STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-667
IN RE: HARRIER TRUST
**********
SUPERVISORY WRIT FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-3020 HONORABLE SHARON D. WILSON, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
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
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. 16 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.