In Re: Marshall Legacy Foundation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-245

IN RE: MARSHALL LEGACY FOUNDATION

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-3683
HONORABLE KENDRICK J. GUIDRY, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Charles G. Fitzgerald,
Judges.

AFFIRMED AS AMENDED.

James M. Garner
Joshua S. Force
Ashley G. Coker
Sher Garner Cahill Richter Klein & Hilbert, LLC
909 Poydras Street, 27th Floor
New Orleans, Louisiana 70112
(504) 299-2100
Counsel for Appellant:
Preston L. Marshall

Ezra Pettis, Jr.
Pettis Law Firm, LLC
626 Broad Street
Lake Charles, Louisiana 70601
(337) 439-3939
Counsel for Appellant:
Preston L. Marshall

John P. Lahad
Susman Godfrey, L.L.P.
1000 Louisiana Street, Suite 5100
Houston, Texas 77002
(713) 653-7859
Counsel for Appellant:
Preston L. Marshall

Daniel A. Kramer
Lundy Law, L.L.P.
501 Broad Street
Lake Charles, Louisiana 70601
(337) 439-0707
Counsel for Appellant:
Preston L. Marshall

Jeffery W. Chambers
Chambers Law Group
711 Louisiana Street, Suite 2150
Houston, Texas 77002
(713) 438-5244
Counsel for Appellant:
Preston L. Marshall

Michael Reese Davis
Tim P. Hartdegen
Hymel Davis & Petersen, LLC
10602 Coursey Blvd.
Baton Rouge, Louisiana 70816
(225) 298-8118
Counsel forAppellee:
Elaine T. Marshall,
Co-Trustee of the Marshall Legacy Foundation

Joel G. Davis
P.O. Box 625
Oakdale, Louisiana 71463
(318) 335-8750
Counsel for Appellee:
Elaine T. Marshall,
Co-Trustee of the Marshall Legacy Foundation

Walter M. Sanchez
Sanchez Burke, LLC
1200 Ryan Street
Lake Charles, LA 70601
(337) 433-4405
Counsel for Appellee:
Elaine T. Marshall,
Co-Trustee of the Marshall Legacy Foundation

Todd S. Clemons
Janet D. Madison
Todd Clemons & Associates, APLC
1740 Ryan Street
Lake Charles, LA 70601
(337) 477-0000
Counsel for Appellee:
Dr. Stephen D. Cook,
Co-Trustee of the Marshall Legacy Foundation

Philip K. Jones, Jr.
Kelly T. Scalise
Liskow & Lewis, APLC
701 Poydras Street, Suite 5000
New Orleans, LA 70139
(504) 581-7979
Counsel for Appellee:
Dr. Stephen D. Cook,
Co -Trustee of the Marshall Legacy Foundation

FITZGERALD, Judge.

The appellant, Preston L. Marshall, seeks review of the trial court’s judgment

awarding court costs. The appellees are the co-trustees of the Marshall Legacy

Foundation, Elaine T. Marshall and Dr. Stephen D. Cook. 1

In October 2023, Elaine and Stephen, as trustees of the Marshall Legacy

Foundation, filed a motion to tax costs against Preston following a trial on the merits.

On January 24, 2024, the trial court signed a judgment awarding $116,393.57 in

costs to Elaine and Stephen. Preston now appeals this judgment.

On appeal, Preston asserts that the trial court erred in awarding costs to Elaine

and Stephen, individually, rather than in their representative capacities. We agree.

A rule to tax court costs under La.Code Civ.P. art. 1920 is incidental to the

original proceeding in which costs were incurred. “Article 1920 is directed to the

apportionment of costs between the parties.” Cormier v. Roberson, 96–1107, p. 4

(La.App. 1 Cir. 3/27/97), 691 So.2d 807, 809. “[A]n award of court costs is a money

judgment in favor of one or more parties who incurred court costs in participating in

the litigation.” Id. at 810.

Elaine and Stephen were not individually named in the original proceeding;

they appeared only in their representative capacities. Likewise, they filed their rule

to tax costs in their representative capacities.

Very simply, the trial court mistakenly awarded court costs to Elaine and

Stephen, individually, rather than in their representative capacities. 2

1
This memorandum opinion is issued in compliance with Uniform Rules—Courts of
Appeal, Rule 2–16.1(B).
2
Preston also assigned as error the following: “The Trial Court erred in awarding costs if
the Final Judgment in this matter is reversed.” In other words, Preston argues that the award of
costs should be reversed if the judgment in the original proceeding is reversed on appeal. However,
the judgment in the original proceeding was recently affirmed on appeal. See In re Marshall
Legacy Foundation, 23-522 (La.App. 3 Cir. 6/12/24), 389 So.3d 1005. This assignment is thus
moot.

DISPOSITION

The trial court’s judgment of January 24, 2024, is amended to reflect that the

costs are awarded to Elaine T. Marshall and Dr. Stephen D. Cook, as trustees of the

Marshall Legacy Foundation. The judgment is affirmed in all other respects.

The costs of this appeal are assessed to Elaine T. Marshall and Dr. Stephen D.

Cook, as trustees of the Marshall Legacy Foundation.

AFFIRMED AS AMENDED.

2