Grant C. Bennett, Sr. and Grant C. Bennett Insurance Agency, Inc. v. Louisiana Department of Insurance

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2020 CA 0666

GRANT C. BENNETT, SR. AND GRANT C. BENNETT INSURANCE AGENCY, INC.

VERSUS

LOUISIANA DEPARTMENT OF INSURANCE

Judgment Rendered: MAY 12 2021

On Appeal from the

Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana

Docket No. C- 653, 771

The Honorable Timothy E. Kelly, Judge Presiding

Vincent F. Wynne, Jr. Attorneys for Plaintiffs/ Appellants, Shannon K. Lowry Grant C. Bennett, Sr. and R. Gary Higgins, Jr. Grant C. Bennett Insurance Agency, Covington, Louisiana Inc.

Dominique Jones Attorney for Defendant/ Appellee, Scott Whitford Louisiana Department of Insurance Baton Rouge, Louisiana

BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.

PENZATO, J.

This is an appeal by Grant C. Bennett, Sr. and Grant C. Bennett Insurance Agency, Inc. of a district court judgment dated January 21, 2020, which affirmed the administrative law judge' s decision that affirmed the Louisiana Department of

Insurance' s ( Department) revocation of Mr. Bennett' s and Grant C. Bennett

Insurance Agency, Inc.' s licenses and imposition of fines. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Mr. Bennett and Grant C. Bennett Insurance Agency, Inc. ( collectively Appellants") held Louisiana insurance producer licenses, which the Department

summarily suspended on July 1, 2015. On July 28, 2015, Appellants appealed the suspension action and requested a stay of the suspension until the appeal was decided. Prior to the hearing on the request for a stay, the Department revoked Appellants' licenses and imposed fines of $ 5, 000. 00 on each Appellant.

Appellants requested that the revocation of the licenses also be stayed, which was

granted with the stay of the summary suspensions. The Department subsequently filed a supplemental notice of revocation and civil fine dated September 9, 2015,

which cited further violations of the Insurance Code.

On November 3, 2016, an administrative hearing took place before an administrative law judge ( ALJ), who rendered judgment in favor of the

Department, affirming the revocations and fines issued against both Appellants. Appellants filed a petition for judicial review in the Nineteenth Judicial District

Court, appealing the decision of the ALJ. After a hearing held December 9, 2019, the district court signed a judgment dated January 21, 2020, which provided, in pertinent part, as follows:

W

The Court, having considered the Petition and the briefs submitted by the parties, applicable law, arguments of counsel, and for the reasons orally assigned:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that upon Judicial Review, the Petition for Review of Grant C. Bennett, Sr., and Grant C. Bennett Insurance Agency, Inc., is DENIED.

IT IS FUTHER ORDERED, ADJUDGED, AND

DECREED that the disposition of this judicial review was my ruling issued on December 9, 2019, at the hearing on this matter.

It is from this judgment that Appellants appeal.

LAW AND DISCUSSION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Advanced Leveling & Concrete Solutions v. Lathan Co., Inc., 2017- 1250 ( La. App. 1st Cir. 12/ 20/ 18),

268 So. 3d 1044, 1046 ( en Banc). This court' s appellate jurisdiction extends only to " final" judgments. See La. C. C. P. art. 2083( A); De Vance v. Tucker, 2018- 1440

La. App. 1st Cir. 5/ 31/ 19), 278 So. 3d 380, 382. Under Louisiana law, a final judgment is one that determines the merits of a controversy in whole or in part. La. C. C. P. art. 1841.

A valid judgment must be " precise, definite, and certain." Laird v. St.

Tammany Parish Safe Harbor, 2002- 0045 ( La. App. 1 st Cir. 12/ 20/ 02), 836 So. 2d 364, 365- 366. Moreover, a final appealable judgment must contain decretal

language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001- 2016 ( La. App. 1st Cir. 11/ 27/ 02), 837 So. 2d 439 44. These determinations should be evident from the language of a

judgment without reference to other documents in the record, such as pleadings

and reasons for judgment. Advanced Leveling, 268 So. 3d at 1046. Thus, a

judgment that does not contain decretal language cannot be considered as a final judgment for the purpose of an immediate appeal, and this court lacks jurisdiction to review such a judgment. See Johnson v. Mount Pilgrim Baptist Church, 2005-

0337 ( La. App. 1st Cir. 3/ 24/ 06), 934 So. 2d 66, 67.

The Department charged appellants with violating La. R.S. 22: 1554( A)(3), 4) and ( 5), initially suspended the licenses, and ultimately revoked both licenses and fined both appellants. Louisiana Revised Statutes 22: 1554( C) permits a party aggrieved by the Department' s determination to demand a hearing with the Division of Administrative Law in accordance with La. R.S. 22: 2191 et seq. An

aggrieved party may within thirty days after mailing of notice of the act or order of the Department demand a hearing, which is to be held in accordance with La. R.S. 49: 950 et seq. La. R.S. 22: 2191( A) & ( B). The ALJ conducted such a hearing on November 3, 2016, affirming the decision of the Department. Judicial review of

administrative decisions, such as those by the Department, is governed by La. R.S. 49: 964( G) of the Louisiana Administrative Procedure Act, which provides that a court " may affirm the decision of the agency or remand the case for further proceedings[,]" and further provides the circumstances under which an

administrative decision may be modified or reversed. An aggrieved party may obtain a review of any final judgment' of the district court by appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil

cases. La. R.S. 49: 965; Thigpen v. Louisiana State Board of Nursing, 2013- 0841

This court has consistently defined a final judgment according to the articles contained in Book Il of the Louisiana Code of Civil Procedure. See Wachovia Mortgage Corp. v. Hoover, 2019- 1520 ( La. App. 1st Cir. 9/ 21/ 20), So. 3d , 2020 WL 5627169, at * 2, which states:

This court' s appellate jurisdiction extends only to " final judgments." See La.

Code Civ. P. art. 2083( A). Louisiana Code of Civil Procedure article 1918 provides that "[ a] final judgment shall be identified as such by appropriate language."

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La. App. 1st Cir. 2/ 14/ 14), 138 So. 3d 16, 22.2 When reviewing an administrative final decision, the district court functions as an appellate court. Id.

Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La. C. C. P. art. 2082. Louisiana Code of Civil Procedure article 2083( A) provides that a final

judgment is appealable. This court has consistently dismissed appeals of district court judgments that were not final due to lack of decretal language, even when

brought pursuant to the district court' s appellate jurisdiction of a petition for judicial review. See Miller v. McCain, 2019- 1607 ( La. App. 1st Cir. 8/ 17/ 20), 311 So. 3d 401, 404; Smith v. Department ofPublic Safety and Corrections, 2020- 1202 La. App. 1st Cir. 4/ 16/ 21), 2021 WL 1438721 ( unpublished). Furthermore, in

Metcalfe & Sons Investments, Inc. v. State ex rel. Department of Natural.

Resources, 2010- 2120 ( La. App. 1st Cir. 12/ 14/ 11), 2011 WL 6288044, at * 2

unpublished), writ denied, 2012- 0143 ( La. 3/ 23/ 12), 85 So. 3d 94, this court had

to first determine whether there was a final judgment before the court arising from the judicial review by the district court of an administrative hearing. The court did find the judgment to be final and the appeal proper since the district court judgment " Reversed" the decision of the Commissioner of Administration. Such

disposition is not present in the judgment in the instant case.

The January 21, 2020 judgment denies the Appellants' petition for judicial

review and directs that " the disposition of this judicial review was my ruling issued 2 Ordinarily, appeals are from final judgments. La. C. C. P. art. 2083. Smith v. UNR Home Prod., 614 So. 2d 54, 54 ( La. 1993). The Louisiana Code of Civil Procedure defines three types of judgments: ( 1) an interlocutory judgment, which determines preliminary matters in the course of an action, but does not determine the merits ( La. C. C. P. art. 1841); ( 2) a final judgment, which determines the merits of the case in whole or in part ( La. C. C. P. art. 1841); and ( 3) a partial final judgment, which disposes of some, but not all, of the issues on the merits, and in some instances requires a designation of finality by the trial court for the purpose of an immediate appeal ( La. C. C. P. art. 1915). Different rules govern the appealability of these three types of judgments.

See La. C. C. P. arts. 2083( A), 2083( C), and 1915( B) (" A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814," whereas "[ a] n interlocutory judgment is appealable only when

expressly provided by law.")). West Baton Rouge Parish Council v. Tullier, 2018- 1722 ( La. App. 1st Cir. 1/ 11/ 21), So. 3d , 2021 WL 82340, at * 3 & n. 3.

on December 9, 2019, at the hearing on this matter[,]" but does not affirm, remand, reverse, or modify the decision of the Department.' A final appealable judgment

must contain appropriate decretal language disposing of or dismissing claims in the case. See Kelley v. Estate of Kelley, 2019- 1044 ( La. App. 1 st Cir. 2/ 21/ 00), 299 So. 3d 720, 722 ( judgment granting motion for summary judgment but not dismissing all claims lacked appropriate decretal language); Johnson, 934 So. 2d at 67 ( finding that language in a judgment that granted an exception of no cause of

action but did not dismiss plaintiffs' claims lacked appropriate decretal language

and did not constitute a final judgment for purposes of immediate appeal). As

outlined previously herein, the judgment did not affirm, remand, reverse, or modify the decision of the agency pursuant to La. R.S. 49:965( G). Because the judgment

lacks sufficient decretal language, ascertainable from the four corners of the

judgment, the ruling on which this appeal is based is not a final judgment. See

DeVance, 278 So. 3d at 382. In the absence of a valid final judgment clearly stating or ordering the relief to be granted, we lack subject matter jurisdiction, and the appeal must be dismissed. See Advanced Leveling, 268 So. 3d at 1046- 47.4 We recognize this court has discretion to convert an appeal of a non -

appealable judgment to an application for supervisory writs. See Stelluto v.

Stelluto, 2005- 0074 La. 6/ 29/ 05), 914 So. 2d 34, 39. However, when the

jurisdictional defect lies in the non -finality of a judgment, an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate

While on December 9, 2019, the district court orally affirmed the prior decision in open court, the judgment fails to contain language affirming the decision.

4 This court is cognizant of the case of McQueary-Layne v. Louisiana Board of Nursing -RN Division, through LSBN, 2019- 0641 ( La.App. 1st Cir. 3/ 10/ 20), 2020 WL 8459145, at * 3 unpublished action).However, we find McQueary-Layne to be distinguishable from the present case. In McQueary-Layne while the judgment at issue referred to a document outside the judgment and not attached to same, the judgment included language affirming the prior decision of the agency. Based upon the inclusion of language affirming the agency decision in the judgment, this court determined that the judgment was a final appealable judgment pursuant to La. R. S. 49: 964( G). However, clearly the court recognized and addressed the issue of lack of subject matter jurisdiction.

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remedy exists by appeal, particularly when an adequate remedy by appeal will exist upon the entry of the requisite precise, definite, and certain decretal language necessary for appellate review. Markiewicz v. Sun Construction, LLC, 2019- 0869 La. App. 1st Cir. 5/ 28/ 20), 304 So. 3d 877, 880 n.3. Accordingly, we decline to exercise our discretion to convert this appeal of a judgment that is not final for lack

of precise, definite, and certain decretal language to an application for supervisory writs.

CONCLUSION

For the above and foregoing reasons, the appeal of the January 21, 2020 judgment is hereby dismissed. Costs of this appeal are assessed one- half against

Grant C. Bennett, Sr. and Grant C. Bennett Insurance Agency, Inc. and one- half against the Louisiana Department of Insurance in the amount of $1669. 00.

APPEAL DISMISSED.

GRANT C. BENNETT, SR. STATE OF LOUISIANA AND GRANT C. BENNETT INSURANCE AGENCY, INC. COURT OF APPEAL

VERSUS FIRST CIRCUIT

LOUISIANA DEPARTMENT OF NO. 2020 CA 0666 INSURANCE

r HOLDRIDGE, J., dissenting. v I respectfully dissent. In this case, this Court has subject matter jurisdiction

to review a final judgment rendered by the district court that denied a petition for judicial review filed by Grace C. Bennett, Sr. and Grant C. Bennett Insurance Agency, Inc. The district court was functioning as an appellate court, i.e. Thigpen v. Louisiana State Bd. of Nursing, 2013- 0841 ( La. App. 1 Cir. 2/ 14/ 14), 138 So. 3d 16, 23, and denied the request of the appellants to reverse or modify the decision of the administrative agency. See La. R.S. 49: 964( G). The lack of decretal language does not deprive this Court of subject matter jurisdiction just as the Supreme Court is not deprived of jurisdiction to hear a case from the Court of Appeal because of the lack of decretal language. See La. C. C. P. art. 1918. The words " reversed"

Metcalfe & Sons Investments Inc. v. State ex rel. Department of Natural

Resources, 2010-2120 ( La. App. 1 Cir. 12/ 14/ 11), 2011 WL 6288044, at * 2, writ

denied, 2012- 0143 ( La. 3/ 23/ 12), 85 So. 3d 94)) and " affirmed" ( McQueary- Layne

v. Louisiana Board of Nursing - RN Division Through LSBN, 2019- 0641 ( La.

App. 1 Cir. 3/ 10/ 20), 2020 WL 8459145, at * 2 ( unpublished)) have been found to

be sufficient for this Court to review the decision of the trial court acting as an appellate court. In this case, the trial court " denied" the petition for judicial review

and orally affirmed the administrative decision in its reasons. I find that this is a reviewable final judgment.

Therefore, I respectfully dissent and find that this Court should not dismiss the appeal in this case, but should decide the case, or at the very least, retain jurisdiction and remand the case for the district court to correct any possible defect in the judgment in accordance with this Court' s decision in Ledet v. Louisiana Department of Public Safety and Corrections, 2017- 1457 ( La. App. 1 Cir. 9/ 24/ 18), 259 So. 3d 348, 350 n.2, writ denied, 2018- 1751 ( La. 1/ 28/ 19), 262 So. 3d 901.