Preston Marshall v. Elaine T. Marshall

• Court: Louisiana Court of Appeal
• Decided: July 26, 2023
• Docket: CA-0023-0132
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 23-132

PRESTON MARSHALL

VERSUS

ELAINE T. MARSHALL

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2022-0144 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

SHANNON J. GREMILLION

JUDGE

Court composed of Shannon J. Gremillion, Charles G. Fitzgerald and Gary J. Ortego, Judges.

MOTION TO SUPPLEMENT RECORD DENIED. James Michael Garner Ashley G. Coker Sher, Garner, Cahill, Richter, Klein & Hilbert, L.L.C. 909 Poydras Street, Suite 2700 New Orleans, LA 70112 (504) 299-2100 COUNSEL FOR PLAINTIFF/APPELLEE: Preston Marshall

Phillip W. DeVilbiss Kean Miller, L.L.P. 4865 Ihles Road Lake Charles, La 70605 (337) 430-0350 COUNSEL FOR DEFENDANT/APPELLANT: Ehlers and Associates, CPA’s, L.L.C. Terranova Williams Klein, CPA’s, L.L.C.

Daniel A. Kramer Lundy, Lundy, Soileau & South, L.L.P. Post Office Box 3010 Lake Charles, LA 70602 (337) 439-0707 COUNSEL FOR PLAINTIFF/APPELLEE: Preston Marshall

Taylor Ashworth Kean Miller, L.L.P. 600 Jefferson Street, Suite 1101 Lafayette, LA 70501 (337) 235-2232 COUNSEL FOR DEFENDANT/APPELLANT: Ehlers and Associates, CPA’s, L.L.C. GREMILLION, Judge.

Appellants, Terranova Williams Klein CPA’s, LLC and Ehlers and Associates,

CPA’s LLC, have filed a motion to supplement the appellate record. For the reasons

set forth herein, we deny the motion

Appellants are non-parties to litigation pending in Texas Probate Court entitled

Preston Marshall v. Elaine T. Marshall, as Trustee of the Marshall Grandchildren’s

Trust, No. 443778. There is no underlying litigation in Louisiana district court. The

instant matter began in Louisiana district court on February 11, 2022, when

Appellants initially objected to subpoenas issued by Appellee, Preston Marshall, in the

Texas proceeding pursuant to La.R.S. 13:3825, the Louisiana Uniform Interstate

Deposition and Discovery Act. On February 22, 2022, Appellants filed a Motion to

Quash and for Protective Order wherein they sought to quash any and all subpoenas

and subpoenas duces tecum issued by Appellee for documents belonging to their

client, Elaine T. Marshall. In response, on March 15, 2022, Appellee filed a Cross

Motion for Contradictory Hearing for Issuance of Subpoenas Duces Tecum to

Accounting Firms to Produce Trust Records. Following a hearing held on July 12,

2022, Appellants’ motion was denied, and Appellee’s cross motion was granted in

part and deferred pending and in camera inspection of certain documents. A written

judgment was signed on August 1, 2022.

Appellants subsequently filed a Notice of Intent to Apply for Supervisory Writ

and Motion to Set Return Date. On January 23, 2023, this court converted the writ

application to an appeal. The instant appeal was then lodged in this court on March

10, 2023.

On May 18, 2023, Appellants filed peremptory exceptions of mootness and lack

of jurisdiction in the instant appeal. In those exceptions, Appellants explain that the

judgment at issue orders Appellants to respond to discovery subpoenas issued in a

lawsuit in Texas Probate Court that has already been tried to a conclusion. Although Appellee, Preston Marshall has judicially admitted that the Texas lawsuit has been

tried, out of an abundance of caution, Appellants request that the appellate record be

supplemented to include a certified copy of the final judgment rendered in the Texas

lawsuit.

Appellants argue that this court is entitled to supplement the record pursuant to

La.Code Civ.P. art. 2132, which reads:

A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.

Appellants refer to comment (b) to the Official Revision Comments to Article 2132

which provides that the “record should represent the truth.” Appellants urge that to

ensure that the record reflects the truth about the underlying Texas lawsuit, the

appellate record should be supplemented to include a certified copy of the Texas

Probate Court’s judgment. Appellants maintain that the fact that the case from which

this discovery order stems has been tried to a conclusion is a fact that the parties are

obligated to bring to this court’s attention. See St. Charles Parish School Bd. v. GAF

Corp., 512 So.2d 1165 (La.1987).

If this court does not order the record supplemented on its own accord,

Appellants assert that this court should order the district court to admit the final

judgment from the Texas lawsuit into the suit record below, and then provide that

final judgment to this court so that it can be supplemented into the appellate record.

In opposition to the motion to supplement the record, Appellee objects to

Appellants’ reference to facts outside the record of this case, which was fixed as of the

trial court’s August 1, 2022 judgment. Appellee asserts that pursuant to La.Code

Civ.P. art. 2164, an appellate court can only render a judgment “upon the record on

appeal.” An appellate court, Appellee maintains, cannot review evidence that is not in

2 the record on appeal and cannot receive new evidence. City of Hammond v. Par. of

Tangipahoa, 07-574 (La.App. 1 Cir. 3/26/08), 985 So.2d 171. Appellee urges that

Appellants have attempted to put forth new evidence and facts that have occurred after

the trial court issued its ruling. Appellee does not deny that the Texas Probate Court

rendered judgment after a jury trial. Appellee argues, however, that the fact that the

case is still pending makes Appellant’s motion to supplement the record immaterial.

Appellee contends that the evidence is irrelevant because it does not prove Appellants’

assertion that the controversy is moot. Appellee concludes that the final judgment

rendered in the Texas lawsuit cannot be considered as part of this court’s record when

Appellants have raised substantive issues regarding Louisiana privileges over

documents for a Texas probate trust with a Texas trustee and such issues were fixed as

of the trial court’s August 1, 2022 judgment.

We note that the final judgment of the Texas Probate Court was not considered

by the trial court in denying Appellants’ motion to quash and for protective order and

granting Appellee’s cross motion. Since an appellate court cannot review evidence

that is not in the record on appeal and cannot receive new evidence, we deny

Appellant’s motion to supplement the record.

MOTION TO SUPPLEMENT RECORD DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform Rules―Courts of Appeal, Rule 2-16.3.