Carolyn Ann Duncan VS State of Louisiana, through the Department of Health & Hospital
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 1969 CAROLYN ANN DUNCAN VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS vG Judgment Rendered JUN 2 7 2013 x Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No 582 008 The Honorable Todd Hernandez Judge Presiding x t k k F F Otha Curtis Nelson Sr Baton Rouge Louisiana Counsel for Plaintiff Appellant Carolyn Ann Duncan James D Buddy Caldwell Attorney General Counsel for Defendant Appellee State of Louisiana through the Department of Health and Hospitals Tina Dennis Darensbourg Attorney General Baton Rouge Louisiana Assistant x BEFORE GUIDRY CRAIN AND THERIOT JJ THERIOT J This is an appeal of the Nineteenth Judicial District Court denial of a s motion to compel discovery filed by Carolyn Ann Duncan appellant plaintiff For the follqwing reasons we dismiss Ms Duncan s appeaL FACTS AND PROCEDtiRAI HISTORY On August 31 2009 Ms Duncan filed a petition for damages with interrogatories against the State of Louisiana through the Department of Health and Hospitals DHH with whom she alleged was doing business with the responsibility of supervising and managing the Adult Protective Services in East Baton Rouge Parish Ms Duncan alleged in her petition that on June 1 2008 she was issued a summons for simple battery of the infirm She retained legal counsel the following day for defense against the charge On February 3 2009 the District Attorney for the 19 JDC the DA dismissed the charge against Ms Duncan According to Ms Duncan petition the false accusation by DHH s caused damage to her reputation a loss in her income and earning capacity mental anguish pain and suffering loss of consortium with her family and forced her to incur attorney fees On September 25 2009 DHH filed a s peremptory exception raising the objection of prescription The trial court granted the exception on February 1 2010 dismissing Ms Duncan s petition without prejudice On the following day Ms Duncan filed a supplemental petition for damages against DHH for malicious prosecution DHH filed a peremptory exception raising the objection of res judicata as to the second petition on October 25 2011 The court denied that exception c n January 9 2012 On January 11 2012 Ms Duncan filed a second La R 1435 S 2 2 supplemental petition for damages namin the DA as an additional defendant in the malicious prosecution petition The DA filed a peremptory exception raising the objection of prescription on F 1 2012 and ebruary DHH filed an exception raising the objectiori no cause of action on March 14 2012 The DA exception for prescription was granted by the trial court s on Apri12 2012 Ms Duncan filed her motion to compel discovery on June 6 2012 since her interrogatories from August 31 2009 were still unanswered s DHH exception of no cause of action was granted by the trial cour on June 11 2012 dismissing Ms Duncan s petition with prejudice Ms s Duncan motion to compel discovery was denied by the trial court on August 13 2012 Ms Duncan instant appeal on the denial of her motion s to compel was filed on September 25 2012 DISCUSSION P C La art 1841 Judgments interlocutory and final A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled It may be interlocutory or final A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment A judgment that determines the merits in whole or in part is a final judgment A final judgment is appealable in all causes in which appeals are given by law and an interlocutory judgment is appealable only when expressly provided by law P C La art 2083 In the instant case Ms s Duncan motion to compel discovery does not concern the merits of the case and its disposition would not determine the merits of the case either in whole or in part Since a motion to compel discovery does not result in a 3 final judgment the proper remedy is therefore an application for supervisory writ Kreuger v Chehadeh 563 So 1358 1359 La App 4 Cir 1990 2d Discovery is a preliminary procedure that is normally disposed of prior to trial Before this instant matter went to trial the appellees filed several peremptory exceptions The trial court granted DHH exception of s prescription on Ms Duncan ariginal petition for damages dismissing the s petition without prejudice however Ms Duncan has not refiled that petition Rather she filed a new action for malicious prosecution against DHH and the DA The trial court granted the DA exception of s prescription and DHH exception of no cause of action dismissing both s parties from the action with prejudice All the exceptions were peremptory in nature P C La art 927 Ms Duncan actions were therefore A s defeated prior to their proceeding to trial Also there is no applicable law which would allow Ms Duncan to appeal the court ruling in this s circumstance Ms Duncan has no right to appeal the trial court sjudgment on the motion to compel and this instant appeal is improperly brought befare this court CONCLUSION Since the trial court judgment in regard to Ms Duncan motion to s s compel is interlocutory the appeal is not properly before this court We therefore dismiss the appeal and assess costs in this matter to the appellant Carolyn Ann Duncan APPEAL DISMISSED 4
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