author: GAIDRY, J. DOWNING, J.,

text:
    STATE of Louisiana v. Patrick Richard KUJAWA.
    No. 2005 KA 0470.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 22, 2006.

      J. Phil Haney, District Attorney, Jeffrey J. Trosclair, Assistant District Attorney, Franklin, Counsel for State/Appellee State of Louisiana.
    Mary E. Roper, Baton Rouge, Counsel for Defendant/Appellant Patrick Richard Kujawa.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   GAIDRY, J.

1 p.The defendant, Patrick Richard Kuja-wa, was charged by bill of information on January 13, 2000 with possession of pornography involving juveniles on December 30, 1999. On January 21, 2000, the state filed an amended bill of information with the identical charge of possession of pornography involving juveniles, a violation of La. R.S. 14:81.1. However, the amended bill of information changed the charge from “Possession of Child Pornography” to “Possession of Child Pornography (62 Counts).” The defendant, with counsel present, was arraigned and pleaded not guilty to all charges. The defendant filed a motion to quash the bill of information alleging, inter alia, that the 62 counts, if true, constituted a single offense involving one course of criminal conduct.

On December 13, 2000, the defendant withdrew his not guilty plea and entered a plea of guilty to fifteen counts of possession of pornography involving juveniles. Judge Anne L. Simon sentenced the defendant to four years on each of the fifteen counts, each sentence to be served consecutively. Judge Simon suspended the sentences and imposed ten years probation.

On January 27, 2004, agents of Immigration and Customs Enforcement, a division of Homeland Security, executed a search warrant on the defendant’s residence and found hundreds of images of hardcore child pornography on his computer. The defendant was indicted in federal court under 18 U.S.C. § 2252A(a)(5)(B) for possession of child pornography. The defendant pleaded guilty to Count 1 of the federal court indictment on April 5, 2004.

|sIn May 2004, the defendant filed a Motion to Amend Sentence and a Motion to Correct Illegal Sentence, contending that the total sixty-year sentence (for the state convictions) was illegal because the maximum sentence allowable under the law was ten years. He also asserted his sentences could not properly have been suspended because the statute required the sentences to be served without the benefit of probation, parole, or suspension of sentence. Judge Keith J. Comeaux found that the court was without authority to suspend the sentences and granted the defendant’s motion to amend the sentences and have a new sentencing hearing on the matter.

On September 17, 2004, a resentencing hearing was held. On the same date, the defendant filed another motion to quash, arguing that the court should quash all but one count as charged, on the grounds that subjecting him to more than one ten-year Sentence constituted double jeopardy. After Judge Comeaux heard testimony and argument, he denied the defendant’s motion to quash and sentenced the defendant to ten years at hard labor for each of the fifteen counts of child pornography. He ordered those fifteen sentences to run concurrently, but for the concurrent sentences to run consecutively to any federal sentence then in effect. The judge also imposed a $10,000.00 fine for each concurrent sentencing count.

The defendant filed a motion to reconsider sentence on September 22, 2004, which was denied by the court. The defendant now appeals, asserting the following seven assignments of error:

14Assignment of Error No. 1

The trial court erred in denying the defendant’s motion to quash.

Assignment of Error No. 2

The trial court erred in overruling the defense’s objection to the introduction of evidence of a subsequent conviction at the resentencing hearing.

Assignment of Error No. 3

The trial court erred in considering evidence of the defendant’s subsequent conviction in resentencing him.

Assignment of Error No. ⅛

The trial court erred in failing to consider mitigating factors listed in La.C.Cr.P. art. 894.1 in resentencing the defendant.

Assignment of Error-No. 5

The trial court abused its discretion in sentencing the defendant to the maximum sentence under the statute.

Assignment of Error No. 6

The trial court erred in denying the defendant’s motion to reconsider sentence.

Assignment of Error No. 7

The trial court erred in imposing the maximum fine of $10,000.00.

For the following reasons, we affirm the convictions and sentences.

FACTS

Due to the defendant’s guilty plea, there was no trial testimony concerning the facts in this matter. The affidavit to the arrest warrant describes the factual basis for the charges. The defendant, a Catholic priest, was assigned to Holy Cross Catholic Church in Morgan City in St. Mary Parish. On January 4, 2000, Bishop Michael Jarrell of the Diocese of Houma-Thibodaux issued a press release stating that the defendant had been found in possession of pornographic material, some of which involved pictures of minors.

1,.¡Based on that information, on January 11, 2000 Detective Eric DeLaune and other city police investigators obtained a warrant and searched the defendant’s living area at the rectory. They seized, among other things, the defendant’s computer, a second computer hard drive, computer disks, and large jars of Vaseline. Sergeant Travis Crouch and Detective DeLaune examined the materials in a box obtained in the seizure. They found hundreds of pages of printed text and pictures. They removed 220 pages of pictures of nude persons, believed to be juveniles, in various poses and engaged in sexual acts.

On January 10, 2000, the pictures were viewed by Dr. Scott Benton, an assistant professor of pediatrics and Director of Pediatric Forensic Medicine at Louisiana State University Medical School. Dr. Benton found that 62 pages contained pictures of minor children, which, in his opinion, constituted child pornography. The other pages also depicted child pornography, according to Dr. Benton, but less clearly so.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the defendant avers the trial court erred in denying his motion to quash. Specifically, the defendant contends that the 62 counts of possession of pornography involving juveniles should have been billed as only one count because all the pictures were seized on the same date and in the same location. The multiple charges for a single offense, he argues, constituted double jeopardy.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The United States Supreme Court has recognized three separate guarantees embodied in the Double Jeopardy Clause: it protects (i) against a second prosecution for the same offense after acquittal; (ii) against a second prosecution for the same offense after conviction; and (iii) against multiple | fi'punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228 (1980). Thus, the concept of double jeopardy under both the federal and state constitutions embodies the dual purpose of preventing both multiple prosecutions and multiple convictions for a single criminal wrong. State v. Cotten, 438 So.2d 1156, 1160 (La.App. 1st Cir.1983), writ denied, 444 So.2d 606 (La.1984). See La.C.Cr.P. art. 591.

At issue in this case is the legality of imposing separate sentences on the defendant for convictions of fifteen counts (charged separately in a single bill of information) of violating La. R.S. 14:81.1(A)(3) by possessing fifteen separate images of child pornography, rather than imposing-one sentence based on a single count and conviction for the crime of possession of pornography involving juveniles. See State v. Joles, 492 So.2d 490 (La.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987). In his brief, the defendant asserts that the rule against multiplicity, charging a single offense in more than one count, stems from the Double Jeopardy Clause and is intended to protect against multiple punishments for the same act. See United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir.1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996).

The issue before us is technically not one of multiplicity but rather one of determining the correct unit of prosecution. This is not an instance where the same act or transaction constitutes a violation of two distinct statutory provisions. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). This is a case, rather, where each successive or separate act has been charged as a separate crime under the same statute. See Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), and United States v. Esch, 832 F.2d 531, 541 (10th Cir.1987), cert. denied, 485 U.S. 908, 108 5.Ct. 1084, 99 L.Ed.2d 242 (1988), and cert. denied, 485 U.S. 991, 108 S.Ct. 1299, 99 L.Ed.2d 509 (1988).

The issue raised by the defendant with respect to whether he has received multiple punishments for the same offense is resolved by reference to the statutory language of La. R.S. 14:81.1. It is well settled that whether a particular course of conduct involves one or more distinct offenses under a statute depends on how a legislature has defined the allowable “unit of prosecution.” See Bell v. United States, 349 U.S. at 81, 75 S.Ct. at 621. Thus, whether the defendant’s conduct in possessing fifteen different pictures involved one offense or fifteen separate offenses depends on how the statute defines the offense and the unit of prosecution intended by the legislature according to the statute’s plain language.

We find no cases which squarely decide the precise issue here, that is, whether each count charged pursuant to La. R.S. 14:81.1, under these particular facts, constitutes a separate and distinct crime or whether all counts fall under only one crime. The issue is res nova. In construing La. R.S. 14:81.1, we consider two established rules of statutory construction: (1) all criminal statutes are construed strictly, and (2) the words of a statute must be given their everyday meaning. See State ex rel. Robinson v. Blackburn, 367 So.2d 360, 363 (La.1979) and La. R.S. 14:3.

The applicable provisions of La. R.S. 14:81.1 read as follows:

A. Pornography involving juveniles is any of the following:
(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.
_1⅛ • •
E. Whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.

Under the statute, the contraband items are described using the plural form, i.e., photographs, films, videotapes, or other visual reproductions. The defendant suggests that the intent of the legislature was to prohibit a course of conduct, e.g., the possession of pictures, be it fifteen or fifty, rather than to authorize the multiple charging of a defendant for each separate and distinct picture possessed. The mere fact that words are in the plural, however, is not dispositive of legislative intent.

Several Louisiana decisions have found that a single count was the proper charge regardless of the number of prohibited acts performed by the defendant. In State v. Freeman, 411 So.2d 1068 (La.1982), two defendants were each convicted on three counts of hunting deer at night and three counts of hunting or taking deer in closed season. The statute at issue prohibited the hunting of “deer” at certain proscribed times. The defendants argued that finding them both guilty of six | ^violations of the statute, when in fact only two existed, subjected them to triple punishment for each of the two violations. The Supreme Court found that the word “deer” without being preceded by an article of “a,” “an” or “the,” was not limited to the singular, but also encompassed the plural form. Id. at 1072. The court found that if the legislative aim had been to make the taking of each individual deer an offense, it would have clearly expressed that intent, and to construe the statutory provisions otherwise would permit prosecutors to create multiple offenses without a legislative grant of authority. Id. See also State v. Hungerford, 278 So.2d 33 (La.1973), and State v. Price, 475 So.2d 6 (La.App. 4th Cir.1985), writ denied, 484 So.2d 664 (La.1986).

A review of the jurisprudence in other jurisdictions reveals that there is no clear consensus on what constitutes the proper unit of prosecution when interpreting statutes prohibiting child pornography or similar offenses. The following decisions found that the indictments against the defendants containing multiple counts for a single offense impermissibly charged each act as a separate unit of prosecution.

In Bell v. United States, 349 U.S. at 82, 75 S.Ct. at 621, the relevant provision of the Mann Act stated:

Whoever knowingly transports in interstate or foreign commerce ... any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose....
Shall be fined not more than $5,000 or imprisoned not more than five years, or both.

The defendant in Bell, having transported two women on the same trip and in the same vehicle, pleaded guilty to two counts of violating the Mann Act, one count for each woman. On appeal, the defendant argued he committed only a single offense and could not be subjected to cumulative punishment under the two counts. The Court of Appeals affirmed the District Court, finding that two separate offenses were committed because, even though the act of transportation was a single one, the unlawful purpose was necessarily personal as to each of the women.

The United States Supreme Court reversed the Court of Appeals and stated:

Congress could no doubt make the simultaneous transportation of more than one woman in violation of the Mann Act liable to cumulative punishment for each woman so transported. The question is: did it do so? It has not done so in words in the provisions defining the crime and fixing its punishment.
It is not to be denied that argumentative skill, as was shown at the Bar, could persuasively and not unreasonably reach either of the conflicting constructions.
When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.
This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on a crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no' more to go on than the present case furnishes.

Bell v. United States, 349 U.S. at 82-84, 75 S.Ct. at 622.

Inin United States v. Reedy, 304 F.3d 358 (5th Cir.2002), the defendants owned and operated Landslide, Inc., an Internet website that provided a computerized credit card verification service used by various webmasters whose websites contained child pornography. The defendants were charged with 43 counts (one count for each individual image) of committing activities relating to material constituting or containing child pornography and aiding and abetting in violation of 18 U.S.C. §§ 2252A and 2. The applicable law made it a crime to knowingly ship or transport in interstate commerce “any visual depiction” of a minor engaging in sexually explicit conduct. “Visual depiction” was defined in § 2256(5) as “including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means.” In § 2252(a)(4)(b), however, “visual depiction” was defined as including one or several images, i.e., “books, magazines, periodicals, films, video tapes, .... ” The defendants in Reedy argued that there were ten websites containing child pornography and that accordingly there should have been only ten counts for each violation of the applicable statutory provisions instead of 43 counts, a count for each of the 43 pictures. The court found that the word “any” was a source of ambiguity. Id. at 365. In finding the criminal statute failed to provide an answer, the Fifth Circuit relied on Bell v. United States, supra, and invoked the rule of lenity, finding that the district court erred in permitting the prosecution to group the counts by individual image rather than by website. Id. at 367-68.

In contrast, the following decisions found that each separate count against the defendant was an allowable unit of prosecution.

[1?,In United States v. Esch, supra, the defendants were charged with sixteen counts of sexual exploitation of children for photographing their children and themselves engaged in sexually explicit conduct. The co-defendants then sold these photographs. The applicable statutory provision, 18 U.S.C. § 2251(a), proscribed the use of a minor to engage in “any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” In construing the statute, the Tenth Circuit found that each use of a minor to create a visual depiction constituted a separate and distinct violation. The Tenth Circuit noted that the inquiry as to what constituted the correct unit of prosecution focused in part on the identification of the key element of the federal offense. The court concluded the key element of the offense was the use of a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction of such conduct. Id. at 541-^12. The fact that multiple photographs were sequentially produced during a single photographing session was deemed irrelevant because each photograph depended upon a separate and distinct use of the children. Id. at 542. The court distinguished United States v. Meyer, 602 F.Supp. 1480 (S.D.Cal.1985). In Meyer, the transportation and importation of a binder of pornographic pictures were simultaneous, while the criminal acts in Esch, according to the court, were not simultaneous. The court concluded that the indictment properly charged separate counts for each of the photographs produced. Id.

In Vineyard v. Texas, 958 S.W.2d 834 (Tex.Crim.App.1998) (en banc), the defendant was convicted of possession of child pornography for possessing a videotape containing a “film image” depicting a child engaging in sexual conduct, and for possessing a photograph with a “film image” depicting a child engaging in sexual conduct. The applicable law provided, in pertinent part, that a person commits the offense of possession of child pornography if he “possesses material containing a film image” that visually depicts a child engaging in sexual conduct. 11sIn reversing the defendant’s second conviction for violation of the double jeopardy clauses, the appellate court found that the legislature did not intend that the simultaneous possession of more than one film image created more than one unit of prosecution. The court relied, in part, on § 43.26(f) of the Texas penal code, which provided that a person possessing “six or more identical film images depicting a child ... is presumed to possess the film image with the intent to promote the material.” The appellate court found that this provision was evidence of the legislature’s intent not to establish separate and distinct offenses in cases like this. The Court of Criminal Appeals disagreed with the appellate court and found that § 43.26(f) merely created a presumption that a person who possesses six or more identical film images possesses them with the intent to promote them. Id. at 838. The Court of Criminal Appeals held that the legislature intended to make possession of each item of child pornography an allowable unit of prosecution, basing its rationale, in part, on the legislature’s use of the singular term “film image” and, in part, because of the harm to each individual child created by the offense of possession of child pornography. Id.

In State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002), the defendant was convicted of eighteen counts of visual depiction of sexually explicit conduct which had a child as one of its participants in violation of the applicable statute, which provided in pertinent part that it “shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.” ‘‘Visual depiction” was defined by the applicable statute as a “live performance or photographic representation.” The defendant, a photographer, had photographed a nude or partially nude seventeen-year-old female. The defendant argued that his conduct amounted to one count because all eighteen photographs were taken of the same subject the same day as 114part of one ongoing or continuous act. The court found the plain language of the statute focused on “any visual depiction.” It further found that the singular form of “photographic representation” in the statute read in conjunction with the term “any” indicated that the legislature intended prosecution for each differing photographic representation. Id., 264 Neb. at 187, 646 N.W.2d at 610-11. Thus, in making multiple different prohibited depictions, the defendant was held to have committed multiple offenses, even though each differing visual depiction involved the same subject captured in a narrow time-frame.

In State v. Multaler, 252 Wis.2d 54, 643 N.W.2d 437 (2002), the defendant pleaded guilty to 28 counts of child pornography. The pornographic images were found on two computer disks labeled “Child Pornography” and “Child Pornography II.” The defendant argued that the legislatively intended unit of prosecution was determined by the number of disks, not the number of images. The applicable statute provided that whoever possessed “any undeveloped film, photographic negative, photograph ... or other pictorial reproduction ... of a child engaged in sexually explicit conduct ... is guilty of a Class E felony .... ” The defendant contended the legislature intended punishment based not upon an image but rather upon the medium on which the images were found. The court disagreed and found that nothing in the plain language of the statute supported the defendant’s position that the legislature intended that a computer disk, rather than an image, was the intended unit of prosecution. Id., 252 Wis.2d at 83, 643 N.W.2d at 451. In noting that the statutory language provided that a possessor of “any photograph ... or other pictorial reproduction” violated the statute, the court found that the singular formulation of those items covered under the statute modified the |1Rterm “any” and was evidence that the legislature intended prosecution for each photograph or pictorial reproduction. Id.

In State v. Schaefer, 266 Wis.2d 719, 668 N.W.2d 760 (App.2003), review denied, 266 Wis.2d 61, 671 N.W.2d 848 (2003), the defendant pleaded no contest to eighteen counts of possession of child pornography. The pornography was in the form of individual images found on a Zip disk removed from the defendant’s computer. The defendant argued that the charges are identical in fact because all the pornographic photographs were on a single computer Zip disk, and there was no evidence that he acquired each image with a separate volitional act. The court found that Mul-taler was dispositive of the issue and concluded that it was reasonable to assume that the existence of multiple files on the Zip disk demonstrated that the defendant made a new decision to download a particular image file. Therefore, each image file was held to represent a new volitional departure. Id., 266 Wis.2d at 752, 668 N.W.2d at 777. The defendant further argued that the use of the word “any” to refer to the prohibited “pictorial reproduction” permitted two reasonable interpretations regarding the allowable |16unit of prosecution and that the rule of lenity compelled construction of the applicable statute in his favor. Relying again on Multaler, which considered and rejected this argument, the court concluded that it was bound by that precedent. Id., 266 Wis.2d at 755, 668 N.W.2d at 778.

In Commonwealth v. Davidson, 860 A.2d 575 (Pa.Super.2004), authorities found approximately 500 images of child pornography on the defendant’s computer hard drive. The defendant was convicted of 28 counts of sexual abuse of children. The applicable statutory provision stated in pertinent part:

(d) Possession of child pornography.—
(1) Any person who knowingly possesses or controls any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act commits an offense.

The defendant argued that there was a single possessory offense. The court disagreed, finding that the offenses charged stemmed from 28 different criminal acts. The 28 pornographic pictures found involved different children or, in some cases, the same children photographed multiple times. The court reasoned that each photograph of each child victimized that child and subjected him or her to precisely the type of harm the statute seeks to prevent. Id. at 583. See also Slavek v. Hinkle, 359 F.Supp.2d 473, 477, 496 (E.D.Va.2005).

In State v. Howell, 169 N.C.App. 58, 609 S.E.2d 417 (2005), authorities found on the defendant’s computer hard drive over 200 pictures depicting minors engaged in sexual acts. The images were received in five Zip files, and then stored on the computer’s hard drive in five separate directories. The defendant was convicted of 43 counts of third degree sexual exploitation of a minor. The applicable North Carolina statutory provision provided in pertinent part that a “person commits the offense of third degree sexual exploitation of a minor if ... he possesses material that contains a visual representation of a minor 117engaging in sexual activity.” “Material” was defined as “[pictures, drawings, video recordings, films or other visual depictions or representations .... ” The defendant contended that because the definition of “material” specified items in the plural, the photographs found on his computer constituted only a single charge. The court disagreed and found that the listing of plural items in the definition of “material” was merely a matter of style. Id., 169 N.C.App. at 61-2, 609 S.E.2d at 419. The court also found that the plain language of the statute under which the defendant was convicted stated that possession of material containing “a visual representation” allowed for multiple convictions under the circumstances. Id., 169 N.C.App. at 62, 609 S.E.2d at 421. The defendant also argued that the evidence supported, at most, five counts because there were five downloads of one Zip file each. The defendant contended that each of the five downloaded Zip files was the technological equivalent of a digital magazine. The court disagreed, finding that the evidence tended to show that the 200 individual photographs on the defendant’s computer, found within the five Zip directories, had been opened on his computer. It concluded that since each of the images had been opened and saved on the hard drive, the defendant “possessed” each of the 43 images. Id., 169 N.C.App. at 64, 609 S.E.2d at 421.

Based on our review of the jurisprudence, we find the defendant’s emphasis upon the plural form of the contraband items is misplaced. A fundamental rule of statutory interpretation is that a statute should be considered as a whole, and its separate provisions considered in their context to each other. See La. R.S. 1:3 & 14:8. A careful reading of the entire statute reveals that the legislative intent was to proscribe possession of any single image. The use of the plural form was clearly a matter of grammatical style and not suggestive of an intent to establish a unit of prosecution based upon a broad course of conduct involving multiple contraband images. See La. R.S. 1:7. For example, paragraph C of La. R.S. 14:81.1 provides:

| ^Possession of three or more of the same photographs, films, videotapes, or other visual reproductions shall be pri-ma facie evidence of intent to sell or distribute.

It can hardly be considered reasonable in this context to interpret the phrase “the same photographs, films, videotapes, or other visual representations” as referring to identical sets of multiple images, as opposed to the same image, in order for the presumption to apply. This conclusion is reinforced by consideration of the specific language of paragraph F:

Each photograph, film, videotape, or other reproduction of any sexual conduct involving a child under the age of seventeen shall be contraband and shall be seized and disposed of in accordance with law. (Emphasis supplied.)

Further, the use of the singular form of the contraband images in La. R.S. 14:81.1(G), although not as persuasive, supports this conclusion.

Finally, we conclude that the use of the article “any” to modify the proscribed images evidences a clear legislative intent that each such image constitutes a basis for a unit of prosecution. See State v. Multaler, 252 Wis.2d at 83, 643 N.W.2d at 451; State v. Cobb, 143 N.H. 638, 647-48, 732 A.2d 425, 433-34 (1999). This interpretation best accords with the unequivocal legislative intent to effectively suppress the particular evil addressed by the statute. The trial court did not err in denying the defendant’s motion to quash.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NO. 2 AND NO. 3

In these assignments of error, the defendant avers the trial court erred in overruling his objection to the introduction of evidence of a subsequent conviction at the resentencing hearing. Specifically, the defendant contends that the trial court should not have considered his subsequent federal conviction because it was not in existence at the time he was originally sentenced on April 30, 2001. The defendant 11sfurther contends that the trial court at resentencing did not refer to the intent of the original sentencing judge.

Contrary to the defendant’s contention, it is irrelevant that his federal conviction for possession of child pornography had not yet occurred when he was originally sentenced on April 30, 2001. The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315 (La.1982). At the time of resentencing on September 17, 2004, the defendant’s federal conviction, a violation of his probation, was prior criminal activity and therefore was proper for the trial judge to consider.

The judge may make ministerial corrections to a sentence imposed by a predecessor unless he or she entertains a reasonable doubt as to the intent of the original sentencing judge and the validity of the sentence imposed by the original sentencing judge. In all cases, a district judge retains the discretion to vacate the sentence originally imposed and to resen-tence the inmate in open court. State v. Harris, 93-1098, p. 2 (La.1/5/96), 665 So.2d 1164, 1164.

In sentencing the defendant at the re-sentencing hearing, it is clear from the record that while the trial court may have considered the intent of the original sentencing judge, there was then a new federal conviction that was not of course present for the original sentencing judge’s consideration. The trial court noted that while the defendant applied to the court on several occasions for lessening the conditions of his probation, and while Dr. Maureen Brennan had testified that the defendant was making significant progress in his treatment for problems with child pornography, the defendant had subsequently been convicted of the same offense. _JjgFurthermore, as argued by the State at the hearing, the defendant had progressed from photographs to videos in the subsequent federal conviction.

We find that the trial court properly considered the intent of the original sentencing judge, noted the defendant’s subsequent federal conviction for the same illegal conduct, and sentenced the defendant accordingly. These assignments of error are without merit.

ASSIGNMENTS OF ERROR NO. 4, NO. 5 AND NO. 6

In these assignments of error, the defendant argues that the trial court erred in denying his motion to reconsider sentence. Specifically, the defendant contends that in failing to consider mitigating factors, the trial court abused its discretion in sentencing him to the maximum sentence under the statute.

Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Louisiana Code of Criminal Procedure art. 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria.

Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of' pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one’s sense of justice. State v. Andrews, 94-0842, pp. 8-9 (La.App. 1st Cir.5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La.App. 1st Cir.1988).

1 ¾1 The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La.1982). The trial judge should review the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. State v. Jones, 398 So.2d 1049, 1051-1052 (La.1981).

In applying La.C.Cr.P. art. 894.1, the trial court noted that the defendant knew or should have known that the victims were particularly vulnerable due to their extreme youth and that the defendant thrived on photographs of young people. The court further found the nature of this type of offense repulsive in that children were being exploited by the defendant.

The defendant contends the trial court failed to consider the mitigating factor of being a first offender with no history of prior delinquency or criminal activity. However, at the time of resentencing, the defendant was not a first offender. While on probation, the defendant again pleaded guilty on or about January 27, 2004, to possession of child pornography in federal district court for his criminal actions. In light of the defendant’s federal conviction of essentially the same offense, the trial court found that a lesser sentence would deprecate the seriousness of the offense, and that there was an undue risk that during a suspended or probationary period the defendant would commit another crime. The trial court found the defendant was in need of correctional treatment or a custodial environment that could best be provided by commitment to an institution.

The sentencing range for possession of pornography involving juveniles is two to ten years imprisonment at hard labor. La. R.S. 14:81.1(E). The trial court | ¡^imposed a ten-year sentence at hard labor for each of the fifteen counts, with each count to run concurrently with each other. Considering the trial court’s careful consideration of the circumstances, the detestable offense of possession of pornography involving juveniles, the defendant’s position of trust as a priest, the defendant’s recent criminal history of re-offending, and the fact that the defendant was sentenced to only ten years imprisonment when he could have been sentenced to 150 years had the trial court chosen to run the sentences consecutively, the sentences imposed by the trial court are not grossly disproportionate to the severity of the offense and, therefore, are not unconstitutionally excessive. The trial court did not err in denying the defendant’s motion to reconsider sentence. These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 7

In his seventh assignment of error, the defendant avers the trial court erred in fining him $10,000.00 for each separate count. Specifically, the defendant contends the trial court fined him only because it was erroneously informed by the state that a fine was mandatory pursuant to the statute.

Under La. R.S. 14:81.1(E), whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars. A $10,000.00 fine for each count was proper and within the great discretion of the trial court in imposing sentence. We will not second-guess whether, or to what extent, the trial court may have been influenced by the state in imposing the fines and their amounts. Moreover, the defendant made no objection when the trial |g3court imposed the fines. Because the defendant failed to make an objection, the issue cannot now be urged on appeal. See La. C.E. art. 103(A)(1); La.C.Cr.P. art. 841; and State v. LeBlanc, 618 So.2d 949, 958-959 (La.App. 1st Cir.1993), writ denied, 95-2216 (La.10/4/96), 679 So.2d 1372. This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.

DOWNING, J., dissents and assigns reasons.

DOWNING, J.,

dissents and assigns reasons.

hi respectfully dissent. The majority takes what is, at best, an ambiguous statute and reaches a result that is contrary to established principles of statutory interpretation.

It is not clear from a plain reading of La. R.S. 14:81.1 what constitutes an allowable unit of prosecution. While it is not unreasonable to interpret the plural form of the prohibited items in La. R.S. 14:81.1(A)(3) as suggestive of permitting only one count regardless of the number of pictures possessed, such an interpretation is in no way definitive, or even necessarily preferred. Indeed, a rational argument could be made for either of the conflicting constructions. The rule of lenity applies not only to interpretations of the substantive ambit of criminal laws but also to the penalties imposed by those laws. State v. Campbell, 03-3035, p. 9 (La.7/6/04), 877 So.2d 112, 118. Where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. See Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971).

[2In giving a genuine construction consistent with the plain language of La. R.S. 14:81.1(A)(3), which is, at best, ambiguous as to the allowable unit of prosecution, and keeping in mind the strict construction mandated under the rule of lenity, the defendant’s sentences, which imposed ten years for each count of possession of pornography involving juveniles, should not stand. See Campbell, 03-3035 at pp. 9-10, 877 So.2d at 118. I conclude under the particular facts herein that the trial court erred in permitting the prosecution to charge separate counts for each picture possessed.

      . Judge Simon did not make any reference to the sentences being at hard labor.

      . The indictment was for a single count, which stated in pertinent part: "On or about the 27th day of January, 2004, ... Patrick R. Kujawa, did knowingly and intentionally possess a computer containing child pornography as defined in Title 18, United States Code, Section 2256, which had been transported in interstate commerce ...."

      . The record does not contain the sentencing hearing for the federal offense, so the precise sentence the defendant received for this offense is unknown. It is clear, however, that he faced a minimum sentence of ten years.

      . Judge Simon was no longer involved in the matter.

      .At his initial felony plea hearing before Judge Simon, the defendant did not reserve any rights for a Crosby appeal. A plea of guilty waives all nonjurisdictional defects in the proceeding prior to the plea unless the defendant specifically reserves his right to raise the objection on appeal. State v. Haslom, 468 So.2d 1354, 1356 (La.App. 1st Cir.1985). However, even an unqualified plea of guilty will not waive "jurisdictional” defects, including double jeopardy. See State ex rel. Robinson v. Blackburn, 367 So.2d 360, 364 (La.1979); State v. Crosby, 338 So.2d 584, 588 (La.1976).

        . Presumably, the images possessed by the defendant depicted multiple different individuals. At the defendant's resentencing, the trial court stated: "The offense involves multiple] victims, as [sic ] from the photographs, which indicate separate sentences or incidents occurred." The images which are the subject of the fifteen of the original 62 counts to which the defendant pleaded are not identified in the record.

      . Our analysis is confined to the act of possession since the defendant here was charged with possession only.

      . The legislative history provides no further guide to the meaning of these words.

      . "Pictures" could be "photographs” or "other visual reproductions” under La. R.S 14:81.1(A)(3). The record refers to the items containing child pornography as "pictures.”

      . See, e.g., State v. Howell, 169 N.C.App. 58, 609 S.E.2d 417, 419 (2005), where a North Carolina appeals court found that the use of the plural in defining "material” (i.e. "material” defined as "pictures,” "drawings,” "video recordings,” etc.) was merely a matter of style.
      In its brief, the state contends that the words "photographs, films, videotapes, or other visual reproductions” are qualified with the words "of a child” rather than “of any child.” As such, the state asserts, it was the legislative intention that each visual reproduction of a different child is a separate crime. We do not find any significance in the use of the word "a” instead of "any” in the statute. The use of the words "a child” rather than "any child” does not, as asserted by the state, clarify legislative intent with regard to the proper unit of prosecution. The use of "a child” rather than "any child” is not a source of ambiguity. The central object of the statute does not relate to the terms "a child” or "any child,” but rather to the possession of items containing child pornography. The proper focus, thus, is on the legislative intent in designating prohibited items using the plural form. The unit of prosecution refers to the offense proscribed by the statute, not the class of persons the statute protects.

      . An inherent difficulty with this approach is that the various provisions of the other states’ laws do not, to the degree necessary for any reliable comparison, parallel the applicable provisions of our own law. Furthermore, the factual scenarios of the various decisions are so diverse that application of a similar legal analysis to the case at hand would provide little practical guidance in resolving the issue, since any decision without virtually identical facts would be readily distinguishable. See, e.g., Bell v. United States, 349 U.S. at 83, 75 S.Ct. at 622, where Justice Frankfurter stated:
      [I]t will not promote guiding analysis to indulge in what might be called the color-matching of prior decisions concerned with 'the unit of prosecution' in order to determine how near to, or how far from, the problem under this statute the answers are that have been given under other statutes.
      We nevertheless review jurisprudence from other states to demonstrate the various analy-ses employed by those courts to resolve the issue.

      . It should be noted, however, that the result in Reedy was expressly limited by the court to the particular factual situation present, i.e., "a security screening system that aggregates websites containing child pornography.” Id. at 368, n. 14.

      . The court in Multaler also stated:
      In essence, because it appears that the images on the disks were photographs of actual children, the disks served as electronic photo albums. The language of § 948.12 shows that the legislature would deem it appropriate to bring separate charges for separate photographs in a traditional photo album. Similarly, the legislature presumably would deem separate charges appropriate for individual images displayed in an electronic photo album. .

        Multaler, 252 Wis.2d at 84, 643 N.W.2d at 451.

      . The court stated that the time element did not turn on the number of seconds or minutes between the alleged criminal acts. The issue, rather, was whether the defendant had sufficient time for reflection between the acts to re-commit himself to the criminal conduct. Schaefer, 266 Wis.2d at 751, 668 N.W.2d at 776.

      .The defendant argued there was no statement indicating the images were downloaded over a period of time, so the new volitional departure standard was not met. The defendant submitted that the only thing known about the images is that they were possessed simultaneously on a Zip disk. The court found the defendant’s argument better suited to a multiplicity objection made during or at the end of trial. The court noted that evidence that images were copied wholesale from another disk or computer could convince the trial court that the charges were not different in fact and therefore only one count should be considered by the jury. Schaefer, 266 Wis.2d at 753-754, 668 N.W.2d at 777.

      . The language of this paragraph was later rewritten by 2003 La. Acts No. 1245, § 1.

      . Dr. Brennan was the defendant’s treating psychologist when he was originally sentenced.

      . Following is the relevant discussion at the resentencing hearing:

        Mr. Senette [prosecutor]: How about a fine, Your Honor, is any fine going to be imposed in this case?
      The Court: Any fine of — do you I [sic ] have to impose a fine?
      Mr. Senette: Ten thousand dollars per count, Your Honor.
      The Court: Shall impose?
      Mr. Marquet [defense counsel]: Let’s read it, Judge.
      Mr. Senette: That’s correct, Your Honor. The Court: Okay. Now I’m going to impose a ten thousand dollar ($10,000) [sic ] of Mr. Kujawa.
      Mr. Senette: For each count, Your Honor? The Court: Yeah, each count to run concurrently, plus cost. All right.

      . Finding that the allowable unit of prosecution is for each picture possessed leads to disparate sentencing schemes. On the other hand, finding that individual pictures are not the proper unit of prosecution means that whether a defendant possesses 10 pictures or 1,000 pictures, the maximum sentence would be 10 years. It is also unclear under the statute whether the downloading of pictures one at a time over a course of minutes or hours is analytically distinguishable from simply possessing the pictures simultaneously. But see Official Revision Comment (d) to La. Code Crim. P. art. 596 (Requirements for double jeopardy), which states:
      Clause (2) of the above Art. 596 is necessary to prevent multiple prosecutions for continuous offenses. For example, possession of stolen goods or narcotics may continue over a long period of time and may involve more than one object. Yet, obviously there should be only one prosecution for what is in effect one criminal course of conduct.

      . Based on this record, I would not establish any bright-line rule regarding what constitutes an allowable unit for prosecution of possession of pornography involving juveniles. This decision is confined to the unique facts of this case. Because the defendant pled guilty, there is little information in the record regarding the facts of this case. The arrest warrant affidavit indicates that authorities received information that the defendant had been downloading pornography from the internet. When authorities arrived at the defendant’s living area at the Holy Cross Rectory, they found "computer printed pictures" and "printed text” in a box. The computer the defendant was using had access to the internet. While a reasonable assumption would be that the defendant downloaded and printed these pictures from his computer, the record does not establish this presumption as fact. We do not know how the defendant came into possession of these pictures. It is not inconceivable, for example, that someone gave him these pictures in a single transaction. The defendant's computer was seized, as well as a second hard drive that was found in his living area. The precise content retrieved from those hard drives is unknown. Whatever the content, it appears the FBI thought it did not warrant prosecution. At the defendant's resentencing hearing on September 17, 2004, Detective Eric DeLaune testified on cross-examination as follows:
      Q. You indicated to the Court that in addition to the things you've mentioned that a computer was also seized from Mr. Kujawa?
      A. In the first, in the first case, yes, sir.
      Q. In the State case.
      A. Yes, sir.
      Q. And you're the one that seized that computer?
      A. Yes, sir.
      Q. Was that computer analyzed?
      A. Yes, it was.
      Q. Was any, anything of contraband or illegal nature found on that computer?
      A. Yes. There were images gleaned from the computer as well. But FBI had that, they chose not to prosecute.
      ⅜ ⅝ ⅜ ⅝ 5}C
      Q. The analysis was done by federal agents?
      A. By the FBI. Yes, sir.
      Q. On the personal computer seized by, by you.
      A. On the, on the state case. Yes sir.
      Q. State’s case. Have you seen any reports from authorities like Dr. Denton that have identified any images that were found on the computer seized in the state’s case that was analyzed by the federal government that was in fact child pornography?
      A. By the state case, on the state case, no sir.
      Q. So as you sit here today you can’t identify with any degree of accuracy whatever, based on any authority, that whatever images were found on the computer seized in the state case from Mr. Kujawa in fact contained child pornography.
      A. No, sir.


source: Caselaw Access Project

author: McClendon, j. WELCH, J.,

license: Public Domain

text:
    Mary Kozolis Morris wife of/and Thomas E. MORRIS v. NANZ ENTERPRISES, INC., Donald A. Nanz, ABC Insurance Company, Harriet Haag a/k/a Harriet Osborne wife of/and Robert Edward Osborne, Dorothy Calderone, Jan Heap, TEC Realtors, Inc., DEF Insurance Company, Curry, Inc., GHI Insurance Company, the Home Team Inspection Service, JKL Insurance Company, Curry, Inc. d/b/a the Home Team Inspection Service, MNO Insurance Company, Pella Windows & Doors, Inc., PQR Insurance Company, Pella Corporation and STU Insurance Company.
    No. 2005 CA 0236.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 2006.
    Rehearing Denied May 10, 2006.

      Ambrose V. McCall, New Orleans, Counsel for Plaintiffs/Appellants Mary Ko-zolis Morris wife of/and Thomas E. Morris.
    Andrew A. Braun, Michele Conigar, New Orleans, Mark R. Cambrón, Pro Hac Vice, Louisville, KY, Counsel for Defendants/Appellees Nanz Enterprises, Inc., and Donald A. Nanz.
    William C. Cruse, Metairie, Counsel for Defendant Ray Price.

      Michael P. Bienvenu, Baton Rouge, Counsel for Defendants Dorothy Calder-one, Jan Heap, and TEC Realtors, Inc.
    Gregory Currier, Metairie, Paul R. Dickinson, Pro Hac Vice, Charlotte, NC, Counsel for Defendant Pella Corporation.
    Robert T. Lorio, Covington, Counsel for Defendant Bruce Cacioppo.
    D. Rex English, Slidell, Counsel for Defendants Harriet Haag Osborne and Robert Edward Osborne.
    Robert J. Young, III, Metairie, Counsel for Defendants Curry, Inc. and Curry, Inc. d/b/a The Home Team Inspection Service.
    Marti Tessier, Mandeville, Counsel for Defendants Flint Plastering, Inc. and Alfred M. Flint, Jr.
    John I. Hulse, IV, Wayne J. Jablonow-ski, New Orleans, Counsel for Defendant Pleko Southwest, Inc.
    Glen E. Mercer, New Orleans, Counsel for Defendant Assurance Company of America.
    John L. Duvieilh, Christopher S. Mann, New Orleans, Counsel for Defendant Gats Masonry, Inc.
    John E. Unsworth, III, New Orleans, R. Bryan Barnes, Pro Hac Vice, Robert C. Kelly, Pro Hac Vice, Columbia, SC, Counsel for Pleko Southwest Corporation.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McClendon, j.

pin this appeal, plaintiffs, Mary Kozolis Morris and Thomas E. Morris, challenge the trial court judgment granting summary judgment in favor of defendant, Donald A. Nanz, individually, and dismissing their claim for damages against him in his mdmdual capacity. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 22, 1999, Mary and Thomas Morris purchased a home in Beau Chene Subdivision in Mandeville, Louisiana, from Robert and Harriet Osborne. The Os-bornes had purchased the home from Nanz Enterprises, Inc. following the completion of its construction in August of 1991. Said house had been built following the Os-bornes’ signing of a purchase agreement for the construction of the home, which agreement was signed by Mr. Nanz. On January 13, 2000, plaintiffs filed a petition for damages against several defendants, including Nanz Enterprises, Inc. and its president, Donald A. Nanz, in his individual capacity. In their petition, plaintiffs alleged that sometime after purchasing the residence, they discovered numerous latent defects in the home. Plaintiffs asserted that the manner in which the Nanz defendants constructed the home caused the defects rendering it structurally unsound.

Mr. Nanz answered the petition and thereafter, on April 15, 2004, filed a motion for summary judgment. In his motion, Mr. Nanz asserted that at all relevant times he acted only in his representative capacity on behalf of Nanz Enterprises, Inc. Therefore, Mr. Nanz argued, no genuine issue of material fact existed as to plaintiffs’ claims against him, and he was entitled to judgment as a matter of law. Following a hearing, the trial court agreed with Mr. Nanz. Judgment was signed on September 2, 2004, granting ■ the Lsummary judgment, and dismissing all claims against Mr. Nanz with prejudice. Plaintiffs appealed asserting that the trial court erred in dismissing Mr. Nanz individually.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Cooperative, Inc., 01-2956, p. 3 (La. App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 02-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-02.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of | sproof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2); Robles v. ExxonMobile, 02-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 02-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 03-3439 (La.2/20/04), 866 So.2d 830.

DISCUSSION

The salient issue before us in this matter is whether, based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, Mr. Nanz proved that there were no unresolved issues of material fact as to whether a possible cause of action could be maintained against him. In support of his motion for summary judgment, Mr. Nanz attached excerpts from his deposition, excerpts from plaintiffs’ depositions, a copy of the certificate of occupancy for the residence issued to Nanz Enterprises, Inc., copies of checks issued by the Osbornes to Nanz Enterprises, Inc., copies of invoices to Nanz Enterprises, Inc. by Pella Window Store for the residence, and a copy of the residential building contractor certificate for Nanz Enterprises, Inc. for the year 2000. Our de novo review of the facts in this case compels us to conclude that Mr. Nanz met his burden. The burden then shifted to plaintiffs to come forward with evidence, sufficient to establish their evidentiary burden at trial, that Mr. Nanz was personally | fiIiable for his actions. We conclude that plaintiffs failed to produce such evidence.

Initially, plaintiffs contend that they have alleged a cause of action against Mr. Nanz individually as the builder of their home under the New Home Warranty Act (NHWA). The NHWA was enacted in 1986 and codified in LSA-R.S. 9:3142, et seq., for the purpose of “providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of homeowners’ insurance as additional protection for the public against defects in the construction of new homes.” LSA-R.S. 9:3141. The NHWA provides a “warranty for a new home purchaser defining the responsibility of the builder to that purchaser and subsequent purchasers during the warranty provisions provided herein.” LSA-R.S. 9:3141. Ciliberti v. Mistretta, 03-1559, p. 5 (La.App. 1 Cir. 5/14/04), 879 So.2d 789, 792. At the time plaintiffs’ home was constructed, the definition of “builder” under the NHWA included “any person, corporation, partnership, or other entity which constructs a home, including a home occupied initially by its builder as his residence.” LSA-R.S. 9:3143(1).

In an effort to establish that Mr. Nanz, and not Nanz Enterprises, Inc., was the builder of the home, plaintiffs asserted that Mr. Nanz signed the purchase agreement with the Osbornes in his individual capacity. Admittedly, Mr. Nanz signed the purchase agreement in January of 1991 | individually without any indication of representative capacity. The evidence, however, fails to establish that Mr. Nanz was the builder and seller of the home at issue. Mr. Nanz testified in his deposition that Nanz Enterprises, Inc. is the residential construction company he incorporated in 1984 that built plaintiffs’ residence. The evidence also shows that in January of 1991, the Osbornes made their down payment and interest checks payable to Nanz Enterprises, Inc. for the construction of the home. Additionally, invoices for materials for the house were made to Nanz Enterprises, Inc. The certificate of occupancy for the home, dated August 6, 1991, was issued to Nanz Enterprises, Inc. Further, the sale of the house to the Osbornes was by Nanz Enterprises, Inc., represented by Donald Nanz, its president, by virtue of a recorded and referenced corporate resolution. We conclude that plaintiffs have failed to produce sufficient evidence to establish that Mr. Nanz individually was the builder of the home under the NHWA.

Plaintiffs also claim, however, that Mr. Nanz’s actions were fraudulent, subjecting him to personal liability in that the house was not built according to the plans and specifications as agreed to by Mr. Nanz in the purchase agreement between the Osbornes and Mr. Nanz.

Fraud is a misrepresentation or a suppression of the truth made with the intent to obtain an unjust advantage for one party or to cause loss or inconvenience for the other party. Fraud may result from silence or inaction. LSA-C.C. art. 1953. Further, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the | ^victim's consent to (a cause of) the contract. Shelton v. Standard/700 Associates, 01-0587, pp. 4-5 (La.10/16/01), 798 So.2d 60, 64.

In the present matter, plaintiffs assert that the purchase agreement between the Osbornes and Mr. Nanz is evidence of his fraudulent misrepresentation, since he signed it agreeing to build the home according to the plans and specifications when, in fact, the home was not built in accordance with the plans and specifications. Plaintiffs argue that had they known the house was not built in accordance with the plans and specifications, they would not have relied on same and would not have purchased the home.

Although plaintiffs allege that Mr. Nanz made negligent and fraudulent misrepresentations, the purchase agreement signed in 1991 was between Mr. Nanz and the Osbornes, not between Mr. Nanz and the plaintiffs. Further, Mr. Nanz was not a party to the sale of the home from the Osbornes to the plaintiffs. Plaintiffs admit that they had no communication with Mr. Nanz prior to their purchase of the home. No evidence was presented that, prior to the sale to the plaintiffs, they had any communication of any kind with Mr. Nanz. Plaintiffs did receive a copy of the plans and specifications prior to their purchase, but that was obtained from the Osbornes. Thus, any possible misrepresentations to the plaintiffs could only have been made by the Osbornes, and not by Mr. Nanz. It was impossible for Mr. Nanz to have the intent to obtain an unjust advantage or induce the plaintiffs into buying the home, as Mr. Nanz made no representations to plaintiffs of any kind prior to their purchase.

| flAccordingly, we find no genuine issues of material fact, and that summary judgment was appropriate.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Donald A. Nanz, dismissing plaintiffs’ claims against him individually with prejudice. Costs of this appeal shall be borne by Mary Kozolis Morris and Thomas E. Morris.

AFFIRMED.

WELCH, J., dissents and assigns reasons.

WELCH, J.,

dissenting.

U respectfully dissent from the majority’s affirmance of the summary judgment in this case.

Our summary judgment jurisprudence establishes that weighing evidence has no place in the summary judgment procedure. Campbell v. Hospital Service District No. 1 Caldwell Parish, 35,015 (La.App. 2nd Cir.8/22/01), 793 So.2d 521, 526. After reviewing the deposition testimony and documentary evidence submitted in this case, the majority notes that there is conflicting evidence regarding whether Mr. Nanz built and sold the house to the Osbornes in his individual capacity or in a representative capacity for Nanz Enterprises, Inc. After noting this discrepancy, the majority concludes the evidence “overwhelmingly establishes that Nanz Enterprises, Inc. was the builder and seller of the home at issue.”

In my opinion, the majority’s analysis constitutes an impermissible weighing of the evidence in a summary judgment setting. The fact that the court might conclude that the evidence preponderates in favor of the opponent does not justify the denial of a full trial on the merits to resolve the disputed issue. LeBlanc v. Landry, 371 So.2d 1276, 1279 (La.App. 3rd Cir.1979). Therefore, I think the summary judgment should be reversed and this matter should be remanded for further proceedings.

      . Other motions and exceptions had also been filed on behalf of Mr. Nanz. However, because all claims against Mr. Nanz individually were dismissed by his motion for summaiy judgment, the other pending matters were not ruled upon.

      . Any claims against Nanz, Enterprises, Inc. are not before us in this appeal.

      . The NHWA currently defines "builder" as:
      [A]ny person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or any addition thereto, is a "builder", whether or not the consumer purchased the underlying real estate with the home.
      LSA-R.S. 9:3143(1).

      . Plaintiffs claim in part that the drawings and specifications did not call for synthetic stucco in the construction of the home, but synthetic stucco was used, including areas where brick was depicted. However, we note that the use of synthetic stucco in areas where the plans and specifications called for brick was openly apparent, thereby indicating that at least some deviations from the plans and specifications occurred.


author: MAX N. TOBIAS, JR., Judge.

text:
    Cecile PAYNE v. ORLEANS PARISH SCHOOL BOARD.
    No. 2005-CA-0682.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 2, 2006.

      Philip A. Costa, Costa Law Firm (APLC), New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

_JjThe defendant, the Orleans Parish School Board (“OPSB”), appeals the workers’ compensation judgment awarding the plaintiff, Cecile Payne (“Payne”), compensation benefits and attorney’s fees. The plaintiff answered the appeal, seeking additional attorney’s fees.

Payne was employed with the OPSB in the fall of 2001 as a middle school teacher at Sophie B. Wright Middle School (“SBWMS”). During the fall 2001 semester, SBWMS was under renovation. The students and teachers from the school were sent to Landry Middle School. The students and teachers returned to SBWMS later in the semester when the renovations were completed. Payne sought a “504” accommodation due to the air quality at the school. The accommodation was granted and she was transferred to Israel Augustine Middle School. While at Israel Augustine Middle School, Payne was assigned to team teach with another | ^teacher and tutor students. In addition to these duties, she also substituted for absent teachers when needed.

On 13 December 2001, Payne was substituting for another teacher. Several boys in the class became unruly and disrupted the class. The boys were cursing and punching other students. One of the boys picked up a desk and threw it at Payne. The desk fell on her leg and foot. Payne sent the boys to see Mr. James Gray, the assistant principal and disciplinarian. When the boys returned to the classroom, they cursed and threatened Payne.

Thereafter, Payne did not return to work and on 18 February 2002 informed the school administration that she could not return due to physical and mental injuries from the incident. Payne sought assault pay from the OPSB, but her claim was denied. She filed a claim for workers’ compensation on 23 January 2003. After a trial on 2 September 2004, the workers’ compensation judge rendered a judgment granting Payne compensation benefits, penalties, and attorney’s fees. The judge found that Payne suffered both physical and mental injuries as a result of the incident that occurred within the course and scope of her employment on 13 December 2001. • The judge denied the OPSB’s exception of prescription, finding that Payne was paid wages in lieu of workers’ compensation benefits until 3 May 2002, and she filed her claim within the one year period provided for in La. R.S. 23:1209(A). The judge determined that Payne was entitled to temporary total disability benefits from 4 May 2002 forward and to have all medical bills and expenses, including mileage, paid by the OPSB. The workers’ compensation judge also imposed penalties and attorney’s fees. The judgment provided in pertinent part:

_k* * *
Defendant employer/insurer did fail to timely pay workers’ compensation benefits pursuant to La. R.S. 23:1201 B (TTD, PTD or DEATH), and the defendant did not reasonably controvert the claim nor did it occur due to conditions over which defendant had no control; and
For violation of La. R.S. 23:1201 B, attorney’s fees are awarded in the amount of one thousand five hundred and 00/100 dollars ($1500.00), which are assessed against defendant employer; and
For violation of La. R.S. 23:1201 B a penalty is assessed in the amount of twelve percent (12%) of the unpaid compensation or a total of not more than fifty dollars per calendar day, whichever is greater, but the $50.00 per day penalty not to exceed an aggregate of two thousand dollars ($2,000.00) is assessed against defendant insurer, the Orleans Parish School Board, under La. R.S. 1201 F;
* * *
Defendant employer did fail to timely authorize and/or pay medical benefits pursuant to La. R.S. 23:1201 E, and the defendant did not reasonably controvert the claim nor did it occur due to conditions over which defendant had no control; and
For violation of La. R.S. 23:1201 E, attorney’s fees are awarded in the amount of one thousand five hundred and 00/100 dollars ($1,500.00), which are assessed against defendant employer; and
For violation of La. R.S. 23:1201 D, a penalty is assessed in the amount of twelve percent (12%) of the unpaid compensation or a total of not more than fifty dollars per calendar day, whichever is greater, but with the $50.00 per day penalty not to exceed an aggregate of two thousand dollars ($2,000.00) is assessed against defendant insurer, the Orleans Parish School Board, under La. R.S. 23:1201 F;....

The OPSB appealed the judgment, asserting three assignments of error:

1. The workers’ compensation judge committed reversible error in failing to dismiss the claim based upon the defensive plea of prescription.
2. The workers’ compensation judge committed reversible error in finding that the claimant suffered both physical and mental injuries.
|43. The workers’ compensation judge committed reversible error in assessing penalties and attorney’s fees.

Generally, a worker’s compensation claim is barred unless asserted within one year from the date of the accident. La. R.S. 23:1209A. When the injury does not result at the time of the accident or does not develop immediately after the accident, the one-year limitation does not take effect until one year from the time the injury develops. Id. In such cases, however, the claim is forever barred unless instituted within two years of the accident. Id. Generally, the party pleading prescription bears the burden of proof on the issue, unless prescription is evident from the face of the pleadings, in which case the plaintiff bears the burden of showing that the action has not prescribed. Id.; see also Hardy v. Easy T.V. and Appliances of Louisiana, Inc., 01-0025, p. 7 (La.App. 4 Cir. 12/12/01), 804 So.2d 777, 782, citing Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

Prescription is interrupted by the payment of wages in lieu of compensation when suit is filed within one year of such payment. La. R.S. 23:1209(A); Lester v. Rebel Crane and Service Co., 393 So.2d 674, 676 (La.1981). The test to determine if wages were paid in lieu of compensation is whether the wages were actually earned by the employee. Franz v. New Orleans Breakers, Ltd. Partnership, 515 So.2d 1120, 1123 (La.App. 5 Cir.1987). If the wages were actually earned by the employee, then the wages were not paid in lieu of compensation and prescription is not interrupted. Id.; Ortis v. Ortco Contractors, Inc., 00-1460, pp. 3-4 (La.App. 1 Cir. 9/28/01) 809 So.2d 300, 301; Bledsoe v. Willowdale Country Club, 94-234, p. 4 (La.App. 5 Cir. 9/27/94), 643 So.2d 1302, 1304.

In the present case, Payne relies upon payroll records from the OPSB in support of her argument that she received wages in lieu of compensation benefits. I,/The payroll records indicate that she was paid her salary from 13 December 2001 to 3 May 2002, even though she did not return to work after 13 December 2001. However, the OPSB argues that the workers’ compensation judge erred in admitting the records into evidence because Payne failed to provide testimony authenticating the payroll records as required by La. C.E. article 901(A). We note, however, that article 1101 of the Louisiana Evidence Code indicates that such requirements are not mandatory in workers’ compensation matters. The statute provides in pertinent part the principles of the Code of Evidence “shall serve as guides to the admissibility of evidence” and “the specific exclusionary rules ... shall be applied only to the extent that they tend to promote the purposes of the proceeding.” La. C.E. art. 1101. In admitting the payroll records into evidence, the workers’ compensation judge noted that the OPSB provided the payroll documents to Payne in response to a discovery request. The workers’ compensation judge had the discretion to admit the payroll records into evidence. Also introduced into evidence was correspondence between the plaintiffs counsel and the defendant that suggested that Payne was actually receiving sick leave pay during this time period. The workers’ compensation judge, presented with conflicting evidence, chose to accept Payne’s testimony that she received wages, not sick leave pay. He determined that her wages were not earned and were paid in lieu of compensation benefits. Payne received her last paycheck on 3 May 2002. Her claim, filed on 23 January 2003, was timely. The OPSB’s exception of prescription was correctly denied.

The OPSB argues that the workers’ compensation judge committed reversible error when he found that the plaintiff suffered both physical and mental injuries.

| (¿Payne testified that on the day she was injured, she was substituting for another teacher. Several boys in her class became disruptive and started hitting other students. She sent the boys to Mr. Gray, the assistant principal and disciplinarian. The boys returned to the classroom several minutes before school was over. They continued to hit other students, and cursed and threatened the plaintiffs life. One of the boys picked up a desk and threw it at her. She stated that the desk hit her right shoulder and then fell on her right leg. Payne has a scar approximately one-half inch long from the injury to her leg. She testified that she notified the school secretary the day after the incident that she was injured from the incident and could not return. She also testified that after the incident, she started having nightmares and homicidal thoughts. Payne began treating with Dr. Answar Ismail, a psychiatrist, who diagnosed her as being depressed with suicidal and homicidal tendencies because of traumatic stress. She was still under treatment with Dr. Ismail at the time of trial. Dr. Ismail indicated in his notes that Payne was unable to return to work.

Cynthia Frederick testified on behalf of the plaintiff. Ms. Frederick, a teacher from SBWMS who was also transferred to Israel Augustine Middle School, stated that Payne informed her of the incident where a student hit her with a desk. Ms. Frederick testified that the school atmosphere at Israel Augustine Middle School was chaotic. She stated that students roamed the halls and were very aggressive. Between classes, the students would bang on the doors and use profanity, often cursing other students and teachers. Ms. Frederick stated that a student had assaulted her.

l7Mr. James Gray testified that he did not have any knowledge of the alleged incident. He also stated that the students at Israel Augustine Middle School were typical middle school students and did not pose any major discipline problems.

Ms. Kim Hypolite was the principal at Israel Augustine Middle School at the time of the incident. She testified that she was not on the school premises at the time of the alleged incident. Ms. Hypolite stated that she had no knowledge of the alleged incident until February 2002. She acknowledged that the students would get rowdy and fight among themselves. She also admitted that some of the students were prone to use profanity in their conversations with other students and teachers.

Mr. Kelvin Adams, executive director of middle schools for the OPSB in the fall of 2001, testified that he became aware of an incident that involved Payne and asked Ms. Hypolite to investigate the matter. Mr. Adams stated that the school’s union representative prior to the Christmas break of 2001 informed him of the matter.

Entitlement to weekly workers’ compensation benefits hinges upon a worker’s proof of a disabling work-related injury, whether temporary or permanent. Garnier v. Orleans Parish School Board, 01-0860, p. 20 (La.App. 4 Cir. 7/31/02), 824 So.2d 1222, 1234, citing Parker v. National Linen Service, 95-0500 (La.App. 4 Cir. 3/14/96), 671 So.2d 963. A worker seeking temporary total disability must prove by clear and convincing evidence that he or she is unable to engage in any gainful occupation, whether or not the same type of work he or she was engaged in at the time of injury. La. R.S. 23:1221(l)(c).

La. R.S. 23:1021(8) provides in pertinent part:

|s(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(b)Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subpara-graph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association. [Emphasis in original.]

When the mental injury is caused by mental stress, the plaintiff has the burden of “proving, by clear and convincing evidence, that his mental disorder is the result of ‘a sudden, unexpected, and extraordinary stress related to the employment. ...’” [Emphasis in original] Cressionnie v. Fisk Elec., 93-931, p. 4 (La.App. 5 Cir. 2/14/96), 671 So.2d 3, 5, citing Jeansonne v. Wick Publishing Co., 94-462, p. 5 (La.App. 5 Cir. 11/29/94), 646 So.2d 1212, 1214. A mere showing that a mental injury is related to the general- conditions of employment, or to incidents occurring over an extended period of time, is not enough to entitle the claimant to compensation. Id. The mental injury must be precipitated by an accident, i.e., an unexpected and unforeseen event that occurs suddenly or 19vioIently. Sparks v. Tulane Medical Center Hospital and Clinic, 546 So.2d 138, 147 (La.1989).

Unlike a mental injury caused by mental stress, a mental injury resulting from a work-related physical injury need not be the result of a sudden, unexpected, and extraordinary stress related to the employment. LaDay v. Catalyst Technology, 00-1973, p. 7 (La.App. 1 Cir.11/9/01), 818 So.2d 64, 68. Nevertheless, a physical injury established by objective findings at the time of the event must be clearly shown and the claimed mental illness must be clearly linked to that objective, physical event. Traweek v. City of West Monroe, 30,571, p. 8 (La.App. 2 Cir. 5/13/98), 713 So.2d 6 55, 661.

A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it. Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166, 167-68, citing Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 831 (La.1982).

The cause of disability is to be determined by the totality of the evidence, both medical and lay. Further, in evaluating the evidence, the trier of fact should accept as true the uncontradicted testimony of a witness, even though the witness is a party, at least in the absence of cireum-stances in the record casting suspicion on |inthe reliability of the testimony. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979).

Factual findings in workers’ compensation cases are subject to the manifest error/ clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. Smith v. Louisiana Dept. of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132. In applying the manifest error/ clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Freeman v. Poulan/Weed Eater, 93-1530, p. 5 (La.1/14/94), 630 So.2d 733, 737-38; Stobart v. State, Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882. Thus, “if the [fact-finder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In the case at bar, Payne’s testimony established that the assault occurred. She testified that the student threw a desk at her, resulting in physical injury to her leg. She further stated that she started having nightmares and homicidal thoughts after the incident. She began treating with Dr. Ismail in January of 2002. She was still treating with Dr. Ismail at the time of trial, who diagnosed her as suffering from a major depressive disorder with psychotic features and post-traumatic stress disorder. He concluded that Payne’s illness was a result of the assault. Dr. Ismail _jjjstated that Payne is unable to return to work because of mental stress and danger to others. He opined that she is disabled due to impulse control deficit, psychosis, and violent threats. Ms. Frederick, who stated that students roamed the halls and used profanity regularly, corroborated Payne’s testimony concerning the discipline problem at Israel Augustine Middle School.

While the OPSB’s witnesses dispute that the accident occurred, their testimony is contradicted by each other’s testimony. Mr. Gray testified that the plaintiff never . reported any disruptive students to him. He also stated that the students at Israel Augustine Middle School were no different from other middle schools and that there were no major discipline problems at the school. Ms. Hypolite also stated that there were no major discipline problems at the school. However, Ms. Hypolite admitted on cross-examination that the students at Israel Augustine Middle School fight and use profanity on a regular basis. She indicated that the fighting was a result of the students coming from different housing developments. Ms. Hypolite also testified that she had no knowledge of the alleged assault until February 2002, when she received the incident report. Ms. Hy-polite’s testimony is contradicted by Mr. Adams’ testimony that he asked Ms. Hy-polite to look into the alleged incident in December 2001. Mr. Adams testified that a union representative advised him that something had occurred at the school concerning Payne and he asked Ms. Hypolite, before Christmas, to look into the matter.

We find that Payne has produced clear and convincing evidence that she was injured on 13 December 2001, when a student threw a desk at her. She sustained both physical and mental injuries as a result of the incident. Dr. Ismail stated in the plaintiffs medical records that her illness is due to the assault, which was an | ^unexpected and unforeseen event. Payne had been at Israel Augustine Middle School for only a few weeks when the incident occurred. Both Payne and Ms. Frederick stated that the treatment they received from the students at Israel Augustine Middle' School was unlike that encountered at any other school where they had taught. On cross-examination, Ms. Hypolite admitted that the students at Israel Augustine Middle School were rowdy and used profanity towards the teachers. Based on . the evidence presented, the workers’ compensation judge did not commit manifest error when he determined that the plaintiff proved that she sustained both physical and mental injuries as a result of the incident.

The OPSB also contends that the workers’ compensation judge erroneously granted Payne penalties and attorney’s fees. They argue that they had a reasonable basis to deny the plaintiffs claim.

La. R.S. 23:1201(B) provides that the first installment of compensation benefits for temporary total disability, permanent total disability, or death shall become due the fourteenth day after the employer has knowledge of the injury giving rise to disability. La. R.S. 23:1201(F) further provides that if an installment of benefits is not timely paid within the 14 day period, “there shall be added to such unpaid installment a penalty of ... twelve percent thereof ... unless such nonpayment results from conditions over which the employer or insurer had no control,” or unless “the employee’s right to such benefits has been reasonably controverted by the employer.” Both penalties and attorney’s fees are recoverable under La. R.S. 23:1201(F) if the employer or insurer fails to commence payments of compensation benefits timely or to pay continued installments timely (or to pay 11smedieal benefits timely) unless the claim is reasonably controverted. Williams v. Rush Masonry, Inc., 98-2271, pp. 4-5 (La.6/29/99), 737 So.2d 41, 44.

A claimant’s right to benefits will be deemed “reasonably controverted” if the factual and medical information of the employer reasonably counters that of the claimant. Woods v. Ryan Chevrolet, Inc., 30,206, p. 9 (La.App. 2 Cir. 2/25/98), 709 So.2d 251, 257. If the factual issue is substantial, penalties should be denied; employers, however, must demonstrate that reasonable efforts were made to medically ascertain the worker’s exact condition before denying benefits. Lemoine v. Hessmer Nursing Home, 94-836, p. 20 (La.App. 3 Cir. 3/1/95), 651 So.2d 444, 456. Where a defendant fails to assemble and assess factual and medical information about a claimant’s physical condition before denying a claim, he runs the risk of subjecting himself to statutory penalties. Connor v. Jones Bros. Enterprises, 606 So.2d 996,1004 (La.App. 4 Cir.1992).

A workers’ compensation judge’s determination as to penalties and attorney’s fees is ultimately one of fact and the judge’s finding should not be disturbed on appeal absent manifest error or unless clearly wrong. Bergeron v. Watkins, 98-0717, p. 4 (La.App. 1 Cir. 3/2/99), 731 So.2d 399, 402; Kennedy v. Johnny F. Smith Trucking, 94-0618, p. 8 (La.App. 1 Cir. 3/3/95), 652 So.2d 526, 531; Antrainer v. Great Atlantic & Pacific Tea Co., 97-1554, p. 6 (La.App. 1 Cir. 4/8/98), 712 So.2d 590, 594.

In the present case, the OPSB has not produced any evidence to reasonably controvert Payne’s claim for workers’ compensation benefits and/or medical benefits. No evidence exists that the OPSB sent the plaintiff for an independent medical examination as to either her physical or mental injuries. The OPSB has not produced any documentation indicating that an investigation of the incident 114occurred. The only documentation in the record relating to the denial of the plaintiffs claims is correspondence from the OPSB to Payne’s counsel indicating that the claim was denied. As such, we find no manifest error in the workers’ compensation judge’s award of penalties and attorney’s fees.

Payne also answered the appeal seeking additional attorney’s fees for responding to the appeal filed by the defendant. However, the plaintiff has not filed an appellate brief in this matter and thus has not briefed the issue. Therefore, this issue will be considered as abandoned. Delacroix Corp. v. Dean, 04-0899, p. 4 n. 5 (La.App. 4 Cir. 4/13/05), 901 So.2d 1188, 1192; Drury v. Kitchen, 94-1579 (La.App. 4 Cir. 11/17/94), 645 So.2d 1290. See Rules 2-12.4 and 2-12.6, Uniform Rules, Courts of Appeal.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . La. R.S. 23:1201(F) has subsequently been amended. The quoted language is that which was in effect at the time Payne's cause of action arose.