text:
    CAPITAL ONE BANK (USA), NA v. Karen N. SANCHES.
    No. 2013-CA-0003.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Gregory McCarroll Eaton, Stacey L. Greaud, Paul Edward Pendley, Mia D. Eti-enne, Eaton Group Attorneys, LLC, Baton Rouge, LA, for Plaintiff/Appellee.
    Robert Angelle, Rebecca Ann Rena Co-man, Attorney at Law, Metairie, LA, Charles V. Cusimano, III, Cusimano Law Firm, PLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

hThe Appellant, Karen Sanches, seeks review of the September 10, 2012, judgment of the second city court granting summary judgment in favor of the Appel-lee, Capital One Bank (USA) N.A., on an open account. Pursuant to our de novo review, we reverse.

Facts and Procedural History

Capital One Bank (USA) N.A. (“Capital One”), filed suit against Karen Sanches on September 21, 2011, for unpaid sums on her MasterCard account, ending in 2863. Ms. Sanches answered the suit, but did not raise any affirmative defenses therein. Capital One propounded discovery on Ms. Sanches, who did not timely respond. On January 10, 2012, Capital One filed a motion for summary judgment or in the alternative a motion to compel discovery. The second city court denied Capital One’s motion for summary judgment, but granted the motion to compel, ordering Ms. Sanch-es to answer the outstanding discovery within 30 days. Thereafter, Ms. Sanches timely submitted her discovery responses.

| ^Capital One filed a second motion for summary judgment or, in the alternative, to compel discovery on May 15, 2012, which Ms. Sanches opposed. A hearing was held on August 14, 2012, wherein Ms. Sanches argued that the affidavits submitted by Capital One in support of its motion for summary judgment were insufficient. The second city court took her argument into consideration although it had not been briefed. Nevertheless, the court ultimately held that the affiants were familiar with and had reviewed the business records for Ms. Sanches’ account and granted Capital One’s summary judgment on September 10, 2012. Thereafter, Ms. Sanches filed a Petition for Devolutive Appeal, which was granted by the second city court on September 25, 2012. The second city court issued a second judgment on September 28, 2012, pertaining to Capital One’s motion for summary judgment. Ms. Sanches appealed the second judgment and filed a petition for nullity.

In the instant appeal, Ms. Sanches raises two (2) assignments of error:

1) the second city court erred in granting summary judgment in favor of Capital One, and
2) the second city court erred in issuing a second final judgment on September 28, 2012, after the delays for a new trial had expired and after Ms. Sanches had filed her petition for appeal.

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. John C. Bose Consulting Eng’r, LLC v. John T. Campo & Associates, Inc., 07-1001, p. 2 (La.App. 4 Cir. 2/20/08), 978 So.2d 1033, 1034 (citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182). Pursuant to La.Code Civ. Proc. art. 966, a summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.

If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Bose, 07-1001, pp. 2-3, 978 So.2d at 1035 (citing Oakley v. The-bault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490). The burden does not shift to the party opposing summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, pursuant to La.Code Civ. Proc. art. 966(C), the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.”

First Assignment of Error

In her first assignment of error, Ms. Sanches argues that the second city court erred in granting Capital One’s summary judgment in favor of Capital One because: 1) the affidavits submitted by Capital One with its motion for summary judgment were not based on the personal knowledge of the affiants, and 2) Capital One failed to furnish admissible evidence sufficient to prove a prima facie case.

Ms. Sanches attacks the sufficiency of the affidavits of Dean Liverman, a Litigation Support Representative for Capital One, and Kate White, an employee |4of Capital One’s counsel, in her first argument. She avers that neither of the affidavits demonstrates that the affiants had personal knowledge of the facts to which they attest, which is required for affidavits supporting motions for summary judgment under La.Code Civ. Proc. art. 967.

Regarding Mr. Liverman particularly, she avers that his affidavit is a form affidavit wherein he identifies himself only as an “authorized agent” of Capital One. She argues that Mr. Liverman does not define the scope of his employment with Capital One within the affidavit, which also reveals that he does not keep Capital One’s records. The affidavit does not indicate how Mr, Liverman obtained the knowledge of her records, according to Ms. Sanches. She further contends that nothing in his affidavit states (1) that she opened an account with Capital One; (2) when she opened it, and (3) what she agreed to when the account was allegedly opened. Thus, she argues, it is clear that Mr. Liverman is not the person who has actual “knowledge of the acts and events” of the disputed account.

Furthermore, she contends that Mr. Liverman’s affidavit is insufficient to even meet the “business records” exception to hearsay of La.Code of Evid. art. 803 because Mr. Liverman does not state in the affidavit that he is the custodian of the records or is otherwise qualified to tell the court what the records show, based upon personal knowledge. The affidavits, she alleges, do not provide facts to indicate how the affiants gained personal knowledge of the facts included therein. She also argues that neither of the contested affidavits identifies any particular documents, which is a defect fatal to the motion for summary judgment. [.^Additionally, she argues that the second city court previously rejected the same affidavits when it denied Capital One’s first motion for summary judgment.

In Louisiana, suits to collect credit card debit are treated as suits on an open account. CACV of Colorado, LLC v. Spiehler, 09-151, p. 2 (La.App. 3 Cir. 6/3/09), 11 So.3d 673, 675. A prima facie case on an open account requires proof of the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Id. (citing Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991)). Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Id. “[T]he opponent has nothing to prove in response to the motion [for summary judgment] if a prima facie case has not been made.” Hat’s Equipment, Inc. v. WHM, L.L.C., 11-1982, p. 7 (La.App. 1 Cir. 5/4/12), 92 So.3d 1072, 1076 [citations omitted].

Article 967 of the Louisiana Code of Civil Procedure sets forth the requirements for affidavits offered in support of motions for summary judgment and provides in pertinent part:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof [ referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

“[I]t is insufficient for an affiant to merely declare that he has “personal knowledge” of a certain fact. The affidavit must affirmatively establish that the affi-ant is competent to testify to the matters stated by a factual averment showing how he came by such knowledge.” THH Properties Ltd. P’ship v. Hill, 41,038, p. 7 (La.App. 2 Cir. 6/2/06), 930 So.2d 1214, 1219 (citing Express Pub. Co., Inc. v. Giani Inv. Co., Inc., 449 So.2d 145 (La.App. 4 Cir.1984)). “Personal knowledge means something which a witness actually saw or heard, as distinguished from something a witness learned from some other person or source.” Id. (citations omitted). Furthermore, “ ‘personal knowledge’ encompasses only those facts which the affiant saw, heard or perceived with his own senses.” Express Pub. Co., Inc., 449 So.2d at 147 (citing Atkinson v. Allstate Ins. Co., 361 So.2d 32 (La.App. 3 Cir.1978)).

Additionally, with regard to business records La.Code Evid. art. 803 states in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, |7events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

Ms. Sanches is correct in her assertion that there is a distinction between an affidavit that meets the requirements of a business record exception to hearsay rule under art. 803(6) affidavit as opposed to an affidavit that meets the personal knowledge requirement of La.Code Civ. Proc. art. 967 required of summary judgment affidavit. Nevertheless, our court has explained, for purposes of summary judgment, that where affiants attest to facts contained in business records said affiants are not required to demonstrate that they personally prepared the records or have firsthand knowledge of the contents of the records:

However, where business records are concerned, the courts have deemed it sufficient that the affiant be qualified to identify the business records as such. The affiant has not been required to show that he personally prepared the business records, or that he had direct, independent, first hand knowledge of the contents thereof. Brown v. Adolph, 96-1257 (La.App. 1 Cir. 3/27/97), 691 So.2d 1321.... The practical wisdom of this approach is especially easy to appreciate in litigation involving long running account relationships where it | swould not normally be practical or necessary to require every one of possibly numerous employees to personally attest to each entry on the account. Although the wisdom of the business records doctrine is easiest to see in connection with accounts of long standing, it is equally applicable to business records in general.

Delcambre v. Price, 99-0223, p. 4 (La.App. 4 Cir. 3/24/99), 738 So.2d 593, 595.

Our review of the record shows that Capital One principally relied upon the affidavit of Mr. Liverman in support of its motion for summary judgment. In his affidavit, he identifies Ms. Sanches as the defendant in the caption and thereafter within the affidavit she identified as the “defendant”. He attests to the fact that she has an outstanding balance of $6,771.87, plus interest accruing at an annual percentage rate of 26.15%, as of August 15, 2011 on her Capital One MasterCard account ending in 2863. He further attests to the fact that pursuant to a Capital One Customer Agreement, she owes attorneys’ fees and costs to the extent provided by law. Additionally, he states that “Capital One has provided counsel with certain documents from its books and records relating to” Ms. Sanches? Capital One account and that any such documents attached to his affidavit by counsel are “true and correct”. The attached documents are:

1. a Capital One Customer Agreement;
2. Invoices for billing periods December [2010] to January 2011, January to February 2011, February to March 2011 and March to June 2011 addressed to Ms. Sanches and listing her various outstanding balances, and
3. A transaction data summary naming Ms. Sanches.

|nThe attached documents are not named or otherwise identified within his affidavit. Lastly, he attests that the information included in his affidavit is true and correct and that if called as a witness, he would competently testify under oath thereto.

Louisiana courts have recognized that affidavits that reference and authenticate documents attached thereto in support of a motion for summary judgment can establish a prima facie case that the motion should be granted. See Found. Materials, Inc. v. Carrollton Mid-City Investors, L.L.C., 10-0542, pp. 4-5 (La.App. 4 Cir. 5/25/11), 66 So.3d 1230, 1233. Authentication is “a condition precedent to admissibility” which is satisfied by “evidence sufficient to support a finding that the [document] is what its proponent claims.” FIA Card Servs., N.A. v. Weaver, 10-1372, p. 15 (La.3/15/11), 62 So.3d 709, 718 (citing La. Evid.Code art. 901(a)).

We find that the affidavit of Mr. Liver-man does not accurately establish Ms. Sanches’ indebtedness to Capital One because there is no documentation that he specifically names, attaches and authenticates that establishes her indebtedness. As noted above, a prima facie case on an open account requires proof of the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. CACV, supra. In the instant matter, Capital One has not demonstrated that it is entitled to summary judgment because there has been no proof of the account made by showing a record thereof. Moreover, as Ms. Sanches argues, the wording of the affidavit does not identify with specificity what documents are attached. The vague | inwording of Mr. Liverman’s affidavit does not serve to authenticate the attached documents that are not specifically referenced within his affidavit. As this was the only affidavit submitted by Capital One that purported to authenticate documentation of Ms. Sanch-es’ indebtedness, we find that Capital One did not carry its burden of proof on its motion for summary judgment. Thus, pursuant to our de novo review, we reverse the judgment of the second city court and deny Capital One’s motion for summary judgment.

Lastly, we pretermit discussion of the remaining assignment of error, as it is moot.

DECREE

For the forgoing reasons, the judgment of the second city court granting the mor tion for summary judgment of Capital One Bank (USA) N.A., is reversed and this matter is remanded to the district court for further proceedings.

REVERSED AND REMANDED

      . La.Code Evid. art. 901(A) states:
      A. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    Mary Lou McCALL v. FOCUS WORLDWIDE TELEVISION NETWORK, INC., et al.
    No. 2012-CA-0742.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.
    Rehearing Denied July 31, 2013.

      Randall A. Smith, J. Geoffrey Ormsby, Smith & Fawer, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    F. Evans Schmidt, Caitlin Morgenstern, Koch & Schmidt, LLC, New Orleans, LA, for Defendant/Appellee, Focus Worldwide Television Network, Inc.

      (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| jPlaintiff, Mary Lou McCall, appeals several judgments of the trial court rendered in her lawsuit against defendants, Focus Worldwide Television Network, Inc. and Charlene Vance.

In 1988, Ms. McCall, a television journalist in New Orleans, Louisiana, began working as a volunteer with Focus Worldwide Television Network, Inc. (“Focus”), a Catholic television station and video production company founded by the late Archbishop Philip Hannan. Prior to her compensated employment, Ms. McCall volunteered her services and worked with Archbishop Hannan, starring in and producing faith-based documentaries, and ultimately hosting a faith-based television show, called “FOCUS,” which dealt with topics relevant to the Roman Catholic community. On December 31, 1993, Ms. McCall entered into a formal 12employment contract with WLAE, a television station, and Focus Syndicate, Inc., signed by her and Archbishop Hannan, which stated as follows:

I, the undersigned (Archbishop Philip M. Hannan) agree to have Mary Lou McCall (Mrs. John Young) paid a salary of $60,000 per year for her services as producer of the FOCUS program broadcast over Station WLAE, Channel 32 and the documentaries to be made in accord with the schedule which we have maintained in previous years. Mary Lou McCall will be required to work three days a week (currently the first three work days) and she will be consulted about the time and place for making the documentaries. She will not be paid an additional amount for the documentaries. In addition to her salary an insurance policy with an annual premium of $10,000 will be funded in her name and on her behalf.
The payment of the salary of $60,000 will be as follows: she will be paid $30,000 a year by WLAE with payments made every two weeks; she will be paid another $30,000 per year by Archbishop Hannan in his capacity as President of WLAE and President of Focus Syndicate, Inc. with payments every two weeks amounting to $1,153.85. The provisions of the insurance policy are contained in a separate document attached to this agreement.
This agreement goes into effect on January 1, 1994 with a payment of $1,153.85.
This agreement can be terminated by either party with two month’s notice.

While the nature of the $10,000 annual premium identified in the first paragraph of the contract is disputed by the parties, the record establishes that Focus paid a $10,000 premium annually for a life insurance policy in Ms. McCall’s name from 1994 until 1999, when Ms. McCall decided to surrender the policy and | stake receipt of its cash value according to the terms of the policy. According to Ms. McCall, when she decided to take the cash value of the insurance policy, Archbishop Hannan verbally agreed to continue paying $10,000 per year directly to her for her retirement. Focus made one $10,000 payment to her directly at the end of 1999, but she never received another $10,000 annual payment after that time.

According to Ms. McCall, on March 20, 2003, the Board of Directors of Focus passed two resolutions, which are both at issue in this lawsuit. The resolutions are signed only by Ms. McCall and Archbishop Hannan. One of the purported resolutions includes the following paragraph:

Mary Lou McCall is a member of the corporate membership as well as a member of the board of directors of which she is Vice President. Thus she is in a position to continue in her present capacity as the Director of programming of Focus for as long as she desires.

The other purported resolution involves an agreement to sell and transfer ownership of equipment owned by Focus to Ms. McCall. Preceding the list of equipment to be transferred to Ms. McCall is the following language:

In consideration for the services you’ve rendered since 1988 and for the amount of one dollar and other valuable consideration, I[,] Philip M. Hannan [,] sell and transfer to you, Mary Lou McCall [,] the following and attached equipment free and clear of any liens and encumbrances of any type or nature.

I ¿Following the list of equipment subject to this purported resolution is the following language:

Notwithstanding the transfer of title and ownership of the above listed equipment to Mary Lou McCall, Mary Lou McCall hereby agrees to continue to produce programs for Focus under the same terms and conditions presently applicable, until such time as the Focus mission ceases to exist or until such time as mutually agreed upon.

Archbishop Hannan signed this document as President of Focus. The document was also signed by Ms. McCall and two witnesses.

On March 21, 2003, another Focus resolution purportedly removed Mr. Charles Read as a member of Focus, according to Ms. McCall. That resolution, which is also at issue in this lawsuit, was signed by Ms. McCall and Archbishop Hannan, and stated as follows:

Be it resolved that by a majority vote, Rusty Reed [sic] has been removed as an officer of the corporation of Focus Worldwide Network beginning on this day Friday March 21, 2003.

(Emphasis added).

Focus argues that this resolution did not remove Mr. Read as a member of Focus, as Ms. McCall contends. Ms. McCall argues that the use of the word “officer” instead of “member” was merely a typographical error, and that this resolution removed Mr. Read as a member of Focus. Ms. McCall relies on this resolution to support her position that Mr. Read should not have been allowed to vote at a Board of Directors’ meeting held on May 8, 2007, which effectively removed Ms. McCall as a member, director and officer of Focus.

|sBy letter signed by Archbishop Han-nan and dated May 2, 2007, Ms. McCall received notice that her employment and association with Focus was being terminated, effective immediately. At a Focus membership meeting held several days later, on May 8, 2007, a new slate of members, directors and officers was elected, and the slate did not include Ms. McCall’s name.

Ms. McCall filed suit in federal court on September 6, 2007 against Focus, Archbishop Hannan and Charlene Vance (an employee and director of Focus) for improperly terminating her employment with Focus. The lawsuit filed in federal court was dismissed on jurisdictional grounds on April 20, 2009. On September 17, 2009, Ms. McCall filed the instant lawsuit in Civil District Court for Orleans Parish, naming Focus and Ms. Vance as defendants.

Ms. McCall listed five counts in her petition. Those included:

Count 1 — Breach of Contract against Focus;
Count 2 — Defamation against Focus;
Count 3 — Intentional Interference with Contract against Ms. Vance;
Count 4 — Revendieatory Action against Focus; and
Count 5 — Demand for Damages, Penalties and Royalties for Retail Sales of Videos against Focus.

In Count 1, Ms. McCall alleged that Focus breached the contract with her by failing to pay $10,000 per year in premiums for retirement insurance for her benefit. She also claimed that Focus breached two agreements of March 20, 2003, one which allegedly guaranteed her tenured employment until she desired to leave 1 fiFocus, and the other which agreed to transfer certain equipment, videotapes and other movable property to her in consideration for her prior work at Focus and other valuable consideration.

In Count 2, Ms. McCall alleged that the statements contained in her termination letter were false and calculated to cause harm to her. She also alleged that the termination letter was sent to her through a courier, without any cover concealing the letter.

In Count 3, Ms. McCall alleged that Ms. Vance knew of the contract guaranteeing Ms. McCall lifetime employment with Focus, and intentionally induced Focus to breach the contract by making untrue and derogatory comments about Ms. McCall to Archbishop Hannan, and by acting in an unfair and unethical manner to remove Ms. McCall from her position at Focus.

In Count 4, Ms. McCall alleged that she is the lawful owner of all equipment, videotapes and other movable property set forth in a March 20, 2003 purported contract between her and Focus. She further alleged that since the date of her termination, Focus has wrongfully possessed these items and has refused to surrender them to Ms. McCall, despite her formal demand on Focus.

In Count 5, Ms. McCall alleged that she is entitled to damages, penalties and royalties for retail sales of videotapes resulting from Focus’ failure to surrender the items to which she alleged ownership in Count 4.

l7Ms. McCall asked that the trial court award her all general, equitable and legal relief to which she is entitled, including but not limited to all damages, attorney’s fees, costs, and legal and judicial interest.

On October 15, 2009, Focus filed a re-conventional demand against Ms. McCall. In this demand, Focus alleged that the purported corporate resolutions of March 20, 2003 were prepared by Ms. McCall in bad faith, that no meeting of the Focus Board of Directors was held as stated in the purported resolutions, and no motions were made, discussed, voted upon or passed by the Board of Directors relating to these purported resolutions. Focus further alleged that Ms. McCall’s attempt to improperly secure lifetime employment status and to have almost all of the movable assets of Focus transferred to her for no consideration was a breach of her fiduciary duty to the corporation and an attempt to improperly benefit and/or enrich herself at the expense of the corporation. Focus asked that the trial court award it attorney’s fees, costs and judicial interest from date of judicial demand and all other general and equitable relief that the court deemed appropriate.

On November 30, 2009, Focus and Ms. Vance filed declinatory exceptions of insufficiency of citation and service of process and improper venue, and peremptory exceptions of no cause of action, prescription and res judicata. The exceptions of insufficiency of citation and service of process, improper venue and res judicata are not at issue in this appeal. In their memorandum in support of the exceptions of no cause of action and prescription, Focus and Ms. Vance argued that Ms. McCall’s petition does not state a valid cause of action because lifetime | ¿¡employment contracts are against public policy in Louisiana, citing La. C.C. articles 2746 and 2747. Focus and Ms. Vance further argued that because Ms. McCall cannot have a cause of action based on a lifetime employment contract, she cannot state a claim for intentional interference with such a contract because she cannot establish the first element of such a claim, which is the existence of a contract or a legally protected interest between the plaintiff and the corporation. See 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989).

As to the exception of prescription, Focus and Ms. Vance argued that the tort claims asserted by Ms. McCall are subject to a one-year prescriptive period pursuant to La. C.C. article 3492, and her employment claims are subject to a three-year prescription period pursuant to La. C.C. article 3494. See Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La.4/12/05), 898 So.2d 1260. Focus and Ms. Vance argued that Ms. McCall’s claims are prescribed on their face.

In her memorandum in opposition to the exceptions, Ms. McCall argued that her employment contract at issue is not a lifetime employment contract, but rather is an agreement that provided her with a term of employment — the term being the period during which she desired to remain at the station. She further argued that the agreement did not violate public policy because permanent employment is allowed when it is supported by some special consideration given by the employee over and above the rendering of services. She claimed that this exception is applicable in her case. Ms. McCall also argued that her case is not prescribed ]sbecause the filing of her federal action, which was dismissed on jurisdictional grounds, interrupted prescription, citing La. C.C article 3462. She also argued that her claim regarding the annual $10,000 payment, which she alleged is for her retirement, is subject to a ten-year prescriptive period pursuant to La. C.C. article 3499.

On December 23, 2010, Ms. Vance filed a motion for summary judgment on the issues of intentional interference with a contract and prescription. In support of her motion, she filed a memorandum, a statement of uncontested material facts, affidavits of Archbishop Hannan, Noel Allen (Ms. McCall’s husband at the time of the 2009 affidavit), and Rev. Monsignor Christopher H. Nalty, J.C.L. She also filed the employment contract signed by Archbishop Hannan and Ms. McCall on December 31, 1993, excerpts from Ms. McCall’s deposition, the purported March 20, 2003 resolution of the Focus Board of Directors authorizing the employment of Ms. McCall “for as long as she desires,” and the May 2, 2007 letter from Archbishop Hannan terminating Ms. McCall’s employment with Focus.

On January 12, 2011, Focus filed a motion for summary judgment against Ms. McCall on the issues of: 1) lifetime employment or anything other than “at will” employment; 2) termination for cause; 3) prescription of all employment claims greater than three years; 4) defamation against Focus; 5) breach of fiduciary duty as it relates to purported lifetime employment and divestiture of most of the 1 inmovable assets of Focus; and 6) ultra vires acts of Focus. In support of this motion, Focus filed a memorandum, a statement of uncontested material facts, the two purported March 20, 2003 resolutions at issue, excerpts of the depositions of Archbishop Hannan, Ms. McCall, and Mark Coudrain, the deposition of June Harper, the employment contract signed by Archbishop Hannan and Ms. McCall on December 31, 1993, the July 14, 1999 Focus Articles of Incorporation, the May 2, 2007 letter of termination, and affidavits of Ms. Vance, Philip Brooks, Archbishop Hannan, Charles F. Read, Jr., Rev. Monsignor Christopher H. Nalty, J.C.L., and Noel Allen.

Although there is no indication in the record that the trial court issued rulings on the motions for summary judgment filed by Ms. Vance and Focus on December 23, 2010 and January 12, 2011, respectively, the trial court rendered judgments on the exceptions of no cause of action filed by these parties. On February 22, 2011, the trial court granted Ms. Vance’s exception of no cause of action, and dismissed Ms. McCall’s claims against her with prejudice. On February 24, 2011, the trial court granted the exception of no cause of action filed by Focus as to Ms. McCall’s claims of tenured or lifetime employment, and dismissed those claims with prejudice.

On February 24, 2011, Ms. McCall filed a motion for partial summary judgment or, alternatively, a motion for new trial. In her motion for partial summary judgment, Ms. McCall sought a ruling that there is no material fact at issue that her termination as Vice President and Secretary of Focus was not |nproperIy authorized or consistent with the procedures for termination set forth in the Focus Articles of Incorporation. Specifically, she alleged that the termination was carried out by Focus by misrepresenting that a certain individual, Charles Read, was a member eligible to vote on Ms. McCall’s termination. As an alternative to her motion for partial summary judgment, Ms. McCall sought a new trial on the exception of no cause of action filed by Focus, arguing to the trial court that its ruling on the exception of no cause of action regarding lifetime employment should not include her allegation that she was improperly terminated as an officer of Focus.

In support of her motion for partial summary judgment or, alternatively, motion for new trial, Ms. McCall submitted a memorandum, a statement of uncontested material facts, her affidavit, a purported March 21, 2003 resolution of the Focus officers, removing Charles Read as an officer of the corporation, a notice of a special meeting of the Focus membership scheduled for May 8, 2007, excerpts of Archbishop Hannan’s deposition, the July 14, 1999 Focus Articles of Incorporation, an extract of minutes from a July 14, 1999 meeting of the Focus membership and Board of Directors, and excerpts of Ms. McCall’s deposition.

On March 1, 2011, Focus filed a cross-motion for summary judgment on the issues of Charles Read’s designation and continuity as a member of the corporate membership of Focus and the validity of the May 8, 2007 membership meeting, and an opposition to Ms. McCall’s motion for partial summary judgment. In support of its cross-motion for summary judgment, Focus submitted a statement of 112uncontested material facts, a response to Ms. McCall’s statement of uncontested material facts, affidavits of Mark Coudrain, Charles Read, Archbishop Hannan, Philip S. Brooks, Ms. Vance, excerpts from Ms. McCall’s deposition, and a Unanimous Consent Agreement of the Focus members, dated April 29, 2002, appointing Mr. Read to membership in Focus.

On March 3, 2011, Ms. McCall filed an opposition to the motion for summary judgment filed by Focus on January 12, 2011, and also filed a response to the statement of uncontested material facts submitted by Focus. Attached to the opposition were excerpts from the depositions of Ms. McCall, Ms. Vance, and Archbishop Han-nan, and a ledger of Focus checks written to Ms. McCall.

Following a hearing on March 25, 2011, the trial court granted Focus’ exception of prescription, ruling that Ms. McCall’s claim regarding the $10,000 annual payment agreed to in the 1993 employment contract is subject to a three-year prescriptive period. On April 25, 2011, the trial court denied Ms. McCall’s motion for partial summary judgment, and granted the cross-motion for summary judgment filed by Focus, finding that Charles Read was a member of the Focus corporate membership from April 29, 2002 to present (date of judgment) and that the resolution purporting to remove Mr. Read as a member is invalid.

The remaining issues before the court were heard at a trial on March 30-31, 2011. On December 13, 2011, the trial court rendered judgment dismissing all of [ isthe claims brought by Ms. McCall against Focus, including breach of contract, revendicatory claims for damages for royalties, ownership claims including Focus equipment and video library, the intellectual property of Focus, claims to market Focus videotapes in her own name or for her own benefit and all other claims. The court also dismissed all claims brought by Focus against Ms. McCall in its reconven-tional demand.

Ms. McCall appeals all of the above judgments, and presents five assignments of error. The trial court did not issue reasons for judgment for any of the judgments appealed from.

Ms. McCall first argues that the trial court erred in granting Focus’ exception of prescription as to Ms. McCall’s claim for alleged retirement benefits, and ruling that this claim is subject to the three-year prescriptive period of La. C.C. article 8494. Ms. McCall’s petition included the following allegations within her breach of contract claim:

24.
The contract between Ms. McCall and Focus, in which the corporation agreed to pay $10,000.00 per year in premiums for retirement insurance benefitting Ms. McCall, created a conventional obligation between Ms. McCall and Focus.
25.
The contract required Focus to remit $10,000.00 to a retirement insurance fund for the benefit of Ms. McCall.
26.
| ¶4Although Focus intermittently contributed to the plan in the obligated amount, Focus has contributed nothing to the plan since 1999.
27.
This breach of the obligation to provide insurance premiums has violated explicit terms and conditions of the conventional obligation and has deprived Ms. McCall of benefits to which she is rightfully entitled pursuant to the contract.

In its exception of prescription, Focus argued that the annual $10,000 payment at issue constituted a form of wages or compensation, and, therefore, Ms. McCall’s claim regarding this annual payment is subject to the three-year prescriptive period set forth in La. C.C. article 3494. In her opposition to this exception, Ms. McCall argued that this claim was one for retirement benefits, not wages, and is therefore subject to the ten-year prescriptive period for personal actions set forth in La. C.C. article 3499.

La. C.C. article 3494 states, in pertinent part:

The following actions are subject to a liberative prescription of three years:
(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board.
La. C.C. article 3499 states:
Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.

A trial court’s determination of a prescriptive period is subject to a manifest error/clearly wrong standard of review. Friel v. Louisiana Citizens Property Insurance Corporation, 11-1032, p. 3 (La.App. 4 Cir. 2/8/12), 85 So.3d 180, 182. The employment agreement signed by Ms. McCall and Archbishop Hannan on December 31,1993 includes the following sentence, which forms the basis for Ms. McCall’s claim for alleged retirement benefits: “In addition to her salary an insurance policy with an annual premium of $10,000 will be funded in her name and on her behalf.” It is undisputed that Focus funded an insurance policy in Ms. McCall’s name, with an annual premium of $10,000, until Ms. McCall decided to surrender the policy and take receipt of its cash value in late 1999. Focus then made one more $10,000 payment, directly to Ms. McCall, at the end of 1999. No further $10,000 annual payments were made by Focus to Ms. McCall.

By granting Focus’ exception of prescription, the trial court apparently agreed with Focus’ argument that the $10,000 annual payment specified in Ms. McCall’s employment contract was a form of compensation subject to the three-year prescriptive period of La. C.C. article 3494, and not a retirement benefit as alleged by Ms. McCall. The employment contract does not designate this annual payment as a retirement benefit. The policy funded in Ms. McCall’s name was a life insurance policy with a cash surrender value. After Ms. McCall exercised her right to take the cash value of the policy in 1999, the one additional $10,000 payment by Focus in late 1999 was made directly to her and without any restrictions as to its use. The fact that this payment was placed into a mutual fund for purposes of Ms. McCall’s retirement (according to the testimony of her ex-husband, John Young) is not sufficient to classify it as anything other than | ^compensation. Furthermore, when Ms. McCall exercised her right to take the cash value of the insurance policy and then accepted the $10,000 payment from Focus made directly to her at the end of 1999, these actions constituted a tacit modification of the portion of the 1993 contract relating to the funding of an insurance policy in Ms. McCall’s name.

We find no error in the trial court’s conclusion that the annual $10,000 payments were an additional form of compensation for services rendered. At most, these annual $10,000 payments could arguably be characterized as contributions to a retirement plan, which the Louisiana Supreme Court has held to be a form of deferred compensation subject to the three-year prescriptive period of La. C.C. article 3494. See Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482, p. 8 (La.4/12/05), 898 So.2d 1260, 1266. Accordingly, we find no manifest error in the trial court’s ruling that Ms. McCall’s claims regarding the $10,000 annual payments referenced in her 1993 employment contract are subject to the three-year prescriptive period of La. C.C. article 3494.

In her next assignment of error, Ms. McCall argues that the trial court erred in not awarding her, at a minimum, $30,000 under her December 31, 1993 employment contract, representing three of the annual $10,000 payments discussed in her first assignment of error. We agree. Because we find that the trial court correctly held that Ms. McCall’s claims for these $10,000 annual payments are subject to a three-year prescriptive period, it follows that she is entitled to an award of $30,000 for the last three years of her employment at Focus.

| 17Ms. McCall preserved her claim for these payments through the filing of her initial lawsuit in this matter in federal court in 2007. Her lawsuit in federal court was filed on September 6, 2007, and was dismissed for lack of subject matter jurisdiction on April 20, 2009. McCall v. Focus Worldwide Television Network, Inc., 2009 WL 1046791 (E.D.La. April 20, 2009). According to La. C.C. article 3462, an action commenced in an incompetent court can interrupt prescription only as to a defendant served by process within the prescriptive period. See also Woods v. State, Department of Health and Hospitals, 08-0257 (La.App. 1 Cir. 6/6/08), 992 So.2d 1050. The record shows that on November 13, 2007, Philip Brooks, a director of Focus, signed a “Waiver of Service for Summons” as to Ms. McCall’s federal court lawsuit. Because the waiver of service was signed within the prescriptive period, prescription was continuously interrupted until the judgment of dismissal was signed in federal court on April 20, 2009. The instant state court lawsuit was timely filed on September 17, 2009.

We also find no merit in Focus’ argument that because the 1993 employment contract required WLAE to pay one-half of Ms. McCall’s salary, Focus should not be required to absorb WLAE’s portion of any payments owed to Ms. McCall. The evidence in the record establishes that after Focus discontinued its association with WLAE at the end of 1999 and until Ms. McCall’s employment was terminated in 2007, Archbishop Hannan, as President of Focus, assumed the obligation to compensate Ms. McCall for her services in the amount previously shared by WLAE and Focus. Additionally, the above-mentioned payment of [ 1R$10,000 made directly to Ms. McCall at the end of 1999 was issued on a Focus account and check.

Accordingly, the trial court judgment dismissing all of Ms. McCall’s claims must be amended to award her $30,000, representing three $10,000 payments for the last three years of her employment with Focus.

In her next assignment of error, Ms. McCall argues that the trial court erred in granting Focus’ exception of no cause of action as to her claim for what she charactei'izes as tenured employment, but what Focus characterizes as a claim for lifetime employment. Ms. McCall argues, in the alternative, that even if the term of her purported 2003 employment contract is found to be indeterminate, it is supported by “valuable consideration,” and is thus valid. The trial court granted Focus’ exception of no cause of action, apparently accepting Focus’ argument that Ms. McCall is seeking enforcement of an unenforceable lifetime employment contract.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093, p. 4 (La.App. 4 Cir. 5/21/08), 985 So.2d 837, 841. An appellate court reviews the granting of an exception of no cause of action de novo because it involves questions of law. Id., p. 2, 985 So.2d at 840. A review of Ms. McCall’s petition does not support her argument that she stated a cause of action to exempt 119her from the general prohibition in Louisiana against lifetime employment contracts. See La. C.C. article 2746 and 2747.

Furthermore, because the purported agreement relied upon by Ms. McCall would allow her to continue her employment at Focus “for as long as she desires,” this was a modification of the December 31, 1993 employment contract, in which she was obligated to perform certain work in exchange for compensation. La. C.C. article 1770 states:

A suspensive condition that depends solely on the whim of the obligor makes the obligation null.
A resolutory condition that depends solely on the will of the obligor must be fulfilled in good faith.

La. C.C. article 1770 became effective in 1985; the comments thereto noted that the article, which reproduced the substance of former Civil Code articles 2024, 2034 and 2035, eliminated the expression “potesta-tive condition,” but did not change the law. Black’s Law Dictionary (9th Edition) defines “potestative condition” as “[a] condition that will be fulfilled only if the obligated party chooses to do so.” This definition is followed by the following note: “Louisiana no longer uses this term, instead providing that this type of condition will render the obligation null. La. Civ.Code art. 1770.” Id.

The purported agreement would give Ms. McCall the sole authority to decide how long she continued her employment at Focus. This is a condition that would be fulfilled only if she chose to do so. The purported agreement relied upon by Ms. McCall would create a suspensive condition dependent solely on her whim. 12ftAn agreement with such a condition is a null obligation under La. C.C. article 1770. Thus, the trial court did not err in granting Focus’ exception of no cause of action as to Ms. McCall’s claim for tenured or lifetime employment.

In another assignment of error, Ms. McCall argues that the trial court erred in dismissing Ms. McCall’s re-vendicatory action for enforcement of the equipment/videotape contract. This claim was dismissed after trial on the merits. An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

The alleged contract to which Ms. McCall refers in this assignment of error was allegedly authorized by a resolution of the Focus Board of Directors on March 20, 2003. The alleged agreement, entitled “ARTICLE FOCUS 1” and signed by Archbishop Hannan and Ms. McCall, purports to transfer title and ownership of certain equipment, videotapes and other movable property from Archbishop Han-nan to Ms. McCall “for the amount of one dollar and other valuable consideration.”

Preceding the alleged agreement above was a separate page entitled Resolution of the Board of Directors of Focus Worldwide Network, which stated:

Be it known that the following attached Resolution ARTICLE FOCUS 1 was duly made and passed at the Board of Directors Meeting of FOCUS WORLDWIDE NETWORK ON March 20, 2003 THAT:

121 Contrary to the wording of this resolution, and the above-discussed purported resolution of March 20, 2003 authorizing Ms. McCall’s employment “for as long as she desires,” the evidence in the record is clear that no meeting of the Focus Board of Directors was held on March 20, 2003, nor was there any notice of such meeting sent to the Board of Directors. Furthermore, there is no evidence in the record proving that the Board of Directors later authorized or ratified the March 20, 2003 resolutions by either its actions or inac-tions.

The issue of whether or not a Board of Directors’ meeting was held on March 20, 2003 was addressed in Ms. McCall’s deposition in the following exchange:

Q. But you acknowledge that there was not a formal board of directors meeting relating to this resolution?
A. I acknowledge that we handled this like we handled other decisions that we made with the board.

The record includes affidavits of directors Charlene Vance, Philip Brooks, Charles Read and Archbishop Hannan, stating that no meeting of the Board of Directors was held on March 20, 2003, and that these resolutions were not authorized by the Board of Directors. At trial, Ms. Vance testified that no meeting was held on March 20, 2003. Ms. McCall testified at trial that she “believed” there was a meeting of the Board of Directors on that date, because it was Archbishop Hannan’s common practice to draw up resolutions, call the board members and have them approve the resolutions over the telephone. In her opinion, that constituted a meeting, and she believes such a meeting occurred on March 20, 2003.

122Given the overwhelming evidence that the agreement to transfer equipment and other movable property of Focus to Ms. McCall was not authorized at a Board of Directors’ meeting as stated in the resolution authorizing this agreement, we find no error in the trial court’s decision to dismiss Ms. McCall’s claim for the enforcement of this agreement. We also note that the other purported resolution of March 20, 2003, allowing Ms. McCall to continue her employment with Focus “for as long as she desires” was not authorized at a Board of Directors’ meeting as stated in the resolution and was not later authorized or ratified by the Board of Directors. Therefore, even assuming arguendo that Ms. McCall had stated a valid cause of action for this claim, which we conclude she did not, the purported agreement would be unenforceable. Although Ms. McCall correctly states that the minutes of a July 14, 1999 membership and Board of Directors’ meeting of Focus show that Archbishop Han-nan was granted “full power and authority to sign any and all documents,” the two purported resolutions of March 20, 2003 were nonetheless invalid. The agreements purporting to allow Ms. McCall to continue her employment at Focus “for as long as she desires” and to acquire property of Focus cannot be enforced because the agreements were not properly authorized by a valid corporate resolution or by any legal theory of corporate law.

In the final assignment of error, Ms. McCall argues that the trial court erred in denying her motion for partial summary judgment as to her allegedly improper removal as a corporate officer of Focus, while granting Focus’ cross-motion for summary judgment on the same issue. This argument refers to the April 25, 2011 | ^judgment, in which the trial court found that Charles Read was a member of the corporate membership “from April 29, 2002 to present,” and that the purported resolution submitted by Ms. McCall is invalid. The judgment referred to the purported resolution of the officers of Focus, dated March 21, 2003, removing Charles Read as an officer of the corporation. The resolution failed to address his removal as a member. In her motion for summary judgment, Ms. McCall sought a ruling that there is no material fact at issue that her termination as Vice President and Secretary of Focus was not properly authorized or consistent with the procedures for termination set forth in the Focus Articles of Incorporation.

An appellate court reviews summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882.

The record shows that on July 14, 1999, Archbishop Hannan signed the Amendment and Restatement of Articles of Incorporation of Focus Worldwide Television Network, Inc. According to this document, as of that date, the only members of the corporation were Ms. McCall and Archbishop Hannan. The Articles stated that the membership shall consist of those two members, “with such other additional members who are from time to time appointed by the membership of the corporation.” On April 29, 2002, in a document entitled “Unanimous Consent Agreement by the Members of Focus Worldwide Television Network, Inc., A Louisiana NonProfit Corporation,” Ms. McCall and Archbishop Hannan appointed Charles Read to be a member of Focus.

|24Ms. McCall contends that Mr. Read was removed as a member of Focus by resolution of the officers dated March 21, 2008. However, that resolution, signed by Ms. McCall and Archbishop Hannan, stated as follows:

Be it resolved that by a majority vote, Rusty Reed [sic] has been removed as an officer of the corporation of Focus Worldwide Network beginning on this day Friday March 21, 2003.

(Emphasis added).

Ms. McCall argues that the use of the word “officer” instead of “member” was merely a typographical error, and that Mr. Read was never an officer of Focus. But the fact remains that there is no evidence in the record showing that Mr. Read was properly removed as a member of Focus prior to the May 8, 2007 Focus Membership meeting, the notice of which shows that Ms. McCall’s name was not included on the slate of members, directors or officers of Focus to be elected or appointed at that meeting.

La. R.S. 12:225, relating to the governance of non-profit corporations, such as Focus, states, in pertinent part:

F. The articles may provide that only the members, or only a particular class or classes of directors, or only directors elected by the vote of a particular class or series of members, may elect certain or all of the officers, in which event officers so elected may be removed without cause only by the members or directors empowered to elect their successors.

Given the evidence offered in support of and in opposition to the motions for summary judgment filed by both parties on the issue of Mr. Read’s membership in Focus as of the May 8, 2007 Focus membership meeting, there is no question of fact that he was still a member as of that date, and that the March 21, 2003 1 ⅞-,resolution did not validly remove him as a member. Thus, Mr. Read was authorized to vote on the new slate of members, directors and officers at the May 8, 2007 meeting, a slate which did not include Ms. McCall’s name. Accordingly, the trial court correctly denied Ms. McCall’s motion for partial summary judgment and correctly granted Focus’ cross-motion for summary judgment, finding that Charles Read was a member of the Focus corporate membership from April 29, 2002 until the date of the judgment (April 25, 2011), and that the purported resolution removing Mr. Read is invalid.

For the reasons stated above, we affirm the trial court’s ruling that a three-year prescriptive period applies to Ms. McCall’s claims regarding the $10,000 annual payment referenced in the 1993 employment contract. We also affirm the trial court judgment denying Ms. McCall’s motion for partial summary judgment and granting Focus’ cross-motion for summary judgment, finding that Charles Read was a member of the corporate membership at the time of the May 8, 2007 Focus membership meeting and that the purported resolution submitted by Ms. McCall on that subject is invalid. We hereby amend the December 13, 2011 judgment, which dismissed all of Ms. McCall’s claims, to award her the sum of $30,000, representing $10,000 for each of the last three years of her employment at Focus, plus interest from date of judicial demand. In all other respects, we affirm the December 13, 2011 judgment.

AMENDED, AND AS AMENDED, AFFIRMED

      . According to the July 14, 1999 “Amendment and Restatement of Articles of Incorporation of Focus Worldwide Television Network, Inc.,” Focus is a Louisiana non-profit coipo-ration, “organized exclusively for charitable and/or educational purposes, including, for such purposes, the making of distributions to organizations which qualify as exempt organizations under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or the corresponding section of any future United States internal revenue law.”

      . Archbishop Hannan died on September 29, 2011.

      . At the end of 1999, Focus discontinued its use of the studios at WLAE, and the two corporations had no further association other than WLAE airing the FOCUS weekly television show,

      . Focus Syndicate, Inc. was a predecessor-in-interest of the Focus Worldwide Television Network, Inc.

      . Ms. McCall was the named insured and policyholder.

      . Focus contends that there was no "retirement plan” in the sense of an organized mechanism by which one would invest in and obtain retirement benefits. Ms. McCall argues that the "plan” is the above-quoted employment contract executed on December 31, 1993. The record is unclear as to what this "plan” was.

      . McCall v. Focus Worldwide Television Network, Inc., 2009 WL 1046791 (E.D.La. April 20, 2009).

      . La. C.C. article 3462 states: “Prescription is interrupted when the owner commences action against the possessor, or when the obli-gee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within a prescriptive period."

      . This Unanimous Consent Agreement was signed by Archbishop Hannan and Ms. McCall, who were the only 2 members of Focus prior to the appointment of Mr. Read.

      . As we discuss below in more detail, Ms. McCall contends that this purported resolution removed Mr. Read as a member. However, the document states that Mr. Read was being removed as an officer.

      . Ms. McCall did not present any assignments of error regarding the trial court’s granting of Ms. Vance’s exception of no cause of action.

      . Although this assignment of error was addressed last in Ms. McCall's brief, we are addressing it out of order because it relates to the previous assignment of error.

      . Although Ms. McCall claims that Mr. Read was removed by the other members, i.e., she and Archbishop Hannan, the purported resolution of March 21, 2003 is entitled "Resolution of the Officers of the Corporation of Focus Worldwide Network.” (Emphasis added.)


author: DANIEL L. DYSART, Judge. BONIN, J.,

text:
    Larry WILLIS v. Matthew M. BROOKS, Avenue D. Development, LLC, Magazine Street Interests, Stan Carpenter, Autozone Stores, Inc., Autozone Development Corporation, and Autozoners, LLC.
    No. 2012-CA-1674.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.
    John D. Miranda, Henry W. Kinney, III, Michael L. DeShazo, Kinney, Ellinghau-sen, Richard & DeShazo, New Orleans, LA, for Plaintiff/Appellant.

      Howard T. Boyd, III, James M. Garner, Paul R. Trapani, III, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, Coleman D. Ridley, Jr., Graham H. Ryan, Jones Walker Waechter Poitev-ent Carrere & Denegre, LLP New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

| 1Plaintiff-appellant, Larry Willis, appeals the trial court’s grant of two summary judgments, dismissing his claims against defendants-appellees, Autozone, Stan Carpenter, Matthew Brooks, Avenue D Developments, LLC, (“Avenue D”) and Magazine Street Interests (“MSI”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Larry Willis filed the instant lawsuit under the Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”) seeking actual damages for the loss of an alleged business opportunity, as well as treble damages, attorney’s fees and costs pursuant to La. R.S. 51:1409. Willis alleges that, as a commercial real estate developer, he discussed the purchase of a tract of land on Chef Menteur Highway with his “longtime acquaintance,” Richie Stevens, the then-owner of the property, contingent upon Willis’ ability to locate a commercial tenant to lease the 1 ^property. In connection with his intent to purchase and then lease the land to a commercial tenant, Willis provided defendant-appellee, Autozone, with a detailed “site submittal” to determine the latter’s interest in locating an Autozone store at the site. Willis alleges that Autozone, through its employee, Stan Carpenter, arranged to have one of its “real estate experts,” Matthew Brooks, meet with Willis at the site. Willis and Brooks met at the site in February, 2009, following which Brooks allegedly advised that Autozone would be interested in the property. Brooks indicated that he would contact Willis later for further discussions.

According to Willis, after several weeks during which he unsuccessfully tried to reach Brooks, he contacted Carpenter, who advised that Autozone was not interested in the property. However, in June, 2009, Willis learned from Stevens that the property had been sold to Avenue D, which intended to lease the property to a then-unidentified retail chain. Willis then learned that Brooks is either an employee of and/or has an ownership interest in Avenue D and MSI (alleged to be a company related to Avenue D), which purchased the property with the intent to lease it to Autozone.

Based on the foregoing allegations, Willis maintains that the defendants-appel-lees, knowing of his intentions with respect to the property, conspired with one another to allow Brooks, Avenue D and MSI to purchase the property and lease it to Auto-Zone, all of which deprived him of a business opportunity and [¡¡violated the LUT-PA. Willis maintains that the defendants-appellees’ actions were “unfair and/or deceptive acts and practices in the conduct of commerce.”

Two motions for summary judgment were filed: one by Brooks, Avenue D and MSI (collectively, “Brooks defendants”) and the other by Autozone and Carpenter. By judgments dated July 23, 2012 and October 22, 2012, respectively, the trial court granted both motions. Willis timely appealed both judgments.

STANDARD OF REVIEW

This Court recently reiterated the well-settled rule that appellate courts are to review the granting of a summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Serou v. Touro Infirmary, 12-0089, p. 48 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, 1100, writ denied, 13-0377 (La.4/1/13), 110 So.3d 588. Under La. C.C.P. art. 966(B), a summary judgment is to be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that [the] mover is entitled to judgment as a matter of law.”

Noting that summary judgments are favored and that the summary judgment procedure is designed to secure “the just, speedy and inexpensive determination of actions,” we summarized the parties’ burdens of proof in Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24 as follows:

The code provides that where the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its eviden-tiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

DISCUSSION

LUTPA prohibits “[ujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” La. R.S. 51:1405(A). A right of action is afforded to “[a]ny person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405.” La. R.S. 51:1409(A). LUTPA does not provide any guidelines as to what constitutes unfair methods of competition or unfair/deceptive acts or practices, and the courts are to decide, on a case-by-case basis, what conduct falls within the statute’s prohibition. Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633, p. 10 (La.4/23/10), 35 So.3d 1053, 1059, citing Dufau v. Creole Engineering, Inc., 465 So.2d 752, 758 (La.App. 5th Cir.1985), (In order to recover under LUTPA a plaintiff must prove “some element | fiof fraud, misrepresentation, deception, or other unethical conduct” on the part of the defendant).

As the Cheramie court explained, “under this statute, the plaintiff must show the alleged conduct ‘offends established public policy and ... is immoral, unethical, oppressive, unscrupulous, or substantially injurious.’ ” Id., pp. 10-11, 35 So.3d at 1059. (Emphasis added). See also, Lilawanti Enterprises, Inc. v. Walden Book Co., Inc., 95-2048, P. 6 (La.App. 4 Cir. 2/29/96), 670 So.2d 558, 561 (“A practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous, or substantially injurious.”); Dixie Sav. and Loan Ass’n v. Pitre, 99-154, p. 21 (La.App. 5 Cir. 7/27/99), 751 So.2d 911, 923 (“For conduct to be unfair it must offend established public policy”).

The Cheramie court noted that the range of prohibited practices under LUT-PA is extremely narrow, citing Turner v. Purina Mills, Inc., 989 F.2d 1419, 1422 (5th Cir.1993), for the principles that:

LUTPA does not prohibit sound business practices, the exercise of permissible business judgment, or appropriate free enterprise transactions. The statute does not forbid a business to do what everyone knows a business must do: make money. Businesses in Louisiana are still free to pursue profit, even at the expense of competitors, so long as the means used are not egregious. Finally, the statute does not provide an alternate remedy for simple breaches of contract. There is a great deal of daylight between a breach of contract claim and the egregious behavior the statute proscribes. [Citations omitted.]

Id., p. 11, 35 So.3d at 1060. See also, JCD Marketing Co. v. Bass Hotels and Resorts, Inc., 01-1096 (La.App. 4 Cir. 3/6/02), 812 So.2d 834.

Our jurisprudence reflects that violations of LUTPA will be found when there is a clear showing of fraud, misrepresentation, deception, or other unethical conduct. In Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, for example, this Court affirmed the trial court’s denial of an exception of no cause of action in a case by a local distributor against other distributors and a manufacturer which allegedly conspired to cause the manufacturer to cancel its distributorship. The Court found that because “[d]e-fendant’s conduct allegedly violates the antitrust laws, a valid LUTPA claim has been stated.” Id., p. 22, 862 So.2d at 286.

Similarly, in Camp, Dresser & McKee, Inc. v. Steimle and Associates, Inc., 94-547 (La.App. 5 Cir. 2/15/95), 652 So.2d 44, the Court concluded that a prima facie showing of a LUTPA violation was made where an engineering firm hired a detective agency to rummage through a competitor’s trash dumpsters, then released for publication by local newspapers “selective and misleading information.”

Conversely, in JCD Marketing Co., supra, this Court found no violation of LUT-PA where the defendant-hotel allegedly misrepresented “the availability of rooms and purposefully induced JCD to rely on those misrepresentations to ensure the Hotel’s rooms were fully booked.” In rejecting the plaintiffs argument that the defendant’s conduct was “unscrupulous,” the Court noted that our jurisprudence “has declined to find LUTPA violations when the alleged conduct was simply a ‘normal business relationship.’ ” Id., p. 12, 812 So.2d at 842.

Likewise, in Cajun Restaurant & Bar, Inc. v. Maurin-Ogden 1978 Pinhook Plaza, 574 So.2d 536, 538 (La.App. 3 Cir.1991), the defendant sued plaintiff, its tenant, for past-due rent and obtained a judgment in its favor. After the sheriff seized plaintiffs movable property, the defendant purchased it at a sheriffs sale. Rejecting a claim under LUTPA, the Third Circuit held that “the Sheriffs sale was not part of any unfair trade practice ... This bidding can[not] be ... an unfair trade |7practice because it was entirely permitted by our law.... This entirely proper use of legal process is not part of any unfair trade practice.... ”

Our jurisprudence further reflects that mere conclusory allegations of LUTPA violations are insufficient to sustain a claim under the statute. See, e.g. Lilawanti, supra, 670 So.2d at 561 (plaintiffs conclu-sory allegations that lessors’ refusal to consent to a sublease “was against moral rules and good faith, was unethical, oppressive, and unscrupulous and ... offended public policy,” where two co-owners attested that the sublease “was not as economically beneficial” were insufficient to establish a LUTPA claim); Van Hoose v. Gravois, 11-0976, p. 9 (La.App. 1 Cir. 7/7/11), 70 So.3d 1017, 1023 (plaintiff, an insurance agency, which exclusively sold for one insurer, failed to establish a claim under LUTPA, where insurer essentially threatened to “shut down” the agency if policyholders transferred their policies and thereafter blocked all transfers of policies, as plaintiffs claims of conspiracy and injury to competition were “broad and conclu-sory” and failed to set forth a cause of action of an antitrust violation).

In the instant matter, the trial court issued no written reasons for judgment; however, the trial court found no genuine issues of material fact and concluded that Willis failed to establish a LUTPA claim, primarily based on three findings: (1) plaintiffs prospective business opportunity was not exclusive and did not preclude Brooks from purchasing the property directly from Stevens; (2) Brooks’ interest in the property predated plaintiffs involvement as evidenced by his July 10, 2008 call log; and (3) the verbal agreement between Stevens and Willis was not reduced to writing pursuant to La. C.C. art. 1839.

1 ^Willis does not allege that defendants-appellees violated any statute, other than LUTPA, and cites no particular established public policy that defendants-appel-lees violated in their dealings with him. The crux of Willis’ case is that he apprised Autozone and Brooks of the existence of the property and that Autozone and Brooks “intentionally deceived and misrepresented ... their true intentions in order to secure an unfair advantage in the acquisition of Willis’ property development proposal.”

Having conducted a de novo review of the record, we find that the Brooks defendants and Autozone are entitled to summary judgment. As discussed more fully below, the record does not support the type of conduct on the part of either the Brooks defendants or Auto-Zone that falls within the “extremely narrow” range of prohibited practices under LUTPA. Rather, the record supports the trial court’s finding that the business opportunity proposed by Willis, as even Willis admitted, was not exclusive and did not preclude Autozone from purchasing the property from Stevens. Simply put, Willis cannot establish facts giving rise to a LUTPA claim.

Turning to the evidence in the record, we first note that no one disputes that Willis and Stevens discussed Willis’ purchase of the property subject to his being able to locate a commercial tenant, although Stevens clearly testified that he would have sold the property “to anyone” willing to buy, as his verbal agreement was not exclusive. There is also no dispute that this was merely an informal agreement between the two or that Willis and Stevens never entered into a contract. There is equally no dispute that Willis never had any interest in or control of the property. When directly asked whether he had any interest in the property, other than a verbal agreement, Willis responded that he had none. Moreover, Willis 1 ^acknowledged that he had no exclusive right to the property, as reflected by the following exchange:

Q. Did you ask Mr. Stevens to keep the property off the market while you looked for a tenant?
A. No.
Q. Did Mr. Stevens tell you he would keep the property off the market while you looked for a tenant?
A. No.
Q. Did Mr. Stevens tell you he would not sell the property to anybody other than you?
A. No.

According to Carpenter’s deposition testimony, in June, 2008, Autozone began considering a return to the New Orleans East area and particularly, to the area where its store had been located prior to Hurricane Katrina on Chef Menteur Highway. In furtherance of that endeavor, Carpenter contacted Brooks in June, 2008 and asked Brooks to look for property at which an Autozone store could be developed. Carpenter came to Louisiana in June, 2008, at which time he and Brooks drove around that area “in an effort to identify property” suitable for an Autozone store. The property that is the subject of this litigation “was one of many” properties they viewed at that time.

Thereafter, on July 10, 2008, and according to Brooks’ cell phone records, Brooks placed a call to Stevens’ work place. While Stevens did not recall ever having spoken with Brooks, he confirmed that several others also answer the phone and could have answered the phone that day.

|! (According to his testimony, Carpenter returned to the New Orleans area in October, 2008. He came back in December, 2008, at which time he, Brooks and another Autozone employee Kendrick Hickman, “walked the property” at issue in this litigation and took pictures of it.

The record reflects that the next activity took place when Willis obtained a “Property Form” for a potential site for an Auto-Zone store from Autozone’s website, filled it out on behalf of Lynnco, Inc. (a company solely owned by Willis’ wife) and emailed it to Carpenter on January 13, 2009. Thereafter, Willis spoke with Carpenter, who directed him to contact Brooks.

Willis testified that, at either the end of January of the beginning of February, 2009, he met Brooks at the property. Willis admitted that, at this meeting, he told Brooks that “Stevens and [he] were friends and [he] had an agreement with [Stevens] to purchase the property.” Willis could not recall whether he told Brooks that this agreement was only a verbal agreement.

Willis then testified that Brooks advised that he would have a preliminary site plan drawn up. Brooks did not deny that he advised Willis that he would present the property to Autozone and if it was interested, “they could move forward if [Willis] had it under contract.” Again, Brooks reiterated that he “had talked to Autozone previously about the site.” According to Willis, however, “a couple of days” after he met with Brooks, or “[he didn’t know] how long” later, Carpenter told him that Auto-Zone was no longer interested in the property.

In the meantime, as reflected by the record, and consistent with Carpenter’s statement to Willis that Autozone was no longer interested in the property, | nAutozone was actively pursuing the reestablishment of a store at the location it occupied prior to Hurricane Katrina. Both Carpenter and Carter Jacquet, the owner of the property where Autozone’s store had previously been located, testified that in January, 2009, they were discussing Autozone’s leasing Jacquet’s property. As evidenced by a January 22, 2009 email, Carpenter received committee approval from Autozone to pursue Jacquet’s property. Carpenter then sent an email to Jac-quet dated February 2, 2009, asking for further information about Jacquet’s property so that they could “begin to negotiate a lease.” Lease negotiations for Jacquet’s property failed, although the date on which those negotiations ceased is unclear.

The record is devoid of any documentary evidence of anything transpiring between that February 2, 2009 email from Carpenter to Jacquet and June, 2009, when Brooks contacted a local real estate agent, Joe Gorman, by email and asked that he look into Stevens’ property to “see if the property is still under contract” and, if so, “when the contract expires.” Brooks advised that Autozone was “on [him] to get the property under contract.”

According to Brooks, in May, 2009, Carpenter contacted him again, advised that it was unable to negotiate a deal with Jac-quet and asked that he return to the Chef Menteur area and determine what was available. Brooks met with Gorman and they evaluated multiple sites, including Stevens’ property. Gorman then made an offer on Stevens’ property, and ultimately, Autozone purchased the property.

|1gBased on the foregoing, we find that Willis has failed to demonstrate the existence of material facts which would establish a violation of LUTPA. While Willis has made conclusory allegations of unfair and deceptive practices by the Brooks defendants and Autozone, those allegations are not supported by the record. The record demonstrates that Brooks and Au-tozone were aware of the property, having viewed it more than once before Willis submitted the property form to Autozone in January, 2009. Likewise, Willis did not deny that he told Brooks he had the property under contract and notably, he could not recall whether he advised that the “contract” he had was only a verbal, informal agreement.

Willis makes much of the fact that the offer to purchase the property was made by Avenue D, which did not disclose for whom the offer was being made, and suggests some nefarious purpose on Brooks’/Autozone’s part in this regard. We note, however, that Stevens testified that Willis, too, initially would not disclose who his potential commercial tenant would be. When asked if Willis identified his potential tenant, Stevens testified that “at that time [Willis] didn’t want to — another one didn’t want to tell me who his person was.”

Again, while Willis makes general allegations of unscrupulous conduct, the record does not reflect conduct on the part of the Brooks defendants and/or Autozone that rises to the level of a LUTPA violation. Rather, we find their conduct to fall within the range of “the exercise of permissible business judgment, or appropriate free enterprise transactions,” as referenced by the Cheramie court, rather than the “extremely narrow” range of practices prohibited by LUTPA.

| igFor these reasons, and those discussed above, the judgment of the trial court is affirmed.

AFFIRMED

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

hi concur. Mr. Willis has established that genuine issues of material fact exist such that the defendants’ conduct could be found to be unethical, fraudulent, immoral, unscrupulous, deceptive and even collusive. But he has not shown that the defendants’ conduct offends established public policy in such a commercial real estate transaction. See Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633, p. 10 (La.4/23/10), 35 So.3d 1053, 1059. Because offending established public policy is an essential element of a claim under LUT-PA, the absence of factual support for that essential element is fatal to Mr. Willis’ claim. See La. C.C.P. art. 966 C(2).

      . We refer to the three Autozone defendants (Autozone Stores, Inc., Autozone Development Corporation and Autozone, LLC), collectively, as "Autozone.” All three of the entities are alleged to be foreign companies licensed to do, and doing business in Louisiana.

      .Carpenter is alleged to be a resident of Tennessee.

      . While Willis’ Petition does not state the date of this discussion, in his deposition, he stated that he thought it was in early December, 2008.

      . In his Answer, Brooks admits to being an employee of Avenue D.

      . The Brooks defendants previously filed Peremptory Exceptions of No Cause of Action and No Right of Action, while Autozone/Car-penter filed a peremptory Exception of No Cause of Action or Alternative Motion for Summary Judgment. The Brooks defendants then adopted Autozone/Carpenter's exception/motion. By judgment dated January 18, 2012, the trial court denied the exceptions of no cause of action and deferred a ruling on the motion for summary judgment pending further discovery.

      . These were the trial court’s reasons given at the hearing on the Brooks defendants’ Motion for Summary Judgment. Virtually identical reasons were articulated at the hearing on Autozone/Carpenter’s Motion for Summary Judgment as well.

      . Carpenter confirmed that Autozone had a business relationship with Brooks since 2006.

      . In fact, Brooks, on Autozone's behalf, entered into a contract for different piece of property in August, 2008, which was canceled in November, 2008, after Carpenter and another Autozone employee, Kendrick Hickman, had come to New Orleans and decided they would prefer a different location.

      .The Property Form states that "[Autozone] accept[s] submittals from brokers only when the submitting broker has a written agreement with the owner of the property.”

      . Autozone’s negotiations to return to its former location did not involve Brooks.

      . The record contains only a few pages of Jacquet's deposition.

      . There appears to be a dispute as to the reasons lease negotiations ceased; however, the reasons are inconsequential. The lease negotiations simply corroborate Carpenter’s and Brooks’ testimony that Autozone was actively pursuing its original site location, as they advised Willis.

      . This email corroborates Brooks’ impression that Willis had the property under contract.

      . Willis suggests some nefarious motive on Brooks’/Autozone’s part in making the initial offer to purchase on behalf of Avenue D, without disclosing that the ultimate purchaser would be Autozone. We note that Stevens testified Willis, too, initially would not disclose who his potential commercial tenant would be. When asked if Willis identified his potential tenant, Stevens testified that “at that time [Willis] didn't want to — another one didn’t want to tell me who his person was.”


author: ROLAND L. BELSOME, Judge.

text:
    SUCCESSION OF Irma Ziegler COMBERREL, Widow of Floyd Joseph Comberrel v. Jeaneen COMBERREL, Dianne Ashbey, and Cynthia Melito.
    No. 2012-CA-1589.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Daniel A. Ranson, Steven D. Oliver, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Plaintiff(Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   ROLAND L. BELSOME, Judge.

| ,The appellant is seeking reimbursement of succession funds that were disbursed outside of the succession proceedings. The trial court found that the funds were wrongfully disbursed and ordered a portion of the proceeds to be returned to the succession. For the reasons that follow, this Court finds that the trial court erred when it determined that the appel-lees were jointly and divisibly liable for less than one hundred percent of the proceeds. We find the appellees are liable in solido for one hundred percent of the unlawfully gained succession proceeds.

Irma Ziegler Comberrel died intestate on January 12, 2002. At the time of her death, she was survived by her three daughters from her first marriage to Lewis Ashbey, the defendants/appellees, Jeaneen Comberrel, Dianne Ashbey, and Cynthia Melito. Mrs. Comberrel was predeceased by the one child she had with her late husband, Floyd Joseph Comber-rel, Floyd Joseph Comberrel, Jr.

Floyd Joseph Comberrel, Jr., who died on August 3, 1983, had two children: Janell Comberrel Rashleigh and Carey Leigh Comberrel (Floyd’s children). As the surviving children and grandchildren of Mrs. Comberrel, the defendants/appellees | ?and Floyd’s children are her sole intestate successors and heirs, entitled to ownership of all of the property belonging to Mrs. Com-berrel’s succession. The three surviving daughters are entitled to one-fourth each and Floyd’s children are entitled to one-eighth each.

At the time of her death, Mrs. Comber-rel had several accounts on deposit at Regions Bank and Hibernia Bank. Prior to her death, Mrs. Comberrel did not execute any written document donating the accounts or the funds held therein to her daughters. The daughters did not contribute anything to the funds on deposit or pay any taxes on the interest earned on the accounts. Mrs. Comberrel claimed all of the interest earned on these accounts as personal income on her tax returns.

Following Mrs. Comberrel’s death, her daughters appeared at Regions Bank and withdrew all of the funds held in four of the accounts. The women divided the proceeds equally amongst the three of them to the detriment of the other legal heirs. Then in April of 2002, the daughters went to Hibernia National Bank and withdrew all but $5,000.00 of the funds on deposit. Again, the proceeds were distributed equally amongst the women.

At the time of Mrs. Comberrel’s death, her five Certificates of Deposit had a combined face value of $205,170.30. Together with the interest that had accrued on the Certificates of Deposit through the date that the daughters cashed them in, the total amount that they withdrew from the various Certificates of Deposit was $207,153.48. The balance of Mrs. Comber-rel’s checking account at Hibernia National Bank as of her death was $25,744.59. Her daughters withdrew |aall but, $5,000.00, or $20,744.59, from that account. In all, the daughters removed a total $227,898.07 from Mrs. Comberrel’s accounts. The funds were withdrawn from the accounts without a succession being opened. Therefore, the daughters had not qualified as administrators of her succession, or been judicially placed into possession of the estate.

In March 2006, Janell Comberrel Rash-leigh qualified as Administratrix of the successions of both Mrs. Comberrel and Floyd Joseph Comberrel, and Letters of Administration were issued to her. As Administratrix of the Succession of Mrs. Comberrel, Ms. Rashleigh filed a Petition for Accounting, and for Recovery of Succession Property in Jefferson Parish. Subsequently, that suit was transferred to St. Bernard Parish and consolidated with the succession proceedings.

After a bench trial, rendering of judgment and the granting of a motion for new trial for purposes of reargument, the trial court assigned a special master to file a report on the contested issues. Once the report was received, the trial court set a hearing to show cause why the report should not be adopted as the judgment of the court. Thereafter, judgment was rendered adopting the findings of the special master. As per the judgment, the trial court determined that the funds that the daughters had removed from Mrs. Com-berrel’s accounts were property of her succession, but the trial court only ordered a portion of the funds returned to the estate for administration. The daughters were each found “... jointly and divisibly liable for the return of $17,262.79 plus accrued interest representing the excess each received of their one-fourth (1/4) shares of the Certificate of Deposit proceeds |4to the Succession of Irma Ziegler Comberrel ...” and . jointly and divisibly liable to the Succession of Irma Ziegler Comberrel for the amount of $1,729.00 representing the excess each received of their one-fourth share of the Hibernia checking account proceeds.”

On appeal, the appellant argues that 1) the trial court erred in failing to award the Succession of Irma Ziegler Comberrel the total amount of funds of the succession improperly taken by the defendants; and 2) the trial court erred in failing to hold the defendants solidarily liable for the return of the funds.

Prior to distributing succession proceeds to the rightful heirs, all debts, liabilities and administrative expenses of the estate must be satisfied. La.C.C.P. art. 3191 and La. C.C. art. 871. This requirement necessitates the return of all wrongfully taken proceeds.

Recently, the Fifth Circuit was presented with this issue in Succession of Banks, 11-26 (La.App. 5 Cir. 6/29/11), 71 So.3d 1086. In Banks, the executor of the estate, the decedent’s son, filed suit against his sister to recover wrongfully taken funds. Id. The lower court ordered only a portion of the wrongfully gotten proceeds returned in an effort to equalize the payments to the heirs outside of the succession. Id. The appellate court found that it was error for the trial court to try and equalize payments outside of the succession and recognized that all amounts owed the succession should be returned in toto for the executor to distribute. Id.

We agree with that finding in Banks. More specifically, we find that full reimbursement is required for the administra-trix to fulfill her duties. Heirs cannot | sbe allowed to circumvent the legal procedures dictated by succession law while taking funds for themselves to the detriment of the estate and other heirs.

Likewise, we find that the trial court erred in holding the defendants jointly and divisibly liable for the reimbursement of the funds. The Louisiana Civil Code provides that: “[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.” La.C.C. art. 2324(A). This Court has previously held that to prove conspiracy a plaintiff must show a meeting of the minds or collusion between the parties. Thomas v. North 40 Land Development, Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174.

In the instant case, it is undisputed that the daughters acted in concert. The certificates of deposit clearly named all three daughters jointly as payees, which required all three to participate in withdrawing the funds. Dianne Ashbey, and Jean-een Comberrel, and Cynthia A. Melito knowingly and intentionally worked together to convert funds from their mother’s estate to the detriment of other heirs. They are therefore solidary obligors in the damage which resulted from that act.

For the reasons discussed, we find the trial court erred in finding Jeaneen Com-berrel, Cynthia Melito, and Dianne Ashbey each jointly and divisibly liable for the return of less than one hundred percent of the proceeds to the succession. Accordingly, we reverse the trial court’s ruling and find that Jeaneen Comberrel, Dianne Ashbey, and Cynthia Melito are solidarily liable to the Succession of Irma Ziegler Comberrel for $227,898.07 plus legal interest from the date the funds were withdrawn until paid.

| fiREVERSED AND RENDERED

      . La.C.C.P. art. 3191 reads in pertinent part:
      A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law.