author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Wendell V. GRAY.
    No. 06-KA-298.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Andrea F. Long — Appellate Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, State of Louisiana.

      Prentice L. White, Louisiana Appellate Project, Baton Rouge, Louisiana, for Appellant, Wendell V. Gray.
    Wendell V. Gray, pro se.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|2On April 29, 2003, the Jefferson Parish District Attorney filed a bill of information charging defendant, Wendell V. Gray, with possession with intent to distribute cocaine in violation of La. R.S. 40:967 A. Defendant was arraigned on April 30, 2003 and pled not guilty. On July 9, 2003, defendant’s motions to suppress evidence and statement were heard and denied.

On August 11, 2003, defendant’s trial began. The following day, the twelve-member jury found defendant guilty as charged. On October 20, 2003, the trial court sentenced defendant to imprisonment at hard labor for 15 years, with two years without benefit of parole, probation, or suspension of sentence.

On July 6, 2004, the State filed a bill of information alleging that defendant was a third felony offender. On August 18, 2004, defendant denied the allegations of the multiple bill. On January 5, 2005, however, defendant stipulated to the allegations of the multiple bill. On that same date, the trial court vacated | ¡¡defendant’s sentence on the underlying felony conviction and sentenced defendant to imprisonment at hard labor for thirty years without benefit of probation or suspension of sentence, pursuant to La. R.S. 15:529.1.

Facts

At trial, Deputy A.J. Thibodeaux of the Jefferson Parish Sheriffs Office (“JPSO”) testified that, on April 9, 2003, at approximately 11:00 p.m., he and his partner, Deputy Rene Lacombe, were patrolling near Senate and Delegate Streets in Avon-dale, Louisiana when they observed a white Mercury Grand Marquis coming toward them in the left lane traveling backwards. The officers stopped the vehicle to investigate.

After the vehicle stopped, Deputy La-combe went to the driver’s side of the vehicle to ask the driver for his driver’s license, registration, and insurance information. At that same time, Deputy Thibo-deaux approached the passenger’s side of the vehicle and scanned the inside of the vehicle through the partially open window with his flashlight looking for weapons or contraband. Deputy Thibodeaux immediately observed a clear plastic bag, which he believed contained contraband, in a cup-holder on the center console of the floorboard.

Deputy Thibodeaux then told his partner that he believed they had discovered a “967” and told Deputy Lacombe to ask the driver, later identified as defendant, to step out of the vehicle. Deputy Lacombe testified that, after he escorted defendant to the rear of the vehicle and instructed defendant to place his hands on the trunk, Lacombe patted defendant down for weapons, handcuffed defendant, and advised him of his constitutional rights.

After defendant exited, Deputy Thibo-deaux went around to the driver’s side of the vehicle, reached in, and retrieved the clear plastic bag containing, what appeared to him to be, crack cocaine. Deputy La-combe testified that, once Deputy 1 /.Thibodeaux retrieved the clear plastic bag from the vehicle, defendant stated to Deputy Lacombe, “[tjhose are mine, one’s for me and the rest are for me to sell.”

Deputy Lacombe further testified that defendant did not try to explain that his car was not running properly. He added that no bystanders came by the scene that night.

Andrea Travis, who was stipulated to be an expert in the field of the testing and analysis of controlled dangerous substances, testified at trial that the substance in question tested positive for cocaine. Her report reflects that the evidence consisted of “one clear plastic bag containing four off white rock objects and one clear plastic bag inside another clear plastic bag containing nine off white rock objects one being individually wrapped in clear plastic.” The report further shows that the material had a gross weight of 5.79 grams.

JPSO Sergeant Joe Williams, who was stipulated to be an expert in the field of the use, packaging, and sale of controlled dangerous substances, testified at trial that, in his opinion, the thirteen rocks of crack cocaine recovered in this case were not solely for personal use but were intended to be sold. Sergeant Williams based his opinion on the fact that thirteen rocks is a large amount of crack cocaine, which would take an average user about two weeks to use. Further, a number of the rocks were separately packaged in small, clear plastic bags, which would indicate that they were ready for sale. In Sergeant Williams’ estimation, the street value of the seized contraband was approximately $20.00 to $40.00 per rock.

After the State rested its case, defendant called Ryan Marshall as a witness at trial. Marshall testified that defendant was his ex-brother-in-law, and that they were good friends. He explained that a couple of weeks prior to April 9, 2003, defendant purchased a white car for $400.00. Because the car was not running properly, defendant had it towed to Marshall’s house so Marshall could repair it. | ¡¡Marshall stated that the car was in his possession for a week or two prior to April 9, 2003 and that defendant had not been around the car during that time.

According to Marshall, on April 9, 2003, he picked defendant and defendant’s children up at his sister’s house and brought them to his house where defendant cut several individuals’ hair. At approximately 6:30 or 7:00 p.m., after defendant finished the haircuts, Marshall and defendant worked on defendant’s car. Defendant subsequently took the car out for a test drive while Marshall ran some errands. Marshall testified that, at approximately 10:30 or 11:00 p.m., as he was returning home, he saw defendant in his car at Senate and Delegate Streets and noticed that the car “jerked” and the rear lights came on.

Marshall explained that a police car then approached defendant’s car, and that two officers exited the car. Marshall testified that one officer was looking into the car with his flashlight. Marshall asked the other officer, later identified as Deputy Lacombe, if they were going to take defendant to jail. Marshall claimed that Deputy Lacombe told him to mind his own business and to call the police station if he needed any information. Marshall left and, by the time he returned, the police had taken defendant away.

William Williams, Jr. testified that he first met defendant on March 29, 2003, when defendant tried out for his semiprofessional football team. He noted that defendant was a good football player and a leader on the team, and that he participated in one tryout and one practice workout before his arrest. He testified that defendant came to practice with his cousin, and that he never saw defendant come to practice driving an automobile. After hearing the testimony and considering the evidence, the jury found defendant guilty as charged.

On appeal, defendant alleges one counseled assignment of error and one pro se assignment of error. In his counseled assignment of error, defendant argues that |fithe district court committed reversible error in denying his Motion to Suppress the Evidence and his Statement because the record clearly shows that defendant was arrested for a motor vehicle violation, but was later charged with possession of cocaine after the two officers allegedly found drugs on his console following a ten-minute search of his vehicle. In his pro se assignment of error, defendant argues that the appellate counsel rendered ineffective assistance in his original brief to this court because the brief clearly shows that the district court committed reversible error in denying defendant’s motion to suppress the evidence and his statements.

In his counseled assignment of error, defendant argues that the trial court erred in denying his motion to suppress the evidence and statements because the officers did not witness him involved in any illegal activity. He asserts that the drugs were not found immediately, but only after a ten-minute search of his vehicle. He alleges that the officers were dishonest when they testified that no one approached them when they were questioning him, and he points out that his alleged incriminating statement was not placed in the police report or tape recorded.

The State responds that the trial court did not err in denying the motion to suppress the evidence and statements since the initial stop was lawful after defendant committed a traffic violation and the drugs were lawfully seized after the officer observed them in plain view. The State further responds that, because defendant’s arrest was lawful, defendant’s voluntary and spontaneous statements made during the stop were admissible.

The Fourth Amendment of the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to conduct investigatory stops, [7which allow officers to stop and interrogate a person who is reasonably suspected of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984); State v. Gresham, 97-1158 (La.App. 5 Cir. 4/15/98), 712 So.2d 946, 951, writ denied, 98-2259 (La.1/15/99), 736 So.2d 200.

“Reasonable suspicion” to stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be- free from governmental interference. State v. Sanders, 97-892 (La. App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774. The violation of a traffic regulation provides reasonable suspicion to stop a vehicle. State v. Jones, 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958, 962. Evidence derived from an unreasonable stop will be excluded from trial. State v. Benjamin, 97-3065 (La.12/1/98), 722 So.2d 988, 989. In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband. Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); State v. Gentras, 98-1095 (La.App. 5 Cir. 3/30/99), 733 So.2d 113, 116, writ denied, 99-1302 (La.10/15/99), 748 So.2d 464.

In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence seized without a warrant. State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 17, writ denied, 00-599 (La.4/7/00), 759 So.2d 765. The trial court is afforded great discretion when ruling on a motion to suppress and its ruling will not be disturbed absent an abuse of that discretion. In determining whether the ruling on a motion to suppress was | ^correct, the court is not limited to the evidence adduced at the hearing on the motion, but may consider all pertinent evidence given at the trial of the case. State v. Washington, 00-1542 (La.App. 5 Cir. 2/14/01), 782 So.2d 639, 645, writ denied, 01-0940 (La.2/8/02), 807 So.2d 859.

In addition to the evidence adduced at trial, defendant testified at the suppression hearing that, on April 9, 2003, Ryan Marshall, his ex-brother-in-law, drove him to Marshall’s father’s house on Congress Street in Avondale to cut three people’s hair. Defendant explained that Marshall had to pick him up since defendant’s car was not working. Defendant had actually towed the car to Marshall’s house for repairs. At approximately 9:30 p.m., defendant asked Marshall whether the repairs on his car, a white Grand Marquis, were complete. Marshall indicated to defendant that he had repaired some, but not all of the problems.

Defendant wanted to test-drive the car so he drove around the block. He testified that, when he got to the corner of Senate and Delegate Streets, the car stopped going forward. Because defendant smelled gas fumes coming from the hood, he stopped, put the car in park, then put the car in drive to see if the car would go forward. Defendant explained that the car, however, started going backwards. As he was backing up, he noticed some headlights coming toward him. Defendant testified that he pulled over and got out of his car just as the taller deputy approached him and inquired about his car trouble.

Defendant told the officer about his car’s mechanical problems then the officer asked defendant for the vehicle information and his driver’s license. After defendant gave the officer his state ID, the officer left and another officer came and handcuffed him. Defendant claimed the officer did not tell him he was being 19arrested for cocaine possession or distribution. He also denied making any statements to the officer about cocaine.

Defendant testified that the officer put him in the back of the police car while both officers searched his car for approximately ten minutes. Defendant further testified that neither officer told him that he had violated any traffic laws. According to defendant, after the search was complete, Deputy Thibodeaux gave defendant a citation, which he signed, and the deputy said, “[w]ell, whose (sic) got all the drugs around here. What are you doing in this area? You’ve got to be buying drugs.” Defendant responded negatively then the officers took him away in the police car.

Defendant admitted that he had two felony convictions: possession of cocaine, for which he was sentenced to two years probation, and distribution of crack cocaine, for which he was sentenced to fifteen years at hard labor. Defendant indicated that he was on parole for distribution of crack cocaine at the time of the instant offense. Defendant testified that he had never used drugs in his life, and that he did not see cocaine in his car when he took it for a test drive.

After reviewing the entire record, including all pertinent evidence adduced at the trial of this case, we find no abuse of the trial court’s great discretion in its ruling on defendant’s motions to suppress and, thus, will not disturb its ruling. Regarding the initial investigatory stop, we find that the record clearly reflects that defendant was stopped for a traffic violation. Both Deputies Thibodeaux and La-combe testified that they stopped the vehicle because it was traveling backwards in the left lane. Deputy Lacombe explained that traveling backwards in the left lane of traffic was illegal since defendant should have been traveling in the right lane. In addition, defendant admitted at the suppression hearing that he was traveling backwards in the left lane when the officers stopped him, and that he was |insupposed to be in the right lane. Clearly, the officers had reasonable suspicion to stop defendant’s vehicle.

Further, we find that the record reflects that Deputy Thibodeaux had prior justification for his intrusion into the protected area of defendant’s vehicle. Deputy Thibodeaux testified that he shined his flashlight through the partially-opened passenger-side window of the vehicle for safety reasons. Further, under the plain view exception to the warrant requirement, it must be immediately apparent, without close inspection, that the item in view is contraband. Deputy Thibodeaux testified that he saw the plastic bag containing the “rocks,” which he immediately believed were contraband, when he shined his flashlight through the window. Because the traffic stop gave the officer justification for being next to defendant’s vehicle, and it was immediately apparent to the officer that the clear plastic bag that he saw contained contraband, the officer had the right to seize the contraband based on the plain view exception to the warrant requirement.

In State v. Jones, 01-177 (La.App. 5 Cir. 10/17/01), 800 So.2d 958, 960-963, deputies observed a vehicle disregard a stop sign. When they attempted to affect a traffic stop, the vehicle fled. The deputies observed the front seat passenger throwing small round objects out of the vehicle’s window. When the deputies were able to stop and approach the vehicle, they observed defendant stuff an object into the air conditioning vent on the dashboard. When defendant moved his hand away, one of the deputies saw a clear plastic bag. Once the occupants were removed from the vehicle, the deputy retrieved the plastic bag, which contained [ricrack cocaine. This Court concluded that the officers conducted a lawful traffic stop and observed crack cocaine in plain view and, therefore, the trial court properly denied defendant’s motion to suppress the evidence. Id. at 963.

On appeal, defendant also argues that the officers’ testimony was not credible. First, defendant contends that the officers only found the drugs after searching his vehicle for ten minutes, despite Deputy Thibodeaux’s testimony at the suppression hearing that he found the drugs immediately after shining his light through the window. Second, defendant alleges that the officers were dishonest when they testified that no one approached them when they were questioning him. Third, defendant asserts that Deputy Lacombe was not credible when he testified that defendant made incriminating statements regarding the drugs, because the statements were not placed in a police report or tape recorded. The credibility of witnesses at the suppression hearing is within the discretion of the trier of fact, who may accept, in whole or in part, the testimony of any witness, and such credibility determinations will not be reweighed on appeal. State v. Enclade, 03-353 (La.App. 5 Cir. 9/16/03), 858 So.2d 8, 13. In light of the foregoing, as in State v. Jones, supra, we find that the trial court did not err in denying defendant’s motions to suppress evidence and statement.

In his pro se assignment of error, defendant argues that his appellate counsel rendered ineffective assistance in his original brief to this court because the brief clearly shows that the district court committed reversible error in denying defendant’s motion to suppress the evidence and his statements. Defendant specifically contends that appellate counsel failed to argue in the original brief that he did not give the officers consent to search his vehicle and, therefore, all evidence allegedly confiscated should not have been admitted at trial.

l12We find that the warrantless search and subsequent seizure in this case was not based on consent, but on the plain view exception to the warrant requirement. Here, the officers observed defendant committing a traffic violation, which gave them the right to stop him. After the lawful stop, the officer saw contraband in plain view and had the right to seize it. Thus, defendant’s refusal to consent to the officers’ search of his vehicle has no bearing on the lawfulness of this seizure. Moreover, we find no failure to assist on his appellate counsel’s part in regard to this issue.

Finally, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920 and found one error that requires correction. We note that the trial transcript reflects that the trial judge informed defendant that “applications for post-conviction relief must be filed within two years after your sentence becomes final.” We therefore remand the case to the district court to inform defendant of the complete provisions of La.C.Cr.P. Art. 930.8 by sending appropriate written notice to defendant within ten days of the rendition of the Court’s opinion and to file written proof of receipt of such notice in the record. State v. Stelly, 98-578 (La.App. 5 Cir. 12/16/98), 725 So.2d 562, 564.

AFFIRMED; REMANDED.

      . On May 25, 2004, more than seven months after his sentencing, defendant filed a motion for appeal that was granted. That appeal was subsequently lodged with the Court. On December 20, 2004, the State filed a Motion to Dismiss defendant’s first appeal as untimely, which this Court referred to the merits of the appeal. On April 26, 2005, this Court granted the state's motion, dismissed defendant’s first appeal, and remanded the matter to allow the defendant the opportunity to seek reinstatement of his appeal rights. State of Louisiana v. Wendell V. Gray, 04-1272 (La.App. 5 Cir. 4/26/05), 902 So.2d 1060. Defendant subsequently filed an application for post-conviction relief seeking reinstatement of his appeal rights, which was granted by the trial court. This appeal follows.

      . See State v. Curtis, 98-1283 (La.App. 5 Cir. 6/1/99), 738 So.2d 657, 661, writs denied, 99-1950 (La.12/17/99), 751 So.2d 873 and 99-2679 (La.3/31/00), 758 So.2d 810 (using a flashlight to illuminate the interior of the defendant’s vehicle as a safety precaution since the passenger had not gotten out of the car did not constitute a search within the meaning of the Fourth Amendment); and State v. Young, 39,546 (La.App. 2 Cir. 3/2/05), 895 So.2d 753, 757 (an officer who peers into the interior of a vehicle during a legitimate traffic stop is not conducting a search within the meaning of the Fourth Amendment).


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Glenda McKinley ENGLISH v. Ernest James ENGLISH, Jr.
    No. 2006-CA-0602.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      H. Craig Cabral, Metairie, LA, for Plaintiff/Appellee.
    Eddie J. Jordan, District Attorney, Orleans Parish, Michelle Gullage, Aleta W. Barnes, Assistant District Attorneys, Child Support, Orleans Parish, New Orleans, LA, for Appellant, State of Louisiana.
    Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, and Judge ROLAND L. BELSOME.
   MAX N. TOBIAS, JR., Judge.

11 This appeal presents the issue of the appropriate method by which to satisfy competing child support arrearage judgments, an’issue that is res nova in this circuit. For the following reasons, we affirm the judgment of the trial court.

Glenda McKinley English (“Mrs.English”) and her husband Ernest James English, Jr. (“Mr.English”), were divorced on or about 11 March 1998; two children were born of the marriage. In connection therein, Mrs. English sued her former husband for child support and thereafter, for continued support and arrearages. After three years of litigation, Mrs. English was awarded support, a wage assignment, and a money judgment for arrearages on 3 December 1997. The wage assignment was in the amount of approximately $4,000.00 per month. Subsequent judgments for arrearages were awarded to Mrs. English in the years that followed. Ultimately, Mrs. English voluntarily agreed to reduce the support obligation due her to $1,200.00 per month on 17 December 2003.

After Mr. English was already paying support to Mrs. English, he was sued for child support by the State of Louisiana, Department of Social Services (“the State”), representing Mr. English’s girlfriend, Dana French, with whom he had a child. The portion of Mr. English’s wages subject to garnishment was sufficient to 13pay the current monthly child support obligations of both Mrs. English and Ms. French with money to spare. Ms. French was also granted a judgment for arrearag-es against Mr. English.

On 7 March 2005, Mrs. English filed a rule to show cause to rank the arrearage judgments, naming Mr. English’s employer, Blanchard & Company, Inc. (“Blanchard”), and the state, on behalf of Ms. French, as defendants-in-rule. The State filed an answer and peremptory exceptions of no cause of action and no right of action, arguing that it could not be made a party to the proceeding between Mr. and Mrs. English. In addition, the state requested costs and attorney’s fees for the filing of a frivolous pleading.

A hearing was held on 18 April 2005. On 13 July 2005, the trial court rendered judgment, denying the state’s peremptory exceptions and request for fees and costs. In addition, the court held:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Glenda McKinley English and the State of Louisiana, on behalf of Dana French shall continue to receive current child support as per current child support judgments.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the ar-rearages owed by Ernest English to Glenda McKinley English and the State, if any, shall be paid from Ernest English’s non-exempt remaining disposable income on a pro-rata basis.

It is from this judgment that the state appeals.

The State sets forth four assignments of error. First, the State contends that the trial court erred in denying its exceptions of no cause of action and no right of action. Next, the State argues that the law protects the State’s right to prime any Department of Social Services case for child support. The State further asserts that the trial court erred by even considering Mrs. English’s rule because she has not | -¡experienced any harm or injury by the State’s actions. Finally, the State disputes the trial court’s decision to deny its claim for costs and attorney’s fees.

First, we find no merit in the State’s contention that the trial court erroneously denied its exceptions of no cause of action and no right of action. Ms. English filed a rule to determine the appropriate payment of support and arrears in light of the two competing child support judgments for arrearages. In order to make a binding decision, it was necessary for all interested parties to be subject to the jurisdiction of the court. This would then include not only Ms. French, but also Mr. English’s employer, the entity that is charged with garnishing his wages. See La. C.C.P. art. 641.

La. R.S. 13:3928 states:

In any criminal or civil matter, a judgment, decree, order, or sentence of court, or a sale, transfer, or assignment of earnings by which a person is obligated to pay for the current or past due support, or both, of a child or children, or of a parent of a child or children if the Department of Social Services is providing support enforcement services to the parent, shall prime in enforcement any prior or subsequent judgment, decree, order, or sentence of court, or sale, transfer, or assignment of earnings, and shall be satisfied out of the nonexempt portion of disposable earnings.

We interpret this statute to mean any decree or judgment for child support will prime any other money judgment that is not for child support. That situation is not present in the instant case.

The second, and more specific, La. R.S. 46:236.3 states in pertinent part:

B. (1) Upon entry of any court order for the establishment or modification of support, the court shall order an immediate income assignment, which shall be effectuated immediately by providing a written notice to the payor or payors of income, unless there is a written 1 ¿agreement between the parties or the court finds good cause not to require immediate income assignment. This income assignment may be effectuated by providing a written notice to any payor or payors of income, advising the payor to withhold an amount for current support, plus an additional amount, to be determined by the obligee, toward any arrearage.
(5) When two or more orders to withhold income for support are received, the orders shall be prorated; however, the total amount withheld for all support orders shall not exceed the percentage of disposable earnings subject to seizure as defined in R.S. 13:3881 for the payment of a support obligation. If there are insufficient funds available to satisfy all orders, the orders for current support shall be given priority on a prorata basis. [Emphasis added.]

Admittedly, paragraph E(5) applies to current support orders. There is no statutory authority or case on point in this circuit that discusses the payment of arrears when there are two competing judgments. We note, however, that in Davis v. Contorno, 234 So.2d 470, 474 (La.App. 1 Cir.1970), the court held:

It appears that Section 3928, above, confers priority and preference upon “Any judgment, decree, order or sentence of court, whether in a civil or criminal case, by which a father is ordered to pay for the support of a child or children ...” Statutes in derogation of common rights, such as those creating liens and privileges, are to be strictly construed and not to be extended by implication or through considerations of equity. State ex rel. Maitrejean v. Demarest, 229 La. 300, 85 So.2d 522. Section 3928, being in derogation of common rights insofar as it creates a priority for payment of child support, must be strictly construed. On this basis, we hold that the provisions of Section 3928 apply only to orders of child support as such. It follows that Section L3928, above, does not apply and give enforcement preference to a judgment which renders executory a claim for past due and unpaid child support. Once the claim for unpaid support is rendered executory by conversion to judgment for a sum certain, it is not an order, judgment or decree for child support. It is merely an executory judgment enjoying no special rank or privilege. Here, however, the executory judgment being enforced by the wife is not in competition with some other judgment for enforcement purposes; it is the sole and only judgment being enforced against defendant by garnishment proceedings.

In the instant matter, both Ms. English and Ms. French have made their past due child support orders executory and, because both judgments are for child support, we find Davis inapplicable to the instant matter. In light of the absence of controlling, or even persuasive, authority on the issue, we find that the trial court, in declining to rank the arrearage judgments, applied an equitable formula to provide for their payment. We find that the judgment of the trial court takes into account the best interests of all the children fathered by Mr. English. Thus, this assignment of error is without merit.

| ^Finally, the State argues that it is entitled to costs and attorney’s fees based on the theory that the rule to show cause filed by Ms. English was frivolous. Since the judgment rendered by the trial court was in favor of Ms. English, a result we affirm on appeal, this assignment of error is without merit as well.

Consequently, we affirm the judgment of the trial court.

AFFIRMED.

      . La. R.S. 13:3881 provides in pertinent part: The exemption from disposable earnings for the payment of a current or past due support obligation, or both, for a child or children is fifty percent of disposable earnings, and the exemption from seizure of the disposable earnings for the payment of a current or past due support obligation, or both, for a spouse or former spouse is sixty percent of the disposable earnings,

      . In White v. Klein, 263 So.2d 496, 498 (La. App. 1 Cir.), writ denied, 262 La. 1097, 266 So.2d 223 (1972), the First Circuit clarified Davis as follows:

        In the Davis case, the defendant husband was making child support payments under a URESA order, and there was an executo-ry judgment against him for arrearages of child support. The wife had instituted garnishment proceedings against him to enforce collection of the latter judgment. Our holding in that case was to the effect that the provisions of R.S. 13:3829[sic], which gives priority to child support payments over judgments of garnishment, do not apply to executory judgments for arrearages of child support. It was not intended by the above quoted language to intimate that the character of child support payments is changed from an obligation or duty to a debt simply because they have been reduced to an executory judgment in order to facilitate collection thereof.
      Neither do we believe that child support payments can be deprived of their status as an obligation or duty because they arose and were reduced to an executory judgment prior to the remarriage of the husband and the establishment of the community.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Margaret MARLEY.
    No. 2006-KA-0317.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Eddie J. Jordan, Jr., District Attorney, Battle Bell IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Robert Glass, Glass & Reed, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS Jr., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

_JjThe State charged the defendant with one count of possession of cocaine and one count of possession of alprazolam in violation of La.Rev.Stat. 40:967. After the trial court heard and denied a motion to suppress the evidence, the defendant entered pleas of guilty as charged on both counts, reserving her right to appeal the court’s adverse ruling on the suppression issue. State v. Crosby, 338 So.2d 584 (La.1976). The court sentenced the defendant on both counts to concurrent terms of three years imprisonment at hard labor, suspended, and placed her on active probation with special conditions for three years. After reviewing the record in light of the applicable law and arguments of the parties, we find that the trial court erred in denying the defendant’s motion to suppress. Accordingly, we reverse the trial court’s ruling on the motion to suppress and remand the matter for further proceeding.

Relevant Facts and Procedural History

In the early afternoon of March 14, 2005, Officers Sam Palumbo and Monroe Dillon, III, of the New Orleans Police Department (NOPD) were | ^dispatched in response to a “suspicious person” call at 1729 Prytania Street and advised that a “white female at that location was possibly wanted for theft.”

Upon arrival, the officers observed the defendant, Margaret Marley, and another woman leaving an apartment in the building at 1729 Prytania Street. After leaving the apartment door ajar, the two women, rather than opening the locked gate to reach the front sidewalk, hopped over the brick wall separating the apartment building from the sidewalk.

Upon being stopped and questioned by the police officers, Ms. Marley explained that she lived in the apartment but that her key was broken and, accordingly, she left the door ajar and circumvented the locked gate. Ms. Marley produced her Louisiana driver’s license, which verified her identity but reflected a different New Orleans street address. A large sign in front of the apartment building identified the landlord of 1729 Prytania Street as New Orleans realtor, Howard Schmalz.

The police officers then entered Ms. Marley’s apartment without her consent or a warrant and discovered the evidence at issue. After arresting Ms. Marley, however, Officer Dillon easily verified that the apartment at 1729 Prytania was, in fact, Ms. Marley’s residence by simply calling the landlord. Ms. Marley was arrested and subsequently charged -with one count each of possession of cocaine and possession of alprazolam. She pleaded not guilty to both counts at her arraignment on May 24, 2005, and filed a motion to suppress the evidence.

At the end of the hearing, the trial judge denied the defendant’s motion without reasons. Thereafter, Ms. Marley withdrew her not guilty pleas and pleaded Lguilty as charged to each count pursuant to State v. Crosby, supra, reserving her right to appeal the court’s ruling on the motion to suppress the evidence.

Discussion

By her sole assignment of error, the defendant/appellant contends that the trial court erred by denying her motion to suppress the evidence.

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV; Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (warrantless entries into the home for arrest or seizure are invalid in the absence of exigent circumstances). Similarly, the Louisiana Constitution provides that “[ejvery person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. Art. 1 § 5.

Because the Fourth Amendment has drawn a firm line at the entrance to the home, a police officer needs both probable cause to arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into a private premises. State v. Talbert, 449 So.2d 446, 448 (La.1984); State v. Hathaway, 411 So.2d 1074, 1079 (La.1982). Because the evidence in this case was seized without a warrant as required by the Fourth Amendment of the U.S. Constitution and the Louisiana Constitution, Art. 1 § 5, the burden is on the State to show that a search is justified by some exception to the warrant requirement. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Tatum, 466 So.2d 29, 31 (La.1985); State v. Pomes, 376 So.2d 133, 135 (La.1979). Thus, to find the evidence in this Lease admissible, the court must find that probable cause to arrest existed prior to entry into Ms. Marley’s apartment and that exigent circumstances existed requiring immediate warrantless entry into the apartment. 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) (an intrusion into a protected area is justified only if there is probable cause to arrest and exigent circumstances).

The only evidence offered by the State at the hearing on the defendant’s motion to suppress was the testimony of Officer Dillon. He testified that, after being dispatched to the Prytania Street neighborhood with his partner in response to a call of a suspicious person involving a possible theft, he observed two young women exit an apartment and hop over the brick wall. Accordingly, the officers stopped the two women for questioning and when Ms. Marley’s identification did not verify her residence in the Prytania Street apartment, “we went into the apartment fearing that maybe someone could be in harm inside of the apartment for some reason because the door was left ajar. We asked her why she left the door open. She said she didn’t have a key to the apartment that she lived in, which was very suspicious so we entered the apartment.” Officer Dillon conceded on cross-examination that there was no information received or observed which suggested that a person was in the apartment. Further, Officer Dillon testified that after arresting the defendant and searching her apartment, verification of Ms. Marley’s residency was simple because “I looked on the building and saw that the building was owned by Howard [Schmalz], and I was a previous tenant of Howard [Schmalz]. That’s how I had his phone number.”

| sThe State argues that based upon the totality of these circumstances probable cause to arrest the defendant for burglary existed and, “[I]n light of the possible burglary, it was reasonable for the officers to believe that someone within the dwelling needed immediate aid.” Accordingly, the State reasons that exigent circumstances existed to search the apartment and, in any event, it was their “duty to secure the premises as a crime scene and further investigate the burglary.” However, as discussed below, the State’s contention that both probable cause for arrest and exigent circumstance exist in this case is contrary to the applicable jurisprudence and to the record evidence.

Probable Cause

Probable cause to arrest exists when the detaining officer has articulable knowledge of particular facts sufficient to reasonably suspect the detained person of criminal activity. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Buckley, 426 So.2d 103, 107 (La.1983); see also State v. Parker, 06-0053, p. 2 (La.6/16/06), 931 So.2d 353, 355 (probable cause to arrest exists when the facts and circumstances known to the officer, and of which he has reasonable trustworthy information, are sufficient to justify a man or ordinary caution in believing the person to be arrested has committed an offense); La.Code Crim.Pro.Ann. art. 213 (West 1993) (A police officer may, without a warrant, arrest a person when the officer has reasonable cause to believe that the person to be arrested has committed an offense). Whether probable cause existed at the time of the arrest must be determined without regard to the result of the subsequent search. State v. Finklea, 313 So.2d 224, 226 (La.1975). “The totality of the circumstances, ‘the whole picture,’ must be considered in determining whether reasonable cause exists.” State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) (quoting U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

A confidential informant may provide adequate information to establish probable cause for a warrantless arrest, so long as the basis for the information and the informant’s reliability, when examined under the totality of the circumstances, are established. Illinois v. Gates, 462 U.S. 213, 229-230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Ruffin, 448 So.2d 1274, 1278 (La.1984). In this case, however, Officer Dillon testified only that he and his partner responded to a radio dispatch concerning a suspicious person in the area and made no assertion that the information came from a known or reliable informant. See State v. Rudolph, 369 So.2d at 1325 (a mere assertion by police that an informant is reliable is insufficient to establish an informant’s credibility). Moreover, the police apparently had no knowledge or past experience with Ms. Marley and there is no evidence indicating that the police considered Prytania Street an area of high crime. See U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Buckley, 426 So.2d at 107. Finally, it was early afternoon on a weekday and the landlord’s name and number were readily available for verification of Ms. Marley’s residency in the building. Thus, although the police officers had a reasonable suspicion to stop and question the young women after observing them hopping a brick wall between the building’s front yard and the sidewalk, see State v. Belton, 441 So.2d 1195 at 1198 (citation omitted) (the totality of the circumstances much be considered in determining whether or not reasonable cause exists to temporarily detain a person), when, as in this case, the possibility of criminal conduct is no greater than the possibility of innocent behavior such equivocal conduct does not afford probable cause to arrest. See State v. Talbert, 449 So.2d 446, 447 (La.1984) (defendant’s surprised look and retreat into apartment is not probable cause for arrest); State v. Hathaway, 411 So.2d at 1079 (“[Reasonable cause will not arise unless flight, combined with other information upon which officers are entitled to rely, would indicate to a reasonable mind that the combination of circumstances is inconsistent with any innocent pursuit.”).

Further, the informant’s tip consisted only of an allegation of a suspicious person in the neighborhood and an allegation of possible theft. Nothing in the record supports the informant’s credibility and the police saw no objective evidence of a theft. Thus, the only information substantiated by the police prior to the entry into Ms. Marley’s apartment was that the address on her driver’s license did not reflect her Prytania Street residence. Clearly, under these circumstances, there was no probable cause to arrest the defendant for theft or burglary based upon her circumvention of a locked gate outside her residence. See State v. Mendoza, 376 So.2d 139, 142 (La.1979). (conduct not inconsistent with innocent pursuit, even when viewed together with verified portions of an informant’s allegations, i.e., defendant drove brown pick-up truck with tool-box on back, does not constitute probable cause for arrest).

Exigent Circumstances

Exigent circumstances are exceptional circumstances (such as the defendant’s escape, avoidance of a possible violent confrontation that could cause | «injury to the officers or the public, and the destruction of evidence) which, when coupled with probable cause, justify an entry into a ‘protected’ area that, without those exceptional circumstances, would be unlawful. State v. Hathaway, 411 So.2d at 1079. Our review of the pertinent jurisprudence indicates, however, in each case where a court has found that a warrantless entry is justified to determine the presence or safety of a person there are objective, articulated circumstances which support the need for an immediate entry into the premises. Recently, in Brigham City, Utah v. Stuart, — U.S. -, 126 S.Ct. 1943, 1948, 164 L.Ed.2d 650 (2006), the U.S. Supreme Court held that police have an objectively reasonable basis for entering a home without a warrant when they see an occupant of the home is seriously injured or imminently threatened with serious injury. The Louisiana Supreme Court upheld searches in (1) State v. Brady, 585 So.2d 524 (La.1991), where the police entered the defendant’s house after receiving a call from a neighbor who reported (at the defendant’s request) that the defendant’s husband had been stabbed and (2) State v. Perry, 502 So.2d 543 (La.1986), where the officers had already found bodies in one house, and the officers saw particles of bones and flesh outside the second house and then entered the second house without a warrant. Finally, this Court upheld a warrantless search in State v. Aicklen, 00-1181 (La.App. 4 Cir. 6/14/00), 767 So.2d 116, where the police entered the defendant’s residence after being contacted by his father who gave them a key to the residence and told them his son was suicidal and had gone to the residence to get a gun.

By contrast, in this case Officer Dillon stated that they entered the apartment because they feared “that maybe someone could be in harm inside of the apartment for some reason because the door was left ajar,” but failed to state an objective basis to support his fear that a person was possibly in the apartment and possibly in 19need of aid. Further, Officer Dillon conceded on cross-examination that he had no basis for believing that another person might be inside the apartment. Thus, even accepting arguendo that probable cause existed to arrest the defendant for theft, no exigent circumstances justify the nonconsensual, warrantless entry into the defendant’s apartment. Accordingly, any evidence seized as a result of the illegal search was in violation of the defendant’s constitutional rights and the trial court erred in denying the defendant’s motion to suppress the evidence.

Conclusion

After review of the record in light of the applicable law and arguments of the parties, we find that the trial court erred in denying the appellant’s motion to suppress the evidence. Accordingly, we reverse trial court’s judgment denying the motion to suppress, vacate the appellant’s guilty pleas and sentence, and remand the case for further proceedings.

JUDGMENT REVERSED, CONVICTION AND SENTENCE VACATED, AND REMANDED.

      . We note that the police report which was not admitted into the record at the hearing indicates that the address was 1725 Prytania Street, although Officer Dillon testified they were dispatched to 1729 Prytania.

      . There is nothing in the record which specifically states the height of the brick wall, but from the officer's statement that the defendant "hopped” over the wall, we assume the wall to be a short one.

      . In its brief, the State notes that the police report indicates that the tip received by the police also included the name "Maggie” and that the appellant fit the description given by the tip, but this information was not elicited at the suppression hearing and the police report was not introduced at the hearing and, accordingly, these two factors cannot be considered.

      . Louisiana jurisprudence treats "reasonable cause” as consonant with the probable cause concept and does not create a different standard. State v. Marks, 337 So.2d 1177, 1182 (La.1976).

      . At the hearing on the motion to suppress, the State bears the burden of showing that the confidential informant was credible and the information reliable. State v. Rudolph, 369 So.2d 1320, 1325 (La.1979), cert denied, 454 U.S. 1142, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982).


author: ROLAND L. BELSOME, Judge.

text:
    In re Charles J. JENKINS Applying for Medical Panel Review.
    No. 2006-CA-0566.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 15, 2006.

      Charles J. Jenkins, New Roads, LA, in proper person, Appellant.
    Dwight C. Paulsen, III, Bradley R. Bel-some, Lemle & Kelleher, L.L.P., New Orleans, LA, for Appellee.
    Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

_[jThis appeal arises out of a medical malpractice action. The Appellant, Charles J. Jenkins (“Mr. Jenkins”), in proper person, appeals the trial court’s granting of a peremptory exception of prescription in favor of the Appellee, Pendle-ton Memorial Methodist Hospital (“PMMH”). We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

On April 24, 2002, Mr. Jenkins filed a proposed complaint of medical malpractice ■with the Louisiana Patients’ Compensation Fund (“LPCF”) against PMMH seeking a review by a Medical Review Panel. The basis of Mr. Jenkins’ action is the wrongful conduct of PMMH employees with respect to their treatment of Mr. Jenkins from March 31, 2000 to April 7, 2000.

PMMH filed a peremptory exception of prescription asserting that Mr. Jenkins’ action was filed more than two years after the alleged wrongful conduct and thus clearly outside the one-year prescriptive period provided by La. R.S. 9:5628(A). The trial court granted PMMH’s exception of prescription on April 5, 2005. This timely devolutive appeal followed. On appeal, Mr. Jenkins asserts that the trial court erred in granting the exception of prescription because the trial court failed to consider the doctrines of contra non valentón and continuing tort.

STANDARD OF REVIEW:

In its analysis of a judgment granting an exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate Insurance Co., 2004-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444, writ denied, 2005-0526 (La.4/29/05), 901 So.2d 1069.

DISCUSSION:

Generally, the party pleading prescription bears the burden of proving the claim has prescribed. Pratt v. Louisiana State University Medical Center in Shreveport, 40,476, p. 4 (La.App. 2 Cir. 1/27/06), 921 So.2d 213, 216. When a claim has prescribed on its face, however, the burden shifts to the claimant to demonstrate that prescription was either suspended or interrupted. In re Medical Review Panel for Claim of Moses, 2000-2643, p. 6 (La.5/25/01), 788 So.2d 1173, 1177.

Under the provisions of La. R.S. 9:5628(A), a medical malpractice action must be filed within one year of the alleged act, omission, or neglect, or within one year from the date of the discovery of the alleged act, omission, or neglect, but in all events, no later than three years from the date of the alleged act, omission, or neglect. In the present case, the trial court, in granting the exception of prescription in favor of PMMH, determined that Mr. Jenkins did not file his action within one year of the alleged wrongful conduct. The trial court also held that Mr. Jenkins failed to allege any facts in support of a later discovery date.

lain connection with his medical malpractice complaint, Mr. Jenkins submitted a thirteen-page detailed narrative of the alleged disparate treatment provided by PMMH. We summarize Mr. Jenkins’ grievances as follows:

On March 31, 2000, Mr. Jenkins arrived at PMMH for a pre-admit examination in connection with a surgical procedure known as a spermatocelectomy, which was scheduled for April 6, 2000. During the examination, Mr. Jenkins relates a situation where the lab technician had difficulty drawing blood from his arm due to an alleged “manufacturer defect” in one of the blood collecting tubes. Mr. Jenkins was very alarmed by the incident and claimed to have soreness in his arm; however, Mr. Jenkins alleges no complications or followup treatment as a result of this incident.

On April 3, 2000, Mr. Jenkins returned to PMMH to pay his insurance deductible. Also on this date, Mr. Jenkins requested that he be allowed to file a formal complaint in connection with the incident of March 31, 2000. Mr. Jenkins described the complaint process in his narrative as a “marathon waiting session” and ultimately chose not to stay and complete the process.

On April 6, 2000, Mr. Jenkins was admitted into PMMH, and the surgical procedure was performed. Until his discharge the next afternoon, Mr. Jenkins’ narrative recounts numerous incidences of how he was allegedly harassed and/or ignored by the hospital staff.

On April 7, 2000, in preparation for his discharge from the hospital, an I-V needle was removed from Mr. Jenkins’ right hand. At that time, a loss of blood |¿occurred, and a hematoma formed at the site where the needle was removed. Mr. Jenkins was assured that the hemato-ma was not abnormal, and he was released shortly thereafter. Mr. Jenkins does not allege that he suffered any complications or that he required any further treatment as a result of this incident. Mr. Jenkins’ malpractice action was filed over two years later.

In its exception of prescription, PMMH contends that the medical malpractice action is prescribed on its face and that Mr. Jenkins has not met his burden to show that prescription was either suspended or interrupted. We agree.

It is clear from the record that the final act of alleged wrongful conduct, which occurred on April 7, 2000 (when the I-V catheter was removed), was immediately apparent to Mr. Jenkins; Mr. Jenkins’ own written narrative describes the incident in graphic detail. Accordingly, prescription began to accrue on April 7, 2000. Mr. Jenkins argues, however, that prescription was interrupted pursuant to the doctrine of contra non valentem, based solely on the fact that the PMMH nurse apparently failed to record the I-V incident in the hospital’s medical records. Mr. Jenkins maintains he was not aware that the incident had been concealed until March 28, 2002, the date that he received a copy of his medical records. He therefore argues that the one-year prescriptive period began to run from March 28, 2002, the date he discovered the alleged concealment. We note that Mr. Jenkins does not allege that he was unaware of the injury or his potential cause of action; rather, he only alleges that he was unaware that the incident was not documented in his medical records.

La. R.S. 9:5628(A) recognizes the doctrine of contra non valentem and allows the medical malpractice victim “one year from the date of discovery of the | Ralleged act, omission, or neglect” to bring an action for damages. Accordingly, in certain situations, the jurisprudential doctrine of contra non valentem agere nulla currit praescriptio operates to interrupt the running of prescription. Corsey v. State, Through Department of Corrections, 375 So.2d 1319, 1321 (La.1979); Ducote v. Touro Infirmary, 2003-0755 (La.App. 4 Cir. 10/22/03), 860 So.2d 125, 128-129, writ denied, 869 So.2d 819, 2003-3215 (La.3/12/04).

The Louisiana Supreme Court has held that “[t]he doctrine [of contra non valen-tem] itself is based on the theory that when the claimant is not aware of the facts giving rise to his or her cause of action against the particular defendant, the running of prescription is for that reason suspended until the tort victim discovers or should have discovered the facts upon which his or her cause of action is based.” In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La.1991).

The four situations where the doctrine of contra non valentem has been recognized are:

(1) where there was some legal cause which prevented the courts or their officers from taMng cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

Renfroe v. State, Through Department of Transportation and Development, 2001-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953.

Mr. Jenkins argues that the third application of contra non valentem applies in this case. We find Mr. Jenkins’ reliance on the doctrine of contra non valentem to be misplaced.

| (¡The record establishes through Mr. Jenkins’ own narrative that he was aware of each incident that he alleges gave rise to his cause of action from the moment that the alleged incidents occurred. We therefore reject Mr. Jenkins’ argument that PMMH’s failure to record the I-V incident in the medical records on its face caused any delay in Mr. Jenkins’ discovery of his potential cause of action for malpractice, or that it somehow prevented Mr. Jenkins from availing himself of his cause of action.

Finally, Mr. Jenkins argues that the doctrine of continuing tort should be applied. The alleged continuing tort originates from a bill dispute with PMMH, which was ultimately sent to a collection agency. Mr. Jenkins therefore argues that this bill dispute acted as a continuing tort, and further, that prescription did not begin to run until May 30, 2001, the date of the last bill. We find no merit in this argument.

Under Louisiana law, a continuing tort occurs only so long as both the tor-tious conduct and the damages continue. In re Medical Review Panel Proceeding of Vaidyanathan, 98-0289, p. 10 (La.App. 4 Cir. 9/23/98), 719 So.2d 604, 609, writ denied, 732 So.2d 1238, 1998-2674 (La.12/18/98)(finding that a physician’s failure to include an echocardiogram report in the patient’s medical records did not constitute a continuing tort or grounds for asserting contra non valentum). In the present case, Mr. Jenkins has not asserted either continuing treatment by PMMH or cumulative damage in connection with any of the alleged wrongful conduct concerning his bill dispute. Accordingly, Mr. Jenkins has failed to demonstrate a continuing tort.

| .CONCLUSION:

The record before us reveals that Mr. Jenkins’ medical malpractice complaint is prescribed on its face, and that Mr. Jenkins has not presented any evidence that the prescriptive period was interrupted or suspended. Consequently, the trial court did not err in granting the exception of prescription.

Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . Spermatocelectomy involves the surgical removal of a spermatic cyst.

      . Mr. Jenkins claims that the disparate treatment he received was the result of the complaint made in connection with the March 31, 2000 incident, together with the offensive behavior of an individual visiting him in the hospital, whose numerous offensive remarks were directed toward the female nurses.

      . Hematoma is a semisolid mass of blood in the tissues, caused by injuiy, disease, or a clotting disorder.


author: AMY, Judge.

text:
    Ernest R. GREMILLION, Jr., et al. v. KANSAS CITY SOUTHERN RAILWAY COMPANY, et al.
    No. 06-493.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 10, 2007.
    Patrick A. Talley, Jr., New Orleans, LA, Louis P. Warchot, Daniel Saphire, Washington, DC, for Association of American Railroads, Amicus Curiae.
    Charles C. Foti, Jr., Attorney General, Baton Rouge, LA, Judith M. Williams, Assistant Attorney General, Louisiana Department of Justice, Division of Risk Litigation, Alexandria, LA, for State of Louisiana, through the Department of Transportation and Development.
    Elizabeth S. Hardy, Thomas & Hardy, Lake Charles, LA, Robert A. Johnson, Marksville, LA, for Ernest R. Gremillion, Jr., Duane A. Gremillion, Jacqueline Gremillion Lambert, and Louis M. Gremil-lion.
    Shelly D. Dick, Forrester, Jordan & Dick, Baton Rouge, LA, for Kansas City Southern Railway Co.
    Kevin M. Dills, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for BNSF Railway Company, Amicus Curiae and Union Pacific Railroad Company, Amicus Curiae.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

| jThe State filed an application for supervisory writs with this court after the trial court rescinded a protective order originally imposed pursuant to 23 U.S.C. § 409. The trial court explained that it was rescinding the protective order due to this court’s ruling in Hargrove v. Missouri Pacific Railroad Co., 05-723 (La.App. 3 Cir. 1/18/06), 925 So.2d 25. This court granted the State’s application and reinstated the protective order. The Louisiana Supreme Court granted Kansas City Southern Railway’s writ application and remanded the matter to this court for briefing, argument, and full opinion in light of Hargrove, 925 So.2d 25, and Hargrove v. Missouri Pacific Railroad Co., 03-818 (La.App. 3 Cir. 12/17/03), 861 So.2d 903, writ denied, 04-0187 (La.3/26/04), 871 So.2d 349. After consideration, we again grant the State’s application, reinstate the protective order, and remand with instructions.

Factual and Procedural Background

This writ application involves a protective order issued in a case stemming from an automobile/train collision at a railroad crossing in Simmesport, Louisiana which resulted in the death of Barbara Gremil-lion. In January 2004, Mrs. Gremillion’s family filed suit against Kansas City Southern Railway Company (KCS) and the State of Louisiana, Department of Transportation and Development for allegedly breaching their duties to maintain and provide adequate warning at the crossing.

In response to KCS’s motion to compel discovery, the State filed a motion for protective order and argued that the documents sought were protected by 23 U.S.C. § 409. The trial court granted the motion for protective order and denied KCS’s motion to compel discovery. Thereafter, KCS filed a motion to reconsider the protective order. It argued that this court’s decision in Hargrove, 925 So.2d 25, ^rendered in January 2006, recognized a jurisprudential exception to the protection of 23 U.S.C. § 409. KCS argued that Hargrove permitted the production of the State’s documents insofar as they pertain to the question of whether federal funds were used. The trial court granted the motion and rescinded the previously entered protective order. The trial court also granted KCS’s motion to compel and ordered that the State produce all files and/or documents pertaining to the site and stating that the production was “for the express and limited purpose of determining whether or not federal funds participated in the installation of advanced warnings” at the crossing. The trial court further ordered that the documents be stamped as privileged and that the originals and all copies of the documents be returned to the State.

The State filed an application for supervisory writs with this court. This court granted the writ application and reinstated the protective order as follows:

WRIT GRANTED AND MADE PEREMPTORY.
We find the trial court erred in rescinding its prior protective order. In the case at bar, the trial court lifted a protective order previously issued by the trial court pursuant to 23 U.S.C. § 409. The trial court so ruled based on the erroneous contention advanced in a motion for reconsideration filed on behalf of the respondent, Kansas City Southern Railway Company, that this court’s decision in Hargrove v. Missouri Pacific Railroad Co., 05-723 (La.App. 3 Cir. 1/18/06), [925] So.2d [25], recognized an exception for the limited purpose of determining whether federal funds were used. Therefore, we hereby reverse the ruling of the trial court rescinding the protective order in favor of defendant, State of Louisiana through the Department of Transportation and Development and reinstate the previously entered protective order.

See Gremillion v. Kansas City So. Ry. Co., an unpublished writ rendered May 1, 2006 and bearing the docket number 06-493.

The Louisiana Supreme Court granted KCS’s writ application and remanded the matter to this court as follows:

Granted and remanded to the court of appeal for briefing, argument and full opinion. In its opinion, the Court is specifically directed to address |sits prior decision in Hargrove v. Missouri Pacific Railroad Co., 03-0818 (La.App. 3 Cir. 12/17/03), 861 So.2d 903, writ denied, 04-0187 (La.3/26/04), 871 So.2d 349, and Hargrove v. Missouri Pacific Railroad Co., 05-0723 (La.App. 3 Cir. 1/18/06), 925 So.2d 25.

See Gremillion v. Kansas City So. Ry. Co., 06-1289 (La.9/15/06), 937 So.2d 372.

Discussion

This case presents the question of whether an exception regarding federal funding exists to the privilege afforded by 23 U.S.C. § 409, which provides:

§ 409. Discovery and admission as evidence of certain reports and surveys
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

Thus, as relevant to railway crossings, the supreme court has explained that the privilege/protection of § 409 applies to:

(1) reports, surveys, schedules, lists or data,
(2) compiled or collected,
(3) for the purpose of identifying, evaluating, or planning the safety enhancement of ... railway-highway crossings,
(4) pursuant to 23 U.S.C. § 130.

Palacios v. Louisiana Delta R.R, Inc., 98-2932, p. 8 (La.7/2/99), 740 So.2d 95, 99 (footnote omitted). The supreme -court has further explained that the purpose of § 409 is to “[f|oster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil suits. The interest to be |4served by such legislation is to obtain information with regard to the safety of roadways free from the fear of future tort actions.” Reichert v. State, Dep’t of Transp. and Dev., 96-1419, p. 4 (La.5/20/97), 694 So.2d 193, 197 (quoting Perkins v. Ohio Dep’t of Transp., 65 Ohio App.3d 487, 584 N.E.2d 794 (1989)).

In Long v. State ex rel. Department of Transportation and Development, 04^0485 (La.6/29/05), 916 So.2d 87, the supreme court addressed the question of whether § 409 precludes the admission of correspondence between the state and a municipality regarding proposed railway upgrades. While the court concluded that the correspondence in that case was protected by the § 409 privilege, it cautioned that:

[A]ll letters in the file of the DOTD are not protected by virtue of being in its possession. Rather the purpose of the document, no matter in whose possession, must relate to purposes as defined in 23 U.S.C. §§§ 130, 144 or 152. [Pierce County v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003).] The privilege afforded to state agencies in § 409 and the documents at issue must not be viewed in a vacuum; rather, inquiry should be directed toward the purpose for which the documents are created.

Id. at 100. The issue of federal funding as it relates to pre-emption of state tort law causes of action was not specifically addressed in Long.

However, the cautious approach to § 409 expressed above was followed in this court’s two opinions in Hargrove insofar as the purpose behind the collection of the documents sought was considered. When this court first considered Hargrove, 861 So.2d 903 (hereinafter Hargrove I), the panel evaluated whether the documents were subject to the § 409 privilege. The panel found that the documents were not compiled or collected for safety enhancement purposes, as is required by § 409 and the factors enunciated by the supreme court in Palacios, 740 So.2d 95. Rather, the documents were compiled to show compliance with 23 C.F.R. §§ 646.214(b)(3) and (4). These ^regulations were promulgated under 23 U.S.C. § 130 and address the adequacy of warning devices installed using federal funds and, accordingly, relate to whether state law tort law claims are pre-empted. See Norfolk Southern Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). As the documents were compiled for purposes outside the scope of § 409, they were not subject to its privilege. The matter was remanded for further proceedings.

When Hargrove I was remanded, the railroad filed a motion asserting that federal funds had been used at the crossing and, thus, the plaintiffs’ state tort law claims were pre-empted. The trial court granted the motion, finding the claims preempted. The matter returned to this court in 2006, after the plaintiffs appealed the determination. See Hargrove, 925 So.2d 25 (hereinafter Hargrove II). In one of their assignments of error, the plaintiffs asserted that the documents submitted by the railroad in support of its pre-emption argument were privileged under § 409 and, thus, should not have been considered by the trial court. Id. This court again confirmed that the documents were not subject to the § 409 privilege and noted that it had previously rejected the argument due to the collection of the documents for purposes of demonstrating preemption. Id.

Confusion arose in the present case due to Hargrove IPs inclusion of language from the trial court which contained a reference to a § 409 “exception.” Neither Hargrove opinion from this court, nor the case cited therein, see Shanklin v. Norfolk S. Ry. Co., 173 F.3d 386 (6th Cir.1999), reversed on other grounds, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000), created an exception to § 409. Rather, both Hargrove opinions found the § 409 privilege inapplicable insofar as the party seeking protection failed to demonstrate that the requisites of the section were met. In short, | fiHargrove I and Hargrove II held that the documents at issue in that case were not compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of the railway-highway crossing. Thus, through application of the wording of § 409, the section was inapplicable, and the documents were not privileged. We do not revisit the merits of either Hargrove opinion insofar as they addressed the individual documents at issue in that case.

With this background in mind, we return to the present case. After the release of Hargrove II, KCS filed for reconsideration of the trial court’s earlier determination that the materials at issue were subject to the § 409 privilege. The trial court granted the motion for reconsideration, finding that Hargrove II, recognized an “exception” to the § 409 privilege. Thus, the trial court rescinded the previously entered protective order. In this regard, and for the reasons expressed above, the trial court erred. Again, and despite language in Hargrove II that apparently led the trial court to reverse its previous ruling, there is no exception to § 409 pertaining to the funding issue. We again grant the writ application wherein the trial court lifted its protective order.

However, given the contents of the writ application, we are unable to resolve the question of whether the trial court was correct in its original determination that § 409 was applicable to the documents. This issue of the original ruling was not squarely presented to this court in either the initial writ application or in the filings on remand. Rather, the application and opposition were focused on the question of the trial court’s reconsideration of the previously entered protective order. As the writ application does not offer the documents sought, nor is the review process originally employed by the trial court apparent, we are unable to determine whether |7§ 409 is applicable to the documents. Accordingly, we remand this matter and instruct the trial court to conduct a hearing and inspection of the documents sought by KCS. Should it determine that, consistent with its initial ruling, the documents satisfy the requirements of § 409, the protective order should be maintained. However, if the trial court examines the documents and determines that the documents were compiled for purposes outside of the scope of § 409, the protective order should be revoked for this limited purpose.

DECREE

For the foregoing reasons, the writ application is granted. Costs of this proceeding are assessed to the respondent, Kansas City Southern Railway Company. The matter is remanded to the trial court for further proceedings consistent with the instructions contained herein.

WRIT GRANTED. REMANDED.