author: CRICHTON, J. WEIMER, J., concurring.

text:
    IN RE: Ronald SEASTRUNK
    No. 2017-B-0178
    Supreme Court of Louisiana.
    October 18, 2017
    OFFICE OF DISCIPLINARY COUNSEL, Charles Bennett Plattsmier ; Robert Samuel Kennedy, Jr. ; For Applicant;
    Dane S. Ciolino ; Ronald Kenneth Seastrunk ; Paul Ellis Adams, Jr. ; For Respondent.
    ATTORNEY DISCIPLINARY PROCEEDING
   CRICHTON, J.

This attorney disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel ("ODC") against respondent, Ronald Seastrunk, an assistant district attorney in Vernon Parish. Specifically, ODC alleges respondent violated Rule 3.8(d) of the Louisiana Rules of Professional Conduct in failing to disclose exculpatory evidence. As a result, this Court must now determine an issue of first impression with ramifications beyond this respondent: whether the ethical duty outlined in Rule 3.8(d) is broader than the similar duty outlined by the United States Supreme Court's landmark case of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons that follow, we find the duties set forth above are coextensive. As a result, we find ODC failed to meet its burden of proof in this case and dismiss all charges against respondent.

FACTS AND PROCEDURAL HISTORY

These allegations against respondent arise out of the prosecution of Justin Sizemore ("Sizemore") for the homicide of Christopher Hoffpauir. In this case, the discipline-related issues, namely, whether the alleged withheld evidence was material and exculpatory, are fact and case specific. Therefore, it is necessary to understand the procedural background of the underlying criminal prosecution.

On June 14, 2010, Christopher Hoffpauir's body was discovered in a roadside ditch in Vernon Parish. Christopher's estranged wife, Kristyn Hoffpauir, gave conflicting recorded statements to detectives of the Vernon Parish Sheriff's Office. In the first statement, on June 15, 2010, Kristyn denied any involvement in her husband's murder. In the second statement, on June 16, 2010, Kristyn reported that, on the day of the murder, she picked up Sizemore and then called Christopher, asking him to assist her in a roadside emergency. According to Kristyn, she and Sizemore wanted to lure Christopher to their location, because Sizemore wanted to talk to Christopher about his relationship with Kristyn. Kristyn stated that Sizemore got into the trunk of the car because she did not want Christopher to see her with another man. When Christopher arrived, Sizemore exited the trunk through the passenger compartment, got out of the car, and shot and killed Christopher. Sizemore picked up the spent shell casings, and he and Kristyn left the scene. Sizemore stopped the car on a bridge near Lecompte, Louisiana, and threw the gun and spent casings off the bridge. Kristyn denied knowing that Sizemore was going to kill Christopher.

On June 17, 2010, Kristyn participated in a video reenactment of the murder at the crime scene. During the reenactment, Kristyn again related that Sizemore was hiding in the trunk, got out, and shot Christopher.

Sizemore and Kristyn were subsequently indicted for Christopher's homicide. In advance of trial, Kristyn accepted a plea agreement, wherein she pleaded guilty to manslaughter, conspiracy to commit manslaughter, and obstruction of justice. Sentencing was deferred pending her testimony against Sizemore.

District Attorney Asa Skinner assigned respondent, along with Assistant District Attorney Scott Westerchil, to prosecute the case. District Attorney Skinner, respondent, and Mr. Westerchil agreed that there was no prosecutor who was "first chair," or primarily responsible, for the case. Respondent and Mr. Westerchil simply agreed upon a division of labor between them, particularly with regard to the testimony of the witnesses for which each would take responsibility.

Despite Kristyn's plea agreement, the prosecutors remained skeptical about her version of the events, specifically regarding Sizemore's location before the shooting. The vehicle driven to the scene was a Mitsubishi Eclipse convertible. The vehicle had scant room in the trunk to begin with, and a metal bulkhead separated the passenger compartment from the trunk. Mr. Westerchil, who was responsible for Kristyn's testimony, advised Kristyn that he did not believe her statements about Sizemore hiding in the trunk. During the first meeting, for which District Attorney Skinner and respondent were present, Kristyn maintained this version of the events. During a subsequent meeting with only Mr. Westerchil, Kristyn admitted that Sizemore had hidden in brush along the side of the road, from which he ambushed Christopher. Mr. Westerchil memorialized this meeting in handwritten notes, but he did not disclose this meeting to the defense, as he did not consider them to be exculpatory.

The First Trial: Failure to Disclose Kristyn's Conflicting Statement

At Sizemore's first trial in November 2011, Mr. Westerchil advised the jury in his opening statement that Kristyn would testify that Sizemore lay in wait along the side of the road for her and Christopher to return to the scene. Sizemore's attorney, Tony Tillman, did not know until then that Kristyn's testimony would differ from her initial statements to the police. On the second day of trial, Mr. Tillman objected, noting that Kristyn gave "substantially conflicting statements." Judge James R. Mitchell, who presided over Sizemore's first trial, ordered Mr. Westerchil to give Mr. Tillman a copy of the notes he had taken during his interviews with Kristyn, which Mr. Westerchil did. After reviewing the notes, Mr. Tillman conferred with Sizemore, who opted to proceed. The jury was ultimately unable to reach a verdict, and Judge Mitchell declared a mistrial.

The Second Trial: Failure to Disclose Statements Concerning Kristyn's Possession of a Gun

Sizemore's second trial revealed an additional piece of evidence that respondent allegedly failed to disclose. As background, Jody Thibeaux ("Thibeaux") had been called as a defense witness in the first trial. Thibeaux, who was previously married to Kristyn's sister, Misty, testified Kristyn told him that she was the beneficiary of Christopher's $400,000 life insurance policy and that she had killed Christopher. After the first trial, District Attorney Skinner asked Detective Ray Ortiz of the Vernon Parish Sheriff's Office to interview Thibeaux. Thibeaux further reported that Misty's mother told Misty that, approximately three years earlier, she had found a .22 caliber revolver in Kristyn's closet. Thibeaux also indicated that, during this same time period, Kristyn had threatened to kill her mother. After the interview, Detective Ortiz told respondent what Thibeaux said about the revolver and asked respondent if that would be considered hearsay. Respondent told Detective Ortiz it probably was but that he would have to look at it more closely.

A few days later, Mr. Westerchil, respondent, and District Attorney Skinner met to discuss trial strategy. Detective Ortiz presented his written report of Thibeaux's statement, telling the prosecutors he had omitted information regarding the revolver from his report. District Attorney Skinner advised that it was not necessary to put the information about the revolver in the report because owning or possessing a gun is not a crime, the event occurred more than three years before the murder and was too remote in time to be relevant, and, critically, Thibeaux was a defense witness. Detective Ortiz did not advise the prosecutors at all about Kristyn's threat to kill her mother, because he intended to follow up with Kristyn's sister and mother. Mr. Westerchil, who was responsible for cross-examining Thibeaux, intended to supplement the State's discovery responses to disclose Detective Ortiz's report, but District Attorney Skinner instructed him not to do so.

At the second trial, on direct examination, Kristyn testified that she had no experience with firearms, she did not hunt, she did not own a weapon, and she had never shot a gun. During Mr. Westerchil's cross-examination of Thibeaux, Mr. Tillman learned of his interview by Detective Ortiz and immediately objected to any testimony regarding the undisclosed interview. Judge Mitchell excused the jury and entertained arguments regarding the objection of defense counsel, during which Mr. Westerchil, joined by respondent and District Attorney Skinner, argued that the State was not required to disclose the report of Thibeaux's interview because it contained no exculpatory material. Though Judge Mitchell reviewed the report and found in it an example of exculpatory material, Judge Mitchell nevertheless overruled Mr. Tillman's objection, finding the information contained in the report had already been testified to and provided to Mr. Tillman.

Later that day, Mr. Tillman learned of the information about a gun being found in Kristyn's room and of Thibeaux's statement about Kristyn threatening to kill her mother. Mr. Tillman moved for a mistrial based upon the State's failure to disclose the information Detective Ortiz learned from his interview. Mr. Westerchil agreed to a mistrial, and Judge Mitchell thereafter declared a mistrial.

The Third Trial

Before the third trial, Detective Ortiz prepared a supplemental report that included the information about the revolver and Kristyn's threat to kill her mother. That third trial, which was held in May 2012, resulted in Sizemore's conviction of Christopher's murder, and he was sentenced to life in prison. The conviction was affirmed on appeal. State v. Sizemore , 13-529, 13-530 (La. App. 3d Cir. 12/18/13), 129 So.3d 860, writ denied , 14-0167 (La. 8/25/14), 147 So.3d 699.

Both Judge Mitchell and Mr. Tillman filed disciplinary complaints against Mr. Westerchil, District Attorney Skinner, and respondent, arising from their failure to disclose the information that was omitted from Detective Ortiz's report.

DISCIPLINARY PROCEEDINGS

In September 2014, the ODC filed formal charges against Mr. Westerchil, who, through counsel, answered the formal charges and denied any misconduct. In December 2014, the ODC filed similar formal charges against respondent, Ronald Seastrunk, alleging he violated Rule 3.8(d) (the prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense) of the Rules of Professional Conduct. Respondent, through counsel, answered the formal charges, denying any misconduct. No formal charges were filed against District Attorney Skinner.

Prior to a formal hearing on the merits, Mr. Westerchil's matter and respondent's matter were consolidated by order of the hearing committee chair. Following the hearing but prior to the committee issuing its report, Mr. Westerchil was elected as a judge in the 30th JDC. Accordingly, the ODC ceased to have jurisdiction over Mr. Westerchil's conduct, pursuant to Supreme Court Rule XIX, § 6(C), and the formal charges against him were dismissed without prejudice.

Formal Hearing

The hearing committee conducted the formal hearing on June 3-4, 2015. ODC introduced documentary evidence and called several witnesses to testify, including defense counsel Tony Tillman, Judge James Mitchell, Detective Ray Ortiz, District Attorney Asa Skinner, Lisa Nelson (Kristyn's appointed public defender), and Scott Westerchil. Respondent testified on his own behalf, and called one witness to testify.

Hearing Committee Report

In concluding that respondent committed a violation of Rule 3.8(d), the committee specifically found that the information related by Detective Ortiz (concerning Kristyn's alleged gun and threat to kill her mother) represents a "troublesome issue." Mr. Westerchil questioned Kristyn at each trial about her familiarity with guns. At the first two trials, he did not ask her if she ever possessed a firearm, but at the third trial, he effectively disarmed Mr. Tillman by asking her about the gun found in her room. The hearing committee concluded that this information was pertinent because Sizemore's version of events placed him stranded along the side of the road while Kristyn committed the murder. In other words, Sizemore maintained he hit an ice chest while driving and pulled over to check the car. After he exited the car, Kristyn then jumped into the driver's seat and drove off without him to murder her husband. Detective Ortiz's information would tend to support Sizemore's version of events by demonstrating that Kristyn was more familiar with guns than she admitted in the first two trials. Because Kristyn denied any familiarity with guns during the first two trials, the committee determined that Detective Ortiz's information not only would have been useful for impeaching her testimony, but it might have also tended to negate Sizemore's guilt by demonstrating that Kristyn could possibly have been the shooter.

The committee noted that District Attorney Skinner ordered Mr. Westerchil not to disclose the information from Detective Ortiz to the defense. Respondent argued that he should be shielded from discipline by virtue of Rule 5.2(b) of the Rules of Professional Conduct, which provides that "[a] subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty." The committee disagreed, determining that District Attorney Skinner's resolution was neither reasonable nor arguable. According to the committee, District Attorney Skinner's decision that such information should not be given to the defense did not logically follow from the premise that the information was hearsay because, if the defense had known about the information, it could have called as witnesses the people identified by Thibeaux as possessing firsthand knowledge of the events in question.

Based on the above findings, the committee determined respondent violated Rule 3.8(d) by failing to disclose to the defense the information procured by Detective Ortiz, noting that respondent had substantial experience as a prosecutor and that neither he nor Mr. Westerchil was principally responsible for the case. However, because principal responsibility of matters relating to Kristyn and Thibeaux fell upon Mr. Westerchil, the committee determined that, at most, respondent was negligent in his failure to disclose Detective Ortiz's information. The committee also determined that respondent's conduct caused potential injury to the defense. After considering the ABA's Standards for Imposing Lawyer Sanctions , the committee determined that the baseline sanction is a public reprimand.

The committee found no aggravating factors present. In mitigation, the committee found the absence of a dishonest or selfish motive, a cooperative attitude toward the proceedings, and good character or reputation in the legal community.

Turning to the issue of an appropriate sanction, the committee cited In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, wherein a prosecutor withheld from the defense a statement to the police by an eyewitness to a homicide that she was not wearing her contact lenses or glasses and could only distinguish shapes. For this misconduct in Jordan , which resulted in the defendant's conviction being reversed on appeal, the Court imposed upon the prosecutor a three-month suspension, fully deferred.

In light of this case law, but noting that respondent and Mr. Westerchil agreed to a mistrial and that respondent was not directly responsible for cross-examining Jody, the committee recommended that respondent be publicly reprimanded.

The ODC objected to the hearing committee's report and recommendation.

Order of the Disciplinary Board

After review, the disciplinary board found that the hearing committee's factual findings did not appear to be manifestly erroneous. Additionally, the board found that the committee's detailed recitation of facts and chronology of events is consistent with the testimony and evidence in the record. Based on these facts, the board agreed with the committee's determination that respondent violated Rule 3.8(d) of the Rules of Professional Conduct.

As a threshold matter, the board noted that the committee did not address the issue of whether respondent's failure to disclose Kristyn's inconsistent statements during Sizemore's first trial violated Rule 3.8(d), and thus, presumably the committee concluded that the ODC did not prove those allegations by clear and convincing evidence. The board agreed, noting that respondent was not present during Mr. Westerchil's interviews of Kristyn and was never in possession of Mr. Westerchil's handwritten notes which evidenced the inconsistent statements. Based on this reasoning, the board concluded that respondent did not violate Rule 3.8(d) by failing to disclose Kristyn's inconsistent statements.

Despite agreeing with the committee's legal conclusion, the board determined that the committee's legal analysis was incomplete. More specifically, the board described the issue in this matter as whether the ethical duty imposed by Rule 3.8(d) is the same as or broader than the constitutional duty imposed by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny in United States v. Bagley , 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and Kyles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Respondent argued that Rule 3.8(d) imposes the same duty as Brady , while the ODC argued that Rule 3.8(d) imposes a broader duty, thereby requiring disclosure of evidence that would not need to be disclosed under Brady .

Like the committee, the board found guidance from In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, noting that the Court's opinion in Jordan clearly indicates materiality will be considered when determining if Rule 3.8(d) was violated. In its analysis in Jordan , the Court stated, "[t]he language of Rule 3.8(d)is recognizably similar to the prosecutor's duty set forth in Brady ... and its progeny." Id. at 781. Accordingly, the board determined that, contrary to the ODC's argument, the Court's holding in Jordan indicates that a prosecutor's ethical obligation under Rule 3.8(d) is the same as the constitutional obligation imposed by Brady and its progeny.

In order to determine if respondent violated Rule 3.8(d), the board thus had to determine if the withheld evidence, that being Thibeaux's statement to Detective Ortiz, was material. The board determined that Thibeaux's statement about Kristyn possessing a gun was material and should have been disclosed to the defense. Kristyn twice stated under oath that she did not have experience with guns. The board therefore reasoned that Thibeaux's statement called into question the truthfulness of Kristyn's testimony and, because Kristyn's credibility was very important to the prosecution, any evidence negatively affecting her credibility would be material to the defense. As such, the board determined respondent violated Rule 3.8(d) by failing to disclose Thibeaux's statement.

Respondent again argued that he is shielded from a violation of Rule 3.8(d) because, under Rule 5.2(b), he reasonably relied on District Attorney Skinner's decision to not include Thibeaux's statement about the gun in Kristyn's possession in the report and to not provide the report to the defense. The board did not agree. According to the board, there was not an arguable question of professional duty under the particular facts of this matter. The board concluded the information provided by Thibeaux was material and should have been disclosed to the defense; thus, respondent was not reasonable in his reliance on District Attorney Skinner's directive to not include the information in Detective Ortiz's report and to not disclose the report to the defense.

The board then determined that respondent negligently violated duties owed to the public and the legal system. According to the board, respondent should have known that Thibeaux's statement impacted Kristyn's credibility and, thus, should have been disclosed to the defense. Respondent's failure to disclose the statement caused actual harm to the legal system, as it resulted in the parties agreeing to a mistrial, which, in turn, led to Sizemore going through a third trial. After considering the ABA's Standards for Imposing Lawyer Sanctions , the board determined that the baseline sanction is a public reprimand.

The sole aggravating factor found by the board was respondent's substantial experience in the practice of law (he was admitted in 1992). In mitigation, the board found the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, timely good faith effort to make restitution or to rectify the consequences of the misconduct (agreeing to a mistrial), full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and good character or reputation in the legal community.

Turning to the issue of an appropriate sanction, the board again cited this Court's opinion in Jordan . Noting that Jordan involved knowing misconduct and that Mr. Jordan never took remedial action as respondent did by agreeing to a mistrial, the board determined that respondent's conduct was less egregious than Mr. Jordan's. Accordingly, the board ordered that respondent be publicly reprimanded. One board member dissented, arguing that the charges against respondent should be dismissed because "it is unfair to the respondent to issue a public reprimand and tarnish his reputation based on the charges against him."

Both parties appealed the board's ruling to this Court, and we ordered the parties to submit written briefs addressing the issue of whether the record supports the disciplinary board's report. The matter was thereafter docketed for oral argument.

In brief to this Court, ODC asserts prosecutors, according to our holding in Jordan , have no discretion as a matter of ethics as to whether or not otherwise exculpatory evidence is subject to disclosure simply because that evidence may later be deemed not "outcome determinative." Thus, ODC maintains that a prosecutor's duty to disclosure exculpatory evidence is not the same as the constitutional obligation under Brady and its progeny. Furthermore, ODC concedes the evidence of Thibeaux's statement regarding the gun was never constitutionally material because it did not present a reasonable probability that its nondisclosure would affect the outcome of Sizemore's case. However, ODC maintains respondent was still obligated to disclose the information under Rule 3.8(d) and this Court's holding in Jordan . Finally, ODC asserts that a public reprimand is unduly lenient in this case, and argues that a suspension is the more appropriate sanction for respondent's conduct.

In contrast, respondent argues he had no ethical or constitutional obligation to disclose to the defense Thibeaux's statement to Detective Ortiz, as the statement was not exculpatory, it was not material, and it was withheld in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. Respondent maintains that Thibeaux's statement was not exculpatory because it neither tended to exonerate Sizemore nor impeach Kristyn's testimony at trial. Furthermore, urging that this Court has already determined in the Jordan case that materiality matters under both Rule 3.8(d) and Brady , respondent argues the statement was not material because the defense knew about the statement during the third trial and did not utilize it. Finally, respondent states that under Rule 5.2(b) of the Rules of Professional Conduct (the "safe harbor" provision), he had no ethical obligation to disclose Thibeaux's statement because District Attorney Skinner, his supervisory lawyer, determined that Brady did not require such a disclosure. In other words, respondent asserts that whether Thibeaux's statement was covered by Brady or Rule 3.8(d) is arguable; thus, District Attorney Skinner's decision not to disclose it provides a Rule 5.2(b) safe harbor to respondent. For these reasons, respondent asserts either the formal charges should be dismissed, or in the alternative, he should receive only a public reprimand.

The Louisiana District Attorneys Association ("LDAA") filed an amicus brief opposing ODC's argument that prosecutors should be subject to discipline for failing to disclose evidence that may be theoretically exculpatory even if such evidence does not meet the Brady threshold. The LDAA asserts that ODC's proposed "broader-than- Brady " rule would only create confusion, and ODC has not established that Brady's standard has proven inadequate. Once the requirement of materiality has been severed from Rule 3.8(d), it is no simple matter to determine whether evidence is "exculpatory" or "tends to negate the guilt of the accused or mitigates the offense." Rule 3.8(d). Creating such a rule would also impose new ethical duties upon prosecutors and subject them to unnecessary discipline.

For the reasons that follow, we agree with respondent and the LDAA, and decline to adopt the interpretation of Rule 3.8(d) offered by ODC.

DISCUSSION

The underlying facts regarding respondent's specific conduct are not in dispute. ODC asserts the violations of Rule 3.8(d) arise out of respondent's alleged failure to disclose Kristyn's inconsistent statements during her interviews throughout the investigation, as well as respondent's failure to disclose hearsay statements concerning Kristyn's possession of a gun.

This Court recognizes the paramount role of the prosecutor in our system of justice, and the vast discretion to which he is entrusted:

Because a prosecutor is given such great power and discretion, he is also charged with a high ethical standard. A prosecutor stands as the representative of the people of the State of Louisiana. He is entrusted with upholding the integrity of the criminal justice system by ensuring that justice is served for both the victims of crimes and the accused.

In re: Jordan , 04-2397, p. 9 (La. 6/29/05), 913 So.2d 775, 781, citing In re: Toups , 00-0634, p. 10 (La. 11/28/00), 773 So.2d 709, 715 (internal citation omitted).

With such a solemn duty comes great responsibility. As noted by the Supreme Court in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), "[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." Id. at 87, 83 S.Ct. 1194. In light of this, the United States Supreme Court set forth the duty to disclose mitigating evidence as follows:

[S]uppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Id. at 87, 83 S.Ct. 1194. Concerning materiality, the Supreme Court found that evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). Furthermore, "[a] 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id.

In addition to Brady , Rule 3.8(d) of the Louisiana Rules of Professional Conduct sets forth the "Special Responsibilities of a Prosecutor." In Jordan , we noted that Rule 3.8(d) is "recognizably similar" to the prosecutor's duty set forth in Brady . Jordan , 04-2397, p. 9 (La. 6/29/05), 913 So.2d 775, 781. Rule 3.8(d) states:

The prosecutor in a criminal case shall ... make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.[ ]

Louisiana's Code of Criminal Procedure article 723(B) also sets forth a specific duty of prosecutors, as dictated by Brady : "[n]otwithstanding any provision to the contrary contained herein, the state shall provide the defendant with any evidence constitutionally required to be disclosed pursuant to Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny."

As mentioned, because this Court has only tangentially, and not specifically, addressed the relationship between Rule 3.8(d) and Brady in In re: Jordan , 04-2397 (La. 6/29/05), 913 So.2d 775, we must now determine the parameters of a prosecutor's ethical duty to disclose exculpatory material under Rule 3.8(d) as compared to the duty outlined in Brady . Jordan remains the sole case in which this Court has disciplined a prosecutor for failing to turn over Brady evidence, and again, one which provides us limited guidance here. Significantly, in State v. Cousin , 96-2973 (La. 4/14/98), 710 So.2d 1065, the underlying criminal case forming the basis for Jordan , this court had already made a determination that the statement at issue was "obviously" exculpatory, material to the issue of guilt, and "clearly" should have been produced to the defense." Therefore, the evidence in Jordan would have been subject to disclosure under Brady . As a result, the Jordan Court was not required to determine whether Rule 3.8(d) created a broader duty than the constitutional one set forth in Brady .

We reject ODC's efforts here to broaden Rule 3.8(d) beyond that which Brady and its progeny mandates, and specifically find that the duties outlined in 3.8(d) and Brady are coextensive. ODC's expansive interpretation of Rule 3.8(d) effectively removes the materiality standard enumerated by Bagley , supra . When confronted with a similar question, other states have also found the disclosure obligations of professional rules are coextensive with the obligations required by Brady . See In the Matter of Attorney C , 47 P.3d 1167 (Co. 2002) (finding Colorado version of the rule aligned with Brady and adopting a materiality standard to avoid imposing "inconsistent obligations upon prosecutors"); Disciplinary Counsel v. Kellogg-Martin , 124 Ohio St.3d 415, 923 N.E.2d 125 (Ohio 2010) (declining to construe Ohio version of the rule as requiring a greater scope of disclosure than Brady out of concern it would "threaten prosecutors with professional discipline for failing to disclose evidence even when the applicable law does not require disclosure"); In re: Riek , 350 Wis.2d 684, 834 N.W.2d 384 (2013) (declining to construe Wisconsin version of rule "to impose ethical obligations on prosecutors that transcend the requirements of Brady " and finding that "[d]isparate standards are likely to generate confusion"); State ex rel. Oklahoma Bar Ass'n v. Ward , 353 P.3d 509 (2015) (construing Oklahoma version of rule as "consistent with the scope of disclosure required by applicable law"). As these other courts have found, under conflicting standards, prosecutors would face uncertainty as to how to proceed, as they could find themselves in compliance with the standard enumerated in Brady , but in potential violation of the obligation set forth in Rule 3.8(d). In finding the obligations coextensive in Rule 3.8(d) and Brady , we decline to impose inconsistent disclosure obligations upon prosecutors, thereby eliminating confusion.

A broader interpretation of Rule 3.8(d) also invites the use of an ethical rule as a tactical weapon in criminal litigation. We find the practical effect of this potential threat to be poor policy, and, again, decline to adopt the reasoning proffered by ODC.

In light of the foregoing, we find ODC did not meet its burden of proof of clear and convincing evidence to establish any violation of any Rule of Professional Conduct in this matter. We therefore dismiss all charges against respondent.

CONCLUSION

The disclosure obligations found in Rule 3.8(d) of the Louisiana Rules of Professional Conduct and in Brady v. Maryland are coextensive. For this reason, we find ODC failed to meet its burden of proof in this case and dismiss all charges against respondent.

HUGHES, J., concurs with reasons.

WEIMER, J., concurs and assigns reasons

JOHNSON, Chief Justice, concurs in the result.

WEIMER, J., concurring.

I agree that the respondent has not engaged in misconduct. I write separately from the majority to emphasize that such conclusion is supported by the plain language of Rule 3.8(d) of the Louisiana Rules of Professional Conduct.

As a preliminary, factual matter, the disciplinary board did not manifestly err in finding that the respondent lacked knowledge of Kristyn Hoffpauir's varying accounts of her husband's homicide. Therefore, the only issue remaining is whether respondent committed misconduct by failing to disclose statements concerning Kristyn's possession of a gun.

In resolving this issue, the starting point is the language of Rule 3.8, which provides:

The prosecutor in a criminal case shall:
....
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows, or reasonably should know, either tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor ....

Under the plain language of the rule, a prosecutor is obligated to disclose what the prosecutor "knows" to be exculpatory information. The formal charges in this matter do not contain an allegation that the respondent knew that a third-hand narrative relating to Kristyn's sister discovering a .22 cal. revolver could be exculpatory. Indeed, from forensics, the respondent knew that Kristyn's husband was killed with a different caliber weapon.

Apart from a prosecutor "knowing" information is exculpatory, Rule 3.8(d) provides a second path for disclosure-that is for situations in which a prosecutor "should know" that information is exculpatory. However, pursuant to an amendment to Rule 3.8(d), the touchstone for when a prosecutor is tasked with predicting any given piece of information could be exculpatory is reasonableness.

It is perhaps no coincidence that Rule 3.8(d) uses the term "reasonabl[e]," because the Supreme Court has restricted what has become known as the Brady rule by employing the same term: "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (emphasis added).

The majority of this court declares that Rule 3.8(d) is "coextensive" with the Brady rule. In re: Ronald Seastrunk , 2017-0178, op. at 518-19 (La. 10/ 18/17). The majority's comparison of Rule 3.8(d) to the Brady rule is useful, but only to a point. By its very nature, the Brady rule is applied with the benefit of hindsight, i.e. , after the trial. See Bagley , 473 U.S. at 682, 105 S.Ct. 3375 (indicating that the materiality of exculpatory evidence is evaluated in reference to whether "the result of the proceeding would have been different.").

I fully agree with the majority that a prosecutor's responsibility in evaluating what to disclose is weighty, and the majority aptly indicates that a prosecutor has a "solemn duty" to meet "a high ethical standard." In re: Ronald Seastrunk , op. at 517. However, Rule 3.8(d) is not structured such that a prosecutor must have omniscient or clairvoyant powers to meet those demands.

Instead of requiring a prosecutor to unerringly predict the future of a trial, complete with all strategies that might be employed by the defense, Rule 3.8(d) requires a case-by-case examination of the prosecutor's conduct, primarily in the context of when it occurred. Here, a narrative to the effect that Kristyn at one time kept a .22 cal. gun was not information that the prosecutor "reasonably should know, either tends to negate the guilt of the accused or mitigates the offense." Rule 3.8(d). As noted earlier, the respondent knew Kristyn's husband was killed by a weapon of a different caliber. Should the respondent have, therefore, known that the gun possession narrative could be exculpatory? The mere fact Kristyn may have kept a gun in her closet, years before the murder, does not establish that she ever fired the gun or knew how to fire the larger caliber weapon used to kill her husband. In fact, the detective who learned of the gun possession narrative also learned from Kristyn's mother that her mother took the gun from Kristyn's closet and that Kristyn did not even know how to uncock the gun. These facts do not undermine Kristyn's trial testimony that she was not familiar with guns.

In sum, too many leaping inferences would be required to transform the narrative of Kristyn keeping an unrelated gun in her closet several years before the murder, into evidence that "tends to negate the guilt of the accused or mitigates the offense." Rule 3.8(d). The prosecution actually used the gun possession narrative in the third trial, which resulted in a conviction, underscoring that the narrative was not exculpatory. Although I do not want to detract from the focus of Rule 3.8(d) being on what the prosecutor reasonably should know at the time, this court does have the unique benefit of evaluating respondent's conduct in the hindsight context of three trials, and observing that it was only the third trial, in which the gun possession narrative was adduced, that resulted in a conviction. Thus, I find from both the vantage of the circumstances before the third trial and with the benefit of hindsight (which is essentially the inquiry presented by the majority), that there was no reason the respondent "reasonably should know" that the gun narrative was exculpatory for purposes of Rule 3.8(d).

To reiterate, a prosecutor's responsibility to identify information that must be disclosed to the defense is a weighty responsibility. Fundamental fairness and due process within the criminal justice system depend on prosecutors meeting this responsibility. See Brady , 373 U.S. at 87, 83 S.Ct. 1194 ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). In a criminal case, to meet the demands of our state and federal constitutions, "[t]his means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence." Kyles v. Whitley , 514 U.S. 419, 439, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Lawyer disciplinary proceedings have a related, but slightly different-set of concerns, inasmuch as "disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct." In re Fahrenholtz , 17-0261, p. 7 (La. 4/7/17), 215 So.3d 204, 208. For purposes of lawyer discipline, I find the text of Rule 3.8(d) sets a sufficiently descriptive standard for evaluating a prosecutor's conduct, requiring disclosure of what the prosecutor actually "knows" or "reasonably should know" at the time to be exculpatory material. Here, I agree with the majority that the respondent did not violate Rule 3.8(d).

Hughes, J., concurs and assigns reasons.

I concur in the result. There were others more culpable in this case than respondent and I do not believe any discipline is appropriate.

      Detective Ortiz testified the material was omitted because he believed it to be hearsay.

      The Judiciary Commission of Louisiana now has jurisdiction over Mr. Westerchil, and the disciplinary board has the option of transferring its file on his alleged attorney misconduct to the Commission for further review and possible investigation as occurred in In re: Hughes , 03-3408 (La. 4/22/04), 874 So.2d 746.

      Rule 3.8(d), first adopted in 1986, and effective January 1, 1987, is modeled after the American Bar Association's rule of the same designation, with one significant change that was added in 2006. According to this Court's "Invitation to Comment" on proposed changes to 3.8(d), the 2006 amendment was at the request of the LDAA, and added the phrase "or reasonably should know" after "make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows."
      See https://www.lasc.org/la_judicial_entities/documents/INVITATION_TO_COMMENT_RULE_3_8(d).pdf.

      In a footnote, the Cousin court, in an opinion by Justice Lemmon, stated:
      The prosecutor did not disclose this obviously exculpatory statement to the defense prior to trial, as required by Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Kyles v. Whitley , 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The defense discovered this information through an anonymous communication during the trial, but after completion of the guilt phase.
      Cousin, supra , at 1066.

      We are aware that courts of other states have interpreted Jordan in different ways. In In re: Sharon Riek , 350 Wis.2d 684, 834 N.W.2d 384 (2013), the Wisconsin Supreme Court interpreted Jordan as holding that the prosecutor's ethical duty was coextensive with the duty under Brady . In contrast, in In re: Kline , 113 A.3d 202 (D.C. 2015), the District of Columbia concluded that Jordan rejected the idea that prosecutors had a degree of discretion in determining materiality. However, we specifically note here that this Court in Jordan did not reach the issue we are faced with today: namely, whether the duty outlined in Rule 3.8(d) of the Louisiana Rules of Professional Conduct is broader than the duty proscribed in Brady .

      Although we recognize it is not necessarily a valid defense to the allegations against respondent, we find it worth noting that the defense, upon receiving the previously undisclosed hearsay evidence regarding the revolver, did not utilize the information during the third (and final) trial of Justin Sizemore.

      But see In re Larsen , 379 P.3d 1209 (Utah 2016) (holding that the standards in Brady and a prosecutor's ethical obligations to disclose favorable material are "distinct"); In re Kline , 113 A.3d 202 (D.C. 2015) (D.C. version of the rule does not include "materiality" limitation); Schultz v. Comm'n for the Lawyer Discipline of the State Bar of Tex. , No. 55649, 2015 WL 9855916, at 1 (Tex. Bd. of Disciplinary App. Dec. 17, 2015) (concluding that Texas Rule 3.09(d) is "broader than Brady "); In re Disciplinary Action Against Feland , 820 N.W.2d 672 (N.D. 2012) (rejecting argument that North Dakota equivalent to NY Rule 3.8(b) is coextensive with Brady ); see also, e.g., Brooks v. Tenn. , 626 F.3d 878, 892 (6th Cir. 2010) ("[T]he Brady standard for materiality is less demanding than the ethical obligations imposed on a prosecutor."). Similarly, the Supreme Court of Massachusetts recently amended its version of Rule 3.8 and added a comment clarifying that "[t]he obligations imposed on a prosecutor by the rules of professional conduct are not coextensive with the obligations imposed by substantive law." See Mass. S. Ct. Order dated Jan 7, 2016, available at www.mass.gov/courts/docs/sic/rulechanges/rule-change-sic-rule-307-january-2016.pdf.

      See In re: Sharon Riek , 350 Wis.2d 684, 834 N.W.2d 384 (2013) ; Disciplinary Counsel v. Kellogg-Martin , 124 Ohio St.3d 415, 923 N.E.2d 125 (Ohio 2010).

      We also note that although ODC proposes what amounts to a rule change through judicial interpretation, this particular forum is not appropriate for such action. Pursuant to Article V, Sections 1 and 5 of the Louisiana Constitution of 1974, and the inherent power of this Court, procedural and administrative rules are created, enacted, and amended through a diligent process dictated by this Court. Should ODC seek to change a particular rule, it should do so through the proper channels.

      "Bar disciplinary matters fall within the original jurisdiction of this court. La. Const. art. V, § 5 (B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence ." In re Banks , 09-1212, p. 10 (La. 10/2/09), 18 So.3d 57, 63 (citing In re Quaid , 94-1316 (La. 11/30/94), 646 So.2d 343, and Louisiana State Bar Ass'n v. Boutall , 597 So.2d 444 (La. 1992) (emphasis added).

      Respondent also argued in brief to this Court, as he did previously, that in the event we find a violation of Rule 3.8(d), he is immune from discipline under Rule 5.2(b) of the Rules of Professional Conduct, which provides that "[a] subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty." Because we find ODC did not meet its burden of proof in establishing a violation of any ethical duty, we pretermit any discussion of this issue.

      According to the formal charges, a "detective ... learned that ... Kristyn's sister ... Misty, had been present with their mother some two years earlier when they discovered a .22 cal. revolver which Kristyn had apparently stolen from her mother and concealed in her personal belongings." Misty shared this information with her husband, who in turn shared it with a detective, who in turn provided this information to the prosecution.

      In the original "Invitation to Comment," the proposal was to disclose information "that a reasonable prosecutor would know," and this court's ultimate revision of Rule 3.8 modified this wording slightly to require disclosure of what a prosecutor "reasonably should know" to be exculpatory. See"Invitation to Comment" on proposed changes to Rule 3.8(d) (available at https://www.lasc.org/la_judicial_entities/documents/INVITATION_TO_COMMENT_RULE_3_8(d).pdf); see also Order to Amend Rule 3.8(d) of the Louisiana Rules of Professional Conduct (available at http://www.lasc.org/rules/orders/2006/Rule_3_8(d).pdf).

      The Bagley Court began its opinion by reciting: "In Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), this Court held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.' " Bagley , 473 U.S. at 669, 105 S.Ct. 3375.


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    STATE of Louisiana v. Calvin Louis NOEL, III aka Calvin Noel
    No. 2016-K-0043
    Supreme Court of Louisiana.
    October 18, 2017
    Edward Kelly Bauman ; For Applicant.
    LAFAYETTE PARISH DISTRICT ATTORNEY'S OFFICE, Hon. Keith A. Stutes, District Attorney, Cynthia Kelly Simon; For Respondent.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF LAFAYETTE
   PER CURIAM

On March 22, 2011, a Lafayette police officer, who was investigating a possible car burglary, stopped defendant, who was walking down the middle of the road. As the officer patted him down, defendant told him that he "had a gun in his hip." The officer determined from his computerized database system that defendant had prior felony convictions so he confiscated the gun and arrested him for being a felon in possession of a firearm.

Defendant was charged by bill of information with possession of a firearm by a person convicted of certain felonies, La.R.S. 14:95.1. He pleaded not guilty. Pursuant to defendant's pretrial motion, a sanity commission was appointed on January 13, 2013, to determine his competency to proceed as well as offer an opinion as to his sanity at the time of the offense.

The two members of the sanity commission agreed that defendant was competent despite his chronic paranoid schizophrenia. They noted his history of repeated psychiatric hospitalizations and his paranoia, grandiosity, and impulsivity. They also noted his tattoos (which included "insane" on his right hand and "crazy" on his left) and that he was presently experiencing auditory hallucinations directing him to "do bad stuff." They recommended psychiatric treatment. Nonetheless, they also found that defendant understood his rights, the proceedings, and the nature of the charge against him, although one doctor expressed concern that defendant's current mental condition may interfere with his ability to assist counsel in his defense. They also opined that defendant's mental illness did not cause him to commit the crime and that he appreciated the difference between right and wrong at the time of the offense. On May 23, 2013, the trial court found defendant competent to proceed based on these findings.

On October 17, 2013, 11 days before the scheduled trial date, defendant filed a motion to amend his plea to not guilty and not guilty by reason of insanity. At the same time, defendant filed a motion to quash the bill of information based on the unconstitutionality of La.R.S. 14:95.1. The trial court denied the motion to amend the plea stating that it was filed too close to the trial date and noting that both members of the sanity commission had opined that defendant was sane at the time of the offense. However, the trial court also stayed the proceedings because review of the constitutionality of La.R.S. 14:95.1 was pending in this court in another case.

Defendant's trial ultimately commenced about a year later on September 2, 2014. A Lafayette Parish jury found defendant guilty as charged. The trial court sentenced defendant to 15 years imprisonment at hard labor without parole eligibility and fined him $2,500.

The court of appeal affirmed defendant's conviction and sentence in a split panel decision. State v. Noel , 15-0617 (La. App. 3 Cir. 12/9/15), 181 So.3d 223. The panel agreed that defendant's schizophrenia and history of psychiatric hospitalizations provided "an indicia of insanity," i.e. an evidentiary basis for a change in the plea. The majority, however, found that the motion to amend the plea was filed too close to the scheduled trial date (and too long after the sanity commission findings on which the motion relied). Therefore, "[c]onsidering the heightened burden that exists the closer to trial a request to amend the plea is made," the majority found that "the trial court did not err in finding no good cause and denying defendant's request to amend his plea." Noel , 15-0617, pp. 24-25, 181 So.3d at 238.

Judge Conery dissented from the majority's finding that there was not good cause to allow defendant to amend his plea. The dissent found it "clear from the record that counsel did not file the Moton to Amend as a 'delay tactic' or to achieve a 'tactical advantage.' " Noel , 15-0617, p. 3, 181 So.3d at 239. Judge Conery also would have evaluated the motion to amend the plea in the broader context of the nearly one-year-long delay while waiting until the constitutionality of La.R.S. 14:95.1 was settled.

Therefore, according to Judge Conery, "[t]he 'timeliness' of the motion should not have been a deciding factor, as this case was not going to trial until after [the constitutional question was resolved]." Noel , 15-0617, p. 4, 181 So.3d at 240. Because refusing to permit defendant to amend his plea "deprived the defendant of his only realistic available defense," Judge Conery would have found that "the trial court abused its discretion by denying the defendant an opportunity to amend his plea and put on a defense." Id. We agree.

Louisiana Code of Criminal Procedure article 561 provides:

The defendant may withdraw a plea of "not guilty" and enter a plea of "not guilty and not guilty by reason of insanity," within ten days after arraignment. Thereafter, the court may, for good cause shown, allow such a change of plea at any time before the commencement of the trial.

This court summarized the jurisprudence applying that article in State v. Miller , 05-1826 (La. 6/29/07), 964 So.2d 911. Notably, that jurisprudence includes State v.Taylor , 254 La. 1051, 229 So.2d 95 (1970) and State v. Delpit , 341 So.2d 876 (La. 1977), in which this court reversed convictions because district courts had not permitted defendants to amend their pleas despite imminent trials. This court observed that "in neither Taylor nor Delpit did this court suggest that the defense was required to make a threshold demonstration that the defendant's history of mental illness manifested itself at the time of the offense in order for the trial court to grant the motion to change the plea to include not guilty by reason of insanity." Miller , 05-1826, p. 19, 964 So.2d at 922 (footnote omitted). To the extent the district court found the question of good cause settled by the opinions of the sanity commission physicians that defendant was not insane at the time of the offense-while ignoring his extensive psychiatric history-the district court erred. See Miller , 05-1826, p. 20, 964 So.2d at 923 ("Although an indicia of insanity at the time of the offense may be a relevant consideration, such cannot be the sole determinative factor in deciding whether a defendant may change his plea pursuant to Article 561. The language of Article 561 does not obligate the defendant to prove his insanity at the time of the offense to change his plea. Further, the defense of insanity at the time of the offense is ultimately an affirmative defense which must be decided by the factfinder at trial. LSA-C.Cr.P. art. 652.").

We need not determine here, however, whether defendant's motion to amend the plea, which was filed 11 days before the scheduled trial date, came too late. While it is "the intent of the article ... to prevent the defendant from filing a last minute change of plea so as to gain a strategical and tactical advantage," Miller , 05-1826, p. 20, 964 So.2d at 923, no such strategy or tactic is apparent under the circumstances here. Pending at the same time as defendant's motion to amend the plea was a motion to quash based on the unconstitutionality of La.R.S. 14:95.1, which all parties appeared to agree necessitated suspending further proceedings until the constitutional question could be resolved. So while "defendant's burden of showing good cause for a change of plea logically increases each day that his trial date nears," Miller , 05-1826, p. 20, 964 So.2d at 923, the trial court's decision to continue the matter pending a long appellate review process removed any likelihood that defendant was engaging in a dilatory tactic. The " 'good cause' of Article 561 is shown when the defendant produces an indicia of insanity and shows the plea is not changed as a dilatory tactic to achieve a strategic advantage."

Miller , 05-1826, p. 21, 964 So.2d at 923. We agree with the court of appeal that defendant produced an indicia of insanity and we further agree with Judge Conery that the district court erred in finding good cause was not shown because defendant was engaging in a dilatory tactic. Accordingly, we reverse the court of appeal, vacate the conviction and sentence, and remand for a new trial.

REVERSED AND REMANDED

GUIDRY, Justice, dissents

Guidry, J., dissents.


text:
    Nikola P. VEKIC v. Dragutin POPICH, Mary A. Popich & Helen Harris Popich
    No. 2017-C-0698
    Supreme Court of Louisiana.
    October 18, 2017
    ALVIN J. BORDELON JR., LLC, Alvin Bordelon, Jr. ; O'BRYON & SCHNABEL, APLC, Marta-Ann Schnabel ; THE LAW OFFICE OF REGINA SCOTTO WEDIG, Regina Carol Scotto Wedig; For Applicant-Plaintiff.
    FLANAGAN PARTNERS LLP, Thomas More Flanagan, Andy Joseph Dupre ; Helen Popich Harris; TABARY & BORNE, LLC, Paul A. Tabary, III ; THE DILL FIRM, James Michael Dill ; For Respondent-Defendant.
    ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ST. BERNARD
    GENOVESE, Justice This case concerns a contractual dispute regarding which party is entitled to the proceeds from the British Petroleum ("BP") Deepwater Horizon oil spill settlement for damages to certain oyster leases. As discussed in detail below, we disagree with the Court of Appeal and find that the trial court did not err in accepting evidence beyond the four corners of the contract at issue and did not manifestly err in its factual findings and ultimate interpretation that the agreement at issue entitled the plaintiff to the settlement proceeds for property damage to the leases at issue.
    FACTUAL AND PROCEDURAL HISTORY
    In 2009, plaintiff Nikola Vekic (Mr. Vekic) sought to buy three oyster leases which were jointly owned by Dragutin Popich (Mr. Popich) and his daughters Mary Popich and Helen Popich Harris (Mrs. Harris) (collectively "the Popich family"). Although the parties dispute the content of the discussions which took place between them regarding the sale of the three oyster leases, it is undisputed that the Popichs' lawyer, Roger Harris (Mr. Harris, husband of Mrs. Harris), transmitted a letter stating that Mr. Popich was "unwilling to do a credit sale." Instead, Mr. Harris drafted and submitted an agreement entitled "Sublease Agreement With Option to Purchase" ("agreement"), along with a proposed act of sale to Mr. Vekic, who reviewed the documents along with his attorney. Mr. Vekic executed the sublease agreement on April 14, 2009, without raising any issues regarding its contents.
    Under the agreement, Mr. Vekic agreed to sublease three oyster leases comprising approximately 451 acres of State-owned waterbottoms in Bay Boudreau, St. Bernard Parish, from the Popich family. Although Mr. Popich had been an oyster fisherman, he had not recently worked the leases at issue and was retiring from the oyster business. The amount of total "rent" due was $90,000, with $30,000 due upon execution of the agreement (April 14, 2009) and three installments of $20,000 due annually thereafter on the anniversary of the agreement's execution. Mr. Vekic's option to purchase under the agreement was "exercisable at any time on or before April 30, 2012." To exercise the option, the agreement required Mr. Vekic to provide written notice to the Popich family, and "any rental payments paid pursuant to [the agreement would] be credited against the purchase price in dollar-for-dollar amount." The agreement stipulated the total purchase price was to be $90,000, with no additional consideration required for the exercise of the option and with the leases being sold "as is."
    The terms of the artfully-crafted agreement differed significantly from a typical lease or sublease in that the Popich family transferred all of the rights and responsibilities of ownership to Mr. Vekic without the benefit of a formal transfer of title between the parties. Mr. Vekic was bound to pay the full $90,000 in "rent" regardless of whether the leases were damaged or were even subject to a complete taking.
    Mr. Vekic could not under any condition terminate the lease and was responsible for fulfilling all of the legal requirements to maintain the leases, including paying the $2 per-acre lease fee to the Department of Wildlife and Fisheries.
    Importantly, as will be discussed in detail, Section 9 of the agreement, entitled "Proceeds for Damage to Oyster Lease(s)," provided that:
    Claims for damages to or destruction of any portion of the subleased property shall be adjusted by Lessee ; however, Lessor, at his sole option and discretion, shall have the right to join with Lessee in adjusting any such claims. Lessee shall have the right to proceeds derived from such claims in an amount sufficient to reimburse Lessee for Lessee's actual loss (i.e., the cost of bedding oysters in the damaged area); proceeds in excess of such reimbursed amount shall be received by Lessor as advance Rent.
    (Emphasis added.) Upon execution of the agreement in April 2009, Mr. Vekic issued the Popich family a check for $30,000, which indicated the payment was for "sublease agreement." The sublease was recorded with the Department of Wildlife and Fisheries, and Mr. Vekic was recorded as an agent entitled to work the leases, although the Popich family remained leaseholders of record.
    On April 10, 2010, Mr. Vekic paid an installment of $30,000 to the Popich family, which was $10,000 above the $20,000 annual installment required by the agreement. This payment brought the total "rent" paid for the leases up to $60,000 of the $90,000 purchase price as of that date. Ten days later, the British Petroleum Deepwater Horizon well exploded ("the spill"). After the spill, the area where the leases at issue were located was closed off from fishing activities for a considerable amount of time. Mr. Vekic paid the Popich family the remaining $30,000 he owed under the agreement in May, 2011. On June 19, 2011, Mr. Vekic exercised his option to purchase, and the parties executed the act of sale, which had been prepared in 2009 along with the original agreement, without any modifications ("Act of Sale").
    In the wake of the spill, a class action lawsuit was filed against BP. BP and the Plaintiffs' Steering Committee agreed upon a settlement in 2012 which, among other things, established a "compensation plan" for oyster leaseholders. Mr. Vekic filed a claim with the Deepwater Horizon Economic Claim Center ("DHECC") in June 2012 for his and his father's lease holdings, which comprised approximately 2000 acres. Mr. Vekic's claim to the DHECC also included the leases at issue. In January 2013, Mrs. Harris, an attorney, prepared and filed claims for the Popich family, informing the DHECC of the 2009 agreement with Mr. Vekic and post-spill Act of Sale.
    When Mr. Vekic received a proposed settlement offer for his lease holdings, the DHECC excluded the subleased property from Mr. Vekic's recovery. The Popich family, on the other hand, received a proposed settlement offer for the leases at the $2000 per acre amount provided by the compensation plan for the area which included the leases herein for a total of $901,999.50. Accepting this offer, the Popich family executed a release of any claims "arising out of, due to, or relating in any way to, directly or indirectly, the Deepwater Horizon Incident."
    Mr. Vekic filed the instant suit after the Popich family received the first round of settlement proceeds, seeking a declaratory judgment that he was entitled to the proceeds. Before the Popich family received their second round of payments under the settlement offer, the trial court ordered that the proceeds be placed in an IOLTA account, pending resolution of the dispute between the parties. After amending his petition twice, Mr. Vekic alternatively argued that the sublease was a disguised sale and security agreement. The trial court rendered its first judgment in Mr. Vekic's favor in January 2016. The Popich family filed a motion for new trial because the judgment was not dispositive of all issues, which motion was granted. The trial court rendered a second judgment in March 2016. The second judgment awarded Mr. Vekic the settlement proceeds less ten percent attorney's fees on past BP settlement proceeds and costs pursuant to the contingency fee agreement the Popich family had executed with Mrs. Harris. All future payments of BP settlement proceeds were awarded to Mr. Vekic.
    The Popich family appealed. In its opinion, the Fourth Circuit reversed the trial court, finding that the contract on its face clearly and expressly constituted a sublease and finding that Section 9 "d[id] not address whether Mr. Vekic or the Popich family would get damage proceeds exceeding bedding reimbursement and advance rent." Vekic v. Popich, 16-508, p.12 (La.App. 4. Cir. 3/29/17), 215 So.3d 483, 490. Citing Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267, p. 13 (La. 10/25/11), 79 So.3d 246, 256-57, the Court of Appeal stated that "Louisiana courts have consistently held that a purchaser is precluded from claiming damages to property that occurs prior to the purchaser's acquisition of the property." Vekic, 215 So.3d at 490. Finding Mr. Vekic did not obtain an express assignment of claims for property damage prior to the 2011 Act of Sale, the Court of Appeal thus concluded that "he is not entitled to the proceeds under the sublease with option to purchase or the law." Id. at 491. We disagree.
    DISCUSSION
    Although, as the Court of Appeal correctly noted, a purchaser is precluded from claiming property damages which occurred prior to the purchaser's acquisition of the property as set forth in Eagle Pipe , the facts in this case are readily distinguishable from this Court's ruling in Eagle Pipe . Rather, as described above, the original agreement confected by the parties specifically contemplated and included Section 9, entitled "Proceeds for Damage to Oyster Lease(s)." Section 9 specifically states, "Claims for damage to or destruction of any portion of the subleased property shall be adjusted by Lessee ...." (Emphasis added.) The BP compensation plan for oyster leaseholders was specifically designed to resolve property damage claims for oyster leases. The use of the word "shall" indicates a mandatory requirement; thus, the Popich family expressly assigned their right to adjust all damage claims to Mr. Vekic, and Mrs. Harris's filing of the claim with the DHECC violated the contract between the parties.
    Mrs. Harris specifically testified at trial that, although reimbursement of "actual costs" and payment of "advance rent" were contemplated under Section 9, the Popich family did not contemplate that any possible property damages could surpass the amount of rent due. As the sublease did not specify which party would be entitled to damages in excess of the $90,000 in "rent," and given the parties' competing interpretations on this point, we find the trial court correctly determined that the agreement was ambiguous and looked to extrinsic evidence and testimony to determine the parties' intent. "Interpretation of a contract is the determination of the common intent of the parties." La.Civ.Code art. 2045.
    Although the agreement does not expressly provide that the excess damages would go to Mr. Vekic, it does not allow anyone other than Mr. Vekic to adjust claims for damages, nor does it provide that the Popich family may receive anything other than the $90,000 specified in "rent" (along with fees or costs associated with late payment or default). Section 9 of the agreement reflects that the parties clearly contemplated that the agreement would cover all claims for property damages (as indicated by the requirement that the claims shall be adjusted by the lessee). Despite the unexpected large amount of damage proceeds in controversy, this subject matter is clearly within the purview of this agreement. Thus, it was the trial court's task to determine the intent of the parties and allocate the excess damages accordingly. The trial court's findings of facts in this respect are subject to a review for manifest error, and the Court of Appeal erred in conducting a de novo review and in giving no deference to the trial court.
    Without even going past the four corners of the agreement between the parties, the agreement itself contains support for the trial court's conclusion that it was the intent of the parties that the Popich family receive $90,000 for the transfer of oyster leases and nothing more. "Each provision in a contract must be interpreted in light of the other provisions that each is given the meaning suggested by the contract as a whole." La.Civ.Code art. 2050. In addition to Section 9, the agreement between the parties repeatedly shifts all responsibility and the risk of loss for the oyster leases to Mr. Vekic. Section 6.02 of the agreement, entitled "No Termination," provides:
    Except as expressly provided herein, this Sublease shall not terminate, nor shall Lessee have any right to terminate this Sublease, nor shall Lessee be entitled to any abatement or reduction of Rent or Additional Rent hereunder, nor shall the obligations of Lessee under this Sublease be affected by reason of: (i) any damage to or destruction of all or any part of the subleased property from whatever cause; (ii) the taking of the subleased property or any portion thereof; (iii) the prohibition, limitation or restriction of Lessee's use of all or any part of the subleased property, or any interference with such use; (iv) any default on the part of the Lessor under this sublease, or under any other agreement to which Lessor and Lessee may be parties; or (v) any other cause whether similar or dissimilar to the foregoing, any present or future law to the contrary notwithstanding. It is the intention of the parties hereto that the obligations of Lessee hereunder shall be separate and independent covenants and agreements, [sic] that the Rent, the Additional Rent and all other sums payable by Lessee hereunder shall continue to be payable in all events and that the obligations of Lessee hereunder shall continue unaffected.
    In sum, this provision provides that Mr. Vekic must pay the "rent" specified regardless of whether the property is destroyed in whole or in part, whether it is taken in whole or in part, or whether the Popich family defaults in any manner.
    The lease also contemplates how proceeds as a result of expropriation or condemnation will be distributed, providing:
    10.02 Complete Taking. If [a complete taking occurs] during the Term, Lessor shall retain the first $90,000.00 of such amounts awarded or paid less the total amount of Rent previously paid by Lessee under this Sublease; any remaining amounts shall be paid to Lessee ....
    (Emphasis added.) Although the Popich family testified they had not contemplated that property damages could be more than $90,000, they clearly did contemplate that a complete taking could occur for which payment would surpass $90,000. In this case, the agreement provides that the Popich family is entitled to the first $90,000 paid, minus the total amount of rent previously paid. Mr. Vekic is entitled to the remainder. Interpreting the provisions of this contract in light of one another, as contemplated by La.Civ.Code art. 2050, the agreement evinces the parties' intent that every precaution be taken to ensure that the Popich family received $90,000 and nothing more, and that all liability, risk, and responsibility regarding the leases shifted to Mr. Vekic as of the time of the signing of the agreement, even before the leases were formally transferred to Mr. Vekic.
    Furthermore, though this agreement was labeled a "sublease," it had little or no indicia of a lease. It was essentially a transfer of an interest in and to the oyster leases with a guaranteed payment by Mr. Vekic of $90,000 to the Popich family. As set forth in Section 18.02 of the agreement, captions and headings "shall not be considered in any manner in the construction or interpretation of the Lease." Therefore, the fact that this agreement was labeled a "sublease" is of no significance in determining which party is entitled to property damage.
    Looking at the extrinsic evidence, the parties' testimony demonstrates that the Popich family's sole concern with the agreement was insuring that they received $90,000 and that Mr. Vekic assumed all risk and responsibility for the leases. Consider the following colloquy between Mr. Vekic's counsel and Mrs. Harris:
    [Counsel for Mr. Vekic] Q. Okay. And is it true that the Popich family was agreeable to the payment of the 90,000 over time, but wanted to hold title as security for payment?
    [Mrs. Harris] A. Yeah, we weren't transferring title until payment had been received in full.
    Q. And the reason for that was you wanted security in case he didn't pay?
    A. Well, I just wanted to make sure my father got paid.
    ....
    Q. The way you looked at [it] is if he didn't pay it, you could boot him off the leases? You didn't have to sue him?
    A. I wouldn't have to sue him to get my leases back, right.
    Mr. Vekic similarly testified that it was his understanding that the Popich family wanted $90,000 in payments over three years in return for the leases. He testified the significance of three years is that it represented the normal length of time that it took for oysters to spawn and grow to a harvestable size. Although Mr. Vekic normally bought leases outright, he explained to Mr. Popich that he wanted to pay for the leases at issues over three years but that he "didn't know how [he] would go about doing this." Mr. Vekic testified that Mr. Popich replied as follows:
    And then he told me that his son-in-law [Mr. Harris] was an attorney, and his words to me were that the Louisiana law is crooked was the term he actually used, and that if he turned the leases over to me, and I didn't make that payment in time... He said I have no doubt in my mind that you wouldn't [sic] pay, but he said if you didn't then I would have to sue you and chase you, and you would have the leases, and it would be a lot of commotion. Whereas, if I hold them, and you don't pay me I got that for collateral.
    Mr. Vekic further testified that Mr. Harris compared the transaction to the credit sale of a vehicle. Mr. Vekic also stated that he was the one who brought up the issue of damages, because he was concerned that he would not be the leaseholder of record with the Department of Wildlife and Fisheries. According to Mr. Vekic:
    [Mr. Vekic]. A. He [Mr. Harris] assured me that I would be covered under damages. I'm doing the work. It was just back to like owning a vehicle that I would be entitled to as long as I paid the $90,000. He just was covering his $90,000. I guess you would call it a security interest.
    [Counsel for Mr. Vekic] Q. When Mr. Harris told you that you would get the damages, did he discuss with you what the bargain was to him or to the Popichs, what they wanted out of the deal?
    A. To me it was clear that they w[ere] holding that for the 90,000 and only the 90,000. There [was] never any discussion about he'd get a percentage of the catch or the sack or anything like that. It was clearly, to me, that they w [ere] holding the title. As long as I paid the balance, then I would get clear title.
    Mr. Harris, husband of Mrs. Harris and the attorney who drafted the agreement, testified that Mr. Popich told him he was not willing to do a credit sale after Mr. Harris had explained to him what it was. The Court asked Mr. Harris directly, "Basically, the reason was, the sole reason was to avoid potential litigation in case he didn't pay?" Mr. Harris responded "Yes, sir." Mr. Harris denied ever telling Mr. Vekic that he was entitled to damages or likening the agreement to the credit sale of a vehicle. However, Mr. Harris did agree that the subject damages, though not of this magnitude, were contemplated by the agreement.
    Finally, Mr. Popich himself testified, stating that he told Mr. Vekic that he would not sell the three leases for less than $90,000. He also said, "Little Nicky call[ed] me [to ask] if I sublease it... who's going to have damage. I told him you could have damage because I'll-(unintelligible).... Then he sa [id] okay, that we finished with that." Mr. Popich also testified that he contemplated possible damage for pipeline digging but never anything like the BP spill.
    The trial court explained orally to counsel for the Popich family that,
    My reasoning in this whole case, ruling as I did, was the parties didn't contemplate this issue. But like I just reiterated, the only thing [the Popich family] expected was the $90,000 to be paid over the three-year period and that was it and everything-the lease was going to go to [Mr. Vekic].
    We agree that the agreement between the parties, when reviewed as a whole and in light of the parties' testimony, evidences the parties' intent that payment of $90,000 rent (but no more, except in the case of late payment or default) to the Popich family be insured in every possible circumstance. Rather than protecting their ability to claim property damages against third parties, the Popich family's attorney crafted an agreement which actually requires that Mr. Vekic "adjust" claims for property damages. Here, BP agreed to settle claims for property damage to oyster leases in order to avoid trial, and the Popich family settled a claim which was clearly Mr. Vekic's to adjust under the agreement. Although the Popich family asserts that the term "adjust," which is not defined within the agreement, does not encompass "settling" or "releasing" claims as the Popich family did with the BP claim, we find this argument unavailing. The first definition of the term "adjust" in Merriam-Webster's dictionary is as follows:
    1. a. to bring to a more satisfactory state ... :SETTLE, RESOLVE -< orderly ways of [adjusting] conflicts> :RECTIFY < [adjusting] the error>.
    Settlement of a claim is within the plain meaning of the word "adjust" in this context.
    The Popich family relies heavily on the fact that Mr. Vekic has not proved actual damages, that Mr. Vekic's claim as an oyster leaseholder of the subject property was denied by the DHECC, and that an award for property damages would amount to a windfall for Mr. Vekic. However, our legal analysis does not hinge on Mr. Vekic's ability to prove his property damage claim against BP was meritorious. The matter before us is one of contractual interpretation to determine the agreed-upon allocation of rights and obligations between the parties. Our role is not to litigate claims of BP's tortious conduct or to interpret the terms of the BP settlement; rather, our duty herein is to determine which party is entitled to bring those claims under the agreement at issue. The DHECC's denial of Mr. Vekic's claim as leaseholder of the subject property is not relevant vis-à -vis the parties to this agreement.
    Likewise, proof of actual damages is not required in order for this Court to determine that claims for such damages beyond the $90,000 due to the Popich family in rent belong to Mr. Vekic under the agreement between the parties. Nevertheless, we note that the plaintiff class in the suit against BP had been preparing studies and gathering experts in anticipation of a trial to prove damages to the oyster leases, and it is clear that the BP compensation plan for the "oyster leaseholders" was intended to avoid any such trial. As Judge Barbier stated in his reasons for approving the settlement agreement with BP, "oyster leaseholders are being compensated in the [Oyster Compensation Fund], in part, for out-of-pocket funds to re-cultch or otherwise tend to oyster lease beds, and additional compensation reflects that oyster landings are returning to pre-spill levels more slowly than other species." In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mexico, on Apr. 20, 2010 , 910 F.Supp.2d 891, 958 (E.D. La. 2012), aff'd sub nom. In re Deepwater Horizon , 739 F.3d 790 (5th Cir. 2014).
    Finally, the Court of Appeal found that Mr. Vekic was precluded from entitlement to property damages through its erroneous application of the "subsequent purchaser doctrine" as articulated by this Court in Eagle Pipe , 79 So.3d at 256-57, where we explained:
    [A]n owner of property has no right or actual interest in recovery from a third party for damage which was inflicted on the property before his purchase in the absence of an assignment or subrogation of the rights belong to the owner of the property when the damage was inflicted.
    We find that Eagle Pipe and the jurisprudentially-developed "subsequent purchaser doctrine" do not apply here because, before the damage at issue occurred, the Popich family assigned to Mr. Vekic the express right (and indeed duty) to adjust "claims for damage to or destruction of any portion of the subleased property." With this language, the Popich family specifically contracted away its right to adjust damage claims on the subleased property, reserving only payment of advance rent. Therefore, at the time of the BP spill, the Popich family did not have any right-other than to join with Mr. Vekic to ensure it was paid the full amount in rent-to settle the claims for property damages. This is not a typical purchase of immovable property, as the parties in this case had contemplated that Mr. Vekic would adjust the property damages at issue (although the parties had not anticipated the damages would be in such a large amount) before the damages were incurred. In fact, the seminal Louisiana case annunciating the "subsequent purchaser doctrine" stated:
    It is true, that the purchaser of property is presumed to purchase all actions appurtenant to the property, and necessary to its perfect enjoyment; but as to damages actually suffered before the purchase , we know of no other principles governing the case than those referable to this general provision of the code, that every act of man that causes damage to another obliges him by whose fault it happened to repair it. It is a mere corollary, that the reparation must be made to him who suffered the injury.
    Clark v. Warner , 6 La.Ann. 408, 409 (1851) (emphasis added).
    In other words, the Court found that the personal right of action that arises for property damage belongs to the owner because the owner is the one who suffers the damage at the time it is caused. Here, though the Popich family was technically the leaseholder of record in the Department of Wildlife and Fisheries at the time of the spill, it had already washed its hands of all risk and responsibility related to the oyster leases in return for $90,000 in a contract which could not under any circumstances be terminated by Mr. Vekic. Thus, the "subsequent purchaser doctrine,"
    as developed and articulated in jurisprudence from Clark to Eagle Pipe , does not apply in this case. Furthermore, Eagle Pipe is factually distinguishable, as it involved a suit against a third party for contamination of property. In contrast, the matter before us is a declaratory judgment between the parties of an agreement in which one party (Mr. Vekic) seeks enforcement of that agreement.
    The Court of Appeal correctly notes that the 2011 Act of Sale contained no express assignment of personal rights; however, none was required. Section 17 of the original agreement between the parties provides:
    Waiver and Amendment. No provisions of this Agreement shall be deemed waived or amended except by a written instrument unambiguously setting forth the matter waived or amended and signed by the party against which enforcement of such waiver or amendment is sought. Waiver of any matter shall not be deemed a waiver of the same or any other matter on any future occasion.
    The 2011 Act of Sale did not unambiguously waive or amend Section 9 of the 2009 agreement.
    "When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. " La.Civ.Code art. 2054 (emphasis added). At the heart of this matter is the unique and troublesome form of contract confected by the parties: a "Sublease with Option to Purchase" which shifts all risk to the "lessee," requires him to pay rent under any circumstance and even in the event of the "lessor's" default, requires him to adjust "[c]laims for damages to or destruction of any portion of the subleased property," and provides that he can exercise his option to purchase without paying any additional consideration beyond the required $90,000 in rent. Thus, there is little precedent to serve as a guide in interpreting the intent of the parties in a "contract of that kind," as contemplated by La.Civ.Code art. 2054. However, the record reflects that Mr. Popich gave up the leases at issue upon his retirement from the oyster business. A year before the spill, Mr. Vekic assumed responsibility for these leases. He has now formally purchased them. Oyster farming is a long term endeavor which requires significant investment in improving the quality of the waterbottoms. As shown above, the BP oyster compensation plan for leaseholders was intended to settle claims for damages to waterbottoms. The agreement at issue transferred all responsibility and risk regarding the leases at issue to Mr. Vekic at the time of signing. The Civil Code article from which Louisiana tort law is derived states that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La.Civ.Code art. 2315(A). As this Court stated in Clark, "it is a mere corollary [to La.Civ.Code art. 2315 ] that the reparation must be made to him who suffered the injury." 6 La.Ann. at 409. In this case, that person is Mr. Vekic.
    Finally, Mr. Vekic argues that it was inappropriate to award Mrs. Harris a 10% contingency fee for the first two payments of settlement proceeds along with costs for filing property damage claims with the DHECC. We find the trial court committed no manifest error in finding that Mrs. Harris was entitled to this award.
    DECREE
    For the foregoing reasons, we reverse the Court of Appeal's decision and reinstate the trial court's judgment. REVERSED.
    WEIMER, Justice, concurs in part and dissents in part and assigns reasons.
    WEIMER, J., concurring in part and dissenting in part.

      The $2000 per acre figure came from the oyster compensation plan based on the subject leases' location in "Zone A," the geographic area deemed most affected by the spill.

      Notably, it was the Popich family that argued to the trial court that the agreement was ambiguous. Mr. Vekic asserted that he was entitled to summary judgment under the clear language of the agreement.

      The agreement provides that it shall not terminate "[e]xcept as otherwise expressly provided herein." The only express provisions of this kind allow (1) that termination occurs at the end of the four-year sublease term (Section 2); (2) that the lessor may terminate the lease after "an event of default" (Section 13.02); or (3) that the lessor, at its option, may terminate the sublease upon the lessee's bankruptcy (if permitted by law) (Section 13.04).

      Section 10.03 addresses partial or temporary takings and specifies that such takings shall not result in a reduction of rent. However, it also provides, "Any amounts received by Lessor for such partial or temporary Taking shall be retained by Lessor; the Rent payable after the date of such retention shall be reduced by the amount of such retention."

      In addition to the provisions already discussed, Mr. Vekic was responsible for compliance with all laws and regulations at his expense under the agreement (Section 4.02). The agreement also provided that "[a]ny amount or obligation herein relating to the subleased property which is not expressly declared to be that of Lessor shall be deemed to be an obligation of Lessee to be performed by Lessee at Lessee's expense" (Section 6.01). The agreement further required Mr. Vekic to indemnify and hold harmless the Popich family "from and against any and all claims arising from the Lessee's use of the subleased property" (Section 8.01). Mr. Vekic also "assume[d] all risk of damage to property or injury to persons in, upon or about the subleased property arising from any cause" (Section 8.02).

      Q. All right. So the way you're interpreting, the way you understand it now, okay, and I know nobody thought about the BP spill, but we did think about the possibility of damages to the leases?
      A. Correct.
      Q. Thought that could happen?
      A. Correct.
      Q. We didn't think that there would be damages perhaps of this magnitude?
      A. No sir, not 10 time the value. I don't think anybody contemplated that.

      It is not clear whether the trial court agreed with Mr. Vekic's assertion that the agreement was a disguised credit sale; however, the following comment appears to show that it did: "The intention of the parties in my opinion-even though they didn't anticipate the BP spill-was that your client was going to get $90,000 over the course of three years. No more. No less. If there's any damages occurring to these leases that they bought , they suffer. They're due the damage. If there's any money obtained from the lawsuit due to damage to the lease, they get it." (Emphasis added.) When the Popich family's attorney responds, "I don't see that anywhere in the contract," the trial court replies, "It's not in the contract. But they suffer it. That's the bottom line."

      The Civil Code provides that, "In case of doubt that cannot otherwise be resolved, a provision in a contract must be interpreted against the party who furnished its text." La.Civ.Code art. 2056. It is undisputed that the Popich family's counsel furnished the text of the agreement at issue in this case. However, the agreement contains a provision that "[t]he parties expressly agree that this Agreement resulted from the effort of both parties.... Therefore, this Agreement shall be construed neither against nor in favor of either party...." We need not determine the enforceability of this provision, because the agreement and extrinsic evidence supports the trial court's findings regarding the intent of the parties.

      Adjust, Webster's Third New Int'l Dictionary (2002)(emphasis added).

      We note that the record does contain evidence of potential damages to the leases due to the oil spill, although this finding is not necessary for our determination that Mr. Vekic is entitled to the damage proceeds at issue. In the trial in the present case, the parties presented opposing oyster biologist experts. The Popich family's expert minimized any possible damage to the leases at issue. However, Mr. Vekic's expert, Dr. Edwin Cake, testified that dispersed oil-oil which had been sprayed by the dispersant, Corexit, and sunk into the water column rather than remaining on the surface-affected oyster populations. Oyster fishermen place cultch, i.e., hard substrate in the form of rock, concrete, or shells, to provide a place for seed oysters, or spat, to attach and grow into adults. Dr. Cake testified that it was his opinion "that the cultch material in the area that existed before the spill or existed at the time of the spill had been impacted by the dispersed oil... in this case, it affects the ability of spat to settle on cultch materials that have been impacted by the dispersed oil." Dr. Cake also noted that oyster larvae in the water column at the time of the spill could be affected by the dispersed oil, not being able to close up the way that adult, shelled oysters can. He also stated that during his examination of Mr. Vekic's leases, he "found oysters only growing on areas where Mr. Vekic had planted new cultch material."
      For his part, Mr. Vekic testified that before the spill he had planted a relatively small amount of concrete on the leases. When the lease grounds reopened after the spill, he placed roughly 3000 tons of rock and 2000 yards of oyster shells on the lease, costing roughly $250,000. He stated that, after the spill "you could see the difference. You could see slime on the reefs. You could see reefs that were producing before aren't as time went on. You're not seeing the spawn.... If you didn't put any cultch material after the oil spill, you [were] pretty much done."
      However, Mr. Vekic's counsel also testified "Actual loss relating to the bedding, we concede, he had no actual loss. He bedded no oysters." However, losses related to bedding of oysters are not the only potential damage to the leases. As described above, dispersed oil in the water column can affect any reefs or cultch already in existence as well as the general health of the oyster population in the area.

      Oyster leases are considered incorporeal immovable property pursuant to La.Civ.Code art. 470.

      Because we find that interpretation of the terms of the agreement entitles Mr. Vekic to the damage proceeds, the issue of whether the agreement was a disguised credit sale is pretermitted.

   I agree with my learned colleagues that this dispute is governed by the "unique and troublesome" agreement confected between these parties. See Vekic v. Popich , 170698, Op. at 536 (La. 10/18/17). This matter also presents in a unique posture regarding the ultimate remedy, which the majority acknowledges is guided by no precedent. Id. This agreement has defied being pigeonholed with even the parties sometimes offering different analyses. See id. at 530 n.2. Whether the agreement is a disguised credit sale, a lease, or something else, it would be fair to say the agreement is sui generis .

Ultimately, the parties are bound by the agreement. The majority reverses the court of appeal, but both decisions impose a "winner-take-all" solution. However, in my view, the agreement offers a different resolution:

Lessee shall have the right to proceeds derived from such claims in an amount sufficient to reimburse Lessee for Lessee's actual loss (i.e., the cost of bedding oysters in the damaged area); proceeds in excess of such reimbursed amount shall be received by Lessor as advance Rent.

Vekic , Op. at 538. This provision indicates the Lessee (Mr. Vekic) is entitled "to proceeds derived from ... claims," but with a limitation. The limitation is "an amount sufficient to reimburse" him for "actual loss (i.e., the cost of bedding oysters in the damaged area)." Id. Any amount in excess of what the Lessee proves as "actual loss," is to be received as advance rent by the Popiches. Id. Although the lease elsewhere indicates the rent is $90,000, this provision limits Mr. Vekic to "actual damages.' Id.

The simple fact is that neither party, in confecting this agreement, considered the potential "windfall" resulting from the settlement with BP. The majority acknowledges "the agreement does not expressly provide that the excess damages would go to Mr. Vekic." Vekic , Op. at 530. I agree the parties to the agreement never considered the situation which arose-that the settlement may be in excess of the $90,000 and potentially in excess of Mr. Vekic's "actual loss." However, the agreement does, by its terms, expressly limits Mr. Vekic to "actual loss" with the "excess of such reimbursed amount" going to the Popiches. See id. at 528.

I cannot overlook the efforts of the Popiches to procure the settlement. As the majority notes, when the Popiches filed the claim, they notified the Deepwater Horizon Economic Claim Center of the 2009 Agreement with Mr. Vekic and the post-spill Act of Sale. Significantly, Mr. Vekic filed his own claim, but was denied. Instead of pursuing the claim further, he abandoned his claim and sued the Popiches. This is despite the fact a separate claim opportunity for sublessees like Mr. Vekic was created.

Respectfully, the majority automatically equates the amount of the settlement with the amount of damages Mr. Vekic sustained.

However, the agreement limits Mr. Vekic's right to an amount sufficient to reimburse him for his "actual loss." See Vekic , Op. at 528. Furthermore, settlements can be, but are not necessarily, tethered to actual damages. Particularly here, the Popiches were not obligated to prove damages, but were paid a fixed amount of $2,000 per acre regardless of the amount of provable damages simply because they held a lease with the state at the time of the spill. This amount was paid despite the fact a sublessee's claim was also reserved and available to Mr. Vekic.

Parties settle for many and various reasons: because of a desire to avoid or limit protracted litigation, out of a sense of moral obligation, in an effort to build good will, or to mitigate other damages or future loss of profits.

As the majority notes, counsel for Mr. Vekic conceded there was "no actual loss. He bedded no oysters." Vekic , Op. at 534 n.10. However, there was testimony by Mr. Vekic that he spent approximately $250,000 on rock and oyster shells after the spill to provide cultch on the property so as to remediate the oyster lease. Id.

The majority properly indicates "there is little precedent to serve as a guide" in this unique matter. Id. at 536. Each side sought a windfall from BP. The Popiches succeeded in the BP claim process; Mr. Vekic did not. In effect, the majority is not only rendering a judgment, but awarding specific funds against which the judgment can be executed, which may or may not reflect the "actual loss" limitation in the contract. See Vekic , Op. at 528.

The majority properly cites La. C.C. art. 2054, which provides:

When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

Vekic , Op. at 536. As indicated, the majority also properly acknowledges this matter involves a "unique and troublesome form of contract confected by the parties." Id. at 536. I agree with the majority that "the BP oyster compensation plan for leaseholders was intended to settle claims for damages to waterbottoms" so as to restore the state lands to productivity. Id. I acknowledge many equities lie with Mr. Vekic because, as to this tract, he is incentivized to return the property owned by the state to oyster productivity. As to this tract, the Popiches have no incentive to make this tract productive. There is no obligation for the Popiches to remediate. However, I respectfully disagree with my colleagues in the majority that the agreement provides Mr. Vekic with a right to a portion of the BP claim sufficient to reimburse him beyond his "actual loss." See Vekic , Op. at 528. I believe Mr. Vekic's loss includes the cost to cultch or recultch the oyster beds and to bed the oysters in the damaged area and any other provable "actual loss." Id. This may or may not consume the entire amount of the BP settlement procured by the Popiches. If it does not, since the Popiches have already received the entire rental amount from Mr. Vekic, the trial judge should divide the balance of the proceeds according to "law, equity, or usage" because this agreement did not provide for the settlement windfall the Popiches orchestrated for the mutual benefit of these parties.

      See Vekic , Op. at 536 n.12.

      La. C.C. art. 2054.