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

text:
    STATE of Louisiana v. Dione M. BROWN, Norman Watson and Kenneth Smith.
    No. 2009-KA-0722.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Leon Cannizzaro, District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    C. Gary Wainwright, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

LThe defendants, Dione Brown (“Brown”), Kenneth Smith (“Smith”), and Norman Watson (“Watson”), were charged by bill of information on 24 January 2008, in Count One with possession of heroin in an amount of two hundred to four hundred grams, a violation of La. R.S. 40:966 C; in Count Two with possession of cocaine in an amount of two hundred to four hundred grams, a violation of La. R.S. 40:967 C; and in Count Three with possession of marijuana with the intent to distribute, a violation of La. R.S. 40:966 A. All of the defendants pleaded not guilty at their respective arraignments. The trial court denied the defendants’ motions to suppress on 9 May 2008. This court subsequently denied Brown’s application for supervisory writs as to the denial of the defendants’ motion(s) to suppress.

On 12 December 2008, the state nolle prosequied Count Three of the bill of information as to all defendants and amended Counts One and Two as to all defendants. On that same date all three defendants pleaded guilty to those amended counts under State v. Crosby, 338 So.2d 584 (La. 1976), reserving their right to appeal the denial of their motion to suppress the evidence. All defendants waived legal sentencing delays and requested immediate sentencing.

12As to Brown, the state amended Count One to possession of heroin and Count Two to possession of cocaine. Brown pleaded guilty and was sentenced on Count One to ten years at hard labor, suspended, with five years active probation and conditions, and on Count Two to five years at hard labor, suspended, with five years active probation and the same conditions as imposed on Count One, with the probations and conditions on each count to run concurrently.

As to Smith, the state amended Count One to attempted possession of heroin with the intent to distribute and Count Two to possession of cocaine with the intent to distribute. Smith pleaded guilty and was sentenced on Count One to two years at hard labor, without benefit of parole, probation, or suspension of sentence, and on Count Two to the same sentence with the same restrictions.

As to Watson, the state amended Count One to attempted possession of heroin and Count Two to possession of cocaine. Watson pleaded guilty and was sentenced to two years at hard labor without benefit of parole, probation, or suspension of sen-fence, and on Count Two to the same sentence.

The trial court granted the defendants’ motion for appeal on 11 February 2009.

FACTS

New Orleans Police Department Detective Karla Baker testified at the 14 March 2008 motion to suppress hearing. She stated that on 20 November 2007, she received information from a reliable confidential informant that a Ms. Brown and a Mr. Smith were selling narcotics in the 500 block of Basin Street, but were using another address in the Little Woods area. Detective Baker was not present | ^during a subsequent surveillance of the 500 block of Basin Street by Detective Tommie Felix. She said that during his surveillance Detective Felix observed what he believed to be narcotics transactions. The subjects left the scene in a vehicle.

Detective Baker said officers positioned themselves along the freeway in the direction they believed the subjects would travel. Detective Felix followed them from the inception, and other officers would join in as the subjects passed by them. The subjects were followed to 14011 Linden Street in the Little Woods area of New Orleans. When the vehicle left that address, officers stopped it. Brown was in the vehicle. Detective Baker patted her down and discovered a “very large bag of crack cocaine” in her front pants, just behind the zipper. Detective Baker conducted a more thorough search of Brown incidental to her arrest and found three hundred dollars in her pants pocket.

Detective Baker obtained an application for a search warrant for the Linden Street residence. Detective Baker identified State Exhibit 1, in globo, consisting of the application for the search warrant, the search warrant, and the return on the search warrant. Detective Baker identified the three defendants in court.

Detective Baker confirmed on cross examination that police did not arrest any alleged purchaser of drugs or arrest anyone engaged in an actual sale. No long-term surveillance occurred. She confirmed that her pat down of Brown after the vehicle was stopped was a “Terry” pat down. When asked whether she noticed anything on Brown’s person that looked like a weapon, Detective Baker asked what difference that made, stating that a weapon can come in many forms, and that she cannot judge whether someone has a weapon on their person until she checks. She replied in the affirmative when asked whether when conducting an investigatory stop she felt comfortable patting down any person being stopped.

|40n redirect examination, Detective Baker was asked about concerns she has when making a stop of someone suspected of having been conducting narcotics transactions. Detective Baker replied that a very close connection exists between narcotics and weapons, stating that one has to look for guns and knives. She confirmed that her initial frisk of Brown was for weapons.

New Orleans Police Department Detective Tommie Felix testified that on 20 November 2007, he was conducting a narcotics investigation at 501 Basin Street. He observed individuals walk up to Smith and give him U.S. currency. Smith would then signal to Brown, and the purchaser would walk over to her and receive small objects. Detective Felix described Watson as the lookout, saying that if police car passed he signaled everyone, and all of them went inside what the detective referred to as the “store.” Detective Felix witnessed several transactions. He said the three suspects eventually got into a Nissan Murano vehicle and drove to the Linden Street residence. He detailed the surveillance of the defendants’ vehicle during the drive to the Linden Street residence. Detective Felix participated in executing the search warrant at the Linden Street residence. Police there found in a dresser heroin, crack cocaine, and marijuana; underneath the last drawer, on the floor, more than three thousand dollars was found. Also, a scale was also found.

Detective Felix confirmed on cross examination that no one was arrested during the surveillance on Basin Street. He said he spoke with the confidential informant at the beginning of the surveillance, and the informant identified the three defendants at the location where the three were engaged in selling narcotics. Once the defendants arrived at the Linden Street residence, Detective Felix stayed within view of it. He did not participate in the stop of the defendants’ vehicle. He Land perhaps two other officers conduced a protective sweep of the Linden Street residence before the search warrant was signed to make sure no one else was inside. Detective Felix identified a photograph of the New Orleans Police Department’s First District Police Station at 501 N. Rampart/Basin Street. Officers also searched a Nissan Maxima automobile that was parked in the driveway of the Linden Street residence.

Detective Baker was recalled as a witness. She testified that she advised other officers by phone that she had obtained a search warrant, and she confirmed that as far as she was aware that was when the officers began the search. Detective Baker had no knowledge of the search of a Maxima automobile at the residence, or a blue Camry, or anything about a 2008 Hyundai Accent automobile that defendant Watson had rented. The Hyundai was transported to the Seventh District Police Station.

Detective Felix testified a second time at an 11 April 2008 continuation hearing on the defendants’ motion to suppress. He was questioned about his previous testimony about a grocery store on Basin Street. He said he had always known the address of that store to be 501 Basin Street, stating that he and his friends used to meet at that store. He said the store was approximately one block from the First District Police Station, and that it was on the uptown corner on Basin Street, across a side street from the Iberville Housing project.

Brown testified at the 9 May 2008 continuation hearing on the defendants’ motion to suppress that on 20 November 2007, she and others were driving in her aunt’s Murano down Paris Avenue, about to get to 1-10, when police stopped them. She denied having been on Basin Street earlier that day or having engaged in hand-to-hand narcotics transactions with Watson and Smith in front of the police | f,substation. She acknowledged that a police station is right across the street from the grocery store on Basin Street. The police ordered them out of the car after it was stopped. Brown said she was searched by a female officer, who discovered a rolled up cigar and a small bag of marijuana. She asserted that no other drugs were found in the vehicle. Police took her to her home and entered it with a key. She said Terrell Wilson and Mack Neil used a coat hanger to open the door of a blue Camry parked on the grass of her aunt’s yard. The two men came out with a little brown and orange shoebox and said “Bingo.” Those two also searched a Maxima automobile that was in her driveway. Brown said she told the officers she did not know who the Camry belonged to. Her aunt told the officer she did not know either. Bruce Little, who Brown said was wearing white and was either a Captain or a Lieutenant, opened the shoebox and found heroin and crack cocaine, which was displayed to her. Brown stated on cross examination that a neighbor had tried to get the blue Camry towed.

ERRORS PATENT

A review of the record reveals patent errors as to both sentences imposed on Watson and one sentence imposed on Smith.

In sentencing Watson to two years imprisonment at hard labor for attempted possession of heroin in Count One and two years at hard labor for simple possession of cocaine in Count Two, the trial court stated that each sentence was to be served without benefit of parole, probation, or suspension of sentence. Neither La. R.S. 40:966 C(l), providing the sentence for attempted possession of heroin, nor La. R.S. 40:967 C(2), providing the sentence for possession of cocaine, allows for the sentence to be served without the benefit of parole, probation, or suspension |7of sentence. Nothing in the attempt statute, La. R.S. 14:27 D(3), alters how the sentence is to be served in that respect. Accordingly, Watson’s sentence must be amended to delete those limitations.

In sentencing Smith to two years imprisonment at hard labor for attempted possession of heroin with the intent to distribute in Count One, the trial court stated that the sentence was to be served without benefit of parole, probation, or suspension of sentence. However, La. R.S. 40:966 B(l), providing the penalty for possession of heroin with the intent to distribute, simply provides that a minimum part of the sentence be served without benefit of probation or suspension of sentence. There is no provision for the denial of the benefit of parole. Nothing in the attempt statute, La. R.S. 14:27 D(3), alters how the sentence is to be served in that respect. Accordingly, Smith’s sentence must be amended to delete the limitation that it is to be served without the benefit of parole.

ASSIGNMENT OF ERROR NO. 1

The defendants first argue that the trial court erred in denying their motion to suppress the evidence because the information provided by the confidential informant, even when coupled with the police surveillance, failed to establish either reasonable suspicion for the traffic stop or probable cause for the issuance of a search warrant.

Traffic Stop and Warrantless Seizure of Evidence from Brown

Detective Baker recovered a large bag of crack cocaine when she conducted a protective frisk of Brown after the car in which Brown and the other two defendants were driving was stopped by police after they returned to and then left | sthe Linden Street residence. This evidence was used against Brown and was also used to secure the search warrant for the Linden Street residence.

Warrantless searches and seizures fail to meet constitutional requisites unless they fall within one of the narrow exceptions to the warrant requirement. State v. Edwards, 97-1797, p. 11 (La.7/2/99), 750 So.2d 893, 901. On trial of a motion to suppress, the state has the burden of proving the admissibility of all evidence seized without a warrant. La. C.Cr.P. art. 703(D); State v. Jones, 97-2217, p. 10 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 395. A trial court’s ruling on a motion to suppress the evidence is entitled to great weight, because the court has the opportunity to observe the witnesses and weigh the credibility of their testimony. State v. Devore, 00-0201, p. 6 (La.App. 4 Cir. 12/13/00), 776 So.2d 597, 600-601; State v. Mims, 98-2572, p. 3 (La.App. 4 Cir. 9/22/99), 752 So.2d 192,193-194.

La.C.Cr.P. art. 215.1 A codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and a reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37; State v. Littles, 98-2517, p. 3 (La.App. 4 Cir. 9/15/99), 742 So.2d 735, 737. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667, p 4 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. State v. Carter, 99-0779, p. 6 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 274.

The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Hall, 99-2887, p. 4 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 57; State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254.

In the case at bar, based on a tip to Detective Baker from an individual she described as a confidential informant who was reliable in the past, Detective Felix set up a surveillance of the described location. Once Detective Felix was in position, the informant telephoned him and described the individuals for him. Detective Felix witnessed what appeared to him to be several hand-to-hand narcotics sales, with the purchaser giving U.S. currency to Smith, whereupon Smith would signal to Brown, the purchaser would walk over to Brown, and she |inwould hand the purchaser small objects. During this time Watson acted as what Detective Felix described as a lookout. After observing these apparent narcotics transactions, the police observed the three defendants enter a vehicle and drive off. Based on information from the informant, the police anticipated that the defendants would drive to a residence in the Little Woods area. Police were able to station officers along the anticipated route, and Detective Felix followed the defendants from the beginning, from his surveillance position. The individuals drove to the Linden Street residence. Officer observed the defendants enter the residence in question with a key, then leave. Officers then stopped the car in which the defendants were driving. Brown was frisked by Detective Baker, and the large bag of crack cocaine was discovered inside of her pants.

In them argument as to this assignment of error, the defendants submit that (a) the information from the informant alone was insufficient to establish reasonable suspicion to stop them because there was no time frame established regarding the confidential informant’s alleged past observations of criminal activity by them; (b) no information that the informant had ever purchased narcotics from defendants was presented; and (c) nothing existed to suggest that the informant predicted when the defendants would be engaged in narcotics sales or the times when they would leave or return.

The defendants further argue that the surveillance by police did not add anything justifying the traffic stop because the police testimony about the surveillance was not credible. They base this argument on what they say was an incorrect address given by police of the location where the store at which the defendants were allegedly selling narcotics. The defendants also point out that none of the alleged purchasers was arrested. However, as to the credibility of |nDetective Felix, the trial court obviously accepted his testimony that he believed the address of the grocery store in front of which defendants were observed allegedly selling narcotics was 501 Basin Street, even if it was incorrect.

The defendants cite State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268, where police received an anonymous tip that an individual known as “Will,” who drove a dark green Pontiac Grand Am with very dark tinted windows, was involved in the illegal sale of narcotics within the Magnolia Housing Development. The caller described Will. The caller further stated that the described vehicle would be parked in the 2800 block of Magnolia Street when Will was not delivering narcotics. Police relocated to the 2800 block of Magnolia Street and identified a dark green Pontiac Grand Am with dark tinted windows parked in a driveway. While the officers were getting in position to set up surveillance, they observed the vehicle pull out of the driveway and begin to drive away. The officers followed the vehicle until it parked in the 2500 block of Sixth Street. When the driver exited the vehicle, the officers observed that he matched the description given by the caller. The officers then approached the defendant and asked his name. After the defendant identified himself as William Robertson, police informed him that he was under investigation for narcotics violations. A canine detention unit was called to the scene and arrived approximately ten to fifteen minutes later. When the dog indicated that an odor of narcotics was coming from inside the vehicle, police entered the vehicle and discovered a large plastic bag filled with crack cocaine underneath the ashtray. Thereafter, the defendant was placed under arrest. The trial court denied the defendant’s motion to suppress 112the evidence, and this court denied the defendant’s writ application on the ruling. The Louisiana Supreme Court reversed, finding that because the tip did not provide sufficiently particular information concerning the defendant’s future actions, an important basis for forming reasonable suspicion was absent. However, the court noted that:

[T]he police were not powerless to act on the non-predictive, anonymous tip they received. The officers could have set up more extensive surveillance of defendant until they observed suspicious or unusual behavior. Furthermore, if, after corroborating the readily observable facts, the officers had noticed unusual or suspicious conduct on defendant’s part, they would have had reasonable suspicion to detain him. These circumstances, however, were not present here. In the absence of any suspicious conduct or corroboration of information from which police could conclude that the anonymous informant’s allegation of criminal activity was reliable, we must conclude that there was no reasonable suspicion to detain defendant.

Robertson, 97-2960, pp. 5-6, 721 So.2d at 1270-71.

The defendants analogize Robertson to their case. However, even assuming for the sake of argument that the tip to Detective Baker was shown to be no more reliable than the anonymous tip in Robertson, unlike Robertson, police in the instant case conducted a surveillance based on the information received in the tip and observed what they believed to be were several hand-to-hand narcotics transactions involving two of the defendants as participants and one as a lookout. The defendants were where the tipster said they would be, and after engaging in the narcotics transactions they traveled from that location by automobile to a residence in the Little Woods area. The tipster had told police that the defendants kept drugs at a residence in the Little Woods area. Police observed the defendants | isenter the residence with a key and then leave. At that point, considering the totality of the circumstances, police had reasonable suspicion to believe the defendants were committing, had committed or were about to commit an offense, and lawfully stopped them. Therefore, the trial court properly did not suppress the evidence on any ground related to the issue of whether there was reasonable suspicion to stop the vehicle in which the defendants were riding.

In this argument the defendants also attack Detective Baker’s action in frisking or conducting a limited pat down of Brown during which the officer noticed a baseball-size bag of crack cocaine concealed down Brown’s pants, behind her zipper. The defendants’ argument is that no reasonable suspicion existed that Brown had a weapon, and that therefore the pat down or frisk was not warranted, and the crack cocaine was not lawfully seized. They do not argue that the object felt by Detective Baker inside of Brown’s pants was not immediately recognizable as contraband.

If a police officer stops a person pursuant to La.C.Cr.P. art. 215.1 A whom he reasonably suspects is committing, has committed, or is about to commit a crime, and reasonably suspects that he is in danger, the officer may frisk the outer clothing of such person for a dangerous weapon; if the officer reasonably suspects that the person possesses a dangerous weapon, he may search the person. La.C.Cr.P. art. 215.1 B; State v. Jones, 99-0861, p. 12 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 38. The officer need not be absolutely certain that the person is armed, but the facts must justify a belief that the officer’s safety or that of others is in danger. State v. Williams, 98-3059, p. 4 (La.App. 4 Cir. 3/3/99), 729 So.2d 142, 144.

|14In the instant case, Detective Baker essentially conceded on cross examination that she did not see a weapon on Brown’s person prior to patting her down. However, Detective Baker was asked on redirect examination about concerns she has when making a stop of someone who has been conducting what she believes to have been narcotics transactions. Detective Baker replied that there is a very close connection between narcotics and weapons, stating that one has to look for guns and knives. She also confirmed that her initial frisk of Brown, before Brown was arrested, was for weapons.

A recognized and close association between narcotics traffickers and weapons exists. State v. Wilson, 00-0178, p. 3 (La.12/3/00), 775 So.2d 1051, 1053. Thus, in Wilson, the Louisiana Supreme Court upheld an officer’s protective frisk of an individual whom the experienced former undercover narcotics officer observed in a known drug area, crouched down next to the driver’s side door of an occupied vehicle. Based solely on the recognized drug trade-weapons connection, the court found that the officer had “a [sic] articulable and objectively reasonable basis for conducting a self-protective search of the defendant’s outer clothing for weapons.” Id. See also State v. Small, 00-0564, p. 1 (La.3/24/00), 762 So.2d 1071 (“When the officers lawfully stopped defendant and conducted a pat down in a self-protective search for weapons based on their experience that weapons were often associated with narcotics trafficking,.... ”).

In Jones, supra, this court, in reviewing the propriety of a weapons frisk, noted:

[I]n many instances, suspicion of drug dealing itself is an articulable fact that may support a frisk pursuant to La. C.Cr.P. art. 215(B). State v. Fortier, 99-0244 (La.App. 4 Cir. 1/26/00), 756 So.2d 455 (“We can take notice that drug traffickers and users have a violent lifestyle, which |1Bis exhibited by the criminal element who are generally armed due to the nature of their illicit business. Therefore, a police officer should be permitted to frisk a suspect following an investigatory stop [based on reasonable suspicion] relating to drug activities.”), 99-0244 at p. 7, 756 So.2d at 460, quoting State v. Curtis, 96-1408, pp. 9-10 (La.App. 4 Cir. 10/2/96), 681 So.2d 1287, 1292. See also State v. Williams, 98-3059 (La.App. 4 Cir. 3/3/99), 729 So.2d 142 (officer’s testimony that he frisked a defendant suspected of drug activity to look for weapons for his own safety was sufficient to validate a frisk pursuant to La.C.Cr.P. art. 215(B)). (Footnote omitted).

Jones, 99-0861 at p. 14, 769 So.2d at 38-39.

In the case at bar, considering that the officers stopped the vehicle in which the defendants were riding because they suspected them of narcotics trafficking, Detective Baker justifiably patted down Brown, lawfully recovering the baseball-size bag of crack cocaine concealed down Brown’s pants.

Probable Cause to Issue the Search Warrant

In State v. Green, 02-1022 (La.12/4/02), 831 So.2d 962, the Court set out in extensive detail the applicable law pertaining to probable cause to issue search warrants, as follows:

It is a basic tenet of this state’s constitution that every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. LA. CONST. ANN. art. I, § 5. A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which “[m]ay constitute evidence tending to prove the commission of an offense.” LA.CODE CRIM. PROC. ANN. art. 161(A)(3). I is also well accepted 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 that establish the cause for the issuance of the warrant. LA.CODE CRIM. PROC. ANN. art. 162. As provided in this state’s constitution |1fiand the Code of Criminal Procedure a search warrant shall particularly describe the person or place to be searched, the person or things to be seized, and the lawful purpose or reason for the search. LA. CONST. ANN. art. I, § 5; LA.CODE CRIM. PROC. ANN. art. 162.
Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280 (La.1982). A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant. See, e.g., State v. Manso, 449 So.2d 480, 482 (La.1984), cert. denied sub nom., Manso v. Louisiana, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). The United States Supreme Court held that “[sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citations omitted). Moreover, this Court previously held: “[t]he process [of determining probable cause] simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983) (citing Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)).
An issuing magistrate must make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). This affidavit must contain, within its four corners, the facts establishing the existence of probable cause for the warrant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). In Wells, the source of the “four corners” doctrine” in this state, this Court noted that Article 162 required that the facts establishing probable cause be recited in the affidavit because the judge, not the affiant, is the one who must be satisfied as to the existence of probable cause. LA.CODE EVID. ANN. art. 703(D) Instates that when evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a trial on his motion to suppress that evidence. The task of a reviewing court is simply to insure that under the totality of the circumstances the issuing magistrate had a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accordingly, in Rodrigue, we stated, “The magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” Rodrigue, 437 So.2d at 833. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. State v. Jenkins, 2001-0023 (La.6/22/01), 790 So.2d 626 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); State v. Loera, 530 So.2d 1271, 1278 (La.App. 2 Cir.1988), writ denied, 536 So.2d 1252 (La.1989).
The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Simms, 571 So.2d at 148. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Rodrigue, 437 So.2d at 830. The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. Simms, 571 So.2d at 149; State v. Ogden and Geraghty, 391 So.2d 434 (La.1980). Likewise, probable cause will not be defeated simply because innocent explanations for an activity can be imagined. LAFAVE, SEARCH AND SEIZURE, § 3.2(e), p. 69. |1sProbable cause exists if a “succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.” Id. at 70 (quoting United States v. Patterson, 492 F.2d 995 (9th Cir.1974)). (Footnote omitted).

Green, 02-1022 at pp. 6-9, 831 So.2d at 968-970.

The affidavit/application for the search warrant completed by Detective Baker stated that she met with a reliable confidential informant whose information in the past had led to the arrest of numerous individuals involved in illegal narcotics trafficking in the City of New Orleans. The informant told her that a black female named Dione Brown and a black male named Kenneth Smith lived in a residence in the Little Woods area of New Orleans East at an address unknown to the informant. The informant cited the address as a retail distribution stash and packaging house for crack cocaine and heroin. The informant also said Smith was in charge, and that he and Brown would sometimes incorporate one or two other individuals for assistance in selling and packaging narcotics. The informant stated that Brown and Smith would keep larger quantities of heroin and crack cocaine at their residence and transport some in a black Nissan Mu-rano SUV, license plate number REH 248, to a storefront located near the Iberville Housing Development, at 501 Basin Street. The informant further stated that after the sales were completed, Brown and Smith would return to the Little Woods residence and gather additional heroin and crack cocaine for additional sales at the Basin Street location.

Detective Baker said in the search warrant affidavit that the factual basis for the informant’s knowledge was from personal observations of what were perceived [13to be illegal hand-to-hand narcotics transactions made from the Basin Street location.

Detective Baker recounted the surveillance by Detective Felix, stating that he observed what he believed were several narcotics transactions over an hour span. He observed a slim black female, dressed in blue jeans and a blue t-shirt, approach Smith and engage in a short conversation. The female handed Smith what appeared to be U.S. currency, at which time Smith signaled via a hand gesture (holding up one finger) to Brown. Brown then reached into the front of her pants and removed a small object. Brown gave the small object to the female, who then placed it into her left sock and left the location. The affidavit recited that Detective Felix observed Smith and Brown use the same routine “numerous times” with the unknown male (apparently referring to Watson) acting as a lookout. Detective Felix observed a marked police car approach the location, at which time the unknown male, who was holding a small child, verbally stated something to Smith and Brown, and all three individuals entered the store. After the police car passed by, all three individuals exited the store. They decided not to conduct any individual “take downs’ of buyers due to the ongoing investigation.

Detective Baker then recited in the affidavit the details surrounding the tailing of the defendants’ vehicle, the black Murano SUV, to 14011 Linden Street, where Smith, Brown, and the unknown black male with the child exited the vehicle and entered the house, utilizing a key which Smith possessed. The three emerged from the residence approximately one hour later and reentered the vehicle. The vehicle was stopped at Paris Road and 1-10, where Detective Baker discovered a baseball-size amount of crack cocaine inside the front of Brown’s pants. Brown, Smith, and Watson (the heretofore unknown male) were arrested. Detective Baker 120stated in the affidavit that other units involved then relocated to 14011 Linden Street to secure it, while she relocated to the Seventh District Station to prepare the search warrant affidavit.

Detective Baker concluded her search warrant affidavit by stating that, based upon the information received from the informant and corroborated by the surveillance, and the arrest, it was her belief that heroin and crack cocaine were then being secreted within 14011 Linden Street. The affidavit was dated 20 November 2007 and timed at 6:00 p.m. The search warrant order of search was executed and issued on that same date and time. The return on the warrant reflects a total of two hundred sixty-seven grams of crack cocaine, two hundred forty-nine grams of heroin, almost seven grams of marijuana were recovered, $4,273.00 in U.S. currency, and a digital scale.

The search warrant application/affidavit did not state a time period within which the confidential informant had observed Smith and Brown engage in crack cocaine and heroin distribution at a location on Basin Street prior to the initiation of the surveillance by Detective Felix. However, it set forth that in response to the tip, Detective Felix set up a surveillance of the Basin Street location and subsequently observed a number of what he believed to be narcotics transactions conducted there by Smith and Brown, and a person later identified as Watson. Detective Felix’s observations thus confirmed the credibility of information given by the informant and his/her reliability. The affidavit also recited that the informant told Detective Baker that Smith and Brown sold the narcotics on Basin Street, but kept larger quantities of crack cocaine and heroin at their residence in the Little Woods section of New Orleans. The informant stated that after selling narcotics on Basin Street Smith and Brown would return to the Little Woods 12iresidence to gather more narcotics for additional sales at the Basin Street location. The affidavit stated that after Detective Felix observed the narcotics transactions on Basin Street, he followed Smith, Brown, and Watson, with other officers picking up the rolling surveillance along the anticipated route, to a residence in the Little Woods section of New Orleans. Thus, the informant was able to predict more activity by the defendants, with that activity being viewed in light of the fact that they had been observed by Detective Felix selling narcotics. This further strengthened the credibility of information given by the informant, and his/her reliability, insofar as all the information he had given Detective Baker, but particularly the information that Smith and Brown kept larger quantities of crack cocaine and heroin at the Little Woods residence.

The police subsequently stopped the vehicle in which the defendants were driving, and a limited pat-down frisk of Brown by Detective Baker revealed a baseball-size package of crack cocaine. This discovery further buttressed the general credibility of the information given by the unidentified confidential informant, and his/her reliability.

The search warrant application/affidavit makes it clear that the surveillance on Basin Street by Detective Felix, the following of the defendants by police to the Linden Street residence in the Little Woods section of New Orleans East, the stop of defendants’ vehicle and discovery of crack cocaine on the person of Brown, and the making and filing of the affidavit for the search warrant itself, all transpired in seamless sequence.

Considering the totality of circumstances set forth in the search warrant affidavit, the issuing magistrate made a practical, common sense decision that there was a fair probability that evidence of a crime would be found inside of the Linden | ^Street residence of Smith and Brown at the time of the application for and the issuance of the search warrant. It cannot be said that the trial court was in error in determining that probable cause existed to issue the search warrant.

We find no merit to any aspect of this assignment of error.

ASSIGNMENT OF ERROR NO. 2

In their second assignment of error, the defendants argue that there is a material misrepresentation in the search warrant affidavit that renders it invalid. The defendants argue that the alleged material misrepresentation is that the municipal address of the Basin Street location where the narcotics sales were allegedly made by the defendants was not 501 Basin Street.

In connection with the motion to suppress hearings, the defendants introduced a number of photographs depicting the New Orleans Police Department First District Police Station with a municipal address of 501 N. Rampart/Basin Street. Detective Felix testified that he had always known the address of the grocery store at which the narcotics sales were made as 501 Basin Street. He admitted that he did not look to see what municipal address was actually on the grocery store. Detective Felix described the grocery store as right across the street from the Iberville Housing Development. It is apparent that, at worst, Detective Felix simply was mistaken as to the municipal address of the grocery store.

However, no indication is present that Detective Felix intentionally misrepresented the precise municipal address of the grocery store. The defendants offer no rational suggestion as to why Detective Felix would do such a thing, or what he would have to gain from such a misrepresentation. We find no indication that any error as to the municipal address of the Basin Street location was anything | ^other than unintentional on the part of the informant, Detective Felix, and Detective Baker.

At worst, the address of the Basin Street location of the store where the defendants engaged in narcotics sales was inadvertently listed in Detective Baker’s search warrant affidavit. When information contained in an affidavit for a search warrant is inadvertently misrepresented, the reviewing court should excise that information from the search warrant affidavit when considering whether the affidavit provided probable cause for the issuance of the warrant. State v. Fournette, 08-0254, p. 26 (La.App. 4 Cir. 7/2/08), 989 So.2d 199, 216, writs denied, 08-1815, 08-1824 (La.4/17/09), 6 So.3d 789.

In the instant case, the defendants argue that because no reasonable suspicion existed for the stop of their automobile by police, any mention of that stop and evidence seized as a result should also be stricken from the warrant affidavit. However, we have already determined, in addressing the previous assignment of error, that the officers had reasonable suspicion for that traffic stop.

Excising the municipal Basin Street number from the search warrant affidavit, the affidavit still provides probable cause for the issuance of the search warrant.

No merit to this assignment of error is shown.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, the defendants argue that the warrantless entry by police into the 14011 Linden Street residence was not supported by exigent circumstances.

^Detectives Baker and Felix freely admitted that after the surveillance showed the defendants selling narcotics, and after the defendants were stopped in their car and crack cocaine was found on Brown’s person, officers entered the Linden Street residence to secure it and any evidence therein pending Detective Baker’s securing of the search warrant. The defendants argue that there were no exigent circumstances justifying the entry into the residence.

In their argument the defendants concede that no evidence was claimed to have been discovered in the residence prior to the issuance of the search warrant. They implicitly concede in their appeal that the subsequent issuance of the search warrant and search of the premises pursuant thereto would have removed the taint of any illegal entry by the officers prior to the warrant being issued. However, the defendants submit that because there was no probable cause to issue the search warrant, the warrant and subsequent search pursuant thereto do not remove the illegal taint.

We interpret this assignment of error by the defendants is premised on the supposition that the evidence was illegally seized because police had no valid search warrant and no exigent circumstances to enter the residence without a warrant.

The state does not attempt to argue that exigent circumstances were present, but cites this court’s decision in State v. Roebuck, 530 So.2d 1242 (La.App. 4 Cir.1988). In Roebuck, police officers secured a hotel room pending the securing of a search warrant for it. The officers observed nothing in the hotel room that would have aided their investigation or helped them obtain a search warrant. The evidence subsequently seized pursuant to the search warrant was not obtained by exploitation of the entry into the hotel room, but by means sufficiently Indistinguishable to be purged of any taint. Thus, this court concluded that evidence from the hotel room “does not have to be suppressed because of the police entry into the room hours before, even if such entry is considered illegal.” Roebuck, 530 So.2d at 1250.

The case at bar is no different. All the evidence seized from the Linden Street residence was seized pursuant to the search warrant. There was no information in the affidavit that was obtained by virtue of the officers’ entry into the residence before the warrant was issued that was used to secure the search warrant. Therefore, the evidence was lawfully seized, and the trial court properly denied the motion to suppress it.

We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 4

In their last assignment of error the defendants argue that their motion to suppress should have been granted because Detective Felix was not in good faith in executing the search warrant because he should have known, based on his numerous years as a police officer, that probable cause for the issuance of the search warrant did not exist. The defendants submit that Detective Felix executed the search warrant when he knew or should have known that it was gained by perpetrating a fraud on the court.

Other than perhaps an unintentional mistake as to the correct municipal number for the Basin Street grocery store where Detective Felix said the defendants were selling narcotics, we find no indication that any representation made by Detective Felix was false. The search warrant provided sufficient probable cause for issuance of the warrant.

12fjThe defendants cite United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), for the proposition that evidence should not be excluded when officers were acting in reasonable reliance on the issuance of a warrant. However, Leon applies where the court reviewing a defendant’s challenge to a search and seizure finds that there was insufficient probable cause to issue the search warrant. Then the issue becomes whether the officers who executed the warrant reasonably relied on it, i.e., acted in “good faith.”

Leon is not applicable to the instant case because the search warrant in the instant case was issued upon sufficient probable cause. Moreover, we find no indication that any police officer in the instant case did not act in reasonable reliance on the magistrate’s issuance of the search warrant for the Linden Street residence.

No merit exists in this assignment of error.

CONCLUSION

For the foregoing reasons, we affirm the convictions of all three defendants. We affirm (1) both sentences of Dione M. Brown; and (2) Kenneth Smith’s sentence as to Count Two, We amend Kenneth Smith’s sentence as to Count One to delete that portion denying him the benefit of parole, and affirm his sentence as amended. We amend both sentences imposed on Norman Watson to delete the limitations that they be served without benefit of parole, probation, or suspension of sentence, and that affirm as amended his sentences.

AFFIRMED AS TO DEFENDANT BROWN; AMENDED IN PART AND AS AMENDED, AFFIRMED AS TO DEFENDANTS SMITH AND WATSON.

      . State v. Brown, 08-0895, unpub., (La.App. 4 Cir. 8/4/08).

        . State v. Robertson, 97-1950, unpub. (La.App. 4 Cir. 11/5/97).


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Donald DOMINIO v. The FOLGER COFFEE COMPANY, XYZ Insurance Company, ABC Individually, and Def.
    No. 2009-CA-1278.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Keith Couture, Wesley Levesque, Couture & Soileau, LLC, Mandeville, LA, Frank Larre’, Larre’ and Larre’, Gretna, LA, for Plaintiff/Appellant Donald Domi-nio.
    Isaac H. Soileau, Jr., Couture & Soileau, LLC, New Orleans, LA, for Interve-nor/Appellant, T.T.C. Illinois, Inc.
    Dominic J. Gianna, Alan Dean Wein-berger, Middleberg Riddle & Gianna, New Orleans, LA, for Defendant/Appellee Fol-ger Coffee Co.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   PATRICIA RIVET MURRAY, Judge.

| ¶ This is a tort suit arising out of a work place accident. The sole issue raised on appeal is whether the trial court correctly concluded that the defendant, The Folger Coffee Company (“Folger”), was the statutory employer of the plaintiff, Donald Dominio. Answering that question in the affirmative, we affirm the trial court’s judgment dismissing Mr. Dominio’s tort suit and declaring the intervention filed by his direct employer, T.T.C., Inc., moot.

FACTUAL AND PROCEDURAL BACKGROUND

In June 1993, Mr. Dominio was injured at Folger’s warehouse. He was attempting to move out of the way of a forklift that was rapidly backing out of a truck. As he moved out of the way, he tripped and fell. At that time, Mr. Dominio was employed as a truck driver by T.T.C., a professional employee leasing company. However, Mr. Dominio was working for Arcadian Motor Company (“Arcadian”). T.T.C., as explained elsewhere in this opinion, leased Mr. Dominio to Arcadian.

lain June 1994, Mr. Dominio filed this tort suit against Folger alleging its negligence caused his injuries. Folger answered the suit and denied liability. T.T.C. intervened seeking to recover the workers’ compensation benefits it had paid.

In September 2004, Folger filed a motion for summary judgment on the basis that it was Mr. Dominio’s statutory employer and therefore immune from tort liability. In November 2004, the trial court granted Folger’s motion for summary judgment. From that judgment, Mr. Dominio and T.T.C. appealed. In February 2006, this court reversed and remanded. Dominio v. Folger Coffee Co., 05-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16 (hereinafter “Dominio I ”).

In Dominio I, this court held that the applicable statutory provision for determining whether Folger was Mr. Dominio’s statutory employer was the 1989 version of La. R.S. 23:1061! Under La. R.S. 23:1061, a statutory employer is defined as a principal who has contracted others to perform work “which is a part of his trade, business, or occupation.” In 1989, the Legislature amended this statute to add the following language:

The fact that work is specialized or nonspeeialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal’s direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal’s trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.

^Construing the 1989 version of La. R.S. 23:1061, the Louisiana Supreme Court in Kirkland v. Riverwood Int’l USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329, held that to determine whether contract work is a part of the alleged principal’s trade, business, or occupation, such that the principal will be considered a statutory employer, the trial court must consider “all pertinent factors under the totality of the circumstances.” Kirkland, 95-1830 at p. 14, 681 So.2d at 336. Among the factors to be considered in determining whether a statutory employment relationship exists are the following:

(1) The nature of the business of the alleged principal;
(2) Whether the work was specialized or non-specialized;
(3) Whether the contract work was routine, customary, ordinary, or usual;
(4) Whether the alleged principal customarily used his own employees to perform the work, or whether he contracted out all or most of such work;
(5) Whether the alleged principal had the equipment and personnel capable of performing the contract work;
(6) Whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work;
(7) Whether the direct employer of the claimant was an independent business enterprise who insured his own workers and included that cost in the contract; and
(8) Whether the principal was engaged in the contract work at the time of the incident.

Kirkland, 95-1830 at pp. 14-15, 681 So.2d at 336-337.

14Applying the Kirkland test, we found in Dominio I that summary judgment was inappropriate because of the existence of the following genuine issues of material fact:

• The nature of the direct employer’s— T.T.C.’s and Arcadian’s — business. See Oubre v. Union Carbide Corp., 99-63 (La.App. 5 Cir. 12/15/99), 747 So.2d 212 (requiring consideration of the nature of the business of not only the principal, but also the direct employer).
• Whether Mr. Dominio’s work was specialized or unspecialized given that he possessed a commercial driver’s license (“CDL”).
• Whether Folger had equipment and personnel capable of performing the contract work.
• Whether those in similar businesses normally contract out this type of work or whether they have their own employees perform the work.

In June 2007, Mr. Dominio and T.T.C. filed a motion for summary judgment on the basis that Folger could not meet its burden of proving at trial its affirmative defense that it was Mr. Dominio’s statutory employer. Denying the motion, the trial court reasoned that there were issues regarding whether a contract existed between Folger and Mr. Dominio’s direct employer and whether a sufficient number of the Kirkland factors were met. Mr. Dominio and T.T.C. filed an application for supervisory writ, which this court denied. Dominio v. Folger Co., 07-1353 (La.App. 4 Cir. 1/16/08).

In June 2008, a three-day bench trial was held in this case. At trial, Mr. Domi-nio testified that Arcadian initially hired and paid him; however, after the first year, he began receiving his paychecks from T.T.C. Mr. Dominio further | ^testified that he was paid by the load ($25 per load). Arcadian required that he have a CDL license, which is the equivalent to a commercial driver’s license. Arcadian dispatched him not only to Folger, but also to other companies. Mr. Dominio had worked for Arcadian for about five and a half years before the accident occurred. On the day of the accident, his job was going back and forth from Folger’s main plant to its depot. The accident occurred at the depot when Mr. Dominio was assisting Folger employees to load coffee into his trailer.

Folger introduced into evidence, in lieu of live testimony, the deposition testimony of T.T.C.’s designated representative under La. C.C.P. art. 1442, Paul Richards. Mr. Richards, an attorney, testified that T.T.C. had been in bankruptcy since September 2001 and that it was no longer in business. He described T.T.C. as a professional employee leasing company (also known as a professional employer organization) that provided essentially payroll processing type services to trucking companies. Since Mr. Dominio was employed by Arcadian when T.T.C. started providing its services to Arcadian, Mr. Dominio was transferred from Arcadian’s payroll to T.T.C.’s payroll, but continued to work for Arcadian. At the time of the accident, Mr. Dominio was on T.T.C.’s payroll, employed by T.T.C., but also employed by Arcadian because he was doing Arcadian’s work. Stated otherwise, for payroll purposes, Mr. Dominio was T.T.C.’s employee; however, he worked for and was employed by Arcadian, T.T.C.’s customer. As Folger points out, Arcadian was Mr. Dominio’s de facto employer; whereas, T.T.C. was his de jure employer.

| pFolger had no contract with T.T.C. Folger’s contractual relationship was with Mr. Dominio’s de facto employer, Arcadian. Folger called two witnesses at trial to address the nature of its contractual relationship with Arcadian, and, as a result thereof, its status as Mr. Dominio’s statutory employer: Bart Blackston and Melinda Umbarger.

Mr. Blackston testified that in 1993 he was Folger’s customer packaging warehouse department manager. Mr. Black-ston explained that although Folger’s main plant had a 120,000 square feet warehouse, it was not large enough to store the quantity of product that the company needed to ship nationally. (He testified that Folger ships about ninety percent of all its product out of its New Orleans site.) To provide additional warehouse space, Folger leased an 80,000 square foot satellite warehouse, which it called the depot. The depot was located about a half a mile west of the main plant. Folger used the depot to house approximately forty percent of its inventory. Mr. Blackston’s responsibilities included managing the depot.

Mr. Blackston’s responsibilities also included managing Folger’s drop lot. He explained that the drop lot, which by agreement with Arcadian was located at Arcadian’s yard, was put into place to expedite the process of moving product from the main plant to the customers by allowing for pre-loading of trailers. The preloaded trailers were placed on the drop lot, which allowed customers to pick up |7their loads at the drop lot. The drop lot thus avoided customers having to wait for their loads at the main plant.

Mr. Blackston testified that Mr. Domi-nio frequently worked as a shuttle driver. Mr. Blackston defined a shuttle driver as an “individual that moved trailers back and forth between the Gentilly warehouse [Fol-ger’s main plant] and the depot, the depot and the drop lot, and the drop lot to Gentilly.” He noted that this route was akin to an intra-company triangle and that “the shuttle driver moved throughout that triangle to make the business work.” He testified that Arcadian was critical to Fol-ger’s day-to-day business operations and that Mr. Dominio, as an Arcadian employee, likewise was critical to Folger’s operations and part of its business.

Folger’s second witness on the statutory employment issue was Ms. Umbarger. Ms. Umbarger testified that Folger is a wholly owned subsidiary of Proctor and Gambel (“P & G”). In 1993, Ms. Umbar-ger was employed at P & G’s headquarters in Cincinnati, Ohio, as site transportation leader for Folger’s New Orleans plant. In that position, she purchased all of the finished product transportation services, which included warehousing services, drop lot services, and over-the-road movement of the product. Ms. Umbarger testified that she managed the movement between Folger’s warehouse locations to make P & G’s business more efficient and profitable. She explained that logistics — -which means movement management — has to do not only with information flow, but also with Isproduct flow. Part of her role as a logistics manager was to make sure the product reaches the shelf.

Ms. Umbarger, tracking Mr. Blackston’s testimony, defined the depot as an additional satellite warehouse that Folger uses because the main plant facility has only a small warehouse. She defined the drop lot as simply another warehouse where the company stores loaded and unloaded trailers. She testified that the drop lot served the function of making the company more efficient in loading at the plant and that “[o]wnership of the product remains with Proctor and Gambel until that load moves off the drop lot.” She distinguished a shipment from a move. She defined a move • as taking place within the intra-company triangle of Folger’s plant, its depot, and its drop lot. Whereas, she defined a shipment as an over-the-road move of the product to a customer distribution center.

Ms. Umbarger acknowledged that in 1993 Folger owned no trucks or trailers and employed no truck drivers. Thus, in order to move product between the main plant, the depot, and the drop lot she had to purchase shuttle transportation services. In 1993, Folger contracted with Arcadian for such shuttle transportation services. Ms. Umbarger clarified that Folger had two separate contracts with Arcadian: a transportation contract and a drop lot contract. The transportation contract was to proride over-the-road services to deliver the product to third parties. The drop lot contract was to provide shuttle services between Folger’s main manufacturing plant, its depot warehouse, and its drop lot. At the time of the accident, Mr. Dominio was employed by Arcadian as a shuttle driver providing Udrop lot services to Folger. The relevant contract for purposes of this case is thus the drop lot contract. Ms. Umbarger testified that at the time of the accident a written drop lot contract existed between P & G (Folger) and Arcadian and that she managed the drop lot contract from P & G’s headquarters. She acknowledged that the written contract was destroyed by P & G’s administrative personnel as a part of the company’s routine annual records retention program.

Following the trial, the trial court took the matter under advisement. In June 2009, the trial court rendered judgment finding Folger to be Mr. Dominio’s statutory employer and thus immune from tort liability. This appeal followed.

DISCUSSION

Folger, who asserted as an affirmative defense its immunity from tort liability, bore the burden of proving by a preponderance of the evidence its entitlement to the immunity. Rowe v. Northwestern Nat’l Ins. Co., 471 So.2d 226, 228 (La.1985). The trial court found, after a bench trial, that Folger met its burden of proof. Mr. Dominio and T.T.C. contend that the trial court legally erred in finding Folger met its burden. The initial issue we must address is the applicable standard of review of the trial court’s finding.

Because the issue of statutory employment status is generally decided in the context of a motion for summary judgment, there is scant jurisprudence addressing the standard of review of a trial court’s finding after a trial on the merits of statutory employment status. See Brewton v. Underwriters Ins. Co., 02-2852, p. 5, |inn. 2 (La.6/27/03), 848 So.2d 586, 589 (observing that typically such employment status issues are resolved by pre-trial motion).

The issue of statutory employment status is a mixed question of law and fact. William E. Crawford, 12 La. Civil Law Treatise, Tart Law § 27:51 (2d ed.2009); Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 899, 224 S.E.2d 328, 324 (1976)(noting that issue of whether an independent contractor’s activities constitute a part of an owner’s trade, business, or occupation is a mixed question of law and fact that must be resolved in light of the facts and circumstances of each case). In Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362, 364, the Louisiana Supreme Court held that the manifest error standard of review is the proper standard to be applied to the mixed question of law and fact presented by a determination of whether a defect presents an unreasonable risk of harm. In so holding, the Supreme Court reasoned:

Because a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference.

| iiId. Similar logic dictates that the manifest error standard of review is the proper standard to be applied to the determination of statutory employment status under the Kirkland test.

In the Kirkland case, the Louisiana Supreme Court held that “[o]nce the Legislature declared in 1989 that no single factor is determinative, the fact-based nature of the inquiry virtually necessitates a multi-factored, case-by-case factual inquiry under the totality of the circumstances.” Kirkland, 95-1830 at p. 15, 681 So.2d at 337. Given the fact-intensive nature of the multi-factored Kirkland test coupled with the less-than-scientific nature of the “part of his [the principal’s] trade, business, or occupation” standard under La. R.S. 23:1061, we find the applicable standard of review is the manifest error standard. See Dupre v. Exxon Pipeline Co., 93-1528, p. 5 (La.App. 3 Cir. 6/1/94), 638 So.2d 1118, 1121 (citing Lewis v. Exxon Corp. 441 So.2d 192 (La.1983), for the proposition that a trial court’s finding on the question of statutory employment is a factual one that should not be disturbed on appeal absent manifest error); H. Alston Johnson, 13 La. Civil Law Treatise: Workers’ Compensation Law and Practice, Malone & Johnson § 126 (3rd ed.l994)(noting that “the question of whether the work performed by the contractor is part of the principal’s business is of course one of fact, which in debatable situations involving a tort claim is an issue for the jury’s determination”).

In finding Folger to be Mr. Domi-nio’s statutory employer, the trial court in its reasons for judgment made the following factual findings:

|12* Folger was in the business of manufacturing, shipping, distributing, and selling coffee. Ms. Umbarger, Fol-ger’s site transportation manger, purchased transportation services to move the “finished product” to its ultimate destination.
• Mr. Dominio’s work was specialized because the transportation of Folger’s products required him to possess a commercial driver’s license (CDL) — a level of skill, training, and experience not normally possessed by those other than motor carriers.
• The transportation services performed by Mr. Dominio, under his contract, were routine and ordinary. Mr. Domi-nio was responsible for moving trailers between the Folger warehouse, depot, and drop lot. For several years, Mr. Dominio delivered and received loads at the Folger depot — moving approximately ten to fifteen loads per day. Mr. Dominio’s contract required him to transport trailers filled with coffee to long-haul drivers that later transported Folger’s coffee in interstate commerce.
• Folger did not possess the trucks necessary or directly employ truck drivers to transport their coffee through their plant-centered triangle. When Folger needed product transportation services, they contracted with Arcadian to handle their drop-lot operations, warehouse services, and their over-the-road movement. Folger contracted out its transportation services in order to reduce non-value added costs and to improve efficiency at its loading plants. According to Ms. Umbarger, it was common within the industry to contract out this process.
• Mr. Dominio was a direct employee of T.T.C., on loan to Arcadian. T.T.C. was a professional employer organization that provided workers’ compensation insurance for its employees. T.T.C. passed the cost of this insurance on to Arcadian in their contract and Arcadian, in turn, charged Folger a fixed cost to cover workers’ compensation insurance.
• At the time of the accident, Mr. Domi-nio was assisting Folger employees to load coffee into his trailer. Mr. Domi-nio was injured at a Folger warehouse when he tripped attempting to move out of the way of a moving forklift.

Considering the above factual findings, the trial court determined that under the totality of circumstances Mr. Dominio was Folger’s statutory employee. The trial court reasoned that “after comparing the nature of the contracted work with the routine and customary process by which Folger transported their products, and the prevailing industry custom, it was clearly shown at trial that Mr. Dominio’s work was part of Folger’s trade, business, or occupation.”

| |oOn appeal, Mr. Dominio and T.T.C. contend that the trial court factually and legally erred in its application of the Kirkland test. They contend that the proper analysis under the • Kirkland test is twofold. First, the facts regarding each factor must be examined and a determination made as to whether each factor supports or negates a statutory employment relationship. Second, the factors supporting a statutory employment relationship must be weighed against the factors negating such a relationship. They contend that the following six of the eight Kirkland factors negate a statutory employer relationship: factor 1 — Folger’s business is the manufac-taring of coffee, not transportation; factor 2 — Mr. Dominio was performing specialized work; factor 3 — the contract work performed by Mr. Dominio was not routine, customary, ordinary, or usual; factor 4 — Folger did not customarily use its own employees to perform the contract work of transportation; factor 5 — Folger had neither the equipment nor personnel capable of performing the contract work; and factor 8 — Folger was not engaged in the contract work of transportation at the time of the incident. As to the other two factors, they contend there was no conclusive evidence presented at trial: factor 6 — that similar business normally contract out transportation work; and factor 7 — that Arcadian passed along the cost of workers’ compensation insurance to Folger.

Under the Kirkland test the question of whether the work being performed by the employee of the subcontractor was part of the alleged principal’s trade, business, or occupation is the central issue. Janes v. Vela’s Garage & Rental Inc., 97-2486, pp. 4-5 (La.App. 4 Cir. 5/27/98), 717 So.2d 246, 248. The Kirkland test is based on the totality of the circumstances taking into consideration all pertinent factors. The eight enumerated factors are not exclusive. “The presence or absence of any one factor is not determinative, and the presence of one factor may 114compensate for the lack of another.” Kirkland, 95-1830 at p. 14, 681 So.2d at 336. Thus, the resolution of statutory employment status under the Kirkland test does not, as Mr. Dominio and T.T.C. suggest, turn on a numerical count of how many of the eight enumerated factors support or negate statutory employment status.

The trial court found the nature of Fol-ger’s business encompassed the manufacturing, shipping, distributing, and selling coffee. The record supports this finding. Ms. Umbarger testified that the manufae-taring of coffee brought Folger into the warehousing and shipping business because once the coffee was packed Folger needed to store it before it was shipped to the customer. Folger’s main plant lacked sufficient warehouse space. Folger thus needed to move its product on a regular basis within its intra-company triangle — its main plant, depot, and drop lot. To do so, Folger contracted with Mr. Dominio’s de facto employer, Arcadian for this transportation service.

Insofar as the nature of the direct employer’s business, Mr. Dominio’s de jure employer, T.T.C., was as an employee leasing company. It is undisputed that Folger had no contract with T.T.C. and that T.T.C. leased Mr. Dominio to Arcadian.

The trial court found Mr. Dominio’s work specialized because the transportation of Folger’s products required him to possess a commercial driver’s license (CDL) — a level of skill, training, and experience not normally possessed by those other than motor carriers. The trial court nonetheless found that the contract work was routine, customary, ordinary, or usual. Both sides suggest the trial court’s findings on these two factors were inconsistent. See Jackson v. Latini Machine Co., 960 F.Supp. 1043, 1048 (E.D.La.1997)(de-fining “specialized” in this context to mean “work done apart from the principal’s usual trade, business, or | ^occupation.”) An analysis of the nature of the work Mr. Dominio was providing establishes that the trial court’s findings on these two factors can be reconciled.

“Delivery and transportation cases turn largely on common-sense considerations of whether the delivery activity was routine or extraordinary for this type of business.” 4 Larson’s Workers’ Compensation Law § 70.06[8] (2009). Folger was in the business of manufacturing coffee. “The ordinary rule is that a manufacturer’s business ceases with the manufacture of the good, that the trucker who picks up the finished good for delivery to one or more of the manufacturer’s customers is not the statutory employee of the manufacturing firm.” Larson’s, supra. The ordinary rule is in-apposite because Mr. Dominio’s work did not include delivering Folger’s coffee over-the-road to the customer. Rather, Mr. Dominio’s work pursuant to the drop lot contract involved routinely driving between three very specific points: Folger’s main plant, its depot, and its drop lot. As the trial court noted, Mr. Dominio averaged ten to fifteen loads a day at the depot.

Folger’s business included not only manufacturing, but also warehousing its product. At the time of the accident, Folger’s warehousing operation was managed by both a local manager, Mr. Blackston, and a corporate headquarters manager, Ms. Um-barger. Both of these managers testified at trial regarding the routine nature of the transportation services Mr. Dominio provided to Folger pursuant to the drop lot contract with his de facto employer, Arcadian. Common-sense considerations support the trial court’s conclusion that such intra-company transportation service, involving the shuttling of a company’s goods from one company warehouse site to another, was a regular part of Folger’s business.

Folger concedes that at the time of the accident it had neither the equipment nor the trained employees (truck drivers having a CDL) to perform the | ^transportation work at issue. Mr. Domi-nio and T.T.C. contend that Folger’s lack of its own employees capable of performing the transportation work at issue precludes a finding of statutory employment. In support, they cite language from a footnote in Kirkland that the true test for statutory employment is “whether this indispensable activity is, in that business, normally carried on through employees rather than independent contractors,” Kirkland, 95-1880 at p. 14, n. 14, 681 So.2d at 336. We disagree.

In 1989, the Legislature expressly provided that a finding of statutory employment is not precluded “regardless of whether the principal has the equipment or manpower capable of performing the work.” La. R.S. 23:1061 (1989 version); see also Cantrell v. BASF Wyandotte, 506 So.2d 793 (La.App. 1st Cir.1987)(affirming finding of statutory employment status despite that the specific job done by security guard had always been contracted out). Ms. Umbarger testified that it was more efficient for Folger to contract out these services. Ms. Umbarger further testified that Folger contracted out these services to reduce costs and for efficiency reasons. Ms. Umbarger still further testified that other companies in the industry contract out this type of work.

The trial court found that T.T.C. passed the cost of the workers’ compensation insurance on to Arcadian as part of their contract; and Arcadian, in turn, charged Folger a fixed cost to cover workers’ compensation insurance. The record supports this factual finding. Mr. Richards, T.T.C.⅛ designated representative, testified that the costs of workers’ compensation insurance would have been one of the items that T.T.C. passed on to its customer, Arcadian. Ms. Umbarger testified that she negotiated the drop lot contract with Arcadian and that she therefore knew that Arcadian charged their insurance costs, including workers’ | ^compensation costs, to P & G. Although the written contract could not be produced at trial because it had been destroyed, Ms. Umbarger testified that she was sure the contract provided for the workers’ compensation cost. She explained that all of Folger’s vendors were required to provide certificates of insurance on a regular basis. If a vendor had failed to provide such certifícate of insurance, she could have nullified the contract with them. She testified that this was never an issue with Arcadian.

Folger was engaged in the contract work at the time of the incident. The accident occurred when Mr. Dominio was assisting Folger employees to load coffee into his trailer. At that time, Mr. Dominio was helping his de facto employer, Arcadian, perform the contract work of providing drop lot services-moving coffee between Folger’s three warehouse locations: its main plant, depot, and drop lot.

We conclude that the record contains sufficient evidence to support the trial court’s finding that under the Kirkland test — the totality of the circumstances— Mr. Dominio was performing work that was a part of Folger’s business. The trial court’s finding that Folger was Mr. Domi-nio’s statutory employer therefore was not manifestly erroneous.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Although in 1997 the Legislature amended La. R.S. 23:1061, Section 3 of Acts 1997, No. 315 provides that the provisions of the Act, which overruled Kirkland v. Riverwood Int’l USA, Inc., 95-1830 (La.9/13/96), 681 So.2d 329, “shall be applied prospectively only and shall not apply to any cause of action arising prior to the effective date of this Act.”

      . The trial court struck Mr. Dominio’s request for a jury trial. Both this court and the Louisiana Supreme Court denied Mr. Domi-nio’s and T.T.C.’s writ application contesting this ruling. Dominio v. Folger Co., 07-0172 (La.App. 4 Cir. 2/12/07), writ denied, 07-0541 (La.4/27/07), 955 So.2d 697.

      . Mr. Dominio's attorney stipulated that "other companies around the country had drop lots."

      . The jurisprudence has indicated that the determination of statutory employer status is a question of law for the court to decide. See Ramos v. Tulane University of Louisiana, 06-0487, p. 3 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267, 1269 (citing Trent v. PPG Indus. Inc., 03-1068, p. 7 (La.App. 3 Cir. 2/4/04), 865 So.2d 1041, 1047); Prejean v. Maintenance Enterprises, Inc., 08-0364, p. 5 (La.App. 4 Cir. 3/25/09), 8 So.3d 766, 769 (citing Ramos, supra). This statement, as Folger points out, can be traced to the holding in Lemaire v. CIBA-GEIGY Corp., 99-1809, pp. 10-11 (La.App. 1 Cir. 6/22/01), 793 So.2d 336, 346, that the question of statutory employer status is a legal one for the trial judge, not the jury to decide. The Lemaire court based its holding on La. C.C.P. art. 1732, which provides that a jury trial is unavailable in a workers’ compensation case. The Louisiana Supreme Court in Brewton v. Underwriters Ins. Co., 02-2852 (La.6/27/03), 848 So.2d 586, overruled Le-maire and held that disputed issues of employment status in a tort suit filed in district court are for the jury to decide. The Trent case, cited in Ramos, supra, and Prejean, supra, simply quoted the language from the Lemaire case.


author: MARC E. JOHNSON, Judge.

text:
    Gary FLORREICH v. ENTERGY CORPORATION, Entergy Services, Inc. and Lawrence Hamric.
    No. 09-CA-414.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2010.
    Rehearing Denied April 6, 2010.

      George F. Riess, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Richard C. Stanley, Suzanne K. Scalise, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Plaintif'f/AppeIlant appeals the denial of his Motion to Set Aside Order to Dismiss Suit on Grounds of Abandonment and the denial of his Motion for New Trial from the 24th Judicial District Court, Parish of Jefferson, in favor of Defendants/Appel-lees, Entergy Corporation, Entergy Services, Inc., and Laurence Hamric. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from an action for damages for alleged age-related employment discrimination, which was filed on April 1, 1996. On February 29, 2008, Defendants filed an Ex Parte Motion and Order to Dismiss Suit on Grounds of Abandonment averring that Plaintiff had not taken any steps to prosecute or defend the suit between February 2, 2005 and February 2, 2008. The trial court signed the order on March 4, 2008 and dismissed Plaintiffs case.

In response to the dismissal, Plaintiff filed a Motion to Set Aside Order of Dismissal with the trial court. A hearing was held on the motion to set aside on 13 July 24, 2008. The trial court subsequently rendered a judgment denying the motion on July 31, 2008, and issued reasons for judgment. The trial court concluded that the record clearly showed the case was abandoned, and Plaintiff failed to carry the burden of proof necessary to overcome the dismissal of the suit on abandonment. Plaintiff filed a Motion for New Trial on August 12, 2008 alleging that a new trial should be granted because of Plaintiffs newly-discovered evidence. The motion was heard on January 5, 2009 and was denied on January 15, 2009. From these judgments, Plaintiff filed the appeal before this Court.

ASSIGNMENTS OF ERROR

Plaintiff appeals and assigns the following as errors: 1) the trial court erred in denying Plaintiffs Motion to Set Aside the Ex Parte Order of Dismissal on Grounds of Abandonment; 2) the trial court erred in finding that Plaintiff failed to carry the burden of proof necessary to overcome the dismissal of his suit for abandonment; 3) the trial court erred in its finding that “this case was abandoned” on the basis of its “review of the record,” which was a clear legal error; 4) the trial court erred in denying Plaintiffs Motion for New Trial; and, 5) the trial court erred in its failure to consider the extrinsic evidence introduced at the hearings, and in its ignoring of the affidavit of Sue A. Robichaux, it failed to consider newly discovered evidence submitted in support of Plaintiffs Motion for New Trial.

LAW AND ANALYSIS

Trial CouH’s Review of the Record

Plaintiff alleges that the trial court committed a legal error in its finding that the case was abandoned on the basis of its “review of the record.” In the “Judgment and Reasons for Judgment” on the Motion to Set Aside the Ex PaHe Order of Dismissal on Grounds of Abandonment, the trial court reasoned, “A review of the record clearly shows this case was abandoned.”

|4It is well-settled that a Court of Appeal may not set aside a trial court’s or a jury’s finding of in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541(La.2/6/98); 708 So.2d 731, 735 citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Evans v. Lungrin, 708 So.2d at 735. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 708 So.2d at 735.

Any formal discovery served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. LSA-C.C.P. art. 561(B); Padua v. Gray, 08-0582 (La.5/16/08); 980 So.2d 699.

According to the “Judgment and Reasons for Judgment” by the trial court, the decision was based upon a review of the record. The record reviewed by the trial court was not entirely indicative of whether or not the case was abandoned because it did not include the additional discovery exchanged between the parties. Because we find that the trial court committed a legal error in this respect, we have conducted a de novo review of the record.

Denial of the Motion to Set Aside and the Burden of Proof

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. LSA-C.C.P. |sart. 561(A)(1). Abandonment shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. LSA-C.C.P. art. 561(A)(3).

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact. Dunn v. City of Kenner, 08-378 (La.App. 5 Cir. 3/26/09); 11 So.3d 1115, 1117 citing Lyons v. Dohman, 07-0053 (La.App. 3 Cir. 5/30/07); 958 So.2d 771, 774. The Louisiana Supreme Court has held that LSA-C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit and abandonment is not meant to dismiss actions on mere technicalities but to dismiss actions which have been clearly abandoned. Id.

LSA-C.C.P. art. 561 has been construed as imposing three requirements on plaintiffs: 1) plaintiffs must take a “step” towards prosecution of their lawsuit, 2) the step must be taken in the proceedings, and with the exception of formal discovery, must appear in the record of the suit, and 3) the step must be taken within the legislatively prescribed time period of the last step taken by either party. Brown v. Michaels Stores, Inc., 07-772 (La.App. 5 Cir. 2/19/08); 980 So.2d 62 citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01); 785 So.2d 779, 783-784.

Plaintiff argues that the denial of his Motion to Set Aside Order of Dismissal by the trial court was an error of law because he had taken steps in prosecution or defense of the suit between February 2, 2005 and February 2, 2008. Plaintiff specifies that he introduced the following documents as evidence of steps taken in prosecution of the case at the hearing for his motion: A) correspondence dated February 16, 2005 from Defendants, in which Defense counsel advised that an Ex\fíParte Motion to Compel Discovery was set for February 23, 2005; B) correspondence dated April 12, 2005 from Defendants, in which Defense counsel advised that a discovery hearing intended to be set for April 13, 2005 had been continued without date; C) responses to Defendants’ discovery by Plaintiff served by mail upon Defendants on May 18, 2005 with the certificate of service signed by undersigned counsel; D) draft responses for discovery from Plaintiff faxed to Plaintiffs counsel on March 2, 2005 from which the formal responses served upon Defendants were prepared; E) the cover letter signed by Plaintiffs counsel transmitting the discovery responses; and, F) an affidavit by Plaintiffs counsel.

We will now evaluate each of the documents submitted by Plaintiff as proof of interruption of abandonment.

Discovery Responses and Affidavit

Plaintiff submitted two copies of the responses to Defendants’ discovery requests, one signed and one unsigned. The unsigned copy of the responses was submitted with the original memorandum in support of the Motion to Set Aside Order of Dismissal. Defendants raised the argument in their opposition memorandum that unsigned copies of the responses could not be constituted as a step in the prosecution of the litigation. Subsequently, Plaintiff filed a supplemental memorandum whereby he submitted a copy of the signed discovery responses. In Plaintiff’s Response to Defendants’ Opposition to Motion to Set Aside Order of Dismissal, Plaintiff submitted an affidavit by Plaintiffs counsel verifying that he entrusted the physical mailing of the responses to the U.S. Postal 17Service and his clerical assistant, and he was unable to locate his pre-Hurricane Katrina secretary.

Every discovery response made by a party represented by an attorney shall be signed by at least one attorney of record in his individual name. See LSA-C.C.P. art. 1420(A). If the discovery response is not signed, it shall be stricken, and the opposing party shall not be obligated to take any action with respect to the response. See LSA-C.C.P. art. 1420(C).

The burden rests on the party attacking the service of process to establish the lack of service by clear and convincing evidence and not by a mere preponderance of the evidence. Fanguy v. Pumilia, 498 So.2d 71, 73 (La.App. 5 Cir.1986), citing Canterberry v. Slade Brothers, 232 La. 1081, 96 So.2d 4 (La.1957).

Because the original copy of the discovery responses was unsigned by Plaintiffs counsel, it was null and void and could not be used as evidence of mail service to Defendants. The signed copy of the discovery responses subsequently submitted by Plaintiff would have been sufficient to serve as proof of mailing, absent the accompanying affidavit of Plaintiffs counsel. The affidavit that was submitted provided clear and convincing evidence that Plaintiffs counsel did not physically mail discovery responses to Defendants. As a result, Plaintiff rebutted his own certificate of service. Therefore, we find that the neither the unsigned copy nor the signed copy of discovery responses interrupted abandonment of the case.

Draft, Responses from Plaintiff

Plaintiff submitted draft responses to Defendants’ discovery request from which the formal responses were drafted as evidence of the interruption of abandonment. These responses in no way serve as an interruption of abandonment because they were not alleged to have been served on Defendants.

[ aCorrespondences from Defendant

Plaintiff submitted a facsimile dated February 16, 2005 from Defense counsel advising that an Ex Parte Motion to Compel Discovery was set for February 23, 2005, another facsimile dated April 12, 2005 from Defense counsel advising Plaintiff that a discovery hearing intended to be set for April 13, 2005 had been continued without date, and a cover letter signed by Plaintiffs counsel transmitting discovery responses.

The service of informal correspondence which does not facilitate the judicial resolution of the dispute on the merits cannot be construed as formal discovery and is insufficient to prevent abandonment or interruption of prescription in relationship to LSA-C.C.P. art. 561. See Alexander v. Liberty Terrace Subdivision, Inc., 99-2171 (La.App. 4 Cir. 4/12/00); 761 So.2d 62, 65.

It is the qualitative effect of the steps taken by a defendant which must be considered in a case-by-ease approach to determine whether the defendant has waived abandonment. Bell v. Kreider, 04-594 (La.App. 5 Cir. 11/30/04); 890 So.2d 648, 651, citing Gallagher v. Cook, 34,158 (La.App. 2 Cir. 12/15/00); 775 So.2d 79, 83. Steps which have facilitated judicial resolution of the dispute on the merits and which could be construed as an expression of a defendant’s willingness or consent to achieve judicial resolution of the dispute are legally operative to preclude him from raising the claim of abandonment. Id.

There are two jurisprudential exceptions to the abandonment rule: 1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and, 2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Lion InvestBanc Corp. v. River Products, Inc., 02-481 (La.App. 5 Cir. 10/29/02); 831 So.2d 500, 502 citing Clark, 00-3010, 785 So.2d at 784-785.

Of the correspondences submitted, we do not consider the April 12, 2005 facsimile or the cover letter to be sufficient evidence to interrupt abandonment. However, the facsimile dated February 16, 2005 can be distinguished from the other informal correspondences. The February 16, 2005 facsimile from Defense counsel, when viewed in conjunction with the Ex Parte Motion to Set Motion to Compel for Hearing and Incorporated Request for Expedited Consideration filed by Defendants on February 2, 2005, was a step in the defense of the suit. This facsimile facilitates judicial resolution of the Motion to Compel on the merits which expresses Defendants’ willingness to achieve judicial resolution. As a result, we find that the February 16, 2005 facsimile interrupted abandonment. Because of this step, we find that the abandonment period commenced on February 16, 2005, not February 2, 2005 as asserted by Defendants.

Extrinsic Evidence and Denial of Motion for New Trial

Plaintiff alleges that the trial eourt erred in failing to consider the extrinsic evidence introduced at the hearings , and by ignoring the affidavit of Sue A. Robichaux (Ms. Robichaux), it failed to consider newly discovered evidence submitted in support of Plaintiffs Motion for New Trial. The affidavit of Ms. Robi-chaux, the pre-Hurricane Katrina secretary for Plaintiffs counsel, verified that she vividly recollected mailing the discovery responses to Defendants on May 18, 2005.

From review of the record, the trial court denied the Motion for New Trial without providing written or reasons for the judgment. As a result, it is unclear to this Court as to whether the trial court considered the affidavit of Ms. Robichaux. | ipHowever, we will address the issue as to whether the affidavit of Ms. Robichaux was newly-discovered evidence warranting a new trial.

Granting or denying a motion for new trial rests within the wide discretion of the trial court, and its determination shall not be disturbed absent an abuse of that discretion. Gereighty v. Fox, 09-395 (La.App. 5 Cir. 11/24/09); 28 So.3d 1143 citing Engolia v. Allain, 625 So.2d 723, 729 (La.App. 1 Cir.1993).

A motion for new trial on the basis of newly-discovered evidence should be granted if the movant proves the following: 1) that the evidence was discovered after the trial, 2) that the new evidence is not cumulative, 3) that the new evidence would tend to change the result of the case, and 4) that the new evidence could not have been discovered, with due diligence before the trial was completed. Odom v. Phillips, 06-1634 (La.App. 4 Cir. 1/9/08); , 33 So.3d 178, 2008 WL 240272 citing Harris v. Orleans Parish School Board, 97-0724 (La.App. 4 Cir. 1/28/98); 706 So.2d 223, 225.

Here, Plaintiff’s counsel argues that Ms. Robichaux’s affidavit is newly-discovered evidence because she could not be found prior to the trial on the motion to set aside, which was partially due to his medical condition that interferes with his ability to use a computer. Plaintiffs counsel avers that he had lost his records during Hurricane Katrina and had searched the Yellow Pages and the White Pages to no avail. He was finally able to locate Ms. Robi-chaux’s address through his certified public accountant (CPA). Plaintiffs counsel further avers that he was able to locate a telephone number for Ms. Robichaux following a search by his secretary from the address provided by the CPA.

After consideration of Plaintiffs counsel’s medical condition and all of the efforts made to locate Ms. Robichaux, we find that due diligence was not | ^sufficiently used to locate her. A copy of the August 2007-August 2008 “The Real White Pages” telephone book was submitted that listed Ms. Robichaux’s correct address. The trial on the motion to set aside was heard on July 24, 2008. The information that was provided to Plaintiffs counsel by his CPA could have been located prior to the trial for the motion to set aside. Therefore, we do not find that the affidavit of Ms. Robichaux was not newly-discovered evidence warranting a new trial. Additionally, we do not find that the trial court erred in denying Plaintiffs Motion for New Trial.

CONCLUSION

For the foregoing reasons, we find that the abandonment period commenced on February 16, 2005. Additionally, we find that the case was abandoned on February 16, 2008, due to the lack of steps in prosecution or defense of the case. The judgment dismissing the case was signed on March 4, 2008, and by that time, abandonment had occurred by operation of law. The judgments of the trial court are affirmed. Appellant is to bear the costs of this appeal.

AFFIRMED.

      . These issues are being discussed together because they are interrelated.

      . Plaintiff submitted the signed copies of the responses to Defendants' discovery request in a supplemental memorandum in support of his Motion to Set Aside Order of Dismissal. The copy of the responses to Defendants' discovery request and the certificate of service submitted with his original memorandum were unsigned by Plaintiff's counsel.

      .The cover letter was dated March 18, 2005.

      . The other extrinsic evidence referred to by Plaintiff have already been addressed in this opinion.