text:
    Martin LEVERT v. UNIVERSITY OF ILLINOIS AT URBANA/CHAMPAIGN Through the BOARD OF TRUSTEES. Julie Lewis, Sidney Evans, Robert Roussel, Jr., David Thomas, Marshaun Bacon and Timothy Burke, Each Individually and on Behalf of All Others Similarly Situated v. Board of Trustees of the University of Illinois
    No. 2002 CA 2679, 2002 CA 2680.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Matthew Lofaso, Baton Rouge, Patrick Pendley, Chris Coffin, Plaquemine, Counsel for Plaintiff/Appellant Martin Levert, et al. Rusty Landeche, et al.
    J. Wendell Clark, Amy Lambert, Baton Rouge, Counsel for Defendant/Appellee Board of Trustees of the University of Illinois.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   KUHN, J.

Pursuant to these consolidated appeals, we review a judgment in which the trial court determined that it lacked subject matter jurisdiction to resolve a dispute. The trial court also implicitly granted the defendant’s motion to dismiss by transferring plaintiffs’ suit to our sister state of Illinois. In one of the appeals, we conclude that the appeal was taken from an invalid judgment and that we have no jurisdiction to review it. In the other appeal, we address whether the trial court abused its discretion in declining to exercise jurisdiction over a sister state’s university board based on principles of interstate comity. We find that Illinois is a cooperative jurisdiction that has previously honored a sister state’s reservation of sovereign immunity by declining to exercise jurisdiction and would likely do the same if a Louisiana university board defended a suit on the basis of sovereign immunity. We likewise find that declining jurisdiction in this instance does not contravene the public or judicial policies of our state. Thus, we conclude the trial court did not abuse its discretion in declining to exercise jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from two consolidated suits brought by plaintiffs-appellants concerning tickets that they ordered through the University of Illinois Athletic Ticket Office (“the Illinois Ticket Office”) for the January 1, 2002 Nokia Sugar Bowl Game. The Bowl Game featured Louisiana State University (“LSU”) versus the University of Illinois and was played in New Orleans, Louisiana.

Prior to the game, plaintiffs, most of who resided in Louisiana, realized that they might improve their chances of securing tickets for the Sugar Bowl game by attempting to purchase some of the 15,000 tickets that had been allotted to the | ¡¡University of Illinois for sale. The Illinois Ticket Office began selling these tickets during December 2001. Between approximately December 4th and December 10th, plaintiffs each ordered a number of tickets through the Illinois Ticket Office via its online website or via the telephone. With respect to the online transactions, plaintiffs alleged that the Illinois Ticket Office charged each respective purchaser’s credit or debit card and then confirmed the ticket purchase by sending a confirmation to each purchaser’s e-mail address. In the case of at least one telephone transaction, the plaintiffs-appellants assert that a ticket office representative assured the respective purchaser that the tickets would be mailed after taking his name, address, and credit card information. Several days later, the Illinois Ticket Office informed the individual plaintiffs either through an e-mail transmission or by telephone that because there was a high demand for Sugar Bowl tickets from donors of the Fighting Illini Scholarship Fund and public and student football season ticket holders, plaintiffs’ requests for Sugar Bowl tickets would not be accommodated. The Illinois Ticket Office reversed the respective credit or debit card transactions.

On December 19, 2001, plaintiffs filed two suits that proposed the formation of a class of plaintiffs and set forth breach of contract claims against defendant- | ¿appellee, The Board of Trustees of the University of Illinois (“the Board”). Martin Levert, Karen Leboef, Ann Rasmussen, and Kamron Lachney were the named plaintiffs in the suit filed first (hereinafter referred to as the “Levert” suit). Rusty Landeche, R. Bruce Macmurdo, Ricardo Torres, Jr., Henry Lazzaro, Charles S. McCowan, III, and Ellis Sehwartzenburg were the named plaintiffs in the second suit (hereinafter referred to as the “Lan-deche” suit). In each suit, the named plaintiffs sought mandatory injunctive relief ordering the Board to produce the Sugar Bowl tickets that each plaintiff had ordered. Alternatively, the plaintiffs prayed for compensatory damages resulting from the Board’s alleged breach of contract.

When the suits were filed, the trial court ordered their consolidation. Thereafter, plaintiffs filed a motion to certify the suit for class action treatment, defining the proposed class as “[a]ll individuals or entities who purchased 2002 Sugar Bowl football tickets through [the Ticket Office], and have not received or have been advised by [the Ticket Office] that they will not receive their 2002 Sugar Bowl tickets.”

During a December 27, 2001 hearing, the trial court denied plaintiffs’ motion for certification but granted mandatory in-junctive relief in favor of the named | plaintiffs by awarding a specific number of tickets to each of them. The Board was directed to provide the named plaintiffs with a designated number of Sugar Bowl football tickets for purchase within 24 hours. Although a written judgment was not signed until after the game was held, there is no dispute that the named plaintiffs secured the tickets addressed in the ruling.

On March 8, 2002, plaintiffs in each suit filed an amending and supplemental petition. The Landeche suit was amended to substitute 6 new plaintiffs in lieu of the plaintiffs named originally. The Levert suit was amended to add 5 plaintiffs asserting breach of contract claims. Each of these plaintiffs set forth breach of contract claims based on allegations that tickets they had ordered from the Illinois Ticket Office were never received.

Thereafter, the Board filed a pleading pertaining to both suits that was entitled, “Defendant’s Exception of Lack Of Subject Matter Jurisdiction, or | (Alternative Motion to Dismiss, on Grounds of Sovereign Immunity and Comity .... ” The arguments supporting both the exception and the motion to dismiss were based on grounds of sovereign immunity and comity. The Board asserted that based on the Illinois Court of Claims Act, both the Board and the University of Illinois are arms of the State of Illinois for purposes of sovereign immunity and can only be sued in the Illinois Court of Claims. The Board urged that under principles of comity, the trial court should defer to Illinois’s law concerning sovereign immunity and exclusive jurisdiction and dismiss plaintiffs’ claims. Following a hearing, the trial court orally reasoned that based on principles of comity and sovereign immunity, the remaining issues of the lawsuits should be adjudicated in Illinois’s Court of Claims. By judgment dated September 18, 2002, the trial court granted the Board’s exception as to both suits and further ordered, “Plaintiffs’ suit (sic) shall be transferred to the Illinois Court of Claims for further proceedings.” Plaintiffs in each suit have appealed this judgment, asserting that the trial court abused its discretion in: 1) finding that “principles of comity and sovereign immunity divested the Courts in Louisiana from subject matter jurisdiction,” and 2) “ ‘transferring’ this case to the Illinois Court of Claims for further proceedings.”

II. ANALYSIS

Because we do not reach the same conclusion in each suit regarding the propriety of the trial court’s judgment, we review the September 18, 2002 judgment with respect to each suit.

|7A. The Landeche Suit

(Docket Number 2002 CA 2680)

With respect to the Landeche suit, we conclude that the trial court had signed a final judgment prior to the time that it ruled on the exception and alternative motion to dismiss. Because the trial court had no jurisdiction to rule on either the exception or the motion, the September 18, 2002 judgment is null and we have no jurisdiction to review it.

A judgment that determines all of the relief prayed for is a final judgment. La. C.C.P. arts. 1841 and 1915. A valid and final judgment is conclusive between the same parties, except on appeal or other direct review. La. R.S. 13:4231; Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079.

In the Landeche case, all of the issues presented to the court were resolved by the January 9, 2002 order. The original plaintiffs in the Landeche suit prayed for an order directing defendants to provide them with tickets to the Sugar Bowl game. Alternatively, they prayed for damages that resulted from the Board’s alleged breach of contract. Lan-deche prayed for and was awarded 10 tickets; Macmurdo prayed for and was awarded 3 tickets; Torres prayed for and was awarded 2 tickets; Lazzaro prayed for and was awarded 4 tickets; McCowan prayed for and was awarded 8 tickets; Schwart-zenburg prayed for and was awarded 4 tickets. Because plaintiffs’ prayer for in-junctive relief was fully answered, there was no reason for the trial court to reach the alternative breach of contract claim.

Although the original and supplementing petitions referred to a purported class action, a motion to certify the class had been denied by the trial court on December 27, 2001. Thus, when the January 9, 2002 order granting the injunctive | ¡¡relief was signed, no class had been certified and no motion for class certification was pending. Once the January 9, 2002 order was signed, there were no outstanding claims before the court. And the January 9, 2002 order, which awarded plaintiffs full relief as prayed for in their petition, was a final judgment.

Thereafter, however, plaintiffs filed a second amending and supplemental petition that substituted new plaintiffs who had ordered tickets from the Illinois Ticket Office but had not successfully obtained them. Those plaintiffs urged breach of contract claims. But because a final judgment had already been rendered and signed, the filing of the supplemental and amending petition had no effect. Generally, once a final judgment has been rendered, there can be no amended petition because there is no longer a petition before the court to amend. La. Riverboat Gaming Comm’n v. La. State Police Riverboat Gaming Enforcement Div., 97-0167, p. 3 (La.App. 1st Cir.6/20/97), 696 So.2d 645, 647, writ denied, 97-1932 (La.11/7/97), 703 So.2d 1269; Templet v. Johns, 417 So.2d 433, 435 (La.App. 1st Cir.1982), writ denied, 420 So.2d 981 (La.1982), and cases cited therein. A plaintiff can only amend a petition that is pending at the time the amendment is filed. Id. at 435.

Likewise, after the January 9, 2002 order was signed, the court had no jurisdictional authority to rule on either the exception or the motion to dismiss filed by the Board. See Diamond B Const. Co., Inc. v. Dep’t of Transp. and Development, 02-0573, p. 9 (La.App. 1st Cir.2/14/03), 845 So.2d 429, 435. Thus, the September 18, 2002 judgment, which sustained the exception of lack of subject matter jurisdiction, was invalid with respect to the Landeche suit. The Landeche plaintiffs have appealed this invalid judgment. Because a motion for appeal from an | ¡¡invalid judgment is considered untimely, and this court lacks jurisdiction to hear an untimely appeal, we recognize that with respect to- the Lan-deche suit, we have no jurisdiction to review the trial court’s judgment. Avants v. Kennedy, 02-0830, p. 9 (La.App. 1st Cir.12/20/02), 837 So.2d 647, 654, writ denied, 03-0203 (La.4/4/03), 840 So.2d 1215. Accordingly, we dismiss the appeal with respect to the Landeche suit. La. C.C.P. art. 2162.

B. The Levert Suit

(Docket Number 2002 CA 2679)

With respect to the Levert suit, the plaintiffs also requested injunctive relief in the form of tickets and, alternatively, prayed for damages resulting from breach of contract. The January 9, 2002 order directed the Board to provide tickets to each of the plaintiffs that had been named in the original and first supplemental and amending petitions. However, although one of the plaintiffs, Ann Rasmussen, prayed for 8 tickets, the January 9, 2002 order directed the Board to deliver only 6 tickets to her. Although the record does not explain why she did not receive the full number of tickets that she sought, the result is that her alternative claim for breach of contract remained viable after the January 9, 2002 order. Thus, the trial court had authority to allow amendment of the pleadings and to rule on the Board’s exception and motion. Accordingly, we review the propriety of the September 18, 2002 judgment with respect to the Levert suit.

The trial court’s judgment granted the Board’s exception raising the objection of lack of subject matter jurisdiction. By ordering the suit’s transfer to the State of Illinois, the trial court also implicitly granted the Board’s motion to dismiss. In its oral reasons for judgment, the trial court recognized principles of comity and Imsovereign immunity and determined that the remaining issues of the lawsuit should be adjudicated in Illinois’s Court of Claims. But the court did not expressly distinguish the concepts of lack of subject matter jurisdiction and declining to exercise jurisdiction based on principles of comity. We believe it is important to do so.

i. Subject Matter Jurisdiction

Louisiana Constitution, Article 5, Section 16(A)(1), addressing the original jurisdiction of our state’s district courts, provides in pertinent part, “Except as otherwise authorized by this constitution or except as ... provided by law ... a district court shall have original jurisdiction of all civil ... matters.” Louisiana Code of Civil Procedure article 1 provides, “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. La. C.C.P. art. 3.

The claim that remained before the trial court when it ruled on the exception was a breach of contract claim. A cause of action alleging breach of contract, regardless of the contract’s subject matter, is a civil matter subject to the jurisdiction of the trial court. A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 12 (La.6/29/01), 791 So.2d 1266, 1275, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001). As such, the trial court incorrectly determined that it lacked subject matter jurisdiction. Therefore, we vacate that portion of the trial court’s judgment that granted the exception.

The trial court also ordered the transfer of the suit to the Illinois Court of Claims. Therefore, we recognize that the real dispute presented herein is whether the trial court abused its discretion in implicitly granting the Board’s motion to dismiss by deciding that jurisdiction should be declined based on principles of comity. Accordingly, we address that issue.

ii. Comity

Comity is a principle under which the courts of one state give effect to the laws of another state or extend immunity to a sister sovereign not as a rule of law, but rather out of deference or respect. Lee v. Miller County, Arkansas, 800 F.2d 1372, 1375 (5th Cir.1986). Courts extend immunity as a matter of comity to foster cooperation, promote harmony, and build goodwill. Id. Because the doctrine is a discretionary one, the decision to extend comity rests in the sound discretion of the trial court. Id. at 1376; Mianecki v. Second Jud. Dist. Ct., 99 Nev. 93, 98, 658 P.2d 422, 425 (1983), cert. dismissed, 464 U.S. 806, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Thus, we conclude that a court’s determination to extend immunity to a sister sovereign should not be overturned in the absence of an abuse of the trial court’s discretion.

liyWith a few exceptions, the State of Illinois’s legislature has established sovereign immunity by providing that “the State of Illinois shall not be made a defendant or party in any court.” IL ST CH 745 § 5/1. One exception is that the Court of Claims has “exclusive jurisdiction to hear and determine ... claims against the State that are founded upon any contract entered into with the State of Illinois.” IL ST CH 705 § 60678(b).

The Levert appellants contend the trial court abused its discretion in recognizing the State of Illinois’s sovereign immunity and by declining jurisdiction based on principles of comity. Appellants posit that under Nevada v. Hall, 440 U.S. 410, 99 S.Ct. 1182, 59 L.Ed.2d 416 (1979), a court can assert jurisdiction over another state despite its laws regarding sovereign immunity. Appellants further argue that no constitutional or statutory prohibitions prevented the trial court from rejecting Illinois’ claims of sovereign immunity.

Appellees assert that because the University of Illinois is subject to possible financial liability based on plaintiffs’ alleged contractual obligations, the trial court properly found these claims should be adjudicated in the Illinois Court of Claims. Appellees urge that in declining jurisdiction and abstaining from hearing these claims, the trial court properly applied accepted principles of comity and sovereign immunity. Appellees contend that appellants’ reliance on the Hall case is misplaced.

In Hall, California residents filed suit in a California state court seeking damages against the State of Nevada and others for injuries they sustained in a collision that occurred on a California highway. The collision involved a Nevada-owned vehicle that was engaged in official business. Because the State of California had waived its own immunity from liability and permitted full recovery against itself in similar circumstances, the California state court denied the State of Nevada’s claims of immunity and awarded damages in plaintiffs’ favor. 440 U.S. at 412-413, 424, 99 S.Ct. 1182.

The United States Supreme Court granted the State of Nevada’s writ of cer-tiorari and addressed the issue of state sovereign immunity asserted on the basis of the eleventh amendment, full faith and credit, and comity. First, the Hall court held that the eleventh amendment does not prohibit one state from asserting jurisdiction over another state. Nevada v. Hall, 440 U.S. at 420-421, 99 S.Ct. 1182. Second, the Hall Court found that the full faith and credit clause does not require the forum state to apply another state’s sovereign immunity law in violation of its own legitimate public policy. Nevada v. Hall, 440 U.S. at 422-424, 99 S.Ct. 1182. Lastly, the Hall Court found that although a state may recognize another state’s sovereign immunity based on comity, it is not constitutionally mandated to do so. Nevada v. Hall, 440 U.S. at 426, 99 S.Ct. 1182.

Responding to appellant’s arguments, we note that the Hall holding addressed whether a state could refuse to extend immunity rather than whether a state court should refuse to extend immunity as a matter of comity. But in addressing the issues presented, the Supreme Court also encouraged the states to afford each other immunity:

It may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so.

Nevada v. Hall, 440 U.S. at 426, 99 S.Ct. 1182.

Because comity is grounded in cooperation and mutuality and encourages amiable and respectful relations among the states, Louisiana should extend comity by recognizing the laws and judicial decisions of other states unless: 1) the foreign state declines to extend comity to Louisiana or sister states under the same or similar circumstances; or 2) the foreign law produces a result in violation of Louisiana’s own legitimate public policy. See Hawsey v. Louisiana Dep’t of Social Services, 934 S.W.2d 723, 726 (TexApp. 1st Dist. 1996).

The jurisprudence of both Louisiana and Illinois demonstrates that both jurisdictions are cooperative jurisdictions for purposes of applying comity. Although we have found no Louisiana case wherein a sister state has requested that our state decline jurisdiction based on comity, Louisiana has extended comity to other states by recognizing and applying the laws of another state. See, e.g., Succession of Fisher, 235 La. 263, 103 So.2d 276, 281 (1958); Fisher v. Bullington, 223 La. 368, 65 So.2d 880, 882 (1953). Examining Illinois’s jurisprudence, we find that Illinois has routinely honored the sovereign immunity of a sister state in circumstances involving alleged negligence by an Indiana state agency causing injury to an individual in Illinois. See Schoeberlein v. Purdue University, 129 Ill.2d 372, 135 Ill.Dec. 787, 544 N.E.2d 283 (5/17/89); King v. Northern Indiana Commuter Transp. Dist., 337 Ill.App.3d 52, 785 N.E.2d 35, 271 Ill.Dec. 384 (1st Dist. 1/13/03), writ denied, 203 Ill.2d 548, 273 Ill.Dec. 138, 788 N.E.2d 729 (4/2/03); Grabarczyk v. Chicago and South Shore R.R., 279 Ill.App.3d 208, 215 Ill.Dec. 748, 664 N.E.2d 145 (1st Dist.3/26/96), writ denied, 167 Ill.2d 552, 217 Ill.Dec. 664, 667 N.E.2d 1057 (6/5/96). In declining jurisdiction, the IUinois courts found that recognizing the sister state’s sovereign immunity was consistent with the policies of Illinois’s constitution. King, 337 Ill.App.3d at 57, 271 Ill.Dec. at 384, 785 N.E.2d at 39. In so concluding, the Schoeberlein court noted:

[T]he generaUy accepted rationale of the States that have not, through comity, accepted another State’s claim of sovereign immunity is that a sister State’s claim of immunity will not be recognized if the forum of litigation permits recovery against the home State under similar circumstances.

Schoeberlein, 129 Ill.2d at 384, 135 Ill.Dec. 792, 544 N.E.2d 288.

Because there is no basis for the State of Illinois to conclude that we would not honor its immunity provisions in reciprocal fashion and because the State of Illinois has previously declined to exercise jurisdiction over another sister state based on principles of comity and sovereign immunity, we find that Illinois would likely | ^recognize the State of Louisiana’s sovereign immunity provisions if presented with a suit involving circumstances similar to the present one.

States that have rejected sister state’s claims of sovereign immunity have largely done so because they find that extending immunity would do violence to the public policy of the forum state. See Lee v. Miller County, Arkansas, 800 F.2d at 1378. In that vein, appellants contend that by honoring Illinois’s reservation of sovereign immunity, Louisiana’s public policy is violated. They argue that if this state declines jurisdiction, appellants may be deprived of the availability of pursuing their claims through a class action procedure. They assert that because the availability of the class action procedure in the Illinois Court of Claims is “at best unsettled,” the trial court should have maintained jurisdiction to insure that this procedure was available to them. Appellees also assert they will be deprived of an opportunity to appeal since Illinois’s laws do not provide for appeals from decisions of the Court of Claims.

Although it may ultimately be determined that the Illinois Court of Claims will not permit appellants to proceed via a class action, we conclude that the policy | t supporting comity outweighs any resulting detriment to appellants. One state’s law does not violate another state’s public policy merely because the laws of the two states differ. Delhomme Industries, Inc. v. Houston Beechcraft, Inc., 669 F.2d 1049, 1058 (5th Cir.1982). Consequently, a mere disparity in the laws, particularly when the disparity involves procedural law, does not preclude enforcement of the other sovereign’s law. See Lee v. Miller County, Arkansas, 800 F.2d at 1375 and Matter of Axona Intern. Credit & Commerce Ltd., 88 B.R. 597 (S.D.N.Y.7/8/88), affirmed, 115 B.R. 442 (S.D.N.Y.5/11/90).

In the present case, even if this suit were to proceed in a Louisiana forum, appellants have not yet established that they are entitled to proceed via a class action proceeding. Thus, appellants have not demonstrated that the differences in the laws of each state are consequential much less violative of this state’s public policy. Additionally, even if we assume that appellants would be entitled to proceed via a class action proceeding, we agree with appellee’s assertion that Louisiana’s procedural laws on class actions do not equate to a strong public policy that would require the State of Louisiana to deny Illinois’ request for recognition of its sovereign immunity. Although the possible lack of a class action procedure and the lack of a right to appeal the Court of Claims’ decision may have an adverse ef-feet on these particular plaintiffs, the recognition of Illinois’ sovereign immunity laws in this state does not violate good morals, principles of natural justice, or result in prejudice to the general interests of Louisiana citizens. See Lee v. Miller County, Arkansas, 800 F.2d at 1375. Accordingly, we conclude that, despite the difference in the procedural laws of each state, because plaintiffs/appellants have recourse to individually seek full redress of their claims in Illinois’ Court of Claims, Illinois’s 11 «sovereign immunity law does not violate Louisiana’s public or judicial policies. The trial court did not abuse its discretion by honoring Illinois’s sovereign immunity laws. In reaching that conclusion, we also note the positive effects of reciprocal comity that may result from exercising comity. By extending comity to a sister state, other states will be more likely to honor Louisiana’s sovereign immunity laws when litigation arises within their forums in the future.

For these reasons, we find that the trial court did not abuse its discretion in declining jurisdiction based on principles of comity. The trial court, however, incorrectly concluded that the principles of comity and lack of subject matter jurisdiction were synonymous. Because the trial court actually had subject matter jurisdiction to resolve the breach of contract claims, as explained above, the trial court should not have granted the exception raising the objection of lack of subject matter jurisdiction. Accordingly, we vacate that portion of the judgment. But because we agree with the trial court that principles of comity weigh in favor of recognizing the State of Illinois’s sovereign immunity law, we accordingly render judgment expressly granting defendant’s alternative motion to dismiss on grounds of sovereign immunity and comity.

iii. Propriety of transfer of Levert suit

Pursuant to the September 18, 2002 judgment, the trial court ordered, “plaintiffs’ suit shall be transferred to the Illinois Court of Claims for further proceedings.” Appellants seek to have this order reversed, asserting that a state district court does not have jurisdiction to transfer a matter to a foreign court. Ap-pellees do not challenge appellant’s assertion that there was no basis for the transfer order. At this juncture, they assert, “[I]t is for plaintiffs/appellants to |19determine how to proceed .... ” Thus, because we agree with that assertion, we vacate that portion of the trial court’s judgment that ordered the transfer of plaintiffs’ suit.

CONCLUSION

For the above reasons, we hereby dismiss the appeal of the September 18, 2002 judgment with respect to the Landeche suit (2002 CA 2680). With respect to the Levert suit (2002 CA 2679), we vacate the judgment and render judgment expressly granting defendant’s alternate motion to dismiss on grounds of sovereign immunity and comity. In each suit, appeal costs are assessed against plaintiffs-appellants.

2002 CA 2680: APPEAL DISMISSED.

2002 CA 2679: VACATED AND RENDERED.

      .The University of Illinois maintains that its website and other literature it disseminated addressing ticket sedes informed prospective purchasers that ticket sales were subject to a priority allocation with priority being assigned first to I Fund/Fighting Illini Scholarship Fund (FISF) members, second to student, faculty/staff, and general public football season ticket holders who are not I fund/FIS F members, and third to student, faculty/staff, and general public who are not I Fund/FISF members or season ticket holders. The University claims that its online and telephone transactions were not guaranteed and that the University maintained the right to reduce orders or make refunds based on this priority allocation.

      . The Levert petition named the University of Illinois at Urbana/Champaign through the Board of Trustees as defendant. For purposes of this opinion, we generally refer to the Board as the defendant.

      . The named plaintiffs that are listed include those that were named in the original and amending petitions prior to the trial court’s December 27, 2001 ruling that awarded the preliminary injunctive relief prayed for by the plaintiffs.

      .The Board initially raised an exception raising the objection of lack of subject matter jurisdiction. During the December 27, 2001 hearing, the trial court denied the exception insofar as it was asserted relative to the request for preliminary injunctive relief. On January 9, 2002, the trial court signed a written judgment to that effect that also ordered the injunctive relief.
      During the hearing on the exception, the trial court acknowledged that the State of Illinois provides that its Court of Claims has exclusive jurisdiction to hear and determine "[a]ll claims against the State founded upon any contract entered into with the State of Illinois.” 705 Ill. Comp. Stat. 505/8. But the court found that Illinois law would not require a request for injunctive relief to be brought in the Illinois Court of Claims, citing Illinois State Employees Assn. v. Dep't of Children and Family Services, 178 Ill.App.3d 712, 127 Ill.Dec. 694, 533 N.E.2d 566 (4 Dist. 1/19/89) and Rockford Memorial Hosp. v. The Dep’t of Human Rights, 272 Ill.App.3d 751, 209 Ill.Dec. 471, 651 N.E.2d 649 (2 Dist 5/31/95), writ denied, 163 Ill.2d 586, 212 Ill. Dec. 437, 657 N.E.2d 638 (10/4/95) (both recognizing exceptions to the Illinois doctrine of sovereign immunity for claims of injunctive relief against state agencies or officials).

      . The substituted plaintiffs were Julie Lewis, Sidney Evans, Robert Roussel, Jr., David Thomas, Marshaun Bacon, and Timothy Burke.

      . The additional plaintiffs were Roderick Jar-amillo, Patrick Doise, Steve Schexnayder, Mishaux Ballard, and Liza Dottolo.

      . The plaintiffs have not challenged the assertion that the Board is considered an arm of the state.

      . Pursuant to La. R.S. 13:3201B, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and the Constitution of the United States. An identification of minimum contacts, however, does not determine whether Louisiana should decline jurisdiction based on principles of comity. But a lack of personal jurisdiction would pretermit the need to address the issue of comity. In this case, however, we do not address whether the trial court had personal jurisdiction over the Board because it did not raise an objection challenging lack of personal jurisdiction. Such an objection is waived unless pleaded through the declinatory exception. La. C.C. P. art. 925.

      . Our state has also benefited from a sister state's exercise of comity. See Hawsey v. Louisiana Dep’t of Social Services, 934 S.W.2d 723, 726 (Tex.App. 1st Dist.1996), wherein a Texas appellate court concluded that comity was properly extended to the state of Louisiana because its law did not produce a result that violated Texas’s legitimate public policy.

      . Appellants cite only one Illinois case, People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625 (1957), to support their proposition that Illinois's courts have exercised jurisdiction when faced with a sovereign immunity claim by a sister state. The Schoeberlein court acknowledged that it had previously declined to honor a sovereign immunity claim by the State of Missouri in the Streeper case, but the Schoeberlein court distinguished Streeper on the basis that it involved an “in rem action concerning property located within Illinois.” Schoeberlein v. Purdue University, 129 Ill.2d at 382, 544 N.E.2d at 287, 135 Ill.Dec. at 791 (Ill.1989). The Streeper court had found that "0]and acquired by one State in another is held subject to the laws of the latter ...” stating that "[i]f it were otherwise, the acquisition of land in Illinois by another State would effect a separate island of sovereignty within [Illinois’s] boundaries.” Streeper, 12 Ill.2d at 212-213, 145 N.E.2d at 629 (1957). Since the facts of the present case, do not involve physical property located within the State of Louisiana, we do not find that Streeper presents support for the proposition that Illinois would decline to extend comity to Louisiana if presented with a suit involving circumstances similar to the present case.

      . The Louisiana Constitution waives sovereign immunity “from suit and liability in contract or for injury to person or property.” La. Const, art. XII, § 10(A). This waiver is subject to limitations and procedural rules established by the Louisiana legislature. La. Const, art. XII, § 10(C). La. R.S. 13:5106 mandates that "No suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.” Additionally, La. R.S. 13:5104(A) sets forth that “[a]ll suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capitel is located or in the district court having jurisdiction in the parish in which the cause of action arises.”

      . In Farrell v. The State of Illinois, 52 Ill.Ct.Cl. 275 (Ill.Ct.Cl.1/10/00), the Illinois Court of Claims pretermitted ruling on the issue of whether it lacked jurisdiction to entertain a class action, but in doing so commented that the issue was unsettled.

      . IL ST CH 705 § 505/17 provides, "Any final determination against the claimant on any claim prosecuted as provided in this Act shall forever bar any further claim in the court arising out of the rejected claim.”


source: Caselaw Access Project

author: DOWNING, J.

license: Public Domain

text:
    Guy M. GUIDRY v. Clarence BREWER d/b/a Brewer’s Construction
    No. 2002 CA 2693.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      William R. Mustian, III, Metairie, Counsel for Plaintiff/Appellant Guy M. Guidry.
    John J. Rabalais, Covington, Counsel for Defendant/Appellee Clarence Brewer d/b/a Brewer’s Construction.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   DOWNING, J.

Guy Guidry (Guidry) appeals a judgment dismissing his workers’ compensation action against his employer, Clarence Brewer, d/b/a Brewer’s Construction Company (Brewer). The Workers’ Compensation Judge (WCJ) found that Guidry failed to establish a work-related accident. Brewer answered the appeal alleging that the WCJ erred in failing to order the forfeiture of Guidry’s benefits and in assessing Brewer with costs. Both parties contested dismissal of their respective penalty claims. For the following reasons, we affirm the workers’ compensation judgment.

FACTS AND PROCEDURAL HISTORY

Brewer was renovating an apartment complex. He hired Guy Guidry as a contract labor employee to help with the repairs. Guidry claimed his back was injured on the job on April 18, 2001, while lifting a piece of sheetrock. The only witness to this event was his helper and friend, Marc Hammac. Guidry had worked sporadically for Brewer for several years, but Hammac was only hired one week prior to the incident. At the time, Guidry was taken to East Jefferson General Hospital, and on May 13, 2001, he went to the emergency room at the St. Tammany Parish Hospital for acute low back pain. At both hospitals he received medicine for pain and a muscle relaxant. He continued treatment for back pain. On August 29, 2001, an MRI confirmed that Guidry had a herniated disc at L 4-5. Brewer, however, disputed that Guidry incurred the injury while working as his employee.

The matter was tried October 2, 2002. Judgment was rendered October 22, 2002, dismissing the action. The WCJ concluded that Guidry failed to meet his burden of proof to establish that he incurred a work-related accident. The WCJ further concluded that while there were inconsistent statements and misrepresentations on both sides, the discrepancies did not meet the criteria to | ¡¡impose penalties under La.R.S. 23:1208. He therefore dismissed each party’s La.R.S. 23:1208 penalty claim. He cast Brewer with all costs of litigation. From that judgment, Guidry appealed and Brewer answered the appeal.

GUIDRY’S ASSIGNMENTS OF ERROR

Guidry alleges that the trial court erred:

In finding insufficient proof of an accident where an eyewitness testified to the details and that testimony was unchallenged.
In failing to assess penalties pursuant to La.R.S. 23:1208(D) where there was evidence that the employer schemed to provide perjured testimony to defeat the claim.
In not reaching issues of causation, extent of disability, compensation rate, medical bills and authorization for surgery.

BREWER’S ANSWER TO APPEAL

Brewer alleges that the trial court erred:

In failing to assess penalties and attorney fees against the employee pursuant to La.R.S. 23:1208. And failing to order employee to forfeit the benefit entitlement when the employee misrepresented his medical history and the facts of the accident.
In assessing the employer with all costs of the proceeding when the claimant did not prevail in his claim.

WORK-RELATED ACCIDENT

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La.R.S. 23:1031. The employee who claims a right to collect workers compensation benefits has the burden of proving a work-related accident by a preponderance of the evidence. Issa v. LL & G Construction, Inc., 02-1215, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 912, 914. Pursuant to La.R.S. 23:1021(1) accident means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury that is more than simply a gradual deterioration or progressive degeneration. Id. The claimant is not required to establish the exact cause of the disability, but |4the claimant must demonstrate that the accident had a causal connection with the disability. Quinones v. United States Fidelity and Guaranty Company, 93-1648, p. 6 (La.1/14/94), 630 So.2d 1303, 1306-1307.

Guidry alleges that the trial court erred in finding insufficient proof that his herniated disc was incurred by an accident while working for Brewer. Guidry contends the evidence proved that when lifting a board of sheetrock, he felt a “pop” in his back and dropped to his knees in pain. Guidry argues that this incident should have been considered an accident by the WCJ because he was relatively symptom free before picking up the sheetrock and incapacitated afterwards. Guidry testified that Mark Hammac, his helper at the construction site, was an eyewitness. Guidry argues that the WCJ disregarded Ham-mac’s testimony and also disregarded the testimony of Dr. Waguespack, his orthopedic surgeon.

We first address Hammac’s deposition testimony. While Hammac might be truthful in his testimony, the recitation of facts, as he witnessed them, does not prove that a “precipitous event” caused Guidry’s herniated disc. Hammac merely confirmed that Guidry complained about his back hurting while carrying a board of sheetrock and that he dropped to his knees, nearly in tears with pain. This testimony fails to show that picking up the material caused Guidry’s ruptured disc or that some other cause was not responsible for the injury.

Dr. Waguespack’s deposition testimony might arguably have proven that an accident occurred because he did testify that in his opinion Guidry’s back injury occurred when he picked up the sheetrock while working for Brewer. Dr. Wagues-pack’s deposition testimony stated that Guidry had an MRI September 4, 2001, indicating a disc herniation at L 4-5 and that this injury was the cause of the pain in his back and down his left leg and foot.

The WCJ found, however, that Dr. Wag-uespack’s opinion was based upon “faulty, incomplete medical histories provided by Guidry.” The record reflects that 1.¡Guidry made numerous inconsistent statements with respect to his prior medical history. Guidry omitted the fact that he was previously treated for similar back pain eight years earlier and for a urinary tract infection and sciatica manifesting similar symptoms six months prior to this incident. These omissions are in direct contradiction to medical records introduced into evidence. However, Guidry testified that after being conservatively treated following both of these incidents, he had no further symptoms until the accident while working for Brewer.

On October 12, 2000, Guidry went to the Washington-St. Tammany Medical Center complaining that he hurt his back when lifting a barbeque grill. This report, generated six months prior to the April 2001 alleged accident, did show some osteoporosis and degeneration of the spine, but the diagnosis was a urinary tract infection and sciatica. While Guidry’s complaints to Dr. Nanjappa were similar to those alleged in the accident at issue, he was treated for the infection and not for spinal problems.

Dr. Claude Williams, an orthopedic surgeon who examined Guidry on March 20, 2002, at the request of the employer, explained in deposition that the diagnoses of a back injury is based largely on the truthfulness of the patient. And since Guidry did not report his previous emergency room visits for back pain, he could not state with a 100% certainty whether the ruptured disc was caused by the incident while working for Brewer.

An example of the consequence of a lack of credibility comes from Dr. John P. Sweeney, an orthopedic surgeon. Dr. Sweeney examined Guidry and initially determined that, in his opinion, the substantial disc bulge encroaching on the nerve roof was caused from the work-related incident while working for Brewer. However, in a deposition on January 10, 2002, Dr. Sweeney recanted this opinion and testified that his prior opinion was based upon an incomplete or inaccurate [fimedical history. Specifically, he was unaware of Gui-dry’s prior accidents and other important deficits in his medical history.

Dr. Sweeney testified that Guidry’s responses to stimuli also indicated “symptom magnification.” In other words, his symptoms were out of proportion to what he found in the physical exam. Dr. Sweeney agreed that Guidry did have a bulging lumbar disc but that it appeared to be degenerative in nature. He explained that before he had the accurate and complete medical report, he thought the symptoms could be from a work-related injury, but not after seeing the complete picture. The complete picture included other back pain incidents such as when Dr. Morris Klinger treated Guidry in 1993 after an automobile accident. Dr. Klinger testified that x-rays taken at that time showed that Guidry had sclerosis of TIO and Til causing back and leg pain. And earlier in 1992, Dr. Andrew P. Mayer treated Guidry for pain “radiating down his back which felt like a knife” that was brought on by lifting a heavy generator.

After considering the totality of circumstances, the WCJ concluded that Guidry failed to establish, by a preponderance of the evidence, that his injury occurred while working for Brewer or that it was the reason for his present back disability. The WCJ specifically found that it was more probable that not that Guidry’s present complained of condition arose from incidents not associated with Guidry’s employment with Brewer.

We note that generally a causal connection can be established when the employee proves that before the accident he was in good health, but commencing with the accident, the disabling symptoms appeared, and there is sufficient medical evidence to show a reasonable possibility of a causal connection between the accident and the disabling injury. Quinones, 93-1648 at pp. 6-7, 630 So.2d at 1307. In this case, however, there was evidence that Guidry was suffering symptoms from a degenerative spinal disease years preceding the alleged accident. 17Thus, the WCJ did not err in determining that Guidry failed to prove that his herniated disc resulted from an “unexpected or unforeseen actual, identifiable, precipitous event” as required in La.R.S. 23:1021(1). Considering the medical evidence regarding Gui-dry’s compromised spine, and based upon our review of the record, it was equally reasonable that Guidry’s injury resulted from a gradual deterioration or degeneration rather than an accident as defined in La.R.S. 23:1021(1). An appellate court’s review of factual findings is governed by the manifest error standard. Freeman v. Poulan/Weed Eater, 93-1530, p. 4 (La.1/14/94), 630 So.2d 733, 737. A factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Accordingly, we find no manifest error in the WCJ’s determination -that Guidry failed to prove his present condition arose from an accident while working for Brewer. Thus, Guidry’s first assignment of error is without merit. This holding renders Guidry’s third assignment of error regarding causation, extent of disability, compensation rate, medical bills, and authorization for surgery, moot. La.R.S. 23:1208

PENALTIES

Guidry and Brewer both allege that the WCJ erred in failing to assess penalties against the opposing party because of their respective lack of veracity.

Guidry claims it was error not to assess penalties pursuant to La.R.S. 23:1208(D) where there was evidence of Brewer scheming to provide perjured testimony to defeat his claim.

Conversely, Brewer claims the WCJ erred in not ordering Guidry to forfeit benefits or in not assessing Guidry with penalties and attorney fees when he misrepresented his medical history and other facts surrounding the alleged accident.

|sLa.R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for purpose of obtaining or defeating any benefit or payment under this Chapter, to willfully make a false statement or representation.
D. [A]ny person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars....
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any rights to compensation benefits.

ASSESSING EMPLOYER WITH PENALTIES

Guidry’s second assignment of error alleges that the WCJ erred in failing to assess penalties pursuant to La.R.S. 23:1208(D) when Brewer schemed to get a co-worker to testify that Guidry complained with back pain prior to the alleged accident.

The WCJ, however, concluded that the co-worker made no bones about having a blatant disregard for the truth. The coworker admitted he experienced addiction and other emotional problems and told each side whatever it wanted to hear. The WCJ stated that the testimony was of little value and failed to assess penalties against Brewer.

The record reflects that no competent evidence was introduced to prove Brewer schemed to undermine Guidry’s workers compensation claim. Accordingly, the WCJ did not err in finding that the requirements to impose sanctions pursuant to La.R.S. 23:1208 were not met. Therefore, this assignment of error is without merit.

FORFEITURE OF BENEFITS

Brewer argues that Guidry should be denied benefits because of alleged willful misrepresentations. The WCJ determined that there were numerous inconsistencies in Guidry’s testimony concerning his prior injuries. But he assessed neither penalties nor attorney fees. The WCJ found Guidry’s recollection |9of events to be selective, but noted “Guidry’s missteps with the truth do not rise to the level of statutory forfeiture.”

Benefits are forfeited only upon “willfully” made false statements. La.R.S. 23:1208. It is well settled that false statements that are willfully made for the purpose of obtaining workers’ compensation benefits constitutes an attempt to defraud the system, and the plain language of the statute mandates benefit forfeiture. St. Bernard Parish Police Jury v. Duplessis, 02-0632, p. 9 (La.12/4/02), 831 So.2d 955, 960. However whether a statement was made “willfully” is a credibility call. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Parfait v. Gulf Island Fabrication, Inc., 97-2104, p. 4 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 16.

The thrust of Brewer’s argument is that Guidry failed to disclose his two visits to the Bogalusa emergency room when he was having pains in his back running down his leg. Brewer claims that this selective recall was done intentionally to obtain workers compensation benefits and, thus, La. R.S. 23:1208 penalties must be triggered pursuant to the ruling in Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7.

The record reflects, and Guidry admitted, that he did not give a complete and accurate medical history to the claims adjuster or in his deposition. However, Dr. Waguespack, his treating physician, testified in deposition, that Guidry did disclose previous back pains and was truthful in saying he never had back surgery or made a workers compensation claim.

|inWe agree that while Guidry’s recollection of events may have been selective, it was not manifestly erroneous for the WCJ to find that Guidry’s “missteps with the truth” do not rise to the level of statutory forfeiture. Forfeiture of benefits under La. R.S. R.S.23:1208 requires (1) a false statement or representation, (2) willfully made, (3) for the purpose of obtaining or defeating any benefit or payment. Resweber, 94-2708 at p. 7, 660 So.2d at 12. There is no question that Guidry did not give an accurate and complete medical history to the claims adjuster or in his deposition regarding incidents nearly ten years earlier. However, it is not unreasonable for the WCJ to give him the benefit of the doubt on the old injuries and consider them an oversight rather than a deliberate false representation. Further we note that the more recent back pain incident was diagnosed as being caused by a urinary tract infection and sciatica.

Accordingly, Brewer’s second assignment of error is without merit.

ASSESSING COSTS AGAINST EMPLOYER

Brewer alleges that the WCJ erred in assessing him with the costs of this proceeding when Guidry did not prevail in the claim.

A trial court is given great discretion in taxing costs in any manner it deems equitable. La.C.C.P. art.1920. A trial court’s assessment of costs will not be reversed on appeal in the absence of an abuse of discretion. Ford v. State Dept. of Public Safety, 00-1546, p. 1 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156, 1157. However, jurisprudence has also established that when a prevailing party is taxed with the costs of litigation, it is usually because the party in some way incurred additional costs pointlessly or engaged in other conduct that justified an assessment of costs against the litigant. Id.

In this case, the WCJ gave precise and cogent reasons why Brewer was assessed with costs even though Guidry did not prevail on his claim. The WCJ Instated that Brewer’s behavior was overzealous and overbearing, causing needless demands on the WCJ’s schedule.

We conclude that the WCJ did not abuse his vast discretion in casting Brewer with all costs. This assignment of error is without merit.

DECREE

For the reasons stated above we affirm the judgment of the Workers’ Compensation Judge. The cost of this proceeding is to be equally assessed against both parties.

AFFIRMED.

McClendon, j., concurs.


author: McCLENDON, J.

text:
    Daryl J. WILLIAMS v. BET CONSTRUCTION, INC. and Eagle Pacific Insurance Company
    No. 2003 CA 0002.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Daniel J. Dazet, Baton Rouge, for Appellant/Plaintiff Daryl J. Williams.
    Patrick H. Patrick, New Orleans, for Appellees/Defendants BET Construction, Inc. and Eagle Pacific Ins. Company.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   McCLENDON, J.

This appeal arises from an action for workers’ compensation benefits that were denied. For the reasons that follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On March 25, 1998, plaintiff, Daryl Williams, suffered an injury to his back while in the course and scope of his employment with BET Construction, Inc. (BET). Plaintiff began receiving workers’ compensation benefits and medical treatment. Subsequently, BET filed a disputed claim for benefits, seeking adjudication that no further benefits were due plaintiff. Plaintiff reconvened seeking supplemental earnings benefits. A trial was held and judgment rendered on September 13,1999, in favor of BET and against plaintiff, in which the Office of Workers’ Compensation (OWC) judge concluded that:

1) plaintiff failed to carry his burden of proof that he was entitled to workers’ compensation supplemental earnings benefits,

2) by refusing to follow and complete the work-hardening courses, plaintiff was not entitled to additional indemnity benefits, and

3) plaintiff offered no support for his claim for reconventional demand, and it was therefore dismissed.

This judgment was not appealed.

A second disputed claim for workers’ compensation benefits, arising out of the March 25, 1998 accident, was filed on February 25, 2000, with the OWC, this time by plaintiff against BET and its insurer, Eagle Pacific Insurance Company (Eagle). Plaintiff alleged total temporary disability that entitled him to benefits and medical treatment.

Defendants, BET and Eagle, filed an exception of res judicata, which was granted by the OWC judge, dismissing plaintiffs claim. Plaintiff ^appealed and this Court reversed the granting of the exception and remanded the matter. Williams v. BET Constr. Inc., 2000-1765 (La.App. 1 Cir. 11/9/01), 818 So.2d 21.

Following trial on the merits, judgment was signed on October 1, 2002, in favor of BET and against plaintiff, dismissing plaintiffs claim with prejudice. The OWC judge determined that:

1) there can be no modification of a prior workers’ compensation judgment that did not award any workers’ compensation benefits, and therefore plaintiffs request for modification of the first judgment was denied,

2) the first judgment was not based on conditions that could change,

3) plaintiff failed to prove an increase in his disability after the first trial, and

4) plaintiff failed to prove that the medical benefits he sought were necessary services related to the March 25, 1998 accident.

This appeal followed.

In his two assignments of error, plaintiff/appellant asserts that the OWC judge made errors of law in 1) considering the claim filed by plaintiff as a request for modification of a prior judgment rather than as a new claim, and 2) not giving greater weight to the treating physician’s opinion over the opinion of the employer-selected doctor.

DISCUSSION

Since the inception of workers’ compensation in this state, the legislature has “expressly provided that a compensation award can be subject to modification based on a change in the worker’s condition.” Jackson v. Iberia Parish Gov’t, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524. Workers’ compensation law is designed so that when the OWC judge ^estimates the extent of the disability at the time of the original award he does so “without having to worry about being forever bound by the first appraisal.” Id. By allowing awards of compensation to be reopened, the overriding purpose of the statutory scheme, that a worker receives compensation for as long as he is disabled, but not longer, is ensured. Falgout v. Dealers Truck Equip. Co., 98-3150, p. 9 (La.10/19/99), 748 So.2d 399, 406.

Prior to 1990, modification of workers’ compensation judgments was governed by LSA-R.S. 23:13S1(C). In 1990, the legislature repealed LSA-R.S. 23:1331(C) and replaced it with LSA-R.S. 23:1310.8. LSA-R.S. 23:1310.8(B) provides:

B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award (Emphasis added).

In the consolidated cases of Matthews v. Farley Indus. and Martin v. Texaco, Inc., 95-1387, 95-1796 (La.2/28/96), 668 So.2d 1144, both claimants were voluntarily paid compensation benefits, and their benefits were terminated by their employers, resulting in subsequent suits for compensation. In both cases, the claimants were denied benefits and later | sfiled motions alleging a change in circumstances and seeking a modification of their prior adverse judgments. In finding that the workers’ compensation judge lacked jurisdiction to modify the previous adverse judgments, the supreme court stated, “The former statute allowed modification of a compensation judgment or the director’s recommendation. The current statute uses the word ‘award.’ Under Section B, the hearing officer may review any award and end, diminish or increase the compensation previously awarded. The language clearly requires a prior award of compensation.” Matthews v. Farley Indus., 95-1387 at p. 5, 668 So.2d at 1146.

Further, in Jackson v. Iberia Parish Gov’t, 98-1810 at p. 4, 732 So.2d at 521, the supreme court reiterated its prior holding by stating, “Matthews determined that the word ‘award’ found in Section 1310.8(B) contemplates that the plaintiff has received a judgment awarding compensation. Therefore, a judgment, such as those received by the plaintiffs in Matthews denying compensation benefits does not produce an ‘award’ subject to review under the statute.”

Plaintiff did not receive an award of compensation. His request for benefits (the reeonventional demand) was denied. Since LSA-R.S. 23:1310(B) requires a pri- or award of compensation before a judgment may be modified, the 1999 judgment reserved nothing to plaintiff to reconsider or modify.

Plaintiff asserts, however, that the current claim is a completely new claim, independent of any prior claim, and he contends, therefore, that it is not a modification of the prior judgment. We find no merit in plaintiffs attempt to classify this as a new claim. The judgment denying supplemental earnings benefits was entered in 1999. Plaintiff did not appeal and that judgment became a final adjudication. The present claim of plaintiff is | fibased on the same accident and same injuries asserted in the first litigation. There is no evidence of a new disability. The medical evidence simply indicates that plaintiffs complaints of pain in his back have become more severe and, because of the pain, plaintiff has been unable to return to employment.

The OWC judge lacked subject matter jurisdiction to modify the judgment denying plaintiff workers’ compensation benefits and correctly dismissed the claim. We, therefore, need not address plaintiffs second assignment of error. The appeal is dismissed.

APPEAL DISMISSED.

      .LSA-R.S. 23:1331(C) provided:
      C. At any time after six months after rendition of a judgment of compensation by the district court or at any time after six months from the date of the acceptance by the parties of the recommendation of the director under R.S. 23:1301.1, the director shall review the same upon the application of either party for a modification thereof and shall issue a recommendation pursuant to R.S. 23:1310.1.

      . Act 938 of 1988, effective January 1, 1990, repealed LSA-R.S. 23:1331 and replaced it with LSA-R.S. 23:1310.8.

      . LSA-R.S. 23:1310.8 was amended in 1999 adding subsections D and E, to provide a prescriptive limit within which an action to modify a prior award of compensation must be filed. However, in a workers' compensation case, the law in effect at the time of the compensable injury is controlling. Williams v. BET Constr. Inc., 2000-1765 at p. 6, 818 So.2d at 25.

      . Although this Court previously remanded this matter, the only issue raised before the Court was the correctness of the granting of the exception of res judicata. The question of subject matter jurisdiction was never raised. This is further supported by the trial court's ruling, on remand, that it could not modify a judgment in which nothing was awarded. We therefore do not find the prior decision of this Court to be definitive or controlling on the issue of subject matter jurisdiction.


author: PARRO, J.

text:
    Darron Jeffrey KENNEDY v. CHRISTWOOD ESTATES and Sylvia Davis

      No. 2002 CA 2602.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Delbert G. Talley, Covington, for Plaintiff-Appellant Darron Jeffrey Kennedy.
    Marilyn R. Cohen, Law Offices of Sheryl Story, Metairie, for Defendants-Appellees Christwood Living Center and American Casualty Company.
    Henry A. King, Michael A. Vincenzo, King, LeBlanc, & Bland, New Orleans, for Defendant-Appellee Sylvia Davis.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   PARRO, J.

Darron Jeffrey Kennedy appeals a judgment that granted motions for summary judgment filed by Sylvia Davis and Christ-wood Living Center and dismissed his workers’ compensation claims against them. Finding no error in this judgment, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Sylvia Davis owns a condominium unit at the Christwood Living Center (CLC) in Covington, Louisiana, which is her principal residence; she also has a second residence in Folsom, Louisiana, which she uses occasionally. Mrs. Davis hired Dar-ron Jeffrey Kennedy to perform some yard work and other odd jobs at her Folsom house and, on the occasion giving rise to his claims in this ease, also asked him to install a water line at her condominium in Covington. The purpose of the water line was to allow her to water a flower garden that had been planted on a portion of the common grounds. On October 10, 2001, Mr. Kennedy came to CLC to put in the water line. He spoke with a CLC employee, who showed him where he could tie in to the CLC water system. In doing so, Mr. Kennedy broke a water line inside a wall at CLC. As he ran to get help in shutting off the water, Mr. Kennedy slipped and, although he did not fall, he allegedly injured his back and neck.

Mr. Kennedy filed a disputed claim for compensation, seeking workers’ compensation benefits from Mrs. Davis and CLC. Both responded, denying that Mr. Kennedy was an employee of either of them, as that term is defined by the workers’ compensation statutes, when he was injured. Eventually, Mrs. Davis filed a motion for summary judgment, supported by her affidavit. CLC and its insurer, American Casualty Company, also filed a motion for summary judgment, supported by an affidavit from CLC’s executive director. Mr. Kennedy opposed both motions, and supported his opposition with his own affidavit. After a hearing, the workers’ compensation judge (WCJ) granted both motions for summary judgment and dismissed Mr. Kennedy’s claims. The judgment stated, in pertinent part:

PIT IS ORDERED, ADJUDGED AND DECREED, that the Plaintiff, Darron Kennedy[,] was an independent contractor per R.S. 23:1021 and as such, there is no genuine issue of material fact as to the employer/employee relationship between Kennedy and Mrs. Sylvia Davis[,] thus granting Davis’ Motion for Summary Judgment.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that Dar-ron Kennedy at the time of his alleged accident, was performing his duties as an independent contractor hired by Mrs. Davis and not substantially under the care, direction or control of Christwood, thus no genuine issue of material fact is present granting their [sic] Motion for Summary Judgment.

This appeal followed.

APPLICABLE LAW

Inherently, workers’ compensation is a remedy between an employer and an employee; it follows then that absent an employer-employee relationship, generally there can be no compensation recovery. Johnson v. Alexander, 419 So.2d 451, 453-54 (La.1982). An independent contractor is expressly excluded from the provisions of Louisiana’s workers’ compensation laws. See LSA-R.S. 23:1021(6). However, an exception is statutorily carved out for an independent contractor performing manual labor. Hillman v. Comm-Care, Inc., 01-1140 (La.1/15/02), 805 So.2d 1157, 1161 n. 1. Louisiana Revised Statute 23:1021(6) states:

“Independent Contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

Under this provision, a worker who provides manual labor may be entitled to workers’ compensation benefits, even if he would generally be considered to be an independent contractor, rather than an employee.

However, under the facts of this case, another provision is also applicable. Louisiana Revised Statute 23:1035(B)(1) provides, in pertinent part:

There is exempt from coverage under this Chapter all labor, work, or services performed by any employee of a private residential householder in connection with the private residential premises of such householder ... when the employee’s annual net earnings for labor, work, or services amounts to one thousand dollars or less ... and which labor, work, or services are not incidental to and do not arise out of any trade, | ¿business, or occupation of such householder .... With respect to such labor, work, or services and any employee performing the same, a private residential householder ... shall have no liability under the provisions of this Chapter either as employer or as a principal; however, any person who is engaged in the trade, business, or occupation of furnishing labor, work, or services to private residential premises ..., shall be liable under the provisions of this Chapter to his employees or their dependents for injury or death arising from and incidental to their employment in rendering such labor, work, or services.

Under this provision, when a private residential homeowner hires someone to do work in connection with his or her private residence, and the employee earns $1000 per year or less in providing those services, the homeowner is exempt from the provisions of Louisiana’s workers’ compensation laws. The only exceptions are when the work is incidental to and/or arises out of any trade, business, or occupation of the homeowner or when the homeowner is engaged in the business of furnishing such labor, in which instances the provisions of Louisiana’s workers’ compensation laws are applicable. See LSA-R.S. 23:1035(B)(1); compare Soileau v. Richard Theriot Building & Remodeling, 03-04 (La.App. 3rd Cir.6/25/03), 848 So.2d 797, 799, with Connor v. Frees Const. Co., Inc., 525 So.2d 241 (La.App. 1st Cir.), writ not considered, 532 So.2d 111 (La.1988).

ANALYSIS

In support of her motion for summary judgment, Mrs. Davis averred the following:

1. She resides and owns a condominium unit (Unit 246) which is located at the Christwood Living Center in Cov-ington, Louisiana;
2. At the time of Darron Jeffrey Kennedy’s alleged accident, she maintained a second residence on Thompson Road in Folsom, Louisiana that she used occasionally;
3. She orally contracted with Darron Jeffrey Kennedy for him to perform yard work and other odd jobs around her home in Folsom, Louisiana, and, on a single occasion, to undertake a small plumbing chore at her primary residence at the Christwood Living Center;
4. Darron Jeffrey Kennedy was installing a water line from the Christwood Living Center building to a nearby garden on or about October 10, 2001;
5. Darron Jeffery Kennedy was paid an hourly rate of $9.00 per hour for work he performed and was paid in cash or by check for his services, normally at the end of each work day;
Ifi6. Darron Jeffrey Kennedy worked at her homes in Folsom and at Christ-wood Living Center for a total of approximately ten (10) days over a one (1) month period;
7. Darron Jeffrey Kennedy was paid less than one thousand ($1,000.00) dollars for his work in connection with both of her residences;
8. She is not now, and never has been, in the home building, plumbing, home construction, home repair, or home remodeling trade, business, or occupation;
9. At no time did she ever direct or control the manner or method in which Darron Jeffrey Kennedy completed the work at her residences, except as to the final result;
10. No state or federal income taxes, FICA, or unemployment taxes were withheld from the payments made to Darron Jeffrey Kennedy or paid for him, and Darron Jeffrey Kennedy never requested the withholding of such taxes;
11. Darron Jeffrey Kennedy determined how he would perform the tasks directed by me and when (both the time and date) he chose to undertake to perform the work; and
12. The foregoing statements are true and correct and made upon my personal knowledge.

Mr. Kennedy’s affidavit in support of his opposition to her motion states, in pertinent part, that:

Mrs. Sylvia Davis contracted his services to install a water line from the Christwood Living Center building to a nearby garden on or about October 10, 2001. Mrs. Davis instructed petitioner as to what she wanted him to do and paid him $9.00 an hour to perform the work. The maintenance supervisor discussed petitioner’s work plan with him and showed him where the water lines were. Petitioner was injured while performing the job Mrs. Davis asked him to do. Neither Mrs. Davis or Christwood has paid medical or indemnity benefits.

CLC and its insurer supported their motion for summary judgment with the affidavit of John Nye, the executive director of CLC. In it, he stated:

That he is Executive Director of Christwood.
That Christwood is a “retirement community” created under the aegis of the Episcopal Church;
That Mrs. Sylvia Davis resides there in an independent apartment as opposed to the assisted living portion of the community;
| (¡That Christwood does not employ Mr. Kennedy, did not arrange for him to perform work for Mrs. Davis, and did not pay him;
The work performed was for the aesthetic benefit of the (sic) Mrs. Davis’ flower garden.

With reference to the relationship between Mrs. Davis and Mr. Kennedy, the trial court found that he was an independent contractor, and therefore, there was no genuine issue of material fact as to the employer/employee relationship and summary judgment was appropriate. However, we do not believe it is Mr. Kennedy’s status as an independent contractor that is the crucial factor, because the factual recitations indicate that Mr. Kennedy was performing manual labor, which, according to LSA-R.S. 23:1021(6), would invoke coverage under the workers’ compensation laws. Rather, the key factor is Mrs. Davis’s status as a private residential householder who was not engaged in the business of furnishing labor, work, or services to others, who employed Mr. Kennedy to do work in connection with her private residential premises, which work was in no way connected to any trade, business, or occupation in which she was engaged, and for which services she paid him less than $1,000 per annum. Mr. Kennedy admitted in his brief that “[i]f Mrs. Davis had contracted the services of Mr. Kennedy to build or repair her private residence, there would not be an employer/employee relationship” for the purpose of workers’ compensation, but argues that the work being done was “on the Christwood premises.” This begs the question, because her private residence is within the Christwood premises. Even if the exact point where the water line was to be attached was not within the confines of her private condominium, the work being done was undoubtedly “in connection with the private residential premises” of Mrs. Davis. Accordingly, this work is exempt from the provisions of the Louisiana workers’ compensation laws. See LSA-R.S. 23:1035(B)(1).

With respect to CLC, the evidence submitted in connection with the motions for summary judgment establishes that there simply was no employer/employee relationship between CLC and Mr. Kennedy. CLC did not contact him to do the work, did not hire him, did not pay him, did not control his work, and did not direct his activities in any way, other than showing him where to tie in to the water system in 17order to install the water line for Mrs. Davis. This degree of contact is factually and legally insufficient to constitute an employment relationship. Therefore, summary judgment in favor of CLC and its insurer was also appropriate.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to Mr. Kennedy.

AFFIRMED.

CARTER, J., concurs in the result.

      . The original claim named Angela Davis as his employer; her response provided her correct name, Sylvia Davis. An amended claim added Christwood Estates; its response showed the correct name was Christwood Living Center.

      . Although this affidavit does not appear in the record sent to this court, it is clear from the memoranda submitted in support of and against CLC's motion that this affidavit was attached to CLC’s memorandum in support of its motion. A copy of the affidavit was attached to CLC’s brief to this court, so its existence and contents are verifiable.

      . Although under the authority of Louisiana Code of Civil Procedure articles 5181-88, Mr. Kennedy was allowed to pursue this action and appeal without paying court costs in ad-vanee or as they accrued, the assessment of costs against him is proper under Articles 5186 and 5188.