In Re: Marshall Legacy Foundation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-450

IN RE: MARSHALL LEGACY FOUNDATION

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SUPERVISORY WRIT FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-3683
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

WRIT GRANTED IN PART AND DENIED IN PART.
REMANDED WITH INSTRUCTIONS.

Wilford D. Carter
Wilford Carter Law, LLC
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR OTHER RESPONDENT:
Preston L. Marshall

Hunter W. Lundy
Matthew E. Lundy
Rudie R. Soileau, Jr.
T. Houston Middleton, IV
Daniel A. Kramer
Lundy, Lundy, Soileau & South, L.L.P.
501 Broad Street
Lake Charles, LA 70601
(337) 439-0707
COUNSEL FOR OTHER RESPONDENT:
Preston L. Marshall

JeffreyW. Chambers
Chambers Law Group
711 Louisiana Street, Suite 2150
Houston, TX 77002
(713) 438-5244
COUSEL FOR OTHER RESPONDENT:
Preston L. Marshall

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

Michael Reese Davis
Tim P. Hartdegen
Hymel Davis & Petersen, LLC
10602 Coursey Blvd.
Baton Rouge, LA 70816
(225) 298-8118
COUNSEL FOR OTHER APPLICANT:
Elaine T. Marshall

Todd S. Clemons
Janet D. Madison
Todd Clemons & Associates
A Professional Law Corporation
1740 Ryan Street
Lake Charles, LA 70601
(337) 477-0000
COUNSEL FOR OTHER APPLICANT:
Dr. Stephen D. Cook

Cathryn E. Gits
Assistant Attorney General
1885 N. 3rd Street
Baton Rouge, LA 70802
(225) 326-6400
COUNSEL FOR OTHER RESPONDENT:
Louisiana Attorney General Office

SAUNDERS, Judge.

In consideration of the companion Writ Application No. 19-328, Relator,

Elaine, seeks review of the trial court’s allocation of her motion to recuse Judge

Ware to the Honorable G. Michael Canaday (Judge Canaday).1

STATEMENT OF THE CASE
This matter arises out of the succession of E. Pierce Marshall, Sr. (Pierce Sr.),

who died in 2006. The litigation regarding the Marshall family fortune includes suits

filed in both state and federal courts of Louisiana, as well as in Texas and Wyoming

In 2011, Elaine set up the Peroxisome Trust, a Louisiana Irrevocable trust.

Preston and his brother, Pierce, Jr. were named co-trustees and co-remainder

beneficiaries of the trust. Also named as beneficiary of the Peroxisome Trust was

the Marshall Heritage Foundation (the Heritage trust). Pierce Sr. was the sole trustee

of the Heritage trust from its foundation in 1995, until the trust instrument was

amended to name Dr. Cook as its sole trustee in 1997. In 2007, Dr Cook appointed

Elaine, Preston, and Pierce Jr. as his co-trustees of the Heritage trust. A designated

annuity was to be paid to the Heritage trust over twenty years, and the remainder

was to be divided between Preston and Pierce Jr.

The dispute giving rise to the issue in this Writ Application arose upon the

division of the Heritage trust. Upon request by Elaine, the trial court ordered that

the Heritage trust be divided into two foundations: the first to remain the Marshall

Heritage Foundation (the Heritage trust), and the second to be called the Marshall

Legacy Foundation (the Legacy trust). The Legacy trust was to be governed by

Elaine, Dr. Cook, and Preston, as co-trustees. However, Preston took issue with the

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The motion to recuse Judge Ware was set for hearing on June 24, 2019, but it has been
continued to July 15, 2019. On May 9, 2019, Elaine and Dr. Cook also filed a motion to recuse
the entire 14th JDC, but that matter has not been set for hearing.

classification of the new foundations, arguing that the division of the original

Heritage foundation resulted in the formation of two, wholly new entities.

The Legacy trust’s funds were placed in a bank account at Frost Bank and a

brokerage account at Frost Brokerage in Houston, Texas. The account required two

signatures for transactions. A Marshall family company, MarOpCo, Inc. (MarOpCo),

issued checks and handled the financial administrative tasks for the Legacy trust.

Preston refused to sign several checks for grants and instructed Frost Bank to place

a debit hold on all activity for the Legacy trust. Approximately $12,849,000.00 was

subject to the hold which was placed by Frost. On September 4, 2015, in response

to Preston’s actions, Elaine and Dr. Cook moved the Legacy trust’s financial

accounts to Northern Trust in Dallas, Texas. Then, on September 8, 2015, Elaine

wrote a letter to Preston informing him that she and Dr. Cook were revoking any

outstanding delegations of authority to him. However, because Preston refused to

take action necessary to effectuate Dr. Cook’s being an authorized signor on the

accounts of the Legacy trust, Elaine and Dr. Cook voted and passed a resolution

between September 14-15, 2015, that removed Preston as co-trustee.

19-328: In Cook v. Marshall, 17-5368, slip op. (E.D. La. 2019) appeal

docketed, No. 19-30200 (5th Cir. 2019), the court granted a motion for summary

judgment filed by Dr. Cook as the trustee of the Heritage trust. The court found that

no amendment was necessary and declared that as co-trustee of the Peroxisome Trust,

Preston is obligated to assure the distribution of funds owed to the Heritage trust as

a beneficiary of the Peroxisome Trust and that his continued refusal to authorize

such distributions is a breach of trust and a breach of his fiduciary duties.

Based on the ruling in Cook, 17-5368, Elaine and Dr. Cook filed exceptions

of res judicata. The trial court held a hearing on April 2, 2019, and denied the

exception. Elaine and Dr. Cook timely filed a notice of intent to seek supervisory
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writs, and the trial court set a return date of May 2, 2019. This writ application was

timely filed, and Preston filed an opposition. Elaine and Dr. Cook filed a supplement

to inform the court of a June 24, 2019 hearing on the motion to recuse and a reply to

Preston’s opposition.

19-450: After the hearing on the exception of res judicata, Elaine filed a

motion to recuse Judge Ware, Division H, after which he referred the motion for

random allotment to another judge. It was assigned to Judge Clayton Davis,

Division B, who self-recused because his former law partner represents Preston, and

the motion was randomly assigned to Judge Ritchie, Division E, who is the subject

of a motion to recuse in In Re: Peroxisome Trust. By order dated April 30, 2019,

Judge Ritchie sent the motion for random assignment, but ordered that Judge Sharon

Wilson, Division F, who was already the subject to a motion to recuse by Preston in

a related case, be removed from the process. The motion was finally assigned to

Judge Canaday, Division G, but Elaine challenges the appropriateness of this

allotment.

On May 24, 2019, in the matter captioned, In Re: The Peroxisome Trust,

number 2015-4582 on the docket of the 14th JDC, before Judge David A. Ritchie

(Judge Ritchie), this court ruled, in pertinent part, as follows:

WRIT GRANTED IN PART AND DENIED IN PART.
REMANDED WITH INSTRUCTIONS. We find that the interests
of justice warrant the appointment of a judge ad hoc to preside over this
matter. In Re: Harrier Trust, 18-1467 (La. 2/18/19), 263 So.3d 884.2
The rulings denying the motions to recuse Judge David A. Ritchie and
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Judge Harry Randow was appointed to preside over the case in In Re: Harrier Trust, 18-1467, p.
1 (La. 2/18/19), 263 So.3d 884, 884, after the Louisiana Supreme Court considered Preston’s
motion to recuse Judge Wilson and stated:

Considering the unique facts presented in this case and the exercise of our plenary
authority pursuant to La. Const. Art. V, §5(A), we find the interests of justice
warrant the appointment of a judge ad hoc to preside over this matter. The specific
appointment will be made in a separate order accompanying this opinion. Because
this appointment renders the recusal issues moot, the applications are denied in all
other respects.

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Judge Robert L. Wyatt are vacated, and the matter is remanded for the
appointment of a judge ad hoc to hear the pending motions to recuse.

ON THE MERITS

Motion to Recuse
Louisiana Code of Civil Procedure Article 153 states:
Until a judge has recused himself, or a motion for his recusal has
been filed, he has full power and authority to act in the cause. The judge
to whom the motion to recuse is assigned shall have full power and
authority to act in the cause pending the disposition of the motion to
recuse.

Further, La,Code Civ.P. art. 155(b) states: “In a district court having more

than two judges, the motion to recuse shall be referred to another judge of the district

court for trial through the random process of assignment in accordance with the

provisions of Code of Civil Procedure Article 253.1.” Louisiana Code of Civil

Procedure Article 253.1 provides two methods of random assignment: (1) drawing

indiscriminately from a pool containing all sections or divisions in the jurisdiction

in which the case is filed, or (2) a properly programmed electronic device or

computer programmed to randomly assign the case to any one of the sections or

divisions in the jurisdiction in which the case is filed.

Counsel for Elaine argues that Judge Ritchie was without authority to order

that Judge Wilson be excluded from the random allotment process once he decided

to refer the motion to recuse to another judge for hearing. Counsel for Preston argues

that Judge Ritchie removed Judge Wilson from the possible divisions for allotment

because she had already been removed in In Re: Harrier Trust. He points out that

counsel for Elaine does not complain about Judge Ritchie’s removal of the other two

judges (as well as his own self-recusal) from the possible divisions and that Judge

Ritchie was “acting to conserve judicial resources” by removing the divisions to

which had already either self-recused or been recused in related matters. Judge

Cutrer, Division I, was not excluded from the possible divisions even though she has
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a financial interest in the Harrier Trust as a co-trustee. That leaves only four other

judges to whom the case might be assigned.

This litigation is complex, multi-faceted, and of a very long duration. As such,

we find that the interests of justice warrant the appointment of a judge ad hoc to

preside over this matter. In Re: Harrier Trust, 18-1467, (La. 2/18/19), 263 So.3d

884, and In Re: The Peroxisome Trust, 19-386 (La.App. 3 Cir. 5/24/19) (unpublished

writ decision), writ denied, 19-896 (La. 6/12/19), ___ So.3d ___. As such, the ruling

referring the matter for random allotment, but excluding Judge Sharon D. Wilson

from the random allotment process, is vacated. Accordingly, in light of the pending

motion to recuse the entire Fourteenth Judicial District Court filed by Elaine

Marshall and Dr. Stephen Cook, this court declines to order that the motion to recuse

Judge Ronald F. Ware be randomly allotted for hearing as requested by Relator,

Elaine Marshall. Instead, this court remands the matter and orders that the

Fourteenth Judicial District Court request the immediate appointment of a judge ad

hoc by the Louisiana Supreme Court to hear the pending motions to recuse.

WRIT GRANTED IN PART AND DENIED IN PART. REMANDED WITH
INSTRUCTIONS.

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