author:
WELCH, J.
      GAIDRY, J.,

text:
    In the Matter of the MASHBURN MARITAL TRUSTS.
    No. 2010 CA 1104.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.
    Rehearing Denied Feb. 7, 2011.

      L. Kevin Coleman, Mandeville, LA, Attorney for Appellants Joseph Patton Mashburn and Richard Anthony Mash-burn, in Their Capacities as the Co-Trustees of the Mashburn Family Trust and Joseph Patton Mashburn and Donald J. Mashburn, in their Capacities as Managing Co-Trustees of the Jack and Sadie Pugh Mashburn Marital Trust.
    Walter Antin, Jr., Hammond, LA, Attorney for Appellee Timothy R. Mashburn.
    Pierre V. Miller, Metairie, LA, and Pierre V. Miller, II, New Orleans, LA, Attorneys for Appellee Helen Mashburn Penton.
    Craig J. Robichaux, Mandeville, LA, Attorney for Appellee Rita Mashburn.
    Before CARTER, C.J., and GAIDRY and WELCH, JJ.
   WELCH, J.

12Joseph 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 Pat Mashburn and Richard A. Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust (“family trust”) appeal a trial court judgment that ordered the managing cotrustees of the marital trust and the co-trustees of the family trust to disburse to Timothy R. (“Tim”) Mashburn and Helen Mashburn Penton, both of whom are beneficiaries of the marital trust and the family trust, the 2007 income from their respective marital and family trusts; ordered the co-trustees of the family trust to allocate and distribute delayed income from the family trust; and rendered judgment for those sums in favor of Tim Mashburn and Helen Mashburn Penton and against the respective co-trustees of each trust. For reasons that follow, we amend the judgment, and as amended, the judgment is affirmed in part and reversed in part.

FACTUAL AND PROCEDURAL HISTORY

The background facts of this case are more fully set forth in this court’s opinion in the companion case, also rendered this date, In Re Mashburn Marital Trust, 2010-0278 (La.App. 1st Cir.12/22/10), 52 So.3d 1136 (“Mashburn Marital Trust (V)”), wherein the managing co-trustees of the marital trust and co-trustees of the family trust challenged a trial court judgment ordering the co-trustees of the family trust and the managing co-trustees of the marital trust to distribute to Tim Mash-burn and Helen Mashburn Penton the income from their respective marital trust and family trust for the year 2008, and ordering that such sum be the same sums of income that they distributed to the other beneficiaries of those trusts. For additional background facts, see In Re Mashburn Marital Trust, 2004-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, writ denied, 2006-1034 (La.9/22/06), 937 So.2d 384 (“Mashburn Marital Trust (I)”); In Re Mashburn Marital Trusts, 2006-0741, 2006-0742, 2005-0887 (La.App. 1st Cir.12/28/06), 951 So.2d 1136, writs denied, 2007-0403, 2007-0446 (La.4/20/07), 954 So.2d 164, 167 (“Mashburn Marital Trust (II)”); In Re Mashburn Marital Trust, 2006-1753, 2006-1754, 2005-0887 (La.App. 1st Cir.12/28/06), 947 So.2d 852 (unpublished opinion), writ denied, 2007-0403 (La.4/20/07), 954 So.2d 164 (“Mashburn Marital Trust (III)”), and In Re Mashburn Marital Trust, 2008-0450 (La.App. 1st Cir.10/31/08), 994 So.2d 157 (unpublished opinion) (“Mashburn Marital Tmst (IV)”).

On June 24, 2009, after Tim Mashburn obtained the favorable judgment in the trial court at issue in Mashbum Marital Tmst(V) with respect to the distribution of income for 2008, Tim Mashburn filed a motion to compel the co trustees of the family trust and the managing co-trustees of the marital trust to distribute the 2007 income from his family trust and his marital trust. For the same reasons that the co-trustees of the family trust and the managing co-trustees of the marital trust did not distribute the 2008 income from the trusts to Tim Mashburn and Helen Mashburn Penton, they distributed only part of the 2007 income from both trusts to Tim Mashburn and Helen Mashburn Pen-ton.

Prior to filing the motions to compel the distribution of income for 2007 and 2008, Tim Mashburn had filed, on May 9, 2008, a motion to allocate and distribute delayed income from the family trust. In this motion, Tim Mashburn alleged that on June 27, 1991, the predecessors of the current co-trustees of the family trust acquired an interest in certain unimproved, immovable property located on Coburn Road North (“Coburn Road property”) by cash deed, and that on May 29, 2003 the co-trustees of the family trust sold the trust’s interest in the Lproperty. Tim Mashburn further alleged that during the time the Coburn Road property was held by the family trust, it produced no income, and as such, was underproductive property as defined by La. R.S. 9:2155. In accordance with La. R.S. 9:2155, Tim Mashburn contended that the co-trustees of the family trust should have allocated a portion of the sale proceeds to income and distributed those sums, but that they failed to do so. Accordingly, Tim Mashburn requested that the court order the distribution of that delayed income to him. On May 13, 2009, Helen Mashburn Penton filed a motion to allocate and distribute delayed income, essentially adopting the same allegations and request for relief as Tim Mashburn’s motion.

In response, the co-trustees of the family trust filed a peremptory exception raising the objections of prescription and per-emption. The trial court overruled the objections by judgment signed on July 21, 2008. A hearing with respect to the motions to allocate and distribute delayed income and the motions to compel the distribution of the 2007 income was held on August 31, 2009. At the conclusion of the hearing, the trial court took the matter under advisement. On December 4, 2009, the trial court issued written reasons for judgment finding that “both [Tim] Mash-burn and Helen Mashburn Penton should share equally in the fruits of the two sets of nine identical trusts,” and “to arrive at that goal, the [c]ourt hereby orders the Trustees to pay each [Tim] Mashburn and Helen Mashburn Penton their withheld trust income [for 2007] of $2,597.00 and their delayed income of $34,005.00 from the Coburn Road property, each, for a total of $36,602.00 each.” A written judgment reflecting the .trial court’s ruling in |fithis regard was signed on February 24, 2010, and it is from this judgment that the managing co-trustees of the marital trust and the co-trustees of the family trust have appealed.

On appeal, the co-trustees of the family trust and the managing co-trustees of the marital trust assert that the trial court erred in determining that Tim Mashburn and Helen Mashburn Penton were entitled to equal amounts of income for 2007. Additionally, with respect to claim for delayed income due to unproductive property, they assert that the trial court erred in overruling their peremptory exception raising the objections of prescription and peremption, and alternatively, in determining that delayed income, in the amount of $34,005.00, was owed to Tim Mashburn and Helen Mashburn Penton.

MOTION TO DISTRIBUTE 2007 INCOME

In Tim Mashburn’s motion to compel the distribution of 2007 income from the marital and family trusts, he alleged that the managing co-trustees of the marital trust had not distributed to him the 2007 income from his marital trust in the amount of $1,015.00, and that the co-trustees of the family trust had not distributed to him the 2007 income from his family trust in the amount of $1,582.00. Therefore, he requested an order compelling the co-trustees of each trust to distribute this income to him. Helen Mashburn Penton joined Tim Mashburn in this motion.

The co-trustees of the family trust and the managing co-trustees of the 1 ¿marital trust did not dispute that those sums had not been paid to Tim Mashburn and Helen Mashburn Penton. Instead, they contended that Tim Mashburn and Helen Mash-burn Penton were not entitled to the same sums of income as the other beneficiaries and to the distribution of all of the income for 2007 for the same reasons that they contended Tim Mashburn and Helen Mashburn Penton were not entitled any income for 2008, i.e., that after the litigation expenses incurred by the co-trustees were allocated to the trusts of Helen Mashburn Penton and Tim Mashburn on a pro-rata basis, there was no income left to distribute; that there was little to no income to be distributed to Tim Mashburn, since he had received principal distributions from the marital trust that he was not entitled to receive and had not paid back; and that the increase in the cost of the construction incurred by the family trust as a result of the alleged wrongful notice of lis pendens was to be assessed to the income of Tim Mashburn’s family trust.

The issues raised in this appeal with regard to the 2007 income are the same as the issues raised with regard to the 2008 income and are fully addressed in the opinion in the companion case also rendered this date, Mashburn Marital Trust (V). For the reasons set forth in Mashburn Marital Trust (V), we find that the managing co-trustees of the marital trust and the co-trustees of the family trust were not authorized to allocate litigation expenses to Helen Mashburn Penton or Tim Mash-burn. As such, the February 24, 2010 judgment of the trial court is affirmed in insofar as it renders judgment in the amount of $2,597.00 in favor of Helen Mashburn Penton and against the managing co-trustees of the marital trust and the co-trustees of the family trust.

Also for the reasons set forth in Mashburn Marital Trust (V), we find that the managing co-trustees of the marital trust were authorized to retain the 2007 income to be distributed to Tim Mashburn from his marital trust |7($1,015.00) until the amount of the principal previously advanced to Tim Mashburn has been paid back; however, the co-trustees of the family trust cannot use them unliquidated claim for damages against Tim Mashburn to offset the 2007 income Tim Mashburn was entitled to be distributed from his family trust. The judgment of the trial court did not distinguish the amount of income owed to Tim Mashburn for 2007 by co-trustees of the family trust from the amount of income owed to him by the managing co-trustees of the marital trust. Instead, the judgment orders the co-trustees of both trusts to pay the total sum of $2,597.00, representing the 2007 income that was withheld from both trusts. Therefore, with respect to Tim Mashburn, we amend the judgment of the trial court to order the co-trustees of the family trust to distribute to Tim Mashburn the withheld income for 2007 in' the amount of $1,582.00. As amended, these provisions of the February 24, 2010 judgment are affirmed.

MOTION TO ALLOCATE AND DISTRIBUTE DELAYED INCOME

The family trust acquired the Coburn Road property from Jack and Sadie Mash-burn on June 27, 1991, purportedly for the sum of $90,000.00. The Coburn Road property was held by the trust as an investment for 12 years until May 29, 2003, when it was sold for $675,000.00.

Tim Mashburn contends that the Co-burn Road property produced no income while held by the trust and, therefore according to La. R.S. 9:2155, is considered “underproductive” from January 1, 1991 through May 29, 2003. Additionally, he contends that part of the sale proceeds should be allocated to income for the years it was underproductive and paid to him according to the terms of his trust.

Louisiana Revised Statutes 9:2155, entitled “[ujnderproductive property,” provides:

A portion of the net proceeds of sale of any part of principal that |shas not produced an average net income (including the value of any beneficial use of the property by the income beneficiary) of at least one percent per annum of its inventory value for more than a year shall be treated as delayed income to which the income beneficiary is entitled as provided in this section. The net proceeds of sale are the gross proceeds received, including the value of any property received in substitution for the property disposed of, less expenses, including income taxes, incurred in disposition and less carrying charges accrued while the property was underproductive. The sum allocated as delayed income is the difference between the net proceeds and the amount that, had it been invested at simple interest at four percent per annum while the property was under-productive, would have produced the net proceeds. That sum, plus any carrying charges and expenses previously charged against income while the property was underproductive, less any income received by the income beneficiary from the property and less the value of any beneficial use of the property by the income beneficiary, is income, and the balance is principal.
Property becomes underproductive at the beginning of the year in which it fails to produce an average net income of at least one percent per annum.
If there are successive income beneficiaries, the delayed income shall be divided among them or their heirs, legatees, or assignees according to the length of the period during which each was entitled to income.
If principal subject to this section is disposed of by conversion into property that cannot be apportioned easily, the income beneficiary is entitled to the net income from the substituted property while it is held. If within five years after the conversion the substituted property has not been further converted into easily apportionable property, no allocation as provided in this section shall be made.
This section does not apply to any period during which the trustee is under an express direction not to sell or dispose of the principal or to any period before the income from a legacy begins to accrue to the benefit of the income beneficiary.

In response to the motion to allocate and distribute delayed income, the co-trustees of the family trust filed a peremptory exception raising the objections of prescription and peremption, which was based on La. R.S. 9:2234. Louisiana Revised Statutes 9:2234 provides:

A. An action for damages by a beneficiary against a trustee for any act, omission, or breach of duty shall be brought within two years of the date that the trustee renders, by actual delivery or mail to the beneficiary, or if the beneficiary lacks legal capacity, the | sbeneficiary’s legal representative, to the last known address of the beneficiary and that of the legal representative if any, an accounting for the accounting period in which the alleged act, omission, or breach of duty arising out of the matters disclosed therein occurred. However, such actions shall in all events, even as to actions within two years of disclosure, be filed within three years of the date that the trustee renders an accounting for the accounting period in which the alleged act, omission, or breach of duty occurred. If a beneficiary is a minor when a trustee’s accounting for the accounting period in which the alleged act, omission, or breach of duty occurred is rendered, the prescriptive period of two years begins to run from the day he reaches the age of eighteen years.
B. Any action by a beneficiary against a trustee other than those described on Subsection A of this Section is prescribed by two years beginning from the date that the trustee renders his final account to the beneficiary.
C. The provisions of this Section are remedial and apply to all causes of action for damages without regard to the date when the alleged act, omission, or breach of duty occurred. The two-year and three-year periods of limitation provided for in this Section are peremptive periods within the meaning of Civil Code Article 3458, and in accordance with Civil Code Article 3461 may not be renounced, interrupted, or suspended. Notwithstanding the foregoing, a beneficiary shall have one year from July 9, 1999, to bring an action for damages against a trustee arising out of an act, omission, or breach of duty for a transaction disclosed in any prior accounting.
D. Notwithstanding any other provision of law, all actions brought in the state against any trustee, the prescriptive and peremptive period shall be governed exclusively by this Section.

The trustees contended that the sale of the Coburn Road property, the sales price, the expenses, and tax deductions resulting from the sale were reported and disclosed to all of the beneficiaries at the family meeting on May 25, 2004. Tim Mashburn attended this family meeting and received copies of the 2003 annual account, the meeting agenda, and the settlement statement for the sale of the Coburn Road property. Helen Mashburn Penton attended the same meeting and received the same information at the same time. Thus, the trustees contend that under La. R.S. 9:2234(A), the peremptive period for Tim Mashburn and Helen Mashburn’s claim elapsed two years after Tim Mashburn received the 2003 annual account (or on May 25, 2006). The co-trustees of the | infamily trust further contend that even if the various accounts had not been delivered to Tim Mashburn, the very last day to bring his action was three years from the date the 2003 annual account was rendered, or on May 25, 2007. Thus, when Tim Mashburn brought his motion seeking delayed income from that sale approximately four years later on May 9, 2008, the peremptive period had already elapsed. The co-trustees of the family trust contend that the trial court erred in overruling the objection.

In response to the objections, Tim Mashburn and Helen Mashburn Penton asserted that their action neither claimed any wrongful act, omission or breach of duty by the co-trustees nor did it seek damages against the co-trustees, but rather, sought the proper distribution of trust income required under La. R.S. 9:2155 and the trust instrument. Accordingly, Tim Mashburn and Helen Mashburn Penton contended that La. R.S. 9:2234(A) is inapplicable, since that provision is limited to claims for damages. Tim Mashburn and Helen Mashburn Penton further contended that their action is governed by La. R.S. 9:2234(B), which provides for a two-year peremptive period that runs from the date of the trustee’s final accounting to the beneficiary in any action by a beneficiary against a trustee other than an action described by La. R.S. 9:2234(A). Further, they maintain that since there is no dispute that the co-trustees of the family trust have not rendered a final account in this matter, their action would be neither perempted nor prescribed under La. R.S. 9:2234(B).

Therefore, the deciding factor as to whether Tim Mashburn’s and Helen Mash-burn’s claim is perempted or prescribed is whether their motion to distribute and allocate delayed income is an action for “damages” due to an “act, omission, or breach of duty” by the co-trustees. See La. R.S. 9:2234(A). Based on our review of the pleadings, we conclude that they have not asserted such a | nclaim for damages. The remedy Tim Mashburn and Helen Mashburn Penton are seeking from the co-trustees is the distribution of delayed income that they were purportedly entitled to receive under the terms of La. R.S. 9:2155 and the family trust instrument. Neither Tim Mashburn nor Helen Mashburn Penton have alleged any intentional misconduct by the co-trustees or that the co-trustees breached a fiduciary duty. Rather, they only allege that the co-trustees should have allocated a portion of the sale proceeds to income and distributed it, but they did not.

Therefore, because we have concluded that Tim Mashburn and Helen Mashburn Penton’s motion to allocate and distribute delayed income is not an action for damages, the applicable prescriptive and per-emptive periods are set forth in La. R.S. 9:2234(B) and commence to run from the date of the final accounting. Since the final accounting by the co-trustees of the family trust has not occurred, Tim Mash-burn’s and Helen Mashburn Penton’s claims for delayed income are neither prescribed nor perempted. Thus, the trial court properly overruled the co-trustees’ peremptory exception raising the objections of prescription and peremption.

With regard to the merits of the claim for the distribution of delayed income, the parties stipulated to the following facts:

Jack and Sadie Mashburn established the family trust for the benefit of each of their nine children. Pat and Richard Mashburn are the co-trustees of the family trust. Tim Mashburn and Helen Mash-burn Penton are the beneficiaries of the family trust established for his benefit. The family trust requires all income to be distributed. On June 27, 1991, the family trust acquired the Coburn Road property by a cash deed from Jack and Sadie Mash-burn, but in truth and in fact, the property was gifted by Jack and Sadie Mashburn to the family trust, a one-ninth undivided interest each, without consideration. The 1 ]2Coburn Road property produced no income during the period that it was owned by the family trust. The family trusts neither incurred nor accrued any carrying charges or other expenses with respect to the Coburn Road property during the period that it was owned by the family trust. The family trust sold the property to Oak Knoll, L.L.C. on May 29, 2003. The family trust continuously owned the property from the time of acquiring it on June 27, 1991, thx-ough and until the time of its sale on May 29, 2003. The entire amount received by the family trust from the sale of the property to Oak Knoll, L.L.C. and all of the expenses incident'to that sale are shown on the HUD settlement statement dated May 29, 2003, and prepared by Nita Gorrell for the sale of the Coburn Road property by the family trust to Oak Knoll, L.L.C. The family trust sold the property for $675,000.00. Everything the family trust received from the sale of the Coburn Road property was shown on the HUD statement. The family trust received no property other than cash in exchange or substitution for the property on its sale to Oak Knoll, L.L.C. All expenses incurred by the family trust on the sale of the property to Oak Knoll were itemized on the HUD statement. Tim Mashburn and Helen Mashburn Penton had no beneficial use of the Coburn Road property while it was owned by the family trust. None of the Coburn Road property’s sale proceeds were allocated to income and distributed to the beneficiaries of the family trust.

Following these stipulations, the parties agreed that the only issues to be resolved were whether a distribution of delayed income was to be made as a matter of law, and if so, the amount of the distribution, ie., the proper calculation of that distribution. The trial court’s written reasons are silent with respect to the Coburn Road property, other than its order that the co-trustees of the family trust pay Tim Mash-burn and Helen Mashburn Penton “their delayed income of $34,005.00 from the Co-burn Road property....”

| i3The testimony at the hearing on this matter established that the Coburn Road property was sold on May 29, 2003, without objection by any of the beneficiaries. After the sale and payment of capital gains taxes, the net proceeds were invested first into stocks and bonds at Merrill Lynch and then used to purchase the leasehold improvements in the Gateway Shopping Center and to make other improvements to trust property. Prior to this investment, the family trust owned only the land on which the shopping center was built. All of these events — the sale and the purchase of the leasehold improvements — took place within one year of the sale of the Coburn Road property. The testimony also established that the income of the family trust has increased by more than thirty percent due to investment of the sale proceeds into the shopping center and other assets and that all of the beneficiaries of the family trust have accepted this enhanced income.

Based on this evidence, we must conclude that Tim Mashburn and Helen Mashburn Penton were not entitled to a distribution of delayed income from the family trust. Under La. R.S. 9:2155, if underproductive property “is disposed of by conversion into property that cannot be apportioned easily, the income beneficiary is entitled to the net income from the substituted property while it is held. If within five years after the conversion the substituted property has not been further converted into easily apportionable property, no allocation as provided in this section shall be made.” The Coburn Road property was sold, and its proceeds converted or invested into the leasehold improvements on the Gateway Shopping Center, which is property that “cannot be apportioned easily.” The beneficiaries have enjoyed the net income from the Gateway Shopping Center, and the proceeds from the sale have been invested in that property for more than five years. Thus, under the specific terms of La. R.S. 9:2155, no allocation of delayed income for underproductive property can be | i4made.

Since the trial court incorrectly concluded otherwise, we reverse that portion of the February 24, 2010 judgment of the trial court ordering the co-trustees ofithe family trust to pay to Helen Mashburn Penton and Tim Mashburn, each, the delayed income from the Coburn Road property in the amount of $34,005.00, and that portion of the judgment ordering that Helen Mashburn Penton and Tim Mashburn be paid the total amount of $36,602.00, plus interest.

CONCLUSION

For all of the above and foregoing reasons, the February 24, 2010 judgment of the trial court is amended and, as amended, is affirmed in part and reversed in part.

All costs of this appeal are assessed, in equal amounts, to: Timothy Mashburn; Helen Mashburn Penton; Joseph Patton Mashburn and Richard Anthony Mash-burn, in their capacities as the co-trustees of the Mashburn Family Trust; and Joseph Patton Mashburn and Donald J. Mashburn, in the capacities as the managing co-trustees of the Jack and Sadie Pugh Mashburn Marital Trust.

AMENDED, AND AS AMENDED, AFFIRMED IN PART; REVERSED IN PART.

GAIDRY, J., concurs in part and dissents in part with reason.

CARTER, C.J., concurs.

GAIDRY, J.,

concurring in part and dissenting in part.

|TI concur in part and dissent in part, for the reasons set forth in my concurring and dissenting opinion in the companion case of In re Mashburn Marital Trusts, 10-0278 (La.App. 1st Cir.12/22/10), 52 So.3d 1136, decided this date.

      .The record before us does not contain the motion to compel the distribution of the 2007 income filed by Helen Mashburn Penton. However, there is no dispute that Helen Mashburn Penton joined Tim Mashburn in this motion.

      . With regard to this ruling, the co-trustees of the family trust filed an application for supervisory writs with this court, which was denied on April 9, 2009. See In Re Mashburn Marital Trust, 2008-1619 (La.App. 1st Cir.4/9/09) (unpublished writ action).

      . At the hearing, the trial court also considered and denied the motion for new trial with respect to the motions to compel the distribution of the 2008 income.

      . The judgment in the record actually reflects that it was signed on February 24, 2009, but this is obviously an inadvertent typographical error. The hearing in this matter was not held until August 31, 2009; therefore, the trial court could not have signed a judgment before the hearing. The notice of rendition of judgment issued by the clerk of court confirms that the judgment was signed on February 24, 2010.

      . A judgment overruling an exception is generally considered an interlocutory judgment and is not appealable. See La. C.C.P. arts. 1841 and 2083. However, in this case, we can consider the correctness of this interlocutory judgment in conjunction with the appeal of the February 24, 2010 judgment in favor of Tim Mashburn and Helen Mashburn Penton, which is a final and appealable judgment. See People of Living God v. Chantilly Corp., 251 La. 943, 947-948, 207 So.2d 752, 753 (1968).

      . See La. R.S. 9:2088.


source: Caselaw Access Project

author: WELCH, J. GAIDRY, J.,

license: Public Domain

text:
    In the Matter of the MASHBURN MARITAL TRUSTS.
    No. 2010 CA 0278.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      L. Kevin Coleman, Mandeville, LA, for Appellants, Joseph Patton Mashburn and Richard Anthony Mashburn, in Their Capacities as the Co-Trustees of the Mash-burn Family Trust and Joseph Patton Mashburn and Donald J. Mashburn, in their Capacities as Managing Co-Trustees of the Jack and Sadie Pugh Mashburn Marital Trust.
    Walter Antin, Jr., Hammond, LA, for Appellee, Timothy R. Mashburn.
    Pierre V. Miller, Metairie, LA, Pierre V. Miller, II, New Orleans, LA, for Appellee, Helen Mashburn Penton.
    Craig J. Robichaux, Mandeville, LA, for Appellee, Rita Mashburn.
    Before CARTER, C.J., and GAIDRY and WELCH, JJ.
   WELCH, J.

lain this protracted litigation, 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 Pat Mashburn and Richard A. Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust (“family trust”) appeal a trial court judgment that ordered the nine beneficiaries of the marital trust and the nine beneficiaries of the family trust to be paid equal amounts of income for the year 2008; ordered the managing co-trustees of the marital trust and the co-trustees of the family trust to disburse to Timothy R. (“Tim”) Mashburn and Helen Mashburn Penton, both of whom are beneficiaries of the marital trust and the family trust, the same sums of income that they distributed to the other beneficiaries of those trusts; and rendered judgment for those sums in favor of Tim Mashburn and Helen Mash-burn Penton and against the respective co-trustees of each trust. Tim Mashburn has answered the appeal seeking damages for frivolous appeal. For reasons that follow, we affirm in part and reverse in part the judgment of the trial court, and deny the answer to appeal.

FACTUAL AND PROCEDURAL HISTORY

John S. (“Jack”) and Sarah (“Sadie”) Pugh Mashburn had nine children: Helen Mashburn Penton, John S. Mashburn, Jr., Pat Mashburn, Don Mashburn, Michael F. Mashburn, Rita A. Mashburn, Tim Mash-burn, William T. Mashburn, and Richard Mashburn. By an authentic act executed on December 18, 1975, Jack and Sadie Mashburn created the family trust, with their nine children designated as both the income and principal beneficiaries of the trust. By an authentic act executed on June 8, 1984, Jack and Sadie Mashburn also created the marital trust. With regard to the marital trust, Jack and Sadie Mashburn 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 |3children were also designated as the principal beneficiaries.

Following the deaths of Jack and Sadie Mashburn, the two trusts they established have been the subject of extensive litigation in both the trial court and this court. See In Re Mashburn Marital Trust, 2004-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, writ denied, 2006-1034 (La.9/22/06), 937 So.2d 384 (“Mashburn Marital Trust (I) ”); In Re Mashburn Marital Trusts, 2006-0741, 2006-0742, 2005-0887 (La.App. 1st Cir.12/28/06), 951 So.2d 1136, writs denied, 2007-0403, 2007-0446 (La.4/20/07), 954 So.2d 164, 167 (“Mashburn Marital Trust (II) ”); In Re Mashburn Marital Trust, 2006-1753, 2006-1754, 2005-0887 (La.App. 1st Cir.12/28/06), 947 So.2d 852 (unpublished opinion), writ denied, 2007-0403 (La.4/20/07), 954 So.2d 164 (‘Mashburn Marital Trust (III) ”), and In Re Mashburn Marital Trust, 2008-0450 (La.App. 1st Cir.10/31/08), 994 So.2d 157 (unpublished opinion) (“Mashburn Marital Trust (TV) ”); see also In Re Mashburn Marital Trust, 2005-1343 (La.App. 1st Cir.8/8/05) (unpublished writ action); In Re Mashburn Marital Trust, 2005-1759 (La.App. 1st Cir.10/17/05) (unpublished writ action); In Re Mashburn Marital Trust, 2005-1785 (La.App. 1st Cir.10/17/05) (unpublished writ action); In Re Mashburn Marital Trust, 2008-0534 (La.App. 1st Cir.3/20/08) (unpublished unit action); In Re Mashburn Marital Trust, 2008-1619 (La.App. 1st Cir.4/9/09) (unpublished writ action).

Both the authentic act creating the family trust and the authentic act creating the marital trust settled nine separate trusts, one for the sole benefit of each of Jack and Sadie Mashburris nine children, who are the income and principal beneficiaries of their respective trusts. See Mashburn Marital Trust (II), 2006-0741 at p. 14, 951 So.2d at 1146-1147. Each of the nine trusts settled by the family trust are to be considered, managed, and administered by one trustee (or one set of co-trustees) and each of the nine trusts established in the marital trust are to |4be considered, managed, and administered by one trustee (or one set of managing co-trustees). The assets of the nine trusts established by the family trust may be commingled and managed as one and the assets of the nine trusts established by the marital trust may be commingled and managed as one. See Mashburn Marital Trust (II), 2006-0741 at pp. 14-15, 951 So.2d at 1147.

Pat Mashburn and Richard Mashburn were appointed by the court on August 19, 1997 as the co-trustees of the family trust. See Mashburn Marital Trust (II), 2006-0741 at pp. 3-4, 951 So.2d at 1139-1140. After the deaths of Jack and Sadie Mash-burn, Helen Mashburn 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 Mashburn Marital Trust (II), 2006-0741 at p. 6, 951 So.2d at 1141-1142; and Mashburn Marital Trust (I) 2004-1678 at pp. 2-3, 924 So.2d at 243-244.

All of the litigation referenced above has involved either Helen Mashburn Penton or Tim Mashburn (or both of them) against the managing co-trustees of the marital trust or the co-trustees of the family trust (or both). The present dispute involves a motion to compel the trustees to distribute the 2008 income, which was filed by Tim Mashburn on April 27, 2009. In his motion, Tim Mashburn requested an order compelling the co-trustees of the family trust to distribute to him the 2008 income from his family trust in the amount of $6,970.89 and an order compelling the managing co-trustees of the marital trust to distribute to him the 2008 income from his marital trust in the amount of $1,736.00. Tim Mashburn also asserted, and it was undisputed, that seven of his siblings had been distributed their shares of income from their respective family trusts and marital trusts, but that he had not received his share of income, which had been divided and distributed to his seven | .^siblings. Helen Mashburn Penton also did not receive her share of income from her marital trust or her family trust, and also claimed that her share of income from both trusts was divided and distributed to her seven siblings. Therefore, on May 13, 2009, Helen Mashburn Penton filed a similar motion to compel the distribution of her 2008 income from both trusts.

A hearing on both motions was held on May 18, 2009. At the hearing, it was undisputed that neither the co-trustees of the family trust nor the managing co-trustees of the marital trust had distributed any income from those trusts to either Tim Mashburn or Helen Mashburn Penton for 2008, and evidently, only a partial distribution was made to them in 2007. The co-trustees of the family trust and the managing co-trustees of the marital trust maintained that Tim Mashburn and Helen Mashburn Penton were not entitled to be distributed income from either trust for three reasons, with only one of those reasons being applicable to Helen Mashburn Penton.

First, the co-trustees of the family trust and the managing co-trustees of the marital trust determined that, after the above-cited decisions of this court became final, since Helen Mashburn Penton and Tim Mashburn had litigated for their own, individual benefit, rather than for the benefit of all the beneficiaries of the trusts, the litigation expenses incurred by the co-trustees of the family trust and the managing co-trustees of the marital trust would be allotted on a pro rata basis to the individual trusts of Helen Mashburn Penton and Tim Mashburn.

Second, the managing co-trustees of the marital trust determined that since lfiTim Mashburn had received principal distributions from his marital trust that he was not entitled to receive, see Mashburn Marital Trust (II), 2006-0741 at p. 13, 951 So.2d at 1146, and had not returned or paid back those distributions, there was little or no principal remaining in Tim Mashburn’s marital trust to produce income to be distributed to him.

Finally, the co-trustees of the family trust determined that Tim Mashburn had caused a significant loss to the family trust, which loss should be assessed to Tim Mashburn’s family trust. Specifically, Tim Mashburn had filed a notice of lis pendens in the mortgage records of Tangipahoa Parish affecting immovable property owned by the family trust, which later affected the co-trustees’ ability to obtain a construction loan related to that immovable property. Although the notice of lis pendens was eventually cancelled, there was a delay in a construction loan being issued (and in the commencement of the construction itself), which resulted in an increase in the cost of the construction due to that delay. Since the co-trustees of the family trust believed that the lis pendens was improper, they determined that the increase in the cost of the construction due to the delay caused by the lis pendens would be assessed to Tim Mashburris family trust.

Therefore, the managing co-trustees of the marital trust and the co-trustees of the family trust contended that after a full pro rata portion of the legal expenses was allotted to the family trust and marital trust of both Helen Mashburn Penton and Tim Mashburn, the amount of principal still owed to Tim Mashburris marital trust was considered, and the family trust construction delay losses assessed to Tim Mashburris family trust, the result was that neither Helen Mashburn Pentoris nor Tim Mashburris marital or family trust had any income to distribute.

After the hearing, the trial court issued written reasons determining that

an arbitrary and unilateral allocation of litigation expenses incurred by nine separate [f|amily [tjrusts and ... [mjarital [t]rust[s], for a total of 18 trust[s] is [not] authorized. Until this [c]ourt, or some higher 17[c]ourt determines the allocation of costs and the reasonableness of the attorney’s fees, such arbitrary and unilateral charging of these costs to two individual beneficiaries of four individual trusts, is unwarranted. []
Therefore, ... the [trustees hereby are ordered to distribute to Helen Mash-burn Penton and [Tim] Mashburn the same sum that was paid to the other trustees ... [and] that the nine beneficiaries be paid an equal sum for the year 2008.

On June 17, 2009, the trial court signed a written judgment ordering the nine beneficiaries of the marital trust and the nine beneficiaries of the family trust to be paid equal amounts of income for the year 2008; ordering the managing co-trustees of the marital trust and the co-trustees of the family trust to disburse to Tim Mashburn and Helen Mashburn Penton the same sums of income that they distributed to the other beneficiaries of those trusts; rendering judgment in favor of Tim Mashburn and Helen Mashburn Penton against the co-trustees of the family trust in the amount of $6,970.89 each; and rendering judgment in favor of Tim Mashburn and Helen Mashburn Penton against the managing co-trustees of the marital trust in the amount of $1,736.00 each. From this judgment the managing co-trustees of the marital trust and the co-trustees of the family trust have appealed, asserting that the trial court erred in finding that the managing co-trustees of the marital trust and the co-trustees of the family trust lacked the authority to allocate costs and expenses to the various beneficiaries of the trust in accordance with which beneficiary caused such expenses to be incurred. Tim Mashburn has answered the appeal seeking damages for frivolous appeal.

LAW AND DISCUSSION

Paragraph 1.3 of the family trust provides that “[t]he property delivered to|8the 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.” Additionally, paragraph 1.4 of the family trust provides that “[a]ll of the income of each Trust shall be paid to the beneficiary of that Trust annually, or such more frequent intervals as the Trustee may see fit.”

Paragraph 4.05 of the marital trust provides that

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.

As previously noted, the co-trustees of the family trust and the managing co-trustees of the marital trust contend that Tim Mashburn and Helen Mashburn Pen-ton were not entitled to be distributed the 2008 income from their respective family trust and marital trust for three reasons, two of which applied solely to Tim Mash-burn. Therefore, we will separately address each of these reasons.

Allocation of Litigation Expenses

At the outset, we recognize the well settled principle that attorney fees are not recoverable unless expressly authorized by statute or by a contract between the parties. See Huddleston v. Bossier Bank and Trust Co., 475 So.2d 1082, 1085 (La.1985); Tassin v. Golden Rule Ins. Co., 94-0362, p. 14 (La.App. 1st Cir.12/22/94), 649 So.2d 1050, 1058. However, the issue herein is not the recovery of attorney fees by the managing co-trustees of the marital trust and the co-trustees of the family trust from Tim Mashburn and Helen Mashburn Penton, but rather, whether litigation expenses, including attorney fees, that were incurred by the managing co-trustees of the marital trust and the co-trustees of the family in the 19administration of the trusts, can be allocated to and deducted solely from the income of Tim Mashburn and Helen Mashburn Penton.

In determining whether the co-trustees of the family trust and managing co-trustees of the marital trust were authorized to allocate those expenses to Tim Mashburn and Helen Mashburn Penton, we must look to the specific provisions of the trust instruments. See La. R.S. 9:2061 (providing that the nature and extent of the duties and powers of the trustee are determined from the provisions of the trust instrument, except as otherwise expressly provided in the Louisiana Trust Code).

Paragraph 6.1 of the family trust instrument provides:

The Trastee shall have all of the powers that may be exercised by the Trustee under Louisiana law, including, but not limited to, those powers that Trustees are permitted to exercise under the provisions of the Louisiana Trust Code, Chapter 1, Part 5, and such additional powers as may hereinafter be permitted Trustees by Louisiana law.
Additionally, Paragraph 6.11 provides:
The Trustee shall have in the ... administration of the ... property forming the subject of this Trust, the widest latitude and authority permitted by Louisiana law.

Section VII of the marital trust provides:

The Trustees are granted all of the authority which may be conferred on Trustees by the Louisiana Trust Code. Such authority shall include, but not limited to, the following powers:
7.01 To determine what is principal and what is income with respect to all receipts and disbursements .... to determine the proper basis for any transactions between the trusts administered by it and to allocate to each trust its proportionate part of said income, receipts and expenses; and to partite and to distribute property of the trust in kind or in undivided interests, and to determine the value of such property.

Thus, both trust instruments provide the trustees with the maximum powers allowable under Louisiana law. However, the maximum powers allowable under Louisiana law are not synonymous with unlimited powers. Louisiana law provides that a trustee shall administer the trust solely in the interest of the beneficiary; | inwhen there is more than one beneficiary, a trustee shall administer the trust impartially, based on what is fair and reasonable to all of the beneficiaries, except to the extent that the trust instrument manifests an intention that the trustee shall or may favor one or more of the beneficiaries. La. R.S. 9:2082. The trustee shall administer the trust as a prudent person. La. R.S. 9:2090. The trustee shall also take, keep control of, and preserve trust property. La. R.S. 9:2091. The trustee is also commanded to defend actions that may result in a loss to the trust estate, unless doing so would not be reasonable. La. R.S. 9:2093.

The powers of the trustee are those conferred upon the trustee by the trust instrument or those that are necessary or appropriate to carry out the purposes of the trust (and not forbidden by the trust instrument). La. R.S. 9:2111. If discretion is conferred upon a trustee with respect to the exercise of a power, its exercise of discretion shall not be subject to control by the court, except to prevent an abuse of discretion by a trustee. La. R.S. 9:2115. A trustee may incur expenses necessary to carry out the purposes of the trust, not forbidden by the trust instrument, and other expenses authorized by the provisions of the trust instrument. La. R.S. 9:2117. The trustee has the right to be indemnified from trust property for all properly incurred expenses. La. R.S. 9:2191. The trustee is also authorized to select an attorney to represent the trust. La. R.S. 9:2241.

Based on these provisions, there is no dispute that the co-trustees of the family trust and the managing co-trustees of the marital trust were authorized to defend the trust in these protracted proceedings, to incur litigation expenses, including attorney fees, and to pay or be indemnified for those expenses from trust funds, as such expenses were necessary in the administration of the trust.

However, the co-trustees of the family trust and managing co-trustees of the marital trust contend that since Tim Mashburn and Helen Mashburn Penton have 11 instigated these proceedings and have been litigating over the years for their own interests, and not in the interests of the other beneficiaries, the litigation expenses incurred by the co-trustees of the family trust and by the managing co-trustees of the marital trust in responding to that litigation should be allocated to Tim Mashburn and Helen Mashburn Pen-ton’s respective family and marital trusts under La. R.S. 9:2141, which provides that “[a] trust shall be administered with due regard to the respective interests of the beneficiaries in the allocation of receipts and expenditures.” They further contend that to allocate those expenses equally among all of the beneficiaries of those trusts would be unfair, unreasonable, and without due regal'd to the interests of the other seven beneficiaries of the trust. Additionally, the co-trustees of the family trust and the managing co-trustees of the marital trust contend that the Louisiana Supreme Court’s holding in Hughes v. Burguieres, 276 So.2d 267 (La.1973) supports their position on this issue.

First, we find that La. R.S. 9:2141 is not applicable to the resolution of this issue. Louisiana Revised Statutes 9:2141 is entitled “General rule” and is the first statute contained in subpart D, “Allocation to Income and Principal,” of the Louisiana Trust Code. A cursory review of the statutes following the general rule, ie., La. R.S. 9:2142-9:2157, indicates that the allocation of receipts and expenditures referenced in La. R.S. 9:2141 is an allocation between income and principal, not an allocation among beneficiaries. Therefore, this provision concerns the allocation of expenditures, such as the litigation expenses at issue, between income or principal, not the allocation of those expenses to particular beneficiaries.

However, we do find Hughes to be instructive on this issue. In Hughes, a suit for declaratory judgment was filed by Abner Hughes, the trustee of 26 trusts provided in the last will and testament of Jules Burguieres, against the beneficiaries of those trusts. After Jules Burguieres died and his will was probated, 26 separate Intrusts were set up, each encompassing l/26th of the decedent’s residual estate. The decedent’s will contained a proviso that the bequest to any legatee named in the will was revoked if the legatee instituted any suit making demand upon the decedent, his brothers, their estates, the estate of their deceased father, decedents will, or the management of J.M. Burguieres Company, Ltd. Hughes, 276 So.2d at 267-268.

Gregory Burguieres, one of the trust beneficiaries, sent a letter to the family corporation demanding that certain actions be taken, and thereafter, filed a stockholder’s derivative action against the corporation. The trustee then instituted the suit for declaratory judgment, seeking a determination as to whether Gregory Burguieres’s actions violated the conditions of the will so as to warrant forfeiture of his trust. The trial court determined that Gregory Burguieres did not violate the proscriptive provisions of the decedent’s will by the institution of a suit against the corporation. It concluded, however, that since Gregory Burguieres’s actions were solely responsible for causing the suit for declaratory judgment, he alone should bear the court costs and attorney fees of $1,500.00 that were incurred by the trustee. The trial court ordered the costs to be deducted from the income of the trust administered for the benefit of Gregory Burguieres. Hughes, 276 So.2d at 268. An appeal was taken by Gregory Burguieres, and this court affirmed the trial court’s ruling easting him for court costs and attorney fees. However, the supreme court granted writs as to the issue of who should pay the court costs and attorney fees incurred by the trustee in the suit for declaratory judgment. Hughes, 276 So.2d at 269.

The supreme court found that the trustee’s actions in filing the suit for declaratory judgment were justified, given that Gregory Burguieres’s derivative action presented a question of possible forfeiture of rights as a trust beneficiary under the conditions of the decedent’s will. The supreme court found no doubt that |1sthe trustee was entitled to have the court costs and attorney fees paid. The issue to be determined was whether those expenses were to be charged to Gregory Burgui-eres’s trust or whether the expenses should be prorated and charged to all 26 trusts provided by the decedent’s will. Hughes, 276 So.2d at 269.

The supreme court noted:

The 26 trusts provided in the testament are all contingent upon the same assets and are managed by the same trustee. The trusts are all subject to the prescriptive conditions of the testament, and each bears a direct relationship to the others with regard to any action taken in violation of those conditions. In the petition in this suit the trustee recognized his duty to institute this suit on behalf of ‘the trusts’ and for the benefit of ‘all beneficiaries’. The fiduciary obligations owed by the trustee are the same for each beneficiary.
[In finding that the 26 trusts should be treated as a single trust, the appellate court stated:] ‘By the terms of the testator’s will, we are here concerned with the novel situation of [26] separate and individual, but nonetheless related trusts, under the management and control of a single trustee. The will also proscribes certain designated actions which, if committed by any beneficiary, will directly affect not only his own interests, but also those of the beneficiaries of the remaining [25] trusts. To this extent, each individual trust bears a relationship to and has an inchoate interest in every other trust. To this degree, the individual trusts may in effect be deemed one. Equally certain is the fact that it is the obligation of the trustee to protect the interest of each individual beneficiary in the event of a suspected violation of the terms of the decedent’s will by one or more beneficiaries.’

Hughes, 276 So.2d at 270.

Thus, in Hughes, the supreme court determined that because the trustee had instituted suit for the benefit of all of 26 trusts (or all 26 beneficiaries), the attorney fees and court costs (or litigation expenses) incurred by the trustee should be charged to the income (and if necessary from the principal) of all 26 trusts. Hughes, 276 So.2d at 270-271. The co-trustees of the family trust and the managing co-trustees of the marital trust contend that from this holding, it follows that if litigation expenses incurred by a trustee are not incurred for the benefit of all trusts or beneficiaries, like the litigation instigated by Tim Mashburn and Helen |14Mashburn Penton, then those expenses should be allocated to the trust or beneficiary that caused those expenses to be incurred. However, we do not interpret Hughes so broadly.

The nine trusts settled by the marital trust are contingent upon the same assets and managed by the same set of co-trustees, and the nine trusts settled by the family trust are contingent upon the same assets and managed by the same set of co-trustees. While we agree with the co-trustees of the family trust and the managing co-trustees of the marital trust that Tim Mashburn and Helen Mashburn Pen-ton have litigated for their own personal benefit, rather than for the benefit of all of the trusts or beneficiaries, the co-trustees of the family trust and the managing co-trustees of the marital trust have both maintained and defended these actions in order to protect the trusts or trust property, and therefore, acted on behalf of all the tx’usts and all of the beneficiaries. Therefore, the litigation expenses incurred by the co-trustees of the family trust and the managing co-trustees of the marital trust should be assessed pro rata from the income (and if necessary from the principal) of all nine marital trusts and all nine family trusts.

Accordingly, we find that the trial court correctly determined that the co-trustees of the family trust and the managing co-_Jtrustees16 of the marital trust were not entitled to allocate litigation expenses to Tim Mashburn and Helen Mashburn Pen-ton based on the nature of the litigation to date. Since the allocation of litigation expenses was the only issue applicable to Helen Mashburn Penton, the provisions of the June 17, 2009 judgment of the trial court that ordered Helen Mashburn Pen-ton to be paid the same sums of income from the marital trust and the family trust that the other seven beneficiaries had received and rendered judgment in favor of Helen Mashburn Penton against the managing co-trustees of the marital trust in the amount of $1,736.00, and against the co-trustees of the family trust in the amount of $6,970.89, are affirmed.

Principal Payments from the Marital Trust to Tim Mashburn

Prior to the appeal in Mashburn Marital Trust (II), the trial court ordered the managing co-trustees of the marital trust to distribute the sum of $2,000.00 per month to Tim Mashburn from the income of his marital trust, and if necessary, from its principal. Mashburn Marital Trust (II), 2006-0741 at p. 2, 951 So.2d at 1139. In Mashburn Marital Trust (II), 2006-0741 at pp. 12-13, 951 So.2d at 1145-1146, we reversed the judgment of the trial court, concluding that Tim Mashburn was not entitled to distributions from the principal of his marital trust. However, prior to the managing co-trustees of the marital trust perfecting a suspensive appeal of the trial court’s judgment ordering the monthly payment, distributions from the principal of Tim Mashburn’s marital trust were made to him.

The managing co-trustees of the marital trust assert, and Tim Mashburn does not dispute, that the principal distributions made to Tim Mashburn from his marital trust total $41,848.00 and that Tim Mash-burn has not returned or paid that sum |1ñback to the principal of his marital trust. Thus, the managing co-trustees of the marital trust claimed that Tim Mashburn was not entitled to be distributed any income for 2008 from his marital trust because there was no principal remaining in Tim Mashburn’s marital trust to produce income and because Tim Mashburn owed the principal back.

Louisiana Revised Statutes 9:2195 provides “If a trustee makes an advance or loan of trust money to a beneficiary, the beneficiary’s interest is subject to a charge for the repayment of the amount advanced or lent.” Since Tim Mashburn received an advance (that he was not entitled to) of principal from his marital trust in the amount of $41,848.00, Tim Mashburn’s interest in the marital trust is subject to a charge for repayment of that amount. Tim Mashburn’s interest in the marital trust is as income beneficiary and principal beneficiary. Therefore, the managing co-trustees of the marital trust can retain any amounts payable to Tim Mashburn from income or principal until the amount of the advance is paid back. Accordingly, we find that the managing co-trustees of the marital trust are authorized to retain the income that Tim Mashburn is entitled to receive (from the marital trust) until the amount of the principal advanced has been repaid.

However, as noted herein, the trial court did not rule on whether Tim Mashburn owed the principal distributions that he improperly received back to his marital trust, and in fact, never mentioned that Tim Mashburn had received such distributions. Rather, the trial court ruled that Tim Mashburn was entitled to be paid the same, equal amount of income for 2008 from his marital trust that the other beneficiaries were entitled to receive from their marital trusts and rendered judgment for that amount ($1,736.00). Since we have determined that the managing co-trustees of the marital trust were authorized to retain the income to be distributed to Tim Mashburn until the amount of the principal previously advanced has been paid back, we must conclude that the trial court erred in ordering that Tim 117Mashburn was entitled to receive the same income for 2008 from the marital trust as the other beneficiaries had received and in rendering judgment in favor of Tim Mashburn and against the managing co-trustees of the marital trust in the amount of $1,736.00. Accordingly, we reverse these portions of the judgment of the trial court.

Notice of Lis Pendens filed by Tim Mash-bum

On August 3, 2005, Tim Mashburn filed a notice of lis pendens in the mortgage records of Tangipahoa Parish (filing number 69,8417 recorded in book 1380, page 799) that affected four parcels of immovable property, including one owned by the family trust and referred to by the parties as the “Gateway Shopping Center” in Ponchatoula, Louisiana. The co-trustees of the family trust were not aware that the notice of lis pendens had been filed until it was discovered during a title search by the bank that was issuing a construction loan to the co-trustees for making improvements to the Gateway Shopping Center. Since the construction loan was to be secured by the Gateway Shopping Center property, the bank refused to issue the construction loan until the notice of lis pendens was removed. Tim Mashburn refused to voluntarily remove the notice of lis pendens, citing his pending claim for the distribution of income or “retained earnings” from the family trust. See Mashburn Marital Trust (IV), 2008-0450 at pp. 1-3. Therefore, the co-trustees of the family trust had to file a motion in these proceeding requesting the removal of the notice of lis pendens.

After a hearing on the matter, the trial court granted the motion. However, the delay between the discovery of the notice and its actual removal or cancellation from the mortgage record, resulted in a delay in issuing the construction loan to the co-trustees, which in turn delayed the construction of the improvements on the Gateway Shopping Center. According to the co-trustees, the delay in construction caused an approximate $178,000.00 increase in the cost of the construction. The 11sco-trustees of the family trust asserted that while the propriety of the initial filing of the notice of lis pendens was questionable, Tim Mashburn’s refusal to voluntarily remove the notice was clearly improper once judgment had been rendered against his claims in Mashburn Marital Trust (TV). Therefore, the co-trustees contended that the $178,000.00 increase in construction costs should be assessed to Tim Mashburn’s family trust.

First, we can find no authority that allows a trustee to assess an increased cost or a potential loss to a beneficiary. Although the co-trustees of the family trust contend that their actions are authorized by La. R.S. 9:2141, we disagree with their interpretation of this statute. Louisiana Revised Statutes 9:2141 requires that the trust be administered (by the trustee) with due regard to interests of the beneficiaries in the allocation of “receipts” and “expenditures” to principal or income. Although the entire cost of construction on the Gateway Shopping Center was an “expenditure” to be allocated, only the expenditure itself is authorized to be allocated — not the amount by which the expenditure was increased. Thus, the increase in the cost of construction due to a delay in the construction loan was not a “receipt” or “expenditure” to be allocated to principal or income under La. R.S. 9:2141.

Furthermore, if there was a $178,000.00 increase in the cost of construction due to a delay in the construction loan, that amount constitutes a financial loss to or a damage sustained by the trust. If this loss or damage was through the fault of or caused by Tim Mashburn’s actions — either in initially filing the notice of lis pendens or in subsequently refusing to remove it— then the co-trustees remedy is an action for damages against Tim Mashburn for the wrongful filing of a notice of lis pendens. See La. C.C. art. 2315; La. R.S. 9:2231. However, like any other claim for damages, there must be a determination of liability and damages, and until there is such a determination, the claim for damages is unliquidated. Since |13there has been no determination — judicial or otherwise — of Tim Mashburn’s liability and/or the damage sustained by the trust, the claim of the co-trustees of the family trust against Tim Mashburn for the wrongful filing of the notice lis pendens is an unliq-uidated claim for damages.

Louisiana law does not permit the use of an unliquidated claim for damages to offset a liquidated claim. See American Bank v. Saxena 553 So.2d 836, 844-46 (La.1989). As such, the co-trustees of the family trust cannot use their unliquidated claim for damages against Tim Mashburn to offset the income Tim Mashburn is entitled to be distributed from his family trust on an annual basis. Therefore, we find that the trial court’s implicit rejection of this claim of co-trustees of the family trust was correct.

Accordingly, the provisions of the June 17, 2009 judgment of the trial court that ordered Tim Mashburn to be paid the same sums of income from the family trust as the other beneficiaries received and that rendered judgment in favor of Tim Mash-burn against the co-trustees of the family trust in the amount of $6,970.89 are affirmed.

ANSWER TO APPEAL

Tim Mashburn has filed an answer to appeal seeking damages for frivolous appeal pursuant to La. C.C.P. art. 2133 and 2164 and Uniform Rules — Courts of Appeal, Rule 2-19. In order to assess damages for a frivolous appeal, it must appear that the appeal is taken solely for the purpose of delay or that counsel does not seriously believe in the view of the law that he advocates. Guarantee Systems Construction & Restoration, Inc. v. Anthony, 97-1877, p. 13 (La.App. 1st Cir.9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. Because we have found merit to this appeal and because we do not find that this appeal was taken solely for the purpose of delay or harassment or that counsel for the managing co-trustees of the marital trust and the co-trustees of the family trust 120did not seriously believe the position he advocated, Tim Mashburn’s request for frivolous appeal damages is denied.

CONCLUSION

For all of the above and foregoing reasons, the June 17, 2009 judgment of the trial court is affirmed insofar as it ordered that Tim Mashburn and Helen Mashburn Penton were entitled to receive the same sums of income for 2008 from their family trust as the other seven beneficiaries; rendered judgment in favor of Tim Mashburn and against the co-trustees of the family trust in the amount of $6,970.89; rendered judgment in favor of Helen Mashburn Penton and against the co-trustees of the family trust in the amount of $6,970.89; ordered that Helen Mashburn Penton was entitled to receive the same sum of income for 2008 from her marital trust as the other seven beneficiaries; and rendered judgment in favor of Helen Mashburn Penton and against the managing co-trustees of the marital trust in the amount of $1,736.00. The June 17, 2009 judgment of the trial court is reversed insofar as it ordered that Tim Mashburn was entitled to receive the same sum of income for 2008 from his marital trust and rendered judgment in favor of Tim Mashburn and against the managing co-trustees of the marital trust in the amount of $1,736.00. Tim Mashburn’s request for damages for frivolous appeal is denied.

All costs of this appeal are assessed, in equal amounts, to: Timothy Mashburn; Joseph Patton Mashburn and Richard Anthony Mashburn, in their capacities as the co-trustees of the Mashburn Family Trust; and Joseph Patton Mashburn and Donald J. Mashburn, in their capacities as the managing co-trustees of the Jack and Sadie Pugh Mashburn Marital Trust.

AFFIRMED IN PART; REVERSED IN PART; ANSWER TO APPEAL DENIED.

GAIDRY, J., concurs in part and dissents in part with reasons.

CARTER C.J. concurs.

GAIDRY, J.,

concurring in part and dissenting in part.

hi concur with the majority’s conclusions, with one exception. I disagree with the trial court’s conclusion that the co-trustees’ allocation or assessment of the litigation costs and expenses, including attorney fees, attributable to the litigation instigated by Tim Mashburn and Helen Mashburn Penton, to those beneficiaries’ trusts was> “arbitrary and unilateral.” I accordingly dissent in part from that portion of the majority opinion affirming the trial court’s ruling that the co-trustees could not assess the litigation costs and expenses against those beneficiaries’ trusts.

While it may be true, as the majority suggests, that the “allocation of receipts and expenditures” in La. R.S. 9:2141 refers to the allocation of those items between principal and income of the trusts, I do not read that statute as strictly limiting the co-trustees’ powers of allocation to that limited purpose. The co-trustees had the authority to make a good-faith assessment or allocation of litigation costs and expenses on an unequal basis among the beneficiaries of the trusts, consistent with their “necessary or appropriate” powers under La. R.S. 9:2111 and the broad discretion conferred upon them by La. R.S. 9:2115 and the unambiguous language of the trust instruments. [ ¡.Considering the circumstances of this matter, I conclude that the co-trustees’ actions in the foregoing respect accorded with an impartial administration of all of the trusts, and that their assessment of the litigation costs and expenses was “fair and reasonable to all of the beneficiaries” under La. R.S. 9:2082 and both “prudent” and “reasonable” under the standards of La. R.S. 9:2090. While the co-trustees’ actions in defending the litigation might be said to generally inure to the benefit of all of the trusts, for purposes of protecting and conserving the trusts’ common property and income, the unmeritorious litigation instituted by Tim Mashburn and Helen Mashburn Penton in their own individual interests served to indirectly deplete the common trust assets. It is only fair and equitable that those beneficiaries’ interests should bear more of the burden of the trusts’ litigation costs and expenses, and the co-trustees’ actions to that end are not inconsistent with their fiduciary duties to them. This is not a case where the courts should interfere with the considered exercise of discretion by a trustee. See La. R.S. 9:2115.

      . Helen Mashburn Penton’s motion was not set for hearing on May 18, 2009 and was not served on either the managing co-trustees of the marital trust or on the co-trustees of the family trust. Nevertheless, the trial court addressed her motion. Although the managing co-trustees of the marital trust and the co-trustees of the family trust assigned error to the trial court’s action in this regard, at oral argument, this objection was withdrawn in the interest of judicial efficiency. Accordingly, in this appeal, we will address the motions of both Tim Mashburn and Helen Mashburn Penton.

      . A motion to compel the distribution of the 2007 income is one of the issues raised in the companion case also rendered this date, In Re Mashburn Marital Trust, 2010-1104 (La.App. 1st Cir.12/22/10), ("Mashburn Marital Trust (VI) ").

      . The trial court’s reasons for judgment were silent with respect to the claim of managing co-trustees of the marital trust concerning the principal distributions Tim Mashburn improperly received from the marital trust and the claim of the co-trustees of the family trust concerning the loss sustained by the family trust due to the notice of Us pendens. Silence in a judgment as to any issue or claim that is placed before the trial court is deemed a rejection of that claim or demand. Robertson v. Sun Life Financial, 2009-2275, p. 5 (La.App. 1st Cir.6/11/10), 40 So.3d 507, 510. Therefore, we conclude that the trial court denied those claims.

      . In this case, neither the marital trust instrument nor the family trust instrument manifests the intent that the trustee shall or may favor one or more of the beneficiaries.

      . Tim Mashburn and Helen Mashburn Penton are already responsible for their own litigation expenses that they have incurred. See generally, Mashburn (I), 2004-1678 at pp. 10-12, 924 So.2d 248-249.

      . Although we agree that Tim Mashburn and Helen Mashburn Penton have litigated for their own benefit, there has been no finding that Tim Mashburn and Helen Mashburn Pen-ton have instigated frivolous or unfounded proceedings against the trustees in bad faith or are otherwise abusing the process of the court. If a trust beneficiary instigates an unfounded or frivolous proceeding against the trust or trustee in bad faith, the trial court may have the power to charge the reasonable and necessary fees incurred by the trustee in opposing the proceeding against that beneficiary’s share of the trust estate. See Rudnick v. Rudnick, 179 Cal.App.4th 1328, 1335, 102 Cal.Rptr.3d 493, 498; Conley v. Waite, 134 Cal.App. 505, 506, 25 P.2d 496, 496-497 (1933). Bogert, Trusts and Trustees (rev.2d ed.1981) § 802, pp. 143-144. Furthermore, although we recognize as a general rule that attorney fees are not allowed as an item of damages or costs except where authorized by statute or called for in a contract, abuse of process has been recognized as an exception to that rule. Citizens, Electors & Taxpayers of Tangipahoa Parish v. Layrisson, 449 So.2d 613, 616 (La.App. 1st Cir.1984), writ denied, 452 So.2d 170 (La.1984). Additionally, to the extent that any party files a pleading in violation of La. C.C.P. art. 863, the appropriate sanctions are available under that article. See also Matter of Alvin R. Albritton Testamentary Trust, 597 So.2d 23, 26 (1992).

      .In Mashburn Marital Trust (III), 2006-1753 at p. 3, we also determined that Tim Mash-bum was not entitled to distributions from the principal of his family trust; however, it appears that the co-trustees of the family trust perfected a suspensive appeal of that judgment prior to any distributions from the principal of Tim Mashburn's family trust being made to him.


author: MARION F. EDWARDS, Chief Judge.

text:
    Douglas STEAD and Charlotte Bremermann v. Susan SWANNER, Chandra Sekhar Korrapati, Individually and as the Administrator of the Estate of Srinivas Korrapati a/k/a “Bobby” Korrapati, Kanaka Durga Korrapati, Srinivas Korrapati a/k/a “Bobby” Korrapati, and Sri Lakshmi Properties, LLC.
    No. 10-CA-371.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2010.
    Rehearing Denied Jan. 19, 2011.

      Terry B. Loup, Morris Bart, PLC, New Orleans, LA, for Plaintiffs/Appellants.
    Thomas G. Buck, John C. Henry, David B. Parnell, Jr., Brett W. Tweedel, Blue Williams, L.L.P., Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   MARION F. EDWARDS, Chief Judge.

12Plaintiffs/appeIlants, Douglas Stead and Charlotte Bremermann, appeal the granting of a Motion for Summary Judgment in favor of defendant/appellee, Susan Swanner (“Swanner”), dismissing her from the wrongful death suit brought by appellants.

The action arises from the death of appellants’ son, Preston Taylor Stead (“Stead”), in an automobile accident following a party at Swanner’s home on January 27, 2007. At that party, alcohol was consumed by a number of underage drinkers. It was alleged that, due to his overcon-sumption of alcohol, Stead became legally intoxicated, lost control of the vehicle he was driving, and suffered a major accident, causing him to suffer injuries that ultimately resulted in his death.

In 2008, Swanner filed an Exception of No Cause of Action, arguing that she had no duty to supervise the minors at the party. The exception was denied. In 2009, the exception was reargued along with a Motion For Summary Judgment in lawhich Swanner averred, among other things, that La. R.S. 9:2798.4 applied to the case. Following a hearing, the trial court granted summary judgment in favor of Swanner, finding that La. R.S. 9:2798.4 operated to grant immunity to Swanner. The Exception of No Cause of Action was pretermitted.

In determining whether summary judgment is appropriate, appellate courts review the evidence de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.

La. 9:2798.4 reads, in pertinent part, as follows:

A. Neither the state, a state agency, or a political subdivision of the state nor any person shall be liable for damages, including those available under Civil Code Article 2315.1 or 2315.2, for injury, death, or loss of the operator of a motor vehicle, aircraft, watercraft, or vessel who:
(1) Was operating a motor vehicle, aircraft, watercraft, or vessel while his blood alcohol concentration of 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood;
B. The provisions of this Section shall not apply unless:
(1) The operator is found to be in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(l)(b), or the operator is found to be in excess of twenty-five percent negligent as a result of being under the influence of a controlled dangerous substance described in R.S 14:98(A)(l)(c); and
(2) This negligence was a contributing factor causing the damage.

In the present case, Stead’s blood alcohol was .119 percent. The petition alleged that “because of his intoxicated condition and the resulting impairment, Preston Taylor Stead lost control of the vehicle which he was operating, resulting in a violent automobile accident which caused serious injuries to and the ultimate |4death of Preston Taylor Stead.... ” On appeal, Swanner contends this allegation is a concession that Stead’s intoxication was the sole cause of the accident and, thus, the immunity of La. R.S. 9:2798.4 applies to absolve her of liability.

On review, we find that La. R.S. 9:2798.4 does not apply to the present case. The rules of statutory interpretation require that a statute’s meaning and intent is determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provisions in question which are consistent with the express terms of the statutes and with the obvious intent of the legislature in its enactment of the statutes. Where it is possible, the courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions. However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.

La. R.S. 9:2800.1 grants immunity to any seller of intoxicating beverages, or any social host, who serves alcoholic beverages to anyone over the age for lawful purchase. La. R.S. 9:2798.4 is far more general in scope, encompassing any party with whom a legally intoxicated driver is involved with in an accident. Thus, R.S. 9:2800.1 is more specifically directed to the matter at issue and is the appropriate law to be applied here.

Furthermore, a strict reading of La. R.S. 9:2798.4 leads to the conclusion that, if a plaintiff suffers a loss as the result of driving while legally intoxicated, the state or “any person” may be may be held liable for injuries if the drinker is less than 25 percent at fault but is not liable if he or she is so intoxicated that their fault exceeds 25 percent. Such a result is contrary to public policy, patently absurd, and | r,cannot have been the intent of the legislature. Because of our finding that it is inapplicable, we decline to attempt to divine legislative intent in enacting this portion of the statute.

In addition, even if La. R.S. 9:2798.4 were applicable, and we could interpret it as Swanner suggests, there must be a finding that Stead was in excess of twenty-five percent negligent as a result of a blood alcohol concentration in excess of the limits provided in R.S. 14:98(A)(l)(b). We do not construe the allegation in the petition as an admission establishing the percentage of fault. The depositions admitted in connection with the motion indicate that Stead was not necessarily a “safe” driver even when he was not drinking, that he had raced his vehicle on other occasions, and that he often drove over the speed limit, etc. Some persons stated that he did not appear to be intoxicated when he got into his car. Therefore, there are questions of fact as to whether the accident and Stead’s negligence were the result of his blood alcohol level. There is also conflicting testimony as to Swanner’s knowledge and/or acquiescence regarding the drinking that occurred in her home and even on the night of the accident. Under these circumstances, summary judgment is clearly improper.

Swanner urges that Stewart v. Daiquiri Affair, Inc. is directly on point. In that case, the First Circuit determined that a bar owner was included under those persons to be given immunity under La. R.S. 9:2798.4 and that an underage drinker can be precluded from recovering damages in a motor vehicle accident if her fault exceeds twenty-five percent as a result of a blood alcohol concentration in excess of the limits provided in the statute. In addition to finding that statute is inapplicable to the matter before us, a case from another circuit is not controlling. We further note that the plaintiff in Stewart was an eighteen-year-old bartender |fiwho drank two daiquiris after her shift ended before leaving and becoming involved in an accident. The court there noted that, although the plaintiff was underage, she was, unlike Stead, no longer a minor and had reached the full age of majority; moreover, she was old enough to obtain a job at an establishment serving alcohol. The age of eighteen is the point where society draws the line for many purposes between childhood and adulthood. Upon attaining the age of eighteen, persons are treated as adults under the law, and are accordingly assigned the responsibilities and obligations of an adult under the law. The First Circuit also found the defendant, as a licensed dispenser of alcoholic beverages, could be subject to criminal penalties for selling alcohol to underage drinkers. Stewart is not on point.

Under La. R.S. 9:2800.1, the jurisprudence has found that when a bar [or social host] serves alcohol to a minor and that minor causes damage to another because of his intoxication, La. R.S. 9:2800.1 does not immunize it from liability, nor is it absolutely liable; instead, the court must determine whether the vendor violated general negligence principles, applying the traditional duty-risk analysis. In the present instance, a duty-risk analysis under negligence principles is appropriate. The trial court erred in granting summary judgment.

Swanner answered the appeal, urging that the court erred in failing to grant dismissal based on a finding that there is no cause of action for injuries to a minor guest when the host did not provide any alcohol and had no actual knowledge of alcoholic consumption. Swanner further argues that if such a duty exists, the undisputed facts compel a conclusion that the duty had not been breached, or that any breach was a cause-in-fact of the accident.

|7La. R.S. 9:2800.1(0(2) provides immunity to a social host who lawfully occupies premises on which, in his absence and without his consent, intoxicating beverages of either high or low alcoholic content are consumed. Because Stead was a minor, a duty-risk analysis is required, making summary judgment inappropriate. Additionally, the petition averred the salient facts relevant to Swanner, Stead’s minority, intoxication, and subsequent accident and, thus, stated a cause of action.

The trial court’s judgment is reversed, and the matter is remanded for further proceedings. Costs are assessed to Swan-ner.

REVERSED AND REMANDED.

      . Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880.

      . Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131.

      . Id.

      . City of Pineville v. Am. Fed’n of State, County, and Mun. Employees, AFL-CIO, Local 3352, 00-1983 (La.6/29/01), 791 So.2d 609.

      .08-1804 (La.App. 1 Cir.2009), 20 So.3d 1041, writ denied, 09-1337 (La.10/16/09), 19 So.3d 477.

      . Id. (citing State v. Campbell, 06-0286 (La.5/21/08), 983 So.2d 810, 830, cert. denied, - U.S. -, 129 S.Ct. 607, 172 L.Ed.2d 471 (2008)).

      . Stewart, supra (citing Manuel v. State, 95-2189, p. 16 (La.3/8/96), 692 So.2d 320).

      . Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708.