author: STEWART, J.

text:
    EOG RESOURCES, INC. Plaintiff-Appellee v. Jerry Lee HOPKINS, et al, Defendants-Appellants.
    No. 48,577-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 27, 2013.

      Snellings, Breard, Sartor, Inabnett & Trascher, Monroe, LA, by Clara M. Sartor, Wendy E.W. Giovingo, for Defendants-Appellants, Ford Heirs and Jerry Lee Hopkins.
    Breedlove Law Firm, by Pamela N. Breedlove, Shreveport, LA, for Defendants-Appellants, Osborne Heirs.
    Hargrove, Smelley, Strickland, & Langley, Shreveport, LA, by Glenn L. Langley, Julianna P. Parks, for Plaintiff-Appellee, Premier Natural Resources II.
    May and Stokes, by Douglas L. Stokes, Jr., Jonesboro, LA, for Defendants-Appel-lees, Johnny Lee Osborne, Alverne Osborne, Barnes and Linda Osborne Woods.
    Donna Osborne McKenzie, In Proper Person.
    McMichael Medlin D’Anna Wedgeworth & Lafargue, Shreveport, LA, by James C. McMichael, Jr., for Defendants-Appellees, Big Sky Mineral Trust, Petro Partners Limited, Southwest Petroleum Co., LP and S & C Properties.
    Culpepper & Carroll, Jonesboro, LA, by Bobby L. Culpepper, for Defendant-Ap-pellee, Clifford Osborne, Jr.
    Before WILLIAMS, STEWART and MOORE, JJ.
   STEWART, J.

| tin this concursus proceeding, Defendants/appellants, the Osborne Heirs, appeal a judgment that they failed to meet their burden of proving ownership by 30-year acquisitive prescription of an undivided 1/2 interest in property located in Jackson Parish, Louisiana. Defendants/appellants, the Ford Heirs, appeal that portion of the judgment finding that the Clifford Osborne Heirs met their burden of proving ownership by 10-year acquisitive prescription of 10 acres of the property in Jackson Parish, Louisiana. For the reasons stated herein, the judgment of the trial court is affirmed in part and reversed in part and the matter is remanded to the trial court for further proceedings.

FACTS

This proceeding involves ownership of gas royalties derived from a tract of land comprising the following (approximate) 100 acres in Jackson Parish, Louisiana (“the disputed property”):

The East Half of the Northeast Quarter and the North Half of the Northwest Quarter of the Northeast Quarter of Section 24, Township 16 North, Range 3 West, Jackson Parish, Louisiana.

The land was acquired by Emanuel Osborne, a widower, after his remarriage to Organ Ford, a widow, on July 1, 1900. Emanuel had 10 children from his prior marriage and Organ had 15 children from her prior |2marriage. The couple did not have children together. Organ died in 1927 and Emanuel died in 1938. No succession proceedings were filed for either of them. The dispute over the ownership of the disputed property (mineral interest) is between the two branches of the family, the Osborne Heirs and the Ford Heirs.

EOG Resources, Inc. (“EOG”), was the operator of the LOCA RA SUG Unit containing the disputed property, which produced several successful wells. The Osborne Heirs claim ownership by 30-year acquisitive prescription of the undivided 1/2 interest that would have devolved to the Ford Heirs. In addition, there are two subparts of the disputed property that are claimed by certain of the Osborne Heirs. First, the Clifford Osborne Heirs (four of them) claim ownership by 30-year acquisitive prescription of a certain 20 acres referred to as “Clifford’s Farm.” Second, William and Rebecca Hopkins (William is an Osborne Heir) claim ownership via 10-year acquisitive prescription of a 20-acre tract referred to as the “Fenced Parcel.” There are also two other subparts referenced in the record, the “Lost 20” acres, which are 20 acres that were inexplicably dropped from the tax rolls of Jackson Parish, and the South 46 acres.

Breakdown of the Disputed Property:

In 1901 Emanuel purchased 60 acres-the SE 1/4 of the NE 1/4 and the S 1/2 of the NE 1/4 of the NE 1/4 of Section 24, Township 16 N, Range 3 W. This 60 acres includes a 40-acre parcel allegedly transferred from IsEmanuel to his son Amos, discussed infra, and the Lost 20 (hereinafter referred to as “the 60 acres”). Aecord-ing to the Osborne Heirs, this acreage was transferred into their names in 2001.

There is also a 20-acre parcel in the N 1/2 of NE 1/4 of NE 1/4 that the Osborne Heirs contend (on appeal) was not part of the community of Emanuel and Organ because there is no evidence of how Emanuel acquired of the property. Amos, however, according to the Osborne Heirs, purchased this 20-acre parcel (hereinafter referred to as “the Fenced Parcel”) at tax sale in 1932. It was subsequently transferred to another Osborne Heir by partition in 1981 and then purchased by the Hopkins in 1995 and 1996. Mr. Hopkins testified that he fenced the entire parcel more than 10 years prior to trial.

In 1907 Emanuel purchased the NW 1/4 of the NE 1/4 of Section 24, Township 16 N, Range 3 W, containing 40 acres. Only 20 of this 40-acre parcel are in the unit at issue in this case. This is the 20 acres claimed to be Clifford’s Farm (hereinafter referred to as “Clifford’s Farm”).

Together, the 60 acres (40 transferred to Amos in 1901 and the Lost 20), plus the 20 acres ultimately sold to the Hopkins called the Fenced Parcel, plus the 20 acres referred to as Clifford’s Farm, comprise the 100 acres of disputed property.

EOG filed this concursus proceeding on February 18, 2010, to determine ownership of the undivided 1/2 interest in the mineral rights on the disputed property. EOG named 229 defendants in the original petition and deposited $2,751,551.32 in the registry of the court. Again, it was undisputed that the Osborne Heirs owned one undivided 1/2 interest. The | ¿instant dispute is whether the Ford Heirs owned the other undivided 1/2 interest in the disputed property or whether the Osborne Heirs, the Clifford Osborne Heirs and/or Mr. Hopkins had acquired ownership interest by 30-or 10-year acquisitive prescription. By agreement, the trial was bifurcated and the issue of ownership of the property was tried on May 15-16, 2012.

ACTION OF THE TRIAL COURT

The trial judge stated that all parties agree that the disputed property was acquired during the marriage and, therefore, was community property with Organ and Emanuel each owning an undivided 1/2 interest in it. However, the Osborne Heirs claim on appeal that the Fenced Parcel was never part of the community and, as stated above, was bought by Amos at tax sale. In any event, the trial judge found that, on Emanuel’s death, an undivided 1/2 interest in the disputed property devolved to the Osborne Heirs. The record contains no evidence that any portion of the disputed property was transferred by Organ during her lifetime. Thus, following Organ’s death, the remaining undivided 1/2 interest devolved to the Ford Heirs and, together, the two sets of heirs became co-owners of the property. Debra Reeks, an independent abstractor, provided uncontradicted testimony that the disputed property was in the name of Em-anual Osborne during his marriage to Organ and that there had been no transfers of the property by any of the Ford Heirs except for the transfer by several Ford Heirs to C.C. |fiCopeIand, which was later purchased at tax sale by T.S. Pesnell, discussed infra.

In thoughtful and thorough reasons for judgment, the trial judge outlined the evidence supporting her conclusion that the Osborne Heirs failed to satisfy their burden of proof that they had acquired ownership of the undivided 1/2 interest that they originally co-owned with the Ford Heirs regarding 90 of the 100 acres. The trial judge found that the Clifford Osborne Heirs met their burden of proving ownership by 30-year acquisitive prescription of 10 acres (not the 20 they sought) known as Clifford’s Farm. The acreage of Clifford’s Farm was reduced based on the trial court’s finding that the 20 acres were not clearly delineated; however, according to the trial judge, 10 of the 20 acres appeared on the map and survey to be carved out and in use by the Clifford Osborne Heirs (hereinafter referred to as “Clifford’s 10 Acres”). This appeal by both sets of hems ensued.

DISCUSSION

As previously stated, on appeal, the Osborne Heirs challenge the trial judge’s ruling that they failed to satisfy their burden of proof with regard to the 60 Acres, the Fenced Parcel and the eastern 10 acres of Clifford’s Farm. Specifically, the Osborne Heirs assign 12 errors, challenging various factual findings of the trial judge, all of which are addressed herein. The Ford Heirs appeal the portion of the judgment awarding the Clifford Osborne Heirs ownership of Clifford’s 10 acres.

\ «Legal Principles

Acquisitive Prescription of 10 Years:

Ownership and other real rights in immovables may be acquired by the prescription of 10 years. La. C.C. art. 3473. Possession of immovable property for 10 years in good faith and under just title is required to obtain ownership. La. C.C. art. 3475; Jackson v. Herring, 46,870 (La.App.2d Cir.1/25/12) 86 So.3d 9; Cockerham v. Cockerham, 44,578 (La.App.2d Cir.8/19/09), 16 So.3d 1264. This allows a person who purchases immovable property by a deed translative of title and who has a reasonable and objective belief that he is acquiring valid title to the property to secure the title through peaceable possession for 10 years when there has not been any disturbance by the true owner. Jackson, supra.

For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. La. C.C. art. 3480, The trier of fact must ascertain in the light of objective considerations whether a reasonable person in the position of the possessor could believe himself to be the owner. Comment (c) to art. 3480. Although good faith is presumed, this presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses. See La. C.C. art. 3481; Cockerham, supra.

A just title is a juridical act that is sufficient to transfer ownership or another real right. La. C.C. art. 3483. The act must be written, valid in form and filed for registry in the conveyance records of the parish in which the immovable is situated. Id.; Cockerham, supra.

11Acquisitive Prescription of 30 Years:

One may acquire ownership by acquisitive prescription of 30 years without just title or good faith possession. La. C.C. art. 3486; Jackson, supra; Cockerham, supra. For acquisitive prescription without title, possession extends only to that which has been actually possessed. La. C.C. art. 3487; Marks v. Zimmerman Farms, L.L.C., 44,279 (La.App.2d Cir.5/20/09), 13 So.3d 768; Greengrove Missionary Baptist Church v. Cox, 42,418 (La.App.2d Cir.9/19/07), 966 So.2d 707, writ denied, 2007-2064 (La.12/14/07) 970 So.2d 537.

Possession must have been continuous, uninterrupted, peaceable, public and unequivocal. La. C.C. arts. 3435 and 3476; Pace v. Towns, 33,071 (La.App.2d Cir.4/5/00), 756 So.2d 680. What constitutes adverse possession depends on the type or nature of the property and must be determined based on the facts of each case. Liner v. La. Land & Exploration Co., 319 So.2d 766 (La.1975); Ryan v. Lee, 38,352 (La.App.2d Cir.4/14/04), 870 So.2d 1137, writ denied, 2004-1531 (La.10/1/04), 883 So.2d 991. In other words, activities showing possession of agricultural land will be different from those activities commensurate with possession of woodlands or swamplands. Id.

Generally, an owner in indivisión cannot acquire by prescription the rights of his co-owners in the property held in common. Possession by one co-owner is generally considered as being exercised on behalf of all co-owners. Cockerham, supra, and cases cited therein. A well-settled exception to the general rule is recognized in those instances where the | ^possessing co-owner gives notice to the other co-owners that he intends to possess as owner adversely and contrary to the common interest. Under such circumstances, one owner in common may prescribe against a co-owner provided such possession be clearly hostile and notice be given thereof. Cockerham, supra, citing Franks Petroleum, Inc. v. Babineaux, 446 So.2d 862 (La.App. 2d Cir.1984), and Givens v. Givens, 273 So.2d 863 (La.App. 2d Cir.1973), writ refused, 275 So.2d 868 (La.1973). Actual notice to other co-owners of the possessing co-owner’s intent to possess for himself is not necessary. Id.

The exception to the general rule is reflected in La. C.C. arts. 3439 and 3478. Article 3439 provides that a co-owner, or his universal successor, commences to possess for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner. Article 3478 provides that a co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. In determining whether a particular case falls within the exception rather than the general rule, this court has held that mere occupancy, use, payment of taxes and similar acts of possession will not suffice to constitute notice of adverse possession to an owner in common. Givens, supra.

The notion of constructive possession is applicable to both 10- and 30-year acquisitive prescription. La. C.C. art. 3426, comment (c). One who possesses a part of an immovable by virtue of title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses. La. C.C. arts. |c)3426 and 3487. Actual possession must be either inch-by-inch possession or possession within enclosures. La. C.C. art. 3426, comment (d). According to well-settled Louisiana jurisprudence, an enclosure is any natural or artificial boundary. Brunson v. Hemler, 43,347 (La.App.2d Cir.8/13/08), 989 So.2d 246, writ denied, 2008-2297 (La.12/12/2008), 996 So.2d 1119; Secret Cove, L.L.C. v. Thomas, 2002-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, writ denied, 2004-0447 (La.4/2/04), 869 So.2d 889, citing La. C.C. art. 3426, comment (d). The party who does not hold title to the disputed tract has the burden of proving actual possession within enclosures sufficient to establish the limits of possession with certainty, by either natural or artificial marks, giving notice to the world of the extent of possession exercised. Brunson, supra.

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds. La. C.C. art. 794; Loutre Land & Timber Co. v. Roberts, 2010-2327 (La.5/10/11), 63 So.3d 120; Jackson, supra.

The party asserting acquisitive prescription bears the burden of proving all the facts that are essential to support it, including possession for the requisite years. McClendon v. Thomas, 1999-1954 (La.App. 1st Cir.9/22/00), 768 So.2d 261. Whether the disputed property has been possessed for 30 years without interruption is a factual issue and will not be disturbed on appeal unless there is a showing of abuse of discretion orjj^manifest error. Garner v. Holley, 42,477 (La.App.2d Cir.10/3/07), 968 So.2d 234. In additional, boundary location is a question of fact, and the determination of its location by the trial court should not be reversed absent manifest error. Secret Cove, L.L.C., supra.

The Disputed Property

In the case sub judice, none of the heirs attempted to prove an unbroken chain of valid transfers from the sovereign or a common ancestor, but, instead, sought to demonstrate that they acquired ownership of the disputed parcel(s) by either 10- or 30-year acquisitive prescription. We now turn to the disputed parcels and will address each in turn.

The 60 Acres (40 plus the Lost 20)

Recall that the 60 acres comprising the 40 acres allegedly transferred in 1901 from Emanuel to his son, Amos, and restated in the 1931 deed, plus the Lost 20.

First, the judge correctly concluded, as did the parties, that it was not possible to show any logical title to the disputed property from the public records because the filings were sporadic and incomplete. Second, we find no error in the trial judge’s conclusion that the recorded instruments fail to supply the notice to co-owners required for a 30-year acquisitive prescription claim. Specifically, the trial judge discredited as ambiguous the 1931 deed of 40 acres from Emanuel to Amos. She noted that the deed stated that the original 1901 deed had been lost and that the 40 acres had been acquired by Emanuel while his first wife was alive. The Osborne Heirs argue that the 1931 deed is a reformation of the 1901 deed; however, the judge found the 1931 deed to be ambiguous as to what 40 acres was conveyed and Ininsufficient to serve as notice to the Ford Heirs that the Osborne Heirs were claiming adverse possession through Amos. A review of the 1931 deed reveals that it does not contain an adequate recitation of the terms of the alleged 1901 deed to constitute a reformation. In addition, we find that the trial judge’s finding that the 1931 deed is insufficient to provide the notice required to be a reasonable finding.

The Osborne Heirs also pointed to a 1934 deed from Amos to four of the Ford Heirs covering 50 acres in Section 18, T16N, R2W, which they characterize as a “buy-out” of the Ford Heirs’ interest in the disputed property. The Osborne Heirs assert that the deed represents the Ford Heirs’ acceptance of the 50 acres for the stated consideration of $70 and “a partition among the heirs of Manual Osborne and Oragan Ford Osborne, both deceased.” However, the trial judge discounted the import of this deed because only four of the Ford Heirs were named and the property described is not the disputed property. We agree that this document transferring property in Section 18 does not put all of the Ford Heirs on notice that the Osborne Heirs were asserting ownership of the disputed property in Section 24. Specifically, we note that the deed states consideration of some other “partition,” but that partition is not defined in terms of parties or land. There is no indication that the land partitioned, if any, was the disputed property in Section 24.

The Osborne Heirs also introduced three other partition documents as evidence of their notice to the Ford Heirs that they intended to claim ownership of the disputed property: 1) 1964 partition among six heirs including a part of the disputed property, 2) 1970 partition among nine heirs | ^including a part of the disputed property and 3) a 1981 partition among the Osborne Heirs including a part of the disputed property. The trial judge concluded that these partitions were problematic because none of them included all of the disputed property and only the third one included all of the heirs. She also noted that, prior to these partitions, in 1964, some of the Ford Heirs transferred their interests in parts of the disputed property to one C.C. Copeland. The judge concluded that the Ford Heirs (at least the seven involved in the transfers to Copeland) believed that they had ownership in the disputed property. This finding is supported by the record. At best, these instruments illustrate much activity and confusion as to the ownership of the disputed property.

Finally, the judge noted that there were other recorded instruments such as sales of mineral and timber leases executed over many years by both Osborne and Ford Heirs, which run counter to any argument of ownership by acquisitive prescription. This finding is also supported by the documentary evidence. In short, the record does not contain evidence by recorded instrument of notice to the Ford Heirs that the Osborne Heirs intended to own the 60 acres contrary to the common interest of the Osborne and Ford Heirs. Cockerham, supra.

In addition, we find no manifest error in the trial judge’s conclusion that the Osborne Heirs failed to provide evidence of overt, unambiguous acts hostile to the Ford Heirs’ interest that would, in any way, support a finding of adverse possession of 80 years. Franks Petroleum, Inc., supra; Givens, supra. The Jackson Parish tax assessor, Eddie Gatlin, testified that none of the various parcels making up the 100 acres of disputed property were 113assessed to the Ford Heirs. However, Mr. Gatlin also testified that the tax rolls are not definitive evidence of ownership. Testimony was adduced from' several Ford Heirs that money was collected from them for the payment of taxes on the disputed property and each Ford Heir testified that he or she believed that taxes on the property were being paid on their behalf. In addition, several parcels were listed on the tax rolls under the names C.C. Copeland and T.S. Pesnell, who were vendees of certain of the Ford Heirs. Furthermore, regarding the Lost 20, Mr. Gatlin could not explain why this acreage was actually dropped from the tax rolls for many years. The tax rolls, by themselves, do not establish notice sufficient to support a claim of adverse possession as against co-owners. Givens, supra.

Regarding activity on the 60 Acres, the trial judge made a considered comparison of five aerial photographs of the disputed property in 1955, 1960, 1967, 1980 and 2010, finding little guidance as to use of the property. Our review of these exhibits leads us to a similar conclusion. While there are slight changes in the gradation of coloring indicating some clearing such as the cutting of timber, there are no indications of continuous use of any particular areas of the property.

In summary, the trial judge held that the Osborne Heirs, generally, failed to satisfy their burden of proof of ownership of the 60 acres by 30-year acquisitive prescription. After an exhaustive review of the record and exhibits, we find no manifest error in the trial judge’s findings and no abuse of discretion in her conclusion. Gamer, supra.

The Fenced Parcel

114The 20 acres comprising the Fenced Parcel was claimed by the Hop-kinses under 10-year acquisitive prescription. As previously noted, the element of just title was not disputed because Mr. Hopkins obtained the property via warranty deeds in 1995 and 1996. Next, the judge correctly noted that good faith is presumed; therefore, the Ford Heirs had the burden of proving that the Hopkins were in bad faith while the Hopkins had the burden of proving continuous, uninterrupted, peaceable, public and unequivocal possession for 10 years. Again, Mr. Hopkins acquired the property via warranty deed and there was no credible evidence presented by the Ford Heirs that he did not “reasonably believe, in light of objective circumstances, that he was the owner” of the propei'ty following the sale. La. C.C. art. 3480. Therefore, the trial judge was not manifestly erroneous in concluding that the Ford Heirs failed to rebut the presumption of good faith on the part of the Hopkins.

Likewise, however, there was no credible evidence presented by the Hopkins that they enjoyed exclusive, peaceful, public, uninterrupted, continuous and unequivocal possession for 10 years prior to the filing of the concursus proceeding. Mr. Hopkins testified that he fenced the parcel shortly after he purchased it in 1995 and 1996. The trial judge elected to discredit this testimony in light of testimony from Robert Davis, a forester, who cruised the property in 1999 and did not see evidence of a fence. In addition, a survey completed in 2000 by William T. Lowe does not show a fence around the parcel. Admittedly, a 2010 survey by Messinger & | ^Associates does reveal a fence around the parcel, but there is no indication from the survey or any testimony as to when the fence was constructed. We will not disturb credibility determinations of the trial judge. Rosell v. ESCO, 549 So.2d 840 (La.1989). The record reasonably supports the trial judge’s conclusion that the Hopkins failed to prove that they possessed a delineated parcel for 10 years prior to trial.

Clifford’s 10 Acres

The Clifford Osborne Heirs testified that Clifford and his sister Donisha used this parcel of 20 acres as a farm. There are two structures on the parcel. The first structure is located in the western portion of the parcel, was historically occupied by Clifford and, according to the testimony, appeared to be occupied at the time of trial. The second structure is located in the eastern portion, was historically the residence of Donisha, but was abandoned at the time of trial. There was testimony that there was a smoke house and a “green patch,” or garden, on the property and that, historically, Clifford had areas fenced for horses and cows. Based on this testimony, the trial judge found that the Clifford Osborne Heirs met their burden of proving possession for 30-year acquisitive prescription, but only for the western 10 acres of the 20-acre parcel. The trial judge referred to the survey by Messinger & Associates superimposed onto the aerial photograph to carve out the portion of the 20 acres that appeared to have been possessed by Clifford Osborne. The Clifford Osborne Heirs concur with the trial judge’s finding that they established ownership of the west 10 acres of this parcel. However, they argue that the judge erred in not finding the same continuous use and possession of the east 10 acres of the parcel.

|1fiThe Ford Heirs argue that the record is replete with testimony that members of both families used the property encompassing the 20 acres known as Clifford’s Farm for hunting, fishing, running dogs and other recreational activities. They contend that the record contains no evidence that there was uninterrupted possession of the land by either family. Furthermore, they assert that any fencing on the property was for the containment of livestock for convenience and was not used as a boundary or to prevent entry of other co-owners. Simply stated, the Ford Heirs argue that the Clifford Osborne Heirs presented no proof of public, unequivocal possession. The Ford Heirs assert that they contributed to the payment of ad valorem taxes on the property, hunted and fished on the property, cut timber and executed mineral leases covering the property. They further note that the Osbornes were aware of the Fords’ participation in a hunting club on the property and that, at times, Gilbert Jackson drove logging trucks on the property. In sum, the Ford Heirs argue that the evidence simply does not support a finding that the Clifford Osborne Heirs established ownership of the 10 acres awarded to them as Clifford’s Farm by 30-year acquisitive prescription. We agree.

Much of the testimony in the record is confusing and unclear due to the many years that have passed and the difficulty on the part of the witnesses to recall dates and accurately read the survey and locate certain places on the aerial photograph. What is clear from the testimony taken as a whole, however, is that members of both the Osborne and Ford families utilized the disputed property, including Clifford’s 10 acres, for purposes commensurate with the nature of the property. Gilbert Jackson and Larry 117Wiley, both Ford Heirs, hunted and fished the property without restriction. Members of both families participated in a hunting club on the property. Mr. Wiley testified that he has a deer stand on Clifford’s 10 acres and located the stand on the aerial photograph. None of the witnesses indicated that anyone, at any time, denied them permission to hunt any of the disputed land. In addition, Mr. Jackson (Ford Heir) testified that he asked permission as a courtesy to haul cut timber over the area around Clifford’s residence, but he also testified that he believed the Ford Heirs owned an interest in the land and his request was only that, a courtesy to Clifford. Based on this record, we find that the trial judge erred in concluding that the Clifford Osborne Heirs proved continuous, uninterrupted, peaceable, public and unequivocal possession of Clifford’s 10 acres. La. C.C. arts. 3435 and 3476; Pace, supra.

Even if there had been adequate possession, however, we further find that the Clifford Osborne Heirs failed to prove a delineated boundary sufficient to support the award of 10 acres. Frank Messinger, who completed the survey of the disputed property, testified that there were no “posted” signs or wildlife management signs on the property. He further testified that no part of Clifford’s Farm, or the smaller portion (Clifford’s 10 acres), was fenced. The aerial photograph does indicate a cleared portion in the western half of the Clifford’s Farm 20 acres, but there are no boundaries, fences, markers or any evidence of current or former use that would support the carving out of a specific portion of the property as having been continually possessed for 30 years. The finding to the contrary is manifestly erroneous.

|isln summary, the totality of the evidence presented in this case, both documentary and testimonial, reveals that both Osborne and Ford Heirs have enjoyed, used and “possessed” the disputed property over the past decades in ways that are commensurate with the nature of the property, i.e., hunting, fishing, timber cutting, and oil and gas leasing. Liner, supra. The Osborne Heirs failed to meet their burden of proving ownership by acquisition prescription of any portion of the disputed property.

DECREE

For the foregoing reasons, the judgment of the trial court awarding to the Clifford Osborne Heirs an undivided one-half interest in the west 10 acres of the N/2 of NW/4 of NE/4 of Section 24, T16N, RBW, Jackson Parish, Louisiana is reversed. Judgment is rendered in favor of the Ford Heirs recognizing them as co-owners with the Osborne Heirs of these aforementioned 10 acres. The judgment as to the remaining 90 acres, recognizing the Ford Heirs as co-owners with the Osborne Heirs, is affirmed. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of appeal are to be borne by the Osborne Heirs.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . The parties refer to the disputed property as 106 acres; however, apparently, there was some property also owned by the Osbornes that continued into adjacent sections — other than that which is at issue herein. The property described in the petition comprises 101.6 acres. The parties agree that the disputed property is, more or less, 100 acres.

      . Emanuel’s first name is spelled various ways throughout the record, including Emanuel, Emanual, E. Manual and Manual. For clarity, we will use the spelling Emanuel throughout this opinion.

      . Emanuel’s wife’s first name is also spelled various ways throughout the record, including Organ, Argon and Oregon. For clarity, we will use the spelling Organ throughout this opinion.

      . On the morning of trial, due to an assignment after the petition was filed, Premier Natural Resources II, LLC, was substituted as the party plaintiff. Premier has filed a brief on appeal indicating that it is merely the stakeholder herein and makes no argument on the merits of the case.

      . We are not persuaded by the Osborne Heirs’ attempt on appeal to claim that certain portions of the disputed property was not actually in the community of Emanuel and Organ. The trial judge noted that this was not a disputed issue and the Osborne Heirs admitted the same in their post-trial brief to the trial court.

      . We note that the action was bifurcated by agreement of the parties and the trial judge, with the issue of ownership tried first. Even though the action was divided, the resulting determination of ownership of the stake effectively terminates the litigation, leaving only the computation and distribution of the stake, Therefore, the judgment deciding ownership js ripe for review on appeal,

      . Note that, in light of our earlier findings regarding the incomplete public records and title, we conclude that Mr. Hopkins did not receive clear title to the Fenced Parcel contrary to the Osborne Heirs’ argument.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Darrell Toubya THOMAS, Appellant.
    No. 48,530-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 4, 2013.

      J. Ransdell Keene, Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Jason T. Brown, Jordan B. Bird, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ. STEWART, J.
   STEWART, J.

| ,The defendant, Darrell Toubya Thomas, was convicted of attempted first degree murder, pled guilty as a second-felony habitual offender, and was sentenced to 55 years’ imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence. On appeal, the defendant raises assignments of error concerning the denial of his motion for a new trial and ineffective assistance of counsel in failing to properly investigate the case and discover the real perpetrator of the crime. Finding no error in the trial court’s denial of a new trial and finding that the claim of ineffective assistance of counsel may be raised in post-conviction relief proceedings, we affirm the defendant’s conviction and sentence.

FACTS

The following facts were established by the testimony at trial. In the early evening hours of December 13, 2010, brothers Traavis Harris (“Traavis”) and Stephan Harris (“Stephan”) drove up to the Take-a-Bag store, a/k/a Mark Scroggins’ store, on Milam Street. Shortly after, they saw the defendant jump out of a black SUV and their vehicle was hit by gunfire. Traavis, who had been in the passenger seat and was just outside the vehicle when the shooting began, was shot in the right leg. Stephan immediately drove off and took Traavis to the nearest hospital, Willis-Knighton North on Greenwood Road, where he was stabilized and then transferred to Louisiana State University Medical Center (“LSUMC”) for surgery to amputate his leg. At trial, both men testified that the defendant was the shooter, that they grew up in the same neighborhood, and that they knew him as “Main.” They denied knowing any reason why “Main” would want to shoot them.

12Corporal Wilson of the Shreveport Police Department (“SPD”) responded to a call about shots fired and found nothing amiss when he arrived at the location of the Take-a-Bag grocery store. He then received a dispatch about a gunshot victim at Willis-Knighton North, where he made contact with Traavis. According to Wilson, Traavis reported that he had been walking on Milam Street in the area of the grocery store when “Main” got out of a black SUV and shot him. Traavis also reported that “Main’s” little brother had recently been involved in another shooting. Wilson then returned to the crime scene with two other officers and located a number of shell casings.

Officer Leroy Bates testified that there were “several shell casings from a large caliber rifle on the ground” in the area of the shooting incident. Photographs were taken of the casings on the ground before they were collected for evidence. State’s Exhibit 1 containing 7, 6-2 rounds that were found in the street directly in front of the store where the shooting occurred was introduced into evidence. Officer Bates testified that the witnesses he spoke to from the store and surrounding area heard the gunshots. Apparently, none of these witnesses identified any participants in the shooting.

Detective Lowell Bowen, then in SPD’s Violent Crimes Homicide Unit, conducted the investigation. He contacted Traavis at LSUMC where he was awaiting surgery. Even though Traavis appeared to be in severe pain, medicated, and distraught, he told Detective Bowen that “Main” exited a black SUV, opened fire on them with a “chopper,” and then fled in the SUV. Traavis also stated that “Main’s” brother, Decoreyon Reed, had been |3involved in a shooting at Pinky’s Grocery. Detective Bowen had worked that case, so he returned to his office to get information on “Main’s” identity. His efforts led him to the defendant, and he put together a photographic lineup. Upon returning to LSUMC, Detective Bowen interviewed Stephan, who reported the same basic facts regarding the shooting. When presented with the photographic lineup, Stephan immediately pointed to the defendant’s photo. The next day, Detective Bowen presented the lineup to Traavis, who also immediately identified the defendant as the shooter.

Detective Bowen proceeded to the home of the defendant’s mother where a large black SUV was parked in the driveway. The mother, who owned the vehicle, told Detective Bowen that the defendant had been in the SUV the night of the shooting and that he had dropped it off that same night. She allowed a search of the vehicle, but no evidence was found. Detective Bowen obtained a warrant for the defendant’s arrest. On January 25, 2011, the defendant was arrested in Vernon Parish.

Testifying on the defendant’s behalf were Rhonda Taylor (“Rhonda”), Rhonisha Taylor (“Rhonisha”), and Alvin Anderson (“Anderson”). The defendant and Rhoni-sha had two children together, but their baby daughter had died some days before the shooting at issue. Rhonda, who is Rhonisha’s mother, Rhonisha, and the defendant were together to make funeral arrangements for the baby, and they stopped at the Take-a-Bag store. Rhonda testified that when they stopped at the store, the defendant exited the vehicle, and she got into the backseat to talk with Rhonisha. Rhonda testified that the defendant ran back to the SUV as shots were being fired |4and told them to duck. When asked by defense counsel whether she saw who was shooting at whom, she replied that she did not. She testified that she did not see anyone she recognized as the shooter, and she could not say how many people were shooting. Though she said there was a lot of shooting, no shots were fired at the defendant’s vehicle. When she found out that the defendant was a suspect in the shooting, Rhonda did not contact the police on his behalf.

Rhonisha testified as to the same basic facts as her mother. She denied that the defendant was the shooter. She testified that he had been standing in front of the store talking to a guy and that she had not seen him with a weapon. Rhonisha testified that she did not see the actual shooter or shooters. After they left the scene of the shooting, the defendant brought them home and then left.. Like Rhonda, Rhoni-sha did not call the police to report that the defendant was not the shooter. She explained that she “didn’t want to ruin [her] day at the time.”

Anderson testified that he stopped the defendant to chat in front of the store. He saw the Harris brothers park toward the New Nat Café next to the store and then heard shots ring out. Anderson testified that he ran and ducked behind a blue dumpster behind the store until the shooting stopped. He then left. Anderson did not contact the police about what occurred. He also testified that he knows both the Harris family and the defendant’s family. He denied seeing the defendant with a weapon before the shooting.

The defendant testified on his own behalf at trial. His testimony mirrored the Taylors’ and Anderson’s. He testified that there were a lot of people at the store that night. While he was talking with Anderson, shots Rrang out. The defendant could not say who was doing the shooting. As for the Harris brothers, the defendant claimed that they had pulled in the New Nat Café lot by a tall white fence that separates the two businesses. He testified that he could not really see them because of the fence, so he did not understand how they claim to have seen him. The defendant denied having a weapon. He testified that after the shooting he took Rhonda and Rhonisha home, dropped off the SUV at his mother’s house, left with a friend to go out, and later went to another girl’s house. The defendant did admit to having some ongoing issue with the Harris brothers about a car, but he denied ever having had a fight with them. He asserted that they accused him of the shooting because they recognized his mother’s vehicle and assumed he shot at them.

After hearing the conflicting testimony, the jury by a vote of 11-1 returned a verdict of guilty as charged of one count of attempted first degree murder. The defendant was sentenced on September 30, 2011, to 48 years’ imprisonment at hard labor, without benefits. The state then charged him as a second-felony habitual offender. By plea agreement on December 21, 2011, the defendant plead guilty to the multi-bill in exchange for a sentence of 55 years’ imprisonment at hard labor, without benefits.

In the meantime, on November 9, 2011, with new counsel, the defendant filed a motion for a new trial on the grounds of newly discovered evidence that would establish his innocence and would have resulted in a | ^different verdict if it had been presented to the jury. Attached to the motion was an affidavit purportedly signed by Cordarly Chappie (“Chappie”) on October 28, 2011. The affidavit states:

1. My name is Cordarly Chappie.
2. I am aware that Darrell Thomas had been convicted of a crime which he did not commit.
3. Travis (sic) Harris and Stephen (sic) Harris and at least one other person had threatened and had shot at me and for my own protection I borrowed an AKA semi-automatic rifle from a friend.
4. At the incident for which Darrell Thomas was convicted, I was shot at and I fired the AKA back at the people who were shooting at me.
5. Darrell Thomas had no firearm and did no shooting.

Opposing the motion, the state argued that the Chappie affidavit was insufficient to qualify as new and material evidence that would justify a new trial under La. C. Cr. P. art. 851(3). The state noted that the jury had already rejected the claim that the defendant was not the shooter and that none of the defendant’s witnesses had testified that Chappie was the shooter. The state posited that even if Chappie was involved in the shooting, the defense must have known this at the time of trial; therefore, the information was not new.

The motion for a new trial was heard on June 12, 2012. Defense counsel, Ransdell Keene, asserted that Chappie appeared in his office and executed the affidavit in which he admitted to being the shooter. To support the affidavit, Keene informed the trial court that Rhonda and Rhonisha were |7available to testify that trial counsel, Danny Scarborough, never asked them who the real shooter was and that they would have identified Chappie had they had been asked at trial. Keene also noted that trial counsel had been diagnosed with a serious medical condition sometime after trial and suggested that his performance as trial counsel was lacking.

The state countered that the motion should be denied without any testimony because the information was apparently known to the witnesses at trial when they had the opportunity to testify.

After hearing arguments, the trial court denied the motion for a new trial. Noting that the evidence was sufficient for the jury to find the defendant guilty beyond a reasonable doubt, the trial court stated that it concurred entirely with what the jury did and had no qualms about its decision. Referring to the purported new evidence, the trial court observed that the likely outcome if the matter went forward would be that Chappie would recant his admission. Finally, with respect to the argument regarding trial counsel’s performance, the trial court noted that Mr. Scarborough “did a good job at trial” and that he “found no fault with his conduct at the trial.”

The defendant’s appeal followed.

DISCUSSION

The defendant raises two assignments of error. First, he asserts that the trial court erred in denying the motion for a new trial without conducting an evidentia-ry hearing where the motion included an affidavit by Chappie ^admitting to the crime and raised the issue of the defendant’s actual innocence. The defendant asserts that the denial was not in the interest of justice. Second, the defendant asserts that trial counsel was ineffective in failing to investigate the case properly so as to discover the evidence that was available to show the real perpetrator of the shooting.

Denial of Motion for a New Trial

In pertinent part, La. C. Cr. P. art. 851 provides:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever:
(8) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right.

The defendant based his motion for a new trial on the grounds of newly discovered evidence. To obtain a new trial on the basis of newly discovered evidence, the defendant has the burden of showing: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of the trial was not caused by a lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have produced a different verdict. State v. Hammons, 597 So.2d 990, 994 (La.1992); State v.Watts, 2000-0602, p. 6 (La.1/14/03), 835 So.2d 441, 447.

In ruling on a motion for a new trial based on newly discovered evidence, the trial judge’s “duty is not to weigh the new evidence as though he were a jury determining guilt or innocence, rather his duty is the narrow one of ascertaining whether there is new material fit for a new jury’s judgment.” State v. Prudholm, 446 So.2d 729, 736 (La.1984). The decision of whether to grant or deny a motion for new trial is within the trial judge’s sound discretion. State v. Brisban, 2000-3437 (La.2/26/02), 809 So.2d 923; State v. Quimby, 419 So.2d 951, 960 (La.1982).

Though the defendant based his motion on newly discovered evidence, it is clear that he cannot show that the evidence was discovered after trial or that the failure to discover the evidence was not due to a lack of diligence on the part of the defense. Mr. Keene asserts that upon becoming new counsel for the defendant after the trial, he interviewed the Taylors (Rhonda and Rhonisha) and learned that they knew who the shooter was. The defendant’s memorandum in support of his motion for a new trial states that “no one asked at the trial who the other male adult was in the Thomas vehicle at the time of the shooting.” According to Mr. Keene, the Tay-lors indicated that trial counsel, Mr. Scarborough, never asked them about the real shooter and that they were prepared to testify that the shooter was Chappie. Presumably, Chappie was the “other male adult in the Thomas vehicle at the time of the shooting.” Mr. Keene claims that he located Chappie and obtained his affidavit admitting to the shooting. Notably, Mr. 1 ipKeene did not have Chappie available at court to testify as to his alleged guilt under oath on the day the motion for a new trial was heard.

The claim that Rhonda and Rhonisha knew who the shooter was and would have testified that it was Chappie if only defense counsel had asked them shows that the evidence upon which the motion for a new trial is based is not newly discovered evidence. If Chappie was in the vehicle with the defendant and the Taylors, then they all would have known that he was the shooter. However, no one mentioned Chappie at trial or even that someone else was with them in the SUV. Moreover, a review of the trial transcript shows, contrary to what has been asserted by Mr. Keene in support of the motion for a new trial, that the Taylors had the opportunity when questioned by trial counsel for the defense to identify the shooter as Chappie. When questioning Rhonda, Mr. Scarborough asked the following questions and received the following answers:

Q. Did you see who was shooting at whom?
A. No, we didn’t because we was ducked down, me and my daughter.
Q. Did you happen to see anybody that you recognized as the shooter?
A. No.

Mr. Scarborough also asked Rhonisha the following question and received the following answer:

Q. Did you actually see who were the shooters?
A. No.

|nThe above testimony from trial shows that trial counsel, Mr. Scarborough, directly questioned the Taylors about whether they could identify the shooter. Both women testified under oath that they could not. The Taylors had the opportunity to identify Chappie as the shooter and did not do so. The purported new evidence could have easily been discovered prior to or during trial if the Taylors had gone to the police with the information they apparently now claim to have had about the shooter or if they had testified differently at trial.

On this record, the defendant has not shown that a new trial is warranted due to newly discovered evidence or to serve the ends of justice. Accordingly, we find no abuse of discretion by the trial court in denying the motion for a new trial.

Nor do we find that the trial court erred in failing to conduct an evidentiary hearing on the motion for a new trial. La. C. Cr. P. art. 852 provides that a motion for a new trial shall be tried contradictorily with the district attorney. This provision does not require an eviden-tiary hearing. Rather, the method of hearing motions for a new trial is within the trial judge’s discretion and may be tried solely on affidavits. State v. Varnado, 154 La. 575, 97 So. 865 (La.1923). “If the reading of the motion imparts to him sufficient knowledge to enable him to intelligently dispose of the matter, he cannot be arbitrarily required to delay his ruling for the purpose of further hearing or argument.” Id., at 868. More recently, in Brisban, supra, the supreme court found no error by the trial court in denying a motion for a new trial without an evidentiary hearing. The court found that reading the defendant’s motion, along with the affidavit by a codefendant which was the basis for the motion, “gave the trial court sufficient knowledge to enable him to intelligently dispose of the matter.” Id., at 2000-8437, p. 11, 809 So.2d at 931. The court noted that an evidentiary hearing would have been repetitious of the information in the affidavit. Id. See also State v. Barfield, 292 So.2d 580 (La.1974), and State v. Jackson, 570 So.2d 227 (La.App. 5th Cir.1990).

Here, the trial court had before it the motion for a new trial, the memorandum in support of the motion, and the Chappie affidavit. The trial court had the benefit of having heard and observed Rhonda and Rhonisha testify at trial. Additionally, the trial court heard arguments from both sides. We find on this record that the trial court had all it needed to be able to intelligently dispose of the matter.

Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel must both identify specific acts or omissions by counsel and state how these actions resulted in actual prejudice so severe that the defendant was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Jordan, 35,643 (La.App.2d Cir.4/3/02), 813 So.2d 1123, writ denied, 2002-1570 (La.5/30/03), 845 So.2d 1067. Generally, claims of ineffective assistance of counsel are more properly addressed by an application for post-conviction relief filed in the trial court where a full eviden-tiary hearing may be conducted. Prudholm, supra; State v. Gay, 616 So.2d 1290 (La.App. 2d Cir.1993), writ denied, 624 So.2d 1223 (La.1993). Ineffective assistance of counsel issues may be considered on appeal where the defendant had the opportunity to and did produce evidence on the issue in the trial court and where the record contains sufficient evidence to rule on the merits of the claim. Gay, supra.

Here, defendant claims that trial counsel did not properly investigate the case to discover the real perpetrator of the crime, allegedly Chappie. As previously addressed, trial counsel directly questioned the Taylors at trial about whether they could identify the shooter, and both testified that they could not. None of the defendant’s witnesses, including the defendant himself, identified any other person as the shooter when questioned by trial counsel. The jury heard and rejected the testimony that the defendant was not the shooter. This case turned on the credibility of the -witnesses, and the jury chose to accept the testimony of the Harris brothers, who identified the defendant as the shooter within hours of the incident, over the testimony of the defendant and his witnesses, who simply claimed that the defendant did not do it. The jury as the trier of fact may accept or reject the testimony of any witness in whole or in part, and a reviewing court accords great deference to a jury’s decision. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, cert. denied, _ U.S. _, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010); State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

Nevertheless, the defendant did not have the opportunity in the trial court to produce evidence to show that trial counsel was ineffective in | ^investigating the matter and failing to discover that Chappie was, allegedly, the actual perpetrator. Though we note from the record that trial counsel did question the defense witnesses about the actual shooter during their testimony, the record does not contain sufficient evidence to allow this court to otherwise evaluate an ineffective assistance of counsel claim as it otherwise relates to the Chappie affidavit. Therefore, we preter-mit any ruling on the ineffective assistance of counsel claim, which is preserved for the defendant to raise, if he so chooses, by application for post-conviction relief.

CONCLUSION

For the reasons stated, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Of course, the defendant's comment raises the question of how he saw the Harris brothers if they were separated by a tall fence.

      . La. C. Cr. P. art. 853 provides that a motion for a new trial must be filed and disposed of before sentencing; however, a motion based on new evidence under La. C. Cr. P. art. 851(3) may be filed within one year after the verdict or trial court’s judgment. Thus, the motion for a new trial in this matter was timely.

      . The supreme court in Brisban, supra, noted that though there was no statutory authorization or procedural rules for a motion for a new trial by a defendant at the time of the Vamado decision, its pronouncements regarding the hearing of such motions remain "soundly reasoned.” See Brisban, supra, FN 2.


author: PAUL A. BONIN, Judge.

text:
    6126, L.L.C., James P. Farwell, and G.F. Gay LeBreton v. Jon Besthoff STRAUSS, Jeffry B. Strauss, and Susan Marie Carman Strauss.
    No. 2013-CA-0853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.

      Lisa Brener, Brener Law Firm, L.L.C., Gary J. Elkins, Elkins, P.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Stephen P. Schott, Brodie G. Glenn, Baldwin Haspel Burke & Mayer, L.L.C., Robert B. McNeal, Laura E. Springer, Liskow & Lewis, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   PAUL A. BONIN, Judge.

|TThe St. Henry Condominium is a three-unit condominium project on St. Charles Avenue near Audubon Park in Uptown New Orleans. Its governing declaration confers a so-called right of redemption to the condo unit owners whenever one condo unit owner sells his unit without first offering the remaining condo unit owners the right of first refusal on the purchase. Learning that the record owner of Unit B had executed a counter letter in favor of her son with respect to a 48.2% interest in her unit as well as an act of donation of the unit to her daughter-in-law, the record owners of Units A and C instituted these proceedings.

Ruling on competing motions for summary judgment, the District Court determined that the record owners of Units A and C were entitled to exercise the right of redemption by paying $500,000 for the 48.2% interest on account of the counter letter, and that the donation was valid and effectively transferred the remaining 51.8% ownership interest in Unit B to the daughter-in-law. The District 12Court further reserved unto the parties the right to partition Unit B at a later time, and deferred ruling on the claims set out in the defendants’ reconventional demand.

Upon our de novo review of the rulings on the motions for summary judgment, each of which was granted in part and denied in part, and upon our de novo examination of the Condominium Declaration and the Counter Letter, we find as a matter of law that the Counter Letter between the record owner of Unit B and her son is not a sale, and that the record owners of Units A and C are not entitled to exercise the so-called right of redemption provided for in the Condominium Declaration. Accordingly, we reverse the partial summary judgment which determined otherwise.

We note at this point that the owners of Units A and B did not appeal the District Court’s factual finding that the donation to the daughter-in-law was valid, or its consequent legal conclusion that the Act of Donation did not entitle the other condo unit owners to exercise the declaration’s right of redemption. We, accordingly, decline to review these portions of the District Court’s judgment.

Consequently, as a result of our reversal of that portion of the judgment which was favorable to the owners of Units A and C and of the finality of that portion of the judgment which was not appealed by them, we dismiss with prejudice their principal demand. Also, we need not remand for further proceedings on the reconventional demand because the parties at oral argument agreed that a dismissal with prejudice of the principal demand would moot the reconventional demand.

|3We explain our decision in greater detail in the following parts.

I

Here we set forth the identities of the parties, the underlying facts, and this case’s procedural history.

A

The plaintiffs in the principal demand are 6126, L.L.C., and James Farwell and G.F. LeBreton, who were respectively the record-owners of Unit A and Unit C at the time the lawsuit was filed. None of them, however, were record-owners of either unit at the time Unit B was acquired from Thomas Black by Jon Besthoff Strauss, one of the defendants. Jon is the mother of Jeffry Strauss, who is married to Susan Carman Strauss; Jeffry and Susan are the remaining defendants in the principal demand.

B

The St. Henry Condominium was established on May 16, 1978, by a document entitled Condominium Declaration Creating and Establishing Condominium Property Regime. The Condominium Declaration creates a condominium association, describes the three individual units, the common areas, and the land on which the condominium sits. The Condominium Declaration also sets out the method of the condominium association’s governance, and provides the rules regulating the condominium’s maintenance and administration.

|4The Condominium Declaration also particularly provides that with “the exception of transfers of ownership of any Unit by one spouse to another, should the owner of any Unit be desirous of leasing or selling such Unit, each other Unit Owner is hereby given and granted the right of first refusal to lease or purchase such Unit, as the case may be, on the terms and conditions herein stated, and no owner of a Unit shall lease or sell the same to any party without first giving the [Condominium] Association notice in writing of such lease or sale as herein provided, thereby giving each of the individual Unit Owner[s] the opportunity to determine whether any of them will exercise their right of first refusal.”

The notice required by the Condominium Declaration’s right of first refusal obligates a Unit Owner seeking to sell or lease his unit to provide to the Association not only “an executed copy of the bona fide offer” to lease or purchase, but also “the name, address, business, occupation or employment, if any, of the offeror.” The bona fide offer to purchase given by Jon to Mr. Black is not contained in the record, but the parties agree that only Jon’s name, and not Jeffry’s, appears.

The Condominium Declaration further provides that in the event that a Unit Owner sells or leases their unit without first giving notice to the Association, and thus negating the other owners’ right of first refusal, then any of the other Unit Owners “shall have the right to redeem said Unit from such lease or sale transaction by reimbursing the lessee for the amount of any rent paid in advance ... or by refunding unto the purchaser of such Unit the purchase price paid therefore, | sin which latter event, the purchaser of such Unit shall convey the title to such unit to the electing Unit Owner.” In other words, the Condominium Declaration provides that the right of redemption cannot be exercised absent a breach of the right of first refusal.

On October 31, 2002, Jon signed the Act of Cash Sale whereby she purported to purchase an undivided one-hundred percent interest in Unit B from Mr. Black, the unit’s prior owner. The Act of Cash Sale declares and acknowledges that it is made subject to the Condominium Declaration. Attached to the Act of Cash Sale from Mr. Black to Jon are the written waivers of the right of first refusal and option to purchase Unit B signed by the then-owners of Units A and C, which written waivers noted that the purchase price to be paid was $1,087,500. That Jon paid Mr. Black that amount is undisputed.

Prior to executing the Act of Cash Sale, however, Jon borrowed from Jeffry $1,000,000, one half of which was repaid in December of 2002. On the same day as the Act of Cash Sale, Jon executed the Counter Letter in favor of Jeffry before a notary and two witnesses. Jeffry, a Colorado resident, signed the Counter Letter before a Colorado notary on November 20, 2002. The Counter Letter describes the parties to the document, provides a legal description of Unit B and the land on which the St. Henry Condominium sits, notes that Jon acquired an undivided one-lhundredfi percent interest to Unit B by Act of Cash Sale on October 31, 2002, and states:

That although said Act recites JON BESTHOFF STRAUSS paid a cash consideration of ONE MILLION THIRTY-SEVEN THOUSAND FIVE HUNDRED AND NO/100 ($1,037,500.00) DOLLARS, in truth and in fact, her son, JEFFRY B. STRAUSS paid part of that consideration with his separate funds, under his separate administration and control.
Appearer, JON BESTHOFF STRAUSS declares that the separate estate of JEFFRY B. STRAUSS has an undivided 48.2 percent ownership in said property and the recordation by any party of this Counter Letter shall act as a transfer and conveyance of that 48.2 percent interest to the separate estate of JEFFRY B. STRAUSS without the need to execute any further documents. Appearer, JON BESTHOFF STRAUSS, further declares that the separate estate [of] JEFFRY B. STRAUSS is granted an option to buy her 51.8 percent interest in said property at her death, for its fair market value. The rights granted in this Counter Letter are subject to approval of the owners of the other two units in St. Henry Condominium, and their waiver of their rights of first refusal after a determination of fair market value is made.
Both appearers declared that the above and foregoing is true and correct and that they have executed this Counter Letter as their free act and deed.
Appearer, JEFFRY B. STRAUSS, further acknowledged the transaction recited hereinabove and declared that he accepts the option to buy for his separate estate, his heirs, successors and assigns.

Additionally, Susan signed the Counter Letter before the Colorado notary on the same day as her husband and acknowledged the paraphernality of the funds used by Jeffry to purchase his interest in Unit B, and recognized that Jeffry’s interest in Unit B is his separate property under his own administration. The Counter Letter, we note, has yet to be recorded in the Conveyance Records for Orleans Parish.

|7Jon then took up residence in Unit B. That she was the sole, full-time occupant of the Unit, or that she paid all condominium dues, fees, regular assessments, and special assessments is undisputed. That Jon paid all taxes, insurance fees, maintenance and repair costs associated with Unit B is, also, not disputed.

In October of 2011 Jon suffered an illness that left her partially incapacitated. Later, in January of 2012, she decided to move to Lambeth House, a retirement community in Uptown New Orleans. On April 11, 2012, Jon wrote letters to the owners of Units A and C which stated: “I hope you are well. As you know, I have moved to Lambeth House. I would like to dispose of my interest in 6126 St. Charles Avenue, Unit B. This interest will be transferred to my children. If you do not object, please sign the enclosed Waiver so that I may transfer my interest to them. Please leave the signed Waiver on the table by the mail boxes.” The proposed waiver provided accordingly: “I have been informed of your proposed sale of Unit B of the St. Henry Condominium Association, Inc. to your son Jeffry B. Strauss, and I hereby waive my right of first refusal and option to purchase Unit B.” Instead of signing the waivers, the owners of Units A and C sought more details about the specifics of Jon’s proposed sale.

At first the plaintiffs attempted to secure this information informally, through conversations with, and letters addressed to Jon. Through conversations with Jon and Jeffry, the plaintiffs discovered that Jeffry might already have an ownership interest in Unit B. The plaintiffs, nevertheless, were unsuccessful in ^discovering the nature or terms of Jon’s proposed sale to Jeffry. Accordingly, the plaintiffs’ retained an attorney who wrote to Jon on April 30, 2012, demanding that she provide all documents reflecting Jeffry’s current ownership interest in Unit B, and any offer or purchase agreements for the sale of her current interest in Unit B.

Before her attorney responded to the April 30, 2012 letter, Jon executed an Act of Donation in authentic form on May 7, 2012, wherein she donated to Susan all of her “right, title and interest in and to” Unit B. Susan also appeared in the Act and accepted the donation as her separate and paraphernal property. The Act of Donation was recorded in Orleans Parish on May 7, 2012. On the same day as the Act of Donation, Jeffry, via letter addressed to Jon, wrote: “In view of your generous gift to Susan of your interest in the condo, my option to buy your interest at your death for fair market value as contained in our Counter Letter dated October 31, 2002 and November 20, 2002, is no longer in effect.” On May 9, 2012, the Strausses’ attorney replied to the plaintiffs’ April 30, 2012, request via letter and provided plaintiffs with a copy of the Counter Letter, but not the Act of Donation.

C

The plaintiffs filed suit for declaratory judgment, specific performance, breach of contract, and/or partition against the Strausses on May 14, 2012. Specifically, the plaintiffs asked the District Court to: 1) declare that they are entitled to redeem from Jeffry his 48.2% interest in Unit B; 2) declare that plaintiffs are entitled to redeem from Jeffry “full ownership of the Option granted | flto him by Jon to purchase her 51.8% interest in Unit B”; 3) declare that the May 7, 2012, Act of Donation is null and void because Jon had no legal right under the Condominium Declaration to transfer her interest in Unit B; 4) declare that the May 7, 2012, Act of Donation is a disguised sale, thus entitling plaintiffs to redeem Susan’s interest in Unit B; 5) rule that defendants be held liable for conspiring to conceal the transfers of interest in Unit B; and 6) grant a partition of Unit B by licitation in the event it concludes that plaintiffs are entitled to redeem less than one hundred percent of Unit B from the defendants.

The Strausses filed an answer and re-conventional demand on June 29, 2012, wherein they asserted as affirmative defenses, among other things, that the Counter Letter and donations do not constitute sales or leases of Unit B, and they, therefore, do not trigger the Condominium Declaration’s rights of first refusal and redemption. The Strausses’ reconventional demand asks the District Court for a judgment declaring that: 1) at the time Jon acquired Unit B the rights of first refusal in favor of the owners of Units A and C had been waived; 2) the Condominium Declaration’s right of first refusal applies only to sales and leases; 3) the Counter Letter and Act of Donation were neither sales nor leases; 4) the rights of first refusal in favor of the owners of Units A and C were not triggered by the Counter Letter and the Act of Donation; 5) no transfer of interest between Jon to Jeffry occurred because the Counter Letter was never recorded in the Orleans Parish conveyance records; 6) the Act of Donation is valid and binding; 7) Jeffry | inrevoked the option to purchase contained in the Counter Letter; and 8) Susan is currently sole owner of Unit B.

The Strausses filed a motion for summary judgment on October 15, 2012, wherein they argued that the District Court should dismiss the plaintiffs’ claims for redemption because neither the Counter Letter nor the Act of Donation were sales or leases that would trigger the Condominium Declaration’s rights of first refusal and redemption. The plaintiffs filed a cross-motion for summary judgment on December 20, 2012, wherein they argued that the Counter Letter and the Act of Donation violated the Condominium Declaration’s right of first refusal provision, thus entitling them to a judgment which provides for the transfer of full ownership of Unit B to them upon the payment of the redemption price in accordance with the terms of the Condominium Declaration.

The parties argued the merits of their respective motions before the District Court on January 18, 2018. The District Court granted in part and denied in part both motions and signed a written judgment on April 4, 2013. The transcript of the oral argument reveals that the District Court concluded that Jeffry is the owner of an undivided 48.2% interest in Unit B. It further held that Jon’s grant to Jeffry of an option to purchase her 51.8% interest in Unit B after her death transformed the InCounter Letter into an act of sale, thus implicating the Condominium Declaration’s right of first refusal. Accordingly, the District Court’s written judgment held that the owners of Units A and C are entitled to exercise their rights of redemption with respect to Jeffry’s 48.2% undivided interest in Unit B. The District Court also concluded that the May 7, 2012, Act of Donation from Jon to Susan is valid, effective, and not violative of the Condominium Declaration’s right of first refusal. The District Court, therefore, concluded that the plaintiffs have no right to purchase Susan’s 51.8% undivided interest in Unit B. The District Court, additionally, certified its judgment as final and appealable, but reserved to the parties the right to seek a partition of the property should the plaintiffs exercise their rights of redemption with respect to Jeffry’s 48.2% interest in the property. Lastly, the District Court ruled that the April 4, 2018 judgment was neither a final judgment, nor an interlocutory ruling, with respect to those claims brought by the Strausses in their recon-ventional demand. The Strausses timely filed a petition for suspensive appeal from the April 4, 2013 judgment. The plaintiffs, on the other hand, failed to file a petition for appeal or answer the Strausses’ petition for appeal pursuant to La. C.C.P. art. 2133.

II

A

Before turning to the Condominium Declaration and the Counter Letter, we set forth the standard by which we review any summary judgment. We review the granting of a summary judgment under the de novo standard, which means that 113“we look at the facts and evidence in the record before us, inspecting it without regard or deference to the judgment of the trial court or its reasons for judgment.” Cusimano v. Port Esplanade Condominium Assn., Inc., 10-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934. The trial judge’s reasoning may well be informative, but it is not determinative of the legal issues to be resolved by us. Cusimano, 10-0477, pp. 4-5, 55 So.3d at 934.

B

With respect to the Condominium Declaration and the Counter Letter at issue here, they are contracts and the rules of contract interpretation apply to them. See Cusimano, p. 8, 55 So.3d at 936 (“rules of contract interpretation apply to interpretation of a condominium declaration”); Dawsey v. Gruber, 94-1466, p. 3 (La.App. 4 Cir. 7/1/94), 647 So.2d 1084, 1086 (La.1994) (a counter letter is an agreement, a contract, between a record owner and non-record owner whereby the record owner recognizes the true ownership interest of the non-record owner).

Contracts have the effect of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. See La. Civil Code Arts.1983 and 2045; see also La. R.S. 9:1124.115 A (“The condominium declaration and bylaws shall have the force of law between the individual unit owners.”) If the words of a contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. See La. Civil Code Art. 2046. Each provision in a contract must be interpreted in light of the other provisions so 113that each is given the meaning suggested by the contract as a whole. See La. Civil Code Art. 2050. “When a contract is not ambiguous or does not lead to absurd consequences, it will be enforced as written and its interpretation is a question of law for a court to decide.” Lalla v. Calamar, N.V., 08-0952, p. 8 (La.App. 4 Cir. 2/11/09), 5 So.3d 927, 932, quoting American Deposit Ins. Co. v. Myles, 00-2457, p. 5 (La.4/25/01), 783 So.2d 1282, 1286. Meaning and intent of parties to a written instrument is ordinarily determined from the instrument’s four corners and extrinsic evidence is inadmissible either to explain or to contradict the instrument’s terms. Lalla, 08-0952, p. 8, 5 So.3d at 932. Notably, the interpretation of a contract’s provisions is typically a matter of law that is especially and properly decided by summary judgment. See Hall v. Malone, 12-0264, pp. 4-5 (La.App. 4 Cir. 11/7/12), 104 So.3d 593, 596. And so the interpretation of unambiguous provisions in contracts (such as condo declarations or counter letters) is a matter of law, which we review under the de novo standard.

C

With particular attention to counter letters, recent jurisprudence indicates that they are acknowledgments of true ownership and indicate that one or more of the record owners hold title to the property as agent for the person, or persons, named in the counter letter. See Roy v. Robco, Inc., 98-214, p. 4 (La.App. 5 Cir. 10/14/98), 721 So.2d 45, 46 (“A counter-letter is a binding agreement between record owners and non record owners whereby the record owner recognizes the true ownership interests of the non record owner.”) More precisely, a “counter 114letter does not secretly convey property from the record owner to the non-record owner; rather, it is an expression of the true intent of the parties at the time the act of public record was executed.” Whittington v. Bienvenu, 539 So.2d 832, 836 (La.App. 3 Cir.1989). Counter letters, therefore, reflect an ownership interest in the underlying property and indicate that the record owner holds title to the property as agent for the person named in the counter letter. See Peterson v. Moresi, 191 La. 932, 940, 186 So. 737, 739 (La.1939); and Roy, 98-214, p. 6, 721 So.2d at 47.

Ill

We now look to the plain language of the Condominium Declaration’s provisions at issue and then look to the Counter Letter at issue in order to determine whether the existence of the Counter Letter allows the now-owners of Units A and C to demand a right of redemption of Unit B from the defendants.

A

A right of first refusal is an agreement by one party that he will not sell a certain thing without first offering it to a certain person. See La. Civil Code Art. 2625. Under the legal regime, the right may be enforced by specific performance. Id. The right of first refusal is a unilateral obligation; the grantor alone is obligated to act and the person holding the right of first refusal is not required to accept the offer, though failure to accept the offer permits the grantor to then sell the thing to a third party. See Alain Levasseur & David Gruning, Louisiana Law of Sale and Lease: A Précis § 1.1.4 (Alain Levasseur, John Trahan, Andrea Carroll & Ronald 11sScaIise, eds., Matthew Bender & Company,' Inc., a member of the LexisNexis Group 2007).

“[T]he right of first refusal [imposes] on the grantor an obligation not to do ie. not to sell to another before offering to sell to the grantee, rather than an obligation to do ie. sell to the grantee first” and “is subject to two suspensive conditions”: a) the grantor’s intent to sell and b) the grantee’s agreement to purchase “on the same terms, or on those specified when the right was granted if the parties have so agreed.” La. Law of Sale & Lease, supra, at 15; see also La. Civil Code Art. 2625. The same terms of the offer made to another person (price, modalities of payment, etc.) must be made to the holder of the right of first refusal. See La. Law of Sale and Lease, supra.

Similarly, the plain language of the conventional Condominium Declaration indicates that right of first refusal is triggered by an offer to purchase or sell a condo unit. As we observed in Part I-B, ante, Mr. Black undoubtedly presented Jon’s bona fide offer to purchase to the other condo Unit Owners and they executed written waivers by which they declined to exercise their right of first refusal and thereby acquire Unit B for $1,037,500.00.

The plaintiffs, however, stake their claim to Unit B on Jon’s supposed violation of the right of first refusal’s notice provision, which obligates a Unit Owner to provide to the Association not only “an executed copy of the bona fide offer” to purchase, but also “the name, address, business, occupation or employment, if any, of the offeror.” The Counter Letter is, the plaintiffs contend,_J_^the proof that the Declaration’s provision was breached because Jeffry’s identity as an “offeror” was not disclosed by Jon to their predecessors-in-title. The plaintiffs conclude that they are thus entitled to redeem Unit B, or a portion of it, by paying to Jon (or Jeffry or Susan) the amount paid for the unit by Jon in 2002.

The plain language of the Condominium Declaration, however, does not support this assertion. Simply stated, the Condominium Declaration’s right of first refusal obligates only a Unit Owner — in this case Mr. Black, Jon’s predecessor in title — to disclose the terms of the offer to purchase, as well as the name, occupation, etc., of the proposed purchaser to the Condominium Association as a condition precedent to a sale or purchase. The Condominium Declaration’s clear dictates did not obligate Jon, who was at that time no more than a proposed purchaser, to disclose anything in 2002 to the then record owners of Units A and C. Because, moreover, the Counter Letter, as we discuss in Part III— C post, was neither a sale nor a lease of Unit B, its execution did not obligate Jon to disclose its provisions to the owners of Units A & C.

Our review of the Condominium Declaration indicates that the right of redemption is only activated by the discovery that a Unit Owner sold his unit without first properly notifying the other Unit Owners of the opportunity to exercise their rights of first refusal. In other words, a Unit Owner cannot exercise his right of redemption absent a preceding breach of the right of first refusal. The exercise, moreover, of both rights is contingent upon either the proposed or actual |17sale of a unit, as opposed to all manner of otherwise legal attempts to transfer an interest in the unit.

B

A sale is “a contract whereby a person transfers ownership of a thing to another for a price in money.” La. Civil Code Art. 2439. Accordingly, “[t]he thing, the price, and the consent of the parties are requirements for the perfection of a sale.” Id. By its very terms the Counter Letter is not a sale.

A plain reading of the Counter Letter (see Part I-B, ante) reveals that Jon is not transferring any ownership interest in Unit B to Jeffry in exchange for a price. Likewise, the Counter Letter betrays no intent by Jeffry to pay a sum of money to his mother as consideration for a transfer of an interest in Unit B. The option to purchase contained in the Counter Letter, likewise, does not reflect a sale. The clear language of the Counter Letter indicates that Jon’s granting of the option was not contingent upon Jeffry’s payment of any price.

Instead, the Counter Letter at issue is remarkably similar to the Counter Letter analyzed by the Supreme Court in Peterson v. Moresi, supra. The language is so similar that we are of the opinion that Peterson fully resolves the outcome of this controversy.

In Peterson, the plaintiffs sued the wife and daughter of a deceased property owner to be declared owners of various undivided interests in the immovable |! «property at suit and for an accounting. The effect of a counter letter was at issue. The counter letter was signed by the deceased record owner of the immovable property and stated that the plaintiffs and their heirs owned certain undivided interest in immovable property. The Peterson counter letter provided in pertinent part:

I, A.P. Moresi, a resident of the Parish of Iberia, State of Louisiana, do hereby state that I have this day purchased from William Lee McFarlain, of the Parish of Acadia, State of Louisiana, Seven (7) acres of land, being a part of Lot numbered Three (3) in Section Forty-one (41) in Township Nine (9) South, Range Two (2) West, of the Louisiana Meridian, situated in the Parish of Acadia, in said State, and fully described in the warranty deed filed for record on this day, and that I have leased this day from the said William L. McFarlain Lots numbered Four (4) and Five (5), except the earthen tanks and buildings thereon, and being a part of said Section Forty-one (41), and also Twenty (20) acres in the Northeast corner of Lot Four (4) of Section Thirty-eight (38) in said township and range, and that the following named persons have the following interest in said property:
A.P. Moresi an undivided 4/21 interest therein;
S.A. Moresi an undivided 4/21 interest therein;
A.D. Moresi an undivided 4/21 interest therein;
Arthur Schexnayder an undivided 1/21 interest therein;
Jules Maritzky an undivided 5/21 interest therein;
Ike Maritzky an undivided 3/21 interest therein; and that said named persons have paid their pro rata share and portion of said purchase price, and when so requested I will execute an act of transfer conveying to them or their assigns their respective interest in said premises.
Peterson, 191 La. at 935-936, 186 So. at 737-738.

In language no less applicable to the dispute before us today, the Supreme Court observed with respect to the Peterson counter letter:

119The instrument on which this suit is founded is neither a sale nor an offer to sell; it does not purport to be a transfer of title, or a promise on the part of A.P. Moresi to transfer title from him to the other persons named in the instrument. The instrument is merely an acknowledgment by A.P. Moresi that he bought the land for himself and as the agent for the other persons named in the instrument, and that they paid the price in proportion to the interests which they acquired, and hence that they all owned the property jointly and in the proportions stated in the instrument. A.P. Moresi’s expression of willingness to execute an act of transfer if or when requested so to do was deemed proper because the title apparently stood in his name; but this expression of willingness to execute an act of transfer was not hampered with any condition, or coupled with any obligation to be performed by any one who might request an act of transfer. The instrument is more of the character of a counter letter than of any other instrument that has been suggested. It is pointed out in the brief for the appellees that the agency of A.P. More-si, which was not disclosed in the sale made to him by McFarlain, was what the French jurists and commentators call pretenom, -meaning one who lends his name.
191 La. at 940, 186 So. at 739.

Like the Peterson counter letter, the one executed by the Strausses’ recognizes current ownership interests. The Counter Letter here does not secretly convey a property interest or evince a promise to convey, in exchange for consideration, a property interest at some future time, but instead acknowledges a state of affairs already established between the signatories. Thus, the Counter Letter here is not a sale but an expression of the true intent of the parties to the Counter Letter at the time the Act of Cash Sale was executed. See Whittington, 539 So.2d at 836.

Because the Counter Letter was not a sale, it did not constitute a breach of the Condominium Declaration’s right of first refusal. The Counter Letter did not constitute a bona fide offer to purchase Unit B, and Jon’s acknowledgment of 1 gnJeffry’s role in her purchase of Unit B did not transform Jeffry into an offeror under the terms of the Condominium Declaration. And thus Mr. Black’s failure to disclose the identity of Jeffry could not breach the Condominium Declaration’s notice provisions. Accordingly, as a matter of law, the plaintiffs cannot exercise the right of redemption because the obligation to afford the right of first refusal was not breached. See La. Civil Code art. 1767 (“If the obligation may not be enforced until the uncertain event occurs, the condition is sus-pensive.”)

IV

Before concluding our discussion, we address the consequence of the plaintiffs’ failure to appeal or answer the Strausses’ appeal. As noted, the plaintiffs ask us to overturn the District Court’s finding that the Act of Donation was valid, effective, and binding. The plaintiffs, however, failed to file a petition for appeal, or even answer the Strausses’ petition for appeal, seeking reversal of this portion of the District Court’s judgment.

An appeal is necessary in order for a party to exercise its right “to have a judgment of the trial court revised, modified, set aside, or reversed by an appellate court”. La. C.C.P. art. 2082. In order for the appellate court to modify a judgment, the party asking for the modification must file either a motion for appeal or a written answer to the appeal. See Saacks v. Mohawk Carpet Corp., 03-0386, p. 25 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 375. In order to appeal, it is necessary that an order therefore be obtained within the delay allowed. La. C.C.P. art. 2121. The plaintiffs have failed to secure such an order, and the delay for taking an | ai appeal in this case has long since expired. La. C.C.P. arts. 2087 and 2123. Alternatively, appellees, such as the plaintiffs, may answer an appeal of appellants such the Strausses:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appel-lee’s action.
B. A party who does not seek modification, revision, or reversal of a judgment in an appellate court, including the supreme court, may assert, in support of the judgment, any argument supported by the record, although he has not appealed, answered the appeal, or applied for supervisory writs.

La. C.C.P. art. 2133 (emphasis added). The plaintiffs, however, failed to file an answer to the Strausses’ appeal and the delay to do so has long since expired. The plaintiffs, nevertheless, argue that we are empowered to reverse the District Court’s rulings with respect to the Act of Donation by virtue of La. C.C.P. art. 2164, which provides in pertinent part that an “appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.” We note, however, that a party’s failure to timely seek the modification or reversal of an underlying judgment is a “jurisdictional defect, in that neither the court of appeal nor any other court has the jurisdictional power and authority to reverse, revise or | ^modify a final judgment after the time” for seeking such modification or reversal has elapsed. Baton Rouge Bank & Trust Co. v. Coleman, 582 So.2d 191, 192 (La.1991). Accordingly, when a party fails to seek timely modification or reversal of an underlying judgment, “the judgment acquires the authority of the thing adjudged, and the court of appeal has no jurisdiction to alter that judgment.” Id.

Under these circumstances, with neither an appeal nor an answer to appeal by the plaintiffs, we cannot consider their argument that the District Court erred when it concluded that the Act of Donation from Jon to Susan was valid and should be reversed. We, accordingly, cannot reverse the District Court’s April 4, 2013 judgment regarding the Act of Donation.

CONCLUSION

The District Court erred when it granted in part the plaintiffs’ motion for summary judgment which held that the Counter Letter violated the Condominium Declaration’s right of first refusal, thus allowing the plaintiffs to exercise their right of redemption with respect to any interest that Jeffry B. Strauss may have in Unit B.

We, therefore, reverse that portion of the District Court’s April 4, 2013 judgment which holds that the owners of Units A and C, plaintiffs/appellees herein, “have the right of redemption with respect to a 48.2% undivided interest, referred to in a Counter Letter, dated October 31, 2002 and November 20, 2002, between Jon Bes-thoff Strauss and Jeffry B. Strauss.” Likewise, we reverse that portion of the District Court’s April 4, 2013 judgment which provides that the | ¡¡¡¡owners of Units A and C, plaintiffs/appellees herein, are entitled to exercise the aforementioned right of redemption by payment of $500,000.00 to Jeffry B. Strauss pursuant to the Condominium Declaration.

Consequently, as a result of our reversal of that portion of the judgment which was favorable to the owners of Units A and C and of the finality of that portion of the judgment which was not appealed by them, we dismiss with prejudice their principal demand. Also, we need not remand for further proceedings on the Strausses’ re-conventional demand because the parties at oral argument agreed that a dismissal with prejudice of the principal demand would moot the reconventional demand.

DECREE

There is judgment herein reversing the lower court judgment of April 4, 2013, and decreeing judgment in favor of Jon Bes-thoff Strauss, Jeffry B. Strauss, and Susan Marie Carman Strauss, and against 6126, L.L.C., James Farwell, and G.F. LeBre-ton, dismissing with prejudice their principal demand. The reconventional demand is dismissed as moot by agreement of the parties. All costs are taxed to the appel-lees. See La. C.C.P. art. 2164.

REVERSED AND RENDERED.

      . For simplification of reference, we will often refer to these named defendants by their first names.

      . The record before us contains no loan documentation. All parties’ statements of undisputed fact, filed along with their competing motions for summary judgment, indicate, however, that Jeffry loaned Jon the funds prior to the October 31, 2002, Act of Cash Sale.

      . Jeffry did not, however, sign the Counter Letter before two witnesses. The Counter Letter, therefore, is not an authentic act. See La. Civil Code Art. 1833 B. The Counter Letter, nevertheless, is a valid act under private signature. See La. Civil Code Art. 1834. Although counter letters need not be in any specific form, they must nevertheless be in writing. Roy v. Robco, 98-214, p. 4 (La.App. 5 Cir. 10/14/98), 721 So.2d 45, 46.

      . The Strausses, additionally, requested a judgment: 1) declaring that either Susan individually, Jon individually, and/or Jon and Jeffry are entitled to redeem Units C from its current owners; 2) transferring the ownership of Unit A from 6126, L.L.C. to Charles Goodyear, the husband of 6126, L.L.C.’s registered manager; 3) for damages against plaintiffs as a result of the alleged improper filing of a Notice of Lis Pendens against Unit B; 4) an order instructing the Clerk of Court for Orleans Parish to cancel and erase the Notice of Lis Pendens from mortgage records; and 5) for damages against plaintiffs as a result of the alleged conspiracy to attempt to wrongfully divest the Strausses of their rights to Unit B. These matters, however, were not addressed by either of the two summary judgments ruled upon by the District Court, and they are not before us on this appeal.

      . As we have indicated, the Condominium Declaration also provides a right of first refusal and a right of redemption with respect to leases. But there is no contention that a lease is at issue in this case.