FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF
JEFFERSON DAVIS, NO. C-20-16 HONORABLE STEVE GUNNELL,
Timothy O'Dowd Attorney at Law COUNSEL FOR
PLAINTIFF-APPELLANT The Herbert and Lula Marie Fusilier
Revocable Living Trust
C. Percy Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLEE
EnLink NGL Pipeline, LP
S. Venn Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLEE
EnLink NGL Pipeline, LP
composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D.
Kent Savoie, Judges.
ELIZABETH A. PICKETT JUDGE
plaintiff in this suit for declaratory action appeals the
trial court's grant of summary judgment in favor of the
grantee of a pipeline right-of-way, dismissing his claim that
the right-of-way is invalid because the grantor of the
right-of-way lacked the necessary mental capacity to grant
the right-of-way. For the reasons discussed below, we reverse
Fusilier is the son of Herbert and Lula Fusilier, who are now
deceased. Prior to their death, Herbert and Lula established
The Herbert Fusilier and Lula Marie Fusilier Revocable Trust
(the Trust), which consisted of a trust for Herbert and Lula
and four sub-trusts, one trust for the benefit of each of
their four children. Lula died in 2004, and Herbert remarried
after her death. In 2009, he went to live in a nursing home.
In March 2011, Johnny filed suit against Herbert to be
declared the trustee of the sub-trust established for his
benefit. On November 11, 2011, a judgment was signed
appointing Johnny trustee as he had requested.
the terms of the Trust, Herbert was a settlor and trustee,
and he had broad authority to sell, mortgage, lease, or
otherwise contract with regard to the trust property. In May
2012 and August 2012,  Herbert executed a Right-of-Way and
Servitude Agreement (the Agreement) in favor EnLink NGL
Pipeline, LP that authorized EnLink to construct a pipeline
across property owned by the Trust.
died in January 2013, and in January 2016, Johnny, as sole
trustee of the Trust, filed suit against EnLink, seeking to
have the Agreement declared null and to be awarded damages
for trespass occasioned by the construction and maintenance
of the pipeline across the Trust property. Johnny alleged in
his suit that Herbert did not have the mental capacity to
negotiate and contract with EnLink when he executed the
filed a motion for summary judgment, asserting that its
representative who had Herbert execute the Agreement did not
know and had no reason to know that Herbert did not have the
capacity to execute the Agreement when he did and seeking
dismissal of Johnny's claims. EnLink supported the motion
with affidavits of Trey Ellison, the leasing agent who met
with Herbert to have the Agreement executed, and Claude J.
Gotreaux, a friend of Herbert's who had his power of
attorney; excerpts of the depositions of Mr. Ellison and Mr.
Gotreaux; and other evidence. Mr. Ellison testified that he
negotiated the Agreement with Mr. Gotreaux, who then
explained it to Herbert. Mr. Gotreaux went with Mr. Ellison
to the nursing home to meet with Herbert and have him sign
opposed the motion, arguing that allegations in his 2011 suit
that he sought to be named trustee of his sub-trust because
Herbert was incompetent and should be interdicted together
with Herbert's medical records created a genuine issue of
material fact as to whether Mr. Ellison should have known
that Herbert lacked the mental capacity to contract when he
signed the Agreement.
hearing on the motion, the trial court granted summary
judgment in favor of EnLink and dismissed Johnny's ...