FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF
CALCASIEU, NO. 2016-3020 HONORABLE SHARON D. WILSON, DISTRICT
W. Lundy Rudie R. Soileau, Jr. T. Houston Middleton, IV
Daniel A. Kramer Lundy, Lundy, Soileau & South, L.L.P.
COUNSEL FOR DEFENDANT/APPELLANT; Preston L. Marshall
Wilford D. Carter Wilford Carter Law, LLC COUNSEL FOR
DEFENDANT/APPELLANT: Preston L. Marshall
A. Franco Leigh Ann Schell Adams and Reese LLP One Shell
Square COUNSEL FOR PLAINTIFFS/APPELLEES: Adam P. Johnson
Pastor Edward Alexander
M. Sanchez Alexander L. H. Reed The Sanchez Law Firm, LLC
COUNSEL FOR PLAINTIFF/APPELLEE: Elaine T. Marshall,
Hymel, Jr. Tim P. Hartdegen Michael Reese Davis Richard A.
Sherburne, Jr. Hymel Davis & Petersen, LLC COUNSEL FOR
PLAINTIFF/APPELLEE: Elaine T. Marshall, Trustee/Harrier Trust
S. Clemons Janet D. Madison Todd Clemons & Associates,
APLC COUNSEL FOR PLAINTIFF/APPELLEE: Elaine T. Marshall,
composed of Phyllis M. Keaty, D. Kent Savoie, and Van H.
Savoie, J, dissents with written reasons.
defendant, Preston L. Marshall, appeals from a trial court
judgment granting partial summary judgment in favor of the
plaintiff co-trustees, Edward Alexander and Adam P. Johnson,
finding that Elaine T. Marshall, in her capacity as trustee
of the Harrier Trust, had authority under the trust
instrument to appoint five co-trustees and that the
co-trustees appointed were disinterested parties to the
trust. For the following reasons, we affirm.
OF THE RECORD
Harrier Trust (the Trust) was created by the settlor, E.
Pierce Marshall, Sr.,  on May 5, 2006, who named his wife, Elaine
T. Marshall, as trustee and his son, Preston L. Marshall
(referred to as Preston), as the initial beneficiary, with
his surviving descendants named as secondary beneficiaries.
The Trust, which is irrevocable, was created pursuant to the
laws of the Louisiana Trust Code, and provided that
"[t]he Trustee shall apply to the [Fourteenth] Judicial
District Court for Calcasieu Parish, Louisiana, for
instructions regarding any questions that might arise
regarding administration of the Trust."
related to the Trust have been before this court on numerous
occasions,  and a further appeal is currently pending
before this court. The extensive factual background and
litigation history of this matter has been exhaustedly set
forth by this court numerous times, and thus, will not be
Trust provides the trustee with general discretionary
authority, stating, "The Trustee shall have the sole
discretion to determine the manner, time, circumstances and
conditions of the exercise of any right, power or authority
vested in the Trustee." It further provides the trustee
with the power to designate co-trustees, limited only as
follows: 'The Trustee shall be empowered to select and
designate one or more disinterested individuals to serve as
co-trustee and may designate a successor trustee should she
cease or otherwise fail to serve as Trustee for any reason
whatsoever." Other than being disinterested, the Trust
sets forth no other qualifications or requirements for being
a co-trustee. The Trust also gives the trustee the authority
to hire managers, supervisors, accountants, appraisers, or
attorneys to assist with the proper administration of the
2016, Mrs. Marshall, as trustee, appointed five co-trustees
to serve with her in managing the trust. To accomplish this,
she hired Lake Charles attorney Edwin Hunter and gave him
instructions "to interview and find diverse people of
very high quality and reputation" in Lake Charles who
could serve as disinterested co-trustees. Mr. Hunter provided
Mrs. Marshall with the resumes of such individuals, and on
December 6, 2016, she appointed five individuals as
co-trustees: Dr. Wayne S. Thompson, Jr., Judge Lilyann
Cutrer, Dr. Karen Aucoin, Edward Alexander, and Adam P.
Johnson. The notarial act appointing each co-trustee further
provided the manner in which the co-trustee was to be
compensated, as follows:
Compensation for the Co-Trustees shall be determined by a
formula divided by the number of Co-Trustees serving for that
year and compensation shall be paid in quarterly installments
or if, for whatever reason, quarterly installments are not
able to be made then annually. The Co-Trustees shall divide a
trustees' fee for each calendar year not to exceed forty
percent (40%) of the gross trust receipts, less than any
principal distribution received from any trust, during that
year. The fee shall equal to the sum of (1) 0.3% of (a) the
calculation value, as defined below, of the trust's
interest in the PLM/EPM Marital Income Trust and, (b) the
fair market value of all other assets, and (3) 5% of the
gross trust receipts. For the purpose of this agreement
values shall be determined as of December 31sl of each year.
The calculation value for the trust's interest in the
PLM/EPM Marital Income Trust shall equal 60% of the fair
market value of that trust's corpus adjusted to present
value at 6% per annum discount rate with an actuarial based
on Mrs. Elaine T. Marshall's life expectancy as
determined by the use of Life Table 90 GM as published by the
United States Department of the Treasury. There shall be no
compensation for the year 2016.
Marshall initially filed this action as a petition for
declaratory relief on July 22, 2016, alleging that her
efforts to provide an accounting were impeded by the
beneficiary's failure to cooperate. Subsequent to Mrs.
Marshall's amendment of her petition for declaratory
relief, Preston filed a motion to intervene as a defendant on
November 4, 2016, which was granted by the trial court on
December 15, 2016. On January 11, 2017, Mrs. Marshall filed a
second amended petition for declaratory relief, in which she
alleged that she had appointed the five co-trustees and asked
that the trial court declare that the five co-trustees were
properly appointed in compliance with the provisions of the
Trust and with Louisiana trust law.
12, 2017, Mrs. Marshall, along with Co-trustees Alexander and
Johnson, filed a motion for partial summary judgment,
requesting the trial court to declare valid the appointment
of the five co-trustees pursuant to the Trust. The motion for
partial summary judgment raised no further issues. In
response, Preston opposed the motion and filed an exception
of no right of action, challenging the two co-trustees'
legal right to join in the motion for partial summary
a December 12, 2017 hearing, the trial court denied
Preston's exception of no cause of action, but granted
the motion for partial summary judgment in favor of
Co-trustees Alexander and Johnson, approving Mrs.
Marshall's appointment of the five co-trustees of the
Trust as having been done in compliance with the Trust and
the Louisiana Trust Code. In its oral reasons for judgment,
the trial court noted that Preston had remedies in place that
would allow him to adjust the co-trustees' compensation,
subsequent to their appointment, if he believed it too high
or to seek redress from the co-trustees, should they violate
the fiduciary duty they owe him as the beneficiary. As to the
issue regarding the appointment of the co-trustees, the trial
court held that partial summary judgment was proper because
(1) the Trust clearly gave Mrs. Marshall the authority to
appoint co-trustees and (2) there were no genuine issues of
material fact to suggest that the co-trustees were not
the trial court's oral ruling on December 12, 2017,
Preston filed a motion for an appeal on January 3, 2018.
Thereafter, on January 4, 2018, Co-trustees Alexander and
Johnson filed a motion to have the trial court's judgment
certified as a final judgment pursuant to La.Code Civ.P. art.
1915(B). On January 9, 2018, the trial court granted
Preston's motion for appeal. On January 11, 2018, it
rendered a written judgment and certified that it was a final
judgment under La.Code Civ.P. art. 1915(B).
On appeal, Preston asserts the following assignments of
(1) The District Court erred in granting summary judgment
despite the fact that Mrs. Marshall and the Co-Trustees seek