In Re: Interdiction Of Eunice Lirette Gambino C/w Calvin J. Gambino, Jr. And Cynthia A. Gambino, As Curator For Interdictee Eunice L. Gambino v. Calvin J. Gambino, Sr. And Brad Joseph Gambino

Supreme Court of Louisiana
April 20, 2021
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: INTERDICTION OF EUNICE LIRETTE
GAMBINO
C/W
CALVIN J. GAMBINO, JR. AND CYNTHIA A.
GAMBINO, AS CURATOR FOR INTERDICTEE
EUNICE L. GAMBINO
VS.
CALVIN J. GAMBINO, SR.
AND BRAD JOSEPH
GAMBINO
No.2021-C-00267
_ _
_ _ _ _
I
N RE: Calvin J. Gambino, Sr. - Applicant Other; Applying For Writ Of Certiorari,
Parish of Jefferson, 24th Judicial District Court Number(s) 778 -797 C/W 784-146,
Court of Appeal, Fifth Circuit, Number(s) 19-CA-152 C/W 19-CA-153;
_ _ _ _ _ _
April 20, 2021
Writ application granted. See per curiam.
Weimer, C.J., would grant and docket.
WJC
JDH
SJC
JTG
JBM
PDG
04/20/2021 "See News Release 016 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2021-C-00267
IN RE: INTERDICTION OF EUNICE LIRETTE GAMBINO
C/W
CALVIN J. GAMBINO, JR. AND CYNTHIA A. GAMBINO, AS CURATOR
FOR INTERDICTEE EUNICE L. GAMBINO
VS.
CALVIN J. GAMBINO, SR. AND BRAD JOSEPH GAMBINO
On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson
PER CURIAM
Writ granted. To defeat this claim seeking to annul a donation, Calvin J.
Gambino Sr. had the bu rden of proving by a preponderance of the evidence the
donated land was his separate property. See Talbot v. Talbot, 03-814 (La. 12/12/03),
864 So. 2d 590, 600. Gambino was the only witness at trial. He testified he paid for
the property entirely with his separate funds, using money donated or bequeathed to
him by his parents. He introduced bank account ledgers, referred to as “passbooks,”
for several accounts he maintained during that time. The passbooks are in
Gambino’s name and contain type -written notations stating the accounts are
“separate and paraphernal funds.” According to Gambino, he used these accounts
exclusively to deposit the money he received from his parents. He identified the
withdrawals from those accounts used to purchase the subject land in 1989. He also
introduced a copy of the act of sale whereby he acquired the land, which states it
was purchased “with his own separate and paraphernal funds under his separate
administration and control.”
Finding Gambino “presented credible testimony, supported by corroborating
evidence, sufficient to overcome the presumption of community ,” the trial court
concluded the land was Gambino’s separate property and was validly donated by
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him. See La. Civ. Code. Art. 2341. A trial court’s findings regarding the nature of
the property as community or separate is a factual determination subject to manifest
error review. Ross v. Ross, 02-2984 (La. 10/21/03), 857 So. 2d 384, 395. Under this
standard, a trial court’s factual determination cannot be set aside unless, based on
the record as a whole, the determination has no reasonable factual basis and is clearly
wrong. See Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-
McGee Rocky Mountain, LLC, 14-2592 (La. 12/8/15), 193 So. 3d 1110, 1116. When
findings are based on credibility determinations, the manifest error -clearly wrong
standard demands great deference to the trier of fact ’s findings; for only the
factfinder can be aware of the variations in a witness’s demeanor and tone of voice
that bear so heavily on the listener ’s understanding and belief in what is said. See
Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989).
The trial court’s factual finding in this case is not manifestly erroneous. It is
based primarily on the trial court’s assessment of Gambino’s credibility, a
determination that must be given great deference on appeal. See Rosell, 549 So. 2d
at 844. This is not a case where “documents or objective evidence so contradict the
witness’s story, or the story itself is so internally inconsistent or implausible on its
face, that a reasonable fact finder would not credit the witness’s story.” Rosell, 549
So. 2d at 844-45. To the contrary, Gambino’s testimony was corroborated by
documentary evidence.
If, as plaintiffs argue, some of the donations to Gambino from his father
occurred during his father’s interdiction, those transactions were relative nullities
subject to rescission only by the interdict or his legal representatives, which were
Gambino and his sister. See La. Civ. Code arts. 395, 1482B, 1919, and 2031. The
donations occurred decades ago and were never challenged or rescinded. We are
likewise not persuaded that the relatively small amount of interest earned on the
passbook accounts converted all funds therein to community property. See Biondo

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v. Biondo, 99-0890 (La. App. 1 Cir. 7/31/00) , 769 So. 2d 94, 103 . The court of
appeal judgment is reversed, and the trial court judgment is reinstated.
COURT OF APPEAL JUDGMENT REVERSED; TRIAL COURT
JUDGMENT REINSTATED.