Succession of Clarence Donald Fox

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,105-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

SUCCESSION OF
CLARENCE DONALD FOX

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. P-2022-3419

Honorable Alvin Rue Sharp, Judge

*****

BREITHAUPT, DUBOS, Counsel for Appellants,
& WOLLESON, LLC Barbara Fox Rock and
By: R. Alan Breithaupt Marcus Joseph Gray

BREITHAUPT, DUBOS, Counsel for Appellee,
& WOLLESON, LLC Succession of Clarence
By: James R. Close Donald Fox

LISKOW & LEWIS Counsel for Intervenor-
By: Shannon S. Holtzman Appellee, Michael
Wayne Fox

DAVENPORT, FILES
& KELLY, LLP
By: W. David Hammett

STEPHEN D. FOX In Proper Person

*****

Before STONE, COX, and STEPHENS, JJ.

COX, J.

This civil appeal arises from the Fourth Judicial District Court,

Ouachita Parish, the Honorable Alvin Sharp presiding. Following the filing

of a notice of new successor trustee in August 2022, the district court

granted a motion for partial summary judgment filed by Michael W. Fox

which sought to have the notice declared null and void. Barbara Fox Rock

and Marcus Gray (collectively, “Appellants”) filed this appeal. For the

following reasons, we affirm.

FACTS

In January 2018, C.D. Fox (the “Decedent”) and his wife, Irmgard, as

co-settlors, established the Fox Family Irrevocable (Crummey Trust) (the

“Trust”), with the Decedent serving as trustee. The Trust named Decedent’s

and Irmgard’s four adult children, Michael, Christina W. Banda, Stephen D.

Fox, and Barbara M. Rock Fox, as principals and income beneficiaries. The

Trust named Michael as the successor trustee, followed by Stephen, and then

one of the Decedent’s grandsons, Michael G. Fox. Specifically, the Trust

specified, in pertinent part:

On the condition precedent that CLARENCE DONALD FOX
dies, resigns, becomes incapacitated, or otherwise ceases to act
as Trustee of this Trust, then Dr. Dent MICHAEL WAYNE
FOX shall immediately become the Successor Trustee of this
Trust in his place. The Trust shall file Notice of New Trustee
in the Public Records of Ouachita Parish, Louisiana to signify
the fact that the Trust has a new Trustee. Thereafter, on the
condition precedent that both CLARENCE DONALD FOX
and Dr. Dent. MICHAEL WAYNE FOX have died, resigned,
become Incapacitated, or otherwise ceased to act as Trustee of
this Trust, then STEPHEN DONALD FOX shall immediately
become the Successor Trustee of this Trust in his place, The
Trust shall file Notice of New Trustee in the Public Records of
Ouachita Parish, Louisiana to signify the fact that the Trust has
a new Trustee. . . (Emphasis added.)

Irmgard Fox died on February 3, 2018, leaving the Decedent as the sole

settlor over the Trust.

Of note, the Decedent executed a will, originally dated May 28, 2003,

which named Michael as the executor of the estate. On July 12, 2022,

Decedent, in his capacity as trustee, executed a letter which purported to

appoint Marcus Gray, another grandson of the Decedent, as the successor

trustee. In particular, the letter provided, in part:

. . . pursuant to Article VIII, Sections 1 and 2 of the Fox Family
Irrevocable (Crummey Trust) Trust-Louisiana-I (hereinafter
sometimes referred to as the “Trust”), which provides that I,
Clarence Donald Fox, as Settlor of the Trust have the right to
change the Trustee of the Trust and/or to appoint the Trustee’s
successor by written notification to the Trustee by Certified
Mail, Return Receipt Requested or by Priority Mail, Delivery
Confirmation at any time prior to the death of either of the
Settlors of the Trust.

Accordingly, please let this letter serve as written notification
that I, Clarence Donald Fox, in my capacity as Settlor of the
Trust do hereby make the following modifications to the Trust
regarding the appointment of Successor Trustees, to wit:

1. CLARENCE DONALD FOX shall continue to serve as
Trustee of the Trust;

2. On the condition precedent that CLARENCE DONALD
FOX dies, resigns, becomes incapacitated, or otherwise ceases
to act as Trustee of this Trust, then MARCUS JOSEPH
GRAY shall immediately become the Successor Trustee of this
Trust in his place. The Trust shall file a Notice of New Trustee
in the Public Records of Ouachita Parish, Louisiana to signify
the fact that the Trust has a new Trustee. . .(Emphasis added.)

“A Notice of New Successor Trustee and Successor Trustees Fox Family

Irrevocable (Crummey Trust) Trust,” dated August 9, 2022, reflecting the

content of the letter, was filed into public record on August 16, 2022. The

Decedent died on August 27, 2022, and on September 20, 2022, Barbara

filed a petition to probate a second will signed by Decedent on July 6, 2022.

The second will changed the disposition of the Decedent’s estate and named
2

Barbara as the executrix of the estate, which she sought to be confirmed as

by the district court.

On October 4, 2022, Michael filed an opposition to Barbara’s petition

to probate and appointment as executrix, as well as a petition in intervention,

naming Barbara, Marcus, Christina, Stephen, and Rachael and Jordan Gray

as defendants-in-intervention.1 In his petition, Michael challenged the July

6, 2022, will, arguing that it was null and void because the Decedent lacked

testamentary capacity to execute the will, and/or the will was procured by

the “control, manipulation, misrepresentations, and undue influence,” by one

or more of the named defendants-in-intervention.

In his prayer for judgment, Michael asserted that the May 2003 will

should be probated instead and that he should be confirmed as executor.

Michael further prayed that the Notice of New Trustee be declared null and

void and that he be named successor trustee in accordance with the terms of

the Trust instrument.

On February 27, 2023, Appellants filed a dilatory exception of

vagueness and motion to strike, generally asserting that the allegations of

manipulation, control, and undue influence over the Decedent to secure

benefits from the Trust were impermissibly vague as to the specific facts

concerning how or when such actions occurred. A hearing on the matter

was originally scheduled for March 23, 2023.

On July 5, 2023, Michael filed a motion for partial summary judgment

wherein he asserted that the Notice of New Trustee was null and void as a

matter of law because it violated the express terms of the Trust. Michael

1
The opposition clarified that Marcus Gray and Rachael Gray are the Decedent’s
grandchildren, and Jordan Gray is the Decedent’s great-grandson.
3

argued that the terms of the Trust explicitly restricted the authority of the co-

settlors to appoint new successor trustees at any time “prior to” either of

their deaths, such that the appointment of a new successor four years after

Irmgard died, is null and void as a matter of law.

A hearing on the matter was originally set for August 9, 2023, but on

July 24, 2023, Appellants filed a motion to reset the hearing. On August 1,

2023, Appellants filed two briefs in opposition to the motion for partial

summary judgment. Appellants argued in general that the terms of the Trust

authorized the Decedent, as co-settlor, to appoint a new successor trustee

prior to his death. Specifically, Article VIII, Section 2 of the Trust expressly

provides that “The Settlors expressly reserves [sic] the right to change the

Trustee, and/or to appoint the Trustee’s successor, by written notification to

the Trustee at any time prior to the death of the Settlors.”

Appellants maintained that this provision reflected the Settlors’ intent

to authorize either the Decedent or Irmgard the ability to change the trustee

or successor trustees of the Trust during either of their lives. However, in

the alternative, Appellants argued that at the very least, there exists a

genuine issue of material fact regarding the Settlors’ intent concerning the

authority of either alone to change the trustee and successor trustees for the

Trust following the death of either Settlor.

Appellants further argued that because Michael raised a novel issue

regarding the language of the Trust, there was inadequate opportunity for

discovery. Specifically, Appellants argued that although they made a

diligent effort, they were unable to depose either Michael or Stephen, who

were necessary to ascertain any relevant evidence or information regarding

the intent of the Settlors and resolve discrepancies in written discovery
4

responses. Appellants filed another opposition brief on January 18, 2024,

presenting arguments similar to those outlined in the August 1, 2023, brief.

Following a hearing on January 31, 2024, the district court granted

Michael’s motion, finding that the Notice of New Trustee was null and void,

and ordered the trust books, records, and accounts be transferred to Michael

as the new trustee in accordance with the terms of the Trust. The judgment

specified:

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
that [the] Motion for Partial Summary Judgment Declaring the
Notice of New Trustees to be Null and Void is GRANTED in
favor of Intervenor, Michael Wayne Fox, and against
Defendants-in-Intervention, Marcus Joseph Gray and Barbara
Fox Rock, and the “Notice of New Trustee and Successor
Trustees Fox Family Irrevocable (Crummey Trust) – Louisiana
– I,” filed in the public records maintained by the Ouachita
Parish Clerk of Court’s office at No. 1859844, Book 2710, Page
238, is hereby declared NULL and VOID.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED
THAT Defendants-in-Intervention, Marcus Joseph Gray and
Barbara Fox Rock, are hereby ordered to accomplish the
following within forty-five (45) working days after the date of
this Judgment: take all steps necessary to transfer the books,
records, and accounts of the Fox Family Trust to Michael W.
Fox as Successor Trustee under the Fox Family Trust
instrument. For purposes of this Judgment the Fox Family Trust
means the Fox Family Irrevocable (Crummey Trust) Trust –
Louisiana – I.

Appellants filed their notice of intent to seek supervisory review of this

ruling and their request for stay of the proceedings and the effect of the

judgment on February 20, 2024, with a supporting memorandum filed on

February 26, 2024. Their request for a stay of the proceedings was granted,

but the district court denied the stay for the execution of the judgment.

Appellants also filed a motion for devolutive appeal, which was granted.

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DISCUSSION

Before this Court, Appellants cite four assignments of error for

review, generally urging that the district court erred in granting Michael’s

motion for partial summary judgment.

Motion for Partial Summary Judgment

By their first assignment of error, Appellants argue that the district

court erred in granting the motion for partial summary judgment, in part,

because the relief granted exceeded the scope of the pleadings. Specifically,

Appellants argue that prior to his motion, Michael filed only one pleading,

the petition in intervention of and opposition to Barbara’s petition to

probate.

Appellants maintain that the crux of Michael’s petition was that the

July 6, 2022, will should be declared null and void because the Decedent

lacked testamentary capacity to execute the will, and that the Decedent’s

signature was procured by “control, manipulation, misrepresentations, and

undue influence,” and that the Decedent was “physically and mentally

incapable of preparing and comprehending the Notice of New Trustee

document.” Appellants maintain that Fox failed to amend his petition to

include any claims that the Decedent’s appointment of new successor

trustees was not authorized by the Trust.

Appellants acknowledge that La. C.C.P. art. 1151 permits post-trial or

post-judgment amendment of pleadings to conform with the evidence “when

issues not raised by the pleadings are tried by express or implied consent of

the parties.” However, Appellants argue that in this case, they timely and

properly objected to Michael raising the issue of whether the provision of

the Trust authorized the Decedent to appoint new successor trustees.
6

Appellate courts review summary judgments de novo, under the same

criteria that govern the district court’s consideration of whether summary

judgment is appropriate: whether there is any genuine issue of material fact,

and whether mover is entitled to judgment as matter of law. Samaha v. Rau,

07-1726 (La. 2/26/08), 977 So. 2d 880. A motion for summary judgment is

a procedural device used when there is no genuine issue of material fact for

all or part of the relief prayed for by a litigant. Schultz v. Guoth, 10-0343

(La. 1/19/11), 57 So. 3d 1002. The procedure is favored and shall be

construed to secure the just, speedy, and inexpensive determination of

actions. La. C.C.P. art. 966(A).

Summary judgment shall be granted if the pleadings and supporting

documents admitted for purposes of summary judgment show that there is

no genuine issue as to material fact, and that the mover is entitled to

judgment as a matter of law. La. C.C.P. art. 966(A)(3). A fact is material if

it potentially ensures or precludes recovery, affects a litigant’s ultimate

success, or determines the outcome of the legal dispute. A genuine issue of

material fact is one as to which reasonable persons could disagree; if

reasonable persons could reach only one conclusion, there is no need for trial

on that issue and summary judgment is appropriate. Maggio v. Parker, 17-

1112 (La. 6/27/18), 250 So. 3d 874; Saldana v. Larue Trucking, LLC,

52,589 (La. App. 2 Cir. 4/10/19), 268 So. 3d 430, writ denied, 19-00994 (La.

10/1/19), 280 So. 3d 159.

While the movant bears the burden of proof for the motion, if the

movant will not bear the burden at trial, then not all elements of the action

need be negated. La. C.C.P. art. 966(D). In that case, the movant need only
7

show that the claimant lacks factual support for one or more elements of the

claim, affirmatively establish the absence of a genuine issue of material fact,

and that the movant is entitled to judgment as a matter of law. Id.

Only when the movant has presented sufficient evidence that the

motion should be granted does the burden shift to the nonmovant, who must

show there exists factual evidence sufficient to meet the evidentiary burden

at trial or that a genuine issue of material fact remains in dispute. La. C.C.P.

art. 966(D); Franklin v. Dick, 51,479 (La. App. 2 Cir. 6/21/17), 224 So. 3d

1130. If the nonmovant fails to produce sufficient evidence, then there is no

genuine issue of material fact. La. C.C.P. art. 966(C). The opposing party

may not rely on mere formal allegations or pro forma denials but must give

specific facts in affidavits or show there is a genuine issue remaining.

Samaha v. Rau, supra. The failure of the nonmoving party to produce

evidence of a material factual dispute mandates the granting of the motion

for summary judgment. Id.

In its written judgment, the district court provided that the August

2022 Notice of New Trustee was null and void and declared that Michael

was the new trustee under the provisions of the Trust instrument. Appellants

maintain Michael failed to make any allegations or assertions which would

give rise to the relief granted, and therefore, any issues regarding the matter

are an absolute nullity. We disagree.

La. C. C. P. art. 862 grants the trial court authority to render a final

judgment granting the relief to which the party in whose favor it is rendered

is entitled. However, a court may not decide a controversy which the

litigants have not regularly brought before it. O’Reilly Automotive Stores,

Inc. v. White, 55,520 (La. App. 2 Cir. 4/10/24). 384 So. 3d 1194; Dupree v.
8

Dupree, 41,572 (La. App. 2 Cir. 12/20/06), 948 So. 2d 254. The court may

only grant relief warranted by the arguments contained in the pleading and

the evidence. Id.; Dupree, supra. In short, La. C. C. P. art. 862 does not

permit a trial court to decide issues which litigants have not raised. Id.

La. C.C.P. art. 1154 permits expansion of pleadings to include issues

not raised in pleadings; however, such expansion is only available when the

issue is tried by the express or implied consent of the parties. A party is

entitled to any relief available based on the facts pled, regardless of the

specific relief requested. Miller v. Thibeaux, 14-1107 (La. 1/28/15), 159 So.

3d 426. A judgment rendered beyond the pleadings is a nullity. Matter of

Succession of Adams, 51,914 (La. App. 2 Cir. 4/11/18), 247 So. 3d 1014.

Moreover, this Court notes that the law takes a liberal approach

toward allowing amended pleadings in order to promote the interests of

justice. Jackson v. Lowe’s Home Centers, L.L.C., 51,537 (La. App. 2 Cr.

2/28/18), 243 So. 3d 1262, citing, Reeder v. North, 97-0239 (La. 10/21/97),

701 So.2d 1291. Amendment of pleadings should be liberally allowed,

provided the mover is acting in good faith, the amendment is not sought as a

delaying tactic, the opponent will not be unduly prejudiced, and trial of the

issues will not be unduly delayed. Id.

In the present case, Michael, in his petition in intervention and

opposition to Barbara’s petition to probate, provided the following in his

request for relief and judgment:

The entry of a declaratory judgment declaring that the “Notice
of New Trustee,” a copy of which is attached as Exhibit C, is
null, void, and rescinded, declaring that Michael Wayne Fox is
the Trustee of the Fox Family Irrevocable (Crummy Trust)
Trust, and declaring that the original Trust Instrument
provisions regarding successor trustees are effective and
controlling. . .
9

In this Court’s de novo review, Michael not only raised the issue of

whether he could be declared the successor trustee in accordance with the

provisions of the Trust but also whether the Notice of New Trustee could be

declared null and void in light of the Trust instrument. Because Michael

specifically demanded this relief, the district court properly considered the

matter in the subsequent motion for partial summary judgment and granted

the relief in accordance with both the petition and the motion.

Although Appellants filed a dilatory exception of vagueness and

motion to strike and an answer to Michael’s petition, they failed to address

this claim for relief. In the filing of Michael’s petition, the issue was placed

before the district court to address and was later argued by both Michael in

his motion for partial summary judgment and by the Appellants in their two

opposition briefs on the matter. Therefore, we cannot say that the district

court granted relief beyond the scope of the petition, or that the district court

even erred in considering the pleading expanded to encompass the issue.

Notice of New Trustees; Language of the Trust

By their second assignment of error, Appellants assert that the district

court erred in granting partial summary judgment because the Trust

instrument expressly authorized the Decedent, as settlor, to appoint a new

successor trustee at any time prior to his death. Appellants argue that Article

VIII.2 of the Trust expressly reflects the intent of the settlors that either the

Decedent or Irmgard was authorized to appoint a successor trustee at any

time before the last settlor died. Article VIII.2 provides:

The Settlors expressly reserves the right to change the Trustee,
and/or to appoint the Trustee’s successor, by written
notification to the Trustee at any time prior to the death of the
Settlors.
10

Appellants maintain that Article VIII.2 is the more specific provision, which

controls in the general interpretation of written instruments, like trusts.

Appellants argue that Michael’s reliance upon Article VIII.1 is

misplaced. Appellants assert that VIII.2 only concerns the appointment of

new trustees and successor trustees. In contrast, Appellants urge that Article

VIII.1 provides a list of designated successor trustees and the protocol of

appointment in the event of a vacancy; within this provision is the right of

reservation of successor trustees. Article VIII.1, in pertinent part, provides:

On the condition precedent that [Decedent] dies, resigns,
becomes incapacitated, or otherwise ceases to act as Trustee of
this Trust, then [Michael] shall immediately become the
Successor Trustee of this Trust in his place. . . Thereafter, on
the condition precedent that both [Decedent] and [Michael]
have died, resigned, become incapacitated, or otherwise ceased
to act as Trustee of this Trust, then [Stephen] shall immediately
become the Successor Trustee of this Trust in his place. . .
Thereafter, on the condition precedent that [Decedent] and
[Michael] and [Stephen] have died, resigned, become
incapacitated, or otherwise ceased to act as Trustee of this
Trust, then [Michael G. Fox] shall immediately become the
Successor Trustee of this Trust in his place. . .

If the trusteeship of this Trust is or becomes vacant for any
reason, the power to appoint a successor shall be exercisable
by: [Decedent] for a period of Thirty (30) days; by [Irmgard]
for a period of Thirty (30) days should [Decedent] for any
reason fail to appoint a successor within his Thirty (30) day
period; by [Michael] for a period of Thirty (30) days should
[Decedent] and [Irmgard] for any reason fail to appoint a
successor within their respective Thirty (30) day periods; by
[Stephen] for a period of Thirty (30) days should [Decedent],
[Irmgard], and [Michael], for any reason fail to appoint a
successor within their respective Thirty (30) day periods; by
[Michael G. Fox] for a period of Thirty (30) days should
[Decedent], [Irmgard], [Michael], and [Stephen] for any reason
fail to appoint a successor within their respective Thirty (30)
day periods; and by a majority of the beneficiaries then alive,
including any of the Settlors’s grandchildren and great
grandchildren then alive who have reached the age of majority,
for a period of Thirty (30) days, should [Decedent], [Irmgard],
[Michael], [Stephen], and [Michael], for any reason fail to

11

appoint a successor within their respective Thirty (30) day
periods. . .

The Settlors expressly reserve the right to change the
Trustee, and/or to appoint the Trustee’s Successor, by
written notification to the Trustee by Certified Mail, Return
Receipt Requested or by Priority Mail, Delivery Confirmation,
at any time prior to the death of either of the Settlors. . .
(Emphasis added.)

Appellants argue that, at a minimum, both provisions are effective,

and the Trust should be interpreted in a manner to sustain the effectiveness

of both. According to the Appellants, the only interpretation which would

accomplish this is that even after Irmgard died, the Decedent, alone, had the

authority to appoint a new successor trustee prior to his death.

Alternatively, by their third assignment of error, Appellants argue that

the intent of the settlors was expressed in the Notice of New Trustee in

which the Decedent attested, “I have authority to modify the Trust as to its

Successor Trustees pursuant to Article VIII. Sections 1 and 2 of the Trust”

and no evidence was presented to controvert the declaration. However,

Appellants assert that if a conflict exists between Article VIII.1 and Article

VIII.2, this creates an ambiguity in the Trust which would render summary

judgment an inappropriate avenue for resolution because a genuine issue of

material fact exists as to whether either settlor had the ability to change the

successor trustees of the Trust after the other died.

A trust is the relationship resulting from the transfer of title to

property to a person to be administered by him as a fiduciary for the benefit

of another. La. R.S. 9:1731. The provisions of the Louisiana Trust Code

shall be accorded a liberal construction in favor of freedom of

disposition. La. R.S. 9:1724. Whenever possible a trust instrument will be

construed so as to uphold the validity of the trust and render the instrument
12

effective. Grant v. Grant, 35,635 (La. App. 2 Cir. 2/27/02), 810 So. 2d

1226. A trust instrument shall be given an interpretation that will sustain the

effectiveness of its provisions if the instrument is susceptible of such an

interpretation. La. R.S. 9:1753.

In construing a trust, the settlor’s intention controls and is to be

ascertained and given effect, unless opposed to law or public policy. Grant,

supra. Inherent within the trust law is the concept of trust indestructibility

and the protection of the trust instrument from any modification or

termination contrary to the settlor’s clearly expressed intent. Richards v.

Richards, 408 So.2d 1209 (La. 1981). Therefore, in Louisiana, there is a

strong public policy effectuating and protecting the settlor’s intent as set

forth in the trust document. J-W Oper. Co. v. Olsen, 48,756 (La. App. 2 Cir.

1/15/14), 130 So. 3d 1017, writ denied, 14-0313 (La. 4/11/14), 137 So. 3d

1217. However, under the scheme of the trust code, even the settlor

generally has no power to modify the terms of the trust after its creation

unless he expressly reserves the power to do so. La. R.S. 9:2021.

In the instant case, it is undisputed that the co-settlors, the Decedent

and Irmgard, created an irrevocable trust, and within the trust is the express

reservation to change the trustee and/or appoint a successor trustee. The

pivotal issue in this regard is whether the provisions of the Trust permitted

one co-settlor, alone, to modify and name the successor trustee in the event

the other co-settlor died. The pertinent language of the two provisions

bestowing this right are as follows:

Article VIII.1
...
The Settlors expressly reserve the right to change the Trustee,
and/or to appoint the Trustee’s Successor, by written
notification to the Trustee by Certified Mail, Return Receipt
13

Requested or by Priority Mail, Delivery Confirmation, at any
time prior to the death of either of the Settlors. . . (Emphasis
added.)

Article VIII.2
The Settlors expressly reserves the right to change the Trustee,
and/or to appoint the Trustee’s successor, by written
notification to the Trustee at any time prior to the death of
the Settlors. (Emphasis added.)

In consideration of the language of the two provisions, in light of the

entirety of the Trust itself, this Court finds no ambiguity or conflict in the

interpretation of either Article VIII.1 or Article VIII.2.

In Holzhauser v. Fagan, 363 So. 2d 1232 (La. App. 4 Cir. 1978), a

decision rendered by our sister court, the Fourth Circuit found, in part, where

one co-settlor of an irrevocable trust filed suit to remove the trustee, he

lacked standing to do so. The instrument provided in relevant part:

XI.
The Settlors reserve the right to remove the Trustee from office
at any time by giving thirty-one (31) days’ notice in writing to
the Trustee provided that all Employer-Participants are given
notice of the Trustee’s removal and the appointment of any
successor Trustee. The Settlors reserve the right to select and
appoint any such successor Trustee.

XIII.
Louisiana and Southern Life Insurance Company, acting alone
and without the consent of the Co-Settlor Denis L. Holzhauser,
d/b/a Greater New Orleans Brokerage Agency, shall have the
exclusive right to amend, modify or revoke this trust at any
time and to any extent said Louisiana and Southern Life
Insurance Company deems it advisable or necessary except that
no amendment, modification and revocation shall divert any
part of the fund as then constituted for any purpose except those
purposes set forth in Article X hereof.

The court noted that the trust, by its express terms, “reserves this right to the

settlors (plural). However, just as one settlor cannot alone select and appoint

a successor trustee under Paragraph XI, one settlor alone cannot remove the

present trustee by simple written notice under the same paragraph. . .”

14

Likewise, a plain reading of the Trust instrument in the present case

clearly provides that both the Decedent and Irmgard were referred to as the

“Settlors” (plural) throughout the provisions of the trust. Specifically, the

beginning of the Trust instrument provided:

CLARENCE DONALD FOX and wife, IRMGARD ANNA
MARIA GERDA LIESEL CHRISTINE FOX hereinafter called
the (“Settlors”). . .

Under this clear language, both the Decedent and Irmgard are collectively

referred to as Settlors (plural) throughout the Trust, so that their rights

within the provisions of the Trust, insofar as they are identified as Settlors,

are intrinsically tied together. Nowhere within the Trust instrument are the

Settlors ever referred to or implied to be “Settlor(s)” so as to sever their

rights individually regarding the right to appoint successor trustees.

There are several instances throughout the Trust in which the

Decedent and Irmgard hold separate rights, and it is clearly identified. For

example, within Article VIII.1, the provision specifies that if the trusteeship

is vacant for any reason, then the power to appoint is exercisable first by the

Decedent, alone, and then by Irmgard should the Decedent fail to act. The

provisions in question address the rights of the Settlors together to name and

appoint new successor trustees. However, even if Article VIII.2 is the more

specific and clear provision as Appellants so urge, this provision too

contemplates that it is the authority of both Settlors (plural) to name and

appoint a new successor trustee.

We must interpret the words of the Trust in their usual, ordinary, or

natural meaning, to maintain the intent of the settlors and maintain the Trust

itself. Here, if either the Decedent or Irmgard intended to maintain this right

in the absence of the other, the Trust would have reflected the singularity of
15

the right as in “Settlor(s).” However, nowhere in the Trust is this ever

implied or stated, and this Court is not inclined to add additional meaning in

either provision of the Trust where none exists. Moreover, “Settlors,” as

provided in the Trust, is not ambiguous considering the introductory

designation for the Decedent and Irmgard at the beginning of the Trust.

Accordingly, we find that these assignments of error lack merit.

Discovery

By their final assignment of error, Appellants argue that they were not

afforded adequate time and opportunity for discovery. Appellants assert that

the full depositions of Michael and Stephen were required to resolve any

discrepancies in the Trust and to determine the Decedent’s intent.

Appellants claim that despite diligent efforts to schedule depositions prior to

the hearing for partial summary judgment, they were met with opposition.

Without the full cooperation of all parties, Appellants assert that there was

inadequate time to conduct a thorough discovery to respond to Michael’s

motion.

Under La. C.C.P. art. 966, a motion for summary judgment is

appropriate only after “adequate discovery.” However, it is not an abuse of

the trial court’s wide discretion in discovery matters to entertain a motion for

summary judgment before discovery has been completed. It is within the

trial court’s discretion to render a summary judgment or require further

discovery. Baker v. Knapp, 45,404 (La. App. 2 Cir. 6/23/10), 42 So. 3d

1044, writ denied, 10-2073 (La. 11/12/10), 49 So. 3d 895.

A defendant’s motion for summary judgment may be made at any

time. La. C.C.P. art. 966(A)(1). The motion may be considered even before

the parties have completed discovery. Id.; Barron v. Webb, 29,707 (La.
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App. 2 Cir. 8/20/97), 698 So. 2d 727, writ denied, 97-2357 (La. 11/26/97),

703 So. 2d 651. It is within the trial court’s discretion to render a summary

judgment, if appropriate, or to allow further discovery. While parties should

be given a fair opportunity to present their claim, there is no absolute right to

delay action on a motion for summary judgment until discovery is

completed. Id. The only requirement is that the parties be given a fair

opportunity to present their claims and, unless a plaintiff shows probable

injustice, a suit should not be delayed pending discovery when it appears at

an early stage that there is no genuine issue of material fact. Id.

In this case, in their opposition to the motion for partial summary

judgment, Appellants claimed that they had inadequate time for discovery

because Michael raised a novel issue for the first time in his motion, and

there was a need to depose Michael and Stephen should the district court

find that any discrepancies existed in the Trust, and to ascertain the intent of

the Decedent. However, as previously noted, whether the Decedent had the

authority, alone, to appoint a new successor trustee was not a new issue

brought before the district court. Moreover, additional discovery, in this

case, would not change the outcome of the district court’s decision.

The Settlors’ (plural) intent can be clearly ascertained from the four

corners of the Trust itself, and no ambiguity exists within either of the

provisions of the Trust in this regard. The very beginning of the Trust

indicates that Settlors refers to both the Decedent and Irmgard, so there is no

question as to the intent of either the Decedent or Irmgard that only both, as

co-settlors, could appoint a new successor trustee before one or the other

settlor died. The Trust instrument is clear that both settlors had to act to

appoint and name a new successor trustee.
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This Court is sensitive to the needs of the parties in this case and

understands the natural frustrations that may arise from sensitive familial

dynamics, especially in light of the loss of a loved one. However, even in

the absence of additional depositions, Appellants were able to respond and

file two briefs in response to Michael’s motion on the issue based on the

language of the trust itself. Given this, we find that no additional discovery

was required to ascertain intent when it is clearly reflected within the Trust.

We, therefore, find that the district court acted within its wide

discretion in proceeding with the motion for summary judgment.

CONCLUSION

For the reasons set forth above, we find that the partial summary

judgment was properly granted, and we hereby affirm the district court’s

judgment. Costs are assessed to the Appellants.

AFFIRMED.

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