Opinion
No. 33,829-CA
September 27, 2000.
APPEALED FROM THE TWENTY-SIXTH JUDICIAL DISTRICT COURT FOR THE PARISH OF WEBSTER, LOUISIANA TRIAL COURT NO. 58,719 HONORABLE FORD E. STINSON, JR., JUDGE.
BOBBY L. CULPEPPER ASSOCIATES, By: Bobby L. Culpepper Counsel for Appellant.
M. THOMAS ARCENEAUX, Counsel for Appellee.
Before BROWN, CARAWAY and KOSTELKA, JJ.
BROWN, J., dissents with reasons attached.
Richard Charles Baker ("Baker") appeals the summary judgment rendered against him to enforce the monetary terms of a Louisiana State Board of Dentistry ("LSBD") decision. We affirm.
Facts
On January 27, 1999, LSBD, an administrative board vested with the responsibility to regulate the practice of dentistry in Louisiana, rendered an administrative decision against Baker finding that he had violated statutory provisions which prohibited the prescribing, dispensing and administering of habit-forming or other legally controlled dangerous substances in other than a legitimate manner and failed to maintain prescription files and daily records on the substances he dispensed. LSBD also concluded that Baker failed to meet required hours of continuing education in 1997 and had failed to cooperate with the LSBD investigation. The decision assessed Baker with $16,500 in fines and allowed him to retain his restricted license on a probationary basis for ten years. Baker was also ordered to obtain the necessary hours of continuing legal education. The decision assessed Baker with the costs of the proceedings, which, along with the fines, were to be paid not later than thirty days after the decision.
Upon LSBD's motion, the committee which heard the original complaint considered additional evidence of Baker's prior purchases of large quantities of controlled dangerous substances and questionable actions in a prior lawsuit. Thereafter, LSBD rendered a Decision on Reconsideration on February 24, 1999, which amended the earlier decision and revoked Baker's license to practice dentistry and provided that Baker pay legal interest on any monetary portions of the decision which were not paid within thirty days of the rendition of the Decision on Reconsideration in accordance with La.R.S. 37:780B(2).
A certified copy of the cost tabulation shows a total amount of $18,293.32. Baker was served, through his attorney of record, with a copy of the Decision on Reconsideration and Costs of Adjudication on March 16, 1999. He took no appeal of the decision in accordance with La.R.S. 49:964 and made no payment of the fines and costs.
The record presents three different dates for the service of the various decisions and costs. Because Baker acknowledges service and the certificate of service attached to the petition shows that actual service of these documents occurred on March 16, 1999, we utilize this date for purposes of this opinion.
Accordingly, on August 12, 1999, LSBD filed suit against Baker to enforce the decision. Baker failed to answer LSBD's request for admissions of fact. On November 2, 1999, LSBD filed a Motion for Summary Judgment seeking judgment against Baker for the total amount of $34,793.32 (representing the $16,500 assessed in fines and $18,293.32 in costs) plus legal interest from March 26, 1999. Baker opposed the summary judgment and filed an exception of no right and/or no cause of action arguing that the provisions of La.R.S. 37:751, et. seq. gave LSBD no right to file the action to enforce the decision.
After a hearing on both the exception of no right of action and motion for summary judgment, the court denied the exception and granted summary judgment in favor of LSBD. This appeal ensued.
The record shows that Baker's counsel submitted for decision both the exception of no right of action and motion for summary judgment with his memoranda due to previously scheduled court appearances which prohibited his appearance at the scheduled hearing on November 23, 1999.
DISCUSSION
On appeal, Baker makes three arguments in support of his claim that the trial court erred in granting summary judgment. He first argues that because the affidavit of C. Barry Ogden ("Ogden"), the executive director of LSBD, failed to include sworn or certified copies of proof of service upon Baker of the costs of the administrative proceedings, in accordance with La.C.C.P. art. 967, summary judgment was inappropriately granted. Second, he argues that Baker's failure to answer requests for admissions of fact should not be used as the sole evidence in support of the motion for summary judgment. Finally, Baker claims that LSBD was not entitled to judgment as a matter of law because it possessed no authority to file a civil suit for enforcement of the monetary provisions of LSBD's decision.
LSBD's Right to Sue
Because Baker's final argument addresses the threshold inquiry of whether LSBD possesses the right to institute the present action, we first address this issue.
Baker couches this argument in terms of error in the trial court's granting of summary judgment. Although raising the issue in opposition to the summary judgment, he also raised it by exception of no right of action which the trial court rejected prior to the summary judgment hearing. With this issue not technically before the court on summary judgment, and because the no right of action exception is the appropriate procedural device for raising the issue of LSBD's standing to file suit, we direct our review to the propriety of the trial court's rejection of the exception. Woodward v. Tadlock, 621 So.2d 875 (La.App. 3d Cir. 1993), writ denied, 629 So.2d 392 (La. 1993).
The exception of no right of actions tests whether the particular plaintiff falls, as a matter of law, within the particular class to which the law grants a remedy for the particular harm involved. Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1st Cir. 05/19/99), 740 So.2d 173. The exception asks this specific question: can this plaintiff assert this particular cause of action? The exception is a threshold device to terminate a suit brought by one who has no interest in enforcing the right asserted. Id. On review of the peremptory exception of no right of actions, we must look to the substantive law involved. Id.
Baker argues that LSBD had no authority to file the present suit because the provisions regulating the practice of dentistry, Chapter 9 of Title 37, La.R.S. 37:751, et seq. (hereinafter "Chapter 9"), fail to explicitly give LSBD the right to sue or be sued. He argues that under Chapter 9, LSBD's sole remedy to collect monetary sanctions is through license reinstatement, i.e., the withholding of the license until fines are paid.
While we agree with Baker that Chapter 9 does not specifically state LSBD has the right to sue or be sued, we nevertheless find that right included within the regulatory and enforcement powers of LSBD.
Clearly, license reinstatement is one method that LSBD may utilize to enforce the payment of monetary sanctions under La.R.S. 37:783(B); however, we do not agree that it is the sole method of enforcement given to LSBD. To interpret the law as Baker suggests would make collection of the monetary sanctions effectively unenforceable until the dentist's decision to seek reinstatement of his license. Indeed, this is the very situation that this case presents. The record shows that Baker's license was indefinitely revoked for the illegal dispensing of drugs. Under Baker's interpretation of Chapter 9, LSBD could not enforce the monetary sanctions until Baker is relicensed. Therefore, should Baker choose not to seek reinstatement of his license or is never again board-approved for relicensing, LSBD would have no independent authority to collect the fines and costs. To place such contingencies on LSBD's authority to collect judgments is unreasonable and effectively renders the imposition of monetary sanctions hollow and unenforceable.
Nor is Baker's position statutorily substantiated. LSBD is an administrative agency within the Department of Health and Hospitals which performs the functions of carrying out the purposes and enforcing the statutory provisions regulating the practice of dentistry in Louisiana. See La.R.S. 36:3(1), 251, 259(E)(2), 803(A); La.R.S. 37:753. LSBD decisions are considered administrative adjudications under the Administrative Procedure Act, which become final judgments if not appealed within thirty days after mailing of notice of the decision. La.R.S. 37:779(D), 786; La.R.S. 49:964; see also State Board of Certified Public Accountants of Louisiana v. Donnelly, 96-822 (La.App. 5th Cir. 01/28/97), 688 So.2d 127, writ denied, 97-0969 (La. 05/30/97), 694 So.2d 247. Moreover, LSBD is given specific statutory power to levy fines, costs and expenses and charge legal interest in and on any decision it renders in La.R.S. 37:780B(2). Undoubtedly, these provisions give LSBD the general authority to enforce the monetary terms of its final administrative adjudications.
The Department of Health and Hospitals, a body corporate with the power to sue and be sued, is established pursuant to La.R.S. 36:251.
Nor is Chapter 9 silent on the procedural options available to LSBD for the enforcement of the provisions governing the regulation of the practice of dentistry. For example, La.R.S. 37:781(B) gives LSBD the particular authority to enforce subpoena compliance by seeking a court order in the pertinent district court. Such a directive obviously includes LSBD's standing to file the necessary pleadings to enforce the subpoena power of LSBD set forth in La.R.S. 37:781. Moreover, La.R.S. 37:760(9) and (11), respectively, give LSBD the power to "[E]xecute, on a case-by-case basis, any affidavit, petition, or subpoena necessary to the issuance of any injunction or other legal process. . . ." and the power to hire legal counsel to carry out the provisions of Chapter 9. These provisions plainly give LSBD the specific authority, through counsel, to petition for an injunction in district court which is itself an ordinary civil action. We read the separate use of the very general phrase "other legal process" as an intent to grant LSBD comprehensive authority to utilize other legal avenues available to it. Certainly, the presidential authority to execute a petition necessary to other legal process is broad enough to encompass the filing of a petition in district court, via counsel, to enforce the monetary sanctions of an adjudicatory decision of LSBD.
Reading these statutory provisions in pari materia, we find that the legislative authority given to LSBD to enforce the provisions of Chapter 9 includes LSBD's standing to file suit in district court to enforce monetary sanctions. Accordingly, we discern no error in the trial court rejection of Baker's exception of no right of action.
Summary Judgment
Neither do we find merit to Baker's remaining arguments regarding the propriety of the court's ruling on summary judgment.
A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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; Louisiana Health Services and Indem. Co. v. Brown Builders, Inc., 32,575 (La.App. 2d Cir. 12/08/99), 747 So.2d 708.
The summary judgment procedure is favored to secure the just, speedy and inexpensive determination of all except certain disallowed actions. La.C.C.P. art. 966A(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. And, as consistently noted in La.C.C.P. art. 967, the opposing party cannot rest on the mere allegations or denials of his pleadings but must present evidence which will establish that material facts are still at issue. Louisiana Health Services, supra.
The record before us reveals, and Baker admits in brief, that he failed to answer LSBD's request for admissions of fact. The law is clear that admissions may be used to establish either uncontradicted facts or contradicted issues which constitute the crux of the matter in litigation. Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La. 1976); Security Nat. Trust v. Kalmback, 613 So.2d 664 (La.App. 2d Cir. 1993); Vardaman v. Baker Center, Inc., 96-2611 (La.App. 1st Cir. 03/13/98), 711 So.2d 727. Moreover, courts have given full effect to La.C.C.P. arts. 1467 and 1468, which provide that failure to respond to requests for admission results in the matter being deemed admitted. Succession of Rock, supra; Larkin v. First of Georgia Underwriters, 466 So.2d 655 (La.App. 5th Cir. 1985); Bellina v. Lazzara, 576 So.2d 1221 (La.App. 5th Cir. 1991); Villescas v. T. J. Ward General Contractors, Inc., 504 So.2d 641 (La.App. 4th Cir. 1987); Remondet v. Reserve Nat. Ins. Co., 433 So.2d 792 (La.App. 5th Cir. 1983), writ denied, 441 So.2d 216 (La. 1983). Pursuant to this jurisprudence, Baker's failure to respond to LSBD's request for admissions resulted in the admission of even the key facts contained therein. These admissions were, therefore, facts of record which the courts must recognize. Succession of Rock, supra.
We also reject Baker's argument that LSBD's failure to attach documents to the affidavit of C. Barry Ogden submitted in support of LSBD's motion for summary judgment is a sufficient basis for reversing the summary judgment.
Indeed, La.C.C.P. art. 967 states that sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto. Nevertheless, the courts have held that a hypertechnical interpretation of this provision is unnecessary when the affiant refers to a document which is already in the record and which has already been served on the opposing party. There is no reason to invalidate a summary judgment that is otherwise appropriate merely because a duplicate of the document is not attached to, and again filed, with the affidavit. Bellina, supra; Fidelity Nat. Bank of Baton Rouge v. Coleman American Moving Services, Inc., 398 So.2d 556 (La.App. 1st Cir. 1980); Parish Motors, Inc. v. Reed, 305 So.2d 546 (La.App. 1st Cir. 1974). In this case, the record is clear that certified copies of both decisions of LSBD and the cost tabulation were attached to the petition filed by LSBD as Exhibits A, B and C. Ogden specifically incorporated Exhibit A into his affidavit by reference. Other than his statement regarding service of the calculation of costs, these three documents provide the sum of all information referred to by Ogden. The document reflecting service of the cost information and decision on reconsideration was likewise attached to the original petition. Accordingly, this document was correctly considered by the court pursuant to La.C.C.P. art. 966. Fidelity Nat. Bank of Baton Rouge, supra.
The facts established by this evidence are that LSBD rendered an administrative Decision on Reconsideration against Baker which cast him with $16,500 in fines and $18,293.32 in administrative costs and the payment of legal interest from thirty days following the Decision on Reconsideration. Baker was served with a copy of the Decision on Reconsideration and tabulation of administrative costs on March 16, 1999. Baker has made no payment of fines, costs or interest and has failed to appeal the judgment which is now final. Because his opposition to the motion for summary judgment raises only issues of law, he has failed to produce factual support sufficient to establish a genuine issue of material fact. We, therefore, affirm the trial court's summary judgment in favor of LSBD at Baker's costs.
AFFIRMED.
Dr. Baker's license has been revoked. He is not practicing dentistry. If he applies for reinstatement, the LSBD can collect its fines.