author: GAIDRY, J.

text:
    Lorri BURGESS v. The CITY OF BATON ROUGE, Parish of East Baton Rouge, and Doug Moreau in His Capacity as District Attorney for the 19th Judicial District.
    No. 2005 CA 2565.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Christina B. Peck, Baton Rouge, Counsel for Plaintiff/Appellant Lorri Burgess.
    E. Wade Shows, Lea Anne Batson, Gwendolyn K. Brown, Baton Rouge, Counsel for Defendant/Appellee City of Baton Rouge / Parish of East Baton Rouge.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

| ¡¡This is an appeal of a summary judgment determining the merits of an action for declaratory judgment seeking the interpretation of a local government law. For the following reasons, we reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The following relevant facts are undisputed. The plaintiff-appellant, Lorri Burgess, is a member of the Metropolitan Council of the consolidated government of the City of Baton Rouge, Parish of East Baton Rouge (the City-Parish), representing District 10. The Metropolitan Council is the governing body of the City-Parish. The City-Parish’s consolidated form of government was authorized by constitutional amendment in 1946, and its Plan of Government was subsequently adopted by referendum of its voters, effective January 1,1949.

The City-Parish’s Plan of Government contemplates that the Metropolitan Council shall be presided over by a President Pro Tempore, one of its members, who also acts as acting Mayor-President in the event of that executive officer’s absence or disability or the temporary vacancy of that office. The President Pro Tempore has historically received compensation, fixed by ordinance after each election, for serving as acting Mayor-President. From 1981 to 1997, the President Pro Tempore received per diem payments. Since 1997, the President Pro Tempore has been compensated by a monthly salary of $1,500.00 while acting as Mayor-President.

|sOn March 9, 1993, the Louisiana Attorney General issued an opinion at the request of the East Baton Rouge Parish Attorney. La. Atty. Gen. Op. No. 93-141 (1993). The issues addressed included whether Section 2.05 of the Plan of Government prohibited the receipt of additional compensation by the President Pro Tempore while acting as Mayor-President and whether Section 2.10 prohibited a Council member from voting for himself for the position of President Pro Tempore. The opinion answered both questions in the negative.

Ms. Burgess was elected to a four-year term as President Pro Tempore in January 2001, and voted as a Council member in that election. She intended to seek that position again in January 2005 after being reelected as Council member. The Parish Attorney for East Baton Rouge Parish then issued an advisory opinion in December 2004 stating that unless any existing salary or per diem for the President Pro Tempore was eliminated (or “set as $0”) prior to the election, Section 2.10 as written prohibited candidates for President Pro Tempore from voting for themselves in the election.

Ms. Burgess instituted this action on December 17, 2004, naming the City-Parish and the district attorney as defendants, setting forth the essential facts described above, and seeking a declaratory judgment “as to whether a[C]ouncil member who casts a vote for himself in the election for President Pro Tempore violates the provisions of Section 2.10 of the Plan of Government and [is] subject to prosecution and forfeiture of his office.” The defendants separately answered the petition, admitting all of the factual allegations, but praying for dismissal of the petition on its merits.

On January 3, 2005, after being nominated for the position, Ms. Burgess voted for herself, but neither of the two candidates received the | ¿majority necessary for election. An election was again attempted on January 12, 2005, but again no candidate was elected.

On January 18, 2005, the Louisiana Board of Ethics issued an opinion, at the request of another Council member, on the propriety of a Council member voting for himself in the election for President Pro Tempore. It concluded that such a vote was improper, but did not provide any reasons or authority for that conclusion in the opinion letter.

On January 21, 2005, an unincorporated association of East Baton Rouge Parish citizens (procedurally designated as “A6”) intervened in the proceedings, seeking a declaratory judgment that Ms. Burgess had violated Section 2.10 and thereby forfeited her office in the Metropolitan Council under the terms of that provision. Ms. Burgess excepted to the petition on various grounds, including the intervenor’s lack of procedural capacity.

The City-Parish filed a motion for summary judgment on the merits, as did Ms. Burgess. The cross-motions were heard on May 9, 2005, as were Ms. Burgess’s exceptions to A6’s petition of intervention. The trial court sustained Ms. Burgess’s declinatory exception objecting to A6’s procedural capacity, and dismissed its intervention. At the conclusion of the summary judgment hearing, the trial court ruled in favor of the City-Parish, granting summary judgment in its favor, declaring that Section 2.10 prohibits a Metropolitan Council member from voting for himself in the election of President Pro Tempore.

| fjThe trial court’s judgment incorporating its rulings was signed on August 17, 2005. Ms. Burgess has suspensively appealed.

STANDARD OF REVIEW

The judgment before us is a summary judgment rendered in an action for declaratory judgment. Louisiana Code of Civil Procedure article 1871 provides that a declaratory judgment “shall have the force and effect of a final judgment or decree.” Louisiana Code of Civil Procedure article 1877 further provides that declaratory judgments “may be reviewed as other orders, judgments, and decrees.” Thus, this summary declaratory judgment is subject to the usual de novo review as to whether summary judgment was appropriate. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716, p. 5 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828, writs denied, 04-2314, 04-2323, 04-2326, 04-2327 (La.11/19/04), 888 So.2d 207, 211, 212.

As stated above, the facts in this matter are undisputed. The resolution of this matter is solely dependent upon our determination of the legal issue presented. Our review of that issue of law is likewise de novo.

DISCUSSION

The provision of the City-Parish’s Plan of Government at issue is Section 2.10, entitled “Members of Councils ⅛⅛ ] Interested in Proposed Ordinance or Resolution [-] Duty to [Rjefrain From Voting,” and reads as follows:

Any member of the Metropolitan Council who shall have any personal or private pecuniary interest in the adoption or passage of any ordinance, resolution, motion or measure, by the Council, shall declare such fact to said body, and shall refrain from voting on the same at any time, whether on final passage Ror otherwise. Any person who shall violate the above provision shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding one hundred dollars, or imprisonment for not more than sixty days, or both fine and imprisonment, at the discretion of the court, and shall forfeit his office.

The obvious purpose of the foregoing provision is to require a Metropolitan Council member to recuse himself from voting on any matter involving a conflict of interest by reason of that member’s “personal or private” financial benefit from its adoption or passage. The ultimate legal issue presented is whether the additional salary or compensation for a Council member serving as President Pro Tempore of the Metropolitan Council constitutes a “personal or private pecuniary interest” within the meaning of Section 2.10, requiring any Council member seeking that position to refrain from voting in the election.

The position of President Pro Tempore is a special position or office, distinct from the ordinary office of Metropolitan Council member. Immediately after taking office, the first duty of the members of a newly-elected Metropolitan Council is “to elect one of their own number to be a President Pro Tempore for a term of four years.” Plan of Government, City of Baton Rouge, Parish of East Baton Rouge, § 2.07. The duties of the President Pro Tempore are set out in Section 4.05:

The President Pro-Tempore [sic ] shall preside over the meetings of the Metropolitan Council with the right to speak and to vote. If the Mayor-President is absent from the Parish and City or otherwise temporarily disabled from performing his duties the President Pro-Tempore [sic] shall act as Mayor-President and in the case of a vacancy in the office of Mayor-President shall serve as such until the vacancy is filled as hereinafter provided.

|7Section 2.03 of the Plan of Government provides, in part, that “[n]o member of the Metropolitan Council ... shall, while he holds such office, hold any other office of profit under the United States, the State of Louisiana or any political subdivision thereof,” with limited exceptions. Section 2.05 further provides that “[t]he salary of each councilman shall be $800.00 per month[,]” and that “[ejxcept for travel allowances authorized by law, the members of the Metropolitan Council shall receive no other compensation.”

At first glance, these provisions might seem to preclude the payment of any compensation or remuneration for the position of President Pro Tempore, and Section 2.03 might even be read to preclude any Council member from serving in that position if it constitutes an “office of profit.” In fact, the trial court made the former observation in its oral reasons for judgment, stating that because Section 2.10 was enacted before provision was made for additional compensation for the President Pro Tempore, it would be necessary to “amend the Plan of Government” (presumably Section 2.03) to allow a candidate for President Pro Tempore to vote in that election.

However, we do not read Section 2.05 as precluding the receipt of additional compensation by the President Pro Tem-pore while serving in that capacity or as acting Mayor-President; rather, we conclude it is limited to that compensation received while acting in the capacity of Council member. If the contrary interpretation is accepted, however, then we need conduct no further analysis of the issue before us. If no other compensation may legally |sbe received by the President Pro Tempore, then Section 2.10 would not preclude any vote by Ms. Burgess for herself in the election for that position, as no pecuniary interest at all, personal or private or even public, would be involved. Here, however, the legality of any ordinance establishing the President Pro Tem-pore’s salary is not at issue.

The words of a law must be given their generally prevailing meaning. La. C.C. art. 11. The term “private” has been defined as meaning “not holding public office or employment” and “not related to one’s official position,” and in those respects synonymous with “personal.” Merriam-Webster’s Collegiate Dictionary 927 (10th ed.1998). Thus, the better interpretation of Section 2.10’s adjective phrase “personal or private” is that the adjectives are essentially synonymous, in the sense that they both are meant to limit the pecuniary interest at issue to that relating to or derived in a member’s capacity as a private person, rather than a public officeholder. This result would also best explain the provision’s requirement for disclosure of such interest by the member, as any pecuniary interest in the capacity as Metropolitan Council member, whether by way of public salary or other benefits, should already be immediately evident to the other members by the nature of the particular action or measure being considered.

|flThe foregoing considerations, however, do not conclude our analysis. Section 2.10 serves a purpose similar to those of La. R.S. 42:1120, part of the Louisiana Code of Governmental Ethics, La. R.S. 42:1101, et seq., and La. R.S. 14:140, the criminal statute prohibiting public contract fraud. Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13.

Louisiana Revised Statutes 14:140 was enacted in 1942, but covered considerations addressed in earlier statutes, including Acts 1906, No. 200, §§ 1 and 2, regulating police jurors and municipal council members voting on ordinances in which they had an interest. Section 2.10 was adopted by referendum in 1949, and has not been amended since that time. In 1964, the original version of the Louisiana Code of Governmental Ethics was enacted. When our present state constitution was adopted in 1974, it authorized existing home rule charters or plans of government to remain in effect “[ejxcept as inconsistent with this constitution.” La. Const. Art. 6, § 4. It further provided that the compensation or method of fixing the compensation of an elected official of a local governmental subdivision with a home rule charter or plan of government is governed by that charter. La. Const, art. 6, § 12. It also included a mandate to the legislature to “enact a code of ethics for all officials and employees of the state and its political subdivisions.” La. Const, art. 10, § 21. The legislature fulfilled that mandate by amending and reenacting the Louisiana Code of Governmental Ethics in its present form in 1979. See La. R.S. 42:1101(A).

The primary objective of the Code of Governmental Ethics is to prevent public officers and employees from becoming involved in conflicts of interest. In re McJunkins, 99-0326, p. 6 (La.App. 1st Cir.3/31/00), 794 So.2d 845, 848. Such a conflict of interest is present “when a conflict exists 1 mbetween the private interests of an elected official ... and his duties as such.” La. R.S. 42:1101(B). (Emphasis supplied.)

Like Section 2.10, La. R.S.42:1120 addresses the issue of when an elected official should recuse himself from voting on a matter in which he arguably has a conflict of interest. This statute requires self-re-cusation only when the official’s vote on the matter “would be a violation of R.S. 42:1112.” La. R.S. 42:1120(A).

Louisiana Revised Statutes 42:1111(A)(1), addressing payment of a public servant’s services from nonpublic sources, generally provides that “[n]o public servant shall receive anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position .... ” (Emphasis supplied.) In line with that general principle, a “thing of economic value” is generally defined as “money or any other thing having economic value,” La. R.S. 42:1102(22)(a), but specifically excludes “salary and other emoluments of the office held by [an] elected official.” La. R.S. 42:1102(22)(c).

Louisiana Revised Statutes 42:1112(A) further provides that “[n]o public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.” (Emphasis supplied.) A “substantial economic interest” is defined in La. R.S. 42:1102(21):

|¶1(21) “Substantial economic interest” means an economic interest which is of greater benefit to the public servant or other person than to a general class or group of persons, except:
(a)The interest that the public servant has in his position, office, rank, salary, per diem, or other matter arising solely from his public employment or office.
(b) The interest that an elected official who is elected to a house, body, or authority has in a position or office of such house, body, or authority which is required to be filled by a member of such house, body, or authority by law, legislative rule, or home rule charter.
(c) The interest that a person has as a member of the general public. (Emphasis supplied.)

The position or office of President Pro Tempore is required to be filled by a member of the Metropolitan Council, and its additional salary or compensation would therefore amount to an “interest ... in ... [a] matter arising solely from [the member’s] public employment or office.” Thus, Ms. Burgess’s interest in that position or office is plainly not a “substantial economic interest” within the meaning of either La. R.S. 42:1102(21)(a) or (b), and certainly cannot be considered “personal,” in the sense of arising outside of her public office. Thus, any participation by Ms. Burgess in a vote to elect the President Pro Tempore while a candidate for that position would not constitute a violation of La. R.S. 42:1112, nor, by extension, a violation of La. R.S. 42:1120.

Louisiana Revised Statutes 14:140 defines the crime of “public contract fraud,” and provides in part:

A. Public contract fraud is committed:
(1) When any public officer ... shall use his power or position as such officer ... to secure any expenditure of public funds to himself ...; or
(2) When any member of any public ... body ... charged with the custody, control, or expenditure of any public l^funds votes for or uses his influence to secure any expenditure of such funds to himself ...
The fact that an expenditure has been made to any party named in Paragraphs (1) and (2) of this Section ... shall be presumptive evidence that such person has used his power, position, or influence to secure such expenditure.

The present case does not involve the situation of an elected public servant participating in a vote to engage his own services as a public employee or private contractor of the governing body of which he is a member. It is doubtful whether the vote of an elected municipal official in the election of the municipal governing body’s presiding officer amounts to the type of “public contract” or transaction contemplated by La. R.S. 14:140. Prior opinions of the Louisiana Attorney General have suggested that a member of a local governing body or board casting a vote for himself to fill another appointive office or public employment position might implicate La. R.S. 14:140. See, e.g., La. Atty. Gen. Op. Nos. 76-1895 (1977), 79-1089 (1979). However, none have involved the context of the present dispute, other than Opinion No. 93-141. At any rate, Attorney General opinions are merely advisory and not binding. City of New Orleans v. Bd. of Dir. of La. State Museum, 98-1170, p. 6 n. 11 (La.3/2/99), 739 So.2d 748, 753 n. 11. To the extent that these opinions constitute persuasive authority for our purposes, we consider them limited to their specific contexts.

If the participation of a candidate for President Pro Tempore in a vote in the election for that position is not a violation of La. R.S. 42:1112, then |ialogic dictates that it would also not constitute a violation of La. R.S. 14:140, a criminal and penal statute subject to strict interpretation, and that any statutory presumption arising from the expenditure would thereby be rebutted. Otherwise, an anomalous situation would exist where a public official’s conduct would be ethical, yet also criminal, instead of the more common situation where unethical conduct may not in fact amount to an actual crime. While La. R.S. 42:1164 does provide that nothing in the Code of Governmental Ethics is intended or is to be construed as amending or repealing any criminal statute, La. R.S. 14:3 requires that all criminal statutes “shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” (Emphasis supplied.) Thus, in the context of the circumstances presented, it would be reasonable to conclude that no violation of La. R.S. 14:140 would be involved in the vote at issue.

Interpreting Section 2.10 as part of a unified, comprehensive Plan of Government, and considering its purposes in light of Louisiana law in pari materia, including our laws governing dual officeholding and governmental ethics, we determine that the salary of the President Pro Tempore is not a “personal or private pecuniary interest,” and that Section 2.10 does not 114require Ms. Burgess to refrain from voting in the election of the Metropolitan Council’s President Pro Tempore, whether on final passage or otherwise. The trial court’s summary judgment to the contrary is hereby reversed. All costs of this appeal, in the amount of $595.12, are assessed to the defendant-appellee, the City of Baton Rouge, Parish of East Baton Rouge.

REVERSED.

      . Ordinance No. 10804 fixed that salary for the four-year period from January 1, 1997 through December 31, 2000. The same salary was in place during the next four-year period, and was incorporated in the City-Parish’s pay plan adopted on December 11, 2002 by Ordinance No. 12533.

      . A6 had also instituted a separate declaratory judgment action against the other candidate for President Pro Tempore on the same legal issue asserted in its petition of intervention. That action was consolidated for trial with the present action, and was dismissed by separate judgment signed on June 7, 2005.

      . Although the judgment is silent as to the court’s disposition of Ms. Burgess's cross-motion, the trial court in its oral reasons ruled that it would deny her motion. A6 instituted a devolutive appeal of the trial court's judgment dismissing its petition of intervention. Its appeal was consolidated with the present appeal. However, its appeal was dismissed for its failure to timely submit its appellate briefs in accordance with Rules 2-8.6 and 2-12.7 of the Uniform Rules of the Courts of Appeal.

      . A Metropolitan Council member serving as the Council's President Pro Tempore thus falls within two of the specific exemptions to the general prohibition against dual office-holding. See La. R.S. 42:66(A)(7), (D).

      . The Attorney General reached the same conclusion in Opinion No. 93-141: “We interpret Section 2.05 as contemplating that a [C]ouncil member is prohibited from receiving additional monies for serving in the position of [C]ouncil member. We do not interpret this section to prohibit the President Pro-Tempore from receiving compensation for serving in the separate position of Acting Mayor.” La. Atty. Gen. Op. No. 93-141 (1993).

      . Ordinance No. 12533, enacted on December 11, 2002, established a job code classification and salary pay grade of $1,500.00 per month for the President Pro Tempore. It was repealed on February 23, 2005, prior to the hearing on the motions for summary judgment. Thus, it would no longer have presented a justiciable controversy even if it had been placed at issue. However, the record suggests that the salary of $1,500.00 per month was still budgeted at the time of the hearing. We proceed on the assumption that a salary may be paid in the future, based upon the history evident from the record.

      . Likewise, in a legal sense, the term ''private” is defined as "[r]elating or belonging to an individual, as opposed to the public or the government.” Black’s Law Dictionary 1233 (8th ed.2004).

      . The phrase’s use of the conjunctive "or” supports this interpretation, as well as the fact that the terms “personal” and “private” are considered synonymous in ordinary usage. Merriam-Webster's Collegiate Dictionary 867, 927 (10th ed.1998).

      . An emolument is defined as "[a]ny advantage, profit, or gain received as a result of one's employment or one's holding of office.” Black's Law Dictionary 563 (8th ed.2004). Any additional salary received by the Metropolitan Council member serving as President Pro Tempore is clearly an additional emolument of office, and thus exempt from the prohibitions of La. R.S. 42:1111 against payments from nonpublic sources and payments for nonpublic services.

      . As amended by Acts 2006, No. 408, § 1, effective June 22, 2006.

      . In his Opinion No. 93-141 in 1993, the Attorney General observed that at the time of the election of the President Pro Tempore, no authorization for compensation existed, and such compensation was provided by ordinance after the election. He further observed that "[a] decision by the [Cjouncil to forego compensation would effectively remove the objection predicated on Section 2.10.” La. Atty. Gen. Op. No. 93-141 (1993). Based upon those observations, he concluded that a Council member could vote for himself in the election for President Pro Tempore without violation of Section 2.10.

      . When Louisiana’s statutes were comprehensively revised and reorganized as the Louisiana Revised Statutes, the official Reporter noted the following:
      While it may be desirable to have civil statutes regulating the extent to which public officials may be interested in public contracts, it appears to be going too far to say that such interest is per se criminal. A civil statute might well provide that such contracts would be illegal and that the making of such a contract would be grounds for removing the interested official from office. The Reporters are not, however, authorized to draft such civil statutes.
      La. R.S. 14:140, Reporter's Comment — 1950, "General Comment.”

      . Our resolution of the issue reconciles any potential conflict between the provisions of Section 2.10 and La. R.S. 42:1120. It could otherwise be reasonably argued that Section 2.10, to the extent that it might contravene the latter statute, was preempted in effect upon the adoption of our present constitution and the enactment of La. R.S. 42:1120. See La. Const. art. 6, § 9(B) and Boh Bros. Constr. Co., Inc. v. City of New Orleans, 499 So.2d 385 (La.App. 4th Cir.1986). However, we need not make such determination given the basis for our decision described herein.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    In the Matter of the MASHBURN MARITAL TRUSTS v. In the Matter of the Mashburn Family Trust and In the Matter of the Mashburn Family Trust.
    Nos. 2006 CA 0741, 2006 CA 0742, 2005 CW 0887.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied Jan. 31, 2007.

      See also 924 So.2d 242.

      L. Kevin Coleman, Mandeville, for Appellants/Relators Joseph P. Mashburn and Don Mashburn, Co-Trustees and Managing Trustees of the Jack and Sadie Pugh Mashburn Marital Trust, and Joseph P. Mashburn and Richard A. Mashburn, in Their Capacity as the Co-Trustees of the Mashburn Family Trust.
    Walter Antin, Jr., Hammond, for Appel-lee/Respondent Timothy R. Mashburn.
    Pierre V. Miller, Pierre V. Miller, II, New Orleans, for Appellee Helen Mash-burn Penton.
    Before: GUIDRY, GAIDRY, and WELCH, JJ.
   WELCH, J.

12This is an appeal by Joseph Patton (“Pat”) Mashburn and Donald J. (“Don”) Mashburn, in their capacities as the managing co-trustees of the Jack and Sadie Pugh Mashburn Marital Trust (“marital trust”) and by Pat Mashburn and Richard A. Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust (“family trust”) from two trial court judgments. The first judgment ordered the managing co-trustees of the marital trust to pay Timothy R. (“Tim”) Mashburn, one of the nine beneficiaries of the trust, the sum of $2,000 per month from the income of the trust, and if necessary, from its principal. The second judgment declared that the family trust and the marital trust each created nine separate trusts (for a total of eighteen trusts) to which different trustees could be appointed; removed co-trustees, Pat Mashburn and Don Mash-burn, from two of the trusts established by the marital trust; removed co-trustees, Pat Mashburn and Richard Mashburn from two of the trusts established by the family trust; and appointed the beneficiary of each of those individual trusts as the successor trustee for each trust.

Additionally, a supervisory writ application by the co-trustees of the family trust seeking review of the trial court’s judgment denying their motion for summary judgment (which sought the dismissal of Tim Mashburn’s petition to terminate his family trust), was referred to this panel.

For reasons that follow, we reverse the first judgment on appeal; we affirm the second judgment insofar as it declares that the marital trust and the family trust each created nine separate trusts (for a total of eighteen trusts), and reverse that judgment in all other respects; and we grant the supervisory writ application, reverse the trial court’s judgment denying the co-trustees’ motion for summary [¡Judgment, and we enter judgment granting the motion for summary judgment and dismissing Tim Mashburn’s petition.

I. FACTUAL AND PROCEDURAL HISTORY

John S. (“Jack”) and Sarah (“Sadie”) Pugh Mashburn had nine children; namely, Helen Mashburn Penton, John S. Mashburn, Jr., Pat Mashburn, Don Mash-burn, Michael F. Mashburn, Rita Ann Mashburn, Tim Mashburn, William T. Mashburn, and Richard Mashburn. Sadie Mashburn died on February 23, 1996, and Jack Mashburn died on July 8, 2000.

The Family Trust

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, and with First Guaranty Bank of Hammond, Louisiana designated as trustee. The trust instrument further provided that in the event of a vacancy in the office of trustee, the successor trustee would be Hibernia National Bank in New Orleans.

On May 8, 1984, pursuant to a Petition for Appointment of Successor Trustees filed by Jack and Sadie Mashburn, as the settlors of the family trust, Julius Prokop, Rita Ann Mashburn, and Don Mashburn were appointed by the court as successor co-trustees of the family trust, because First Guaranty Bank had discontinued offering trust services and resigned as trustee of the family trust, and Hibernia National Bank had declined its appointment as the successor trustee. In November 1990, Julius Prokop resigned as co-trustee, and thereafter, the court confirmed Rita Ann Mashburn and Don Mashburn as the two co-trustees of the family trust.

On August 19, 1997, pursuant to a petition filed by Jack Mashburn, as settlor, and by his nine children, Pat Mashburn and Richard Mashburn were appointed by the court as the successor co-trustees of the family trust, because Rita 14Mashburn and Don Mashburn had resigned as its trustees.

On October 16, 2003, Tim Mashburn filed a petition to terminate the family trust for his benefit alleging that he was destitute, handicapped, unable to work, and in need of medical attention; that his resources without distributions from his family trust were insufficient to provide for his necessary support, maintenance, medical expenses, and welfare; and that he could not qualify for public assistance because of his interest in the family trust. Tim Mashburn requested that his family trust be terminated and its assets distributed to him in accordance with La. R.S. 9:2026, or alternatively, that the court order the invasion and distribution of principal from his family trust for his benefit on account of his medical and financial condition and needs in accordance with La. R.S. 9:2067.

On February 23, 2004, the co-trustees of the family trust filed a peremptory exception raising the objections of no cause of action and no right of action, and alternatively, a motion for summary judgment seeking therein the dismissal of Tim Mash-burn’s petition to terminate the family trust. The co-trustees contended that | sgiven the undisputed material facts, Tim Mashburn cannot terminate (or modify) the family trust under La. R.S. 9:2026 nor can he invade its principal under La. R.S. 9:2067 merely because he is unable to pay his monthly expenses due to his alleged poverty or disability. By judgment signed on March 9, 2005, the trial court overruled the co-trustees’ exceptions and denied their motion for summary judgment. It is this judgment that the co-trustees seek review of in the application for supervisory writ that was referred to this panel.

On March 14, 2005, Tim Mashburn filed a motion alleging that the August 19, 1997 judgment appointing Pat Mashburn and Richard Mashburn as co-trustees of the family trust was a nullity because he was not a joint petitioner in that matter and did not authorize that petition to be filed on his behalf, he was neither served with nor given notice of the petition, and he did not learn of the existence of that petition and order until February 22, 2005. Accordingly, Tim Mashburn contended that Pat Mashburn and Richard Mashburn were improperly appointed as co-trustees of the family trust, that they should be excused as trustees of the family trust, and that the judgment ordering their appointment as trustees should be annulled under either La. C.C.P. art. 2002(A)(2) or art. 2004. Additionally, Tim Mashburn alleged that Pat Mashburn and Richard Mashburn had failed to render annual accounts of their administration of the trusts; had failed to make required distributions to the beneficiaries; had provided incomplete, misleading, and false information to the beneficiaries; and breached their fiduciary duties to the beneficiaries. Therefore, he requested that the court excuse Pat Mash-burn and Richard Mashburn as co-trustees of the family trust, declare the office of trustee of the family trust vacant, and appoint a successor trustee for the family trust.

On March 18, 2005, Helen Penton also filed a motion seeking to nullify the August 1997 order appointing Pat Mashburn and Richard Mashburn as co-trustees of the family trust, essentially setting forth the same grounds as Tim Mashburn — |thats she was not a joint petitioner in that matter and did not authorize that petition to be filed on her behalf, that she was neither served with nor given notice of the petition, and that she did not learn of the existence of that petition and order until “[s]ometime in 2005.” She further requested that she be appointed as the successor trustee of her family trust (and her marital trust) and that her interest in the assets of her family trust (and her marital trust) be segregated from the others.

The Marital Trust

By an authentic act executed on June 8, 1984, Jack and Sadie Mashburn created the marital trust. Jack and Sadie Mash-burn were the initial income beneficiaries, and upon their death, their nine children were to succeed to their interest as the secondary income beneficiaries. Jack and Sadie Mashburn’s nine children were also designated as the principal beneficiaries. Jack and Sadie Mashburn were designated as trustees, and upon their death, all of the principal beneficiaries were to serve as co-trustees, unless a principal beneficiary failed to take office within thirty days after notification of the right to serve and the requirements for taking office.

After the deaths of Jack and Sadie Mashburn, Helen Penton, John Mashburn, Pat Mashburn, Don Mashburn, Michael Mashburn, and Richard Mashburn all qualified for and were recognized by the court as co-trustees of the marital trust. Pursuant to a majority vote of the co-trustees, Pat Mashburn and Don Mash-burn were elected as the “managing co-trustees” of the marital trust. See In re Mashburn Marital Trust, 2004-1678 (La. App. 1st Cir.12/29/05), 924 So.2d 242, 243-44, writ denied, 2006-1034 (La.9/22/06), 927 So.2d 384 (“Mashburn Marital Trust (I)”).

On August 19, 2003, Tim Mashburn filed a motion for monthly support distributions, alleging that he was one of nine principal and income beneficiaries of the marital trust and that he was destitute, handicapped, unable to work, in need of |7medical attention, and that his resources were insufficient to provide for his necessary support, maintenance, medical expenses, and welfare. Pursuant to La. R.S. 9:2067, the trial court ordered the managing co-trustees of the marital trust to make distributions to Tim Mashburn from the marital trust (its income and principal) in the amount of $2,000 per month for his support. Although the trial court initially limited the monthly support distributions to a period of six months, on April 5, 2004, the trial court rendered judgment extending the support distributions for an additional six months, and by judgment signed on October 12, 2004, the trial court ordered the monthly support distributions continue until terminated by the court. Additionally, the October 12, 2004 judgment ordered the managing co-trustees of the marital trust to “take any and all actions necessary for them to timely fund and pay the ... payments ordered to be paid to [Tim] Mashburn, including without limitation the sale of immovable properties and other assets.” It is from this October 12, 2004 judgment that the managing co-trustees of the marital trust have appealed.

The May 12, 2005 Judgment

After a two-day trial on the merits of pending issues concerning both the family trust and the marital trust, the trial court signed a judgment on May 12, 2005, as follows:

(1) declaring that the marital trust instrument settled nine separate trusts, one for the sole benefit of each of the nine children of Jack and Sadie Mashburn; and declaring that the family trust instrument settled nine separate trusts, one for the sole benefit of each of the nine children of Jack and Sadie Mashburn;

ls(2) ordering the managing co-trustees of the marital trust prepare and render accountings for each trust established by the marital trust instrument from the date of the first monthly distribution to Tim Mashburn, which accountings were to reflect on a month-by-month basis the monthly distributions to Tim Mashburn as charges against the interest of the marital trust for his benefit and as payments to Tim Mashburn from the marital trust for his benefit, first out of income, and then, as necessary out of principal,

(3) ordering that Pat Mashburn and Don Mashburn (as managing co-trustees) and that John Mashburn, Jr., Michael Mashburn, Rita Ann Mashburn, William Mashburn, and Richard Mashburn (as other trustees of the marital trust) be removed as trustees for the marital trusts for the benefit of Helen Penton and Tim Mashburn;

(4) ordering that Pat Mashburn and Richard Mashburn be removed as trustees of the family trusts for the benefit of Helen Penton and Tim Mashburn;

(5) ordering that Helen Penton be appointed as the sole trustee of the marital trust for her benefit, without bond and the sole trustee of the family trust for her benefit, without bond;

(6) ordering that Tim Mashburn, and his attorney, Walter Antin, Jr. be appointed the provisional trustees of the marital trust for Tim Mashburn’s benefit and the provisional trustees of the family trust for Tim Mashburn’s benefit;

(7) ordering that Pat Mashburn, Don Mashburn, and Richard Mashburn segregate the assets of Helen Penton’s family trust and marital trust by delivering legal title and possession of one-ninth (1/9) of those assets to Helen Penton;

(8) ordering that Pat Mashburn, Don Mashburn, and Richard Mashburn segregate the assets of Tim Mashburn’s family trust and marital trust by delivering legal title and possession of one-ninth (1/9) of those assets to Tim Mashburn and Walter Antin, Jr.; and

la(9) ordering that Helen Penton, as trustee of the family trust for her benefit, and that Tim Mashburn and Walter Antin, Jr., as trustees of the family trust for the benefit of Tim Mashburn, be made managing members of Mashburn Real Estate, L.L.C.

It is from this May 12, 2005 judgment that the co-trustees of the family trust and the managing co-trustees of the marital trust have also appealed.

II. ASSIGNMENTS OF ERROR

On appeal, the co-trustees assert that:

(1) the trial court erred in ordering invasions of the principal of Tim Mashburn’s interest in the marital trust;

(2) the trial court erred in finding that there were two sets of nine separate trusts (one set in the family trust and the other set in the marital trust, for a total of eighteen trusts) to which separate trustees could be appointed for each trust;

(3) the trial court erred in removing the trustees from the marital trusts and family trusts for the benefit of Helen Penton and Tim Mashburn;

(4) the trial court erred in not dismissing Tim Mashburn’s petition to terminate his one-ninth portion of the family trust, and

(5) alternatively, the trial court erred in failing to sustain the exceptions of prescription or peremption urged by the trustees in response to both Helen Mashburn Penton and Tim Mashburn’s petitions seeking to annul the 1997 appointment of Pat Mashburn and Richard Mashburn as trustees of the family trust.

In their supervisory writ application, the co-trustees of the family trust assert that the trial court erred in failing to grant their motion for summary judgment and to dismiss Tim Mashburn’s petition to terminate the family trust because the trust could neither be terminated under La. R.S. 9:2026 nor its principal invaded under |inLa. R.S. 9:2067 based on the alleged poverty or disability of a beneficiary. We note that these issues present the same issues as the appellants’ fourth assignment of error and they will be addressed together herein below.

III. STANDARD OF REVIEW

It is well settled that an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect. Mashburn Marital Trust (I), 924 So.2d at 246. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. Id.

IV. LAW AND DISCUSSION

I. Invasion of the Principal of the Marital Trust (Assignment of Error Number 1)

In the October 12, 2004 judgment, the trial court ordered the managing co-trustees of the marital trust to distribute $2,000 per month to Tim Mashburn from the trust. On appeal, the managing co-trustees of the marital trust assert that the trial court erred in ordering invasions of the principal of Tim Mashburn’s interest in the marital trust, since the marital trust instrument does not provide for the invasion of the principal by any of the nine beneficiaries for any reason, Tim Mash-burn will never be entitled to the principal of the trust, and therefore not | ^ entitled to invade the principal under La. R.S. 9:2067, and Tim Mashburn failed to prove his needs in accordance with La. R.S. 9:2067.

Louisiana Revised Statutes 9:2067 provides:

The proper court may direct or permit a trustee to pay income or principal from the trust property for the necessary support, maintenance, education, medical expenses, or welfare of a beneficiary before the time he is entitled to the enjoyment of that income or principal, if the interest of no other beneficiary of the trust is impaired thereby.

In construing a trust, the set-tlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. In re James C. Atkinson Clifford Trust, 2000-0253 (La.App. 1st Cir.6/23/00), 762 So.2d 775, 776, writ denied, 2000-2262 (La.10/27/00), 772 So.2d 655. Parol or extrinsic evidence may be admitted to aid in construing the trust instrument only if the instrument is ambiguous and uncertain and only to explain, not contradict the instrument. Id.

In this case, the marital trust instrument provides:

4.04 If the TRUSTEE should determine, in his sole and absolute discretion, that the income of the trust is insufficient to properly provide for the support, medical care, and well being of the first income beneficiary, then he may distribute from the principal of the trust such amounts at such intervals as he may determine necessary to provide such benefits, taking into account other income and assets of the said first income beneficiary known to the trustee.
4.05 Upon termination of the interest of the first income beneficiaries, SET-TLORS children (or, if any be deceased, their children, per stirpes) shall succeed to such interest and become secondary income beneficiaries. At that point, the trustee shall distribute to or for the benefit of the secondary income beneficiaries:
all of the income of the trust, the frequency of such payments to be at least annually.
5.01 The principal beneficiaries of this trust are SETTLORS’ children (or, if any be deceased, their children, per stirpes). Unless expressly allocated otherwise in instruments transferring property to the trust (by wills or other Acts), each principal beneficiary’s share shall be an equal fraction (or, in the case of children of a deceased |1Pchild, equal fractions of only their deceased parent’s equal share). Upon termination of the trust as to each such share, as set forth helow [sic ], the share shall be distributed to the principal beneficiary, or his estate, or as otherwise herein provided.
6.01 This trust shall terminate upon the latter event to occur of: (1) the death of the Settlor who is the last to die; or (2) the death of the last child of SETTLORS.
* * *
9.02 This trust shall be held and administered subject to the “spendthrift” provisions of the Louisiana Trust Code.

Thus, the settlors’ intent is clear and unambiguous with respect to the payment of income and principal. The marital trust instrument allowed Jack and Sadie Mashburn to invade the principal of the marital trust for their support, medical care, and well being, but it did not allow their nine children to do so for any reason. Also, the marital trust instrument only provides for the annual distribution of income, and does not provide for the payment of principal until the trust terminates at the death of the last of Jack and Sadie Mashburn’s nine children.

Although La. R.S. 9:2067, as set forth hereinabove, does allow for the payment or “invasion” of the principal of the trust in certain limited circumstances involving objective needs of the beneficiary, and then, only if such invasion will not impair the interest of any other beneficiary, before a court can order the invasion of the principal for the reasons permitted under La. R.S. 9:2067, the beneficiary must, at some point in the future, be “entitled to the enjoyment of that ... principal.”

Notwithstanding the lack of evidence in the record before us concerning the necessity of the distributions from the marital trust for Tim Mashburn’s support and the testimony of the managing co-trustees that the interest of the other beneficiaries has been (and will be) impaired by such distributions, Tim Mashburn |iswill never be “entitled to the enjoyment” (or otherwise have use of) the principal of the marital trust. The trust instrument does not provide for the payment of principal until the trust terminates at the death of the last of the settlors children.

Accordingly, we find that Tim Mashburn was not entitled to the distributions from the principal of the trust under the provisions set forth in La. R.S. 9:2067. Since the trial court incorrectly determined otherwise, we hereby reverse the October 12, 2004 judgment of the trial court on this issue.

2. Administration of the Trust and Removal of Trustees (Assignment of Error Numbers 2, 3, and 5)

Pursuant to the judgment signed by the trial court on May 12, 2005, the trial court declared that the family trust and the marital trust each created nine separate trusts, one for each of Jack and Sadie Mashburn’s nine children (for a total of eighteen trusts), removed the co-trustees from four of the trusts established by the marital trust and the family trust, and appointed the beneficiaries of those four trusts as the successor trustees for each trust, thereby determining that different trustees could be appointed for each trust. The co-trustees assert that the trial court erred in finding that there were two sets of nine separate trusts for which separate trustees could be appointed, and in removing the trustees from the marital trusts and family trusts for the benefit of Helen Penton and Tim Mashburn.

Paragraph 1.3 of the family trust instrument provides that “[t]he property delivered to the Trustee under this Trust shall be divided into equal shares, one 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.”

Paragraph 9.09 of the marital trust instrument provides:

Notwithstanding any language herein contained indicating otherwise, it is the intention of this instrument to create separate trusts for each of | uthe principal beneficiaries hereinabove named and these shall be considered as separate and independent trusts for all purposes. These trusts are created in this single instrument for convenience in execution and administration of the trusts and the TRUSTEE is specifically authorized to administer the property of the several trusts together.

In Mashburn Marital Trust (I), 924 So.2d at 248, we determined that this provision, Paragraph 9.09 of the marital trust instrument, authorized the trustees to render their annual account of the nine separate trusts established by the trust instrument together. Given the clear language contained in both the family trust and the marital trust instruments, as well as our holding in Mashburn Marital Trust (I), 924 So.2d at 248, we find no error in the trial court’s determination that the marital trust instrument settled nine separate trusts (one for the sole benefit of each of the nine children of Jack and Sadie Mashburn), and that the family trust instrument settled nine separate trusts (one for the sole benefit of each of the nine children of Jack and Sadie Mashburn). Therefore, we hereby affirm that portion of the May 12, 2005 judgment of the trial court.

However, we do find that the trial court erred and incorrectly determined that separate trustees could be appointed for each of these individual trusts; and further, we find its decision to remove the present co-trustees from four of those trusts was manifestly erroneous.

As noted above, Paragraph 9.09 of the marital trust instrument provides that “the TRUSTEE is specifically authorized to administer the property of the several trusts together.” In addition to having “all of the powers that may be exercised by the trustee” under Louisiana law, Paragraph 6.2 of the family trust instrument authorizes the trustee to “comingle [sic] the assets of the separate Trusts established by this instrument.” Additionally, the testimony and documentary evidence from the trial of this matter clearly demonstrated that both the family trust and the marital trust have been considered, managed, and administered by one 11fitrustee (or one set of co-trustees) for each trust since their establishment, and that this was done so pursuant to Jack Mashburn’s wishes.

Considering the above provisions and the evidence at trial, we find that Jack and Sadie Mashburn intended to provide the trustees of the marital trust with authority and power over all of the marital trusts jointly, and that they intended to provide the trustees of the family trust with authority and power over all of the family trusts jointly. Thus, the trial court’s judgment ordering that separate trustees be appointed for each of the marital trusts and each of the family trusts is clearly contrary to the settlors’ intent and is hereby reversed.

Moreover, without giving any reasons, the trial court’s judgment further removed the co-trustees of the family trust and the co-trustees of the marital trust from their office. Based on the evidence contained in the record before us, we find this was manifestly erroneous.

Louisiana Revised Statutes 9:1789(A) provides: “A trustee shall be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause.” This statute contemplates more than a mere technical violation of the trust code as grounds for removal of a trustee. Fontenot ex rel. Fontenot v. Choppin, 2002-0082 (La.App. 1st Cir.12/20/02), 836 So.2d 322, 324. In seeking to remove the co-trustees of the family trust and the marital trust, Helen Penton and Tim Mashburn alleged that the August 1997 order appointing Pat Mashburn and Richard Mashburn as trustees was a nullity because they never consented to it, the trustees had failed to render annual accounts of their administration of the trust, the trustees had failed to distribute income as required by the trust instruments, and the trustees had provided incomplete, misleading, and false information to the beneficiaries.

|1fiThe evidence at trial established that on May 16, 1997, at a Mashburn “family meeting,” Rita Mashburn resigned as trustee of the family trust. According to the testimony of Pat Mashburn, Rita Ann Mashburn, and Richard Mashburn, it was Helen Penton who nominated Pat Mash-burn and Richard Mashburn to serve as the co-trustees of the family trust, and thereafter, they were elected as co-trustees by a majority of the nine Mashburn children. Tim Mashburn admitted that he was present at this meeting, and both he and Helen Penton signed the minutes from the “family meeting” which detailed the events that had occurred. Thereafter, Jack Mashburn presented the copies of the minutes signed by eight of the nine beneficiaries of the trust to his attorney, Mark Rolling. Mark Rolling then prepared the August 1997 joint petition and order in accordance with Jack Mashburn’s wishes. Additionally, we note that while Tim Mash-burn alleged that he was neither served with nor given notice of the 1997 petition seeking to have Pat Mashburn and Richard Mashburn appointed as co-trustees of the family trust, and that he did not learn of the existence of that petition and order until February 22, 2005, we also note that in Tim Mashburn’s petition to terminate the family trust, filed on October 16, 2003, he alleges in paragraph 2 that “[t]he set-tlors are now deceased, and on August 19, 1997 the Court appointed [Pat] Mashburn, Sr. and Richard Mashburn to serve as successor co-trustees of the [family trust] ... and they continue to so serve.” Thus, we find that he had knowledge of that order at least as early as October 16, 2003.

Based on the evidence, we find no merit to Tim Mashburn’s and Helen Penton’s contentions that Pat Mashburn and Richard Mashburn were improperly appointed as co-trustees of the family trust and that they should be excused as trustees of the family trust because the judgment ordering their appointment as trustees was a nullity.

Moreover, we also find no evidence in the record supporting Tim [17Mashburn’s allegations that the co-trustees of the family trust failed to provide annual account-ings to the beneficiaries and failed to distribute the income from the trust. The undisputed testimony of Michael Mash-burn, Michael F. Smith, C.P.A., Richard Mashburn, and Rita Ann Mashburn indicated that accountings were prepared and presented by the co-trustees to the beneficiaries annually, and further, that the income of the trust was distributed annually, unless there was no income to distribute.

With regard to the allegations that the trustees had provided incomplete, misleading, and false information to the beneficiaries, the evidence indicated that the co-trustees of the family trust and the managing co-trustees of the marital trust started negotiating a settlement with Tim Mash-burn in an effort to end these proceedings. During the course of the negotiations, the co-trustees proposed to Tim Mashburn a “hypothetical liquidation of all of the assets of both Trusts (including any transfers from the estate [of Jack Mashburn]” the purpose of which “is to arrive at a per share value of the assets ... [to] seek a settlement with Tim Mashburn.” Tim Mashburn asserted that the values placed on these assets were false, and as such, the trustees had provided him with incomplete, misleading, and false information. However, it was the trial court, who characterized the trustees’ settlement offer as a “low-ball,” that repeatedly stated on the record that such actions taken in the course of settlement negotiations were not sufficient to remove the co-trustees from their office.

Lastly, while there was an overwhelming amount of evidence demonstrating that Tim Mashburn and Helen Penton have an acrimonious relationship with the co-trustees of the family trust and the managing co-trustees of the marital trust, mere hostility or incompatibility between the trustee and a beneficiary is not sufficient grounds for removal, unless the hostility interferes with or impairs the proper administration of the trust. See Albritton v. Albritton, 622 So.2d 709, 713 18(La.App. 1st Cir.1993). We find no such evidence in the record before us. While it is clear that Tim Mashburn and Helen Penton do not like the managing co-trustees of the marital trust and the co-trustees of the family trust administering (or controlling) their interests in the trusts, absent “cause” (ie. proof of wrongdoing or the breach of the fiduciary duty), the present co-trustees should not be removed.

Based on our review of the record, we cannot say that cause exists to remove the trustees from the family trust or the trustees (and managing co-trustees) of the marital trust from their office. To the extent that the trial court found otherwise was clearly wrong, and we hereby reverse the May 12, 2005 judgment of the trial court removing the trustees from the marital trusts and family trusts for the benefit of Helen Penton and Tim Mashburn.

3. Petition to Terminate the Family Trust (Assignment of Error Number 4 and Supervisory Writ Application)

Tim Mashburn petitioned for his family trust to be terminated and its assets distributed to him in accordance with La. R.S. 9:2026, or alternatively, that the court order the invasion and distribution of principal from his family trust for his benefit on account of his medical and financial condition and needs in accordance with La. R.S. 9:2067. Based on the undisputed material facts in the record, the co-trustees of the family trust contend that Tim Mashburn cannot terminate the family trust nor can he invade its principal; and therefore, the trial court erred in failing to grant its motion for summary judgment and dismiss Tim Mashburn’s petition.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. See Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 19230; Allen v. State ex. rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072 (La.4/9/03), 842 So.2d 373, 377. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions of file, together with any affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Robles v. Exxon-Mobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

According to the family trust instrument, the settlors stated that it was their “intent for this Trust to satisfy the legal requirements for a Class Trust and a Trust that satisfies the legitime due any beneficiary from the Settlors.” Paragraphs 1.2 and 1.3 of the family trust instrument provide that the settlors’ nine children are the beneficiaries of both income and principal. Additionally, Paragraph 4.1 provides that “[t]he term of each of the Trusts established pursuant to this instrument shall be for the maximum time allowed by the Louisiana Trust Code for the existence of class trusts.” Since the family trust included all of the settlors’ nine children, it is a class trust which was closed upon the death of Jack Mashburn, the second parent ^(and settlor) to die. See La. R.S. 9:1891 and 9:1896. When the class members of a trust are the beneficiaries of both income and principal, as in this case, “[t]he trust shall continue with respect to the share of a class member for his lifetime unless the trust instrument stipulates a shorter term.” La. R.S. 9:1906; see also La. R.S. 9:1901. Furthermore, Paragraph 5.1 of the family trust instrument provides: “Each trust created by this instrument shall be held subject to the maximum restrain on voluntary or involuntary alienation by the beneficiary permitted by the provision of the Louisiana Trust Code.” Based on these provisions, the settlors intended that Tim Mashburn’s interest in his trust will not terminate until his death and that his interest in his trust not be alienated in any way.

Nevertheless, Tim Mashburn seeks to terminate the family trust for his benefit alleging that he is destitute, handicapped, unable to work, and in need of medical attention; that his resources without distributions from his trust were insufficient to provide for his necessary support, maintenance, medical expenses, and welfare; and that he cannot qualify for public assistance because of his interest in the family trust. Alternatively, Tim Mashburn sought to invade the principal of his family trust for the payment of his monthly expenses.

Louisiana Revised Statutes 9:2026(1), entitled “Change of circumstances,” provides that “[t]he proper court may order the termination or modification of a trust, in whole or in part, if ... [t]he continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.” The modification or deviation from the terms of trust provisions based on La. R.S. 9:2026(1) depends upon an analysis of four essential elements: (1) what is the purpose(s) of the trust; (2) what are the change of circumstances, if any; (3) whether the result of the change of circumstances was anticipated by the settlor; and (4) whether the change [g1of circumstances not anticipated by the set-tlor defeats or substantially impairs the purposes of the trust. In re James C. Atkinson Clifford Trust, 762 So.2d at 776.

Thus, in this case, in order to terminate or modify the family trust under this provision, Tim Mashburn must prove that the purpose of the family trust was to provide for the needs of the beneficiaries, that there has been a change of circumstances not anticipated by the settlors (his parents), and that this change of circumstances not anticipated by his parents defeats or substantially impairs the purpose of the trust. Alternatively, to invade the principal of family trust, Tim Mashburn must establish that at some point in the future, he would be “entitled to the enjoyment of that ... principal,” that the distributions from the principal of the family trust property were necessary for his support, maintenance, education, medical expenses, or welfare, and that the invasion of the principal would not impair the interest of any other beneficiary. See La. R.S. 9:2067; Read v. U.S., Dep’t of Treasury, 169 F.3d 243, 251 (5th Cir.1999).

In moving for summary judgment, the co-trustees submitted that there was an absence of factual support for Tim Mash-burn’s actions under both La. R.S. 9:2026 and 9:2067, because Tim Mashburn has failed to make any showing that the purpose of the trust was to provide for his needs, that there has been a change of circumstances not anticipated by his parents, and that this change of circumstances not anticipated by his parents defeats or substantially impairs the purpose of the trust. Additionally, the co-trustees submit that Tim Mashburn has failed to sufficiently establish his needs, to support his allegations with medical or other corroborating evidence, to show that he will ever be entitled to the enjoyment of the principal of the trust, and to show that the interest of no other beneficiary of the trust would be impaired by the invasion of the principal. Accordingly, the co-trustees contend that since there is an absence of factual support for these essential elements of Tim Mashburn’s action to terminate the trust or invade its principal, ^summary judgment should have been granted and Tim Mashburn’s petition dismissed.

In opposition to the co-trustees’ motion for summary judgment, Tim Mashburn submitted his own affidavit which stated: “I need the income and assets of my [family trust] for my support, maintenance, medical expenses and welfare. I am handicapped and very limited in the work I may do. My monthly expenses ... [t]otal $2,017.”

Based on our de novo review of this matter, we find that this evidence submitted by Tim Mashburn was insufficient to meet his burden of establishing that there were genuine issues of material fact as the essential elements of his actions under La. R.S. 9:2026 and 9:2067 so as to preclude summary judgment in favor of the co-trustees. While Tim Mashburn seeks to terminate the family trust, and alternatively to invade its principal for the payment of his monthly expenses, there is no evidence demonstrating that this was the purpose of the trust or that there was a change of circumstances not anticipated by Jack and Sadie Mashburn. Accordingly, the trial court should have granted the motion for summary judgment filed by the co-trustees of the family trust and dismissed Tim Mashburn’s petition to terminate the family trust. Therefore, we hereby grant the supervisory writ filed by the co-trustees of the family trust; we reverse the March 9, 2005 judgment denying the co-trustees motion for summary judgment; and we hereby render judgment granting the motion for summary judgment and dismissing Tim Mashburn’s petition to terminate the family trust.

VI. CONCLUSION

For the above and foregoing reasons, we reverse the October 12, 2004 judgment on appeal because Tim Mashburn was not entitled to the distributions from the principal of the marital trust under La. R.S. 9:2067; we affirm the May 12, 2005 judgment insofar as it declares that the marital trust and the family trust | ^each created nine separate trusts (for a total of eighteen trusts) and reverse that judgment in all other respects; and we grant the supervisory writ and reverse the March 9, 2005 judgment denying the motion for summary judgment filed by the co-trustees of the family trust, grant the motion for summary judgment, and dismiss Tim Mash-burn’s petition to terminate the family trust.

All costs of this appeal are assessed to the appellees, Timothy R. Mashburn and Helen Mashburn Penton.

OCTOBER 12, 2004 JUDGMENT REVERSED; MAY 12, 2005 JUDGMENT AFFIRMED IN PART AND REVERSED IN PART; WRIT GRANTED AND MADE PEREMPTORY.

GUIDRY, J., concurs in the result.

      . In a companion case to this appeal, also rendered on this date, the co-trustees of the family trust separately appealed another judgment of the trial court ordering them to pay Tim Mashburn the sum of $2,000 per month from the family trust. Finding that the trial court erred, we reversed. See In re Mashburn Marital Trust, 2006-1753, 2006-1754 (La. App. 1st Cir. 12/28/06), 2006 WL 3804633 (unpublished opinion) ("Mashburn Marital Trust (inn.

      . Louisiana Revised Statutes 9:2026 provides:
      The proper court may order the termination or modification of a trust, in whole or in part, if:
      (1) The continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.
      (2) Except as otherwise provided by the terms of the trust, a trustee has determined that the market value of a trust is less than one hundred thousand dollars and that, in relation to the costs of administration of the trust, the continuance of the trust unchanged would defeat or substantially impair the purposes of the trust. In such a case, the court may provide for the distribution of the trust property, including principal and undistributed income, to the beneficiaries in a manner which conforms as nearly as possible to the intention of the settlor and the court shall make appropriate provisions for the appointment of a tutor in the case of a minor beneficiary. In the event of the termination or modification of a trust under the provisions of this Paragraph, the trustee shall not be subject to liability for such termination or modification.

      . Louisiana Revised Statutes 9:2067 provides:
      The proper court may direct or permit a trustee to pay income or principal from the trust property for the necessary support, maintenance, education, medical expenses, or welfare of a beneficiary before the time he is entitled to the enjoyment of that income or principal, if the interest of no other beneficiary of the trust is impaired thereby.

      . On May 23, 2006, this court, ex proprio motu, recalled the rule to show to cause previously issued concerning the La. C.C.P. art. 1915(B) designation of the October 12, 2004 judgment and the correctness of the record on appeal. In doing so, this court determined that, while the October 12, 2004 judgment ordering distributions to Tim Mashburn was not a final appealable judgment and was not properly designated as final under La. C.C.P. art. 1915(B) considering the factors set forth in Motorola, Inc. v. Associated Indemnity Corp., 2002-1351 (La.App. 1st Cir.10/22/03), 867 So.2d 723, 732, under People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752, 753 (1968), the judgment could be considered on the appeal of the final judgment in this matter, i.e. the judgment of May 12, 2005, hereinafter discussed.

      . Mashburn Real Estate, L.L.C. was formed by the co-trustees of the family trust on the advice of their attorney when the family trust acquired the leasehold interest in the Gateway Shopping Center in Ponchatoula, Louisiana. (The family trust already owned the land on which the shopping center was located.)

      . See Read v. U.S., Dep't of Treasury, 169 F.3d 243, 251 (5th Cir. 1999).

      . However, we do note that under the terms of the marital trust instrument, Tim Mash-burn is entitled to the enjoyment of the income.

      . Paragraph 8.02 of the marital trust instrument provides, in part, that: "TRUSTEES shall serve for life unless they resign, become disqualified, or are removed from office for legal cause,” and the family trust instrument does not contain provisions for the removal of trustees.

      . As we have found that the judgment removing the trustees was reversible on the merits, we pretermit discussion of the appellants alternative assignment of error, assignment of error number 5, that the trial court erred in failing to sustain the trustees exceptions of prescription (or peremption) filed in response to Helen Mashburn Penton’s and Tim Mash-burn’s petitions.

      . Louisiana Revised Statutes 9:2026(2) also provides for the early termination of a trust when a trustee has determined that the assets of a trust are less than $100,000 and that further administration of the trust would cost more than the income produced by the trust. This provision is inapplicable to the issues raised by this appeal and writ application.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Kareem PRICE.
    No. 06-KA-440.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 16, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Vincent Paciera, Assistant District Attorneys, Twenty-Fourth Judicial District, Parish of Jefferson, Gretna, Louisiana, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ¡.This is the defendant’s second appeal to this Court. In the first appeal, this Court affirmed the defendant’s conviction of armed robbery committed with a firearm. Although this Court rejected the defendant’s claim that his 40-year sentence was excessive, the Court vacated the sentence, finding it was indeterminate because the trial judge did not state whether the 40-year sentence at hard labor without benefit of parole, probation, or suspension of sentence included the increased 5-year firearm enhancement provided by LSA-R.S. 14:64.3. State v. Price, (La.App. 5 Cir. 3/1/05), 909 So.2d 612, 617.

Following remand, after properlynotify-ing the defendant of the prescriptive period for post-conviction relief, the judge reimposed the 40-year sentence, clarifying that he had originally intended to sentence the defendant to 35 years at hard labor for armed robbery, and an additional 5 years for the firearm enhancement, for a total of 40 years.

The defendant filed a pro se Motion for Appeal and for Appointment of Counsel. The defendant’s attorney filed a brief pursuant to Anders v. California, 3386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, during our review of this matter it was discovered that upon re-sentencing, defendant was not represented by counsel. This Court denied the defendant’s attorney’s Motion to Withdraw and ordered him to file a brief addressing this issue. Defendant’s attorney complied with this order and he filed a brief on defendant’s behalf claiming defendant was entitled to be represented by counsel at re-sentencing. The brief points out that, after this Court vacated defendant’s sentence, the trial court corrected the sentence by re-sentencing defendant.

A defendant has the right to counsel at every critical stage of the proceedings against him, including sentencing. See, State v. Kirsch, 01-1017 (La.App. 5 Cir. 3/26/02), 815 So.2d 215, 217, citing McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); La. Const. art. I, § 13. Furthermore, the constitutional right to the assistance of counsel provided by the Sixth Amendment of the United States Constitution mandates the right, unless waived, to the assistance of counsel at every critical stage of the proceedings, including an initial or deferred sentencing. See, State v. Lefeure, 01-1003 (La.App. 5 Cir. 1/15/02), 807 So.2d 922, 923-924, and cases cited therein. Sentence imposed without the presence of defendant’s attorney is illegal and of no effect, for certain vital issues cannot be raised and important rights may be lost if not raised or exercised prior to this stage of the proceedings. Id. Unless a defendant has made a knowing and intelligent waiver of his right to counsel, any sentence imposed in the absence of counsel is invalid and must be set aside. See, State v. Lefeure, at 924, and the cases cited therein.

In State v. Lefeure, supra, the defendant complained that he was re-sentenced in violation of his right to counsel. In that case, this Court noted that it had previously vacated the defendant's sentence as excessive and remanded for re-sentencing. On the defendant’s appeal following his re-sentencing, this Court |4found that the defendant had waived counsel during the trial, but that the waiver of counsel did not extend to the sentencing phase. Thus, this Court found that the defendant was re-sentenced in violation of his right to counsel and vacated the sentence and remanded for re-sentencing. Lefeure, 807 So.2d at 924.

In the instant case, the record indicates that the defendant appeared before the trial judge at re-sentencing without counsel and was not questioned to determine if he knowingly and intelligently waived his right to counsel at that time. Accordingly, we vacate the sentence and remand for re-sentencing with the presence of counsel.

For the foregoing reasons, the defendant’s sentence is vacated. This matter is remanded to the trial court for proceedings consistent with this opinion.

SENTENCE VACATED; MATTER REMANDED.


text:
    STATE of Louisiana v. Claire G. ROBERTS.
    No. 06-KA-678.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 18, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Martin E. Regan, Jr., Karla M. Baker, Regan & Associates, P.L.C., New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

| ^Defendant Claire Roberts appeals a judgment that set forth the amount of restitution she is obligated to pay. For the reasons that follow, we find that her appeal of this judgment is untimely, and hereby dismiss the appeal, finding that Roberts’ remedy is to file an application for post conviction relief in the district court, seeking reinstatement of her appeal rights, as per State v. Counterman, 475 So.2d 336, (La.1985).

Claire Roberts was charged in a bill of information on July 30, 2002 with twelve counts of theft of currency ranging from $16,000 to $43,000 in violation of LSA-R.S. 14:67 and one count of insurance fraud in violation of LSA-R.S. 22:1243. She initially pled not guilty but later withdrew her not guilty plea and pled guilty as charged to all thirteen counts. On the same day as her plea, September 13, 2004, defendant was sentenced, which included being ordered to pay restitution.

|rA hearing to set restitution was held on January 13, 2005. Counsel for defendant objected on the record to the amount set in the hearing. The trial court set a status hearing on the restitution payments for September 15, 2005, which was heard on January 11, 2006 due to Hurricane Katrina.

At that status hearing, defendant challenged the trial court’s previous January 13, 2005 ruling setting the amount of restitution and determination that the defendant was solidarily liable for the entire amount. The trial court stated that it had previously set restitution and that defendant could have appealed the amount at the time but did not do so. Defendant’s objection was noted for the record. The trial court offered to allow defendant to withdraw her guilty plea, but she declined.

Thereafter, on January 13, 2006, defendant filed a Motion for New Trial, arguing that the trial court erred in setting restitution in an amount over $90,000. She asserted other errors as well. A hearing on the Motion for New Trial was held on April 27, 2006. Defense counsel stated that the general basis of the Motion was to determine the proper sum of restitution owed by defendant. The trial court denied the Motion.

On February 8, 2006, between filing her Motion for New Trial and the hearing, defendant filed a Motion for Appeal. The appeal was lodged in this court on September 22, 2006. On November 22, 2006, the State of Louisiana, appellee, filed a Motion to Dismiss Defendant’s appeal as untimely.

This court agrees with the State that the record reflects that this appeal is untimely. The time delays for filing appeals are set forth in LSA-C.Cr.P. art. 914, which provides that a motion for appeal must be made no later than 30 days after the rendition of the judgment or ruling from which the appeal is taken or from the ruling on a motion to reconsider sentence filed pursuant to LSA-C.Cr.P. art. 881.1.

LHere, defendant pled guilty and the amount of restitution was set at a hearing held on January 13, 2005. In State v. Peters, 611 So.2d 191 (La.App. 5 Cir.1992), this court found that the setting of the amount of restitution is a judgment that imposes sentence under LSA-C.Cr.P. art. 912(C)(1) and, therefore, is an appealable judgment. See also State v. Lewis, 01-490 (La.App. 5 Cir. 10/30/01), 800 So.2d 1032, (the amount of restitution is a matter for review on appeal).

Based on the foregoing, defendant’s conviction and sentence became final when defendant failed to make a timely motion for appeal or a timely motion to reconsider sentence from the judgment setting the amount of restitution for which defendant was liable. Defendant had thirty days from January 13, 2005 in which to seek appeal from the judgment setting the amount of restitution. Defendant’s Motion for New Trial, filed one year later on January 13, 2006, was untimely.

A defendant who has failed to timely appeal may seek reinstatement of his right to appeal through an application for post conviction relief. A defendant has two years from the date of judgment of conviction and sentence has become final to file an application for post conviction relief, unless certain exceptions apply. LSA-C.Cr.P. art. 930.8.

Here, defendant’s conviction and sentence became final on February 12, 2005. Thus, under LSA-C.Cr.P. art. 930.8, defendant has until February 12, 2007 to file an application for post conviction relief in the district court seeking reinstatement of her appeal rights. Accordingly, this appeal is hereby dismissed as untimely, and defendant is duly advised of the foregoing.

APPEAL DISMISSED.

      . Defendant's theft convictions resulted from a scheme wherein she received money by presenting false death certificates to insurance companies in order to collect life insurance proceeds.

      . There are co-defendants in this case, but this appeal concerns only Roberts.

      . Defendant filed a Supplemental and Amending Motion for New Trial on April 12, 2006, but it was duplicative of the first one she filed.

      . See, State v. Jupiter, 05-869 (La.App. 5 Cir. 2/3/06), 922 So.2d 1245, where this court found the defendant’s appeal untimely when defendant filed a motion to reconsider sentence more than 30 days following the imposition of his sentence and his motion for appeal filed the untimely motion to reconsider sentence.


author: EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Tron HUGHES.
    No. 2004-KA-1797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.
    Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-dani/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|1 This case is once again before us on remand from the Louisiana Supreme Court for consideration of defendant/appellant Tron Hughes’ second assignment of error. See State v. Hughes, 2005-0992 (La.11/29/06) 943 So.2d 1047 reversing State v. Hughes, 2004-1797 (La.App. 4 Cir. 3/16/05) 900 So.2d 168.

In his second assignment of error, the defendant claims that his sentence is illegally excessive. First, he argues that the court erred when it imposed the sentence without benefit of parole, probation, or suspension of sentence, noting that these prohibitions are required under the manslaughter statute only when the victim is under the age of ten years. La.Rev. Stat. 14:31(B). This contention is correct, and because the victim was not under age ten, the court erred in stating that the sentence must be served without benefits.

Next the defendant argues that the sentence of twenty years, one-half the maximum that could be imposed, is excessive. However, we are unable to review this issue because the court reporter has certified that she is unable to locate the necessary notes or audiotapes of the sentencing proceeding, and therefore the sentencing transcript is not included in the appellate record. See State v. Diggs, 93-03242 (La.App. 4 Cir. 6/29/05) 657 So.2d 1104, (unavailability of an officer’s complete testimony necessitated a new trial because it could not be determined whether the missing testimony was substantial or inconsequential, or whether any objections or motions had been made during the officer’s testimony); see also State v. Bright, 00-1255 (La.App. 4 Cir. 2/6/02), 809 So.2d 1112 (the trial transcript containing numerous mistakes and omissions not sufficient for review).

In this case, the minute entry of sentencing indicates that counsel orally objected to the sentence and moved for a reconsideration of sentence, and thus the issue of excessive sentence was preserved. The appellant’s sentence is one-half of the maximum. The record does not indicate that he was more than a first offender. The trial court obtained a presentence investigation report and ordered it sealed for the record. However, when this Court requested the report from the Property and Evidence Room, the sealed envelope that was sent contained a copy of the jury verdict and not the presentence investigation report. Thus, without the sentencing transcript, this Court is not in a position to know what information the trial court relied upon in sentencing the defendant. Because of the lack of the transcript of the sentencing proceeding, this assignment of error cannot be considered.

Accordingly, the defendant’s sentence is vacated and the matter is remanded to the district court for resentencing, reserving to the appellant the right to appeal his new sentence.

SENTENCE VACATED; REMANDED.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Kevin WILLIAMS.
    No. 2006-KA-1150.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 24, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge, TERRI F. LOVE, Judge, MAX N. TOBIAS JR.).
   MICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

On November 16, 2004, the state filed a bill of information in case number 453-774 charging defendant, Kevin J. Williams, with illegal possession of stolen property, in violation of La. R.S. 14:69(A). Defendant pleaded not guilty at his arraignment on November 30, 2004. A hearing on motions was set for December 21, 2004. The docket master notes that the trial court continued the motion hearing to January 14, 2005. The docket master also notes that the police officer in this matter failed to appear for the January 14, 2005, hearing, and that the trial court found no probable cause and set a trial date of February 28, 2005. On that date, the state moved orally for a continuance that was denied by the trial court. The state entered a nolle prosequi, and defendant was released.

The case was reinstated approximately three months later on June 1, 2005, as case number 459-904 which was allotted to Section “K” to follow the previous case, 453-774. On June 24, 2005, defendant appeared for arraignment, entered a plea of not guilty, and made an oral motion to quash the bill of information. Defendant filed a written motion to quash later on June 24, 2005, wherein he stated: “State was denied Motion to Continue and therefore nolle prosequied the |2case, and has since re-instituted. As a result the defendant’s constitutional right to a speedy trial was denied. As a result the bill of information should be quashed.” A hearing on motions was set for July 22, 2005. On that date, the trial court granted defendant’s motion to quash bill of information. The record does not contain trial court’s reasons for granting the defendant’s motion. The state appeals.

STATEMENT OF FACT

A recitation of the facts of the offense is irrelevant to the issues raised by the state on appeal.

DISCUSSION

The state argues that the trial court erred in granting the defendant’s motion to quash based on the denial of his right to a speedy trial. Although the trial court did not give reasons for granting the motion to quash, the only ground raised in the defendant’s motion was the denial of his constitutional right to a speedy trial.

The state argues correctly that it has the authority to enter a nolle prosequi and reinstitute the charges. Both this court and the Louisiana Supreme Court have recognized this authority, but have also recognized that it may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. See State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, and State v. Scott, 2004-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843. In Scott, this court discussed the factors to be considered with regard to a defendant’s constitutional right to a speedy trial:

|sThe right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. In addition to the statutory right to a speedy trial recognized by La.C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing a constitutional speedy trial violation claim, the four factor test forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is applied; to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The initial factor, the length of the delay, is often referred to as the “triggering mechanism” because absent a “presumptively prejudicial” delay, further inquiry into the Barker factors is unnecessary. See State v. Santiago, 03-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671. Under Barker, the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay. State v. Reaves, 376 So.2d 136, 138 (La.1979). Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984), citing Barker, 407 U.S. at 531, 92 S.Ct. 2182. The manner of proof must also be considered, as must the gravity of the alleged crime. Id.
A defendant challenging the state’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.
2004-1142 at pp. 11-12, 913 So.2d at 850-851.

In Love, the Supreme Court discussed the relationship of the appellate and trial courts and stated:

Because of the complementary role of trial courts and appellate courts demands that deference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.
2000-3347 at pp. 9-10, 847 So.2d at 1206.

LAdditionally, in State v. Harris, 2003-0524, p. 4 (La.App. 4 Cir. 9/10/03), 857 So.2d 16, 18, this court wrote:

Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash.

Recently, in State v. Batiste, 2005-1571, p. 5 (La.10/17/06), 939 So.2d 1245, 1249, the Supreme Court stated:

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a case-by-case basis. State v. Love, 00-3347, p. 14 (La.5/23/03), 847 So.2d 1198, 1209. In those cases “where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.” Id.

In Batiste, the court found that the reason for the dismissal of the earlier charge was because the victim was unavailable to testify. The court then considered the defendant’s speedy trial claim and found that although nineteen months elapsed between the filing of the original bill and the quashing of the charges in the second case, the reasons for the delay were not solely those of the state. The court found that there was no intentional delay on the state’s part to gain a tactical advantage, that the defendant did not assert his speedy trial right prior to filing his motion to quash, and that there was no suggestion that his defense was impaired by the delay. The court then reversed the trial court’s quashing of the charge and this court’s affirmation of the trial court’s ruling.

|fiUnder Barker, the first question is whether the delay was sufficient to act as a triggering mechanism. In this case, we conclude that it was not. Only eight months elapsed from the filing of the original bill of information to the granting of the motion to quash. While the Supreme Court held in State v. Reaves, 376 So.2d 136 (La.1979), that a delay of three and one-half months was sufficient to violate the defendant’s rights, that case involved misdemeanor possession of marijuana, not a felony as in the instant case, and the defendant in Reaves repeatedly made fruitless court appearances until he was forced to enter a guilty plea. In this case, the defendant made five court appearances prior to the filing of the motion to quash; two were arraignments, two were motion hearings, and one was an appearance for trial. On the day of the scheduled trial, the state asked for a continuance and the trial court granted the motion to quash. The record does not reveal the reasons for the state’s request for a continuance.

Furthermore, this court has more recently determined that delays of less than a year were not sufficient to trigger a consideration of the other Barker factors. For example, in State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, this court found that a nine-month delay for a defendant forced to travel from Houston to New Orleans after being charged with cheating at gaming did not merit the granting of a motion to quash. In State v. Keller, 2003-0986 (La.App. 4 Cir. 10/1/03), 859 So.2d 743, this court held that a six and one-half month delay between the filing of the first bill of information and the granting of the motion to quash the reinst-ituted bill was not presumptively prejudicial and that the trial court had abused its discretion when it granted the motion to quash. In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, there was an eleven-month delay. The court suggested that the delay might not be presumptively prejudicial, as most | fiprior cases considered by the court had involved delays of more than one year. However, the court evaluated the remaining Barker factors because of Reaves and ultimately reversed the trial court’s decision granting the motion to quash finding that the state had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice.

Unlike in Batiste, the state’s reasons for asking for a continuance on February 28, 2005, are not present in the record. Nonetheless, considering the short amount of time between the filing of the original bill of information and the granting of the motion to quash, this court cannot uphold the trial’s court’s ruling on defendant’s motion to quash. No intentional delay on the state’s part to gain a tactical advantage has been shown. Further, it does not appear that the defendant was in custody during any of the proceedings. Moreover, defendant failed to assert his speedy trial right prior to filing his motion to quash. Additionally, defendant has failed to argue that his defense was impaired by the delay. The trial court’s decision to quash the bill of information was an abuse of discretion warranting reversal.

CONCLUSION:

For the foregoing reasons the ruling of the court below is reversed and the case remanded for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

      . The Louisiana Supreme Court granted writs and reversed this court's decision because the state failed to timely move for an appeal from the trial court's granting of the motion to quash. State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.