Calvin J. Gambino, Jr. and Cynthia A. Gambino, as Curator for Interdictee Eunice L. Gambino Versus Calvin J. Gambino, Sr. and Brad Joseph Gambino ( 2019 )

IN RE: INTERDICTION OF EUNICE LIRETTE NO. 19-CA-152
GAMBINO C/W
19-CA-153
C/W
FIFTH CIRCUIT
CALVIN J. GAMBINO, JR. AND CYNTHIA A.
GAMBINO, AS CURATOR FOR COURT OF APPEAL
INTERDICTEE EUNICE L. GAMBINO
STATE OF LOUISIANA
VERSUS
CALVIN. J. GAMBINO, SR. AND BRAD
JOSEPH 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
December 11, 2019
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Stephen J. Windhorst
APPEAL DISMISSED
SJW
FHW
JGG
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
WINDHORST, J.
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.
1 On October 30, 2019, the parties submitted an amended judgment to this Court.
2 The judgment was signed February 20, 2018.
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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
19-CA-152 C/W 19-CA-153 2
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 immovable property at
issue was Calvin J. Gambino, Sr.’s separate property.
IT IS ORDERED, ADJUDGED AND
DECREED that the Petition to Nullify Act of Donation
filed by Calvin J. Gambino, Jr. and Cynthia A. Gambino,
court appointed curators for Eunice L. Gambino, is
DENIED. (Emphasis included in original.)
On September 23, 2019, this Court found that based on the petitions, answer,
and reconventional demand, the January 9, 2019 judgment was not a final judgment
as it lacked sufficient decretal language. This Court also found that it appeared that
not all issues in the petitions and reconventional demand were disposed of and there
was no designation that the judgment was a final judgment or the trial court’s express
determination that there was no just reason for delay. La. C.C.P. art. 1915 B. We
found that because the trial court had not issued a valid, final judgment in this case,
this Court lacked appellate jurisdiction. Nevertheless, this Court invoked its
supervisory jurisdiction and ordered the trial court to amend, if possible, the January
9, 2019 judgment to invoke this Court’s jurisdiction.
On October 4, 2019, the trial court signed an amended judgment, which
provided:
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 immovable property at
issue was Calvin J. Gambino, Sr.’s separate property.
IT IS ORDERED, ADJUDGED AND DECREED that
the action to annul the August 16, 2017 Act of Donation
wherein Calvin J. Gambino, Sr. donated immovable
19-CA-152 C/W 19-CA-153 3
property located in Tangipahoa Parish to Brad Joseph
Gambino, filed by Calvin J. Gambino, Jr. and Cynthia A.
Gambino, the court appointed curators for Eunice L.
Gambino, within their Petition to Terminate Community
Property Regime, and to Annul Donations and First
Supplemental Petition to Terminate Community Property
Regime, and to Annul Donations is DENIED and
dismissed with prejudice. (Emphasis included in
original.)
DISCUSSION
On appeal, the curators for Eunice L. Gambino seek review of the trial court’s
judgment finding that the immovable property in question was the separate property
of Calvin J. Gambino, Sr. and denying their action to annul the August 16, 2017
donation of immovable property located in Tangipahoa Parish from Calvin J.
Gambino, Sr. to Brad Joseph Gambino.
Before considering the merits in any appeal, appellate courts have the duty to
determine sua sponte whether subject matter jurisdiction exists, even when the
parties do not raise the issue. Input/Output Marine Sys. v. Wilson Greatbatch Techs.,
Inc., 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910. This Court cannot reach
the merits of an appeal unless our jurisdiction has been properly invoked by a valid
final judgment. Id.; Gabriel v. Delta Air Lines, Inc., 16-210 (La. App. 5 Cir.
10/19/16), 202 So.3d 1184, 1185-1186; Morraz-Blandon v. Voiron, 16-112 (La.
App. 5 Cir. 08/25/16), 199 So.3d 1220, 1221.
La. C.C.P. art. 2083 provides in pertinent part:
A. A final judgment is appealable in all causes in which
appeals are given by law . . .
***
C. An interlocutory judgment is appealable only when
expressly provided by law.
La. C.C.P. art. 1915 B, provides:
B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to
one or more but less than all of the claims, demands,
issues, or theories against a party, whether in an original
demand, reconventional demand, cross-claim, third-party
19-CA-152 C/W 19-CA-153 4
claim, or intervention, the judgment shall not constitute a
final judgment unless it is designated as a final judgment
by the court after an express determination that there is no
just reason for delay.
(2) In the absence of such a determination and designation,
any such order or decision shall not constitute a final
judgment for the purpose of an immediate appeal and may
be revised at any time prior to rendition of the judgment
adjudicating all the claims and the rights and liabilities of
all the parties.
Although the amended judgment dismisses, with prejudice, the curators’
“action to annul the August 16, 2017 Act of Donation wherein Calvin J. Gambino,
Sr. donated immovable property located in Tangipahoa Parish to Brad Joseph
Gambino,” the judgment does not address the disposition of the curators’ remaining
actions or claims in the petitions. Additionally, there is no disposition or dismissal
of the reconventional demand, and thus that demand remains a viable action. The
amended judgment is therefore a partial judgment.
While La. C.C.P. art. 1915 A provides that a partial judgment in some
instances may be a final judgment even if it does not grant the successful party all
of the relief prayed for or adjudicate all the issues in the case, none of the instances
enumerated therein are applicable in this case. Further, there is no designation in the
record that the judgment is final for the purposes of appeal and that there is no just
reason for delay as required by La. C.C.P. art. 1915 B(1).
In the absence of such a designation, a judgment “shall not constitute a final
judgment for the purpose of an immediate appeal.” La. C.C.P. art. 1915 B(2). Thus,
since the judgment is not a final judgment under La. C.C.P. art. 1915 A, and has not
been properly designated as such under La. C.C.P. art. 1915 B, we lack subject
matter jurisdiction to consider this appeal. Massi v. Rome, 08-1281 (La. App. 5 Cir.
06/23/09), 19 So.3d 485, 487; Pontchartrain Tavern, Inc. v. Johnson, 07-115 (La.
App. 5 Cir. 08/28/07), 966 So.2d 1062, 1064; O'Connor v. Nelson, 05–125, (La.
App. 5 Cir. 07/26/05), 910 So.2d 441, 443; Eiswirth v. Anthony L. Golemi
19-CA-152 C/W 19-CA-153 5
Contractor, Inc., 02–1060 (La. App. 5 Cir. 01/28/03), 839 So.2d 346, 348;
Mayerhafer Construction, LLC v. Richoux-Buffone, 01-791 (La. App. 5 Cir.
12/12/01), 808 So.2d 763.
DECREE
For the reasons discussed herein, we dismiss the appeal for lack of
jurisdiction, and remand this case to the trial court for complete disposition of the
claims between the parties.
APPEAL DISMISSED
19-CA-152 C/W 19-CA-153 6
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 11, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-152
C/W 19-CA-153
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
CHRISTY M. HOWLEY (APPELLANT)
MAILED
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