Myranda Adkins v. City of Natchitoches

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-491

MYRANDA ADKINS

VERSUS

CITY OF NATCHITOCHES, ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - # 2
PARISH OF NATCHITOCHES, NO. 13-02170
JAMES L. BRADDOCK, WORKERS’ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

AFFIRMED AS AMENDED.

John C. Guillet
Corkern, Crews & Gillet, LLC
P. O. Box 1036
Natchitoches, LA 71458-1036
Telephone: (318) 352-2302
COUNSEL FOR:
Defendant/Appellee – City of Natchitoches

Richard Bray Williams
Williams Family Law Firm, L.L.C.
P. O. Box 15
Natchitoches, LA 71458-0015
Telephone: (318) 352-6695
COUNSEL FOR:
Plaintiff/Appellant - Myranda Adkins

THIBODEAUX, Chief Judge.

Myranda Adkins appeals a judgment of the Office of Workers’

Compensation (“OWC”) granting the exception of subject matter jurisdiction filed

by the City of Natchitoches (“City”), the alleged statutory employer of Ms. Adkins,

and revoking her authority to amend her original claim to add the City after

rendition of final judgment against her direct employer, Natchitoches Tour

Company, LLC (“Tour Company”). We affirm.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting the exception of
subject matter jurisdiction filed by the City of
Natchitoches;

(2) whether the trial court manifestly erred in revoking its
previous order allowing Ms. Adkins to amend her
petition; and

(3) whether the dismissal of the amended 1008 should have
been without prejudice.

II.

FACTS AND PROCEDURAL HISTORY

While working for the Tour Company in 2012, the claimant, Myranda

Adkins, fell from a horse-drawn carriage, struck her head, and was run over by the

wheels of the carriage. She filed a disputed claim with the OWC. The defendant

Tour Company did not answer. Ms. Adkins subsequently obtained a default

judgment against the uninsured Tour Company, and the OWC awarded her

approximately nineteen weeks of temporary total disability benefits, eighty-two

weeks of benefits for permanent scarring, a $4,000.00 penalty for not paying

disability benefits, $45,884.38 in medical benefits, a $5,506.13 penalty for failure

to pay medical benefits, and $12,000.00 in attorney fees. After final judgment was

rendered in her favor against the Tour Company, Ms. Adkins moved to amend her

claim to add the City as a defendant based upon an alleged statutory employer

relationship. The motion was granted, and the City filed an exception of subject

matter jurisdiction. Following a hearing, the OWC granted the City’s exception

and revoked the previously granted authority to amend the petition. Ms. Adkins

filed this appeal.

III.

STANDARD OF REVIEW

Whether a court has subject matter jurisdiction raises a question of

law which is reviewed de novo. Gandy v. Key Realty, L.L.C., 13-712 (La.App. 3

Cir. 12/11/13), 128 So.3d 678; Chavers v. Bright Truck Leasing, 06-1011 (La.App.

3 Cir. 12/6/06), 945 So.2d 838, writ denied, 07-304 (La. 4/5/07), 954 So.2d 141.

IV.

LAW AND DISCUSSION

Ms. Adkins contends that the trial court legally erred in granting the

City’s exception of subject matter jurisdiction and in finding that her claim could

not be amended to add the City as a defendant after the matter had been tried and

final judgment had been rendered against the Tour Company. She specifically

asserts that the court’s reliance upon Booth v. Allstate Ins. Co., 466 So.2d 703

(La.App. 4 Cir. 1985), was error because Booth was not a workers’ compensation

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case and its application of La.Code Civ.P. art. 1151 had no bearing on the present

case.

In Booth, the plaintiff sought to file a supplemental petition to add her

uninsured motorist carrier as an additional defendant after the case had been tried

and judgment had been rendered against the tortfeasor and its insurer. Revoking

its prior order allowing the amendment, the Booth court held that Article 1151

governing the amendment of pleadings could not be construed to authorize the

filing of an amendment to a petition which had been fully disposed of by the court

via final judgment. See also Johnson v. Walgreen Louisiana Co., 163 So.2d 830

(La.App. 4 Cir. 1964); Templet v. Johns, 417 So.2d 433 (La.App. 1 Cir.), writ

denied, 420 So.2d 981 (La.1982); Loupe v. Circle, Inc., 545 So.2d 694 (La.App. 5

Cir. 1989).

We disagree that these cases have no bearing, as they address the

general rule that once judgment is rendered, a party’s recourse is not to amend but

to seek a new trial or appeal from an adverse judgment. Once final judgment has

been rendered, there generally can be no amended petition as there is no longer a

petition before the court to amend. State Through La. Riverboat Gaming Com’n v.

La. State Police Riverboat Gaming Enforce. Div., 97-0167 (La.App. 1 Cir.

6/20/97), 696 So.2d 645, writ denied, 97-1932 (La. 11/7/97), 703 So.2d 1269.

However, the trial court can retain subject matter jurisdiction to grant supplemental

relief after judgment if such relief is specifically allowed by statute. See id.

(applied La.Code Civ.P. art. 1878 to permit a party to seek a refund of fees after a

declaratory judgment ordered that gaming rules were invalid).

Here, Ms. Adkins argues that La.R.S. 23:1310.8 is the controlling

statute but asserts that the trial court erred in applying the limiting language of

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La.R.S. 23:1310.8(B) instead of allowing the amendment, which she refers to as a

modification, under La.R.S. 23:1310.8(A)(1). We note that Ms. Adkins did not file

a petition to modify a judgment; she seeks to add an entirely new defendant and

has indicated to this court that she will retry her case and again prove her injuries.

Louisiana Revised Statutes 23:1310.8(A)(1) and (B), which address the continuing

jurisdiction of the OWC, provide as follows:

A. (1) The power and jurisdiction of the workers’
compensation judge over each case shall be continuing
and he may, upon application by a party and after a
contradictory hearing, make such modifications or
changes with respect to former findings or orders relating
thereto if, in his opinion, it may be justified, including the
right to require physical examinations as provided for in
R.S. 23:1123; however, upon petition filed by the
employer or insurance carrier and the injured employee
or other person entitled to compensation under the
Worker’s Compensation Act, a workers’ compensation
judge shall have jurisdiction to consider the proposition
of whether or not a final settlement may be had between
the parties presenting such petition, subject to the
provisions of law relating to settlements in workers
compensation cases.

....

B. Upon the motion 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.

....

Because Ms. Adkins is not asserting a change in her condition under

section (B), she asserts that the broader language of section (A)(1) perpetuates the

OWC’s jurisdiction to allow the addition of the City to the disposed of suit against

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the Tour Company. She cites our decision in Rivers v. Bo Ezernack Hauling

Contractor, LLC, 09-1495 (La.App. 3 Cir. 5/5/10), 37 So.3d 1088, for providing a

supportive distinction between the two sections. However, the cited language is

only partially quoted, and the case as a whole does not support Ms. Adkins’

position.

More specifically, in Rivers, the claimant sought the approval of

cervical surgery after a judgment finding in favor of the claimant and awarding

benefits against the employer. The defendant filed an exception of lis pendens.

We reversed, discussing La.R.S. 23:1310.8 in the context of lis pendens and res

judicata. A panel of this court stated that section (A) provides the OWC with

continuing jurisdiction “to modify former findings or orders regarding entitlement

to compensation.” Rivers, 37 So.3d at 1091 (emphasis added). Such is not the

case here, as the claimant is seeking to add an entirely new defendant to a suit

resolved in her favor by final judgment. Rivers also involved a judgment in favor

of the claimant, but in Rivers we indicated that the statute, La.R.S. 23:1010.8, did

not address a judgment awarding benefits. Ms. Adkins quotes only part of what

we said in Rivers, leaving out the last sentence:

The workers’ compensation statute addresses this
difference, providing the workers’ compensation judge
with continuing “power and jurisdiction” to modify
former findings or orders regarding entitlement to
compensation, La.R.S. 23:1310.8(A), and to modify prior
compensation awards by “ending, diminishing, or
increasing” such awards when “a change in conditions”
is established. La.R.S. 23:1310.8(B). Importantly, this
statute provides that “[a] judgment denying benefits is
res judicata after the claimant has exhausted his rights of
appeal,” but it does not address a judgment awarding
benefits. La.R.S. 23:1310.8(E).

Rivers, 37 So.3d at 1091 (emphasis added).

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In Rivers, we found that a post-judgment claim for approval of a

particular surgery did not fall squarely within the parameters of La.R.S. 23:1310.8,

but we believed that the intent and purpose of the statute were applicable to the

facts in Rivers because that case involved ongoing medical benefits. There, the

judgment sought to be modified ordered the defendant to authorize and accept

financial responsibility for the claimant’s cervical injuries and her treatment by her

surgeon of choice, Dr. Nunley. Thus, when Dr. Nunley subsequently

recommended cervical surgery, we found that the issues raised by the new request

for “surgery” were not identical to the general award of “treatment” by Dr. Nunley

in the original judgment. We reversed the OWC’s granting of the defendant’s lis

pendens exception, and we remanded for a consideration of the claimant’s post-

judgment request for surgery. Unfortunately for Ms. Adkins, Rivers does not

support Ms. Adkins’ request to add a new defendant to a disposed of suit against

another party.

Ms. Adkins next points to a fourth circuit case we cited in Rivers, but

she again fails to demonstrate support for her position. Brown v. Rouse Co., 97-

1243 (La.App. 4 Cir. 1/14/98), 706 So.2d 547, writ denied, 98-419 (La. 5/1/98),

805 So.2d 191, found that the OWC could retain modification jurisdiction under

La.R.S. 23:1310.8(A)(1) where no formal award of benefits by court decree existed

but where ongoing medical benefits were being paid and had not been terminated

by judgment; it explained that La.R.S. 23:1310.8(B) pertains to changes in the

amount of benefits. Brown further stated the court’s opinion that “the continuing

jurisdiction described in LSA-R.S. 23:1310 A(1) refers to the power of the hearing

officer to alter the nature of benefits awarded, e.g., changes from temporary total

disability to supplemental earnings benefits.” Brown, 706 So.2d at 550.

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In Brown, the claimant filed a motion to modify a judgment of the

OWC that denied disability benefits. The claimant’s motion to modify was denied.

The fourth circuit found no new issues that had not been previously litigated and

found no change in condition or circumstance that would warrant reopening the

judgment. The court articulated:

[T]he claimant does not contend that her physical
condition as a result of the accident is any worse or
different now than it was at the time her claim for
disability benefits was denied. . . . Her argument is based
entirely on the proposition that she now has better proof
of the disability she failed to prove initially. Neither
LSA-R.S. 23:1310 A(1) nor 23:1310 B is intended to
allow the parties to relitigate what has already been
litigated under the guise of continuing jurisdiction or the
power of modification. Claimant’s theory of the case
would provide her with limitless bites at the apple in
hopes of eventually finding a more sympathetic audience.
Claimant must either advance an issue in an open case
that has not previously been litigated or show a change in
condition or a change of circumstances before she can
even approach the threshold of continuing jurisdiction or
the power of modification. LSA-R.S. 23:1310 A(1) and
23:1310 B apply to new issues or circumstances, not new
evidence. Claimant has shown no new issues and no new
circumstances.

Brown, 706 So.2d at 551 (footnote omitted).

Both Rivers and Brown involved a post-judgment request for medical

determinations. Rivers allowed the modification because of the new issue of

surgery, and Brown denied the modification because no new issues were identified.

Neither addressed the addition of a party defendant after a final judgment against a

different party had been rendered. Ms. Adkins does not cite a case which supports

continuing jurisdiction under La.R.S. 23:1310.8 for the post-judgment addition of a

party, nor have we located one. We, therefore, find that the OWC did not err in

granting the City’s exception of subject matter jurisdiction.

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With regard to Ms. Adkins’ complaint that the OWC erroneously

revoked its leave to amend sua sponte, we disagree. The trial court revoked its

prior order granting leave to amend after the hearing on the City’s exception of

subject matter jurisdiction. Moreover, the court has the duty to examine subject

matter jurisdiction sua sponte, even where the litigants have not raised the issue.

Otwell v. Otwell, 10-1176 (La.App. 3 Cir. 2/9/11), 56 So.3d 1232 (citing

Boudreaux v. State, DOTD, 01-1329 (La. 2/26/02), 815 So.2d 7).

While we find that the OWC did not have continuing jurisdiction

under La.R.S. 23:1310.8 to allow the addition of the City as a defendant to a suit

previously resolved by final judgment against the Tour Company, the merits of the

statutory employer claim were never litigated or made part of the judgment. The

statutory employer claim may or may not be valid. Because the granting of the

exception was not determinative of the merits of the statutory employer claim, the

judgment granting the exception should have been without prejudice. See Aswell

v. U.S. Fidelity & Guaranty Co., 244 So.2d 243 (La.App. 3 Cir. 1971); IberiaBank

v. Live Oak Circle Development, L.L.C., 12-1636 (La.App. 1 Cir. 5/13/13), 118

So.3d 27; and see La.Code Civ.P. arts. 1673, 1841, 1844, and La.R.S.

13:4231(3). 1 Accordingly, we amend the OWC judgment to indicate that the

exception is granted without prejudice.

1
Art. 1673. Effect of dismissal with or without prejudice

A judgment of dismissal with prejudice shall have the effect of a final
judgment of absolute dismissal after trial. A judgment of dismissal without
prejudice shall not constitute a bar to another suit on the same cause of action.

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V.

CONCLUSION

Based upon the foregoing, the judgment granting the City’s exception

of subject matter jurisdiction is amended to indicate that it is without prejudice. As

amended, it is affirmed. Costs of this appeal are assessed equally between the

parties.

AFFIRMED AS AMENDED.

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