Successions of Powell

64 So. 3d 267, 2011 La. App. LEXIS 383, 2011 WL 1135460
CourtLouisiana Court of Appeal
DecidedMarch 29, 2011
DocketNo. 10-CA-480
StatusPublished
Cited by1 cases

This text of 64 So. 3d 267 (Successions of Powell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Successions of Powell, 64 So. 3d 267, 2011 La. App. LEXIS 383, 2011 WL 1135460 (La. Ct. App. 2011).

Opinion

JUDE G. GRAVOIS, Judge.

| ¡Appellant, Eulalie Anna Mott (“Mrs. Mott”), appeals various judgments rendered by the trial court in the Succession of Adrian Frayle Powell and Robert Glen Powell, of which Mrs. Mott was executrix. In particular, Mrs. Mott appeals judgments rendered by the trial court in the succession proceeding that: 1) ordered her to return the value of certain assets that she had transferred out of a certain trust that she administered as trustee back to the trust; 2) established the amount of attorneys’ fees chargeable to the trust that she incurred for legal matters involving the trust; and 8) set her fee as trustee of the trust. For the reasons that follow, we affirm the judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

Adrian and Robert Powell (“the Pow-ells”), husband and wife for more than twenty years, entered into a revocable living trust (“the Powell Living Trust” or “the Living Trust”) on May 29, 1996 and funded it exclusively with community property assets. They both executed their last wills and testaments on that same date. Upon Mrs. Powell’s death on January 22, 1997, the assets contained in the |sLiving Trust were divided into three sub-trusts pursuant to the terms of the Living Trust. Mr. Powell’s half of the community property (approximately $925,000 in value) went into the Robert Powell Survivor Trust (referred to in the Living Trust as “Survivor’s Share One” and sometimes referred to herein as “Mr. Powell’s Trust”). The other half of the community property was divided into the Adrian Powell Family Trust (referred to in the Living Trust as “Family Trust” and “Family Share”) and the Adrian Powell Survivor Trust (referred to in the Living Trust as “Survivor’s Share Two”) (sometimes collectively referred to herein as “Mrs. Powell’s Trusts”). The Adrian Powell Family Trust initially contained $600,000 in value. The Adrian Powell Survivor Trust initially contained approximately $325,000 in value.

Mr. Powell was the surviving trustor,1 trustee and income beneficiary of all three trusts. The trust instrument specifically provided that Mr. Powell was individually entitled to receive discretionary payments of principal from all three trusts, as more fully described below. Mrs. Mott and Diane Adrienne Vedrenne, Mrs. Powell’s daughters by a previous marriage, were the principal beneficiaries of Mrs. Powell’s Trusts. Mark and James Mowrey (“the Mowreys”) were the principal beneficiaries of Mr. Powell’s Trust.

Upon Mrs. Powell’s death, Mr. Powell, as the sole trustee of all three trusts, administered all three trusts until his death in January of 2008, whereupon he was succeeded as trustee of all three trusts by Mrs. Mott as per the trust instrument. On February 12, 2008, Mrs. Mott opened a succession proceeding on Mr. and Mrs. Powell and applied for letters testamentary, which she received on February 13, 2008. In the course of her duties as trustee of Mr. Powell’s Trust and as executor |4of Mr. Powell’s estate, disputes arose between Mrs. Mott and the Mowreys regarding actions taken by her as trustee of Mr. Powell’s Trust.

[270]*270On May 28, 2008, the Mowreys filed a Motion for Expedited Hearing in the succession proceeding, asserting that shortly after Mr. Powell’s death, Mrs. Mott wrongfully withdrew from Mr. Powell’s Trust a trustee fee of $125,255.15, being approximately 5% of the corpus of Mr. Powell’s Trust. The Mowreys later also objected to Mrs. Mott’s transferring shares of Johnson & Johnson stock from Mr. Powell’s Trust directly to Mrs. Powell’s Trusts, of which she was a beneficiary, in violation of the trust documents and her fiduciary duty owed to the Mowreys as trustee. Additionally, among other things, the Mowreys also objected to the nature and amount of various attorneys’ fees that Mrs. Mott charged to and paid from Mr. Powell’s Trust.

After a contradictory hearing, by judgment dated November 18, 2008, the trial court ordered Mrs. Mott to return to Mr. Powell’s Trust the sum of $276,376.23 related to the shares of Johnson & Johnson stock that Mrs. Mott had transferred from Mr. Powell’s Trust to Mrs. Powell’s Trusts while serving as successor trustee of Mr. Powell’s Trust. That judgment also determined that Mrs. Mott’s trustee fee would be set at 1% of the first million dollars, .80 percent of the second million dollars, and .65 per cent of the third million dollars, of the final and total amount of the corpus of Mr. Powell’s Trust. By judgment dated July 31, 2009, the trial court also determined that $35,621.25 in attorneys’ fees that Mrs. Mott incurred would be chargeable to Mr. Powell’s Trust. Mrs. Mott has devolutively appealed these judgments.

On appeal, in her three assignments of error, Mrs. Mott argues that: 1) Mr. Powell exceeded his authority as trustee when, while trustee of both his own trust and his wife’s trusts, he transferred principal (shares of Johnson & Johnson stock | sand other cash) from Mrs. Powell’s Trusts to his own trust; 2) the attorneys’ fees the court allowed her to charge to Mr. Powell’s Trust were inadequate and contrary to law; and 3) the trustee fee awarded to her by the trial court was also inadequate and not supported by law.

The Mowreys filed an Answer to Mrs. Mott’s appeal, alleging that the Judgment of Possession rendered in the succession proceeding on March 3, 2010 reflected that Mrs. Mott accepted a reimbursement for a tax deduction previously disallowed to her by a judgment of the trial court dated December 3, 2009 as a compromise towards final conclusion of the trust and succession proceeding without any further hearings. Because Mrs. Mott filed this appeal, thus dragging out the litigation (in their opinion), the Mowreys seek an order modifying the Judgment of Possession compelling Mrs. Mott to return the sum of $19,117.05 attributable to the tax deduction previously disallowed by the district court.

APPLICABILITY OF LAW OF THE CASE DOCTRINE

Initially, we note that the Mowreys have objected to appellate review of Mrs. Mott’s first and third assignments of error, arguing that the “law of the case” doctrine is applicable herein. Following the adverse rulings by the trial court on these issues, Mrs. Mott sought a writ of review of these issues with this court in writ number 08-C-1277 (La. 5 Cir. 2/4/09) (unpublished writ disposition). The Mowreys argue that the law of the case doctrine precludes a second review, on appeal, of the trial court’s rulings on these issues.

It is true that generally, when an appellate court considers arguments made in supervisory writ applications, the court’s disposition on the issue considered becomes the “law of the case,” foreclosing re-litigation of that issue either at the district court on remand or in the appellate court on a later appeal. However, the | ^denial of [271]*271a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Cotton v. Gaylord Container, 96-1958, 96-2029, and 96-2049 (La.App. 1st Cir.3/27/97), 691 So.2d 760, 763, writ denied, 97-0800 (La.4/8/97), 693 So.2d 147.

This Court’s disposition of said writ number 08-C-1277 is as follows:

After review of the writ application and the attachments thereto, including the supplementing transcript, we find no error in the judgment complained of.

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Bluebook (online)
64 So. 3d 267, 2011 La. App. LEXIS 383, 2011 WL 1135460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/successions-of-powell-lactapp-2011.