Darnelle Bordelon Arceneaux v. Bryan David Arceneaux

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

r- NO. 2022 CA 0814

A/ DARNELLE BORDELON ARCENEAUX

VERSUS

BRYAN DAVID ARCENEAUX

CONSOLIDATED WITH

NO. 2022 CA 0815

DARNELLE BORDELON ARCENEAUX

VERSUS

BRYAN DAVID ARCENEAUX

Judgment Rendered. APR 0 3 2023

Appealed from the
17th Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
Case No. C135630, 137974, Division C

The Honorable Marla M. Abel, Judge Presiding

Claude F. Reynaud, Jr. Counsel for Plaintiff/Appellant
David Marshall Charlton Darnelle Bordelon Arceneaux
Jeanne C. Comeaux Hargroder
Danielle L. Borel
Baton Rouge, Louisiana

Gregory E. Bodin Counsel for Defendants/ Appellees
David G. Bayard Bryan D. Arceneaux, Colby D.
Baton Rouge, Louisiana Arceneaux and Jean Pierre
Arceneaux

Alan W. Stewart Counsel for Defendants/ Appellees
James H. Gibson Todd M. Villarrubia, Todd M.
Lafayette, Louisiana Villarrubia APLC and WPLG
Trust Protectors, LLC

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

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THERIOT, J.

In this suit for declaratory and injunctive relief, the plaintiff has appealed the

trial court judgment on the merits after a bench trial, as well as the trial court' s

prior judgment denying her motion for summary judgment. For the reasons set

forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Darnelle Bordelon Arceneaux (" Sammy" )' and Bryan David Arceneaux

were married on June 13, 1987. The parties created a number of companies during

their marriage (" Arceneaux companies"), which produced substantial earnings. In

the summer of 2016, Bryan and Sammy met with a New Orleans attorney and

estate planner, Todd Villarrubia, to discuss estate planning, including the possible

benefits associated with the creation of a trust. Over the next few months,

Villarrubia developed an estate plan for the parties to accomplish their goals of

asset protection, minimiz[ ing] estate taxes[,] and maintain[ ing] control of assets."

On September 21, 2016, Mervatt F. Eljaouhari, an associate in Villarrubia' s firm,

sent an engagement letter to Bryan and to the parties' adult son, Colby, 2 for their

approval and signature. The engagement letter outlined the estate plan Villarrubia

developed and the services to be provided by the firm, including, among other

things, the creation of a Delaware dynastic generation -skipping trust for Bryan and

Sammy, recapitalization of the ownership of several of the Arceneaux companies

into a small number of voting interests and a much larger number of non-voting

ownership interests, and execution of Acts of Donation, Acts of Sale, and

promissory notes to transfer the non-voting ownership interests in the Arceneaux

companies to the Delaware trusts. The engagement letter further advised that "[ a] 11

Donations and Sales need to be completed prior to 12/ 31/ 16 to avoid the new

Sammy has remarried since this suit was filed and now goes by Sammy Hargroder.

Villarrubia was simultaneously preparing a similar estate plan for Colby and his wife, Morgan.

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Treasury Regs eliminating discounts for lack of control and marketability[.]"

Although the engagement letter was addressed to Bryan and Colby and required

signatures from both, only Colby signed and returned the engagement letter. The

engagement letter was not addressed to Sammy,' and there was no signature line

for her.

On October 10, 2016, Bryan and Sammy executed an agreement ( the

Delaware trust agreement") prepared by Villarrubia' s firm to create a Delaware

trust named " The Bryan D. Arceneaux and Darnelle B. Arceneaux Irrevocable

Trust" ( the " Delaware trust").' The Delaware trust agreement designated the

parties'
children, Colby and Jean Pierre, as beneficiaries of the trust; Advocates

Trust Services as administrative trustee; and WPLG Trust Protectors, LLC

WPLG" )5 as trust protector. Schedule A to the Delaware trust agreement listed

Ten Dollars Cash" as the property Bryan and Sammy agreed to transfer to the

Delaware trust.

In addition to Bryan and Sammy, the Delaware trust agreement was also

executed by Colby, Jean Pierre,6 and Villarrubia ( as managing member of WPLG)
on October 10, 2016. The agreement was not signed by Advocates Trust Services

at that time, as Villarrubia' s procedure for creating foreign trusts was to obtain all

other necessary signatures and then send the executed documents to the

administrative trustee for approval and signature. To that end, the signature page

of the Delaware trust agreement for Bryan and Sammy provided: " This

Irrevocable Trust Agreement is effective when signed by us, whether or not now

signed by a Trustee." After the Delaware trust agreement was sent to Advocates

Trust Services for approval and signature, Villarrubia began to reconsider his

i The engagement letter appears to have been mailed to a business address for the Arceneaux companies.

a Although there is no dispute that Bryan and Sammy both signed the Delaware trust agreement, there is conflicting
testimony about whether it was signed by all parties in the presence of a notary and two witnesses.

s WPLG is an entity created by Villarrubia to serve as trust protector in irrevocable trusts he set up for his clients.

The authenticity of Jean Pierre' s signature is also disputed.

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decision to use Advocates Trust Services due to a change in how their fees were

calculated, and his firm began researching other possible Delaware administrative

trustees in an attempt to find a more reasonable alternative. In early November,

Villarrubia' s search identified a potential administrative trustee, Premier Trust,

Inc., located in Las Vegas, Nevada. Villarrubia and Eljaouhari discussed the idea

of changing the Delaware trust to a Nevada trust with Bryan and Colby, who

approved the change. Villarrubia' s firm proceeded with creating a Nevada trust

with Premier Trust as the administrative trustee, and the Delaware trust agreement

was never signed by Advocates Trust Services or any other administrative trustee.

The Delaware trust agreement signed by the parties authorizes the trust

protector, WPLG, to change the governing law or situs of the administration of the

trust. The procedure for doing so is set forth in Section 15. 04 of the Delaware trust

agreement, which provides: "[ t]he Trust Protector may elect, by filing an

instrument with the trust records, that the trust will then be construed, regulated,

and governed by the new jurisdiction' s laws." However, WPLG never filed an

instrument with the trust records. Rather than utilizing this provision, Villarrubia' s

firm prepared a new trust agreement ( the " Nevada trust agreement"), which was

also dated October 10, 2016 and almost identical to the Delaware trust agreement

executed by the parties, except that it stated that the parties agreed to create a

Nevada trust, governed by Nevada law, with Premier Trust as the administrative

trustee ( the " Nevada trust"). It does not appear that the Nevada trust agreement

was ever sent to Bryan, Sammy, Colby, Jean Pierre, or Villarrubia to sign.

On December 1, 2016, Eljaouhari emailed a trust application to Premier

Trust to create a Nevada trust with the same name as the parties' Delaware trust:

The Bryan D. Arceneaux and Darnelle B. Arceneaux Irrevocable Trust." The

trust application provided by Eljaouhari contained only typewritten information

about the parties and the trust and did not require any signatures. Attached to the

I

trust application was the Nevada trust agreement, including signature pages for

Bryan, Sammy, Colby, Jean Pierre, and Villarrubia that appear to be photocopies

of the October 10, 2016 notarized signature pages from the Delaware trust

agreement.' The Nevada trust agreement was signed and accepted by Premier

Trust as administrative trustee on December 15, 2016.

On December 1, 2016, Bryan and Colby executed a number of documents

prepared by Villarrubia' s firm as part of Villarrubia' s estate -planning strategy,

reorganizing certain Arceneaux companies and adopting or amending the operating

agreements for certain Arceneaux companies. Bryan and Colby signed these

documents in their capacities as officers or members of the Arceneaux companies,

and Sammy was not involved in these transactions.

On December 27, 2016, Bryan and Sammy went to Villarrubia' s office

together and signed nine documents, including acts of donation and sales, which

transferred certain community assets to Premier Trust as trustee of "The Bryan D.

Arceneaux and Darnelle B. Arceneaux Irrevocable Trust." The acts of donation

further identified the trust as " a Nevada inter vivos trust."

Sammy alleges that over the next eighteen months of the parties' contentious

marriage, she gradually learned that Bryan had retained management and control

of nearly all of their community property via the 1% voting interest in the

Arceneaux companies and had been using that managerial control for his sole

benefit, and to the detriment of the Arceneaux companies.

In September 2017, Sammy filed a petition for divorce, which she later

dismissed when the parties briefly reconciled. Sammy filed a new petition for

divorce on May 21, 2018 ( the " divorce suit"), and the parties were divorced by a

judgment dated December 20, 2018.

Eliaouhari' s email submitting the trust application noted that she was still waiting for the grantors' executed
Personal Information Form (" PIF") and fee agreements. Although it is not clear exactly when these documents were
submitted to Premier, the record reflects that Sammy' s PIF was executed on December 2, 2016, and the parties'
signed fee agreement was executed on March 3, 2017.

0

During the course of the divorce proceedings, Sammy requested a copy of

the parties' trust documents from Villarrubia' s firm. After several requests, an

employee at Villarrubia' s firm sent her a copy of the Delaware trust agreement,

and upon review of the agreement she noticed that her signature on the document

had been subsequently signed by a notary and witnesses outside of her presence.

Months later, Villarrubia' s office sent her a copy of the Nevada trust agreement,

including the photocopied signature pages belonging to the Delaware trust

agreement.

Following her receipt of the Nevada trust agreement and discovery of the

existence of the Nevada trust, Sammy filed a separate suit entitled " Verified

Petition to Declare Trust and Ancillary Transactions Null and Void and for

Preliminary and Permanent Injunction" ( the " trust suit"). Named defendants in the

trust suit were Bryan, Colby, Jean Pierre, WPLG, Todd Villarrubia, in his capacity

as managing member of WPLG, and Todd M. Villarrubia, APLC. In the trust suit,

Sammy sought a declaration that the Nevada trust and all transfers thereto were

null and void ab initio because the Nevada trust agreement was never signed by the

parties and the signature pages were simply photocopied from another agreement.

Sammy also sought a declaration that the Delaware trust and any transfers thereto

were invalid and void ab initio because the Delaware trust agreement was not

properly executed by authentic act. She also argued that her consent to the

agreements was vitiated by error or fraud and that WPLG, the trust protector

named in both trust agreements and given " massive powers and responsibilities"

therein, was not a company organized under the laws of any state in the United

States. In addition to a declaration of nullity, Sammy sought preliminary and

permanent injunctions enjoining Bryan and Villarrubia ( as managing member of

WPLG) from " removing community property from the state of Louisiana, selling,

diluting, devaluing, disposing of and/ or encumbering community property, and

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from diverting assets and corporate opportunities from community property

companies to other companies owned by Bryan Arceneaux, until this matter is

finally adjudicated." 8 The trust suit was consolidated with the divorce suit.

On July 2, 2021, Sammy filed a motion for summary judgment on her claims

for declaratory relief, arguing that there are no genuine issues of material fact and

that she is entitled to judgment declaring that the Nevada trust is invalid and of no

force and effect, based on " the total absence of consent to enter into a Nevada trust

agreement." In support of her motion, Sammy filed her own affidavit and the

attachments thereto; excerpts from her deposition and the depositions of

Villarrubia, Eljaouhari, Bryan, Colby, and Connie Bordelon ( witness to the

execution of the Delaware trust agreement), as well as the attachments to the

depositions; and Bryan' s amended discovery responses.

Villarrubia, Todd M. Villarrubia, APLC, and WPLG ( collectively, " the

Villarrubia defendants") filed a memorandum in opposition to Sammy' s motion for

summary judgment and incorporated a " motion to strike" in the opposition. The

Villarrubia defendants did not file any supporting documents with their opposition

to Sammy' s motion for summary judgment. In their motion to strike, the

Villarrubia defendants objected to Sammy' s exhibits filed in support of her motion

on the grounds that they contained parol evidence that should be inadmissible with
9
regard to the unambiguous trust agreement.

Bryan, Colby, and Jean Pierre also opposed Sammy' s motion for summary

judgment, arguing that the existence of the following genuine issues of material

8 The trial court granted Sammy' s request for a preliminary injunction in an April 24, 2019 judgment, which was
later modified pursuant to agreement of the parties.

The use of a motion to strike for this purpose is not appropriate. Louisiana Code of Civil Procedure article
966( D)( 2) requires that any objection to a document filed in support of or in opposition to a motion for summary
judgment shall be raised in a timely filed opposition or reply memorandum. Comment ( k) of the Revision
Comments 2015 to Article 966 states that this " provision changes prior law by specifically removing the motion to
strike as a means of raising an objection to a document offered by an adverse party in support of or in opposition to a
motion for summary judgment and does not allow a party to file that motion." The intent of La. C. C. P. art.
966( D)t2) was to make it mandatory that any objection to a document must be raised in a timely filed opposition or
reply memorandum and not in a " motion to strike" or other pleading. Ramses v. KCJS Trucking, LLC, 2019- 0041, p.
5 ( La. App. 1 Cir. 9127119), 288 So. 3d 869, 874.

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fact precludes summary judgment on the issue of Sammy' s lack of consent to

create a Nevada trust: Sammy desired to create a trust for her sons' benefit;

Sammy met with Villarrubia on three occasions to discuss the trust; Sammy signed

a trust document to create a non -Louisiana trust; the trust document signed by

Sammy gave WPLG the power and authority to change the situs of the trust;

Sammy signed acts of donation and transfers to place property in a trust; and those

acts of donation and transfers referenced " a Nevada inter vivos trust." In support

of their opposition, they filed the following exhibits: Sammy' s petition in the trust

suit, in which she alleged that she met with Villarrubia on three occasions with

regard to estate planning and trusts; Connie Bordelon' s deposition testimony

regarding a conversation she had with Bryan and Sammy about their plans to

create a trust to protect their assets for their sons; Sammy' s deposition testimony

that she understood that she and Bryan were creating a trust to protect their assets

and benefit their sons in the event of their deaths and that the documents she signed

in Villarrubia' s office on December 27, 2016 were in furtherance of that purpose,

even though she was only shown the signature pages for the documents, and seven

individual acts of donation executed by the parties on December 27 and 29, 2016,

in which the appearance clauses identify " The Bryan D. Arceneaux and Darnelle

B. Arceneaux Irrevocable Trust" as " a Nevada inter vivos trust."

A hearing was held on Sammy' s motion for summary judgment on August
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18, 2021. The trial court overruled Villarrubia' s objection to Sammy' s exhibits,

and after arguments by counsel, the trial court denied Sammy' s motion for

summary judgment, finding that the issue of consent is fact -intensive and requires

credibility determinations that are inappropriate for summary judgment.

L0 Although the Villarrubia defendants' objections were not properly raised in accordance with La. C. C. P. art.
966( D)( 2), since the trial court overruled the objections, any error in the consideration of the objections was
harmless.

E

Sammy filed an application for supervisory writs, seeking review of the trial

court' s denial of her motion for summary judgment, which was denied. Arceneaux

v. Arceneaux, 2021- 1340 ( La.App. 1 Cir. 1/ 21/ 22), 2022WL190292 ( unpublished).

Thereafter, a bench trial was held on the trust suit on March 28, 2022. 11

Villarrubia testified at the trial both in his individual capacity as an attorney and as

a representative of the trust protector, WPLG. Villarrubia testified that he met with

Bryan and Colby on two occasions in September 2016. Although Villarrubia

testified that he had little independent recollection of the details of the meetings,

his records contain typewritten notes of the meetings, which he reviewed for his

testimony and which were introduced into evidence at trial.

Villarrubia met with Bryan and Colby on September 13, 2016 to gather

information and discuss estate planning for Bryan and Sammy and for Colby and

his wife. Sammy was not present at this meeting, and Villarrubia testified that he

did not believe that he had met with her yet at that point. The September 13, 2016

meeting notes contain details about the Arceneaux companies, financial matters,

and the parties' estate planning goals. Villarrubia met with Bryan and Colby again

on September 20, 2016 to begin formulating an estate plan for the parties. His

notes from this meeting detail the estate plan and the actions to be taken to execute

it, which were later set forth in. the engagement letter sent by Eljaouhari to Bryan

and Colby. Although the meeting notes also state that Villarrubia' s paralegal

would set up a conference call for him with Bryan and Sammy " to discuss the

design of an updated will, Living Will, General POA & Healthcare POA to protect

their family," as well as an appointment to execute those documents, it is not clear

from the record whether this ever took place.

Although the trust suit was consolidated with the divorce suit, the matters were bifurcated for trial by agreement
of the parties.

10

Villarrubia testified that Eljaouhari, an associate at his firm with three or

four years of experience and an MBA, was the firm' s " responsible attorney" on the

Arceneaux estate planning file. In that capacity, Eljaouhari was " responsible for

overseeing day to day efforts ... of the trust." Although Eljaouhari was involved

in the drafting of the Delaware trust agreement, Villarrubia reviewed and approved

the agreement before it was sent out for signatures. Villarrubia testified that his

whole team met weekly to go through all of their files together, and he was very

comfortable with Eljaouhari handling the Arceneaux matter because she " had done

this with several other clients without any problems."

Villarrubia testified that the estate planning work performed by his firm in

this matter would normally take six months to complete, but due to concern about

impending potential changes in federal estate tax exemption laws, everything

needed to be completed within about three months, by December 31, 2016. Due to

this urgency, Villarrubia primarily communicated with Colby, because he was the

one " spearheading" the estate planning and was very responsive to questions and

gathering necessary documents. Villarrubia also communicated with Bryan, but

less frequently than Colby because Villarrubia knew Bryan was busy. Even

though Villarrubia believed that " in all likelihood" Sammy was also his client, he

did not communicate directly with her. He admitted that he did not explain the

impact setting up the trust would have on her interest in the community property or

discuss the potential change in situs and governing law with Sammy. He explained

that he believed that communicating with the clients was Eljaouhari' s

responsibility.

Villarrubia testified that when setting up irrevocable trusts for his clients, he

typically drafted trust documents to give the trust protector very broad powers in

order to have as much flexibility as possible to make any kind of changes

necessary as the need arises. As an example, Villarrubia explained that the trust

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protector " can change beneficiaries, can move jurisdictions, can change aspects of

the trust, distribution provisions, whatever with the client' s approval of course."

Villarrubia testified that when the cost issue arose with Advocates Trust Services

and he found a reasonable alternative in Premier Trust, he made the change from

Delaware to Nevada after receiving authority from Bryan and Colby. However,

Villarrubia was not sure whether he made the change in his capacity as trust

protector or as the parties' attorney. Despite the fact that Section 15. 04 of the

Delaware trust agreement prepared by his firm provided a procedure for the trust

protector to change the situs and governing law of the trust, Villarrubia testified

that he did not follow that procedure and instead changed the original trust

document to specify a different jurisdiction. Villarrubia opined that as a result of

his actions in changing the trust agreement, a Nevada trust was created, and the

Nevada trust' s existence was retroactive to October 10, 2016, the date the

Delaware trust agreement was signed.

Villarrubia acknowledged that the signature pages attached to the Nevada

trust agreement ( including his own signature) appeared to be the same signature

pages attached to the Delaware trust agreement, but denied any knowledge of how

exactly they came to be attached to a different document. Nevertheless, he

testified that he did not think it was necessary for the parties to sign the Nevada

trust agreement because they had already signed a trust agreement and he " thought

that that was still a valid trust, because we informed Bryan and Colby of the

changes and we assumed they would talk to Sammy about them as well." He

further explained that in his experience, most of the time clients rely on his

guidance about the best structure for the trust and do not care about the situs of the

trust as long as their assets are protected.

Villarrubia testified that Bryan and Sammy came to his office on December

27, 2016 to sign the transfer documents. He testified that his standard practice is to

12

review all documents with clients when they are signing and to pass around each

document ( not just the signature page) as he explains it. As Bryan and Sammy

were signing the transfer documents, he explained what they were doing, i.e.,

donating stock to the trust or selling an interest to the trust. He admitted that he

did not ever explain to Sammy that the Delaware trust had been replaced by a

Nevada trust or that the agreement the parties signed had been replaced by a new

trust agreement with their signatures reused. However, he testified that he referred

to the trust as a Nevada trust when diagramming the transactions to show how

assets were being transferred, Although Villarrubia seems to imply that Sammy

should have been alerted to the fact that a change had been made by references he

made to the parties' trust as a " Nevada trust" while the parties were signing the

transfer documents, he acknowledged that some parts of the transfer documents

prepared by his firm still contained references to Delaware law that were not

caught in the proofreading process.' 2

Eljaouhari testified" that she started working for Villarrubia right after

passing the bar exam in 2013, and was an associate at Villarrubia' s firm for about

three years before leaving the firm. Because she was a new attorney and not yet

eligible to become board certified in estate planning, she shadowed other attorneys

and was responsible for client communication, collecting information, and

assisting with drafting documents. Over time, she gradually began to handle client

meetings, " if it wasn' t something that was too complex," and draft some trust

documents on her own, although she always submitted them to Villarrubia for

approval. Eljaouhari testified that when she worked with married couples on estate

planning matters at Villarrubia' s firm, the protocol was to request that both spouses

12 The two acts of sale executed by Bryan and Sammy on December 27, 2016 each reference a promissory note
attached hereto and made part hereof." Those promissory notes, executed by Premier Trust, state that they are
governed by Delaware law."

Because Eljaouhari was out of the country at the time of trial, the parties agreed to introduce her deposition in lieu
of live testimony_

13

be present at meetings so that they could discuss things and make decisions

together about how to proceed. If the parties disagreed about things or one person

felt uncomfortable, she might suggest that they retain separate counsel. However,

Eljaouhari testified that Villarrubia was the responsible attorney for Bryan and

Sammy' s estate planning because it was a complicated, high net worth matter that

required a tax attorney and was not something she could handle alone. Her role in

this matter was simply to draft documents as instructed by Villarrubia. She denied

that she was responsible for client communications, although she did communicate

with the clients on occasion when she needed additional information or signatures.

She recalled communicating with Bryan and Colby, primarily by email, but she did

not recall ever communicating with or meeting Sammy. She explained that she

assumed that Villarrubia would have communicated with Sammy since he was the

responsible attorney and the one who handled the meetings with the clients.

Nevertheless, she agreed that all parties should have been included in the

communications about estate planning.

After the parties executed the Delaware trust agreement, Eljaouhari worked

with Advocates Trust Services through at least early November, gathering all of

the documents and information they requested in order to review and accept the

assignment as administrative trustee of the Delaware trust. She could not

specifically recall what caused them to begin looking for a different administrative

trustee after the parties executed the trust agreement, but thought that cost might

have been the issue. She also could not recall why they chose an administrative

trustee in Nevada, rather than one in Delaware, but testified that she " definitely

didn' t do it on [ her] own without communicating with the clients." Although she

was not aware of any power of attorney that would allow Colby to act on his

parents' behalf and she testified that she was certain she would have

communicated with " the clients," Eljaouhari did not remember if she discussed the

14

change with Bryan or only with Colby, and she did not know whether any of the

information " trickled down to Sammy." In a November 28, 2016 email to Colby

about possible jurisdictions for the trust, Eljaouhari provided a link to a Dynasty

Trust State Rankings Chart, which compared and ranked the states that permit

dynasty trusts on a number of criteria. Although the chart showed that a Nevada

trust would be protected against divorcing spouses, while a Delaware trust would

not, Eljaouhari testified that she did not know that there was a possibility of

divorce in this case and so she did not consider that as a factor in recommending

the change to Nevada. She acknowledged that " the safest option" when making a

change in trust situs and governing law for a married couple would have been to

inform both spouses of the possible impact on their community property rights, but

testified that she assumed that Villarrubia communicated that information to the

clients.

Once a decision was made to change to a Nevada trust with Premier Trust as

the administrative trustee, Eljaouhari emailed Colby on November 28, 2016,

stating that she would " have all necessary forms sent over to [ him] tomorrow to

make the switch." Eljaouhari testified that she was not sure if it was necessary

under Nevada law that the parties sign the Nevada trust agreement, but she would

have sent it to the parties for new signatures in any event because the document

they had previously signed had been changed. However, due to the hectic nature

of the events surrounding this " last minute switch," Eljaouhari could not say for

certain that she actually sent the Nevada trust agreement to the parties or, if she

did, whether new signatures were ever received from the parties. Eljaouhari

admitted that she might have submitted the Nevada trust agreement to Premier

Trust with the signature pages from the Delaware trust agreement attached " just to

get the ball rolling" on the review process, with the intention of attaching new

signature pages to the Nevada trust agreement at a later date when they were

15

received. However, she did not know whether anyone talked to the parties about

reusing the signature pages in this way.

Sammy testified that in 2016, she and Bryan had conversations about estate

planning in general, and she understood that the goals were to protect their assets

from creditors and minimize estate taxes for the children in the event of their

deaths. She did not recall whether she knew that Bryan and Colby were meeting

with Villarrubia or engaging Villarrubia' s firm to help with the estate planning,

and she never saw the engagement letter detailing the estate planning services to be

provided by the firm. She testified that all she really knew was that they were

going to set up a trust to benefit their children. She did attend one meeting with

Bryan in Villarrubia' s office in either late September or early October of 2016.

She recalled that the meeting was no more than an hour long and they talked about

tax benefits for the children and the urgency of completing everything before the

end of the year. She remembered hearing the word " dynasty" used in reference to

the trust, but did not remember a discussion of different states relative to the trust.

Sammy testified that it did not seem to her that the details of the estate planning

strategy had been worked out at the time of the meeting she attended. Sammy did

not tell Villarrubia that there was a possibility that she would file for divorce at

some point in the future or ask whether there might be any negative consequences

for her as a result of the estate plan and creation of the trust. She explained that the

parties were working on their problems like they always had throughout their

marriage and there was no divorce planned at that time. She testified that she

believed that Villarrubia was her attorney and, since he represented her, anything

he prepared would be favorable to her.

Sammy testified that she signed the Delaware trust agreement on October

10, 2016 in Bryan' s office. According to Sammy, Connie Bordelon14 called her on

14 Bordelon is married to Sammy' s brother and has worked for the Arceneaux companies for many years.

16

that day, asking her to come to Bryan' s office to sign some papers that had to be

mailed out by that night. When Sammy arrived, Bordelon had the signature page

marked with a tab and showed her where to sign, which was typical of how they

normally handled documents requiring Sammy' s signature. She testified that she

also signed Jean Pierre' s name on his signature page, since he was in school and it

was an urgent matter. Sammy testified that when she signed the document, only

Bordelon was present, and she did not take the document to the notary' s office to

be notarized.

Sammy testified that she had no knowledge of the Nevada trust agreement

being prepared or the creation of a Nevada trust. No one ever talked to her about

changing the Delaware trust to a Nevada trust after the Delaware trust agreement

was signed.
No one told her about a new trust agreement being prepared or asked

her about reusing her signature on a new agreement, and she was not provided a

copy of the Nevada trust agreement submitted to Premier Trust. Sammy did not

receive any communication from or even know anything about Eljaouhari until

Eljaouhari' s deposition was taken in connection with this suit. Sammy also had no

knowledge of the December 2016 transactions by which Bryan and Colby

reorganized or recapitalized certain Arceneaux companies as part of the estate

planning strategy developed by Villarrubia.

Sammy testified that at the end of December 2016, she received a last-

minute call that she needed to hurry and go to Villarrubia' s office " because it was

the end of the year and they were trying to get all this stuff finished up for the trust

before the end of the year ... for the companies to receive benefits on taxes or

whatever." She recalled that when she went to Villarrubia' s office on December

27, 2016 as instructed, Villarrubia sat across from her and Bryan and two other

gentlemen with a stack of papers to his left that needed to be signed. Sammy

recalled that when Villarrubia picked up the first document, he noticed an error or

17

something that needed to be changed, so he called in a paralegal or assistant and

asked her to make changes to the document. Villarrubia kept the signature pages

separate from the document and passed them around for Bryan and Sammy to sign

while the corrections were being made. Sammy testified that the majority of the

documents ended up needing correction, and Villarrubia continued to pass around

signature pages without the rest of the document attached. Villarrubia did not

explain the documents being signed, and there was nothing on the signature pages

given to her for signature that gave her any information about the substance of the

documents. All she knew was that the documents were necessary for the trust and

had to be signed by the end of the year. She testified that she trusted Villarrubia as

her attorney, so she signed the pages he asked her to sign. Throughout this

process, Sammy believed that the trust being discussed was the Delaware trust they

had signed documents for in October, because that was the only trust agreement

she had ever signed, no one had ever talked to her about changing the Delaware

trust to a Nevada trust, and nothing she saw that day in Villarrubia' s office alerted

her to the existence of a new trust.

Bryan testified" that he and Sammy had multiple discussions regarding the

trust prior to its execution on October 10, 2016, although he did not provide details

about the substance of these discussions. Brian testified that he and Sammy

executed the Delaware trust agreement on October 10, 2016, in the presence of

notary Sheila St. Pierre and two witnesses. He also saw Jean Pierre sign the

agreement, but could not recall if the witnesses were present at the time. Bryan

testified that at some point after the parties signed the Delaware trust agreement,

Villarrubia " started talking about the Nevada Trust being a better trust due to some

reasons." However, Bryan could not remember exactly when this occurred or why

Villarrubia recommended changing to a Nevada trust. Nevertheless, he testified

Some of Bryan' s trial testimony was entered into the record in the form of stipulations.

18

that he never received a signature page to sign for the Nevada trust agreement.

Although he seemed to have been aware of the change to a Nevada trust, Bryan

testified that when he went to Villarrubia' s office on December 27, 2016 to sign

the transfer documents, he never noticed that some of the documents still contained

references to Delaware law.

Colby testified that Sammy and Morgan were not included in the September

meetings with Villarrubia because a lot of the discussion concerned the Arceneaux

companies, including the need for recapitalization or reorganization of the

companies,
and Sammy and Morgan were not involved in the operation of the

Arceneaux companies. Although Sammy was not present when the details of the

estate planning strategy were being discussed, Colby testified that at some point

prior to the execution of the Delaware trust agreement, he had a discussion with

her about the nature of the estate plans and the plans for the trust. He testified that

she asked a number of what he considered to be " normal questions" in the nature

of "Who controls what? Where' s the value? What happens if this or this does not

happen?" He also recalled that he mentioned the need to reorganize or recapitalize

the Arceneaux companies to Sammy. During their discussions prior to the

execution of the trust, Sammy never mentioned that she did not understand or was

not in favor of what was going on. He also recalled one meeting he had with

Villarrubia to discuss estate planning and trusts where Sammy was also present,

but testified that no details of the estate planning strategy had been decided at that

point.
Colby was not present when his parents executed the Delaware trust

agreement, as he signed before a different notary close to his home. Colby recalled

another discussion with Sammy, which took place in the summer of 2017 after all

of the trust transactions had been completed, where she asked him questions about

the details of the trust, such as how she was protected in a liquidity event and what

would happen to the money. Although at the time, Colby thought these were

19

normal questions, he later came to believe that her questions were prompted by her

plans to file for divorce.

Colby testified that he was involved in the decision to change the situs of the

trusts ( both his own and his parents') to Nevada. He discussed the choice of

jurisdiction with both Eljaouhari and Villarrubia and also did his own due

diligence. He testified that a number ofjurisdictions were considered for the trusts

based on several variables, including duration, whether perpetual trusts were

allowed, and state income tax. Villarrubia' s firm ultimately recommended Nevada

as the situs for the trusts, and Colby accepted their recommendation. His

recollection was that Nevada was determined to be preferable to Delaware due to a

material difference in the fees charged by the administrative trustee and preferable

to other jurisdictions because there was no state income tax in Nevada. After the

decision was made, Eljaouhari sent him an email on November 28, 2016, stating

that she would " have all necessary forms sent over to [ him] tomorrow to make the

switch;"
however, Colby did not recall receiving anything from her in that regard,

nor did he recall ever signing a new trust agreement for his own trust or his

parents' trust or being asked for permission to reuse his signature page. Although

Colby was copied on Eljaouhari' s December 1, 2016 email transmitting the trust

application and Nevada trust agreement ( with photocopied signature pages) to

Premier Trust, it is unclear from his testimony whether he noticed at that time that

the signature pages to the Nevada trust agreement were photocopies. In any event,

he testified that he did not realize the lack of original signatures on the Nevada

trust agreement was an issue until the trust suit came about and did not ask anyone

about it.

Mark Drescheler, chairman, CEO, and president of Premier Trust, testified

at the trial via Zoom. Premier Trust received the trust application and Nevada trust

agreement by email from Eljaouhari on December 1, 2016. Drescheler testified

20

that these documents were sent for Premier Trust' s review from an administrative

perspective, to decide whether to accept the appointment as administrative trustee.

The trust application was ultimately accepted, and Premier signed and returned the

trust agreement on December 15, 2016. Drescheler testified that Premier Trust

does not require that original trust documents be submitted and does not review

trust documents to determine whether the signatures are original to that particular

document; however, he testified that they do not accept trust documents for review

that have not been signed by the grantors. Further, Drescheler testified that if

Premier Trust had known that the signature pages of the Nevada trust agreement

submitted by Eljaouhari for review and acceptance were taken from the Delaware

trust agreement, they would not have accepted the appointment as administrative

trustee.

Sheila St. Pierre, the Louisiana notary who notarized Bryan, Sammy, and

Jean Pierre' s signatures on the Delaware trust agreement, testified that all three

parties signed the document in her office, in her presence and in the presence of the

two witnesses. Although St. Pierre did not keep records about documents she

notarized or fees charged, she estimated that she had notarized between five

hundred and one thousand documents for the Arceneaux companies over the years.

Nevertheless, she testified that she specifically recalled this particular occasion.

However, St. Pierre' s recollection of some of the details in this matter, such as who

was present or the day of the week or time of day the parties appeared, differs from

other witnesses and appears to be inaccurate. St. Pierre was questioned about

allegations that she sometimes notarized documents for the Arceneaux companies

without the signatories present. While St. Pierre acknowledged that she sometimes

notarizes " trivial transactions" without seeing all of the signatories and witnesses

sign, she testified that she considered this authentic act to be important and she was

certain that Sammy signed it in her presence because she specifically recalled

21

seeing her on that day. Although she did not review the document she notarized on

October 10, 2016 and therefore could not say whether it was a Delaware or Nevada

trust agreement, she denied ever notarizing a second trust agreement on a different

occasion for the parties.

Bryan and Sammy' s younger son, Jean Pierre, testified at trial regarding the

circumstances of the execution of the Delaware trust agreement. Jean Pierre

testified that in the fall of 2016, his parents talked to him about forming a trust that

would benefit him and Colby in the event of their deaths, On October 10, 2016,

his mother asked him to drive to St. Pierre' s office from school to sign a trust

document. When he arrived, Bryan and Sammy were both in St. Pierre' s office

with St. Pierre. Jean Pierre could not recall whether he saw the witnesses, Connie

Bordelon and Danielle Cheramie, at any point while he was at St. Pierre' s office

signing the Delaware trust agreement. Although Jean Pierre could not recall

whether he actually saw the whole document or just a signature page, he

understood that he was signing a trust document on that date.

Connie Bordelon testified that she has worked for Bryan at one of the

Arceneaux companies since 1998 and has been married to Sammy' s brother for

forty years. Bordelon knew from conversations with Bryan and Sammy that they

were discussing estate planning and putting their assets into a trust to protect their

assets and benefit their children in the event something happened to them. On

October 10, 2016, Bordelon and a coworker, Danielle Cheramie, drove to St.

Pierre' s office at Bryan' s request and signed the Delaware trust agreement as

witnesses to the signatures of Bryan, Sammy, and Jean Pierre. Bryan and Sammy

were both already present in St. Pierre' s office when she and Cheramie arrived,

although she did not specifically recall whether she actually saw them sign the

agreement. Although she and Cheramie also signed as witnesses to Jean Pierre' s

signature, Bordelon did not see Jean Pierre while she was in St. Pierre' s office.

22

Bordelon testified that Sammy told her that Jean Pierre was on his way there from

school, so she signed his signature page and left before he arrived, Bordelon

denied ever being asked to sign a second trust agreement. Other than in the case of

Jean Pierre' s signature to the Delaware trust agreement, Bordelon denied signing

as a witness on documents that had to be notarized without actually observing the

person sign.

Sammy' s sister, Rachel Turchin, testified about her experience with

witnessing signatures as an employee at one of the Arceneaux companies,

Although Turchin was not involved in the signing of the Delaware trust agreement,

she testified that during her employment from 2007 to 2016, she was frequently

called upon to sign documents as a witness. According to Turchin, she and other

employees were regularly approached by Bordelon and presented with blank

signature pages and instructed to sign as a witness, with the other signatures to be

added later. Turchin testified that even though she understood that she was

supposed to witness someone signing a document before signing as a witness, that

never happened while she worked for the Arceneaux companies.

Following the conclusion of the bench trial, the trial court took the matter

under advisement and thereafter dismissed all claims in Sammy' s trust suit with

prejudice and declared that the Bryan D. Arceneaux and Darnelle B. Arceneaux

Irrevocable Trust and all community property transfers thereto are valid and

enforceable."
In written reasons for judgment, the trial court made the following

findings, " based on the testimony from the ... witnesses, which the court found to

be the most credible": the Delaware trust agreement was properly executed by

authentic act; the Delaware trust agreement was effective when signed by the

parties, regardless of the fact that Advocates Trust Services never signed the

b The original judgment signed by the trial court on April 7, 2022 was later amended pursuant to a rule to show
cause order issued by this court in accordance with La. C. C. P. arts. 1918 and 2088( A)( l 1) and ( 12). The trial court
issued an amended judgment on September 22, 2022, to provide proper decretal language and to certify the
judgment as final under La. C. C. P. art. 1915( B).

23

agreement; the Delaware trust agreement gave WPLG the authority to change the

situs of the trust from Delaware to Nevada; Villarrubia, on behalf of WPLG,

changed the situs of the trust from Delaware to Nevada; Villarrubia " explained to

Sammy] what was happening each time he met with her[;]" Sammy' s self-serving

testimony that she did not know or understand what she was signing when she

executed the donations and property transfers to the trust on December 27, 2016

was insufficient to prove that she was deceived; and the donations and property

transfers executed by the parties on December 27, 2016 independently created a

Nevada trust under Nevada law.

Following the issuance of the trial court' s judgment, Sammy appealed both

the denial of her motion for summary judgment and the trial court' s judgment on

the merits denying her request to declare the trust and ancillary transactions null

and void.

On appeal, Sammy argues the trial court erred in: ( 1) applying the Nevada

choice of law provision found in the unexecuted Nevada trust agreement, and then

applying a Nevada constructive trust statute that is inconsistent with Louisiana law

in order to uphold the Nevada trust agreement or create a new constructive trust;

2) finding the unexecuted Nevada trust agreement enforceable, even though all

parties and witnesses admitted that they only signed a Delaware trust agreement

and no new signature pages were obtained by the Villarrubia firm; ( 3) ignoring

Villarrubia' s testimony against self-interest that the Delaware trust never came into

existence because it was not accepted by the proposed administrative trustee and

that he did not use his authority as trust protector under the Delaware trust

agreement to change the situs of the trust to Nevada pursuant to the procedures

outlined in the Delaware trust agreement; ( 4) ignoring Eljaouhari' s testimony that

the Nevada trust agreement needed to be specifically and separately executed by

the parties; ( 5) ignoring the improper re -use of the signature pages from the

24

Delaware trust agreement to create the Nevada trust; ( 6) ignoring the

uncontroverted evidence that Villarrubia and Eljaouhari did not inform Sammy

about the nature of the trust agreements being drafted or the decision to form a

Nevada trust instead of a Delaware trust; ( 7) relying on its finding that the

Delaware trust was properly executed by authentic act, when Villarrubia testified

that the Delaware trust never came into existence because the proposed

administrative trustee declined the appointment; ( 8) crediting the testimony of

certain witnesses regarding the execution of the Delaware trust agreement despite

numerous internal inconsistencies and implausible versions of facts by the

unreliable witnesses; and ( 9) denying Sammy' s motion for summary judgment.

DISCUSSION

We will first address Sammy' s argument that the trial court erred in finding

that the Delaware trust agreement was properly executed by authentic act.

Louisiana Revised Statutes 9: 1752 provides that "[ a] n inter vivos trust may

be created only by authentic act or by act under private signature executed in the

presence of two witnesses and duly acknowledged by the settlor or by the affidavit

of one of the attesting witnesses." An authentic act is a writing executed before a

notary public or other officer authorized to perform that function, in the presence

of two witnesses, and signed by each party who executed it, by each witness, and

by each notary public before whom it was executed. La. C. C. art. 1833( A). It is

not necessary that the writing be executed at one time or place, or before the same

notary public or in the presence of the same witnesses, provided that each party

who executes it does so before a notary public or other officer authorized to

perform that function and in the presence of two witnesses and each party, each

witness, and each notary public signs it. La. C. C. art. 1833( B).

25

The purpose of the authentic act requirements is to ensure the validity of a

signature on a document and that the person whose name appears on a document is

the person who actually signed the document. Villenuve v. Cash, 2016- 1530, p. 6

La.App. 1 Cir. 9/ 21/ 17), 231 So. 3d 682, 687. Any material deviation from the

requirements governing authentic acts is fatal. Villenuve, 2016- 1530 at p. 4, 231

So. 3d at 685. A party seeking to invalidate an apparently authentic act must

present strong and convincing proof of such magnitude as to overcome the

presumption of verity of notarial acts. Eschete v. Esthete, 2012- 2059, p. 3

La.App. 1 Cir. 2/ 27/ 14), 142 So. 3d 985, 987.

Although Sammy admits that she signed the Delaware trust agreement, she

denies that she signed it in the presence of a notary and two witnesses. However,

other evidence presented by the defendants at trial contradicted Sammy' s

assertions that the Delaware trust agreement was not executed as an authentic act.

It is clear that after considering all of the evidence and the conflicting

testimony at trial, the trial court was called on to make a credibility determination,

which it did, finding the testimony of other witnesses to be more credible than

Sammy' s. The trial court believed the testimony of Bordelon and St. Pierre, who

it noted were " both disinterested in the outcome of this case," that Bryan and

Sammy signed the agreement in St. Pierre' s office with Bordelon and Cheramie

present.
The trial court noted that Sammy was the only witness who testified that

the document was not signed in St. Pierre' s office and found her testimony in that

regard to be " self-serving and not credible."

Where findings are based on determinations regarding the credibility of

witnesses, the manifest error standard demands great deference to the trial court' s

findings of fact. Indeed, where the factfinder' s determination is based on its

decision to credit the testimony of one of two or more witnesses, that finding can

26

virtually never be manifestly erroneous. Manchester v. ANPAC Louisiana

Insurance Co., 2018- 1379, p. 5 ( La.App. 1 Cir. 5131119), 278 So. 3d 993, 997.

We find no error in the trial court' s conclusion that the Delaware trust

agreement was a properly executed authentic act. This finding is reasonably

supported by the record and is not manifestly erroneous. Moreover, we will not

disturb the findings of the trial court as the factfinder, who listened to the

testimony of all of the witnesses and has vast discretion in determining the weight

and credibility of each witness. See LeBlanc v. Elam, 2022- 0105, pp. 7- 8 ( La.App.

1 Cir. 1114122), 355 So. 3d 21, 27.

Sammy next argues that even if the Delaware trust agreement was properly

executed, the Delaware trust never came into existence because the Delaware trust

agreement was never executed by an administrative trustee. By extension, Sammy

argues that the trial court erred in finding that the situs of the Delaware trust was

changed from Delaware to Nevada because there never was a Delaware trust.

The Delaware trust agreement provides, immediately above Bryan and

Sammy' s notarized signatures:

We have executed this trust on October 10, 2016, This Irrevocable

Trust Agreement is effective when signed by us, whether or not now
signed by a Trustee.

We certify that we have read and understand this Irrevocable Trust
Agreement, and that it correctly states the provisions under which our
trust property is to be administered and distributed by the Trustee.

Thus, according to the terms of the agreement signed by Bryan and Sammy, the

Delaware trust agreement' s provisions were effective from the time Bryan and

Sammy signed the agreement, regardless of whether or not it had been signed by

an administrative trustee.

Under the terms of the Delaware trust agreement, the trust protector

WPLG) has the power to amend or modify the agreement and to change the

governing law of the trust or change the situs of administration of the trust from

27

one jurisdiction to another. However, the provisions of the Delaware trust

agreement that grant these powers to the trust protector also include procedural

requirements for the exercise of the powers by the trust protector. Section 5. 11( a)

of the Delaware trust agreement gives the trust protector the power and authority to

make amendments or modifications to the agreement, subject to certain limitations;

however, this grant of authority requires that any amendment must be made in

writing and signed by the trust protector and the trust protector must deliver a copy

of the amendment to the primary beneficiaries and trustees of the amended trust.

Section 5. 11( b) gives the trust protector the power to " change the governing law of

the trust ... or change the situs of administration of the trust from one jurisdiction

to another as more specifically set forth in Section 15. 04 of this instrument."

Section 15. 04 provides, in pertinent part:

At any time, the Trust Protector may change the governing law of the
trust; change the situs of the administration of the trust; and remove
all or any part of the property from one jurisdiction to another. The
Trust Protector may elect, by filing an instrument with the trust
records, that the trust will then be construed, regulated, and governed
by the new jurisdiction' s laws. The Trust Protector may take action
under this Section for any purpose the Trust Protector considers
appropriate, including the minimization of any taxes in respect of the
trust or any trust beneficiary. [ emphasis added]

Villarrubia testified at trial that he changed the parties' Delaware trust to a

Nevada trust governed by Nevada laws; however, he testified that he was unsure

whether he did so in his capacity as trust protector ( on behalf of VWPLG) or as the

parties' attorney. Villarrubia admitted that he did not file an instrument with the

trust records as required by Section 15. 04 in order for the trust protector to change

the governing law and situs of administration of the trust. He testified that he

effected the change by changing the trust agreement instead. Although the trust

protector also has general authority under Section 5. 11( a) to modify or amend the

trust agreement, there is no indication in the record that Villarrubia complied with

the procedural requirements to do so, i.e., that the amendment was in writing and

28

signed by the trust protector and that he delivered a copy of the amendment to the

primary beneficiaries and trustees of the amended trust. While the Nevada trust

agreement could arguably be construed as a written amendment to the agreement,

Villarrubia admitted that he did not sign the Nevada trust agreement. Furthermore,

it does not appear that a copy of the unsigned Nevada trust agreement was

delivered to anyone other than Premier Trust, Although Villarrubia implied that he

may have changed the trust agreement in his capacity as an attorney, he did not

explain the source of his authority to do so and there was no evidence presented

that either party granted authority to Villarrubia, as their attorney, to act on their

behalf in this way. The record before us, viewed in its entirety, does not support

the conclusion that Villarrubia changed the situs and governing law of the

Delaware trust to Nevada under any valid authority, and the trial court' s finding

that he did was clearly wrong.

Sammy next argues that the trial court erred in apparently finding the

Nevada trust agreement, which was never signed by the parties, to be valid and

enforceable. Sammy assumes that the trial court found the Nevada trust agreement

to be valid and enforceable because the trial court applied Nevada law (the choice

of law set forth in the Nevada trust agreement) in order to conclude that a valid

Nevada trust was created. Although a trial court' s oral or written reasons for

judgment form no part of the judgment, and appellate courts review judgments, not

reasons for judgment, 17 we note that the trial court' s lengthy factual findings did

not include a finding that the Nevada trust agreement was a valid, enforceable

agreement, nor was such a finding implied. Rather, the trial court determined that

Nevada law was applicable pursuant to Louisiana' s choice of law provisions.

There is no genuine dispute that the Nevada trust agreement was never

executed by the parties. Since the Nevada trust agreement was never executed by

Woulev v. Lucksinger, 2004-0571, pp. 77- 78 ( La. 411111), 61 So3d 507, 572.

29

the parties, the choice of law provision contained in Section 15. 06( d) of the

agreement is not applicable to the determination of whether the Nevada trust is

valid. The trial court concluded, and the appellees argue, that Nevada law should

apply to this dispute nonetheless. The appellees base their assertion that Nevada

law should apply to this matter on the facts that the Delaware trust agreement was

properly executed by authentic act; the Delaware trust agreement was effective

once signed by the parties, even though it was not yet signed by a trustee; and the

trust protector subsequently exercised his authority under the Delaware trust

agreement to change the situs and governing law of the trust to Nevada. Since we

have determined that the trial court' s finding that the trust protector exercised his

authority to change the situs and governing law of the trust was clearly wrong, the

Nevada trust agreement is not determinative of the choice of law in this case.

Louisiana has not enacted a choice of law provision dealing specifically with

trusts. However, the general articles of the choice of law provisions have been

held to be broad enough to deal with the creation of an inter vivos trust. Hilliard v.

Marshall, 91 F. Supp. 2d 916, 918 ( W.D. La. 1999); see La. C. C. arts. 3515- 3518.

Louisiana Civil Code article 3515 provides:

Except as otherwise provided in this Book, an issue in a case having
contacts with other states is governed by the law of the state whose
policies would be most seriously impaired if its law were not applied
to that issue.

That state is determined by evaluating the strength and pertinence of
the relevant policies of all involved states in the light of. ( 1) the

relationship of each state to the parties and the dispute; and ( 2) the
policies and needs of the interstate and international systems,

including the policies of upholding the justified expectations of parties
and of minimizing the adverse consequences that might follow from
subjecting a party to the law of more than one state.

The relationships of the states to the parties and the dispute are as follows.

The parties are Louisiana residents who executed a trust agreement in Louisiana, in

accordance with the form requirements of the Louisiana Trust Code, in which the

30

parties agreed to create a Delaware trust governed by Delaware law. The parties

then executed acts of donation and sales in Louisiana in which they transferred

certain property subject to a Louisiana community property regime to a Nevada

trustee, who in turn accepted the donations on behalf of a Nevada trust. The acts

of sale transferred the property in consideration of promissory notes executed by

the Nevada trustee, which provide ( due to a drafting error by the attorney who

prepared the notes) that the notes are to be governed by Delaware law. The

property has been held in the Nevada trust and administered by the Nevada trustee

since December of 2016.

In this case, the parties executed a trust agreement with the intention of

creating a foreign trust in accordance with Louisiana law," The evidence

presented at trial was clear that the parties intended to place their community

property in a foreign trust for the benefit of their children. By the terms of the

agreement, the parties voluntarily subjected themselves and the trust property to

the laws of Delaware. Importantly, they also gave authority and discretion to a

third -party, WPLG, to change the governing law and situs of the trust from

Delaware to another jurisdiction. Although WPLG ( through Villarrubia) did not

properly exercise that authority, the parties' agreement allowed for the possibility

that the trust property would be moved by the trust protector to another state and

subjected to the laws of that new state. Thereafter, the parties executed valid

transfers of their property to a Nevada trustee to be placed in a Nevada inter vivos

trust, 19 and the Nevada trustee accepted the donations and executed promissory

Under Louisiana law, " foreign trust" means either a trust which by the terms of the trust instrument is governed by
the law of a jurisdiction other than Louisiana or a trust of which the settlor was domiciled in a jurisdiction other than
Louisiana at the time the trust was created. La. R. S. 9: 2262. ] (A). Although Louisiana law provides an exception to
the form requirements set forth in the Louisiana Trust Code for certain foreign trusts, that exception is not applicable
in this case_ The exception to the form requirement applies to foreign trusts " executed outside this state in the
manner prescribed by, and in conformity with, the law of the place of its execution, or the law of the settlor' s
domicile, at the time of its execution . , . provided the trust instrument is in writing and subscribed by the settlor."
La. R.S. 9: 2262. 4.

11 Although Sammy maintains that she did not know that she was transferring property to a Nevada trustee or a
Nevada trust because she was only shown the signature pages to the acts of donation and sales, a person who signs a
written instrument is presumed to know its contents and cannot avoid its obligations by contending that he/ she did

31

notes in consideration of the property sold. It appears that the justified expectation

of the parties was that their trust would not be governed by the laws of Louisiana,

but by the laws of Delaware or another jurisdiction selected by the trust protector.

In light of the particular facts and circumstances of this case, there was no error in

the trial court' s finding that Nevada law should be applied to the suit to invalidate

the trust and property transfers.

Under Nevada law, except as otherwise provided by specific statute or any

regulatory or contractual restrictions, a trust may be created by a transfer of

property by the owner during his or her lifetime to another person as trustee. NV

ST 163. 002( 1)( b). Other requirements for a valid trust under Nevada law are that

the settlor properly manifests an intention to create a trust, there is trust property,

and the trust instrument" provides for a beneficiary or class of beneficiaries that is

ascertainable with reasonable certainty or that is sufficiently described so that it

can be determined whether a person meets the description or is within the class.

NV ST 163. 003 & 163. 006( 1). See Tsai v. Hsu, 126 Nev. 763, 367 P. 3d 828

2010) ( the parties created a valid trust under Nevada law when they executed a

quitclaim deed transferring all right, title, and interest in land to their minor

children in trust, with the parties agreeing to act as co -trustees).

In this case, Bryan and Sammy transferred property during their lifetimes to

Premier Trust as trustee of "The Bryan D. Arceneaux and Darnelle B. Arceneaux

Irrevocable Trust ... a Nevada inter vivos trust ... in consideration of the natural

love and affection which Donors have for their family who are the sole

not read it, or that it was not explained, or that he/ she did not understand it. Wagner v. DA Exterminating Co. of Sc.
Tammany, Inc., 2020- 0876, p. 9 ( La.App. i Cir. 4/ 16/ 21), 324 So.3d 105, 1 1 1. The presumption is that parties are
aware of the contents of writings to which they have affixed their signatures, and the burden of proof is upon them
to establish with reasonable certainty that they have been deceived. If a party can read, it behooves him/ her to
examine an instrument before signing it. Id. The trial court found that Sammy' s testimony that she did not know or
understand what she was signing when she signed the acts of donation and sales was insufficient to carry her burden
of proving that she was deceived. Reviewing the record in its entirety, we cannot say that the trial court' s
conclusion on this issue was manifestly erroneous or clearly wrong.

20 Despite the reference to a " trust instrument," oral trusts may be validly created under Nevada law where the
existence and terms of the oral trust are established by clear and convincing evidence, and in the case of an oral
trust, the " trust instrument" refers to the terms of the trust as established by clear and convincing evidence. NV ST
163. 009.

32

beneficiaries" of the trust. The acts of donation executed by Bryan and Sammy

also referred to the beneficiaries, Colby and Jean Pierre, by name. On the evidence

before us, we cannot say that Sammy carried her burden of proving that the

Nevada trust was invalid under Nevada law. The trial court did not err in

dismissing her claims in the trust suit.

Sammy also raised the denial of her motion for summary judgment on

appeal. Generally, an appeal may not be taken from the trial court' s denial of a

motion for summary judgment. See La. C. C. P. art. 968 (" An appeal does not lie

from the court' s refusal to render any judgment on the pleading or summary

judgment."). However, the denial of a motion for summary judgment may be

reviewed on an appeal of a final judgment in the suit when the issue raised in the

motion for summary judgment is raised again on appeal. Gilchrist Construction

Co., LLC v. State, Department of Transportation and Development, 2013- 2101, p.

7( La.App. 1 Cir. 319/ 15), 166 So. 3d 1045, 1051, writ denied, 2015- 0877 ( La.

6/ 30/ 15), 172 So. 3d 1097. When an unrestricted appeal is taken from a final

judgment, the appellant is entitled to seek review of all adverse interlocutory

rulings, in addition to review of the final judgment. Fonseca v. City Air of

Louisiana, LLC, 2015- 1848, p. 5 n. 3 ( La.App. 1 Cir. 6/ 3/ 16), 196 So. 3d 82, 85 n.

3. Nevertheless, the Louisiana Supreme Court has made it clear that after a full

trial on the merits, the standard of review utilized in reviewing the denial of a

motion for summary judgment is not the same standard of review utilized by
2'
appellate courts in reviewing the grant of a summary judgment. The Louisiana

Supreme Court has explained that " once a case is fully tried, the affidavits and

other limited evidence presented with a motion for summary judgment -later denied

by the district court -are of little or no value." Hopkins v. American Cyanamid

2L An appellate court reviews the granting of a motion for summary judgment de nova, using the same criteria that
govern the trial court' s consideration of whether summary judgment is appropriate. In re succession of Beard,
2013- 1717, p. 10 ( La.App. 1 Cir. 616114), 147 So. 3d 753, 759- 60.

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Company, 95- 1088, p. 13 ( La. 1116196), 666 So. 2d 615, 624. Instead, the entire

record should be reviewed by an appellate court. Id.

Thus, while the issue of the parties' lack of consent to enter into a Nevada

trust raised by Sammy' s motion for summary judgment is properly before us in this

appeal, the limited evidence before the trial court at the time of its pre- trial ruling

denying the motion and the de novo standard of review for summary judgments are

no longer pertinent. The issue raised by Sammy in her motion for summary

judgment must be considered by this court after review of the entire record. See

Browne v. State ex rel. Department of Transportation & Development, 2015- 0667

La.App. 1 Cir. 2/ 4116), 2016WL455938, * 4, ( unpublished), writ denied, 2016-

0442 ( La. 4/ 22/ 16), 191 So. 3d 1044; see also Moore v. Talbot, 2008- 1370 ( La.App.

1 Cir. 2113109), 2009WL368619, * 3, n. 4, ( unpublished), writ denied, 2009- 0553

La. 4/ 24/ 09), 7 So. 3d 1199. Our review of the entire record reveals that genuine

issues of material fact existed as to Sammy' s consent to the creation of the Nevada

trust, such as Sammy' s execution of a number of authentic acts transferring

property to a Nevada inter vivos trust. Summary judgment was not appropriate on

this issue.

DECREE

For the reasons set forth herein, we recall the rule to show cause, maintain

the appeal, and affirm the October 14, 2021 judgment denying Darnelle B.

Arceneaux' s motion for summary judgment and the September 22, 2022 amended

judgment dismissing all claims raised by Darnelle B. Arceneaux in the " Verified

Petition to Declare Trust and Ancillary Transactions Null and Void, and for

Preliminary and Permanent Injunction." Costs of this appeal are assessed to

appellant, Darnelle B. Arceneaux.

RULE TO SHOW CAUSE RECALLED; APPEAL MAINTAINED;

AND AFFIRMED.

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