author: WHIPPLE, J.

text:
    David TODD v. Janice A. TATE and GEICO Insurance.
    No. 2004 CA 2754.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Joseph S. Soignet, Thibodaux, Counsel for Plaintiff/Appellant, David Todd.
    Geoffrey P. Clement, Metairie, Counsel for Defendants/Appellees, Janice Tate and GEICO Insurance.
    Michael G. Gee, Thibodaux, Counsel for Defendant/Appellee, Louisiana Farm Bureau Mutual Insurance Company.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WHIPPLE, J.

1 ¡¿Plaintiff, David Todd, appeals from a judgment maintaining a declinatory exception raising the objection of improper venue and a peremptory exception raising the objection of prescription filed by defendants, Janice Tate and her insurer, GEI-CO. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 24, 2002, plaintiff, who was domiciled in Lafourche Parish, and Tate, who was domiciled in Iberia Parish, were involved in an automobile accident at the intersection of La. Hwy. 668 and U.S. Hwy. 90 in Iberia Parish. On October 24, 2003, plaintiff filed a petition for damages in Lafourche Parish naming Tate and GEICO as defendants and alleging that he sustained injuries and loss of wages as a result of the accident.

On November 17, 2003, defendants responded by filing exceptions of improper venue and prescription, alleging that venue was improper in Lafourche Parish, where plaintiff filed suit, because the accident occurred in Iberia Parish, which was also where Tate was domiciled. Defendants contended that venue accordingly was proper in Iberia Parish, not Lafourche Parish. In support of their exception of prescription, defendants argued that |spursuant to LSA-C.C. art. 3462, the suit was prescribed. Further, they contended that LSA-C.C. art. 3462, entitled, “Interruption by filing of suit or by service of process,” applies and provides, in part, that “[i]f action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” Defendants contended that although plaintiffs suit was within the prescriptive period, when filed oh October 24, 2003, service was not confected upon Tate until November 4, 2003, and upon GEICO, through the Secretary of State, until November 6, 2003. Defendants contended that because plaintiff filed suit in an improper venue, and defendants were not served within the applicable prescriptive period, plaintiffs suit should be dismissed as having prescribed.

On February 20, 2004, plaintiff obtained leave of court to file a “First Amended Petition.” In the amended petition, plaintiff-named his UM carrier, Farm Bureau Mutual Insurance Company (“Farm Bureau”), as an additional defendant in these proceedings.

The defendants’ exceptions were subsequently heard before the trial court on February 25, 2004, after which the trial court took the matter under advisement. On June 4, 2004, the trial court rendered judgment maintaining the exceptions of improper venue and prescription. Plaintiff appeals, contending that the trial court erred in maintaining the exceptions and dismissing the suit as to Tate and GEICO

| ¿DISCUSSION

The question before this court on appeal is whether the filing of plaintiffs first amended petition, prior to the trial court’s grant of defendants’ exceptions of improper venue and prescription, relates back to the date of filing of plaintiffs original petition so as to make venue proper in La-fourche Parish for all defendants in this matter. The standard of review on appeal of a ruling on an exception is the manifest error — clearly wrong standard. See Gui-treau v. Kucharchuk, 99-2570, p. 8 (La.5/16/00), 763 So.2d 575, 580-581.

Plaintiff contends that any defects asserted in defendants’ exceptions were cured by the filing of the amended petition in Lafourche Parish naming his UM carrier as a defendant. Plaintiff argues that, pursuant to LSA-C.C.P. art. 1153, the amendment of his petition relates back to October 24, 2003, the filing date of the original petition. Thus, plaintiff contends, “the original petition filed against [defendants] was filed in a court of proper venue.”

Louisiana Code of Civil Procedure art. 1153 provides as follows:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

In sum, plaintiffs theory is that the amendment of the suit related back to October 24, 2003, and since suit was filed timely on October 24, 2003, and filed in the parish of proper venue, the defendants did not have to be served prior to the end of the prescriptive period which was interrupted, pursuant to LSA-C.C. art. 3462. Thus, plaintiffs argue, the relating back of their amending petition naming their UM carrier rendered any prescription problem moot.

| BIn support of his relation back argument, plaintiff cites Lewis v. Transocean Terminal Operators, Inc., 2002-0152 (La.App. 4th Cir.12/11/02), 834 So.2d 1180 (citing Trentecosta v. Beck, 2000-0860 (La. App. 4th Cir.5/2/01), 786 So.2d 885) and Baker v. Conagra Broiler Company, 93-1230 (La.App. 3rd Cir.5/4/94), 640 So.2d 494, none of which are factually or procedurally similar to the case at hand. While the cases cited by plaintiff interpreting LSA-C.C.P. art. 1153 do generally hold that once an amendment is deemed to relate back to the filing date of an original petition, prescription with regard to the amendment is interrupted as of the filing date of the original petition, in none of these cases was the original petition filed in a court of improper venue, as is the case in the matter before us. See Lewis (relating back of amending petition to specifically seek filiation of decedent’s seven illegitimate children previously named in succession suit recognized as proper and deemed sufficient to defeat assertion by defendants in wrongful death and survival suit that illegitimates’ claims were prescribed for lack of filiation proceeding within one year of death of alleged parent); see also Trentecosta (plaintiff added by amendment to properly filed original petition of other plaintiffs was likewise entitled to prejudgment interest under relating-back theory); and Baker (claim for workers’ compensation scheduled loss payments for eventual removal of plaintiffs eye was not prescribed because interrupted by timely and properly filed form 1008 and claims data form).

Plaintiff also cites Chesne v. Mayeaux, 2003-0570 (La.App. 3rd Cir.11/5/03), 865 So.2d 766, in support of his contention that the exception of improper venue became moot when the trial court signed the amended petition naming the UM carrier as a party defendant. In Chesne, another automobile collision case, plaintiff filed suit in Avoyelles Parish, the parish |fiof her domicile, naming as defendants the driver of the other vehicle, his insurer, plaintiffs employer’s insurer, and her UM insurance carrier. The accident occurred in Rapides Parish. Subsequently, plaintiff voluntarily dismissed her UM carrier, State Farm. The remaining defendants filed a declina-tory exception of improper venue asserting that as a result of the voluntary dismissal of her UM insurer from the suit, venue was no longer proper in Avoyelles Parish. Chesne, 2003-0570 at p. 2, 865 So.2d at 768.

In response, plaintiff filed an amended and supplemental petition for damages renaming her UM carrier, State Farm, as a defendant without providing additional allegations against State Farm. The trial court denied the defendants’ exception, finding that State Farm and plaintiff had reached a valid compromise leading to State Farm’s dismissal without prejudice. The court further noted that plaintiff had named her UM carrier as a defendant in her original petition, which, it explained, was a customary practice at the beginning of a suit prior to discovery. The court concluded that State Farm had not been added solely for the purpose of creating venue, and venue was proper in Avoyelles Parish. Chesne, 2003-0570 at pp. 4-5, 865 So.2d at 769. Defendants appealed and the court of appeal affirmed the ruling that venue was proper in Avoyelles Parish, but for reasons other than those expressed by the trial court. In concluding, the appellate court reasoned:

when venue in Avoyelles Parish was lost due to the dismissal of State Farm, it was regained when the trial judge allowed the amended and supplemental petition renaming State Farm as a defendant. Because venue had been reestablished before the hearing on the exception of improper venue, the trial judge properly denied the exception.

Chesne, 2003-0570 at p. 10, 865 So.2d at 772.

|7Relying on Chesne, plaintiff contends that as of February 20, 2004, the date the trial court signed his motion for leave to file an amended petition adding plaintiffs UM carrier as a party defendant, venue was proper as to all three defendants in Lafourche Parish.

The defendants counter that Chesne is inapplicable herein because in Chesne, although the plaintiff filed suit in the parish of his domicile, venue was initially proper in that domicile since plaintiff named his UM carrier as a party defendant in his original petition for damages. Defendants distinguish Chesne as a “venue case,” not a “situation where service is untimely and both issues of venue and prescription are concerned.”

Instead, defendants maintain, in the instant case, although plaintiffs lawsuit was timely filed, “it was filed in a parish of improper venue and since personal service of [plaintiffs petition on [defendant] was not made until November 4, 2003, and was not made on GEICO ... until November 6, 2003, service of process was not made within the prescriptive period as enunciated by Civil Code Article 3462.” Moreover, defendants contend that plaintiff is not attempting to substitute a previously “misnamed defendant,” but rather, is attempting to add a new defendant who was previously well known to plaintiff when the original suit was filed. Accordingly, defendants contend that LSA-C.C.P. art. 1153 does not apply inasmuch as plaintiff is not attempting to substitute a party defendant.

In Ray v. Alexandria Mall, St. Paul Property and Liability Insurance, 434 So.2d 1083 (La.1983), the Louisiana Supreme Court set forth the necessary criteria for determining whether an amendment relates back to the filing of an original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
ls(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Ray, 434 So.2d at 1087.

Applying the precepts in Ray, defendants contend that plaintiff is essentially attempting to extend the one-year prescriptive period applicable to defendants, Tate and GEICO, by adding his UM carrier within the two-year prescriptive period for naming UM insurance carriers. Defendants contend that if plaintiff is allowed to do so, any plaintiff with UM coverage could extend the one-year prescriptive period otherwise applicable against a tortfea-sor by claiming that a subsequently filed suit against a UM carrier would relate back to an untimely filed and served lawsuit against primary tortfeasors.

At the hearing on the exceptions, the parties agreed that “the suit was filed on the last day of prescription in the wrong parish and no one was served timely.” The parties disagreed as to whether the institution of a suit against a wholly new defendant, sued after the one-year prescriptive period had run, related back to the filing of the original suit, thus curing the venue problem.

In its written reasons for judgment, the trial court discussed the four criteria for determining whether LSA-C.C.P. art. 1153 allows an amendment, which changes the identity of a party, to relate back to the date lflof filing of the original petition as set forth in Ray. .After doing so, the trial court noted, “the defendant in rule is not attempting to substitute a defendant, but rather to revive a prescribed action by filing suit under a contractual obligation against his own uninsured motorist carrier and thereby [attempting to] ‘bootstrap’ venue as to the originally filed petition.” The trial court distinguished the relation back issue in Ray from the facts of the instant case, noting that the issue in Ray involved the substitution of a previously misnamed defendant, not the addition of individual defendants who were well known to the plaintiff when the original suit was filed. The trial court rejected plaintiffs argument that “this new petition alleging a cause of action against a new defendant should revive’ a prescribed suit.” In maintaining the exceptions, the trial court noted:

The purpose of prescription is to allow the defendant a definitive time at which an action can no longer be initiated. The relevant statutes require that the defendant be given notice in a timely fashion. It is only reasonable that this “notice” requirement is service on the defendant; therefore, a party must have received notice of the action within the one year prescriptive period or the suit was filed in the proper venue within the one year prescriptive period. While the statute should be applied liberally and without undue restriction by technical rules, La. Health Service and Indemnity Co. v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, rehearing denied (5/12/94), it would be patently unfair to allow any motorist who has uninsured motorist coverage to extend the one year prescription period for delictual actions to two years through the use of this argument. In short, the original matter is prescribed and the defendant must be provided with the security that it is forever barred.

We agree. Plaintiff herein clearly added his UM carrier, a “wholly new” defendant, as a measure to defeat prescription against the primary defendants. Moreover, this is not a case of mistaken identity where the “purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper • party defendant, the action would have been brought against him.” See Ray, 434 So.2d at 1087. In this 110case, plaintiffs UM carrier was known to plaintiff when the original suit was filed. After a thorough review of the entire record herein, and applying the precepts of law set forth above, we find no error in the judgment of the trial court maintaining defendants’ exceptions of improper venue and prescription.

CONCLUSION

Based on the above and foregoing reasons, the June 4, 2004 judgment of the trial court is affirmed. Costs of this appeal are assessed against the plaintiff/appellant, David Todd.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 42(1) provides, in part, that an action against "an individual who is domiciled in the state shall be brought in the parish of his domicile." Louisiana Code of Civil Procedure article 74 provides, in part, that "[a]n action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.”

      . We note that although the defendants contended in their memorandum and argument at the hearing on the exceptions that the accident occurred in Iberia Parish, the trial court noted in its written reasons for judgment that the intersection -of La. Hwy. 668 and U.S. Hwy. 90, where the accident occurred, is actually located in St. Mary Parish. The trial court, however, further noted, that for purposes of determination of the issues before it, "[tjhere is no dispute, in fact, the accident did occur outside the confines of Lafourche Parish.”

        . Pursuant to LSA-R.S. 9:5629, "[a]ctions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”
      Moreover, an action on an insurance policy may be brought in the parish where the insured is domiciled. LSA-C.C.P. art. 76.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Mickey L. WEATHERLY v. OPTIMUM ASSET MANAGEMENT, INC. and Barbara F.B. Broyles and Stephen Broyles.
    No. 2004 CA 2734.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Thomas D. Fazio, Baton Rouge, Counsel for PlaintiffyAppellee Mickey L. Weatherly.
    Robert V. McAnelly, Baton Rouge, Counsel for Defendants/Appellants Stephen E. Broyles and Barbara F.B. Broyles.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

| ¡.This appeal challenges a trial court’s invalidation of a tax sale. We affirm.

BACKGROUND

Most of the facts forming the basis for this lawsuit to annul a tax sale have been stipulated by the parties, and thus are not in dispute. On Mach 29, 1988, Dr. Leonard A. Buckner, a dentist, purchased an office condominium on Old Hammond Highway in East Baton Rouge Parish (“the property”). The property was encumbered by a collateral mortgage and collateral mortgage note executed by Dr. Buckner in favor of Baton Rouge Bank and Trust Company. The sale and the mortgage were recorded in the mortgage records for East Baton Rouge Parish. The collateral mortgage and the note were later acquired by Whitney National Bank in its merger with Baton Rouge Bank and Trust Company.

In 1996, Dr. Buckner experienced financial difficulties and contacted an acquaintance, Dr. Mickey Weatherly, a Texas resident with a dental practice there for the past 25 years, for assistance. As an accommodation to Dr. Buckner, Dr. Weath-erly agreed to pay off Dr. Buckner’s debt to Whitney National Bank and accept an assignment of the bank’s security interest in the property in return. On September 13, 1996, Whitney National Bank and Dr. Weatherly executed a document styled “Notarial Endorsement and Assignment of Notes and Other Related Security.” Therein, Whitney National Bank assigned its security interest in the property to Dr. Weatherly. The document was recorded on February 20, 1997, in the East Baton Rouge Parish mortgage records. Dr. Weatherly is identified in the document by his name, Mickey L. Weatherly, as the holder of a mortgage on the property by | ¡¡virtue of the assignment. There is no other information pertaining to Dr. Weath-erly in the document.

In April of 1997, the East Baton Rouge Parish Sheriffs Office (sheriffs office) sent two notices of an impending tax sale to Dr. Buckner at the mailing address for the property. Both notices were received and signed for by persons other than Dr. Buckner. The sheriffs office also ran two newspaper advertisements as required by law, the first on May 2, 1997, and the second on June 2, 1997. The sheriffs office did not send notice of the tax bills, tax delinquency, or the impending tax sale to Dr. Weatherly.

On June 27, 1997, the property was sold for nonpayment of 1996 property taxes to Optimum Asset Management, Inc., a foreign corporation. On December 21, 2001, Optimum Asset Management, Inc. executed a Quit Claim Deed, transferring whatever interest it had in the property to Barbara and Stephen Broyles.

Dr. Weatherly was not notified by the sheriffs office of the tax sale. In the spring of 2001, he discovered that the sale had occurred. On January 3, 2002, Dr. Buckner and Dr. Weatherly executed a Dation En Paiement, extinguishing the debt Dr. Buckner owed and transferring to Dr. Weatherly whatever ownership rights Dr. Buckner had in the property.

Thereafter, on May 13, 2002, Dr. Weath-erly filed this suit to annul the tax sale against Optimum Asset Management, Inc. and Barbara and Stephen Broyles. He alleged that as a mortgagee, whose identity was ascertainable at the time of the tax sale, he was entitled to notice of the proceeding, and the failure of the authorities to provide him with such notice violated his procedural due process rights under the United States and Louisiana Constitutions.

|4In response, the Broyles filed a recon-ventional demand asking for a confirmation of their tax title. They urged that Dr. Weatherly was not entitled to actual notice of the tax sale because he was not “reasonably identifiable.” The Broyles stressed that Dr. Weatherly never lived in East Baton Rouge Parish or maintained an office here, did not list his name, address or telephone number in any East Baton Rouge Parish directory or registry, and failed to include any identifying information in the act of assignment other than his name. They submitted that in the absence of additional identifying information in the recorded instrument, notice to Dr. Buckner by publication was adequate.

Following a hearing, the trial court ran an internet search on the name “Mickey Weatherly,” and based on the results of that search, found that Dr. Weatherly was “reasonably identifiable.” Therefore, the court concluded, the jurisprudence required that the governmental authority make some effort to provide Dr. Weatherly with notice of the tax sale. Finding no evidence that any steps were undertaken to locate the named mortgagee, the court held that the tax sale violated Dr. Weath-erly’s due process rights. Accordingly, the court decreed the tax sale null and void and declared Dr. Weatherly to be the owner of the property.

This appeal, taken by the Broyles, followed.

DISCUSSION

The trial court correctly observed that the record is devoid of evidence that the sheriffs office made any attempt to notify Dr. Weatherly, whose name appears in the public record as the assignee of the mortgage on the property, of the impending tax sale. Ms. Brenda Edwards, the assistant tax director for the sheriffs tax office, attested that in 1997, the sheriffs office simply did not undertake to identify and send notices to mortgagees of | ¡¡property tax delinquencies. However, she stated, the office currently has a procedure in place for notifying mortgagees of the nonpayment of taxes on every tax sale. Ms. Edwards explained that the office does a public records search, and if it were to disclose the name of a mortgagee without an address, further steps would be taken to ascertain an address, including enlisting the aid of the Clerk of Court’s research department, as well as a search of the Lexis/Nexis directory.

In their first assignment of error, the Broyles contend that the trial court erred by conducting an internet search to determine whether Dr. Weatherly’s identity was reasonably ascertainable. We agree. A finder of fact may not consider evidence outside the record in making its findings. Burdis v. Lafourche Parish Police Jury, 618 So.2d 971, 976 (La.App. 1st Cir.), writ denied, 620 So.2d 843 (La.1993). More particularly, it is well settled that the resolution of disputed issues by judicial notice is improper. Id. Nevertheless, we find any error the trial court may have committed by conducting the internet search is harmless, because the trial court’s ultimate conclusion that the tax sale violated Dr. Weatherly’s due process rights is legally correct.

The due process clause of the Fourteenth Amendment to the United States Constitution requires that deprivation of property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 313, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950). Thus, an elementary requirement of due process in any proceeding which is to be accorded finality is notice, reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an | fiopportunity to present their objections. Mullane, 339 U.S. at 314, 70 S.Ct. at 657.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 798, 103 S.Ct. 2706, 2711, 77 L.Ed.2d 180 (1983), the United States Supreme Court recognized that a mortgagee possesses a substantial property interest that is significantly affected by a tax sale, and therefore, the Court held, a mortgagee is entitled to notice reasonably calculated to apprise him of a pending tax sale. In Mennonite, the Court ruled that when a mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711. Constructive notice suffices, the court stressed, only when the mortgagee is not “reasonably identifiable.”

Appellants contend that Dr. Weatherly was not entitled to notice of the tax sale because he was not “reasonably identifiable.” They submit that it was Dr. Weath-erly’s inaction, in failing to give identifying information in the assignment, such as an address or social security number, and in failing to request written notice of a tax delinquency pursuant ■ to La. R.S. 47:2180.1, that resulted in his lack of notice of the tax sale. Appellants insist that without the proper identifying information in the act of assignment itself, any investigation by the sheriffs office to identify Dr. Weatherly would have been a “vain and useless endeavor,” and therefore, the lack of any attempt by the sheriffs office to identify or provide notice to Dr. Weatherly should not serve to invalidate the tax sale.

We disagree. Dr. Weatherly’s failure to include identifying information in the assignment, or his failure to request a notice of the tax delinquency under La. R.S. 47:2180.1, did not constitute a waiver of his |7right to notice under the due process clause. It has long been held that a party’s ability to take steps to safeguard his interests does not relieve the state of its constitutional obligation to give notice. Mennonite, 462 U.S. at 799, 103 S.Ct at 2712; Bank of West Baton Rouge v. Stewart, 2000-0114 (La.App. 1st Cir.2/16/01), 808 So.2d 464 (holding that a reasonably ascertainable mortgagee does not waive its constitutional due process right to notice of a tax sale by failing to request notice of a tax delinquency as provided for in La. R.S. 47:2180.1); Parkview Oak Subdivision Corp. v. Tridico, 95-0604 (La.App. 1st Cir.11/9/95), 667 So.2d 1101, writ denied, 96-0622 (La.5/10/96), 672 So.2d 921 (holding that the failure of a mortgagee to request notice of a property seizure under La. R.S. 13:3886 is not a waiver of due process notice and does not relieve a creditor of its constitutional obligation if it has reasonable means at its disposal to identify those parties whose interests will be adversely affected by the foreclosure).

Furthermore, the mere fact that the recorded instrument did not contain an address is not fatal to Dr. Weatherly’s due process claim. In Mennonite, the name of the mortgagee was identified in the public records, but no address was listed. The Court assumed that the mortgagee’s address could have been ascertained by “reasonably diligent efforts.” The Court stressed, however, that a governmental body was not required to undertake “extraordinary efforts” to discover the identity and whereabouts of a mortgagee whose identity is not in the public record. Mennonite, 462 U.S. at 798, 103 S.Ct. at 2711 n. 4. Thus, under Mennonite, the identification of a mortgagee by name in a publicly recorded instrument triggers a duty on the part of the governmental body to undertake reasonably diligent efforts to give notice of a tax sale to the mortgagee.

| ¡/Because Dr. Weatherly was identified as a mortgagee in the mortgage records, Mennonite required that he be notified of the impending tax sale if his whereabouts could have been ascertained by reasonably diligent efforts. It is undisputed in this case that the sheriffs office made no attempt to identify Dr. Weatherly as an interested party or ascertain his whereabouts. Had the sheriffs office looked into the mortgage records, it would have learned that Mickey Weatherly had a mortgage on the property, and it could have contacted Whitney National Bank, the assignor, or Dr. Buckner, the owner of the property, to obtain an address. Where an interested party’s name and address could have been found after a reasonably diligent search, that person is reasonably ascertainable. Henderson v. Kingpin Development Co., 2001-2115, p. 10 (La.App. 1st Cir.8/6/03), 859 So.2d 122, 130. Under the circumstances of this case, we can only conclude that the sheriffs office failed to undertake “reasonably diligent efforts” to identify and provide notice of the impending tax sale to Dr. Weatherly, and that failure rendered the tax sale an absolute nullity. See also In re Raz, 2003-0893 (La.App. 1st Cir.2/23/04), 871 So.2d 363 (holding a tax sale absolutely null where, despite the presence of a mortgage in the public records, the sheriffs office made no attempt to notify the mortgagee).

CONCLUSION

For the above reasons, the judgment decreeing the tax sale to be a nullity is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.


author: HUGHES, J.

text:
    Eric L. LOLIS v. PETRIN CORPORATION.
    No. 2004 CA 2716.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Rehearing Denied May 10, 2006.

      Eric L. Lolis, Baton Rouge, In Proper Person PlaintiffAppellant.
    Amanda H. Carmon, Baton Rouge, Counsel for Defendants/Appellees Petrin Corporation and Louisiana Workers’ Compensation Corporation.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   HUGHES, J.

1 ?This appeal challenges a ruling that a workers’ compensation claimant failed to sustain his burden of proving entitlement to indemnity benefits and to continued medical benefits. We affirm.

BACKGROUND

On March 15, 2001 while in the course and scope of his employment with Petrin Corporation, appellant Eric Lolis tripped and fell over a pipe rack at the work site and landed on his back. He did not return to work for Petrin following the incident, but made a claim for workers’ compensation benefits, claiming that he had injured his back in the fall. Petrin refused to pay Lolis medical or indemnity benefits, disputing the fact of an accident and any resulting disability.

On May 24, 2001 Lolis filed this disputed claim for compensation with the Office of Workers’ Compensation (OWC), seeking to recover medical expenses, temporary total disability benefits, supplemental earnings benefits, attorney’s fees, and penalties. The parties stipulated that Lolis was employed by Petrin at the time of the alleged work injury, that Lolis’s average weekly wage was $388.00, and that the Louisiana Workers’ Compensation Corporation (LWCC) provided workers’ compensation coverage to Petrin for the incident at issue.

At trial, Lolis testified that prior to being employed by Petrin, he had worked for a number of mortgage companies doing loan origination work and had worked for approximately 15 companies at temporary job assignments at construction sites. Personnel records introduced into evidence jointly by the parties show that from December 10, 1999 through February 2, 2001, Lolis worked intermittently for a temporary employment |sagency, Labor Ready. These records reveal that for the year 2000, Lolis worked one day in March, six days in April, twenty-two days in May, six days in June, and for the year 2001, he worked nine days in January and two days in February.

In March of 2001, Petrin hired Lolis as a “fire watcher” on one of its welding crews. Lolis’s job was to stand watch where the welders were working to make sure no sparks or flames from the welding work caused a fire. On March 15, 2001, less than two weeks after he was hired by Petrin, Lolis arrived at the work site for the evening shift. He testified that he had been working about two hours when he left his post to go to the restroom. Lolis attested that as he was walking toward his work unit, he encountered a pipe rack, his leg became entangled in it, and while he was trying to free himself, he lost his balance and fell to the ground on his back. Petrin employees Eddie Nagin and Carol Lyons did not witness the fall, but saw Lolis on the ground as he was trying to get up. Lolis stated that after his supervisor was informed of the accident, the supervisor told him he could leave for that evening. The Petrin employees testified, however, that a very angry Lolis told them he was quitting his job and to get him out of the plant.

The next morning, Lolis went to the Baton Rouge General Hospital’s emergency room complaining of back pain as a result of his fall at work. The x-rays taken of Lolis’s shoulder and cervical spine revealed no fractures or dislocations. Lol-is was diagnosed with musculoskeletal pain, and no restrictions were placed on his activities at that time. He returned to the hospital’s emergency room on April 6, 2001 with complaints of back pain. Again, he was diagnosed with musculoskeletal pain, and ibuprofen and flexeril were prescribed. Lolis’s discharge instructions did not restrict him |4from returning to work, but did contain a work/activity restriction of lifting no more than fifteen pounds until April 10, 2001.

Lolis testified that he called Petrin’s Human Resources Department to report the work accident a few days after it happened, making a claim at that time for compensation payments and medical benefits, which was denied. In support of his disability claim, Lolis introduced the deposition of Dr. James E. Hines III, a family practitioner who first treated Lolis on June 27, 2001 for back pain associated with the work injury. Dr. Hines could not locate records of Lolis’s initial visits, although he did recall treating Lolis on four occasions through December of 2001 for back pain. Dr. Hines diagnosed Lolis as having sustained a back strain with no signs of any disc injury or radiculopathy. In December of 2001, Dr. Hines opined that Lolis’s back condition was chronic because Lolis was still complaining of back pain nearly eleven months after the work accident, while low back strain injuries typically improve within six to eight weeks.

Dr. Hines testified that he filled out a disability form on January 16, 2002, attesting that Lolis was disabled from June 27, 2001 to an unknown time because of his back problem. He acknowledged that at the time he filled out the form, Lolis had not yet been seen by an orthopedic specialist. He further acknowledged that he was unaware that Lolis had in fact returned to work, and that this would change his opinion as to whether Lolis should work. He testified that in light of the length of time that had passed since the work incident, he believed that Lolis probably could work as of the date he filled out the disability form because Lolis’s condition had not progressed, but he still felt Lolis’s return to work was “foggy and ill advised.” Dr. Hines stated that he continued to treat Lolis until September 23, 2003 for back pain and other conditions, including diabetes. He opined that Lolis had reached |fihis maximum medical improvement as of October 21, 2003, and that he would be reluctant to release Lolis to return to work without a consult from an orthopedic specialist.

The remaining medical evidence showed that an MRI scan was taken of Lolis’s lumbar spine on March 20, 2002, which was normal. Lolis underwent physical therapy for lower back pain on four occasions in June of 2002. Thereafter, Lolis saw Dr. Theodore Knatt, an orthopedist, in August of 2002 complaining of back pain. Although Dr. Knatt recommended physical therapy, there is no indication of a disability finding by the doctor in the medical records produced at trial.

In March of 2003, a Functional Capacity Evaluation was performed on Lolis. The FCE report indicated that Lolis was capable of working a full-time job in the mid-medium physical demand level. The report set forth restrictions regarding sitting, squatting, stooping, and reaching. On November 3, 2003, Dr. William Hagem-ann of the Bone and Joint Clinic of Baton Rouge performed a physical examination of Lolis at the request of the LWCC. According to Dr. Hagemann’s report, the results of that examination were normal. Dr. Hagemann attested that Lolis appeared to have reached his maximum medical recovery and he could find no physical reasons to impose any restrictions on Lol-is’s employment activities.

Regarding Lolis’s work history, Lolis testified that he did not work for two to three months following the March 15, 2001 work accident, and returned to work only because he needed to support himself. He stated that his first employer following the work injury was Savard Staffing Services, where he worked on a garbage truck emptying trash, followed by a series of temporary jobs with Labor Finders, Labor Ready, and Lofton Staffing | ^Services. He testified that his back problem prevented him from working a normal 40-hour work week.

However, documentary evidence in the record includes a 2001 W-2 Wage and Tax Statement from Savard Staffing Services, Inc., listing Lolis’s 2001 wages as $1,958.65, and a job application Lolis filled out with Labor Finders, wherein he wrote that he had worked for two financial companies in April of 2001. According to Lol-is’s testimony, the job at Savard would have preceded the work at the two financial companies in April, and therefore must have occurred in March or April, 2001. Also, in the job application dated April 30, 2001, Lolis responded affirmatively to questions regarding his ability to walk up and down stairs with loads of 25 pounds.

Employment records demonstrate that Lolis returned to work with Labor Ready on August 24, 2001 and worked on jobs through that agency on a consistent basis through November 17, 2003. Lolis admitted at trial that he had worked with Labor Ready consistently since August of 2001. He also worked intermittently as a general laborer for Lofton Staffing Services and for Savard Staffing in 2003. These jobs, he attested, primarily involved construction type work.

Following the presentation of the evidence, the Workers’ Compensation Judge (WCJ) found that Lolis had sustained his burden of proving that an accident occurred during the course of his employment with Petrin on March 15, 2001. He also ruled that Lolis proved he suffered from a lumbar strain as a result of the accident, and awarded medical expenses related to the lumbar strain through November 3, 2003. However, the WCJ denied the claim for indemnity benefits, finding that Lolis failed to demonstrate that he was unable to work or was making less money than he had been, due to a disability from the work accident. In so doing, the WCJ ^observed that the evidence showed Lolis returned to work shortly after the injury to jobs requiring a similar or an even greater level of exertion than the fire-watching position he had with Petrin. Lastly, the WCJ awarded Lolis $2,500.00 in attorney’s fees and a $2,000.00 penalty for defendants’ failure to prove they reasonably controverted Lolis’s entitlement to medical benefits.

This appeal, taken by Lolis, followed.

DISCUSSION

In this appeal, Lolis essentially challenges the WCJ’s finding that he failed to prove entitlement to indemnity benefits, as well as the WCJ’s refusal to extend medical benefits beyond November 3, 2003. As in other cases, in reviewing the WCJ’s factual determinations, including whether the employee has discharged his burden of proof, this court is bound by the manifest error standard of , review. Lafleur v. Alec Electric, 2004-0003, p. 4 (La.App. 1st Cir.12/30/04), 898 So.2d 474, 478, writs denied, 2005-0276, 2005-0277 (La.4/8/05), 898 So.2d 1287, 1288; Moran v. G & G Construction, 2003-2447, p. 4 (La.App. 1st Cir.10/29/04), 897 So.2d 75, 79, writ denied, 2004-2901 (La.2/25/05), 894 So.2d 1148. Under that standard of review, this court may only reverse a WCJ’s factual determinations if we find from the record that a reasonable factual basis for the finding does not exist, or that examination of the entire record reveals that the finding is clearly erroneous, Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on preview where conflict exists in the testimony. Lafleur v. Alec Electric, 2004-0003 at p. 4, 898 So.2d at 478.

An employee has the burden of establishing the occurrence of an accident, and the causal relationship between the accident and the resulting disability, by a preponderance of the evidence. Moran v. G & G Construction, 2003-2447 at p. 4, 897 So.2d at 79. An employee seeking to recover indemnity benefits for a temporary total disability must prove by clear and convincing evidence that he is unable to engage in any gainful occupation, whether or not the same type of work he was engaged in at the time of the injury. La. R.S. 23:1221(l)(c). Here, Lolis failed to establish that he was unable to return to any type of occupation following his back strain. The only restriction placed on Lolis’s activities after the work accident was that he not lift over fifteen pounds until April 10, 2001. It is undisputed that at the time of the injury, Lolis was a fire watcher whose duties required him to stand in place holding a hose. Additionally, the testimony of Dr. Hines fell short of establishing that Lolis could not engage in any type of work because of his back strain. Dr. Hines acknowledged he was unaware of Lolis’s return to work at the time he filled out a disability form for Lolis in January of 2002, and he would have changed his opinion regarding Lolis’s ability to work had he known of that fact. Further, the WCJ was confronted with conflicting evidence regarding when Lolis returned to work following the March 15, 2001 work accident, and reasonably inferred from the evidence that Lolis returned to work shortly after the work accident to jobs requiring the same or a greater level of exertion than the job he had at Petrin. Based on the record, we are unable to say the WCJ committed manifest error , in finding that Lolis failed to sustain his burden of proving, by clear and convincing evidence, that he was unable 19to engage in any type of work after his fall on March 15, 2001, and we decline to disturb the WCJ’s denial of temporary total disability benefits.

Further, we find insufficient evidence in the record to support Lolis’s claim for supplemental earnings benefits. An employee is only entitled to receive such benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). The employee bears the burden of proving, by a preponderance of the evidence, that the work-related injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. La-Fleur v. Alec Electric, 2004-0003 at p. 5, 898 So.2d at 478. The documentary evidence - concerning Lolis’s work history showed that before the injury, Lolis worked primarily for temporary agencies on an intermittent basis at jobs paying wages ranging from $5.15 to $7.00 per hour. After the injury, Lolis was employed at jobs for temporary agencies paying $5.15 to $8.00 per hour, on a far more regular basis. Based on this evidence, we find no error in the WCJ’s conclusion that Lolis failed to prove he was unable to earn ninety percent of his pre-injury wage.

Lastly, we find no merit to Lolis’s claim that the WCJ erred in failing to extend his medical benefits beyond November 3, 2003. The evidence clearly showed that Lolis had reached his maximum medical recovery by this date, and there was no evidence suggesting Lolis was in need of any further medical treatment because of his work accident. Accordingly, we do not disturb the WCJ’s ruling.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Eric Lolis.

AFFIRMED.


author: CARTER, C.J.

text:
    Nedra Clem JACKSON v. CAPITOL CITY FAMILY HEALTH CENTER, Debra Lazare, Carolyn Weatherspoon & Flitcher Bell.
    No. 2004 CA 2671.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Shelton Dennis Blunt, Mary M. Felton, Baton Rouge, Counsel for PlaintiffAppel-lant, Nedra Clem Jackson.
    Murphy F. Bell, Jr., Baton Rouge, Counsel for Defendant/Appellee, Capitol City Family Health Center.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   CARTER, C.J.

| {.Plaintiff appeals the trial court’s judgment granting defendant’s motion for involuntary dismissal of plaintiffs petition for breach of contract. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 1, 2000, physician Nedra Clem Jackson, entered into a written contractual agreement with Capitol City Family Health Center (CCFHC) to provide medical services to CCFHC patients for a minimum of two hours per week. In addition, Dr. Jackson agreed to provide medical on-call services to CCFHC.

In December 2000, Ramona Green began working at CCFHC as a physician assistant. In Louisiana, physician assistants are required to work under the supervision of a physician approved by, and registered with, the Louisiana State Board of Medical Examiners. LAC 46:XLV.1501, et seq. (March 1999). Accordingly, on December 19, 2000, Dr. Jackson and Ms. Green signed a “Notification of Intent to Practice as a Physician Assistant.” On January 10, 2001, Dr. Jackson signed an “Application for Registration as a Supervising Physician for a Physician Assistant,” and CCFHC paid the $75 application fee. Dr. Jackson’s supervising physician certificate was issued on January 24, 2001.

Dr. Jackson testified that she acted as Ms. Green’s supervising physician from January 25, 2001, through March 30, 2001. Although Dr. Jackson was not always physically present with Ms. Green at the clinic, the testimony established Dr. Jackson was readily available by way of phone or pager. Ms. Green could not remember how often she consulted with Dr.

| aJackson; however, she indicated it was at least once a day, usually at the end of the day.

On April 14, 2002, Dr. Jackson sued CCFHC for breach of contract, alleging that under the terms of her contract with CCFHC she was entitled to an additional $37,600 in compensation, which represents $100 per hour for the 376 hours that she “supervised” Ms. Green. The 376 hours were based on Ms. Green working a 40-hour week during the period of January 26, 2001, to March 30, 2001. Dr. Jackson maintains she is entitled to this sum in addition to the contractual rates of $100 per hour Dr. Jackson received when physically present at the clinic and the $12.50 per hour she received when on-call for the clinic.

A bench trial was held July 7, 2004. When the plaintiff rested her case, defendant moved for an involuntary dismissal under LSA-C.C.P. art. 1672, which the trial court granted. Plaintiff appeals.

DISCUSSION

Motion for Involuntary Dismissal

Louisiana Code of Civil Procedure article 1672 B provides that in an action tried by the court without a jury, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for involuntary dismissal at the close of the plaintiffs case on the ground that upon the facts and law, the plaintiff has shown no right to relief. In deciding whether to grant a motion for involuntary dismissal, the trial court’s standard is whether the plaintiff has presented sufficient evidence in his case-in-chief [4to establish a claim by a preponderance of the evidence. Proof by a preponderance of the evidence means that taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Foster v. Tinnea, 96-2718 (La.App. 1 Cir. 12/29/97), 705 So.2d 782, 784.

When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Tyler v. Our Lady of the Lake Hospital, Inc., 96-1750 (La.App. 1 Cir. 6/20/97), 696 So.2d 681, 684. A trial court’s decision to dismiss based on LSA-C.C.P. art. 1672 B should not be reversed in the absence of manifest or legal error. Id.

With these legal precepts in mind, this court must determine whether the trial court erred in concluding that under the facts and law, Dr. Jackson failed to show by a preponderance of the evidence any right to relief under Louisiana law.

Breach of Contract

Contracts have the effect of law for the parties. LSA-C.C. art. 1983. Courts are obligated to give legal effect to contracts according to the common intent of the parties. LSA-C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. LSA-C.C. art. 2050.

| ¡^Whether the terms of a contract are ambiguous is a question of law. Appellate review of questions of law is simply to discern whether the trial court’s interpretive decision is legally correct. Seals v. Sumrall, 08-0873 (La.App. 1 Cir. 9/17/04), 887 So.2d 91, 94. The Jackson-CCFHC contract provides in part:

[Dr. Jackson] shall provide medical services to patients who present themselves to the Health Center during its hours of operation,... [and]' be' ‘on call,’ as required... In addition to the services rendered to CCFHC patients, physician shall provide services as directed by the Administration of the Health Center, including, but not limited to the following:... Collaborate with nurse practitioners, physician assistants and others. (Emphasis supplied.)

'The compensation agreed to under the contract was “a salary of $100.00 per hour to physician, which salary shall be paid on a bi-weekly basis, and $12.50 per hour for on-call services.... [T]he salary described above constitute^] the only compensation for services performed under this agreement.”

Dr. Jackson seeks an additional $100 per hour for the time spent collaborating and consulting with, as well as supervising, Ms. Green. Dr. Jackson maintains that she is entitled to $100 for every hour that Ms. Green worked at CCFHC, in addition to the $100 per hour Dr. Jackson received for being physically present at the clinic and in addition to the $12.50 per hour she received when on-call. However, under the clear terms of the contract, Dr. Jackson is not entitled to such remuneration. Regardless of whether Dr. Jackson’s time was spent seeing clinic patients, doing paperwork, or collaborating with physicians assistants, nurse practitioners, and others, the only compensation to which she was contractually entitled was $100 per hour when at the clinic and $12.50 per hour when on-call. Dr. Jackson | ^conceded that she was fully paid for all of the time she submitted on her time sheets and that the time sheets reflected -both her clinical and her on-call time.

We find no error in the trial court’s conclusion that under the clear terms of the contract Dr. Jackson was not entitled to additional compensation for the medical services she provided to CCFHC.

Quantum Meruit/Unjust Enrichment

In the alternative, Dr. Jackson argues on appeal that she is entitled to relief under the legal theory of quantum meruit due to CCFHC’s “unjust enrichment.” The civilian concept of quantum meruit refers to the measure of compensation or price unstated in a contract. Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 896. The Jackson-CCFHC contract clearly states the compensation rate to be paid Dr. Jackson. Thus, Dr. Jackson has not stated a claim for quantum meruit under a contract.

Often, the civilian concept of quantum meruit is used interchangeably with the common law substantive law claim geared toward equity, also known as quantum meruit. However, in the absence of a contract, the Louisiana Civil Code’s equitable remedy is more correctly referred to as unjust enrichment, also known as actio de in rem verso. Baker, 648 So.2d at 896. Louisiana Civil Code article 2298 provides in pertinent part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

^Accordingly, an action for unjust enrichment is allowed only when the plaintiff has no other remedy at law. Coastal Environmental Specialists, Inc. v. Chem-Lig International, Inc., 00-1936 (La.App. 1 Cir. 11/9/01), 818 So.2d 12, 19. The Louisiana Supreme Court has held that the existence of a claim on an express or implied contract precludes application of the unjust enrichment theory because the potential claim constitutes a remedy at law available to the plaintiff. Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 572, 575 (La.1989).

Dr. Jackson has no entitlement to relief under LSA-C.C. art. 2298 because there exists an independent remedy at law, the contract.

CONCLUSION

Plaintiff failed to show by a preponderance of the evidence any right to relief under Louisiana law. The trial court’s judgment is affirmed. Costs of this appeal are assessed to plaintiff/appellant, Dr. Ne-dra Clem Jackson.

AFFIRMED.

      . In her petition, plaintiff also named Debra Lazare, Carolyn Weatherspoon, and Flitcher Bell as defendants. An answer was filed on their behalf. However, the judgment at issue was rendered solely in favor of CCFHC; therefore, the remaining defendants are not before this court for the purpose of this appeal.


author: CARTER, C.J. DOWNING, J.,

text:
    K-MART CORPORATION v. Duiet MALBROUGH.
    No. 2004 CA 2609.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      William C. Cruse, Jennifer Cortes, Me-tairie, for Plaintiff — 1st Appellant K-Mart Corporation.
    William M. Magee, Covington, for Defendant — -2nd Appellant Duiet J. Malb-rough.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C.J.

[gin this workers’ compensation suit, Duiet J. Malbrough appeals from a judgment in favor of his former employer, K-Mart Corporation, granting K-Mart’s claim to change Mr. Malbrough’s temporary total disability benefits to supplemental earnings benefits for a specified time period and to recover the overpayments made. K-Mart also appeals from the judgment, contending it is entitled to recovery of overpayments for a longer time period than that awarded. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Malbrough, employed by K-Mart as an automobile mechanic, injured his back in a work-related accident in June 1994. K-Mart paid him temporary total disability benefits (TTD) or supplemental earnings benefits (SEB) from August 1994 through early November 1998. In February 1997, while still paying benefits, K-Mart filed a disputed claim for compensation under docket number 97-01315 (the # 97-01315 claim) contending there was no objective medical evidence to support Mr. Malbrough’s continued treatment.

In July 1997, while the # 97-01315 claim was pending, Mr. Malbrough was diagnosed with mental depression secondary to his injury. In mid-1998, Dr. Jerry McWil-liams, a psychotherapist, and Dr. Geraldine Payne, a psychiatrist, evaluated Mr. Malbrough. Both mental health professionals opined that he suffered from major depression. Dr. McWilliams’ also concluded that Mr. Malbrough was psychologically incapable of working. In April 19.98, however, Mr. Malbrough had begun employment as an | ^emergency medical technician at Lakeview Regional Medical Center (Lakeview), where he continued to work through 1999 and 2000. K-Mart terminated his benefits in early November 1998.

The trial of the # 97-01315 claim was held in November and December of 1998, after which the Office of Workers’ Compensation (OWC) judge signed a judgment in Mr. Malbrough’s favor, reinstating TTD until such time as Drs. McWilliams and Payne released him to return to work. K-Mart appealed the # 97-01315 judgment, and on September 22, 2000, this court affirmed the reinstatement of TTD in an unpublished opinion. K-Mart v. Malbrough, 99-2141 (La.App. 1 Cir. 9/22/00), 771 So.2d 317, writ denied, 00-3383 (La.2/16/01), 786 So.2d 100.

On October 19, 2000, K-Mart filed the instant claim with the OWC under docket number 00-08390 (the #00-08390 claim) seeking monthly earnings reports for the time periods Mr. Malbrough was requesting compensation benefits and to obtain his up-to-date medical and employment records. On November 22, 2000, Mr. Malbrough responded with an exception of lis" pendens, claiming that K-Mart’s # 00-08390 claim could not proceed until the # 97-01315 claim reached finality through the appellate process. K-Mart then filed a writ to the supreme court, on December 12, 2000, seeking review of this court’s decision on the # 97-01315 claim. On December 22, 2000, the OWC judge granted Mr. Malbrough’s exception of lis pendens on K-Mart’s # 00-08390 claim and the matter was stayed. _

On February 16, 2001, the supreme court denied K-Mart’s writ application in the # 97-01315 claim, and later, the OWC judge lifted the stay in the # 00-08390 suit. K-Mart subsequently paid the TTD owed under the # 97-01315 judgment for the period of November 1998 through October 142000. On March 15, 2001, K-Mart filed an amended claim in the # 00-08390 suit, seeking to modify the # 97-01315 judgment’s award of TTD. K-Mart claimed Mr. Malbrough was only entitled to SEB for the two-year period he worked at Lakeview. K-Mart sought to recoup the alleged overpayment of benefits. In response, on March 11, 2002, Mr. Malb-rough filed an exception of res judicata, claiming that K-Mart’s # 00-08390 claim was not a “new” claim but merely an attempt by K-Mart to again challenge the prospective TTD award in the # 97-01315 judgment. According to Mr. Malbrough, the OWC judge, this court, and the supreme court had all approved the prospective nature of the # 97-01315 judgment, and even if he worked in 1999 and 2000, K-Mart could not now seek to change the # 97-01315 judgment. The OWC judge denied Mr. Malbrough’s exception of res judicata.

After multiple continuances, the trial of K-Mart’s # 00-08390 claim was scheduled for May 12, 2004. Before the trial, counsel agreed to submit the matter for decision to the OWC judge on the sole issue of whether K-Mart was entitled to a credit for TTD paid to Mr. Malbrough when he was employed at Lakeview. K-Mart offered into evidence Mr. Malbrough’s payroll file from Lakeview and a printout of the compensation benefits paid to him during his employment there. Counsel for both parties stipulated that, if Mr. Malbrough would testify, he would agree that he worked at Lakeview for the period identified in his payroll file and that he received workers’ compensation benefits while working at Lakeview. The OWC judge took the matter under advisement.

On June 10, 2004, the OWC judge signed a judgment: (1) granting K-Mart’s petition for modification of the # 97-01315 judgment; (2) modifying | fithe # 97-01315 judgment to reflect Mr. Malbrough’s SEB status from April 9, 1999, the day after the # 97-01315 judgment was signed, through December 20, 2000, while he was employed at Lakeview; (3) granting K-Mart a $21,178.80 credit against Mr. Malbrough’s future indemnity benefits for the overpayment of TTD paid to him while employed at Lakeview; and (4) allowing K-Mart to recover the overpayment by reducing Mr. Malbrough’s future indemnity benefits at a rate not to exceed $100.00 per week until the credit was exhausted.

Mr. Malbrough appeals from the # 00-08390 judgment, contending the # 97-01315 judgment, and all matters decided therein, is res judicata and should not have been modified. In the alternative, he contends that any proper modification of the # 97-01315 judgment could only be effective from March 15, 2001, the date of K-Mart’s amended claim in the # 00-08390 suit, and not retroactively to April 9, 1999, the day after the # 97-01315 judgment was signed.

K-Mart also appeals from the # 00-08390 judgment, contending the OWC judge should have awarded recovery of TTD overpayments from November 3, 1998 through December 2000, and not just from April 9,1999.

RES JUDICATA

The doctrine of res judicata, codified in LSA-R.S. 18:4231, bars relitigation of matters that have previously been litigated and decided, as well as those that have never been litigated but should have been advanced in an earlier suit. Stroscher v. Stroscker, 01-2769 (La.App. 1 Cir. 2/14/03), 845 So.2d 518, 525. Implicit in the concept of res judicata is the | (¡principle that a party had the opportunity to raise a claim in the first adjudication but failed to do so. Id. This is so because a final judgment has the authority of a thing adjudged only as to those issues presented in the pleadings and conclusively adjudicated by the court. Lee v. Twin Brothers Marine Corporation, 03-2034 (La.App. 1 Cir. 9/17/04), 897 So.2d 35, 37.

Juxtaposed to the doctrine of res judica-ta is the concept of modification embodied in the Workers’ Compensation Act. Under LSA-R.S. 23:1310.8 A(l) and B, an OWC judge has continuing jurisdiction to review any award and to make modifications to that award upon a showing that there has been a change in conditions. Within the entire workers’ compensation scheme, this concept of modification is unique because it allows a case to be reopened and the award amended after the judgment becomes final. Falgout v. Dealers Truck Equipment Company, 98-3150 (La.10/19/99), 748 So.2d 399, 405 (citing Denis Juge, Louisiana Workers’ Compensation, § 3:7 (2nd ed.1999). See also Stroud v. Morrison Nursery, 01-931 (La.App. 3 Cir. 12/28/01), 806 So.2d 133, 135, writ denied, 02-0882 (La.5/24/02), 816 So.2d 856 (noting that the rules of finality applicable to ordinary judgments do not apply to workers’ compensation judgments). The purpose of the modification statute is to allow adjustments to be made after judgment “to insure that the employee will be paid compensation during the full period of his disability and that the employer will not be required to pay for any longer than this period of disability.” Landreneau v. Liberty Mutual Insurance Company, 309 So.2d 283, 285 (La.1975) (citing Malone & Johnson, Louisiana Workmen’s Compensation Law and Practice § 281, pp. 57-58 (1st ed. 1964 Supp.)).

|7K-Mart’s Entitlement to Reimbursement for TTD Paid for Dates Prior to # 97-01315 Judgment

It is clear from the record that K-Mart knew Mr. Malbrough was working as an EMT at Lakeview while the # 97-01315 claim was pending. Mr. Glenn Privette, a claims examiner responsible for handling Mr. Malbrough’s workers’ compensation claim, testified at the # 97-01315 trial that he learned of Mr. Malbrough’s Lake-view employment when he read a report from Dr. Payne, dated July 21, 1998, wherein Mr. Malbrough’s Lakeview employment was documented. Mr. Privette also testified that in August 1998, he issued SEB checks to Mr. Malbrough for March 31, 1998 through July 31, 1998, based on monthly earnings reports that indicated Mr. Malbrough was working at Lakeview during this period. Further, the # 97-01315 record shows Mr. Malbrough submitted monthly earnings reports to K-Mart for August through October of 1998 and that his Lakeview employment records were entered into evidence at the trial.

With this knowledge that Mr. Malb-rough was employed and that he was seeking reinstatement of TTD at the trial of the # 97-01315 claim, it was K-Mart’s responsibility at that time to raise the issue of his employment and to seek a restriction of his benefits to SEB. It is clear that K-Mart had the opportunity to raise that claim in the # 97-01315 trial, but failed to do so. Thus, the doctrine of res judicata bars the assertion of that claim, and K-Mart’s assignment of error, contending the OWC judge should have awarded recovery of TTD overpayments for dates before the # 97-01315 judgment, is without merit.

IsK-Mart’s Entitlement to Reimbursement for TTD Paid for Dates After # 97-01315 Judgment

In contrast to the above, res judica-ta does not bar K-Mart’s claim for reimbursement of TTD paid for periods after the # 97-01315 judgment. K-Mart could not have raised Mr. Malbrough’s 1999 and 2000 employment during the # 97-01315 trial, because that employment had not yet occurred. See Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517, 524-525. Further, this court’s review and the supreme court’s review of the # 97-01315 judgment were limited to the record developed in the OWC tribunal. Any factual events that occurred after the

# 97-01315 judgment are irrelevant. Thus, we need not consider Mr. Malb-rough’s assertions that this court and the supreme court were aware of and considered his 1999 and 2000 employment. His argument that the # 97-01315 judgment is res judicata as to changes of condition that occurred after its rendition is without merit.

The # 97-01315 judgment awarded Mr. Malbrough TTD, retroactive to November 3,1998, and until such time as Drs. McWilliams and Payne released him to return to work. In the present # 00-08390 case, the OWC judge determined Mr. Malbrough’s Lakeview employment and concurrent receipt of TTD constituted a “change in conditions” sufficient to modify the # 97-01315 award, effective April 9, 1999.

Under LSA-R.S. 23:1310.8, “[ujpon the application of any party in interest, on the ground of a change in conditions, the [OWC] 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 .... ” This statutory language is broad and does not limit |9the requisite change in conditions to a physical change in the claimant’s condition. Truitt v. Temp Staffers, 04-0590 (La.App. 1 Cir. 4/6/05), 915 So.2d 786, 794, writ denied, 05-1162 (La.6/24/05), 904 So.2d 742; McElroy v. Dynasty Transportation, Inc., 04-0599 (La.App. 1 Cir. 3/24/05), 907 So.2d 69, 73.

Given the unique concept of modification applicable to workers’ compensation judgments, we find no error in the OWC judge’s determination that as of April 9, 1999, Mr. Malbrough’s Lakeview employment and concurrent receipt of TTD constituted a “change in conditions” sufficient to warrant a reduction in his benefits to SEB. As stated by the OWC, “[t]he clear wording of LSA-R.S. 23:1221(l)(b) prohibits the receipt of [TTD] when an employee is working and earning wages.” Thus, even if Drs. McWilliams and Payne had not yet released Mr. Malbrough to return to work as of April 9, 1999, there is no dispute that Mr. Malbrough was in fact working and earning wages. Thus, the OWC judge correctly determined K-Mart was not required to pay him TTD.

Mr. Malbrough argues that if K-Mart is entitled to recoup the compensation overpayments, any proper modification of the # 97-01315 judgment can only be effective from March 15, 2001, the date of K-Mart’s amended claim in the # 00-08390 suit, and not retroactively to April 9, 1999. In support of his position, Mr. Malbrough relies on cases dealing with an employer’s right under LSA-R.S. 23:1225 to reduce its workers’ compensation obligation when an employee receives other enumerated benefits, such as social security benefits or disability benefits. These cases support the proposition that an employer claiming a reduction under LSA-R.S. 23:1225 can only reduce its workers’ compensation payments from the |indate of judicial demand. See, e.g., Prevost v. Jobbers Oil Transport Company, 97-2514 (La. App. 1 Cir. 6/29/98), 713 So.2d 1208, 1212, and Cross v. Travelers Insurance Company, 619 So.2d 610, 616 (La.App. 2 Cir. 1993).

We do not find this jurisprudentially created rule controlling in this case. K-Mart’s TTD reimbursement claim is not based on LSA-R.S. 23:1225’s offset provisions, but, rather, on LSA-R.S. 23:1310.8’s modification provisions. We find no statutory or controlling jurisprudence requiring that the reimbursement, based on a change of conditions, be allowed only from the date of judicial demand. Rather, the OWC judge’s choice to allow reimbursement from April 9, 1999, fulfills the modification statute’s purpose of insuring that Mr. Malbrough was paid proper compensation during the full period of his disability in 1999 and 2000 and that K-Mart was not required to pay more than necessary for that period of disability. Mr. Malbrough’s argument to the contrary is without merit.

CONCLUSION

For the above reasons, the OWC judgment in the # 00-08390 suit is affirmed. Costs of this appeal are to be borne equally by the parties.

AFFIRMED.

GAIDRY, J., concurs.

DOWNING, J., dissents-and assigns reasons.

DOWNING, J.,

dissents and assigns reasons.

hi dissent because I can discern no change in conditions to justify modifying Mr. Malbrough’s award after trying my best to do so. The conditions at the time of modification were identical to the conditions at the time the prior judgment was entered: Mr. Malbrough was receiving TTD benefits while he was working the same job. Thus, I am reminded of the tale of the Emperor’s New Clothes when I read the workers’ compensation court’s explanation of the “change in conditions,” as follows:

In the instant case, the court finds that Mr. Malbrough’s employment and concurrent receipt of TTD constitutes a “change in conditions” sufficient to modify the previous judgment. The clear wording of La. R.S. 23:1221(l)(b) prohibits the receipt of TTD when the employee is working and earning wages....

Where is the change? What is the change? The workers’ compensation court’s explanation provides the exact fact scenario that existed when the original judgment was entered. If K-Mart’s motion to modify is clothed in a change of conditions, I can’t see it.

The majority is correct in its statement that the “change in conditions” requirement of La. R.S. 23:1310.8 is broad and does not necessarily limit the requisite change in conditions to a physical change in the claimant’s condition. See Critser v. Dillard’s Department Stores, Inc., 99-3113, p. 6 (La.App. 1 Cir.2/16/01), 791 So.2d 702, 707. Accordingly, in Critser, 99-3113 at. p. 7, 791 So.2d at 707-08, this court found a change of conditions upon a change in jurisprudence affecting the employer’s entitlement to an offset for claimant’s social security benefits. And in McElroy v. Dynasty Transp. Inc., 04-0599, p. 7 (La.App. 1 Cir. 3/24/05), 907 So.2d 69, 73, we concluded that impossibility of performance as a result of a fortuitous event under the terms of a consent decree constituted a change in conditions pursuant to La. R.S. 23:1310.8.

However, the provision of La. R.S. 23:1310.8 allowing for modification of an award based on a change of conditions does not extend to mistakes or errors that prior courts or litigants failed to correct. See H. Alston Johnson, III, 13 La. Civil Law Treatise: Workers’ Compensation Law and Practice, § 284 at 702 (4th ed.2002). The power to modify “cannot be employed for the purpose of reviewing a prior judgment ... on the ground of mistake of law or fact, to afford the claimant an opportunity to try the case again with allegedly better proof, to ‘amend’ a judgment on other ground, or even to amend a judgment palpably incorrect if there has been no fraud or change in the employee’s capacity.” (Footnotes omitted.) Id., and see cases cited.

Here, the workers’ compensation court is attempting to fix a palpably incorrect judgment under the modification procedure afforded by La. R.S. 23:1310.8. However, without a change in conditions beyond a realization that a mistake has been made, modification is not allowable. A modification on such basis makes the requirement of a change in conditions to be so broad as to be meaningless.

We are presented with an anomalous situation where, after trial and appeal, Mr. Malbrough is receiving TTD benefits and a salary. But where |sthe law provides no further remedy, we must not stretch its provisions to the point of invisibility or meaninglessness to correct mistakes, which the best of us make from time to time.

Even so, we are free to exhort our good citizens not to take advantage of failures on the part of other parties or the court and to voluntarily limit themselves to those benefits to which they are properly entitled.

      . The factual and procedural history of Mr. Malbrough’s work-related injury and receipt of compensation benefits are set forth in this court’s previous unpublished opinion, K-Mart v. Malbrough, 99-2141 (La.App. 1 Cir. 9/22/00), 771 So.2d 317, writ denied, 00-3383 (La.2/16/01), 786 So.2d 100. The pertinent facts are incorporated here.

      . The OWC judge previously denied an exception of res judicata filed by Mr. Malbrough. The denial of an exception of res judicata is an interlocutory judgment that may be reconsidered by an appellate court on later review after judgment on the merits in the trial court. See Tolis v. Board of Supervisors of LSU, 95-1529 (La. 10/16/95), 660 So.2d 1206, 1207 (per curiam).

      . Mr. Privette was employed by Integrated Healthcare Delivery Services, which was the third party administrator hired by K-Mart to administer its workers' compensation claims.

      . This court has allowed an employer to recoup overpayment of compensation benefits paid for a seven-year period occurring well before the employer’s demand for reimbursement was made. See Hebert v. Terrebonne Parish School Board, 03-1444 (La.App. 1 Cir. 5/14/04), 879 So.2d 222, 226.