Town of Homer d/b/a Homer Memorial Hospital, Theola Corely and Alice Gandy, Individually and On Behalf of All Those Similarly Situated VS Municipal Employees Retirement System of Louisiana and Bobby Hebert, Claire Sarradet, John A. Berthelot, Dudley Dixon, Gerald Johnson, Bill Mulkey and James Petitjean, Individually and In Their Official Capacities as Members of the Board of Trustees of th

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 0899 l f J 9 B D A HOMER MEMORIAL TOWN OF HOMER OSPITAL AND THEOLA CORELY AND ALICE GANDY INDIVIDUALLY AND ON BEHALF OF ALL THOSE INDIVIDUALS SIMILARLY SITUATED 1J VERSUS MUNICIPAL EMPLOYEES RETIREMENT SYSTEM OF LOUISIANA AND BOBBY HEBERT CLAIRE SARRADET JOHN A BERTHELOT DUDLEY DIXON GERALD JOHNSON BILL MULKEY AND JAMES PETIT JEAN INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD OF TRUSTEES OF THE MUNICIPAL EMPLOYEES RETIREMENT SYSTEM OF LOUISIANA Judgment Rendered On Appeal December 21 2007 from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 531 305 Honorable Randy P Zinna Baton Rouge LA Timothy E Kelley Judge Presiding Attorney for Defendants Appellants Municipal Employees Retirement System of LA and Bobby Hebert Claire Sarradet John A Berthelot Dudley Dixon Gerald Johnson Bill Mulkey and James Petitjean Individually and In Their Official Capacities as Members of the Board Of Trustees of the Municipal Employees Retirement System of LA L J Hymel Jr Baton Rouge LA Attorneys for and Plaintiffs Memorial Town of Homer Inc Hospital and Alice Gandy James H Colvin Jr Appellees b d a Theola Homer Corley Pamela N Breedlove Shreveport LA James H Colvin Jr Attorneys Pamela N Breedlove Rhonda Ward and Shreveport for Intervenors Appellees Valeria Tuggle LA BEFORE CARTER C J PETTIGREW AND WELCH JJ 2 CARTER C J This is appeal of an judgment and ordering 3 928 695 15 to an trial a retirement system state a employer s judgment granting court to transfer summary total of a newly established retirement plan FACTS AND PROCEDURAL HISTORY The plaintiffs Homer Memorial The defendants as well HMH Hospital are the MERS is Theola members a sued to remit to MERS contribution to be to a contract a 1 Gandy their official by LSA HMH also employee or percentage of each officer agreed the salary s whereby RS s or of HMH to pay to MERS employee the employee or agreed MERS eligible officers and employees it would collect fi om the officer salary that s in a MERS System and d b etseq agreed officer Retirement statewide retirement system established provide retirement benefits HMH Inc and Alice Corley individually In 1969 HMH and MERS entered to the Town of Homer are Municipal Employees its board as capacities 11 1732 in this class action s employee percentage of each a employer contribution The percentage paid by the employee and employer has substantially increased since 1969 Due to increasing withdraw from MERS of the contract HMH retirement Corley and complied Gandy not sued as ease of reference that arguments advanced other defendants by we terminate the with the contract provide a notice termination to MERS spin off of assets intended to contract keep or and tenus MERS liabilities all to employer representatives individually and on behalf of all procedure is not relevant to this appeal HMH as the plaintiff herein class The class action other persons similarly For ease of reference we will refer to For to two years MERS plans situated 2 opted by giving the required informed HMH that it does successor HMH rates will refer to MERS MERS were made 3 on as the defendant herein behalf of MERS itself as recognizing well as the contributions made would be keep by HMH All employees with less than ten employee contributions made by employees with years service unless the employee requested HMH initiated this class action refund the relevant moved for for partial a retirement plan created by basis for MERS to claiming all keep that regarding whether retirement HMH the MERS based 11 143 plan under the motion for contractual and that there employer in judgment and ordered Hospital Cash Match Plan 1 804 314 90 in attached as an exhibit to its to the judgment a opposed the employer dozens of issues filed a of the transfer to the court s supplemental nature MERS a a new new plan granted HMH to pay in trust total of and detailing employee and employer contributions owed with regard s 3 928 695 15 2 124 380 25 class members chart provides contributions to HMH employee contributions employer contributions for the benefit of the court that MERS were HMH statute that MERS could make summary to the Homer Memorial which includes liability and entitled to have authority contributions reviewing all of the evidence the trial partial to ultimately mechanism for it to distribute it could transfer the plan and argued After HMH are memorandum with attached exhibits that evidenced the retirement 3 its refusal on the issue of contractual or employer only ten Further HMH contended that there is regulatory contributions is LSA R S new on than employer and employee contributions transferred constitutional statutory motion against more refund employee and employer contributions summary judgment all of the relevant no a HMH contended it and the class members damages new MERS intended to directly refunded their employee contributions their years service The trial the amounts of to each class member 3 HMH is regard paid seeking only to its CUlTent on the employees behalf of former principal amounts paid without any interest employees 4 as employer contributions with It did not seek transfer of amounts MERS has ordering it not distribute to that challenged distribute suspensively appealed contending the contributions new transfer the court employee retirement to court 4 contributions distribute or transfer employer to Neither has MERS of amount is whether the trial appeal on MERS has judgment ordering it s calculation of the total s The sole issue MERS employer contributions portion of the trial transfer the or challenged the trial ordering or trial court erred in employer court en ed in to HMH contributions s plan DISCUSSION Summary judgments court appellate are the using reviewed criteria same on appeal that govern determination of whether summary judgment is judgment summary when there is granted if the admissions as matter of law On transfer plan together MERS a Eligible Revenue Code A 1 who 4 to In its a s full scale trial a to interrogatories that and there is to judgment no as 457 to HMH iprototype s new by law to retirement Plan drafted under the SeCtion 457 MERS emphatically only mechanism for the distribution of is LSA R S MERS employer contributions received by in court The motion should be affidavits show employer contributions that under Louisiana law the provides avoid argues ithat it is not authorized essentially Govermnent provisions of Intelnal avers with any trial A motion for material fact and that the mover is entitled distribute the which is answers depositions the the LSA C C P art 966B appeal or issue of material fact pleadings to to with novo appropriate procedural device used a genuine file on genuine issue a no is de 11 143 which pertinent part As provided is in active appellate in Subsection F of this Section any person service and is a member of any public brief MERS states that HMH s employees are specifically refund oftheir accumulated contributions pursuant to LSA R S 11 1759 5 entitled retirement pension or system fund or plan maintained primarily for officers and employees of the state of Louisiana or of any political subdivision thereof or of any district board commission other agency of either or of any other such public entity who has been a member of such system fund or plan for at least six months and who has membership credit in or who transfelTed service credit from any other such system fund or plan shall have the option of transferring all of his or credit from every such or plan he is currently system fund contributing or to plan or to the system fund to the system to which he last contributed C Except as provided in Paragraph 5 of this Subsection and notwithstanding the provisions of law to the contrary the system fund or plan from which the person transfers such credit shall transfer to the receiving system fund or plan an amount which is the lesser of the following 1 The greater of the actuarial the service transferred or all cost to the employee receiving system for contributions from the transferring system 2 All employee contributions employer contributions provided that in any system plan where the employer contribution is not a fixed percentage of the employees earnings an employer contribution which is equal to the employee contribution in addition to a sum representing interest equal to the board approved actuarial valuation rate of the transferring system fund or plan compounded annually of all contributions fund per G annum 1 make receiving system fund or plan must application to the receiving system fund or written plan requesting a a transfer under this Section MERS contends the statute benefit and that pension plans transfers to the In of the analyzing City provides only for even amount of employee MERS following principles court in or for each year of contribution to the date of transfer A member of a all transfers applies section if the statute contributions statutory construction of New Orleans Fund 05 2548 La 10 107 v C restricts only argument and LSA R S of between defined LA Assessors 11 143 set forth we are by our mindful supreme Retirement and Relief So 2d L Jegislation is the solemn expression of the legislative will and therefore the interpretation of a law primarily involves the The staliing point in search for the legislature s intent 6 ascertaining that legislative intent is the language of the statute itself In examining that language words and phrases are to be read in their context and to be accorded their generally prevailing meaning presumed that intended to art 11 sentence or LSA C C every word LSA R S in provision It is 1 3 a law was useful purpose that some effect is to be provision and that no unnecessary words or serve some to each such given provisions were employed As a result courts are bound if possible to give effect to all pmis of a statute and to construe no sentence clause or word as meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found When law is clear and unambiguous and its application does not lead to absurd consequences the law shall be applied as written and no fuliher interpretation may be made in search of the legislature s intent LSA C C mi 9 LSA R S 4 1 When the language of a law is susceptible of different meanings it must be interpreted as having the meaning that best conforms to a the purpose of the law LSA C C words of a law are ambiguous their examining the law as a context whole 10 art when the Finally meaning must be sought by in which they occur and the text of the LSA C C 12 mi Citations to law case omitted Applying this those principles find LSA R S we 11 143 to be inapplicable to dispute Louisiana Revised Statute and person applies member When the to situations in which transfer credits between two transfer to take make a place written an or statute is read in its individual person requires member is or a judice voluntary individual a case in which applications individual persons to transfer their credits 7 or seeking In fact is not or clearly to for any member to one in which affirmative choice to transfer their credits from MERS to another retirement this is not it entirety the individual person The situation sub members made the terms consistently employs public retirement systems the statute application individual persons 11 143 system Moreover members have made Rather HMH has terminated its contract and withdrawn from MERS benefits via another retirement MERS ignore the contractual relationship employer employer s choice of would have the withdrawing from their MERS HMH to fund its MERS transfer its and blindly This employer group of for employees Fmiher as withdrawal would cause it a RS employers In this second time a a case or employer withdraws from MERS and seeks clear and s new to fund MERS second time 11 143 does not address employer contributions to its from 2 124 380 25 and profit of employees retirement benefits is consistent with the statute MERS practical effect of prohibiting employers By its plain language LSA situations in which the employee contributions overreaching interpretation would yield require a to system would require to the punishing employer retirement benefits employees proposed application withdrawing from MERS while rewarding MERS with millions of dollars in interpretation provide its employees between MERS and the would have the absurd consequence of the and its statute withdraws from the the actions of the impute courts to employer to s plan interpretation of the situations where the electing apply to have This retirement system unambiguous language and to avoids absurd consequences Finally between The contributions relationship made that provide behalf of terminated HMH to MERS a Homer was us as severed well Memorial of Louisiana 07 1170 La System HMH employees opted tenns MERS on The record before d b that the of the contract provide that employer contributions does contract argues employment with employees Homer MERS appeal HMH and MERS refunded 5 on as by was HMH App v However rather terminated companion appeal Municipal Employees 1 Cir 12 21 07 8 their lmpublished of Town of Retirement reveals that three out of the class action and desired to continue MERS the withdrawal from the system the record in the Hospital not keep employer employees not s will are pmiicipating in The terminated there is employee provision is wholly inapplicable here of the provision no contract that addresses the In fact financial consequences of tenninating the contract After de constitutional at contractual disagree with MERS statutory or contributions Simply We transfer a also established that its new contractual retain the statutory a prohibition against plan is eligible the to MERS making transfening the employer fiduciary duties entitles MERS to by retaining any the transfer of authority requiring that or employer contributions position that the absence of disagree legal authority no withdrawal from its system is to no at issue would violate MERS stated judgment to constitutional employer contributions translates such find we authority entitling MERS We issue review novo employer to its members profit from HMH contributions s HMH receive the transfer thus smmnary appropriate CONCLUSION For the Costs of this foregoing reasons appeal in the the trial court amount of s judgment 1 527 00 Municipal Employees Retirement System of Louisiana AFFIRMED 9 are is affirmed assessed to the

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