author: h MIRIAM G. WALTZER, Judge.

text:
    STATE of Louisiana v. Gerald JONES, et al.
    No. 2002-K-1931.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2002.
    Writ Denied Dec. 4, 2002.

      Harry F. Connick, District Attorney, Kathleen Billings, Assistant District Attorney, New Orleans, LA, for Plaintiff-State of Louisiana.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge PATRICIA RIVET MURRAY).
   h MIRIAM G. WALTZER, Judge.

The prosecution invokes our supervisory jurisdiction to review the granting of a motion to suppress by the court below. We affirm the trial court’s ruling.

STATEMENT OF THE CASE

On 19 July 2001, Gerald Jones was charged with one count each of distribution of cocaine, distribution of marijuana , possession with the intent to distribute cocaine, and possession of a firearm while in possession of cocaine. In the same bill of information Samuel Raiford was charged with three counts of distribution of cocaine. Both defendants have pled not guilty to the charges. On 18 January 2002, the court heard and granted the motion to suppress the evidence. The court also set a trial date. In response to the State’s emergency writ, which apparently did not include the transcript of the suppression hearing, this court reversed the trial court’s ruling and remanded the case. State v. Jones, unpub. 2002-0419 (La.App. 4 Cir. 3/8/02). The Supreme Court denied writs. State v. Jones, 2002-0993 (La.5/22/02), 815 So.2d 851.

On 10 July the defendant moved to reopen the motion hearing, which the trial court granted on 25 July. On 23 August, the court heard and again granted the motion to suppress. The State now comes before this court seeking relief from this ruling. The State also requests the issuance of a stay in this matter; after the State filed its application the court set a trial date of 7 November 2002.

\ .FACTS

Officer Wayne Jacques was the only witness to testify at the 18 January 2001 suppression hearing, which was the only hearing at which testimony was taken. Off. Jacques testified that sometime prior to 18 April 2001 while working undercover, a confidential informant had introduced him to a man called “Dinky”, who he later learned was the defendant Samuel Raiford. Off. Jacques testified that Raiford gave him his cell phone number and instructed the officer to call him if he wanted to purchase any cocaine. Off. Jacques stated he also learned that Raiford was connected to a residence in the 2000 block of Allen Street and to another residence in the 1900 block of Frenchmen Street.

Off. Jacques testified that on 18 April 2001 he called Raiford and told him he wanted to buy some cocaine. The men negotiated a deal. Off. Jacques stated that later that evening he met Raiford in the 1800 block of N. Miro Street. He testified Raiford parked next to his vehicle, and Off. Jacques got into Raiford’s vehicle. Raiford told him he didn’t have the cocaine with him at that time, but he could get it nearby. Off. Jacques exited Raiford’s car and went back to his vehicle to wait. Rai-ford drove from the block, and officers began following him, but they soon lost him. However, he shortly showed up in the 1900 block of Frenchmen, where other officers were conducting a surveillance. Those officers saw him enter a residence at 1921 Frenchmen, where he remained a short time. Raiford left the residence and drove back to the 1800 block of N. Miro. Off. Jacques again entered Raiford’s car, and Raiford gave him cocaine in exchange for $1000. Off. Jacques exited his ear, and Raiford drove from the scene.

Off. Jacques testified he attempted a few times after 18 April to set up another drug transaction, but it was not until 1 May 2001 that he was able to do so. On that date, he called Raiford and told him he wanted to buy two ounces of cocaine. Rai-ford told him to call back later, and they eventually agreed to meet in the 2000 block of Allen Street. When Off. Jacques arrived at that location, Raiford was waiting for him. Raiford again told him he did not have the drugs on him, and he indicated he needed to contact his supplier. Off. Jacques testified Raiford used his cell phone to call a man named “Fat”. Soon thereafter a man later identified as the defendant Gerald Jones drove up and parked in the driveway at 2011 Allen. Jones exited his car and spoke with Rai-ford, and Raiford then went to Off. Jacques, who told him he only needed one Isounce of cocaine. Off. Jacques gave Rai-ford money for the cocaine. Raiford walked back to Jones, and both men went inside the Allen Street residence. When they exited, Raiford was carrying a bag which he gave to Off. Jacques. The bag contained one ounce of cocaine. The parties dispersed, and some officers followed Jones back to the Frenchmen address and saw him enter.

Off. Jacques testified that he obtained an arrest warrant for Raiford, and on 18 May 2001 he again contacted Raiford and told him he wanted to buy an ounce of cocaine. At that time, the officers had also established a surveillance of the Frenchmen Street residence. Raiford told Off. Jacques he needed to make a phone call to set up the deal. Officers saw him enter the Frenchmen residence, and Raiford called Off. Jacques from inside the residence, told him he had the cocaine, and told him to meet him on Allen Street. The officers watched Raiford leave the Frenchmen residence and drive to the 2000 block of Allen Street, where he met with Off. Jacques. Off. Jacques testified Raiford handed him a disposable diaper inside of which was the ounce of cocaine. In exchange, Off. Jacques gave him $800 in prerecorded bills. After Raiford left, other officers arrested him and found the prerecorded bills. Off. Jacques went to get a search warrant for the Frenchmen Street residence, while other officers went to that residence and entered it to secure it prior to the issuance of the warrant, Raiford’s arrest having occurred somewhere near the Frenchmen Street residence. Off. Jacques testified that pursuant to the search of 1921 Frenchmen Street, the officers seized approximately one and half ounces of cocaine, a small amount of marijuana, a firearm, approximately $1600, and documentation in Jones’ name.

On cross-examination, Off. Jacques testified neither he nor any other officer saw cocaine on Jones’ person. Off. Jacques admitted the police report indicated the officers did not receive any consent to search the Frenchmen Street residence. He testified that although he was not present during the search, he was told that Jones was arrested after the contraband was found in his house. He also admitted that police documents listed the time of Jones’ arrest as 3:25 p.m. and the time of the seizure of the evidence as 3:21 p.m., but the search warrant was not signed until 3:54 p.m. Off. Jacques then admitted that the officers searched the house prior to the issuance of the warrant. He also admitted that the search warrant affidavit did not mention that |4the house had already been searched, nor did he inform the magistrate that the officers had already searched the house.

DISCUSSION

At the conclusion of the 18 January 2002 hearing, the trial court suppressed the evidence seized from the house, finding that the evidence was seized prior to the issuance of the search warrant, and the State failed to present any evidence that the officers had consent to search the house prior to the issuance of the warrant.

The State noted its intent to seek writs, and by the time it filed its application in this court the application was filed as an emergency writ because trial was pending. This court reversed the trial court, finding the search of the residence prior to the issuance of the warrant was lawful because Jones had consented to the search. The transcript of the suppression hearing was not included in the emergency writ application, and it appears this court thought Jones had consented to the search due to allegations to that effect in the State’s application. However, the transcript indicates that not only did the State not present any evidence of this consent, Off. Jacques admitted there was no consent to search. This court also found that the search was lawful because there was probable cause for the issuance of the warrant, and the officers would have inevitably discovered and seized the evidence if they had waited for the warrant. The Supreme Court denied writs.

The defendants subsequently moved to reopen the suppression hearing based upon the U.S. Supreme Court’s ruling in Kirk v. Louisiana, 536 U.S. 635, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). In Kirk, the officers had received a tip concerning drug sales from the defendant’s residence. The officers watched several drug transactions and then stopped one buyer on the street outside the defendant’s residence. Because the stop was near the residence, the officers knocked on defendant’s door, entered the house, arrested the defendant, and “secured” the residence while they obtained a search warrant. A search incident to the arrest netted drugs, and the officers also saw contraband lying in plain view. The defendant was convicted, and on appeal he contended the evidence should have been suppressed because the officers were not justified in entering the residence in the absence of exigent circumstances. This court affirmed his conviction, finding | .¿hat because the officers had probable cause to arrest him, there was no need for this court to determine whether there were exigent circumstances to allow them to enter. State v. Kirk, 2000-0190 (La.App. 4 Cir. 11/15/00), 773 So.2d 259. The Louisiana Supreme Court denied writs. State v. Kirk, 2000-3395 (La.11/09/01), 801 So.2d 1063.

The U.S. Supreme Court reversed. The Court looked to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where that Court held that officers cannot enter a residence to effectuate a warrantless arrest, absent exigent circumstances. The Court noted that the officers entered Kirk’s home without an arrest or a search warrant, and that this court specifically did not make a determination of whether there were exigent circumstances which would have allowed them to enter the residence. The Court stated: “As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. The Court of Appeal’s ruling to the contrary, and consequent failure to assess whether exigent circumstances were present in this case, violated Payton.” 447 U.S. at 756, 100 S.Ct. at 2459. The Court declined to make a finding as to the presence or absence of exigent circumstances in the case, remanding the case “for further proceedings not inconsistent with this decision.” Id.

In the present case, the State argues the officers were justified in entering Jones’ residence because they had probable cause to believe there were drugs at the residence, and the arrest of Raiford “near” Jones’ residence gave them exigent circumstances to enter without the warrant. In State v. Page, 95-2401, p. 10 (La.App. 4 Cir. 8/21/96), 680 So.2d 700, 709, this court discussed the warrantless entry into a protected area:

There is a justified intrusion of a protected area if there is probable cause to arrest and exigent circumstances. State v. Rudolph, 369 So.2d 1320, 1326 (La.1979), cert. den., Rudolph v. Louisiana, 454 U.S. 1142, 102 S.Ct. 1001[, 71 L.Ed.2d 294] (1982). Exigent circumstances are exceptional circumstances which, when coupled with probable cause, justify an entry into a “protected” area that, without those exceptional circumstances, would be unlawful. Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of evidence. State v. Hathaway, 411 So.2d 1074, 1079 (La.1982).

hSee also State v. Julian, 2000-1238 (La. App. 4 Cir. 3/4/01), 785 So.2d 872; writ den. 2001-1247 (La.3/22/02), 811 So.2d 920; State v. Brown, 99-0640 (La.App. 4 Cir. 5/26/99), 733 So.2d 1282.

At the 23 August 2002 hearing in this case, the trial court found that Kirk was controlling. The court noted that in January, it found the State failed to show any exigent circumstances which would have allowed the officers to enter Jones’ residence prior to the issuance of the search warrant. The State now argues that there were exigent circumstances in that Rai-ford’s arrest was “near” Jones’ residence, and Raiford was returning to Jones’ residence when he was arrested. However, the transcript is not clear how far away from the residence the officers arrested Raiford, and indeed in its present application to this court the State notes the arrest took place approximately five blocks from the Frenchmen Street residence. In addition, there is no indication in the transcript that Raiford was on his way back to the residence when he was arrested.

Off. Jacques admitted that the officers had at least two arrest warrants for Rai-ford at the time of the 18 May transaction, one each having been obtained after the 18 April and 1 May buys. In addition, although Off. Jacques did not try to get the search warrant for the Frenchmen Street residence until after the 18 May buy, the officers at least had an idea they were going to try to get that warrant on that date because Off. Jacques testified he had partially typed the affidavit for the search warrant and only had to add the paragraphs concerning the 18 May transaction before presenting the affidavit and application to the magistrate. Thus, as brought out at the 18 January hearing by Jones’ counsel, the officers had probable cause prior to the 18 May transaction to believe there were drugs in the Frenchmen Street residence and they could have gotten a search warrant prior to that transaction, but instead they merely got the arrest warrants for Raiford and waited until he was arrested and they had entered the Frenchmen Street residence to “secure” it before trying to get the search warrant for that residence. In addition, the officers chose to arrest Raiford after he left the Allen Street location, speculatively on his way back to the Frenchmen Street residence. As such, there, is merit to defense counsel’s argument that any “exigent circumstances” in this case were created by the officers’ decisions to wait to get the search warrant and to arrest Raiford “near” the residence. Thus, the trial court did not abuse its |7discretion by finding there were no exigent circumstances which would have allowed the officers to enter the residence prior to obtaining the warrant.

The officers searched the Frenchmen residence prior to the issuance of the search warrant for that residence. As noted above, this court initially granted the State’s earlier writ partially on the basis of the State’s assertion in its application that Jones consented to a search of the residence. However, the transcript reveals that the State presented no evidence of this consent, and indeed Off. Jacques testified there was no consent given. The other basis for this court’s earlier ruling was that the evidence did not need to be suppressed because the evidence would have inevitably been discovered once the officers obtained the warrant. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), the Court noted there are three exceptions to Wong Sun’s exclusionary rule: the independent source doctrine, the inevitable discovery doctrine, and the attenuation doctrine. See also State v. Welch, 449 So.2d 468 (La.1984); State v. Irby, 93-2220 (La. App. 4 Cir. 2/4/94), 632 So.2d 801. As this court noted in State v. Tassin, 99-1692, pp. 4-5 (La.App. 4 Cir. 3/15/00), 758 So.2d 351, 354:

In Nix v. Williams, 467 U.S. 431, 446-47, 104 S.Ct. 2501, 2510-11, 81 L.Ed.2d 377 (1984), the Supreme Court held that the exclusionary rule does not apply when the State proves that the unconstitutionally obtained evidence would inevitably have been found in a constitutional manner. “The court’s decision was based on its belief that it is unfair to penalize the government through application of the exclusionary rule where the police would have obtained the evidence even if no misconduct occurred.” State v. Garner, 621 So.2d 1203,1208 (La.App. 4 Cir.1993), writ denied, 627 So.2d 661 (La.1993).

Here, there was probable cause for the issuance of the warrant. Off. Jacques conducted three undercover buys of drugs from Raiford, and in two of those buys (including the 18 May transaction) Raiford got the cocaine from the Frenchmen Street residence; in the third, Jones (who lived at the Frenchmen Street residence) arrived on Allen Street, and both he and Raiford entered the Allen Street residence to get the cocaine. Given these factors, there was probable cause to believe there was cocaine in the Frenchmen Street residence, and thus there was probable cause for the issuance of the warrant. See State v. Powell, 2001-0638 (La.App. 4 Cir. 12/12/01), 804 So.2d 802; State v. Hoffpauir, 99-0128 (La.App. 4 Cir. 4/7/99), 731 So.2d 1026; State v. Page, supra.

It is not clear, however, that the fact that the officers eventually got the warrant would save the warrantless search in this case. In Kirk, the officers entered the house and found drugs in plain view. They obtained a search warrant while they detained the defendant in his home. Nevertheless, the U.S. Supreme Court vacated the defendant’s conviction and sentence, even though they ultimately obtained the search warrant for the residence, because there was no finding of exigent circumstances which justified their prior entry into the residence. Here, the court found no exigent circumstances, and for the reasons set forth above, the trial court may well have been justified in so finding due to the fact that any “exigency” in this case was due to the officers’ actions (or inac-tions) rather than to circumstances beyond the officers’ control. Under Kirk if there were no exigent circumstances to support the entry, the subsequent issuance of the search warrant would not cure the taint of the illegal entry. Indeed, the situation here is much worse than that in Kirk because in Kirk there was no indication the officers searched the residence prior to the issuance of the warrant. Here, the evidence showed the officers did not wait for the issuance of the warrant, but instead began searching the residence as soon as they entered, and there was no evidence of any consent to search prior to the issuance of the warrant. As such, under Kirk, the subsequent issuance of the search warrant could not be applied retroactively to the prior search to remove the taint of the illegal entry.

The determining factor of this writ appears to be whether there were exigent circumstances for the officers to enter the Frenchmen Street residence prior to the issuance of the warrant. In State v. Scull, 93-2360, p. 9 (La.App. 4 Cir. 6/30/94), 639 So.2d 1239, 1245, this court stated: “The trial court is vested with great discretion when ruling on motion to suppress.” See also State v. Briley, 2001-0143 (La.App. 4 Cir. 10/3/01), 798 So.2d 1191. Given the actions of the officers in this case, the trial court did not abuse its discretion by finding no exigent circumstances and suppressing the evidence seized from the Frenchmen Street residence.

I ^APPLICATION FOR SUPERVISORY WRITS GRANTED. JUDGMENT OF THE TRIAL COURT ON MOTION TO SUPPRESS AFFIRMED. REQUEST FOR STAY DENIED.

      . This court was later amended to charge possession with the intent to distribute marijuana.

      . This count was later amended to charge possession of at least 28 but not more than 200 grams of cocaine.


source: Caselaw Access Project

author: STEVEN R. PLOTKIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Cyntrell ARMSTEAD, a/k/a Kentrell Smith.
    No. 2002-KA-1030.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2002.

      Harry F. Connick, District Attorney, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laurie A. White, Law Office of Laurie A. White, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER, Judge TERRI F. LOVE).
   STEVEN R. PLOTKIN, Judge.

The defendant appeals her convictions for attempted possession with intent to distribute cocaine and attempted distribution of cocaine. The first issue raised on appeal is whether there was sufficient evidence to convict the defendant on charges of attempted distribution of cocaine and attempted possession with intent to distribute cocaine. The next issue is whether the prohibition against double jeopardy was violated when the trial court found the defendant guilty of both offenses arising out of the same events. The final issue is whether the trial court erred when it denied defendant’s motion to suppress the evidence. For the reasons below, we affirm the decision of the trial court.

PROCEDURAL HISTORY

The defendant, Cyntrell Armstead, was charged by bill of information with possession with intent to distribute cocaine and distribution of cocaine in violation of La. R.S. 14:967(B)(1). The defendant entered a plea of not guilty and counsel for the defendant filed motions, including motions to suppress confession and evidence. The trial court heard the motions, which were opposed by the State, and after hearing testimony from Officer Michael Cahn, the trial court denied the motions to suppress and found probable |?cause for possession with intent to distribute cocaine. The trial court did not make a specific ruling as to probable cause for distribution of cocaine.

A bench trial in this matter was held, and the defendant was found guilty of attempted possession with intent to distribute cocaine and attempted distribution of cocaine. The State filed a multiple bill charging the defendant as a second felony offender, which the defendant initially contested. The defendant subsequently admitted to being a multiple offender, and the trial court sentenced her to seven years and six months on each count, pursuant to La. R.S. 15:529.1.

STATEMENT OF FACTS

At the trial, the State first called Officer Michael Cahn, who testified that he was on patrol on May 29, 1998 at approximately 6:30 p.m. in the 1200 block of Columbus Street in New Orleans. He and his partner, Officer Bret Pittman, were in a marked police vehicle in full uniform. As they approached the apartments at 1218 Columbus Street, where they had made numerous narcotics arrests in the past, he observed the defendant and another female, Rebecca Holbrook, engage in a hand-to-hand drug transaction. In particular, the officer testified that he observed the two women engage in brief conversation, Holbrook hand the defendant currency, and the defendant place a small white object in Holbrook’s hand. As they neared, the officer saw the defendant look at the marked police vehicle, turn around, and start to walk away toward the apartment building while “shoving something in the small of her back in her pants.” The officer testified that he believed the defendant was stuffing contraband into the back of her pants. Officer Pittman gave chase to the defendant while Officer Cahn grabbed Holbrook, who was still holding something in her right hand. The substance retrieved from Holbrook later tested positive for cocaine.

laWhen Officer Cahn arrived at the apartment, he observed the defendant sitting in a room with two juveniles. Officer Pittman handcuffed the defendant and advised her that she was under arrest for distribution of crack cocaine. The defendant had been patted down for weapons, and the officers, who are male, called for a female officer to conduct a strip search of the defendant based on the officer’s observation of the defendant stuffing something in the back of her pants. Officer Gerldine Daniels, a female officer from the Fifth District, responded to the call. The handcuffs were removed from the defendant, and Officer Daniels took the defendant to a back room of the apartment, leaving the door slightly ajar. Officer Cahn testified that he observed the strip search from the hallway in the interest of officer safety.

The defendant removed her clothing, and while nude, refused to reveal the contents of a hand she kept pressed to her buttock. Officer Daniels reached toward the defendant’s hand, the defendant began to fight the female officer, and the bag in the defendant’s hand broke open, spilling thirty to forty pieces of crack cocaine onto the floor. Officer Cahn assisted Officer Daniels in restraining the defendant, and he identified the bag of crack cocaine at the trial as the bag that fell to the floor during the struggle, and the State entered the bag into evidence. A lab report confirming that the substance from the bag tested positive for cocaine was also entered into evidence. Officer Cahn identified the single piece of crack cocaine he retrieved from Holbrook’s hand, and the State entered that piece of cocaine into evidence along with a lab report confirming the substance as cocaine. Officer Cahn identified two hundred and seventeen dollars in U.S. currency that was retrieved from the right hand pocket of defendant’s pants, which was also offered into evidence by the State.

|4Officer Daniels testified for the State that she was the female officer called to assist with the search of the defendant on May 29, 1998. Officer Daniels stated that she conducted the strip search of the defendant in a second bedroom of the apartment and that the defendant cooperated' by undressing herself. When the defendant was almost finished undressing, the officer noticed a plastic bag under her right palm, which she kept against her buttock. When the officer asked the defendant to bend over, to move her hand, or to extend her hand, the defendant pulled away. At that point, a large quantity of rock like substance spilled on the floor from under her right palm. Officer Cahn assisted Officer Daniels as she struggled with the defendant. Officer Daniels identified the bag and the evidence contained therein as the substance she observed falling from the defendant’s hand. Officer Daniels testified that the door to the bedroom was practically closed, with the crack small enough to prevent anyone from observing the strip search. Officer Daniels testified that the defendant’s outrage and the ensuing struggle was unrelated to being nude or the entry of the male officer into the bedroom, stating that the defendant exhibited outrage before entering the bedroom.

ERRORS PATENT

A review of the record for errors patent reveals the trial court erred in the sentence it imposed upon the defendant. The court imposed the minimum sentence allowed by law for attempted possession with the intent to distribute cocaine as a second offender and for attempted distribution of cocaine as a second offender, seven and one-half years. However, the court erred by failing to order that the sentence was at hard labor and that the first | ¡¡two and one half years of each sentence be served without benefit of parole, probation, or suspension of sentence. State v. Dunbar, 2000-1896 (La.App. 4 Cir. 8/8/01), 798 So.2d 178, 181. Thus, the sentence imposed by the trial court was illegally lenient.

In instances where statutory restrictions are not recited at sentencing, La.Rev.Stat. Ann. 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. State v. Williams, 2000-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799.

ASSIGNMENT OF ERROR NUMBER 1

The defendant first argues that there was insufficient evidence to convict the defendant of both attempted distribution of cocaine and attempted possession with intent to distribute cocaine. In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court is not permitted to consider just the evidence most favorable to the prosecution but must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, 523 So.2d 1305; Green, 588 So.2d 757. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).

In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson, but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

In the instant case, the defendant was convicted of attempted possession of cocaine with the intent to distribute. In State v. Page, 95-2401, p. 28 (La. App. 4 Cir. 8/21/96), 680 So.2d 700, 717, this Court stated:

To prove that a defendant attempted to possess a controlled dangerous drug, the State must prove that the defendant committed an act tending directly toward the accomplishment 17of his intent, i.e. possession of the drugs. State v. Chambers, 563 So.2d 579 (La.App. 4th Cir.1990). Moreover, the State need only establish constructive possession, rather than actual or attempted actual possession of cocaine, to support an attempted possession conviction. State v. Jackson, 557 So.2d 1034 (La.App. 4th Cir.1990). A person found in the area of the contraband can be considered in constructive possession if the illegal substance is subject to his dominion and control. State v. Trahan, 425 So.2d 1222 (La.1983). An intent to distribute can be inferred from the quantity found in the defendant’s possession. Trahan, supra.

Determining whether the defendant had constructive possession depends upon the circumstances of each case; and among the factors to be considered in determining whether the defendant exercised dominion and control sufficient to constitute constructive possession are: whether the defendant knew that illegal drugs were present in the area; the defendant’s relationship to the person in actual possession of the drugs; whether there is evidence of recent drug use; the defendant’s proximity to the drugs; and, any evidence that the area is frequented by drug users. State v. Allen, 96-0138 (La.App. 4 Cir. 12/27/96), 686 So.2d 1017. However, the mere presence of the defendant in an area where drugs are found is insufficient to prove constructive possession. State v. Collins, 584 So.2d 356 (La.App. 4 Cir. 1991).

The defendant was also convicted of attempted distribution of cocaine. La. R.S. 40:967 provides that it shall be unlawful for any person “knowingly or intentionally ... [t]o ... distribute, or dispense, a controlled dangerous substance classified in Schedule II.” Cocaine and its derivatives are listed in Schedule II. La. R.S. 40:964. A defendant is guilty of distribution of cocaine when he transfers possession or control of cocaine to his intended recipients. State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; see La. R.S. 40:961(14). To support a conviction for attempted ^distribution of cocaine, “the State must prove that the defendant had the specific intent to commit the crime and did or omitted some act toward accomplishing his goal.” State v. McGee, 98-2116 (La.App. 4 Cir. 2/23/00), 757 So.2d 50, 58. A person may be convicted of an attempt to commit a crime even where it appears that the defendant actually perpetrated the offense. La. R.S. 14:27; McGee, 98-2116, 757 So.2d 50, 58. To convict for distribution of cocaine, the state must show (1) “delivery” or “physical transfer;” (2) guilty knowledge of the controlled dangerous substance at the time of transfer; and (3) the exact identity of the controlled dangerous substance. McGee, 98-2116, 757 So.2d 50, 58, citing State v. Miller, 587 So.2d 125, 127 (La.App. 2d Cir.1991).

In the case at bar, the police officer testified that he observed the defendant engage in a hand-to-hand narcotics transaction. He stated he watched as the defendant took currency from a female and gave her a small object. The officer further stated that he observed the defendant stuff something down the back of her pants. The officer then detained the female while his partner pursued and detained the defendant. The officer was present when the bag of additional rocks of cocaine held by the defendant in her hand broke open during a struggle with the female officer. United States currency in the amount of two hundred and seventeen dollars was found on the defendant’s person. The testimony of the officer that he observed the defendant engage in a narcotics transaction and the discovery of additional rocks of cocaine and two hundred and seventeen dollars on the defendant’s person were sufficient evidence for the trial court to conclude that the defendant was guilty of attempted possession with the intent to distribute cocaine and attempted distribution of cocaine. This assignment of error is without merit.

^ASSIGNMENT OF ERROR NUMBER 2

The defendant next argues that she was twice put in jeopardy for the same offense when the State was permitted to charge both distribution of cocaine and possession with intent to distribute cocaine. Charging a defendant with both distribution of cocaine and possession with intent to distribute cocaine does not violate the double jeopardy clause, where a defendant committed two separate and distinct acts, such as distributing cocaine to an individual and then, upon arrest, being found in possession of more drugs. State v. Baptiste, 99-0288, p. 2 (La.App. 4 Cir. 3/29/00), 759 So.2d 173, 174. As discussed in assignment of error number one, it appears that the evidence was sufficient to show that the defendant committed two distinct acts. Therefore, charging the defendant with both distribution of cocaine and possession with intent to distribute cocaine does not violate the double jeopardy clause. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3

The defendant contends that the prohibition against double jeopardy was violated when the trial court found the defendant guilty of both attempted distribution of cocaine and attempted possession with intent to distribute cocaine when both charges arose out of the same offense. The Louisiana Supreme Court in City of Baton Rouge v. Ross, 94-0695 (La.4/28/95), 654 So.2d 1311, 1345 stated:

In State v. Carouthers, 607 So.2d 1018, 1028 (La.App. 3 Cir.1992), vacated on other grounds, 618 So.2d 880 (La.1993), the court of appeal found that where nine rocks of cocaine seized in the defendant’s room were used to prove possession of cocaine with intent to distribute, and two other rocks sold to an undercover officer were used to prove distribution of cocaine, no double jeopardy attached because the “same evidence” was not used to secure each conviction. Ca-routhers may be contrasted with State v. Leblanc, 618 So.2d 949, 957 (LaApp. 1 Cir.1993), where the court found that the use of the same package of cocaine to prove possession of cocaine and 1 inattempted distribution of cocaine arising out of the same transaction constituted double jeopardy under the “same evidence” test. See also State v. Two- hig, 624 So.2d 16, 17 (La.App. 4 Cir. 1993).

As discussed above, the evidence was sufficient to show the defendant engaged in two distinct acts, and the evidence used to find the defendant guilty of each crime was distinct: the single rock of cocaine for the distribution charge and the bag of additional rocks of cocaine for the possession with intent to distribute charge. Therefore, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 4

Lastly, the defendant claims that the trial court committed reversible error when it denied the motion to suppress evidence because absent Officer Cahn’s claim that he saw the defendant stuff contraband down the back of her pants, there was no basis for the strip search of the defendant. On mixed questions of law and fact, the appellate court reviews the underlying facts on an abuse of discretion standard but reviews conclusions to be drawn from those facts de novo. State v. Hamilton, 2000-1176, p. 5-6 (La.App. 4 Cir. 9/13/00), 770 So.2d 413, 417-418. The trial judge, nevertheless, has broad discretion in assessing the credibility of witnesses. State v. Spotville, 99-719, p. 9 (La.App. 5 Cir. 12/21/99), 752 So.2d 244, 248-249, citing State v. Parkerson, 415 So.2d 187, 189 (La.1982).

The defendant argues that Officer Pittman, who did not testify at either the motion hearing or the trial, allegedly pursued the defendant, followed her into her apartment, detained her, arrested her, and patted her down for weapons. Officer Cahn’s claim is not worthy of belief, argues the defendant, as he was preoccupied with detaining Ms. Holbrook, and Officer Pittman would have been better able to testify as to the course of events regarding the arrest of the defendant and any basis for a strip search. A In search performed incident to lawful arrest has long been recognized as an exception to the warrant requirement. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). To validate a warrantless search under this exception, the State is required to affirmatively show that probable cause to arrest existed. State v. Buckley, 426 So.2d 103 (La.1983); State v. Zielman, 384 So.2d 359 (La.1980).

This Court recently held La. C.Cr.P. art. 213 authorizes a policeman to arrest a person who has committed an offense in his presence. State v. Daniel, 2001-1736, p. 3 (La.App. 4 Cir. 2/13/02), 811 So.2d 84, 87. The search of a defendant is legal if there is probable cause for his arrest, and probable cause exists when the facts and circumstances known to the officers and of which they have reasonably trustworthy information are sufficient to justify the belief by a man of ordinary caution that the suspect has committed or is committing a crime. Daniel, 2001-1736, p. 3, 811 So.2d 84, 87. Officer Cahn testified unwaveringly at the hearing on the motion to suppress and at the trial that, after he witnessed the defendant conduct what he believed to be a hand to hand drug transaction, he saw the defendant stuff something down the back of her pants. The officer further testified that based on his experience and training, he surmised that the defendant was secreting contraband. Officer Cahn had probable cause to arrest the defendant for distribution of cocaine after he observed what appeared to be a hand-to-hand drug transaction. The trial .court did not abuse its discretion in assessing the credibility of the witness. Thus, there is no merit to defendant’s argument that the trial court should have disregarded Officer Cahn’s observations.

I ^CONCLUSION

For the foregoing reasons, we find that there was sufficient evidence to convict the defendant on both charges. The defendant was not put in jeopardy when she was charged with distribution of cocaine and possession with intent to distribute cocaine. The prohibition against double jeopardy was not violated since the offenses did not arise out of the same events. The trial court did not err in denying defendant’s motion to suppress the evidence.

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

AFFIRMED.

      . The version of La. R.S. 40:967B(4)(b); 40:979 in effect at the time of the defendant's crimes required "a term of imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of said sentence being without benefit of parole, probation, or suspension of sentence.”


author: JjMAX N. TOBIAS, JR., Judge. | ARMSTRONG, J.,

text:
    STATE of Louisiana v. Verdell LANGE.
    No. 2002-KA-0477.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2002.

      Harry F. Connick, District Attorney of Orleans Parish, Scott Peebles, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge MAX N. TOBIAS, JR.).
   JjMAX N. TOBIAS, JR., Judge.

Verdell Lange, the defendant was charged with a violation of La. R.S. 40:967(c)(2), possession of crack cocaine. He entered a guilty plea under State v. Crosby, 338 So.2d 584 (La.1976) and was sentenced pursuant to La. R.S. 15:574.5, the About Face Program (Intensive incarceration and parole supervision of persons held by sheriffs in eligible parishes), to three years at hard labor in the Department of Corrections with the special conditions that the defendant obtain his GED and receive substance abuse counseling in the About Face Program. The district court indicated that it would reconsider the sentence on a motion filed by 17 December 2002 and that the court would “let Mr. Lange out” upon successful completion of the special conditions.

The defendant argues to this Court that officers did not have reasonable suspicion to stop him, and that consequently, the trial court erred in denying his motion to suppress evidence and statements when officers observed him showing another young man something in his hand as the two stood on the street.

¡¿STATEMENT OF FACTS

Officer William Ceravolo of the New Orleans Police Department testified at the hearing on the defendant’s motion to suppress evidence that at 6:40 p.m. on 5 September 2001, he and his partner were on patrol in a marked police car on Urquhart Street approaching Annette Street. The officers observed the defendant standing on the “downtown lake corner” of the intersection, showing a young man something that he held in his hand. When the defendant noticed the officers, he closed his hand, put the object in the left pocket of his pants, and started walking lake-bound on Annette, away from the officers. The officer testified that he thought they had interrupted a drug transaction and immediately stopped the two men in the 1300 block of Annette Street.

Officer Ceravolo patted down the defendant for weapons, based on his experience that weapons and narcotics are commonly located together, and he felt a large two-inch diameter object in the defendant’s left pants pocket, which he suspected was cocaine based on his experience and the feel of the object. The officer retrieved the object from the defendant’s pocket and determined that it was thirty-four rocks of cocaine wrapped in cellophane. The defendant made the following statement as the officer retrieved the object from his pocket: “That’s not for me, that’s for Corey. I’m just holding it for him.” The officer then placed the defendant under arrest for possession of cocaine.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

The defendant argues that officers did not have reasonable suspicion to stop him, and that consequently, the trial court erred in denying his motion to suppress evidence and statements, when officers observed him showing another young man something in his hand as the two stood on the street. The officers observed no money and could not actually identify what was in defendant’s hand as they observed the two men. The officer did not testify that there had been any reported complaints of drug activity or testify that the area was knoym for drug trafficking.

The State argues that under the totality of the circumstances, it was reasonable for the officers to suspect that the defendant possessed illegal narcotics and was about to engage in a drug transaction. The officers were patrolling in the evening, observed the defendant standing on a street corner showing another male something he was holding in his hand, and as the officers approached, the defendant and his companion exhibited furtive behavior and left the scene. Consequently, the State argues that the officers had reasonable suspicion to stop the men, and upon discovery of the cocaine in the defendant’s pocket, the officers had probable cause for their arrest.

A law enforcement officer may stop a person in a public place whom he reasonably believes is committing, has committed, or is about to commit an offense. La. C. Cr. P. art. 215.1. Reasonable suspicion for an investigatory stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient articu-lable facts to justify an infringement on the suspect’s rights. State v. Matthews, 94-2112 (LaApp. 4 Cir. 04/26/95), 654 So.2d 868. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy the search entails. State v. Carter, 99-0779, p. 6 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 274. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts were reasonable. State v. Hall, 99-2887, p. 4 (La.App. 4 Cir. 10/04/00), 775 So.2d 52, 57. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 2 (La.App. 4 Cir. 05/19/99), 737 So.2d 252, 254. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Devore, 2000-0201, p. 6 (La.App. 4 Cir. 12/31/00), 776 So.2d 597, 601-02.

We have made it clear that citizens, even those living in public housing projects, are free to walk away when they see police, even if they are seen, or suspected of, holding an object the police cannot identify. In State v. Hughes, 99-2554 (La.App. 4 Cir. 5/31/00), 765 So.2d 423, police officers stopped the defendant because they saw him put a white object into his pants pocket and hurriedly entered a grocery store when he observed them. There was no testimony that the area where the officers spotted Hughes was known for drug trafficking or testimony of any recent complaints of drug activity in the area. In addition, there was no evidence that Hughes was known to the officers, or that they had any information linking him to drug trafficking. The officer testified that “19 years of Ispolice experience” led him to believe that Hughes was engaged in drug activity. However, “a hunch or suspicion of illegal activity or transactions is insufficient to establish reasonable grounds to stop a person.” State v. Williams, 621 So.2d 199, 201 (La.App. 4 Cir.1993). Hence, we held that the totality of the circumstances did not justify stopping Hughes because the State failed to elicit adequate information from the arresting officer for a finding of reasonable suspicion to support the detention of Hughes. 99-2554 at p. 6, 765 So.2d at 427.

Similarly, in State v. Dappemont, 98-0446 (La.App. 4 Cir. 3/17/99), 734 So.2d 736, the defendant was standing in a courtyard of the St. Bernard Housing Project. When he saw the police officers, he walked away and placed his hands into his waistband area. The officers stopped him and ordered him to remove his hands. When he did so, the officers noticed a white piece of paper protruding from his zipper area. The officer conducted a pat-down search, and discovered a bulge where the paper was sticking out. He removed the bulge and found a red, white, and blue bag containing marijuana. This court affirmed the trial court’s ruling suppressing the evidence, noting that there was no testimony that the officer saw the defendant engaged in drug activity or that he saw the defendant attempt to conceal a suspicious object. Id. at pp. 12-13, 734 So.2d at 741-42.

In State v. Ellington, 96-0766 (La.App. 4 Cir. 9/4/96), 680 So.2d 174, this court affirmed a judgment granting a motion to suppress. In that case, the police officer testified that he saw the defendant standing in an area known for high drug activity, and, upon seeing the marked police car, the defendant put his hands in his pocket as if attempting to conceal something. Thinking that this activity was suspicious and that the defendant was trying to conceal something in his pocket, possibly drugs, the officer stopped the defendant and conducted a pat-down search. |fi A folding knife was found in the defendant’s right rear pants pocket. The officer then shined a flashlight into the same pocket and found a glass vile containing cocaine residue. This court found that these facts were not sufficient to justify the stop of the defendant, noting that the officer did not testify that he saw the defendant engaging in what appeared to be a drug transaction, or that he saw a suspicious object, which the defendant attempted to conceal. Id. at p. 3, 680 So.2d at 175-76. Further, we stated that even if the initial stop was justified, the subsequent pat-down frisk of the defendant was not because La.C.Cr.P. art. 215.1 only allowed a frisk of outer clothing for a dangerous weapon. Since the officer did not testify to any particular facts from which he could reasonably infer that the defendant was armed and dangerous, this court held that the pat-down frisk was not justified. Id. at p. 3, 680 So.2d at 176.

Likewise, in State v. Williams, 621 So.2d 199 (La.App. 4th Cir.1993), the defendant was seen standing in a courtyard of a housing project. When he saw the police officers, “he turned immediately and quickly walked away.” The officers also saw him “fooling with his belt area.” The trial court denied the defendant’s motion to suppress the pipe the officers seized after the defendant was stopped and frisked, but this court reversed the trial court’s ruling. We found that these facts did not justify the initial stop of the defendant, and even if the stop was legal, the officers provided no evidence to justify the subsequent pat-down frisk. Id. at 201.

Accordingly, we find that the stop of the defendant in the instant case was not justified. The State failed to elicit any information from Officer Ceravolo for a finding of reasonable suspicion to support the detention of the defendant. No testimony was presented that the area where the officers spotted Lange was known 17for drug trafficking or testimony of any recent complaints of drug activity in the area. In addition, no evidence was presented that Lange was known to the officers, or that they had any information linking him to drug trafficking. Finally, the officers observed no money and could not even see, much less identify, the object, if any, in defendant’s hand as they observed the two men. A hunch or suspicion is simply insufficient to establish reasonable grounds to stop a person.

Even if it were found that the evidence presented by the State justified the stop, the testimony does not establish that Officer Ceravolo had any particularized ground to frisk the defendant.

If a police officer stops a person whom he reasonably suspects is committing, has committed, or is about to commit a crime, pursuant to La.C.Cr.P. art. 215.1A, and reasonably suspects he is in danger, the officer may frisk the outer clothing of such person for a dangerous weapon; if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. La. C.Cr.P. art. 215.1B; State v. Curtis, 96-1408, pp. 2-3 (La.App. 4 Cir.10/2/96), 681 So.2d 1287, 1289. As noted by this court in State v. Denis, 96-0956 (La.App. 4 Cir. 3/19/97), 691 So.2d 1295:

While it is true that an officer is never justified in conducting a pat down for weapons unless the original detention itself was justified, a lawful detention for questioning does not necessarily give the officer the authority to conduct a pat down for weapons. Even after a lawful investigatory stop, a police officer is justified in frisking the subject only under circumstances where a “reasonably prudent man would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. Further, the officer’s belief is not reasonable unless the officer is “able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. [40] at 64, 88 S.Ct. [1889] at 1903, 20 L.Ed.2d [917] at 935 [1968]. It is not necessary that the investigating officer establish that it was more probable than not that the detained individual was armed and dangerous; it is sufficient that he establish a “substantial possibility” of danger. State v. Hunter, 375 So.2d 99, 101-102 (La.1979) (final citation omitted).

In this case, there was no evidence presented at the hearing on the motion to suppress concerning whether Officer Cera-volo reasonably believed the defendant was armed. Officer Ceravolo testified: “I stopped Mr. Lange. I advised him to place his hands on the car. I then conducted a pat down for weapons based on the fact that I just believed I interrupted a drug transaction and the fact that weapons and narcotics are commonly located together.” Despite this explanation, Officer Ceravolo did not allude to any circumstances, which would have led him to believe he was in danger or that the defendant was armed. State v. Denis, supra, requires that the officer not only articulate his suspicion, but also explain its basis. Considering the lack of any evidence to justify a reasonable suspicion by Officer Ceravolo that the defendant either posed a danger to him or others, or was armed, the officer was not justified in frisking Lange. Because the officer did not have a reasonable basis to suspect a drug transaction, he cannot rely on an unreasonable stop to justify the pat-down.

CONCLUSION

We find that the trial court erred in denying the defendant’s motion to suppress. Therefore, the defendant’s conviction and sentence are reversed.

REVERSED.

ARMSTRONG, J., DISSENTS.

| ARMSTRONG, J.,

dissents.

I respectfully dissent from the majority opinion and would affirm the judgment' of the trial court.


author: JACHARLES R. JONES, Judge. LBYRNES, C.J., JjMURRAY, J.,

text:
    Frances GLASS v. ALTON OCHSNER MEDICAL FOUNDATION (Ochsner Foundation Hospital) Ochsner Clinic, L.L.C. and Warren R. Summer, M.D.
    No. 2002-CA-0412.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 6, 2002.

      Clarence F. Favret, III, Favret, Demar-est, Russo & Lutkewitte, New Orleans, LA, for Frances Glass.
    Charles F. Gay, Jr., C. Byron Berry, Jr., Adams and Reese, LLP, New Orleans, LA, for Alton Ochsner Medical Foundation and Ochsner Clinic, L.L.C.
    Richard P. Ieyoub, Attorney General, Jude D. Bourque, Assistant Attorney General, Baton Rouge, LA, for Warren R. Summer, M.D.
    (Court composed of Chief Judge WILLIAM H. BYRNES ill, Judge CHARLES R. JONES, and Judge PATRICIA RIVET MURRAY).
   JACHARLES R. JONES, Judge.

The plaintiff/appellant, Frances Glass, appeals the judgment of the Civil District Court for the Parish of Orleans granting an Exception of Lis Pendens in favor of the Defendant/Appellees, Alton Ochsner Medical Foundation, Ochsner Clinic, L.L.C. (hereinafter collectively “Ochsner”) and Warren R. Summer, M.D. Following a review of the record, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 1, 1997, Wayne Hicks, the son .of Ms. Glass, nearly drowned at The Magnolia School, Inc. located in Harahan, Louisiana. As a result of the accident, Wayne was admitted to Ochsner for treatment, From August 1st to August 5th of 1997, Dr. Summer treated Wayne at Ochs-ner. During Wayne’s hospital stay, he developed pneumothorax, ARDS, pneumonia, tension pneumothorax, and various other complications. Dr. Summer later ordered Wayne’s extubation and the ^removal of a ventilator. Eventually, Wayne died as a result of his deteriorating condition.

Ms. Glass filed a survival and wrongful death action (hereinafter the “original petition”) in the Jefferson Parish Twenty-fourth Judicial District Court against The Magnolia School, Inc., and against Nicole Weber and Brenda Walker — who are employees of the Magnolia School — for the near drowning and ultimate death of Wayne. In the original petition, The Magnolia School, Inc, Nicole Weber and Brenda Walker (hereinafter collectively the “Magnolia School defendants”) filed a Third Party Demand against Ochsner and Dr. Summer for contribution and/or indemnity in the event that they were held liable.

After trial on the merits, the district court found that the Magnolia School defendants were not negligent. Ms. Glass appealed the decision to the Fifth Circuit Court of Appeal, where she prevailed. The Fifth Circuit reversed the district court, found liability and awarded damages. The Magnolia School defendants filed a Writ of Certiorari to the Supreme Court. The Supreme Court has not yet rendered a decision in that case.

Subsequent to the filing of the original petition, two separate medical review panels were empanelled for a determination as to the medical malpractice of Dr. Summer and Ochsner. However, the findings of the panels are unknown to this Court.

On June 18, 2001, Ms. Glass filed the instant suit in the Civil District Court for the Parish of Orleans, against Ochsner and Dr. Summer. Ms. Glass contended that Wayne’s complications and resulting death were caused by the medical malpractice of Ochsner and Dr. Summer. In response to Ms. Glass’s petition, both Ochsner and Dr. Summer respectively filed an Exception of Lis Pendens and ROchsner filed an additional Exception of Prematurity. They contended the Exception of Lis Pendens should have been granted because the original petition was already in progress against them in Jefferson Parish, and both suits involved the same transaction or occurrence, and are between the same parties in the same capacities under La.C.C.P. art. 531. The district court granted the exceptions filed by Dr. Summer and Ochs-ner, on September 12, 2001 and September 14, 2001 respectively, and dismissed the suit filed by Ms. Glass as to Dr. Summer and Ochsner.

On June 19, 2001, Ms. Glass filed another suit against Ochsner and Dr. Summer (hereinafter the “third suit”) in the Twenty-fourth Judicial District Court in Jefferson Parish for medical malpractice. The third suit is currently pending as well, and curiously, had not been met with an exception at the time of submission in this court.

In the instant suit, Ms. Glass appeals the judgment of the district court granting the Exceptions of Lis Pendens.

STANDARD OF REVIEW

The standard of review of appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). Furthermore, if the decision of the district court is based on an erroneous application of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983).

ULIS PENDENS

La. C.C.P. art. 531 states:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

Additionally, the test for deciding whether an Exception of Lis Pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently filed suit. Domingue v. ABC Corporation, 96-1224, p. 3 (La.App. 4 Cir.1996), 682 So.2d 246, 248, writ denied, 96-1947 (La.11/1/96), 681 So.2d 1268, citing, Fincher v. Ins. Corp. of America, 521 So.2d 488 (La.App. 4 Cir. 1988), writ denied 522 So.2d 570 (La.1988). The Exception of Lis Pendens has the same requirements as the Exception of Res Judicata, and is properly granted when the suits involve the same transaction or occurrence between the same parties in the same capacities. Id. at 248.

The first requirement for granting an Exception of Lis Pendens is that there are two or more suits pending. A suit is considered pending for Lis Pendens purposes if it is being reviewed by an appellate court. Board of Trustees of Sheriff’s Pension and Relief Fund v. City of New Orleans, 2001-0497, p. 2, (La.App. 4 Cir. 3/13/02), 813 So.2d 543, citing, Maddens Cable Service, Inc. v. Gator Wireline Services, Ltd., 509 So.2d 21, 23 (La.App. 1st Cir.1987); Daul Insurance Agency, Inc. v. Parish of Jefferson, 447 So.2d 1208, 1210 (La.App. 5th Cir.1984); Scott v. Ware, 160 So.2d 237 (La.App. 2nd Cir. 1964).

|sThe suit subject to this appeal was filed in the Civil District Court for the Parish of Orleans on June 18, 2001. Ochsner contends that when Ms. Glass filed this suit the original petition was pending because she did not receive a ruling on her appeal from the Fifth Circuit until March 13, 2002. Ms. Glass does not deny that the original petition was pending at the time she filed the instant suit and she does not deny that she presently has two cases pending in Jefferson Parish. Both parties agree that no final judgment has been entered in the original petition.

There are three cases pending: the original petition, the instant suit and the third suit. The original petition is pending before the Supreme Court and the third suit is pending oral arguments in Jefferson Parish. Thus, the requirement that two or more cases are pending has been met.

As for the second requirement, Ms. Glass avers that both proceedings involve the same transaction or occurrence. Ms. Glass asserts that she is pursuing a negligent cause of action against the Magnolia School defendants for their negligent supervision and monitoring of Wayne while he swam in the school’s pool on August 1, 1997. However, her case against Ochsner and Dr. Summer is based upon a medical malpractice claim for the treatment that Wayne received while under the care of Ochsner from August 1, 1997 to his death on August 5, 1997. Ms. Glass argues that these are separate and different occurrences.

Ochsner’s response to these assertions is that Ms. Glass has misinterpreted La. C.C.P. art. 531, and is relying on the pre-1991 amendment of said statute. Ochsner argues that La. C.C.P. art. 531 no longer requires that the pending suits share the same cause of action. Ochsner argues under Domingue, supra, that the Exception of Lis Pendens has the same requirements as the Exception of Res Judicata, and is properly granted when the suits involve the same transaction or |fioccurrence between the same parties in the same capacities. Domingue at 248. We agree.

The original petition, the instant suit and the third suit all involve the same transaction or occurrence: Wayne Hick’s death. The original petition is based on the negligent supervision that led to Wayne Hicks’s death while the instant suit is based on the negligence of Ochsner and Dr. Summer in their medical treatment of Wayne Hicks, which allegedly led to his death. The third suit is also against Ochs-ner and Dr. Summer for medical malpractice. Although Ms. Glass promulgates various theories of liability, she is bringing survival actions and wrongful death claims in all three cases.

Furthermore, the application of the holding in Weber v. Charity Hospital of Louisiana, 475 So.2d 1047 (La.1985), also contributes to the understanding that this case involves the same transaction or occurrence. The Supreme Court in Weber rationalized that “a tortfeasor may be liable not only for the injuries he directly causes to the tort victim, but also for the tort victim’s additional suffering caused by inappropriate treatment by the doctor, nurse or hospital staff member who treats the injuries directly caused by the tortfea-sor.” Id. at 1050 citing Berger v. Fireman’s Fund Insurance Co., 305 So.2d 724 (La.App. 4th Cir.1974); Hillebrandt v. Holsum Bakeries, Inc., 267 So.2d 608 (La. App. 4th Cir.1972); Hudgens v. Mayeaux, 143 So.2d 606 (La.App. 3rd Cir.1962); Restatement (Second) of Torts § 157 (1965).

The Supreme Court additionally recognized in Lambert v. United States Fidelity and Guaranty Company, 629 So.2d 328, 329 (La.1993), that the solidary liability binding the original tortfeasor and the subsequently treating health care ^providers in Weber granted the tortfeasor the right to seek contribution from the health care provider.

The Weber and Lambert decisions hold tortfeasors liable for two types of harms: 1.) the harm they directly caused and 2.) the subsequent harm created by a health care provider(s) for which the tortfeasors are the but for cause. Holding tortfeasors accountable for resulting harms that they are not directly responsible for combines the original tort with the medical harm that followed into one occurrence for liability purposes. Therefore, the resulting harms suffered by plaintiffs must arise out of the same transaction or occurrence in order for this Court to hold health care provider defendants solidarity liable with the initial tortfeasor.

The second requirement. has been met for all three of the cases involving the death of Wayne Hicks. Moreover, Supreme Court case law construes these cases as arising out of the same transaction or occurrence for liability purposes.

The final requirement for obtaining an Exception of Lis Pendens is proving that both or all cases are between the same parties in the same capacities. Although Ms. Glass admits that she is the plaintiff in both the original petition and the instant suit, she argues that there are two distinct groups of principal defendants: 1) Magnolia School defendants in the original petition, and 2) Ochsner and Dr. Summer in the present suit. She challenges the district court’s finding that the same parties requirement was met because the claim filed against Ochsner and Dr. Summer in the original petition was a Third Party Demand filed by the Magnolia School defendants — not by her.

Ms. Glass also asserts that the holding in Domingue should be applied to this case to resolve the Third Party Demand issue because the issues are analogous. Ms. Glass maintains that the Court in Do-mingue found that defendants who are third hparty defendants in the -first suit cannot successfully assert an Exception of Lis Pendens because a judgment in the first suit would not have a res judicata effect on the plaintiffs claims against them in the second suit.

Yet, this Court finds that Domingue is not applicable to the instant suit with respect to the issue of the Magnolia School defendants’ Third Party Demand. The holding in Domingue was limited to the factual circumstances of that case. In Do-mingue, we denied the defendants’ Exception of Lis Pendens because of the involvement of several defendants in harming the plaintiff over a twenty-year period. In that case, a finding of liability as to one defendant would have left the issue of the other defendants’ liability unresolved. Domingue, 682 So.2d at 248.

Conversely, Ochsner argues that the identity of parties requirement is met whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties, citing Welch v. Crown Zellerbach Corporation, 359 So.2d 154, 156 (La.1978). Ochsner posits that the Magnolia School defendants share the plaintiff status of Ms. Glass by virtue of their contribution claim against Ochsner and Dr. Summer.

Ochsner argues that the principal defendants in the original petition share plaintiff status with Ms. Glass because those defendants are subrogated to the rights of Ms. Glass by virtue of their contribution claim against Ochsner and Dr. Summer. Louisiana Civil Code Articles 1804 and 1805 define the right of contribution. Article 1804 states that “a solidary obligor who has rendered the whole performance, though subrogated to the right of the obligee, may claim from the other obligors no more than the virile portion of each.” Article 1805 further expounds that:

IgA party sued on an obligation that would be solidary if it exists may seek to enforce contribution against any solidary co-obligor by making him a third party defendant according to the rules of procedure, whether or not that third party has been initially sued, and whether the party seeking to enforce contribution admits or denies liability on the obligation alleged by plaintiff.

The fact that the origin of the right of contribution lies in the principle of subro-gation does not demonstrate that the Magnolia School defendants share the same quality of party as Ms. Glass. Moreover, it is the very existence of the Magnolia School defendants’ right to seek contribution that distinguishes their status from that of Ms. Glass. The Magnolia School defendants’ right to pursue a contribution claim against Ochsner and Dr. Summer through La. C.C. articles 1804 and 1805 automatically gives them greater rights than Ms. Glass possesses.

Under La. R.S. 40:1299.47(B), Ms. Glass was legally precluded from simultaneously suing Ochsner and Dr. Summer while suing the Magnolia School defendants because medical review panels had not yet been impaneled to evaluate their actions. Ms. Glass had to wait until findings were made before filing her original petition.

However, neither the LambeH holding nor La. C.C. articles 1804 and 1805 require alleged tortfeasors to wait for the empaneling or decision making of medical review panels before filing their Third Party Demands. The Supreme Court in Lambert, for instance, did not create requirements for tortfeasors to fulfill in order to file their Third Party Demand. The nonexistence of this requirement allows tortfeasors to proceed against health care providers where the original plaintiffs are precluded. The Magnolia School defendants, for example, were able | into file their Third Party Demand against Ochs-ner and Dr. Summer without having to wait for the empaneling of the medical review panels.

A basic tenet of subrogation is that the subrogee has no greater rights than the subrogor. Perkins v. Scaffolding Rental and Erection Service, Inc., 568 So.2d 549, 552 (La.1990), citing, Bosch v. Cummings, 520 So.2d 721 (La.1988); Theriot v. Bergeron, 552 So.2d 1 (La.App. 1st Cir.1989); La. Civ.Code 1825, 1826; Complaint of Admiral Towing and Barge Co., 767 F.2d 243 (5th Cir.1985). Nevertheless, in circumstances where the Lambert holding and La. C.C. articles 1804 and 1805 are applicable, a tortfeasor’s right to bind health care providers to litigation before the original plaintiff can do so endows him or her with a greater privilege than the plaintiff possesses. Thus, the Magnolia School defendants are not plaintiffs in the same capacity as Ms. Glass in the original petition.

Additionally, the fact that Ms. Glass and the Magnolia School defendants are not the same quality of parties was further evidenced by the Twenty-fourth Judicial District Court’s granting of the Magnolia School defendants’ Third Party Demand. Ochsner and Dr. Summer — in response to the demand — filed no Motion of Prematurity. Had Ochsner and Dr. Summer perceived the Magnolia School defendants to be plaintiffs possessing the same qualities as Ms. Glass, they would have filed a Motion of Prematurity against the original defendants as Ochsner did against Ms. Glass in the instant suit. Clearly, Dr. Summer and Ochsner did not interpret Ms. Glass and the third party plaintiffs, the Magnolia School defendants, to be of the same capacity from the onset of this suit.

In an effort to refute that the same quality of parties prong was satisfied, Ms. Glass further argues that Dr. Summer particularly should not have been granted an Exception of Lis Pendens because he was never served with the Third Party lT1Demand in the original petition. She asserts that ninety days elapsed and no service was requested or effected on Dr. Summer. Ms. Glass cites Bellard v. Lake Charles Memorial Hospital, 2000-1599 (La.App. 3 Cir. 4/4/01), 787 So.2d 1017, which held that where service of process was never affected by the plaintiffs on the defendants in the first suit, then that proceeding becomes an absolute nullity. According to Ms. Glass, Dr. Summer was never a party to the original petition; therefore, he cannot raise an Exception of Lis Pendens because he is not a party to a pending lawsuit.

Responding to the arguments of Ms. Glass, Dr. Summer avers that Ms. Glass’ contention that there is no prior suit pending is without merit. Dr. Summer posits that there is no dispute that the original petition is continuing and that the third party defendants may be brought into that suit at any time. He asserts that he has attended all the pre-trials and all of the hearings in the original petition. Dr. Summer further contends that Bellard concerns a unique fact pattern where none of the defendants were served and the first suit was dismissed as to all parties. He asserts that Bellard is not applicable to the instant suit. We agree.

Bellard is inapplicable to the instant suit. The Bellard case does not address what procedure should be followed when a co-defendant or a third party defendant is not served with service of process. Furthermore, in Bellard, the first suit was declared a nullity as to all parties not just one party. Thus, this Court declines to apply Bellard in this instance. Despite the fact that Bellard is not applicable, Dr. Summer does not state whether he was properly served with the Third Party Demand. His assertion that the original petition is pending and that the third party defendants may be called into that suit at anytime does not resolve the issue of whether he was served with process in the original petition.

I! ¡With regard to service of process, La. C.C.P. art. 6(A) states:

A.Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. The exercise of this jurisdiction requires:
(1) The service of process on the defendant, or on his agent for the service of process, or the express waiver of citation and service under Article 1201.
(2)The service of process on the attorney at law appointed by the court to defend an action or proceeding brought against an absent or incompetent defendant who is domiciled in this state.
(3)The submission of the party to the jurisdiction of the court by commencing an action or by the waiver of objection to the jurisdiction by failure to timely file the declinatory exception.

La.C.C.P. art. 1201 further states:

A. Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null.
B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
C.Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.

In addition to submitting to a court’s jurisdiction by submitting a written waiver, a party can also waive an objection to the jurisdiction by. an appearance of record. Poret v. Billy Ray Bedsole Timber Contractor, Inc., 31,531, p. 2 (La.App. 2 Cir. 1/22/99), 729 So.2d 632. An appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. Id,., citing, La. C.C.P. art. 1671, Official Comment. Furthermore, under La. C.C.P. art. 6(3), supra., a court’s power and authority to render a personal judgment against a party to an action or proceeding must be based upon a party’s: 1) submission to the exercise of personal jurisdiction by the court, or 2) waiver of the right to object to jurisdiction by failing to timely file the declinatory exception. Pursuant to La. C.C.P. art. 2593, all exceptions are to be filed prior to trial. International Matex Tank Terminals v. System Fuels, Inc., 398 So.2d 1029, 1031 (La.1981).

Although neither Dr. Summer’s brief nor the record indicates whether he was served with process of the original petition within ninety days, Dr. Summer has conceded to the jurisdiction of the Twenty-fourth Judicial District under either prong of La. C.C.P. art. 6(3). He submitted himself to the Court’s jurisdiction by making appearances of record at the original petition hearings. Moreover, Dr. Summer waived his right to object to the Twenty-Fourth Judicial District Court’s exercise of personal jurisdiction over him by not filing a Declinatory Exception of Lack of Personal Jurisdiction before trial commenced on the original petition. Thus, Dr. Summer is a party to the original petition, but he is not the same quality of party as the Magnolia School defendants because he is a third party defendant whose liability for the death of Wayne Hicks rests upon the Magnolia School defendants being first found liable.

Dr. Summer and Ochsner’s final argument is that they will fall prey to double indemnity if the Exception of Lis Pendens is denied and if the Supreme Court denies the writ application in the original petition. Yet, the case law supports the protection of Ochsner and Dr. Summer from double indemnity should they be held liable by the Supreme Court.

luShould Ms. Glass win on appeal in her original suit, she will be made totally whole for her damages. The holdings of Weber and Lambert support this analysis, for they grant plaintiffs the right to recover the total amount of damages incurred from the tortfeasor because all of the alleged negligent acts are construed as arising out of the same transaction or occurrence. Ms. Glass would subsequently be barred from recovering additional damages from Ochsner and Dr. Summer once she has been made whole in any Louisiana court. However, granting an Exception of Lis Pendens without weighing all possible factors would greatly harm Ms. Glass and prohibit her from pursuing a viable claim against Dr. Summer and Ochsner in the event the issue of their liability is not addressed by the Supreme Court.

DECREE

For the foregoing reasons, we reverse the judgment of the district court granting the Exceptions of Lis Pendens filed by Alton Ochsner Medical Foundation, Ochs-ner Clinic L.L.C., and Warren R. Summer, M.D., and hereby remand this matter for a hearing consistent with this opinion.

REVERSED AND REMANDED.

BYRNES, C.J., CONCURS.

MURRAY, J., CONCURS WITH REASONS.

LBYRNES, C.J.,

CONCURS.

I agree with the result reached by the majority. I merely wish to reference the impressive scholarly analysis found in Hy-Octane Investments v. G & B Oil Prod., 97-28 (La.App. 3 Cir. 10/29/97), 702 So.2d 1057, which is worth quoting at some length:

The doctrine of res judicata was substantially changed by La. Acts 1990, No. 521, effective January 1, 1991. Several code articles were amended in order to effectuate this change. Article 1061 was one of the articles that was amended. The purpose of the change in the doctrine of res judicata was to require the plaintiff “to seek all relief and to assert all rights which arise out of the same transaction or occurrence.” Comment (a) to La.R.S. 13:4231. This serves the purpose of judicial economy and fairness. The focus is on the transaction or occurrence as opposed to a cause of action. See Comment (a) to La.R.S. 13:4231.
In furtherance of this objective, judicial efficiency is also served “by requiring the defendant through a compulsory re-conventional demand to assert all causes of action he may have against the plaintiff that arise out of the transaction or occurrence that is the basis for the plaintiffs action.” Comment (a) to Article 1061.
There are no Louisiana cases that discuss the issue of whether two claims that arise out of the same contractual agreement arise out of the same transaction or occurrence.
| ¿The term “transaction or occurrence” is used in seven articles of the Code of Civil Procedure. In addition to its use in Article 1061, it is found in Article 425, which deals with preclusion by judgment; it is used in Articles 531 and 532, both dealing with lis pendens; in Article 891, the term enumerates one of the required formalities of a petition; in Article 1071 it defines the parameters of a cross-claim; and in Article 4845, the term helps define the jurisdictional limits of city and parish courts. Another provision, Article 1153, uses the slightly different expression “conduct, transaction, or occurrence” as part of the formula for when an amendment to a pleading relates back for prescription purposes.
Although none of these articles specifically define the expression “transaction or occurrence,” they variously equate the term with “the subject matter of the litigation” (Articles 425 & 891), “the subject matter of the principal action” or “principal demand” (Article 1061 & 4845), and “the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action” (Article 1071). What the transaction or occurrence is that is the subject matter of the litigation, or the principal demand or action, or the original action, has been determined on a case-by-case basis, according to the annotations under these articles.
Some definitions are available, however. Black’s Law Dictionary defines “transaction” as, inter alia, “a broader term than ‘contract,’ “ and “a group of facts so connected together as to be referred to by a single legal name; as a crime, a contract, a wrong.” Among the definitions of “transaction or occurrence” found in 42 Words and Phrases, Supp. p. 201 (1997), is “whether pertinent facts of different claims are so logically related that issues of judicial economy and fairness mandate that all issues be tried in one suit.” The federal courts have given the words “transaction or occurrence” a broad and liberal interpretation in order to avoid a multiplicity of suits. All logically related events entitling a person to institute legal action against another generally are regarded as comprising a “transaction or occurrence.” Lasa Per L'Industria Del Marmo Soc. Per Azioni v. Alexander, 414 F.2d 143 (6th Cir. 1969).
Also, the federal courts have discussed the very issue before us in connection with Fed.Rule Civ.P. 13(a). |3 Rule 13(a) concerns a compulsory counterclaim that must be asserted “if it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.... ” When an article of the Louisiana Code of Civil Procedure is based on a federal rule, decisions of the federal courts can be used for guidance. Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986).
In Centennial School Dist. v. Independence Blue Cross, 885 F.Supp. 683 (E.D.Pa.1994), the court held that counterclaims asserted by a health insurer and others against a school district and others for defamation and tortious interference with contractual and business relationships arose out of the “transaction or occurrence” that was the subject matter of the school district’s action under antitrust and state law. In that case it was found that all claims related to the contract between the parties and to comments allegedly made regarding termination of the contractual relationship. In U.S. v. Hampton Tree Farms, Inc., 860 F.Supp. 741 (D.Or.1994), the court held that the government’s claims for damages for timber buyers’ default were compulsory counterclaims in the buyers’ action for wrongful termination of contracts and for extensions of automatic termination dates where the contracting officers had issued final default decisions during the pendency of the buyers’ action.
In the present case Hy-Octane’s claim for breach of the motor fuel supply agreement arises out of the same contract that G & B asserts was wrongfully terminated by Hy-Octane and its successor, Venture Energy. This clearly involves the same transaction or occurrence, the contract, that is the subject matter of G & B’s suit. As such, Hy-Octane must assert its claim by a recon-ventional demand to G & B’s suit in Rapides Parish. Judicial efficiency is thereby served.
Hy-Octane also argues that the action is not between “the same parties” since Venture Energy is a defendant in the Rapides Parish action but not involved in the Lafayette Parish action. However, Hy-Octane’s argument is misplaced in the present case. La.Code Civ.P. art. 531, dealing with lis pendens, is the article which requires that the suits be between the same parties in the same capacities. This is so because “[w]hen two or more suits are pending in a Louisiana court or courts on the |4same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed. ...” Article 531. It makes no difference for a compulsory reconven-tional demand by a defendant if there are additional parties involved. A defendant must assert a reconventional demand if it arises out of the transaction or occurrence of the principal demand by the plaintiff. [Emphasis added.]

Thus, Hy-Octane Investments demonstrates that while LSA-R.S. 13:4231 (res judicata) and LSA-C.C.P. art. 1061 (compulsory counterclaims) require a party to assert certain claims arising out of the same transaction or occurrence ' or lose them, there is no analogous requirement in LSA-C.C.P art. 531 (Us pendens) requiring the plaintiff to assert in one suit all claims arising out of the same occurrence or transaction against other parties in all capacities. It would unquestionably serve the interests of fairness and judicial economy in the instant case were the plaintiff required, if procedurally possible, to assert her claims against Ochsner and Dr. Summer in the original Jefferson Parish suit, but nothing in LSA-C.C.P. art. 531 requires her to do so. Therefore, until the legislature or the Supreme Court acts to broaden the scope of LSA-C.C.P. art. 531, I must resign myself to a procedure that through clever advocacy could conceivably result in the possibility of the plaintiff in the instant litigation having multiple bites at the same apple. Moreover, in a case involving res judicata which, as pointed out correctly by the majority, has basically the same requirements as lis pendens, this Court made the point that the principle of judicial economy is not always of paramount importance. Fine v. Regional Transit Authority, 95-2603 (La.App. 4 Cir. 6/26/96), 676 So.2d 1134,1137. Of even greater relevance to the instant case is Steptoe v. Lallie Kemp Hosp., 93-1359 (La.3/21/94), 634 So.2d 331, where the Supreme Court held that res judicata did not apply under procedural facts very similar to Isthose ■ of the instant case: The initial suit was for negligent operation of a vehicle and the second suit was for medical malpractice arising during the course of the automobile tort victim’s treatment.

For the foregoing reasons, I respectfully concur.

JjMURRAY, J.,

CONCURS WITH REASONS.

I concur in the reversal of the trial court’s rulings and in the remand, but for different reasons than those expressed in the majority opinion. The “pending” action that was the basis for the trial court’s maintenance of the exceptions of lis pen-dens is the third party demand asserted by the Magnolia School against Dr. Summer and Ocshner in the suit plaintiff, Ms. Glass, filed in Jefferson Parish against the Magnolia School and several of its employees prior to her filing of the instant suit. However, the trial court’s granting of the exceptions is now moot because, contrary to the facts recited in the majority opinion, the Jefferson Parish action is no longer pending, but has proceeded to final judgment, apparently without the third party demand having been judicially resolved.

The pertinent facts, as ascertained from the record in the instant case, as well as from the published opinions of the Fifth Circuit and the Louisiana Supreme Court in the Jefferson Parish case, are as follows. The Jefferson Parish action was tried to a jury in June of 2001, which found no negligence on the part of any of the defendants. Glass v. Magnolia School, Inc., 01-1209, p. 2 (La.App. 5 Cir. 3/13/02), 815 So.2d 143, 146. After the trial court denied her motion for judgment notwithstanding the verdict, Ms. Glass appealed to the Fifth Circuit. Id. 12 On March 13, 2002, the Fifth Circuit reversed the trial court, found liability on the part of the Magnolia School, and awarded damages to the plaintiff. Most pertinent to our inquiry, however, is that the Fifth Circuit opinion does not mention the existence of a third party demand by the Magnolia School against the defendants herein. Moreover, the Fifth Circuit does not remand the case for trial of the third party demand; the decree is “Reversed and Rendered.” Id. at p. 19, 815 So.2d at 156. The Magnolia School applied for writs to the Supreme Court from this decision of the Fifth Circuit, and on June 7, 2002, the Court denied writs, thus concluding the Jefferson Parish action. See Glass v. The Magnolia School, Inc., 02-1048 (La.6/7/02), 818 So.2d 776.

From the record we have, it is impossible to determine whether the third party demand still existed in the Jefferson Parish lawsuit at the time that suit was tried in June, 2001, or at the time the Orleans Parish Civil District Court granted the exceptions of Us pendens in the instant case in September, 2001. The four-page transcript from the September 7, 2001, hearing on the exceptions merely reflects that counsel for Dr. Summer told the trial judge:

We were forced by the judge and by plaintiff attorney to go to all the pretrials, everything. We’ve gone to all the hearings. We’re over there. Whether we’re third party defendants, whether we’re direct defendants, it’s just a red herring. We are the parties in that suit. It is over there, [sic]

Regardless of the status of the third party demand at the time the exceptions in the instant case were heard, it apparently was not part of the Jefferson Parish action at the time of the appeal to the Fifth Circuit, which neither addressed the issue, nor remanded the case for resolution of that issue. Absent such a remand, the Supreme Court’s denial of writs ended the Jefferson Parish case. Without a pending case in Jefferson Parish, the exceptions of lis pendens are moot. For this reason alone, without expressing an opinion as to the merits of the exceptions during the ^pendency of the third party demand, I would vacate the trial court’s judgment. Accordingly, I concur in the reversal and remand.