Opinion
No. 2009 CA 0806.
October 27, 2009.
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE EAST BATON ROUGE STATE OF LOUISIANA DOCKET NO. 565,717 HONORABLE TIMOTHY KELLEY, JUDGE PRESIDING.
Peter J. Losavio, Jr., Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant David L. Foster.
Neal R. Elliott, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Louisiana Department of Health and Hospitals.
BEFORE: DOWNING, GAIDRY AND McCLENDON, JJ.
In this matter, a district court judgment was appealed, which denied Medicaid long term care (LTC) benefits. For the following reasons, we vacate the judgment and remand.
David L. Foster entered a long term nursing facility on September 23, 2002. His wife, Cleolice Foster, applied for Medicaid LTC benefits on behalf of her institutionalized husband in an application dated December 16, 2003. Mr. Foster received notice in January 2004 that the application for Medicaid coverage was denied due to excessive resources available to him. The Louisiana Department of Health and Hospitals (DHH) denied the benefits because Mrs. Foster purchased an annuity for $105,000 prior to the application, which DHH considered a transfer of resources for less than fair market value.
Mr. Foster appealed DHH's denial of benefits, and a hearing was held before an administrative law judge on March 31, 2004. On May 12, 2004, the Bureau of Appeals issued a decision affirming DHH's determination that Mr. Foster was ineligible for LTC Medicaid benefits due to resources in excess of the program's guidelines.
On June 8, 2004, Mr. Foster filed a petition for judicial review of the administrative agency's decision in the Nineteenth Judicial District Court. Following a hearing on January 9, 2006, the court remanded the matter to the administrative law judge for rehearing. A rehearing before the administrative law judge was held, and by a decision dated March 6, 2008, Mr. Foster was again denied Medicaid LTC benefits based on resources in excess of the program's guidelines.
The administrative decision was again appealed to the Nineteenth Judicial District Court. On November 3, 2008, a hearing on appeal was held, and the district court affirmed the administrative law judge's decision upholding DHH's denial of Mr. Foster's application for Medicaid LTC benefits based on excessive resources. This appeal followed.
It is undisputed by the parties that Mr. Foster died. Further, the district court recognized that Mr. Foster was deceased in its November 2008 hearing on appeal. Thus, the problem herein is the lack of a motion to substitute a party plaintiff.
The appellate brief filed on behalf of Mr. Foster asserts that he died in July 2005.
Upon the death of a litigant, a proper party plaintiff must be substituted to allow the action to continue. LSA-C.C.P. art. 801; Manuel v. New York Life Ins. Annuity Corp., 01-735 (La.App. 5 Cir. 11/27/01), 803 So.2d 210, 211. A judgment rendered for or against a deceased party is an absolute nullity. Rainey v. Entergy Gulf States, Inc., 01-2414 (La.App. 1 Cir. 6/25/04), 885 So.2d 1193, 1197, writs denied, 04-1878, 1883, and 1884 (La. 11/15/04), 887 So.2d 478 and 479.
Therefore, we conclude that the district court judgment is null. The trial court is the appropriate forum to receive evidence and to address any potential issues concerning the status of the party plaintiff and whether the action survives in his favor. See Manuel, 01-735, 803 So.2d at 212; Guifco Finance of Livingston, Inc. v. Lee, 224 So.2d 524, 525 (La.App. 1 Cir. 1969). Accordingly, the judgment is vacated and the matter remanded to the administrative law judge for further proceedings. Costs of this appeal in the amount of $1,600.32 shall be divided equally between the parties.