IN RE EDWARD ALEXANDER, ADAM JOHNSON, WAYNE THOMPSON, JR., LILYNN CUTRER, AND KAREN AUCOIN, INDIVIDUALLY AND AS CO-TRUSTEES, Relators
ORIGINAL PROCEEDING WRIT OF MANDAMUS Probate Court No. 4
Harris County, Texas Trial Court Cause Nos. 365, 053 &
consists of Justices Wise, Jewell, and Bourliot.
FRANCES BOURLIOT JUSTICE
Edward Alexander, Adam Johnson, Wayne Thompson, Jr., Lilynn
Cutrer, and Karen Aucoin, Individually and as Co-Trustees
filed a petition for writ of mandamus in this court.
See Tex. Gov't Code Ann. § 22.221; see
also Tex. R. App. P. 52. By a separate filing, relator
Elaine T. Marshall joined in the petition. In the petition,
relators ask this court to compel the Honorable James
Horowitz, presiding judge of Probate Court No. 4 of Harris
County, to vacate his May 2, 2019 order granting the motion
to compel production filed by real party in interest Preston
Marshall. We conditionally grant the petition.
Pierce Marshall, Sr. created the Harrier Trust, of which
Preston Marshall is the income and principal beneficiary, and
the Falcon Trust, of which Preston is the initial income
beneficiary and his children are the successor income and
principal beneficiaries. Elaine T. Marshall was named the
original trustee for both the Harrier Trust and Falcon Trust
(the "Trusts"). Elaine appointed relators
Alexander, Johnson, Thompson, Cutrer, and Aucoin as
Co-Trustees of the Trusts in December 2016 (the
"Co-Trustees"). On January 11, 2017, Elaine sought
a declaratory judgment in the Fourteenth District Court,
Calcasieu Parish, Louisiana ("Louisiana Court") to
approve the appointment of the Co-Trustees of the Harrier
Trust (the "Louisiana Action").
September 29, 2017, Preston filed suit against Elaine and the
Co-Trustees in Probate Court No. 4 of Harris County, alleging
that they had breached their fiduciary duties (the
"Texas Action"). In short, Preston alleged that
Elaine violated her fiduciary duties as trustee by executing
documents appointing the Co-Trustees when those documents
violated the Trusts' terms. Further, Preston alleged that
the Co-Trustees violated fiduciary duties because they agreed
with Elaine to withhold distributions from Preston, which
increased the trustees' compensation.
subsequently took the deposition of Co-Trustee Adam Johnson
in the Louisiana Action. In his deposition, Johnson testified
that he understood that Elaine had sole discretion on some
issues for a certain period of time, though he could not
recall which issues or the time period. He thought one of the
issues may have been accumulation of income. He believed he
came to that understanding from a document he believed he and
others signed. Specifically, he stated the following:
Q. Was it your understanding subsequent to the acceptances
that all of you did in Exhibit 2, was it your understanding
that Mrs. Marshall could no longer act alone as a trustee?
A. No, I don't think that was my understanding.
Q. So you thought she could go ahead and act as a trustee on
her own without any concurrence from the other co-trustees?
* * *
A. My understanding is that she could - she had sole
discretion on - on some issues.
* * *
Q. What issues?
A. I recall there being some understanding that there was
going to be a period of time where we were going to be
essentially, you know, learning so that we weren't . . .
. I don't know whether or not she could -
"discretion" and "act" are two different
things, I guess. Could she act alone? I believe - I recall
thinking that we were - trustees as a group, that decisions
would be made as a group.
Q. Well, you said there were certain areas that you
understood in which she would have sole discretion. What were
A. I can't specifically recall the areas. I think one of
them might have been accumulation.
Q. Whether to accumulate or distribute income?
Q. And how did you come by that understanding that for a
period of time she would have sole discretion on that issue?
A. It was in a - I believe it was in a document.
Q. And so when you met for the first quarterly meeting of the
trustees after you had been appointed, it was your belief
that Mrs. Marshall had sole discretion over whether to make
distributions to Preston Marshall?
A. Yes, for a period of time.
Q. What was the period of ...