NEWBURGER v. STEVENS (2026)

The plaintiff, the beneficiary of a trust created for him by his stepfather, appeals the trial court's dismissal of his petition for declaratory judgment and the grant of partial summary judgment in favor of the trust protector named in the trust. For the following reasons, we affirm the trial court's judgment.

FACTS

In 2004, Robert Andrew Wolf, Jr. and his wife, Clara Wise Wolf, executed identical wills that divided their property equally among their children. Mr. Wolf had two adult children, Robert III (Drew) and Jennifer, and Mrs. Wolf had one son, Gerald Wise (Jerry). In his Will, Mr. Wolf established the Robert Andrew Wolf, Jr. Testamentary Trust for Jerry and designated Drew as the Trust Protector. That same year, the Wolfs formed the Wolf Family LLC which owns commercial property. Mr. and Mrs. Wolf owned equal shares of the LLC, and their children each owned nominal shares of the LLC. In 2016, shortly before Mr. Wolf died, Mrs. Wolf amended her will to leave all of her property to Jerry. Mrs. Wolf died in 2024. Prior to his death, Mr. Wolf managed the LLC, and after his death, Mrs. Wolf managed the LLC until her death.

Mrs. Wolf's death necessitated that the Trustee of Jerry's Trust, Argent Trust Company (hereinafter referred to as “Argent”), select a new manager to oversee the LLC. Jerry nominated himself to serve as the new LLC manager, and Drew, as the Trust Protector, nominated Scotty Stevens, Jennifer's husband for the position. Argent selected Mr. Stevens as the new LLC manager. Thereafter, Jerry filed a petition for declaratory judgment to have the trial court determine the extent of Drew's authority as the Trust Protector and to reverse the Trustee's manager selection. He also challenged the authority assigned to the Trust Protector with regard to directing the Trustee on how to perform its duties as stated in the Trust.¹

Drew filed exceptions of no cause of action asserting Jerry's claims against him personally and as the Trust Protector were not justiciable controversies or were moot. After a hearing on Drew's exceptions, the trial court sustained the exceptions but granted Jerry thirty days to amend his petition for declaratory judgment. Jerry then filed a restated petition for declaratory judgment or, in the alternative, request for court instruction and interpretation. The amended petition essentially restated the allegations set forth in Jerry's original petition for declaratory judgment but also sought guidance on the interplay of a trust protector's authority and a trustee's fiduciary duties to the trust beneficiaries. Jerry also sought instruction regarding if and how a trust protector can be removed from that position and whether a trust protector is a co-trustee. Drew filed a renewed exception of no cause of action. The trial court sustained the exception with regard to all but two of Jerry's claims. These two claims question the Trust Protector's authority to modify the identity of the contingent beneficiaries named in the Trust and the termination date of the Trust, finding each of those claims involved a justiciable controversy.

Drew filed a motion for summary judgment seeking a determination of whether his position as Trust Protector authorized him to modify the Trust to change the contingent beneficiaries and to require the Trustee to obtain his consent before terminating the Trust. The trial court granted summary judgment in favor of Drew, and Jerry filed this appeal.

ASSIGNMENTS OF ERROR

Jerry assigns the following errors with the trial court's judgment:

1) The trial court erred in sustaining the exception of no cause of action on the basis that no justiciable controversy existed, because the trust protector's actual exercise of claimed powers created an actual, concrete dispute, and because La.R.S. 9:2233 does not require a justiciable controversy before a beneficiary may seek court instructions.

2) The trial court erred in granting summary judgment on the contingent beneficiary issue because (1) the Settlor's intent is ambiguous on the face of the Trust and presents a genuine issue of material fact requiring trial, and (2) extrinsic evidence is admissible to resolve that ambiguity.

3) The trial court erred in ruling that the “descendants” limitation in La.R.S. 9:2031 applies only to vested beneficiaries and not to contingent ones, contrary to the plain text of the statute.

4) The trial court erred in concluding that Section 6(B)(iii) of the Trust authorizes the trust protector to add or remove contingent beneficiaries without restriction, because if La.R.S. 9:2031 does not govern contingent beneficiaries, then no provision of the Louisiana Trust Code authorizes delegation of a power to modify contingent beneficiary provisions, and Section 6(B)(iii) must be severed as contrary to La.R.S. 9:2025.

5) The trial court erred in ruling that the trust protector may override the trustee's independent power of early termination and may extend the trust's termination date[ ] because Section 6(B)(iv) authorizes modification of the termination date only, not nullification of the trustee's fiduciary authority to terminate early, and because the Lousiana Trust Code does not authorize delegation of a power to extend a trust's duration.

DISCUSSION

Procedural History

When this appeal was lodged, a question arose as to whether it was lodged timely and whether this court had jurisdiction to consider it.

On July 25, 2024, the trial court granted a judgment on exceptions that asserted lack of justiciable controversy, no cause of action, no right of action, and mootness. The trial court granted Jerry thirty days to amend his petition which he did. Thereafter, in a judgment dated December 30, 2024, the trial court sustained Drew's renewed exception of no justiciable controversy but denied his exception of no right of action regarding the trust protector's authority to instruct the trustee and require his consent as to terminating the trust and modifying contingent beneficiaries. Then, on September 2, 2025, the trial court issued judgment on a motion for summary judgment filed by Jerry that held the trust protector had the right to modify the contingent beneficiaries named in the Trust but denied the trust protector's claim that he had the authority to modify the trustee's discretionary authority as provided in the Trust. Lastly, on November 20, 2025, the trial court issued a judgment sustaining Jerry's exception of no right of action for attorney fees sought from him by Drew. That judgment further reiterated that all other relief sought by Jerry and Drew were dismissed with prejudice. It specifically states:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all causes of action for injunctive and declaratory relief asserted by Gerald Newburger, Jr., in this matter have been adjudicated as stated in the (1) Judgment on Renewed Exception of No Cause of Action rendered on December 30, 2024, which sustained, in part, an exception of no cause of action filed on behalf of Robert Wolf, III; and (2) Judgment Rendered on Motion for Summary Judgment dated September 2, 2025, which granted in part and denied in part Robert Wolf, III's motion for summary judgment as to the remaining causes of action asserted by Gerald Newburger, Jr.; and that any other cause of action asserted by Gerald Newburger, Jr. in Plaintiff's 1st Amended and Restated Petition for Declaratory Judgment or in the Alternative Request for Court Instruction and Interpretation against Robert Wolf, III, and Argent Trust Company are dismissed with prejudice, thereby disposing of all causes of action before the [Court].

Jerry filed his notice of devolutive appeal on January 7, 2026, and the trial court signed the order granting the appeal on January 9, 2026. The order states, in pertinent part:

IT IS ORDERED, that a Devolutive Appeal be and is hereby GRANTED to the Plaintiff, GERALD NEWBURGER, JR., from the Judgment, signed on September 2, 2025, and from which the Notice and Certificate of Signing of Judgment was mailed on September 4, 2025, and from all other Judgments rendered in the above-captioned matter including, but not limited to the Judgment on Exceptions signed on July 25, 2024, Judgment on Renewed Exception of No Cause of Action signed on December 30, 2024, without the necessity of plaintiff furnishing an appeal bond as provided by La. C.C.P. art. 2124 (A), and that the appeal be returnable to the Third Circuit Court of Appeal in accordance with law.

As provided in La.Civ.Code art. 2087, Jerry had 60 days to file a devolutive appeal after the delay for applying for a new trial or judgment notwithstanding the verdict lapsed. His notice for devolutive appeal was filed timely. Accordingly, the appeal was reviewed.

Declaratory Judgment

Jerry sought a declaratory judgment regarding Drew's authority as Trust Protector and the legality of his modification of the contingent beneficiaries. He contends the trial court erred in concluding that his petition does not present a justiciable controversy. He further argues La.R.S. 9:2233(A) does not require that a justiciable controversy exists before a beneficiary can seek court instruction and that Drew's actions as Trust Protector “created an actual, concrete dispute.”

In Ramey v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118 (case citations omitted), the supreme court discussed the peremptory exception of no cause of action, explaining:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.

The supreme court has defined justiciable controversy in the context of declaratory relief, stating:

A “justiciable controversy” connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of a conclusive character. Further, the party seeking the declaratory judgment should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of the declaratory judgment.

Am. Waste & Pollution Control Co. v. St. Martin Par. Police Jury, 627 So.2d 158, 162 (La. 1993) (quoting Abbott v. Parker, 259 La. 279, 249 So.2d 908, 918 (1971) (emphasis added)).

Appellate courts review a trial court's decision to deny a declaratory judgment under the abuse of discretion standard of review. Mai v. Floyd, 05-2301 (La.App. 1 Cir. 12/6/06), 951 So.2d 244, writ denied, 07-581 (La. 5/4/07), 956 So.2d 619. However, as to the judgment itself, questions of law are reviewed de novo, and questions of fact are reviewed under the manifest-error standard of review. Westlawn Cemeteries, L.L.C. v. Louisiana Cemetery Bd., 21-1414 (La. 3/25/22), 339 So.3d 548.

Jerry contends a justiciable controversy arose when Drew amended the Trust to rename the contingent beneficiaries. He argues La.R.S. 9:2233(A) supports his argument, noting it does not require a justiciable controversy and expressly authorizes a beneficiary to apply to the court for instructions regarding the Trust, the interpretation of it, and its administration.

Subsection La.R.S. 9:2031(A) provides, in pertinent part: “A trust instrument may authorize a person ․ to add or remove beneficiaries, or modify their rights, if all of the affected beneficiaries are descendants of the person given the power to modify.” As argued by Jerry, Subsection 9:2233(A) authorizes a beneficiary to seek instructions regarding the interpretation of or the administration of the trust. He contends his interest as the sole income and principal beneficiary of the Trust is a legally protectable stake in the outcome of this issue. Importantly, under the terms of the Trust, Jerry's stated interest as to this issue is not that the Trust Protector or Trustee has done or intends to do anything to affect his interests as beneficiary of the Trust. Rather, his interest is how the interests of the contingent beneficiaries may be affected. Accordingly, Jerry has not established that any of his rights will be affected by a change in the contingent beneficiaries.

Moreover, while Section 9:2233(A) does authorize a beneficiary to seek guidance regarding a trust instrument, it does not state that it is an exception to the requirement that a justiciable controversy must exist for a declaratory judgment to be granted. Therefore, the trial court did not err in denying his petition for declaratory judgment on this issue.

Summary Judgment

Drew filed a motion for summary judgment to clarify his authority as Trust Protector to modify the contingent beneficiary provision of the Trust and to require the Trustee to obtain his consent before terminating the Trust.² After reviewing the Trust provision, the trial court determined the Will evidenced the Settlor's intent on these issues and granted Drew's motion for summary judgment. Jerry assigns error with the trial court's grant of summary judgment, arguing Mr. Wolf's intent regarding Drew's authority as Trust Protector is ambiguous on the face of the Will.

When interpreting a trust, the settlor's intention controls. La.Civ.Code Art. 1611(A); In re Marshall Legacy Found., 23-522 (La.App. 3 Cir. 6/12/24), 389 So.3d 1005, writ denied, 24-895 (La. 12/27/24), 397 So.3d 1216. If the language of the trust is clear, intent is to be determined from the trust document and applied to the facts at issue, unless the settlor's intent is contrary to the law or public policy. Id. Parol or extrinsic evidence can only be considered in construing the trust instrument if the instrument is ambiguous or uncertain and then only to explain, not contradict the instrument. Succession of Theriot, 16-639, (La.App. 3 Cir. 5/17/17), 221 So.3d 862, writs denied, 17-919, 17-1035 (La. 9/29/17), 227 So.3d 292, 295.

Intent is a finding of fact. In re Succession of Wilkerson, 44,213 (La.App. 2 Cir. 4/8/09), 9 So.3d 1058, writs denied, 09-975, 09-994 (La. 6/19/09), 10 So.3d 741, 744. A trial court's finding of fact cannot be disregarded unless it is manifestly erroneous or is clearly wrong. Id. A reviewing court is not to consider whether the trial court's conclusion was right or wrong, but whether the conclusion was reasonable. Id. If there are two permissible views of the evidence, the fact finder's choice of one or the other cannot be manifestly erroneous or clearly wrong. Id.

Section 6(B)(iii) of the Trust provides: “The Trust Protector may, with respect to Jerry's Trust, modify or amend ․ the identity of a contingent beneficiary.” Jerry asserts this provision conflicts with the requirement of La.R.S. 9:2031(A)³ that the rights of beneficiaries can only be modified if the beneficiaries are descendants of Drew. The contingent beneficiaries named in the Trust are not descendants of Drew. Drew counters that La.R.S. 9:2031(A) does not apply to contingent beneficiaries. The trial court determined that La.R.S. 9:2031 does not limit Drew's ability to add, remove, or modify the rights of the contingent beneficiaries named in the will because they are not his descendants.

The Trust Code defines beneficiary as “a person for whose benefit the trust is created.” La.R.S. 9:1801. That definition does not include or reference contingent beneficiary, and contingent beneficiary is not referenced in La.R.S. 9:2031(A) or its comments. The Trust Code does not define contingent beneficiary.

Our supreme court reviewed the meaning of “contingent” in State ex rel. Bach v. Recorder of Conv., 33 La.Ann. 223, 225 (1881) (emphasis added), stating:

The definitions of the word contingent by standard lexicographers and by law-writers are: 1st. Happening by chance; not determined by any certain rule; not definite or fixed; uncertain; accidental; casual. 2d. (Law). Dependent upon an uncertainty, as a contingent legacy. (Blackstone).

Mr. Wolf designated a beneficiary and contingent beneficiaries and authorized the Trust Protector to appoint a contingent beneficiary. Nothing in this provision or the Trust as a whole indicates Mr. Wolf intended anything other than what it states. Based on the Trust Code's lack of distinction between beneficiary and contingent beneficiary, we find no error with the trial court's conclusion that Mr. Wolf intended to have Drew exercise the authority granted to the Trust Protector in the Will, including changing the contingent beneficiaries.

Jerry next argues that if La.R.S. 9:2031 does not govern contingent beneficiaries, no other provision of the Trust Code authorizes the delegation of the power to modify contingent beneficiary provision and, therefore, that provision must be severed from the Trust. The delegation of authority to modify administrative provisions of a Trust is addressed in La.R.S. 9:2025 which states: “A settlor may delegate to another person the right to ․ modify the administrative provisions of a trust.”

This court held in Succession of Voorhies v. Voorhies, 03-163, p. 3 (La.App. 3 Cir. 7/16/03), 853 So.2d 655, 657, “Louisiana law favors liberal construction and interpretation of trusts.” See also La.R.S. 9:1724 which provides:

The provisions of this Code shall be accorded a liberal construction in favor of freedom of disposition. Whenever this Code is silent, resort shall be had to the Civil Code or other laws, but neither the Civil Code nor any other law shall be invoked to defeat a disposition sanctioned expressly or impliedly by this Code.

With regard to Jerry's argument on this issue, La.R.S. 9:1753 goes further, stating, in part:

A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if the trust instrument is susceptible of such an interpretation.

Mr. Wolf's intent could not be any clearer: the Trust Protector is authorized to modify the contingent beneficiaries to replace those initially named by him. The trial court did not err in granting Drew summary judgment on this issue.

Termination Date

In his last assignment of error, Jerry argues the trial court's ruling regarding Drew's amendment of the Trust provision governing the termination of the Trust is erroneous and should be reversed.

Section 2(B). of the Trust states “Jerry's Trust shall terminate upon his death.” Nonetheless, Section 5(A). of the Trust grants the Trustee “the discretion to earlier terminate the Trust” under certain conditions, including 1) the value of the principal and expense of managing the trust and 2) whether it would be in the best interest of Jerry in light of his “demonstrated ability ․ to handle money and property wisely” among other factors the Trustee deems relevant. Furthermore, Subsection 6(B)(iv) of the Trust provides “The Trust Protector may ․ modify or amend: ․ [t]he terms of Jerry's Trust with respect to ․ (ii) the termination date by extending or shortening the termination date[.]” The Trust also authorizes the Trust Protector to modify or amend “[t]he financial powers of the Trustee.”

Drew amended the Trust to modify the Trustee's discretion to terminate the Trust by requiring the Trustee to obtain the Trust Protector's “permission and written concurrence via authentic act prior to any termination” of the Trust.

As discussed above, La.R.S. 9:2025 allows a settlor to delegate to another person “the right to terminate a trust, or to modify the administrative provisions of a trust.” Jerry argues this provision does not authorize the extension of a trust's duration. He contends Drew's amendment conflicts with La.R.S. 9:2025 because it allows the Trust Protector to override a discretionary decision by the Trustee that an earlier termination is warranted under the terms of the Trust.

The trial court determined the amendment was appropriate to the extent that it authorizes the Trust Protector to “override” a decision by the Trustee on early termination of the Trust but further concluded the Trust Protector “does not have authority to modify the Trustee's discretionary decision-making powers.” Therefore, the trial court denied Drew's motion for summary judgment with regard to this amendment.

Jerry urges:

The trial court's ruling that the trust protector may both override the trustee's early termination authority and extend the trust's termination date conflates two distinct powers, reads Section (B)(iv) far more broadly than its text supports, and gives the trust protector authority that neither the Trust nor the Louisiana Trust Code sanction.

In re Eleanor Pierce (Marshall) Stevens Living Trust, 14-697, pp. 14-15 (La.App. 3 Cir. 2/18/15), 159 So.3d 1101, 1111, addressed the role of trust protectors in relation to trustees, explaining:

By designating a trust protector, the settlor's interest in managing the assets for the benefit of the beneficiaries is better protected, as the trust protector is someone whom the settlor has selected “to represent the settlor's interests in making specified trust decisions that the settlor will be unable to make.” Sterk, Trust Protectors, Agency Costs, and Fiduciary Duty, 27 Cardozo L.Rev. 2761, 2777 (2006). It has even been said that the trust protector is “the living embodiment of the dead settlor,” that is, “a person whose primary function is to exercise judgment on behalf of the trust settlor.” By appointing a trust protector, the beneficiaries are no longer saddled with the responsibility of monitoring the trustee for a breach of fiduciary duty and costs of litigation may be avoided as the settlor “could even give the protector power to remove the trustee without judicial approval.”

The office of trust protector is recognized, to some extent, in Louisiana. The Louisiana Civil Law Treatise on Trusts states: “A trust protector is usually a person to whom the settlor gives the power to modify or terminate the trust or to remove and replace a trustee.” 11 La.Civ.L. Treatise, Trusts § 5:11 (2d ed.) (emphasis added). Moreover, “[r]ecent amendments to the Trust Code ․ allow the settlor in Louisiana to nominate ‘trust protectors.’ ” 11 La.Civ.L. Treatise, Trusts, § 5:11 (2d ed.). As further explained in the Louisiana Civil Law Treatise: “The settlor might reserve the power to remove the trustee or grant the authority to another trustee or a beneficiary or an outsider (for example, settlor's brother).” 11 La.Civ.L. Treatise, Trusts § 16:5 (2d ed.)(emphasis added). The “outsider” may be the person appointed to the office of Trust Protector.

As explained in Stevens, Mr. Wolf's grant of authority to Drew as Trust Protector to terminate the Trust and remove a trustee without judicial approval is contemplated by Louisiana law. After considering the Trust's directives regarding the Trust Protector's authority with respect to the Trust's termination, we cannot say the trial court erred in finding that Drew as Trust Protector is authorized to require the Trustee to obtain his consent to terminate the Trust prior to Jerry's death.

CONCLUSION

For these reasons, the trial court's judgment is affirmed. All costs are assessed to Gerald Newburger, Jr.

AFFIRMED.

FOOTNOTES

1.   Jerry also asked the trial court to nullify Argent's LLC manager selection, asserting that Argent did as it was instructed by Drew and did not select Mr. Stevens based on his qualifications. Prior to trial on this issue, Jerry withdrew his objection to Mr. Stevens serving as manager.

2.   The Will outlines the Trust Protector's authority in Section 6(B) to allow modification or amendment of (i) the trust administrative provisions, (ii) the financial powers of the Trustee, (iii) the identity of a contingent beneficiary, and (iv) the terms of the Trust, with respect to the distribution of income and principal, and the termination date of the Trust.

3.   Louisiana Revised Statutes 9:2031(A) states, in part:A trust instrument may authorize a person who is in being on the date of the creation of the trust to modify the provisions of the trust instrument in order to add or remove beneficiaries, or modify their rights if all of the affected beneficiaries are descendants of the person given the power to modify.

PICKETT, Judge.