author: 2PETTIGREW, J.

text:
    Norman L. TYNES v. GAYLORD CONTAINER CORPORATION.
    No. 2002 CA 0519.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      Delbert Talley, Covington, for Plaintiff-Appellee Norman L. Tynes.
    Kirk Landry, Aaron J. Chaisson, Baton Rouge, for Defendant-Appellant Gaylord Container Corporation.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   2PETTIGREW, J.

In this case, defendant appeals a judgment of the Office of Workers’ Compensation awarding claimant temporary total disability benefits, supplemental earnings benefits, penalties, and attorney fees in connection with a work-related accident. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 30, 2001, claimant, Norman L. Tynes, filed a disputed claim for compensation with Office of Workers’ Compensation averring entitlement to workers’ compensation benefits. Mr. Tynes alleged that on November 2, 1998, while in the course and scope of his employment at Gaylord Container Corporation (“Gay-lord”), he injured himself while attempting to change the sprinkler head behind one of the paper machines. Mr. Tynes, who was 58 years old at the time of this incident, began working at Gaylord’s Bogalusa Paper Mill in June 1967, and was working as an operating mechanic when he was injured.

According to Mr. Tynes, immediately following the incident on November 2, 1998, he was unable to “straighten up” and thought he had just pulled a muscle. He continued to work for a few days following this incident, until November 7,1998, when he reported to his supervisor that he could not work because he was “still hurting.” At that time, Mr. Tynes’ supervisor filled out an Employer’s Report of Occupational Injury or Disease and sent him to the emergency room at Bogalusa Medical Center. X-rays at that time revealed two bulging discs, and Mr. Tynes was told that he should not return to work.

Thereafter, on November 11, 1998, Mr. Tynes began seeing Dr. James R. Gosey, Jr., an orthopedic surgeon who had previously treated Mr. Tynes for an arm injury. Dr. Gosey also advised Mr. Tynes to remain off of work and referred him to physical therapy. Mr. Tynes underwent an MRI in late 1998, which, according to Dr. Gosey, revealed that he had a “bad back.” On January 13, 1999, Dr. Gosey noted as follows:

He’s got a Grade I SPONDYLOLIS-THESIS at L5. There is degenerative changes throughout the lumbar spine with bulging, degenerated discs. There is some mild neuroforaminal encroachment at L3-4 and at L4-5.... His normal job is mechanic type job. Looking at his MRI, I don’t think he ought to be a mechanic anymore. I think that’s over. His days of lifting, | -¡doing any significant work with his back are over.... [S]o as far as I’m concerned he is disabled from his job indefinitely.

In the “Attending Physicians Statement” completed by Dr. Gosey in March 1999, Dr. Gosey indicated that Mr. Tynes is “totally incapacitated” and that such incapacity is permanent. In fact, throughout Dr. Gosey’s notes concerning Mr. Tynes’ treatment, he continually referred to Mr. Tynes as “NOT FIT FOR DUTY.” It was not until his deposition was taken on July 10, 2001, that Dr. Gosey implied that if there was a job that fell within the physical restrictions that he had outlined for Mr. Tynes, then he would release Mr. Tynes to return to work.

According to Mr. Tynes, since he last worked for Gaylord, he has not sought work anywhere else because he has not been discharged by Dr. Gosey to return to work. He did, however, attempt to raise cattle, but only made enough money to cover his expenses. Mr. Tynes also testified that he currently receives $1,448.00 in social security disability benefits and $791.68 in disability retirement benefits from Gaylord.

Immediately following the accident, on November 2, 1998, Gaylord began paying Mr. Tynes temporary total disability benefits (“TTDs”), later converted the benefits to supplemental earnings benefits (“SEBs”), and then terminated all benefits on November 11, 2000, alleging that Mr. Tynes had removed himself from the work force and was no longer entitled to benefits pursuant to La. R.S. 23:1221(8)(d)(iii). This action by Gaylord prompted the instant suit. Mr. Tynes’ claim for compensation proceeded to hearing on October 10, 2001, at which time the workers’ compensation judge heard testimony from Mr. Tynes, allowed the introduction of various documents into evidence, including the deposition and office notes from Dr. Gosey, and took the matter under advisement.

RAfter hearing from Mr. Tynes at trial and considering the evidence in the record, the workers’ compensation judge rendered judgment on November 19, 2001, awarding Mr. Tynes TTDs from November 7, 1998, the date of the accident, through July 10, 2001, and SEBs from July 11, 2001, forward, not to exceed 520 weeks. Moreover, the judge concluded that Gaylord was arbitrary in its conversion of Mr. Tynes’ benefits from TTDs to SEBs and set a hearing to determine the amount of attorney fees and penalties to be assessed for such action. Following a hearing on December 12, 2001, the workers’ compensation judge rendered a judgment on December 26, 2001, in favor of Mr. Tynes, awarding $3,200.00 in attorney fees and $2,000.00 in penalties. It is from these judgments that Gaylord has appealed, assigning the following specifications of error:

I. The trial court committed legal error by shifting the burden of proof to the employer to prove the availability of a job within the employee’s physical restrictions where the employee’s treating physician indicates that the employee is physically capable of engaging in gainful employment, the employee has taken absolutely no steps to locate any form of employment and has voluntarily withdrawn himself from the labor market, resulting in his failure to satisfy his initial burden of proof.
II. The trial court committed legal and manifest error in holding that the proper date to convert the appel-lee’s benefits from TTD to SEB was the date of his treating physician’s deposition where no evidence was presented that a change in his condition occurred on that date, and the physician clearly testified that the appellee was capable of engaging in employment with restrictions for a 40 hour week and these restrictions were the same throughout the entire course of treatment.
III. The trial court committed manifest and legal error in awarding penalties and attorney’s fees for improper conversion of Temporary Total Disability Benefits to Supplemental Earnings Benefits where the medical evidence of the employee’s treating physician clearly indicates that he was always capable of engaging in gainful employment.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers’ compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

SUPPLEMENTAL EARNINGS BENEFITS

In assignment of error number one, Gaylord contends that the workers’ compensation judge improperly and prematurely shifted the burden of proof in awarding SEBs to Mr. Tynes. Citing La. R.S. 23:1221(3)(a) and Seal v. Gaylord Container Corporation, 97-0688 (La.12/2/97), 704 So.2d 1161, Gaylord asserts that under the clear wording of the statute and the unambiguous interpretation by the Louisiana Supreme Court, it did not have the obligation to engage in any vocational rehabilitation or related activities until Mr. Tynes met his initial burden of proving that he was unable to earn 90 percent or more of his pre-injury wage. Gaylord alleges that by not undertaking even the most basic of job searches to locate other employment, Mr. Tynes has failed to satisfy his initial burden of proof, and thus, the burden never shifted to Gay-lord to perform a vocational evaluation, rehabilitation, or a functional capacity evaluation. Alternatively, Gaylord asserts that even if this court finds that Mr. Tynes has satisfied his initial burden of proving his entitlement to SEBs, any right to these benefits was properly | fiterminated pursuant to La. R.S. 23:1221(3)(d)(iii) because Mr. Tynes chose to voluntarily remove himself from the work force. We find no merit to any of these arguments.

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage-earning capacity lost as a result of a work-related accident. Crochet v. Ronald Adams Contractor, Inc., 2001-1015, p. 3 (La.App. 1 Cir. 5/10/02), 818 So.2d 994, 996, writ denied, 2002-1611 (La.9/30/02), 825 So.2d 1197. Entitlement to SEBs is governed by La. R.S. 23:1221(3), which provides, in pertinent part, as follows:

(3) Supplemental earnings benefits.
(a) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee at the time of the injury was particularly fitted by reason of education, training, and experience, such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his “wages” by fifty-two and then dividing the quotient by twelve.

Thus, in order to recover SEBs, a employee must first prove, by a preponderance of the evidence, that a work-related injury has resulted in his inability to earn 90 percent or more of his average pre-injury wage. Seal, 97-0688 at 8, 704 So.2d at 1166. “The analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker’s compensation law is to be liberally construed in favor of coverage.” Daigle v. Sherwin-Williams Company, 545 So.2d 1005, 1007 (La.1989).

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs or establish the claimant’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. Scott v. Lakeview Regional Medical Center, 2001-0538, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 221, writ denied, 2002-1712 (La.10/14/02), 826 So.2d 1127 Inciting Banks, 96-2840 at 9, 696 So.2d at 556). Actual job placement is not required. Seal, 97-0688 at 8, 704 So.2d at 1166. However, pursuant to La. R.S. 23:1226, when an employee suffers a work-related injury that is covered by the Louisiana Workers’ Compensation Act and said injury precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services.

In determining whether a finding that an employee has met the initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn 90 percent or more of his pre-injury wages. Seal, 97-0688 at p. 8, 704 So.2d at 1166. Factors that have been considered in determining whether a claimant can earn 90 percent of his pre-injury wage include the employee’s age, education, job skills, and work history. See Seal, 97-0688 at 9-10, 704 So.2d at 1166-1167.

In the instant case, the evidence is such that Mr. Tynes’ treating physician found him to be indefinitely disabled as a result of the November 2, 1997 accident. In fact, on April 13, 1999, Dr. Gosey noted that Mr. Tynes was “unable to return to [his job] on a permanent basis.” Dr. Go-se/s findings with regard to Mr. Tynes’ ability to work were consistent throughout his treatment of Mr. Tynes. Dr. Gosey continually noted that Mr. Tynes was “NOT FIT FOR DUTY” as a result of the work-related injury he sustained. At the time of trial, Dr. Gosey had last seen Mr. Tynes on April 18, 2001. His office note from that visit reveals, in pertinent part, as follows:

Follow-up on his BACK. He’s pretty much the same.... It’s been going on for years.... We’ll continue him NOT FIT FOR DUTY. He is unable to do any type of work. He cannot work at a cash register. He cannot lift weights. He cannot do anything. He doesn’t want any surgery at this time. He’s getting by with a few medications and trying to deal with it over time. We’ll see how he does.

It was not until his deposition was taken on July 10, 2001, that Dr. Gosey somewhat modified his opinion regarding Mr. Tynes’ ability to work. Dr. Gosey maintained that the restrictions that he had placed on Mr. Tynes were “pretty tight restrictions” and had been the same throughout the course of his treatment of Mr. Tynes. |s The following hypothetical questions were posed to Dr. Gosey concerning whether Mr. Tynes would be able to work if there was a job available that fit within his physical restrictions:

Q. And if in fact there were jobs or work that he could do within the restrictions that you have described, he in fact wouldn’t be totally disabled or totally unable to engage in any of that employment?
A. That’s correct. If you could find him a job within the physical restrictions then I would release him to do that job.
Q.... [Fjrom a medical perspective from you as an orthopedic surgeon, would you think it would be beneficial for somebody in Mr. Tynes’ circumstances to be engaged in employment or seeking employment; that sort of thing?
A. Well, in general, we want people to work if they can and we don’t particularly like people sitting in the house doing nothing, but at his age with the type of job he had with workers’ compensation figuring into the equation, it’s pretty hard for me to say: You need to go find a job and get out of the house. Because the work he would be available for is pretty limited based on his physical restrictions, and I haven’t told the man: Look, you need to go out and find a job. I’m not about to do that. If he wants to know what kind of work could he do or if they had a job description they wanted me to check off on, I would be more than happy to do that.
Q. Doctor, is it fair to say that to the extent that work is available within the physical restrictions that you’ve described, that Mr. Tynes is not unable to engage in gainful employment?
A. Correct. If you have a job that fell within the physical restrictions outlined here, then I would release him to go to that job. I would say he’s capable of doing that job.

Dr. Gosey further testified that Gaylord had never provided him with any job descriptions to sign off on for Mr. Tynes.

Mr. Tynes testified that he never sought any other employment after his retirement from Gaylord in June 1999, because he was never released by Dr. Gosey to return to work. Mr. Tynes indicated that had Dr. Gosey told him that he could do a certain type of work within his restrictions, he would have returned to work. However, Mr. Tynes stated that neither Gaylord nor its insurer ever suggested to him that there were jobs available to him at Gay-lord that would fit within his limitations. Moreover, Gaylord never offered him any kind of vocational rehabilitation or training as mandated by La. R.S. 23:1226.

| flBased on our review of the evidence in the record, we are satisfied that the workers’ compensation judge was correct in concluding that Mr. Tynes carried his burden of proving his entitlement to SEBs. Not only was there an abundance of evidence to support a finding that Mr. Tynes was unable to earn 90 percent or more of his pre-injury income, but there was also evidence that Gaylord failed to fulfill the requirements of La. R.S. 23:1226 by not providing Mr. Tynes "with prompt rehabilitation services.

Having determined that Mr. Tynes satisfied his initial burden of proof with regard to his entitlement to SEBs, we now address Gaylord’s alternative argument that Mr. Tynes’ benefits were properly terminated pursuant to La. R.S. 23:1221(3)(d)(iii). Noting that Mr. Tynes is currently receiving social security disability benefits in the amount of $1,448.00 per month and retirement disability benefits from Gaylord in the amount of $791.63 per month, Gaylord alleges that Mr. Tynes has not made any effort to locate employment within his medical restrictions because he can make more money “by sitting at home.” Gaylord argues that because Mr. Tynes is receiving social security disability benefits and retirement disability benefits, he is “retired” within the meaning of La. R.S. 23:1221(3)(d)(iii). We disagree.

As set forth in La. R.S. 23:1221(3)(d), “The right to supplemental earnings benefits pursuant to this Paragraph shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate ... [w]hen the employee retires; however, the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks.” In Allen v. City of Shreveport, 93-2928, p. 7 (La.5/23/94), 637 So.2d 123, 126-127, the Louisiana Supreme Court concluded that a worker retires under La. R.S. 23:1221(3)(d)(iii) when: (1) the worker withdraws from the work force; or (2) the worker draws old age social security benefits, whichever comes first. The court found that Allen, a 55-year-old city worker who suffered a hernia during his employment with defendant, was entitled to receive SEBs because he was unable to earn 90 percent or more of his pre-injury wages. Discounting the argument that Allen’s early retirement from the city meant he had “retired” under La. R.S. 23:1221(3)(d)(iii), the court noted as follows:

|inThe Social Security Act makes it clear that early retirement and retirement are two different things. Allen could not return to his former job with the City of Shreveport and therefore elected to take early retirement benefits due him at age 55 because of 20 years service. If Allen had accepted retirement benefits in lieu of returning to his former job, he would be retired and not entitled to SEBs. However, he accepted early retirement benefits only because his former job was not available to him.

Allen, 93-2928 at 6, 637 So.2d at 126.

Similarly, in the instant case, Mr. Tynes was unable to return to his previous job due to the work-related injury he sustained. Based on his 32 years of employment with Gaylord, Mr. Tynes would have been eligible for early retirement on September 29, 1999, when he turned 55 years old. Because of his injury, Mr. Tynes took disability retirement in June 1999. This does not, however, equate to retirement as is required by La. R.S. 23:1221(3)(d)(iii). There is no evidence that Mr. Tynes is receiving or entitled to receive old age social security benefits. Moreover, although Gaylord offered no vocational rehabilitation services to Mr. Tynes, he decided, on his own, to raise cattle. This attempt at self-employment was sufficient to rebut any argument that Mr. Tynes had removed himself from the work force.

Mr. Tynes earned the benefits due him under the Gaylord retirement plan by his continuous employment with Gaylord over a period in excess of 30 years. His election to take benefits to which he is entitled under Gaylord’s retirement plan should not deprive him of any other benefits that his employer is obligated to provide under workers’ compensation law unless it is established that he has actually retired, i.e., withdrawn from the work force with no intention of returning. Mr. Tynes’ receipt of social security disability benefits and his acceptance of benefits under the Gaylord disability retirement plan does not give rise to a conclusive presumption that he is “retired” within the meaning of La. R.S. 23:1221(3)(d)(iii). Therefore, as there is no evidence of Mr. Tynes’ intention to permanently withdraw from the work force, we conclude that the provisions of La. R.S. 23:1221(3)(d)(iii) are inapplicable.

AWARD OF TTDs AND CONVERSION TO SEBs

In assignment of error number two, Gaylord contends that the workers’ compensation judge’s award of TTDs from the date of the accident to the date of InDr. Gosey’s deposition constitutes clear error and must be reversed. Gaylord maintains that there is no medical evidence in the record to show that Mr. Tynes’ medical condition changed on that date. This argument is without merit.

The payment of total disability benefits, either permanent or temporary, is authorized by La. R.S. 23:1221 only where an employee is disabled to the extent that he cannot “engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience.” La. R.S. 23:1221(l)(a) and (2)(a). Both La. R.S. 23:1221(l)(c) and 23:1221(2)(c), governing temporary total disability and permanent total disability, respectively, state that “whenever the employee is not engaged in any employment ... total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment.”

As previously indicated, throughout his treatment of Mr. Tynes, Dr. Gosey continually referred to him as “NOT FIT FOR DUTY.” In January 1999, Dr. Gosey noted that Mr. Tynes was indefinitely disabled from his job. In April 2001, Dr. Gosey again indicated that Mr. Tynes was “NOT FIT FOR DUTY” and found that Mr. Tynes was “unable to do any type of work.” Dr. Gosey’s opinion on this issue did not waver until his deposition was taken in July 2001, at which time he speculated that given a job within Mr. Tynes’ physical restrictions, he would release Mr. Tynes to return to work. Based on our review of Dr. Gosey’s testimony and office notes, it is clear that following the accident on November 2, 1998, Mr. Tynes was temporarily totally disabled and, thus, unable to engage in any employment. Accordingly, we conclude, as did the workers’ compensation judge, that Mr. Tynes has satisfied his burden of proving by clear and convincing evidence that he was disabled and entitled to receive TTDs from November 7, 1998, until July 10, 2001, at which time the benefits were properly converted to SEBs based on Dr. Gosey’s |12testimony that Mr. Tynes might be able to return to work if there were a job available that fit within the very tight physical restrictions that he had placed on Mr. Tynes.

ATTORNEY FEES AND PENALTIES

In its final assignment of error, Gaylord contends that the workers’ compensation judge erred in awarding Mr. Tynes attorney fees and penalties for the conversion of TTDs to SEBs. Gaylord alleges that it was “legally and manifestly erroneous to determine that [it] acted arbitrarily in any conversions of [Mr. Tynes’] benefits from TTD to SEB when [his] own orthopaedic specialist has testified that [Mr. Tynes] was capable of engaging in gainful employment during the entire course of his treatment, thus showing there never was any entitlement to TTD benefits.”

It is well established in Louisiana jurisprudence that an employer can change temporary total disability benefits to supplemental earnings benefits only when the employee has been released back to work by his treating physician. Clark v. State, Department of Corrections, 94-0168, p. 3 (La.App. 3 Cir. 10/5/94), 643 So.2d 467, 469. Whether the refusal to pay compensation benefits or the discontinuation of those benefits warrants the imposition of penalties and attorney fees is a factual question that will not be disturbed upon review in the absence of manifest error. Whiddon v. Livingston Parish Council, 2000-1349, p. 7 (La.App. 1 Cir. 9/28/01), 809 So.2d 421, 427, writ denied, 2001-2893 (La.1/25/02), 807 So.2d 837:

In the instant case, Gaylord began paying TTDs immediately after the November 2, 1998 accident. However, the TTDs were later converted to SEBs and then ultimately terminated on November 11, 2000. The workers’ compensation judge found that this conversion from TTDs to SEBs was baseless, arbitrary, and unsupported by the record and ultimately awarded attorney fees in the amount of $3,200.00 and penalties in the amount of $2,000.00. The workers’ compensation judge noted as follows: “The record is void of any medical evidence to suggest Tynes had reached MMI [maximum medical improvement] at the time his benefits were converted to supplemental earnings benefits, not from Tynes’ treating physician or a physician of the Defendant’s choosing.” Based on our review of the record, we agree.

| iaDr. Gosey’s notes are clear that following the November 2,1998 accident, Mr. Tynes was “NOT FIT FOR DUTY” as a mechanic and that this disability was indefinite. Dr. Gosey never released Mr. Tynes to return to work as a mechanic. Moreover, Dr. Gosey was never asked to consider whether Mr. Tynes would be able to return to any other job at Gaylord or with any other employer. Rather, in his July 10, 2001 deposition, Dr. Gosey simply stated that if there was a job that fell within the physical restrictions that he had outlined for Mr. Tynes, then he would release Mr. Tynes to return to work. At no time before this did Dr. Gosey release Mr. Tynes to return to work in any capacity. Conversion of Mr. Tynes’ benefits from TTDs to SEBs by Gaylord was arbitrary, thus warranting an award of attorney fees and penalties.

CONCLUSION

Having thoroughly reviewed the instant record, we find no error in the judgment of the workers’ compensation judge. Accordingly, the judgment is affirmed in all respects. All costs associated with this appeal are assessed against defendant-appellant, Gaylord Container Corporation.

AFFIRMED.

      . We note that in brief, as well as in oral argument to this court, Gaylord maintains that it does not admit that the activity Mr. Tynes was engaging in on November 2, 1998, constitutes an accident within the meaning of the Louisiana Workers’ Compensation Act and that this issue was not before the lower court. Gaylord asserts that the only issue before the workers' compensation judge was whether Mr. Tynes was entitled to indemnity benefits beyond those that have already been paid to him. We disagree. A review of the November 19, 2001 judgment reveals that the judge refers to the incident in question as an "accident.” Moreover, pursuant to La. R.S. 23:1031, a claimant is only entitled to compensation benefits where he has sustained "personal injury by accident arising out of and in the course of his employment. Thus, the fact that the workers’ compensation judge awarded Mr. Tynes TTDs and SEBs necessarily implies a finding by the judge that Mr Tynes was injured by accident arising out oi and in the course of his employment/'

      . We note a discrepancy in judgment in that the judge incorrectly refers to November 7, 1998, rather than November 2, 1998, as the date of the accident. However, this discrepancy has no bearing on the correctness of the judgment, as November 7, 1998, is the date on -which Mr. Tynes reported the accident to his supervisor and indicated that he could no j work because of ^ pain associated with his inj


source: Caselaw Access Project

author: 2KUHN, J.

license: Public Domain

text:
    BOARD OF TRUSTEES OF STATE EMPLOYEES GROUP BENEFITS PROGRAM v. The ST. LANDRY PARISH BOARD, et al.
    No. 2002 CA 0393.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Writ Denied May 9, 2003.

      H. Alston Johnson, III, Baton Rouge, Counsel for Plaintiff/Appellant The Board of Trastees of the State Employees Group Benefits Program.
    Asa A. Skinner, First Assistant District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, Counsel for Defendant/Appellee Vernon Parish School Board.
    A. Gerard Caswell, Eunice, Counsel for Defendant/Appellee St. Landry Parish School Board.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   2KUHN, J.

The Board of Trustees of the State Employees Group Benefits Program (the “Board of Trustees”) filed this suit seeking a declaratory judgment against the St. Landry Parish School Board and the Vernon Parish School Board (“the School Boards”). The Board of Trustees sought a ruling that it was entitled to “risk-rate” the teachers, other school board employees, and persons retired from those positions (“school board participants”) upon their entrance into the State Employees Group Benefits Program (“the State Group Program” or “the Program”) after participating in another group health and accident program. “Risk-rating” would allow the Board of Trustees to set the premium for these school board participants at “the greater of the premium rate based on the loss experience of the group under the prior plan or the premium rate based on the loss experience of the classification into which the group is entering” as referred to in Acts 1988, No. 902, § 1 (former La. R.S. 42:851 A(5)(b)(iii)). The School Boards reconvened, alleging that-the Board of Trustees had improperly “risk-rated” the school board participants for the first year of participation in the program based on the provisions of Acts 1992, No. 601 (former La. R.S. 42:881). This provision imposes “risk-rating” on participants from entities that have 50% or more of its employees participating in a health maintenance organization (“HMO”). The School Boards sought a refund of the additional premiums collected based on the “risk-rating” practice.

|3In response to each party’s motion for summary judgment, the trial court signed a judgment denying the Board of Trustees’ motion for summary judgment and granting the School Boards’ motions. The trial court ordered the Board of Trustees to refund the additional premiums that the School Boards paid due to the “risk-rating.” Finding merit in the arguments advanced by the Board of Trustees on appeal, we reverse and render judgment in its favor.

I. FACTUAL AND PROCEDURAL BACKGROUND

The State Group Program and its Board are authorized to provide health and accident coverage for eligible state employees and retired employees either through securing private contracts of insurance or by operating a self-funded program for that same purpose. La. R.S. 42:851 A(l)(a). Teachers, other school board employees, and persons retired from those positions are considered “state employees” and are entitled to participate in the State Group Program. La. R.S. 42:851 B. City and Parish School Boards may enter into private contracts of insurance -without the approval of the Board of Trustees. La. R.S. 42:851 A(l)(b). When these boards opt to participate in the State Group Program after having been covered by another program, they are required to remain as a participant in the State Group Program for a minimum of three years. La. R.S. 42:851 D.

The Louisiana Legislature passed Acts 1988, No.902, effective September 8, 1988, designated La. R.S. 42:851 A(5)(b)(iii), which describes the method of | calculating the premiums for an entering school board group, referred to as “risk-rating”:

If a school board elects to participate in [the State Group Program] after participation in another group health and accident program, the premium rate applicable to [school board participants] intended to be covered by the program shall be the greater of the premium rate based on the loss experience of the group under the prior plan or the premium rate based on the loss experience of the classification into which the group is entering.

Acts 1988, No. 1009 also amended and reenacted La R.S. 42:851(A)(5)(b) to authorize the Board to group risks into three or more classifications, specifically providing that “there may be one classification for employees of eligible school boards.”

In the proceedings below, the parties stipulated to the following uncontested facts:

On September. 15, 1988, the Board of Trustees met and adopted a resolution addressing the entry of school boards into the Program. Although the resolution was never promulgated as a formal Rule, it was also never utilized since no school boards sought entry into the Program until October 1, 1993. On April 18, 1991, the Board of Trastees adopted an emergency rale providing, in pertinent part, that “risk-rating” of school boards entering the Program would be for a period of no longer than one year. A final rule implementing that provision was promulgated on September 20,1991.

The Monroe City School Board, the Tan-gipahoa Parish School Board, the St. Tammany Parish School Board and the Madison Parish School Board elected to 1 .¡participate in the Program, with effective dates between July 1991 and October 1992. Each school board was “risk-rated” for one year.

Thereafter, the Louisiana Legislature passed Acts 1992, No. 601, effective July 2, 1992, which became La. R.S. 42:881, providing as follows:

Notwithstanding any other provision of law to the contrary, if fifty percent or more of the employees of an entity which initially becomes a participant employer in the [State Group Program] on or after July 1, 1993, elect to be members of a health maintenance organization licensed to do business in this state, or on any successive July first following the initial enrollment of said entity, if more than fifty percent of the employees of said entity elect to participate in a health maintenance organization, the remaining employees of said entity participating in the health indemnity plan of the [State Group Program] shall be charged a premium rate for that fiscal year based upon their collective claims experience during the previous fiscal year, or that portion of the previous fiscal year during which they were members of the [State Group Program]. This Section shall have no effect upon entities participating in the [State Group Program] prior to July 1,1993.

Prior to the enactment of Act 601, the Board of Trastees had no authority to “risk-rate” any entity other than school boards, and the Board of Trustees was not “risk-rating” any group other than school boards.

On September 16, 1992, the Management Committee of the Board of Trustees met to discuss changes in the rules concerning school boards’ entry into the Program after July 1, 1993. On October 8, 1992, the Board of Trustees adopted a resolution providing that effective July 1, 1993, all new entities that do not have greater than 50% participation in the Program would be “risk-rated” upon entry and would remain “risk-rated” until there was greater than 50% participation in the Program in accordance with Act 601. Although the Board of Trustees published a Notice of Intent regarding this resolution in the November 19, 1992 Louisiana 1 (¿Register, no final rule regarding this resolution was ever adopted or published in the Register.

Thereafter, the East Feliciana Parish School Board elected to participate in the Program, with an effective date of October 1, 1993. Fewer than 50% of the eligible participants in this group had chosen to join an HMO, and the group was not “risk-rated.”

The Vernon Parish School Board elected to participate in the Program, with a September 1, 1999 effective date, and its group was “risk-rated” from that date until August 31, 2000. At all times during that year, fewer than 50% of the Vernon Parish School Board participants chose to participate in an HMO, and at the time of entry into the Program, 100% of the Vernon Parish School Board’s employees came into the Program.

The St. Landry Parish School Board elected to participate in the Program, with a January 1, 2000 effective date, and its group was “risk-rated” from that date until December 31, 2000. At all times during that year, fewer than 50% of the St. Landry Parish School Board participants chose to participate in an HMO.

At a meeting of the Board of Trustees in December 1999, representatives of the defendant School Boards requested that its participants not be “risk-rated” upon entry into the Program. The Board of Trustees denied this request and imposed premiums that were based upon the loss experiences of the group coverage from |7which each school board had departed. The resulting premiums were significantly greater than they would have been if the groups had not been “risk-rated.”

The Board of Trustees filed this suit asserting that the School Boards have demanded refunds of the premiums paid under the “risk-rating” concept. The Board of Trustees refused those demands, claiming that La. R.S. 42:851 A(5)(b)(iii) mandates the “risk-rating” which has occurred for these groups. Acknowledging that there is a substantial difference in the premiums depending upon whether La. R.S. 42:881 or La. R.S. 42:851 A(5)(b)(in) governs the entering premiums for these school board participants, the Board of Trustees sought a declaratory judgment declaring that it was entitled to “risk-rate” these participants upon their the entrance into the Program. Both School Boards reconvened, seeking a return of the additional premiums paid, and all parties filed motions for summary judgment.

In ruling on the motions, the trial court found that La. R.S. 42:881 (Acts 1992, No. 601) was controlling and that the School Boards qualified as entities that should not have been “risk-rated” when they entered the Program due to their participation in the HMO being less than 50%. The trial court reasoned that the introductory clause of Acts 1992, No. 601, “Notwithstanding any other provision of law to the contrary,” encompassed the “risk-rating” provision of La. R.S. 42:851 A(5)(b)(iii), because school boards were the only group being “risk-rated” at the time Act 601 was enacted. The trial court further determined that because the Board of Trustees had applied Act 601 to the East Feliciana Parish School Board |8and had decided not to “risk-rate” that group, the doctrine of contemporaneous construction supported a finding that Act 601 was applicable to the defendant School Boards. The trial court denied the Board of Trustees’ motion for summary judgment, granted the School Boards’ motions, and ordered the Board of Trustees to refund $2,529,434 plus legal interest to St. Landry Parish School Board and $1,573,948 plus legal interest to Vernon Parish School Board.

The Board of Trustees has suspensively appealed the trial court’s judgment, alleging the trial court erred in concluding that the School Boards’ participants had been improperly “risk-rated.” The Board .of Trustees has assigned error to both the denial of its motion and the granting of the School Boards’ motions for summary judgment.

The denial of the Board of Trustees’ motion for summary is an interlocutory judgment that is generally not appeal-able during the progression of a suit. La. C.C.P. art. 968 and Comment (d); La. C.C.P. art.2083. It may be reviewed, however, in an appeal of the final judgment in the suit. People of the Living God v. Chantilly, 251 La. 943, 207 So.2d 752, 753 (La.1968); Devers v. Southern University, 1997-0259 (La.App. 1st Cir.4/8/98), 712 So.2d 199, 209. Because the trial court’s judgment disposed of all of the relief prayed for by the parties, it is a final judgment. La. C.C.P. art. 1841. Therefore, it is appropriate for this court to review the trial court’s denial of the Board of Trustees’ motion for summary judgment in addition to reviewing the granting of the School Boards’ motions.

IJI. THE PARTIES’ CONTENTIONS

The parties generally agree that there are no disputed issues of material fact and that resolution of the motions for summary judgment hinge upon whether La. R.S. 42:851 A(5)(b)(iii) (Acts 1988, No. 902, § 1) or La. R.S. 42:881 (Acts 1992, No. 601) is controlling in determining whether the School Board participants are subject to “risk-rating” during their first year of participation in the Program.

The Board of Trustees contends that Acts 1988, No. 902 governs the school board participants’ entry into the Program during 1999 and 2000. Under the “risk-rating” provisions of Act 902, the premiums charged to an entering school board group are based actuarily upon the loss experience of that group. The Board of Trustees asserts the trial court committed a fundamental error in concluding that the enactment of Acts 1992, No. 601 resulted in an implied repeal of the 1988 legislation. The Board of Trustees argues that Act 902 specifically governs school board participants and “risk-rating” while Act 601 is more general in nature. It urges that the latter provision generally provides an additional basis for “risk-rating” some of the employees of “an entity” choosing to participate in the State Group Program when participation in an HMO exceeds a certain enrollment level. The Board of Trustees further argues that the two statutes do not conflict and that the statute that is -more specifically directed to the matter at issue should prevail over the statute that is more general in nature.

The Board of Trustees also argues that the principles of contemporaneous construction do not dictate a particular result solely because it did not “risk-rate” the East Feliciana Parish School Board upon its entrance into the program in | inOctober 1993. It asserts that if Acts 1992, No. 601 did not in fact change the 1988 legislative mandate to “risk-rate” all entering school board participants regardless of the 50% “floor” rule, then the Board of Trustees was not authorized to pass a resolution to the contrary.

Additionally, the Board of Trustees asserts there was a good reason for the legislature to treat the school board groups differently than other groups for purposes of “risk-rating”:

Since school boards were entitled to opt out of State Group when it began (a privilege not available to other entities) and since the employees of school boards are entitled to be treated as state employees for these purposes even though they actually are not, some special rules for [school board groups] are justifiable. When it was in their actuarial interest to do so, school board employees could choose to remain outside of State Group and pay lower premiums than those who were inside State Group. When their actuarial interest dictated entry into State Group (that is, when their premiums exceeded those that would be charged by State Group for similar coverage), they were statutorily entitled to enter — but not in such a way that would require the long-term participants in State Group to “subsidize” their entry when risk rating would result in a higher premium for the short period of one year.

Thus, the Board of Trustees contends that the School Board should be “risk-rated” based on principles of actuarial soundness and to promote fairness to long-term participants of the Program’s indemnity plan.

The School Boards contend that Acts 1992, No. 601 is controlling and that because fewer than 50% of its participants elected to enroll in an HMO, they should not have been “risk-rated.” The School Boards argue that because Act 601 contains the introductory clause of “notwithstanding any other provisions of law to the contrary,” the Act clearly provides that “risk-rating” is only authorized when 50% or more employees of an entity joining the Program are enrolled in an HMO. |nThus, their argument is that Acts 1992, No. 601 implicitly repealed the provisions of Acts 1988, No. 902 regarding “risk-rating” of school boards. Otherwise, the School Boards argue that if Act 601 is not applied to them, no effect is given to this introductory clause. Also in support of their position, the School Boards argue that the trial court correctly reasoned that a school board is an “entity” as encompassed within the meaning of Act 601.

The School Boards further argue that the Board of Trustees had not been “risk-rating” any group other than school boards prior to the passage of Act 601 and that the Board of Trustees acknowledged that Act 601 changed the law when it failed to “risk-rate” the East Feliciana Parish School Board. The School Boards also contend that the legislature intended that Act 601 would apply to school boards.

III. ANALYSIS

A. Summary Judgment Law and Standard of Review

Summary judgment procedure is favored in Louisiana. La. C.C.P. art. 966 A(2). A motion for summary judgment shall be granted when the mover can show “that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. In the present case, we address only a legal issue since there are no material issues of fact that are disputed. When addressing a legal issue, a reviewing court gives no special weight to the findings of the trial court. It conducts a de novo review of questions of law and renders a judgment on the record. Campbell v. Markel American Ins. Co., 2000-1448 (La.App. 1st Cir.9/21/2001), 822 So.2d 617, 620, writ denied, 2001-2813 (La. 1/4/02), 805 So.2d 204.

B. Statutory Construction

Statutory interpretation is the province of the judicial branch of State government. Hoag v. State, 2001-1076, p. 8 (La.App. 1st Cir.11/20/02), 836 So.2d 207. Our interpretation is guided by various principles pertaining to statutory construction. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. La. C.C. art. 9; La. R.S. 1:4. Further, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10. And when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.

Pursuant to the standard rules for statutory construction developed in the jurisprudence: 1) it is presumed that every provision of law was intended to serve some useful purpose; 2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; 3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; 4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and 5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part l13of the act nugatory. Hoag v. State, 2001-1076, pp. 30-31; 836 So.2d 207. Additionally, rendering the whole, or a part, of a law meaningless is the last option available to a court when it interprets a law. Id. at pp. 31, 836 So.2d 207. Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences. Progressive Sec. Ins. Co. v. Foster, 1997-2985 (La.4/23/98), 711 So.2d 675, 684.

Also pertinent is the general law on repeal by implication as set forth in State v. Craig, 1993-2515 (La.5/23/94), 637 So.2d 437, 443:

Repeals by implication require a determination of whether there is some indication of a legislative “intention to repeal” the statutes in question. State v. Randall, 219 La. 578, 53 So.2d 689, 691 (1951). Such implied repeals are “not favored and will not be indulged if there is any other reasonable construction.” State v. Standard Oil of La., 188 La. 978, 178 So. 601, 626 (1973)[1937], A repeal by implication requires “nothing short of irreconcilable conflict between two statutes.” Id.

C. Effect of Acts 1992, No. 601 on Acts 1988, No. 902

In the present case, the parties’ contentions demonstrate that the two statutory provisions under consideration are not entirely free from ambiguity regarding the practice of “risk-rating” as applied to school boards. But we also find in this instance that a review of the legislative history pertaining to Acts 1992, No. 601 does not clarify a specific legislative intent to change the practice of “risk-rating” school boards that had been in effect since 1988, as suggested by the School Boards. Thus, in keeping with the rules addressing statutory construction, |uwe find that the legislature intended that both statutory provisions would have effect and that Act 601 did not implicitly repeal the existing legislation addressing “risk-rating” of school boards.

Act 601 of 1992 began as Senate Bill No. 352 of the 1992 Regular Session. As originally introduced, the bill did not address the concept of “risk-rating” but merely prohibited employees of an entity from participating in the Program if 50% or more of the employees of that entity were members of an HMO. The bill was assigned to the Senate Committee on Insurance. An amendment was proposed providing that initial entry was contingent upon less than 50% participation in the HMO, and after initially entry into the plan, if a group’s HMO enrollment increased to more than 50%, “risk-rating” would be imposed upon the remaining indemnity plan participants. The following excerpt from the April 29, 1992 minutes of the Insurance Committee meeting indicates that the legislature considered the impact of HMO enrollments on the viability of the Program’s indemnity plan:

Senate Bill No. 352 by Senator Hollis provides for eligibility in the State Employees Group Benefits Program for certain entities with employees participating in a HMO or PPO.
Senator Hollis explained the amendment to the bill which is the basis of the plan. He stated that one of the problems in group benefits is the fact that HMOs are coming in and taking the healthy, young people and the indemnity plan is left over. This would only apply to new agencies coming into the plan. It would provide that these agencies must first of all have no more than fifty percent participation in the HMO. If, after they come in, the group drops below the fifty percent standard, the remaining employees will have to pay premiums calculated according to their group’s claims, rather than the statewide premiums currently paid by employees.

The bill was amended, as proposed, and ordered to the House. In the House, the matter was referred to the Committee on Appropriations, where further 11Ramendments were considered and adopted to provide for “risk-rating” of participating employees rather than the prohibition of membership when HMO enrollment was 50% or greater. As amended, the bill was ultimately enrolled as Act No. 601. The following excerpts of the minutes before the House Committee are relevant:

Senator Hollis indicated that there are amendments to Senate Bill No. 352. Jean Vandal explained that the amendments provide that in the event of 50% of employees in a state agency joining a[HMO], the remainder of the employees will be considered and rated prior to their acceptance into the group benefits plan.
Senator Hollis further explained that if the membership in the HMO is less than the 50%, the remainder group will not be rated.
Representative Long asked if the amendments being offered were prompted by the objections of the education group. Mr. Plaisance confirmed as much as possible while still protecting the current members of [State Group].

These minutes evidence that the impetus for the proposed amendment may have originated from the “education group” or the school board coalition. However, because Senate Bill No. 352, as originally proposed, would have resulted in denial of membership to the school boards in certain instances, it is logical that the school boards would have opposed it and that the legislature may have adopted these amendments in part because of their opposition. It is not logical to assume, however, that the legislature necessarily intended that these amendments would nullify the “risk-rating” scheme already in effect for school boards under Act. No. 902. The legislative history contains no such discussion but rather reveals a primary interest of protecting the Program’s indemnity plan from the negative hfieffects of increased participation in the HMO plans by authorizing “risk-rating” for any participating group when 50% or more of the group is enrolled in an HMO.

Applying the rules pertaining to statutory construction, we conclude that the legislature used the language, “Notwithstanding other provisions of law to the contrary” to establish that there would be no exceptions to “risk-rating” if the 50% floor requirement (for any group entering or participating in the indemnity plan) was not met. Thus, without exception, if enrollment in HMO plans was 50% or greater, the group’s remaining participants would be “risk-rated.” All Program participants, including groups other than school boards, are subject to this general provision of law.

Implicitly, Act 601 also sets forth the converse general principle that if the group’s enrollment in HMO plans is less than 50%, the group’s remaining participants will not be “risk-rated.” But Act 601 does not set forth that this converse rule is without exception. La. R.S. 42:851 A(5)(b)(iii) (Acts 1988, No. 902), the more specific legislation applicable to school boards, in effect, maintains an exception to that general rule. The legislative history does not reveal a contrary intent. Indeed, we find no indication that the legislature intended to repeal La. R.S. 42:851 A(5)(b)(iii). We must presume that the legislature had full knowledge of the 1988 legislation when it enacted the 1992 legislation and intended that both provisions of law would be given effect. Accordingly, because both provisions of |17law can be given reasonable and practical effect, we find that Act 902 of 1988 was applicable to the defendant School Boards upon their entrance into the Program and that the Board of Trustees properly “risk-rated” them.

D. Contemporaneous Construction

Additionally, we find no merit in the School Boards’ arguments regarding application of the doctrine of contemporaneous construction. Under this doctrine, when an administrative body has, over a long period of time, placed an interpretation upon a legislative enactment, that interpretation is given substantial and often decisive weight in the legislation’s interpretation. State v. BP Exploration & Oil, Inc., 96-0716 (La.1/14/97), 686 So.2d 823, 828. The facts do not establish that the Board of Trustees consistently interpreted Acts 1992, No. 601 to provide that school boards entering the Program would not be “risk-rated” when the group had 50% or less participation in HMO plans; there was only one instance in which the Board of Trustees applied the Act in this manner, i.e., when it did not “risk-rate” the East Feliciana Parish School Board. Further, while contemporaneous administrative construction of statutes administered by that agency is a persuasive indication of the true meaning of a statute, an administrative interpretation cannot be contrary to the legislative will as expressed in those statutes, and determination of the legislative intent is a judicial matter. Sales Tax District No. 1 v. Express Boat Co., 500 So.2d 364, 370 (La.1987); Boyd v. Louisiana Real Estate Com’n., 581 So.2d 304, 306 (La.App. 1st Cir.1991). An administrative construction cannot have weight where it is contrary to or inconsistent with the statute. Jurisich v. Jenkins, 1999-0076 (La.10/19/99), 749 So.2d 597, 602, citing Traigle v. PPG Indus., Inc., 332 So.2d 777, 782 (La.1976).

Accordingly, because we find the legislature intended that both Acts 1988, No. 902 and Acts 1992, No. 601 would be given effect and that Act 902 specifically regulates “risk-rating” of school boards, we find that the Board of Trustees’ failure to “risk-rate” the East Feliciana Parish School Board is not determinative of whether Act 902 is applicable to the defendant School Boards.

IV. CONCLUSION

For the above reasons, we find that the Board of Trustees has established it is entitled to judgment as a matter of law. Accordingly, we reverse the trial court’s judgment in all respects. We render judgment in favor of the Board of Trustees, declaring that Acts 1988, No. 902 (former La. R.S. 42:851 A(5)(b)(iii)) was applicable to the defendant School Boards upon their entrance into the Program and that the Board of Trustees properly “risk-rated” them under the provisions of that Act. The Vernon Parish and St. Landry' Parish School Boards are each assessed with appeal costs in the amount of $388.75.

REVERSED AND RENDERED.

      . Unless otherwise noted, all subsequent references to La. R.S. 42:851 and 42:881 address these statutory provisions as they read prior to their amendment and reenactment by Acts 2001, No. 1178, § 5, which is not applicable to the issue raised in this case.

      . After this suit was filed, the powers of the Board of Trustees were transferred to the Office of Group Benefits within the Division of Administration. La. R.S. 36:4 and 42:801.

      . Vernon Parish School Board paid $1,573,948 more than it would have paid if it had not been "risk-rated.” St. Landry Parish School Board paid $2,529,434 more than it would have paid if it had not been "risk-rated.” These süms were paid by the respective school board and not by the individual participants.

      . Since school boards were already subject to "risk-rating,” the legislation finally enacted was more favorable for the school boards than the initial Senate bill proposal, which would have mandated that all entities, including school boards, would not have been eligible to participate in the plan if the HMO participation was 50% or higher.

      . We disagree with the contrary analysis set forth in Louisiana Attorney General Opinions No. 00-22 (March 30, 2000) and No. 00-44 (April 10, 2000).

      .Although not determinative of the issue before us, we note that the law currently provides for "risk-rating” of all state departments, agencies, school boards, political subdivisions or other public entities electing to participate in the state group health and accident insurance program after participating in another group health and accident program. La. R.S. 42:851 A(4)(b)(iii).


author: 1WOODARD, Judge.

text:
    Billi’Jo C. GUIDRY v. EAST COAST HOCKEY LEAGUE, INC., et al.
    No. 02-1254.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied April 23, 2003.

      Warren D. Rush, Charles M. Rush, Rush Rush & Calogero, Lafayette, LA, for Plaintiff/Appellant Billi’Jo C. Guidry.
    Leslie J. Schiff, Schiff Law Corporation, Opelousas, LA, for Defendants/Appellees Louise White C. De Castro, L. Felippe C. De Castro, & PCI, International Consultants Inc.
    Henry C. Perret, Jr., Frank S. Slavich III, Perret Doise, Lafayette, LA, for Defendants/Appellees East Coast Hockey League & Richard Adams.
    Charles M. Pisano, Walter C. Thompson, Jr., Barkely & Thompson, New Orleans, LA, for Defendants/Appellees Bob F. Wright & Entertainment Venture Associates L.L.C.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   1WOODARD, Judge.

Ms. Guidry appeals the trial court’s grant of exceptions of no right of action and/or no cause of action in the Defendants’ favor, as well as the trial court’s protective order limiting her discovery. We find that the Defendants did not offer sufficient evidence that conclusively demonstrates that Ms. Guidry has no right of action against them. Furthermore, her petition’s allegations, if true, state a cause of action. Based on the evidence in the record, we find that the trial court’s grant of these exceptions was premature and that she should be permitted discovery. Therefore, we reverse and remand for further proceedings.

* * * * *

Ms. Billi’Jo Guidry filed suit against East Coast Hockey League (ECHL) and its President, Mr. Rick Adams; Entertainment Venture Associates (EVA) and its co-owner, Mr. Bob Wright; and PCI International Consultants, Inc. (PCI) and its owners, Felippe and Louise De Castro'.

ECHL is a non-profit corporation that operates a hockey league, consisting of members who play ice hockey against one another. EVA is a co-owner of The Louisiana Ice Gators Hockey Team (IceGa-tors), a member of ECHL. Its membership requires IceGators to observe ECHL’s rules and regulations. Ms. Guidry alleges that all Defendants were involved in an elaborate scheme to pay certain IceGators players additional monies, exceeding the salary cap which ECHL established.

Specifically, she contends that Mr. Wright was writing checks to PCI/De Castros to be deposited in a dummy account in Miami, Florida. Subsequently, PCI/DeCastros wired the money to an account it held in Lafayette, Louisiana from which it wrote checks to the players, one of whom picked up the checks at the De-Castros’ offices every 2 weeks. Ms. Gui-dry knows of this alleged scheme because she worked for PCI/DeCastros, and asserts that she, even, typed the envelopes for these checks. PCI/DeCastros fired her in May 2001.

She reported the violations to Mr. Adams, ECHL’s President, but no fines were levied. She alleges that, under ECHL’s By-Laws and rules and regulations, she is entitled to any fine levied because of her unveiling the scheme and reporting the violations. However, she maintains that no fines resulted because Mr. Adams did | ^nothing to pursue an investigation of the claim since he is Mr. Wright’s close, personal friend. Accordingly, she argues that he became a party to the conspiratory scheme by not investigating her allegations.

She also urges that ECHL rules provide escalating fines for each violation and that, based upon the number of fines previously imposed, the next fine assessed would amount to $400,000, of which she is entitled to one-half. She contends that no fine has been levied in this case, only, because of the conspiracy among the Defendants. Therefore, they have, either, violated a contract with her or tortiously interfered with a contract to which she was a party or a third-party beneficiary.

All Defendants filed exceptions of no cause of action. Additionally, all Defendants except for PCI and the DeCastros filed exceptions of no right of action. Before the trial court heard these exceptions, it gave an order regarding discovery in the case. Specifically, it ordered that responses to certain outstanding subpoenas, which Ms. Guidry had issued, be produced in camera and under seal, effectively preventing her from seeing or using them to support her allegations. It also placed limitations on the discovery she sought from PCI, and it issued a protective order that stayed all pending and future discovery, until the exceptions could be heard. Ms. Guidry alleges that the trial court abused its discretion in issuing these discovery orders and that she was prejudiced by being denied access to information that she could have used to defend the exceptions.

After a hearing, the court granted the exceptions of no cause of action and no right of action, emphasizing its finding that Ms. Guidry had no right of action. Ms. Guidry appeals, both, the issuance of the discovery orders and the grant of the Defendants’ exceptions. All Appellees answer and request sanctions for a frivolous appeal.

Initially, we must decide whether the trial court was correct in granting the exceptions and, if so, whether it abused its discretion in issuing the discovery orders, in effect, preventing Ms. Guidry from fully defending the exceptions.

While a right of action and a cause of action are similar concepts, each has a very different focus. The inquiry into whether a right of action exists concentrates on whether the plaintiff is the proper party to bring the suit and obtain the remedy, while the inquiry into whether a cause of action exists concerns whether the law provides any remedy for the specific injury that is alleged. Thus, while cause of | ¡¡action answers whether there is a remedy, right of action answers whether the particular plaintiff is the proper party to obtain the remedy. Evidence may be presented on whether a right of action exists. No evidence may be presented to aid in the inquiry of whether a cause of action exists. In the latter, we must presume that the mover’s allegations are true.

* * * * *

Exception of No Right of Action

Whether Ms. Guidry has a right of action is a question of law, requiring a de novo review. To affirm the trial court’s grant of this exception, we must find that Defendants have established that she has no interest in the subject matter of the suit or no legal capacity to proceed with it.

Since the function of this exception is to terminate the suit, we should deny the exception if we can reasonably “construe the pleadings in a way that enables them to ‘afford litigants their day in court, to arrive at the truth, and to do substantial justice’ .... so as to afford the litigant an opportunity to present his evidence.” Notwithstanding, defendants may present evidence to demonstrate that a plaintiff does not have a right of action.

In her original petition, Ms. Guidry asserts that ECHL’s By-Laws and rules and other regulations provide for one-half of any fine levied “to be paid to the ‘whistle-blower’ who informs ECHL of a particular league salary cap violation.” Her supplemental petition contains a copy of ECHL’s By-Laws. We have reviewed them in their entirety and find no such provision as she alleges. In fact, the ByLaws directly contradict this assertion. The By-laws’ relevant provision, Rule 9.6 E, states;

14Whistleblower Program. In order to encourage the reporting of salary cap violations and other violations of the League Agreements, the President shall have the authority, in the exercise of his sole discretion, to award a portion of any fine levied under the provisions of this Article to any person(s) who provide(s) accurate information which proximately results in a final decision against any Member, employee, or Related Entity for a salary cap violation or other violation of the League Agreements (“Whistleblower”). The President shall use his best efforts to keep the identity of the Whistleblower confidential, but neither the President nor the League shall have any obligation to the Whistle-blower to maintain confidentiality.
(1) By the act of submitting information to the President, the Whistleblower understands, acknowledges, and agrees that there is no entitlement as a matter of right to any payment by the League of any portion of any fine subsequently levied by the President against the Member, employee, or Related Entity.
(2) After receipt of the fine by the League, the President will determine what amount, if any, the Whistleblower shall be paid and shall forward the funds to the Whistleblower within a reasonable time. The compensation paid to the Whistleblower shall be disclosed to the Board.

(Emphasis added.)

The trial court relied on these provisions to find that Ms. Guidry has no right of action to pursue any of her claims because these provisions demonstrate that she would not be entitled to any remedy even if all of her allegations were true. We find that this argument more appropriately addresses whether she has a cause of action rather than a right of action. This is because the whistleblower’s entitlement or lack of entitlement under the provisions centers around whether the law would afford a remedy instead of whether she is the proper person to pursue the action. Thus, we will address this theory in our “no cause of action” analysis.

Ms. Guidry supports her argument that she has a right of action under the above provision of the By-laws by analogizing it to an offer of a public reward. She asserts that even if, ultimately, she is not entitled to a portion of any fine levied, she became a party or third-party beneficiary of a contract at the moment she reported the information of the salary cap violations. Accordingly, ECHL and its President simultaneously incurred the obligation to act in good faith to execute the contract, which she believes requires ECHL and its president to make a good faith effort to investigate her allegations and, at least, make the determinations of whether to levy a fine and whether to award her a portion of the fine.

| ¡While we do not necessarily accept her analogy, we do believe that her analysis is correct. Generally, an outsider of a company has no right to require that the company’s By-laws be enforced. Notwithstanding, the By-laws in this case reference “whistleblowers” and, impliedly, created a potential obligation on behalf of the entity. This obligation is directed to “any person” without qualification regarding employee status. Thus, when Ms. Gui-dry, a former employee of an associated company, reported the alleged salary cap violations, she became the “whistleblower” to which the provision refers. We find that her action of reporting the violations constituted performance under an aleatory contract and transformed the above provisions into such a contract.

“A contract is aleatory when, because of its nature or according to the parties’ intent, the performance of either party’s obligation, or the extent of performance, depends on an uncertain event.” The uncertain event in the instant case is whether a fine is levied. A contract was formed at the moment Ms. Guidry fulfilled the “whistleblower” function. Thus, ECHL and its President acquired a duty to act in good faith at that same moment. In this case, ECHL’s and its President’s obligation to perform or the extent of its performance in deciding whether to give Ms. Guidry a part of the fine depends on whether a fine is, even, levied. As a party to that contract, Ms. Guidry has a right of action to seek its enforcement. In other words, she has a right to require ECHL to act in good faith. While its obligation is not automatically to pay her any portion of the fine, there is an implied obligation that the President determine what amount, if any, she should receive, and this determination must be made in good faith. We do not see how the President could make this determination in good faith without thoroughly investigating her allegations. Accordingly, the President’s actions leading up to his decision of whether to levy a fine must also be taken in good faith. Further, since we have determined that she was a party to a contract with ECHL, we must also recognize that she has a right of action against the additional Defendants, at least, for their alleged tortious interference with that contract.

| r,Exception of No Cause of Action

An exception of no cause of action requires us to test the legal sufficiency of Ms. Guidry’s pleadings. In other words, considering that she is a proper plaintiff, we must ascertain whether the law provides for any way to remedy the specific injuries she allegedly suffered. In making this determination, we must presume that every allegation in her petition is true.

As we discussed, even though, ultimately, she may not be entitled to any monetary remedy under the law, she is entitled to have ECHL observe, in good faith, its By-laws’ provisions which affect her as a ‘Whistleblower.” Performing in good faith under a contract is, indeed, a remedy which the law unequivocally provides to each party of a contract.

Furthermore, Ms. Guidry’s petition alleges that ECHL’s By-Laws and rules and regulations entitle her to a portion of any levied fee because of her information. However, Defendants did not provide the rules and regulations before the trial court stayed discovery. Thus, we have, only, the By-Laws, not the rules and regulations, to refute her allegations. In its brief, ECHL claims that it has no “rules and regulations.” However, the By-Laws require that the Board promulgate:

a set of regulations (“Regulations”) including by way [sic] example but not limitation the determination of the League Championship, the conduct and scheduling of ice hockey games among the Members, player contracts, the establishment of a roster of players for each Member, the selling, assigning and trading of player contracts and such other matters as pertain to the general welfare of hockey operations in the League. Each Member agrees to be bound by the Regulations as may be amended from time to time.

(Emphasis added.)

While ECHL admits that it has “Rules which govern the playing of games and separate Regulations which cover inter-league play,” it asserts that “[n]either addresses the escalating fines claimed by Guidry in her brief.” We do not find these assertions, absent copies of the rules and regulations, sufficient to rebut Ms. Gui-dry’s ^allegations. While there may not be any provisions providing for escalation of the fines based on the number of previous fines, ECHL does not assert that the fines are not addressed at all in the rules and regulations. Indeed, we believe that there must be provisions relating to the salary cap impositions within these rules and regulations, because the By-Laws do not state the salary cap amounts. Thus, we are left to speculate what else the rules and regulations might provide pertaining to the salary cap violations and whistle-blower provisions.

While we assume that the rules and regulations, enacted pursuant to the By-Laws, are not inconsistent with them, courts’ assumptions are inadequate to support a decision to affirm the trial court’s ruling, abrogating any possibility, at this early juncture, for Ms. Guidry to pursue her claims. The “Whistleblower” provisions were added to the By-Laws in August 1998. We cannot be certain whether the idea was entirely new and these provisions were the first to implement the program in any way, or whether, for example, there were more stringent requirements, initially, in the rules and regulations, which the board sought to change in these new By-Laws provisions. Thus, the fact that the By-Laws, standing alone, do not prove Ms. Guidry’s assertion, this is insufficient to defeat her claims. In other words, even though ECHL’s By-Laws do not entirely support her allegations, in the context of an exception of no cause of action, we must assume that the rules and regulations do, as she has alleged.

Moreover, after reviewing the By-laws, we question the location of the additional provisions regarding salary cap violations. In fact, it appears that they may be contained in each member’s “Interleague Agreements” as opposed to the “Rules or Regulations.” Nonetheless, in filing these exceptions, it was the Defendants’ burden to prove that the rules and other regulations do not say what Ms. Guidry alleged. The document is the best evidence. Ms. Guidry was not required at that early stage of the proceedings to offer any proof to support her allegations.

Assuming that the rules and regulations state what she alleges they do — that a “whistleblower” is entitled to one-half of any fine levied — we find that she has a right and cause of action, based on, at least, detrimental reliance and/or contract law. At the very least, she is entitled under the law to force ECHL to act in good faith in compliance with its By-Laws which affect her. Furthermore, because a right of action against ECHL creates a right of action against the other Defendants, a cause of action ^against ECHL creates a cause of action against the other Defendants, as well. If Ms. Guidry’s conspiracy theory is true, all of the Defendants have prevented ECHL from acting in good faith under its contract, creating a domino effect, resulting in each Defendant tortiously interfering with her contract with ECHL.

Consequently, we find that the court’s decision, granting the exceptions of no cause of action and no right of action, was premature, and we reverse.

Protective Order/Frivolous Appeal

Given our reversal, a discussion of whether the discovery orders prevented Ms. Guidry from fully defending the exceptions is moot, as they were only in effect until the exceptions could be ruled upon. However, we note that discovery statutes must be construed liberally so as to allow the parties to discover the true facts, compelling disclosure of such facts wherever they may be found, and to allow the parties to obtain all facts pertinent to the litigation. Presumably, now, Ms. Guidry’s right to full discovery will be permitted.

Obviously, we find no frivolous appeal.

CONCLUSION

We reverse the trial court’s ruling, granting the Defendants’ exceptions of no right of action and/or no cause of action and remand the case for further proceedings to allow Ms. Guidry her right to full discovery. We assign all costs of this appeal to the Appellees, equally.

REVERSED AND REMANDED.

      . Roger Boc, L.L.C. v. Weigel RTG, Inc., 99-570 (La.App. 3 Cir. 11/3/99); 744 So.2d 731.

      . Mississippi Land Co. v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02); 817 So.2d 1200.

      . Dugas v. Dugas, 01-669 (La.App. 3 Cir. 12/26/01); 804 So.2d 878, writ denied, 02-0652 (La.5/24/02); 816 So.2d 307.

      . Goulas v. Denbury Management, Inc., 00-935 pp. 4-5 (La.App. 3 Cir. 12/6/00); 774 So.2d 346, 349; La.Code Civ.P. art. 927(A)(5).

      . Arcadian Corp. v. Olin Corp., 97-174 (La.App. 3 Cir. 6/18/97); 698 So.2d 9.

      . La.Civ.Code art.1912.

      . Roger Boc, L.L.C., 744 So.2d 731.

      . La.Civ.Code art. 1983.

      . Roger Boc, L.L.C., 744 So.2d 731.

      . State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-0458 (La.App. 3 Cir. 6/20/01); 790 So.2d 673.


text:
    Clara Virginia F. SOILEAU v. ABC INSURANCE CO., et al.
    No. 02-1301.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied May 21, 2003.

      Robert L. Cabes, Milling, Benson, Woodward, L.L.P., Lafayette, LA, for Plaintiff/Appellant, Clara Virginia F. Soi-leau.
    Larry Lane Roy, Dawn L. Morris, George Edward Williams, Jr., Preis, Kraft, Roy, Lafayette, LA, for Defendants/Appel-lees, St. Thomas More Catholic High School, Bishop Jules B. Jeanmard, Center for Religious Formation, Inc.
    Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and BILLY HOWARD EZELL, Judges.
   1WOODARD, Judge.

Ms. Soileau appeals a summary judgment in favor of STM. The trial court found that La.Civ.Code arts. 2298 and 2299 were inapplicable to her claims and, therefore, she could not be entitled to any recovery, as a matter of law. We affirm.

Ms. Melinda Colville, a CPA, performed accounting services for both the Plaintiff, Ms. Clara Virginia F. Soileau, and the Defendant, St. Thomas More Catholic High School and Bishop Jules B. Jean-mard Center for Religious Formation, Inc., (STM). Ms. Colville stole money from both Ms. Soileau and STM; both were innocent victims in a complex, fraudulent scheme that Ms. Colville carried out by transferring their funds, along with funds of other clients, among various accounts. Specifically, her scheme included stealing money from STM by obtaining checks made out to STM, which she was supposed to invest for it. Instead, she secretly opened an account in its name, deposited the checks into that account, and then withdrew money from the account for herself. She was stealing money from Ms. Soileau by forging checks on her accounts and generating fake stock certificates after selling Ms. Soileau’s stock. A review of the record reveals that both parties trusted Ms. Colville and, accordingly, were not very diligent in overseeing her actions, allowing her scheme to continue for a period of years.

In 1996, because of a phone call from one of its banks, STM became suspicious of Ms. Colville’s activities and began to demand more specific accountings of its funds. Ms. Colville responded to this increasing pressure by gradually replacing STM’s missing funds until she was able to reconcile the actual balances with the reported balances. She accomplished this, in part, by forging checks on Ms. Soileau’s account for deposit into one of STM’s accounts. Then, she forged checks for additional money to the account she had secretly opened in STM’s name and others to an account in her own name, before transferring this money, as well, into one of STM’s accounts.

Ms. Soileau sought a return of these funds from STM. She alleges that La. Civ. Code art. 2299 or, in the alternative, La. Civ.Code art. 2298 entitles her to a return of the funds that Ms. Colville directly transferred from Ms. Soileau’s account Lto STM and that La.Civ.Code art. 2298 entitles her to the return of the funds that were indirectly transferred. STM argues that neither of these articles are applicable to STM and any claim Ms. Soileau could have lies in conversion; therefore, it has prescribed.

The trial court found both articles to be inapplicable and granted STM’s summary judgment motion. Ms. Soileau appeals this judgment.

We must decide whether, either, La.Civ. Code art. 2299 or art. 2298 is applicable to Ms. Soileau’s claim.

Standard of Review

Since the trial court decided the inapplicability of Articles 2299 and 2298 in a summary judgment, our review is de novo. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue regarding a material fact, and that the mover is entitled to judgment, as a matter of law. In the instant case, there are no material facts in dispute; rather, the dispute involves only the question of whether La.Civ.Code arts. 2298 or 2299 are applicable to the undisputed facts.

Nature of Claim

STM argues that, even though Ms. Soileau has styled her claim as quasi-contractual, it is, substantively, a tort claim based on conversion. “Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession (permanently or for an indefinite time) is a conversion.” We agree that the most obvious action available to Ms. Soileau is for conversion. However, jurisprudence encourages parties to assert all possible theories of liability or causes of action as long as they are based on the facts and warranted by existing law or a 13good faith argument for an extension of existing law. Therefore, we will entertain her allegations and proceed with an analysis of the applicability of these articles.

La.Civ.Code art. 2299

This article provides:

A person who has received a payment of a thing not owed to him is bound to restore it to the person from whom he received it.

(Emphasis added.)

Ms. Soileau asserts that the act of depositing the checks into STM’s account constitutes a “payment,” which she did not “owe” to STM; accordingly, STM is bound to restore it to her.

Contrarily, the trial court found that:

[T]his provision of the code is limited to the situation in which one person gives something of value to another because of a perceived obligation to that other, when in fact no obligation exists. It does not apply when a third party, who is not acting as the agent of either the giver or the receiver is the conduit.
In this case, an essential element of Art. 2299 is missing — the direct relationship of two parties interacting, one as the giver of a payment or thing and the other as the recipient of the payment or thing. This article contemplates a voluntary giving of a payment to another by one who believes he owes that other, when in fact he does not. The plaintiff did not pay anything to the defendant in this case, and there is no issue of a perceived, but mistaken, obligation to pay.
Additionally, since Ms. Colville had access to the accounts of her victims and accomplished the series of thefts through the use of bank accounts, checks and negotiable instruments, it is impossible to say that the “same funds” stolen from the plaintiff were later deposited in the account of the defendant. It is the nature of banking that all funds are deposited to and withdrawn from the accumulated funds of the bank and its customers. Funds lose their individual identity as they proceed through the banking process. As the defendant points out, the dollar that is deposited today is not necessarily the same dollar that is withdrawn tomorrow.

[4We agree with the trial court’s analysis. There was not a direct transfer of any funds from Ms. Soileau to STM. Although an amount of STM’s funds can be directly “traced” to Ms. Soileau’s accounts, Ms. Colville and the bank stand in the middle. Ms. Soileau has not provided any applicable authority to the contrary. The cases she has cited for support that Article 2299 does not require a direct relationship are not persuasive, as those cases involved married couples and their community property. Accordingly, we agree that Article 2299 is inapplicable, as it does not contemplate this type of situation.

La.Civ.Code art. 2298

La.Civ.Code art. 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 trial court found this article to be inapplicable because STM was not “enriched” but, rather, was in the same position it had been in before the thefts occurred. Ms. Soileau argues that transfer of some of her funds prevented STM from incurring the economic loss that, otherwise, would have resulted; therefore, STM has been enriched. However, we need not decide the correctness of her argument as she has failed to show that she does not have another practical available remedy elsewhere. Such a showing is required to recover under Article 2298, as it is only a subsidiary remedy. Ms. Soileau has received a settlement from the banks and has also obtained a judgment of restitution against Ms. Colville. However, she argues that we should discount this judgment based on the improbability that she will ever collect it. Her ability to execute the judgment is not a factor in determining the practicality of the remedy. The judgment, itself, is evidence that the law provided her with another practical available remedy. Accordingly, we find that Article 2298 is also inapplicable to Ms. Soileau’s claims and affirm the trial court’s judgment.

| ..CONCLUSION

We find that La.Civ.Code arts. 2299 and 2298 do not encompass the type of claims that Ms. Soileau asserts in the instant action. Consequently, we affirm the trial court’s grant of summary judgment to STM and assign the costs of this appeal to her.

AFFIRMED.

      . La.Code Civ.P. art. 966(B).

      . Broussard, Bolton, Halcomb & Vizzier v. Williams, 01-219, p. 7 (La.App. 3 Cir. 10/3/01); 796 So.2d 791, 795 (quoting Simon v. Fasiq-Tipton Co., 92-173, p. 25 (La.App. 3 Cir. 3/22/95); 652 So.2d 1351, 1369).

        . Alexis v. Metropolitan Life Ins. Co., 604 So.2d 581 (La.1992).

      . See Gardes Directional Drilling v. Bennett, 01-80 (La.App. 3 Cir. 6/6/01); 787 So.2d 1201, writ denied, 01-1991 (La.10/26/01); 799 So.2d 1154; First State Bank & Trust Co., v. Fireman’s Fund Ins. Co., 399 So.2d 729 (La.App. 1 Cir.1981).

      . See Carriere v. Bank of Louisiana, 95-3058 (La.12/13/96); 702 So.2d 648.


author: 2CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Majuangy D. EVANS.
    No. 02-KA-1108.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2003.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for State.
    Bertha M. Hillman, Thibodaux, LA, for defendant-appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   2CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On March 27, 2001, the Jefferson Parish District Attorney filed a bill of information charging defendant, Majuangy D. Evans, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A), which allegedly occurred on or about March 7, 2001. Defendant was arraigned on March 28, 2001 and pled not guilty. On August 28, 2001, the case was tried before a jury, which found defendant guilty as charged. Defense counsel orally moved for an appeal. The trial judge noted defense counsel’s motion, but suggested to her that she might want to file some post-trial motions. The trial judge told her that they had to wait for sentencing, and that if she still wanted to appeal, she could file her motion at that particular time. Defense counsel indicated she understood.

On August 30, 2001, the state filed a multiple bill alleging defendant to be a third felony offender. On October 11, 2001, the trial court sentenced defendant to imprisonment at hard labor for 30 years without benefit of parole, probation, or suspension of sentence. Defendant denied the allegations of the multiple bill on that same date and orally moved for an appeal. On October 17, 2001, defendant filed a written motion for appeal that was granted. Defendant filed a combined | amotion to reconsider sentence and motion for appeal on November 15, 2001. The motion for appeal was granted, and the motion to reconsider sentence was set for hearing on November 27, 2001. The record does not indicate that this motion was ever ruled upon.

On January 31, 2002, the state amended the multiple bill to a double bill. Also on that date, the trial court found defendant to be a second felony offender, vacated the original sentence, and sentenced defendant to imprisonment at hard labor for 45 years without benefit of probation or suspension of sentence. Defendant orally moved for reconsideration of sentence, but the trial judge stated he would “take it up” when defendant filed it.

ASSIGNMENT OF ERROR NUMBER ONE

This assignment of error seeks review of the appellate record for an error patent. Defendant specifically argues that he made an oral motion to reconsider sentence after the trial judge imposed the enhanced sentence, but that the motion was never considered by the trial court. He requests that this Court remand the matter for a ruling on his motion to reconsider sentence.

On appeal, defendant does not challenge the trial court’s failure to rule on his first motion to reconsider sentence. Rather, he argues that the trial court erred by fading to rule on the oral motion to reconsider sentence he made after the enhanced sentence was imposed. Defendant contends that this matter should be remanded for a ruling on his motion. We will address the trial court’s failure to rule on both motions.

Defendant was originally sentenced on October 11, 2001. He did not orally move for reconsideration of his sentence. On November 15, 2001, defendant filed a combined motion to reconsider sentence and motion for appeal. The trial judge signed the order located at the bottom of the motion, thereby granting the motion for appeal. The trial judge, in that same order, set the hearing on the motion to | ¿reconsider sentence for November 27, 2001. The record does not indicate that this motion to reconsider sentence was ever ruled upon.

LSA-C.Cr.P. art. 916 provides in pertinent part:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.

The state argues that the trial judge had no jurisdiction to take any action on this motion to reconsider sentence because he had already signed the order granting the motion for appeal. However, LSA-C.Cr.P. art. 916 allows the trial judge to “take appropriate action pursuant to a properly made or filed motion to reconsider sentence.” Therefore, we find that the trial judge erred by failing to rule on- this motion to reconsider sentence even though he had already signed the order granting the appeal.

On January 31, 2002, the trial court found the defendant to be a second felony offender, vacated the original sentence and re-sentenced the defendant. Defendant then orally moved for reconsideration of that sentence. The trial court never ruled upon this motion.

LSA-C.Cr.P. art. 881.4 holds that if it is “necessary to an appropriate disposition of a motion to reconsider sentence, the appellate court may remand the case to the trial court with instructions to supplement the record or to hold an evidentiary hearing.”

This Court, in State v. Winfrey, 97-427 (La.App. 5 Cir. 10/28/97), 703 So.2d 63, affirmed the defendant’s conviction and remanded the case for a ruling on a motion to reconsider sentence. This Court further explained that if the motion | Rto reconsider was granted and the defendant was resentenced, he could appeal the new sentence. In addition, if the motion was denied or was already ruled on, the defendant must re-lodge his appeal within 60 days of the date of the ruling on the motion to reconsider sentence or the date of this opinion, whichever is later.

Therefore, we affirmed the defendant’s conviction and remand this case to the trial court for rulings on defendant’s motions to reconsider sentence. If there has been no disposition of the motions to date, the trial court is ordered to rule on the motions within 30 days of the appellate opinion. Following disposition of the motions to reconsider, defendant is authorized to re-lodge his appeal within 60 days of the date of the rulings on his motions, or the date of the appellate opinion, whichever is later. State v. Simmons, 00-1037 (La.App. 5 Cir. 2/28/01), 781 So.2d 821, 826; State v. Smith, 96-285 (La.App. 5 Cir. 10/1/96), 683 So.2d 826, 827.

ERROR PATENT DISCUSSION

In addition to the specific review of the record requested by defendant in assignment of error number one, the record was reviewed for other errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

First, there are sentencing errors patent in the original and enhanced sentences. In the original sentence, the trial judge imposed the 30-year sentence without benefit of parole, probation, or suspension of sentence. However, LSA-R.S. 40:967(B)(4)(b) provides that only the first five years of the sentence should be without benefit of parole, probation, or suspension of sentence. With respect to the enhanced sentence, the trial judge imposed the 45-year sentence without benefit of probation or suspension of sentence. However, the trial judge failed to comply with the underlying statute which provides that the first five years of the sentence should be without benefit of parole, probation, or suspension of sentence. LSA-R.S. 40:967(B)(4)(b). Nevertheless, since we are remanding this matter for | (¡rulings on the motions to reconsider sentence, it is premature to address these patent sentencing errors.

Second, the record reflects the trial judge did not advise the defendant of his multiple offender rights, as required by LSA-R.S. 15:529.1, which provides that the trial court shall inform the defendant of the allegations contained in the information and of his right to be tried as to the truth thereof according to law, and shall require the offender to say whether the allegations are true. LSA-R.S. 15:529.1 implicitly requires that the trial court advise the defendant of his right to remain silent. State v. Dearmas, 606 So.2d 567, 569 (La.App. 5 Cir.1992), overruled on other grounds in State v. Davis, 01-123, p. 10 (La.App. 5 Cir. 7/30/01), 792 So.2d 126, 131. The trial judge also failed to inform the defendant of this right. In State v. Dearmas, this Court held that the failure of the trial court to advise the defendant of his right to a trial and to remain silent was harmless error where the multiple offender status was established by competent evidence offered by the state at the hearing, rather than by the admission of the defendant.

In the instant case, defense counsel, on behalf of defendant, denied the allegations of the multiple bill on October 11, 2001. On that same date, the state presented competent evidence at the multiple offender hearing to establish the defendant’s multiple offender status. The record indicates that defendant did not testify or make any comments during the multiple bill hearing. Therefore, the trial court’s failure to advise the defendant of the specific allegations against him and of his right to be tried and to remain silent was harmless error. State v. Haywood, 00-1584 (La.App. 5 Cir. 3/28/01), 783 So.2d 568, 583.

The record does not indicate that the defendant admitted or denied the allegations of the amended multiple bill. The right was waived, however, when defendant did not lodge an objection on this basis prior to the hearing on the 17multiple bill. LSA-C.Cr.P. art. 555; State v. Richmond, 98-1015 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 39.

In accordance with the above, we affirm defendant’s conviction and remand this case to the trial court for rulings on the defendant’s motions to reconsider his sentence.

CONVICTION AFFIRMED; CASE REMANDED.