In Re: Harrier Trust

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-667

IN RE: HARRIER TRUST

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SUPERVISORY WRIT FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2016-3020
HONORABLE SHARON D. WILSON, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed ofJohn D. Saunders, Marc T. Amy, and Billy H. Ezell, Judges.

MOTION TO SEAL GRANTED.
MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY
BRIEF ON BEHALF OF PRESTON L. MARSHALL DENIED.
MOTION FILED BY EDWARD ALEXANDER AND ADAM P. JOHNSON
SEEKING LEAVE TO FILE A RESPONSE TO THE SUPPLEMENTAL
REPLY DENIED.
MOTION FOR LEAVE TO FILE A SECOND SUPPLEMENTAL REPLY
BRIEF ON BEHALF OF PRESTON L. MARSHALL DENIED.
WRIT GRANTED AND MADE PEREMPTORY.

Amy, J., concurs in the result.

Wilford D. Carter
Wilford Carter Law
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR APPLICANT:
Preston L. Marshall, Beneficiary/Harrier Trust

Philip A. Franco
Leigh Ann Schell
Jeffrey E. Richardson
Adams and Reese LLP
4500 One Shell Square
New Orleans, LA 70139
(504) 581-3234
COUNSEL FOR RESPONDENT:
Adam P. Johnson
Edward Alexander

Hunter W. Lundy
Matthew E. Lundy
Rudie R. Soileau, Jr.
T. Houston Middleton IV
Daniel A. Kramer
Lundy, Lundy, Soileau & South, L.L.P.
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
COUNSEL FOR APPLICANT:
Preston L. Marshall, Beneficiary/Harrier Trust

Walter M. Sanchez
Alexander L. Reed
The Sanchez Law Firm, L.L.C.
1200 Ryan Street
Lake Charles, LA 70601
(337) 433-4405
COUNSEL FOR RESPONDENT:
Elaine T. Marshall

Michael Reese Davis
Tim P. Hartdegens
Hymel, Davis & Petersen, L.L.C.
10602 Coursey Blvd.
Baton Rouge, LA 70816
(225) 298-8118
COUNSEL FOR RESPONDENT:
Elaine T. Marshall

Todd Clemons
Janet D. Madison
Todd Clemons & Associates, APLC
1740 Ryan Street
Lake Charles, LA 70601
(337) 477-0000
COUNSEL FOR RESPONDENT:
Elaine T. Marshall

Jeffrey W. Chambers
Chambers Law Firm
711 Louisiana Street, Suite 2150
Houston, TX 77002-2720
(713) 438-5244
COUNSEL FOR APPLICANT:
Preston L. Marshall, Beneficiary/Harrier Trust

John P. Lahad
Susman Godfrey LLP
1000 Louisiana Street, Suite 5100
Houston, TX 77002
(713) 653-7859
COUNSEL FOR APPLICANT:
Preston L. Marshall, Beneficiary/Harrier Trust

Christopher J. Akin
2100 Ross Ave., Suite 2700
Dallas, TX 75201
(214) 981-3812
COUNSEL FOR RESPONDENT:
Elaine T. Marshall

SAUNDERS, Judge.

Relator, Preston L. Marshall (Preston), in his capacity as beneficiary of the

Harrier Trust, seeks writs from two rulings by the Fourteenth Judicial District Court,

Calcasieu Parish, the Honorable Anne Simon (Judge Simon), presiding ad hoc, and

the Honorable Sharon Darville Wilson (Judge Wilson), presiding.

Preston seeks expedited review of the preliminary injunction entered by Judge

Wilson, enjoining him from participating in litigation regarding administration of

the Harrier Trust outside of the Fourteenth Judicial District Court in Louisiana.

Preston has filed two supplements to the writ application. The notice of intent and

this writ application were timely filed.

Preston filed an unopposed motion to have part of the writ application placed

under seal.

There are three motions for leave to file supplemental briefs that have been

referred to the merits.

STATEMENT OF THE CASE

This matter arises out of the creation of the Harrier Trust in the last will and

testament of E. Pierce Marshall, Sr. (Pierce Sr.), which is dated May 5, 2006. Pierce

Sr. died on June 20, 2006, and succession proceedings were opened in Harris County,

Texas, by his spouse, Elaine, who is the executrix of the estate and is the trustee of

the Harrier Trust.

Matters related to the Harrier Trust have been before this court on three prior

writ applications.1 Two appeals regarding the Harrier Trust are pending.2

Related litigation has been before this court on several other matters. Further,

1
See 17-103, 18-466, and 18-612.
2
See 18-324.

a suit is pending in Dallas, Texas, and four suits are pending in the Probate Court for

Harris County, Texas.3

The Harrier Trust was set up for Preston’s benefit. Elaine, Preston’s mother,

alleges that Preston demanded certain distributions from the Harrier Trust for his

support, maintenance, and welfare but refused to provide the information necessary

for Elaine to evaluate the request. Elaine avers that any distributions of principal to

Preston are within her sole and absolute discretion under the provisions of the Harrier

Trust. Preston alleges he instituted this litigation when his mother fired him from

the family business in July 2015.

On October 12, 2015, within the Texas succession proceedings, Preston filed

the 401 Suit against Elaine in her capacity as the executrix of Pierce Sr.’s will. It

sought to compel a statutory accounting by Elaine, to gain access to the books and

records of the Harrier Trust, and (as amended) to compel Elaine to perform all duties

required under the Harrier Trust.

On October 29, 2015, Preston filed the 402 Suit seeking a declaratory

judgment against Pierce Jr. and Elaine. Preston sought an order declaring that he

was entitled to certain disclosures regarding the Harrier Trust and an order

compelling Pierce Jr. and Elaine to make those disclosures.

On July 19, 2016, Preston sought an injunction against Elaine in Texas. In

response, Elaine began the litigation regarding the Harrier Trust in Louisiana by

filing a petition for declaratory relief on July 22, 2016. She alleged that Preston’s

actions prevented her from presenting her accounting for approval and sought

3
These are: (1) the succession proceedings for Pierce Sr. (No. 365,053); (2) No. 365053-
401 (Texas Fourteenth Court of Appeals numbers 14-17-839, 14-18-94, 14-18-95, 14-18-425, and
14-18-466), the 401 Suit; (3) No. 365053-402 (Texas Fourteenth Court of Appeals number 14-18-
425), the 402 Suit; and (4) No. 365053-404 (Texas Fourteenth Court of Appeals number 14-17-
930), the 404 Suit.

2

guidance for the performance of her obligations under the Harrier Trust. Elaine also

sought a declaration that a judgment rendered in Wyoming in the matter captioned

“In the Matter of EPM Fiduciary Service Company, LLC, Trustee” was entitled to

full faith and credit in Louisiana.4

Preston intervened in the Louisiana suit and asserted exceptions of lis pendens,

improper venue, and lack of subject matter jurisdiction, which were denied by the

trial court. This court denied Preston’s writ application.

Elaine filed a motion for partial summary judgment seeking approval of the

December 2016 appointment of Alexander, Johnson, Dr. Wayne S. Thompson,

Judge Lilynn Cutrer (Fourteenth Judicial District Court), and Dr. Karen Aucoin as

co-trustees of the Harrier Trust. The hearing of that motion was stayed by Judge

Wilson after Preston obtained injunctive relief that enjoined Elaine from taking any

action with the co-trustees regarding the Harrier Trust outside of the Texas court and

suspending the trustee powers, obligations, responsibilities and rights to

compensation. The Texas court found that “Preston ha[d] demonstrated a likelihood

of success on the merits.”

On September 29, 2017, Preston sought a TRO and other injunctive relief as

well as a declaration that the appointment of the five purported co-trustees violated

the terms of the Harrier and Falcon Trusts. (The 404 Suit.) In the 404 Suit, Preston

obtained an order compelling the production of certain documents prepared by

Johnson (the Johnson Documents). In Louisiana, the co-trustees obtained a

protective order regarding the Johnson Documents.

4
EPM Fiduciary Service Company, LLC, is the trustee of the EPM Marital Income Trust,
which is a Wyoming Trust. The Harrier and Osprey Trusts are the remaindermen who are to
receive distribution of the trusts’ assets following Elaine’s death.

3

On November 7, 2017, the Texas court issued a temporary injunction

enjoining the purported co-trustees from “[a]ttempting to circumvent the Court’s

jurisdiction over the Harrier and Falcon Trust[s] by 1) seeking validation of the

compensation provisions. . .”5 The Texas court made a specific finding of fact that

“[t]he Louisiana lawsuit is a threat to the proper jurisdiction” of the Texas court.

Nonetheless, Johnson and Alexander had their motion for partial summary judgment

put back on the docket, and Judge Wilson granted it by judgment signed January 11,

2018. That judgment is the subject of a pending appeal in 18-324.

This court vacated a TRO enjoining Preston and anyone acting in concert with

him from filing, proceeding with, or participating in any litigation or proceeding

related to the administration of the Harrier Trust outside of the Louisiana court. This

court’s ruling was based on the finding that Alexander and Johnson and the trial

court failed to comply with the requirements of La.Code Civ.P. arts. 3603 and 3604.

See 18-466.

Preston sought to recuse Judge Wilson because she is presiding over this case

which involves another judge from the Fourteenth Judicial District Court, Judge

Cutrer, who was made a co-trustee of the Harrier Trust. According to Preston, when

Judge Wilson granted the TRO, it benefited Judge Cutrer.

The motion to recuse was assigned to Judge Clayton Davis (Judge Davis),

who had been a partner in one of the firms representing Preston. Judge Davis

recused himself, and sent an order to the Louisiana Supreme Court requesting that

an ad hoc judge be assigned. Elaine took a writ directly to the Louisiana Supreme

Court asking that Judge Davis’ order be vacated because it was highly critical of

5
The injunction also enjoined the purported co-trustees from taking certain other actions.
The Texas court, in issuing the injunction, also made a finding that “Preston is likely to succeed
on his claim that compensation provisions . . . violate the terms of the Trusts.” The compensation
package for the co-trustees of the Harrier Trust is estimated to be $20-30 million on an annual
basis. Alexander and Johnson contend that the amount of compensation has not been determined.
4

Judge Cutrer and included his own narrative of the case. The Louisiana Supreme

Court vacated Judge Davis’ order. In Re: Harrier Trust, 18-1090 (La. 7/13/18), 248

So.3d 1285. Preston’s motion to recuse was then assigned to Judge Simon, who was

appointed ad hoc by the Louisiana Supreme Court.

A hearing was held on July 23, 2018, and Judge Simon denied the motion on

the ground of waiver because motions to recuse are waived if not filed prior to trial

or hearing once the alleged facts supporting the motion are known. See Gaspard v.

Horace Mann Insurance Company, 17-1140 (La.App. 3 Cir. 5/9/18), 247 So.3d 778.

Preston proffered the testimony of Judge Davis, who stated that he became aware of

Judge Cutrer’s appointment as co-trustee of the Harrier and Falcon Trusts in January

of 2017. He stated that Judge Wilson told him that she had spoken to Judge Cutrer

and that Judge Cutrer had assured her that there was no issue. Judge Cutrer allegedly

testified that she had not discussed her appointment with any of the judges at the

Fourteenth Judicial District Court.

No writ was initially filed with respect to this ruling, and Preston filed a

second motion to recuse alleging actual bias based on the alleged ex parte

communication described by Judge Davis. Judge Wilson stated that the conversation

as alleged did not occur. Judge Wilson stated that in her capacity as Chief Judge of

the Fourteenth Judicial District Court, she relayed Judge Davis’ concerns to Judge

Cutrer. Judge Cutrer responded to Judge Wilson by stating that she, Judge Cutrer,

had sought an opinion from an ethics expert, and based on that, Judge Cutrer did not

feel that there was any violation of the Code of Judicial Conduct. Judge Wilson did

not assign the motion to recuse to another judge and denied it, stating that Preston

“failed to state a valid basis for recusal.”

Alexander and Johnson argue that Preston’s motions to recuse are merely

stalling tactics designed to give him time to get a TRO from the Texas courts before
5

they could get one in Louisiana. They point out that when the motion for summary

judgment was initially set for hearing, Preston sought and received a stay allegedly

to conduct discovery. During that stay, Preston did depose Judge Cutrer, but he also

sought and obtained injunctive relief in the Texas court as discussed above.

On August 7, 2018, this court upheld Judge Wilson’s denial of the motion to

recuse. See 18-612. Preston filed a writ application with the Louisiana Supreme

Court on September 6, 2018, which is still pending. Now, Preston challenges Judge

Simon’s denial of his motion to recuse.

Also, on August 7, 2018, Judge Wilson granted a TRO after a phone

conference. Then, on August 16, 2018, Judge Wilson granted a preliminary

injunction enjoining Preston from participating in any proceedings related to the

administration of the Harrier Trust anywhere other than the Fourteenth Judicial

District Court. This ruling is the subject of the present writ application and an

unlodged appeal.

This court calls up writ application 18-667 for the purpose of issuing a written

opinion. We find that there is no need for additional briefings or oral argument.

SUPERVISORY RELIEF

“An appeal may be taken of right from an order or judgment relating to a

preliminary or final injunction[,] but such an order or judgment shall not be

suspended during the pendency of an appeal unless the court in its discretion so

orders.” La.Code Civ.P. art. 3612(B) (emphasis added). While “[a] preliminary

injunction is an interlocutory procedural device designed to preserve the status quo

between the parties pending a trial on the merits[,] . . . a party aggrieved by a

judgment either granting or denying a preliminary injunction is entitled to an

appeal.” Bernhard MCC, LLC v. Zeringue, 18-30, p. 4 (La.App. 5 Cir. 5/30/18), 250

So.3d 342, 347.
6

Louisiana Code of Civil Procedure Article 3612 uses the permissive “may”

rather than “‘shall[,]’ indicating than an appeal is permitted, but not mandated, to

seek review of judgments relating to injunctions.” Mik-Lee, Inc. v. City of New

Orleans, 581 So.2d 261, 264 (La.App. 4 Cir. 1990), writ denied, 576 So.2d 28

(La.1991). See also La.Const. Art. 5 §10 and La.Code Civ.P. art. 2201. “If a party

elects to seek review by applying for supervisory writs, it must be done within the

same time limits allowed for an appeal of the judgment complained of, which is 15

days under La.C[ode] C[iv.]P. art. 3612.” First Bank and Trust v. Duwell, 11-104,

p. 5 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 17 n.5.

Alexander and Johnson object to this court’s review of the preliminary

injunction under its supervisory jurisdiction and argue that a review by appeal would

give the parties the opportunity to have oral argument. They also note that Preston

was granted an order of appeal on August 22, 2018, by the trial court.

The notice of appeal was received by this court’s clerk of court on August 30,

2018. The notice of intent to file this writ application was filed on August 22, 2018,

the same day that the order of appeal was signed in the trial court. The order setting

a return date of September 15, 2018, was also signed on August 22, 2018. The writ

application was filed on August 29, 2018, within fifteen days of the issuance of the

preliminary injunction.

Based on the above cited cases, we find that review under this court’s

supervisory jurisdiction is appropriate because it is probable that by the time any

appeal of the preliminary injunction would be completed, the issues presented

therein would be moot.

Alexander and Johnson oppose the request for expedited consideration and

the writ application because the Texas court issued judgments that the Texas cases

on appeal are “abated, treated as closed cases, and removed from the court’s active
7

docket” in deference to the preliminary injunction issued by the Louisiana court.

They allege that because they have challenged the Texas court’s jurisdiction and are

appearing in those proceedings under a “Special Appearance,” they can take no

action in the Texas proceedings without waiving jurisdiction.

Preston, however, contends that Elaine withdrew her plea as to lack of

jurisdiction in her second amended answer and that two judges who have presided

over the Texas proceedings denied Elaine’s assertions of lack of jurisdiction over

the Harrier Trust.

In asserting that expedited consideration is not warranted, we find that

Alexander and Johnson fail to disclose that the abatement orders all require Preston

to advise the Texas court of “the status of the preliminary injunction by October 29,

2018, or within 10 days of any material change in the status of the preliminary

injunction, whichever is sooner” because “[t]he appeals will be reinstated on [the]

court’s active docket on or after October 29, 2018, or sooner if appropriate.”

But, Preston also leaves out key details in his assertion that expedited

consideration is necessary because Alexander and Johnson are threatening him with

contempt proceedings. There was a deadline for Preston to file a brief right after the

issuance of this injunction. Rather than miss the deadline, Preston petitioned the

Texas court for an abatement order. What Preston fails to mention is that he sought

abatement of only one of the Texas suits. Alexander and Johnson then asserted that

they would seek contempt sanctions if Preston did not follow the same course of

action in all of the Texas suits.

Although there are no currently scheduled trial or hearing dates in this suit,

we find that the expeditious consideration of these writ applications is warranted

because of the pending appeals in the Louisiana court, because of the appeals waiting

to be placed back on the active docket of the Texas court, and because of the recusal
8

issue, which calls into question the validity of any rulings made by Judge Wilson

while the outcome of the recusal issue is pending.

ON THE MERITS

Motions for Leave

Preston filed a sixteen-volume writ application, a two-volume first

supplement, a one-volume second supplement, and a reply to Alexander and

Johnson’s opposition. Alexander and Johnson filed an opposition and a

supplemental opposition.

A. Preston filed a motion for leave to file a supplemental reply brief in order to

respond to Alexander and Johnson’s contention that Spinosa v. Spinosa, 05-1935

(La. 7/6/06), 934 So.2d 35, is no longer good law. As such, no additional brief is

needed in this regard since this court is capable of making that determination without

a brief filed by Preston. Therefore, this motion is denied.

B. Alexander and Johnson filed a motion for leave to file a response to Preston’s

supplemental reply asserting that if Preston was allowed to file his supplemental

reply, they should be allowed to respond to it because Preston included citations to

provisions of the trust code that he had not previously cited. Since Preston’s motion

is denied, this motion is denied.

C. Preston filed a motion for leave to file a second supplemental reply asserting

that if Alexander and Johnson get to file another brief, so should he. The proposed

brief is two paragraphs and simply says that Alexander and Johnson are attempting

to have the last word. We deny this motion.

18-667 Preliminary Injunction

“[A] trial court has broad discretion in deciding whether to grant injunctive

relief.” Dupre v. Schering-Plough Health Care Prod., Inc., 95-213, p. 3 (La.App. 3

Cir. 5/31/95), 656 So.2d 786, 788.
9

Judge Wilson granted a preliminary injunction “enjoining and prohibiting

Preston Marshall, and all persons in active concert or participation with him, from

filing, proceeding with or participating in any litigation or proceeding related to the

administration of the Harrier Trust outside of this Court, including but not limited to

the appointment of the co-trustees, compensation of the co-trustees, distributions

from the accumulations of the Trust, and powers, rights, responsibilities, and

fiduciary duties of the co-trustees under the Trust.”

“A mandatory injunction may not be issued on a merely prima facie showing

that the party seeking the injunction can prove the necessary elements; instead, the

party must show by a preponderance of the evidence at an evidentiary hearing that

he is entitled to the preliminary injunction.” City of New Orleans v. Board of Dir.

of La. State Museum, 98-1170, p. 11 (La. 3/2/98), 739 So.2d 748, 756.

Judge Wilson specifically stated that she was entering a prohibitory

preliminary injunction rather than a mandatory injunction as requested by Alexander

and Johnson because they wanted to limit testimony to affidavits rather than present

live testimony. “The court may hear an application for a preliminary injunction . . .

upon the verified pleadings or supporting affidavits, or may take proof as in ordinary

cases.” La.Code Civ.P. art. 3609.

Preston argues that Judge Wilson abused her discretion in granting this

injunction because: (A) it was improperly based on a finding that the Harrier Trust

has a forum selection clause; (B) it is an improper anti-suit injunction since the Texas

suit was the first-filed suit which did not involve the same parties or issues as the

Louisiana suit; (C) Alexander and Johnson did not show irreparable harm and did

not show that they were likely to prevail on the merits; and (D) the injunction is

overbroad and vague and interferes with the Texas Probate Court’s jurisdiction over

10

Pierce Sr.’s estate. Preston also asserts that Alexander and Johnson had been

enjoined by the Texas court from taking the action they did in seeking the injunction.

We find that Preston is misguided in asserting that the scope of the injunction

prevents him from acting in any proceeding that in any way involves the Harrier

Trust. This injunction specifically limits its application to “any litigation or

proceeding relating to the administration of the Harrier Trust[.]” (Emphasis added).

The courts of this state have recognized that other Marshall family trusts have been

set up under Louisiana law and that Louisiana has jurisdiction in litigation involving

those trusts but not over the estate of the deceased and that the two can be totally

separate things. See In Re: Howard Marshall Charitable Remainder Annuity Trust,

97-1718 (La. 3/4/98), 709 So.2d 662.

A. Forum Selection Clause

Judge Wilson noted that it was her opinion that the Harrier Trust document

speaks for itself and is controlling since it states that it is to be governed under

Louisiana Law. Preston argues that this provision is not a broad forum selection

clause but merely states that the trustee must apply to the Fourteenth Judicial District

Court when seeking instructions regarding the administration of the trust. According

to Preston, the clause binds only the trustee.

Preston fails to cite the rest of the language contained in the Harrier Trust

Agreement. The Harrier Trust Agreement states that Pierce Sr. is “availing [him]self

of the laws of the State of Louisiana and, in particular, the Louisiana Trust Code,

Louisiana Revised Statute[s] 9:1721, et seq., as amended[.]” Under the section

entitled “Governing Law,” the Harrier Trust Agreement states: “The Trust shall be

governed under the Louisiana Trust Code, Louisiana Revised Statutes 9:1721, et seq.,

as amended. The Trustee shall apply to the 14th Judicial District Court for Calcasieu

11

Parish, Louisiana, for instructions regarding any questions that might arise regarding

administration of the Trust.”

The Harrier Trust is an inter vivos trust. The trust was created prior to Pierce

Sr.’s death and was not created by donation mortis causa. La.R.S. 9:1734.

Alexander and Johnson cite the Louisiana Trust Code at La.R.S. 9:2235(A)(1):

“In the case of an inter vivos trust, the proper court shall be the district court of any

parish that the trust instrument effectively designates as the proper court.” This

provision regarding “the proper court” was enacted by 2010 La. Acts No. 390, §1.

It applies “to all trusts, whether created before or after the effective date of this Act[.]”

Id.

Alexander and Johnson contend that this overruled Spinosa, 934 So.2d 35, on

which Preston relies. Preston asserts that La.R.S. 9:2235 is a definitional clause that

has nothing to do with venue and, therefore, cannot be a forum selection clause.

Johnson and Alexander allege that at the time Spinosa was decided, La.R.S. 9:2235

was worded differently and that there was no other language in the Trust Code that

equated “proper court” to venue. After the 2010 amendments to the Trust Code,

Alexander and Johnson assert that the very language that Spinosa said did not exist

was incorporated into La.R.S. 9:2235, and said language tracks the venue provision

found in La.Code Civ.P. art. 41. Alexander and Johnson specifically cite the

testimony of the bill’s author that his intent was to provide for venue of an inter

vivos trust.

Based on the foregoing arguments, we find that Judge Wilson did not err in

finding that the proper forum for litigation regarding the administration of the

Harrier Trust is the Fourteenth Judicial District Court.

B. Anti-Suit Injunction

12

In Dupre, 656 So.2d 786, the first filed suit was in Tennessee (where the

defendant’s corporate headquarters was located), and the parties conceded that the

two suits were virtually identical. The trial court issued an injunction enjoining the

plaintiffs “from proceeding with the Tennessee lawsuit or any other lawsuit against

the defendant in any court other than the 27th Judicial District Court” of Louisiana.

Id. at 787. The defendant alleged that the plaintiffs were attempting to avoid the

prescriptive period provided under Louisiana law, but this court noted that the

defendant was attempting to avoid the laws of its home state. This court found that

the defendant was not entitled to injunctive relief but stayed the Louisiana

proceedings pending the dismissal or other termination of the suit in Tennessee. The

stay was lifted on rehearing because it granted the defendant relief to which it would

not otherwise be entitled. This court’s decision turned on the fact that the first-filed

suit was in Tennessee.

In this case, the 401 Suit was the first filed. The 402 Suit was next. Neither

of these suits addresses the appointment or payment of co-trustees in the Harrier

Trust because Elaine had not taken any action to appoint co-trustees at the time the

suits were filed. We find that these suits do involve matters that relate to the

administration of the Harrier Trust because they seek to compel Elaine to provide

accountings for it, to make certain disclosures about it, and to have her perform her

duties as required by it.

Almost a year after the 402 Suit was filed, Elaine brought the present action

in the Louisiana court. Elaine then asserted that the Texas probate court lacked

jurisdiction over the Harrier Trust, but, as stated above, the two Texas judges that

have presided over the succession proceedings have rejected that argument.

Next, Elaine appointed the five purported co-trustees. Preston then sought

and was granted injunctive relief in the Texas probate court. That is when Alexander
13

and Johnson joined the suit in Louisiana. A few months later, Preston filed the 404

Suit.

This court stated that “as a general rule, a pending action cannot be enjoined

in a separate action.” Dupre, 656 So.2d at 788. “Louisiana jurisprudence clearly

supports the action of a trial court in appropriate circumstances in enjoining the

prosecution of a suit subsequently filed in another state involving the same

controversy.” Cajun Elec. Power Coop., Inc. v. Triton Coal Co., 590 So.2d 813,

816 (La.App. 4 Cir. 1991)(emphasis added). “[I]njunctions have been granted

against suits in the courts of another state to prevent vexatious harassment,

oppression, or fraud, unconscionable or inequitable advantage, irreparable injury,

evasion of domiciliary laws, etc. However, each case must be determined by its own

facts.” Missouri Pac. Ry. Co. v. Harden, 158 La. 889, 105 So. 2, 4 (La.1925).

An anti-suit injunction should issue where “[t]he two suits are clearly

duplicative, and permitting both suits to continue only thwarts the legitimate effort

to avoid a multiplicity of lawsuits for the benefit of both the litigants and the courts.”

Cajun Elec., 590 So.2d at 818. The courts do not want to promote the multiplicity

of suits because they “are expensive for the litigants and an unnecessary duplication

of judicial time and effort[.]” Transamerica Ins. Co. v. Whitney Nat’l Bank of New

Orleans, 251 La. 800, 206 So.2d 500, 502 (La.1968).

On January 3, 2017, before the 404 Suit was filed, Judge Wilson denied

several exceptions filed by Preston and stated: “I have actually looked at what the

filings are in Harris County[,] and the objects of those suits and the rulings that are

going to be called on the Judge in Texas to make are different: and Louisiana, in

this Court’s opinion, is controlling.” All five of the purported co-trustees are parties

in only one of the Texas probate proceedings. They are not all parties in the

Louisiana suit. But, the single issue concerning the propriety of the appointment of
14

the co-trustees is common to the Harrier Trust litigation in Louisiana and the 404

Suit. Of the two, the Louisiana litigation regarding the Harrier Trust was the first

filed. However, the preliminary injunction is not limited to the 404 Suit. The 401

and 402 Suits relate to the administration of the Harrier Trust as noted above and as

contemplated by the injunction, but they also relate to Elaine’s duties as executrix

of Pierce Sr.’s estate. Thus, Preston cannot be enjoined from pursuing his claims

against Elaine in her capacity as executrix simply because that necessarily involves

the administration of the Harrier Trust.

Moreover, the injunction only bars Preston’s participation in any litigation

related to the administration of the Harrier Trust in any court outside the Fourteenth

Judicial District Court. It places no such restriction on Elaine or the co-trustees.

Accordingly, we find that the injunction is overbroad. For these reasons, we also

find that it was an abuse of discretion for the trial court to issue this preliminary anti-

suit injunction. See Dupre, 656 So.2d 786.

C. Irreparable Harm and Likelihood to Prevail on the Merits

Our finding directly above in B. Anti-Suit Injunction that the trial court

abused its discretion in granting a preliminary injunction that was overbroad

pretermits this discussion.

D. Interference with Texas Probate Court’s Jurisdiction

In granting the preliminary injunction, Judge Wilson did state that “[t]here is

no part of this Court that intends on infringing on the jurisdiction of the succession

of [Pierce Sr., Preston’s father,] that is pending in the State of Texas, the

administration, that is not the purview of this court.” The Louisiana Supreme Court

has recognized that the Louisiana court’s jurisdiction over the Howard Marshall

Charitable Remainder Annuity Trust by virtue of the fact that it was established by

J. Howard Marshall, II (Preston’s grandfather), under Louisiana law did not give
15

Louisiana jurisdiction over the succession proceedings. In Re: Howard Marshall

Charitable Remainder Annuity Trust, 97-1718 (La. 3/4/98), 709 So.2d 662.

Further, Preston’s argument that the Harrier Trust cannot be separated from

Pierce Sr.’s succession is overreaching. The Harrier Trust, along with the EPM

Marital Trust and the Osprey Trust (for the benefit of Pierce), was made a beneficiary

of the Staurolite 2006 Grantor Retained Annuity Trust. The Staurolite is only one

of seven or so annuity trusts that Pierce Sr. had. So, Pierce Sr.’s estate might make

up a large part of the Harrier Trust once it passes through the EPM Marital Trust,

but that will not occur until Elaine dies. The Harrier Trust Agreement specifically

states that it is set up with $1,000.00 and that other property may be added by the

Settlor (Pierce Sr.) or others. Elaine alleges that she has made contributions from

her separate property so that the Harrier Trust now contains upwards of $20 million.

Conversely, in 17-98, In Re: Falcon Trust, which is also a trust set up for Preston’s

benefit, Elaine’s counsel noted that the money in the Falcon Trust came mostly from

Pierce Sr.6

After due consideration of the above, we find the following:

MOTION TO SEAL GRANTED. The motion of Preston L. Marshall to seal pages
369-393 of his writ application is granted, and those documents are ordered to be
filed under seal.

MOTION FOR LEAVE TO FILE SUPPLEMENTAL REPLY BRIEF ON
BEHALF OF PRESTON L. MARSHALL DENIED.

MOTION FILED BY EDWARD ALEXANDER AND ADAM P. JOHNSON
SEEKING LEAVE TO FILE A RESPONSE TO THE SUPPLEMENTAL
REPLY DENIED.

6
Similar trusts were set up for Preston’s brother, Pierce.
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MOTION FOR LEAVE TO FILE A SECOND SUPPLEMENTAL REPLY
BRIEF ON BEHALF OF PRESTON L. MARSHALL DENIED.

WRIT GRANTED AND MADE PEREMPTORY. We find that the trial court
abused its discretion in entering an anti-suit injunction in this case. Dupre v.
Schering-Plough Health Care Prod., Inc., 95-213, (La.App. 3 Cir. 5/31/95), 656
So.2d 786, 788. The judgment of the trial court issuing a preliminary injunction
against Preston L. Marshall is reversed, and the injunction is vacated.

17