Case: 22-30660 Document: 67-1 Page: 1 Date Filed: 09/04/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 4, 2024
No. 22-30660 Lyle W. Cayce
____________ Clerk
Lillian L. King, Income & Principal Beneficiary & Co-Trustee of the Voris
King Trust; Frances E. Hansen, Income & Principal Beneficiary of the
Voris King Trust; Mary Nell Sinai, Income & Principal Beneficiary of
The Voris King Trust,
Plaintiffs—Appellants,
versus
William V. King, Individually & as Co-Trustee of the Voris King Trust;
Tobe Ayres Leonard, Co-Trustee of the Voris King Trust; J.
Michael Veron, Co-Trustee of the Voris King Trust; William Voris
King, Executor of the Estate of Alvin Bardine King,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:19-CV-1677
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Appellants, beneficiaries of a family trust, sued the appellees, co-trustees of the trust, under Louisiana law alleging that the co-trustees
mismanaged the trust and created a second, secret trust to withhold money
from the beneficiaries. The beneficiaries sought a declaratory judgment,
Case: 22-30660 Document: 67-1 Page: 2 Date Filed: 09/04/2024
No. 22-30660
accountings, and damages. After the beneficiaries failed to provide a
calculation of damages as required by Federal Rule of Civil Procedure 26, the
district court granted the co-trustees’ motion in limine excluding all evidence
of damages. 1 The district court then granted the co-trustees’ motion for
summary judgment on all claims because the beneficiaries could not prove
damages and because the beneficiaries were not entitled to a declaratory
judgment or accountings. The beneficiaries timely appealed. Because the
district court did not abuse its discretion in excluding all evidence of
damages, we AFFIRM the summary judgment.
I
In December 1969, Voris King and his wife, Frances T. King,
established the Voris King Trust. Voris named his children—Charles
Stirling King, Virginia King Ayres, William “Bill” King, and Alvin King—as
income beneficiaries of the Trust, and he named his grandchildren as a class
of principal beneficiaries. Voris’s four children and another person from
outside of the King family initially served as co-trustees of the Trust.
When Charles King died in 1992, his income-beneficiary status passed
to his daughters, the appellants here (“Beneficiaries”). One of his daughters,
Lillian King, assumed his role as co-trustee.
In December 2019, the Beneficiaries sued the Co-Trustees of the
Trust in the Western District of Louisiana for claims arising out of the Co-Trustees’ management of the Trust and the successions of their father and
grandfather. In 2021, Beneficiaries filed an amended complaint, alleging that
the Co-Trustees had created a secret trust in 1994 to divert money from the
Trust without the Beneficiaries’ knowledge. The Beneficiaries sought a
_____________________
1
As we explain below, this “motion in limine” is more properly described as a
motion to exclude evidence.
2
Case: 22-30660 Document: 67-1 Page: 3 Date Filed: 09/04/2024
No. 22-30660
declaratory judgment (Count I); an accounting of the Trust, the secret trust,
and the two successions (Count II); and damages under theories of breach of
trust (Count III), breach of fiduciary duties (Count IV), fraud (Count V), and
enrichment without cause (Count VI).
The district court twice granted the Beneficiaries’ unopposed
motions to continue trial and discovery deadlines, and it ultimately set a
discovery deadline in May 2022. After discovery closed, and four months
before trial, the Co-Trustees filed a motion in limine to exclude all evidence
of damages under Federal Rule of Civil Procedure 37, citing the
Beneficiaries’ failure to provide a timely damages calculation. Specifically,
the Co-Trustees sought exclusion of “any evidence of financial damages in
any proceeding in this case, including hearings, motions, [and] response[s] to
motions on trial.” The Co-Trustees also filed a motion for summary
judgment on all claims.
The Beneficiaries opposed the motion in limine and attached to their
response a damages calculation of $36,877,677 in total damages. The
Beneficiaries also opposed the motion for summary judgment.
The district court heard oral argument on both motions on September
2, 2022. The court orally granted the Co-Trustees’ motion in limine and
excluded all evidence of damages. It later granted the motion for summary
judgment, determining that Count I was moot and that no genuine issues of
material fact precluded summary judgment. It also concluded that summary
judgment was proper on Count II because the Beneficiaries had waived the
right to receive formal accountings. Finally, it concluded that summary
judgment was proper on Counts III–VI because the Beneficiaries, in light of
the order excluding evidence of damages, could not prove damages for those
claims and, alternatively, because those claims were time-barred under
Louisiana law.
3
Case: 22-30660 Document: 67-1 Page: 4 Date Filed: 09/04/2024
No. 22-30660
The Beneficiaries timely appealed, raising two primary issues. First,
the Beneficiaries contend that the district court erred in granting the Co-Trustees’ motion in limine to exclude all evidence of damages. Second, they
argue that the district court erred in granting summary judgment.
II
Beneficiaries argue that the district court erred in granting the Co-Trustees’ motion in limine because it was unduly harsh and a “litigation-ending sanction.”
At the outset, we note that the Co-Trustees’ motion appears to be a
motion in limine in name only. Motions in limine are prophylactic motions
intended “to exclude anticipated prejudicial evidence before the evidence is
actually offered” at trial because it runs afoul of applicable rules of evidence.
21 Charles Alan Wright et al., Federal Practice & Procedure § 5037.10 (2d
ed. 2005) (quoting Luce v. United States, 469 U.S. 38, 40 n.2 (1984)). The
Co-Trustees’ motion, by contrast, sought to prohibit the Beneficiaries from
offering damages evidence at the summary judgment stage as a sanction
under Federal Rule of Civil Procedure 37. Accordingly, it is more properly
considered a motion to exclude. See Moore v. CITGO Refin. & Chems. Co.,
L.P.,
735 F.3d 309, 314–15 (5th Cir. 2013).
The distinction is not merely one of semantics, because the grant of a
motion in limine does not preserve error for appeal unless the non-moving
party objects when it attempts to offer the evidence at trial. United States v.
Graves, 5 F.3d 1546, 1551 (5th Cir. 1993). This case did not proceed to trial,
however, and the record does not reflect that the Beneficiaries objected or
attempted to offer damages evidence after the district court entered its order
on the motion. Nevertheless, and out of an abundance of caution, we address
the Beneficiaries’ argument that the district court erred in granting the Co-Trustees’ motion, treating it as a motion to exclude.
4
Case: 22-30660 Document: 67-1 Page: 5 Date Filed: 09/04/2024
No. 22-30660
Federal Rule of Civil Procedure 26(a)(1)(A)(iii) requires that each
party disclose a “computation of each category of damages claimed by the
disclosing party.” If a party fails to do so, “the party is not allowed to use
that information . . . to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1); see also Fed. R. Civ. P. 37(b)(2)(A)(ii) (permitting court to prohibit
disobedient parties from introducing evidence).
The court reviews evidentiary rulings, including decisions to exclude
evidence, for abuse of discretion. Heinsohn v. Carabin & Shaw, P.C., 832 F.3d
224, 233 (5th Cir. 2016). We employ the “CQ factors” to determine whether
a district court abused its discretion when it excludes untimely evidence. See,
e.g., CQ, Inc. v. TXU Mining Co., L.P.,
565 F.3d 268, 279–80 (5th Cir. 2009);
see also Moore, 735 F.3d at 318–19 (referring to the CQ factors as the “Sierra
Club factors”). These factors include: (1) the importance of the evidence;
(2) any prejudice to the opposing party that would result if the evidence were
admitted; (3) the availability of a continuance to cure such prejudice; and
(4) the party’s explanation for its failure to comply with Rule 26 in the first
instance. 2 CQ, Inc.,
565 F.3d at 280.
_____________________
2
The Beneficiaries contend that the district court should have used the “Conner
factors,” which pose a higher bar for exclusion than do the CQ factors, because this is a
“litigation-ending sanction.” The Beneficiaries did not raise this argument in the district
court. Indeed, they agreed in the district court that the CQ factors applied and briefed
those factors before the hearing on the Co-Trustees’ motion. Thus, the Beneficiaries’
argument is forfeited. Rollins v. Home Depot USA, 8 F.4th 393, 397–98 (5th Cir. 2021)
(“We do not ordinarily consider issues that are forfeited because they are raised for the
first time on appeal.”). Even if it were properly preserved, this argument is at odds with
our precedent. We have routinely reviewed orders excluding damages evidence using the
CQ factors when the exclusion of evidence leads to the dismissal of claims. See, e.g., Moore,
735 F.3d at 319; Geiserman v. MacDonald,
893 F.2d 787, 790–92 (5th Cir. 1990).
5
Case: 22-30660 Document: 67-1 Page: 6 Date Filed: 09/04/2024
No. 22-30660
Under the first factor, the district court found that the damages
evidence was important to the Beneficiaries’ claims, an assessment with
which both parties agree. This factor weighs in favor of finding an abuse of
discretion. See Betzel v. State Farm Lloyds, 480 F.3d 704, 707 (5th Cir. 2007).
We acknowledge, however, that the importance of excluded evidence
“cannot singularly override the enforcement of local rules and scheduling
orders.”
Id. (quoting Barrett v. A. Richfield Co.,
95 F.3d 375, 381 (5th Cir.
1996)).
Under the second factor, the district court recognized that the Co-Trustees would be unable to rebut the approximately $37 million calculation
because discovery deadlines had passed. For example, there would be “a lot
of prejudice to [Co-Trustees]” in allowing evidence of damages because Bill
King couldn’t testify or rebut the evidence due to medical reasons. This
finding accords with Fifth Circuit caselaw, which often views late
submissions like this one as giving moving parties “little opportunity to
examine” the late evidence. See, e.g., In re Complaint of C.F. Bean L.L.C., 841
F.3d 365, 373 (5th Cir. 2016). This factor weighs in favor of upholding the
sanction. See
id.
Under the third factor, we have explained that a “continuance is the
‘preferred means of dealing with a party’s attempt to [offer evidence] out of
time.’” Id. at 374 (citation omitted). Nevertheless, “a continuance does not,
in and of itself, ‘deter future dilatory behavior, nor serve to enforce local rules
or court imposed scheduling orders.’” Barrett,
95 F.3d at 381 (quoting
Geiserman v. MacDonald,
893 F.2d 787, 792 (5th Cir. 1990)). Here, the
district court had already twice continued trial and discovery deadlines at the
request of the Beneficiaries. And the Beneficiaries failed to move for a
continuance before the May 2022 discovery deadline. This factor weighs in
favor of upholding the sanction. See
id.
6
Case: 22-30660 Document: 67-1 Page: 7 Date Filed: 09/04/2024
No. 22-30660
Under the fourth factor, the district court found that the
Beneficiaries’ explanation for its delay was “no explanation” at all. We
agree. The Beneficiaries had two-and-a-half years to compute damages, but
failed to do so until two months after discovery closed, and one month after
the Co-Trustees filed their motion in limine. Even now, the Beneficiaries
only vaguely assert that they can offer lay testimony as to damages, but they
cite no record evidence to substantiate their $37 million request. Although
the Beneficiaries lament the Co-Trustees’ “refusal” to provide some
documents to them, the Beneficiaries have not identified any outstanding
discovery requests or appealed any of the district court’s discovery rulings.
Indeed, the Beneficiaries’ lone motion to compel was filed on the same day
that discovery closed in May 2022, and the Beneficiaries later withdrew the
motion because the Co-Trustees “produced the requested item.” If the Co-Trustees failed to overturn discovery as the Beneficiaries claim, the
Beneficiaries should have litigated these disputes in the district court.
Having considered these factors, we conclude that the district court
did not abuse its discretion in granting the Co-Trustees’ motion to exclude
evidence of damages.
III
The Beneficiaries also argue that the district court erred in granting
the Co-Trustees’ motion for summary judgment.
“This court reviews the grant of summary judgment de novo.”
Discover Prop. & Cas. Ins. Co. v. Blue Bell Creameries USA, Inc., 73 F.4th 322,
327 (5th Cir. 2023) (citation omitted). “Summary judgment is proper if the
movant shows that there is no genuine dispute of material fact and that the
movant is entitled to judgment as a matter of law.”
Id. (citation omitted).
“There can be no genuine dispute as to a material fact where a party fails ‘to
make a showing sufficient to establish the existence of an element essential
7
Case: 22-30660 Document: 67-1 Page: 8 Date Filed: 09/04/2024
No. 22-30660
to that party’s case, and on which that party will bear the burden of proof at
trial.’” Guillot ex rel. T.A.G. v. Russell, 59 F.4th 743, 750 (5th Cir. 2023)
(quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)); see also 10A
Charles Alan Wright et al., Federal Practice & Procedure § 2727.1 (4th ed.
2024) (explaining that a party moving for summary judgment carries its
burden if it demonstrates that the non-moving party, who will bear the
burden of persuasion at trial, lacks evidence sufficient “to establish an
essential element of its claim”).
Both parties acknowledge that evidence of damages is essential to the
Beneficiaries’ damages claims, Counts III–VI. Indeed, the Beneficiaries
concede that it is “not in dispute” that, without evidence of damages, their
damages claims should be dismissed. Because the district court did not abuse
its discretion in excluding damages evidence and because the Beneficiaries
are thus unable to prove an essential element of their claims, the district court
did not err in granting summary judgment on Counts III–VI. See Barrett, 95
F.3d at 383 (concluding that district court did not abuse its discretion in
excluding expert testimony and subsequently affirming grant of summary
judgment because plaintiffs could not prove essential element of their
claims).
Given the foregoing, we also affirm the dismissal of the Beneficiaries’
request for a declaratory judgment under Count I. 3 The Beneficiaries’
_____________________
3
The sole remaining count is Count II, the Beneficiaries’ request for accountings.
The district court granted summary judgment on Count II because it found that the
Beneficiaries signed “succession waiver” forms, which waived the right to any formal
accounting for the successions. Although the Beneficiaries mention this ruling in their
“summary of the argument,” they fail to adequately brief this issue elsewhere. Thus, it is
forfeited. Rollins, 8 F.4th at 397. At any rate, the plain language from the “four corners”
of the succession waivers clearly states that each Beneficiary waives “any requirement for
formal accounting” regarding the successions. See delaVergne v. delaVergne,
514 So. 2d 186,
8
Case: 22-30660 Document: 67-1 Page: 9 Date Filed: 09/04/2024
No. 22-30660
requested declaratory judgment is remedial in nature, and absent an
underlying claim for recovery, it should be dismissed. See Sid Richardson
Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 752 n.3 (5th Cir.
1996); Stallings v. CitiMortgage, Inc.,
611 F. App’x 215, 217–18 (5th Cir. 2015)
(“When the other claims have been dismissed, it is appropriate also to
dismiss any declaratory-judgment request.”).
…
Because the district court did not abuse its discretion in granting the
Co-Trustees’ motion to exclude, the Beneficiaries are unable to prove
damages. Thus, the district court did not err in granting summary judgment
on Counts III–VI and the Beneficiaries’ request for a declaratory judgment,
Count I. Accordingly, we AFFIRM.
_____________________
189–90 (La. Ct. App. 1987) (looking to the “four corners” of an agreement that waived
succession accounting). We see no reason to deviate from this plain language.
9
