author: CHARLES R. JONES, Judge.

text:
    FREEPORT-McMORAN ENERGY, LLC v. CEDYCO CORPORATION.
    No. 2010-CA-0367.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 2011.
    Rehearing Denied Feb. 2, 2011.

      Carl D. Rosenblum, Stanley A. Millan, Alida C. Hainkel, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for PlaintiffAppellee.

      Vincent J. Booth, Booth & Booth, a PLC, New Orleans, LA, Martin L. Morgan, Covington, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

|/The defendant/appellant, Cedyco Corporation (“Cedyco”) appeals an adverse judgment by the district court awarding the appellees, Freeport-McMoran Energy L.L.C. (hereinafter referred to as “Free-port”), $270,809.49, plus legal interest. We amend in part, reverse in part, and affirm as amended.

This case concerns two oil and gas leases on property located in Plaquemines Parish. In September of 1976, the owner of the immovable property, Freeport Minerals Company, and is also the alleged predecessor in interest to the appellee Freeport, entered into an agreement with Hilliard Oil and Gas, Inc., to explore and develop properties in Louisiana. Thereafter, on July 23, 1977, Freeport Minerals entered into an oil and gas lease for the well subsequently referred to as the “Plaquemines Parish Commission Council No. 1 Well.”

On January 25, 1978, Freeport Minerals Company and Hilliard Oil and Gas entered into another lease of the property where the “Freeport Sulphur Company No. 1 Well” was drilled, also located in Plaque-mines Parish. The operative |2language of the two leases at issue is identical, the only exception being the site of the two wells.

The subject oil and gas leases identically provide at Paragraph 12 that, when production of oil and gas ceases in paying quantities,

Lessee shall, at its sole cost and expense and within no more than ninety (90) days after the date whereon Lessee ceases actual drilling or reworking operations on said well, plug and abandon said well and restore the surface of the land in and around the location thereof to as nearly the same condition as it was in prior to the commencement of operations for drilling thereof.

As the lessor and alleged successor in interest, Freeport brought this suit to enforce the obligation of Cedyco, as successor of Hilliard Oil. Freeport alleges that Cedyco, as the Gas Company under both leases, had a responsibility to properly plug and abandon the two wells on its land, and to have its property at the well sites properly restored as required by Paragraph 12 of the two leases.

Freeport filed a petition for declaratory judgment, specific performance and damages on June 25, 2008. Therein, Freeport averred that it is the successor lessor of Freeport Minerals Company under both of the subject leases. The petition also set forth that that there had been no oil and gas production from either well “for many years” and averred that Cedyco, as lessee, was required by the terms of the leases to plug and abandon the wells and otherwise restore the well sites upon cessation of production.

In the petition, Freeport also averred that it had made formal demands upon Cedyco to plug and abandon the wells. Freeport further alleged that Cedyco, | ^despite having received demand to plug and abandon the wells, had refused to do so. The alleged refusal of Cedyco to comply with the terms of the lease prompted Freeport to seek damages pursuant to La. C.C. art. 2315. Alternatively, Freeport sought to require Cedyco to plug and abandon the well by specific performance. In addition, the petition of Freeport sought damages for breach of contract, declaratory relief, a demand for attorney’s fees pursuant to La. R.S. 31:207 and La. R.S. 31:209, as well as a claim for statutory penalties.

On August 1, 2008, Cedyco filed a pro se answer which raised an objection to venue in Orleans Parish. In paragraph III of its answer Cedyco stated that it denied each and every allegation that called for payment by Cedyco to Freeport.

On August 15, 2008, fourteen (14) days after Cedyco filed its answer, Freeport filed its motion for partial summary judgment.

On August 27, 2008, Freeport filed a motion to compel Cedyco to answer discovery. On October 8, 2008, the district court issued an order directing Cedyco to answer discovery and other discovery requests of Freeport by October 13, 2008. The district court specifically warned that by its failure to comply with the aforementioned order, Cedyco risked waiving its right to object to interrogatories and requests for production of Freeport. However, by October 14, 2008, Cedyco had failed to comply with the order of the district court. On October 20, 2008, the district court issued an order designating that the right of Cedyco to object to the interrogatories and requests for production of Freeport was waived.

[4A hearing on the motion for partial summary judgment was originally set for September 18, 2008, but was later reset for October 24, 2008. The motion for partial summary judgment of Freeport was unopposed. On October 24, 2008, the district court granted the motion for partial summary judgment of Freeport, and ordered that the two subject leases between the parties be terminated. The judgment of the district court further required Cedyco to plug and abandon both wells, restore the surface of the well site, and provided Freeport with a recordable act evidencing the termination of the leases.

On October 27, 2008, attorney Martin Morgan filed a motion to enroll on behalf of Cedyco. Immediately thereafter, Mr. Morgan filed a memorandum in support of a declinatory exception of improper venue, which Cedyco had originally raised in its answer. The exception alleged that venue was improper in Orleans Parish due to the fact that the petition of Freeport concerned rights in immovable property, and therefore venue would only be proper in Plaquemines Parish, where the immovable property was located.

On November 3, 2008, the district court rendered its judgment denying the exception of improper venue of Cedyco. Nearly three weeks later, on November 21, 2008, Cedyco gave its notice of intent to seek supervisory review concerning the denial of its exception of improper venue. Trial was subsequently scheduled for June 29, 2009.

| sOn February 3, 2009, Freeport filed a motion for sanctions arising out of the failure of Cedyco to comply with the order of the district court compelling discovery. On March 16, 2009, the district court entered a judgment granting the motion for sanctions and ordered Cedyco to pay $1,500.00, and to answer the outstanding discovery.

Subsequently, on March 19, 2009, this Court denied the writ application of Cedy-co which had sought review of the district court judgment denying the exception of improper venue.

On May 26, 2009, Freeport filed a motion to strike the answer to discovery requests of Cedyco and requested entry of judgment by default. Freeport maintained that Cedyco had failed to comply with the prior orders rendered by the district court regarding discovery.

Three days later, on May 29, 2009, Ce-dyco filed an exception of no right of action. Therein, it maintained that Freeport had not sufficiently established that it was in fact the successor in interest to Free-port Minerals Company. Thus, Cedyco maintained that Freeport had no right of action to assert claims pursuant to the leases in question.

After a hearing on June 18, 2009 on the motion and exceptions, the district court denied Freeport’s motion to strike the answer of Cedyco and accompanying request for entry of judgment by default. In addition, the district court also denied the exception of no right of action of Cedyco. However, the district court ordered ^alternative relief and barred Cedyco from presenting any witnesses or evidence of its own at the June 29th trial. The judgment of the district court specifically limited the ability of Cedyco to cross examination the witnesses for Freeport.

Trial commenced as scheduled on June 29, 2009. Freeport presented two witnesses: Mr. Clarence Mascarenhas and Ms. Nancy Parmelee.

Mr. Mascarenhas testified that he was an engineer formerly employed by one of the numerous Freeport entities, but he was currently employed by Crescent Technology, Inc. Over the objections of counsel for Cedyco, Mr. Mascarenhas was permitted to offer testimony about various “proposals” which he had solicited regarding the projected cost of plugging and abandoning the subject wells and restoring the surface sites.

The testimony of Mr. Mascarenhas revealed that none of the plugging and remediation work had been performed. Rather, his testimony revealed that he had solicited “proposals” for the work from various contractors. In addition to introducing the proposals of the various contractors into evidence, Freeport also introduced letters which detailed the amounts of the “proposals” for the work. These proposals were introduced into evidence as Freeport’s exhibits numbered 6, 7, and 8, respectively.

Freeport’s second witness was Ms. Par-melee, senior vice president and chief financial officer of Freeport McMoran Energy. She testified that she was actually employed by “Freeport McMoran Services,” and stated that she was the custodian|7of business records for Freeport. She identified the various demand letters that Freeport had sent to Cedyco requesting that the wells be plugged and abandoned. Through the testimony of Ms. Parmelee, Freeport also sought to introduce documentation concerning the amounts of oil and gas production from the two wells. When counsel for Cedyco objected to the introduction of various hearsay documents by Freeport, counsel for Freeport proffered these exhibits as Freeport’s exhibits 21 and 22, respectively. Ms. Parmelee then testified that the leases provided for a 20% royalty on oil production.

Following the testimony of Ms. Parme-lee, Freeport rested its case. As a result of the prior district court ruling in connection with the motion to strike of Freeport, Ce-dyco was not permitted to call any witnesses or present any evidence of its own.

However, the testimony of Ms. Parme-lee, as now argued by Cedyco, had elicited a claim for the recovery of unpaid mineral royalties allegedly owed by Cedyco. This was despite the fact that Freeport had not set forth a prior demand for mineral royalties from Cedyco in its petition.

Cedyco suspected that the testimony of Ms. Parmelee was directed towards a claim for mineral royalties, consequently counsel for Cedyco asked on the record whether Freeport was asserting a claim for royalties in this litigation. In response to this request for clarification counsel for Freeport, Mr. Rosenblum, replied, “[a]bso-lutely.”

IsCedyco argued that Freeport had previously taken the position that there was no claim for mineral royalties being asserted in this litigation, and that the object of relief for Freeport was merely to cancel the leases. Cedyco noted that if the suit sought only relief for a breach of a contract of lease, then Freeport could argue that venue in this case was governed by La. C.C.P. art. 76.1, rather than art. 80(A)(1). In addition Cedyco argued that by convincing the district court that the case did not involve a dispute regarding mineral rights, Freeport could argue that venue was governed by the broader provisions of La. C.C.P. art. 80(A)(8).

Once again Cedyco re-urged an exception of no right of action. Therein, it still maintained that Freeport had not sufficiently established that it was in fact the successor in interest to Freeport Minerals Company. Thus, Cedyco maintained that Freeport had no right of action to assert claims pursuant to the leases in question.

Particularly, Cedyco maintained that once the case came to trial, Freeport, decided that it did in fact have a claim for mineral royalties. Further, Cedyco urged that the statement during trial by counsel for Freeport indicating that it was “[ajbso-lutely” asserting a claim for mineral royalties, constituted a material misrepresentation.

18In addition to filing its second exception of no right of action, Cedyco filed an exception of prescription. Therein, Cedy-co argued that the claim for mineral royalties by Freeport was untimely because there had not been any oil and gas production from either well in the three (3) years prior to the institution of the litigation. Thus, any claim which Freeport might have had for unpaid royalties would have prescribed.

The exception of no right of action by Cedyco was set for hearing on July 24, 2009. On that date, counsel for Freeport sought to reopen the evidence in order to establish the critical facts which demonstrated how ownership of the two pieces of property had transferred from Freeport Minerals Company to Freeport, thereby establishing that Freeport was indeed the successor/lessor on the two oil and gas leases and that it had a right of action to assert claims in this proceeding. Counsel for Freeport argued that he was permitted to introduce evidence on the exception of no right of action.

Subsequently, counsel for Cedyco withdrew the exception of no right of action, but maintained that Freeport had failed to prove a necessary element of its case. Nevertheless, despite the withdrawal of the exception of no right of action by Ce-dyco, the district court decided to reopen the evidence in order to permit counsel for Freeport another chance to prove its case. At the July 24, 2009 hearing, |Klcounsel for Freeport gave the district court notice that Freeport had decided to “waive” its “right to unpaid royalties.”

On August 20, 2009, following a trial on the merits, and subsequent to Freeport being granted a second opportunity to present evidence in support of its claims at the July 24, 2009 hearing, the district court rendered a judgment in favor of Freeport. The court awarded damages as follows:

• One hundred and five thousand dollars ($105,000.00) to plug and abandon the two wells which were the subject of the oil and gas leases;
• Seventy-four thousand three hundred dollars ($74,300.00) for removal and cleaning of tanks and tank fields;
• Ten thousand dollars ($10,000.00) for an environmental assessment;
• Three thousand seven hundred dollars ($3,700.00) to restore land at the well sites to their original condition; and
• Eighty four thousand eight hundred and nine dollars and forty nine cents ($84,809.49) in attorneys fees and costs;

Thus, the total monetary judgment was two hundred and seventy seven thousand, eight hundred and nine dollars and forty nine cents ($277,809.49), plus legal interest from the date of judicial demand.

This timely appeal followed, wherein, Cedyco raises three (3) assignments of error:

1. The district court erred in permitting Freeport to introduce hearsay opinion evidence regarding its alleged damages;
2. The district court erred in failing to enforce paragraph 19 of the lease which provides that no assignment of the lease by the lessor would be valid until 30 days after notice to the lessee; and
|ri3. The district court erred in awarding nearly $85,000 in attorney’s fees to Freeport, given the fact that no depositions were conducted, the parties engaged in minimal discovery, and the trial lasted less than one day.

“We review the trial court’s ruling under the manifest error or clearly wrong standard, in which the trial court will not be reversed in the absence of clear error. The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one.” Bosarge v. DePaul/Tulane Behavioral Health Center, 2009-1345, pp. 6-7 (La.App. 4 Cir. 5/19/10), 39 So.3d 790, 795 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 149.) See also Marino v. Tenet Healthsystem Medical Center, 2009-915 at pp. 3-4, (La.App. 4 Cir. 11/29/09), 26 So.3d 297, 299, writ denied, 2009-2804 (La.3/5/10), 28 So.3d 1012.

In its first assignment of error, Ce-dyco argues that the district court erred in permitting Freeport to introduce hearsay opinion evidence regarding its alleged damages.

The bulk of the award of damages by the district court to Freeport represented the alleged cost of plugging and abandoning the wells and restoring the surface of the well sites. It was undisputed that none of the work had been performed. Rather, the only “evidence” of the cost of this work consisted of “proposals” from third-party contractors which had been solicited by Mr. Mascarenhas. As the “proof’ of damages offered by Freeport was almost entirely hearsay, the evidentia-ry ruling of the district court admitting this evidence was legal error and should be reversed.

|12Although Mr. Mascarenhas was listed as both a fact witness and an expert on its witness list, Freeport did not seek to qualify him as an expert, which would have permitted him to give opinion testimony. Nevertheless, Freeport introduced all of its evidence of damages by having Mr. Mascarenhas rely upon hearsay opinions, given to him by “contractors” in various fields, in his testimony. By introducing evidence of its alleged damages through hearsay letters and out-of-court statements, Freeport prevented Cedyco from cross-examining any of these witnesses to expose or explore their possible bias, or to establish deficiencies in the methodology which led to their proposals.

Mr. Mascarenhas first testified regarding a proposal from Estis Well Service for the cost of plugging and abandoning both wells. Defense counsel objected to this evidence as hearsay. The district court initially stated that the witness could testify as to what he received, but that she was not sure whether the document would come into evidence.

Counsel for Freeport then sought to have Mr. Mascarenhas identify Exhibit 6, the written proposal from Estis Well Service. Counsel for Cedyco continued to raise objections, both to the content of the hearsay letter and to the out-of-court statements made to the witness. Nevertheless, in the end the district court allowed Mr. Mascarenhas to testify to the full extent of the information communicated to him by Estis, and Exhibit 6 of Free-port was admitted into evidence over the objection of Cedyco.

Mr. Mascarenhas was next asked to identify Exhibit 7, the proposal which he received from Kostmayer Construction for surface restoration to clean and remove the tanks. As was the case with the proposal given by Estis, the testimony of the witness, as argued by Cedyco, “made it clear” that Mr. Mascarenhas did not | ]Shave the expertise to come up with the monetary figure to do this work. Cedyco argues that the proposal was simply something that had been “written to” him.

Cedyco argues that the monetary figures contained in the various proposals were numbers that came out of the mouths of the absent witnesses, and that Mr. Mas-carenhas obviously did not have the necessary expertise or knowledge to come up with the numbers on his own, otherwise there would have been no need for the proposals and Mr. Mascarenhas could have simply testified as to what he thought the cost of the work would be. Thus, Cedyco argues that the district erred in admitting Exhibit 7 over its objection.

Exhibit 8, the proposal from Rennies Tractor Service for restoration of the surface sites by leveling the ground and cutting the grass, followed the same pattern as Exhibits 6 and 7. Mr. Mascarenhas was asked whether he had received a proposal from Rennies. Again, the objection of Ce-dyco was overruled, and Exhibit 8 was admitted into evidence.

Our review of the record establishes that the only items of damages introduced by Freeport which were not hearsay were the $7,000 supervision fee and the estimate of $5,000 to $10,000 for an environmental assessment. Both of these items were testified to by Mr. Mascarenhas based upon his own personal knowledge. Particularly, with regard to the environmental assessment costs, Mr. Mascarenhas stated “this is my rough estimate.”

However, this is in stark contrast with the testimony provided by Mr. Mascare-nhas regarding the other proposals, none of which were identified as being “his” estimates, or based upon “his” personal knowledge. Cedyco objected to the testimony of Mr. Mascarenhas and the documentary evidence which formed the basis for his testimony as being inadmissible hearsay.

| uFreeport also argued that the documents testified to by Mr. Mascarenhas were business records and were thus subject to an exception to hearsay objections.

Recently, we addressed the business records exception in Brooks v. Reimonenq, 2010-0296 (La.App. 4 Cir. 7/21/10), 44 So.3d 824. In Brooks, this Court wrote:

The Louisiana Code of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). Hearsay is inadmissible at trial unless one of the exceptions in the Code of Evidence applies. La. C.E. art. 802. Generally, a trial court’s rulings on evi-dentiary issues will not be disturbed absent a clear abuse of discretion. Stewart v. Ice, 07-0871, p. 7 (La.App. 4 Cir. 4/9/08), 982 So.2d 928, 933 (citing Jones v. Peyton Place, Inc., 94-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763).

La. C.E. art. 803 provides the business records exception to the hearsay rule, stating in relevant part:

The following are not excluded by the hearsay rule, even though the de-clarant is available as a witness;
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information | ir,or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.
It is well settled that the witness laying the foundation for admissibility of business records need not have been the preparer of the records. Finch v. ATC/Vancom Management Services Ltd. Partnership, 09-0483, p. 8 (La.App. 5 Cir. 1/26/10), 33 So.3d 215, 220. Under article 803(6), what is necessary is that a custodian or other qualified witness explain the record-keeping procedures of the business and thus lay the foundation for the admissibility of the records. Id. A qualified witness is one who has a familiarity with the record-keeping system of the business. Id. (citing State v. Juniors, 03-2425, p. 47 (La.6/29/05), 915 So.2d 291, 327).

Brooks, 2010-0296, at pp. 4-5, 44 So.3d at 827-28.

Therefore, based upon the Code of Evidence and jurisprudence it is clear that the district court had no competent evidence of damages before it. La. C.E. art. 802 provides that “hearsay is not admissible except as otherwise provided by this Code or other legislation.” Code of Evidence Article 801(C) defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Pursuant to Code of Evidence Article 801(A) a “statement” includes either oral or written assertions. State v. Joya, 354 So.2d 543 (La.1978); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971). The hearsay rule excludes out of court statements which are offered to prove the truth of the matter contained therein. Id. As noted by the Supreme Court in Joya, there are several reasons underlying the hearsay rule. First, the out-of-court statements made by the person “testifying” | njhave been not made under oath. Second, the opposing party has no opportunity for cross examination of the witness making those statements in the presence of the trier of fact. State v. Joya, 354 So.2d at 545.

In the instant case, the testimony of Mr. Mascarenhas was offered by Freeport in lieu of the testimony of the representatives of the various contractors who had submitted proposals, namely Estis, Kostmayer and Rennies. Freeport was permitted to introduce evidence regarding the amounts of these various estimates by contractors without subjecting any of the individuals who actually submitted the estimates to cross examination. Thus, Cedyco’s had no opportunity to explore the basis for these estimates by contractors, the scope of the intended work. Furthermore, “[hjowever, it is well settled that a repair estimate is inadmissible hearsay which has no probative value in the absence of expert testimony from the witness who prepared the estimate.” Harris v. Hamilton, 569 So.2d 1, 4 (La.App. 4th Cir.1990), (citing Fairconetue v. Williams, 482 So.2d 198, 199-200 (La.App. 4th Cir.1986)).

Louisiana law defines personal knowledge as “something which the witness actually saw or heard as distinguished from something he learned from another person or source.” Dixon v. Evans Cooperage, Inc., 97-69, p. 5 (La.App. 5 Cir. 6/30/97), 697 So.2d 359, 362. Thus, the testimony of Mr. Mascarenhas regarding matters outside the scope of his personal knowledge, based upon information communicated to him by others, constitutes inadmissible hearsay. It is clear that the information testified to by Mr. Mascarenhas, namely the estimated cost of the various work, could only have been known by him as result of what he was told. Thus, whether the evidence of the cost of the work was introduced through the letters or written estimates prepared by the contractors, or, as is the in the instant [ 17case, through the testimony of Mr. Mascarenhas, it was clearly hearsay and inadmissible. See Sims v. Liberty Mutual Ins. Co., 2004-584 (La.App. 8 Cir. 3/2/05), 897 So.2d 834, 840-41; LaRocca v. Burley, 303 So.2d 312, 315 (La.App. 4th Cir.1974).

Therefore, we find that the proposals of Estis, Kostmayer and Rennies were introduced in error since they are rank hearsay. Clearly, Mr. Mascarenhas did not have the personal knowledge to produce the figures presented in the proposals of Estis, Kostmayer and Rennies. Thus, the only admissible testimony of Mr. Mascare-nhas — based on his own personal expertise — was his reference to the $7,000 supervision fee and the estimate of $5000.00 to $10,000.00 dollars for an environmental assessment. We vacate the portion of the district court judgment which awarded Freeport $105,000.00 to plug and abandon the two wells, $74,300.00 for removal and cleaning of tanks, and $3,700.00 to restore land. We amend the district court judgment to reflect an award of $17,000.00, as this is the portion supported by admissible testimony.

In its second assignment of error, Cedyco argues that the district court erred in failing to enforce paragraph 19 of the lease which provides that no assignment of the lease by the lessor would be valid until 30 days after notice to the lessee.

As the landowner and lessor, Freeport brought this suit to enforce the obligor Cedyco to properly plug and abandon the two wells on Freeport’s land, and to have Freeport’s property at the well sites properly restored as required by Paragraph 12 of the two leases. The record indicates that both oil and gas leases at issue in this case contain a provision which strictly limits the effectiveness of any attempts to assign the rights of either the lessee or the lessor. In particular, paragraph 19 of the leases provides as follows:

|1sNo assignment, either in whole or part, of this lease shall be made by Lessee without the prior written consent of Lessor. The interest of Lessor may be assigned in whole or in part, but such assignment shall not be binding upon Lessee until thirty (30) days after Lessee shall have been furnished with a certified copy of the recorded instrument or instruments showing such change of ownership.

Cedyco maintained at the conclusion of the trial that Freeport had failed to establish that it was the successor in interest, through either merger or assignment, of the original lessor Freeport Minerals Company. Thus, as argued by Cedyco, Free-port did not prove that it was the proper party to sue to enforce the rights of the lessor under the leases in question.

At the post trial hearing held on July 24, 2009, Freeport was permitted to reopen the evidence in order to prove that it was the successor in interest to Freeport Mineral Company, and that it was a proper party to enforce the lessor’s rights under the oil and gas leases. Freeport called Mr. Marshall Page to testify and identify documents purporting to establish that Freeport is in fact the successor in interest to Freeport Mineral Company.

The testimony of Mr. Page illustrated how the ownership of the immovable property was transferred from Freeport Mineral Company to Freeport:

[t]he real estate that was in the name of Freeport Minerals- ended up making its way into Freeport Sulfur Company by way of a name change to Freeport Mineral Company. Following that Freeport Sulfur Company merged into Freeport McMoran Inc. Following that in connection with the IMC Global merger we transferred the real estate from Free-port-McMoran Inc. into Freeport Research Partners, and from there, on the same day, transferred the real estate from Freeport Resource Partners to a newly formed entity, Freeport McMoran Sulfur, Inc. From there Freeport-Sulfur Inc. I think it was in 1998, merged into Freeport-McMoran Sulfur LLC, and then that company changed its name to Freeport McMoran Energy LLC.

119Cedyco argues that according to the testimony of Mr. Page, at least two “transfers” of the ownership of the underlying real estate occurred: the first from Free-port-McMoran Inc. into Freeport Research Partners, and the second, “on the same day” from Freeport Resource Partners to a newly formed entity, Freeport McMoran Sulfur, Inc. However, despite acknowledging the transfer by Freeport Mineral Company of the ownership of the underlying land, Cedyco argues that neither Mr. Page nor any other witness in this case provided any evidence demonstrating that Freeport or any of its predecessors in interest ever notified the lessees on the oil and gas leases of the assignments in question. Thus, Cedyco argues, Freeport failed to establish that any steps had ever been taken to comply with the requirements of paragraph 19 of the leases.

When Mr. Page was asked directly, “what about Hilliard .... was the lessee at any time ever given notice,” he testified that he didn’t “have any personal knowledge of any notice being given.” Cedyco argues that had notice been given to any of its predecessors in interest it would have been effective. However, Cedyco argues that Freeport introduced no evidence of notice of an assignment being given to any party.

Cedyco further argues that Freeport cannot pretend that the requirements of paragraph 19 do not exist. The lease provision unambiguously provides that the assignment of interest of the lessor “shall not be binding upon lessee” until after the lessee has been provided with a certified copy of the documents representing the change in ownership. Unless notice was given to some lessee, defendant Cedyco was under no obligation to recognize the interest claimed by the purported lessor, Freeport.

120La. C.C. art. 2046 addresses the interpretation of contracts and provides that “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” The rules of strict construction do not authorize the creation of ambiguities where none exist, and do not permit courts to modify contractual obligations when the language used by the parties it is clear. Fourroux v. Board of Com’rs for Orleans Levee District, 2002-0374, p. 6 (La.App. 4 Cir. 1/8/03), 837 So.2d 698, 702. The words of paragraph 19 of the oil and gas leases at issue in this case are clear and explicit and therefore the provisions of paragraph 19 should be enforced as written. Louisiana courts have repeatedly enforced the strict requirements of written notice provisions in mineral leases. Amoco Production Co. v. Texaco Inc., 2002-240, pp. 19-20 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, 835; Lamson v. Austral Oil Co., 1997-1596, pp. 5-6 (La.App. 3 Cir. 6/10/98), 712 So.2d 1081, 1084.

Freeport argues that Cedyco is the successor lessee of the two Oil and Gas Leases, having acquired its interest in the leases in the summer of 1999. Particularly, Freeport argues that Cedyco became the operator of Plaquemines well on June 1, 1999, and that Cedyco became the operator of Freeport Sulphur well, effective June 1,1999.

On October 31, 2002, Freeport wrote a letter to Cedyco indicating that because production had ceased in paying quantities on both leases, that Cedyco comply with its obligations to plug and abandon both the Plaquemines well and the Freeport Sulphur well and restore the land around the well locations. However, Cedyco took no action.

hi On May 16, 2008, counsel for Freeport again wrote to Cedyco to demand that it comply with its obligations to plug and abandon the two wells and restore the land around the well locations. Again, Cedyco took no action; rather, it responded that the two Oil and Gas Leases were being maintained by “partial production, well work and maintenance, and [a] force maj-eure.”

In response thereto, counsel for Free-port wrote to Cedyco on June 20, 2003, asking for detailed information regarding its unsupported representations that the two leases had not terminated. Still, Ce-dyco took no action. On August 4, 2003, counsel for Freeport wrote to Cedyco once again to request the information. Cedyco did nothing. On May 20, 2008, almost five years later, counsel for Freeport wrote to Cedyco, making final formal demand, requesting that Cedyco perform its obligations to plug and abandon the two wells and restore the land around the locations.

Based on the numerous communications sent to Cedyco in reference to the subject leases, Cedyco had requisite notice to be made aware that Freeport was seeking to enforce contractual obligations. The letters of October 31, 2002, and May 16, 2003, illustrate that at the very least Cedyco was put on notice that Freeport sought to enforce a purported contractual obligation. However, as illustrated by the record, Ce-dyco took no action until it was actually sued by Freeport. Therefore, we find that this assignment of error does not have merit.

In its third and final assignment of error, Cedyco argues that the district court erred in awarding $84,809 in attorney’s fees to Freeport. Cedyco argues that although trial courts are vested with considerable discretion in rendering awards of attorney’s fees, the courts of appeal are authorized to inquire into the reasonableness of an award of attorney’s fees, and where the award is clearly ^excessive or grossly out of proportion have a duty to intervene. Dinsmore v. Dhume, 561 So.2d 971, 973 (LaApp. 4th Cir.1990).

Cedyco argues that the award of the district court was excessive based upon several factors. First, if Freeport’s evidence of damages was largely based upon inadmissible hearsay, then the award of damages to Freeport should be reduced to $17,000. Second, Cedyco argues that the work necessary to establish Freeport’s claim should have consisted of preparing a petition, filing a motion for partial summary judgment, filing a motion to compel and a motion for sanctions, followed by a short trial. Cedyco maintains that based upon the limited scope of the instant ease, the bill of counsel for Freeport of $84,000 for legal fees is disproportionate.

Third and finally, as alleged by Cedyco, much of the work performed by Freeport’s counsel was wasteful and unnecessary. Cedyco argues that some of the work, particularly Freeport’s opposition to the dilatory exception of venue filed by Cedy-co, and the subsequent writ application filed in this Court, contained blatant and material misrepresentations. Additionally, Cedyco contends that a significant portion of the testimony of Ms. Parmelee was intentionally directed towards the question of the mineral royalties and elicited statements that were contradictory to the claims asserted in Freeport’s petition.

However, as was discussed in the second assignment of error, Cedyco failed to take any action to avoid being sued. Although Freeport sent correspondence to Cedyco several times seeking to enforce the terms of the lease agreement, it was to no avail.

12aOnce Cedyco was sued, it filed a pro se answer and shortly thereafter it filed numerous motions and exceptions. Cedyco even sought supervisory review from this Court after the district court denied its exception regarding venue. Each motion or exception filed by Cedyco required counsel for Freeport to take action in opposition. In addition, the district court was also forced to deal with the failure of Cedyco to participate in discovery during the pretrial period. In particular, Free-port filed a motion to compel discovery which the district court granted. However, due to the failure of Cedyco to comply with the order of the district court compelling discovery, Freeport filed a motion for sanctions against Cedyco, which was also granted by the district court. Eventually, after Freeport filed its motion to strike Cedyco’s answer, the district court grew tired of the shenanigans of Cedyco and ordered “alternative relief’ by barring Ce-dyco from presenting any witnesses or evidence of its own at trial. Thus, while Cedyco argues that it was prejudiced by the district court judgment awarding attorneys’ fees, Cedyco appears to have forgotten that its actions in the district court hindered the progress of the judicial process. Essentially, Cedyco was a recalcitrant defendant and the district court awarded attorneys’ fees based on the actions of Cedyco which interdicted the pretrial procedure.

Thus, based on our review of the record, the award of attorneys’ fees of $84,809.00 by the district court was a reasonable fee for the work product performed by counsel for Freeport in the instant case. This portion of the judgment is affirmed.

DECREE

Based on the foregoing, we vacate that portion of the district court judgment which: awarded Freeport (1) $105,000.00 to plug and abandon the two wells; (2) 1⅞4$74,300.00 for removal and cleaning of tanks; and (3) $3,700.00 to restore land, finding that Freeport failed to present competent evidence of damages. We amend the district court judgment to reflect an award of $17,000.00, as this is the portion of the judgment supported by admissible and competent testimony. In all other respects, the judgment of the district court is affirmed.

AMENDED IN PART; REVERSED IN PART; AFFIRMED AS AMENDED.

      . The district court had previously set a discovery cutoff date for March 27, 2009.

      . The written order relating to this decision was not entered until the date of trial, June 29, 2009.

      . It was at the June 18, 2009 hearing that trial and appellate counsel Vincent Booth first enrolled as co-counsel for Cedyco.

      . Venue involving a claim for rights in immovable property is governed by La. C.C.P. art. 80, which provides in pertinent part:
      A. The following actions may be brought in the parish where the immovable property is situated or in the parish where the defendant in the action is domiciled:
      (1) An action to assert an interest in immovable property, or a right in, to, or against immovable property, except as otherwise provided in Article 72.

      . This subpart provides for venue in the parish where the immovable property is situated, in addition to any other venue provided for by law. This supplemental allowance by subpart 80(A)(3) allowed Freeport to claim that venue was proper in Orleans Parish pursuant to Article 76.1.2.

      .Although Cedyco cited the CLK Co., L.L.C. v. CXY Energy Inc., 1998-0802 (La.App. 4 Cir. 9/16/98), 719 So.2d 1098, decision in support of its writ application to this Court. In CLK, a plaintiff corporation brought an action against a defendant corporation, alleging that the defendant had failed to convey to plaintiff a mineral royalty interest that was due under agreement. In the instant matter, Cedyco (the defendant) challenges the right of Free-port (the plaintiff) to assert a claim for mineral rights, thereby distinguishing CLK. The reason stated for the challenge was that Freeport had represented to this Court that its suit did not "assert any claim related to ... its ownership of the mineral rights.” Thus, unlike the plaintiff in CLK, Freeport, at least during the pendency of the venue dispute, had not asserted a claim for mineral royalties.

      . Cedyco further contends that the existing award of attorney’s fees would be more than five times the amount of damages established by these attorneys’ "work product.”


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge. ROTHSCHILD, J.,

license: Public Domain

text:
    Jamie BROUSSARD, Wife of Sherman J. Rogers, Jr. v. Sherman J. ROGERS, Jr.
    No. 10-CA-593.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.
    Rehearing Denied Feb. 7, 2011.

      Greenberg, & LaPeyronnie, David Greenberg, Ann Thompson, Attorneys at Law, Gretna, LA, for Plaintiff/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   CLARENCE E. McMANUS, Judge.

|2The parties were married on June 14, 1997. One child was born of the marriage on October 23, 2000. Thereafter, the parties were divorced on December 15, 2003. On June 27, 2003, the parties entered into a joint custody agreement, where the parties shared legal joint custody with alternating one week periods. No custodial parent was designated at that time, and no agreement as to child support was made.

On May 20, 2009, Ms. Broussard filed a Rule to Change Custody and for Child Support, alleging that the custody agreement which they had been following was no longer workable. At this time, the child was eight years old and attending school. Ms. Broussard requested that a more traditional plan of custody be implemented and that she be named the custodial parent, and she also requested that the court set an amount of child support. Mr. Rogers filed exceptions of vagueness and/or ambiguity and no cause of action. Thereafter, Ms. Broussard filed a supplemental pleading alleging facts to support her request for a change in custody. At the hearing on August 13, 2009, the trial court orally granted the ^exceptions in part and denied in part. However, no written judgment was rendered until March 5, 2010.

Upon recommendation of the hearing officer, the trial court entered an interim judgment of child custody on October 2, 2009. The judgment provided that Mr. Rogers would have visitation every other weekend, from after school on Friday afternoon until 6 p.m. on Sunday, and on every Tuesday and Thursday from after school until 8 p.m. A final judgment was rendered on February 10, 2010, with the same schedule, except that Mr. Rogers was given two days a week, unnamed, with overnight visitation. No appeal was taken from this judgment.

On January 15, 2010, Ms. Broussard filed a second rule to establish child support. The trial court rendered an interim judgment of support on February 24, 2010, in the amount of $225.00 per month. Ms. Broussard objected to the recommendations of the hearing officer, and on March 4, 2010 the trial court rendered a judgment denying her objection. On March 5, 2010, the trial court rendered a judgment which granted the exception of prematurity to Ms. Broussard’s first rule for child support, thereby reducing to writing his oral ruling of August 13, 2009. The mother has appealed from these rulings.

Appeal from the Ruling of March 4, 2010

In this appeal, Ms. Broussard alleges that the trial court erred in calculating child support. She contends that the wrong schedule was used, namely that the hearing officer and the trial court utilized Schedule B (LSA-R.S. 9:315.9) instead of Schedule A (LSA-R.S. 9:315.8).

LSA-R.S. 9:315.8 provides for the setting of child support in joint custody cases, and states that Worksheet A is to be utilized in calculating child support. |4 However, LSA-R.S. 9:315.8(E) provides that “ ‘Joint Custody means a joint custody order that is not shared custody as defined in R.S. 9:315.9”. A shared custody agreement is specifically excluded from the provisions of LSA-R.S. 9:315.8.

LSA-R.S. 9:315.9 provides that “ ‘Shared custody” means joint custody in which each parent had physical custody for an approximately equal amount of time.” In determining whether a particular arrangement is shared, LSA-R.S. 9:315.9 does not bind the trial court to a threshold percentage determined solely on the number of days. Rather, the statute mandates an “approximately equal amount of time.” The trial court has discretion in determining whether a particular arrangement constitutes “shared custody,” justifying the application of LSA-R.S. 9:315.9. Martello v. Martello, 06-0594 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 195-6.

In this case, the trial court ordered Mr. Rogers to have the child every other weekend from Friday afternoon until Sunday night and two overnights per week. The court determined that this agreement constituted shared custody, in that the mother had the other weekends from Friday afternoon, and the other two nights | ^during the week. While the court did state that if a visitation night was missed, there would be no rescheduling, the custody schedule had not yet been implemented, and so the father had not consistently missed visitation under this schedule.

Ms. Broussard argues that the trial court improperly applied R.S. 9:315.8(E)(2) in determining that the father’s custody equaled approximately one-half of the time. She calculates that the father has custody for 42.85% of the time, arguing that the Friday and Sunday visitations constituted one-half day each. While R.S. 9:315.8 and R.S. 9:315.9 do not define what constitutes a day for custody purposes, R.S. 9:315.8(E)(2) does provide that for the purposes of determining child support credit, what constitutes a day shall be determined by the court, however it must consist of at least 4 hours.

The trial court did not state that he used R.S. 9:315.8(E)(2) in calculating custody. However, we find nothing in the statutes that prohibits the trial court from determining what a day is for the purposes of determining custody, and nothing that prohibits the court from considering R.S. 9:315.8(E)(2) as guidance.

Ms. Broussard also cites this court’s decision in In re: Borne v. Sutton, 04-826 (La.App. 5 Cir. 12/28/04), 892 So.2d 128, for the proposition that the custody/visitation arrangement in this case does not constitute shared custody. In that case, while the court granted increased visitation to the father, it did not define the custody determination as a shared custody arrangement. Furthermore, the father did not argue that the custody was shared custody during the support hearing, and did not raise the issue of shared custody or Worksheet B in the trial court. This Court considered the manifest error rule and determined that there was no manifest error in the ruling of the trial court. Accordingly, In re: Bone v. Sutton is not dispositive of the case before us.

IfiOur review of the court’s custody decree reflects no abuse of discretion in the trial court’s finding of shared custody.

LSA-R.S. 9:315.9(B) provides that in cases of shared custody, Worksheet B shall be used to determine child support. In this case, the hearing officer calculated child support utilizing Worksheet B, and the trial court adopted this calculation in determining child support. A trial court’s child support order will not be reversed absent abuse of discretion. In re: Borne v. Sutton, supra. We find no abuse in the determination of the trial court.

Appeal from the Ruling of March 5, 2010

Ms. Broussard alleges that the trial court erred in granting the exceptions of ambiguity and no cause of action to her first petition for child support. In its oral reasons for judgment, the court stated that it was granting the exception to the claim for child support because “you do have to have an actual change in custody ... before you can state a cause of action for a modification of support.”

The transcript of the hearing on the issue of child custody makes some reference to a prior support obligation of $10.00 to $13.00; however there is nothing in the record to show that there was a prior award of child support to the mother. Since there was no prior award of support, the trial court erred in determining that plaintiff requested a change in the support award as opposed to an initial determination of support.

We note that the custody decree that was modified was also a decree of shared custody, and therefore the same award of support would be applicable. Accordingly, we amend the judgment of the trial court to award child support retroactive to the filing date of the first request for child support on May 20, 2009. LSA-R.S. 9:315.21.

|7For the above discussed reasons, the trial court’s judgment finding that the custody agreement was a shared custody agreement and that the use of Worksheet B for calculating child support was warranted is affirmed. The judgment is amended to make the award retroactive to May 20, 2009, the date of filing of Rule to Change Custody and for Child Support. Costs are assessed equally between the parties.

AFFIRMED AS AMENDED

ROTHSCHILD, J„ dissented and assigned reasons.

ROTHSCHILD, J.,

dissenting.

Lin my view, the trial court erred in upholding the hearing officer’s calculation of defendant’s child support obligation. I would reverse the judgment and remand for further proceedings, and thus I must dissent from the majority opinion.

The parties in this matter, Jamie Brous-sard and Sherman Rogers, were divorced by judgment rendered on December 15, 2003 and the parties originally agreed to a plan of shared custody. No amount of child support was set at this time. However, in May of 2009, Ms. Broussard filed a Rule to Change Custody and for Child Support based on allegations that the child was in her care 60-70% of the time due to Mr. Sherman’s erratic work schedule. On October 2, 2009, the trial court entered an order of joint custody, with Ms. Broussard designated as domiciliary parent. Mr. Rogers was awarded visitation with the child every other weekend from Friday after school until Sunday at 6 pm, and every Tuesday and Thursday from after school until 8 pm. Following this ruling, Mr. Rogers objected and the trial court rendered judgment on February 18, 2010 confirming the joint custody order but adding that Mr. Rogers is entitled to two overnight visits per week depending on his work schedule.

Prior to this judgment in the trial court however, the matter of Ms. Broussard’s rule for child support was considered by the hearing officer. The hearing officer determined that the custodial arrangement was a shared ^custody arrangement and he therefore utilized the Shared Obligation Worksheet, also referred to as Worksheet “B,” to determine Mr. Rogers’ child support obligation. Following Ms. Brous-sard’s objection, the trial court, by judgment rendered March 4, 2010, upheld this calculation and the finding of a shared custody arrangement.

In affirming this ruling, the majority finds no abuse of discretion in the finding that the custodial arrangement constituted shared custody. However, after review of the record and applicable law, I find no factual or legal support for a finding of shared custody, and I therefore find that the hearing officer erred in using that arrangement and corresponding worksheet in the calculation of child support in this case.

Shared custody under this provision is defined as “physical custody of the child for an approximately equal amount of time.” La.R.S. 9:315.9(1). Lea v. Sanders, 04-762 (La.App. 3 Cir. 12/22/04), 890 So.2d 764, 766. Joint Custody means a joint custody order that is not shared custody as defined in La. R.S. 9:315.9. La. R.S. 9:315.8 E.

In the present case, the parties clearly have in place a “joint” custody arrangement, not a “shared” custody arrangement as was the case in Hughes v. Talton, 06-319 (La.App. 5 Cir. 11/14/06), 947 So.2d 735, 738. Although the majority cites case law to support the position that the trial court has the discretion to determine whether an arrangement constitutes shared or joint custody, the Court found in that case that a joint custody arrangement was proper where evidence indicated the father had physical custody 42% of the time, a percentage which the court failed to determine to be an “approximately equal” amount of time. Martello v. Mar tello, 06-594 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 196. (Ironically, this is the amount of time Ms. Broussard contends the custody order allows Mr. Rogers.)

| ¡¡Further, unlike the Martello case, the record in the present case fails to contain any evidence regarding the amount of time each party has physical custody of the child since the implementation of the custody order. There is nothing in the record to support a factual finding that the parties shared custody in this case or had physical custody of the child for an “approximately equal” amount of time. Ms. Broussard specifically testified that Mr. Rogers’ work schedule has consistently prevented an equal sharing, and she presented calendar logs for several months which indicated she had physical custody approximately 60-70% percent of the time. Although the logs were compiled prior to the October 2009 custody order designating Ms. Broussard as the domiciliary parent and granting visitation to Mr. Rogers every other weekend and two afternoons per week, this new order on its face does not constitute a shared custody arrangement. Further, the trial court rendered judgment on February 18, 2010 allowing Mr. Rogers the opportunity to have two additional nights of overnight visitation per week but this schedule had not yet been implemented when the child support calculation was made by the hearing officer. In fact, the trial court judgment on March 4, 2010 was rendered only two weeks after the additional visitation was offered, and there is absolutely no evidence in the record which indicates that the physical custody was ever “approximately equal.”

Finally, I disagree with the majority’s decision to uphold the hearing officer’s calculation based on the provisions of La. R.S. 9:315.8(E)(2). That statute specifically applies to a credit in the child support obligation, and there is no legal support for a finding that a day consists of at least 4 hours for determining whether the custody is joint or shared. However, Mr. |4Rogers can rely on this statute in the event time spent with the child allows a reduction in his support obligation.

Accordingly, after a careful review of the record in this case, I find that the record fails to support the hearing officer’s determination that the parties shared custody in this case. As such, I also find that the hearing officer erred in using Worksheet B to calculate the child support obligation and the amount of the obligation established does not reflect the best interests of the child. I would therefore reverse the judgment of the trial court finding a shared custody arrangement in this case and remand the case for a recalculation of the child support obligation.

      . The father’s attorney withdrew as counsel of record on September 16, 2010. No brief was filed on the father’s behalf.

      . LSA-R.S. 9:315.9 provides:
      A. (1) "Shared custody” means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.
      (2) If the joint custody order provides for shared custody, the basic child support obligation shall first be multiplied by one and one-half and then divided between the parents in proportion to their respective adjusted gross incomes.
      (3) Each parent’s theoretical child support obligation shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party.
      (4) Each parent’s proportionate share of work-related net child care costs and extraordinary adjustments to the schedule shall be added to the amount calculated under Paragraph (3) of this Subsection.
      (5) Each parent’s proportionate share of any direct payments ordered to be made on behalf of the child for net child care costs, the cost of health insurance premiums, extraordinary medical expenses, or other extraordinary expenses shall be deducted from the amount calculated under Paragraph (3) of this Subsection.
      (6) The court shall order each parent to pay his proportionate share of all reasonable and necessary uninsured medical expenses under the provisions of R.S. 9:315(C)(7) which are under two hundred fifty dollars.
      (7) The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent.
      B. Worksheet B reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.

      . The record indicates the hearing officer made its child support calculations on February 10, 2010, one week before the trial court allowed Mr. Rogers the opportunity of additional overnight visitation.


author: CHANDLER, Justice, KITCHENS, Justice,

text:
    LINCOLN ELECTRIC COMPANY and The ESAB Group, Inc. v. Stanley McLEMORE.
    No. 2009-CA-00320-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.
    Rehearing Denied March 10, 2011.
    Michael W. Ulmer, James Joseph Cron-geyer, Jr., Hugh Ruston Comley, James Matthew Tyrone, Mark C. Carroll, R. David Kaufman, M. Patrick McDowell, Jackson, attorneys for appellants.
    James D. Shannon, Hazlehurst, Jamie H. Edwards, Joe Robert Norton, TV, John E. Herrick, Elizabeth C. Ward, attorneys for appellee.
   CHANDLER, Justice,

for the Court:

¶ 1. This case involves a welder’s claim of product liability and failure to warn against Lincoln Electric Company (Lin-coin) and the ESAB Group, Inc. (ESAB), manufacturers of welding rods (“Defendants”), for exposure to harmful welding fumes that resulted in his eventual diagnosis of manganism, a neurological disease caused by high exposure to manganese. The plaintiff, Stanley McLemore, alleged that he had used the Defendants’ rods, which contained manganese, to weld materials together.

¶ 2. McLemore filed a complaint in the Circuit Court of Copiah County on November 14, 2005. An amended complaint followed on March 3, 2006. In April 2007, the Defendants filed a motion for summary judgment, claiming that McLemore had filed suit outside the three-year statute of limitations. The trial court denied the motion for summary judgment. The Defendants also filed a motion to exclude the expert testimony of Dr. Michael Swash, which the trial court denied.

¶ 3. The matter proceeded to trial on November 6, 2008. A jury returned a verdict in favor of McLemore finding the Defendants liable and awarding McLe-more $1,855,000. The Defendants filed post-trial motions for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. Following the trial court’s denial of the motions, the Defendants filed a notice of appeal raising three issues:

I. Whether the trial court improperly admitted McLemore’s medical expert’s diagnosis.
II. Whether McLemore proved that each Defendant’s products were a substantial factor in causing his injury.
III. Whether McLemore’s claims were barred by the statute of limitations, and whether the form of the verdict misstated the relevant question on the issue of statute of limitations.

¶ 4. Finding the issue of the statute of limitations to be dispositive, this Court reverses and renders the trial court judgment enforcing the verdict of the jury.

FACTS

¶ 5. Stanley McLemore worked as a welder for almost thirty years. In the course of his career, McLemore worked all over the country, with two long stints at Grand Gulf Nuclear Power Station from 1980 through 1984 and from 1993 through 1998. In December 2001, McLemore experienced difficulty welding and developed slowness in his left hand and arm. McLe-more was left-handed and relied on his left hand in his welding work.

¶ 6. At first, McLemore thought that he had pinched a nerve, and he went to see a chiropractor. The chiropractor referred McLemore to Dr. Joseph Farina, a neurologist. Dr. Farina informed McLemore that he had Parkinsonism or Parkinsonian syndrome, and his condition could have been related to welding. McLemore went to the office of an attorney whom he previously had used for legal work, after Dr. Farina examined him and mentioned the attorney’s name.

¶ 7. Subsequently, McLemore saw Dr. Michael Graeber, Dr. Albert Hung, Dr. Michael Swash, Dr. Robert Herdon, Dr. David Doorenbos, and Defendants’ medical expert, Dr. Ray Watts. When Dr. Hung examined McLemore in Boston in December 2002, he advised McLemore to discontinue welding.

¶ 8. Dr. Swash was McLemore’s main expert witness at trial. This doctor was the only physician to diagnose McLemore with manganism. According to Dr. Swash, manganism is a syndrome with features of atypical Parkinsonism that is caused by exposure to manganese. While McLemore saw a host of other physicians between December 2001 and his trial date in 2008, they determined that he had some form of Parkinsonism. A few considered manganism, but ultimately decided against that diagnosis. Only Dr. Swash determined that McLemore had manganism.

¶ 9. McLemore stated that he first learned that he suffered from manganism in 2005. However, McLemore filed various lawsuits claiming neurological injuries from exposure to welding products as early as February 2004. The first complaint was filed on February 13, 2004, against various corporations for injuries suffered from those defendants’ sale and/or distribution of defective welding consumables. The complaint did not name either Lincoln Electric or ESAB, although it named John Doe Defendants 1-20. On August 31, 2004, McLemore filed a complaint alleging “serious neurological injuries” due to exposure to manganese in the Defendants’ welding consumables. This complaint named Lincoln Electric and ESAB and other defendants, was not served on anyone, and was dismissed voluntarily by McLemore on December 28, 2004. McLe-more filed another complaint on November 14, 2005, alleging “serious neurological injuries” due to exposure to manganese in the Defendants’ welding consumables. This complaint was not served on anyone. McLemore filed an amended complaint on March 3, 2006, again alleging “serious neurological injuries” due to exposure to manganese in the Defendants’ welding consumables. The Defendants were served with the amended complaint no later than March 14, 2006.

DISCUSSION

I. Statute of limitations and form of the verdict

¶ 10. This Court applies a de novo standard of review to the statute of limitations. Harris v. Darby, 17 So.3d 1076, 1078 (Miss.2009) (citing Ellis v. Anderson Tully Co., 727 So.2d 716, 718 (Miss.1998)).

¶ 11. The Defendants claim that the trial court erred on two issues concerning the statute of limitations by (1) denying the Defendants’ motion for JNOV (and their motion for summary judgment) for McLemore’s alleged failure to file within the three-year statute of limitations under Mississippi Code Section 15-1-49, based on the date of discovery or date he should have discovered his injury, and (2) giving a jury-verdict form that asked the jury to determine when McLemore should have known about his manganism instead of the more general inquiry of when he should have known about his injury. Finding the first of the two issues dispositive, this Court will not address the form of the jury verdict.

A. Section 15-1-49

¶ 12. Defendants argue that McLemore knew that he had an injury on September 3, 2002, when Dr. Farina diagnosed him with Parkinsonism and informed him that his condition may have been related to his occupation as a welder. Accordingly, the Defendants reason that McLemore should have filed suit on or before September 3, 2005, yet he filed this cause of action on November 14, 2005.

¶ 13. McLemore, on the other hand, argues that his cause of action did not accrue until October 2005, when he was diagnosed with manganism. Further, McLemore argues that both parties were in agreement that welding fumes do not cause Parkinson’s disease. However, it also was undisputed that welding fumes may cause manganism. McLemore contends that he had no cause of action until he knew that he had manganism. Prior to his diagnosis, McLemore visited physicians in an effort to identify his condition. Until he knew he had manganism, McLemore argued that he did not know that the welding fumes had caused his damages.

¶ 14. Mississippi Code Section 15-1-49 concerns the three-year statute of limitations and states:

(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss.Code Ann. § 15-1-49 (Rev.2003).

¶ 15. Pursuant to Mississippi Code Section 15-1-49(2), a plaintiffs cause of action accrues at the point at which he discovered, or by reasonable diligence should have discovered, the injury. Therefore, this Court must consider the application of the latent-injury/discovery rule and whether McLemore’s statute of limitations began to run when either (1) he knew of his Parkin-sonism, or (2) he knew of the diagnosis of manganism.

¶ 16. While McLemore’s November 2008 trial preceded this Court’s most recent application of Section 15-1-49(2), and the litigants and trial court did not have the benefit of this Court’s decision in Angle v. Koppers, Inc., 42 So.3d 1 (Miss.2010), the case nonetheless is applicable to this appeal. In Angle, this Court determined that the plain language of Section 15-1-49 supports an interpretation “that the cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in original).

¶ 17. In Angle, the plaintiff filed suit on March 16, 2006, against various defendants including Koppers, a wood-treatment plant, and others for injuries suffered as a result of harmful exposure to toxic chemicals from 1984 through 2001. Id. at 2. The defendants moved for summary judgment based on Section 15-1-49 and its three-year statute of limitations. Id. at 3. Angle’s last injury occurred in 2001, five years before she filed the complaint. Id.

¶ 18. Without providing a known date, Angle responded that the statute of limitations began to run when she knew that she had an injury and the cause of her injury. Id. at 3. The Court found that the “cause of action accrued upon discovery of the injury, not discovery of the injury and its cause.” Id. at 5 (emphasis in original). The Court found that Angle’s injury accrued, at the latest, in 2001, when she was diagnosed with her last disease. Id. at 7.

¶ 19. In reaching its decision, this Court considered a number of prior cases, including Owens-Illinois, Inc. v. Edwards, 573 So.2d 704 (Miss.1990); Schiro v. American Tobacco Company, 611 So.2d 962 (Miss.1992); and PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 48 (Miss.2005). Owens-Illinois was an asbestosis case that handed down prior to the addition of subsection (2) to Mississippi Code Section 15-1-49, concerning the common-law discovery rule. Owens-Illinois, 573 So.2d at 705. The plaintiff, Edwards, a shipbuilder, was exposed to asbestos from the 1940s through 1984. Id. at 705. Edwards’s last exposure to asbestos occurred no later than December 31, 1976. Id. He had shortness of breath in 1980. Id. Medical personnel told Edwards that he should be examined for the possibility of asbestosis in 1983; however; x-rays revealed no signs of the disease. Id. Edwards was diagnosed finally with pulmonary pleural asbestosis on August 26,1986. Id. He filed suit on September 29, 1986, as part of a consolidated action. Id. The Court found that the cause of action had accrued and the statute of limitations period began to run “when the plaintiff can reasonably be held to have knowledge of the injury or disease.” Id. at 709. The Court held that the plaintiff’s action accrued on August 26, 1986, the date of his diagnosis of pulmonary pleural asbestosis.

¶ 20. This Court also discussed its decision in Schiro v. American Tobacco Company, 611 So.2d 962 (Miss.1992). See Angle, 42 So.3d at 6. The Schiro court cited Owens-Illinois for the rule that “a cause of action accrues when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested.” Schiro, 611 So.2d. at 964 (citing Owens-Illinois, 573 So.2d at 706). In Schiro, the plaintiff smoked for more than thirty years. Schiro, 611 So.2d at 963. She had a series of health problems including a diagnosis of emphysema in the late 1960s or 1970s; an aortoiliac bypass in 1975; a few episodes of hemoptysis (coughing up blood) in April and November 1981; detection of a small malignant mass in December 1981; and diagnosis of the mass as cancerous in January 24, 1982. Id. She filed suit on January 22, 1988. Id. The defense asserted that her cause of action accrued on either the day she stopped smoking, the day she coughed up blood and believed that she had cancer, or the day when the doctor diagnosed her with a malignant lung mass, all of which fell outside the then-six-year limitation period. Id. The Court held that the statute of limitations began to run on the day Schiro discovered that the mass was cancerous, because, prior to that time, her suit would have been premature. Id. at 965. While the Schiro court discussed the cause of the cancer as smoking, the Angle court noted that “the proper inquiry under the statute should have been the plaintiffs discovery of the injury or disease ... not the discovery of a causative relationship between smoking and the cancer.” Angle, 42 So.3d at 6.

¶ 21. More recently, in Lowery, a plaintiff went to work shortly after the office had been painted on October 1, 1999. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 48 (Miss.2005). Lowery noticed a strong paint odor when she arrived at work. Id. After a few hours, she became sick and disoriented. Id. Lowery also contacted the poison control center and reported the problem. Id. After passing out, Lowery went to the hospital and was treated and released. Id. at 48-49. When Lowery returned to the emergency room three days later, the doctor’s impression was that she had experienced toxin exposure. Id.

¶ 22. Lowery filed suit on June 12, 2000, and then amended her complaint to add PPG as a defendant on November 13, 2003. Lowery, 909 So.2d at 49. PPG asserted the affirmative defense of statute of limitations. Id. In Lowery, the Court explained that a latent injury is one which is “undiscoverable by reasonable methods.” Id. at 51 (citing Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999)). The Court considered “whether the plaintiff knew or reasonably should have known that an injury existed.” Lowery, 909 So.2d at 51 (citing Sweeney v. Preston, 642 So.2d 332, 336 (Miss.1994)). To determine whether she knew or reasonably should have known that she had an injury, this Court analyzed the actions taken by Lowery. Lowery, 909 So.2d at 51. The Court held that Lowery knew of her injury on October 1, 1999, the date of exposure. Id. In fact, the Court noted that Lowery, by her own admission, “knew when, how and by whom she had been injured on the night of her acute exposure.” Id. She had called the poison control center, had sought treatment from the emergency room, and had suffered immediate problems from exposure to the paint. Id. at 52.

¶23. Applying Angle to the instant case, McLemore knew of his injury on September 3, 2002. At that time, Dr. Farina informed him of the correlation between his symptoms and welding. As clarified in Angle, Section 15-1^49 does not require a plaintiff to know the cause of the injury before accrual of the cause of action. Angle, 42 So.3d at 6. While the notice of this causal relationship generally is irrelevant to the accrual of the cause of action, it shows McLemore’s knowledge of his injury at that time. Furthermore, McLemore thereafter sought legal advice which resulted in an initial filing of a lawsuit in 2004 claiming “serious neurological injury” from exposure to manganese products. Consequently, McLemore’s argument that he had no knowledge of his injury and its relation to welding until his diagnosis of manganism fails under this Court’s holdings in Angle and Lowery. Under Angle, knowledge of the cause of an injury is irrelevant to the analysis. Angle, 42 So.3d at 5. The inquiry is when the party knew or should have known of an injury. Id. Further, applying Lowery, this Court considers the actions taken by a party. Lowery, 909 So.2d at 51.

¶ 24. McLemore had difficulty using his left hand in December 2001. By September 3, 2002, Dr. Farina had informed McLemore that he had Parkinsonism and that it might have been related to his welding work. Thereafter, McLemore sought legal advice and filed a complaint alleging “serious neurological injury” related to manganese exposure. These events and actions by McLemore show that he knew, (or should have known) no later than September 2002, that he had an injury.

B. Tolling

¶ 25. Although not central to the disposition of this case, this Court will address the issue of tolling for a complete analysis. In a footnote to their brief, the Defendants raised concerns about multiple filings of this suit. As noted previously, the Defendants contend that McLemore knew or should have known that he had an injury on September 3, 2002, after his visit with Dr. Farina. At that medical appointment, Dr. Farina told McLemore that his condition might be caused by welding and that he should hire a lawyer. The Defendants contend that McLemore should have filed his complaint by September 3, 2005, but the complaint was not filed until November 14, 2005, and an amended complaint was not served on them until March 2006.

¶ 26. In this context, the Defendants maintain that any argument by McLemore that the filing of a prior lawsuit tolled the statute of limitations is incorrect. On August 31, 2004, McLemore filed a complaint which named the Defendants, was not served on anyone, and was dismissed voluntarily by McLemore on December 28, 2004. McLemore filed another complaint on November 14, 2005, (which was not served on anyone) and filed an amended complaint on March 3, 2006. The Defendants were served with the amended complaint no later than March 14, 2006. Based on these events, the Defendants assert that (1) McLemore should have filed suit by September 3, 2005, (three years after his known injury) and did not; and (2) any argument concerning tolling of the statute of limitations is without merit.

¶ 27. McLemore argues that there was proper tolling. In the alternative, he argues that his injury did not accrue until he was diagnosed with manganism.

¶ 28. Recently, in Marshall v. Kansas City Southern Railways Company, 7 So.3d 210, 213-214 (Miss.2009), this Court addressed whether a voluntary dismissal of a complaint had any effect on the tolling of the statute of limitations. We found that it did not toll the limitations period. Id. at 213-14. In Marshall, this Court stated:

This Court previously has held that a voluntary dismissal without prejudice:
[D]oes not deprive the defendant of any defense he may be entitled to make to the new suit, nor confer any new right or advantage on the complainant (plaintiff), and hence it will not have the effect of excepting from the period prescribed by the statute of limitations, the time during which that suit was pending.
Smith v. Copiah County, 232 Miss. 838, 100 So.2d 614, 616 (1958) (quoting W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8, 9 (1926) (quoting Nevitt v. Bacon, 32 Miss. 212, 228 (1856) (emphasis added))).

Id. In other words, when a party chooses voluntarily to dismiss an action, the party receives no tolling benefit.

¶ 29. “Ordinarily, when a complaint is filed and properly served, that complaint tolls the running of the statute of limitations.” Price v. Clark, 21 So.3d 509, 521 (Miss.2009) (citing Owens v. Mai, 891 So.2d 220, 223 (Miss.2005)). We keep in mind that “[w]hile the filing of a complaint tolls the statute of limitations, if service is not made upon the defendant within 120 days as required by M.R.C.P. 4(h), the limitations period resumes running at the end of the 120 days.” Owens v. Mai, 891 So.2d 220, 223 (Miss.2005). However, when a party chooses voluntarily to dismiss the action, the complaint does not toll the running of the statute of limitations. Marshall, 7 So.3d at 213. In Koestler v. Mississippi Baptist Health Systems, Inc., 45 So.3d 280, 283 (Miss.2010), this Court again held that “[t]he filing of a complaint does not toll the statute of limitations when the plaintiff voluntarily dismisses the suit.”

¶ 30. McLemore voluntarily dismissed his August 31, 2004, complaint on December 28, 2004. Because McLemore voluntarily dismissed the August 2004 complaint, his cause of action was not tolled. McLemore filed his next complaint, which was not served, on November 14, 2005. Assuming that the November 2005 complaint was filed and served on a Defendant, the complaint still was filed outside the three-year statute of limitations which began to run on September 3, 2002, and ended September 3, 2005. The March 2006 amended complaint that was filed and served on the Defendants, likewise, has no bearing on the analysis of this case because it also was filed outside the three-year limitations period.

CONCLUSION

¶ 31. The judgment of the Circuit Court of Copiah County enforcing the jury verdict is reversed and rendered. McLemore failed to file his cause of action within the applicable statute of limitations, and his voluntary dismissal of the August 2004 complaint provided no tolling for his action.

¶ 32. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR.

KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

KITCHENS, Justice,

dissenting:

¶ 33. For the reasons stated in my dissenting opinion in Angle v. Koppers, 42 So.3d 1, 9-10 (Miss.2010) (Kitchens, J., dissenting), I respectfully disagree with the majority’s holding that the statute of limitations begins to run upon the discovery of the injury rather than upon one’s discovery that he or she has a cause of action. However, even if I were to accept that the statute of limitations begins to run on the date of the injury, I still would disagree with today’s holding. The jury unanimously found that McLemore could not have discovered his injury until October of 2005. Because the majority substitutes its judgment for that of the jury, and because I find no reversible error, I would affirm the judgment, and I respectfully dissent.

¶ 34. This Court repeatedly has held that “the statute of limitations commences upon discovery of an injury, and discovery is an issue of fact to be decided by a jury when there is a genuine dispute.” Donald v. Amoco Prod. Co., 735 So.2d 161, 167 (Miss.1999). See also, e.g., Weathers v. Metro. Life Ins. Co., 14 So.3d 688, 692 (Miss.2009) (quoting same); Fletcher v. Lyles, 999 So.2d 1271, 1277 (Miss.2009) (quoting same). Only if “reasonable minds could not differ as to the conclusion” may the question be decided by the courts. Stringer v. Trapp, 30 So.3d 339, 342 (Miss.2010) (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986)). In the present case, the jury was asked “[o]n what date do you find by a preponderance of the evidence that the plaintiff discovered, or by reasonable diligence should have discovered, his claimed neurological injury, manganism?” The jury unanimously responded “10/05,” that is, October of 2005. Thus, based on the jury’s finding of fact, the plaintiff had filed his action roughly one month after discovering his injury, well within the three-year statute of limitations.

¶ 35. Today’s opinion further limits this Court’s precedent by holding that one need not know the nature of his or her injury, only that there is some type of injury. This holding is contrary to prior cases in which we have held that discovery of an injury cannot begin until one has been diagnosed. See Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990) (statute of limitations began to run on date of medical diagnosis); Schiro v. Am. Tobacco Co., 611 So.2d 962, 963-64 (Miss.1992) (statute of limitations began to run when plaintiff discovered cancer, even though she had a lengthy history of other, related health problems). Indeed, even in Angle, 42 So.3d at 7, despite the plaintiffs fifteen-year history of related health problems and other diagnoses, this Court held that the plaintiffs “cause of action accrued at the latest in 2001, the date she was last diagnosed with an injury or disease.” (Emphasis added.)

1136. In the present case, the jury was properly instructed on the discovery issue and found that McLemore could not have discovered his injury until October 2005. Because this question of fact was decided by the jury and that determination was not contrary to the weight of the evidence, we should not set aside the jury’s decision, a decision which is afforded “great deference.” Johnson v. St. Dominics-Jackson Mem’l Hosp., 967 So.2d 20, 23 (Miss.2007). As I find no reversible error, I would affirm the judgment.

GRAVES, P.J., JOINS THIS OPINION.

      . There is some dispute between the parties concerning who informed McLemore that he had manganism and when that diagnosis was given to McLemore. The general date proposed by McLemore is October 2005.

      . McLemore also filed a suit in February 2004. The Defendants take no issue with the February complaint and begin their tolling discussion with the August 31, 2004, complaint.