The defendant, Leo A. Miller Jr. ("Leo"), appeals a judgment removing him as trustee of the Leo A. Miller Jr. and Dianne W. Miller Family Trust ("the trust"). For the reasons expressed, we affirm.
Factual and procedural background
Dianne Miller, who is Leo's wife, formed the trust in late 1989, by Act of Trust designating her as the sole settlor.
At some point, Dianne and Leo divorced. In July 1993 they executed a property settlement which provided that Dianne would resign as co-trustee of the trust and officer of the corporations, so the "trust and corporations will hereafter be administered solely by Leo A. Miller Jr." On the same date, Dianne executed an act of resignation stating that in accordance with the settlement, Dianne resigned as trustee, "it being the intent of the parties that [Dianne] shall hereafter have no further involvement or relationship to said trust whatsoever."
On March 1, 2001, by letter from her attorney, Dianne advised Leo that she was removing him as trustee pursuant to Act of Trust ¶ 8-11. She also instructed him to deliver all trust documents. Leo, who is an attorney, refused on grounds that Dianne had "relinquished any relationship with the trust in 1993." Leo also rejected a subsequent demand letter.
Dianne filed the instant suit on April 24, 2001, demanding Leo's removal as trustee and the return of all trust property and documents. Hearing on the rule was set for June 20.
On June 19, Leo moved for a continuance, urging that the parties were still negotiating a final settlement of all claims and he needed additional time to research
The hearing occurred on July 19. The only witness to testify was Dianne, who stated that she wished to exercise her rights as settlor of the trust. When Leo began to cross examine her about the 1993 settlement, Dianne's counsel objected on grounds that this extrinsic act could not amend the Act of Trust. The District Court sustained the objection, citing Albritton v. Albritton, 91-2903 (La.5/26/92), 600 So.2d 1328, but allowed Leo to introduce into evidence the 1993 settlement and act of resignation. The court then rendered judgment removing him as trustee and ordering him to turn over all trust property and documents within five days.
Leo has taken the instant appeal. He specifies eight assignments of error, but briefs only six of them. Under the circumstances, we deem the other two (numbers 5 and 8) abandoned. URCA Rule 2-12.4; Boudreaux v. State, 01-1329 (La.2/26/02), 815 So.2d 7.
Discussion—Removal of trustee
By his second, third and fourth assignments of error Leo urges the District Court erred in removing him as trustee. His principal contention is that the 1993 settlement and act of resignation clearly showed Dianne's intent to renounce her management authority over the trust, and these documents should prevail over the Act of Trust. He concedes that Albritton v. Albritton, supra, prohibits a beneficiary from extending the original term of a trust by means of a sub-trust, but argues that nothing in Albritton prevents the settlor from giving up all her rights therein. He contends, in effect, that the Act of Trust was altered by Dianne's subsequent acts. He also contends that the Act of Trust is ambiguous, as ¶ 8-11 conflicts with ¶ 2-3 ("It is expressly declared that Settlor reserves no right to modify, alter, amend, revoke, manage trust assets or otherwise control this trust in whole or in part at any time").
A trustee shall be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause. La. R.S. 9:1789 A. The settlor of an inter vivos trust may reserve the right to remove the trustee. Leonard Oppenheim & Sidney Pugh Ingram, 11 La. Civil Law Treatise: Trusts, § 136 (West, 1977), p. 197; see also, Martin v. Martin, 95-0466 (La.App. 4 Cir. 10/26/95), 663 So.2d 519, writ denied 95-2806 (La.1/29/96), 666 So.2d 682. The provisions of ¶ 8-11 of the Act of Trust, reserving to Dianne the right to remove any trustee with or without cause, will be enforced unless the trust has been modified.
There is a strong public policy in effectuating and protecting the settlor's intent as set forth in the trust instrument. Albritton v. Albritton, supra. The settlor's intent controls, unless opposed to law or public policy. Richards v. Richards, 408 So.2d 1209 (La.1981). The settlor may modify the terms of the trust after its creation only to the extent he expressly reserves the rights to do so. La. R.S. 9:2021.
The court further recognized the concept of "trust indestructibility" as part of a public policy of "protecting the trust instrument from any modification or termination contrary to the settlor's clearly expressed intent." Id., at 1332; In re Guidry Trust, 97-1210 (La.App. 3 Cir. 5/6/98), 713 So.2d 631.
We acknowledge various factual differences between Albritton and the instant case. Albritton involved a testamentary trust, which was obviously the settlor's final statement of his intent, and the subsequent agreement between the beneficiary and trustee was clearly antagonistic to the settlor's will. However, Albritton's rationale nevertheless applies. The trust would not be a stable financial device if its critical components could be altered by extrinsic act unless the trust instrument provided for such a modification. The Act of Trust does not so provide; in fact, ¶ 2-3 prohibits it. Moreover, despite its somewhat broad language, the 1993 settlement does not express a clear intent to revoke Dianne's rights as settlor under ¶ 8-11, and the act of resignation as co-trustee clearly renounces only Dianne's administrative powers, not her rights as settlor of the trust. The District Court was not plainly wrong to find that the 1993 acts did not alter the Act of Trust.
By reply brief, Leo further argues that In re Guidry Trust, supra, is apposite and supports his argument that Dianne, as settlor, lacks the power to remove him as trustee. As in the instant case, the trust instrument in Guidry contained a blanket prohibition on the settlor's authority to "alter, amend, revoke or terminate" the trust. However, it did not include any provision analogous to ¶ 8-11, expressly reserving to the settlor the right to remove a trustee. For this reason, Guidry is distinguished.
Finally, we perceive no conflict between ¶ 2-3 and ¶ 8-11 of the Act of Trust. The first is a general ban on the settlor's authority to modify the terms of the trust, thus preserving its irrevocable status; the second is a specific reservation of power to remove any trustee with or without cause. The general provision does not negate the special instance provided in the Act of Trust. La. C.C. arts.2050, 2052; Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697; Lewis v. Intermedics Intraocular Inc., 56 F.3d 703 (5 Cir.1995).
These assignments of error lack merit.
By his sixth and seventh assignments Leo urges that even if Dianne had the authority to remove him as trustee, the District Court erred in failing to apply the equitable doctrines of detrimental reliance
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on its to his detriment and the other party was reasonable in so relying. La. C.C. art.1967. A claim of detrimental reliance must meet three requirements: (1) a representation by conduct or work; (2) justifiable reliance thereon; and (3) a change in position to one's detriment because of the reliance. Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19. Detrimental reliance is not favored in our law and is sparingly applied as it bars the normal assertion of rights otherwise present. Maddox v. Keen, 33,072 (La.App. 2 Cir. 4/7/00), 756 So.2d 1279, and citations therein. The doctrine applies only to misrepresentation of fact. Morris v. Friedman, supra; Barnett v. Board of Trustees, 00-1041 (La.App. 1 Cir. 6/22/01), 809 So.2d 184.
Because the trust is irrevocable and cannot be modified by the settlor, we find that Leo cannot have reasonably relied on the 1993 documents to modify the trust. Aside from the 1993 settlement and act of resignation, this record contains no evidence of any other "representations" Dianne may have made. Moreover, to apply detrimental reliance would deprive Dianne of a right she clearly retained in ¶ 8-11 of the Act of Trust. The theory of detrimental reliance is inapplicable to this case.
Abuse of rights is another equitable concept that is sparingly applied because it nullifies a party's otherwise enforceable rights. McInnis v. McInnis, supra. It applies only when one of four criteria is shown: (1) the right has been exercised for the predominant motive of causing harm; (2) there is no serious or legitimate interest for exercising the right; (3) exercise of the right is against moral rules, good faith, or elementary fairness; or (4) the right is being exercised for a purpose other than that for which it was originally conferred. Massachusetts Mut. Life Ins. Co. v. Nails, 549 So.2d 826 (La. 1989); McInnis v. McInnis, supra.
In brief, Leo asserts that all of these conditions exist, but he cites no facts in support. This court declined to find an abuse of rights in McInnis, supra, when the settlors exercised their right to revoke a trust in which their grandson was the principal beneficiary. The instant case also resembles Steier v. Heller, 31,733 (La. App. 2 Cir. 5/5/99), 732 So.2d 787, which found no abuse of right when a landlord exercised an option to terminate the lease. In his final accounting of trustee, Leo admitted that he had transferred trust assets to himself; this clearly negates the claim that Dianne has "no serious or legitimate interest" in removing him as trustee or that her action was "against moral rules, good faith or elementary fairness." There is no record evidence to support the other elements of abuse of rights.
These assignments of error lack merit.
Local rule and other procedural violations
By his first assignment Leo urges 12 separate violations of Local Rules of Court and procedural statutes which, he contends, denied him due process. Citing State v. Sprint Communications Co., 96-3094 (La.9/9/97), 699 So.2d 1058, and Rock v. ATPIC Trucking Co., 98-1420 (La.App. 1 Cir. 6/25/99), 739 So.2d 874, he contends
Rules of procedure are to be construed liberally with due regard for the fact that such rules implement the substantive laws and are not an end in themselves. La. C.C.P. art. 5051; City of Baton Rouge v. Johnca Properties L.L.C., 00-2524 (La.6/1/01), 794 So.2d 766. Local rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose. L & A Contracting Co. v. Mabry, 27,791 (La.App. 2 Cir. 1/24/96), 666 So.2d 1295, and citations therein. Moreover, the trial court has great discretion in the construction, interpretation, application or enforcement of its own rules. Precision Motors Inc. v. Beder, 273 So.2d 650 (La.App. 4 Cir.1973).
Leo's first five alleged violations are that one day before the June 28 hearing, the court granted Dianne a continuance; without consulting Leo, the court set the new hearing for July 19; the court then denied Leo's motion to upset the July 19 hearing; one day before that hearing, the court accepted Dianne's brief; and even after Leo complained to the District Court that he was "surprised" by the issues raised in that brief, the court held the hearing anyway. Leo contends that these rulings violate 4th JDC Rules 17B and 21.
Leo's next three alleged violations are that the trial court refused to let him present evidence at the hearing, denied him the right to a hearing and denied him the right to counsel at the hearing. However, Leo provides no factual support for these claims, and the record completely contradicts them. The District Court held a hearing at which Leo offered into evidence the 1993 settlement and act of resignation; the transcript of the hearing does not show that Leo, who is an attorney, complained that he needed representation. These three items are completely devoid of merit.
His next two alleged violations are that the judgment fails to remove him as trustee "provisionally" and to appoint a provisional trustee. La. R.S. 9:1791, 1786. However, a judgment removing a succession representative is not void for failure
The next alleged violation is that the District Court failed to grant him a suspensive appeal, to which he is entitled under La. C.C.P. arts. 2121, 2122 and 2133. A judgment removing a trustee "shall be executed provisionally." La. R.S. 9:1791. This is analogous to a judgment removing a succession representative, which "shall be executed provisionally, notwithstanding appeal," C.C.P. art. 2974, and is not subject to suspensive appeal. Succession of Beattie, 163 La. 831, 112 So. 802 (1927). Since the instant judgment is provisional, we perceive no error in the District Court's denial of a suspensive appeal.
Finally, Leo contends without elaboration that the District Court should not have taken up his motion for new trial after his motion for appeal had been granted; he suggests that the grant of appeal divested the District Court of jurisdiction under La. C.C.P. art.2088. In point of fact, the appeal was only premature until the court denied the motion for new trial on December 19. La. C.C.P. art. 2087 D. We perceive no error.
In conclusion, we have closely considered each of the alleged violations of local rules of court and other procedural rules. Some of the complaints are totally unsubstantiated. The rest present only questionable irregularities for which there is no prejudice shown and certainly no denial of due process, as was found in State v. Sprint Communications and Rock v. ATPIC Trucking, supra. This assignment of error lacks merit.
For the reasons expressed, the judgment is AFFIRMED. Costs are assessed to appellant, Leo A. Miller Jr.
APPLICATION FOR REHEARING
Before NORRIS, C.J., WILLIAMS, STEWART, CARAWAY, and PEATROSS, JJ.