In re: Marshall Legacy Foundation

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 24-245

IN RE: MARSHALL LEGACY FOUNDATION

********** 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 Poydras Street, 27th Floor New Orleans, Louisiana 70112 (504) 299-2100 Counsel for Appellant: Preston L. Marshall Ezra Pettis, Jr. Pettis Law Firm, LLC 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. Broad Street Lake Charles, Louisiana 70601 (337) 439-0707 Counsel for Appellant: Preston L. Marshall Jeffery W. Chambers Chambers Law Group 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 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

This memorandum opinion is issued in compliance with Uniform Rules—Courts of Appeal, Rule 2–16.1(B).

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.