author: PETTIGREW, J.

text:
    Jimmy SPRUELL v. Thomas DUDLEY.
    No. 2006 CA 0015.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Edward Grady Partin, Baton Rouge, for Plaintiff-Appellee Jimmy Spruell.
    H. Craig Davidson, Jr., Baton Rouge, for DefendanL-Appellant Thomas “Tommy” Dudley.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

| gDefendant, Tommy Dudley (“Mr.Dudley”), appeals a judgment dated August 16, 2005, that permanently restrains and enjoins Mr. Dudley, his heirs, successors, and assigns, from constructing on and/or using his residential lot within Mill Creek Subdivision, Second Filing, as a right of way for utilities or ingress and egress to adjacent properties owned by Mr. Dudley that are situated outside of the subdivision. We affirm.

FACTS

In our previous opinion in this matter, we noted the following facts:

Mill Creek Subdivision is a residential subdivision situated in East Feliciana Parish. The same owners created Mill Creek Subdivision in two separate stages — each filing was made with reference to a plan of subdivision or plat and a set of restrictive covenants. The first filing consisted of fifteen (15) restricted lots, some fronting the public road, Hwy. 409, with the remainder situated on either side of the intervening Mill Creek Lane. The second filing consists of an additional twenty-two (22) lots on either side of an extension of Mill Creek Lane and an offshoot, Barrett Lane. Both Mill Creek Lane and Barrett Lane terminate in circular cul-de-sacs placed by the developers to indicate the completion of the subdivision. The restrictive covenants are essentially the same for both filings, and state that the lots in Mill Creek are not to be used for more than one family residence, and prohibit commercial use or further subdivision of the lots within the subdivision.

Spruell v. Dudley, 03-2697, p. 2 (La.App. 1 Cir. 10/29/04), 897 So.2d 144, 145-6.

Mr. Dudley is the owner of Lot 36 in Mill Creek Subdivision, Second Filing (“Mill Creek”), which is situated within the cul-de-sac on Barrett Lane. Mr. Dudley subsequently purchased approximately sixty (60) acres to the north at the rear of his Mill Creek lot from Dr. William J. Carona in two separate transactions. These parcels are referred to by Mr. Dudley as Lots 36-A and 36-A-l, consisting of approximately 16.849 acres and 41.98 acres, respectively. Said Lots 36-A and 36-A-l lie outside of the Mill Creek development and are not burdened with, or subject to, the Restrictive Covenants of Mill Creek. These approximately sixty (60) acres are bounded on the west by other property belonging to Dr. Carona, whose western boundary fronts La. Hwy. 409.

Having constructed his home on Lot 36 in Mill Creek, Mr. Dudley, on June 25, 2003, filed a map showing the further subdivision of Lot 36-A into five smaller lots and the unsubdivided larger tract, 36-A-l, consisting of 41.98 acres. Mr. Dudley also began building a twenty-five foot servitude of passage or right-of-way along the eastern ^boundary of the subdivision lot that he owned as a means of providing access within Mill Creek to the property acquired by Mr. Dudley that was situated outside of Mill Creek.

On July 10, 2003, plaintiff, Jimmy Spruell (“Mr.Spruell”), sued to enjoin Mr. Dudley from establishing a right-of-way across Lot 36 within Mill Creek. Mr. Spruell claimed that as a fellow Mill Creek property owner, he would suffer irreparable injury if Mr. Dudley was not prohibited or enjoined from constructing the servitude. A hearing was held on the preliminary injunction, and on August 20, 2003, the trial court granted a preliminary injunction prohibiting Mr. Dudley from constructing or using a right-of-way through Lot 36 of Mill Creek.

Mr. Dudley appealed said judgment, and in our previous opinion in this matter, this court affirmed the holding of the trial court. This court found that in creating a right of passage upon his lot within Mill Creek, Mr. Dudley was in effect alienating or encumbering a portion of his Mill Creek property. We further found that such action was not intended as a benefit conferred upon Mr. Dudley’s lot within the subdivision, but rather for the use and benefit of new lots created by Mr. Dudley outside of the subdivision. We concluded that such action violated not only the “Restrictions on Use” provisions of the Mill Creek Restrictive Covenants, but also the covenants’ prohibition against “Re-subdivision.” Spruell, 03-2697 at p. 5, 897 So.2d at 148.

Thereafter, following a trial, the trial court granted a permanent injunction on August 16, 2005. That judgment is the subject of the instant appeal.

ASSIGNMENTS OF ERROR

On appeal, Mr. Dudley sets forth the following assignments of error and contends that the trial court erred in the following respects:

I. The trial court erred in holding that the Mill Creek restrictive covenants and subdivision plan restrict the use of a right-of-way across Dudley’s Lot 36 to access Dudley’s adjacent Lot 36-A.
II. The trial court erred in finding that Dudley’s Lot 36-A is not landlocked when unrefuted facts, evidence, and expert testimony clearly show that access to the only other public road, Highway 409, is impossible or highly impractical.
III. The trial court erred in finding that the Mill Creek restrictive covenants supersede La. Civ.Code art. 689, which guarantees a right of passage to landlocked property.

| ¿STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V., § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

As to the initial error assigned by Mr. Dudley, we note that in our previous opinion in this matter, this court concluded that a right of passage way across Mr. Dudley’s Lot 36 to access Mr. Dudley’s adjacent Lot 36-A violates the Restrictive Covenants of Mill Creek. See Spruell, 03-2697 at 5, 897 So.2d at 148. No writ was taken by Mr. Dudley from our earlier decision in this matter that has now become final. Pursuant to the “law of the case” doctrine, an appellate court generally will not, as part of a subsequent appeal, reconsider its earlier ruling in the same case. H.R. 10 Profit Sharing Plan v. Mayeux, 03-0691, p. 2 (La.App. 1 Cir. 9/17/04), 893 So.2d 887, 893 (on rehearing), writ denied, 05-0868 (La.5/13/05), 902 So.2d 1031.

In Louisiana Land and Exploration Company v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997), this court discussed the “law of the case doctrine” and its application as follows:

The law of the case principle is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. It applies to all prior rulings | fior decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Re-argument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur.
The reasons for the “law of the case” doctrine is to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue.
When an appellate court considers arguments made in supervisory writ applications or responses to such applications, the court’s disposition on the issue considered usually becomes the law of the case, foreclosing relitigation of that issue either at the trial court on remand or in the appellate court on a later appeal. However, where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered.

Louisiana Land and Exploration Company, 95-2579 at 3-4, 681 So.2d at 65 (citations omitted).

Accordingly, this court’s previous holding in this matter must be regarded as the law of the case. Through application of the law of the case doctrine, we decline to review this issue a second time on appeal.

The second and third errors assigned by Mr. Dudley are interrelated and will be addressed simultaneously, although we note that Assignment of Error No. 3 is, in our opinion, a misstatement or misinterpretation of the actual holding of the trial court.

Mr. Dudley relies upon La. Civ.Code art. 689 as the legal justification for his creation of a right of passage upon his lot within Mill Creek to access the lots he subdivided out of Lot 36-A. Louisiana Civil Code art. 689 provides:

The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.

The provisions of the aforementioned code article must however be interpreted in reference to La. Civ.Code art. 694, which provides as follows:

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.

| fiIt is undisputed that Lots 36-A and 36-A-l, which Mr. Dudley purchased from Dr. Carona, were parcels of a larger tract owned by Dr. Carona that was bounded on the west by La. Hwy. 409. The sale of these parcels to Mr. Dudley constituted a voluntary alienation by Dr. Carona that resulted in the voluntary enclosure of Lots 36-A and 36-A-l. This act entitled Mr. Dudley to a gratuitous right of passage across the remainder of Dr. Carona’s property to La. Hwy. 409, in the same manner that Dr. Carona would have gained access to this portion of his property in the past.

The code articles provide and the current jurisprudence of this circuit recognizes that in a case where an estate becomes enclosed due to a voluntary act or omission of its owner, his neighbors are not bound to furnish a passage to him or his successors. La. Civil Code art. 693. If in the case of a partition or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the alienation or partition does not mention a servitude of passage. La. Civil Code art. 694. The intention of La. Civ.Code art. 689, which provides for a right of passage over neighboring property to the nearest public road, was to allow the owner of an estate enclosed through no fault of his own to obtain a servitude of passage across the property of his neighbor. Spruell, 03-2697 at 7, 897 So.2d at 149 (citing Sceroler v. Rancher, 99-2859, p. 7 (La.App. 1 Cir. 2/15/02), 808 So.2d 803, 808).

In connection with his testimony, Mr. Dudley conceded he was fully aware at the time he acquired Lot 36 of the Restrictive Covenants affecting lots within Mill Creek. Mr. Dudley further acknowledged that he was fully aware of said covenants when he purchased the adjoining sixty (60) acres from Dr. Carona. In Sceroler, 99-2859 at 9, 808 So.2d at 809, this court recognized an exception to the application of La. Civ. Code art. 694 as set forth in Stuckey v. Collins, 464 So.2d 346 (La.App. 2 Cir. 1985). The exception provides that where passage across the vendor estate (i.e., the remaining property of Dr. Carona) is impossible or highly impracticable, then an enclosed owner may |7seek an art. 689 servitude across the land of his neighbor even though the owner is legally entitled to an art. 694 servitude across his vendor’s property. Id. at 348.

The question then for the trial court in this case was whether the servitude of passage across Dr. Carona’s property would be so impossible or highly impracticable that Mr. Dudley would still be entitled to a right of passage across his Lot 36 within Mill Creek to Barrett Drive. This is a fact-intensive question, and depends upon the credibility of the witnesses and the findings of fact of the trial court. Accordingly, we attach hereto and make a part hereof the trial court’s Written Reasons for Judgment signed on July 26, 2005. These reasons fully support the trial court’s finding that Mr. Dudley was not entitled to a servitude of passage on this basis.

After a thorough review of the record, the exhibits introduced at trial, and the trial court’s Written Reasons for Judgment, it is obvious that the trial court considered the relevant legal issues and jurisprudence of this state. We cannot say that the trial court’s findings of fact were manifestly erroneous.

For the foregoing reasons, the judgment of the trial court is hereby affirmed. All costs of this appeal shall be borne by defendant-appellant, Mr. Thomas Dudley.

AFFIRMED.

_L§.

ATTACHMENT

JIMMY SPRUELL VERSUS TOMMY DUDLEY

NUMBER 35,322 DIV: A

20TH JUDICIAL DISTRICT COURT

PARISH OF EAST FELICIANA

STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

In accordance with oral reasons for judgment May 19, 2005, written reasons for judgment August 7, 2003, and judgment of the First Circuit Court of Appeal rendered October 29, 2004, the Court finds that Lot 36, Mill Creek Subdivision, may not be used for a utility or ingress and egress right of way to properties outside of Mill Creek Subdivision.

Despite the Court’s ruling that Lot 36 is restricted and cannot be used for utilities or ingress or egress right of way, Defendant maintains that he is still entitled to use a portion of Lot 36 for right of way purposes in accordance with La. Civil Code Art. 689. The Court disagrees.

Art. 689 provides as follows:

“The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.”

In order for Art. 689 to be applicable, the estate must be landlocked and have no access to a public road. In this case, the defendant is not landlocked. He has a right of passage to Louisiana Highway 409 over the land belonging to his vendor, Dr. Corona. La. Civil Code Art. 694, states:

“When in the case of partition, or a voluntary alienation of an estate or part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude or passage.”

When the property purchased by Dudley was owned by his vendor, Dr. Corona, access to Louisiana Highway 409 was accomplished by traveling across the Corona property to Highway 409. Corona partitioned his property and sold the rearmost portion to Dudley. Art. 694 entitles Dudley to access Louisiana Highway 409 through the property of his vendor. This was the route previously used before the sale and Corona owes Dudley a right of passage. Because Art. 694 applies, Art. 689 does not. The First Circuit Court of Appeal, in their previous judgment in this case, stated:

“Similar to the facts presented in Scero-ler, although Mr. Dudley would clearly prefer that access to Lot 36-A be across his lot in Mill Creek, this court held in Sceroler that La. Civ.Code. Article 689 only applies if the owner of the enclosed estate “has no access to a public road.” If the owner of the enclosed estate is entitled to a gratuitous servitude of passage over “the land on which passage was previously exercised, even if it is not the shortest route to the public road,” under La. Civ.Code article 694, then | (¡technically La. Civ.Code article 689 does not apply. The “access to a public road” is available over the land on which the passage was previously exercised. Thus, where a gratuitous passage is available under Article 694, an enclosed landowner is not entitled to an Article 689 servitude across a neighbor’s land.” See Sceroler v. Rancher, 99-2859, 808 So.2d 803 (La.App. 1 Cir. 2/15/02), writ denied, 2002-0811 816 So.2d 849 (La.5/24/02).

The only possible exception to the above rule of law cited by the defendant is expressed in Stuckey v. Collins, 464 So.2d 346 (La.App. 2 Cir. 1/23/85), in which the Court held:

“We hold now, however, that where passage across the vendor’s land is impossible or highly impractical, an enclosed owner, even though legally entitled to an Article 694 servitude across his vendor’s property, may seek an Art. 689 servitude across a neighbor’s land.”

The defendant asserts that he would be landlocked if not allowed to seek a right of passage under Art. 689 because the current passage is not available during certain times of the year due to flooding. Defendant claims that a “Stuckey exception” is warranted because of the extreme cost of making this previously used route available year round. Admittedly, the expert testimony regarding the improvements required for a right of passage (at the expert’s proposed location) and the cost to make such improvements is extremely high. However, this Court believes the expert’s cost to be overstated for many reasons. First, the expert testified that the cost, specifically the cost of building a bridge, was based on specifications necessary to meet parish standards. The Court believes these specifications to be inapplicable to the construction of a private drive, which is all Dudley claims he wants. Also, the route chosen by the expert for his cost estimate was the longest possible route from Louisiana Highway 409 to the defendant’s property. When questioned by the Court about the considerable distance of this route, the expert, Mr. McCullough, agreed that it is the longest possibility. The defendant’s expert completely ignored a much shorter route which would cross at a location where approximately two-thirds of the length of the right of way proposed is already improved, in use and would need no work or improvements by the defendant to reach his property. This, or course, lessens considerably the impact of Defendant’s assertion that the cost of improving other routes compared to the cost of improving the route through Mill Creek Subdivision is reason enough to apply the so-called “Stuckey exception.”

The law requires a weighing of the interests involved — the inconvenience or damage to the neighboring land owner from whom a right of passage is sought versus the impracticality, impossibility, or economic unfeasibility of using the existing right of passage. The Court does not believe the facts of this case warrant the application of the “Stuckey exception.”

The defendant relies on the fact that, in Stuckey, the Court pointed out the construction of a |inroute through the vendor’s property would “cost a fortune” or be “economically unfeasible.” He asserts that the cost of improving a route through Dr. Corona’s property would, likewise, be economically unfeasible. However, there are many differences between the facts in Stuckey and the facts of this case. In Stuckey, a route through the vendor’s property would have to be constructed. Here, a route already exists for approximately two-thirds of the distance involved. As the First Circuit pointed out Sceroler v. Rancher, cited above, “We cannot say that the plaintiffs property was without access to Henderson Road when that was the only way of accessing the property from the public road before the land was subdivided and donated to the plaintiffs.” In Stuckey, passage through the vendor’s property had not been previously exercised, as it has here. In Stuckey, a route through the vendor’s property was difficult because of the swampy condition of the property. Here, the only problem with the vendor’s property is an occasional temporary creek rise.

In Stuckey, the Plaintiff was a single individual seeking access for the exclusive use of one small piece of property, otherwise landlocked. Contrasted with the Stuckey facts, the defendant herein, Dudley, seeks to develop property outside the subdivision for financial gain. Trial of this matter revealed testimony by several witnesses which led the Court to the inescapable conclusion that Defendant is a developer rather than a lone individual seeking access through his property for property donated to his daughter.

Jimmy Spruell testified:

“Mr. Dudley told me that he had lots that he was going to develop behind that right there ... All I can do is tell you what Mr. Dudley told me in a conversation that he had submitted — the lots: there was going to be eight five-acre lots that would be more restrictive than our present subdivision. He said that each house would have to have thirty-two hundred square feet. It couldn’t have an outbuilding, and he told me about mine and all my neighbors and everybody else — everybody out there has one.”

When recalled as a rebuttal witness, Mr. Spruell reiterated the same testimony recited above. He clearly stated that:

“He told me that he was going to have eight five-acre lots and he said it would only be eight more families coming in front of your house.”

Maurice Whitcomb testified as follows:

“At one time Mr. Dudley invited me, or asked me, to please show him some of the subdivisions in East Feliciana Parish. That was back when I was on the Gas District Number Two, on the board. And we rode through two subdivisions and discussed what the gas board normally would do when putting in gas lines in a subdivision. I think the comment— I’m trying to remember exactly what Mr. Dudley said — is, “Whit, I don’t have a retirement like you have. This is my retirement.” He never stated, directly, “I’m going to build a big subdivision.” Or little subdivision, h,whatever. I assumed, at that time, when he told me that, that he was planning to develop— he had, at that time, the 42 acres — and I assumed that that’s what he planned to do.”

Warren Soulier testified:

“He brought me down there and showed me his property and said “I’m going to raise goats around here ... A month or two later, he did the same thing to my son, but he told my son a different story. He told him that this was going to be his retirement — he was going to build a subdivision.”

The defendant’s experts did testify regarding the high cost of improving the longest possible route. However, as stated above, there are shorter routes available which would cost considerably less to construct and/or improve. It is also important to note that Dudley was aware of the location of the previously used right of passage and should have taken into account the cost of any right of way improvements he might want to accomplish before purchase of the land. Perhaps Defendant’s situation was best summarized by the testimony of Warren Soulier, who is not a resident of or land owner within Mill Creek Subdivision, who said:

“I don’t care if he builds a subdivision, that’s fíne, you know. But I think anybody that buys a piece of property that’s landbound, ought to get a right of way from the people he buys it from. He ought to not get that and then turn around and try to get a right of way. He ought to get a right of way first, then buy the property. That’s what I would do, you know, if it was my money.”

Mr. Soulier continued:

“I ain’t going to spend more money than my little red wagon’s worth. I ain’t going to buy no doggone property I can’t get to and then turn around and try to get a right of way to it.”

There are other significant differences between the facts of this case and that of Stuckey. In Stuckey, the Court found that:

“Inconvenience and damage to defendant is minimal. Construction of a road across the property formerly owned by plaintiffs vendor would be impossible or highly impractical and economically unfeasible. Under these circumstances, the trial court correctly granted plaintiff a servitude across the defendant’s land under Art. 689.”

In Stuckey the Court found little damage to the neighboring land owner. If Dudley’s right of way is allowed, great damage would result to the residents of Mill Creek Subdivision. As previously noted, allowing this right of passage would violate the restrictive covenants of Mill Creek Subdivision. These covenants were in place at the time Dudley purchased Lot 86 and he testified that he was aware of the existence of these covenants. The Louisiana Supreme Court, in Rockholt v. Keaty, 256 La. 629, 287 So.2d 663 (La. 1970), stated:

11 ¡/‘Plaintiffs contend that these latter properties are subject to building restrictions which would negate the possibility of obtaining passage across them, and that therefore the route here sought is the “legally” shortest and most feasible. We are not impressed with this contention. These restrictions alone would not be controlling of a landowner’s right to obtain passage from enclosed land across neighboring property.”

While restrictive covenants alone are not controlling of a landowner’s right to obtain a right of passage under Art. 689, restrictive covenants can be considered when balancing the interests between the parties.

Mill Creek Subdivision is served by a 1½ to 2 lane gravel road for the residents of approximately forty-one lots situated in Mill Creek Subdivision, first and second filing. Gravel roads present many obstacles to the users thereof, such as dust, washouts, higher maintenance, and increased wear and tear to vehicles. If Mill Creek Subdivision is opened to additional use through the development of Defendant’s property, the inconvenience to the residents thereof would be greatly exacerbated with respect to all of the problems referred to above.

Additionally, any deviation from the restrictive covenants may be grounds for a claim that the covenants have been abandoned, rendering the covenants unenforceable, La. Civil Code Art. 782. If this servitude is granted, then Mill Creek Subdivision owners would clearly be open to similar suits which would result in Mill Creek Subdivision and its gravel road access being burdened with even more traffic from other land owners accessing properties developed outside the subdivision.

The weight of the harm to Mill Creek Subdivision residents clearly outweighs the defendant/developer’s burden of making improvements for a right of passage at several available locations other than the subdivision passage. Therefore, the preliminary injunction prohibiting the defendant from constructing and/or using a right of way for utilities and ingress and egress across Lot 36, Mill Creek Subdivision, to properties outside the subdivision, is hereby made permanent.

Signed this 26th day of July, 2005.

/s/ George H. Ware, Jr. Judge George H. Ware, Jr.

PLEASE SERVE ALL COUNSEL OF RECORD


source: Caselaw Access Project

author: WHIPPLE, J. McDONALD, J.,

license: Public Domain

text:
    Angela ATWELL v. FIRST GENERAL SERVICES.
    No. 2006 CA 0392.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Daniel Dazet, Baton Rouge, Counsel for PlaintiffiAppellee, Angela Atwell.
    Stephen Brooks, Jr., Covington, Counsel for Defendant/Appellant, First General Services.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| ¡¡This is an appeal by defendant from a judgment of the Office of Workers’ Compensation awarding claimant benefits and assessing defendant with penalties and attorney’s fees. For the following reasons, we amend and affirm, as amended.

FACTS AND PROCEDURAL HISTORY

Claimant, Angela Atwell, was employed as a “restoration specialist” by defendant, First General Services, and was injured on November 4, 2002, when she slipped on concrete steps and fell. As a result of the injury, claimant underwent a cervical fusion. However, after the surgery, claimant continued to experience pain in her neck, shoulder and back, which became chronic. Benefits were initially paid to claimant, but were subsequently terminated by her employer.

Claimant filed a disputed claim for compensation on January 8, 2004, seeking reinstatement of her weekly compensation benefits, adjustment of her weekly compensation rate, various medical benefits, the right to be treated by a physician of choice, and penalties and attorney’s fees.

In its answer, defendant denied that claimant was entitled to any additional benefits. Additionally, in an amended answer, defendant asserted that claimant had willfully made false statements or misrepresentations about an alleged prior history of psychological problems and drug use and about her physical limitations and abilities. Thus, defendant contended claimant had forfeited her entitlement to any benefits pursuant to LSA-R.S. 23:1208.

|sFollowing trial in this matter, the workers’ compensation judge rendered judgment, finding that claimant was temporarily totally disabled beginning October 13, 2003, and continuing through the date of trial; that claimant did not commit any violation of LSA-R.S. 23:1208; that claimant was entitled to reimbursement of out-of-pocket medical expenses for treatment by Dr. Sandra Weitz and to in-patient pain management treatment at Touro Infirmary Pain Center; that claimant was entitled to continue treatment with Dr. Weitz and Dr. Craig Waggoner; and that claimant was entitled to undergo cervical and brain MRIs. The workers’ compensation judge also set claimant’s weekly indemnity rate at $346.66.

With regard to penalties and attorney’s fees, the workers’ compensation judge determined that defendant was arbitrary and capricious for refusing to authorize and pay for medical treatment. Defendant was penalized $2,000.00 and ordered to pay $5,000.00 in attorney’s fees for its refusal to provide such treatment. The workers’ compensation judge further determined that defendant was arbitrary and capricious for its termination of benefits in December 2003 and for its failure to reinstate benefits after April 24, 2004. Defendant was ordered to pay attorney’s fees of $1,000.00 for its termination of benefits in December 2003, and was also penalized $2,000.00 and ordered to pay $5,000.00 in attorney’s fees for its failure to reinstate benefits in April 2004, as previously ordered by the OWC.

14From this judgment, defendant appeals, contending that the workers’ compensation judge erred in finding claimant temporarily totally disabled; finding no violation of LSA-R.S. 23:1208; awarding claimant reimbursement for medical expenses for treatment by Dr. Weitz and authorizing cervical and brain MRIs and continued treatment by Drs. Weitz and Waggoner; failing to suspend benefits until the date that Atwell actually submitted to a medical examination by Dr. Appleb-aum; and assessing penalties totaling $4,000.00 and attorney’s fees totaling $11,000.00 against defendant. Claimant answered the appeal, seeking an amendment of the amount of penalties imposed and an increase in attorney’s fees for defending the appeal.

TEMPORARY TOTAL DISABILITY BENEFITS

(Assignment of Error No. 1)

Benefits for a temporary total disability (TTD) shall be awarded only if a claimant proves by clear and convincing evidence that she is physically unable to engage in any employment. LSA-R.S. 23:1221(l)(e); Collins v. Family Dollar Stores, Inc., 99-0622 (La.App. 1st Cir.5/12/00), 760 So.2d 1210, 1214, writs denied, 2000-2356, 2000-2363 (La.11/13/00), 773 So.2d 727. Disability can be proven by medical and lay testimony. Isaac v. Lathan, 2001-2639 (La.App. 1st Cir.11/8/02), 836 So.2d 191, 199. A claimant who is unable to return to work as a result of a mental injury is entitled to TTD benefits. Williams v. Capitol Steel, 93-2154 (La.App. 1st Cir.10/7/94), 644 So.2d 705, 707. Additionally, a claimant who suffered from a pre-existing medical condition is also entitled to benefits if the accident aggravated, accelerated or combined with the pre-existing condition to produce disability. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689, 691.

|5The factual finding regarding whether a workers’ compensation claimant has met her burden of proving disability and the length thereof must be given great weight and will not be overturned on appeal absent manifest error. Porter v. Gaylord Chemical Corporation, 98-0222 (La.App. 1st Cir.9/25/98), 721 So.2d 27, 30, writ denied, 98-2712 (La.12/18/98), 734 So.2d 638. If there is evidence before the workers’ compensation judge that furnishes a reasonable factual basis for such a finding, the determination of facts will not be disturbed on appeal. Moreover, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review. Porter, 721 So.2d at 30.

In the instant case, the workers’ compensation judge found as a fact that claimant was suffering from “very definitive severe depression specifically related to this physical injury that temporally totally disables her from employment.” The workers’ compensation judge explained that she found claimant to be disabled because of claimant’s need for inpatient pain management, which defendant had refused to authorize. Additionally, the workers’ compensation judge found as a fact that had defendant authorized the inpatient pain management treatment recommended by claimant’s doctor, claimant would have been “much farther along in terms of her recovery and return to work.”

Based on our review of the record, we find no manifest error in the workers’ compensation judge’s findings as to claimant’s disability. Contrary to the assertions in defendant’s brief, we find that the workers’ compensation judge’s findings are amply supported by the record and the medical evidence. Claimant was clearly suffering from severe depression related to her chronic pain from the work accident. While she may have | ^suffered from depression in the past, claimant was working full time at the time of this accident with no demonstrated limitations. Thus, even if it could be argued that she had a pre-existing condition relating to depression, it is clear from the record that the accident at issue precipitated her current severe depression. Thus, the workers’ compensation judge’s conclusion that she was rendered temporarily, totally disabled given her current condition will not be disturbed by this court.

REJECTION OF DEFENDANT’S LSA-R.S. 23:1208 CLAIM

(Assignment of Error No. 2)

Defendant next contends that the workers’ compensation judge erred in finding that claimant had not committed any violation of LSA-R.S. 23:1208. Pursuant to LSA-R.S. 23:1208, a claimant’s benefits will be forfeited where: (1) the claimant makes a false statement or representation; (2) the false statement or representation was willfully made; and (3) it was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95), 660 So.2d 7, 12. Because LSA-R.S. 23:1208 is quasi-penal, it must be strictly construed. Revere v. Dolgencorp, Inc., 2004-1758 (La.App. 1st Cir.9/23/05), 923 So.2d 101, 107. Moreover, the issue of whether an employee forfeited her workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error. Scott v. Wal-Mart Stores, Inc., 2003-0858 (La.App. 1st Cir.2/23/04), 873 So.2d 664, 672.

|7In the instant case, the workers’ compensation judge was unimpressed with the evidence offered by defendant in support of its contention that claimant had willfully made misrepresentations for the purpose of obtaining benefits, labeling such evidence as “miniscule” and a “pitiful excuse for 1208 evidence.” Specifically, regarding defendant’s contention that claimant had lied about a past history of psychological problems, the workers’ compensation judge noted that claimant had undergone only one psychological screening in the past for an episode of depression shortly after having experienced an ectopic pregnancy. As noted by the workers’ compensation judge, while claimant did discuss a history of depression in that screening, claimant testified that after going through the screening with the psychologist, she felt better able to handle her situation. As further noted by the workers’ compensation judge, there was nothing in the medical records of claimant to suggest claimant had ever been treated for any other episodes of depression. Thus, the workers’ compensation judge concluded that claimant’s failure to mention that single episode of depression and psychological screening following the ectopic pregnancy was not an attempt to conceal a history of psychological problems or mislead defendant for the purpose of obtaining benefits and, thus, did not constitute a violation of LSA-R.S. 23:1208.

The workers’ compensation judge also found as a fact that claimant’s failure to mention her “prior history of drug use,” which had occurred years in the past, was not done for the purpose of obtaining workers’ compensation benefits. Rather, the workers’ compensation judge made a credibility determination in believing claimant’s testimony that she did not | ^disclose prior drug use because she was ashamed of having done that in the past. This reasonable credibility evaluation will not be disturbed on appeal. Porter, 721 So.2d at 30.

Finally, regarding the surveillance video of claimant, the workers’ compensation judge characterized it as “an absolute travesty of the use of investigation,” noting that after conducting surveillance of claimant on twenty-one separate days, defendant had approximately one hour of video of claimant leaving her home on only three occasions. Additionally, the workers’ compensation judge found that the video of claimant in a store was consistent with claimant’s testimony that she had good days and bad days and that if she shopped she took someone with her to carry heavy items. The workers’ compensation judge found that the video did not show claimant “doing anything outside of any restrictions that have been set” for her. Considering all of this evidence, the workers’ compensation judge concluded that there were “absolutely no grounds” for a finding of a LSA-R.S. 23:1208 violation.

Based on our review of the record, we find that the workers’ compensation judge’s findings are amply supported by the record. Clearly, the workers’ compensation judge rejected defendant’s characterization of the evidence and its view of what the evidence established. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Dept. of Transp. & Development, 617 So.2d 880, 883 (La.1993). Thus, we cannot conclude | athat the workers’ compensation judge committed manifest error in finding no violation of LSA-R.S. 23:1208.

MEDICAL BENEFITS

(Assignment of Error No. 3)

Defendant next contends that the workers’ compensation judge erred: in ordering reimbursement for medical expenses for treatment with Dr. Sandra Weitz, a pain management specialist; in ordering continued treatment with Dr. Weitz and Dr. Craig Waggoner; and in ordering that claimant was entitled to undergo MRIs. Defendant argues that these awards were in error because claimant did not specifically seek these medical benefits in her disputed claim for compensation.

Pursuant to Section 6201 of the OWC Hearing Rules, only those issues listed in the pretrial statements shall be litigated at trial, and no new issues shall be raised except by written order of the workers’ compensation judge for good cause or upon mutual agreement of the parties. LAC 40:1.6201. In the instant case, claimant specifically listed, in her pretrial statement, as issues to be litigated entitlement to “medical treatment and test [sic],” payment of medical bills, physician of choice, and wrongful denial of medical benefits. These issues clearly were broad enough to encompass all of the above awards and to place defendant on sufficient notice that these interrelated medical issues could be contemplated at trial. See Pujoe v. Stowe-Woodard, 40,044 (La.App. 2nd Cir.8/17/05), 911 So.2d 304, 311, writ denied, 2005-2365 (La.4/17/06), 926 So.2d 510.

Moreover, when claimant testified regarding her choice of physicians, medical referrals, treatment and tests that had not been authorized (and that were subsequently awarded by the workers’ compensation judge), defendant did not object to that testimony to assert that the testimony was beyond the |inscope of claimant’s pretrial statement or that these issues were not properly before the workers’ compensation judge for resolution. Accordingly, considering the above, we find no merit to defendant’s contention that the issue of claimant’s entitlement to these medical benefits was not before the workers’ compensation judge.

We likewise find no merit to defendant’s argument that this treatment was not warranted or that claimant’s choice of physicians was unreasonable. Accordingly, we find no basis to reverse these awards.

PRIOR SUSPENSION OF BENEFITS

(Assignment of Error No. 4)

Defendant also contends that the workers’ compensation judge erred in her ruling in a prior judgment that suspended claimant’s benefits for her failure to present herself for a second medical opinion by defendant’s choice of physician. In that prior judgment, the OWC suspended claimant’s benefits from January 27, 2004, the date of a scheduled second medical opinion with defendant’s choice of physician that claimant missed, until April 21, 2004, the date on which claimant agreed to attend a rescheduled Inmedical examination. Defendant argues that the workers’ compensation judge erred in refusing to suspend claimant’s benefits until June 11, 2004, the date that claimant was actually evaluated by defendant’s choice of physician for a second medical opinion.

Claimant, on the other hand, contends that this issue is not properly before this court because defendant did not appeal the prior judgment suspending her benefits. However, assuming that the prior judgment was interlocutory and thus not immediately appealable at the time it was rendered and that the issue is properly before this court now that a final judgment on the issues of entitlement to compensation has been rendered, we nonetheless find no merit to defendant’s challenge of the merits of that earlier ruling.

Pursuant to LSA-R.S. 23:1124, if an employee refuses to submit to a medical examination at the behest of the employer, the employee’s right to compensation and to prosecute any further proceedings shall be suspended until the examination takes place. However, before the drastic remedy of suspension of a claimant’s compensation should apply, a prior judicial determination must be made that the requested medical examination is reasonable as to time, place and circumstances. See Collins v. General Motors Corporation, 605 So.2d 219, 222 (La.App. 2nd Cir.1992).

liaThe transcript of the April 23, 2004 hearing on defendant’s motion to suspend claimant’s benefits demonstrates that claimant had agreed to submit to the requested medical examination. However, because defendant’s choice of physician could not see claimant until June 11, 2004, almost two months after that hearing, the workers’ compensation judge refused to suspend benefits until that date, noting that (1) it was not fair to claimant to suspend her benefits for that length of time just because defendant’s choice of physician could not get her on his calendar until then, and (2) there were many other doctors of that specialty who could probably evaluate claimant much sooner. Just as there must be a determination that the initially requested medical examination is reasonable as to time, place and circumstances, see Collins, 605 So.2d at 222, we believe that the subsequently scheduled appointment must also be reasonable as to timeliness and the circumstances under which it is scheduled. We find no error in the workers’ compensation judge’s obvious finding that the timeliness of the rescheduled medical examination was not reasonable and, thus, that suspension of benefits for that entire period was not warranted.

While LSA-R.S. 23:1124 is clearly intended to primarily protect the employer, see generally Kirby v. Terminal Paper Bag Co., Inc., 16 So.2d 597, 599 (La.App. 2nd Cir.1943), we note that, as an additional protection to defendant herein, the judgment suspending claimant’s benefits until April 21, 2004 provided that if claimant failed to appear at the June 11, 2004 medical examination, plaintiffs compensation benefits would be suspended, retroactive to April 21, 2004, without additional action by the OWC. Thus, the judgment complained of adequately protected defendant’s interests in the event claimant failed to attend the June 11, 2004 examination. For these h ¿reasons, we find no merit to the assertion that the judgment suspending benefits should be modified as suggested by defendant.

PENALTIES AND ATTORNEY’S FEES

(Assignment of Error No. 5; Answer to Appeal)

In its final assignment of error, defendant contends that the workers’ compensation judge erred in assessing it with penalties totaling $4,000.00 and attorney’s fees totaling $11,000.00 for its arbitrary and capricious termination of benefits, its refusal to provide medical treatment, and its refusal to reinstate benefits on April 21, 2004, as previously ordered by the OWC.

At the time of claimant’s injury, two statutory provisions provided the authority for assessing attorney’s fees and/or penalties. Louisiana Revised Statute 23:1201(F) covered situations in which the employer failed to commence, or re-commence, payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely. Under this statutory provision, both penalties and attorney’s fees were recoverable unless the claims were reasonably controverted. Additionally, pursuant to LSA-R.S. 23:1201.2, the employer could be liable for the payment of attorney’s fees, but not penalties, if the employer arbitrarily and capriciously discontinued payment of benefits due. Roussell v. St. Tammany Parish School Board, 2004-2622 (La.App. 1st Cir.8/23/06), 943 So.2d 449, 461. A determination of whether an employer has been arbitrary or capricious or has failed to reasonably controvert a claim is a question of fact and is subject to the manifest error standard of review. Luper v. Wal-Mart Stores, 2002-0806 (La.App. 1st Cir.3/28/03), 844 So.2d 329, 334.

In the instant case, the workers’ compensation judge imposed penalties and/or attorney’s fees under both provisions. To the extent that 114defendant argues that its failure to provide, medical treatment or to recommence indemnity benefits was reasonable based on its alleged establishment of a LSA-R.S. 23:1208 violation, we find no merit to this argument. As discussed above, the workers’ compensation judge found as a fact that defendant’s attempt to establish such a violation was weak and clearly did not constitute a reasonable basis to deny benefits or refuse to reinstate benefits that had been suspended. This finding is amply supported by the record and will not be disturbed on review. Thus, penalties for those violations were proper under LSA-R.S. 23:1201(F). See Roussell, 943 So.2d at 461.

Additionally, we find no manifest error in the workers’ compensation judge’s determination that defendant was arbitrary and capricious in discontinuing benefits in December 2003 because of a missed medical appointment by claimant. An employer is not permitted to unilaterally suspend its workers’ compensation benefits because of an employee’s failure to appear for a medical exam. Rather, a contradictory hearing must be conducted before benefits can be suspended. See Foreman v. Texaco, Inc., 93-900 (La.App. 3rd Cir.3/2/94), 634 So.2d 1370, 1371.

We specifically reject defendant’s contention that the workers’ compensation judge manifestly erred in concluding that defendant had unilaterally discontinued benefits in December 2003, rather than the date alleged by defendant, February 2004. We also reject defendant’s argument that it did not discontinue benefits until after it showed the surveillance video to Dr. Mitchell in February 2004 and obtained his opinion as to whether claimant’s complaints were consistent with her activities on the lifjVideo. Finding no manifest error in the workers’ compensation judge’s conclusion that defendant was arbitrary and capricious in unilaterally discontinuing in December 2003, we likewise conclude that the imposition of attorney’s fees was proper pursuant to LSA-R.S. 23:1201.2.

The penalties imposed were within statutory limits, and we conclude that the attorney’s fees awarded were not an abuse of the workers’ compensation judge’s discretion under the facts and record in this case. According, these awards will not be disturbed on review. See Roussell, 943 So.2d at 461.

With regard to claimant’s answer to appeal, while we decline to increase the penalties assessed as requested by claimant, claimant has demonstrated her entitlement to an award of additional attorney’s fees for work performed on appeal. Additional attorney’s fees are usually awarded on appeal when a party appeals, but obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided that the opposing party appropriately requests an increase. Roussell, 943 So.2d at 464. Accordingly, we conclude that an additional award of $1,500.00 is appropriate, and the judgment will be amended accordingly. See Roussell, 943 So.2d at 464, and Luper, 844 So.2d at 338.

CONCLUSION

For the above and foregoing reasons, the August 2, 2005 judgment of the workers’ compensation judge is amended to order defendant, First General Services, to pay claimant, Angela Atwell, an additional $1,500.00 in | ^attorney’s fees for the appeal. In all other respects, the judgment is affirmed. Costs of this appeal are assessed against defendant, First General Services.

AMENDED IN PART AND AFFIRMED AS AMENDED.

McDONALD, J., agrees in part and dissents in part with reasons.

McDONALD, J.,

Agreeing in part and dissenting in part.

11While I agree with the majority in affirming 'the decision of the Workers’ Compensation Judge, I respectfully dissent with affirming the $2,000 penalty and $5,000 attorney fees for failure to reinstate indemnity benefits on the date Ms. Atwell agreed to submit to the SMO with Dr. Applebaum. Additionally, I would not award attorney fees for the appeal.

      . Atwell’s duties involved commercial and residential painting, drywall hanging, finishing and texturing work, light plumbing and electrical work, and floor repairs and restoration. At the time of the accident, she had worked for defendant for almost two years.

      . Claimant's compensation benefits had been temporarily suspended from January 27, 2004 through April 21, 2004, for her failure to attend a medical examination with Dr. Robert Applebaum, defendant’s choice of neurosurgeon. The workers’ compensation judge determined that defendant had improperly terminated benefits in December 2003, prior to the date of the suspension ordered by the OWC, and thereafter failed to reinstate claimant’s benefits at the expiration of the suspension period as ordered, thus forming the bases for imposition of penalties and attorney's fees. While the actual date that benefits had been ordered reinstated was April 21, 2004, the workers' compensation judge in her subsequent judgment awarding penalties and attorney’s fees incorrectly listed the date of reinstatement as April 24, 2004.

      . Regarding defendant's assertion that claimant had never claimed to be temporarily totally disabled on a mental level, we note that the bulk of the medical evidence introduced, either by defendant or without defendant’s objection, demonstrated that claimant’s ongoing pain was contributing to severe depression for which she needed pain management therapy. Additionally, as acknowledged by defendant in brief, claimant specifically requested treatment by her choice of neuropsychologist in her disputed claim for compensation. Also, in her pre-trial statement, claimant listed as an issue the "[ejxtent of injuries and/or disability (including but not limited to Neck, Back and Left Shoulder).” Thus, we find no merit to the argument that the workers’ compensation judge erred in finding claimant disabled on the basis that claimant had not specifically claimed to be mentally disabled.

      . As noted by the workers’ compensation judge, claimant consistently revealed the ectopic pregnancy in all of her medical questionnaires.

      . Moreover, the workers' compensation judge noted that while Dr. Horace Mitchell, one of claimant's treating physicians, felt, upon observing the videotape, that claimant's activities on the tape were contradictory to her stated symptoms, Dr. Burdine also viewed the videotape and specifically noted that patients can have good days and bad days and that, on good days, they can do fairly well.

      . Additionally, at the beginning of trial, the workers' compensation judge specifically listed, without objection by defendant, claimant’s entitlement to reimbursement for medical expenses from treatment with Dr. Weitz and entitlement to a cervical MRI as issues to be determined.

      . Defendant argues in brief that because Dr. J. Michael Burdine, a pain management specialist, terminated his treatment of claimant, claimant's request to change her treatment to Dr. Sandra Weitz, a psychologist, was unreasonable. Dr. Burdine did discontinue his treatment of claimant because of the circumstances surrounding her request for a replacement prescription for pain medication, which technically violated an agreement claimant had signed with his office. While defendant asserts that claimant’s request to change to Dr. Weitz was unreasonable given that Dr. Burdine quit treating her for a violation of his treatment agreement, we note that Dr. Bur-dine candidly stated in his February 9, 2004 office note that, with regard to the misplaced prescription, he felt claimant had violated the treatment agreement “through no fault of her own.’’ Nonetheless, because there had been a breach of the agreement, he deferred her treatment to Dr. Weitz, whom claimant had seen previously at the request of defendant. Thus, we find no manifest error in the workers’ compensation judge's implicit finding that claimant's request for this change of physicians was reasonable.

      . In Smith v. UNR Home Products, 614 So.2d 54, 54-55 (La.1993), the Louisiana Supreme Court held that LSA-R.S. 23:1310.5, the workers’ compensation statute governing appeals of compensation judgments, contemplated an appeal from a final decision upon completion of the required evidentiary hearing and that piecemeal appeals go counter to the workers’ compensation procedures, which are designed to allow the workers' compensation judge to "decide the merits of the controversy as equitably, summarily and simply as maybe.” LSA-R.S. 23:1317(A). In the present case, the prior judgment of the OWC merely acted upon a motion to compel compliance with a medical examination and to suspend claimant’s benefits for her failure to attend the examination. It did not decide the essential issues of the case, i.e., whether claimant was entitled to benefits and in what amount. See LSA-C.C.P. art.1915; Beaumont v. Exxon Corporation, 98-1239 (La.App. 5th Cir.4/27/99), 734 So.2d 155, 156.

      . We note that while Dr. Mitchell stated that he believed claimant had reached maximum medical improvement as of the time he viewed the video, he nonetheless clearly stated that she still needed pain management treatment at that time, which defendant also refused to provide.


author: McDonald, j.

text:
    Marcus L. SMITH v. THURMAN OILS, INC.
    No. 2006 CA 0743.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Elizabeth Smyth Sirgo, Bradley J. Lu-minais, Jr., Metairie, Counsel for Plain-tiffAppellant Marcus L. Smith.
    Leland R. Gallaspy, Covington, John N. Gallaspy, Bogalusa, Counsel for Defendant/Appellee Thurman Oils, Inc.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   McDonald, j.

Un May of 1998, Marcus L. Smith was hired by Thurman Oils, Inc., as a full-time commercial truck driver and miscellaneous laborer. His job required him to drive commercial trucks delivering fuel to customers within a 25-mile radius. In 1999, Mr. Smith was diagnosed with myotonic muscular dystrophy, which is a degenerative condition that can affect the arm and neck muscles. Mr. Smith informed his boss, Joe Hernandez, of the diagnosis. Mr. Hernandez researched the condition and learned that it could affect the ability to grip and release objects. Mr. Hernandez contacted his company’s insurance agent, Richard Garrity, and explained the situation. Mr. Garrity informed Mr. Hernandez that Mr. Smith would not be insurable as a truck driver for Thurman Oils under the circumstances. Mr. Hernandez then terminated Mr. Smith’s employment in January of 2000.

Mr. Smith filed suit against Thurman Oils, alleging that the company wrongfully terminated him from his job in violation of the Louisiana Employment Discrimination Law (LEDL), La. R.S. 23:301, et. seq., and that at the time of his firing he was capable of performing all the essential functions of his employment with or without reasonable accommodation. Alternatively, Mr. Smith asserted that Thurman Oils failed to provide him with reasonable accommodation to perform his employment. Mr. Smith asked for compensatory damages, back pay, benefits, reinstatement or appropriate front pay, and reasonable attorney fees and costs.

Thurman Oils answered the petition, denying the allegations. Thereafter, Thurman Oils filed a motion for summary judgment, asserting that the LEDL required that Mr. Smith prove the termination was unrelated to his ability to perform the duties of the job, and to prove that he was disabled, having an impairment that substantially limited one or more life ^activities. Thurman Oils asserted that Mr. Smith was unable to prove at trial that the termination was not due to his inability to perform the duties of his job, and that he was unable to prove at trial that he was a “disabled person” as defined by the LEDL.

After a hearing, the trial court granted the motion for summary judgment and dismissed the suit with prejudice. Mr. Smith is appealing that judgment, and makes the following assignments of error:

1. The trial court erred in holding Smith had not demonstrated that he had a “disability” within the meaning of the ADA [Americans With Disabilities Act] and the LEDL.
2. The trial court erred in granting Thurman Oils’ Motion for Summary Judgment when Smith presented a pri-ma facie case of prohibited employment discrimination as a qualified individual with a disability who was terminated because of his disability.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with supporting affidavits, if any, 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).

ASSIGNMENT OF ERROR NO. 1

Mr. Smith asserts that the trial court erred in holding that he had not demonstrated that he had a “disability” within the meaning of the ADA and the LEDL, because he established that Thurman Oils erroneously regarded his condition as substantially limiting his ability to work in a broad class of jobs.

| Louisiana Revised Statutes 23:322(3) defines a “disabled person” as “any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.” “Major life activities” are defined by La. R.S. 23:322(7) as “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”

These Louisiana statutes are similar to the Americans with Disabilities Act, 42 USC § 12101, et seq. In interpreting Louisiana’s employment discrimination laws, our courts have relied upon similar federal statutes and the interpreting federal jurisprudence. Thomas v. Louisiana Casino Cruises, Inc., 2003-1937, p. 3 (La.App. 1 Cir. 6/25/04), 886 So.2d 468, 470, writ denied, 2004-1904 (La.10/29/04), 885 So.2d 598.

Athough Mr. Smith asserts that Mr. Hernandez regarded him as being unable to work in a broad class of jobs, the testimony of Mr. Hernandez does not support that argument. Mr. Hernandez testified as follows:

Q. You also said you had no complaints about his quality of work, correct?
A. I have no complaints about his quality of work.
Q. How would you describe Marcus as an employee?
A. He was a fair employee.
Q. Well, at the time that Marcus was terminated, do you have any information to form a basis to believe that he could not physically drive a truck?
A. No.
* * *
Q. In fact, up until he was terminated, you had, from your own observation and knowledge, you had no reason to believe that Marcus, from a physical standpoint, couldn’t do his job, correct?
A. That is correct.
* * *
Q. You didn’t, at the time you terminated Marcus, you had no reason, no information to believe that he had symptoms of myotonic dystrophy that would have prevented him from physically driving a truck, correct?
A. That is true.
|rQ. And you certainly have no information to believe that he couldn’t have done the other two-thirds work that he did on an alternative basis, correct, the physical work around the plant?
A. That is true.
Further, Mr. Hernandez testified:
As a practical matter, though, I would have assumed at that time, if nothing else ... strictly from a practical standpoint that if this man has myotonic dystrophy, and myotonic dystrophy does affect the nerves, muscles, et cetera that it is alleged that it does, he didn’t need to be driving a truck from that moment on.

Clearly, the testimony of Mr. Hernandez shows that he did not regard Mr. Smith as unable to work in a broad class of jobs.

In Haase v. Bayou Steel Corp., 2000-1830 (La.App. 5 Cir. 3/14/01), 783 So.2d 474, writ not considered, 2001-1604 (La.9/14/01), 796 So.2d 670, the plaintiff suffered from color vision deficiency and claimed that his employer violated the Louisiana Civil Rights Act for Handicapped Persons (LCRHP), La. R.S. 46:2551 (the predecessor to the LEDL). Mr. Haase conceded that his condition did not substantially limit a major life activity; thus, the issue was whether his employer regarded him as having a disability that limited a major life activity. The trial court granted summary judgment in favor of the employer and the appellate court affirmed, stating:

Bayou Steel admittedly considered that Haase’s CVD precluded him from the particular job of electrical technician. However, there is nothing in the exhibits that indicates Bayou Steel regarded Haase as handicapped, in the sense of believing his impairment would substantially limit “one or more of life’s activities.” Rather, the evidence offered in support of the motion for summary judgment established that Bayou Steel only considered that the CVD rendered Haase unable to safely perform the particular duties of the particular position in electrical maintenance for which he applied.
We conclude that the trial court correctly found that plaintiff failed to get past the threshold requirement of proving that he was handicapped as defined in the LCRHP. Therefore, it is unnecessary to analyze the remainder of the statutory provisions. The LCRHP does not apply to plaintiff in this case.

Id., 2000-1830, at p. 8, 783 So.2d at 477-478.

LAs in the Haase case, in this case, Mr. Smith failed to show that he was “disabled” because Mr. Hernandez regarded him as unable to perform a broad class of jobs. Rather, Mr. Smith only showed that Mr. Hernandez felt it was dangerous for Mr. Smith to drive a fuel truck. This assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, Mr. Smith asserts that the trial court erred in granting Thurman Oils’ motion for summary judgment because he presented a prima facie case of prohibited employment discrimination as a qualified individual with a disability who was terminated because of his disability.

However, Mr. Smith’s own testimony established that he was not disabled within the meaning of the LEDL. He testified in deposition:

Q. And you felt like in January 2000, you could still perform the essential functions of your job at Thurman Oils; is that correct?
A. Yes, sir.
Q. Myotonic dystrophy was not a problem at that time?
A. No. Still ain’t.
Q. It did not impair your ability to safely drive the trucks?
A. No, sir.
Q. That’s correct?
A. That’s right.
Q. It did not impair your ability to walk; is that correct?
A. It didn’t hurt me at all.
Q. Did it impair your ability to see?
A. No, sir.
Q. Did it impair your ability to talk?
A. No, sir.
Q. Did it impair your ability to hear?
A. No, sir.
Q. Did it impair your ability to breathe?
A. No, sir.
Q. As far as you were concerned at that point, you were perfectly capable of performing the job?
A. Yes, sir.
Q. And your condition was not causing you any restrictions in your normal daily activities; is that correct?
A. No, sir.
|7Q. That’s correct?
A. Yeah.
Q. Now, was that still, is that still the state of your condition today?
A. Yes, sir.
Q. As we sit here today, the myotonic dystrophy does not impair your daily activities?
A. No, sir.

Clearly, Mr. Smith’s testimony established that he was not disabled within the meaning of the LEDL. Therefore, this assignment of error has no merit.

THE SOCIAL SECURITY DISABILITY ISSUE

While Mr. Smith’s testimony showed that he was not disabled, his Social Security disability application forms presented a different picture, which he failed to reconcile with his deposition testimony. Approximately two months after his termination from Thurman Oils, Mr. Smith filed a claim for Social Security disability benefits, stating that his “lungs, and hands, [and] myotonic dystrophy” prevented him from working because he had “no hand grip, [bjackaches, sore[n]ess of mus[c]les, inability to lift light or heavy objects!,][n]umb[n]ess ⅛ [a]rms [and] hands.” He stated that he went to the doctor on November 30, 1999, (two months prior to his termination) because of “los[s] of hand grip.” He stated, “I would like to work but I can not do hard work because of my back problems and because of my low I.Q. I am handicapped [i]n most other jobs.” In a supplemental application filed on March 9, 2000, Mr. Smith stated, “I am no longer able to work. I haven’t found anything I can do yet... It is harder for me to get in and out of the bath tub because of hand and leg we[a]knes[s] — it is very hard to [button] shirtfe] and pants.” Based upon his applications and his subsequent medical examination, Mr. Smith was found totally disabled and began receiving Social Security disability benefits.

In Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 1603, 143 L.Ed.2d 966 (1999), the Supreme Court stated that:

An ADA plaintiff bears the burden of proving that she is a “qualified individual with a disability”-that is, a person “who, with or without reasonable accommodation, can perform the essential functions” of her job. And a plaintiffs sworn assertion in an application for disability benefits that she is, for example, “unable to work” will appear to negate an essential element of her ADA case-at least if she does not offer a sufficient explanation. For that reason, we hold that an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation. (Citation omitted.)

In Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 259 (5th Cir.2001), the court affirmed the granting of a summary judgment, following Cleveland, stating:

Cleveland teaches that a plaintiff cannot change his story during litigation without a sufficient explanation for his inconsistent assertions. Holtzclaw has offered no sufficient explanation for the contradiction between his disability applications and his claim that, when he re-applied for the job, he could have worked even without reasonable accommodation. He therefore has failed to create a material issue of fact of whether he is qualified for the position he sought. Because he cannot establish that element of his prima fade claim, summary judgment was appropriate on the ADA claim.

In Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 480 (5th Cir.2000), the court affirmed the granting of a summary judgment against plaintiff in an ADA claim who made assertions in her Social Security disability claim that were fundamentally inconsistent with her ability to perform her job.

In McClaren v. Morrison Management Specialists, Inc., 420 F.3d 457, 466 (5th Cir.2005), the court affirmed the granting of a summary judgment in favor of the defendant in an age discrimination ADA case where the plaintiff failed to adequately explain inconsistencies between | ¡¡allegations in his suit and statements in his Social Security disability claim, holding that he could not simply disavow his statements to the Social Security Administration.

In Giles v. General Electric Co., 245 F.3d 474, 485 (5th Cir.2001), the court found that statements in a Social Security benefits claim that were inconsistent with plaintiffs ADA claim required explanation by the plaintiff. The court found that the statements properly provided the basis for summary judgment if they undermined the factual assertions necessary to plaintiffs ADA claim.

In the case sub judice, Mr. Smith’s statements to the Social Security Administration completely undermine his statements at deposition that he was capable of performing his job and that his condition was “inactive,” and his failure to reconcile the different statements provides an additional basis for the granting of the motion for summary judgment.

Therefore, after a de novo review, the trial court judgment is affirmed. Costs of this appeal are assessed against Mr. Smith.

AFFIRMED.

WHIPPLE, J., concurs.


author: KUHN, J.

text:
    In re: T.M.L. Applying for Intrafamily Adoption.
    No. 2006 CJ 1442.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Jill Leber, Covington, Counsel for Plaintiffs/Appellees L.C.J. and J.L.J.
    Nancy L. Penton, Covington, Counsel for Defendant/Appellant M.J.A.
    Theresa A. Beckler, Covington, Counsel for Appellee Department of Social Services, Office of Community Services.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| -.This appeal involves a judgment ordering an intrafamily adoption. We vacate this judgment and remand this matter for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

J.L.J., the natural mother of T.M.L. (the minor child), and L.C.J., who married J.L.J. several months after T.M.L. was born, filed a petition for intrafamily adoption. The petitioners alleged that J.L.J. has exercised physical custody of T.M.L. since his birth on February 25, 2004. They further alleged that the alleged biological father, M.J.A., has not supported the child since his birth and that M.J.A has failed to “visit, communicate or attempt to communicate with the child without just cause for a period of 6 months.” J.L.J also executed an authentic act by which she consented to the adoption of her child by L.C.J, and the petitioners further alleged that the adoption by L.C.J. was in T.M.L’s best interest.

M.J.A. initially filed a pro se letter of opposition to the minor child’s adoption, and he later hired counsel, who represented him during an April 25, 2006 hearing that addressed whether the adoption decree should be entered. At this hearing, appearances were made by counsel for petitioners and counsel for M.J.A. On that day, after hearing the testimony of the petitioners and M.J.A., the trial court signed a final decree of adoption.

II. ANALYSIS

Chapter 11 of Title XII of the Children’s Code, which contains Articles 1243 through 1258, sets forth the relevant procedures for intrafamily adoptions. ¡¡¡Persons who may petition for an intra-family adoption must file a petition that sets forth certain proscribed information. La. Ch. C. arts. 1243 and 1246. Louisiana Children’s Code article 1247 C further provides, in pertinent part:

If the adoption petition names an alleged ... father and his parental rights have not been terminated by a court of competent jurisdiction, he shall be served with notice of the filing of the petition ... and thereafter, his rights shall be determined in accordance with the provisions of Articles 1187 through 1143.

Louisiana Children’s Code article 1137 A establishes that the alleged father may file an opposition to the proposed adoption. After receiving such notice of an opposition, “[T]he court shall appoint an attorney to represent the child .... Neither the child nor anyone purporting to act on his behalf may be permitted to waive this right. The costs of the child’s representation shall be taxed as costs of court.” La. Ch. C. art. 1137 B. “Throughout the Children’s Code, independent counsel is typically required for the child in disputed cases.” (quoting Lucy S. McGough & Kerry Triche, Louisiana Children’s Code Handbook 2006, Authors’ Notes, at 649.) Louisiana Children’s Code article 1255 also mandates that the basic consideration of the court with regard to intrafamily adoptions “shall be the best interests of the child.” In such a disputed case, the child’s individual best interests warrant protection by independent legal representation. Further, we recognize that adoption is a creature of statute and all of the statutory requirements must be strictly carried out otherwise the adoption is an absolute nullity. In re Byrd, 226 La. 194, 199, 75 So.2d 331, 332 (La.7/2/54).

In the present case, the petition named M.J.A. as the alleged father and did not set forth allegations that a court of competent jurisdiction had terminated M.J.A.’s paternal |4rights. The record does not otherwise establish that M.J.A.’s rights have been terminated. Further, M.J.A has opposed the proposed adoption. Thus, in accordance with Louisiana Children’s Code article 1137 B, the trial court was obligated to appoint an attorney to represent the minor child before holding the contradictory hearing regarding the adoption. Since the court failed to take such action to protect the minor child’s best interest, we must vacate the trial court’s judgment that ordered the adoption and remand for further proceedings in accordance with this opinion.

III. CONCLUSION

For these reasons, the trial court’s April 25, 2006 final decree of adoption is vacated. This matter is remanded with instructions to the trial court to appoint counsel to represent the minor child. Assessment of appeal costs is to await a final disposition of this matter.

VACATED AND REMANDED.

      . Our reference to the petition includes the allegations contained in the initial petition and in two supplemental petitions,


author: DOWNING, J. HUGHES, J.,

text:
    STATE of Louisiana in the Interest of L.H.
    No. 2006 CJ 1786.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Wayne M. Aufrecht, Covington, Counsel for Mother/Appellant M.K.F.
    Assistant District Attorney, Ysonde K. Boland, Department of Social Services, Alison Nations, Covington, Counsel for Plaintiff/Appellee Department of Social Services.
    Marshall Greis, Amber L. Mitchell, Cov-ington, Counsel for the Child L.H.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

12This appeal arises from a case review/permanency review judgment regarding L.H., a twelve-year-old child in custody of Louisiana Department of Social Services/Office of Community Services (OCS). L.H.’s mother appeals the trial court judgment that continued the child in custody of OCS but changed L.H.’s placement goal from reunification to adoption. For the following reasons, we reverse the trial court judgment.

In June 2004, L.H. and her mother, M.K.F., moved from Texas to Covington, Louisiana, to reside with M.KF.’s boyfriend, R.C. On April 18, 2005, OCS received a report regarding L.H.’s lack of supervision. This led to an allegation of sexual abuse. Specifically, L.H. accused R.C. of fondling her beneath her clothes when he put her to bed at night. M.K.F. did not believe the accusation against her boyfriend. Consequently, OCS removed L.H. from the home and placed her in foster care.

OCS had L.H., M.K.F. and R.C. undergo psychological evaluations by Dr. Rafael F. Salcedo, a forensic psychologist. After the evaluations, Dr. Salcedo reported that L.H., who was ten years old at the time, had a verbal IQ of 70, indicating a mild retardation. He reported that M.K.F., a fifty-one-year old female, was in denial about the alleged sexual abuse and that at this time, she was not in a position to adequately protect the child from further abuse. Dr. Salcedo reported that he found R.C. to be a fifty-two-year old male who was extremely defensive about the charges against him. Dr. Salcedo reported that he could not determine if R.C. had any underlying sexual disorders. R.C. was arrested and charged with a related offense.

[a0n May 17, 2005, the OCS child welfare specialist, Carmen Clay, formulated a case plan in which M.K.F. was to be instructed on how to provide a safe and stable home for her child. This included parenting skill classes in which M.K.F. and R.C. were both enrolled. The case plan also provided that M.K.F. was to attend therapy sessions with Julie Kringas, the clinical director for Family Services of Greater New Orleans — Northshore Offices. A hearing was held on July 14, 2005, and the trial court ordered that L.H. be continued in custody at a certified foster home. The trial court approved the May 17, 2005 case plan submitted by OCS, approving the goal of reunification for M.K.F. and L.H.

The record reflects that pursuant to the case plan, M.K.F. attended the scheduled weekly visits with L.H., attended all therapy sessions, paid OCS the required child support amount, found stable employment, and secured separate housing for herself. Ms. Clay reported these results to the court. Ms. Clay’s report also recommended that the ultimate goal in this matter was to be reunification. On December 1, 2005 the court again ratified the six-month review case plan confirming that the goal was still reunification.

Ms. Kringas continued counseling M.K.F on a weekly basis until she discovered that M.K.F. was independently seeing another counselor. At this time, Ms. Krin-gas terminated her relationship with M.K.F. and stated that she could not continue the therapy because she considered treatment by two therapists to be unethical. Ms. Kringas then alerted OCS that her relationship with M.K.F. had been terminated because M.K.F. was not making progress in therapy. Ms. Kringas also informed OCS that in her opinion, M.K.F. was angry with L.H. about the abuse accusations and, therefore, she was unable to protect the child from further abuse. It was also |4her opinion that M.K.F. was not putting the child first, which showed a lack of empathy towards the child as a victim.

After Ms. Kringas discontinued her treatment of M.K.F., she continued treatment with Ms. Teri Groves, an independent therapist. At the hearing on May 9, 2006, which is the subject of the judgment at issue, Ms. Groves explained to the trial court how M.K.F. felt alienated when she began therapy with Ms. Kringas. She felt that OCS was not on her side. Ms. Groves explained to the court that until the therapist can get the client to let her guard down, the client would be unable to work through difficult issues such as the denial issues in this case. Ms. Groves further explained that when she began to introduce M.K.F. to concepts of how to work through her denial and to see that R.C. was perhaps guilty of the allegations, she saw M.K.F. making progress in this direction. She explained to the court some of the techniques that are used to build goals and to further the reunification objective. Ms. Groves testified that she found M.K.F. to be “very sincere.” She concluded that although she needed some help working through her denial, her reaction was typical in this sort of situation. Ms. Groves said that she had seen M.K.F. go from “absolutely not entertaining that idea [that R.C. abused the child], to having more flexibility in her thinking.” Ms. Groves further testified that it was paramount that M.K.F. and L.H. have therapy independently as well as together, so that each person could participate in the conversation and discuss their grievances.

OCS did not consider Ms. Groves’ treatment or conclusions in formulating its proposed ease plan, but her testimony before the trial court was uncontradicted.

[sThe record reveals that the foster custodians caring for L.H. told OCS that they wanted to adopt her if the opportunity arose. On March 17, 2006, OCS changed the M.K.F./L.H. case plan from reunification to termination of parental rights and adoption. After a hearing on May 9, 2006, the trial court adopted the OCS case plan and ruled that M.KF. had made inadequate progress toward alleviating or mitigating the causes necessitating L.H.’s placement in foster care. It also ruled that reunification was impossible at this time and approved the goal change from reunification to adoption.

In addressing the goal change from reunification to adoption, the trial court stated that OCS had made the necessary efforts to achieve permanency. However, the trial court erred in focusing on OCS’s efforts in accordance with La. Ch.C. art. 702 E. The Children’s Code also requires the court to consider whether the parent is “complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.” La. Ch.C. art. 702 C(l).

The uncontradicted evidence in the record shows that M.K.F. was complying with the case plan. And while the judgment at issue states that M.K.F. has made inadequate progress, the proposed OCS case plan presented to the trial court failed to address the progress that M.K.F. was making with Ms. Groves after Ms. Kringas declined to continue M.K.F.’s treatment. Ms. Groves testified that M.K.F. was having trouble with her relationship with OCS. She also testified without contradiction that M.K.F. was now making substantial progress in the reunification process. Even counsel for L.H. argues on appeal that M.K.F. has made substantial progress, though reunification is not appropriate at this time.

|(;We therefore conclude that the trial court’s finding that M.K.F. was making inadequate progress is unsupported by the record, in light of the uncontradicted evidence of Ms. Groves, an expert witness in the field of licensed social work, whose credibility and conclusions are unaddressed and unimpeached.

On review of the record, we reverse the trial court’s ruling approving the OCS case plan dated March 17, 2006. We also reverse the case plan’s goal of adoption for permanent placement. We order OCS to develop a plan consistent with the goal of reunification, subject to further review as provided by law.

The cost of this appeal in amount of $344.50 is assessed against Louisiana Department of Social Services/Office of Community Services. This memorandum opinion is rendered in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1 B

REVERSED.

PETTIGREW, J., concurs with result.

HUGHES, J., concurs with reasons.

HUGHES, J.,

concurring.

| When M.K.F. dared to seek help in a manner not sanctioned by OCS or its hand picked therapist, the goal of the ease plan was changed from reunification to adoption and termination of parental rights.

Brutally controlling behavior is not always conducive to the best interests of our most vulnerable children.

      . Case review judgments and permanency judgments are immediately appealable in accordance with La. Ch.C. arts. 700 and 710.

      . M.K.F. is actually L.H.'s biological grandmother. She adopted L.H. at birth.

      . The record does not reflect the status of this charge or if R.C. was ever convicted.

      . The record reveals that Ms. Groves offered to discontinue her treatment if Ms. Kringas would continue hers. When Ms. Kringas failed to re-commence her treatment of M.K.F., Ms. Groves continued to treat her.


author: GREG G. GUIDRY, Judge.

text:
    Rusty ALLEN v. VALERO ENERGY CORPORATION.
    No. 06-CA-726.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 9, 2007.
    James E. Uschold, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.

      Charles H. Hollis, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| .¿The Plaintiff, Rusty Allen, appeals from a judgment denying his exceptions of prematurity and lack of subject matter jurisdiction filed in response to a reconven-tional demand filed by the Defendant, Va-lero Energy Corporation, in the Plaintiffs wrongful termination suit. We dismiss the appeal, reserving to the Plaintiff his right to file an application for supervisory writs within 30 days from this opinion.

The Plaintiff, fired from his job with the Defendant for testing positive for illegal drug use, filed a petition for damages in January 2006, alleging that the Defendant terminated him based on the wrongful use of an illegal hair test. The Plaintiff alleges that the Defendant failed to comply with the testing requirements for employers to follow in testing employees, as set out in La.R.S. 49:1005 B.

In response, the Defendant filed an answer and reconventional demand for breach of contract. The Plaintiff then filed a dilatory exception of prematurity and ha declinatory exception of lack of subject matter jurisdiction to the recon-ventional demand. The Plaintiff asserts that the Defendant’s complaints must be resolved through arbitration based on a reinstatement agreement signed by the parties. In July 2006, the trial judge denied the exceptions. The Plaintiff filed a motion for new trial, which was also denied. He subsequently appealed.

After our first review of the case, we concluded that the denial of the motion to stay is an interlocutory, non-appealable judgment, and issued an order to show cause why the appeal should not be dismissed. The Plaintiff responded that the appeal should be maintained. He contends that the parties agreed to arbitrate under the federal arbitration law, which allows an appeal from the denial of a stay .order. See: 9 U.S.C. § 16(a). The Plaintiff asserts that to deny the right would frustrate the purposes and objectives of the Federal Arbitration Act.

We first note that the record does not contain any evidence that the parties agreed to have the federal arbitration law govern. The Plaintiff attaches a document purporting to support that contention to his brief. However, this Court cannot consider any evidence not properly introduced into the trial court record.

Second, we agree that the federal law on arbitration preempts state law in some instances, and provides guidance for resolving arbitration issues. Aguillard v. Auction Management Corp., 04-2804, p. 8 (La.6/29/05), 908 So.2d 1, 8. Nevertheless, the right to appeal a decision of the state court is not one of those instances. The right to appeal is a jurisdictional issue controlled by the laws of Louisiana.

In the past, Louisiana courts have found that the denial of an exception of prematurity based on an agreement to arbitrate is a non-appealable, interlocutory [Judgment, but because of the potential for irreparable injury allowed an appeal to be taken pursuant to La.C.C.P. art.2083. See: Warren v. Southern Energy Homes, Inc., 00-1236 (La.App. 3rd Cir.10/4/00) 771 So.2d 214 and Rauscher Pierce Refsnes, Inc. v. Flatt, 93-1672 (La.App. 4th Cir.2/11/94); 632 So.2d 807. However, La. C.C.P. art.2083 was amended by the legislature effective January 1, 2006. The statute now provides that an interlocutory judgment is appealable only when expressly provided for by law. Id. The legislature in amending the article, deleted the provision allowing an appeal of an interlocutory judgment that might cause irreparable injury. Under the amended statute, this judgment is no longer appealable, as there is no express law permitting the Plaintiff to appeal an interlocutory judgment denying an exception of prematurity where an arbitration agreement is alleged. Furthermore, there is no express law allowing the appeal from an interlocutory judgment denying an exception of lack of subject matter jurisdiction that is based on the alleged prematurity. Therefore, the appeal must be dismissed. However, because we can review the judgment under our supervisory jurisdiction, we will grant the Plaintiff adequate time to file his application for supervisory writs.

Accordingly, the appeal is dismissed. The Plaintiff has 30 days from the date this opinion is rendered to file an application for supervisory writs.

APPEAL DISMISSED.

      . We note in both Aguillard and International River Center v. Johns-Manville Sales Corp., 02-3060 (La. 12/3/03), 861 So.2d 139, 143, the Court discussed the issue of whether the court or arbitrator decides the waiver issue.

      . See: Ganier v. Inglewood Homes, Inc., 06-0642, p. 1 (La.App. 4th Cir. 11/8/06), 944 So.2d 753 involving an exception of prematurity based on an alleged arbitration agreement.