In Re: Marshall Legacy Foundation

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

24-245

IN RE: MARSHALL LEGACY FOUNDATION

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

CHARLES G. FITZGERALD JUDGE

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

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

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

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

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

Jeffery W. Chambers Chambers Law Group 711 Louisiana Street, Suite 2150 Houston, Texas 77002 (713) 438-5244 Counsel for Appellant: Preston L. Marshall Michael Reese Davis Tim P. Hartdegen Hymel Davis & Petersen, LLC 10602 Coursey Blvd. Baton Rouge, Louisiana 70816 (225) 298-8118 Counsel forAppellee: Elaine T. Marshall, Co-Trustee of the Marshall Legacy Foundation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the litigation.” Id. at 810.

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

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

to tax costs in their representative capacities.

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

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

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

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

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

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

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

Cook, as trustees of the Marshall Legacy Foundation.

AFFIRMED AS AMENDED.