APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 753-803, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JANA MARIE LINDNER MCCAFFERY
Ronald W. Morrison, Jr.
COUNSEL FOR DEFENDANT/APPELLEE, JOE ANN YOUNG LINDNER Stephen
composed of Judges Fredericka Homberg Wicker, Robert A.
Chaisson, and Stephen J. Windhorst.
STEPHEN J. WINDHORST JUDGE.
Jana Marie Lindner McCaffery, seeks review of the trial
court's January 9, 2018 judgment, in which the trial
court ordered appellee, Joe Ann Young Lindner, to return
$897, 079.78 to the Lazy J-7 Trust, subject to a credit for
those monies returned prior to judgment. For the following
reasons, we affirm the trial court's judgment.
and Procedural History
matter involves the disputed management of a family trust
fund established by John Lindner, Jr. ("Mr.
Lindner"), Mrs. McCaffery's father and Mrs.
Linder's husband. Mr. Lindner established the Lazy J-7
Trust on November 18, 1992 and served as the sole trustee
until his death on March 24, 2001. Mrs. Linder was named as
the sole income beneficiary, and Mrs. McCaffery and John E.
Lindner, III were named as the principal beneficiaries of the
trust with Mr. Lindner, III's interest set at Fifty
Thousand Dollars, $50, 000 and Mrs. McCaffery's interest
for the remainder. Upon Mr. Lindner's death, Mrs. Lindner
became the successor trustee and remains the trustee to date.
Lazy J-7 Trust is a so-called "spendthrift" trust,
which allows for invasion of principle only under limited
circumstances. The trust was funded upon its creation with
three pieces of immovable property: (1) a ranch in Hancock
County, Mississippi owned by Mr. Lindner individually; (2) a
property on Gentilly Blvd. in New Orleans; and (3) a property
on Chateau Blvd. in Metairie. The Gentilly and Metairie
properties were found to be marital property when they were
donated. All three funding properties were sold during Mr.
Lindner's tenure as trustee: (1) the ranch in 1998 for
$2.4 million; (2) the Gentilly property in 1994 for $140,
000; and (3) the Chateau property in 1999 for $310, 000.
Accordingly, the principal value of the trust at the time
that Mrs. Lindner became trustee should have been not less
than $2.85 million.
September, 23, 2015, appellant, Mrs. McCaffery, filed a
petition for trustee's accounting against her mother,
Mrs. Lindner, of the inter vivos irrevocable Lazy J-7 Trust.
Mrs. McCaffery received Mrs. Lindner's accounting in
October, 2015 and learned that the trust's actual value
at the time Mrs. Lindner became trustee was approximately
$1.36 million. The accounting revealed that Mrs. Lindner
distributed to herself almost $900, 000 in trust principal
during her tenure as trustee. After submission of the
accounting, Mrs. McCaffery amended her petition to include
demands for return of all monies from the sales of the three
funding properties, and for damages for mismanagement of the
trust by Mr. and Mrs. Lindner. It is undisputed that both Mr.
and Mrs. Lindner invaded trust principle in violation of the
terms of the trust during their respective terms as trustee.
Mrs. McCaffery also sought removal of Mrs. Lindner as trustee
and her appointment as successor trustee.
14, 2016, the trial court held an evidentiary hearing on Mrs.
McCaffery's motion to remove Mrs. Lindner as trustee. At
this hearing, Mrs. Lindner testified that she took over as
trustee in 2001 and that there was approximately one million
three hundred thousand dollars ($1, 300, 000) in the trust.
She also testified that she was in the meeting with legal
counsel when the trust was created and that counsel told her
and her husband that the money could be treated as their own
property. The trial court declined to remove Mrs. Lindner as
the trustee of the Lazy J-7 Trust, finding that there was no
evidence of bad faith and thus no basis to support removal of
trial, Mrs. Lindner again testified that she and Mr. Lindner
relied on the advice of counsel in treating the trust assets
as their own. Mrs. Lindner also testified that, since the
filing of this lawsuit, the terms of the trust have been
explained to her and she has replaced an undisputed portion
of the removed principal. Mrs. Lindner argued at trial that
she should not be obligated to return any portion of invaded
principle which constitutes her share of community property.
She also asserted that she should not be held liable for any
violation of the trust which occurred during Mr.
Lindner's tenure as trustee.
trial, the trial court considered the following issues: (1)
whether Mrs. Lindner had a claim to a community interest in
the trust's funding properties; (2) whether Mrs. Lindner
should replace principal assets removed from the trust during
Mr. Lindner's term as trustee; and (3) whether Mrs.
Lindner should replace principal assets removed from the
trust during her own term as trustee. The trial court ruled
in favor of Mrs. McCaffery and against Mrs. Lindner, and
ordered Ms. Lindner to return $897, 079.78 to the Lazy J-7
Trust, subject to a credit for those monies returned prior to
judgment. After trial on November 27, 2017, the trial court
also (1) ruled that Mrs. Lindner does not have any community
interest claim to the three funding trust properties and that
she is not liable for the breaches committed by the
predecessor trustee; and (2) excluded the expert testimony of
appellant/Mrs. McCaffery's expert, a Louisiana attorney
and board certified estate planning and administration
asserts that the trial court erred (1) in not removing Mrs.
Lindner as trustee of the Lazy J-7 Trust; (2) in not holding
Mrs. Lindner liable for the breaches of trust by her
predecessor, Mr. Lindner; and (3) in excluding the expert
testimony and report of Carole Cukell Neff, a proposed expert
in the usual and customary standards of a trustee. Appellee
answered the appeal, asserting the trial court erred in (1)
not classifying the Mississippi ranch and contiguous acreage
as community ...