In Re: The Marshall Museum and Library, a Louisiana Charitable Trust

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-389

IN RE: THE MARSHALL MUSEUM
AND LIBRARY, A LOUISIANA
CHARITABLE TRUST

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 97-7605
HONORABLE KENT SAVOIE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

MOTION TO DISMISS APPEAL GRANTED.
James Gibson
Charles Kreamer
Allen & Gooch
Post Office Drawer 3769
Lafayette, LA 70502
(337) 291-1300
COUNSEL FOR PLAINTIFF/APPELLEE:
Dr. Stephen Cook

John Stanton Bradford
John J. Simpson
Stockwell, Sievert, Viccellio, Clements & Shaddock
Post Office Box 2900
Lake Charles, LA 70602-2900
(337) 436-9491
COUNSEL FOR DEFENDANTS/APPELLANTS:

Lawter & Lawter
Gabriel, Herman & Peretz, L.L.P.
Jack W. Lawter, Jr.
Dianne W. Lawter
Avi Peretz
Dean Herman
Alan Gabriel

James Watston
Roddy & Watson
Post Office Box 1743
Lake Charles, LA 70602-1743
(337) 474-7446
COUNSEL FOR DEFENDANTS:
Finley Hilliard
Kenneth Farrar

Jeffrey W. Chambers
Ware, Snow, Fogel & Jackson, L.L.P.
America Tower, 42nd floor
2929 Allen Parkway
Houston, TX 77019
(713) 659-6400
COUNSEL FOR APPELLEE:
Estate of E. Pierce Marshall

Gregory Jesse Logan
The Logan Law Firm
Post Office Box 3424
Lafayette, LA 70502
(337) 232-6210
COUNSEL FOR APPELLEE:
Estate of E. Pierce Marshall

Peter J. Butler, Jr.
Breazeale, Sachse, & Wilson, L.L.P.
Suite 1500, 909 Poydras St.
New Orleans, LA 70112
(504) 619-1800
COUNSEL FOR APPELLEE:
Estate of E. Pierce Marshall

PETERS, Judge.

The Plaintiff/Appellee, Dr. Stephen Cook, individually and as Trustee

of the Marshall Museum and Library, a Louisiana Trust, filed a motion to

dismiss this appeal as having been taken from a non-appealable, interlocutory

order. For the reasons assigned below, we grant the motion to dismiss.

This litigation arises out of conflicting claims to the proper distribution

of the estate of J. Howard Marshall. In the course of these proceedings, the

Defendants/Appellants filed numerous declinatory and dilatory exceptions.

The Appellee filed a motion to strike and/or motion in limine. Following a

hearing on these pleadings, the trial court granted the Appellants’ exception of

prematurity on the issue of defamation and dismissed the Appellee’s claim for

defamation without prejudice. The trial court also granted the Appellants’

exception of no cause of action on the claim of tortious interference with a

contract and dismissed the Appellee’s claim without prejudice. As to all other

claims, the trial court denied the exception of prematurity and the exception of

no cause, and also denied the remaining exceptions filed by the Appellants.

Further, the trial court granted the Appellee’s motion to strike/limine seeking

to have an exhibit of the Appellants’ memorandum stricken from the record.

The Appellants filed their motion for appeal on August 29, 2007. On March

3, 2008, the trial court designated the judgment at issue as final pursuant to

La.Code Civ.P. art. 1915(B). The record in this appeal was lodged on April

14, 2008.

The only adverse rulings, as to the Appellants, contained in the appealed

judgment are interlocutory rulings which denied the Appellants’ exceptions

and which granted the Appellee’s motion to strike/limine. Although the

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judgment does contain two rulings that could be appealed, these rulings are

partial grants of the Appellants’ exceptions and are, therefore, rulings in the

Appellants’ favor. Moreover, in their opposition filed in response to this

motion to dismiss, the Appellants did not assert that they were appealing any

issues pertaining to these arguably appealable rulings. Therefore, the only

issues remaining about which the Appellants could be complaining are

interlocutory rulings. La.Code Civ.P. art. 1841.

In their response to the motion to dismiss, the Appellants ask, if this

court should find this appeal improper, that this court convert this appeal to an

application for supervisory writs. Although the judgment sought to be

appealed by Appellants is interlocutory, we find that this appeal cannot be

converted to a writ application. The Appellants’ motion for appeal was filed

too late to be considered a timely filed notice of intent to seek a supervisory

writ pursuant to Uniform Rules—Courts of Appeal, Rule 4–3. Therefore, we

hereby dismiss the instant appeal at Appellants’ cost.

MOTION TO DISMISS APPEAL GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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