author: AMY, Judge. COOKS, J., KEATY, Judge,

text:
    PBGS, L.L.C., et al. v. Rhyn L. DUPLECHAIN, Assessor for St. Landry Parish, et al.
    No. 13-278.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 18, 2013.

      Lawrence P. Simon, Jr., Liskow & Lewis, APLC, Lafayette, LA, for Plaintiffs/Appellants, PBGS, L.L.C., Port Barre Investments, L.L.C., c/o Spectra Energy Corporation.
    Cheryl M. Kornick, James C. Exnicios, Elisabeth Lorio Baer, Liskow & Lewis, APLC, New Orleans, LA, for Plaintiffs/Appellants, PBGS, L.L.C., Port Barre Investments, L.L.C., c/o Spectra Energy Corporation.
    Brian A. Eddington, Baton Rouge, LA, for Defendant/Appellee, Rhyn L. Duple-chain, Assessor for St. Landry Parish.
    Court composed of Sylvia R. Cooks, Marc T. Amy, Billy Howard Ezell, J. David Painter, and Phyllis M. Keaty, Judges.
   AMY, Judge.

LThe plaintiffs filed the instant suit questioning St. Landry Parish’s assessment of two salt caverns as “other property” rather than “land.” The defendant tax assessor filed a motion for partial summary judgment on the issue of the classification. At the hearing, the trial court rejected the plaintiffs’ contention that it lacked subject matter jurisdiction and further determined that the defendant appropriately classified the salt caverns as “other property.” The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

At issue in this matter is the proper tax classification of two salt caverns located under a tract of land in St. Landry Parish owned by PBGS, L.L.C. According to the record, PBGS leases the salt caverns to Port Barre Investments, LLC c/o Spectra Energy Corp for use as underground natural gas storage facilities. In its capacity as lessee, Spectra indemnifies PBGS for its ad valorem taxes. Both are parties to this matter.

This proceeding arose after the St. Landry Parish Tax Assessor, Rhyn L. Duple-chin, classified the salt caverns as “other property” (taxable at 15% of the fair market valuation) in its 2011 assessment. PBGS and Spectra have contested that valuation, arguing that the salt caverns must, instead, be classified as “land” 12(taxable at 10% of the fair market value). As revealed in the record, PBGS and Spectra appealed the assessment with the St. Landry Board of Review, which upheld the valuation.

PBGS and Spectra thereafter pursued two actions. One action, styled as an appeal of the Board of Review’s decision, was lodged with the Louisiana Tax Commission. While that matter was pending, Spectra paid the 2011 taxes assessed and designated a portion of those taxes as having been paid under protest. In a letter addressed to Sheriff Bobby J. Guidroz, in his capacity as Sheriff and Ex-Officio Tax Collector, Spectra informed the Sheriff of its correctness challenge to the Louisiana Tax Commission pursuant to La.R.S. 47:2134(B)(2)(b). Additionally, Spectra informed Sheriff Guidroz that “because the disputed issues giving rise to the partial payment under protest ... may constitute a legality challenge” it intended to file for recovery of the protested taxes under La.R.S. 47:2134(C).

Subsequently, PBGS and Spectra filed this matter in the Twenty-Seventh Judicial District Court as a “Petition for Refund of Tax Paid Under Protest.” As pertinent to this proceeding, the plaintiffs contested the 2011 classification of the salt caverns as “other property” (taxable at 15% of the fair market valuation) rather than as “land” (taxable at 10% of the fair market value). The plaintiffs named Assessor Duplechain and Sheriff Guidroz as defendants.

|sIn their petition, the plaintiffs noted the appeal to the St. Landry Parish Board of Review, the proceeding before the Louisiana Tax Commission, and the payment made under protest. As far as the proceeding in the trial court, the plaintiffs asserted that they were availing themselves of the provisions of La.R.S. 47:2134(C) in order to protest “the attempt by St. Landry Parish to levy overstated and illegal taxes on the Property.” They further stated that:

In the alternative, and in the event that it is determined that the claims pending before the Louisiana Tax Commission do not constitute a correctness challenge pursuant to [La.R.S.] 47:2134, Plaintiffs are filing this petition pursuant to [La. R.S.] 47:2134(C) because the taxes paid under protest levied by St. Landry Parish constitute illegal taxes and further, Plaintiffs are protesting the method of enforcement of these illegal taxes.

The plaintiffs alleged that La. Const. art. 7, § 18(B) and the Louisiana Civil Code dictate that salt caverns are properly classified as “land” subject to the 10% of fair market valuation for ad valorem tax purposes thereby rendering the assessment of the salt caverns as “other property” “both incorrect and illegal.”

The petition’s prayer asked the trial court to order the assessor to adjust the assessment of the property, classifying the salt caverns as “land.” The petition also sought the return of the taxes paid under protest.

In response, Assessor Duplechain filed a motion for partial summary judgment on the issue of classification of the salt caverns as “other property” rather than “land” for taxation assessment purposes. In opposition, the plaintiffs contested whether the trial court had subject matter jurisdiction to consider the issue. The plaintiffs pointed to their matter pending before the Louisiana Tax Commission and argued that their claim was, in fact, merely a correctness challenge and was, therefore, only properly resolved by that administrative proceeding. On the merits, the plaintiffs argued that the property at issue | ¿constituted naturally occurring formations and could, therefore, only be classified as “land” for taxation purposes.

After argument, the trial court concluded that it had subject matter jurisdiction and, ultimately, rendered judgment in favor of the Assessor concluding that: “Assessor Duplechain properly classified the underground natural gas storage caverns that are the subject of this suit as “other property” for purposes of ad valorem taxation[.]” The trial court certified the matter as a final judgment and determined that there was no just reason for delay.

The plaintiffs appeal, asserting that the trial court erred in: 1) improperly certifying a partial summary judgment as a final, appealable judgment; 2) asserting subject matter jurisdiction; and 3) in rendering judgment in favor of the Assessor on the merits.

Discussion

Final Judgment

The plaintiffs first contest the trial court’s certification of the partial summary judgment as a final judgment for appeal purposes. They point out that, although the trial court designated the matter as a final appealable judgment pursuant to La.Code Civ.P. art. 1915(B), the trial court did not provide reasons for its finding that there was no just reason for delay. In application of the factors of R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, the plaintiffs allege this matter should not have been certified as appealable in light of their pending matter before the Louisiana Tax Commission and the fact that an issue regarding the assessment of active service wells was not resolved by the partial summary judgment.

|sWe find no merit in the plaintiffs’ argument on this point. Louisiana Code of Civil Procedure Article 1915(B)(1) (emphasis added) provides:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

In the absence of the trial court’s express reasons underlying its determination “that there is no just reason for delay,” this court evaluates the appropriateness of that designation. See Messinger, 894 So.2d 1113. While not an exclusive list, the following factors may be used in a court’s consideration of whether a partial judgment should be certified as ' appealable:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity and competing claims, expense, and the like.

Messinger, 894 So.2d at 1122 (quoting Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir.1975)). “However, the overriding inquiry for the trial court is whether there is no just reason for delay. Courts of'appeal, when conducting de novo review in matters where the trial court fails to give explicit reasons for certification, can consider these same criteria.” Id. at 1122-23.

In consideration of these factors, we do not disturb the trial court’s finding that this matter was a final judgment for purposes of appeal. Rather, the 1(¡adjudicated claim regarding the classification of the salt caverns as “other property” rather than “land” obviously differs from the petition’s unresolved issue of whether the Assessor improperly “used alternative methods from those provided in § 907 of the Louisiana Tax Commission Rules and Regulations to arrive at the assessed value of the active service wells on the Property.” Additionally, because the discrete issue of the classification of the salt caverns was resolved by the trial court’s ruling, it is difficult to see how the need for review could be “mooted by future developments in the trial court” or how this issue, once resolved on appeal, would be considered again in this proceeding. See Messinger, 894 So.2d 1113. Finally, there are no miscellaneous factors that would give cause for delay. While the plaintiffs suggest that their previously-filed matter before the Louisiana Tax Commission will ultimately be appealed, we find no reason to delay the instant matter over which the trial court exercised original subject matter jurisdiction.

In sum, we find that the trial court properly designated the judgment as a final judgment for purposes of appeal.

This assignment lacks merit.

Subject Matter Jurisdiction

Although the plaintiffs filed the petition instituting this matter, they assert that the trial court erred in concluding that it had subject matter jurisdiction to hear the motion for summary judgment. Rather, the plaintiffs contend that their claim actually contests the description of the property as “other property” rather than “land” and that it is, therefore, a correctness challenge to be determined by the Louisiana Tax Commission. The Assessor maintains, instead, that the trial court appropriately exercised subject matter jurisdiction as the plaintiffs’ petition advanced a legality claim.

|7The classification of property for tax assessment purposes is provided for by Louisiana Constitution Article 7, § 18, in pertinent part, as follows:

Section 18. (A) Assessments. Property subject to ad valorem taxation shall be listed on.the assessment rolls at its assessed valuation, which, except as provided in Paragraphs (C) and (G), shall be a percentage of its fair market value. The percentage of fair market value shall be uniform throughout the state upon the same class of property.
(B) Classification. The classifications of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows:
Classifications Percentages
1. Land 10%
5. Other property 15%
The legislature may enact laws defining electric cooperative properties and public service properties.
(C) Use Value. Bona fide agricultural, horticultural, marsh, and timber lands, as defined by general law, shall be assessed for tax purposes at ten percent of use value rather than fair market value. The legislature may provide by law similarly for buildings of historic architectural importance.
(D) Valuation. Each assessor shall determine the fair market value of all propei'ty subject to taxation within his respective parish or district except public service properties, which shall be valued at fair market value by the Louisiana Tax Commission or its successor. Each assessor shall determine the use value of property which is to be so assessed under the provisions of Paragraph (C). Fair market value and use value of property shall be determined in accordance with criteria which shall be established by law and which shall apply uniformly throughout the state.

This fundamental inquiry as to subject matter jurisdiction requires consideration of Louisiana’s constitutional and statutory framework for challenges to property tax assessments. As explained in Triangle Marine, Inc. v. Savoie, 95-2873,8 p. 3 (La.10/15/96), 681 So.2d 937, 939, this “two-track procedure” provides for both chai-lenges to the “correctness” of a tax assessment and for challenges to the “legality” of the tax levied. The “nature of the challenge” dictates the entity that hears and resolves such disputes. Gisclair v. Louisiana Tax Comm’n, 09-0007, p. 5 (La.6/26/09), 16 So.3d 1132, 1135.

With regard to the correctness challenge, Louisiana Const. art. 7, § 18(E) (emphasis added) provides that:

The correctness of assessments by the assessor shall be subject to review first by the parish governing authority, then by the Louisiana Tax Commission or its successor, and finally by the courts, all in accordance with procedures established by law.

Thus, in a correctness challenge, the trial court is granted only appellate jurisdiction.

However, Louisiana Constitution Article 7, § 3(A) (emphasis added) dictates that: “The legislature shall prohibit the issuance of process to restrain the collection of any tax. It shall provide a complete and adequate remedy for the prompt recovery of an illegal tax paid by a taxpayer.” Thus, as statutorily provided for, a “legality” challenge may be filed directly in the district court. Triangle Marine, 681 So.2d 937. Moreover, and specifically with regard to suits to recover taxes paid under protest, La.R.S. 47:2134(D) (emphasis added) provides:

The right to sue for recovery of a tax paid under protest as provided in this Section shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of all questions arising in connection with a correctness challenge or the enforcement of the rights respecting the legality of any tax accrued or accruing or the method of enforcement thereof. The right to sue for recovery of a tax paid under protest as provided in this Section shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, or in violation of any act of the Congress of the United States, the Constitution of the United States, or the \cjConstitution of the state. The portion of the taxes which is paid by the taxpayer to the collecting officer or officers that is neither in dispute nor the subject of such suit shall not be made subject to the protest.

As stated above, it was the plaintiffs’ petition that instituted this matter in the district court in St. Landry Parish. Yet, it is the plaintiffs that now contest the trial court’s subject matter jurisdiction to hear the matter that they placed before it. However, review of the petition, itself, indicates that the plaintiffs framed their objection to the property tax assessment in repeated terms of unconstitutionality and illegality. At its core, the plaintiffs’ petition alleges that the tax assessor classified the salt caverns as “other property” in violation of La. Const. art. 7, § 18(B). While the plaintiffs noted their corresponding correctness challenge filed with the Louisiana Tax Commission, the plaintiffs specifically referred to the instant matter as pursuit of a legal challenge. In this regard, the petition states that:

19.
In the payment under protest letter, the Taxpayer notified the Sheriff that, in addition to the correctness challenge filed with the Louisiana Tax Commission, Taxpayer also would file a legality challenge suit seeking the recovery of the ad valorem taxes paid under protest.
20.
By copy of the payment under protest letter addressed to the Assessor and the Louisiana Tax Commission, the Taxpayer notified the Assessor and Mr. Peters that it had paid the Tax Bill under protest and that it intended to file a legality challenge suit seeking recovery of the taxes paid under protest.
21.
Pursuant to the provisions of [La.R.S.] § 47:2134(C),[] Plaintiffs are protesting the attempt by St. Landry Parish to levy 11floverstated and illegal taxes on the Property. In the alternative, and in the event that it is determined that the claims pending before the Louisiana Tax Commission do not constitute a correctness challenge pursuant to [La.R.S.] 47:2134, Plaintiffs are filing this petition pursuant to [La.R.S.] § 47:2134(0 because the taxes paid under protest levied by St. Landry Parish constitute illegal taxes and further, Plaintiffs are protesting the method of enforcement of these illegal taxes.

In successive paragraphs, the plaintiffs make repeated claims of illegality in the imposition and enforcement of the 2011 assessment and the “misclassif[ication]’’ of the salt caverns as “other property” contrary to La. Const. art. 7, § 18(B). The plaintiffs further assert that “controlling Louisiana tax law” and “the Louisiana Civil Code” dictate the classification of the salt caverns as “land” rather than “other property.”

In this light, it is difficult to see how the plaintiffs’ claim does not pose a legality challenge. Rather, the plaintiffs lodged a direct challenge to the constitutionality and legality of the tax, as assessed. Further, the petition makes a |nseparate and specific claim as to the “method of enforcement of these illegal taxes.” See La.R.S. 47:2134(D).

Further, and in consideration of jurisprudence distinguishing a correctness challenge from a legality challenge, we, again, conclude that the plaintiffs’ challenge to the constitutionality and legality of the assessment must be taken at face value for jurisdictional purposes. In Gisclair, 16 So.3d at 1136, the supreme court explained that: “[C]orrectness challenges are directed at issues of regularity or correctness of the assessment, such as overvaluation and misdescription, while legality challenges are directed at issues involving claims that the assessment is void for radical defects that bring into question the existence of any valid assessment.” Subsequently, in Triangle Marine, 681 So.2d 937, the supreme court explained that a legality challenge also encompasses those claims questioning the constitutionality of the administration of the tax. Specifically, the supreme court stated that “a challenge to a tax assessment need not contest the validity of the ad valorem tax itself to constitute a legality challenge. Rather, an ‘as applied’ challenge, such as the one asserted by the taxpayers herein, can be a legality challenge.” Id. at 941. Further, in ANR Pipeline Co. v. Louisiana Tax Commission, 02-1479 (La.7/2/03), 851 So.2d 1145, the supreme court explained that the Louisiana Tax Commission, an administrative agency, lacks the subject matter jurisdiction over constitutional questions. Instead, and because the district court was observed to have original jurisdiction to rule on issues of constitutionality, the supreme court concluded that “all taxpayers ... may file protests based on constitutional challenges directly in district court.” Id. at 1151.

Reported jurisprudence is of limited guidance to the court on the question of whether a claim of “misclassification” under La. Const. art. 7, § 18(B) is a |12correctness challenge or whether it is a legality challenge. The plaintiffs direct this court to Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162 (La.4/3/02), 813 So.2d 351, wherein the Louisiana Tax Commission first considered the question of whether certain property was properly classified as “public service property” before the question proceeded through the courts. However, upon analysis, Cleco is ultimately not helpful on the issue of subject matter jurisdiction. Instead, the matter seems to have originated in the Louisiana Tax Commission and passed to the courts without comment as subject matter jurisdiction was not specifically addressed by the courts. Id. Further, Cleco predated the supreme court’s decision in ANR, 851 So.2d at 1151, which, as explained above, provided that “all taxpayers .., may file protests based on constitutional challenges directly in district court.”

Furthermore, to the extent that there is limited assistance in the jurisprudence, it is apparent that the claim in this case is distinct from the type of correctness challenge involving a challenge to a “value” or a method used to arrive at “value.” Gisclair, 16 So.3d 1132. In fact, this case is not at all about value:

Rather, the essential claims of the plaintiffs’ petition is that La. Const. art. 7, § 18(B) ensures that the plaintiffs’ property is to be classified as “land” and subject to taxation at a rate of 10% of fair market value. The plaintiffs argue that, contrary to that constitutional provision, the Assessor classified their property as “other property” and subjected it to a taxation rate of 15% of fair market value. That classification, it must follow, was unconstitutional as applied to them.

Given the essential qualities of this pointed claim lodged by the plaintiffs, we find no error in the trial court’s determination that it had original jurisdiction over this matter. Accordingly, we turn to the merits of the plaintiffs’ claim..

| 13Classification

As related above, the plaintiffs question the classification of the salt caverns as “other property” rather than “land.” In particular, the plaintiffs assert that the Assessor is attempting “to characterize holes in land — the ‘salt caverns’ — as a separate ‘improvement’ rather than as a part of the land.” The plaintiffs contend that such a characterization is misleading and that “[a]ll that is at issue in this case is the salt dome itself, which is a naturally occurring geologic feature that now has holes — the ‘salt caverns’ — in it.” The record, however, indicates otherwise.

While it is obvious that the original salt mass was naturally occurring, it is equally clear that the existing salt caverns were man-made. In opposition to the motion for summary judgment, the plaintiffs submitted the deposition testimony of Spectra representative and petroleum engineer, Scott Rouze. Mr. Rouze denied that the two salt caverns exist due to a naturally-occurring void in the underground salt structure. Rather, caverns such as these are created following a period of planning, permitting by various governmental entities, and laborious development of the once solid salt mass. This process, as described by Mr. Rouze, involves the drilling of the mass, the injection of freshwater in order to dissolve the salt mass, and the placement of a multi-purpose infrastructure of casing into the cavern. The process of creating the cavern involves various engineering specialties and is lengthy, lasting approximately two-to-three years as described by Mr. Rouze. And, in addition, it is a costly process. According to Mr. Rouze, the creation of this type of facility could cost approximately $90 million. As a result of the process, |i4however, each cavern has a volumetric capacity of six-ten million barrels of natural gas.

Given these facts, supplied by the plaintiffs, it is apparent that the construction and commercial development of these caverns is quite distinct from the original naturally-occurring feature of the property. Further, the improvement of the property for commercial purposes is continuing with the development of two additional caverns on the property as described by Mr. Rouze. It is clear by the breadth, scope, and commercial purpose of the salt cavern’s creation from the original salt mass that a commercial improvement has resulted. Both parties state in their brief to this court that commercial improvements are included within the “other property” classification. Citing, Cleco, 813 So.2d 351. In this regard, the record supports the trial court’s determination that “Assessor Duplechain properly classified the underground natural gas storage caverns that are the subject of this suit as “other property” for purposes of ad valo-rem taxation[.]”

On a final note, we recognize that the plaintiffs assert that La.Civ.Code art. 490 prohibits recognition of a distinct part of the “land” for separate taxation. However, Article 490 only provides that:

Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it.
The owner may make works on, above, or below the land as he pleases, and draw all the advantages that accrue from them, unless he is restrained by law or by rights of others.

| lfiAlthough the plaintiffs conflate the question of ownership with their arguments relating to the determination of what constitutes “other property” under La. Const, art. 7, § 18(B), no question of ownership of the salt caverns has been posed by this petition. Spectra merely indemnifies PBGS for the ad valorem taxation pursuant to their lessor/lessee relationship. As correctly recognized by the trial court at the hearing, ownership is distinct from classification of taxation. It is not apparent that the ability to control everything above and below the property as described in La.Civ.Code art. 490 prohibits a classification of works/improvements thereon as “other property” rather than “land.” Although the plaintiffs reference La.Civ.Code art. 493 and suggest that classification of the salt caverns as “other property” indicates that it is being treated as capable of separate ownership, apart from the ownership of the land, we reject that argument as inapplicable to the narrow taxation question before the court.

This assignment lacks merit.

1 |fiDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the appellants, PBGS, L.L.C. and Port Barre In-vestménts, LLC, c/o Spectra Energy Corp.

AFFIRMED.

COOKS, J., dissents and assigns written reasons. *

KEATY, J., dissents and assigns written reasons.

COOKS, J.,

Dissents.

I join Judge Keaty and write further to express that the majority position is not only out the box, it is legally defective.

KEATY, Judge,

dissenting.

In my view, the trial court lacked subject matter jurisdiction to hear PBGS’ appeal because it amounted to a classic correctness challenge that must first be brought before the Louisiana Tax Commission. Accordingly, I would vacate the trial court judgment and remand this matter to the trial court to proceed in accordance with La. Const. art. 7, § 18(E) and La.R.S. 47:1998.

      . In the petition instituting this matter, the PBGS and Spectra alleged:
      7.
      Spectra is engaged in the oil and gas business in St. Landry Parish, Louisiana. Spectra leases the Property from PBGS and uses the salt caverns as underground natural gas storage facilities.
      8.
      As lessee of the Property, Spectra indemnifies the Taxpayer by paying its ad valorem taxes and, as such, is also a proper plaintiff in this suit for refund to collect tax paid under protest.

      . In their reply brief to this court, the plaintiffs explain that the Louisiana Tax Commission has rendered its decision. The plaintiffs argue that it is that opinion which must be appealed. They attach a copy of the Louisiana Tax Commission ruling. However, that ruling, obviously released after the perfecting of this appeal, is not contained in this record, but is merely attached to the plaintiffs’ reply brief. We do not now consider that ruling or disturb any ongoing proceedings pending elsewhere.

      . The petition also contested the valuation of certain active oil, gas and other wells. However, that aspect of the plaintiffs’ petition is not now at issue.

      . Louisiana Revised Statutes 47:2134 provides:
      C. (1) A person resisting the payment of an amount of ad valorem tax due or the enforcement of a provision of the ad valorem tax law and thereby intending to maintain a legality challenge shall timely pay the disputed amount due under protest to the officer or officers designated by law for the collection of the tax and shall give such officer or officers, notice at the time of payment of his intention to file suit for the recovery of the protested tax. Upon receipt of a notice, the protested amount shall be segregated and held by the collecting officer for a period of thirty days.
      (2)A legality challenge suit must be filed within thirty days from the date of the protested payment. If a suit is timely filed contesting the legality of the tax or the enforcement of a provision of the tax law and seeking recovery of the tax, then that portion of the taxes paid that are in dispute shall be further deemed as paid under protest, and that amount shall be segregated and shall be further held pending the outcome of the suit. The portion of the taxes that is paid by the taxpayer to the collecting officer or officers that is neither in dispute nor the subject of a suit contesting the legality of the tax shall not be made subject to the protest.
      (3) In any such legality challenge suit, service of process upon the officer of officers responsible for collecting the tax, the assessor or assessors for the parish or district, or parishes or districts in which the property is located, and the Louisiana Tax Commission shall be sufficient service, and these parties shall be the sole necessary and proper party defendants in any such suit.
      (4) If the taxpayer prevails, the collecting officer or officers shall refund such amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds were received by the collecting officer or officers to the date of the refund. If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest at the rate set forth above during the period from the date the notice of intention to file suit for recovery of taxes was given to the officer until the date the taxes are paid.

      . Mr. Rouze testified that the estimated costs represent "the cavern development costs, the labor costs, the associated maintenance costs, and the freshwater — producing the freshwater so you can pump it and disposing the brine that has come back out of the cavern. A lot of that is electricity intensive, obviously pump maintenance and administrative and human costs.”
      While we recognize Mr. Rouze testified regarding the development of a salt cavern facility, in general, since Spectra did not develop the property now at issue, his description illuminates the Assessor's view of that facility as an improvement.

      . Mr. Rouze explained that, in the context of natural gas storage, each barrel is approximately forty-two gallons.

      . Louisiana Civil Code Article 493 provides, in part: "Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent.”

        See also La.Civ.Code art. 491 (which provides that: "Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, they are presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed for registry in the conveyance records of the parish in which the immovable is located.”); La.Civ.Code art. 493.1 (which provides that: "Things incorporated in or attached to an immovable so as to become its component parts under Article 465 and 466 belong to the owner of the immovable.’,’).


source: Caselaw Access Project

author: SANDRA CABRINA JENKINS, Judge.

license: Public Domain

text:
    In re CERTAIN ST. BERNARD PARISH GOVERNMENT COMPUTER DISKS c/w Johnette Martin v. ST. BERNARD PARISH GOVERNMENT, through its President, Charles PONSTEIN, and Lynn Dean, Individually and in his capacity as former Parish President.
    No. 2013-CA-1054.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.
    Rehearing Denied Jan. 8, 2014.

      Johnette L. Martin, Baton Rouge, LA, Plaintiff/Appellant, In Proper Person.
    Gregory W. Rome, Sharon M. Williams, Williams & Rome, L.L.C., Chalmette, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

| í Plaintiff and Appellant, Johnette Martin (“Martin”), appeals the Judgment of the St. Bernard Parish District Court ordering her to pay $1,997.87 in costs to the prevailing party, Defendant and Appellee, Lynn Dean (“Dean”), in his individual capacity. Martin raises six discrete assignments of error to the trial court’s judgment taxing costs against her, variously challenging the allocation of a $615 transcript fee; the allocation of allegedly dupli-cative costs associated with a missed deposition; the allocation of costs associated with Dean’s unsuccessful Exception for No Cause of Action; the allocation of miscellaneous costs that Martin attributes to clerical error; and the allocation of other costs that she contends the trial court was not empowered to tax by statute. Finding no abuse of discretion, we affirm.

BACKGROUND

The underlying facts of this case are largely irrelevant to the instant appeal. It is enough to know that Martin filed suit against the St. Bernard Parish 12Government, Dean in his capacity as then-Parish President, and Dean in his individual' capacity, alleging employment discrimination and other tortious conduct by the defendants. In fall 2011, Dean filed a motion for summary judgment. After an October 21, 2011 hearing on the motion, the trial court requested briefing regarding a novel theory Martin raised at the argument. The court further requested that both parties file their post-hearing briefs on the same day, expressly foreclosing any opportunity for either party to respond to the other. It granted summary judgment to Dean on December 29, 2011. Dean then filed for a rule to tax costs and for award of attorney’s fees.

The trial court held a contradictory hearing on Dean’s rule on costs and fees on November 30, 2012. The court repeatedly stated that the nature of the hearing was to address the legitimacy of the costs and fees sought, not quantum. Martin exclusively contested the legitimacy of $615 Dean claimed in connection with his purchase of the October 21 motion for summary judgment transcript, which she argued was not a taxable cost under applicable statutory and decisional authority.

On February 8, 2013, the trial court denied Dean’s rule as it related to attorney’s fees, but granted his request for costs in the amount of $1,997.37. In its accompanying Reasons for Judgment, the trial court identified the costs to be taxed against Martin as follows:

—$1,248.00 in costs directly paid to the Clerk’s Office;
$615.00 in costs for a transcript of the October 21, 2011 summary judgment hearing;
[3 — $128.47 in copy costs; and
—$5.90 in costs to obtain copies of Times-Picayune articles related to Dean’s summary judgment motion.

Martin timely appealed the judgment taxing costs against her.

DISCUSSION

“A trial court has great discretion in awarding costs ... and can only be reversed on appeal upon a showing of an abuse of that discretion.” Hendrix v. Maison Orleans I, L.L.C., 11-1349, p. 16 (La.App. 4 Cir. 9/26/12), 101 So.3d 1013, 1023, reh’g denied (10/24/12), writ denied,, 12-2426 (La.1/11/13), 107 So.3d 616 (quoting Watters v. Dep’t of Soc. Services, 08-0977, p. 49 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1162) (internal citations omitted). This discretion is not boundless, however. Both Louisiana Code of Civil Procedure article 1920 and Revised Statutes (R.S.) 13:4533 regulate the allocation of costs.

Article 1920 states that “[ejxcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” La. C.C.P. art. 1920. This equitable power to allocate costs is limited to costs that positive law identifies as taxable. Hendrix, 11-1349, p. 16, 101 So.3d at 1024 (quoting Watters, 08-0977, p. 50, 15 So.3d at 1162) (internal citations omitted). Taxable costs are defined narrowly by R.S. 13:4533 to include “costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court[.]” La. R.S. 13:4355.

These rules guide our analysis of the trial court’s allocation of costs.

|4I: The trial court did not abuse its discretion in taxing the cost of the transcript used by Dean.

Martin contends that the trial court improperly taxed $615 in costs for a court reporter’s transcript ordered by Dean following their October 2011 summary judgment hearing. Martin asserts that the transcript was unnecessary for post-hearing briefing requested by the trial court and that she should not be charged with the cost of obtaining the document because it was not used by Dean “on the trial” of a matter within the meaning of R.S. 13:4533. Martin’s contention lacks merit.

R.S. 13:4533 states that the trial court shall tax, among other things, “costs of taking depositions and copiés of acts used on the trial [.]” La. R.S. 13:4533 (emphasis and amendments added). Generally, the statute’s “on the trial” clause has been read to mean that a transcript is taxable only if offered into evidence. See Watters, 08-0977, p. 50, 15 So.3d at 1162 (citing Succession of Franz, 242 La. 875, 139 So.2d 216, 219 (1962)); Lacy v. ABC Ins. Co., 97-1182, (La.App. 4 Cir. 4/1/98), 712 So.2d 189, 196-97; Kommer v. Assenheimer, 174 So.2d 197, 198 (La.App. 4 Cir.1965) (citing Beattie v. Dimitry, 168 La. 81, 121 So. 581, 582-83 (1929)); see also Moran v. Harris, 93-2227, p. 1 (La.App. 1 Cir. 11/10/94), 645 So.2d 1248, 1250. However, this Court has recognized that costs “necessary to bring [a] case to trial,” though not expressly offered into evidence, are within the trial court’s discretion to tax. See Tipton v. Campbell, 08-0139, p. 27 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 45.

|sHere, Dean concedes that the transcript was neither cited by his post-hearing motion nor introduced into evidence as an attachment to that motion. The trial court likewise noted that the transcript was not offered in evidence, but nevertheless taxed the document’s cost against Martin, noting that it was “used on trial for Mr. Dean to address and/or defend Ms. Martin’s claims.” In light of the particular facts of this case, we agree with the trial court that Dean’s consultation with the hearing transcript was sufficient to render it a taxable cost.

In its reasons for judgment, the trial court acknowledged the complexity and duration of this case. The court also emphasized Dean’s need to rely on the transcript in order to defend his position. It is important to our reasoning that the Martin did not cite to any case law when she raised her new theory-for the first time at the summary judgment hearing. This means that Dean did not have any case authority to guide his post-hearing response to Martin. It is .equally important to us that the trial court ordered supplemental briefing that did not afford Dean a chance to review and reply to Martin’s argument in its final form. Because of these circumstances, it was necessary for Dean to consult the summary judgment hearing transcript for the sake of disposing of the case on the merits. On these narrow facts, we hold that the transcript was “used on the trial” within the meaning of R.S. 13:4533. To conclude otherwise would run counter to equity and the considerable discretion of the trial court.

Therefore, we find no abuse of discretion in the trial court taxing Martin with $615 for the cost of the summary judgment transcript.

| fiII: Transcript costs were adequately itemized and otherwise supported by evidence in the record.

Martin further contends that the trial court erred in taxing costs of the summary judgment hearing transcript because Dean did not furnish adequate evidence of its cost. Martin argues that neither the cost summary nor the sworn affidavit furnished by Dean in connection with his rule to tax costs sufficiently un-dergird the allocation of transcript costs to her. Taken to its logical extent, Martin’s contention calls into question all of the costs taxed against her since they too are supported only by the cost summary and sworn affidavit submitted by Dean. Martin’s contention lacks merit.

In Hardy v. Bye, this Court heard an appeal arising from a personal injury action in which the defendants challenged the costs awarded by the trial court. Id., 280 So.2d 663, 664-65 (La.App. 4 Cir.1973). We noted that proof of the challenged costs was contained in the record of the trial and further noted that “the record was offered on the trial which would have perhaps proved the items of cost questioned, but the entire record was not brought up on appeal.” Id. at 665. We remanded the issue to afford the parties a chance to support their claims with evidence, noting it would also be “necessary” to itemize charges such that it could be determined which charges were taxable and which were not. Id.

The cases on which Martin relies likewise support the notion that costs must be itemized and supported by competent evidence. Breeland v. Kenner, for example, held that an itemized bill for costs was insufficient to support an allocation of costs when it was not accompanied by a sworn affidavit attesting to [7the costs claimed. Id., 174 So. 678, 680 (La.Ct.App.1937). Globe Realty Co. v. Cotonio also demanded that a rule to tax costs must be supported by an itemized bill rather than a claim in the aggregate. Id., 4 Teiss. 359, 361 (La.Ct.App.1907).

Applying the requirements of Hardy, Breeland, and Contonio to the ease at bar, we see no evidence that the trial court erred in its allocation of costs. The trial court was supplied with a rule to tax costs supported by an itemized list of costs. Dean also supplied the court with a sworn affidavit attesting to the costs claimed, thereby supporting his claims with competent evidence. Dean’s actions, thus, satisfied the itemization and evidence requirements set forth by Hardy. See Hardy, 280 So.2d at 665. Moreover, the trial court did not allocate costs until this information was received into evidence. On these facts, we conclude that the trial court did not err in the exercise of its discretion in taxing the transcript’s costs to Martin.

Ill: Martin fails to demonstrate on the record that the trial court taxed her twice for certain costs.

Martin contends that the trial court’s allocation of costs duplicates costs that it previously ordered her to pay in connection with her failure to appear at a scheduled deposition. Specifically, Martin contends that $280 which she was ordered to pay in connection with her failure to appear at a scheduled deposition on January 19, 2012, also forms part of-the total amount taxed against Martin by the February 8, 2013 judgment. While we agree that duplicative . costs — costs taxed more than once — constitute an impermissible abuse of discretion, we find no indication of duplicative costs on this record.

| RIt is the appellant’s burden to demonstrate trial court error within the record on appeal. See Keaty v. Raspanti, 03-1080 (La.App. 4 Cir. 2/4/04), 866 So.2d 1045, 1055, writ denied, 04-0941 (La.6/18/04), 876 So.2d 806 and writ denied, 04-0947 (La.6/18/04), 876 So.2d 807. Martin has not pointed this Court to any evidence that the $280 charged to Martin in January 2012 forms a portion of the costs taxed of her in February 2013. Martin appears to merely assume that the $1,997.37 assessed to her by the clerk’s record of costs includes the $280 in contention. Additionally, our review of the record, including the clerk’s ledger, found nothing to convince us that a duplication of costs has occurred. Consequently, we find that this assignment of error lacks merit.

IV: The trial court did not abuse its discretion by refusing to reduce costs charged to Martin by the amount associated with Dean’s unsuccessful Exception of No Cause of Action.

Martin contends that because she overcame Dean’s Exception of No Cause of Action, the trial court abused its discretion in awarding Dean costs associated with the exception’s unsuccessful prosecution. Martin’s contention lacks merit.

As a general rule, the party cast by the judgment bears all costs, including its own and those of the prevailing party. See Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-0158, p. 40 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, 191, writ denied, 08-1768 (La.10/31/08), 994 So.2d 539 (citing Bowman v. New Orleans Pub. Serv., Inc., 410 So.2d 270, 271 (La.App. 4 Cir.1982)). This rule is subject to the exercise of the trial court’s discretion to deviate from it as equity may require. Id., 07-0158, p. 40, 989 So.2d at 191. Moreover, allocating costs against a | ^prevailing party is considered an abuse of discretion absent proof that the prevailing party incurred costs pointlessly or engaged in other conduct that justified the allocation. Amato v. Office of Louisiana Com’r of Sec., 94-0082, p. 12 (La.App. 4 Cir. 10/3/94), 644 So.2d 412, 419, unit denied, 94-3024 (La.2/3/95), 649 So.2d 410 (citing Flair v. Bd. of Comm’rs of Orleans Levee Bd., 411 So.2d 614, 618 (La.App. 4 Cir.1982)); Polk Chevrolet, Inc. v. Webb, 572 So.2d 1112, 1116 (La.App. 1 Cir.1990), writ denied, 575 So.2d 394 (La.1991).

Here, Dean is the prevailing party by virtue of the judgment in his favor. We find no abuse of discretion in the trial court awarding him costs in keeping with the general rule that all costs are borne by the party cast. Nothing in the record compels a different result. We, therefore, find no abuse of discretion in the trial court’s allocation of costs associated with Dean’s unsuccessful exception.

V: Martin has waived any claim that certain clerical errors should not be taxed against her.

Martin contends that the costs taxed against her bythe trial court’s judgment include amounts, attributable to errors by the clerk df court for which she should not be charged. Specifically, Martin points to two attorneys who served as counsel for St. Bernard Parish, both of whom Martin alleges to have withdrawn from the case years ago, but whom the clerk of court continued to serve with process through the end of the case. Dean contends that this claim is waived and we agree.

Revised Statute 13:4534 provides, in part, that “[n]o clerk of a court may charge for the issuance of any ... process of the court which is invalid as the result | inof an error or omission of the clerk, a deputy clerk, or other employee of the clerk in the drafting or issuance thereof.” La. R.S. 13:4534.

We note that Martin had the opportunity to dispute the legitimacy of any item to be taxed against her at the November 30, 2012 hearing on costs. Her failure to raise the legitimacy of these charges (even if not their quantum) in the trial court, waives the issue.

Waiver, notwithstanding, there is no evidence in the record to support Martin’s claim that these attorneys no longer represent St. Bernard Parish, nor to establish when each withdrew (assuming that they have withdrawn). Given the state of the appellate record, it would impossible to accord Martin the coordinate reduction in costs that she seeks even if the issue were properly preserved on appeal. We find this assignment of error to be meritless.

VI: Martin Waived Claims to the Legitimacy of Other Costs Taxed Against her by Failing to Raise Them in the Trial Court

Martin claims that the trial court improperly taxed costs against her for calls made by Dean’s counsel to the clerk of court ($5.00 per call), as well as copies, and “miscellaneous” items not specifically identified by her on appeal. Dean argues that Martin waived these claims by failing to raise them in the trial court. We agree with Dean that Martin has waived these claims.

This Court recognizes that certain court costs are not taxable because they are outside the scope of R.S. 13:4533. See, e.g., Watters, 08-0977, p. 51, 15 So.3d at 1162-63 (quoting Boleware v. City of Bogalusa, 01-1014, p. 9 (La.App. 1 Cir. 12/20/02), 837 So.2d 71, 77-78 n. 12 (internal citations omitted)). Included among |nthese are “duplication costs of various documents and medical reports not used on the trial, postage and telephone charges[.]” Id., 08-0977, p. 51, 15 So.3d at 1162-63 (quoting Boleware, 01-1014, p. 9, 837 So.2d at 77-78 n. 12) (amendment added); see also Degruise v. Houma Courier Newspaper Corp., 00-0229, p. 9 (La.App. 1 Cir. 3/28/02), 815 So.2d 1074, 1081 writ denied, 02-1202 (La.6/21/02), 819 So.2d 342 and writ denied, 02-1179 (La.6/21/02), 819 So.2d 345.

Martin concedes that she did not challenge any of the above-mentioned costs in the trial court despite the record reflecting that the legitimacy of claims costs was the express purpose of the November 30, 2012 hearing. This constitutes waiver of the issue.

We hold that Martin’s challenge to “miscellaneous” items taxed against her as court costs is waived.

CONCLUSION

For the reasons stated above, we find no error in the trial court’s exercise of its discretion. Therefore, we affirm the judgment to tax costs against Martin in the amount of $1,997.37.

AFFIRMED.

      . Lynn Dean remains a party below in his official capacity as former president of the St. Bernard Parish Government. Unless otherwise stated, all references to Dean refer to him in his individual capacity only.


author: COLEMAN, Justice, KITCHENS, Justice, KING, Justice,

text:
    Elsie SMITH, individually and as Representative of the estate of Larry D. Smith, Deceased, Amy Smith Rhodes, Ouida Smith Dawkins, Larry Clint Smith and Bonnie Smith Witty v. UNION CARBIDE CORPORATION, Montello, Inc. and Chevron Phillips Chemical Company, LP.
    No. 2010-CA-00455-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2013.
    Gregory Neill Jones, Wayne Milner, S. Robert Hammond, Jr., Hattiesburg, Eugene Coursey Tullos, Raleigh, Randy James Bruchmiller, attorneys for appellants.
    Laura Devaughn Goodson, Marcy Bryan Croft, Jackson, Ashley Elizabeth Calhoun, Richard D. Mitchell, Canton, David Cartan Loker Gibbons, Jr., Jeffrey P. Hubbard, Jackson, John Jeffrey Trotter, Holmes S. Adams, Bernard Hess Booth, IV, Ridge-land, Alex Emilio Cosculluela, Albert Christopher Derden, attorneys for appel-lees.
   COLEMAN, Justice,

for the Court:

¶ 1. The instant case arises from a jury verdict awarding Mrs. Elsie Smith and other wrongful death beneficiaries monetary damages for the wrongful death of Elsie’s husband, Larry Smith. Larry, who spent most of his life working on oil rigs, died of lung cancer, and the plaintiffs filed suit against several manufacturers of various drilling additives. She claimed that her husband’s proximity to working with these products led to his lung cancer because the drilling additives contained asbestos. After a jury verdict in favor of the plaintiffs, the defendant corporations filed a joint motion for a judgment notwithstanding the verdict (JNOV), which was granted by the trial judge. Plaintiffs appeal the grant of JNOV. We hold that the trial court erred when it granted JNOV by applying the plaintiffs’ proof to the frequency, regularity, and proximity test rather than to the elements of the plaintiffs’ negligent design claim sounding in products liability. Accordingly, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶2. Larry Smith worked on various drilling rigs from the mid-1960s until the early 1990s. At the time, it was commonplace in the industry to use various chemical drilling additives that contained asbestos. Larry indisputably was a heavy smoker, smoking roughly two to three packs a day from at least the mid-1950s through at least 1986. He was diagnosed with lung cancer in August 2002 and died three months later.

¶ 3. On March 15, 2006, Elsie Smith’s and Larry’s heirs filed a wrongful death action against Union Carbide Corporation (“UCC”); Dow Chemical Company; Mon-tello, Inc. (“Montello”); Chevron Phillips Chemical Co. (“CPChem”); Baker Hughes; and Mississippi Mud, Inc., alleging that the negligent actions of the defendant led to their products causing Larry’s death. The claims against Dow Chemical were later dismissed as a result of a joint motion filed with the court. Mississippi Mud, Inc., later became part of Baker Hughes, and Baker Hughes settled before trial. Bringing a claim for strict liability under a products liability design defect theory, the plaintiffs asserted that Larry’s exposure to asbestos while working on various oil rigs over the years caused him to develop lung cancer. The products Vis-bestos and Super Visbestos were made with asbestos- supplied by UCC and distributed by Montello. Montello also distributed Shurlift. Flosal and Visquick were the asbestos products of CPChem. Both CPChem and UCC supplied asbestos for IMCO Best, Superbest, and Shurlift.

¶ 4. At trial, four former coworkers of Larry’s testified concerning his exposure to asbestos. One of the coworkers, Howard Case', who had worked with Larry at various drill sites, could identify the appel-lees’ products as those he had used at various rigs but admitted that he could not place a specific product with a specific rig at a gjven time. Case testified that he had worked with Smith at Barnwell in 1966, Reading & Bates in 1967-68, Big Chief Drilling in 1972, Helmerich & Payne in 1973-74, and Delta Drilling in 1976. He could not specify the exact extent to which Smith had used the asbestos viseosifiers, but he did state that Smith had used Flo-sal at Barnwell and Reading & Bates; Flosal, Visbestos, and Super Visbestos at Big Chief and Helmerich & Payne; and Visquick at Delta Drilling. A second coworker, Billy Jack Graves, identified five separate products of the appellees as being present at Rig 56, where he had worked with Larry for three months: Visbestos, Shurlift, Flosal, Superbest, and Visquick. He also stated that he had seen Larry work regularly with those products on that specific rig. A third coworker, Denver Anding, testified that Larry had worked with Flosal while they had worked different shifts on the same rig during a four-month period in the late 1960s. Joe Fitz-hugh, another coworker of Larry’s, also testified in his deposition that he had worked with Larry for about four months on a rig in the mid-to-late' 1960s and had mixed Flosal, Visquick, and Visbestos with him, but Social Security records of the two men show some discrepancies in his account. He also could not identify any physical attributes of the defendants’ products that he claimed to have worked with on the rig during the relevant time period.

¶ 5. After a three-week trial in May 2009, the jury returned a verdict in favor of the plaintiffs and assessed total damages of $3,856,346.17. The jury found CPChem to be 35% at fault, Montello 10%, UCC 35%, and Larry’s smoking 20%. Before sending the case to the jury, the defendants moved for a directed verdict, which the trial court denied. CPChem previously had made motions for summary judgment and directed verdict, but the court had withheld judgment on the motions. CPChem later was joined in the motions by the other defendants. After the verdict, the defendants subsequently filed motions for JNOV and for a new trial. On January 26, 2010, the court granted the JNOV for the sole reason that, in the court’s opinion, the plaintiffs had not meet the “burden of causation” because they had failed to establish that Larry had been exposed to a specific product on a frequent and regular basis in proximity to where he worked. Plaintiffs timely appealed.

STANDARD OF REVIEW

¶ 6. A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994).

Where a motion for j.n.o.v. has been made, the trial court must consider all of the evidence — not just evidence which supports the non-movant’s case — in the light most favorable to the party opposed to the motion. The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the mov-ant that reasonable [jurors] could not have arrived at a contrary verdict, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fairminded [jurors] in the exercise of impartial judgment might reach different conclusions, the motion should be denied and the jury’s verdict allowed to stand. See, e.g., General Tire and Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).

3M Co. v. Johnson, 895 So.2d 151, 160-61 (¶ 31) (Miss.2005) (quoting Jesco, Inc. v. Whitehead, 451 So.2d 706, 713-14 (Miss.1984)). The Court reviews a trial court’s grant of a JNOV de novo. Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 64 (¶ 24) (Miss.2004).

DISCUSSION

¶ 7. The issue presented by the plaintiffs is whether the circuit court erred by granting the appellees’ motion for JNOV based on the court’s determination that the plaintiffs had failed to pass the frequency, regularity, and proximity test. To answer, we must determine whether the trial court erred in analyzing the plaintiffs’ claim under the de minimis “frequency, regularity, and proximity” test in determining whether or not to grant the motion for JNOV.

I. Whether the trial court erred in analyzing the plaintiffs’ claim under the de minimis “frequency, regularity, and proximity” test in determining whether or not to grant the motion for JNOY.

¶ 8. The defendant companies argue that the circuit court correctly granted JNOV because the plaintiffs failed to satisfy the “frequency, regularity, and proximity” test first established in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), and adopted by the Court in Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss.2005). In fact, they relied upon the “frequency, regularity, and proximity” test in their motion for JNOV, and indeed we have written, “[W]e again hold that in asbestos litigation cases, the frequency, regularity, and proximity test is the proper standard in determining exposure and proximate cause” in the context of a motion for summary judgment or directed verdict. Monsanto Co. v. Hall, 912 So.2d 134, 137 (¶ 8) (Miss.2005). As stated in Gorman-Rupp Co.,

[t]he requirements [of the “frequency, regularity, and proximity” test] ... are:
“(1) [Plaintiff] was exposed to a particular asbestos-containing product made by the [Defendant],
(2) with sufficient frequency and regularity,
(3) in proximity to where [Plaintiff] actually worked,
(4) such that it is probable that the exposure to [Defendant’s] products caused [Plaintiffs] injuries.”

Gorman-Rupp Co., 908 So.2d at 756 (¶ 21) (quoting Chavers v. Gen. Motors Corp., 349 Ark. 550, 562, 79 S.W.3d 361, 369 (2002)). The Court expressly added product identification to the test in Monsanto Co., 912 So.2d at 137 (¶ 8).

¶ 9. The case sub judice evidences confusion regarding the applicability of the “frequency, regularity, and proximity” test.

In Lovelace v. Sherwin-Williams, 681 F.2d 230 (4th Cir.1982), we discussed the quantum of circumstantial evidence necessary to allow a finding of causal connection and held that permissible inferences must be within the range of reasonable probability. See 681 F.2d at 241. The “frequency, regularity, and proximity test” used by the district court is an application of this principle in an asbestosis setting.

Lohrmann, 782 F.2d at 1163. “The Lohrmann court further noted that such a rule was in effect a de minimis rule in that a plaintiff is required to prove more than a casual or minimal contact with the product.” Gorman-Rupp Co., 908 So.2d at 756 (¶ 22). In Gorman-Rupp Co., the Court was asked to apply the “frequency, regularity, and proximity” test solely “in the context of summary judgment for asbestos cases.” Gorman-Rupp Co., 908 So.2d at 754-55 (¶ 19). Further, in Chavers, on which the Court heavily relied in adopting the “frequency, regularity, and proximity” test, the Arkansas Supreme Court adopted the test “to determine the admissible evidence that must be demonstrated by the plaintiff in order to survive a motion for summary judgment. ...” Gorman-Rupp Co., 908 So.2d at 756 (¶ 21) (emphasis added).

¶ 10. We are unable to identify any Mississippi case, other than Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss.2012), in which the “frequency, regularity, and proximity” test is applied outside the context of a motion for summary judgment. See Gorman-Rupp Co., 908 So.2d 749; Monsanto Co., 912 So.2d 134. Federal courts applying Mississippi law also have applied the “frequency, regularity, and proximity” test only in the context of summary judgment. See Dufour v. Agco Corp., 2009 WL 700769 (S.D.Miss. Mar.13, 2009); Dalton v. 3M Co., 2011 WL 5881010, *1 (E.D.Pa. Aug.2, 2011) (“The plaintiff must prove product identification, exposure, and proximate cause with regularity, frequency, and proximity in order to survive summary judgment.”). In fact, of all the jurisdictions and federal circuit courts which have adopted the test, we can find only one example of the test being used as the basis for JNOV. Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992).

¶ 11. In Phillips 66 Co., the Court applied, in dicta, the “frequency, regularity, and proximity” test in the context of an appeal after the jury had returned a verdict for the plaintiff. Phillips 66 Co., 94 So.3d at 1062 (¶ 29). The Court remanded that case for a new trial as a result of evidentiary issues. Id. at 1070 (¶ 58). In no other Mississippi case has the “frequency, regularity, and proximity” test been applied as anything other than a de mini-mus test, applied to decide whether a plaintiffs claim would be allowed to proceed past summary judgment or directed verdict, and we today hold that such is the proper limit of its utility.

¶ 12. In 1993, the Mississippi Legislature codified the Mississippi Products Liability Act, setting the elements of products liability claims. Williams v. Bennett, 921 So.2d 1269, 1273 (¶ 13) (Miss.2006). With the Legislature having created a statutory scheme for products liability, it is not for the Court to add or subtract from those delineated elements. “The duty of this Court is to interpret the statutes as written. It is not the duty of this Court to add language where we see fit. ‘[Ojur primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature.’” Stockstill v. State, 854 So.2d 1017, 1022-23 (¶ 13) (Miss.2003) (quoting Anderson v. Lambert, 494 So.2d 370, 372 (Miss.1986)). Since the enactment of the Products Liability Act, “products liability claims have been specifically governed by statute, and a claimant, in presenting his case, must pay close attention to the elements of the cause of action and the liability limitations enumerated in the statute.” Williams, 921 So.2d at 1273 (¶ 13). It is the trial court’s job — as it is ours — when considering a motion for JNOV to apply the evidence to the elements of a plaintiffs claim. InTown Lessee Assocs., LLC v. Howard, 67 So.3d 711, 718 (¶22) (Miss.2011) (“In essence, judgments as a matter of law present both the trial court and the appellate court with the same question — whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.”); Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 63 (¶ 22) (Miss.2004).

¶ 13. We clarify today that the “frequency, regularity, and proximity” test is a de minimis rule employed to determine whether a plaintiff has successfully made a prima facie case solely in the context of summary judgment or directed verdict. Justice Kitchens, in his dissent, criticizes us for doing so, but the weight of the authority detailed above, which neither dissent addresses, compels the result we reach. As Justice Kitchens writes, the test is a legal one. However, once consideration of the facts of the case are in the hands of the jury, our Legislature has mandated the elements for the jury to consider. At the jury consideration stage, the “frequency, regularity, and proximity” test falls away, and a plaintiff must demonstrate the elements of a design defect product liability claim as delineated in Mississippi Code Section 11-1-63, including proximate causation. See Miss.Code Ann. § 11-1-63 (Rev.2002).

¶ 14. Because the jury must consider the elements of the claim as established by the Legislature, the court must match the evidence to those elements rather than to the judicially created frequency, regularity, and proximity test when considering a JNOV motion. The “frequency, regularity, and proximity” test is a legal determination, not to be determined by the fact-finder. Today’s clarification does not conflict with the holding of Phillips 66 Co., as our discussion of the test therein appeared only in dicta.

¶ 15. In the context of the motion for JNOV now before us, the trial court erred as a matter of law when it applied the “frequency, regularity, and proximity” test outside a summary judgment or directed verdict situation Instead, the trial court should have matched the plaintiffs’ proof against the statutory elements of a design defect products liability claim, just as would be required in any nonasbestos negligent design litigation. Nothing in Section 11-1-63 indicates that the Legislature intended to create a separate class of litigation for asbestos eases. Because the trial court erred in applying the “frequency, regularity, and proximity” test to the plaintiffs’ claim instead of the statutory elements of plaintiffs’ negligent design claim, we reverse the trial court’s grant of JNOV and remand for further proceedings consistent with our opinion.

CONCLUSION

¶ 16. The trial court erred when it applied the “frequency, regularity, and proximity” test to the plaintiffs’ claim instead of the well-established proximate cause analysis as required under the Mississippi Products Liability Act. Miss.Code Ann. § 11-1-63 (Rev.2002). Accordingly, the trial court erred in its grant of judgment notwithstanding the verdict. Thus, the judgment of the Circuit Court of Smith County is reversed and the case is remanded for further proceedings consistent with the instant opinion, including reconsideration of the grant of JNOV in accordance with the statutorily established elements of the plaintiffs’ negligent design claim.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., AND DICKINSON, P.J., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.; LAMAR, J., JOINS IN PART. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting.

¶ 18. I fully join Justice King’s dissent. He correctly identifies the issue on appeal: whether the plaintiffs presented sufficient evidence of causation. Despite criticism that the King opinion “does not apply any legal standard to the evidence,” the dissent clearly addresses the statute’s requirement that “[t]he defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.” Miss.Code Ann. § 11-1-63 (Rev.2002). Moreover, there is no dispute regarding the well-established legal standards governing a motion for judgment notwithstanding the verdict. As Justice Coleman’s opinion explains, the motion tests the sufficiency of the evidence, which is to say, whether the movant is entitled to a verdict as a matter of law, see, e.g., 3M Co. v. Johnson, 895 So.2d 151, 160-61 (Miss.2005) (citing Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994)), and any judicial determination that “the necessity of a trier of fact has been obviated,” necessarily requires the court to examine the evidence presented. Hyundai Motor America v. Applewhite, 53 So.3d 749, 752-53 (Miss.2011) (citing U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 964 (Miss.2008)). Applying these standards, the dissent provides a thorough recitation of the evidence presented at trial, and correctly determines that the issue of proximate cause, under Mississippi Code Section 11-1-63, was a question for the jury.

¶ 19. Furthermore, I respectfully disagree with the curious conclusion that a trial court may not consider the “frequency, regularity, and proximity” test once a verdict has been entered. This test is a legal standard relevant to the element of causation. I find no authority or sound basis for an argument that the legal standards applicable to an essential element of the plaintiffs claim would change depending on the stage of the proceedings. Indeed, this Court applies the same de novo standard of review to a denial of summary judgment, directed verdict, and motion for a judgment notwithstanding the verdict, for each motion contends that the movant is entitled to a judgment as a matter of law. Denbury Onshore, LLC v. Precision Welding, Inc., 98 So.3d 449, 452 (Miss.2012) (citing Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (Miss.2001)). For purposes of this discussion, the only difference is that these motions are made at different stages of the proceedings. See Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 415 (Miss.1988) (“The motion for summary judgment is the functional equivalent of the motion for directed verdict made at the close of all the evidence, the difference being that the motion for summary judgment occurs at an earlier stage.”) (citing Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986); Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983)); C & C Trucking Co. v. Smith, 612 So.2d 1092, 1098 (Miss.1992) (“It is only when a directed verdict at the close of the plaintiffs case[,] and again at the close of the defendant’s case, would have been proper that a judgment notwithstanding the verdict is proper.”).

¶ 20. As our opinion in C & C Trucking, 612 So.2d at 1098, clearly articulated, a trial judge faced with a motion for judgment notwithstanding the verdict applies the same legal standards as if he or she were considering a motion for a directed verdict. Yet, Justice Coleman’s opinion concludes that the “frequency, regularity, and proximity” test cannot be considered once a verdict has been entered, citing two opinions from this Court, an opinion from the Arkansas Supreme Court, two opinions from the United States Court of Appeals for the Fourth Circuit, and two orders from federal district courts. But none of these cases held that this legal standard is applied only in the context of a motion for summary judgment or motion for a directed verdict. Instead, the courts’ application of the standard to motions for summary judgment was merely a consequence of the procedural posture of a particular case.

¶ 21. Justice Coleman’s opinion would prohibit trial judges’ reconsideration of prior rulings and would unfairly prejudice defendants. In the present case, the trial court withheld ruling on the defendants’ motion for summary judgment, and then denied their motion for a directed verdict. Thus, as a consequence, the plaintiffs may be relieved from their burden of demonstrating “frequency, regularity, and proximity,” even though the defendants had placed the issue before the trial judge.

¶ 22. Finally, the opinion mischaraeter-izes this Court’s discussion of the “frequency, regularity, and proximity” test in Phillips 66 Co. v. Lofton, 94 So.3d 1051 (Miss.2012), as dicta. In that case, the judgment in favor of the plaintiff was reversed, and the case was remanded for a new trial based on evidentiary errors; yet, those errors did not dispose of the appellant’s argument that the plaintiff had failed to prove causation. In general, reversible evidentiary errors will not preclude a second trial. In contrast, the plaintiffs failure to meet his or her burden of proof entitles the defendant to a judgment as a matter of law, and the plaintiff does not get a second chance to prove his or her case. Had the defendant prevailed on its claim that the proof failed to meet the “frequency, regularity, and proximity” standard, the Court would have reversed and rendered judgment for the defendant. See Applewhite, 53 So.3d at 753 (noting that a new trial is appropriate when there are errors “within the trial mechanism itself,” whereas a verdict unsupported by the evidence warrants a judgment for the opposing party). Therefore, because this issue would have changed the disposition, the issue was essential to this Court’s decision, and the decision in Phillips 66 is binding authority.

CHANDLER AND KING, JJ., JOIN THIS OPINION. LAMAR, J., JOINS THIS OPINION IN PART.

KING, Justice,

dissenting.

¶ 23. I dissent from the plurality opinion herein.

¶ 24. In the trial court, this products liability case resulted in a jury verdict in favor of the plaintiffs. The trial court then granted the defendants’ motion for judgment notwithstanding the verdict (JNOV), holding that the plaintiffs’ proof failed to meet the frequency, regularity, and proximity test. The plaintiffs have appealed the grant of that JNOV to this Court.

¶25. The plurality holds that the frequency, regularity, and proximity test is restricted to a determination of whether to grant or deny summary judgment. PI. Op. at 8-14. The plurality decides that the trial court applied an incorrect standard to grant the defendants’ motion for JNOV, thus it should reverse and remand this matter “for further proceedings consistent with our opinion.” PI. Op. at 15.

¶ 26. The plaintiffs raise only one issue in this appeal, which is that: “The trial court erred by granting Appellees’ motion for judgment notwithstanding the verdict because more than sufficient evidence supported the jury’s verdict.” There is no cross-appeal by the defendants and, thus, no additional issue has been placed before this Court by the defendants. Therefore, the sole issue before this Court is whether the plaintiffs submitted to the jury sufficient evidence upon which reasonable persons might return a verdict for the plaintiffs. See Architex Ass’n, Inc. v. Scottsdale Ins. Co., 27 So.3d 1148, 1154 (¶ 13) n. 11 (Miss.2010) (finding issue not properly before Court because appel-lee failed to file a cross-appeal). The Court repeatedly has held that it will not address issues not raised on appeal. See Hood ex rel. State Tobacco Litigation, 958 So.2d 790, 815 (¶86) n. 17 (Miss.2007). The plurality completely ignores the issue placed before it by the plaintiffs and the Court’s admonition that it will not address issues not raised on appeal.

¶27. The question presented to this Court is whether there was sufficient evidence to support the jury’s verdict. The plurality would reverse this matter for consideration under Mississippi Code Section 11-1-63 (Rev.2002), the Products Liability Statute. The plurality, however, fails to indicate which element, if any, of the products liability statute was not placed before the jury. A review of the record indicates that sufficient evidence was placed before the jury from which it could be found that the plaintiffs established a products liability claim pursuant to Section 11-1-63. Because I believe that there was sufficient evidence from which the jury could return a verdict in favor of the plaintiffs, I dissent and would reverse the grant of JNOV and reinstate the jury’s verdict as rendered for the plaintiffs.

¶ 28. Howard Case testified that he worked in the oil drilling industry with Larry Smith off and on from 1966 through 1990. During that time, Larry mixed drilling mud, which contained asbestos. This was a very dusty process, which placed a significant amount of asbestos dust in the air, and no respirators were used. Case worked with Larry at Barnwell, where Larry was exposed to Flosal, an asbestos product. He worked with Larry at Reading and Bates, where Larry also was exposed to Flosal. He worked with Larry at Big Chief, where Larry was exposed to Super Visbestos, Visbestos, and Flosal, all of which were asbestos products. They worked at Helmerich & Payne in 1973 and 1974, where Larry was exposed to Flosal, SuperVisbestos, and Visbestos, all of which were asbestos products. They worked for Delta Drilling, from about 1974 to 1988, where Larry was exposed to Visquick, an asbestos product. Additionally, Larry was exposed to Shurlift, an asbestos product, but he did not recall at which company.

¶ 29. Jack Graves testified that he had worked with Larry for three months, on Delta Rig 56, where Larry was exposed to Visbestos, Shurlift, Super Best, Flosal, and Visquick, all asbestos products. The workers were not provided with respirators or protective clothing. They worked seven days a week and were on call twenty-four hours a day.

¶ 30. Denver Anding worked with Larry in the late 1960s at Marlin Drilling Company for a period of four months. Larry was exposed to Flosal, an asbestos product, and worked without a respirator or protective clothing. Nor were the workers given any warning regarding the danger of asbestos.

¶ 31. Dr. Edwin Holstein, who practiced occupational medicine, testified that Larry suffered from lung cancer due primarily to exposure to asbestos. Larry’s exposure to asbestos concentration was considered substantial. Dr. Holstein opined that the four months Larry worked at Marlin would have been sufficient exposure to asbestos to cause Larry’s lung cancer.

¶ 32. Dr. Murray Finklestein, an epidemiologist, testified that Larry’s lung cancer was caused by exposure to asbestos and smoking. Dr. Colella, a diagnostic radiologist, testified that Larry was exposed to asbestos working in the 1960s, 1970s, and 1980s and that his lungs showed asbestos-related disease. Dr. Kenneth Cohen, an industrial safety engineer and certified industrial hygienist, testified that Larry had significant exposure to asbestos under his working conditions. Dr. Jerrold Abraham, a pathologist, testified that there was no safe type of asbestos and that Larry’s lung cancer was caused by exposure to asbestos.

¶33. Ken Campbell, who served as president of Montello from its beginning in 1957 to the early 1990s, testified that Mon-tello had used asbestos from Union Carbide in its products of Visbestos and Super Visbestos. The process used was that Montello took the orders, Union Carbide did the manufacturing, and, in most cases, it shipped directly to the customer. He stated that Shurlift was Visbestos-pack-aged under EMCO’s private label.

¶ 34. J.C. Floyd, who worked for Phillips 66 starting in 1966 until retirement in 1992, testified that nonasbestos products were available as early as 1956, and that his company was aware at least by 1969 that asbestos was a carcinogen. He testified that, in August 1973, Phillips 66 circulated a memo to Drilling Specialty employees which indicated that any person who handles loose Flosal fiber for a cumulative total of seven hours per year was an asbestos worker and was entitled to an annual company physical. As a result, Floyd took a medical exam for asbestos exposure, but he did not tell persons who worked daily with asbestos in the oil field about the availability of this medical exam.

¶ 35. Floyd testified that Drilling Specialties put Flosal on the market in 1964, using asbestos from Johns Mansville. He testified that Flosal was packaged under a private label for EMCO, that it was placed in an IMCO bag with the IMCO label. Super Best was a Montello/Union Carbide product. Shurlift was a Phillips 66/Drill-ing Specialties product packed for IMCO.

¶ 36. Floyd testified that after 1965, Drilling Specialties and Montello were the only suppliers of asbestos for drilling mud. He testified that Drilling Specialties also packaged Flosal under a private label of Magcober Visquick, for Magcobar/Dresser Industries.

¶ 37. Phillips 66 admitted that, from 1964 through 1985, nonasbestos products were available for use in oil drilling. It admitted that Flosal was intended to perform its function without causing asbestos-related disease. It admitted that, between 1963 and 1967, Flosal was distributed without a warning label. It admitted that the asbestos used in Flosal came from Johns Manville mines from 1964 through 1984.

¶ 38. In response to interrogatories, Phillips stated that IMCO Best and Shur-lift were Flosal, rebranded for International Minerals Company, and Yisquick was Flosal, rebranded for Magcober.

¶ 39. Montello admitted that, prior to 1968, its products contained no warning labels. It admitted that after 1969, the asbestos in all of its products was from Union Carbide. It admitted that all of its asbestos products were intended to perform their function without causing asbestos-related diseases.

¶ 40. Union Carbide admitted in the asbestos toxicology report, which it prepared in 1964, that the potential association between asbestos exposure and certain diseases had been known for years.

¶ 41. Based on the foregoing, sufficient evidence was placed before the jury to establish a products liability claim under Section 11-1-63. The evidence presented to the jury supported a finding that:

• The defendants were manufacturers and sellers of asbestos products sold for use in the oil-drilling industry.
• The asbestos products manufactured and sold by the defendants were intended to be used in the oil-drilling industry without causing asbestos-related diseases.
• The defendants were aware that there was a link between exposure to the asbestos products they manufactured and sold for use in the oil-drilling inL dustry and several respiratory diseases, including asbestosis and lung cancer.
• While aware of the link between their asbestos products and respiratory diseases, the defendants sold these products for several years without warning of the health hazards.
• Larry Smith was exposed to asbestos products manufactured and sold by the defendants for use in the oil-drilling industry, which were used in the manner intended by the defendants.
• Larry Smith died from lung cancer, which was caused by exposure to asbestos products manufactured and sold by the defendants for use in the oil-drilling industry.
• There was no safe asbestos, and the products manufactured and sold by the defendants for use in the oil-drilling industry were inherently unsafe.
• Alternative, effective, safe, and asbestos-free drilling products were available well before the defendants manufactured and sold their asbestos drilling products for use in the oil-drilling industry.

¶ 42. Based on the testimony, sufficient evidence was presented at trial for a reasonable juror to conclude that the defendants’ products caused Larry’s injury. Accordingly, the jury returned a verdict for the plaintiffs. Therefore, I would reverse the grant of a JNOV, and reinstate the jury’s verdict in favor of the plaintiffs.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . In his dissent, Justice Kitchens cites C & C Trucking Co. v. Smith, 612 So.2d 1092, 1098 (Miss.1992), for the proposition that a judge applies the same legal standards when considering a motion for JNOV as when faced with a motion for directed verdict. However, nothing in C & C Tmcking contradicts the proposition that a court considering either applies the evidence to the elements of the claim. Accordingly, it does not contradict the result reached here, that a court which applies the evidence to a list of factors not elements of the claim, errs.

      . Although not raised by the parties, we take the opportunity to point out a logical consequence of today's holding, that trial courts err in instructing juries as to the "frequency, regularity, and proximity” test, which is a legal determination not for the finder of fact.

      . Justice Kang's dissent finds enough evidence to support the verdict under the elements found in the negligent design products liability statute. However, the trial court did not analyze the motion for JNOV pursuant to the elements of the statute, and the parties did not argue that the evidence did or did not meet the elements of the statute in their briefs.

      . "In asbestos litigation in Mississippi, the proper test to be used is the frequency, regularity, and proximity standard to show product identification of the defendants' actual products, exposure of the plaintiffs to those products, and proximate causation as to the injuries suffered by the plaintiffs.” Monsanto Co. v. Hall, 912 So.2d 134, 137-38 (Miss.2005).

      . Monsanto, 912 So.2d at 137; Gorman-Rupp Co. v. Hall, 908 So.2d 749 (Miss.2005); Chavers v. Gen. Motors Corp., 349 Ark. 550, 79 S.W.3d 361, 369 (2002) Lovelace v. Sherwin-Williams, 681 F.2d 230 (4th Cir.1982); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986); Dufour v. Agco Corp., 2009 WL 700769 (S.D.Miss. Mar. 13, 2009); Dalton v. 3M Co., 2011 WL 5881010, *1 (E.D.Pa. Aug. 2, 2011).

      . The court reporter was inconsistent in spelling the company’s name, thus the two spellings: EMCO or IMCO.