author: GENOVESE, Judge. GENOVESE, Judge.

text:
    Jerry J. SUIRE and Antonia G. Suire, et al. v. OLEUM OPERATING COMPANY, L.C.
    No. 13-736.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2014.
    Opinion on Rehearing April 9, 2014.

      Joseph P. Hebert, Paul Matthew Jones, Brian W. Capell, Liskow & Lewis, Lafayette, Louisiana, for Defendants/Appellants Oleum Operating Company, L.C. and AKSM, L.C.
    Michael G. Hodgkins, Jere Jay Bice, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, Louisiana, Charles R. Min-yard, Lafayette, Louisiana, for Plaintiffs/Appellees Jerry J. Suire and Antonia G. Suire, Plaintiff in Reconvention/Appel-lee J & J Onshore Production, Inc.
    J. Clayton Johnson, Brett P. Furr, Edward D. Hughes, Taylor, Porter, Brooks, & Phillips, LLP, Baton Rouge, Louisiana, for Intervenors/Appellees Preston Andrews Price and Susan R. Price and Steven Haller and Paula Haller.

      Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this suit for damages arising out of a mineral lease, the current operators/lessees, Oleum Operating Company, L.C. and AKSM, L.C., appeal the trial court judgment in favor of the overriding royalty interest owners, Jerry J. and Antonia G. Suire, Preston Andrews and Susan R. Price, and Steven and Paula Haller. The overriding royalty interest owners and J & J Onshore Production, Inc., a previous operator/lessee, have all answered the appeal. For the following reasons, we affirm in part, affirm in part as amended, and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation involves the alleged failure of Oleum Operating Company, L.C. and AKSM, L.C. (collectively referred to as Oleum) to pay the overriding royalty interest (ORI) due Jerry J. and Antonia G. Suire, Preston Andrews and Susan R. Price, and Steven and Paula Haller (collectively referred to as ORI owners). The property subject to the mineral lease at issue is located in Calcasieu Parish, and the owner/lessor of the property is Sweet Lake Land & Oil Company (Sweet Lake). The current operator/lessee is Oleum. The present parties’ interests stem from the execution of a mineral lease in 1947 by Sweet Lake and J.A. Bonham.

Since 1947, there have been several different operators/lessees of the property owned by Sweet Lake. A portion of the ORI at issue in this litigation was created in 1989, when Flash Oil & Gas granted an ORI to its owners, Preston Price and Steven Haller (and their wives Susan R. Price and Paula Haller), collectively | ^mounting to 2.0153%, and a 3% ORI to Jerry Suire. In later years, J & J Onshore Production, Inc. (J & J) became the operator/lessee of the Old Lease, and it continued to pay the ORI to the Flash Overrides.

Over time, the relationship between Sweet Lake and J & J, particularly Mr. Suire, became strained, and, in 2000, Sweet Lake sued J & J, claiming that the Old Lease was terminated. In that litigation, Sweet Lake also alleged that J & J failed to pay royalties, failed to develop the property, and failed to produce oil and gas in paying quantities. During this contentious period, Oleum became involved when it purchased J & J’s operating interest and assigned an additional ORI to Mr. Suire. Ultimately, in 2003, a settlement agreement was reached between Sweet Lake, J & J, and Oleum wherein the terms, rights, and obligations of the parties under the Old Lease were changed. For five years thereafter, Oleum continued as operator/lessee until further disputes arose between it and Sweet Lake in 2008.

In 2008, Sweet Lake sent a letter to Oleum, claiming that it violated the terms of the 1947 Amended Lease. Sweet Lake demanded that Oleum vacate the property and return all fruits derived from the 1947 Amended Lease, dating back to 2003. At this juncture, negotiations ensued between Sweet Lake and Oleum. As a result of these negotiations, on July 2, 2008, Oleum unilaterally executed an Act of Release of Oil, Gas and Mineral Lease thereby releasing the 1947 Amended | oLease. The 2008 Release was executed without the knowledge of the ORI owners, who, as a result thereby, were divested of all of their ORI. Also on July 2, 2008, another lease was entered into by Oleum, through Mike Snell, an owner and operator. Notably, Mr. Snell transferred the divested ORI owners’ rights to himself, personally, in the New Lease. The consequences of the 2008 Release and the New Lease are at the heart of the current litigation.

According to Oleum, “Mr. Snell was able to fashion a release of the Old Lease and the creation of a new one.” The New Lease was more onerous and less profitable to Oleum, but was necessary for it to avoid what it perceived to be a “disastrous potential liability[.]” Oleum describes a “distinct break between the Old Lease and the New Lease ... driven by an aggressive landowner with enormous leverage under the circumstances.” Crucial to the claims of “bad faith” raised by the ORI owners in this litigation, Oleum argues that “it was those circumstances, and those alone, that led to the New Lease.” This characterization is critical to the present claims in that Oleum concludes that “[w]hen the Old Lease ceased to exist[,] so did [the] overriding royalty interests]. Nevertheless, [the ORI owners] seek money damages equal to the value of the override as though it attached to the New Lease.”

In contrast, the ORI owners describe the actions of Mr. Snell, culminating in the New Lease in 2008, quite differently. Initially, they assert that production was continuing on a lease that had “never terminated” when Sweet Lake made a demand on Oleum in 2008, “making the same allegations they had in 2003.” The ORI owners posit that although “[i]n 2003 Oleum successfully refuted these |4unfounded allegations[,]” in 2008, it “took positive action to terminate a valid lease.” Specifically, they argue that Oleum, through Mr. Snell, saw Sweet Lake’s demand “as an opportunity to release the existing lease and enter a new lease rather than amend the existing lease as had been done in 2003[,]” all to their detriment. Moreover, they argue that an agreement as to the terms of the 2008 Release was reached between Oleum and Sweet Lake, the result of which was an attempt “to eliminate the rights of the overriding royalty interests which attached to the 1947 Amended Lease.” Notably, as a result of the New Lease, what was once their ORI was transferred to Mr. Snell personally and “resulted in significant personal financial gain at [their] expense^]” Again, germane to the issue of “bad faith,” the ORI owners conclude that Oleum, “acting through Mike Snell, released the 1947 Amended Lease motivated by anger, ill will, and hatred ... and by a desire to take the revenues attributable to the [ORI owners] for themselves.”

In the interim, following the 2003 settlement agreement, Oleum had continued to pay the ORI owners as had been done since it became an operator/lessee in 2000. However, in June 2007, Oleum terminated all payments of the 1.98% ORI (the Suire Override) on the grounds that the 2008 settlement agreement triggered a proportionate reduction clause (PRC) contained in the conveyance documents of the assignment of the Old Lease from J & J to Oleum. Then, in February 2008, Oleum terminated payment of Mr. Suire’s 3.0% ORI without explanation. Finally, in March 2008, the ORI of the Prices and the Hallers were terminated by Oleum.

|fiWhat follows is a chronology of events occurring from the institution of the Old Lease through the scenario existing as of 2008 that are relevant to this litigation:

DATE DOCUMENT
4/10/1947 Original 1947 J.A. Bonham Mineral Lease (Old Lease) Sweet Lake to J.A Bonham
9/1/1989 Assignment & Bill of Sale 9/1/1989 Assignment & Bill of Sale & Conveyance BP Exploration, Inc. to Jerry Suire Jerry Suire to Flash Oil & Gas
9/1/1989 Assignment of ORI (Flash Override) 5/23/1991 Assignment of ORI (Flash Override) Flash Oil & Gas to Jerry Suire-ORI of 3% Flash Oil & Gas to Preston A Price and Susan Price-ORI of 1.007650% Steven Haller and Paula Haller-ORI of 1.007650%
5/15/2000 Purchase and Sale Agreement J & J to Oleum
5/24/2000 Assignment & Bill of Sale J & J to Oleum
6/14/2000 Assignment of ORI (Suire Override) Oleum to Jerry Suire-ORI of 1.98%
5/28/2003 Amendment to Lease (1947 Amended Lease) Sweet Lake and Oleum
5/28/2003 Settlement Agreement and Release Sweet Lake, Oleum, and J & J
7/5/2005 Assignment & Bill of Sale Oleum to AKSM
7/5/2005 Assignment of ORI Oleum to Mike Snell-ORI of 5%
7/2/2008 Conveyance of NRI to the 1947 J.A. Bonham Lease AKSM and Oleum to several persons including Mike Snell individually ORI of 10%
| «7/2/2008 Act of Release (2008 Release) AKSM and Oleum
7/2/2008 New Oil and Gas Lease (New Lease) Sweet Lake to AKSM
7/29/2008 Act of Correction to Release AKSM and Oleum
PARTIES

Purportedly, the foregoing culminated in the 2008 Release by Defendants, Oleum and AKSM, of what was originally the 1947 mineral lease in which Plaintiffs, Jerry and Antonia Suire, and Intervenors, Preston Andrews and Susan R. Price and Steven and Paula Haller, had an ORI. Once released, a New Lease was entered into by Sweet Lake and AKSM, which wholly eliminated these ORIs and gave Mr. Snell, personally, a 10% ORI in the mineral lease.

As a result of these events, suit was instituted by the Suires against Oleum and AKSM, initially seeking unpaid ORI, penalties, and attorney fees. After the initial petition was filed, a number of incidental demands were made by and against the various parties. Claims of intervention were asserted by the Prices and the Hal-lers for their unpaid ORI, penalties, and attorney fees. Oleum filed a reconventional demand against the Suires, asserting that it was entitled to an offset and/or recoupment of ORI payments made to Mr. Suire and, further, that their ORI was subject to a reduction based upon the PRC. Oleum later supplemented its re-conventional demand against the Suires, seeking damages for a misrepresentation of the condition of the C-8 wellbore.

Oleum also filed a third party claim against J & J, claiming that it was entitled to a reimbursement of the ORI payments erroneously made to J & J. Alternatively, Oleum asserted that if it were determined that it had improperly taken certain offsets, that these amounts were still owed by J & J to Oleum. Claims were also made against J & J for damages relative to the C-8 wellbore.

|7J & J filed a reconventional demand against Oleum, alleging that Oleum breached the terms of their May 15, 2000 Purchase and Sale Agreement, whereby J & J sold its interest in the 1947 Amended Lease to Oleum by failing to pay Mr. Suire his 1.98% ORI and in failing to provide J & J notice of its attempt to release the lease. Further, J & J contended that Oleum’s failure to obtain J & J’s agreement was a breach of the 2003 settlement agreement.

Action of the Trial Court

After a trial on the merits, the trial court recited oral reasons for judgment in favor of the ORI owners and dismissed the other ancillary claims between the parties. In accordance therewith, the trial court signed a judgment October 15, 2012, which provides, in pertinent part, as set forth below:

Claims of Jerry and Antonia Suire against Oleum and AKSM

(1) Judgment is rendered in favor of Jerry and Antonia Suire against Ole-um and AKSM “jointly, severally[,] and in solido,” for the sum of $288,282.79, “together with judicial interest accruing from the date each payment was due until paid on all past due royalty owed[,] which amount totals $66,918.96 through and including September 7, 2012.”
(2) Judgment is rendered in favor of Jerry and Antonia Suire against Ole-um and AKSM “jointly, severally, and in solido[,]” for the sum of $868,872.48, “together with judicial interest from [the] date of judicial demand of October 15, 2008, which amount totals $156,098.01 through and including September 21, 2012.”
(3) Judgment is rendered denying the Suires’ claim for penalties and attorney fees.

Claims of Steven and Paula Haller against Oleum and AKSM

(1) Judgment is rendered in favor of Steven Haller against Oleum and AKSM “jointlyf,] severally[,] and in solido,” for the sum of $101,378.00, “together with judicial interest accruing from the date each payment was due until paid on all past due royalty owed .and judicial interest on all damages from the date of judicial Isdemand of July 16, 2010[,] which amount totals $10,578.61 through and including September 21, 2012.”
(2) Judgment is rendered in favor of Paula Haller against Oleum and AKSM “jointly!,] severally!,] and in solido,” for the sum of $101,878.00, “together with judicial interest accruing from the date each payment was due until paid on all past due royalty owed and judicial interest on all damages from the date of judicial demand of July 16, 2010[,] which amount totals $10,578.61 through and including September 21, 2012.”
(3) Judgment is rendered denying the Hallers’ claim for penalties and attorney fees.

Claims of Preston Andrews and Susan R. Price against Oleum and AKSM

(1) Judgment is rendered in favor of Preston Andrews and Susan R. Price against Oleum and AKSM “jointly!,] severally!,] and in solido,” for the sum of $202,857.00, “together with judicial interest accruing from the date each payment was due until paid on all past due royalty owed and judicial interest on all damages from the date of judicial demand of July 16, 2010[,] which amount totals $21,157.15 through September 21, 2012.”
(2) Judgment is rendered denying the Prices’ claim for penalties and attorney fees.

Third Party Claim of Oleum against J & J

Judgment is rendered denying the third party claim.

Reconventional Demand of Oleum against Jerry and Antonia Suire

Judgment is rendered denying the re-conventional demand.

Reconventional Demand of J & J against Oleum

Judgment is rendered denying the re-conventional demand.

Supplemental Reconventional Demand of Oleum against J & J

Judgment is rendered denying the supplemental reconventional demand.

Oleum filed a Motion for New Trial, which was denied by the trial court pursuant to judgment of February 20, 2013. Oleum has appealed the October 15, 2012 judgment from the trial on the merits as well as the February 20, 2013 | Judgment denying its Motion for New Trial. Additionally, the ORI owners and J & J have all answered the appeal.

ASSIGNMENTS OF ERROR

OLEUM’S APPEAL

On appeal, Oleum presents the following assignments of error for our review:

1. The trial court erred in awarding damages to [the ORI owners] based on Oleum and AKSM’s release of the Old Lease. [The ORI owners] did not negotiate an anti-washout provision into their [ORI] and are not entitled to the protection an anti-washout provision provides no matter what theory of recovery they advance.
2. The trial court erred in allowing [the ORI owners] to introduce parol evidence to support their claim based on the [ORI], which are incorporeal immovables. [The ORI owners] are not able to prove such a right based on the four corners of the relevant contracts and are not allowed to rely upon parol evidence to prove otherwise.
3. The trial court erred in finding that Oleum acted in bad faith toward [the Suires] by releasing the Old Lease when the evidence proves that Ole-um released the Old Lease for self[-]preservation, not to relive [sic] itself of the burden of the [ORI].
4. The trial court erred in finding that Oleum and AKSM acted in bad faith toward [the Prices and the Hallers] when [they] did not even attempt to introduce evidence that the Old Lease was released with any ill-will towards them — rather, they see themselves as “collateral damage.”
5. The trial court erred in determining that Oleum and AKSM are solidarily liable on [the Suires’] claim for damages due to the release of the Old Lease.
6. The trial court erred in determining that the proportionate reduction clause was not applicable to [the Suires’ 1.98% ORI].

Jj^SUIRES’ ANSWER TO APPEAL

On appeal, the Suires present the following assignments of error for our review:

1.The [t]rial [c]ourt committed legal error when it failed to award penalties and attorney fees for [Oleum’s] unreasonable failure to pay [ORIs] to Jerry and Antonia Suire, as mandated by the Louisiana Mineral Code, [La.R.S.] 31:212.21[,] et seq.
2. The [t]rial [c]ourt committed legal error when it failed to rule that the lease entered into by AKSM and [Sweet Lake] on July 2, 2008, with an effective date of March 1, 2008 [ (the New Lease) ], was a top-lease, and since there was production of oil and gas during the time of the top-lease, that all [ORIs] attached to the top-lease once the underlying lease was terminated in bad faith.
3. The [t]rial [c]ourt committed legal error when it failed to rule that the attempted release of the [1947 Amended Lease], was not valid and did not release that lease, thereby preserving the rights of all third persons, including the [ORI] owners.

PRICES’ AND HALLERS’ ANSWER TO APPEAL

On appeal, the Prices and Hallers present the following assignments of error for our review:

1. The [t]rial [c]ourt committed legal error when it failed to award penalties and attorney fees for [Oleum’s] unreasonable failure to timely pay [ORIs] to the Prices and Hallers, as mandated by the Louisiana Mineral Code, [La.R.S.] 31:212.21[,] et seq.
2. The [t]rial [c]ourt committed legal error when it failed to rule that the lease entered into by AKSM and [Sweet Lake] on July 2, 2008, with an effective date of March 1, 2008 [ (the New Lease) ], was a top-lease, and since there was production of oil and gas during the time of the top-lease, that all [ORIs] attached to the top-lease once the underlying lease was terminated in bad faith.
3. The [t]rial [c]ourt committed legal error when it failed to rule that the attempted release of the [1947 Amended Lease] was not valid and did not release that lease, thereby preserving the rights of all third persons, including the [ORI] owners.

J & J’S ANSWER TO APPEAL

On appeal, J & J presents the following assignments of error for our review:

Ini. The [t]rial [c]ourt erred by not ruling that Oleum and/or AKSM violated the 2003 Settlement Agreement by failing to obtain the consent and written agreement of [J & J] Onshore to any attempted release of the [1947 Amended Lease.]
2. The [t]rial court erred by not ruling that the attempted release, by Ole-um and/or AKSM, of the [1947 Amended Lease], violated the lease requirement of giving a forty-five (45) day notice to [J & J] Onshore.
3. The [t]rial [c]ourt erred by not ruling that the [1947 Amended Lease] remained in full force and effect as it related to all then producing wells and twenty (20) acres surrounding each well.
4. The [t]rial court erred by not ruling that [Oleum’s] breach of the Purchase and Sale Agreement and Assignment and Bill of Sale whereby J & J ... transferred all of its right, title[,] and interest in the [Old Lease] to Oleum ..., resulted in voiding the sale, ab initio, and an award of the profits wrongfully realized by [Oleum and/or AKSM].

LAW AND DISCUSSION

JOINDER OF PARTIES NEEDED FOR JUST ADJUDICATION

This complex litigation stems from a mineral lease encumbering certain immovable property in Calcasieu Parish. The parties before this court pray for relief that includes (but is not limited to) a judicial declaration of the validity of the 2008 Release and the consequences thereof insofar as its purpose was to terminate the 1947 Amended Lease, as well as a declaration of the validity of the New Lease and the consequences thereof.

At all times relevant to this appeal, Sweet Lake has been the owner of the subject property, the lessor under the Old Lease, the lessor under the 1947 Amended Lease, and the lessor under the New Lease, which are at the core of this litigation. The terms of the 1947 Amended Lease and the New Lease are significantly different, and a determination by this court of which lease in fact burdens the property today necessarily requires an adjudication of the rights and | ^obligations of the landowner, Sweet Lake. We, therefore, sua sponte, raise the issue of the failure of Sweet Lake to be made a party to these proceedings.

With regard to the joinder of parties needed for just adjudication, La.Code Civ.P. art. 641 (emphasis added) provides:

A person shall be joined as a party in the action when either:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

An adjudication of whether the 2008 Release was valid and, consequently, whether the 1947 Amended Lease or the New Lease governs today, directly affect the immovable property owned by Sweet Lake. To effectuate complete adjudication, it is necessary that Sweet Lake be joined as a party to this litigation due to the effect that a judgment will have on which lease presently encumbers its property and the present operations under that lease. Certainly, Sweet Lake will be impacted by a judicial finding as to the continued validity of a lease, an effective release thereof, and/or the entry into a new lease in which it has an interest in as lessor. Cf. Nab Natural Res., L.L.C. v. Caruthers Producing Co., Inc., 33,726 (La. App. 2 Cir. 8/25/00), 765 So.2d 1241 (Owners of the mineral and leasehold interests in a lease, who would be impacted by an adjudication as to the validity of a lease, or a lapse thereof, were required to be joined in an action by an alleged owner of an unleased interest in an oil and gas well against the operator of the well.); City of Shreveport v. Petrol Indus., Inc., 550 So.2d 689 (La.App. 2 Cir.1989) (Lot owners within a forty-acre tract were indispensable parties in an action brought by the city against a unit operator seeking an increase in its pro rata share of production royalty.).

Louisiana Code of Civil Procedure Article 641 specifically provides that “a person shall be joined as a party in the action” if “[h]e claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may ... [a]s a practical matter, impair or impede his ability to protect that interest” or may “[ljeave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.” In the case at bar, given the issues raised by those already parties to these proceedings, we find that Sweet Lake is a party needed for just adjudication pursuant to La.Code Civ.P. art. 641.

We are cognizant of the fact that Oleum filed a motion in the trial court seeking permission to file a third party demand against Sweet Lake and that its motion was denied by the trial court. However, the claim Oleum sought to assert against Sweet Lake was only for indemnification against the claims of the ORI owners. No question was raised in the trial court by any party, nor by Sweet Lake itself, of the necessity of Sweet Lake being made a party pursuant to La.Code Civ.P. art. 641, given the claims being asserted at the time. No party in this litigation asserted in the trial court that the 2008 Release was invalid such that it failed to terminate the 1947 Amended Lease, and no party asserted that the New Lease was invalid. To the contrary, the claims being asserted in the trial court only sought damages resulting from the release of the 1947 Amended Lease. This is |uabundantly clear from the arguments of all counsel, including Sweet Lake, present at the hearing on Oleum’s motion to file its third party demand. However, because Sweet Lake has potential exposure, vis-á-vis indemnity, and also general exposure as its rights are now sought to be adjudicated pursuant to the present issues surrounding the 2008 Release and the New Lease, Sweet Lake is a party needed for just adjudication pursuant to La.Code Civ.P. art. 641 and must be brought to the table.

The allegations underlying the claims asserted by the parties are not only relevant to the necessity of Sweet Lake being made a party, they are critical to the appeal before this court insofar as we are unable to consider several of the issues raised on appeal due to the failure of the parties to raise these issues in the trial court. The record establishes that this case was presented to the trial court and was tried within the framework of a 2008 Release and a New Lease, and the resultant consequences to the parties. Now, on appeal, the validity of these documents are being called into question. In other words, in the trial court, the ORI owners sought damages from Oleum not only for damages for past due royalties owed, but also for damages resulting from the release of the 1947 Amended Lease which terminated their ORIs. Whereas, subsequently on appeal, the ORI owners argue that their ORIs actually remain in effect because the 2008 Release was invalid.

“Generally, a court of appeal will not consider an issue which is raised for the first time on appeal. Stewart v. Livingston Parish Sch. Bd., 07-1881 (La.App. 1 Cir. 5/2/08), 991 So.2d 469; Uniform Rules — Courts of Appeal, Rule 1-3.” Gremillion v. Gremillion, 10-05, p. 6 (La. App. 3 Cir. 7/7/10), 43 So.3d 1063, 1068, writ denied, 10-2125 (La.12/10/10), 51 So.3d 726. Because these issues are being | ^presented for the first time on appeal, we conclude that these issues have not been preserved for our consideration.

Having found Sweet Lake to be a party needed for just adjudication of certain issues raised by the parties on appeal, specifically the validity of the 2008 Release and the New Lease, and considering the failure of the parties to raise these issues in the trial court to the extent that they are not addressed in the judgment, we do not consider the following assignments of errors of the parties:

A. Oleum’s Appeal — Assignments of Error relative to:

1. The 2008 Release and the absence of an anti-washout provision;
2. Parole evidence and proof of ORI;
3. Bad faith in Oleum’s release of the 1947 Amended Lease as to the Suires;
4. Bad faith in Oleum’s release of the 1947 Amended Lease as to the Prices and Hallers; and
5. Solidary liability for damages due to Oleum’s release of the 1947 Amended Lease.

B. Suires’ Answer to Appeal — Assignments of Error relative to:

1. The ORI pertaining to an alleged “top-lease”; and
2. The validity of the 2008 Release of the 1947 Amended Lease.

C. Prices’ and Hallers’ Answer to Appeal — Assignments of Error relative to:

1. The ORI pertaining to an alleged “top-lease”; and
2.The validity of the 2008 Release of the 1947 Amended Lease.

D. J & J’s Answer to Appeal — Assignments of Error relative to:

1. Oleum’s violation of the 2003 Settlement Agreement by the 2008 Release of the 1947 Amended Lease;
2. Oleum’s violation of the notice requirements by its release of the 1947 Amended Lease;
3. The 1947 Amended Lease’s force and effect over then producing wells and surrounding twenty acres; and
4. The breach, vel non, of the Purchase and Sale Agreement and Assignment and Bill of Sale from J <& J to Oleum.

| trOLEUM’S APPEAL

Assignment of Error Number One

In its first assignment of error, Oleum asserts that the trial court erred in awarding damages based upon Oleum’s release of the 1947 Amended Lease. We agree ■with Oleum that an award for damages resulting from the 2008 Release was erroneous. However, the damages awarded by the trial court to each of the ORIs were comprised of two components: (1) amounts for past due royalties owed; and (2) amounts the ORIs would have received but for the 2008 Release.

For the reasons hereinafter set forth addressing other assignments of error considered in this opinion, we find no error in the trial court’s award of past due royalties owed by Oleum to the Suires. However, we affirm, as amended herein, the amount awarded by the trial court for past due royalties owed to the Hallers and the Prices. Finally, we reverse the trial court’s awards of damages in favor of the Suires, the Hallers, and the Prices, based on the projected values of the ORIs had they attached to the New Lease.

Past Due Royalties Owed — Pre-2008 Release and New Lease

The Suires

As stated above, for the reasons hereinafter set forth addressing other assignments of error considered in this opinion, we find no error in the trial court’s award of past due royalties owed the Suires by Oleum. Therefore, we affirm the judgment of the trial court in favor of the Suires for $283,282.79.

\NThe Hallers

Considering the lack of any assignments of error raised relative to the amount of the past due royalties awarded to the Hal-lers, we need not and do not consider the amount of damages awarded by the trial court for these damages occurring prior to the 2008 Release and New Lease. However, because the judgment of the trial court renders a total amount to the Hallers, without specifying what portion of that amount constitutes past due royalties owed, we must and do amend that portion of the judgment to conform it with allowing only damages occurring prior to the 2008 Release and New Lease.

With respect to Steven Haller, the trial court rendered judgment “for the full sum” of $101,378.00. When reconciled with the trial court’s oral reasons, it is clear that this figure represents the amount the trial court awarded Mr. Haller for the two elements of damages combined. Accordingly, we affirm the judgment of the trial court awarding Mr. Hal-ler past due royalties owed, but we amend said judgment to reflect that the correct amount owed by Oleum to Mr. Haller for this component of damages is $13,475.00.

A separate award is made in the judgment to Paula Haller, also designated “for the full sum of’ $101,378.00. Again, considering the trial court’s oral reasons, it is clear that this figure represents the amount the trial court awarded Mrs. Hal-ler for the two elements of damages combined. Accordingly, we affirm the judgment of the trial court awarding Mrs. Haller past due royalties owed, but |iswe amend said judgment to reflect that the correct amount owed by Oleum to Mrs. Haller for this component of damages is $13,475.00.

The Prices

Considering the lack of any assignments of error raised relative to the amount of the past due royalties awarded to the Prices, we need not and do not consider the amount of damages awarded by the trial court for these damages occurring prior to the 2008 Release and New Lease. However, because the judgment of the trial court renders a total amount to the Prices, without specifying what portion of that amount constitutes past due royalties owed, we are forced to amend that portion of the judgment to conform it with allowing only damages occurring prior to the 2008 Release and New Lease.

With respect to the Prices, the trial court rendered judgment “for the full sum” of $202,857.00 in globo. When reconciled with the trial court’s oral reasons, it is clear that this figure represents the amount the trial court awarded the Prices for the two elements of damages combined. Accordingly, we affirm the judgment of the trial court awarding the Prices past due royalties owed, but we amend said judgment to reflect that the correct amount owed by Oleum to the Prices for this component of damages is $27,049.00 in globo.

Value of ORIs had they attached to the New Lease — Post-2008 Release and New Lease

The second component of damages awarded by the trial court is an award for damages for the amounts that the ORI owners would have received had there not | ,gbeen a 2008 Release. These amounts are based upon projected values of the ORIs had they attached to the New Lease in July 2008 through trial. Because this second component of damages is inextriea-' bly tied to the validity, vel non, of the 2008 Release and the New Lease, which was not specifically ruled on by the trial court, and because a necessary party, Sweet Lake, was not a party to this litigation, we find the trial court erred in rendering these damage awards.

The Suires

For the foregoing reasons, we reverse the judgment of the trial court in favor of the Suires in the amount of $868,872.43.

The Hallers

For the foregoing reasons, we reverse the judgment of the trial court in favor of Mr. Haller in the amount of $87,903.00 ($101,378.00-$13,475.00).

For the foregoing reasons, we reverse the judgment of the trial court in favor of Mrs. Haller in the amount of $87,903.00 ($101,378.00-$13,475.00).

The Prices

For the foregoing reasons, we reverse the judgment of the trial court in favor of the Prices in the amount of $175,808.00 ($202,857.00-$27,049.00).

Assignment of Error Number Six

In its final assignment of error, Oleum asserts that the trial court erred in ruling that the PRC was invalid and did not serve to reduce Mr. Suire’s 1.98% ORI. We find no merit in this assignment of error.

As set forth above, Oleum first delayed and, in June 2007, ultimately stopped paying Mr. Suire’s 1.98% ORI. It contended that the PRC was the basis for its actions.

The applicability of the PRC was originally the subject of cross-motions for partial summary judgment filed by Oleum and Mr. Suire. Following a hearing, the [ 2fltrial court denied Oleum’s motion and granted Mr. Suire’s motion, ruling that Oleum was not entitled to take advantage of the PRC, which it relied upon to reduce the 1.98% ORI payment to Mr. Suire.

The PRC in question is contained within a May 1, 2000 document entitled “ASSIGNMENT OF ORRIDING [sic] ROYALTY INTEREST[.]” The document initially states that Oleum assigns an ORI in the Old Lease to Mr. Suire. It then sets forth that the assignment is subject to certain terms and conditions, including:

The ORRI conveyed is to be proportionately reduced if any of the leases herein affected by said interest cover less than full mineral ownership of the tract leased, and is to be proportionately reduced if the assignment from J & J ONSHORE PRODUCTION, INC. (J & J) to OLEUM covers less than 100% of the leasehold working interest noting that it is believed that J & J conveyed 100% of the leasehold working interest from surface to the base of the Cibicides Hazzardi Formation and 2/3 of the leasehold working interest below the base of said formation and is subject to all other instruments affecting the leases hereby conveyed.

Oleum’s interpretation of the foregoing provision is that an automatic reduction of the 1.98% ORI it granted to Mr. Suire would occur “if subsequent events caused the Lease to ‘cover less than full mineral ownership of the track leased.’ ” (emphasis added). Oleum concludes that the 2003 Settlement triggered the PRC by significantly reducing the scope of the lease. In sum, Oleum states that the consequence or “effect of the lawsuit aimed [by Sweet Lake] at [J & J] was to deprive Oleum of a good portion of the 480 acres of mineral rights [J & J] promised to deliver.” Because of these settlement terms, Oleum argues that J & J failed to deliver all of its working interest, as it was obligated to do.

| ⅞1 Accordingly, once the PRC was triggered, Oleum asserts that it overpaid Mr. Suire from 2008 through May 2007 based upon a 1.98% ORI which it was actually entitled to reduce to 1.1% as of 2003. Ole-um relies on these “overpayments” for its actions in withholding payment of Mr. Suire’s 1.98% ORI from July 2007 through February 2008, when the 1947 Amended Lease was terminated, in order to recoup payments it made of amounts not due.

In opposition to Oleum’s motion, and in support of his own motion for partial summary judgment, Mr. Suire argued that the PRC was inapplicable and that he was entitled to full payment of the 1.98% ORI as a matter of law. Mr. Suire notes that despite Oleum’s purported reliance on the 2003 Settlement as the trigger for the PRC, Oleum continued to pay him the 1.98% ORI for many years.

Mr. Suire advances two different grounds for the inability of Oleum to invoke the provisions of the PRC. First, the PRC is not contained within any contract between the parties, namely, he (and/or J & J) and Oleum. Second, even assuming there is a valid PRC, Mr. Suire argues that “the clause would not apply because [J & J] fulfilled all the terms of the [PRC].”

First, Mr. Suire identifies the two contracts in which J & J and Oleum had privity: (1) the Purchase and Sale Agreement; and (2) the Assignment and Bill of Sale. He notes that the Purchase and Sale Agreement contains no PRC, and the Assignment and Bill of Sale does not mention any PRC. These being the only two contracts between J & J and Oleum, Mr. Suire points out that the May 1, 2000 document relied upon by Oleum, and containing the PRC, is signed only by Oleum. Neither J & J nor Mr. Suire are signatories on that document. Therefore, 122Mr. Suire characterizes the May 1, 2000 document as a “unilateral, self-serving document produced by Oleum which first makes the assignment of 1.98% as mandated by the Purchase and Sale Agreement and Assignment and Bill of Sale, but then goes further to place conditions upon the payment of the [ORI] of 1.98%.” He concludes that because the PRC is not contained within any contracts and was not “mentioned, bargained for, paid for, or accepted by” Oleum, J & J, or Mr. Suire, Oleum was obligated to pay him the 1.98% ORI, which it failed to do.

Mr. Suire refutes Oleum’s contention that the 2003 Settlement, entered into by Sweet Lake, J & J, and Oleum, somehow triggered an “invalid” PRC, thereby reducing his 1.98% ORI. With respect to the 2003 Settlement, Mr. Suire notes that the 1.98% ORI was owed to him personally, and he was not a party to the 2003 Settlement. Additionally, the Settlement Agreement and Release does not mention any reduction of Mr. Suire’s ORI, nor does it reference a PRC.

Second, even assuming the PRC is applicable, Mr. Suire asserts that J & J satisfied its terms. He asserts that “[t]here were two conditions placed upon [J & J] that were required to be fulfilled at the time of transfer of interest.” According to Mr. Suire, both of “[t]hese conditions were fully complied with by [J & J] at the time of the transfer in 2000.” Focusing on “the time of transfer” as the relevant time period, Mr. Suire concludes that the PRC was not triggered.

The trial court’s oral reasons reveal that it agreed with Mr. Suire that Oleum could not rely on “subsequent events” to trigger the PRC. When considering the cross motions for partial summary judgment, the trial court reasoned that “even if valid, [the PRC] is inoperable because [J & J] gave what [it] said [it] was going to 1 ajgive.” Regardless of its applicability, the trial court concluded that J & J transferred 100% of what it owned as it was obligated to do at the time of the transfer.

We agree with Mr. Suire that the PRC is inapplicable given its absence from any contract between him (and/or J & J) and Oleum. Further, we agree that the obligations of J & J were fulfilled at the time of transfer. Therefore, we find no error in the trial court’s grant of Mr. Suire’s motion for partial summary judgment and its denial of Oleum’s motion for partial summary judgment relative to the PRC.

SUIRES’ ANSWER TO APPEAL

Assignment of Error Number One

In their first assignment of error, the Suires assert error in the trial court’s failure to award penalties and attorney fees for Oleum’s unreasonable failure to pay the ORI. We find no merit in this contention.

The Suires identify three differing periods that Oleum failed to pay the ORI, which they contend entitled them to an award of penalties and attorney fees: (1) Oleum’s non-payment of the ORI of August 2006; (2) Oleum’s nonpayment of the Suire Override (1.98%) from July 2007 through June 2008; and (3) Oleum’s nonpayment of the Flash Override (3.0%) from February 2008 through June 2008. In these instances of non-payment, the trial court awarded the Suires the amount of the ORI; however, the trial court did not award any amount of damages in the nature of penalties and attorney fees.

The relevant provisions contained within Louisiana’s Mineral Code are found at La. R.S. 31:212.21 through La.R.S. 31:212.23. Louisiana Revised Statutes 31:212.21 (emphasis added) places a prerequisite upon a royalty owner seeking penalties and attorney fees, stating as follows:

124If 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.

Thereafter, the mineral lessee must respond pursuant to La.R.S. 31:212.22 (emphasis added), which provides as follows:

The obligor shall have thirty days after receipt of the required notice within which to pay the royalties or production payments due or to respond by stating in writing a reasonable cause for nonpayment. The payment or nonpayment of the sums due or stating or failing to state a reasonable cause for nonpayment within this period has the following effect.

Lastly, La.R.S. 31:212.23(0 (emphasis added) provides, in pertinent part:

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.

This court addressed the above provisions of the mineral code in CLK Co., L.C.C. v. CXY Energy, Inc., 07-884 (La. App. 3 Cir. 12/19/07), 972 So.2d 1280, writs denied, 08-140, 08-207 (La.3/14/08), 977 So.2d 932, 937. Although the issue in that case was the sufficiency of the written notice, with respect to the award of damages, we reasoned as follows:

A royalty owner must give a mineral lessee written notice of his failure to “make timely or proper payment of royalties ... as a prerequisite to a judicial demand for damages.” La.R.S. 31:212.21. If the mineral lessee fails “to pay and fails to state a reasonable cause for failure to pay in response to the notice” within thirty days of receipt of the notice, a court “may” award the royalty owner double damages. La.R.S. 31:212.23(C). Initially, we observe that Section 212.23’s use of “may” means that even if CLK’s letters constitute written notice under these provisions, an award of double damages is not mandatory.

Id. at 1290 (emphasis added).

laJn the case at bar, the parties dispute whether Oleum had “reasonable cause” for its nonpayment of the ORI. Although the trial court found that the reasons set forth by Oleum were invalid, it found that the imposition of penalties and attorney fees was not warranted and refused to award any. Mindful that statutory penalties are penal in nature and should be construed strictly, and considering the discretion afforded to the trial court in such matters, we find no manifest error in the trial court’s denial of the Suires’ claim for penalties and attorney fees.

PRICES’ AND HALLERS’ ANSWER TO APPEAL

In their first assignment of error, the Prices and the Hallers assert error in the trial court’s failure to award penalties and attorney fees for Oleum’s nonpayment of the ORI. They contend that they were entitled to an award of penalties and attorney fees for Oleum’s non-payment their ORI from March 2008 through June 2008. For the non-payment of these ORIs, the trial court actually awarded $26,950.00 in favor of the Hallers and $27,049.00 in favor of the Prices; however, the trial court did not award any penalties and attorney fees. For the reasons set forth above in addressing the Suires’ answer to appeal, we, likewise, find no merit in this contention.

J & J’S ANSWER TO APPEAL

J & J argues in its answer to appeal that the trial court erred in denying its claim that Oleum breached the Purchase and Sale Agreement and Assignment and | afiBill of Sale, which J & J asserted “resulted in voiding the sale, ab initio,” and, thereby, entitled J & J to “an award of the profits wrongfully realized by [Oleum].” Having reviewed the scant evidence in the record relevant to this claim, we agree with the trial court that this claim was not proven.

DISPOSITION

Based on the foregoing, we affirm the trial court’s damage award of $283,282.79 for past due royalties owed in favor of Jerry J. and Antonia G. Suire and against Oleum Operating Company, L.C. and AKSM, L.C., together with legal interest from the date each payment was due up through July 2, 2008. We affirm the trial court’s award of damages for past due royalties owed in favor of Steven Haller and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $13,475.00, together with legal interest from the date each payment was due up through July 2, 2008. We affirm the trial court’s award of damages for past due royalties owed in favor of Paula Haller and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $13,475.00, together with legal interest from the date each payment was due up through July 2, 2008. We affirm the trial court’s award of damages for past due royalties owed in favor of Preston Andrews and Susan R. Price and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $27,049.00, together with legal interest from the date each payment was due up through July 2, 2008. We affirm the trial court’s denial of penalties and attorney fees to the Suires, the Hallers, and the Prices. Finally, we reverse the trial court’s award of damages and judicial interest in favor of the Suires, the Hallers, and the Prices, and against Oleum Operating Company, L.C. and AKSM, L.C., post 2008 Release and New Lease (i.e., July 2, 2008) in the amounts of $868,872.43, $175,806.00, and $175,808.00 respectively.

|27The costs of this appeal are assessed one-half to Plaintiffs, Jerry J. Suire and Antonia G. Suire; Plaintiff in Reconvention, J & J Onshore Production, Inc.; and, Intervenors, Preston Andrews Price and Susan R. Price and Steven Haller and Paula Haller — and one-half to Defendants, Oleum Operating Company, L.C. and AKSM, L.C.

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

ON REHEARING

GENOVESE, Judge.

Considering the applications for rehearing by Plaintiffs, Jerry J. and Antonia G. Suire and J & J Onshore Production, Inc., and Intervenors, Preston A. Price and Susan R. Price and Steven Haller and Paula Haller, we grant this rehearing limited solely to the issues of the award of legal interest on past due royalties owed and a remand of the matter to the trial court for further proceedings.

In our original opinion, we affirmed the judgment of the trial court awarding Plaintiffs, Jerry J. and Antonia G. Suire and J & J Onshore Production, Inc., damages for past due royalties owed. Similarly, we affirmed, as amended, the judgment of the trial court awarding Intervenors, Preston A. Price and Susan R. Price and Steven Haller and Paula Haller, damages for past due royalties owed. However, the opinion of this court improvidently modified the trial court’s calculation of legal interest due to the parties on this element of damages “from the date each payment was due until paid” to “legal interest from the date each payment was due up through July 2, 2008.” On rehearing, in order to correct this error, we amend the prior disposition of this matter relative to the calculation of legal interest on past due royalties owed to allow legal interest from the date each payment was due until paid.

The second issue raised on rehearing concerns the absence of an express remand despite this court’s determination that “Sweet Lake is a party needed for just adjudication pursuant to La.Code Civ.P. art. 641[J” Finding remand to be appropriate, on rehearing, we supplement our prior disposition of this matter by ordering a remand of the matter to the trial court for further proceedings.

Therefore, on rehearing, we hereby amend and supplement our prior disposition of this matter as follows:

DISPOSITION ON REHEARING

Based on the foregoing, we affirm the trial court’s damage award of $283,282.79 for past due royalties owed in favor of Jerry J. and Antonia G. Suire and against Oleum Operating Company, L.C. and AKSM, L.C., together with legal interest from the date each payment was due until paid. We affirm the trial court’s award of damages for past due royalties owed in favor of Steven Haller and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $13,475.00, together with legal interest from the date each payment was due until paid. We affirm the trial court’s award of damages for past due royalties owed in favor of Paula Haller and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $13,475.00, together with legal interest from the date each payment was due until paid. We affirm the trial court’s award of damages for past due royalties owed in favor of Preston A. Price and Susan R. Price and against Oleum Operating Company, L.C. and AKSM, L.C., but amend the amount of the award to $27,049.00, together with legal interest from the date each payment was due until paid. Finally, we remand this matter to the trial court for further proceedings consistent with this opinion. All other aspects of our original judgment remain in full force and effect as stated therein.

REHEARING GRANTED; AND REMANDED.

      . J & J Onshore Production, Inc. is owned by Jerry and Antonia Suire, and it is also a party to the lawsuit.

      . These entities are owned and operated by Mike Snell and his family.

      . We refer to the original lease herein as the Old Lease as it is referred to by the parties.

      . We refer to these ORIs as the Flash Overrides, as they are referred to by the parties.

      . Additionally, Sweet Lake sought damages for the restoration of the property, plugging and abandoning wells, and removal of equipment.

      . This ORI, referred to as the Suire Override, amounted to 1.98%.

      . We refer to this new agreement as the 1947 Amended Lease, as it is referred to by the parties.

      . We refer to this document as the 2008 Release, as it is referred to by the parties. An Act of Correction was later filed on July 29, 2008, providing for the effective date of the release to be March 1, 2008.

      . We refer to the 2008 lease as the New Lease, as it is referred to by the parties.

      . In 2005, Oleum assigned a portion of the lease to AKSM.

      . The PRC was the subject of cross motions for partial summary judgment. Following a hearing, the trial court denied Oleum’s motion and granted Mr. Suire’s motion, ruling that the PRC did not provide a legal basis for Oleum to terminate the payment of Mr. Suire’s 1.98% royalty interest.

      . This listing is not comprehensive. For brevity, only those events pertinent to our consideration have been included.

      . "NRI” is the acronym for "net revenue interest!)]”

      . As hereinafter discussed, the validity, vel non, of the 2008 Release and the New Lease are both critical to a legal disposition of the claims made herein; however, neither were specifically ruled on by the trial court or referenced in the judgment.

      . Although Oleum’s Motion for Suspensive Appeal includes language that it seeks an appeal from the February 20, 2013 judgment, Oleum does not identify or include any alleged error in the trial court’s denial of its Motion for New Trial in its assignments of error nor does it include a discussion of same in its appellate brief. Therefore, we do not address the trial court’s judgment of February 20, 2013 denying Oleum's Motion for New Trial. Uniform Rules — Courts of Appeal, Rules 1-3; 2-12.4.

      . It is noteworthy that Sweet Lake was not a party to the 2008 Release, which was executed only by Oleum.

      . Nonjoinder of a party is a peremptory exception which "may be noticed by either the trial or appellate court on its own motion.” La.Code Civ.P. art. 927(B).

      . Oleum’s right to indemnification was contained in the 2003 settlement agreement reached between Sweet Lake, J & J, and Oleum.

      . The transcript of that hearing was the subject of a Motion and Order to Supplement the record, which was granted by this court. Jerry Suire v. Oleum Operating Co., 13-736 (La. App. 3 Cir. 8/30/13).

      . In its oral reasons, the trial court stated: [P]laintiffs, Jerry and Antonia Suire, should be repaid in the amount of $283,282.79, which is the total of the royalties that should have been paid to the Suires for the month of August 2006, the 1.98 percent overriding royalty interest for the month ... of July '07 through June 2008, and the 3 percent overriding royalty interest for the months of February 2008 through June 2008.

      . In its oral reasons, the trial court stated:
      The [I]ntervenors, Steven and Paula Hal-ler, should be repaid ... in the amount of $13,475[.00] each, for a total of $26,-950[.00] ... which is the total of the royalties that should have been paid to each of the Hallers for the monthfs] of March 2008 through June 2008.
      Therefore, the difference, $175,806.00, is actually the second element of damages that the trial court awarded to the Hallers.

      . In its oral reasons, the trial court states: “[T]he [I]ntervenor[s], Preston and Susan Price, should be paid in the amount of $27,-049[,00], which is the total of royalties that should have been paid to the Prices for the months of March 2008 through June 2008.” Therefore, the difference, $175,808.00, is actually the second element of damages that the trial court awarded to the Prices.

      . The 2003 Settlement provided for a release of 200 of the 480 acres (41.67%) of the acreage of the "Shallow Rights” and all of the "Deep Rights.”

      . J & J’s ownership at the time of the sale to Oleum was a 100% leasehold interest in the "Shallow Rights” and a 2/3 leasehold interest in the "Deep Rights.”

      . Oleum notes in brief that it “was not able to present its entire case on this issue since the trial court had summarily ruled that the [PRC] was not applicable.” Further, Oleum states that it "intended” to introduce evidence necessary to determine the value of the proportionate interest lost by virtue of the 2003 Settlement and the proportion of the ORI payment to Mr. Suire before July 2007. Ole-um concludes that ”[w]ith these facts proven, [it] would be entitled to a judgment against [Mr. Suire] for the overpayments.”

      . Mr. Suire also notes that Oleum never filed this document with the Clerk of Court of Calcasieu Parish.

      . For purposes of clarity, we acknowledge that the parties discuss alleged "bad faith” on the part of Oleum in different contexts. Specifically, the parties (as well as the trial court) use the term in connection with the asserted "bad faith” on the part of Oleum in releasing the Old Lease. For the reasons previously set forth in this opinion, we do not consider Oleum's actions with respect to the 2008 Release. Rather, this discussion is expressly and purposefully limited to "reasonable cause” and whether the trial court erred in failing to award the Suires penalties and attorney fees for Oleum’s non-payment of ORI, i.e., the $283,282.79 awarded for past due royalties owed pursuant to La.R.S. 31:212.23 prior to said release.

      . Sultana Corp. v. Jewelers Mut. Ins. Co., 03-360 (La. 12/3/03), 860 So.2d 1112.

      . The equivalent term "judicial interest” is used in the trial court’s judgment.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Willie Faye FOX, Plaintiff-Appellant v. REYNOLDS INDUSTRIAL CONTRACTORS, INC. and Luba Casualty Insurance Company, Defendant-Appellee.
    No. 48,660-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 13, 2014.

      Fischer, Hathaway & Manno by Mark Kenneth Manno, Shreveport, for Appellant.
    Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P., Monroe, by Donald J. Anzelmo, for Appellees.
    Before STEWART, DREW and GARRETT, JJ.
   DREW, J.

Lin this long-running dispute which has included a 2003 trial and three appeals, Willie Faye Fox appeals a judgment denying her claim for additional Supplemental Earnings Benefits (“SEB”). We affirm.

FACTS

Fox began working as a secretary for Reynolds Industrial Contractors on a construction project at a plywood mill in October of 1995. She was injured on January 26, 1996, when a sledgehammer fell on her foot. Despite her injury, Fox continued to work until early the next month. Her job was scheduled to terminate later in February.

Fox was diagnosed as having reflex sympathetic dystrophy (“RSD”) of her right lower extremity. Dr. James Lillich, an orthopedic surgeon, operated on her right foot. She was referred to Dr. Ross Nelson, a pain management doctor, who administered injections to her foot. In 1999, Dr. Kathleen Majors, Dr. Nelson’s partner, began treating Fox approximately every three months for the next 13 years. Dr. Majors pronounced Fox at maximum medical improvement in August of 2000. Fox I

Reynolds paid total disability benefits to Fox until November 1,1997, and then SEB until September 30, 2001. On November 27, 2001, Reynolds filed a disputed claim asserting that Fox had forfeited her right to benefits after September 30, 2001, by making false statements and representations in violation of La. R.S. 23:1208. On October 29, 2002, Fox filed a disputed claim seeking reinstatement of benefits.

li>Dr. Majors was deposed on July 21, 2003. As of August 2000, she thought Fox could perform sedentary work with her right foot propped up six inches on a padded footrest. Dr. Majors believed that it would be best for Fox to begin by working with those restrictions for four hours a day and then increase her workday to six hours. Dr. Majors wanted to reevaluate Fox after she performed this part-time work for four to six weeks.

Dr. Majors never had the opportunity to reevaluate Fox prior to trial on the forfeiture and reinstatement issues as the trial was held on July 30, 2003, nine days following her deposition. Judgment was not rendered until August of 2005 because the record had to be reconstructed after it was misplaced. The WCJ ruled that Fox had forfeited her right to further benefits. The WCJ specifically noted that Fox had misrepresented the extent of her disability numerous times, made false statements about subsequent accidents, and misrepresented the nature of her employment with Reynolds.

Fox appealed. In Reynolds Industrial Contractors v. Fox, 41,051 (La.App.2d Cir.6/28/06), 935 So.2d 783, this court, after concluding that Reynolds had not established a forfeiture of benefits, reversed the judgment insofar as it dismissed Fox’s claim for further benefits. Of significance for purposes of this appeal is that when this court considered the forfeiture issue, it stated that surveillance tapes, Fox’s testimony at the 2003 trial, and her statements and actions at a functional capacity evaluation presented “significant credibility issues concerning her ability to work or receive SEB.” Id. at p. 12, 935 So.2d at 790.

|,^Nevertheless, this court found that Fox was entitled to six weeks of SEB, noting in a footnote that under La. R.S. 23:1310.8, she was not barred from seeking a modification of the award for prospective benefits due to any relevant changes in her condition. In explaining why the award of SEB was being limited to six weeks at that time, this court stated:

It is important that Fox’s medical condition was based largely upon the subjective representations of Fox, which the WCJ rejected as self-serving and lacking credibility. Dr. Majors’ deposition clearly establishes Fox’s ability to return to light duty sedentary employment with a minor foot restriction, initially at a part-time level for a four to six week period. Fox’s questionable credibility and the lack of proof of her inability to work full-time after the six week term precludes any additional award of benefits after the six week period. On this record, we therefore find that Fox has only established an inability to earn 90% of her pre-accident wages for a six week period.

Emphasis added. Id. at p. 14, 935 So.2d at 791.

Fox II

On July 12, 2007, Fox filed a disputed claim seeking indemnity benefits, all reasonable and necessary medical treatment, penalties, and attorney fees. In- response, Reynolds filed the exceptions of prescription and res judicata.

While the exceptions were pending, Dr. Majors was deposed for a second time on June 24, 2008. She testified that Fox’s condition was basically unchanged since 2003, and that she believed the restrictions she had given earlier were now permanent.

On August 5, 2008, the WCJ rendered judgment granting the exception of res judicata. The exception of prescription was not ruled upon in light of the finding of res judicata. Fox appealed.

| ¿This court affirmed the judgment sustaining the exception of res judicata as to the claim for modification of medical benefits, which were not awarded in Fox I. However, this court found that Fox’s claim for SEB for the period of time following the trial of her first claim and after satisfaction of the six-week SEB award was not barred by res judicata. Accordingly, this court reversed the judgment sustaining the exception of res judicata as to the claim for modification of indemnity benefits. The matter was remanded for consideration of the exception of prescription against the claim for indemnity benefits. This court noted that as its review was limited to the issue of res judicata, it was not making any determination whether Fox could carry her burden of proving a change in condition based on an extended duration of disability at trial. Fox v. Reynolds Indus. Contractors, 44,938 (La. App.2d Cir.1/27/10), 33 So.3d 895, writ denied, 2010-0676 (La.5/28/10), 36 So.3d 250. On remand, the WCJ denied the exception of prescription.

Fox III

Reynolds filed the exception of no cause of action, or alternatively, a motion for summary judgment. It argued that under La. R.S. 23:1221(3)(d)(i), Fox’s right to any additional SEB had terminated. The WCJ granted the exception and, in the alternative, the motion for summary judgment. Fox appealed. Reynolds also appealed the denial of its exception of prescription.

This court reversed the judgment granting the exception of no cause of action or, alternatively, the motion for summary judgment. The judgment denying the exception of prescription was affirmed. The matter was remanded for trial on the issue of whether Fox was entitled to a modification 1 Bof her SEB award. Fox v. Reynolds Indus. Contractors, 46,695 (La.App.2d Cir.11/16/11), 79 So.3d 1140.

Round Four

Trial was held on July 17, 2012. Fox testified that she began working part-time as a bookkeeper for her sister in January of 2006. She usually worked only a couple of hours for her sister, but sometimes worked as many as eight hours a day. It was the only time she earned wages since she worked for Reynolds. She earned $50 in January of 2006, and $37.50 in February of 2006.

The WCJ recognized that the only issue before it was whether Fox was entitled to additional indemnity benefits beyond the six weeks of SEB awarded in Fox I. The WCJ concluded that Fox failed to prove by a preponderance of the evidence that she was entitled to additional benefits.

The WCJ noted that Dr. Majors had restricted Fox to sedentary duty, but had agreed that clerical duty, such as what she had performed for Reynolds and for her sister, fit within that restriction. She earned $8 per hour, and while normally working only a few hours at a time, she sometimes worked up to eight hours per day for her sister if work was available.

The WCJ rejected Dr. Majors’ extension of the part-time work restriction beyond six weeks as lacking an adequate foundation because Dr. Majors first learned that Fox had returned to clerical work when she was deposed in 2008. The WCJ reasoned that Dr. Majors’ ability to evaluate Fox’s tolerance for work beyond four to six hours per day was limited by her lack of information. The WCJ also noted that Dr. Majors’ opinion regarding Fox’s ability to work was contradicted by other activities that Fox had | (¡engaged in, such as driving over 100 miles, grocery shopping, fishing, regular exercise, and performing household chores including feeding dogs, caring for horses, and tending to a rose garden.

The WCJ believed that the evidence generally showed improvement in Fox’s condition since the 2003 trial. She no longer needed drugs for breakthrough pain and had not had nerve block injections since 2003. Her pain was worse at night, which presumably minimized the impact of her condition on her ability to work during the day. She had not used a cane for several years, and while she complained of ongoing cramping or muscle spasms, those complaints were not documented in her medical records.

The WCJ did not consider Fox to be a particularly credible witness, and thought she was unduly combative and evasive during cross-examination. The WCJ noted that Fox misrepresented to her doctor the amount of exercise she performed in order to avoid criticism from the doctor. Finally, the WCJ saw nothing at trial that indicated any substantial limitation in Fox’s ability to earn a wage as she testified at length without any apparent pain that would limit her ability to perform clerical work similar to what she did before and after the accident.

DISCUSSION

The only issue at trial was whether Fox was entitled to a modification of the prior award of six weeks of SEB. La. R.S. 23:1310.8(B) permits a WCJ to modify an award based on a change in condition. Fox was required to prove a change in her condition by a preponderance of the evidence. See Luquette v. Self, 2012-112 (La. App. 3d Cir.6/13/12), 94 So.3d 930.

|7In Bordelon v. Vulcan Materials Co., 472 So.2d 5 (La.1985), the supreme court examined the provisions of La. R.S. 23:1331, which was the modification statute in effect at the time. It provided that a compensation judgment could be modified at the request of either party on the ground that the “incapacity of the employee has been subsequently diminished or increased.” La. R.S. 23:1331 was repealed in 1988 and replaced by La. R.S. 23:1310.8. The supreme court stated that an “employee is not permitted to relitigate his original condition but must show a change in his compensable condition, such as progression, deterioration, or aggravation of the condition, achievement of disabling character by a previously asymptomatic complaint, appearance of new and more serious features, or failure to recover within the time originally predicted.” Bordelon, 472 So.2d at 10.

An increased duration of disability was a type of change in a claimant’s condition contemplated by La. R.S. 23:1331. See Zachary v. Bituminous Cas. Corp., 371 So.2d 1249 (La.App. 3d Cir.1979).

Fox argues on appeal that the WCJ was manifestly erroneous in considering facts outside the relevant time period at issue. Fox also contends that the WCJ erred as a matter of law in ignoring Dr. Majors’ un-controverted medical testimony, and that she is entitled to a modification of the prior award of six weeks because although Dr. Majors initially limited the duration of her restrictions pending a reevaluation, Dr. Majors declared in 2008 that her restrictions were permanent. Fox further argues that the WCJ erred as a matter of law in ignoring the law of the case by examining whether Fox was entitled to any SEB, which had already been determined in | HFox I. She contends the inquiry should have been whether Fox was entitled to a modification of the prior award.

Fox received 293 weeks of SEB through September 30, 2001. She was later paid the six weeks of SEB awarded in Fox I. According to Fox, this leaves her entitled to 221 weeks of SEB ending on February 5, 2006. Fox contends that her activities after February 5, 2006, as well as her supposed lack of discomfort at the 2012 trial, were irrelevant and should not have been considered.

We are mindful that appeals lie from the judgment itself, not the reasons for judgment. Risk Management Services v. Ashley, 38,431 (La.App.2d Cir.5/14/04), 873 So.2d 942, unit denied, 2004-1481 (La.9/24/04), 882 So.2d 1138; Louisiana Workers’ Compensation Corp. v. Gray, 34,-731 (La.App.2d Cir.5/9/01), 786 So.2d 310.

Considering that Fox’s credibility was questioned in Fox I, and considering that Dr. Majors was deposed in 2008 about whether Fox’s condition had changed since she was earlier deposed, the relevance of Fox’s activities did not cease once the period during which she was eligible for SEB ended.

Fox and her husband live on a farm of 48 acres. Fox testified that her husband worked overseas on a 30 days on/30 days off schedule. When he is away for work, someone feeds the cows and horses for her. She does some housework, but also has a maid. She admitted that when deposed in 2008, she said she did housework, fed the dogs, tended to her rose garden, fed and checked her horses, could drive, went to the grocery store, cooked, shopped, 19fished, and cut the grass using a riding lawnmower. She testified at trial that she could no longer cut the grass and hired someone to do it.

When Fox was treated at Ark-La-Tex Cardiology on May 25, 2006, she reported that she had an active lifestyle and walked for exercise. It was recorded there on September 14, 2006, that she occasionally walked for exercise and had no problems doing so. It was also recorded there on January 18, 2008, that she regularly walked for exercise.

Fox agreed that she was not exercising very much in 2002 because of her condition. She said she told her primary care physician, Dr. Ana Pere, on June 22, 2006, that she was exercising regularly only because she did not want Dr. Pere to tell her she needed to exercise. Fox also testified that she told Dr. Jimmy Brown of Ark-La-Tex Cardiology in January of 2008 that she walked for exercise and was doing more exercise than ever before because that was what he wanted to hear.

Fox was using a cane at the time of the 2003 trial, but she was not using a cane at the 2012 trial. When asked if that was a sign of improvement, she replied that she felt worse at night.

Although Fox could have returned to work in August of 2000 on a part-time basis with restrictions, she did not work again until January of 2006. According to Fox, she attempted to find employment during that time by informally talking to people she knew and asking if they were hiring. She never sent in a written job application or interviewed with a company hiring because she did not think they would hire someone with her restrictions. Reynolds’ worker’s comp insurer did not aid her in finding work.

1 inFox had been employed mostly in secretarial and office jobs. She testified that she cannot perform a job like the one she had at Reynolds because she cannot sit for a long time. She also cannot travel long distances because her leg begins cramping. She also needs to keep her foot propped up as instructed by Dr. Majors.

Fox’s medical records show that as early as May 25, 2006, at Ark-La-Tex Cardiology, she reported herself as being retired. Her professed retirement status is also noted in medical records at Natchitoches Regional Medical Center and Willis-Knighton Health Center.

When questioned about several of the records showing that she was retired, Fox could not offer any explanation and said she did not recall filling out the forms recording this.

In the month before her eligibility for SEB ended, Fox began performing clerical work for her sister’s company, Mack Anthony Trucking, making $8 an hour. It was the same kind of work that she did for Reynolds and for another prior employer. What she did for her sister and when she did it depended on what her sister needed. When she first started helping her sister, all of the work was being done at her sister’s home in Robeline, which was a 30-minute drive away. She started doing less work for her sister when the job was moved to Carthage. That was the only reason that she stopped working for her sister. Fox asserted that the medicines she took affected her ability to drive, and that Natchitoches is as far as she will regularly drive, although she will sometimes drive to Alexandria. Although the work for her sister was part-time, Fox admitted that she sometimes worked as many as eight hours in a day for her sister.

|nFox at first claimed she reported her income from her sister on her taxes. However, she later stated that she received her first W-2 from Mack Trucking in 2012. She believed she never received a 1099 form and received only one W-2 because she had not made enough money. Fox agreed that in her 2008 deposition she had testified that she never reported her earnings to the IRS.

When asked at trial if her RSD condition had improved since she was first diagnosed, Fox replied that she could walk better, but hurt badly at night, which had kept her from sleeping for over a year. She sleeps wearing support hose and with her legs propped up. Fox speculated that the pain had become worse at night because she was more active during the day.

Dr. Majors testified in 2003 that because Fox has switched her pain medication from Oxycontin to Duragesic, she no longer had any driving limitation. Dr. Majors explained that the symptoms of RSD can wax and wane, so RSD will not stop someone from ambulating all the time. Although Fox always had her cane when she saw Dr. Majors, she thought Fox could walk without her cane at times. She stated that Fox could do light housekeeping, shopping, and walking.

Dr. Majors explained in 2003 that RSD is generally a permanent condition, although she could not say whether Fox would get better, worse, or stay the same. Dr. Majors thought it was difficult to predict how many hours a week someone with RSD could work. At the time of the deposition, Fox was on Duragesic patches, To-pamax (a seizure medication for nerve pain), Sonata (to help with rest at night), Roxycodone (as needed for breakthrough pain), Zanaflex (a muscle relaxant for muscle spasms), and 11⅞Volt aren or Cataflam as an anti-inflammatory. Medications were sometimes rotated, and Dr. Majors gave as an example that Oxycontin was replaced by Duragesic patches. Fox testified that she was also taking Lortab at the time of trial.

Dr. Majors testified at her 2008 deposition as an expert in pain care and anesthesia. Fox was still using Duragesic patches and taking Voltaren and Topamax. Dr. Majors had not prescribed Roxycodone for breakthrough pain since January 2008. Fox had not had a nerve block since 2003. Dr. Majors’ earlier diagnosis of RSD remained the same. She described RSD as a chronic condition that was permanent in Fox’s case. She had not made many changes with Fox’s pain medications, and she expected Fox to continue on the same medications indefinitely.

Dr. Majors would continue the same work restrictions that she assessed in July of 2003 as Fox’s condition was basically unchanged. The restrictions of working no more than four to six hours a day at sedentary work with her foot propped up were permanent, so Dr. Majors would continue the restrictions beyond six weeks. Interestingly, despite saying Fox’s restrictions were permanent, Dr. Majors agreed it was possible that she would allow Fox to work eight hours if she could tolerate working four to six hours. She would want to see how she did after working four to six hours.

Dr. Majors thought it would be very difficult for Fox to work an eight-hour day because she had been off work for so long. We note that until the deposition, Dr. Majors was unaware that Fox had been doing part-time work for her sister. When Dr. Majors was asked if it would be acceptable if Fox | ^occasionally did clerical work for her sister for less than four hours a day and with a footrest, Dr. Majors replied that it would be acceptable.

When Fox was asked why she never told Dr. Majors that she was working for her sister, she responded that she told Dr. Majors everything. Fox added that Dr. Majors probably would not consider what she did for her sister to be working. However, Fox admitted that it was the same type of work as she did for Reynolds, and Fox considered that to be working. Fox testified at trial that she has had muscle spasms and cramping in her legs since 2003. When asked why Dr. Majors’ medical reports never mention cramping or spasms in the leg since June 20, 2003, Fox replied that she did not know what Dr. Majors had written down during her visits with her. Fox testified she told Dr. Majors about the cramps and spasms in her leg and that Dr. Majors prescribed muscle relaxers.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Dombrowski v. Patterson-UTI Drilling Co., 46,249 (La. App.2d Cir.4/13/11), 63 So.3d 308. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993); Dombrowski v. Patterson-UTI Drilling Co., supra.

| uUltimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, supra; Dombrowski v. Patterson-UTI Drilling Co., supra.

This record supports the finding that Fox did not prove that she was entitled to an extension of the original SEB award. The WCJ was not manifestly erroneous in concluding that Fox failed to carry her burden of proving a change in her condition requiring a modification of the SEB award of six weeks.

Penalties and attorney fees

Fox asserted that she was entitled to penalties and attorney fees for Reynolds’ failure to pay benefits. An unsuccessful claimant is not entitled to penalties and attorney fees. Patterson v. General Motors Co., 46,559 (La.App.2d Cir.9/21/11), 73 So.3d 465.

DECREE

At Fox’s costs, the judgment is AFFIRMED.


text:
    Curtis BOYD, by and through Mary MASTIN, next friend, Individually and on Behalf of and for the use and Benefit of Curtis L. Boyd. v. Gregory NUNEZ, M.D.
    No. 2011-CT-00444-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2014.
    Rehearing Denied April 17, 2014.
    John W. Nisbett, Michael A. Heilman, Jackson, Jonathan B. Fairbank, Christopher Thomas Graham, attorneys for appellant.
    David W. Upchurch, Robert K. Up-church, Tupelo, John Mark McIntosh, Janelle M. Lowrey, Oxford, Joshua S. Wise, Tupelo, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice, for the Court:

¶ 1. In this medical malpractice case, the defendant alleged the plaintiffs discovery response concerning his expert was insufficient. The trial judge ordered the plaintiff to produce the expert for a deposition but, due to illness, the expert was unable to attend the scheduled deposition. Without addressing whether the plaintiff was at fault for failure to comply with the court’s order to produce the expert for deposition, the trial court ordered that the expert would not be allowed to testify. The Mississippi Court of Appeals affirmed. We reverse and remand for a hearing on that issue.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dr. Gregory Nunez treated Curtis Boyd, a resident of Vineyard Court Nursing Center, for approximately six months in 2004. Boyd claims that Dr. Nunez’s malpractice and the nursing home’s negligence combined to cause an uncontrolled infection and the amputation of his leg.

¶ B. Boyd filed a medical malpractice suit against Dr. Nunez, and the parties agreed to a scheduling order setting September 15, 2009, as the deadline for Boyd to designate an expert witness; October 30, 2009, for the defendants to designate their expert; November 13, 2009, for the close of discovery; November 20, 2009, for disposi-tive motions; and November 30, 2009, for the trial.

¶ 4. According to Dr. Nunez’s counsel at the hearing on his motion to compel, Boyd timely designated Dr. John Payne as his medical expert on September 15, 2009. But Dr. Nunez requested a more definite statement of the factual basis for Dr. Payne’s conclusions. After receiving no supplementation, Dr. Nunez filed a motion to compel and requested potential dates to depose Dr. Payne. On November 4, 2009, Boyd filed a supplementation to his expert disclosure, and he moved for a continuance.

¶ 5. On November 9, 2009, at a hearing on Boyd’s motion for a continuance and Dr. Nunez’s motion to compel, Dr. Nunez argued that Boyd’s supplementation was insufficient, but he agreed that his concerns could be satisfied by deposing Dr. Payne before trial. The trial judge ordered the parties to work together and schedule Dr. Payne’s deposition before the scheduled trial date of November 30.

¶ 6. The trial judge did not rule on the motion for a continuance, stating that he was not inclined to postpone the trial. He did state, however, that if the parties could not complete Dr. Payne’s deposition before trial, he might have to continue trial to a later date. The parties agreed to conduct Dr. Payne’s deposition on November 21, 2009.

¶ 7. On Friday, November 20, Boyd notified Dr. Nunez that Dr. Payne had become ill and would be unable to appear at the scheduled deposition. Boyd provided Nunez with a second supplementation to his expert disclosure, detailing all of the facts supporting Dr. Payne’s opinions. At a later hearing, Boyd claimed he faxed a copy of the second supplementation to Dr. Nunez that Friday afternoon, but Dr. Nunez claimed he did not receive it until the following Monday, November 23.

¶ 8. On November 23, 2009, the parties conducted mediation, and Boyd settled with all defendants except Dr. Nunez. When the parties appeared for the scheduled trial, Dr. Nunez filed a motion to exclude Dr. Payne’s testimony, arguing that the trial court should not consider the second supplementation filed after the close of discovery and that the original designation and first supplementation were still insufficient.

¶ 9. Boyd argued that Dr. Payne’s illness was unforseen, and that the trial judge should grant a continuance to allow the parties to reschedule the deposition. The trial judge found that Boyd’s original designation and first supplementation were insufficient, and he refused to consider the second supplementation. He then ruled that Dr. Payne would not be allowed to testify.

¶ 10. Dr. Nunez then argued that, because Boyd could not prevail on his medical malpractice claim without expert testimony, the trial judge should enter a final judgment in his favor. The trial judge agreed and entered the final judgment. After the trial court denied Boyd’s motion for reconsideration, he appealed, and the Mississippi Court of Appeals held that the trial judge correctly excluded Dr. Payne’s testimony as a discovery sanction for failure to provide a sufficient expert disclosure and affirmed the summary judgment. We granted certiorari.

ANALYSIS

¶ 11. We review a trial judge’s decision to exclude evidence as a discovery sanction for an abuse of discretion. The trial judge excluded Dr. Payne’s testimony because he found that Boyd had failed to satisfy the requirements of Rule 26 for expert disclosures. In determining that exclusion was appropriate, he applied the four-factor test announced in Mississippi Power & Light Co. v. Lumpkin. We find the trial judge analyzed the wrong discovery issue.

¶ 12. Mississippi Rule of Civil Procedure 26 provides that:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

¶ 13. Where one party alleges another party failed to fully respond to discovery, the proper procedure is for the aggrieved party to seek a remedy from the trial court by filing a motion to compel. And where, as here, the trial court orders relief, and the aggrieved party claims the other party failed to comply with that order, the trial court must determine whether sanctions are proper for failure to comply with the court’s order.

¶ 14. After Boyd’s initial disclosure, Dr. Nunez made a request for further expert disclosure. In response, Boyd provided a supplement to his expert designation. Dr. Nunez found the supplementation inadequate and moved the trial court for an order compelling a more definite statement of “the substance of the facts and opinions to which the expert is expected to testify.” At the hearing on Dr. Nunez’s motion to compel, the trial court fashioned a remedy, ordering the parties to conduct a deposition of Dr. Payne prior to the trial set for November 30.

¶ 15. When the deposition did not take place because of Dr. Payne’s illness, Dr. Nunez moved to exclude Dr. Payne’s testimony. Rather than analyzing whether Boyd should be sanctioned for his failure to comply with the order to produce Dr. Payne for a deposition, the trial judge went behind his previous order and sanctioned Boyd for his insufficient supplementation. Said differently, the trial judge should have analyzed whether sanctions were appropriate based on Boyd’s failure to produce Dr. Payne for a deposition, as the court had ordered. Because the trial judge never engaged in that analysis, we must reverse and remand.

CONCLUSION

¶ 16. Because the trial judge analyzed the wrong discovery issue, we reverse both the judgment of the Court of Appeals and the trial court’s entry of final judgment and exclusion of Dr. Payne’s testimony, and we remand this case for the trial court to determine whether Boyd should be sanctioned for his failure to produce Dr. Payne for a deposition, as the court had ordered.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. COLEMAN, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., AND KING, J., NOT PARTICIPATING.

      . Boyd ex rel. Mastin v. Nunez, 135 So.3d 122, 126-28 (Miss.Ct.App.2013).

      . Id. at 128-29.

      . Estate of Bolden ex rel. Bolden v. Williams, 17 So.3d 1069, 1073 (Miss.2009).

      . Mississippi Power & Light Co. v. Lumpkin, 725 So.2d 721, 733-34 (Miss. 1998).

      . Miss. R. Civ. P. 26(b)(4)(A)(l).

      . Ford Motor Co. v. Tennin, 960 So.2d 379, 393 (Miss.2007) (quoting Caracci v. Int’l Paper Co., 699 So.2d 546, 557 (Miss. 1997)).

      . Ford, 960 So.2d at 393.

      . Id.


text:
    Donald R. BREWER v. Penny Mathis HOLLIDAY.
    No. 2011-CT-00964-SCT.
    Supreme Court of Mississippi.
    Jan. 9, 2014.
    Rehearing Denied April 17, 2014.

      R. Shane McLaughlin, Nicole H. McLaughlin, Tupelo, attorneys for appellant.
    Elizabeth Fox Ausbern, attorney for ap-pellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice, for the Court:

¶ 1. Donald and Penny Brewer and their respective attorneys negotiated, agreed to, and signed off on a proposed order that changed custody of one of the parties’ two children, John, to Donald, and reduced his child-support obligation. Although the attorneys failed to present the order to the chancellor, the Brewers — believing it had been entered — complied with its terms for several years. But when the chancellor later learned that Donald had paid the reduced amount of child support, he refused to admit any evidence of the agreement, ordered Donald to pay the full amount of arrearage, and held him in contempt. We hold that Donald should not have been held in contempt; that he is entitled to credit for any payment of support he made directly to, or on behalf of, John; and that the chancellor should have granted Penny a judgment for past-due child support, reduced by the credit. Accordingly, we reverse and remand for a hearing consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. When Donald R. Brewer and Penny Mathis Holliday divorced in 2005, the chancellor awarded physical custody of their two minor children to Penny and ordered Donald to pay $1,185 per month in child support. Soon after the divorce was final, one of the children, John, moved in with Donald, who nevertheless continued to pay the full amount of child support to Penny.

¶ 3. The following year, the parties became embroiled in contempt litigation. After submitting to private mediation, the parties agreed that Donald would have custody of John, and that Donald’s monthly child-support obligation would be reduced from $1,185 to $600. Both parties signed a memorandum of understanding that set forth the agreement, and the parties’ respective counsel approved an agreed order of modification.

¶ 4. For reasons not explained in the record, the parties’ attorneys failed to submit the agreed order to a chancellor for approval. But, according to email and other communications, the parties and their respective counsel all believed the order had been entered and was in force, and the parties complied with the terms of the agreement.

¶ 5. Two years later, when Donald filed for bankruptcy, Penny learned that the agreed order had not been entered, so she demanded child-support arrearage in the bankruptcy proceedings. The bankruptcy judge deferred the child-support issue to the chancery court, but the chancellor delayed addressing the matter until the conclusion of the bankruptcy proceedings.

¶ 6. After the conclusion of Donald’s bankruptcy proceedings, Penny instituted the present action by filing a Petition for Contempt and Other Relief, alleging that, since July 2006, Donald had paid only $600 per month of his $1,185 monthly child-support obligation. This, according to Penny, resulted in an arrearage of $31,005. Penny also asked the court for attorney’s fees in the amount of $3,500 and $110 in court costs.

¶ 7. In his answer to the complaint, Donald argued that the agreed order should govern because all parties had acted in compliance with it until 2009, when Donald filed a motion to have the agreed order entered nunc pro tunc, and Penny decided to withdraw her consent to the order.

¶ 8. On the day of the hearing, the chancellor began by ruling that the agreement was unenforceable, and that he would not allow evidence of it, although he did allow the parties to make a proffer of the agreement and proposed order. Donald testified that he continued to pay child support, even though he “had the bigger burden because John was now in high school.” He further testified that John:

was approaching high school, you know, high school graduation and there’s a lot of expense and costs to that. But I had agreed as part of the mediation and she had agreed to reduce, not to end the child support but only to reduce it.

¶ 9. The chancellor entered a judgment against Donald for back-due child support in the amount of $34,515, which represented the full amount of the difference between the child support he had paid per month and the $1,185 required in the original divorce decree. The chancellor found Donald in willful and contumacious contempt of the court for failing to pay the full amount of child support and awarded Penny $8,500 in attorney’s fees.

¶ 10. Donald appealed, and the Court of Appeals affirmed and awarded an additional $1,750 to compensate Penny for her appellate attorney fees. We granted cer-tiorari.

ANALYSIS

¶ 11. We apply “a limited standard of review on appeals from chancery court.” We review questions of law de novo, but we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.”

¶ 12. Donald relies on Wright v. Wright to argue that, because all parties acted in accordance with the terms of the agreed order, the chancellor should have entered it nunc pro tunc. In Wright, the Court of Appeals affirmed enforcement of an extrajudicial modification of child support because both parties followed the terms of the agreement “under their good faith beliefs” that the court had entered the order. Here, however, the Court of Appeals rejected this argument because it found that Donald had abandoned the agreed order by filing a motion to modify child support from $1,185 to $737.

¶ 13. Penny claims Donald owes her back child support for both children, but she does not dispute that, for a year, she received child support for John, even though he resided with Donald. Nor does she dispute that the agreed order, which both parties operated under for at least two years, contemplated that Donald would continue to have care, custody, and control of John, and that he would pay a reduced amount of child support.

¶ 14. This Court has recognized that, at times, equity may “suggest ex post facto approval of extra-judicial adjustments in the manner and form in which support payments have been made.” For instance, in Alexander v. Alexander, this Court held that equity required crediting a father for payments of child support made directly to the child—once the child moved in with him—instead of to the mother. And in Varner v. Varner, we explained that “the father may receive credit for having paid child support where, in fact, he paid the support directly to or for the benefit of the child, where to hold otherwise would unjustly enrich the mother.” Noncustodial parents pay child support to custodial parents for the benefit of the child, not the parent, and that support belongs to the child, not the custodial parent.

¶ 15. This Court has held that “parents cannot contract away rights vested in minor children. Such contracts would be void against public policy.” Only the court can grant a judgment to modify a parent’s support obligation; thus, “a party making an extrajudicial modification does so at his peril.” Donald and Penny created an extrajudicial modification of child support, which the court never entered. As such, the chancery court did not err by refusing to enter the agreed order nunc pro tunc.

¶ 16. Only a few weeks passed after the parties divorced before John moved in with Donald. Even so, Donald continued to pay Penny $1,185 per month in child support for two children until August 2006. The chancellor, knowing that Donald had cared for and supported John throughout the time period in question, should have considered whether, under equitable principles, Donald was entitled to some amount of credit for his direct support of John.

Willful contempt

¶ 17. Although the chancellor refused to admit much of the evidence concerning the parties’ modification agreement, the agreed order, and their belief that it was in force, he did allow the parties to make a proffer. Because this evidence goes squarely to the heart of the contempt matter, the chancellor should have admitted it.

¶ 18. This Court has held that “[a] citation for contempt is proper only when the contemner has willfully and deliberately ignored the order of the court,” and evidence that a person did not willfully or deliberately violate the court’s order serves as a defense to contempt proceedings.

¶ 19. The record, which includes the proffer, clearly indicates neither Donald nor Penny knew the attorneys had failed to present the agreed order for entry. Until Penny filed notice of her claim for child-support arrearage with the bankruptcy court in January 2008, Donald believed that the court had entered the agreed order. So, during this period of time, he could not have willfully ignored the order of the court.

¶ 20. After Penny made her claim in the bankruptcy proceedings in 2008, Donald filed a motion for modification. Whether during this period of time Donald willfully and deliberately ignored the court’s order is dependent upon the chancellor’s findings on remand. The chancellor must determine whether—in light of Donald’s motion for a reduction in child support and his direct care for, and support of, John—a finding of contempt is appropriate.

CONCLUSION

¶ 21. We find that, in considering Penny’s claim for past-due child support, the chancellor should have considered the undisputed fact that, for almost the entire period, John resided with Donald, and Donald provided direct support to him. Thus, we reverse the judgments of both the chancery court and the Court of Appeals, and we remand this case to the chancery court for a hearing on these issues, consistent with this opinion.

¶ 22. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Tucker v. Prisock, 791 So.2d 190, 192 (Miss. 2001) (citing Reddell v. Reddell, 696 So.2d 287, 288 (Miss. 1997)).

      . Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14 (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)).

      . Wright v. Wright, 737 So.2d 408, 410 (Miss. Ct.App.1998).

      . Smith v. Smith, 20 So.3d 670, 674 (Miss. 2009).

      . Alexander v. Alexander, 494 So.2d 365, 368 (Miss.1986).

      . Varner v. Varner, 588 So.2d 428, 435 (Miss. 1991).

      . Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986) (citing Wilson v. Wilson, 464 So.2d 496 (Miss. 1985)).

      . Alexander, 494 So.2d at 367.

      . Calton, 485 So.2d at 310.

      . Id. at 311.

      . Varner, 588 So.2d at 434 (citing Alexander, 494 So.2d at 367-68).

      . Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss. 1997) (citing Stevison v. Woods, 560 So.2d 176, 180 (Miss.1990); Cooper v. Keyes, 510 So.2d 518, 519 (Miss. 1987)).

      . Mizell v. Mizell, 708 So.2d 55, 64 (Miss. 1998).