Opinion
Nos. M99-723 and 99-738.
August 4, 1999.
ON APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, STATE OF LOUISIANA, HONORABLE CHARLEY QUIENALTY, JUDGE, PRESIDING.
BEFORE: DOUCET, YELVERTON, and GREMILLION, JJ.
ORDER
On May 19, 1999, defendants-appellees, John Cocchiara, M.D., and St. Patrick's Hospital, filed a Motion to Dismiss the appeal which motion was assigned docket number M99-723, and on May 20, 1999, this court, sua sponte, issued a rule to show cause why the above captioned appeal at docket number 99-738 should not be dismissed as having been taken from an non-appealable judgment. Plaintiff-appellant, Dora Lawrence, has responded neither to this court's rule nor to the defendants' Motion to Dismiss. For the reasons given below, we hereby dismiss the appeal.
Plaintiff filed the instant medical malpractice suit against defendants on February 13, 1996. In the course of conducting discovery in this action, defendant Dr. Cocchiara served requests for production of documents on plaintiff. Contending that plaintiff had not timely responded to these requests for production, Dr. Cocchiara filed a motion to compel a response. The motion to compel was granted, and a written judgment ordering plaintiff to respond within ten days of service of the judgment was signed by the trial court on December 19, 1997.
On January 16, 1998, Dr. Cocchiara filed a Motion to Consider Fact Established Due to Disobedience of Order to Respond to Request for Production of Documents, to Preclude Disobedient Party from Supporting Designated Claim and/or to Dismiss Action for Refusal to Obey Order to Respond to Request for Production of Documents. This motion asked that the trial court enter an order establishing as a fact for purposes of plaintiffs malpractice claim against Dr. Cocchiara that plaintiffs injury preexisted the asserted malpractice in the instant case since the requests for production which had gone unheeded purportedly pertained to this aspect of plaintiff's medical history. As alternative relief in the motion, defendant asked that plaintiff be prohibited from supporting her claim based on the contention that she had no preexisting back condition or that plaintiffs suit be dismissed. The motion also sought an award of costs, including attorney fees.
Following a hearing on Dr. Cocchiara's motion, the trial court signed a written judgment establishing as a fact for purposes of plaintiff's claim against Dr. Cocchiara that plaintiffs low back injury preexisted the incident on which plaintiffs suit is predicated. Plaintiff was also ordered to respond to other requests for production of documents and ordered to pay costs and attorney fees associated with these matters. This judgment was signed on June 23, 1998. Notice of the judgment was sent on July 17, 1998.
On July 30, 1998, plaintiff filed a Motion for New Trial arguing that the trial court's judgment establishing the preexisting back condition should be set aside. A hearing on the motion for new trial was held on November 9, 1998. Written reasons for denying this motion were given by the trial court on December 16, 1998, and a written judgment in conformity with this denial was signed on January 28, 1999. Notice of this judgment was sent on February 5, 1999.
On April 6, 1999, plaintiff filed a motion for a devolutive appeal. An order granting this appeal was signed by the trial court on April 15, 1999. The appeal was lodged in this court on May 20, 1999, and this court issued the above discussed rule to show cause why the appeal should not be dismissed on that same date. Additionally, defendants filed a Motion to Dismiss the appeal on May 19, 1999, arguing that the appeal was taken untimely. Alternatively, defendants assert that the appeal should be dismissed for having been taken from an interlocutory ruling that causes no irreparable injury.
Appeals may be taken from final judgments and interlocutory judgments that cause irreparable injury. La. Code Civ.P. art. 2083. A judgment which determines the merits of an action in whole or part is a final judgment, whereas a judgment which determines only a preliminary matter is an interlocutory judgment. La. Code Civ.P. art. 1841.
Plaintiff has sought an appeal from the trial court's judgment which sanctioned plaintiff for failing to obey the prior judgment of the court compelling responses to discovery requests aimed at determining whether plaintiff's low back injury was a preexisting condition. This judgment pertains only to preliminary issues. Therefore the judgment appealed is interlocutory. In moving for the appeal, plaintiff contended that irreparable injury would result from the trial court's ruling because the judgment effectively defeats plaintiff's claims against these health care providers.
In dismissing an appeal from a judgment of contempt for failure to comply with a previously entered order of the trial court compelling answers to written interrogatories, this court held:
Likewise, neither that portion of the judgment compelling further answers to the propounded interrogatories nor the order compelling payment of attorney's fees in connection with the contempt rule is appealable, for these orders are either interlocutory, or a necessary adjunct to the unappealable judgment of contempt.
To impede the progress of litigation by granting an appeal whenever statutory enforcement provisions of the discovery devices are invoked seems to us a policy most unwise, for the every purpose of discovery devices is to reduce the delays inherent in the enforcement and defense of legal rights. Appellant's remedy, an application to this court for supervisory writs, affords him speedy and ample protection against oppressive or unreasonable sanctions which may be imposed by the lower court during pretrial production of evidence.
Advertiser, Division of the Independent, Inc. v. Tubbs, 199 So.2d 426, 427 (La.App. 3 Cir. 1967) (footnotes omitted).
Likewise, in the instant case, we find that review of the order adjudicating certain facts as established pursuant to La. Code Civ.P. art. 1471 is not reviewable by appeal. Since the judgment rendered was not appealable, we find no merit to the defendants' motion to dismiss the instant appeal on the ground that the appeal was untimely. However, we find that the appeal must be dismissed as having been taken from a non-appealable judgment. Accordingly, we hereby dismiss the instant appeal at plaintiffs cost.
APPEAL DISMISSED .