author: I (WHIPPLE, J. 11FITZSIMMONS, J.,

text:
    In the Matter of DOW CHEMICAL CO. LOUISIANA OPERATIONS COMPLEX CELLULOSE AND LIGHT HYDROCARBONS PLANTS, PART 70 AIR PERMIT MAJOR MODIFICATIONS AND EMISSION v. REDUCTION CREDITS.
    No. 2003 CA 2278.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.

      Adam Bobich, John Suttles, New Orleans, Counsel for Plaintiff/Appellant, Louisiana Environmental Action Network.
    John A. Gray, Plaquemine, Counsel for Plaintiff/Appellee, Dow Chemical Company.
    John Shortess, Steven J. Levine, Baton Rouge, Counsel for Plaintiff/Appellee, Dow Chemical.
    Donald Trahan, Baton Rouge, Counsel for Defendant/Appellee, Louisiána Department of Environmental Quality.
    Before: WHIPPLE, FITZSIMMONS, and DOWNING, JJ.
   I (WHIPPLE, J.

The Louisiana Environmental Action Network (“LEAN”) and Albertha Hasten sought judicial review, pursuant to LSA-R.S. 80:2050.21(A), of two final permit decisions granting major air permit modifications to Dow Chemical’s Louisiana Operations Complex (“Dow”) in Plaquemine, Louisiana, and a decision approving Dow’s Volatile Organic Compound (“VOC”) Emission Reduction Credit application, by the Louisiana Department of Environmental Quality (“the DEQ”). By judgment dated June 24, 2003, the Nineteenth Judicial District Court upheld the decision of the DEQ to grant the air permit modifications and the VOC Emission Reduction Credit application.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 30, 2001, Dow applied for a permit to modify existing Permit No. 2024-V1, at the Light Hydrocarbons III Plant, to increase VOC emissions. In the application, Dow proposed to offset the emission increases called for in the requested permit modifications with emission reduction credits from the 1992 closure of a wastewater pond, Pond EC-2. Pond EC-2, a wastewater collection and treatment pond, had served as the end-point of a number of wastewater streams within the Dow facility, including a wastewater stream from the Cellulose Plant. The closure of Pond EC-2, and its replacement with a floating roof tank for storage and treatment of wastewater had resulted in a VOC emission reduction.

On February 8, 2002, Dow applied for a modification of another existing permit. This permit authored a major modification of Cellulose |3PIant Air Permit No. 2227-VI. One of the projects addressed by the proposed modification, the Modified Low Salt Project, was projected to result in a net increase of VOC emissions, thus constituting a “major modification,” and thereby invoking the nonattainment new source review procedure by the DEQ.

Dow further requested that the DEQ review and approve Dow’s application for certain VOC Emission Reduction Credits, identified as VOC-10, pursuant to Louisiana Administrative Code 33:111. Chapter 6. The emission reduction credits generated by the closure of Pond EC-2 and its replacement by a floating roof tank were the subject of the emission reduction credit application VOC-10, as discussed above in Dow’s application for a permit to modify the existing permit at the Light Hydrocarbons III Plant. According to Dow, the replacement of the pond with the floating roof tank resulted in a net reduction in VOC emissions. These emission reduction credits were used as the necessary offsets for the major modifications.

|4Both permit applications, relying on the VOC Emission Credit Application previously approved by the DEQ, requested adjustment of the permit limits for the existing facility based upon updated emission estimation factors and authorization of construction of modifications of the facility despite the increase in emissions.

After publication on September 19, 2002 of a notice of public hearings and a thirty-day comment period in The Advocate, The West Side Journal, and The Plaquemine Post South, the DEQ held public hearings on October 22, 2002. On October 29, 2002, at the close of the public comment period, the DEQ approved the applications and issued new permits, No. 2024-V2 and No. 2227-V2. In response to the VOC-10 application, the DEQ granted Dow emission reduction credits.

By letter dated November 7, 2002, representatives from the DEQ notified all interested parties, including LEAN, that Permits 2227-V2, 2024-V2, and Application VOC-10 had been granted. The DEQ attached to these letters copies of a lengthy and detailed document entitled “Basis for Decision” and “Public Comment Response Summary” for each permit and application decision. The Basis for Decision included a detailed analysis, which formed the basis for the DEQ’s ultimate decision articulating a rational connection between the facts found and the order issued pursuant to the mandates of the Louisiana Supreme Court in Save Ourselves, Inc. v. Louisiana Environmental Control Commission, 452 So.2d at 1152, 1159 (La.1984).

Petitioners then filed a Petition for Review in the Nineteenth Judicial District Court, pursuant to LSA-R.S. 30:2050.21, seeking judicial review of the DEQ’s two final permit decisions, as well as its decision to approve Dow’s VOC Emission Reduction Credit application. After review and 1 ^consideration of the administrative record, the briefs, and oral argument of the parties, the district court rendered judgment and written reasons on August 7, 2003, affirming the action of the DEQ.

Specifically, the district court: (1) affirmed the DEQ’s issuance of the Light Hydrocarbons III air permit modification, Permit No. 2024-V2; (2) affirmed the DEQ’s issuance of the Emission Reduction Credit Certificate for VOC-10; and (3) remanded to the DEQ to remove the provisions of the Cellulose Plant pefmit modification, Permit No. 2227-V2, that involved the Modified Salt Project and VOC emission increases associated with the Modified Low Salt Project; the remainder of the provisions of Permit No. 2227-V2 were affirmed. LEAN filed the instant appeal, challenging the district court’s judgment.

STANDARD OF REVIEW

Under Louisiana law, the DEQ has a constitutional duty to act as the trustee of the environment. In re Shintech, Inc., 2000-1984, p. 7 (La.App. 1st Cir.2/15/02), 814 So.2d 20, 25, writ denied, 2002-0742 (La.5/10/02), 815 So.2d 845. The Supreme Court has interpreted this constitutional mandate to impose a “rule of reasonableness,” which requires the DEQ to determine, before granting approval of any proposed action affecting the environment, that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare. Save Ourselves, Inc., 452 So.2d at 1157. However, considerable weight is afforded to an administrative agency’s construction of a statutory scheme that it is entrusted to administer. Calcasieu League For Environmental Action Now v. Thompson, 93-1978, p. 12 (La.App. 1st Cir.7/14/95), 661 So.2d 143, 149; writ denied, 95-2495 (La.12/15/95), 664 So.2d 459.

| (¡In rendering a decision, the DEQ is required to: (1) make basic findings, as supported by the evidence, (2) make ultimate findings, which flow from the basic findings, and (3) to articulate a rational connection between the facts found and the order issued. Save Ourselves, Inc., 452 So.2d at 1159. This circuit has held that pursuant to Save Ourselves, Inc., the DEQ’s written findings of fact and reasons for decision must address whether: (1) the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible; (2) a cost-benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrates that the latter outweighs the former; (3) there are alternative projects or alternative sites or mitigating measures that would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. See In re Belle Company, L.L.C., 2000-0504, pp. 16-17 (La.App. 1st Cir.6/27/01), 809 So.2d 225, 238; In re Rubicon, Inc., 95-0108, p. 12 (La.App. 1st Cir.2/14/96), 670 So.2d 475, 483. Louisiana Revised Statute 30:2050.21 sets forth the procedure for judicial review of a final permit decision of the DEQ. Judicial review provisions of the Administrative Procedure Act and its standard of review are applicable to DEQ proceedings. LSA-R.S. 30:2050.21(F). Judicial review is conducted by the court without a jury and is confined to the record. LSA-R.S. 49:964(F).

When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. North Baton Rouge Environmental Association v. Louisiana Department of Environmental Quality, 2000-1878, p. 7 (La.App. 1st Cir.11/14/01), 805 So.2d 255, 260, writ denied, 2002-0408 (La.4/19/02), 813 So.2d 1086. The Nineteenth Judicial District Court is vested with exclusive jurisdiction to review final permit actions, final enforcement actions, or declaratory rulings made by the DEQ. LSA-R.S. 30:2050.21(A). Any party aggrieved by a final judgment or interlocutory order or ruling of the Nineteenth Judicial District Court may appeal or seek review to this court. LSA-R.S. 30:2050.31.

A reviewing court may affirm the decision of the agency or remand the case for further proceedings. LSA-R.S. 49:964(G). The court may reverse or modify an agency 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 the evidence as determined by the reviewing court. North Baton Rouge Environmental Association, 2000-1878 at pp. 7-8, 805 So.2d at 260.

The manifest error test of LSA-R.S. 49:964(G)(6) was previously used in reviewing the facts as found by the agency, as opposed to the arbitrariness test used in reviewing conclusions and exercises of agency discretion. We note that Acts 1997, No. 128 § 1, effective June 12, 1997, amended paragraph G(6) to make the trial court a fact finder who weighs the evidence and makes its own conclusions of fact by a preponderance of the evidence. Multi-Care, Inc. v. State, Dept. of Health & Hospitals, 00-2001, p. 4 (La.App. 1st Cir.11/9/01), 804 So.2d 673, 675. See Acts 1997, No. 128 § 1.

On review, an appellate court should not reverse a substantive decision of the DEQ on its merits, unless it can be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. In re Shintech, Inc., 2000-1984 at p. 7, 814 So.2d at 26. However, if the decision was reached procedurally, without individualized consideration and balancing of environmental factors conducted fairly and in good faith, it is the courts’ responsibility to reverse. Save Ourselves, Inc., 452 So.2d at 1159. The test for determining whether an action was arbitrary or capricious is whether the action taken was “without reason.” Calcasieu League for Environmental Action Now, 661 So.2d at 150.

DISCUSSION

In LEAN’S first assignment of error, it challenges the DEQ’s calculation of emission reduction credits available from the VOC-10 application. In its second assignment of error, LEAN contends that the district court erred in upholding the DEQ’s approval of Dow’s application for credits for emission reductions (which credits are used as “offsets” to justify emission increases) when, according to LEAN, the law already required reduction of the emissions at issue and DEQ regulations specify that reductions, which are “otherwise required ... shall not be credited for purposes of satisfying the offset requirement,” citing LAC 33:III.504(F)(10). In its third assignment of error, LEAN contends that the district court erred in upholding the DEQ’s decision to increase Dow’s allowable VOC emissions without legally required offsets absent a “basic finding of facts as supported on the record” to explain the causes for the emissions increases, citing In re Rubicon, Inc., 95-0108 at p. 11,19670 So.2d at 482. In support, LEAN argues that the DEQ “is required to make a basic finding of fact as supported on the record,” and that the DEQ has offered only “speculative and contradictory justifications for its permitting decisionfs].”

Essentially, the underlying contention in all of LEAN’S assignments of error is that the DEQ erred in allowing Dow to use erroneously calculated emission reduction credits to justify VOC emission increases of more than fifty tons per year in a community that already violates health protection standards for air quality.

LEAN argues that in order to qualify as credits, emission reductions must be “surplus, permanent, quantifiable, and enforceable,” citing to LAC 33:III.607(F)(1). “Surplus Emission Credits” (referred to herein as “surplus”) are defined as credits that are “voluntarily created for an emissions unit and have not been required by any local, state, or federal law, regulation, order, or requirement.” LAC 33:111.605. As such, LEAN argues that pursuant to LAC 33:III.504(F)(10), emission reductions otherwise required by state regulations can not be used as credits for purposes of satisfying the offset requirement.

Additionally, LEAN contends that emission reduction credits may be used as offsets only if they are surplus when used to offset a permit modification. And, in order to determine whether offsets are “surplus,” an adjustment must be made to account for all new or revised federal or state regulations adopted between the time of the original reduction and the time the offsets are used. LEAN then, in brief, sets forth its theory of how Dow erroneously relied on emission reductions from the 1992 closure of wastewater Pond EC-2 as the source of its offsetting credit, contending that no surplus emission credit remains from the closure of the pond.

ImCiting LAC 33:III.2153(B), which LEAN contends was promulgated by the DEQ to limit VOC emissions from industrial wastewater, LEAN argues that pursuant to the regulations, “[a]ny component ... containing] an affected VOC wastewa-ter stream, shall be controlled” in accordance with the requirements of the rules. LEAN contends that Dow had “improperly” allowed another compliance option pursuant to LAC 33:III.2153(G)(4), which provides that:

Wastewater components are exempt from the control requirements of Subsection B of this Section if the overall control of VOC emissions from the wastewater of affected source categories is at least 90 percent less than the 1990 baseline emissions inventory, and the following requirements are met...

LEAN claims that pursuant to the Industrial Wastewater Regulations listed in LAC 33:111.2153, Dow had to either (1) implement controls on “any component ... if the component contains an affected VOC wastewater stream” (LAC 33:III.2153(B)), or (2) obtain an exemption by reducing “the overall ... VOC emissions from the wastewater” at the facility. LAC 33:III.2153(G)(4). Rather than implement controls on all wastewater components at the facility, Dow instead chose to comply with the Wastewater Regulations by reducing overall VOC emissions from all wastewater at the facility, including Pond EC-2, by more than 90%. In order to accomplish this 90% reduction, Dow closed the Pond EC-2 and replaced it with a closed tank. According to LEAN, this closure produced an amount of emission credits that have already been overdrawn by Dow, given the applicable statutes and regulations.

| n Contrariwise, Dow contends that while LEAN does not challenge any of the underlying emission figures, dates, events, or other facts, LEAN utilizes the “wrong” figures in calculating the reduction credits. Dow does not dispute that it applied for and obtained the exemption available under LAC 33:III.2153(G)(4), leading to a 90% reduction of all wastewater emissions from its facility. Dow contends that the issue is precisely whether, under LAC 33:111:2153, Dow was “required” to make a 90% reduction in all wastewater emissions (including those from the Pond EC-2), or whether Dow’s 1992 action was a voluntary “overcontrol” of those emissions. Dow asserts that the DEQ correctly found that Dow’s actions in 1992 constituted a voluntary “overcontrol” of emissions.

In support, Dow contends that the only emission reductions “required” are a 90% reduction in emissions from any “affected wastewater stream” citing LAC 33:III.2153(A), (B)(1) and (2), and (H)(1). Focusing on the last sentence of LAC 33:III.2153(B), Dow argues that when an “affected wastewater stream” is mixed with other “unaffected” wastewater streams for treatment, as occurred in Pond EC-2, “the amount of VOC to be removed from the combined wastewater streams shall be at least equal to the total 112amount of VOC that would be removed from each individual stream so that they meet the reduction criteria mentioned above in this section.” LAC 33:III.2153(B). Dow contends that it is undisputed that the only “affected waste-water stream” flowing into Pond EC-2 was the Cellulose stream. Thus, Dow argues, had Pond EC-2 been operating in 1995, Dow would have been required to reduce VOC emissions by an amount “at least equal to” a 90% reduction in emissions from the Cellulose stream (the only “individual stream” subject to the “reduction criteria” of LAC 33:III.2153(B)).

Dow avers that the DEQ properly interpreted LAC 33:111.2153(13) to require Dow only to reduce by 90% those VOC emissions attributable to the “affected waste-water stream,” or the Cellulose stream, not all emissions from Pond EC-2. Thus, Dow concludes that this is not an overall 90% reduction from the entire component, as LEAN claims, but rather only an amount “at least equal to the total amount of VOC” required to be removed from each “affected” stream prior to mixing. LAC 33:III.2153(B).

Dow further argues that LEAN’S strained reading of thé regulations would discourage companies from ever undertaking comprehensive wastewater treatment programs. Instead, companies would be encouraged to isolate “affected” wastewa-ter streams for separate containment and treatment, thus discouraging comprehensive reduction of VOC emissions from all wastewater. Dow contends that the DEQ’s interpretation of LAC 33:III.2153(B) was correct and proper, not “without reason.”

In regard to LAC 33:III.2153(G)(4), Dow contends that this Subsection encourages “over compliance,” in that it rewards emission reductions in excess of the control requirements of Subsection B. Further, Dow asserts that there are no mechanisms to compel a company to adopt the exemption standards of LAC 33:III.2153(G)(4), whereas the control | ^requirements of LAC 33:III.2153(B) call • for mandatory compliance and regulatory enforcement. Dow argues that because it chose to qualify for the exemption, and therefore reduce its emissions in excess of the minimum requirements of LAC 33:III.2153(B), the DEQ properly and reasonably concluded that application of the pertinent regulations should not penalize Dow for choosing “over control” over “minimal compliance.”

In its brief on appeal, the DEQ sets forth that the Dow facility is located at the border of Iberville and West Baton Rouge Parishes, both of which are both designated as “nonattainment” for the one-hour ozone standard. The DEQ claims that the modifications of the facility proposed by the source in both permit applications resulted in significant net emission increases of VOC’s. As a result, the DEQ reviewed the applications to determine if the facility and the proposed projects met the required elements of LAC 33:111.504, which sets forth the “Nonattainment New Source Review Procedures.” In so doing, the DEQ maintains that it properly reviewed and determined the validity of the emission reduction credits in question that were used as offsets.

The DEQ contends that in its review and determination of the emission reduction credits by the closure of Pond EC-2, it clearly considered LAC 33:111.2153 as promulgated and the exemption provided in subsection G on whether the emission reductions remained “surplus,” as statutorily required. The DEQ contends that LEAN’S arguments fail to recognize that LAC 33:111.2153 is not applicable to every wastewater stream; only to “affected volatile organic compounds wastewater” as defined by LAC 33:III.2153(A). The DEQ agrees with Dow that by eliminating Pond EC-2 altogether and routing all wastewa-ter stream to the floating roof tank, Dow “over controlled” the VOC emissions.

|uIn regard to the specific amount of offsets allowed, the DEQ contends that increases in permit limits that are the result of more accurate determinations of the source’s potential to emit do not require offsets. The DEQ points out that there is a distinction between a permit modification and modifications of the facility. Citing LAC 33:111.504, the DEQ claims that offsets are only required for a “major modification” of the facility. While the permits at issue herein authorize both a “major modification” of the facility and properly required offsets for the increase in emissions as required by the Nonattainment New Source Review Program, the DEQ contends that the permits also increased permitted emission limits for certain sources within the existing facility that were not affected by the major modification.

The DEQ points out that in prior permitting actions, Dow had previously estimated the maximum potential emissions from the facility based on the existing physical capacity of the facility, which was then used to establish a permit limit. Since that time, the facility improved its ability to estimate its potential emissions and Dow requested a revision to its permitted limits to reflect the potential emissions accordingly. Further, the DEQ notes that LAC 33:111.504 is only applicable to new emissions that are the result of either “construction” of a brand new “major source” or a “physical change or change in method of operation” at an existing major source that results in a “net emissions increase” above a threshold amount. The DEQ contends that because the increase in permitted emissions is not the result of the proposed modification, there is no requirement for offsets.

The DEQ notes that on September 11, 2002, the DEQ forwarded the proposed Cellulose permit together with the information regarding the validity of the ERC’s as offsets to the Environmental Protection Agency. I^The DEQ notes that the Environmental Protection Agency had forty-five days to review the proposed permits pursuant to 40 C.F.R. Part 70 and LAC 33:111.533, including review of the validity of the emission reduction credits, and object to the issuance of the permits. The DEQ notes that the Environmental Protection Agency did not object to the DEQ’s determination of the emission reduction credits and contends that this court, like the district court, should defer to the DEQ’s soundly reasoned and amply documented consideration of these matters. After careful review, we agree.

Mindful of its standard of review, the district court stated in written reasons that after reviewing the record, the court found that the DEQ had not been arbitrary in its permit decision. The district court specifically noted that the record clearly showed that the DEQ had entered into the requisite fact-finding and cost-benefit analysis. The district court also found that after the parties agreed at the hearing that the Modified Low Salt Project aspect of the permit was withdrawn, there were sufficient emission reduction credits in Dow’s favor applying either the DEQ’s or LEAN’S analysis of the credits. Lastly, the district court found that the record indicated that the DEQ had reached its decisions after appropriate public debate and proper consideration of the public interest in granting the permits. After thoroughly reviewing the record before us on appeal, and the district court’s sound reasons for rejecting the petition for judicial review, we find no error.

At the outset, we note as did the district court that petitioners failed to present any expert testimony to establish their claim that the DEQ erroneously calculated the amount of the emission reduction credits or to show what, if any, credits would apply. Absent any such testimony, and given the record as a whole, we find no basis for concluding that the DEQ |lfiacted “without reason.” See Calcasieu League For Environmental Action Now, 661 So.2d at 150.

Moreover, for each application, we note that the DEQ painstakingly conducted and documented, its thorough analysis, which considered the background, public comment, public comment response summary, alternative sites, alternative projects, mitigating measures, avoidance, of adverse environmental effects, cost/benefit analysis, social and economic benefits, and environmental justice/civil rights Title IV issues as mandated by the Louisiana Supreme Court in Save Ourselves, Inc. In so doing, the DEQ sufficiently addressed (1) the potential and real adverse environmental effects of the proposed project have been avoided to the maximum extent possible; (2) a cost-benefit analysis of the environmental impact costs balanced against the social and economic benefits of the project demonstrates that the latter outweighs the former; and (3) alternative projects or alternative sites or mitigating measures that would offer more protection to the environment than the proposed project without unduly curtailing non-environmental benefits to the extent applicable. See In re Belle Company, L.L.C., 2000-0504 at pp. 16-17, 809 So.2d at 238; In re Rubicon, Inc., 95-0108 at p. 12, 670 So.2d at 483. Thus, we specifically reject the argument that DEQ failed to comply with its constitutional mandate in considering and acting upon Dow’s requests.

Given our standard of review, absent a showing that the balance of costs and benefits that was struck was arbitrary or that the DEQ gave insufficient weight to environmental protection, we decline to reverse the DEQ’s decisions herein. Further, we conclude that the findings of fact are amply supported by a preponderance of evidence in the record, and that the 1 17DEQ’s permitting decisions are amply supported by a detailed articulated basis for the grant of each permit and application.

After reviewing the record and considering the arguments advanced by the parties, we find that the appellants fail to demonstrate that the DEQ acted arbitrarily or failed to give sufficient weight to environmental concerns in balancing the costs and benefits of granting the two major air pérmit modifications and approving the VOC Emission Reduction Credit application. Rather, the record demonstrates that the DEQ reasonably determined that any adverse environmental impacts had been minimized or avoided as much as possible consistent with the public welfare.

These assignments of error lack merit.

CONCLUSION

For the above and foregoing reasons, the June 24, 2003 judgment of the trial court is affirmed. Costs of this appeal in the amount of $422.61 are assessed against appellants, Louisiana Environmental Action Network and Albertha Hasten.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

11FITZSIMMONS, J.,

concurring, with reasons.

While I agree that the manifest error standard was replaced by one of a preponderance of the evidence, the mandated review does not end there. In addition, La. R.S. 49:964G(6) requires the reviewing court to “make its own determination and conclusions of fact by a preponderance of the evidence based upon 'its own evaluation of the record reviewed in its entirety,” after giving “due regard .to the agency’s determination of credibility issues.” After such an evaluation of the entire record, I respectfully concur.

      . Albertha Hasten is a concerned resident of Iberville Parish, who lives near the Dow facility.

      . According to the district court’s written reasons for judgment, the parties agreed to withdraw the Modified Low Salt Project aspect of the permit application. Although the judgment indicates that the parties appeared before the district court for oral argument on May 27, 2003, a transcript of the hearing is not contained in the record before us on appeal.

      . The Environmental Protection Agency designates each air quality control region within the state on the basis of whether the region meets applicable ambient air quality standards. If the control region complies, it is said to be “in attainment.” Regions that do not comply are in "nonattainment.” See 42 U.S.C. 7407(b). The attainment status is determined for each criteria pollutant. According to the DEQ, all regions in Louisiana are in attainment for all criteria pollutants except ozone. The following five parishes from the Baton Rouge Metropolitan Statistical Area are in nonattainment status regarding the one-hour ozone standard: Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge.

      .As the proposed modifications to both the Light Hydrocarbons III Plant and Cellulose Plant resulted in "significant” increases in emissions of VOCs in an area classified as nonattainment for ozone, they each constituted a "major modification” pursuant to the Nonattainment New Source Review requirements, and "offsets” for the increases resulting from the proposed modifications to the facility were required. An "offset” is a decrease in previously existing emissions to cancel out emission increases associated with the proposed modification of the facility.

      . Subsection 2153 of LAC 33:111 is entitled, "Limiting Volatile Organic Compound Emissions From Industrial Wastewater.”

      . LAC 33:111.2153(B) provides in part:
      Control Requirements. Any person who is the owner or operator of an affected source category within a plant shall comply with the following control requirements. Any component of the wastewater storage, handling, transfer, or treatment facility, if the component contains an affected VOC wastewater stream, shall be controlled in accordance with Subsection B.l, 2, or 3 of this Section. The control requirements shall apply from the point of determination of an affected VOC wastewater stream until the affected VOC wastewater stream is either returned to a process unit, disposed of in an underground injection well, incinerated, or treated to reduce the VOC content of the wastewater stream by 90 percent and also reduce the VOC content of the same wastewater stream to less than 1000 ppm by weight. For waste-water streams that are combined and then treated to remove VOC, the amount of VOC to be removed from the combined wastewater stream shall be at least equal to the total amount of VOC that would be removed from each individual stream so that they meet the reduction criteria mentioned above in this Subsection.


source: Caselaw Access Project

author: LSUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Kendra DENNISON, individually and as the Administrator of her Minor Child, Macon Clark v. INCORPORATED WHC, its Insurance Company, American Guarantee and Liability Insurance Company, Neley Chaddrick and his unknown Insurance Company, ABC Insurance Company.
    No. 04-CA-304.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Edwin G. Preis, Jr., Richard J. Hymel, Willard P. Schieffler, Preis, Kraft & Roy, Lafayette, LA, for Defendants/Appellants, WHC, Inc., American Guarantee and Liability Insurance Company and Neley Chaddrick.
    James E. Cazalot, Jr., Law Offices of H. Edward Sherman, New Orleans, LA, for PlaintiffAppellee, Rex Mareno.
    Joseph E. Lucore, New Orleans, LA, for Defendants/Appellees, Geico General Insurance Company and Kendra Dennison.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   LSUSAN M. CHEHARDY, Judge.

Appellants contest the finding of liability and allocation of fault against them, asserting that they should have been found free of fault and all liability should have been assessed against the other, non-appealing defendants. We disagree and we affirm the district court’s judgment.

This appeal arises from a December 6, 2000 multi-vehicle accident on Airline Highway in St. John Parish, in which Ne-ley Chaddrick was operating a truck owned by his employer, WHC, Inc. At the intersection of Airline Highway and Terre Haute Road, Chaddrick slowed to make a left turn and his truck was struck from the rear by a car driven by Kendra Dennison.

Rex Mareno was in a pickup truck following Dennison’s car. He swerved to avoid the collision, but his vehicle was damaged by flying debris from the other vehicles. In addition, Mareno sustained lower-back strain due to jolting as he swerved to avoid the accident.

Dennison filed suit against Chaddrick, WHC, and their insurer, American Guarantee & Liability Insurance Company (AG & L). Mareno filed a separate suit against Dennison and her insurer, GEICO General Insurance Company (GEICO), and against Chaddrick and AG & L; GEICO filed a cross-claim against Chaddrick |4and AG & L in Mareno’s suit. Chaddrick and AG & L moved for consolidation of the two lawsuits, which was granted.

Dennison’s claims were settled prior to trial. Mareno’s claims were tried in a bench trial on August 13, 2003.

The court rendered judgment in favor of Mareno against Dennison, Chaddrick, and their insurers, jointly, severally and in soli-do to the extent of their proportionate fault. The court found Dennison and GEI-CO 35% proportionally at fault in causing the accident, and found Chaddrick and AG & L 65% proportionally at fault.

The court awarded Mareno $3,500.00 in general damages and $1,320.80 in property damages, plus court costs and interest. Further, the court awarded GEICO 65% of the $7,010.93 GEICO sought as reimbursement for property damages paid to or on behalf of Dennison, plus court costs and interest. Chaddrick and AG & L appeal.

EVIDENCE

The witnesses at trial were Mareno, Dennison, Chaddrick, and the sheriffs deputy who investigated the accident.

Rex Mareno testified he was driving westbound in the left-hand lane of U.S. Highway 61 at the speed limit, around fifty-five. There was a slight drizzle, but visibility was good. His truck was behind Dennison’s car and her car was following Chaddrick’s truck. However, Mareno never really noticed the truck in front until Dennison’s car hit it. Then he saw the truck “at the last split second.” He recalled seeing all three of the vehicles in the left-hand lane at the moment of the accident. He never saw any cars or the truck in the right-hand lane. He saw |5brake lights on Dennison’s car, but did not notice any lights on Chaddrick’s truck. He also remembers seeing the front quarter-panel of Chaddrick’s truck as it began to turn. He was unable to recall whether he noticed Dennison’s brake lights first or Chad-drick’s quarter-panel first. He recalled seeing them “close to simultaneous.”

Mareno said he veered right and was able to avoid the accident, but debris from the wreck hit his truck as he passed. As he veered right, his truck slid to the right onto the shoulder. He immediately turned the wheel to the left more and then his truck jolted, causing his body to jolt to the right also.

Kendra Dennison testified she was heading west on Airline Highway in St. John Parish. She said the weather was sunny and there was no rain until the accident happened. She estimated she was traveling about forty-five, but was unsure. She was in the right lane. There was a large white pickup truck in front of her in the right-hand lane. She did not notice any vehicle behind her. She saw the driver in the white truck put on his blinkers to turn right, so she moved over to the left-hand lane. In a “blink of an eye,” the truck turned left in front of her from the right-hand lane. She had no warning it was going to make a left turn. She never saw him make a signal for a left-hand turn. On cross-examination, she admitted the weather did not play any part in the accident.

Neley Chaddrick testified he was working in the Laplace area at the time and had a co-worker, Randy DeVille, in the truck with him that day. He was familiar with that stretch of highway because he had been traveling it every day he was on the job in Laplace. He said the sun was shining the day of the accident. He was driving in the left lane, coming back to his job site from a store. He denied ever being in the right lane at any time. He used his left-turn signal. He slowed down to make a left-hand turn, with his left-hand signal on, and he was hit from the rear.

| (¡Deputy Richard Hylander of the St. John the Baptist Parish Sheriffs Office testified he investigated the accident, but he did not see it happen. All he knew was what the drivers explained to him and what he discovered at the scene, and he had no recollection independent of his report. He said Dennison told him that the truck made a quick turn in front of her from the right lane of traffic and started making a left turn on Terre Haute Boulevard, but she could not stop in time because of the rain. He said Chaddrick told him that he was making a left turn with his left turn signal on, when he was struck from the rear by Dennison’s vehicle. Hy-lander said Mareno indicated he was unsure of who was in what lane.

In making her ruling, the trial judge noted that the witnesses gave three differing points of view as to how the accident happened. She found that all three parties testified consistently with what they told the police officer immediately after the accident. The judge had a problem with Chaddriek’s testimony, however, because he had a witness in the car with him the day of the accident, who could have corroborated everything Chaddrick said, but the witness was not at the trial to testify. The judge stated further:

[Bjased on the record, the evidence presented, and the testimony of the parties and credibility of the parties, the Court does find all the parties were credible in their assessment of the accident.
However, we have here Mr. Chad-drick and Miss Dennison who, although more seriously involved in the accident that happened here, neither of these two parties had too much of an idea that the accident was going to happen, it was so sudden. The one who saw it happen, was able to avoid it, was Mr. Mareno, and the Court finds that his testimony was credible as to what he saw and he had ample opportunity to prepare to meet the sudden emergency and ... to turn and avoid the accident. He was able to give it a lot of thought and he was able to expend some effort in doing so.
So, therefore, the Court finds that, based on everything I have before me, I’m going to find Miss Dennison thirty-five percent at fault, Mr. Chaddrick sixty-five percent at fault. I’m also going to find that as a |7result of this accident, and in avoidance of this accident, Mr. Mareno was injured and that his damages suffered total thirty-five hundred dollars in general pain and suffering, plus interest, costs, and property damage.

ISSUES

Appellants contend the trial court erred as a matter of law in failing to recognize and apply to Dennison the well-settled presumption of fault placed upon a rear-ending driver. Further, they assert the trial court committed clear and manifest error in allocating 65% fault to appellant, in light of the “clear and overwhelming” testimony and evidence confirming that Dennison simply rear-ended appellants’ vehicle when it slowed to make a left turn.

In response, Dennison and GEICO contend that' the trial court’s findings and allocation of fault were consistent with the evidence presented at trial and were based on the Court’s assessment of the credibility and accuracy of the witness testimony and the evidence submitted in support of that testimony.

Mareno supports Dennison’s position, asserting the trial court was not clearly wrong or manifestly erroneous in making a credibility call that favored Dennison’s version of events over Chaddriek’s.

LAW AND ANALYSIS

Louisiana places a statutory duty on drivers of following vehicles. “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.” La.R.S. 32:81(A).

When a following vehicle rear-ends a preceding automobile, the following driver is presumed at fault and must prove a lack of fault to avoid liability. Spiller v. Ekberg, 00-130, p. 4 (La.App. 5 Cir. 5/17/00), 762 So.2d 226, 228. He may do |sso by establishing that his vehicle was under control, that he closely observed the leading vehicle and followed at a safe distance under the circumstances. Id.

When a following motorist is suddenly confronted with an unanticipated hazard created by a forward vehicle that could not reasonably be avoided, however, the following driver will be adjudged free from fault for the ensuing rear-end accident. Orgeron v. Prescott, 93-926, pp. 8-9 (La.App. 5 Cir. 4/14/94), 636 So.2d 1033, 1040, writ denied 94-1895 (La.10/28/94), 644 So.2d 654. It is the unanticipated hazard which forms the foundation for the sudden emergency doctrine, such as a dog darting into the road. Id. However, the rule of sudden emergency cannot be invoked by one who has brought that emergency on himself by his own wrong or who has not used due care to avoid it. Id. The sudden emergency doctrine is applicable to the standard of conduct of a motorist after an emergency has arisen, but it does not apply to. lower the standard of care of motorists before the emergency occurs. Id. See also, Dick v. Phillips, 253 La. 366, 218 So.2d 299, 302 (1969).

To assess liability in an accident case, the trier of fact must compare the relative fault of the parties. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1985). The allocation of fault is a factual determination subject to the manifest error rule. Spiller, 00-130 at p. 5, 762 So.2d at 228.

In the matter before us, there is a clear conflict in the testimony of the parties regarding how the accident occurred:

Dennison claimed she was driving with Chaddrick in front of her in the right lane, and that she switched to the left lane because Chaddrick put on his right turn signal, but that he suddenly turned left from the right lane, going across the left lane in front of her.

| flChaddrick said he was driving in the left lane and was never in the right lane, that he used his left-turn signal, and that Dennison’s car struck his when he slowed to make the left turn.

Mareno testified he was driving in the left lane and that he saw no vehicles in the right lane. He saw brake lights on Denni-son’s car come on and also saw the quarter-panel of Chaddrick’s truck as it began to turn. He did not notice Chaddrick’s truck until the split-second before Denni-son’s car hit it. He said all three vehicles were in the left lane at the moment of the accident.

Mareno said there was a drizzling rain, but visibility was good. At the time of the accident, Dennison told Officer Hylander she was unable to stop because of the rain; at trial, however, she said the weather was sunny “until the accident happened,” although she later admitted the weather did not play a part in the accident. Chaddrick said it was sunny and there was no rain.

The investigating sheriffs deputy did not witness the accident; hence, his report simply related what the parties told him.

The trial court was presented with conflicting testimony regarding the location of Chaddrick’s vehicle. Chaddrick testified that at the time of the accident, he was attempting to make a left turn from the left lane, while Dennison testified that Chaddrick improperly and suddenly attempted to make a left turn from the right lane in front of her vehicle. The testimony of Mareno, driver of the third vehicle involved in the accident, does not conflict with the testimony of either witness, because he did not see the Chaddrick vehicle until the accident occurred.

The trial court obviously chose to believe Dennison’s testimony that Chaddrick made an improper turn. This credibility determination is supported by the record. Further, the trial court was aware of the argument regarding the | inpresumption applicable in rear-end collisions — the court denied Chaddrick’s motion for involuntary dismissal based on the presumption.

The trial court evidently concluded that Dennison met her burden of proving that the Chaddrick vehicle created an unanticipated hazard that relieved her of at least some of the liability created by the presumption.

In addition, according to Dennison’s un-controverted testimony, her vehicle did not strike Chaddrick’s vehicle directly from the rear; rather, the impact occurred on the driver’s side of the Chaddrick vehicle. The witness referred to photographs of the two vehicles that were admitted into evidence to support this testimony. The exhibit folder referred to in the record was not part of the record lodged with this Court, however, and we do not have the benefit of the photographs viewed by the trial court. In any event, the photographs apparently support Dennison’s version of the accident.

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on review, even though the reviewing court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be resolved by the reviewing court is not whether the factfinder was right or -wrong, but whether its conclusion was a reasonable one. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Further, when two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Under the circumstances here, we cannot say that the trial judge’s factual findings on the allocation of fault were either unreasonable or clearly wrong.

We acknowledge the trial court committed legal error in applying an adverse presumption against Chaddrick because he did not subpoena the passenger in his Intruck to testify. Chaddrick said that Randy DeVille was no longer working for WHC at the time of trial and Chad-drick did not know where he was. In such case, DeVille was equally available — or unavailable — to both parties and, hence, no adverse presumption should have been applied.

Nevertheless, changing the application of the adverse presumption does not change our evaluation of the other conclusions of the district court.

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED.

      . Some of the pleadings in the record set out GEICO's Ml name as “Government Employees Insurance Company.” However, the trial court’s judgment and GEICO’s appellate brief both refer to it as “GEICO General Insurance Company,” so we use that designation.

      . Appellants do not contest the amounts of the monetary awards.

      . The general rule as to unproduced witnesses is that where a party having control of an available material witness fails to call that witness, an inference may be drawn that that testimony would have been adverse to the party. Cooper v. Diamond Offshore Drilling, Inc., 96-924, p. 9 (La.App. 5 Cir. 3/25/97), 692 So.2d 1213, 1217. That inference should not be made, however, where the witness is equally available to both parties. Id.


author: | .WALTER J. ROTHSCHILD, Judge.

text:
    Howard KRAEMER, III v. Wayne JOSEPH, Deatrice Gauff and her Liability Insurance Carrier, U.S. Agencies Casualty Insurance Company.
    No. 04-CA-270.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      Daniel E. Becnel, III, Laplace, LA, for Plaintiff/Appellant.
    Joseph R. McMahon, III, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | .WALTER J. ROTHSCHILD, Judge.

Following a bench trial in this automobile accident case, the trial court ruled in favor of defendant, U.S. Agencies, dismissing the petition of plaintiff, Howard Kramer, III. Plaintiff now appeals from this judgment. For the reasons stated herein, we affirm.

Facts

Plaintiff, Howard Kramer, III, was involved in a vehicular collision with a car being driven by defendant, Wayne Joseph. Plaintiff sustained severe injuries in this accident, and brought the instant personal injury suit against Joseph, Dea-trice Gauff, the owner of the vehicle, and U.S. Agencies Casualty Insurance Company, the insurer of the vehicle. U.S. Agencies answered the petition denying any negligence of its insured and further averring that the accident was caused by the fault of plaintiff. Subsequently, defendants U.S. Agencies and Deatrice Gauff filed a reeonventional and third party demand against plaintiff and his insurer State Farm Mutual | ¡¡Automobile Insur-anee Company for the property damages sustained to Gauff s vehicle.

This matter was tried on January 27, 2003. At trial, plaintiff testified that he was driving his vehicle westbound on River Road in St. John Parish at approximately 3:00 a.m. on September 1, 2001. Plaintiffs wife was riding as a passenger in the vehicle and the couple was returning home after an evening at a local lounge. Plaintiff stated that he had one or two alcoholic drinks during the four or five hours he was at the lounge. Plaintiff stated that on the ride home, he and his wife were talking and he passed up the turn to their house. After driving for about one mile, plaintiff stated he pulled over into a parking lot to continue the conversation. He stated that after a few minutes, they decided to go home and plaintiff turned around in the parking lot and drove back onto River Road in an eastbound direction. Plaintiff then proceeded eastbound on River Road. Plaintiff stated that seconds later, a vehicle being driven by defendant traveled into the eastbound lane of travel and struck his vehicle. In conjunction with his testimony, plaintiff submitted copies of his medical records and well as photographs of his vehicle after the accident.

Defendants, Wayne Joseph and Deatrice Gauff, did not testify at trial. However, defendant U.S. Agencies submitted the trial testimony of Kelly Haddad, a claims manager in their litigation section. Ms. Haddad stated that U.S. Agencies made a payment for the property damage on the vehicle owned by Deatrice Gauff in the amount of approximately $10,000. Ms. Haddad also stated that in conjunction with this claim, she had the opportunity to review the medical records of Howard Kramer. She stated that these records indicate that a blood sample was drawn from plaintiff at pthe hospital at 4:00 a.m. on the date of the accident which showed a blood alcohol level of 0.14.

Defendant also submitted the deposition testimony of plaintiffs estranged wife, Elizabeth Champagne, and the deposition of Roy Ingolia, the state trooper who responded on the night of the accident. Ms. Champagne testified that on September 1, 2001, she was a passenger in a vehicle driven by her husband, Howard Kramer. She stated that she and her husband had been at a bar for four or five hours prior to the accident and that her husband had consumed five or six beers during this time period. She stated that she and her husband were arguing on the way home from the bar because she did not want to leave. Her husband passed up the turn for their house and pulled over in a parking lot to talk. After a few minutes, her husband began driving again in a westbound direction and another vehicle crossed into their lane of travel, striking her husband’s vehicle.

Trooper Ingolia testified that he responded to the accident in question during the early morning hours of September 1, 2001. Trooper Ingolia referred to the police report he prepared for this incident and stated that after an investigation of the accident scene, he found Mr. Kramer to be at fault in this accident. The information the trooper gathered indicated that the Joseph vehicle was traveling westbound on River Road behind the vehicle being driven by Mr. Kramer. According to Mr. Joseph, Mr. Kramer pulled over into the parking lot and then attempted to enter the roadway by making a U-turn and travel eastbound. Trooper Ingolia was unable to speak to Mr. Kramer before he was transported to the hospital, but he concluded that the accident occurred in the westbound lane of traffic when Mr. Kramer pulled his vehicle directly into the path of the Joseph vehicle. Trooper Ingolia also identified photographs of the vehicle which indicate that damage to | Beach vehicle, and he testified that the extent and nature of the damage led him to conclude that the accident occurred when Mr. Kramer pulled into the westbound lane traveled by Mr. Joseph. Trooper Ingolia also testified that he visited Mr. Kramer in the hospital after the accident and found him to smell of alcohol and to have slurred speech.

On cross-examination, Trooper Ingolia stated that he performed a blood alcohol test on Mr. Kramer at 5:45 a.m. which indicated a blood alcohol level of .04, which Trooper Ingolia acknowledged was not above the legal limit. Although he arrested Mr. Kramer for DWI, he was aware that the district attorney had dismissed these charges against Mr. Kramer.

Following trial, the trial court took the matter under advisement. By judgment rendered on May 30, 2008, the trial court granted judgment in favor of defendant U.S. Agencies, dismissing plaintiffs petition at this cost. In its reasons for judgment, the trial court found the testimony was both confusing and conflicting. The trial court noted that the photographs depicting damage to the vehicles involved in this accident supported the version of the accident given by Trooper Ingolia, rather than the version of the accident given by plaintiff. Based on this determination, the trial court found that plaintiff failed to carry his burden of proof by a preponderance of the evidence. Plaintiff now appeals this judgment on the basis of four assignments of error.

Discussion

By his first two assignments of error, plaintiff contends that the trial court erred in disregarding his uncontroverted testimony, when the defendant did not appear at trial to offer contradictory testimony as to the facts of the accident. Plaintiff contends that the trial court’s | ¡¡misinterpretation of the facts in this case require a de novo review by this court.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even if the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Id. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Id. Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits. Id.

The reviewing court must always keep in mind that if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even if convinced that if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). In the present case, we have reviewed the entire record and exhibits, and we fail to find that the trial court’s credibility determinations in this case are manifestly erroneous.

While the record in this case indicates that defendants did not appear or testify at trial, the record nevertheless contains evidence which contradicts plaintiffs version of how the accident occurred. Trooper Ingolia testified that during his investigation of this accident, he spoke to the driver 17of the second vehicle involved, Wayne Joseph. He stated that based on his experience investigating accidents, he found that Mr. Joseph’s version of the accident was more likely based on evidence from the accident scene and he placed fault in the accident on plaintiff. Further, the photographs contained in the record depicting damage to the vehicles fail to support plaintiffs version of how the accident occurred. The damage to plaintiffs vehicle is on the front and driver’s side door, and the damage to defendant’s vehicle is on the front end, but primarily on the right side. The damage to the vehicles is not consistent with plaintiffs version that the Joseph vehicle traveled into the lane occupied by plaintiff. Rather, the photographs support a finding that plaintiff turned out of the lot in front of the Joseph vehicle as suggested by Trooper Ingolia.

Our review of the record indicates that the trial court was presented with conflicting versions of how the accident occurred, and the trial court made a factual determination to reject plaintiffs testimony based on other evidence in the record. We fail to find this credibility determination to be manifestly erroneous and therefore no de novo review is required.

Plaintiff next contends that the trial court erred in allowing Kelly Haddad, the claims adjuster, to present facts and laboratory evidence which were not within her first hand knowledge. The record indicates that Ms. Haddad testified as to the contents of her file involving plaintiffs claims against the insurer. Although she testified as to the results of a blood test performed on plaintiff on the date of the accident, she did not comment on whether such results constituted a violation of the law. Further, the trial court did not reach its conclusion of fault based on a finding that plaintiff was intoxicated at the time of the accident. We find no error of the trial court in allowing the testimony by this witness.

| sFinally, plaintiff contends that the trial court erred in allowing the police officer in this case to give expert testimony in violation of La. C.E. art. 701. Trooper Ingolia testified as to his investigation of the accident in question. He stated that he spoke to one of the drivers involved, and that he assessed the physical evidence at the scene. Although he reached a conclusion based on this investigation as to who he believed was at fault in the accident, this opinion was rationally based on the perception of the witness and did not constitute impermissible expert testimony. La. C.E. art. 701. Further, the trial court found that Trooper Ingolia’s deposition testimony offered little to assist the court’s consideration on the issue of how the accident occurred. Rather, the trial court relied on the photographs which depicted the damage to the vehicle in making its factual determination of how the accident occurred. Under these circumstances, we fail to find that the trial court committed error in allowing the testimony of Trooper Ingolia as to the cause of the accident in this case.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Appellant shall bear all costs of this appeal.

AFFIRMED.


author: LED WARD A. DUFRESNE, JR., chief judge.

text:
    STATE of Louisiana v. Wyman D. QUINN.
    No. 04-KA-458.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Cameron M. Mary, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, LA, for Plain-fifi/Appellee.

      Prentice E. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES E. CANNELLA and THOMAS F. DALEY.
   LED WARD A. DUFRESNE, JR., chief judge.

On appeal, defendant, Wyman Quinn, challenges the trial court’s denial of his motion to suppress evidence. For the reasons which follow, we find no error in the denial of the motion and accordingly, affirm defendánt’s conviction and sentence.

The Jefferson Parish District Attorney filed a bill of information charging defendant with possession of marijuana, second offense, in violation of LSA-R.S. 40:966(C). At the arraignment, defendant pled not guilty and thereafter filed various pretrial motions, including a motion to suppress evidence. After a hearing, the trial judge denied defendant’s motion to suppress. Defendant then withdrew his plea of not guilty, and after being advised of his constitutional rights, pled guilty as charged. In accordance with the plea agreement, the trial court sentenced defendant to imprisonment at hard labor for two years to run concurrently with any other sentence. Defendant now appeals, challenging the trial court’s denial of the motion to suppress evidence.

At the suppression hearing, Deputy Elvin Módica of the Jefferson Parish Sheriffs Office, testified as to the circumstances surrounding the stop of defendant and the seizure of the evidence. He testified that on November 22, 2002, he and his partner, Deputy Lonnie Senior, were on patrol in an area known for high crime Land drug transactions. At that time, the deputies, driving in an unmarked Crown Victoria with a light on the dashboard, observed defendant and another man standing on the corner conversing. As the officers drove down the street, the two men appeared nervous and startled. Deputy Módica was approximately 50 feet away when defendant looked and made eye contact. Deputy Módica explained that the casual conversation between defendant and the other man stopped, and that defendant “kind of froze up, eyes wide, and started to fidget a little bit_” Defendant subsequently turned and walked away from the other man and made another turn up a driveway. Defendant looked back at the deputies several times while he was walking away. As a result, Deputy Módica pulled into the parking lot to investigate further. As he did so, defendant began to run. At that point, the deputies pursued defendant and stopped him. At the suppression hearing, Deputy Módica testified-that prior to stopping defendant, he did not, at any time, turn on the lights or order defendant to stop, nor did he have his gun drawn.

While speaking with defendant, Deputy Módica noticed that he was mumbling and observed a clear plastic bag containing something green in his mouth. Based on his experience, Deputy Módica believed the substance to be marijuana and asked defendant to spit out what was in his mouth. As a result of this incident, defendant was arrested.

During his testimony at the suppression hearing, Deputy Módica, a six year veteran who made at least 100 drug arrests during his career, stated that he stopped defendant based on the totality of the circumstances. He specifically pointed to the following factors as the basis for stopping defendant: the area where the incident occurred, the actions being consistent with narcotics dealers, the unprovoked reaction to the police presence, defendant’s constant eye contact, his body language, and his flight from police.

| ¿After considering the evidence presented at the suppression hearing, the trial judge denied the motion to suppress, finding that the totality of the circumstances provided the officers with reasonable suspicion to stop defendant. Defendant now appeals this denial, contending that the evidence should have been suppressed because the police officers stopped him without reasonable suspicion. To support this argument, defendant points to the fact that the officers did not observe any criminal activity in progress, including any hand-to-hand transactions, nor did they witness defendant or the other individual holding or carrying any suspicious objects. We find no merit to defendant’s argument.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal activity is recognized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal activity. Reasonable suspicion is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Belton, 441 So.2d at 1198; State v. Hughes, 02-11 (La.App. 5 Cir. 5/29/02), 821 So.2d 491, 494.

When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, giving | ¡¡deference to the inferences and deductions of a trained police officer. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049. Flight from a police officer, by itself, does not provide sufficient justification for an investigatory stop. It is, however, highly suspicious, and may be one of the factors leading to a finding of reasonable suspicion. The reputation of an area as one of high crime is another articulable fact upon which an officer may legitimately rely in formulating reasonable suspicion for an investigatory stop. State v. Duckett, 99-314 (La.App. 5 Cir. 7/27/99), 740 So.2d 227, 230.

This court has found that presence in a high crime area, coupled with nervousness, startled behavior, flight or suspicious actions upon the approach of officers, is sufficient to justify an investigatory stop. State v. Hughes, 821 So.2d at 495; State v. Barney, 97-777 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207.

The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Flagg, 01-65 (La.App. 5 Cir. 7/30/01), 792 So.2d 133, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159. We find that the testimony presented at the suppression hearing supports the trial court’s denial of defendant’s motion to ■ suppress. The defendant’s flight after the officers pulled into the parking lot, along with defendant’s presence in an area known for high crime and drug transactions, his nervousness, his startled look at the sight of the officers, and his walking away and repeatedly looking back at the officers prior to his flight, gave the police officers reasonable suspicion to justify the subsequent stop of defendant. Accordingly, we find no error in the trial court’s denial of defendant’s motion to suppress evidence.

IfiWe have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920: State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors which require corrective action.

For the reasons set' forth herein, we hereby affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Defendant entered his plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), thereby reserving his right to appeal the denial of his motion to suppress.


author: I «WALTER J. ROTHSCHILD, Judge.

text:
    Peggy W. HYLAND v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Byron E. Talbot Contractor, Inc. and Herman R. Antill.
    No. 04-CA-305.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.

      David W. Bernberg, New Orleans, LA, for Plaintiff/Appellant.
    Christopher H. Riviere, Nicholas J. Ze-ringue, Thibodaux, LA, for Defendant/Ap-pellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   I «WALTER J. ROTHSCHILD, Judge.

This case arises from a motor vehicle accident that occurred on November 29, 1999. In her Petition for Damages, the plaintiff, Peggy Hyland, asserts that she was operating her vehicle in an easterly direction on Lapalco Boulevard in Jefferson Parish when a vehicle owned by Byron E. Talbot Contractor, Inc. (BETC) and operated by one of BETC’s employees, Herman Antill, made an illegal lane change and struck the plaintiffs vehicle, causing personal injuries and property damage to Ms. Hyland. The petition names three defendants: Byron E. Talbot Contractor, Inc.; Herman R. Antill; and American Guarantee and Liability Insurance Company, as the liability insurer of BETC and Mr. Antill.

Trial of this matter was held on January 21, 2004. Three witnesses testified in court: Herman Antill, Peggy Hyland, and Dr. Michael McSween. In addition, the depositions of Drs. Puente and Yogel, Ms. Hyland’s medical records and bills, and the entire record of the proceedings were admitted into evidence.

| a At trial, Herman Antill testified that he has been employed by BETC as a truck driver for approximately 19 years, and he was working when this accident occurred. He stated that he was driving a truck and trailer, which he described as “like an eighteen wheeler,” and was traveling in an easterly direction behind a school bus on Lapalco Blvd. Originally, he was in the right lane on Lapalco and there were two lanes proceeding in this direction. However, when Lapalco crosses the Harvey Canal, it turns into three lanes and he was then driving in the middle lane. After crossing Bellemeade, he knew that he had to get in the right lane to go south on Belle Chasse Highway, so he put on his signal light and started crossing into the right lane. When his truck was almost into the right lane, he felt a “bump” and noticed that Ms. Hyland had pulled out from Bellemeade onto Lapalco and struck his vehicle.

Mr. Antill testified that there is a stop sign for traffic on Bellemeade at its intersection with Lapalco, but there is no traffic light or stop sign for the traffic proceeding on Lapalco past Bellemeade, which is the direction he was traveling. He stated that the portion of his vehicle involved in the accident was “from middle way of the trailer to the back end,” but there was no damage to his vehicle. On Ms. Hyland’s vehicle, the front fender to the middle of the driver’s door was impacted. Mr. Antill stated that his trailer was “almost in her lane” when “she slid into the trailer,” which pushed her car to the side.

Peggy Hyland testified that she is 66 years old and she cleans houses for a living. On the day of the accident, she had just finished cleaning a house and had cashed her paycheck at a bank in her neighborhood. She stopped at a stop sign on Bellemeade at its intersection with La-palco, and she saw a school bus and the truck driven by Mr. Antill in the middle lane on Lapalco. She then pulled into the right lane and drove approximately three car-lengths before the accident occurred. She heard “bam, bam, bam,” and then stopped her car. She testified that she was Incompletely in the right lane when the accident occurred, and Mr. Antill cut into her lane and caused thé accident when he was passing the school bus on the right-hand side. She indicated that Mr. Antill did not put on his turn signal before moving into her lane. The left-side back door, front door, mirror, and bumper on her vehicle had to be replaced.

Ms. Hyland admitted that there was a stop sign at the intersection of Bellemeade and Lapalco and that she was required to yield to oncoming traffic. However, she stated that the right lane was clear when she pulled out, and the school bus and the truck were in the middle lane. She stated that the truck was not almost finished changing lanes at the time of the accident.

The final witness, Dr. Michael McSween, was accepted as an expert in the field of family medicine. He testified primarily about injuries that Ms. Hyland indicated were caused by the accident and her treatment.

At the conclusion of the trial, the trial judge found that the plaintiff had not proven by a preponderance of the evidence that Mr. Antill was at fault in the accident or that the defendants were liable for any of her damages. Accordingly, the trial judge rendered a judgment in favor of the defendants, dismissing them from this lawsuit. It is from this judgment that the plaintiff, Ms. Hyland, appeals.

DISCUSSION

In her first assignment of error, Ms. Hyland contends that “[t]he trial court committed reversible error in failing to ascertain percentage fault on behalf of the parties and to apportion fault accordingly.” She argues that the testimony clearly shows that both parties were at fault and the trial judge should have assessed percentages of comparative fault to each driver. The defendants respond that the trial judge correctly declined to apportion fault in this matter, because the plaintiff failed to carry her burden of proving liability of the defendants by a preponderance of the evidence.

|ñAt the conclusion of the trial, the trial judge stated in pertinent part:

I have two different stories, two witnesses, both of whom are credible. They each saw what they saw, and while it is different, I don’t know whose fault it is. And when I don’t know whose fault it is, or I have to flip a coin, which is what I am at this point in time, then the plaintiff has not proven their case; so I am going to find for the defendants, that liability has not been proven by the plaintiffs.

A plaintiff seeking damages must prove by a preponderance of the evidence that the defendant caused his injuries. James v. McHenry, 36098 (La.App. 2 Cir. 9/18/02), 828 So.2d 94, 95. Proof by a preponderance of the evidence means that the fact or cause sought to be proved is more probable than not. Id.; Johnson v. Lee, 00-78 (La.App. 5 Cir. 5/30/00), 760 So.2d 1273, 1277. If the party bearing the burden of proof fails to satisfy her burden by a preponderance of the evidence, her case fails to outweigh her adversary’s case and she necessarily loses. Hill v. Hutto, 33,583 (La.App. 2 Cir. 6/21/00), 764 So.2d 1169, 1171, writ denied, 00-2192 (La.10/13/00), 771 So.2d 651.

A court of appeal may not set aside a trial court’s factual findings in the absence of manifest error, which gives great deference to the trier of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989); Bender v. Cron, 01-899 (La.App. 5 Cir. 12/12/01), 806 So.2d 714, 718, writ denied, 02-0133 (La.3/22/02), 811 So.2d 938. Thus, the trial court’s conclusion that Ms. Hyland failed to put on sufficient evidence to prove her case by a preponderance of the evidence is entitled to great deference. Under the manifest error standard, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even if the appellate court may feel its inferences are as reasonable. Evans v. State Farm Mutual Automobile Insurance Co., 03-1003 (La.App. 5 Cir. 12/30/03), 865 So.2d 195, 197.

Mr. Antill testified that when he was almost into the right lane, Ms. Hyland’s vehicle, “slid into the trailer,” and he contends that the accident was | caused by Ms. Hyland’s negligence. Ms. Hyland testified that Mr. Antill cut into her lane when he was passing the school bus on the right-hand side, and she asserts that the accident was primarily caused by Mr. An-till’s negligence.

The trial judge’s oral reasons for judgment reveal that she did not find either party more credible than the other, and the testimony of the opposing parties was essentially balanced. Thus, the trial court found that the plaintiff did not prove that it was more probable than not that Mr. Antill was at fault in the accident, and the plaintiff simply failed to prove her case by a preponderance of the evidence. After reviewing the entire record, we cannot say that the trial judge was manifestly erroneous or clearly wrong in finding that the plaintiff failed to satisfy her burden of proving that Mr. Antill was at fault or liable in this accident. Accordingly, the trial court did not err in failing to assess percentages of fault to each party, and this assignment of error is without merit.

In her second and final assignment of error, Ms. Hyland asserts that the trial court “committed reversible error in admitting the police report.” She argues that her attorney objected to the admissibility of the police report, and it was hearsay because,the police officer was unable to testify regarding its contents. The defendants respond that the trial court did not err in admitting the police report, because the plaintiffs attorney did not timely object to its admissibility.

The record reveals that at the beginning of the trial and prior to any testimony, several exhibits were offered and admitted. The defense attorney stated, “I’d like to introduce the record and have it — admitted into evidence.” The trial judge responded, “[a]ll right. The entire record’s admitted.” No objection was made by the plaintiff at this time.

During cross-examination of Ms. Hy-land, the defendant’s attorney questioned her regarding whether or not she received a citation in the accident, and she replied that she did not receive a citation. The defendant’s attorney then |7attempted to show her the police report from the accident, and the plaintiffs attorney objected, asserting that the report was inadmissible hearsay. However, after discussing the matter and determining that the police report had already been admitted into evidence without objection when the entire record was admitted, the trial judge overruled the plaintiffs objection.

LSA-C.E. art. 103 provides in pertinent part:

A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
1. Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection;

(Emphasis added.)

The record shows that when the defendants’ attorney offered the entire record, which contained the police report, into evidence, there was no objection by the plaintiff. The failure to make a contemporaneous objection to the admission of evidence waives the right of a party to complain that the evidence was improperly admitted. Karagiannopoulos v. State Farm Fire and Casualty Co., 94-1048 (La.App. 5 Cir. 11/10/99), 752 So.2d 202, 208, writ denied, 99-2866 (La.12/10/99), 752 So.2d 165; Davis v. Kreutzer, 93-1498 (La.App. 4 Cir. 2/25/94), 633 So.2d 796, 803, writ denied, 94-0733 (La.5/6/94), 637 So.2d 1050. It was not until the middle of trial, during cross-examination of Ms. Hyland, that the plaintiffs attorney objected to the admissibility of the report, but the police report had already been admitted into evidence.

Based on our review of the record, we find that the plaintiffs objection to the admissibility of the report was not timely, and she has waived her right to complain on appeal that this evidence was improperly admitted. Accordingly, we decline to consider whether or not the police report should have been admitted, because the plaintiff failed to contemporaneously object to its admission.

| ¡¡DECREE

For the reasons set forth above, we affirm the trial court’s judgment in favor of the defendants, dismissing the plaintiffs claims against them. All costs of this appeal are to be borne by the plaintiff, Peggy Hyland.

AFFIRMED.

      . The Petition for Damages was originally filed in the Second Parish Court for the Parish of Jefferson on November 17, 2000. However, the case was transferred to the 24th Judicial District Court on August 15, 2002 on the plaintiff’s motion, due to the plaintiff's assertion that her general damages were in excess of the jurisdictional limits for Second Parish Court.


author: | {.WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Flossie WILLIAMS.
    No. 04-KA-53.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 28, 2004.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/Appel-lee.
    Jane L. Beebe, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | {.WALTER J. ROTHSCHILD, Judge.

STATEMENT OF THE CASE

On January 27, 2003, the Jefferson Parish District Attorney’s Office filed a bill of information charging the defendant, Flossie Williams, with theft of goods valued between $100 and $500, a violation of LSA-R.S. 14:67.10. The defendant was arraigned on January 28, 2003, and pled not guilty. On January 29, 2003, the defendant filed an omnibus motion. On July 29, 2003, before trial on the same day, the trial court held a hearing on the Motion to Suppress Identification and denied the motion.

The defendant was tried by a six-member jury on July 29, 2003, and the jury returned a verdict of guilty as charged. On August 7, 2003, the trial court sentenced the defendant to two years at hard labor with credit for time served. On the same day, the State orally noted its intent to file a multiple bill, and the defendant noted her intent to file an appeal. On August 8, 2003, the defendant |3filed a Motion to Reconsider Sentence, which was denied by the trial court on September 4, 2003.

The State filed a multiple offender bill of .information on August 7, 2003, alleging the defendant to be a fourth felony offender. On May 13, 2004, after a hearing on the multiple offender bill, the trial court vacated its original sentence and re-sentenced the defendant to four years at hard labor with credit for time served. The trial court ordered the sentence to be served without benefit of probation or suspension of sentence. The defendant’s habitual offender finding and sentence are not before this Court in the present appeal, since they occurred after this appeal was instituted.

FACTS

Janelle Ogden testified that on January 13, 2003, she was working as a cashier/manager at Academy Sports on the Westbank Expressway in Jefferson Parish. Ogden testified that she was at the service desk located in the front of the store when she saw a person, whom she later identified as the defendant, put some watches into a metal pot that she was holding. She then started coming toward the front doors. The defendant had to pass the cash registers to get to the entrance door, but she did not try to pay for the items. Ogden called her manager to come to the front of the store. She also called the police and gave them a description of the defendant.

The defendant tried to exit through the entrance door, but it would not open from the inside of the store. She then left the store through the exit door and was stopped in the foyer by the manager and Ogden. She had the store property with her, so Ogden asked the defendant if she wanted to pay for the items. The defendant replied that she was waiting for someone to come in the store. Soon |4afterwards, she dropped the pot and ran out the door. The defendant ran out to the right of the building in the direction of Casey Jones Supermarket, wearing a blue coat with a “black patch or something” on the sleeves and a pair of shoes that were store property.

Within approximately two minutes, the police apprehended the defendant and brought her back to Academy Sports, where Ogden identified her. Ogden testified that there was no doubt in her mind that she was the same person whom she observed in the store, confronted in the store, and who ran from the store. She also identified the defendant in court as same person. Ogden reviewed State’s Exhibits One through Nine, which show the items taken by the defendant. She testified that the value of the property taken by the defendant totaled over $400.

Sergeant J.R. Rogers of the Gretna Police Department testified that, on January 13, 2003, he was working a special assignment or “detail” at Westside Shopping Center in which Academy Sporting Goods is located. He heard a call for service on his police radio involving shoplifting at Academy Sports. The person was described as a black female wearing a green, black and tan jacket and tan pants running toward Casey Jones. He found the person, whom he later identified as the defendant, running toward Casey Jones Supermarket. As the defendant put her hands on Sgt. Rogers’ car, Detective Wayne Williams arrived to take over the scene. Sgt. Rogers made an in-court identification of the defendant as the person whom he stopped.

Detective Wayne Williams of the Gretna Police Department testified that, on January 13, 2003, he responded to a service call involving a shoplifting from Academy Sporting Goods. The person involved was described as a black female wearing tan pants and a green, black and tan jacket, a winter jacket, fleeing west from the store toward Casey Jones. When he reached the location, he saw that Sgt. Rogers had someone stopped by his vehicle who fit the description. Detective |sWilliams placed the person, whom he later identified as the defendant, in the rear of his police unit and took her to Academy Sports, where Ogden positively identified her as the person who had just run from the store.

Detective Williams placed the defendant under arrest, and he handcuffed and searched her. The search revealed that the defendant had no money, but was wearing a brand new pair of shoes and a jacket, and had a similar jacket stuffed underneath the one she was wearing. According to Ogden, the shoes and jackets belonged to Academy Sports. Detective Williams testified that the total value of the stolen goods, including the items that she left at the door, was approximately $485. Detective Williams made an in-court identification of the defendant as the person whom he apprehended and brought back to the store, where she was positively identified.

DISCUSSION

In her sole assignment of error, the defendant argues that the trial court erred when it imposed the maximum sentence, because it is unconstitutionally excessive. The defendant does not challenge the validity of her conviction for theft of goods valued over $100 but less than $500.

The defendant was originally sentenced to two years at hard labor with credit for time served. LSA-R.S. 14:67.10(B)(2). The trial court stated that it was imposing the maximum sentence. On May 18, 2004, after a hearing on the multiple offender bill, the trial court vacated its original sentence and re-sentenced the defendant to four years at hard labor.

The defendant’s only argument on appeal is that her two-year sentence is excessive. However, this sentence was vacated by the trial court after the defendant was found to be a multiple offender. Accordingly, the defendant’s sole 1 fiassignment of error is moot. Any claims involving the defendant’s habitual offender sentencing must be addressed in a separate appeal. See State v. Parker, 00-1365, (La.App. 5 Cir. 1/30/01), 778 So.2d 1167, 1168-69, unit denied, 01-0615 (La.2/22/02), 809 So.2d 981.

The defendant requests an error patent review. Accordingly, the record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review of the record did not reveal any errors patent that require corrective action by this Court.

DECREE

For the reasons set forth above, we affirm the defendant’s conviction for theft of goods having a value of $100 or more, but less than $500. We did not consider the defendant’s argument that her original two-year sentence was excessive, because this sentence has been vacated, and this argument is now moot.

AFFIRMED.

      . The omnibus motion included a motion to suppress confession, identification and physical evidence, a motion for discovery and inspection, and a motion for preliminary examination.

      . The record was supplemented with the habitual offender commitment, which indicates that the defendant was sentenced under the multiple bill statute, LSA-R.S. 15:529.1, but it does not contain a transcript of the multiple offender proceedings and it does not indicate whether the defendant was sentenced as a second or third offender. However, the commitment indicates that the State struck one of the prior offenses from the multiple bill. Accordingly, it appears that the defendant was sentenced as a third felony offender.

      . LSA-R.S. 14:67.10(B)(2) states in pertinent part: "When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years or may be fined not more than two thousand dollars, or both.” Accordingly, the maximum sentence would actually have been a sentence of two years and a fine of $2000.