In Re: Interdiction of Timothy R. Mashburn

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA cD G J COURT OF APPEAL Z RST CUIT F CTR N CJ1 2012 CA 1444 IBER Y IN RE INTERDICTION OF TIMOTHY R NIASHBiJRN Judgment Rendered aPR 3 0 013 Appealed from the 21 st Judicial Distriet Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 2010 0001452 Honorable W Ray Chutz Judge L Kevin Coleman Mandeville LA ttorney for Appellants Joseph Patton PaY lashburn 1and Richard Anthony Mashburn in their capacities as the Trustees Co ofthe Mashburn Family Trust and Joseph P Mashburn and Don Mashburn in their capacities as Trustees Co and Managing Trustees ofthe Jack and Sadie Pugh Mashbum Marital Trust Walter Antin Hammond Jr LA Attorney for Appellee Timothy R Mashburn BEFORE PARRO WELCH AND KLINE JJ iLouisiana Hon William F Court Jr retired is serving as judge ad hoc by special appointxnent of the Kline Supreme WELCH J In this interdiction proceeding the appeilants Joseph Patton Pat Mashbum and Donald J Don Mashburn in their capacities as the co 1 trustees and managing trustees of the Jack and Sadie Pugh Mashburn Marital Trust marital ttust and Pat Mashburn and Richard Aa 1 in their capacities 4ashburn as the co of the Mashburn Fa Trust family trust appeal a trial trustees nily court judgment awarding the defendant Timothy Tim R Mashburn a beneficiary of both the marital and family trusts the costs and attorney fees that he incurred in defending this action Also before this court is an answer to the appeal filed by Tim Mashburn We affirm the judgment of the trial court deny the answer to appeal and issue this memorandum opinion in compliance with Uniform Courts Rules of Appeal Rule 2 B 1 16 In separate but related proceedings the marital and family trusts have been the subject of extensive contentious litigation in both the district court and in this court Most of this litigation has involved suits by Tim Mashburn against the appellants i the managing co of the marital trust or the co of e trustees trustees the family trust or both and although the appellants and Tim Mashburn are siblings it is evident that their relationship is acrimonious On April 8 2010 the 2 See In Re Mashburn Marital Trust 2004 La App l Cir 12 924 So 242 1678 OS 29 2d wxit denied 2006 La 9 937 So 384 Mashburn Marital Trust I In Re 1034 06 22 2d Mashburn Marital Trusts 2006 2006 2005 La App l Cir 12 951 0741 0742 0887 06 28 2d So 1136 writs denied 2007 2007 La 4954 So 164 167 Mashburn 0403 0446 07 20 2d Marital Trust II In Re Mashburn Marital Trust 2006 2006 2005 La 1753 1754 0887 App l Cir 12 947 So 852 unpublished opinion writs denied 2007 and 06 28 2d 0403 0446 2007 La 4 954 So 164 and 167 Mashburn Marital Trust III In Re 07 20 2d Mashburn Marital Trusts 2008 La App l Cir 10 994 So 157 unpublished 0450 08 31 2d opinion Mashburn Marital Trust IV In Re Mashburn Marital Trust 2010 I 0278 a App l Cir 12 52 So 1136 writ denied 20ll La 5 63 So 978 10 22 3d 0177 11 20 3d Mashburn Marital Trust V In Re Mashburn Marital Trust 2010 La App l 1104 10 22 3d Cir12 52 So ll27 writs denied 2011 20ll La 563 So3d 981 0474 0490 11 20 Mashburn Marital Trust VI In Re Mashburn Marital Trusts 2010 La App l 1819 Cir 3 58 So3d 1154 unpublished opinion writ denied 20ll La 5 11 25 0818 ll63 20 So3d 988 Mashburn Marital Trust VII In Re Mashburn Marital Trust 2012 1382 La App l Cir 13 24 4 3d So unpublished opinion Mashburn Marital Trust VIII In Re Mashburn Marital Trusts 2012 La App 1 Cir 4 So3d 177s 13 30 Mashburn Marital Trust IX and In Re Mashburn Marital Trust 2012 La App 1774 l Cir 4 13 30 So3d unpublished opinion Mashburn Marital Trust X 2 appellants commenced this action seeking to interdict Tim Mashburn based on behaviar that he had been exhibiting in both his dealings with his siblings and others and his continuing pursuit of litigation anvolving the trusts A psychiatrist was eventually appointed by the trial court to conduct a psychiatric evaluation of Tim Mash ai a repa dated 1 29 2011 the aum rt larch psychiatrist determined tnat alt Tizn Mashburn had a mental illness a h ouu limited interdiction was not ap at that time because his infirmity ropriate did not render him incapable of making reasonable decisions regarding his property Ultimately the appellants with the agreement of Tim Mashburn filed a motion to dismiss the interdiction proceeding without prejudice which was granted by the trial court Thereafter in accordance with La C art 4550 Tim Mashburn filed a P motion seeking an award of attomey fees and costs he incurred in defending this action This motion sought attorney fees for Tim Mashburn initial attomey in s this proceeding Walter Antin Jr who is aIso Tini iVlashburn attorney in the s trust litigation Tim Mashba subsequent cc appointed attarney Jessica s m urt 3 Louisiana Code of Civil Procedure article 4541 provides Yhat a pexson may petition A ny for the interdiction of a natural person of the age of majority or an emanc minor In this pated case Pat Mashburn Don Mashburn and Richard Mashburn did not institute this action individually but rather in their capacities as co of the family trust and as co trustees or trustees and managing trustees of the marital trust Louisiana Revised Statutes 9 provides 2091 that a trustee is under a duty to a beneficiary to take reasonable steps to take keep control of and preserve the trust property Based on the specific allegations of the petition and supporting documentation attached to the petition relative to the behavior of Tim Mashburn with regard to his trust and his litigation with Tegard to the trust it is apparent that this action was brought and maintained in order to protect the marital and family trusts and the property of those trusts Accordingly Pat Mashburn Don Mashburn and Richazd Mashburn in their capacities as co trustees and managing trustees of the marital and family trusts had a sufficient interesY to or bring suit in Yhat capacity See generallv Interdiction of Giacona 158 La 148 103 So 721 1925 4 The mental illness diagnosed by the psychiatrist was Personality Disorder Not Otherwise Specified The psychiatrist also noted that Tim N had expressed paranoid beliefs ashbum obsessive and ruminative thoughts and a general beIief that others were not acting in his best interest that those thoughts and beliefs had hindered his ability to work productively and hurt his personal relationships and that a of psychotropic medieation was warranted trial 3 Westmoreland was previousJ awarded costs and attorney fees incurred in this y action by order ofthe trial court on Septernber 14 2011 On June 11 2012 the triAl court rendered and signed a judgment in Tim sfavor ar against the peti in tk ar of 3 for costs Mashburn d tioners ount 446 51 and attorney fees plus l in from t1 date of judicial deanand until paid gal erest e From this judgment the ap appeal essenriaily arguing that the trial court ellants erred in assessing attorney fees against them because there was no showing that they instituted the interdiction proceeding in bad faith and because the trial court had already awarded attorney fees to Tirn J c appointed attorney s ashburn urt Tim Mashbum has answered the appeal se nnodification of the judgment to king clarify that the appellants personally and not the trusts are liable for the payment of the monies awardzd by the judgment and also seaking an award of attorney fees costs and damages for frivolous appeal agai stthem In an interdiction proceeding t court may render judgment far costs he and attorney fees or any part thereof against any party as the court may consider fair However no attorney fees shall be awarded to a petitioner when judgment is granted against the petitioner ar the petition is dismissed on the merits La P C art 4550 This court has interpreted the term fair as used in La C P art 4550 as synonymous with reasonarle th usual standard employed by our courts in considering an award of attorney fees In re Int of DeMarco rdiction 1791 2009 La App lCir 4 38 So3d 417 426 In making an award of 10 7 attorney fees the trial court is vestdd with cansiderable discretion and the award will not be disturbed in the absenee of a clear abuse of that discretion Capital City Press v The Board of Supervisors of Louisiana State University 2001 1692 La App 1 Cir 6 822 So 728 731 02 21 2d 5 The September 14 20ll award of attorney fees and costs to Jessica Westmoxeland has not been challenged by the appellants 4 Although La C art 4550 itself does not require a showing of bad faith P in order to assess one party with another party attorney fees the appellants argue s that the jurisprudence does require such a slnowing and since the record established that tha appellants were iiot in bad faith in instituting this interdiction proceeding the trial court erred in assessing therr iwith Tim lashburn attorney s fees In support of this argu the appellants cite In the Matter of Fabre 371 nent 2d So 1322 1327 La 1979 In Re Inter of Cade 2004 La App diction 1619 3 Cir 4 899 So 844 848 w denied 2005 La 6 904 OS 6 2d rit 1104 OS 17 2d So 697 and In Re Interdiction of Stephens 40 La App 2 Cir 6 965 06 2 930 Sa2d 1222 1228 wrii denied 2006 La 7 933 So 796 6 16 06 12 2d While we agree with the appellants that the record establishes that they were not in bad faith in instituting this action we have reviewed the cited jurisprudence and disagree that such a showing is necessary for the assessment of another party s attorney fees Rather in our view the good or bad faith of a litigant in an interdiction proceeding is simply a factar to be considered by the trial court when I considering what is fair or aaa able equir solutiod regarding the allocation of costs and attorney fees See Fabre 371 So at 1326 In this case after a 2d 1327 hearing the trial court considered it Yair or to assess costs and attorney fees in the amount c 3 against the appellants This award was f 446 51 based on the actual work performed by Mr Mashburn attorney as evidenced by s the attorney billing statements Based on our review of the record we cannot say s that the trial court abused its discretion Furthermore to the extent that Tim 6 See footnote 4 We recognize that Fabre was decided under former La C art 4551 which provided that P the cost of an interdiction pxoceeding should be paid from the estate of the defendant if a judgment of interdiction was rendered however the formar article also provided that if judgment was rendered in favor f the defendant the court in its discretion could tax the costs or any part thereof against any par y 5 s Mashburn court appointed attorne had al bevri awarded attomey fees and ady costs we note ihat that award rela sol to t worlc that Ms Westmoreland ed ly ie performed in the case as detailed i hez prraees cer We see no reason why the n ba attorney fees for work performed by Tim IVlash previous counsel Mr Antin s urr should not likezvise be awardeci under I C art 4550 a P With regard to Tim Mashburn sanswer to the appeal relative to liability for the award of attorney fees in In Re Mashburn Marital Trust 2010 La 0278 App l Cir 12 52 So3d 1136 1143 writ denied 2011 La 10 22 1145 OT77 11 20 5 63 So3d 978 Mashburn Marital Trust V we determined that despite the self nature of the litigation pursued by Tim Mashburn and serving Helen Mashburn Penton the titigation expenses incurred by the co of the trustees family trust and the managing co of the flnaritai trust would be assessed pro trustees rata from the income and if necessary from the principal of all nine individual marital trusts and all nine individual famil trusYs because the litigation was necessary to protect the trusts or trust propertv Because the record reveals that the current proceeding v also brought and maintained by the appellants in order to ras protect the marital and family iz ana the property of those trusts and far the xsts reasons expressed in Mashburn Marital Trust 52 So at 1143 we 3d 1145 conclude that the trial court properly assessed the litigatian expenses incurred by the co of the family trust and the managing co of the marital trust trustees trustees pro rata from the income and if necessary from the principal of all nine individual marital trusts and all nine inclividual family trusts Lastly with regard to Tim Mashburn request for an award of attomey fees s costs and damages for frivolous appeal in order to assess damages for frivolous appeal it must appear that the appeal is taken solely for the purpose of delay ar that counsel does not seriously believe the view of the law that ne advocates 8 See footnote 3 6 Mashburn Marital Trust V 2 Se at 114 Although we ultimately disagree 3d with the appellants argu r3 appeal w car say that this appeal was taken cnents ot solely for the purpose of delay or harassrnent or that cc for adid not unsei pellants seriously believe the positio he v 7 cated Thus Tim M request for s shburn damages for frivolous appeal is dzaaied For all of the above nd i oregoin rea EYcz Ju 1 l 2012 judgment of s a ne the trial court is affirmed and Tim Mashbnrn answer to the appeal is denied All s costs of this appeal are assessedl to the ap oseph Patton lashburn and ellants Donald 7 Mashburn in their capacities as the co and managing trustees of trustees the Jack and Sadie Pugh Mashburn 1Vlarital I and Pat Mashburn and Richard e A Mashburn in their capacities as the co of fhe Mashbu rustees nFamily T rust AFFIRMED ANSWER TO APPEAL DENIED 7 I

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