Opinion
No. 97-C-1042
September 26, 1997 Rehearing Denied November 7, 1997
IN RE: Welsh, Kevin A. and Welsh, Cliffore J. Jr.; Other(s); Applying for Rehearing of this Court's action dated June 13, 1997; Parish of Jefferson 24th Judicial District Court Div. "G" Number 441-158; to the Court of Appeal, Fifth Circuit, Number 96-CA-0770.
Rehearing granted. See per curiam.
JPV
PFC
WFM
BJJ
CDT
KNOLL, J., — not on panel.
LEMMON, J., AND KIMBALL, J., — would grant and docket.
ON APPLICATION FOR REHEARING TO THE SUPREME COURT, STATE OF LOUISIANA
Rehearing granted. Upon further consideration, we now determine our action of June 13, 1997 was in error.
Although the trial court stated its removal of Mr. Welsh was not based on any determination of fault, it is apparent that Mr. Welsh breached his duty as trustee as noted by the trial court by failing to timely file required accountings and attempting to dispose of trust assets. Such actions by Mr. Welsh are sufficient cause for his removal under Louisiana Revised Statutes 9:1789. As we stated in Succession of Durham, 408 So.2d 888, 899 (La. 1981):
. . . [R]eading the two articles together, it is clear that a succession representative cannot be removed because of a mere conflict of interest, but rather it must be shown that he has mismanaged the estate or breached one or more of his required duties." (emphasis added)
We recall our per curiam of June 13, 1997 and deny Mr. Welsh's application for writs, leaving in place the judgment of the Fifth Circuit Court of Appeal which affirmed the trial court judgment removing him as trustee.