In the matter of the Lucy E. Crumholt Trust

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT C h1 I 2012 CA 0950 IN THE MATTER OF THE LUCY E CRUMHOLT TRUST l 2 4 2Qi Judgment Rendered On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 525 217 The Honorable Kay Bates Judge Presiding x Thomas M Lockwood Baton Rouge Attorney for Plaintiffs Appellees Elizabeth Ann Herrington Crumholt Freda Wayne Crumholt Mayahi and Louisiana Elizabeth Ann Crumholt Walton J Greenwell Barnes II Springs Attorney for Defendant Appellee Louisiana Walton J Barnes II Greenwell Springs Louisiana BEFORE Julie Crumholt Hubert Attorney for Defendant Appellant Gillie Clifton Crumholt III PARRO WELCH AND KLINE JJ Judge William F Kline Jr retired serving ad hoc by special appointment of the Louisiana Supreme Cour 7 rn fx cxa i m y r ic c 2r KLINE J Gillie Clifton Crumholt III Cliff Crumholt was appointed the trustee of a trust set up by his mother Lucy E Crumholt naming herself as sole lifetime beneficiary with her four children as secondary beneficiaries Plaintiffs numerous beneficiaries filed suit against Cliff Crumholt for his failure to provide an accounting breach of trust conversion and for monetary damages This matter proceeded to a jury trial and judgment was rendered against him Cliff Crumholt now appeals We amend the judgment and affirm as amended FACTS AND PROCEDURAL HISTORY On September 29 1981 Lucy E Crumholt Lucy formed a corporation known as LEC Minerals Investments Ina LEC On May 5 1982 Lucy formed a trust known as the Lucy E Crumholt Trust the Trust or Trust Agreement Lucy was the sole beneficiary of the Trust during her lifetime The secondary beneficiaries of the Trust were Lucy four children Freddy Wayne s Crumholt Totsy Joy Crumholt Lyons Grace Jo Ann Crumholt Shipp and Cliff Crumholt Upon Lucy death the secondary beneficiaries were entitled to take s and receive from the Trust in which event the co were to divide the trustees principal equally with one share for each secondary beneficiary The Trust Agreement also provided that should any of her four children predecease her their descendants should represent their ancestor Cliff Crumholt and John Butler an accountant for Lucy were named as co of the Trust trustees On October 10 1985 Freddy predeceased his mother Lucy On October 3 1986 Lucy amended the Trust to substitute as beneficiaries Lenora Margaret Z Throughout the record Freddy is interchangeably spelled as Freddie The original Trust Agreement spells his name Freddy which this court will use 2 Crumholt Elizabeth Ann Crumholt and Freda Wayne Crumholt Mayahi children of Freddy Lucy also delivered to the Trust 1000 shares of no par value stock in LEC and any and all mineral interests in a described 238 acres of land and a described 640 acres of land Totsy also predeceased her mother leaving her five surviving children John A Chelette Jr Michael Dean Chelette Paul A Lyons Lisa Lyons C Landers and Cynthia Jill Lyons Hubbard The five children of Totsy became beneficiaries to the Trust by operation of the provisions of the Trust Lucy died on September 13 1990 John Butler eventually resigned his duties as co leaving Cliff Crumholt as the sole trustee trustee PROCEDURAL BACKGROUND On October 4 2004 Freda and Elizabeth Ann filed suit against Cliff Crumholt seeking to have the court remove him as trustee claiming that he did not submit the proper accountings for all periods after October 31 2000 as required by the Trust and that he did not make any distributions of income or principal as required by the purpose ofthe Trust On December 10 2008 the plaintiffs filed a supplemental and amending petition adding as plaintiffs Lenora Crumholt daughter of Freddy Sheila Shipp Wall daughter of Grace Jo Ann Michael Dean Chelette Lisa Lynn Lyons Jill Lyons Hubbard and Paul A Lyons children 3 The amendment lists Freddie Wayne as a child of Freddie Wayne From the petition and other evidence contained in the record the child of Freddie Wayne is Freda Wayne Crumholt Maya6i 4 While the xecord contains no date of death for Totsy her estate was admitted to Judgment of Possession on May 12 1988 5 Elizabeth Ann Herrington Grumholt surviving spouse of Freddy was also an original plaintiff but was removed by a supplemental and amending petition 6 Grace Jo Ann did not predecease her mother Lucy but is currently deceased At her death Grace Jo Ann lefr three daughters one of whom has since died Only one of Grace Jo Ands heirs is a party to this suit 3 of Totsy The supplemental and amending petition also added 7ulie C Hubert daughter of Cliff Crumholt as a defendant All of the plaintiffs claimed a breach of fiduciary duty owed to the Trust by Cliff Crumholt and Julie Hubert Plaintiffs sought a money judgment for funds used by the defendants for their own personal use and far the rental income from certain immovable property that was never deposited into the Trust Plaintiffs also sought interest on the value of the funds that should have remained in the Trust had the disbursements not been used for Cliff Crumholt and Julie Hubert personal purposes s s Cliff Crumholt and Julie Hubert filed exceptions of prescription and peremption with regard to all plaintiffs and an exception of no right of action with regard to the children of Totsy Michael Dean Chelette Lisa Lynn Lyons Jill Lyons Hubbard and Paul A Lyons Julie Hubert filed a motion for summary judgment claiming she owed no duty to the plaintiffs The trial court denied the exceptions of prescription and peremption on the basis that the time periods provided in La R 9 had not been triggered by an accounting rendered and S 2234 delivered by the trustee as no such accounting had been provided by the trustee The motion for summary judgment and exception of no right of action were also denied This matter proceeded to jury trial and a judgment was signed dismissing all claims against Julie Hubert and rendering judgment against Cliff Crumholt for Seven Hundred 100 000 Three Thirty Thousand and No Dollars 733 The judgment also removed Cliff Crumhalt as trustee of the Trust Cliff Crumholt filed a motion for new trial remittitur and judgment notwithstanding the verdict which were all denied by the trial court This appeal followed John A Chelette Jr Totsy son is not a party to these proceedings s No appeal has been taken regarding the dismissal of all claims aaainst Julie Hubert 4 ASSIGNMENTS OF ERROR Cliff Crumholt assigned numerous errors allegedly made by the trial court which are summarized as follows In 1 finding any evidence of ownership interest in the Trust by Michael Dean Chelette Lisa Lyons Paul Lyons and Jill Lyons Hubbard In 2 denying the exception of no right of action relative to the claims of Michael Dean Chelette Lisa Lyons Paul Lyons and Jill Lyons Hubbard 3In awarding any sums in favor of plaintiffs who did not testify at trial In 4 awarding any damages In 5 awarding damages despite a lack of evidence as to elements of damages sustained and entitlement thereto and alternatively in awarding excessive damages 6In finding evidence of mismanagement or loss justifying damages 7In awarding damages for conversion 8In denying postjudgment relief and not granring a directed verdict at the conclusion of plaintiffs case 9In overruling the exceptions of prescription and peremption STANDARD OF REVIEW Cliff Crumholt seeks to reverse the judgment that found he had breached his fiduciary duty to the Trust and converted funds from the Trust It is well settled that an appellate court cannot set aside a trial court findings of fact in the absence s of manifest error or unless those findings are clearly wrong Rosell v ESCO 549 2d So 840 844 La 1989 Boyd v Boyd 10 La App 1 Cir 2 57 1369 11 11 So3d 1169 1174 In order to reverse a fact finder determination of fact an s appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong Stobart v State through Dept of Transp and Development 617 So Zd 5 880 882 La 1993 Denton v I06 iApp 1 Cir 12 951 idrine 0141 a 06 28 2d So 274 287 writ denied 07 La 5957 So 152 0172 07 18 2d Cliff Crumholt also seeks to reverse the damages awarded by the jury Special damages are those which generally refer to specific eapenses which may be quantified arising out of the consequences of the defendant sbehaviar Coxe Properry Management and Leasing v Woods 09 La App 4 Cir 8 1729 l0 11 46 So3d 258 260 The findings of the trier of fact regarding special damages are subject to the manifest error standard of review Fleniken v Entergy Corporation 1824 1825 00 00 La App 1 Cir 2 780 So 1175 1195 writs denied O1 16 2d 1268 1305 1317 01 01 01 La 6 793 So 1250 1253 and 1254 O1 15 2d Based on our review of the record before us and mindful of the great deference we must affard the trier of fact we find no manifest error in the jury s finding that Cliff Crumholt breached his fiduciary duty to the Trust and converted funds from the Trust and that he is liable for the total damages caused by his breach however we do find that the judgment musY be amended for reasons hereinafter expressed LAW AND ANALYSIS Cliff Crumholt has assigned numerous errors of law but many are duplicative and will be discussed together accordingly Right of Action by some Plaintiffs Cliff Crumholt assigns as his first and second errors that the heirs of Totsy namely Michael Dean Chelette Lisa Lyons Paul Lyons and Jill Lyons Hubbard referred to hereinafter collectively as the heirs have no right of action since they have no ownership interest in the Trust After the death of Totsy her heirs incurred tax liabilities which resulted in the seizure by the Internal Revenue Service IRS of all property of the heirs including the interests owned by them 6 in the Trust At separate tax saies an August 7 I997 LEC purchased all right title and interest in and to the Trust then owned by the heirs Cliff Crumholt claims that as a result of LEC purchase of the heirs interests in the Trust the s heirs have no ownership in the Trust and no right of action in these proceedings The amendment to the Trust on October 3 1986 placed LEG in the Trust along with the mineral interests of certain properties Mr Butler an original co trustee testified that LEC was an investment account in which stocks were purchased and sold He specifically stated The stock of L Minerals and C E Investments were transferred Yo the Trust sometime in 86 or somerime in that period of time So the Trust owned L Minerals and Investments Therefore C E LEC is owned solely by the Trust and the purchase of the heirs interests was added to the corpus of the Trust 1 A Trustee and Beneficiary Cannot Alter or Amend a Trust To reiterate Cliff Cruml claims that the heirs had no interest in the Trust olt as LEC had purchased their shares in 1997 As the Louisiana Supreme Court stated in Albritton v Albritton 600 So 1328 1331 La 1992 2d 32 The trust would hardly be a stable device for the transmission of property if the beneficiaries and trustees could make agreements that could modify the settlor fundamentat intent in setting up the trust s We believe such modifications are contrary to the rules expressed in the trust code in La R 9 and 9 S 2021 2025 2021 General rule modification The settlor may modify the terms of the trust after its creation only to the xtent he expressly reserves the right to do so Emphasis added 2025 Delegation of right to terminate or to modify administrative provisions A settlor may delegate to another person the right to terminate a trust or to modify the administrative provisions of a trust but the right to modify other provisions of a trust may not be delegated Emphasis added 7 Thus under the scheme of the trust code even the settlor has no power to modify the trust he has created unless he expressly reserves the power to do so More importantly for our purposes the trust code prohibits the delegation of the power to modify provisions of the trust other than the administrative provisions Oppenheim Ingram 11 Louisiana Civil Law Treatise Trusts 294 1977 Likewise La R S 2028 9 sets forth a concept of trust indestructibility The consent of all settlors trustees and beneficiaries shall not be effective to terminate the trust or any disposition in trust unless the trust instrument provides otherwise We have held this concept of trust indestructibiliry is inherent in our Louisiana trust law Richards v Richards 408 So 1209 at 2d 1210 La 1981 Taken as a whole we believe these rules set forth a public policy of protecting the trust instrument from any modification ar termination contrary to the settlor clearly expressed intent These s are imperative rules of public order and any violation of these rules is an absolute nullity See Badon Employment Inc v FSmith 359 s 2d So 1284 La E Burns Co v Cashio 302 So 297 1978 L 2d 1974 La Section III of the Trust Agreement permitted only Lucy the settlor to alter or amend the Trust up until the time of her death with the concurrence of the co Yrustees After the death of Lucy the co had no authority to alter or amend trustees the Trust Parties at interest are forbidden to break up the trust in violation of the terms by consent between or by themselves In re Guidry Trust 97 La 1210 App 3 Cir 5 713 So 631 634 98 6 2d In the present case the IRS seized the beneficial interests of the heirs and sold those interests at a public auction At that public auction LEC purchased the beneficial interests being sold by the IRS Cliff Crumholt claims that in connection with that sale the heirs lost all their rights to the Trust as well as any claims against him A beneficiary has no right to sell mortgage lease or in any other respect dispose of the property which also means a beneficiary would have no right to return the property to the settlor Guidry 713 So at 636 A trust 2d cannot be terminated by consent even with the unanimous consent of all parties at interest that is the settlor the beneficiary and the trustee unless otherwise 8 provided for by the terms of the trust agreement See McLendon v First National Bank ofShreveport 299 So 407 410 La App 2 Cir 1974 2d We agree with the trial court that Cliff Crumholt as trustee could not unilaterally remove the heirs as beneficiaries of the Trust or consider them removed by operation of law According to Section V of the Trust Agreement the term of the Trust was to be t one wenty years after the date of death of the last surviving secondary beneficiary which in this case is twenty years after the one death of Cliff Crumholt who is currently alive A high standard of conduct for a trustee is codified in several Trust Code provisions Cliff Crumholt the trustee had an obligation to administer the Trust solely in the interest ofthe beneficiary La R 9 Prior to its revision by S 2082 2001 La Acts No 520 1 La R 92090 provided that a trustee in S administering a trust shall exercise such skill and care as a man of ordinary prudence would exercise in dealing with his own property Louisiana Revised Statute 9prohibits the trustee from buying or selling trust property directly or 2085 indirectly from or to himself his relative his employer employee partner or other business associate Louisiana Revised Statute 9 provides that a trustee is 2091 under a duty to a beneficiary to take reasonable steps to take keep control of and preserve the trust property Albritton v Albritton 622 So 709 713 n 2d 8 App La 1 Cir 1993 Effect of the Internal Revenue 2 Heirs Interests in the Trust Property sSeizure and Sale of the Service Even though the trustee and beneficiaries were unable to amend or alter the Trust was the IRS able to seize and sell the property interests of the heirs A trust in Louisiana is defined by the Louisiana Trust Code as the relationship resulting from the transfer of title to property to a person to be administered by him as a 9 fiduciary for the benefit of ano La R 9 emphasis added er l S 1731 The trustee is vested with title to the trust property which he must administer as a fiduciary See La R 9 This court has recognized the distinction between S1 781 the legal status of a trustee and that of a trust beneficiary Succession of Scott OS 2609 La App 1 Cir 11 950 So 846 849 writ denied 06 La 06 03 2d 2813 0 26 1 948 So 176 Under Louisiana law title to the trust property vests in 2d the trustee alone and a beneficiary has no title to ar ownership interest in trust property but only a civilian personal right vis the trustee to claim vis a whatever interest in the trust relationship the settlor has chosen to bestow Bridges v Autozone Properties Inc 04 La 3 900 Sa2d 784 796 0814 OS 24 97 The case of Read u United States Dep Treasury 169 F 3d 243 5 Cir tof 1999 applying Louisiana law involved an IRS lien and a Louisiana trust The Fifth Circuit held that the claims of creditors including the IRS against a s beneficiary interest affect only the debtor interest in the Trust and do not s attach directly to the trust estate Id at 254 The only thing the court may authorize a beneficiary screditor to seize is the beneficiary spersonal righthis interest in the trust relationship Id at 250 This is an eXpectancy of distribution under the Trust The only thing the IRS could seize in the present case was the heirs interests in the Trust not the property held by the Trust The IRS attempted to seize and sell any and all of the right title and interest of each heir of Totsy in his capacity as a beneficiary of the Lucy E Crumholt Trust The IRS then held a tax sale and sold that right title and interesY to LEC However until a distribution was made to each of the heirs the only thing that the IRS could seize was each heir personal right s See Wilson v United States Internal Revenue Service 140 B 400 404 Bankr Tex 1992 The only thing the heirs had R D N 10 at the time the IRS seized their pwas an xpectancy of distribution from the erty trust At the time of the seizure and sale the heirs had no title to the trust property as there had not been any distributions to the heirs On August 7 1997 the IRS issued a Sale of Seized Property Certificate of purporting to sell several rights belonging to each of the heirs which included 1 the right title and interest of and any and all demands or or causes of action of any kind ar nature claims in each s heir capacity as a beneficiary of the Lucy E Crumholt Trust 3 Any and all of the demands claims and causes of action in or the nature of allegation of breach of fiduciary responsibilities that each heir has or may have individually and in his or capacity as beneficiary of the Lucy E Crumholt Trust in and or against 1 Gillie Clifton Crumholt III individually and in or his capacity as trustee of the Lucy E Crumholt Trust and 2 or John D Butler individually and in his capaciry as trustee of or the Lucy E Crumholt Trust The IRS issued a separate deed for each of the heirs claiming that property was seized from the heirs pursuant to 26 U5CA 6331 and offered far sale at public auction on August 7 1997 At that auction LEC purchased certain property some of which was contained in the Trust LEC purported to purchase the property listed in the Certificate of Sale of Seized Property and the Deed 26 USCA 6331 provides a Authority of Secretary any person liable to pay any tax If neglects or refuses to pay the same within 10 days after notice and demand it shall be lawful for the Secretary to collect such tax and such further sum as shall be sufficient to cover the expenses of the belonging to levy by levy upon all property and rights to property such person or on which there is a lien provided in this chapter for the payment of such tax b Seizure and sale of property term levy as used in this The title includes the power of distraint and seizure 11 by any means A levy shall extend only to property possessed and obligations existing at the time thereof Texas Commerce Bank Nat Ass v United States 908 F453 S l n Supp D Tex 1995 involved an attempt by the IRS to levy upon the interest of a beneficiary in a trust in which payments to her were left to the sole discretion of the trustee until a certain year The discretionary nature of the trustee power s meant that the beneficiary had no property or rights to property to which the levy could attach when it was imposed Id at 459 At the time the IRS imposes its levy a right to future income distributions is a contingent non and clearly vested determinable non right Id A levy extends only to property possessed and obligations which exist at the time of the levy R F 26 C a 1 6331 n 301 A IRS levy will not reach a taxpayer claim to receive payments in the future where s the taxpayer does not at the time of the levy have a fixed and determinable right to those payments Id quoting In re Hawn 149 B 450 457 Bankr Tex R D S 1993 T IRS has ruled that a levy will not reach unvested contingent rights he to future payments Id These cases establish that the purchase of the right title and interest by LEC of the heirs interests in the Trust is an absolute nullity because the heirs rights to future payments were not fixed and determinable when the IRS levy effected their seizure of those interests See Albritton 600 So at 1332 stating 2d that an extension of a trust agreement contrary to the settlor intent is an absolute s nullity Furthermare the sale by the IRS to the extent it purported to alter any portion of the Trust is also an absolute nullity Albritton held that the consent of all settlors trustees and beneficiaries shall not be effective to terminate the trust or any disposition in trust unless the trust instrument provides otherwise violation of this rule is an absolute nullity Id 12 Id A Only the settlor Lucy had the authority to terminate the interests of the beneficiaries not Cliff Crumholt the trustee and not LEC a corporation solely owned by the Trust See La R 9 S 2021 and 92025 An agent who acquires his principal property or one who otherwise acts in s a fiduciary capacity bears the burden of establishing that the transaction was an length s arm affair This means that the agent or fiduciary must handle the matter as though it were his own affair It also means the agent or fiduciary may not take even the slightest advantage but must zealously diligently and honestly guard and champion the rights of his principal against all other persons whomsoever and is bound not to act in antagonism opposition or conflict with the interest of the principal to even the slightest extent The reason for the rule is obvious Noe v Roussel 310 So 80b 818 La 1975 2d 19 There is no evidence in the record to establish that LEC purchase of the s heirs interests in the Trust and the return of those interests to the Trust were length arms transactions Cliff Crumholt had absolutely no autharity to divest the heirs of their interests in the Trust or to terminate the Trust for certain beneficiaries priar to the time set in the Trust The legal authority reviewed by this court simply does not support the conclusion that the beneficiaries of a trust forfeit their status as beneficiaries when their interests are seized by a creditor and sold at public auction The trial court correctly held that the purchase of the interests of the heirs did not divest them of their interests in the Trust Cliff Crumholt first and second s assignments of error relative to the ownership interests of the heirs and the exception of no right of action are without merit Lack of Evidence as to Damages or Excessiveness For various reasons Cliff Crumholt asserts in assignments of error three through six that the plaintiffs are not entitled to the damages awarded 13 The Louisiana Trust Se Co Revised Statutes Title 9 establishes the duties of the trustee 2081 et seq Louisiana Revised Statute 9 sets forth 2090 the following standard for administration of a trust A A trustee shall administer the trust as a prudent person would administer it In satisfying this standard the trustee shall exercise reasonable care and skill considering the purposes terms distribution requirements and other circumstances of the trust B A trustee who has speciai skills or expertise or has held himself out as having special skills or expertise has a dury to use those special skills or expertise The trustee must administer the trust solely in the interest of the beneficiary La S 2082 R 9 must invest and manage trust property as a prudent investor La S 2127 R 9 and unless the trust instrument provides otherwise is prohibited from lending funds to himself or to his employer partner or other business associate La R 9 Moreover a trustee has a duty to 1 take reasonable steps to S 2084 take keep control of and preserve the trust property La R 9 2 defend S 2091 actions that may result in a loss to the trust estate unless such defense is unreasonable under the circumstances La R 9 and 3 keep the trust S 2093 property separate from his own individual property and separate from other non trust property La R 9 In addition to providing an annual accounting see S 2094 La R 9 the trustee must furnish complete and accurate information S 2088 whenever a beneficiary requests information regarding the trust La R 9 S 2089 Any violation of a duty owed to a beneficiary by the trustee is defined as a breach of trust La R 9 The liability of a trustee who commits a breach S 2081 of trust is set forth in La R 9which provides S 2201 If a trustee commits a breach of trust he shall be chargeable with A 1 loss or depreciation in value of the trust estate resulting from a breach of trust ar 2 A profit made by him through breach of trust or 14 3 A profit that would have accrued to the trust estate if there had been no breach of trust The statutory provisions relative to the responsibilities of a trustee are rigid and hold the trustee to an even higher fiduciary responsibility to his beneficiary than that owed by a succession representative to heirs The very ward trustee implies the strongest obligation on the part of the trustee to be chaste in all dealings with the beneficiary Albritton 622 So at 713 citing Succession of Dunham 2d 40 So 888 940 La A trustee is required to administer the trust solely 2d 1981 in the interest of the beneficiaries La R 9 Failure to do so is considered S 2082 a breach of the dury of loyalty See La R 9 Revision Comment c The S 2082 duty of loyalty is the fundamental duty owed by a trustee as a fiduciary Because of that fact even an exculpatory provision in the trust instrument is not effective to relieve the trustee from liability for breach of the duty of loyalty to a beneficiary See La R 9 B Albritton 622 So at 713 S 2206 2d Cliff Crumholt claims that the trial court should not have awarded any damages to any plaintiff who did not testify at trial As mentioned above an appellate court may not set aside a trial court finding of fact in the absence of s clear or manifest error See Lewis v State through Dep of Ti and Dev 94 t ansp 2370 La 4 654 95 21 2d So 311 A plaintiff is required to prove special damages by a preponderance of the evidence Fleniken 780 So at 1195 There 2d is no requirement that the reliable evidence be in the form of plaintiff own s testimony In Welch v Willis PierYemont 45 La App 2 Cir 11 Knighton 554 10 17 56 So 242 257 writs denied 11 11 La 2125 58 So3d 457 3d 0075 0109 11 459 the defendant moved to dismiss the case of a plaintiff who did not appear at trial The court held that it is well that an appearance by a party for trial settled 15 may be either personal or through his counsel of record Ic Another case Simmons v ChYistus Schumpert Medical Center 45 La App 2 Cir 6115 908 11 71 So 407 writs denied 11 11 La 1017 1 71 So3d 317 and 318 3d 1591 1592 l involved two plaintiffs who did not testify The court held that the testimony of other witnesses was sufficient to support the award of damages to the two children of the decedent who could not appear at trial Id at 428 29 Cliff Crumholt also complains that damages were not proven at trial due to lack of proof as to the plaintiffs interests in the Trust or their identities as beneficiaries As determined and for the reasons discussed above the heirs of Totsy were entitled to be classified as beneficiaries of the Trust The record contains evidence of the creation of the Trust which established Lucy as the sole benefciary unti her death After her death her four children Freddy Totsy Grace 7o Ann and Cliff Crumholt the named secondary beneficiaries were to be beneficiaries of the Trust The Trust also provided that should any of her children predecease her that child share of the Trust was to go to the descendants of the s deceased child The record contains sufficient information for the juiy to have determined the identities of the plaintiffs and their entitlement to damages Julie Hubert daughter of Cliff Crumholt testified that her uncle Freddy had passed away leaving her cousins Freda Elizabeth Ann and Lenora There is also evidence in the record that Freddy predeceased Lucy and that his children were substituted as beneficiaries Julie Hubert further testified that her aunt Grace Jo Ann has since passed away leaving three daughters Cheryl Ann Sheila and Carla Charmane who has also passed away Julie finally testified that the children of her aunt Totsy who were involved in the suit were Michael Paul Jill and Lisa The recard 16 also contains documentary evidence as to the identities of the beneficiaries of the Trust A review of the record further reveals sufficient evidence of a breach of fiduciary duty and damages The record is replete with evidence of Cliff s Crumholt use of the funds of the Trust far his own personal use including but not limited to purchases of gas for his vehicle groceries and clothing entertainment restaurants and ordinary living expenses and travel ea penses incurred on trips taken in the United States and abroad Cliff Crumholt gave no explanation for any of the expenses he charged to the Trust other than the fact that he was the hustee so he felt he could pay some of his personal expenses with Trust funds Section IV of the Trust Agreement provides that the trustee was to divide the principal of the Trust into sufficient equal shares to create one share for each child of Lucy upon her death Cliff Crumholt admitted that he did not comply with this requirement of the Trust The Trust was set up with the purpose of providing care comfort maintenance support education and advancement in life to the beneficiaries There is no evidence in the record Yhat the trustee in order to fulfill the purpose of the Trust delivered any funds from the Trust to any of the beneficiaries other than to himself The record also supports the claim of the plaintiffs that no accountings were made as required by Section IX of the Trust Agreement Although Cliff Crumholt asserted at trial that he had provided the financial statements of LEC on at least three occasions we agree with the trial court that none of those satisfied the accounting requirements of the Trust Louisiana Revised Statute 9 provides 2088 that e annual account shall show in detail all receipts and disbursements of ach cash and all receipts and deliveries of other trust property during the year and shall 17 set forth a list of all items of tci roperty a ia cnd of the year The financial s statements of LEC did not fulfll the requirements of La R 9 and S 2088 therefore no accounting was ever made by Cliff Crumholt Furthermare even if some of the beneficiaries told Cliff Crumholt that they did not need an accounting he could not thereby be relieved of his duty to provide such accounting as required by the Trust No one other than Lucy until her death had the authority to alter or amend the Trust Ralph Stevens an expert in the field of tax and forensic accounting testified at trial on behalf of the plaintiffs Mr Stevens reviewed all of the records of the Hancock Bank checking account for LEC which was owned by the Trust as well as LEC brokerage account at Smith Barney s Mr Stevens testified as to the amounts withdrawn from the Smith Barney account deposits into the Hancock Bank account and checks written from the Hancock Bank account The only signatars on that account were Cliff Crumholt and Julie Hubert The record contains hundreds of documents of all of these transactions which were made available to the jury These documents evidence numerous disbursals far items that appear to be personal rather than management related To reiterate there is no evidence in the record of any distributions made to any of the other beneficiaries Cliff Crumholt testified that he thought a distribution was made in the 1990s but provided no evidence that it was actually made There is also evidence that on one occasion when a beneficiary requested a small distribution for needed dental work the request was denied by Cliff Crumholt It appears from all the testimony and documents that only Cliff Crumholt ever received any distribution from the Trust Whether Cliff Crumholt breached his fiduciary duty to the Trust and the extent of that breach are findings of fact A court of appeal may not set aside a 18 s jury findings of fact absent manifest error or unless it is clearly wrong Rosell 549 So at 844 The issue to be resolved by the appellate court is not whether 2d the trier of fact was right or wrong but rather to determine whether the fact s finder conclusion was reasonable Stobart 617 So at 882 The reviewing 2d court must remember that if the trial court or jury findings are reasonable the s court of appeal may not reverse Id at 882 In light of the degree of deference 83 afforded to the fact finder we cannot say that the jury decision to award damages s to the plaintiffs was clearly wrong Alternatively Cliff Crumholt contends that the damages awarded to the plaintiffs were excessive On appeal one of the issues raised by Cliff Crumholt is whether the jury verdict can be interpreted as the loss due to the Trust rather than the individual damages to awarded was obviously plaintiffs rendered rather than the interest of the parties Specifically he argues that the amount based upon the entirety of the Trust loss who are laintiffs p He further argues that the plaintiffs have no conceivable interest in the interest of beneficiaries who have not filed suit He maintains that a review of the numbers on the j ury erdict v form indicates that the jury awarded an amount based upon what they perceived as the entire loss to the T rather than prorating the damages rust suffered by the particular plaintiffs Accordingly he asserts that the damages awarded to the plaintiffs are excessive taking into consideration the ownership s interest in the Trust held by the p laintiffs While we agree that the monetary damages awarded to the particular plaintiffs herein exceeded their respective interests we do not agree that the plaintiffs in this matter had no right or cause of action to compel Cliff Crumholt to redress the total amount of Trust loss due to his breach of trust l9 Clearly any beneficiary of a trust may institute an action to compel a trustee to redress a breach of trust La R 9 Pursuant to La R S 2221 3 S 2201 9 a trustee who commits a breach of trust shall be chargeable with 1 a loss or depreciation in value of the trust estate resulting from a breach of trust or 2 a profit made by him through breach of trust or 3 a profit that would have accrued to the trust estate if there had been no breach of trust Thus under the Trust Code a beneficiary has alternative remedies or options which he may pursue against a trustee for his breach See La R 9 Official Comment b and Restatement S 2201 Second Trusts 205 comment a Moreover to the extent that the Trust Code does not address a particular circumstance resort shall be had to provisions of the Civil Code or other laws See La R 9 S 1724 In their petition the plaintiffs prayed for and the jury verdict and subsequent judgment awarded monetary damages to the plaintiffs rather than to the Trust without any objection from Cliff Crumholt Likewise on appeal Cliff Crumholt neither raises as an assignment of error nor does he contest in any fashion the fact that monetary damages were awarded to the plaintiffs as opposed to the Trust Certainly a benefciary may seek to have damages caused by a s trustee breach awarded to the trust See In e Donald E Bradford Trust 524 2d So 1213 La App lst Cir 1987 writgranted 526 So 785 La 1988 aff 2d d 9 It is not necessary for all beneficiaries of a trust to join in such an acrion See e In re g Donald E Bradford Trust 524 So 1213 1214 n La App lst Cir 1987 writ granted 526 2d 2 2d So 78 La 1988 affd in pertinent part 538 So 263 La 1989 2d Comment a to seetion 205 af Restatement Second Trusts provides AZternative remedies for breach of tr If the trustee commits a breach of trust st z the beneficiary may have the option of pursuing a remedy which will put him in the position in which he was before the trustee committed the breach of trust or of pursuing a remedy which will give him any profit which the trustee has made by committing the breach of trust or of pursuing a remedy which will put him in the position in which he would have been if the trustee had not committed the breach of trust 20 in pertinent part 538 So 263 La 198J the court of appeal 2d zfrirming s judgment ordering that the loss suffered by the trust as a result of the trustee s breach of trust was to be reimbursed by him to the trust However that does not preclude the possibility of damages being awarded to the plainfiffs iciaries benef in this case Courts have previously recognized that monetary damages may be awarded to a beneFiciary for a trustee breach of trust See s Brown v Schwegmann OS La 4 Cir 4 958 So 721 wNit 0830 App 07 25 2d denied 07 La 9121I07 964 So 333 awarding monetary damages to a 1094 2d beneficiary for trustee breach s of trust As noted above the law provides alternative remedies to a beneficiary Therefare there is no error in that aspect of the judgment which awards damages to the plaintiffs Nevertheless the facts alleged by the plaintiffs in their petition as well as the evidence presented by the plaintiffs and considered by the jury at trial pertained to amounts suffered by the Trust itself and not solely to the speciSc plaintiffs losses based on their proportionate interests in the Trust Even on appeal the plaintiffs brief only references amounts purportedly lost by the Trust and fails to mathematically account for their proportionate interests in the Trust Even so the jury verdict and the judgment awarded damages exclusively to the plaintiffs The plaintiffs herein only possess interests in the Trust toYaling 33 53 whereas the non beneficiaries possess the remaining 46 plaintiff 67 After an exhaustive review of the record we are compelled to conclude that the amount awarded by the judgment to the plaintiffs was not limited to their to the plaintiffs respective interests in the Trust Freda Elizabeth Lenora and Sheila possess 8 each and Jill Michael Lisa and Paul each possess 5 Thus the plaintiffs 333 total interest is 53 As to the non beneficiaries Cliff Crumholt possesses 25 333 plaintiff John A Chelette Jr possesses 5 and Grace Jo Ann remaining descendants possess 16 s 666 making a total of 46 666 21 respective interests in the Trust but was awardeci based on the total Trust loss Simply put there was insufficient evidence presented at trial to establish that the amount of loss to the Trust was such that its reduction by 46 would support 67 the amount awarded to the plaintiffs However while this finding affects the amount of monetary damages that plaintiffs are entitled to receive it does not reduce the amount of dama that the iury concluded that Cliff Cramholt is es liable for as a result of his breach of trust Pursuant to the Louisiana Code of Civil Procedure system of fact pleading s as long as facts constituting a claim are alleged a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled even if the party has not demanded such relief in his pleadings and the latter contains no prayer for general and equitable relief See LSA art 862 Lieux v Mitchell 06 P C 0382 App La lst Cir 12 951 So 307 317 writ denied 07 La 06 28 2d Q905 07 15 6 958 So 1199 In their petition plaintiffs alleged facts regarding Cliff 2d s Crumholt improper use of property belonging to the Trust and in no way limited their allegations regarding Cliff Crumholt sbreach merely as it pertained to their interests in the Trust They further s alleged that Cliff Crumholt ecifically breached his duty to the TrusY and to them as its beneficiaries by improperly taking money from the Trust to use for his own purposes and or for purposes otherwise inconsistent with the purposes of the Trust The jury essenrially concluded that a total of 408 of Trust property had been taken or 000 converted by Cliff Crumholt as the remaining portion of the award was for the loss of intexest that would have accrued For this amount to correspond to the plaintiffs interests in the Trust the evidence would have to demonstrate that at least 765 had actually been taken from the 048 Trust Some of the money plaintiffs claimed was taken was simply moved from one LEC account to other LEC accounts and thus did not constitute a taking Assuming solely for the sake of argument that the jury found all of the expenditures were improper that would only be proof that a maximum of 744 had been taken Thus despite viewing Yhe evidence in a light 579 most favorable to the plaintiffs the record fails to establish that the amount awarded to the plaintiffs was based solely on their interests in the Trust 22 Moreover twice in their petition the plaintiffs prayed for any and all other relief legal or equitable available Clearly under the law the plaintiffs had a right to seek redress on behalf of the Trust for Cliff Crumholt breach of trust as s well as damages based on their respective interests in the Trust Therefore considering the faregoing we conclude that the judgment must be amended to provide that the plaintiffs are only entitled to receive monetary damages equaling 53 of the total amount awarded while the remaining 33 67 46 the amount attributable to the non beneficiaries is to be returned plaintiff to the Trust In essence the remedies authorized by law the pleadings and the character of the evidence relative to the diminution of the Trust support and affard the relief granted herein Damages for Conversion Cliff Crumholt assigns as error number seven that the jury improperly awarded damages for conversion and that this award duplicated the other damages Even though Cliff Crumholt does not express this objection as relating to the verdict form he is essentially assigning as error the fact that the verdict form allowed damages for both breach of fiduciary duty and conversion There is nothing in the record evidencing that any objection was made as to the nature of the verdict form or to any portion of the jury verdict form requires a contemporaneous objection We note that the law The failure to make a contemporaneous objection to the jury instructions or to the jury verdict form precludes the issues from being raised far the first time on appeal See La C art 1793 Robinson P v flstra Pharmaceutical Products Inc 98 98 La App 1 Cir 0361 0362 00 31 3 765 So 378 383 writ denied 00 La 6 763 So 607 2d 1225 00 2 2d Therefore this assignment of error is without merit 23 Judgment Post Relief Directed Verdict and Denial of Exceptions Cliff Crumholt assigns as error number eight that the trial court erred in denying his motions for postjudgment relief and for a directed verdict At the close of the plaintiffs case Cliff Crumholt moved far a directed verdict seeking dismissal of plaintiffs case After the trial Cliff Crumholt filed a motion for the new trial remittitur and judgment notwithstanding the verdict JNOV In ruling on a motion for a directed verdict under La C art 1810 or for P JNOV under La C art 1811 the trial court employs the following legal P standard for granting such a motion whether after considering the evidence in the light most favorable to the party opposed to the motion the trial court finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not anive at a contrary verdict on that issue Hammons v St Paul 12 La App 4 Cir 9126 101 So3d 1006 1010 Thus a trial 0346 12 court may only grant a directed verdict or a JNOV when the evidence overwhelmingly points to such a conclusion Id If there is substantial evidence opposed to the motion of such qualiry and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions the motion must be denied Petitto v McMichael 588 So ll44 1147 La App 1 2d Cir 1991 writ denied 590 So 1201 La 1992 Barnes v Thames 578 So 2d 2d ll55 1169 La App 1 Cir w denied 577 So 1009 La 1991 Further a its 2d new trial should be granted only upon contradictory motion of a party if the verdict or judgment appears contrary to the law and evidence La C art P lA trial court also has discretionary power to grant a new trial under 1972 certain circumstances See La C art 1973 P Based on our review of the record we agree with the trial court that there was sufficient evidence presented to the jury We find that there was substantial 24 evidence opposed to the motion far directed verdict and JNOV and that this evidence was of such quality and weight that reasonable and fair men in minded the exercise of impartial judgment might reach the conclusion that Cliff Crumholt had breached his fiduciary duty and converted property belonging to the Trust Likewise we find no mandatory basis upon which the trial court was required to grant the motion for new trial nor do we find any abuse of the trial court s discretion in its ruling denying the motion for a new trial Accordingly we affirm the trial court denial of the motions for directed verdict JNOV and new trial s Cliff Crumholt assignment of error number nine is that the trial court erred s in failing to grant his exceptions of prescription and peremption The trial court denied these exceptions Plaintiffs correctly assert that their claims are not prescribed or preempted because they never received accountings sufficient to trigger the running of the peremptive periods in the Louisiana Trust Code Louisiana Revised Statute 9 requires that an action for damages by a 2234 beneficiary against a trustee be brought within two years of the date the trustee renders an accounting far the accounting period in which the alleged act omission or breach of dury occurred Furthermore it requires that all actions shall be filed even as to the actions within two years of disclosure within three years of the date the trustee renders an accounting for the accounting period in which the alleged act omission or breach of duty occurred Thus the issue is whether the trustee rendered an accounting sufficient to meet the requirements of La R 9 B S 2088 which provides as follows Each annual account shall show in detail all receipts and disbursements of cash and all receipts and deliveries of other trust property during the year and shall set forth a list of all items of trust property at the end of the year 25 The burden is on the trustee to show when he made an accounting sufficient to trigger the commencement of the time periods provided by La R 9 See S 2234 Boyd 57 So3d at 1175 As in Boyd there is no evidence in the record of any accounting sufficient to meet the requirements of the Louisiana Trust Code We find no manifest error in the trial court finding that Cliff Crumholt never s rendered an accounting to the plaintiffs sufficient to trigger the commencement of the peremptive period These assignments of error are without merit Judgment As previously stated we find that due to the nature of the pleadings as well as the evidence adduced at trial and considered by the jury the judgment must be amended to specify that the monetary damages are to be split with 53 of the 33 award going to the plaintiffs and 46 of the award going to the Trust 67 In addition we note that the judgment contains a mathematical errar Whereas the jury verdict form indicates that the total amount the jury awarded was 733 500 the judgment only awards 733 000 Accardingly we amend the judgment to reflect an award to the plaintiffs in the amount of 391 representing 55 175 33 53 of 733 and to the Trust in the amount of 342 representing 500 45 324 67 46 of 733 Moreover because the plaintiffs had varying interests in the 500 Trust that portion of the judgment awarding damages to the plaintiffs in the amount of 391 must be further amended to reflect those interests as 55 175 follows plaintiffs Lenora Margaret Crumholt Elizabeth Ann Crumholt Freda Wayne Crumholt and Sheila Shipp Wall each having a 1 interest in the Trust 12 are each entitled to 15 of the 391 and plaintiffs Michael Dean 62 55 175 Chelette Lisa Lynn Lyons Jill Lyons Hubbard and Paul A Lyons each having a 20 1 interest in the Trust are each entitled to 938 of the 391 55 175 26 CONCLUSION For all of the foregoing reasons we amend the judgment to award damages to the plaintiffs in the amount of 391 and to the Lucy E Crumholt Trust in 55 175 the amount of 342 We further amend the judgnent to provide that with 45 324 respect to the award to the plaintiffs of 391 plaintiffs Lenora Margaret 55 175 Crumholt Elizabeth Ann Crumholt Freda Wayne Crumholt and Sheila Shipp Wall are each entitled to 15 of that amount and plaintiffs Michael Dean 62 Chelette Lisa Lynn Lyons Jill Lyons Hubbard and Paul A Lyons are each entitled to 938 of that amount The judgment as amended is affirmed Cliff Crumholt is cast with all costs of this appeal JUDGMENT AMENDED AFFIRMED AS AMENDED 7 2

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