author: KUHN, J.

text:
    GREEN TRAILS, LLC v. STEWART TITLE OF LOUISIANA, INC., Stewart Title Guaranty Company, and Baton Rouge Title Company, Inc.
    No. 2012 CA 0133.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Steven W. Usdin, John W. Joyce, New Orleans, LA, for Plaintiff-Appellee Green Trails LLC.
    James M. Garner, Elwood F. Cahill, Jr., John T. Balhoff, II, Ashley G. Coker, New Orleans, LA, for Defendant-Appellant Baton Rouge Title Company, Inc.
    Before KUHN, PETTIGREW, and McDonald, jj.
   KUHN, J.

12Pefendant-appellant, Baton Rouge Title Company, Inc. (BRT) appeals the trial court’s judgment, awarding damages to Green Trails LLC (Green Trails) for an alleged failure of BRT to report a claim asserted under a title insurance policy issued by Stewart Title Guaranty Company (Stewart Title). For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2005, Green Trials acquired parcels SCC-1 and SCC-3 and entered into a lease with option to purchase parcel SCC-2 from Shenandoah Golf Club, LLC (SGC). The three parcels (collectively the SCC property) were formerly a golf course and associated facilities. Following the sale of the property, Green Trails and SGC filed an application with the Planning Commission for the Parish of East Baton Rouge (Planning Commission) seeking approval of a preliminary plat to subdivide the SCC property into 282 lots for use as single family residences. In March 2005, multiple owners of lots located in Shenandoah Estates Subdivision filed a lawsuit to stop the Green Trails development (the Residents’ lawsuit). See Residents of Shenandoah Estates Subdivision v. Green Trails, L.L.C., 2005-1381 (La.App. 1st Cir.6/9/06), 938 So.2d 1027, 1028, writ denied, 2006-2098 (La.12/8/06), 943 So.2d 1095.

On December 18, 2006, Green Trails filed this lawsuit against BRT and Stewart Title, averring that BRT had issued to Green Trails, on January 14, 2005, an owners’ title insurance policy on behalf of Stewart Title for the SCC property. IsGreen Trails alleged BRT and Stewart Title were contractually obligated to defend Green Trails in the Residents’ lawsuit that challenged its title; and, having failed to do so, BRT and Stewart Title were liable for reimbursement of the amounts Green Trails had expended in its defense.

Subsequent to answering the lawsuit, BRT filed a peremptory exception, challenging the timeliness of Green Trails’ petition. The trial court overruled the exception, and BRT’s writs to this court, see 2011-0473 (La.App. 1st Cir.4/28/11) (unpublished writ action), and the Louisiana Supreme Court, see 2011-0919 (La.5/11/11), 62 So.3d 130, were denied.

Prior to trial on the merits, Stewart Title settled with Green Trails for $40,000. After testimonial and documentary evidence was adduced, the trial court rendered judgment, concluding that BRT was liable to Green Trails for its litigation costs for the defense of the Residents’ lawsuit. In so concluding, the trial court reasoned that BRT had breached its duty to immediately report and forward to the Stewart Title a claim Green Trails averred it had reported. On June 29, 2011, the trial court issued a judgment in favor of Green Trails in the total amount of $166,909.38 less a credit of $40,000, the amount Stewart Title had paid in settlement. This appeal by BRT followed.

TIMELINESS OF GREEN TRAILS’ CLAIMS

Urging that the undisputed evidence establishes that Green Trails had notice of its claims more than one year before it filed this lawsuit, BRT contends that under 14La. R.S. 9:5605, Green Trails’ claims are perempted. As such, BRT maintains that the trial court’s conclusion overruling its peremptory exception is erroneous.

According to the provisions of La. R.S. 9:5606:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect....
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods ... and ... may not be renounced, interrupted, or suspended.

Under the provisions of La. R.S. 9:5606 D, both the one-year and three-year periods are preemptive. See Huffman v. Goodman, 34,361 (La.App.2d Cir.4/4/01), 784 So.2d 718, 724-25, unit denied, 2001-1331 (La.6/22/01), 794 So.2d 791. Nothing may interfere with the running of a per-emptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. Biggers v. Allstate Ins. Co., 04-282 (La.App.5th Cir.10/26/04), 886 So.2d 1179, 1181.

If evidence is introduced at the hearing on the peremptory exception, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. See Straub v. Richardson, 2011-1689 (La.App.lst Cir.5/2/12),5 92 So.3d 548, 552. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 881-82 (La.1993).

The peremptive period commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he is the victim of a tort. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of the preemptive period. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, 510-511; C’s Discount Pharmacy, Inc. v. Pacific Insurance Co., 09-217 (La.App.5th Cir. 1/26/10), 31 So.3d 1103, 1107.

A review of the evidence establishes the following facts salient to the timeliness issue. Green Trails is a company specifically set up for the development of approximately 300 acres in the old Shenandoah Golf Course. David Waltem-ath, the managing member and majority owner of Green Trails, testified that in January 2004, when he acquired the SCC property, he obtained | fititle insurance through BRT. When he was sued by the Residents of Shenandoah, he had his attorney contact BRT to see if the title insurance policy issued by Stewart covered his claim. According to Waltemath, the Residents’ litigation challenged Green Trails’ ability to develop the land based on alleged zoning and servitude impediments. When Green Trails did not hear back from BRT after the Green Trails attorney initially contacted BRT, Waltemath spoke to BRT’s president, Mark Schoen, and asked him whether Green Trails would be covered under the Stewart Title policy. Schoen advised Waltemath that the title insurance would not cover the zoning issue and promised to get back with Green Trails about whether there would be coverage for the servitude issue.

A Green Trails attorney, whose representation was focused on Green Trails’ attempts to obtain land use approval from various East Baton Rouge Parish governmental entities (the Green Trails attorney), testified that he spoke with Schoen on the telephone on March 2, 2005. In that phone conversation, the Greens Trails attorney advised Schoen that Green Trails had been sued in the Residents’ litigation and told him that Green Trails expected a defense. That same day, the Green Trails attorney emailed Schoen a copy of the Residents’ lawsuit. The March 2, 2005 email requested from BRT maps described in Exhibit 3 to the Residents’ lawsuit as well as specified surveys that were also mentioned in that same exhibit. An email dated March 3, 2005, sent by Schoen to the Green Trails attorney, stated that BRT had obtained copies of the requested maps from the East Baton Rouge Parish Clerk of Court office, and that they were available to be picked up.

17After he did not hear anything from Schoen about the claim he had submitted to BRT on behalf of Green Trails, the Green Trails attorney sent another email to Schoen on March 24, 2005. The email stated that Green Trails had expected to hear from BRT “relative to the claims made in the litigation.” On March 28, 2005, Schoen emailed a response indicating that “the servitudes on Exhibit 3” were all listed as exceptions in the Stewart Title policy and to let him know if Green Trails had any more questions. The Green Trails attorney testified that he understood Schoen’s email to have advised Green Trails that the servitudes were not covered claims under the Stewart Title policy.

Waltemath testified that around March 28, 2005, he talked to Schoen, who advised that there was no coverage for zoning, and the servitudes were exemptions from the policy. According to Waltemath, he expressly asked Schoen if the Stewart Title policy provided coverage to Green Trails, and Schoen stated that it did not.

Thus, as of March 28, 2005, based on BRT’s representations, Green Trails was convinced that there was no coverage under the Stewart Title policy for the claims in the Residents’ litigation. As a result, Green Trails hired attorneys to represent Green Trails in defense of the Residents’ litigation (the Green Trails defense team).

According to Waltemath, sometime during late August or early September 2005, he learned for the first time that Stewart Title was paying for the defense of SGC in the Residents’ litigation. He could not recall the details or the exact date of a conversation with the SGC representative but remembered having been surprised to learn that SGC’s legal fees had been paid by Stewart Title. |sWaltemath said that he added to his “to do” list an inquiry into why Stewart Title was paying SGC’s legal fees but not Green Trails’.

The record also contained a copy of the Residents’ litigation, which shows that the same allegations asserted against Green Trails were also levied against SGC, from whom Green Trails had acquired the property. Thus, it is undisputed that the parties were co-aligned in their defenses to the Residents’ litigation.

Additionally, the record contains an email, dated September 20, 2005, from the Green Trails attorney to Waltemath, which forwarded the March 24, 2005 email to Schoen as well as Schoen’s March 28, 2005 responsive email that indicated the servi-tudes were listed as exceptions to the Stewart Title policy. The Green Trails attorney stated “I think that we should see if we are going to need [BRT’s] assistance ... before raising the issue of the title company paying your defense of the [Residents’ litigation], which should only delay us a few days. But if you want to go ahead and raise it now, I am happy to do so.” Waltemath’s responsive email, dated September 22, 2005, replies, “I agree we should sit tight for a few days.”

Lastly, an email from the Green Trails attorney to the attorney representing SGC dated November 1, 2005, was admitted into evidence. The Green Trails attorney asked that the SGC attorney to contact him regarding the basis for Stewart ^Title’s assumption of a defense on behalf of SGC. The responsive email, which does not contain a date, states that Stewart Title agreed to defend SGC without “any real explanation.”

Although Green Trails maintained that it had requested a defense through verbal and email communications with BRT, both Perry and Waltemath acknowledged that a written notice of claim was not sent to Stewart Title in accordance with the policy provisions until December 16, 2005. According to Waltemath, the first time he learned that BRT had not reported Green Trails’ claim to Stewart Title was on September 8, 2006, when Green Trials received a letter from Stewart Title advising that Schoen denied having received a notice of claim in March 2005.

In overruling the exception of peremption prior to the trial on the merits, the trial court gave no express reasons for its conclusion that Green Trails had timely filed its petition. Without making credibility determinations contrary to those implicit in the trial court’s conclusion that Green Trails timely filed its claims against BRT, we point out that Waltemath’s un-controverted trial testimony and the documentary evidence establish that Green Trails had constructive notice of its claims against BRT as of late August or early September 2005, when Waltemath learned that Stewart Title was providing a defense to its co-defendant, SGC, in the Residents’ litigation. While the testimonial evidence does not establish a precise date that Wal-temath first learned that his co-aligned co-defendant was provided a defense by Stewart Title, the September 20, 2005 email from the Green Trails |inattorney and Waltemath’s responsive email establishes that as of September 22, 2005, Green Trails knew that Stewart Title’s obligation to pay its defense in the Residents’ litigation was a viable concern. Waltemath even included that concern on his “to do” list. Once Green Trails knew that Stewart Title was providing SGC a defense, Green Trails had sufficient information to excite its attention, put it on guard, and to require it to call for an inquiry as to why Green Trails’ request for a defense in March 2005 had gone unheeded. As such, Green Trails was on notice of everything to which a reasonable inquiry may have led including that BRT had failed to report Green Trails’ claim to Stewart Title.

Moreover, the email from the Green Trails attorney to SGC’s attorney, inquiring of the basis of Stewart Title’s assumption of a defense on behalf of SGC, additionally demonstrates sufficient knowledge as of November 1, 2005, to excite Green Trails’ attention, put it on guard, and to require it to call for an inquiry about its entitlement to a defense under the title insurance policy. Thus, the undisputed evidence establishes that on November 1, 2005, Green Trails was once again on notice of everything to which a reasonable inquiry might have led including that BRT had failed to report its demand for a defense to Stewart Title.

Importantly, we note that the record is devoid of any evidence showing that between late August or early September 2005 and December 16, 2005, when a written notice of claim was sent to Stewart Title on its behalf, that Green Trails contacted either BRT or Stewart Title to ascertain why it had been treated differently from its Residents’ litigation co-defendant, SGC.

Although the record clearly supports the trial court’s implicit finding that September 8, 2006 was the date that Green Trails had actual knowledge of the |nfailure of BRT to report the claim to Stewart Title, Green Trails had constructive knowledge of its claim against BRT as early as late August 2005, and clearly no later than November 1, 2005. A reasonable inquiry would have led Green Trails to discover that BRT had failed to report the claim for a defense to Stewart Title. Thus, the un-controverted testimonial and documentary evidence establishes that Green Trails should have filed its lawsuit against BRT no later than one year from November 1, 2005, the date that Green Trails should have discovered BRT’s alleged omission in failing to report the claim to Stewart Title. Accordingly, Green Trails’ claim, filed on December 18, 2006, was extinguished by peremption under La. R.S. 9:5605. The trial court’s conclusion to the contrary is clearly wrong and, therefore, reversed.

DECREE

For these reasons, Green Trails’ claims were perempted prior to the date it filed its petition. Thus, the trial court’s judgment, awarding reimbursement in the amount of $166,909.38, less a credit of $40,000, is reversed. Appeal costs are assessed against plaintiff-appellant, Green Trails LLC.

REVERSED.

      . The Residents' petition sought injunctive, declaratory, and monetary relief as well as issuance of a writ of mandamus directed to the Planning Commission forbidding it to act on the application for a preliminary plat.

      . The judgment dismissing Stewart Title from litigation was signed on July 5, 2011, subsequent to the May 12, 2011 trial date. Based on representations to the court, a lack of defense by Stewart Title, and testimonial evidence that the settlement amount was $40,000, it is undisputed that this co-defendant was dismissed from the lawsuit prior to the trial on the merits.

        .See La. R.S. 22:523.

      . When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to it, in addition to the review of the final judgment. See Landry v. Leonard J. Chabert Med. Ctr., 2002-1559 (La.App.1st Cir.5/14/03), 858 So.2d 454, 461 n. 4, writs denied, 2003-1748, 2003-1752 (La.10/17/03), 855 So.2d 761.

      . See La. C.C. arts. 3458 and 3461.

      . Indeed, the uncontroverted testimony of an attorney from the Green Trails defense team established that SGC's attorneys took a less aggressive role throughout litigation, including the appellate process, choosing to follow the lead of the Green Trails attorneys’ defense team, even permitting the team to sign all but one pleading on behalf of SGC.

      . Testimony established that Green Trails attempted to sell the tennis facilities located on the SCC property to a third party and that in conjunction with that sale, Green Trails anticipated using BRT to place the title insurance for the transaction. Ultimately, BRT was not used for the transaction.

      . At the trial on the merits, the trial court refused to permit testimony on the issue of the timeliness of Green Trails’ claim. With the limited exception of some of the testimonial evidence, most of the evidence, including all of the documentary evidence, was admitted into the record at both the hearing on the exception of peremption and the trial on the merits.

      . The burden of proof for an exception of peremption is on the exceptor since on the face of its petition, Green Trails averred that it had actual knowledge of BRT’s alleged omission on September 8, 2006, which was well within one year of its December 18, 2006 filing date. See Straub v. Richardson, 2011-1689 (La.App.1st Cir.5/2/12), 92 So.3d 548, 552. In light of the uncontroverted testimony of Waltemath and the email documentary evidence, we conclude BRT bore its burden of proof and that the trial court erroneously concluded to the contrary.

      . Because we have concluded that Green Trails failed to timely report a claim, we pre-termit a discussion on the issue of whether the testimonial and documentary evidence was sufficient to support the trial court’s implicit finding that Green Trails requested a defense.

      . Because we have concluded that Green Trails’ petition was untimely, we pretermit a discussion of BRT’s challenges to the trial court’s imposition of liability and the quantum of reimbursement awarded.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    Edward BLAKE v. TURNER INDUSTRIES GROUP, LLC.
    No. 2012 CA 0140.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Brad 0. Price, Baton Rouge, LA, for Plaintiff/First Appellant, Edward Blake.
    Charles J. Duhe, Jr., Ryan J. Zumo, Baton Rouge, LA, for Defendant/Second Appellant, Turner Industries Group, LLC.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   WHIPPLE, J.

Lin this workers’ compensation suit, claimant, Edward Blake, and his employer, Turner Industries Group, LLC (“Turner”), appeal from a judgment of the OWC. For the following reasons, the judgment of the OWC is affirmed.

FACTS AND PROCEDURAL HISTORY

Edward Blake, who was employed by Turner as a taeker/pipe fitter from June 26, 2007 to April 24, 2009, filed a disputed claim for compensation on January 21, 2010 against Turner. Therein, Blake contended that he was exposed to harmful gases on the job, which resulted in a subsequent lung condition. Blake contended that he became ill in October/November of 2008 when his work environment changed on September 1, 2008, after Hurricane Gustav damaged the Main Shop where he normally worked. According to Blake, he and other workers from the Main Shop were then moved to the Alloy Shop, where he was exposed to toxic fumes from alloy metals, causing him to become ill. Turner denied Blake’s claim that his lung condition was caused by or otherwise aggravated by his work for Turner.

The matter proceeded to trial before the OWC on May 17 and 18, 2011, after which the parties were permitted to file post-trial briefs. On August 19, 2011, the OWC issued an oral ruling from the bench, and on September 19, 2011, the OWC signed a judgment in accordance with its oral ruling accompanied by written reasons.

In rendering its judgment, the OWC concluded that Blake had a lung condition, idiopathic pulmonary fibrosis (“IPF”), which the OWC found was not caused by his employment with Turner. Instead, the OWC found that Blake’s lung condition was temporarily aggravated by his employment as a tacker/pipe fitter with Turner, but his lung condition had returned to its pre-employment clinical state on May 26, 2009. Accordingly, because the temporary aggravation |sof Blake’s lung condition caused Blake to be temporarily totally disabled from January 20, 2009 until May 26, 2009, the OWC awarded Blake temporary total disability benefits (“TTD”) from Turner from January 20, 2009 until May 26, 2009 in the amount of $480.54 per week based upon an average weekly wage of $720.28. The OWC further awarded Blake interest in the amount of 4% on past due TTD benefits from January 20, 2009 until May 26, 2009; awarded Blake reimbursement for related out of pocket medical expenses and treatment from December 17, 2008 until May 26, 2009; and awarded Blake costs incurred in bringing his claim to trial.

Blake filed the instant devolutive appeal, contending that the OWC: (1) manifestly erred in finding that he had returned to his pre-employment clinical state on May 26, 2009.; and (2) legally erred in failing to apply the standard set forth in Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689 in finding that the aggravation of his underlying lung condition had ended on May 26, 2009, and that no further indemnity or medical benefits were due.

Turner filed a suspensive appeal from the judgment, contending that the OWC erred: (1) in failing to admit medical records from Earl K. Long Medical Center where Blake was treated two weeks before the discovery deadline; (2) in failing to conclude that Blake suffered from an undifferentiated connective tissue disorder; and (3) in continuing to rely on the IME physician’s opinion after additional evidence was discovered that disproves the temporal relationship alleged.

DISCUSSION

Turner’s First Assignment of Error

Although Turner is the second appellant herein, we note that in its first assignment of error, Turner is contending that the OWC judge made an erroneous evidentia-ry ruling in failing to admit Blake’s medical records from |4Earl K. Long Medical Center into evidence. If a trial court commits an evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. Penton v. City of Hammond Police Department, 2007-2352 (La.App. 1st Cir.5/2/08), 991 So.2d 91, 95. As such, we address the evidentiary challenge raised by Turner out of turn.

In its first assignment of error, Turner argues that the OWC erred in not admitting Blake’s medical records from Earl K. Long Medical Center at trial (despite Turner’s concession that it failed to meet the discovery deadline imposed by the OWC in obtaining these records).

In its brief on appeal, Turner contends that Blake presented at Earl K. Long Medical Center for treatment on April 2, 2011. Turner contends that upon learning of this treatment, it sent a notice requesting Blake’s updated medical records to Earl K. Long Medical Center on April 7, 2011. The OWC’s discovery deadline in this matter was April 18, 2011. Nonetheless, on April 19, 2011, Turner issued subpoenas to Dr. Glenn Gomes and Earl K. Long Medical Center seeking the medical records. Blake responded by filing a motion to quash, which the OWC granted, noting that the discovery deadline had lapsed. At trial, the OWC did not allow Turner to introduce the records, but instead allowed Turner to proffer the medical records.

In general, an OWC hearing officer shall not be bound by technical rules of evidence or procedure. LSA-R.S. 23:1317(A). Moreover, LSA-R.S. 23:1310.1(C) authorizes the director of the OWC to adopt reasonable rules and regulations, including the rules of procedure before the hearing officers, according |Bto the procedures established by the Administrative Procedure Act, codified as LSA-R.S. 49:950, et seq. To insure an orderly disposition of cases, it is clear that the hearing officer has much discretion regarding the implementation and enforcement of pretrial procedural rules. Kennedy v. Johnny F. Smith Trucking, 94-0618 (La.App. 1st Cir.3/3/95), 652 So.2d 526, 529. Absent an abuse of this discretion, the decision of the trier of fact will be upheld. Shaffer v. Brand Scaffold Builders, Inc., 2003-0288 (La.App. 1st Cir.12/31/03), 868 So.2d 149, 151, writ denied, 2004-0303 (La.3/26/04), 871 So.2d 355.

Turner undisputedly failed to comply with the discovery deadline imposed by the OWC. Further, Blake contends that at no time did Turner request or seek a waiver of the seven-day waiting period in order to meet the discovery deadline. In any event, the record before us reveals that at the time the matter was scheduled for trial to commence on May 17, 2011, Turner had previously filed a motion to continue an earlier fixing of the trial of this matter. Considering the OWC judge’s responsibility to insure the orderly disposition of cases and the broad discretion afforded it in enforcing pretrial procedure rules, we find no abuse of discretion in refusing to allow the introduction of these records, which were obtained by Turner approximately one week prior to trial, and undisputedly after the experts, treating physicians, and the IME physician in this case had already been deposed without the benefit of being able to review same.

This assignment of error lacks merit.

| fiStandard of Review

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Construction, 2003-1051 (La.7/6/04), 879 So.2d 112, 117. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Company, 2002-1869 (La.App. 1st Cir.6/27/03), 865 So.2d 98, 105, writ denied, 2003-2581 (La.11/26/03), 860 So.2d 1139. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Connor v. Family Dollar Store, 2009-1537 (La.App. 1st Cir.3/26/10), 36 So.3d 339, 345, writ denied, 2010-0959 (La.6/25/10), 38 So.3d 344.

During the trial of this matter, the OWC considered the deposition testimony and testimony of Blake, his co-workers and supervisors at Turner, as well as the following experts and physicians: Dr. William J. Nassetta, Turner’s expert in toxicology, internal medicine, and occupational environmental medicine [Proffered testimony]; Dr. Christopher B. Thomas, Turner’s expert in the field of pulmonary medicine, critical care and internal medicine; Dr. Judd E. Shellito, an expert in the field of pulmonary and critical care medicine and the Chief of Section of pulmonary and critical care medicine at the LSU Health Sciences Center, who conducted an independent medical exam of Blake; Herman J. Gibb, |7Ph.P., M.P.H., an epidemiologist and expert in health risks assessments who evaluated Blake’s information and related that to what he knows about welders; and Dr. Glenn M. Gomes, Blake’s treating pulmonologist, who was board certified in pulmonary medicine, critical care medicine, and internal medicine.

After considering all of the testimony and evidence introduced over the course of a two-day trial, the OWC issued written reasons for judgment, wherein it found as follows:

The issue before the Court is whether or not Mr. Blake contracted an occupational disease in the course and scope of his employment with Turner Industries. The Court finds he did not; he has failed to meet his burden of proof; [ie.,] that more probably than not, he contracted his lung condition in the course and scope of his employment with Turner. I base this on the evidence as a whole, but Dr. Shellito’s deposition was a predominate [sic] factor. Dr. Shellito is the state’s IME and my interpretation of his report and deposition is Mr. Blake has an idiopathic pulmonary fibrosis (IPF); this means the physicians are not sure what caused his lung condition. It is an interstitial lung disease, but Dr. Shellito was of the opinion it was not caused by his welding and pipefitting duties while employed by Turner.
There were a lot of factors utilized in concluding the actual diagnosis, which is at the heart of this issue; the lung biopsy itself, per Dr. Shellito, did not support the condition being caused by welding fumes. Also the- fact his lung disease is a restrictive, not an obstructive, disease also negates causation by welding fumes. Dr. Shellito provided the Court with an excellent overview of the case; he had the benefit of all of the physicians’ records and testing as well has having examined Mr. Blake himself.
Dr. Nasetta, Turner’s expert, diagnosed Mr. Blake with an undifferentiated connective tissue disease [UCTD], I am of the opinion the factors as stated by the experts, do not fit this diagnosis. As I reviewed the factors for [UCTD], the presence of an arthritic condition in this case falls short; [ie.,] Mr. Blake’s arthritic condition is trauma related, not systemic. The dry mouth factor is negated by Mr. Blake’s necessary use of an oxygen tank; there are other factors as well which fell short. However, Dr. Nasetta also stated he thought it could be an idiopathic pulmonary fibrosis as found by Dr. Shellito.
Some of the other experts made assumptions concerning his exposure, which the Court found not to be fact-based. The evidence at trial satisfied the Court Mr. Blake’s exposure was well within the OSHA safety requirements and NOT in an enclosed environment, nor was he exposed to the exotic metals as often as he remembered.
|sThe Court finds Mr. Blake’s IPF was aggravated by his occupation as a welder while employed at Turner. Dr. Shellito stated Mr. Blake’s chronic IPF, being associated with restricted physiology, was more likely than not aggravated by his exposure to welding fumes. Every witness, including the safety manager and the other welders, all testified post-Gustav, in the month of September, the alloy bay and power bay were full to capacity and going at full speed. The testimony is consistent that because of Gustav, the main shop had been destroyed, requiring all employees to be reallocated physically to the alloy bay, the power bay and the north yard. The alloy bay and the power bay were the two places Mr. Blake worked. Every possible space was filled to capacity and working at full speed to complete a large order backlogged by Gustav. Both of these bays were about half the size of the main shop. The Court finds that although there was adequate ventilation, the MSDS[] sheets clearly warn of the same type of symptoms Mr. Blake sustained; nose and throat irritation, shortness of breath, coughing, chest pain and that impaired respiratory function, which Mr. Blake already had, may be worsened. This occurred shortly before his condition became symptomatic; thereby aggravating his pre-existing condition.
The Court finds Mr. Blake’s IPF returned back to its normally progressive state by May of 2009. The aggravation caused by the fumes, once he was removed from the irritant, away from welding, acquired medications, resolved. In May, his treating physician, Dr. Vath,[] released him to return to work. Mr. Blake could never return to welding because of his [underlying] IPF, but he’d returned to his pre-aggravation state. Dr. [Crosby], on May 26, said Mr. Blake was clinically almost back to normal, he felt good, and wanted to return to work.
The Court finds Mr. Blake is entitled to indemnity benefits from January 20, 2009 to May 26, 2009; the period of his disability related to the aggravation of his IPF. The Court awards medical benefits from his first symptoms, December, 2008 to May 26, 2009. • The Court also awards all costs of litigation to the claimant. Interest is awarded at the rate of 4%.

Turner’s Second Assignment of Error

In its second assignment of error, Turner contends that the trial court manifestly erred in finding that Blake’s lung condition was not the result of an undifferentiated connective tissue disease.

| ⅞At trial, Turner presented the testimony of Dr. Christopher Thomas, Turner’s expert who, after evaluating Blake on one occasion and reviewing his medical records, testified that Blake had an undifferentiated connective tissue disease (“UCTD”). Dr. William J. Nassetta, an occupational environmental medicine physician hired by Turner to assess whether or not Blake’s medical condition was caused or aggravated by his employment with Turner, agreed that Blake had an undifferentiated connective tissue disease. However, Dr. Nassetta had never seen or evaluated Blake. He recognized the diffuse alveolar damage (“DAD”) in Blake’s pathology, which could be associated with the inhalation of welding fumes.

Blake presented the medical records and testimony of his treating pulmo-nologists, Dr. Robert L. Crosby and Dr. Glenn M. Gomes, who both opined, after treating Blake for some time, that Blake had bronchiolitis obliterans organizing pneumonia (“BOOP”) and DAD. Dr. Gomes testified that Blake did not have an underlying connective tissue disease. Further, Dr. Gomes opined that when an underlying connective tissue disease is present, a physical examination is rarely completely normal like in Blake’s case.

An independent medical examination, ordered by the OWC, was conducted by Dr. Judd E. Shellito, who had the benefit of examining Blake and taking a history from him as well as reviewing all of his medical records. Dr. Shellito also had a chest x-ray obtained and a pulmonary function test performed on Mr. Blake in connection with his examination. Dr. Shellito opined that Blake clearly has BOOP, and BOOP has many causes, but when BOOP is idiopathic, a cause cannot be identified. In his opinion, Blake has a pulmonary interstitial lung disease, which is a disorder that affects the interstitium of the lung. Dr. Shellito further explained that interstitial diseases are typically associated with fibrosis or scarring of the lungs. They are also often associated with restrictive defects on |inthe pulmonary functioning test as seen with Blake. Blake’s lung biopsy showed a pattern of organized diffuse alveolar damage with a minor component of prolifera-tive bronchiolitis as indicated by Drs. Crosby and Gomes.

In relying on Dr. Shellito’s opinion that Blake suffered from IPF, the OWC noted:

Dr. Shellito provided the Court with an excellent overview of the case; he had the benefit of all of the physicians’ records and testing as well has having examined Mr. Blake himself.

Turner argues that the OWC erred in accepting the testimony of the IME, Dr. Shellito, and Blake’s treating physician, Dr. Gomes, and in disregarding or rejecting the opinions of Drs. Thomas and Nas-setta. The OWC was presented with conflicting testimony as to Blake’s medical condition. On review of the record herein, including the extensive medical evidence and testimony presented in this matter, we find the OWC’s determination was reasonable and is amply supported by the record. Accordingly, the OWC’s reasonable evaluations of credibility and inference of fact will not be disturbed on review. See Connor v. Family Dollar Store, 36 So.3d at 345.

We find no merit to this assignment.

Blake’s First and Second Assignments of Error/Turner’s Third Assignment of Error

In these assignments of error, Turner contends that the OWC manifestly erred in finding that Blake’s pre-existing lung condition was aggravated by his occupation as a welder with Turner Industries, while Blake contends that the OWC committed manifest error by finding that the aggravation of Blake’s IPF condition had ceased and had returned to its pre-employment clinical state on May 26, 2009. Blake further argues that the OWC committed legal error in failing to apply the standard set out in Peveto v. WHC Contractors, 93-1402 (LaF/14/94),11 630 So.2d 689. After careful review, we find no merit to either party’s assertions.

In determining whether an accident caused the aggravation of a claimant’s condition in workers’ compensation matters, the Louisiana Supreme Court instructed in Peveto, that an employee has the burden of establishing a causal link between the accident and the subsequent disabling condition. Peveto v. WHC Contractors, 630 So.2d at 691. Where an employee suffers from a pre-existing medical condition, he may still prevail if he proves that the accident “aggravated, accelerated, or combined with the disease or infirmity to produce death or disability for which compensation is claimed.” Peveto v. WHC Contractors, 630 So.2d at 691, citing Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320, 324 (La.1985). Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate, or combine with the pre-existing disease or infirmity to produce the employee’s disability. Walton v. Normandy Village Homes Association, Inc., 475 So.2d at 325. Moreover, in making such determinations, medical testimony, albeit significant, is not necessarily conclusive as to the issue of causation, which remains an ultimate fact to be decided by the court after weighing all of the evidence. Peveto v. WHC Contractors, 630 So.2d at 691, citing Haughton v. Fireman’s Fund American Insurance Company, 355 So.2d 927, 929 (La.1978).

In determining that Blake’s IPF was aggravated by his exposure to welding fumes, the OWC relied on Dr. Shellito’s testimony that it was more likely than not that Blake’s exposure to the welding fumes aggravated his underlying lung condition because in this particular case, even though the welding fumes did not cause his disease, there was a temporal relationship between the exposure and his | ^symptoms. Dr. Shellito added that it is well-recognized that exposure to welding fumes aggravates underlying lung disorders.

Moreover, the OWC clearly relied on the substantial evidence presented by Blake to establish that the welding fumes he was exposed to at Turner were harmful, which included the testimony of Turner’s Safety Manager, Blake, Dr. Herman Gibb, and the other welders at Turner, all of whom testified about the working conditions post-Gustav, when the shops were consolidated, as well as MSDS sheets, which warned of the same symptoms that Blake exhibited. In addition to the testimony by Dr. Shellito noted above, Dr. Gomes also testified that if Blake did have a connective tissue disease as argued by Turner, exposure to fumes would make his condition “a lot worse.” Accordingly, on review, we find no manifest error in the OWC’s ultimate determination that Blake’s exposure to the welding fumes aggravated his underlying lung condition.

With reference to the OWC’s determinations as to whether and when Blake’s condition had returned to its pre-aggravation state, the OWC relied on the testimony of Blake’s treating pulmonologist, Dr. Robert L. Crosby, noting as follows:

The Court finds Mr. Blake’s IPF returned back to its normally progressive state by May of 2009. The aggravation caused by the fumes, once he was removed from the irritant, away from welding, acquired medications, resolved. In May, his treating physician, Dr. Vath,[] released him to return to work. Mr. Blake could never return to welding because of his [underlying] IPF, but he’d returned to his pre-aggravation state. Dr. [Crosby], on May 26, said Mr. Blake was clinically almost back to normal, he felt good, and wanted to return to work.

Dr. Crosby’s records reflect that he treated Blake from January 2009 to August 2009, and had diagnosed Blake with bronchiolitis obliterans organizing pneumonia (“BOOP”) and diffuse alveolar damage (“DAD”). On May 26, 2009, |isafter evaluating Blake’s condition on that visit, Dr. Crosby noted that Blake “[f]eels good” and “wants to go back to work.” He further noted, “[i]nstead of pipefitting/welding he wants to drive trucks,” and that he is “clinically almost back to normal.” Accordingly, Dr. Crosby then released Blake to return to work with the restriction that he not work around dust, fumes, or chemicals.

Dr. Gomes, who became Blake’s treating pulmonologist in January of 2010 after Dr. Crosby closed his practice, agreed with Dr. Crosby’s diagnosis of BOOP and DAD. Dr. Gomes also agreed that Blake was able to return to work with the restriction that he be in a controlled temperature environment with no dust or fumes. Dr. Gomes also concluded that he would not be able to perform moderate manual labor.

In support of his assignment of error challenging the merits of the OWC’s ruling, Blake notes that Dr. Shellito, the IME physician, testified that although Blake may have felt better, the “global pattern” with his underlying condition was one of worsening lung function. However, with regard to Blake’s ability to work, Dr. Shel-lito conceded on cross examination that Blake had not informed him that he had, in fact, returned to work since January of 2009.

Blake also points to the testimony of Dr. Christopher Thomas, Turner’s expert who, after evaluating Blake on one occasion and reviewing his medical records, testified that he did not think Blake had BOOP, but instead had an underlying connective tissue disease. With reference to Blake’s argument that the OWC erred in finding that he had returned to his pre-employment clinical state, Blake contends that Dr. Thomas “noted he thought there was some improvement, but then Mr. Blake began to decline.” On careful review of Dr. Thomas’ deposition testimony, however, we note that in the testimony relied upon by Blake, Dr. Thomas qualified his response, as follows:

[Counsel]:
|14So have you seen the positive reaction that you would expect in Mr. Blake’s condition with use of the steroids?
Dr. Thomas:
I personally don’t know if I can ascribe a significant clinical status based on the evidence that I have. I do know he demonstrated improvement from the time of the initial diagnosis and then subsequently had some form of decline. There is a period of time that’s unaccounted for within the clinical evaluation by the physicians. I would be unable to state at that exact time, because I didn’t see him, and he was unable to provide that interval with me to clarify.

Turner notes on appeal that Blake passed DOT physicals taken on July 6, 2009, and on October 16, 2009, after his lung biopsy, which both provided that Blake had a normal lung and chest examination. Further, in addition to Dr. Crosby’s findings, Dr. Ceruti’s records of May 5, 2009, state that “Blake was doing ok off steroid.” Further, as noted by Turner, following Blake’s release to return to work by Dr. Crosby in May of 2009, Blake did not seek further treatment for his injuries until approximately eight months later on January 28, 2010.

Considering all of the above and after review of the record in its entirety, we recognize that there are some conflicts in expert and medical testimony. Nonetheless, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed upon review in the absence of manifest error, even though an appellate court may feel that its own evaluations and inferences are as reasonable. See Robinson v. North American Salt Company, 865 So.2d at 105. On the record before us, we find no manifest error in the OWC’s finding that the aggravation of Blake’s IPF had returned to his pre-employment clinical state on May 26, 2009.

Moreover, to the extent that Blake contends that Peveto requires the employer to show that a claimant’s aggravation ended, and thus, that the OWC herein erred in finding that the aggravation of Blake’s underlying condition |,¿ended, absent a showing from Turner that the aggravation ended, we likewise find no merit.

At the outset, we note that Peveto is factually distinguishable from the instant case. In Peveto, the claimant suffered from a neurological disorder, which claimant’s treating physician testified “might not be progressive at all.” Peveto v. WHC Contractors, 630 So.2d at 692. The court was therefore able to determine that absent the aggravation from his employment-related accident, his condition may not have progressed at all. Hence, the court found that the evidence presented by claimant created a presumption of causation, which was not rebutted or contradicted by any evidence from the employer. Peveto v. WHC Contractors, 630 So.2d at 692.

Unlike the facts in Peveto, the evidence in the instant case established that Blake’s underlying IPF was a progressive condition. Also, in this case, Turner argued and presented contradicting rebuttal evidence and testimony to show that Blake’s condition was not aggravated by employment conditions at Turner, whereas the employer in Peveto failed to do so. In Peveto, the evidence clearly showed that the aggravation of claimant’s condition did not return to its pre-aggravation state, whereas there was evidence in the instant case which, if accepted as true by the trial court, would show that the aggravation of Blake’s underlying condition had returned to its pre-aggravation state.

As discussed above, however, after weighing and considering the conflicting evidence herein, the OWC determined that Blake presented sufficient evidence to establish that it was more probable than not that his underlying IPF was aggravated by his exposure to welding and metal fumes at Turner. Further, we concluded above that the OWC correctly determined that the aggravation of Blake’s underlying condition had ceased in that Blake’s condition returned to its pre-aggravation state based on its consideration and resolution presented of the | ^conflicting testimony and evidence presented herein by Blake and Turner. We again note we find no error in these determinations. Finally, we find no merit to Blake’s argument that the OWC committed legal error under Peveto in finding that the aggravation of Blake’s underlying condition ended or returned to its pre-aggravation state.

These assignments of error by Turner and Blake lack merit.

CONCLUSION

For the above and foregoing reasons, the September 19, 2011 judgment of the OWC is affirmed. Costs of this appeal are assessed equally against the appellants,' Edward Blake and Turner Industries Group, LLC.

AFFIRMED.

McClendon, j., concurs.

      . Likewise, for ease of discussion, we hereafter address Turner’s other assignments of error out of turn.

      . The only expert who had the benefit of reviewing these records prior to trial, which commenced on May 17, 2011, (but after his report of April 11, 2011) was Dr. William J. Nassetta, Turner's occupational environmental medicine physician. Although Turner contends that the updated medical records it seeks to introduce are relevant evidence of Blake’s medical treatment and condition, in Dr. Nassetta's proffered testimony concerning these records, he stated that his review of Blake’s medical records from Earl K. Long did not change his opinion concerning Blake’s condition. Thus, we find no error.

      . "MSDS” are material safety data sheets.

      . Both Turner and Blake concede that the OWC misspoke as Blake was never seen by a "Dr. Vath.” Instead, as the parties note, the May 26, 2009 visit with Blake's treating physician referred to by the OWC in her reasons for judgment was with Blake’s treating pul-monologist, Dr. Robert L. Crosby. Notably, Dr. Crosby closed his practice on or about August of 2009, and was unable to be located for a deposition.

      . As set forth in footnote 2, both Turner and Blake concede that the OWC misspoke, as Blake was never seen by a "Dr. Vath,” and that the treating physician referred to by the OWC in her reasons for judgment was with Dr. Crosby, Blake’s treating pulmonologist at the time.


author: HIGGINBOTHAM, J.

text:
    Darrel W. AUCOIN v. CNA and Kansas City Southern Railroad.
    No. 2012 CA 0144.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.

      Robin L. Krumholt, Baton Rouge, LA, for Plaintiff-Appellant, Darrel W. Aucoin.
    Kirk L. Landry, Virginia J. McLin, Baton Rouge, LA, for Defendant-Appellee, Kansas City Southern Railroad.
    Before WHIPPLE, McCLENDON, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

bln this workers’ compensation case, the claimant appeals a summary judgment dismissing his claim for permanent and total disability benefits. For the following reasons, we affirm.

BACKGROUND

The claimant, Darrel W. Aucoin, was employed by Kansas City Southern Railroad (KCS) as a truck master twenty years ago, when he sustained a work-related back injury on February 5, 1992. KCS’s workers’ compensation carrier, CNA Insurance Companies, terminated Mr. Aucoin’s supplemental earnings benefits, which had expired. Mr. Aucoin filed a disputed claim for compensation, urging that he is entitled to permanent total disability (PTD) benefits. He also sought penalties and attorney fees. KCS and CNA answered Mr. Aucoin’s claim, denying that Mr. Aucoin is permanently and totally disabled.

KCS moved for summary judgment, maintaining that Mr. Aucoin was not entitled to PTD benefits because he could not meet the statutory requirement that prohibits compensation if the employee is engaged in any kind of employment. KCS argued that it is undisputed that Mr. Au-coin is engaged in three different activities that generate income: (1) he receives $25 to $50 per month for services provided to his neighbor, Eugene Bologna, by watching over the neighbor’s property; (2) he receives $75 per election from the East Feliciana Parish Clerk of |sCourt for receiving and safeguarding voting machines in his voting precinct before and after each election; and (3) he receives profits from the sale of cattle that he helps care for in his family’s cattle-breeding business. In support of its motion, KCS filed excerpts from Mr. Aucoin’s deposition testimony where he allegedly admits being involved in the three money-making activities.

Mr. Aucoin opposed KCS’s motion for summary judgment, relying on the deposition testimony of his treating physician, Dr. Martin A. Langston, stating that Mr. Aucoin’s condition was commonly known as “failed back syndrome” and that Mr. Aucoin was permanently and totally disabled as of June 17, 2005. Additionally, Mr. Aucoin submitted an affidavit from his wife, Laura Aucoin, and his own affidavit, stating that his wife owned the cattle business, his sons helped operate the cattle business, and that he only fed the cattle two-to-three times per month. The Au-coins’ statements in their affidavits also indicated that the monthly payments from their neighbor constituted a “gift” rather than wages and that no labor was involved with the “keeper of the keys position” for the elections in their voting precinct. Mr. Aucoin also submitted his neighbor’s affidavit, declaring that Mr. Aucoin was not his neighbor’s employee.

The workers’ compensation judge (WCJ) considered the pleadings and evidence submitted before concluding that there was no genuine issue of material fact, and that as a matter of law Mr. Aucoin could not meet the burden of proof required for PTD benefits. The WCJ therefore granted KCS’s motion for summary judgment and dismissed Mr. Aucoin’s claim for PTD benefits. Mr. Aucoin appealed, arguing that the WCJ erred in granting summary judgment in favor of KCS because summary judgments were not favored in the law at the time of his work-related accident and because there are genuine issues of material fact concerning Mr. Aucoin’s ability to work and his entitlement to PTD benefits.

LLAW AND ANALYSIS

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Vicksburg Healthcare, LLC v. State ex rel. Dept. of Health and Hospitals, 2010-1248 (La.App. 1st Cir.3/25/11), 63 So.3d 205, 207. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B).

In his first assignment of error, Mr. Aucoin argues that because summary judgments were not favored at the time of his work-related injury in 1992, and that all doubt concerning a dispute as to a material issue of fact is resolved against granting summary judgment, the trial court erred in granting summary judgment. However, the legislature amended La.Code Civ. P. art. 966 in 1996, to provide that, “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. P. art. 966(A)(2) (Emphasis added.). It is well-settled that the 1996 amendment is procedural in nature, and as such it is applied retroactively, as well as prospectively. Barrino v. East Baton Rouge Parish School Bd., 96-1824 (La.App. 1st Cir.6/20/97), 697 So.2d 27, 31. Thus, Mr. Aucoin’s first assignment of error is without merit.

In his second assignment of error, Mr. Aucoin asserts that the WCJ erred in granting summary judgment in favor of KCS, because there are genuine issues of material fact concerning Mr. Aucoin’s ability to work and his entitlement to PTD benefits. The burden of showing that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law was upon the mover, KCSjgin this case. See La.Code Civ. P. art. 966(C)(2). However, if 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 does not require that all essential elements of the adverse party’s claim be negated. Instead, the mover 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, and then the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the advérse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

A fact is material if it is essential to a cause of action under the applicable theory of recovery. Generally, material facts are those that potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of a legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628. Additionally, in ruling on a motion for summary judgment the court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Id. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Id.

Claims for PTD benefits are governed by La. R.S. 23:1221, which provides in relevant part:

| (¡Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(2) Permanent total.
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability. (Emphasis added.)
(b) For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain. (Emphasis added.)
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment. (Emphasis added.)
(d) Notwithstanding any judgment or determination that an employee is permanently and totally disabled, if such employee subsequently has or receives any earnings, including, but not limited to, earnings from odd-lot employment, sheltered employment, or employment while working in any pain, such employee shall not receive benefits pursuant to this Paragraph but may receive benefits computed pursuant to Paragraph (3) of this Section [Supplemental earnings benefits], if applicable. (Emphasis added.)

Thus, the claimant, Mr. Aucoin, bears the statutory burden of proving, by clear and convincing evidence, unaided by any presumption of disability, that he is unable to work at any type of employment of any nature in order to recover PTD benefits. See Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275, 288-897 (discussing the burden of proof in the context of temporary total disability (TTD) benefits, but recognizing that the burden is the same for both TTD and PTD benefits). See also Magee v. Abek, Inc., 2004-2554 (La.App. 1st Cir.4/28/06), 934 So.2d 800, 807, writ denied, 2006-1876 (La.10/27/06), 939 So.2d 1287; Keasley v. Transit Management of Southeast Louisiana, 2010-0786 (La.App. 4th Cir.12/7/10), 52 So.3d 976, 987 n. 19. The fact that he would be working in pain is not proof that he is totally disabled. Buxton, 23 So.3d at 289. Additionally, a person who can engage in a gainful occupation is not totally disabled, even if the occupation is not the same or similar to his old occupation and even if it is not one for which he is particularly fitted by education, training, or experience. Louisiana Ins. Guar. Ass’n v. Weller, 2007-0571 (La.App. 1st Cir.11/2/07), 977 So.2d 29, 33.

To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, in other words, much more probable than not. Magee, 934 So.2d at 807. The claimant’s subjective belief that he cannot work does not satisfy the statutory burden of proof. Paul v. Gipson, 614 So.2d 1275, 1278 (La.App. 2d Cir.1993). The issue of disability is a legal rather than a purely medical determination, with reference to the totality of the evidence, including both lay and medical testimony. Bonvillain v. Preferred Industries and LWCC, 2004-0849 (La.App. 1st Cir.5/27/05), 917 So.2d 1, 8. In order for a claimant to establish that he is disabled such that he is unable to engage in any employment, he must introduce objective medical evidence supporting the existence of a disabling condition. Id. While the workers’ compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant’s burden. Id.

H. Alston Johnson, III, in the Louisiana Civil Law Treatise series, notes: “There is no question but that this [statutory] language was intended to make |sawards for total and permanent disability very difficult to obtain.” 13 La. Civ. L. Treatise, Workers’ Compensation Law and Practice § 275 (4th ed.2002). The Legislature has effectively eliminated all but the most disabled employees from receiving PTD benefits, by requiring that the employee clearly and convincingly show that he is not engaged in any employment. A claimant who holds any job, even a part-time job, after the work injury is not eligible for PTD benefits. See Paul, 614 So.2d at 1278; Reynolds v. Burns Intern. Sec. Services, 535 So.2d 1040, 1044 (La.App. 2d Cir.1988); Captain v. Sonnier Timber Co., 503 So.2d 689, 691 (La.App. 3d Cir.1987).

Based on the record presented in connection with KCS’s motion for summary judgment, it is clear that Mr. Aucoin will not be able to bear the statutory burden of proof concerning the fact that he receives earnings, albeit minimal earnings, by means of sporadic employment with the East Feliciana Parish Clerk of Court for his service as the “keeper of the keys” each time an election is held in Mr. Au-coin’s voting precinct. Mr. Aucoin did not deny or offer any proof that he did not receive the fixed ($75/election) amount of earnings each time he performed this service, regardless of the minimal number of hours that he actually worked. Likewise, Mr. Aucoin did not deny or offer any proof that he did not receive monthly payments from his neighbor in return for the service of watching over his neighbor’s property. While Mr. Aucoin denies that either of these services amount to “work,” the pertinent statute clearly restricts PTD benefits if the claimant is involved in any type of employment or receives any earnings from the employment. It is undisputed that Mr. Aucoin earned the stated nominal amounts for each activity. While the amounts earned are modest, under the clear wording of the statutory provision, Mr. Aucoin is not entitled to receive PTD benefits. See La. R.S. 23:1221(2)(b) and (d). Cf. Daenen v. The Cajun Landing Restaurant, 2004-1193 (La.App. 3d Cir.4/6/05), 899 So.2d 125, 128 (finding error to award |9TTD benefits since claimant was actually earning a modest income of $68 per month for data entry services).

As for the alleged earnings from Ms. Aucoin’s cattle business, we conclude that the record does not support a finding that Mr. Aucoin specifically derived any wages, salary, or earnings from his own labor or services or that he was self-employed in the cattle business. There was absolutely no evidence of an actual dollar amount earned by Mr. Aucoin in the cattle business as contemplated by La. R.S. 23:1221(2)(d). Although the evidence established that Mr. Aucoin occasionally helped by feeding the cattle a few times per month, he was not a full participant in the management or operation of his wife and son’s cattle business so as to rise to the level of employment for wages. Cf. Kim v. East Jefferson Hosp., 96-0838 (La.App. 1st Cir.2/14/97), 691 So.2d 127, 133 (holding that the co-owner of a store who occasionally helped at the store but did not play a role in planning and decision-making, was not considered an employee who worked for wages.)

Therefore, we conclude that the undisputed minimal earnings from Mr. Aucoin’s neighbor and the clerk of court preclude his qualifying for PTD benefits. Thus, we find that the WCJ correctly granted summary judgment in favor of KCS and dismissed Mr. Aucoin’s claim for PTD benefits. Mr. Aucoin’s second assignment of error is without merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. Costs are assessed to the claimant/appellant, Darrel W. Aucoin.

AFFIRMED.

McClendon, j., concurs.

      . Contrary to assertions in Mr. Aucoin's appellate brief, his disputed claim for compensation does not claim past due temporary total disability (TTD) benefits. Thus, the only relevant claim in this appeal involves PTD benefits.

      . The pertinent statute is La. R.S. 23:1221(2)(b), providing in part:
      For purposes of Subparagraph (2)(a) of this Paragraph, compensation for permanent total disability shall not be awarded if the employee is engaged in any employment or self-employment regardless of the nature or character of the employment or self-employment including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain.
      (Emphasis added.)


author: McDonald, j.

text:
    STATE of Louisiana v. Tony Keith STRAUB, Jr.
    No. 2012 KA 0270.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, LA, for Appellee State of Louisiana.
    Frederick II. Kroenke, Jr., Baton Rouge, LA, Attorney for Defendant/Appellant Tony Keith Straub, Jr.
    Before KUHN, PETTIGREW, and McDonald, jj.
   McDonald, j.

| ^Defendant, Tony Keith Straub, Jr., was charged by grand jury indictment with one count of aggravated rape of a victim under the age of thirteen years, a violation of La. R.S. 14:42(A)(4), and pled not guilty. After a jury found defendant guilty as charged, the trial court sentenced defendant to life imprisonment at hard labor, and, in recognition of the Supreme Court’s ruling in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), added that defendant would have the benefit of potential parole at a later date. The trial court subsequently denied defendant’s post trial motions.

In an earlier appeal, State v. Straub, 2011-0155 (La.App. 1st Cir.6/10/11), 2011 WL 3557882 (unpublished), this court affirmed defendant’s conviction, but vacated defendant’s sentence and remanded this matter for resentencing because the trial court failed to rule on defendant’s post trial motions prior to sentencing. On remand, the trial court denied defendant’s post trial motions, and defendant waived all delays for resentencing. The trial court again sentenced defendant to life imprisonment at hard labor and stated that defendant would have the possibility of parole at a later date. Defendant now appeals, alleging one assignment of error pertaining to his resentencing. For the following reasons, we affirm defendant’s sentence with instructions.

ASSIGNMENT OF ERROR

Defendant now argues that the trial court erred in resentencing him to life imprisonment with the possibility of parole. He specifically contends that the sentence imposed was illegally lenient under the provisions of the applicable sentencing statute. Relying on State v. Craig, 340 So.2d 191, 193-94 (La.1976) and Graham, defendant asserts that since the legislatively authorized punishment |sfor aggravated rape is unconstitutional in this case, the trial court should have imposed a sentence of ten to fifty years at hard labor, without benefit of parole, probation, or suspension of sentencing, consistent with the next authorized responsive verdict of attempted aggravated rape.

The United States Supreme Court’s decision in Graham held that the Eighth Amendment forbids the sentence of life without parole for a juvenile offender who did not commit homicide. A state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some meaningful opportunity to obtain release before the end of that term. Graham, 560 U.S. at 48, 130 S.Ct. at 2030. Graham reflects the Supreme Court’s determination that juveniles are a special class of offenders deserving of special protections otherwise not accorded adult offenders, and for purposes of the Eighth Amendment, a juvenile is a person under the age of 18 years at the time of the offense. By adopting a categorical rule, Graham “gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 48, 130 S.Ct. at 2030 & 2032.

After the trial court’s resentencing in this case, in State v. Shaffer, 2011-1756 (La.11/23/11), 77 So.3d 939 (per curiam), the Louisiana Supreme Court issued a per curiam opinion concerning three relators, Shaffer, Leason, and Dyer, who had been convicted of aggravated rape where the offenses were committed while the offenders were under the age of eighteen. See also State v. Leason, 2011-1757 (La.11/23/11), 77 So.3d 933 (per curiam); State v. Dyer, 2011-1758 (La.11/23/11), 77 So.3d 928 (per curiam). In the consolidated applications, relators sought review following denial in the trial court of their motions to correct an illegal sentence and for relief from their terms of life imprisonment at hard labor. Relator Shaffer was convicted of aggravated rape committed while he was a | Juvenile and was sentenced to death. That sentence was subsequently vacated, and he was sentenced to life in prison at hard labor. Relator Leason was convicted of aggravated rape committed as a juvenile and was sentenced to life in prison at hard labor. Even though these two sentences did not preclude eligibility for parole, the relators argued that they were in fact ineligible for parole under La. R.S. 15:574.4(B), which states in pertinent part that no prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years. Relator Dyer was convicted of aggravated rape committed as a juvenile and was sentenced to life in prison at hard labor without the benefit of parole, probation, or suspension of sentence. All three relators argued that their sentences were illegal under Graham and that the proper remedy would be to resentence them according to the penalties provided for the lesser and included offense of attempted aggravated rape.

The Court found that the sentences of all three relators in Shaffer violated the mandate of the Graham case. However, it rejected the relators’ arguments that they should be resentenced to serve the penalty for attempted aggravated rape. The Court specifically held, relying on Graham, that the Eighth Amendment precludes the state from interposing the Governor’s ad hoc exercise of executive clemency as a gateway to accessing procedures the state has established for ameliorating long terms of imprisonment as part of the rehabilitative process to which inmates serving life terms for non-homicide crimes committed when they were under the age of 18 years would otherwise have access, once they reach the age of 45 years and have served 20 years of their sentences in actual custody. Shaffer, 77 So.3d at 942. In formulating the appropriate remedy to satisfy the mandate of Graham, as did the trial court upon resentencing in this case, the Court amended Dyer’s sentence to delete the restriction on parole eligibility. Further, the Department of Corrections was directed to revise Dyer’s prison master to reflect that his sentence |Bis no longer without the benefit of parole and to revise all three relators’ prison masters according to La. R.S. 15:574.4(A)(2) to reflect eligibility for consideration by the Board of Parole. Shaffer, 77 So.3d at 942-43. The Court stated that its decision in Shaffer is “an interim measure (based on the legislature’s own criteria) pending the legislature’s response to Graham.” Shaffer, 77 So.3d at 943 n. 6.

The Court reiterated that it was not ordering the relators released on parole, stating that the determination of whether the relators may be released on parole falls within the exclusive purview of the Board of Parole, charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). The Court stated that access to the Board’s consideration will satisfy the mandate of Graham. Although the Shaffer court did not expressly overrule Craig (wherein the Louisiana Supreme Court remanded for resentencing for aggravated rape to the most serious penalty for the next available responsive ^verdict, which is attempted aggravated rape), it is clear that the Court considered and rejected the Craig remedy, albeit without explanation. Shaffer, 77 So.3d at 941 n. 3.

In the present case, we find that defendant’s legal position requires the same resolution granted to those relators in Shaffer. Defendant was born on April 23,1987, and he was convicted of aggravated rape committed between April 23, 2002 and June 1, 2004, while he was still a juvenile. Defendant was originally sentenced to serve a term of life imprisonment at hard labor, but the trial court expressly stated that defendant would have the benefit of possible parole at a later time. This court’s previous action vacating defendant’s original sentence was made purely as a result of the trial court’s failure to rule on defendant’s post trial motions prior to defendant’s sentencing. At the hearing on defendant’s resentenc-ing, the trial court again sentenced defendant to a term of life imprisonment at hard labor, with the possibility of parole.

Subsequent to the trial court’s resen-tencing of defendant, the Louisiana Supreme Court gave clear direction in Shof-fer as to the appropriate remedy in cases such as this one. We find that the trial court’s non-imposition of the parole restriction provided in La. R.S. 14:42(D)(1) is consistent with the mandate of Shaffer. The Department of Corrections is directed to revise the defendant’s prison master according to the criteria in La. R.S. 15:574.4(A)(2) to reflect an eligibility date for consideration by the Board of Parole.

Like the court in Shaffer, we reiterate that this court is not ordering the defendant’s release on parole. The determination of whether the defendant may be released on parole falls within the purview of the Board of Parole, which is charged with the duty of ordering parole “only for the best interest of society, not as an award of clemency.” La. R.S. 15:574.4.1(B). As noted in Shaffer, access to |7the Board’s consideration will satisfy the mandate of Graham. Shaffer, 11 So.3d at 943.

SENTENCE AFFIRMED WITH INSTRUCTIONS.

      . The facts of the offense were not recited in defendant’s original appeal opinion because defendant did not challenge his conviction and because the victim of the crime is a juvenile. Because these facts are also irrelevant to the instant appeal, they are not set forth herein.

      . Louisiana Revised Statute 15:574.4(A)(2) provides, in pertinent part, that:
      [U]nless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five. This provision shall not apply to a person serving a life sentence unless the sentence has been commuted to a fixed term of years.

      . During the 2012 legislative session, the legislature passed 2012 I.a. Acts No. 466 in order to set forth parole criteria for juvenile non-homicide offenders who have been sentenced to life imprisonment. This act added the following provision, in pertinent part, to La. R.S. 15:574.4:
      D.(l) Notwithstanding any provision of law to the contrary, any person serving a sentence of life imprisonment who was under the age of eighteen years at the time of the commission of the offense, except for a person serving a life sentence for a conviction of first degree murder (R.S. 14:30) or second degree murder (R.S. 14:30.1) shall be eligible for parole consideration pursuant to the following provisions of this Subsection if all of the following conditions have been met:
      (a) The offender has served thirty years of the sentence imposed.
      (b) The offender has not committed any disciplinary offenses in the twelve consecutive months prior to the parole eligibility date.
      (c) The offender has completed the mandatory minimum of one hundred hours of prerelease programming in accordance with R.S. 15:827.1.
      (d) The offender has completed substance abuse treatment as applicable.
      (e) The offender has obtained a GED certification, unless the offender has previously obtained a high school diploma or is deemed by a certified educator as being incapable of obtaining a GED certification due to a learning disability. If the offender is deemed incapable of obtaining a GED certification, the offender shall complete at least one of the following:
      (i) A literacy program.
      (ii) An adult basic education program.
      (iii) A job skills training program.
      (0 The offender has obtained a low-risk level designation determined by a validated risk assessment instrument approved by the secretary of the Department of Public Safety and Corrections.
      (g) The offender has completed a reentry program to be determined by the Department of Public Safety and Corrections.
      (h) If the offender was convicted of aggravated rape, he shall be designated a sex offender and upon release shall comply with all sex offender registration and notification provisions as required by law.
      This provision became effective August 15, 2012.


author: WHIPPLE J.

text:
    STATE of Louisiana v. William Anthony ALEXANDER.
    No. 2012 KA 0330.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 2012.
    Joseph L. Waitz, Jr., Bradley A. Doyle, Ellen Daigle Doskey, Houma, LA, for Ap-pellee, State of Louisiana.
    Bertha M. Hillman, Thibodaux, LA, for Defendant/Appellant, William Anthony Alexander.
    Before WHIPPLE, McCLENDON and HIGGINBOTHAM, JJ.
   WHIPPLE J.

2The defendant, William Anthony Alexander, was charged by bill of information with one count of possession of a firearm by a convicted felon (count I), a violation of LSA-R.S. 14:95.1(A); and one count of possession of a firearm on the premises of an alcoholic beverage outlet (count II), a violation of LSA-R.S. 14:95.5(A), and pled not guilty on both counts. Following a jury trial on count I, he was found guilty of the responsive offense of attempted possession of a firearm by a convicted felon, a violation of LSA-R.S. 14:27(A) and LSA-R.S. 14:95.1(A). He was sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, contending the trial court imposed an illegal and unconstitutionally excessive sentence. For the following reasons, we affirm the conviction on count I, vacate the sentence on count I, and remand for resentencing on count I.

FACTS

On July 1, 2010, Terrebonne Parish Sheriffs Office Narcotics Agents Russell Madere, Phillip Pitre, Joseph Renfroe, and Dallas Bookenberger were on patrol in an unmarked SUV when they observed the defendant and Jovi Guidry leaning on the roof of a Buick LeSabre, engaged in a loud, “heated debate” over how the keys had been locked inside the vehicle. The men were standing in the parking lot behind Uptown Sports Bar on School Street in Terrebonne Parish. Agent Madere [Ssaw the defendant notice the SUV, and immediately stiffen his body posture, break eye contact, and make some “nervous mannerisms ... common to not wanting to be contacted by the police.” In response to the defendant’s actions, Guidry placed his hands in his pockets and attempted to separate himself from the Buick. Based on his extensive training particular to the detection of narcotics activity, Agent Madere became concerned as to possible illegal activity. Agent Ren-froe activated the emergency lights on the SUV, and the agents pulled over and exited their vehicle.

Agents Bookenberger and Renfroe approached Guidry and began talking to him. Agent Madere announced “Sheriffs Office,” and heard a “loud clang,” which sounded like a “piece of metal hitting the ground.” Agent Madere attempted to identify the noise, and saw the defendant attempting to kick what appeared to be a gun under the Buick. Agent Madere shouted “gun — gun—gun.” The defendant stated, “that ain’t mine; I found that by the back wall; I was gonna sell it on the street.” The object was later identified as a stolen .380 caliber, semi-automatic pistol. According to Agent Bookenberger, Guidry did not drop the weapon because he could see Guidry from “head to toe” and did not see him drop anything. Thereafter, Agent Madere looked into the Buick through the front windshield and saw an additional weapon, a .38 revolver, lodged between the driver’s door and the driver’s seat. The Buick also contained .09 ounces of marijuana.

ILLEGAL AND EXCESSIVE SENTENCE

In his sole assignment of error, the defendant argues the trial court imposed a sentence outside the range provided by LSA-R.S. 14:27(D)(3) and the applicable version of LSA-R.S. 14:95.1(B). Additionally, he argues the sentence was | ¿unconstitutionally excessive. The State agrees that the trial court imposed a sentence in excess of the applicable maximum sentence.

The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518, 520-22. The defendant was found guilty of attempting to violate LSA-R.S. 14:95.1 on July 1, 2010. Prior to amendment by 2010 La. Acts No. 815, § l, LSA-R.S. 14:95.1(B) provided:

Whoever is found guilty of violating the provisions of [LSA-R.S. 14:95.1] shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

Further, under LSA-R.S. 14:27(D)(3), whoever attempts to violate LSA-R.S. 14:95.1, shall be fined or imprisoned, or both, in the same manner as for the offense attempted, with such fine or imprisonment not to exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. Pursuant to LSA-R.S. 14:27(D)(3) and the applicable version of LSA-R.S. 14:95.1(B), the maximum sentence allowed by law for the offense the defendant was convicted of was seven and one-half years at hard labor without benefit of parole, probation, or suspension of sentence and a fine of not more than $2,500.00. The defendant, however, was sentenced to eight years at hard labor without benefit of parole, probation, or suspension of sentence.

The appropriate remedy when the trial court incorrectly calculates the sentencing range is for the reviewing court to vacate the sentence and remand for resen-tencing. State v. Butler, 93-1317 (La.App. 1st Cir.10/7/94), 646 So.2d 925, 933, writ denied, 95-0420 (La.6/16/95), 655 So.2d 340. Accordingly, we vacate the sentence imposed on count I and remand for resen-tencing on that count in accordance with LSA-R.S. 14:27(D)(3) and LSA-R.S. 14:95.1(B) (prior to amendment by 2010 La. Acts No. 815, § 1). Given our conclusion that the sentence imposed on count I was illegal and must be vacated, we pre-termit the defendant’s remaining challenge to the sentence, i.e., that it was unconstitutionally excessive, as moot.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction on count 1, vacate the sentence on count I, and remand for resentencing on count I.

CONVICTION ON COUNT I AFFIRMED; SENTENCE ON COUNT I VACATED; REMANDED FOR RE-SENTENCING ON COUNT I.

      . The State and the defense stipulated that, on December 10, 2009, the defendant pled guilty to second degree battery.

      .Counts I and II were not triable by the same mode of trial, and thus, should not have been charged in the same bill of information. See LSA-C.Cr.P. art. 493. The record, however, indicates the defendant was tried only on count I. Jovi Shane Guidry was charged by the same bill of information only with count II.

      . The record does not reflect the disposition of count II against the defendant.

      . Lieutenant Madere testified he had over five hundred forty-eight hours of investigations and schooling particular to the investigation of narcotics-related activities.

      . Effective August 15, 2010, 2010 La. Acts No. 815, § 1, amended LSA-R.S. 14:95.1(B) by substituting "twenty” for "fifteen” and by adding a second sentence governing the penalty for an attempt to violate LSA-R.S. 14:95.1.