THE COUNCIL OF THE CITY OF NEW ORLEANS v. EDWARD WISNER DONATION THE HONORABLE MAYOR LATOYA CANTRELL IN HER OFFICIAL CAPACITY AND AS TRUSTEE MICHAEL PENEGUY SENATOR EDWIN MURRAY MAJOR CHRIS THORNHILL AND PATRICK NORTON (2026)

This appeal is from a May 23, 2025 judgment granting partial summary judgment in favor of the plaintiff, the Council of the City of New Orleans (“City Council”) on the issues of nullity of the 2020 Ratification, Extension, Modification, and Amendment of the August 2, 1914 Donation as well as the issue of ownership of lands formerly held in the Wisner Trust. The trial court also denied motions for partial summary judgment filed by the defendants, the Wisner Board and The Salvation Army, William Porteous, and Wisner LLC. Finally, the trial court also denied the motion to adopt summary judgment filed by defendant, Michael Peneguy. For the reasons that follow, we affirm the trial court's granting of the motions for partial summary judgment in favor of the plaintiff and the denial of the motions for partial summary judgment on behalf of the defendants.

BACKGROUND

In August of 1914, Edward Wisner, donated in trust approximately 50,000 acres of land located in Jefferson Parish, St. John the Baptist Parish and Lafourche Parish to the City of New Orleans. The trust instrument was limited to a 100-year term, naming the Mayor of the City of New Orleans, or his successors in office as trustee, and Charity Hospital, Tulane University, and the Salvation Army as beneficiaries.

Subsequent to Mr. Wisner's death in 1928, his widow, Mary Wisner, and their two daughters, Elizabeth Wisner and Harriet Wisner Peneguy (the “Wisner Ladies”), filed suit to annul the trust instrument. In 1929, Thomas Semmes Walmsley (the acting mayor of the City of New Orleans), Charity Hospital, Tulane University, and the Salvation Army entered into an Act of Compromise and Settlement, which added the Wisner Ladies as beneficiaries (the “1929 Compromise”). The 1929 Compromise established the Edward Wisner Donation Advisory Committee (“Advisory Committee”). The purpose of the Advisory Committee was to represent the beneficiaries and oversee all matters related to the trust.

The trust expired in August of 2014. In re Edward Wisner Donation, 2014-0027 (La. App. 4 Cir. 9/18/14), 150 So.3d 391, writ denied, 2014-2135 (La. 2/13/15), 159 So.3d 463. Thereafter, in 2020, Mayor Cantrell and the beneficiaries entered into a Ratification, Extension, Modification and Amendment Agreement (“2020 Ratification Agreement”).

The City Council filed a petition for declaratory and injunctive relief. The petition alleged that the 2020 Ratification Agreement was an illegal disposition of public property, an impermissible modification of the trust, and an absolute nullity. The City Council sought to enjoin further distribution of trust proceeds to previous beneficiaries and enjoin the City of New Orleans from entering into new contracts without City Council approval to distribute trust proceeds during the pendency of the litigation. The Board, in turn, filed a dilatory exception of lack of procedural capacity or, alternatively, peremptory exception of no right of action.

The City Council subsequently moved for a temporary restraining order and for a preliminary injunction. The trial court denied the Board's exceptions and granted the City Council's request for a preliminary injunction. The Board Defendants and the Wisner Family Interests appealed. This Court reversed the trial court's decision, holding that the City Council was not a juridical person and lacked procedural capacity. Council of City of New Orleans v. Edward Wisner Donation, 2022-0790, 2022-0791 (La. App. 4 Cir. 6/9/23), 371 So.3d 74, rev'd, 2023-01106 (La. 3/22/24), 382 So.3d 27, 29, reh'g denied, 2023-01106 (La. 5/10/24). Thereafter, the City Council filed a writ of certiorari with the Louisiana Supreme Court, which reversed this Court's decision, holding that New Orleans's Home Rule Charter and custom established that the City Council has the procedural capacity to institute lawsuits in some instances. Council of City of New Orleans v. Donation, 2023-01106 (La. 3/22/24), 382 So.3d 27, 35, reh'g denied, 2023-01106 (La. 5/10/24), 384 So. 3d 890. On remand from the Supreme Court, this Court found that the trial court did not abuse its discretion in granting the City Council's preliminary injunction. Council of City of New Orleans v. Edward Wisner Donation, 2022-0790 (La. App. 4 Cir. 10/24/24), 409 So.3d 22, 35, writ denied, 2024-01428 (La. 2/19/25), 400 So.3d 926, and writ denied, 2024-01431 (La. 2/19/25), 400 So.3d 931.

Defendants filed respective motions for summary judgment on the issue of ownership. The City Council filed a cross-motion for partial summary judgment on ownership and on nullity of the 2020 Ratification Agreement. A hearing was held on May 20, 2025. The trial court denied Defendants’ motions for summary judgment and granted the City Council's motion for partial summary judgment on the issues of nullity of the 2020 Ratification Agreement and ownership. Defendants timely appealed the judgment.

DISCUSSION

On appeal, there are three primary issues before this Court: (1) whether the granting of the City Council's motion for partial summary judgment concerning the nullity of the 2020 Ratification Agreement was proper; (2) whether the granting of the City Council's motion for partial summary judgment on the issue of ownership of land formerly held by the Wisner Trust was correct; and (3) whether the trial court's denial of the defendants’ motions for partial summary judgment on the issue of ownership of lands formerly held by the Wisner Trust was correct.

Standard of Review

“Appellate courts review summary judgments under the de novo standard of review, using the same standard applied by the trial court in deciding the motion for summary judgment; as a result, we are not required to analyze the facts and evidence with deference to the judgment of the trial court or its reasons for judgment.” Amedee v. Aimbridge Hosp. LLC, 2020-0590, p. 3 (La. App. 4 Cir. 12/16/22), 354 So.3d 250, 252 (quoting Smith v. State, 2018-0197, p. 3 (La. App. 4 Cir. 1/9/19), 262 So.3d 977, 980). Louisiana Code of Civil Procedure Article 966(A)(2) states: “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(3) further provides: “After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.”

The mover bears the burden to prove that the mover is entitled to judgment as a matter of law, in accordance with La. C.C.P. art. 966(D)(1), as follows:

[I]f the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.

Moreover, “where cross-motions for summary judgment raise the same issues, courts generally can review the denial of a summary judgment in addressing the appeal of the granting of the cross-motion for summary judgment.” May v. Cooper/T. Smith Stevedoring Co., Inc., 2024-0272, p. 4 (La. App. 4 Cir. 6/11/25), 421 So.3d 211, 214, writ denied, 2025-00884 (La. 10/14/25), 418 So.3d 903, and writ denied, 2025-00886 (La. 10/14/25), 418 So.3d 904.

Nullity of the 2020 Ratification Agreement

Defendants contend that the 2020 Ratification Agreement constitutes a new trust and is a binding and enforceable contract for joint administration of the former trust corpus. Defendants argue that the trial court's reliance on Albritton v. Albritton, 600 So.2d 1328 (1992), is misplaced because in Albritton the Supreme Court held that a new trust that was established prior to the original trust's termination date was an absolute nullity. Defendants assert that former beneficiaries and the trustee established a new trust with former trust assets nearly six years after the original trust terminated.

In Albritton, the trust was an irrevocable testamentary spendthrift trust that was set to terminate in two stages: 1) one-half of the trust would terminate on the plaintiff's twenty-first birthday (January 23, 1973) and, 2) the other half would terminate on the plaintiff's twenty-sixth birthday (January 23, 1978). Albritton, 600 So.2d at 1330. Approximately four months prior to the termination of the first part of the trust, the plaintiff signed as settlor and beneficiary a document entitled “Extension of Trust.” Id.

The Albritton court noted “[a] contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.” Id. at 1331 (quoting La. C.C. art. 2030). In consideration of the facts and the trust instrument, the Albritton court noted “the settlor's intent was that the trust should terminate as to plaintiff upon his twenty-first and twenty-sixth birthdays. The extension of trust purports to extend the trust for plaintiff's lifetime. Clearly, this extension is contrary to the settlor's intent and acts to modify the trust.” Id. at 1332. The Albritton court further elaborated that “we do not mean to foreclose a former beneficiary from setting up a new trust with a former trust's assets after the former trust has terminated by its own provisions. At this point, the intent of the settlor of the former trust becomes irrelevant and does not bar the former beneficiary from setting up a new trust.” Id. at n. 6 (emphasis in original).

Here, it is undisputed that the trust expired on August 4, 2014. While Defendants contend that the 2020 Ratification Agreement created a new trust nearly six years after the original trust terminated, we find that this argument in unpersuasive. The record provides that the 2020 Ratification Agreement is backdated to August 3, 2014, one day before the trust was set to terminate. Moreover, the 2020 Ratification Agreement provides “the Trust will remain in trust to be owned, managed, and administered consistent with the intent and purpose of this Ratification, Extension and Amendment of the August 4, 1914 Edward Wisner Donation (the ‘Agreement’) consistent with the intent and purpose as expressed in the terms of the Trust, with such modifications as are provided in this Agreement to further those purposes.” There are numerous references in the 2020 Ratification Agreement as to the extension and amendment of the original trust. As in Albritton, back-dating the 2020 Ratification Agreement to form a new trust prior to the termination of the original trust, or to extend the trust was in violation of the settlor's intent. Accordingly, we find that the trial court was correct in granting the motion for partial summary judgment in favor of the City Council and finding the 2020 Ratification Agreement is absolutely null and void.

Ownership of the Former Trust Property

The City is the sole owner of the former Trust's land. The 1914 act of donation establishes that Edward Wisner donated the lands at issue exclusively to the City. As the trial court recognized, the “plain language of the 1914 act “leaves no room for ambiguity as to the ownership issue.” There is a “strong public policy in effectuating and protecting the settlor's intent as set forth in the trust document.” Albritton v. Albritton, 600 So.2d 1328, 1331 (La. 1992). Mr. Wisner donated “irrevocably and forever” 50,000 acres exclusively to the City of New Orleans. He conditioned the donation on lands being held in trust for 100 years and the City, in its discretion, using the revenues generated from the lands for charitable purposes; however, the only rights the non-City entities had was the possibility of receiving income during the Trust's lifetime, at the City's discretion.

In 1914, a valid donation required “an act by which the donor divests himself at present and irrevocably of the thing given in favor of the donee who accepts it.” La. C.C. art. 1465 (1870). The act itself was required to be “passed before a notary public and two witnesses.” La. C.C. art. 1536 (1870). Acceptance by the donee was required to “be made during the lifetime of the donor by a posterior and authentic act.” La. C.C. art. 1540 (1870). Edward Wisner's 1914 act of donation complies with these requirements regarding the City. In fact, the City is the only entity that made such an acceptance during Mr. Wisner's lifetime.

The 1929 Compromise did not alter property ownership. Nowhere in that document is ownership conveyed, nor could it have been. The plain language confirmed and the district court recognized that the 1929 Compromise was simply an agreement to allocate revenue derived from the Trust property during the lifetime of the Trust. Accordingly, the district court's granting of the City Council's motion for partial summary judgment regarding the issue of ownership of the former Wisner Trust lands was proper. Likewise, the district court's denial of the defendants’ motions for partial summary judgment was also correct.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court's granting of the motions for partial summary judgment filed by the plaintiff and the denial of the motions for partial summary judgment filed by the defendants.

AFFIRMED

I concur with the majority opinion to the extent that it affirms the May 23, 2025 judgment granting partial summary judgment in favor of the City Council on the issue of nullity of the 2020 Ratification agreement and denying Defendants’ motion for partial summary judgment on the issue of ownership. However, I respectfully dissent from the majority opinion in so far as it affirms the May 23, 2025 judgment granting partial summary judgment in favor of the City Council on the issue of ownership.

Ownership of Trust's Corpus

Louisiana is a relative latecomer to the trust device. Edward E. Chase Jr., 11 Louisiana Civil Law Treatise, Trusts § 1:1 (3rd Ed. 2025). The Louisiana Trust Code is a product of a gradual and deliberate evolution, as legislatures adapted a device rooted in the common law to fit Louisiana's distinct civil law framework.

Defendants argue that the City of New Orleans is not the sole owner of the trust corpus. Defendants assert that Mr. Wisner wrongfully alienated community property in the 1914 Act of Donation and the 1928 lawsuit sought to have the original trust declared null. Defendants further argue that the 1929 Compromise and 1930 Judgment was not a recognition of revenue reapportionment, but transferred forty percent of the undivided ownership rights in the trust's corpus to the Wisner Ladies.

Separately, the Milner Porteous Wall heirs argued that the trial court gave little or no consideration to the “head and master” rule. The Milner Porteous Wall heirs further argue that the trial court improperly centered its analysis on Mr. Wisner's purported intent at the time he executed the 1914 Act of Donation, while failing to address that he unlawfully conveyed immovable community property without his wife's consent.

Conversely, the City Council contends that the 1929 Compromise can be interpreted to support the conclusion that the City of New Orleans is the sole owner because the 1929 Compromise is an allocation of income, not a vesting of ownership rights.¹

While the majority concludes that the 1914 Act of Donation conclusively established the City as the sole owner of the trust corpus, I find that the threshold inquiry is whether Mr. Wisner possessed the legal authority to gratuitously donate immovable community property without his wife's consent under the “head and master” rule then in effect. The majority treats the 1929 agreement as merely a reapportionment of beneficiary interests, but fails to consider that if the original donation was legally infirm under former Article 2404, then the subsequent 1929 Compromise and 1930 Judgment may reflect not merely an allocation of income, but a recognition and resolution of competing ownership claims. Because that issue remains genuinely disputed, summary judgment on ownership was improper.

Head and Master Rule

The “head and master” rule was a matrimonial regime doctrine that designated the husband as the sole manager of community property between spouses, not an employment or tort liability principle. This rule existed until 1979, when it was legislatively abolished and replaced with an equal management system for marital property. Andrea Carroll, Bradford H. Felder, & Richard D. Moreno, 16 La. Civ. L. Treatise, Matrimonial Regimes § 5:1 (5th ed. 2026).

Prior to its repeal and during Mr. and Mrs. Wisner's marriage, La. C.C. art. 2404 provided:

The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife.

He can make no conveyance inter vivos, by a gratuitous title, of the immovables of the community, nor of the whole, or of a quota of the movables, unless it be for the establishment of the children of the marriage.

Nevertheless[,] he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons.

But if it should be proved that the husband has sold the common property, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the property, on her satisfactorily proving the fraud.

La. C.C. art. 2404 (repealed by 1979 La. Acts, No. 709).

Thus, if the property placed into trust by the 1914 Act of Donation constituted community immovable property, Mr. Wisner lacked legal authority to gratuitously alienate that property without Mrs. Wisner's consent. That issue bears directly on whether the City ever acquired exclusive ownership of the trust corpus. See Bister v. Menge, 21 La. Ann. 216, 217 (1869) (noting that Article 2373, the former article to 2404 obviously limited “the power of the husband to dispose of the real estate of the community to acts of alienation by sale or otherwise, where an equivalent in value is impliedly received for the community property disposed of”).

Given the “head and master” rule in effect at the time, the 1928 lawsuit filed by the Wisner ladies seeking to have the original trust declared null, along with the ambiguous language in the 1929 Compromise and 1930 Judgment, creates a genuine issue of fact regarding the parties’ intent.

The very existence of the 1928 litigation seeking to nullify the original trust instrument demonstrates that ownership of the trust corpus was not historically treated as settled. Rather, the litigation itself reflects a live dispute over whether the original donation validly divested the marital community of ownership rights.

Here, the 1930 Judgment, which memorialized the 1929 Compromise, provided that the parties to the agreement recognized, acknowledged, and declared, that the Wisner Ladies were beneficiaries under the 1914 Act of Donation, to the extent to aggregate for the forty percent of “the rights, interests, revenues and profits ․ derived from said trust estate and of the proceeds of the trust estate when and if sold under the provisions established by said act of donation, and as entitled to the same relative rights that all other beneficiaries thereunder may have by virtue of said act of donation ․” The 1929 Compromise further provided that it was entered “to readjust, clarify and definitely fix the interests of the respective beneficiaries in and under said trust”. It further declared and agreed that those interests “are and shall be forever” fixed such that the Wisner Ladies hold a forty percent interest in the trust estate.

Interpretation of a contract is the determination of the common intent of the parties. See La. C. C. art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” See La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning; words of art and technical terms must be given their technical meaning when the contract involves a technical matter. See La. C.C. art. 2047. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” See La. C.C. art. 2050. The determination as to whether a contract is clear or ambiguous is a question of law. Green ex rel. Peterson v. Johnson, 2014-0292, p. 4 (La. 10/15/14), 149 So.3d 766, 771.

Review of the May 20, 2025 hearing transcript reveals that the trial court itself expressed uncertainty as to whether the 1929 Compromise merely adjusted beneficiary distributions or instead reformed ownership interests within the trust. We must remember that the 1929 Compromise is a contract. These unresolved questions underscore that reasonable minds could differ as to the legal effect of the compromise and judgment, precluding summary judgment. See Campbell v. Melton, 2001-2578 (La. 5/14/02), 817 So. 2d 69, 75 (noting “[a] contract is considered ambiguous on the issue of intent when either it lacks a provision bearing on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed.)

The trial court provided that “it's clearly an agreement. But the question is, does it․ roll into the trust? And that's ․ what I am trying to reconcile ․.” The trial court further stated as follows:

but the question is ․ was that a reformation of the trust? And I've had that issue throughout all of this litigation, is, can you reform a trust to add a beneficiary pursuant -- the [c]ourt basically is reforming the trust, modifying, call it what you will, but that's what it is.

Now, I agree with you potentially that the 1930 judgment, pursuant to the [19]29 agreement․ is law of the case at this point, but the question is in what form is it or how does it work? And [counsel's] issue, and that's an existential question, who owns the property? So that's all the things that I am pondering here.

Because the validity of the original donation is in question, the effect of former Article 2404, and the legal significance of the 1929 Compromise and 1930 Judgment all remain genuinely disputed, ownership of the trust corpus cannot be resolved as a matter of law on summary judgment. As such, I do not find that the City Council was entitled to summary judgment as a matter of law.

I would reverse the trial court's grant of partial summary judgment in favor of the City Council on the issue of ownership and remand for further proceedings.

FOOTNOTES

1.   Louisiana Revised Statute 9:1731 establishes that a trust creates a “relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.” It is further elaborated in La. R.S. 9:1961 that a settlor may allocate to a beneficiary of income a portion of income, and any income not allocated to an income beneficiary shall be allocated to principal.

Judge Daniel L. Dysart

JENKINS, J., CONCURS IN PART AND DISSENTS IN PART WITH REASONS BROWN, J., CONCURS IN THE RESULT