author: WILLIAMS, J.

text:
    Kailash K. DHALIWAL, and the Succession of Manmohan S. Dhaliwal, Plaintiff-Appellant v. Karminderdal S. DHALIWAL and Dhillon Sookham, Defendant-Appellee.
    No. 48,034-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 11, 2013.
    Rehearing Denied Nov. 14, 2013.

      Sedric E. Banks, Monroe, LA, Robert A. Lee, West Monroe, LA, for Appellant.
    Charles H. Heck, Sr., Charles H. Heck, Jr., Monroe, LA, for Appellee.
    Before WILLIAMS, CARAWAY and PITMAN, JJ.
   WILLIAMS, J.

12Plaintiffs, Kailash K. Dhaliwal and the succession of her late husband, Manmohan S. Dhaliwal, appeal the district court’s ruling granting defendants’ peremptory exception of prescription/peremption and motion for summary judgment. The district court also denied plaintiffs’ motion for partial summary judgment. For the following reasons, we reverse and remand this matter to the district court for further proceedings.

FACTS

On February 9, 2011, Dr. Kailash K. Dhaliwal (“Kailash”) and the succession of her late husband, Dr. Manmohan S. Dhali-wal (“Manmohan”) (“plaintiffs”) filed a lawsuit against their son and daughter-in-law, Karminderdal S. Dhaliwal (“Karl”) and Dhillon Sookham (“Sookham”), respectively. Plaintiffs alleged that Kailash, Manmohan and Karl entered into a joint venture to purchase and operate convenience stores in Ouachita Parish.

In their petition, plaintiffs also alleged that Kailash and Manmohan began their careers as salaried professors at Alcorn State University in Mississippi. Manmo-han purchased a vacant commercial lot in Jackson, Mississippi, on which to build a convenience store in 1979. Soon thereafter, Kailash, Manmohan and Karl entered into an oral agreement, pursuant to. which Manmohan deeded equal one-third interests in the vacant lot to himself, his wife and Karl, who was unmarried at that time. The parties were unable to obtain financing to build a convenience store at that location. Therefore, Kailash purchased a leasehold interest and inventory in | (¡another convenience store. According to plaintiffs, Karl was 23 years old, unemployed and fully supported by his parents. Nonetheless, the parties orally agreed that Karl would assume primary responsibility for managing and operating the store on weekdays. Kailash and Manmohan managed the business on weekends, summer vacations and school holidays. Kailash and Manmohan continued to teach and provide capital to the business. Each of the three “partners” worked in the store without pay.

In 1980, the parties sold the original store. That same year, Kailash purchased a larger convenience store. Again, Karl did not contribute any capital toward the purchase. The operation of this store was the same as that of the prior store: Karl operated the store on weekdays; Kailash and Manmohan operated the store on weekends, summer vacation and school holidays. The parties worked without pay; they all agreed to reinvest all profits into the business. The store operated for approximately three years. Thereafter, the parties closed the store and sold the inventory. However, they retained ownership of the location' and began to collect rent from another party.

In 1982, the parties purchased a convenience store, High’s No. 1, in Monroe, Louisiana. The business was licensed in Kai-lash’s name; however, the deed to the property was in Karl’s name. The majority of the purchase price, $155,000, was derived from the rents, sales and profits from the two Mississippi stores; the remaining balance was financed by the seller, Freddy Oliveaux.

LManmohan and Kailash continued to teach in Mississippi, while Karl operated the store in Monroe on weekdays. Subsequently, Manmohan and Kailash granted Karl power of attorney to act in their best interests. Karl handled all of his parents’ electronic banking needs while managing the business. All three “partners” continued to operate the store in the same manner as they operated the Mississippi stores (Karl on weekdays; Manmohan and Kai-lash on weekends, summers and school holidays). According to plaintiffs, they all agreed to reinvest all monies into the business, rather than distributing profits.

Thereafter, the parties purchased a vacant lot in Monroe and built High’s No. 2. In order to finance this purchase, the parties used rental income profits from the Mississippi store and cash contributed by Manmohan and Kailash, who also mortgaged their home.

In 1993, Manmohan and Kailash retired from teaching, moved to Monroe and began working at the stores full-time without pay. They also transferred to Karl commercial and residential real estate in Mississippi and New Mexico. By this time, Karl had married Soókham and began purchasing more and more stores. Over time, Karl, Sookham and/or business entities owned fully or in part by them, acquired 17-19 stores in Ouachita Parish.

After they retired from teaching, Man-mohan and Kailash worked full-time in the first two stores, without pay, until 1999. Manmohan died June |s21, 2010. By this time, Kailash was 87 years old and in frail health. Within days of Manmohan’s death, Karl informed Kailash that he and Sook-ham owned 100% of the convenience store enterprise. At that time, Kailash canceled Karl’s power of attorney.

On February 9, 2011, Kailash and the succession of Manmohan filed a “Petition for Breach of Fiduciary Duty, Wrongful Conversion of Properties, Accounting and Recovery of Damages.” They prayed for a judgment ordering Karl and Sookham “to provide and furnish a detailed accounting of all business of the venture, including all assets, profits, rents and revenues from the inception of ‘High’s No. 1’ convenience store to date, and that all such assets, profits, rents and revenues be declared and adjudged rightfully belonging to. the venture” in which Kailash and Manmohan each owned a one-third interest, “with the remaining one-third interest in such venture owned jointly by defendants,” Karl and Sookham. Plaintiffs also prayed for a judgment against Karl and Sookham, in solido, for “all just sums, losses and damages as are determined fair and just by the trier of fact.”

Subsequently, on May 14, 2012, plaintiffs moved for partial summary judgment, seeking a declaration that Manmohan, Kai-lash and Karl were equal partners in a joint venture. Plaintiffs contended that the parties had |fiunresolved discovery issues. The court ordered defendants to appear on June 14, 2012, and show cause why the motion should not be granted.

On June 14, 2012, a hearing on a motion to compel was held. Thereafter, the hearing on the motion for summary judgment was scheduled for July 6, 2012. Subsequently, on June 19, 2012, defendants filed a peremptory exception of prescription/peremption and a motion for summary judgment. Thereafter, plaintiffs were ordered to appear on July 6, 2012, to show cause why defendants’ motion for summary judgment and exception of preseription/peremption should not be granted.

On July 5, 2012, plaintiffs’ counsel hand delivered to the district court written objections to the trial on the exceptions, contending defendants violated LSA-C.C.P. art. 1571 and Louisiana District Court Rule 9.14 by failing to file a “pink slip,” requesting that the matters be fixed for trial. Plaintiffs’ counsel contended that because the pink slip was not filed, plaintiffs did not learn that the exceptions were fixed for trial until the day before the trial date. According to plaintiffs’ counsel, the district court faxed the order fixing the exceptions for trial to counsel’s office after 8:00 p.m. on July 3, 2012. Counsel argued that by the time the court’s order arrived, his office had closed for the Fourth of July holiday.

|7The court overruled plaintiffs’ objections to fixing the hearing date, and the hearing was conducted on July 6, 2012, as scheduled. In so ruling, the district court stated:

[Plaintiffs’ counsel] had raised [an] objection to addressing the exceptions on the basis that you got faxed notice. That’s on me. I didn’t get into the stack of stuff and sign that until late so I had it faxed, but the summary judgment was known to be set today.
And I’ve read your memorandum in opposition to the exceptions. Seems to me-seems to me you addressed the matter.
But I want to tell you though I’m not inclined to honor your objection to taking the matter up[.]

At the conclusion of the hearing, the court took the exception of prescription/peremption and cross motions for summary judgment under advisement.

On July 12, 2012, the district court issued written reasons for judgment sustaining defendants’ exception of prescription/peremption. The court stated:

The evidence does not show that there was a meeting of the minds resulting in the formation of an oral joint venture or partnership, entitling Plaintiffs to a one-third interest in even the first two Monroe stores, not to mention the other 16 or so stores.
Even if the evidence could somehow be so construed, the delay for suing to claim the two-thirds share of profits Plaintiffs allege they are due has long-since passed. No distribution of profits has ever happened. And Plaintiffs knew the stores were profitable.
Defendants have argued that no oral joint venture was formed or proven and that, even if a joint venture had been formed, Plaintiffs had to timely file to claim any entitlement to profits. The delay for suing for profits 1 ^provided in La. R.S. 12:1502 is not subject to suspension or interruption except by timely filing suit. [LSA-R.S. 12:1502(E) ]. This suit was not timely filed.

In a footnote, the district court stated:

This ruling makes it unnecessary for the Court to write a ruling on either Plaintiffs’ Motion for Partial Summary Judgment or Defendants’ Motion for Summary Judgment. However, if the Court were called upon to rule on these Motions it would DENY Plaintiffs’ motion and GRANT Defendants’ motion.

On July 16, 2012, the court issued a supplemental ruling on the exception of prescription/peremption, stating:

[T]he Court notes that, despite the fact that Plaintiffs sued Karl and Sookham Dhaliwal individually, the evidence showed that the convenience stores largely, if not entirely, are owned and/or operated by corporate entities. For that reason, the Court is persuaded that LSA-R.S. 12:1502, as [it] relates to claims against corporate entities, is applicable, and that the delays for prescription and peremption apply to the facts of this case.
However, the court finds, alternatively, that if [LSA-R.S. 12:1502] does not apply, for whatever reason, then it holds that LSA-C.C. art. 3492, relative to tort claims (one year) and LSA-C.C. art. 3499, relative to contract claims (10 years) do apply to the conversion and breach of contract type claims alleged in Plaintiffs’ petition. Applying these Code provisions to the facts found by the Court results in the same outcome: all claims alleged by Plaintiffs have prescribed.
[T]he Plaintiffs’ generosity toward Karl in the form of cash investments, labor, donations of stock and other property and the like was not solely gratuitous, but at least partly onerous. There was an expectation on the part of Karl’s parents that he would help them financially if they fell in need. However, that expectation is not legally enforceable, except to the extent that LSA-C.C. Art. 229 provides that children are obligated to support needy parents.

|9On July 30, 2012, plaintiffs filed a motion for new trial, arguing that the district court violated the Code of Civil Procedure and the local rules of court by setting the hearing on the exception of prescription/peremption without requiring defendants to file the requisite pink slip. Thereafter, on August 9, 2012, defendants filed a “Request for Ruling on Summary Judgments,” stating, in part:

3.
In the July 12, 2012 ruling, the Court noted that its Ruling on the Exception of Prescription made it unnecessary for the Court to write a ruling with respect to either Plaintiffs’ Motion for Partial Summary Judgment, or Defendants’ Motion for Summary Judgment. The Court noted that if it were called upon to rule upon the Motions, it would DENY Plaintiffs’ motion and GRANT Defendants’ motion.
4.
Although the Court has indicated what it would do with respect to the Motion[s] for Summary Judgment, no formal disposition of the Summary Judgments was ever rendered.
6.
If Plaintiffs decide to take an appeal, the Court of Appeal’s review of this matter will be limited to the Exception of Prescription/Peremption, as there has been no formal adjudication of the Summary Judgments, although the Court has already determined the seminal issues therein, and has expressed what it would do were it to rule with respect to the same.
7.
Although Defendants completely agree with the Court’s ruling with respect to the Exception of Prescription/Peremption, it would make sense that the Court issue an additional ruling with respect to the Summary Judgments so that, in the unlikely event the Appellate Court were to find fault with the Prescription ruling, they could then review the Summary Judgment de novo without having to remand the matter for re-urging, | inand without the cost and delay that would come therewith.

Following a hearing, the district court denied plaintiffs’ motion for new trial. On September 20, 2012, the court issued a “Judgment on Defendants’ Request for Ruling on Motions for Summary Judgment.” The court stated:

Defendants’ Request for Ruling on Summary Judgment, likewise, came to be heard on August 24, 2012. The court over-ruled plaintiffs’] objections to summary judgment rulings requested by Defendants at plaintiff[s’] motion for new trial, as well as plaintiff[s’] objections to summary judgment rulings on the merits, coming after the court had entered judgment on defendants’] peremptory exceptions dismissing plaintiffs]’ claims with prejudice on July 12, 2012. The court, considering evidence, memorandum and arguments of counsel, found ... in favor of defendants’ motion for summary judgment and against plaintiffs’] motion for partial summary judgment.]
* * *

These reasons for judgment were not signed by the district court judge. However, the judge signed a judgment granting defendants’ motion for summary judgment and denying plaintiffs’ motion for partial summary judgment.

Plaintiffs appeal.

DISCUSSION

Plaintiffs contend the district court erred in fixing defendants’ exception of prescription/peremption for trial, without requiring defendants to file the requisite “Pink Slip.” Plaintiffs argue that the court’s decision to fix the trial date violated the provisions of LSA-C.C.P. art. 1571 and 11 Louisiana District Court Rule 9.14, and deprived plaintiffs of the right to prepare for the trial and to present evidence.

Due process at a minimum requires that the deprivation of life, liberty or property be preceded by notice and an opportunity to be heard at a meaningful time. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Little v. Pou, 42,872 (La.App.2d Cir.1/30/08), 975 So.2d 666, writ denied, 2008-0806 (La.6/6/08), 983 So.2d 920. The notice given must be reasonably calculated under all circumstances to apprise interested parties of the pendency of the action and afford them an opportunity to present their objection. Id.

LSA-C.C.P. art. 1571 requires district courts to prescribe the procedure for assigning cases such that all parties receive adequate notice of trial. LSA-C.C.P. art. 1572 sets forth the procedure that is to be followed by the clerk of district court when a party has filed a .written request to be notified of the trial date. The article provides as follows:

The clerk shall give written notice of the date of the trial whenever a written request therefor is filed in the record or is made by registered mail by a party or counsel of record. This notice shall be mailed by the clerk, by certified mail, properly stamped and addressed, at least ten days before the date fixed for the trial. The provisions of this article may be waived by all counsel of record at a pre-trial'conference.

La. District Court Rule 9.14(a) provides:

(a) The date on which a motion to fix for trial on the merits may be made, and the method of setting a date for trial or hearing of a matter, including deadlines for scheduling orders, pre-trial briefs, contact with jurors, or any other matter, shall be determined by each district court as set forth in Appendix 9.14.

The Fourth Judicial District Court Appendix to Rule 9.14 provides, in pertinent part:

After all parties have answered, made a general appearance, or had a preliminary default entered against them, any party or counsel may request in writing a scheduling/status conference with the civil judge of the assigned Section, by submitting a Return Date/Hearing Cover Sheet (Pink Slip), which may be found at http://www.4jdc.com/forms.htm. The original and one copy of the request shall be delivered to the clerk of court. The clerk shall file the original in the suit record and stamp ‘Filed’ on the copy and round the copy to the civil judge of the assigned Section.

The “Pink Slip,” referred to in Rule 9.14, states, in pertinent part, “The filing attorney hereby certifies ... the filing attorney has contacted the anticipated opposing counsel, if known, at least three business days (72 hours) prior to the transmittal of the pink slip to the court[.]”

Trial judges have wide discretion in setting and hearing motions, as in other actions relating to scheduling and docket management, and their decisions in such matters will be set aside by appellate courts only when there has been an abuse of that discretion. See, Beteta v. City of New Orleans, 2006-0972 (La.App. 4th Cir.1/10/07), 950 So.2d 862; Kelley v. Hanover Ins. Co., 98-506 (La.App. 5th Cir.11/25/98), 722 So.2d 1133, writ denied, 98-3168 (La.2/12/99), 738 So.2d 576.

In the instant case, it is undisputed that defendants did not file the requisite pink slip setting their exceptions for trial. However, the record reveals that all counsel were aware that the hearing on all motions had been scheduled for July 6, 2012. At the conclusion of the hearing held on June 14, 2012, the court stated:

112What we’re going to do when we leave here is we’re going to go sit down. We already know [a] response to the plaintiffs’ motion for summary judgment will come in next Tuesday and that the defendants’ motion for summary judgment will be filed next Tuesday. So, figuring from that date which will be the what, the 19th I think, and that’s just a month and four days or something before trial. I’m going to have to shorten the delay within—that would be given to plaintiff to respond to the defense motion. And we’ll fix a date; we’ll fix a date common to all your calendars that I can hear this. It looks like it’s going to be the week—the week before I’ve got to render a decision before we can possibly get everything—all the ducks in a row. And we’ll see. We’ll make it work. We’ll make it work. We have to because I am not—I’m not inclined, gentlemen, to grant any delay in the trial.
All right, let’s meet, gentlemen. You all come to my reception office. I will arrange a conference room so we can conference right now with our calendars and my secretary there and all and we’ll get a date for a hearing so that I can get these motions—these cross motions for summary judgment decided ten days before trial.

Thereafter, on June 19, 2012, defendants filed a motion for summary judgment and an exception of prescription/peremption, along with memoranda in support thereof. The order attached to the filings provided that plaintiffs should “show cause on the 6th of July, 2012, at 9:30 a.m., Courtroom 8, why Plaintiffs’ Motion for Summary Judgment and Exception of Prescription / Peremption should not be granted.” As stated above, defendants’ motion, exception and accompanying order were filed on June 19, 2012; however, the order was not signed and faxed to plaintiffs’ counsel by the district court until the afternoon of July 3, 2012.

After reviewing the record and related jurisprudence, we find that the district court did not abuse its discretion in scheduling and conducting the hearing on the cross motions for summary judgment and trial of the |1sexception of prescription/peremption on July 6, 2012. Accordingly, we find no abuse of the district court’s discretion in its denial of plaintiffs’ motion for new trial on that basis. As stated above, the court expressed its desire to hear all pretrial motions and its intent to avoid delaying the start, of trial on the merits. Additionally, notwithstanding the lack of the pink slip, all parties were put on notice as early as June 14, 2012, that the hearing was scheduled on July 6, 2012. Further, the order accompanying defendants’ motion for summary judgment and exception of prescription/peremption, filed June 19, 2012, indicated that the show cause hearing was scheduled for July 6, 2012. Accordingly, we conclude that, in this instance, the failure to file the pink slip did not abridge plaintiffs’ due process rights. This assignment lacks merit.

Plaintiffs also contend the district court erred in granting summary judgment in favor of defendants and in denying plaintiffs’ motion for partial summary judgment. Plaintiffs argue that the parties entered into a joint venture, whereby Kai-lash and Manmohan invested large amounts of cash into the business, worked without receiving a salary, and reinvested all of their profits into the business. . Conversely, defendants argue that plaintiffs failed to present any evidence that a joint venture existed. According to 1^defendants, even if an oral agreement exists,, all contracts involving immovable property must be in writing.

Summary judgment shall be rendered if the pleadings, depositions, answers to in-' terrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to material fact and that the movant is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A genuine issue of material fact is one as to which reasonable persons could disagree. Argonaut Great Cent. Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 970 So.2d 1002; Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/7/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. One reason is that these subjective facts call for credibility evaluations and the weighing of testimony. Hooker, supra; Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263, writ not considered, 99-2729 (La.11/24/99), 750 So.2d 993. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier of fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Hooker, supra.

11SAppellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Cent. Ins. Co., supra. Summary judgments are favored under Louisiana law; however, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and doubt must be resolved in the opponent’s favor. LSA-C.C.P. art. 966(A)(2). Argonaut Great Cent. Ins. Co., supra.

As stated above, in the instant case, the district court granted summary judgment in favor of defendants and denied plaintiffs’ motion for partial summary judgment. Although the court did not provide reasons for its ruling on the cross motions, while ruling on the exception of prescription, the court stated, “The evidence does not show that there was a meeting of the minds resulting in the formation of an oral joint venture or partnership, entitling Plaintiffs to a one-third interest in even the first two Monroe stores, not to mention the other 16 or so stores.”

Unlike a corporation, parties do not have to-file any documents with the Secretary of State in order to create as between themselves a joint venture. Since the essential elements of a joint venture and a partnership are the same, joint ventures are generally governed by partnership law. Tedeton v. Tedeton, 46,901 (La.2/8/12), 87 So.3d 914, 924; Riddle v. Simmons, 40,000 (La.App.2d Cir.2/16/06), 922 So.2d 1267, writ denied, 2006-0793 (La.6/2/06), 929 So.2d 1259. No formal or specific agreement is required. Generally, the relationship may be formed by an oral agreement and the Inexistence of a joint venture may be inferred from the conduct of the parties and other circumstances. Id.

The partnership is created by a contract between two or more persons to combine their efforts or resources in determined proportions. LSA-C.C. art. 2801. There are no hard and fast rules in determining whethér a partnership exists and each case must be considered, based on its own facts and circumstances. Tedeton, supra; Harris v. Wallette, 538 So.2d 728 (La.App. 2d Cir.1989). Louisiana partnership law provides that each partner participates equally in profits, commercial benefits and losses of the partnership, unless the partners have agreed otherwise. LSA-C.C. art. 2803.

During her deposition, plaintiff, Kailash, was questioned at length with regard to the existence of a joint venture. She stated that she, Manmohan and Karl decided to form the joint venture, in which the three' of them would each own a one-third interest. She described it as a “family business” in which she and Manmohan supplied capital and labor, while Karl worked weekdays and managed the day-to-day operation of the stores. Kailash also testified that she and Manmohan trusted Karl; once they saw that Karl was successful in managing the stores, they invested more and more into the stores, in the' form of income and physical labor on weekends, holiday breaks and summers. She stated that she and Manmohan invested a portion of their salaries from teaching and did not receive any of the profits from the stores “[j]ust to have more and more— another store. So, the money was going there. So, [Karl] was using the money to do the best possible thing.” However, during some portions of her deposition |, testimony, Kailash seemed to indicate that she and Manmohan owned an interest in only the first two stores Karl opened in Monroe.

Contrarily, during the taking of his deposition, Karl denied ever entering into a joint venture with his parents. Similarly, Sookham denied having any knowledge of the formation or the existence of a joint venture. Kanwal Singh, one of Karl’s partners in some of his convenience stores, testified that he did not have any knowledge of a joint venture between Karl and his parents. Karl also submitted the affidavits of several other witnesses who attested that they did not have any knowledge of the existence of a joint venture between Karl and his parents.

Based on our review of the summary judgment evidence presented to the district court, we find that this matter involves factual issues which center on whether a joint venture existed between Karl, Kailash and Manmohan. Pretermit-ting the issue of whether the district court correctly ruled on the cross motions for summary judgment by way of the motion for new trial, we find that summary judgment was inappropriate, as genuine issues of material fact exist with regard to the existence of a joint venture. As noted above, Kailash testified that she, Manmo-han and Karl formed a joint venture in the late 1970s or early 1980s. Kailash provided undisputed deposition testimony that she and Manmohan provided Karl with large amounts of capital over the years and, prior to their retirement from teaching, they worked in their first two stores on weekends, during holidays [ 18and during summer breaks. Kailash also testified that she and Manmohan elected to reinvest their share of the profits back into the stores. Conversely, Karl denied ever entering into an agreement with his parents to form a joint venture. Karl also submitted affidavits within which the affiants denied having any knowledge of the existence of a joint venture.

A resolution of the issue of whether a joint venture existed between these parties requires the district court to weigh the conflicting factual evidence and to make credibility determinations. The fact that the evidence presented is subject to conflicting interpretations requires us to conclude that summary judgment in favor of defendants was improperly granted. Accordingly, we shall reverse the district court’s ruling.

Plaintiffs further contend the district court erred in sustaining defendants’ exception of prescription/peremption. Plaintiffs argue that the court incorrectly calculated the date on which prescription/peremption commenced. According to plaintiffs, Manmohan died June 21, 2010; two days later, Kailash asked Karl for a return on her investment into the stores. Karl refused and represented to Kailash, for the first time, that he and Sookham (or corporate entities owned by them) owned 100% interest in all of the stores. Plaintiffs filed suit on February 9, 2011.

LSA-R.S. 12:1502, which applies to all business organizations, provides, in pertinent part:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated.
|1flB. The term “business organization” includes any entity formed under the laws,of this state engaged,in any trade, occupation, profession, or other commercial activity including but not limited to professions licensed by a state or other governmental agency. . This Section shall apply without limitation to corporations, incorporated or unincorporated associations, partnerships, limited liability partnerships, partnerships in eommen-dam, limited liability companies, or cooperative associations or other entities formed under the laws of this state.
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.
E. The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.

| ^Prescription commences when a plaintiff, who claims involvement in a business organization, gains actual or constructive knowledge of the wrongful act. See, LSA-R.S. 12:1502(D); Brown v. Schreiner, 2010-1436 (La.App. 4th Cir.11/9/11), 81 So.3d 705. Constructive notice exists when a party has information sufficient to motivate curiosity and attention or place a reasonable person on guard to call for inquiry. Scranton v. Ashley Ann Energy, L.L.C., 46,984 (La.App.2d Cir.4/11/12), 91 So.3d 1174, writ denied, 2012-1345 (La.9/28/12), 98 So.3d 846.

Ordinarily, the party who asserts the peremptory exception of prescription bears the burden of proof at the trial of the exception. Carter v. Haygood, 2004-0646 (La.1/19/05), 892 So.2d 1261; Scranton, supra. However, when prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to prove that the action has not prescribed. Denoux v. Vessel Management Servs., Inc., 2007-2143 (La.5/21/08), 983 So.2d 84; Carter, supra; Scranton, supra.

Here, plaintiffs alleged that Kai-lash and Manmohan stopped working in the stores in 1999, due to their advanced age; however, they continued to invest capital in the stores. Pursuant to a power of attorney, Karl was authorized to conduct business on their behalf. Plaintiffs also alleged that they relied on Karl’s representation that he was acting in the best interest of the venture. More specifically, plaintiffs alleged, inter alia:

35.
In early 2010, KARL refused the request of the decedent for a distribution of partnership funds in the amount of $5,000 to fund an educational trust in his native village |2iin India, which refusal of partnership funds perplexed and confused both Plaintiff and decedent.
36.
The cause of the instant lawsuit crystal-ized on June 24, 2010, three days after decedent passed away-when Karl claimed all partnership properties, assets and entities belonged to Karl and/or his wife, SOOKHAM.

As stated above, this lawsuit was filed on February 9, 2011. Thus, prescription is not evident on the face of the pleadings of record. Therefore, it is incumbent upon defendants to show that the action is prescribed.

Defendants argue that Kailash and Man-mohan allegedly entered into the joint venture to make economic profit to be used in their retirement from teaching. They retired in 1993. Although they knew the stores were profitable, Kailash and Man-mohan never sought to share in the profits from the stores. According to defendants, prescription commenced, at the very least, in 1993, when Kailash and Manmohan retired from teaching and failed to seek a share of the profits derived from the alleged joint venture.

The district court agreed, stating, “[T]he delay for suing to claim the two-thirds share of profits Plaintiffs allege they are due has long-since passed. No distribution of profits has ever happened. And Plaintiffs knew the stores were profitable.”

We also shall reverse the district court’s ruling on the issue of prescription. According to the allegations set forth in the petition, Kailash and Manmohan invested large amounts of capital and a great deal of labor into at least two of the convenience stores. Plaintiffs also alleged that 122Kailash and Manmohan did not seek any share of the profits or salary, electing to reinvest their shares back into the stores. If plaintiffs are correct, an accounting for the profits and assets of the joint venture would now be owed. Plaintiffs did not gain actual or constructive knowledge that defendants had no intention of ever sharing any of the profits with them until June 2010, when Karl informed Kailash that he and Sookham owned 100% interest in the business. This lawsuit was filed eight months later. Accordingly, we find that the lawsuit has not prescribed, and the district court’s ruling is hereby reversed.

CONCLUSION

For the reasons set forth herein, we reverse both the district court’s grant of summary judgment in favor of defendants and the district court’s finding that this case is prescribed. We remand this matter to the district court for further proceedings. Costs of this appeal are assessed to defendants, Karminderdal S. Dhaliwal and Dhillon Sookham.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW and PITMAN, JJ.

Rehearing denied.

      . At some point, Manmohan and Kailash built another store in Monroe. Karl and Sookham were guarantors of the loan; they also loaned Manmohan and Kailash $80,000 to operate the store.

      . On July 3, 2012, Mahinderpal Singh "Paul” Dhaliwal, plaintiffs’ son, filed a petition of intervention, "join[ing] with Plaintiff in demanding his portion of the same relief against the defendants[.]” The district court denied the request to intervene on July 6, 2012. That ruling is not at issue in this appeal.

      . According to plaintiffs, discovery proved to be problematic because various items “went missing.” The "missing" items included the power of attorney, Karl’s Chase Bank account statements and other crucial financial records.

      .On June 6, 2012, defendants filed an exception of insufficiency of service of process and motion to upset the hearing on the motion for summary judgment. Defendants alleged that they were not properly served with plaintiffs’ motion. According to defense counsel, he did not learn about the order fixing the hearing until June 6, 2012. In the alternative, defendants requested additional time to file a response to the motion. The court granted the request and allowed defendants additional time to respond to plaintiffs' motion.

      . Trial courts are vested with authority to grant new trials under LSA-C.C.P. art. 1972 on peremptory grounds which appear to have no application in this instance. Under LSA-C.C.P. art. 1973, a new trial may be granted in any case if there is good ground therefor. The standard of review of a denial of a motion for new trial on discretionary grounds is that of an abuse of discretion. Little, supra; Drapcho v. Drapcho, 2005-0003 (La.App. 1st Cir.2/10/06), 928 So.2d 559, writ denied, 2006-0580 (La.5/5/06), 927 So.2d 324.

      . On August 16, 2013, defendants' counsel filed a letter in this Court. Pursuant to the letter, counsel expanded his argument that joint ventures pertaining to immovable property must be in writing by citing Midnight Drilling, LLC v. Triche, 2012-1043 (La.App. 1st Cir.6/19/13) (unpublished).

      . Plaintiffs argue that in response to their motion for a new trial, the district court granted defendants’ request for a judgment on the motions for summary judgment and improperly issued a ruling entitled "Judgment on Defendants’ Request and Ruling on Motions for Summary Judgment.”


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    STATE of Louisiana in the Interest of T.J. and A.B.
    No. 48,612-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 11, 2013.

      VaRhonda Eugenia Burrell, for Appellant, Terrance T. Brown.
    Johnny Lee Sanders II, for Appellee, State of Louisiana.
    James Edward Patton II, Monroe, LA, Assistant District Attorney, for Appellees, T.J. and A.B.
    Keesha Mason Bordelon, Rayville, LA, for Appellee, La. Department of Children and Family Services.
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

| Terrance Brown, biological father of T.J. and legal father of A.B., appeals the termination of his parental rights as to these children.

We affirm.

I. BACKGROUND

T.J. was born on September 5, 2005. A.B. was born on February 22, 2008. On November 9, 2010, T.J. suffered second and third degree burns over 45% of her body. At the time of her gruesome injuries, she was at home with her mother, Tabatha James, who was under the influence of drugs. A later investigation by the Ouachita Parish Sheriffs Department revealed what appeared to be T.J.’s burned flesh in several areas of the home.

On November 9, 2010, an instanter order was issued, removing both children from the home and placing them in the custody of the Department of Children and Family Services (“DCFS”).' At the time of issuance of the instanter order, both Terrance Brown and Antron Ellis were incarcerated, with Ellis serving a seven-year prison sentence.

The children were soon placed in foster care with the Greely family.

II. GUILTY PLEA

In January 2006, Brown pled guilty to criminal conspiracy to commit armed robbery and was sentenced to 15 years at hard labor, 12½ years of 12which were suspended with three years of supervised probation.

At the termination hearing, Brown was untruthful in his testimony about having entered a “best interests” plea to the charge of criminal conspiracy to commit armed robbery. The minutes clearly reflect that on January 31, 2006, he pled guilty to the crime, without reservations of any type. He fully and freely, with benefit of experienced counsel, admitted his guilt. The minutes do not reflect any discussion of a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

■•He waived delays and immediately received a sentence which, on its face, was illegally lenient. His plea bargain resulted in a sentence of 15 years at hard labor, with 12½ years being suspended, subject to three years of probation upon his release from serving the initial 2⅜ years. His probation was revoked on April 27, 2010.

Any sentence for armed robbery must be served without benefit of probation, parole, or suspension of sentence. Criminal conspiracy provides that a person who admits being a partner in a criminal conspiracy “shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the- conspirators; but such fine or imprisonment shall not |3exceed one-half of the largest fine, or one-half the longest term of imprisonment prescribed for such offense, or both.” (Our emphasis.)

While released on probation, Brown was arrested for aggravated burglary, criminal conspiracy to commit aggravated burglary, and possession of a firearm by a convicted felon. All of these charges were dismissed in exchange for his concession that he violated his probation. He is now serving the rest of the original 15-year sentence.

At the May 2013 termination trial, a DCFS representative estimated that Brown would serve another 11 years in prison. This testimony was unchallenged. If this is correct, Brown should be released in early 2024, at which time T. J. will be 18 years old. Her childhood will be long gone before her dad is released from the penitentiary.

III. FURTHER EVENTS LEADING TO TERMINATION

DCFS filed a petition for involuntary termination of parental rights and certification for adoption on April 25, 2011, to which James consented.

Brown objected to the termination. The DCFS petition as to Brown was dismissed without prejudice on July 28, 2011, and a case plan was established with goals to be met by Brown so as to handle the basic needs of |4the children. Brown’s case plan required that he:

• obtain and maintain housing for the children,

• complete a substance abuse evaluation,

• submit to random drug screens,

• complete anger management, and

• have consistent visitation with his children.

In November of 2011, the court found at a permanency hearing that:

• permanent adoption was in the best interest of the children; and

• continued placement in the Greely home was appropriate.

IV. TERMINATION PROCEEDINGS

On July 2, 2012, the state again filed a petition for the termination of Brown’s parental rights. The state alleged, and employees of DCFS later testified, that Brown had not completed any part of his case plan, had abandoned his children by failing to contribute to their care and support or maintain significant contact, and finally failed to inform DCFS of his transfers to new correctional facilities. Brown again would not agree to terminate his parental rights.

At the May 2, 2018, termination hearing, the court found that, by clear and convincing evidence, termination of parental rights was proper under La. Ch.Code art. 1015(4)(b) and (c), as well as (5) and (6).

|fiV. GROUNDS FOR TERMINATION

DCFS proved, by clear and convincing evidence, all elements required by La. Ch. C. art. 1015(4)(b) and (c), (5) and (6). The state need only prove one of the termination grounds in order to prevail. See State in Interest of WS, 626 So.2d 408 (La.App. 1st Cir.1993).

Our jurisprudence relative to termination is well settled.

A.Failure to Support

La. Ch. C. art. 1015(4)(b) provides that parental rights can be terminated for failure to provide support for the children. The foster care | ^supervisor and worker both testified that during the 30 months of DCFS custody, Brown provided no contributions on behalf of the children. Brown admitted not supporting the children during their time in the care of DCFS. His only contribution was the one necklace— no food, clothing, or shelter. We acknowledge that he has been incarcerated during this entire time frame. He is responsible for committing the crime that resulted in his lengthy incarceration. He has shown no just cause for this failure to support.

B. Failure to Maintain Contact

Parental rights can be terminated for failure to keep in contact with the minor children for a six-month period. La. Ch. C. art. 1015(4)(c).

Brown knew that his minor children were in the custody of DCFS. Letoshia Ross, the foster care supervisor, testified that Brown was given the children’s address and phone number. Both DCFS witnesses mailed him correspondence routinely. Brown admitted he met Ms. Greely, the foster parent, and knew the children were in her home. Of the total of four letters sent to the children since they have been in DCFS custody, two were written in 2013, long after these proceedings were begun. Brown has made no effort to increase his contact with his children.

C. Failure to Comply

La. Ch. C. art. 1015(5) provides for termination if more than a year elapses with no substantial parental compliance with a case plan.

T.J. and A.B. have been in the custody of the State of Louisiana since November 9, 2010, far exceeding the one-year threshold, during which time frame there has been precious little compliance with any of the case plans.

[7The foster care worker and her supervisor each testified that Brown failed to cooperate with DCFS to complete his case plan as to housing and employment. Brown blames his imprisonment for his lack of compliance. We recognize he was and is in prison. We nonetheless discern only feeble attempts to comply.

While incarcerated, Brown did partake in some services, but did not |Rtimely apprise DCFS.

D. No Reasonable Expectation of Significant Improvement

La. Ch. C. art. 1015(5) further provides that termination is indicated if there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The court looks for a reasonable expectation of reformation, found when the parent has cooperated with state officials and shown improvement; not all existing problems need be eliminated. State in Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445. The court clarified that reformation is more than cooperation with state agencies, but rather a significant, substantial indication of reform, such as significantly modifying the behavior that caused the child’s removal from the home. Id.

La. Ch. C. art. 1001 states that proceedings should be conducted quickly to avoid delays in achieving permanency for the child and resolving the status of the parent. State ex rel. L.R.S., 38,812 (La.App.2d Cir.6/23/04), 877 So.2d 1040. The foster care supervisor testified that DCFS did not believe that Brown would rehabilitate in the near future.

E. Incarceration

Article 1015(6) states that parental rights can be terminated if the parent has been convicted or sentenced to incarceration for such a time period that the parent will not be able to care for the child, considering the lflchild’s age and needs. Brown’s probation was revoked and he is now serving the remainder of his 15-year sentence from his 2006 guilty plea.

La. Ch. C. art. 1036(E) states that a sentence of at least five years or more raises a presumption of that parent’s inability to care for the child, although incarceration alone is not sufficient to terminate parental rights. Brown’s failures as a father afford him no relief from this presumption:

• He had an opportunity to provide a reasonable plan for the children while they were in DCFS custody;

• He knew of the Cumulative Paternal Relative Resource form that allowed him to provide names of appropriate care givers for the children; and

• While Brown did attempt to provide ap- ■ propriate care givers for the children, his proffered alternatives to foster care were all found to be unsuitable.

YI. RESPONSE OF THE DEFENDANT

The defendant argues that:

A. No order of support was ever entered.

DCFS knew Brown was incarcerated and could not make substantial payments, if any, to the children. The foster care worker did not believe Brown had ever been taken to court for a child support hearing. Brown’s position on this point has some support in our jurisprudence.

B. He tried to maintain significant contact with T.J.

Brown argues that:

1m* his case plan did not call for visitation;

• his visitation was suspended through a court order;

• he wrote letters to T.J.;

• he was denied prison visitation, and was able to visit T.J. only in court; and

• no evidence was produced at trial establishing that Brown failed to communicate with the child for six consecutive months.

His two cited cases on this point are of little help to him.

C. He tried to comply with the case plan.

Brown’s case plan did not call for visitation with T.J., though he did visit with the child in court and communicated with her by writing letters and sending a card for her birthday.

He in fact successfully completed the Northwest Regional Reentry Program, which included anger management, victim awareness, employment skills and job placement, all part of his case plan.

Brown further argues that:

• he made improvements in terms of the case plan by complying as much as he could, given his present condition;

• he is not the offending parent who injured his daughter;

• reunification has always been his goal; and

• he tried to supply relatives to care for the children.

lnD. His prison sentence should not be a basis for termination.

Brown’s sentence is considerably longer than the five years that triggers a presumption that he is unable to care for his children. See La. Ch. C. art. 1036(E). His testimony at trial of a possible early release was speculative in the extreme.

Brown is not a victim of his prison sentence. He entered the plea of guilty and received a 15-year sentence. He conceded he had violated the terms of his supervision. His own felonious conduct has taken him away from his children.

E. The children’s best interests require the denial of termination.

Our jurisprudence acknowledges that termination is an unusually strong remedy in response to poor parenting.

Brown agrees that his incarceration prohibits a traditional relationship with his children, but he has fought to save his parental rights. He argues that his children deserve a loving relationship with at least one parent.

11?VII. ANALYSIS

When a court is given the task of determining if termination of parental rights is proper, it conducts a two-part inquiry.

La. Ch. C. art. 1037(A) provides that when the grounds in any paragraph of art. 1015 are proven true and termination is in the best interest of the child, such termination shall be ordered. This record overwhelmingly supports termination.

We are not persuaded by Brown’s arguments.

He has had minimal contact with T.J. and A.B. In fact, T.J. believed Brown was deceased until a therapist told her otherwise.

Brown described his pre-incarceration relationship with the children as moderate. He last saw the children face to face in July 2012.

Since she suffered life-threatening injuries, the only constants in T.J.’s life have been her brother and her foster parents.

Brown admitted that he has had very little communication with T.J. and A.B. in the past 2⅜ years. It is therefore no surprise that the foster care supervisor testified that he lacks a parental bond with the children.

11sThere is no manifest error in the trial court’s termination of Brown’s parental rights. The children need permanent placement with, and adoption by, the Greelys.

Brown had well over two years to complete his case plan. He failed to make reásonable efforts to do so. These children should not have to wait any longer, as there is no reasonable hope that Brown will ever complete the case plan or become a responsible parent.

Despite Brown’s protestations to the contrary, T.J. and A.B. need to be freed from the limbo of foster care. The trial court was eminently correct to rule in favor of the needs of the children, over the needs of a wayward parent. The children deserve the permanency of adoption into a loving and capable family.

DECREE

The ruling of the trial court is AFFIRMED.

      . Antron Ellis is the biological father of A.B.

      . The child was burned by hot oil from the stove. The mother then scalded the child in the bathtub, and failed to get medical assistance for the child.

      . One of the comforts in reviewing this case is that the same dedicated judge handled these matters from start to finish, affording the trial court enhanced knowledge of this sad situation. We particularly appreciate the trial court’s kindness to these children.

      . He entered a plea to a violation of La. R.S. 14:26 (Criminal Conspiracy) and La. R.S. 14:64 (Armed Robbery).

      . Brown’s sentence included these provisions:
      (1)he was sentenced to 15 years at hard labor, with no mention that his sentence had to be served without benefit of suspension of sentence, probation or parole;
      (2) he received a suspended 12.5-year prison sentence, which is not lawful; and
      (3) he was placed on supervised probation, which is unlawful for the crimes admitted.

      . If Brown had stayed out of trouble, this disposition would have greatly inured to his benefit.

      . The "in the same manner as for the offense contemplated” language found in La. R.S. 14:26(C) has been interpreted to mean that if the sentence for the completed offense has to be served without benefits, then so does the sentence for the conspiracy. State v. Moore, 96-1835 (La.App. 1st Cir. 1997), 696 So.2d 657. The Moore court relied upon analogous language in our attempt statute [La. R.S. 14:27(E) ] that also provides that any sentence be served “in the same manner as for the offense attempted.” Further, in State v. Lawson, 43,655 (La.App.2d Cir. 10/22/08), 997 So.2d 122, the defendant was, like Brown, convicted of criminal conspiracy to commit armed robbery and sentenced to 15 years at hard labor. This court noted on error patent review that the sentence was required to be served without benefits. Thus, the bottom line for Brown is that none of his sentence is subject to early release.

      . TJ. was born on September 5, 2005; she will turn 18 on September 5, 2023.

      . The trial court approved several case plans, each with similar conditions and goals.

      . Art. 1015. Grounds
      The grounds for termination of parental rights are:

      (4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following;
      (a) * * *
      (b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
      (c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
      (5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.
      (6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child's age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

      . A parent cannot avoid providing financial support simply because he or she was not ordered to do so in the case plan. State ex rel. B.H. v. A.H., 46,864, (La.App.2d Cir. 10/24/07), 968 So.2d 881. The juvenile court determines whether the intent of a parent is to permanently avoid parental responsibility and abandon the child. State in Interest of J.K., 97-336 (La.App. 3d Cir. 10/29/97), 702 So.2d 1154. Once abandonment is proven, the parents who seek to avoid termination of their parental rights must prove just cause- for abandonment, which is a justifiable excuse for failure to provide for the child’s care and support. State in the Interest of ML, 95-0045 (La.9/5/95), 660 So.2d 830. A parent who intends to exercise his or her parental rights must take action to avoid the termination of those rights. State in Interest of S.M., 98-0922 (La. 10/20/98), 719 So.2d 445. Louisiana courts have held that incarceration is not a just cause defense for failure to support. State ex rel. B.H. v. A.H., supra.

      . La. Ch. C. Art. 1036, provides factors for consideration in this inquiry.
      Art. 1036 Proof of parental misconduct
      A. The admissibility of the conviction of a parent is governed by the Code of Evidence.
      B. A prior conviction may be proved by certified copy of the judgment of conviction or certified copy of the minute entry of conviction.
      C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
      (1) The parent's failure to attend court-approved scheduled visitations with the child.
      (2) The parent’s failure to communicate with the child.
      (3) The parent's failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
      (4) The parent's failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
      (5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
      (6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
      (7) The persistence of conditions that led to removal or similar potentially harmful conditions.
      D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
      (1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
      (2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
      (3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.
      E.Under Article 1015(6), a sentence of at least five years of imprisonment raises a presumption of the parent’s inability to care for the child for an extended period of time, although the incarceration of a parent shall not in and of itself be sufficient to deprive a parent of his parental rights.

      . There is no requirement under art. 1015(5) or art. 1036 of the Children's Code that DCFS prove reasonable efforts to accommodate case plans approved by the trial court. Brown had the opportunity to raise the issue of his incapability to adhere to the case plan prior to the case plan being approved.

      . In State ex rel. B.H. v. A.H., 42,864, (La.App.2d Cir. 10/24/07), 968 So.2d 881, this court found that when the case plan did not call for financial contributions and there had been no requests for financial contributions, the court was in error in finding the state had met its burden on this single issue.
      In State ex rel. A.L.D., 2009-0820 (La.App. 3d Cir.11/4/09), 21 So.3d 1109, the court con-eluded that the State cannot agree that there is no support obligation unless one is assessed by Support Enforcement and then use SupPort Enforcement s failure to assess an amount of support as a basis for the termination of parental rights.

      . In State ex rel. C.A.C., 2011-1315 (La.App. 4th Cir.2/1/12), 85 So.3d 142, writ denied, 2012-0388 (La.3/7/12), 83 So.3d 1048, the court concluded that a finding of abandonment was not supported under art. 1015(4)(c) when the father spoke to the child on the phone and was brought to visit his father almost every week during his incarceration.
      In State ex rel. H.G., 2008-657 (La.App. 3d Cir. 11/5/08), 997 So.2d 819, the court found that although it was certain that the father had not visited the child during his incarceration of 5⅛ months, it was uncertain when the last visit prior to the incarceration was, and thus, art. 1015(4)(c) was not met.

      . In State ex rel. J.A., 1999-2905 (La. 1/12/00), 752 So.2d 806, the court stated that the best interest of the parent and child must be balanced, and the parent's interest warranted "great deference and vigilant protection under the law.” Courts are advised to use caution because the termination of parental rights is one of the most drastic actions of the state. Id.

      Courts have recognized that a child has a fundamental right to know and love his parents. In re Billeaud, 600 So.2d 863 (La.App. 3d Cir. 1992).
      Natural rights between parents and children are reciprocal and should not be denied, except when a parent has proven himself to be unworthy of the child’s love. In re Adoption of B.G.S., 556 So.2d 545 (La.1990).
      Parental rights are a fundamental liberty interest that deserves great protection under the law. State in Interest of Q.P., 94-609 (La.App. 3d Cir. 11/2/94), 649 So.2d 512.
      The termination of parental rights must be proven by clear and convincing evidence, an onerous burden for the state. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); State in Interest of JML, 540 So.2d 1244 (La.App. 3d Cir. 1989).

      . The court must find, by clear and convincing evidence, that one of the art. 1015 grounds for termination is met. State ex. rel. J.M., 2002-2089 (La. 1/28/03), 837 So.2d 1247. After the court finds one of these grounds is met, the court must determine whether the termination of parental rights is in the best interest of the child. La. Ch. C. art. 1037(B); State ex rel. J.M., supra.

      To determine the best interest of the child requires the court to consider the child’s interest above the parent's. State ex rel. J.M., supra. The determination of best interest is within the discretion of the trial court and is made by the trier of fact considering the totality of circumstances. The finding of best interest of the child is entitled to great deference and is subject to review for manifest error. State ex rel. J.M., supra.

      Children need permanency and stability. See State ex rel. D.S.C. v. J.C.R., 35,893 (La. App.2d Cir.2/27/02), 811 So.2d 198. The best chance of permanency is to be freed for adoption. Indefinite placement in foster care does not further the best interest of the child. See State ex rel. J.M., supra. The court is designed to protect parental rights along with the right of the child to thrive and survive, with the parental rights yielding to the best interest of the child. State in the Interest of S.M., supra.

      . La. Ch. C. art. 1037(B) requires a consideration of the child’s attachment to his current caretakers. T.J. and A.B. have been with the foster parents for a very long time. DCFS presented ample strong evidence that the best interest of the children requires the parental rights of the father be terminated. The children are in need of a permanent and loving home. When adopted by the Greelys, they will have it. Each child has a close bond with each other, as well as their prospective adoptive parents and their 16-year-old daughter. The children have lived in this home for two years. They should not be forced to wait an indefinite time for Brown to serve his sentence and possibly rehabilitate when they are currently thriving in their current situation.

      . La. Ch. C. art. 1001 states that termination of parental rights is the first step toward placement in a permanent home. The goal is to achieve a permanent placement that will ensure safety, stability and welfare of the child. The trial court chose this type of permanent placement for T.J. and A.B.


author: BROWN, Chief Judge.

text:
    WOLF PLUMBING, INC., Plaintiff v. Claudine MATTHEWS, Defendant.
    Nos. 47,822-CW, 47,825-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Sentell Law Firm, LLC, Minden, by Charles Sherburne Sentell, Jr., for Ron Finical, Third Party Defendant/First Applicant.
    Blanchard, Walker, O’Quin, & Roberts, by John R. Herzog, Scott R. Wolf, Shreveport, for Citizens Bank & Trust Co. of Vivian, Third Party Defendant/Second Applicant.
    Jeff R. Thompson, APLC by Jefferson R. Thompson, Richard R. Ray, for Claudine Matthews, Defendant/Third Party Plaintiff/Respondent.
    Burt A. Bowers, Shreveport, for Wolf Plumbing, Inc., Plaintiff.
    Eddie Francis, In Proper Person.
    Before BROWN, DREW, and GARRETT, JJ.
   BROWN, Chief Judge.

I TThis appeal, which was originally a writ application that was granted to docket, arose out of disputes related to the construction of a home by Claudine Matthews in Benton, Louisiana. The particular issue presented is whether Matthews’ third party claims against third party defendants, Ron Finical, the contractor, and Citizens Bank and Trust of Vivian (“Citizens Bank”), the financing bank, should be deemed abandoned because no steps were taken in the lawsuit for three years while Matthews’ Chapter 13 bankruptcy in federal court was pending. Finical and Citizens Bank filed motions to dismiss due to abandonment. The trial court initially granted their ex parte motions, then after a motion to set aside was filed by Matthews, the trial court reversed its previous rulings and reinstated her claims against both third parties.

Finical and Citizens Bank sought this court’s review of the trial court’s adverse ruling. For the following reasons, we affirm.

Procedural Background

In 2005, Matthews hired a contractor, Eddie Francis, and began construction of a home in Benton; she arranged financing through Citizens Bank. In her third party claims, she alleged that Citizens Bank subsequently made her switch contractors to one of its choosing, Ron Finical. She further alleged that Finical did not complete the home, which was “riddled with vices and defects,” but that Citizens Bank nevertheless placed the financing with another lender and paid itself the majority of the construction loan.

On October 17, 2006, Wolf Plumbing, Inc., filed this suit against Claudine Matthews for nonpayment for work it did as a subcontractor on the |2new home. Matthews filed an answer and reconventional demand denying Wolf Plumbing’s contentions and asserting claims for defects in and vices of construction. Thereafter, on January 29 and November 3, 2007, Matthews filed third party claims against Ron Finical, Citizens Bank, and Eddie Francis.

During the pendency of this action, on March 9, 2008, Matthews filed for Chapter 18 bankruptcy in the U.S. Bankruptcy Court for the Western District of Louisiana. Matthews used Glay Collier of McBride and Collier as her attorney in the bankruptcy. Evidently, no one in the state suit, including Matthews’ attorney, Jeff Thompson, was aware of this bankruptcy filing. On September 9, 2008, after the initial pleadings, answers and exceptions were filed, Thompson wrote to the other attorneys attempting to set a hearing date for exceptions. The attorney for Wolf Plumbing replied to Thompson that “your client filed bankruptcy so I can’t proceed on anything.” The bankruptcy petition disclosed/included the state court lawsuit.

Starting in January 2009, Thompson began writing to Collier asking, ‘What needs to happen to allow Claudine to proceed with this lawsuit?” A number of similar letters were written to Collier until finally, in April 2011, Collier filed a “Motion For Relief From The Stay.” On May 31, 2011, the bankruptcy judge issued an order that provided in part that “[T]he automatic stay has been lifted only so that the plaintiff in the lawsuit (Wolf Plumbing) may liquidate claims against debtor Claudine Matthews and so that debtor [,t, Claudine Matthews, acting as plaintiff in reconvention, may liquidate claims in the same suit against a third party.” The bankruptcy judge further required that “Debtor must gain court approval if debtor receives any net proceeds from the reconventional demand, and debtor must give the trustee half of the net proceeds for the benefit of her creditors.” Neither the letters, documents notating the conversations between these two lawyers, the motion to lift the stay, nor the order lifting the stay were filed into the state court record.

In September of 2011, Finical and Citizens Bank filed ex parte motions in the state court action for dismissal on the grounds of abandonment. The record of the state court proceeding showed that no step had been taken to prosecute any of the claims since March 2008. The affidavits attached to the motions stated that no steps had been taken in the case since discovery was sent on August 8, 2008. The trial court initially granted these motions ex parte, dismissing the claims against Finical and Citizens Bank as of August 9, 2011. Matthews filed a motion to set aside the ex parte judgments, urging that the letters and conversations between her two attorneys, as well as the motion to lift the stay in the bankruptcy court were steps toward prosecution, and/or that the automatic bankruptcy stay in March 2008 constituted circumstances beyond Matthews’ control and served to interrupt or suspend the three-year abandonment period provided for in La. C.C.P. art; 561. The trial court agreed and set aside the judgments of dismissal. It is from this judgment that third party defendants, Finical and Citizens Bank, have sought this court’s review.

| ^Discussion

Louisiana Code of Civil Procedure Article 561(A)(1) provides in part that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three years without a step being taken by either party, and it is effective without court order. Clark v. State Farm Mutual Automobile Insurance Co., 00-3010 (La.05/15/01), 785 So.2d 779. To avoid a possible waiver of the right to assert abandonment, a defendant is instructed by La. C.C.P. art. 561 on the proper procedure to utilize to obtain an ex parte order of dismissal. Article 561 also provides the procedure for a plaintiff who desires to have an order of dismissal set aside. See La. C.C.P. art. 561(A)(3) and (4). The record in the instant case shows that all parties complied with these procedural requirements. As reflected in the trial court record, there was no formal action taken in the proceeding within the requisite three-year period. Thus, on the face of the record, Matthews’ third party claims are abandoned.

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. However, whether a particular act, if proven, precludes abandonment is a question of law that is reviewed by determining whether the trial court’s decision is legally correct. Brown v. Kidney and Hypertension Associates, L.L.P., 08-0919 (La.App. 1st Cir.01/12/09), 5 So.3d 258. In the case sub judice, the trial court considered Inactivity not in the court record as steps in the advancement of the case. See Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La.12/06/11), 79 So.3d 978.

If no steps advancing the litigation occurred, we must then determine whether one of the jurisprudential exceptions' to abandonment apply. See Food Perfect, Inc. v. United Fire and Casualty Co., 12-2492 (La.01/18/13), 106 So.3d 107. There are two jurisprudential exceptions to the abandonment rule. A plaintiff can demonstrate that his or her failure to prosecute was caused by circumstances beyond the plaintiffs control (contra non valen-tem) or can establish that the defendant waived his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Food Perfect, Inc., supra; Clark, supra; Succession of Wright, 37,670 (La.App. 2d Cir.09/24/03), 855 So.2d 926, writ denied, 03-2969 (La.01/16/04). Where there is a question regarding abandonment, courts stress substance over form. Clark, supra.

The issue presented is whether one of the jurisdictional exceptions to the abandonment rule applies. Causey v. Caterpil lar Machinery Corp., 02-0746 (La.App. 4th Cir.06/26/02), 822 So.2d 188.

Courts have interpreted the phrase “circumstances beyond the plaintiffs control” as contemplating events which create a legal impediment, such as a plaintiffs active service in the military or confinement to a mental institution, which makes it impossible for the plaintiff to take the necessary steps to prevent abandonment. Clark, supra; Succession of Knox, 579 So.2d 1164 (La.App. 2d Cir.1991); American Eagle, Inc. v. Employers’ Liability Assurance Corp., Ltd., 389 So.2d 1339 (La.App. 1st Cir.1980), writs denied, 396 So.2d 885, 886 (La.1981).

In Johnson v. Calcasieu Parish Sheriff’s Dept., 06-1179, 06-1180 (La.App. 3d Cir.02/07/07), 951 So.2d 496, two separate actions were filed against the Calcasieu Parish Sheriff by the plaintiffs to collect the $100,000 reward offered for anyone who provided information which led to the arrest and conviction of the person responsible for a triple homicide committed in Calcasieu Parish on July 6, 1997. Based upon information provided by the plaintiffs, Thomas Cisco was arrested, charged, and convicted of three counts of first degree murder.

Three years after the convictions, the sheriff moved to dismiss the suits as abandoned. The Third Circuit in Johnson found that the contra non valentem exception applied to prevent abandonment in the action because the plaintiffs’ failure to prosecute was caused by circumstances beyond their control. Although Cisco had been tried and convicted of three counts of murder based upon information the plaintiffs provided, Cisco’s convictions were reversed by the Louisiana Supreme Court. Therefore, his convictions were not final and retrial was at the sole discretion of the Calcasieu Parish District Attorney’s office, something outside of the control of the plaintiffs. Citing Pounds v. Yancy, 224 So.2d 1 (La.App. 1st Cir.1969), writ refused, 254 La. 810, 227 So.2d 145 (La. 1969), the court in Johnson found that the contra non valentem exception to abandonment was not limited to only two circumstances, service in the military or confinement to a mental institution, which were simply listed as examples of exceptions outside of a plaintiffs |7control, keeping in mind the policy considerations requiring liberal construction of article 561 in favor of maintaining a plaintiffs suit. Johnson, 951 So.2d at 500.

The filing of a bankruptcy petition operates as a stay of all judicial and non-judicial proceedings against the debtor and against property of the estate. 11 U.S.C. § 362; Gulfco Finance of Farmerville, Inc. v. McCormick, 577 So.2d 778 (La.App. 2d Cir.1991). The stay, which is automatic, is effective upon filing of the bankruptcy petition; requires no actual notice or formal service; and lasts for the duration of the bankruptcy proceeding absent modification by the bankruptcy court. Id. When the proceedings are stayed, only an order of the bankruptcy court can annul, modify or terminate the stay. In re Cueva, 371 F.3d 232 (5th Cir.2004).

The automatic stay cases in which the plaintiff is the debtor in bankruptcy are problematic. Some courts have been willing to dismiss a plaintiffs action as abandoned despite an extant bankruptcy stay. This Court has observed, in Ledbetter v. Wheeler, 31,357 (La.App. 2d Cir.12/09/98), 722 So.2d 382, 384:

Finally, the automatic stay is not a remedy afforded under the bankruptcy code for debtors who assume the position of creditors in other suits. 11 U.S.C.A. § 362 was designed to protect debtors who have filed for bankruptcy from further suit by creditors prior to completion of their bankruptcy proceeding. The language of 11 U.S.C.A. § 362 specifies that only those suits against the debtor will be stayed.

Likewise in Scarborough v. Duke, 532 So.2d 361 (La.App. 3d Cir.1988), the court of appeal held that a reconventional demand made by a party who was a debtor in bankruptcy had been abandoned. In Bonomolo Limousines v. Scheuermann, 99-832 (La.App. 5th Cir.12/15/99), 747 So.2d 207, writ denied, 00-0444 (La.03/31/00), 759 So.2d 74, the Fifth Circuit likewise concluded that a debtor’s re-conventional demand was abandoned despite the operation of an automatic stay.

None of these cases should be read as establishing a bright line rule; in fact, to do so would be legally erroneous in light of the applicable federal and Louisiana jurisprudence regarding the property which is included in the bankruptcy estate, the nature and scope of the automatic bankruptcy stay, and the policy behind and legislative history of La. C.C.P. art. 561.

In the case sub judice, the state district court was concerned that Matthews’ claims against Wolf Plumbing were so intertwined with Wolf Plumbing’s claims against her, as well as the third party claims, that fairness dictated that all of the claims be stayed until the bankruptcy trustee agreed that the case could proceed. A similar result was reached in Rabai v. Rabai, 556 So.2d 1299 (La.App. 5th Cir. 1990), a community property partition action in which one of the spouses was also a debtor in bankruptcy. The court of appeal reasoned that, “Rulings from this court could conceivably have the effect of both divesting and preserving assets for the bankruptcy estate.” Rabai 556 So.2d at 1301.

At the commencement of a bankruptcy case, an estate is created. 11 U.S.C. § 541. Dance v. Louisiana State University Medical Center at Shreveport, 32,592 (La.App.2d Cir.12/10/99), 749 So.2d 870, writ denied, 00-0532 (La.03/31/00), 759 So.2d 76; Gulfco Finance of Farmer-ville, Inc., supra. Many issues in any bankruptcy case are ^determined by what is considered property of the estate, including the scope of the automatic stay. Virtually all of a debtor’s interests in property existing as of the filing of the bankruptcy petition are included in the estate. 11 U.S.C. § 541; Gulfco Finance ofFarm-erville, Inc., supra. The extent of property included in an estate is determined by the bankruptcy court and in doing so, the court looks to state law to define the rights and interest of the debtor in and' to the property. Aguillard, H.Kent. Split the Baby? Personal Injury Causes of Action in Bankruptcy, 37 La. Bar Journal 339 (February 1990).

Although the scope of the automatic stay is broad, the clear language of section 362(a) stays actions only against a “debt- or.” This prohibition, however, has been liberalized in a number of cases where courts have applied the automatic stay protection to non-debtor third parties relying on both the automatic stay provision and the bankruptcy court’s equitable powers under 11 U.S.C. § 105. Courts have also extended the automatic stay to non-debtor third parties where stay protection is essential to the debtor’s efforts of reorganization. See, e.g., In re Lazarus Burman Associates, 161 B.R. 891(Bankr.E.D.N.Y.1993). Courts have also extended the automatic stay to non-bankrupt co-defendants in “unusual circumstances.” McCartney v. Integra National Bank North, 106 F.3d 506 (3rd Cir.(Pa.)1997).

In Louisiana, a cause of action is property, and, as such, forms a part of the debtor’s estate. Dance, supra; Morris v. Succession of Williams, 93-969 (La.App. 3d Cir.03/02/94), 634 So.2d 1266; Landry v. Calcasieu Marine National Bank, 528 So.2d 229 (La.App. 3d Cir.1988). In the |ininstant case, the entirety of this action, not just the principal demand, was subject to the automatic stay. The main demand was stayed as it was an action against the debtor, Matthews. The reconventional demand and third party claims brought by Matthews were also subject to the automatic stay as property of the estate. While not necessarily true in all bankruptcy actions, see Dance, supra, in the instant case, all claims in this case are intricately involved and interwoven together. A major bankruptcy asset, Matthews’ home, which is being built by third party defendant Finical and financed by third party Citizens Bank, is central to all claims in the state party action. Wolf Plumbing’s principal action is one for payment for its work as a subcontractor on the home. Matthews’ reconventional claim against Wolf Plumbing is for substandard work. Her third party demands against Finical and Citizens Bank all relate to financing and building issues arising out of the construction of her home. The bankruptcy judge clearly considered the entire state court case to be under his control. He was reluctant initially to lift the stay, but did lift the stay for plaintiff, Wolf Plumbing, to proceed, as well as for the debtor to proceed with her reconventional and third party demands. The bankruptcy judge further required that Matthews is to give half of the net proceeds she recovers to the trustee for the benefit of her creditors.

The bankruptcy court’s inherent power to exercise control over all assets of a bankrupt debtor in order to maximize the recovery available to his or her creditors requires the finding in this case. The trial court correctly recognized that judicial efficiency as well as equity principles, together with Inapplicable federal precepts and policy considerations underlying Louisiana’s abandonment rule, dictated the implication of the contra non valentem exception to abandonment under these facts and circumstances. Accordingly, we find the claims in this case were stayed until the appropriate motion for relief from the stay was granted by the bankruptcy court.

Conclusion

For the reasons set forth above, the trial court’s judgment setting aside the ex parte judgments of dismissal is affirmed. This matter is remanded for further proceedings. Costs are assessed to third party defendants/appellants, Ron Finical and Citizens Bank and Trust of Vivian.

      . Neither Wolf Plumbing nor Francis is involved in the instant appeal.