Phoenix Associates Land Syndicate, Inc. VS E. H. Mitchell & Company, L.L.C. and Steven M. Furr
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2007 CA 0108 PHOENIX ASSOCIATES LAND SYNDICATE INC VERSUS E H MITCHELL CO AND STEVEN M LL c FURR Judgment rendered September 14 2007 Appealed from the 22nd Judicial District Court in and for the Parish of St tAl Tammany Louisiana Trial Court No 2003 12894 Honorable THOMAS E Raymond S Childress Judge SCHAFER III ATTORNEYS FOR GEORGE DENEGRE JR PLAINTIFF APPELLANT SHANNON S HOLTZMAN PHOENIX ASSOCIATES LAND KELLY B BECKER SYNDICATE INC NEW ORLEANS LA AND AUGUSTJ HAND COVINGTON LA REGINALD J LAURENT SUDELL ATTORNEY FOR DEFENDANTS APPELLEES LA E H MITCHELL AND STEVEN M BEFORE f p r CQ t CARTER C J 6 V CG PETIIGREW AND WELCH JJ CO FURR LLc PETTIGREW J This appeal challenges September 15 2006 E H of defendant In Mitchell and Pontchartrain Materials subleases Co to L by an Murphy and that follow we court ruled in favor against plaintiff Phoenix Associates Land LLc Corp Pontchartrain and Michael provisions of sand and a Inc Murphy court ruled that E H gravel lease that had been assigned Trucking s From the Mitchell Ellinger C Ellinger executing these subleases as well Extension of Lease that Phoenix had entered into with E H subject leases court on declaring that the operating agreements between Phoenix Trucking Service s Accordingly the trial of the L Lc The trial court further declared that in Phoenix had breached the to it partial summary judgment rendered by the trial granting partial summary judgment the trial Syndicate Inc C Phoenix were a L Lc Co as the Addendum Mitchell was L Lc Co entitled to dissolution judgment Phoenix has appealed and for the affirm the trial court s reasons judgment of September 15 2006 FACTS AND PROCEDURAL HISTORY The record reveals that Elbert H M Furr and Brian Furr and Michael Furr owned grandfather of defendants Steven approximately 820 acres of land with sand gravel deposits situated along the Pearl River in St Tammany Parish Mitchell s death his brothers formed E H its Mitchell the grandsons became the Mitchell Co L Lc owners C Mitchell president Mitchell thereafter entered into 1996 a in Murphy s The Furr question and Steven Furr lease with regarding the mining of the sand and gravel lease contained of the land in Upon Elbert became Furr Trucking on August 8 portion of the property on a l Said pertinent part the following paragraphs 6 It is agreed that during the and excavation described removal property term of this lease there will be of sand other than and those no mining hereinbefore from the gravel under the permitted terms and provisions of this lease 1 Pursuant to and gravel a separate act of assignment also dated lease from Mitchell to Murphy Construction August 8 Company 2 1996 Inc Murphy s Trucking assigned its sand 10 This lease may not be sub let written permission of Lessor On in whole or in part without the May 14 1997 and August 28 1997 Mitchell and Furr gave written consent to Murphy s Trucking and Murphy Construction Company Inc CMurphy Construction assign or sub lease to Phoenix upon such terms and conditions Murphy Construction shall deem fit and proper understanding that the terms of the intact and that any sub lease or the terms and conditions of the Murphy Construction dated extension of the original lease shall not be granted with the full was changed and shall remain assignment of this said lease shall be made subject original lease dated August 8 1996 entire sand and 1998 gravel operation through Phoenix an act of to all purchased assignment Mitchell and Phoenix entered into addendum to and an original sand and gravel lease between Mitchell and Murphy August 8 1996 which in turn This lease assigned the lease was subsequently assigned to Phoenix on addendum and extension of lease one authority Murphy s Trucking and as August 29 1997 On June 23 dated s Said to August 29 contained several to 1997 s Trucking Murphy Construction The June 23 key provisions First 1998 paragraph provided 1 All the provisions of the original sand and gravel lease between EH MITCHELL COMPANY L L c and L MURPHY S TRUCKING SERVICE INC and assigned to PHOENIX ASSOCIATES LAND SYNDICATE shall remain in full force and effect except as modified herein The addendum and extension of lease also of the primary provided for a change of the beginning term and extensions thereof and other conditions to read as follows 4 Lessor grants unto Lessee from the date of execution hereof and in lieu and substitution of the chronological terms contained in the original lease a renewal of the sand and gravel lease beginning as of this date an initial term of five 5 years Lessee shall have the option to renew the sand and gravel lease after said initial five 5 years period for additional year terms but in no event shall the Sand and Gravel Lease be extended in excess of twenty five 25 years from this date ie there shall be no more than four 4 extensions of the initial five 5 year term five 5 3 The addendum and extension of lease also dealt with to be paid as potential changes of royalties follows 5 The provisions concerning royalties in the sand and gravel lease are as follows The royalties paid for waste concrete sand hereby concrete sand mason sand washed gravel road gravel pea gravel and waste pea gravel shall remain the same The issue of royalties shall be addressed every five 5 years and shall be increased in proportion to the market price of the materials should the price thereof increase It is the intent of the parties that E H MITCHELL COMPANY L L c shall receive the same percentage in royalties for the aforementioned materials should the market price increase Emphasis supplied modified Phoenix later on ran November 18 1999 dismissed the and Mitchell into financial difficulties and filed for The bankruptcy bankruptcy on January 22 2001 same on the expiration of the primary term notifying Mitchell of Phoenix s desire as to the on The royalties owed pursuant and Extension of Lease executed operations not limited to the alleged lack the leased agreement with Mitchell on June 23 premises without as a on June 23 2003 on the premises to exercise its Phoenix sent option to parties however could to a renew a letter the lease not come to an paragraph five 5 of the Addendum to 1998 to the amount of negotiate the price to be paid for parties permission property for another five years agreement developed between Phoenix and the allowance of third without Mitchell s written Prior to the to Mitchell Problems royalties underpayment of royalties the alleged taking of overburdened soil without remuneration to Mitchell to mine rejected Phoenix s plan of organization and court regarding Phoenix s operations including but of payment of bankruptcy reorganization Phoenix nevertheless continued its written extension of said royalties owed renewal lease lease Due to its Phoenix sued Mitchell or an inability to on June 17 2003 Subsequent to this Phoenix entered into certain Operating Agreements with other companies Agreements the second was to mine dated part of Mitchells property The first of these two Operating August 15 2004 and involved Phoenix and Pontchartrain while agreement dated June 15 2005 4 was entered into between Phoenix and Ellinger Mitchell never consented to these Operating Agreements either orally or in writing Phoenix filed the instant suit defendants therein Phoenix June 17 on sought to recover breach of their obligations pursuant to the lease with Phoenix s operations filed an answer the naming Mitchell and Mitchell removed sought as well their alleged tortious interference property owned by Mitchell On July 3 2003 Mitchell a a reconventional demand cancellation of its lease with Phoenix by Phoenix from the premises and an accounting of damages for Mitchells lost opportunities to lease the property to other prudent operators On June 25 responded by filing peremptory exceptions that raised objections of and Furr as damages for Mitchell and Furr s alleged setting forth affirmative defenses together with against Phoenix materials on 2003 2003 no cause Furr of action prescription with respect to Phoenix s claims against him On September 25 2003 Phoenix filed wherein Phoenix clarified its factual a supplemental and amending petition allegations against Furr Mitchell thereafter filed supplemental and amended reconventional demand against Phoenix wherein Phoenix clarified its factual allegations with respect to on a August 10 2005 damages and sought a declaratory judgment that the operating agreements between Phoenix and various independent operators void Mitchell also Phoenix unauthorized and were prayed for Mitchell further a prohibited subleases that were null and judicial dissolution and cancellation of its lease with prayed for a preliminary injunction prohibiting Phoenix from removing products from the soil during the pendency of this litigation Mitchell filed Phoenix signed on a seeking a second supplemental and amending reconventional demand against October 27 2005 judgment injunction a On on Following December 15 a hearing 2005 on November 10 2005 the trial court denying Mitchells request for a preliminary July 26 2006 Mitchell moved for a partial summary declaratory judgment declaration that the and Phoenix and Ellinger operating agreements between Phoenix and Pontchartrain were subleases and constituted between Mitchell and Phoenix 5 a breach of the mineral lease The trial court rendered judgment on September 15 2006 declaring that Phoenix operating agreements with Pontchartrain and amounted to material breach a by Phoenix of its lease with Mitchell further dissolved and cancelled the sand and Thereafter court s on October 10 not be Phoenix filed for suspensive appeal from the trial a ex proprio motu issued a rule to show cause why the appeal should dismissed because the trial court s judgment of September 15 2006 appeared designated to show cause by the trial 1915 B 16 17 dated gravel lease between Mitchell and Phoenix partial summary judgment which pursuant to La Code Civ P been The trial court appeal This court a 2006 which judgment of September 15 2006 and it is that judgment that forms the basis of the instant be Ellinger constituted subleases s as a final court by briefs why this appeal should court to designate the judgment See Motorola La judgment by the trial 1 Cir App Inc v Associated 10 22 03 parties 1915 B had not given thirty days were not be dismissed based upon the failure final pursuant to La as Code Civ P art Indemnity Corporation 2002 1351 pp 867 SO 2d 723 April 19 2007 the rule to show The art to cause was 732 733 By recalled and this an order of this court appeal was maintained ISSUES PRESENTED FOR REVIEW In connection with its appeal issues for review and consideration 1 in this matter Phoenix has by this presented the following court Whether the district court erred concluding that the Operating where the Operating Agreements Agreements prohibited were in material respects by Mitchell s own inconsistent internally admission and therefore ambiguous and where the evidence before the court was highly disputed 2 in subleases were Whether the district court improperly resolved material factual issues in dispute summary judgment in terminating a sand and gravel lease where the lease did not provide for automatic termination in the event of a breach Louisiana law requires consideration of numerous fact intensive factors on before a lease issues was can be cancelled and the proper resolution of those fact hotly contested APPEALABILITY OF JUDGMENTS There yet remains one last hurdle that hinders this matter and that is whether the trial court 6 us in proceeding with our review of properly designated the partial judgment as final a judgment pursuant to La Code Ov P however is not determinative of this court s 2000 0206 2 p La App 1 Or 2 16 01 court in our review of reasons either oral or art 1915 808 So 2d 478 no just reason provide explicit for 1122 As an 480 Rosenblum appellate 2004 1664 pp the court should no just reason designation was 3 2 05 court we cannot determine the merits of such RJ on our de Messinger Inc novo review of the designation is proper and that the jurisdiction of this written or required RJ 894 So 2d 1113 appeals unless our art 2083 set forth in conclude that the we court has been delay proper designation utilizing the factors 2004 1664 at 14 894 SO 2d at 1122 1123 for court is jurisdiction is properly invoked by valid final judgment See La Code Ov P Based give explicit either oral reasons 13 14 La Davis v In order to assist this delay existed the appellate to conduct a de novo determination of whether designation s rei White ex written for its determination that there is for its determination that v Van jurisdiction designated final judgments the trial In those cases where a trial court did not Messinger Inc The trial court properly invoked SUMMARY JUDGMENT A motion for summary trial when there is op Inc no judgment is procedural device used a genuine issue of material fact Johnson 2001 2956 p 3 La App 1 Cir 12 30 02 on file and v answers to together with affidavits if any show that there is material fact and that art 966 B Evan Hall 836 So 2d 484 judgment is properly granted if the pleadings depositions admissions v mover is entitled to judgment as a fina Oil and Chemical Co 2002 0338 486 no La App Summary genuine issue of La Code Ov P to secure the just speedy La Code Civ P art 966 A pp 4 5 Sugar Co interrogatories and matter of law Summary judgment is favored and is designed inexpensive determination of every action to avoid a full scale 2 1 Or 2 14 03 Thomas 845 So 2d 498 501 502 On a If however motion for summary the before the court does not mover on judgment the initial burden of proof is will not bear the burden of the motion for summary proof judgment the the mover at trial on the matter that is mover s burden require that all essential elements of the adverse party 7 on s on claim the motion action or defense be negated absence of factual claim action or Instead the support for defense must mover one or Thereafter the adverse If the adverse party fails and the is entitled to summary v Summary judgments same questions judgment is appropriate whether the Service denied mover Corp 7 5 94 reviewed is entitled to p Our 639 So 2d 730 La court in App genuine issue of material fact P art 966 C 2 Robles 844 So 2d 339 341 An novo appellate court thus determining whether summary genuine issue of material fact and as a matter 1 Cir at trial 11 of law 19 03 Ernest v Petroleum 868 So 2d 96 writ 97 866 So 2d 830 lady of the lake Hospital 750 751 the Louisiana parameters for determining whether A appeal de on judgment 3 no 1 Cir 3 28 03 whether there is any La 2 20 04 v there is does the trial as 2002 2482 2003 3439 In Smith are party must produce factual evidence judgment La Code Civ App an party s satisfy his evidentiary burden of proof to meet this burden ExxonMobile 2002 0854 p 4 La asks the elements essential to the adverse more sufficient to establish that he will be able to mover point out to the court that there is genuine issue is an a issue is Inc 93 2512 Supreme Court genuine triable issue or a More pp 26 27 set forth the La following fact is material precisely a n issue is If on the state of the genuine if reasonable persons could disagree evidence reasonable persons could reach only one conclusion there is no need for trial that issue Summary judgment is the means for In determining whether an issue disposing of such meretricious disputes is courts cannot consider the merits make credibility genuine determinations evaluate testimony or weigh evidence Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact a A fact is essential to on material plaintiff s F acts recovery when cause are its existence of action or nonexistence may be applicable theory of they potentially insure or preclude material if under the recovery affect a the legal dispute litigant s ultimate success or determine the outcome of Simply put a material fact is one that would matter on the trial on the merits Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits Because it is the Citations omitted applicable substantive law that determines materiality whether particular fact in dispute is material applicable to this case foreman v can be seen only in light of the substantive law Danos and Curole Marine Contractors 8 a Inc 97 2038 7 p 12 18 98 La 1 Cir App 734 SO 2d 637 Thus 9 25 98 we now 722 SO 2d turn to a 1 4 writ denied discussion of the 98 2703 La applicable law DISCUSSION In support of its motion introduced its memorandum to and which for partial summary declaratory judgment Mitchell together with the affidavit of its president Furr that referred by reference included the following exhibits MSJ 1 being a copy of the Act of Sand and Gravel Lease dated 1996 between Mitchell and Murphy MSJ 2 A and MSJ 2 B respectively being copies dated May 14 August 8 1997 and August 28 1997 or assignment of to assign Mitchells Murphy of the consent to sublease lease wherein Mitchell granted permission to sand and gravel lease dated August 8 1996 to Phoenix MSJ 3 being which Murphy copy of the assignment of lease dated August 29 assigned the sand and gravel lease to Phoenix a 1997 by MSJ 4 being the Addendum and Extension of Lease dated June 23 1998 Mitchell granted Phoenix an extension of the sand and gravel lease which was assigned to Phoenix in which MSJ 5 being MSJ 6 being copy of the Operating between Phoenix and Pontchartrain a copy of the between Phoenix and Ellinger MSJ 7 2005 a Agreement dated August 16 2004 Operating Agreement dated June 15 2005 copy of the Operating Agreement dated December 22 between Ellinger and Dirt Connection and being a MSJ 8 being a copy of the Operating Agreement dated February 10 2006 entered between Ellinger Ron Omelian and Lake Shore Materials In opposition to the motion for partial summary declaratory judgment Phoenix introduced their memorandum and the Exbt A following supporting exhibits being the affidavit of Paul Alonzo President of Phoenix Exbt B being selected portions of the deposition of Ellinger dated April 19 2006 Exbt C by Fletcher Cockran to John DesJardine Connection Inc dated January 20 2006 and being Exbt D Marty being a letter a letter dated Jr The Dirt February 2 2006 from Fletcher Cockran to A Burnstein In rebuttal Mitchell offered a supplemental affidavit of Furr dated September 14 2006 9 It is undisputed fact in this litigation that Mitchell did not orally an consent to the various and Pontchartrain 22 2005 between Operating Agreements dated June 15 2005 between dated between Phoenix and Ellinger and The Dirt Connection dispute concerning There is subletting the no material issue of fact in May by Murphy 14 Ellinger dated December and dated February 10 2006 Therefore there is no material dispute in that Phoenix is prohibited from property without the written permission of Mitchell pursuant to paragraphs Murphy the Consent dated writing same 6 and 10 of the Act of Sand and Gravel Lease dated and in August 16 2004 between Phoenix Ellinger Ron Omelian and Lakeshore Materials issue of fact in or 1997 to Sublease or August 8 1996 between Mitchell Assign Lease by Mitchell to Murphy by acts August 28 1997 the Assignment of Lease dated August 29 1997 to Phoenix and the Addendum to and Extension of Lease dated June 23 1998 between Mitchell and Phoenix Pursuant to La Code Civ P art 1877 other orders judgments and decrees seeking declaratory judgment does judgment Delahoussaye Colleges 2004 0515 v Associated v Accordingly the character of this action as as one not affect the standard of review of the summary Board of 4 p La App declaratory judgments may be reviewed Supervisors of Community 1 Cir 3 24 05 906 SO 2d 646 649 Indemnity Corporation 2002 0716 p 5 La App Technical Motorola Inc 1 Cir 4 30 03 867 So 2d 715 717 As between Mitchell and Phoenix the premises and set forth in prohibition against Phoenix subleasing the paragraphs 6 and 10 of the August 8 1997 lease between Mitchell Murphy the assignment of that lease dated August 29 1997 by Murphy s Trucking to Phoenix and the addendum to and extension of lease dated June 23 Mitchell and Phoenix makes The 1998 between paragraphs 6 and 10 the law between Mitchell and Phoenix obligation imposed upon Phoenix by paragraphs 6 and 10 of the Mitchell mineral 10 lease is unequivocal and express 2 T he mineral lease constitutes the law between the parties and regulates their respective obligations v Castex Energy Inc 2004 0968 La Kelly Oil Company 98 1193 p 8 Amoco Production Co The executed 2004 key issue 603 So 2d 166 in this in fact subleases and 1 19 05 6 29 99 171 on quoting Caskey 737 So 2d 1257 1262 see Frey v v La 1992 June 15 2005 direct breach a 893 So 2d 789 turns on whether appeal by Phoenix with Ellinger are La Terrebonne Parish School Board the Operating Agreements and Pontchartrain on August 15 by Phoenix of its Mitchell lease and the addendum to and extension of said lease dated June 23 1998 The covenant in the lease because it is property are regarded for his interest to determine who shall be as See Montecon against subletting is for the benefit of the landlord v Faures 3 La Ann 43 1848 If the a tenant operating agreements truly subleases then Phoenix by executing these agreements with Pontchartrain and Ellinger without Mitchells the Mitchell to has caused consent a subletting without Murphy lease assignment of said lease by Murphy Hall 251 SO 2d 444 449 243 263 So 2d 22 La App 1 Cir 1971 1972 paragraph 10 of the Mitchell This would to Murphy lease partially reversed cause to Phoenix 5 R Violations of mineral leases may be either passive La on See other and the Major v grounds 262 Phoenix to be in active breach of The division of breaches into active and passive violations is preserved under La Stacy 25 578 p 5 La App 2 Cir 2 23 94 breach of consent addendum to and extension of the lease between Mitchell and Phoenix La of his 31 135 of the Louisiana Mineral Code or active is established 632 SO 2d 872 875 citing Hunt v comments to 5 R 31 135 of the Louisiana Mineral Code Phoenix takes the to transfer any of its position that it was never its intention to enter into rights on the lease to Pontchartrain and Ellinger Ellinger according to Phoenix were independent 2 contractors engaged a sublease or Pontchartrain and to perform certain A lease providing for the exploring for mining or removal from the land the soil itself or gravel and other 5 R substances is a mineral lease and is covered by the provisions of the Louisiana Mineral Code See La 31 4 11 specified services in the trucking services the recital that In way Phoenix contracted out other services same support of this position Phoenix referred to a such as particular paragraph in portions of the Operating Agreements with both Pontchartrain and Ellinger provide Whereas Agreement Phoenix and Pontchartrain agree that this Operating is not and shall not be constructed as a lease or a sublease and that Phoenix does not surrender transfer or in any other matter assign to Pontchartrain its rights or obligations as Lessee under the aforesaid Sand and Gravel Lease Consent to Sub Lease Addendum to and Extension of Lease Phoenix argues that the their agreements expression of intent by Pontchartrain and Ellinger assignments as characterizing these Assignment of Lease and or subleases or or not to consider legally binds the court and Mitchell in contracts or at the minimum creates a material issue of fact to prevent summary judgment Whether the are really subleases is Phoenix s a question of law contracts in Trucking Co Stassi 107 Inc S Ct v 432 Louisiana Questions of law argument characterization of the 948 between Phoenix Pontchartrain and Operating Agreements 93 issue is 918 1986 a La 1986 contract must be determined Major 251 So 2d at 448 parties to interpretation the best evidence of the The intent of the 918 The trial court is entitled to being hindered by Gas 134 Corp La v 1991 agreements erroneous State apply the law The effects the parties intent is a contract Howard on Mitchells s U Ellinger and its effect on the not conclusive should govern its to the Trucking Co App 2 Cir to 485 So 2d at legal documents before assumptions of law by the parties La 479 parties intent is what the parties agreed Citations omitted 574 SO 2d 455 461 Howard denied cert by its substance by so La Civ Code art 2045 nature the operating agreements because the parties what the law not the parties says it is do admitted or The intent of Phoenix Pontchartrain cannot determine the character of the legal character of confessed preeminently of that 485 So 2d 915 L Ed 2d 382 Supreme Court has repudiated be cannot Ellinger it without Cities Service Oil writs denied 578 So 2d 132 rights control the character of the operating Although the parties entered into 12 a written contract in which they were identified independent as between the parties it is not binding rights of third persons contractual 12 La contractors relationship are or controlled between the App 1 Cir 12 31 02 and this designation controlling on the by the substance have may validity some rights of third persons rather than the title The of the Hughes v Goodreau 2001 2107 pp parties 836 So 2d 649 659 writ denied 2003 0232 11 La 4 21 03 841 So 2d 793 Under La R S 31 4 the all forms of minerals for mine or including or remove other substances the 5 R 31 2 oil and gas Said from land the soil itself are renounce or the renunciation or the La supplementary are to the modify what provisions of the Mineral Code unless they are modification does not affect the subject La 5 R 31 5 lessee is La are R S codal rights to explore water and to those of the is established in their favor expressly or by impliedly prohibited and rights of others and is not contrary to 5 R 31 3 a solid state insusceptible of ownership apart from the land until reduced Pursuant to La granted the right 31 2 applicable to matter of mineral law Ownership of land includes all minerals occurring naturally in minerals to are gravel shells subterranean applicable specifically Individuals may public good provisions also apply Provisions of the Mineral Code Louisiana Civil Code and La provisions of the Louisiana Mineral Code to mineral leases 31 114 5 R a mineral lease is a contract explore for and produce minerals and are construed as provisions applicable to ordinary leases leases are to Solid possession by which the in accordance with generally and whenever pertinent applied to mineral leases See Frey 603 So 2d at 171 The codal requirements for sublease are original lessee and the same as sublease is a which party gives to another the enjoyment of the thing for one lease between the a 13 a third party for the lease since A lease is a contract a fixed price La a by Civ Code arts 2669 object an a 2674 3 A lease which may be oral and The requires 5 price and consent La Civ Code arts 2670 2671 certain and determinate Major 251 SO 2d at 447 4 La Civil Code art 2683 Operating Agreements between Phoenix Pontchartrain Ellinger contain all three of these elements Phoenix contends the An agreements agreements with Pontchartrain and Ellinger were operating operating agreement implies Pontchartain and Ellinger were operating the mine for Phoenix and Phoenix contrary both to the very agreements minerals still the was That is produced agreements between Phoenix Pontchartrain and Ellinger Pontchartrain and Ellinger became This fact is made clear in produced of the minerals owner of the owners gravel Under soil and paragraph 16 of both the Pontchartrain and Ellinger agreements with Phoenix which obligates Pontchartrain and Ellinger to sell their mined minerals if any available when Phoenix requests In paragraph 15 of the Mitchell lease singular right of way required In to reach the leased the and to Pontchartrain and subject property including the right In the bring original lease by Mitchell outside materials onto Mitchell 23 of Pontchartrain s s Mitchell s Former La 2668 4 by Civ Civ Code arts La Civ and 2678 Pontchartrain to use all Phoenix did not property for reprocessing and were paragraphs 8 given the right Further to In 16 1 eff Jan 1 existing roads acquire the right in are now to paragraphs 1 8 16 and 23 of Ellinger s onto agreements with its use reproduced of all in La Civ existing Code art 2005 2683 in condensed form is now reproduced in La Civ Code art 2681 by Act 2005 Code arts 2669 and 2671 in condensed form is respectively by and bring outside materials Phoenix 2669 and 2674 in condensed form see Code art 2004 No 821 eff Jan 1 5Former right of way may be Ellinger granted to Pontchartrain and Ellinger the Act 2004 No 821 Former La such as a to build additional roads property for reprocessing Pontchartrain and 3 granted Phoenix Ellinger the right to Phoenix agreement agreement Pontchartrain and Ellinger the premises insofar Mitchell paragraph 2 of the agreements between Phoenix Ellinger Phoenix granted on to Phoenix Act 2004 No 821 see 1 eff Jan 14 1 now 2005 reproduced in La Civ Code arts 2668 electrical utilities the on subject property a grant of authority that Phoenix did not possess Phoenix dismembered Mitchells ownership by conferring upon Pontchartrain and Ellinger specified rights of use on Phoenix Pontchartrain and Ellinger provide that Pontchartrain and Ellinger shall have the sole and exclusive dredging plan of the use These the designated area the property including personal servitude is Code art 534 Civil Code A Right of right of estate less than full hand is a contract use access is charge one it is or a on a dismemberment of the authority to Phoenix create real Mitchells on a La use uses production of minerals and mineral rights that may be created by some They further gained a La Civ person a specified A mineral lease to explore for mine use on of an the other or remove characteristics in the nature of 5 R 31 4 La 5 R 31 16 The a operating Phoenix conferred to Pontchartrain of Mitchells land less than full a RS enjoyment This whether to its mineral lease with Mitchell on to reduce them to grant mineral leases of specified land owner on property ownership of Mitchells land land for nor for the mine various materials favorable person Mitchell A land owner may convey reserve or lease his neither the landowner were Mitchells land for the benefit of Pontchartrain and pursuant La property types of personal servitudes recognized by the rights or personal servitudes royalty and the mineral lease or Ellinger s mining and thing for the benefit of right with right of and s of Mitchells dredge and By executing the Operating Agreements personal servitudes to on on a of three real Ellinger the right to specified persons use by which the lessee is granted the right agreements imposed charges created Pontchartrain enjoyment La Civil Code art 639 limited personal servitude Ellinger a to operating agreements between to the soils and minerals servitude confers use minerals from the land and Ellinger right to bring other scales and equipment A as rights to sole and exclusive purpose of allowing Pontchartrain and and from the The property landowner 31 16 or are possessed no property in favor of third to explore and develop his possession La 5 R 31 15 Basic the mineral servitude the mineral rights of the executive or s The executive mineral 15 right by lease right La right is the exclusive right R S 31 105 to create Phoenix is mineral leases or servitudes The effects of dismemberment breach See 3 Cir 5 29 96 After we did Quinn Properties Inc a support the trial court s Sabine River Realty Inc v finding of a material 95 1714 La App 676 So 2d 639 thorough de conclude that the assignment of not commit error in Pontchartrain and novo review of the record and all exhibits included herewith error of appellant is without merit and the trial court declaring that the operating agreements between Phoenix in truth and in fact subleases Ellinger to be court did not commit error in We further find the trial declaring that the execution by Phoenix of these subleases with Pontchartrain and Ellinger constituted assigned from Murphy to Phoenix and the Addendum and Extension of Lease between Mitchell and Phoenix and further Lease assigned from Murphy a granting a breach of the Act of Sand and Gravel Lease dissolution of that Act of Sand and Gravel to Phoenix and the Addendum to and Extension of Lease between Mitchell and Phoenix For the foregoing reasons rendered September 15 2006 we do hereby affirm the judgment of the trial All court costs of this Phoenix AffIRMED 16 court appeal shall be assessed against
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