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    Lionel POWELL v. CHABANAIS CONCRETE PUMPING, INC. & XYZ Insurance Company.
    No. 11-CA-408.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Alfred A. Olinde, Wesley G. Barr, Nicholas H. Berg, Attorneys at Law, New Orleans, LA, for PlaintiffiAppellee.
    Brent M. Maggio, Attorney at Law, Me-tairie, LA, for DefendanVAppellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| aThe defendant/appellant, Chabanais Concrete Pumping, Inc. (“Chabanais”), appeals the trial court’s judgment casting it in judgment to the plaintiff/appellee, Mr. Lionel Powell, in the amount of $415,560.65. Based on the following, we amend the trial court’s judgment to correct a mathematical error. As amended, the judgment is affirmed.

Factual and Procedural Background

On August 18, 2003, Chabanais, a company in the business of providing equipment and operators to pump concrete, provided a 36-meter boom pump truck to P. Vicari Contractors for use in the construction of an addition to Archbishop Shaw High School located in Marrero, Louisiana. Mr. Richard Edwards, the operator of the truck, and his helper, Mr. Eric Dunbar, arrived at the job site around 2:00 A.M. to prepare the truck to pump concrete. Mr. Dunbar unfolded the boom and clamped a reducer to the end of the boom with a 5" clamp. He then clamped als4" hose to the other end of the reducer. The concrete was then placed into the truck and began to pump through the boom assembly.

Mr. Powell, a cement finisher, was stationed on the second floor of the construction site, which is where the concrete was going to be poured. Approximately 20 other men were on site waiting for the job to begin. No one had their safety goggles on yet, because the job had not started. Mr. Powell and two other men were standing next to each other when they heard a loud “boom.” Immediately after hearing the “boom,” Mr. Powell’s eyes were packed with concrete. He became disoriented and fell to his knees. Mr. Powell was taken to West Jefferson Medical Center’s emergency room where his eyes were washed out. He was released later that day and was instructed to visit the Westside Eye Clinic for further evaluation.

The next day, Mr. Powell visited the clinic and was initially treated by Dr. Earl Sonnier. Dr. Sonnier noted that Mr. Powell presented with chemical burns to both eyes. He prescribed Maxitrol drops, a combined antibiotic and steroid, which Mr. Powell was instructed to use four times daily in each eye. When Mr. Powell returned for a follow-up visit on August 22, 2003, he complained of blurry vision, dizziness, and light sensitivity. During that visit, his corneas were clear and his intrao-cular pressure was noted as being 16 in both eyes — which was within normal range. He was instructed to use the Maxi-trol drops three times daily. When Mr. Powell returned to the clinic on August 26, 2003, he was seen by Dr. Suzette Killeen. Dr. Killeen noted that Mr. Powell’s left eye was red and painful but that his eye pressure remained at 16. She prescribed Pred Forte drops, a steroid topical, for treatment of the left eye only. When Mr. Powell returned on August 29th, the pressure in his left eye had elevated to 25 and the right eye was 21. On September 19, 2003, the left eye pressure was 29 and the right eye pressure was |420. Then, on October 14, 2003, Mr. Powell’s right eye pressure was elevated to 25 and the left eye ranged between 35 and 38. Dr. Kil-leen suspected that Mr. Powell was suffering from glaucoma.

Dr. Owen LaCour began treating Mr. Powell on March 5, 2007. When Dr. LaC-our began treating him, the pressure in his left eye was around 31. A visual field test showed a deficit in Mr. Powell’s left eye, which Dr. LaCour noted as suspicious for glaucoma — a disease that characterizes itself by the loss of peripheral vision. Because Mr. Powell’s pressure was not being controlled with drops, Dr. LaCour recommended and performed a laser surgery. After the surgery however, Mr. Powell’s pressure continued to fluctuate. Dr. LaC-our then performed a trabeculectomy (“trab”) on May 21, 2009, a surgery that created an artificial drain in order to relieve the pressure.

Mr. Powell filed a Petition for Damages on August 16, 2004, against Chabanais and XYZ Insurance Company for injuries sustained during the accident. The petition alleged that Chabanais’ negligence was the proximate cause of the accident which led to his eye injury. He subsequently amended the petition on January 21, 2005, to include Sumitomo Marine & Fire Insurance Company of America as a defendant. The amended petition alleged that the Pred Forte drops caused him to contract irreversible glaucoma. Chabanais subsequently moved for a partial summary judgment on September 10, 2009. In the motion, Chabanais argued that it should receive a credit for all past and future medical expenses paid by the Eye, Ear, Nose, and Throat Foundation (EENT). Its argument was premised on the fact that the expenses were not a collateral source because Mr. Powell did not contribute to the plan that paid the expenses. The motion was denied, and the trial commenced on June 14, 2010.

|fiMr. Richard Edwards, the operator of the pump truck, was deposed for trial. He testified that he performed a visual inspection of the equipment before the concrete was pumped but did not perform any type of test to determine the pump’s structural soundness. Mr. Edwards explained that the visual inspection involved lifting the reducer to determine whether it was too light. Once the truck passed the visual inspection, he stated that his helper, Mr. Dunbar, prepared the truck for the concrete. He testified that once the concrete began to flow, the reducer blew out in the middle. He stated that the reducer and hose were assembled correctly because if not, the concrete would have burst the pipes at the clamp instead of the middle of the reducer. He noted that he reported the accident to his employer when the job was finished.

Mr. Edwards, who had been a concrete pump operator for 13 years, testified that in his opinion, there were two possible causes of the failed reducer. He first noted that the concrete could have been too thin, explaining that thin concrete causes rocks to build up and clog the pipes. Secondly, he noted that a reducer is a wear item which could fail due to wear if not regularly replaced.

Mr. Charles Chabanais, a manager at Chabanais, testified that it was company policy to perform a complete inspection of the trucks every 600 engine hours but that the reducers were to be inspected daily. He testified that the method Chabanais used to inspect the reducer involved lifting it to determine whether it was too light. He explained that Mr. Huey Marcelle, the supervisor for inspections, performed a complete inspection of the truck on July 1, 2008. He further testified that Chabanais had no written policy which instructed employees what to do in case of an accident and that there was no written policy on how to investigate an accident. He noted that Chabanais did not have accident reports, safety committees, safety reports or safety manuals. He also testified that at the 1 fitime of the accident, the company had seven to eight trucks, yet he had no system in place to determine which trucks had the oldest or newest reducers.

Mr. Chabanais further stated that the first time he was asked to produce the reducer was November 21, 2006, but at that time, it had already been discarded. He noted that the reducer was not tested before it was discarded but added that he had never had a reducer to fail prior to this particular accident.

Mr. Giddings Emery testified at the trial as an expert in the field of mechanical engineering and construction. Mr. Emery testified that two methods exist to determine a reducer’s safety. One method is by a visual inspection which involves checking for dents, bends, and cracks. The other method is to perform a wall thickness reading with a caliper, a $5 instrument similar to a ruler. To the best of his knowledge, Chabanais did not perform a wall thickness test on the reducer. He opined that Chabanais’ policy of inspecting the trucks every 600 engine hours was not in line with the industry standard. He based that opinion on the 2006 safety manual from the Concrete Pump Manufacturer’s Association (“CPMA”) which stated that inspections should be performed monthly or less. Mr. Emery further noted that a reducer is a wear item that must be periodically replaced. He opined that in this case, the problem which caused the defect could be attributed 99 percent to wear of the reducer.

Mr. Jeremy Hoffpauir also testified as an expert in mechanical engineering. He first stated that without the physical evidence of the reducer, there was no way to determine, within any degree of scientific certainty, why the reducer failed. He stated, however, that numerous causes exist for the failure of a reducer, i.e., a manufacturing defect, a material defect, a prior defect, or wear. He opined that 17Chabanais’ policy of performing a complete inspection every 600 engine hours was consistent with the American Concrete Pumping Association (“ACPA”) and Conforms policies because neither of them provided a set protocol for inspection. He testified that he telephoned the ACPA and was informed that there was no requirement that the reducer be inspected and that the only requirement for inspection related to the boom itself. He further testified that Conforms told him the same thing. Thus, in his opinion, inspecting the truck every 600 engine hours met standard practices. He noted, however, that the reducer is a wear item and that if never replaced, there was a 100 percent chance for failure.

Dr. Jonathan Nussdorf, who qualified as an expert in ophthalmology specializing in glaucoma, was deposed for trial. Dr. Nussdorf stated that he examined Mr. Powell on March 19, 2008, and that his examination did not reveal any evidence of old trauma. He noted, however, that Mr. Powell’s left eye pressure was 28/29, which he considered elevated and ocular hypertensive. He added that elevated eye pressure, however, was not indicative of glaucoma because glaucoma was simply the loss of peripheral vision. Dr. Nussdorf classified Mr. Powell as a steroid responder, explaining that he had underlying glaucoma prior to using the Pred Forte drops. He further stated that there was a less than three percent chance that the drops caused Mr. Powell’s glaucoma.

Dr. Suzette Killeen, one of Mr. Powell’s treating ophthalmologist, was also deposed for trial. Dr. Killeen opined that Mr. Powell likely experienced significant pain for the first 24 to 48 hours after the accident. She noted that the cornea, which has the greatest concentration of nerve endings in the smallest space, is extremely sensitive. She testified that the pain Mr. Powell experienced by having concrete jammed into his eyes was probably worse than a broken bone. She further noted Rthat Mr. Powell’s pressure was normal before she prescribed the Pred Forte drops but began to elevate thereafter. She opined that Mr. Powell’s glaucoma resulted from the steroid he was given to treat the condition that occurred secondary to his trauma.

Dr. Owen LaCour, another one of Mr. Powell’s treating ophthalmologists, testified that he began treating Mr. Powell on March 5, 2007. Dr. LaCour testified that although Mr. Powell’s left eye pressure was 81 during the initial visit, the actual pressure was higher because he presented with thin corneas, explaining that thin corneas falsely lower the eye pressure. Dr. LaCour stated that the three drops Mr. Powell was using should have decreased the pressure. He recommended and performed laser surgery, however, because Mr. Powell’s pressure remained elevated with the use of the drops. Dr. LaCour continued to monitor Mr. Powell after the laser surgery, but the pressure continued to fluctuate. He then decided to surgically intervene. Dr. LaCour performed the trab on May 21, 2009, noting that its average life span is two to five years. He further stated that, after the surgery, it was more probable than not that Mr. Powell’s condition could be controlled with Xa-latan, Erythromycin, and Omnipred for the next two to five years. After that time frame, however, Mr. Powell would require more surgery.

Specifically, Dr. LaCour testified that Mr. Powell would likely require another trab during his lifetime, explaining that three trabs was the maximum a person could safely have. He further testified that after either the second or third trab, he would likely have to perform another surgery called a valve procedure. He stated that the valve procedure also had a lifespan of two to five years. Finally, Dr. LaCour added that Mr. Powell would eventually develop a cataract in his left eye because of the steroid and would require cataract surgery as well.

|9Pr. LaCour testified that he could not rule out the possibility that the lumbar facet steroid injections Mr. Powell received in September 2003 and January 2004 contributed to intraocular hypertension and glaucoma. It was his opinion, however, that, within a reasonable degree of medical certainty, the trauma Mr. Powell sustained, coupled with the steroid drops, made his left eye more susceptible to glaucoma. He noted, however, that Mr. Powell’s glaucoma had not affected him functionally in that Mr. Powell could not tell that his peripheral vision had been diminished. Dr. LaCour stated that glaucoma was not a painful disease and that it did not require the use of pain medication. He also stated that blindness was a potential risk associated with glaucoma but that he did not believe Mr. Powell would go blind in this case.

Dr. LaCour noted that Mr. Powell’s past medical expenses incurred at his office totaled $6,915.00. He further stated that Mr. Powell would likely incur a yearly expense, without surgery, of $780.00 for the next 26 years, until he attained the age of 70. He projected surgical costs, which included additional trabs; a valve procedure, and cataract surgery, as $15,000.00. Finally, he projected glaucoma medication costs as $64,000.00. In all, Dr. LaCour projected total future medicals of $106,195.00.

Mr. Powell testified that, as a cement finisher, it was routine to get sand and dust into his eyes. In fact, he testified that in July of 2000, he visited an ophthalmology clinic to have his eyes washed out for that reason. He further testified that in 1999, he sustained an injury above his left eyebrow. At that time, he was observed by a doctor and his eye pressure was 14 in both eyes. Mr. Powell noted that prior to the accident, he never had an abnormal eye exam.

| ipMr. Powell stated that the force of the concrete hitting his eyes was so impactful that he fell to his knees. He became disoriented, could not open his eyes and was scared that he would never see again. He stated that the intense and substantial pain lasted for two days. He testified that he had experienced several painful events during his lifetime. He had broken an ankle, had a burst appendix, and suffered a back injury. He noted that on a scale from one to ten, with ten being the worst pain, the pain from the broken ankle and back injury was a five and that the burst appendix was a nine. He stated, however, that having the cement thrust into his eyes was a ten.

Mr. Powell stated that he currently takes Xalatan for his right eye and Eryth-romycin and an Omnipred ointment for his left eye, adding that he will have to use eye drops for the remainder of his life. He testified that he takes those three drops twice daily, causing him a daily inconvenience of about 30 minutes. Mr. Powell stated that he is constantly fearful of permanently losing his sight. He testified, however, that he has not taken any pain medication since the accident and that the accident has not affected his daily activities. In fact, since the accident occurred, Mr. Powell noted that he has been on about 15 concrete jobs.

In regards to his financial status, Mr. Powell testified that he is indigent and has no insurance. He testified that the EENT, a non-profit entity which assists indigent patients, pays all of the medical bills he incurs at Dr. LaCour’s office less a $20 office copay which he is responsible for. He testified that he also pays $20 each month at the drug store for the Er-ythromycin and Omnipred, noting that he currently receives Xalatan for free through a program sponsored by Pfizer. He added that he will likely require more surgeries in the future.

The trial court took the matter under advisement and rendered its judgment on September 28, 2010, in favor of Mr. Powell in the amount of $415,560.65. The lnaward included $300,000 in general damages, $106,195.00 for future medicals, and $9,365.65 for past medical expenses. Cha-banais moved for a new trial on October 5, 2010. The motion was denied on January 4, 2011. This appeal follows.

Assignments of Error

Chabanais presents the following assignments of error for review:

1. Whether the defendants were liable for plaintiffs accident given that the reducer was not defective and/or the defendants lacked prior notice of any defective condition prior to the accident;
2. Whether the plaintiff should have been assigned fault for the accident and if so, the degree of fault;
3. Whether the plaintiffs glaucoma was caused by the subject accident or from medication prescribed for the eye injury from the accident;
4. Whether the general damages award was excessive; and
5. Whether the defendants were entitled an offset and/or credit for the plaintiffs future medical bills that would be paid by a charity to which the plaintiff did not contribute any funds.

Discussion

First Assignment of Error

In its first assignment of error, Chaba-nais argues that under theories of negligence and strict liability, it is not liable because Mr. Powell failed to prove that the reducer was defective.

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corp., 06-0477 (La.12/18/06), 944 So.2d 564, 578; Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So.2d 1, 4; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989). “Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not.” Id. Thus, the plaintiff must produce evidence from which the factfin-der can reasonably conclude his injuries, more probably than not, were caused by the defendant’s negligence. Id. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries. Id.

In this case, Mr. Edwards testified that failure of the reducer caused the accident. While the experts testified that there were various reasons why a reducer might fail, there was no evidence to indicate that the reducer involved in the accident was new nor was there evidence that Chabanais’ reducers were periodically replaced on a predetermined schedule. The testimony does reveal, however, that reducers are 100 percent wear items. On the morning of the accident, Mr. Edwards only lifted the reducer to determine its weight. He did not inspect it for cracks, dents, or bends. Because Chabanais discarded the reducer, the cause of its failure cannot be determined. As such, Chaba-nais argues that Mr. Powell did not prove causation because he did not prove that the reducer failed. Chabanais cites to La. C.C. art. 2317.1 to support its position. However, an important caveat of La. C.C. art. 2317.1 provides, “[n]othing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.”

In Ullrich v. Jefferson Parish Hospital Service District No. 2, 03-0958, p. 8 (La.App. 5 Cir. 1/27/04), 867 So.2d 7, 12, this Court explained that the doctrine of 11sres ipsa loquitur applies when: “(1) the accident would not normally occur in the absence of negligence, (2) there is an absence of direct evidence to explain the activities leading to the injury, and (3) the accident or injury was caused by an agency on instrumentality within the actual or constructive control of the defendant.” Thus, the plaintiff must show that the injury would not normally occur in the absence of negligence. Id. As long as the fact-finder can “reasonably conclude that plaintiffs injuries were, more probably than not, caused by defendant’s negligence under the particular facts of a case, the doctrine of res ipsa loquitur applies.” Id. (citations omitted).

We find that the present case is ripe for the application of res ipsa loqui-tur. We first note that under the circumstances of this case, the accident is not one that would have normally occurred in the absence of negligence. It is undisputed that the cement which spewed from the boom assembly injured Mr. Powell. Next, we note that there is an absence of direct evidence to explain what caused the accident. Finally, we note that the accident was caused by equipment and employees within Chabanais’ control.

In addition to the causation elements, however, a plaintiff asserting a cause of action in either negligence or strict liability must also prove the following: “(1) that the defendant knew or should have known of the vice or defect, (2) that the damage could have been prevented by the exercise of reasonable care, and (3) that the defendant failed to exercise such reasonable care.” Zapalowski v. Campbell, 08-0055, p. 7 (La.App. 5 Cir. 6/19/08), 988 So.2d 772, 777, writ denied, 08-1642 (La.10/24/08), 992 So.2d 1036.

In this case, the evidence supports the conclusion that Chabanais’ failure to exercise reasonable care resulted in the accident that caused Mr. Powell’s injury. We note that the inspection report indicates that the truck involved in the accident 114was inspected on July 1, 2003. The report, however, fails to specifically mention anything about the reducer. Moreover, Chabanais did not maintain any type of record specifying which reducers were on which trucks nor did its records specify the age of the reducers on the trucks. Mr. Chabanais stated that he inspected the reducers by merely lifting them to determine whether they were too light. Mr. Emery confirmed that a visual inspection was acceptable but added that it should involve checking the reducer for dents, bends, or cracks. There is no evidence that such an inspection occurred in this case. Moreover, Mr. Edwards’ visual inspection on the morning of the accident did not include any test to determine the pump’s structural soundness. We further note that although the two mechanical engineering experts disagreed on the proper procedure for inspecting the reducers, both agreed that the reducer was a wear item that would fail if not replaced.

Based on the totality of the evidence, we find that the trial court did not err in finding that Chabanais’ negligence caused the accident in this case. We further find that Chabanais should have known, through the exercise of reasonable care, that its equipment was defective. Therefore, this assignment of error is without merit.

Third, Assignment of Error

In its third assignment of error, Chabanais contends that the trial court erred when it determined that Mr. Powell's glaucoma was caused either by the accident or by the Pred Forte drops prescribed to treat the eye injury.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the complained-of injuries. Spillers v. ABH Trucking Co., Inc., 30,332 (La.App. 2 Cir. 4/13/98), 713 So.2d 505, 509, writ denied, 98-1313 (La.6/26/98), 719 So.2d 1063; American Motorist Insurance Co. v. American Rent-All, Inc., 579 So.2d 429 (La.1991). The test for determining the 11Bcausal relationship between the accident and subsequent injuries is “whether the plaintiff proved, through medical testimony, that it was more probable than not that the subsequent injuries were caused by the trauma suffered in the accident.” Id. (citations omitted). Plaintiffs are aided in proving the causal relationship between the accident and their injuries by the legal presumption that “a medical condition producing disability is presumed to have resulted from the accident if the injured person was in good health prior to the accident, but shortly after the accident, the disabling condition manifested itself.” Id. To overcome this presumption, the defendant must show that some other particular incident could have caused the injury in question. Id.

Mr. Powell stated that he had never had an abnormal eye exam before the accident occurred. That testimony was not contradicted. The expert witnesses, Drs. Kil-leen, LaCour, and Nussdorf, all confirmed that Mr. Powell’s previous medical records reflected that his eye pressure was within normal range in 1999. The three experts, however, differed in their opinion on whether the August 18, 2003, accident caused Mr. Powell’s glaucoma.

Drs. Killeen and LaCour found that Mr. Powell’s glaucoma resulted from the steroid drops he used to treat the elevated eye pressure caused by the accident. Dr. Kil-leen noted that the lumbar facet steroid injections Mr. Powell received could have elevated his eye pressure. She pointed out, however, that the pressure was more elevated in the left eye, which was the only eye he used the Pred Fort drops in. Because of this, she opined that Mr. Powell’s glaucoma was “the result of the steroid he was given to treat the condition that occurred secondary to his trauma.” Dr. LaCour also could not rule out the possibility that the lumbar facet steroid injections contributed to Mr. Powell’s glaucoma. However, he opined, within a reasonable degree of medical certainty, that the trauma Mr. Powell | ^sustained, coupled with the steroid drops, made his left eye more susceptible to glaucoma. Dr. Nussdorf testified that Mr. Powell likely had underlying glaucoma that was exacerbated by the steroid use. He opined that there was a less than three percent chance that the Pred Forte drops caused Mr. Powell’s glaucoma.

Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is most credible. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073. Moreover, “the diagnosis and opinions of a plaintiffs treating physician and specialists to whom referred by the treating physician are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes only.” Prestenback v. Schwegmann Giant Supermarkets, Inc., 96-0793 (La.App. 5 Cir. 1/28/97), 688 So.2d 149, 156, writ denied, 97-0977 (La.5/30/97), 694 So.2d 249; Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042, 1044 (La.1982). Because Drs. Killeen and LaCour were Mr. Powell’s treating physicians, we cannot say that the trial court was manifestly erroneous in giving their testimony more weight than that of Dr. Nussdorfs. Therefore, this assignment of error is without merit.

Fourth Assignment of Error

In its fourth assignment of error, Chabanais argues that in light of Mr. Powell’s positive diagnosis, the $300,000 award in general damages is excessive. To support its contention, he points to other eye injury cases in which the general damages awards ranged between $25,000 and $40,000. See Aguillard v. Langlois, 471 So.2d 1011 (La.App. 1 Cir.1985); Schexnaider v. State Farm Ins., 541 So.2d 223 (La.App. 4 Cir.1989); Cole v. City of West Lake, 517 So.2d 928 (La.App. 3 Cir.1987).

117The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn v. Mar. Overseas Corp., 623 So.2d 1257, 1260 (La.1993). The Louisiana Supreme Court has established two standards in the appellate review of lower court awards:

(1) To modify the amount of the award an appellate court must find that the trial judge or jury abused the much discretion accorded by the codal provisions in making the award, and (2) The award in other cases serve only as an aid in determining whether there has been an abuse of the discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979).

Martin v. Gulf S. Beverages, Inc., 454 So.2d 250, 254-55 (La.App. 5 Cir.1984).

In this case, we cannot say the trial judge abused its discretion. The record reflects that Mr. Powell had cement thrust into his eyes with such force that he fell to his knees. He became disoriented and was afraid that he would never see again. He was immediately rushed to the emergency room where it was noted that he was unable to open his eyes. The intense pain that Mr. Powell experienced on the morning of the accident lasted for forty-eight hours. Since the accident, Mr. Powell has had undergone two surgical procedures and has made numerous visits to the doctor’s office. He will continue to have a lifetime of doctor’s care and medication in that he will require daily administration of eye drops, monthly visits to the pharmacy, yearly eye exams, and a minimum of three additional surgeries through the remainder of his lifetime. This, coupled with the fact that he is constantly fearful of permanently losing his sight.

In addition, Dr. LaCour projected that Mr. Powell would likely incur a yearly medical expense, without surgery, of $780.00 for the next 26 years, until he attained the age of 70. He also projected surgical costs of $15,000.00 and glaucoma medication costs of $64,000.00.

|isln Rayborn v. Diamond Offshore Co., 02-0084, p. 9 (La.App. 4 Cir. 11/13/02), 882 So.2d 1052, 1057-8, the Fourth Circuit determined that the plaintiff, who sustained an eye injury, was entitled to $300,000 in general damages. That court noted that $250,000 was the highest amount the jury could have reasonably awarded for the initial injury. In support of its finding, the Fourth Circuit determined that the plaintiff experienced extreme stress and feared the possibility of blindness. Id. See Martin, supra (where this Court affirmed a $300,000 general damages award to a plaintiff who sustained an eye injury.). Accordingly, we will not disturb the trial court’s award.

Second Assignment of Error

In its second assignment of error, Chabanais contends that the trial court erred when it failed to assign fault to Mr. Powell for the accident. The crux of Cha-banais’ argument is that Mr. Powell, an experienced cement finisher, contributed to his own injury because he was not wearing safety goggles when the accident occurred. The record reflects, however, that the accident occurred before the job began. Chabanais offered no evidence or testimony to rebut this fact. Therefore, it was unnecessary for Mr. Powell to be wearing goggles at the moment the accident occurred. Therefore, this assignment of error is without merit.

Fifth Assignment of Error

In its fifth assignment of error, Chabanais argues that because the EENT is not a collateral source, it is entitled to a credit for the future medical bills the EENT will pay on Mr. Powell’s behalf.

Under the collateral source rule, “a tortfeasor may not benefit, and an injured plaintiffs tort recovery may not be reduced, because of monies received by the plaintiff from sources independent of the tortfeasor’s procuration or contribution.” Bozeman v. State, 03-1016, p. 9 (La.7/2/04), 879 So.2d 692, 698. Hence, payments received from an independent source are not deducted from the award the aggrieved party would otherwise receive from the wrongdoer, and, “a tortfea-sor’s liability to an injured plaintiff should be the same, regardless of whether or not the plaintiff had the foresight to obtain insurance.” Id.

Chabanais relies on Bozeman, supra, to support its position that it should be given a credit for the amounts that will be paid by the EENT. Chabanais states in its brief, “[m]edicaid recipients are unable to collect the Medicaid “write-off ” amounts as damages because no consideration is provided for the benefit,” citing, Bozeman, supra, at 705 (emphasis added). In Boze-man, the plaintiff sought to recover amounts in excess of what Medicaid actually paid for medical services. Although the court, in Bozeman, determined that the plaintiff was not entitled to those amounts, it did determine that the plaintiff was entitled to the amounts Medicaid had actually paid. Thus, Chabanais’ reliance on this case is misguided.

In this case, Mr. Powell only seeks to recover the amounts that the EENT will actually pay for his medical services. Cha-banais maintains, however, that the EENT is not a collateral source because Mr. Powell has not suffered a diminution of his patrimony in order to receive the benefit. Although Mr. Powell does not pay a premium, per se, for medical benefits from the EENT, he is required to pay a $20 copay. Thus, the $20, which would have been available to him but for the injury, is no longer available and he has therefore sustained a loss. But even if the medical services cost Mr. Powell nothing, Chabanais cannot profit thereby. See Spizer v. Dixie Brewing, 210 So.2d 528, 533 (La.App. 4 Cir.1968). Therefore, this assignment of error is without merit.

12pAs a final matter, the trial court committed a mathematical error in its judgment. In discharging our duty of rendering a judgment that is just, legal, and proper upon the record on appeal, we must correct that error. La. C.C.P. art. 2164; Woods v. Ratliff, 407 So.2d 1375 (La.App. 3 Cir.1981). The judgment in this case awards:

General Damages: Physical pain and suffering and emotional distress $300,000.00
Future medicals, inclusive of projected glaucoma medications, projected surgical costs and office visits and testings $106,195.00
Past Medical Expenses
West Jefferson Medical Center o O i — i CO rH I*z-' Ufir
Jefferson Radiology O O oo ⅛/J
West Bank Eye Clinic O O tr-o> XT»
Walgreens LO CD oo
Dr. Jay LaCour o p P CD
Dr. Warren Whitcomb o O cd i-l |»/-⅝ \JV

The trial court erroneously included Dr. LaCour’s past medical expense of $6,915 into the future medicals award. During the trial, the following exchange occurred between Chabanais’ counsel and Dr. LaC-our:

Q. Okay. So the total past offices [sic] visits are 3,915. The past surgical expense is 3,000 correct?
A. Uh-huh.
Q. Is that a yes?
A. Yes, that is. Sorry
Q. Right. So your future medical care that you provided out on this Plaintiffs Exhibit Number 11—
A. Uh-huh.
Q. —includes the past medical expenses that have been incurred since you generated this document.
121 A. Correct.
Q. [By Mr. Powell’s counsel] All right. And then if you backed out 6,955 [sic] from the 106,000 and change that you put down there, its approximately 100 grand is what you came up with, right— A. That is correct.
Q. —for future medicals. Is that right?
A. That’s correct.

The testimony, which is supported by documentary evidence, reflects that the future medicals award should be reduced by $6,915.00.

Conclusion

Based on the foregoing, the trial court’s judgment is amended to reduce future medicals by $6,915.00. As amended, the judgment is affirmed.

AFFIRMED, AS AMENDED

      . Mr. Emery testified that it was error for him to rely on the 2006 CPMA safety manual which became effective on December 2, 2006. He noted that he should have relied on the safety manual that was in effect when the accident occurred in 2003.

      . Conforms was the manufacturer of the reducer.

      . When Mr. Powell began treatment with Dr. LaCour, he was using Cosopt, Alphagan P and Xalatan.

      . Mr. Powell sustained an unrelated back injury after the accident. Steroid injections were part of his treatment.

      . A presumption may arise in the theory of spoliation of evidence when it is an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Lewis v. Albertson’s Inc., 41,234 (La.App. 2 Cir. 6/28/06), 935 So.2d 771, 774. Although Mr. Powell states in his brief that the trial court would have been justified in finding that Chabanais spoliated evidence, there is no allegation of spoliation in the record. Moreover, the record does not support a finding that Chabanais intentionally destroyed the reducer to deprive his opponent of its use. Therefore, we decline to apply the presumption of spoliation of evidence in this case.

      . The additional $50,000 was awarded for the plaintiff's conversion disorder.

      . Bozeman, supra, at 693 ("When an injured plaintiff is a Medicaid recipient, federal and state law require that the healthcare providers accept as full payment, an amount set by the Medicaid fee schedule, which, invariably, is lower than the amount charged by the healthcare provider. The difference between what is charged by the healthcare providers and what is paid by Medicaid is referred to as the "write-off” amount.”)


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    AQUATIC LODGING, LLC v. BAYOU BOYS BOAT RENTAL, LLC.
    No. 11-CA-382.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Corey E. Dunbar, Pivach, Pivach, Hufft, Thrifflley & Nolan, L.L.C., Belle Chasse, LA, for Plaintiff/Appellant.
    Robert J. Diliberto, Damon A. Kirin, Megan E. Snider, Joshua H. Weis, Diliber-to & Kirin, LLC, Metairie, LA, for Defendant/Appellee.

      Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

12At issue in this appeal is the validity of a forum selection clause contained in a Time Charter/Service Contract between the plaintifi/appellant, Aquatic Lodging, L.L.C. (“Aquatic”), and the defendant/ap-pellee, Bayou Boys Boat Rental, L.L.C. (“Bayou Boys”). The trial court upheld the clause and sustained an exception of improper venue filed by Bayou Boys. Aquatic appeals that judgment. We reverse and remand.

In July 2010, Aquatic and Bayou Boys entered into a Time Charter/Service Contract as part of the BP Oil Spill Response Project. Under the provisions of the contract, Aquatic leased a 110-man flotel barge at a daily rate of $32,570 to Bayou Boys. The term of the contract was from June 21, 2010 through September 18, 2010. The contract derives from a master service contract between Bayou Boys and BP Exploration & Production, Inc. (“BP”).

On August 31, 2010, Aquatic filed a suit on open account asserting that Bayou Boys had not paid the invoices sent for payment under the contract. | oAquatic attached an accounting of invoices sent and amounts paid to support its contention that Bayou Boys was $548,904.38 in arrears on the account.

Bayou Boys filed an exception of improper venue based on the following forum selection clause contained in the contract.

In the absence of a mutual agreement in writing, for any action Connected With this Contract brought by either Party (or any member of either Party’s Group, or any Third Party pursuant to this contract), venue shall be exclusively in federal district court situated in Harris County, Texas, or if there is no subject matter jurisdiction in federal court, then in the Texas State District Court situated in Harris County, Texas. The Parties (and any other Persons asserting any action pursuant to this Contract) submit to personal jurisdiction and waive any other venue that may be applicable to such action whether by reason of their present of future residence or domicile or otherwise. Notwithstanding the foregoing, if one or both of the Parties is involved in litigation in a forum other than in Harris County, Texas, the Parties may assert claims Connected With this Contract in such litigation to the extent, and only to the extent, necessary to avoid waiver of such claims. Each Party, knowingly and voluntarily, waives its respective right to a jury trial.

Aquatic opposed the exception by arguing that the enforcement of the forum selection clause would be unreasonable, unjust, and against public policy. More specifically, Aquatic asserts that the parties do not have minimum contacts in Texas, that the Louisiana Unfair Trade Practices Act prohibits forum selection clauses, and that Jefferson Parish is the most convenient forum for all parties.

After a hearing on the matter, the trial court granted the exception of venue, finding that the forum selection clause was valid and sustaining Bayou Boys exception of venue. Aquatic appealed that ruling. Bayou Boys filed a brief in opposition to the appeal in this Court. However, subsequently, Bayou Boys filed a Motion to Withdraw Opposition to the Appeal and waived oral argument. This motion makes Bayou Boys’ position on the merits of the judgment from which the appeal was taken unclear to this Court. Therefore, in this opinion, we will consider |4only the arguments made by appellant, Aquatic, and not the opposing arguments of appellee, Bayou Boys.

LAW AND ANALYSIS

Forum selection clauses are legal and binding in Louisiana, except as specifically prohibited by law. These clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that enforcement would contravene a strong public policy for the forum where the suit is brought. Therefore, a party seeking to set aside such a clause has a heavy burden.

The clause at issue is contained in a subcontract involving two Louisiana companies that mirrors the forum selection clause in the overriding master service contract between Bayou Boys and BP. Aquatic argues that enforcement of this forum selection clause requires minimum contacts with the selected state that are not present in this instance. We agree.

Aquatic asserts that enforcement of the forum selection clause in this ease contravenes a strong public policy against such clauses and is unreasonable and unjust. In support of that argument, Aquatic cites Tulane Indus. Laundry, Inc. v. Quality Lube Oil, Inc, In that case, the forum selection purported to allow a Louisiana company to sue a Mississippi resident in Louisiana, even though the Mississippi resident had no minimum contacts with Louisiana and had not submitted to personal jurisdiction there. In reaching that decision, the Tulane court cited the Unfair Trade Practices and Consumer Protection Law, noting that the statute prohibits, as against public policy, the parties to a contract from agreeing |5that a particular court would have jurisdiction to decide a contractual dispute when no minimum contacts existed in relation to the chosen court.

We find that reasoning applicable to the contract between Aquatic and Bayou Boys. Both Aquatic and Bayou Boys are Louisiana companies involved in the BP spill cleanup off the Louisiana Coast. The contract at issue in this appeal is a subcontract to a master contract between Bayou Boys and BP. There is no allegation that Aquatic is a party to that master service contract or has any minimum contacts with Texas.

We find that enforcement of this forum selection clause against Aquatic would be unreasonable and unjust, and enforcement would contravene a strong public policy of protecting the rights of small Louisiana companies to bring contractual disputes to Louisiana courts. Accordingly, we find the forum selection clause requiring Aquatic to file suit for payment in Texas to be invalid and unenforceable.

For the foregoing reasons, we find the trial court erred in finding the forum selection clause in the contract between Aquatic and Bayou Boy valid, and in sustaining the exception of venue. Accordingly, we reverse the trial court’s judgment, and we remand the matter for further proceedings in accordance with this opinion.

REVERSED AND REMANDED

      . Contract Article 24:05.

        . Garrity Printing, LLC v. M & M Mortg. Inc., 10-290 (La.App. 5 Cir. 11/9/10), 54 So.3d 81, 84 (citations omitted).

      . 00-0610 (La.App. 4 Cir. 1/24/01), 779 So.2d 99.

      . La. R.S. 51:1407.


author: JUDE G. GRAVOIS, Judge.

text:
    Charles SICARD v. Carole Molaison SICARD.
    No. 11-CA-423.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.
    Joseph C. Bartels, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Kim K. McElwee, Cynthia A. DeLuca, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ⅞Appellant, Charles Sicard, has appealed the trial court’s grant of summary judgment and award of attorney’s fees in favor of appellee, Carole Sicard. For the reasons that follow, we affirm the grant of summary judgment, reverse the award of attorney’s fees, and remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Charles Sicard filed a petition for divorce from Carol Sicard in 2008. Carole reconvened seeking spousal support. On April 8, 2009, Cynthia DeLuca, counsel for Carole, sent Charles a letter stating that it was her understanding that the parties had reached an agreement concerning final spousal support. A copy of a draft of a Consent Judgment on final support was included in the letter. Ms. DeLuca requested that Charles go to her office to sign the Consent Judgment.

|sOn April 9, 2009, Charles went to Ms. DeLuca’s office and signed the Consent Judgment. On April 13, 2009, the Consent Judgment was filed into the record of the divorce proceeding and was signed by the domestic commissioner. Thereafter, Charles began to pay the spousal support set forth in the Consent Judgment.

On April 6, 2010, Charles filed a Petition for Nullity of the Consent Judgment, alleging ill practices on the part of Carole and her attorney, Ms. DeLuca. On June 3, 2010, Carole’s Exception of No Cause of Action was granted and Charles was given fifteen days to amend his petition. On June 11, 2010, Charles filed a Supplemental and Amending Petition for Nullity of Judgment. On September 28, 2010, Carole’s second Exception of No Cause of Action was overruled. On October 1, 2010, Carole answered both the original and supplemental petitions for nullity, denying all allegations therein.

On November 5, 2010, Carole filed a Motion for Summary Judgment, stating that the nullity action is “completely unfounded in both fact and law.” Carole claimed that the nullity action was simply an effort to avoid paying support. On December 27, 2010, Charles filed an opposition to the Motion for Summary Judgment, claiming that he was not represented by counsel when he signed the Consent Judgment and was informed by Ms. DeLu-ca that he “would be unable to obtain a divorce until he agreed to provide spousal support in favor of’ Carole.

On February 9, 2011, the trial court held a hearing on the Motion for Summary Judgment. At the conclusion of the hearing, summary judgment was granted. This timely appeal followed.

yLAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Craig v. Bantek West, Inc., 04-0229 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof is on the mover to show that judgment should be rendered in his favor. La. C.C.P. art. 966(C)(2). If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Haley v. Roberts, 02-30 (La.App. 5 Cir. 5/29/02), 820 So.2d 1114, 1116.

In her Motion for Summary Judgment, Carole argued that throughout these entire proceedings, Charles had not been forthcoming about his income and had failed to produce proper and complete documentation of his income. She states 15that at the time the Consent Judgment was signed, a motion to compel discovery and a rule for contempt and attorney’s fees were pending. She reasons that Charles signed the Consent Judgment so that the motion and rule would be dismissed and he would not have to produce proof of his income. Carole claims that the only purpose of the action for nullity is to harass and financially burden her. Carole argues that Charles cannot carry his burden of proving any ill practice or fraud and cannot make the requisite showing that he has been deprived of a legal right, nor can he prove that enforcement of the Consent Judgment would be inequitable or unconscionable.

In support of her motion, Carole attaches a transcript of sworn testimony taken at the time Charles signed the Consent Judgment. The following are excerpts from that transcript:

EXAMINATION BY MS. DELUCA:
Q. Charles, you are here freely and voluntary; is that correct?
A. No. I’ve been forced.
Q. If you were forced, then we can’t sign this document today.
A. In that case, I’m on free will accord.
Q. You are freely and voluntarily here today?
A. Yes, I am.
Q. No one’s coerced you or held you— over this document?
A. Right.
Q. Yes or no?
A. Yes.
A. Nobody forced me to be here.
|fiQ. Have you had an opportunity to bring this [the Consent Judgment] to an attorney?
A. Yes, I have.
Q. Have you brought it to an attorney?
A. No, I didn’t.
Q. Have you chose not to bring it to an attorney?
A. Yes, I chose not to bring it to an attorney.
Q. Do you understand that I cannot answer any questions that you may have because I represent Mrs. Sicard?
A. Fine. I don’t have any questions for you.
Q. You have no questions regarding this document?
A. Other than what did you change?
Q. There are two paragraphs that have been changed in the document since I presented it to you a week or so ago when I sent it to you. It would be the paragraph on page 2 and the second to last paragraph on page 2.
If you’d like, you can review that right now; and if you’d you like the opportunity to take it to an attorney to review before you sign it today, we are fine with that as well.
A. Let’s get it over with.
Q. So you are taking the option not to take this to an attorney to have them review these paragraphs?
A. Yes, I’m taking the option. I’d like to sign it and get it over with. Is that agreeable to you?
Q. That’s fine with me.
A. All right. Do it.

Carole also submitted an affidavit from Ms. DeLuca, who attested that she never indicated to Charles that signing the Consent Judgment was a requirement for the divorce to be obtained or that it would settle and/or resolve the community property issues.

|7The Consent Judgment orders Charles to pay $800 per month in permanent/final spousal support to Carole. It further orders that “if for any reasons whatsoever any portion of CAROLE SICARD’S $463.00 per month of CHARLES SI-CARD’S social security benefits ceases then CHARLES SICARD shall pay to CAROLE SICARD the portion that was terminated.... ” It further orders that “the $800 per month, any or all of the $463.00 (if paid directly by Charles Sicard) and the payment of the Car Insurance, AAA Club Membership, and Cell Phone as permanent/final Spousal Support shall only terminate upon the remarriage of Carole Sicard and/or the death of either party.”

In opposition to the Motion for Summary Judgment, Charles contends that he agreed to the amount of spousal support in the Consent Judgment, but only with the “proviso that he would do so for only as long as his health would allow and was financially able to do so.” He contends that Ms. DeLuca knew that his agreement was conditioned on his ability to pay and Ms. DeLuca failed to inform him that the agreement which he signed contained a “non-modification” clause that would prevent him from seeking a reduction in spousal support.

In support of his opposition to the summary judgment, Charles submitted an affidavit attesting that he appeared at Ms. DeLuca’s office on April 9, 2009 to resolve all remaining issues between him and his wife, including divorce, spousal support, and community property. He attests that he was there under duress because he could no longer afford legal representation. Charles further attests that at the start of the meeting, he told Ms. DeLuca that he would only agree to pay the $800 spousal support for as long as he could afford to pay it. He attests that Ms. DeLuca did not respond at any time that he would be unable to seek a reduction should it become necessary. He attests that had Ms. DeLuca “told him that the ‘Consent Judgment’ could only be modified by either party’s death or Ms. Sicard’s | ^remarriage, and not upon a showing of a significant change in circumstance, he would never have signed in agreement thereto.”

It is well established that in a motion for summary judgment supporting and opposing affidavits shall be made on personal knowledge and set forth facts that would be admissible in evidence. La. C.C.P. art. 967. Ultimate facts and conclusions of law contained in supporting affidavits cannot be considered for purposes of summary judgment. JCM Const. Co., Inc. v. Orleans Parish School Bd., 02-0824, p. 42 (La.App. 4 Cir. 11/17/03), 860 So.2d 610, 635. Clearly Charles’ statements that “he would be unable to seek a reduction should it become necessary” and that the Consent Judgment could not be modified “upon a showing of a significant change in circumstances” are conclusory allegations. In opposing a motion for summary judgment, a plaintiff may not satisfy his burden of showing he will be able to satisfy his evi-dentiary burden at trial by resting on mere allegations or by filing self-serving conclusory affidavits which merely restate those allegations. See, Sims-Gale v. Cox Communications of New Orleans, 04-0952 (La.App. 4 Cir. 4/20/05), 905 So.2d 811, 313. Accordingly, because the affidavit submitted by Charles in opposition to Carole’s motion for summary judgment is merely a recitation of the allegations raised in his petition, and is insufficient to show that he will be able to carry his evidentiary burden of proving fraud or ill practice, in light of the sworn transcript taken at the signing of the Consent Judgment, there is no genuine issue of material fact. Thus, the trial court’s grant of summary judgment was correct and is hereby affirmed.

The trial court also awarded Carole $5,500 in attorney’s fees. On appeal, Charles argues that the trial court erred in awarding attorney’s fees without first conducting a hearing.

|9Louisiana Code of Civil Procedure article 2004 allows for the award of reasonable attorney’s fees incurred by the prevailing party in an action to annul a judgment on grounds of fraud or ill practice. However, regardless of the statutory authorization for an award of attorney’s fees, courts should examine certain factors to determine the reasonableness of attorney’s fees. Rivet v. State, Dep’t. of Transp. and Dev., 96-145, p. 11 (La.9/5/96), 680 So.2d 1154, 1161. Factors to be considered include the ultimate result obtained; the responsibility incurred; the importance of the litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment, and skill of the attorneys; the number of appearances involved; the intricacies of the facts involved; the diligence and skill of counsel; and the court’s own knowledge. Id.

At the hearing on the motion for summary judgment, counsel for Carole stated that she had worked thirty-one hours on this case and her bill was $5,500. She requested that this fee be awarded. After granting the motion for summary judgment, counsel inquired as to the request for attorney’s fees and the court responded “I’m going to grant that also.” Thus, the record is void as to any indication that the trial court took into account the factors to be considered in making this award of attorney’s fees. Accordingly, this matter is remanded for a determination of the appropriate amount of attorney’s fees to be awarded.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment is affirmed. The portion of the judgment awarding of attorney’s fees is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.

\,(AFFIRMED IN PART; REVERSED IN PART; MATTER REMANDED


author: KING, Justice, for The Court:

text:
    TRUSTMARK NATIONAL BANK d/b/a Credit Card Center v. ROXCO LTD.
    No. 2009-CA-00559-SCT.
    Supreme Court of Mississippi.
    Dec. 8, 2011.
    As Modified on Denial of Rehearing March 22, 2012.
    Christopher A. Shapley, William ‘Trey’ Jones, III, Jackson, attorneys for appellant.
    James A. Bobo, Brandon, Precious Tyrone Martin, Sr., attorneys for appellee.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   KING, Justice, for The Court:

¶ 1. Roxco, Ltd., was hired as the general contractor for several public-construction projects for the State of Mississippi, including four building projects at the University of Mississippi, Jackson State University, and Alcorn State University. State law requires that a certain percentage of the cost of construction be retained to ensure completion. However, Mississippi Code Section 31-5-15 (Rev.2010) allows the contractor to access that retain-age by depositing with the State other acceptable security. Pursuant to Section 31-5-15, in order to access the retainage on its state-construction projects, Roxco substituted securities valued at $1,055,000. These securities were deposited in a safekeeping account at Trustmark National Bank. Upon being notified of Roxco’s default, the State instructed Trustmark to transfer the funds from the treasury bills into the state treasury account. By letter, Roxco directed Trustmark not to transfer the funds from the treasury bills to the State’s account. Notwithstanding Roxco’s letter, Trustmark deposited the funds into the State’s account. Roxco filed suit against Trustmark for breach of contract and conversion in Hinds County Circuit Court. Trustmark argued that Section 31-5-15 permitted the release of the funds in the safekeeping account. A jury found in favor of Roxco and awarded $3,720,000 in damages. Aggrieved, Trustmark filed this appeal. Finding that the trial court should have granted the motion for judgment notwithstanding the verdict, we reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roxco is a former construction company, owned and operated by Benjamin Turnage, that contracted with the State to perform various public-construction projects throughout the State. In 1994, Roxco hired David Carter, a former employee of Trustmark, to act as its chief financial officer. Based on Carter’s recommendation, on April 26, 1996, Roxco opened a safekeeping account at Trust-mark. The safekeeping account was opened to purchase and hold treasury bills. The agreement governing the safekeeping account clearly stated that the “Bank will follow the specific written instruction of the depositor.” During his employment, Carter was authorized to interact with Trustmark concerning Roxco’s safekeeping account.

¶ 3. Throughout the next four years (1994-1998), Roxco was hired as the general contractor for numerous public-construction projects for the State, including four building projects at the University of Mississippi, Jackson State University, and Alcorn State University. During construction, Roxco attempted to substitute securities (certificates of deposit/treasury bills), pursuant to Mississippi Code Section 31-5-15, in lieu of the retainage being withheld by the State.

¶ 4. In order to effect this substitution of securities in lieu of the retainage, by letter dated April 11, 1996 Roxco authorized Trustmark to accept for safekeeping a United States Treasury bill and directed that the safekeeping receipt be sent to the State Treasurer’s Office. During the next several years, many similar and related documents were exchanged among Roxco, the Bureau of Buildings within the State Department of Finance and Administration Bureau, and Trustmark for this same purpose. With each transaction, Trust-mark entered on its books, and on the face of each treasury bill, that the securities were pledged to the State. Trustmark generated and provided, to both Roxco and the State, written safekeeping receipts, which reflected that the treasury bills were pledged to the State. It provided to the parties a monthly report of the safekeeping account, which reflected the specific treasury bills pledged to the State in lieu of retainage for specific contracts, information on the substitution of additional collateral when new contracts were secured, and the specific treasury bills purchased as replacements for matured treasury bills.

¶ 5. Early in 1998, Roxco began having a dispute with its bond company, American Home Assurance Company. In October 1998, in a step towards resolution, Roxco agreed to write letters of default, to be held in trust by American Home Assurance Company, as a condition of receiving a $2,000,000 credit line. Only one month later, in November 1998, Roxco’s bond company mailed the default letters to the State. The State received the default letters, which were on Roxco’s company letterhead and signed by its president, informing it that Roxco “is in default” and that Roxco “irrevocably and voluntarily abandons and terminates” the four projects at the public universities. The State accepted the letters as Roxco’s voluntary default on the projects. At trial, Roxco claimed that the default letters were sent by its bond company and were “bogus.” However, in November 1998, Roxco ceased work on all of the state construction projects.

¶ 6. On April 9, 1999, the Bureau wrote then-State Treasurer Marshall Bennett and asked that he notify Trustmark of Roxco’s default and the need for the $1,055,000, the amount pledged in lieu of retainage, to be deposited into the State’s account. On April 12, 1999, Bennett forwarded the letter and the written receipts for the funds at issue to Trustmark and directed Trustmark to deposit the funds into the State’s account to be used to complete the four projects.

¶7. On April 14, 1999, after learning that State was attempting to collect the funds, Steve Williams, attorney for Roxco, notified Trustmark that the funds at issue were subject to a security agreement between Roxco and First Tennessee Bank and objected to the release of the funds to anyone other than First Tennessee Bank or Roxco.

¶ 8. On April 21, 1999, Trustmark officials met with State officials, including Bennett, and were provided copies of the default letters, which were signed by Rox-co and stated unequivocally that Roxco had irrevocably and voluntarily defaulted and abandoned the contracts. Trustmark complied with the State’s request and deposited the funds into the State’s account.

¶ 9. On April 2, 2002, Roxco filed suit against Trustmark in Hinds County Circuit Court for breach of contract, conversion, negligence, breach of duty of good faith and fair dealing, and breach of a fiduciary relationship. A jury found in favor of Roxco and awarded $8,720,000 in damages.

DISCUSSION

¶ 10. Trustmark raises the following issues on appeal: (1) Whether the trial judge erred in failing to grant Trustmark’s motions for directed verdict and judgment notwithstanding the verdict; (2) whether the trial judge erred in failing to grant Trustmark a new trial, given the overwhelming evidence contrary to the jury’s verdict; (3) whether the trial judge granted erroneous jury instructions; (4) whether Trustmark should be granted a new trial because the trial judge allowed inadmissible evidence and excluded admissible evidence; (5) whether the trial judge erred in failing to grant Trustmark’s request for a setoff against the jury verdict from Rox-co’s prior recovery in the settlement of the suit against the bonding company; and (6) whether the trial judge committed reversible error in failing to grant Trustmark’s request for a remittitur.

1. Directed Verdict and Judgment Notwithstanding the Verdict

¶ 11. Trustmark’s first issue can be resolved by determining whether Mississippi Code Section 81-5-15 permitted Trustmark to release the funds within the safekeeping account to the State. If Section 31-5-15 permitted the release of funds to the State, Trustmark cannot held be liable for breach of contract or conversion.

¶ 12. Mississippi Code Section 31-5-15 states:

Under any public contract heretofore or hereafter made or awarded by the State of Mississippi, or any agency or department of the State of Mississippi, or by any political subdivision thereof, the contractor may, with the written consent of his or its surety, from time to time, withdraw the whole or any portion of the amount retained from payments due the contractor pursuant to the terms of the contract by depositing with the State Treasurer of the State of Mississippi, or the treasurer or secretary of the political subdivision of the State of Mississippi holding funds belonging to the contractor, the following security, or any combination thereof in an amount equal to or in excess of the amount so withdrawn, said securities to be accepted at the time of deposit at market value but not in excess of par value, to wit:
(1) U.S. Treasury Bonds, U.S. Treasury Notes, U.S. Treasury Certificates of Indebtedness, or U.S. Treasury Bills, or
(2) Bonds or notes of the State of Mississippi, or
(8) Bonds of any political subdivision of the State of Mississippi, or
(4) Certificates of deposit issued by commercial banks located in the State of Mississippi, provided that such certificate is negotiable or is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or of the treasurer or the secretary of the political subdivision involved, or
(5) Certificates of deposit issued by savings and loan associations located in the State of Mississippi, the accounts of which are insured by the Federal Savings and Loan Insurance Corporation, or whose accounts are insured by a company approved by the State Board of Savings and Loan Associations, provided that such certificate is made payable with accrued interest on demand and is accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State of Mississippi or the treasurer or secretary of the political subdivision involved, and provided that any such certificate from any of the savings and loan associations referred to in this subpara-graph shall not be for an amount in excess of the maximum dollar amount of coverage of the Federal Savings and Loan Insurance Corporation.
The agency or department of the state shall notify the State Treasurer of the amount of deposit required and shall also notify the State Treasurer when to release the deposit. The political subdivision of the state shall notify its treasurer or secretary of the amount of deposit required and shall also notify him when to release the deposit.
The State Treasurer, or the secretary or treasurer of the political subdivision holding said security, shall, from time to time, collect all interest or income on the security so deposited and shall, by and with the written consent of contractor’s surety, pay the same when and as collected to the contractor or contractors who deposited said obligations. If the deposit be in the form of coupon bonds, the coupons as they respectively become due shall be delivered to the contractor. If in the event of an overpayment to a contractor the contracting authority is unable to obtain reimbursement for such overpayments from the contractor, the chief administrative officer of the contracting authority shall notify the contractor, its surety and the State Treasurer or other holder of the security, of the nature of the overpayment and of the failure to obtain reimbursement. Upon such notification, the security holder shall retain the income on the deposited security until an amount equal to the overpayment is accumulated and paid to the contracting authority.
In the event the contractor shall default in the performance of the contract or any portion thereof, the securities deposited by him in lieu of retainage and all interest and coupons and income accruing on said securities after said default may be sold by the state or any agency or department thereof, or any political subdivision, and the proceeds of said sale used as if such proceeds represented the retainage provided for under the contract.

Miss.Code Ann. § 31-5-15 (Rev.2010).

¶ 13. This appeal concerns the interpretation of a statute, which is a question of law that we review de novo. Finn v. State, 978 So.2d 1270, 1272 (¶ 6) (Miss.2008). This Court has stated the following rule regarding the interpretation of a statute:

We will not engage in statutory interpretation if a statute is plain and unambiguous. However, statutory interpretation is appropriate if a statute is ambiguous or is silent on a specific issue. In either case, the ultimate goal of this Court is to discern the legislative intent. The best evidence of legislative intent is the text of the statute; the Court may also look to the statute’s historical background, purpose, and objectives. If a statute is ambiguous, it is this Court’s duty to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.

Buffington v. Miss. State Tax Comm’n, 43 So.3d 450, 454 (¶ 13) (Miss.2010) (citation omitted).

¶ 14. Roxco argued, and the trial court agreed, that Section 31-5-15 did not apply to the contract between Trustmark and Roxco. Roxco argued that the requirements of the statute were not met for the State to take control of the securities. Roxco argued that no securities were deposited with the State Treasurer and that Roxco did not default on the construction projects. In order to effectuate Section 31-5-15, the State Treasurer does maintain some securities in his vault. However, the majority of these securities are maintained by commercial-banking institutions, with whom the State has entered into service contracts to provide safekeeping accounts. The safekeeping accounts allow the banks to hold securities on behalf of the State. A contractor may then select a bank, authorized to hold securities on behalf of the State, in which to open a safekeeping account.

¶ 15. Trustmark argues that its performance was consistent with Roxco’s understanding and expectations with respect to the funds in the safekeeping account. This was consistent with testimony from Roxco personnel. Roxco’s former Chief Financial Officer Carter, who signed the safekeeping-account agreement, testified that, while acting in his authorized capacity for Roxco, he pledged the funds in the safekeeping account to the State under Section 31-5-15. Carter further testified that it was his understanding that, once the funds were pledged, Roxco forfeited the right to have the funds back without the State’s permission. Carter’s successor as Roxco’s Chief Financial Officer, H.G. Morgan, provided the same testimony.

¶ 16. The language of Section 31-5-15 is clear and unambiguous, and our rules of statutory construction insist that the best evidence of the Legislature’s intent is the text of the statute. The Legislature enacted Section 31-5-15, which specifies the procedure a contractor must use to substitute securities in lieu of retainage fees being withheld on a government contract. In order to obtain a release of the retain-age, the statute requires a contractor to deposit funds with the State Treasurer, or to deposit a certificate of deposit issued by a commercial bank provided that the certificate is negotiable or accompanied by a power of attorney executed by the owner of the certificate in favor of the Treasurer of the State.

¶ 17. In this case, the deposit requirements of Section 31-5-15 were met. It is true that the treasury bills were not physically delivered to the state treasurer himself. However, under the State’s agreement with Trustmark to serve as a safekeeper of securities, Trustmark became the agent of the State. Under general principles of agency law, delivery to the agent is delivery to the principle. But additionally, Roxco gave written instructions to Trustmark pledging these securities to the State of Mississippi pursuant to Section 31-5-15. Roxco having done so, Trustmark entered a notation on the securities, specifying that they were pledged to the State of Mississippi.

¶ 18. The term “pledged” has several definitions, among them, “delivery of goods or personal property as security for a debt or obligation.” American Heritage Dictionary 1956 (3d ed.1992). “Pledged” has also been defined as “a bailment or delivery of goods or property by way of security for a debt or engagement, or as security for the performance of an act.” Black’s Law Dictionary (6th ed.1990). The meanings of “deposit” include: “The giving of the possession of personal property by one person to another, with his consent to keep for the use, benefit, and safekeeping of the first or of a third person.” Black’s Law Dictionary (6th ed.1990).

¶ 19. Under these definitions and the facts of this case, the formal pledging of the treasury bills to the State of Mississippi was effective as delivery and compliance with Section 31-5-15. Having obtained effective delivery of the securities, upon default, the State of Mississippi was authorized to receive those funds substituted for the retainage.

¶ 20. Roxco argues that, contrary to its orders, Trustmark released the pledged funds to the State of Mississippi and is therefore indebted to it. However, once Roxco pledged and effectively delivered those funds to the State, it lost control of them and could take no action to control them without the permission of the State.

¶ 21. Accordingly, the trial judge improperly denied Trustmark’s motions for a directed verdict and judgment notwithstanding the verdict. Because we find dis-positive error here, all other issues are moot.

CONCLUSION

¶ 22. Based on this discussion, we reverse and render the judgment of the trial court.

¶ 23. ON DIRECT APPEAL: REVERSED AND RENDERED. ON CROSS-APPEAL: DISMISSED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ„ CONCUR. PIERCE, J., NOT PARTICIPATING.

      . Roxco filed a cross-appeal with this Court regarding the trial court's denial of Roxco’s motion to reconsider ruling on punitive damages and Roxco's motion for attorneys’ fees, costs and expenses. In response, Trustmark filed a motion to dismiss Roxco's cross-appeal. Based on the Court’s disposition in the case, the cross-appeal and motion to dismiss are now dismissed as moot.

      . Roxco no longer works within the construction industry.

      . Once pledged, the following language was entered on the face of the treasury bill:
      PLEDGED TO:
      TREASURER, STATE OF MISSISSIPPI FOR THE BUREAU OF BUILDINGS, GROUNDS AND REAL PROPERTY MANAGEMENT.


author: LAMAR, Justice, for the Court:

text:
    Ruth FREDERICKS, M.D. and J. Martin Tucker, M.D. v. C. Eric MALOUF, Kristine K. Malouf Individually and on Behalf of Kimberly Malouf, A Minor on Motion for Rehearing.
    No. 2009-IA-01181-SCT.
    Supreme Court of Mississippi.
    Jan. 19, 2012.
    Diane V. Pradat, L. Carl Hagwood, Whitman B. Johnson, III, Kristi D. Kennedy, Jackson, attorneys for appellants.
    Michael J. Malouf, Jr., Michael J. Mal-ouf, Sr., William Walker, Jr., Jackson, attorneys for appellees.
   LAMAR, Justice, for the Court:

¶ 1. The motion for rehearing filed by Ruth Fredericks, M.D., is denied. The motion for rehearing filed by J. Martin Tucker, M.D., is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶ 2. Kristine Malouf took the drug Depa-kote to control her seizures both before and during her pregnancy. While Kristine gave birth to a seemingly healthy child in March 1997, she and her husband eventually discovered the child had brain damage. They contend that Kristine’s treating physicians negligently caused this damage and other injuries to their child.

¶ 3. In 2002, the Maloufs filed a complaint in Hinds County against Dr. Ruth Fredericks, a neurologist; and in 2006, they filed an amended complaint adding Dr. J. Martin Tucker, Jr., an obstetrician-gynecologist (“Defendants”). After the Maloufs joined Dr. Tucker, the Defendants moved to transfer venue to Rankin County. The trial court denied the motion to change venue, finding the Defendants had abandoned it. We granted the Defendants’ interlocutory appeal to determine whether the trial court erred in its ruling on venue. We affirm the trial court’s finding that the Defendants abandoned their right to contest venue.

Facts

¶ 4. In 1994, Dr. Fredericks began treating Kristine Malouf for seizures with a prescription for Depakote. In November 1995, Kristine and her husband met with Dr. Fredericks to discuss the risks and complications associated with pregnancy, epilepsy, and Depakote. Dr. Fredericks referred Kristine to Dr. Tucker for additional preconception counseling regarding her seizure disorder and Depakote. The Maloufs first met with Dr. Tucker in December 1995 for this preconception counseling.

¶ 5. Kristine discovered she was pregnant on July 28, 1996. Dr. Fredericks remained Kristine’s neurologist until November 1996, while it appears that Dr. Tucker treated Kristine throughout her pregnancy. On March 20, 1997, Kristine gave birth to a seemingly healthy girl, Kimberly Malouf. But at twenty-two months, Kimberly was diagnosed with per-iventricular leukomalacia, a type of brain injury. And in 2005, a geneticist diagnosed Kimberly with valproate syndrome caused by exposure to Depakote.

Procedural History

¶ 6. On December 31, 2002, the Maloufs, individually and on behalf of Kimberly, filed a complaint against Dr. Fredericks in the Circuit Court of the First Judicial District of Hinds County. They averred that Dr. Fredericks was negligent in prescribing insufficient amounts of Depakote during pregnancy and as a result, Kristine suffered multiple seizures throughout her pregnancy that allegedly caused permanent brain damage to Kimberly. With leave of the court, the Maloufs filed an amended complaint on May 5, 2006. In this complaint, they named as defendants Dr. Fredericks and Dr. Tucker, and they added an averment that Kimberly’s brain damage was caused by the Depakote itself. The Maloufs asserted all claims against both doctors.

¶ 7. In response to the amended complaint, Dr. Tucker moved to change venue to Rankin County, or in the alternative, to sever the claims against him and transfer them to Rankin County. He argued that the version of Mississippi Code Section 11-11-3 that was effective at the time of the amended complaint governed, and that all counseling and subsequent treatment had occurred at his Rankin County office. Dr. Fredericks joined Dr. Tucker’s motion. The record shows that Dr. Tucker filed a notice of hearing for the motion set for August 15, 2006.

¶ 8. In response to the Defendants’ motion, the Maloufs asserted that venue was proper at the time they commenced the action, and that the amended venue statute is inapplicable. They argued that venue is proper in Hinds County because Dr. Fred-ericks resides in Hinds County, has an office in Hinds County, and treated the Maloufs in Hinds County. They claimed that venue was proper at the time the action was filed, and it remained proper after they added Dr. Tucker as a defendant.

¶ 9. It was not until February 20, 2009, that Dr. Tucker filed a supplemental joint motion for change of venue. Dr. Freder-icks joined this motion. The trial court denied the requested relief, finding the Defendants had abandoned their motion to change venue by failing to renew or pursue the motion until February 20, 2009. The trial court also noted that the parties had engaged in discovery for three years, and at least three trial dates had been set before the Defendants renewed the motion. The trial court found that the Defendants failed to renew the motion until after the deadline set for all motions. Following the circuit court’s order, the Defendants filed this interlocutory appeal.

Discussion

¶ 10. This Court defers to the trial court’s findings regarding waiver and abandonment. So we apply an abuse-of-discretion standard to the trial court’s findings.

¶ 11. The Defendants argue that the venue statute in effect when the amended complaint was filed governs this action, and that venue under this statute is nonwaivable. In support of their argument, the Defendants rely on the statutory language “[A]ny action against a licensed physician ... for malpractice ... shall be brought only in the county in which the alleged act or omission occurred.” They argue that, under this statute, venue can be only in Rankin County, contending that all acts of alleged negligence occurred only in that county.

¶ 12. However, the venue statute in effect when the Maloufs filed their original complaint did not contain a subsection specific to malpractice actions. Notably, neither Defendant argues that venue was improper when the original complaint was filed in Hinds County. And in fact, Dr. Fredericks concedes venue was proper in Hinds County at the time the original complaint was filed.

¶ 13. The language in effect at the time the Maloufs filed their amended complaint does not support the Defendants’ position that venue cannot be waived. Many of our statutes, including those governing the statute of limitations, contain similar, mandatory language. We have never held that such language prevents a litigant from waiving a right.

¶ 14. In this case, the parties entered into an agreed scheduling order by which a June 28, 2007, deadline governed all pretrial motions. As the proponents of the motion, the Defendants had the burden to timely pursue their motion before the June 28, 2007, deadline. We have ruled:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril.

¶ 15. However, the Defendants argue that the trial court abused its discretion by prohibiting them from obtaining a hearing on their motion to change venue. In support of this argument, the Defendants point to the trial court’s local rule that provides “Hearings are not automatically granted ... [sjhould the court require a motion hearing, the party filing the motion shall be notified by the court.” Dr. Tucker argues that he attempted to obtain another hearing date after canceling the August 15, 2006, hearing and points to email correspondence with the trial court’s administrator as evidence of such efforts.

¶ 16. We first note that the trial court’s local rules are in derogation of Mississippi Rule of Civil Procedure 83, because they have never been submitted to this Court for approval. Furthermore, the local rule at issue in this case potentially conflicts with Mississippi Rule Civil Procedure 12(d), which provides that a motion for improper venue “shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.” The trial court cannot enforce any rule to the contrary. Having said that, we emphasize that the trial court’s rule did not prohibit the Defendants from requesting a hearing; there is no evidence the trial court would not consider such a request; and no order exists denying such. And the Defendants did not request another hearing date until September 25, 2008, two years after the initial hearing was canceled. Furthermore, the Defendants actively participated in the litigation process for three years without pursuing their motion or seeking a ruling from the trial court. Venue is an affirmative right that generally may be waived or abandoned. This Court has ruled that “[w]hat is important is that venue needs to be settled early on.” Therefore, we cannot say that the trial judge abused her discretion when she found the Defendants had waived their right to contest venue by waiting three years to pursue their motion.

Conclusion

¶ 17. Venue is a right that must be timely asserted and pursued. The trial court did not abuse its discretion by finding the Defendants had abandoned their motion to contest venue. We remand this case for further proceedings consistent with this opinion.

¶ 18. AFFIRMED AND REMANDED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      . The last trial date was set for August 10, 2009.

      . See MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006).

      . When the Maloufs filed their amended complaint, Section 11-11-3 had been amended specifically to address actions filed against physicians: "[A]ny action against a licensed physician ... for malpractice, negligence, error, omission, mistake, breach of standard of care or the unauthorized rendering of professional services shall be brought only in the county in which the alleged act or omission occurred.” Miss.Code Ann. § 11-11-3(3) (Rev.2004) (emphasis added).

      . Miss.Code Ann. § 11-11-3(3) (Rev.2004).

      . This prior version of the venue statute provided that:
      Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue .... If a civil action is brought in an improper county, such action may be transferred to the proper county pursuant to section 11-11-17.
      Miss.Code Ann. § 11-11-3 (Rev.2002).

      . Bowie v. Montfort Jones Mem'l Hosp., 861 So.2d 1037, 1042 (Miss.2003)

      . Miss. R. Civ. P. 83.

      . Miss. R. Civ. P. 12(b), (d) (emphasis added).

      . MS Credit Ctr. v. Horton, 926 So.2d 167, 179 (Miss.2006).

      . Martin v. State, 354 So.2d 1114, 1119 (Miss.1978) (finding defendant waived and abandoned motion for change of venue by failing to obtain ruling from court); see also Miss. R. Civ. P. 12(h)(1); see generally Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992) ("[W]e regard venue a right as valuable to the defendant as to the plaintiff.”).

      . Tanksley, 608 So.2d at 1155.