author: JjDENNIS R. BAGNERIS, SR., Judge. | j MURRAY, J.,

text:
    ALLIED SHIPYARD, INC. v. Stephen D. EDGETT, Marilyn Schwab Edgett and Lauren L. Edgett.
    No. 2003-CA-1315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Lee A. Calíais, Lee A. Calíais, A P.L.C., Larose, LA, for Plaintiff/Appellant.
    Mark S. Goldstein, Alicia M. Bendana, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS SR., and Judge TERRI F. LOVE).
   JjDENNIS R. BAGNERIS, SR., Judge.

In this revocatory action, Allied Ship-yard, Inc. (“Allied”) appeals a trial court’s judgment sustaining the exception of prescription filed by Stephen D. Edgett, Marilyn S. Edgett, and Lauren L. Edgett, (“Edgetts”), that resulted in the dismissal of the lawsuit. We affirm.

STATEMENT OF THE CASE

In May 1999, Stephen D. Edgett signed a personal guaranty with regard to a contract between Allied Shipyard, and Ed-gett’s employer, Marsh Venture, L.L.C. On January 10, 2000 Allied Shipyard filed a lawsuit against Stephen D. Edgett and other parties, to enforce the contract. Allied Shipyard obtained a money judgment on September 17, 2002.

On April 10, 2001, Stephen D. Edgett and his wife, Marilyn S. Edgett, made a gratuitous donation of their home to their daughter, Lauren L. Edgett. The donation was recorded in the public record on April 16, 2001. In December 2002, Allied Shipyard learned of the donation. On December 18, 2002, Allied Shipyard 1 ¡filed a revocatory action to set aside the donation. Allied alleged that this donation either caused or increased the insolvency the Ed-getts. In response to the revocatory action the Edgetts filed an exception of prescription.

On March 14, 2003, the trial court conducted a hearing on the exception of prescription filed by the Edgetts. The trial court ruled in favor of the Edgetts and dismissed Allied Shipyard’s revocatory action.

LAW AND ANALYSIS

LSA-C.C. article 2041 as amended in 1984 states:

The action of the obligee must be brought within one year from the time he learned or should have learned of the act, or the result of the failure to act, of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result.

Although the article clearly expresses that a revocatory action “must be brought within one year from the time [the creditor] learned or should have learned of the act,” La.C.C. art. 2041 the article’s revision comments suggest “the prescriptive period should be one year from the day the ... [creditor] learned of the harm.” Revision Comment (a), La.C.C. art. 2041

Noting this inconsistency and the article’s purpose, as expressed in the revision comments, the court in First Federal Savings & Loan Ass’n of Lake Charles v. Jones, 620 So.2d 408 (La.App. 3 Cir.1993), said:

“La.C.C. art. 2041 is found in Chapter 12, Book III of the Louisiana Civil Code, entitled Revocatory Action and Oblique Action. Section 12 of that chapter deals with the revocatory action and begins with Article 2036, which states in pertinent part: ‘An obligee has a right to annul an act of the obligor ... that causes |3or increases the obligor’s insolvency’. The comments to that article explain that the article ‘substitutes an act of the obligor that causes or increases his insolvency for the notion of an act [of] fraud’ contained in the source articles. The comments also inform us that the source of the revocatory action can be traced back to the Roman Paulian action.

An in depth discussion of the Paulian or revocatory action can be found in Planiol, Traite’ Elementaire De Droit Civil, Vol. 2, Part 1 at 168-185, wherein, in pertinent part, Planiol explains:

300. Formulation of the Rule
The only acts which can give rise to a revocation upon the demand of creditors, given the proper case, are those by which the debtor has impoverished himself; ...
310. In What Does Damage Consist The damage is the determining cause of the action. It consists in the fact that the act of the debtor brings about his insolvency, or augments a pre-existing insolvency. As a consequence, in order for the revocatory action to be possible it is necessary that the act be with reference to property subject to seizure by the creditors, and that it form part of their common pledge....
311. Proof of Damage
Such proof is a condition to the exercise of the revocatory action. It is easy to furnish if the creditors have already ‘discussed,’ that is, seized and sold the property of the debtor; if the price is not sufficient to satisfy all, the damage is not only demonstrated, but has also materialized .... (Footnote omitted)

While the modern Civil Code articles have deleted the word ‘fraud’ from their texts, they still embody the principles enunciated by and rooted in the Paulian action.

|/Thus, tracing the Louisiana revocatory action’s origin to the Roman Paulian action, the majority in Jones held “proof of damage (harm)” is essential in presenting a revocatory claim. Citing Rayne State Bank & Trust Co. v. Nat’l Union Fire Ins. Co., 483 So.2d 987 (La.1986), the majority also noted the Supreme Court said:

“In Louisiana prescription does not begin to run until damage is sustained. The tort prescription provisions in former C.C. 3537 were reenacted without substantive change in 1984 as C.C. 3492. C.C. 3537 provided that the one year prescriptive period for delictual actions run ‘from [the day] on which the injurious words, disturbance, or damage were sustained.’
Mere notice of a wrongful act will not suffice to commence the running of the prescriptive period. The reason is clear. In order for the prescriptive period to commence, the plaintiff must be able to state a cause of action — both a wrongful act and resultant damages. Because the damage must necessarily occur after the wrongful act, prescription runs from that point and not from the date of the wrongful act. See Owens v. Martin, 449 So.2d 448 (La.1984), reaffirming Jones v. Texas & Pacific Ry. Co., 125 La. 542, 51 So. 582 (1910). Thus, until damage was ‘sustained’ by the bank, it had no cause of action, and prescription did not commence to run ...”

Therefore, the majority reasoned the Louisiana revocatory action’s prescriptive period does not begin to run until the “damage is sustained” which necessarily occurs after the date of the wrongful act.

In the instant case, the trial court cited Lewis v. Hood, 1997-2118 (La.App. 1 Cir.1998), 721 So.2d 1078 in support of its judgment. The trial court concluded that the language of article 2041 is clear and unambiguous in its requirements. The trial court stated that in order to assei't a revocatory cause of action there must be a debt or right of the obligee and a subsequent act by obligor that causes or increases his insolvency. The trial court opined that the cause of action arises when the | sobligor-debtor performs an act, which causes insolvency or increases. Further, that obtaining a judgment simply does not matter in establishing the cause of action. Also, that there is no need to look to the revision comments because the language of La. Civil Code Art. 2041 is clear.

The trial court concluded that La. Civil Code Article 2041 has a one-year prescriptive period which was triggered when Allied, the obligee-creditor knew or should have known of the donation which they alleged created or increased the insolvency of the debtor-obligor, Stephen D. Edgett.

After careful review of the record, we find that more than a year had elapsed before Allied Shipyard filed its revocatory action on December 18, 2002. Therefore, the trial court properly granted the exception of prescription dismissing Allied Shipyard’s Action to revoke the donation that the Edgetts made to their daughter, Lauren L. Edgett.

CONCLUSION

Accordingly, we affirm the trial court’s judgment granting the exception of prescription and its dismissal of Allied Shipyard’s revocatory action against the Ed-getts.

MURRAY, J., concurs with reasons.

| j MURRAY, J.,

concurs with reasons.

The issue on this appeal is whether the trial court correctly construed La. C.C. art. 2041 as providing that prescription commences to run from the date the creditor knew or should of known of the act, i.e., the wrongful transfer of the debtor’s assets. Based on the revision comments to Article 2041, the Third Circuit has construed this article to mean that a distinction must be drawn between the wrongful transfer itself and the harm caused by the transfer (i.e., the damages sustained by the creditor). See Premier Bank, Nat’l Ass’n v. Stout, 627 So.2d 188 (La.App. 3 Cir.1993); First Fed. Sav. & Loan Ass’n of Lake Charles v. Jones, 620 So.2d 408 (La. App. 3 Cir.1993); see also Michael H. Rubin & Stephen P. Strohchein, Developments in the Law 1993-19%: A Faculty Symposium; Security Devices, 55 La. L. Rev. 611, 612 (1995). According to the Third Circuit, Article 2041 provides that prescription runs from the latter date.

I find that construction contrary to the clear meaning set forth in Article 2041 itself. Moreover, the Third Circuit in its latter Stout decision questioned its own reasoning in its earlier Jones decision. Stout, 627 So.2d at 192 (Domengeaux, C.J., concurringXnoting his disagreement with the majority’s “reluctance to rely definitively on the case of [Jones, supra] ... [holding that] prescription under La. C.C. art. 2041 cannot begin to run until there is both a wrongful act and resultant damages.”) The majority in Stout commented that under the facts of the case | ¡.before them the result would be the same under both “the express language of Louisiana Civil Code article 2041, which limits the time period to one year from the time the creditor learned or should have learned of the act” or “the more expansive reading of the article articulated by the majority in Jones,'” which held that prescription runs from the time the creditor learned or should have learned of the damage sustained by it as a result of the wrongful transfer of the debtor’s assets. Stout, 627 So.2d at 191.

Although the revision comments analogize the prescriptive period in Article 2041 to the tort prescription provisions, a revo-catory action is not a tort action. It is a creditor’s action granted solely to creditors who are prejudiced at the time of the transfer. See, La. C.C. art. 2036 (providing that wrongful transfer must occur “after the right of the obligee[-creditor] arose.”) By definition, the creditor is harmed at the time of the wrongful transfer. Nonetheless, the Legislature apparently wanted to protect creditors from deceptive debtors and thus provided a one-year discovery prescriptive period as well as a three-year preemptive period.

Applying the one-year discovery period, the trial court found the revocatory action asserted in this case is prescribed. Because I agree with the result reached by the majority affirming the trial court’s decision, I respectfully concur.

      . And other parties, not including Marilyn S. Edgett and Lauren L. Edgett.

      . This money judgment is presently on appeal in the First Circuit Court of Appeal.


source: Caselaw Access Project

author: 11 LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Francis E. GORBY.
    No. 2003-KA-1666.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Pamela S. Moran, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant, Francis E. Gorby.
    (Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   11 LEON A. CANNIZZARO, JR., Judge.

The State of Louisiana filed a bill of information charging the defendant, Francis E. Gorby, with attempted second degree murder in violation of La. R.S. 14:27(30.1). Following trial, a twelve-member jury found the defendant guilty of the responsive verdict of aggravated battery, La. R.S. 14:34. La.C.Cr.P. art. 814(A)(4). The trial court sentenced him to serve ten years at hard labor; the sentence is to be served concurrently with any other sentence the defendant may be serving. The defendant appealed.

FACTS

Courtney Bateman, the victim, testified that she and her husband, the defendant, met at an apartment on Camp Street that they were thinking of renting. When the defendant arrived, Ms. Bateman told him that she wanted to leave him. He became very upset, and as she tried to leave, he pushed her to the floor. She hit her head, injuring her eye, which bled profusely. Ms. Bateman went to the bathroom thinking that she could climb out the window. However, the defendant pulled her from the window and threw her to the floor; he then beat her head against the toilet. After that the defendant dragged her to the living room and kicked and beat her repeatedly. Ms. Bateman screamed, and he put duct tape over her mouth and kept beating her on the head with a billy club or stick. Ms. Bateman said that she and her husband had talked of committing suicide together, and when she told him that afternoon that she would not kill herself, he told her “he was going to kill me if I didn’t kill myself.” Ms. Bateman managed to get the tape from her mouth and began screaming. Shortly afterward, she heard sirens. She ran Lout the door and down the steps where she met the police officers who were coming up the steps. She was taken to the hospital and treated for a broken neck, skull fracture, broken eardrum, three broken ribs, bruised liver, sprained wrist, and various cuts and bruises. The beating lasted three to four hours. At the time of trial, she was still undergoing treatment and expected to have another surgery on her neck. Dr. Najeeb Thomas, the chief resident in neurosurgery at Charity Hospital, testified that he performed a cervical neck fusion on Ms. Bateman. He took a bone plug from her hip and used it to stabilize her spine. He also put a titanium plate in her spine to hold it in place. The operation was necessary because the injury to her spine had made her vulnerable to severe consequences — such as becoming paralyzed or sudden death — from any further slight insult to her spine. When asked if the injuries Ms. Bateman received were life-threatening, the doctor stated that leaking spinal fluid could have resulted in meningitis, but the leakage stopped spontaneously. He reiterated that her neck injury was so severe that a minor jolt to her spine could have devastating results. He said that in the months since her surgery Ms. Bateman’s neck has progressed toward a fusion but it had not completely healed.

Detective Martin Thiry testified that he answered a call concerning a woman screaming for help, and he found the victim in front of the building in a catatonic state. She told the officer that someone tried to kill her. The detective called for medical help for her and began searching the building. He found an apartment with the door ajar and saw a trail of blood through the rooms leading to the bathroom. It was obvious a struggle had occurred in the apartment. He noticed the condition of the bathroom window and concluded that someone had left the apartment for the ^backyard via the window. The detective searched the backyard and found the defendant at one end. When Detective Thiry turned the flashlight beam on him, the defendant said, “[W]e were supposed to die together.” The defendant was ordered to show his hands and get on the ground. He did not respond, and the detective used pepper spray on him; at that time the defendant dropped a knife, but he did not fall to the ground. Several officers were able to subdue him. When he was placed in the police car, the defendant tried to kick out the windows. He was taken to the hospital. After being given his Miranda rights, the defendant told the officer that he and the victim had entered into a suicide pact, and, after he cut his wrists, the victim changed her mind and would not go through with it. He “resolved to show her how to do it.” The detective acknowledged that Mr. Gorby had cuts on his wrist.

ASSIGNMENT OF ERROR

In a single assignment of error, the defendant complains that his sentence is excessive.

STANDARD OF REVIEW

Article I, § 20 of the Louisiana Constitution of 1974 provides that “[n]o law shall subject any person ... to cruel, excessive or unusual punishment.” A sentence, although within the statutory limits, is constitutionally excessive if it is “grossly out of proportion to the severity of the crime” or is “nothing more than the purposeless and needless imposition of pain and suffering.” State v. Caston, 477 So.2d 868, 871 (La.App. 4 Cir.1985). However, the penalties provided by the 1 legislature reflect the degree to which the criminal conduct is an affront to society. State v. Brady, 97-1095 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264.

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Black, 98-0457, p. 8 (La.App. 4 Cir. 3/22/00), 757 So.2d 887, 892. If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case. State v. Caston, 477 So.2d at 871. The reviewing court must also keep in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982).

The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reviewing court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

DISCUSSION

La. R.S. 14:34, the aggravated battery statute, provides for a fine of not more than five thousand dollars and a sentence with or without hard labor of not more than ten years. The trial court sentenced the defendant to ten years at hard labor and stated that he imposed the sentence “because of the severity of the injuries suffered by the victim.” The defendant argues that he does not deserve the maximum sentence for aggravated battery and that the trial court should have considered mitigating factors.

|/We disagree. Nothing justifies this offense, which could have resulted in even more serious injuries to or the death of Ms. Bateman. Furthermore, we do not find the challenged sentence to be excessive or grossly disproportionate to the seriousness of the crime under the circumstances established in the record.

In State v. Brown, 2003-0732 (La.App. 4 Cir. 7/23/03), 853 So.2d 665, the defendant, who was sentenced to ten years after being convicted of aggravated battery, argued that his sentence was excessive, and this Court affirmed the sentence noting that the defendant inflicted life-threatening injuries on the victim. Similarly in State v. Hawkins, 95-0028 (La.App. 4 Cir. 3/29/95), 653 So.2d 715, this Court affirmed a ten-year sentence for a first offender convicted of aggravated battery.

This sole assignment of error is without merit.

CONCLUSION

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: JjTERRI F. LOVE, Judge. [! CANNIZZARO, J.,

text:
    STATE of Louisiana v. Kevin L. GOLDSTON.
    No. 2003-KA-1215.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2004.

      Eddie J. Jordan, Jr., District Attorney, Kristen Keller, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO JR.).
   JjTERRI F. LOVE, Judge.

Defendant was convicted of aggravated burglary and sentenced to thirteen years at hard labor. After the State filed a multiple bill, the defendant was adjudicated a third felony offender. The original sentence was vacated and the defendant was re-sentenced as a habitual offender to 20 years. On appeal, the appellant by counsel alleges the State failed to provide sufficient evidence to support the appellant’s conviction and the trial court erred in finding the appellant is a third felony offender. The appellant pro se also urges the trial court erred in its instruction regarding reasonable doubt, a new trial should be granted because new evidence was discovered, and two key witnesses committed perjury. For the reasons assigned below, we affirm the defendant’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Ms. Gail Bowlin, an addiction therapist from Bloomington, Illinois, testified that in March of 2002 she and her fourteen-year-old daughter were spending a week in New Orleans at the Avenue Plaza Hotel on St. Charles Avenue. On March 28th about 6:30 p.m., Ms. Bowlin left her Toyota in front of the hotel for valet parking. She and her daughter went upstairs. She decided to go out for a sandwich; when she returned to the hotel about 7 p.m., she noticed her car was still Ron the street where she had left it. She went to her room and began packing because the two were leaving early the next morning. Ms. Bowlin’s daughter, Rachael, was watching television when Ms. Bowlin heard a knock on the door and a man’s voice announcing, “I’m from security. Your Toyota has been damaged.”

She cracked the door open a few inches and asked the man standing there what he meant. He did not respond. She told him she would go to the front desk for information. When she attempted to close the door, he pushed it open and forced his way into the room, saying, “I’m from maintenance. I’m here to fix your toilet. Your toilet is broken, and the front desk sent me up.” Ms. Bowlin knew that nothing was wrong with the toilet, and she asked the man for identification. When he could not produce any, she told him that she would call the front desk. The man responded that he would call and walked over to the telephone, but instead of calling, he ripped the cord from the wall.

Immediately, Ms. Bowlin screamed to her daughter to run. Both women tried to leave the room; however, the man grabbed Ms. Bowlin around her shoulders and.Rachael by her tank top. The tank top ripped and Rachael’s back was scratched by his nails. Ms. Bowlin screamed for help, and a man and his son from a nearby room came in. The intruder released Ms. Bowlin, who had pinched him on his lower lip, but he was still holding Rachael. The neighbor told his son to call security and tried to get between the intruder and Rachael. At that point another couple appeared and began questioning the intruder. He told them he was part of the maintenance crew and was there to fix the toilet. He then ran down the hall.

Ms. Bowlin explained that her daughter was not in court to testify because she was still too traumatized by the incident to talk about it. She also stated under Rcross-examination that she did not know if the intruder took anything from her room. However, the wedding ring she was wearing during the altercation was found in the hotel hall about twenty feet from her room by a detective.

Mr. Robert Payne of Skokie, Illinois, was vacationing in New Orleans with his family on March 28, 2002. He, his wife, and two children were in their suite at the Avenue Plaza Hotel about 7 p.m. when he heard screams coming from across the hall. When he opened his door, he looked diagonally across the hall and saw a young girl trying to escape the grasp of someone within her room. She was being pulled backward by the strap of her blouse.

Mr. Payne ran into her room and put his hands on the man holding her and demanded he release the girl. The man told Mr. Payne that he was from maintenance and this was all a “misunderstanding.” Mr. Payne responded by repeating that he should let go of the girl. The man then said that he was there to fix the toilet, and when Mr. Payne again told him to release the girl, the man did so. The girl collapsed in the hallway.

Mr. Payne, who had had maintenance workers in his room, noticed that the intruder did not have on the Avenue Plaza uniform; in fact he was wearing a T-shirt wrong side out and black pants. The intruder announced that he was going downstairs to talk with his supervisor, and Mr. Payne warned him that someone in his family had already called downstairs. Mr. Payne asked Ms. Bowlin and her daughter if they were okay, and both answered affirmatively. He then followed the intruder into the hall and saw him get on the elevator. Ms. Bowlin and Rachael went to Mr. Payne’s room to calm down, and he saw then that Rachael’s back was scratched. Early the next morning, police officers showed Mr. Payne a photo lineup, and he selected Kevin Goldston’s picture.

| ¿Mr. Charles Cañedo, the Director of Housekeeping at the Avenue Plaza Hotel, testified that he received a telephone call on March 28th from police officers who wanted him to view a videotape to determine if a person on the tape was one of his employees. Mr. Cañedo recognized Kevin Goldston and testified that Mr. Goldston was wearing the same clothes he had on earlier that day when he left work. Mr. Goldston had been working at the hotel for only three or four weeks. Mr. Cañedo explained that the hotel policy is that no employee is to return to the hotel after the end of his workday. On March 28th Mr. Goldston worked from 8:39 a.m. until 2:10 p.m.; his job involved collecting dirty linen and distributing clean linen as well as hauling trash. He would never be expected to go to a room to clean it. Mr. Gold-ston did not come to work on March 29th, and Mr. Cañedo did not remember if Mr. Goldston quit or was fired. However, when he was shown a document verifying Mr. Goldston’s dismissal for violating company policy, Mr. Cañedo recognized the name of the Human Resources Director as authorizing the action.

Sergeant Andre Carter was called to the Avenue Plaza Hotel on the evening of March 28th where he met with Ms. Bowlin, her daughter, and Robert Payne. He also spoke to a manager at the hotel who told him that the halls were monitored by video cameras. The sergeant watched the videotape with some of the employees who told him that the man pictured on the video worked in housekeeping. Sergeant Carter then called the head of housekeeping to view the tape, and he identified Kevin Goldston as the man depicted on the tape.

The next morning the sergeant showed a photo lineup to Mr. Payne who selected the defendant’s picture. Ms. Bowlin and her daughter left New Orleans at 5 a.m. on March 29th, and so the sergeant mailed photo lineups to each of them. | ¡^Neither was able to identify the defendant. The sergeant was'asked if the defendant was wearing glasses in the videotape showing him walking toward the victims’ room and he answered affirmatively. After the incident, glasses — which did not belong to either of the victims — were found in their room.

When the sergeant spoke to Mr. Gold-ston after he was arrested, the sergeant read him his Miranda rights, and Mr. Goldston made a statement in which he stated that he had gone to a room on the eighth floor of the hotel and asked a guest if she needed any service. She opened the door, “looked at me like I was up to something,” and began screaming. When asked if he went to the room as part of his job, Mr. Goldston answered negatively. The sergeant noticed that Mr. Goldston had a cut on his lip and asked how it occurred;Mr. Goldston answered that his girlfriend did it. He denied pulling the telephone from the wall. When the sergeant was asked if Mr. Goldston committed a theft in the course of this incident, he answered that he did not.

On May 17, 2002, the State filed a bill of information charging Kevin L. Goldston with aggravated burglary, a violation of La. R.S. 14:60. At a hearing on August 13th the trial court found probable cause and denied the motions to suppress the evidence and the statement. A twelve-member jury found. Mr. Goldston guilty as charged at trial on November 12th. He was sentenced on November 21st to serve thirteen years at hard labor. The State filed a multiple bill, and, after a hearing on December 18th, Mr. Goldston was found to be a triple offender, his earlier sentence was vacated, and he was sentenced to serve twenty years at hard labor. Mr. Goldston’s motion for reconsideration of sentence was denied, and his motion for an appeal was granted.

| ^ERRORS PATENT

A review of the record for errors patent reveals one. Neither the docket master nor the minute entries indicate that the defendant was ever arraigned or entered a plea.

La.C.Cr.P. art. 831 provides in pertinent part that a defendant must be present at arraignment and when a plea is given. La.C.Cr.P. art. 832(A) provides a waiver of this requirement when a defendant is temporarily voluntarily absent. La.C.Cr.P. art. 655 provides, inter alia, that failure to arraign the defendant or the fact that he did not plead is waived if the defendant enters the trial without objecting thereto. In such a case, it shall be considered as if he had pleaded not guilty.

The defendant has shown no prejudice resulting from the patent error. He did not object to the omission of his arraignment at trial or on appeal. Because his plea of not guilty can be assumed, the failure of the record to show that he was arraigned on the charges in this case is harmless error. State v. Perez, 98-1407 (La.App. 4 Cir. 11/3/99), 745 So.2d 166.

ASSIGNMENT OF ERROR NUMBER 1

In his first assignment of error through counsel, Mr. Goldston argues that the evidence is insufficient to support his conviction. He contends that the State did not prove that he had specific intent to commit a felony or theft in Ms. Bowlin’s room.

A similar argument was considered in State v. Francis, 96-2389 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 460, where this Court set out the standard for reviewing such an issue:

|7The standard for reviewing a claim of insufficient evidence is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781[, 61 L.Ed.2d 560] (1979); State v. Rosiere, 488 So.2d 965 (La.1986). The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence, the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988). Additionally, the reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence. Id.
When circumstantial evidence forms the basis for the conviction, such evidence must exclude every reasonable hypothesis of innocence. La.Rev.Stat. 15:438. The court does not determine whether another possible hypothesis suggested by the defendant could afford an exculpatory explanation of the events; rather, when evaluating the evidence in the light most favorable to the prosecution, the court determines whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt under Jackson v. Virginia. State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, cert. denied, 513 U.S. 975, 115 S.Ct. 450[, 130 L.Ed.2d 359] (1994). This is not a separate test from Jackson v. Virginia, but is instead an evidentiary guideline for the jury when considering circumstantial evidence and facilitates appellate review of whether a rational juror could have found the defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984); State v. Addison, 94-2431 (La.App. 4 Cir. 11/30/95), 665 So.2d 1224.

Mr. Goldston was convicted of aggravated burglary, in violation of La. R.S. 14:60 which provides, in part:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender,
|s(l) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

Mr. Goldston admits he forced his way into the victims’ room and that he tried to keep the two from leaving; however, he maintains he made no threats to the women and that he took no property. He also points out that he had worked at the hotel about a month, and he knew that security cameras were in the hallways. Furthermore, he did not attempt to flee. Although he did not report to work the next day, he remained at home, and he cooperated with the police. He maintains that Ms. Bowlin misunderstood him and he wanted to keep the women in the room to clear up the misunderstanding. Accordingly, he contends that there is no evidence that he intended to commit a felony or theft when he entered the room.

Again citing State v. Francis, 715 So.2d at 461, intent is defined as:

a question of fact, but it need not be proved as a fact. It may be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (La.1983); State v. Robinson, 29488, p. 3 (La.App.2d Cir.6/18/97), 697 So.2d 607, 609, writ denied, 97-1845 (La.12/12/97), 704 So.2d 1200. For example, a defendant’s flight from the scene of a crime indicates consciousness of guilt. That is a circumstance from which guilt may be inferred. State v. Bell, 581 So.2d 384, 386 (La.App. 4 Cir.1991).

The defendant places great weight on the fact that he did not flee from the scene and that he co-operated with the police. However, he did run to the elevator after Ms. Bowlin’s neighbors confronted him, he did not go to his supervisor as he | (¡stated he would do, and he did not return to work the next day. Thus, his behavior does not indicate that he felt blameless.

In Francis, 715 So.2d 457, the defendant and victim had had a romantic relationship for four years before the incident at issue. The relationship had ended, and the victim feared the defendant. He broke into her residence, pulled the telephone cord from the wall, and punched her several times in the head. Id. She managed to get free and run from the home. Mr. Francis argued there was no evidence of his intent to commit a felony or theft in the victim’s home; however, this Court held that the circumstantial evidence was sufficient for a rational trier of fact to find that the defendant intended to cause greater harm to the victim and the fact that she escaped him was irrelevant. Id. See also, State v. Celestine, 98-1166 (La.App. 5 Cir. 3/30/99), 735 So.2d 109.

In the case at bar, the evidence indicates that the defendant entered an inhabited dwelling without authorization, he pulled the telephone from the wall, he would not leave when so ordered, and he committed batteries on the two victims. Also, the victim’s wedding ring which she was wearing prior to the incident was found in the hotel hall about twenty feet from her room after the altercation. From this evidence a rational trier of fact could infer that the defendant intended to commit a felony or theft therein. The evidence is sufficient to support a conviction for aggravated burglary. There is no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER 2

The second assignment of error concerns the defendant’s multiple offender status. He admits his identity as to the two prior offenses but contends that the trial court erred in sentencing him as a third offender because he pleaded guilty to his first Imoffense under La. R.S. 40:98s. Mr. Goldston makes a two-part argument: first, a guilty plea under La. R.S. 40:983 cannot serve as a predicate under La. R.S. 15:529.1, and second, the dates of his convictions do not fit the required offense-conviction-offense-conviction required by La. R.S. 15:529.1.

La. R.S. 4,0:988 cannot serve as a predicate under La. R.S. 15:529.1

Mr. Goldston argues a guilty plea under La. R.S. 40:983 cannot serve as a predicate under La. R.S. 15:529.1. At issue here are the defendant’s reliance on paragraph A and the State’s reading of paragraph B of the statute. In 1993 Mr. Gold-ston, a first offender, was charged with possession of cocaine, and the trial court allowed him to plead under La. R.S. 40:983 which is not an adjudication of guilt. However, the defendant obviously violated his probation that was revoked on March 21, 1995, when he was sentenced to three years at hard labor to be served concurrently with his sentence for his second offense, possession of crack cocaine with intent to distribute.

In The defendant relies on several cases for the proposition that a plea of guilty under La. R.S. 40:983 is not an adjudication of guilt and cannot serve as a predicate conviction under La. R.S. 15:529.1. In State v. Rowel, 97-1550 (La.App. 4 Cir. 3/31/99), 732 So.2d 123, the defendant was charged with being a felon in possession of a firearm based on a conviction for possession of cocaine. The first offense resulted in a plea under La. R.S. 40:983 on September 13, 1990, and a suspended sentence and active probation for five years. A docket master entry for November 2, 1995 indicates the defendant’s probation was terminated unsatisfactorily and his release was issued; however, there is no indication that his probation was revoked or his sentence made executory. Accordingly, this Court held that the plea under La. R.S. 40:983 could not be used to charge the defendant as a convicted felon in possession of a firearm. See also, State v. Randall, 464 So.2d 971 (La.App. 4 Cir.1985), State v. Christian, 618 So.2d 559 (La.App. 4 Cir.1993), State v. Guy, 99-1893 (La.App. 4 Cir. 7/19/00), 775 So.2d 454.

In the instant case Mr. Goldston was placed on two years of probation on January 19, 1993. On April 15, 1993, the court amended the conditions of probation, and on June 21, 1993, the State filed a rule to show cause why probation should not be revoked. The hearing on the rule was reset five times, and on November 8, 1993, the court extended the probation to five years or until January 19, 1998. When he was arrested on January 5, 1995, a status hearing was set. On March 14, 1995, after Mr. Goldston pleaded guilty to possession of cocaine with intent to distribute, his five-year sentence was imposed to run concurrently with his sentence in case number 360-893 “E”, his possession of cocaine case under La. R.S. 40:983. According to the docket master of case number 360-893, his probation was revoked and the sentence under La. R.S. 40:983 was set aside on March 21, 1995; then Mr. Goldston was hafound to be guilty of possession of cocaine and he was sentenced to serve three years at hard labor.

This ease differs from those cited by the defendant in that a docket master indicates that Mr. Goldston’s probation for his first offense was revoked, his adjudication under La. 40:983 was set aside, and his sentence made executory. Thus, the provisions of La. 40:983(B) were followed: “[u]pon the defendant’s violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.”

Accordingly, Mr. Goldston can be sentenced as a multiple offender on the possession of cocaine offense because his plea under La. R.S. 40:983 was set aside and an adjudication of guilt was imposed upon him.

Proper sequencing not met

In the second part of the assignment, the defendant contends that he could not be sentenced under the habitual offender statute because the proper sequencing of conviction, arrest, conviction is not met. The defendant points out that the date of the revocation is March 21, 1995, and the date he pleaded guilty to possession of cocaine with intent to distribute was March 14, 1995. Thus, the record seems to indicate that the sentence for his first offense was imposed after the sentence for his second offense.

The State counters that under La. R.S. 40:983(B) the “entering of the adjudication of guilt shall be retroactive to the date the defendant plead guilty or was convicted under Subsection A of this section, but the imposition or execution of sentence shall not be retroactive.”

Both these positions are problematic. First, the minute entry and docket master of the sentencing on the possession of cocaine with intent to distribute both |13show that the five year sentence was imposed to run concurrently with the three year term for the first offense, possession of cocaine. Thus, the sentence on the first offense appears to have been imposed before that of the second offense even though the docket master of March 21st suggests otherwise. Secondly, the authority the State cites under La. R.S. 40:983(B) was not the law in 1993; it was an amendment to the statute added in 1994.

At the multiple bill hearing, the State argued that under State v. Everett, 2000-2998 (La.5/14/02), 816 So.2d 1272, the defendant could be sentenced as a third felony offender. In Everett the Louisiana Supreme Court held that no ex post facto violation occurred when a defendant was adjudicated a third felony offender even though when the second felony was committed, he could not have been adjudged a second offender under the Habitual Offender Statute. Everett concerned the application of the 1995 amendment to La. R.S. 15:529.1(C) which provided that the section was not applicable when there was a ten-year lapse between the expiration of a sentence for a prior felony and the commission of the next felony. The court concluded that application of La. R.S. 15:529.1(C) as amended in 1995 did not increase the punishment for a crime after the commission of the offense and is therefore not an ex post facto application of the law. The court noted that an ex post facto inquiry determines whether a new law redefines criminal conduct or increases the penalty by which the crime is punishable. Id., 816 So.2d at 1280.

State v. Everett resolves the issue of whether the amendment to La. R.S. 40:983(B) which was enacted after the defendant pleaded guilty to possession of cocaine under that statute is an ex post facto violation. Because the amendment does not redefine criminal conduct or increase the penalty for the crime, it is not a violation. Accordingly, the State is correct that the date the defendant pleaded guilty |14under La. R.S. 40:983 is the significant date, and it is January 19, 1993. Thus, there is no violation of the sequencing of offense, conviction, offense, and the defendant was properly sentenced as a third felony offender.

PRO SE ASSIGNMENT OF ERRORS 2-4

The defendant pro se urges four errors independent of counsel. Mr. Goldston claims the court erred in its jury instruction regarding reasonable doubt. He also requests a new trial should be granted because new evidence has been discovered and if it had been introduced at trial it would probably have changed the verdict of guilty. His third and fourth assignments of error claim Sergeant Carter and Ms. Bowlin committed perjury.

Improper jury instruction regarding reasonable doubt

In this assignment Mr. Goldston criticizes the trial court’s instruction to the jury concerning reasonable doubt. The United States Supreme Court has held that the definition of reasonable doubt violated the Due Process Clause when the definition equated reasonable doubt with “grave uncertainty,” “actual substantial doubt,” and “moral certainty.” Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). In this case, the judge defined reasonable doubt as follows:

the defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt.If you’re not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty.
Now, while the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you’ve carefully considered all of the evidence, you cannot say you’re firmly convinced of the truth of the charge.

The objectionable phrases do not appear in this jury charge. Furthermore, there was no objection to the instruction concerning reasonable doubt. Thus, the 11sclaim was not preserved because of the lack of contemporaneous objection to the instruction. See State v. Berniard, 625 So.2d 217 (La.App. 4 Cir.1993); State v. Dobson, 578 So.2d 533 (La.App. 4 Cir.1991). There is no merit in this assignment.

New Evidence Discovered

The defendant next argues that he should be granted a new trial because new evidence has been discovered and if it had been introduced at trial it would probably have changed the verdict of guilty. La. C.Cr.P. art. 851(3).

In State v. Price, 2002-0360 (La.App. 4 Cir. 4/02/03), 842 So.2d 491, this count considered a similar issue and stated:

In order to obtain a new trial based on newly discovered evidence, a defendant must show: (1) the new evidence was discovered after trial; (2) the failure to discover the evidence at the time of trial was not due to the defendant’s lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably have changed the verdict of guilty. La.C.Cr.P. art. 851(3); State v. Brisban, 2000-3437, p. 12 (La.2/26/02), 809 So.2d 923, 931; State v. Bright, 98-0398, pp. 25-26 (La.4/11/00), 776 So.2d 1134, 1149. A trial court assessing the legal merits of a motion for new trial is given considerable latitude in evaluating the impact of newly discovered evidence on the verdict. State v. Brooks, 98-0693, p. 12 (La.App. 4 Cir. 7/21/99), 758 So.2d 814, 821. The trial court has much discretion in ruling on a motion for new trial. State v. Cureaux, 98-0097, p. 4 (La.App. 4 Cir. 5/26/99), 736 So.2d 318, 321. Review of the trial court’s ruling is limited to determining whether the trial court abused its discretion. State v. Labran, 97-2614, p. 6 (La.App. 4 Cir. 5/26/99), 737 So.2d 903, 907.

Mr. Goldston has attached to his brief a document from the Latent Prints Section of the New Orleans Police Department Records and Identification Division. The document, signed by Officer Terry Bunch, states his finding that an examination of the defendant’s fingerprints and prints submitted to the office proved negative, i.e. Imthe prints on the telephone did not belong to the defendant. The officer requested palm prints of the victim.

The defendant fails to allege how this evidence could have changed the verdict. The evidence that the defendant forced his way into her hotel room and committed a battery was testified to by the victim and her neighbor; further, the defendant’s employer identified him from a videotape. His identity as the perpetrator is not at issue, and the fact that his fingerprints were not legible on the telephone is not material. The motion for a new trial is denied.

Perjury

In his third pro se assignment, the defendant contends that Sergeant Carter committed perjury. Perjury is defined under La. R.S. 14:123 as “the intentional making of a false ... statement in ... a judicial proceeding” when “the accused knew the statement to be false.”

He notes that at the pretrial hearing Sergeant Andre Carter testified that the victim identified him from videotape shown to her on the night of the incident. The defendant then points out that at trial Ms. Bowlin was asked if she saw Mr. Goldston on the tape from the surveillance camera, and she answered, “I thought so initially, but it was hard to tell because it was just that profile shot, and I didn’t see a full face shot.” Ms. Bowlin admits she considered the identification positive initially but then she qualified her answer because she could not see the man’s entire face. In the sergeant’s testimony at trial, he said that he showed the videotape to the victim, other employees, and the hotel manager before reaching a conclusion as to the identity of the offender. Furthermore, Ms. Bowlin’s testimony indicates that she did identify Mr. Goldston on the tape but then had reservations. She did not clarify whether she told the sergeant of her doubts. The statements at issue here are not even l17contradictory and certainly do not rise to the level of perjury.

In a supplementary brief Mr. Goldston also argues that Sergeant Carter committed perjury when he testified that Mr. Payne was able to identify the person seen fighting with the victims. Mr. Goldston cites the Hearing on the Motion to Suppress, page seven, where the detective was asked:

And when presented with the six photographic lineup, [sic] was Mr. Payne able to make an identification of the person you saw fighting with the victims? [Emphasis added].

Sergeant Carter answered affirmatively that Mr Payne “positively identified Kevin Goldston as the subject he encountered.”

Mr. Goldston correctly points out that the sergeant did not see him fighting with the victims; indeed the sergeant did not arrive on the scene until after the defendant left it. Rather, the sergeant saw videos of a man identified as the defendant running down the hall of the hotel after the incident, and it was Mr. Payne who observed the defendant fighting with the victims and later identified the defendant when he sato the lineup. Although the sergeant was asked a question with a misused pronoun, he answered correctly that Mr. Payne was able to make an identification.

Mr. Goldston now argues that this error amounted to perjury and resulted in his being misidentified. This argument is baseless. First, the sergeant did not make the statement at issue and evidently overlooked the faulty pronoun when he answered. Secondly, Mr. Payne’s identification was based on his close view of the defendant during the episode. Finally, Mr. Payne’s identification was corroborated by the defendant’s employer and others. There is no question of misidentification.

There is no merit in this assignment.

|isln his fourth assignment of error, the defendant maintains that Gail Bowlin, the victim, committed perjury when she told the officer that he had pulled the telephone from the wall. His evidence for this claim is the police report that claimed the crime lab could not identify any fingerprints on the telephone as belonging to the defendant. This assignment cannot be considered by this Court. This is a court of record and the police report referred to is not part of the record.

CONCLUSION

The defendant’s conviction and sentence are affirmed. His motion for a new trial is denied.

AFFIRMED.

CANNIZZARO, J., concurs in the result and assigns reasons.

[! CANNIZZARO, J.,

concurs in the result and assigns reasons.

I concur in the result reached by the majority, but I disagree with their ultimate reasoning regarding that part of the second assignment of error which relates to the proper sequencing of prior felony convictions.

The majority relies on the Supreme Court’s decision in State v. Everett, 2000-2998 (La.5/14/02), 816 So.2d 1272, to conclude that the retroactive application of the 1994 amendment to La. R.S. 40:983(B) is not an ex post facto violation of the law because the amendment did not redefine criminal conduct or increase the penalty for the crime. Thus, the date the defendant entered his plea pursuant to La. R.S. 40:983, January 19, 1993, is to be considered the date of his first conviction for sequencing purposes to adjudicate the defendant a third felony offender.

The issue considered by the Supreme Court in Everett was whether the Habitual Offender Law, La. R.S. 15:529.1, as amended in 1995, permitted a defendant to be adjudicated a third felony offender when he could not have been adjudicated a second felony offender under the version of La. R.S. 15:529.1(C) in effect at the time he committed his second felony offense. In that case, Mr. Everett was convicted of a felony in 1984 and sentenced to three years. In 1993, he was convicted of another felony and was placed on probation for eighteen months. Although it was his second felony conviction, he could not have been adjudicated a 1 ¡¡second felony offender because at that time La. R.S. 15:529.1(0 provided that if more than five years had elapsed since the expiration of the sentence for the previous conviction and the time of the commission of the latest felony for which he had been convicted, then the Habitual Offender Law did not apply. The Louisiana Legislature later amended the relevant time period provided in subsection (C) from five years to seven years in 1994 and then to ten years in 1995. Subsequently, Mr. Everett was charged with and convicted of another felony in 1998. The State then filed a multiple bill and alleged Mr. Everett was a third felony offender, citing his 1984 and 1993 felony convictions. Mr. Everett challenged his adjudication as a third felony offender, arguing that he could not be adjudicated a third offender because he had never been adjudicated a second felony offender in 1993 and that the Ex Post Facto Clauses of the Federal and State Constitutions prohibited the application of the ten-year period of La. R.S. 15:529.1(C) as amended in 1995 to the time period between his 1984 and 1993 offenses.

The Supreme Court disagreed finding that there was no violation of the ex post facto clause in applying the ten-year period rather than the former five-year period. The Court noted that Mr. Everett did not acquire any “vested right” to a particular offender status upon expiration of the time limit in La. R.S. 15:529.1(0 and that his 1984 conviction was not expunged simply because the Habitual Offender Law was not applicable to his case in 1993.

The issue and facts presented in Everett are clearly distinguishable from those of the instant case. Thus, I submit the majority’s reliance on Everett is misplaced. Whether the application of the 1994 amendment to La. R.S. 40:983(B) constitutes an ex post facto violation of the law is not the dispositive issue in this case. Also, whether the defendant’s adjudication of guilt for possession of cocaine |aoccurred on January 19, 1993 or March 21, 1995 for purposes of sentencing him as a third offender under the Habitual Offender Law is irrelevant.

Sequencing (arrest, conviction, arrest, conviction) is relevant and necessary to adjudicate a defendant a second offender. That is, a defendant must previously have been convicted of a felony in order to be adjudicated a second felony offender under La. R.S. 15:529.1. As the Louisiana Supreme Court aptly stated in State ex rel. Mims v. Butler, 601 So.2d 649 (1992), “[t]he cornerstone of [the sequencing] scheme is that felons graduate to second offender status, not by committing multiple crimes, but by committing a crime or crimes after having been convicted.” Id., 601 So.2d at 650. The Habitual Offender statute, however, does not require a defendant to have been adjudicated a second offender in a previous prosecution before he can be adjudicated a third offender. See La. R.S. 15:529.1(B). Rather, pursuant to La. R.S. 15:529.1(C), if ten years or less have elapsed between the defendant’s discharge from being subject to penitentiary confinement for the previous conviction and the commission of the underlying felony, then the Habitual Offender Law is applicable and subsection (A) is used to determine the appropriate sentence, depending on the defendant’s total number of felony convictions.

In this case, less than ten years have elapsed between the defendant’s previous conviction on March 14, 1995 for possession of cocaine with the intent to distribute and the commission of the aggravated burglary charge on March 28, 2002. Therefore, pursuant to subsection (A) of the Habitual Offender Law, the trial court correctly counted the defendant’s felony convictions: (1) possession of cocaine (March 21,1995), (2) possession of cocaine with the intent to distribute (March 14, 1995), and (3) aggravated burglary (November 21, 2002), and sentenced him as a third offender. The overlapping of the arrest and convictions with regard to the first and second felony offenses in this case is irrelevant so long |4as those two offenses did not arise out of a single criminal episode or series of criminal episodes and were then brought to trial for a single disposition (which was the situation in Mims). If that were the case, then the successful prosecution of the two offenses in a single disposition would have constituted only one conviction for enhancement purposes. But that does not exist here.

The defendant’s second assignment of error is without merit.

      . Former La. R.S. 40:983, repealed by Acts 1995, No. 1251, § 2, which at the time of the defendant's 1993 plea provided:
      A. Whenever any person who has not previously been convicted of any offense under this Part pleads guilty to or is convicted of having violated R.S. 40:966(C), R.S. 40:967(C), R.S. 40:968(0, R-S. 40:969(0, R-S. 40:970(0 of this Part, and when it appears that the best interests of the public and of the defendant will be served, the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as may be required. Among such conditions the court shall order that the defendant perform not less than one hundred hours of court-approved community service that may include manual labor.
      B. Upon the defendant's violation of any of the terms or conditions of his probation, the court may enter an adjudication of guilt and impose sentence upon such person.
      C. Upon fulfillment of the terms and conditions of probation imposed in accordance with this Section, the court shall discharge such person and dismiss the proceedings against him.
      D. Discharge and dismissal under this Section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under R.S. 40:982.
      E. Discharge and dismissal under this Section may occur only once with respect to any person.


author: |, SULLIVAN, Judge.

text:
    Lillian E. Landaiche ROY, et al. v. Sheriff Bill BELT, et al.
    No. 2003-1022.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.
    Rehearing Denied April 7, 2004.

      Ricky L. Sooter, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, R. Gray Sexton, Baton Rouge, LA, for Plaintiffs/Appellants, Lillia E. Landaiche Roy, Constance Elizabeth Roy, Catherine Marie Roy, Sheldon Louis Roy.
    Rodney M. Rabalais, Marksville, LA, for Defendant/Appellee, Law Enforcement District of Avoyelles Parish, Bill Belt, Sheriff of Avoyelles Parish.
    Robert A. Johnson, Marksville, LA, for Defendant/Appellee, Avoyelles Parish Police Jury.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   |, SULLIVAN, Judge.

Lillia Roy and her children, Constance Roy, Catherine Roy, Sheldon Roy and Lil-lia Roy, filed a boundary action against The Law Enforcement District of Avo-yelles Parish, Louisiana (Sheriff Belt) . They amended their petition to add a claim for inverse condemnation. After a trial, judgment was rendered in favor of Sheriff Belt, establishing Bayou Savage as the boundary between these respective properties and denying the Roys’ claims for inverse condemnation. For the following reasons, we reverse that judgment and remand for a determination of the appropriate damages.

Facts

The Roys and Sheriff Belt own adjoining properties situated in Avoyelles Parish. In 1978, 1986, and 1992, Sheriff Belt or his predecessor built three buildings which the Roys claim encroach upon their property. The chain of title for both properties is derived from a common ancestor in title, J. Clifton Cappel, who acquired 100 arpents, more or less from Clarence LaFargue on February 24, 1896. In February 1904, November 1904, and February 1906, Pierre Poret purchased three parcels of land from Mr. Cappel totaling 29.5 acres. Sheriff Belt’s title derives from this chain of title. In 1906, Louis Coco purchased 34.42 acres from Mr. Cappel, and in 1956, Van L. Roy, the Roys’ husband and father, purchased 32.5 of those 34.42 acres from Ernest M. Coco, Louis’ transferee. The Roys’ title derives from this chain of title.

|2The Roys contend that the boundary between their property and Sheriff Belt’s property is north of Bayou Sauvage, while Sheriff Belt contends that the boundary is the center of the bayou.

Pierre Poret’s first acquisition from Clifton Cappel was on February 26, 1904, when he purchased four acres. He next acquired ten acres on November 23, 1904. Then, by sale dated February 20, 1906, he acquired an additional 15.5 acres from Mr. Cappel. The southern boundaries of these properties are described as: “Bounded ... South and East by Vendor”; “South by Vendor and Mrs. Victor Moreau”; and “South by vendor,” in the respective deeds.

In the transfers from Mr. Cappel to Louis Coco, Louis to Ernest Coco, and Ernest to Van L. Roy, the northern boundary is described as: “bounded on the north by W.S. Edwards, F. Moreau, and Poret”; “bounded on the north by W.H. Edwards, P. Gauthier, L.P. Gremillion, and P.L. Po-ret”; and “bounded on the north by Pierre L. Poret and northwest by Emeric G. La-borde,” respectively.

On April 20, 1964, a Judgment of Possession was signed in the Succession of Pierre L. Poret and Eliza Bordelon Poret. That same day, the Porets’ heirs partitioned their parents’ property, dividing it into lots and drawing for designated lots; however, one lot, Lot 6, was not allotted and remained owned in indivisión by the heirs. The southern boundary of the property is described in each document, in part, as “Bayou Moreau.” In conjunction with the Judgment of Possession and the partition, a plat was prepared by surveyor, Ralph L. Gagnard, which was recorded and referenced in the property descriptions used in both of these documents. This survey, dated [aMarch 28, 1964, depicts a line along a fencé/tree line in the southern portion of the survey. South of this line is a wooded area through which a bayou runs. The land situated south of the bayou is labeled “Van L. Roy.” The property between the fence/tree line and the bayou is not labeled.

In 1974, the Poret heirs sold Lot 6 to Charles A. Riddle, Jr. and Patrick E. Lem-oine. The act of sale by four of the five Poret heirs references the 1964 Gagnard survey and describes the property as being bounded “on the south by the Estate of Van Roy (formerly Ernest Coco), on the East by Estate of Van Roy (formerly Ernest Coco) and T & P Railway.” The sale by the fifth Poret heir only references the 1964 survey. Some time after the sale, Mr. Riddle and Mr. Lemoine began clearing the wooded area between the fence and the bayou. At that time, a portion of the fence along the tree line was removed. Remnants of the fence were found when the surveys were conducted for this litigation.

In August 1976, Mr. Lemoine and Mr. Riddle’s wife and heirs entered into an option to purchase with the Avoyelles Parish Police Jury (Police Jury), which provided for the sale of six acres situated in Lot 6, described as “bounded on the south by Van L. Roy and/or Rudolph Haydel.” The judgment of possession in Mr. Riddle’s succession describes the Riddles’ interest in Lot 6 by referencing Mr. Gagnard’s 1964 survey and stating the property was bounded on the south by the “Estate of Van L. Roy,” yet the November 15, 1976 sale of the property describes the southern boundary as “Bayou Sauvage.” In connection with this sale, Mr. Gagnard prepared a survey of these six acres, which are situated east of what is now Government Street. This survey differs from the 1964 survey as the calls and |4distances along the southern portion of this acreage are.on the bayou, not the fence/tree line north of the bayou.

Thereafter, on May 18, 1978, and June 22, 1978, Mr. Gagnard surveyed another portion of Lot 6 also owned by the Riddles, which is situated west of Government Street. These surveys are similar to the March 28, 1964 survey as they depict the southern boundary of the Poret property as being north of the bayou; the bayou is not even depicted on the June 1978 survey.

In March 1989, the Riddles sold an eleven acre tract to Sheriff Belt. The property, which is also west of Government Street, is depicted on a survey dated January 19, 1989 prepared by Jessie Lachney, a registered surveyor, who is Sheriff Belt’s expert in this matter. The survey is of the same property depicted on Mr. Gagnard’s May 1978 survey and, like that 1978 survey, the southern boundary is shown north of the bayou.

On March 24, 1989, Mr. Lachney surveyed the Avoyelles Parish Jail Facilities which is east of Government Street. Unlike Mr. Gagnard’s 1964 and 1976 surveys and his own 1978 survey of the property on the west side of Government Street, this survey depicts the bayou as the southern boundary. Mr. Lachney testified that he recognized the differences between Mr. Gagnard’s 1964 and 1976 surveys of this property, but he chose to follow the later survey.

In Mr. Lachney’s opinion, the bayou is the southern boundary of the Poret property. He explained that he believes the line north of the bayou in Mr. Gagnard’s 1964 survey was a traverse line. He testified that a traverse line is a line sometimes used as a “working line” or to indicate a stream, bayou, or river. On cross-examination, he admitted that he did not know there was no reference in the Poret 1 ¡¡chain of title to the southern boundary of the property being a bayou and that he did not attempt to confirm whether the acreage calculated by Mr. Gagnard for Lot 6 on his 1964 survey extended to the center line of the bayou. He also admitted there is nothing on Mr. Gagnard’s 1964 survey which specifically indicates that the line north of the bayou is a traverse line. However, he identified three facts which indicated to him that the bayou is the southern boundary: 1) Mr. Gagnard showed the bayou on the survey; 2) there was no land hook showing that the Roy property south of the bayou extended north of the bayou; and 3) the survey conflicts with the Judgment of Possession. He testified that, when he prepared the 1989 survey of the area east of Government Street, he noticed the difference between the 1964 survey and the 1976 survey, but he relied on the 1976 survey, believing Mr. Gagnard had a different intent when he prepared the latter survey. However, he did not explain what that difference may have been. He concluded that the line on the 1964 survey was not the property line because Mr. Gagnard’s later surveys differed in that respect.

James Townsend surveyed the Roys’ property and testified as them expert. He testified that he was informed by the Roys before he began his work that they believed their property extended north of the bayou. After surveying the property at issue, he advised the Roys that the jail encroached on 0.90 acres of their property. He explained that he used the 1964 Gag-nard survey to begin his work and relocated the calls and distances on that survey. At trial, he identified those calls and distances on his survey. He further testified that he reviewed all of the deeds in the Roys’ name and did not find any deed which defined their northern boundary as the bayou; however, he admitted he did not run the chain of title on Sheriff Belt’s property. In Mr. Townsend’s opinion, the 1964 Gagnard survey does not depict the southern | ^boundary of Lot 6 extending to the center of the bayou, noting there is a difference in acreage in the 21.36 acres designated on that survey for Lot 6 and the actual acreage to the bayou, 24.76 acres.

Sheriff Belt filed a third party claim against the Police Jury, which in turn filed a third party demand against the Riddles and the Lemoines.

Following the trial of this matter, the trial judge recused himself, and the supreme court appointed another judge to decide the case. After reviewing the record, the judge determined that the boundary between these properties is the center of the bayou, finding it was the “historical boundary” between them. The Roys appeal, assigning two errors: the determination of the boundary and the trial court’s failure to award them damages.

Standard of Review

The parties agree that the manifest error standard of review does not apply to this appeal because the judge who decided the case was not the judge who tried it. See Walker v. Union Oil Mill, Inc., 369 So.2d 1043 (La.1979).

Discussion

The Boundary Action

The burden of proof in a boundary action is divided. Russell v. Producers’ Oil Co. (1918), 143 La. 217, 78 So. 473; Carroll v. Holton (La.App. 1 Cir.1985), 472 So.2d 212. In a boundary action, the Civil Code instructs the court to “fix the boundary according to the ownership of the parties; if neither party proves ownership, the boundary shall be fixed according to limits established by possession.” La.Civ.Code art. 792. “When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties trace their titles to a common author | preference shall be given to the more ancient title.” La.Civ.Code art. 793. Lastly, La.Code Civ.P. art. 3693 instructs, “After considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the 'boundary between the contiguous lands in accordance with the ownership or possession of the parties.”

Evidence of possession by the Roys, the Lemoines and Riddles, and the Porets was presented at trial. However, the evidence presented showed only sporadic activities on the disputed property by these parties or their representatives, which were insufficient to satisfy the possession requirements in a boundary action. See Martin Timber Co. v. Taylor, 187 So.2d 196 (La.App. 3 Cir.1966); William T. Burton Indus., Inc. v. McDonald, 346 So.2d 1333 (La.App. 3 Cir.1977). As political subdivisions of the state, neither Sheriff Belt nor his predecessor in title, the Police Jury, can acquire property through acquisitive prescription. King’s Farm, Inc. v. Concordia Parish Police Jury, 97-1056 (La.App. 3 Cir. 3/6/98), 709 So.2d 953, writ denied, 98-1450 (La.9/18/98), 724 So.2d 748. Therefore, acquisitive prescription had to have accrued prior to the 1978 purchase of the property by the Police Jury to benefit Sheriff Belt. As discussed above, it did not.

We find the best evidence of the boundary between these properties, as reflected by the parties’ titles, is Mr. Gagnard’s 1964 survey which depicts the southern boundary of Sheriff Belt’s property north of the bayou. See also Mr. Gagnard’s 1976 survey and James Townsend’s 1996 survey. We have been mindful throughout our review of the basic rule of property law that, where there is a conflict between a worded description and a survey, the survey prevails. Casso v. Ascension Realty Co., 195 La. 1, 196 So. 1 (1940). See also Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 99-1444 (La.App. 3 Cir. 5/24/00), 770 So.2d 786, writ denied, 00-2568 (La.11/27/00), 775 So.2d 448. This is particularly true with respect to the Poret Judgment of Possession and partition and the 1964 survey, which is the' first survey of all of Pierre Poret’s property-

Reviewing the evidence, especially the conflicting surveys and the conflicting expert testimony, we found the following evidence persuasive. No property description in either chain of title prior to the Poret Judgment of Possession and partition designates the bayou as a boundary. The 1976 conveyance by the Poret heirs and the 1978 option to purchase in favor of the Police Jury describe the southern boundaries of those properties as property owned by Van L. Roy not a bayou. There is no indication by Mr. Gagnard on the 1964 survey that the disputed line is a traverse line and not the boundary line. The acreage of Lot 6 on Mr. Gagnard’s 1964 survey is calculated as 21.36 acres; if the bayou was the southern boundary of Lot 6, the acreage would be 24.76 acres. Last, but perhaps most important, are the differences between the surveys of the property west of Government Street, where the boundary is depicted north of the bayou, and the surveys of property east of Government Street, where the bayou is depicted as the boundary. These differences are illogical and inexplicable in light of the fact that these properties were contiguous until Government Street, which is fifty feet wide, was dedicated.

Inverse Condemnation

Our determination of the boundary, coupled with the nature of the permanency of the encroachments on the Roys’ property, requires that we address the Roys’ claims of inverse condemnation. In Williams v. City of Baton Rouge, 98-1981, 98-2024, pp. 6-7 (La.4/13/99), 731 So.2d 240, 246, the supreme court addressed the concept of inverse condemnation, explaining:

“[SJince a taking or damaging of property may in fact occur without expropriation proceedings by a public body through oversight or lack of foresight, there must be some proceeding whereby an owner may seek redress when his property is damaged or taken without the proper exercise of eminent domain.” Reymond [v. State Through Dep’t of Highways, 255 La. 425, 231 So.2d 375, 383 (La.1970)] (emphasis added). “Such an action is often referred to as ‘inverse condemnation’, and our Article 1, Section 2, and Article 4, Section 15, support a proceeding in the nature of inverse condemnation by such an affected property owner.” Id.
In order to determine whether property rights have been “taken” under La. Const. Art. 1, Sec. 4, which provides that property shall not be “taken or damaged” by the state or its political subdivisions except for public purposes and with just compensation paid to the owner, the court must (1) determine if a right with respect to a thing or an object has been affected; (2) if it is determined that property is involved, decide whether the property has been taken or damaged in a constitutional sense; and (3) determine whether the taking or damaging is for a public purpose under Article 1, Sec. 4. Constance v. State Through Dept. Of Transp. and Development Office of Highways, 626 So.2d 1151, 1157 (La.1993); State Through Dept. Of Transp. and Development v. Chambers Investment Co., Inc., 595 So.2d 598 (La.1992).

The Roys’ property has been “taken” as the Avoyelles Parish Jail is built on 0.90 acres of it, and they are entitled to inverse condemnation damages. The compensation for landowners in inverse condemnation proceedings is the same as in expropriation cases: the owner is entitled to market value of his property and severance damages. Gray v. State Through Dep’t of Highways, 250 La. 1045, 202 So.2d 24 (1967). The value of appropriated property is fixed as of the date of its appropriation. Bd. of Levee Comm’rs of Orleans Levee Dist. v. Aurianne, 229 La. 83, 85 So.2d 39 (1955); Jacobs v. Kansas City, S. & G. Ry. Co., 134 La. 389, 64 So. 150 (1913). Interest accrues on that value from the time of the taking. A.K. Roy, Inc. v. Bd. of Comm’rs for Pontchartrain Levee Dist., 238 La. 926, 117 So.2d 60 (1960).

Earl Waltman, a real estate appraiser, appraised the Roys’ property. He testified at trial regarding his appraisals which he conducted in December 2001 and April 2002. The buildings which encroach on the Roys’ property were built in 1978, 1986, and 1992; hence, there were three appropriations. Accordingly, this matter must be remanded for a determination of the value of each piece of property at the time it was appropriated and whether the Roys are entitled to severance damages.

Landowners are also entitled to recover damages under La.Civ.Code art. 2315 for mental anguish, loss of use, loss of enjoyment, irritation, anxiety, discomfort, and embarrassment when their property is appropriated. Williams, 731 So.2d 240. The Roys were not aware of the appropriation of their property until 1996. Constance Roy was the only plaintiff who appeared and testified at trial. She testified that she moved from the property in 1986. On the issue of damages, she testified that she did not like it that someone had taken something which belonged to her. We find this insufficient to justify an award of damages under La.Civ.Code art. 2315. The other plaintiffs did not appear and testify at trial; therefore, they did not bear their burden of proof on this issue. Keaty v. Moss Motors, Inc., 93-1452, 93-1453 (La.App. 3 Cir. 6/1/94), 638 So.2d 684, writ denied, 94-2211 (La.11/11/94), 644 So.2d 399.

Costs

The general rule is that fixing a boundary is beneficial to both parties and the costs should be shared equally. Deshotel v. Lachney, 465 So.2d 974 (La.App. 3 Cir.1985). Accordingly, we assess the costs for the boundary action equally between the Roys and Sheriff Belt. All costs associated with the inverse condemnation proceeding are assessed to Sheriff Belt.

Disposition

The judgment of the trial court is reversed. The boundary between the Roys’ property and Sheriff Belt’s property is found to be that depicted on surveys prepared by Ralph Gagnard dated March 28, 1964 and James Townsend dated September 16, 1996. This matter is remanded for further proceedings to determine the Roys’ damages for their property which was appropriated. All costs of the boundary action are assessed equally between the parties. All costs of the inverse condemnation proceeding are assessed to Sheriff Belt.

REVERSED AND REMANDED.

      . The Law Enforcement District of Avoyelles Parish, Louisiana, was represented herein by Sheriff Bill Belt, Avoyelles Parish Sheriff. For convenience and ease of discussion, The Law Enforcement District of Avoyelles Parish, Louisiana, is hereinafter referred to as Sheriff Belt.

      . Documents in the chain of title refer to Bayou Moreau, Bayou Savage, and bayou. Surveys of the properties depict a Bayou Sau-vage and an unnamed bayou. Witnesses testi-fled that Bayou Moreau and Bayou Sauvage are probably one and the same. For ease of discussion and consistency throughout our opinion, the term "bayou” is used.


author: | .FITZSIMMONS, J.

text:
    OPIATE REPLACEMENT THERAPY CENTERS OF AMERICA, INC. v. The STATE of Louisiana Through the DEPARTMENT OF HEALTH AND HOSPITALS, Bureau of Health Standards.
    No. 2003 CA 0643.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2004.
    Rehearing Denied April 6, 2004.

      Felix J. Sternfels, Napoleonville, Counsel for Plaintiff/Appellee Opiate Replacement Therapy Centers of America, Inc.
    David L. McCay, Michael J. Coleman, Baton Rouge, Counsel for Defendant/Appellant Louisiana Department of Health and Hospitals, Bureau of Legal Services.
    Kyle M. Green, Marrero, Counsel for Intervenor/Appellant Dr. Alex John, Jr.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   | .FITZSIMMONS, J.

The State of Louisiana, through the Department of Health and Hospitals, Office of Addictive Disorders (department), functioned as the State Authority for Methadone (SMA) clinics. The department, in fulfilling its duty as SMA, required an application be submitted by all prospective opiate replacement therapy clinics before a license could be granted by another department agency, the Bureau of Health Services Financing, Health Standards Section. Upon receiving a request to operate an opiate replacement therapy or methadone program, the department sent each applicant a “standard” letter, which required the applicant to follow an established protocol pursuant to agency regulations. See LAC 48:1.7443 A & 48:VII.501 B. Specifically, since about 1980, an applicant was required to submit sufficient information to establish that a “need” existed in the community; that is, the area that would be reasonably served by the proposed treatment facility. The informational report was called a “needs assessment.” If a true need in the community was shown, the need was certified by the department and approval to establish a facility or clinic was given. A license could be subsequently granted, if other federal and state requirements were met. If no need was shown, the application was denied.

In October of 2000, the department approved Opiate Replacement Therapy Centers of America, Inc.’s (ORTC) request to establish the Breaux Bridge Treatment Center, contingent on all other state and federal requirements. Subsequently, by letter dated November 21, 2000, Dr. Alex John, Jr., Ed.D., requested permission to open a similar clinic in the same general Lafayette area. After review of the “needs assessment” submitted by Dr. John, the department found that Dr. John failed to demonstrate a need for two clinics in the area that would be reasonably served. Specifically, the application was denied based on the | ¡¡capacity of the existing clinics within the area and their occupancy rate. On February 7, 2001, the department denied Dr. John’s request.

Effective April 3, 2001, ORTC was granted a license to “operate at the geographical address listed on the enclosed license.” In May of 2001, Dr. John asked for reconsideration of his denied application. While reviewing the request for reconsideration, the department was advised by its legal counsel that it did not have statutory authority to require a certification of need based on a needs assessment. In response to that decision, the department sought to impose a moratorium on the granting of licenses. However, before the moratorium became effective, the department reversed its earlier denial of Dr. John’s application based only on the assumed lack of authority, not a new finding of need. Dr. John’s application to establish a clinic in Opelousas, without a needs certificate, was approved in June, 2001. The moratorium went into effect on July 1st.

On November 2, 2001, ORTC sued for injunctive relief. It challenged the department’s finding that the “needs” regulation' and protocol exceeded statutory authority. By a supplemental and amending petition, ORTC converted the proceeding to one for declaratory judgment. It re-affirmed its allegation that the “needs” regulation was valid and asked that the approval of Dr. John’s application be declared null and void for failure to meet the regulatory standard. Dr. John intervened.

After trial, the trial court found that the department had the authority to obtain a “needs assessment,” and to require a certification of need before approval to operate a clinic or facility could be given. Based on those findings, the court ruled that the department’s approval to operate a treatment facility, without a certification of need, was an abuse of discretion. Therefore, the approval of Dr. John’s application was declared to be null and void. The matter was then remanded to the department for further proceedings.

|4The department and Dr. John appealed. Although the constitutionality of the applicable statutes or regulations was not directly attacked at trial, appellants essentially argue that: (1) the department did not have legislative authority to promulgate a regulation requiring a needs assessment or to deny approval based on a finding of “no need”; (2) without specific quantitative and qualitative criteria for the needs determination, the process is too subjective and the department’s regulation could not be implemented; and (3) without a valid needs assessment requirement, the department’s decision to grant was within its discretion and not arbitrary or capricious.

The following legal precepts, in pertinent part, are applicable to the issues: La. R.S.-40:1058.2

A. The Department of Health and Hospitals shall promulgate rules, regulations, and standards governing providers of substance abuse/addiction treatment services. The rules, regulations, and standards shall be promulgated in accordance with the Administrative Procedure Act and shall include at a minimum the following:
(1) Procedures to ensure the health, safety, and well-being of clients.
(2) Procedures to ensure that clients receive optimum treatment in order to achieve recovery.
(3) Procedures ' which allow the department to monitor facilities.
(4) Strategies to determine treatment priorities, as well as inpatient and outpatient criteria.
(5) Criteria to assure access of care without overutilization of services.
(6). Protocols to assure uniform and quality assessment, diagnosis, evaluation, and referral to appropriate level of care.
(7) Procedures to assure operational capability and compliance.
(8) Procedures for the application process.
|r(9) Procedures for annual on-site surveys and complaint investigations.
(10) Procedures to assure that only qualified personnel are providing care.
(11) Procedures to assure that delivery of services shall be cost-effective and in conformity with current standards of practice.
(12) Procedures to assure confidentiality of clients’ records.
La. R.S. 40:1058.3
A. (1) Application to operate a substance abuse/addiction treatment facility shall be made to the department on application forms furnished by it and shall contain such information as is reasonable for the agency to require. The application shall be accompanied by a license fee.
La. R.S. 40:1058.5
A. An application for a license may be denied for any of the following reasons: (1) Violation of any of the minimum standards prescribed by this Part and by the department.

The traditional practice of the department, which was mirrored in the department’s published standards to operate a methadone program, required “[ejvidence of need/community support for the methadone maintenance program .... ” LAC 48:VII.501 B(2).

If the direction is clear and minimum standards are outlined, the legislature may certainly delegate authority to an administrative agency to determine facts and carry out the terms of the legislation. Schwegmann Bros. Giant Super Mkts. v. McCrory, 237 La. 768, 788, 112 So.2d 606, 613 (1959); State v. All Pro Paint & Body Shop, Inc., 93-1316, pp. 6-7 (La.7/5/94), 639 So.2d 707, 711-12. The minimum standards need not be express if they may be reasonably inferred from the statutory scheme. All Pro Paint & Body Shop, Inc., 93-1316 at p. 13, 639 So.2d at 716. The requirements of clear intention and minimum standards ensure the regulatory scheme constitutes a valid exercise of the state’s imperative to |r,protect the health, welfare, and safety of the public. All Pro Paint and Body Shop, Inc., 93-1316 at p. 12, 639 So.2d at 715; see La. Const. Preamble & art. 1.

In interpreting the meaning of legislative provisions, the “words of a law must be given their generally prevailing meaning.” La. C.C. art. 11. If the law is clear and does not lead to absurd results, “the law shall be applied as written .... ” La. C.C. art. 9. If the meaning is not clear, the law should be interpreted to fulfill the goal of the legislation. La. C.C. art. 10. If the words used in the law are ambiguous, “the meaning must be sought by examining” all the provisions of the law and in the context of the statutory scheme. La. C.C. art. 12.

The criteria for judicial review of an agency decision on the validity or applicability of a rule is found in La. R.S. 49:964 G. See La. R.S. 49:962. Generally, the manifest error test is applied to the findings of fact by the agency or department and the arbitrary and capricious test is applied to the department’s conclusions and exercise of its discretion. See La. R.S. 49:964 G. The same standard of appellate review is used by both the trial and appellate courts, without the traditional deference to the factual determinations made by the trial court. Blair v. Stalder, 99-1860, p. 9 (La.App. 1 Cir. 1/31/01), 798 So.2d 132, 139. However, if the trial court takes additional evidence beyond that submitted at the agency level, deference to its determinations of fact would be appropriate. See La. R.S. 49:963 B.

LEGISLATIVE AUTHORITY

Louisiana R.S. 40:1058.2 provides the minimum “[standards for substance abuse/addiction care” to be governed by departmental regulations and rules. One of the legislative directives to the department is to insure “access of care without |7overutilization of services.” La. R.S. 40:1058.2 A(5). Additionally, the legislature directed the department to “ensure the health, safety, and well-being of clients, ... monitor facilities,” provide for an “application process,” and “assure that delivery of services shall be cost-effective and in conformity with current standards of practice.” La. R.S. 40:1058.2 A(l), (3), (8) & (11). The department was also given the authority to obtain information it reasonably required for the application process and to conduct an “on-site survey” to insure that “minimum standards” were met before issuance of a license. La. R.S. 40:1058.3 A(l); R.S. 40:1058.2 A(9); R.S. 40:1058.4 A. If the “minimum standards” set by the department are not met, the department may deny an application for a license. La. R.S. 40:1058.5 A(l).

Considering the provisions of La. R.S. 40:1058.2 A within the context of the statutory scheme, and using the common meanings of the words of the provisions, we find that the overall legislative goal is to offer safe, reasonable, adequate access of care, without overuse or abuse of the services. We interpret these multiple requirements as a mandate for a balanced approach to the opening of treatment facilities. To implement these goals, the legislature bestowed on the department the authority to set minimum standards based on the directives found in La. R.S. 40:1085.2, including the requirement that services must be “cost-effective and in conformity with current standards of practice.” La. R.S. 40:1058.2 A(ll). According to the unre-butted testimony at trial, the then current national standards of practice for offering services to addicts, and the state standards since 1980, included a finding of need and consideration of the impact of the facility on the community. The ultimate goal of all legislation must be to provide for the common good, and the safety and general welfare of the people of this state. See La. Const. Preamble & art. 1. By providing not only for adequate, cost-effective services, without overutilization or abuse, but also for the health and safety of the Lclients and that of the community, the needs assessment and certification are instrumental in fulfilling both the legislative will and the overriding constitutional imperative. We agree with the trial court that the safety of the public is a particularly important consideration when administering methadone, a highly addictive schedule II controlled substance, in a community setting. Unlike a pharmacy, thése treatment facilities provide'an alternative drug, but a still addictive one, exclusively to former opiate addicts. The importance of obtaining and reviewing community needs information in the licensing process is emphasized by the trial court’s finding that saturation of services could lead to overutilization and abuse of services by patients and create a danger to public safety. For example, unrebutted evidence was submitted to show that abuse or overuse of the services by the patients could result in unnecessary addiction to methadone. See La. R.S. 40:964, Schedule II, B(ll). The testimony also showed that dual registrations, by the same patient at different treatment facilities, are made to obtain extra methadone for illegal sale to the public. By promulgating the regulation found in LAC 48:VII.501 B(2), which included the department’s traditional practice of requiring evidence of need and community support, the department sought to insure the statutory mandates. The regulation and protocol also provided for the common good' — -an obligation often forgotten in the fragmented society of today. The practical implementation of the regulation is through submission of the needs assessment by the applicant, review by the department, and the requisite issuance of a certification of need before the applicant receives approval to establish a facility and proceed toward licensure. Such procedures also protect the safety and welfare of the people of this state.

This record supports the finding that the department’s regulation and protocol, requiring a showing of need before approval of an application, did not exceed the statutory authority granted to the department. From our review, we find |9no evidence of overreaching or departmental requirements beyond the legislative authorization. We also agree that the department’s conclusion, that the regulation was invalid and would not be applied to Dr. John’s application, affected substantial rights of ORTC, was an abuse of discretion, and was not sustainable under the record. See La. R.S. 49:964 G(5) & (6). Essentially, the department breached its obligation to provide for the common good and protect the health and welfare of the public.

GUIDELINES

The “standard” letter to applicants requesting a needs assessment required the general number of patients in need of treatment and identification of established treatment programs in the state and surrounding areas. The needs assessments in the record included evidence of potential clients; the location, capacity, and occupancy rates of established service programs; and the location and number of clients that could be treated at the proposed facility. The submitted information was reviewed by a department employee for a determination of whether the community to be served actually needed the services.

From our review of the record, and notwithstanding the absence of more definitive written guidelines, we agree with the trial court’s finding that the “needs” requirement should have been applied to Dr. John. In this particular case, the letter and protocol were minimally sufficient. In addition, the department’s initial determination, that the information submitted by Dr. John did not show a need for another facility in the community, was a reasonable one and supported by the information contained in the needs assessment.

Obviously, different communities, whether urban or suburban, have varying numbers of residents, potential clients, and established clinics or treatment facilities. No set number of clinics would serve the needs of all types of communities. While more extensive and objective written procedures than a |in“standard” letter may be prudent, the absence of more definitive qualitative or quantitative guidelines did not render the requirements of LAC 48:VII.501 B(2) invalid. And certainly, the lack of more extensive guidelines did not invalidate the department’s legislative mandate to insure the services offered by the facilities met minimum standards based on current practices and did not lead to overutilization or abuse of services. Even assuming appellants’ allegation of inadequate guidelines or an overly subjective review process had merit, such weaknesses support a moratorium or a denial of the application, not a grant in derogation of the statutory mandates. See La. R.S. 40:1058.5 A. From our review, we find that the argument based on inadequate guidelines does not provide a reasonable or sufficient basis for the department’s failure to apply its “needs” regulation and protocol.

Finally, we do not agree with appellants’ arguments that the record here contains sufficient evidence to prove that commerce and competition were imreason-ably or improperly curtailed by the needs requirement. Nor do we agree that the use of the word “may,” in connection with the denial of applications for licenses under La. R.S. 40:1085.5 A, allows the department to ignore its own important requirement of a needs assessment in the application process or those of the state legislature.

For these reasons, we affirm the judgment of the trial court. The costs of the appeal, $831.35, are assessed equally to defendant-appellants, Louisiana Department of Health and Hospitals and Dr. Alex John, Jr.

AFFIRMED.

FOIL, J., concurs in the result.

      . The department reviewed its regulation and found that it exceeded statutory authority. We are satisfied from our review of the record that no remedy would be forthcoming from a contested, adjudicated case, and that a minimal showing of irreparable harm was made. In addition, neither party disputed that such harm would occur if the rule was improperly applied. See La. R.S. 49:963 D; Bueto v. Video Gaming Division, Office of State Police, Department of Public Safety, 94-0334, p. 4 (La.App. 1 Cir. 3/4/94), 637 So.2d 544, 546.