of “ill-practice” cases that would have required Wilson to give further notice that it intended to confirm the preliminary default. See, e.g. Power Marketing Direct Inc. v. Foster, 2005-2023 (La.9/6/06), 938 So.2d 662; Russell v. Illinois Central Gulf R., 96-2649 (La.1/10/97), 686 So.2d 817; Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La.1983). These cases stand for the proposition that an ill practice does not necessarily entail fraud or an intentional act, but also includes any improper practices or procedures which operate to prevent an opposing party from having an opportunity to appear or assert a defense and enforcement of the default judgment would be unconscionable and inequitable. Power Marketing Direct Inc. v. Foster, supra.

In Kem Search, supra, the court held that it was an “ill practice” when the plaintiff did not give the defendant notice that he intended to take a default judgment even though settlement negotiations were ongoing. The court found that the defendant was unfairly deprived of his opportunity to present his defenses and enforce-merit of the default judgment would be unconscionable and inequitable where the defendant failed to file a responsive pleading “due to his mistaken and not unreasonable impression that the plaintiff would give him an opportunity to file pleadings if his settlement overtures were rejected,” and it was the local court custom that an attorney should not confirm a default judgment without prior notice to the defendant. Id. at 1072 (emphasis ours).

In Russell, supra, the court held it was an ill practice for the plaintiffs attorney to obtain a default judgment without attempting to notify 114the opposing attorney when the opposing attorney has participated in the litigation proceedings and inadvertently failed to file an answer to the plaintiffs second amended petition. Id. at 819. The court also noted that the defendants were actively attempting to defend their rights. Cf Cashback, Inc., supra.

Most recently, in Power Marketing, supra, the court held that it was an ill practice under La. C.C.P. art. 2004 for the plaintiff to confirm a default judgment in a Louisiana suit without prior notice to the Ohio defendant who was actively participating in litigation against the plaintiff in an Ohio lawsuit arising out of the same contractual dispute. The court stated that Art. 2004 is broad enough “to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where enforcement of the judgment would be unconscionable and inequitable.” Id. at 673. The test endorsed by the court in Power Marketing was derived from Kem Search, supra, and Russell, supra, which found that it was an ill practice for an attorney to obtain a default judgment without attempting to notify the opposing attorney when the opposing attorney had “participated in the litigation proceedings” and the defendants were “actively attempting to defend their rights.” Id.

We conclude that the facts and circumstances in the cases discussed above are clearly inapposite to those in the instant case. In Russell, the defendant had appeared and filed answers to the previous petitions, but inadvertently failed to file an answer to the plaintiffs second amended 11fipetition. Clearly, he was actively involved in the litigation and attempting to defend his client’s rights. In Power Marketing, the defendants were actively engaged in litigation with the plaintiff in Ohio. The dispute arose out of a contractual agreement which had a choice of law and choice of forum clause that named Ohio as the proper forum to litigate. Thus, when the Louisiana defendant filed his own countersuit in Louisiana, he was in violation of the agreement and the Ohio defendant refused service. The Louisiana plaintiff subsequently confirmed a default judgment without giving notice to the Ohio defendant. The supreme court reversed on grounds that the defendant was actively involved in the litigation, albeit in Ohio.

Finally, in Kem Search, supra, Kem Search filed suit on open account against Sheffield for sums due. When Sheffield was served a copy of the petition in his Alexandria office on March 18, 1980, he telephoned Kem Search’s Baton Rouge attorney, which resulted in a letter agreement dated March 28, 1980, and which would allow Sheffield additional time to hire an attorney to file responsive pleadings. Sheffield named his probable counsel in the letter, but suggested that the parties meet in the next week to attempt to reach a settlement prior to filing an answer. Sheffield asked Kem Search’s attorney to advise him “[i]f you feel we should file responsive pleadings.” Kem Search’s attorney responded by letter stating that he “would like to have an answer filed in the record so we can proceed as rapidly as possible should our discussions fail to be productive.” Kem Search, supra, at 1069. The following month, on May 22, 1980, Kem Search’s attorney entered a preliminary default. Three weeks later, he confirmed the default without notifying Sheffield, although he did call the Baton Rouge attorney whom Sheffield said he would probably hire, but as of that time, that attorney had not heard from Sheffield. The court concluded that enforcing the default judgment would be unconscionable and inequitable because Sheffield’s failure to act was “due to his mistaken and not unreasonable impression that Kem Search’s attorney would give him an opportunity to file pleadings if settlement overtures were rejected.” Id. at 1071.

By contrast, in the instant case, we find that it was unreasonable for Matysiak or Talco not to file an answer after Wilson sent Matysiak a letter that unambiguously told him to do so. Additionally, according to Wilson, after rejecting Talco’s offer on September 6, 2007, he told Mr. Davis that he should turn the case over to an attorney. The October 19, 2007, letter followed. Matysiak responded with the same offer that was made on September 6. No further communications occurred thereafter. Wilson waited a month before entering a preliminary default and waited another 10 months before confirming the default. It is obvious that Talco was neither actively participating in the litigation, nor in settlement negotiations, nor attempting to defend, as opposed to avoid, the lawsuit. Under these circumstances, we do not find it unconscionable to enforce the default judgment. Accordingly, we reject Talco’s contention that confirmation of the default constituted an ill practice. This assignment is without merit.

Turning now to the damages, Talco contends that the damages are [ 17excessive and punitive. The trial court awarded total damages of $201,900, which included damages for restoration of the property, general damages for inconvenience and expert witness fees. After review of the facts upon which this award was based, we conclude that the general damage award of $1,000 per month for 86 months for Mrs. Pollock’s grandchildren, Matt Loe and Mike Loe, was excessively harsh, and therefore constituted an abuse of discretion.

General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty, including pain and suffering. Hunt v. Safeway Ins. Co., 35,806 (La.App. 2 Cir. 12/5/01), 804 So.2d 724. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114,114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Hunt, supra.

Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is | ^reduced to the highest amount the trier of fact could have reasonably awarded. Hunt, swpra. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the trier of fact. Locke v. Young, 42,703 (La.App. 2 Cir. 12/12/07), 973 So.2d 831; Manuel v. State Farm Mutual Automobile Co., 30,765 (La.App. 2 Cir. 8/19/98), 717 So.2d 277.

The basis for the general damages was the aggravation and inconvenience all the plaintiffs suffered as a result of this incident. In this instance, Mrs. Pollock, who was 92 years old, obviously suffered more inconvenience than the other plaintiffs because the property is hers. For this reason, we will not disturb the general damage award in her favor.

All of the other plaintiffs suffered the extreme inconvenience of living on partially flooded and damaged property, with access to their homes made generally inconvenient and sometimes impossible. Nevertheless, we conclude that $1,000 per month for this inconvenience is simply too speculative and excessive for this type of “pain and suffering.” 119Accordingly, we reduce the general damages to Mike Loe and Matt Loe from $1,000 per month to $500 per month for the 36 month period, which reduces the entire damage award by $36,000. The resulting damage award represents the highest amount of general damages the trial court could have reasonably awarded for the inconvenience caused in these circumstances.

We find no abuse of discretion for all other damages awarded in the judgment. Accordingly, those damages are affirmed.

CONCLUSION

For the foregoing reasons, we affirm the default judgment obtained by plaintiffs and affirm the denial of the motion for new trial. We amend that part of the general damage awards in favor of Matt Loe and Mike Loe, reducing those awards by half to $18,000 each. In all other respects, the judgment is affirmed. All costs are assessed against the appellant.

AFFIRMED AS AMENDED.

      . We also note that the trial court did not award Shirley Loe damages. We are unable to determine the reason for this from the record, and she did not answer this appeal.

      . There are few comparable property damage cases. In Collins v. City of Shreveport, 35,172 (La.App. 2 Cir. 10/31/01), 799 So.2d 630, the trial court awarded general damages of $7,500 for mental anguish where the plaintiff's home was flooded by rising water as a result of trash, debris and tree limbs accumulating in a poorly maintained city drainage ditch. We held that the damage award was not appropriate for mental anguish because there was no evidence of "psychic trauma,” as a result of the property damage. However, we held the award was appropriate compensation for inconvenience as a result of the flood. See also, Davis v. Culpepper, 34,736 (La.App. 2 Cir. 7/11/01), 794 So.2d 68 (Court awarded $2,500 in damages for inconvenience, mental anguish, and harassment aris-mg out of trespass, property damage to land and road built on plaintiff's property). In Boudreaux v. State, DOTD, 2004-0985 (La.App. I Cir. 6/10/05), 906 So.2d 695, the trial court awarded each of 1286 plaintiffs in a class action suit $32,552 for mental anguish (psychic trauma assumed under the circumstances) for flooding of their homes and property due to a negligently constructed bridge that disrupted the flood plain. However, in Booth v. Madison River Communications, 2002-0288 (La.App. 1 Cir. 6/27/03), 851 So.2d 1185, the court awarded $0 damages due to lack of evidence for mental anguish caused by trespass, invasion and destruction of landowner's property arising out of a communications company laying cable across his property-


text:
    H & K LIMITED OF LA, L.L.C., Plaintiff-Appellant v. MARTIN PRODUCING, L.L.C. and Chesapeake Energy Corporation, Defendants-Appellees.
    No. 46,338-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.
    J. Ransdell Keene, Shreveport, LA, for Appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, by Michael B. Donald, for Appellees.
    Before STEWART, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

| [H & K Limited of Louisiana, L.L.C. (“H & K”), appeals the grant of summary judgment in favor of Martin Producing, L.L.C. (“Martin” or “Lessee”) and Chesapeake Energy Corporation (“Chesapeake” or “Lessee”), (collectively, the “appellees”) by the First Judicial District Court, Parish of Caddo, State of Louisiana. For the following reasons, we affirm the trial court’s judgment.

Facts

The subject of this litigation is an oil, gas and mineral lease (the “Lease”) on an 86.4-acre tract of land in Caddo Parish, Louisiana. H & K Limited, the appellant, purchased the tract on September 10, 2008, from Eagle Water, Inc.

The chronology of events leading up to this litigation, however, had its genesis on March 14, 2005, when Eagle Water, Inc. entered into the Lease with Martin. In the Lease, Martin was granted the exclusive right to enter onto the land for the exploration and production of oil, gas, sul-phur and any other minerals. Subsequently, on March 29, 2005, Martin transferred and assigned all of its right, title and interest in the Lease to Chesapeake. The Lease had a primary term of three years, commencing on March 14, 2005.

Following the transfer of the Lease to Chesapeake, the following pertinent events occurred:

• December 6, 2007: The tract subject to the Lease was pooled and integrated into a single drilling and production unit (the “Drilling Unit”) and Chesapeake Operating, Inc. (“Chesapeake Operating”) was named operator of the Drilling Unit;
| ⅞* August 2007: Chesapeake Operating commenced vertical drilling on a well identified as the Chiggero 14-1, which was located on the Drilling Unit. No oil, gas or other minerals were produced by the well at that time;
• February 17, 2008: Chesapeake Operating drilled the horizontal portion of Chiggero 14-1 with continuous operations as reflected by the well activity report;
• May 14, 2008: The primary term of the Lease would have terminated unless it was maintained pursuant to other provisions of the Lease. Drilling of the Chiggero 14-1 horizontal well continued;
• June 12, 2008: The completion process for Chiggero 14-1 began and subsequently ended on June 18; and
• July 19, 2008: The Chiggero 14-1 well began production of natural gas in paying quantities which has continued since.

Upon its purchase of the tract, H & K requested that Chesapeake cancel the Lease, claiming it had terminated under its terms. Chesapeake refused. H & K filed suit against Martin and Chesapeake, with the sole issue being whether the term had been extended according to the Lease. Pertinent clauses of the Lease at issue in this appeal include the following:

2. Subject to the other provisions herein contained, this lease shall be for a period of three (3) years from the date hereof (called “primary term”) and as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith, or (2) it is maintained in force in any other manner herein provided.
⅝ ⅜ ⅜ ⅜ ⅜ ⅜
6. If within ninety (90) days prior to the end of the primary term, Lessee should complete or abandon a well on the lands described above or on land pooled therewith, or if production previously secured should cease from any cause, this lease shall continue in force and effect for ninety (90) days from such completion or abandonment or cessation of production. If at the expiration of the | .^primary term or at the expiration of the ninety (90) day period provided for in the preceding sentence, oil, gas, sulphur or other mineral is not being produced on said land or on land pooled therewith, but Lessee is then engaged in operations for drilling, completion or reworking thereof, or operations to achieve or restore production, or if production previously secured should cease from any cause after the expiration of the primary term, this lease shall remain in force so long thereafter as Lessee either (a) is engaged in operations for drilling, completion or reworking, or operations to achieve or restore production, with no cessation between operations or between such cessation of production and additional operations of more than ninety (90) consecutive days, or (b) is producing oil, gas, sulphur or other mineral from said land hereunder or from land pooled therewith.

The parties filed cross motions for summary judgment, and after consideration of both, along with an analysis of the Lease, the trial court granted the motion by Martin and Chesapeake, interpreting the Lease in their favor. This appeal by H & K ensued.

Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Palmer v. Martinez, 45,318 (La.App.2d Cir. 07/21/10), 42 So.3d 1147, units denied, 2010-1952, 2010-1953, 2010-1955 (La.11/05/10), 50 So.3d 804, 805. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. In re Clement, 45,454 (La.App.2d Cir.08/11/10), 46 So.3d 804. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment will be granted “if |4the 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 judgment as a matter of law.” La. C.C.P. art. 966(B); Palmer, supra.

On the motion for summary judgment, the burden of proof is on the movant. La. C.C.P. art. 966. When the movant, however, will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, he is not required to negate all the essential elements of the adverse party’s claim, action or defense. Rather, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Swillie v. St. Francis Medical Center, 45,543 (La.App.2d Cir.09/22/10), 48 So.3d 317.

The general rule prevailing with respect to the maintenance of oil, gas and mineral leases is that the drilling of a well on the premises covered by the lease during the primary term of the lease, assuming such well produces in paying quantities, maintains the lease as to all of the lands covered by the lease. Will-Drill Resources, Inc. v. Huggs Inc., 32,179 (La.App.2d Cir.08/18/99), 738 So.2d 1196, writ denied, 1999-2957 (La.12/17/99), 751 So.2d 885; La. R.S. 31:114. As to the term of a mineral lease, “The interest of a mineral lessee is not subject to the prescription of nonuse, but the lease must have a term.” La. R.S. 31:115.

H & K raises two assignments of error on its appeal of the judgment granting appellees’ motion for summary judgment. First, it argues that the |fitrial court erred in granting summary judgment in favor of Martin and Chesapeake, specifically in its determination that the language of the Lease provided for two different dates for termination of the Lease. Second, it argues that the Lease was ambiguous with reference to the termination date, and it must be construed against the lessee who prepared the contract. After a de novo review of the record, we conclude that H & K’s argument is without merit. The Lease is not ambiguous and the trial court was not in error in its interpretation in the appellees’ favor.

The crux of H & K’s argument is that the original vertical well was abandoned on October 8, 2007, which resulted in the termination of the Lease under the first sentence of paragraph 6 of the Lease. H & K maintains that Dave Whitman, the District Manager for Chesapeake, stated that the initial vertical well was drilled and completed, then ultimately “abandoned” on October 8, 2007. H & K also alleges that according to Whitman’s testimony, no drilling or operations occurred until more than 90 consecutive days later. H & K submits that 90 days from October 8, 2007, would be January 8, 2008, and that Chesapeake Operating did not move back onto the site until mid-February 2008 when it began horizontal drilling operations.

Initially, we note that H & K’s characterization by Whitman that the vertical well was “abandoned” is incorrect. He described that operations on the vertical well were “suspended” and explained that the vertical well was part of the entire operation of completing Chiggero 14-1. As explained by Whitman:

The Chiggero well was drilled vertically as a pilot well to obtain information. We left it in a state that we could either | ^complete it vertically ... or we could take it horizontally if that’s what results told us.
We drilled and completed some other wells after the pilot hole was drilled that told us horizontal was the way to complete it.

Regardless, we consider the drilling of the vertical well on the tract as irrelevant as to any determination regarding the effect on the term. The vertical well was drilled during the primary term of the Lease, which explicitly provided for a term of three years from March 2005 and “as long thereafter as (1) oil, gas, sulphur or other mineral is produced from said land hereunder or from land pooled therewith, or (2) it is maintained in force in any other manner herein provided.” The unambiguous provisions of the Lease state that it would be maintained up to three years (i.e., until March 14, 2008). The vertical well was drilled during the primary term; however, under this Lease Chesapeake had no obligation to drill at all during the primary term of the Lease. See La. R.S. 31:115. Moreover,' even if the vertical well was considered “abandoned” and the first sentence of paragraph 6 was considered, the “abandonment” occurred on October 8, 2007, which date is well over the required 90 days prior to the end of the primary term of the Lease. Thus, the first sentence of paragraph 6 is inapplicable to these particular facts.

Furthermore, only after the primary term of the Lease had run (i.e., “thereafter”), would the two alternatives delineated in paragraph 2 be examined to determine whether the primary term could be extended. At that point (after the primary term has expired) would consideration of Paragraph 6 be made. We note that it is an undisputed fact that Chiggero 14-1 was not 17producing before the expiration of the term, making that alternative for extending the term of the Lease inapplicable and necessitating a determination whether the primary term of the Lease would be “maintained in force in any other manner herein provided.”

Paragraph 6, as stated herein, provides unambiguous provisions for the extension of the primary term beyond three years. The language of the Lease is clear, and the trial court made the correct linguistic determination. The second sentence of paragraph 6 is disjunctive and the action by Chesapeake Operating served to extend the term of the Lease. It is undisputed that Chesapeake Operating commenced horizontal drilling on the tract on February 17, 2008, which date is clearly prior to the expiration of the primary term of the Lease; nor is it disputed that Chesapeake Operating was engaged in continuous operations of the horizontal well through its completion. Therefore, because on March 14, 2008 (the date upon which the primary term would have expired) Chesapeake Operating was “then engaged in operations for drilling, completion or reworking, or operations to achieve or restore production, with no cessation between operations or between such cessation of production and additional operations of more than ninety (90) consecutive days,” the Lease was extended beyond the primary term by the operations and production that occurred. This determination by the trial court was not in error.

Conclusion

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Martin Producing, L.L.C. and Chesapeake REnergy Corporation is affirmed. All costs of this appeal are assessed to H & K Limited of Louisiana, L.L.C.

AFFIRMED.