Katherine Sepulvado v. Rebecca Procell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-271

KATHERINE SEPULVADO, ET AL.

VERSUS

REBECCA PROCELL, ET AL.

**********
APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 62,798
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED.

John Oliver Hayter, III
The Hayter Law Firm, LLC
9045 Ellerbe Road - Suite 103
Shreveport, LA 71106
Telephone: (318) 698-3000
COUNSEL FOR:
Defendants/Appellees - Rebecca Procell, et al.

Ted Warren Hoyt
Hoyt & Stanford, L.L.C.
315 S. College Road - Suite 165
Lafayette, LA 70503
Telephone: (337) 234-1012
COUNSEL FOR:
Plaintiffs/Appellants - Katherine Sepulvado, et al.

Charles David Soileau
Soileau & Garcie
730 San Antonio Avenue
Many, LA 71449
Telephone: (318) 256-0076
COUNSEL FOR:
Plaintiffs/Appellants - Katherine Sepulvado, et al.

THIBODEAUX, Chief Judge.

The plaintiffs appeal the trial court’s granting of the defendants’

peremptory exception of prescription, thereby dismissing the plaintiffs’ claims of

fraud and dismissing their petition to annul or reform the 1993 sale of their leasehold

interest in land and mineral rights. Finding no manifest error in the judgment of the

trial court, we affirm.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that prescription
was not interrupted or suspended under the doctrine of contra non
valentem; and

(2) whether the trial court manifestly erred in finding that no relation of
confidence existed to excuse the plaintiffs’ lack of diligence in
failing to discover for seventeen years what they had agreed to sell.

II.

FACTS AND PROCEDURAL HISTORY

In 1993, Gerald Procell approached Katherine Sepulvado about

purchasing the leasehold interest in land that she owned with her sister, her aunt, and

her two cousins. The land was in Sabine Parish next to a marina and bait business

owned by Gerald Procell’s father; it was overgrown, not being used, and Procell

wanted to clean it up and use it for parking. A price of $10,000.00 was agreed upon,

and Gerald Procell had an attorney draw up a three-page document, entitled Sale and

Assignment (sometimes referred to as the deed), for the transfer of the property

interest to himself and his wife Rebecca.1

1
The record reveals that the plaintiffs’ ancestors had sold 5.88 acres of land to the Sabine
River Authority, then leased it back for 99 years for $417.60 (which was apparently 75% of the price

The sale was subsequently signed by Katherine E. Sepulvado, her sister,

Virginia Ann Ebarb, their aunt, Nellie E. Leone, and Nellie’s two daughters, Brenda

Leone and Charlotte Leone Carlisle (referred to individually as Katherine, Virginia,

Nellie, Brenda, and Charlotte, or referred to collectively as “the plaintiffs”). None of

the plaintiffs dispute their signatures on page three of the document. Katherine and

her sister, Virginia (now deceased), signed the document at Katherine’s home in

Noble, Louisiana, while Nellie, Brenda, and Charlotte signed at Charlotte’s home in

Shreveport.

The legal description of the property interest conveyed in the sale appears

on page two. Part one (1) of the legal description details a 2.65-acre tract of land and

a 3.23-acre tract of land lying along the cove as shown on the Toledo Bend Taking

Line Maps. These two parcels comprise the 5.88 acres of land which is the

undisputed lakeside property interest conveyed to Procell on both sides of his father’s

marina. Part two (2) of the legal description on page two conveys the mineral rights

as follows (emphasis added):

ANY AND ALL OIL, GAS AND OTHER MINERALS
AND MINERAL RIGHTS THAT VENDORS AND
ASSIGNORS MAY HAVE IN, TO, ON OR UNDER
THE TWO TRACTS OF PROPERTY DESCRIBED
IMMEDIATELY HEREINABOVE, AND ANY, AND
ALL OIL, GAS AND OTHER MINERALS AND
MINERAL RIGHTS, THAT VENDORS AND
ASSIGNORS MAY HAVE IN, TO, ON OR UNDER
THE EAST ONE-HALF (E ½) OF THE NORTHWEST
QUARTER (NW ¼) AND THE WEST ONE HALF (W
½) OF THE NORTHEAST QUARTER (NE 1/4) OF
SECTION TWO (2), TOWNSHIP SEVEN (7) NORTH,
RANGE FOURTEEN (14) WEST, SABINE PARISH,
LOUISIANA , LESS FIVE (5) ACRES IN A SQUARE
IN THE SOUTHEAST CORNER OF THE
SOUTHWEST QUARTER (SW ¼) OF THE
NORTHEAST QUARTER (NE ¼).

paid by the river authority). Thus the plaintiffs’ sale of their leasehold interest in the 5.88 acres
constituted a profit of almost 24 times the amount that their ancestors paid in 1973.

2

A township is a six-mile square of land divided into thirty-six, one

square-mile sections on a government survey; each section contains 640 acres, and a

quarter-section contains 160 acres.2 Hence, part two (2) of the Sale and Assignment

signed by the plaintiffs included the conveyance of their mineral rights to the 5.88

acres of land, and their mineral rights to 155 additional acres which were covered by

water in 1993. The Sale and Assignment was recorded in November 1993.

In September of 2009, an oil and gas land agent approached the plaintiffs

about leasing the 155 acres, ostensibly due to the Haynesville natural gas shale

formation under the land, but the agent then found the recorded sale to the Procells

and so informed the plaintiffs. The plaintiffs assert that this was their first knowledge

or discovery of the fact that they had transferred their mineral rights in the 155 acres

to Gerald and Rebecca Procell.

In May of 2010, the plaintiffs filed a Petition for Rescission,

Reformation, Fraud and Damages, asserting that they had agreed to convey only their

interest in the 5.88 acres of lakeside property in the 1993 sale, and that Gerald Procell

had fraudulently and intentionally included the oil, gas, and mineral rights to the 155

additional acres in the lake. Gerald Procell was deceased by that time, and the

plaintiffs named Rebecca Procell and the Succession of Gerald Procell, along with

eight other Procell heirs, as defendants in the petition.

In their petition, the plaintiffs alleged that their signatures “were obtained

at different times, not in the presence of the notary, and not within the formalities

required by Louisiana law for authentic acts, all with the intent and design of

Defendants . . . to deceive Plaintiffs and conceal the fraudulently changed property

description from them.” They further alleged that they relied on Gerald Procell’s

assertions and representations as to the contents of the sale because a “relation of

2
See definitions of “section of land” and “quarter section” in Black’s Law Dictionary, Sixth
Edition, West Publishing Co., 1990.

3

confidence” existed between them, due to their relationship as cousins, which

prevented them from discovering the fraud.

Following a contradictory hearing in October 2011, the trial court granted

the defendants’ exception of prescription, finding that the plaintiffs could have easily

discovered what was in the document if they had just read it, that they were aware of

the facts surrounding the execution of the document, and that prescription began to

run when the document was recorded on November 3, 1993. We affirm for the

reasons fully set forth below.

III.

STANDARD OF REVIEW

The plea of prescription must be specifically
pleaded and may not be supplied by the court.
Ordinarily, the exceptor bears the burden of proof at the
trial of the peremptory exception. However, if
prescription is evident on the face of the pleadings, the
burden shifts to the plaintiff to show the action has not
prescribed. If evidence is introduced at the hearing on
the peremptory exception of prescription, the district
court’s findings of fact are reviewed under the manifest
error-clearly wrong standard of review. If the findings
are reasonable in light of the record reviewed in its
entirety, an appellate court may not reverse even though
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.

Carter v. Haygood, 04-646, pp. 8-9 (La. 1/19/05), 892 So.2d 1261, 1267 (citations

omitted).

IV.

LAW AND DISCUSSION

The plaintiffs contend that the trial court erred in granting the Procell

defendants’ exception of prescription. The plaintiffs argue that they were fraudulently

induced to execute the sale of the mineral rights in 1993, and that their May 2010

petition to rescind the sale or have the deed reformed is not prescribed because they

4

did not discover the fraud until September 2009, when the leasing agent informed

them.

The applicable law provides that prescription runs against all persons

unless an exception is established by legislation. La.Civ.Code art. 3467. The doctrine

of contra non valentem is an exception to the general rules of prescription; it applies

in favor of a person who for some reason is unable to act. Leach v. Alonso, 95-325

(La.App. 3 Cir. 10/4/95), 663 So.2d 344, writ denied, 95-2662 (La. 1/26/96), 666

So.2d 671.

Consent to a sale may be vitiated by error, fraud, or duress. La.Civ.Code

art. 1948. However, “[f]raud does not vitiate consent when the party against whom

the fraud was directed could have ascertained the truth without difficulty,

inconvenience, or special skill” unless “a relation of confidence has reasonably

induced a party to rely on the other’s assertions or representations.” La.Civ.Code art.

1954. Fraud cannot be predicated on mere mistake or negligence, however gross.

Bass v. Coupel, 93-1270 (La.App. 1 Cir. 6/23/95), 671 So.2d 344, writ denied, 95-

3094 (La. 3/15/96), 669 So.2d 426.

In order to succeed on an action for fraud against a party to a contract,

three elements must be proved: (1) a misrepresentation, suppression, or omission of

true information; (2) the intent to obtain an unjust advantage or to cause damage or

inconvenience to another; and (3) the error induced by a fraudulent act must relate to a

circumstance substantially influencing the victim’s consent to the contract. See

La.Civ.Code art. 1953; Curtis v. Blue Cross Blue Shield of Louisiana, 07-782

(La.App. 3 Cir. 12/12/07), 971 So.2d 1249.

A claim of fraud is grounds for a relative nullity which is subject to

liberative prescription of five years. La.Civ.Code art. 2032. An action to reform a

deed is a personal action subject to a liberative prescription of ten years. See

5

La.Civ.Code art. 3499, and Louisiana Oil Refining Corp. v. Gandy, 168 La. 37, 121

So. 183 (La. 1929), cert. denied, 280 U.S. 516, 50 S.Ct. 65.

Here, the plaintiffs’ petition was not filed until seventeen years after they

signed the deed of sale, well beyond the five-year liberative prescription for fraud and

well beyond the ten-year liberative prescription for reformation of a deed. Since their

claims were prescribed on the face of the petition, it was plaintiffs’ burden to show the

trial court that their claims had not prescribed. Carter, 892 So.2d 1261.

Contra Non Valentem

The plaintiffs argued that prescription was suspended by the principal of

contra non valentem agere nulla currit praescriptio, because they did not discover the

fraud until September 2009 when the leasing agent informed them that they had

transferred the mineral rights in 155 acres to Gerald Procell with the sale of the 5.88

acres of lease-back land in 1993. They cited London Towne Condo. Homeowner’s

Ass’n v. London Towne Co., 06-401 (La. 10/17/06), 939 So.2d 1227, for the

proposition that the date of recordation of the deed alone is not determinative of the

date that prescription begins to run. This is true. However, both London Towne and

the doctrine of contra non valentem provide that the relevant date for prescriptive

purposes is the date that the obligee learned or should have learned of the act about

which he complains.

Pursuant to the doctrine of contra non valentem, the discovery rule

provides that prescription commences on the date the injured party discovers or

should have discovered facts upon which his cause of action is based; hence,

prescription does not accrue as long as the plaintiff’s prior ignorance is not willful,

negligent or unreasonable. Wimberly v. Gatch, 93-2361 (La. 4/11/94), 635 So.2d

206. The doctrine of contra non valentem is exceedingly stringent and applies only in

“exceptional circumstances.” La. C.C. art. 3467, Official Revision Comment (d). In

6

fact, the doctrine is traditionally applied in actions involving medical malpractice,

long-latency diseases, progressive occupational diseases, and torts involving

juveniles. See Eastin v. Entergy Corporation, 03-1030 (La. 2/6/04), 865 So.2d 49

(doctrine not applied in age discrimination case; proper focus was on the time of the

discriminatory act, not the point at which the consequences of the act became painful).

Our courts have long held that “[t]his principle will not except the

plaintiff’s claim from the running of prescription if his ignorance is attributable to his

own willfulness or neglect; that is, a plaintiff will be deemed to know what he could

by reasonable diligence have learned.” Corsey v. State of Louisiana, Through the

Department of Corrections, 375 So.2d 1319, 1322 (La.1979). Under Louisiana law,

the reasonableness of the plaintiff’s action or inaction is a fundamental precept that

the court must focus on in determining when prescription commences. Tiger Bend,

L.L.C. v. Temple-Inland, Inc., 98-424 (M.D. La. 6/15/99), 56 F.Supp.2d 686.

Here, the trial court recited the plaintiffs’ complaints of fraud: they were

given only the signature page of the deed; they did not read the contents of the deed;

they did not sign in the presence of a notary; and, the deed failed to conform to the

formalities of an authentic act under Louisiana law. The trial court found that the

plaintiffs were aware of the facts about which they complained, that they knowingly

and freely signed the signature page of the deed outside the presence of a notary

without reading the deed, and without interest in reading it. The record supports the

trial court’s findings.

Based upon her own testimony, Katherine Sepulvado signed the

signature page of the Sale and Assignment at Gerald Procell’s store in Sabine Parish

without asking to see the whole document, and she never asked for a copy of the

document before or after it was recorded. Katherine then took the page home with her

and had her sister Virginia come to her house to sign it. Katherine then took the page

7

to Shreveport and left it there for her Aunt Nellie and her cousins, Brenda and

Charlotte, to sign.3

Katherine retrieved the signed signature page from Shreveport after a

couple of days, brought it back home to Noble, and then dropped it off at the home of

her mother and father-in-law, Theresa and Cleve Sepulvado, for their signatures as

witnesses on the deed. Katherine retrieved the page again and returned it to Gerald

Procell. Procell then gave it to Muriel Rivers to notarize. The plaintiffs and the

notary admitted to signing the signature page outside the presence of each other, and

all of them admitted to never asking to read, or see a copy of, the other two pages of

the deed of sale.

These actions show that the plaintiffs were extremely negligent and

lacking in any efforts to determine what they were selling. While Nellie and Brenda

questioned Katherine in Shreveport about the other pages of the deed at the time of

signing in 1993, they accepted Katherine’s explanation that she only had the one page.

They signed that page and never looked back, until 2010.

Whatever is notice enough to excite attention and put the
owner on his guard and call for inquiry is tantamount to
knowledge or notice of every thing to which inquiry may
lead and such information or knowledge as ought to
reasonably put the owner on inquiry is sufficient to start
the running of prescription.

Cartwright v. Chrysler Corp., 255 La. 597, 604, 232 So.2d 285, 287 (La.1970).

Those who claim exemption from prescription by reason of ignorance

resulting from fraud must allege and show that such ignorance was neither willful nor

negligent. Romero v. Trahan, 345 So.2d 225 (La.App. 3 Cir.), writ denied, 347 So.2d

256 (La.1977). In Romero, we declined to apply the doctrine of contra non valentem

nine years after a testament was presented for probate. There, the plaintiffs contended

3
The record reflects that Nellie and her daughter Brenda were possibly in prison in
Shreveport at or around the time of signing, as the deed was executed in 1993, and Brenda and
Nellie were admittedly in prison for ten years and were released in November 2000, for an
undisclosed crime following their employment with SARC (Sabine Association for Retarded
Citizens) in Many, Louisiana.
8

that information as to the decedent’s mental capacity was withheld from them. We

disagreed, finding that the witness who came forward was available for the plaintiffs

to question about the authenticity of the testament at the time of probate and at all

times within the subsequent five years. In granting the defendant’s exception of

prescription, we stated that the plaintiff’s failure to secure the witness’s testimony was

“indicative of his want of diligence in obtaining knowledge concerning the confection

of the testament in question.” Id. at 227-28.

Here, all of the plaintiffs were working women. They owned property

and understood business. Nellie was in her late fifties and had a bachelor’s degree

from Northwestern; the three cousins were in the vicinity of forty. Brenda had a

bachelor’s degree in education and had begun work on a master’s degree; Charlotte

had an associate’s degree and extensive business and management experience; and,

Katherine graduated from a technical college and worked for AT&T for twenty-six

years. Accordingly, the plaintiffs should have known of their cause of action to

rescind the sale or reform the deed, which would have been easily determined by

reading it before signing or at any time within the five or ten years after signing it.

Here, prescription was not suspended under the doctrine of contra non valentem.

With regard to allegations of fraud, in a similar case where the plaintiff

acknowledged his signature on a mineral deed, the second circuit held that the

plaintiff’s admission that he failed to read the deed before signing it negated his claim

that he was defrauded. In Martin v. JKD Investments, LLC, 42,196 (La.App. 2 Cir.

6/20/07), 961 So.2d 575, quoting the first paragraph of La.Civ.Code art. 1954, the

court articulated:

[The plaintiff’s] claim that he never read the mineral
deed when he signed it negates the possibility of his
being defrauded by defendants. Fraud does not vitiate
consent when the party against whom the fraud was dir-
ected could have ascertained the truth without difficulty,
inconvenience, or special skill. La. C.C. art. 1954.
Clearly this is a situation in which the truth could have
9

been ascertained without difficulty, inconvenience, or
special skill since the document specifically stated that
[the plaintiff] was conveying his mineral rights to [the
defendant]. Thus, by showing that [the plaintiff] failed to
ascertain what he was signing, when he could have easily
read the document before signing it, defendants met their
burden of proving the lack of factual support for fraud.
Martin, 961 So.2d at 578 (emphasis added). We agree with this analysis.

Relation of Confidence

Here, however, the plaintiffs assert that they are not held to the duty of

attempting to ascertain the truth pursuant to the first paragraph of La.Civ.Code art.

1954, because the second paragraph of that article states that the first paragraph is

inapplicable where “a relation of confidence has reasonably induced a party to rely

on the other’s assertions or representations.” La.Civ.Code art. 1954 (emphasis

added). The plaintiffs assert that such a relation of confidence existed between

themselves and Procell that induced them to rely on his representations.

This relation of confidence was found to exist between an elderly mother

and her son in Sanders Family, LLC No. 1 v. Sanders, 46,476 (La.App. 2 Cir.

12/14/11), 82 So.3d 434, writ denied, 12-414 (La. 4/9/12), 85 So.3d 702. There, the

son allegedly induced his 76-year-old mother, who was the managing partner of the

family-owned limited liability company (LLC), to sell certain parcels of LLC land to

him and his wife for grossly inadequate amounts so that he and his wife could then re-

sell the land at a huge profit to themselves. The appellate court found that the LLC

had stated a cause of action for fraud under La.Civ.Code art. 1954 in three of four

transactions because it showed that the mother trusted her son to help run the day-to-

day operations of the LLC, and she sold property based upon his misrepresentations.

The court characterized the action as a breach of confidence between a trusted party,

or trustee, and his confidante.

10

Likewise, the relation of confidence was found to exist between an ill and

aging silent partner who ultimately depended, to his detriment, on a couple’s

marketing and development skills due to the previous twenty-five years of lucrative

business ventures together. See Skannal v. Bamburg, 44,820 (La.App. 2 Cir. 1/27/10),

33 So.3d 227.

Our own synthesis of the jurisprudence reveals that article 1954’s

relation of confidence has been found to exist where there is a long-standing and close

relationship between the parties due to numerous transactions, as seen above in

Skannal and Sanders. However, this confidante/trustee relationship is less likely to

exist between parties to a single or limited business transaction.

For example, in Nguyen v. Tran, 01-1612 (La.App. 4 Cir. 2/19/03), 841

So.2d 62, where the defendant realtor misleadingly held herself out as the owner of a

business during sales negotiations, the court held that the contract could not be

rescinded on the ground of error or fraud because it found the plaintiffs guilty of

inexcusable neglect in failing to undertake even the most rudimentary investigation of

the defendant’s assertions. No relationship of confidence existed; therefore, the

plaintiffs had a duty to attempt to ascertain the truth, which they could have done

easily, before agreeing to purchase the business.4

See also Smith v. Frey, 97-0987 (La.App. 4 Cir. 11/19/97), 703 So.2d

751 (the second paragraph of article 1954 was held inapplicable as there was no

relation of confidence between the plaintiff and the insurer); and see Garner v.

Hoffman, 93-0155 (La.App. 4 Cir. 5/23/94), 638 So.2d 324, writ denied, 94-2109 (La.

11/11/94), 644 So.2d 1068 (a plastic surgeon claiming that he was induced to

purchase stock in a surgical facility by the deceitful acts of his associate failed to

establish fraud as a ground for rescission; the fact that the surgeon considered his

4
After holding that the contract could not be rescinded for error or fraud, however, the
Nguyen court concluded that it could be rescinded on the basis of negligent misrepresentation.
Nguyen v. Tran, 841 So.2d 62.
11

associate his mentor did not create a relation of confidence within the intendment of

the civil code).

In Homer Nat. Bank v. Nix, 566 So.2d 1071 (La.App. 2 Cir.), writ denied,

569 So.2d 985 (La.1990), the vendor bank sold two lots for $8,500.00 each, believing

them to be unimproved. The purchasers knew that both lots had houses on them. The

bank learned that one lot was improved and sued to rescind the sale. After deposing

the purchasers, the bank entered into a consent judgment rescinding the sale of the

first lot, but dismissing its action to rescind the sale of the second lot. When the bank

learned that the second lot also had a house on it, it tried to annul the consent

judgment, claiming that a relation of confidence had induced it to rely on the

misleading deposition testimony of the purchasers. The court disagreed, finding that

the bank was already claiming fraud as to one lot, and it was unreasonable to rely on

the opponents’ representations without visiting the second lot before signing the

consent judgment.

See also Hawes v. Kilpatrick Funeral Homes, Inc., 39,089 (La.App. 2

Cir. 11/17/04), 887 So.2d 711 (found no relation of confidence under La.Civ.Code art.

1954 between a funeral home director and the daughters of the deceased).

The plaintiffs argue that Gerald Procell was a cousin, and they cite

George A. Broas Co. v. Hibernia Homestead & Sav. Ass’n, 134 So.2d 356, (La.App. 4

Cir. 1961), to support their position that a transaction involving a relative should be

considered suspicious. The referenced line from the case states: “Where a party has

charged as fraudulent an action involving close relatives, either by marriage or blood,

the courts have deemed the relationship, in itself, a highly suspicious circumstance.”

Id. at 361. The plaintiffs’ reliance on this case is misplaced, as the relatives in Broas

were not in an adversarial position with each other. Rather, there was collusion

among them, and it was the defendant bank who successfully vitiated the contract

between the relatives.

12

In Broas, Hibernia’s president agreed to provide financing for his

brother-in-law’s development of a new subdivision in Algiers. The president’s sister

was vice-president of Hibernia and was married to the developer. She helped her

brother hide her husband’s loan application from the other members of the board of

directors, such that it was never approved by the board of Hibernia. When a federal

investigation resulted in the removal of the president and the rejection of continued

financing for the development, the developer sued Hibernia for breach of contract and

sought to have the financing commitment upheld. He argued that the president, his

brother-in-law, was cloaked with apparent authority to act on Hibernia’s behalf.

Hibernia argued that the contract was vitiated by the collusion of the

president and vice-president, that it was never approved by Hibernia, and that the

developer was fully aware of the lack of approval because of the intimate family

relationships involved. The court agreed with Hibernia, and it was in this context that

the court in Broas indicated, as we interpret the court to have meant, that the actions

of close family members deserve scrutiny when there are allegations of fraudulent

activity in an attempt to gain an unfair advantage, rather than an attempt to injure each

other. We find that Broas is inapposite to the plaintiffs’ position in this case.

Here, in any event, there were no close family ties or longstanding

business relationships that would create the relationship of trust and confidence that

the courts have found to excuse the duty of simply reading a three-page document

before selling away one’s rights in property. Gerald Procell was merely a distant

cousin who entered into a single transaction with the plaintiffs. They barely knew

him, and one plaintiff did not know him at all.

More specifically, Charlotte stated in her responses to interrogatories that

Gerald was a relative and a well-known man in the community. However, she did not

live in the community. Charlotte testified in her deposition that she had moved from

Zwolle to Shreveport at age twenty-one, had been there almost forty years, did not

13

know Gerald Procell, had never talked to him, and did not know how or to what extent

she was related to him. She further indicated that she would not recognize Gerald

Procell if she saw him in person.

While Brenda had lived in Zwolle since 1981, she signed the document at

her sister’s house in Shreveport. Brenda gave sworn testimony in her answers to

interrogatories that Gerald Procell was her third cousin and was a well-known man in

the community, specifically stating, “We had discussed the terms of the transaction,

and I trusted Gerald when he said that he would have the documents drawn up for us

to sign.” However, in her deposition, Brenda stated that she never discussed the

document with him or interacted with him at all. She further admitted that she did not

know where Gerald Procell lived, had never visited him, had never seen him at family

reunions, did not know his children’s names, did not attend his funeral, and did not

know the cause of his death. This seems significant because Gerald Procell

apparently suffered from diabetes, had his legs amputated, and died the year before

the suit was brought, something a confidante would know about her trustee.

Nellie Leone is the mother of Charlotte and Brenda. Gerald Procell had

been a second cousin to Nellie’s husband, who was already deceased at the time of the

1993 transaction. Nellie had lived in Zwolle since the age of fifteen, but she signed

the document at Charlotte’s house in Shreveport. In her answers to interrogatories,

Nellie also stated, “We had discussed the terms of the transaction, and I trusted Gerald

when he said that he would have the documents drawn up for us to sign.” However,

in her deposition, Nellie admitted that she had seen Gerald Procell only one time in

many, many years, and that they did not talk even then. She admitted that she did not

know where he lived and that she had had no direct contact with him about the

document or the transaction.

The record reveals that Katherine Sepulvado was the only plaintiff who

had any contact with Procell about the sale. Her interaction with him was not as

14

family, but was limited to talking to him in his wife’s convenience store, where she

signed the document. She admitted that she did not ask to read the document, but

readily signed the signature page and circulated it to the other plaintiffs and the

witnesses for their signatures at different times and locations, before returning it to

Procell, who then took it to a notary. The trial court stated that:

Plaintiffs would need more than merely pointing to
correlates on a family tree, especially one as distant (and
contested) as six to eight degrees, or a co-plaintiff’s
belief that her relative was “an upstanding guy” to
establish such a relationship for the sake of escaping the
La.Civ.Code art. 1954 exception. Therefore, this court
finds no relation of confidence based on the showing
made.

We find no manifest error in the trial court’s finding that no relation of

confidence existed between the parties under La.Civ.Code art. 1954 that exempted

them from their duty to read the document either at the time of signing, or at some

time within the respective prescriptive periods, of five and ten years, for rescinding or

reforming the sale.

Finally, while we need not discuss the merits of fraud, we note that there

was no evidence that Gerald Procell knew in 1993, or even at the time of his death,

that the land in the lake had any value outside fishing. In Winegeart v. Texas

Industries, Inc., 390 So.2d 265 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 886

(La.1981), we held that the vendor could not rescind his sale on grounds that the

purchaser fraudulently misrepresented the value of the land, where the purchaser had

no special knowledge as to the value of gravel deposits there, and the vendor

presented no evidence that $1,200 per acre was not a fair purchase price. Here, the

plaintiffs admitted that they did not even have the land appraised.

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V.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment granting

the defendants’ exception of prescription.

All costs are assessed against the plaintiffs.

AFFIRMED.

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