author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Rodney UNTEREINER.
    No. 11-KA-402.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Megan L. Gorman, Jennifer Z. Rosenbach, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli A. Herrle-Castillo, Attorney at Law, Louisiana Appellate Project, Marre-ro, LA, for Defendant/Appellant.
    Rodney Untereiner, Dequincy, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ¡¿Defendant appeals his conviction for attempted simply burglary from the 24th Judicial District Court, Division “I”. For the following reasons, we affirm the conviction.

STATEMENT OF THE CASE

On March 22, 2010, the Jefferson Parish District Attorney’s Office filed a bill of information charging Defendant, Rodney Untereiner, with one count of simple burglary, a violation of LSA-R.S. 14:62. Defendant pleaded not guilty at arraignment. On May 13, 2010, Defendant filed various pre-trial motions including a Motion to Suppress the Statement(s), Motion to Suppress the Evidence, Rand Motion to Suppress the Identification. On December 1, 2010, the trial court heard and denied Defendant’s Motion to Suppress Identification.

Defendant proceeded to trial on December 2, 2010 and was found guilty by a six-person jury of attempted simply burglary pursuant to LSA-R.S. 14:27 and 14:62, which is a responsive verdict to the crime of simple burglary. The trial court sentenced Defendant on December 16, 2010, to imprisonment at hard labor for five years. On that same date, the State filed a habitual offender bill of information alleging Defendant was a second felony offender. Defendant stipulated to the second felony offender status. The trial court vacated the underlying sentence and sentenced Defendant as a habitual offender to serve five years without the benefit of probation or suspension of sentence. Defendant also received credit for time served. Defendant filed a timely motion for appeal.

FACTS

The State’s key witness at trial was Mark McCullough, Jr. McCullough testified that on January 80, 2010, he was employed by Bayou Electric. As an employee, Mr. McCullough testified that one of his job duties included conducting a security check of his employer’s Chemtura Plant. McCullough explained to the jury that on the morning of January 30, 2010, he arrived at the Chemtura Plant (“the Plant”) located at Fourth Street, in Harvey, Louisiana, to perform a check of the Plant and bring a box containing a large breaker to the site. McCullough testified the entirety of the Plant property is surrounded by a large gate. Upon unlocking the gate, McCullough proceeded to back his pick-up truck to the loading dock located at the corner of the warehouse. Once parked, McCullough retrieved 14the breaker box and walked inside the Plant’s warehouse where he heard unexpected voices.

McCullough further testified that it was around 9:00 a.m. in the morning and, although there was no electrical lighting in the Plant, he could see pretty well because of the daylight shining through the open door. At first McCullough stood still listening to the voices and then turned around to find two white males, approximately 20 feet away, standing in the Plant’s warehouse. The man in the front was wearing a khaki-colored jacket with blue jeans, while the man in the back was wearing a blue jean jacket with blue jeans. McCullough noticed that the man who wore the khaki-colored jacket had a reel of copper wire in his hand. McCullough did not recognize these two males. McCullough attempted to scare the men off by slamming the box he had in his hands on the ground. It was at this time that the two men looked up, threw the copper wire down, and ran through the warehouse’s side exit. McCullough then went back to his truck and began to follow the men along the Plant’s fence line.

According to McCullough, the two men went outside of the warehouse and began walking along the inside of the fence while McCullough followed along the outside of the fence in his truck. While in his truck, McCullough called his supervisor, Brian Newberry, to report the incident. McCullough confirmed that the two males he saw inside the building were the same men he was following along the fence line. McCullough testified that he had a good visual of the two men because the fence was a chain-link fence. He then proceeded to follow the two men until they climbed through a hole that had been cut in the fence. At this time, McCullough parked his truck, got out, and waited for the men to come through the ditch so he could confront them on top of the railroad tracks.

|5When the two men came up to the railroad tracks, McCullough asked them to identify themselves and demanded they state their purpose for being at the Plant. The men responded they had been sleeping at the Plant and did not do anything wrong. The two men began walking toward Maple Street, and McCullough followed them on foot. While following the men, McCullough continued to question them about their presence at the Plant to which he received no response. Once on Maple Street, the two men began to approach a house which Defendant claimed was their residence. When asked why he was sleeping at the Plant if he had a home, Defendant attempted to punch McCullough and push him away.

While in front of the house, McCullough decided to call 911 to advise them of his location. While waiting for the police officers to arrive, McCullough followed Defendant from the front yard of the house to the back yard, while the second male stood on the front porch. It was at this time that McCullough lost sight of the second male; however, McCullough testified that he never lost sight of Defendant. McCullough stayed on the phone with the 911 dispatcher until the police arrived.

Prior to the police’s arrival, McCullough testified Defendant jumped a three-foot-tall fence which lead out to Fairmont Street, the street behind Maple. Because the fence was only three feet tall, McCullough was able to maintain a visual on Defendant at all times. Once the police arrived, the responding police officer was able to arrest Defendant on Fairmont Street. McCullough further testified that the second male he had seen with Defendant inside the Plant was never found. However, McCullough did provide the police officers with a description of the second male, which included his approximate age, ethnicity, and a description of the clothing he was wearing.

After arresting Defendant, the officer drove him back to the Plant.

| fiMcCullough met the officer back at the Plant with Newberry. While at the Plant, McCullough provided a voluntary statement concerning the incident and also positively identified Defendant as the man he saw in the Plant holding the copper wire. McCullough then testified that, while walking through the Plant with the police officers, a rolled up copper wire left behind by Defendant was found in the exact location where he dropped the wire. Upon further investigation of the building, they also found broken panels, a set of hand tools, a conduit that had been taken off of the wall with the wire stripped out, and a second roll of copper wire upstairs. McCullough stated that when he left the building the night before, the copper wire had not been removed, and the tools were not present. McCullough further testified that, although the copper wiring was never removed from the premises, Defendant was in the Plant on January 30, 2010, without permission, had the copper wiring in his hand, and dropped it when he noticed McCullough in the warehouse.

Brian Newberry, owner of Bayou'Electric and maintenance supervisor of the Plant, also testified on behalf of the State. On January 30, 2010, Newberry received a call from his employee, McCullough, regarding the incident in question. Newber-ry called 911 to report the incident and proceeded to drive to the Plant to assess the situation. Upon arrival at the Plant, Newberry testified that he noticed the entrance gate to the premises was open, and that his company pickup truck was parked by the railroad tracks with the engine on and the doors open. It was at this time that Newberry saw a police car turn on Maple Street and decided to follow. New-berry followed the police car to Maple Street where he saw, for the first time, Defendant with his hands on the police car.

Other than himself, and his employees, Newberry testified that no one else had permission or authority to enter the Plant or its premises. Newberry then 17confirmed Defendant was not an employee and, as such, did not have permission or authority to enter the Plant.

Next, Deputy Serbrina Howard of the Jefferson Parish Sheriffs Office testified that on the morning of January 30, 2010, she received a 911 dispatch call. Deputy Howard was initially dispatched to the Plant at 1805 Fourth Street to investigate a reported theft of copper. While in route to the Plant, Deputy Howard received additional information regarding the whereabouts of Defendant. Deputy Howard was advised that Defendant was at the four hundred block of Maple Street where Deputy Raymond Roy had apprehended him. Since Defendant had already been apprehended and was being transported by Deputy Roy back to the Plant, Deputy Howard proceeded back to the Plant to meet them. Upon arrival at the Plant, Deputy Howard had the opportunity to speak with McCullough about the incident. Specifically, McCullough told Deputy Howard he saw Defendant with the copper wiring in his hands, but he eventually dropped it and took off running when he noticed McCullough. McCullough further explained to Deputy Howard that Defendant, and the other male he was with, ran alongside the fence until they were able to fit through an opening underneath the fence enabling them to cross over to Fourth Street and Maple Street. Deputy Howard further testified that McCullough provided a description of the second male who, according to her report, was between the ages of fifty-five (55) and sixty (60). The second individual, however, was never apprehended.

Deputy Howard also testified that McCullough positively identified Defendant, through facial recognition, as one of the perpetrators he saw in the Plant. Once a positive identification had been made, Deputy Howard conducted an investigation inside of the Plant which revealed a prepared roll of copper that looked, in her opinion, prepared to steal. However, Deputy Howard was unable to |8make a determination as to where inside the Plant the copper wiring came from. No fingerprints were obtained from the copper wiring.

At trial, Defendant presented an alibi defense through Yvette Marks, Defendant’s fiancée. Ms. Marks testified that she and Defendant live together on Maple Street in Harvey, Louisiana, with her son, mother, and step-father, Efton Fugade. At about 9:00 a.m. on January 30, 2010, Ms. Marks was sitting on her front porch searching Facebook on her phone. From the front porch, Ms. Marks could see Defendant and her son by the ditch that runs along Fourth Street catching fishing bait. According to Ms. Marks, her son and Defendant were there for approximately 30 to 45 minutes before she sent her stepfather, Fugade, out to the ditch to retrieve her son. Ms. Marks stated that she remained on the front porch the entire time the incident concerning Defendant took place. About 10 to 15 minutes after Ms. Marks sent her stepfather to the ditch to retrieve her son, Ms. Marks noticed Defendant and her stepfather walking back to the house with a man she did not recognize. When Ms. Marks asked Defendant who the man was, he responded the man had tried to run him and her stepfather over with his truck. Ms. Marks admitted that she had not seen this happen because she was looking at Facebook on her phone.

Ms. Marks then testified that she went inside the house when Defendant and McCullough began to approach and further stated that she did not believe anything was wrong at that point in time. Ms. Marks’ stepfather also went inside the house with her, leaving Defendant outside with McCullough. About 20 minutes later, the police knocked on Ms. Marks’ door inquiring into the reason Defendant was by the ditch. Ms. Marks explained that he was catching bait to go fishing. The officer then advised Ms. Marks that Defendant was being arrested for trespassing.

Lastly, Ms. Marks testified that she never saw Defendant leave the ditch to |3go to the Plant, cut a hole in the fence, or bring any copper wire back to the house. Moreover, Ms. Marks stated she never saw Defendant or her stepfather run from the ditch to her house and did not notice any cuts on Defendant’s hands.

Ms. Marks’ stepfather, Efton Fugade, also testified for the defense. Fugade testified that on January 30, 2010, he went to the ditch that runs along Fourth Street to retrieve his grandson per Ms. Marks’ request. After his grandson returned to the house, approximately ten minutes passed before a white truck pulled up to area and nearly hit him and Defendant. The man in the truck, McCullough, approached Fu-gade and Defendant stating that someone had been inside his building. Fugade told the man that neither he nor Defendant had entered the Plant, nor had they left the location of the ditch that morning. McCullough then began to follow Fugade and Defendant back to their home on Maple Street. Fugade testified he went inside the house while Defendant remained outside arguing with McCullough. Later, a police officer arrived at Fugade’s home but did not question him. Fugade did not attempt to explain to the police officer what had transpired.

ASSIGNMENT OF ERROR

The evidence is insufficient to uphold the conviction.

DISCUSSION

Defendant, in both his Original Brief and pro se Supplemental Brief, argues the testimony of McCullough was insufficient to prove Defendant attempted to burglarize the Plant. Specifically, Defendant asserts the State failed to prove he took a step in furtherance of entering a structure, and that he had the intent to commit a felony or theft inside the Plant.

|10In support of his assignment of error, Defendant contends McCullough presented conflicting statements concerning the incident in question. With regard to the first conflicting statement, Defendant claims McCullough initially testified that he only wanted to scare the alleged perpetrators away from the Plant, yet McCullough chose to follow them. Second, McCullough stated he never lost sight of the two perpetrators, keeping visual contact with them the entire time that they walked through the Plant and along the chain-link fence. However, Defendant argues that it is impossible that McCullough could have maintained visual contact with the perpetrators the entire time because the Plant is a physical structure, with walls, that McCullough likely cannot see through. Defendant further contends that McCullough could not have had a visual on the perpetrators the entire time because at one point McCullough went back to his truck, drove to the outside of the fence, and then called his boss. Defendant avers that, unless McCullough was walking backwards, it is highly unlikely that McCullough could have maintained visual contact. Finally, Defendant asserts that McCullough lost his visual of the perpetrators when he waited for the perpetrators to crawl through a hole in the fence and up through the ditch.

Defendant next argues that McCullough’s testimony was the only evidence presented that placed him inside the Plant. Further, Defendant claims that, while the State presented photographs of the damaged items in the Plant that included two rolls of copper wire, no fingerprints were admitted at trial, and McCullough conceded to the fact that he had only witnessed Defendant holding a roll of wire.

Finally, it is Defendant’s contention that both Yvette Marks and Efton Fugade testified Defendant was nowhere near the Plant on January 30, 2010. Additionally, McCullough offered no explanation as to the whereabouts of the second perpetrator, nor did he identify Efton Fugade as the second perpetrator.

^Alternatively, Defendant argues that, even if the evidence was sufficient to establish that the defendant was inside the Plant, the State failed to prove that he had the intent to commit a felony or theft inside. Defendant contends that, although McCullough saw the two men inside the Plant, he did not see them actively stripping wire from various electrical panels inside of the Plant. Defendant notes that .it would be illogical for the two men to strip the wire on the second floor, roll it up, and leave it upstairs while they worked on the wiring on first floor of the Plant. Defendant argues that if he had the intent to steal the wire, he would not have dropped it when approached by McCullough. Instead, he could have easily taken it with him when he ran from the Plant.

In response, the State argues that both Newberry and McCullough established that Defendant did not have permission to be on Plant property. Moreover, the State contends that the testimony presented established that on January 30, 2010, McCullough entered the Plant and found two white males inside the Plant warehouse. One of males, later identified by McCullough as Defendant, had a reel of copper wire in his hand. The State further asserts that McCullough maintained constant visual contact with Defendant the entire time, following him from the Plant until he was apprehended. At the Plant, the identity of Defendant as one of the perpetrators was conclusively established and proven at trial through the testimony of Deputy Howard and McCullough. Thus, after having heard the testimony of the State witnesses, Brian Newberry, Deputy Serbrina Howard, and Mark McCullough, Jr., it is the State’s position that the jury placed greater weight on the testimony presented by the State, whose testimony established beyond a reasonable doubt that Defendant and another man were inside the Plant without authorization, with the specific intent to commit a theft of copper wire.

| 12The constitutional standard for testing the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

An appellate court, in reviewing the sufficiency of evidence, must determine if the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. State v. Sosa, 05-213 (La.1/19/06); 921 So.2d 94, 99. Additionally, when circumstantial evidence forms the basis of the conviction, the evidence, “assuming every fact to be proved that the evidence tends to prove ... must exclude every reasonable hypothesis of innocence.” Id.; LSA-R.S. 15:438. “When a jury rationally rejects the hypothesis of innocence advanced by the defendant, that hypothesis fails, and ‘the defendant is guilty unless there is another hypothesis which raises a reasonable doubt,’ i.e., an ‘alternative hypothesis ... sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt.’ ” Id., citing State v. Captville, 448 So.2d 676, 680 (La.1984).

The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness, at its discretion. Sosa, 05-213, 921 So.2d at 101. Absent internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Caffrey, 08-717 (La. App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10); 27 So3d 297. The credibility of witnesses is not to be reweighed on | ,aappeal. State v. Rowan, 97-21 (La.App. 5 Cir. 4/29/97); 694 So.2d 1052, 1056. The appellate court may impinge on the fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. Sosa, 05-213, 921 So.2d at 101.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove the identity of the perpetrator. State v. Searls, 04-790 (La.App. 5 Cir. 1/25/05); 895 So.2d 40, 43. Where the key issue is identification, the State is required to negate any reasonable probability of misiden-tification in order to carry its burden of proof. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99); 729 So.2d 65, 69. “Positive identification by only one witness is sufficient to support a conviction.” State v. Benoit, 07-35 (La.App. 5 Cir. 5/29/07); 960 So.2d 279, 282.

In the instant case, Defendant was charged with simple burglary but was convicted of the lesser included offense of attempted simple burglary under LSA-R.S. 14:27 and 14:62. Simple burglary is defined in LSA-R.S. 14:62 as “the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable ... with the intent to commit a felony or any theft therein ...” An attempt occurs when “any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether under the circumstances he would have actually accomplished his purpose.” LSA-R.S. 14:27(A).

Therefore, a conviction for attempted simple burglary requires proof that the defendant committed “an act for the purpose of and tending directly toward” the unauthorized entry of a dwelling or other structure “with the intent to commit a felony or any theft therein.” LSA-R.S. 14:27; LSA-R.S. 14:62; State v. Nelson, 2008-0584 (La.App. 4 Cir. 12/17/08); 3 So.3d 57, 60, writ denied, 10-166 (La.1/7/11); 52 So.3d 881. Entry is accomplished whenever any part of defendant’s person passes the line of the threshold, and it is sufficient that any part of the person intrudes, even momentarily, into the structure. State v. Smith, 02-1018 (La.App. 5 Cir. 3/11/03); 844 So.2d 119, 125.

Attempted simple burglary is a specific intent crime. State v. Petty, 99-1307, p. 3 (La.App. 5 Cir. 4/12/00); 759 So.2d at 946, 949, writ denied, 00-1718 (La.3/16/01); 787 So.2d 301. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” LSA-R.S. 14:10(1). Specific intent is a state of mind and, therefore, need not be proven as fact, but may be inferred from the circumstances and actions of the accused. Petty, 991307, 759 So.2d at 949.

In the present case, there was sufficient evidence to convict Defendant of attempted simple burglary. At trial, the State put forth the requisite evidence to prove that Defendant entered the Plant without authorization. To support this essential element, Newberry, owner of Bayou Electrical and caretaker of the Chemtu-ra Plant, testified that Defendant was not employed by Bayou Electric and did not have permission to be on the property. McCullough also testified that Defendant did not have permission to be in the warehouse, nor did he have permission to have the copper wire in his possession. After following Defendant from the Plant and waiting for the police to arrive, McCullough confirmed for the police that Defendant, who had been relocated to the Plant for identification, was the same individual he had seen inside the plant holding the copper wire. McCullough also confirmed for Deputy Howard that the roll of copper wire that had been dropped by Defendant remained in the same location where McCullough | ¶ shad initially confronted him in the Plant warehouse. Moreover, the State established that electrical panels at the Plant had been broken into, and that copper wire had been stripped from them. Additionally, McCullough testified that additional rolled up wire had been discovered on the second floor, and hand tools were also present, which had not been there the following evening.

Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that Defendant had the specific criminal intent to steal the copper wire but failed in his attempted theft due to the unanticipated presence of McCullough. LSA-R.S. 14:27 does not require that Defendant actually accomplish his purpose.

By returning the guilty verdict, the jury obviously believed the testimony of the State’s witnesses over the defense’s witnesses. Moreover, the circumstantial evidence is sufficient to infer the intent to commit a theft of copper wire. After reviewing the record, rational jurors, after viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that Defendant was guilty of attempted simple burglary. Accordingly, we conclude the evidence presented was sufficient to sustain Defendant’s conviction of attempted simple burglary pursuant to LSA-R.S. 14:27 and 14:62.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 387 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals the following error patent in this case.

While the commitment indicates that Defendant’s five-year sentence is to be served at “hard labor,” the transcript only indicates that Defendant’s sentence will be served “in the Department of Corrections.” Moreover, the transcript indicates Defendant was sentenced pursuant to LSA-R.S. 15:529.1, which requires that all | lfisentences imposed under said section be served at hard labor. See, LSA-R.S. 15:529.1(G).

Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Although the trial court did not state that Defendant’s sentence was to be served at hard labor, “a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.” State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04); 885 So.2d 618, (citing State v. Lisenby 534 So.2d 996, 998 (La.App. 3 Cir.1988)). Accordingly, we find that no corrective action is necessary.

AFFIRMED

      . The record does not reflect that Defendant’s other pre-trial motions were disposed of prior to trial. However, it is well established that a defendant waives all pending motions by permitting trial to proceed without raising the issue that his pre-trial motions were neither heard nor ruled upon. State v. Thomas, 08-1171, p. 5 (La.App. 5 Cir. 4/28/09); 13 So.3d 595, 599 (citing State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02); 836 So.2d 557, 559, writ denied, 03-0409 (La. 10/10/03); 855 So.2d 334).

      . Counsel for Defendant filed an Original Brief on May 16, 2011, asserting one assignment of error, namely, the evidence is insufficient to uphold the conviction. Subsequently, on June 20, 2011, Defendant filed a pro se Supplemental Brief to the Original Brief asserting the identical Statement of the Case, Procedural History, Statement of Facts, Assignment of Error, Issue Presented, and similar arguments concerning the alleged insufficient evidence. Due to the analogous nature of these submissions, and to avoid repetition, both arguments presented in Defendant’s Original Brief and pro se Supplemental Brief will be addressed as one.


source: Caselaw Access Project

author: CARAWAY, J. STEWART, J.,

license: Public Domain

text:
    SANDERS FAMILY, LLC NO. 1 and Larry L. (“Tay”) Taylor, III as Agent for Linda Sue Sanders, Individually and Derivatively, Plaintiffs-Appellants v. Colton Alaine SANDERS, Deborah Sanders, and Claiborne Timber, LLC, Defendants-Appellees.
    No. 46,476-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 14, 2011.
    Rehearing Denied Jan. 19, 2012.

      Harper Law Firm by Jerald R. Harper, Joey W. Hendrix, Shreveport, LA, for Appellants.
    Wiener, Weiss & Madison, Shreveport, LA, by R. Joseph Naus, Frank H. Spruiell, Jr., M. Allyn Stroud, for Appellees.
    Before STEWART, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.
   CARAWAY, J.

_jjln this action, a family-owned limited liability company seeks to rescind four sales of the company’s immovable property. The plaintiff claims that the company manager was improperly influenced and induced by her son to convey to him the properties for prices significantly less than the fair market value. The company asserts that the manager’s execution of each sale was from the advice and within the confidence of her son, thus vitiating her consent by fraud. The trial court dismissed the limited liability company’s claims for rescission of the sales contracts on the exception of prescription. Finding that the claims regarding three of the four sales have not prescribed, we affirm in part and reverse in part.

Facts

After the death of Zack Sanders, the assets of the former community between Zack and Ethel Sanders were placed into three limited liability companies wholly owned by Ethel Sanders (“Ethel”) and her children, Colton, Galen and Linda Sue. Specifically, the Sanders Family, LLC No. 1 (the “LLC”) was established on January 3, 1997, and it owned various real estate of the former community, the ownership of which is now contested. Ethel was listed as managing partner and owned 50% of the LLC membership interest, and the children each owned a one-third membership in the remaining one-half interest. Colton Sanders was named as registered agent.

|gOn November 19, 2007, the LLC and Larry L. Taylor, as agent for Linda Sue Sanders, individually and derivatively, filed suit against Colton Sanders, Deborah Sanders, Claiborne Timber, LLC (collectively the “Defendants”), and as a nominal defendant, the LLC, seeking rescission of four sales of the LLC’s property to the Defendants based upon claims of lesion beyond moiety, fraud and breach of fiduciary duty. Beginning in 2001, when Ethel was approximately 76 years old, the sales began. The following four deeds, executed by Ethel on behalf of the LLC, were placed at issue:

1) July 30, 2001 sale to Claiborne Timber, LLC, of six tracts of land located in Bienville Parish for the sum of $110,000 (“Claiborne Timber Sale”)
2) September 5, 2003 sale to Colton and Deborah Sanders of a tract of land with a home in Bienville Parish for the sum of $100,000 (“Bienville Parish Sale”)
3) June 22, 2005 sale to Deborah Sanders of lots 15 and 16 of Waller Subdivision for the sum of $60,000 (“Waller Subdivision Sale”)
4) November 30, 2005 sale to Deborah Sanders of property in Whittington Subdivision for the sum of $100,000 (“Benton Road Property Sale”). On May 31, 2005, the LLC had granted an option to purchase the property to Deborah Sanders for the stated consideration of $10.00 and other valuable consideration. The term of the option extended to June 2008.

On November 18, 2008, the trial court dismissed the case with prejudice after sustaining the defendants’ exception of peremption/ prescription. After an appeal by plaintiffs, this court reversed the judgment and remanded to allow the plaintiffs to amend their petition “to allege fraud lswith greater particularity” in Sanders Family, L.L.C. v. Sanders, 44,632 (La. App.2d Cir.9/23/09), 21 So.3d 433 (hereinafter “Sanders I ”).

On remand, the plaintiffs supplemented their petition. The common thread of their claims attacking each sale was that Colton (or his company, Claiborne Timber, or his wife) had acquired the properties for values far less than the fair market value and had prompted each sale by false information and nondisclosures intended to deceive his mother.

Defendants again filed the exception of prescription challenging the timeliness of the action contesting the four transactions. At the hearing on the peremptory exception, the court heard testimony from Ethel and Colton regarding the facts surrounding the subject property transactions. Additionally, many documents of Ethel’s various business transactions were submitted by Defendants to demonstrate her business savvy and understanding of the subject transactions. Finally, the two witnesses and notary for the Claiborne Timber Sale testified.

On April 26, 2010, the trial court rendered a written ruling and final judgment granting Defendants’ exception of prescription regarding each of the four transactions. A signed final judgment followed on April 5, 2011, which dismissed “all of the claims of Plaintiffs.” This appeal ensued.

Discussion

We will review each of the four transactions in detail below. However, we must first identify the cause of action which has been attempted to be alleged for the rescission of each sale and determine the applicable prescriptive period. From our review of the record and the |4arguments, we conclude that the remedy of rescission for the specific fraud identified in Civil Code Article 1954 is sought by plaintiffs. The heading for that article indicates that the fraud involves a breach of “confidence between the parties.” The article states:

Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill.
This exception does not apply when a relation of confidence has reasonably induced a party to rely on the other’s assertions or representations.

La. C.C. art. 1954.

Article 1954 is contained in the Civil Code’s chapter for vices of consent in the formation of the contract. Consent may be vitiated by error, fraud or duress. La. C.C. art. 1948. Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. La. C.C. art. 1958.

The plaintiffs’ cause of action under La. C.C. art. 1954 concerns a breach of a relationship of confidence between a trusted party (for this discussion, “trustee”) and his confidante who gives her consent to a contract in reliance upon the trustee. The cause of action consists of (1) the trustee/confidante relationship; (2) the confidante’s reasonable reliance upon the trustee despite the fact that the confidante “could have ascertained the truth” of the flaw in the contract “without difficulty, inconvenience, or special skill;” (3) assertions or representations by the trustee made with the intention to obtain an unjust advantage for the trustee (see La. C.C. art) ñ 1958); and (4) the confidante’s later discovery that her consent to the contract was induced by the trustee’s misrepresentation or his suppression of material facts. Where a party has charged as fraudulent an action involving close relatives, either by blood or marriage, the courts have deemed the relationship, in itself, a highly suspicious circumstance. Perot v. Perot, 46,431 (La.App.2d Cir.8/10/11), 2011 WL 3477028; George A. Broas Co. v. Hibernia Homestead & Sav. Ass’n., 134 So.2d 356 (La.App. 4th Cir.1961); see also, Todd v. Mule, 19 La.App. 230, 140 So. 50 (La.App. 1st Cir.1932).

Notably, within the cause of action itself is the essential element for the later discovery by the confidante after the date of the contract. This discovery element of the cause of action is then expressly acknowledged in the applicable five-year rule of prescription in La. C.C. art. 2032, which provides, in pertinent part:

Action of annulment of a relatively null contract must be brought within five years from the time the ground for nullity either ceased, as in the case of incapacity or duress, or was discovered, as in the case of error or fraud.

Therefore, if the confidante files suit for the trustee’s fraud five years after the date of the contract, she must defend any exception of prescription by showing that she only discovered the trustee’s fraud within the five years before filing suit. The issue becomes, when did the confidante first understand that the trustee misrepresented the transaction. This was the relevant inquiry for the Claiborne Timber Sale which occurred in 2001, six years before the filing of suit.

The other three transactions at issue occurred within five years of |r,suit, and therefore, Defendants had the burden of proof. A party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Industries, Inc., 04-2894 (La.11/29/05), 917 So.2d 424.

Evidence may be introduced to support or controvert any objection pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. In the absence of evidence, an objection of prescription must be decided upon the facts alleged in the petition with all allegations accepted as true. La. C.C.P. art. 931; Cichirillo, supra.

All that must be considered on the peremptory exception of prescription is whether there is sufficient evidence to show that the alleged time period has run under the requirements of the particular code article involved. The trial court need not go into the merits of the case. Montgomery v. Breaux, 297 So.2d 185 (La.1974); Allstate Ins. Co. v. Fred’s Inc., 44,508 (La.App.2d Cir.3/17/10), 33 So.3d 976, unit denied, 10-0883 (La.6/18/10), 38 So.3d 331; Reed v. Abney, 04-1928 (La. App. 1st Cir.2/10/06), 928 So.2d 585.

Appellate review of the record following a hearing on exceptions is governed by manifest error when evidence has been introduced at the hearing. Cichirillo, supra.

Claiborne Timber Sale

In their original petition, Plaintiffs made the following allegations concerning the 2001 Claiborne Timber Sale of 337.63 acres in Bienville Parish:

|71) Colton approached Ethel Sanders and indicated to her that it was in the best interest of the LLC to sell the tracts of land.
2) Colton failed to disclose to a disinterested majority of the members of the LLC that Claiborne Timber, LLC was a limited liability company formed the day before the execution of the Claiborne Timber Sale with Colton as its sole member.
3) On the day of the sale, Ethel did not have authority to sell the interest in the property. Subsequently Colton presented a certificate to the other members of the LLC which authorized Ethel to execute such a sale and to ratify all prior transactions.
4)On March 22, 2005, Claiborne Timber, LLC executed an oil, gas and mineral lease on the subject 337.63 acres for a consideration of $250-$300/ acre, or an amount roughly sufficient to pay the full purchase price for the entire tract.

In the supplemental petition, plaintiffs made the following additional allegations regarding the sale:

1) Colton approached Ethel and indicated that it was in the best interest of the LLC to sell a “portion” of the family property owned in that parish across the lake from the family home in Ringgold.
2) Colton informed his mother that a group of third party “investors” had formed Claiborne Timber and desired to purchase the property.
3) Colton told his mother that Claiborne Timber desired to pay a fair market price for the tract and its timber and that the sale of the tract was necessary because it was burdened by a $107,000 mortgage. Colton knew his mother did not like debt. No such debt existed.
4) No appearances by a representative of Claiborne Timber was made at the execution of the sale.
5) Colton indicated to his mother that he had negotiated a purchase price of $110,000 which was a fair value for the tract of land. Colton knew that the fair market value of the entire tract was several ^multiples of the purchase price being negotiated for the sale of the tract.
6) The cash sale deed was not executed before a notary and the legal description of the property being conveyed was not attached to the deed at the time of the execution of the document.
7) Colton had the act of sale signed by a notary outside of the presence of Ethel Sanders and the witnesses, fraudulently attached a legal description embracing all of the 337.63 acres, despite never having mentioned the sale of the additional tracts to his mother. The land described in the legal documents was twice the amount of land discussed by Colton with his mother. Colton misrepresented the extent and nature of the property being conveyed and subsequently attached a legal description conveying the entire 337.63 acres without the knowledge or consent of his mother.
8)Colton fraudulently and with an intent to deceive his mother induced her to sell the property and failed to disclose to her that Claiborne Timber was a legal entity formed by himself and his wife and the sale was negotiated by Colton for his owner financial interest. Colton misrepresented the identity of the purchaser of the tract; negotiations were solely for their undisclosed personal gain.

At the hearing, Colton testified that he is one of the principals of Claiborne Timber, LLC. He stated that his mother and brother discussed negotiations and offers regarding the Claiborne Timber Sale and that a verbal offer of $110,000 had been made for the timberland, although there was never a written offer or written negotiations. Colton stated that he spoke with an individual who represented a group of investors regarding the property, although he could not remember the individual’s name. A bona fide verbal purchase offer was communicated to Colton for the sum of $110,000 on behalf of the investors, although nothing was reduced to writing. Colton claimed that he told his mother and brother that he was conversing with “people purporting to be from Claiborne Parish that were showing an interest in buying the cutover timber land that existed in | ¡¡Bienville Parish.... ” Colton referred to the group as the “Claiborne Timber people.”

Colton testified that the name of his limited liability company was Claiborne Timber. He met with his attorney to discuss “what we were doing,” and the attorney suggested that an LLC be formed as an “instrument of purchase.” Colton stated that he wanted the property in the name of an LLC because of “poachers.” Plaintiffs showed the filing date for Claiborne Timber, LLC as July 27, 2001, three days before the Claiborne Timber Sale.

Colton testified that he believed the price of $110,000 ($300 per acre) was a fair price, although he denied ever telling his mother that it was a fair price. Instead, Colton testified that the price was offered by an unnamed bona fide third party purchaser who never ended up with ownership of the property. Colton testified that his mother was entitled to trust him.

Ethel Sanders testified about the discussions she had with Colton about selling the property which she identified on a Google map. She described the portion of the property that she thought was being sold as “the land across the lake from the house.” Ethel testified that Colton told her that the LLC had a debt of $107,000 and that he believed he could get somebody to pay that much for the land. Ethel desired to have the debt settled, and it was agreed that the land would be sold. Ethel believed that the LLC may have been in debt because it had taken over her daughter’s debt, but she was not sure. Ethel testified that she was never able to get anjj^answer as to what the $107,000 debt was for and that she now believed there was no debt. Colton informed her that he had a buyer which she understood to be “a group of professional people that bought up land.” Ethel stated that she signed the July 30, 2001 sale, but she thought that Claiborne Timber, LLC was “just a group of businessmen.” She did not believe that Colton or his wife were any of these business people.

Ethel testified that Colton told her that the $110,000 was a fair price for the land. She testified that she later became concerned about the Claiborne Timber Sale in 2007 when she heard that the Benton Road property was sold for “a huge amount.” She told her daughter to find someone to look into it. She learned that Colton was a part of Claiborne Timber, LLC by her attorney in 2007.

Additionally, there was considerable testimony regarding Ethel’s competency as an elderly person in dealing with the family properties and Colton’s relationship with his mother and the LLC. Ethel testified that she had no experience in negotiating transactions for the purchase of real estate and that her husband conducted all of the family business over the years. She had no financial experience and relied on Colton to advise her regarding her dealings with the LLC. Ethel testified that she relied on Colton to review the LLC’s real estate values with her and to manage and operate the LLC on a day-to-day basis.

On cross-examination, Ethel identified a cash sale dated June 15, 2005, which transferred 78 acres from the LLC to her name. She testified that Colton was not available at the time of this transaction so she asked an lnattorney for help. Two days later she leased the minerals on the 78 acres. She admitted she did this without Colton’s help because he was out of town.

Ethel testified that she never spoke with the LLC accountant who was directed by Colton. Ethel testified that it is her practice to sign documents without reading them, “if somebody that I can trust” advised her. Ethel did not look at the financial records of the LLC when Colton started keeping all of the records. She “just left it up to him.” She looked to Colton on the day-to-day matters of the LLC. He was paid $2,000 a month by the LLC for handling those matters.

The factual determinations of the trial court’s written ruling on the Claiborne Timber Sale are summarized as follows:

1) Ethel understood she was selling a large amount of acreage from the LLC’s property in Ringgold.
2) While the trial court did not decide if Linda Sanders’ alleged $107,000 debt was emphasized to Ethel by Colton (their testimony contradicts), the trial court did find that Ethel did not want the 337 acres to “be a financial burden to her or the members of the LLC.”
3) Ethel understood her tasks as the LLC manager and she continued to exhibit the “intellectual capacity” in business dealings after the 2001 sale.
4) The improper notarization and lack of property description attachment to the deed did not occur.

From this review, we find that the allegations regarding the Claiborne Timber Sale do state a cause of action under Article 1954 and that the evidentiary hearing and the trial court’s fact rulings do not alter that conclusion. The elderly mother’s relationship with her son was a “relation of confidence” concerning this property matter of the LLC. Colton did | ^withhold the true identity of the purchaser and did not dispute that Ethel thought she was selling to a third party. In the absence of an interested third party purchaser being identified and testifying, Colton’s testimony was contradictory on a critical point. He said that he never expressly told his mother that the $110,000 purchase price was a fair price. Yet, he asserted that on the basis of a price set by the unidentified party(s), the important fair market value assessment by Ethel was made. With all of this, along with the alleged price deficiency in the sale and no expert testimony regarding the fair market value of the property in 2001, the trial court made no factual ruling regarding the value of the property at the time that Colton acquired it through his limited liability company.

The only fact ruling by the trial court that goes to the assessment of a claim under the second paragraph of Article 1954 was its conclusion that Ethel did not want the 337-acre tract to “be a financial burden to her or the members of the LLC.” In her testimony, she attributed such concern to what Colton told her about a $107,000 debt that never existed as a burden against the property according to plaintiffs’ assertions.

The other fact conclusions of the trial court and a large focus of defendants’ assertions for the exception of prescription are that Ethel had a sufficient business acumen, was not mentally impaired, and “could have ascertained the truth without difficulty, inconvenience, or special skill” of the fair market value of the Claiborne Timber tract. Such “skill” is addressed in the first paragraph of Article 1954; yet it becomes irrelevant in large measure under the second paragraph of the Article when a skilled and Incompetent party gives her consent to a contract after being reasonably induced by a trusted party to forego such scrutiny of the transaction.

Most importantly, all of the above discussion, the trial court’s ruling on the Claiborne Timber Sale, and much of the arguments of the parties pertain to the merits of the claim and not to its timeliness within the five-year prescriptive period at issue. There was no factual dispute that Ethel only later discovered, within five years before this suit, that Claiborne Timber, LLC was Colton’s limited liability company. She only then made inquiry to determine if the price paid was a fair market value. Only within the five years before filing suit did she question the $107,000 debt as a financial burden against the property. Ethel had the burden of proof concerning her discovery of the alleged fraud, and she proved that her discovery occurred within the five years of this suit. Accordingly, plaintiffs’ cause of action for rescission of the Claiborne Timber Sale has not prescribed.

Benton Road Sale

In their original petition, Plaintiffs made the following allegations concerning the November 80, 2005, Benton Road Sale:

1) As was known by Deborah and Col-ton, the terms and consideration paid for the tract of land “was grossly inadequate and unfair to Sanders Family, LLC No. 1, representing a mere fraction of its then current value.”
2) As set forth more fully in the Act of Cash Sale referenced as Exhibit I, on March 29, 2006, Deborah and Colton sold a portion of this tract to the Parish of Bossier for $119,803.32. The tract was sold to Bossier Parish for a long planned right-of-way through the rest of the property for an extension of Wemple Drive, which enhanced the value of the remaining tracts.
1143) As shown by Exhibit J, dated January 18, 2007, Deborah and Colton Sanders sold a portion of this tract to Wood & Wood Property for a purchase price of $310,552.00.

In the supplemental and amended petition, the plaintiffs alleged the following additional facts:

1) During the spring of 2005 Colton began making representations to family members that the LLC was in dire need of money and that a liquidation of immovable property was necessary. The statements were false, misleading and substantially exaggerated. The statements were made by Colton with the intent to deceive and frighten Ethel Sanders and in an attempt to get her to sell the property to the benefit of Colton and Deborah.
2) On May 31, 2005, Deborah Sanders caused Ethel Sanders to grant her an “option” agreement for the subject tract of land. Ethel thought the agreement was a right of first refusal for a tract of land along Benton Road in Bossier Parish.
3) In the option agreement, Ethel Sanders agreed to sell the tract of land to Deborah for the sum of $100,000.
4) Colton and Deborah had reason to know or knew that the tract of land was of substantial value and that plans were underway to extend ‘Wemple Road” across the property, thereby greatly enhancing the value of the property.
5) By fall of 2005 Colton began negotiations with Bossier Parish about the consideration to be paid for the extension of Wemple Road, without advising Ethel Sanders or other members of the Sanders family.
6) Prior to his knowledge of the Wemple Road extension, Colton knew that the value of the tract of land was appreciating rapidly in as much as he had negotiated with third parties for its sale at $600,000. Colton never revealed the existence of these negotiations or the price he had been offered for the land when he dealt with his mother about selling the land to his wife. Colton sought to conceal the real value of the property and obtain the property for the benefit of himself and his wife at a much lower cost than fair market value.
7) On November 30, 2005, Deborah Sanders, with the consent of her husband, presented an act of cash sale to Ethel Sanders for the purchase of the tract for the sum of $100,000, indicating to family members that this price, 20% of the price offered to third parties, was fair market value and necessary because of the dire cash need of the |1BLLC. These assertions were false and misleading and damaged the LLC. Colton threatened to sue his mother if she did not allow them to exercise the option.

At the hearing, when asked about the Benton Road Sale, Colton testified that the purchase price was $100,000. His wife had signed an option agreement for the property on May 31, 2005, which he identified. He testified that he knew nothing about the Wemple Road extension when his wife purchased the property. Colton was also unaware that his mother had earlier listed the property for sale. Colton was shown a real estate listing of the property signed by his mother in 1999 for $593,722.80. Colton testified that the value placed on the property in his father’s succession was $90,000.

Ethel did not recall signing any document listing the Benton Road property in 1999 for $594,000. She recalled that she sold the Benton Road property for $100,000. She knew she signed an option agreement for the property. At the time of the option, she testified that she was not ready to sell the land.

As to the Benton Road Sale, the trial court ruled as follows:

On Property Sale No. 4, Petitioners state that the sale should be annulled because Ethel Sanders believed that an Option Contract was a Right of First Refusal and that Colton and Debbie Sanders knew the price of the property would rise substantially because Wemple Road was to be extended but did not inform Ms. Sanders of this fact. The Court again turns to Ethel Sanders’ own actions during the period in order to properly understand what she understood at the time of the sale. The above referenced removal of property (Parents’ Homeplace) from the LLC and mineral lease performed by Ethel Sanders was executed at nearly the same time as this particular property sale. As stated above, Ms. Sanders performed the removal and mineral lease free from help and influence of her children. She also sought out an attorney to ensure that her desired wishes were carried out appropriately. The Court also takes notice that no 116evidence has been presented to the Court that the Defendants had knowledge of Wemple Road being extended when Colton Sanders asked Ethel Sanders for an option on the property. As such, the Court finds that the prescriptive period applies to Property Sale, No. 4 and that fraud has not been shown by the testimony given.

Plaintiffs’ allegations regarding the Benton Road Sale also state, in our opinion, a cause of action under Civil Code Article 1954. The sale was made directly to Deborah Sanders and is therefore different from the sale to Claiborne Timber, where Colton and Deborah’s purchasing interest was not revealed to Ethel. Nevertheless, the allegations of Colton’s exaggeration of the LLC’s liquidity, the large discrepancy in the price and Colton’s knowledge of the development potential for the property support a claim for breach of the “relation of confidence” which vitiated Ethel’s consent to the option/sale contract.

Not only was there a stated cause of action, the 2005 contracts for the Benton Road Sale occurred well within five years of the filing of this suit in 2007. Therefore, it would be a very difficult burden on the defendants to somehow show that these written contracts in 2005 actually occurred many years earlier so that the cause of action for rescission has prescribed. The only issue for the exception of prescription was this timing issue and not the merits of the Article 1954 claim.

With this imposing burden for the exception of prescription, the offered evidence of the transaction and the trial court’s ruling instead reflect a partial examination of the merits of the ease. Significantly, the Plaintiffs’ allegations of the great discrepancy between the $100,000 price for the sale and the land’s actual value was supported by the evidence of the 2006 and |172007 sales of a small portion of the Benton Road property for approximately $430,000. The acreage in question bordered 320 feet on Benton Road (La. Hwy.3) and was approximately 1,250 feet in length, totaling over 13 acres. The Wemple Road tract was sold by Colton and Deborah to Bossier Parish for $119,000 and comprised a 1.90-acre right-of-way through the tract, providing road frontage lots to the Sanders property on both sides. The sale to Wood & Wood was for a 140-foot by 174-foot lot (approximately 0.6 acre) at the corner of Benton Road and Wemple Road. Therefore, the two sales by Colton and Deborah totaled only 2.5 acres of the 13-acre tract with the improvement of the public roadway contributing to enhance the value of the remaining property. Beyond the allegations of the petition regarding these sales, Plaintiffs also established at the hearing that Ethel had listed the property for sale in 1999 for $594,000.

Colton’s testimony at trial was that in May 2005 when Deborah obtained the option contract for the Benton Road property, he did not have knowledge of the Wem-ple Road project. Nevertheless, he did not testify concerning his assessment in May 2005 of the fair market value of the property. He likewise did not testify that he advised Ethel that the $100,000 price for the property as listed in the option was a fair market value in May 2005.

The trial court’s ruling concerning Col-ton’s lack of knowledge of the Wemple Road project, therefore, was not a ruling on prescription and not a complete factual examination of the merits of the various aspects of Plaintiffs’ claim under Article 1954. Plaintiffs’ allegations that the Benton | iSRoad Sale was prompted by Colton’s representation that the LLC was “in dire need of money,” so as to “frighten” Ethel, was unaddressed by the trial court. Moreover, the trial court’s ruling did not cite Article 1954 and appears to rest primarily on its finding of Ethel’s general competency in other business dealings for the LLC. Yet, as explained above, Ethel’s competency is not the principal focus of an Article 1954 claim, which concerns a trusted party’s inducement of an otherwise competent party.

Accordingly, we reverse the trial court’s dismissal of the claim of the Benton Road Sale. The cause of action for rescission of that sale has not prescribed.

Waller Subdivision Sale

Attached to the original petition was an Act of Cash Sale from the LLC to Deborah Sanders for property in Waller Subdivision, Bossier Parish, LA for the sum of $60,000, dated June 22, 2005. The original petition alleged that on June 22, 2005, Deborah Sanders, acting with the knowledge and consent of Colton, executed the Waller Subdivision Sale. The pleadings alleged that Colton and Deborah “were well aware, the consideration paid to Sanders Family, LLC was grossly inadequate and unfair to Sanders Family LLC for this tract of land.” After remand of the case following the Sanders I ruling, one additional allegation regarding this sale was made in the supplemental petition. The allegation was actually expressed in connection with the supplemental allegations relating to the Benton Road Sale, as quoted above, concerning Colton’s misrepresentations of the LLC’s liquidity in the spring of 2005. At the hearing on the |19exception of prescription, neither Colton nor Ethel testified regarding this sale.

With the allegations concerning Colton’s deception of the financial condition of the LLC and the “grossly inadequate” consideration paid for the property, we find again that a cause of action is stated for the Waller Subdivision Sale. Likewise, with the possibility that one or more of the other prior transactions may be proven as a breach of the “relation of confidence,” such transaction(s) would be relevant as circumstantial evidence concerning the Waller Subdivision Sale. The claim for rescission is not prescribed on the face of the petition, and the defendants offered no evidence showing that the transaction actually occurred outside of the applicable five-year period. Accordingly, the trial court’s dismissal of the Plaintiffs’ claim for rescission of the sale is reversed.

Bienville Parish Sale

In the original petition, Plaintiffs alleged the following facts regarding the $100,000 Bienville Parish Sale dated September 5, 2003:

1)Paragraph 18 described the above-noted transaction and further stated that the 34 acre tract sold included a valuable three bedroom, three and one-half bath home with tongue in groove cypress construction, having a value of approximately $250,000.
2) The thirty four acres and home were purchased for less than one-half of its actual value.
3) Plaintiffs alleged that the terms and conditions of the cash sale deed was not in the best interest of the Sanders Family LLC and the consideration paid was inadequate.
4) On March 22, 2005, Colton and Deborah Sanders executed an oil and gas lease on the 34 acres for consideration of $250-$300/acre.

In the amended and supplemental petition after Sanders I, Plaintiffs 12omade no new allegations regarding the Bienville Parish Sale.

At the hearing, Ethel was questioned regarding a 1998 conveyance of the same 34 acres in Bienville Parish to Col-ton, which she made as manager of the LLC. Ethel recognized her signature on the document, but generally had little recollection of the events. The sale was later rescinded, apparently as the result of a prior family dispute.

From these allegations and the nature of the property conveyed, we do not find that sufficient allegations have been made for the rescission of the sale for grounds other than lesion. Therefore, the trial court’s dismissal of this claim on the exception of prescription is affirmed.

Conclusion

For the reasons expressed, the plaintiffs’ claims regarding the Claiborne Timber Sale, the Benton Road Sale, and the Waller Subdivision Sale have not prescribed, and the trial court’s ruling on those sales is reversed. The trial court’s dismissal of the claim regarding the Bienville Parish Sale is affirmed. Costs of appeal are assessed to appellees.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

STEWART, J., concurring in part and dissenting in part.

STEWART, J.,

concurring in part and dissenting in part.

_jjWhile I agree with the majority in affirming the dismissal of the plaintiffs’ claims regarding the Bienville Parish Sale, I would also affirm the trial court’s ruling that the plaintiffs’ claims as to the other three transactions have prescribed. As such, I respectfully dissent from the majority’s reversal of the trial court’s ruling on the following claims.

As to the claims regarding the Waller Subdivision Sale, I agree with the trial court that the plaintiffs did not amend their petition regarding this transaction and that they did not plead fraud with particularity. Under the applicable one-year prescriptive period for lesion beyond moiety, this claim has prescribed.

The trial court’s ruling that the plaintiffs’ claims regarding the Claiborne Timber Sale and the Benton Road Sale are prescribed was based on findings of fact and credibility determinations made after an evidentiary hearing, on the exceptions. When evidence is introduced to support or controvert objections pleaded, the trial court is not authorized to accept the allegations of the plaintiffs petition as true. Bailey v. Haynes, 37,038 (La.App.2d Cir.4/9/03), 843 So.2d 584, writ denied, 2003-1209 (La.10/10/03), 856 So.2d 1207. The manifest error standard applies on appellate review of an evidentiary hearing on an exception of prescription. Id. See footnote 7 in Cichirillo v. Avondale Industries, Inc., 2004-2894, p. 5 (La.11/29/05), 917 So.2d 424, 428 and cases cited therein. Because the trial court has the opportunity to observe the witnesses as they testify, findings of fact based on credibility determinations are to be afforded great 12deference on appellate review. Foley v. Entergy Louisiana, Inc., 2006-0983 (La.11/29/06), 946 So.2d 144; Rosell v. ESCO, 549 So.2d 840 (La.1989).

The trial court found that the plaintiffs’ witnesses, Amber Rollins and Larry L. Taylor, lacked credibility in testifying that no notary was present when Mrs. Sanders signed the Claiborne Timber Sale deed and no property description was attached to it. Additionally, the trial court found that the notary appeared truthful in testifying that she was present when the deed was signed and that the property description was attached. At the second oral argument before this court, the plaintiffs conceded that the deed was properly con-fected and that the property description was attached. Thus, the trial court’s findings of fact were shown to be correct in this regard.

The trial court also -found that Mrs. Sanders knew she was selling a substantial piece of property to a company interested in it for timber, that she did not believe the property was producing income, and she did not want it to be a financial burden to herself or the LLC. Most importantly, the trial court found that Mrs. Sanders understood her role in the LLC and retained the intellectual capacity in 2005, around the time of the Benton Road Sale, to orchestrate the transfer of a piece of property out of the LLC and into her own name and then to execute a mineral lease on the property without the help of her children. Unlike the majority’s apparent finding, the trial court did not find that the evidence showed Mrs. Sanders to be lacking in business competency and dependent on her son Colton in a “relation of confidence” for business matters at the time of the transactions at issue.

| ¡¡Finally, the trial court found no evidence supporting the allegation that the defendants knew of the Wemple Road extension when the option for the Benton Road Property was obtained from Mrs. Sanders.

The trial court’s findings of fact go the heart of the plaintiffs’ efforts to assert fraud and breach of fiduciary duty claims regarding the Claiborne Timber Sale and the Benton Road Sale. The testimony presented at the evidentiary hearing largely controverted the allegations of the petition. I believe that the majority, rather than reviewing this record for manifest error, has instead imposed its own interpretation to find that the plaintiffs have pled fraud with sufficient particularity to survive the prescriptive challenge.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, DREW, LOLLEY and SEXTON, JJ.

Rehearing denied.

STEWART, J., would grant rehearing.

      . After Zack’s death, Ethel was recognized as his surviving spouse and sent into possession of one-half interest of the community property. The other one-half interest was divided equally between the three children, subject to Ethel’s usufruct.

      . Tract 6 of the included tracts was described as "a three (3) acre tract located within the corporate limits of Ringgold, Louisiana” which encompassed what testimony described as commercial property. The primary focus of the transaction apparently involved only the other five tracts totaling 337.63 acres of rural timberland.

      . In support of its exception of prescription the defendants attached a copy of a document dated May 17, 2004, entitled "Certificate of Members as to Authority of Limited Liability Company" which gave Ethel Sanders the general authority to purchase, sell, donate, transfer, lease, or mortgage property for the LLC. The document also bound the Company and all members to the documents executed by Ethel Sanders and ratified all transaction executed the date of the certificate. The defendants also attached copies of the LLC’s Articles of Organization and Operating Agreement.

      . As a matter of rebuttal and in lieu of Col-ton's further testimony, it was stipulated that he would deny ever having told his mother that a $107,000 mortgage or other debt existed affecting the LLC's property.

      . While we have decided the prescription issues under the 5-year fraud provisions, we pretermit any ruling concerning the allegations of Colton's management or employment by the LLC that urge circumstances which could allow for a fiduciary relationship. See 9:3801; Texana Oil and Refining Co. v. Belchic, 150 La. 88, 90 So. 522 (1922), Neal v. Daniels, 217 La. 679, 47 So.2d 44 (1950); Heart’s Desire, LLC. v. Edwards, 46,222 (La. App.2d Cir.4/27/11), 2011 WL 1630175; Cenla Physical Therapy and Rehabilitation Agency, Inc. v. Lavergne, 94-1538 (La.App. 3d Cir.5/3/95, 657 So.2d 175); Odeco Oil & Gas Co. v. Nunez, 532 So.2d 453 (La.App. 1st Cir.1989), writ denied, 535 So.2d 745 (La. 1989). See also Scurria v. Hodge, 31,207 (La. App.2d Cir. 10/30/98), 720 So.2d 460, writ denied, 99-0011 (La.3/19/99), 739 So.2d 782.