Succession of Albert E. Pittman .

SUCCESSION OF ALBERT E. * NO. 2019-CA-0683

PITTMAN

*

COURT OF APPEAL

*

FOURTH CIRCUIT

*

STATE OF LOUISIANA

*******

APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH

NO. 2000-11819, DIVISION “D”

Honorable Nakisha Ervin-Knott, Judge

******

JUDGE SANDRA CABRINA JENKINS

******

(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge

Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)

LOBRANO, J., CONCURS IN THE RESULT

LEDET, J., DISSENTS WITH REASONS

ATKINS, J., DISSENTS FOR THE REASONS ASSIGNED BY J. LEDET

Brett M. Dupuy

Rebecca S. Miller

MIDDLEBERG RIDDLE GROUP

909 Poydras Street, Suite 1400

New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

Michael R.C. Riess

Christy R. Bergeron

RIESS LEMIEUX, LLC

1100 Poydras Street, Suite 1100

New Orleans, LA 70163

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

JULY 1, 2020

SCJ

EAL

This appeal arises from a dispute over the management of a testamentary

trust (“the Trust”), created upon the death of Albert E. Pittman in 2000. In the

Trust, Mr. Pittman designated his wife, Gloria, as Trustee and income beneficiary,

and named his four children as equal principal beneficiaries. In 2017, a

representative of one of four principal beneficiaries, Lisa Montgomery

(“Montgomery”), filed a Rule to Remove Trustee and for Restitution of Funds. In

response, Gloria, as Trustee, filed a motion for summary judgment seeking the

dismissal of the Rule to Remove. Montgomery now appeals the trial court’s

judgment granting the motion for summary judgment filed by Gloria and

dismissing the Rule to Remove. Based on our de novo review of the motion for

summary judgment, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1974, Albert Pittman and Gloria Pittman were married. At that time, they

each had two children from prior marriages—Albert’s children were Sandra

1

(Sandy) Pittman and Chris Pittman; Gloria’s children were Donna Pittman Velez

and Cynthia Pittman Rodriguez.

In July 2000, Albert died testate, with his will providing for specific

bequests of assets to Gloria and his children and creating the Trust with the

remaining assets. Albert designated Gloria the Trustee and income beneficiary of

the Trust, which was divided into Portions A and B for federal tax purposes,1 and

named his four children as equal principal beneficiaries of the Trust. As the

income beneficiary, Gloria was entitled to the income interest upon the entire

corpus of the Trust for her lifetime. Upon Gloria’s death, the Trust terminates and

the children receive equal distributions of the corpus of the Trust. As to the

administration of the Trust during Gloria’s lifetime, the will states as follows:

(13) I suggest Gloria, as trustee, to make monthly payments, first out

of income from the invested funds, then, if necessary, out of the

principal of these invested funds, and finally, from my interest in the

corporation named in paragraph 10, as follows: (a) $4,000.00 to

Gloria until her death. Gloria shall have the right to invade the

corpus balance if, when and to the extent necessary to maintain

her present standard of living and well-being, and maintenance of

her home. Upon and after Gloria’s death, I suggest my co-trustees to

make monthly payments in the same order of such funds of $4,000.00

each to Chris, Sandy, Cindy, and Donna, until their deaths or total

depletion of all property and funds in my estate.

Shortly after Albert’s death, in August 2000, the co-executrixes of his

succession—Gloria and his daughter, Sandra—filed a “Petition to Probate Will and

Qualify Co-Executrixes” in Orleans Parish Civil District Court, opening the

Succession. In September 2002, the co-executrixes obtained a judgment of

1

The Trust was created as a Qualified Terminable Interest Property trust, aka the Schedule M,

Q-TIP election, which allows a testator’s estate to pass to the surviving spouse without estate

taxation; and the property becomes taxable upon the death of the surviving spouse.

2

possession. Among the assets included in the estate were two notes payable to the

testator, Albert, by his daughter, Sandy.

In April 2003, Sandy executed a promissory note in the amount of

$193,160.23, payable to Albert’s estate and Gloria, representing and replacing the

two pre-death notes. In 2008, Gloria, individually and on behalf of the estate, filed

suit against Sandra to collect on the promissory note. Following multiple years of

litigation, including a judgment in favor of the estate and Gloria,2 a settlement was

reached. As part of the settlement, in June 2015, Sandy renounced her interest in

her father’s estate.

In 2006, Albert’s son, Chris, died testate, leaving a surviving spouse,

Montgomery, and four adult children—Jonathan, Rachel, Christopher, and

Jaime—from previous marriages. In his will, Chris named Montgomery as the

executrix of his estate.

From December 2008 to February 2013, Montgomery, a licensed Louisiana

attorney, was employed as an associate at the law firm of Kingsmill Riess, L.L.C.,

now know as Riess LeMieux, L.L.C. (the “Riess Firm”). During Montgomery’s

tenure there, Gloria retained the Reiss Firm to represent Albert’s estate and herself

in the lawsuit filed against Sandy. However, Montgomery was not a named

attorney representing the estate or the Trustee in the litigation against Sandra.

In 2016, the instant dispute arose between Montgomery and Gloria, who

began to withdraw $7,000 per month from the Trust to make $1000 monthly gifts

2

Estate of Pittman v. Pittman, 10-1761 (La. App. 4 Cir. 7/6/11), 69 So.3d 1254.

3

to Donna, Cynthia, Montgomery, and each of Chris’s four children. Gloria made

the same withdrawal and distributions for thirteen months, totally $91,000.00 in

distributions.

In February 2017, Montgomery, as the executrix and representative of

Chris’s estate, filed a “Rule to Show Cause for Accounting of Trusts and Other

Relief” in this (Albert’s) succession case. Montgomery asserted that she had

requested accountings and additional information regarding the trust assets and

administration of the Trust, but that the responses to her requests were “generally

delayed” and the accounting information was “unclear” and “incomplete.” In

response to Montgomery’s rule to show cause, Gloria filed an opposition asserting

that she has complied with all requests for accounting, having Greg Rodriguez,

Albert and Gloria’s son-in-law and a certified public accountant, provide the

responses to Montgomery’s requests for accountings through Montgomery’s

attorneys, who sent the written requests. Following a hearing on the rule for

accounting, the trial court’s May 3, 2017 judgement ordered Gloria to submit the

annual accounting for 2016 to all beneficiaries of the Trust, including

Montgomery; to provide electronic copies of the monthly statements for the Trust

for 2013 through 2016 to Montgomery; and, going forward, to provide electronic

copies of the monthly statements for the Trust to Montgomery.

In November 2017, Montgomery, on behalf of Chris’s estate, filed the Rule

to Remove Trustee and for Restitution of Funds in this succession case.

Montgomery asserted that Gloria had disregarded the plain language of the Trust

4

by invading the corpus of the Trust and breached her fiduciary duties as Trustee to

a principal beneficiary of the Trust, Chris’s succession.3 Montgomery sought an

order declaring that Gloria had breached her fiduciary duties to Chris’s succession,

that Gloria be removed as Trustee and replaced with a third party trustee, and that

Gloria be required to pay restitution for sums paid out of the Trust and to pay other

damages.

In August 2018, Gloria filed a motion for summary judgment seeking

dismissal of the Rule to Remove filed by Montgomery. Gloria argued summary

judgment was warranted on three grounds: (1) the clear wording of Albert’s will

allows for Gloria to expend the Trust fund as she desires; (2) Montgomery is

equitably estopped from challenging whether the clear wording of the will allows

Gloria to expend the Trust funds; and (3) Montgomery is judicially estopped from

making the challenge.

On November 2, 2018, the trial court held a hearing, at the conclusion of

which the trial court granted the motion for summary judgment in favor of Gloria.

The trial court’s December 3, 2018 judgment granted Gloria’s motion for summary

judgment, and dismissed Montgomery’s Rule to Remove Trustee and for

Restitution of Funds. Montgomery then filed a timely motion for new trial, which

the trial court denied after a hearing.

3

According to Montgomery, the only assets of Chris’s estate are his interest in the Trust and a

25% interest in Albert’s family home, of which Gloria was bequeathed a 50% interest and

usufruct for her lifetime and in which she resides.

5

Montgomery now appeals the trial court’s December 3, 2018 judgment

granting the motion for summary judgment in favor of Gloria and dismissing the

Rule to Remove Trustee and for Restitution of Funds.

DISCUSSION

Standard of Review

Appellate courts review a trial court’s ruling on a motion for summary

judgment under a de novo standard of review, using the same criteria applied by

the trial court in determining whether summary judgment is appropriate. Smith v.

State, 18-0197, p. 3 (La. App. 4 Cir. 1/19/19), 262 So.3d 977, 980. Thus, the

appellate court applies the summary judgment standard for granting summary

judgment set forth in La. C.C.P. art. 966(A)(3), as follows: “[a]fter an opportunity

for adequate discovery, a motion for summary judgment shall be granted if the

motion, memorandum, and supporting documentation 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 appellate court is not required to analyze the facts and

evidence with deference to the judgment of the trial court or its reasons for

judgment but looks at the record anew to make an independent determination

regarding whether there are genuine issues of material fact that would preclude

granting summary judgment. Smith, 18-0197, p. 3, 262 So.3d at 980.

Burden of Proof

“[I]n reviewing summary judgments, we remain mindful of which party

bears the burden of proof.” Orleans Parish Sch. Bd. v. Lexington Ins. Co., 12-

6

0095, p. 6 (La. App. 4 Cir. 8/28/13), 123 So.3d 787, 790. “Although the burden of

proof on a motion for summary judgment remains with the moving party, the

mover’s burden changes depending upon whether he or she will bear the burden of

proof at trial on the matter that is the subject of the motion for summary

judgment.” Id. As set forth in La. C.C.P. art. 966(D)(1), when the mover will not

bear the burden of proof at trial on the issue that is before the court on summary

judgment, then, “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 essential

elements to the adverse party’s claim, action, or defense.” For the adverse party to

the motion, the burden is then “to produce factual support sufficient to establish the

existence of a genuine issue of material fact or that the mover is not entitled to

judgment as a matter of law.” La. C.C.P. art. 966(D)(1).

In support or opposition of the motion for summary judgment, the only

documents that may be filed are pleadings, memoranda, affidavits, depositions,

answers to interrogatories, certified medical records, written stipulations, and

admissions. La. C.C.P. art. 966(A)(4). Any affidavits filed in support or

opposition must be made on personal knowledge, shall set forth facts as would be

admissible in evidence, and shall show affirmatively that the affiant is competent

to testify to the matters stated therein. La. C.C.P. art. 967(A). In addition,

“[s]worn or certified copies of all papers or parts thereof referred to in an affidavit

shall be attached thereto or served therewith.” Id.

7

When a motion for summary judgment is made and supported as provided

for by law, the adverse party may not rest on the allegations or denials of his

pleadings but must set forth specific facts showing that there is a genuine issue for

trial. Jones v. Estate of Santiago, 03-1424, p. 6 (La. 4/14/04), 870 So.2d 1002,

1007.

Motion for Summary Judgment on the Rule to Remove Trustee

Gloria’s motion for summary judgment sought the dismissal of

Montgomery’s Rule to Remove Trustee and for Restitution of Funds, arguing that

there were no material issues of fact to litigate and she was entitled to judgment as

a matter of law. Gloria’s motion asserts that the clear language of Albert’s will

allows for Gloria, as Trustee, to expend the Trust funds as she sees fit. Moreover,

Gloria argues that Montgomery is estopped—equitably and judicially—from

arguing to the contrary, because Montgomery communicated that position

previously and repeatedly to Gloria, as reflected in Montgomery’s own writings in

full support of Gloria’s right to expend the Trust as she saw fit. Thus, Gloria

argues that Montgomery is unable to carry her burden to show sufficient cause for

the removal of Gloria as Trustee.

In consideration that Gloria’s burden on the motion for summary judgment

is to point out the absence of factual support for one or more elements essential to

Montgomery’s Rule to Remove Gloria as Trustee, we turn briefly to review the

necessary allegations and proof for the removal of a trustee.

8

The removal of a trustee is governed by La. R.S. 9:1789, which states in

pertinent part, “[a] trustee shall be removed in accordance with the provisions of

the trust instrument or by the proper court for sufficient cause.” As interpreted by

Louisiana jurisprudence, “[t]hat statute contemplates more than a mere technical

violation of the Trust Code as grounds for removal of a trustee.” Martin v. Martin,

95-0466, p. 4 (La. App. 4 Cir. 10/26/95), 663 So.2d 519, 521 (citing Curtis v.

Breaux, 458 So.2d 582 (La. App. 3rd Cir. 1984)). Sufficient cause for the removal

of a trustee requires allegations of conflict of interest, hostility, and impairment or

interference with proper administration of the trust. McCaffery v. Lindner, 18-163,

p. 5 (La. App. 5 Cir. 12/27/18), 263 So.3d 1205, 1210. “Mere hostility or

incompatibility between the trustee and a beneficiary is not sufficient grounds for

removal; there must be factual allegations that the hostility interfered with or

adversely affected the administration of the trust for it to be a reason for removal.”

Fertel v. Brooks, 02-0846, p. 10 (La. App. 4 Cir. 9/25/02), 832 So.2d 297, 304.

In this case, the Trust established in Albert’s will does not include provisions

for the removal of the Trustee. But Montgomery argues there is sufficient cause to

remove Gloria as Trustee based on several alleged instances that Gloria improperly

expended Trust assets to the detriment of the Trust’s beneficiaries and in violation

of the terms of the Trust.4 As to the terms of the Trust violated, Montgomery

4

The Rule to Remove filed by Montgomery alleges the following specific acts as violations of

Gloria’s duties to the Trust and the beneficiaries:

 Taking $91,000 from the Trust to make 13 monthly payments of $1000 each to Cindy,

Donna, Montgomery, and Chris’s four children.

 Discharging the $182,312.31 judgment in favor of Albert’s estate in settling the litigation

against Sandy.

9

points only to the following language in Albert’s will: “Gloria shall have the right

to invade the corpus balance if, when and to the extent necessary to maintain her

present standard of living and well-being, and maintenance of her home.”

Montgomery asserts that this language clearly limits Gloria’s right to invade the

corpus/principal of the Trust and does not allow her an “unfettered” right to expend

the Trust assets as she desires. Montgomery stands on this assertion as an essential

element of her claim that Gloria has impaired or interfered with the proper

administration of the Trust and should be removed for sufficient cause.

The exact language of the Trust cited by Montgomery is the same relied

upon by Gloria to argue for the dismissal of the Rule to Remove in her motion for

summary judgment. The cited language, found in paragraph 13 of Albert’s will, is

the only statement regarding Gloria’s explicit right to use the Trust for its duration,

i.e., Gloria’s lifetime.5 In her memorandum in support of summary judgment,

Gloria contends that the family had discussed the terms of Albert’s will and the

Trust over the years since Albert’s death in 2000, and that all family members,

including Montgomery, agreed that the language allows Gloria the right to use the

Trust funds however she saw fit. In addition, Gloria asserts that, from the time the

 Paying $159,057.34 to herself for the claims she, individually, held in the litigation

against Sandy, which were settled and discharged.

 Taking $10,000 to pay Gloria’s income taxes.

 Spending $13,000 on the lease of a Cadillac.

 Spending $17,900.94 on renovations to the family home.

 Failing to collect a $37,500 debt to the estate from her son-in-law, Greg Rodriguez,

before it prescribed.

 Paying attorneys’ fees from the Trust to pay for the litigation against Sandy and the

instant litigation.

5

Notably, the first sentence of that paragraph expresses Albert’s “suggest[ion]s” that Gloria

make $4,000 monthly payments to herself from the Trust, “if necessary, out of the principal”,

without any directive as to how to use those funds.

10

Trust was established in 2000 until 2016, Montgomery told Gloria repeatedly that

the terms of Albert’s will and the Trust provided Gloria with the right to use and

expend the Trust assets as she saw fit. Based on the language of the Trust and her

own reliance on Montgomery’s previous statements and advices supporting

Gloria’s right to expend the Trust funds, Gloria argues that Montgomery is

estopped from now arguing that Gloria’s use of the Trust funds is cause for her

removal as Trustee.

In support of her motion, Gloria introduced affidavits from, among others,

herself and Christy Bergeron, an attorney with the Reiss Firm during the time

Montgomery also worked there.6 In her own affidavit, Gloria attests to the factual

background information regarding the family, the promissory note due by Sandy to

Albert’s estate and Gloria, and the Sandy Pittman litigation that resulted in Sandy’s

renunciation of Albert’s estate. Gloria also attests that during the time of the

litigation, Montgomery worked at the Reiss Firm and recommended to Gloria that

she retain the Reiss Firm to represent Gloria and the estate in the Sandy Pittman

litigation. In addition, she attests to the following facts regarding her use of the

Trust assets, her accountings, and Montgomery’s awareness and advice to Gloria

regarding the use of the Trust assets:

 In early 2016, I decided to distribute $7,000 of Trust assets each month to

the principal beneficiaries of the Trust.

6

Gloria also introduced affidavits from three of the four children of Chris Pittman. In each

affidavit, Rachel, Jonathan, and Christopher attests to receiving $1,000 monthly checks from

Gloria in 2016 and 2017; that each receives and reviews annual Trust accountings; that each do

not have any issue with the distributions reflected in those accountings; and that each disagrees

with Montgomery’s filing of the Rule to Remove, her efforts to remove Gloria as Trustee, and

the relief sought.

11

 I then gifted the $7,000, via $1,000 checks, to Donna Pittman Velez,

Cynthia Pittman Rodriguez, and Montgomery.

 Chris Pittman’s children, … also each received a $1,000 check from me.

 I submit annual Trust accountings to all of the Trust beneficiaries.

 Each distribution from the Trust is reflected in the Trust accountings and

on the Morgan Stanley End of Year Statements.

 In late 2016, after I began distributing $7,000 of the Trust assets each

year, Montgomery began requesting information and details regarding the

Trust.

 Montgomery had not, before late 2016, questioned my use of the Trust

assets.

 Montgomery repeatedly told me that I could use the Trust assets for

whatever I wanted.

 Montgomery repeatedly told me that I could spend all of the Trust assets.

 Because Montgomery was an attorney, I relied on her advice about my

right to use the Trust assets for whatever I wanted.

 Without Montgomery’s advice regarding my right to spend the Trust

funds, I would have conducted myself differently.

In Ms. Bergeron’s affidavit, she attests to the following pertinent facts:

 [The Reiss Firm] is in possession of the entire file related to Albert E.

Pittman and the disputes over his estate.

 On March 3, 2010, Montgomery edited an Opposition to Rule for an

Accounting and for the Removal of Trustee filed by Sandra Pittman. A

copy of the March 3, 2010 revisions is attached hereto as Exhibit “H.”

[“2010 Opposition”]

 In December 2009, Montgomery drafted a File Memo regarding the

Pittman litigation. A copy of the December 2009 File Memo is attached

hereto as Exhibit “L.” [“2009 File Memo”]

 These records were made and kept in the course of regularly conducted

business activity.

12

Ms. Bergeron further attests that the records attached to her affidavit met the

requirements for the business records exception to the hearsay rule. See La. C.E.

art. 803(6).7

The 2010 Opposition that Ms. Bergeron attests to being edited by

Montgomery, was prepared in connection with the Sandy Pittman litigation, who at

that time had filed a Rule for an Accounting and for Removal of Trustee [Gloria]. 8

As highlighted in Gloria’s motion for summary judgment, the 2010 Opposition

reflects “tracking” or “redline” changes to the following statements:

 What when A.E. Pittman intended and specified in the trust

instrument is that his wife, Gloria Pittman, could do almost anything

as she wished, includinganted to do , items that could be considered

wrongdoing in another type of trust is unconscionable.

 The only personperson that can be removed can be removed as the

trustee is the trustee, Gloria Pittman; however, there is no legal or

factual basis for her removal. These scurrilous allegations—

without one shred of fact or evidence –warrant dismissal of the

Rule.

 Gloria Pittman was named the income beneficiary of Trust A and Trust

B, with the four children as principal beneficiaries, and she was

specifically given the right to invade the principal of Trust A and Trust

B.

7

La. C.E. art. 803(6) provides, in part, that “[a] memorandum . . . made at or near the time by, or

from information transmitted by, a person with knowledge, if made and kept in the course of a

regularly conducted business activity, and if it was the regular practice of that business activity to

make and to keep the memorandum . . . all as shown by the testimony of the custodian or other

qualified witness, unless the source of information or the method or circumstances of preparation

indicate lack of trustworthiness.” Ms. Bergeron attested that the records “were made and kept in

the course of regularly conducted business activity”; “are ones that are routinely made and kept

in the course of business, in the firm’s usual practice”; “were made at or near the time of the

event that it records”; and “were made by a person with knowledge or from information

transmitted by a person with knowledge, and who reported such knowledge in the regular course

of business.”

8

As noted infra, Montgomery does not dispute that she edited the document in March 2010 and,

in her opposition, she attests to and attaches a correspondence between herself and Ms. Bergeron

affirming that she did make changes to the 2010 Opposition.

13

In addition to the above edited statements, the 2010 Opposition contained the

following statements without edits or comment:

 Further, the beneficiaries were aware that Gloria Pittman receives a

distribution each month equal to the income generated on Trust A and

Trust B; and, that Gloria Pittman can invade the principal as she wants,

as per the express terms of the Trust Agreement, although she has not

invaded the “principal” for years.

 Given that Gloria Pittman had unfettered authority to invade the principal

of Trust A and Trust B and the trust records have always been open and

available for review by any beneficiary, the annual accountings had less

relevance than in a trust wherein the trustee had to preserve the principal.

The 2009 File Memo that Ms. Bergeron attests to being drafted by

Montgomery, discusses “the family tree, the litigation, and the background leading

up to” the Sandy Pittman litigation.9 In providing family history, the following

statement describes the Trust established in Albert’s will:

 The Trust—Al’s will made specific bequests, and left the remainder of

his property to Gloria and the four children in trust. Gloria has usufruct

of the trust, including the right to invade the principal.

Gloria argues that the two written records, which Ms. Bergeron

authenticated and attests to being Montgomery’s work, provide factual evidence

that Montgomery knew of and promulgated the position that Albert’s will clearly

stated his intent that Gloria had the right to invade the principal and use the Trust

assets as she saw fit. Further, she argues that Montgomery is precluded from now

raising and arguing a completely contrary position as to the intent of Albert’s will

and Gloria’s right to use the Trust under the doctrine of equitable estoppel.10

The doctrine of equitable estoppel is defined by the Louisiana Supreme

Court as follows:

9

As noted infra, Montgomery does not affirm or deny that she drafted the 2009 File Memo.

10

Gloria also argues that Montgomery is judicially estopped from raising this position in her

Rule to Remove. Upon review, however, we find the theory of judicial estoppel inapplicable; the

record reflects no trial court judgment in the Sandy Pittman Litigation regarding Gloria’s right to

use the Trust or a finding on Albert’s testamentary intent.

14

‘[T]he effect of the voluntary conduct of a party whereby he is

precluded from asserting rights against another who has justifiably

relied upon such conduct and changed his position so that he will

suffer injury if the former is allowed to repudiate the conduct.’ This

Court has further held that the three elements required for application

of equitable estoppel are: (1) a representation by conduct or work; (2)

justifiable reliance thereon; and (3) a change of position to one’s

detriment because of the reliance.

Morris v. Friedman, 94-2808, pp. 8-9 (La. 11/27/95), 663 So.2d 19, 25. (internal

citations omitted).

Gloria contends that she has satisfied all three elements for the application of

equitable estoppel: (1) Montgomery made a representation by conduct and work by

editing the 2010 Opposition and drafting the 2009 File Memo in which both state

repeatedly that Gloria has the right to invade the principal of the Trust, as intended

and specified in Albert’s will; (2) Gloria attested that she relied on Montgomery’s

conduct and repeated statements to her that Gloria had the right to use the Trust as

she saw fit, and her reliance was justifiable given Montgomery’s position as an

attorney at the firm representing Gloria and Albert’s estate and as a Trust

beneficiary and family member; and (3) Gloria attested that she would have

conducted herself differently if Montgomery had ever stated the contrary position

she now asserts. Gloria thus argues that equitable estoppel applies here to preclude

Montgomery from asserting the contrary position as the cause for her Rule to

Remove Gloria as Trustee. In addition, based on the clear language of Albert’s

will and Trust, as supported by Montgomery in word and conduct for 16 years,

Gloria argues that Montgomery will be unable to carry her burden of proof to show

sufficient cause for her removal as Trustee, and, consequently, Gloria argues she is

entitled to summary judgment as a matter of law and the dismissal of the Rule to

Remove.

15

In opposing Gloria’s motion, Montgomery argues that there are genuine

issues of material fact that preclude summary judgment. She asserts that the

language of Albert’s will and the Trust is clear and unambiguous that Gloria does

not have the unfettered right to invade the principal of the Trust. Moreover, she

argues that a determination of Albert’s intent in drafting the will is necessary to

resolve the dispositive issue of whether Gloria has such a right, and that such

determination is inappropriate for summary judgment. Montgomery also argues

that the doctrine of equitable estoppel is inapplicable here and, thus, cannot serve

as a basis for summary judgment.

In support of her opposition, Montgomery introduced her own affidavit with

attachments, including an email correspondence between herself and Ms. Bergeron

on March 3, 2010. In her affidavit, Montgomery addressed Gloria’s affidavit by

attesting that she never told Gloria that she could use the Trust assets for any

purpose; never told Gloria she could spend all of the Trust assets; and never told

Gloria that she could invade the corpus of the Trust. Montgomery further attests

that she was employed at the Reiss Firm from December 2008 through February

2013, but she did not represent Albert’s estate or Gloria in the Sandy Pittman

Litigation. As to Ms. Bergeron’s affidavit, Montgomery attests, in pertinent part,

as follows:

 Concerning the March 3, 2010 pleading cited in … Christy Bergeron’s

affidavit, Exhibit H:

o There were times the Sandra Pittman lawsuit when either Michael

Reiss or Christy Bergeron would ask Affiant to check their work

and facts for accuracy, particularly to familial relationships and/or

events underlying the lawsuit filed by the Trustee against Sandra

Pittman.

o Affiant has no independent recollection of editing either

memorandum attached as Exhibit H.

16

o There is an email [attached to Montgomery’s affidavit] dated

March 3, 2010 to Christy Bergeron from Affiant that states:

“I’m just fleshing out the relationships of [S]andy and the kids in[]

the very beginning, adding quotes [from] the power of attorney to

show it’s limited to Al’s succession & including it as an exhibit;

and the other facts you asked about: when Al & Gloria were

married, the fact that Sandy is a stepdaughter, etc. You can delete

them all if you’d like .. Hope I’m not over stepping …”

o Pursuant to [email] above, it is possible that Michael Reiss or

Christy Bergeron asked Affiant to check their work and facts for

accuracy in the memoranda.

Notably, in her affidavit, Montgomery did not make any attestations regarding the

2009 File Memo, which Ms. Bergeron attests to being drafted by Montgomery.

Montgomery’s motion and affidavit do not affirm or deny that she edited the 2010

Opposition or drafted the 2009 File Memo. In addition, Montgomery’s motion

does not dispute the authenticity of the documents but objects to their relevance.

At the hearing on the motion for summary judgment, Montgomery’s counsel

argued that the conflicting affidavits raised issues of fact regarding the dispositive

issue of Albert’s intent in establishing the Trust, which cannot be decided on

summary judgment. Gloria’s counsel argued, however, that Montgomery’s own

writing belies the assertion of a dispute as to Albert’s intent in establishing the

Trust, and that Montgomery would be unable to prove her own cause for removal

of Gloria as Trustee.

When questioned by the trial court whether Montgomery can dispute editing

or authoring the 2010 Opposition or the 2009 File Memo or the contents therein,

Montgomery’s counsel argued that testimony is needed to determine context and

that Montgomery stood in a different posture while working at the Reiss Firm than

as she does as Chris’s executrix. Gloria’s counsel countered that Montgomery

stands in the same position now as she did in 2009, as Chris’s executrix

17

representing a Trust beneficiary; but, Montgomery is now raising the same

argument to have Gloria removed as Trustee as raised by Sandy in that litigation,

despite Montgomery’s admitted acts of reviewing and editing the 2010 Opposition,

which clearly states the position that Gloria has the unfettered right to use and

invade the principal of the Trust. Following those final arguments, the trial court

granted the motion for summary judgment in favor of Gloria.

On appeal, Montgomery’s sole assignment of error argues that the trial court

legally erred in granting summary judgment on the question of Albert’s intent in

drafting his will and establishing the Trust. Montgomery argues that a judicial

interpretation of Albert’s intent in writing his will and Trust is necessary to resolve

the dispositive issue of whether Gloria has violated the terms of the Trust, and that

such an interpretation of intent is inappropriate for summary judgment.

Generally, issues pertaining to subjective facts such as intent are usually not

appropriate to a summary judgment determination, in consideration that a question

of intent can involve weighing testimony and evaluating credibility. Thomas v.

Hodges, 10-2637, p. 1 (La. 2/11/11), 54 So.3d 1109. However, as recognized by

the Louisiana Supreme Court in Jones, “summary judgment may be granted on

subjective intent issues when no issue of material fact exists concerning the

pertinent intent.” 02-1424, p. 6, 870 So.2d at 1006 (quoting Smith v. Our Lady of

the Lake Hospital, Inc., 93-25121 (La. 7/5/94), 639 So.2d 730, 751).

When the interpretation of a provision in a will is a dispositive issue, the

fundamental rule, as set forth by La. C.C. art. 1611, states: “[t]he intent of the

testator controls the interpretation of the will. If the language of the testament is

clear, its letter is not to be disregarded under the pretext of pursuing its spirit.”

Courts have found it permissible, however, to “look to extrinsic evidence to clarify

18

ambiguity in a will.” Succession of Henderson, 50,475, pp. 5-6 (La. App. 2 Cir.

2/24/16), 191 So.3d 9, 13.

In this case, the trial court did not provide oral or written reasons for

granting the summary judgment in favor of Gloria. However, from a review of the

hearing on the motion, the trial court considered the evidence in terms of whether

there was an expressed unified position on Albert’s intent and Gloria’s use of the

Trust assets. In granting the summary judgment, the trial court determined that

there were no genuine issues of material fact to litigate as to the Rule for Removal

and that Gloria was entitled to a judgment dismissing the Rule for Removal as a

matter of law.

Based on our de novo review of the motion for summary judgment, we find

that Gloria carried her burden of proof to show an absence of factual support for

the elements necessary to Montgomery’s action for removal of Gloria as Trustee,

and that Montgomery failed to produce factual support sufficient to establish a

genuine issue of material fact as to a cause for removal of Gloria as Trustee.

Gloria has put forth undisputed evidence that Montgomery previously, until the

filing of the Rule to Remove, knew and approved of the position—held by Gloria

as Trustee and representative of the estate—that Gloria had the right to expend the

Trust funds as she saw fit and the right to invade the principal for any reason.

Montgomery has not attested or offered any evidence to show that she can rebut

that prior position. By her own affidavit and the attached email correspondence

with Ms. Bergeron, Montgomery admits to reviewing and editing documents “to

check their work and facts for accuracy” pertaining to the Sandy Pittman

Litigation, in which the clearly, repeatedly stated legal position of Albert’s estate

19

and Gloria was that Albert intended for Gloria to have unfettered use the of the

Trust assets during her lifetime, including the right to invade the principal.

Finally, in consideration of the language of the will, we find no ambiguity in

Albert’s intent for Gloria to use the Trust assets as she saw fit during her lifetime.

As noted previously in this opinion, paragraph 13 of Albert’s will provides the

only language offering “suggest[ion]s” for the use of the Trust as well as providing

Gloria an explicit right of use. Albert’s suggestion that Gloria make $4,000

monthly payments to herself from the income interest and, if necessary, out of the

principal does not provide any parameters on how such funds are to be used. And

the key disputed statement that follows his suggestion of the $4,000 monthly

payments allows for Gloria to have access to all Trust funds necessary “to maintain

her present standard of living and well-being” (emphasis added). When combined

with the documentary evidence introduced at the motion for summary judgment,

we find no genuine issue of material fact to be litigated on the Rule for Removal.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting

summary judgment in favor of Gloria and dismissing Montgomery’s Rule for

Removal and for Restitution of Funds.

AFFIRMED

20