author: MOORE, J.

text:
    Wayne EBARB, et al., Plaintiff-Appellants, v. WILLIS KNIGHTON MEDICAL CENTER, et al., Defendant-Appellees.
    No. 44,856-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 2010.
    Rehearing Denied Feb. 25, 2010.

      Susan E. Hamm, for Appellants.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP by Joseph S. Woodley, Lawrence W. Pettiette, Jr., Shreveport, for Appellees, James J. Kim, M.D. & La. Med. Ins. Co.
    Watson, Blanche, Wilson & Posner by Peter T. Dazzio, Chris J. LeBlanc, Baton Rouge, for Appellees, Willis Knighton Health Sys., John Felty, M.D. & Eric Chen, M.D.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

The father, mother and brothers of 12-year-old Cody Ebarb appeal a jury verdict that rejected their claim of medical malpractice arising from Cody’s death by stroke in the Willis-Knighton Health System Intensive Care Unit. For the reasons expressed, we affirm.

Factual Background

Cody suffered from several preexisting medical problems, including Epstein-Barr syndrome (a kind of viral chronic fatigue syndrome), herpes virus of the eye, and suspected Marfan syndrome (a genetic disease of the connective tissue). Cody was also double-jointed and often “popped” various joints. He had spent much time in medical treatment, and his mother described him as not a robust child.

On Sunday, November 4, 2001, the family went to their hunting lease to ride four-wheelers. After an unusually active day for him, Cody said he had “popped” his neck, was feeling dizzy and seeing an unusual light, but he begged not to be taken to the hospital again.

The next morning, Ms. Ebarb was driving Cody to his pediatrician, Dr. Sudha Rao, but stopped to drop off his brother at school. At the school, Cody suddenly said he couldn’t see, then fell to the floor and started moaning. An ambulance carried him to Willis-Knighton South. EMTs noted only that he was having seizures.

Cody reached the ER at 8:30 am. Dr. John Felty, an emergency medicine physician on contract to Willis-Knighton, was on duty. Accounts of events in the ER and ICU varied widely.

| ¡According to Ms. Ebarb, she told Dr. Felty about Cody’s symptoms of the previous night and asked him to call Dr. Rao, but he refused, saying he would not call her until he ran some tests. Ms. Ebarb also testified that even though he could not open his eyes or speak, Cody definitely was aware of his surroundings and communicated with them by nodding his head, notably during a spinal tap procedure. The nurses’ notes at 10:40 am seem to confirm, “Patient responds to verbal stimulus.” Ms. Ebarb testified, however, that Dr. Felty basically abandoned Cody after about 10:30 am, never telling her any test results, and she could not find a nurse to help them.

About 2:00 pm, Dr. Eric Chen, a pediatrician, arrived. Ms. Ebarb tried to tell him the whole story, but he was not interested; he merely glanced at Cody, ordered some Ativan (a widely used sedative and anticonvulsant), and left. Cody’s pediatrician, Dr. Rao, did not arrive until about 5:00 pm, and according to Ms. Ebarb she was irate to find Cody still in the ER, not the ICU; he was promptly transferred. Ms. Ebarb testified that by this time, Cody was much worse: he was unable to move his arms or communicate, and was sweating profusely.

Cody was moved to the ICU around 6:30 pm, at which time Dr. James Kim, a neurologist, and Dr. Giao Do, a pediatric in-tensivist, arrived. According to Ms. Ebarb, Dr. Kim told her Cody was stable and doing fine, and they would run some more tests in the morning.

The next morning, however, while Ms. Ebarb had run home to fetch Cody’s toiletries, Cody went into cardiac arrest and “coded.” There was no Rautopsy, but an MRI taken while the boy was on life support showed a dissected basilar artery, a form of stroke. The family took him off life support on November 10.

Dr. Felty agreed that he did not immediately call Cody’s pediatrician, Dr. Rao, but insisted that the standard of care required him first to perform a basic emergency exam. He described running a battery of tests to explore and rule out the normal causes of symptoms like Cody’s: a CT scan, spinal tap and blood chemistries, which were not complete until about 12:15 pm, and were all negative. He also gave Cody a small dose of Ativan to control the seizures. He admitted not performing a full neurological exam because Cody could not communicate and Was flailing his limbs involuntarily. He disputed Ms. Ebarb’s recollection that Cody was calmly nodding in response to questions; nurses’ notes at 3:30 pm confirmed that the patient was “thrashing in bed, continues unresponsiveness.” He also admitted not ordering an MRI, explaining that subspecialists, not ER physicians, normally do so, and that even high-definition MRI images might fail to show an occlusion during the first six hours.

Once the tests were complete, Dr. Felty called Dr. Rao, but she must have been busy because her partner, Dr. Chen, came. Dr. Felty testified that he verbally conveyed Cody’s situation, and entrusted the patient to Dr. Chen at that time. Dr. Felty admitted he did not “chart” all the activities he related at trial, but insisted he did them all, satisfying his standard of care. Finally, he stated that a tear in the basilar artery — which is sheathed by the spine — is exceedingly rare, especially in pediatric patients.

|4Pr. Chen testified that he took the call for his partner, Dr. Rao, came to the ER about 1:30 pm, and got a verbal synopsis from Dr. Felty. He found Cody thrashing, moaning, unresponsive and difficult to examine. Like Dr. Felty, Dr. Chen could make no definitive diagnosis, but he ordered an EEG to test for epilepsy and seizures, a consultation with Dr. Kim, the neurologist, and ordered Cody to the ICU. He was unaware that after this order, Cody spent several more hours lying in the ER. Dr. Chen added that he verbally relayed his findings to Dr. Rao, but did not chart any of his activities. His final involvement in the case was his phone call to Dr. Kim.

Dr. Giao Do, the pediatric intensivist, testified that he saw Cody in the ICU about 7:30 pm. He did not think Cody was showing classic signs of a stroke, so he felt an immediate MRI was not needed. After consulting with Drs. Rao and Kim, he scheduled an MRI and repeat CT scan for the following morning. By the next morning, unfortunately, Cody had coded, and the MRI occurred while he was on life support.

Procedural History

The Ebarbs filed a claim with the commissioner of insurance against Willis-Knighton and the various doctors: Felty, Chen, Do, Rao and Kim. The medical review panel (“MRP”) unanimously absolved all healthcare providers, finding the evidence did not support the conclusion that any of them breached the applicable standard of care. In written reasons, the MRP found no “deterioration of the patient’s condition while in the ER” and that because of the nature of the case, the “most competent general neurologist would not correctly diagnose this condition early on.”

IsThe Ebarbs then filed this suit against Willis-Knighton and Drs. Felty, Chen, Kim and Do. Dr. Rao was not named as a defendant, and Dr. Do was dismissed voluntarily in August 2006. The matter proceeded to a five-day jury trial in August 2008. The Ebarbs and Drs. Felty, Chen and Do testified as outlined above; Drs. Kim and Rao did not testify.

The Expert Testimony

Dr. Walter Simmons of Scottsdale, Arizona, testified for the Ebarbs as an expert in emergency medicine with experience in pediatrics. His position was that an MRI performed shortly after Cody arrived in the ER would have shown the basilar artery dissection and improved his chances of survival. He strongly criticized Dr. Felty for failing to consider vascular injury, order an MRI, run a complete workup, or call for consultation sooner, and for keeping an incomplete chart. He testified that an ER doctor’s standard of care was to order an MRI; if Willis-Knighton could not do it, Dr. Felty could have sent Cody to Parkland Hospital in Dallas, which had more advanced equipment.

Dr. Simmons also criticized Dr. Chen for taking no history, and for calling Dr. Kim without conveying that the case was an emergency. He criticized Willis-Knighton for not monitoring Cody in the ER and not promptly transferring him to ICU when Dr. Chen so ordered. Dr. Simmons agreed, however, that basilar artery injury is exceedingly rare in children, and would not have been his first diagnosis, but he maintained that it is not 100% fatal.

| i;Dr. James Kopitnik of Casper, Wyoming (and formerly of Parkland in Dallas), testified for the Ebarbs as an expert in neurosurgery. He assumed that Cody had an embolus or TIA (ministroke) on the way to school, and that EMTs mistakenly labeled it as a seizure, with the result that doctors never considered stroke as the culprit. He conceded that Dr. Felty’s initial evaluation was appropriate, but like Dr. Simmons, Dr. Kopitnik thought a prompt MRI would have identified the clot in time for doctors to give Cody anticoagulants. He also suggested an arteriogram to pinpoint the exact location of the blockage. He considered it a breach of the standard of care for Dr. Felty not to order these tests while Cody was plainly deteriorating.

Dr. Kopitnik concluded that Cody actually died from hydrocephalus (excess spinal fluid accumulated in the brain); he said a minor drainage procedure called ventri-culostomy could have remedied this. He also suggested, as intervention, direct surgical repair, a bypass around the artery, or even “cleaning out” the artery. He sharply criticized Dr. Felty’s poor charting. On cross-examination, Dr. Kopitnik conceded that if Cody really had a torn basilar artery, it was a rare condition with a high mortality rate.

Dr. Ann Henderson-Tilton, a pediatric neurologist from Galveston, Texas, served on the MRP and testified for Willis-Knigh-ton and Dr. Felty. She found that Cody’s neurological “event” began Sunday night, and by the time he reached the ER Monday morning in an altered mental state and unable to communicate, his condition was irreversible. She agreed with Dr. Felty that ER doctors do not order MRIs, and an MRI would have been difficult with a flailing child. Also, an anticoagulant could have been |7hazardous for a child in Cody’s state, and the ventriculostomy— basically boring a hole in the back of the head — would not have addressed the underlying problem. Dr. Tilton felt that all healthcare providers acted appropriately in this rare, irreversible case.

Dr. Donald Smith, a neurosurgeon at LSU Health Sciences Center in Shreveport, testified for Willis-Knighton and Dr. Felty. He concluded that Cody had a rare vertebral artery stroke at school on Monday morning, and by the time he got to the ER, Dr. Felty could not give a full neurological exam. He testified that an earlier MRI might have clarified the diagnosis, but not altered the outcome; he specifically disagreed with Dr. Kopitnik on this point. Dr. Smith was emphatic that Cody’s condition was rare and lethal; he stated that no surgical intervention could have saved him.

Dr. John Willis, a pediatric neurosurgeon at Ochsner Health System in New Orleans, served on the MRP and testified for Dr. Kim. In his view, Cody’s symptoms upon arrival at the ICU still did not suggest a stroke; hence, Dr. Kim met the standard of care by ordering the EEG Monday night and the MRI Tuesday morning. He also felt that Dr. Felty’s series of tests earlier that day was appropriate. Like Dr. Smith, he stated that a dissected vertebral artery is exceedingly rare, and not all pediatric neurologists could diagnose it. He also agreed with Dr. Smith that by the time Cody reached the ICU, there was no chance of saving him.

Action of the District Court

After deliberating about two hours, the jury found that each defendant’s conduct was not a breach of the standard of care and not a cause Rof Cody’s death. After the court rendered judgment dismissing all defendants, the Ebarbs moved for JNOV or new trial as to all except Dr. Chen. The court denied these motions, and the instant appeal followed.

The Parties’ Positions

By three assignments of error, the Ebarbs contend (1) the jury verdict was clearly wrong and manifestly erroneous; (2) they were entitled to a JNOV; and, alternatively, (3) they were entitled to a new trial. Although they concede the case is highly factual, they argue that the defense experts’ testimony was not supported by the facts, and the documents and objective evidence so undermine those experts’ findings that manifest error is present. In support they cite Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646. They contend that Dr. Felty did not adequately diagnose Cody’s condition upon arrival in the ER. Specifically, they urge that he failed to order an MRI, which according to Drs. Simmons and Kopitnik should have been an automatic and would have identified the problem in time to take the surgical actions recommended by the defense experts. Further, Cody deteriorated while in the ER, an observation that should have alerted Dr. Felty and the nurses that he was having a stroke rather than a seizure. They argue that the Ati-van ordered by Dr. Felty actually masked the symptoms of stroke. They also contend that Dr. Felty breached the standard by not promptly calling Dr. Rao, by abandoning Cody after noon on Monday and by keeping a sloppy chart.

|¡)Dr. Felty and Wilhs-Knighton respond that the evidence was overwhelming that “nothing could have been done to change the outcome regardless of the diagnosis,” as aptly stated by Drs. Tilton and Smith. They also cite their experts’ view that ER physicians should not normally order MRIs; that an MRI would have been difficult with a squirming child; and that, at any rate, it might not have detected the clot. They urge it was reasonable, and within the standard of care, to explore and eliminate other, more likely causes of Cody’s symptoms than a blocked artery in the neck. They reiterate that Cody’s condition was so rare that it eluded not only Dr. Felty, but every other specialist on the case. Finally, they submit that although the ER chart is less than perfect, the jury did not abuse its discretion in finding that Cody did not substantially deteriorate while he was in the ER. They submit that the verdict should be completely affirmed.

Dr. Kim has filed a brief, chiefly to remind the court that the Ebarbs did not name him as an appellee. He also urges that no expert found that he breached the applicable standard of care.

Applicable Law

To establish a claim for medical malpractice, the plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) a causal connection between the breach and the resulting injury. La. R.S. 9:2794 A; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Snelling v. LSU Health Sciences Center, 43,332 (La.App. 2 Cir. 6/4/08), 986 So.2d 216, writ denied, 2008-1322 (La.10/3/08), 992 So.2d 1013. A | ipphysician is not required to exercise the highest degree of care possible; rather, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances. Fusilier v. Dauterive, 2000-0151 (La.7/14/00), 764 So.2d 74. Stated another way, a physician is not held to a standard of absolute precision; rather, his conduct and judgment are evaluated in terms of reasonableness under the existing circumstances and not with the benefit of hindsight. Lowrey v. Borders, 43,675 (LaApp. 2 Cir. 12/10/08), 1 So.3d 635, writ denied, 2009-0043 (La.3/6/09), 3 So.3d 487.

Because the plaintiffs have not shown any legal error that interdicted the fact-finding process, the manifest error standard applies. Under this standard, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Sal-vant v. State, supra. Even if it would have decided the case differently, the appellate court must not reweigh the evidence or substitute its own factual findings. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or plainly wrong. Id. Where documents or objective evidence so contradict a witness’s story that no rational juror could credit it, the court of appeal may find manifest error even in a finding purportedly based on a credibility determination; however, when such factors are not present, and the finding is based on a credibility call, that finding can virtually never be manifestly erroneous or plainly wrong. Id.; Jackson v. Tulane Med. Center Hosp. & Clinic, 2005-1594 (La.10/17/06), 942 So.2d 509.

InThe grant of a JNOV under La. C.C.P. art. 1811 is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Forbes v. Cockerham, 2008-0762 (La.1/21/09), 5 So.3d 839, and citations therein. If there is evidence opposed to the motion for JNOV of such quality and weight that reasonable and fair-minded people, in the exercise of impartial judgment, might reach different conclusions, then the motion should be denied. King v. Brown Dev. Inc., 43,827 (LaApp. 2 Cir. 2/4/09), 4 So.3d 231, writ denied, 2009-0499 (La.4/17/09), 6 So.3d 796.

A new trial shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. art. 1972(1). Although the grant or denial of a motion for new trial rests within the trial court’s wide discretion, the court cannot set aside a judgment if it is “supported by any fair interpretation of the evidence.” Campbell v. fork Inc., 2003-1341 (La.2/20/04), 870 So.2d 968, and citations therein; Cash Point Plantation Equestrian Center v. Shelton, 40,647 (La.App. 2 Cir. 1/25/06), 920 So.2d 974.

Discussion

The Ebarbs’ initial complaint is that Dr. Felty failed to recognize the symptoms of stroke soon after Cody arrived in the ER. The record shows, however, that Cody’s symptoms—falling down, flailing arms and legs, loss of speech— were consistent with a seizure or “altered mental state.” Dr. Do, the pediatric inten-sivist, testified that even when he saw Cody at 7:30 pm [ ^Monday, he did not see “classic signs of stroke.” Dr. Felty testified, with corroboration from Dr. Tilton, that sound ER practice was to test for the common causes of the observed symptoms, and that the series of tests administered, including the CT scan, spinal tap and blood chemistries, were proper to accomplish this. Even Drs. Simmons and Kopitnik admitted that injury to the basilar artery is exceedingly rare in children. Only Dr. Kopitnik testified that “stroke has to be at the very top of your diagnosis,” a view which the jury may have considered tinged with hindsight. On this record, the jury was entitled to find that Dr. Petty’s initial workup was reasonable and met the standard of care for an ER physician treating this kind of patient.

The Ebarbs’ leading complaint, that Dr. Felty failed to order an MRI which would have identified the problem sooner, was also subject to conflicting expert opinion. Dr. Felty and the defense experts testified that it is not the role of an ER doctor, but of a consulting subspecialist, to order an MRI. Dr. Simmons, the Ebarbs’ expert in emergency medicine, disagreed, but admitted that it was unusual for him to order an MRI. Even so, both Dr. Simmons and Dr. Kopitnik strongly felt that the MRI would have identified the source of Cody’s problem, and we would perhaps agree that on a strong showing of need, even an ER physician’s standard of care might include ordering an MRI. Dr. Tilton felt just as strongly that it would have been impossible to take an MRI on a squirming child for whom additional sedation was not indicated. Dr. Felty also testified that even an MRI might not have disclosed the damage to the artery until several hours after the [13initial injury. This conflicting evidence would support a finding that ordering the MRI in this instance might have represented the highest degree of care, but the jury was entitled to find that Dr. Felty did not breach the ordinary standard of care.

Overlying the questions of standard of care is the issue of causation, which was made more difficult by the lack of an autopsy. Dr. Tilton testified that Cody suffered his neurological event on Sunday evening, and by the time he reached the ER he had no more than a 1% chance of survival without a severe brain deficit. Dr. Smith theorized that Cody had a stroke at his brother’s school on Monday morning, when he lost his vision, but that given the size of the infarct, survival was “unlikely” without severe neurological deficits. Dr. Willis also felt that Cody suffered a stroke when he fell down at school, and by the time he reached the ER the event was “not survivable.” Dr. Simmons did not state when the injury occurred, but he agreed that there was a “short window” to diagnose it. Dr. Kopit-nik felt that a ministroke occurred on the way to school, and that Cody could have been treated effectively had he not been allowed to lie for hours in the ER. Dr. Kopitnik also testified that giving Cody an anticoagulant like Heparin, and performing a ventriculostomy or bypass, or transferring him to a hospital in Dallas, would have given him a “good chance” of survival. Dr. Tilton, however, testified that bor-mg a hole in the skull to relieve pressure would not have fixed the underlying problem, and Dr. Smith stated that no surgical intervention would have changed the outcome. Based on common experience, the jury could reasonably dismiss the practicability of placing a Impatient like Cody in an ambulance for a three-hour ride to Dallas. This record easily shows by a preponderance of the evidence that Cody could not have survived, whether Dr. Felty satisfied or deviated from the standard of care. The jury was not plainly wrong to find a lack of causation.

The finding of no causation obviates the need to analyze extensively the remaining factual issues posed by this record. Ms. Ebarb testified, and an early nurses’ note confirms, that as late as 10:40 am Monday, Cody could respond to verbal stimulus. However, Dr. Felty could not recall that Cody ever did so, and a later nurses’ note showed “continued unresponsiveness.” This raises the question of whether, contrary to the MRP’s opinion, Cody really did deteriorate in the ER? There was no explanation for why Cody lay in the ER for four hours after Dr. Chen ordered him to the ICU. If any intervention could have helped, this untoward delay would have diminished its utility. Finally, there is the disturbing absence, in both Dr. Felty’s and Dr. Chen’s physician’s notes, of any indication that they performed even a small fraction of the measures they described at trial. As in Willis v. Smith, 43,958 (La. App. 2 Cir. 1/14/09), 999 So.2d 1244, the jury apparently accepted the doctors’ trial testimony over their sketchy charts.

In different circumstances, these anomalies may well have tilted the scale in favor of a finding of liability. On the present record, however, they do not offset the lack of evidence to prove the essential elements in this tragic case or establish a showing of manifest error. Salvant v. State, supra. They also do not point “so strongly and overwhelmingly in favor” of the Ebarbs that a JNOV was warranted, Forbes v. Cockerham, supra. Finally, | lsthe district court did not abuse its vast discretion in denying the motion for new trial. Campbell v. Tork, supra.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by the appellants, the Ebarbs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, DREW and MOORE, JJ.

Rehearing denied.

      . Salvant actually reinstated a judgment in favor of the healthcare providers.


source: Caselaw Access Project

license: Public Domain

text:
    The ESTATE OF Luke V. PETROVICH, Nebe Zibilich Petrovich, Anthony V. Petrovich, and Ann Bailey Petrovich v. JULES MELANCON, INC. and Jules Melancon.
    No. 08-CA-185.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      G. Patrick Hand, Jr., Gretna, LA, for Defendants/Appellants.
    Frank T. Fradella, Metairie, LA, Thomas J. Cortazzo, Lance J. Arnold, New Orleans, LA, for Plaintiffs/Appellees.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   LON APPLICATION FOR REHEARING

The appellees, the Petrovich plaintiffs, filed an application for rehearing, asserting that this Court lacks jurisdiction to consider the appeal. The appellees alternatively argue that this Court erred in reversing the District Court judgment and in failing to recognize that the Petrovich plaintiffs are entitled to the funds in the registry of court by virtue of La. R.S. 13:4106(B) or as “substitute collateral.” The appellees state that this Court did not have the benefit of the full record when it rendered its original opinion and that a rehearing would allow this Court to review the entire record. The appellees, however, are incorrect in their assertion that this Court did not have the benefit of the full record when it rendered its original opinion. Mindful that the appellees did not file a brief in this matter, this Court rendered orders requesting supplementation from the District Court. On application for rehearing, this Court issued an order on October 21, 2009 directing |athe Clerk of this Court to obtain all of the records and supplements that this Court considered in rendering the original opinion. Following a careful review of our original decision in this case and all of the records and supplements before this Court, in light of the arguments on rehearing, we maintain our original judgment as amended. The application for rehearing is granted in one respect only. Because a notice of judgment was never mailed nor personally delivered to the Petrovich plaintiffs or their counsel, we grant the rehearing in part for the limited purpose of amending our previous decree. In all other respects, the application for rehearing is denied.

JURISDICTION

This dispute arises from a District Court judgment awarding the Petrovich plaintiffs the full amount of the funds in the registry of court. In our original opinion, we concluded that the trial court erred in awarding the amount based on theories of “substitute collateral” or “deficiency judgment.” We recognized that the trial judge had no authority to award any portion of the deposit until there had been a final determination of the Petrovich plaintiffs’ compensable interest, if any. We reversed the judgment and remanded the matter for an evidentiary hearing. We ordered the Petrovich plaintiffs to deposit the sum of $105,719.30, plus accumulated interest into the registry of court within 10 days of the original opinion.

The Melancon plaintiffs/appellants took a devolutive appeal from the District Court judgment granting the Petrovich plaintiffs’ motion to withdraw funds deposited in the registry of the court. The appellees argue that the appeal should be dismissed for lack of appellate jurisdiction because the Melancon appellants failed to suspensively appeal from the judgment. The appellees argue that the Melancon appellants could only seek to suspensively appeal the judgment Rbecause the judgment arose from executory proceedings for seizure and sale. They assert that La. C.C.P. art. 2642 governs and the appellants’ devolutive appeal that was taken beyond the 15-day delay for taking a suspensive appeal requires this Court to dismiss the appeal.

La. C.C.P. art. 2642 provides that “[defenses and procedural objections to an ex-ecutory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a suspensive appeal from the order directing the issuance of the writ of seizure and sale, or both.” “A suspensive appeal from an order directing the issuance of a writ of seizure and sale shall be taken within fifteen days of the signing of the order.” Id. In this case, the appellants are not seeking an appeal from “an order directing the issuance of a writ of seizure and sale.” Rather, they are seeking an appeal from an order disbursing funds that the State paid into the registry of court for reclaiming certain oyster bed leases. Appellees interpret Article 2642 broadly and argue that the instant proceeding constitutes a defense to an executory proceeding as contemplated by the article. We disagree.

In our original opinion we concluded that through their pleadings, the Petrovich plaintiffs were in essence seeking a deficiency judgment no matter how styled. Here, the Melancon defendants were not asserting defenses and procedural objections to the executory proceeding. Compare: First Guaranty Bank, Hammond, Louisiana v. Baton Rouge Petroleum Center, Inc., 529 So.2d 834, 840 (La.1987) (The lack of authentic evidence must be asserted either by injunction or by suspensive appeal.). Furthermore, in First Guaranty Bank, supra, 529 So.2d at 843, the Louisiana Supreme Court rejected the notion that the deficiency action is a part of the executory proceeding. The Court explained: “The deficiency judgment action, although related to the executory proceeding, is established by the | ¡legislated law as a separate and independent proceeding, different in concept and purpose, involving different lands of procedure, evidence and defenses.” Therefore, despite appellees’ assertions to the contrary, the fact that the present proceeding is part of the record in the executory proceeding is of no moment as appellants are not seeking to arrest the seizure and sale. Thus, we conclude that we properly have jurisdiction of the timely devolutive appeal.

ENTITLEMENT TO PROCEEDS

Appellees argue that they are entitled to the proceeds in the registry of court because the Sheriffs deed reflects that all eight oyster leases were conveyed to the Petrovich plaintiffs. They contend that the deed can only be interpreted to convey the six remaining oyster leases along with the rights associated with the remaining two. Those rights, they argue, are the funds paid by the State for the two leases and deposited in the registry of court. In our original opinion, we thoroughly addressed and rejected this claim for recovery based on a “substitution of collateral.” We deny the application for rehearing as it applies to this ground and maintain our original opinion.

Appellees alternatively argue that there still remains collateral subject to the existing security interest. In this regard, they assert that this Court erred because it failed to take into account the provisions of La. R.S. 13:4106(B). La. R.S. 13:4106(B) provides:

B. If a mortgage or pledge affects two or more properties, movable, immovable, or both, the judicial sale of any property so affected without appraisement shall not prevent the enforcement of the | ¡¡mortgage or pledge in rem against any other property affected thereby.

In Bankers Trust v. Smith, 629 So.2d 525 (La.App. 5 Cir.1993), writ denied, 94-124 (La.3/11/94), 634 So.2d 393, the debtors argued that the bank could not seek a deficiency judgment because La. R.S. 13:4106 barred an in rem judgment in that case. This Court concluded that the record in that case supported the trial judge’s finding that La. R.S. 13:4106 did not bar an in rem judgment. We acknowledged that the Deficiency Judgment Act provides that a deficiency judgment cannot be obtained against a debtor when, to satisfy a debt, the debtor’s property is seized and sold without appraisal. 629 So.2d at 527. However, under Section 13:4106(B), the Deficiency Judgment Act did not bar execution on two or more things pledged and mortgaged to secure the same debt. Id. This Court found that the trial court made a factual determination regarding whether Subsection (B) was triggered and we found no manifest error. Thus, the Court concluded that the exception in Subsection (B) applied to the facts of that case. 629 So.2d at 528-29.

This case is distinguishable. Appellees assert for the first time in the application for rehearing that the exception under Subsection (B) applies. However, appel-lees did not assert this exception in the proceedings below and the trial court was never asked to determine whether the exception in Subsection (B) applied to the facts in this case. Thus, we decline to make that determination in the first instance.

DECREE

For the foregoing reasons, we maintain our earlier decree, reversing the trial court judgment and we remand for further proceedings. We grant the application for rehearing in part and amend our decree to read as follows:

The July 5, 2007 judgment granting the Petrovich motion to withdraw funds deposited in the registry of the court, namely 17$105,719.30 plus accumulated interest, and denying the Melancon exceptions is hereby reversed. Accordingly, judgment is hereby rendered ordering that the Petrovich plaintiffs deposit the sum of $105,719.30, plus accumulated interest into the registry of court within 10 days of this partial grant of rehearing. This matter is remanded for further proceedings, consistent with the views expressed herein.

In all other respects, the application for rehearing is denied.

REHEARING GRANTED IN PART AND OTHERWISE DENIED; SEPTEMBER 30, 2008 DECREE AMENDED; ORIGINAL SEPTEMBER 30, 2008 JUDGMENT MAINTAINED AS AMENDED.

      . Appellees also argue in a footnote that the appeal is moot. Appellees rely on two cases where the court concluded the appeals were moot. See: Greater New Orleans Homestead Ass’n v. Washington Square Co., 514 So.2d 251 (La.App. 5 Cir.1987), writ denied, 516 So.2d 372 (La.1988) and Ascension Sav. and Loan Ass’n v. Champagne, 447 So.2d 1241 (La.App. 5 Cir. 1984), writ not considered, 449 So.2d 1353 (La.1984). In those cases the appellants appealed the denial of their peti-dons for injunctive relief seeking to enjoin a seizure and sale. The appellants took devolu-tive rather than suspensive appeals. However, the properties had since been sold, thereby rendering moot the appeals from the denial of the injunctive relief. We find these cases are inapposite because the appellants in this case are not seeking review of a judgment that denies injunctive relief seeking to arrest the seizure and sale of property.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    James FINCH v. ATC/VANCOM MANAGEMENT SERVICES LIMITED PARTNERSHIP d/b/a Jefferson Transit Westside; Discover Property & Casualty Insurance Company; Parish of Jefferson and Jefferson Parish Streets Department.
    No. 09-CA-483.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Lawrence J. Centola, III, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Stephen N. Elliott, William D. O’Regan, IV, Ann B. Wootten, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12This is a personal injury matter. Plaintiff James Finch (“Finch”) appeals a judgment of the trial court dismissing his claims in favor of defendants ATC/Vancom Management Services Limited Partnership d/b/a Jefferson Transit Westside (“Jefferson Transit”), Discover Property & Casualty Insurance Company (“Discover”), and Natalie Jones (“Jones”). Finch specifies as error the trial court’s refusal to admit a letter into evidence. Finch further alleges that the trial court’s refusal to admit the letter into evidence is reversible error. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This matter was tried before a jury over three days. Finch called nine witnesses on his behalf. The defendants called seven. However, Finch chose to designate a very small portion of the record for this Court’s review. See La. C.C.P. art. 2128 (the appellant may “designate in a writing filed with the trial court | ¡¡such portions of the record which he desires to constitute the record on appeal”). Accordingly, almost none of the procedural history and underlying facts of this matter are contained in the record before this Court. The only relevant documents contained in the designated record are trial court minutes, Finch’s petition for damages, the trial court’s judgment, the motion for appeal, the transcription of Aaron Jordan’s (“Jordan”) trial testimony, the transcription of Orlandez Pierre’s (“Pierre”) trial testimony, and various exhibits.

Finch’s petition for damages alleges that on August 3, 2005, he was a passenger on a Jefferson Transit bus. The petition further alleges that the bus struck a large piece of concrete, which caused Finch to be violently thrown from his seat and sustain severe injuries. According to Finch, the bus was traveling at an excessive rate of speed when the accident occurred. Jefferson Transit was alleged to have caused Finch’s injuries by its failure to maintain and failure to properly train its employees. Discover was alleged to be Jefferson Transit’s liability insurer. Jones, the driver of the bus, was not named as a defendant in the July 6 petition. There are no supplemental and amending petitions in the record before this Court.

Trial in this matter began on January 5, 2009. Jordan testified that at the time of the accident, he was employed as an insurance adjuster by Frontier Adjusters. Jordan further testified that Jones was driving the bus at the time of the accident. Jordan visited the scene of the accident shortly after the accident had occurred and made a report. Jordan also received several documents from Hertz Claims Management, the insurer of the bus. Finch’s counsel attempted to ask Jordan about a letter he received from Charlie Davis, a Hertz Claims Management adjuster (the “Hertz letter”). The relevant portion of the Hertz letter provides as follows:

\ ¿COVERAGE: $500,000 CSL
INVESTIGATION: Accident will not require much investigation. The accident basically speaks for itself. We will secure damage information, statements, and scene photos.
LIABILITY: Based on investigation, liability is adverse against our driver. It is my opinion that we owe passengers claims. However, there is possibility of some comparative with regards to the pot hole in the road.
ACTION PLAN: We are waiting on all injury information to come in for evaluation. Contact will be made with attorney of any represented claimant. This one speaks for itself. We should prepay [sic] to pay this one.

Defense counsel objected to the Hertz letter as inadmissible hearsay. Counsel for Finch argued that the Hertz letter was excepted from the hearsay rule as a record of a regularly conducted business activity or, alternatively, as a statement against interest. The trial court agreed with the defense and refused to admit the Hertz letter into evidence. Finch’s counsel proffered the letter. On January 7, 2009, the jury returned a verdict in favor of the defendants. The trial court thereafter signed a judgment dismissing Finch’s claims at his cost. Finch filed this timely appeal.

SPECIFICATION OF ERROR

Finch does not deny that the Hertz letter is hearsay. However, Finch contends that the trial court should have admitted the letter as a statement against interest pursuant to La. C.E. art. 804(B)(3) or, alternatively, as a record of a regularly conducted business activity pursuant to La. C.E. art. 803(6). Finch additionally contends that the trial court’s failure to admit the Hertz letter into evidence was prejudicial and requires a new trial.

|5Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801. Hearsay is inadmissible at trial unless one of the exceptions in the Code of Evidence applies. La. C.E. art. 802. Moreover, the trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion. BellSouth Telecomm., Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844.

Statements Against Interest

If the declarant is unavailable as a witness, “[a] statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest” is admissible hearsay. La. C.E. art. 804(B)(3). A declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. La. C.E. art. 804(A). This includes situations in which the declarant “is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.” La. C.E. art. 804(A)(5). The proponent of the statement bears the burden of proving the unavailability of the declarant. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), abrogated on other grounds by Crawford, v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In his brief to this Court, Finch suggests that “commentators to La. C.E. art. 804 state that a witness is unavailable if he resides out of state.” Finch cites to a treatise on Louisiana evidence, which provides “[l]egal unavailability of a witness may come about because of illness (both mental and physical), physical infirmity, residence outside the state, or loss of memory.” See Bobby Marzine Harges and ^Russell L. Jones, Louisiana Practice; Louisiana Evidence § 804. According to Finch, if a declarant resides outside of Louisiana, he is necessarily and automatically “unavailable” for the purposes of La. C.E. art. 804(A)(5). Thus, Finch’s argument follows, the proponent of the statement need not demonstrate any effort to secure the declarant’s availability at trial.

This premise is singularly meritless for three reasons. First, the express language of La. C.E. art. 804(A)(5) requires a party to attempt “to procure [the declar-ant’s] attendance by process or other reasonable means” before using the declar-ant’s statement against interest at trial. Here, there is no indication that Finch attempted to procure Charlie Davis’s or Hertz Claims Management’s attendance at trial.

Second, the Louisiana Supreme Court has long held that a declarant is not unavailable for the purposes of La. C.E. art. 804(A)(5) unless the proponent of the statement has made a diligent and good faith effort to obtain the declarant’s presence at trial. Driscoll v. Stucker, 04-0589 (La.1/19/05), 893 So.2d 32, 50 (citing Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968)).

In Driscoll, a scrub technician allegedly told a nurse that he had helped the plaintiff perform cosmetic surgical procedures outside of the plaintiffs duties and employment. Driscoll, 893 So.2d at 49. The defendant contended that the scrub technician’s statements to the nurse were statements against interest by an unavailable witness and were therefore admissible hearsay. Id. The Supreme Court found that the defendant had not met his burden of proving that the scrub technician was unavailable. The Court reasoned:

In the present case, [the defendants] merely assert [that the scrub technician] was unavailable to testify. There is no showing in the record to indicate they made any effort, much less a diligent and good faith effort, to obtain his presence at trial. Thus, they have failed to show they may avail themselves of this exception to the hearsay rule.

| r,Id. at 50 (emphasis added).

This has been in the jurisprudential rule in Louisiana for more than 70 years. See Citizens Bank & Trust Co. v. Jones, 167 So. 511, 514 (La.App. 2 Cir.1936) (“[w]e conclude that the former testimony admitted in this case was erroneously admitted for the reason that it was not shown by plaintiffs that the witnesses and their testimony, used in the former trial, could not have been secured had the proper diligence been used.”).

Finally, several legal commentators suggest that Finch’s argument is erroneous. The treatise on Louisiana evidence cited by Finch states unequivocally “[i]n the case of an absent witness, the offering party must demonstrate that he exercised due diligence in attempting to procure the presence of the witness” before the witness can be considered unavailable. See Bobby Marzine Harges and Russell L. Jones, Louisiana Practice; Louisiana Evidence § 804. Another influential treatise on evidence states that “[t]he proponent of the hearsay statement must ... establish that the witness cannot be found.” 2 Ken-NETH S. BROUN, ET Ah., McCORMICK ON EVIDENCE § 253, at 170 (6th ed.2006)

Here, Charlie Davis drafted the Hertz letter, thus he is the declarant of the letter. See La. C.E. art. 801(B). There is absolutely no evidence in the record before us that Finch made any effort to secure the presence of Charlie Davis at trial. In order to utilize the Hertz letter as a statement against interest, Finch must prove that Charlie Davis was unavailable. He has not met that burden.

Accordingly, we conclude that the failure of the trial court to admit the Hertz letter as a statement against interest was not manifestly erroneous.

Regularly Kept Business Records

|gFinch also contends that the Hertz letter is admissible as a regularly kept business record. La. C.E. art. 803(6) provides that “records of regularly conducted business activity” are not excluded by the hearsay rule if the proponent can establish the record was (1) made at or near the time by, or from information transmitted by, (2) a person with knowledge, (3) made and kept in the course of a regularly conducted business activity, and (4) that it was the regular practice of that business activity to make and to keep the information. See also National Information Services, Inc. v. Gottsegen, 98-528 (La.App. 5 Cir. 6/1/99), 737 So.2d 909, 914. La. C.E. art. 803(6) is substantially derived from its federal counterpart Fed.R.Evid. 803(6).

The party who seeks to introduce written hearsay evidence pursuant to La. C.E. art. 803(6) must authenticate it by a qualified witness. However, the witness laying the foundation for admissibility of business records need not have been the preparer of the records. See, e.g., Western American Specialized, Transp. Services, Inc. v. Chibberton, 97-102 (La.App. 5 Cir. 5/28/97), 695 So.2d 1059, 1062 (citing Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122, 129 (La.App. 2 Cir.1990)). Rather, La. C.E. art. 803(6) permits the custodian of the record “or other qualified witness” to establish the essential foundational predicate. See also State v. Marston, 2000-0589 (La.3/16/01), 780 So.2d 1058, 1063. A qualified witness only need “have familiarity with the record-keeping system” of the entity whose business records are sought to be introduced. State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291, 327. If the foundation witness cannot vouch that the requirements of the Code of Evidence have been met, the evidence must be excluded. Id. See also State v. Borne, 96-1130 (La.App. 4 Cir. 3/19/97), 691 So.2d 1281, writ denied, 97-1021 (La.10/3/97), 701 So.2d 197.

|9In this case, Finch did not lay the proper foundation for admission of the Hertz letter as a business record. At trial, Jordan testified that he kept various adjusting records in the normal course of working for Frontier Adjusters. However, the Hertz letter was created by Hertz Claims Management, not Frontier Adjusters. There is no indication in the record that Jordan was familiar with the record keeping procedures of Hertz Claims Management. There is no indication in the record before us that any witness testified as to the record keeping procedures of Hertz Claims Management. The record keeping practices and the business activities of Frontier Adjusters are irrelevant to whether a document created by a Hertz Claims Management employee should have been admitted into evidence as a business record. Compare Juniors, 915 So.2d at 327 (“However, when the drug test form from the independent laboratory was presented to the witness for identification, she acknowledged that report was generated by the independent laboratory ... Further, she was unable to explain how the notation “Positive marijuana” came to be handwritten on the bottom of the form ... Under such circumstances, it is clear the necessary predicate was not established for admissibility of the ... form under the business records exception”) with State v. Gordy, 2007-1032 (La.App. 3 Cir. 3/12/08), 981 So.2d 45, 48 (holding an insurance report generated by a Progressive Insurance agent based in Texas admissible as a business record because the Progressive insurance agent based in Louisiana who received the report testified about the recordkeeping practices of Progressive).

Accordingly, we conclude that the failure of the trial court to admit the Hertz letter as a regularly conducted business record was not manifestly erroneous.

| ^Harmless Error: Cumulative Testimony

Finch contends that the trial court’s refusal to admit the letter into evidence is reversible error and mandates a new trial. We disagree. Even if we were to find that the trial court erred in failing to admit the Hertz letter, the error was harmless because the letter was cumulative of other evidence contained in the record.

The effect of an erroneous evi-dentiary ruling is that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” La. C.E. art. 103. The admission of hearsay testimony is subject to the harmless error analysis. Brooks v. Southern University and Agricultural and Mechanical College, 2003-0231, p. 11 (La.App. 4th Cir.7/14/04), 877 So.2d 1194, 1203, writ denied, 2004-2246 (La.11/19/04), 888 So.2d 208. Moreover, where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is harmless. See, e.g., Everhardt v. Louisiana Dept. of Transp. and, Development, 2007-0981 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1048 (citing Kaufman v. Sewerage & Water Bd. of N. O., 99-1942, p. 15 (La.App. 4 Cir. 5/3/00), 762 So.2d 644, 653).

In this case, after Finch designated the record for appeal, the defendants filed a motion to supplement the record with Pierre’s testimony. At trial, Pierre testified that he was Jefferson Transit’s operation manager at the time the accident occurred. He filed a report about this accident with the Accident Review Board. The Accident Review Board decided to suspend Jones for a period of 10 days. The Board sent Pierre a letter informing him of its decision. The letter was introduced into evidence. It states, in pertinent part:

On August 3, 2005 Ms. Jones was involved in an accident. The accident was viewed by the accident review board and found to have been preventable. This is Ms. Jones’s second preventable accident within a 30 day period.

| T1 (emphasis added)

Similarly, a Supervisor Accident/Incident Report introduced into evidence indicates that Jones told her supervisor that she drove the bus over a crack in the street, blew two rear tires, panicked, and accidentally pressed the accelerator rather than the brake. A Collision/Injury Report indicates that the accident took place during good conditions and that Jones drove over a crack in the street and blew two rear tires. Thus, the jury heard the same information that the Hertz letter would have provided. See by analogy Varnell v. Service Merchandise Co., Inc., 613 So.2d 1042, 1043-44 (La.App. 3 Cir.1993) (holding that the trial court did not err in excluding the defendant’s regulations and safety manual into evidence when the trial court had already allowed extensive testimony on safety standards and the manual from the plaintiffs expert); Hyatt v. Raggio, 1999-887 (La.App. 3 Cir. 2/2/00), 757 So.2d 773, 780-81 (holding that the trial court did not abuse its discretion in excluding expert testimony offered by patient in medical malpractice case, where expert would have offered essentially same type of testimony as patient’s other witnesses). We conclude that even if the trial court erred in refusing to admit the Hertz letter, such error was harmless.

Accordingly, this specification of error has no merit.

CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Finch.

AFFIRMED.

      . In its brief to this Court, the defendants contend that the Hertz letter should not have been admitted because its prejudicial effect substantially outweighs its probative value. See La. C.E. art. 401; La. C.E. art. 403. Because we find that the Hertz letter was inadmissible as a statement against interest or business record and that it was cumulative of other evidence in the record, we need not address this argument.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Jeremy Johntay FREEMAN, Appellant.
    No. 44,980-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 27, 2010.
    Rehearing Denied Feb. 25, 2010.

      Louis Granderson Scott, for Appellant.
    William R. Coenen, District Attorney, Penny Douciere John McIntosh Lancaster Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   GASKINS, J.

| ,The defendant, Jeremy Johntay Freeman, was charged with possession of a firearm by a convicted felon, illegal carrying of weapons (felony grade), and possession of a Schedule II controlled dangerous substance (CDS), i.e., cocaine. Pursuant to State v. Crosby, 338 So.2d 584 (La.1976), he pled guilty to possession of a firearm by a convicted felon and possession of cocaine, reserving his right to appeal the trial court’s denial of his motion to suppress. The charge of illegal carrying of weapons was dismissed. He received agreed-upon concurrent sentences of 10 years at hard labor without benefit of parole, probation or suspension of sentence on the firearm charge and five years at hard labor on the drug charge. The defendant appeals the trial court’s ruling on his motion to suppress. We affirm.

FACTS

On the morning of April 13, 2007, the deféndant was driving his gray Ford Crown Victoria through the village of Forest, Louisiana. He was accompanied by an unidentified female. James Smith, the village’s chief of police, clocked the defendant driving about 59 mph in a 45-mph zone. At about 8:55 a.m., Chief Smith stopped the defendant’s vehicle for speeding and asked for his license and registration. When the chief called in the license and registration to the dispatcher of the West Carroll Sheriffs office, he was informed that the defendant had outstanding warrants for aggravated assault and simple battery. He was instructed to hold the defendant until a deputy was sent to take him into custody.

12Peputy Christopher Varner received a call at 9:05 a.m. to go to Forest to arrest the defendant on the outstanding warrants. He arrived on the scene at 9:15 a.m. He placed the defendant under arrest and put him in his patrol car. Mindful of the defendant’s reputation for drug trafficking, Deputy Varner asked the defendant for permission to search his vehicle. The defendant refused.

Deputy Varner requested that Deputy John Warner, a narcotics officer, be sent to the scene with his drug dog, Bella. Deputy Warner received the request at 9:20 a.m. He and Bella arrived at 9:25 a.m. Deputy Warner walked around the car. Although he did not see any drugs in plain view inside the vehicle, he smelled an odor he recognized as marijuana emanating from the partially open driver’s window. When Bella walked around the car, she alerted to the driver’s side door.

After Deputy Warner informed him that Bella had alerted, Deputy Varner searched the defendant’s car. In the center console, he discovered a plastic container with a green leafy substance. Subsequent laboratory analysis determined that the contents of the container included marijuana and cocaine. Additionally, a semiautomatic High Point nine-millimeter pistol was found wrapped in a rag or towel; the weapon was located behind the passenger’s seat on the floorboard, within reach of the driver of the vehicle.

The defendant, who had prior felony convictions for illegal use of weapons and carrying a firearm on a school campus, was charged with |spossession of a firearm by a convicted felon, illegal carrying of weapons (felony grade), and possession of cocaine.

The defendant filed a motion to suppress the evidence found during the warrantless search of his vehicle. Following a hearing, the trial court denied the motion. After the U.S. Supreme Court rendered its opinion in Arizona v. Gant, — U.S. -, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the defendant sought reconsideration of the trial court’s ruling on the motion to suppress. Upon reconsideration, the trial court again denied the motion.

Pursuant to a Crosby plea, the defendant pled guilty to possession of a firearm by a convicted felon and possession of cocaine while reserving his right to appeal the denial of his motion to suppress. The charge of illegal carrying of weapons was dismissed. The defendant received agreed-upon sentences of 10 years at hard labor without benefits on the firearm charge and five years at hard labor on the cocaine charge, the sentences being ordered to run concurrently. The state also agreed to not file a multiple offender bill against the defendant or pursue a May 2008 charge of cocaine distribution.

On appeal, the defendant challenges the trial court’s denial of his motion to suppress the evidence found in the search of his car, particularly in light of the Gant decision.

LAW

The right of every person to be secure in his person, house, papers, and effects against unreasonable searches and seizures is guaranteed by the | ,tFourth Amendment to the United States Constitution and Article I, § 5, of the 1974 Louisiana Constitution. It is well settled that a search and seizure conducted without a warrant issued on probable cause is per se unreasonable unless the warrantless search and seizure can be justified by one of the narrowly drawn exceptions to the warrant requirement. State v. O’Neal, 44,067 (La.App.2d Cir.4/8/09), 7 So.Sd 182.

When the constitutionality of a warrantless search or seizure is placed at issue by a motion to suppress the evidence, the state bears the burden of proving that the search and seizure were justified pursuant to one of the exceptions to the warrant requirement. La. C. Cr. P. art. 703(D); State v. O’Neal, supra.

This court reviews the district court’s ruling on a motion to suppress under the manifest error standard in regard to factual determinations, as well as credibility and weight determinations, while applying a de novo review to findings of law. State v. Collins, 44,248 (La.App.2d Cir.5/27/09), 12 So.3d 1069.

In order to stop an individual in his automobile without a warrant, a police officer must have a reasonable suspicion that the individual has committed, or is about to commit, an offense, including the violation of a traffic regulation. State v. Pag-gett, 28,843 (La.App.2d Cir.12/11/96), 684 So.2d 1072.

One exception to the warrant requirement is when there is probable cause to search an automobile. The warrantless search of an automobile is not unreasonable if there is probable cause to justify the search, without | r,proving additional exigency, when the automobile is readily mobile because there is an inherent risk of losing evidence. Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999); State v. Brown, 42,188 (La.App.2d Cir.9/26/07), 966 So.2d 727, writ denied, 2007-2199 (La.4/18/08), 978 So.2d 347.

If the police officer has a specific suspicion of criminal activity, he may further detain the individual or the property while he diligently pursues a means of investigation likely to quickly confirm or dispel the particular suspicion. United States v. Shatpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); State v. Stowe, 44,815 (La.App.2d Cir.10/28/09), 25 So.3d 945.

There is no bright line rule for when a detention lasts too long. Each instance must be assessed in view of the surrounding circumstances. State v. Arrington, 556 So.2d 263 (La.App. 2d Cir.1990); State v. Stowe, supra.

An officer’s detection of the odor of burnt marijuana emanating from the defendant’s vehicle may provide probable cause for the search of his vehicle. See State v. Johnlouis, 2009-235 (La.App. 3d Cir.11/4/09), 22 So.3d 1150.

A canine sniff test by a well-trained narcotics detection dog does not constitute a search within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Paggett, supra. Once the dog alerts on the door panels, the officers have probable cause to search a vehicle without first obtaining a warrant. State v. $107,156 U.S. Currency Seized from Marlin Morton and Richard Woods, 41,090 (La.App.2d Cir.6/30/06), 935 So.2d 827, writ denied, 2006-2271 (La.11/22/06), 942 So.2d 557.

In Arizona v. Gant, supra, Gant was arrested for driving with a suspended license, handcuffed, and placed in the back of a patrol car. The police then searched his car and found a bag of cocaine in the pocket of a jacket on the backseat. Gant was charged with two drug offenses; his motion to suppress the drugs found in his car was denied, and he was convicted on both charges. The Arizona Supreme Court found the search was unreasonable. The U.S. Supreme Court granted the state’s petition for certiorari and affirmed. It held:

[C]ircumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, ... the offense of arrest will supply a basis for searching the passenger compartment of an arres-tee’s vehicle and any containers therein.
Police may search a vehicle incident to a recent occupant’s arrest only if the ar-restee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. [Citations omitted.]

DISCUSSION

The defendant was initially stopped by Chief Smith at 8:55 a.m. after he observed the defendant speeding. As Chief Smith had reasonable suspicion that the defendant had committed an offense, i.e., a violation of a traffic regulation, the initial stop was reasonable. See State v. Paggett, \ .¡supra. Upon learning that the defendant had outstanding warrants, Chief Smith properly detained him until Deputy Varner arrived. After he arrived at 9:15 a.m., Deputy Varner placed the defendant under arrest based upon the warrants and put him in his patrol car.

Because other officers had previously informed him of the defendant’s reputation for involvement in the narcotics trade, Deputy Varner had a suspicion that the defendant was involved in other criminal activity. He acted swiftly to confirm or dispel that suspicion. Deputy Varner asked the defendant for permission to search his car. After the defendant refused to allow him to search his vehicle without a warrant, Deputy Varner immediately sent for Deputy Warner and Bella, his narcotics dog. They arrived within five minutes. In the meantime, the defendant, a reputed drug trafficker who was already under arrest for offenses of domestic violence, remained in custody in Deputy Var-ner’s patrol car, awaiting transport to the jail. Unlike the defendants in many cases involving warrantless searches of automobiles, there was never an issue of him being free to leave prior to the search or unreasonably detained.

The evidence presented at the hearing on the motion to suppress indicated that the car was stopped on the side of a two-lane state highway inside the municipal limits of Forest. The policy for the sheriffs office was such that this car would not have been impounded. Deputy Varner testified that had the drug dog not been able to come to the site, the car would have been released, mostly likely to the defendant’s female companion. | ¡/Therefore, exigent circumstances existed due to its location and mobility requiring an immediate search of the vehicle.

After Deputy Warner smelled marijuana coming from the partially open window of the defendant’s car and Bella alerted on the driver’s door, the officers had probable cause to search the vehicle. See State v. Johnlouis, supra, and State v. Paggett, supra. We note that the elapsed time between the initial stop and the warrant-less search of the defendant’s car was only approximately 30 minutes.

This is not a case that falls under the Arizona v. Gant decision. This was not a search incident to arrest that involves the “reaching distance” rule. In our ease, the traffic stop and the arrest of the defendant on the outstanding warrants were legal. The detention of the vehicle was reasonable, and its search was based on probable cause pursuant to the officer smelling marijuana and the dog alerting for drugs.

Based on the above, we find that the officers acted properly and that the war-rantless search of the defendant’s vehicle was reasonable and lawful. The trial court’s ruling on the motion to suppress is affirmed.

CONCLUSION

Finding no error in the trial court’s denial of the motion to suppress, we affirm the defendant’s convictions and sentences.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, PEATROSS and MOORE, JJ.

Rehearing denied.