Succession of Mrs. Geneva Foster, Widow of Sam Harris, Jr. .

SUCCESSION OF MRS. * NO. 2024-CA-0292
GENEVA FOSTER, WIDOW
OF SAM HARRIS, JR. *
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2008-08166, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Nakisha Ervin-Knott
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(Court composed of Judge Roland L. Belsome, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)

Michael T. Joseph, Jr.
ATTORNEY AT LAW
7008 Neptune Ct.
New Orleans, LA 70126

COUNSEL FOR PLAINTIFF/APPELLANT

Zachary J. Delerno
ATTORNEY AT LAW
2901 Houma Blvd., Ste. 1
Metairie, LA 70006

COUNSEL FOR INTERVENOR/APPELLEE

MOTION TO DISMISS DENIED; JUDGMENT AFFIRMED;
REQUEST FOR ATTORNEY’S FEES AND COSTS DENIED
January 9, 2025

NEK Appellant, Charles Harris (“Mr. Harris”), appeals the trial court’s February
RLB
21, 2024 judgment deeming the Charles E. Harris Testamentary Trust to be a valid
RDJ
trust. After considering the record before this Court, we affirm the trial court’s

judgment.

PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 1994, Geneva Foster Harris (“Mrs. Harris”) executed a Last

Will and Testament (“Testament”) and bequeathed her estate to the Charles E. Harris

Testamentary Trust (“Trust”) naming her son, Mr. Harris, as its income beneficiary

for his lifetime; Rodney Harris (“Mr. R. Harris”), Mrs. Harris’ grandson, and

Rachelle Harris Krantz (“Mrs. Krantz”) as its principal beneficiaries in the

proportions of two-thirds and one-third, respectively; and Mr. R. Harris as its trustee.

Mrs. Harris died on May 13, 2008, and in the same year, her succession was opened.

On January 2, 2024, Mr. Harris filed a motion to determine the validity of the

trust (“motion”) on the basis that the Testament contained a prohibited substitution.

Mrs. Krantz intervened in the proceedings. Mr. Harris’ motion was heard on

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February 1, 2024. Ruling from the bench, the trial court determined the Trust was a

valid trust under the law and denied the motion. On February 21, 2024, the trial court

issued a written judgment with a notice of signing of judgment. Six days later, the

trial court issued written reasons for judgment with a notice of signing of judgment.

On the same day the trial court issued its written reasons for judgment, Mr. Harris

filed a motion for devolutive appeal, and the trial court signed the order granting the

appeal on March 1, 2024. This appeal timely follows.

STANDARD OF REVIEW

As the facts of this case are undisputed and the issue on appeal involves a

question of law, this matter is subject to a de novo standard of review. See Baxter v.

Roth, 2019-0113, p. 4 (La. App. 1 Cir. 6/24/20), 307 So.3d 1047, 1050 (citing Turner

v. Willis Knighton Med. Ctr., 2012-0703, p. 5 (La. 12/4/12), 108 So.3d 60, 62).

DISCUSSION

Motion to Dismiss

As a preliminary matter, this Court addresses Mrs. Krantz’s motion to dismiss

for failure to file and serve notice (“motion to dismiss”). On August 27, 2024, Mrs.

Krantz filed a motion to dismiss with this Court asserting Mr. Harris’ attorney has

failed to provide notice of his filings to any of the parties in this matter. Mrs. Krantz

maintains that under the law, she is supposed to have an opportunity to review Mr.

Harris’ filings and respond accordingly, and his failure to provide proper notice has

prejudiced her throughout this appeal.

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Rule 2-14.1 of the Uniform Rules – Courts of Appeal requires service of all

documents filed in this Court on all parties or counsel of record in accordance

with La. C.C.P. art. 1313.1 Further, Rule 2-14.2 mandates a certificate substantiating

the method of service on all parties and counsel of record.2 The Uniform Rules

require litigants to serve opposing parties with copies of their filings at or before the

time of filing. However, this Court lacks authority to dismiss an appeal for failure to

comply with these Uniform Rules. See Giglio v. State, 2017-405, p. 7 (La. App. 3

Cir. 9/20/17), 227 So.3d 851, 856. “[I]n order to [dismiss this appeal], this [C]ourt

would have to take evidence to determine if [Mr. Harris’ filings] were properly

served, and we are not a court of record.” Id. Accordingly, Mrs. Krantz’s motion to

dismiss is denied.

Charles E. Harris Testamentary Trust

On appeal, Mr. Harris asserts two assignments of error3, which can be

succinctly summarized into one salient issue for this Court to consider – whether the

1 Rule 2-14.1 of the Uniform Rules – Courts of Appeal provides, “At or before the time of filing,

legible copies of all documents filed in a Court of Appeal by any party shall be served in
accordance with the provisions of Louisiana Code of Civil Procedure article 1313 to opposing
counsel of record and to each opposing party not represented by counsel.”
2 Rules 2-14.2 of the Uniform Rules – Courts of Appeal explains, “The fact of such service shall

be evidenced by a certificate listing all parties and all counsel, indicating the parties each
represents, and showing when and by what means such service was accomplished.”
3 Specifically, Mr. Harris asserts:

1. The trial court erred in determining that no prohibited substitution existed in the
Last Will and Testament of Geneva Foster when it failed to recognize that the
requirements outlined in Baten v. Taylor were met. Specifically, the court
overlooked the following elements: (1) Imposition of a Duty to Preserve; (2)
Prohibition of Alienation; and (3) Ultimate delivery to a substitute beneficiary;
and

2. The trial court erred in finding that the testament of Geneva Foster Harris did
not contain a prohibited substitution by improperly prioritizing the testator's

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trial court erred in determining: (1) the Trust was a valid trust, and (2) prohibited

substitutions are allowed for trusts. “The fundamental rule of interpreting wills is La.

C.C. art. 1611, which states in pertinent part: ‘The intent of the testator controls the

interpretation of his testament. If the language of the testament is clear, its letter is

not to be disregarded under the pretext of pursuing its spirit.’” Succession of

Henderson, 50,475, p. 7 (La. App. 2 Cir. 2/24/16), 191 So.3d 9, 14. “The intent of

the testator is the ‘paramount consideration’ in determining the provisions of a

will.” Id. (citing Succession of Williams, 608 So.2d 973 (La.1992)).

“A trust is the relationship resulting from the transfer of title to property to a

person to be administered by him as a fiduciary for the benefit of another.” Id. at p.

8, 191 So.3d at 14 (citing La. R.S. 9:1731). “A settlor may dispose of property

in trust to the same extent that he may dispose of that property free of trust.” Id.

(citations omitted). “No particular language is required to create a trust, but it must

clearly appear that the creation of a trust is intended.” Id. (citation

omitted). “A trust instrument shall be given an interpretation that will sustain the

effectiveness of its provisions if the instrument is susceptible of such an

interpretation.” Id. (citations omitted). “It suffices if the instrument as a whole

reflects the intent to establish a trust.” Id. (citations omitted).

Based on the law and the record before this Court, Mrs. Harris created a valid

Louisiana testamentary trust in her Testament. Louisiana Revised Statutes 9:1733

perceived intent over the testament's clear language, contrary to the legal
principles established in Succession of Vaughn.

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provides, “[a] trust is testamentary when it is created by donation mortis causa.” “A

donation mortis causa is an act to take effect at the death of the donor by which he

disposes of the whole or a part of his property.” La. C.C. art. 1469. Prior to her death,

Mrs. Harris created a testament that would take effect at the time of her death, which

specifically stated:

I give and bequeath my entire estate, immovable, movable and mixed,
wheresoever located, all property of which I may die possessed,
including my property located at 382 Aitman Road, Natchez,
Mississippi in trust for the sole use and benefit of my son, Charles E.
Harris, under the following terms and conditions, hereby creating a
testamentary trust, which shall be the “Charles E. Harris Testamentary
Trust” in accordance with the Louisiana Trust Code and all laws
amendatory thereof, as may be applicable upon my death and thereafter.
I name, constitute and appoint Rodney E. Harris, my grandson, as
Trustee of the Trust.

In accordance with Louisiana’s Trust Code, Mrs. Harris’ Testament explicitly

transferred property (“give and bequeath my entire estate, immovable, movable and

mixed, wheresoever located, all property of which I may die possessed, including

my property located at 382 Aitman Road, Natchez, Mississippi”) to be administered

by the executor (“I name, constitute and appoint Rodney E. Harris, my grandson, as

Trustee of the Trust”) for the benefit of another (“for the sole use and benefit of my

son, Charles E. Harris, under the following terms and conditions, hereby creating a

testamentary trust, which shall be the ‘Charles E. Harris Testamentary Trust’”).

Therefore, contained within the Testament is every essential element for the creation

of a valid testamentary trust.

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Mr. Harris’ primary argument is the Trust should be declared an absolute

nullity because it contained a prohibited substitution. We disagree. A prohibited

substitution is defined in La. C.C. art. 1520, which provides:

[a] disposition that is not in trust by which a thing is donated in full
ownership to a first donee, called the institute, with a charge to preserve
the thing and deliver it to a second donee, called the substitute, at the
death of the institute, is null with regard to both the institute and the
substitute.

As it relates to trusts, “[a] disposition authorized by Louisiana’s Trust Code may be

made in trust even though it would be a prohibited substitution if made free of trust.”

Henderson, 50,475, p. 8, 191 So.3d at 14 (citing La. R.S. 9:1723) (other citations

omitted). Whether or not Mrs. Krantz’s Testament contains a prohibited substitution

is irrelevant. The plain text of La. C.C. art. 1520 and jurisprudence clearly

demonstrate an exception that permits prohibited substitutions in trusts. As we have

already determined that Mrs. Harris’ Testament created a valid trust, any argument

that the Trust should be nullified because it contains a prohibited substitution is

meritless. Therefore, the trial court did not err in denying Mr. Harris’ motion and

validating the Trust.

Request for Attorney’s Fees and Costs

In her Appellee brief, Mrs. Krantz requests an award of attorney’s fees and

costs due to Mr. Harris’ alleged tactics to unduly delay these proceedings and his

frivolous appeal. However, Mrs. Krantz failed to file an answer to the appeal.

Procedurally, we find Mrs. Krantz’s request for attorney’s fees and costs is not

properly before this Court. La. C.C. art. 2133 (A) states, in pertinent part:

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An appellee shall not be obliged to answer the appeal unless he desires
to have the judgment modified, revised, or reversed in part or unless he
demands damages against the appellant. In such cases, he must file an
answer to the appeal, stating the relief demanded, not later than fifteen
days after the return day or the lodging of the record whichever is
later. The answer filed by the appellee shall be equivalent to an appeal
on his part from any portion of the judgment rendered against him in
favor of the appellant and of which he complains in his answer.

A request for attorney’s fees and costs are properly requested when contained

in an answer, not a brief. Mendoza v. Mendoza, 2014-954, p. 7 (La. App. 5 Cir.

5/14/15), 170 So.3d 1119, 1123, n.2. Without the filing of an answer to the appeal,

this Court is without authority to order the award Mrs. Krantz’s request. Therefore,

Mrs. Krantz's request for an award of attorney's fees and costs is denied.

DECREE

For the foregoing reasons, we deny Mrs. Krantz’s motion to dismiss; affirm

the trial court’s February 21, 2024 judgment deeming the Charles E. Harris

Testamentary Trust to be a valid trust; and deny Mrs. Krantz’s request for attorney’s

fees and costs.

MOTION TO DISMISS DENIED; JUDGMENT AFFIRMED;
REQUEST FOR ATTORNEY’S FEES AND COSTS DENIED

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