Ted Wayne Cox, Jr. and April Ann Cox v. Lenzie Beth Dupuis

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-455

TED WAYNE COX, JR. AND APRIL ANN COX

VERSUS

LENZIE BETH DUPUIS

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-307-24
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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GUY E. BRADBERRY
JUDGE

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Court composed of Shannon J. Gremillion, Charles G. Fitzgerald, and Guy E.
Bradberry, Judges.

AFFIRMED.

Michael J. Daspit
Daspit Law Office, APLC
107 East Claiborne Street
Saint Martinville, Louisiana 70582
(337) 394-3290
COUNSEL FOR DEFENDANT/APPELLANT:
Lenzie Beth Dupuis

James F. DeRosier
DeRosier Law Firm, LLC
125 West School Street
Lake Charles, Louisiana 70605
(337) 474-0820
COUNSEL FOR PLAINTIFFS/APPELLEES:
April Ann Cox
Ted Wayne Cox, Jr.

BRADBERRY, Judge.

Defendant Lenzie Beth Dupuis appeals the judgment of the trial court,

removing her as trustee of The Ted Wayne Cox, Sr. Irrevocable Trust (the Trust)

and appointing Plaintiffs Ted Wayne Cox, Jr. and April Ann Cox as co-trustees. For

the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 19, 2013, Ted Wayne Cox, Sr. executed three documents: (1) a Last

Will and Testament, (2) the Trust, and (3) a power of attorney naming his wife,

Lenor Cox, as his agent. The Trust listed Lenor Cox; Mr. Cox, Sr.’s two children

from a previous marriage, Ted Wayne Cox, Jr. and April Cox; and Mr. Cox Sr.’s

grandchildren as successor income beneficiaries and principal beneficiaries of

certain immovable property and assets. The Trust named Mr. Cox, Sr. the sole

trustee; however, in the event he could not serve as trustee, the Trust named Lenor

Cox sole trustee. In the event Lenor Cox could not serve as trustee, Lenzie Dupuis,

Lenor Cox’s daughter, was named sole trustee.

Mr. Cox, Sr. died on January 16, 2020. Upon his death, Lenor Cox became

the sole trustee of the Trust. Thereafter, Ted Cox, Jr. and April Cox were presented

with a document dated October 23, 2014, purporting to amend the Trust. The

amendment disinherited Mr. Cox Sr.’s children and grandchildren and named Lenor

Cox as the sole income and principal beneficiary. In November 2020, Lenor Cox

transferred five immovable properties from the Trust to herself. On January 7, 2021,

Ted Cox, Jr. and April Cox filed a petition to open the succession of their father.

Within the succession proceeding, Ted Cox, Jr. and April Cox filed a petition that

alleged the amendment to the Trust was procured by Lenor Cox’s undue influence

and sought a declaration from the court invalidating the amendment.

A trial was held in February 2023, after which the trial court took the matter

under advisement. Written reasons were issued in April 2023, with a judgment

signed in May 2023. The trial court ruled in favor of Ted Cox, Jr. and April Cox,

invalidating the amendment and finding that the Trust documents executed by Ted

Cox, Sr. on March 19, 2013, be the valid and operational Trust.

The trial court found that the medical evidence demonstrated that Ted Cox,

Sr. was experiencing problems with dementia and Alzheimer’s disease and had

difficulty making decisions more than a year prior to the amendment of the Trust.

Further, Lenor Cox was aware of his condition and isolated him from his family and

friends, including his children, and limited their contact. When contact did occur,

Lenor was there to monitor what was said. The trial court found that Lenor actively

interfered in the relationship between Ted Cox, Sr. and his children, leading to the

deterioration of said relationship. The trial court concluded that the amendment to

the Trust would not have occurred absent the undue influence of Lenor. As a result

of this judgment, Lenor Cox was removed as sole trustee of the Trust; the November

2020 act of transfer was nullified as well as all alienations of assets made by Lenor

Cox; and, in accordance with the Trust documents, Lenzie Dupuis was appointed

sole trustee. Lenor Cox appealed.

On May 15, 2024, this court issued an opinion in Succession of Cox, 23-773

(La.App. 3 Cir. 5/15/24), 388 So.3d 523, wherein the trial court’s judgment was

affirmed. On May 22, 2024, Ted Cox, Jr. and April Cox filed a Petition to Remove

Trustee with Incorporated Memorandum in a separate docket number, which is the

subject of this appeal. The petition requests Lenzie Dupuis be removed as sole

trustee of the Trust in accordance with La.R.S. 9:1789, alleging that the loyalty she

feels toward her mother interferes with her duties as trustee. A hearing on the matter

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was held on July 2, 2024. The trial court signed a judgment on July 18, 2024,

removing Lenzie Dupuis as trustee of the Trust, appointing Ted Cox, Jr. and April

Cox as co-trustees, and ordering Lenzie Dupuis to refrain from transferring or

liquidating any assets of the Trust or making any distributions from the Trust without

the express written consent of Ted Cox, Jr. and April Cox. Lenzie Dupuis now

appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred in removing Lenzie Dupuis as trustee of the Ted
Wayne Cox, Sr. Irrevocable Trust.

2. The trial court erred in enjoining Lenzie Dupuis from
transferring/liquidating any assets of the trust or making any
distributions without the written consent of Ted Wayne Cox, Jr. and
April Cox.

LAW AND DISCUSSION

The removal of a trustee is governed by La.R.S. 9:1789(A), which states, “[A]

trustee shall be removed in accordance with the provisions of the trust instrument or

by the proper court for sufficient cause.” The Trust at issue does not include a

section for removal of a trustee. Sufficient cause for the removal of a trustee

“requires allegations of conflict of interest, hostility, and impairment or interference

with proper administration of the trust.” McCaffery v. Lindner, 18-163, p. 5 (La.App.

5 Cir. 12/27/18), 263 So.3d 1205, 1210, writ denied, 19-140 (La. 3/18/19), 267 So.3d

89. “Mere hostility or incompatibility between the trustee and a beneficiary is not

sufficient grounds for removal; there must be factual allegations that the hostility

interfered with or adversely affected the administration of the trust for it to be a

reason for removal.” Martin v. Martin, 95-466, p. 4 (La.App. 4 Cir. 10/26/95), 663

So.2d 519, 521–22, writ denied, 95-2806 (La. 1/29/96), 666 So.2d 682.

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Louisiana Revised Statutes 9:2082(A) provides, “A trustee shall administer

the trust solely in the interest of the beneficiary.” “When there is more than one

beneficiary, the trustee must administer the trust for the benefit of all the

beneficiaries.” In re Eleanor Pierce (Marshall) Stevens Living Trust, 14-697, 14-

827, 14-828, p. 13 (La.App. 3 Cir. 2/18/15), 159 So.3d 1101, 1110. “The duty of

loyalty is the fundamental duty owed by a trustee as a fiduciary.” Thomas v. Kneipp,

43,228, p. 7 (La.App. 2 Cir. 5/28/08), 986 So.2d 175, 181.

The Louisiana Supreme Court in Succession of Dunham, 408 So.2d 888, 900

(La.1981), explained:

[W]hile mere animosity is not sufficient ground for removal of the
trustee, the statutory provisions relative to the responsibilities of a
trustee are very rigid and hold the trustee to an even higher fiduciary
responsibility to his beneficiary than that owed by a succession
representative to heirs. The very word “trustee” implies the strongest
obligation on the part of the trustee to be chaste in all dealings with the
beneficiary.

Regarding review of the trial court’s ruling, the removal of a trustee is subject

to a manifest error or clearly wrong standard of review. McCaffery, 263 So.3d 1205.

“The issue to be resolved by a reviewing court is not whether the trier of fact was

right or wrong, but whether the factfinder’s conclusion was a reasonable one.”

Lafayette City-Parish Consol. Gov’t. v. Shah, 24-273, 24-274, 24-275, 24-276, 24-

277, p. 9 (La.App. 3 Cir. 11/20/24), ___So.3d___, ___. As long as the trial court’s

ruling is reasonable in light of the record, the court of appeal cannot reverse, even if

it would have ruled differently. Id.

We note that the trial judge in the present case presided over Ted Cox, Sr.’s

succession proceedings, wherein he invalidated the purported amendment to the

Trust and removed Lenor as trustee. At the hearing on the removal of Lenzie as

trustee, counsel for Ted Cox, Jr. and April formally requested the trial court take

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judicial notice of all proceedings in the succession, including the evidence,

testimony and rulings. This request was granted without objection.

Ted Cox, Jr. and April contend that Lenzie must be removed because the

loyalty she feels for and has exhibited towards her mother, Lenor, adversely affects

her administration of the Trust for the benefit of all beneficiaries. Specifically, Ted

Cox, Jr. and April assert that Lenor’s beneficiary claims have received precedence

over their own and those of their children.

Ted Cox, Jr. and April maintain that Lenzie cannot fulfill the obligation of

undivided loyalty owed to all beneficiaries of the Trust. They point out that in the

succession proceeding, Lenzie accompanied her mother to court every day and

testified on her behalf. In Succession of Cox, 388 So.3d 523, a panel of this court

found that the only evidence in support of Lenor’s contentions came from her

daughter, Lenzie. She testified that she attended most of Ted Cox, Sr.’s doctor’s

appointments and that he was not experiencing mental problems at the time of the

amendment. This directly contradicted the medical records. The trial court found

the testimony of Lenzie Dupuis not credible, and the appellate court affirmed. Ted

and April contend Lenzie gave this compromised testimony in order to help her

mother gain control over the Trust assets that were at issue in the succession

proceedings.

Placed into evidence were numerous checks signed by Lenzie, as trustee, and

made to the order of Lenor. These checks were written in March 2024 and total

$47,765.52. At the same time, Lenzie denied requests for payments from the other

beneficiaries for various reasons. One reason given was that there were not

sufficient funds to satisfy the other beneficiaries’ requests.

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Ted and April call attention to the fact that Lenzie retained the same attorney

her mother hired to file a motion for new trial in the succession proceeding and to

appeal the trial court’s decision. This representation overlapped, as the appeal

opinion was not rendered until May 2024. During this time, Lenzie was advised to

refuse requests for payments by the other beneficiaries, in case Lenor was successful

in her appeal. Ted and April argue that, because Lenzie retained the same attorney

as her mother in a case against the other beneficiaries, this is another indication of

her partiality to her mother to the detriment of the other beneficiaries.

After the appeal opinion in the succession proceeding was rendered, Lenzie

did issue payment to the other beneficiaries for some of their requests. A total of

$72,000.00 has been disbursed and split between the nine other beneficiaries. They

have requested $215,000.00.

Lenzie argues that “[a]s a general rule, neither conflict of interest, particularly

where the settlor knew of the potential conflict at the time the trust was created and

the trustee named, nor hostility, of itself, constitutes sufficient cause for the removal

of a trustee.” City Bank & Trust Co. v. Hawthorne, 551 So.2d 658, 662 (La.App. 3

Cir. 1989). While this is true, Ted and April have alleged facts that the hostility

interfered with the administration of the Trust. Martin, 663 So.2d 519. The trial

court found that Lenzie’s loyalty to Lenor did interfere with her administration of

the Trust and removed Lenzie as trustee. Based on the body of evidence discussed

above, we cannot say that the trial court manifestly erred in that finding.

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DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Defendant Lenzie Dupuis.

AFFIRMED.

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