author: CARAWAY, J.

text:
    Lola Gibbs GROSJEAN, Plaintiff-Appellee v. Robert E. GROSJEAN and Palmetto Farms, L.L.C., Formerly Known as Palmetto Farms, an Ordinary Partnership, Defendants-Appellants.
    No. 45,529-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 13, 2010.
    Rehearing Denied Oct. 28, 2010.

      Jeff R. Thompson, Bossier City, Louisiana, for Appellant, Palmetto Farms, L.L.C.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche (APLC) Robert E. Grosjean, by Kenneth P. Haines, Robert H. Shemwell, Jr., Ronald R. Weems, Shreveport, Louisiana, for Appellant Gros-jean Contractors, Inc.
    Wiener, Weiss & Madison, by Frank H. Spruiell, Jr., Shreveport, Louisiana, for Appellee, Lola Gibbs Grosjean.
    Before STEWART, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

JQThis dispute among family members concerns the ownership of a former partnership interest owned by the deceased spouse and father of the plaintiff and defendant respectively. Following the partner’s death, the partnership later changed the form of its business entity into a limited. liability company. The plaintiffs suit against her son and the limited liability company seeks recognition of her ownership in the new company. After a trial, the court ruled in plaintiffs favor, and this appeal followed. For the following reasons, we affirm the trial court’s judgment in part and amend the judgment in part to reflect the alternative relief sought by the limited liability company.

Facts

This suit arises out of a family dispute over a membership interest in Palmetto Farms Limited Liability Company (hereinafter the “LLC”). The plaintiff, Lola Leona Gibbs Grosjean (“Lola”), sued her son, Robert E. Grosjean (“Robert”), and the LLC over a one-tenth membership interest of the LLC which was listed in Robert’s name. The membership interest stems from a prior partnership interest originally acquired by Victor Grosjean (“Victor”), Lola’s deceased husband and Robert’s father.

On April 28, 1983, Palmetto Farms, an ordinary partnership (hereinafter “the Partnership”) was created. The Partnership was the owner of land in Bossier Parish. The Partnership essentially functioned as a hunting club, whereby individual partners were permitted to hunt the partnership land. In order to maintain and make improvements upon |2existing partnership land, as well as to occasionally acquire additional acreage, partners were required to make annual payments, referred to as “assessments.” The original agreement for the Partnership was signed by each new partner and their respective spouses, but provided specifically:

That the spouses of the partners shall have no authority with regard to any business of the partnership and they appear herein to consent to the partnership agreement and do so agree that their respective spouses may deal with all property in the partnership’s name without the signature of themselves.

Also, the written agreement for the Partnership did not contain provisions for the death of a partner.

At the time of the 1988 formation of the Partnership, no Grosjean family member was a partner. However, in accordance with an October 31, 1986 document titled “Second Amendment and Restatement of Palmetto Farms Partnership,” Victor became a partner of the Partnership by acquiring a one-ninth interest. The amendment named as new partner “Victor Grosjean, husband of Lola Gibbs Grosjean.”

A “Third Amendment and Restatement of Palmetto Farms” was subsequently executed on February 12, 1988, whereby a one-ninth partnership interest was conveyed to Lola and her two daughters, Vickie Grosjean Cox and Waynette Grosje-an Guillory. This interest was purchased using funds from their business partnership (hereinafter the “GG & C interest”). Further pursuant to the Third Amendment, the remaining partners of the Partnership conveyed an undivided one-tenth interest in the partnership to Grosjean Contractors, Inc. (“Contractors, Inc.”), a family | .¡business, incorporated by Victor in 1977 and owned in community by Victor and Lola. By virtue of the Second and Third Amendments, the Grosjean family collectively owned three partnership interests in the Partnership.

A “Fourth Amendment and Restatement of Palmetto Farms,” was executed on February 12, 1989. It amended the original partnership agreement to replace the previous mandatory unanimity voting requirement with a two-thirds vote for decisions affecting the partnership. Additionally, it adopted the following provision:

During the existence of the partnership there shall be no more that [sic] ten partners and each partner shall designate a member to utilize the property which is owned by the partnership in accordance with the by-laws and other rules and regulations adopted by the partnership. This member shall have the exclusive right to utilize the surface of the partnership property and other assets owned by the partnership in accordance with the rules established in the by-laws and other rules and regulations adopted by the partnership. The designation of the member to have the rights described hereinabove shall only occur after a two-thirds (2/3) vote of approval of the remaining members of the partnership. It is specifically acknowledged that upon the designation of the member by the partner and that member being approved by the other members that that member has the authority to vote on all partnership matters for the partner that they represent.

The three Grosjean interests, each representing a one-tenth interest, were listed individually on the February 1989 Fourth Amendment as “Victor E. Grosjean,” “Grosjean Roofing and Sheet Metal Contractors Incorporated” and “Grosjean, Guillory and Cox, a partnership consisting of Lola Gibbs Grosjean, Vicky Grosjean Cox, and Waynette Grosjean |4Guillory.” Ronald Cox, husband of Vickie Grosjean Cox, was designated the hunting member for the GG & C interest.

Victor died on September 11, 1989, survived by his spouse and six children. Victor died testate leaving Lola one-half of all his community and separate property which he owned at the time of his death. Victor’s children inherited the other one-half of his community property subject to Lola’s usufruct as reflected in a September 1990 Judgment of Possession. The description of the succession property listed in the judgment did not reference a partnership interest in the Partnership, but did identify “a tract of land known as Palmetto Farms” along with a legal description of that land.

Following Victor’s death, the ten memberships in the Partnership continued to be recognized, and assessments by the Partnership for all three Grosjean family interests continued to be made. The K-l tax filing for the Partnership in 1990 made a change by listing Victor’s former interest in Contractors, Inc. Additionally, the GG & C interest which was previously shown as a separate K-l partnership interest was listed in Contractors, Inc. Payments for the Partnership’s assessments were made through Contractors, Inc. on behalf of all three interests.

On November 27, 1995, the LLC was created. On the same day, pursuant to a “Resolution of the Partners of Palmetto Farms Partnership,” all of the Partnership assets were conveyed to the LLC and the LLC assumed | Bany and all liabilities of the Partnership. The Resolution provided specifically:

RESOLVED, that the partnership convey unto Palmetto Farms, L.L.C. all that property listed on Exhibit “A” attached hereto for the consideration that the partners of Palmetto Farms contribute assets into the L.L.C. and that Palmetto Farms, L.L.C. assume any and all liabilities of the partnership in that certain property listed on Exhibit “A” attached hereto.

On November 28, 1995, the Partnership was terminated as shown by the document entitled, “Termination of Palmetto Farms, An Ordinary Partnership,” wherein the partners acknowledged “the dissolution, termination and liquidation of the partnership.” Both the Resolution and Termination were signed by Robert. Robert signed the Resolution in his capacity as a “partner” of the Partnership. These documents are also signed by Ronald C. Cox on behalf of the GG & C interest and by Michael Grosjean, the youngest son of Victor and Lola Grosjean, on behalf of Contractors, Inc. Nevertheless, trial testimony revealed that Michael did not actually sign the documents; rather, Robert signed Michael’s name as the representative of Contractors, Inc.’s interest. The two disputed whether Robert was given Michael’s authorization to sign the Resolution.

Ten interests or memberships continued to be represented in the LLC, including the interests of Contractors, Inc. and GG & C. Victor’s interest, however, was no longer evidenced in any of the documentation of the LLC. Rather a new membership interest was shown in the name of “Robert E. Grosjean.” The formation documents of the LLC therefore name as members the partners of the recently terminated Partnership, excepting the original Victor Grosjean interest and inserting the new Robert E. Grosjean | ^membership. The Articles of Organization of the LLC names as organizers John A. Russo, Jr., Joseph A. Tauzin, Ronald C. Cox and Robert E. Grosjean. The Initial Report of the LLC names these four men as the managers of the LLC and then lists as the LLC’s first members: Grosjean, Guillory and Cox, Robert E. Grosjean, Grosjean Contractors, Inc., and the seven other former partners.

Trial testimony consistently revealed that the sole purpose of the LLC’s creation was to limit the liability of the members in contrast to their former status as partners. The testimony of Dr. Judd Hen-drick Chidlow revealed that he became a partner in the Partnership in 1992 and was currently a member of the LLC. Although Dr. Chidlow was unable to remember specific details regarding the 1995 transactions, he did recall that with the formation of the LLC, the Partnership ceased being a legal entity. He testified that in creating the LLC, there was no intent on behalf of the partners to force anyone out of the organization and that the LLC was simply being formed because it was a better way of doing business. Dr. Chidlow had no specific knowledge regarding the Grosjean family interests in Palmetto Farms.

By Act of Sale, dated May 31, 2005, Contractors, Inc. sold its interest in the LLC to another party. Thereafter, GG & C sold its interest in the LLC in June 2007 for $125,000. The Robert E. Grosjean interest therefore was the only remaining Grosjean family interest in the LLC and remains the present source of contention.

|7On June 30, 2005, a “Shareholders Agreement” was reached whereby Robert and his sister, Vickie Cox, purchased all of the outstanding shares of stock in Contractors, Inc. held by Lola in exchange for the purchase price of $300,000. Lola additionally surrendered all of her usufructuary interest in the company stock and was provided certain income rights by future payments from the company. Upon the conclusion of this sale, Robert and Vickie were collectively vested with ownership of 916.67 shares of the total 1,000 shares outstanding. Robert subsequently acquired the remaining 83-1/3 shares owned by his sister, Waynette G. Dupuy and thereafter, in 2008, Robert purchased Vickie’s 458-1/3 shares of stock, making him the sole shareholder of Contractors, Inc.

On October 4, 2007, Lola filed a petition for declaratory judgment and monetary damages, seeking to have recognized a one-tenth ownership interest in the LLC. Lola’s petition named Robert as a defendant, contending he unlawfully usurped her ownership interest in Palmetto Farms by causing himself to be identified as a partner and later as a member of the LLC without ever personally purchasing an interest in either entity. She further asserted that she was unaware of the conveyance of the partnership assets from the Partnership to the LLC and therefore the November 27, 1995 Warranty Deed was executed without her knowledge or consent. Lola’s petition additionally asserts her family’s ownership of Victor’s interest, claiming her usufruct over the interest of her children. Lola additionally named the LLC as a “nominal defendant” only for the recognition of Lola’s ownership and usu-fructuary interest.

1 ^Robert answered and made Contractors, Inc. a third party defendant, asserting that the corporation was the true owner of the subject interest and that he was merely the previous partner representative in the Partnership and was currently the member representative in the LLC on behalf of Contractors, Inc. Contractors, Inc. subsequently answered and cross claimed against Lola, asserting its ownership in the LLC. Alternatively, in the event Lola is successful in proving ownership, Contractors, Inc. claims entitlement for offset for having paid fees, dues and assessments related to the Partnership and the LLC from 1986 to present. The LLC filed peremptory exceptions of no cause of action, no right of action and prescription.

A bench trial was held in July 2009. In its written opinion, the trial court determined that Lola’s action was best characterized as a real action, specifically a re-vendieatory action recognized by Civil Code article 526. The court found this action to be imprescriptible. The court also rejected the claims of acquisitive prescription raised by Robert and Contractors, Inc. and ruled that the original partnership interest of Victor was now owned by Lola and his children as a membership interest in the LLC.

Regarding the claims of Contractors, Inc., the trial court’s written reasons for judgment stated:

Grosjean Contractors, Inc. has asserted that it is the owner of the interest held in the name of Robert Grosjean. However, the Court notes that there is no evidence indicating the transfer of ownership of such interest to the corporation. Again, testimony during the trial revealed to the Court that the asset was only carried on the books of the corporation in order to increase its bonding capacity.
| flGrosjean Contractors’ cross claim against plaintiff alleging it is entitled to monetary judgment against plaintiff for all of the fees and assessments, which it purportedly paid on her behalf, is denied. The court finds that the company benefitted from carrying the assets on its financial statements for bonding purposes and also received the benefit of being allowed to designate employees of the company and others, hunting privileges in exchange for any monies paid.

By judgment dated November 4, 2009, the trial court denied all three peremptory exceptions filed by the LLC. It then provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Plaintiff, Lola G. Grosjean, and against Defendants, Robert E. Grosjean and Palmetto Farms, L.L.C., recognizing Lola G. Grosjean’s ownership and the ownership of the heirs of Victor E. Grosjean of the membership interest in Palmetto Farms, L.L.C. listed in the name of Robert E. Grosjean, said ownership interests as recognized in the Succession of Victor Grosjean, Suit Number 8881, 26th Judicial District Court, Bossier parish, Louisiana, and specifically identified as follows:
Lola Gibbs Grosjean 75%
Robert E. Grosjean 4.16666%, subject to usufruct of Lola Gibbs Grosjean
Vickie Grosjean Cox 4.16666%, subject to usufruct of Lola Gibbs Grosjean
Waynette Grosjean Dupuy 4.16666%, subject to usufruct of Lola Gibbs Grosjean
Richard Wayne Grosjean 4.16666%, subject to usufruct of Lola Gibbs Grosjean
Will D. Grosjean 4.16666%, subject to usufruct of Lola Gibbs Grosjean
Michael T. Grosjean 4.16666%, subject to usufruct of Lola Gibbs Grosjean

The judgment then went on to dismiss Contractors, Inc.’s cross claim against Lola and to cast defendants with all costs. From this judgment, Robert, Contractors, Inc. and the LLC appeal.

Plaintiff’s Cause of Action

The appellants raise significant issues regarding the plaintiffs cause of action along with the defense of acquisitive prescription by Robert. Appellants also disagree with the trial court’s characterization of the claim as a revendicatory action.

11 ^Additionally, as a related matter, this court notices on its own the judgment’s remedy in favor of five of Victor’s children who were not parties to the action. The peremptory exception for the nonjoinder of parties may be raised and granted by the appellate court on its own motion. La. C.C.P. art. 927.

The resolution of these issues turns on the nature of the property rights at issue when those rights concern ownership of an interest in a partnership and limited liability company. The Civil Code chapter for the “Division of Things” states that “things are ... corporeals and incorporeals; and movables and immovables.” La. C.C. art. 448. Corporeals have a body and can be felt or touched. La. C.C. art. 461. Incor-poreals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servi-tudes, obligations, and right of intellectual property. Id. All things, corporeal and incorporeal, that the law does not consider as immovables, are movables. La. C.C. art. 475.

From these principles, the Civil Code expressly recognizes that an interest in a partnership or a limited liability company is an incorporeal movable, as follows, in Article 478:

Rights, obligations, and actions that apply to a movable thing are incorporeal movables. Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality.

Likewise, our corporations law states that a membership in a limited liability company is an incorporeal movable. La. R.S. 12:1329.

Plaintiffs petition therefore makes an ownership claim to an incorporeal movable which, in this case, is the membership in the LLCj^iOwnership is identified under Civil Code Article 476 as one of the three “rights in things.” Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law. La. C.C. art. 477. Significant for this dispute, Civil Code Article 481 provides:

The ownership and the possession of a thing are distinct.
Ownership exists independently of any exercise of it and may not be lost by nonuse. Ownership is lost when acquisitive prescription accrues in favor of an adverse possessor.

In this case, plaintiffs dispute over ownership, insofar as it involves Robert and her nonparty children, concerns co-ownership or, more precisely, the relationship between the usufructuary and naked owner of a thing. In this regard, Civil Code Article 566 provides:

The usufructuary may institute against the naked owner or third persons all actions that are necessary to insure the possession, enjoyment, and preservation of his right.

Concerning the revendicatory action and Robert’s defense of acquisitive prescription under La. C.C. arts. 3489, et seq., the Civil Code provides:

La. C.C. art. 526. The owner of a thing is entitled to recover it from anyone who possesses or detains it without right and to obtain judgment recognizing his ownership and ordering delivery of the thing to him.
1 üjLa. C.C. art. 3491. One who has possessed a movable as owner for ten years acquires ownership by prescription. Neither title nor good faith is required for this prescription.

For both of these issues, the Civil Code’s definition of possession must first be considered since both acquisitive prescription and the revendicatory action involve possession of a thing and the conflict over ownership that arises from an adverse possessor.

Civil Code Article 3421 defines possession as follows:

Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.

Article 3421 continues and addresses the so-called quasi-possession of a real right, such as a predial servitude, since such incorporeal rights may be exercised by use and thus are susceptible of a type of possession. See, former Article 3432, Civil Code (1870). The disputed interest in the LLC is neither a corporeal thing nor a real right.

As can be seen therefore by this definition for “possession,” the “detention” of a “corporeal thing” is essential. Therefore, the incorporeal thing or incorporeal movable in this action cannot be corporeally possessed or detained by another. Likewise, within the remedy afforded by the revendicatory action, “delivery of the thing” to the plaintiff and the ending of the detention of the thing by the defendant indicate the owner’s recovery of a corporeal movable in kind.

Accordingly, we do not find that Robert may assert that Lola’s claims of ownership of a partnership interest of her deceased husband and the present interest in the LLC were lost by acquisitive prescription due to any | ^adverse possession of those incorporeal movables. We likewise do not find that plaintiffs claim falls squarely under the revendicatory action as defined in Article 526. Nevertheless, plaintiffs petition expressly asserts a claim for declaratory judgment for the recognition of her ownership of the incorporeal rights in dispute. That claim of ownership may not be lost by acquisitive prescription. Likewise, under Article 481, since “ownership exists independently of any exercise of it and may not be lost by nonuse,” we find that plaintiffs suit has set forth a timely cause of action against Robert for a judgment declaring the ownership of the incorporeal movable.

Nevertheless, the asserted recognition of Lola’s ownership in the interests or shares in the Partnership and LLC entities concerns more than just the adverse claim of Robert, but also the contractual agreements for the formation and operation of those entities and the mutual understanding of the partners/members. Plaintiff has named the LLC as a defendant, and the judgment now in dispute purports to bind the LLC for the recognition of her ownership in the defendant entity and that of the unnamed parties. Given the plaintiffs power as usufructuary under Article 566 for the preservation of the incorporeal rights in dispute and the limited liability feature of our limited liability company law (La. R.S. 12:1320), we do not find that the peremptory exception of nonjoinder of these parties is warranted.

| uDiscussion

The complex issues raised by appellants concern not only the transactions and intentions of the Grosjean family but also the transactions and intentions of the former partners of the Partnership and the membership of the LLC. While certain legal issues are presented, the trial court’s judgment rests largely upon its findings of fact.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Menard v. Lafayette Ins. Co., 09-1869 (La.3/16/10), 31 So.3d 996; Brown v. Brian Riley Bar Transport, LLC, 43,326 (La.App.2d Cir.6/11/08), 986 So.2d 901. Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly wrong. Rosell, supra; Cole v. State Department of Public Safety and Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

|15The initial factual and legal controversy which the parties debate concerns the ownership of Victor’s interest in the Partnership, which he apparently acquired as a community property interest during his marriage with Lola. Lola insists that the “partnership interest at issue belonged to Victor and Lola,” which would have implications regarding that interest both before and after Victor’s death. Robert asserts that Victor’s “partnership interest did not devolve to his heirs.” These arguments about a “partnership interest” are resolved by a review of the codal provisions on community property and the law of partnership. In the law, there is a clear distinction between one’s membership in the partnership as a partner and his partnership interest or value in which his spouse and heirs may have rights.

There is no dispute in this record that Victor and Lola first acquired rights in the Partnership in Victor’s name as their community asset. Nevertheless, it is also clear that only Victor, and not Lola, was one of the nine named partners identified in the 1986 “Second Amendment and Restatement of Palmetto Farms Partnership.” Before his death, his partnership share decreased to one-tenth with nine other partners in the Partnership. As such, Civil Code Article 2352 shows that the management right of this community asset of the Grosjeans was exclusively Victor’s and that Lola could not “affect the legal relationship of the partner spouse and the other partners” of Palmetto Farms Partnership. Official Revision Comment, La. C.C. art. 2352.

[ 16After the Civil Code revision of the law of partnership in 1980, a substantial change in the law concerned the continuity of the partnership as a separate and distinct entity despite events such as death or bankruptcy that might terminate an individual partner’s membership in the partnership. La. C.C. arts. 2801 and 2818, and Official Revision Comments, 1980. Upon the cessation of a partner’s membership, which in this case resulted by Victor’s death, the partnership entity continues in the absence of any contrary provision of the partnership agreement, and the following code articles apply:

La. C.C. art. 2823: The former partner, his successors, or the seizing creditor is entitled to an amount equal to the value that the share of the former partner had at the time membership ceased.
La. C.C. art. 2824: If a partnership continues to exist after the membership of a partner ceases, unless otherwise agreed, the partnership must pay in money the amount referred to in Article 2823 as soon as that amount is determined together with interest at the legal rate from the time membership ceases.

In 1989 at the time of Victor’s death, there was no contractual provision governing the Partnership which would alter or prevent the operation of Articles 2823 and 2824. Therefore, this law would supplement the partners’ contract for the consequences of the death of a partner. The result in 1989 at Victor’s death would be that each of the nine remaining partners’ interests would have increased from one-tenth to one-ninth, while the Partnership itself would owe an amount equal to the value of Victor’s former one-tenth share. It is this result which Robert and the LLC, as the successor to the debts of the Partnership, now assert. The LLC, which assumed the Partnership’s debts, has also urged prescription regarding any | i7claim by Lola and Victor’s heirs for the accounting obligation owed by the Partnership for Victor’s share under Article 2824.

While the suppletive law of Articles 2823 and 2824 supports the appellants’ view of the status of the Partnership following Victor’s death, the facts support the trial court’s conclusion that Victor’s partnership interest continued after his death. The Partnership’s tax filings after Victor’s death show that ten partnership shares were continued. The Partnership never attempted to follow the dictates of Article 2824 by determining the value of Victor’s share and offering that amount to Lola and Victor’s heirs. Instead, Contractors, Inc. was billed for the three Grosjean partnership shares for the annual assessments of the Partnership. Contractors, Inc., as the family corporate entity under Lola’s ownership control, acted as the representative for the family in the maintenance of the three family shares within the Partnership. In 1995, at the time of the execution of the termination documents by all partners, the Partnership still reported ten partnership shares without any assertion that Victor’s death had reduced the Partnership membership to nine. Finally, while the 1995 documentation lists Robert’s name for a one-tenth share in the Partnership, there was no showing by the appellants that following Victor’s death the nine remaining partners conveyed a one-tenth interest to Robert in return for a new value contributed by Robert to the Partnership.

A partnership is created by contract. La. C.C. art. 2801. Since the Palmetto Farms Partnership involved the ownership of immovable property from its inception, the Partnership’s creation was by written contract, and 11Rthe record reveals the initial filing of the contract of partnership with the secretary of state in 1983. See La. C.C. art. 2806. Aside from issues surrounding a partnership’s ownership of immovable property as addressed in Civil Code Article 2806, a writing is not essential to a partnership agreement. Lang v. Sproull, 45,208 (La.App.2d Cir.4/28/10), 86 So.3d 407; Porter v. Porter, 36,007 (La.App.2d Cir.6/12/02), 821 So.2d 663; Butler v. Sudderth, 00-1950 (La.App. 5th Cir.4/24/01), 784 So.2d 125, writ denied, 01-1905 (La.10/5/01), 799 So.2d 485; Diaz v. Kelley, 562 So.2d 21 (La.App. 5th Cir.1990); Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. La. C.C. art. 1927. Agreements legally entered into have the effect of law upon the parties thereto, and may be modified or abrogated by the mutual consent of the parties. Snedegar v. Noel Estate, Inc., 438 So.2d 677 (La.App. 2d Cir.1983), writ denied, 442 So.2d 459 (La.1983). The law is clear that written contracts may be modified by oral contracts and the conduct of the parties. Rhodes Steel Bldgs., Inc. v. Walker Const. Co., 35,917 (La.App.2d Cir.4/3/02), 813 So.2d 1171; Williams Engineering, Inc. v. Goodyear, 480 So.2d 772 (La.App. 5th Cir.1985); Maryland Cas. Co. & Southern Equipment, Inc. v. Watson Marine Repair & Cleaning Service, Inc., 416 So.2d 194 (La.App. 1st Cir.1982), writ denied, 421 So.2d 249 (La.1982).

In Diaz, supra, the court recognized that the plaintiff had become a partner in an existing partnership by merely paying a capital contribution to |13the partnership without any other written evidence of her membership as a partner. The court found that she was admitted as a new partner by her payment and the action of the partnership in receiving the payment, and the partnership was so modified.

From these principles, the trial court’s conclusion that Victor’s partnership interest remained as a separate partner’s share in the Partnership after his death is supported by law and fact. While the Partnership could have insisted upon the cessation of Victor’s membership share in the Partnership under Civil Code Articles 2823 and 2821, it did not. By the implications of the Partnership’s actions, Victor’s share was recognized as remaining in the Grosjean family, and the suppletive legal effect of the codal provisions which would otherwise govern the Partnership was modified. None of the remaining nine partners testified to the contrary, as each was content to remain as a one-tenth partner in the Partnership through the time of the Partnership’s termination in 1995.

Regarding the use of Robert’s name in association with Victor’s share of the Partnership after 1989, the Fourth Amendment to the Partnership quoted above shows that a partner’s share owned other than by a single individual required the designation of one person or “member” for the enjoyment of the exclusive right to utilize the land and other assets of the Partnership. Thus, while the Partnership had partners that were business entities, a single “member” representing such partner utilized the property for hunting and related privileges. As Victor’s partnership share was first administered by his succession and later placed into the possession of his |2owife and heirs, the fact that Robert, one of the heirs, was identified with that interest as the “member” participant for his family’s share did not represent an aberration in the conduct of the Partnership’s affairs between 1989 and 1995.

Accordingly, we reject the appellants’ contentions that Victor’s partnership interest did not survive after his death as a partner’s share recognized by the Partnership and owned by Lola and Victor’s heirs. We further reject Robert’s contention that because of Contractors, Inc.’s payment of annual assessments for this disputed interest and the identification of the interest in Robert’s name, the community asset of Robert and Lola became owned by either the company or Robert. There was sufficient testimony of the commingling of Victor and Lola’s personal matters with their closely held corporation before and after Victor’s death to support the trial court’s conclusion that the partnership share which was first acquired in Victor’s name in 1986 remained his personal asset and that of his wife and heirs, including Robert, until the termination of the Partnership in 1995.

Next, regarding the end of the Partnership in 1995 and the formation of the LLC, Robert argues:

(1)There was no merger or conversion that occurred between the two entities;
(2) Lola was never a member of the LLC; and
(3) Although Robert was the named member for the disputed interest of the LLC, he held possession of the membership for Contractors, Inc. and therefore, in any event, acquired the interest in his later purchase of the company.

12i While the LLC also argues Lola’s lack of membership in the LLC, it asserts alternatively that the judgment should be amended to reflect that the LLC interests of Lola and the other non-party children be that of non-member owners/assignees in accordance with our statutory provisions for the assignment of interests in the LLC. La. R.S. 12:1330 and 1332(A).

Any technical label of merger, conversion or buy-out which might be placed upon the 1995 transaction between the Partnership and the LLC has primary relevance for understanding the mutual intent of the founding members of the newly formed limited liability company. See La. R.S. 12:1304(A). With the former Victor Grosjean partner share having been allowed to remain as an interest in the Partnership as discussed above, the intention of the new members for the treatment of all the former partners’ interests upon their creation of the LLC is relevant. Since the LLC did not exist as a separate entity before the 1995 transactions, there was no prior capitalization for its ownership and membership independent of its transactions with the Partnership. The nine partners’ shares which are not disputed became equivalent membership and ownership interests in the LLC. The asset holdings and liabilities of the Partnership became the initial assets and liabilities of the new entity.

Contrary to Robert’s assertion, the Partnership was not dissolved by the liquidation process under Civil Code Arti-cíes 2832, et seq., with its debts paid to its creditors. There was likewise not a sale of the Partnership assets to the LLC and a distribution of sale proceeds to the partners. Instead, under the circumstances presented, the corporation code’s _J_2gdefínition of a business conversion appears applicable. As La. R.S. 12:1601(1) provides:

“Conversion” means the continuance of a domestic entity of one type as a domestic entity of another type.

From the non-legal analysis of Dr. Chid-low, there was no intent on behalf of the partners to force anyone out of the organization, and simply, a better business entity was chosen for the group’s endeavor.

As a result of the 1995 LLC transaction, the underlying ownership of the disputed one-tenth interest involved somewhat ambiguously both Robert and Lola. Robert’s name was listed as the initial member in the LLC. Yet, Robert was a co-owner with his family members of his father’s estate, and like the former limitation of the Partnership for ten participating members, there were only ten members of the LLC. Significantly, Lola’s home address was listed oh the initial report with the secretary of state as the registered address of the LLC. This reflects that the 30% ownership interest (three memberships) of the Gros-jean family was retained in the LLC. Finally, Lola executed a personal guaranty for the debts of the LLC on November 19, 1996.

Under these circumstances, from the perspective of the seven founding members of the LLC who were not Gros-jean-related parties, their intentions and actions in dealing with Robert and in naming him as a member in the LLC does not exclude their understanding of him as a co-owner acting on behalf of the ownership of his family as derived through Victor Gros-jean. Cf. La. C.C. art. 802 (providing that as against third persons, a co-owner has the right to use and enjoy the thing as if he were the Insole owner). Their acceptance of Lola’s continued involvement with the debts of the LLC does not reflect any intent contrary to her continuing ownership. The trial court’s ruling therefore reflects this measure of the intentions of such founding members of the LLC for the entity’s creation, and its fact determination is not manifestly in error. Accordingly, we find that the ownership of Victor’s former partnership interest remained owned by his wife and children as a one-tenth interest in the LLC.

Regardless of this conclusion about Lola’s and her children’s ownership of economic rights in the LLC, member management and privileges can be separate from the ownership of the economic rights for an interest in a limited liability company under Louisiana law. For example, the provisions of the corporation code addressing an assignment of a member’s interest in a limited liability company or a member’s death reveal, in pertinent part, as follows:

La. R.S. 12:1330. Assignment of membership interest
A. Unless otherwise provided in the articles of organization or an operating agreement, a membership interest shall be assignable in whole or in part. An assignment of a membership interest shall not entitle the assignee to become or to exercise any rights or powers of a member until such time as he is admitted in accordance with the provisions of this Chapter. An assignment shall entitle the assignee only to receive such distribution or distributions, to share in such profits and losses, and to receive such allocation of income, gain, loss, deduction, credit, or similar item to which the assignor was entitled to the extent assigned.
B. Unless otherwise provided in the articles of organization or an operating agreement, the pledge of or granting of a security interest, lien, or other encumbrance in or against any or all of the membership interest of a member shall not cause the member to cease to be a member or to have the power to exercise any rights or powers of a member. I24C. Unless otherwise provided in a written operating agreement and except to the extent assigned by agreement, until an assignee of a membership interest becomes a member, the assignee shall have no liability as a member solely as a result of such assignment.
La. R.S. 12:1332. Right of assignee to become a member.
A. Except as otherwise provided in the articles of organization or a written operating agreement:
(1) An assignee of an interest in a limited liability company shall not become a member or participate in the management of the limited liability company unless the other members unanimously consent in writing.
(2) Until the assignee of an interest in a limited liability company becomes a member, the assignor shall continue to be a member.
La. R.S. 12:1333. Powers of estate of a deceased or incompetent member.
If a member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the member’s membership ceases and the member’s executor, administrator, guardian, conservator, or other legal representative shall be treated as an assignee of such member’s interest in the limited liability company....

Professor Kalinka identifies these changes in a member’s relationship to the limited liability company caused by assignment or death as dissociation events. Susan Kalinka, Dissociation of a Member from a Louisiana Limited Liability Company: The Need for Reform, 66 La.L.Rev. 365 (2006). She notes that the dissociation statutes for the limited liability company respect “the principle of delectus personae, that partners have the right to choose their associates.” Id. at 370.

Thus, while we do not find any intention of the seven (non-Grosjean) founding members of the LLC to end the ownership rights of Lola in the ^conversion of the Partnership into the LLC, the documentation for the LLC clearly shows that Robert was the named member for that interest. The appellants are correct that Lola was never included as a member of the LLC. However, under these unique circumstances, we find that the formation of the LLC could occur with Robert’s representation as the named LLC member of the family’s co-owned interest in the former partnership. The result (as though Lola and her children were treated as assignees of this interest in the LLC) is not prohibited under the Louisiana limited liability company law as shown by the above provisions concerning the assignment of a member’s interest in a limited liability company. Accordingly, while we affirm the trial court’s recognition of Lola’s and her family’s ownership of the LLC interest, we amend the judgment to reflect that the voting member of the LLC for the Grosjean family interest is Robert. Such amendment also resolves any claim of Robert and Contractors, Inc. for recovery of assessments paid to the LLC subsequent to Robert’s purchase in 2005 of Contractors, Inc. from his mother.

Finally, we further reject Robert and Contractors, Inc.’s arguments that the disputed interest was acknowledged by Lola in 2005 as an asset of Contractors, Inc., so that any claim to that interest was sold to Robert and his sister, Vickie Cox, as a part of Lola’s stock sale of the company. At the 12(jtime of that transaction, the 2004 balance sheet for Contractors, Inc. did list in its assets as “Investment — Palmetto” an asset entry with a $376,400 value. Robert claims that this entry was for all three of the family’s memberships in the LLC. On the records of the LLC, those memberships stood in the names of Robert, Contractors, Inc. and GG & C. In May 2005, preceding Lola’s sale of her ownership of the business, the membership of Contractors, Inc. was sold for $125,000 and the sale proceeds were used by Contractors, Inc. to have a bank CD in Lola’s name freed as a security pledge for the business. Before this suit, in 2007, the GG & C membership in the LLC was sold to a third party. The proceeds of that sale did not go to Contractors, Inc., but to the three family members who owned GG & C. The membership standing in the name of Robert was never changed in the records of the LLC to reflect its ownership in Contractors, Inc. Last, the testimony of Lola and Ronald Cox, whose wife, Vickie, was also purchasing her mother’s stock, does not reflect that the evaluation of the company’s assets for the sale price to Lola specifically included the value of the membership which was originally purchased by Victor.

The trial court’s ruling was that two of the three family memberships in the LLC were included as assets only for the enhancement of the value of Lola’s closely held company for the company’s bonding capacity. Such commingling of assets did not represent a transfer to Contractors, Inc. of either the former Victor Grosjean membership in Palmetto Farms or the GG & C membership. Our review of the record supports that conclusion and Lithe conclusion that Lola did not sell the disputed membership as a part of her stock sale of the business.

Conclusion

Based upon the above reasoning, the judgment of the trial court recognizing the ownership of Lola and her children of the disputed interest in the LLC is amended to recognize that Robert remains as the member of the LLC with the economic rights in the LLC being owned by Lola and her children in the manner set forth in the judgment. As amended, the judgment is affirmed. Costs of appeal are assessed to Robert E. Grosjean and Grosjean Contractors, Inc.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, GASKINS and CARAWAY, JJ.

Rehearing denied.

      . Grosjean Contractors, Inc. is the successor name for Grosjean Roofing and Sheet Metal Contractors, Inc.

      . There is some dispute as to whether Victor E. Grosjean conveyed twenty percent (20%) of the corporate shares in Contractors, Inc. to Robert prior to his death. Nevertheless, Lola was the controlling shareholder of the corporation following her husband’s death.

      . It is unclear who the designated members of the Victor Grosjean and the Contractors, Inc.'s interests were at the time of the Fourth Amendment’s execution. Victor's signature appears in his representative capacity for both interests.

      . La. C.C. art. 476 states: One may have various rights in things: (1) Ownership; (2) Personal and predial servitudes; and (3) Such other real rights as the law allows.
      Plaintiff is not asserting a predial servitude or a real right, as those rights do not involve incorporeal movables. See La. C.C. art. 646 and Official Revision Comment (b), La. C.C. art. 476. While she would have a usufruct over an undivided interest in the incorporeal movable, Robert adversely claims ownership of the entire LLC interest, making "ownership” of the incorporeal movable central to this dispute.

      . Moreover, even if Robert might be considered as having exercised "possession" of these incorporeal movables, his possession against his co-heirs and co-owners could only commence when he demonstrated sufficient overt and unambiguous acts that gave notice to plaintiff. La. C.C. art. 3478.

      . We also note that four of the five children gave testimony at trial which was favorable to Lola’s claims.

      . La. C.C. art. 2352 provides, in pertinent part, as follows:
      A spouse who is a partner has the exclusive right to manage, alienate, encumber, or lease the partnership interest.

      . None of the parties presented into evidence any operating agreement for the LLC which might address further an interest owned in the LLC in the manner now determined by this judgment. However, the statutory protection afforded assignees of an interest in a limited liability company under La. R.S. 12:1330(A) should now apply to Lola's interest.

      . Moreover, the record does not specifically identify the amount of assessments from the LLC or payments on the debts of the LLC by Robert or Contractors, Inc. after Lola's sale of the business in 2005.


source: Caselaw Access Project

author: CHATELAIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kenneth K. PREJEAN.
    No. 10-480.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Michael Harson, District Attorney, Laurie A. Hulin, Assistant District Attorney, Abbeville, Louisiana, for State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, Louisiana, for Defendant/Appellant, Kenneth K. Prejean.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

hThe defendant, Kenneth K. Prejean, appeals, asserting that his twenty-year sentence for aggravated burglary is excessive. We amend in part to address two errors patent, affirm as amended, and remand with instructions.

FACTS AND PROCEDURE

On September 18, 2007, the defendant knocked on the door of Bettye Miller’s (hereafter Ms. Miller) home in Abbeville and asked where the Attaways lived. Ms. Miller did not know where the Attaways lived, so she allowed the defendant to use her cordless telephone while he was on her carport. The defendant returned to the truck in which he had arrived, spoke to someone, and returned to the door. The defendant then entered Ms. Miller’s home, said, “Give me the money,” and brandished a knife. At that time, Ms. Miller gave the defendant $20.00 she had in her purse and $106.00 she had been saving for her grandchildren. The defendant cut the phone line before leaving Ms. Miller’s home.

On March 5, 2008, the State charged the defendant by bill of information with aggravated burglary, a violation of La.R.S. 14:60. After the defendant entered a plea of not guilty, a bench trial was held on August 25, 2009; on that date, the trial judge found the defendant guilty as charged. On January 11, 2010, after considering a pre-sentence investigation report, the trial judge sentenced the defendant to serve twenty years at hard labor without benefit of parole, probation, or suspension of sentence. Thereafter, the defendant filed a motion to reconsider sentence, urging that his sentence was excessive. On February 25, 2010, following a contradictory hearing, the trial court denied the defendant’s request to reconsider the sentence imposed.

JgEXCESSIVENESS OF SENTENCE

The defendant contends that the trial court failed to comply with La.Code Crim.P. art. 894.1 when it imposed a twenty-year sentence where there were other culpable co-defendants, the offense was committed under the influence of drug intoxication, and the trial court did not specifically note the basis for its sentencing choice. The defendant further argues that the sentence imposed was excessive.

Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant to set forth the specific grounds on which a motion to reconsider may be based. Failure to include a specific ground upon which a motion to reconsider sentence may be based “shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” Id. In the present case, although the defendant generally raised the issue of excessiveness in his motion to reconsider sentence, he failed to specifically allege that the trial court failed to consider the factors of La.Code Crim.P. art. 894.1. Accordingly, because that claim was not specifically set forth in his motion to reconsider, it cannot be reviewed in this appeal, State v. Landry, 09-260 (La.App. 3 Cir. 11/4/09), 21 So.3d 1148, turit denied, 09-2577 (La.5/21/10), 36 So.3d 229, and our review of the defendant’s sentence is restricted to his bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993).

The sentencing court has broad discretion in imposing penalties for criminal convictions:

A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and therefore, is nothing more than the needless [.¡imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158, 1167 (citations omitted). “The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

Louisiana Revised Statutes 14:60 sets forth the sentencing range for aggravated burglary, as follows: “Whoever commits the crime of aggravated burglary shall be imprisoned at hard labor for not less than one nor more than thirty years.” Therefore, in the present case, the defendant’s sentence is within the statutory range legislatively provided for the crime of aggravated burglary and is two-thirds of the maximum allowable sentence thereunder.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.”

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations omitted).

14At sentencing, the trial court referenced the pre-sentence investigation report and noted that the defendant had eight prior felony convictions and that several of those involved crimes of violence. The trial court stated that it would accept the Louisiana Department of Corrections’ sentencing recommendation and sentenced the defendant accordingly. The trial court further recommended that the defendant undergo substance abuse treatment during his period of incarceration.

When the defendant’s motion for reconsideration of sentence was heard, defense counsel noted that the other participants involved in the present offense received considerably lesser sentences. Accordingly, he urged this in support of his argument that the defendant’s sentence was excessive.

There is no requirement that co-defendants receive equal sentences. See State v. Taylor, 01-1688 (La.1/14/03), 838 So.2d 729, cert. denied, 540 U.S. 1103, 124 S.Ct. 1036, 157 L.Ed.2d 886 (2004); State v. Rogers, 405 So.2d 829 (La.1981). Notwithstanding, in State v. Quimby, 419 So.2d 951, 962 (La.1982), our supreme court stated:

This does not mean that disparity in sentences of co-defendants with similar backgrounds, charged with similar participation in identical crimes may not be considered as a factor in determining whether a sentence is excessive and out of proportion to the severity of a crime. It is only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity. State v. Sims, 410 So.2d 1082 (La.1982).

“In providing a wide range of criminal sanctions for violations of a statute, the legislature obviously intends that the [trial court] shall exercise [its] sentencing | Bdiscretion to impose sentences gradated according to the individualized circumstances of the offense and of the offender.” State v. Sepulvado, 367 So.2d 762, 766 (La.1979). Indeed, the individualization of a sentence cannot be accomplished “without independently considering the merits of each case.” State v. Day, 414 So.2d 349, 352 (La.1982). Simply stated, “[disparities are inherent in a system where punishment is tailored to fit the defendant and the crime.” Id.

Against that backdrop, it is clear that the trial court in the present case heeded those statutory requirements and jurisprudential admonitions. As reflected in the colloquy at the hearing on the defendant’s motion to reconsider sentence, the State, without any assertion to the contrary by the defendant, emphasized that the defendant was more culpable of this crime than his co-defendants. In making that assertion, the State stressed that it was the defendant who approached the victim, entered her home without her permission, brandished the knife, and stole from her. Accordingly, we And our review of the record fully justifies the disparity in the sentences of the co-defendants and exhibits that the trial court truly individualized the sentence to this defendant.

We further find that a comparison of sentences for similarly situated defendants and a like crime shows that the trial court’s sentencing choice in the present case conforms with rather than deviates from those cases. See State v. Williams, 448 So.2d 659 (La.1984) (a twenty-one year old defendant with two prior convictions was sentenced to twenty years for the aggravated burglary of a sixty-one year old woman who resided alone); State v. Cormier, 534 So.2d 994 (La.App. 3 Cir.1988), unit denied, 587 So.2d 691 (La.1991) (a twenty-year sentence for a first-time offender for |fithe aggravated burglary of the defendant’s great-grandmother’s home was not excessive where the defendant armed himself with a hatchet).

For the foregoing reasons, we cannot say that the defendant’s twenty-year sentence is excessive. Therefore, the defendant’s assignment of error lacks merit.

ERRORS PATENT REVIEW

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After carefully reviewing the record, we found two errors patent — one concerning restrictions the trial court placed on the defendant’s sentence and another regarding the notification the trial court provided the defendant concerning the time limitation for filing an application for post-conviction relief.

Initially, we observe that the trial court imposed the defendant’s twenty-year sentence for aggravated burglary without benefit of parole, probation, or suspension of sentence. Louisiana Revised Statutes 14:60 provides that a person convicted of aggravated burglary “shall be imprisoned at hard labor for not less than one nor more than thirty years.” The statute does not restrict parole, probation, or suspension of sentence. Notwithstanding, La. Code Crim.P. art. 893 prohibits the court from suspending and placing on probation persons convicted of various crimes of violence, including aggravated burglary. See La.R.S. 14:2(B)(20) (specifying aggravated burglary as a crime of violence). It does not prohibit parole. La.Code Crim.P. art. 893. It is evident that the trial court erred when it ordered the defendant’s sentence served without benefit of parole. Therefore, we amend the defendant’s sentence to delete the denial of parole eligibility and instruct the trial court to make a minute entry reflecting this amendment. State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981.

| ./Additionally, our review of the record shows that the trial court incorrectly informed the defendant regarding the time limitation for filing an application for post-conviction relief. Although the court minutes show that the trial court correctly advised the defendant that he had two years from final judgment of conviction to file for post-conviction relief, the sentencing transcript indicates that the trial court incorrectly informed the defendant that the two-year period commenced from the date of sentencing.

Louisiana Code of Criminal Procedure Article 930.8 provides that the time period for filing an application for post-conviction relief is two years and that it begins to run when the judgment of conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 and 922. Because of the contradictory information provided the defendant, we instruct the trial court to inform the defendant of the correct provisions of Article 930.8 by sending written notice to him within ten days of the rendition of this opinion and to file written proof in the record that the defendant received the notice.

DECREE

For the foregoing reasons, we amend the defendant’s sentence to delete the denial of parole eligibility and instruct the trial court to make an entry in the minutes that reflects that change. Additionally, we order the trial court to inform the defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending appropriate written notice to the defendant within ten days of the rendition of this opinion and to file proof in the record that the defendant received the notice. As amended and for the foregoing reasons, we affirm the defendant’s sentence.

AMENDED IN PART; AFFIRMED AS AMENDED; AND REMANDED WITH INSTRUCTIONS.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . See our later errors patent discussion of the trial court's imposition of sentence without benefit of parole, probation, or suspension of sentence.

      . Although the defendant expressed surprise at the trial court’s statement in this regard, he presented nothing to contradict the trial court’s appreciation of his criminal history. Moreover, the record nonetheless reflects that the defendant was arrested thirty-four times since 1993; among the crimes listed are: aggravated battery with a dangerous weapon; second degree battery; theft; illegal possession of stolen goods; parole violation; manufacture, distribution, and possession of Schedule I drugs; possession of marijuana; forgery; and unauthorized entry of an inhabited dwelling.

      . Even though defense counsel argued that two co-defendants received suspended sentences and another received a one-year sentence, the record is void of any evidence to that effect.


author: DECUIR, Judge.

text:
    Jerry Eugene POWERS, et al. v. ROYAL MANUFACTURED HOMES, LLC, et al.
    No. 10-489.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Kevin John Christensen, Kevin Christensen & Associates, LLC, New Orleans, LA, for Defendant/Appellee, Charming Castle, LLC.
    Patrick C. Morrow, Candyce C. Gag-nard, Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Defendant/Appellant, Royal Manufactured Homes, LLC.
    C. Brent Coreil, Virginia Cored Drago, Attorneys at Law, Ville Platte, LA, for Plaintiffs/Appellees, Jerry Eugene Powers, et al.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   DECUIR, Judge.

h Plaintiff, Jerry Eugene Powers, and his now-deceased wife, Ethel Elaine Powers, filed this redhibition suit against Royal Manufactured Homes L.L.C. complaining of numerous defects in a mobile home they purchased in 2005. The matter was submitted to arbitration, and an award was issued in the plaintiffs favor on November 4, 2008. Objecting to the sufficiency of the award, the plaintiff filed a motion to vacate on February 4, 2009 which was granted by the trial court. The defendant has appealed and we affirm.

The trial court issued reasons for judgment which succinctly set forth the nature of the controversy before us:

In November of 2005 Plaintiffs, Jerry Eugene Powers and Ethel Elaine Powers purchased from Royal Manufactured Homes, L.L.C., a 2004 Indies House Mobile] Home for a total sum of Ninety Thousand Six Hundred and No/100 ($90,600.00) Dollars.
Immediately after the mobile home was set up problems with the structure began to manifest itself and plaintiffs filed a suit in redhibition. At the time of the filing a suit, plaintiffs had enumerated a list of sixty (60) problems with the mobile home. Defendants countered with an exception, which called for arbitration.
Mr. and Mrs. Powers initiated the arbitration proceedings against the defendants by filing a “demand for arbitration” with the American Arbitration Associations and after some delays, Mr. Michael Patterson was selected as the Arbitrator. Mr. Patterson apparently began the process and made certain crucial ruling, which had an impact on the case before declaring that he had an ethical conflict in the case and withdrew. A subsequent Arbitrator was put in place and this subsequent Arbitrator rendered a ruling to which plaintiffs have objected and seek to have the arbitration award vacated and remanded to this Court.
While the law of this State recognized that Louisiana Public Policy favors resolution of disputes through arbitration, the laws of this state demand that all Judicial hearings or Quasi Judicial hearings be fair, impartial and above board as is shown by the adoption of the “reasonable impression of partiality” standard.
While this Court may go into a minute detailed examination of all the facts of the way this case was handled, it need go no further than Mr. Patterson. It is clear to this Court that Mr. Patterson knew of his ^relationship to one of the attorneys in this case from the beginning. In spite of this knowledge, he assumed the detailed responsibilities of this case and after making rulings, which greatly affected the outcome, cited an ethical conflict, and withdrew.
It is the opinion of the Court that the arbitration proceedings were tainted by Mr. Patterson’s conflict in this case and clearly fall within the scope of La.R.S. 9:4210. Since plaintiffs timely filed the Motion to Vacate the Arbitration award, this Court has no choice but to vacate the arbitration award and remand the case to this Court for further proceedings.

On appeal, Royal Manufactured Homes raises three issues for our review: res judicata, the failure to prove a statutory basis for vacating the award, and the untimeliness of the plaintiffs objection to the validity of the arbitration agreement. Upon review of the record before us, we find no merit to the arguments raised by the defendant.

In NCO Portfolio Mgmt., Inc. v. Walker, 08-1011, pp. 7-8 (La.App. 3 Cir. 2/4/09), 3 So.3d 628, 633, this court explained,

“[Ajrbitration is favored, and an arbitration award is res judicata. Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed, and the burden of proof is on the party attacking the award.” Louisiana Physician Corp. v. Larrison Family Health Ctr., L.L.C., 03-1721, p. 2 (La.App. 3 Cir. 4/7/04), 870 So.2d 575, 578; Chase Bank USA, N.A. v. Roach, 07-1172 (La.App. 3 Cir. 3/5/08), 978 So.2d 1103, 1104. “It is well settled in both state and federal courts that an award may be challenged only on the grounds specified in the statute. The court cannot substitute its conclusion for that of the arbitrator.” Firmin v. Garber, 353 So.2d 975, 977 (La.1977) (citations omitted). The grounds for setting aside an arbitration award are specifically set out in La.R.S. 9:4210. Absent the existence of one of the specified grounds, a reviewing court is prohibited from reviewing the merits of an arbitrator’s decision. Louisiana Physician Corp., 870 So.2d 575; see also Allen v. A & W Contractors, Inc., 433 So.2d 839 (La.App. 3 Cir.), writ denied, 438 So.2d 578 (La.1983).

Before this court can discern whether res judicata serves to bar review of the merits of the arbitrator’s decision, we must first decide whether the plaintiffs motion to vacate, premised on La.R.S. 9:4210, has merit. The statute provides as follows:

lain any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

The trial court found proof of the arbitrator’s bias, and the record supports this finding. The original arbitrator assigned to the case had a close personal and business relationship with the law firm representing the defendant. The arbitrator was aware of his own ethical conflict yet accepted the assignment, met with an attorney whom he had once employed, then ruled on a critical discovery conflict in the defendant’s favor. Subsequent to that ruling, the arbitrator disclosed his relationship with defense counsel to the plaintiff. The trial court determined these circumstances tainted the proceedings and inhibited any impression of impartiality crucial to the proceedings.

We find no error in this conclusion and affirm the finding that plaintiff proved sufficient statutory grounds for setting aside the arbitration award. Consequently, we conclude that judicial review of the arbitration award is not barred by application of the doctrine of res judicata.

[/The question of the validity of the Arbitration Agreement Addendum signed by the plaintiff has also been raised by the parties, as the trial court assumed jurisdiction over all further proceedings, thereby apparently invalidating the signed arbitration agreement. The defendant argues the plaintiff untimely asserted his complaint that the agreement is invalid. Rather than raising this issue in the trial court, the defendant contends the issue of invalidity should have been addressed during the arbitration. The defendant does not seriously dispute the invalidity of the agreement, an “addendum” which purports to attach to and reference an installment sales contract which does not exist. In fact, Royal Manufactured Homes lost its appeal in a similar case involving the same addendum which this court characterized as “ill-conceived” and riddled with “confusion and ambiguity, as it attempted to incorporate by reference a document and a transaction that did not exist at any time” between the parties. Easterling v. Royal Manufactured Housing, LLC, 07-192, p. 14 (La.App. 3 Cir. 6/6/07), 963 So.2d 399, 408. Instead, the defendant contests merely the timeliness of the plaintiffs complaint regarding an “addendum” which references a contract that does not exist.

First, the plaintiffs motion to vacate was filed within three months “after the [arbitration] award [was] filed or delivered,” as required by La.R.S. 9:4213. Second, because the arbitration award has been vacated, the validity of the arbitration agreement itself is now a question for the trial court. The fifth circuit describes the validity question as a threshold finding which must be determined regardless of timing. “[T]he validity of the underlying arbitration award rests on whether there is a valid arbitration agreement and the time limit imposed in the FAA for the debtor to modify the arbitration award does not come into play unless there is a valid written |5agreement to arbitrate.” NCO Portfolio Mgmt., Inc. v. Gougisha, 07-604, p. 7 (La.App. 5 Cir. 4/29/08), 985 So.2d 731, 734, writ denied, 08-1146 (La.9/26/08), 992 So.2d 986. While this court in Walker criticized the open-ended language of Gougisha, it is clear the validity question would be appropriately addressed by the trial court on remand, now that the arbitration award itself has been vacated.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to the defendant, Royal Manufactured Homes, LLC.

AFFIRMED.


author: GENOVESE, Judge.

text:
    WAGONER GRAVEL[,] LLC v. C. & J. DIRT, INC.[,] et al[.]
    No. 10-494.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      L. Lane Roy, M. Benjamin Alexander, Matthew S. Green, Preis & Roy (A Professional Law Corporation), Lafayette, LA, for Defendant/Appellant, Gilchrist Construction Company, LLC.
    Virgil Russell Purvis, Jr., Jonesville, LA, for Defendant/Appellant, Gilchrist Construction Company, LLC.
    John Sturgeon, Sturgeon & Boyd, Ferri-day, LA, For Plaintiff/Appellee, Wagoner Gravel, LLC.
    James L. Carroll, Mixon & Carroll, PLC, Columbia, LA, for Defendants/Ap-pellees, Homeland Federal Savings Bank on behalf of C & J Dirt, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.

      . On December 3, 2009, Gilchrist filed a Motion for Leave [of Court] to File Cross Claim on Behalf of Gilchrist Construction Co., LLC, which was opposed by Wagoner. The trial court set a hearing date of December 28, 2009. The motion was heard by the trial court along with Wagoner's Rule to Traverse Gilchrist’s Answers to Garnishment Interrogatories on December 14, 2009, at which time Gilchrist was granted leave to file its Cross Claim.

   GENOVESE, Judge.

|,In this garnishment proceeding, the garnishee, Gilchrist Construction Company, LLC (Gilchrist), appeals the judgment of the trial court in favor of garnishor, Wagoner Gravel, LLC (Wagoner), on Wagoner’s rule to traverse garnishment interrogatories propounded to Gilchrist. For the following reasons, we reverse and vacate the judgment.

FACTS

The Louisiana Department of Transportation and Development (DOTD) began an extension project of Highway 131 in Con-cordia Parish, Louisiana. Gilchrist, the general contractor in charge of the project, executed a purchase order with C & J Dirt, Inc. (C & J), a subcontractor, to supply the necessary dirt and fill for the project. C & J entered into an agreement with Wagoner, the operator of a dirt and gravel pit, to supply the fill for the project and to transport it to the construction site. After delivery of the fill to the construction site had begun, it was discovered that the fill failed to meet DOTD specifications; thus, the construction project ceased. Remediation efforts were made to cure the fill, and, ultimately, the fill met DOTD specifications. Invoices between these entities allegedly went unpaid.

Wagoner filed suit against both C & J and Gilchrist, alleging it was owed $52,332.58 for providing the labor, materials, and transportation in connection with the construction project. In response, Gilchrist filed Exceptions of No Cause of Action, Vagueness and Ambiguity, and No Right of Action, and Answer to Petition. C & J failed to answer Wagoner’s petition, resulting in Wagoner obtaining a default judgment against C & J in the amount of $52,332.58. Subsequently, Gilchrist filed a Cross Claim against C & J, alleging that the fill provided by the subcontractor was 12redhibitorily defective, and, consequently, C & J was indebted to Gilchrist for $70,605.09.

In this same proceeding, Wagoner, as judgment creditor, filed a Petition for Garnishment against Gilchrist, as garnishee, wherein Wagoner prayed for the issuance of a writ of fieri facias for the seizure of “property and/or funds owed by the defendant, [C & J,] in the possession and/or control of either [sic] garnishee.” The trial court signed the order on October 23, 2009, stating in pertinent part, as follows:

IT IS FURTHER ORDERED that a writ of Writ of [sic] Fieri Facias issue, commanding the Sheriff of Rapides Parish [to] seize the property of the judgment debtor, [C & J,] in the possession of Gilchrist Construction Company, LLC[,] sufficient to satisfy the Plaintiffs judgment, in the amount of $52,332.58 and legal interest from the date of demand and costs.

In response to the Garnishment Interrogatories that were served along with the Petition for Garnishment, Gilchrist denied that it controlled any money, rights, credits, or property that belonged to C & J. To the contrary, Gilchrist responded that the “judgment debtor, [C & J,] is indebted to Gilchrist in the amount of at least $11,551.99. Therefore, it is [C & J] who has under its control money, rights, credits!,] and/or other property belonging to Gilchrist.” And, in further response to Wagoner’s Garnishment Interrogatories, Gilchrist stated that “[C & J] breached its agreement with Gilchrist by providing materials that were redhibitorily defective, causing Gilchrist to incur substantial expenses as a result, which renders [C & J] |,(¡liable unto Gilchrist.”

Wagoner filed a Rule to Traverse Gilchrist’s Answers to Garnishment Interrogatories, asserting that even if a credit of $11,551.99 was taken from the amount Gilchrist contended it was owed by C & J, there remained a balance of $68,818.71 due to C & J, which was in the possession of Gilchrist and was more than sufficient to satisfy Wagoner’s judgment. Gilchrist countered that Wagoner’s computation was erroneous, explaining that the remediation costs it incurred to cure the fill was actually $11,555.99 more than the amount of the purchase price C & J contended it was owed by Gilchrist.

Wagoner’s rule to traverse was heard in the trial court on December 14, 2009. After taking the matter under advisement, the trial court signed a judgment in favor of Wagoner on February 25, 2010, ordering: (1) that Gilchrist’s Answers to Garnishment Interrogatories be traversed, declaring them to be inaccurate, and amending said answers to reflect a balance owed by Gilchrist to C & J of $75,362.57; (2) that Gilchrist, as garnishee, comply with the Writ of Fieri Facias in satisfaction of the October 23, 2009 judgment in favor of Wagoner and against C & J in the amount of $52,332.58; and, (3) that Gilchrist pay Wagoner $2,500.00 in attorney fees. Gilchrist appeals.

ASSIGNMENTS OF ERROR

Gilchrist presents the following assignments of error:

1. The trial court erred in determining that Gilchrist was “indebted” to [C & J],
2. The trial court erred in authorizing garnishment on a debt that had been extinguished due to compensation pursuant to [La.Civ.Code art. 1893].
3. The trial court committed legal error in authorizing a garnishment judgment against a party defendant.
|44. The trial court erred as a matter of law in finding that Wagoner met its burden of proof to traverse Gilchrist’s [A]nswers to [Garnishment [Interrogatories.

LAW AND DISCUSSION

Because it is dispositive of the matter before us, we will address the issue of whether legal error was committed by the trial court in authorizing a garnishment judgment against Gilchrist.

Louisiana Code of Civil Procedure Article 2411(A) (emphasis added) provides as follows:

The judgment creditor, by petition and after the issuance of a writ of fieri facias, may cause a third person to be cited as a garnishee to declare under oath what property he has in his possession or under his control belonging to the judgment debtor and in what amount he is indebted to him, even though the debt may not be due. He may require the third person to answer categorically and under oath the interrogatories annexed to the petition within the delay provided by Article 2412.

In the instant matter, Wagoner filed suit, seeking payment of $52,332.58 and naming both Gilchrist and C & J as defendants. Once Wagoner obtained a default judgment against C & J, it then sought to collect the amount owed under that judgment from Gilchrist via garnishment proceedings. However, Gilchrist, a co-defendant in the case, is not a “third person” as required by the express terms of La.Code Civ.P. art. 2411. Consequently, Plain-tifl/Wagoner, proceeding in its capacity as judgment creditor of Defendant/C & J, cannot pursue Defendant/Gilchrist, as garnishee, in satisfaction of the default judgment obtained against a co-defendant.

Long-standing jurisprudence states that a garnishment proceeding may not be pursued against a party defendant. In Swift & Co. v. Centerville Co. Inc, 161 La. 183, 108 So. 408, 408 (1926), our supreme court held that “[ojnly third persons, not defendants in the suit or in execution of a judgment, can be garnisheed under the provisions of [ fiarticles 242 and 642 of the Code of Practice[,]” which articles were the precursor to La.Code Civ.P. art 2411. Applying the literal language of the articles, the court opined that defendants in a suit were not “third persons” and, thus, were “not subject to the garnishment process, because they are the defendants, and this process is not authorized against the defendant in a suit.” Id. at 409. Therefore, our supreme court held that “only third persons who have property in their possession or under their control, or who may be indebted to the judgment debtor, can be garnisheed.” Id. See also Richardson v. Lacey, 27 La.Ann. 62 (La.1875) and Bailey v. Lacey, 27 La.Ann. 39 (La.1875).

Undisputedly, in the instant case, Wagoner named C & J and Gilchrist as co-defendants. Although Wagoner obtained a judgment against C & J, it cannot seek satisfaction of that judgment against Gilchrist. Allowing a plaintiff/judgment creditor to execute a judgment obtained against one defendant by proceeding with a garnishment action against a co-defendant/garnishee is tantamount to converting a rule to traverse into a trial on the merits as the claims relate to this co-defendant. Moreover, the procedure employed by the trial court in this matter is legally impermissible. Wagoner’s claim against Defendant/Gilchrist for money due must proceed by trial on the merits via ordinary process and not pursuant to a garnishment proceeding, which is a summary proceeding. See Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 94-450 (La.App. 3 Cir. 11/2/94), 649 So.2d 581. As such, we find that Gilchrist is not a “third person” subject to garnishment under La.Code Civ.P. art. 2411, and, therefore, it was legal error for the trial court to cast Gilchrist in judgment relative to Wagoner’s Petition for Garnishment. Having found that the trial court erred in authorizing a garnishment judgment against a party defendant, we _|£ieed not address Gilchrist’s remaining assignments of error.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Wagoner Gravel, LLC, and against Gilchrist Construction Company, LLC, is reversed and vacated in its entirety. Costs of this appeal are assessed to Wagoner Gravel, LLC.

REVERSED AND VACATED.

      . The record reflects that subsequent to the December 14, 2009 hearing, an Answer to Cross Claim and Counter Claim was filed by Homeland Federal Savings Bank (HFSB) on behalf of C & J, asserting therein that "[C & J] factored [an] invoice with [HFSB] for the full amount of $19,346.10[,]” which it alleged was owed by Gilchrist to C & J. Further, HFSB alleged that "Gilchrist unilaterally and without [C & J's] or [HSFB’s] consent[,] paid $119,753.39 against an amount owed of $188,806.49, leaving a balance still owed of $69,053.10.”


author: AMY, Judge.

text:
    SUCCESSION OF Milton ELIE.
    No. 10-525.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Marvin F. Gahagan, Gahagan and Gaha-gan, Natchitoches, LA, for Appellee, Trinette LaShande Elie.
    Edward Larvadain, Jr., Alexandria, LA, for Appellants, Betty Jones, Schrieta Jones, Mildred Elie.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and DAVID E. CHATELAIN , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   AMY, Judge.

hThe succession administratrix sought to recover funds withdrawn by the decedent’s sister from a joint banking account. The decedent’s mother and sister joined in a separate action against the succession seeking funds to pay for the decedent’s mother’s care. The trial court issued judgment finding that the decedent’s sister was not entitled to the funds formerly in the joint bank account. It further held that the decedent’s mother had no cause of action against the succession. The decedent’s mother and sister appeal. For the following reasons, we affirm.

Factual and Procedural Background

Milton Elie (Milton) died intestate on April 15, 2009, in Natchitoches, Louisiana. He was survived by one heir, Trinette Leshande Elie (Trinette), a daughter born during his marriage to Joann Nelloms Elie (Joann). The marriage between the two ended in divorce in 1983. At the request and consent of Trinette, following Milton’s death, the trial court appointed Joann as the succession’s independent administra-trix on May 15, 2009. Trinette filed a sworn detailed descriptive list of her father’s assets which included a piece of immovable property located in Natchitoch-es and a Bank of Montgomery checking account. This dispute arises over the ownership and disposition of that checking account.

The record reveals that Milton opened the account solely in his name on December 28, 2004, with an initial deposit of $192,540.00. At some point before his death, Milton added his sister, Betty Jones (Betty), to the account. Betty alleges that she gave money to Milton for safekeeping against her abusive husband. She asserts that she initially gave Milton $25,000.00 and continued to add to this amount periodically.

| zAfter Milton’s death, and before Joann was appointed as administratrix, Betty withdrew the remaining funds of the checking account in the amount of $100,125.02. The record reveals that Betty paid Milton’s funeral expenses in addition to some of his outstanding debts in the amount of $11,842.76. Joann, as ad-ministratrix, sought from Betty the remaining balance of the account: the $100,125.02 minus the $11,842.76 expenses. However, Betty returned only $38,220.34 to the succession, asserting that $50,000.00 of the $100,125.02 belonged to her.

On July 30, 2009, the administratrix filed a rule to show cause why Betty should not return to the succession the entire sum of $100,125.02. Betty answered, again asserting that the $50,000.00 was her money she had given to her brother for safekeeping. Attached to her answer was a document she alleges was found in Milton’s nightstand after his death which was prepared and signed by Milton as an intended will. Betty does not allege that the “nightstand document” meets the necessary legal formalities to be considered a proper will, rather, she asserts that it is proof that she is entitled to the $50,000.00. The document reads, in pertinent part, as follows:

The checking account that is located at Bank of Montgomery, Derry branch that I am co-owner with my sister Betty Jones is only one half mine. My portion is to pay for any expenses due upon my death, my final bills due and any money left over on my half shall go to my sister Betty Jones, my niece Schrita Jones, to care for my mother Mildred Elie needs and my two great-nieces MaKayla and Mariah Jones. The other half of the money in the checking account belongs to my sister Betty Jones.

In addition to filing an answer, Betty, joined with Schrita Jones, Milton’s niece, and Mildred Elie, Milton’s mother, filed a “Petition to Regain the Sum of $38,320.40 | ^Tendered.” The petition sought to have the money Betty had earlier tendered to the succession returned to them “to be used to provide for food, clothing, shelter, and health care of Mildred Elie, mother of Milton Elie and his two nieces.”

Following a hearing, the trial court found in favor of the succession and against Betty Jones for $50,000.00. Further, the trial court found that Betty, Mildred and Schrita had no cause of action in the petition for the $38,320.34, and ordered that the money, which was being held by counsel for the succession, be turned over to the independent administratrix for the benefit of Milton’s succession.

Betty appeals, challenging the trial court’s finding that she did not prove her ownership of the $50,000.00. Further, Betty asserts that the administratrix did not sustain her burden of proving the funds belonged to Milton. Betty and Mildred also appeal the trial court’s judgment that they did not have a cause of action against Milton’s succession.

Discussion

Betty’s Claim to the $50,000.00.

Betty first asserts that the admin-istratrix/mover did not meet her burden of proving the disputed funds belonged to Milton. She argues that, at the hearing on the rule, the only evidence introduced by the administratrix was a document showing Milton’s initial deposit of funds. Next, Betty argues that the trial court erred in finding that she did not prove her ownership of the disputed funds.

In Louisiana, funds deposited into a joint bank account remain the property of its original owner and his or her estate at death, absent an authentic act of donation. Succession of Fralick v. Sec’y of Dept. of Revenue, 529 So.2d 159 (La.App. 3 Cir.1988). The right of withdrawal, or having one’s name listed on the account, is not tantamount to ownership. Id.; See also Cantrell v. Pat O’Briens Bar, Inc., 97-545 (La.App. 4 Cir. 1/7/98), 705 So.2d 1205. Thus, Betty had to prove her ownership of $50,000.00. A reviewing court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, a trial court’s credibility determinations are entitled to great deference. See Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.1/16/08), 974 So.2d 635 (on rehearing).

In its reasons for ruling, the trial court stated its findings, in pertinent part as follows:

The Court does not accept this document [the “nightstand document”] as authentic or credible, much less as evidence of Milton’s intent. This questioned document does not provide any information regarding the balance in the account on May 15, 2005, when Milton supposedly wrote this document. Furthermore, bank balances fluctuate and it is implausible to believe that the bank account maintained a balance of $100,000.00 at all times, $50,000.00 of which supposedly belong to Betty. There are no bank records to indicate what the bank balance was on the date of the questioned document, nor are there any bank records to indicate the account name changed from “Milton Elie” to “Milton Elie or Betty Jones.” Betty has simply failed to prove this essential information.
After listening carefully to the witnesses, observing their demeanor, and conscientiously considering all the facts, the court does not find the testimony of the witnesses to be reliable, nor is it supported by any physical evidence. Furthermore, the Court has disregarded the “nightstand document” and finds that it provides no proof to Milton’s intent, if in fact his intent were relevant. Betty has failed to offer credible evidence which identifies or traces the funds allegedly belonging to Betty.

After review, we find that the record supports the trial court’s determination that Betty did not prove entitlement to $50,000.00 of the funds in the bank account. Betty testified at the hearing that she gave money to Milton for safekeeping, [¡^beginning with an initial $25,000.00 deposit. She further testified that she added to this amount periodically. However, Betty offered no bank records of any deposits that purportedly represented this money. At the hearing, Ethel Berryman Elie, Milton’s sister-in-law, testified that she saw Betty bring Milton a “little brown paper bag” filled with cash for him to deposit in the account. Madie Lou Pier-son, an ex-girlfriend of Milton, also testified that she would see Milton and Betty go to the bank together, and that Milton told her numerous times that he was keeping money in the account for Betty. Both testified that $50,000.00 of the money in the account belonged to Betty, however, neither of the women could identify an amount of any of Betty’s deposits.

On the other hand, at the hearing, the succession entered into evidence the certificate of deposit which opened the account in question. The document dated December 28, 2004, lists Milton Elie as the account owner. It lists the “initial deposit” as $192,540.00. As stated earlier, funds deposited in a joint bank account remain the property of its original owner and his estate at death, absent an authentic act of donation. Succession of Fralick, 529 So.2d 159.

In light of the reasons above, we find no manifest error in the trial court’s determination that Betty did not prove her entitlement to $50,000.00 of the money in the account.

Mildred’s Claims

Mildred, Milton’s mother, asserts that the trial court erred in finding that she did not have a cause of action against Milton’s succession and in determining that the succession owes no duty to support her. In brief, she argues that “Milton Elie, during his lifetime, set aside funds for his mother as the dutiful and caring son he was and, [fitherefore, she is entitled to the $38,220.34.” In a post-trial memo-randa, Mildred asserts that under La.Civ. Code art. 229, she, as a mother in necessitous circumstances, can seek benefits from a decedent who has the financial resources to provide.

Louisiana Civil Code Article 229 provides:

Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain them needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to life’s basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.

While Mildred argues that the succession has a duty to provide for her support, she cites to no jurisprudence wherein La. Civ. Code art. 229 supports a cause of action for an ascendant against a succession, as opposed to the descendant personally. Here, it is not in dispute that Milton died without a valid will. Thus, according to La.Civ.Code art. 880,

In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to the following articles.

(Emphasis added.) Further, La.Civ.Code art. 229 is not encompassed in the articles following La.Civ.Code art. 880, or in any provision of the Civil Code regarding successions. Additionally, while Mildred argues that Milton “set aside funds” for her care, she cannot point to a valid testamentary disposition to that effect. Accordingly, it was not error for the trial court to find that Mildred did not have a cause of action against Milton’s succession for the return of the money.

IJDECREE

The judgment of the trial court is affirmed. All costs of these proceedings are assessed against defendants-appellants, Betty Jones and Mildred Elie.

AFFIRMED.

      . The trial court noted in its reasons for judgment that the three amounts "$11,842.76, $50,000.00, and $38,220.34, total $100,063.10, which is $61.92 less than the $100,125.02 originally withdrawn from the account.” It further noted that "Neither party has raised this discrepancy.”

      . The record indicates that although a plaintiff in the original petition, Schrita Jones does not join in this appeal.