author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Leon Allen BEVERLY, aka Barry T. Dorff, Appellant.
    No. 15,878-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 25, 1984.
    Sir Clyde Lain II, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   PRICE, Judge.

Defendant, Leon Allen Beverly, was convicted of three counts of simple burglary of an inhabited dwelling La.R.S. 14:62.2, and was sentenced to serve ten years at hard labor on each count. The sentences were ordered to run consecutively.

On this appeal defendant asserted numerous assignments of error but has submitted an argument in brief to this court on only two of the assignments. Therefore, the remaining assignments shall be considered abandoned. State v. Smith, 430 So.2d 31 (La.1983); State v. Domingue, 298 So.2d 723 (La.1974).

The viable assignments for our review are: (1) did the trial court erroneously overrule defendant’s motion to quash based on the state’s failure to bring him to trial within two years of institution of prosecution, and (2) did the trial court err by ordering defendant’s three sentences to run consecutively.

We find no merit to either assignment and affirm the conviction and sentence for the reasons assigned.

Prior to his arrest in Ouachita Parish in December 1978, defendant had escaped from prison in California where he was serving a sentence for simple rape. He was charged by a bill of information filed on December 21, 1978, in Ouachita Parish with eight counts of simple burglary of an inhabited dwelling and counsel was appointed to represent him. After disposition of a series of preliminary motions and prior to a trial of the merits, the defendant escaped from custody in Ouachita Parish on either March 8 or 9, 1979, and was subsequently apprehended in the state of Oregon. He was offered a choice by Oregon authorities of waiving extradition to either California or Louisiana. Defendant waived extradition to California and began serving the remainder of his sentence owed to that state.

In July 1979 the state of Louisiana initiated extradition proceedings against defendant which were uneventful as California authorities declined to extradite defendant until the completion of his sentence. He was at that time being incarcerated in a mental facility for mentally disturbed sex offenders. In November 1981, California authorities notified Ouachita authorities that defendant was eligible to be released and advised that the previous Louisiana extradition documents had been misplaced. A second extradition proceeding was begun which resulted in defendant’s extradition to Louisiana in January 1982.

Through his present appointed counsel defendant filed a motion to quash on March 16, 1982, contending that because more than two years had elapsed since he was charged, the state’s right to bring defendant to trial has prescribed under the provisions of La.C.Cr.P. Art. 578. This motion was denied by the trial court on a finding that the period of limitation provided in Art. 578 had been interrupted by defendant’s escape and subsequent incarceration in California under the provisions of La.C. Cr.P. Art. 579.

Defendant does not contend that prescription was not interrupted by his escape on March 8 or 9, 1978. He contends however that prescription began to run anew when the state of Louisiana learned that defendant was in custody in California in July 1979 and that the two year period for limitation of prosecution accrued on July 23, 1981. He further contends that the filing of the extradition proceedings on July 23, 1979, without further effort to consummate the extradition process was insufficient to extend the period of interruption begun by defendant’s escape. Defendant relies on the decisions in State v. Devito, 391 So.2d 813 (La.1980) and State v. Amarena, 426 So.2d 613 (La.1983).

Devito held that the state failed to show it had been unable to obtain a defendant’s presence because of any cause beyond its control since the record showed the lengthy delay in obtaining the defendant’s extradition from another state was due to neglect on the part of this state.

The circumstances of the instant case are distinguishable from Devito. Here the state took immediate steps to extradite on March 23, 1979. The record shows an assistant district attorney was advised by the California authorities defendant would not be released -to Louisiana until he completed serving his term in California. By the time his term was completed, California authorities had misplaced the previously received extradition papers from Louisiana and it was necessary that a second extradition proceeding be accomplished. This was done punctually by Louisiana authorities.

Amarena is distinguishable in that the state made no effort to extradite under circumstances where it would have been effective. The defendant in that case was incarcerated in a federal penal institution in California and the state did not make any effort to comply with federal laws to have the defendant transferred to Louisiana for trial within the two-year time limitation of La.C.Cr.P. Art. 579.

We find under the circumstances presented here the state has borne its burden of showing it had been unable to obtain defendant’s presence for a cause beyond the control of the state. Therefore, the time limitation for prosecution was interrupted during the entire period defendant was incarcerated in California. Prescription began to run anew on November 19, 1981, and trial began on February 28, 1983, well within the two year limitation period.

In regard to defendant’s second assignment of error that his sentences should have been ordered to be served concurrently rather than consecutive, we find no abuse of discretion by the trial court under the facts presented. The general rule is that the imposition of consecutive rather than concurrent sentences for crimes arising out of a single course of conduct requires particular justification. State v. Messer, 408 So.2d 1354 (La.1982). State v. Webster, 427 So.2d 1324 (La.App. 2d Cir.1983). However, concurrent sentences arising out of a single course of conduct are not mandatory and all factors in the case are to be considered. State v. Taylor, 430 So.2d 686 (La.App. 2d Cir. 1983).

In view of defendant’s past criminal record and the lack of any mitigating circumstances, it makes no difference in the instant case whether the offenses for which he was convicted are treated as separate incidents or part of a common scheme or plan as in State v. Bland, 419 So.2d 1227 (La.1982).

The trial court in its per curiam to this assignment of error summarized defendant’s record as follows:

As the sentencing transcript reveals, appellant was 30 years of age and had been incarcerated or on escape status from incarceration almost constantly for 15 years for a series of felony crimes. While he expressed doubts about his guilt of one or more of the three counts tried, he readily admitted his guilt of a series of house burglaries here at the time. The colloquy between him and the court clearly reveals that he is an habitual felon by choice and that there were no mitigating circumstances whatever. The crimes could not have been committed by an intoxicated person, since entry was professionally achieved and the homes were rifled of many valuable items, some quite large, but all readily susceptible to pawn or sale. Defendant is a professional burglar and thief who committed, by his own admission, more than three house burglaries. The sentences were not excessive.

We find the trial court’s conclusion to be supported by the record and that the sentences imposed were not excessive because they were ordered to run consecutively.

The convictions and sentences are affirmed.

AFFIRMED.

      . Art. 578 General Rule
      Except as otherwise provided in this Chapter, no trial shall be commenced:
      (1) In capital cases after three years from the date of institution of the prosecution;
      (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.
      The offense charged shall determine the applicable limitation.

      . Art. 579 Interruption of time limitation
      The period of limitation established by Article 578 shall be' interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state.
      The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.


source: Caselaw Access Project

author: JASPER E. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Bobby Ray REED, Appellant.
    No. 15918-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.
    Writ Denied June 25, 1984.

      Indigent Defender Office by Richard C. Goorley and Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Howard M. Fish and Catherine M. Estopi-nal, Asst. Dist. Attys., Shreveport, for ap-pellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   JASPER E. JONES, Judge.

The defendant, Bobby Ray Reed, was convicted by a unanimous twelve member jury of first degree murder in violation of La.R.S. 14:30. At the penalty phase of the trial the jury was unable to reach a unanimous decision on whether to impose the death penalty and defendant was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. On appeal defendant relies on two assignments of error for reversal of his conviction and sentence.

FACTS

At approximately 7:30 p.m. on January 15, 1982 units from the Shreveport Fire Department were called to the Veteran’s Amphitheater parking lot to put out an automobile fire. The rear end of a 1970 Buick LeSabre was on fire. When the blaze was extinguished firemen on the scene pryed the car’s trunk open to see if there were any flames inside that area. Inside the trunk the firemen found a badly burned female still alive. An ambulance was dispatched to the scene and the victim was taken to a Shreveport hospital.

Shreveport Police Detective D.E. Stevens arrived at the parking lot shortly before the ambulance and he followed it to the hospital. While there Stevens interviewed the victim who told him that her boyfriend, Bobby Ray Reed, did this to her. Three days later defendant was arrested and charged with aggravated arson and attempted first degree murder. While in custody defendant gave a voluntary inculpato-ry statement corroborating the story given to Detective Stevens by the victim. Defendant’s statement was recorded. The victim subsequently died from complications arising from her burns and defendant was indicted for first degree murder.

ASSIGNMENT OF ERROR # 2

Defendant contends the trial court’s ruling permitting the State to challenge for cause six prospective jurors who were opposed to the death penalty, denied him the right to a jury from a cross section of the community.

The Code of Criminal Procedure provides that the State may challenge for cause a prospective juror who has conscientious objections against the infliction of capital punishment and who makes it unmistakably clear that: (a) he would automatically vote against the imposition of capital punishment without regard to any evidence developed at trial; or (b) his attitude toward the death penalty would prevent him from making an impartial decision as to defendant’s guilt. La.C.Cr.P. 798(2). The constitutional validity of this article has repeatedly been upheld. State v. Perry, 420 So.2d 139 (La.1982); State v. Jordan, 420 So.2d 420 (La.1982); State v. Moore, 432 So.2d 209 (La.1983); State v. Knighton, 436 So.2d 1141 (La.1983).

Defendant does not contend that the challenges for cause were improperly allowed because the challenged jurors failed to satisfy either of the requirements of C.Cr.P. 798(2). Even if the challenges were improper, such error on the part of the trial court cannot serve as grounds for reversal of a conviction. Such error may only be asserted to attack the death sentence. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); State v. Moore, supra. Defendant did not receive the death penalty.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR # 7

Defendant contends the trial court erroneously denied his motions for post-verdict judgment of acquittal and new trial. Both motions raised the issue of whether there was sufficient evidence to establish the existence of two of the essential elements of first degree murder. Defendant contends the State failed to prove he had the specific intent to kill or inflict great bodily harm and failed to prove he was engaged in the perpetration or attempted perpetration of aggravated arson, one of the felonies listed in R.S. 14:30(1).

In parts relevant to this case R.S. 14:30 provides:

First degree murder is the killing of a human being:
(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery; ... (emphasis supplied)

At trial defendant presented evidence tending to show that at the time of the commission of the offense he had been drinking heavily, smoking pot and injecting preludin. He claims that as a result of his drug and alcohol induced intoxication he was unable to formulate the specific intent to kill or inflict great bodily harm.

In reviewing a conviction for sufficiency of the evidence, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that defendant committed the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 420 So.2d 663 (La.1982); State v. Narcisse, 420 So.2d 947 (La.1982); State v. Graham, 420 So.2d 1126 (La.1982).

Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act. La.R.S. 14:10(1). Even though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction and the actions of the defendant. La.R.S. 15:445; State v. Boyer, 406 So.2d 143 (La.1981); State v. Fuller, 414 So.2d 306 (La.1982); State v. Beck, 445 So.2d 470 (La. App.2d Cir.1984).

Voluntary intoxication is a defense to a criminal charge only where the circumstances indicate that an intoxicated or drugged condition has precluded the presence of specific intent. La.R.S. 14:15(2). State v. Boleyn, 328 So.2d 95 (La.1976); State v. Burge, 362 So.2d 1371 (La.1978).

Applying these rules of law to the instant case, the ultimate issue for our determination is whether a rational juror could have found beyond a reasonable doubt that defendant’s drug and alcohol induced intoxication was not so severe as to preclude the presence of specific intent to kill or inflict great bodily harm. In making this determination we must view the evidence in the light most favorable to the prosecution. The following evidence was before the jury:

At some time during the early evening hours of January 15, 1982 defendant went to the victim’s home and they began to argue over money. The argument led to a fight during which defendant beat the victim with his fists, cut her with a knife and pistol whipped her. He then forced the victim into the trunk of her automobile and drove to a service station where he purchased 25 cents worth of gasoline and placed it in a plastic bottle. After acquiring the gas defendant drove to the Veteran’s Amphitheater parking lot which is located in a secluded area near the Red River in Shreveport.

Defendant sat in the parking lot for fifteen to thirty minutes contemplating what to do. His stated purpose was to figure out how to show the victim that “when he asked for something she better give it.” While he was sitting in the parking lot the victim began yelling to him to let her out of the trunk and she promised if he did she would not tell the police what he had done. Defendant stated he knew she would tell the police even though she declared that she would not and for this reason he decided to set the car on fire. In order to accomplish this he removed the rear speakers from the car and poured gasoline directly into the trunk. He then took gasoline soaked rags and made two fuses, one leading to the trunk through the speaker hole and the other leading to the gas tank, and set the fuses on fire. The defendant then walked away from the car after throwing the plastic bottle, which had contained the gasoline, and other evidence over a fence into a wooded area adjacent to the parking lot.

We find that a rational juror could have inferred from the facts and circumstances that defendant had the specific intent to kill or inflict great bodily harm and that his level of intoxication did not render him incapable of formulating that intent. The primary facts upon which we rely for that determination are: defendant drove to a secluded area before setting the fire; he sat in the car for a while contemplating what to do; he decided to set the fire because he thought the victim would report to the police what had previously occurred; he methodically set the fire so that the gas tank would likely explode and where he could get away before it did so; he attempted to dispose of evidence; and he calmly walked away from the scene instead of running in order to draw less attention to himself.

Defendant next argues the State failed to prove first degree murder because his act of setting the car on fire while the victim was locked in the trunk constituted a battery rather than aggravated arson. This argument is untenable. Aggravated arson is defined in part as the intentional setting fire to any movable wherein it is foreseeable that human life might be endangered. La.R.S. 14:51. Defendant intentionally set fire to the car knowing the victim was locked in the trunk. It was foreseeable that human life would be endangered.

This assignment of error lacks merit.

Defendant’s conviction and sentence are AFFIRMED.

      . In his assignments of error filed with the trial court defendant alleged seven errors. Only two of those were briefed and argued before this court. Assignments of error neither briefed nor argued are deemed abandoned and are not considered. State v. Buxton, 416 So.2d 71 (La.1982); State v. Rowe, 416 So.2d 87 (La.1982); State v. White, 446 So.2d 1317 (La.App. 2d Cir.1984).

      . An arson investigator testified that the reason the gas tank did not explode is defendant stuffed the rag he used as a fuse into the filler pipe so tightly that air was shut off to the tank.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Sandra RUSSELL, Appellant.
    No. 15919-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 25, 1984.

      Allan R. Harris, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Anne Goodman, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

The defendant was charged by affidavit with two counts of Prostitution in violation of LSA-R.S. 14:82(a) and 14:82(b). Following a bench trial in Shreveport City Court in which she waived her right to a jury trial, the defendant was found guilty on both counts. For the violation of LSA-R.S. 14:82(a), prohibiting indiscriminate sexual intercourse for compensation, she was sentenced to six months in jail with four months suspended and placed on supervised probation for two years. On the second count for violation of LSA-R.S. 14:82(b), prohibiting solicitation with intent to engage in indiscriminate sexual intercourse for compensation, she was sentenced to a concurrent jail term of 30 days. The defendant appeals both her convictions and sentences.

While the defendant’s motion for appeal refers to assignments of error to be urged, and the defendant’s brief argues three allegations of error, there were no assignments of error filed with the City Court in this case. Normally our review in such circumstances is limited to a search of the record to determine any errors patent on the face thereof. LSA-C.Cr.P. Art. 920(2).

There is a significant question herein as to the sufficiency of the evidence to convict the defendant on Count No. 2 regarding “solicitation.” However, we admit to some uncertainty as to whether we may indeed examine the record for such absent assignments of error. Art. 920 states that we may not, and State v. Peoples, 383 So.2d 1006 (La.1980) holds that in order to consider the sufficiency of the evidence, the defendant must assign such as error with the trial court or assert it by virtue of a motion for a new trial. This same principle was affirmed in State v. Temple, 394 So.2d 259 (La.1981). There the Supreme Court specifically affirmed that insufficiency of evidence was an error that could not be reviewed in the absence of an assignment of error or motion for new trial. The court nevertheless proceeded, in dicta, to consider the evidence and indicate that the evidence was indeed sufficient to sustain the conviction.

However, in State v. Raymo, 419 So.2d 858 (La.1982), our Supreme Court stated:

“Because the state’s case was devoid of evidence of an essential element of the charged offense, i.e., an intent to defraud, defendant’s conviction and sentence must be set aside ... regardless of how the error is brought to the attention of the reviewing court_ Accordingly, we rest our decision on this ground without considering the defendant’s assignments of error.” Raymo, supra, at 861 (citations omitted) (emphasis added).

In Raymo, the defendant, who was convicted of attempted forgery, filed assignments of error — but none of these pertained to the sufficiency of the evidence. Apparently in the course of reviewing the assignments that were made, the court had occasion to notice that the evidence was insufficient to sustain a conviction for the offense charged and reversed the conviction. In this same vein, Justice Lemmon, concurring in State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981), noted that regardless of how insufficiency of evidence is brought to the attention of the appellate court, it should be considered. However, he emphasized that it is not an error patent.

In an effort to clarify the posture of the law, we make the following determination. An insufficiency of evidence as per Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) does not constitute an error patent on the face of the record. However if in some fashion — either through a motion for new trial, assignments of error filed in the trial court, or as here, where the court happens to review assignments which are briefed but not filed — the court determines that the evidence is insufficient to sustain a conviction, then it is our obligation to address this issue. We therefore do so in this case.

The context facts of this case are that on August 5, 1982, Detective Stroud of the Vice and Narcotics Division of the Shreveport Police Department investigated complaints of a prostitution ring operating out of a local nightclub. Accordingly, during a phone call he spoke with a Miss Debra Reister, who was suspected of being involved, and asked for a date. Miss Reister agreed and asked Stroud if he could get a room and call her back. She also asked if he wanted a blonde or brunette. Stroud informed Reister that he had two friends and requested that she bring three girls. After renting three rooms at a local motel, Detective Stroud telephoned Miss Reister to inform her of his location. Reister set the time for the date at 1:30 p.m.

At approximately 1:45 p.m., Reister, Carrie P. Ouzts, and the defendant, Sandra L. Russell, arrived at Stroud’s hotel room. After talking for a few minutes, Detective Ron Turner went to a separate hotel room with the defendant Sandra Russell. Once in the room, Turner asked Miss Russell how much this date would cost him. She asked him whether he had talked to Debra about the price. When Turner informed her that they had not discussed it, Miss Russell suggested $75. Turner then asked what he would receive for the money, and Miss Russell replied “anything goes.” Detective Turner gave Miss Russell $75 in marked money, which she counted and placed on the floor beside the bed. Detective Turner and Miss Russell undressed and engaged in sexual intercourse. After the engagement, Turner advised Russell that he was a police officer. He then opened the door to Detective Randy F. Turner. Both officers arrested the defendant at that time.

The defendant indeed engaged in indiscriminate sexual intercourse for remuneration in violation of LSA-R.S. 14:82(a). However, there is no evidence whatsoever that the defendant violated LSA-R.S. 14:82(b), which prohibits the solicitation of one by another for prostitution. Solicitation, while constituting a separate offense in and of itself, LSA-R.S. 14:83, is likewise an additional manner in which the offense of prostitution as prohibited by LSA-R.S. 14:82 may be committed. This addition to LSA-R.S. 14:82 was made by Act No. 49 of 1977.

There is no evidence in this record that the defendant solicited this officer in any fashion. This defendant simply arrived at the appointed time, quoted the officer a price, and engaged in intercourse. She did nothing more. These acts satisfy sub-part (a) of LSA-R.S. 14:82, constituting indiscriminate intercourse for compensation, see State v. Lems, 343 So.2d 1056 (La.1977); but do not amount to a violation of sub-part (b), solicitation of one by another with the intent to engage in indiscriminate sexual intercourse for compensation, State v. Trump, 381 So.2d 452 (La.1980), State v. Jackson, 381 So.2d 454 (La.1980). Under the Standards of Jackson v. Virginia, supra, the conviction on Count No. 2 must be reversed.

Therefore, the conviction of the defendant and the concurrent jail sentence of 30 days for violation of LSA-R.S. 14:82(b) are reversed. The conviction and sentence under Count No. 1 for violation of LSA-R.S. 14:82(a) are affirmed.

AFFIRMED IN PART, and REVERSED IN PART.

      . Since the penalty for each count is |500 and/or imprisonment for not more than six months, and since the trial was prior to the effective date of Act No. 149 of 1983, which established a maximum penalty for misdemeanors joined in the same bill as $500 and/or six months imprisonment, the defendant was entitled to a jury trial. Being entitled to a jury trial, the defendant was therefore entitled to an appeal. Louisianá Constitution of 1974, Art. 1, § 19; Art. 5, § 10(A); LSA-C.Cr.P. Art. 912.1.

      . Apparently, the officers were operating under the mistaken belief that State v. Butler, 331 So.2d 425 (La.1976) required proof of a specific act of intercourse in order to prove the offense of prostitution. This matter was cleared up in State v. Lewis, 343 So.2d 1056 (La.1977), when then Chief Justice Sanders noted that Butler was a plurality opinion and that four justices were of the view that the offer of intercourse for remuneration was sufficient to prove the offense.

      . LSA-R.S. 14:83 reads, in pertinent part, as follows:
      "Soliciting for prostitutes is the soliciting, inviting, inducing, directing or transporting a person to any place with the intention of promoting prostitution.

      . LSA-R.S. 14:82 reads, in pertinent part, as follows:
      "Prostitution is:
      (a) The practice by a person of indiscriminate sexual intercourse with others for compensation.
      (b) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.


text:
    Steve Michael BUTLER, et al., Plaintiffs-Appellants, v. HOME INSURANCE CO., et al., Defendants-Appellees.
    No. 16063-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 25, 1984.

      Donald R. Miller, Shreveport, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Frank M. Walker, Jr., Shreveport, for defendants-appellees.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiffs, who were injured in an explosion which occurred during workover operations on an oil well owned and operated by defendant partnership Beebe and Beebe, brought this tort suit against the partnership, the partners individually, their liability insurer, and a partnership employee. From a trial court judgment dismissing plaintiffs’ demands in tort, they appealed.

The issues on appeal are whether the defendant partnership was the statutory employer of plaintiffs at the time of their injury, and thus immune from plaintiffs’ suit in tort, and if not, whether plaintiffs have borne the burden of proving defendant’s negligence or strict liability.

Plaintiffs Butler and Hall were employees of Dewey Williams Oil Well Service Company. They were crew members on a workover rig which had been sent by Williams to pull and repair the tubing on an oil well known as Beebe and Beebe Grant Timbers No. A-l. While the tubing was being pulled from the well, the well “kicked in” and caught fire. Butler, who was up on the derrick at the time of the explosion, was severely burned and fell from the derrick fracturing his leg. Hall was on the floor of the well at the time and was also burned.

Plaintiffs sued defendants in tort, alleging negligence of the well supervisor and strict liability. Defendants claimed immunity from plaintiffs’ action in tort as statutory employers under the provision of La. R.S. 23:1032 and 23:1061. The trial court found that the owners of the well are statutory employers and dismissed the plaintiffs’ suit on this basis.

Our workers’ compensation law provides that where a principal contracts out to another person work which is part of his trade, business, or occupation, he is liable for workers’ compensation due any employee of the contractor as if the employee was his own. La.R.S. 23:1061. Coincident with the responsibility placed upon the statutory employer, the recovery of a contractor’s employee from the principal is limited to compensation benefits. La.R.S. 23:1032. Thus, a statutory employer cannot be sued in tort. However, if the work performed by the contractor is not part of the defendant’s “trade, business, or occupation,” he is not a statutory employer and is not immune from plaintiffs’ tort action. The question, then, is whether the workover operations being performed by plaintiffs at the time of the explosion were part of Beebe and Beebe’s trade, business, or occupation.

Defendants had engaged plaintiffs’ immediate employer to perform repair work on one of their Webster Parish wells. In determining whether a particular repair and maintenance activity is a part of defendant’s trade, business, or occupation, the courts have considered whether the work is routine, ordinary, regular, or usual, whether a particular defendant or the industry as a whole customarily does the particular work with its own employees, whether the defendant has payroll employees who regularly perform the work, whether such work is essential to or an integral part of defendant’s business, whether the work is frequent or continuous, and other factors. Honeycutt v. International Paper Company, 421 So.2d 1161 (La.App. 2d Cir.1982)

However, no single factor is determinative. Courts must look to the particular facts and circumstances of each individual case in order to determine whether a particular activity falls within the scope of the principal’s trade, business, or occupation. Lewis v. Exxon Corporation, 441 So.2d 192 (La.1983), on rehearing. As the Supreme Court stated in Lewis:

Generally, in order for a work or project to be within a principal’s trade, business, or occupation, it must be routine or customary, Benson v. Seagraves, 436 So.2d 525 (La.1983); Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973), or some other type of activity which is necessary for the principal’s day-to-day operation. Put another way, the works contemplated by the statute are those activities which are an actual part of the nature and purpose of the principal’s enterprise.

Beebe and Beebe is engaged in oil production in both Louisiana and Arkansas. In Arkansas, the Beebe’s (either in partnership or individually) also operate a pipe company, drilling corporation, roustabout crews, and workover crews for servicing of their wells. The Webster Parish unit owned by Beebe and Beebe is comprised of three wells. Their only immediate employees in the area were a pumper, John Robinson, and a field supervisor, Dale Farthing. Beebe does not operate a workover crew in Webster Parish because the field is considered too small to warrant the expense. Since the three wells do not require a full-time workover rig, but workover operations are necessary from time to time, it has been Beebe’s custom to call on Dewey Williams Oil Well Servicing Company for jobs requiring repair of the rods and tubing of these three wells because they had the necessary equipment and expertise.

The workover operations being performed by the plaintiffs primarily involved the pulling of tubing, rods, and casing to look for and repair leaks in the well. Dale Farthing testified that such repair work was a part of the normal operation of the well. J.S. Beebe, Jr. testified that work-over operations are necessary to the continued operation of the well and are a routine part of oil production. A.V. Beebe testified in deposition that workover is done on a need basis and therefore not “regular” as that term is ordinarily understood. However, it is essential to continued production of oil and is usually required on an average of two to four months for an individual well.

Dewey Williams, owner of the servicing company, testified that his company performs workovers for many large oil corporations such as Gulf, Pennzoil, and Phillips Petroleum, to name a few, which do not maintain workover rigs in the Webster Parish area, as well as for small independents like Beebe and Beebe.

In contending that they are not statutory employees of defendants, plaintiffs rely primarily on Lewis, supra, wherein the Supreme Court, on rehearing, held that plaintiff, who was injured during installation of an orifice run, which was part of an Exxon project to convert an existing structure to suit a new purpose, was not a statutory employee of Exxon. That case differs factually from the instant one in that Exxon no longer performed any of its own construction projects, the conversion was a one-time activity, and it was not necessary to Exxon’s continued operations in oil and gas production.

In Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978), a case more closely analogous to the present one, plaintiffs were injured while repairing a gas flow line at Sun’s Sweet Bay Lake oil production facility. They were employees of Weco which Sun had engaged to perform its repair and maintenance at the plant because it was not feasible to use its own employees for this kind of work at this particular location. Sun did use its own employees for maintenance and repair at other production facilities. The activity in Barnes, as here, consisted of routine repair and maintenance services performed as an essential and integral part of the principal’s business and the court concluded that Sun was a statutory employer under these circumstances. See also Sassau v. Louisiana Workover Service, Inc., 418 So.2d 16 (La.App. 1st Cir.1982), in which workover operations contracted out by Sun Oil were held to be part of its trade, business, or occupation.

It is evident that workover operations are an integral and necessary part of the oil production business and are routinely performed. Although Beebe and Beebe customarily contracts such operations out to servicing companies with respect to its Louisiana wells, they do employ their own personnel to do workover work on wells in other areas. It is clear that the workover operations being performed here were an activity necessary for Beebe’s continued day-to-day operations. In the ordinary course of things, a well’s production would often cease completely without workover operations for maintenance and repair. We find this activity was an actual part of the nature and purpose of Beebe and Beebe’s oil production enterprise, and, as such, falls within the contemplation of La. R.S. 23:1032. Lewis v. Exxon Corporation, supra. We therefore find the trial court’s holding with regard, to defendant’s status as a statutory employer was correct. It is therefore unnecessary for us to consider the other issues presented on appeal.

For the reasons assigned the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiffs-appellants.

AFFIRMED.


text:
    John E. PARRISH, Plaintiff-Appellee, v. Brenda Wiggin PARRISH, Defendant-Appellant.
    No. 16,064-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      North Louisiana Legal Assistance Corp. by David A. Titman, Monroe, for defendant-appellant.
    Sharp & McVea by Robert W. Sharp, Ruston, for plaintiff-appellee.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   JASPER E. JONES, Judge.

The appellant, Brenda Parrish, appeals a custody award contained in a divorce judgment. The judgment awards her ex-husband custody of the minor child of the marriage. We affirm.

Appellant and her ex-husband, John Parrish, were married in Oklahoma on October 6, 1976. One child was born of the marriage. Several years after the marriage they established a matrimonial domicile in Jackson Parish. In August, 1981 they obtained a judgment of separation on the basis of mutual fault from the Second Judicial District Court of Jackson Parish. The judgment originally granted custody of the child to appellant but was amended to award custody to John. Appellant moved to Oklahoma and John moved to Texas with the child on September 1, 1981.

August 30, 1982 John petitioned the Second Judicial District Court for a divorce. A prayer to retain custody of the child was included in the petition. No further pleadings were filed until March 1, 1983 when appellant filed an exception to the court’s jurisdiction. On March 29, 1983, prior to a hearing on the exception, appellant filed a joint custody implementation plan and a rule for change of custody. The trial judge subsequently overruled the exception to jurisdiction. After a trial on the merits a judgment was rendered April 6, 1983 granting John a divorce and custody- of the child. Brenda filed a motion for a new trial on the grounds the trial court failed to apply Louisiana’s joint custody law. The motion was denied.

The issues raised on appeal are:

(1) Whether the trial court had jurisdiction to render a judgment on the child custody issue; and
(2) Whether the trial court erred in not granting joint custody.

Issue #1

The Code of Civil Procedure provides that in order for a court in this State to have jurisdiction over status in a child custody proceeding, the child must either be domiciled in or physically present in the State. La.C.C.P. 10 A(5). Jurisdiction when the child is merely present in the State is limited by the Uniform Child Custody Jurisdiction Act, La.R.S. 13:1700-1724, to situations where the child has been abandoned or the exercise of jurisdiction is necessary in an emergency to protect the child or to situations where there is no other state which has jurisdiction under the act or to a situation where the state which has jurisdiction under the act declines to exercise it. R.S. 13:1702 A(3), (4); 13:1702 B.

In the instant case the parties stipulated to the fact that the child is domiciled in Texas and none of the conditions necessary for the exercise of jurisdiction where the child is merely present in the State were alleged to exist. Therefore, the trial court did not have jurisdiction to make the custody award unless jurisdiction existed under the concept of continuing jurisdiction or appellant could be said to have consented to or waived jurisdiction by filing the rule for change of custody.

Continuing jurisdiction is based upon the idea that once the parties have properly invoked the jurisdiction of a court to decide a certain matter, that jurisdiction continues until a final resolution of the matter. Where jurisdiction of the person or the res has once attached, it is not defeated by removal of the person or the res beyond the jurisdiction of the court. Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928); Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); DeFatta v. DeFatta, 352 So.2d 287 (La.App. 2d Cir.1977).

Appellant cites three cases in which the court refused to apply the concept of continuing jurisdiction to child custody cases after the child had been removed from the State and the independent basis for jurisdiction had terminated. Odom v. Odom, 345 So.2d 1154 (La.1977); Nowlin v. McGee, 180 So.2d 72 (La.App. 2d Cir.1965); Steadman v. Steadman, 393 So.2d 1281 (La.App. 1st Cir.1980).

In all of these cases the custody issue was raised post-divorce in an independent proceeding and the opinions do not indicate that any issue of child support was involved. The instant case is distinguishable by the fact that the custody issue was raised incidental to and as part and parcel of the divorce proceeding in a court that had awarded the separation judgment containing the initial custody decree.

The courts of this State which have jurisdiction over a separation or divorce action are required to render a decision on a child custody issue raised incidental thereto. La.C.C. 157; O’Bryan v. O’Bryan, 391 So.2d 1206 (La.App. 1st Cir.1980); See also, Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972); Wilson v. Wilson, 218 So.2d 372 (La.App. 2d Cir.1969).

We hold that where the trial court had an independent jurisdictional basis to decide a child custody issue raised incidental to a separation proceeding, the court retained continuing jurisdiction over the divorce and had continuing jurisdiction to decide the child custody issue raised incidental to the divorce.

The trial court had continuing jurisdiction over the divorce proceeding under the rule of Lukianoff v. Lukianoff, supra. See also Wheeler v. Wheeler, supra; Wilmot v. Wilmot, supra. At the time the custody issue was originally decided incidental to the separation proceeding, the trial court had an independent jurisdictional basis to decide the custody issue based on domicile of the child. Since the issue was again raised incidental to the divorce proceeding and the trial court had continuing jurisdiction over the divorce, the court also had continuing jurisdiction to make the custody award. Wheeler v. Wheeler, Wilmot v. Wilmot, DeFatta v. DeFatta, supra.

Issue #2

Under Louisiana’s joint custody law, La.C.C. 146, the trial court is required to grant custody in accordance with a set order of preference. Before granting sole custody to either of the parents, the court should first consider granting custody to both parents jointly. In either event, the court’s decision should be made according to the child’s best interest.

The best interest of the child is a question of fact. On appeal the trial court’s determination is entitled to great weight and will not be disturbed unless it is shown to be clearly erroneous. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Stuckey v. Stuckey, 276 So.2d 408 (La.App. 2d Cir.1973); Murphy v. Murphy, 427 So.2d 1278 (La.App. 2d Cir.1983).

The trial court found it would be in the child’s best interest to grant sole custody to the father. Appellant elected not to have the transcript of the trial proceedings included in the appellate record. In lieu of the transcript she stipulated to certain facts, none of which have any bearing on the issue of whether the trial court erred in not granting joint custody. For that reason we are unable to go beyond the trial court’s findings of fact, as laid out in the reasons for judgment and reasons for denying a new trial, in order to determine if the trial court was clearly erroneous and reach a different result. See Gulling v. E.I. Du Pont de Nemours and Company, 228 So.2d 750 (La.App. 4th Cir.1969).

AFFIRMED at appellant’s cost.

      . We note that the following provision of the Uniform Child Custody Jurisdiction law contains the concept of continuing jurisdiction.
      R.S. 13:1702. Jurisdiction
      A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

      (1) This state (i) is the home state of the child at the time of commencement of the proceeding, ... (emphasis supplied)

      . C.C. Art. 157. Custody of children; visitation rights of grandparents
      A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146 ... (emphasis added)

      . Lukianoff stands for the proposition that once the parties have properly invoked the trial court's jurisdiction in a separation proceeding, the jurisdiction continues until the divorce is obtained even where both parties have moved out-of-state.

      . Having found the trial court had jurisdiction to make the custody award under the concept of continuing jurisdiction, it is unnecessary to decide whether appellant consented to or waived jurisdiction by filing the rule for change of custody.

      . The court in Wilmot in discussing Wheeler v. Wheeler with approval made the following statement: "... The decision rested on the proposition that questions of custody of children and of alimony are incidental demands growing out of separation from bed and board suits and that the court having acquired jurisdiction of res i.e., the marital status of the parties litigant, it retained it over both parties in all matters incidental thereto....”

      . As it was in effect at the time the divorce was granted C.C. 146 in pertinent parts provided:
      A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:

      (1),To both parties jointly ...
      (2) To either parent ...
      (emphasis supplied)

      . The jurisprudence has long recognized that the primary concern of the courts in granting custody is the welfare and best interest of the child or children. See State v. Pulling, 209 La. 871, 25 So.2d 620 (1946); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Dean v. Dean, 210 So.2d 381 (La.App. 2d Cir.1968); Robertson v. Robertson, 215 So.2d 521 (La.App. 2d Cir.1968); Howes v. Howes, 388 So.2d 1182 (La.App. 4th Cir.1980).

      . Appellant’s attorney also stipulated that the only issue to be litigated on appeal is the jurisdictional question. We consider the joint custody issue out of fairness to appellant. Counsel's brief and oral argument could be interpreted as raising the issue.


author: McCLENDON, Judge Pro Tempore.

text:
    Walter BAILEY and Robert L. Bailey, Plaintiffs-Appellees, v. Huey Earl BAILEY et al., Defendants-Appellants.
    No. 16,065-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 11, 1984.
    Rothell & Cohn, Ltd., P.C. by David A. Rothell, Mansfield, for defendants-appellants.
    Gamble & Sledge by Claude R. Sledge, Mansfield, for plaintiffs-appellees.
    Before PRICE, MARVIN and McCLEN-DON, JJ.
   McCLENDON, Judge Pro Tempore.

In this succession proceeding plaintiffs, brothers of the decedent, William Marshall Bailey, sued to vacate a judgment of possession and to be recognized as the sole heirs of the decedent. The trial court ruled in favor of plaintiffs. From this adverse ruling defendant appeals, alleging the trial court erred in holding he was not the acknowledged natural child of the decedent and erred in accepting oral testimony contrary to the alleged acknowledgment. For the following reasons, we affirm.

William Marshall Bailey died intestate on June 14, 1980. He was survived by his wife, Mary Alice Bailey, and his two brothers, Walter and Robert L. Bailey. The decedent had no legitimate descendants, however he and his wife reared Huey Earl Bailey, the defendant, in their home from infancy.

The decedent left as his separate estate 13 and % acres of land located in DeSoto Parish. On November 24, 1980, the defendant and decedent’s surviving wife executed a mineral lease on the property. On July 29, 1981, defendant obtained a judgment of possession recognizing him as the only child and sole heir of the decedent and entitling him to possession of the separate estate. On August 21, 1981 the defendant granted to the surviving wife the right of habitation of the 13 and ⅜ acres of land.

It is undisputed that the defendant’s mother is Winnie Cook, the younger sister of decedent’s surviving wife. In 1947 Winnie Cook, then 19 years old, left Oklahoma and came to the home of the decedent and his wife in DeSoto Parish. While there she gave birth to the defendant. Soon after this birth, defendant’s mother returned to Oklahoma, leaving the defendant to be raised by the decedent and his wife.

Defendant was held out in the community as the child of decedent and his wife. When it became necessary to obtain a birth certificate to enroll the defendant in school, they named themselves as mother and father of the child on the birth certificate, although neither was actually a parent. The couple eventually put the defendant through college.

Based on these facts, the defendant claims that he is the natural child of the decedent and has been acknowledged as such. However, the trial court found, based on the following testimony, that the decedent was not the defendant’s father. Winnie Cook, the defendant’s mother, testified in deposition that the defendant’s father was Homer Holmes Stewart, her high school teacher in Oklahoma. Two relatives of the decedent testified that Winnie Cook was pregnant when she came to Louisiana from Oklahoma in 1947 to give birth at her sister’s home.

The only evidence to the contrary is the testimony of the decedent’s surviving wife, who testified the decedent told her he was Huey Earl Bailey’s father.

The record supports the trial court’s factual conclusion that the defendant, Huey Earl Bailey, was not the illegitimate child of the decedent, William Marshall Bailey. Because this finding of fact is not clearly wrong, it will not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Since the defendant was not the child of the decedent, illegitimate or otherwise, he was not susceptible of being acknowledged by the decedent. The acknowledgment articles are included in the La. Civil Code under Title VII, “Of Father and Child”. This title is divided into five chapters: “Of Children in General, Of Legitimate Children, Of Illegitimate Children, Of Adoption, and Of Paternal Authority.” The acknowledgment articles are in the chapter titled “Of Illegitimate Children.” Article 203 states:

The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child, (emphasis added)

Clearly, this article presupposes that the child claiming acknowledgment is the illegitimate child of the parent. Had the decedent desired for the defendant to inherit his separate estate, he could have accomplished this by a will or by adopting the defendant, but he did neither.

The defendant’s argument that the trial court erred in accepting the testimony of the defendant’s mother, Winnie Cook, which in effect defeated the purported acknowledgment, is also without merit. The defendant argues that Winnie Cook’s testimony lacked credibility. It is well settled that the determination of credibility is a function allocated to the trial court because of its better capacity to evaluate live witnesses compared with the appellate court’s access to the cold record. Green v. Farmers Insurance Co., 412 So.2d 1136 (La.App. 2nd Cir.1982).

For these reasons the trial court judgment is affirmed, at appellant’s cost.


text:
    Raymond Artis CALDWELL et al., Plaintiffs-Appellees, v. Clifford SHIPP et al., Defendants-Appellants.
    No. 16070-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Aylmer M. Wyche, III, Bossier City, for def endants-appellants.
    Blanchard, Walker, O’Quin & Roberts by J. Jay Caraway,- Shreveport, for plaintiffs-appellees.
    Before JASPER E. JONES, NORRIS and McClendon, jj.
   McCLENDON, Judge Pro Tempore.

When this appeal came to the attention of another panel of this court on a motion to dismiss the appeal, the majority found that the judgment appealed contained two decretal parts. It held as to the first decre-tal part that the appeal was not timely; as to the second part, which had been amended after the delays for appeal had passed, the appeal would be considered; and that the only issue to be considered on appeal is the validity of an ex parte order correcting the range number in the description of realty contained in the second decretal part.

In that ruling, 441 So.2d 808, the majority opinion, authored by Judge Marvin, expressed its views as to the validity of the amendment. Judge Hall concurred in the result reached by the majority but dissented from what he termed a premature holding that an amendment to correct a misde-scription of immovable property may be obtained only by contradictory motion. His reason was that the only issue before the court at that time was the motion to dismiss.

We conclude that, since it was unnecessary for the earlier panel to decide the validity vel non of the amendment to reach its decision on the motion to dismiss, its comments on the validity of the amendment to the judgment were dicta. This is especially so in view of its conclusion that “the only issue which may be considered on appeal is the validity of the order, obtained ex parte, to correct the description of realty in the original judgment.”

We now consider that issue with gratitude to both the majority and the dissenting member of the earlier panel for their thoughts.

Plaintiffs filed suit in the 26th Judicial District Court, Bossier Parish, to have a September 10, 1970 contract with the defendants declared to be a contract of sale; to require defendants to execute a deed in recordable form evidencing the sale of the property resulting from the contract; and claiming damages on account of an oil and gas lease to Discus Oil Corporation alleged to have been wrongfully executed by the defendants in 1980. Named as defendants were Clifford Shipp and Buddy Thomas, the then deceased husband and father of the other defendants.

The description of the property contained in the original petition is as follows:

“The Southeast Quarter of the Northeast Quarter of the Northwest Quarter (SE/4 of NE/4 of NW/4) of Section 22, Township 23 North, Range 13 West, lying West of the center line of Wise Road, LESS AND EXCEPT a one acre tract of land in the form of a square in the Southeast corner of the Southeast Quarter of the Northeast Quarter of the Northwest Quarter (SE/c of SE/4 of NE/4 of NW/4) (hereinafter referred to as the ‘Property’)”

That this is the property in controversy is not questioned at any time.

A copy of the oil and gas lease executed by defendants to Discus Oil is filed in connection with defendant Shipp’s deposition taken for purposes of discovery as Exhibit P-1. It describes the identical 8.5 acres of land in the same manner except to name the parties owning the “excepted” portions of the 10 acre tract.

In defendant Shipp’s deposition he admitted that he and Buddy Thomas had never owned any other tract of land together than the one involved in the contract with plaintiffs; that it was acquired by them from a Nathaniel Kraft before 1970; and is the same property covered by the oil and gas lease he and Buddy Thomas’ widow and heirs executed in 1980 in favor of Discus Oil Corporation.

Following this deposition counsel for plaintiffs filed a petition seeking a partial summary judgment to have the 1970 contract sued upon declared a contract of sale of the 8.5 acres described again in this petition and also to require defendants to execute a deed in recordable form evidencing the sale of this property which resulted from said 1970 contract.

Judge Cecil P. Campbell, the trial court judge to whom this summary judgment matter was presented, rendered an opinion in favor of the plaintiffs and signed a judgment granting the relief sought on April 8, 1983.

In that judgment there appears an error in the description in that the range number is given as “12” rather than “13”.

By ex parte motion to amend that judgment, plaintiff’s counsel pointed out the error and requested that the court amend it under authority of Article 1951 of the Louisiana Code of Civil Procedure as a clerical error.

On June 28, 1983, Judge Campbell signed an order in accordance with the motion, changing the range number contained in the description in the summary judgment to correctly reflect Range 13 West.

It is from this amended partial summary judgment rendered June 28, 1983, that plaintiffs appealed devolutively on September 7, 1983.

We find that the trial court judge was correct in amending the judgment to correct the clerical error under authority of LSA-C.C.P. Article 1951, which reads as follows:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation. Had this been the first or only the second

time this property had been described in the record and had there been a serious dispute as to what property had been covered by the original 1970 agreement, there would be some justification in requiring that defendants be heard via a contradictory motion before the error in the range number could be corrected.

There is not one scintilla of evidence as to controversy over the correctness of the description in the present case.

Counsel for appellants was quick to espouse in his brief the reference made earlier by the majority in its ruling on the motion to dismiss the appeal to the Official Revision Comments under C.C.P. Art. 1951(e) which we now quote in pertinent part:

(e) ... A contradictory motion is required, however, to amend judgments giving incorrect description of realty. Jackson v. Brewster, 169 So. 166 (La. App.1936); cf Succession of Corrigan, 42 La.Ann. 65, 7 So. 74 (1890)....

We find that neither case cited by the redactors of this code in support of the above quoted statement make any such holding.

Jackson v. Brewster, supra, involved a partition suit wherein, after the partition by licitation was ordered by default judgment and the sale had been held, it was discovered that the petition, not the judgment, contained an error in the description of the real property sought to be partitioned. The section number was erroneously given as “37” instead of Section 34 in the petition. The purchaser filed suit to correct that error and was successful. No error of description was contained in the judgment. To the contrary, and we quote from the Jackson opinion at page 167 as follows:

“It was properly described, however, in all other proceedings in that suit, including the judgment, the commission to sell, the advertisement, and the sheriffs proces verbal.” (emphasis added)

Nor does the Succession of Corrigan, supra, support the quoted Official Revision Comment. This was a 1890 partition suit wherein Thomas Ryan was called “Stephen” Ryan. There was absolutely no mention of an error in description of immovable property in the judgment,

We find no support for the Revision Comment in either of these cases and only examine them at length in an effort to determine why the comment was inserted.

Having found no reason for it, and having much earlier concluded that the trial judge in the present case was entirely correct in amending his judgment to correct the clerical or typographical error in the range number of the description, we affirm the amended judgment of June 28, 1983. Costs of appeal are assessed to the appellant.


text:
    Harold Wayne DOSS, Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY and Dr. George Belchic, Jr., Defendants-Appellees.
    No. 16,073-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 11, 1984.
    Campbell, Campbell & Johnson by James M. Johnson, Minden, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for defendants-appellees.
    Before PRICE, HALL and JASPER E. JONES, JJ.
   PRICE, Judge.

Plaintiff, Harold Wayne Doss, appeals a judgment in favor of defendant, Dr. George Belchic, Jr., and defendant’s insurer, Hartford Fire Insurance Company, in a medical malpractice action. The judgment of the trial court is affirmed for the following reasons.

The evidence reveals that plaintiff, Harold Wayne Doss, was a postal carrier and had been employed as a postman by the U.S. Postal Service since 1965. His duties entailed walking a route of approximately fifteen miles a day to deliver mail in Min-den, Louisiana.

Sometime in 1973 or 1974, Doss developed calluses on the bottom of his right foot which made walking extremely painful.

After removal of the calluses by cutting and burning proved unsuccessful, plaintiff consulted with defendant, Dr. George Belchic, Jr., an orthopedist in Shreveport, in August 1976. Dr. Belchic diagnosed plaintiff’s problem as metatarsalgia of the second and fifth metatarsal bones. Simply, metatarsalgia is a malalignment of the bones in the foot. This malalignment resulted in the growth of the painful calluses.

Dr. Belchic explained to Doss that there were two alternative forms of treatment, either surgery or the use of a metatarsal bar or pad in plaintiff’s shoe. Plaintiff elected to have the surgery which was performed at Highland Hospital in Shreveport, Louisiana on August 6, 1976.

The surgical procedure is known as a dorsal wedge osteotomy. An incision was made on the top of the foot and a small wedge or “v” was removed from each ma-laligned metatarsal bone. The procedure involved a surgical fracture of the bones. The purpose of the surgery was to allow the mal-aligned bones to seek the same level as the other metatarsal bones.

After the surgery, plaintiff continued to consult with defendant, Dr. Belchic, for post-operative evaluations until September 28, 1976, when plaintiff dismissed himself from Dr. Belchic’s care.

Doss testified that he continued to have pain and problems with his foot after the surgery. He was subsequently diagnosed as having a non-union of the second metatarsal bone which was resolved by a sliding bone graft performed by Dr. W.W. Fox in April 1978. A non-union is simply when the fracture fails to heal. The expert evidence at trial established that approximately 10 to 15 percent of osteotomies result in a non-union and even a smaller percentage of these non-unions become symptomatic. There appears to be no medical explanation as to why a non-union occurs in some patients. Plaintiff claims that his foot continued to be painful and problematic allegedly causing balance problems which resulted in a fall in 1981. This fall caused a serious back injury which eventually lead to plaintiff’s retirement from the U.S. Postal Service in 1982.

Initially plaintiff instituted this action asserting various alleged acts of medical malpractice on the part of the defendant, Dr. Belchic. After a trial on the merits, the jury found in favor of the defendants. On appeal, plaintiff has apparently abandoned his claims that the osteotomy was improperly performed and has limited his claim to the following issues:

(1) Did Dr. Belchic give plaintiff sufficient information to enable plaintiff to give informed consent to the dorsal wedge osteotomy; and
(2) Did this information have to be contained in written consent form to be valid under La.R.S. 40:1299.40?

The . consent of a patient, expressed or implied, is required prior to a surgical operation, and a surgeon who operates without such consent is liable in damages except in case of an emergency requiring immediate surgery for preservation of life or health, under circumstances in which it is impractical to obtain the consent of the patient or someone authorized to assume such responsibility.” Harwell v. Pittman, 428 So.2d 1049 (La.App. 1st Cir.1983) at p. 1053 and numerous citations therein. See also Rogers v. Brown, 416 So.2d 624 (La. App. 2d Cir.1982). “The patient’s consent must be an informed one, i.e., the physician has a duty to disclose all known information material to a patient’s intelligent decision to undergo a particular operation or therapeutic procedure. That information should include a description and explanation of the proposed diagnostic, therapeutic or surgical procedure contemplated, the material risks involved and any alternatives available.” Rogers v. Brown, supra at p. 630 and numerous citations therein.

At the trial, there was some discrepancy between plaintiff and Dr. Belchic as to the extent of the information plaintiff was given in regard to the proposed surgical procedure. Plaintiff claims he received little information about the surgery and specifically was not informed as to the possibility of a non-union. Dr. Belchic testified that he and the plaintiff discussed the surgery in detail and that he gave the plaintiff the usual information given to anyone contemplating a surgical procedure of this type. His testimony is as follows:

... First of all, you’re going to be put to sleep and you will not wake up or you may have a problem from anesthesia; you may die for various reasons related to anesthesia. However;, the anesthesia will be done under the supervision of the Anesthesia Department of whatever hospital and they are skilled at this. The next thing I say is you may get an infection in the site of surgery. This happens to Mayo Clinic, Oshner’s Clinic, everywhere. There is a certain percentage that it will happen in. However, the operation will be done in a hospital and in a operating room under' strictly sterile technique. Precautions would be taken, several days antibiotics will be administered, and my experience has been that it has been very low. The third thing I say is that any operation that involves any one of the lower extremities from the toe to the hip, whether it’s done following injury electively or as an emergency can cause blood clots to form in the veins in the lower extremity. In fact, probably some do. These blood clots will probably absorb slowly, but there is a possibility that one will form, break loose and become what is known as a pulmonary em-bolus. If this goes into the lung it can cause shortness of breath, great distress, prolonged stay in the hospital and death. Having covered what I think are the three major things, then I talk about the surgery itself. What I say is this: No matter how well the surgery is done the results may not be satisfactory to you. Maybe you’re not happy with the cosmetic appearance, you may not be happy with some other aspect of it, but nevertheless I cannot promise you you’ll be completely satisfied with the results. Then I say I’ll do my best but if you feel you have to have a guarantee that you’re going to be like you were before or like you were when you were eighteen then you need someone else to treat you. Then I do discuss, depending upon the operation, the details. I told him, for example, the scar of the surgery maybe sensitive for a while. However, the incision will be made length wise in the foot which is parallel to the blood vessels, nerves and tendons since they run from the ankle that way. The incision will be placed on top of the foot rather than the bottom so that if it is sensitive you won’t be walking on it.
In this case I told him the osteotomy is a surgical fracture, the fracture maybe slow to heal, a certain percentage don’t but of those even a smaller percentage are a problem or can be a problem. That’s about it. I also try to point out that if there is something you failed to ask me or if there is something I haven’t thought to tell you may occur and you may not be satisfied and you need to think about it now. (Emphasis added)

It is well-settled that the verdict of the jury should be affirmed by the appellate court unless the record reflects that the jury’s conclusions of fact are not supported by the evidence or the application of law by the jury is clearly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973). Further “... where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Canter v. Koehring Company, supra. At the trial, the jury had the benefit of personal observation of each witness, hearing their testimony and judging their credibility. The evidence supports the jury’s finding that Dr. Belchic orally gave sufficient information to Mr. Doss so as to enable plaintiff to give informed consent to the surgical procedure and he was specifically informed that a risk of the surgery was that the fracture may not heal.

Plaintiff argues that the information regarding the surgical procedure is required to be in a written consent form under La. R.S. 40:1299.40. The written form signed by plaintiff before his surgery was brief and simply stated that plaintiff consented to an osteotomy. No explanation or information as to the procedure was contained in the form. La.R.S. 40:1299.40 provides as follows:

A. Notwithstanding any other law to the contrary, written consent to medical treatment means a consent in writing to any medical or surgical procedure or ■ course of procedures which (a) sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures, (b) acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner, and (c) is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
B. Except as provided in Subsection A of this Section, no evidence shall be admissible to modify or limit the authorization for performance of the procedure or procedures set forth in such written consent.
C.Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (a) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

Sections A and B of the statute were enacted in 1975 and Section C of the statute was added in 1976.

A close reading of Section A, which was in effect at the time of plaintiff’s surgery, reveals that consent is not required to be in written form in order to constitute a valid consent. The statute merely defines the requirements of a written consent. It does not state that a patient’s consent must be in writing to be effective.

In addressing this issue, the Supreme Court stated that “... the written consent to medical treatment defined in Subsection A of R.S. 40:1299.40 does not purport to be exclusive.” LaCaze v. Collier, 434 So.2d 1039 (La.1983) at p. 1046. However, the “... addition of Subsection C the year after the first enactment of the ‘Uniform Consent’ law discloses a legislative intent to define the exclusive methods of obtaining consent to treatment.” “Between the limits of Subsection A and Subsection C, all kinds of consents are included.” LaCaze v. Collier, supra at p. 1046. Additionally, the Louisiana Medical Consent Law which was enacted in 1975 in conjunction with the Uniform Consent law implicitly recognizes the validity of oral consent. The statute enumerates specific persons who are authorized to consent to medical treatment. In pertinent part, La.R.S. 40:1299.53 states:

In addition to such other persons as maybe authorized and empowered, any one of the following persons is authorized and empowered to consent, either orally or otherwise, to any surgical or medical treatment or procedures.... (Emphasis added)

Thus, it is clear that at the time of plaintiff’s surgery, consent to an operation was not required to be in written form and oral consent was sufficient.

Even if plaintiff’s oral consent had not been valid, the evidence reveals that plaintiff failed to prove a lack of informed consent caused his alleged damages.

The causation test was outlined by the Supreme Court in LaCaze v. Collier, supra, as follows:

Lack of valid consent gives rise to an action for damages. In Louisiana, however, only compensatory damages can be recovered. The defendant can only be cast for those damages caused by the breach of duty. This element, in the jurisprudence, has been referred to as the “causation” element. Not only must the plaintiff show that the undisclosed risk actually occurred, but the plaintiff must also prove that if the risk had been disclosed, the treatment and the unwanted consequences would have been avoided. The plaintiff must prove that the failure to inform caused the damaging consequences. If the plaintiff would have undertaken the treatment in any event, in spite of the deficient “informed consent,” there could be no recovery.
Normally the question of causation is one for the trier of fact. In this case, neither the trial court nor the court of appeal reached the causation question since there was no duty found, and consequently, no breach. In determining causation, the finder of fact could consider the condition of the patient at the time of her decision and the necessity for the treatment. Also to be considered are the seriousness of the consequence not disclosed by the physician and the likelihood of the consequence occurring. The finder of fact could likewise consider what measures, if any, would be available for the correction of the consequence if it should occur, (at p. 1048)

From the record, it is apparent that Doss had suffered from the painful callosities for several years before he consulted with Dr. Belchic. He had tried trimming the calluses with a razor blade and had the calluses burned off twice, causing him to miss work, which provided only temporary relief. Doss was seeking permanent relief as his livelihood depended on being able to walk. It is clear that treatment of the painful calluses was necessary in order for plaintiff to fulfill his duties as a mail carrier. The resulting non-union occurs only in ten to fifteen percent of patients undergoing an osteotomy with even a smaller percentage causing subsequent problems in a patient. A corrective measure was available to resolve a non-union and was eventually performed by Dr. W.W. Fox.

Examining these factors, it is the opinion of this court that plaintiff would have undergone the surgical procedure in spite of any deficient consent.

For the foregoing reasons, the judgment of the trial court in favor of defendants, Dr. George Belchic, Jr., and Hartford Fire Insurance Company is affirmed at plaintiff’s costs.

AFFIRMED.


text:
    MASSEY-FERGUSON CREDIT CORPORATION, Plaintiff-Appellant, v. Samuel F. DOUGLAS, Jr., Defendant-Appellee.
    No. 16,074-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Denied May 11, 1984.

      Hudson, Potts & Bernstein by W. Lee Perkins, Jr., Monroe, for plaintiff-appellant.
    Burton L. Wade, St. Joseph, for defendant-appellee.
    Before JASPER E. JONES, NORRIS and McClendon, jj.
   McCLENDON, Judge Pro Tempore.

Plaintiffs demand for a deficiency judgment following the sale of mortgaged chattels under executory process was denied by the trial court, because the appraisal and the sheriffs sale took place on the same date contrary to LSA-R.S. 13:4363. Plaintiff appealed.

In late 1980 and early 1981, the defendant Douglas purchased two large items of farm equipment — a tractor and a combine — financed through the plaintiff corporation in two notes of $30,208.00 and $74,-114.34, respectively, secured by chattel mortgage on the equipment.

The mortgage contained the usual confession of judgment, waiver of delays and appraisal, as well as authorizing seizure and sale by executory process.

Defendant-appellee defaulted on the first payment due under each note, on October 1, 1981 and on January 1, 1982, respectively, and was in default on both obligations on the latter date.

Appellant filed a petition for executory process on both pieces of equipment on September 21, 1982. The equipment was seized on October 6, 1982.

The sheriff of Tensas Parish notified appellant’s counsel on October 7, 1982 to appoint an appraiser to appear on Monday before the sale on Wednesday, October 27, 1982 to appraise the property seized. The mortgaged property was both appraised and sold on October 27, 1982 for two-thirds of the appraised value.

When the suit for a deficiency judgment was tried on June 13, 1983, the trial judge ruled that plaintiff-appellant was not entitled to a deficiency judgment because LSA-R.S. 13:4363 required that the appraisal precede the sale by two days.

Counsel for appellant cites the case of Credithrift of America, Inc. v. Williams, 426 So.2d 339 (La.App.2d Cir.1983) rendered by this court, and then argues that it is distinguishable from the present case “on several important points.”

This court has been unable to find from counsel’s brief or from its own examination any real distinction between the basic holding of these cases.

It is true that Credithrift, supra, dealt with a sale made in 1980 when R.S. 13:4363 required appraisal two days before sale. The appraisal in that case was made one day before the sale rather than on the same day as in the present case.

It is also true that after Credithrift was decided the statute was changed in 1981 to do away with the requirement of appraisal two days prior to sale. However, this same statute had been changed again by the legislature in 1982 (Act 836) to again require appraisal two days prior to sale, and this change had been in effect from September 10, 1982, not quite two months before the sale on October 27, 1982.

This court is aware of how difficult it is, as an attorney (or a judge), to keep one’s self aware of the ever changing laws, and particularly the minor changes such as this particular one might appear to be. It is also keenly aware of that danger zone of time after the legislature meets and before West Publishing Company prints its Session Law Service covering in indexed form the changes, but it does not consider an oversight occurring therein reason to reverse itself.

“Executory process is a harsh remedy and one seeking to avail himself of executo-ry process must strictly comply with the letter of statutory requirements for its use.” Credithrift, supra, citing Chrysler Credit Corp. v. Stout, 404 So.2d 304 (La. App. 3rd Cir.1981).

In this case the appraisal and sheriff’s sale occurred on the same day in clear violation of the mandatory language of R.S. 13:4363. We conclude that the purported appraisal is invalid and it is as if there was no appraisal at all. Since an appraisal is required in order to obtain a deficiency judgment (La.C.C.P. 2771), the trial court was correct in denying the deficiency judgment.

We therefore affirm the trial court, at appellant’s cost.


author: HALL, Judge.

text:
    Charlotte Lynn London BOYETT, Plaintiff-Appellee, v. Jerry Lynn BOYETT, Defendant-Appellant.
    No. 16,091-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Wright & Hennen by Dennis Hennen, Monroe, for defendant-appellant.
    Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, West Monroe, for plaintiff-appellee.
    Before HALL and SEXTON, JJ., and McCLENDON, J. Pro Tern.
   HALL, Judge.

This is a habeas corpus proceeding to determine custody of a minor, Amber Lee Boyett, brought by her father, Jerry Lynn Boyett, against her maternal grandmother, Shirley London. The father appeals from a judgment awarding custody of the minor to the grandmother. For the following reasons, we affirm the judgment appealed.

On August 6, 1980, when the Boyett couple were divorced, the custody of their daughter was awarded to the mother. On August 8, 1983, following the mother’s incarceration for distribution of drugs, on the petition of the father alleging abandonment of the child by the mother whose whereabouts were unknown, custody of the minor was changed to the father. Approximately one and one-half to two years prior to that award, unbeknownst to the father, the grandmother had obtained custody of the girl through juvenile court proceedings in which the mother had relinquished custody in favor of the grandmother.

On August 10, 1983, the father filed for a writ of habeas corpus seeking to compel the grandmother to deliver the child to him. On August 17, 1983, the grandmother filed an answer and reconventional demand in response to the father’s petition alleging that she had raised the child since birth and that the child’s mother, Charlotte London Boyett, desired that custody be awarded to the grandmother, and praying that she be awarded custody of the minor. After trial, judgment denying the father’s demand and awarding custody to the maternal grandmother was rendered on August 18, 1983, and signed the following day. This appeal followed.

The father contends the trial court erred in not awarding him custody because there were no compelling reasons to deny him custody. He argues the trial court made no finding that he was unable or unfit to care for the child or that he had forfeited his superior, parental right to custody of the child through neglect or abandonment of the girl. In sum, he contends the trial court applied the wrong standard to this case and treated the matter as if two parents were contesting custody.

„ Citing LSA-C.C. Art. 146 B., as amended by Act 307 of 1982, the grandmother contends this award of custody was properly made in favor of a nonparent based upon a finding that awarding custody to the parent would be detrimental to the child and that the award to a nonparent was required to serve the best interest of the child.

The 1982 Amendment

After amendment by Act 307 of the 1982 Regular Session of the Legislature, effective January 1, 1983, LSA-C.C. Arts. 157 and 146 provided, in pertinent part, as follows:

“Art. 157. Custody of children; visitation rights of grandparents
“A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.”
“Art. 146. Custody of children pending the litigation
“A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
“(1) To both parents jointly. The court, shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. Such plan may include such considerations as the following:
“(a) Domiciliary arrangements for the child or children.
“(b) Rights of access and communication between the respective parents and the child or children.
“(c) Child support, if appropriate to the economic circumstances of the parents.
“(d) Any other matter deemed in the best interest of the child or children.
“(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent’s sex. The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody.
“(3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
“(4) To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
“B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings.” (emphasis added)

The opposing parties in this custody suit agree that LSA-C.C. Art. 146 governs this situation. They do not agree, however, on the effect of Act 307 of 1982 as it relates to custody disputes pitting a parent against a nonparent.

The father contends that the passage of Act 307 in no way changed the previously-existing, jurisprudentially-developed rules regulating custody awards which prefer a parent over a nonparent. Citing Wood v. Beard, 290 So.2d 675 (La.1974), as the most often cited pronouncement of these rules, he contends that, under the amended statute, in order to award custody to a nonpar-ent the court still must find the parent unable or unfit to provide a home for the child or find a forfeiture by the parent of the paramount or superior parental right to custody.

The grandmother contends that the amendment of LSA-C.C. Art. 146 changed prior law by specifically authorizing a custody award to a nonparent based upon the findings that an award of custody to the parent “would be detrimental to the child” and that “the award to a nonparent is required to serve the best interest of the child.” Whether or not the cited language works a change in the law, she further argues, the evidence presented in this case justifies the award of custody to a nonpar-ent even under the rules enunciated in Wood v. Beard, supra, and should be affirmed on that basis.

Our scrutiny of Art. 146 as amended by Act 307 convinces us that a change in the law has occurred. The prior jurisprudence had awarded custody to a nonparent in preference to a parent only in those situations in which the parent was unable or unfit to provide the child a home or had forfeited the otherwise superior parental right of custody. See Cawthorne v. Williams, 313 So.2d 915 (La.App. 2d Cir.1975), for example. The primary concern in making such awards was the welfare or best interest of the child, not simply the enforcement of parental rights. Wood v. Beard, supra at 677.

Under the article as amended, the primary concern remains the same but the judiciary has been given more freedom or latitude to pursue the goal of insuring that the best interest of the child is served in resolving custody disputes between parent and nonparent litigants. Presently, an award of custody to someone other than a parent can be made if it is found that awarding custody to the parent would be detrimental to the child and that the award to the nonparent is required to serve the child’s best interest. LSA-C.C. Art. 146 B.

Under prior law, custody awards to non-parents could be made in pursuit of the child’s best interest only under those conditions previously discussed, a forfeiture of paramount parental rights or a finding that the parent was unfit or unable to provide a home. However, the use of the word “detrimental” in the new act embraces a wider range of situations, including those previously recognized in the jurisprudence as cause for awarding custody to a nonparent. See 43 La.L.Rev. 759 at 774. It is reasonable to assume- that had the Legislature intended merely to codify the existing law in this area they would have incorporated into the statute the familiar and oft-cited phraseology of the jurisprudence concerning parental rights. Instead, they chose to utilize language which broadens somewhat the range of situations in which a nonpar-ent custody award is permissible. The amendment allows more freedom to pursue what has always been considered the primary consideration in custody cases, the best interest of the child or children involved.

However, this expansion of situations in which a nonparent custody award is permissible is coupled with a safeguard designed to prevent the needless erosion or abuse of the parents’ superior right to custody. Art. 146 B. provides that the non-parent award must be “required” to serve the child’s best interest. The use of the word “required” connotes necessity. In other words, the nature or extent of the detriment faced by the child under an award of custody to the parent must be such that it outweighs the parent’s otherwise superior right and makes it necessary or essential, in pursuit of the child’s best interest, that custody be awarded to the nonparent.

In sum, under Art. 146 as amended by Act 307 of 1982, a parent now enjoys a paramount right of custody which can be outweighed by a sufficiently grave detriment to the child’s best interest, present in awarding custody to that parent, which requires that custody be awarded to a non-parent.

The application of this standard to the case presently before us is our next concern.

Custody of the Child

The evidence relative to the relationship or environment the girl presently enjoys by living with her grandmother establishes the' following. The grandmother has provided a stable environment for the girl practically since her birth and has had continuous, physical custody of the child for at least four and one-half years prior to trial. Amber’s kindergarten teacher testified that the child was healthy, clean, and appeared to be well cared for while a student in her class. She further testified that the girl and her grandmother appeared to enjoy a normal, loving relationship and that the grandmother took an active part in the child’s school activities. Shirley London, the grandmother, testified that she and Amber often engage in various activities together after the child returns home from her day at school. There is no indication in the record of any financial instability in the child’s present environment.

Most of the evidence presented in this case deals with the fitness of the father, Jerry Boyett, to be awarded custody of his daughter, that is, whether or not there existed compelling reasons for denying the father custody. Under prior jurisprudence, this burden rested with the grandmother. State In Interest of Jones v. Jones, 430 So.2d 169 (La.App. 2d Cir.1983); Jones v. Jones, 415 So.2d 300 (La. App. 2d Cir.1982). Under the new act, given the order of preference established for awarding custody and the nature of the findings which must be made in order to justify an award to a nonparent, the burden of proving that, due to the detrimental aspects of awarding the parent custody, an award of custody to a nonparent is required to serve the child’s best interest continues to rest with the nonparent.

The grandmother presented evidence that the father has a drinking problem and an unstable employment history, had physically abused another daughter by a previous marriage who was subsequently placed in foster care for between three and one-half and four years prior to being placed in the custody of her paternal grandmother, and had expressed no interest in the other daughter while she was in foster care and no concern for or interest in Amber during the more than four , and one-half years in which she has been in Shirley London’s care and custody. There was also testimony that a great deal of drinking and cursing routinely goes on around Jerry Boyett’s residence. There was additional testimony that marijuana was routinely being smoked by visitors to the Boyett residence. These observations concerning alcohol and substance abuse, as well as the use of profane language, were made by individuals visiting the Boyett residence for various reasons more or less regularly over a period of time which included the six months immediately preceeding trial of this matter.

Jerry Boyett admitted he had a drinking problem and unstable employment history in the past, but presented evidence, the testimony of his mother and siblings, in an attempt to establish that during the past two or three years he has overcome his alcohol abuse and has been steadily employed. He testified that, while he still drinks, he now drinks no more than two cans of beer per night. This testimony is corroborated by most of his witnesses. However, it was flatly contradicted by the testimony of the frequent visitors to the Boyett residence, as well as the testimony of one of his brothers who said that Boyett still drinks in the amounts that he always did. The father’s witnesses corroborated his testimony that he has been employed fairly steadily for the past two or three years. The father also testified that on the one occasion when he discovered marijuana smoking at his residence he stopped it and further testified that he does not condone or allow such behavior.

The testimony of all the witnesses indicates that Boyett has made very little if any attempt to have contact with Amber in at least the past four and one-half years prior to filing this suit. He testified he sent her no presents, cards, or letters during that time but did talk with her on the phone a couple of times. Shirley London testified Amber received no such phone calls.

The essence of the father’s contention is that he has been denied access to the child since he and his ex-wife physically separated more than four and one-half years ago. However, the preponderance of the testimony, including that of his mother with whom he has been residing since that time, is that, rather than being denied access, Boyett has made no real attempt to contact his child or become involved in her life as a parent should. Based on this evidence, the trial court found Boyett had not effectively exercised parental responsibility for Amber throughout most of her life and had made little or no effort to have contact with the girl. We agree with that conclusion.

The trial court found the testimony presented cast a grave doubt on the father's professed reformation and found that an award of custody to the father would be detrimental to the child. Accordingly, the court elected to award custody to the maternal grandmother who had been providing the child with a stable and wholesome environment since the child’s birth. We agree that the award to the grandmother was required in this instance to serve the best interest of the child. An award to a nonparent in whose home the child has been living in a wholesome and stable environment is specifically authorized, upon the requisite findings, by LSA-C.C. Art. 146 A.(3). We find no abuse of the trial court’s great discretion in the decision to award the grandmother custody, and, accordingly, affirm the judgment appealed.

Decree

For these reasons, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . The amendment of LSA-C.C. Art. 146 by Act 695 of 1983, effective after the trial of this proceeding, made no change pertinent to this controversy.