Opinion
2023 CW 0808
03-22-2024
LINDA SMITH v. DIRT CHEAP OF LOUISIANA, LLC AND ZURICH AMERICAN INSURANCE COMPANY
Willie G. Johnson, Jr. Sophia J. Riley James L. Maughan Baton Rouge, Louisiana Attorneys for Plaintiff -Appellant, Linda Smith F. Forrester Willoz, IV Metairie, Louisiana Attorney for Defendants -Appellees, Dirt Cheap of Louisiana, LLC, and Zurich American Insurance Company Matthew W. Bailey Katherine M. Cook Shannon M. Jaeckel Hillary Brouillette Anderson Baton Rouge, Louisiana Attorneys for Defendant -Appellee, Cintas Corporation No. 2
WOLFE, J.
On Appeal from the 21st Judicial District Court Parish of Tangipahoa, State of Louisiana Trial Court No. 2021- 0001947 The Honorable Erika Sledge, Judge Presiding
Willie G. Johnson, Jr. Sophia J. Riley James L. Maughan Baton Rouge, Louisiana Attorneys for Plaintiff -Appellant, Linda Smith
F. Forrester Willoz, IV Metairie, Louisiana Attorney for Defendants -Appellees, Dirt Cheap of Louisiana, LLC, and Zurich American Insurance Company
Matthew W. Bailey Katherine M. Cook Shannon M. Jaeckel Hillary Brouillette Anderson Baton Rouge, Louisiana Attorneys for Defendant -Appellee, Cintas Corporation No. 2
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ.
WOLFE, J.
The underlying merits of this case involve a slip and fall on an alleged unreasonably dangerous and/or defective doormat at a store in Amite, Louisiana. However, this appeal involves a purely procedural ruling on a motion to compel discovery, which is interlocutory and not appealable. For the following reasons, we convert this matter to an application for supervisory writs, which is denied, and we affirm the trial court's February 27, 2023 judgment.
BACKGROUND
On July 9, 2021, Linda Smith brought suit for personal injury damages against the store where she tripped and fell, Dirt Cheap of Louisiana, LLC, and its insurer, Zurich American Insurance Company. By a supplemental and amending petition filed on May 27, 2022, Ms. Smith added another defendant, Cintas Corporation No. 2, the alleged supplier of the doormat that she tripped over.
The record reflects that the discovery process in this case has been very contentious to date. In April 2022, Dirt Cheap and Zurich filed a joint motion to compel the deposition of Ms. Smith, which was originally set for hearing on June 27, 2022, but was continued and eventually re-set for hearing on October 5, 2022. On October 24, 2022, the trial court judge signed a judgment ordering Ms. Smith to appear for her deposition within 45 days of the judgment. A week later, on October 31, 2022, Ms. Smith filed a motion for new trial, or alternatively, a motion for an annulment of the judgment ordering the deposition of Ms. Smith, on the grounds of insufficient service of the hearing notice. The hearing on Ms. Smith's motion was set for February 6, 2023. Dirt Cheap and Zurich filed an opposition to Ms. Smith's motion for new trial/annulment.
In the meantime, Cintas joined the discovery dispute by filing a motion to compel written discovery responses on December 12, 2022, seeking full and complete responses by Ms. Smith to Cintas's interrogatories and requests for production of documents that had been propounded to Ms. Smith in mid-August, 2022, as well as all costs and attorney fees, pursuant to La. Code Civ. P. art. 1469(4), connected with the motion to compel. The trial court set Cintas's motion to compel for hearing on February 6, 2023, the same day as Ms. Smith's motion for new trial regarding her compelled deposition. Because Ms. Smith's deposition had still not been scheduled as ordered by the trial court on October 24, 2022, Dirt Cheap and Zurich filed a joint motion for contempt against Ms. Smith on January 3, 2023. Ms. Smith filed an opposition on January 27, 2023. The trial court set the hearing on the same date as the other motions, on February 6, 2023.
Pursuant to La. Code Civ. P. art. 1469(4), if a motion to compel discovery is "granted, the court shall, after opportunity for hearing, require the party ... whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust."
At the hearing on February 6, 2023, the trial court orally granted Ms. Smith's motion for new trial based on inappropriate service of the notice of hearing for the motion to compel Ms. Smith's deposition. However, the trial court also stated that an order compelling the deposition to take place would occur after proper service. Additionally, the trial court orally granted Cintas's motion to compel. Three days later, on February 9, 2023, Dirt Cheap and Zurich filed a joint motion to compel Ms. Smith to respond to their written discovery. The trial court set that motion to compel for hearing on February 27, 2023. On February 10, 2023, Cintas joined in and adopted Dirt Cheap and Zurich's motion to compel Ms. Smith's deposition, and again asked for costs and attorney fees incurred in connection with the motion. The new motions to compel were set for hearing on February 27, 2023. Two days before that hearing, Ms. Smith filed an opposition to all of the pending motions to compel discovery, arguing that the motions were moot because all discovery responses had been provided and arrangements had been made for Ms. Smith's deposition.
The trial court signed a judgment on February 27, 2023, granting Cintas's first motion to compel and ordering Ms. Smith to provide complete responses to Cintas's written discovery within 15 days of the court's oral ruling at the hearing. The trial court's judgment also ordered Ms. Smith and her counsel to pay $5,300.00 to Cintas for attorney fees and expenses incurred relative to the motion to compel, including $386.44 in court costs. On March 21, 2023, the trial court signed another judgment granting the motion to compel Ms. Smith's deposition and ordering that her deposition take place on April 17, 2023.
The March 21, 2023 judgment was signed after Ms. Smith sought review of the February 27, 2023 judgment. Thus, we do not consider the March 21, 2023 judgment at this time.
On March 7, 2023, Ms. Smith filed a notice of intent to seek a supervisory writ of review of the trial court's ruling "rendered in this matter on February 6, 2023," as well as a motion and order for appeal from the "judgment rendered on February 6, 2023." The trial court signed orders setting a return date for the writ and granting the motion for appeal. The record does not contain any judgment dated February 6, 2023, but does include a transcript of the hearing held on that date. The trial court's written judgment after the February 6, 2023 hearing was rendered and signed on February 27, 2023. Ms. Smith's appeal was lodged in this court on August 24, 2023. Ms. Smith's appellate brief assigns error regarding the trial court's October 24, 2022 judgment that granted Dirt Cheap and Zurich's first motion to compel Ms. Smith's deposition, still arguing that service was insufficient on the motion. No mention is made of the February 27, 2023 judgment in Ms. Smith's appellate brief. Moreover, none of the defendants have answered the appeal or filed briefs with this court.
LAW AND ANALYSIS
Trial courts in Louisiana have broad discretion when regulating pretrial discovery, and such discretion will not be disturbed on appeal absent a clear showing of abuse. Royer v. Our Lady of the Lake Hospital, Inc., 2017-1764 (La.App. 1st Cir. 2/22/19), 2019 WL 851165, *6 (unpublished), writ denied, 2019-0489 (La. 5/28/19), 278 So.3d 307. Additionally, the law is well-settled that a judgment concerning an order compelling discovery is interlocutory, which is not appealable, regardless of whether any other matters are pending before the trial court. Moody v. Moody, 622 So.2d 1376, 1379 (La.App. 1st Cir.), writs denied, 629 So.2d 1168 (La. 1993); Jowers v. State through Dept, of Health and Hospitals, 610 So.2d 841, 843 (La.App. 1 st Cir. 1992). In this case, the motion to compel discovery does not concern the merits, and its disposition would not determine the merits of the case either in whole or in part.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. Code Civ. P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. La. Code Civ. P. art. 2083(C). Although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review on appeal when a final, appealable judgment has been rendered in the case. Hayward v. Hayward, 2012-0720 (La.App. 1st Cir. 3/18/13), 182 So.3d 966, 970.
Since the motion to compel discovery does not result in a final judgment, the proper remedy is an application for supervisory writs, not an appeal. See La. Code Civ. P. arts. 1841, 2201, and 2083. See also Duncan v. State ex rel. Dept, of Health and Hospitals, 2012-1969 (La.App. 1st Cir. 6/27/13), 2013 WL 3326173, *2 (unpublished). Ms. Smith timely filed a notice of intent to seek a supervisory writ of review when she simultaneously moved for an order of appeal within thirty days of rendition of the interlocutory judgment. The trial court improperly ordered an appeal, which we now convert to a writ so that we may review the merits under our supervisory jurisdiction. See Dunbar v. Howard, 2021-1171 (La.App. 1st Cir. 8/16/22), 348 So.3d 738, 744 (appellate courts have discretionary authority to convert an appeal from an interlocutory judgment to an application for supervisory writs).
Further complicating this matter, Ms. Smith mistakenly sought review of the trial court's rulings made on the hearing date, February 6, 2023, instead of the judgment date of February 27, 2023. In her brief filed with this court, Ms. Smith inexplicably references and discusses a completely different judgment that was signed on October 24, 2022. The record reveals that both judgments concern motions to compel. The October 2022 judgment involves Dirt Cheap and Zurich seeking to compel Ms. Smith's deposition. The February 2023 judgment involves Cintas seeking to compel Ms. Smith's written discovery responses and an order to pay Cintas's attorney fees and costs. The argument in Ms. Smith's brief focuses solely on improper service regarding the notice of the October 2022 hearing on Dirt Cheap and Zurich's motion to compel Ms. Smith's deposition. At the February 6, 2023 hearing, the trial court orally granted a new trial due to improper service of the hearing notice for the October 2022 motion to compel. However, we are obliged to note that a new trial is procedurally improper when it involves an interlocutory judgment on a motion to compel. See Lopiccolo v. State Farm Mutual Automobile Insurance Company, 2014-0901 (La.App. 1st Cir. 9/2/14), 2014 WL 12579611, *1 (unpublished). The remedy is a new motion to compel with proper service. Id. Nevertheless, the trial court has already addressed the motion for new trial, and that ruling is not properly before this court.
Turning to the February 27, 2023 judgment granting Cintas's motion to compel written discovery responses and ordering Ms. Smith and her counsel to pay Cintas's expenses and attorney fees connected with the motion to compel, including court costs, we find no irregularity with service on Ms. Smith. Moreover, we agree with the ruling of the trial court on Cintas's motion to compel. The record indicates that in conjunction with filing its answer to Ms. Smith's petition, Cintas propounded written interrogatories and requests for production of documents to Ms. Smith in August 2022. Cintas's counsel regularly sought responses to the discovery requests in October, November, and December 2022. Louisiana Code of Civil Procedure article 1469(4) authorizes a motion for an order compelling discovery and, if the motion is granted, Article 1469 authorizes the trial court to award attorney fees and reasonable expenses incurred in obtaining the order. We find no abuse of the trial court's discretion in granting Cintas's motion to compel and ordering Ms. Smith and her counsel to pay costs and attorney fees.
CONCLUSION
For the reasons assigned, we convert Linda Smith's appeal to an application for supervisory writs, deny the writ application, and affirm the trial court's February 27, 2023 judgment in favor of Cintas Corporation No. 2. All costs of this matter are assessed to plaintiff, Linda Smith.
APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY WRITS; WRIT DENIED; FEBRUARY 27, 2023 JUDGMENT AFFIRMED.