author: SAUNDERS, Judge.

text:
    CIMAREX ENERGY CO., et al. v. Katherine D. MAUBOULES, et al.
    No. CA 2008-452.
    Court of Appeal of Louisiana, Third Circuit.
    March 11, 2009.
    Rehearing Denied April 29, 2009.

      Kerry Alan Kilburn, Kilburn Law Firm, Houston, TX, for Intervenor Appellee, Orange River Royalties, LLP, Coyote Ventures, Ltd., Mission Royalty Income 2002-A, LP.
    Homer Edward Barousse, Jr., Barousse & Craton, Crowley, LA, for Defendant Ap-pellee, Florence Mauboules.
    Don Ray Beard, Attorney at Law, St. Baton Rouge, LA, for Plaintiff Appellant, Cimarex Energy Co. Ceniarth, Ltd.
    Robert L. Cabes, Milling, Benson, et al., Lafayette, LA, for Defendant Appellant, Palace Exploration Co.
    William Howard Collier, Ringuet, Daniels & Collier, Lafayette, LA, for Interve-nor Appellee, Mission Royalty Income 2002-A, LP, Orange River Royalties, LLP Coyote Ventures, Ltd.
    Margaret D. Swords, Longman Russo, Lafayette, LA, for Defendant Appellee, Patrick and Kathy Mauboules.
    John Weir Grant, Attorney at Law, Lafayette, LA, for Defendant Appellee, Miocene Oil & Gas, Inc.
    Francis X. Neuner, Jr., Laborde & Neuner, Lafayette, LA, for Intervenor Ap-pellee, Orange River Royalties, LLP.
    Joe Barrelle Norman, Liskow & Lewis, New Orleans, LA, for Plaintiff Appellant, Ceniarth, Ltd. Cimarex Energy Co.
    Randall Charles Songy, Onebane Law Firm, Lafayette, LA, for Other, Louisiana Oil and Gas Association.

      George Jeanmard Tate, Attorney at Law, Abbeville, LA, for Defendant Appellant, Zeneco, Inc.
    Steven Bernard Rabalais, Rabalais, Hanna, Lafayette, LA, for Defendant Ap-pellee, Essex Royalty Joint Venture II.
    Cheryl Moliere Kornick, Attorney at Law, New Orleans, LA, for Plaintiff Appellant, Ceniarth, Ltd. Cimarex Energy Co.
    J. Clemille Simon, Attorney at Law, Lafayette, LA, for, Intervenor Appellee, Er-eunaco Oil.
    Barry Louis Domingue, Simon Law Offices, Lafayette, LA, for Intervenor Appel-lee, Ereunaco Oil.
    Michael Howard Landry, Attorney at Law, Crowley, LA, for Defendant Appel-lee, Jack W. Larimer, Cimarex Energy Co., Floyd Trahan, Valerie Mocek Trahan.
    Kyle M. Bacon, Longman Russo, Lafayette, LA, for Defendant Appellee, Patrick and Kathy Mauboules.
    Matthew R. Lynch, Milling, Benson, Woodward, Lafayette, LA, for Defendant Appellant, Palace Exploration Co.
    Jed Mestayer, Laborde & Neuner, Lafayette, LA, for Intervenor Appellee, Orange River Royalties, LLP.
    Collette Ross Gordon, Liskow & Lewis, PLC, New Orleans, LA, for Plaintiff Appellant, Cimarex Energy Co. Ceniarth, Ltd.
    Diversified Energy Investments, Jack W. Larimer.
    John Michael Gottesman, Essex Royalty Joint Venture II.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

11 FACTS AND PROCEDURAL HISTORY:

This appeal arises from an Amended Final Judgment by the Fifteenth Judicial District Court, in which the trial court found that Appellants (hereinafter collectively referred to as “Cimarex”) brought a concursus proceeding, under La.Code Civ.P. art. 4658, without having a legitimate basis to do so, thereby unreasonably withholding royalty payments from Appel-lees (hereinafter collectively referred to as “Orange River”). A review of the facts leading up to this appeal is instructive.

In 1997, Katherine Daigle Mauboules and other members of her family sold royalty interests in their land to Ereunao Oil & Gas, Inc. (hereinafter “Ereunao”). This royalty deed contained an “Off Tract Production Clause” that would later become the source of Mauboules’ assertion that she might be entitled to the royalty interests she had sold to Ereunao. Years after Ereunao’s purchase of royalty interest from Mauboules, Orange River made three different purchases of royalty interests from Ereunao’s assignees, Lawrence and Lorena Brock, in April 2004, August 2004, and February 2005.

Meanwhile, during February of 2003, Ci-marex acquired a mineral lease from Ma-boules and drilled a well, which began production in January 2004. The Cimarex lease agreement had been reached after a year of unsuccessful negotiations with Mauboules and only after the addition of three key provisions: |⅞(1) Cimarex would pay Kenneth Privat (hereinafter “Privat”), Maboules’ attorney, $7,500.00 in legal fees to offset future legal expenses incurred by filing suit against a royalty purchaser known as Ereunao Oil & Gas, Inc. et al.; (2) Cimarex would place the royalties in suspense until the suit against Ereunao was over; and (3) Cimarex would pay Ma-boules $75,000.00 if (a) her lawsuit against Ereunao was unsuccessful and (b) a successful well was drilled and the well reached 150% payout.

On March 26, 2004, Privat sent Cimarex a letter, claiming that Ereunao’s royalty interest had prescribed. In a follow-up phone conversation, Privat spoke to Cima-rex attorneys and asserted that a clause in the Maboules-Ereunao deed might have been procured by fraud. On June 9, 2004, Cimarex advised Orange River that Cima-rex would be suspending Orange River’s royalty payments. Later, on November 16, 2004, Orange River’s attorney, Kerry Kilburn (hereinafter “Kilburn”) made written demand for payment. In his letter, Mr. Kilburn noted that Orange River is a, “good faith purchase[r] relying on the public record for the validity of [its] title and there can be no reasonable claim against [Orange River] by the Mauboules Family members.” On December 20, 2004, a little over a month after Orange River’s demand, Cimarex filed the concursus proceeding which forms the central focus of this appeal.

In that proceeding, the trial court made a factual finding that Cimarex had no legitimate basis on which to file a concursus and rendered judgment, awarding damages to Orange River. Cimarex appeals, asserting five assignments of error.

ASSIGNMENTS OF ERROR:

1. Must a stakeholder in a concursus proceeding have a legitimate basis to bring the concursus proceeding?
| o2. Does La.Code Civ.P. art. 4658 provide stakeholders in a concursus with absolute immunity from liability related to alleged nonpayment of funds deposited into the registry of the court?
3. Did the trial court correctly calculate “double” damages for purposes of Mineral Code Article 212.23(C)?
4. Did the trial court correctly calculate the date from which judicial interest became due on statutory damages awarded pursuant to Mineral Code Article 212.23(C)?
5. Must a royalty owner provide notice to the working interest owner before the royalty owner may seek a judicial award of penalties under Mineral Code Article 212.23?

ASSIGNMENT OF ERROR # 1:

Cimarex asserts that Mauboules’ claim against Ereunao was sufficient to form the legitimate basis of a concursus proceeding, which would prevent Orange River from receiving its royalty payments timely. We disagree.

“The purpose of a concursus proceeding is equitable in nature, meaning to protect a person finding himself in possession of money which is not his from having to referee the rights of rival claimants and risk paying same to the wrong party.” Bank of Sunset & Trust Co. v. A.J. Charlot, 614 So.2d 1386, 1388 (citing Transo Investment Corporation v. Oakley, 37 So.2d 560 (La.App. 2 Cir.1948). Furthermore, concursus proceedings developed “in order to curtail lengthy, vexatious and expensive litigations.” Leon Sarpy, Concursus: Interpleader in Louisiana, 35 Tul.L.Rev. (1961). For that reason, our supreme court has encouraged the institution of concursus proceedings, even when the competing claim is “an inchoate interest in ... royalties,” but only if the plaintiff “actually 14fear[s] that the payment [to another] might be hazardous.” Irion v. Standard Oil Co. of Louisiana, 199 La. 363, 371, 6 So.2d 143, 146 (1942) (emphasis added). The requirement of an actual concern exists, lest the concursus itself become “vexatious,” thereby re-creating the problem it was designed to remedy.

The trial court found that Cimarex failed to meet the minimum threshold for initiating a concursus proceeding. Cimarex’s concursus proceeding was orchestrated as a condition to Mauboules granting Cima-rex a mineral lease, rather than as a result of an actual concern about a competing claim.

This case is similar to another case involving a baseless concursus proceeding, that being Bank of Sunset & Trust Co. v. A.J. Charlot, 614 So.2d 1386 (La.App. 3 Cir.1993). In Bank of Sunset & Tj-ust Co., this court found that a bank presented with a foreign judgment that had not been made executory in Louisiana was not presented with a legal competing claim, but rather was confronted with “nothing more than a man off the street ... who said, I have a claim.... ” Id. at 1388. In that ease, we noted that “with a little cursory examination and investigation ... the bank would have alerted itself ... that ... the judgment ... [was] nothing more than a man off the street.” We then defined the “threshold element for the initiation of a concursus proceeding” to be “the existence of at least two persons who have competing or conflicting claims to money.” Id. at 1388-89.

Cimarex points out, in brief, that it was advised to institute the concursus by its attorney, an oil and gas lawyer with over thirty years experience practicing law. Cimarex asserts that their attorney had no way of “going behind” the Ma-boules’ claim to test its legitimacy. However, the record indicates that Cimarex did not advise its attorney of the special agreement with Mauboules, nor of the extensive history with Mauboules’ amorphous claim. The “clean hands doctrine” states: “He 5who comes into a court of equity must come with clean hands.”

This doctrine universally affects the entire administration of equity jurisprudence as a system of remedies and remedial rights.
It is likewise fundamental that equity imperatively demands of suitors in its courts fair dealing and righteous conduct with reference to the matters concerning which they seek relief. One who has resorted to injustice, unfairness and unrighteous dealing, which it is the purpose of courts of equity to suppress, will appeal in vain, even though in his wrongdoing he may have kept himself strictly within the law. Manifestly, under this maxim any act which would be condemned and pronounced wrongful by honest and fair-minded men must be held sufficient to make the hands of one who seeks equity unclean.

City of New Orleans v. Levy, 233 La. 844, 864, 98 So.2d 210, 218 (1957). Cimarex may have sought to keep itself “strictly within the law” by seeking an attorney’s opinion which would advise the filing of concursus proceedings. However, Cima-rex cannot expect to shield itself with an attorney’s opinion made with incomplete information.

Cimarex repeatedly argues in brief that the possibility that a claim may be asserted against it by Mauboules justifies non-payment. Nowhere does Cimarex suggest how the Mauboules’ assertion could present a claim that would challenge, much less defeat, Orange River’s royalty interest and the public records doctrine. Cimarex argues that Louisiana has a strong concursus doctrine. This is true. It is also true that Louisiana has a strong public records doctrine.

The public records doctrine and its basic principles of recordation are set forth in La.Civ.Code art. 3338 and 3342, “which protect third persons from the |fieffect of unrecorded instruments affecting real estate and attempts to vary the terms or statements of fact in recorded instruments.” 1 Peter S. Title, Louisiana Real Estate Transactions § 8:26 (2d ed.2008). A cursory examination of the information already in Cimarex’s possession would have shown that any claim by Mauboules would not affect Orange River’s royalty interests because Orange River was a third party which relied on the public records and acquired “an interest in an immovable [and] is [therefore] protected from the effects of the nullity or dissolution of a contract that adversely affects [its] interest.” Id. By contacting Cimarex with claims of possible fraud and prescription against Ereunao, Mauboules, through her attorney, Privat, was attempting to do precisely that which La.Civ.Code art. 3342 prohibits. Louisiana Civil Code Article 3342 specifically says,

A party to a recorded instrument may not contradict the terms of the instrument or statements of fact it contains to the prejudice of a third person who after its recordation acquires an interest in or over the immovable to which the instrument relates.

It follows that in order to justify its defense, Cimarex must advance a reasonable basis to fear that payment to Orange River would not be protected by the public records doctrine. We have searched the voluminous record for such a theory of justification. We have found none. We asked for such justification at oral 17argument. None was forthcoming. If such a theory exists, it has not yet been brought to the attention of this court. The absence of such an explanation is fatal to the defense. Had Mauboules not sold her royalty interests and had it not been a matter of public record, the Mauboules claim, however weak and ill articulated, might have formed a reasonable basis for the concursus. However, that is not what has occurred, and it is not the situation presented to this court. This court must face the issue of whether any reasonable basis for non-payment to Orange River ever existed. We have found none.

Thus, even if Mauboules had an ironclad claim against Ereunao in terms of the agreement between those two parties, it would have had no effect, whatsoever, on Orange River. In order to file a valid concursus, Cimarex needed to show that Mauboules had a competing claim against Orange River. They make no attempt to do this. The Orange River claim is fully supported by the public records and the public records doctrine. Nowhere in the record before us does anyone make any assertion which could form a legal challenge to Orange River’s rights. While this leaves the possibility that the Mauboules may have a damage claim against Ereunao for fraud or something else, Mauboules has no claim for the money that is due Orange River. Mauboules, at best, indicates that she may make a claim of some sort against an ancestor in title. This cannot form the basis of a valid concursus in this case.

“Appellate courts review the trial court’s findings of fact under a ‘manifest error’ or ‘clearly wrong’ standard.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The trial court made a factual finding that Ci-marex failed to meet the threshold element required to institute a concursus. After reviewing the facts in the record, we find no manifest error in this instance.

1 .ASSIGNMENT OF ERROR # 2:

Cimarex asserts that the trial court erred in awarding Orange River damages pursuant to La.R.S. 31:212.23(0, because La.Code Civ.P. art. 4658 provides immunity to all who institute concursus proceedings. We disagree.

Louisiana Code of Civil Procedure Article 4658 provides:

With leave of court, the plaintiff may deposit into the registry of the court money which is claimed by the defendants, and which plaintiff admits is due one or more of the defendants.
When sums of money due one or more of the defendants accrue from time to time in the hands of the plaintiff after the institution of the proceeding, with leave of court he may deposit the money as it accrues into the registry of the court.
After the deposit of money into the registry of the court, the plaintiff is relieved of all liability to all of the defendants for the money so deposited, (emphasis added)

Yet, a party who institutes a concursus when it knows or should know that the claim he is presented with has no legal efficacy, at least in terms of a competing claim, cannot invoke the protection provided for in La.Code Civ.P. art. 4658, thus impairing the rights of a third party in good faith. To allow concursus to be abused in this way would make a mockery of the judicial system, undermine Louisiana’s public records doctrine, and affect the stability of contracts made in this state.

As decided by this court in Bank of Sunset & Trust Co., 614 So.2d 1386, where the plaintiff fails to meet the threshold for initiating a concursus proceeding, damages may be awarded, and the immunity provided for in La.Code Civ.P. art. 4658 is not available. In Bank of Sunset & Trust Co., we awarded damages for the frivolous appeal of a trial court’s dismissal of a baseless concursus. Likewise, we feel it would be appropriate here to give full meaning to the statutory remedy | .¡provided for in the Mineral Code La.R.S. 31:212.23(C).

Louisiana Revised Statutes 31:212.23(C) provides:

If the obligor fails to pay and fails to state a reasonable cause for failure to pay in response to the notice, the court may award as damages double the amount due, legal interest on that sum from the date due, and a reasonable attorney’s fee regardless of the cause for the original failure to pay.

Cimarex suspended royalty payments to Orange River on March 26, 2004, long before instituting the concursus and months before notifying Orange River of the suspension. The trial court made a factual finding that Cimarex (1) failed to make timely payments, (2) failed to pay in response to the notice of failure to pay, and (3) failed to state a reasonable cause for failure to pay. Because Cimarex could not state a reasonable cause for and withholding royalty payments from Orange River or for instituting a concursus proceeding, Cimarex is subject to damages as described above. Finding no manifest error in the trial court’s determination, we affirm the trial court’s ruling that damages should be awarded under La.R.S. 31:212.23(0.

ASSIGNMENT OF ERROR # 3:

Next, Cimarex challenges the trial court’s award of damages as being in excess of the amount contemplated by La. R.S. 31:212.23(C), which provides, in pertinent part, that “the court may award as damages double the amount due.... ” We find this challenge has no merit.

The royalties owed to Orange River are not damages but merely a sum of money that would be owed to Orange River in any event, as Orange River is the rightful owner of those royalty interests. The Mineral Code, as cited above, plainly | ^states that the court may award double the amount due as damages. Thus, the obligor, in addition to owing the unpaid royalties, would pay an additional sum as damages to the obligee. This method of calculation was affirmed in Wegman v. Central Transmission, Inc., 499 So.2d 436 (La.App. 2 Cir.1986), when the Second Circuit Court of Appeal of Louisiana noted that the trial judge was correct in “doubling the damages and adding that sum to the amount of royalties due.” Id. at 451. Accordingly, we affirm the trial court’s calculation of damages.

ASSIGNMENT OF ERROR # 4:

Cimarex asserts the trial court erred in finding that interest on the damages awarded under La. R.S. 31:212.23(C) began to accrue from the date of judicial demand, rather than from the date of judgment. We disagree.

Cimarex argues that the trial court’s decision was contrary to law. It cites minimal authority for its position, namely Wegman, 499 So.2d 436, and DeLaughter v. Borden Co., 431 F.2d 1354 (5 Cir.1970). In Wegman, our second circuit did not speak to the date of when interest on statutory damages begins to accrue, it merely upheld the lower court’s judgment awarding damages in that case. Thus, Cimarex’s reliance on Wegman is unfounded.

In DeLaughter, the U.S. Fifth Circuit recognized that interest was not necessarily owed on the trebled portion of a judgment in that particular case under La.R.S. 13:4203. Like Wegman, the DeLaughter court did not speak to the point in time at which interest begins to accrue on statutory damages awarded. As such, as with Wegman, Cimarex’s reliance on DeLaughter is misguided.

We do note that there are instances where interest on statutory damages does not begin to accrue until the date of judgment. For example, see Sharbono v. Steve Lang & Son Loggers, 97-110 (La.7/1/97), 696 So.2d 1382, where our 1 nisupreme court discussed interest on statutory penalties awarded in the workers’ compensation setting.

The case before us is in a different setting than that of workers’ compensation. Here, we are dealing with statutory damages awarded when a party breaches a contract. Cimarex, as an obligor, failed to pay its obligee timely. Generally, “[i]n contract law, the right to damages for delay accrues on the day of the demand.” Franco Ferrari, Comparative Ruminations on the Foreseeability of Damages in Contract 53 La. L.Rev. 1257, 1260 (1993).

In French law, this principle has resulted in the imposition of the mise en demeure, or formal “putting in default” of the obligor, as a necessary prerequisite to the recovery of damages and interest for any alleged delays in performance. The same concept appears in La.Civ.Code art. 1989, which provides that, “damages for delay in the performance of an obligation are owed from the time the obligor is put in default.”

Nancy Scott Degan & Kent Andrew Lambert, A Practical Guide to Commercial Damages in Louisiana, 44 Loy. L.Rev. 257, 260 (1998). The drafters of Louisiana’s Mineral Code incorporated the concept of putting the obligor in default by making written notice of failure to pay a prerequisite to receiving damages in La. R.S. 31:212.21, which states:

If the owner of a mineral production payment or a royalty owner other than a mineral lessor seeks relief for the failure of a mineral lessee to make timely or proper payment of royalties or the production payment, he must give his obli-gor written notice of such failure as a prerequisite to a judicial demand for damages.

We find the requirement of written notice instructive in interpreting the award of interest on damages under La.R.S. 31:212.23(C), which states that the court may award “legal interest on [damages] from the date due.... ”

|12In accordance with the principles of law cited above, we find that the “date due” for damages for delayed performance is the date of written demand. In making this decision, we recognize that “[p]rejudgment interest, even when available, is likewise unlikely to fully compensate the aggrieved litigant for deprivation of capital or resources over the tenure of protracted commercial litigation.” Nancy Scott Degan & Kent Andrew Lambert, A Practical Guide to Commercial Damages in Louisiana, 44 Loy. L.Rev. 257, 260 (1998).

Given the above, we find that the assignment raised by Cimarex is without merit. Further, while we did find that the interest on the statutory damages could have potentially begun to accrue from the date of written demand rather than the date of judicial demand, Orange River did not appeal this issue. Therefore, as this court can only adjudicate issues before it, we merely uphold the trial court’s award of interest as accruing on the awarded statutory damages from the date of judicial demand.

ASSIGNMENT OF ERROR # 5:

Finally, Cimarex asks this court to dismiss the trial court’s award of damages to the Miocene Group, due to Miocene’s failure to give written notice of failure to pay royalties before making judicial demand. This court takes notice of the fact that all members of the Miocene Group, save Essex Royalty Joint Venture, II (hereinafter “Essex”), have settled out of court.

La.R.S. 31:212.21 clearly requires a royalty owner other than the mineral lessor to “give his obligor written notice of such failure [to pay royalties] as a prerequisite to a judicial demand for damages.” We find that Essex did give proper notice to its obligor, as required by the Mineral Code in La.R.S. 31:212.21, when Essex’s attorney, John Grant, emailed Cimarex on July 23, 2004, urging them to 112forego the filing of a concursus and “instead distribute the royalty to the rightful owners.” We find such notice sufficient to meet the requirements of the Mineral Code. The trial court’s award of damages to Essex is hereby affirmed.

ANCILLARY ISSUE # 1:

Two defendants in reconvention, Zeneco, Inc. (hereinafter “Zeneco”) and Palace Exploration Company (hereinafter “Palace”), assert that they should not be included in the trial court’s judgment, since there was no “independent negligence” on their part and, furthermore, there is no privity of contract between them and Orange River. We disagree, finding that non-lessor mineral royalty owners have a cause of action against lessees and sublessees for non-payment of royalties.

The Mineral Code clearly contemplates a situation in which someone, other than the lessor, might seek payment of royalties from a lessee. La.R.S. 81:212.21. Though Palace and Zeneco are sublessees and not lessees, the Mineral Code has also resolved privity of contract issues concerning sublessees. In the past, Louisiana jurisprudence held that there was no privity of contract between sublessees or assignees and the original lessor. See Berman v. Brown, 224 La. 619, 70 So.2d 433 (1953); Broussard v. Hassie Hunt Trust, 231 La. 474, 91 So.2d 762 (1956). However, “[w]ith the adoption of the Mineral Code in 1975, a prime lessor is now allowed to demand performance of the sublessee directly.” Angela Jeanne Crowder, Take-or-Pay Payments and Settlements-Does the Landowner Share?, 49 La. L.Rev. 921, 926 (1989). Louisiana Revised Statutes 31:128 states:

To the extent of the interest acquired, an assignee or sublessee acquires the rights and powers of the lessee and becomes responsible directly to the original lessor for performance of the lessee’s obligations.

Palace and Zeneco are sublessees of Cimarex because Cimarex retained some interest in the lease contract. Palace took only a twenty-five (25%) percent interest in the lease, and Zeneco took a one point two five (1.25%) percent interest. “Under the sublease, the sublessee expressly contracts to assume certain obligations under the lease, including the payment of royalties.... Therefore, the lessor has a right of action against [the subles-see] directly if royalties are not paid when due.” Angela Jeanne Crowder, Take-or-Pay Payments and Settlements — Does the Landowner Share?, 49 La. L.Rev. 921, 926 (1989). In this case, the lessor does not own the mineral rights, as contemplated by the statute above. However, just as the sublessee would, to the extent of interest acquired, be responsible to the lessor, he is likewise responsible to assignees of the lessor’s mineral royalty interests. The mineral royalty owner is simply a subsequent obligee or “creditor” of the subles-see. Palace and Zeneco were put on notice by the |1spublic records, in which Orange River’s mineral royalty interest was duly filed for record, that Orange River was the rightful owner of the mineral royalties at issue.

In addition, the Louisiana Code of Civil Procedure provides that a mineral royalty owner may pursue action in his own right. Louisiana Code of Civil Procedure Article 3664 states that “[t]he owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.” Therefore, even without being party to the lease giving rise to mineral royalty payments, mineral royalty owners may protect their rights.

ANCILLARY ISSUE # 2:

Zeneco argues that the trial court erred in calculating the extent of Zeneco’s interest in Cimarex’s mineral lease as five (5%) percent. Zeneco points out that it only has a five (5%) percent interest in Palace’s twenty-five (25%) percent interest in Ci-marex’s mineral lease. Thus, Zeneco should only be held responsible for 1.25% of the judgment. We agree, finding that this assertion has merits based on the facts in the record. We hereby amend the judgment of the trial court accordingly.

ORANGE RIVER APPEAL:

Orange River, in its reply brief, appeals the trial court’s denial of consequential damages for Orange River’s inability to sell its royalty interests during the concur-sus proceedings brought by Cimarex. We find no merit in this appeal.

“When a judgment is silent as to part of the relief requested, the judgment is deemed to have denied that relief.” Duhon v. Lafayette Consol. Govt., 05-657, p. 11 (La.App. 3 Cir. 12/30/05), 918 So.2d 1114, 1120, citing Guaranty Bank and Trust Co. of Alexandria, La. v. Carter, 394 So.2d 701 (La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981). Whether to award consequential damages for loss of profits due to missed sales is reviewed by the manifestly erroneous standard of review. Evangeline Farmers Cooperative v. Fontenot, 565 So.2d 1040 (La.App. 3 Cir.1990).

In the case before us, the trial court awarded Orange River considerable statutory damages. Thus, it follows that should the trial court have felt it necessary to award consequential damages to Orange River, it would have awarded those damages. Given the discretion given to the finder of fact in awarding damages and, further, the amount of damages already awarded by the trial court to Orange River in the form statutory damages that are double the damages due. We find no error in the trial court’s decision to deny Orange River the consequential damages it claims to have lost due to missed sales of royalty interests. Therefore, we affirm the trial court’s judgment in this regard.

CONCLUSION:

We amend the trial court’s judgment with respect to Zeneeo’s percent interest in the Cimarex mineral lease and affirm in all other respects. Costs of this appeal are to be paid by Appellants.

AFFIRMED AS AMENDED.

      . Appellants-Defendants in Reconvention are: Cimarex Energy Co., Ceniarth, Ltd., Palace Exploration Company and Zeneco, Inc. (f/k/a RZ, Inc. of Oklahoma).

      . Appellees-Plaintiffs in Reconvention are: Orange River Royalties, LLP; Mission Royalty Income 2002-A, L.P.; MRHC, LLC; Charles P. Torrey, Jr.; Royalty Quest, LLC; Forst Worth Operating Company, L.L.C.; Richard Martter; Coyote Ventures, LTD, and Essex Royalty Joint Venture, II.

      . Louisiana Civil Code Article 3338—
      The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
      (1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
      (2) The lease of an immovable.
      (3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.
      (4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

      . The Louisiana Supreme Court, in Brown v. Sugar Creek Syndicate, 195 La. 865, 892, 197 So. 583, 592 (1940), noted that, "royalty owners who acquired their rights on the faith of the public records ... are obviously protected [from claims of landowners that recorded agreement was invalid].”

      . Orange River gave Cimarex written notice of failure to pay on November 16, 2004.

        . In CLK Co., L.L.C. v. CXY Energy, Inc., 07-834 (La.App. 3 Cir. 12/19/07), 972 So.2d 1280, this court found that letters requesting acknowledgment of assignment of royalty interest, but not demanding payment of royalties were insufficient and did not meet the statutory requirement of notice in La. R.S. 31:212.21. Appellees in that case were not entitled to recover double damages under Louisiana's Mineral Code.

      . Other cases have already recognized that non-lessor mineral royalty holders may have a cause of action against lessees for non-payment or improper payment of royalties, following the assignment by lessor of mineral royalty interests to others. Hanks v. Wilson, 93-554 (La.App. 1 Cir. 3/11/94), 633 So.2d 1345.

      . Louisiana Revised Statutes 31:212.21 — If the owner of a mineral production payment or a royalty owner other than a mineral lessor seeks relief for the failure of a mineral lessee to make timely or proper payment of royalties or the production payment, he must give his obligor written notice of such failure as a prerequisite to a judicial demand for damages.

      . "The cases are clear that where the lessee retains some interest in the lease, the contract is one of sublease.” Brown v. Mayfield, 488 So.2d 322, 324 (La.App. 3 Cir. 1986).

      . “Under the Mineral Code, as well as under the Civil Code, 'mineral rights' form a component part of the ownership of land, that is, the right to search for and reduce minerals to possession belongs to the owner of the ground ,.. The mineral rights, however, are separable components of the ownership of land: the owner of the ground may segregate the mineral rights from the ownership of land and either retain them himself or convey them to another person.” A.N. Yiannopoulos, Personal Servitudes § 63 (4th ed.2008).


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Robert VEROLINE, Jr. et al. v. PRIORITY ONE EMS, et al.
    No. 08-871.
    Court of Appeal of Louisiana, Third Circuit.
    March 25, 2009.
    Rehearing Denied April 22, 2009.
    James A. Bolen, Jr., Alexandria, LA, for Appellees.
    Leslie R. Leavoy, Jr., Deridder, LA, for Appellant.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

Heather Marie Veroline, the twenty-one year old sister of plaintiff Joshua Paul Veroline, injured her knee while on a family outing at Toledo Bend Lake on July 4, 2005. Joshua was present when his sister injured her knee. An ambulance was summoned to the scene and Heather, in obvious pain, was placed in the ambulance for transportation to a nearby hospital. Joshua was present as his sister was placed in the ambulance accompanied by her mother. As the ambulance proceeded to a local hospital Joshua followed but stopped along the way. While stopped on the roadside Joshua observed the ambulance pass him traveling very fast with its lights on which he explained signaled a turn for the worse in his sister’s condition. Joshua proceeded with haste to the hospital arriving moments after the ambulance, at which time he learned his sister was in the emergency room. Heather Veroline died moments later without Joshua ever seeing her alive again. Joshua filed a petition for damages which was amended three times. In his last amended petition Joshua alleges he is entitled to damages for emotional distress as a result of defendants’ negligent treatment of his sister. Joshua alleged that his sister died as a result of negligent care administered by the employees of defendant during the time she was in their- care in the ambulance.

The trial court granted defendants’ Motion To Dismiss finding 1) Joshua failed to allege sufficient facts to state a cause of action under La. Civil Code art. 2815.6 and finding 2) the allegation (made at the hearing) that Joshua’s observation of the ambulance speeding by with lights and sirens, and his presumption that something had gone wrong, did not entitle him to recovery under Article 2315.6. The trial court reasoned that under the Supreme Court’s decision in Trahan v. Mc Manus, 728 So.2d 273 (La.1999) there was no “temporal proximity between the tortious event, the victim’s observable harm, and the plaintiffs mental distress arising from an awareness of the harm caused by the event.” Joshua appeals that decision.

ANALYSIS

The facts of this tragic event present a unique scenario under the jurisprudence and codified law regarding a bystander claim under La. Civ.Code art. 2315.6. It is undisputed that Heather Marie Veroline did not die as a result of the knee injury first observed by her brother, Joshua Paul Veroline. In considering the events which transpired thereafter, and the merits of defendant’s Exception of No Cause of Action, we must treat as true all well-pled allegations of fact found in the pleadings. Joshua alleged he observed the ambulance switch to an emergency mode en route to the hospital. Joshua admits he did not observe a particular act of negligence, but that he came upon the event immediately after it happened and observed the result of the event, i.e. his dead sister, immediately thereafter.

La. Civil Code article 2315.6 provides:

“The following persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person’s injury:” (Emphasis added). La. Civil Code art. 2315.6.

In Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990) our state Supreme Court first addressed the right of bystanders to recover for emotional distress. In articulating the guidelines for determining the basis of such recovery in Louisiana, the Supreme Court stated:

“A claimant need not be physically injured, nor suffer physical impact in the same accident in order to be awarded mental pain and anguish damages arising out of injury to another. Nor need he be in the zone of danger to which the directly injured party is exposed. He must, however, either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has | «occurred in the victim’s condition.” (Emphasis added). Lejeune, 556 So.2d at 570.

In holding that Mrs. LeJeune, the plaintiff in that case, was indeed entitled to damages despite the fact that she had not seen the rats eating on her comatose husband’s face, the Supreme Court reasoned that Mrs. LeJeune had come upon the scene of injury to her husband before any substantial change had occurred and therefore was entitled to recovery.

We have visited issues involving a bystander’s right to recover on many occasions since the Lejeune holding. In Guillot v. Doe, 2003-1754, (La.App. 3 Cir. 6/30/04), 879 So.2d 374, this court stated: “Bystander damages are available when serious emotional distress arises directly and immediately from the claimant’s observation of a traumatic injury causing event to the direct victim or from the observation of the aftermath of the traumatic injury-causing event soon thereafter.” Guillot, 879 So.2d at 383 (Emphasis added). To recover the bystander must prove: 1) he came upon the scene soon after the injury-causing event; 2) he is a member of the class of relatives permitted recovery; 3) the injured person suffered such harm that one can reasonably expect someone in the injured bystander’s position to suffer serious emotional distress from the experience; and 4) the bystander’s emotional distress must be severe, debilitating and foreseeable.

Joshua’s petition and amended petitions set forth that 1) he came upon the injury causing event soon after it occurred; 2) he is the brother of the deceased person and therefore is within the class of relatives permitted recovery; 3) the injured person suffered and died as a direct result of the negligence of the defendants and he observed his sister’s dead body shortly thereafter; and 4) he suffered serious emotional distress as a consequence which was foreseeable. To prevail ultimately, plaintiff must prove at trial that his emotional injury was severe and debilitating. The [ ¿trial judge dismissed Joshua’s Petition For Damages concluding that Joshua is not entitled to bystander damages because he was not in the ambulance when the alleged injury-causing event occurred. Neither the Civil Code nor the jurisprudence require that the bystander actually observe the injury-causing event. To the contrary, it is enough that the bystander claimant come upon the scene immediately after the injury causing event. Joshua clearly alleges he came upon the scene immediately after the alleged injury causing event and observed his deceased sister. Joshua was present when the ambulance arrived at Toledo Bend, present when his sister was placed in the ambulance, present en route to the hospital and present within moments of his sister’s death in the emergency room. Joshua clearly had temporal proximity between the tortious event and the victim’s observable harm, i.e. her death. It is reasonable to expect that plaintiff may have suffered emotional distress arising from an awareness of the harm caused by the event. We are satisfied Joshua’s petition states a cause of action for recovery of damages under La. Civil Code art. 2315.6. The trial court erred as a matter of law in granting defendants’ Exception of No Cause of Action.

DECREE

Reversed and remanded for farther proceedings. Costs of appeal are assessed against Appellee.

REVERSED AND REMANDED.

      . We note that under the provisions of La. Code Civ. P. Art. 931 the trial court in considering the Exception of No Cause of Action should have considered only the petition and amendments and should not have considered any evidence submitted by affidavit or otherwise.


author: GENOVESE, Judge. SAUNDERS, J., GREMILLION, Judge,

text:
    James Michael McMILLIN v. Jennifer Barkdull McMILLIN.
    No. 2008-502.
    Court of Appeal of Louisiana, Third Circuit.
    March 25, 2009.

      Madaline Cross Gibbs, Watson, McMillin & Harrison, L.L.P., St. Joseph, Louisiana, for Plaintiffs/Appellees, James Michael McMillin, Sr. and Mabelene Sigens McMil-lin.
    Sherri Lynn Gregoire, Avant & Falcon, Baton Rouge, Louisiana, for Defendant/Appellant, Jennifer Barkdull McMil-lin (Brashier).
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

Lin this grandparent visitation and related contempt case, the mother appeals the trial court’s judgment awarding grandparent visitation rights and finding the mother in contempt of court for wilful disobedience of a prior court order of visitation. The mother appeals. We affirm in part, as amended, reverse in part, and render judgment.

FACTS

James Michael McMillin (James) and Jennifer Barkdull (Jennifer) were married on May 10, 2003. On March 30, 2004, one child, Emily, was born of the marriage. The parties were divorced on April 5, 2005. A joint custody implementation order was entered into by the parties and attached to their divorce decree. In accordance therewith, joint custody was awarded, and Jennifer was granted the primary physical custody of Emily, subject to a specific visitation schedule in favor of James.

After experiencing difficulties with regard to visitation and child support, James filed a Rule for Contempt and Change in Physical Custody on November 15, 2005. While this rule was pending, James met an untimely death on August 5, 2006.

On August 17, 2006, a Motion and Order to Substitute Party Plaintiffs was filed by James Michael McMillin, Sr., and Mabe-lene Sigens McMillin (the McMillins), parents of James and paternal grandparents of Emily, requesting visitation privileges with their granddaughter. On October 26, 2006, a Consent Judgment, approved by all counsel, was signed, establishing an agreed-upon grandparent visitation schedule. Though disputed by Jennifer, the McMillins contend that they have not been able to exercise the grandparent visitation privileges afforded them pursuant to the October 26, 2006 Consent Judgment. In the interim, Jennifer remarried, and her new husband, Jake Brashier, adopted Emily on April 16, 2007.

|20n April 18, 2007, the McMillins filed a Motion and Rule for Contempt, and, on May 3, 2007, Jennifer filed an Answer, Intervention[,] and Cross Rule which included an exception of no cause of action. All matters were heard by the trial court with testimony given on October 8, 2007. The matter was taken under advisement, and the trial court rendered judgment on January 9, 2008; (1) denying Jennifer’s exception of no cause of action; (2) affording the paternal grandparents (the McMil-lins) specified visitation privileges; (3) ordering Jennifer to inform Emily as to the existence of her biological father (James) within thirty days; and, (4) finding Jennifer in contempt of court and ordering her to pay a $500.00 fine and to serve three months in the parish prison, which was suspended provided she lawfully complied with all orders of court. Jennifer has appealed this judgment, presenting seven assignments of error.

ASSIGNMENTS OF ERROR

On appeal, Jennifer asserts the following seven assignments of error:

1. The trial court erred in failing to notice the failure of the [AJppellees to state a cause of action under La. R.S. 9:344 and by therefore denying the [ejxception of [n]o [cjause of [ajction;
2. The trial court erred in granting excessive visitation rights to [AJppel-lees under La.R.S. 9:344 and/or [La.Civ.Code] art. 136;
3. The trial court erred in failing to afford appropriate deference to Jennifer and Jake Brashier to determine when Emily should be told about her biological relationship to James Michael McMillin;
4. The trial court erred in ordering that the parties share the transportation for Emily’s visitation with [AJppellees;
5. The trial court erred in finding Jennifer Brashier in contempt of court;
6. The trial court erred in failing to specify the grounds for |,sfinding Jennifer Brashier in contempt; and,
7. [The trial court erred in flailing to make provisions for visitation where the visitation of the [AJppellees falls on/near a holiday.

Standard of Review

This court in Love v. E.L. Habetz Builders, Inc., 01-1675, pp. 3-4 (La.App. 3 Cir. 6/26/02), 821 So.2d 756, 760-61 (citations omitted), set forth the standard of review to be applied by an appellate court as follows:

It is well settled in Louisiana that findings of fact of the trial court will not be disturbed on appeal unless they are manifestly erroneous or clearly wrong. As long as the findings of the trial court are reasonable in light of the record, the appellate court may not reverse even if it would have weighed the evidence differently as a trier of fact.
On the other hand, when reviewing a question of law, the appellate court must simply decide whether the trial court was legally correct or incorrect. “If the trial court’s decision was based on its erroneous application of law, rather tha[n] on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court.” In fact, the appellate court must conduct a de novo review of the entire record when it finds a reversible error of law or manifest error.

Assignment of Error No. 1 (Exception of No Cause of Action)

Jennifer contends that the McMillins have failed to state a cause of action under La.R.S. 9:344, which reads as follows:

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during them minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or inear-cerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
|,tC. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.
D. If the parents of a minor child or children of the marriage are legally separated or living apart for a period of six months, the grandparents or siblings of the child or children may have reasonable visitation rights to the child or children during their minority, if the court in its discretion find that such visitation rights would be in the best interest of the child or children.

Jennifer is correct in her assertion that La.R.S. 9:344 is inapplicable. Louisiana Revised Statutes 9:344(A) specifically provides for grandparent visitation “[i]f one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage ...” and “the court in its discretion finds such visitation rights would be in the best interest of the child or children.” It is noteworthy that James was divorced at the time of his death and neither interdicted nor incarcerated. Therefore, being divorced prior to his death, James was not a party to the marriage; and, he was neither interdicted nor incarcerated at the time. Hence, La.R.S. 9:344 is inapplicable; the McMillins are not entitled to grandparent visitation under that particular statute; and, the trial court committed legal error in not granting Jennifer’s exception of no cause of action as to La.R.S. 9:344 only. See Stracener v. Joubert, 05-1121 (La.App. 3 Cir. 3/1/06), 924 So.2d 430. We, therefore, reverse the judgment of the trial court as to its denial of the exception of no cause of action only as it pertains to La. R.S. 9:344, and we sustain the exception of no cause of action only as it pertains to La.R.S. 9:344.

Though we find that La.R.S. 9:344 is inapplicable to the instant ease, we do find that La.Civ.Code art. 136 is applicable based on the facts in the record. Louisiana Civil Code Article 136 provides as follows:

| ,-,A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandpar-ent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
(1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
C. In the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.

In accordance with La.Civ.Code art. 136(B), under extraordinary circumstances, a relative by blood (in this case, paternal grandparents) “may be granted reasonable visitation rights if the court finds that it is in the best interest of the child.” Of the five favors set forth under La.Civ.Code art. 136(B), the trial court found factors one, two, four, and five to have been satisfied and favorable to the paternal grandparents. The trial court found factor number three to be inapplicable, considering the tender age of the child.

The record before us clearly indicates that the McMillins were afforded grandparent visitation by Consent Judgment after their son’s death, but before the subsequent adoption of Emily by Jennifer’s new husband. Therefore, it is clear that | f,the grandparents were exercising visitation privileges prior to the adoption. Though this court is well aware of the legal effects of an adoption, a subsequent adoption neither nullifies nor negates the provisions of La.Civ.Code art. 136(B), which is the last legislative pronouncement addressed to that issue. The Consent Judgment affording the McMillins grandparent visitation prior to the adoption certainly creates the extraordinary circumstance required under La.Civ.Code art. 136(B), and the facts in the record, including the testimony at trial, clearly establish that grandparent visitation (in this case, as opposed to no paternal grandparent visitation) is in the best interest of the child.

After full consideration of La.Civ.Code art. 136, the trial court found that the McMillins “should and must be awarded visitation.” We agree and find no manifest error or abuse of discretion in the factual determinations made by the trial court. We, therefore, affirm the trial court’s judgment awarding the McMillins grandparent visitation with Emily.

The trial court then set out specified visitation privileges to be afforded the McMillins. These visitation privileges will be addressed below in Jennifer’s assignments of error numbers two, four, and seven.

Assignments of Error Nos. 2, 4, and 7 (Grandparent Visitation)

We will address the second, fourth, and seventh assignments of error together, as these three assignments of error address the issue of the grandparent visitation set forth in the trial court’s judgment. Jennifer contends that the trial court granted excessive grandparent visitation rights, that the trial court erred in ordering the parties to share the transportation relative to implementing the grandparent visitation, and that the trial court failed to make provisions for visitation where the grandparent visitation would fall on or near a holiday.

17The trial court’s visitation schedule basically provides for grandparent visitation on the first and third weekends of each month from Friday at 6:00 p.m. until Sunday at 6:00 p.m. with each party meeting halfway between their respective domiciles and each party bearing their respective costs of transportation. The schedule also provides for grandparent visitation during the Christmas holidays and the summertime. We note that the visitation schedule set forth in the trial court’s judgment closely resembles the customary visitation privileges afforded a non-custodial parent in a divorce proceeding. Having-found that the grandparents are entitled to visitation pursuant to La.Civ.Code art. 136, we must now examine the trial court’s visitation schedule for reasonableness and excessiveness as argued by Jennifer in these assignments of error.

The term “reasonable visitation” is not particularly defined under our law. However, we noted in Ray v. Ray, 94-1478, p. 3 (La.App. 3 Cir. 5/3/95), 657 So.2d 171, 173, “[tjhrough [La.Civ.Code art. 136], the law provides a means of maintaining family relationships where they might otherwise be lost to the child.” In the instant case, La.Civ.Code art. 136 serves to ensure that Emily maintains contact with the parents of her deceased father.

Considering the tender age of the child, and the facts in the record of this case, we do not find such extensive grandparent visitation, as was awarded by the trial court, to be reasonable. This is especially true considering the recent jurisprudence underlining “the interest of parents in the care, custody, and control of their children ...” as explained in Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), and its progeny.

In recognizing this paramount right of a parent, we quote approvingly from Wood v. Wood, 02-860, p. 8 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 573, writ denied, 02-2514 (La.3/28/03), 840 So.2d 565, wherein the first circuit, considering visitation of a nonparent, and discussing Troxel, expressly recognized “a fit parent’s constitutionally protected fundamental right of privacy in child rearing, ...” and opined that a trial judge must “remember that any rights of nonparents are ancillary to that of a fit parent.” The appellate court cautioned that “the trial court must be aware that as nonparent visitation increases, the infringement and burden on the parent’s fundamental right of privacy in child rearing increases proportionally” and that “[visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. Reinhardt v. Reinhardt, 97-1889, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 80, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999).” Id. at 573.

The record in these proceedings indicates that Jennifer and the McMillins live approximately three hours apart from each other. Jennifer lives in Livingston, Louisiana; the McMillins live in Monterey, Louisiana. Jennifer is caring for three children. In addition to Emily, Jennifer and her new husband have an infant, and Jennifer has an eight-year-old child. Considering Jennifer’s financial resources and time constraints, other visitation set aside for maternal grandparents and grandparents via adoption, compounded by the expense and three-hour travel time necessary to implement the present paternal grandparent visitation schedule of two weekends a month, we find the trial court’s grandparent visitation schedule, in part, to be excessive, unreasonable, unduly burdensome, and manifestly erroneous.

Accordingly, we amend the trial eoui't’s visitation schedule to reduce the grandparent visitation from two weekends a month to one weekend a month. In order to implement said change, we delete from the visitation schedule the grandparent | visitation on the first weekend of each month. In doing so, this will allow Jennifer to have her children on more holidays and addresses her concerns in that regard. Grandparent visitation on the third weekend of each month remains intact. Regarding the issue of transportation, considering time constraints, safety factors, status, and station in life of the parties, we find the McMillins to be in a better position to provide transportation for the exercise of their visitation privileges. Therefore, we amend the trial court’s visitation schedule by requiring the McMillins to be solely responsible for transportation. All other aspects of the trial court’s judgment relative to grandparent visitation are affirmed and remain in full force and effect.

Assignment of Error No. 3 (Disclosure of Existence of Biological Father)

In the third assignment of error, Jennifer contends that the trial court erred in ordering her to tell Emily of the existence of her biological father. We agree. In following the mandates of Troxel, we find that Jennifer, the sole surviving biological parent, is the proper and appropriate person to make the determination, as she sees fit, as to when Emily should be told about her biological father. That is a parental decision, not a court decision. The trial court erred in ordering Jennifer to tell Emily of the existence of her biological father, and we reverse the trial court’s judgment in that regard.

Assignments of Error Nos. 5 and 6 (Contempt)

Because the fifth and sixth assignments of error both address the issue of contempt, we will address them together. Jennifer contends that the trial court erred in finding her in contempt of court and in failing to specify the grounds therefor. She does not contest her sentence. In Gautreau v. Gautreau, 97-612 (La.App. 3 Cir. 10/8/97) 702 So.2d 851, we held that there must be a reasonable basis in the record for a finding of contempt.

[ H)Louisiana Code of Civil Procedure Article 224(2) defines constructive contempt of court as a “[wjillful disobedience of any lawful judgment, order, mandate, writ or process of eourt[.]” The trial court made a specific finding of fact that Jennifer wilfully disobeyed its October 26, 2006 Consent Judgment. A review of the testimony in the record clearly indicates that the McMillins were denied their grandparent visitation on at least two occasions, specifically on March 9, 2007, and on March 23, 2007. There was a reasonable basis for the trial court finding Jennifer in contempt of court, and the trial court did not err in finding that Jennifer wilfully disobeyed the trial court’s October 26, 2006 Consent Judgment. The trial court is vested with great discretion in determining whether a person should be held in contempt of court for disobeying a court order, and the decision will be reversed only when the appellate court discerns an abuse of discretion. We find no such abuse of discretion by the trial court on the contempt issue in this case. See Mill Creek Homeowners Ass’n, Inc. v. Manuel, 04-1386 (La.App. 1 Cir. 6/10/05), 916 So.2d 271. Accordingly, we affirm the trial court’s judgment finding Jennifer in contempt of court. Since Jennifer did not assign as error her contempt sentence, we need not address same.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s denial of the exception of no cause of action filed by Jennifer Barkdull (Brashier) as it pertains to La.Civ.Code art. 136. We reverse the trial court’s denial of that exception as it pertains to La. R.S. 9:344 and sustain said exception only as it pertains to La.R.S. 9:344. We affirm in part the trial court’s judgment awarding grandparent visitation to James Michael McMillin, Sr., and Mabelene Sigens McMillin, but amend the judgment to reduce the grandparent visitation to one weekend (the third weekend) of every month with the |npaternal grandparents being solely responsible for the transportation necessary to implement their visitation. All other aspects of the trial court’s judgment relative to visitation shall remain in full force and effect. We reverse the trial court’s judgment requiring that the child, Emily (McMillin) Brashier, be told of the existence of her biological father, James Michael McMillin, Jr., and the nature of her relationship with the McMillins. Finally, we affirm the trial court’s judgment finding Jennifer Barkdull McMillin Brashier in contempt of court. All costs are equally divided among the parties.

AFFIRMED IN PART, AS AMENDED; REVERSED IN PART; AND RENDERED.

SAUNDERS, J., dissents and assigns reasons.

GREMILLION, J., concurs in part, dissents in part, and assigns reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

JQThe majority opinion agrees with Jennifer’s assertion that La.R.S. 9:344 is inapplicable, because it only allows for grandparent visitation “[i]f one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage.... ” After correctly analyzing La.R.S. 9:344 by noting that James Michale McMillin was divorced and not “party to a marriage,” the majority then goes on to assert that La.Civ.Code art. 136 is applicable, due to the “extraordinary circumstances,” of the case. This assertion is made, despite the fact that La.Civ. Code art. 136(C) specifically states, “ [i]n the event of a conflict between this Article and R.S. 9:344 or 345, the provisions of the statute shall supersede those of this Article.” Thus it would appear that, with or without an “extraordinary circumstance,” La.Civ.Code art. 136 cannot defeat the clear language of La.R.S. 9:344.

It is also clear that La.Civ.Code art. 136 cannot defeat the legal effects of a valid adoption. Louisiana Children’s Code Article 214(C), states in no uncertain terms, that:

... upon adoption: the blood parent or parents and all other blood relatives of the adopted person, except as provided by Ch.C. Article 1264, are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person ... (emphasis added)

Thus, the McMillins, as parents of the divorced father whose child was | {.subsequently adopted, have been divested of “all their legal rights,” with regard to Emily. This analysis is consistent with our supreme court’s ruling in Smith v. Trosclair, 321 So.2d 514 (La.1975). In Smith, a maternal grandmother had a judgment granting her visitation with her . grandchildren whom had since been adopted by their father’s second wife. The court found that, “the decree of adoption procured by the defendant’s second wife judicially severed all of plaintiffs rights and duties vis-a-vis her grandchildren.” Smith v. Trosclair, 321 So.2d 514, 515 (La.1975).

To prevent the legal effects of adoption from being overly harsh, La. Ch.C. art. 1264 does provide a limited exception to the permanent severing of all legal ties with adopted children. La. Ch.C. art. 1264 states:

Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death, whose child is thereafter adopted and the parents of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the child so adopted, (emphasis added)

Notably, the McMillins are unable to fit under this exception, because on March 2, 2004 their son, James Michael McMillin, chose to divorce his wife, Jennifer. Their child, Emily, was born just days later, on March 30, 2004. Divorce was granted on April 6, 2005, and James Michael McMillin died on August 2, 2006.

Louisiana Civil Code Article 9 — When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.

The Louisiana Children’s Code and La. R.S. 9:344 are clear and unambiguous and should be applied as written in accordance with La.Civ.Code art. 9. While I am sympathetic with the McMillins’ desire to visit with Emily, I cannot escape the conclusion that the legislature, “manifestly intended to ^subordinate [the grandparents’] wishes to the necessity that the adoptive child become a full and complete member of [her] adoptive home.” Smith 321 So.2d 514, 516. Accordingly, I respectfully dissent.

GREMILLION, Judge,

concurs in part and dissents in part and assigns the following reasons.

hln this matter, there were seven assignments of error presented by the appellant, Jennifer Barkdull McMillin. I completely agree with the majority in its disposition of the exception of no cause of action, grandparent visitation and the disclosure of existence of biological father. However, I dissent with regard to the issue of contempt. I believe the trial court erred in finding her in contempt of court and in failing to specify the grounds thereof.


author: AMY, Judge. GENOVESE, J.,

text:
    HIXSON AUTOPLEX OF ALEXANDRIA, INC. v. Donald Ray LEWIS.
    No. 08-1142.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Darrell K. Hickman, Alexandria, LA, for Defendant/Appellee, Donald Ray Lewis.
    Mark Felipe, Aaron L. Green, Vilar & Elliott, Alexandria, LA, for Plaintiff/Appellant, Hixson Autoplex of Alexandria, Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, MARC T. AMY, BILLY HOWARD EZELL and JAMES T. GENOVESE, Judges.
   AMY, Judge.

liAn employer and employee entered into a non-competition agreement. The employee was terminated and began to work for a competing company. The employer sought to enforce the non-competition agreement. The trial court, finding one provision invalid on the grounds of it being contrary to public policy, severed the offending provision and enforced the remaining two provisions of the agreement. The employer appeals, contending that the trial court erred by retroactively applying a substantive change to the pertinent statute. For the following reasons, we affirm in part and reverse in part and render judgment.

Factual and Procedural Background

The Petition for Injunctive Relief reveals that Hixson Autoplex of Alexandria, Inc. (“Hixson”) is an automobile dealership in the business of the “selling and leasing of automobiles, trucks, vans, accessories, parts, and related equipment as well as the servicing and repair of automobiles, trucks and vans in the Parishes of Rapides, Grant, Vernon, Sabine, Avoyelles, Natchi-toches, Allen, and Evangeline.” The record indicates that Donald Ray Lewis (“Lewis”) began working for Hixson on February 28, 2005, as a vehicle salesperson. Lewis signed a non-competition agreement upon commencement of employment, wherein he pledged, among other things, to refrain from the following activities for a period of two years after suspension or termination of his employment:

(1) Contact, directly or indirectly, any customer of Employer with whom Employee had contact during the Employee’s employment hereunder; or
(2) Carry on or engage in a business similar to that of the Employer in the parishes of Rapides, Grant, Vernon, Sabine, Allen, Avoyelles, Natch-itoches, and Evangeline, so long as Employer continues to carry on a like business therein.
l2(3) Contact, directly or indirectly, any Employee of Employer for the purpose of inducing such employee to own, manage, operate, control, participate in, solicit for, be employed by, or be connected with any person, firm or entity engaged or about to be engaged in a business similar to Employer.

It is not contested that Hixson compensated Lewis fully for his employment and provided him with training, equipment, assistance, advertising, and other business incidentals. Lewis’ employment with Hix-son was terminated on March 22, 2008. According to the record, shortly after his termination with Hixson, Lewis began to work for a competing sales and service dealership in Rapides Parish, M & M Dodge, Inc. Hixson, seeking to have the non-competition agreement enforced against Lewis, filed a Petition for Injunc-tive Relief and Hearing Thereon. Because there was no dispute regarding the material facts, the matter was submitted to the trial court on briefs. The trial court ordered that the first and third provisions of the non-competition agreement be enforced but held that the second provision, which prohibited Lewis from carrying on or engaging in a similar business in the specified parishes, was unenforceable in light of the 2006 amendment to the non-competition statute, La.R.S. 23:921 — an amendment that prohibited employers from contractually restraining automobile salesmen from selling automobiles. Hix-son appeals, asserting that the trial court committed legal error by retroactively applying a substantive change to the law.

Discussion

In Hooper v. Hooper, 06-825, p. 7 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, 731, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177, this court stated:

Where the trial court’s decision is based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such an incorrect decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). The standard of our review is accordingly de novo.

Here, the sole issue to be decided, the validity of a non-competition agreement, is a question concerning the application of law; accordingly, we will review this matter de novo. See Herff Jones, Inc. v. Girouard, 07-393, (La.App. 3 Cir. 10/3/07), 966 So.2d 1127, writ denied, 07-2464 (La.2/15/08), 976 So.2d 185.

In 2005 — the year Lewis signed the non-competition agreement-La.R.S. 23:921 provided, in pertinent part:

A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void.
C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.
D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

4Pursuant to 2006 La. Acts, No. 436, § 1, subsection I was added to La.R.S. 23:921 by the legislature on June 15, 2006, and was given effect on August 15, 2006. Louisiana Revised Statutes 23:921(1) provides:

I. (1) There shall be no contract or agreement or provision entered into by an automobile salesman and his employer restraining him from selling automobiles.
(2)(a) For the purposes of this Subsection, “automobile” means any new or used motor-driven car, van, or truck required to be registered which is used, or is designed to be used, for the transporting of passengers or goods for public, private, commercial, or for-hire purposes.
(b) For the purposes of this Subsection, “salesman” means any person with a salesman’s license issued by the Louisiana Motor Vehicle Commission or the Used Motor Vehicle and Parts Commission, other than a person who owns a proprietary or equity interest in a new or used car dealership in Louisiana.

In its Reasons for Judgment, the trial court articulated its understanding of the effect this amendment had on the non-competition agreement between Hixson and Lewis:

While it is true that the contract was not contrary to public policy at the time of confection and could have been enforced in its entirety prior to the 200[6] legislation, the court does not believe it can be enforced today to stop Lewis from selling new or used motor vehicles. The requirement that a contractual provision be valid at the time of enforcement is embodied in C.C. Article 1968, which provides as follows: [”]The cause of an obligation is unlawful when the enforce-merit of the obligation would produce a result prohibited by law or against public policy.[”] The court understands the 200[6] provision to be a prohibitory law. Neither the employer nor the licensed employee can contract to prohibit the act of selling. While Hixson and Lewis could at the time they did, Hixson can not now ask for enforcement of a contractual provision that is contrary to prohibitory law and public policy.

For the reasons that follow, we find that the trial court committed legal error in its application of the amended legislation. Louisiana Civil Code Article 6 provides: “In the absence of contrary legislative expression, substantive laws apply ^prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Because Lewis, an automobile salesman, executed a non-competition agreement before the amendment, which expressly prohibits such agreements, took effect, the essential inquiry is whether the amendment changed the substance of the law or just the procedure by which to apply it. In order to classify the 2006 amendment, we must follow the two-part test of Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992): “First, we must ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural or interpretive.”

2006 La. Acts, No. 436, § 1 did not include legislative intent regarding prospective or retroactive application; therefore, we must consider whether the amendment embodied substantive or procedural changes in the law. The supreme court in St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992), elaborated on the distinction: substantive laws create and/or change rights, duties, and rules, while procedural laws provide the avenue by which those rights, duties, and rules are enforced. Further, interpretative laws clarify the meaning of a statute. Id.

Relying on this distinguishing guideline, we find that the 2006 amendment which created subsection I of La.R.S. 23:921, established a new law, inasmuch as it changed the rights of a particular employer to prohibit its employees from engaging in competition with it. Accordingly, it is afforded prospective application only. See Herff Jones, Inc., 966 So.2d at 1135, wherein the court found that a 1995 amendment to La.R.S. 23:921, relating to independent contractors, was prospective in its | r,application and held: “[Ojnly the provisions of La.R.S. 23:921 in effect at the time that the agreement was entered into were applicable in determining whether this agreement was enforceable.”

The non-competition agreement signed by Lewis in 2005 complied with the statutory requirements at that time. Thus, the agreement, in its entirety, is valid and enforceable against Lewis.

Insofar as Hixson alternatively argues that the retroactive application of the amendment “impaired the contractual obligations of the parties and disturbed them vested rights by retroactively applying La.R.S. 23:921(I), in violation of the Due Process and Contract Clauses of both the United States and Louisiana Constitutions,” we find that resolution of the prospective versus retroactive question pretermits discussion of this alternative contention. Accordingly, we affirm the portion of the judgment that found the first and third provisions of the non-competition agreement to be enforceable, and we reverse the portion of the judgment that found the second provision to be invalid.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed insofar as it invalidated that portion of the non-competition agreement prohibiting the appellee, Donald Ray Lewis, from carrying on or engaging in a business similar to that of the appellant, Hixson Autoplex of Alexandria, Inc. Accordingly, judgment is entered in favor of Hixson Autoplex of Alexandria, Inc.; the injunction is entered in this regard and judgment is recast in part to reflect that it is:

FURTHER ORDERED, ADJUDGED AND DECREED that Donald Ray Lewis is enjoined from carrying on or engaging in a business similar to that of the Employer in the parishes of Rapides, Grant, Vernon, Sabine, Allen, Avoyelles, Natchitoches, and Evangeline, |7so long as Hixson Autoplex continues to carry on a like business therein for a period of two years, or until March 21, 2010.

All costs of these proceedings are assessed against the defendant.

AFFIRMED IN PART; REVERSED IN PART; INJUNCTION ENTERED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following written reasons.

_Jj_In my view, the trial court was correct. The issue in this case is not the retroactivity of the 2006 amendment to La.R.S. 23:921(1), but rather compliance with La. Civ.Code art.1968. Notwithstanding the specific exceptions set forth in the statute, as a general rule, non-competition agreements are contra bonos mores. Whether the non-competition agreement in this case is enforceable is determined by the date of enforcement, not the date of execution as required by La.Civ.Code art.1968. The opinion fails to mention and/or address the effect, vel non, of La.Civ.Code art.1968 to the case at bar. In this case, at the time of enforcement of the agreement by litigation, non-competition agreements relative to auto salespersons were legally prohibited. Therefore, I would affirm the trial court judgment.


author: CARLSON, Presiding Justice, GRAVES, Presiding Justice, KITCHENS, Justice,

text:
    Zeonia WILLIAMS, Individually and on Behalf of the Wrongful Death Heirs of Anthony Williams, Deceased v. Deborah SKELTON, M.D. and Steven J. Patterson, M.D.
    No. 2007-CT-00095-SCT.
    Supreme Court of Mississippi.
    April 9, 2009.
    D.L. Jones, Jr., Jackson, attorney for appellant.
    Kristi D. Kennedy, Whitman B. Johnson, III, Rebecca Lee Wiggs, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court.

¶ 1. Deborah Skelton, M.D., and Steven J. Patterson, M.D., were sued for medical negligence as a result of the death of Anthony Williams. After suit was commenced by Zeonia Williams, individually and on behalf of Anthony Williams’s wrongful-death beneficiaries, Drs. Skelton and Patterson moved for a dismissal of the case, asserting that Zeonia Williams had failed to comply with the sixty-day notice requirement under Mississippi Code Annotated Section 15-1-36(15) (Rev.2003). In due course, the trial court granted the motion to dismiss. Williams appealed, arguing that, because the defendants were not served with a copy of the complaint and summons until more than sixty days after notice of the intention to sue had been received by the defendants, she had complied with the statutory provisions. Further, Williams asserts that, alternatively, even if the suit was properly dismissed, she is entitled to refile. The Court of Appeals affirmed, and we granted certiora-ri only to clarify the manner of dismissal for failure to comply with Section 15 — 1— 36(15).

FACTS AND PROCEDURAL HISTORY

¶ 2. Anthony Williams died on September 24, 2003, while undergoing treatment from Dr. Deborah Skelton and Dr. Steven J. Patterson. Zeonia Williams (Williams), individually and on behalf of the wrongful-death beneficiaries of Anthony Williams, retained counsel and decided to pursue a wrongful-death claim. On June 15, 2005, Drs. Skelton and Patterson were notified by letter of Williams’s intent to file suit against them. On July 22, 2005, less than sixty days later, a complaint was filed in the Circuit Court of Hinds County. Process was sei'ved on October 19, 2005, and Drs. Skelton and Patterson timely answered. Thereafter, Dr. Skelton filed her Motion to Dismiss or for Summary Judgment, and Dr. Patterson filed his Motion for Summary Judgment or Motion to Dismiss and Joinder in Defendant Deborah Skelton, M.D.’s Motion to Dismiss or for Summary Judgment. The crux of these motions was that Williams had failed to comply with the sixty-day-notice requirement found in Mississippi Code Annotated Section 15-1-36(15) (Rev.2003). Williams filed an amended complaint on November 9, 2005. On December 14, 2006, the Circuit Court for the First Judicial District of Hinds County, Judge W. Swan Yerger presiding, granted the motions and dismissed Williams’s action for failure to satisfy the notice requirements of section 15-1-36(15).

¶ 3. On December 21, 2006, Williams timely appealed, and the case was assigned to the Court of Appeals. The Court of Appeals affirmed the Hinds County Circuit Court’s judgment of dismissal on April 22, 2008. Williams v. Skelton, 6 So.3d 433, 2008 Miss.App. LEXIS 250 (Miss.Ct.App. Apr. 22, 2008). Williams filed a motion for rehearing, which the Court of Appeals denied. Williams v. Skelton, 2008 Miss.App. LEXIS 505 (Miss.Ct.App. Aug. 19, 2008). Thus, Williams subsequently filed her petition for writ of certiorari, and this Court granted the petition on November 12, 2008.

DISCUSSION

¶4. Before we address the issue which caused us to grant certiorari, we must address an issue raised for the first time via Williams’s petition for writ of certiorari, whether section 15-1-36(15) is unconstitutional. Stated differently, once the defendants filed in the trial court their respective motions to dismiss or for summary judgment on the basis of noncompliance with section 15-1-36(15), Williams, in her separate responses to these motions, failed to raise the issue of the unconstitutionality of this statute. Since the constitutionality issue was not raised, the trial judge did not address this issue. After appealing the trial court’s dismissal of this case, Williams did not assert in her appellate brief that section 15-1-36(15) is unconstitutional. Since the issue was not before it, the Court of Appeals did not address this issue. After the Court of Appeals issued a judgment adverse to Williams, she filed a motion for rehearing, again failing to raise the constitutionality issue. In her petition for writ of certiora-ri, Williams for the first time asserted that section 15-1-36(15) was unconstitutional as to the sixty-day-notice requirement.

¶ 5. Since the issue of the constitutionality of section 15-1-36(15) was raised for the first time via her petition for writ of certio-rari, Williams, through counsel, filed her Motion Notifying Attorney General of Challenge to Validity of Statute. Thereafter, Drs. Skelton and Patterson, through counsel, filed their Response to Petitioners’ Motion Notifying Attorney General of Challenge to Validity of Statute. The Attorney General filed a Notice of Joinder in which he joined and adopted, in toto, the arguments of Drs. Skelton and Patterson in asserting that Williams is procedurally barred from attacking the constitutionality of the statute; and that, alternatively, the unconstitutionality argument is without merit. Finally, Williams, through counsel, filed her Response to Notice of Joinder of the Attorney General of Mississippi.

¶ 6. This Court finds that Williams’s assertion that section 15-1-36(15) is unconstitutional is procedurally barred because she raises this issue for the first time on appeal, and she did not give the trial court the opportunity to rule on this issue. In Alexander v. Daniel, 904 So.2d 172, 183 (Miss.2005), we stated

We have been consistent in holding that we need not consider matters raised for the first time on appeal, which practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review. See, e.g., Triplett v. Mayor & Aldermen of Vicksburg, 758 So.2d 399, 401 (Miss.2000) (citing Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992)).

Alexander, 904 So.2d at 183.

¶ 7. Turning now to the issue on which we granted certiorari, Mississippi Code Annotated Section 15-1-36(15) requires that “[n]o action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.” See Miss.Code Ann. § 15-1-36(15) (Rev.2003). We agree with the Court of Appeals that this Court “has required strict compliance with the mandates of Mississippi Code Annotated Section 15-1-36 such that failure to satisfy the pre-suit notice requirement mandates dismissal of the plaintiffs complaint.” Williams, 6 So.3d at 435, ¶ 5, 2008 Miss. App. LEXIS 250 at *4, ¶ 5 (citations omitted). We thus affirm the Court of Appeals’ judgment in today’s case. It must be clarified, however, that dismissal for failure to provide notice under this statute ordinarily should be without prejudice. Arceo v. Tolliver, 949 So.2d 691, 698 (Miss.2006). Williams’s complaint should have been dismissed without prejudice for her failure to comply with the pre-suit requirements. Additionally, we note that while the trial court did not use the words “without prejudice” in its judgment of dismissal, the trial court did state in its judgment, inter alia, that “any subsequent suit being filed in this Court by [Williams] arising from the death of Anthony Williams must have attached to it a copy of this Judgment of Dismissal.... ”

CONCLUSION

¶ 8. Although we affirm the trial court and the Court of Appeals, we granted certiorari to reiterate that dismissal for failure to comply with the pre-suit requirements of Mississippi Code Annotated Section 15-1-36 should be without prejudice.

¶ 9. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED AND THIS CASE IS DISMISSED WITHOUT PREJUDICE.

WALLER, C.J., DICKINSON, RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. CHANDLER, J., NOT PARTICIPATING.

GRAVES, Presiding Justice,

Dissenting.

¶ 10. The majority opinion indicates that certiorari was granted “only to clarify the manner of dismissal for failure to comply with Section 15-1-36(15).” However, there is no order or anything else which indicates that certiorari was granted solely for that purpose. Because I would find that Mississippi Code Annotated section 15-1-36(15) is unconstitutional or, alternatively, only requires substantial compliance, I respectfully dissent. Moreover, I write to reiterate my opinion on this issue as previously set out in Thomas v. Warden, 999 So.2d 842 (Miss.2008), reh’g denied (Feb. 12, 2009), and Arceo v. Tolliver, 949 So.2d 691 (Miss.2006).

¶ 11. Section 15-1-36(15), states:

No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.

Miss.Code Ann. § 15-1-36(15) (Rev.2003).

¶ 12. In Arceo, this Court found that Section 15-1-36(15) should be strictly construed and that Tolliver’s claim should have been dismissed because no notice was provided under the statüte. Arceo v. Tolliver, 949 So.2d 691. However, this Court further found that the constitutionality of this section was not raised on appeal and it was therefore not addressed. Arceo v. Tolliver, 949 So.2d 691. Arceo is distinguishable because, in the instant case, the constitutionality of the section has been raised.

¶ 13. Williams asserts that Mississippi Code Annotated section 15-1-36(15) is unconstitutional. Specifically, Williams asserts that 15-1-36(15) conflicts with Rule 3 of the Mississippi Rules of Civil Procedure, which governs the commencement of civil actions and requires only that a complaint be filed with the appropriate court.

¶ 14. “[T]he inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.” Claypool v. Mladineo, 724 So.2d 373, 380 (Miss.1998). See also Newell v. State, 308 So.2d 71, 76 (Miss.1975). Section 144 of the Mississippi Constitution says: “The judicial power of the State shall be vested in a Supreme Court and such other courts as are provided for in this Constitution.” Miss. Const. art. 6, § 144. There is no notice requirement in the judicial rules.

¶ 15. Section 15-1-36(15) conflicts with section 24 of article six of the Mississippi Constitution, which guarantees “[a]ll courts shall be open ... and justice shall be administered without sale, denial, or delay,” because the sixty-day notice requirement impedes or delays citizens’ access to courts. A statute requiring a party to wait sixty days after providing notice constitutes a delay. Further, Williams has a First Amendment right to seek a redress of her grievances in a court of law. U.S. Const. amend. I.

¶ 16. I would find that section 15 — 1— 36(15) is a procedural statute requiring sixty days’ notice and that this Court’s finding in Wimley v. Reid, 991 So.2d 135 (Miss.2008), as to section 11-1-58, is likewise applicable here. In Wimley, this Court found:

[W]e are unable to ignore the constitutional imperative that the Legislature refrain from promulgating procedural statutes which require dismissal of a complaint, and particularly a complaint filed in full compliance with the Mississippi Rules of Civil Procedure. We find Section 11-1-58’s requirement that a complaint be accompanied by a certificate or waiver to be just such a procedural statute.

Id. at 138.

¶ 17. Further, the dissent in Arceo correctly addressed the implications of section 15-1-36(15):

The law, as interpreted by the majority, definitely is not in keeping with this principle [of freedom of access to the courts], but is in fact irrational, illogical, and unfair to those Mississippians seeking a redress of their grievance in a medical malpractice claim. Furthermore, the application of the pre-suit notice requirement, as interpreted by the majority, unnecessarily restricts access to the courts. The constitutional right of notice to the defendants was satisfied when Myrtis Tolliver filed her complaint. The implementation and enforcement of an additional notice requirement, without any other method to cure, is inequitable, unconstitutional, and deprives this plaintiff of her day in court.

Arceo, 949 So.2d at 699, 700 (Graves, J., dissenting).

¶ 18. For these reasons, I find that section 15-1-36(15) is unconstitutional. However, assuming arguendo that the statute is constitutional, then substantial compliance is the appropriate standard.

¶ 19. Williams asserts that she complied with the notice provision, because the defendants were not served with the complaint until more than sixty days after they had received notice of her intention to sue. Williams further asserts that she filed an amended complaint more than sixty days after the notice of her intention to sue.

¶ 20. In Arceo, this Court said specifically, as to strict versus substantial compliance:

However, with all due respect to the dissent, today’s case does not involve a question of whether the plaintiff complied with section 15-1-36(15) by submitting a notice containing information which was substantial enough to be in compliance with the statute.... Instead, we are squarely confronted with a situation where the plaintiff, in filing an original complaint, a first amended complaint, and a second amended complaint, wholly failed to submit any notice required by the statute.

Arceo, 949 So.2d at 697.

¶ 21. In the instant case, notice was provided, thus allowing an inquiry of whether such notice substantially complied with the requirements of the statute.

¶ 22. Based on the language quoted herein from Arceo regarding substantial compliance, the wording of the statute and the fact that, here, notice was indeed provided, Williams substantially complied.

¶ 23. For the reasons stated herein, I would find that this matter should be reversed and remanded to the trial court. Therefore, I respectfully dissent.

KITCHENS, J., joins this opinion.

KITCHENS, Justice,

Dissenting.

¶ 24. Although I fully concur with Presiding Justice Graves’s excellent dissent, I write separately to express my concern with the majority opinion’s language that “dismissal for failure to provide notice under this statute ordinarily should be without prejudice.” (Emphasis added.) This statement suggests that there may be cases in which failure to comply strictly with the pre-suit notice requirement of Section 15-1-36(15) would require dismissal with prejudice. Because I can imagine no circumstances that would warrant the irrevocable termination of what could be a meritorious civil claim for failure to jump through an innocuous procedural hoop, I respectfully dissent.

GRAVES, P.J., joins this opinion.

      . In actuality, the trial court granted a traditionally filed motion for summary judgment, or alternatively, motion to dismiss. We take this opportunity to mention that whenever such a motion is granted concerning section 15-1-36(15), the trial judge should grant the alternative motion to dismiss so that the dismissal may be without prejudice, as discussed, infra.

        . The Court of Appeals did not rule on this issue stating: "Our review of the record indicates that the trial judge specifically declined to rule within the judgment of dismissal with regard to the propriety of a subsequent suit. Therefore, without a trial court ruling on this issue, the matter is not properly before this Court at this time." Williams v. Skelton, 6 So.3d 433, 434-35 n.1, 2008 Miss.App. LEXIS 250, *3, ¶ 4 n. 1 (Miss.Ct.App. Apr. 22, 2008).

      . Miss. Const. art. 3, § 24.