author: FREDERICKA HOMBERG WICKER, Judge.

text:
    SEVERN PLACE ASSOCIATES, A Louisiana Partnership In Commendam v. AMERICAN BUILDING SERVICES, INC. and Lafayette Insurance Co. and IB & M.
    No. 05-CA-859.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.

      Philip R. Bulliard, Metairie, Louisiana, for Plaintiff/Appellant.
    Raymond A. Pelleteri, Jr., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Plaintiff appeals a trial court judgment granting defendants’ exception of no cause of action. For the following reasons, we affirm.

On March 31, 2004, Plaintiff, Severn Place Associates (“Severn”), filed suit against defendants, American Building Services (“American”) and Lafayette Insurance Company (“Lafayette”), through La. R.S. 22:655 (Direct Action Statute), seeking damages allegedly resulting from American’s employee’s negligence.

Severn contracted with American to provide nightly janitorial services in Severn’s office building. In its petition, Severn alleges that on May 16, 2003, one of American’s employees left for the evening with the water running in a janitor’s sink, which caused flooding to the building.

| cAmerican and its liability insurer, Lafayette, hired a company specializing in water and moisture removal to dry out the building. Thereafter, Severn presented an estimate to defendants reflecting the cost to repair additional damages caused by the flooding. American and Lafayette refused to pay for any additional repair to the building. As a result, Severn made a claim with its own insurer, Hanover, which paid the claim.

Hanover filed a subrogation action against defendants seeking reimbursement for money expended. On May 14, 2004, defendants entered into a Settlement Agreement and General Release with Hanover and Severn, by which defendants reimbursed Hanover for money expended and wherein Severn agreed to limit any claim for damages to the cost of future increased insurance premiums with Hanover.

Severn then amended its petition to claim only damages resulting from increased insurance premiums. Thereafter, defendants filed exceptions of no cause of action and prematurity stating that Severn’s insurance premiums had not increased. The trial court granted defendants’ exceptions. However, the court granted Severn fifteen days to amend its petition to state a cause of action. Following the filing of Severn’s second amended petition, which states that its insurance premiums did in fact increase 126%, defendants filed exceptions of no cause of action and res judicata, which the trial court granted. It is from the judgment granting defendants’ exception of no cause of action that Severn appeals.

DISCUSSION:

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy based on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). In reviewing the petition, well-pleaded allegations of fact are accepted as true. Id. The issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, 131.

Accepting all allegations in plaintiffs amended petition as true and applying the legal principles set forth above to the instant case, we find plaintiffs petition fails to allege sufficient facts to state a cause of action in negligence against defendants.

The question before this Court is whether Louisiana law recognizes a cause of action against a tortfeasor for increased insurance premiums arising from the tort-feasor’s negligence. We evaluate this question under the fourth element of the duty-risk analysis, described as the “scope of liability or scope of protection element.” Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440 (La.3/23/01), 782 So.2d 606, 611. Accordingly, our analysis must determine whether American’s employee’s “substandard conduct was a legal cause of the plaintiffs injuries.” Id.

A plaintiff must prove each and every element of the duty-risk analysis to be successful in its claim for recovery. Because we find that Severn cannot establish the fourth element, its claim for damages for increased insurance premiums must fail.

Determining the scope of a duty is “ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). There “must be an ‘ease of association’ between |Rthe rule of conduct, the risk of injury, and the loss sought to be recovered.” Louisiana Swabbing Service, Inc. v. Enterprise Products Company, 00-1161 (La.App. 3 Cir. 5/2/01), 784 So.2d 862, citing Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (La.1972).

Literally interpreted, La. Civ.Code art. 2315 may hold a tortfeasor liable for any damage remotely caused by his or her fault. However, “[a]s a matter of policy, the courts, under the scope of duty element of the duty-risk analysis, have established limitations on the extent of damages for which a tortfeasor is liable.” Id. We conclude, as a matter of policy, that the limitations established preclude Severn’s request for damages in the form of increased insurance premiums.

A cause of action for increased insurance premiums is an issue of limited impression in Louisiana. However, the Third Circuit did address this issue in Louisiana Swabbing Service, Inc. v. Enterprise Products Company. In that case, four employees of Louisiana Swabbing were traveling in a company truck on 1-10 in Lafayette Parish, Louisiana. A tortfea-sor hit the truck, seriously injuring all four employees. Louisiana Swabbing’s workers’ compensation insurer paid benefits and medical expenses to the injured employees and subsequently raised Louisiana Swabbing’s insurance premiums. Louisiana Swabbing brought an action against the tortfeasor to recover damages. Thereafter, the parties entered into a Settlement Agreement, dismissing all claims for damages except those resulting from the increased cost of insurance premiums.

On appeal, the Third Circuit affirmed the trial court’s decision granting summary judgment in favor of defendant, stating, “[i]t is highly unlikely that the moral, social, and economic considerations underlying the imposition of the duty breached by Eldridge encompass the risk that Louisiana Swabbing, who had contracted with a third party for insurance coverage, would suffer an increase in |fiinsurance premiums.” Louisiana Swabbing, 784 So.2d 862 at 866. The court continued, reasoning that the duty-risk analysis is premised on the policy perspective that as a society, we want to dissuade tortfeasors from committing torts by considering the moral, social, and economic repercussions of their potential actions. Id. Thus, the Third Circuit held that, as a matter of policy, the damages sought were too remote. The court found it was not reasonably foreseeable for the defendant to consider the plaintiffs increased workers’ compensation premiums in the potential moral, social, and economic repercussions of his actions. Id.

Though this may be an issue of limited impression in Louisiana, other states have consistently failed to recognize a cause of action for increased insurance premiums based on a tortfeasor’s negligence. See, Johnson v. Broomfield, 153 Misc.2d 113, 580 N.Y.S.2d 122 (N.Y.Just.Ct., 1991) (holding, that in an automobile accident a negligent driver could not be held liable for an increase in plaintiffs insurance premiums because the consequences were too remote and the defendant had no control over the contractual agreements between plaintiff and its insurer); Silvernail v. Hallenback, 33 Misc.2d 83, 226 N.Y.S.2d 48 (Sup.Ct.NY, 1962) (holding negligence of driver in automobile accident was not the proximate cause of injured’s insurance premium increase because negligent driver could not reasonably foresee the increase as a result of the accident; court further found the increase was a result of the contractual relationship between plaintiff and its insurer); Fischl v. Paller & Goldstein, 231 Cal.App.3d 1299, 282 Cal.Rptr. 802 (1991) (holding that increased workers’ compensation insurance premiums are not foreseeable enough to state a cause of action in recovery for negligence); Unique Paint Co., Inc. v. Wm. F. Neuman Co., Inc., 201 Ga.App. 463, 411 S.E.2d 352 (1991) (holding that an increase in workers’ compensation premium is too remote a consequence to recover in a breach of contract claim); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 650 A.2d 153 (1994) (declining to allow a cause of action for increased workers’ compensation insurance premiums as a matter of public policy because the insured’s economic harm was too remote a result of the tortfeasor’s actions); Schipke v. Grad, 562 N.W.2d 109 (S.D.1997) (refusing to allow a cause of action for increase in employer’s workers’ compensation premiums); Southland Constr., Inc. v. Gr. Orlando Aviation, 860 So.2d 1031 (Fla.App. 5 Dist.2003) (holding that increased workers’ compensation insurance premiums were too remote a cause of action for recovery); Fountain City Leasing, Inc. v. Key Transport, Inc., 65 Ohio App.3d 100, 582 N.E.2d 1063 (1989) (holding that no recovery exists against a third party for increase in workers’ compensation insurance premiums absent a legal relationship based on warranty or contract); Vogel v. Liberty Mutual Ins. Co., 214 Wis.2d 443, 571 N.W.2d 704 (Wis.App.1997) (denying plaintiffs claim for increased workers’ compensation insurance premiums, finding the damages too remote from the act of negligence).

In Vogel, plaintiff sued to recover an increase in his workers’ compensation premiums. Plaintiffs employee was injured in an automobile accident with a third party tortfeasor. Subsequently, plaintiff made a claim with his insurer to pay the employee’s medical expenses and lost wages. As a result of that claim, plaintiffs insurance premiums increased. Plaintiff then sued the third party tortfeasor to recover that increase. In its decision, the court notes that “both parties to this action concede [that] liability in tort may be denied based on factors that the courts have termed ‘public policy considerations.’ ” Id. at 706. The court gave detailed reasoning denying the plaintiffs cause of action, listing policy determinate factors such as remoteness of damage from injury, proportionality of tortfeasor’s culpability to the injury, and whether allowance would leave no sensible stopping point. Id. The court reasoned that failure to use due care while driving was too | ^remote to impose liability for the “collateral consequence” of increased insurance premiums. Id. at 707. The court reasoned that allowing recovery would create a field with no sensible or just stopping point, leaving the court asking “what next?” Id. The court further addressed questions that may arise in the future if the cause of action was allowed: how long would the tortfeasor be required to pay, what factors affect insurance premiums, and what would happen in cases with multiple tortfeasors; would each pay a percentage and how would they be allocated. Id. In sum, the Court determined that a cause of action for increased insurance premiums based on third party negligence opens the door to remote damages that are better precluded as a matter of public policy.

This court acknowledges that, unlike the instant case, the majority of the cases cited above are workers’ compensation eases. However, we find the policy considerations and reasons for denying causes of action in tort apply to the instant case.

In this case, Severn seeks recovery for increased insurance premiums that it claims are a result of American’s employee’s negligence. However, Severn’s insurance premiums increased because Severn made a claim with Hanover, its own insurer, to more quickly repair its property. Hanover informed Severn that if it made a claim, its insurance premiums would increase. Therefore, Severn made the decision to make a claim with the knowledge of a future increase in premiums. Severn could have continued to seek additional damages from American and Lafayette; instead, it chose to make a claim with Hanover, which increased its premiums.

Therefore, we find, as a matter of policy, plaintiff has no cause of action in negligence against defendants for its increased insurance premiums; the damages in this case are too remote. We also find plaintiff has no cause of action against | flLafayette under La. R.S. 22:1220, which provides a cause of action against an insurance company when it commits one of the listed acts that constitute a breach of the insurer’s duty to settle a claim in good faith. The trial judge referenced La. R.S. 22:1220 in his reasons for granting defendants’ exceptions; defendants argue the action is not available to the plaintiff because Lafayette did not commit any of the acts that constitute a breach of the insurer’s duties. Moreover, Severn does not specifically allege that Lafayette acted in violation of La. R.S. 22:1220. Upon review of the record, we find the plaintiff does not have a cause of action against Lafayette for failure to settle a claim under La. R.S. 22:1220.

Applying the legal principles above, we find no error in the trial court’s judgment granting defendants’ exception of no cause of action. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . We note that American was formerly known as Enterprise Janitorial Services.

      . The five elements of the duty-risk analysis identified by the Louisiana Supreme Court in Perkins are:
      "(1) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).” Perkins, 782 So.2d at 611.

      . La. R.S. 22:1220 reads as follows:
      A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
      B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:

        (1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
      (2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
      (3) Denying coverage or attempting to settle a claim on the basis of an application which the insurer knows was altered without notice to, or knowledge or consent of, the insured.
      (4) Misleading a claimant as to the applicable prescriptive period.
      (5) Failing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Samuel DAVIS, and Walter and Elaine Davis v. J.C. PENNEY STORES.
    No. 05-CA-881.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.
    Writ Denied June 23, 2006.

      Daniel J. Frazier, Jr., Frazier Law Offices, P.L.C., Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Wayne R. Maldonado, David I. Borde-lon, Ungarino & Eckert, LLC, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ^Plaintiffs sued J.C. Penney Stores (hereinafter referred to as Penney’s) for false arrest and resulting damages following plaintiffs’ detention and arrest for shoplifting. The plaintiffs have appealed the trial court judgment granting the defendant’s Motion for Directed Verdict after plaintiffs presented their case at trial. For the reasons that follow, we affirm. FACTS:

Witnesses called by the plaintiffs testified that on January 10, 2001, Samuel Davis, his 13 year old sister, Elyana Davis, his girlfriend, Samantha Jones, and his infant daughter went to the Penney’s store located in Lakeside Mall to return some items and purchase other items. After leaving the store, Mr. Davis and Elyana were stopped by Penney’s loss prevention officers and questioned regarding items of clothing in their shopping bags. The officers testified that there were 23 items in the bags, but only 10 items on the receipt. The Davises were escorted back to Penney’s and the police were called. Mr. Davis signed a statement acknowledging lathat he had shoplifted. Samuel Davis was arrested by the Jefferson Parish Sheriffs Department and his sister, Elyana Davis, was detained by Jefferson Juvenile officers. They were not prosecuted for the shoplifting offense. They filed suit against Penney’s seeking damages for false arrest. At the conclusion of the presentation of plaintiffs’ case, the trial judge granted a Directed Verdict in favor of Penney’s. Plaintiffs appealed. The evidence presented by plaintiffs is as follows.

Samantha Jones testified that plaintiff, Samuel Davis, is the father of her child. She testified that on January 10, 2001, she went to the J.C. Penney’s store located in Lakeside Mall with Mr. Davis and his sister, Elyana Davis. Ms. Jones testified that they went to Penney’s that day to return several items of clothing that she had purchased for Mr. Davis’s mother and father. These items were the wrong size. She was unable to state the number of items returned or the number of bags the items were placed in. Ms. Jones testified that when they arrived at Penney’s she brought her daughter to the photo studio on the second floor of the store then met Mr. Davis and Elyana in the infant’s department, also located on the second floor, to pick out clothes for her daughter. After picking out clothes for her daughter, Ms. Jones separated from the Davises and met them later in the food court of the mall.

Quizena Walker testified that on January 10, 2001 she was engaged to the Davises’ brother. She was working at Penney’s as a cashier on the first floor in the woman’s department. Ms. Walker testified that when the Davises came into the store, they gave her items of clothing they wanted to return. She placed the items on the side of the register and “told them to shop and get what they needed”. Ms. Walker explained that two days prior to this incident, she noticed that this register was not working correctly in that when she would scan items they would not all |4appear on the receipt. Ms. Walker testified that a male employee from Penney’s “rebooted” the register and she thought the problem was fixed. Ms. Walker testified that she did not scan all of the items of clothing that the Davises brought back to her register because some items were “an even exchange”, explaining that the procedure was to not scan items on an even exchange. Ms. Walker was unable to state how many items were exchanged, but she did testify that some items were adult clothes and some items were children’s clothes. She acknowledged that 23 items were placed in the Davises’ bag while only 10 items appeared on the receipt. She further explained that six of the items that appeared on the receipt were clearance items. In addition, she gave the Davises an associate’s discount of an additional 15%. Rather than using her associate number for the discount, she used another number that was to be used to give the discount to employees of Eckerd’s, which is owned by Penney’s, although Ms. Walker acknowledged that Mr. Davis did not work for Eckerd’s. Ms. Walker testified that she worked the remainder of her shift that day and learned of the incident when she got home. On the advice of an attorney and the Davis family, she never returned to Penney’s to work following this incident.

A video tape of the Davises was played during the testimony of Ms. Jones and Ms. Walker. This tape begins with the Davises and Ms. Jones in the infant’s department and concludes with the Davises leaving the store: Ms. Walker complained that the tape was incomplete in that it did not show the Davises coming into the store with the return items.

Samuel Davis testified that he went to Penney’s on January 10, 2001 to exchange pants for his mother, some other items of clothing for his father and sister, and to pick up other items. He testified that a bag containing these items of clothing was given to him by his mother before he left their house. He was unsure |sof what items were in the bag. Mr. Davis testified that they entered Penney’s through the mall entrance, saw Ms. Walker, and gave her the bag. They took the escalator to the infant’s department and picked out things for his daughter then picked out things for his mother and brought them to the counter. Mr. Davis explained that his mother had given him one check to pay for all of the items they were purchasing that day, so they brought all items to the register where Ms. Walker was working. After paying for the items he and Elyana went to the food court in the mall and met Ms. Jones. Mr. Davis testified that after the group finished eating, a woman security officer approached him and questioned him about the items in the bags. After examining the items in the bags, she walked him and his sister back to Penney’s. Mr. Davis stated that he allowed the woman to search the bags because he was afraid and because there were two other officers from Penney’s present. They were brought to a secluded room at Penney’s and were told that there were items in the bag that did not appear on the receipt.

Mr. Davis admitted that he signed a “civil demand notice” presented to him by Penney’s admitting to theft of merchandise and acknowledging that his detention was reasonable. Mr. Davis explained that he signed this paper without reading it because he was told that if he signed the paper, he would be free to go. He denied that anyone at Penney’s went over the document with him and stated that had he known he was admitting to theft he would not have signed it. On cross-examination, Mr. Davis admitted that in his deposition he testified that he read the form before signing it. He explained now that he meant that he only looked at it. Mr. Davis testified that he did not know what “theft” meant at the time he signed the form.

Elyana Davis testified that she accompanied her brother and Ms. Jones to Penney’s to exchange items of clothing for her and her mother. She was unable to | ¿recall what these items were, how many bags they were placed in, or how many items were being returned. She testified that some of the items had been purchased by her mother a week earlier and some of the other items were Christmas presents that needed to be exchanged for a different size. She admitted that in her deposition, she testified that the items that were to be returned were Christmas presents for her mother and consisted of two shirts and one skirt that were purchased by Ms. Walker. Elyana did not remember what they did with the bags when they entered the store, but acknowledged they did not have the bags with them when they went to the second floor. She explained that they went to the second floor and picked out items of clothing in the infant’s department and then they separated from Ms. Jones. Elyana stated that she selected items in the junior department and brought them to the woman’s department near Ms. Walker to try on. She admitted that in her deposition she testified that she saw Ms. Walker scan each item, but testified at trial that while Ms. Walker was scanning the items, she was still selecting other items so she did not see what was being scanned.

Elyana testified that after leaving the store they ate in the food court of the mall where they reunited with Ms. Jones. As they walked away from the food court, two male security officers and one female security officer from Penney’s stopped her brother and asked to see what was in the bags. Elyana testified that she went to see what was going on and they were taken back to Penney’s and placed in a room. The items were taken out of the bags by the female officer who wrote down the amount they should have been charged and accused them of theft. Elyana testified that they were not given an opportunity to explain that they had exchanged items. She further testified that her brother was presented with a document; he asked one question about the document and then signed it. Elyana |7did not remember the question her brother asked, but stated that it was not explained that by signing the document, he was admitting to theft.

Elyana testified that they were taken to jail by the police, and then she was taken to a juvenile facility where she was released to her mother, Elaine Davis.

Elaine Davis testified that she is the mother of Samuel and Elyana Davis. She testified that on January 10, 2001, Mr. Davis called and said he was going to Penney’s to take pictures of his daughter. Ms. Davis testified that she had shopped at Penney’s the week prior and had items of clothing to return and that Elyana also had gifts to return. She instructed Mr. Davis to retrieve a bag containing these items out of her closet, explaining that these items consisted of several skirts and blouses. Ms. Davis testified that Mr. Davis checked Elyana out of school and went to her office to pick up a check to pay for additional purchases they were allowed to make.

Ms. Davis testified that between 6:30 p.m. and 7:00 p.m. that evening she received a phone call from Ms. Jones telling her that Elyana and Mr. Davis had been picked up by Penney’s security. Ms. Davis testified that she called Penney’s and was told there was a discrepancy between what was in the bags they left the store with and the receipt. She asked Penney’s to keep Elyana until she could get there to pick her up. Ms. Davis testified that she called a friend who worked with the New Orleans Police Department who picked her up and drove her to Penney’s. When she got to Penney’s both of her children had been taken away by the Jefferson Parish Sheriffs Office. She spoke to Ms. Anne Boudreaux, an officer with Penney’s, who showed her clothing that was not on the receipt. Ms. Davis stated that she asked for the items that were returned, but was told by Ms. Bou-dreaux that “she could not help with the returned items”. Ms. Davis explained that the purchase was voided and the check was returned to her.

|sThe plaintiffs called Antoinette (Ann) Boudreaux to the stand on cross-examination. Ms. Boudreaux testified that she had worked in loss prevention at Penney’s for 23 years with 21 of those years being manager of loss prevention. Ms. Bou-dreaux testified that she was contacted by one of her subordinates, Howard Compton, who thought there was a problem with an employee and a customer taking merchandise. When the suspicious activity was noted, the security video cameras began recording. She reviewed the videotape and noted that there were items that were not scanned that were placed in the bag. After reviewing the tape, Ms. Boudreaux and two other loss prevention employees located Mr. Davis and his sister in the food court of the mall. Ms. Boudreaux testified that they approached the Davises, identified themselves, and told them there was a problem with a purchase and they needed to return to the store. The Davises complied. Ms. Boudreaux testified that she asked them to explain the 13 items in the bag that they did not pay for and the Davises responded that they did not know how those items got in the bags. Ms. Boudreaux testified that the Davises never told them that they had brought items of clothing back to the store for exchange. Ms. Boudreaux further testified that once she had the Davises and the merchandise back into the store, she went to look for Ms. Walker. Ms. Walker was no longer present in the store and never returned to work in the store.

Howard Compton, III was also called to the stand by plaintiff on cross-examination. Mr. Compton testified that he had been working as a loss prevention officer at Penney’s for one and a half years at the time of this incident. Another officer called him into the security room because he observed customers taking merchandise from one department to another department on another floor. Mr. Compton was unaware of how long the Davises had been in the store or whether they entered the store with bags. He further testified that as he observed the | ^Davises, he saw more merchandise going into the bags then what rang up on the receipt. At that point, he called Ms. Boudreaux who reviewed the tape. As the head of security, it was Ms. Boudreaux’s responsibility to determine which suspects to approach and to interrogate the suspects. He accompanied Ms. Boudreaux and another officer to the Davises in the mall. He testified that Ms. Boudreaux explained to the Davises there was a problem with the purchase and the Davises complied and returned to the store. Mr. Compton testified that he authored the report of the incident that was turned over to the police.

Several documents were admitted into evidence. One of the documents was a voluntary statement written and signed by Mr. Compton, which corroborated Mr. Compton’s testimony. A document entitled “evidence record” listing 13 articles of clothing and their price was attached to the statement. A document entitled “report of apprehension” listing Quizena Walker as the subject and stating that a warrant was put out for Ms. Walker’s arrest in connection with this incident was also admitted into evidence. The earlier referenced “civil demand notice” was admitted into evidence as well, stating in pertinent part:

I, Samuel Edward Davis, have admitted to the theft of merchandise valued at $494.96 from the JCPenney Company, Inc store No. 0549-6, located at 3301 Veterans Blvd. Metairie, La. 70002.
I also hereby acknowledge that my detention on this date was reasonable ... I may be receiving a letter ... to recover these civil monetary damages.

In addition to these documents, a videotape depicting the Davises in the infant’s department with Ms. Jones and bringing merchandise down to the register manned by Ms. Walker was also introduced into evidence. This videotape shows Ms. Walker placing numerous items into bags for the Davises and handing Mr. Davis four bags of merchandise. Some of the items were scanned, some were not. There is nothing on the videotape to indicate that the Davises had returned items to the 1 instore. The receipt for merchandise, which Mr. Davis received, showed the purchase of eighty-five dollars and seventy-six cents ($85.76) in merchandise, while the value of the items recovered, which were not receipted, totaled four hundred ninety-four dollars and ninety-nine cents ($494.99).

At the conclusion of plaintiffs’ case, the defendant moved for a Directed Verdict. In granting the Directed Verdict, the trial judge stated that he was looking at the overall picture. It seemed logical to assume that the proper procedure would be to scan each item that is being exchanged so that the change in size and/or color could be recorded in the inventory. He also noted that rather than use her own code to give the Davises an associate discount, Ms. Walker entered the Eckerd’s number indicating to the casual observer that these customers were Eckerd’s employees. He further noted that it was reasonable to allow the customers to exit the store so that they could not say they forgot to pay for the items. As for the location of where the Davises were stopped, the trial judge stated that this was three to four hundred feet away. While using the reasonable man standard, the trial judge noted that although Penney’s does not own this common area of the mall, they contribute to its upkeep and concluded that this area was close enough to the store to stop the suspects. The trial judge also took into account that Penney’s employees were reasonable in having their supervisor review the tape prior to stopping the Davises. Finally, the trial judge noted that Mr. Davis was 20 years old at the time he signed the document confessing to theft and that it is presumed that a person of that age would know what he were signing.

LAW AND DISCUSSION:

On appeal, plaintiffs claim the trial judge erred in rendering a Directed Verdict on the issue of fact as to whether the detention occurred on Penney’s | n premises, when the evidence shows the detention occurred more than/4 of a mile away and more than 45 minutes after plaintiffs had left the store. Plaintiffs further argue the trial court erred in finding the defendant had reasonable cause to detain and search plaintiffs.

A Motion for Directed Verdict should be granted when, after considering all evidentiary inferences in the light most favorable to the mover’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Wichser v. Trosclair, 99-1929 (La.App. 4 Cir. 2/28/01), 789 So.2d 24. The standard of review for the appellate court is whether, viewing the evidence submitted, reasonable people could not reach a contrary result. Dugas v. Automotive Cas. Ins. Co., 98-807 (La.App. 5 Cir. 2/10/99), 729 So.2d 25. The propriety of a Directed Verdict must be evaluated in light of the substantive law related to the claims. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, writ denied, 94-0906 (La.6/17/94), 638 So.2d 1094.

Louisiana Code of Criminal Procedure article 215 provides for the detention and arrest of shoplifters as follows:

A. (1) A peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time, not to exceed sixty minutes, unless it is reasonable under the circumstances that the person be detained longer, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The merchant or his employee or agent may also detain such a person for arrest by a peace officer. The detention shall not constitute an arrest.
C. As used in this Article, “reasonable under the circumstances” shall be construed in such a manner so as to include the value of the merchandise in question, the location of the store, the length of time taken for law enforcement personnel to respond, the cooperation of the person detained, and any other relevant | ^circumstances to be considered with respect to the length of time a person is detained.

The official comments under this article state:

If the detention is authorized under the first paragraph, immunity from both criminal and civil liability will naturally follow. If the peace officer, merchant, or employee does not comply with the terms of the first paragraph, the detention will not be authorized and there should be no immunity.

To prevail on a claim of false imprisonment the plaintiff must prove either (1) unreasonable force was used, or (2) no reasonable cause existed for the belief that the suspect had committed a theft of goods, or (3) the detention lasted more than 60 minutes, unless it was reasonable under the circumstances that the suspect be detained longer. Anderson v. Wal-Mart Stores, Inc., 95-1026 (La.App. 5 Cir. 5/15/96), 675 So.2d 1184.

In the case at bar, there was no evidence that unreasonable force was used or that the detention lasted more than 60 minutes. Plaintiffs argue that whether there was reasonable cause for Penney’s loss prevention officers to believe that the Davises had committed a theft of goods is a factual question, which the jury and not the Judge should decide. The evidence presented by plaintiffs indicates that 13 items of clothing were placed in a bag that were not scanned by the cashier and did not appear on the receipt and that plaintiffs left the store with these items. Although plaintiffs claim they presented items to the cashier that were for an even exchange, the testimony presented by plaintiffs on this point was extremely unclear and contradictory. Ms. Jones and Mr. Davis testified that Ms. Jones purchased the items to be returned, while Ms. Davis and Elyana testified that Ms. Davis purchased the items to be returned. Mr. Davis and Elyana Davis were unable to give at trial a number or even a description of the items to be returned. Ms. Jones testified that the items were for Mr. Davis’s mother and father, while Mr. Davis |13testified that the items were for his parents and sister, and Ms. Walker testified the items returned were adult and children’s clothes. Mr. Davis testified that a receipt for the return items was in the bag, while Ms. Walker did not mention a receipt. Elyana had no recollection of what they did with the items, while Mr. Davis and Ms. Walker testified that the items were given to her and placed on the side of the register. The return items were not visible on the videotape during the check out process. The cashier, Ms. Walker, engaged in no exchange like procedure during check out. Moreover, Ms. Bou-dreaux and Mr. Compton testified that they could review the items as they were being rung up and compare this to the videotape of what was being placed in the bags and this review indicated that 23 items were placed in the bag, while only 10 items were scanned. Given this testimony, we find there was reasonable cause for Penney’s loss prevention officers to believe that the Davises had committed a theft of goods and also find that no reasonable jury could have concluded otherwise. Accordingly, we find no error in the trial court’s finding that Penney’s acted reasonably in stopping the Davises and in calling the police when the Davises were unable to explain the presence of items in their shopping bags that did not appear on their receipt. “A store may be absolved from liability, notwithstanding the customer’s innocence.” Durand v. Brookshire Gro cery Co., 98-1738 (La.App. 3 Cir. 6/30/99), 747 So.2d 89, 92.

Plaintiffs also argue the trial court erred in granting a Directed Verdict when there was an issue of fact as to whether the detention occurred on Penney’s premises.

The testimony established that the initial stop of the Davises took place in the shopping mall outside of the Penney’s store. Thus, there is no issue of fact as to where the initial stop took place, but there is an issue of law as to whether this area in the mall can be construed as “premises” for the purpose of C.Cr.P. art. 215. luNumerous cases from the First Circuit have held that C.Cr.P. art. 215 may be read to construe “premises” as including the sidewalk or enclosed shopping mall area outside of the store proper. See Durand v. Brookshire Grocery Co., supra; Thompson v. LeBlanc, 336 So.2d 344 (La.App. 1 Cir.1976), app. not consid. 339 So.2d 26 (La.1976); Simmons v. J.C. Penney Co., 186 So.2d 358 (La.App. 1 Cir. 1966); Durand v. United Dollar Store of Hammond, Inc., 242 So.2d 635 (La.App. 1 Cir.1970). As noted in Thompson v. Le-Blanc, supra at 349, the area in question was part of the shopping center complex where the store was located. Accordingly, we find no error in the trial court’s finding that the area of the mall where the Davises were initially stopped was considered “premises” for the purposes of this statute. Likewise, we find no merit to plaintiffs’ argument that the trial judge erred in granting a Directed Verdict in favor of Penney’s when the initial detention occurred 45 minutes after the Davises left the store. Ms. Boudreaux and Mr. Compton testified that a third loss prevention officer noticed the suspicious activity and notified Mr. Compton. Mr. Compton then reviewed the tape and then contacted Ms. Boudreaux to review the tape, since it was Ms. Boudreaux’s job, in her capacity as supervisor, to determine who to stop. Ms. Boudreaux testified that she reviewed the tape and then determined that the Davises should be questioned. When the Davises could not produce a receipt for the items in their possession and offered no plausible explanation for why they possessed store merchandise without a receipt, they were escorted back to the store and detained there. The temporal element in C.Cr.P. art. 215 refers to the time of detention, not the time between suspected criminal action and detention. Thus, we find that an initial detention, 45 minutes after the Davises left the store, is not unreasonable under these circumstances.

11fiFor the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear its own costs of this appeal.

AFFIRMED.


author: WILLIAMS, J. MOORE, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee v. Mark Damon FORD, Defendant-Appellant.
    No. 41,074-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Dissenting Opinion from Denial of Rehearing May 15, 2006.

      Anita D. McKeithen, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Laura 0. Wingate, Ron C. Stamps, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

hThe defendant, Mark Damon Ford, was charged by bill of information with simple criminal damage to property, a violation of LSA-R.S. 14:56. On the defense’s motion, a mental examination of the defendant was conducted, and a sanity commission was appointed pursuant to LSA-C.Cr.P. art. 644. Following a hearing, the trial court determined that the defendant lacked the mental capacity to proceed to trial in the foreseeable future and that he was a danger to himself or others. Consequently, the trial court ordered that the defendant be committed to East Louisiana Mental Health Systems/Forensic Division for appropriate placement in a facility designed for the mentally disabled. For the following reasons, we affirm.

FACTS

On June 9, 2005, a deputy from the Caddo Parish Sheriffs Office was dispatched to the home of Carl Lewis. Lewis reported to the deputy that he was in his home asleep when he heard a noise coming from his backyard. According to Lewis, he looked out of his window and observed the defendant, his neighbor, cutting his swimming pool pump. He stated that the defendant ran away when he turned on the outside lights. Lewis then went outside and noticed that the lines to his central air conditioning unit had been cut. The deputy went to the defendant’s residence, but was unable to locate him. The defendant was arrested three days later and was thereafter charged by bill of information with simple criminal damage to property, a violation of LSA-R.S. 14:56.

Subsequently, defense counsel filed a motion for the appointment of a sanity commission, alleging, “There is good reason to believe that the | ^defendant does not presently have the mental capacity to understand the proceedings and did not, at the time of the offense, have the ability to discern right from wrong.” The trial court granted the motion and ordered that “a sanity commission consisting of Drs. Dean Robinson and George Seiden” examine the defendant with regard to his current mental capacity, as well as his mental capacity at the time of the alleged offense.

On August 10, 2005, Dr. Seiden examined the defendant and diagnosed him with dementia aqd personality changes secondary to head trauma. Dr. Seiden concluded as follows:

Based on my evaluation, I have concluded that Mr. Mark Damon Ford currently does not have the ability to consult with his attorney with a reasonable degree of rational understanding of the proceedings against him. Specifically, he does not appear to understand the nature of the charges against him, nor appreciate their seriousness. He does not understand what defenses are available to him. He can distinguish a guilty plea from a not guilty plea and understands the consequences of each. He does have an awareness of his legal rights. He can understand the range of possible verdicts and the consequences of conviction. His ability to recall and relate facts pertaining to his actions and whereabouts at certain times is impaired by his dementia. His ability to assist counsel in locating and examining relevant witnesses is impaired. He does not have the ability to maintain a consistent defense. He does not have the ability to listen to the testimony of witnesses and inform his lawyer of distortions or misstatements. He does not have the ability to make simple decisions in response to well-explained alternatives. If necessary to his defense strategy, he is not capable of testifying in his own defense. His mental condition is not likely to deteriorate significantly under the stress of trial, as long as he is maintained on appropriate medication.

|,J)r. Seiden was unable to determine whether the defendant was capable of distinguishing right from wrong at the time of the alleged offense. Dr. Seiden concluded that the defendant was not competent to proceed to trial and that it was unlikely that his dementia and cognitive deficits would improve in the foreseeable future. Dr. Seiden further recommended that the defendant be “maintained in a secure forensic psychiatric facility,” noting that the defendant’s “history demonstrates a repeated tendency to engage in behavior that impinges on the rights of others and could eventually place his own life in danger.”

Dr. Robinson examined the defendant on September 21, 2005 and opined that the defendant had “the ability to assist his attorney in preparation of the defense.” He noted that the defendant knew his attorney’s name and was aware of the general nature of the charges against him. Dr. Robinson further stated that the defendant was aware of the possible pleas, and he possessed the ability to assist in his defense by providing his attorney with information with regard to his whereabouts at the time of the alleged offense and information about possible witnesses. Nevertheless, Dr. Robinson noted:

Although [Ford] consistently denies committing the alleged offense, his lack of ability to give much detail may impair his capacity to give a consistent account. This judgmental defect may also make it harder for him to properly appraise the impact of other witnesses or evidence and advise his attorney of any distortions or misrepresentations.

On November 3, 2005, Dr. Seiden wrote a letter to the trial court in which he stated:

|4My concerns about [the defendant’s] competence to stand trial centered on his ability to attend to the proceedings during the course of a trial, communicate effectively with his attorney during a trial, and to testify in his own defense, especially during cross-examination. It is my opinion, with reasonable medical certainty, that he can understand the consequences of a plea agreement and knowingly consent to one, with the advice of his attorney. He can distinguish between a plea of guilty and not guilty, and is capable of understanding the consequences of consenting to a plea agreement.

During the sanity hearing, Dr. Seiden testified that the defendant’s dementia and the deficits in his memory and judgment are irreversible, and the defendant’s competence is not restorable. With regard to the defendant’s dangerousness to himself and others, Dr. Seiden stated:

[The defendant] had engaged in repetitive behaviors that at least scared other people. There were aggressive acts and apparently he ... would periodically engage in behaviors that threatened other people which ... could cause harm to them if they responded defensively in any way and could cause harm to him if somebody thought he was going to hurt them because of his behaviors and trying to protect themselves....
* * *

At the conclusion of the hearing, the trial court stated:

With respect to Dr. Robinson, who finds the defendant competent to proceed, he also finds there are some defects with respect to the defendant that are similar to those found by Dr. Seiden.
I am in agreement with Dr. Seiden based upon his report as well as his extensive testimony presented here in court today that the defendant is not competent to proceed to trial. It is further the opinion of the Court that the defendant is a danger possibly to himself as well as others.
[RI do not believe that in the near foreseeable future that he is restorable based upon the testimony of doctors presented in this case.

The trial court ordered that the defendant be committed to East Louisiana Mental Health Systems/Forensic Division for appropriate placement in a facility designed for the mentally disabled, pursuant to LSA-C.Cr.P. art. 648(B)(3), infra, and Lockhart v. Armistead, 351 So.2d 496 (La.1977). The trial court further ordered that the defendant be reevaluated every 180 days for the first two years, accompanied by a treating physician’s report regarding the status of mental illness, dangerousness, assessment and treatment recommendations. The defendant now appeals.

DISCUSSION

The defendant contends the evidence presented at the sanity hearing was insufficient to show that he lacked capacity to proceed to trial in the foreseeable future and was a danger to himself and others.

It has long been established that a person whose mental condition is such that he lacks the capacity to understand the nature of the proceedings against him, and is unable to assist counsel, may not be subject to trial. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. LSA-C.Cr.P. art. 641. The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed. LSA-C.Cr.P. art. 643.

| ^Louisiana's statutory scheme for detecting mental incapacity “jealously guards a defendant’s right to a fair trial.” State v. Nomey, 92-1631 (La.1/19/93), 613 So.2d 157, 161 (quoting State v. Rogers, 419 So.2d 840, 843 (La.1982)). In evaluating the legal capacity of the criminally accused, the considerations in determining whether a defendant is fully aware of the nature of the proceedings include:

[Wjhether he understands the nature of the charge and can appreciate its seriousness; whether he understands what defenses are available; whether he can distinguish a guilty plea from a not guilty plea and understand the consequences of each; whether he has an awareness of his legal rights; and whether he understands the range of possible verdicts and the consequences of conviction.

State v. Bennett, 345 So.2d 1129, 1138 (La.1977).

The facts to consider in determining a defendant’s ability to assist in his defense include:

[Wjhether he is able to recall and relate facts pertaining to his actions and whereabouts at certain times; whether he is able to assist counsel in locating and examining relevant witnesses; whether he is able to maintain a consistent defense; whether he is able to listen to the testimony of witnesses and inform his lawyer of any distortions or misstatements; whether he has the ability to make simple decisions in response to well-explained alternatives; whether, if necessary to defense strategy, he is capable of testifying in his own defense; and to what extent, if any, his mental condition is apt to deteriorate under the stress of trial.

Id.

If the court determines that the defendant lacks the mental capacity to proceed, is incapable of standing trial, is a danger to himself or others and is unlikely in the foreseeable future to be capable of standing trial, the court shall order commitment to a designated and medically suitable treatment 17facility. Such a judgement will constitute an order of civil commitment. LSA-C.Cr.P. art. 648(B)(3).

Incapacity to proceed to trial must be proven by a preponderance of the evidence. State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877; State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365. A reviewing court owes the trial court’s determinations as to the defendant’s competency great weight, and the trial court’s ruling thereon will not be disturbed on appeal absent a clear abuse of discretion. Bridgewater, supra; State v. Martin, 2000-0489 (La.9/22/00), 769 So.2d 1168.

In this case, defense counsel moved to have the trial court appoint a sanity commission. As noted above, defense counsel expressed concerns about the defendant’s mental capacity, stating, “There is good reason to believe that [Ford] does not presently have the mental capacity to understand the proceedings....” On the trial court’s order, the defendant was examined by two psychiatrists, both of whom noted mental disease or defects. Although Dr. Robinson opined that the defendant was aware of the “general nature of the charges” against him and was capable of assisting in his defense to some degree, Dr. Robinson observed that the defendant’s “judgmental defect” makes it difficult for him to assist in his defense.

Dr. Seiden opined that the defendánt lacked the ability to assist in his |sdefense with any “reasonable degree of rational understanding of the proceedings against him.” Dr. Seiden specifically noted that the defendant did not appear to understand the nature of the charges against him and observed that the defendant’s ability to recall and relate facts pertaining to his actions and whereabouts at certain times was impaired by his dementia, which is “not likely to improve in the foreseeable future.” Regarding the defendant’s dangerousness, Dr. Seiden noted that the defendant had engaged in acts which were aggressive and threatening to others and could be harmed as a result of his conduct.

Based on the evidence presented, we find that the trial court did not abuse its discretion in concluding that the defendant lacked the mental capacity to proceed to trial in the foreseeable future and he was a danger to himself and others.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

Rehearing denied.

MOORE, J.,

dissents from the denial of application for rehearing and assigns reasons.

_JjThe transcript of the hearing on the applicant’s competency calls into question his continued confinement pursuant to State ex rel. Lockhart v. Armistead, 351 So.2d 496 (La.1977), based on the finding that he was not competent to proceed. One physician who examined him found deficits arising from the previous head trauma, but found him competent to proceed.

The physician who found that Ford lacked competency to proceed incongruously testified that he did have the competency to plead guilty. The doctor based his finding of incompetency strongly on the Bennett factors of inability to undergo cross examination, inability to assist counsel in keeping up with witness testimony, and inability to undergo the rigors of trial. State v. Bennett, 345 So.2d 1129, 1139 (La.1977).

Faced with a contrary finding by another doctor, the trial court should have found Ford competent to proceed. The factors cited, all relating to his ability to undergo trial, can be tested by undergoing trial. If Ford’s condition or abilities lead his attorney, the district attorney or the court to have reasonable ground to question his competency to proceed, a motion to that effect can be made at any time. La. C. Cr. P. arts. 642, 775 A(4).

I would grant the rehearing, vacate the trial court’s determination that Ford is incompetent to proceed, and remand to the trial court for further proceedings. I respectfully dissent from the denial of rehearing.

      . According to Dr. Seiden, the defendant had been hit in the head with a baseball bat at the age of eight. Additionally, the defendant was involved in a motorcycle accident when he was twelve years old and was in a coma for an extended period of time. The defendant also sustained a head injury in an automobile accident in 2003.

      . LSA-C.Cr.P. art. 648(A) provides that the incapacity to stand trial must be proven by clear and convincing evidence. However, in Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), the United States Supreme Court struck down an Oklahoma statute which required proof of incompetence to be proven by clear and convincing evidence. The Court held that the statute violated due process by allowing the trial of a defendant who was more likely than not incompetent. Citing Cooper, the Louisiana Supreme Court has held that incapacity to proceed to trial must be proven by a preponderance of the evidence. State v. Bridgewater, 2000-1529 (La.1/15/02), 823 So.2d 877; State v. Frank, 96-1136 (La.10/4/96), 679 So.2d 1365.


author: CHARLES R. JONES, Judge.

text:
    Calvena WINSTON v. David MILLAUD.
    No. 2005-CA-0338.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.

      Gary S. Brown, Gary S. Brown, LLC, New Orleans, Counsel for Plaintiff/Appellant.
    Jerome J. Pellerin, New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

liThe Appellant, Calvena Winston, appeals the judgment of the district court staying the enforcement of a Tennessee judgment ordering the Appellee, David Millaud, to pay $140,200.00 in past due child support and $2,065.40 per month in ongoing child support, and thus refusing to give the Tennessee judgment full faith and credit under Louisiana law. For the following reasons, we AFFIRM.

On November 18, 1991, the Juvenile Court of Davidson County, Tennessee (hereinafter “Tennessee Juvenile Court”) entered an order declaring David Millaud the father of the minor child, David Winston, and reserving the setting of child support. At the time this order was entered, Mr. Millaud, Ms. Winston and the minor child were all residents of the State of Tennessee.

Two years later, Mr. Millaud moved from Tennessee and went to reside in the State of California. Subsequently, Ms. Winston and the minor child moved from Tennessee and also went to reside in the State of California. The relationship between the parties ended, and while all parties still resided in the State of California, Ms. Winston subsequently filed a Petition to Set Child Support (hereinafter “Petition”) in the Tennessee Juvenile Court. According to the record, | athe Petition was served via Tennessee’s General Long Arm Statute on Mr. Millaud at his home in California.

The record also reflects that Mr. Millaud then filed an answer into the record of the proceedings before the Tennessee Juvenile Court objecting to the court’s subject matter jurisdiction, as well as to its personal jurisdiction over him. We note that Mr. Millaud also acknowledged in his answer that he was “legally responsible for supporting my child.” He also stated in his answer that he was in the process of filing a proceeding in the State of California to set child support, custody, and visitation. The record reflects that Mr. Millaud asked the Tennessee court to give him time to file a similar proceeding in the State of California, arguing that the California court had jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction Law (hereinafter “UCCJA”). It does not appear from the record that Mr. Millaud ever filed such proceedings.

Approximately one year after the Petition was filed, Mr. Millaud moved from California and took up residence in the State of Louisiana. One year later, Ms. Winston and the minor child moved from California and took up residence in the State of Georgia. Subsequently, Ms. Winston caused her previously filed Petition to be re-set for hearing on the docket of the Tennessee Juvenile Court. The matter was re-set for April 19, 2002.

Mr. Millaud concedes in his brief that he was notified of Ms. Winston’s Motion to Re-Set her Petition for hearing via certified mail at his residence in the State of Louisiana. He further acknowledges in his brief that he engaged ^Tennessee counsel, who while not submitting to personal jurisdiction in Tennessee again filed a response objecting to both the subject matter and personal jurisdiction of the Tennessee Juvenile Court. Apparently, the April 19, 2002, hearing date was postponed and eventually re-set for November 22, 2002. Mr. Millaud argues that the Case Disposition Sheet of the Tennessee Juvenile Court indicates that the hearing set for November 22, 2002, was also continued to December 20, 2002, and that Ms. Winston’s attorney was to draft an order to that effect, which was to be served upon Mr. Millaud’s Tennessee counsel. Mr. Millaud’s counsel states that he never received any such notice.

The record shows that on December 16, 2002, the Tennessee Juvenile Court entered an order stating that the matter had been heard on November 22, 2002, and that after considering the affidavit of Ms. Winston, the Statement of Ms. Winston’s attorney, the response filed by Mr. Mil-laud, and the record as a whole, the court found that the Tennessee Juvenile Court had jurisdiction over the matter; thus, the Petition to Set Child Support was set for December 20, 2002. The court apparently rejected Mr. Millaud’s argument that the Tennessee court lacked jurisdiction to hear the matter despite the absence of Mr. Mil-laud or his counsel.

The record reflects that the trial on child support was held on December 20, 2002, in the Tennessee Juvenile Court. The Tennessee Juvenile Court found in favor of Ms. Winston and accordingly entered judgment ordering Mr. Millaud to pay Ms. Winston ongoing child support in the amount of $2,065.40 per month beginning on December 27, 2002, as well as past due arrearages in the amount of $140,200.00.

As evidenced by the Affidavit of the Clerk of Court for the Tennessee Juvenile Court, there exists no record of the testimony taken and/or evidence 14received in support of the order rendered and/or in opposition to Mr. Millaud’s objection to personal and subject matter jurisdiction.

Due to gaps in the record, it is unclear how the child support matter was set for December 20, 2002, who was notified of the trial or the mode of the notification. Accordingly, we find that the Tennessee Juvenile Court lacked personal jurisdiction over Mr. Millaud because the record is void of any evidence that he had been properly notified of the December 20, 2002, hearing, although the record does show that a copy of the court’s judgment was mailed to Mr. Millaud’s counsel on December 24, 2002. The Tennessee Juvenile Court judgment became and is now a final judgment.

It appears from the record that Mr. Millaud did not comply with the Tennessee judgment; thus, Ms. Winston filed a petition on February 13, 2004, in Orleans Parish, the present domicile of Mr. Millaud, seeking that the Tennessee judgment be given full faith and credit by the Civil District Court of Orleans Parish, State of Louisiana. Mr. Millaud then filed an action to stay the enforcement of the Tennessee judgment that was granted by the district court on September 7, 2004. This timely appeal follows.

Ms. Winston asserts that the district court erred in allowing the collateral attack on, and not giving full faith and credit to, the Tennessee Juvenile Court judgment that made past due and continued child support amounts executory. Moreover, Ms. Winston contends that the district court erred in finding that Mr. Millaud met his burden of proof that the Tennessee Juvenile Court lacked jurisdiction. We disagree and find that the district court did not err in failing to give full and credit to the Tennessee Juvenile Court judgment because the court lacked subject matter jurisdiction over this matter. We also find that there is | ^insufficient evidence that the Tennessee court had personal jurisdiction over Mr. Millaud.

At issue is whether the evidence produced established that Tennessee courts had personal jurisdiction over Mr. Millaud and subject matter jurisdiction over the matter. While the district court’s factual findings are subject to the manifest error standard of appellate review, jurisdiction itself is a question of law subject to de novo review. Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd., 96-2703 (La.App. 4 Cir. 10/3/97), 700 So.2d 1135, 1137, citing Salley v. Colonial Marine Industries, Inc., 95-2215 (La.App. 4 Cir. 9/11/96), 680 So.2d 1242. Mr. Mil-laud argues that the court lacked personal jurisdiction over him and subject matter jurisdiction over the issue; thus, we find that there are questions of law and will review de novo.

On legal issues, the appellate court gives no special weight to the findings of the district court, but exercises its constitutional duty to review questions of lay? and renders judgment on the record. Cacamo v. Liberty Mutual Fire Ins. Co., 2004-0074 (La.App. 4 Cir. 9/29/04), 885 So.2d 1248, 1255, citing Gonzales v. Xerox. Corp., 320 So.2d 163, 165 (La.1975). Thus, in such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Andrews v. Dufour, 2003-0736 (La.App. 4 Cir. 6/2/04), 882 So.2d 15, 21; See also, O’Niell v. Louisiana Power & Light Co., 558 So.2d 1235, 1238 (La.App. 1 Cir.1990); Conoco, Inc. v. Tenneco, Inc., By and Through Tennessee Gas Pipeline Co., 524 So.2d 1305 (La.App. 3 Cir.1988), writ denied, 525 So.2d 1048 (La.1988).

Our first inquiry is whether Mr. Millaud is legally entitled to collaterally attack the judgment of the Tennessee Juvenile Court on the basis of jurisdiction.

Ms. Winston relies on Essex Crane Rental Corp. v. D & L Machine Works, 93-1656 (La.App. 3 Cir. 10/5/94), 643 So.2d 913, writ denied, 94-2742 (La.1/6/95), 648 So.2d 932, to support her position that Mr. Millaud cannot collaterally attack jurisdiction in the district court. In Essex, a Louisiana defendant was sued in Texas and filed pleadings in the Texas court that placed the question of personal jurisdiction directly at issue. Essex, 643 So.2d at 915. The defendant was properly notified and given the opportunity by the Texas court to litigate the jurisdiction issue but failed to appear for the trial on that issue. A default judgment was then taken against him. This Court concluded that under those circumstances, he was not entitled to collaterally attack the Texas judgment on jurisdictional grounds. Id.

Unlike in Essex, Mr. Millaud raised the issue of jurisdiction in Tennessee, but was never notified and given an opportunity by the Tennessee court to litigate the jurisdictional issues. Thus, we find Essex to be distinguishable from the case at bar.

Ms. Winston also cites Allenberg Cotton Company, Inc. v. Stacy, 384 So.2d 514 (La.App. 2 Cir.1980), where the court found that it had jurisdiction over an out-of-state defendant. However, unlike in the case sub judice, the defendant in AUenberg had the opportunity to litigate the issue of personal jurisdiction in the foreign court. Accordingly, we also find that this case is distinguishable from the case before us.

17Last, Ms. Winston relies on Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966), in which the Supreme Court found that, when a person waives service of process and enters a general appearance before a foreign court, this is “sufficient to foreclose the jurisdictional question of res judicata,” rendering the foreign judgment unassailable. In Boudreaux, because there was consent to jurisdiction of the foreign court, there was no need for the foreign court to make a specific finding of personal jurisdiction. Unlike in Boudreaux, we find that Mr. Millaud did not consent to jurisdiction in Tennessee, did not waive service of process and did not enter a general appearance before the Tennessee Juvenile Court when he objected to its jurisdiction. Thus, we also find that Boudreaux is inapplicable to the facts at hand.

We find that collateral attack is permitted because the Tennessee Juvenile Court exceeded its power and had no jurisdiction. In determining whether a foreign court had subject matter and/or personal jurisdiction, the law of the forum state that rendered the judgment is the applicable law for resolution of this issue. Holden v. Holden, 374 So.2d 749, 751 (La.App. 3 Cir. 8/23/79); Cantwell Machinery v. Ballard Agency, Inc., 583 So.2d 73 (La.App. 2 Cir. 1991). Thus, we must determine if Tennessee law provides adequate jurisdictional grounds for the decree.

The Tennessee Supreme Court in Brown v. Brown, 198 Tenn. 600, 281 S.W.2d 492, 499 (1955), explained:

While it is well settled that a judgment cannot be questioned collaterally in the exercise of jurisdiction, the rule is equally well established that a judgment may be attacked in a collateral proceeding for error in assuming jurisdiction... One form of usurpation of power on the part of a court in rendering a judgment is where it attempts to disregard limitations prescribed by law ^restricting jurisdiction. Where a court is authorized by statute to entertain jurisdiction in a particular case only, and it undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, in so doing it will not acquire jurisdiction and its judgment will be a nullity and subject to collateral attack. [Emphasis added]

Under Tennessee law, even where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, if the court undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, the parties can still collaterally attack the judgment over the subject matter. To wit, under Tennessee law, should the Tennessee Juvenile Court enter a judgment beyond its powers and/or have usurped power where none existed, the parties can still collaterally attack the judgment for lack of jurisdiction over the subject matter. Thus, we now turn to whether or not the result of the collateral attack was proper.

Louisiana is required to give full faith and credit to judgments of courts in sister states unless the foreign forum lacked jurisdiction over the litigants or over the subject matter involved in the controversy. U.S.C.A. Const. Art. 4, § 1; LSA-C.C.P. Art. 1; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149 (1943); E & L Lumber Co. v. Ashy Enters., Inc., 594 So.2d 948, 949 (La.App. 3 Cir.1992). This rule is so well established that in a suit for the recognition of a foreign judgment, the only issue of the foreign proceeding with which a Louisiana court may concern itself is the question of the foreign court’s jurisdiction over the parties or the subject matter involved within that action. Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir. 8/23/79); Rice v. Kliebert, 330 So.2d 374 (La.App. 4 Cir.1976); See also, Abernathy v. Chambers, 482 S.W.2d 129, 132 (Tenn.1972); Harris v. Poole, 688 S.W.2d 78, 81 (Tenn.Ct.App.1984). Although the jurisdiction of a court rendering a judgment is open to judicial inquiry when enforcement of that judgment is sought within this State, there is a general presumption that the decree is valid and the burden of undermining such a judgment rests heavily upon the assailant. Id at 751; Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946). The burden to establish that the court of the rendering state was without jurisdiction can only be discharged by clear and positive proof. Holden v. Holden, 374 So.2d 749 (La.App. 3 Cir. 8/23/79), citing Turpin v. Turpin, 175 So.2d 357 (La.App. 2 Cir.1965). We find that there is clear and positive proof that the Tennessee Juvenile Court lacked personal and subject jurisdiction in this matter.

Tennessee courts derive their subject matter jurisdiction from the Constitution of Tennessee or from legislative act. Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.1977); Brown v. Brown, 198 Tenn. 600, 618-19, 281 S.W.2d 492, 501 (1955). Moreover, Tennessee courts cannot exercise jurisdictional powers that have not been conferred directly on them expressly or by necessary implication. See, Hicks v. Hicks, No. 01A01-9309-CH-00417, 1994 WL 108896, at *2 (Tenn.Ct.App.Mar. 30, 1994) (No Tenn. R.App. P. 11 application filed).

A court’s subject matter jurisdiction does not depend on the conduct or agreement of the parties. See, Shelby County v. City of Memphis, 211 Tenn. 410, 413, 365 S.W.2d 291, 292 (1963). Moreover, the parties cannot confer subject matter jurisdiction on a trial or an appellate court by appearance, plea, consent, silence, or waiver. See, Caton v. Pic-Walsh Freight Co., 211 Tenn. 334, 338, 364 S.W.2d 931, 933 (1963); Brown v. Brown, 198 Tenn. at 618-19, 281 S.W.2d at 501.

h (Judgments or orders entered by courts without subject matter jurisdiction are void. Id. The lack of subject matter jurisdiction is so fundamental that it requires dismissal whenever it is raised and demonstrated. County of Shelby v. City of Memphis, 211 Tenn. 410, 365 S.W.2d 291, 292 (1963); See also, Tenn. R.Civ.P. 60.02. Thus, we find that any such orders rendered by a Tennessee court lacking subject matter jurisdiction are a nullity and may be collaterally attacked. Id.

A foreign judgment filed pursuant to Tenn.Code Ann. § 26-6-101 et seq., the Uniform Enforcement of Foreign Judgments Act (hereinafter “UEFJA”) “has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a court of record in this state and may be enforced or satisfied in a like manner.” TenmCode Ann. § 26-6-104(c).

Under Tennessee law, the grounds and procedures for vacating, reopening, or setting aside a judgment are those set out in Tenn. R. Civ. P. 60.02. Remington Investments, Inc. v. Obenauf, 1 S.W.3d 666, 668 (Tenn.Ct.App.1999); Bailey v. Sneed, 49 S.W.3d 327, 329 (Tenn.Ct.App.2001); Coastcom, Inc. v. Cruzen, 981 S.W.2d 179, 181 (Tenn. Ct.App.1998); Biogen Distributors, Inc. v. Tanner, 842 S.W.2d 253, 256 (Tenn.Ct.App.1992).

Rule 60.02 of the Tennessee Rules of Civil Procedure provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party .. .from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made l^within a reasonable time, and for reasons (1) and (2) not more than one year after the judgment, order or proceeding was entered or taken.

The standard in Tennessee for determining whether a judgment is void is whether a court had general jurisdiction of the subject matter, whether the judgment was wholly outside the pleadings, and whether the court had jurisdiction of the parties. Gentry v. Gentry, 924 S.W.2d 678, 680-81 (Tenn.1996).

The party seeking relief under Rule 60.02 has the burden of showing grounds therefore and entitlement to relief. Spruce v. Spruce, 2 S.W.3d 192, 194 (Tenn.Ct.App.1999); Howard v. Howard, 991 S.W.2d 251, 255 (Tenn.Ct.App.1999).

As in Louisiana, the movant must substantiate entitlement to the request by clear and convincing evidence. Davidson v. Davidson, 916 S.W.2d 918, 923 (Tenn.Ct.App.1995); Duncan v. Duncan, 789 S.W.2d 557, 563 (Tenn.Ct.App.1990). We find that Mr. Millaud has met his burden of proof with respect to the judgment’s nullity.

When a foreign judgment is attacked, courts in the state of Tennessee should first examine whether the issue raised in the attack has been fully and fairly litigated in the court rendering the judgment because “a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court that rendered the original judgment.” Abernathy v. Chambers, 482 S.W.2d 129, 132, quoting Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963); Graybar Electric Co., 186 Tenn. at 451, 211 S.W.2d at 904-05.

We agree that under Louisiana law, if a defendant raises the jurisdiction issue in the foreign forum, is given the opportunity to pursue it, and fails to do so, h she is precluded from collaterally attacking jurisdiction in the future. See Essex Crane Rental Corp. v. D & L Mach. Works, 93-1656 (La.App. 3 Cir. 10/5/94, 643 So.2d 913), writ denied, 94-2742 (La.1/6/95), 648 So.2d 932. Additionally, where a party enters an appearance and has the opportunity to litigate the jurisdiction question, the Full Faith and Credit Clause applies. See Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966). However, we find that although Mr. Millaud raised the issues of personal and subject matter jurisdiction in the Tennessee Juvenile Court, he was never notified and thus given an opportunity to properly litigate these issues. Moreover, we find that Tennessee lacked the requisite connection to the parties to establish personal and subject matter jurisdiction.

In its written reasons for judgment, the Louisiana district court found “there is no evidence of service of notice upon the defendant or his counsel for the hearing set for December 20, 2002, and neither party nor the minor child resided in the state of Tennessee at any time the request for child support was scheduled, rescheduled, or rendered or signed.” The district court ruled that the Tennessee Juvenile Court was without “jurisdiction over David Mil-laud, which is absolutely essential to render a decision.” Thus, the district court declared that the “judgment is not a valid judgment and is not entitled to full faith and credit by Louisiana courts.” We agree.

Furthermore, the Full Faith and Credit Child Support Orders Act (hereinafter “FFCCSOA”) was signed into law in 1994. See Pub.L. No. 103-383 § 3(a) (1994) (codified at 28 U.S.C. § 1738B). The FFCCSOA is, pursuant to the Supremacy Clause of the United States Constitution, binding on all states and supersedes any inconsistent provision of a uniform state law. U.S. Const, art. VI, 1 iscl. 2; See Kelly v. Otte, 123 N.C.App. 585, 589, 474 S.E.2d 131, 134 (1996). The FFCCSOA establishes the standards by which the states can determine their jurisdiction to issue their own support orders and the effect to be given to support orders from other states. The FFCCSOA defines “child support” to mean “payment of money, continuing support, or arrearages or the provision of a benefit (including the payment of health insurance, child care, and educational expenses) for the support of the child.”

A “child support order” — (A) means a judgment, decree, or order of a court requiring the payment of child support in periodic amounts or in a lump sum; and (B) includes — (i) a permanent or temporary order; and (ii) an initial order or a modification of an order.

The Tennessee Juvenile Court established Mr. Millaud’s duty of support on November 18, 1991. As the Tennessee Juvenile Court had subject matter jurisdiction and personal jurisdiction over the parties because each were residents of the State of Tennessee and gave reasonable notice to the parties, the order entered on November 18, 1991, appears to have been a child support order “made consistently” with the FFCCSOA.

Pursuant to the FFCCSOA, a Tennessee court entering a support order “made consistently” with the FFCCSOA “has continuing, exclusive jurisdiction over the order if the State is the child’s State or residence of any individual contestant.” Commencing on November 19, 1991, the Tennessee Juvenile Court had continuing exclusive jurisdiction over its order establishing Mr. Millaud’s duty of support.

In 1993, Mr. Millaud moved from Tennessee 1 uand went to reside in the State of California. In 1995, Ms. Winston and the minor child moved from Tennessee and went to reside in the State of California. We find it significant that on the date the Petition to Set Child Support was filed in Tennessee, all parties were and/or had for at least two years been residents of the State of California. Through her Petition, Ms. Winston sought to modify the prior child support order.

A subsequent order modifies a prior child support order if it changes or otherwise affects, directly, or indirectly, the amount, scope, or duration of a parent’s child support obligation as determined under the prior order. See 28 U.S.Code § 1738B (b). “A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.” See U.S.Code § 1738B (d). The continuing, exclusive jurisdiction aspect of the FFCCOSA comprehends that before an order “made consistently” with the Act may be modified, at the time such relief is sought, the forum state must be the residence of at least one of the persons most directly affected. Because all parties concede that no one was a resident of the State of Tennessee at the time of the filing of the proceeding to set child support or anytime thereafter, we find that the State of Tennessee did not have exclusive continuing jurisdiction. Thus, the Tennessee Juvenile Court lacked statutory authority to exercise its subject matter jurisdiction to enter an order establishing the amount, scope, or duration of Mr. Millaud’s child support obligation having lost its continuing exclusive jurisdiction to modify its own order of November 18,1991.

11BAdditionally, subsection (i) of the FFCCSOA provides that where:

There is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification. See 28 U.S.Code § 1738B (i).

We also note that the Uniform Child Custody Jurisdiction Law, La. R.S. 13:1702 provides in pertinent part:

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships...

|1fi“Home state” is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months.” La. R.S. 13:1701(5).

While a child’s “home state” arguably provides a strong basis for jurisdiction, courts have acknowledged that jurisdiction may exist concurrently in more than one state under an alternative basis. In Revere v. Revere, 389 So.2d 1277 (La.1980), the court addressed the “significant connection standard” under La. R.S. 13:1702(A)(2). The court stated that, “this standard provides a best interest basis for jurisdiction when Louisiana has a legitimate concern as to custody and has superior access to evidence concerning the child’s care, training, well being, and personal relationships.” Revere, supra, at 1279, 1280. The court further noted that a state, which claims jurisdiction on the basis of significant connections, need not defer to the home state in every ease. Id.

We note that in deciding the most favorable jurisdiction to resolve issues of custody, the UCCJA has primarily focused on the strength of the connection between the minor child and the state. Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75, 81. However, Louisiana courts have generally held that the limitations imposed by the UCCJA are equivalent to declarations of subject matter jurisdiction necessitating that the jurisdictional requirements of the UCCJA be met at the time the custody request is filed. Id. Therefore, in order for a Tennessee court to assume jurisdiction in matters of child custody, it must be demonstrated that Tennessee has the strongest connections to the child at the time of the filing. We find this reasoning applicable to the issue of child support modifications as well.

|17In the present case, the fact that California was the child’s “home state” at the time Ms. Winston filed for child support and past arrearages is not in dispute. La. R.S. 13:1701(5). While we recognize that the court in California would have jurisdiction under La. R.S. 13:1702(A)(1), it is necessary to determine whether Tennessee has significant connections to the child sufficient to establish jurisdiction.

We find that not only did the State of Tennessee not have “significant connections” to the minor child, but that its connections to the child are tenuous at best. All parties concede that neither parent, nor the minor child has lived in the State of Tennessee since approximately 1995. The record reflects that Ms. Winston’s Petition was filed on December 17, 1997, while all parties resided in the State of California. Accordingly, we also find that the State of Tennessee lacked the requisite connections to the minor child as required by the UCCJA.

DECREE

The district court did not err in denying Ms. Winston’s Petition to Make the Foreign Judgment Executory, and thus staying the matter. Therefore, the district court’s judgment is AFFIRMED.

AFFIRMED.

      . The Uniform Child Custody Jurisdiction Law, La. R.S. 13:1700, et seq. was enacted to avoid jurisdictional competition and instead to promote interstate cooperation, assistance, and the exchange of information in child custody decisions and decrees. Martin v. Martin, 545 So.2d 666, 668 (La.App. 5 Cir.1989).

      . Personal jurisdiction refers to "the legal power and authority of a court to render a personal judgment against a parly to an action or proceeding.” La.Code Civ. Proc. Art. 6.

      . Subject matter jurisdiction is defined by La. Code Civ. Proc. Art. 2 as "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.”