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The Herbert and Lula Marie Fusilier Revocable Living Trust v. EnLink NGL Pipeline, LP

Court of Appeals of Louisiana, Third Circuit

May 24, 2017

THE HERBERT AND LULA MARIE FUSILIER REVOCABLE LIVING TRUST
v.
ENLINK NGL PIPELINE, LP

         APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-20-16 HONORABLE STEVE GUNNELL, DISTRICT JUDGE

          Timothy O'Dowd Attorney at Law COUNSEL FOR PLAINTIFF-APPELLANT The Herbert and Lula Marie Fusilier Revocable Living Trust

          James C. Percy Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLEE EnLink NGL Pipeline, LP

          Brett S. Venn Jones Walker LLP COUNSEL FOR DEFENDANT-APPELLEE EnLink NGL Pipeline, LP

          Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          ELIZABETH A. PICKETT JUDGE

         The 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 the judgment.

         FACTS

         Johnny 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.

         Under 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, [1] 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.

         Herbert 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 Agreement.

         EnLink 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 the Agreement.

         Johnny 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.

         After a hearing on the motion, the trial court granted summary judgment in favor of EnLink and dismissed Johnny's ...


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