author: PITMAN, J.

text:
    Kevin WILLIAMS, Plaintiff-Appellant v. Piggly WIGGLY, et al, Defendants-Appellees.
    No. 49,010-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2014.

      Brittain & Sylvester, Natchitoches, by Russell L. Sylvester, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner, APLC, by Gerald M. Johnson, Jr., Shreveport, Ryan 0. Goodwin, for Appellees.
    Before STEWART, PITMAN & GARRETT, JJ.
   PITMAN, J.

| plaintiff, Kevin Williams, slipped and fell in the Piggly Wiggly store in Homer, Claiborne Parish, Louisiana, in July 2010. He sued Defendants, Kenyan Enterprises, Inc., and its insurer, The Insurance Company of the State of Pennsylvania. Defendants filed a motion for summary judgment, which was granted by the trial court, dismissing Plaintiffs suit. Plaintiff appealed. For the following reasons, we reverse and remand.

FACTS

On July 30, 2010, Plaintiff and his girlfriend, India Walker, entered Piggly Wiggly and turned to the right to the produce section at the front of the store. After Plaintiff selected some produce, he turned to walk to the back of the store, but slipped in some water on the floor and fell. He landed on his elbow and back and then hit his head on the floor. The store’s produce manager, Tameka Bursey, was walking toward Plaintiff when she saw him fall.

Plaintiff filed suit against Defendants, alleging he had sustained injuries as a result of the fall. The depositions of Plaintiff, Ms. Walker and Ms. Bursey were taken. According to Plaintiff and Ms. Walker, neither of them had noticed the water on the floor prior to the fall. Ms. Walker testified that she only noticed the two- to three-foot wide puddle of water after Plaintiff fell because he “was wet.” Plaintiff also testified that his clothes were wet after he fell. Plaintiff and Ms. Walker further stated that they did not know the origin of the water, why it was in front of the produce section of the store or how long it had been there.

Ms. Bursey testified that she had been standing in front of the produce ^section for some time prior to the incident and had not seen any water there. She went to the back of the store for a short period of time and had just returned to the produce section when she saw Plaintiffs accident occur. Although she testified that there was no water on the floor at that time, Ms. Bursey subsequently testified that she wiped up some water with a paper towel after the accident, describing it as only a few drops.

Defendants answered and filed a motion for summary judgment seeking dismissal from the suit on the basis that the action was governed by La. R.S. 9:2800.6, which requires Plaintiff to present evidence to establish the merchant’s actual or constructive notice of the hazard encountered or the merchant’s failure to exercise reasonable care. In support of their claim that Plaintiff was unable to provide such evidence, Defendants submitted the depositions of Plaintiff, Ms. Walker and Ms. Bursey.

Plaintiff responded and opposed the motion for summary judgment by submitting the same depositions and, additionally, a sworn affidavit by witness Herman Webb, who stated that he was in the store on the day of the accident and had noticed a puddle of water in front of the produce section. He stated that he saw Ms. Bur-sey standing near the puddle. He continued shopping in the store; and, 20 minutes later, when he returned to the front of the store, he saw Plaintiff lying in the area where he had previously seen the puddle of water.

After a hearing on the motion and the submission of post-hearing memoranda, the trial court granted Defendants’ motion for summary judgment, stating in its reasons for judgment that, although water on the floor would have created an unreasonable risk of harm,

|s[t]he Court believes that the plaintiffs case falls as to the fact that there is no indication that the plaintiff would be able to carry the burden of proving element number two of La. R.S. 9:2800.6 in that there is no indication that the merchant either created or even had actual or constructive knowledge of the condition which caused the damage to plaintiff prior to the occurrence.
Plaintiff now appeals.

DISCUSSION

Plaintiff argues that the trial court erred in determining that there was no indication that he would be able to prove that the merchant either created the hazard or had actual or constructive knowledge that there was water on the floor. Plaintiff contends that summary judgment is usually not appropriate for claims based on subjective facts such as motive, intent, good faith, knowledge and malice.

Plaintiff further argues that his deposition testimony, as well as that of Ms. Walker, evidenced that the hazardous condition existed and that Mr. Webb’s affidavit presented evidence as to how long it existed. He therefore contends that there is a question of fact as to whether that period of time was of such length that the merchant had actual or constructive knowledge of the dangerous condition.

Defendants argue that La. R.S. 9:2800.6 imposes a heavy burden on a plaintiff to present affirmative evidence for each of three elements required to present a valid cause of action thereunder. Defendants assert that, if a plaintiff fails to positively prove any one of the three elements, his claim has no merit. Defendants also argue that the trial court properly found that Plaintiff failed to present positive evidence sufficient to satisfy his burden of proving the temporal element that the merchant either created or had actual |4or constructive knowledge of the condition.

Summary judgment procedure is set forth in La. C.C.P. art. 966 and states that a motion for summary judgment shall be rendered forthwith “if the pleadings, depositions, answers to 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)(2). The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2). 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.

Summary judgments are subject to a de novo review using the same criteria as the trial court to determine whether summary judgment is appropriate. Williamson v. Wal-Mart Stores, Inc., 48,576 (La.App.2d Cir.1/8/14), 130 So.3d 478. The sole purpose of a motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. A summary judgment is not a substitute for a trial on the merits. Miramon v. Woods, 25,850 (La.App.2d Cir.6/22/94), 639 So.2d 353.

The record as a whole should be considered for purposes of a motion 1 Kfor summary judgment to determine that all material facts are not at issue. Mayes v. Wausau Underwriters Ins. Co., 12-465 (La.App. 3d Cir.12/12/12), 104 So.3d 785; Taylor v. Moseley, 97-42 (La.App. 3d Cir.6/11/97), 698 So.2d 3. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780; Dowdy v. City of Monroe, 46,693 (La. App.2d Cir.11/2/11), 78 So.3d 791.

Although the summary judgment procedure is favored and must be construed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence, nevertheless, must be construed in favor of the party opposing the motion, and all doubt must be resolved in favor of the opponent to summary judgment. Williamson, supra.

The burden of proof required in a slip and fall case against a merchant is set forth in La. R.S. 9:2800.6, which states, in pertinent part, as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

IbB. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

In Williamson, supra, citing Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124, this court stated that failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 will prove fatal to a plaintiffs case. Merchants are required to exercise reasonable care to protect those who enter their stores, keep the premises safe from unreasonable risk of harm and warn persons of known dangers. Jones v. Brookshire Grocery Co., 37,117 (La.App.2d Cir. 5/14/03), 847 So.2d 43. The mere presence of a defect does not alone elevate that defect to the level of an unreasonably dangerous condition. Milton v. E & M Oil Co., 45,528 (La.App.2d Cir.9/22/10), 47 So.3d 1091. Whether the protective [7measures employed by a merchant are reasonable is determined in light of the circumstances in each case, the risk involved, the merchant’s type and volume of merchandise, the type of display, the floor space used for customer service, the volume of business, the time of day, the section of the premises and other such considerations. Billiot v. Cline, 27,396 (La. App.2d Cir.9/27/95), 661 So.2d 537, unit denied, 95-2595 (La.1/5/96), 666 So.2d 293. In addition to proving the above three elements, a plaintiff must come forward with positive evidence showing that the damage-causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of its existence. White v. Wal-Mart Stores, 97-0393 (La.9/9/97), 699 So.2d 1081.

Following our de novo review, we find that the trial court erred in granting Defendants’ motion for summary judgment as many genuine issues of material fact remain in this matter. All three witnesses’ depositions indicated that it was undisputed there was water on the floor of the store and that Plaintiff had fallen. The testimony of the witnesses differed with regard to the amount of water on the floor and the length of time it had been there. Ms. Bursey stated she had been standing there a short time before the accident and that there had been no water on the floor; however, she subsequently stated that, after Plaintiffs fall, there were a few drops of water on the floor which she wiped up with paper towels. Contradictorily, Ms. Walker stated there was a sufficient puddle of water on the floor that Plaintiffs clothes were wet after his fall. Also, Plaintiff submitted the affidavit of Mr. Webb, who stated that he had seen the puddle of water on the floor when he entered the store 20 minutes before the accident and that |8Ms. Bursey had been standing near it. Based on this contradictory evidence, we conclude that there are genuine issues of material fact to be decided as to notice and knowledge and that Plaintiff submitted sufficient evidence to establish the temporal element under La. R.S. 9:2800.6. Whether the evidence is sufficient to prove Plaintiffs allegations is a matter to be determined at trial.

CONCLUSION

For the foregoing reasons, we find in favor of Plaintiff, Kevin Williams, and reverse the trial court’s judgment granting Defendants’, Kenyan Enterprises, Inc. and The Insurance Company of the State of Pennsylvania, motion for summary judgment and remand the case to the trial court for further proceedings. Costs of this appeal are assessed to Defendants, Kenyan Enterprises, Inc. and The Insurance Company of the State of Pennsylvania.

REVERSED and REMANDED.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Christopher DARWIN v. PARETTI IMPORTS, INC.
    No. 13-CA-764.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.
    Rehearing Denied June 9, 2014.

      William R. Mustian, III, Attorney at Law, Metairie, Louisiana, for PlaintiffiAp-pellee.
    John J. Rabalais, Janice B. Unland, Matthew D. Crumhorn, Attorneys at Law, Covington, Louisiana, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

12AppeIIant/empIoyer, Paretti Imports, Inc. (“Paretti”), appeals a judgment rendered by the Office of Workers’ Compensation, District 7, awarding claimant/employee, Christopher Darwin (“claimant”), workers’ compensation benefits for psychological injuries sustained in a 2009 work-related accident, awarding claimant supplemental earnings benefits (“SEB”) from September 13, 2011 to December 1, 2011, and finding that claimant’s post-injury earning capacity was 50 percent of his pre-injury wages. Claimant answered the appeal, challenging the finding that claimant’s entitlement to SEB terminated on December 1, 2011. For the reasons that follow, we amend and affirm.

FACTS

On September 9, 2009, claimant, an automotive technician employed by Paretti, fell from a raised vehicle onto a concrete surface. Attempting to brace his fall, claimant extended his left arm in a “stiff arm” fashion and landed on his left palm. Claimant is left-handed. He initially experienced pain in his left elbow and received treatment the next day at East Jefferson General Hospital Occupational ^Medicine Clinic, where he was X-rayed, placed in a sling, and referred to an orthopedist. Around this time, in addition to the pain in his elbow, claimant began experiencing numbness in the ring and pinky fingers of his left hand. On September 14, 2009, Dr. Harold Stokes, the orthopedist, determined that claimant had sustained a radial head fracture to his left elbow, requiring surgery, which he performed the following day.

Following claimant’s recuperation from the surgery, on December 1, 2009, Dr. Stokes approved claimant’s return to work on full duty. Upon claimant’s return to work, Craig Diebold, Paretti’s service manager, observed a decline of about 50 percent in claimant’s productivity, which he expected, as it would take time for claimant to re-acclimate himself to the physical rigors of the job, as well as learn new technical updates that occurred in his absence. However, claimant soon complained of discomfort in his left elbow, prompting Dr. Stokes to order a functional capacity evaluation (“FCE”), which was performed on February 1 and 8, 2010. The evaluation determined that claimant was capable of performing the work of a mechanic, but incapable of the lifting as claimant stated was required by his job. Based on claimant’s continued complaints of pain, a CT scan of his left elbow was conducted, which suggested the possibility that his fracture had not united. Claimant opted for surgery, which Dr. Stokes performed on April 20, 2010, wherein he replaced a portion of claimant’s left elbow joint with a prosthesis.

In June of 2010, claimant met with a clinical social worker, Anjeanne Weiss, complaining of stress, anxiety, depression, and trouble at work, among other things. Ms. Weiss referred claimant to another clinical social worker, Paul Shurte, for further therapy.

Meanwhile, upon claimant’s return to work following his second surgery, Mr. Diebold noticed an even further decline in claimant’s productivity, which he |4attributed to a lack of motivation on claimant’s part: “[I]t was like he just wasn’t motivated to get the next job. He wasn’t coming to pull the tickets.” “He would spend a lot of time sitting by his tool box and there was [sic] jobs stacking up. He just didn’t go get them.” Brian La-coste, the shop foreman, had a different assessment of the situation, testifying that upon claimant’s return to work after his injury, he put forth good effort and it was evident that he was trying. Additionally, claimant acknowledged that he was “sitting around some of the time,” but he explained this was on account of slow business: “When work does get slow on occasion, we go on basically a list for work.... [Y]ou have your name put on a list and as work comes in, they call you to come get it.”

Claimant again experienced discomfort in his left elbow and complained of numbness in the pinky and ring fingers of his left hand. On July 28, 2010, Dr. Stokes found irritation in claimant’s ulnar nerve, for which he recommended neurological testing. On August 5, 2010, a neurologist, Dr. Hugh Fleming, performed tests and found “moderate ulnar nerve slowing across [claimant’s] left elbow.” Over the next several weeks, the numbing sensation worsened, prompting Dr. Stokes to recommend surgery.

Prior to claimant’s third surgery, Elier Diaz, a vocational rehabilitation counselor, was retained on July 29, 2010 to assist claimant in overcoming his mental and physical disabilities in order to maximize his vocational potential. Also, on August 6, 2010, claimant met with the clinical social worker, Mr. Shurte, and continued to see him on a weekly basis for psychotherapy. After a couple of meetings, Mr. Shurte diagnosed claimant with “major depression” and recommended a psychiatric evaluation. Claimant met with a psychiatrist, Dr. John Bick, on September 1, 2010. Dr. Bick diagnosed claimant with “severe major depressive disorder,” recommended that he continue psychotherapy, and prescribed medication for him.

| ^Claimant underwent his third surgery on September 21, 2010. On December 20, 2010, Dr. Fleming performed neurological testing and found “marked improvement” in the condition of claimant’s ulnar nerve, a conclusion disputed by claimant who continued to experience numbness. On December 27, 2010, Dr. Stokes released claimant to limited duty and restricted him to lifting no more than fifty pounds. Mr. Diebold and Mr. Lacoste testified that based on this fifty-pound restriction, there were no jobs in the shop that claimant was physically incapable of performing. They explained the heaviest object a mechanic would be required to lift without assistance is a rim and tire, which weighs approximately 30 to 40 pounds.

Sometime after claimant’s third surgery, in addition to the lingering pain in his left elbow and numbness in his fingers, claimant experienced pain radiating down from his neck. Believing he had a pinched nerve in his neck, claimant sought treatment from a chiropractor.

There is chronological confusion regarding claimant’s chiropractic treatment. The record indicates that claimant received chiropractic treatment for his neck on January 28, 2011. However, the record also reflects that a week before that, on January 21, 2011, in a meeting with Mr. Shurte, claimant informed Mr. Shurte that he had visited a chiropractor and that X-rays showed compressed disks in his neck. Furthermore, the record indicates that at claimant’s visit with Dr. Stokes on January 27, 2011, he informed Dr. Stokes of this chiropractic treatment. Despite this confusion, it is apparent that Mr. Shurte’s notes of January 21, 2011 are the first documented complaint of claimant’s neck pain.

Dr. Stokes, who had no prior knowledge of claimant’s neck pain, did not believe it was causally related to claimant’s September 9, 2009 injury. On February 3, 2011, claimant requested that Dr. Stokes fax a cervical MRI order to his workers’ compensation carrier for approval. On account of claimant’s | ficomplaints of neck pain, Dr. Stokes felt a cervical MRI was appropriate and so faxed a recommendation therefor.

On March 10, 2011, claimant underwent a second functional capacity evaluation, in which he demonstrated an ability to return to work as a mechanic with a limitation on his left arm to medium level work. One notable restriction recommended by the FCE was for claimant to avoid the repetitive lifting of more than 35 pounds from the ground. Following a meeting with Dr. Stokes on April 6, 2011, the doctor approved claimant’s return to work subject to the limitations as outlined in the FCE. On May 9, 2011, after reviewing Paretti’s automotive technician manual, Dr. Stokes determined the job requirements were physically appropriate for claimant from an orthopedic standpoint. Also on May 9, 2011, Dr. Bick, after reviewing Paretti’s automotive technician manual, determined the job requirements were appropriate for claimant from a psychiatric standpoint.

On June 6, 2011, claimant visited Dr. Eric Ehlenberger and requested a cervical MRI, which the doctor ordered that day. The cervical MRI was conducted on June 9, 2011.

Following Dr. Stokes’ and Dr. Bick’s approvals of claimant’s return to work, claimant returned on June 29, 2011. Mr. Diebold again observed the same level of decreased productivity. Several weeks later, on July 19, 2011, claimant, Mr. Diaz, and Mr. Diebold met to assess claimant’s return to work. At this meeting, claimant expressed satisfaction with his employer’s efforts to render the work environment suitable for him; Mr. Diebold likewise expressed satisfaction with claimant’s efforts in regard to his job duties. Also at this meeting, claimant reported one instance where he did not receive the necessary assistance, but this was determined to be an unusual circumstance due to the shop foreman’s absence.

|7On August 22, 2011, claimant, Mr. Diaz, Mr. Diebold, and Mr. Lacoste met again to assess claimant’s progress, wherein claimant again expressed satisfaction with the assistance he was receiving. Indeed, Brandon Vail, a fellow mechanic, and Mr. Lacoste both testified that they assisted claimant. Mr. Lacoste and Mr. Diebold stated that there was always someone availablé to lend assistance. Claimant acknowledged that he received assistance from his co-workers “maybe half the time.”

However, at the next meeting on September 12, 2011, Mr. Diaz met with claimant, his wife, and an assistant of claimant’s attorney, wherein claimant revealed that prior to their August 22 meeting, Mr. Die-bold, Mr. Lacoste, and two other individuals, Craig Paretti, the owner, and Joseph Salinas, the accountant, met with claimant in Mr. Diebold’s office. According to claimant, these four men told claimant to go along with whatever Paretti’s representatives would say at the next meeting with Mr. Diaz or else things would not go well for him on the job.

Claimant also informed Mr. Diaz that he had been the target of pranks and verbal abuse since his return to work. He explained to Mr. Diaz that the lock on his toolbox had been superglued, that he received a note stating he would be fired for faking an injury, and that he had been called derogatory names by some of his coworkers.

Claimant further informed Mr. Diaz that there are various tasks with his job which require him to contort his left arm in a manner such that it causes significant pain and prevents him from performing his job duties. This even occurs when claimant is not lifting an object over fifty pounds. At trial, claimant reiterated this, testifying that he was still “[un]able to perform [his] job up to what [he] was really expected to do,” struggling to lift objects over thirty pounds.

On September 15, 2011, Mr. Diebold and Mr. Lacoste met with Mr. Diaz, wherein they denied that any meeting had occurred with claimant, Mr. Paretti, and 18Mr. Salinas, or that any threats had been made. Again at trial, Mr. Diebold and Mr. La-coste reiterated their denial of the meeting with claimant, Mr. Paretti, and Mr. Salinas. Mr. Diebold and Mr. Lacoste also denied knowledge of the superglue incident, and explained that the note was a practical joke of which claimant was, not the only recipient. They also explained that the atmosphere in the shop is jocular, where technicians constantly tease one another and use Amigar language.

This was corroborated by testimony at trial, where Mr. Diebold, Mr. Lacoste, Mr. Vail, and claimant himself described the atmosphere of the shop as jocular. Everyone participated in cursing and practical jokes, including claimant. And claimant’s three co-workers testified that this atmosphere did not change after claimant’s injury and that claimant continued to participate in the jocularity.

Mr. Vail elaborated on the note prank, explaining that he placed notes in the tool boxes of four mechanics, including claimant, informing each mechanic that he would be fired. One note read: “You’ll be fired for living on the Westbank.” A second: “You’ll be fired. You didn’t laugh.” A third: ‘You’ll be fired. I found you sleeping in the car again.” And claimant’s note read: ‘You’ll be fired for fake injury.” According to Mr. Diebold, Mr. Lacoste, and Mr. Vail, this was perceived as a joke about which everybody laughed and about which there were no complaints. In fact, Mr. Diebold testified that claimant told him he knew the note was a joke.

On September 13, 2011, Dr. Biek found claimant “was getting more depressed [and] more anxious,” and so ordered claimant to cease working with Paretti. He explained that claimant’s psychiatric state did not prevent him from working as a mechanic, but only from working with Par-etti.

After leaving the employ of Paretti, claimant, with the assistance of Mr. Diaz, began searching for other job opportunities consistent with claimant’s educational, vocational, and physical abilities, as well as within his geographical |9area. Mr. Diaz identified the first full-time job fitting these parameters on November 30, 2011, which Dr. Stokes approved on December 1, 2011. This job paid a wage of $30.00 per hour. Claimant testified that he applied for this job but was not hired.

On December 8, 2011, claimant visited another psychiatrist, Dr. Richard Roniger, who diagnosed him with “Adjustment Disorder,” which the doctor believed to be related to claimant’s September 2009 accident and subsequent surgical procedures. Dr. Roniger also diagnosed claimant with “Occupational Problem,” which he attributed to claimant’s situation with his coworkers.

On January 18, 2012, the workers’ compensation judge (“WCJ”) appointed Dr. Harold Ginzburg as an independent medical examiner in the field of psychiatry to examine claimant. Dr. Ginzburg evaluated claimant on March 10, 2012, diagnosed him with “adjustment disorder with mixed anxiety and depressed mood,” and concluded that “[t]here is no psychiatric/behavioral health reason why [claimant] should not immediately return to the workplace....”

PROCEDURAL HISTORY

On March 7, 2011, claimant filed a disputed compensation claim, Form 1008, with the Office of Workers’ Compensation (“OWC”), disputing the non-authorization of Dr. Stokes’ cervical MRI recommendation. On March 21, 2011, Paretti filed its answer to claimant’s compensation claim, in which it denied claimant’s neck injury was a result of a work accident and refused to compensate claimant for the treatment thereof.

On October 31, 2011, claimant was permitted to supplement his disputed compensation claim with the addition of his psychological injury and treatment, for which he sought compensation.

11 nTrial was held on October 3, 2012, following which, on December 21, 2012, the WCJ issued a judgment, finding that:

(1) claimant injured his left elbow, arm, and fingers on September 9, 2009;
(2) claimant suffered psychological as well as physical injuries from the accident;
(3) claimant failed to establish a causal connexity between his cervical injury and the accident;
(4) claimant is entitled to temporary total disability benefits for his left arm, elbow, and finger injuries, and psychological injuries from September 9, 2009 through September 12, 2011, for any time period that he was not working;
(5) claimant is not entitled to any workers’ compensation benefits for his cervical injury;
(6) claimant is entitled to SEB after September 13, 2011, when he stopped working for Paretti when he earned less than 90 percent of his pre-injury wages;
(7) claimant is entitled to payment of all medical expenses, medication expenses, and transportation expenses for his left arm, elbow, and finger injuries, and psychological injuries;
(8) Paretti will be given credit for all workers’ compensation benefits, which were paid in accordance with law; and
(9) no penalties or attorney’s fees are assessed, other than the statutory attorney’s fees.

On January 2, 2013, claimant filed a motion for a new trial in which he requested a new trial for the limited purpose of specifying the SEB compensation amount. Claimant sought to have the WCJ specify whether he was determined to have any earning capacity, and if not, to specify a “zero earning capacity.”

On January 7, 2013, Paretti filed a motion for a new trial to address:

(1) whether, and to what extent, claimant is entitled to temporary total disability benefits for his left arm, elbow, finger, and psychological injuries from September 9, 2009 through September 12, 2011;
(2) whether, and to what extent, claimant is entitled to SEB after September 13, 2011; and
(3) whether claimant is entitled to payment of all medical, medication, and transportation expenses for psychological injuries.

| nA hearing on the motions for a new trial was held on February 8, 2013, following which, on March 14, 2013, the WCJ ordered the motions granted solely for the limited issue of determining claimant’s earning capacity for the calculation of SEB. On April 8, 2013, the WCJ supplemented her previous ruling and denied Paretti’s motion for a new trial on the issues of temporary total disability benefits between September 9, 2009 and September 12, 2011, and the award of medical benefits for psychological injuries.

The “new trial” was held on May 6, 2013, following which, on May 17, 2013, the WCJ issued a judgment, finding that:

(1) claimant is entitled to SEB from September 13, 2011 through December 1, 2011;
(2) claimant’s earning capacity is calculated at 50 percent of his pre-injury wages;
(3) claimant’s monthly SEB rate is $1,455.70;
(4) claimant has failed to prove his inability to earn 90 percent of his average monthly pre-injury wages after December 1, 2011;
(5) suitable jobs were identified and approved for claimant, effective December 1, 2011; and
(6) claimant is not entitled to any SEB after December 1, 2011.

On June 7, 2013, the WCJ granted Par-etti a suspensive appeal relative to the rulings of December 21, 2012 and May 17, 2013. On September 13, 2013, claimant filed an “Answer to Appeal,” in which he sought an appeal from the WCJ’s findings that:

(1) claimant was only entitled to SEB from September 13, 2011 to December 1, 2011;
(2) claimant has failed to prove his inability to earn 90 percent of his average monthly pre-injury wages after December 1, 2011;
(3) suitable jobs were identified and approved for claimant effective December 1, 2011; and
(4) claimant is not entitled to any SEB after December 1,2011.

| ^ASSIGNMENTS OF ERROR ON APPEAL

On appeal, Paretti assigns the following errors:

(1) the WCJ erred in awarding benefits for psychological injuries sustained in the 2009 accident;
(2) the WCJ erred in finding that claimant suffered a “mental/mental” injury;
(3) the WCJ erred in finding claimant was entitled to SEB from September 13, 2011 to December 1, 2011;
(4) the WCJ erred in finding that claimant’s earning capacity is calculated at 50 percent of his pre-injury wages; and
(5) the WCJ erred in finding claimant is entitled to temporary total disability benefits.

Additionally, claimant raises the following assignment of error on appeal:

(1) the WCJ erred in finding that claimant’s SEB terminated on December 1, 2011.

PARETTPS ASSIGNMENT OF ERROR NUMBER ONE

In its first assignment of error, Paretti argues that the WCJ erred in awarding claimant workers’ compensation benefits for a psychological injury sustained in the September 9, 2009 accident. Paretti asserts that claimant failed to prove his psychological injury was caused by the accident and so was not entitled to compensation benefits therefor.

To be entitled to workers’ compensation benefits, the claimant must prove that there was a work-related accident, resulting in a disability that was caused by the accident. McCray v. Intralox, Inc., 07-1036 (La.App. 5 Cir. 5/27/08), 987 So.2d 267, 270-71. The claimant bears the burden of establishing this causal connection by a reasonable preponderance of the evidence. Id. at 271. Yet, in the case of mental injury, as is at issue here, the claimant’s burden of proof is heightened to the standard of clear and convincing evidence. La. R.S. 23:1021(8)(c) provides: “A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising 11sout of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.” In addition, the mental injury must be “diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition [must meet] the criteria as established in the most current issue of the Diagnostic and Statistical Manual [“DSM”] of Mental Disorders presented by the American Psychiatric Association.” La. R.S. 23:1021(8)(d).

The determination of whether an employee is entitled to workers’ compensation benefits is based on the facts and circumstances of each case, considering that the laws governing workers’ compensation must be construed liberally in favor of the employee. McCray, supra. Plus, in workers’ compensation cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Fleming v. Garda Sec., 10-1021 (La.App. 5 Cir. 5/10/11), 65 So.3d 763, 768. Under this standard, this Court may only reverse a WCJ’s factual determination if we find from the record that a reasonable factual basis for the finding does not exist and the finding is manifestly erroneous. Chauvin v. Terminix Pest Control, Inc., 11-1006 (La.App. 1 Cir. 6/28/12), 97 So.Sd 476, 482. Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the fact-finder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Id. In reviewing the factual findings of the trial court, the appellate court does not retry the case, does not make credibility decisions, and does not make conclusions and draw inferences from the factual and credibility determinations. That is the role of the trial court. Id.

114In the instant case, it is beyond dispute that claimant injured his left elbow in a-work-related accident on September 9, 2009. The WCJ made this factual finding, as well as found that claimant suffered a mental injury caused by his work-related accident. Paretti disputes this latter finding, but we find there exists in the record a reasonable factual basis supporting this conclusion.

Dr. John Bick, claimant’s treating psychiatrist, diagnosed claimant with severe major depressive disorder and found this bore a direct causal relation to claimant’s September 2009 accident. He explained: “[Claimant] had feelings of worthlessness because he was unable to work. His work had always been important to him as a source of self-esteem, and it seems that the overwhelming probability is that his depression and anxiety were related to the accident.” Dr. Bick further testified that his diagnosis of claimant’s condition was based on his determination that claimant’s symptoms met the criteria for the condition as established in the “DSM-IV-TR,” which, at the time of Dr. Bick’s diagnosis, was the latest edition of the DSM. Additionally, Dr. Roniger found claimant’s “Adjustment Disorder” was related to his September 2009 accident and subsequent surgical procedures.

In light of Dr. Bick’s and Dr. Roniger’s testimony, we find there was a reasonable factual basis for the WCJ’s determination that claimant’s mental injury was caused by the injury he sustained in his workplace accident on September 9, 2009. The WCJ did not manifestly err in this determination. This assignment of error is without merit.

PARETTI’S ASSIGNMENT OF ERROR NUMBER TWO

In its second assignment of error, Paret-ti argues that the WCJ erred in finding that claimant suffered a “mental/mental” injury caused by workplace | ir,harassment, thus entitling him to workers’ compensation benefits beginning on September 12, 2011. Claimant responds that he neither claimed a “mental/mental” injury, nor did the WCJ award benefits therefor.

A review of claimant’s original and supplemental disputed compensation claims reflects that he did not seek benefits for a “mental/mental” injury caused by workplace harassment. Further, the WCJ’s judgments do not reflect that claimant was awarded benefits for a “mental/mental” injury caused by workplace harassment. This assignment of error is without merit.

PARETTI’S ASSIGNMENT OF ERROR NUMBER THREE AND CLAIMANT’S ASSIGNMENT OF ERROR

In its third assignment of error, Paretti argues that the WCJ erred in awarding claimant SEB from September 13, 2011 until December 1, 2011. Paretti contends that claimant is not entitled to SEB beyond September 13, 2011 because he left Paretti’s employ on account of workplace harassment, not his work-related injury, and because claimant was able to earn at least 90 percent of his pre-injury wages. In his only assignment of error, claimant argues that the WCJ erred in finding that his SEB terminated on December 1, 2011. Since these assignments of error are interrelated, they are discussed together.

The purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard, Parish Sheriff’s Office, 09-2793 (La.1/9/11), 56 So.3d 170, 174 (quotation omitted). An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn 90 percent or more of his average pre-injury wage. Id. (citing 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 llfihis inability to earn that amount under the facts and circumstances of the individual case. Id. If the employee meets this initial burden, it then shifts to the employer to prove, by a preponderance of the evidence, 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 location. Id. (citing La. R.S. 23:1221(3)(c)(i)).

The employee’s initial burden implicitly requires the employee to show that the injury, and not some other cause, resulted in his inability to retain his pre-injury job. Poissenot at 176. 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 percent of his pre-injury wages was not the result of his injury and that the employee is in fact able to earn 90 percent of his pre-injury wages in some capacity. Id. The trial court, in determining if an injured employee has upheld his burden, may and should take into account all those factors which might bear on an employee’s ability to earn a wage. Id. at 174. This Court has recognized an injured employee’s testimony that he is no longer able to return to his pre-injury employment, without more, is insufficient to prove entitlement to SEB. See Wilson v. Metro. Dev. Ctr., 12-487 (La. App. 5 Cir. 3/13/13), 113 So.3d 261, 266.

In Poissenot, supra, the Louisiana Supreme Court reversed a court of appeal’s upholding a WCJ’s award of SEB to the claimant upon the basis that both the WCJ and appellate court applied the incorrect standard in determining whether the claimant had met his initial burden of proof. Id. at 175. The supreme court found that the lower courts had mistakenly focused on whether the claimant could return to the same type of work he was performing before the accident, rather than whether the claimant could earn 90 percent of his pre-injury wages. Id. The court stressed that the workers’ compensation statute clearly places its focus on the |17amount of wages earned before and after the accident, not the type of occupation or the type of work performed. Id. With this standard in mind, the court examined all the evidence that bore upon the claimant’s inability to earn 90 percent or more of his pre-injury wages and determined that the claimant did not meet his initial burden. In reaching this determination, the court found there was a lack of evidence supporting the claimant’s inability to earn 90 percent or more of his pre-injury wages. Id. at 175-79.

Of significance, the court found there was no medical evidence supporting the claimant’s position. Poissenot at 178. The court noted that both the functional capacity evaluation and the claimant’s doctor cleared him to return to medium level work, the level at which his pre-injury job was rated. The court also noted that although the claimant complained of pain, he rated it at a level of two on a ten-point scale, which his doctors evidently did not feel prevented him from returning to medium level work. Id. at 177-78.

Turning to the instant case, we first consider whether claimant bore his initial burden of proving by a preponderance of the evidence that he sustained a work-related injury that resulted in his inability to earn 90 percent or more of his average pre-injury wages. We begin this inquiry by noting that claimant’s pre-inju-ry wages were a weekly average of $1,017.00. From this, we find claimant’s average monthly wages prior to his injury were $4,407.00. Therefore, claimant was required to prove by a preponderance of the evidence that his injury resulted in his inability to earn at least $8,966.30 per month.

In reviewing the WCJ’s determination that an employee has discharged his burden of proof, this Court is bound by the manifest error standard of review. Chau-vin, 97 So.Bd at 481-82. And, in determining whether a WCJ manifestly 11serred in finding that an injured employee bore his initial burden, as we are tasked with here, we must examine all evidence that bears upon the employee’s inability to earn 90 percent or more of his pre-injury wages. Poissenot at 174. With these precepts in mind, we now turn to the facts at hand.

Following claimant’s unsuccessful first surgery, he underwent a functional capacity evaluation in February 2010, which found that claimant demonstrated strength in the “medium” level category, corresponding with the Department of Labor’s rating of an automotive mechanic. The FCE concluded that while claimant displayed the strength consistent with the classification of his job, his displayed strength was not consistent with the lifting as he stated was required by his job. Claimant reported that the essential functions of his job include the handling of differentials approximately weighing at or above 100 pounds and wheels approximately weighing 80 to 40 pounds. This description was, in part, corroborated by the testimony of Mr. Diebold and Mr. Lacoste, who both estimated that the heaviest object a mechanic would be required to lift without assistance is a rim and tire, which weighs approximately 30 to 40 pounds. With respect to differentials, Mr. Diebold explained they can weigh up to 180 pounds, but a mechanic is not required to lift a differential without assistance.

Additionally, on the second day of testing, the FCE noted that claimant displayed increased blood pressure, increased complaints of pain, decreased functional performance, and decreased range of motion and strength in his left elbow. Throughout the two-day evaluation, claimant rated his lowest level of pain at three and his highest at seven, on a ten-point scale.

Claimant’s second surgery was conducted on April 20, 2010. This proved to be ineffective as Dr. Stokes subsequently found irritation in claimant’s ulnar nerve, which was also confirmed by the neurologist, Dr. Fleming, who noted “moderate ulnar nerve slowing across [claimant’s] left elbow.” This led to claimant’s third 113surgery in September of 2010, following which Dr. Fleming found “marked improvement” in the condition of claimant’s ulnar nerve, a conclusion disputed by claimant who continued to experience numbness. In December of 2010, Dr. Stokes released claimant to limited duty and restricted him to lifting no more than fifty pounds.

Then, in March of 2011, claimant underwent his second functional capacity evaluation, which found that he again demonstrated strength in the medium level category. The FCE also determined that claimant’s “subjective complaints concerning his left elbow appeared to be reasonable based on his medical history and demonstrated ability.” Of note, the FCE indicated that when performing two consecutive exercises of carrying 50 pounds with his left arm, claimant rated his perception of this weight at nine on a ten-point scale, ie., “extremely heavy,” and rated the pain in his left elbow at five on a ten-point scale. ' The FCE concluded that claimant demonstrated the ability to return to work as a mechanic with the noted temporary restriction to avoid the repetitive lifting of more than 35 pounds from the ground.

On April 6, 2011, Dr. Stokes approved claimant’s return to work subject to the restrictions as outlined in the FCE. And on May 9, 2011, after reviewing Paretti’s automotive technician manual, both Dr. Stokes and Dr. Bick determined the job requirements were appropriate for claimant from orthopedic and psychiatric standpoints, respectively.

Yet, during each of the three times claimant returned to work, Mr. Diebold found he performed at no more than 50 percent of his pre-injury capacity. Despite Mr. Diebold’s belief that claimant’s reduced performance, after his initial return, was due to his lack of motivation, there was conflicting testimony on this point. And although Mr. Diebold’s testimony concerned claimant’s performance, as opposed to his wage-earning ability, the evidence established that claimant’s 12nPosition is compensated based on commission such that his wages are earned in direct proportion to the amount and type of work performed. Indeed, claimant testified that the “heavier” jobs, such as “head work” and differentials, are the most lucrative — neither of which he claimed he was physically able to perform.

Moreover, claimant informed Mr. Diaz that there are various tasks which require him to contort his left arm in such a manner that it causes significant pain and prevents him from performing his job duties. He explained that this even occurs when he is not lifting an object over fifty pounds. Claimant reiterated this at trial, testifying that he was still “[un]able to perform [his] job up to what [he] was really expected to do,” struggling to lift objects over thirty pounds. He also acknowledged that he received assistance from his co-workers “maybe half the time.”

In addition to his physical limitations, claimant suffered from depression and anxiety, which Dr. Bick found were caused by claimant’s injury and his resultant physical inability to work and earn his pre-injury wages. Claimant’s depression and anxiety worsened, which Dr. Bick opined was a result of the September 2009 accident and the work environment. Dr. Bick recognized the possibility that claimant’s depression could cause him to misperceive workshop jocularity as hostility. Accordingly, in September of 2011, finding claimant’s psychiatric state compelled his removal from the work environment, Dr. Bick ordered him to cease working with Paretti.

After leaving the employ of Paretti in September 2011, the evidence established that claimant and Mr. Diaz searched for job opportunities consistent with claimant’s educational, vocational, and physical abilities, as well as within his geographical area. Mr. Diaz first identified a full-time position fitting these parameters on November 30, 2011. The position was an automobile and light |⅞1 truck mechanic at Leson Chevrolet in Harvey, Louisiana, which paid a wage of $30.00 per hour. This position required “medium” level strength such that a mechanic lifts fifty pounds “occasionally,” twenty-five pounds “frequently,” and ten pounds “continuously.” Dr. Stokes approved this position on December 1, 2011, after which Mr. Diaz confirmed that it was still available. Mr. Diaz subsequently identified many other similar full-time positions approved by Dr. Stokes. Claimant testified that he applied for all of the jobs located by Mr. Diaz, as well as jobs he located himself, but was not hired for any positions.

As the foregoing demonstrates, there was varying and conflicting evidence regarding whether and to what extent claimant’s work-related injury limited his ability to perform his job. Bearing in mind that the fact-finder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review where conflicting evidence exists, and cognizant that workers’ compensation law must be construed liberally in favor of the employee, based on the record before us, we cannot say the WCJ’s resolution of this conflicting evidence in favor of claimant was unreasonable. And, on account of the evidence that claimant was able to perform at no more than 50 percent of his pre-injury capacity, enabling him to earn no more than 50 percent of his pre-injury wages, we find there was a reasonable factual basis supporting the WCJ’s finding that claimant was unable to earn at least 90 percent of his average pre-injury wages. Accordingly, we conclude that the WCJ did not manifestly err in finding claimant upheld his burden of proving by a preponderance of the evidence that he sustained a work-related injury resulting in his inability to earn 90 percent or more of his average pre-injury wages.

The burden of proof then shifted to Paretti to prove, by a preponderance of the evidence, that claimant was physically able to perform a certain job and that the |22job was offered to claimant or that the job was available to claimant in his or the employer’s community or reasonable geographic location. The WCJ’s conclusion that claimant was entitled to SEB from September 13, 2011 until December 1, 2011 was based upon her determination that Paretti upheld this burden, proving that claimant was physically able to perform a certain job that was available to him on December 1, 2011 in his reasonable geographic location. We now consider whether the WCJ manifestly erred in this determination.

In Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 557, the Louisiana Supreme Court clarified the employer’s burden as follows:

[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence: (1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region; (2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and (3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
By “suitable job,” we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.

Upon review, we find that the Leson Chevrolet position, the first to be identified by Mr. Diaz, satisfied the Banks elements. First, as it is in Harvey, the position is reasonably located within claimant’s geographic region. Second, with a wage of $80.00 per hour, assuming a 40-hour work week, claimant would earn an average of $1,200.00 per week, with average monthly wages of $5,200.00. And third, the record reflects that claimant was notified of this position on November 30, 2011, and the position was confirmed to still be available following Dr. Stokes’ approval on December 1, 2011. Furthermore, despite claimant’s testimony that he | ^applied for but was not hired for this position, the jurisprudence holds that actual job placement, or even an offer of employment, is not necessary to prove the availability of employment. See Banks, 696 So.2d at 556; White v. Cnty. Mkt., 44,699 (La.App. 2 Cir. 9/23/09), 24 So.3d 905, 909.

As regards the position’s “suitability” for claimant’s physical capabilities, we note there was varying evidence on this point. In December of 2010, Dr. Stokes released claimant to limited duty and restricted him to lifting no more than fifty pounds. Claimant’s second FCE in March of 2011 determined that he demonstrated strength in the medium level category in accordance with the classification of the Leson Chevrolet position. The FCE also recommended a temporary restriction to avoid the repetitive lifting of more than 35 pounds from the ground. In April of 2011, Dr. Stokes approved the FCE’s restrictions. Claimant himself testified that he was not comfortable with the fifty-pound limit since he experienced difficulty lifting objects heavier than thirty pounds. The evidence established that the physical demands of the Leson Chevrolet position require mechanics to lift between twenty-five and fifty pounds, with the further specification that they typically lift fifty pounds between 6 and 33 percent of the time, twenty-five pounds between 34 and 66 percent of the time, and ten pounds between 67 and 100 percent of the time.

In view of this evidence, where most of the position’s physical demands comply with Dr. Stokes’ restriction, the FCE’s restriction, and claimant’s own restriction, we find there was a reasonable factual basis for the WCJ’s conclusion that the physical demands of the Leson Chevrolet position were suitable for claimant’s physical capabilities. We also find that because this job was available, with medical approval, on December 1, 2011, the WCJ did not manifestly err in concluding that claimant was not entitled to SEB beyond that date. There is no evidence that claimant was physically able to perform a job that was offered to him l^or was available to him in his or the employer’s community or reasonable geographic location between September 13, 2011 and December 1, 2011. Yet, the evidence established that such a job became available on December 1, 2011. As a result, we find Paretti satisfied its burden and defeated claimant’s entitlement to SEB beyond that date. Therefore, we conclude that the WCJ did not commit manifest error in finding Paretti proved, by a preponderance of the evidence, that claimant was physically able to perform a job available to claimant in his reasonable geographic location. Both Par-etti’s and claimant’s assignments of error on this issue are without merit.

SEB Computational Error

Upon review, we note a computational error in the trial court’s calculation of claimant’s monthly SEB compensation. The WCJ concluded claimant’s monthly SEB compensation was $1,455.70. A review of the May 17, 2013 judgment does not specify how this figure was calculated, yet claimant’s brief to this Court demonstrates that this figure was arrived at utilizing average monthly pre-injury wages of $4,373.10. It seems that this figure was miscalculated, and thus the resulting monthly SEB compensation was also miscalculated. It is apparent that $4,373.10 was derived by first dividing 52 by 12, which yields 4.338 (4½), rounding this quotient down to 4.3, and then multiplying this by claimant’s average weekly pre-injury wages of $1,017.00. This is a misapplication of the provision which provides that “[ajverage monthly wages shall be computed by multiplying [the employee’s] wages by fifty-two and then dividing the product by twelve.” In accordance with this formula, we find that claimant’s average monthly pre-injury wages were $4,407.00.u Then, to calculate monthly SEB compensation, La. R.S. 23:1221(3)(a)(i) provides that SEB monthly compensation is “equal to sixty-six and two-thirds percent of the difference between the average monthly wages at Intime of injury and average monthly wages earned or average monthly wages the employee is able to earn in any month thereafter in any employment or self-employment....” The evidence established that claimant was able to earn 50 percent of his pre-injury wages after his injury. Therefore, with average monthly post-injury wages of $2,203.50 (50 percent of $4,407.00), claimant’s monthly payment of SEB amounts to 66 percent of $2,203.50, or $1,469.00. In light of the WCJ’s conclusion that claimant’s monthly SEB compensation was $1,455.70, we find the WCJ manifestly erred in her calculation of claimant’s monthly SEB. Therefore, the WCJ’s decision awarding claimant SEB compensation at $1,455.70 per month is amended to set claimant’s SEB compensation at $1,469.00 per month. See Dyer v. Gab Bus. Servs., 613 So.2d 801, 805-06 (La.App. 4 Cir.1993), writ denied, 617 So.2d 939 (La.1993).

PARETTI’S ASSIGNMENT OF ERROR NUMBER FOUR

In its fourth assignment of error, Paretti contends that the WCJ erred in finding claimant’s earning capacity is calculated at 50 percent of his pre-injury wages. Paretti argues that the WCJ erred in relying on Mr. Diebold’s testimony that claimant operated at 50 percent capacity after his injury. Paretti contends this was erroneous because Mr. Diebold’s testimony concerned claimant’s performance, not his ability, which Paretti claims was higher than 90 percent on account of Mr. Diebold’s testimony that claimant was unmotivated.

As pointed out by claimant in his brief, there was conflicting testimony regarding claimant’s motivation. Despite Mr. Die-bold’s testimony that claimant was unmotivated, Mr. Lacoste found claimant put forth good effort and was trying. And Mr. Diaz found claimant possessed a positive attitude about returning to work, that he was cooperative, and that he was well-motivated. Also, since claimant was paid by Paretti on a commission basis (ie., based on the amount of work he actually performed), rather than strictly hourly, it is apparent that this would have 12(;motivated claimant to work as much as possible in order to earn as much as possible. Furthermore, the evidence supports the reasonable inference that claimant was somewhat physically limited by his injury. Thus, in light of the conflicting testimony regarding claimant’s motivation, the evidence that claimant was somewhat physically limited by his injury, and Mr. Die-bold’s testimony that claimant performed, and thus earned wages, at 50 percent of his pre-injury capacity, we find there was a reasonable factual basis for the WCJ’s determination that claimant’s earning capacity was to be calculated at 50 percent of his pre-injury wages. The WCJ did not manifestly err in this determination. This assignment of error is without merit.

PARETTFS ASSIGNMENT OF ERROR NUMBER FIVE

In its fifth assignment of error, Paretti argues that the WCJ erred in holding that claimant is entitled to temporary total disability benefits from- September 9, 2009 through September 12, 2011, for any time period that he was not working. Paretti asserts, and claimant agrees, that claimant has been paid all temporary total disability benefits for that time period. Since both parties agree there is no issue regarding temporary total disability benefits, Paretti requests the WCJ’s holding that claimant is entitled to them be stricken from the WCJ’s ruling. We decline this request. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the WCJ’s decision under review is amended to award claimant SEB compensation in the amount of $1,469.00 per month. In all other respects, the WCJ’s decision is affirmed.

AMENDED AND AFFIRMED.

      . Claimant's wife is the general manager of Dr. Ehlenberger’s clinic. On account of this, claimant often obtained various treatments from Dr. Ehlenberger, free of charge. For instance, claimant frequently obtained B12 injections from Dr. Ehlenberger to boost his energy.

      . The record indicates that claimant was paid a wage of $20.00 per hour by Paretti.

      . In its brief, Paretti lists six assignments of error; however, in the arguments section of its brief, Paretti only argues five assignments. In accordance with Rule 2 — 12.4(B)(4) of the Uniform Rules-Courts of Appeal, we will address only those assignments of error that have been argued by Paretti.

      . A "mental/mental” injury refers to a "mental injury caused by mental stress.” See La. R.S. 23:1021(8)(b). This provision provides: Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

      . Both parties stipulated to this at trial.

      . La. R.S. 23:1221(3)(a)(i) provides that "[a]v-erage monthly wages shall be computed by multiplying [the employee's] wages by fifty-two and then dividing the product by twelve.” La. R.S. 23:1021(13) defines “wages” as “average weekly wages.” Hence, ($1,017.00 x 52)/12 = $4,407.00.

      .This figure is 90 percent of $4,407.00.

      . “Head work” evidently refers to work on engine heads.

      . These terms of frequency correspond to percentages of time per day, such that "occasionally” encompasses 6% to 33%, "frequently” encompasses 34% to 66%, and "continuously” encompasses 67% to 100%.

      . Claimant resides in LaPlace, La., which is in St. John the Baptist Parish. The record indicates that Paretti’s place of business is located in Metairie, La., which is in Jefferson Parish, two parishes down-river from claimant’s residence. Harvey, La. is also in Jefferson Parish, across the Mississippi River from Metairie.

      . See note 6, supra.


author: STEPHEN J. WINDHORST, Judge.

text:
    Mabel Daigle, Widow of Lawrence LEJEUNE v. John C. STECK, M.D. and West Jefferson Medical Center.
    No. 13-CA-1017.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 21, 2014.
    Rehearing Denied June 11, 2014.

      George B. Richard, Attorney at Law, Marrero, LA, for Plaintiff/Appellant.
    Stewart E. Niles, Jr., Bert J. Miller, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

|2Plaintiff, Mabel Daigle, appeals from a trial court ruling granting defendant’s motion for summary judgment and dismissing her claims against defendant, John C. Steck, M.D. We affirm the decision of the trial court.

Hurricane Katrina made landfall in Louisiana in August of 2005, causing extensive damage to the Louisiana Gulf Coast, and severely impacting the infrastructure of south Louisiana hospitals. As a result, then Governor Katherine Blanco issued Executive Orders declaring a state of public health emergency, in effect until December 31, 2005 thereby invoking the standard of care for health care providers as set forth in La. R.S. 29:771(2)(c). Section (2)(c) provides that, for private liability: “During a state of public health emergency, any health care providers shall not be civilly liable for causing the death of, or injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.”

| 3On November 28, 2005, during this declared state of public health emergency, Ms. Daigle was operated on by Dr. Steck who performed a laminectomy for a pinched nerve. After several days of what she described as “intense pain,” an x-ray revealed a foreign object near the incision site. A second surgical procedure was performed and the foreign object, a sponge, was removed.

Ms. Daigle filed a complaint with the Medical Review Board, and the Medical Review Panel rendered its decision on September 17, 2009, finding that “The evidence does not support the conclusion that the defendants (West Jefferson Medical Center and Dr. John C. Steck) failed to meet the applicable standard of care as charged in the complaint.” The Panel further said that the prevailing standard of care was that set forth in La. R.S. 29:771B(2)(c), and that there was no evidence of gross negligence or willful misconduct.

Ms. Daigle filed her petition for damages on December 23, 2009, against Dr. Steck and West Jefferson Medical Center. Ms. Daigle did not request service on West Jefferson Medical Center, and it was dismissed from this suit on June 17, 2010.

Thereafter, Dr. Steck filed a motion for summary judgment. In the motion, Dr. Steck argued the applicability of La. R.S. 29:771B(2)(c). He contended that Ms. Dai-gle was requiréd to prove that he was grossly negligent or committed willful misconduct. Dr. Steck stated that Ms. Daigle did not have any expert witness to establish gross negligence, and therefore she would not be able to meet her burden of proof at trial. Ms. Daigle countered that the State of Emergency Proclamation did not apply to surgery and medical providers and patients that were not related to or part of Hurricane Katrina. She further argued that Dr. Steck was grossly negligent, and that his liability was established by the doctrine of res ipsa loquitor. Ms. Daigle introduced a medical report in the form of a letter from Dr. RK. Andrew Larson, a board certified general surgeon with a general and bariatric surgery practice in Palm Beach, Florida. He opined that “leaving a foreign body unintentionally in the patient then closing the operative site then discharging the patient home was a negligent act below the standard of care.”

On May 22, 2013, the trial court rendered a judgment on the motion for summary judgment, giving Ms. Daigle until June 21, 2013 to “submit evidence into the record, from a surgery expert, through a deposition or an affidavit, showing that she can support her burden of proof at trial of proving gross negligence or willful conduct, in accordance with La. R.S. 29:771[.]” Thereafter, Ms. Daigle timely produced the same letter from Dr. Larson, after the doctor had it notarized. On August 14, 2013, Ms. Daigle produced a second affidavit from Dr. Larson. On September 27, 2013, the trial court granted Dr. Steck’s motion for summary judgment, finding that the evidence provided by the plaintiff was insufficient to show that she could support her burden of proof at trial. After the denial of her motion for new trial, Ms. Daigle appealed.

In this appeal, Ms. Daigle disputes the trial court’s granting the motion for summary judgment. She challenges the trial court’s application of La. R.S. 29:771, arguing that La. R.S. 29:771 is inapplicable because her operation was in no way related to Hurricane Katrina. She contends that the trial court did not properly consider the doctrine of fault as stated in La. C.C. art. 2315. She also contends that the doctrine of negligence per se is applicable, that it was up to the defendant to prove that he was not negligent, and that she was not required to provide an affidavit or other pleading in her defense against the motion for summary judgment. Finally, Ms. Daigle claims that the doctrine of res ipsa loquitur is applicable in this case.

I..¡Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo using the identical criteria that govern the district court’s consideration of whether summary judgment is appropriate. In re Succession of Holbrook, 13-1181 (La.1/28/14), — So.3d —, 2014 WL 340980. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

As stated supra, La. R.S. 29:771 B(2)(c) provides that “During a state of public health emergency, any health care providers shall not be civilly liable for causing the death of, or, injury to, any person or damage to any property except in the event of gross negligence or willful misconduct.” (Emphasis added.)

Despite Ms. Daigle’s arguments to the contrary, La. R.S. 29:771 does not provide for a limited set of health care providers, nor does it limit its application to | fionIy those medical personnel rendering emergency assistance voluntarily due to the emergency in the area.

Not only does plaintiff argue the applicability of the medical malpractice statutes, she also contends that Dr. Steck is liable under general negligence princi-pies as set forth in La. C.C. art. 2315. “It is a fundamental rule of statutory construction that when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Burge v. State, 10-2229 (La.2/11/11), 54 So.3d 1110, 1113; Pignona v. Father, 13-192. (La.App. 5 Cir. 10/9/13), 128 So.3d 390, 398. Therefore, the burden of proof set forth in the medical malpractice statutes prevail over general negligence. Furthermore, the burden of proof set forth in La. R.S. 29:771 relative to medical malpractice during a declared state of medical emergency prevails over the more general medical malpractice statutes.

As such, in order to prevail in this medical malpractice action, plaintiff was required to present evidence to prove that Dr. Steck was grossly negligent or committed willful misconduct. “Gross negligence”

... has been defined as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Gross negligence has also been termed the “entire absence of care” and the “utter disregard of the of prudence (sic), amounting to complete neglect of the rights of others.” Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.” “There is often no clear distinction between such [willful, wanton, or reckless] conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning.” (Citations omitted.)

Rabalais v. Nash, 06-0999 (La.3/9/07), 952 So.2d 653, 658.

In support of the motion for summary judgment, defense counsel presented the opinion of the Medical Review Panel, which unanimously found that there was Uno evidence of gross negligence or willful misconduct, and also Dr. Steck’s affidavit setting forth the operating room protocol during surgical procedures, including the counting of sponges. Dr. Steck’s affidavit clearly states that each hospital has its own operating room protocol and that the nursing staff assisting is responsible for sponge count. Dr. Steck’s affidavit states that “It is not only reasonable but necessary for a surgeon to rely on intraopera-tive sponge count by the operating room staff to confirm that all foreign bodies have been removed from the surgical site, along with visual and manual inspection by the surgeon.” The affidavit explains that the operating staff is responsible for “setting up” the equipment, which includes instrument and sponge count. Furthermore, the staff adds new sponges as necessary and the doctor performing the surgery is not always aware that more sponges have been added to the baseline count. Dr. Steck avers that

Because a surgeon must stay focused on the patient and because the surgeon’s hands are occupied at the surgical site, I, like any surgeon, must rely on the nursing staff to maintain an accurate count of the sponges being utilized during the procedure. It is not realistic to expect a surgeon to keep an accurate count of the number of sponges utilized during a procedure, particularly where the procedure may take several hours and may in fact involve multiple surgeons. After confirming the correct baseline count, the nursing staff, responsible to the hospital, tracks the sponges as they are removed or used by having one person write notes as sponges are added. The surgeon has no such opportunity because he cannot break scrub and must focus her (sic) attention on the patient’s anatomy and medical needs.

The affidavit also states that the hospital, and not the doctor, is responsible for the hiring and placement of the surgical staff. The affidavit states that the nursing staff reports difficulty in verifying the sponge count, a surgeon can obtain an intra-opera-tive x-ray, which may or may not discover a retained foreign body. Dr. Steck reported that “In this case the nursing staff reported no difficulty with the count |sand confirmed that all sponges were accounted for. Thus, there was no basis on which to request an intra-operative x-ray.”

In opposition to the motion for summary judgment, Ms. Daigle presented a medical report in the form of a letter from Dr. Andrew Larson, who stated that “... leaving a foreign body unintentionally in the patient then closing the operative site then discharging the patient home is indeed a negligent act below the standard of care.” The first hearing on the merits of the motion for summary judgment was conducted on May 16, 2013. During the hearing, the trial court made a comment that the action of leaving a sponge during an operation sounded like gross negligence to him. Nevertheless, the court found the letter insufficient to support the claim, and it granted Ms. Daigle until June 21, 2013 to submit evidence in the form of an affidavit or a deposition, showing that she could support her burden of proving gross negligence at trial.

In response, prior to June 21, 2013, Ms. Daigle submitted the affidavit of Dr. Larson, which merely stated that his prior medical report was true and accurate to the best of his knowledge, information and belief. On September 17, 2013, well after the date ordered by the trial court and one day prior to the next scheduled hearing on the motion for summary judgment, Ms. Daigle submitted a second affidavit from Dr. Larson, dated August 14, 2013 that merely states that “I am of the medical opinion that leaving a sponge in the body of MABEL DAIGLE LEJEUNE at the operation on November 28th, 2005 constitutes the gross negligence of DR. JOHN C. STECK.” No explanation of this statement is provided by Dr. Larson; it is merely attached to his prior report.

18At the hearing, the trial court granted summary judgment, finding that the evidence submitted prior to June 21, 2013 failed to show that Ms. Daigle could sustain her burden of proof at trial. During the hearing, the court specifically stated that it would not consider the affidavit filed after June 21, 2013.

Considering the evidence presented by Ms. Daigle, we find no error in the ruling of the trial court granting summary judgment.

Ms. Daigle also contends that the trial court erred in failing to apply the doctrine of res ipsa loquitur to the facts of this case. In support of this claim, she cites jurisprudence from the Louisiana Supreme Court and Courts of Appeal for the proposition that “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” Pfiffner v. Correa, 94-0924 (La.10/17/94), 643 So.2d 1228, 1233. However, the Pfiffner court went on to say that “Even so, the plaintiff must also demonstrate by a preponderance of the evidence a causal nexus between the defendant’s fault and the injury alleged.” Id. at 1284. Here, Ms. Daigle had to prove that Dr. Steck was grossly negligent or that his misconduct was willful. The uncontrovert-ed evidence presented in this case fails to present an issue of physician fault through gross negligence of willful misconduct.

For the above discussed reasons, the trial court’s ruling granting summary judgment and dismissing plaintiffs suit against Dr. Steck is affirmed. All costs are assessed against appellants.

AFFIRMED.

      . Executive Order 05-33 § 1, 05-47 §§ 4 & 5, and 05-72 §§ 4 & 5.

      . In brief, Ms. Daigle suggests that this comment was a ruling of the court, and should have been followed by the trial court in ruling on the motion for summary judgment. However, this remark was not a ruling, nor was it a comment on the strength or adequacy of plaintiffs evidence. The trial judge, in ruling on the motion for summary judgment, was not bound by this comment from a previous judge.


author: JOY COSSICH LOBRANO, Judge.

text:
    Larry Van JACKSON, Jr. v. John C. PFEIFER.
    No. 2013-CA-1261.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2014.
    Rehearing Denied June 2, 2014.
    Christopher J. Davidson, John A.E. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Plaintiff/Appellant.
    Rachel Wisdom, John Mark Fezio, Stone Pigman Walther Wittman L.L.P., New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO.
   JOY COSSICH LOBRANO, Judge.

| plaintiff, Larry Van Jackson (“Jackson”) appeals the April 22, 2013 trial court judgment overruling his exception of litigious redemption filed in response to the reconventional demand of Marquee Investment Properties, L.L.C. (“Marquee”). Marquee filed a motion to dismiss the appeal filed by Jackson.

The following is a chronology of relevant events in this matter:

• January 24, 1992 — John C. Pfeifer (“Pfeifer”), the original defendant in this case, purchased the property in New Orleans, Louisiana located at 7049 Magazine Street/203 Audubon Street (“the property”) and resided there until Hurricane Katrina in August 2005.
• August 2005 to May 2008 — Pfeifer did not occupy the property but claims that he visited it regularly.
• May 2008 — Pfeifer moved out of Louisiana but alleges that he intended to return to the property and never intended to relinquish possession of the property.
• Sometime after May 2008 — The property at issue was declared blighted by the City of New Orleans.
• August 18, 2010 — Jackson alleged that on this date, he took possession of the property, and began paying property taxes, maintaining the yard and making other expenditures to maintain the property.
• August 27, 2010 — Jackson filed an Affidavit of Possession on behalf of his company, Citywide Development Services, LLC, (“CDS”) in the Notarial Archives of Orleans Parish, stating that the affiant took corporeal possession of the property at issue in accordance with La. R.S. 9:5633 on August 18, 2010. CDS did not ^comply with the requirements of La. R.S. 9:5633 within the 270-day time limit set forth in the statute.
• November 21, 2012 — Jackson filed, in his name only, a petition for possession of the property, against Pfeifer, the then-record owner of the property.
• January 10, 2013 — Pfeifer sold the property to Marquee for $48,000.00, and also transferred to Marquee all rights and actions to which Pfeifer was or may have been entitled regarding the property.
• January 22, 2013 — Marquee filed a motion to be substituted as defendant in place of Pfeifer due to the January 10, 2013 sale of the property from Pfeifer to Marquee. The trial court granted the motion.
• January 22, 2013 — Marquee filed an answer to Jackson’s possessory action, and a reconventional demand against Jackson and others. In the reconven-tional demand, Marquee asserted, among other things, that it is the sole owner of the property.
• February 22, 2013 — Jackson filed a peremptory exception of litigious redemption in response to Marquee’s re-conventional demand.

In the exception of litigious redemption, Jackson noted that he initiated this litigation seeking to assert possessory and, ultimately, ownership rights against Pfeifer. Jackson alleged that he made substantial improvements to the property, and is entitled to compensation for the costs of these improvements and the enhanced value of the property as a good faith possessor. Because Pfeifer transferred his claims and interest in these proceedings to the substituted defendant, Marquee, Jackson alleged that he was exercising his right of litigious redemption, which entitles him to pay the sum of $40,000.00 to Marquee in exchange for all rights acquired by Marquee in its transaction with Pfeifer, | Marquee opposed the exception of litigious redemption, which was denied by the trial court on April 22, 2018. Jackson appealed.

Before addressing the trial court’s judgment of April 22, 2018, we note that the judgment appealed from is a non-appeal-able interlocutory judgment. See La. C.C.P. articles 1841 and 2083(C). However, this Court has converted appeals of non-appealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within the thirty-day period allowed for the filing of applications for supervisory writs. Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C., 2009-1528, p. 4 (La.App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152; Ordoyne v. Ordoyne, 2007-0235, p. 4 (La.App. 4 Cir. 4/2/08), 982 So.2d 899, 902; Ganier v. Inglewood Homes, Inc., 2006-0642, p. 2 (La.App. 4 Cir. 11/8/06), 944 So.2d 753, 756.

In this case, the motion for devolutive appeal was filed within the thirty-day period applicable to supervisory writs contained in Uniform Rules — Courts of Appeal, Rule 4-3. Accordingly, we will convert the appeal of the April 22, 2013 judgment to an application for supervisory writs, and consider it under our supervisory jurisdiction.

Plaintiff filed his peremptory exception of litigious redemption pursuant to La. C.C. article 2652. The trial court overruled the exception, finding La. C.C. article 2652 inapplicable in this matter, and, in effect, dismissing Jackson’s claim for redemption of a litigious right. We agree.

La. C.C. article 2652 states:

|4When a litigious right is assigned, the debtor may extinguish his obligation by paying to the assignee the price the assignee paid for the assignment, with interest from the time of the assignment.
A right is litigious, for that purpose, when it is contested in a suit already filed.
Nevertheless, the debtor may not thus extinguish his obligation when the assignment has been made to a co-owner of the assigned right, or to a possessor of the thing subject to the litigious right.

La. C.C. article 1756 defines an obligation as follows:

An obligation is a legal relationship whereby a person, called the obligor, is bound to render a performance in favor of another, called the obligee. Performance may consist of giving, doing, or not doing something.

Under Louisiana law, “debtor” is synonymous with “obligor.” La. C.C. article 1756, comment (c). Jackson was not and is not a debtor/obligor of Pfeifer. Nothing in the record indicates that Jackson and Pfeifer ever had a legal relationship whereby Jackson was bound to render a performance in favor of Pfeifer. Jackson is not a “debtor” within the meaning of La. C.C. article 2652. Therefore, Jackson cannot, under La. C.C. article 2652, claim the right to litigious redemption from Marquee.

For these reasons, the writ application is granted and the trial court judgment is affirmed. The motion to dismiss the appeal filed by Marquee is denied.

MOTION TO DISMISS APPEAL DENIED; APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRITS; WRIT APPLICATION GRANTED; JUDGMENT AFFIRMED.

      . La. R.S. 9:5633 provides a method of acquiring ownership of blighted property by means of the acquisitive prescription of three years.

      . Pfeifer did not file an answer to Jackson’s possessory action.

      . Included in the exception is this statement: "Plaintiff and defendant in reconvention [Jackson] hereby exercises [sic] his right of litigious redemption by payment of $40,000.00 to Marquee Investment Properties, LLC in exchange for reimbursement of the $40,000 payment made for the property rights in litigation in these proceedings.” We note that the record does not show that Jackson tendered any money to Marquee, or put any sum into the registry of the court. We also note that Marquee purchased the property from Pfeifer for the sum of $48,000.00, not $40,000.00.

      . In Jackson's memorandum filed in opposition to Marquee's motion for injunctive relief, Jackson twice refers to himself as a creditor of Pfeifer.