Succession of Joe Andy McKinley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-503

SUCCESSION OF JOE ANDY MCKINLEY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. P-20140058
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,
Judges.

AFFIRMED WITH INSTRUCTIONS.

James L. Brazee, Jr.

Evan T. Edwards

Brazee & Edwards

2901 Johnston Street, Suite206

Lafayette, LA 70503

(337) 237-0492

COUNSEL FOR APPELLANT:
Kevin Jay McKinley

Theodore G. Edwards, IV
Robert D. Felder
Jordan T. Precht
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards
8108S. Buchanan Street
Lafayette, LA 70501
(337) 237-1660
COUNSEL FOR APPELLEE:
Kenneth Wayne McKinley

GREMILLION, Judge.

Kevin McKinley appeals the trial court’s judgment ordering reimbursement
to the estate of his father, Joe Andy McKinley, awarding ownership of a Browning
“Sweet Sixteen” shotgun to his brother, Kenneth, and other matters related to the
succession. For the following reasons, we affirm with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Joe Andy McKinley died testate on January 24, 2014. The appellant, Kevin
McKinley, and his brother, Kenneth McKinley, are the only surviving heirs of Joe.
On January 27, 2014, Kenneth initiated the succession of his father by filing a
petition for rule to show cause to appoint an administrator, for a temporary
restraining order, and for succession inventory. On February 28, 2014, Kevin
responded by filing a petition for rule to show cause to probate a notarial testament
and for confirmation of an independent administrator, namely himself. Following
a mediation, the brothers entered into a settlement agreement in July 2014.
Subsequently, Kevin terminated his counsel and failed to move forward with the
terms of the settlement agreement.

In September 2014, Kenneth filed a motion and order for telephone status
conference and to enforce the settlement agreement. Kevin’s former counsel,
Steven G. Durio, filed a petition for intervention for the unpaid fees of $29,976.99
owed to his firm by Kevin.

In late October 2014, Kenneth filed a motion and order to reset the hearing
to enforce the settlement agreement. Following a November 3, 2014 hearing,
Kevin and Kenneth entered into a joint stipulation and consent judgment in which
Kevin stipulated he would take various actions in accordance with settling the
estate, such as composing lists and obtaining valuations, paying the monies owed

to his former lawyer, and deferring the ownership of the Browning “Sweet

Sixteen” shotgun to future court proceedings. Further, claims for reimbursement
would continue to be negotiated.

On January 12, 2015, Kenneth filed a motion and order to compel and for
contempt for Kevin’s failure to comply. On January 29, 2015, Durio filed a
motion and order for attorney fees because his firm had yet to be paid for its
services. Various motions were subsequently granted relating to the production of
financial documents. On April 10, 2015, Durio again filed a motion and order for
the payment of the fees owed to the firm by Kevin.

On May 15, 2015, Kevin filed a rule to show cause why he should not be
reimbursed by the estate for the payment of the attorney fees as provided for in the
Trust Agreement, urging that Kenneth was the “sole cause of the extensive
litigation in this matter.” He further urged that the monies owed Durio be paid out
of the trust account and deducted from Kenneth’s share.

On August 7, 2015, Kenneth filed a rule to show cause why he and/or the
estate should not be reimbursed for estate monies expended by Kevin for his own
personal benefit totaling $92,057.76. Kenneth further requested reimbursement for
property taxes that he paid out of his personal funds for his father’s home.
Kenneth also requested reimbursement of assorted expenses incurred by Kevin.

On August 25, 2015, Kevin filed a rule for expedited partial distribution of
funds as a portion of inheritance which Kenneth opposed. Kevin thereafter
dismissed his motion. On September 28, 2015, Kevin filed an answer and
objection to Kenneth’s rule for reimbursement and Kevin filed motions for
contempt, sanctions, attorney fees, and reimbursement. Kenneth thereafter filed
oppositions to the motions.

On October 20, 2015, Kevin filed a motion for appointment of an

independent administrator, for authority to act, and for contempt. On October 30,

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2015, Kenneth filed a motion for expedited in-person status conference to address
Kevin’s new motion for contempt (“and the repeated personal attacks on Kenneth
and counsel for Kenneth therein”). The trial court issued a judgment on rules
following a hearing on October 26, 2015. The trial court overruled Kevin’s
exceptions of prescription, vagueness and ambiguity. It further ordered that
Kevin’s motion for contempt and sanctions would be deferred until after a trial on
the merits of the reimbursement claims.

Following a bench trial in January 2016, the trial court found that Kevin
breached his fiduciary duty owed to his father and ordered that Kevin reimburse
the estate the sum of $39,441.94 for personal expenses paid for with his father’s
credit cards and checks he issued to himself in excess of his monthly allowance.
The trial court also awarded the Browning “Sweet Sixteen” shotgun to Kenneth
because his bid of $850.00 exceeded Kevin’s bid of $777.00. The trial court
ordered that Kenneth be reimbursed $1,320.69 for taxes he paid with personal
funds on behalf of the estate. Finally, the trial court ordered that Kevin reimburse
the estate $4,000.00 received in April 2014 as an allowance payment after his
father’s death. In its judgment, the trial court set forth various instructions for
concluding succession matters. Kevin now appeals and assigns as error:

1. The Trial Court erred in finding that Appellant breached a

fiduciary duty by self-dealing and ordering reimbursements
against the Appellant.

2. The Trial Court erred in failing to uphold the provisions of the

Trust by failing to reimburse attorney fees, court costs, and

other expenses of the Appellant in direct contravention of the
terms of Paragraph 4.9 of the Trust.

3. The Trial Court erred when it held that the Browning “Sweet
Sixteen” Shotgun (hereinafter referred to as “the shotgun”) had
not previously been a completed donation or gift made to the
Appellant, and ordered the parties to bid on the shotgun to
establish ownership.

4. The Trial Court erred in failing to include a $14,528.654
reduction of Kenneth McKinley’s share of his inheritance in its
written ruling.

5. The Trial Court erred in finding that Appellant had caused a
delay in removing Decedent’s personal effects from
Cornerstone Assisted Living (hereinafter referred to as
“Cornerstone”) and assessing the sum of $3,173.42 in rent
against Appellant.

DISCUSSION

The will executed by Joe in October 2005, stated in part:

I leave my entire estate to Trustee for the McKinley Living
Trust of 2005, wherever said estate is situated at the time of my
death. I declare that the distribution plan for assets held in said
trust, of even date hereof, as amended or restated, should be
incorporated into the Will in the event that the trust is revoked
or held invalid.

I name Kenneth W. McKinley executor of my Will, to serve
without bond.

Executor may act as Independent Administrator or Independent
Executor pursuant to La.Code Civ. P. Art. 3396.2

On January 20, 2012, Joe executed a Codicil to his last will and testament
which stated in part:

1) I hereby remove Kenneth W. McKinley as executor of my Will
and replace with Kevin J. McKinley

2) With the exception of this change, my Will executed on
October 28, 2005, shall remain in full force and effect.

Kevin McKinley testified that in September 2011, his father fell and
required hospitalization. At the time, he was living in Virginia. Kevin thereafter
moved to Louisiana; however, when asked if he came to Louisiana to help take
care of his father he replied, “Not really.” Kevin lived in his father’s house rent-
free while his father lived in various assisted living facilities, with the last one
being Cornerstone. Kevin said that he used his father’s vehicle and was given an

allowance by his father of initially $3,000 per month that increased to $4,000 per

month. Kevin said that he paid a sitter to stay with his father for five hours a day
five days a week out of his father’s funds.

Kevin admitted that Kenneth had power of attorney in 2011, when their
father was first hospitalized, and he would question Kevin as to funds he was using.
Kevin said that he started talking to his father about changing the power of
attorney to him, but his father’s attorney refused to do so. Kevin found another
attorney to draft a power of attorney naming him, and he picked his father up from
the retirement home and drove him to the attorney’s office so that the power of
attorney could be executed in his favor. Kevin testified that his intention was only
to revoke Kenneth’s power of attorney and not to get one for himself. Kevin was
questioned:

Q. And, once that was done, you felt you could now use your

father’s money without Kenneth prodding into what the

money was being used for, long story short, right?

A. — Long story short was that dad allowed me to use his money,
and I did so.

Q. And the fact is that, once you got the power of attorney over
your father, over the next two years, you would and you did
repeatedly use your father’s bank cards and credit cards for
your own personal benefit. That is, in fact true, is it not, Mr.
McKinley?

A. — It wasn’t that often that I used his cards for by benefit. And,
when I did, it was with dad’s permission.

Kevin was then questioned about various purchases that he admitted were
not for his father’s benefit, such as numerous vacations and trips, payment of his
union dues, hobby supplies, emergency rations, cash withdrawals, and
Amazon.com purchases. However, Kevin could not remember what they were for.
Kevin testified that he kept notes on his computer of what the money was spent on,

but he failed to provide those notes in discovery.

Kevin then testified regarding the trust established by his father. Kevin said
his father named him the successor trustee, and that the same attorney who
prepared the power of attorney did the paperwork. However, that attorney refused
to make any more amendments to the trust as requested by Kevin, but his current

attorneys did so in November 2012. Those amendments include the addition of

Paragraph 4.9 which stated:

“Additional expenses: Any costs or expenses incurred by the
trustee, either during the life of the settlor or following his death,
that are the result of actions and/or disputes by either principal
beneficiary and/or in addition to normal expenses incurred in the
administration of the trust shall be assessed against the principal
beneficiary causing said expenses and shall reduce the share said
beneficiary would have received under the terms of Paragraph 4.1
above.”

“T further direct that the trustee shall be the sole determiner as to
whether or not a principal beneficiary has caused additional cost
and expenses and the amount thereof.”
Kevin admitted that this provision was his idea, and when asked if he could
see how this was self-serving he said that, “While it was originally my idea and I
proposed it to dad, dad was onboard with it.” He further admitted that the trust
was modified so that loans given to him during his lifetime by his father would not
have to be reimbursed. However, the same courtesy was not extended to Kenneth,
and Kevin had his attorneys specifically note that a $14,628.65 loan made to
Kenneth was not excused. Kevin admitted to some of the loans made over the
years as noted by the inclusion of the word “loan” on the check. He was then
questioned about his father’s suspicious signature on some checks. He also
continued to receive his $4,000 allowance even after this father died claiming:
Q. __... You claim that the monies you were paid afterwards on
some months but not others was just the bank arbitrarily
effectuating an automatic draw into your account for some

months, and then they would stop, and they would do it
again a few months later? That’s your testimony here today?

A. Yes.

Q. _ It’s your testimony that this was all the bank and had nothing

to do with you? This wasn’t you going to the bank, pulling
out money, sometimes, when you needed it?

A. _ It was not.

Kevin was then questioned about the settlement agreement in which he
agreed to do certain things in order to sell his father’s house such as vacate it and
remove his personal property. Kevin admitted that he had not done so because he
wants to the buy house. He further had the locks changed so that his brother could
not enter the house. But, he had not taken any steps to buy the house such as
submitting a proposal with a fair market value purchase price.

On direct examination, Kevin testified that he had been a merchant marine
officer working on ships out of the country; however, he was unemployed when he
came to Louisiana in September 2011. He temporarily worked at Hobbytown part-
time but has been unemployed since his father passed away in January of 2014.
Kevin testified that he had his father’s permission to make all of the purchases for
travel and items on Amazon.com. He described buying certain things for his father
on Amazon and said that he had his father’s permission to buy hobby and craft
supplies, but that it was not a common practice. He said his father allowed him to
pay his union dues and order a gun safe.

Regarding the Browning “Sweet Sixteen” shotgun, Kenneth said that his
father told him one day that his grandfather wanted him to have it and that his
father wanted to make sure he knew about it. Kevin said that he asked his father to
hang on to it for him. Kevin further stated that his father never asked him to make
any house repairs, and the house was older and in need of repair when he got there.

Regarding some of the loans he received from his father, the following

exchange occurred:

Q. ... All these loans that you described throughout your
testimony today, what were the terms of the loans?

A. The terms weren’t specifically mentioned, but, at the time
that I made them, it was my understanding that I was going
to have to pay that back when the — when the trust was
settled.

Q. You understood that you were going to have to pay it back
when the trust was settled. Why did you understand that?

A. Well, to me, that’s what “loan” means.

Q. Okay. So, then, when the trust was amended to provide that
you didn’t have to pay back loans, that was a big advantage
to you wasn’t it?

A. _ I guess it was.

Q. Because you never intended, during your father’s lifetime, to
make any payments back to him, did you?

A. Yes, I did.

Q. You never intended, while your father was alive, to make
any loan payments to him for money he had loaned you, did
you?

A. Not while he was alive, no. It was my understanding that
that would come out of my share of the trust.

Kenneth McKinley testified that he currently lives in Arizona and is a
captain in the United States Navy. Kenneth discussed the power of attorney his
father gave him in September 2011, in order to pay his bills. Kenneth said that he
was very transparent and gave Kevin the passwords and account numbers so that
he could see the bills were being paid. Kenneth was the trustee of the trust and
executor of his father’s will. Kenneth described in detail how his dad, a retired
CPA for Amoco Oil, kept meticulous records of money that he had loaned or given
to himself or Kevin and how he was extremely fair and “wanted to make sure that

each of us got equal amounts.” For example, Joe loaned Kenneth $30,000 for a

down payment on a house but had advanced Kevin $105,000; thus, Joe specified in
the trust that when the account was distributed upon his death, Kenneth was to
receive an additional $70,000.

Kenneth then discussed the change in power of attorney in January 2012. He
testified that he had no conversations with his father or brother about the change.
He said:

A. Once the power of attorney had been changed, there was no further

communication from Kevin, whatsoever. And I immediately flew
down to Lafayette. First of all, I call Jim Leonard [the attorney
who refused to further amend the POA]. I said: I got this letter in
the mail. And he says: You’d better get down here now and
address it. So I did.

Kenneth said that Leonard recommended that he take further actions.
Kenneth said that Kevin has never spoken to him since he had the power of
attorney changed to himself.

Kenneth went on to describe how Kevin had refused to move forward with
the sale of the house as he agreed to in the settlement agreement, and had not
cooperated with the distribution of the personal property remaining in the house as
agreed to in the settlement, including two guns that Kevin had only produced the
day before trial. Kenneth testified that everything had been decided in the
settlement agreement executed over a year-and-a-half prior to trial, with only the
reimbursement claims to remain, but that Kevin had not been cooperative in
effectuating the settlement agreement. Kenneth described the deplorable state of
his father’s house and large quantities of weapons and ammunition, model
airplanes, helicopters, remote control devices, and a large gun safe that arrived
once Kevin moved in. Kenneth said that his father specifically requested that

certain work be done to his house once he entered the assisted living facility,

including the replacement of vinyl siding and gutters, and that his father had

researched the companies and selected ones for the work but that Kevin never had
any of the work done.

Kenneth then reviewed the numerous credit card statements admitted into
evidence and described how he excluded any amounts that could conceivably be
construed as benefiting his father, such as all grocery and drugstore bills, gas bills,
and cash to pay for his father’s sitters. Kenneth said that Kevin made large ATM
withdrawals on a regular basis that his father would never have approved of
because “Dad cherished a penny.” Kenneth then testified regarding each of the
accounts and the unexplainable amounts including two checks totaling $19,000
made payable to Kevin, one of which stated “loan” on the check (a $12,000 check);
an NRA Visa with multiple charges related to travel; a Chase credit card with
multiple Amazon.com purchases, late fees, and interest; and travel expenses and
other accounts which Kenneth and his attorney went over in detail as to the items
for which he was requesting reimbursement.

Kenneth testified about the $6,346.84 payment to Cornerstone. Kenneth
believed that Kevin left the goods in the apartment and incurred the additional cost
that the estate would not have had to pay had he timely removed them.

Durio, Kevin’s former attorney, testified regarding his conversations with
Kenneth’s counsel about removing Joe’s belonging from Cornerstone. Durio had
informed Kenneth’s counsel that Kevin wished to remove the belongings and place
them in storage, even though Kenneth had offered to hire a mover to do so. Durio
testified that several months later he received a call from Cornerstone advising that
Kevin had not removed the items from Joe’s room, and that they had not received
payment for the room for the prior two months. Durio said that Kevin claimed that
he did not remove the items because he did not have the funds to pay the mover.

The attorneys immediately consented to an order allowing Kevin to withdraw the

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funds so that the move could be accomplished. Durio testified that had Kevin
requested the funds in January, the move would have been effectuated much
sooner. Durio further testified that Kenneth’s counsel never intentionally lied or
misrepresented the truth as to delay the proceedings. Durio was questioned:

Q. ... Do you believe that your attorney’s fees and/or the
amount of attorney’s fees that accrued were the result of any
intentional misrepresentations, lies, or inappropriate delay
tactics engaged in buy our firm on behalf of Kenneth
McKinley?

A. Absolutely not.

Michael Todd Cope, a real estate appraiser, testified that he was hired to
appraise Joe’s home. He described it as being in a general state of disrepair. He
said that the numerous problems to be repaired would have existed before Joe’s
passing in January 2014. Cope gave detailed descriptions of the entire house. He
conducted a market valuation and came up with a value of $155,000 for the house;
however, he did not feel it would sell for that amount once a foundation inspection,
HVAC inspection, and a home inspection were conducted. Cope opined that if a
contractor were to buy the property, rehab it, and flip it, the selling price would be
in the neighborhood of $130,000 to $140,000 at best.

Manifest Error Standard of Review

An appellate court, in reviewing a [factfinder’s] factual conclusions,
must satisfy a two-step process based on the record as a whole: there
must be no reasonable factual basis for the trial court's conclusion, and
the finding must be clearly wrong. Kaiser v. Hardin, 06-2092, pp. 11—
12 (La.4/11/07), 953 So.2d 802, 810; Guillory v. Insurance Co. of
North America, 96-1084, p. 5 (La.4/8/97), 692 So.2d 1029, 1032.

This test requires a reviewing court to do more than simply review the
record for some evidence, which supports or controverts the trial
court's finding. The court must review the entire record to determine
whether the trial court's finding was clearly wrong or manifestly
erroneous. Guillory, 09-0075 at p. 16, 16 So.3d at 1118: Kaiser, 06-
2092 at p. 12, 953 So.2d at 810. The issue to be resolved on review is
not whether the [factfinder] was right or wrong, but whether the
[factfinder’s][ ][ ] conclusion was a reasonable one. Rosell v. ESCO,

11

549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716,
724 (La.1973).

McGlothlin v. Christus St. Patrick Hosp., 10-2775, pp. 16-17 (La.7/1/11), 65
So.3d 1218, 1231.
Fiduciary Duty-Reimbursement

Generally, whether a fiduciary duty exists, and the extent of that duty,
depends upon the facts and circumstances of the case and the
relationship of the parties. As a basic proposition, for a fiduciary duty
to exist, there must be a fiduciary relationship between the parties...

A fiduciary relationship has been described as “one that exists
‘when confidence is reposed on one side and there is resulting
superiority and influence on the other.’ ” Plaquemines Parish
Commission Council v. Delta Development Company, Inc., 502 $o0.2d
1034, 1040 (La.1987), quoting Toombs v. Daniels, 361 N.W.2d 801,
809 (Minn.1985).

The word “fiduciary,” as a noun, means one who holds a
thing in trust for another, a trustee; a person holding the
character of a trustee, or a character analogous to that of
a trustee, with respect to the trust and confidence
involved in it and the scrupulous good faith and candor
which it requires; a person having the duty, created by his
undertaking, to act primarily for another's benefit in
matters connected with such undertaking.

State v. Hagerty, 251 La. 477, 492, 205 So.2d 369, 374 (1967),
quoting 36A C.J.S. Fiduciary, p. 381. One is said to act in a fiduciary
capacity “when the business which he transacts, or the money or
property which he handles, is not his own or for his own benefit, but
for the benefit of another person, as to whom he stands in a relation
implying and necessitating great confidence and trust on the one part
and a high degree of gocd faith on the other.” Hagerty, 251 La. at 493,
205 So.2d at 374-375, quoting BLACK’S LAW DICTIONARY (4th
ed.1951).

The term “fiduciary” is defined in the Uniform Fiduciaries Law, LSA-
R.S. 9:3801(2), as follows:

“Fiduciary” includes a trustee under any trust, expressed,
implied, resulting or constructive, executor, administrator,
guardian, conservator, curator, receiver, trustee in
bankruptcy, assignee for the benefit of creditors, partner,
agent, officer of a corporation, public or private, public
officer, or any other persons acting in a fiduciary
capacity for any person, trust or estate.

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The Uniform Fiduciaries Law appears in the Civil Law
Ancillaries under Code Title XV-Of Mandate. By definition, a
mandate is “a contract by which a person, the principal, confers
authority on another person, the mandatary, to transact one or more
affairs for the principal.’ LSA-C.C. art. 2989. The defining
characteristic of a fiduciary relationship, therefore, is the special
relationship of confidence or trust imposed by one in another who
undertakes to act primarily for the benefit of the principal in a
particular endeavor. Plaquemines Parish Commission Council, 502
So.2d at 1040; Hagerty, 251 La. at 493, 205 So.2d at 374-375
Scheffler v. Adams and Reese LLP, 06-1774, p. 6-7 (La. 2/22/07), 950 So.2d 641,
647-648. Further, “The mandatary is bound to fulfill with prudence and diligence
the mandate he has accepted. He is responsible to the principal for the loss that the
principal sustains as a result of the mandatary’s failure to perform.” La.Civ.Code
art. 3001. In order to prove breach of a fiduciary duty, the claimant must show that
the party acted fraudulently, breached the trust bestowed upon him, or took actions
that exceeded those granted to him. Sampson v. DCI of Alexandria, 07-671
(La.App. 3 Cir. 10/31/07), 970 So.2d 55.
The trial court stated:
He had a duty, as a fiduciary, not to self-deal. He has done
nothing to document that any of this was other than self-dealing.
All his response is, is, my dad teld me I could do it.
Now, I agree on things when his father signed the check.
But there’s been no testimony or evidence that his father, in any
way, signed off on checks to pay these credit card bills or even saw

the credit card bills.

And there’s a lot of stuff charged on this that cannot, in any
way, be imputed to benefit the decedent in this case — Mr.;
McKinley, at the time he was alive.

....} [H]e was clearly self-dealing by spending the money
on himself for his personal expenses.

We find no error in trial court’s finding that Kevin breached his fiduciary
duty to his father by self-dealing. The trial court did not find Kevin’s overall

testimony credible nor his claim that his father authorized him to make purchases

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and use his credit cards to travel. Kevin argues that the “Power of Attorney, Trust,
and other documents show the intention and understanding of the Decedent in
direct contrast to the allegations of the Appellee.” We disagree. A power of
attorney does not authorize the grantee the right to self-deal. The nature of Joe’s
past dealings with his sons, his desire to keep things “even,” and his overall frugal
and precise nature as a CPA indicate that he would not have allowed Kevin to
make all of these purchases and travel at his expense, particularily without an
accounting. Kevin readily admitted that save for some Old Spice deodorant, some
candies, and a toilet ring, all of the numerous Amazon.com purchases along with
purchases of guns and hobby supplies were for his personal benefit. Further,
Kevin admitted that he did quite a bit of traveling on his father’s dime, even
though he had no personal expenses except for his $950 mortgage in Virginia. He
received a $3,000 to $4,000 a month allowance from his father.

Kevin further argues that the trial court erred in ordering him to reimburse
the estate for the $19,000 in checks drawn on the Whitney account because the trial
court stated it was “not going to order any repayment of any checks to Mr. Kevin
McKinley that were signed by his father.” Kevin also argues that the third
amendment to the trust clearly specifies that any loans made during Joe’s lifetime
were forgiven. Clearly, the trial court was referring to numerous other
subsequently written checks besides the two in question, which Kevin himself
admitted in testimony above were loans which he expected to be repaid from estate
funds at settlement. It was reasonable for the trial court to conclude that the two
checks totaling $19,000 were loans which would have to be repaid.

Additionally, Kevin’s self-serving amendment to the trust agreement is
immaterial for a number of reasons, the least of which is his breach of his fiduciary

duty to his father. Once the parties entered into the settlement agreement of July

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2014, which “related to the succession of their father, Joe Andy McKinley .. .
and/or The McKinley Living Trust of 2005,” the trust document and its self-
serving amendments created by Kevin became moot. The parties agreed in the

settlement agreement:

6. Each Party reserves the right to negotiate with the other
and/or seek a Court determination of any reimbursements
that said Party feels are due the Estate of Joe Andy
McKinley and/or the McKinley Living Trust of 2005 and
arising out of the activities of the said Party prior to or
after the death of Joe Andy McKinley and the ultimate
conclusion of those claims, whether by settlement or
litigation will be satisfied out of the remaining balance of
Merrill Lynch Account No. XXX-XXXXX.
Accordingly, Kevin’s claim that the trust authorized the excusal of any checks
written to him was a reimbursement claim to be determined without reference to
the trust amendments. This assignment of error is without merit.
Reimbursement of Assorted Costs
Kevin, again relying on the trust agreement paragraph 4.9, argues that all
attorney fees that he is responsible for paying should be paid out of the trust
because it was in his sole discretion to determine who was the cause of the delay in
the litigation. Although the trial court did not address whether this provision of the
trust was applicable, for the reasons noted above, we find that the settlement
agreement essentially did away with the provisions of the trust document.
Moreover, from a factual standpoint, even if the provision were valid, the trial
court clearly found that Kevin was the sole cause of the delay and the extensive
litigation costs that ensued were his personal responsibility and would not be

imputed to the estate. We find no error in that finding and this assignment is

without merit.

ID

Browning “Sweet Sixteen” Shotgun

Kevin argues that a manual donation of the Browning “Sweet Sixteen”
shotgun was confected, and he was the rightful owner of the gun. Louisiana Civil
Code Articles 1543 requires that in order for a valid donation of a corporeal
movable to be completed, there must be delivery of thing to the donee without any
other formality. A person may acquire possession of a thing through another who
takes it for him and in his name. La.Civ.Code art. 3428. There was some dispute
about who originally even owned the gun (the maternal or paternal grandfather).
The trial court clearly did not believe Kevin’s story that his father took him into the
room and told him that his grandfather wanted him to have the gun and that Kevin
asked his father to hold it for him. Again, Kevin’s credibility was seriously called
into question throughout this trial, and it was reasonable for the trial court to
conclude that a valid donation of the gun did not take place. There is no manifest
error in trial court’s finding that a valid manual donation had not been made to
Kevin and, therefore, Kenneth rightfully won ownership of the gun through the
sealed bidding method instituted by the trial court. Accordingly, this assignment
of error is without merit.
Reduction of Kenneth’s Share in Judgment

Kevin argues that the trial court erred in failing to reduce Kenneth’s
inheritance by $14,628.65 in the final judgment. This is a moot issue, as Kenneth
admitted in brief this was an oversight and that his share is to be reduced by the
$14,628.65. Accordingly, we order that the trial court amend the judgment to

include the reduction of Kenneth’s share.

16

Cornerstone Delay

The trial court found:

Insofar as the Cornerstone bill is concerned, there was a lot

of back and forth about it, but one thing is clear — that, as between

the attorneys, there was a clear understanding, shortly after Mr.

McKinley’s death, that Kevin wanted to be the one to move the

items out, and that he was going to undertake to do so.

And, apparently, there was substantial delay before it came

to light that the items had not been removed, and that he gave the

excuse of being, he didn’t have permission to do. It’s also clear —

and he even admitted it — that, during that time, he was using the

room, for some reason.
We find no error in the trial court’s finding that Kevin was the cause of the delay
and, therefore, must reimburse the estate $3,173.42, which is half of the $6,346.84
bill. Kenneth initially offered to handle the removal of Joe’s items from
Cornerstone and move them to a storage facility, but Kevin insisted that he would
do it. Kevin then visited Cornerstone on a daily basis to use the internet and for
other unknown reasons. His excuse that he did not have permission to remove the
items because of the initial restraining order that was granted to Kenneth is simply
not credible when there was a clear understanding that Joe’s remaining personal
property was to be removed from the assisted living facility as soon as possible to
minimize costs. Accordingly, this assignment of error is without merit.

CONCLUSION

The trial court’s findings were reasonable in light of the evidence and,
therefore, cannot be manifestly erroneous. Accordingly, the judgment of the trial
court is affirmed. The trial court is instructed to amend the final judgment to
include the reduction of $14,628.65 from Kenneth’s share. All costs of this appeal

are assessed against the appellant, Kevin McKinley.

AFFIRMED WITH INSTRUCTIONS.

V7