author: DREW, J.

text:
    BL, individually and as Natural Tutrix for the minor child, KKG, Plaintiff-Appellant v. CADDO PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 46,557-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by James B. Gardner, for Appellant.
    Dale G. Cox, Jr., Shreveport, LA, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

h Plaintiff, BL, individually and on behalf of her minor child, KKG, appeals a summary judgment which dismissed her negligence claim against the Caddo Parish School Board (“CPSB”). We affirm.

FACTS

In April of 1992, BL gave birth to KKG, who was born 24 weeks before term, with attendant complications associated with his prematurity. KKG suffers learning disabilities, particularly in math and reading.

At age 14, BL enrolled KKG at Caddo Learning Center (“CLC”) for special education classes. Also in attendance at CLC was another 14-year-old student, LNG, who had an extensive disciplinary record.

On October 19, 2006, as was their standard practice, KKG and LNG rode home on a school bus driven by Louis Wilkerson. As usual, they were discharged at the same bus stop. LNG invited KKG to his house so that the boys could exchange video games. KKG accepted the invitation and walked with LNG to his home. After arriving, LNG told KKG he was mistaken and that the video games were at his aunt’s house. On the walk to his aunt’s house, LNG threatened to hit KKG with a brick if he did not do as he was told. LNG then sexually assaulted KKG. Afterwards, KKG ran to his grandmother’s house to tell her of his victimization. The police were called. A rape examination revealed a positive match for LNG’s DNA.

LNG was arrested and adjudicated a delinquent in juvenile court for his conduct.

BL sued CPSB, alleging that had it adequately supervised KKG, the assault could have been prevented. CPSB filed a motion for summary | ¡judgment arguing that its duty and scope of supervision did not extend to criminal acts occurring off campus and after regular school hours.

The trial court asked the parties to particularly address the issue of KKG’s mental status so that it might determine whether CPSB owed KKG a heightened level of supervision. After the parties addressed the issue, the court found no genuine issue of material fact and granted CPSB’s motion.

BL has appealed the trial court’s finding that CPSB owed KKG neither the duty of supervision to protect him from this assault nor a heightened duty of supervision due to his mental situation.

DISCUSSION

Our law on the review of summary judgments is well settled.

Duty to prevent off-campus criminal assault

BL first argues on appeal that CPSB breached its duty of supervision when it failed to prevent the off-campus assault on KKG.

LA school board, through its agents and teachers, owes a duty of reasonable supervision over students. Wallmuth v. Rapides Parish School Bd., 2001-1779 (La.4/3/02), 813 So.2d 341.

The school board is not the insurer of the safety of the children, and constant supervision of all students is neither possible nor required. S.J. v. Lafayette Parish School Bd., 2009-2195 (La.7/6/10), 41 So.3d 1119.

The liability of the school board and its employees for injuries to students exists only when the school board has actual custody of the students entrusted to their care. Cavalier v. Ward, 97-1927 (La.App.1st Cir.9/25/98), 723 So.2d 480, writ denied, 98-2615 (La.12/11/98), 729 So.2d 1047.

School boards are required to exercise and maintain only the supervision that is expected of a reasonable person under the circumstances of the particular case. Rambo v. Webster Parish School Bd., 32,-447 (La.App.2d Cir.10/27/99), 745 So.2d 770, writ denied, 1999-3620 (La.2/18/00), 754 So.2d 971.

In his deposition, KKG gave contradicting statements about previous threats made to him by LNG. At one point he claimed that, prior to the assault, he told his assistant principal that LNG made sexual gestures toward him, but he also said that LNG had never previously threatened him. KKG admitted never feeling intimidated by LNG.

Although BL emailed CLC’s principal about disruptions on KKG’s school bus, she admitted that she never explicitly mentioned LNG’s name. In addition, BL claimed to have spoken with Wilkerson, the bus driver,J^about LNG’s behavior. She never expressed concerns, however, about any aggressive sexual threats made to her son. Wilkerson saw that the two boys were amicable to one another on the bus ride on the day of the crime. We note that KKG went voluntarily with LNG to his house.

LNG’s behavioral history included numerous counts of profane language, willful disobedience, leaving school without permission, and fighting. However, none of the 60 reported offenses involved sexually aggressive behavior.

Even assuming that CPSB was aware or should have been aware of LNG’s disturbing behavioral issues, the location of the attack remains undisputed. Based on our de novo review of this record, we conclude that BL will be unable to satisfy her burden of proof at trial because the CPSB did not owe a duty to KKG under these particular facts. This unfortunate incident occurred sometime after these boys were discharged from the bus at their regular stop. KKG left the school bus, went to his attacker’s home, and then was accompanying his attacker toward another destination when he was victimized. When they left school premises, the school board’s duty to supervise had ceased.

Heightened duty of supervision

BL next argues that the trial court erred in finding that CPSB did not owe KKG a heightened duty of supervision due to his mental acuity.

The supervision required of a school board is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Wallmuth, supra.

| .^Pamela Baker, Director of Special Education Services for the Caddo Parish school system, stated in her affidavit that KKG enrolled in a remediation program at Alexandria Learning Center (“ALC”), where Baker was the principal. She accepted KKG in the program not because he qualified as a special education student, but because his poor math and reading skills put him at risk of dropping out of school. Within two years of enrollment, KKG made up three grade levels. Based on his academic progress, as well as his mental capacity and social behavior during his time at ALC, Baker believed KKG would neither require nor qualify for special education services beyond Section 504 classes.

This record does not support BL’s assertion that KKG had a mental disability which would entitle him to a heightened duty of supervision by CPSB. Though BL claimed in her deposition that numerous doctors had treated her son for his neurological problems, this record contains no expert medical testimony in corroboration of her theory that CPSB owed a heightened duty of supervision to the young man.

CONCLUSION

The duty owed by CPSB to protect KKG did not extend to a sexual assault committed after the victim and assailant had been discharged from school for the day and which took place away from the school campus. At the cost of BL, the summary judgment is AFFIRMED.

      . A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id. A motion for summary judgment will be granted if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
      The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966(C)(2):
      The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

      . See 45 C.F.R. § 84.3


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Nancy P. COUNCIL, Plaintiff-Appellant v. FEDEX CUSTOM CRITICAL, INC., Defendant-Appellee.
    No. 46,558-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      John S. Stephens, for Appellant.
    Leake & Anderson, LLP, New Orleans, LA, by Dean M. Arruebarrena, Donald E. McKay, Jr., for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   MOORE, J.

| j Nancy Council appeals a judgment sustaining an exception of no right of action and dismissing her workers’ compensation claim against her alleged employer, FedEx Custom Critical. We affirm.

Factual and Procedural Background

Ms. Council and her husband had worked in trucking since the late 1980s. In 2007, they called a recruiter for FedEx Custom Critical (“FedEx”) who gave them names of independent contractors who supplied trucks and drivers for FedEx. Ms. Council testified that she called SB Transports, one of the contractors, who hired them. They drove to Atlanta, Georgia, to pick up a truck, and then to Akron, Ohio, to attend an orientation conducted by FedEx, took a physical and drug tests, and received a certificate.

The Councils, however, never signed any contract with FedEx; instead, they signed an “Independent Contractor Agreement” with SB Transports, designating them as independent contractors and obligating them to SB Transports’ “Agreement for Leased Equipment and Independent Contractor Services” with FedEx. The latter agreement stated that neither SB Transports nor any of its employees or agents shall be considered employees of FedEx.

Ms. Council testified that her truck bore the FedEx logo, she had to wear a FedEx shirt, was in constant radio contact with FedEx, drove for nobody but FedEx, received “suggested routes” for all loads, and although she had the option to decline any load, she understood that if she declined three in a row, SB Transports would terminate her.

]2On January 15, 2008, Ms. Council and her husband were loading their truck with electronics equipment when she injured her back. She testified that as a result of this injury, she will never be able to drive a truck again.

In March 2008, she filed this disputed claim for compensation against FedEx and SB Transports. Both defendants filed exceptions of “no cause of action and/or no right of action,” and FedEx’s exception was tried in May 2009. Ms. Council testified as outlined above; also, the parties introduced paperwork documenting their relations. The WCJ found the overall facts suggested an employment relationship, so he denied FedEx’s exception.

Less than two weeks later, FedEx filed a motion for new trial, urging that its counsel “just became aware of a directly applicable and dispositive statute,” La. R.S. 28:1021(10), which was not previously brought to the WCJ’s attention. Paragraph (10) was added to the “terms defined” section in 2004 and provides (with emphasis added):

(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common earner or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.

IsFedEx argued that Ms. Council has no contract with FedEx, only one with SB Transports identifying her as an independent contractor; and SB Transports had a contract with FedEx stating that none of its employees or agents were employees of FedEx. FedEx concluded that R.S. 23:1021(10) defeated Ms. Council’s right of action.

Ms. Council opposed the new trial, urging that a literal reading of § 1021(10) would overturn the reality of the relationship and open the door to fraudulent abuse by carriers who operated strictly through independent contractor agreements. Citing Rush v. Employers Nat’l Ins. Co., 598 So.2d 603 (La.App. 4 Cir.), writ denied, 605 So.2d 1364 (1992), and Fuller v. U.S. Aircraft Ins. Group, 530 So.2d 1282 (La.App. 2 Cir.), writ denied, 534 So.2d 444 (1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989), she argued that the “right of control” analysis fully supported the WCJ’s finding of an employment relationship. However, after a hearing in November 2009, the WCJ granted the new trial and asked for additional briefing and evidence.

At the new trial in March 2010, the successor WCJ heard the arguments of counsel and sustained FedEx’s exception, finding that § 1021(10) was clear, unambiguous, and applied to this claim. He rendered judgment dismissing FedEx with prejudice; Ms. Council took this appeal.

The Parties’ Positions

Ms. Council raises two assignments of error: (1) the WCJ erred in sustaining FedEx’s exception of no right of action, and (2) the WCJ erred in Lbasing its decision solely on the strict language of R.S. 23:1021(10), giving no consideration to FedEx’s conduct, interaction and relationship with the claimant driver. She quotes the statute and concedes that, literally applied, it would exclude her claim. She argues, however, that if the common carrier obtains independent contractor agreements with its drivers, then “no action or conduct whatsoever by the common carrier would result in an employer/ employee relationship with the driver.” She reiterates the “right of control” analysis set out in Rush, Fuller, and more recently in Elmore v. Kelly, 39,800 (La.App. 2 Cir. 7/29/05), 909 So.2d 36, and interprets the facts to show that FedEx exercised almost total control over her work performance, making her an employee entitled to compensation. Finally, she suggests it is error for the WCJ to place so much emphasis on the designations in the contracts; she contends the parties’ labels are not dispositive if their actual conduct establishes a different relationship. In support, she cites the California case of Estrada v. FedEx Ground Package Syst., 64 Cal.Rptr.3d 327, 154 Cal.App.4th 1 (2007).

FedEx urges that the court should not disregard a specific, controlling and directly applicable statute, R.S. 23:1021(10), in favor of an analysis based on general principles of case law issued prior to the enactment of the statute. It shows that the superior source of law is the statute itself, La. C.C. arts. 1, 3, and that § 1021(1) is directly applicable and precludes Ms. Council from being considered an employee of FedEx for purposes of workers’ compensation. It contends that the jurisprudence cited by Ms. Council either predated the enactment of § 1021(10) or failed to mention it, Land argues that Estrada is not persuasive because, inter alia, California had no statutory equivalent of § 1021(10). It urges affirmance.

Discussion

The sources of law are legislation and custom. La. C.C. art. 1. Custom may not abrogate legislation. La. C.C. art. 3. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; In re Succession of Faget, 2010-0188 (La.11/30/10), 53 So.3d 414. Courts assume that in enacting a new law, the legislature was aware of the existing law on the same subject. Id. Courts do not rule on the social wisdom of statutes or their workability in practice. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.

Notably, Ms. Council has not alleged that R.S. 23:1021(10) is unconstitutional. Rather, she asks the court to disregard it because it reverses the jurisprudence. We find, however, that § 1021(10) is clear, unambiguous and addresses this situation precisely. Ms. Council meets the definition of an “owner operator” in that she provided “trucking transportation services under written contract to a common carrier, contract carrier * * * which transportation services include the lease of equipment or a driver[.]” She signed an “Independent Contractor Agreement” with SB Transports, clearly identifying her as an independent contractor and stating, | fi“All parties agree at all times to abide by the Agreement for Leased Equipment and Independent Contractor Services as required by FedEx Custom Critical[.]” SB Transports previously executed an “Agreement for Leased Equipment and Independent Contractor Services” with FedEx, which stated in part:

The intention of the parties to this Agreement is to establish a relationship between Owner [SB Transports] and [FedEx] through which Owner, as an independent contractor, (1) leases a vehicle to [FedEx] and (2) renders certain related services to facilitate the transportation of critical shipments of goods to and from [FedEx’s] customers * * *. Neither Owner nor any of its employees or agents shall be considered to be employees of [FedEx] or [FedEx’s] customers at any time, under any circumstances, for any purpose whatsoever, and nothing in this Agreement shall be construed as inconsistent with that relationship.

These passages obviously satisfy the second sentence of the statute: “An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier * * * for purposes of this Chapter if the owner operator has entered into a written agreement with the carrier * * * that evidences a relationship in which the owner operator identified itself as an independent contractor.” In short, the WCJ was neither factually nor legally erroneous in applying § 1021(10) to find that Ms. Council is not entitled to relief under the workers’ compensation law.

We are sensitive to the arguments of counsel and would agree that § 1021(10) now elevates one evidentiary item — a contract designating a trucker as an independent contractor — to exclusive status, disregarding the panoply of factors normally consulted when a court must decide whether a relationship is employment or an independent contract. Traditionally, the | parties’ designation or belief was virtually irrelevant when balanced against the right of control and the financial dynamic of the relationship. Fuller v. U.S. Aircraft Ins. Group, supra; Estrada v. FedEx Ground Package Syst., supra. We also cannot dismiss the possibility that unscrupulous common carriers could skirt their obligations under the workers’ compensation law by executing contracts that comply with § 1021(10) and setting up shadowy middlemen as direct employers. However, we must assume that in enacting § 1021(10) the legislature intended to override prior law with respect to contract truckers. In re Succession of Faget, supra. We will not rule on the social wisdom of the statute or its workability in practice. State v. Smith, supra. The statute governs Ms. Council’s claim and the WCJ did not err in applying it to dismiss the claim.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by Ms. Council in accordance with La. C.C.P. art. 5186.

AFFIRMED.

      . According to FedEx, Ms. Council had insurance coverage for work-related accidents through a "Group Independent Contractor Work Accident Insurance Certificate” and that as of July 2008 she had drawn nearly $10,000 on this policy. R.p. 42.

      . WCJ Ryan Gatti had initially denied the exception of no right of action and granted the motion for new trial; successor WCJ Carey Holliday presided over the new trial.

      . The statute appears to be a purely economic regulation which draws no prohibited or suspect distinctions and does not infringe on fundamental rights guaranteed by La. Const. Art. I, § 3, or the 14th Amendment. Board of Directors v. All Taxpayers, 2005-2298 (La.9/6/06), 938 So.2d 11.

      . We also note that "Appendix I” to the "Agreement for Leased Equipment and Independent Contractor Services” obligated SB Transports to carry stated amounts of disability, medical, accidental death, and contingent workers' compensation coverage, and Ms. Council has not alleged that SB Transports failed to comply.


text:
    Jimmy PATTERSON, Plaintiff-Appellant v. GENERAL MOTORS COMPANY, Defendant-Appellee.
    No. 46,559-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Fischer & Associates, Shreveport, LA, by Mark K. Manno, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, Shreveport, LA, by J. Martin Lattier, Lisa D. Lobrano, for Appellee.
    Before BROWN, STEWART and MOORE, JJ.
   MOORE, J.

| j Jimmy Patterson appeals a judgment rejecting his claim for supplemental earnings benefits (“SEB”), penalties and attorney fees from his employer, General Motors Co. For the reasons expressed, we affirm.

Factual and Procedural History

Patterson went to work for GM in 1981. In June 2006, he was earning $26.68 an hour in the environmental department, cleaning major equipment and sweeping work areas. On June 26, 2006, while he was cleaning a phosphate tank, his coveralls stuck to the roller that moved the assembly line; the machinery somehow activated and wrapped his right leg around the roller. He was trapped for over an hour, with his tibia and fibula sticking out of the skin; when he was finally found, EMTs were certain he would lose his leg. However, after emergency treatment at LSUHSC and surgery at Schumpert to implant a titanium rod, his leg was saved. He then underwent several months of physical therapy until his orthopedist released him to return to work on November 27. GM paid him temporary, total disability (“TTD”) benefits from June 27 through November 27, 2006.

When he returned to work in November 2006, pursuant to UAW contract an ADAPT team met to place Patterson in a job within his physical restrictions and seniority. They placed him in the body shop cleaning, at the same rate of pay. According to Mark Johnson, GM’s labor relations rep, this is a “real” job, not a modified job, and Patterson never complained that he could not perform it. In February 2007, he underwent surgery at Bossier Specialty Hospital to repair his Achilles tendon and treat other effects of the accident. In late April, his orthopedist released him to return to work “with plight duty status”; GM paid TTD for this period. Patterson testified that he is still undergoing pain management and cannot walk, climb or lift as he used to.

When he returned to work in April 2007, the ADAPT team put Patterson back to work in environmental but, this time, he was driving a motorized sweeper. In October 2007, he received a raise to $28.71 an hour. In addition to his hourly wage, from 2005 to 2008, GM was selling a lot of trucks, working extra shifts and offering plenty of overtime. The year before the accident, 2005, Patterson made $104,708; the year after, 2007, he made $92,475, and 2008, $96,927.

According to Mark Johnson, sometime in 2008 the overall economy faltered and GM’s financial condition plummeted. In June 2008, GM eliminated its environmental department, opting to contract these services; later, work was reduced to one eight-hour shift and overtime was virtually abolished. GM kept Patterson to train the contractors, and then moved him to various positions; at trial in September 2010, he was still working in final paint process.

At trial, Patterson complimented GM for always placing him in jobs within his physical restrictions, but complained that he just was not making as much money as he used to, what with limited shifts and nonexistent overtime. He felt that without his injured leg, he would still have these economic options.

In March 2008, a functional capacity evaluation gave him a 33% impairment of his lower right leg and a 13% whole person impairment; in |3January 2009, his orthopedist agreed with these findings.

In 2009, GM announced a series of shutdowns, with the result that for several months nobody worked in production. During this time (through February 2010), Patterson drew $2,661 in unemployment and $11,601 in “SUB pay,” a UAW benefit that pays furloughed workers 90% of their net pay, less a $30 processing charge. Even though his hourly wage was unchanged, Patterson was making much less in 2009 than in earlier years, with the elimination of overtime, the shutdowns, and the modest unemployment and SUB pay.

In September 2009, Patterson filed this disputed claim for benefits, alleging that because of the work-related injury he was no longer able to earn 90% of his pre-injury wage. He demanded SEB of $454 a week, plus penalties and attorney fees. At trial in September 2010, Patterson and GM’s labor relations rep, Mark Johnson, testified as outlined above; the parties also offered various medical and wage records. Patterson argued that his pre-injury average weekly wage was $1,868.21 (over $97,000 annually), and claimed SEB totaling $44,870. GM argued that his wage decline resulted from the distressed economy and GM’s financial straits, not from any work-related disability. Patterson countered that under Allen v. Shreveport, 618 So.2d 386 (La.1993), a “general economic downturn” is not a valid consideration. He also demanded the maximum statutory penalty of $8,000 and an attorney fee of $10,000.

|4In a six-page opinion, the WCJ discussed and distinguished Allen, supra: there, the claimant proved that after his injury, his wages dropped from $12.62 to $3.80 an hour; here, Patterson never sustained a loss of hourly wage. In fact, he earned more after the accident, and the WCJ found his testimony “completely self-serving and lacking in credibility.” Finally, finding that Patterson “has not shown that he could not find employment elsewhere that would be less than 90% of his previous wages with GM,” the WCJ rejected his claim. By supplemental opinion, the WCJ also held that Patterson was paid wages “in excess of his pre-injury wages for more than a two-year period after the end of his period of total permanent disability (November 27, 2006),” so further SEB were barred under R.S. 23:1221(3)(d)(i).

After judgment was rendered, Patterson filed a motion for new trial, which the WCJ denied. This appeal followed.

The Parties’ Positions

By his first three assignments, Patterson contests the denial of his claim for SEB. He first contends the WCJ applied the wrong burden of proof: by requiring him to show “that he could not find employment elsewhere,” the WCJ improperly shifted the burden from the employer to the claimant, contrary to Banks v. Industrial Roofing & Sheet Metal Works, 96-2840 (La.7/1/97), 696 So.2d 551, and Turner v. Sunbelt Mfg., 32,691 (La.App. 2 Cir. 6/14/00), 763 So.2d 770. Second, he urges the WCJ erred in finding him “forever barred from SEB because he earned high wages in some months after the accident.” He concedes that for 8 of 37 months | ^between August 2007 and September 2010, he earned more than his pre-injury wage, but contends that because of his injury he is generally unable to earn 90% of his pre-injury wage, and thus entitled to SEB under La. R.S. 23:1221(3)(a). Third, he argues that the WCJ erred in imposing its own doctrine of “fairness” and ignoring the law and jurisprudence. Patterson cites the WCJ’s remark from the bench that he did not “see the fairness” in letting a claimant “benefit from two winger months where he made more,” and giving him a “windfall.” He prays for a judgment awarding him SEB.

GM responds that Patterson lost because of inadequate proof under R.S. 23:1221(3)(a). Unlike the claimant in Allen, supra, Patterson actually got a raise after the accident and offered no medical evidence that he was unable to do any of the jobs he held post-accident; he simply failed to prove he could not make 90% of his pre-injury wage. GM also contends that the WCJ did not abuse its discretion in finding Patterson’s credibility lacking, and adds that because of the economic downturn, everybody at GM is now making less than in 2008, regardless of physical condition.

Applicable Law

The purpose of SEB is to compensate an injured employee for the wage-earning capacity he has lost as a result of his accident. Banks v. Industrial Roofing & Sheet Metal Works, supra. An employee is entitled to receive SEB if he sustains a work-related accident that results in his inability to earn 90% or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn |fithat amount under the facts and circumstances of the individual case. Banks, supra at 556. In determining if an injured employee has made out a prima facie case of entitlement to SEB, the court “may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989). Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic area. La. R.S. 23:1221(3)(c)(i).

Implicit in R.S. 23:1221(3)’s requirement that the employee show that a work-related injury results in his inability to earn 90% of his pre-injury wage is a showing that the injury, and not some other cause, resulted in his inability to retain his pre-injury job. Poissenot v. St. Bernard Parish Sheriff's Office, 2009-2793 (La.1/9/11), 56 So.3d 170. In Poissenot, the supreme court elaborated:

Where the employee goes back to his pre-injury job and then is terminated for a reason beyond the employer’s control and totally unrelated to the injury, this strongly suggests that his inability to earn 90% of his pre-injury wages was not the result of his injury and that the employee is in fact able to earn 90% of his pre-injury wages in some capacity. In Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 384, this Court held that the employer’s offer to place the employee “in a position that [she] could do [in spite of the injury] defeated the employee’s claim for SEB.” Further, the Court held that “[t]his conclusion was bolstered by the fact that [the employee] was able to perform, without difficulty, substantially similar work [for a different employer] for 9 months.” Id. at 384.

Id. at p. 9, 56 So.3d at 176.

[7The factual findings of the WCJ are subject to the manifest error standard of appellate review. Dean v. Southmark Const., 2003-1051 (La.7/6/04), 879 So.2d 112. The appellate court does not determine whether the WCJ’s factual findings and credibility calls are right or wrong, but only whether they are reasonable. Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275.

Discussion

The record shows that after Patterson’s injury, he returned to work at GM, initially making the same wage as before, $26.68 an hour; a year later, he received a raise to $28.71 an hour. The record also shows that despite a serious injury and a significant whole-body disability rating, he continued to work and was still working at the time of trial. Although he felt that GM was merely accommodating him, GM’s labor rep, Mark Johnson, testified that each of his post-accident jobs was a “real” job, and not a modified position. The WCJ specifically found Patterson’s opinion of the situation less credible than Johnson’s factual description. This evidence supports a finding that Patterson failed to prove, by a preponderance, that his injury resulted in an inability to earn 90% or more of his pre-injury wages.

Patterson’s situation is somewhat similar to that presented in Poissenot, supra. Poissenot, a sheriffs deputy, broke his right pinkie while trying to subdue a prisoner in October 2004. The injury was significant, requiring an initial surgery and two subsequent outpatient operations. He sustained a 17% permanent partial disability of the right upper extremity, a reduction to medium-level work activity, and consistent pain at 2 on a scale lRof 10. However, he returned to work “with some accommodation” at his old rate of pay in February 2005. In September 2005, he was furloughed, along with every other member of the St. Bernard Parish Sheriffs Office, as a result of Hurricane Katrina, and he filed a disputed claim in 2006. The WCJ awarded SEB and the court of appeal affirmed.

The supreme court reversed, stressing that the court must take into account all those factors which might bear on an employee’s ability to earn a wage. Id. at p. 5, 56 So.3d at 174. The court observed that when an employee returns to his pre-injury job and is terminated for reasons beyond the employer’s control and totally unrelated to the injury, this strongly suggests a lack of causation between the injury and the wage loss. Id. at p. 9, 56 So.3d at 176. The court distinguished Allen v. City of Shreveport, supra, as a case in which the employee sustained an actual decrease in pay and received specific work restrictions. The court noted that Poisse-not’s firing was not a pretext by the sheriffs office to avoid its comp obligation. Id. at 10, 56 So.3d at 177. The supreme court cited with approval Taylor v. Columbian Chemicals, 32,411 (La.App. 2 Cir. 10/27/99), 744 So.2d 704, in which this court held there was no right to SEB where the employee would have, and could have, continued her former employment but for the plant being closed.

If anything, Patterson’s showing is weaker than Poissenot’s: he returned to work at GM in 2006 doing jobs similar to those he held before the accident; he worked plenty of overtime in 2007 and 2008; he received a raise of over $2.00 an hour. Despite his complaints, which the WCJ found | slacking in credibility, and his undisputed disability rating, his work history is that of a steady and reliable employee who is not seriously hampered by disability. He showed nothing he was unable to do in his post-injury jobs. On this record, the WCJ was not plainly wrong to find that Patterson failed to prove an injury resulting in his inability to earn 90% of his pre-injury wage.

With this finding, there is no merit to Patterson’s argument that the WCJ improperly shifted the burden of proof. He failed to satisfy the initial step of R.S. 23:1221(3)(a) as outlined in Poissenot, supra, regardless of extraneous comments in the WCJ’s written opinion. There is also no merit to the claim that the WCJ improperly applied a “fairness” standard. To the contrary, the WCJ considered all those factors which might bear on his ability to earn 90% of his pre-injury wage, including economic factors completely beyond GM’s control. These assignments of error lack merit. The judgment is affirmed.

Conclusion

In light of this conclusion, we pretermit consideration of Patterson’s fourth assignment of error, which urged that his award of SEB should not be limited by the two-year period of R.S. 23:1221(3)(d)(i), and his fifth assignment of error, which demanded penalties and attorney fees under R.S. 23:1201 F. An unsuccessful claimant is not entitled to penalties and attorney fees. Poissenot, supra at p. 13, 56 So.3d at 178. The judgment is affirmed at Patterson’s cost.

AFFIRMED.

      . GM filed for Chapter 11 reorganization on June 1, 2009.


text:
    STATE of Louisiana, Appellee v. James Everett WATSON, Appellant.
    No. 46,572-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Louisiana Appellate Project, Jonesboro, LA, by James Edward Beal, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

| t Defendant, James Everett Watson, pled guilty to distribution of methamphetamine, a Schedule II controlled dangerous substance, in violation of La. R.S. 40:967(A)(1). He now appeals his 20-year hard labor sentence. We affirm in all respects.

FACTS

On March 6, 2010, an undercover officer of the Bossier Parish Sheriffs Office asked Watson to sell him some methamphetamine. Watson referred the officer to his accomplice, who was waiting in a nearby motel. The officer handed $50 to the defendant for the drugs.

Watson pled guilty pursuant to Boykin. The trial court clearly retained discretion to sentence him within the parameters of the charged offense.

At sentencing, the trial court noted its review of a presentenee investigation report (PSI) and a letter submitted by Watson and signed by other individuals attesting to the fact that he recently attended some substance abuse courses.

The trial court explained that:

• it had reviewed the PSI in conjunction with the 'sentencing guidelines set forth in La. C. Cr. P. art. 894.1;

• the PSI revealed that Watson had a criminal history dating back to 1969, and he had been convicted of eight felonies;

• whenever Watson was not serving time in prison, he was committing crimes;

12* the court had an obligation to protect the public from him; and

• any lesser sentence would deprecate the seriousness of the offense.

Watson’s timely motion to reconsider sentence was denied.

Watson alleges that:

• Twenty years was excessive;

• his accomplice received a lesser sentence, though she was more culpable;

• his age (60 years) and medical condition weighed in favor of a lesser sentence;

• though he has a serious record, Watson’s last felony was almost 10 years ago; and

• his role in the drug sale was that of a middleman.

The record indicates that the trial court took cognizance of the factors listed in La. C. Cr. P. art. 894.1 and articulated a factual basis for the sentence imposed. This sentence was justified given the circumstances of the case and Watson’s criminal history. The 20-year sentence imposed is ten years less than the maximum allowable.

Our law on reviewing sentences for excessiveness is well settled.

|aLa. R.S. 40:967(B)(1) provides that a person convicted of distribution of methamphetamine shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than 30 years.

This midrange 20-year sentence does not shock the sense of justice. It is clearly not excessive for a defendant with his horrendous track record. This sentence is certainly not disproportionate to the crime of conviction.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . It was later confirmed at the North Louisiana Crime Laboratory that the substance was in fact methamphetamine.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Prior to 2002, he had not committed a serious offense for more than 20 years.

      . The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating factor so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Nickles, 46,189 (La.App.2d Cir.4/13/11), 60 So.3d 728. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.
      Second, a sentence violates La. Const. Art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Lobato, 603 So.2d 739 (La.1992); State v. Nickles, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Nickles, supra.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Nicholas Loyd YOUNG, Appellant.
    No. 46,575-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Robert Randall Smith, Assistant District Attorneys, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

| Nicholas Loyd Young pled guilty to failure to register as a sex offender, second offense, in violation of La. R.S. 15:542.1.4. He was sentenced to 20 years’ hard labor without benefit of probation, parole, or suspension of sentence to run consecutively to any sentence he was serving. Young appeals the constitutional excessiveness of his sentence. We affirm.

Facts

On November 18, 2009, Nicholas Loyd Young was released from the Bayou Dor-cheat Correctional Center where he had been serving a three-year hard labor sentence for his second conviction of failure to register as a sex offender, first offense. He reported to the Shreveport District of Probation and Parole on November 19, 2009, and registered with the Bossier Parish Sheriffs Office as a sex offender that same day. He was given until December 30, 2009, to complete the community notification portion of the registration.

Young’s parole officer visited his registered address in Haughton on December 8, 2009, and the landlord, who lived next door, told the parole officer that Young had been picked up by someone the day before Thanksgiving and had never returned. The next day the parole officer requested a warrant for Young’s arrest. On February 22, 2010, Young was arrested and transported to the Bossier Parish Maximum Security Facility where he was charged with fugitive warrants from Bossier Parish. That same day he was read his rights and charged with failure to register as a sex ^offender, third-offense. Young spoke to an officer at the facility and told him that he had been staying with friends here and there, and had also been staying under the bridge at Red Chute in Haugh-ton, Louisiana.

On April 14, 2010, Young was charged by Bill of Information with violating the provisions of La. R.S. 15:542 for failing to register with the Bossier Parish Sheriffs Office as a sex offender, third-offense. Young initially pled not guilty, but on August 28, 2010, pursuant to a plea bargain agreement, he changed his plea to guilty of failure to register as a sex offender, second offense.

At the guilty plea proceedings, the district attorney read the following facts into the record. Young failed to register as a sex offender with the Bossier Parish Sheriffs Office on or about December 30, 2009, and had twice pled guilty in Caddo Parish to failure to register as a sex offender on September 2, 2005, and August 13, 2007.

When the trial judge asked Young if the recited facts were substantially correct, he replied, “No, Sir.” The judge questioned what was wrong with the recitation of facts, and Young stated that he was convicted in Caddo Parish only once for failure to register as a sex offender. He also claimed he registered in Bossier Parish and with the Haughton Police Department when he got out of jail for his last offense. Young admitted that |salthough he registered, he did not send out his required community notifications because he did not have the money to do so. With the district attorney’s agreement, the trial court amended the charge to failure to register as a sex offender, second offense, and the guilty plea was accepted. There was no stipulation of sentence to be imposed.

A presentence investigation report (“PSI”) was ordered by the court. At the sentencing hearing on December 7, 2010, the trial court indicated its consideration of the PSI which contained Young’s personal and criminal history. The court noted that Young was classified as a fifth felony offender, and that his criminal history began in 1982 with a felony theft that was reduced to a misdemeanor theft. The court also considered that during the 1980s, Young was convicted of DWI first and second offense and simple burglary, for which he received a three-year suspended sentence and three years’ supervised probation which was revoked. The court also noted that in 1993, Young was convicted of possession of a Schedule II, Controlled Dangerous Substance and that in 1995 he was charged with aggravated incest and allowed to plead to carnal knowledge of a juvenile for which he received a sentence of five years’ hard labor. In 2005, Young was charged with obscenity in Caddo Parish, but ultimately pled guilty to first offense failure to register as a sex offender. He was sentenced to one year of hard labor and was paroled, but the parole was revoked (for absconding supervision and substance abuse). In June of 2007, Young pled guilty to failure to register as a sex offender, another first offense, and received a 14three-year hard labor sentence. He twice received good-time parole and both were revoked for absconding supervision and substance abuse.

In fashioning Young’s sentence, the trial court noted that the defendant was convicted of failure to register as a sex offender, second offense rather than the charged third offense. The court informed Young that the purpose of the registration laws was the protection of children, yet Young was not doing what he was supposed to do. The court concluded that a probated sentence would not be considered under the circumstances because Young had repeatedly violated his parole in the past. The court noted that any lesser sentence would deprecate the seriousness of the offense, and then sentenced Young to the maximum sentence of 20 years at hard labor without benefit of probation, parole, or suspension of sentence, to run consecutively to any other sentence.

Young’s attorney made an oral objection to the excessiveness of the sentence, but no written motion to reconsider the sentence was ever filed. Young has filed this appeal and assigns as error only the constitutional excessiveness of his 20-year hard labor sentence.

Discussion

On appeal, Young argues that although the sentence imposed was within the statutory limits, under the circumstances of this case, the sentence is constitutionally excessive and an abuse of the trial judge’s discretion. Young contends that this was a “crime of economics, not a crime reflecting criminal intent worthy of the maximum sentence under the law,” because he lfidid not have a job, means of support or transportation, and money to pay for the required postal notification and public advertisement in a local paper.

The statute under which Young was sentenced is La. R.S. 15:542.1.4 which provides, in pertinent part, as follows:

A. (1) A person who fails to register, periodically renew and update registration, provide proof of residence or notification of change of address or other registration information, or provide community notification as required by the provisions of this Chapter, and a person who knowingly provides false information to a law enforcement agency as provided in R.S. 15:542(0(3), shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Upon second or subsequent convictions, the offender shall be fined three thousand dollars and imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
(3) An offender who fails to pay the annual registration fee in accordance with the provisions of R.S. 15:542 shall be fined not more than five hundred dollars, imprisoned for not more than six months, or both. Upon a second or subsequent conviction for the failure to pay the annual registration fee, the offender shall be punished in accordance with the provisions of Paragraphs (1) and (2) of this Subsection.

In order to prove the defendant guilty of violating La. R.S. 15:542, the State must prove that the defendant pled guilty or was convicted of a sex offense, that he resided in Louisiana for the period during which he was required to register and that he failed to register within the requisite time allotted for registration. La. R.S. 15:542(0(2); State v. Watts 09-0912 (La. App. 4th Cir.6/16/10), 41 So.3d 625, writ denied, 10-1685 (La.1/28/11), 56 So.3d 966.

| ^Community notification is an adjunct registration requirement under La. R.S. 15:442. No intent to differentiate between registration and notification exists in the language of the statute. State ex rel. Olivieri v. State, 00-0172 (La.2/21/01), 779 So.2d 735, cert. denied, 533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730, and cert. denied, 534 U.S. 892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001).

Because no motion to reconsider sentence was filed by Young, he is relegated to having this court consider the bare claim of constitutional excessiveness on review. La.C.Cr.P. art. 881.1; State v. Mims, 619 So.2d 1059 (La.1993).

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980).

A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Givens, 45,354 (La.App.2d Cir.6/23/10), 42 So.3d 451, writ denied, 10-1584 (La.1/14/11), 52 So.3d 902; State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. State v. Shirley, 41,608 (La.App.2d Cir.12/13/06), 945 So.2d 267, writ denied, 07-1394 (La.4/4/08), 978 So.2d 321; State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939.

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La.App.2d Cir.11/1/06), 942 So.2d 658, writs denied, 06-2768, 06-2781 (La.6/22/07), 959 So.2d 494. However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Givens, supra; State v. Black, supra.

The defendant places emphasis on his lack of a punishable intent and his partial compliance by his registration with authorities as a sex offender and probationer. This is an implicit attack on the legislative definition of failed registration as a serious felony and its fixing of the maximum sentence of 20 years, which the defendant suggests is grossly disproportionate to the harm of the offense to society. Nevertheless, such an | sattack under the Eighth Amendment on the legislatively determined punishment is not the constitutional challenge now presented. We are therefore left with the question of whether this multiple felony offender may receive the maximum 20-year sentence in this case.

Young has a three-decade continuous criminal history. Over the years, he has received extensive leniency in sentencing and has failed to benefit from probationary opportunities. Most significant to the present offense are Young’s prior sex crime offense and his arrest for obscenity. Young was originally charged with the aggravated incest of his 15-year-old stepdaughter in 1995 after Young kept her home from school under false pretenses. On that occasion, he forced the child to perform oral and sexual intercourse. Subsequently, in 2005 Young was arrested on an undisclosed obscenity charge but pled guilty to his first offense for failure to register as a sex offender. Young’s actions in the present case demonstrate his continued pattern of escaping supervision as he left his residence without informing his parole officer. His persistent flight and inability to comply with required restraints fashioned for the protection of children qualify Young as the worst type of offender for which the maximum sentence is appropriate. The imposed 20-year sentence is appropriately tailored to this defendant and does not shock the sense of justice.

An error patent review indicates that with regard to the mandatory fine imposed under La. R.S. 15:542.1.4, the sentence imposed is illegally |alenient because the trial court failed to impose the $3,000 fine. Young is not prejudiced in any way by the trial court’s failure to impose the mandatory fine. La.C.Cr.P. art. 882(A) provides that an illegally lenient sentence may be corrected at any time by an appellate court on review. This court, however, is not required to take such action. State v. Griffin, 41,946 (La.App. 2 Cir. 5/2/07), 956 So.2d 199; State v. Sims, 40,300 (La.App.2d Cir. 10/26/05), 914 So.2d 594; State v. Price, 05-2514 (La.App. 1st Cir.12/28/06), 952 So.2d 112, writ denied, 07-0130 (La.2/22/08), 976 So.2d 1277; State v. Paul, 05-612 (La.App. 5th Cir.02/14/06), 924 So.2d 345. Given defendant’s apparent indigent status we decline to impose such a fine at this juncture. In light of the above, we decline to correct Young’s sentence and affirm it as imposed.

CONVICTION AND SENTENCE AFFIRMED.

      . These facts were gleaned from the presen-tence investigation report ordered by the trial court after the acceptance of the guilty plea.

      . This statute requires defendants to register as sex offenders. La. R.S. 15:542.1.4 is the statute which actually contains the language making it a crime for failure to register, and which contains the penalty provisions. However, even when the bill of information supplies the completely wrong section number or statute, the conviction is upheld if the defendant was given fair notice and identity of the offense and does not claim surprise or prejudice. See, State v. Lee, 39,088 (La.App.2d Cir.10/27/04), 888 So.2d 305.

      . The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishment, which according to the jurisprudence is barbarous, extraordinary, or grossly disproportionate to the offense. State v. Milter, 263 La. 960, 269 So.2d 829 (1972).


author: BROWN, Chief Judge.

text:
    Lassie King HINES, as an Individual and as Curator of her Interdicted Spouse, Reddin Larry Hines, Plaintiffs-Respondents v. BROWNING-FERRIS, INC., and Scott Construction Equipment Company of Louisiana, LLC, Defendants-Applicants.
    No. 46,577-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Stafford, Stewart & Potter, Alexandria, LA, by Andrew P. Texada, for Applicant/Norwel Equipment Co.
    The Singleton Law Firm, Shreveport, LA, by Christopher L. Sices, for Respondents.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

| defendant, Norwel Equipment Co., LP (“Norwel”), seeks review of the trial court’s judgment denying an exception of prescription, motion to strike and motion for summary judgment. For the reasons set forth below, we reverse that portion of the trial court’s ruling denying the exception of prescription and render judgment dismissing plaintiffs’ claims against Nor-wel.

Facts and Procedural History

Reddin Larry Hines was involved in a work-related accident on October 24, 2007. On that date, Hines, a heavy equipment operator, was driving a 1994 Volvo A25C articulating dump truck owned by his employer, BFI Waste Systems (“BFI”) at a landfill owned by BFI. Hines lost control of the dump truck, which crashed into a sediment pond. As a result of the accident, Hines sustained serious bodily injuries, including major head trauma. Hines was interdicted due to his injuries. Hines’s wife, Lassie King Hines, individually and as curator of her husband, filed the instant civil action on October 22, 2008, naming as defendants BFI and Scott Construction Company of Louisiana (“Scott”). According to the petition, the cause of the accident was the failure of the dump truck’s braking system. Plaintiffs also alleged that the truck Hines was driving had been serviced by Scott on several occasions, and that Scott’s negligence in performing this maintenance was a cause-in-fact of the dump truck’s malfunctioning brake system. BFI filed a petition of intervention seeking indemnification from Scott for any and all workers’ compensation benefits | ⅞⅛ had paid or become obligated to pay as a result of Hines’s accident. Because workers’ compensation was the exclusive remedy against the employer, BFI, the tort claim against BFI was voluntarily dismissed on April 21, 2009.

On September 22, 2009, almost two years after the accident, plaintiffs amended the petition to add Norwel as a defendant. In this amending petition, plaintiffs alleged that Norwel had performed maintenance on the dump truck about six months prior to the accident, and that the service performed, replacement of the transmission, would have required moving of the braking system’s reservoirs. They further alleged that Norwel’s failure to properly maintain the dump truck was negligence and a cause-in-fact of the truck’s braking system malfunction.

During this time, Scott filed a motion for summary judgment which was denied by the trial court. An application for supervisory writs filed by Scott was granted to docket. On October 19, 2010, days before the matter was to be heard in this court, plaintiffs voluntarily dismissed their claims against Scott.

Thereafter, Norwel filed a peremptory exception of prescription, pointing out that because plaintiffs had voluntarily dismissed the only two timely named defendants in the case, BFI and Scott, prescription against Norwel had not been interrupted by the filing of suit against BFI and Scott, who, because of the dismissals, were not solidary or joint obli-gors or co-tortfeasors. Norwel also filed a motion for summary judgment alleging that no genuine issues of material fact remained concerning its liability to 1 splaintif'fs because Norwel repaired the dump truck’s transmission, not its braking system; the truck was operated for a period of six months after the work done by Norwel without incident; the brake fluid level was checked several times between the date of the repairs and the accident; and, plaintiffs failed to provide any competent proof that the work done by Norwel was a cause-in-fact of the accident.

On February 8, 2011, six days prior to the hearing set on Norwel’s exception and motions, plaintiffs filed a memorandum in opposition to the exception of prescription and filed an unsworn report prepared by their expert, Tom Truss. Norwel filed a motion to strike the report as inadmissible hearsay which could not be introduced at a hearing on a peremptory exception. Nor-wel also pointed out that the report was not relevant to the issue of prescription as it did not set forth any facts documenting the dates and times of their expert’s investigation. Plaintiffs also filed an affidavit by their expert in response to Norwel’s motion for summary judgment. Norwel sought to strike the affidavit as untimely under La. C.C.P. art. 966(B)(2) and because it did not meet Daubert standards of admissibility.

The hearing was held and the trial court overruled the exception of prescription and denied both the motion to strike and the motion for summary judgment. The trial court accepted the filing of the affidavit and found that the affidavit created a genuine issue of material fact as to Norwel’s liability. Norwel sought review of these rulings.

| ¿Discussion

Denial of Exception of Prescription

Tort actions are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492; Renfroe v. State, Dept. of Transportation and Development, 01-1646 (La.02/26/02), 809 So.2d 947. La. C.C. art. 2324(C) provides that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. See also, C.C. arts. 1799 and 3503. Where there is no liability on the part of the timely sued alleged tortfeasor, however, prescription is not interrupted against another tortfeasor who is not timely sued, since no joint or solidary obligation exists. Renfroe, supra; Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

In Renfroe, 809 So.2d at 950, the supreme stated:

Delictual actions are subject to a libera-tive prescriptive period of one year, which commences to run from the date the injury is sustained. La. C.C. art. 3492. The delictual action against Road District No. 1 and the GNOEC was not filed during the one-year prescriptive period, although suit was timely filed against the DOTD. Under La. C.C. art. 3462, prescription is interrupted by the commencement of suit against the obli-gor in a court of competent jurisdiction and venue. Further, the interruption of prescription by suit against one solidary obligor is effective as to all solidary obli-gors. La. C.C. arts. 1799 and 3503. The same principle is applicable to joint tortfeasors. La. C.C. art. 2324 C. However, a suit timely filed against one defendant does not interrupt prescription as against other defendants not timely sued, where the timely sued defendant is ultimately found not liable to plaintiffs, since no joint or solidary obligation would exist. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). Because the timely sued defendant, the DOTD, was dismissed from the suit, prescription against Road District No. 1 and the GNOEC is not interrupted and plaintiffs |fisuit against them has prescribed, unless some other basis to revive this suit is found.

In the instant case, plaintiffs sued BFI and Scott within the one-year prescriptive period, but the amending petition against Norwel was filed more than one year after the date of the accident. Because the timely sued defendants, BFI and Scott, were both voluntarily dismissed from this action, | (¡prescription against Norwel was not interrupted and plaintiffs’ suit against Norwel has prescribed unless some other basis to revive the suit is found. Renfroe, supra; Morris v. Westside Transit Line, 02-1029 (La.App.5th Cir.02/25/03), 841 So.2d 920.

Plaintiffs argue that the doctrine of contra non valentem serves to interrupt prescription in their claim against Norwel. Specifically, plaintiffs rely upon the fourth factual situation in which courts have applied the doctrine of contra non valentem to prevent the running of liberative prescription, which is where the cause of action is neither known nor reasonably knowable by the plaintiffs even though plaintiffs’ ignorance is not induced by the defendant. See, Plaquemines Parish Comm. Council v. Delta Development Co., 502 So.2d 1034 (La.1987); La. C.C. art. 3467, Official Revision Comment (d).

Plaintiffs allege that they initially believed that the accident in which Hines was injured was caused by faulty brakes and/or the dump truck’s braking system. Hines’s brain injury, which was life-threatening, has essentially made him unable to communicate. Therefore, the incident had to be closely examined and reconstructed to determine what could have played a role in the dump truck’s malfunction. While it was originally thought that the truck’s brakes were the sole cause of the accident, plaintiffs’ expert, Tom Truss, discovered at some later date that the transmission retarder may not have been properly working, and that had the retarder been functioning properly, the accident and resultant injuries could have been avoided. It was at this time that plaintiffs amended their petition and added Norwel.

| -/Plaintiffs’ expert examined the truck, spoke with Hines’s coworkers and obtained information about all work done on the truck, including that performed by Norwel (Nortrax), before they filed the original action against BFI and Scott. Plaintiffs now argue that the mere fact that they knew that Norwel had performed work on the transmission was insufficient to provide them with the knowledge that was needed to file suit against Norwel. They assert that instead, extensive investigation and research into the matter was required to determine the manner in which the dump truck operated and the function of the retarder inside of the transmission. Plaintiffs urge that, considering the injuries sustained by Hines, prescription should not begin to run against Norwel until plaintiffs became aware of Norwel’s role in causing the accident.

On the other hand, Norwel contends that the doctrine of contra non valentem, specifically the fourth category or the discovery rule, does not apply in this case. According to Norwel, plaintiffs failed offer any reason as to why the alleged fault of Norwel could not have been determined prior to the tolling of the one-year prescriptive period.

When the plaintiffs’ petition reveals on its face that prescription has run, and plaintiffs rely upon suspension or interruption of prescription, the burden is on plaintiffs to prove suspension or interruption. Boyd v. B.B.C. Brown Boveri, Inc., 26,889 (La.App.2d Cir.05/10/95), 656 So.2d 688.

As noted by the court in supra, the doctrine of contra non valentem only applies in exceptional circumstances. See also, Morris, \ ¡¡supra; La. C.C. art. 3467, Official Revision Comment (d). No exceptional circumstances exist in the instant case. Renfroe

Assuming arguendo that the trial court did not err in allowing the undated report of plaintiffs’ expert, Tom Truss, into evidence at the hearing on the exception and motions, we find, as plaintiffs have contended, that this report contains information pertinent to the issue of prescription. Unfortunately, this information is not favorable to plaintiffs. The list of materials reviewed by Truss in compiling his report indicate that Truss’s company, Truck Dynamics, performed an inspection of the truck at Allied Waste in Shreveport on May 29, 2008, which was approximately seven months after Hines’s accident. The list of materials reviewed also includes various conversations Truss had with supervisors and former drivers of the Volvo dump truck; Allied Waste Daily Inspection Reports; Landfill Equipment Daily Inspection and Operators Reports, CFA, Inc. Equipment Repair reports; Allied Waste Equipment Repair Orders; Scott Construction Equipment Company Invoices; various parts invoices; Nortrax Service and Repair Invoices; Hines’s Employee File; Articulated Dump Truck Scheduled Service Inspection Form; and the Heavy Equipment Preventive Maintenance/Scheduled Service Inspection Form.

All of this information, including that obtained from conversations with the former operators of the Volvo dump truck involved in the accident, was obtained before the one-year prescriptive period expired, and it was more than sufficient to put a reasonable person on notice of a potential claim against the pertinent companies who performed maintenance and/or l flrePa^r work on the dump truck involved in the accident. See, Renfroe, supra.

What is required to commence the running of prescription is not proof of a cause of action against a particular defendant, but simply knowledge, actual or constructive, i.e., information sufficient to, in ter alia, put a reasonable person on guard to call for inquiry. Boyd, supra. See also, Kroger Company v. LG Barcus & Sons, Inc., 43,804 (La.App.2d Cir.01/14/09), 2 So.3d 1163. This notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Campo v. Correa, 01-2707 (La.06/21/02), 828 So.2d 502.

Plaintiffs cannot seek to benefit from their failure to fully investigate the exact cause of their injuries at the expense of Norwel. See, Baker v. Williams, 02-67 (La.App.3d Cir.08/28/02), 825 So.2d 563. The doctrine of prescription protects defendants from having to defend against stale claims by requiring plaintiffs to file suit in a court of competent jurisdiction and venue in a timely manner. Id.

Although plaintiffs have argued that they did not learn of the potential involvement of the transmission retarder in the accident until well after the one-year prescriptive period, they have not offered or asserted any reason or circumstance that prevented them from discovering this information. See, Biehl v. B & K Precision Corporation, 09-0573 (La.App.4th Cir.10/14/09), 23 So.3d 979. The dump truck and all maintenance records, repair invoices and company logs were in the possession of BFI, Hines’s employer, at the time of and following the accident. There is no | inevidence whatsoever to indicate any facts or circumstances which would have prevented plaintiffs from inspecting the dump truck (in fact they had their expert do so seven months after the accident) or reviewing the relevant company documentation regarding the truck’s maintenance, repair and upkeep in a timely manner. As in Biehl, supra, with a reasonable amount of diligence, Norwel could have been discovered as a potential defendant within the applicable prescriptive period, and the doctrine of contra non valentem is inapplicable.

Accordingly, the trial court’s judgment overruling defendant’s exception of prescription is reversed, and plaintiffs’ claims against defendant are dismissed with prejudice. We therefore do not reach Nor-wel’s remaining assignments of error.

Conclusion

For the reasons set forth above, that portion of the trial court’s judgment overruling defendant’s exception of prescription is REVERSED, and judgment is RENDERED dismissing with prejudice the claims of plaintiffs, Lassie King Hines, Individually and as Curator of Reddin Larry Hines, against defendant, Norwel Equipment Co., LP.

      . This court granted to docket Norwel's writ application.

      . The Renfroe court further observed:
      In Ray v. Alexandria Mall, Through St. Paul Property & Liability Ins., 434 So.2d 1083, 1087 (La.1983), this Court established the following criteria for determining whether art. 1153 allows an amendment which changes the identity of the party or parties sued to relate back to the date of filing of the original petition: (1) The amended claim must arise out of the same transaction or occurrence set forth in the original petition; (2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed. Renfroe, 809 So.2d at 950-51.
      The Renfroe court found that "plaintiff's supplemental and amending petitions against Road District No. 1 and the GNOEC fail to meet the second and fourth criteria set out in Ray for relation back to the original timely filed petition against the DOTD under La. C.C.P. art. 1153.” Id. at 953. In the instant case, plaintiffs do not argue this issue as they also clearly can not meet the second and fourth criteria set out in Ray.

      We also note that In Spott, 601 So.2d at 1360-61, the supreme court stated:
      Article 73(B) is an extremely unusual exception to the general rule that suit against a defendant ultimately found not to be liable does not interrupt prescription as to other defendants who, as a result of the timely sued defendant’s dismissal, cannot be the solidary obligors of the dismissed defendant. The jurisprudence on amending petitions after the prescriptive period to name additional defendants, though not directly on point, lends some guidance here. In Scott v. Burden, 527 So.2d 468 (La.App. 5th Cir.1988), the court held prescription did not bar a suit against a late-named defendant sufficiently alleged to be a solidary obligor of a timely sued defendant. The court noted, however, "[i]f, during subsequent proceedings, it is shown that solidary liability does not exist, an exception of prescription could be filed again, so appellee’s rights are not hurt by our ruling at this time.” Id. at 470. Thus, if ultimately the timely sued defendant is found not liable, the suit as to the late-named defendant could be dismissed on the basis of prescription. Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724, 726 (La.1973); Provident Life and Accident Ins. Co. v. Turner, 582 So.2d 250, 254 (La.App. 1st Cir.1991).


text:
    Jarred Lynn TAYLOR, Plaintiff-Respondent v. Richard F. BROOMFIELD d/b/a Broomfield, Inc., and Hudson Insurance Group, Defendant-Applicant.
    No. 46,590-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 21, 2011.

      Ostendorf, Tate, Barnett & Tagtmeyer, L.L.P., New Orleans, LA, by Lance Stephen Ostendorf, John Gleason Alsobrook, for Applicants.
    Mixon & Carroll, PLC, Columbia, LA, by Brian E. Frazier, James E. Mixon, James L. Carroll, for Respondent Jarred Lynn Taylor.
    Pajares & Schexnaydre, L.L.C., Mande-ville, LA, by David J. Schexnaydre, for Respondent GE Capital Commercial, Inc.
    Before PEATROSS, DREW and MOORE, JJ.
   DREW, J.

| defendants, Broomfield’s, Inc. (“Broomfield”), and Hudson Insurance Group (“Hudson”), sought supervisory relief from an interlocutory ruling denying their exception of prescription. We granted and docketed the writ. We now reverse the judgment.

FACTS

On September 17, 2009, Jarred Taylor was involved in an automobile accident with a Mack truck driven by Brandon Goss and owned by Broomfield. Taylor sustained various injuries, including two broken ribs, multiple body contusions, and facial lacerations.

For damages sustained as a result of the collision, Taylor sued Broomfield and its insurer, Hudson, on September 17, 2010, via facsimile transmission. The fax-filed petition was not notarized.

Under La. R.S. 13:850, Taylor’s attorney had until September 24, 2010, to “forward” the original petition to the Jackson Parish Clerk of Court.

The original petition was not actually filed with the Jackson Parish Clerk of Court until October 5, 2010. The verification for the original petition had been notarized by a person named Donna Kay Tucker on September 20, 2010, one year and three days after the wreck.

Broomfield and Hudson filed a peremptory exception of prescription on November 12, 2010, urging the dismissal of plaintiff’s suit, with prejudice, because it was untimely filed after the one-year prescriptive period for torts had passed.

|2On January 3, 2011, plaintiff filed both a first amended petition for damages and a memorandum in opposition to the exception of prescription. In the amended petition, plaintiff removed Richard F. Broom-field and added GE Capital Commercial, Inc., and Brandon Goss as defendants.

At the January 13, 2010, hearing on the exception of prescription, Broomfield and Hudson argued that:

• the prescriptive period to recover for plaintiffs injuries had passed;

• Taylor timely submitted his petition for injuries on September 17, 2010, via facsimile transmission, but he failed to prove by a preponderance of the evidence that he forwarded the original petition within five days, as required by La. R.S. 13:850.

The Jackson Parish Clerk of Court did not receive the “hard copy” of the original petition until 16 days after the fax filing date.

In opposition to the exception of prescription, Taylor’s counsel claimed that when his office fax-filed the petition on September 17, 2010, his staff immediately put the original petition in an envelope with the two checks required for filing with the clerk of court, addressed the envelope, and mailed it and the rest of the mail at the post office.

Several of counsel’s staff members testified at the hearing.

Brian Frazier, the attorney who prepared the petition, testified that once he finished the petition, he advised his assistant to send the original signed petition with the electronic transmission fee and the fax filing fee to the Jackson Parish Clerk’s Office. He did not follow up with his assistant to determine if she had done so.

|aSharon Lovett, legal assistant, testified that on September 17, 2010, she transmitted the petition to the clerk’s office by facsimile, and then made two check requests for the filing and transmission fees. On that same day, she placed the original petition, along with the two checks, in an envelope, addressed it to the Jackson Parish Clerk of Court, and placed it in the firm’s outgoing mailbox. After that, she did not deal with the file again. She did not know the notary, Donna Kay Tucker, nor could she explain why the verification bore a date of September 20, 2010, three days after she had sealed the petition in an envelope.

Sue Williams testified that she normally took the firm’s outgoing mail to the post office. Admitting that she usually did not look through the mail, Williams could not remember if a brown envelope addressed to the Jackson Parish Clerk of Court was among the mail she took to the post office on September 17, 2010.

Cindy Carroll, the office manager, recalled issuing two checks, one for the filing fee and one for the transmission fee, on September 16, 2010.

Finding the affidavits and testimony of counsel and his staff as sufficient evidence, the learned trial court:

• denied the exception of prescription;

• held that the notary stamp date was merely harmless error; and

• ruled that the petition was timely forwarded.

|4Broomfield and Hudson applied for supervisory review. We granted and docketed their writ and submitted the matter for decision.

DISCUSSION

Delictual actions are subject to a liberative prescription of one year, which commences to run from the date injury or damage is sustained. La. C.C. art. 3492.

When evidence is introduced at a hearing on an exception of prescription, the trial court’s findings of fact are reviewed under the manifest-error standard. Pratt v. Louisiana State Medical Center in Shreveport, 41,971 (La.App.2d Cir.2/28/07), 953 So.2d 876.

Although the party raising a peremptory exception of prescription ordinarily bears the burden of proof, when prescription is evident from the face of the pleading, the plaintiff bears the burden of showing the action has not prescribed. Cooksey v. Heard, McElroy & Vestal, L.L.P., 44,761 (La.App.2d Cir.9/23/09), 21 So.3d 1011.

With regard to facsimile transmissions, La. R.S. 13:850 provides:

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
|5C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

The sender must prove by a preponderance of the evidence that the original document and fees have been forwarded. Hunter v. Morton’s Seafood Restaurant & Catering, 2008-1667 (La.3/17/09), 6 So.3d 152. The plaintiff must present proof, in the form of affidavits or other documents, such as proof of mailing, of the date on which the original document and required fees were timely forwarded to the clerk’s office in accordance with La. R.S. 13:850. Id.

In the present case, Taylor’s attorney and office staff testified that they executed their duties on September 17, 2010, with regard to the petition. When questioned, no one could confirm that the envelope was actually forwarded from the firm to the post office nor could anyone explain the September 20, 2010, date affixed by the notary.

In an email dated September 17, 2010, Sharon Lovett asked Carroll for two checks to the Jackson Parish Clerk of Court to cover the costs of filing and transmission fees. But, in her testimony at the hearing on the exception of prescription, Lovett stated that the next day she [Carroll] asked her for a receipt and, after receiving the checks and being asked for a receipt, she put the petition and checks in an envelope addressed to the Jackson Parish Clerk of Court. This would indicate that she would have 1 ¡¡received the checks along with the receipt on September 18, 2010, a day after she claimed to have mailed the petition.

Both the record and Carroll’s live testimony conflict with that of Lovett. The record contains copies of the checks issued by Carroll, which were dated September 16, 2010. Carroll testified that she issued the checks on September 16, 2010, as opposed to September 18, 2010.

No witness could explain why the petition sent via facsimile transmission was not notarized, while the one received October 5, 2010, was notarized. We cannot find authority authorizing changes between the fax-filed petition, and the “original signed document.” Without an affidavit or live testimony from Tucker, plaintiffs counsel is able neither to verify the authenticity of the notarization, nor explain the September 20, 2010, date of the verification, three days after the firm claims to have mailed the document to the clerk’s office.

Even if the ruling in Hunter, supra, allowed this type of testimony to prove the timely forwarding of the petition, the testimony is both too conflicting and insufficient to find, by a preponderance of the evidence, that plaintiff counsel’s firm forwarded the petition in accordance with La. R.S. 13:850.

The Louisiana Supreme Court in Hunter, supra, only interpreted the requirements laid out in the statute.

In the unpublished case of Briggs v. Austin, 2009-1336 (La.App.1st Cir.2/12/10), 2010 WL 528472, the First Circuit made the first factual determination as to whether a plaintiff had successfully complied with the 17requirements of La. R.S. 13:850. The court in Briggs held that affidavits merely stating a petition was mailed were insufficient to prove that it was timely forwarded.

In Briggs, the clerk’s office did not receive Briggs’ original petition until two months after receiving the fax filing. Though Briggs submitted affidavits of her counsel and counsel’s secretary who testified that they timely mailed the petition, the First Circuit held:

Even accepting plaintiffs affidavits as true, there is no evidence of record to show that the filing fees were timely forwarded prior to that date or that the facsimile filing fees were ever submitted[.] ... Given the absence of proof, such as postal service proof of mailing, that the petition had been timely forwarded and the lack of evidence to document that a check or some other form of payment had been written and timely forwarded to cover the cost of filing fees or fax transmission fee ... we find no error in the trial court’s determination that the plaintiffs failed to meet their burden of proof.

Briggs, 2009-1336 at p. 3, 2010 WL 528472.

As in the Briggs case, plaintiffs counsel has provided the court only with the general practice of his law firm when mailing documents. Taylor has neither postage proof nor any other form of time-stamped evidence to prove that his counsel timely forwarded the petition for damages. Without such proof of mailing to counter the missing and conflicting evidence, this court cannot agree that Taylor met his burden of proof by a preponderance of the evidence. To so hold would eviscerate the proof requirements as laid out in Hunter.

We do not take this action lightly, but there are just too many questions presented here, and only the vague chimera of needed answers.

IsDECREE

Based on the evidence in this record, we conclude that the trial court was clearly wrong in denying the exception of prescription. At Taylor’s costs, the judgment is REVERSED.

      . Also filed on November 12, 2010, was an exception of no cause of action.

      . Strictly in hindsight, and as an aid in the fact-finding process, it would be a good practice for the clerk’s office to retain postmarked envelopes in cases requiring compliance with La. R.S. 13:850.

      .None of the witnesses, including plaintiff’s counsel, could explain the mystery of the "phantom” notary, Donna Kay Tucker, nor could any witness explain the three-day delay before the date of the verification.

      . These checks did not clear the bank until October 7, 2010.

      . In this difficult decision, the trial court was not assisted in the fact-finding process by hearing sworn testimony from the notary, nor by receiving her affidavit about the verification. Our brother judge below was not proffered the return receipt from the postal service, nor even a copy of counsel’s letter of transmittal to the clerk’s office.