author: GUIDRY, J.

text:
    CONSTANTIN LAND TRUST v. PITRE INDUSTRIES, L.L.C.
    2016 CA 0993
    Court of Appeal of Louisiana, First Circuit.
    JULY 10, 2017
    Rehearing Denied August 29, 2017

      Robert S. Reich, Jerald L. Album, Me-tairie, LA, Counsel for Plaintiff-Appellant Constantin Land Trust
    Daniel A. Cavell, Thibodaux, LA and Richard W. Martinez, New Orleans, LA, Counsel for Defendant-Appellee Pitre Industries, LLC
    BEFORE:. WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

I?As part of ongoing litigation in this lease dispute, the lessor of a tract of land appeals a judgment denying its petition to evict the lessee based on the lessee’s failure to timely exercise the option to renew the subject lease, and the lessee has answered the appeal,

FACTS AND PROCEDURAL HISTORY

In the fall of 2005, Constantin Land Trust (“CLT”) entered into a ten-year lease agreement with Pitre Industries, LLC for the lease of 2.35 acres of land in Lafourche Parish, known as the “Texaco Dock.” According to the lease agreement, the primary term of the lease began on October 1, 2005, with the lessee, Pitre Industries, being granted the option to renew the leasé for two additional terms of ten years each.

In December 2010, the parties executed a partial termination of the lease agreement, wherein Pitre Industries released approximately one-half of the leased property, the southern portion, which CLT, in turn, leased to a third party. Then, on October 23, 2015, CLT filed the instant action for eviction, alleging that due to Pitre Industries’ failure to give timely written notice of its decision to exercise the option to renew the lease, CLT chose not to renew the lease on the retained portion of the leased property and sought return of the property. CLT further alleged that despite issuance of a notice to vacate, Pitre Industries refused to vacate and continued to occupy and use and the leased property.

In conjunction with the petition for eviction, CLT also filed a statement notifying the trial court that other litigation was pending in a different division of the same court. In that litigation, CLT was also seeking termination of the ¡lease, but based on Pitre Industries’ alleged breach of the terms of the lease agreement.

In response to these filings, Pitre Industries filed a motion to transfer and [ .¡reassign the eviction proceeding to the same division of the trial court in which the breach of lease proceedings and other actions regarding the leased property were pending. By a judgment signed December 7,.2015, the eviction action was re-allotted and transferred to the same division of the trial court in which all the prior matters involving, the same parties and the leased property were pending.

Prior to the transfer .of the eviction action, Pitre Industries answered the petition for eviction raising several exceptions and affirmative defenses. After the matter was re-allotted and transferred, the trial court held a hearing on the exceptions raised by Pitre Industries and on the merits of CLT’s eviction action. At the hearing, the trial court overruled the objections of -lis pendens, lack of procedural capacity, and res judicata raised in the exceptions filed by Pitre Industries, but deferred ruling on the objection of no cause of action. The trial court then received testimony and documentary evidence on the merits of the eviction action, following which it took the matter under advisement.

On May 5, 2016, the trial court issued an oral ruling denying the petition for eviction, finding as follows:

While I do find that there was a clear term in the lease and that the renewal was not filed in a timely basis under that lease, I also find that CLT, by the interference and harassment of clients and customers of Pitre’s, interrupted their peaceful possession—constructively interrupted their peaceful possession. And for that reason the eviction is hereby denied.

The trial court then signed a written judgment consistent with its oral ruling on June 14, 2016, which CLT appeals, and Pitre Industries has filed an answer to the appeal.

ASSIGNMENTS OP ERROR

Contending that the June 14, 2016 judgment is contrary to law and is manifestly erroneous, CLT alleges the following:

|41) The trial court committed manifest error in denying CLT’s Petition for Eviction as the evidence and testimony proved that Pitre Industries faded to provide timely written notice of its intent to renew the lease between it and CLT.
2) The trial court committed manifest error by concluding that constructive interruption of peaceful possession was grounds for denying CLT’s eviction action ... when there is no evidence of this alleged interruption in the record.
3) The trial court committed manifest error by denying CLT’s eviction action based on testimony presented in a separate ordinary proceeding seeking damages [for disturbance] of peaceful possession.

Pitre Industries has answered the appeal to assert that in the event this court should find that the trial court improperly dismissed the eviction action based on the finding that CLT had constructively interrupted Pitre Industries’ peaceful possession of the property, the eviction should nonetheless be denied because: (1) CLT’s acceptance of rental payments after the alleged expiration of the lease term effected a renewal of the lease; and (2) ambiguity existed in the lease agreement regarding the term and the time for exercising the option to renew.

DISCUSSION

A judgment either granting or denying eviction is appealable. Terrebonne Parish Port Commission v. Eagle Dry Dock & Marine Repairs, L.L.C., 14-0010, p. 13 (La. App. 1st Cir. 7/7/15), 2015 WL 4094331, at *7 (unpublished opinion). In this case, after expressly finding that Pitre Industries did not timely exercise the option to renew the lease on the subject property, the trial court nonetheless denied the action to evict based on its determination that CLT had wrongfully disturbed Pitre Industries’ peaceful possession of the property. In its second and third assignments of error, CLT contests the trial court making this determination and rendering judgment based on evidence not of record in the proceedings before the Rcourt. We find merit in this assertion.

The only evidence offered at the eviction hearing were copies of the petition for eviction, the lease in dispute, letters between the parties, rental payment checks from Pitre Industries, and the testimony of Elmo Pitre III, the managing member of Pitre Industries, and James Constantin Jr., one of the co-owners of the leased property owned by CLT.

At the eviction hearing, Pitre Industries asked Mr. Constantin to acknowledge that three other legal actions had been initiated by CLT and were pending that sought to terminate and/or enjoin enforcement of the lease in dispute. When CLT attempted to object to this line of questioning, the trial court responded, “I think he’s trying to argue that the suits filed by Constantin have interrupted the term of the lease so I’m going to allow him to ask the questions.” Mr. Constantin then acknowledged that the three other actions had been filed and were pending. Following that line of questioning, Pitre Industries asked the trial court to take judicial notice of the three other legal actions, which were pending before the same court.

One of the principal obligations a lessor has to his lessee is to protect the lessee’s peaceful possession for the duration of the lease. La. C.C. art. 2682; McCurdy v. Bloom’s Inc., 39,854, p. 7 (La. App. 2d Cir. 6/29/05), 907 So.2d 896, 901. Specifically, the lessor warrants the lessee’s peaceful possession of the leased thing against any disturbance caused by a person who asserts ownership, or right to possession of, or any other right in the thing. La. C.C. art. 2700. If a disturbance is such that the lessee can no longer use the premises for the intended use, the lessor has breached its obligation to maintain the lessee in peaceful possession. McCurdy, 39,854 at p. 7, 907 So.2d at 901. However, an action or proceeding filed adversely to a possessor (in this instance, a lessee) is not a disturbance. Naquin v. Bollinger Shipyards, Inc., 13-1638, p. 9 (La. App. 1st Cir. 5/2/14), 147 So.3d 207, 212, writ denied, 14-1091 (La. 9/12/14), 148 So.3d 933; see also La. C.C.P. art. 3659 and Union Bank v. Cottonport Insurance Exchange, 630 So.2d 975, 977 (La. App. 3d Cir.), writ denied, 637 So.2d 1049 (La. 1994) (wherein the court found that because the lessee was never denied access to the building and was never told to vacate the premises, its peaceful possession was never disturbed, despite an action for executory process being instituted and an order signed for the seizure and sale of the property). Thus, the breach of lease and other proceedings instituted by CLT against Pitre Industries, the possessor of the property, cannot constitute disturbances of Pitre Industries’ peaceful possession.

Therefore, the only grounds for a finding of disturbance of the warranty of peaceful possession would be the interference and harassment of Pitre Industries’ customers, as referred to by the trial court in its oral reasons for judgment, but no evidence of interference or harassment of Pitre Industries’ customers appears in the record before us. As argued by CLT, it is assumed that the trial court’s reference to the interference and harassment of Pitre Industries’ clients and customers is based on information presented in the other suits pending before the same court, of which the court was asked to take judicial notice.

Although a court may take judicial notice of its own proceedings, Pinegar v. Harris, 06-2489, p. 3 (La. App. 1 Cir. 5/4/07), 961 So.2d 1246, 1249, a court may not take judicial notice of disputed issues. Weatherly v. Optimum Asset Management, Inc., 04-2734, p. 5 (La. App. 1st Cir. 12/22/05), 928 So.2d 118, 122; see also La. C.E. arts. 201 and 202. As the other suits were still pending before the trial court, they were not final adjudications of which the court could take judicial notice. Hence, the trial court clearly erred in relying on such evidence to render judgment in this matter based on the theory of constructive interruption of peaceful 17possession.

As such, we will now consider CLT’s remaining contention that the trial court erred in denying the petition for eviction when the evidence established that Pitre Industries failed to provide timely written notice of its intent to renew the lease. In conjunction with this contention, we will also consider Pitre Industries’ contentions that eviction was properly denied because the lease- provisions regarding the term and time to exercise the renewal option are ambiguous and- because CLT’s receipt of rental payments after expiration of the primary term of the lease served to renew the lease.

Interpretation of the Lease Agreement

A lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668; KM, Inc. v. Weil Cleaners, Inc., 50,209, p. 6 (La. App. 2d Cir. 1/13/16), 185 So.3d 112, 116-17. The term of the lease may be agreed to by the parties or fixed by law. La. C.C, art. 2678. Thus, agreement as to the term is not an essential element of a lease. Southern Treats, Inc. v. Titan Properties, L.L.C., 40,873, p. 11 (La. App. 2d Cir. 4/19/06), 927 So.2d 677, 683, writ denied, 06-1170 (La. 9/15/06), 936 So.2d 1271.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or [^legally incorrect.- Porter v. Miller, 00-1436, p. 3 (La. App. 3d Cir. 2/28/01), 782 So.2d 1123, 1126.

In the matter before us, the lease agreement provides the following regarding the term of the lease and the option to renew:

1. The primary term of this lease shall be for a period of ten (10) - year(s), beginning on the l day of October, 2005, together with the right and option to renew for two (2) additional terms of ten (10) years, as hereinafter provided....
2. [Consideration/rent to be paid under the agreement is an annual sum of $6,000.00.]
3. For the same consideration, Lessee is hereby granted the right and option to renew the Lease for two (2) additional periods of ten (10) years, hereinafter sometimes called “the second ten (10) yéar period”, following the expiration of the' original term hereof for a total term not to exceed thirty (30) years from the commencement of the original term hereof. ... In the event the Lessee shall elect to exercise such option for the renewal and/or extension of this lease, as hereinabove set' forth, it may do so by giving written notice to Lessor mailed (postmarked) not later than ninety (90) days prior to the expiration of the original term. Said notice shall be mailed to Con-stantin Land Trust, 1305 Edwards, New Braunfels, Texas 78132.

Pitre Industries argues that the use of the phrase “primary term” in describing the initial term of the lease in paragraph one and the use of the phrase “original term” in reference to the option to renew in paragraph three, without any description or definition of the latter phrase, creates an ambiguity in the agreement that should be construed in its favor.

The words of a contract .must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. 1BC.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Lobell v. Rosenberg, 15-0247, p. 8 (La. 10/14/15), 186 So.3d 83, 89.

In this case, paragraph one of the lease agreement expressly states that the option to renew the lease agreement shall be “as hereinafter provided.” The only other provision in the lease agreement after paragraph one that mentions the option to renew is contained in paragraph three of the agreement. As’ mentioned above, in delineating the option to renew, the phrase “primary term” is not’ used in paragraph three, but instead the phrase “original term” is used. According to Webster’s New College Dictionary, “primary” is defined as “[h]appening first in time or sequence: ORIGINAL” and “original” is defined as “[preceding all others in time: FIRST.” Webster’s New College Dictionary 792 and 898 (3d ed. 2008).

The rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists or the making of a new contract when the terms express with sufficient clearness the parties’ intent. The fact that one party may create a dispute about the meaning of a contractual provision does not render the provision ambiguous. Campbell v. Melton, 01-2578, pp. 8-9 (La. 5/14/02), 817 So.2d 69, 76. Considering the generally prevailing meanings of the words “primary” and “original,” and further considering paragraph three in light of paragraph one as expressly directed in the lease agreement itself, it is not only logical, but proper to construe the phrase “original term” in the lease agreement as having the same meaning as “primary term.”

Moreover, we do not find that the use of the word “may”- in paragraph three |! nrenders the act of . giving notice discretionary. Instead, reading the provision as a whole, it is clear that the discretionary act referred to is that of exercising the option to renew and not that of giving notice, as the only act to which the phrase “may do so” could refer to is the preceding statement of “[i]n the event the Lessee shall elect to exercise such option.” As written, the sentence plainly conveys that the discretionary act to be “done” is that of electing to exercise the option to renew. Thus, we find that a proper interpretation of the applicable provisions of the lease .agreement is that in order to exercise the option to renew the subject lease agreement, written notice of the election to .exercise the option had to be mailed (postmarked) not later than 90 days prior to the expiration of the original term, with the original term being synonymous with the phrase “primary term” used in paragraph one of the lease agreement. Therefore, Pitre Industries was required, under the applicable provisions, to have mailed written notice by July 2, 2015, which undisputedly was not done in this case.

We recognize that lease cancellation is not favored in Louisiana and that a lease should only be dissolved when a lessor provides clear entitlement to dissolution. KM, Inc., 50,209 at p. 10, 185 So.3d at 119. Moreover, we further recognize the principle of judicial control of leases, which is an equitable doctrine by which the courts will deny cancellation of the lease when the lessee’s breach is of minor importance, is caused by no fault of his own, or is based on a good faith mistake of fact. Western Sizzlin Corporation v. Greenway, 36,088, pp. 13-14 (La. App. 2d Cir. 6/12/02), 821 So.2d 594, 601, writ denied, 02-2326 (La. 11/15/02), 829 So.2d 436.

However, in Louisiana, the option or right to renew a lease is never |npresumed. Hidalgo Motors, Inc. v. Opelousas Courtesy Motors, Inc., 576 So.2d 1086, 1087 (La. App. 3d Cir. 1991). Further, it has been held that time is of the essence in the renewal of a lease. Giraud v. Clark, 354 So.2d 752, 754 (La. App. 4th Cir. 1978). Thus, while the use of a different method of transmission of notice of renewal than that contemplated by the lease will not make the notice defective—if the substituted method of transmission performs the same function and serves the same purpose as the authorized method— such notice, nevertheless, will only be deemed effective if the notice is timely received. Woods v. Cities Service Oil Company, 142 So.2d 168, 169 (La. App. 3d Cir. 1962).

Circumstances similar to the matter before us were presented in American Branch Building Corporation v. Bozeman, 543 So.2d 1114 (La. App. 1st Cir.), writ denied, 548 So.2d 1231 (La. 1989). In that case, there was an ongoing dispute between the parties to a sublease as to whether a binding sublease agreement between the parties even existed. The matter was litigated, and both the trial court and the appellate court rendered judgment in favor of the defendant finding that an effective sublease existed between the parties. The plaintiff even filed a writ application with the Louisiana Supreme Court, which was subsequently denied; however, during the course of the litigation, the sublease expired by its express terms. American Branch Building Corporation, 543 So.2d at 1115.

The sublease required the defendant to give written notice at least 90 days prior to the termination of the original term of the lease. Instead, the defendant gave notice of his desire to renew the sublease 234 days after the termination of the original term of the lease. American Branch Building Corporation, 543 So.2d at 1115-16. Despite the defendant’s argument that because the plaintiff was refusing to recognize the validity of the sublease (as demonstrated by the litigation between the parties), giving notice to the plaintiff would have been a vain and useless thing, hathis court still held that untimely written notification does not relate back so as to make it timely. Thus, it was decreed that it was incumbent on the defendant to send timely written notice in order to maintain his option to renew the sublease, and having failed to do so, this court affirmed the finding that the sublease was terminated because the option to renew had not been timely exercised. American Branch Building Corporation, 543 So.2d at 1116-17.

Consistent with the holding of this court in American Branch Building Corporation, other courts, including the Louisiana Supreme Court, have similarly held that with respect to the renewal of a lease agreement, there must be compliance with the time dictates for exercising an option to renew. See Southern Ventures Corporation v. Texaco, Inc., 372 So.2d 1228, 1230 (La. 1979); Metairie PJ’s, Inc. v. Richards Clearview, L.L.C., 07-188, pp. 6-7 (La. App. 5th Cir. 8/28/07), 963 So.2d 548, 551, writ denied, 07-1906 (La. 11/21/07), 967 So.2d 1157; Sizeler Hammond Square Limited Partnership v. Gulf States Theatres, Inc., 02-759, pp. 7-10 (La. App. 5th Cir. 12/11/02), 836 So.2d 256, 260-61, writ denied, 03-0070 (La. 3/21/03), 840 So.2d 552; Heirs of Boudreaux v. Payne, 00-00719, pp. 4-5 (La. App. 3d Cir. 12/6/00), 773 So.2d 894, 897, writ denied, 00-3528 (La. 2/16/01), 786 So.2d 102; Hidalgo Motors, Inc., 576 So.2d at 1087-88. Therefore, while ongoing litigation may present a basis on which to suspend and extend an existing lease, as the matter before us does not involve the extension of an existing lease, but an attempt to renew a lease, we hold that Pitre Industries’ failure to timely give notice of its desire to exercise the option to renew extinguished the option, and the lease expired on its own terms on September 30, 2015.

jjsRental Payments

Generally, acceptance of rent after notice of default constitutes condonation of the alleged default giving rise to reinstatement of the lease. However, whether the lessor in a particular ease forgave a breach of the lease is a factual determination. Good v. Saia, 07-0145, p. 29 (La. App. 4th Cir. 9/12/07), 967 So.2d 1161, 1177. And while acceptance of rent after issuance of the required notice to vacate, but before judgment, in a summary eviction action usually vitiates the notice of eviction and prevents a lessor from obtaining a judgment of eviction, such is not necessarily the result where acceptance of rental payments occurs subsequent to providing late notice of exercising an option to renew.

In Huval v. 4 S Construction & Maintenance, Inc., 442 So.2d 1353 (La. App. 3d Cir. 1983), the lessee failed to give the lessor timely written notice of its intent to exercise its option to renew the subject lease within 60 days of expiration of the primary term of the lease, but instead, after the lease had expired according to the term recounted therein, the lessee sent the lessor payment of the increased rent recited in the option in the event the lease was renewed for another five years. Huval, 442 So.2d at 1355. The check for the increased rental payment was mistakenly negotiated by the lessor’s wife, and as a result, the lessor allowed the lessee to occupy the leased premises for one additional year, but notified the lessee that he did not consider the lease renewed because the lessee failed to provide the lessor with timely •written notice of its intention to renew the lease. Huval, 442 So.2d at 1356. The appellate court found that the lessor had not waived his right to | ^receive timely written notice of the lessee’s intent to renew the lease and affirmed the trial court’s judgment ordering the lessee to vacate the leased property pursuant to the lessor’s rule to evict. Huval, 442 So.2d at 1356-57.

In this case, Pitre Industries submitted a lease payment to CLT for the first year of the renewal period, which CLT received, but did not cash. Instead, CLT delivered the check to its legal counsel to keep and subsequently filed this action for eviction. Considering these facts, CLT’s act of receiving, but not cashing, the lease payment for the renewal period did not .constitute a waiver of CLT’s right, to receive timely written notice of Pitre,. Industries’ intent to renew the lease nor was a renewal of the subject lease confected on that basis. See also Hidalgo Motors, Inc., 576 So.2d at 1087-88.

CONCLUSION

Therefore, for the foregoing reasons,, we find that as matter of law, the trial court erred in denying CLT’s rule for eviction. As Pitre Industries failed to provide CLT timely written notice of its intent to renew the subject lease, the lease expired in accordance with its own terms on September 30, 2015. Accordingly, we reverse the judgment of the trial court and herein grant CLT’s petition for eviction. We remand this matter to the trial court to set a time by which Pitre Industries, LLC must vacate the leased property and deliver possession of the same to Constantin Land Trust. Pitre Industries’ answer to the appeal is denied as meritless. All costs of this appeal are cast to the appellee, Pitre Industries, LLC.

REVERSED, RENDERED, AND REMANDED; ANSWER TO APPEAL DENIED; MOTION TO SUPPLEMENT DENIED.

McClendon, J., concurs.

      . The record indicates that CLT had filed injunction proceedings against Pitre Industries as well.

      . In the answer filed by Pitre Industries, it only raised the alleged ambiguity in the lease agreement, but in its appellee brief, Pitre Industries further raised the acceptance of rental payments as an additional basis for affirming the trial court's judgment. See La. C.C.P. art. 2133(B).

      . In light of this determination, we deny the motion filed by Pitre Industries to supplement the record before us with evidence of those other suits.

      . The record establishes that the lease agreement was drafted by counsel for CLT. See La. C.C. art. 2056 ("In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text”).

      . The initial letter notifying CLT of its election to exercise the option to renew the lease was sent by certified mail, postmarked September 4, 2015, to James Constantin, Jr. in Norman, Oklahoma and to counsel for CLT in Metairie, Louisiana. A second notice dated September 18, 2015, was sent by certified mail to CLT to the New Braunfels, Texas address recited in the lease agreement.

      . See McCrary v. Park South Properties, 560 So.2d 38, 44 (La. App. 2d Cir.), writ denied. 563 So.2d 1156 (La. 1990), wherein the trial court found the lessee was entitled to have the initial term of the original ground lease suspended and extended by a period of time equal to and commensurate with the period of time from when the lessor first disturbed the lessee’s peaceful possession of the property to when the matter was finally adjudicated. Of note, the extension was granted by the trial court during the existing term of the lease and not after the term of the lease had already expired. That decree by the trial court was not reviewed on appeal.

      . See Billiot v. Hue, 10-1825, p. 4 (La. App. 1st Cir. 5/6/11), 2011 WL 1944120, at *2 (unpublished opinion).

      . According to the facts recited in the opinion, the parties signed the subject lease on January 1, 1976, with a primary term of five years. The lessee in that case sent the increased rental payment for the renewal period on January 26, 1982, and then sent written notice of its intent to exercise the option to renew on February 16, 1982. Huval, 442 So.2d at 1354-56.


source: Caselaw Access Project

author:
GUIDRY, J.
      McCLENDON, J.,

license: Public Domain

text:
    Angela C. BAJOIE a/k/a Angela Laws Bajoie v. JP MORGAN CHASE BANK, N.A.
    NUMBER 2017 CA 0046
    Court of Appeal of Louisiana, First Circuit.
    JULY 12, 2017
    Rehearing Denied July 26, 2017
    Rehearing Denied September 8, 2017

      Angela C. Bajoie Baton Rouge, LA Plaintiff/Appellant In Proper Person
    Kent A. Lambert, Jr. Katie L. Dysart Camalla M. Kimbrough New Orleans, LA Counsel for Defendants/Appellees Deutsche Bank Trust Company Americas F/K/A Bankers Trust Company, as trustee for RASC 2001-KS3 Trust and Wells Fargo Bank, N.A.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   GUIDRY, J.

1 ^Appellant seeks review of a judgment dismissing her claim for damages relative to executory process proceedings in which her home was seized and sold at a sheriffs sale. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

On June 25, 2001, Angela C. Bajoie, also known as Angela Laws Bajoie, executed a mortgage note for the repayment of a loan from Mortgage Lenders Network USA, Inc., in the amount of $48,750.00. In connection with the note, she executed a mortgage on her property located at 6562 Djuanna Drive in Baton Rouge, Louisiana, to secure the note. Mortgage Lenders Network USA later assigned the note and mortgage to Bankers Trust Company by notarial endorsement. Thereafter, on July 6, 2007, Bankers Trust Company, by then known as Deutsche Bank Trust Company Americas (“Deutsche Bank”), assigned the note to JPMorgan Chase Bank, N.A. (“JPMorgan Chase”).

Shortly thereafter, on July 17, 2007, the law firm of Dean Morris, L.L.P. filed a petition to enforce security interest by ex-ecutory process in the name of JPMorgan Chase in the Nineteenth Judicial District Court under docket number 557,287. In response, Ms. Bajoie instituted Chapter 13 bankruptcy proceedings in the United States Bankruptcy Court for the Middle District of Louisiana. On November 29, 2011, a motion was filed by the bankruptcy trustee to convert the Chapter 13 proceedings, because Ms. Bajoie failed to make payments according to the terms of the bankruptcy plan. Then, on March 9, 2012, the bankruptcy court dismissed Ms. Ba-joie’s Chapter 13 case.

Following the dismissal of Ms. Bajoie’s Chapter 13 case, the executory process proceedings under docket number 557,287 were re-instituted, in response to |swhich, Ms, Bajoie filed a motion for emergency injunction in another division of the Nineteenth Judicial District Court, under docket number 612,486, to stay a sheriffs sale of her property scheduled for May 30, 2012. Judge Wilson E. Fields stayed the sale. Subsequently, Ms. Bajoie filed a petition claiming damages against JPMorgan Chase under the- same docket number, 612,486, and later added claims against ASC, Wells Fargo Bank N.A., Dean Morris, L.L.P., and Deutshce Bank, for damages allegedly sustained as a result of the executory process proceedings.

On June 10, 2014, JPMorgan Chase filed a motion for summary judgment under docket number 612,486, asserting that it never filed nor authorized the filing of the executory process proceedings initiated against Ms. Bajoie, and therefore, should not be held liable for any alleged deficiencies in the proceedings. JPMorgan Chase requested that its motion be granted to dismiss all of Ms. Bajoie’s claims against it with prejudice. In support of its motion for summary judgment, JPMorgan Chase attached the affidavit of Lindsay D. House, assistant secretary for JPMorgan Chase, wherein she stated that JPMorgan Chase did not authorize the filing of the petition for executory process nor did it hire Dean Morris, L.L.P. to file such an action. JPMorgan Chase also attached a copy of a “Corporate Assignment of Mortgage” dated June 7, 2012, but signed on July 12, 2012, wherein JPMorgan Chase assigned the June 25, 2001 mortgage executed by Ms. Bajoie to Deutsche Bank.

|4The trial court denied the motion for summary judgment based on a finding that genuine issues of material fact existed precluding the grant of summary judgment. On supervisory review, however, this court granted JPMorgan Chase’s writ application, reversed the judgment of the trial court, and entered judgment in favor of JPMorgan Chase dismissing Ms. Bajoie’s claims against it with prejudice. Bajoie v. JPMorgan Chase Bank, N.A., 14-1321 (La. App. 1st Cir. 10/21/14), 2014 WL 12569825(unpublished writ action). The Louisiana Supreme Court subsequently denied a writ application filed by Ms. Ba-joie seeking review of that writ decision. Bajoie v. JPMorgan Chase Bank, N.A., 14-2611 (La. 3/6/15), 160 So.3d 1287.

In the meantime, in the executory process proceedings instituted under docket number 557,287, the trial court granted an ex-parte motion to substitute Deutsche Bank as proper party plaintiff on February 22, 2013. Then, on October 1, 2014, Ms. Bajoie’s property was sold at a sheriffs sale. Following the sale, Ms. Bajoie was served with a notice for eviction dated March 24, 2015, ordering her to vacate the property by April 10, 2015. In response to the eviction action, Ms. Bajoie filed a “Petition for a Temporary Restraining Order Suspending the Eviction and/or Preliminary Injunction and/or Permanent Injunction and/or for the Return of the Property and to Annul the Sheriff Sale” on June 23, 2015. Judge William A. Morvant summarily denied the relief requested in the petition, stating:

[T]he request for a TRO is made eight months after the sheriffs sale in this executory proceeding was held and the executory proceeding was completed. It is an out' of time attack on the sale and mover has shown no basis in law or in fact for the relief requested. The court also questions whether the relief sought regarding suspension of any | ^pending eviction proceedings should have been instituted in a separate suit so as not to violate random allotment. Moreover, mover has not shown any basis for irreparable injury nor has mover complied [with] CCP 3603(A)(2).

As for the damages action under docket 612,486, on March 9, 2016, Wells Fargo and Deutsche Bank filed a dilatory exception urging the objections of vagueness and ambiguity and a peremptory exception urging the objections of res judicata and no cause of action. On May 23, 2016, Dean Morris, L.L.C. filed exceptions raising the same objections as raised by Wells Fargo and Deutsche Bank. The trial court scheduled those exceptions to be heard on the same date and in the same hearing as Wells Fargo and Deutsche Bank’s exceptions. Following a hearing on June 27, 2016, at which Ms. Bajoie was represented by counsel, the trial court rendered .judgment sustaining the exception raising the objection of res judicata. In a July 25, 2016 judgment, the trial court decreed that it was granting the peremptory exception raising the objection of res judicata, and in so ruling, it denied the exceptions raising the objections of vagueness, ambiguity, and no cause of action as moot. Finally, the court dismissed Ms. Bajoie’s claims against Wells Fargo and Deutsche Bank with prejudice.

|hMs. Bajoie has appealed the July 25, 2016 judgment, in proper person.

DISCUSSION

On appeal, Ms. Bajoie essentially challenges the trial court’s decision to sustain Wells Fargo and Deutsche Bank’s peremptory exception raising the objéction of res judicata to dismiss her suit with prejudice. Initially, we observe that although at the June 27, 2016 hearing, the trial court heard and considered the exceptions filed by the Dean Morris law firm, as well as those asserted by Wells Fargo and Deutsche Bank, the July 25, 2016 judgment only mentions and renders judgment in favor of Wells Fargo and Deutsche Bank. According to a January 4, 2017 minute entry, the trial court apparently signed a second judgment relative to the June 27, 2016 hearing; however, that judgment does not appear in the record before us.

Turning to the judgment before us, we find that the trial court erred in finding that res judicata barred Ms. Bajoie’s action for damages. The doctrine of res judi-cata is defined by La. R.S. 13:4231, which provides:

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

However, there are exceptions to the broad application of res judicata and .any doubt concerning its applicability is to be resolved against the party raising the objection. Avery v. CitiMortgage, Inc., 08-2052, p. 5 (La. App. 1st Cir. 5/13/09), 15 So.3d 240, 243: see also La. R.S. 13:4232.

In Avery, this court found that res judi-cata barred the. plaintiff s claim that the executory process judgment was a nullity, because the plaintiff could not show that the debt was legally unenforceable, that the debt had been extinguished, that the procedure required by law had not been followed, or that proof of any of those grounds, if any existed, did not exist at the time of the executory process proceedings, Avery, 08-2052 at p. 8, 15 So.3d at 244-45. As for the plaintiffs negligence claim, however, this court found that “[t]he complicated procedural posture of the [executory proceeding and the ordinary proceeding] in relation to each other and the unsettled nature of the law constitute, exceptional circumstances justifying relief from the effect of the doctrine [of res judicata ] as to the claim for damages.” Avery, 08-2052 at pp. 7-8, 15 So.3d at 244 (citing La. R.S. 13:4232(A)(1)).

Like the plaintiff in Avery, who alleged that the mortgagee failed to properly credit his account, in her “Third Amended and Supplemental Petition for Damages,” Ms. Bajoie alleged the following as the injurious acts committed by Wells Fargo and Deutsche Bank:

23.
J. Angela Bajoie worked to pay the mortgage note pursuant to an agreement that was reached with America’s Servicing Company, however, America’s Servicing Company would accept certain payments and send others back to Angela Bajoie;
K. The payment issue described in Paragraph 22(J) herein created an opportunity for the June 25, 2001, mortgage note to be foreclosed upon;
24.
I sWells Fargo Bank, N.A., is liable to Angela Bajoie in the following manners:
A. Breaching its payment agreement by. sending submitted payments back to Angela Bajoie and failing to properly account for the payments it received, which caused the foreclosure process to proceed;
B. Completing and issuing a fraudulent assignment of mortgage note ■ for the purposes of aiding in the Foreclosure Filing;
C. Unfair Trade Practices with respect to the breach of its payment agreement with Angela Bajoie, and in its issuance of a fraudulent assignment of mortgage note for the purposes of aiding in the Foreclosure Filing; and
D. Causing the home of Angela Bajoie to be foreclosed upon, seized and sold.
25.
Deutsche Bank Trust Company Americas is liable to Angela Bajoie for the actions ofits mandatary/attorney-in-fact Wells Fargo Bank, N.A.

As recognized by this court in Avery, Ms. Bajoie was procedurally prohibited from bringing her ordinary negligence action in the executory proceeding. See Avery, 08-2052 at p. 7, 15 So.3d at 244. When a party is procedurally barred from bringing an ordinary action in an executo-ry proceeding, the doctrine of res judicata does not bar him from raising those claims in another proceeding. Deutsche Bank Trust Company America v. Ochoa, 12-800, p. 5 (La. App. 5th Cir. 5/23/13), 120 So.3d 735, 739. Hence, in accord with this court’s decision in Avery, we reverse the trial court’s judgment sustaining the peremptory exception raising the objection of res judicata as to Ms. Bajoie’s claim of damages. See also Aaron & Turner, L.L.C. v. Perret, 07-1701, p. 6 (La. App, 1st Cir. 5/4/09), 22 So.3d 910, 914 (on rehearing), writ denied, 09-1148 (La. 10/16/09), 19 So.3d 476 (“To the extent that the trial judge in this ordinary proceeding relied on a ruling made by the judge in the executo-ry process action, that reliance was in error”); Wells v. Standard Mortgage Corp., 02-1934, p. 7 (La. App. 4th Cir. 7/9/03), 865 So.2d 112, 116, writ denied, 03-2262 (La. 11/14/03), 858 So.2d 439.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court sustaining the peremptory exception raising the objection of res judipata and dismissing with prejudice Ms. Bajoie’s claim for- damages against Wells Fargo and. Deutsche Bank. We pretermit consideration -of the remaining assignments of error/arguments raised by Ms. Bajoie and remand this, matter to the trial court for further consideration consistent with the reasoning and law cited herein. All ..costs of this appeal are cast to the appellees, Wells Fargo. Bank, N.A. and Deutsche Bank Trust Company Americas.

REVERSED AND REMANDED.

McClendon, J., concurs for reasons assigned.

McCLENDON, J.,

concurring.

Although I find the facts in Avery v. CitiMortgage, Inc., 08-2052 (La.App. 1 Cir, 5/13/09), 15 So.3d 240 to be distinguishable, I nonetheless find its holding to be controlling. Therefore, I concur in the result reached by the majority.

      , According to an Officer’s Certificate and a corporate resolution that appears in the record, the corporate name of Bankers Trust Company was changed to Deutsche Bank National Trust Company on April 15, 2002.

        . ASC stands for America's Servicing Company.

      . In an email dated November 21, 2014, a representative of Deutsche Bank explained to Ms. Bajoie that "Deutsche Bank is the Trustee and we manage the trust that your mortgage is in. However, Wells Fargo owns and services your loan and is responsible for the [executory process] proceedings.”

      . In a letter dated August 26, 2014, JPMorgan Chase provided the following explanation to Ms. Bajoie regarding why it executed the June 7, 2012 assignment:
      As you know, your loan originated with Bank One, which merged with Chase in 2004. Prior to the merger, you refinanced your loan with America’s Servicing Compa-
      ny, paying off your debt to Bank One. Please note that this is why we could not locate your loan in our systems.
      While Chase does not have an interest in your property, we still needed to complete an Assignment of Mortgage to transfer the ownership of the loan from Bank One to Deutsche Bank. Any delay in reassignment had no effect on your loan's servicing by America's Servicing Company. We are enclosing a copy of the assignment for your records.
      Chase has had no part in any pending foreclosure of your property. As detailed in the enclosed signed Affidavit, Chase did not authorize filing foreclosure and did not hire Dennis [sic] Morris LLP to begin foreclosure. We have verified with the foreclosure attorney that Chase has been removed as a plaintiff.

      . Wells Fargo and Deutsche Bank previously filed exceptions raising all the same objections, except res judicata, on October 22, 2014, but they were overruled by the trial court. Wells Fargo and Deutsche Bank then filed a writ application with this court seeking supervisory review of the trial court’s ruling. On supervisory review, this court granted the writ application, reversed the judgment of the trial court, and rendered judgment sustaining the objections as to vagueness and ambiguity. The matter was then remanded to the trial court with instructions to allow Ms. Bajoie "to attempt to remove the ambiguity and vagueness” and “to assert what, if anything, the defendants did or did not do relative to these, or any other events, that have allegedly caused her harm, and describe, if she can, any harm suffered. Failing this, the plaintiff's petition should be dismissed. If the plaintiff amends her petition to remove the ambiguity and vagueness, the trial court must then address the exception of no cause of action.” Bajoie v. JPMorgan Chase Bank, N.A., 15-1540 (La. App. 1st Cir. 2/1/16)(unpublished writ action)
      The trial court gave Ms. Bajoie 15 days to file an amended petition in accordance with this court’s writ decision. On April 4, 2016, an amended petition drafted by legal counsel was filed on behalf of Ms. Bajoie.

      . An original hearing on the exceptions filed by Wells Fargo and Deutsche Bank was scheduled for April 25, 2016; however, during the hearing, the trial court granted a joint request for a continuance "to allow defendants to respond to the newly amended claims of plaintiff and to allow plaintiff to respond to exceptions filed by the defendants.” At the rescheduled hearing held on June 27, 2016, the trial court considered not only the exceptions filed by Wells Fargo and Deutsche Bank, but also those filed by Dean Morris law firm.


text:
    M/V RESOURCES LLC v. LOUISIANA HARDWOOD PRODUCTS LLC, Louisiana Rural NMTC Forestlands LLC, and Roy O. Martin Lumber Company LLC
    NUMBER 2016 CA 0758
    Court of Appeal of Louisiana, First Circuit.
    JULY 26, 2017
    Rehearing Denied September 14, 2017

      William C. Shockey, Bradley C. Stid-ham, Baton Rouge, LA, Counsel for Plaintiff/Appellant M/W Resources, LLC
    Charles S. Weems, Evelyn I. Breithaupt, Alexandria, LA, Counsel for Defendant/Appellee Roy 0. Martin Lumber Co. LLC
    Ralph B. Chustz, New Roads, LA, Counsel for Defendant/Appellee Roy 0. Martin Lumber Co. LLC
    Peter F. Caviness, Opelousas, LA, Counsel for Defendants/Appellees Louisiana Hardwood Products LLC, Louisiana Hardwood Forestlands LLC, and Louisiana Rural NMTC Forest Lands LLC
   GUIDRY, J.

12Plaintiff, MW Resources, LLC, appeals from a judgment of the trial court granting cross motions for partial summary judgment in favor of plaintiffs in reconvention, Louisiana Hardwood Products, LLC; Louisiana Hardwood Forestlands, LLC; Louisiana Rural NMTC Forestlands, LLC; and Roy 0. Martin Lumber Company, LLC and from an order of the trial court denying its request for leave to file a supplemental and amending petition. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 22,1960, Ross J. Hackney and Frances Burnett Hackney (collectively “the Hackneys”) sold to Hillyer Deutsch Edwards, Inc. (HDE) “[a]ll of the timber and trees of every kind and species (as hereinafter more specifically defined) being, standing, lying, growing and to grow” on certain enumerated tracts of land for the sum of $55,000.00, plus payment annually of all state and parish ad valorem taxes on the lands therein described, and granted HDE a period of fifty (50) years from the date thereof within which to grow, cut, and remove timber from the lands therein described (hereinafter “Hackney Deed”).

Thereafter, on April 16, 1956, the Hackneys and HDE executed an amendment to their previous agreement, wherein the parties extended the fifty (50)-year period within which HDE had to grow, cut and remove timber from the lands therein described to a period of ninety-nine (99) years from the date of the original instrument. In consideration thereof, HDE paid the Hackneys the sum of $2,000.00 and agreed to continue to pay annually all of the state ad valorem taxes on the lands described therein. Additionally, HDE agreed that during the last ten (10) years of the extended term, it would confine its operations to cutting and removing merchantable timber only.

IsOver the years, the rights of HDE under the Hackney Deed were transferred to subsequent companies. On February 22, 1996, Roy 0. Martin Lumber Company, LLC (Martin) succeeded to the interest of HDE under the Hackney Deed. Thereafter, Martin entered into a timber rights agreement with Louisiana Hardwood Products, LLC (Louisiana Hardwood) under which Louisiana Hardwood acquired certain rights pertaining to timber on multiple tracts of land subject to the Hackney Deed for a period of thirteen months. Martin also entered into a timber rights agreement with 'Louisiana Hardwood For-estlands, LLC (Louisiana Forestlands) under which Louisiana Forestlands acquired certain rights pertaining to timber on multiple tracts of land subject to the Hackney Deed for a period of twenty years, with the term beginning upon the expiration of the timber rights conveyed to Louisiana Hardwood. Louisiana Forestlands subsequently entered into a partial assignment of timber rights agreement with . Louisiana Rural NMTC Forestlands, LLC (NMTC) under which ÑMTC acquired certain rights pertaining to timber on multiple tracts of land subject to the Hackney Deed.

On August 25, 2015, M/V Resources, LLC (M/V Resources), the present owner of a part of the property formerly owned by the Hackneys, filed a petition for declaratory judgment and injunction, asserting that the Hackney Deed constituted a sale of the timber and trees on the Hackney Deed tract on December 22,1950, and the creation of a separate timber estate of the trees then existing. M/V Resources further asserted that during the past five years immediately prior to the filing of the petition, Louisiana Hardwood had cut and removed trees from the M/V Resources tract, which were not in existence as of December 22, 1950; were not conveyed by the Hackneys- to HDE, Louisiana Hardwoods’ predecessor in interest, by the Hackney Deed; were not a part .of the separate timber estate created by the Hackney Deed; and were owned by M/V Resources as the owner of the M/V Resources tract. Accordingly, M/V Resources asserted that based on the terms of the Hackney Deed, and the fact that all of the timber and trees on the M/V Resources tract as of December 22, 1950, had been cut and removed from the M/V Resources tract, Louisiana Hardwood, Louisiana For-estlands, NMTC, and Martin did not have any continuing rights in and to the timber and trees on the M/V Resources tract or the* use of the tract for the purposes of growing and harvesting timber.

As such, M/V Resources sought a declaratory' judgment, declaring that the Hackney Deed, as amended by the extension, was a sale of standing timber creating a separate timber estate, with-a term for removal of the timber and . trees then existing.on the M/V Resources tract.of ninety-nine years, expiring by operation of law upon the removal of the timber and trees in existence at the time of the Hackney Deed, and was not a lease of the land for a term of ninety-nine years. M/V Resources further sought judgment declaring that the Hackney Deed conveyed only such timber and trees that existed as of December 22,1950, and that Louisiana Hardwood at no time had any right to enter upon the M/V Resources tract to cut timber and trees sprouting after December 22, 1950, or to replant areas with the expectation of future harvest. Finally, M/V Resources sought judgment declaring that all rights granted by the Hackney Deed in and to timber and trees on the M/V Resources tract have lapsed by operation of law, and M/V Resources is the owner of all timber and trees on the M/V Resources tract.

M/V Resources also requested that the trial court issue, an injunction, enjoining and prohibiting Louisiana Hardwood, NMTC, and Martin from entering upon the M/V Resources tract in an effort to exercise any rights that they may claim they have pursuant to the Hackney Deed, as amended.

1 ^Louisiana Hardwood and NMTC answered the petition and, along with Louisiana Forestlands, filed a reconventional demand asserting that the agreement entered into between the Hackneys and HDE was a lease of said tracts of land for a period of fifty (50) years, whereby HDE was granted rights to grow and harvest timber and trees upon said tracts for a period of fifty years, which term was extended for an additional 49 years. Therefore, Louisiana Hardwood, Louisiana For-estlands, and NMTC asserted that HDE and its successors in title were entitled to grow timber and trees on said tracts from the date of the original agreement until expiration of the ninety-nine year, term. As successors in title to HDE, Louisiana Hardwood and NMTC asserted that they are lessees of and are entitled to grow and harvest timber upon .said tracts owned by M/V Resources for a period of twenty years from May 8, 2009.

Louisiana Hardwood, Louisiana Forest-lands, and NMTC sought a declaratory judgment against M/V Resources, declaring that the Hackney Deed dated December 22, 1950, and the agreement extending the term of the Hackney Deed to ninety-nine years is a lease of said tracts of land to grow and harvest timber and trees, the hope and expectancy of same being included in said agreements, for a period of ninety-nine years. They also sought judgment declaring that they were owners of all timber and trees as described in said agreements for the periods of time set forth in the timber rights agreements with Martin, and as owners of said timber and trees, they are entitled to remove and harvest any timber and trees on said tracts now owned by M/V Resources for the duration of timé set forth in their timber rights agreements with Martin.

Furthermore, Louisiana Hardwood, Louisiana Forestlands, and NMTC alleged that M/V Resources, had cut, removed, and cleared timber from approximately sixty acres of said tracts described in its original petition for wildlife food plots, roads, agricultural, and other purposes and have maintained such ^cleared areas in such a manner as to prevent Louisiana Hardwood, Louisiana Forestlands, and NMTC from growing timbér and trees thereon as provided in the Hackney Déed. Therefore, Louisiana Hardwood, Louisiana Forest-lands, and NMTC also sought an injunction, enjoining, restraining and prohibiting M/V Resources from cutting, removing, and clearing any timber from the said tracts owned by M/V Resources and from maintaining any previously cleared lands in such a manner as to prevent the growth of trees and timber thereon, said injunction to be for the duration of the Hackney Deed as extended.

Martin also answered M/V Resources’s petition, asserting that the Hackney Deed, as amended and extended, not only created a timber estate in favor of HDE, but it also created real rights in HDE and its successors in title-to utilize the surface of the lands therein described during the ninety-nine year term for the purpose of cultivating, growing, cutting, and removing all of the timber and trees of every kind and species, then existing or to exist, growing or to grow, along with unrestricted access and other surface rights associated with long term growth of timber and production of timber products, in the nature of a lease, subject only to the specific limitations set forth in the Hackney Deed, as extended.

Thereafter, on October 19, 2015, M/V Resources filed a motion for partial summary judgment, asserting that it was entitled to summary judgment as a matter of law on its claims for declaratory relief. In December of 2015, Louisiana Hardwood, Louisiana Forestlands, NMTC, and Martin filed cross motions for partial summary judgment, asserting that they were entitled to summary judgment as a matter of law on their claims for declaratory relief.

The motions were set for hearing on January 7, 2016. The morning of the hearing, M/V Resources requested leave of court to file an amended petition for declaratory judgment and injunction to assert, in the alternative, that if the court finds that the Hackney Deed created anything more than a separate timber estate in |7favor of HDE, conveying timber and trees then in existence on December 22, 1950, on five tracts owned by the Hackneys, including the M/V Resources tract, then the Hackney Deed created a usufruct in favor of HDE, which expired on December 22, 1980. Thereafter, the trial court heard argument from counsel on their motions and cross motions for partial summary judgment, including the issue of usu-fruct. At the conclusion of the hearing, the trial court found that the use of the words “growing” and “to grow,” while they do not trump the number of times words for “a sale” were used in the Hackney Deed, looking at the entirety of the contract, the intent of the parties was that the Hackney Deed would be a sale coupled with a lease.

The trial court thereafter signed a judgment denying the motion for partial summary judgment filed by M/V Resources and granting the motions for partial summary judgment filed by Louisiana Hardwood, Louisiana Forestlands, NMTC, and Martin and declaring that:

1) The December 22, 1950 Timber Agreement, as amended and extended, between [the Hackneys] and [HDE] is a sale to [HDE] of all timber and trees as defined therein then standing and existing on the lands described therein, whether or not merchantable, as well as a lease of the said lands to [HDE] for the purpose of growing, cultivating and harvesting timber and trees to grow on said lands during the ninety-nine (99) year term of the lease, and for the exercise of ancillary rights, subject to the provisions of the said Timber Agreement, as amended and extended.
2) [Martin], [Louisiana Hardwood], [Louisiana Forestlands], and [NMTC] and their successors in title, as the successors-in-title of [HDE], possess all of the rights, titles and privileges of [HDE] under the terms of the said Timber Agreement, as amended and extended, for the time periods set forth in their respective deeds of acquisition during the entire term of ninety-nine (99) years from December 22,1950.
3) As owners of the timber and trees located on and lessees of said lands, [Martin], [Louisiana Hardwood], [Louisiana Forestlands], and [NMTC] and their successors in title are entitled to grow, cultivate, cut, remove, harvest and own timber and trees, and to exercise all other rights of possession and use as set forth in the December 22, 1950 Timber Agreement, as amended and extended, on the lands described therein, subject only to the limitations set forth [ ¡¿herein, during the entire term of ninety-nine (99) years from December 22,1950.

The trial court judgment further ordered that the lawsuit of M/V Resources be dismissed in all other respects with prejudice at its cost. The trial court also signed an order denying M/V Resources’ request for leave of court to file a supplemental and amending petition.

M/V Resources now appeals from the trial court’s judgment, asserting that the trial court erred in failing to find that the Hackney Deed, as amended and extended, was a sale of timber rights creating a separate timber estate composed of the timber and trees then existing, with a term of ninety-nine years for the removal thereof, expiring by operation of law upon the removal of the timber and trees in existence at the time of the Hackney Deed; in denying M/V Resources’s request for leave to amend its petition; and, in the alternative, in failing to find that the Hackney Deed, as amended, was a sale of timber and trees that created a separate timber estate, coupled with a usufruct expiring at the end of thirty (30) years.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1st Cir. 12/30/02), 836 So.2d 484, 486. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on |3the motion. La. C.C.P. art. 966(F)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La. 6/15/07), 958 So.2d 1199.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2).

DISCUSSION

Characterization of the Hackney Deed

As with other contracts, deeds must be interpreted so as to ascertain the true intent of the parties. Ford v. Lester, 48,932, p. 16 (La. App. 2nd Cir. 5/14/14), 139 So.3d 22, 30, writ denied, 14-1567 (La. 11/7/14), 152 So.3d 175. This intent is to'be determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. La. C.C. art. 2046; Boh Bros. Construction Co., LLC v. State, Department of Transportation and Development, 08-1793, p. 4 (La. App. 1st Cir. 3/27/09), 9 So.3d 982, 984, writ denied, 09-0856 (La. 6/5/09), 9 So.3d 870.

[ mWhen the words Qf a contract are clear and explicit and lead to no absurd conséquences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046; Boh Bros. Construction Co., LLC, 08-1793 at p. 4, 9 So.3d at 984. The rules of interpretation establish that when a clause in a contract is clear and unambiguous, the letter of the clause should not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 2046, comment (b); Boh Bros. Construction Co., LLC, 08-1793 at. p. 4, 9 So.3d at 984.

To determine the meaning of words in a contract, a court should give them their “generally prevailing meaning.” La. C.C. art. 2047. If a word is susceptible of different meanings, it “must be interpreted as having the meaning that best conforms to the object of the contract.” La. C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Furthermore, every provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050; Boh Bros. Construction Co., LLC, 08-1793 at p. 4, 9 So.3d 982, 985.

’ When a contract is subject to interpretation from the four comers of the in-strumeht, without the necessity of extrinsic evidence, that interpretation is a matter of law. NAB Natural Resources, LLC v. Willamette Industries, Inc., 28,555, p. 5 (La. App. 2nd Cir. 8/21/96), 679 So.2d 477, 480.

The Hackney Deed at issue in the instant case provides, in pertinent part:

[O]n this 22nd day of December, A.D. 1950 ... [the Hackneys] ., and in the consideration of the price -and sum of Fifty-Five Thousand and no/100 ($55,-000.00) Dollars ... they have bargained and sold, and do by these presents bargain, sell, transfer, convey and deliver ... unto [HDE] ... the following described property, to-wit:
All of the timber and trees of every kind and species (as hereinafter more specifically defined)', being,' standing, lying, growing and ⅛ grow on the following described lands....
***
The term “Timber and Trees” 'as used herein is defined as and includes a) all timber and trees of every kind and species now being, standing and lying on the above described lands and to grow, stand and lie on said lands during the period of fifty (50) years hereinafter set forth, the expectancy and hope being included, b) all tree tops, branches and stumps now existing or to exist during said period, 'and (c) all of the above whether merchantable or unmerchanta-ble:
The Vendee, its successors, agents, servants and assigns is granted a period fifty (50) years from the date hereof within which to grow,'cut and remove timber from the lands herein described. It is granted the free rights of ingress and egress, -the right to build roads, bridges and tramways, to build and erect sawmills and other equipment necessary to cut, remove, manufacture and process timber and its products, and to build houses to house its employees. At the end of the period herein fixed, Vend-ee shall have the right to remove any buildings and improvements.
The Vendee, its successors, agents, servants and assigns shall have the right during said period of fifty (50) years to go in and upon said lands at any time, and as many times as it deems necessary, for the purpose of cultivating, growing, cutting and removing timber and trees. The cessation of operations, the cutting of all timber and trees, or the temporary abandonment of said operations shall not terminate Vendee’s rights hereunder or shorten the period hereunder granted, unless notice of abandonment be given Vendors, as hereinafter specified.
As part of the consideration of this sale, the Vendee agrees to pay annually all of the State and Parish ad valorem taxes on the lands herein described, and shall continue to pay the same during the term of this contract until such time as Vendee, or its successors or assigns has given Vendors ... their heirs, successors or assigns written notice that it intends to relinquish all of its rights hereunder and no longer intends to conduct operations on the lands herein described ....

On April 16, 1956, the same parties executed an amendment to their original agreement, wherein:

[F]or the sum and price of TWO THOUSAND ($2,000.00) DOLLARS ,.. [the Hackneys] ... do hereby extend said fifty (50) year period to a period of ninety-nine (99) years from the date of said instrument.
As a further consideration for this extension to a period of ninety-nine (99) years from the date of said instrument, [HDE] agrees to continue to pay annually all of the State ad valorem taxes on the lands described in the said instrument during the term of the contract, as extended, or until said Corporation its successors or assigns has given vendors ... written notice that it intends to relinquish all of its 11 ¡rights hereunder and no longer intends to conduct operations on the lands described ....
As a further consideration for this extension, [HDE] agrees that during the last ten (10) years of the extended term it will conduct its timber cutting, logging, cultivation, growing, removing, or sawmill operations so as to confine such operations'to the cutting and removal of merchantable timber only.

Reading the Hackney Deed, as amended and extended, it is evident that the parties intended to sell the timber then existing on thé property at the time of the sale, as well as give HDE and its successors the right to grow and cut timber for a term of ninety-nine years. The Hackney Deed, together with the 1956 amendment, clearly provides that it is conveying all timber and trees “being, standing, lying, growing and to grow.” (Emphasis added.) Further, timber and trees is defined in the Hackney Deed as “all timber and trees ... now being, standing and lying on the above described lands and to grow, stand, and lie on said lands during the period” of ninety-nine years. (Emphasis added.) The use by the parties of the term “to grow” clearly contemplates future growth.

Furthermore, the Hackney Deed, as amended and extended, gave HDE and its successors various rights, which are not merely accessorial to a timber vendee. See Martin Timber Company, Inc. v. Pegues, 30,631, p. 7 (La. App. 2nd Cir. 7/6/98), 715 So.2d 728, 732, writ denied, 98-2124 (La. 12/11/98), 729 So.2d 590. These rights in-elude: the free rights of ingress and egress; the right to build roads, bridges and tramways; the right to build and erect sawmills and other equipment necessary to cut, remove, manufacture and process timber and its products; and the right to build houses to house its employees. Additionally, the Hackney Deed, as amended and extended, specifically gave HDE and its successors “the right during said period of [ninety-nine] years to go in and upon said lands at any time, and as many times as it deems necessary, for the purpose of cultivating, growing, cutting and removing timber and trees.” (Emphasis added.) The Hackney Deed, as | ^amended and extended, also provided that “the cessation of operations, cutting of all timber and trees, or the temporary abandonment of said operations shall not terminate Vendee’s rights [under the deed] or shorten the period hereunder granted.... ”

Accordingly, reading the language of the Hackney Deed, as amended and extended, as a whole, demonstrates that the parties intended that HDE and its successors would acquire the right to grow timber and trees during the ninety-nine year term, which right is in the nature of a lease of the land. See La. C.C. art. 2668; see also NAB Natural Resources, LLC, 28,555 atp. 5, 679 So.2d at 480. In consideration thereof, HDE agreed to pay $55,000.00, plus $2,000.00 to extend the term to ninety-nine years; agreed to pay ad valorem taxes on the land during the term of the contract until such time as HDE or its successors gave the Hackneys or its successors written notice that it intended to relinquish its rights under the contract; and agreed in further consideration “during the last ten (10) years of the extended term to conduct its timber cutting, logging, cultivation, growing, removing, or sawmill operations so as to confine such operations to the cutting and removal of merchantable timber only.”

Therefore, based on our de novo review of the record, we find that the Hackney Deed, as amended and extended, is a sale to HDE and its successors of all timber and trees existing on the described lands at the time of the sale as well as a lease of the said lands to HDE and its successors for the purpose of growing, cultivating, and harvesting timber and trees to grow on said lands during the | uninety-nine year term of the lease. Accordingly, we find no error in the trial court’s judgment finding that Louisiana Hardwood, Louisiana For-estlands, NMTC, and Martin are entitled to partial summary judgment in their favor.

Motion for Leave to Amend Petition

M/V Resources also asserts on appeal that the trial court erred in denying its request for leave of court to file an amended petition for declaratory judgment and injunction and asserts, in the alternative, that if the court finds that the Hackney Deed created anything more than a separate timber estate in favor of HDE, conveying timber and trees then in existence on the five tracts owned by the Hackneys, including the M/V Resources tract, then the Hackney Deed created a usufruct in favor of HDE, which expired on December 22,1980.

As noted previously, M/V Resources requested leave of court to file an amended petition on the day of the hearing on the parties’ motions for partial summary judgment. During the hearing, the issue of whether a usufruct was created or existed was raised and addressed by the trial court, and counsel for Louisiana Hardwood, Louisiana Forestlands, NMTC, and Martin did not object. The trial court considered allowing M/V Resources the opportunity to amend its petition to assert that the Hackney Deed, as amended and extended, was a sale coupled with a usufruct, however, counsel for M/V Resources noted that if the court ruled that the Hackney Deed, as amended and extended, was a sale and a 11filease, then the issue of usu-fruct was moot. Thereafter, the trial court stated that, while “it would be interesting to look at the usufruct ... when you look at everything involved, particularly the entirety of the contract ... I believe that these parties, they intended that it would be a sale coupled with a lease.... ”

From our reading of the record, it is clear that the issue of usufruct was presented to the trial court, and that the trial court rejected it, finding that the Hackney Deed, as amended and extended, was a sale coupled with a lease. Furthermore, because we find that the intent of the parties in entering into the Hackney Deed, as amended and extended, was to sell to HDE and its successors all timber and trees existing on the described lands at the time of the sale as well as to lease the said lands to HDE and its successors for the purpose of growing, cultivating, and harvesting timber and trees to grow on said lands during the ninety-nine year term of the lease, we likewise reject M/V Resources’ argument on appeal regarding usufruct. See IP Timberlands Operating Company, Limited v. Denmiss Corporation, 93-1637, pp. 16-17 (La. App. 1st Cir. 5/23/95), 657 So.2d 282, 294, writs denied, 95-1958, 95-1593, 95-1691 (La. 10/27/95), 661 So.2d 1348.

As such, we find no abuse of the trial court’s discretion in denying M/V Resources’ motion for leave of court to amend its petition to assert that the Hackney Deed created a usufruct in favor of HDE, which expired on December 22, 1980. See Stockstill v. C.F. Industries, Inc., 94-2072, p. 7 (La. App. 1st Cir. 12/15/95), 665 So.2d 802, 810, writ denied, 96-0149 (La. 3/15/96), 669 So.2d 428.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to WV Resources, LLO.

AFFIRMED.

      . The timber rights, agreement states that the term of the agreement shall expire on May 8, 2009, with respect to the right to maintain, ■ manage, store, harvest, cut and remove one or more times during the term of the agreement all merchantable trees located on the property owned by or leased by Martin. However, the term of the agreement shall expire twenty years from tire date of the agreement with respect to the right to enter into, manage, and retain revenue from hunting and other recreational leases on the property owned or leased by Martin.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2010. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article as applicable in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . M/V Resources asserts on appeal that the consideration paid by HDE, particularly the consideration paid for the extension, supports its argument that the Hackney Deed, as amended and extended, is not a lease. However, as noted above, money was not the only benefit received by the Hackneys. See McCain v. Continental Can Company, Inc., 299 So.2d 454, 458 (La. App. 2nd Cir.), writ refused. 302 So.2d 308 (La. 1974); see also Daigle v. Vanderpool, 02-2005, p. 7 (La. App. 1st Cir. 6/27/03), 858 So.2d 552, 556 (price need not be in money but may consist of other considerations). Accordingly, this argument is without merit.

      . M/V Resources relies on Cooley v. Meridian Lumber Co., 195 La. 631, 197 So. 255 (1940), and Taylor v. Southland Lumber Co. Inc., 162 La. 535, 110 So. 746 (1926), as support for its argument that the Hackney Deed, as amended and extended, was a sale of timber rights creating a separate timber estate composed of timber and trees then existing, with a term of ninety-nine years for the removal thereof, expiring by operation of law upon the removal of the timber and trees in existence at the time of the Hackney Deed. However, Cooley and Taylor are readily distinguishable from the agreement at issue in the instant case, as the deeds in those cases did not contemplate future growth or give vendees rights beyond those necessary to remove timber from the land. Cooley, 195 La. at 634-635, 197 So. at 256; Taylor, 162 La. at 536, 110 So. at 746. Furthermore, the deeds at issue in Cooley and Taylor did not provide that the vendee could "go in and upon the lands at any time, and as many times as necessary for the purpose of cultivating, growing, cutting and removing timber and trees[,]” nor that the "cessation of operations [or] cutting of all timber and trees. .. shall not terminate vendee’s rights” under the deed "or shorten the period [thereunder] granted.” Therefore, we find this argument without merit.