United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30660

____________

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, cotrustees 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, 

United States Court of Appeals

Fifth Circuit

FILED

September 4, 2024

Lyle W. Cayce

Clerk

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2

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 CoTrustees’ 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. 

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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. 

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The Beneficiaries timely appealed, raising two primary issues. First, 

the Beneficiaries contend that the district court erred in granting the CoTrustees’ 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 CoTrustees’ motion in limine because it was unduly harsh and a “litigationending 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 CoTrustees’ motion, treating it as a motion to exclude.

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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).

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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 CoTrustees 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. 

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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 CoTrustees 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 

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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, 

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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. 

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