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In re Interdiction of Gambino

Court of Appeals of Louisiana, Fifth Circuit

December 11, 2019

IN RE: INTERDICTION OF EUNICE LIRETTE GAMBINO
v.
CALVIN. J. GAMBINO, SR. AND BRAD JOSEPH GAMBINO CALVIN J. GAMBINO, JR. AND CYNTHIA A. GAMBINO, AS CURATOR FOR INTERDICTEE EUNICE L. GAMBINO

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 778-797 C/W 784-146, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, CALVIN J. GAMBINO, JR. AND CYNTHIA A. GAMBINO, CURATORS FOR EUNICE L. GAMBINO M. Elizabeth Bowman Christy M. Howley.

          COUNSEL FOR DEFENDANT/APPELLEE, CALVIN J. GAMBINO, SR. Don C. Gardner.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          STEPHEN J. WINDHORST, JUDGE.

         Appellants, Calvin J. Gambino, Jr. and Cynthia A. Gambino, as curators for Eunice L. Gambino, appeal the trial court's January 9, 2019 judgment denying their "Petition to Nullify Act of Donation."[1] For the reasons that follow, we dismiss this appeal for lack of jurisdiction.

         PROCEDURAL HISTORY AND FACTS

         Appellee, Calvin J. Gambino, Sr., and Eunice L. Gambino were married in 1952 and they had ten children: Calvin J. Gambino, Jr., David J. Gambino, Cynthia A. Gambino, Laurie Gambino Kraemer, Joy Gambino Landry, Anthony J. Gambino, Catherine Gambino Rando, Linda Gambino Gunn, and Brad Joseph Gambino. Appellee and Eunice had one child predecease them, Tina M. Gambino.

         On August 16, 2017, appellee executed a Donation Inter Vivos in favor of his son, Brad Joseph Gambino, of 94.67 acres of immovable property in St. Tangipahoa Parish.

         On December 19, 2017, Calvin J. Gambino, Jr. and Cynthia A. Gambino, along with six siblings filed a petition to interdict their mother, Eunice L. Gambino, contending that she had advanced dementia and Alzheimers. At the same time, the siblings also filed a petition to interdict their father, Calvin J. Gambino, Sr. Brad Joseph Gambino did not join in either petition to interdict his parents. The trial court dismissed the petition to interdict their father, Calvin J. Gambino, Sr., but granted the petition to interdict their mother, Eunice L. Gambino, on January 1, 2018.[2] A consent judgment was entered into whereas it was agreed that Calvin J. Gambino, Jr. and Cynthia A. Gambino would serve as curators, and Calvin J. Gambino, Sr. would serve as undercurator of Eunice L. Gambino.

         On May 24, 2018, Calvin J. Gambino, Jr. and Cynthia A. Gambino as curators for Euncie L. Gambino filed a "Petition to Terminate Community Property Regime, and to Annul Donations." In the petition, the curators alleged that the August 16, 2017 donation of immovable property in Tangipahoa Parish executed by Calvin J. Gambino, Sr. to Brad Joseph Gambino was invalid because the immovable property was community, and because Eunice L. Gambino did not have capacity to consent to the donation due to her medical condition and she did not join in the written donation.

         On September 24, 2018, the curators filed a "First Supplemental Petition to Terminate Community Property Regime, and to Annul Donations." Calvin J. Gambino, Sr. and Brad Joseph Gambino were named defendants in the petitions. In the petitions, the curators requested that there be judgment in favor of the curators for Eunice L. Gambino and against the defendants (1) declaring certain items attached to the petitions to be deemed community property; (2) annulling the donation of immovable property dated August 16, 2017 from Calvin J. Gambino, Sr. to Brad Joseph Gambino; (3) annulling all possible donations of cattle or farm equipment owned by Calvin J. Gambino, Sr. and Eunice L. Gambino to Brad Joseph Gambino from 2014 forward; (4) annulling the donation of ½ interest in CD account number ending in #2562 in the amount of $103, 942.00; or in the alternative (5) awarding an amount to adequately compensate Eunice L. Gambino for her one-half interest in the community. The petitions also requested a rule to show cause why the community property regime should not be terminated. On October 18, 2018, Calvin J. Gambino, Sr. filed an answer to the petitions and a reconventional demand against the curators for Eunice L. Gambino. On November 8, 2018, the curators filed an answer and opposition to the reconventional demand.

         On November 14, 2018, the parties appeared before the trial court on the curators claim to annul the August 16, 2017 donation of immovable property by Calvin J. Gambino, Sr. to Brad Joseph Gambino. On January 9, 2019, the trial court rendered judgment stating:

After hearing the arguments of the parties, reviewing all memoranda, the pleadings and facts and considering the law and the evidence, the Court finds: Mr. Gambino, Sr. presented credible testimony, supported by corroborating evidence, sufficient to overcome the presumption of community. The ...

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