Judgment Rendered October

NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CA 0450 IN THE MATIER OF THE MASHBURN MARITAL TRUSTS CONSOLIDATED WITH NUMBER 2008 CA 0451 IN THE MATTER OF THE MASHBURN FAMIL Y TRUST Judgment Rendered October 31 2008 Appealed from the Twenty First Judicial District Court In and for the Parish of Tangipahoa Louisiana Trial Court Number 2001 003363 c w Probate Number 71 685 Honorable Ernest G Drake Jr Judge Walter Antin Jr Hammond LA L Kevin Coleman Mandeville LA Attorney for Appellant Timothy R Mashburn Attorney for Appellees Joseph Patton Pat Mashburn and Richard Anthony Mashburn in their Capacity as Co Trustees ofthe Mashburn FaInily Trust BEFORE PARRO McDONALD AND WELCH JJ

WELCH J Timothy R Tim Mashburn one of the nine Income and principal beneficiaries of the Mashburn Family Trust family trust appeals a judgment denying his motion to compel the distribution of income from the family trust Joseph Patton Pat Mashburn and Richard A Mashburn in their capacity as the co trustees of the family trust I have answered the appeal seeking to reverse the denial of their motion for sanctions against counsel for Tim Mashburn and to have him cast for damages costs and attorney fees incurred by the co trustees in these proceedings Finding no error in the judgment ofthe trial court we affirm I FACTUAL AND PROCEDURAL HISTORY John S Jack and Sarah Sadie Pugh Mashburn had nine children Helen Mashburn Penton John S Mashburn Jr Pat Mashburn Don Mashburn Michael F Mashburn Rita A Mashburn Tim Mashburn William T Mashburn and Richard Mashburn By an authentic act executed on December 18 1975 Jack and Sadie Mashburn created the family trust with their nine children designated as both the income and principal beneficiaries of the trust 2 On August 19 1997 Pat Mashburn and Richard Mashburn were appointed by the court as the co trustees of the family trust3 Paragraph 13 of the family trust instrument provides that The property delivered to the Trustee under this Trust shall be divided into equal shares one Pat Mashburn and Richard Mashburn are also income and principal beneficiaries of the farnil y trust 2 By an authentic act executed on June 8 1984 Jack and Sadie Mashburn also created the Jack and Sadie Pugh Mashburn Marital Trust marital trust There are no issues pertaining to the marital trust in this appeal 3 For additional background information see In Re Mashburn Marital Trust 2004 1678 La App 1st Cir 12 29 05 924 So 2d 242 writ denied 2006 1034 La 9 22 06 937 So 2d 384 Mashburn Marital Trust I In Re Mashburn Marital Trusts 2006 0741 2006 0742 2005 0887 La App 1st Cir 12 28 06 951 So 2d 1136 writs denied 2007 0403 2007 0446 La 4120 07 954 So 2d 164 167 Mashburn Marital Trust II and In Re Masbburn Marital Trust 2006 1753 2006 1754 La App 1st Cir 12 28 06 947 So 2d 852 unpublished opinion writ denied 2007 0403 La 4 20 07 954 So 2d 164 Mashburn Marital Trust III 2

share for the benefit of each of the Settlors children as beneficiaries of both principal and income Each share shall be held as and shall constitute a separate Trust Additionally Paragraph 14 of the family trust instrument provides that All of the income of each Trust shall be paid to the beneficiary of that Trust annually or such more frequent intervals as the Trustee may see fit On April 16 2007 Tim Mashburn filed a motion to compel the distribution of trust income alleging that the co trustees of the family trust had failed to distribute the income of his fainily trust as required by the family trust instrument therefore he sought to compel the co trustees to distribute that income The co trustees responded by filing a motion for sanctions against counsel for Tim Mashburn alleging that Tim Mashburn had received full payment of his share of the trust income for the year 2006 just five days before he filed the motion and therefore they contended that Tim Mashburn s counsel violated La C C P art 863 B and should be cast for all damages costs and attorney fees pursuant to La C C P art 863 D After a hearing on May 29 2007 the trial court denied both the motion to compel distribution of trust income and the motion for sanctions Upon request of counsel for Tim Mashburn the trial court issued written reasons for judgment finding that Tim Mashburn failed to prove that the co trustees of the family trust did not comply with the provisions of the trust instrument with respect to the distribution of income therefore the trial court denied the relief that he sought The trial court s written reasons were silent with respect to its reasons for denying the motion for sanctions A written judgment in conformity with the trial court s reasons was signed on June 4 2007 From this judgment Tim Mashburn has appealed and the co trustees have answered the appeal II MOTION TO COMPEL DISTRIBUTION OF TRUST INCOME On appeal Tim Mashburn contends that the trial court erred in determining 3

that he failed to prove that the co trustees had not complied with the terms of the family trust because the evidence established that the co trustees retained and failed to distribute income to him from his share of the family trust in the amount of 61 806 87 According to the testimony of Pat Mashburn a co trustee of the family trust an annual family meeting to discuss the affairs of the family trust and the marital trust was held on April 11 2007 At the meeting the financial statement for the family trust for the calendar year 2006 which was prepared by Michael F Smith C P A was distributed to the beneficiaries of the fainily trust who attended the meeting including Tim Mashburn According to the 2006 financial statement the net income for the family trust was 92 412 37 Each beneficiary of the family trust including Tim Mashburn was given a check in the ainount of 10 135 00 which according to Pat Mashburn represented each beneficiary s share of the net earnings of the assets of the family trust4 According to Pat Mashburn Tim Mashburn s check in the amount of 10 135 00 cleared the bank on April 13 2007 After reviewing the 2006 financial statement for the fainily trust Dennis James C P A testified that in the equity section of the statement there was an entry or account entitled retained earnings that had a balance of 556 26190 In his opinion a retained earnings account is an account maintained on a company s balance sheet in the equity section that reflects the accumulation of 4 We note that 92 412 37 divided by nine equals 10 268 04 The record does not reveal the reason for this 133 04 discrepancy between the 10 135 00 distribution to Tim Mashburn purportedly representing his one ninth interest in the net income of the family trust and the 10 268 04 that according to the 2006 financial statement appears to be his one ninth interest in the net income ofthe family trust However on appeal Tim Mashburn does not assign error to the trial court s failure to order the co trustees to distribute this 133 04 but rather he maintains that the trial court erred in not ordering the co trustees to distribute to him the sum of 61 806 87 representing his one ninth interest in the retained eamings of the family trust as reflected on the 2006 financial statement of the family trust Accordingly our discussion in this appeal is limited to determining whether the trial court erred in determining that Tim Mashburn did not prove that the co trustees had retained and failed to distribute income in the amount of 61 806 87 from Tim Mashburn s share ofthe family trust 4

earnings in prior periods that have not been distributed to the company s owners and have been retained by the company Mr James further explained that the retained earnings account initially starts at zero that it is increased by accounting profits and that it is decreased by accounting losses and distributions to its owners Therefore retained earnings are by definition accumulations of the earnings of a company from its inception to a particular point in time Mr James further explained that retained earnings are not necessarily in the form of cash but can also be reinvested in the expansion ofthe business s fixed assets or in the reduction of the business s debt According to Mr JaInes Tim Mashburn s one ninth interest in the retained earnings of the family trust as of the end of 2006 would be 61 806 87 However on cross examination Mr James testified that he did not know whether the retained earnings reflected on the 2006 financial statement of the fainily trust were retained in the form of cash reinvested in the family trust used to make repairs or capital improvements or used to reduce the debt of the trust He stated that in order to make that determination he would need to talk to Mr Smith the accountant who prepared the financial statement After considering this evidence the trial court rendered judgment denying Tim Mashburn s motion to compel distribution of trust income In reasons for judgment the trial court stated The main question before the court concerned the definition of retained earnings which Mr James explained In response to a question by the c ourt Mr James indicated that the retained can earnings consist of various non cash items In response to the question on cross examination Mr James admitted that the C P A who prepared the statement would be in a better position to explain exactly what constituted the retained earnings on the prior identified exhibits i e the 2006 financial statement for the family trust The c ourt considering the testimony of the witnesses and the law the c ourt is of the opinion that the plaintiff failed to prove that the co trustees of the family trust have not complied with the instructions as contained in the trust instrument i e failed to 5

distribute the income annually and in accordance with the said instrument For these reasons the relief sought was denied The appellate court s review of factual findings is governed by the manifest error clearly wrong standard The two part test for the appellate review of a factual finding is l whether there is a reasonable factual basis in the record for the finding of the trial court and 2 whether the record further establishes that the finding is not manifestly erroneous Mart v Hill 505 So 2d 1120 1127 La 1987 The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong but whether the fact finder s conclusion was a reasonable one Stobart v State DOTD 617 So 2d 880 882 La 1993 If the factual findings are reasonable in light of the record reviewed in its entirety a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Stobart 617 So 2d at 882 883 Where there are two permissible views of the evidence the fact finder s choice between them cannot be manifestly erroneous or clearly wrong Stobart 617 So 2d at 883 Implicit in the trial court s ruling was a factual determination that the co trustees of the fainily trust had distributed the income from the family trust on an annual basis in accordance with the terms of the trust instrument The trial court s conclusion in this regard was supported by the testimony of co trustee Pat Mashburn and was not clearly wrong Although the opinion testimony of Mr James suggests that at some point since the inception of the family trust in December 1975 some earnings or income had been retained Mr James could provide no specific information as to whether those earnings were retained in the form of cash or whether those earnings were reinvested into the trust in the form of fixed assets or were used to reduce debt owed by the trust Absent such necessary information we cannot say that the trial court manifestly erred in 6

determining that the co trustees of the family trust had distributed the income of the trust on an annual basis in accordance with the terms of the trust instrument Accordingly we find no error in the trial court s denial of Tim Mashburn s motion to compel distribution of trust income and the judgment of the trial court in this regard is hereby affirmed III MOTION FOR SANCTIONS In the co trustees answer to the appeal they contend that the trial court erred in denying their motion for sanctions against counsel for Tim Mashburn because the motion to compel the distribution of trust income filed by him on behalf of Tim Mashburn was in flagrant disregard for the clear facts and was an attempt to deceive the trial court Therefore the co trustees submit that pursuant to La C cp art 863 the trial court should have imposed sanctions Counsel for Tim Mashburn contends that the co trustees abandoned their motion for sanctions before the trial court because they presented no argument or evidence on the motion at the hearing Nevertheless counsel for Tim Mashburn contends that he did not violate La C C P art 863 when he filed the motion to compel distribution of trust income because the motion was well grounded in fact warranted by existing law and not interposed for any improper purpose Specifically he contends that the motion was prepared and filed after he consulted and discussed the 2006 financial statement for the family trust with Mr James and that the motion was based on Mr James expert opinion on the matter To impose sanctions a trial court must find that one of the affirmative duties imposed by La C cp art 863 has been violated Stroscher v Stroscher 2001 2769 p 8 La App 1st Cir 2 14 03 845 So 2d 518 526 Louisiana Code of Civil Procedure article 863 provides in pertinent part as follows B Pleadings need not be verified or accompanied by affidavit or certificate except as otherwise provided by law but the signature of an attorney or party shall constitute a certification by him that he 7

has read the pleading that to the best of his knowledge information and belief formed after reasonable inquiry it is well grounded in fact that it is warranted by existing law or a good faith argument for the extension modification or reversal of existing law and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation D If upon motion of any party or upon its own motion the court determines that a certification has been made in violation of the provisions of this Article the court shall impose upon the person who made the certification or the represented party or both an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading including a reasonable attorney s fee Louisiana Code of Civil Procedure article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law subjective good faith will not satisfy this duty of reasonable inquiry Stroscher 2001 2769 at p 8 845 So 2d at 526 The article does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified failure to prevail does not trigger an award of sanctions Id Louisiana Code of Civil Procedure article 863 is intended to be used only in exceptional circumstances where there is even the slightest justification for the assertion of a legal right sanctions are not warranted Id A trial court s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review Id In this case the trial court did not give any reasons for denying the co trustees motion for sanctions Apparently the trial court must have concluded that counsel for Tim Mashburn did not violate La C C P art 863 because he made an objective reasonable inquiry into the facts because the motion he filed was well grounded in fact and warranted by existing law or was a good faith argument for the extension modification or reversal of existing law and because the motion was not interposed for any improper purpose 8

After a thorough review of the record we cannot say that the trial court was clearly wrong in concluding that imposition of sanctions pursuant to La C C P art 863 was not warranted in this matter The motion brought by counsel for Tim Mashburn alleged that the co trustees had not paid the income from the trust on an annual basis as required by the terms ofthe family trust instrument At the hearing on the motion these allegations were supported by the expert opinion testimony of Mr James While Tim Mashburn s counsel was not ultimately successful in the trial court or in this court in proving that the co trustees failed to comply with the terms of the trust instrument in that regard we cannot say that his motion was without the slightest justification Furthermore while the acrimonious relationship between Tim Mashburn and the co trustees of the fainily trust is evident as is the frustration of the co trustees over what they perceive to be a continuous onslaught of litigation brought by Tim Mashburn we cannot say that counsel for Tim Mashburn brought the motion to compel distribution of trust income for any improper purpose such as to harass the co trustees or to cause any needless increase in their cost of litigation Accordingly the judgment of the trial court denying the co trustees motion for sanctions is affirmed IV CONCLUSION For all ofthe above and foregoing reasons the June 4 2007 judgment of the trial court denying Tim Mashburn s motion to compel distribution of trust income and denying the motion for sanctions filed by Pat Mashburn and Richard Mashburn in their capacity as the co trustees of the fainily trust is hereby affirmed All costs of this appeal are assessed to the appellant Timothy R Mashburn AFFIRMED 9