author: J^DREW, J. | ¶ STEWART, J.,

text:
    Debbie HOLT, Plaintiff-Appellant, v. BETHANY LAND COMPANY and Darel Cupp, Defendants-Appellees.
    No. 36,888-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2003.
    Rehearing Denied May 8, 2003.

      Larry Steven Butler, Bossier City, William Jarred Franklin, for Appellant.
    Richard E. Hiller, Shreveport, for Ap-pellees.
    Before BROWN, STEWART and DREW, JJ.
   J^DREW, J.

Debbie Holt, plaintiff, appeals from a judgment denying her demand, for damages arising from the allegedly wrongful eviction of her paintball business. For the following reasons, we affirm in part and reverse in part.

FACTS

On February 19, 1999, plaintiff and Bethany Land Company, Inc. (Bethany) executed a written agreement captioned “Option to Purchase” pertaining to an unimproved 40-acre tract of land in Caddo Parish. The option period was for one year beginning March 1, 1999. Holt agreed to pay beginning April 1, 1999, $568.00 per month for 12 months, at the first of each month, without being more than 15 days late twice or more than 30 days late once. In the alternative, Holt was to pay $6,000.00. If Holt violated the agreement by being late as provided in the Option to Purchase, she was to be considered in default and to have forfeited payments up to that point. If Holt timely made payments for this 12-month period, Bethany agreed to execute an act of credit sale within 10 days and sell the property to Holt for $56,000.00 payable at $568.00 per month (9% interest for 180 months) to the vendor. The payments made were to be credited against the purchase price. The contract contained no provisions giving Holt the right to occupy the land for the initial 12-month period.

The contract was subsequently amended to provide for a lower purchase price ($44,-000.00) and monthly payment ($446.28) in exchange for which Holt would not be entitled to the construction or maintenance of a road or water line. This second contract did not contain the provision allowing one 15-days-late payment and no 30-days-late payments.

| ¡.Holt began operating a paintball field on the property and gradually added improvements to make the property suitable for that use. During the course of the first year, Holt had problems with various persons, including hunters and oil company employees, entering upon the property and damaging access roads. In an effort to keep these unauthorized persons off of the property, attorney Richard Hiller wrote letters to several of the persons. Hiller was the attorney for Bethany and Darel Cupp, the principal and 100% owner of Bethany. In a July 12, 1999 letter, Hiller wrote: “I represent Debbie Lou Holt with respect to the property referenced above ... Holt is presently leasing this property from Bethany Land Company....” In an August 11, 1999 letter, Hil-ler wrote, “... I have been informed by the lessee, Debbie Holt, that....” Holt was copied on the August letter. She was also copied on other letters that do not refer to her as the lessee but indicate generally that she is the occupant of the property. Hiller billed Holt for these letters.

A dispute arose regarding the timeliness of Holt’s payments. Cupp decided that the allegedly tardy payments were a breach of the option to purchase agreement, and in April 2000, Hiller wrote to Holt’s attorney and stated that the letter constituted the five-day notice to vacate required by Louisiana law. In May, 2000, Hiller sent Holt’s attorney two letters. In the first letter, he demanded payment of $800 because “[Holt] has been possessing the property for two (2) months, March and April 2000, without paying due compensation .... Failure to [pay] will result in the institution [3of eviction proceedings.” A second letter in which he stated that his earlier letters were in error insofar as they implied that “this was a lessor/lessee situation requiring an eviction notice and proceeding. Your client was simply acquiring an option to purchase the property with her monthly payments, nothing more— nothing less.” In early May 2000, Cupp padlocked the entrance to the property and refused to allow Holt regular access. Holt’s paintball business failed thereafter.

Holt then sued Cupp and Bethany seeking specific performance of the contract and damages for wrongful eviction, attorney fees, mental anguish and loss of earnings from her paintball and carpet businesses (the latter allegedly closed due to “time ... resolving this matter”). By this time, Cupp had caused Bethany to transfer the land into Cupp’s name. Cupp answered the lawsuit and filed a reconven-tional demand seeking damages for restoring the property to its original condition and for the loss of marketability caused by the litigation.

Holt filed a motion to disqualify Hiller as Cupp’s attorney because Hiller had represented Holt previously both in writing letters pertaining to the property and in an unrelated civil matter. Cupp opposed the motion and urged that Hiller was protecting Cupp’s interest by keeping trespassers off of the property. The trial court denied the motion to disqualify Hil-ler and this court denied Holt’s application for supervisory review on the limited showing made in the application. When the matter came for trial, Holt indicated her intention to call Hiller as a witness. However, Hiller was not listed on Holt’s witness list and the trial court refused to allow the attorney |4to be a witness. Holt’s attorney submitted a proffer consisting of his own opinion about what would have been Hiller’s testimony; specifically, that Hiller represented Holt in efforts to displace the trespassers and that Hiller did not advise Holt of her right to proceed against Cupp due to the interruption in Holt’s possession of the property.

Regarding Holt’s allegedly tardy payments, the record reflects that Holt paid more than the required amount each month of her obligation and that she paid at least three of the payments after the 15th day of the month. Cupp said that he determined that Holt was in default after her November payment was late but that he did not return her subsequent checks because “she was still using the property.” The trial court observed that the sum of the overpayments exceeded one month’s payment by the due date of the second late payment and concluded that the late payments were, under the terms of this particular contract, excusable. That conclusion led the court to grant specific performance of the contract in favor of Holt. That portion of the trial court judgment is not at issue on appeal.

Holt’s appeal concerns the trial court’s rejection of her damages allegedly resulting from Cupp’s closing of the property to Holt. Holt testified that during the negotiations with Bethany, she told Cupp that she intended to use the property as a paintball field, and she said that he gave her “permission” to do so. She testified:

A: Those three times that we come out and looked at the land, we explained to him we wanted it for a paintball field. Upon signing the contract, he said I had access to the land. He even said — I’ve got it in my paperwork someplace, I’ve go to find it — either you or Robin signed for Bethany Land Company for me to put electricity out there. Obviously if we had electricity, |Bthat meant I was occupying the land. He knew right off the bat we was doing paintball, because he come out on numerous occasions.
Q: And is it your testimony that if Mr. Cupp on behalf of Bethany Land Company told you one day you could use the property, could that be rescinded the next day, in your mind?
A: Not in my mind, no. I didn’t have an attorney, and I was told the contract was as good as gold, basically, and the way it was led to me was that I had possession of the land. I could keep the land for twelve months, make my payments. Once the payments were met, then it would be deeded over to me. Again, I’m not an attorney, so I guess I didn’t understand the lingo.
Q: I see. So it was your understanding that when Mr. Cupp permitted you to go on the property, that was a twelvemonth contract; correct?
A: Yes, sir, I assumed. He even told me I could move my mobile home out there if I wanted to.

On redirect examination, Holt testified about the 1999 letters from Hiller (pp. 200-201):

Q: Had you seen these letters?
A: Yes, sir.
Q: Did they lead you to believe you had a lease?
A: Well, that, and along with verbal conversations, yes, sir.
Q: And you referred to it as your property because you felt like it was your property?
A: Well, I was making the payments, and I felt is was going to be mine, just like if you’re buying a car and you’re making the payment, it’s your car.

Cupp testified that the arrangement with Holt was not a lease.

A: But let me point out one thing that there may have been another misunderstanding about. Holt never at any time had any legal right on that property. She bought an option to purchase, and that was it. She never |fihad a lease. She never had any right to step foot on the property. She asked me if she could use it to play paintball games, and I told her she could, and we never discussed anything further than that. But as far as a legal right, she had absolutely none. There’s none stipulated in that option agreement.
Q: So you were just letting her hang out on your property for free?
A: She asked me, she said, “I’m getting involved in paintball.” She said “Do you mind if some of us, you know, friends of mine come out here and play paintball on the weekends?” I said, “I have no objection.”
Q: You didn’t know she was running a business out there, sir?
A: She told me she was charging, yes, but I still didn’t object to it. But that didn’t give her the right to use the property.
Q: You said she could do it. That gives her the right to do it.
A: I permitted her to do it, but she had no right to do it. I never guaranteed her she could continue to do it. It was a permissive thing.
Q: You gave her permission—
A: I gave her permission.
Q: —to occupy the property?
A: I gave her permission. I gave her permission to use the property, to come out and be on the property, but she had no legal right to use the property.

He further testified:

Q: Did you ever indicate to Holt that she was leasing the property?
A: No, because that was never in my mind that she was leasing it.
Q: Did you ever lead her on to believe that she was?
A: No.

[7Holt’s fiancee, David Waters, testified about the operation of the paintball business and that it would cost from $2,500 to $3,000 to ready the property for paintball again. Economist Dr. Harold Christensen estimated that Holt had suffered between $30,000.00 and $32,000.00 in lost revenues due to the closing of her business.

After hearing the evidence, the trial court granted specific performance of the option contract in favor of Holt, finding that she had satisfied the terms of the contract. However, the court denied Holt’s request for damages, finding that “Any possession that was granted, rather (sic) it’s verbal or inferred from the agreement, was gratuitous. As a result, there is no warranty of peaceful possession as might be found either in a contract regarding a deed or a contract regarding a lease.” The court also denied Cupp’s re-conventional demand. Holt now appeals.

DISCUSSION

Holt urges that the trial court erred by not awarding her damages for Cupp’s “bad faith” refusal to perform under the option contract, by not awarding her damages for breach of the “lease” agreement and the subsequent wrongful eviction and by refusing to allow her to call Mr. Hiller as a witness.

An appellate court may reverse a lower court’s factual findings when the record (1) reflects that a reasonable factual basis does not exist for the finding and (2) establishes that the finding is clearly or manifestly wrong. Stobart v. State, DOTD, 617 So.2d 880 (La.1993). If a court of appeal finds that the trial court committed reversible error of law or manifest error |8of fact, the court of appeal must determine the facts de novo from the record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

1. “Bad Faith” Refusal to Perform.

As noted, the first option contract specified that Holt would be in default of the agreement if payment due on the first of the month was over 15 days late on two occasions or more than 30 days once. The subsequent option contract did not contain the late payment provision; it specified that the payments were “due on the first day of each subsequent month.... ” There is no testimony about the reason for this change. The date of execution of this subsequent agreement is unclear, but appears to have been prior to April 1, 1999, the date of the first payment contemplated under the subsequent agreement. Holt made numerous payments after the first day of the month during the remainder of the period, and by the strict terms of the second agreement, these payments were late.

Under the terms of the revised Option to Purchase, Holt owed payments of $446.28 on the first of each month for a total of $5355.36. Evidence indicated Holt made payments as follows:

Cupp perceived Holt’s performance to be substandard under the initial phase of the agreement, since she was more than 15 days late on three occasions. This was a facially valid but factually erroneous reason to cancel the purchase agreement. Holt considered that her payments in excess of the required $466.28 eliminated any complaint about the timeliness of her payments. As the trial court noted, by September 2000, Holt was one entire payment ahead prior to the, October and November late payments. The subsequent “late payments” could reasonably have been viewed as having been made early by Holt, since the funds required to meet the October and November payments were received in September and October.

Under La. C.C. art.1996, an obligor in good faith is liable for only the damages that were foreseeable at the time the contract was made. However, an obligor in bad faith is liable for all damages, whether or not foreseeable, that are a direct consequence of the failure to perform. La. C.C. art.1997. The comments to art. 1997 state that “[a]n obligor is in bad faith if he intentionally and maliciously fails to perform his obligation.” Bad faith under art. 1997 generally implies actual or constructive fraud, not an honest mistake as to the actual rights and duties. Dorsett v. Johnson, 34,500 (La.App.2d Cir.5/9/01), 786 So.2d 897, writ denied, 01-1706 (La. 9/28/01), 798 So.2d 115. We find no error in the trial court’s denial of Holt’s assertions of bad faith.

2. Verbal or Oral Lease of Immovable Property.

As with a sale, three things are absolutely necessary to have a valid lease; ie., thing, price, and consent. La. C.C. art. 2670. Nothing in the law prohibits the verbal lease of immovable property. La. C.C. art. 2683. It is the sale of immov-ables which must be in writing. La. C.C. arts. 1839 and 2440. It has long been the law that no written agreement is necessary to perfect the lease of an immovable unless the parties contemplate that the lease will be effective only upon the execution of a written agreement. Compare, e.g., Auto-Lec Stores v. Ouachita Valley Camp. No. 10, 185 La. 876, 171 So. 62 (1936), where the supreme court reversed the sustaining of an exception of no cause of action in favor of the lessor of a building who refused to sign but nevertheless performed under a written lease agreement. If a verbal lease includes all essential elements and the parties act upon it, neither may withdraw on the pretext that the lease was not reduced to writing. Russell v. City of New Orleans, 98-0927 (La.App.4th.Cir.2/24/99), 732 So.2d 66, writ denied 99-1563 (La.10/8/99), 750 So.2d 968.

Because there is no requirement that the contract be in written form, the required elements may be proven through testimony and other corroborating circumstances. La. C.C. arts. 1832, 1846. If a lease existed, the late payment of rent would not necessarily be grounds for termination of the lease upon the proper showing. See Ergon, Inc. v. Allen, 593 So.2d 438 (La.App. 2d Cir.1992).

ii In this case there is insufficient evidence to show that Bethany or Cupp consented to the lease of the property. Holt testified that it was her understanding or assumption that she could use the property during the option year, but her testimony was insufficiently specific to prove that the parties agreed that this use would constitute a lease. Likewise, the indications in the letters from Mr. Hiller that the arrangement was a lease were made to third persons for the purpose of protecting the property owner’s right against trespass and are not substantial evidence that the parties intended a lease. The language of both the original and the amended Options to Purchase provided that Holt’s payments were the price of Holt’s obtaining the right to buy the property. Her occupancy of the land was not a part of those documents. Had the parties intended for a lease in favor of Holt to be included in the price of the option to purchase, that language could have been included in the instruments. There was no testimony as to any agreement by the parties as to a price for a lease of the property. Notwithstanding Holt’s assumption that she could occupy of the property, Cupp’s consent for her to occupy the land and the attorney’s referring to her as a lessee in certain correspondence, an essential element for a lease, price, is absent. The trial court did not err in concluding that there was no lease by which Holt occupied the property.

However, the evidence is sufficient to show that Cupp, and through him, Bethany, should have known that Holt would, and did, rely to her detriment' on Cupp’s promise to let Holt use the property. La. C.C. art.1967 provides, in part:

112A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Rebanee on a gratuitous promise made without required formalities is not reasonable.

A claim of detrimental reliance must meet three requirements: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change in position to one’s detriment because of the reliance. Miller v. Miller, 35,934 (La.App.2d Cir.5/8/02), 817 So.2d 1166, writ denied, 02-1890 (La.10/25/02), 827 So.2d 1154. Detrimental rebanee is not favored in our law and is sparingly applied as it bars the normal assertion of rights otherwise present. Id. As noted, there was no particular formal requirement in this case.

Mr. Cupp admitted that he abowed Holt to use the property for her paintball business and that he knew she was conducting a business on the premises. Cupp visited the site on several occasions while the property was being used for paintball and personally saw the improvements made to the property by Holt. It is inescapable that he knew that Holt not only would, but in fact did, rely on his promise to her that she could use the property for paintball.

Where a fact finder does not reach an issue because of an earber finding which disposes of the case, the court of appeal, in reversing the earber finding, must make a de novo determination of the undecided issues from the facts in the record. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. The reviewing court must make an award that is just and 113fair for the damages revealed by the record, where the trial court, as here, has made no award for damages. Id.

We believe that the record before us is adequate to determine the proper award of damages to Holt for the wrongful breach of promise. David Waters, Holt’s partner, testified that it would require between $2,500 and $3,000 in materials to rebuild'the playing fields given the amount of rope, plywood and wood posts needed. Holt testified that paintballs, which have a limited shelf life, were ruined while the paintball operation closed. We accept the $3,000 figure as most reabstic given the description of the property by all parties and the fact that Holt also had to replace paint supplies which ruined during the closure.

The estimate of damages for lost profits is too speculative to support an award. The economist testified in some detab concerning the data upon which his estimates were based. He did not have Holt’s tax returns for the relevant periods, and Holt’s business records for this time were very limited. Further, his corroboration of paint costs were by telephone to “Pete” at a Dallas paint company and to “some accountant” at a South Carolina paint company. There was little showing that the other data acquired about paint-bab businesses was appropriate for the type of part-time paintball business Holt operated, and the economist’s estimate of start-up costs was entirely unsupported by appropriate data. Accordingly, we believe that an award of $3,000.00 in damages will adequately compensate Holt under these particular circumstances.

|u3. Refusal to Allow Mr. Hiller to Testify.

As noted, plaintiff did not include Richard Hiller on her witness list and the trial court balanced that fact with the explanation offered for the need of Hiller’s testimony: that Hiller represented Holt in efforts to displace the trespassers and that the attorney did not advise Holt of her right to proceed against Cupp due to the interruption in Holt’s possession of the property. Holt’s attorney did not include a proffer of the witness’s testimony but, instead, gave his impression of what that testimony might have been. In the absence of a proper proffer and with the lack of a showing of the relevance of Hiller’s testimony to the issues at hand, we find no error in the trial court’s refusal to allow Holt to call Hiller as a witness.

CONCLUSION

For the above-assigned reasons, the judgment of the trial court is reversed insofar as it denied damages to Holt. We hereby award Debbie Holt $3,000.00 in damages plus judicial interest from the date of judicial demand against the defendants. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendants.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

STEWART, J., concurs with reasons.

BROWN, C.J., concurs. I also believe that there was a lease.

| ¶ STEWART, J.,

concurs.

I agree that there was no error in the trial court’s denial of Holt’s assertions of bad faith and to the award of damages. However, I disagree that there was no lease in this case. The appellant’s testimony, along with the actions of the appellees and their attorney, is enough evidence to prove there was a lease. Obviously, the price of the lease was the monthly payments being made.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, STEWART, CARAWAY, and DREW, JJ.

Rehearing denied.


source: Caselaw Access Project

author: | THIBODEAUX, Judge. hDOUCET, C.J.,

license: Public Domain

text:
    STATE of Louisiana v. Ifiany Obrinna UMEZULIKE.
    No. 02-1165.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 2003.
    Rehearing Denied May 14, 2003.

      Lester J. Gauthier, Jr., Lafayette, LA, for Defendant/Applicant, Ifiany Obrinna Umezulike.
    Michael Harson, District Attorney, Lafayette, LA, Janet M. Menard, New Iberia, LA, for Plaintiff/Respondent, State of Louisiana.
    Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX, and ELIZABETH A. PICKETT, Judges.
   | THIBODEAUX, Judge.

The Defendant, Ifiany 0. Umezulike, challenges the constitutionality of La.R.S. 13:716(B)(1), which authorizes the commissioner of the Fifteenth Judicial District to sign search warrants. He entreats us to reverse the trial court’s denial of his motion to suppress and exclude the admission of evidence seized pursuant to the search warrant.

On January 28, 2000, Commissioner Diana Simon of the Fifteenth Judicial District issued a search warrant for the vehicle and home of the Defendant. Subsequently, on October 5, 2000, a bill of information was signed, charging the Defendant with the offenses of possession of marijuana and possession of drug paraphernalia, both misdemeanors. The Defendant’s motion to suppress challenged the constitutional propriety of a court-appointed commissioner issuing a search warrant. The claim was fully litigated at an evidentiary hearing. The trial court denied Mr. Umezulike’s motion to suppress.

We reverse and grant the Defendant’s writ application. We conclude that La. R.S. 13:716(B)(1) is unconstitutional.

LAW AND DISCUSSION

Louisiana Revised Statutes 13:716 states, in pertinent part:

A. The commissioner of the Fifteenth Judicial District Court shall perform such duties as are assigned by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state.
B. (1) The commissioner shall have all powers of a district judge not inconsistent with the constitution and laws of the state of Louisiana and the United States, including but not limited to the power to administer oaths and affirmations, take acknowledgments, affidavits, and | ¡>,depositions, sign orders, act in felony and misdemeanor charges, hear preliminary motions, accept pleas in misdemeanor cases including misdemeanor cases preliminary to trial on the merits, conduct trials of misdemeanor cases, fix bail, and sign and issue search and arrest warrants upon probable cause being shown and in accordance with Paragraph (2) of this Subsection.
(2) In felony cases, the commissioner shall not try and adjudicate preliminary hearings, motions for discovery, motions to suppress, motions to quash, and trials on the merits. The commissioner may be designated and assigned to hear and determine any felony pretrial matter pending before the court, not inconsistent with the provisions of this Paragraph. The commissioner shall not adjudicate felony cases.
(3) In misdemeanor cases, the commissioner may be designated to hear, determine, and adjudicate any matter pending before the court.

(Emphasis added.)

At the hearing, the Defendant presented no witnesses. Instead, he introduced a transcript of the testimony of Judge Herman Charles Clause taken at a previous hearing on a motion to recuse on June 28, 2001. Judge Clause’s testimony revealed that he previously served as the first commissioner for the Fifteenth Judicial District Court from 1984 to 1996. He explained that the judges recommended that the commissioner post be created by the legislature in order to reduce their workload. The judges wanted to improve court efficiency by having the commissioner handle as many minor matters as possible so that the judges could devote more time to jury trials. Judge Clause acknowledged that in 1984 the judges discussed the possible constitutional problems with delegating judicial authority to a commissioner who was appointed, not elected.

The Defendant argues that the legislature does not have the constitutional authority to grant “judicial power” at the trial level to any officer other than district judges. The commissioner is granted authority by statute, but only to the | ^extent that the delegated powers of a district judge are not inconsistent with the constitution and laws of the State of Louisiana. See La.R.S. 13:716(A).

La. Const, art. 5, § 1 provides: “The judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.” La. Const, art. 5, § 22(A) provides: “Except as otherwise provided in this Section, all judges shall be elected. Election shall be at the regular congressional election.” La. Const, art. 5, § 16(A) states:

(1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage. (Emphasis added).

The statutes regarding the issuance of search warrants provide that a judge may issue the warrant. La.Code Crim.P. art. 161 provides, in pertinent part, that: “A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court....” (Emphasis added). La.Code Crim.P. art. 162 provides, in pertinent part, that: “A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” (Emphasis added).

State v. O’Reilly, 00-2864, 00-2865 (La.5/15/01); 785 So.2d 768, held that although the statute authorizing a commissioner to conduct misdemeanor trials was unconstitutional, the commissioner was a de facto officer whose acts were valid until the unconstitutionality of the statute was established. The commissioner was granted power as fohows:

La.R.S. 13:719 created the office of commissioner for the Twenty-Second Judicial District Court. The statute provides that the commissioner “shall be selected” by the judges of the Twenty Second Judicial District and shah serve at the pleasure of that court. Section 719 gives the commissioner jurisdiction over criminal matters and provides that such jurisdiction shall be concurrent with that of the judges of the Twenty Second Judicial District. The statute also provides the commissioner shall have all the powers of a judge of a district court that are not inconsistent with the constitution and laws of the state. Additionally,- La.R.S. 13:719(E)(2) provides that the powers of the commissioner may include but shall not be limited to the power to:
(a) Administer oaths and affirmations.
(b) Take acknowledgments, affidavits, and depositions.
(c) Act on felony charges through arraignment; however, the commissioner shall not accept pleas of guilty on or sign orders disposing of felony charges.
(d) Hear preliminary motions.
(e) In misdemeanor cases, conduct trials, accept pleas, and impose sentence.
(f) Preside over jury trials in misdemeanor cases.
(g) Fix bail in all matters.
(h) Sign and issue search and arrest warrants in accordance with the general provisions of law, including the requirement of showing probable cause.
(i) Find and punish for contempt of court as a district court judge.
(j) Conduct extradition hearings.
| R(k) Supervise defendants sentenced under the provisions of the drug court in accordance with the policies set down by the judges of the Twenty-Second Judicial District Court.

Id. at 773.

In O’Reilly, the defendants specifically alleged that La.R.S. 13:719(E)(2)(e) was unconstitutional as the commissioner could not be delegated the judicial authority to accept a misdemeanor guilty plea, convict after a misdemeanor trial, or impose a sentence. In finding that portion of the statute'unconstitutional, the court stated:

Our constitution provides that the judicial power of the state “is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.” La. Const, art. V, § 1. Further, the constitution requires that all judges shall be elected except for appointments to fill temporary vacancies in offices. La. Const, art. V, § 22.
In Bordelon v. Louisiana Dep’t of Corrections, 398 So.2d 1103 (La.1981), this court held that La.R.S. 13:711 (as it existed at that time), which created the offices of two commissioners of the Nineteenth Judicial District Court, was not unconstitutional since its overall scheme clearly reserved all adjudicatory power to the district judge. The court found that under the version of La.R.S. 13:713(C) in force at the time, the commissioner’s authority was limited to conducting hearings on motions and submitting proposed factual findings and recommendations for disposition to the district judge. Further, the court determined that the fundamental responsibility of the district judge to make the final decision, after the commissioner conducted a hearing and submitted proposed findings and recommendations, was insured by statutory provisions requiring the district judge to make a de novo determination of any disputed finding or recommendation. The court concluded:
Certain judicial power may be delegated without any abdication of the judge’s fundamental responsibility for deciding cases. Delegation of power to conduct evidentiary hearings and to prepare proposed findings of fact and recommendations for disposition based on the evidence and arguments is not inconsistent with the constitution and laws | fiwhich vest the judicial power in judges of enumerated, courts, as long as the judges retain the responsibility for making ultimate decisions in the case.
Id. at 1105 (citation omitted) (emphasis added).
Accepting guilty pleas, rendering verdicts after presiding over a trial, and imposing sentences are unquestionably final determinations which involve the exercise of adjudicatory power. In the instant case, the commissioner, pursuant to the authority granted by La.R.S. 13:719(E)(2)(e), exercised adjudicatory power by accepting O’Reilly’s guilty plea, finding Brewster guilty after trial, and sentencing defendants. Clearly, this subsection allows the commissioner to exercise a portion of judicial power restricted by La. Const, art. V, §§ 1 and 22 to elected judges of authorized courts. The power to make the ultimate determination in a case must be exercised by duly elected judges. The commissioner, an unelected official, cannot lawfully exercise the adjudicatory power of the state. Subsection (E)(2)(e) of La. R.S. 13:719, which authorizes a non-elected person to exercise adjudicatory power, is therefore unconstitutional.

Id. at 773-774.

The O’Reilly court further found that the defendants’ convictions and sentences were valid, applying the de facto officer doctrine. The court stated that the commissioner’s actions remained valid until his authority was attacked and found to be invalid.

In Bordelon v. Louisiana Dep’t of Corrections, 398 So.2d 1103 (La.1981), the Louisiana Supreme Court granted certio-rari to review a district court’s ruling that a commissioner of the Nineteenth Judicial District Court had the authority, pursuant to La.R.S. 13:71s, to conduct a hearing on plaintiffs motion for injunctive relief and to submit proposed findings of fact and recommendations for final disposition to the district judge. The court agreed with the trial court and found that “the overall scheme [of the statute] clearly reserves all adjudicatory power to the |7district judge, although the commissioner may determine some pretrial motions which are not dis-positive of the case.” Id. at 1104-1105. The court stated:

Certain judicial power may be delegated without any abdication of the judge’s fundamental responsibility for deciding cases. Delegation of power to conduct evidentiary hearings and to prepare proposed findings of fact and recommendations for disposition based on the evidence and the arguments is not inconsistent with the constitution and laws which vest the judicial power in judges of enumerated courts, as long as the judges retain the responsibility for making ultimate decisions in the case. Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). Under R.S. 13:713, as under the Federal Magistrates Act attacked in the Mathews case, the authority and responsibility to make the final determination remains with the district judge. The fundamental responsibility of the judge to make the final determination, after the commissioner conducts a hearing and submits proposed findings and recommendations, is insured by the requirement of a de novo determination of disputed findings or recommendations. Compare United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). (emphasis added).
We conclude that this plaintiffs constitutional due process is adequately protected by the procedure outlined in R.S. 13:713, in which the trial judge makes a de novo determination of disputed findings or recommendations and may accept, reject, or modify those findings or recommendations or require additional evidence. We accordingly reject plaintiffs contentions that his constitutional rights are impaired by the designation of a commissioner to conduct a hearing and to submit proposed findings of fact and recommendations for disposition.

Id. at 1105.

In Autrey v. Energy Corp. of America, Inc., 594 So.2d 1354 (La.App. 3 Cir.), writ denied, 596 So.2d 197 (La.1992), the trial judge ordered a Commissioner of the Fifteenth Judicial District Court to conduct an evidentiary hearing on the merits of a workers’ compensation and wrongful discharge claims and to submit to him proposed findings of fact and recommendations for the disposition of the claims. During the course of the hearing, the parties settled the workers’ compensation issues, ^leaving only the issue of wrongful discharge. After a hearing on the wrongful discharge issue, the commissioner issued a minute entry awarding the plaintiff yearly salary, vacation pay benefits, and attorney fees.

A final judgment was signed by the trial court judge. Energy appealed asserting that the trial court erred in unconstitutionally vesting adjudicatory powers in an unelected commissioner in violation of La. Const, art. 5, § 1 and La.R.S. 13:716(B). This court stated:

We find Energy’s first assignment of error, that the trial court unconstitutionally vested adjudicatory powers in an unelected commissioner in violation of La. Const. Art. 5, § 1 and La.R.S. 13:716(B) to be without merit. This is Energy’s first notice of its complaint with regard to the commissioner. Energy did not indicate in any manner, by motion or otherwise, that it objected to the court’s order directing the commissioner to hold an evidentiary hearing and make recommendations. A constitutional issue may not be raised for the first time on appeal. Succession of Savoy, 582 So.2d 298 (La.App. 3 Cir.1988).
Additionally, the commissioner did not “adjudicate” this matter. The commissioner was authorized by the trial judge to hold an evidentiary hearing and make recommendations. Delegation of power to conduct evidentiary hearings and to prepare proposed findings of fact and recommendations for disposition based upon evidence and argument is not inconsistent with the constitution and laws which vest judicial power in judges of enumerated courts, as long as judges retain responsibility for making ultimate decisions. See Bordelon v. Louisiana Dept. of Corrections, 398 So.2d 1103 (La.1981). The trial judge agreed with the findings and recommendations and signed a judgment accordingly. The trial judge clearly indicates he considered the recommendations and findings of fact of the commissioner and accepted them, (emphasis added).

Id. at 1357.

Unlike the civil cases decided under La.R.S. 13:716, the commissioner in this case did not make a recommendation that was reviewed and/or signed by an | flelected judge. The commissioner signed the search warrant. The Defendant’s constitutional due process rights are impaired by the legislature’s grant of authority to appointed commissioners to issue search warrants. Pursuant to La.R.S. 13:716(B)(1), the commissioner makes a finding of probable cause to issue a search warrant and an elected judge retains no responsibility for making the ultimate decision on the warrant. The commissioner’s finding of probable cause for the issuance of a search warrant is a final determination. That determination is not reviewed by an elected judge who is vested with judicial power by the state constitution.

In O’Reilly, the Louisiana Supreme Court found that accepting pleas, adjudicating cases, and imposing sentences were final determinations which necessarily involved the exercise of judicial power. The court found unconstitutional the portion of the statute granting the commissioner power to make such determinations in misdemeanor cases. The O’Reilly court referred to the exercise of this judicial power as the “final determination” or “ultimate decision or determination” in the case. The court held that the ultimate determination in a case must be made by an elected judge and an appointed commissioner cannot lawfully exercise this adjudicatory power.

Our finding of unconstitutionality does not end our inquiry. The unconstitutional portion of the statute can be severed from the remainder of La.R.S. 13:716, without destroying the legislative intent behind the statute. In State v. Cinel, 94-0942 (La.11/30/94); 646 So.2d 309, cert. denied, 516 U.S. 881, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995), the Louisiana Supreme Court stated:

Louisiana law also provides for the severability of acts. Unless a law specifically provides otherwise, each provision of an act or law is severable. La.R.S. 24:175 further provides:
If any provision or item of an act, or the application thereof, is held invalid, such invalidity shall not affect other provisions, items or applications of the act which can be given effect without the invalid provision, item, or application.
Severability is therefore authorized unless the unconstitutional portions of the statute are so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention manifested by the legislature in passing the act. State v. Azar, 539 So.2d 1222 (La.1989), citing Cobb v. Louisiana Board of Institutions, 237 La. 315, 111 So.2d 126 (1958). In State v. Johnson, 343 So.2d 705 (La.1977), we stated that the test of severability is ‘whether or not the legislature would have passed the statute had it been presented with the invalid features removed.’ 343 So.2d at 708, quoting 2 Sutherland, Statutes & Statutory Construction, § 44.04 (Sands 4th ed.1973)....

Id. at 314. See also Perschall v. State, 96-0322 (La.7/1/97); 697 So.2d 240.

It appears from the reading of the first paragraph of La.R.S. 13:716 and from Judge Clause’s testimony that the legislature enacted this statute to relieve some of the case load of the judges of the Fifteenth Judicial District Court. That portion of section (B)(1) of La.R.S. 13:716 pertaining to search warrants can be severed, leaving the remainder of the statute intact and allowing the intent of the legislature to be preserved without violating the Louisiana Constitution.

InThe de facto officer doctrine applied by the Louisiana Supreme Court in State v. O’Reilly, 785 So.2d 768, is unavailing to the State. In O’Reilly, the defendants attacked the constitutionality of the statute authorizing the Commissioner’s actions after a plea of guilty in one instance and after a trial on the merits in another. The court poignantly noted that the Commissioner “... was at minimum a de facto officer sitting pursuant to an apparently valid statute whose unconstitutionality had not been attacked directly or declared at the time defendant O’Reilly 'pleaded guilty and was sentenced and at the time Brewster was tried, found guilty, and sentenced.” Id. at 778. (Emphasis supplied). In this case, Defendant Umezulike confronted the unconstitutionality of La.R.S. 13:716(B)(1) prior to the adjudication of the offenses for which he is charged.

CONCLUSION

Louisiana Revised Statutes 13:716(B)(1) is unconstitutional because it delegates the authority reserved to elected judges to make a final or ultimate determination of the existence of probable cause to search to an appointed Commissioner. We reverse the decision of the trial court and grant the Defendant’s motion to suppress the seized evidence.

WRIT GRANTED AND MADE PEREMPTORY.

DOUCET, C.J., Dissents and Assigns Written Reasons.

hDOUCET, C.J.,

dissenting.

I would affirm the trial court’s ruling finding Louisiana Revised Statute 13:716(B)(1), as it pertains to the issuance of search warrants, constitutional because it does not improperly delegate judicial power to an appointed commissioner to issue search warrants. The majority found the portion of the statute which authorizes a commissioner to issue search warrants unconstitutional based on the interpretation that the determination of probable cause to search is a final or ultimate determination that can only be made by an elected judge. I disagree.

The majority reasons that the issuance of the warrant is a final determination of the probable cause for the warrant. I submit that the issuance itself is not a final or ultimate determination in the case as the validity of the warrant and the admissibility of the evidence seized as a result thereof is subject to judicial review. The validity of the search warrant is reviewable and, if the search warrant is found to have been issued improvidently, then the evidence obtained as a result of the search warrant can be suppressed. The supreme court has upheld limited judicial action by commissioners as long as the final determination in the case is made by an elected judge. See Bordelon v. Louisiana Dep’t of Corrections, 398 So.2d 1103 (La.1981). See also State v. O’Reilly, 00-2864 (La.5/15/01); 785 So.2d 768. I disagree that the issuance of a search warrant is a final determination.

lain O’Reilly, the Louisiana Supreme Court held that the ultimate determination in a case is an exercise of judicial power and must be made by an elected judge. I agree. In Bordelon, the supreme court found the determining factor of whether the act or proceeding must be made or conducted by an elected official instead of an appointed official depends on whether it is an ultimate decision in the case as the adjudicatory power must be exercised by an elected judge.

The Defendant bore the burden of showing that the statute is unconstitutional. In the instant case, the Defendant has failed to meet this burden. Since the issuance of a search warrant is not a final or ultimate determination that must be made by an elected judge, I find that portion of La. R.S. 13:716(B)(1) authorizing the issuance of search warrants by a commissioner does not improperly delegate judicial power to a commissioner. Consequently, I respectfully dissent from the majority opinion herein, I would uphold the constitutionality of the statute and I would affirm the trial court’s denial of the motion to suppress.

Furthermore, I find that even if the portion of the statute permitting the commissioner to issue search warrants is unconstitutional, the motion to suppress should still have been denied as the de facto officer doctrine is applicable. The majority concludes that the defacto officer doctrine is unavailing to the State because the Defendant sought review of the matter pretrial. The issue before the O’Reilly court was whether the commissioner of the Twenty-Second Judicial District Court could accept pleas, adjudicate cases and impose sentences — matters which the court found were final determinations which must be made by an elected official. The court held that the de facto officer doctrine applied since the statute had not been attacked nor had the statute been declared unconstitutional prior to the defendants’ convictions and sentences. The court went on to uphold the convictions at issue, finding the de \ ¡facto officer doctrine applicable. The majority in the case at bar concludes that the issuance of the search warrant was a final determination of whether probable cause existed for the issuance of the search warrant. The majority also finds that, since the statute at issue is being attacked pretrial, the de facto officer doctrine does not apply. I find the present situation is clearly addressed by the O’Reilly decision and the de facto officer doctrine would be applicable. Since the portion of the statute at issue had not been declared unconstitutional, the officers had no reason to question the search warrant’s validity at the time of execution of the warrant. In O’Reilly, the Louisiana Supreme Court, quoting the United States Supreme Court, stated:

The U.S. Supreme Court has explained the de facto officer doctrine and its underlying principles as follows:
The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.
Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995) (internal citations omitted).
.... This court has held that until a de facto officer’s title to the office is attacked directly and held to be invalid, “the acts of a de facto official are as valid and effectual, when they concern the public or the rights of third parties, as though he were an officer de jure.... ” State v. Stripling, 354 So.2d 1297, 1300-01 (La.1978).

Id. at 12-13, 776-777.

[4If the majority is correct in finding the commissioner lacked the authority to issue search warrants, then her actions conducted pursuant to La.R.S. 13:716(B)(1), prior to this court’s decision, should be found valid and given full effect.

For these reasons, I respectfully dissent.

      . This case was decided prior to the 1987 amendment to La.R.S. 13:713.

        . This was the former La.R.S. 13:716.

      . La.R.S. 13:716 provides that a commissioner shall not adjudicate a motion to suppress in a felony case; however, no such limitation exists for misdemeanor cases. In fact, La. R.S. 13:716 specifically provides that the commissioner can be designated to adjudicate any matter in a misdemeanor case. Therefore, should a misdemeanor defendant file a motion to suppress challenging the search warrant issued by the commissioner, the motion could be heard and ruled upon by the commissioner. In effect, this would be a final determination of the search warrant's validity.


author: h PATRICIA RIVET MURRAY, Judge.

text:
    Roy W. HALL and Helen Hall v. The FOLGER COFFEE COMPANY and XYZ Insurance Company. Folger Coffee Company v. Roy W. Hall and Helen Hall.
    Nos. 2002-CA-0920, 2002-CA-0921.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Rehearing Denied May 15, 2003.

      Dominic J. Gianna, John D. Person, Marianne Garvey, Jennifer Caulfield, Jeffrey A. Raines, Middleberg, Riddle & Gi-anna, New Orleans, LA, for Appellee (The Folger Coffee Company).
    Ford J. Dieth, Marsha B. Martin, Dieth and Martin, Metairie, LA, for Appellants (Roy and Helen Hall).
    Isaac H. Soileau, Jr., Logan & Soileau, LLC, New Orleans, LA, for Intervenor-Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   h PATRICIA RIVET MURRAY, Judge.

This nullity action was brought by Fol-ger Coffee Company to annul a default judgment rendered against it based on insufficiency of service of process. Although the trial court initially granted summary judgment annulling the default judgment, this court vacated that decision and remanded. Folger Coffee Co. v. Hall, 97-2472 (La.App. 4 Cir. 6/24/98), 715 So.2d 1224 (“Folger I ”). Following a bench trial on remand, the trial court again annulled the default judgment. Finding Folger failed to meet its burden of proving the invalidity of the presumptively valid sheriffs return, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A chronology of the events leading to the instant controversy is as follows. On November 15, 1994, Roy Hall was involved in an accident when he fell from a platform at Folger’s warehouse in New Orleans. At the time of the accident, he was delivering coffee cans for his employer, T.T.C. Illinois, Inc. (“TTC”). On October 10, 1995, Mr. Hall and his wife, Helen Hall, filed a personal injury action against Folger in Civil District Court for the Parish of Orleans (CDC No. 95-15166)(the “Hall Suit”). In their petition, the Halls requested Fol-ger be served ^through its registered agent for service of process, CT Corporation System (“CT”), at its Baton Rouge office.

Although the parties dispute whether service was actually made, the record in the Hall Case contains the return reflecting that service was made as requested on CT. The return recites that Deputy Sheriff Harvey Thompson of the East Baton Rouge Parish Sheriffs Office served CT on November 1, 1995 by “handing said copy to Mary A. Belton, [CT’s] Assistant Secretary in person.” Pursuant to La. C.C.P. art. 1292, the East Baton Rouge Sheriffs Office promptly mailed the return back to the Clerk of the Civil District Court of Orleans Parish. Thereafter, Fol-ger neither answered the petition nor filed other responsive pleadings. On January 24,1996, a preliminary default was entered against Folger. On July 15, 1996, the default was confirmed and judgment was entered against Folger, awarding Mr. Hall $910,572.79 in total damages and Mrs. Hall $45,000 in loss of consortium damages.

Pursuant to La. C.C.P. art.1913, the clerk of the Civil District Court mailed the default judgment to Folger through its agent for service of process, CT. On July 31, 1996, CT received the default judgment. Pursuant to its routine delivery instructions, CT notified Folger by telephone and transmitted the default judgment by Federal Express to Folger through its parent company, Procter and Gamble (“P & G”). On August 1, 1996, P & G received the default judgment. Fol-ger asserts that neither it nor CT had any notice of the Hall Suit until they received the default judgment.

lain response, Folgers initially filed a motion for suspensive appeal and posted the required appeal bond on August 21, 1996. (No. 96-CA-2146). On November 12,1996, Folger filed in this court a motion to stay the appeal and filed in the district court the instant nullity action (CDC No. 96-18775)(the “Nullity Action”). In the Nullity Action, Folger asserted that it was never served with the citation and petition in the Hall Suit, never waived service, and never made a general appearance. The trial court consolidated the Nullity Action with the Hall Suit.

On January 16, 1997, this court granted Folger’s motion and ordered that the default judgment appeal be stayed “until appellant’s action of nullity is final.” As discussed elsewhere in this opinion, we subsequently dismissed that default judgment appeal with the caveat that all the issues in that appeal were preserved for the appeal of the nullity judgment.

Meanwhile, on May 1, 1997, TTC filed a Petition of Intervention into the Hall Suit seeking to assert its rights under the Workers’ Compensation Law in the Halls’ tort recovery. Subsequently, TTC also intervened into Folger’s nullity suit. Although the trial court granted Folger’s exceptions to TTC’s intervention in the nullity action, this court reversed, finding the employer had a right to intervene. Hall v. Folger Coffee Co., 2000-0668 c/w 2000-0669 (La.App. 4 Cir. 2/7/01), 781 So.2d 620. In so doing, we expressly noted the then pending, yet stayed, default judgment appeal. As noted, TTC is the applicant in one of the instant appeals.

On June 9, 1997, the trial court granted Folger’s motion for summary judgment, reasoning that although the return was presumed correct, Folger rebutted the presumption by introducing affidavits establishing that CT was not served and that Folger never received the service documents. From that decision, the Halls appealed. Framing the pivotal issue presented as whether service of process was Ueffected on Folger through CT and finding a genuine issue of material fact remained on that pivotal issue, we reversed. Folger I, supra. We reasoned that the affidavits and documents submitted by the parties were in direct opposition, and concluded that “Folger’s evidence tends to show service was not made; the Hall’s evidence tends to show service was made.” Folger I, 97-2472, p. 5, 715 So.2d at 1226.

Meanwhile, on July 25, 2001, the Halls filed peremptory exceptions of no cause of action and no right of action in Folger’s nullity suit. They argued that Folger was precluded from filing its nullity suit because it made a general appearance on August 21, 1996 when it filed its Motion for Suspensive Appeal seeking review of “all aspects” of the default judgment. On September 17, 2001, TTC likewise filed the same exceptions and asserted the same arguments. On September 28, 2001, the trial court overruled the exceptions.

That ruling was the subject of writ applications to both this court and the Louisiana Supreme Court. On October 10, 2001, this court denied the Hall’s writ (2001 — C—1899), stating that “[o]n the showing made, the district court has not abused its vast discretion in ... overruling their Exceptions of No Cause of Action and No Right of Action.” On October 12, 2001, this court granted in part TTC’s writ (2001-C-1901), ordering the district court to provide TTC with the judgment of September 28, 2001, but otherwise denying the writ, stating that “[o]n the showing made, the district court has not abused its vast discretion in ... overruling their Exceptions of No Cause of Action and No Right of Action.” On October 17, 2001, the Louisiana Supreme Court denied the Hall’s and TTC’s request for a stay | Rand writ application. Folger Coffee Co. v. Hall, 2001-2784 (La.10/17/01), 799 So.2d 1140.

Also on October 17, 2001, a bench trial in the nullity suit was held. At trial, Fol-ger called five witnesses to testify. Two of its witnesses, Linda Rohrer and David L. Grayson, were employees in P & G’s Cincinnati, Ohio office. Mr. Grayson, P & G’s in-house counsel, testified that CT has been Folger’s registered agent for service of process in this state since the early 1960’s. He acknowledged that service on CT is service on Folger. He also testified that during the pertinent period CT has sent every service of process made on Folger through CT’s Baton Rouge office to P & G’s Cincinnati office.

Both Mr. Grayson and Ms. Rohrer detailed P & G’s routine office procedures for documenting receipt of service of process from CT, which included maintaining a litigation log. They both testified that P & G’s business records reflect that it never received a copy of the citation and petition in the Hall Suit. However, neither Ms. Rohrer nor Mr. Grayson had ever been to Baton Rouge; hence, neither of them had any personal knowledge regarding the service in question.

Folger’s other three witnesses were employees at CT’s Baton Rouge office; to wit: Ms. Belton, the office manager; Judy Fritch, a special assistant secretary; and Shawna Smith, a fulfillment specialist. None of these employees had personal knowledge of whether CT was personally served with the citation and petition in the Hall Suit on November 1, 1995. Rather, these employees’ testimony addressed CT’s general procedures for handling the large volume of services received daily by CT, which is in the business of acting as a professional agent for receiving service of process.

| (¡According to Ms. Belton, CT receives approximately twenty thousand services per year. Ms. Belton detailed the step-by-step procedures that were routinely used by CT’s office in handling such services; specifically, those procedures were as follows:

• Around 9:00 a.m., Deputy Thompson dropped off a bundle of service documents at the front desk of CT’s Baton Rouge office. He never contemporaneously completed the returns while at CT’s office; indeed, he never brought the returns with him to CT’s office.
• The first CT employee to arrive each day (generally Ms. Fritsch) unbundled the services, counted them, and wrote the number of services (not the names) on a legal pad. That same employee then divided the services among the CT employees in the office that day to process the services by entering them into the computer.
• Each employee then processed her individual pile of services. In so doing, each employee’s first step was to verify that the service was for a CT customer (i.e., an entity for whom CT was the registered agent for service of process in Louisiana) by checking the “company search screen.” If not, the employee contacted the sheriffs office and the service was returned to them. If so, the employee entered the data from the service into a “service of process worksheet” on the computer.
• Each employee’s second step was to activate the delivery instruction screen to determine the customer’s choice of delivery method. Like most CT customers, Folger’s choice was Federal Express.
• Each employee’s third step was to activate the “transmittal” screen, which merged the prior information into a transmittal letter addressed to the customer.
• Each employee’s fourth and final step was to place the transmittal letter and service documents together in a package to be sent out that same day to the customer. For most customers, the service was sent out by Federal Express.
• At the end of the day, Ms. Belton reconciled the legal pad count with the number of services entered into the computer to ensure that the number of service documents entered into the computer as received matched the hand tally on the legal pad. The legal paid was discarded when it was finished.
• CT keeps a paperless office. It keeps no hard copies or photocopies of any service documents or documents related thereto; all CT’s records are stored in the computer data base.

According to both Ms. Belton and Ms. Fritsch, their independent searches of CT’s computer database and the Federal Express tracking log revealed no evidence |7of receipt of the citation and service in the Hall Suit directed to Folger. Ms. Bel-ton testified that the first documentation that could be found in CT’s computer database of the Hall Suit was the receipt of the default judgment. Particularly, CT’s database reflected that Ms. Smith processed the default judgment as received on July 31, 1996, that it was sent to CT by regular mail, and that it was postmarked July 30, 1996. Ms. Smith testified that the reason she knew she was the employee who processed the default judgment was because her initials appear on the bottom right hand córner behind Ms. Belton’s on the transmittal form that was sent with the default judgment by Federal Express to P & G. According to Ms. Smith, the computer reflected this was the first documentation CT received in the Hall Suit and thus she had to start from scratch in entering it into the computer.

According to Ms. Smith, before CT converted to a new software system, apparently in 1994, it kept a by name list of the services received. She further testified that the reason they discontinued the by name list was because the current computer system was capable of generating a list of the service documents that are received on any given day or in any given time period. She acknowledged, however, that this list must be generated after the fact.

Ms. Fitsch’s testimony corroborated that of Ms. Belton and Ms. Smith regarding CT’s routine operating procedures.

The only other five witness at trial was Deputy Sheriff Ray Antoine, the supervisor of the Civil Process Division in East Baton Rouge Parish, who was called as a witness by the Halls and TTC. Deputy Antoine testified that he was Deputy Thompson’s supervisor. He further testified that in 1993 when he was assistant supervisor and Deputy Jerry Bennett (now retired) was supervisor they met with Ms. Belton and another CT representative regarding CT’s relocation of its lsoffice from New Orleans to Baton Rouge. Deputy Antoine stated that Ms. Belton authorized the sheriffs office to use a stamp to reflect CT’s acceptance of service; that stamp states that the named defendant was served through CT by “handing said copy to Mary A. Belton, Assistant Secretary in person.” He further stated that the routine office procedure in the sheriffs office is that the returns stay in the office and that only the actual service copies are taken out of the office.

By stipulation, the deposition, rather than live, testimony of Deputies Thompson, Bennett, and McGee was introduced into evidence. The gist of the deposition testimony was that none of the deputies had personal knowledge of whether CT was served with the Hall’s Suit on November 1, 1995; rather, the deputies’ testimony addressed the routine procedures that the East Baton Rouge Parish Sheriffs Office used for serving process. Particularly, the routine procedures in 1995 included the following steps:

• Deputies McGee and Thompson worked together to effectuate service of process on CT customers through CT.
• Deputy McGee time and date stamped both the return and service. She then detached the return from the service copy, created two piles (bundles), one for return papers and one for original service papers; and meticulously counted the two piles to ensure they contained an equal number.
• Deputy McGee manually typed pertinent information from the returns onto a log sheet, which included for each suit the name, parish of origin, and payment information. A copy of that log dated November 1, 1995 was attached to her deposition and introduced into evidence at trial. That log sheet reflected the Hall Suit (CDC No. 95-15166) as one of the services to be made on CT for that date and reflected it originated in Orleans Parish and listed the check number that paid for that service.
• Deputy McGee then reconciled the log entries with the number of returns and service originals to ensure they were equal.
• Deputy McGee then placed rubber bands around the bundle of services to secure them vertically and horizontally. She then wrote |9the date for service and “C.T. Corporation” on a slip of paper that she affixed to the bundle, and placed the bundle in a basket for Deputy Thompson to deliver to CT the next day.
• The next day, Deputy Thompson retrieved the bundle from the basket and delivered it to CT.
• The returns always remained at the Sheriffs Office. Deputy McGee placed them in Deputy Thompson’s personal box in the office for him to stamp after he made the services.
• Deputy Thompson stamped the returns one or two days after serving CT using two stamps. A special stamp, agreed upon by Ms. Belton, was used to reflect service on CT, and a second stamp was used in lieu of Deputy Thompson’s signature. The latter signature stamp was used due to the large volume of his service load.
• After stamping the returns, Deputy Thompson left the packet for distribution by other sheriff office personnel to the respective sheriffs from the originating parishes.

Deputy Thompson stated that he makes approximately three to four thousand services per month. He further stated that he made the service of the Hall Suit petition and citation on CT using the same method as all the other services he makes on CT.

The trial court took the matter under advisement and allowed the parties to submit post-trial memoranda. On November 9, 2001, the trial court ruled in favor of Folger, nullifying the default judgment and adopting as its written reasons the legal argument portion of Folger’s post-trial memorandum. The instant appeals by the Hall and TTC followed, and Folger answered those appeals.

ANALYSIS

A judgment against a party who has not been served and who has not appeared is an absolute nullity. Jenkins v. Capasso, 2002-0625 (La.App. 4 Cir. 2/5/03), 836 So.2d 1286. That principle is codified in La. C.C.P. art.2002 A(2), which provides:

A final judgment shall be annulled if it is rendered:
|in(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;

That principle was the basis for Folger’s nullity action.

Finding that Folger rebutted the presumption of validity of the sheriffs return and that CT was never actually served with the citation and petition in the Halls Suit, the trial court annulled the default judgment. The Halls and TTC argue that the trial court erred, procedurally and substantively. Proeedurally, they argue that the trial court erred in finding that Folger had not made a general appearance and thereby waived its right to bring this nullity action under La. C.C.P. art.2002 A(2). Substantively, they argue that the trial court erred in finding that Folger met the burden of proof required to rebut the presumption of validity accorded to the sheriffs return by La. C.C.P. art. 1292. We separately address these two arguments.

PROCEDURAL ISSUES

The Halls and TTC argue that Folger made a general appearance, waiving its right to raise the insufficiency of service of process, by appealing from “all aspects” of the default judgment. Folger counters that this court’s prior rulings on the Halls’ and TTC’s writ applications are “law of the case” and preclude reconsidering the general appearance issue. Fol-ger’s reliance on the law of the case doctrine is misplaced. This court denied both prior writ applications insofar as they pertained to the general appearance issue. The denial of a supervisory writ application does not bar re-litigation of an issue on direct appeal. Richmond v. Doe, 97-1492, p. 5 (La.App. 4 Cir. 4/1/98), 712 So.2d 149, 152 (citing Sattar v. Aetna Life Ins. Co., 95-1108, pp. 3-4 (La.App. 4 Cir. 3/20/96), 671 So.2d 550, 552-52).

The Halls and TTC argue that Folger made a general appearance under former La. C.C.P. art. 7, which provided:

Except as otherwise provided in this Article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any relief other than:
(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant.

Particularly, they rely upon the language in Folger’s notice of appeal stating that “[mjover desires to appeal suspensively from all aspects of the judgment rendered ... on July 15, 1996.” (Emphasis supplied). They contend that underscored language seeks relief other than dismissing the action because of the court’s lack of jurisdiction over the defendant and thus constituted a general appearance.

Both sides rely on the same case as standing for the proposition that Folger’s notice of appeal was or was not a general appearance. DLJ of Louisiana # 1 v. Green Thumb, Inc., 334 So.2d 801 (La.App. 3 Cir.1976). According to Folger, their notice of appeal was drafted based on the DLJ case. According to the Halls and TTC, under the following language in DLJ Folger’s notice of appeal constituted a general appearance; to wit:

We believe that a defendant who moves for an appeal from a default judgment rendered against him, without specifying the grounds he intends to urge on appeal, does not by that motion make a general appearance in the case, provided that the only relief he seeks on appeal is the dismissal of the suit on the ground that the court has no jurisdiction over him. If he seeks any other type of relief while the Incase is on appeal, however, we think his actions in seeking that relief will constitute a general appearance and an implied waiver of all objections he may have to the jurisdiction of the court.

334 So.2d at 804 (Emphasis supplied).

Relying on two other procedural provisions, we find Folger did not make a general appearance. First, La. C.C.P. art. 2088 provides that “[t]he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal.” La. C.C.P. art. 2088 (Emphasis supplied). Hence, Folger’s use of the “all aspects” language added nothing to the scope of the appeal.

Second, La. C.C.P. art.2005 provides that “[a]n action of nullity does not affect the right to appeal” and that “[a] judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed.” La. C.C.P. art.2005. Because the record on appeal from a default judgment ordinarily will not contain any evidence regarding the sufficiency of service, the general rule is that a party against whom a default judgment has been rendered who seeks to challenge the sufficiency of service must do so by bringing a nullity action. Explaining this general rule, the court in Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2 Cir.1985), stated that “the practical effect behind requiring that the defendant bring an action to annul the judgment is to permit the introduction of additional evidence as to the mode and execution of service of process.” 465 So.2d at 914. Hence, LCCP art.2005 recognizes that a defendant against whom a default judgment is entered can contemporaneously appeal and file a nullity action. See also La. R.S. 13:3471(5).

| ^Pursuant to Article 2005, Folger had the right not only to appeal the default judgment, but also to file a nullity action. Although the preferable procedure would have been for Folger to file the appeal and nullity action simultaneously, we cannot say that Folger waived its right to file a nullity action merely by lodging its appeal at an earlier time and then having that appeal stayed pending a final ruling on the nullity action. We thus find that Folger did not make a general appearance, waiving its right to challenge the sufficiency of service, by appealing “all aspects” of the default judgment.

SUBSTANTIVE ISSUES

The crux of this case is whether Folger rebutted the presumption of validity accorded the sheriffs return. In resolving this issue, we find it necessary first to clarify the applicable burden of proof. Our starting point is the Legislature’s declaration in La. C.C.P. art. 1292 that a sheriffs return “shall be considered prima facie correct.” La. C.C.P.- art. 1292. Legislation using the term prima facie is generally accorded the weight of a rebuttable presumption. La. C.E. art. 308. |u When the predicate fact on which a presumption is based is established, the presumption serves to shift the burden of persuasion of the non-existence of the inferred fact to the opposing party. La. C.E. art. 308, Official Comment (b). The burden of persuasion is defined by La. C.E. art. 302 to mean:

The burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact. Depending on the circumstances, the degree of belief may be by a preponderance of the evidence, by clear and convincing evidence, or as otherwise required by law.

This article thus preserved the jurisprudential standards of proof. Keith B. Hall, Evidentiary Presumptions, 72 Tul. L.Rev. 1321, 1324 (1998).

Before Roper v. Dailey, 393 So.2d 85 (La.1980)(on reh’g), the jurisprudential burden of proof for rebutting the presumption of validity of a sheriffs return was by clear and convincing evidence. Roper v. Dailey, 400 So.2d 898 (La.1981)(cro reh’g Dennis, J., dissenting). On rehearing in Roper, however, the Louisiana Supreme Court applied a preponderance of the evidence standard to annul a default judgment based on insufficiency of service of process. In so doing, the court reasoned that “[t]he plaintiff in a nullity action has the burden of proving his case by a preponderance of the evidence. There is a preponderance when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not.” Roper, 393 So.2d at 88. The court found that while the testimony of the party attacking service, Roper, standing alone, may have been insufficient to tip the scales in his favor, the serving officer’s testimony regarding the method he frequently used of making service indicated he “very well may not have served Roper personally.” Id. The court further found it relevant that “as soon as Roper was notified of the default judgment, he employed counsel and took immediate action, and there are no other circumstances which raise inferences | ^contrary to Roper’s testimony.” Id. The court thus concluded that viewing the evidence as a whole, “more probably than not, the serving officer did not serve the citation on Roper personally.” Id.

Roper is the latest pronouncement on this issue by the Louisiana Supreme Court, and it stands for the proposition that the party attacking service “need only to establish the falsity by a preponderance of the evidence.” Mariast & Lemmon, supra, at § 8.5; 2 Steven R. Plotkin, Louisiana Civil Procedure 503 (2002) (stating that “a party may attack the return and prove the falsity or incorrectness of service by a preponderance of the evidence.”) However, Roper also stands for the proposition that the uncorroborated testimony of the party attacking service, standing alone, is probably insufficient to tip the scales in that party’s favor. Mariast & Lemmon, supra. As a general rule, “the uncorroborated testimony of the person served is insufficient to rebut the prima facie presumption unless the person served proves that service was impossible.” Plotkin, supra. Similarly, another court has noted that its “research has disclosed that in every case upholding the defendant’s assertion that he was not served, the defendant’s testimony was corroborated or the return was otherwise impeached.” Polivka v. Worth Dairy, Inc., 26 Ill.App.3d 961, 328 N.E.2d 350, 356 (1 Dist.1974).

Applying these principles to the instant case, we conclude that Folger’s evidence was insufficient to rebut the presumption of prima facie validity accorded the sheriffs return. Although Folger introduced the testimony of three CT employees as well as two P & G employees, we find, as the Halls and TTC contend, that evidence was cumulative. Given CT’s status as Folger’s agent for |1fiservice of process, CT was the defendant who was served. The testimony of CT’s employees was the testimony of the served defendant denying service. That testimony was not corroborated by any proof that the sheriff did not serve, or that it was impossible for him to have served, the Folger’s petition on November 1, 1995. To the contrary, CT kept no written record or log, by name, of what was in the bundle that Deputy Thompson delivered each morning. Instead, CT kept only a running tally on a legal pad of the number of services CT received each day, and that tally had been discarded.

Nor are we convinced by Folger’s argument that the CT employees’ searches of its computer database and Federal Express tracking records revealing no evidence of service of the Hall petition on CT were sufficient to establish the lack of service. Only after the bundle was opened and distributed among the CT employees each day was a computer entry made by a CT employee pursuant to the routine procedure outlined above. Hence, as the Halls and TTC contend, the Hall Suit citation and petition could have been misplaced some place between CT’s “in” box and the desk of one of the five CT employees who worked in its Baton Rouge office. Likewise, only after a service was entered and a transmittal form printed was a Federal Express label prepared. As to the P & G office, it was even further removed. Moreover, the fact that P & G’s business records reflect no service was 117received is not controlling on the issue before us. Service on CT is service on Folger regardless of whether P & G received it on Folger’s behalf.

On the other hand, the sheriffs return, which is presumed to be prima facie correct, was supported by the entry in the Sheriffs Office log reflecting that the Hall Suit service documents were among those in the bundle Deputy McGee prepared for service on CT by Deputy Thompson on November 1, 1995. Although Folger argues that Deputy Thompson could have misplaced it, that argument overlooks the testimony that the bundle of multiple services was always secured by rubber bands so that none of them could come loose. Moreover, Deputy Thompson testified that he served CT with the Hall service in accord with his routine procedures. And the record in the Hall Suit contains the return, which is presumed to be correct.

Folger argues that the presumption is not applicable in this case because Deputy Thompson did not contemporaneously stamp the return copy when he was present at CT’s office. Continuing, Folger argues that Deputy Thompson’s role was akin to a delivery person because all he did was drop off a bundle, which Deputy McGee prepared a day earlier, and routinely stamp the corresponding stack of returns a day or two later. That lack of a contemporaneously prepared return, Fol-ger argues, is also the basis for distinguishing Classic Cabinets, Inc. v. All American Life Ins. Co., 978 P.2d 465 (1999), in which a default judgment was obtained against another CT customer. Folger stresses that the sheriff in Classic Cabinets detached and contemporaneously prepared the return while present in CT’s office in Utah. That contemporaneous return, Folger argues, is the underlying basis for the presumption of validity of the return. Because Deputy Thompson did not make a contemporaneous return and because CT’s employees |istestifíed that the sheriffs office makes mistakes in serving them, Folger argues that the presumption is inapplicable.

Although we agree that Classic Cabinets is factually distinguishable, we disagree with Folger’s argument that the presumption applies only when a return is contemporaneously prepared while service is being made. As the Halls and TTC point out, the Legislature does not require that sheriff officers prepare a contemporaneous return. Moreover, the jurisprudential basis for the presumption, which is codified in La. C.C.P. art. 1292, is not the contemporaneous preparation of the return, but rather that “the affirmative testimony of the official process server acting in the regular routine of duty without a motive to misrepresent must be preferred to the negative evidence of one claiming not to have been served, either for reasons of public policy or as a matter of probability.” Hoffman v. Quality Chrysler Plymouth Sales, Inc., 706 S.W.2d 576, 580 (Mo.App.E.D.1986). Moreover, the presumption serves the purpose of avoiding the standoff that occurs in a case in which the party served simply says I was not served and the sheriffs return recites that the party was served. The presumption serves to end that standoff. Such is the case here.

We find the record reflects that the evidence at trial was very similar to the summary judgment evidence we considered in Folger I. As we noted in our earlier opinion, the summary judgment evidence showed that “Folger’s evidence tends to show service was not made; the Hall’s evidence tends to show service was made.” Folger I, 97-2472, p. 5, 715 So.2d at 1226. The only additional evidence 1 ¶ ^presented at trial was the testimony of the CT employees that they kept a running tally on a legal pad of the number of services CT received each day and that Ms. Belton reconciled the numerical count listed in that tally with the computer count at the end of each day. As we noted, that tally was disregarded when it was finished. We thus find that testimony insufficient to rebut the presumption that CT was served.

Given that both the East Baton Rouge Sheriffs Office and CT routinely handle a large volume of services, that neither entity had a fool-proof record keeping system, and that neither entity knew for certain if service was actually made, we find the decisive factor to be the presumption of validity given the sheriffs return. As noted, the unrebutted presumption preponderates in favor of finding that service was made on CT, Folger’s professional agent for service of process. We thus hold that the trial court was manifestly erroneous in finding that Folger rebutted the presumption and in annulling the default judgment.

FOLGER’S ANSWER

On May 24, 2002, Folger timely answered the appeals filed by the Halls and TTC, seeking to preserve its right to argue the issues preserved when its timely filed default judgment appeal was dismissed. That default judgment appeal was dismissed by an order of this court on April 11, 2002. On April 23, 2002, Folger applied for rehearing from that dismissal order. On May 2, 2002, we issued another order again dismissing as moot the default judgment appeal because the trial court had rendered judgment nullifying the default judgment. In that May 2nd Order, however, we expressly stated that “all issues in the above numbered and captioned appeal are preserved for the appeal of the judgment nullifying the earlier judgment.” And, on May 20, 2002, we issued a per curiam stating that “[sjince we |j>nhave preserved for the parties the issues that may have been asserted in the appeal of the above numbered and captioned matter, we find no reason to disturb or modify our May 2, 2002 Order.”

As a result, the only remaining appeals in this court are the two pending before us from the Nullity Action. In its answer to those appeals, Folger failed to brief any of the preserved issues from the default judgment appeal. Under La. C.C.P. art. 2133 A, an appellee’s answer “shall be equivalent to an appeal on his part.” Ordinarily, we would find the failure of an appellee to brief an issue on appeal results in an abandonment of such issue. However, due to the unique, complex procedural history of this case, we find it appropriate to allow Folger the opportunity to brief the issues that were preserved when its timely default judgment appeal was dismissed.

DECREE

For the foregoing reasons, the judgment of the trial court nullifying the default judgment is reversed. Costs are assessed to Folger. Folger is given fifteen days from the date of this decision to brief the preserved issues pertaining to the default judgment appeal.

REVERSED AND RENDERED.

      . More precisely, the return contains two stamps on it; to wit: (1) a stamp that states the named defendant was served through CT by "handing said copy to Mary A. Belton, Assistant Secretary in person;” and (2) Deputy Thompson's signature stamp.

      . These writ applications also involved an unrelated discovery issue.

      . In her testimony, Ms. Belton stated that she attended this meeting with representatives of the East Baton Rouge Sheriffs Office, but all she could recall regarding the meeting was that a request was made on CT's behalf that it be served as early as possible each day due to CT's policy that “what’s served today goes out today.”

      . This provision was in effect in 1996 when Folger filed its nullity action. The Legislature subsequently repealed this provision.

      . La. R.S. 13:3471(5) provides:
      The return of the serving officer on any citation or other legal process is conclusive, unless directly attacked. Such an attack may be made by rule in the action or proceeding, if made prior to judgment. If made after judgment, the return may be attacked only in a direct action to annul the judgment, which may be brought in the original action or proceeding.

      . La.C.C.P. art. 1292 provides:
      The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct.

      . La. C.E. Art. 308 provides:
      A. Legislation providing that a document or other evidence is prima facie evidence or proof of all or part of its contents or another fact establishes a presumption under this Chapter. When, however, the content, context, or history of the legislation indicates an intention not to shift the burden of persuasion, such legislation establishes only an inference and in a jury case, the court on request shall instruct the jury that if it finds the existence of the predicate fact it may but need not find the inferred fact.
      B. Other uses of the term "prima facie”, such as those that merely provide for the admissibility of specified evidence, do not create presumptions or inferences and are not regulated by this Chapter.

      . In so doing, however, we reject the Halls’ and TTC's evidentiary argument that the trial court erred in overruling their objections to the relevancy of the evidence introduced by Folger at trial regarding the business records and general practices of P & G and CT regarding receipt of service of process. They argue that the only relevant question is whether the East Baton Rouge Sheriff's office served CT. If CT was served, they contend that service was proper regardless of whether CT actually transmitted it to Folger. A trial court’s determination regarding admissibility of evidence will not be reversed absent clear error or abuse of discretion. Folse v. Folse, 98-1976, p. 11 (La.6/29/99), 738 So.2d 1040, 1046; Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763. Evidence is relevant if it "will tell the trier anything about what he or she needs to know.” 1 Frank L. Mariast & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 11.7 (1999). The trial court’s finding that evidence of the entire service of process chain was relevant not clear error or abuse of discretion.

      . Nor is this case analogous to Roper, supra, given this case involved service on a business entity.

      . All three CT employees related various instances in which the East Baton Rouge ■ Sheriff’s Office made mistakes in serving CT. Particularly, Ms. Belton testified that those mistakes included: (i) delivering service papers to CT that were intended for another entity; (ii) attaching more than one service or other documents that should not be attached thereto; (iii) attaching more pages than necessary to a served document; and (iv) serving process with the returns still attached.

      . On May 24, 2002, the same day it filed its answer, Folger also filed a Motion to Stay, which this court denied that day.