In Re: Marshall Legacy Foundation

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-747

IN RE:

MARSHALL LEGACY FOUNDATION

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ON APPLICATION FOR SUPERVISORY WRITS OF REVIEW
FROM THE FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 15-3683
HONORABLE RONLAD F. WARE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

WRIT GRANTED IN PART AND MADE PEREMPTORY;
WRIT DENIED IN PART; AND
REMANDED WITH INSTRUCTIONS.

Wilford D. Carter
Wilford Carter Law, LLC
1025 Mill Street
Lake Charles, Louisiana 70601
(337) 564-6990
Counsel for Relator:
Preston L. Marshall as Co-Trustee of the Marshall Legacy Foundation

Todd Clemons
Marcus L. Myers
Todd Clemons & Associates,
A Professional Law Corporation
1740 Ryan Street
Lake Charles, Louisiana 70601
Counsel for Respondents:
Dr. Stephen D. Cook and Samantha Salkeld

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

David Green
David Green Law Firm
316 Iris Street
Lake Charles, Louisiana 70601
(337) 437-8200
Counsel for Relator:
Preston L. Marshall as Co-Trustee of the Marshall Legacy Foundation

Hunter Lundy
Rudie R. Soileau, Jr.
T. Houston Middleton IV
Daniel A. Kramer
Lundy, Lundy, Soileau & South, LLP
501 Broad Street
Lake Charles, Louisiana 70601
(337) 439-0707
Counsel for Relator:
Preston L. Marshall as Co-Trustee of the Marshall Legacy Foundation

SAUNDERS, Judge.

Relator, Preston L. Marshall (Preston), seeks supervisory writs from a ruling

rendered by the Fourteenth Judicial District Court, Parish of Calcasieu, the

Honorable Ronald F. Ware, presiding. The ruling set a hearing on a re-urged joint

motion for reconsideration of rulings on a motion to transfer and a dilatory

exception for September 22, 2016. The trial court granted a stay of the

proceedings pending the outcome of this writ application; however, the trial court

also set hearings on certain motions to disqualify attorneys and to subpoena

lawyers for February 23-24, and March 1-3, 2017. For the reasons that follow, we

grant the writ and make it peremptory insofar as Preston is seeking a remand with

instructions to the trial court to proceed accordance with this court’s prior ruling in

In Re: Marshall Legacy Foundation, 15-1077 (La.App. 3 Cir. 11/25/15), an

unpublished writ decision, and In Re: Marshall Legacy Foundation, 15-1195

(La.App. 3 Cir. 12/22/15), an unpublished writ decision. The writ is denied insofar

as the stay of the proceedings granted by the trial court has rendered moot the issue

raised by Preston regarding the order of the trial court setting a hearing for

September 22, 2016.

FACTUAL AND PROCEDURAL BACKGROUND

This matter, as well as related litigation, has been before this court on

multiple occasions. An opinion on another issue in this litigation is being issued in

In Re: Marshall Legacy Foundation, 16-527 (La.App. 3 Cir. ___/___/17), ___

So.3d ___.

This matter arises out of a dispute over the control of the Marshall Legacy

Foundation (MLF), which was created on December 23, 2013, when the

Fourteenth Judicial District Court granted Elaine Marshall’s (Elaine) request to

divide the Marshall Heritage Foundation (MHF-Old) into two foundations: the

Marshall Heritage Foundation (MHF-New) and the MLF. The MLF was to be

governed by co-trustees, Elaine, Dr. Stephen Cook (Dr. Cook), and Preston

Marshall (Preston). Preston disagrees with Elaine’s assertion that the MLF was

“created” and instead argues that the old foundation was divided equally into two

new foundations. The distinction is important because if there is nothing

“created,” “the existing articles of the foundation would carry over to the new

foundations.” The existing articles contained an “anti-amendment provision”

which prohibited the amendment of the provisions contained in articles V, IX, and

X. Article V contained a provision that limited Dr. Cook’s tenure as a trustee to a

single year. The new articles, which were not executed by the co-trustees until

February, 2014, completely rewrote Article V and deleted the provision limiting Dr.

Cook’s tenure.

Preston filed an “Ex Parte Petition for Instructions Regarding the Marshall

Legacy Foundation.” Preston sought and was granted permission to direct Frost

Bank and Frost Brokerage, where the MLF funds were placed, to pay certain sums

to Baylor University and The Kincaid School. The next day, Preston filed a “First

Supplemental Petition for Instructions Regarding the Marshall Legacy Foundation

and for Injunctive Relief.” On September 15, 2015, Preston was granted a TRO

restraining Elaine and Dr. Cook from delegating the administration of MLF to

MarOpCo (a Marshall family company) and from amending the prior years’ tax

returns.

Preston filed a “Second Supplemental and Amended Ex Parte Petition for

Instructions Regarding the Marshall Legacy Foundation.” Elaine filed dilatory

exceptions of nonconformity with La.Code Civ.P. art. 235.2, vagueness,

nonconformity with La.Code Civ.P. art. 891, unauthorized use of summary

proceedings, improper cumulation of actions, and improper joinder of parties as
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well as peremptory exceptions of no right of action and no cause of action. Elaine

also filed a motion to strike and a motion to transfer. Dr. Cook adopted these

pleadings as his own. Then, Preston filed a motion for a temporary restraining

order (TRO) and a preliminary injunction and a “Third Amended Petition for

Instructions Regarding the Marshall Legacy Foundation and for Injunctive Relief.”

Elaine re-urged her exceptions.

On October 6, 2015, the trial court heard Elaine’s exceptions and Preston’s

motion for a TRO. The trial court denied both Elaine’s motion to strike and

motion to transfer. The trial court also denied Elaine’s exceptions. The judgment

at issue was rendered in open court; and thereafter, a written judgment was signed

on October 19, 2015. The trial court also denied Preston’s request for injunctive

relief and stated that it was “not going to remove [Dr. Cook] by way of the

preliminary injunction or the temporary restraining order.” The denial of the TRO

does not appear to have been reduced to writing.

Preston argues that his motions to disqualify attorneys and to subpoena

lawyers must be heard prior to the determination of the exception of no right of

action. The exact issue presented in the instant writ application was previously

before this court in docket numbers 15-1077 and 15-1195. On November 25,

2015, this court issued the following ruling in 15-1077:

WRIT GRANTED IN PART AND MADE PEREMPTORY;
WRIT DENIED IN PART; AND REMANDED WITH
INSTRUCTIONS. We hereby grant the writ application in part, to
the extent that we reverse the trial court’s denial of the exception of
no right action filed by Elaine T. Marshall. We find that the record is
insufficient to allow this court to rule on the merits of the trial court’s
ruling denying the peremptory exception of no right of action.
Therefore, instead of entering judgment sustaining the exception of no
right of action, we find that the determination of the outcome of the
exception of no right of action goes to the merits of the case and must
be determined at that time. La.Code Civ.P. art. 929. See Knighten v.
Knighten, 447 So.2d 534 (La.App. 2 Cir.), writ denied, 448 So.2d
1303 (La.1984), citing Ward v. Standard Materials, Inc., 293 So.2d
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885 (La.App. 1 Cir. 1974), and Official Revision Comments (b) under
Article 929 and the authorities cited therein. Therefore, the matter is
remanded to the trial court with instructions to proceed in accordance
with this opinion. As the determination of the merit of the exception
of no right of action will affect the ruling to be entered on the
remainder of the motions and exceptions, we pretermit review of
those matters.

In Re: Marshall Legacy Foundation, 15-1077 (La.App. 3 Cir. 11/25/15), an

unpublished writ decision.

On December 22, 2015, this court issued the following ruling in 15-1195:

WRIT GRANTED IN PART AND MADE PEREMPTORY;
WRIT DENIED IN PART; AND REMANDED WITH
INSTRUCTIONS. We find no abuse of discretion in the trial court’s
grant of the motion to continue or the manner in which the trial court
has set the matters for hearing as this is consistent with this court’s
prior ruling in In Re: Marshall Legacy Foundation, 15-1077 (La.App.
3 Cir. 11/25/15).

However, we grant the writ application filed by Preston L.
Marshall insofar as he asserts that the determination of his motion to
disqualify attorneys and motion to subpoena lawyers must be made
prior to the hearing on the exception of no right of action. As the
motion to disqualify attorneys was filed only days before this court
issued its disposition in 15-1077 and the motion to subpoena lawyers
was not filed until after the issuance of the disposition, these matters
were not taken into consideration when this court issued its prior
ruling that “[a]s the determination of the merit of the exception of no
right of action will affect the ruling to be entered on the remainder of
the motions and exceptions, we pretermit review of those matters.” In
Re: Marshall Legacy Foundation, 15-1077 (La.App. 3 Cir. 11/25/15).
The hearing on these motions was continued based, in part, on the
issuance of this court’s earlier ruling. We find that the trial court
abused its discretion in setting the motion to disqualify attorneys for
hearing after the hearing on the exception of no right action since the
issue of whether those attorneys have a conflict of interest in their
representation of Elaine Marshall must be determined prior to their
being allowed to represent her at the hearing on the exception.
Moreover, we find that the trial court erred in issuing a ruling on the
motion to subpoena lawyers prior to the completion on the hearing of
that motion. Therefore, we reverse that part of the judgment
prohibiting Preston L. Marshall from subpoenaing Bradley Trevino.
We hereby remand this matter to the trial court with instructions to
complete the hearing on the motion to disqualify attorneys and the
motion to subpoena lawyers and make rulings thereon prior to the
hearing on the exception of no right of action.

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In Re: Marshall Legacy Foundation, 15-1195 (La.App. 3 Cir. 12/22/15), an

unpublished writ decision.

On September 7, 2016, a scheduling conference was held off the record. At

that time, the trial court set the motion to transfer and the dilatory exception (that

were re-urged by Dr. Cook and Elaine) for hearing. On September 13, 2016, the

trial court signed an order setting the hearing on the re-urged motions for

September 22, 2016. The trial court granted a stay of the proceedings pending the

outcome of this writ application. The trial court also set hearings on certain

motions to disqualify attorneys and to subpoena lawyers for February 23-24, and

March 1-3, 2017. This writ application followed.

DISCUSSION

The issue raised by Preston in this writ application is whether the trial court

erred in setting a hearing on the re-urged motion to transfer and dilatory exception

for September 22, 2016, which was prior to the hearing set for the hearing of his

motions to disqualify attorneys and subpoena lawyers. Preston contends that this

order was in direct contradiction of this court’s rulings which instructed the trial

court to complete the hearing on the motion to disqualify attorneys and the motion

to subpoena lawyers and make rulings thereon prior to the hearing on the exception

of no right of action. Preston also seeks “a remand with instructions to set

Defendants’ re-urged motion and exception for after the trial court rules on [his]

pending motions to disqualify attorneys and to subpoena lawyers.”

Preston filed this writ application after the trial court granted his request for

stay. “Louisiana jurisprudence holds that an issue is moot when a judgment or

decree on that issue has been ‘deprived of practical significance’ or ‘made abstract

or purely academic.’” Tobin v. Jindal, 11-838, p. 5 (La.App. 1 Cir. 2/10/12), 91

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So.3d 317, 321. Since the hearing on the re-urged motion to transfer and dilatory

exception did not go forward on September 22, 2016, this issue is moot.

DECREE

For the foregoing reasons, we find that the stay of the proceedings granted

by the trial court has rendered moot the issue raised by Preston in the instant writ

application insofar as it seeks to vacate the order of the trial court setting a hearing

for September 22, 2016. However, insofar as Preston seeks a remand with

instructions to the trial court, the writ is granted and this matter is remanded to the

trial court for further proceedings in accordance with this court’s prior ruling in In

Re: Marshall Legacy Foundation, 15-1077 (La.App. 3 Cir. 11/25/15), an

unpublished writ decision, and In Re: Marshall Legacy Foundation, 15-1195

(La.App. 3 Cir. 12/22/15), an unpublished writ decision. The trial court is hereby

instructed to complete the hearing on the motion to disqualify attorneys and the

motion to subpoena lawyers and make rulings thereon prior to the hearings on the

exception of no right of action and the motion to transfer.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED
IN PART; AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

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