author: AMY, Judge.

text:
    Cathy Lynn Porter BENNETT v. T. Barrett PORTER, et al.
    No. 10-1088.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      David R. Lestage, Hall, Lestage & Lan-dreneau, DeRidder, LA, for Defendants/Appellees, T. Barrett Porter, Judith Elizabeth Porter Weisgerber, Melinda Mae Porter Todd, David Barrett Porter.
    Donald W. Martin, Kingswood, TX, for Defendants/Appellees, Leon H. Gabro, Juanita Alta Porter Gabro.
    Jack L. Simms, Jr., Leesville, LA, for PlaintiffAppellant, Cathy Lynn Porter Bennett.
    Terry W. Lambright, Leesville, LA, for Defendants/Appellees, David Porter, Mon-ya Porter.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

|,The plaintiff filed suit seeking partition of property she asserts she inherited from her mother. Defendants filed an exception of no right of action, alleging that the property was the separate property of one of the defendants and that the plaintiff therefore had no interest in it. After a hearing on the exception, the trial court entered judgment in favor of the defendant and awarded attorney fees. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

This suit arises out of an intra-family dispute over the ownership of immovable property in Leesville, Louisiana. The record indicates that the plaintiff, Cathy Lynn Porter Bennett, is the daughter of T. Barrett Porter, defendant, and Dorothy Wam-pler Porter, deceased, and is the sister of defendants Judy Elizabeth Weisgerber, David Barrett Porter and Melinda Mae Todd. Defendants and cross-plaintiffs, Juanita Porter Gabro and Leon H. Gabro, are the plaintiffs aunt and uncle.

The plaintiff filed suit against her father, siblings, and aunt and uncle seeking partition of property she allegedly co-owned as a result of the death and succession of her mother. One of the various parcels of land for which the plaintiff sought partition is immovable property located in Leesville, Louisiana (the “town property”). T. Barrett filed an exception of no right of action, alleging that the plaintiff could not have inherited an interest in the town propei’ty from her mother because it was separate property belonging to himself and his sister, Juanita. Thus, he argued, the plaintiff has no interest in the town property and she had no right of action to pursue its partition.

A hearing on the sole issue of the ownership of the town property was held and evidence adduced at which T. Barrett alleged that his parents, John Alton Porter and |2EIsie lies Porter, had conveyed the property jointly to him and his sister, Juanita, via a document entitled “Sale of Immovable Property with Reservation of Vendor’s Lien,” and dated February 9, 1980. T. Barrett also alleged that this conveyance was a relative simulation. He asserted that the conveyance was a donation, not a sale, and that his parents intended to donate the property to Juanita and him.

After the hearing, the trial court issued written reasons and granted the exception of no right of action. In its written reasons, the trial court found that the conveyance was a simulation and not a sale and that therefore the plaintiff had no interest in the property. The plaintiff filed a motion for new trial on the basis of newly discovered evidence. After a hearing, the trial court denied the motion for new trial. The plaintiff appeals, asserting the following assignments of error:

1. The Trial Court erred in granting the Exception of No Right of Action, which in effect, allowed T. Barrett to attach the deed, to which he had been a party, and which was declared, by T. Barrett Porter, to be community property in the Succession of Dorothy Wampler Porter, No. 6712 on the docket of the 30th Judicial District court, and in that same proceeding, declared to be such by the Court, in the Judgment of Possession rendered therein.
2. The Trial Court erred in allowing parol evidence to be introduced by Exceptors to vary the non-ambiguous terms and language of the Credit Sale Deed, where the subject property was conveyed to T. Barrett Porter, et al.
3. The Trial Court erred in allowing T. Barrett Porter, who was a party to the original Credit Sale Deed, and who was a beneficiary thereunder, to attach that same deed, almost 30 years after its execution.
4. The Trial Court erred in considering the “Co-Ownership Agreement” in arriving at its decisions that the Credit Sale was a disguised donation.
5. The Trial Court erred in refusing to grant a new trial, on motion of Cathy Porter Bennett, even when Mover provided documentary evidence of payments being received by the vendors in the subject credit sale deed.
| s6. The Trial Court erred in ruling that the true intent of the vendors in the Credit Sale Deed was to donate the property to their children, T. Barrett Porter and Juanita Porter Gab-ro.
7. The Trial Court erred in sustaining, or granting, defendant’s Exception of No Right of Action, in that the ruling was contrary to the law and evidence and was clearly wrong.
8. The Trial Court erred in finding that even though rent was paid to Vendors, the instrument was a disguised donation.

Discussion

Evidence

The plaintiffs first assignments of error address the evidence submitted in support of the exception. We discuss these preliminary matters before turning to consider the exception.

Parol Evidence

In her first assignment of error, the plaintiff asserts that the trial court erred in admitting parol evidence in order to prove that the 1980 conveyance document was a simulation. At the hearing, T. Barrett and Juanita testified about their impressions regarding the nature of the disputed conveyance. They also testified, as to whether they regarded the conveyance as separate property or community property.

Louisiana Civil Code Article 1848 addresses the admissibility of parol evidence with regard to writings and states that:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to 14prove that the written act was modified by a subsequent and valid oral agreement.

(Emphasis added.) The clear language of the statute allows the admission of parol evidence, in the interest of justice, in order to prove a simulation. See also Revision Comment (c), which provides that testimonial or other evidence may be admitted to prove either an absolute or relative simulation. The plaintiff cites numerous cases in her brief which support the inadmissibility of parol evidence to prove a simulation. However, that jurisprudence precedes the enactment of Article 1848 in 1984. Since that time, Article 1848 has expressly provided for the admission of such evidence in this situation. See, e.g., Sonnier v. Conner, 43,911 (La.App. 2 Cir. 12/3/08), 998 So.2d 344, writ denied, 09-309 (La.4/3/09), 6 So.3d 773. Thus, the trial court did not abuse its discretion in admitting evidence on the issue of whether the disputed conveyance was a simulation.

This assignment of error is without merit.

Relevancy of Evidence

The plaintiff alleges that the trial court erroneously admitted an irrelevant document entitled “Co-Ownership Agreement” into evidence.

Louisiana Code of Evidence Article 402 provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.” Relevant evidence is evidence “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La.Code Evid. art. 401. Whether evidence is deemed relevant is within the discretion lBof the trial court, and a relevancy determination will not be disturbed on appeal absent a clear abuse of discretion. Mapp Constr., LLC v. Southgate Penthouses, LLC, 09-850 (La. App. 1 Cir. 10/23/09), 29 So.3d 548, unit denied, 09-2743 (La.2/26/10), 28 So.3d 275. “The party alleging prejudice by the evi-dentiary ruling of the trial court bears the burden of so proving.” Id. at 561.

The trial court noted in its reasons for judgment that the co-ownership agreement was executed on the same date as the conveyance and that it was filed, concurrently with the sale document, with the Clerk of Court. Given the close relationship between the two documents, we find that the trial court did not abuse its discretion in considering the co-ownership agreement when determining the intent of the parties with regard to the disputed transaction.

This assignment of error is without merit.

Judicial Confession

The plaintiff argues that the trial court erred in refusing to consider the listing of the town property in the Succession of Dorothy Wampler Porter as a judicial confession. The plaintiff submitted the entire file of the succession into evidence. IfiThe judgment of possession therein lists the town property as community property belonging to Mrs. Porter. At trial, T. Barrett testified that he included the town property in the succession so that there would not be “any trouble” within the family. T. Barrett reiterated that he considered the town property to be the separate property of himself and Juanita.

Louisiana Civil Code Article 1853 addresses judicial confessions, stating:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

A judicial confession is binding on the court and must be applied in the case in which it is made. Picard v. Vermilion Parish Sch. Bd., 00-1222 (La.App. 3 Cir. 4/4/01), 783 So.2d 590, writ denied, 01-1346 (La.6/22/01), 794 So.2d 794. However, “an earlier judicial admission does not bind a party in a subsequent proceeding unless ‘the other party claiming the benefit of judicial estoppel resulting therefrom has been deceived by such judicial confession and has relied or acted thereon to his prejudice.’ ” Id. at 598, quoting Succession of Turner, 235 La. 206, 103 So.2d 91, 93 (1958). Using the information from another proceeding to pursue a cause of action is not detrimental reliance. Id. Further, a judicial admission in another proceeding is considered an extrajudicial admission and is admissible into evidence but does not create a conclusive presumption or operate as estoppel against the party making them, absent a showing of deception or prejudice. Marchand v. Asbestos Defendants, 10-476 (La.App. 4 Cir. 11/10/10), 52 So.3d 196.

In this case, the inclusion of the town property as community property was done in a prior proceeding — the Succession of Dorothy Wampler Porter — not the case 17then pending before the trial court. While the trial court was permitted to view the inclusion of the town property in the Succession of Dorothy Wampler Porter as an extrajudicial admission of the alleged community nature of the property, it was also entitled to reject the plaintiffs argument that the inclusion constituted a judicial confession. Instead, the trial court could have credited T. Barrett’s explanation that he included the town property in the succession in order to avert any trouble with the family. We find that the trial court did not err in considering the inclusion of the town property as an extrajudicial admission and not a binding judicial admission.

This assignment of error is without merit.

Exception of No Right of Action

As explained above, the exception of no right of action in this case turns on the question of whether John Alton Porter and Elsie lies Porter conveyed the town property to their children by a sale or by a simulation. This determination results in the property being designated as either T. Barrett’s separate property or as the community property of him and his wife. Only in the event of its designation as community property would the plaintiff be able to assert a right of action to partition the property allegedly inherited from her mother, T. Barrett’s deceased wife.

In her appeal of the granting of the exception of no right of action, the plaintiffs assignments essentially argue that the trial court’s findings were contrary to the law and evidence.

The peremptory exception of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. La.Code Civ.P. art. 927(A)(6); La. State Bar Ass’n v. Carr & Assoc., LLC, 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292. To prevail on an exception |sof no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the lawsuit or the legal capacity to proceed. Ridgedell v. Succession of Kuyrkendall, 98-1224 (LaApp. 1 Cir. 5/19/99), 740 So.2d 173.

Because it involves a question of law, the standard of review of the trial court’s granting of the exception of no right of action is de novo review. Hebert v. Shelton, 08-1275 (LaApp. 3 Cir. 6/3/09), 11 So.3d 1197. “Evidence supporting or controverting an objection of no right of action is admissible[.]” La. State Bar Ass’n, 15 So.3d at 165. Since evidence was admitted, we will review the entire record to determine whether the plaintiff has a right of action. Id.

We note, however, that the plaintiffs assignments of error address the factual determinations underlying the legal issue of whether she has a right of action. An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In granting the exception of no right of action, the trial court explained:

John Alton Porter and Elise [sic] Porter executed a document titled “Sale of Immovable Property with Reservation of Vendor’s Lien (hereinafter referred to as the deed) on February 9, 1980, conveying the property referred to as the “Town Property” to T. Barrett Porter and Juanita Porter Gabro, their son and daughter. The price stated in the deed was $96,000 represented by 32 promissory notes, 16 to be paid by T. Barrett Porter and 16 to be paid by Juanita Porter Gabro. This document was filed with the Vernon Parish Clerk of court on February-12, 1980. Filed that same day was a document entitled “Co-Ownership Agreement,” outlining the administration of co-ownership of the Town Property between T. Barrett Porter and Juanita Porter Gabro. Both documents are signed by T. Barrett and Juanita, but neither document is signed by their spouses, Dorothy Wampler Porter and Leon Gabro.
The record reflects that some of the promissory notes referenced in the deed were marked paid and tendered to Juanita; she testified that | ¡¡nothing of value was given to satisfy these notes. T. Barrett testified he never paid any of these notes. The testimony was that the only possible consideration for the sale would be the continued receipt of rent tenants paid to the Porters for using the property.
[T]he Court concludes that it is more probable than not that the transaction titled “Sale of Immovable Property With Reservation of Vendor’s Lien” was a donation from parents to children, in the form of a donation disguised as a sale. Primary in this conclusion is there was no valuable consideration paid by the children to the parents in exchange for the property. Both Juanita and T. Barrett testified that they have no memory of giving any money or thing of value to their parents in exchange for the Town Property. The record shows no evidence that the parents received any money or thing of value from the children in exchange for the property, though it does show several promissory notes were forgiven.... Since there was no consideration paid and the parents forgave several of the promissory notes in exchange for no payment on said notes, the Court finds the transfer to be a donation in disguise[.]

Simulation

A simulation, as was determined here by the trial court, is a feigned or pretended sale of immovable property clothed in the formalities of a valid sale. La.Civ.Code art. 2025; Sonnier, 998 So.2d 344. A simulation may be either absolute or relative. An absolute simulation is one where the parties intend that the contract shall produce no effects between them; an absolute simulation produces no effects between the parties. La.Civ.Code art. 2026. According to La.Civ.Code art. 2027, “[a] simulation is relative when the parties intend that their contract shall produce effects between them though different from those recited in their contract. A relative simulation produces between the parties the effects they intended if all requirements for those effects have been met.”

The party alleging • that the purported sale was a simulation bears the burden of proving with reasonable certainty that the sale was simulated. Thompson v. Woods, |10525 So.2d 174 (La.App. 3 Cir. 1988). If any consideration is given for the conveyance, the sale is not a simulation. Id.

The plaintiff first questions the factual determination that John Alton Porter and Elsie lies Porter intended to donate the town property to T. Barrett and Juanita. The plaintiff bases this argument, in part, upon the allegation that “rent was paid” to John Alton Porter and Elsie lies Porter and that the trial court erred in finding otherwise.

The copy of the conveyance document entered into evidence, as reflected by the trial court’s findings, conveyed the town property to T. Barrett and Juanita and recites a price of $96,000 payable in 32 promissory notes. However, T. Barrett testified that he felt that his parents had “given” the property to him and his sister.

Both T. Barrett and Juanita testified that they paid nothing of value for the town property. Juanita testified that she never paid the promissory notes, but that she received several of the notes marked “paid” from her parents. Leon Gabro, Juanita’s husband, testified that he never gave Juanita’s parents anything for the town property.

Both Juanita and T. Barrett testified that T. Barrett gave his parents all or a portion of the rental income from the town property. Juanita did not characterize the rental income as a payment and T. Barrett testified that he considered the rental income a gift to his parents and not payment. Further, T. Barrett kept a portion of the rental income for himself.

In sum, the crucial factors in a determination of whether a transaction is a sale or a simulated donation are the intent of the parties and whether consideration was given. See La.Civ.Code art. 2027; Thompson, 525 So.2d 174. The testimony, as well as related physical evidence, reveals support for the trial court’s determinations that In John Alton Porter and Elsie lies Porter intended to donate the town property to T. Barrett and Juanita.

Certainly, the payment of rents can constitute the consideration for a sale. See Phillips v. Nereaux, 361 So.2d 228 (La. App. 1 Cir.1978). However, in this case, the testimony indicates that the vendors/donors did not continue to collect the rents themselves. Further, T. Barrett’s testimony supported the view that delivery of the rental income resulted from personal and filial obligations. The trial court could have accepted this testimony. A portion of the trial court’s finding in this regard stemmed from credibility determinations which are owed great deference on appeal. See Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.1/16/08), 974 So.2d 635 (on rehearing). Accordingly, its determination was not manifestly erroneous.

The plaintiffs arguments in this regard are without merit.

Community or Separate Property

After the trial court determined that the 1980 conveyance was a simulation and not a sale, the trial court had to determine whether the plaintiff had an interest in the town property that would allow her to pursue the partition action. The plaintiffs petition indicated only that her interest stemmed from the inheritance of the property from her mother. The defendants argue that, if T. Barrett’s interest in the town property was community property, upon the death of Mrs. Porter, her community share of the property would have passed to her heirs, including the plaintiff. However, they argue, if the interest was T. Barrett’s separate property, Mrs. Porter would have no interest in the town property, and therefore the plaintiff could not inherit any interest in it. Thus, in order to grant the exception of no right of action, the trial court would have had to find that donation was separate and not community.

112The classification of property is fixed as separate or community at the time of its acquisition. Peters v. Haley, 99-866 (La.App. 1 Cir. 5/12/00), 762 So.2d 695, writ denied, 00-1513 (La.6/30/00), 766 So.2d 547. The trial court’s determination of whether property is community or separate is a factual finding and will not be disturbed on appeal absent manifest error. Id.

Property possessed during a marriage is presumed to be community; however, either spouse may rebut the presumption. Corkem v. Corkem, 05-2297 (La.App. 1 Cir. 11/3/06), 950 So.2d 780, writ denied, 06-2844 (La.2/2/07), 948 So.2d 1083. Louisiana Civil Code Article 2341 addresses separate property. It includes “property acquired by a spouse by inheritance or donation to him individually[.]” Id. The identity of the donee or donees is controlled by the donor. Purcell v. Purcell, 29,663 (La.App. 2 Cir. 6/23/97), 697 So.2d 728. “When the donor is deceased, the intention of the donor is to be inferred from the relation of the parties and from all the facts and circumstances of the case.” Id. at 734. The trial court may look, in the absence of evidence of intent, to the nature of the property, including the manner in which the gift was used, in deciding whether the property is separate or community. Id.

In this case, the testimony indicated that T. Barrett considered the property to be the separate property of himself and Juanita. He testified that the property was given to him and his sister. However, at his deposition, which was entered into evidence, T. Barrett testified that the property was intended to be a donation to himself and his wife and to Juanita and her husband. Juanita testified that she understood the property to be community property; she stated that, when she signed the conveyance documents, the attorney told, her that half of her interest would belong to her husband.

|1SA copy of the 1980 conveyance document was entered into evidence. The conveyance lists, as vendees/grantees, “T. BARRETT PORTER, husband of Dorothy Porter” and “JUANITA ALTA GABRO, born Porter, wife of Leon H. Gabro.” The conveyance goes on to state that the vend-ees/donees “accepting and purchasing as their separate property within their separate credit and acknowledging possession thereof!.]” The trial court, in its reasons for judgment, also noted that the conveyance states, “[s]ellers do not look to the community of acquets and gains, if any, existing between the Purchasers and their spouses, for the satisfaction of the indebtedness incurred herein, but rather to the separate properties of the Purchasers.”

Testimony reflected that only T. Barrett and Juanita signed the conveyance document, the co-ownership agreement, and the subsequent buy-sell agreement.

The trial court held that, based on the language of the deed and the accompanying co-ownership agreement, John Alton Porter and Elsie lies Porter intended the donation to be the separate property of T. Barrett and Juanita. In its reasons for judgment, the trial court stated, “[t]he language in the deed as well as the co-ownership agreement clearly shows that both parties contemplated this as being separate property. Both documents, executed the same day and filed together with the Clerk of Court, refer to the property as separate.” The trial court re-iterated this reasoning in its denial of the motion for new trial, stating “[w]hen you consider the deed with the language in the deed, with the language with the affidavit of management of the property, you take those documents together, it’s clearly intended to be, clearly, separate property in my opinion.”

As explained above, the identity of the donee or donees is controlled by the donor. Purcell, 697 So.2d 728. A review of the conveyance document reflects that |14the donees were T. Barrett and Juanita. Although the testimony of T. Barrett at his deposition and Juanita at trial could support a contrary finding, the trial court may choose to reject all of a witness’s testimony or to accept part or parts of his or her testimony and reject any other part or parts thereof. See Ladner v. Gov’t Employees Ins. Co., 08-328 (La.App. 4 Cir. 10/8/08), 992 So.2d 1098. Giving proper deference to the factual findings of the trial court, and after reviewing the record, including the testimony of witnesses and the exhibits submitted into evidence, we find that the trial court was not manifestly erroneous in determining that the town property was separate property and not community property.

The plaintiffs argument in this regard is without merit.

New Trial

Finally, the plaintiff asserts that the trial court erred in denying her motion for a new trial based on the discovery of new evidence. After the trial court sustained the exception of no right of action, the plaintiff filed a motion for new trial, alleging that she had located copies of John Alton Porter and Elsie lies Porter’s tax returns. She alleged that those tax returns listed payments on the promissory notes as income and that the trial court should reopen the issue of whether consideration was given for the purported sale. In denying the motion, the trial court stated:

Here, the newly discovered evidence is income tax returns filed by the vendors/grantors prior to their death claiming income from the payment of notes representing the purchase price of the property. Although this perhaps could have been discovered prior to trial, the fact is they are deceased and the Court considers the direct testimony of T. Barrett Porter and Juanita Gabro and concludes that it is more probable than not that the newly discovered evidence would not make a difference in the result of trial.

Louisiana Code of Civil Procedure Article 1971 governs the motion for new trial, stating:

l1SA new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.

The peremptory grounds for granting a new trial include the discovery of “evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La. Code Civ.P. art. 1972(2). At its discretion, the trial court may grant a new trial if good grounds exist, except as otherwise provided by law. La.Code Civ.P. art. 1973. The standard of review for a ruling on a motion for new trial is whether the trial court abused its discretion. Campbell v. Tork, Inc., 03-1341 (La.2/20/04), 870 So.2d 968.

In order to grant a motion for new trial on the basis of newly-discovered evidence, the movant must prove that the evidence was discovered after the trial; that the new evidence is not cumulative; that the new evidence would tend to change the result of the case; and that the new evidence could not have been discovered, with due diligence before the trial was completed. Florreich v. Entergy Corp., 09-414 (La.App. 5 Cir. 2/23/10), 32 So.3d 965, writ denied, 10-1057 (La.9/3/10), 44 So.3d 691.

In this case, the “newly discovered evidence” submitted along with the plaintiffs motion for new trial consists of portions of tax returns filed by John Alton Porter and Elsie lies Porter for the tax year 1983 and for tax years 1985 through 1991. The copies filed into evidence reveal interest income listed as, for example, “Installment Sale — T B Porter & Juanita.” In its written reasons for judgment, the trial court’s basis for the denial of the motion for new trial is that the newly-discovered evidence would not change the outcome of the case.

| lfiThe witness testimony in this case was consistent. T. Barrett, Juanita, and Leon Gabro all testified that they paid nothing to the vendors/grantors for the town property. This is noteworthy because, as reflected by the arguments of counsel, Juanita and Leon Gabro, defendants and cross-plaintiffs, opposed T. Barrett and the other defendant’s efforts to have the town property declared a simulation and separate property. The trial court was the finder of fact in this case and was entitled to weigh the credibility of witnesses and the evidence. We do not find that the trial court abused its discretion in denying the motion for new trial.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the trial court’s granting of the exception of no right of action and its denial of the motion for new trial are affirmed. All costs of these proceedings are assessed to the plaintiff, Cathy Lynn Porter Barrett.

AFFIRMED.

      . The plaintiff asserts in her second assignment that the trial court erred in allowing T. Barrett Porter to “attach” the 1980 conveyance "almost thirty years” after its execution. Although the plaintiff refers to her second assignment of error in one of the headings in her brief, the plaintiff has failed to brief the issue of the document's age and this assignment is therefore deemed abandoned. Uniform Rules of Court — Courts of Appeal, Rule 2-12.4.

      . Louisiana Civil Code Article 1848 became effective January 1, 1985.

      . In its reasons for judgment, the trial court stated:
      The language in the deed as well as the co-ownership agreement clearly shows that both parties contemplated this as being separate property. Both documents, executed the same day and filed together with the Clerk of Court, refer to the property as separate.... The deed and the co-ownership agreement reinforce the separate nature of the property as intended by the donor and contemplated by the donees. This overcomes the presumption of community and establishes the separateness of the property under Civil Code article 2341.
      The fact that neither spouse signed the deed or the co-ownership agreement has no bearing on the finding of the property as separate.

      . The plaintiff also asserts that T. Barrett will be unable to reopen the Succession of Dorothy Wampler Porter to remove the town property from the judgment therein. While La. Code Civ.P. art. 3393 allows a succession to be reopened and the judgment therein amended "if other property of the succession is discovered or for any other proper cause,” this appeal is not the proper vehicle for a determination of whether that succession can be reopened.


source: Caselaw Access Project

license: Public Domain

text:
    Jodi SYLVESTER v. Jo Nell FONTENOT.
    No. 10-1115.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.

      C. Brent Coreil, Ville Platte, LA, for Defendant/Appellee, Jo Nell Fontenot.
    J. Wendel Fusilier, Jacob B. Fusilier, Ville Platte, LA, for Plaintiff/Appellant: Jodi Sylvester.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

b The plaintiff filed suit seeking the return or division of funds deposited in an investment account and seeking to probate a copy of a purported will naming her as the sole legatee. The defendant alleged that the will was invalid in form and that the funds in the account were at least partially hers. The trial court rendered judgment, finding that the will was invalid in form, denying the attempted probate, and ordering that the funds in the account be divided equally between the parties. The plaintiff appeals. For the following reasons, we affirm the judgment of the trial court.

Factual and Procedural Background

The parties in this case are Jodi Sylvester, the plaintiff, and her mother, Jo Nell Fontenot, the defendant. This suit arises out of a dispute between the parties regarding the ownership of funds in an investment account and over the disposition of the estate of the decedent, Rena Guillo-ry Fontenot Ardoin. The decedent is the defendant’s mother and the plaintiffs grandmother. The plaintiff is seeking the return or division of funds in an Edward Jones investment account that she claims were given by the decedent to the defendant as a donation to her. The plaintiff contends that, because she was still a minor at the time of the donation, the defendant accepted the funds on her behalf. The defendant alleges that at least part of the funds in the account are her separate funds or, in the alternative, that it is a joint account and should be divided between the parties.

The plaintiff also seeks to probate a copy of the decedent’s purported will, which leaves the decedent’s property to the plaintiff. The defendant argues that the will is invalid in form because it is not signed on every page and therefore should not be probated. She also argues that, even if the will is valid in form, because the |2original cannot be located, there is a presumption that the decedent intended to revoke the will and the plaintiff has failed to overcome that presumption.

A trial was held and evidence adduced on May 12, 2010. The plaintiff submitted into evidence a copy of the Last Will and Testament of Rena Guillory [Fontenot] Ar-doin, dated September 20,1991, which designated the plaintiff as universal legatee and designated the defendant as the universal legatee in the case of a lapse of the legacy to the plaintiff. The testimony of witnesses reflected that the copy of the will submitted into evidence contained obvious insufficiencies. Notably, the majority of the copied pages did not include the decedent’s signature.

Glenn Marcantel, an attorney, testified that in 1991, he prepared a notarial testament for the decedent. Mr. Marcantel and two other witnesses, Shawana Fonte-not and Wendy Lafleur, identified their signatures as witnesses to the will and testified that they did not specifically remember the decedent/testatrix signing the testament. However, they explained that it was the procedure in their office to have testators sign every page.

The plaintiff testified that, after the decedent passed away, she searched the decedent’s “personal files,” which contained bank statements, copies of two inter vivos Acts of Donation to the plaintiff, and the title to the decedent’s mausoleum. According to the plaintiff, she located two copies of the will, but she did not locate the original nor did she know what happened to it.

The plaintiff admitted that, if the will were not upheld, she would not receive anything from the decedent’s estate. She also admitted that there was animosity between her and her mother, the defendant. The plaintiff made several allegations of misconduct on the part of the defendant, in particular that the decedent had obtained ^several Certificates of Deposit intended for the plaintiff, and that the defendant had cashed some of them without the plaintiffs knowledge and converted the funds.

The defendant testified as to her awareness of her mother’s will and that, at some point, she had seen the original will in the filing cabinet at the decedent’s residence. According to the defendant’s testimony, the decedent became worried about the plaintiff having any control over the decedent’s property, due to the plaintiffs alleged changes in behavior. The defendant testified that, at the decedent’s request, she consulted an attorney about two acts of donation to the plaintiff that were causing the decedent’s concern and was advised that they were invalid because they attempted to transfer property to a minor and that there was no valid acceptance by the minor’s guardian.

Several witnesses testified about whether the decedent revoked her will. The plaintiff testified that the decedent never told her that she was going to revoke her will and, in her opinion, the decedent would be “destroyed” if she knew that the plaintiff and her children were not being taken care of. However, according to the defendant, the decedent told her that she was not worried about the will because the will “wasn’t any good.” The defendant claimed that the decedent thought the will was invalid because she was under the impression that she had to make a bequest to the defendant.

|4Theresa Tanya Thompson Guillory, the decedent’s niece and goddaughter, testified that, at one time, she had a copy of the will According to her testimony, although the decedent did not approve of the plaintiffs lifestyle, the decedent loved the plaintiff “very much” and wanted to make sure that the plaintiff was “taken care of.”

Angela Fusilier, the decedent’s niece and the plaintiffs godmother, testified that the decedent kept her will in a filing cabinet with her other important papers. According to Ms. Fusilier, the decedent was “concerned” about the plaintiff but that she wanted to make sure that both the plaintiff and the defendant were provided for.

The decedent’s sister, Nazel Guillory, testified that the decedent “loved [the plaintiff] very much,” and that the decedent intended for the plaintiff to inherit all of her property. Ms. Guillory also testified that she believed the decedent would have told her if she was going to disinherit the plaintiff and that the decedent never told her that she had revoked the will.

There was also testimony from several witnesses about the disputed investment account. The plaintiff testified that she did not learn that there was an Edward Jones account in her name until her first year of college. The plaintiff alleged that the funds in the account came from Certificates of Deposit that the decedent obtained on the plaintiffs behalf. The plaintiff submitted into evidence copies of three Certificates of Deposit from Guaranty Bank, all of which had been redeemed in 2001. The plaintiff further asserted that she had never received any of the monies from either the Edward Jones account or any of the Certificates of Deposit.

John Mayeux, an advisor at Edward Jones, testified that, in 2001, the defendant transferred funds from a Certificate of Deposit to an investment account. Mr. |sMayeux believed that the Certificate of Deposit originated from Citizens Bank. He testified that the account was in both the plaintiffs and the defendant’s names. The plaintiff did not introduce any physical evidence regarding the initial deposit into the Edward Jones account other than a statement, reflecting that the account contained two certificates of deposit, investments in a mutual fund, and a money market account. According to Mr. Mayeux’s testimony, the defendant told him that the money came from her mother (the decedent) and that it was intended for the plaintiff. No testimony was elicited with regard to whether there were subsequent deposits to or withdrawals from the account.

The defendant testified that, in 2001, she redeemed a Certificate of Deposit from Citizens Bank and that she gave those funds to the plaintiff to pay off some of her debts. She testified that the funds in the Edward Jones account came partially from money the decedent had intended for the plaintiffs college tuition and partially from the defendant’s own money. She claimed that she had put the account in both of their names in case of an emergency. The defendant did not testify as to what percentage of the account was allegedly her portion, nor the source of the alleged separate funds that she deposited into the account.

The trial court found that the will was invalid in form and denied the attempt to probate the will. The trial court further found that the funds in the Edward Jones account were a joint deposit intended as a “donation to both of the named parties[,]” and ordered that the funds be divided equally between the parties.

The plaintiff appeals, presenting the following assignments of error:

1. The Trial Court committed manifest error when it failed to probate the will presented to it.
|fi2. The Trial Court committed manifest error when it held that the funds in the Edward Jones account were a “joint donation.”
3. The Trial Court committed manifest error when it failed to apply proper Louisiana law and divided the funds in the Edward Jones account between the parties equally.
4. The Trial Court committed manifest error when it failed to address ownership of the Certificates of Deposit.

Discussion

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish School Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. If a trial court’s findings are reasonable based on the entire record and evidence, an appellate court may not reverse those findings even if it is convinced that it would have weighed the evidence differently. Id. “The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between respective courts.” Edwards v. Daugherty, 98-635, p. 4 (La.App. 3 Cir. 6/9/99), 736 So.2d 345, 348, writ denied, 99-2034 (La.9/17/99), 747 So.2d 568.

Validity of the Will

The plaintiff asserts, in her first assignment of error, that the trial court committed manifest error when it failed to probate the will presented to it. The 17Louisiana Civil Code provides for two forms of testaments: olographic and notarial. La.Civ.Code art. 1574. A notarial testament:

shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this _day of_,_”

La.Civ.Code art. 1577. According to La. Civ.Code art. 1573, “[t]he formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” In order to rebut the presumption in favor of the validity of testaments in general, there must be exceptionally compelling evidence of the proof of the nonobservance of formalities. Succession of Daigle, 601 So.2d 10 (La. App. 3 Cir.1992). Further, the factual findings of the trial court in will contest cases are accorded great weight and should not be disturbed absent a finding of manifest error. Id.

In addition to the explicit requirements of La.Civ.Code art. 1577(1), Louisiana courts have held that the failure to sign the separate pages of the will renders the will an absolute nullity. See, e.g., In re Hendricks, 08-1914 (La.App. 1 Cir. 9/29/09), 28 So.3d 1057. There is a limited exception where the testator “substantially complied” with the statutory requirements, but failed to sign a page which did not contain |sdispositive provisions. Succession of Guezuraga, 512 So.2d 366 (La.1987); In re Succession of Simonson, 07-742 (La.App. 5 Cir. 3/11/08), 982 So.2d 143.

However, in this case, the trial court’s written reasons reveal notable deviations from the codal requirements. The trial court stated:

In Exhibit 4, the copy of the will executed by the decedent/testatrix[,] the signature lines on each page are not reflective of the signature which is alleged to have been made thereon. If the original will had been available for presentation and petition for probate, the signature of the testatrix would have to be apparent on each page of the testament along with the signature following the attestation clause. In the copy, which is submitted for probatef,] the signature of the testatrix on each and every page, is not apparent. Therefore, this Court cannot allow a copy of a testament to be probated under a lesser standard that is required of an original.

In light of these findings, it is apparent that the facts in this case are distinguishable from those in Guezuraga, 512 So.2d 866. In that case, the testatrix signed all of the pages containing dispositive portions and the beginning of the attestation clause but not the page containing the end of the attestation clause. The supreme court held that because the testatrix had signed on all of the pages containing dispositive provisions and the page containing the beginning of the attestation clause, the will was valid.

Similarly, in Simonson, 982 So.2d 143, the testator failed to sign one page of a seven-page testament. The trial court found that the will was invalid in form and therefore null. On appeal, the fifth circuit reversed, holding that, because there were no allegations of fraud and because there were no “dispositive, appointive, or directive provision[s]” on the unsigned page, only the unsigned page was invalid and that the will should have been probated with the exclusion of the unsigned page. Id. at 146.

A review of the record, including the testimony of witnesses, indicates that only a copy of the will, not the original, was submitted into evidence. Reference to [flthat supports the trial court’s observation that in “the copy of the will executed by the decedent/testatrixf,] the signature lines on each page are not reflective of the signature which is alleged to have been made thereon.” Further, the dispositive provisions are contained on page two of the will, which is unsigned. Therefore, in light of the failure of the copy of the will to comply with the statutory requirements, the trial court was not manifestly erroneous in finding the will to be invalid and refusing to probate the copy of the will.

This assignment is without merit. Division of the Edward Jones Account

The plaintiffs second and third assignments of error assert that the trial court erroneously held that the funds in the Edward Jones account were a joint deposit or joint donation, and that the trial court erroneously divided the funds equally between the parties. The trial court gave no reasons for its determination that the funds in the Edward Jones account were a “joint deposit” intended as a “donation to both” the plaintiff and the defendant.

Louisiana Civil Code Article 797 provides that “[ojwnership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.” See also Hill v. Hill, 08-197 (La.App. 5 Cir. 5/27/08), 984 So.2d 229, writ denied, 08-1714 (La.10/24/08) 992 So.2d 1025. In Sanders v. Sanders, 222 La. 238, 62 So.2d 284 (1952), the defendant appealed the trial court’s judgment finding that the balance of a joint bank account belonged solely to a deceased joint account holder. The supreme court, quoting 7 Am.Jur. Banks § 42, stated:

Bank accounts may be established in the name of two or more persons. One of the important questions which arises in such cases is as 110to the ownership of the funds. It is obvious that the depositors may own the funds in common.

Sanders, 62 So.2d at 289. As can be ascertained from the final sentence of Article 797, there is a presumption that a joint bank account is owned in equal shares by each depositor. See also Cooper v. Hibernia Nat’l Bank, 405 So.2d 540 (La.App. 4 Cir.1981). That presumption can be rebutted by appropriate evidence. Succession of Hodge, 424 So.2d 363 (La.App. 2 Cir. 1982). However, the deposit of funds into a joint account does not by itself effect a transfer of the ownership of those funds. Succession of Fralick v. Sec’y of Dept, of Revenue, 529 So.2d 159 (La.App. 3 Cir. 1988).

In Sanders, 222 La. 233, 62 So.2d 284, the only evidence offered was that a joint bank account existed, that it contained certain funds, and that the purpose of the funds was for the payment of household expenses of one of the joint account holders. The supreme court noted that, from a review of the record, they were unable to determine “who made the deposits to the account, when they were made, from what sources the funds so deposited came, or who made the withdrawals, and therefore we cannot determine the respective interests in the bank account.” Id. at 289. The supreme court then remanded the case so that ownership of the account could be determined.

In Carter v. Carter, 538 So.2d 1121(La.App. 5 Cir.1989), the fifth circuit addressed the ownership of funds that a father had placed in a bank account in his name and in his minor daughter’s name. The father testified at trial that the money belonged to him, that he was the only person who ever deposited or withdrew money from the account, and that he put the account in his daughter’s name for tax purposes. He further testified that the funds in this account and in others bearing his other children’s names were intended to pay for his children’s education and any other h future needs. The fifth circuit found that the daughter had put on no evidence that the funds in the account were hers or that the father had properly donated the funds to her. Therefore, the fifth circuit stated that it was “compelled to conclude that the funds belonged to and were always owned by [the father].” Id. at 1123.

In this case, the testimony reflected that the account was in both the plaintiffs and the defendant’s names. Further, the testimony was that the funds in the bank account came from either the decedent’s gifts to the plaintiff and/or from funds that the defendant put in the bank account. Although the plaintiff asserted that the entirety of the funds came from a Certificate of Deposit that was a donation to her from the decedent, she offered no evidence that the defendant did not deposit separate funds into the account or that, if there were separate funds in the account, the defendant donated those funds to her.

This case is distinguishable from Sanders, 222 La. 233, 62 So.2d 284, because, in this case, there was evidence presented regarding who made deposits to the account, when they were made, and, to some extent, the source of the funds. Further, here, as in Carter, 538 So.2d 1121, the defendant testified that the money in the account was partially hers and that the account was intended to be used for the plaintiffs college education. However, the defendant did not present any evidence with regard to the amount of her separate funds that were contained within the account.

Given the evidence presented in this case, the trial court could have determined that the defendant’s testimony was more credible than the plaintiffs with regard to the funds in the Edward Jones account. “When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the factfinder is 112cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.1/16/08), 974 So.2d 635, 654 (on rehearing). Therefore, we do not find that the plaintiff overcame the presumption that the funds in a joint bank account belong to both of the named account holders. Nor does the record indicate that the trial court was manifestly erroneous in determining that the funds in the account were jointly owned. According to La.Civ.Code art. 797, in the absence of contrary law or juridical act, the funds belong in equal shares to the owners in indivisión. The plaintiff argued that the funds in the account belonged solely to her. The defendant testified that part of the funds in the account were her separate funds, but she offered no evidence with regard to the percentage of the account that was her separate property. Once the trial court determined that the funds in the joint account belonged to both the plaintiff and the defendant, we cannot say that the trial court committed manifest error in dividing the shares equally. Thus, we find no error in the trial court’s division of the shares equally.

These assignments of error are without merit.

Ownership of the Certificates of Deposit The plaintiffs fourth assignment of error argues that the trial court failed to rule on the ownership of the Certificates of Deposit, copies of which were submitted into evidence.

Louisiana Code of Civil Procedure Article 862 states:

Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

11sThe statute is intended to allow courts to render substantive justice on the basis of facts pleaded and to refuse to permit a denial of substantive rights due to technical defects of language or characterization of the case. Melancon Equip., Inc. v. Nat’l Rental Co., Ltd., 07-1008 (LaApp. 3 Cir. 2/27/08), 978 So.2d 1053. As long as facts constituting the claim are alleged, a party is entitled to any relief to which he is entitled under the pleadings and the evidence. Id. However, La.Civ.Code art. 862 is not “intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it. Otherwise, a judgment beyond the pleadings is a nullity.” Domingue v. Bo-din, 08-62, p. 3 (LaApp. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted). Further, due process requires adequate notice to the parties of the matters that will be adjudicated. Glover v. Med. Ctr. of Baton Rouge, 97-1710 (LaApp. 1 Cir. 6/29/98), 713 So.2d 1261.

In this case, a review of the record, including the pleadings, testimony and evidence presented at trial, and the pre- and post-trial briefs of the parties, contains only tangential references to three Certificates of Deposit. The majority of the references to the Certificates of Deposit are with regard to the origin of the funds deposited in the Edward Jones account.

Mr. Mayeux testified that the funds in that account came from a Certificate of Deposit. According to the plaintiff, the decedent would occasionally purchase Certificates of Deposit for the plaintiff and put them in the plaintiffs and the defendant’s names. She testified that when one of the Certificates of Deposit would mature, it would be redeemed and put into another Certificate of Deposit. Additionally, she testified that one of the Certificates of Deposit eventually became ]uthe investment account. The defendant testified that she redeemed one Certificate of Deposit, in the amount of fifty thousand dollars, and gave the proceeds to the plaintiff. The defendant further testified that the money in the investment account came from Guaranty Bank.

Neither party, either at trial or in its pre- or posttrial briefs, argued that there should be a determination of the ownership of the Certificates of Deposit. In her appellate brief, the defendant professes “total eonfus[ion]” regarding the Certificates of Deposit and alleges that the Certificates of Deposit submitted into evidence “were not an issue in this litigation.” Our review of the record indicates that the ownership of the Certificates of Deposit was not an issue presented to the court, outside of the argument that the funds may have been placed into the Edward Jones account. Therefore, we find no error in the trial court’s omission of the specific issue of ownership of any of the Certificates of Deposit from its ruling. Furthermore, we note that even though the plaintiff seeks a determination as to ownership of these Certificates, the photocopies of those certificates indicate that they are dated July 1, 2000 through May 30, 2001. No testimony was presented as to the present state of the Certificates, if any.

This assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of these proceedings are assessed to the appellant, Jodi Sylvester.

AFFIRMED.

      . The defendant's given name is spelled "Jo-nell,” "JoNell” and "Jo Nell” in the record. We adopt the spelling from the defendant’s appellate brief.

      . The trial court held that the acts of donation were invalid and the issue was not contested on appeal.

      . The record contains the following colloquy between the defendant and her attorney:
      Q. Why did [the decedent] tell you that? What did she tell you was wrong with the Will?
      A. At the time she made the papers with, she would have to at least leave me one dollar, and she didn’t do it so she knew that the Will wasn’t any good. She said she didn’t have to worry about it.

      . There was conflicting testimony about whether the Certificate of Deposit that estab-fished the Edward Jones account came from Citizens Bank or Guaranty Bank.


author: PETERS, J.

text:
    TTV, L.L.C. v. David B. SIMMONS.
    No. 10-1163.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2011.
    Rehearing Denied April 20, 2011.

      Lamont P. Domingue, Voorhies & Labbe, Lafayette, LA, for PlaintifflAppel-lant, TTV, L.L.C.
    David A. Lowe, Keegan, Denicola, Kies-el, Bagwell, Juban & Lowe, LLC, Baton Rouge, LA, for Defendants/Appellees, David B. Simmons, Wrightwood Construction, L.L.C.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

bTTV, L.L.C. (TTV), a Louisiana limited liability company, brought suit against David B. Simmons and Wrightwood Construction, L.L.C. (Wrightwood Construction), another Louisiana limited liability company, to recover certain funds it had paid to the defendants pursuant to a services and construction agreement entered into by the litigants. TTV appeals the trial court judgment rejecting its claims. For the following reasons, we affirm the trial court’s rejection of TTY’S claims against Wrightwood Construction but reverse the trial court’s rejection of its claims against Mr. Simmons and render judgment in favor of TTV and against Mr. Simmons in the amount of $112,421.00.

DISCUSSION OF THE RECORD

In September of 2004, TTV acquired a thirty-year old apartment complex in Baton Rouge, Louisiana. In the Spring of 2007, Glenn Stewart, TTVs principal owner and general manager, was involved in building a new apartment complex in Lafayette, Louisiana. The contractor in the Lafayette project was Julian LeCraw Construction Company (LeCraw Construction), and David B. Simmons was LeCraw Construction’s project manager for the Lafayette project. During this time TTV decided to renovate the Baton Rouge apartment complex and convert it into a facility to be known as Tiger Manor Condominiums.

In the Spring of 2007, and before any renovation and remolding activity was performed on the Baton Rouge property, Mr. Stewart approached LeCraw Construction’s president, Steven Hendricks, and offered his company the opportunity of performing the work on the Tiger Manor project. Mr. Hendricks declined the opportunity, but offered to loan Mr. Simmons to TTV as a consultant on the Tiger Manor project. However, the loan of Mr. Simmons’ services was to be limited to the 12time he was not involved in activities for LeCraw Construction. In fact, LeCraw Construction continued to pay Mr. Simmons’ salary through August 28, 2007, and billed TTV $4,550.00 for Mr. Simmons’ consulting services between May 18 and July 18, 2007.

With nothing more than an understanding that LeCraw Construction was loaning Mr. Stewart to TTV as a consultant, Mr. Stewart and Mr. Simmons began working together in earnest in June of 2007. At that point, they were involved in choosing floor finishes, deciding on cabinet options, establishing budgets for the remodeling projects, and acquiring permits. TTVs initial goal was to quickly complete two model units at Tiger Manor for use in promoting sales and rentals.

The first direct reference to funding of the Tiger Manor project found in the record is a June 11, 2007 e-mail from Mr. Simmons to Mr. Stewart wherein he noted that “[w]e will also need to arrange for some funding this week so I can keep things moving.” Three days later, on June 14, 2007, Mr. Stewart issued Mr. Simmons a $25,000.00 check. This was followed by two additional $25,000.00 checks from Mr. Stewart to Mr. Simmons — one issued on June 20, 2007, and the other on June 27, 2007. On July 12, 2007, Mr. Stewart issued a $50,000.00 check to Mr. Simmons.

Six days after receiving the last check, on July 18, 2007, Mr. Simmons e-mailed Mr. Stewart a detailed budget for the entire renovation project. The bottom line of that budget reflected a projected cost of construction of $6,827,966.00. The cover letter attached to the transmitted budget discussed some possible changes and | ^raised questions concerning certain categories before closing with the following discussion of the startup costs:

Here is a basic breakdown on the money paid to date . I will have a very detailed one put together for you when you return ... There are two bid deposits that need to go out while you are gone to keep the granite and windows moving....
Mobilization 25K
Permits 25K
License 28K
General Conditions 50K
Model Units (2) 44K
Next 10 units @ 25% 50K
Deposits
Granite 40K
Windows 75K
Total 337K
Paid 125K
Balance 212K
Let me know if you need the account number to transfer funds or you can leave a check with someone and I will have it picked up which ever is easier for you.Just let me know

As the e-mail reflects, Mr. Simmons drew no distinction between what had been paid by the $125,000.00 he had received and what was to be paid. At best, the e-mail purports to establish the estimated costs for the completion of the two model units and the first ten units thereafter.

The first reference to Wrightwood Construction comes in a July 27, 2007 e-mail sent by Mr. Simmons to Mr. Stewart wherein he sent a second copy of the cover letter to the proposed budget and stated:

This is a copy of the email I sent to you before you left on the money status....
Like I told you if you want to wait on the deposits that is fine but need the other to keep things moving ...
You can make this and all future payments to Wrightwood Construction, LLC. I can have the check picked up in Lafayette or it can be delivered to Baton Rouge and given to Sam [the on-site manager]. .1 will be back on site Sunday and most of next week....
Just let me know....

| ¿That same day Mr. Simmons sent Mr. Stewart another e-mail that stated:

We have the permits for the model units....
The others should follow very soon....
I have everyone scheduled to put the models together the correct way....
Plumber is working this weekend and the Electrician will be there in force on Monday ...
I will push everyone as much as possible so we can have these completed as soon as possible. Hopefully early week of the 6th ...

Apparently in response to these e-mails, TTV issued a check made payable to Wrightwood Construction for $212,000.00 on July 30, 2007.

In the meantime, the project continued to move forward. According to Mr. Stewart, by the end of July 2007, he had worked with an architect to help TTV obtain its building permits; had hired everyone working on the site; had helped select all of the options for the condominiums, including kitchen appliances, finishes, and lighting packages; had overseen the demolition work on forty-five of the preexisting units; and had almost completed the two model units.

The two model units were completed some time around the first week in August of 2007. On August 20, 2007, Mr. Stewart e-mailed Mr. Simmons reporting that the open house involving the two model units had been well received. In the e-mail, he thanked Mr. Simmons for his “hard work,” and noted that Mr. Simmons had “certainly delivered as [he had] promised!” The following day, August 21, 2007, Mr. Simmons e-mailed Mr. Stewart concerning the plans to paint the buildings and install shutters and windows, as well as plans for clubhouses, playgrounds, and a basketball court. The next week was Mr. Simmons’ last day on LeCraw Construction’s payroll.

Despite the fact that Mr. Simmons had begun to work full-time with and/or for TTV, the parties still had no written agreement. However, the new relationship had a short life. In mid-September relations between Mr. Stewart and Mr. Simmons Rbegan to deteriorate because Mr. Simmons ignored Mr. Stewart’s repeated e-mail efforts to obtain an accounting of the money already paid to Mr. Simmons and Wrightwood Construction — and to get a response to his dissatisfaction with the progress of the project.

On September 26, 2007, TTV took steps to terminate its relationship with Mr. Simmons and Wrightwood Construction. Mr. Stewart had the locks changed at the project office and secured the contents thereof. According to Mr. Stewart, between the time the two models were completed and September 26, 2007, essentially no work was performed at Tiger Manor.

TTV filed suit against Mr. Simmons and Wrightwood Construction on November 5, 2007, alleging that the defendants had improperly diverted the $337,000.00 it had disbursed between June 14 and August 3, 2007, to Mr. Simmons’ personal use. Mr. Simmons and Wrightwood Construction answered the suit and reconvened for damages for breach of contract, unjust enrichment, quantum meruit, and defamation.

With this factual background, the trial court was required to determine the nature of the agreement or agreements among the parties to the litigation and to trace the $337,000.00 at issue. With regard to the first issue, the only uncontested part of that determination was that LeCraw Construction loaned Mr. Simmons’ services to TTV with the understanding that LeCraw Construction would continue to pay Mr. Simmons.

With regard to the relationships among the parties, Mr. Stewart testified that initially he expected Mr. Simmons to be a consultant and facilitator who would help TTV obtain its permits, select a general contractor, and provide advice on how to | r,convert the thirty-year-old apartment buildings into condominiums. According to Mr. Stewart, these services were to be performed by Mr. Simmons without compensation because he [Mr. Simmons] was on loan from LeCraw Contractors and was being paid by that entity for the very services for which Mr. Simmons now seeks compensation. When the Tiger Manor project began, Mr. Stewart did not anticipate that Mr. Simmons would be a candidate for the general contractor position, but he testified that as early as June 3, 2007, he realized that Mr. Simmons “wanted to take over the whole project and be the general contractor and do everything. And he explicitly made that clear to me when he went over the June 15th budget.” According to Mr. Stewart, the terms of the proposed budget reflected a profit margin for the general contractor of $500.00 per unit for each of the 300 projected units, or a maximum of $150,000.00. Mr. Stewart testified that his understanding early in June of 2007 was that Mr. Simmons would form a construction company, obtain his contractor’s license, and undertake the remodeling project for the contemplated profit of $500.00 per unit.

Mr. Simmons, on the other hand, testified that the $500.00 per unit profit, totaling $150,000.00, was to compensate him for his consulting activities in setting up the project. According to Mr. Simmons, he had earned his $150,000.00 consulting fee when the two model units were completed. When the original general contractor did not work out, he formed his own construction company and, only then did he become the general contractor for that job. In other words, Mr. Simmons argues that there were actually two different agreements with TTV — the first was a personal one for his consultant services that he completed and for which he was entitled to the agreed-upon compensation of $150,000.00; and the second was between TTV and |7Wrightwood Construction for which he and/or Wrightwood Construction were entitled to a separate compensation.

The trial court rendered judgment rejecting both the original claim and the reconventional demand and effectively left the parties in a status quo situation. In its written reasons for judgment, the trial court stated in pertinent part:

The evidence fails to sustain plaintiffs burden of proof that any funds were misappropriated. No builders or suppliers testified that any funds were due them. As stated in defendants[sic] post-trial memorandum, “plaintiff failed to produce one single invoice or bill that it had to pay because Simmons and/or Wrightwood failed to pay it.” The plaintiffs claim for damages is denied.
Defendants were terminated prior to the project being finished. They were to have been paid One Hundred Fifty Thousand Dollars ($150,000.00), collectively, for their work. They received One Hundred Twenty-Five Thousand Dollars ($125,000.00). This court cannot say that they were either underpaid or overpaid. Defendants may retain the portion of the fee collected, but will not be granted the additional Twenty-Five Thousand Dollars ($25,000.00) because the project was not finished at the time of their termination.

In its five assignments of error, TTV basically raises one issue: whether the trial court erred in rejecting its claims for conversion, breach of contract, fraud, breach of fiduciary duty, and intentional interference with a contract because TTV failed to produce evidence of unpaid builders or suppliers.

OPINION

TTV did not appeal the portion of the trial court judgment finding that the agreement between Mr. Simmons and Mr. Stewart provided for Mr. Simmons and/or Wrightwood Construction to be paid a total of $150,000.00 for their role in the Tiger Manor project, nor did it appeal the $125,000.00 partial award for that role. However, the trial court’s reasons for judgment implicitly reject Mr. Simmons’ |8assertion that he was to be paid $150,000.00 for services rendered as a consultant setting up the project and that Wrightwood Construction was to be paid another, unspecified, fee for its work during the renovation and construction phase. While the correctness of this determination plays only a peripheral part in our analysis and is not directly before us on appeal, we do note that this determination is supported by the record—particularly the July 18, 2007 e-mail wherein the cover letter made no mention of the purported $150,000.00 consultant fee. In fact, the only reference in that document to the margin of profit is in the budget, which provides for a $500.00 payment for each of the 300 units completed. Additionally, it is not disputed that Mr. Simmons began his involvement with the Tiger Manor project as a loaned employee from LeCraw Construction or that his employer had continued to pay his normal salary while he was working on the Lafayette, Louisiana, TTV project and had billed TTV for what it understood to be Mr. Simmons’ efforts in Baton Rouge.

TTV claims the right to recover under six different legal theories, and in each assignment of error asserts that the trial court erred in rejecting its claim based on it failure to produce evidence of unpaid builders or suppliers. We agree.

The issue before the court was whether Mr. Simmons and/or Wrightwood Construction improperly diverted funds placed in their trust to Mr. Simmons and, while TTV may have had to pay expenses associated with the Tiger Manor project that should have been paid with the funds distributed to Mr. Simmons and/or Wrightwood Construction, that is not an element of its proof to establish that Mr. Simmons and/or Wrightwood Construction improperly diverted funds placed in their trust. The trial court erred as a matter of law in requiring TTV to produce evidence of unpaid builders or suppliers. That being the case, and because the record before |aus is complete, we will consider the merits of the legal theories espoused by TTV under the de novo standard of review. Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731.

In performing the de novo review of the matter before us, we find it necessary to consider only one of the legal theories—breach of a fiduciary duty. “As a basic proposition, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties.” Scheffler v. Adams and Reese, L.L.P., 06-1774, p. 6 (La.2/22/07), 950 So.2d 641, 647. The Louisiana Uniform Fiduciaries Law, La.R.S. 9:3801-3814, defines a fiduciary as follows:

“Fiduciary” includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate.

La.R.S. 9:3801(2).

Additionally, a corporation can be a fiduciary. La.R.S. 9:3801(3). As pointed out by the supreme court, “[t]he defining characteristic of a fiduciary relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor.” Scheffler, 950 So.2d at 648.

The existence of a “special relationship of confidence or trust” between Mr. Simmons and Mr. Stewart was clearly demonstrated at trial. In his testimony concerning the relationship he created as a consultant for TTV, Mr. Simmons stated:

He [Mr. Stewart] told me that he needed assistance putting it together. He did not know construction. He knew my background and felt comfortable with my knowledge and felt like I could assist him greatly in putting this project together. And we discussed it and came to an agreement that I would do the set up on the project for him.

| inWhen describing Mr. Simmons’ role in the project, Mr. Stewart stated:

He [Mr. Simmons] was going to be the general contractor. I mean, he was going to do the whole thing. You know, I didn’t know anything about construction really. And he was going to get the permits, get all the subs lined up. I mean, he was running the show.

Even Mr. Simmons’ argument in his brief to this court supports the special relationship of trust and confidence, as it stated:

Specifically, [TTV] told Simmons that he needed help putting the Project because [TTV] had no construction experience. [TTV] discussed this opportunity with him because [TTV] knew Simmons’ background, felt comfortable with Simmons’ construction knowledge, and felt like Simmons could greatly assist [TTV] in putting the Project together. At that time, Simmons had over thirty (80) years of experience in the construction industry....

[Citations to the record omitted.]

The trust that TTV and Mr. Stewart placed in Mr. Simmons is further evidenced by the fact that the entire relationship regarding the expenditure of the $837,000.00 existed without a written contract and was evidenced by nothing more than a cover letter to an e-mail.

A fiduciary must handle the manner entrusted to him “as though it were his own affair.” Noe v. Roussel, 310 So.2d 806, 819 (La.1975). The fiduciary “may not take even the slightest advantage, but must zealously, diligently and honestly guard and champion the rights of his principal against all other persons whomsoever, and is bound not to act in antagonism, opposition or conflict with the interest of the principal to even the slightest extent.” Id. at 819. To establish a cause of action for breach of fiduciary duty, the plaintiff must prove fraud, breach of trust, or some action outside the limits of the fiduciary’s duty. Sampson v. DCI of Alexandria, 07-671 (La.App. 3 Cir. 10/31/07), 970 So.2d 55. We find that TTV established both of the last two elements.

InThe record establishes that the $337,000.00 at issue is the exact amount requested by Mr. Simmons in his cover letter to the July 18, 2007 e-mail; that Mr. Stewart, acting on behalf of TTV, paid $125,000.00 of that amount directly to Mr. Simmons before Wrightwood Construction came into existence; and that TTV paid the remaining $212,000.00 to Wrightwood Construction pursuant to Mr. Simmons’ instruction. However, because the payments were made to separate entities, they must be considered separately.

The record also establishes that of the initial $125,000.00, which was paid directly to Mr. Simmons, only $12,579.00 was used for the benefit the Tiger Manor project. Additionally, the trial court rejected Mr. Simmons’ argument that he was entitled to a separate $150,000.00 consulting fee in addition to his salary from his direct employer. Thus, we find that Mr. Simmons breached his fiduciary duty to TTV by diverting the remaining $112,421.00 directly to his benefit.

The remaining $212,000.00 paid to Wrightwood Construction presents a different situation entirely. This amount arises from the second contract affecting the project. It was not between TTV and Mr. Simmons, but between TTV and Wrightwood Construction, and Wright-wood Construction was to make a profit of $500.00 per unit for every one of the 300 units completed under the contract. Thus, although in its reasons for judgment the trial court seemed to award the previously claimed compensation to both Mr. Simmons and Wrightwood Construction, it is clear that Wrightwood Construction is the proper entity to receive credit for that amount.

|12The record establishes that Wrightwood Construction paid $125,725.64 for the benefit of the Tiger Manor project and paid the remainder, $86,274.36, to Mr. Simmons directly. When proper interpretation is given to trial court reasons for judgment, the amount paid to Mr. Simmons represents part of the $125,000.00 fee. We find that Wrightwood Construction is not indebted to TTV and the trial court did not err in dismissing TTV’s claims against Wrightwood Construction.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment to the extent that it dismissed TTV, L.L.C.’s claims against David B. Simmons and award judgment in favor of TTV, L.L.C. and against David B. Simmons, in the amount of $112,421.00. We affirm the trial court’s rejection of TTV, L.L.C.’s claims against Wrightwood Construction, L.L.C. We assess all costs of this appeal to David B. Simmons.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . This represented seven days of consulting services at $650.00 per day.

      . At trial Mr. Stewart testified that TTV reimbursed him for the $125,000.00 he spent on its behalf.

      . Mr. Simmons never testified concerning what he understood his compensation to be as general contractor.

      . Mr. Simmons paid $3,680.00 to Patrick Davis, a contractor working on the project; $3,200.00 to Sandra O'Brian, Mr. Simmons’ sister, whom he hired to serve as project manager; and $5,699.00 for cabinets to be installed in the units.

      . The trial court judgment itself does not mention the $125,000.00 issue. Instead, it simply states that all claims of both David B. Simmons and Wrightwood Construction “against TTV, L.L.C. and Glenn Stewart are denied with prejudice."

      .Wrightwood Construction did not appeal the trial court's failure to award it an additional balancing sum. We note that in their reply brief, the defendants attempt to argue that the trial court erred in denying Mr. Simmons' claims for breach of contract, lien, and defamation. However, neither defendant filed an answer to the appeal, as required under La.Code Civ.P. art. 2133. Filing a brief does not satisfy the article’s requirements. Brewington v. La. Dep't of Corr., 447 So.2d 1184 (La.App. 3 Cir. 1984), writ denied, 449 So.2d 1348 (La. 1984). Accordingly, we do not address those issues.


author: IRVING, J.,

text:
    Janet H. WRIGHT, Appellant v. James C. O’DANIEL, Appellee.
    No. 2009-CA-01531-COA.
    Court of Appeals of Mississippi.
    March 1, 2011.

      William F. Schneller Jr., attorney for appellant.
    Joseph M. Sparkman Jr., attorney for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J.,

for the Court:

¶ 1. Janet Wright; her daughter, Patricia Wright; and her son-in-law, James O’Daniel, built a house together. Janet purchased the lot and held title with Patricia as joint tenants with right of survivor-ship. James and Patricia obtained a loan to finance a portion of the construction costs; however, the lender required that the house be titled in James’s and Patricia’s names. Consequently, Janet and Patricia executed a deed that conveyed the property to Patricia and James. Janet asked that her name be returned to the deed following the loan closing. After the loan closing, Patricia and James executed a second deed that conveyed the property to Janet, Patricia, and James as joint tenants with right of survivorship. The second deed retained James as a joint tenant and reduced Janet’s interest in the property from one-half to one-third. Janet noticed the error when she reviewed the deed, but she did not voice her concerns regarding the deed until Patricia and James separated.

¶ 2. Janet filed suit against James in the DeSoto County Chancery Court on October 28, 2007, four years after she discovered that the deed included James. Janet sought relief in the form of a constructive trust or an equitable lien. The chancellor found that Janet had failed to present sufficient proof to establish a constructive trust and that Janet’s claim was time-barred.

¶ 3. Janet filed a motion to reconsider, arguing that the chancellor had applied the wrong limitations period to her claim. Additionally, Janet argued that James had waived the affirmative defense of the statute of limitations when he failed to assert it in his answer. The chancellor found that Janet’s claim was still barred under the doctrine of laches, which James had raised in his answer.

¶4. Feeling aggrieved, Janet appeals and argues that the chancellor erred in (1) applying the doctrine of laches, as the claim was brought within the applicable statute of limitations period; (2) refusing to establish a constructive trust or an equitable lien; and (3) refusing to reform the deed on the ground of mutual mistake.

¶ 5. The chancery court incorrectly dismissed Janet’s claim by applying the doc-ti'ine of laches; nevertheless, we affirm the chancery court’s judgment on other grounds.

FACTS

¶6. In 2000, Janet and her husband, Charles Wright, moved into Patricia and James’s house. Charles died in 2002. Before his death, Janet and Charles had begun searching for property and intended to build a house of their own. After Charles died, Janet, Patricia, and James discussed the possibility of building a house together.

¶ 7. Janet later purchased a lot in the Dickens Place subdivision in Southaven, Mississippi, and deeded the property in both her and Patricia’s names. Janet, Patricia, and James signed a construction contract for a 5,800-square-foot house with an estimated cost of between $420,000 and $440,000. The parties did not discuss how the construction costs would be paid or how their ownership interests would be divided once the house was completed.

¶ 8. Janet testified that she initially intended to contribute $200,000 to the construction of the house. As construction on the house progressed, it became clear that the house’s cost would exceed the initial estimate. Janet paid an additional $200,000, for a total of $400,000, toward the completion of the house before she approached Patricia and James about securing a construction loan to pay for the remaining costs.

¶ 9. On March 3, 2003, Janet, Patricia, and James obtained a construction loan from First Security Bank. The loan was secured by the Dickens Place property, and Janet, Patricia, and James signed the security agreement. The construction loan had to be paid off upon the completion of the house. Therefore, Patricia and James made arrangements to obtain permanent financing from National City Mortgage. National City Mortgage required that the property be titled in James’s and Patricia’s names since they were the mortgagors on the house. The parties agreed to transfer title of the property by warranty deed from Janet and Patricia to James and Patricia.

¶ 10. Bridgforth and Buntin, a law firm, handled the loan closing. Janet O’Daniel, James’s mother, worked for the firm and assisted with the closing. O’Daniel testified that Janet had instructed her to return Janet’s name to the title after the loan closing. However, O’Daniel further testified that Janet never specified the percentage ownership she sought in the property once her name was returned to the property’s title.

¶ 11. After the loan closing, Bridgforth and Buntin prepared a second deed that placed Janet’s name back on the title. On July 17, 2003, James and Patricia executed the deed, which conveyed the property from James and Patricia to Janet, Patricia, and James. When Janet received the second deed, she noticed that James had been left on the title. However, she did not contact Bridgforth and Buntin regarding the error. Instead, Janet contacted her attorney, Bob Alvarez, who advised Janet to contact a real-estate attorney to resolve the error. However, Janet took no further action to correct the deed.

¶ 12. Patricia filed a petition for divorce from James on May 2, 2007. Patricia testified that after she and James separated, Janet voiced her concerns about the deed and the reduction of Janet’s interest in the property.

¶ 13. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 14. A Mississippi appellate court employs a limited standard of review on appeals from chancery court. Corp. Mgmt. v. Greene County, 23 So.3d 454, 459 (¶ 11) (Miss.2009). As such, we “will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal standard.” Id. (quoting Biglane v. Under The Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss. 2007)). However, questions of law are reviewed de novo. Id.

1. Laches

¶ 15. Janet argues that the chancellor erred in applying the doctrine of laches as the statute of limitations had yet to run on her claim. Janet asserts that the ten-year statute of limitations applicable to actions to recover land applies to her claim.

¶ 16. “[T]he limitations period found in [section] 15-1-7 applies to suits at law to recover land....” O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 n. 2 (Miss. 2001). Its counterpart for suits in equity is found in section 15-1-9. Id. “Since [section] 15-1-9 incorporates [section] 15-1-7 by reference, [the Mississippi Supreme Court] reads these two statutes together.” Id. (citing Neal v. Teat, 240 Miss. 35, 39, 126 So.2d 124, 124 (1961)).

¶ 17. Janet contends that sections 15-1-7 and 15-1-9 control her claim. Our supreme court has held that “laches is no defense if the proceedings are brought within the prescribed period of limitation.” Cont’l Oil Co. v. Walker, 238 Miss. 21, 34, 117 So.2d 333, 338 (1960) (citing Hill v. Nash, 73 Miss. 849, 862, 19 So. 707, 710 (1896)).

¶ 18. While laches may not be employed to shorten the limitations period, Janet’s argument that her claim is governed by sections 15-1-7 and 15-1-9 is incorrect. Our supreme court has held that sections 15-1-7 and 15-1-9 do not “apply except where the person invoking [them] has been in adverse possession of the land against the true owner.” Cont’l Oil Co., 238 Miss, at 33, 117 So.2d at 337 (citing Kennedy v. Sanders, 90 Miss. 524, 542, 43 So. 913, 916 (1907)). Additionally, our supreme court has referred to section 15-1-7 as “our statute on adverse possession.” O’Neal Steel, Inc., 797 So.2d at 873 (¶ 11) (quoting Lowi v. David, 134 Miss. 296, 300, 98 So. 684, 685 (1924)).

¶ 19. There is no evidence that any of the parties adversely possessed the property, nor did Janet assert a claim of adverse possession in her complaint. Janet did, however, seek equitable relief in the form of a constructive trust. The statute of limitations applicable to actions involving constructive trusts provides in pertinent part:

Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue and not after, saving, however, to all persons under disability of infancy or unsoundness of mind, the like period of time after such disability shall be removed.

Miss.Code. Ann. § 15-1-39 (Rev.2003) (emphasis added).

¶ 20. Janet testified that she discovered the reduction of her ownership interest in the property as early as November 2003. Janet filed her complaint seeking the imposition of a constructive trust on October 23, 2007, well within the ten-year limitations period applicable to constructive trusts. Because the limitations period had yet to run on Janet’s action, the chancellor erred in applying the doctrine of laches.

2. Constructive Trust

¶ 21. Although Janet filed her claim within the applicable limitations period, we find that she is not entitled to relief in the form of a constructive trust. “A constructive trust is a fiction of equity created for the purpose of preventing unjust enrichment by one who holds legal title to property which, under principles of justice and fairness, rightfully belongs to another.” McNeil v. Hester, 753 So.2d 1057, 1064 (¶ 24) (Miss.2000) (citing Allgood v. Allgood, 473 So.2d 416, 421 (Miss.1985); Russell v. Douglas, 243 Miss. 497, 505-06, 138 So.2d 730, 734 (1962)). Our supreme court has held that a constructive trust is properly imposed when:

[O]ne who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds-the legal right to property which he ought not, in equity and good conscience, hold and enjoy.

Id. (quoting Saulsberry v. Saulsberry, 223 Miss. 684, 690, 78 So.2d 758, 760 (1955)). Furthermore, “clear and convincing proof is necessary to establish a constructive trust.” Id. at (¶ 25) (citing Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1034 (Miss.1990)).

¶ 22. The record is void of any evidence of fraud, duress, or unconscionable conduct on James’s part. James testified that he was not involved in the preparation of the deed. While the law firm where O’Daniel worked was responsible for the deed’s preparation, she testified that she had no direct involvement with the deed’s preparation, nor did she intend to divest Janet of her ownership interest. Furthermore, Janet’s only instruction regarding the deed’s preparation was that her name be added back to the deed following the loan closing, which the law firm did. Janet did not instruct O’Daniel or Bridgforth and Buntin to remove James from the deed.

¶ 23. Janet, Patricia, and James all testified that there was never an agreement or a family discussion regarding each party’s ownership interest in the property. While Janet asserted in her testimony that she and Patricia had an implied 50/50 ownership agreement, Janet took no action to enforce her alleged interest or to correct the deed until it became apparent that James and Patricia were divorcing. The familiar maxim that equity aids the vigilant and not those who slumber on their rights certainly applies here. Janet admitted in her testimony that she discovered that the deed included James as a joint owner of the property as early as November 2003. Janet did not contact the law firm that prepared the deed to inform it of the error. Instead, Janet contacted her attorney, who advised her to contact a real-estate attorney. However, Janet failed to do so and took no further action to correct the deed until Patricia and James filed for divorce.

¶24. Janet offered no evidence that James engaged in fraud, duress, overreaching, or other questionable conduct in obtaining his ownership interest in the property. Furthermore, we do not find that James was unjustly enriched, especially when the parties never agreed to or even discussed specific ownership interests in the property. Because Janet failed to prove the existence of a constructive trust by clear and convincing evidence, the chancellor did not err in refusing to impose a constructive trust.

3. Equitable Lien

¶ 25. Janet argues that the chancellor erred in refusing to place an equitable lien on the property. Equitable liens, like constructive trusts, are designed to prevent unjust enrichment. Neyland v. Neyland, 482 So.2d 228, 230 (Miss.1986). As stated above, we do not find that James was unjustly enriched. Therefore, Janet is not entitled to the imposition of an equitable lien.

¶ 26. Janet argues that Neyland is analogous to her case. In Neyland, parents loaned money to their son, Jimmy, and daughter-in-law, Olivia, to build a house. Id. at 229. After construction was completed, it became clear that Jimmy and Olivia were divorcing. Id. Jimmy’s parents filed an action seeking an equitable lien on the house. Id. Our supreme court found that the parents were entitled to have a lien on the property equal to the amount of the loan plus interest. Id. at 231.

¶ 27. Neyland is easily distinguishable from this case. In Neyland, the parents loaned their son money to construct a house. While the parties did not agree to a repayment schedule, they did agree that the money was a loan that had to be repaid. Id. at 229. Janet testified that she never intended that James or Patricia would have to repay her for the money that she contributed to the house’s construction costs. Furthermore, as noted above, Janet, Patricia, and James all testified that there was no discussion or agreement regarding ownership interests in the house. Instead, the parties simply agreed to build a house that Janet, Patricia, and James could live in and enjoy together.

¶28. Because we do not find that James was unjustly enriched, we cannot find that the chancellor erred in refusing to impose an equitable lien on the property-

Jp. Mutual Mistake

¶ 29. Janet also argues that the chancellor erred in refusing to reform the deed on the ground of mutual mistake. “In an action to reform a deed based on a mistake theory, the petitioner must demonstrate a mutual mistake among the parties or a unilateral mistake in combination with fraud or inequitable conduct on the part of the benefitting party.” McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992) (citing Perrien v. Mapp, 374 So.2d 794, 796 (Miss.1979) (overruled on other grounds)). Mutual mistake must be proven beyond a reasonable doubt. Id.

¶ 30. In Brown v. Chapman, 809 So.2d 772 (Miss.Ct.App.2002), this Court refused to reform a deed that Veola Brown had executed in favor of her grandson, Jeffery. Id. at 773 (¶ 2). The deed conveyed seventeen acres of Brown’s property. Id. However, Brown claimed that she only intended to convey one or two acres to Jeffery so that he could build a house. Id. Brown retained a local attorney to prepare the deed, but a member of the attorney’s clerical staff actually prepared the deed. Id. at (¶ 4). Brown admitted that she neglected to read the deed before signing it. Id.

¶ 31. Brown argued that because she did not intend to convey seventeen acres to Jeffery, the deed should be reformed on the ground of mistake. Id. at 774 (¶ 7). This Court held that mutual mistake did not apply because the conveyance resulted from Brown’s unilateral mistake. Id. at (¶ 10). Brown had failed to present evidence of fraud or other unconscionable conduct on Jeffrey’s part, and this Court refused to reform the deed on the ground of unilateral mistake. Id. at (¶¶ 11-12).

¶ 32. In this case, Janet reviewed the deed. The deed clearly reflected that James retained an ownership interest in the property, and Janet took note of that fact. However, Janet failed to take action to correct the deed other than soliciting the advice of her personal attorney, which she did not follow. In Bromi, a case with similar facts, this Court determined that a unilateral mistake had occurred. We see no reason to hold differently here. While Janet may have intended to share an ownership interest in the property with Patricia alone, this constitutes only a unilateral mistake, and Janet has failed to prove fraud or other unconscionable conduct on the part of James that would entitle her to relief. Therefore, the chancellor did not err in refusing to reform the deed on the ground of mistake.

¶ 33. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . In the original complaint, Janet named Patricia, James, National City Mortgage Company, and First Tennessee Bank National Association as defendants. However, Janet and James are the only parties in this appeal.

      . The chancellor applied the limitations period for oral contracts set forth in Mississippi Code Annotated section 15-1-29 (Rev.2003).

      . For clarity, we will refer to Janet Wright as "Janet” and James’s mother as "O’Daniel.”

      . Mississippi Code Annotated section 15-1-7 (Rev.2003) provides in pertinent part:
      A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

      .Mississippi Code Annotated section 15-1-9 (Rev.2003) provides in pertinent part:
      A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.