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In re Harrier Trust

Court of Appeals of Louisiana, Third Circuit

October 17, 2018

IN RE: HARRIER TRUST

          SUPERVISORY WRIT FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-3020 HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE

          Wilford D. Carter Wilford Carter Law, LLC COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

          Philip A. Franco Leigh Ann Schell Jeffrey E. Richardson Adams and Reese LLP COUNSEL FOR RESPONDENT: Edward Alexander Adam P. Johnson

          Hunter W. Lundy Matthew E. Lundy Rudie R. Soileau, Jr. T. Houston Middleton IV Daniel A. Kramer Lundy, Lundy, Soileau & South, L.L.P.COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

          Walter M. Sanchez Alexander L. Reed The Sanchez Law Firm, L.L.C. COUNSEL FOR RESPONDENT: Elaine T. Marshall

          Michael Reese Davis Tim P. Hartdegen Hymel, Davis & Petersen, L.L.C. COUNSEL FOR RESPONDENT: Elaine T. Marshall

          Todd Clemons Janet D. Madison Todd Clemons & Associates, APLC COUNSEL FOR RESPONDENT: Elaine T. Marshall

          Jeffrey W. Chambers Chambers Law Group COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

          John P. Lahad Susman Godfrey LLP COUNSEL FOR APPLICANT: Preston L. Marshall, Beneficiary/Harrier Trust

          Christopher J. Akin COUNSEL FOR RESPONDENT: Elaine T. Marshall

          Court composed of John D. Saunders, Marc T. Amy, and Billy H. Ezell, Judges.

          Amy, J., concurs in the result.

          JOHN D. SAUNDERS JUDGE

         Relator, Preston L. Marshall (Preston), in his capacity as beneficiary of the Harrier Trust, seeks writs from two rulings by the Fourteenth Judicial District Court, Calcasieu Parish, the Honorable Anne Simon (Judge Simon), presiding ad hoc, and the Honorable Sharon Darville Wilson (Judge Wilson), presiding.

         Preston seeks review of Judge Simon's denial of his first motion to recuse Judge Wilson. The notice of intent and this writ application were timely filed. Two of the five purported co-trustees, Edward Alexander (Alexander) and Adam F. Johnson (Johnson), filed a brief in opposition. Elaine T. Marshall (Elaine) also filed a brief in opposition. Preston filed a reply.

         STATEMENT OF THE CASE

         This matter arises out of the creation of the Harrier Trust in the last will and testament of E. Pierce Marshall, Sr. (Pierce Sr.), which is dated May 5, 2006. Pierce Sr. died on June 20, 2006, and succession proceedings were opened in Harris County, Texas, by his spouse, Elaine, who is the executrix of the estate and is the trustee of the Harrier Trust.

         Matters related to the Harrier Trust have been before this court on three prior writ applications.[1] Two appeals regarding the Harrier Trust are pending.[2]

         Related litigation has been before this court on several other matters. Further, a suit is pending in Dallas, Texas, and four suits are pending in the Probate Court for Harris County, Texas.[3]

         The Harrier Trust was set up for Preston's benefit. Elaine, Preston's mother, alleges that Preston demanded certain distributions from the Harrier Trust for his support, maintenance, and welfare but refused to provide the information necessary for Elaine to evaluate the request. Elaine avers that any distributions of principal to Preston are within her sole and absolute discretion under the provisions of the Harrier Trust. Preston alleges he instituted this litigation when his mother fired him from the family business in July 2015.

         On October 12, 2015, within the Texas succession proceedings, Preston filed the 401 Suit against Elaine in her capacity as the executrix of Pierce Sr.'s will. It sought to compel a statutory accounting by Elaine, to gain access to the books and records of the Harrier Trust, and (as amended) to compel Elaine to perform all duties required under the Harrier Trust.

         On October 29, 2015, Preston filed the 402 Suit seeking a declaratory judgment against Pierce Jr. and Elaine. Preston sought an order declaring that he was entitled to certain disclosures regarding the Harrier Trust and an order compelling Pierce Jr. and Elaine to make those disclosures.

         On July 19, 2016, Preston sought an injunction against Elaine in Texas. In response, Elaine began the litigation regarding the Harrier Trust in Louisiana by filing a petition for declaratory relief on July 22, 2016. She alleged that Preston's actions prevented her from presenting her accounting for approval and sought guidance for the performance of her obligations under the Harrier Trust. Elaine also sought a declaration that a judgment rendered in Wyoming in the matter ...


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