author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Joy CLAUDIO v. SILLA COOLING SYSTEMS, Atlantic Speciality Insurance Company, John Trapen d/b/a Moisant Enterprises, LLC and Allstate Insurance Company.
    Nos. 10-CA-52, 10-CA-414.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 14, 2010.

      Scott P. Shea, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Jason P. Foote, Attorney at Law, Me-tairie, LA, for Intervenor/Appellee.
    Cy G. Lowe, Jr., Laurent J. Demosthen-igy, Attorneys at Law, New Orleans, LA, for Defendant/Appellants.
    Richard E. King, Jennifer L. Simmons, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| sIn these consolidated appeals, defendant/appellant Atlantic Specialty Insurance Co. (“Atlantic”) appeals an August 31, 2009 judgment confirming a judgment of default in favor of plaintiff/appellee Joy Claudio and intervenor/appellee Hartford Underwriters Insurance Company (“Hartford”). Atlantic specifies the following errors to the proceedings below: (1) there is no competent proof of citation and service of the petition upon Atlantic, (2) Mr. Claudio’s exclusive remedy lies in workers’ compensation, (3) Mr. Claudio and Hartford introduced insufficient evidence to establish a prima facie case to support a default judgment, and (4) the trial court illegally awarded Hartford workers’ compensation intervention payments.

Defendant/appellant Silla Cooling Systems appeals a March 2, 2010 judgment denying its Petition to Annul Default Judgment and overruling an |4exception of no right of action and an exception of lack of subject matter jurisdiction. Silla contends that the trial court erred in denying the Petition and overruling the exceptions because Mr. Claudio’s exclusive remedy lies in workers’ compensation. Silla additionally contends that the trial court did not have subject matter jurisdiction to render judgment against it because Mr. Claudio’s exclusive remedy lies in workers’ compensation.

We agree that Mr. Claudio’s and Hartford’s exclusive remedy lies in workers’ compensation. Accordingly, we vacate the August 31, 2009 judgment confirming the default against Atlantic. We also vacate the March 2, 2010 judgment denying Silla’s Petition to Annul Default Judgment and overruling Silla’s exceptions. We render judgment dismissing 24th J.D. C. case number 652-699 as the District Court lacks subject matter jurisdiction.

FACTS AND PROCEDURAL HISTORY AS TO BOTH DEFENDANTS

Mr. Claudio filed a petition for damages on November 2, 2007. The petition alleged the following: (1) on November 3, 2006, Mr. Claudio was employed by Silla Cooling Systems, (2) while Mr. Claudio was attempting to close a garage door at Silla’s warehouse, the door broke, struck him in the head, and caused him to suffer immediate and severe injury, (3) Mr. Claudio was injured in the course and scope of his employment with Silla, (4) the warehouse wherein Mr. Claudio was injured was owned by John Trapén d/b/a Moisant Enterprises, LLC and leased to Silla, and (5) at all relevant times Silla had a comprehensive general liability insurance policy with Atlantic Specialty Insurance Co.

Silla and Atlantic were named as defendants. Hartford thereafter filed a petition of intervention contending that it had paid Mr. Claudio workers’ | r,compensation benefits in the amount of $1,172.45 and that it was subrogated to the rights of the plaintiff to the extent of those payments.

Neither Silla nor Atlantic answered the petition. On June 2, 2009, the trial court entered a preliminary default judgment against Silla and Atlantic. Mr. Claudio thereafter moved to confirm the preliminary default. At the confirmation hearing, counsel for Mr. Claudio introduced several exhibits into the record, including the commercial lease agreement wherein John Trapén d/b/a Moisant Enterprises, LLC leased the warehouse where Mr. Claudio was injured to Silla Cooling Systems. The lease agreement between John Trapén d/b/a Moisant Enterprises, LLC and Silla provided in pertinent part:

Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damages caused by leaks in the roof by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby.

This clause is in accord with La.R.S. 9:3221, which permits a premises owner to contractually shift liability for injury caused by a defect in the premises to his lessee.

At the conclusion of the confirmation hearing, the trial court confirmed the preliminary default. By judgment dated August 31, 2009, the trial court awarded Mr. Claudio $12,000.00 in general damages, $12,838.92 in lost wages, $3,151.00 in medical expenses, $6,331.53 in workers’ compensation intervention, and judicial interest and court costs. Atlantic appealed from that judgment.

ROn October 12, 2009, Silla filed a Petition to Annul Default Judgment contending that the trial court had no jurisdiction to confirm a default against it because Mr. Claudio’s and Hartford’s exclusive remedy lies in workers’ compensation. Silla also filed an exception of no cause of action and an exception of lack of subject matter jurisdiction making similar arguments. At the conclusion of the hearing on the Petition and the exceptions on March 2, 2010, the trial court concluded:

It presents an interesting point. I think that the contract between the employer and the owner of the property takes away the right of the plaintiff to sue the property owner, he’s stepping into is [sic] shoes, so I’m going to deny your petition for nullity.

On April 5, 2010, the trial court issued a judgment denying the Petition to Annul Default Judgment and overruling the exceptions of no right of action and lack of subject matter jurisdiction. Silla and Atlantic each separately appealed that judgment. We later consolidated Silla’s and Atlantic’s appeals.

WORKERS’ COMPENSATION IMMUNITY

We will consider these assignments of error first because both Silla and Atlantic raised the assignment on appeal and because a determination that the trial court did not have subject matter jurisdiction will end our review. La.C.C.P. art. 3; Landrum v. Board of Com’rs of the Orleans Levee Dist., 95-1591 (La.App.4 Cir. 11/27/96), 685 So.2d 382, 387. Silla contends on appeal that the trial court erred in confirming a default against it because Mr. Claudio’s exclusive remedy lies in workers’ compensation. The argument follows that the trial court was without subject matter jurisdiction to rule on Mr. Claudio’s claims. Alternatively, Silla contends that the trial court erred in overruling its exceptions of no cause of action and lack of subject matter jurisdiction because it is entitled to workers’ compensation immunity. Atlantic similarly contends that the trial court erred in | confirming the preliminary default against it because it is entitled to workers’ compensation immunity-

La.R.S. 23:1032 pertinently provides:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder,- partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer; director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

(emphasis added)

Silla and Atlantic contend that Mr. Claudio is asserting a tort claim against his employer as a lessee under a “dual capacity theory” and that his exclusive remedy therefore lies in workers’ compensation. Mr. Claudio concedes that his tort claim arises under the dual capacity theory. Mr. Claudio contends that the exclusivity provision does not apply here because Silla contractually assumed all responsibility for the condition of the property and agreed to insure the property and Atlantic as an additional insured.

Black’s Law Dictionary defines “dual-capacity doctrine” as “[t]he principle that makes an employer—who is normally shielded from tort liability by workers’compensation laws—liable in tort to an employee if the • employer and employee stand in a secondary relationship that confers independent obligations on the employer.” Black’s Law Dictionary (8th Ed.2004). This definition was adopted by the Third Circuit in Bates v. King, 2004-1564 (La.App. 3 Cir. 11/2/05), 915 So.2d 1037.

The dual capacity theory or doctrine cited in La. R.S. 23:1032 was discussed by the Louisiana Supreme Court in Stelly v. Overhead Door Co. of Baton Rouge, 94-0569 (La.12/8/94), 646 So.2d 905, 910, as follows:

Louisiana’s dual capacity theory or doctrine pertains to employers with multiple relationships, connections or involvement to the employee’s injury and/or the cause of the injury, which ordinarily would result in liability being imposed upon the employer by operation of law in addition to the provisions of the Worker’s Compensation Act. The dual capacity doctrine limits the injured employee’s recovery to worker’s compensation benefits, precluding the pursuit of their tort claims against their employer.

Accordingly, La.R.S. 23:1032 bars suits by employees against them employers, and those others grouped with employers, such as officers and stockholders, under a dual capacity theory. In such a case, “an employer’s second capacity is inextricably intertwined with his capacity as employer.” Wright v. State, 93-3095 (La.7/5/94), 639 So.2d 258, 260.

Mr. Claudio chiefly relies on Stelly v. Overhead Door Co. of Baton Rouge, supra, for the proposition that Silla and Atlantic are not entitled to workers’ compensation immunity. In Stelly, the plaintiff worked for U.P.S. as a mechanic in Opelousas, Louisiana. U.P.S. was the lessor of the building. The lease agreement between U.P.S. and the building owner contained a provision in which U.P.S. expressly relieved the owner of any liability arising from defects in the premises, as is the case here. The Stelly plaintiff was injured while manually attempting to raise an overhead door. Id. at 908. The plaintiff filed a workers’ compensation claim against U.P.S. The plaintiff and his wife also filed tort suit against U.P.S. contending that U.P.S. assumed the building owner’s liability for premises defects in the lease under La.R.S. 9:2222. Id. at 908-09. The plaintiff contended that ^because U.P.S. assumed liability for defects in the premises, it was liable in tort as well as under the Louisiana Workers’ Compensation Act. Id. at 909.

The trial court granted a 'motion for summary judgment filed by U.P.S. The court of appeal affirmed. Stelly v. Overhead Door Co. of Baton Rouge, 93-278 (La.App. 3 Cir. 2/2/94); 631 So.2d 698. The Louisiana Supreme Court granted writs “to determine whether Act 454 of 1989 is interpretative legislation which applies retroactively to the facts of this case and, if not, whether the limitative effects of the pre-amendment version of LSA-R.S. 23:1032 can be interpreted to shield an employer that contractually assumes the liability of an otherwise liable third party, from an unintentional tort action by its injured employee.” Stelly, 646 So.2d at 909.

The supreme court found that “[t]he dual capacity doctrine ... has never encompassed contractually assumed liability. It has consistently been limited to situations involving liability imposed by law due to a legal capacity or status in addition to that of employer.” Id. at 911 (emphasis in original). The Court concluded that “application of Louisiana’s traditional dual capacity doctrine to the facts of this case would not preclude the Stelly’s tort suit against UPS.” Id.

However, as is apparent from the Supreme Court’s expressly stated reason for granting writs, the Stelly court was interpreting an earlier version of La.R.S. 23:1032. The legislature amended La. R.S. 23:1032 by 1989 LaActs No. 454, § 2, effective January 1, 1990, which added subsection La.R.S. 23:1032(A)(l)(b) to the statute. This amendment excluded all claims by an employee brought against an employer under any theory of “dual capacity.” In Stelly, the Supreme Court expressly “decline[d] to address the impact of the post-amendment version on this | inaction and/or whether the statute refers to Louisiana’s traditional dual capacity doctrine or a more expansive version of the doctrine.” Id. at 909.

Post-Stelly, the vast majority of courts have held that the amended version of R.S. 23:1032 precludes any tort claim against an employer, even against an employer who has contractually assumed the owner’s liability, as is the case here. The case arising out of this Court with facts most similar to the facts in this case is Dufrene v. Insurance Co. of Pennsylvania, 01-47 (LaApp. 5 Cir. 5/30/01), 790 So.2d 660. Strangely enough, the Dufrene plaintiff was also a U.P.S. employee. She was injured in the course and scope of her employment when she fell off a ramp intended for handicapped access to the building where she worked. U.P.S. did not own the building in question, rather, U.P.S. leased the building from 155 Brook-hollow Associates. Id. at 663. The lease between Brookhollow Associates and U.P.S. provided that U.P.S. would assume “responsibility for the condition, operation, repair, replacement, maintenance and management of the entire property.”

The plaintiff filed suit against U.P.S. and Brookhollow Associates. Before the case was submitted to the jury for deliberations, U.P.S. filed a peremptory exception of no cause of action contending that the exclusive remedy for the plaintiff against U.P.S. was in workers’ compensation under La.R.S. 23:1032. Id. at 664. The trial court orally denied the exception. The jury determined that U.P.S. and Brookhol-low Associates were not at fault in causing the plaintiffs injuries, however, the trial court granted a motion for judgment notwithstanding the verdict and rendered judgment in favor of the plaintiff. The trial court assessed sixty percent of the fault to Brookhollow Associates and forty percent of the fault to U.P.S. Id.

|uOn appeal, U.P.S. contended that the trial court erred in denying its exception of no cause of action. Id. at 668. We agreed, holding “that the legislature intended to exclude all non-intentional tort claims of an employee against an employer for injuries which result from the conditions of the employer’s premises.” Id. at 669. We reversed the part of the trial court’s judgment which awarded damages to the plaintiff against U.P.S. as lessee of the building. Id. at 670.

Similarly, in Hesse v. Champ Service Line, 97-1090 (La.App. 8 Cir. 2/4/98), 707 So.2d 1295, an employee sued his employer after he was electrocuted at work. He claimed the injury occurred as a result of the failure to install equipment to prevent such injuries. He sued his employer, claiming his employer had assumed liability for defects in the premises from the ownerAessor of the building pursuant to La.R.S. 9:3221. The Third Circuit held that Stelly was not controlling and that “[t]he dual capacity doctrine has been legislatively abrogated.” Id. at 1297. The Third Circuit additionally determined that the employee’s exclusive remedy was in workers’ compensation. Other cases with similar facts have reached the same conclusion. See, e.g., Gaspard v. Graves, 2005-1042 (La.App. 1 Cir. 3/29/06), 934 So.2d 158 (sole owners of employer of claimant had leased personally-owned premises to employer, but claimant who was injured by alleged defect on those premises was unsuccessful in attempt to proceed under dual capacity theory); Robinson v. Archdiocese of New Orleans, 1998-1238 (La.App. 4 Cir. 3/31/99), 731 So.2d 979 (employee could not sue employer in tort, even though employer as lessee of building had assumed responsibility for premises in lease under clause authorized by La.R.S. 9:3221); Martin v. Stone Container Corp., 31,544 (La.App. 2 Cir. 2/24/99), 729 So.2d 726 (tort claim against employer barred even when employer has assumed obligations of a building owner); Douglas v. Hillhaven Rest Home, Inc., 1997-0596 (La.App. 1 Cir. 4/8/98), 709 So.2d 1079 (same); Dumestre v. Hansell-Petetin, Inc., 96-1778 (La.App. 4 Cir. 1/29/97), 688 So.2d 187 (same).

In this case, Silla leased the building from John Trapén d/b/a Moisant Enterprises, LLC and assumed liability for defects in the premises in the lease agreement. The parties do not dispute that Mr. Claudio was injured in the course and scope of his employment. Mr. Claudio’s petition for damages indicates that “Silla Cooling Systems ... is strictly liable for the defective condition of the building under Civil Code Article 2322.” The petition also indicates that “Atlantic Specialty Insurance Company had in full force and effect a policy of comprehensive general liability wherein the named insured was Silla Cooling Systems, the issuance of said policy renders Atlantic Specialty Insurance Company liable for all damages attributable to Silla Cooling Systems.” Clearly, Mr. Claudio is attempting to utilize the dual capacity theory in an attempt to circumvent the tort immunity prescribed in La.R.S. 23:1032. The jurisprudence of this state post-Sie% reveals when an employer leases a building, and an employee is injured as a result of an alleged defective condition of the building, the employee’s exclusive remedy lies in workers’ compensation, even when the employer assumes obligations of a building owner.

We agree with Silla and Atlantic that the district court did not have jurisdiction over the dispute at issue. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based on the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La. C.C.P. art. 3. It is the duty of the | ¶ocourt to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. Boudreaux v. State, Dept. of Transp. and Development, 2001-1329 (La.2/26/02), 815 So.2d 7, 13.

Pursuant to La. Const, art. V, § 16, original jurisdiction of all civil and criminal matters is vested in district courts, except as otherwise authorized by the constitution or “except as heretofore or hereafter provided by law for administrative agency determinations in [workers’] compensation matters.” Sampson v. Wendy’s Management, Inc., 593 So.2d 336, 337 (La.1992).

La.R.S. 23:1310.3(E) provides that except in limited circumstances not relevant to this appeal, “[t]he workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of’ the workers’ compensation laws. However, the mere involvement of the workers’ compensation statute or a workers’ compensation claim does not automatically subject the entire matter to the jurisdiction of the Office of Workers’ Compensation. TIG Insurance Company v. Louisiana Workers’ Compensation Corporation, 04-2608 (La.App. 1st Cir.6/10/05), 917 So.2d 26, 28, writ denied, 05-1821 (La.1/27/06), 922 So.2d 553. The Louisiana Supreme Court has made it clear that the grant of jurisdiction in La. R.S. 23:1310.3(E) is quite specific and provides for workers’ compensation jurisdiction only for “claims or disputes arising out of’ the Workers’ Compensation Act. Broussard Physical Therapy v. Family Dollar Stores, 2008-1013 (La.12/2/08), 5 So.3d 812, 815.

As we have previously explained, Mr. Claudio’s exclusive remedy arises out of the workers’ compensation law. The courts of this state have long held that whenever the Workers’ Compensation Act is applicable, the employee cannot pursue any remedy for damages against his employer in custodial liability, as pleaded in Mr. Claudio’s petition. It is clear that Mr. Claudio’s claim “arises out 114of ’ the Workers’ Compensation Act. The parties do not dispute that Mr. Claudio was a Silla employee and that he was injured in the course and scope of his employment with Silla. The Workers’ Compensation Act pertinently provides, as it has without alteration since 1914:

If an employee not otherwise eliminated from the benefits of this Chapter, receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons hereinafter designated.
La.R.S. 23:1031(A)

The district court lacks subject matter jurisdiction to adjudicate Mr. Claudio’s claim because the Office of Workers’ Compensation has exclusive, original jurisdiction over this dispute. Accordingly, the judgments of the trial court are rendered void and are vacated.

CONCLUSION AND DECREE

For the reasons assigned, the March 2, 2010 judgment denying Silla’s Petition to Annul Default Judgment and overruling the exception of no right of action and the exception of lack of subject matter jurisdiction is vacated. The August 31, 2009 judgment confirming the preliminary default in favor of Mr. Claudio and Hartford is vacated. Judgment is rendered dismissing 24th J.D.C. case number 652-699 as the District Court lacks subject matter jurisdiction.

JUDGMENTS VACATED; JUDGMENT RENDERED; CASE DISMISSED.

      . At various points in the record, Mr. Claudio is referred to “Joey Claudio.”

      . La.R.S. 9:3221 provides:
      Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

      . Stelly’s injury took place prior to the effective date of the amendment.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Fate Vincent WINSLOW, Appellant.
    No. 45,414-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Rehearing Denied Jan. 20, 2011.

      Fate Vincent Winslow, In Proper Person.
    Paula Corley Marx, W. Jarred Franklin, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, II, District Attorney, Suzanne M. Owen, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

|2Following a jury trial, the defendant, Fate Vincent Winslow, was convicted as charged of distribution of marijuana, in violation of La. R.S. 40:966(A)(1). He was subsequently adjudicated a fourth felony offender and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Due to the trial court’s failure to rule on the defendant’s motions for new trial and post verdict judgment of acquittal prior to sentencing, this court vacated the defendant’s sentence and remanded the matter to the trial court. On remand, the trial court denied the defendant’s motions and resentenced him to life imprisonment at hard labor without benefits. The defendant appealed. We affirm the defendant’s conviction, adjudication as a fourth felony offender, and sentence.

FACTS

| ¡¡During the evening of September 5, 2008, the Shreveport Police Department conducted an undercover prostitution operation. Officer Jerry Alkire was one of the undercover officers assigned to this operation. Wearing an audio surveillance device that transmitted his verbal transactions back to a surveillance officer, he entered a high crime area known for prostitution and narcotics on foot. He encountered the defendant and a white male.

The defendant initiated contact with the officer, asking what he was looking for. Officer Alkire responded that he was looking for a girl, meaning a prostitute. The defendant said he could get him a girl and then asked if he was looking for anything else. The officer said he was not looking for anything else but would take some weed if the defendant had it. The defendant stated that he could get it for him and asked how much he wanted. Officer Al-kire asked if he could get two dime bags (street slang for two $10 bags of marijuana). The defendant said he could and asked if the officer had money. When the officer refused to front the money, the defendant said he would go get the drugs for a total of $25; the extra $5 was for going to get it. The defendant then told the white male that he needed his bike. The man allowed him to borrow it.

RDuring the 10 minutes that the defendant was gone, Officer Alkire was approached by three black males; one asked the officer what he was looking for. The officer informed him that he was already being taken care of. One of the men produced a bag containing what appeared to be crack cocaine. The white male then told the other men that the officer was buying some weed. When one of the men asked the officer if he had money, he said he did not because he was concerned that the men meant to rob him. Officer Alkire lied and said he intended to take the defendant to his apartment to get money to pay for the marijuana. The men then walked off.

The defendant returned on the bike. Officer Alkire observed the defendant stop and talk to the departing men for a few minutes. The defendant then returned to the officer with the marijuana and asked to be paid. Before paying, the officer observed that the substance produced by the defendant looked and smelled like marijuana. The officer gave the defendant a $20 bill and a $5 bill. The defendant asked if Officer Alkire had any more money. He said he had $4. The defendant offered to escort the officer back to his apartment for $4 to make sure he wasn’t robbed. The officer agreed.

The white male was walking behind them with his bike. He began to complain that the defendant had used his bike and he had gotten nothing for it. The defendant went over to the man, talked to him, and handed him |asomething. At this point, the officer gave the code word to alert the surveillance officer that he was ready for the defendant to be arrested.

Sergeant Ricky Scroggins pulled up in an unmarked car. The defendant was placed under arrest and searched. The officers recovered two $5 bills and a $1 bill. When they asked the defendant where the $20 bill paid to him by the officer was, the defendant denied selling drugs to Officer Alkire, insisting that “the white boy” sold him the drugs and had his money. The defendant was placed in the back of a patrol unit. Officer Alkire and Sergeant Scroggins went in search of the white male who had been walking with the defendant and the officer. They located him nearby. The $20 bill was recovered from the white male; he was not arrested.

The defendant was charged with distribution of marijuana. Following a jury trial, he was convicted as charged by a vote of 10 to 2.

The state filed a habitual offender bill against the defendant. He was adjudicated a fourth felony offender and sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. In a subsequent hearing, the defendant’s Dorthey motion, motion for new trial, and motion for post verdict judgment of acquittal were denied.

The defendant appealed. During a jurisdictional check by the appellate court, an error patent was discovered in that the trial court did not deny the ^defendant's motion for new trial and motion for post verdict judgment of acquittal prior to sentencing. This court vacated the defendant’s sentence and remanded the matter to the trial court for further proceedings. We directed the trial judge, in resentenc-ing the defendant, to reiterate the denial of pending pro se motions for clarity of the record. In compliance with this court’s order, on remand, the trial court denied all motions and resentenced the defendant to life imprisonment at hard labor without benefits.

The defendant appealed again. Counsel for the defendant made three assignments of error. Additionally, the defendant made five pro se assignments of error.

SUFFICIENCY OF EVIDENCE

Both defense counsel and the defendant pro se challenged the sufficiency of the evidence supporting his conviction for distribution of marijuana. In particular, defense counsel argued that Officer Alkire may have been confused about who sold him the drugs because of the presence of the other men and the potential danger they posed to the officer’s safety.

To present sufficient evidence of distribution of a controlled dangerous substance (CDS), the state must prove the following elements: (1) delivery or physical transfer of the CDS to its intended recipient; (2) guilty knowledge of the CDS at the time of the transfer; and (3) the exact identity of the CDS. State v. Ashley, 44,861 (La.App.2d Cir.10/28/09), 26 So.3d 193.

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. On appeal, a reviewing court must view the evidence in the light most favorable to the state and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Brown, 43,916 (La.App.2d Cir.2/25/09), 4 So.3d 301, writ denied, 2009-0701 (La.12/11/09), 23 So.3d 912.

This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La. App.2d Cir.1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, vnit denied, 2009-0725 (La.12/11/09), 23 So.3d 913; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. The testimony of a single undercover police officer is sufficient to convict one charged with the distribution of a CDS. State v. Kelley, 36,602 (La. App.2d Cir.1/29/03), 836 So.2d 1243.

Officer Alkire testified that the defendant asked him what he wanted and told him that he could get him two dime bags of marijuana; the defendant then left to get the marijuana, returned and handed the marijuana to the officer in exchange for $25. Sergeant Scroggins corroborated Officer Alkire’s testimony; he testified that he heard the transaction over the officer’s audio transmitting device and saw the defendant and Officer Alkire make a hand-to-hand exchange. A forensic chemist testified that the substance that the defendant sold to Officer Alkire was, in fact, marijuana.

|9In viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant committed the offense of distribution of marijuana. This court does not reweigh evidence or reassess the credibility of witnesses. The jury was given the opportunity to assess the credibility of the state’s witnesses, and this court must accord great deference to the jury’s decision to accept that testimony as credible.

These assignments of error lack merit.

HABITUAL OFFENDER

ADJUDICATION

In adjudicating the defendant as a fourth felony offender, the trial court relied upon evidence of the following prior convictions: 1985 simple burglary, 1994 simple burglary, and 2004 possession of Schedule II CDS (cocaine). The state produced certified bills of information with the defendant’s fingerprints in the 1985 and 2004 cases and an arrest sheet with his fingerprint in the 1994 one. A fingerprint expert took the defendant’s prints in open court and compared them to the prints found on these documents; he testified that they all matched. The documents which contained the defendant’s fingerprints were also supported by certified court minutes.

199⅛ Simple Burglary Conviction

10 Defense counsel argues that the trial court erred in adjudicating the defendant as a fourth felony offender. Specifically, he asserts that in proving his 1994 simple burglary conviction, the state utilized fingerprints on an arrest booking sheet; no bill of information with prints was provided or used. He maintains that no evidence linked the arrest record to the bill of information and that the state failed to show that the person arrested was the same person subsequently convicted.

To prove that a defendant is a habitual offender, the state, among other things, must establish by competent evidence, that there is a prior felony conviction and that the defendant is the same person who was convicted of that prior felony. State v. Chaney, 428 So.2d 1092 (La.1982). The Louisiana Supreme Court has repeatedly held that La. R.S. 15:529(F) does not require the state to use a specific type of evidence to carry its burden at a habitual offender hearing and that prior convictions may be proved by any competent evidence. State v. Lindsey, 1999-3302 (La.10/17/00), 770 So.2d 339. When proving at a habitual offender hearing that a defendant is the same person convicted in the earlier proffered predicate offenses, the state may accomplish this through different means, including the testimony of witnesses, expert testimony as to the fingerprints of the accused when compared to those in the prison record introduced or by photographs |n contained in the duly authenticated record. State v. Henry, 42,416 (La.App.2d Cir.9/19/07), 966 So.2d 692, writ denied, 2007-2227 (La.8/29/08), 989 So.2d 95.

An arrest register containing the defendant’s fingerprints, when admitted with a bill of information, matching the name, arrest date and item number from the arrest register, may be used in lieu of a fingerprinted bill of information to prove a prior conviction by a defendant. State v. Lindsey, supra; State v. Breaux, 00-236 (La.App. 5th Cir.8/29/00), 767 So.2d 904, 909, writ denied, 2000-2874 (La.6/29/01), 794 So.2d 808; State v. Cosey, 2004-2220 (La.App. 4th Cir.7/13/05), 913 So.2d 150, 153-154.

The state’s use of an arrest report containing the defendant’s fingerprint, in combination with certified minutes and a bill of information, was sufficient to prove that the defendant was the same person convicted of simple burglary in 1994.

1985 Simple Burglary Conviction

The defendant made a pro se assignment of error that the state failed to prove his 1985 conviction for simple burglary. He contends that the evidence produced by the state, a bill of information, did not prove that he was actually convicted of simple burglary; he asserts that the conviction was for attempted simple burglary.

|1gThe state presented the testimony of a fingerprint expert that the prints he took from the defendant in open court matched those on the bill of information for the 1985 simple burglary conviction. The bill of information was admitted into evidence with a certified copy of the court minutes reflecting the conviction. Therefore, the state submitted sufficient evidence to prove that the defendant was the same person who committed the 1985 simple burglary.

Readjudication

In a pro se assignment of error, the defendant claims that the trial court erred in not readjudicating him as a habitual offender. Failure to rule on post verdict motions, such as a motion for new trial or motion for post verdict judgment of acquittal, prior to sentencing constitutes error patent necessitating vacation of sentence. State v. Jackson, 614 So.2d 783 (La.App. 2d Cir.1993). As a result, this court vacated the defendant’s sentence as a habitual offender; the actual adjudication was not vacated. Therefore, there was no reason to readjudicate the defendant as a habitual offender.

These assignments of error have no merit.

EXCESSIVE SENTENCE

Defense counsel contends that the life imprisonment sentence imposed was excessive for this offender and this offense. Similarly, the defendant’s | mpro se assignment of error asserts that the trial court erred in failing to consider La. C. Cr. P. Art. 894.1 before imposing sentence.

La. R.S. 15:529.1(A)(l)(C)(ii) provides the following for sentencing a person adjudicated a fourth felony offender:

If the fourth felony and two of the prior felonies are felonies defined as a ... violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

Thus, La. R.S. 15:529.1(A)(l)(c)(ii) mandated a life sentence without benefits for the defendant because he is a fourth felony offender. Two of the prior felonies were simple burglaries, which are punishable by imprisonment for 12 years under La. R.S. 14:62, while the present offense of distribution of marijuana is punishable by imprisonment of 5 to 30 years under La. R.S. 40:966(B)(3).

Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714; State v. Lee, 39,969 (La.App.2d Cir.8/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.9/1/06), 936 So.2d 195. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article 114when the court had no discretion in sentencing the defendant. State v. Lee, supra.

As this court stated in State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, 685, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490:

Although ... the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. [Citations omitted.]

Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 1997-1906 (La.3/4/98), 709 So.2d 672. The mandatory life sentences required are presumptively constitutional and should be accorded great deference by the judiciary. State v. Lee, supra. The burden was on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. In order to do so, it must be clearly and convincingly shown by the defendant that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, supra at 676.

| ^Furthermore, a trial judge may not merely rely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason, for declaring such a sentence excessive. State v. Lindsey, supra; State v. Lee, supra.

The defendant has failed to rebut the presumption by showing that he is exceptional. The fact that his prior offenses were nonviolent is, by itself, insufficient.

These assignments of error lack merit.

LA. C. CR. P. ART. 782

In a pro se assignment of error, the defendant maintains that La. C. Cr. P. art. 782(2) is unconstitutional because it allows a defendant to be convicted of a felony by a non-unanimous jury. In support of his argument, he cites Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), and argues that the issue is unsettled because no majority prevailed on the United States Supreme Court regarding the constitutionality of non-unanimous verdicts in noncapital cases.

The constitutionality of La. C. Cr. P. art. 782(A) has been consistently upheld by the Louisiana Supreme Court. State v. Bertrand, 2008-2215 (La.3/17/09), 6 So.3d 738, 741-742; State v. Edwards, 420 So.2d 663 (La. 1982); State v. Simmons, 414 So.2d 705 (La.1982); State v. Jones, 381 So.2d 416 (La.1980). Additionally, as explained in State v. Bertrand, supra, subsequent decisions by the United States Supreme Court have indicated that, although no majority emerged from the Apodaca case, the constitutionality of non-unanimous jury verdicts is well settled. See also State v. Malone, 43,548 (La.App.2d Cir. 11/19/08), 998 So.2d 322, writ denied, 2009-0198 (La.10/30/09), 21 So.3d 275.

This assignment of error is meritless.

CONCLUSION

The defendant’s conviction, adjudication as a fourth felony offender, and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, DREW and MOORE, JJ.

Rehearing denied.

      . State v. Dorthey, 623 So.2d 1276 (La.1993).

      . A certified bill of information — without fingerprints — was also introduced for the 1994 conviction.

      . We note that the minutes indicate that while the defendant pled guilty to simple burglary, one of his codefendants entered a plea to attempted simple burglary.


author:
KLINE, J.
      PETTIGREW, J., KLINE, J.

text:
    BOARD OF ETHICS In the Matter of Greggory DAVIES.
    No. 2010 CW 1339.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Opinion on Rehearing Dec. 30, 2010.
    Rehearing Denied Jan. 19, 2011.

      Bobby L. Culpepper, Jonesboro, Louisiana, for Plaintiff/Relator, Greggory Davies.
    Alesia M. Ardoin, Baton Rouge, Louisiana, for Respondent, Louisiana Board of Ethics.
    Before KUHN, PETTIGREW, and KLINE JJ.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

12Gregory Davies filed a writ application with this court, which we granted, challenging a decision of the Louisiana Ethics Adjudicatory Board (Board) that denied Davies’ exception of prescription. Concluding that substantial rights of Mr. Davies have been prejudiced, we reverse the decision of the Board, maintain the exception, and dismiss the action with prejudice.

PERTINENT FACTS AND PROCEDURAL HISTORY

On February 18, 2010, the Board, pursuant to authority provided in The Code of Governmental Ethics, La. R.S. 42:1141(0, voted to file formal charges against Mr. Davies, the former Chief Deputy of Winn Parish Sheriffs Office. The Board alleged violations of The Code of Governmental Ethics (concerning his use of Sheriffs Office personnel and equipment for his personal purposes and to obtain things of economic value to which he was not entitled.) The formal charges were filed at the conclusion of the Board’s investigation of an unsworn complaint it had received on April 2, 2008, regarding the alleged violations. On [ sMareh 1, 2010, Mr. Davies was notified of the filing of the charges. By-telephone conference call, the parties set dates and deadlines for discovery, set a hearing for all preliminary matters and exceptions for May 28, 2010, and set the public hearing for July 23, 2010.

On May 13, 2010, counsel for Mr. Davies filed an exception of prescription, urging that the Boards’ filing of formal charges against Mr. Davies was beyond the one-year period provided by a statutory provision enacted in the interim between the Board’s vote to conduct an investigation and its actual filing of the formal charges. This one-year period arguably shortened an existing two-year period of limitation to one year. Mr. Davies asserted that pursuant to the one-year proviso in the statute, the charges against him were prescribed and he sought their dismissal.

After a hearing on May 28, 2010, during which arguments were presented, the Board rendered an opinion on July 9, 2010, holding that the statute providing a one-year period for filing charges was not to be applied retroactively. Accordingly, it ruled that the charges filed against Mr. Davies were within the two-year period in effect when the Board voted to investigate the matter and, therefore, were timely filed. The exception of prescription was denied, and this writ application by Mr. Davies followed. This court granted writ of certiorari to consider the propriety of that decision.

Mr. Davies assigns as error that the Board erred as a matter of law in failing to sustain his exception of prescription.

DISCUSSION

The primary issue before this court is whether the Board erred in finding the charges against Mr. Davies are not prescribed. To resolve that issue, this court’s _[^inquiry is twofold: (1) which, of two seemingly related existing statutes is applicable; and (2) if the later enacted statute applies, this court must then determine whether that statute [ (La. R.S. 42:1141(C)(3)(c), limiting to one-year the amount of time within which the Board can bring charges), enacted after the Board began an investigation but before the formal charges were brought against Mr. Davies], is subject to retroactive or prospective application.

Standard of Review

Judicial review of the decision of the Board is conducted in accordance with the Louisiana Administrative Procedure Act (APA). La. R.S. 42:1143. The APA specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. La. R.S. 49:964(F). La. R.S. 49:964(G) governs the scope of the court’s review as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

| ¿Applicable Law

First, in 1979, the legislature reenacted the Code of Governmental Ethics, in La. R.S. 42:1101, et seq., effective April 1, 1980. La. R.S. 42:1163, entitled “prescription” provided:

No action to enforce any provision of this Chapter shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever period is shorter.

Acts 1979, No. 433, § 1, Effective April 1, 1980. This “two-year” statute remains unchanged and in effect to date.

Subsequently, in 2008, the legislature enacted Act 23 of the First Extraordinary Session of 2008, providing a one-year period within which the Board shall issue charges, effective August 15, 2008, as follows:

If the Board does not issue charges within one year from the date upon which a sworn complaint is received, or, if no sworn complaint was received, within one year from the date the Board voted to consider the matter, the matter shall be dismissed.

The statute was originally labeled as La. R.S. 42:1141(C)(2)(b). But by Act 128 of the Regular Session of 2008, the legislature re-designated it as R.S. 42:1141 (C)(3)(c), leaving the statute substantively unchanged. Notably, the previously enacted two-year statute entitled “prescription,” La. R.S. 42:1163, was neither repealed nor modified during the re enactment.

Chronologic Summary of Facts and Events

To simplify and clarify the analysis required to resolve the issue, a chronologic summary of the foregoing facts, which are undisputed, is helpful:

April 1, 1980: Effective date of reenactment of two-year prescriptive statute (La. R.S. 42:1163); this statute remained in effect at all times concerning this matter.
April 8, 2008: The Board received an unsworn complaint regarding alleged potential violations of the Code of Ethics by Mr. Davies.
May 8, 2008: By majority vote of its membership, the Board voted to refer the matters complained for investigation.
| eMay 19, 2008: Mr. Davies was notified, by certified mail, of the Board’s vote to conduct a confidential investigation.
August 15, 2008: Effective date of statute La. R.S. 42:1141(C)(3)(c), providing a one-year prescriptive period.
February 18, 2010: After concluding the investigation, and reviewing the confidential investigation report by the staff of the Louisiana Ethics Administration Program, the Board, by majority vote of members present, voted to file formal charges against Mr. Davies.
March 1, 2010: The Board notified Mr. Davies, by certified mail, of the formal charges pending against him.
March 16, 2010: Mr. Davies filed a peremptory exception of prescription, asserting the Boards’ filing of formal charges against him was prescribed, pursuant to Section 708 of the Rules governing the Board and La. R.S. 42:1141(C)(3)(c).
May 28, 2010: A public hearing on the exception was held before the Board, Panel A, comprised of Judges Kopynec, Cooper, and Taylor. The panel concluded that La. R.S. 42:1141(C)(3)(c) should not be applied retroactively. The panel held that the two-year period was applicable, and found the Board’s filing of formal charges on March 1, 2010, was timely, as it had until April 8, 2010, (two years from the date of discovery on April 8, 2008, of the alleged violation) to file formal charges.

Applicable Statute

Since both La. R.S. 42:1163, effective in 1980, and La. R.S. 42:1141 (C)(3)(c), effective in 2008, both appear to relate to prescription for prosecuting violations of the Code of Governmental Ethics, and provide two different time periods, we must first determine which of the two statutes eon-trols prescription in this matter. To reiterate, if we determine that La. R.S. 42:1141(C)(3)(c) controls, the issue then becomes whether this section applies retroactively or prospectively, since this section became effective on August 15, 2008, between the Board’s vote to investigate and the filing of formal charges.

If La. R.S. 42:1141(C)(3)(c) is applied prospectively only, then arguably the two year period for commencing an enforcement action under La. R.S. 42:1163 would apply and the charges against Mr. Davies would not be prescribed. If, [7however, La. R.S. 42:1141 (C)(3)(c) is applied retroactively, the filing of charges against Mr. Davies is prescribed, having occurred more than one year (approximately one year and nine months) after the Board’s vote to consider the matter.

On careful analysis, we conclude that the one year prescriptive period provided under La. R.S. 42:1141 (C)(3)(c) applies to the matter before us. “Where there is a conflict between two statutory provisions, the statute that is more specifically directed to the matter at issue must prevail over the statute that is more general in character.” Johnson v. Shafor, 08-2145, 08-2146, p. 9 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, 940, writ denied, 09-1921 (La.11/20/09), 25 So.3d 812. We conclude, as did the Board, that the more restrictive limitation specifically directed to the matter at issue is found in La. R.S. 42:1141(C)(3)(e). Further, under general rules of statutory construction, the latest expression of the legislative will is considered controlling and prior enactments in conflict are considered as tacitly repealed in the absence of an express repealing clause. Humphrey v. City of New Orleans, 05-979, p. 12 (La.4/4/06), 925 So.2d 1202, 1210. We also agree with the Board that La. R.S. 42:1141(0(3)(c) is the latest expression of legislative will and is the controlling statute here.

Retroactive Application

We next determine whether La. R.S. 42:1141(C)(3)(e), limiting to one-year the amount of time within which the Board can bring charges, is subject to retroactive or prospective application. We again emphasize that this statute was enacted after the Board began an investigation but before the formal charges were brought against Mr. Davies. We conclude that La. R.S. 42:1141 (C)(3)(c) is to be applied retroactively.

LAs this court instructed in In re Succession of Young, 98-1073, p. 5 (La.App. 1 Cir. 5/14/99), 732 So.2d 833, 835-36, “[t]he general rule is that a newly created statute of limitations or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights.” Further, “after the promulgation of a law, each person is charged with knowledge of it.” Id. Additionally, while La. R.S. 1:2 provides that no statute is retroactive unless it expressly so states, Louisiana courts have consistently interpreted the general rule of prospective application as follows:

[t]he general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention.

Lott v. Haley, 370 So.2d 521, 523 (La.1979).

In these regards, we note that the Board voted to refer the claims against Mr. Davies for investigation in May 2008, about three months prior to the enactment of the one-year limitation of La. R.S. 42:1141 (C)(3)(c). Accordingly, the Board had about nine months to issue charges and still comply with the one-year limitation.

We acknowledge the Board’s arguments that the jurisprudential rule of retroactive application of limitations statutes is inapplicable when the legislature has otherwise expressed its intent that the Act be applied prospectively only. The Board maintains the legislature did express its intent in this case by giving the statute a future effective date, citing Cole v. Celotex Corp., 599 So.2d 1058, 1064 (La.1992), and other cases. We observe, however, that in Cole, the statute construed had more than an effective future date; it had a clause that clearly and |9unmistakably expressed the legislature’s intent regarding prospective application, as follows:

[t]he provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective!)]

Cole, 599 So.2d at 1064. Further, construing Cole, the supreme court in St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992), instructed that the legislature’s selection of a delayed effective date evidences some, albeit inconclusive, intent of prospective application. Accordingly, we conclude that the inclusion of a future effective date in the statute at issue fails to establish proof of intent for prospective application.

Additionally, the Board urges the “well-established jurisprudential rule” that statutes relating to prescription are strictly construed against prescription and in favor of the “obligation” sought to be extinguished. Thus, when faced with two possible constructions, that which favors maintaining an action, as opposed to barring one, then the one favoring survival of an action should be adopted. See Mallett v. McNeal, 05-2289, 05-2322, p. 5 (La.10/17/06), 939 So.2d 1254, 1258.

In response and in this regard, however, we observe that no “obligation” exists to be extinguished. And the Board cites no vested right, nor are we aware of any, to issue charges against Mr. Davies. To the contrary, the one-year limitation gives Mr. Davies an enforceable expectation that charges will be dismissed if the Board does not issue them within one year of the filing of a sworn complaint or from the Board’s vote to consider a matter. Without an impingement on vested rights, a prescriptive statute should be given retroactive application. See Lott, id.

Synopsis

In synopsis, we conclude the following:

• Whether or not La. R.S. 42:1163 and La. R.S. 42:1141(C)(3)(c) conflict, the one-year limitation provided under La. R.S. 42:1141(C)(3)(c) is applicable | atiere. The one-year limitation is the more specific provision and is the most recent pronouncement of legislative will.
• We conclude that La. R.S. 42:1141(C)(3)(c) is to be given retroactive application. Procedural laws are generally given retroactive effect, even those that shorten existing periods of limitation, provided the change gives a reasonable time to those affected to assert their rights. Here, the Board had around nine months to issue charges after the one-year limitation became effective.
• The enacting statute does not clearly and unmistakably express legislative intent that the statute be applied prospectively only. Nor does La. R.S. 42:1141(C)(3)(e) appear to deprive the sovereign of any vested rights.

For all the foregoing reasons, we conclude that the Board erred as a matter of law in concluding that La. R.S. 42:1141(C)(3)(c) was to be applied prospectively only and that the existing provision of La. R.S. 42:1163 providing a two-year time period within which to bring formal charges applies. Accordingly, we conclude that the exception of prescription should have been granted because the charges were not timely filed. Thus, we must conclude that the Board’s decision on the issue of prescription affects substantial rights of Mr. Davies to the extent that we are required under La. R.S. 49:964(G) to reverse the Board’s decision.

DECREE

Pursuant to La. R.S. 49:964(G), we reverse the decision of the Louisiana Ethics Adjudicator Board and maintain Gregory Davies’ exception of prescription. We dismiss this action against Mr. Davies with prejudice. The Louisiana Ethics Adjudicatory Board is cast with the costs of this grant of certiorari in the amount of $331.39.

REVERSED; EXCEPTION OF PRESCRIPTION MAINTAINED; DISMISSED WITH PREJUDICE.

KUHN, J., concurs and joins in the concurrence of PETTIGREW, J.

BEFORE: KUHN, PETTIGREW, JJ. and KLINE, J. pro tempore

PETTIGREW, J.,

concurs with the results and assign reasons.

hi am of the humble opinion that La. R.S. 42:1141(C)(3)(c), effective August 15, 2008, is procedural in nature and more analogous to La.Code Crim. Proc. art. 578.

The Board voted to refer the matter for investigation on May 8, 2008, but did not file formal charges against Mr. Davies until February 18, 2010, almost 17 months after the effective date of La. R.S. 42:1141(C)(3)(c), i.e., August 15, 2008. Whether said statute is applied prospectively or retroactively, based on the facts and circumstances herein, the charges against Mr. Davies must be dismissed because of the Board’s failure to timely file said charges pursuant to La. R.S. 42:1141(C)(3)(c).

OPINION ISSUED ON REHEARING

Before KUHN, PETTIGREW, and KLINE, JJ.

12This Court, ex proprio motu, GRANTS A REHEARING AND RE-ISSUES OUR OPINION for the sole purpose of clarifying the references therein to the Louisiana Ethics Adjudicatory Board and the Louisiana Board of Ethics and to clarify the party responsible for the costs in this matter.

The opinion on rehearing reads as follows:

KLINE, J.

Gregory Davies filed a writ application with this court, which we granted, challenging a decision of the Louisiana Ethics Adjudicatory Board (Adjudicatory Board) that denied Davies’ exception of prescription. Concluding that substantial rights of Mr. Davies have been prejudiced, we reverse the decision of the Adjudicatory Board, maintain the exception, and dismiss the action with prejudice.

PERTINENT FACTS AND PROCEDURAL HISTORY

On February 18, 2010, the Louisiana Board of Ethics (Ethics Board), pursuant to authority provided in The Code of Governmental Ethics, La. R.S. 42:1141(0, voted to file formal charges against Mr. Davies, the former Chief Deputy of Winn Parish Sheriffs Office. The Ethics Board alleged violations of The Code of Governmental Ethics (concerning his use of Sheriffs Office ^personnel and equipment for his personal purposes and to obtain things of economic value to which he was not entitled.) The formal charges were filed at the conclusion of the Ethics Board’s investigation of an unsworn complaint it had received on April 2, 2008, regarding the alleged violations. On March 1, 2010, Mr. Davies was notified of the filing of the charges. By telephone conference call, the parties set dates and deadlines for discovery, set a hearing for all preliminary matters and exceptions for May 28, 2010, and set the public hearing for July 23, 2010.

On May 13, 2010, counsel for Mr. Davies filed an exception of prescription, urging that the Ethics Boards’ filing of formal charges against Mr. Davies was beyond the one-year period provided by a statutory provision enacted in the interim between the Ethics Board’s vote to conduct an investigation and its actual filing of the formal charges. This one-year period arguably shortened an existing two-year period of limitation to one year. Mr. Davies asserted that pursuant to the one-year proviso in the statute, the charges against him were prescribed and he sought their dismissal.

After a hearing on May 28, 2010, during which arguments were presented, the Adjudicatory Board rendered an opinion on July 9, 2010, holding that the statute providing a one-year period for filing charges was not to be applied retroactively. Accordingly, it ruled that the charges filed against Mr. Davies were within the two-year period in. effect when the Ethics Board voted to investigate the matter and, therefore, were timely filed. The exception of prescription was denied, |4and this writ application by Mr. Davies followed. This court granted writ of certiorari to consider the propriety of that decision.

Mr. Davies assigns as error that the Adjudicatory Board erred as a matter of law in failing to sustain his exception of prescription.

DISCUSSION

The primary issue before this court is whether the Adjudicatory Board erred in finding the charges against Mr. Davies are not prescribed. To resolve that issue, this court’s inquiry is twofold: (1) which, of two seemingly related existing statutes is applicable; and (2) if the later enacted statute applies, this court must then determine whether that statute [ (La. R.S. 42:1141(C)(3)(c), limiting to one-year the amount of time within which the Ethics Board can bring charges), enacted after the Ethics Board began an investigation but before the formal charges were brought against Mr. Davies], is subject to retroactive or prospective application.

Standard of Review

Judicial review of the decision of the Adjudicatory Board is conducted in accordance with the Louisiana Administrative Procedure Act (APA). La. R.S. 42:1143. The APA specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. La. R.S. 49:964(F). La. R.S. 49:964(G) governs the scope of the court’s review as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
ls(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. • In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Applicable Law

First, in 1979, the legislature reenacted the Code of Governmental Ethics, in La. R.S. 42:1101, et seq., effective April 1, 1980. La. R.S. 42:1163, entitled “prescription” provided:

No action to enforce any provision of this Chapter shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever period is shorter.

Acts 1979, No. 433, § 1, Effective April 1, 1980. This “two-year” statute remains unchanged and in effect to date.

Subsequently, in 2008, the legislature enacted Act 23 of the First Extraordinary Session of 2008, providing a one-year period within which the Board shall issue charges, effective August 15, 2008, as follows:

If the Board does not issue charges within one year from the date upon which a sworn complaint is received, or, if no sworn complaint was received, within one year from the date the Board voted to consider the matter, the matter shall be dismissed.

The statute was originally labeled as La. R.S. 42:1141(C)(2)(b). But by Act 128 of the Regular Session of 2008, the legislature re-designated it as R.S. 42:1141(C)(3)(c), leaving the statute substantively unchanged. Notably, the | ^previously enacted two-year statute entitled “prescription,” La. R.S. 42:1163, was neither repealed nor modified during the reenactment.

Chronologic Summary of Facts and Events

To simplify and clarify the analysis required to resolve the issue, a chronologic summary of the foregoing facts, which are undisputed, is helpful:

April 1,1980: Effective date of reenactment of two-year prescriptive statute (La. R.S. 42:1163); this statute remained in effect at all times concerning this matter.
April 8, 2008: The Ethics Board received an unsworn complaint regarding alleged potential violations of the Code of Ethics by Mr. Davies.
May 8, 2008: By majority vote of its membership, the Ethics Board voted to refer the matters complained for investigation.
May 19, 2008: Mr. Davies was notified, by certified mail, of the Ethics Board’s vote to conduct a confidential investigation.
August IS, 2008: Effective date of statute La. R.S. 42:1141(C)(3)(c), providing a one-year prescriptive period.
February 18, 2010: After concluding the investigation, and reviewing the confidential investigation report by the staff of the Louisiana Ethics Administration Program, the Ethics Board, by majority vote of members present, voted to file formal charges against Mr. Davies. March 1, 2010: The Ethics Board notified Mr. Davies, by certified mail, of the formal charges pending against him. March 16, 2010: Mr. Davies filed a peremptory exception of prescription, asserting the Ethics Boards’ filing of formal charges against him was prescribed, pursuant to Section 708 of the Rules governing the Ethics Board and La. R.S. 42:1141(C)(3)(c).
May 28, 2010: A public hearing on the exception was held before the Adjudicatory Board, Panel A, comprised of Judges Kopynec, Cooper, and Taylor. The panel concluded that La. R.S. 42:1141(C)(3)(c) should not be applied retroactively. The panel held that the two-year period was applicable, and found the Ethics Board’s filing of formal charges on March 1, 2010, was timely, as it had until April 8, 2010, (two years from the date of discovery on April 8, 2008, of the alleged violation) to file formal charges.

17Applicable Statute

Since both La. R.S. 42:1163, effective in 1980, and La. R.S. 42:1141(C)(3)(c), effective in 2008, both appear to relate to prescription for prosecuting violations of the Code of Governmental Ethics, and provide two different time periods, we must first determine which of the two statutes controls prescription in this matter. To reiterate, if we determine that La. R.S. 42:1141(C)(3)(c) controls, the issue then becomes whether this section applies retroactively or prospectively, since this section became effective on August 15, 2008, between the Ethics Board’s vote to investigate and the filing of formal charges.

If La. R.S. 42:1141(C)(3)(c) is applied prospectively only, then arguably the two year period for commencing an enforcement action under La. R.S. 42:1163 would apply and the charges against Mr. Davies would not be prescribed. If, however, La. R.S. 42:1141 (C)(3)(c) is applied retroactively, the filing of charges against Mr. Davies is prescribed, having occurred more than one year (approximately one year and nine months) after the Ethics Board’s vote to consider the matter.

On careful analysis, we conclude that the one year prescriptive period provided under La. R.S. 42:1141(C)(3)(c) applies to the matter before us. “Where there is a conflict between two statutory provisions, the statute that is more specifically directed to the matter at issue must prevail over the statute that is more general in character.” Johnson v. Shafor, 08-2145, 08-2146, p. 9 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, 940, writ denied, 09-1921 (La.11/20/09), 25 So.3d 812. We conclude, as did the Adjudicatory Board, that the more restrictive limitation specifically directed to the matter at issue is found in La. R.S. 42:1141(C)(3)(c). Further, under general rules of statutory construction, the latest expression of the legislative will is considered controlling and prior enactments in conflict are |sconsidered as tacitly repealed in the absence of an express repealing clause. Pumphrey v. City of New Orleans, 05-979, p. 12 (La.4/4/06), 925 So.2d 1202, 1210. We also agree with the Adjudicatory Board that La. R.S. 42:1141(C)(3)(c) is the latest expression of legislative will and is the controlling statute here.

Retroactive Application

We next determine whether La. R.S. 42:1141(C)(3)(c), limiting to one-year the amount of time within which the Ethics Board can bring charges, is subject to retroactive or prospective application. We again emphasize that this statute was enacted after the Ethics Board began an investigation but before the formal charges were brought against Mr. Davies. We conclude that La. R.S. 42:1141 (C)(3)(c) is to be applied retroactively.

As this court instructed in In re Succession of Young, 98-1073, p. 5 (La. App. 1 Cir. 5/14/99), 732 So.2d 833, 835-36, “[t]he general rule is that a newly created statute of limitations or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights.” Further, “after the promulgation of a law, each person is charged with knowledge of it.” Id. Additionally, while La. R.S. 1:2 provides that no statute is retroactive unless it expressly so states, Louisiana courts have consistently interpreted the general rule of prospective application as follows:

[t]he general rule of prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention.

Lott v. Haley, 370 So.2d 521, 523 (La.1979).

bln these regards, we note that the Ethics Board voted to refer the claims against Mr. Davies for investigation in May 2008, about three months prior to the enactment of the one-year limitation of La. R.S. 42:1141(C)(3)(e). Accordingly, the Ethics Board had about nine months to issue charges and still comply with the one-year limitation.

We acknowledge the Ethics Board’s arguments that the jurisprudential rule of retroactive application of limitations statutes is inapplicable when the legislature has otherwise expressed its intent that the Act be applied prospectively only. The Ethics Board maintains the legislature did express its intent in this case by giving the statute a future effective date, citing Cole v. Celotex Corp., 599 So.2d 1058, 1064 (La.1992), and other cases. We observe, however, that in Cole, the statute construed had more than an effective future date; it had a clause that clearly and unmistakably expressed the legislature’s intent regarding prospective application, as follows:

[t]he provisions of this act shall not apply to claims arising from events that occurred prior to the time this act becomes effective!)]

Cole, 599 So.2d at 1064. Further, construing Cole, the supreme court in St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992), instructed that the legislature’s selection of a delayed effective date evidences some, albeit inconclusive, intent of prospective application. Accordingly, we conclude that the inclusion of a future effective date in the statute at issue fails to establish proof of intent for prospective application.

Additionally, the Ethics Board urges the “well-established jurisprudential rule” that statutes relating to prescription are strictly construed against prescription and in favor of the “obligation” sought to be extinguished. Thus, when faced with two possible constructions, that which favors maintaining an action, as opposed to | mbarring one, then the one favoring survival of an action should be adopted. See Mallett v. McNeal, 05-2289, 05-2322, p. 5 (La.10/17/06), 939 So.2d 1254, 1258.

In response and in this regard, however, we observe that no “obligation” exists to be extinguished. And the Ethics Board cites no vested right, nor are we aware of any, to issue charges against Mr. Davies. To the contrary, the one-year limitation gives Mr. Davies an enforceable expectation that charges will be dismissed if the Ethics Board does not issue them within one year of the filing of a sworn complaint or from the Ethics Board’s vote to consider a matter. Without an impingement on vested rights, a prescriptive statute should be given retroactive application. See Lott, Id.

Synopsis

In synopsis, we conclude the following:

• Whether or not La. R.S. 42:1163 and La. R.S. 42:1141(C)(3)(c) conflict, the one-year limitation provided under La. R.S. 42:1141(C)(3)(c) is applicable here. The one-year limitation is the more specific provision and is the most recent pronouncement of legislative will.
• We conclude that La. R.S. 42:1141(C)(3)(c) is to be given retroactive application. Procedural laws are generally given retroactive effect, even those that shorten existing periods of limitation, provided the change gives a reasonable time to those affected to assert their rights. Here, the Ethics Board had around nine months to issue charges after the one-year limitation became effective.
• The enacting statute does not clearly and unmistakably express legislative intent that the statute be applied prospectively only. Nor does La. R.S. 42:1141(C)(3)(c) appear to deprive the sovereign of any vested rights.

For all the foregoing reasons, we conclude that the Adjudicatory Board erred as a matter of law in concluding that La. R.S. 42:1141 (C)(3)(c) was to be applied prospectively only and that the existing provision of La. R.S. 42:1163 providing a two-year time period within which to bring formal charges applies. Accordingly, we conclude that the exception of prescription should have been granted because the charges were not timely filed. Thus, we must conclude that the Adjudicatory Board’s decision on the issue of prescription affects substantial rights of Mr. [^Davies to the extent that we are required under La. R.S. 49:964(G) to reverse the Adjudicatory Board’s decision.

DECREE

Pursuant to La. R.S. 49:964(G), we reverse the decision of the Louisiana Ethics Adjudicatory Board and maintain Gregory Davies’ exception of prescription. We dismiss this action against Mr. Davies with prejudice. The Louisiana Board of Ethics is cast with the costs of this grant of certiorari in the amount of $831.39.

REVERSED; EXCEPTION OF PRESCRIPTION MAINTAINED; DISMISSED WITH PREJUDICE

      . While this matter is captioned with "Greg-gory” Davies as the writ applicant, the record shows that his name is spelled "Gregory,”

      . Louisiana Revised Statute 42:1141 governs the procedure for the enforcement of the Code of Governmental Ethics When formal charges were tiled against Mr. Davies, Subsection C, entitled "Investigation and hearing” provided, in pertinent part as follows:
      (1)Upon receiving a sworn complaint or voting to consider a matter ... a private investigation shall be conducted to elicit evidence upon which the panel as provided in this Section shall determine whether to recommend to the board that a public hearing be conducted or that a violation has not occurred. The accused ... shall be given written notification of the commencement of the investigation not less than ten clays prior to the date set for the commencement of the investigation....
      (2) After the investigation has been completed, the board shall determine whether a public hearing should be conducted to receive evidence and to determine whether any violation of any provision of law ... has occurred....
      (3)(a) if the board determines following an investigation that a public hearing should be conducted, the board shall issue charges. A public hearing shall be conducted to receive evidence relative to the facts alleged in the charges and to determine whether any violation of any provision of law ... has occurred....

      .Specifically, Mr. Davies was charged with violating Section 111 1A of the Code of Governmental Ethics (La. R.S. 42:1101 et seq.), by receiving a thing of economic value from his governmental entity to which he is not entitled, when he used the Winn Parish Sheriff’s Office personnel and equipment for his private business. Davies Rental Properties; and that he violated Section 1116 of the Code of Ethics by using the authority of his position in a manner intended to compel or coerce persons to provide another person with a thing of economic value, when he instructed a deputy under his supervision to collect rent from one of Mr. Davies’ tenants.

      . The Board voted on May 8, 2008, to conduct the formal investigation, and Mr. Davies received notice of such on May 19, 2008.

      . Jurisdiction to entertain review of any action taken by the Board or adjudicatory panel is vested in the first circuit court of appeal as provided in La. R.S. 42:1142.

      . We specifically decline to conclude here that La. R.S. 42:1163 and La. R.S. 42:1141(C)(3)(c) are in conflict, since this determination is not necessary to our analysis. And Mr. Davies makes a creditable argument that they are not. In this regard, we hold only that to the extent these statutes may be in conflict or may cause ambiguity. La. R.S. 42:1141(C)(3)(c) is controlling as the last expression of legislative will.

      . See also La. C.C. art. 6. which provides. "[I]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”

      .Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

       Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . While this matter is captioned with "Greg-gory” Davies as the writ applicant the record shows that his name is spelled "Gregory.”

      . Louisiana Revised Statute 42:1141 governs the procedure for the enforcement of the Code of Governmental Ethics. When formal charges were filed against Mr. Davies. Subsection C, entitled "Investigation and hearing” provided, in pertinent part as follows:
      (1)Upon receiving a sworn complaint or voting to consider a matter ... a private investigation shall be conducted to elicit evidence upon which the panel as provided in this Section shall determine whether to recommend to the board that a public hearing be conducted or that a violation has not occurred. The accused ... shall be given written notification of the commencement of the investigation not less than ten days prior to the date set for the commencement of the investigation....
      (2) After the investigation has been completed, the board shall determine whether a public hearing should be conducted to receive evidence and to determine whether any violation of any provision of law ... has occurred....
      (3)(a) If the board determines following an investigation that a public hearing should be conducted, the board shall issue charges. A public hearing shall be conducted to receive evidence relative to the facts alleged in the charges and to determine whether any violation of any provision of law ... has occurred....

      .Specifically, Mr. Davies was charged with violating Section 1111A of the Code of Governmental Ethics (La. R.S. 42:1101 et seq.), by receiving a thing of economic value from his governmental entity to which he is not entitled, when he used the Winn Parish Sheriff's Office personnel and equipment for his private business. Davies Rental Properties; and that he violated Section 1116 of the Code of Ethics by using the authority of his position in a manner intended to compel or coerce persons to provide another person with a thing of economic value, when he instructed a deputy under his supervision to collect rent from one of Mr. Davies’ tenants.

      . The Ethics Board voted on May 8, 2008, to conduct the formal investigation, and Mr. Davies received notice of such on May 19, 2008.

      . Jurisdiction to entertain review of any action taken by the Adjudicatory Board or adjudicatory panel is vested in the first circuit court of appeal as provided in La. R.S. 42:1142.

      . We specifically decline to conclude here that La. R.S. 42:1163 and La. R.S. 42:1141(C)(3)(C) are in conflict, since this determination is not necessary to our analysis. And Mr. Davies makes a creditable argument that they are not. In this regard, we hold only that to the extent these statutes may be in conflict or may cause ambiguity, La. R.S. 42:1141(C)(3)(c) is controlling as the last expression of legislative will.

      . See also La. C.C. art. 6, which provides, "[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.’ ”