author: SAUNDERS, Judge. PICKETT, Judge,

text:
    Donald W. CUTTS, et ux. v. Jeffrey CUTTS, et al.
    No. CA 2006-33.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      Richard E. Lee, Pineville, LA, for Defendant/Appellee, Jeffrey Cutts and Karee Feazell Cutts.
    Randal Bryan Tannehill, Tannehill & Sylvester, Pineville, LA, for Plaintiffi'Ap-pellant Donald W. Cutts and Gwendolyn Gail Cutts.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

|, Paternal grandparents were awarded custody of a minor child pursuant to a consent judgment. The child’s biological mother requested that the child be returned to her custody. The grandparents refused and the mother filed a rule to change custody. The trial court awarded custody to the child’s mother. This appeal followed. We affirm.

FACTS AND PROCEDURAL HISTORY

On March, 11, 2003, Donald and Gwendolyn Cutts filed a petition for custody of their granddaughter, Kaitlin Marie Cutts. Kaitlin was born on August 5, 1997 and had been living with her grandparents for approximately three years. Jeffery Wayne Cutts and Karee Feazell Cutts, the biological parents of Kaitlin, were the named defendants. On March 20, 2003, Karee and her father met with the attorney for appellants and signed an acceptance of service and waiver of citation. A consent judgment was signed granting Donald and Gwendolyn Cutts custody of Kaitlin. Ms. Feazell was allegedly informed that by so doing it would be easier to regain custody of her child at a later time.

Subsequently, on July 25, 2005, Ms. Fea-zell’s attorney wrote to appellants informing them that Karee wished to revoke her voluntary transfer of custody. Appellants refused to return the child. Karee then filed a rule to change custody of Kaitlin. After a hearing on the rule, the trial court concluded that the previous consent judgment was a voluntary transfer of custody pursuant to which Ms. Feazell could request that Kaitlin be returned to her. This appeal followed.

ASSIGNMENT OF ERROR

1) The trial court committed manifest error when it determined that the previous consent judgment transferring custody of the minor to her paternal grandparents was a voluntary transfer of custody which could simply be withdrawn by the natural mother without a showing that there [ahas been a material change in circumstances since the custody decree was rendered and whether a change in custody is in the best interests of the minor child.

STANDARD OF REVIEW

Findings of the trial court are reviewable on appeal, and the appellate standard of review has been clearly established. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

DISCUSSION

Appellants argue that the previous consent judgment is not a voluntary transfer of custody which allows the natural mother to revoke the transfer as provided for in La.Ch.Code art. 1523. They contend that the judgment should be treated as any other non-considered custody decree. As such, a showing that there has been a material change in circumstances and a change in the custody regime of the child would be in its best interests must be made to alter the regime. Because, appellants argue, appellees did not make this showing, the trial court’s judgment must be reversed. We disagree.

Appellants point to a previous case from this court wherein we held that a parent must show a material change in circumstances and that a change of custody is | am the best interests of the child to regain custody from a non-parent custodian awarded custody by a consent judgment. Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94), 640 So.2d 686. In Mayeux, however, we noted that the law governing situations like the one presently before us was unclear. Id. Accordingly, we examined jurisprudence from other circuits and relied upon the second circuit’s reasoning in Hill v. Hill, 602 So.2d 287 (La.App. 2 Cir.1992) in reaching our decision. Those cases arose, however, before the most recent revisions to the codal articles regarding custody became effective. Those revisions removed all other considerations and focused custody awards solely on the basis of the best interests of the child.

Following the revisions, the second circuit was presented with a factual scenario similar to that present in Hill, Mayeux, and the case sub judice. Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274. In that case, the court examined prior jurisprudence in light of the revisions to child custody laws. Id. The court stated that:

In the past, the law has been unclear as to who bears the burden of proof and what proof is necessary at a subsequent hearing by a parent against a nonparent to modify a “nonconsidered” custody decree, and the lack of clarity has caused this court difficulty. Compare Hill v. Hill, 602 So.2d 287 (La.App. 2d Cir. 1992), and Hughes v. McKenzie, 539 So.2d 965 (La.App. 2d Cir.1989), supra. However, we note that our prior decisions were made before the most recent revisions to the Civil Code’s child custody articles under which this appeal is decided. Article 131 now simply provides that the court shall award custody in accordance with “the best interest of the child”; this standard is the basic principle governing Articles 131 through 136. See Revision Comment (a) to Article 131. The articles that follow Article 131 are adaptations of the basic principle to specific circumstances relating to custody disputes, much as the articles following Article 2315 apply its basic tort principle to particular situations. Article 132 provides for application of the U“best interest of the child” standard in determining an award of custody as between the parents; Article 133 applies this same standard in reconciling custody disputes between parents and non-parents.

Article 133 states:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
In addition, Revision Comment (b) to Article 133 recognizes the parent’s paramount right to custody of his child as against any nonparent, stating: [I]t is clear that the heart of the parental primacy concept, the rule that a nonparent always bears the burden of proof in a custody contest with a parent, ... has not been affected by this revision.
The article and comment implicitly show that the best interest of the child often is best served by parental custody, even when the child has been in a “wholesome and stable environment” with a nonpar-ent. Thus, proof of “substantial harm” is needed to show otherwise.
The importance of a parent’s right to custody of the child is not a new idea in Louisiana jurisprudence. In his concurring opinion in State v. Peniston, 235 La. 579, 105 So.2d 228 (1958), the late Justice Tate recognized this most important right:
The right of a parent to his child existed before governments or other social institutions of mankind. This natural right proceeds from our Creator and exists independently of the state; the state ... does not in my humble opinion possess the power to take away in favor of a stranger the God-given right of a parent to his child, in the absence of the parent’s forfeiture or abandonment of such right or of positive detriment to the child.
Id. 105 So.2d at 232.
Indeed, the parent’s right to custody of the child is based |Bupon our society’s recognition of the special bond between the child and parent as a cornerstone of the continuing institution of the American family. Therefore, this concept of parental primacy and “the best interest of the child” standard are in essence two sides of the same coin: the same reasons supporting parental primacy also underlie the idea that the best interest of the child will be served by parental custody.
In recognizing these principles, we note that Article 134 provides factors for the court to consider in determining the best interest of the child. However, the Revision Comments to this article point out that these factors are illustrative, and not exclusive. Certainly the special considerations of the parent/nonparent custody dispute will not be properly weighed by looking only to the factors enumerated in Article 134, which were designed to aid in determining the best interest of the child primarily in disputes between two parents.
We therefore conclude that in determining the best interest of the child, the nonparent bears.the burden of proof in an action to change custody awarded by a “nonconsidered” decree, and must show that an award of custody to the parent would result in substantial harm to the child.

Id. at 1278-79. We find this reasoning compelling.

In LaPointe v. Menard, 412 So.2d 223 (La.App. 3 Cir.1982), we, like our brethren in the second circuit, adopted Justice Tate’s eloquent concurrence in State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958). Like the second circuit, we are bound by the revisions to the civil code articles regarding child custody. Given these considerations, we hold that a parent does not have to show a material change in circumstances and that a change is in the best interests of a child when disputing custody with a non-parent. Rather, the non-parent must show that an award of custody to the parent will result in substantial harm to the child. Accordingly, it is immaterial whether or not the consent judgment in this matter is deemed a voluntary transfer of custody because, in either case, the burden in a custody dispute between lfia parent and non-parent does not rest with the parent. This must be the case if we are to view parental primacy as a primary factor in determining the best interests of a child as set forth in Justice Tate’s watershed concurrence in State ex rel. Paul v. Peniston, 235 La. 579, 105 So.2d 228 (1958). Ms. Feazell, therefore, did not fail to meet her burden and the record is void of any evidence indicating that Kaitlin’s best interests would not be served by returning her to her mother. Rather, Ms. Feazell, unlike before, is now in the financial position to provide a stable home for her and her daughter. Accordingly, we find no merit in appellants assignment of error.

CONCLUSION

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

AFFIRMED.

PICKET, J., dissents and assigns written reasons.

PICKETT, Judge,

dissenting.

1 iThis is a custody dispute between the paternal grandparents and the mother of an eight-year-old child. The paternal grandparents, Donald and Gwendolyn Cutts, have had custody of the child since she was two. In 2003, they filed a Petition for Custody against the mother, Karee Feazell Cutts, and the father, Jeffrey Cutts, who were divorced. Both parents waived appearances and acquiesced to the request by Donald and Gwendolyn. On April 7, 2003, Karee, Jeffrey, Donald and Gwendolyn, as well as the presiding judge, filed a Consent Judgment which awarded Donald and Gwendolyn sole custody of the child subject to reasonable visitation by Karee and Jeffrey.

On August 1, 2005, Karee filed a Rule for Change of Custody seeking revocation of the consent judgment and a judgment awarding custody to her. Following a hearing, the trial court found that the Consent Judgment constituted a voluntary transfer pursuant to La.Ch.Code art. 1510 et seq. Thus, the trial court held that the Karee revoked the voluntary transfer by filing the Rule for Change of Custody, and awarded custody to Karee without any determination of the best interests of the child. The grandparents have appealed.

IsThe majority proposes to affirm the trial court. It decides that is unnecessary to determine if the original Consent Judgment is a voluntary transfer of custody or a non-considered decree. It finds that in either case, the grandparents bear the burden of proving that returning the child to Karee would cause substantial harm to the child, and that Karee does not bear the burden of proving that a change of custody is in the bests interests of the child. Finding the record devoid of evidence that Karee would do substantial harm to the child, the majority proposes to affirm.

The question becomes whether the consent judgment should be treated as a voluntary transfer. I have concluded that the answer is unequivocally no. The Children’s Code defines “voluntary transfer of custody” in article 1511(4) as follows:

“Voluntary transfer of custody” is a parent’s knowing and voluntary relinquishment of legal custody or guardianship to an agency, institution, or individual, subject to residual parental rights retained by the parent and under such terms and conditions that enable the child to receive adequate care and treatment.

Articles 1513 through 1519 explain the procedure to be used in effecting a voluntary transfer. Importantly for this case, article 1515 very specifically sets forth the form of the petition, and article 1516 requires that the individuals accepting custody execute an affidavit indicating that they accept any conditions upon which the transfer of custody is conditioned. Neither form was executed in this matter. The comments indicate that the purpose of these specific forms of pleading is to minimize later disputes. Furthermore, article 1520 is very specific as to the form of the judgment granting a voluntary transfer:

A. The court shall render a written judgment granting or denying the transfer of custody.
B. If the court grants the transfer of custody, the judgment shall recite that:
(1) All necessary parties are involved.
Ia(2) The transfer is knowing and voluntary.
(3) There is a legitimate purpose and a factual basis to support that purpose.
(4) All parties have been advised of and understand the nature and extent of the transfer, including any terms and conditions, and of their respective rights.
(5) The proposed change of custody is in the best interests of the child.
C.In addition, if the order grants the transfer of custody, the judgment shall order the transfer of custody and recite such terms and conditions as requested by the parties.

Even assuming, arguendo, that this could be construed as a voluntary transfer of custody, La.Ch.Code art. 1523 clearly states that if the custodians fail to return the child upon revocation of the voluntary transfer, there shall be a contradictory hearing at which the bests interests of the child are determined.

Since there is no voluntary transfer, the consent judgment is properly considered a non-considered decree, and should be analyzed under the provisions of La.Civ.Code art. 133. I would remand for a hearing to determine the best interests of the child. For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Gregory John RUIZ.
    Nos. KA 06-30, KH 05-1098, KH 05-1261.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      James Edward Beal, Louisiana Appellate Project, Jonesboro, LA, for Defendant Gregory John Ruiz.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff State of Louisiana.
    Jeffrey J. Troselair, Assistant District Attorney, Franklin, LA, for Plaintiff State of Louisiana.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   SAUNDERS, Judge.

hOn July 11, 2002, the State filed a bill of information charging Defendant, Gregory Ruiz of New Iberia, with possession of cocaine, second offense, in violation of La. R.S. 40:967 and La.R.S. 40:982, and distribution of cocaine, second offense, in violation of La.R.S. 40:967 and La.R.S. 40:982. Defendant’s first trial ended in a mistrial. The jury in his second trial found him guilty as charged on March 16, 2005.

Subsequently, Defendant was billed and adjudicated to be a second habitual offender. The court sentenced him to five years at hard labor for possession of cocaine, second offense, and to thirty years for distribution of cocaine, pursuant to his adjudication as a habitual offender.

Defendant now seeks review of his convictions. His appellate counsel assigns a single error on appeal. We observe that the appeal has been consolidated with two pro se writs, in which Defendant argues a combined total of five errors.

Based on our analysis of Defendant’s arguments, both counsel-filed and pro se, we vacate only the second-offense portions of Defendant’s convictions and order the entry of convictions for the underlying offenses.

FACTS:

Defendant sold cocaine to an undercover officer in Iberia Parish.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed on the face of the record for errors patent. After reviewing the record, we find that there are several errors patent involving the habitual offender adjudication and sentences. We find, however, that these errors are mooted by our finding, based on an assigned error, that the Defendant’s convictions are vacated only as to his second offender status. | ^Therefore, Defendant’s habitual offender adjudication and sentences are vacated and the case is remanded for further proceedings.

ASSIGNMENTS OF ERROR:

As already noted, two pro se writs have been consolidated with Defendant’s counsel-filed appeal. We will address the counsel-filed assignment first, then proceed to the pro se assignments.

ASSIGNMENT OF ERROR (Appeal, 06-30):

Defendant argues that the “ends of justice require the granting of a new trial” due to the supreme court’s ruling in State v. Skipper, 04-2137 (La.6/29/05), 906 So.2d 399. The Skipper court held that allegations of prior offenses must not appear in charging instruments of subsequent offenses. Id.

In the present case, the State charged Defendant with second-offense possession of cocaine and second-offense distribution of cocaine, both in violation of La.R.S. 40:967 and La.R.S. 40:982. The bill of information contained allegations that Defendant had been convicted of prior drug offenses in 1995. Defendant argues that this was improper under Skipper.

As defense counsel observes, in Skipper, the defendant filed a successful motion to quash the bill, which charged him under La.R.S. 40:982. As the trial court’s ruling included a declaration that the statute was unconstitutional, the prosecution appealed directly to the supreme court. In reaching its decision, the Skipper court explained:

Unlike criminal statutes which contain their own enhancement provisions for multiple violations of the same criminal act, La.R.S. 10:982 is a completely separate statute which does not in and of itself define a crime. In addition, La.R.S. 40:982, like La.R.S. 15:529.1, is applicable to numerous different and unrelated felonies. Although all of the felonies must be prohibited under the Uniform Controlled |sSubstances Law in order for La.R.S. 40:982 to be applicable for sentence enhancement, the felonies are not required to be violations of the same criminal act. La.R.S. 40:982 does not transform the prior felonies into an element of the most recently committed offense, nor does the statute effect the grade of the offense, the trial procedure for the adjudication of that offense or the consequences, except to allow enhancement of sentence.
In Louisiana, sentencing is strictly a function performed by the trial judge. See La.C.Cr.P. art. 871(A) (“A sentence is the penalty imposed by the court on a defendant upon a plea of guilty, upon a verdict of guilty or upon a judgment of guilt.”)(emphasis supplied). Thus, we find no rational basis or compelling state interest for a jury to be apprised of a defendant’s prior conviction during the trial of the second or subsequent drug-related offense for purposes of sentence enhancement under La.R.S. 40:982. This sentence enhancement provision can still be enforced without presenting the allegations of a defendant’s prior convictions to the jury before a determination of guilt for the instant offense is made.

CONCLUSION

For the foregoing reasons, we hold that La.R.S. 40:982 should be treated as a sentencing enhancement provision after conviction, like La. R.S. 15:529.1, and not as a substantive element of the presently-charged offense. Specifically, the allegations of the prior offense must not be placed in the charging instrument of the second or subsequent drug-rélated offense nor may evidence of the prior offense be presented to the jury determining the defendant’s guilt or innocence in the trial of the second or subsequent drug-related offense for the purpose of sentence enhancement under La.R.S. 40:982.
State v. Murray, 357 So.2d 1121 (La.1978), and any appellate decisions, as discussed herein, which stand for the proposition that a prior conviction must be placed in the charging instrument of the second or subsequent drug-related offense or proved to the jury in order to enhance the sentence of a drug-related felony under La.R.S. 40:982, are hereby overruled.
So finding, we hold that the trial court properly granted the motion to quash the bill of information in this matter as the state misapplied La.R.S. 40:982 by placing the allegation of the prior offense in the bill of information. The ruling of the trial court on the motion to quash is AFFIRMED.

Id. at 416-17, (footnotes omitted) (emphasis added).

|4We observe that Skipper’s language raises the possibility that Defendant’s convictions for second offenses under La.R.S. 40:982 constituted convictions for non-existent crimes. Defendant does not appear to have raised this specific issue below, and does not squarely present it on review. However, we observe that he attempted to bring Skipper to the trial court’s attention at sentencing, in oral pro se remarks. As Skipper was rendered on June 29, 2005, and the sentencing hearing was conducted on August 8, 2005, the latter date was likely Defendant’s earliest opportunity to raise Skipper. Further, the issue of conviction for a non-crime is discoverable by a mere inspection of the record. La.Code Crim.P. art. 920(2). We observe the Comments under La.Code Crim.P. art. 535, “Time to file motion to quash,” which state, in pertinent part:

(b) Paragraph A states the time for filing a motion to quash on fundamental grounds that are not waived by failure to urge them by a motion to quash. These grounds are:
(1) The offense is not punishable under a valid statute.
This is Ground (1) of Art. 532. It may also be urged as a ground for a motion in arrest of judgment under Art. 859(2), and is within the scope of appellate review without prior objection, under Art. 920(2), since it is an error discoverable by a mere inspection of the pleadings and proceedings and without the inspection of evidence.

Therefore, we will proceed with the analysis. However, to definitively state whether Defendant has been convicted of a non-crime, it is necessary to decide whether Skipper applies retroactively to the present case. When the Skipper ruling was issued, Defendant had been convicted and was waiting to be sentenced. The State argues Skipper should not apply retroactively, citing State v. Beer, 252 La. 756, 214 So.2d 133 (1968).

|sOur research has located no eases in which this aspect of Skipper has been discussed. In an unpublished case, State v. Butler, an opinion bearing docket number 05-297 (La.App. 3 Cir. 11/2/05), 914 So.2d 146, we recently discussed Skipper, although we did not address the retroactivity issue, or La.R.S. 40:982’s apparent status as a non-crime. In Butler, we stated, “Defendant’s conviction for possession of a controlled dangerous substance, second offense, is within the purview of State v. Skipper. Accordingly, potentially prejudicial other crimes evidence was put before the jury which constituted trial error in this case. However, this trial error is subject to a harmless error analysis.” Id. at 12, 906 So.2d at 408.

Thus, we found error, conducted a harmless error analysis, and affirmed the defendant’s conviction for possession of a controlled dangerous substance, second offense. As previously mentioned, the opinion did not address retroactivity. In view of the information presented, we now find that the omission of that issue, and thus, the decision to affirm the defendant’s conviction for second-offense possession of a controlled dangerous substance, was in error. We note that a writ application is pending before the supreme court in Butler; however, no action had been taken at the time this opinion was written.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292 (La.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 684 (1993), the supreme court traced the evolution of United States Supreme Court cases addressing the retroactivity of new rulings to cases final at the time the new ruling was rendered, as well as those that were pending on direct review at the time the new ruling was issued. In doing so, the court discussed Justice RHarlan’s suggestion of a new test for retroactivity:

In order to address the issue of retro-activity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area. The Court began from the premise that the “federal constitution has no voice upon the subject” of retroactivity. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court concluded “that the Constitution neither prohibits nor requires” that retroactive application be given to any new constitutional rule, and proceeded to hold that its decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 61[6] L.Ed.2d 1081 (1961), did not require retroactive application. In doing so, the Linkletter Court set forth a three-pronged analysis to determine retroactivity: (a) the purpose to be served by the new standards, (b) the extent of reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Linkletter test was applied to final convictions, and convictions at various stages of trial and direct review. Nonetheless, the application of the Linkletter test led to confusion, and was criticized as creating “incompatible rules and inconsistent principles.” Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1968)[ (1969) ] (Harlan, J. dissenting). In an attempt to resolve this problem, Justice Harlan suggested a new test in Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1970)[ (1971) ] (separate opinion of Harlan, J.).
Accordingly, he proposed a general principle whereby “all constitutional errors not waived or harmless are correctable on habeas and by defining such errors according to the law in effect when a conviction became final.” Id. at 692, 91 S.Ct. at 1179 (emphasis added). Under this general principle, new rules would not be given retroactive effect on collateral review, although they would be applied to cases pending on direct review. However, Justice Harlan created two exceptions in which he would give retroactive effect to new rules on collateral review. The first exception involved new substantive due process rules — i.e., rules placing certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe. The second exception referred to new rules which required observance of “those procedures that ... are implicit in the concept of ordered liberty” and altered our understanding of the “bedrock procedural elements” of a fair trial.
Ji- • • •
In the next several years, the Court began to gradually move away from Linkletter and toward the analysis suggested by Justice Harlan. The Court began by adopting Justice Harlan’s view that a new rule should be applied retroactively to all cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Id. at 1294.

The Supreme Court, in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), held, “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rules constitutes a ‘clear break’ with the past.”

The Taylor court also discussed pertinent Louisiana court rulings on retroactivity:

Turning now to our state law decisions on retroactivity, we find they have also recognized the principle that the constitution does not prohibit nor require courts to give retroactive application to criminal law decisions. State v. St. Pierre, 515 So.2d 769, 774 (La.1987). Our cases decided after Linkletter reflect the confused state of the law under that case.
Subsequently, our cases have followed Griffith v. Kentucky, supra, and have applied new rules to cases pending on direct review or not yet final. See State v. Sanders, 523 So.2d 209 (La.1988); State v. St. Pierre, 515 So.2d 769 (La. 1987). In fact, we recently applied the State v. Cage [583 So.2d 1125 (La.1991), cert. denied, 502 U.S. 874, 112 S.Ct. 211, 116 L.Ed.2d 170 (1991) ] rule to a case pending on direct appeal at the time Cage was rendered. State v. Smith, 600 So.2d 1319, 1326 n. 5 (La.1992).

Taylor, 606 So.2d at 1296 (emphasis added).

[sThe conviction in Taylor was final, and the rule at issue was not retroactively applied. However, we note two more recent cases in which the supreme court and second circuit, relying on Griffith, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, applied a new ruling to a case pending on appeal. See State v. Naquin, 00-291, 00-296 (La.9/29/00), 769 So.2d 1170 and State v. Ford, 26,422 (La.App. 2 Cir. 9/21/94), 643 So.2d 293. We find the State’s reliance on Beer is misplaced, since Beer, 252 La. 756, 214 So.2d at 133, belongs to the earlier Linkletter and Stovall line of jurisprudence. Beer, 214 So.2d at 135-36.

In light of the foregoing jurisprudence, we find that Skipper retroactively applies to Defendant’s case. When Skipper was decided, Defendant had been tried and convicted and was awaiting sentencing. Clearly, his conviction was not yet final and the foregoing jurisprudence supports the retroactive application of Skipper to his case. Thus, we find that it was error for the State to charge the prior offense in the bill of information.

We note that in Skipper, the defendant was originally charged by bill of information with .violating La.R.S. 40:967, and the state amended the bill to additionally charge a violation of La.R.S. 40:982. Thus, it appears the amended bill contained both charges. The trial court quashed the amended bill, and the supreme court affirmed that decision. If, indeed, the amended bill contained both charges, by affirming the trial court’s ruling and quashing the amended bill, the supreme court agreed that both charges should be quashed, rather than the La.R.S. 40:982 charge alone, perhaps suggesting that La.R.S. 40:967 and La.R.S. 40:982 are non-severable. In the past, the supreme court has held that only a portion of a bill which contained a duplicitous charge needed to be quashed, rather than the entire bill. See State v. Coody, 448 So.2d 100 (La.1984). Thus, the Skipper court’s decision to uphold the Squashing of the amended bill implies that the supreme court may view La.R.S. 40:967 and La.R.S. 40:982 as non-severable, although we note that the court stated: “Unlike criminal statutes which contain their own enhancement provisions for multiple violations of the same criminal act, La.R.S. 40:982 is a completely separate statute which does not in and of itself define a crime.” Id. at 416.

Thus, we choose to vacate only the second-offense portions of the convictions. One reason is that La.R.S. 40:982 contains no proscriptions against the most recent conduct charged, i.e. possession and distribution of a controlled dangerous substance. The statute states:

A. Any person convicted of any offense under this part, if the offense is a second or subsequent offense, shall be sentenced to a term of imprisonment that is twice that otherwise authorized or to payment of a fine that is twice that otherwise authorized, or both. If the conviction is for an offense punishable under R.S. 40:966(B), R.S. 40:967(B), R.S. 40:968(B) or R.S. 40:969(B), and if it is the offender’s second or subsequent offense, the court may impose in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
B. For purposes of this section, an offense shall be considered a second or subsequent offense, if, prior to the commission of such offense, the offender had at any time been convicted of any violation of this state, the United States, any other state of or any foreign country, relating to the unlawful use, possession, production, manufacturing, distribution, or dispensation of any narcotic drug, marijuana, depressant, stimulant, or hallucinogenic drugs.

La.R.S. 40:982.

Thus, La.R.S. 40:982 has no independent provisions that bear upon the most recent incident of possession and distribution that initiated the current proceedings, and upon which the current convictions partly rest. Further, the statute refers back to La.R.S. 40:967 and other substantive statutes. More than likely, it is for these reasons that the charging instrument cited La.R.S. 40:967, as well as La.R.S. 40:982. Considering that the statutes are separate from one another, that La.R.S. 40:982 has |Klno substantive provisions and no bearing upon the most recent conduct at issue, and that a substantive provision, La.R.S. 40:967, was also charged in relation to both counts, wé find that while the convictions for a second offense under La.R.S. 40:982 should be reversed as convictions for non-crimes, the substantive portion of the offenses under La.R.S. 40:967 is severable from the non-crimes of second-offense possession and second-offense distribution.

It is well-settled that in cases where Louisiana courts have reversed convictions for insufficiency of the evidence, they have authority to order the entry of convictions for lesser-included offenses where the records support such lesser convictions. Similarly, we vacate the second-offense portions of the convictions, but order the entry of convictions for the more recent conduct, under La.R.S. 40:967. In the instant case, the jury’s return of guilty verdicts for second offenses clearly required that it found him guilty of the more recent conduct, proscribed by La.R.S. 40:967.

We note State v. Wells, 01-1276 (La. App. 5 Cir. 3/26/02), 815 So.2d 1063, a pre-Skipper case that concluded that La.R.S. 40:982 was a sentencing enhancement provision. (Skipper cited Wells as part of its discussion of La.R.S. 40:982’s jurisprudential history). In Wells, the defendant argued that it was improper for him to have been sentenced as a second offender under La.R.S. 40:982, since no evidence of his prior conviction was introduced at trial. The fifth circuit agreed and also noted that the jury had not returned a conviction for a second offense. Instead, the jury had convicted the defendant only of the more recent conduct, pursuant to La.R.S. 40:967. Id. at 1066. The defendant also argued it was prejudicial to have the prior offense in the charging instrument. Treating La. R.S. 40:982 as a mere sentencing enhancement provision, the Wells court, held it was improper to include the predicate offense in the Inbill. However, Wells applied a harmless error analysis and, ultimately, determined the error was harmless. Ultimately, the Wells court affirmed the conviction for possession of cocaine, but remanded for resentencing. Id. at 1073-74.

The Wells decision suggests that the La.R.S. 40:982 portion of second-offense drug conviction and the La.R.S. 40:967 portion of such a conviction are severable. If they were not, the Wells court necessarily would have voided the La.R.S. 40:967-based conviction before it, due to the lack of evidence relative to La.R.S. 40:982.

If the provisions are severable, then a conviction for the second-offense portion of such a conviction could be vacated, but the invalidity of the second-offense portion of the conviction would not prevent us from ordering the entry of convictions under La.R.S. 40:967, based upon the most recent conduct.

We also note another fifth circuit case which discussed a situation analogous to the present case:

The defendant was originally charged with violating LSA-R.S. 14:84(1) and (4) and was subsequently convicted under both sections. . As the constitutionally deficient provision of LSA-R.S. 14:84 is clearly severable from the remaining sections of the statute, the finding that one portion of the statute was unconstitutional did not affect the validity of the section of the statute under which the defendant was convicted. The Louisiana Supreme Court held in State v. Williams, 400 So.2d 575, 580 (La.1981) “[t]he unconstitutionality of one portion of the statute, however, does not necessarily render the entire statute unenforceable. If the remaining portion of the statute is severable from the offending portion, this Court often strikes only the offending portion and leaves the remainder intact.” When a section of a law is stricken and the remaining sections are complete in themselves, and capable of being executed, wholly independent of the section which was rejected; and where there is no conflict in the penalties imposed and no confusion, the conviction of a defendant under a valid section will stand. State v. Taylor, 396 So.2d 1278 (La.1981); State v. McCoy, 395 So.2d 319 (La.1980); City of New Orleans v. White, 78 So. 745, 143 La. 487 (La.1918). Thus, it is only necessary for this court to determine if the evidence presented by the state was sufficient to prove the elements of LSA-R.S. 14:84(1) in order to affirm Tuscano’s conviction in this matter.

State v. Tuscano, 492 So.2d 67, 68 (La.App. 5 Cir.), writ granted, 494 So.2d 1165 (La.1986), on remand, 520 So.2d 1311. (La.App. 5 Cir.1988) (footnote omitted).

A footnote in Tuscano observed that the legislation enacting La.R.S. 14:84 contained “the standard severability clause.” Id. at 68 n. 1. We find that La.R.S. 40:982 and La.R.S. 40:967 are inherently severa-ble because they are separate statutes and are of different genera, as the former is a sentencing enhancement provision, while the latter defines substantive offenses.

Further, we find that Tuscano and Wells are sufficiently analogous to the present case to indicate that we may view the La.R.S. 40:982 second-offense convictions as severable from the portions of the convictions that relied upon La.R.S. 40:967 and the more recent conduct. Also, viewing Tuscano alongside courts’ established authority to vacate improper convictions and order the entry of convictions for lesser-included offenses, we vacate the convictions for second-offense possession of cocaine and second-offense distribution of cocaine under La.R.S. 40:982, but order the entry of a conviction for possession of cocaine and a conviction for distribution of cocaine, both in violation of La.R.S. 40:967.

Because we have elected to affirm the convictions as La.R.S. 40:967 violations, the harmless error issue must still be resolved, as the jury was exposed to the fact of Defendant’s criminal history. As noted above, a similar scenario existed in the Wells case. That court decided both that a harmless-error analysis applied and that the error was ultimately harmless, due to the strong evidence against defendant, regarding the |iamore recent conduct at issue. In Wells, the police found fifty rocks of crack cocaine in the defendant’s pants. Wells, 815 So.2d 1063.

Here, Defendant sold cocaine to an undercover police officer. Thus, we find that in the present case, as in Wells, the State presented strong evidence regarding the violation of La.R.S. 40:967. Therefore, we find that the error was harmless.

PRO SE ASSIGNMENTS (CONSOLIDATED WRITS):

As noted earlier, Defendant has submitted two pro se writs, bearing docket numbers 05-1098 and 05-1261, for review. Both writs have been consolidated with his appeal.

05-1098

ASSIGNMENTS OF ERROR NOS. 1 & 2, & SUPPLEMENTAL ASSIGNMENT:

In his first assignment of error, Defendant complains that appointed trial counsel was substituted, so that he received new counsel three weeks before trial. He argues that counsel did not have sufficient time to prepare for trial, in contrast to the prosecutor, whom Defendant alleges had three years to prepare. In a supplement to this writ, Defendant asks this court to order a copy of a “Faretta hearing” held on March 14, 2005, to help in the evaluation of his arguments. Defendant observes that the hearing was held because he was nervous that his trial counsel was not prepared for trial. Further, he states, “The main issue is she lied to me, telling me she was an experienced trial attorney.” Defendant alleges a number of deficiencies in trial counsel’s performance or conduct, including incompetence, lack of diligence, and misrepresentation. Thus, the crux of his argument appears to focus upon counsel’s actions, rather than upon any desire to have represented himself. We find |14Pefendant’s arguments are in the nature of an ineffective assistance of counsel claim, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Also, arguments that an attorney has lied to his client invariably involve conversations or statements that would not typically appear in a trial record. Therefore, we hold that these arguments are to be deferred to the post-conviction process, where Defendant will have an opportunity to develop the record regarding trial counsel’s actions.

If Defendant does have concerns more directly related to Faretta, we hold that they are considered preserved for the purposes of post-conviction review, as it appears that any such issues would be factually intertwined with Defendant’s Strickland concerns.

ASSIGNMENT OF ERROR NO. 3:

In the third assignment in this writ, Defendant complains that a pro se motion to suppress filed by him was never heard. When a defendant proceeds to trial without obtaining rulings on his pre-trial motions, such motions are considered waived. State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, writ denied, 03-409 (La.10/10/03), 855 So.2d 334; State v. Pratt, 32,302 (La.App. 2 Cir. 9/22/99), 748 So.2d 25.

In the present case, the record reflects that Defendant’s motion to suppress was continued without date, on motion of his counsel, on February 24, 2005. Our review of the record indicates that Defendant did not attempt to raise the motion again until the hearing on his motion for new trial on August 8, 2005. At said hearing, the trial court stated that there was no basis for the motion to suppress because police had obtained cocaine directly from Defendant in a drug transaction, thus supporting the | ^distribution charge, and that police obtained other cocaine evidence when Defendant abandoned it at the time of his arrest.

We find that there is no need to conduct a review of the trial court’s cursory assessment of the merits. For the purposes of appellate review, the motion was waived when Defendant proceeded to trial without obtaining a ruling. Therefore, this assignment lacks merit.

05-1261:

In this writ, Defendant sets out three assignments of error.

ASSIGNMENTS OF ERROR NOS. 1-3:

Because the first and third assignments focus upon Defendant’s arraignment, we will discuss them together. The second assignment is a claim that his Due Process rights were violated. The writ does not clearly allege the manner of the violation. However, we find the assignment also relates to Defendant’s arraignment, since the body of Defendant’s “conclusion” focuses upon that proceeding.

Defendant claims he was never arraigned. He acknowledges that the minutes reflect that he was arraigned, but states he is “unaware of such a hearing.” He claims that the transcript would show that no arraignment occurred, but that he has been unable to obtain a copy of the transcript.

The relevant provision, La.Code Crim.P. art. 555, states:

Any irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.

As noted above, the minutes of court show that Defendant was arraigned via audio-visual telecommunication, as authorized by La.Code Crim.P. art. 551(B). | T fiAIthough, as Defendant observes, the record does not contain a transcript of the proceeding, we note other support for the fact that Defendant was arraigned. The record contains both minutes and a transcript for a proceeding held on November 23, 2004. Urging a “Motion to Dismiss” at that time, Defendant acknowledged that an arraignment proceeding had occurred, but argued he had a hearing problem and did not understand what was going on at the arraignment:

MR. RUIZ:
A Because a lot of the proceeding hearings, I didn’t hear what went on. When they arraigned me, I never got a subpoena to be arraigned. I didn’t know I was being arraigned until after I was arraigned. I didn’t know what I was charged with. I had to send my daughter to the courthouse to get a copy of the Bill of Information. Okay. If they wouldn’t have told me after I was out of here that I was arraigned, I wouldn’t have know what happened.
THE COURT: All right. So on the Motion to Dismiss, .your complaint is that you weren’t informed as to what was going on?

We observe that Defendant’s written “Petition to Dismiss” also acknowledged that an arraignment was conducted, but argued that he did not understand the proceedings. The trial court denied the motion, finding that Defendant had not been prejudiced, as a not guilty plea was entered on his behalf, Defendant went to trial, and obtained a mistrial.

In an earlier, unsigned, “Motion to Dismiss,” filed on November 31, 2003, Defendant complained, “I haven’t been brought upon [sic] my said case since my Arraignment on said date of August 13, 2002.” (Emphasis added).

We note another- acknowledgment by Defendant that an arraignment occurred. In a writ application to this court, Defendant sought review of the denial of his 117Motion to Dismiss. He implicitly acknowledged that an arraignment had occurred when he argued that because of his poor hearing, he could not understand the proceedings. We denied the writ, stating, “The Defendant fails to prove he is entitled to relief.” State v. Ruiz, an unpublished opinion bearing docket number 04-1587 (La.App. 3 Cir. 12/10/04).

We find that the argument that no arraignment occurred is different than the argument that one was held, but Defendant did not understand the proceedings. The record contains multiple motions attacking the arraignment on one of these grounds or the other, and at times conflating the two. However, the language of Defendant’s current assignments contend that no arraignment occurred. He asks this court to order a transcript of the proceedings for the arraignment date, August 13, 2002, but it is not clear how he expects such a transcript to further his argument. . He does not allege any prejudice; the minutes indicate that he was represented by counsel at arraignment, that a not guilty plea was entered, and that his right to trial by jury was reserved. He was represented by counsel at both of his trials, and was able to secure a mistrial in the first. Thus, even if there was some defect in the arraignment, we find that Defendant has failed to show that any prejudice resulted.

For the reasons listed above, we find that contrary to Defendant’s current assertions, the lower court held an arraignment. The argument that he did not understand the arraignment proceedings is not before this court.

For the reasons discussed, these assignments lack merit.

CONCLUSION:

Pursuant to Skipper, La.R.S. 40:982 does not state a substantive crime. However, the second-offense portions of the convictions are severable from the 11sportions of the convictions that relied upon the more recent criminal conduct, pursuant to La.R.S. 40:967. Further, although it was error under Skipper to expose the jury to the fact of Defendant’s prior conviction, said error was harmless because of the strong evidence regarding the more recent criminal conduct at issue, i.e., Defendant’s sale of cocaine to an undercover officer.

Therefore, Defendant’s convictions for second-offense possession and second-offense distribution of cocaine and the attendant sentences, including the adjudication and sentence under La.R.S. 15:529.1, are vacated. However, we order the entry of convictions for the lesser offenses of possession of cocaine and distribution of cocaine, both in violation of La.R.S. 40:967. The case is remanded for further proceedings, in accordance with this opinion.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . In Griffith v. Kentucky, 479 U.S. 314, 321, 107 S.Ct. 708, 712, n. 6, 93 L.Ed.2d 649 (1987), the Supreme Court defined finality of a conviction as "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally decided.”

      . The supreme court remanded the case to the fifth circuit for reconsideration in light of Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). On remand, the fifth circuit found Stromberg distinguishable and affirmed the defendant's conviction and sentence pursuant to La.R.S. 14:84(1).


author: COOKS, Judge.

text:
    Henry ARCENEAUX v. Pamela NORMAN, et al. Elby Johnson, Jr., et al. v. Swift Transportation Co., Inc.
    Nos. 05-1536, 05-1537.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 2006.

      Michael J. Remondet, Jr., Donovan J. O’Pry, II, Lafayette, Louisiana, for Appellant, Swift Transportation Co., Inc.
    Bob Broussard, D. Patrick Daniel, Jr., Lafayette, Louisiana, for Appellees, Elby Johnson, Jr. and Denise Judice Johnson.
    James D. Hollier, Brandon W. Letulier, Lafayette, Louisiana, for Appellee, Pamela Norman.
    Scott Dartez, Perrin, Landry, deLaunay, Dartez and Ouellet, Lafayette, Louisiana, for Appellee, Henry Arceneaux.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   COOKS, Judge.

| ¡¡STATEMENT OF THE CASE

The trial court granted Pamela Norman’s cross motion for summary judgment finding Ms. Norman, as an employee of Swift Transportation Company, Inc. had “initial permission” to operate its 18-wheeler truck and, therefore, was covered as an insured under its policy. The trial court denied Swift Transportation’s motion for summary judgment relating to the same issue. Generally, the denial of a motion for- summary judgment is a non-appealable interlocutory ruling. - La.Code Civ.P. art. 966. However, in the interest of judicial economy, the denial of a motion for summary judgment may be reviewed in conjunction with other appealable issues. Industrial Indem. Co. of Northwest v. Central Nat. Ins. Co. of Omaha, 99-2535 (La.App. 1 Cir. 12/22/00), 775 So.2d 1246, writ denied, 01-225 (La.4/12/01), 790 So.2d 1. Accordingly, we will review both the denial of Swift Transportation’s motion for summary judgment and the granting of Ms. Norman’s motion for summary judgment.

STATEMENT OF THE FACTS

On August 26, 2002, Henry Arceneaux and Elby Johnson, Jr. were allegedly injured while riding as passengers in an 18-wheeler truck driven by Pamela Norman and owned by her employer, Swift Transportation Company, Inc. (Swift). Ms. Norman had been hired as a truck driver by Swift the day before the accident. On the day of the accident, Ms. Norman testified she picked up Elby Johnson and Henry Arceneaux and the three drove to Golden Palace convenience store to buy alcoholic beverages. All three opened their containers of alcohol and began drinking and driving around in the Swift vehicle. Ms. Norman testified she was aware of Swift’s policy prohibiting the transporting of people in the truck and the consuming of alcohol while driving. Ms. Norman testified Mr. Johnson suggested how they could | ¿make money if they staged an accident in the Swift truck. Ms. Norman testified extensively about Mr. Johnson’s idea about staging an accident, how much money they could get and how they could each use the money. She testified Mr. Johnson attempted to talk her into putting the truck into drive and letting it hit a telephone pole near the convenience, store. She also testified Mr. Arceneaux stated they should hit a low brick wall instead of a telephone pole. According to Ms. Norman, Mr. Johnson was smoking marijuana in the truck. Ms. Norman admitted to drinking alcohol, but denied smoking marijuana because of the company’s drug testing policy.

After a couple of hours, the group ran out of alcohol and they drove back to the convenience store to purchase more. Ms. Norman testified, as they rode past a street corner where individuals were selling drugs, Mr. Johnson asked to be dropped off because one of the individuals owed him money. When she refused to stop the truck, Mr. Johnson opened the door and jumped out. She stopped the truck and went around to assist him. She testified he appeared to be uninjured but refused to get back in the truck. She left Mr. Johnson and Mr. Arceneaux on the side of the road, drove to Mr. Johnson’s house and told his wife, Denise, to pick them up.

Mr. Johnson and Mr. Arceneaux tell a different story. They claim the only one drinking on the day of the accident was Ms. Norman. Mr. Johnson stated when he saw Ms. Norman with a can of beer he “freaked out” and demanded to be let out of the vehicle. As Mr. Johnson was attempting to exit the vehicle, Ms. Norman accelerated causing him to fall to the ground where he sustained injuries. Mr. Arceneaux alleges he was looking back at Mr. Johnson when Ms. Norman applied the brakes causing him to fall forward hitting the dashboard. Mr. Johnson and Mr. Arceneaux sued Pamela Norman and Swift Transportation Company, Inc. for injuries sustained in the accident.

| fi Swift filed a Motion for Summary Judgment alleging: (1) Pamela Norman was not in the course and scope of her employment at the time of the accident; (2) Swift did not negligently entrust the vehicle to Ms. Norman; and (3) Ms. Norman was not a “permissive user” of the Swift vehicle. The trial court granted Swift’s motion on the first two issues finding Ms. Norman was not in the course and scope of her employment with Swift at the time of the accident and Swift had not negligently entrusted its vehicle to Ms. Norman. However, the trial court found Ms. Norman was a permissive user of the Swift vehicle and was covered as an insured under the Swift policy. Swift appeals on the issue of coverage for Ms. Norman. We note the ultimate liability of Swift for the injuries allegedly sustained by Mr. Johnson and Mr. Arceneaux is not at issue in this appeal. This appeal is limited to the issue of coverage. Based on our review of La.R.S. 32:900(B)(2), and related jurisprudence, we conclude, Ms. Norman was given initial permission to drive the Swift vehicle and is covered as an insured under the Swift policy. Therefore, we affirm the decision of the trial court.

LAW AND DISCUSSION

Swift contends the terms of the Swift policy excludes Ms. Norman from coverage. Specifically, Swift argues the language in the policy requires that liability arise out of “operations performed” for the named insured. The Swift policy states:

ADDITIONAL INSURED ENDORSEMENT
IT IS AGREED:
(1) The “Persons Insured” provision is amended to include as an insured any person, organization or entity to whom the named insured is contractually obligated to provide such coverage, but only with the respect to liability arising out of operations performed for such insured by or on behalf of the named insured.

Additionally, Swift contends that the operator of the vehicle must use the | ¿vehicle with the permission of the named insured and the operation or use of the vehicle must be within the scope of that permission. The Swift policy provides:

III. PERSONS OR ENTITIES INSURED
B. Each of the Following is an Insured Under This Policy to the Extent Set forth Below:
(1) any person while using, with the permission of the Named Insured, any automobile owned by, loaned to or hired for use by or on behalf of the Names insured and any person or organization legally responsible for the use thereof, provided actual operation or other actual use is within the scope of such permission.

Swift contends Ms. Norman’s conduct and the alleged accident did not arise out of “operations performed” for her employer and the vehicle was being used outside the scope of permission granted by Swift. Specifically, Swift contends: (1) Ms. Norman was prohibited from allowing guest passengers in the truck without pri- or written approval and consent of Swift; (2) she was consuming alcohol while driving the truck; and, (3) she was using the truck for personal use. Because she was beyond the scope of permission, Swift argues, it cannot be held liable under the express terms of the policy.

However, in Louisiana “under an automobile liability insurance policy provision referred to as an “omnibus clause,” insurance coverage is expanded to include persons who are using the insured’s vehicle with the insured’s express or implied permission.” Manzella v. Doe, 94-2854, p. 4 (La.12/8/95), 664 So.2d 398, 401. Louisiana Revised Statutes 32:900(B)(2) mandates that every policy of insurance include an omnibus clause within its coverage.

Louisiana Revised Statutes 32:900 provides, in relevant part:

B. Such owner’s policy of liability insurance:
(2) Shall insure the person named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured against loss from the pliability imposed by law for damages arising out of the maintenance, or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs with respect to each such motor vehicle as follows:

Once “initial permission” is established by the plaintiff, insurance coverage is provided regardless of whether the accident occurred during “operations performed” for the employer or whether the vehicle was being used “within the scope of permission” granted by the owner. Parks v. Hall, 189 La. 849, 181 So. 191 (1938). In Parks, the Louisiana Supreme Court first articulated the scope of the “initial permission” rule. In Parks, Harvey Hall was employed as a chauffeur for Mr. Gans. The accident occurred when Mr. Hall deviated from the duties of his employment and was on a private errand. The court of appeal found since Mr. Hall was not within the course and scope of his employment, his employer was not liable under the theory of respondeat superior. Moreover, the court of appeal found because Mr. Hall’s employer did not authorize Mr. Hall’s private use of the vehicle, the vehicle was not being legally operated with the owner’s permission and, therefore, the insurer was not liable under the. omnibus coverage clause. The Louisiana Supreme Court granted writs and annulled the appellate decision, stating: '

If Hall, at the time of the accident, had been operating the car while attending to his regular duties, washing the car, or as instructed by his employer, then the injury would have been caused while acting within the scope of his employment and Gans would be liable under the rule of respondent superior and the omnibus coverage clause in the policy would have no application. Under such circumstances, the insurer would be primarily liable under Act No. 55 of 1930.
Under the facts of this case, Hall was operating the car with the permission of the assured and the policy, by its express terms, i.e., the omnibus clause, was made to cover, as an assured, any one who was driving the car with the permission of the owner of the insured car. The provisions of the policy do not limit the liability thereunder to causes arising when the permitted driver was using the car either for the owner’s business or under any restricted circumstances. The language is not restricted, but used in its broadest possible sense and under the rules of construction generally applicable in eases of this kind, we must | sgive the language used the same broad construction. The words used in the clause would be practically meaningless and the object there made nugatory if it were necessary to determine in every case whether, at the time and under the circumstances of the accident, the driver was proceeding within the limitations of the permission of the assured to use the car.
We therefore conclude that the permission of the assured to Hall to use the ear in the first instance, irrespective of the use to which he put the car while in his possession was ‘permission of the assured’ within the meaning and contemplation of the ‘omnibus clause’ and the insurer is therefore liable to plaintiffs thereunder.

Id. at 858-859, 181 So. 191.(Emphasis in original.)

The courts “repeatedly construed the word ‘permission’ in an omnibus clause of a liability insurance policy in its broadest possible sense. Once permission, whether express or implied, to use a motor vehicle is established, it is given a wide and liberal meaning in determining coverage.” Norton v. Lewis, 623 So.2d 874, 875 (La.1993). Insurance coverage is precluded only when it is shown the deviation amounts to theft or conduct displaying an utter disregard for the return or safekeeping of the vehicle. Id. The justification for extending coverage even when the driver deviates from the scope of the permission was articulated by the supreme court in Norton, as follows:

The primary justification for the “initial permission” rule is that it effectively furthers the state’s policy of compensating and protecting innocent accident victims from financial disaster. Moreover, its application serves to discourage collusion between lender and lendee in order to escape liability and to greatly reduce a most costly type of litigation.

Id. at 875. See also, Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398.

The plaintiff has the burden of proving express or implied permission of the insured in order to obtain coverage under the omnibus clause. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398. The fact of initial permission must be proved as any other fact by a preponderance of the evidence without the aid of any 1 presumptions. Norton v. Lewis, 623 So.2d 874 (La.1993).

After reviewing the record, we find Ms. Norman had initial permission to use the Swift truck and any deviation from the scope of permission did not amount to theft or an utter disregard for the return or safekeeping of the truck. Ms. Norman was hired as a driver for Swift the day before the accident. It is undisputed Swift gave her express permission to drive the truck for deliveries and to keep it overnight parked at her residence. While she chose to pick up friends and drive around in the Swift truck, this fact does not amount to theft or an utter disregard for the safekeeping of the truck. Swift contends the fact that she was drinking in the truck relieves it of coverage under the policy. We disagree. In Pope v. Allstate Insurance Company, 99-494 (La.App. 5 Cir. 11/30/99), 751 So.2d 299, Benny Freeman was employed by Stanley Smith. He was driving Mr. Smith’s van when he rear-ended the plaintiffs vehicle and fled the scene. He was arrested shortly thereafter for driving while intoxicated. When Mr. Freeman did not return with the van, Mr. Smith called the police and reported the van missing. However, he did not believe Mr. Freeman had stolen the van. While it was undisputed Mr. Freeman had express permission to use the van, the insurer argued he was excluded from coverage under the “initial permission” rule because he was intoxicated at the time of the accident. The insurer argued intoxication while driving the van indicated an utter disregard for the return or safekeeping of the vehicle. The appellate court rejected this argument stating:

The accident occurred on the same day that Mr. Freeman had permission to use the vehicle. The fact that he was intoxicated when attempting to return the vehicle does not indicate an utter disregard for the return of the vehicle. Mr. Freeman did not attempt to steal the van or keep it for an extended period of time for his own personal use. Even though Mr. Smith told Mr. Freeman not to drink on the job, the liberal construction of the statute and the definition of permission does not allow this being a deviation from the use consented to by the owner. Under the circumstances, insurance coverage is not precluded.

|10Id. at 302.

In Manzella v. Doe, 664 So.2d 398, Mr. Manzella was injured when his vehicle was rear-ended by an employee of the New Orleans Aviation Board (NOAB). The driver of the NOAB vehicle fled the scene on foot. It was undisputed the employee was not within the scope of his employment when the accident happened and the testimony established although NOAB employees had permission to use company vehicles on the grounds, permission was rarely granted to allow the vehicles to leave the airport premises. The supreme court found coverage under the policy, stating:

Here, the trial court found that the keys were locked up or in the hands of an employee at all times; that the truck involved in the accident was not “hot wired;” and that the truck was operated with a key at the time of the accident.
The evidence showed that the truck was driven from the maintenance yard without windows being broken and without being “hot wired.” Moreover, there was no other evidence of a possible theft of the vehicle such as tampering with the steering column. Therefore, it was reasonable to infer that the driver operated the truck with a key and that the Board allowed him to have access to the truck and to one of the four keys.

Id. at 402.

The supreme court found once initial permission was established, “this permission continued to exist at the time of the accident, since there was no evidence that this permission was subsequently rescinded.” Id. See also Valdetero v. Commercial Union Insurance Co., 00-1581 (La.App. 3 Cir. 4/4/01), 782 So.2d 1210, where this court found implied permission was granted by the company even though the testimony established company personnel could only use company vehicles upon gaining specific permission from a superior and the authorized use was limited to site specific tasks. The evidence established the vehicle was kept on the company lot with the key in it in case of emergencies. The employee was joyriding at the time of the accident.

lnSwift cites Campbell v. Verrett, 02-0695 (La.App. 3 Cir. 10/30/02), 829 So.2d 1141, writ denied, 02-2911 (La.2/14/03), 836 So.2d 116. This case is distinguishable from the facts in the present case. In Campbell, Hilton Verrett was employed at a nursery owned by Josephine Scarbrough. The nursery owned two vehicles, a Ford truck which Mr. Verrett was authorized to use solely for business purposes and a Nissan truck which he was allowed to take home and use for personal errands. One evening, Ms. Scarbrough took the Nissan truck home. Mr. Verrett left in the Ford truck and was involved in an accident. This court found Mr. Verrett was not covered under the policy stating:

This is not a case of deviation from initial permission granted. Mr. Verrett did not deviate from permission granted to him, because, according to Mr. Ver-rett’s testimony, he did not have any permission whatsoever to drive the vehicle that evening.

Id. at 1146.

We find Swift gave Ms. Norman initial permission to drive the truck. She was allowed to take the truck home and she was given permission to personalize the truck. The deviation from use on the day of the accident did not amount to a disregard for the safekeeping or return of the truck. Accordingly, we affirm the decision of the trial court denying Swift’s motion for summary judgment and granting Ms. Norman’s motion for summary judgment.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Swift Transportation Company, Inc.

AFFIRMED.


author: AMY, Judge.

text:
    Preston HEBERT v. CROWN DBL, INC.
    No. 06-619.
    Court of Appeal of Louisiana, Third Circuit.
    May 31, 2006.
    Michael Benny Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Preston Hebert.
    Todd Anthony Delcambre, Law Offices of Henry H. LeBas, Lafayette, LA, for Defendant/Appellee, Crown DBL, Inc.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

This court issued a rule for the appellant to show cause, by brief only, why the appeal in this case should not be dismissed as having been taken from a non-appeal-able partial final judgment. The appellant filed a brief in response to this rule on May 12, 2006. For the reasons assigned, we dismiss this appeal.

The judgment appealed in this matter granted summary judgment on the appellant’s claim that he was not timely provided with his choice of orthopedic surgeon. However, the judgment specifically reserved the remaining claims asserted in the appellant’s amended 1008 form. The judgment does not designate the judgment as immediately appealable nor does the judgment expressly find that there is no reason to delay an immediate appeal from this judgment.

The appellant filed a motion and order for an appeal from the partial judgment on March 23, 2006. The trial court granted the motion for appeal. The record was lodged in this court on May 5, 2006. On May 8, 2006, this court issued the instant rule for the appellant to show cause why the appeal should not be dismissed.

In the brief filed in this court by the appellant in response to this court’s rule, the appellant states that the judgment appealed is a partial, final judgment pursuant to La.Code Civ.P. art. 1915(B). Furthermore, the appellant acknowledges that the trial court has not designated this judgment as immediately appealable as required by this statute before an appeal can be taken. The appellant concludes, as does this court, that the judgment appealed in this matter is not appealable. Therefore, we hereby dismiss this appeal at appellant’s cost.

APPEAL DISMISSED.