author: EMAS, J.

text:
    Arlene PECORA, Appellant, v. Bret BERLIN, Signature Gardens, Ltd., a Florida limited partnership, Deux Michel, Inc., a Florida corporation, Signature Grand, Ltd., a Florida limited partnership, and Grand Partners, Inc., a Florida corporation, Appellees.
    No. 3D10-2983.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing and Rehearing En Banc Denied June 9, 2011.
    Kirschbaum, Birnbaum, Lippman & Gregoire, and Nancy W. Gregoire, Fort Lauderdale; Katzman, Wasserman, Bern-nardini & Rubinstein and Steven M. Katz-man and Craig A. Rubinstein, Boca Raton, for appellant.
    Waldman, Trigoboff, Hildebrandt, Marx & Calnan, and Glenn J. Waldman, and William E. Calnan, Weston, for appellees.
    Before WELLS, SALTER and EMAS JJ.
   EMAS, J.

Arlene Pécora appeals from a final summary judgment determining that she was not entitled to exercise a right of first refusal in the sale, by a court-appointed receiver, of Signature Grand, a catering facility located in Broward County. We affirm, holding that, given the nature of the sale, and the express language of the agreement creating the right of first refusal, the trial court was correct in granting summary judgment.

I. BACKGROUND

Jerome C. Berlin (“Mr.Berlin”) and Michael Pécora (“Mr.Pecora”) each owned fifty percent of the shares of Deux Michel, Inc., the corporate general partner of Signature Gardens, Ltd. (“Signature Gardens”), and fifty percent of the shares of Grand Partners, Inc., the corporate general partner of Signature Grand, Ltd. (“Signature Grand”). Mr. Berlin and Mr. Pé-cora were also limited partners in both Signature Grand, Ltd. and Signature Gardens, Ltd. (collectively the “Signature Entities”). When both partners died in 2003, the Berlin Estate became owner of his fifty percent interest in the Signature Entities, and Arlene Pécora (“Mrs. Pécora”), as the surviving spouse of Mr. Pécora, became the owner of his fifty percent interest. In 2003, the personal representative for the Berlin Estate commenced an adversary proceeding seeking, inter alia, appointment of a receiver for, and dissolution of, the Signature Entities. Temporary receivers were in control of the Signature Entities since shortly after the deaths of Mr. Berlin and Mr. Pécora.

a. Appointment of a Receiver

In 2008, the Berlin Estate filed a motion for appointment of a single overall receiver for the Signature Entities, pending further proceedings in the adversary dissolution action. Following an evidentiary hearing in January 2009, the trial court appointed John Kozyak, Esq., as receiver for the Signature Entities. In doing so, the trial court made specific findings in a nineteen-page order, concluding that there existed a deadlock in the Signature Entities’ ownership and day-to-day management and that, without the appointment of a single receiver for the Signature Entities, there was imminent danger of damage to the businesses.

The appointment order gave the receiver

full authority to take such actions as may be necessary on behalf of the Signature entities pursuant to this Court’s order. The receiver shall maintain, where appropriate, the normal course of business of the entities, including entering into contracts; signing leases; purchasing goods; retaining, hiring, and firing staff and employees; and negotiating with companies and individuals whose relationships affect assets or the enterprise of the Receiver.
The Receiver shall further have the full authority ... to operate, consolidate, merge, sell, abandon, or otherwise dispose of the Receivership assets; ... and such other acts as may be necessary to operate and protect the businesses. The Receiver shall operate the Receivership’s business in [his] or her best business judgment and act in the interest of those who own or have claims in the businesses. Where necessary, the Receiver may petition the Court for instructions on matters requiring judicial oversight and when the Receiver feels direction is needed about the propriety of certain contemplated acts.

(emphasis added).

Mrs. Pécora appealed the order appointing the receiver on jurisdictional grounds and this Court affirmed. Pecora v. Berlin, 23 So.3d 727 (Fla. 3d DCA 2009).

b. Signature Gardens

Pursuant to its authority, the receiver listed Signature Gardens, Ltd. (a catering facility located in Miami-Dade County) for sale and sought the trial court’s approval of the listing agreement. Mrs. Pécora objected to the listing agreement because it did not provide for a right of first refusal, a right which she claimed she was entitled to under the Signature Gardens Distribution Agreement.

Following a hearing at which the receiver testified that a right of first refusal would have a chilling effect on the listing and sale of the property, the trial court determined that Mrs. Pécora did not have a right of first refusal under the circumstances and approved the listing agreement and, ultimately, the sale of the Signature Gardens, Ltd. catering facility. That property was subsequently sold. Mrs. Pé-cora did not appeal the trial court’s determination, the order approving the listing agreement or the order approving the sale.

c. Signature Grand

Simultaneous with the marketing and sale of the Signature Gardens property, the trial court set a final hearing on the adversary action for dissolution of the Signature Entities. Soon thereafter, the parties agreed that the Signature Entities should be dissolved, and an order was entered which provided in pertinent part:

The parties do not oppose a dissolution and a winding up of the business affairs of ... the Signature entities. The receiver for the Signature entities, John Kozyak, Esq., shall continue to exercise the authority and powers previously vested in him as the court-appointed receiver, unless and until further order from this Court. Notwithstanding her lack of opposition to this motion, Arlene Pécora reserves and does not waive her objections to venue and jurisdiction,

(emphasis added).

The receiver initiated efforts to sell the Signature Grand catering facility and property located in Broward County. As with Signature Gardens, Mrs. Pécora maintained that she had a right of first refusal on any sale of Signature Grand assets pursuant to the terms of the Grand Partners, Inc. Agreement for Distribution (“Distribution Agreement”). Mr. Berlin and Mr. Pécora created this Distribution Agreement to establish a procedure by which the corporation would operate in the event of the death of one of the two partners, expressing their intent with the following language:

WHEREAS, Berlin and Pécora believe that it is in their best interests and that of the Corporation to make provision for the smooth and efficient operation of the Corporation in the event of death of either Berlin or Pécora (upon the death of Berlin or Pécora such decedent is hereinafter referred to as a “Decedent”)....

The Distribution Agreement thereafter made provisions for the transition and management of the day-to-day operations, as well as the sale of the corporation and its assets. The Distribution Agreement speaks in terms of a “Decedent” (the partner who dies) and a “Survivor” (the partner who survives).

The Distribution Agreement provides that in the event of the death of either Mr. Berlin or Mr. Pécora

the Survivor shall be obligated to market the Corporation’s assets and/or shares and the assets, or partnership interests, of the Partnership during the ten (10) year period following the death of either of them. In the event the Survivor has failed to consummate a sale of the Corporation and the Partnership within three (3) years of the date of death of a Decedent, the Personal Representative is hereby authorized to seek and procure a buyer for the assets and/or shares of the Corporation and Partnership giving the Survivor the right of first refusal on any offer received for the Decedent’s interest in the Corporation. In the event that a buyer is procured by the Survivor, the Personal Representative shall have a right of first refusal with respect to such offer,

(emphasis added).

The receiver, on behalf of the Signature Entities, moved for summary judgment, requesting a determination by the trial court that Mrs. Pécora did not have a right of first refusal on a sale of the Signature Grand facility where the receiver was responsible for listing the property and procuring a buyer. At the conclusion of the hearing, the trial court entered its order of summary judgment, ruling, inter alia: that the right of Erst refusal under the Distribution Agreement did not apply to a sale procured by the receiver; that Mrs. Pécora had elected to proceed with the sale of assets through a dissolution and ■winding up of the Signature Entities, rather than through the sales process set forth in the Distribution Agreement; and that, by failing to appeal the trial court’s order Ending no right of first refusal in the sale of Signature Gardens, Mrs. Pécora waived, or was estopped from asserting, her right of first refusal in the sale of Signature Grand. We review the court’s ruling on a motion for summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

II. ISSUE PRESENTED

The issue presented is whether the right of first refusal, encompassed within the Distribution Agreement, applies to a court-supervised sale procured by a court-appointed receiver, pursuant to a statutory dissolution of the Signature Entities. We hold that, under the facts of this case, the trial court was correct in its determination that the right of first refusal did not apply to a court-supervised sale procured by a court-appointed receiver in a statutory dissolution of the Signature Entities.

III. DISCUSSION

It appears that this question is one of first impression in Florida. Neither the parties nor this Court could find a Florida case directly addressing this specific issue. Decisions from other jurisdictions have considered the right of first refusal in similar circumstances, although there appears to be no case directly on point from any other state court.

The cases from other jurisdictions which do provide guidance have focused on two factors: the voluntary or involuntary nature of the sale, and the express language of the agreement creating the right of first refusal.

In Huntington National Bank v. Cornelius, 80 A.D.3d 245, 914 N.Y.S.2d 327 (N.Y.App.Div.2010), New York’s Third Appellate Division determined that a right of first refusal was generally not triggered in the context of a foreclosure sale. Krieger purchased from Cornelius a one-half interest in an historic home and the two held the property as joint tenants. Id. at 328. As part of the transaction, the parties agreed that “should either party purchase the entire property and within twenty years thereafter offer it for sale, the other party has the option to purchase the property for $800,000 ...” Id. Cornelius ultimately purchased Krieger’s share of the property and later obtained a mortgage on the property. Thereafter, Cornelius failed to make payments and the mortgagee commenced a foreclosure action. Id. at 329. Krieger sought a declaration that his right of first refusal was superior to the mortgage and could be exercised at the foreclosure sale.

The Third Appellate Division looked to the language of the agreement, and determined that the right of first refusal was not applicable because Cornelius was not the person who offered the property for sale. Id. at 330. Rather the referee, on behalf of the court, was the seller for purposes of the foreclosure action. The court also determined that “the word ‘offer’, as used here, was intended to cover a conscious and voluntary choice by the owner to make the property available for sale. No such choice exists here, however, as foreclosure is an involuntary process resulting in a forced sale.” Id.

In Tadros v. Middlebury Medical Center, Inc., 263 Conn. 235, 820 A.2d 230 (2003), the Connecticut Supreme Court held that a right of first refusal, reserved to the grantor in a contract for the sale of realty, did not apply in the context of a foreclosure sale.

The court first discussed the right of first refusal:

A right of first refusal is known more technically as a preemptive option, as a right of preemption, or simply as a preemption. A right of pre-emption is a right to buy before or ahead of others; thus a pre-emptive right contract is an agreement containing all the essential elements of a contract, the provisions of which give to the prospective purchaser the right to buy upon specified terms, but, and this is the important point, only if the seller decides to sell.
It does not give the pre-emptioner the power to compel an unwilling owner to sell, and therefore is distinguishable from an ordinary option.
Thus, the purpose of a right of first refusal is not to allow the holder to compel the property owner to sell the property at a designated price, as may be the case with the existence of an option.... Rather, the purpose is to allow the holder of the right to be notified when the owner intends to sell, or has accepted an offer, which, in most cases, will be presumptively the fair market value of the property, and to allow the holder to purchase the property under identical terms.

Id. at 234-35.

The Connecticut Supreme Court then looked to the language of the contract creating the right, and concluded that the right of first refusal would be triggered only if (1) the grantees “form the intention” of selling the property, and (2) the grantees accept a bona fide offer to purchase the property. Id. at 235. The court determined that the right of first refusal was not triggered because:

1. The court-appointed committee, and not the grantee, was the seller of the property.
2. Because the sale was pursuant to a foreclosure, the sale was not voluntary, and the grantor had no intention to sell the property.
3. The committee did not accept a bona fide written offer to purchase the property; rather the property was to be sold in accordance with a court order to conduct a foreclosure sale.

Id.

In the case of In re Rigby’s Estate, 62 Wyo. 401, 167 P.2d 964 (1946), Rigby died intestate and the trial court appointed an administrator for the estate. The administrator obtained an appraisal of the estate’s real property and the court authorized the administrator to sell the property of the estate at a public or private sale to pay the debts and the expenses of administration and to distribute the remaining proceeds to the heirs. Id. at 965. One of the properties was subject to a lease. By its terms, the lease granted the lessees “the first right option and privilege of purchasing said lands, and any sale must be made subject to the terms of the above described lease.” Id. The lease further provided that “the lessees were to have the right of first refusal ‘on such terms as first party (Rigby) shall then demand for the purchase price.’ ” Id. at 968.

The administrator conducted a public sale of the property and a third party was the successful bidder. The lessees sought a declaration by the court that the sale triggered their right of first refusal and that they were willing to purchase the property by matching the high bid offered at the public sale. Id. at 966. The trial court agreed that the lessees had a right of first refusal and ordered that the property be sold to the lessees. The Wyoming Supreme Court reversed, observing:

The administrator is vested with no title to the real estate. His possession is for the purposes of administration. His authority to sell is not general, but special and limited, and can be exercised only for the purposes mentioned in the statute. He is not an agent of the heirs; does not derive his powers from them, and is not subject to their control. His possession of their property and sale thereof without their consent is in a sense hostile to their interests.
As it is clear that the administrator in selling the land for the purposes stated in the order of sale was not acting as the agent or with the consent of Rigby or his heirs, we must hold that the sale was not the voluntary sale at which Rigby intended to give the lessees the right of first refusal. It follows that the lessees had at the sale no preference over other bidders.

Id. at 968, 969 (citations omitted).

There are other cases which also analyze the voluntary or involuntary nature of the sale, together with the language of the agreement or other document creating the right, in determining whether an existing right of first refusal is triggered. See, e.g., Royal Oldsmobile Co. v. Heisler Props. L.L.C., Case No. 10-CA-152, 58 So.3d 483 (La.App. 5th Cir.2010) (holding United States Marshal’s involuntary bankruptcy sale of property did not trigger right of first refusal); Central Exec. Comm. of ODWU, Inc., v. Carbon Cnty. Tax Claim Bureau, 892 A.2d 868 (Pa.Commw.Ct.2006) (holding sale of property by county taxing authority to pay delinquent taxes did not trigger right of first refusal provision contained in deed); Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346 (Tex. App.2004) (holding right of first refusal only applied to a voluntary sale and taking of property by condemnation is involuntary; therefore, right of first refusal not triggered); Pearson v. Schubach, 52 Wash. App. 716, 763 P.2d 834 (1988) (holding court-ordered sale of property to satisfy judgment against lessor was involuntary sale and did not trigger lessee’s right of first refusal since agreement required that lessor be a “willing” seller of the property); Henderson v. Millis, 373 N.W.2d 497 (Iowa 1985) (holding given language in agreement, right of first refusal could not be exercised in context of a foreclosure sale); Draper v. Gochman, 400 S.W.2d 545 (Tex.1966) (same).

Applying the reasoning of the above cases to the instant case, we conclude that the receiver’s actions in procuring a sale of the corporation’s assets, pursuant to a receivership in a dissolution action, is more akin to a judicial or involuntary sale than it is to a voluntary sale by one of the owners of the property. This characterization is important, because a right of first refusal has been described as

a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. The right of first refusal ripens into an option once an owner manifests a willingness to accept a good faith offer.

Old Port Cove Holdings, Inc., v. Old Port Cove Condo. Ass’n One, 986 So.2d 1279, 1285 (Fla.2008) (citing Pearson v. Fulton, 497 So.2d 898, 900 (Fla. 2d DCA 1986)) (emphasis added).

Thus the right of first refusal generally presumes a voluntary sale by an owner who manifests a willingness to accept an offer from a third party. By contrast, we are confronted here with a sale that is not truly voluntary; perhaps more significantly, it is not a sale in which the buyer is procured by the owner. Rather, it is a sale procured by a court-appointed receiver and is made under the supervision and authority of, and under terms prescribed by, the trial court.

As discussed earlier, the express purpose of the Distribution Agreement was “to make provision for the smooth and efficient operation of the Corporation in the event of death of either [Mr.] Berlin or [Mr.] Pécora ....’’ (emphasis added). The Distribution Agreement and, more specifically, the right of first refusal, did not envision the tragic situation which occurred here: both partners died on the same day, within hours of each other, resulting in an eventual deadlock over the management of the corporate affairs, a dissolution action, and an appointment of a receiver to manage and sell the corporate assets. Rather, the right of first refusal contemplated by its terms that:

1. There would be a deceased partner and a surviving partner.
2. Upon the deceased partner’s death, the surviving partner would be obligated to market and attempt to sell, the assets of the corporation.
3. If the surviving partner did not sell the corporation and partnership within three years, the personal representative of the deceased partner was authorized to procure a buyer.
4. In the event the deceased partner’s personal representative procured a buyer, the surviving partner would have a right of first refusal on any offer received for the deceased partner’s interest in the corporation.
5. In the event the surviving partner procured a buyer, the deceased partner’s personal representative would have a right of first refusal on any offer received for the deceased partner’s interest in the corporation.

Where, as here, it is the court-appointed receiver who procures a buyer, neither Mr. Berlin nor Mr. Pécora (nor their estates, heirs or personal representatives) is the “procuring” party as required by the terms of the Distribution Agreement.

IV. CONCLUSION

The plain language of the Distribution Agreement compels a conclusion that the right of first refusal does not apply in a dissolution action where the court-appointed receiver is procuring the sale of the corporate assets. The receiver, not the survivor or the personal representative, is the procuring party, and the receiver’s actions are taken under the supervision, and with the approval, of the trial court. Had the parties to the Distribution Agreement intended for the right of first refusal to apply in the context of a corporate dissolution, or where a third party was procuring a buyer, the Distribution Agreement could have so provided. See, e.g., Roof Depot, Inc. v. Ohman, 638 N.W.2d 782 (Minn.Ct. App.2002) (holding transfer restriction granted right of first refusal in event of voluntary or involuntary transfer of stock); Guice v. Sentinel Tech., Inc., 294 Ill. App.3d 97, 228 Ill.Dec. 483, 689 N.E.2d 355 (1997) (same).

We conclude that, under these circumstances and in light of the language of the Distribution Agreement, the trial court correctly determined that Mrs. Pécora could not exercise a right of first refusal. The trial court properly granted summary judgment.

Affirmed.

      . Although this appeal does not involve the sale of the Signature Gardens property, some background is necessary to place the relevant events in their proper context.

      . The Signature Gardens Distribution Agreement and the Signature Grand Distribution Agreement contain the identical provision regarding the right of first refusal. The right of first refusal provision is set forth in the discussion of Signature Grand, infra.

      . We recognize that there is a minority position which holds that the right of first refusal can be exercised in the context of a judicial or involuntary sale. See, e.g., Cities Serv. Oil Co. v. Estes, 208 Va. 44, 155 S.E.2d 59 (1967); Price v. Town of Rustan, 171 La. 985, 132 So. 653 (1931). However, we conclude that the more well-reasoned position is that adopted by the majority of jurisdictions addressing the issue.

      . If the Distribution Agreement were construed to permit the exercise of a right of first refusal to any offer procured by a receiver, both parties would be entitled to assert this right. This would beg the question: Who would have the "first” right of first refusal?


source: Caselaw Access Project

author: CLARK, Justice.

license: Public Domain

text:
    John E. LAND, III, et al. v. Dennis J. VIDRINE.
    No. 2010-C-1342.
    Supreme Court of Louisiana.
    March 15, 2011.

      Stephen Charles Myers, Lafayette, Keith Dunn Jones, Baton Rouge, for Applicant.
    Allen & Gooch, David Jude Ayo, Joel Edward Gooch, Lafayette, for Respondent.
   CLARK, Justice.

hWe granted certiorari to determine whether an adverse venue ruling can be reviewed upon appeal of the final judgment or whether the sole procedure by which to object is a supervisory writ. Additionally, we granted the matter to decide if a transferee court must make its own venue determination when ruling on an exception of peremption. For the reasons that follow, we find (1) the only mechanism by which to challenge an adverse venue ruling is a supervisory writ and (2) a trial court considering an exception of peremption must make an independent venue ruling for the limited purpose of deciding the exception of peremption.

FACTS AND PROCEDURAL HISTORY

John Edgar Land and Stella Karns Land both died in March 2007. The Lands were residents of East Baton Rouge Parish and were the parents of five children: John E. Land, Jennie Caroline Land, Susan Land Orellana, Gary James Land, and Polly Estelle Land Glover. John, Jennie, and Susan, (hereinafter, “the plaintiffs”), were excluded from their parents’ wills while Gary and Polly were named legatees. After the death of her parents, Polly approached the decedents’ attorney, Dennis Vidrine, (hereinafter, “the defendant”), and indicated that she and Gary thought the will was unfair and that they desired to share the succession assets equally with their siblings. |2The five children met with the defendant in East Baton Rouge Parish on April 12, 2007, where the defendant explained that the best option to achieve their goal was to proceed intestate. Accordingly, the defendant prepared and the five children executed the petition for the administration of an intestate succession, and it was filed in East Baton Rouge Parish.

In August 2007, Polly and Gary decided they no longer wished to proceed intestate. Thus, the defendant filed a petition to probate the wills of John and Stella Land on August 22, 2007 in East Baton Rouge Parish. On April 11, 2008, the plaintiffs filed a legal malpractice suit in the Nineteenth Judicial District Court in East Baton Rouge Parish, claiming the defendant took a position directly adverse to them after establishing an attorney-client relationship.

The defendant filed a declinatory exception of improper venue, contending Lafayette Parish was the proper venue insofar as Lafayette was the parish of his domicile, the locale of his legal office, and the location where the relevant legal documents were drafted. The East Baton Rouge Parish trial court granted the defendant’s exception of improper venue and transferred the ease to the Fifteenth Judicial District Court in Lafayette Parish on November 24, 2008.

Once the matter was transferred to Lafayette Parish, the defendant filed an exception of peremption. Asserting the alleged malpractice occurred on August 22, 2007 when the petition to probate was filed, the defendant argued the plaintiffs had not filed suit in a court of proper jurisdiction and venue within one year pursuant to the provisions of La.R.S. 915605(A). The Lafayette Parish trial court reasoned it was 13“ obligated to follow the [venue] ruling made in East Baton Rouge District Court as the ‘law of the case.’ ” Because the East Baton Rouge Parish trial court found venue was improper in East Baton Rouge Parish and the Lafayette Parish trial court believed it was unable to review that ruling, the Lafayette Parish trial court concluded the filing in Lafayette Parish was untimely on its face. Because the plaintiffs failed to show why the claim was timely, the Lafayette Parish trial court found the cause of action was barred by peremption and granted the defendant’s exception.

The plaintiffs appealed to the Louisiana Third Circuit Court of Appeal, arguing the East Baton Rouge Parish trial court erred in granting the defendant’s exception of improper venue and in failing to recognize East Baton Rouge Parish as a parish of proper venue pursuant to La.Code Civ.P. art. 74. Additionally, the plaintiffs challenged the Lafayette Parish trial court’s judgment granting the defendant’s exception of peremption. The court of appeal, relying on M & L Indus., L.L.C. v. Hailey, 05-940 (La.App. 3 Cir. 3/1/06), 923 So.2d 869, found the plaintiffs, by not applying for supervisory writs to the Louisiana First Circuit Court of Appeal on the venue ruling, failed to timely seek review of the issue and essentially waived any objection they had to the ruling. As such, the court of appeal found the issue was 14outside its scope of review. Regarding the peremption ruling, the court of appeal found the alleged act of malpractice occurred on August 22, 2007. The plaintiffs’ claim for malpractice was not filed in a parish of proper venue until November 24, 2008, more than a year from the alleged act of malpractice. Finding the plaintiffs did not meet their burden of proving that the claim was not perempted, the court of appeal affirmed the ruling of the Lafayette Parish trial court. John E. Land, III v. Dennis Vidrine, 09-1418 (La.App. 3 Cir. 4/7/10), 30 So.3d 1188.

We granted certiorari to determine whether the plaintiffs waived their right to seek review of a venue ruling when they did not seek supervisory review via a writ application. Additionally, we granted cer-tiorari to address the ability of the Lafayette Parish trial judge (as judge in the transferee court) to consider venue for purposes of peremption. John E. Land, III v. Dennis Vidrine, 10-1342 (La.11/12/10), 49 So.3d 875.

APPLICABLE LAW

In Louisiana Municipal Association v. State, 04-0227, pp. 35-36 (La.1/19/05), 893 So.2d 809, 886-37, this court set forth the following standard of review:

Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. Cleco Evangeline v. Louisiana Tax Com’n, 2001-2162, p. 8 (La.4/3/02), 813 So.2d 351, 353. After our review, we “render judgment on the record, without deference to the legal conclusions of the tribunals below. This court is the ultimate arbiter of the meaning of the laws of this state.” Id.
“Legislation is the solemn expression of legislative will, and therefore, the interpretation of a law involves primarily the search for the legislature’s intent.” La.Code Civ. art. 2; Detillier v. Kenner Regional Medical Center, 2003-3259, p. 3 (La.7/6/04), 877 So.2d 100, 103; Grant v. Grace, 2003-2021, p. 4 (La.4/14/04), 870 So.2d 1011, 1014; Sultana Corp. v. Jewelers Mut. Ins. Co., 2003-0360, p. 3 (La.12/3/03), 860 So.2d 1112, 1115. The interpretation of a statute starts with the language of the statute itself. Grant, 2003-2021 p. 4, 870 So.2d at 1014. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. La.Code Civ. art. 9; Detillier, 2003-3259 p. 4, 877 So.2d at 103.

| ¿DISCUSSION

In addressing the proper procedure for a party to seek review of a venue ruling, we note, as an initial observation, that a venue ruling is an interlocutory judgment. La.Code Civ. P. art. 1841; Savoie v. Rubin, 01-3275, p. 3 (La.6/21/02), 820 So.2d 486, 488. La.Code Civ.P. art. 2083 sets forth the law regarding the ability to appeal an interlocutory judgment:

A. 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.
B. In reviewing a judgment reformed in accordance with a remittitur or addi-tur, the court shall consider the reasonableness of the underlying jury verdict.
C. An interlocutory judgment is ap-pealable only when expressly provided by law.

(Emphasis added).

The plaintiffs in this case argue the venue ruling, as an interlocutory judgment, can be considered on appeal of the final judgment, while the defendant contends the plaintiffs waived their objection to the venue ruling by failing to seek a supervisory writ. The plain language of La.Code Civ.P. art. 2083 is clear that interlocutory judgments are appealable only in certain enumerated instances. However, we concede there is ambiguity as to whether the article is addressing the ability to immediately appeal interlocutory judgments or the ability to appeal such judgments 16upon review of the final judgment. With ambiguity present, we must consider the legislative intent.

We acknowledge that the 2005 amendment to La.Code Civ.P. art. 2083 was enacted to ameliorate the confusion with which attorneys were confronted when a trial court issued an adverse interlocutory ruling. Prior to the amendment, parties were permitted to file a supervisory writ and/or an interlocutory appeal; the latter option was conditioned on a party’s ability to show irreparable injury, which proved to be a vague standard. In an effort to eradicate lengthy delays of trials while the issues were being decided on appeal, the legislature specified that a supervisory writ was the proper mechanism to seek review of an adverse interlocutory ruling. Efficiency and judicial economy were the primary goals of the legislature in enacting the 2005 amendment. La.Code Civ.P. art. 2083, comment (c); Minutes, House Civil Law Committee, 2005 Reg. Sess., May 17, 2005, at 6-8.

Comment (a) to La.Code Civ.P art. 2083 offers two examples of legislation that provide for the appeal of interlocutory judgments: Code of Civil Procedure Articles 3612 and 592(A)(3)(b), which concern preliminary/final injunctions and certification/decertification of class action classes, respectively. Comment (a) also states: “Appellate review of all other interlocutory judgments should now be applied for pursuant to the appellate court’s supervisory authority set forth in Article 2201, the Uniform Rules, Courts of Appeal, and the Rules of the Supreme Court of Louisiana.” Comment (c) to La.Code Civ.P. art. 2083 states:

The 2005 amendment to Article 2083 was made for several reasons. First, it eliminates the uncertainty of selection between an interlocutory appeal and supervisory writ as the proper procedure when the 17overlapping and ill-defined irreparable injury standard is thought to be applicable to the trial court’s ruling. See Maraist and Lemmon, Vol. I, Louisiana Civil Law Treatise, § 14.17. Secondly, the procedures inherent in an interlocutory appeal often created unnecessary delay in the progress of a lawsuit at the trial court level. See Hamilton Medical Group v. Ochsner Health Plan, 550 So.2d 290, 292 (La. App. 3 Cir.1989). Finally, the amendment promotes uniformity and clarity in appellate practice in that there is now one delay period provided in Uniform Rules — Courts of Appeal § 4.3 for seeking appellate review of all interlocutory judgments except those for which an appeal is expressly provided, rather than multiple periods under the prior system when both a supervisory writ and an appeal were options.

After reviewing the comments and legislative history and remaining mindful that judicial efficiency and expediency were the motivating factors behind the amendment, we find that, with respect to venue rulings, which are threshold inquiries, litigants are required to seek review via supervisory writs. Failure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto. We note, however, that this holding is limited in nature and pertains only to a venue ruling, which is the only interlocutory judgment currently before us for consideration.

Choice of venue is a gateway consideration that is separate from the merits of the case and addresses only the initial inquiry of where to litigate. Absent allegations of bias or the operation of fo rum non conveniens, courts are presumed to administer equal justice wherever they are located. In LeBlanc v. Thomas, 2008-2869, p. 8 (La.10/20/09), 23 So.3d 241, 245, we stated:

This Court has determined that the Louisiana Civil Code of Procedure “articles governing venue are based on legislative considerations for allocating cases, according to the particular action and the particular parties, among the various parishes which have an interest in the action ...” Underwood v. Lane Memorial Hospital, 97-1997 (La.7/8/98), 714 So.2d 715, 716. This Court has recognized venue as a “convenience factor as opposed to a jurisdictional factor.” Id.

Thus, when a plaintiff does not object to the transfer of his case to another parish, it can be said he consented to the new location of the trial. To hold that a venue objection can be raised on final appeal (1) ignores the fact that venue, which | sis solely a matter of convenience, does not affect the ultimate determination of the merits and (2) creates a tactical scenario where a litigant who is not successful at trial can seek to retry the merits of the case when an otherwise valid judgment has already been rendered. To allow deferral of a venue challenge disregards the very purpose of venue rules.

To further illustrate the point, we analogize to La.Code Civ.P. arts. 44(C) and 928(A), which require a defendant to plead the declinatory exception of improper venue prior to filing an answer on penalty of the objection being deemed waived. These articles demonstrate that general venue objections can be waived and the primary consideration is timeliness. These codal provisions and our holding today reiterate our understanding that venue is an early determination that governs a trial’s location, not its result. We note that our holding is in line with each appellate court of our state that has ruled on the issue. Namely, the first, second, third, and fifth circuits have similarly held that a litigant must file a supervisory writ in order to receive review of an adverse venue ruling. See Alexander v. Palazzo, 2008-1541 (La.App. 1 Cir. 2/13/09), 5 So.3d 950; Danny Weaver Logging, Inc. v. Norwel Equipment Co., 33,793 (La.App. 2 Cir. 8/23/00), 766 So.2d 701; M & L Indus., L.L.C., 923 So.2d 869; and Farrar v. Certified Coatings Of California, Inc., 09-920 (La.App. 5 Cir. 3/23/10), 38 So.3d 940. Thus, we find the plaintiffs waived their right to challenge the East Baton Rouge Parish trial court’s ruling on venue.

Next, we consider the ability of the transferee court to consider the venue issue solely for the purposes of peremption. We note from the outset that the Lafayette Parish trial court erred in reasoning that it was precluded from considering the venue issue based on the “law of the case doctrine.” Under this doctrine, courts of appeal generally refuse to reconsider their own rulings of law on a subsequent appeal in the same case. Garrison v. St. Charles Gen. Hosp., 03-0423, p. 1 (La.4/25/03), 845 So.2d 1047, 1047 (per cu-riam). The doctrine does not apply in the context of a trial court ruling on interlocutory issues or a transferee court being asked to consider a ruling of the transferor court. Having found no merit to the trial court’s stated reason for failing to consider the venue issue, we now address whether La.R.S. 9:5605 allows or requires such consideration.

The plaintiffs contend La. R.S. 9:5605 requires the trial court considering the exception of peremption to make an independent ruling on venue. The defendant, however, avers this requirement would position the transferee court as an appellate court over the transferor court. For the reasons that follow, we agree with the plaintiffs. La. R.S. 9:5605 provides that no action for damages against attorneys “shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect....” The trial court that is tasked with determining whether the case is perempted must consider all the grounds for peremption, including whether the case was timely filed in a court of proper venue. As we previously stated, the “law of the case doctrine” is not applicable in the instant situation. In the absence of a legal barrier precluding | ^consideration of the issue, we find the East Baton Rouge Parish trial court’s venue ruling should have been merely presented as evidence in support of the defendant’s exception of peremption, not as a conclusion of law. The Lafayette Parish trial court is required to rule on venue only for purposes of deciding whether the cause of action is still viable; the determination, however, has no practical bearing on the actual choice of forum. In other words, the venue decision, when considered in the context of an exception of peremption, does not alter the location of the current and/or future proceedings of the case. If the Lafayette Parish trial court finds that venue was proper in East Baton Rouge Parish, then it is required to deny the defendant’s exception of peremption and proceed with the trial in Lafayette Parish. Alternatively, if the Lafayette Parish trial court finds that venue was improper in East Baton Rouge, then it is required to continue its analysis of whether the filing in Lafayette Parish was timely. If the case was not timely filed in Lafayette Parish, the exception of peremption must be granted and the case dismissed. Thus, the only venue ruling in this case that is subject to review by the Louisiana Third Circuit Court of Appeal is the venue finding that is incorporated into the peremption ruling by the Lafayette Parish trial court. This procedure ensures that the appellate courts are only considering judgments within their jurisdiction.

We note that our previous decision of Phillips v. Patterson Ins. Co., 97-2748 (La.1/9/98), 704 So.2d 246, 247 supports this holding. In that case, we stated, “... the trial court’s decision on venue was reviewable by the court of appeal and by this court on appeal after trial on the merits, at least for prescription purposes.”

DECREE

For the reasons stated herein, the case is remanded to the Fifteenth Judicial District Court in Lafayette Parish to determine whether, based on the record before | nit, East Baton Rouge was a parish of proper venue for purposes of La.R.S. 9:5605 only.

REMANDED.

      . La.R.S. 9:5605(A) provides: No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

      . La.Code Civ.P. art. 74 provides:
      An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. An action to enjoin the commission of an offense or quasi offense may be brought in the parish where the wrongful conduct occurred or may occur.
      As used herein, the words "offense or quasi offense" include a nuisance and a violation of Article 667 of the Civil Code.

      . Acts 2005, No. 205, § 1, which became effective on January 1, 2006, rewrote the article, which had previously provided:
      A. An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, from an interlocutory judgment which may cause irrepa-rabie injury, and from a judgment reformed in accordance with a remittitur or additur under Article 1814.
      B. In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.

      . La.Code Civ.P. art. 2201 provides, “Supervisory writs may be applied for and granted in accordance with the constitution and rules ol the supreme court and other courts exercising appellate jurisdiction.”

      . La.Code Civ.P. art. 44(C) provides: "Except as otherwise provided in this article or by other law, any objection to the venue, including one based on any article in this Chapter, is waived by the failure of the defendant to plead the declinatory exception timely as provided in Article 928.”

      . La.Code Civ.P. art. 928(A) provides:
      The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation of a default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.


text:
    CITY OF DeQUINCY v. Randy James HENRY.
    No. 2010-C-0070.
    Supreme Court of Louisiana.
    March 15, 2011.

      Law Office of Christopher R. Philipp, Christopher Richard Philipp, Lafayette, for Applicant.
    Broussard & Hart, LLC, J. Steven Broussard, Lake Charles, for Respondent.
   CLARK, Justice.

|, We granted this application to determine whether the courts below erred in deciding that an employer had approved in writing a compromise between an employee and a third-party, and that the employer was not entitled to a credit toward the employee’s future medical costs, all as described in Louisiana Revised Statutes 23:1102. For the reasons set forth below, we find that the issue of whether or not the City had given written approval of the settlement need not be resolved, but that the courts below did, in fact, err in ruling that the employer was not entitled to a credit toward future medical costs, and we, therefore, reverse.

FACTS and PROCEDURAL HISTORY

In November of 2000, while investigating an automobile accident, Officer Randy James Henry came into contact with a live electricity line owned by CLECO Utility Group, Inc. (“CLECO”) and suffered severe disabling injuries. Mr. Henry was employed as a police officer by the City of DeQuincy (“the City”) at the time of the accident.

Following the accident, the City, through the Louisiana Municipal Risk [¡¡Management Agency (“RMI”), began paying Mr. Henry workers’ compensation benefits. Mr. Henry subsequently filed a tort suit against CLECO, in which the City intervened in order to recover the benefits paid to and on behalf of Mr. Henry.

After years of litigation, Mr. Henry and CLECO agreed to mediate the matter. The City and RMI were informed of the impending mediation but declined to attend. Instead, the City, by email, agreed to waive one-third of its lien as attorney’s fees and verified to the mediator the exact amount of the lien at the time of the mediation.

On October 23, 2008, Mr. Henry and CLECO mediated the third-party suit and agreed to settle the claim for the sum of $4,350,000.00. On that day, Mr. Henry, his wife, their attorney, and the attorney for CLECO all signed a written document containing the terms of the settlement agreement.

Following the completion of the settlement, the City filed a motion to terminate Mr. Henry’s workers’ compensation benefits due to Mr. Henry’s failure to obtain the prior written approval of the City and its insurer as required by Section 23:1102(33). Mr. Henry, in return, moved to declare that the City had tacitly approved the settlement and that any future credit to the City from Mr. Henry’s settlement proceeds applied only to Mr. Henry’s future disability benefits, and not to the cost of his future medical treatment.

The hearing of the matter, held on December 1, 2008, consisted of the arguments of the attorneys and the introduction of exhibits. No witnesses testified. Separate from the proceeding, the attorneys for the City and CLECO agreed that CLECO would pay the City $321,045.25, representing the amount of the City’s lien less one-third for attorney’s fees, in return for the City’s dismissal of its intervention against CLECO and the City’s promise to not pursue against CLECO its reimbursement rights afforded by Section 23:1102(0(1).

laOn March 9, 2009, the workers’ compensation judge ruled that the City had given prior written approval for the settlement; that the City and/or RMI was paid in full for the full amount of the lien less one-third for attorney’s fees, reinstating Mr. Henry’s rights to future compensation; that the City was entitled to a credit for the balance of the settlement funds; but that the credit only applied to Mr. Henry’s future disability benefits and not to the cost of his future medical treatment.

On December 9, 2009, the court of appeal affirmed the ruling of the workers’ compensation judge. City of DeQuincy v. Henry, 09-636 (La.App. 3 Cir. 12/9/09), 25 So.3d 237. This Court granted the City’s writ on April 30, 2010. City of DeQuincy v. Henry, 2010-0070 (La.4/30/10), 34 So.3d 296.

DISCUSSION

Initially, we note that this issue is one of statutory interpretation. The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 11 (La.6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766. The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 2k Shreveport Bossier, 2000-1695 at 11, 808 So.2d at 302; Succession of Boyter, 99-0761 at 9, 756 So.2d at 1129. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Succession of Boyter, 99-0761 at 9, 756 So.2d at 1129.

DFurther, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360, p. 9 (La.12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671, 676 (La.1947); State v. Fontenot, 112 La. 628, 36 So. 630, 634 (La.1904). Finally, it is presumed that the legislature acts with full knowledge of well-settled principles of statutory construction. Sultana Corporation, 03-0360 at 9, 860 So.2d at 1119.

In addition to the above judicial principles which are guides to determine the intent of the legislature, the legislature has enacted rules for the construction of statutes in the provisions of the revised statutes. Louisiana Revised Statutes 1:3 provides:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.

With these rules in mind, we note that both courts below and both parties agree that Section 23:1102 is the controlling statute, although Mr. Henry asserts that IsSection 23:1102 should be read in para materia with a related statute, Section 2S:1103. As Mr. Henry admits in brief, by their very terms, Section 23:1102 applies IfiOnly to situations involving the settlement of a third-party tort claim, whether or not suit was filed, while Section 23:1103 applies to those cases which are actually tried to judgment. Section 23:1102 is applicable after “either the employee or his dependent or the employer or insurer brings suit against a third person” when “a compromise with such third person is made by the employee or his dependents.” Section 23:1103, on the other hand, applies “[i]n the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered.”

While we acknowledge that the courts of this state have applied the statutes inconsistently, sometimes applying Section 23:1102 to third-party claims which proceeded to judgment, and at other times applying Section 23:1103 to third-party claims which were settled, the plain language of the two statutes convinces us that the legislature intended, and the lower courts were correct in finding, that only Section 23:1102 applies in cases where, as here, an employer has intervened in an employee’s suit, and the suit was settled prior to judgment.

The City assigns two errors by the lower courts. The City’s first assignment of error is that those courts misinterpreted and incorrectly applied the written approval requirement imposed by Section 23:1102 when ruling that the City had given prior written approval of the settlement, so as to not forfeit Mr. Henry’s future workers’ compensation benefits. The City’s second assignment of error is that the lower courts committed legal error when they concluded that the City’s credit did not apply toward Mr. Henry’s future medical expenses.

Written Approval

17With regard to the City’s first assignment of error, we look again to the wording of the statute. Section 23:1102 reads, in pertinent part:

Employee or employer suits against third persons causing injury; notice of filing
A. (1) If ... the employee ... brings suit against a third person ..., he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.
B. If a compromise with such third person is made by the employee ..., the employer ... shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer ... receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee ..., at the time of or prior to such compromise.
If the employee or his dependent fails ... to obtain written approval of the compromise from the employer ... at the time of or prior to such compromise, the employee ... shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s ... right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer ... of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise;.... Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.

Section 23:1102 requires that any compromise be approved in writing either at the time of or prior to the compromise. In his oral reasons for judgment, the workers’ compensation judge stated:

Granted, the city was not present. It chose not to attend; however, introduced into evidence was a series of letters and emails to and from the R.M.I. attorney and parties who were at the mediation. The essence of this correspondence seems to be that the city was fully aware of the mediation and presented a demand that its lien be paid in full, minus the Ramount of a one-third attorney’s fees [sic]. And, accordingly, R.M.I. forwarded the exact amount of its lien, about 500,000 [sic] at the time, to the mediator. The mediator, a particularly well known and respected attorney in this area, managed to get R.M.I. precisely what it asked for, the entirety of the lien less attorney’s fees.
The statute requires written approval; however, it does not specify the precise language or format of the approval. When an employee [sic] informs a mediator in writing of his precise demand, right down to the very penny, and the mediator delivers every cent requested, it’s difficult to describe that scenario as anything short of, quote, prior written approval, as is allowed by the statute.

R. at 146.

As indicated by the court of appeal, factual findings in workers’ compensation matters are subject to the manifest error or clearly wrong standard of review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. In the instant matter, however, whether or not the workers’ compensation judge committed manifest error in determining that the City had given its prior written approval to the settlement is of no moment.

Section 23:1102(B) includes a “buy back” provision, which, when an employee fails to obtain his employer’s written approval of settlement as required by the statute, allows the employee to reserve his right to future compensation “upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise ...” La.Rev.Stat. § 23:1102(B). As found by the workers’ compensation judge and conceded by the City during argument, the City was paid back the full amount of its lien, less one-third attorney’s fees. Thus, Mr. Henry’s right to future compensation was reserved. The issue of whether or not the City had given written approval of the settlement, is therefore moot and need not be resolved.

Extent of Credit

1 flThe sole issue for discussion is whether the credit the employer receives (either by virtue of written approval or a “buyback”) extends to future medical benefits. Both lower courts determined that the question had been answered by an earlier court of appeal opinion, Breaux v. Dauterive Hospital Corporation, 02-1072 (La.App. 3 Cir. 2/5/03), 838 So.2d 109. The Breaux opinion cited an opinion by this Court, Brooks v. Chicola, 514 So.2d 7 (La.1987), for the proposition that “the workers’ compensation insurer is not entitled to a credit for future medical benefits, even when the amount, which the third-party tortfeasor paid in settlement, exceeds that sufficient to reimburse the compensation carrier.” Breaux, 02-1072 at 4-5, 838 So.2d at 112. Further, Breaux pointed out that “had the Louisiana Legislature wanted to include future medical benefits as part of compensation obligations for which a credit is due, presumably, it would have done so when it amended that statute ...” Breaux, 02-1072 at 5, 838 So.2d at 112.

The City argues first that both the Brooks and Breaux opinions involved the interpretation of Section 23:1103 rather than Section 23:1102. According to the City, Section 23:1103 concerns the apportionment of damages (awarded in a suit) between an employer and employee, while Section 23:1102 deals with the proceeds of a settlement or compromise as is the case here.

Next, the City argues that, in fact, the legislature did change the law when it amended Section 23:1102 in 1989 by changing the first sentence of paragraph B.

Mr. Henry argues in opposition that while the legislature clearly intended to change the law as it was interpreted in Brooks to apply to an employer’s reimbursement for past expenses, the legislature could have more clearly changed the law as it applied to future medical benefits, and the fact that it did not do so indicates that no change was intended.

|inWe find the City’s arguments to be correct. First, our decision in Brooks concerned the division of damages which were awarded in a judgment in a tort suit, pursuant to Section 23:1103, which, we have previously determined, applies to apportionment of damages between the employer and employee in suits against third parties, and not to the division of funds received following the compromise of a claim, which is detailed in Section 23:1102, and which we have, likewise, determined controls this matter.

Further, Brooks was authored in 1987. In 1989, as pointed out by the City, the legislature amended both Section 23:1102 and 23:1103. Acts 1989, No. 454, § 4 rewrote the first sentence of paragraph B, which formerly read: “If a compromise with such third person is made by the employee or his dependent, the employer or insurer shall be liable for compensation in excess of the amount recovered against such third person only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise,” to read: “If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise.” La.Rev.Stat. § 23:1102, “Historical Notes” (emphasis added). Equally as important, the amendment added a new fifth sentence to paragraph B, which reads: “Such reservation shall only apply after the employer or insurer receives a dollar for dollar ] n credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.” La.Rev.Stat. § 23:1102, “Historical Notes.”

According to the amended statute, an employer is now liable only for “any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs.” The “Chapter” referred to in the amended language is Chapter 10, Workers’ Compensation. The phrase “any benefits under this Chapter,” then, necessarily includes future medical benefits, which are included in “this Chapter,” Chapter 10, Workers’ Compensation. Further, the statute specifically mandates that employers receive a “dollar for dollar credit against thefull amount paid in compromise.” La.Rev.Stat. § 23:1102 (emphasis added). Again, the “full amount” paid in compromise would necessarily include any future medical benefits paid in compromise. Likewise, the amendment to Section 23:1103 added a new Paragraph B, which reads:

The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.

Contrary to Mr. Henry’s argument, these changes clearly evidence the intent of the legislature to require that employers and their insurers receive a credit for the entire amount of any compromise or settlement, or for the entire amount of a judgment, no matter how the damages have been itemized or classified.

Mr. Henry argued that such a determination would discourage employees from filing third-party suits. We disagree that our holding will discourage third-party suits, but we recognize that it will encourage employees to bargain for and settle for not 112much less than a full recovery. Mr. Henry also argues that employees would have to use their recovery for pain and suffering to pay for future medical costs. Again, if an employee receives in settlement not much less than a full recovery, there will be no need for the employee to expend his or her pain and suffering recovery for medical costs. Regardless, our decision is dictated by the language of the statute and any change must be addressed by the legislature.

CONCLUSION

In sum, we hold that Mr. Henry reserved his right to future workers’ compensation benefits by paying or having paid to the City the full amount of the City’s lien, less attorney’s fees. We further hold that the City should receive a credit against all future workers’ compensation benefits, including future medical expenses, which are or may become due to Mr. Henry in the amount found by the workers’ compensation judge of $2,054,758.10.

DECREE

For the foregoing reasons, we reverse the rulings of the courts below and render judgment.

REVERSED AND RENDERED.

       Retired Judge Philip C. Ciaccio, assigned as Justice ad hoc, sitting for Chief Justice Catherine D. Kimball.

      . Section 23:1102 reads:
      A. (1) If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.
      (2) Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers' compensation and tried before a workers’ compensation judge. However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).
      B. If a compromise with such third person is made by the employee or his dependents, the employer or insurer shall be liable to the employee or his dependents for any benefits under this Chapter which are in excess of the full amount paid by such third person, only after the employer or the insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim and only if written approval of such compromise is obtained from the employer or insurer by the employee or his dependent, at the time of or prior to such compromise. Written approval of the compromise must be obtained from the employer if the employer is self-insured, either in whole or in part. If the employee or his dependent fails to notify the employer or insurer of the suit against the third person or fails to obtain written approval of the compromise from the employer and insurer at the time of or prior to such compromise, the employee or his dependent shall forfeit the right to future compensation, including medical expenses. Notwithstanding the failure of the employer to approve such compromise, the employee’s or dependent’s right to future compensation in excess of the amount recovered from the compromise shall be reserved upon payment to the employer or insurer of the total amount of compensation benefits, and medical benefits, previously paid to or on behalf of the employee, exclusive of attorney fees arising out of the compromise; except in no event shall the amount paid to the employer or insurer exceed fifty percent of the total amount recovered from the compromise. Such reservation shall only apply after the employer or insurer receives a dollar for dollar credit against the full amount paid in compromise, less attorney fees and costs paid by the employee in prosecution of the third party claim.
      C.(1) When a suit has been filed against a third party defendant in which the employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this Section. Notwithstanding such payment, all rights of the employer or his insurer to assert the defense provided herein against the employee's claim for future compensation or medical benefits shall be reserved.

        (2) Nothing herein shall be interpreted to affect the rights of the employer or his insurer to otherwise seek reimbursement for past or future compensation benefits and medical benefits against a third party defendant or his insurer without regard to the actions of the employee on whose behalf said compensation and medical benefits were paid.

      . Section 23:1103 reads:
      A. (1) In the event that the employer or the employee or his dependent becomes party plaintiff in a suit against a third person, as provided in R.S. 23:1102, and damages are recovered, such damages shall be so apportioned in the judgment that the claim of the employer for the compensation actually paid shall take precedence over that of the injured employee or his dependent; and if the damages are not sufficient or are sufficient only to reimburse the employer for the compensation which he has actually paid, such damages shall be assessed solely in his favor; but if the damages are more than sufficient to so reimburse the employer, the excess shall be assessed in favor of the injured employee or his dependent, and upon payment thereof to the employee or his dependent, the liability of the employer for compensation shall cease for such part of the compensation due, computed at six percent per annum, and shall be satisfied by such payment. The employer's credit against its future compensation obligation shall be reduced by the amount of attorney fees and court costs paid by the employee in the third party suit.
      (2) No compromise with such third person by either the employer or the injured employee or his dependent shall be binding upon or affect the rights of the others unless assented to by him.
      (3) Any dispute between the employer and the employee regarding the calculation of the employer's credit may be filed with the office of workers’ compensation and tried before a workers' compensation judge. If a third party action has been filed in a district court, such dispute shall be filed in the district court and tried before a district judge unless the parties agree otherwise. However, any determination of the employer's credit shall not affect any rights granted to the employer or the employee pursuant to R.S. 23:1103(C).
      B. The claim of the employer shall be satisfied in the manner described above from the first dollar of the judgment without regard to how the damages have been itemized or classified by the judge or jury. Such first dollar satisfaction shall be paid from the entire judgment, regardless of whether the judgment includes compensation for losses other than medical expenses and lost wages.
      C. (1) If either the employer or employee intervenes in the third party suit filed by the other, the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, which portion shall not exceed one-third of the intervenor’s recovery for prejudgment payments or prejudgment damages. The amount of the portion of attorney fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. The employee as intervenor shall not be responsible for the employer’s attorney fees attributable to post-judgment damages nor will the employer as intervenor be responsible for the attorney fees attributable to the credit given to the employer under Subsection A of this Section. Costs shall include taxable court costs as well as the fees of experts retained by the plaintiff. The pro rata share of the intervenor's costs shall be based on intervenor's recovery of prejudgment payments or prejudgment damages.
      (2) When recovery of damages from a third party is made without filing of a suit, the employer shall be responsible for an amount, not to exceed one-third of his recovery on pre-compromise payments, for reasonable legal fees and costs incurred by the attorney retained by the employee or his dependent in pursuit of the third party matter. The responsibility for payment of this amount shall exist only if there is written approval of the compromise by the employer, his compensation carrier, or the compensation payor.
      D. An insurer shall grant its insured a dollar-for-dollar credit for any amount on any claim paid pursuant to this Chapter on the employer’s behalf and recovered in the current year, less any reasonable expenses incurred in the recovery by the insurer, in an action or compromise pursuant to this Section and R.S. 23:1102. The credit shall be used by the insurer in the calculation, including but not limited to loss experience ratios, of the annual premium paid by the employer for workers’ compensation insurance under this Chapter.

      . The City did not assign as error the amount of the credit.


author: PER CURIAM

text:
    In re William Eldren BRADLEY.
    No. 2011-B-0254.
    Supreme Court of Louisiana.
    April 25, 2011.
   PER CURIAM

11 This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, William E. Bradley, an attorney licensed to practice law in Louisiana but currently on interim suspension based upon his conviction of a serious crime. In re: Bradley, 09-0583 (La.4/1/09), 6 So.3d 745.

UNDERLYING FACTS

In 2009, respondent pled guilty in the United States District Court for the Eastern District of Louisiana to one count of conspiracy to bribe a state official in connection with a program receiving federal funds, namely the state’s film incentive program. In the factual basis accompanying the guilty plea, respondent admitted that he represented a client, Malcolm Petal, whose film production company was seeking Louisiana film tax credits. Mr. Petal paid respondent $135,000, of which respondent paid $67,500 to Mark Smith, the director of the Louisiana Film Commission. Mr. Smith then certified approximately $1,350,000 in tax credits for Mr. Petal’s ^company. Respondent was subsequently sentenced to serve ten months in federal prison.

DISCIPLINARY PROCEEDINGS

In January 2010, the ODC filed formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(e) (stating or implying an ability to influence improperly a judge, judicial officer, governmental agency, or official).

Respondent failed to answer the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Both the ODC and respondent filed submissions for the hearing committee’s consideration. In respondent’s submission, he admitted the factual allegations of the formal charges; however, he argued numerous mitigating factors are present, namely personal or emotional problems due to the health problems of his wife and daughter. He also argued permanent disbarment is not warranted because he was not a public | ¡¡official, as Mr. Smith was, and he did not engage in the additional misconduct of practicing law while suspended, as Mr. Petal did.

Hearing Committee Report

After considering the parties’ submissions on the issue of sanctions, the hearing committee determined the deemed admitted facts reflect that respondent pled guilty to the felony charge of conspiracy to bribe a state official in connection with a program receiving federal funds. Based on these facts, the committee determined respondent violated the Rules of Professional Conduct as charged.

The committee found respondent acted intentionally, as confirmed by his guilty plea. The committee also determined the baseline sanction is disbarment, based on the ABA’s Standards for Imposing Lawyer Sanctions.

The committee found the following aggravating factors present: a dishonest or selfish motive, a pattern of misconduct, and substantial experience in the practice of law (admitted 1998). The sole mitigating factor found by the committee was the absence of a prior disciplinary record.

After considering the permanent disbarment guidelines set forth in Supreme Court Rule XIX, Appendix E, the committee determined Guideline 2 (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) and Guideline 7 (malfeasance in office which results in a felony conviction, and which involves fraud) are applicable in this matter. Accordingly, the committee recommended respondent be permanently disbarred.

Respondent filed an objection to the hearing committee’s recommendation.

| ¿Disciplinary Board Recommendation

After reviewing the record, the disciplinary board determined that the hearing committee’s factual findings are supported by the factual allegations in the formal charges and/or by the evidence submitted in support of the allegations. Based on these facts, the board found the committee correctly applied the Rules of Professional Conduct.

The board determined respondent intentionally violated duties owed to the public, the legal system, and the legal profession. His conduct significantly harmed a program designed to provide economic benefits to the state and also caused serious harm to the reputation of the legal profession. After reviewing the ABA’s Standards for Imposing Lawyer Sanctions, the board determined the applicable baseline sanction is disbarment.

The board adopted the aggravating and mitigating factors found by the committee. Additionally, the board found the aggravating factor of illegal conduct is present.

Turning to the issue of an appropriate sanction, the board noted that the permanent disbarment guidelines relied upon by the committee do not apply in this matter. Specifically, the board determined that Guideline 2 does not apply because respondent’s criminal actions were not part of the “judicial process,” and Guideline 7 does not apply because respondent was not the party holding government office. However, the board observed that in In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162, this court held the permanent disbarment guidelines are “illustrative in nature and do not constitute an exclusive list of conduct for which an attorney may be permanently disbarred.” Furthermore, in In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718, the court permanently disbarred an attorney whose misconduct did not fall within the scope of the permanent disbarment guidelines. In Edwards, the 1 {¡attorney was convicted of racketeering, extortion, mail and wire fraud, and money laundering based upon his role in extorting money from individuals seeking approval of casino projects in exchange for state licensing of the casinos.

Accordingly, relying upon Kirchberg and determining respondent’s misconduct is similar to the misconduct that was the subject of Edwards, the board recommended respondent be permanently disbarred.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990). The discipline to be imposed in a given case depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent stands convicted of conspiracy to bribe a state official. This crime is a felony under federal law and clearly warrants serious discipline. Indeed, in their respective reports, the hearing committee and the disciplinary board have concluded that respondent’s offense is so egregious that he should be permanently prohibited from applying for readmission to the bar.

|fiWe agree. In Appendix E to Supreme Court Rule XIX, we set forth guidelines illustrating the types of conduct that might warrant permanent disbarment. However, we also made it clear that these guidelines are not intended to bind our decision-making process. While respondent’s misconduct may not definitively fit any of the specific permanent disbarment guidelines, his conviction of conspiracy to commit bribery nevertheless demonstrates a clear lack of moral fitness. We have not hesitated to permanently disbar attorneys who have committed serious crimes reflecting on their honesty and integrity. See, e.g., In re: Edwards, 04-0290 (La.7/2/04), 879 So.2d 718, and In re: Kirchberg, 03-0957 (La.9/26/03), 856 So.2d 1162. In light of respondent’s misconduct, we can conceive of no circumstances under which we would allow him to be readmitted to the practice of law.

Accordingly, we will adopt the disciplinary board’s recommendation and permanently disbar respondent.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of William Eldren Bradley, Louisiana Bar Roll number 22266, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10. 1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Chief Justice Kimball not participating in the opinion.

      . Mr. Smith and Mr. Petal were also Louisiana-licensed attorneys. Both men were permanently disbarred following their guilty pleas in connection with their role in the conspiracy; in addition, Mr. Petal was also found to have engaged in the unauthorized practice of law during his interim suspension. See In re: Smith, 09-2523 (La.3/12/10), 29 So.3d 484; In re: Petal, 10-0080 (La.3/26/10), 30 So.3d 728.

      . Respondent was scheduled to be released from prison in June 2010.

      . See fn. 1, supra.


author: PER CURIAM.

text:
    STATE of Louisiana v. Brett WARD, et al.
    No. 2011-KK-0438.
    Supreme Court of Louisiana.
    April 25, 2011.
   PER CURIAM.

| ^Although the defendant in a criminal trial has the right to prove his defense, including the calling of a prosecutor who is otherwise a competent witness, the prosecutor’s testimony must be relevant and material to the theory of the defense, and it must not be privileged, repetitious, or cumulative. See State v. Tuesno, 408 So.2d 1269, 1273 (La.1982). In a motion to disqualify the prosecutor, the defendant bears the burden of showing by a preponderance of the evidence that the prosecutor’s testimony is essential to the completion of his defense and that the information sought cannot be obtained through other available witnesses. See State v. Bourque, 622 So.2d 198, 216-17 (La.1993); State v. Tuesno, 408 So.2d at 1272-73; see also La.Code Evid. art. 507(A); Rule 3.7, Rules of Professional Conduct.

In the instant case, the trial judge specifically found that the information sought by the defendant from the assistant attorney general, who had interviewed the victim on one occasion without an investigator present, could be obtained from other sources. The trial judge had the benefit of the testimony given at the hearing on the motion to disqualify, as well as the various statements made by the victim on multiple occasions. On the showing made by the defendant, we cannot say the |2trial judge abused her discretion in finding the defendant failed to carry his burden of proof. Thus, we find the court of appeal majority erred in concluding otherwise, and in granting the defendant’s motion to disqualify the assistant attorney general.

For these reasons, the court of appeal’s judgment is reversed, and the district court’s ruling denying the defendant’s motion to disqualify is reinstated.

REVERSED; DISTRICT COURT RULING REINSTATED.

JOHNSON, J., would deny the writ.

       Chief Justice Catherine D. Kimball and Associate Justice Jeannette T. Knoll not participating.


text:
    In re Mickey Remy MASON.
    No. 2011-OB-0552.
    Supreme Court of Louisiana.
    April 25, 2011.
   ORDER

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into numerous allegations of serious professional misconduct by respondent. These matters involve a pattern by respondent of neglecting legal matters, failing to communicate with his clients, and improperly settling potential claims for his malpractice with unrepresented clients. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Permanent Resignation from the Practice of Law filed by Mickey Remy Mason, Louisiana Bar Roll number 1914, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Mickey Remy Mason for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5 of the Rules of Professional Conduct.

IT IS FURTHER ORDERED that Mickey Remy Mason shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

NEW ORLEANS, LOUISIANA, this 25th day of April, 2011.

/s/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana


text:
    In re Joseph A. KOTT.
    No. 2008-OB-2174.
    Supreme Court of Louisiana.
    May 18, 2011.
   ORDER

Considering the “Termination of Conditional Admission” filed by the Office of Disciplinary Counsel,

IT IS ORDERED that the probationary period imposed by this court in In re: Kott, 08-2174 (La.12/12/08), 995 So.2d 1211, be and hereby is terminated, as the court finds petitioner has successfully complied with all terms of probation.

/s/ Bernette J. Johnson /s/ Justice, Supreme Court of Louisiana

GUIDRY, J., recused.

VICTORY, J., dissents.


author: JOHNSON, J.,

text:
    John FLOYD v. Burl CAIN, Warden.
    No. 2010-KP-1163.
    Supreme Court of Louisiana.
    May 20, 2011.
    JOHNSON, J., would grant with reasons.
    KNOLL, J., would grant.
    WEIMER, J., would grant.
   JOHNSON, J.,

would grant and assigns reasons.

|, John D. Floyd (Floyd) was indicted for two counts of second degree murder, the first count for the murder of William Hines, Jr., and the second count, for the murder of Rodney Robinson. State v. Floyd, 435 So.2d 992, 993-94 (La.1983). He was ultimately tried by a judge alone, found not guilty of the murder of Robinson and convicted for the second degree murder of Hines. Despite confessing to both crimes, the evidence conclusively proved that Robinson’s assailant was not Floyd, a Caucasian with Type B blood, but instead, a black male with Type A blood. Id. at 994.

FACTS

On November 26, 1980, William Hines, Jr. was discovered lying beside his bed in his apartment, dead from multiple stab wounds. Three days later, on November 29, 1980, Rodney Robinson was discovered in the hallway of a New Orleans hotel, stabbed to death. Both victims were homosexual men, murdered in the early morning hours, in their bedrooms. Pubic hairs of Negroid origin, not belonging to either of the victims, and not belonging to Floyd, were found at both crime scenes. Two half-filled glasses of whiskey were found at both murder scenes. Because of the similarities, investigating police officers theorized that the two homicides were linked and that 12one individual committed both crimes.

The pubic hair evidence in the Robinson murder was left by the perpetrator in a blood-stained plastic cap. Pubic hair was also found on a napkin containing semen next to Robinson’s body. A black male was seen fleeing the scene of the Robinson murder immediately after the murder. Floyd was ultimately excluded by forensic hair comparison as the donor of the biological evidence found at the Robinson crime scene.

Hines’ apartment revealed no signs of a struggle, no evidence of burglary, and no evidence that the apartment had been entered by force. Hines’ clothes were found neatly draped over a chair. His body was discovered approximately thirty-six hours after his death, and scientific examination of the body revealed no clues. Pubic hair, from an black male was found at the Hines’ crime scene. Both the victim and defendant were excluded as donors of the pubic hair by forensic hair comparison. Additionally, the coroner believed that Hines’ killer may have had medical knowledge.

The police learned that a man called “Crazy Johnny” had made statements which linked him to the killings. Two French Quarter residents who also knew “Crazy Johnny” identified him as John D. Floyd and selected his photograph from a picture lineup presented by the New Orleans police. One of those persons, Stephen Edwards, who identified the defendant as “Crazy Johnny,” operated a French Quarter bar. Edwards related to police an encounter with Floyd on the sidewalk near Edwards’ establishment. Edwards had warned Floyd not to enter his bar because Floyd had been banned from the bar for recent disruptive behavior. According to Edwards, Floyd then told him to leave him alone, and suggested that “I already wasted one person.” Edwards then asked if the victim had been the man who lived Raround the corner (Hines) and Floyd answered, “Yeah. On Governor Nicholls.”

Another witness, Gerald Griffin, had accompanied Floyd to the detoxification unit in New Orleans Charity Hospital on the morning of November 29, 1980. Griffin stated that Floyd had asked him if he knew about the hotel killing (which had just occurred on November 29), and Floyd then stated that people who were hospitalized as mentally ill were sometimes found not to be responsible for their actions. After the trip to the hospital, Griffin saw an account of the hotel killing of Robinson and reported his conversation with Floyd to Detective John Dillmann, (Dillmann), believing that there might be a connection between Floyd and the Robinson killing.

Detective Dillmann and Officer John Reilly located Floyd at a bar called The Louisiana Purchase. They had a drink with Floyd, talked with him for about twenty minutes, asked him to step outside, handcuffed him, walked him a few blocks to the officers’ automobile, and took him to police headquarters where Floyd confessed to both the Hines and Robinson murders.

The Innocence Project of New Orleans discovered fingerprint evidence that had not been previously turned over to the defendant, and had been in the custody of the State for over thirty years. Police files relating to the murder contained a set of latent fingerprints taken from a whiskey bottle and glasses found at the scene of the Hines murder. Although there was speculative testimony regarding whether the print identification might have been inconclusive, the prints are undisputably marked by law enforcement as “Not John Floyd” and “Not victim.” The available evidence also included an affidavit of the victim’s friend, John Clegg who claimed that he told the investigating officer, Detective Dillmann, that Hines had a preference for black men which is consistent with pubic hair found at the Hines’ crime scene.

There are few police records in either of these homicide cases because in 1988, 14Petective Dillmann apparently took the original police files of both cases from the New Orleans Police Department in order to write a book about his investigation. John Dillmann, Blood Warning: The True Story of the New Orleans Slasher, (1st ed 1989). Dillmann stored the files in the trunk of his car and in his home until the files were destroyed during Hurricane Katrina.

The defense suggests that Floyd has an IQ of 59 (well below the threshold for mental retardation). Dr. Gregory DeClue, a forensic psychologist, who testified at Floyd’s post-conviction hearing, administered the WAIS IV IQ test to Floyd at the Louisiana State Penitentiary in Angola in June 2009, and that test indicated Floyd has a full scale IQ of 59. The generally accepted cut off for mental retardation is 70. According to DeClue, 99% of all adults in the United States score higher on the test than Floyd.

Additionally, DeClue administered the Woodcock Johnson test to Floyd to assess his language and reading comprehension skills. DeClue testified that, based on the test results, Floyd can read at a second or third grade level. DeClue stressed that these results indicate Floyd cannot communicate at the complex level an average adult can.

DeClue also administered the Gudjons-son Suggestibility Scale to determine Floyd’s levels of suggestibility and compliance. DeClue found that relator displayed a high level of suggestibility, and that Floyd’s “self-reported description was that he’s more compliant than the average person.” DeClue testified that people classified as mentally retarded are 10 times more likely to give a false confession, that in many false confession cases, the confessor included details of the crime scene presumed to be known only by the police and the perpetrator.

Although mental retardation or illiteracy, alone, do not prevent a person from | Joeing able to knowingly and intelligently waive his rights, this Court has held that a mentally retarded 17-year-old with an IQ between 50 and 69 was not able to understand his rights and was incapable of knowingly and intelligently waiving his Miranda rights, and thus his confession should have been suppressed. State v. Anderson, 379 So.2d 735, (La.1980). See also State v. Raiford, 03-0098 (La.App. 4 Cir. 4/23/03) 846 So.2d 913, where we held a suspect must have the capacity to understand the rights explained before there can be a valid waiver of his rights. State v. Brown, 414 So.2d 689 (La.1982); State v. Young, 576 So.2d 1048 (La.App. 1st Cir. 1991); State v. Tart, 672 So.2d 116 (La. 1996).

BRADY VIOLATION

In my view, the exculpatory value of the fingerprint evidence is sufficient to undermine confidence in the outcome of Floyd’s trial, thus satisfying the requirements for a new trial set forth in Brady v. Maryland. For purposes of Brady’s due process rule, a reviewing court determining materiality must ascertain:

not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.

Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381); see also State v. Strickland, 94-0025, p. 38 (La.11/1/96), 683 So.2d 218, 234 (quoting State v. Marshall, 81-3115, Rp. 13-15 (La.9/5/95), 660 So.2d 819, 825 (quoting Kyles)). Therefore, the reviewing court does not put the material to an outcome-determinative test in which it weighs the probabilities that the petitioner would have obtained an acquittal at trial or might do so at a second trial. Instead, a Brady violation occurs when, as in this case, the “evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting Bagley, 473 U.S. at 678, 105 S.Ct. at 3381). The State is charged with knowledge of the collective information in possession of the investigating officers. Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1937, 1948, 144 L.Ed.2d 286 (1999)(“The [Brady] rule encompasses evidence known only to police investigators and not to the prosecutor .... [who] has the duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.”)

Considering all of the evidence, including Floyd’s false confession to the murder of Robinson, Floyd’s low IQ and susceptibility to suggestion, the missing police records, the lack of evidence linking Floyd to the murder of Hines, the exculpatory value of the fingerprint evidence, defendant is entitled to a new trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); State v. Loyd, 425 So.2d 710 (La. 1982); State v. Ned, 326 So.2d 477 (La. 1976).

      . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In Brady, the Supreme Court held that the suppression by the prosecution of evidence favorable to the accused after receiving a request for it violates a defendant’s due process rights where the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. The Brady rule encompasses evidence which impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 756, 31 L.Ed.2d 104 (1972); State v. Knapper, 579 So.2d 956, 959 (La. 1991).