Fairbanks Development, Llc v. Charles Woodrow Johnson And Jessica Lyn Petersen

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #037
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 30th day of September, 2021 are as follows:
BY Crain, J.:
2020-C-01031 FAIRBANKS DEVELOPMENT, LLC VS. CHARLES WOODROW JOHNSON
AND JESSICA LYN PETERSEN (Parish of Ouachita)
AFFIRMED. CASE REMANDED. SEE OPINION.
Retired Judge James H. Boddie, Jr., appointed Justice ad hoc, sitting for McCallum,
J., recused in case number 2020-C-01031 only.
Weimer, C.J., additionally concurs and assigns reasons.
Hughes, J., dissents and assigns reasons.
Genovese, J., dissents and assigns reasons.
Griffin, J., dissents for the reasons assigned by Justice Hughes and Justice Genovese.
Boddie, J., additionally concurs for the reasons assigned by Chief Justice Weimer.

SUPREME COURT OF LOUISIANA
No. 2020-C-01031
FAIRBANKS DEVELOPMENT, LLC
VS.
CHARLES WOODROW JOHNSON AND JESSICA LYN PETERSEN
On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Ouachita
CRAIN, J.
We must decide which of the following determines one’s status as a co-owner
of immovable property: the authentic act conveying ownership of the property , or
the source of the funds used to pay the purchase price. We find the authentic act
controls and affirm the court of appeal’s judgment.
FACTS AND PROCEDURAL HISTORY
Jessica Petersen and Charles Johnson met as teenagers. They began a
relationship and eventually started living together while Petersen was attending
college in Georgia. Although Johnson worked as a mechanic, the couple’s lifestyle
was funded almost entirely by a trust created for Petersen’s benefit by her
grandfather. In 2000 they returned to Louisiana and purchased a house and
surrounding acreage in Ouachita Parish . The act of sale expressly convey s
ownership of the property to Johnson and Petersen, both of whom signed the deed
before a notary public and two witnesses. The purchase price was paid in full at
closing with funds from Petersen’s trust. Shortly thereafter Petersen and Johnson
acquired additional acreage adjacent to the original tract. Th is second act of sale
also conveys ownership of the property to Johnson and Petersen, and both signed the
deed before a notary public and two witnesses . The purchase price for this parcel
 Retired Judge James Boddie, Jr., appointed Justice ad hoc, sitting for Justice Jay B. McCallum.
09/30/21

2

was paid with funds loaned to Petersen by her mother. Both pieces of immovable
property will be collectively referred to hereinafter as “the property.”
At the time of the purchases, Petersen and Johnson were not mar ried. They
married soon afterward, had the first of three children, and began a life in their new
home. Two outbuildings, a concrete driveway , and an entrance gate were added to
the property, again using funds from Petersen’s trust. Throughout the marriage, the
couple remained financially dependent on the trust, as neither Petersen nor Johnson
worked outside the home.
Their relationship ended in divorce in 2006. Petersen was granted exclusive
use of the home in the divorce proceeding and remained there until moving out of
town and eventually out of state. A prospective buyer offered to purchase the
property, but Johnson would not agree to the sale. In 2017 Johnson moved back into
the house with his current wife and their children.
In 2018 Petersen sold an undivided one -half interest in the property to
Fairbanks Development, LLC., which then instituted this proceeding to partition the
property, naming both Petersen and Johnson as defendants. Petersen filed a cross -
claim against Johnson claiming to be sole owner of the property , a lleging her
separate funds were used to purchase the property . Petersen specifically requested
a judgment “naming and declaring her to be the owner of all the property.” Notably,
the cross-claim does not seek to reform or rescind the acts of sale conveying the
property to both Petersen and Johnson. Petersen makes no claim of error, fraud, or
duress in the execution of those authentic acts, nor does she allege the acts were
modified b y any subsequent agreement between the parties . Her claim of full
ownership is based entirely on the fact that she paid for the property.
The claims proceeded to trial where there was no dispute about the essential
aspects of the transactions. Johnson and Petersen acknowledged the property was
acquired through the two acts of sale that name both of them as purchasers. Petersen

3

wanted Johnson’s name included in the deeds, and the transactions were explained
to them at the closings. Both gave similar explanations for Johnson being named a
purchaser. According to Johnson:
We were trying to sta rt, you know, life together, and we were
purchasing the property to live on . . . . We were moving from Georgia
and buying us a house and property and fixing to have kids and have a
family.

Petersen explained, “ Like he said, we were starting a life together, and we had
planned on having children and such.” The parties likewise agreed that Johnson did
not contribute to the purchase price of the property or pay for any of the
improvements, although Johnson testified he did maintain and repair the property .
The money to purchase and improve the house came from Petersen’s trust fund, and
the money to buy the additional acreage was a loan from Petersen’s mother that
Petersen repaid.
When the marriage failed, it was equally clear Petersen regretted her decision
to include Johnson as an owner:
The only thing I can tell you is [I was] young and dumb and made
mistakes. That was my first love . . . . We were going in as partners,
and he led me to believe he was going to do his portion of the
partnership . . . . [H]e never contributed anything back to the
relationship, to the marriage, emotionally, financially, anything.

In written reasons, t he trial court found Petersen acquired sole ownership of
the property because she paid the purchase price. The court further found Petersen
conveyed half of her interest to Fairbanks and retained the remaining half interest.
The court ordered the property partitioned by licitation. A judgment was signed
decreeing Petersen and Fairbanks to be owners of an undivided one-half interest each
in the property, declaring Johnson to have no ownership interest in the property, and
ordering the property be partitioned. Johnson appealed.
The court of appeal reversed the ownership determination and held Johnson
owns an undivided half interest i n the property. See Fairbanks Development, LLC

4

v. Johnson, 53,427 (La. App. 2 Cir. 4/22/20), 295 So. 3d 1279, 12 91. This court
granted Petersen’s writ application. Fairbanks Development, LLC v. Johnson , 20-
01031 (La. 12/8/20), 305 So. 3d 865.
DISCUSSION
The form requirements for conveyances of immovable property are well
established. A transfer of immovable property must be made by authentic act or by
act under private signature. La. Civ. Code art. 1839; see also La. Civ. Code art.
2440. An authentic act constitutes full proof of the agreement it contains, as against
the parties, their heirs, and successors by universal or particular title. La. Civ. Code
art. 1835. Testimonial or other evidence may not be admitted to negate or vary the
contents of an authentic act or an act under private signature. La. Civ. Code art.
1848. However, in the interest of justice, testimonial or other evidence may be
admitted to prove such circumstances as a vice of consent or to prove the written act
was modified by a subsequent and valid oral agreement. See id. When the law
requires a contract to be in written form, the contract may not be proved by testimony
or by presumption, unless the written instrument has been destroyed, lost, or stolen.
La. Civ. Code art. 1832.
To establish his ownership, Johnson relies on the acts of sale whereby the
former owners of the property expressly conveyed their ownership interests to him
and Petersen. These authentic act s constitute full proof of the agreement s they
contain. See La. Civ. Code art. 1835. Petersen does not assert a vice of consent
invalidates the acts. No evidence was offered suggesting the prior owners
mistakenly transferred the property to Petersen and Johnson due to some error, fraud,
or duress. See La. Civ. Code arts. 1848 and 1948. To the contrary, t he evidence
uniformly establishes the conveyances were prepared, explained, and executed
precisely as the parties directed and intended: the sellers conveyed ownership of the
property to both Petersen and Johnson. The conveyances were in accordance with,

5

not contrary to, Petersen’s instructions. While Petersen later regretted including
Johnson in the conveyances, that regret, however legitimate, is not a vice of consent
that permits negating the terms of authentic acts that correctly reflect the parties’
intentions when the documents were executed. See La. Civ. Code arts. 1835 and
1848.
Despite the authentic acts of sale, Petersen and Fairbanks argue Johnson is not
a co-owner of the property. They contend, and the trial court agreed, that Petersen
acquired sole ownership of the property because she alone paid the purchase price.
The payment of the purchase price , according to their argument, demonstrates a
“mutual intent . . . that Petersen retain full ownership” of the property . To bypass
the authentic acts that expressly say otherwise, Petersen and Fairbanks rely on
Louisiana Civil Code article 797, which provides:
Ownership of the same thing by two or more persons
is ownership in indivision. In the absence of other provisions of law
or juridical act, the shares of all co-owners are presumed to be equal.

Petersen and Fairbanks contend this provision allows them to prove Johnson is not
a co-owner by “rebutting the presumption of equal shares.” They further maintain
the trial court’s conclusion in that regard is a factual finding subject to the manifest-
error standard of review. We disagree with this interpretation of Article 797.
The interpretation of a statute presents a question of law subject to de
novo review. Kirt v. Metzinger , 19 -1162 (La. 4/3/20), ___ So. 3d ___
(2020WL1671571, *3). When a law is clear and unambiguous and its application
does not lead to absurd consequences, its language must be given effect; and its
provisions must be construed to give effect to the purpose indicated by a fair
interpretation of the language used. See La. Civ. Code art. 9; La. R.S. 1:4 . Words
and phrases must be read in context and construed according to the common and
approved usage of the language. La. R.S. 1:3. Courts are bound to give effect, if
possible, to all parts of a law and to construe no sent ence, clause, or word as

6

meaningless and surplusage if a construction giving force to and preserving every
word can legitimately be found. See Kirt, ___ So. 3d at ___ (2020WL1671571, *3).
Article 797 has two sentences, each of which is significant. The first sentence
declares that “ownership in indivision” occurs when two or more persons own the
same thing. Louisiana Civil Code article 480 similarly provides, “Two or more
persons may own the same thi ng in indivision, each having an undivided share.”
Under these provisions, t he legal status of co -ownership is not the result of a
presumption. It arises out of “[o]wnership of the same thing by two or more
persons.” See La. Civ. Code art. 797. When that fact exists, each of the involved
individuals is a “co-owner,” and their ownership is “in indivision,” meaning it “bears
upon the whole . . . of the thing held in common . . . striking every molecule of the
thing.” 1 Planiol & Ripert, Treatise on the Civil Law pt. 2, ch. 5, no. 2497, at 473
(Louisiana State Law Inst. trans., 12th ed. 1959). Here, Johnson and Petersen both
rely on the same source to establish their ownership of the property: the acts of sale
from the prior owners conveying the property to Johnson and Petersen. As a result
of those juridical acts, Johnson and Petersen acquired ownership of the same thing
and thus became co-owners under Articles 797 and 480.
The second sentence of Article 797 addresses the more specific question of
each co-owner’s share of ownership: “In the absence of other provisions of law or
juridical act, the shares of all co -owners are presumed to be equal.” Under this
sentence, if the ownership shares are not specified in the juridical act or provision of
law vesting the ownership, the shares are presumed equal. In the context of a
juridical act, this presumption of equal shares “functions as a rule of interpretation
of that act.” Symeon C. Symeonides & Nicole Duarte Martin, The New Law of Co-
Ownership: A Kommentar, 68 Tul. L. Rev. 69, 85 (1993). A co-owner can rebut the
presumption of equal shares with evidence establishing a contrary intention. See id.

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To that end, courts have sometimes resolved share disputes between co-owners by
looking to the amount of compensation contributed by each to the purchase price.1
However, this is not a case where parties acknowledge they are co-owners but
disagree about the share owned by each. Instead, Petersen and Fairbanks contend
Johnson is not a co-owner at all. In other words, they assert Article 797 allows them
to “rebut” the presumption of equal shares to the point of proving that Johnson’s
share of ownership is zero. Construed in this manner, Article 797’s rebuttable
presumption would not merely function as a rule of interpretation of the authentic
acts; it would permit contradiction of the authentic acts. The article cannot
reasonably be construed to that end.
Article 797, by its express terms, applies only when there is “[o]wnership of
the same thing by two or more persons.” The fact of co-ownership is a prerequisite
to the article’s application. Here, that fact is established by the authentic acts of sale
conveying the property to Petersen and Johnson. Their co-ownership of the property
then triggers application of Article 797’s rebuttable presumption that “the shares of
all co-owners are presumed equal.” (Emphasis added.) Fairbanks and Petersen
attempt to use this provision to negate the very fact that renders the article applicable:
Johnson and Petersen’s co -ownership of the property . Article 797’s rebuttable

1 See Oxford v. Barrow , 43 La. Ann. 863, 866 , 9 So. 479 (1891); LeDoux v. LeDoux , 534
So. 2d 103, 107 (La. App. 3 Cir. 1988); see also Manning v. Harrell, 59 So. 2d 389, 391 (La. App.
2 Cir. 1952); Succession of Washington , 140 So. 2d 906, 911 (La. App. 4 Cir. 1962); In re
Succession of O'Krepki , 16-50 (La. App. 5 Cir. 5/26/16), 193 So. 3d 574, 582, writ denied, 16-
1202 (La. 10/10/16), 207 So. 3d 406. Other cases have found the financial contribution was not
determinative of the co-owner’s specific share based on the particular facts of the case. See Olson
v. Olson , 48,968 (La. App. 2 Cir. 4/23/14), 139 So. 3d 539, 545, writ granted , 14-1063 (La.
10/3/14), 149 So. 3d 275, and writ denied as improvidently granted , 14-1063 (La. 1/28/15), 159
So. 3d 448; Tassin v. Tassin , 14-488 (La. App. 3 Cir. 12/3/14) , 161 So.3d 818, 825 ; Deklerk v.
Deklerk, 14-0104 (La. App. 4 Cir. 7/29/15), 174 So. 3d 205, 210 ; Slimp v. Sartisky, 11-1677 (La.
App. 4 Cir. 9/17/12), 100 So. 3d 901, amended on reh'g in part (10/11/12), writ denied, 12-2430
(La. 1/11/13), 107 So. 3d 616; Succession of LeBlanc, 577 So. 2d 105, 108 (La. App. 4 Cir. 1991).

8

presumption is only available when property is owned by more than one person ; it
cannot be used to prove the property is not owned by more than one person.
Petersen and Fairbanks’ proposed interpretation is also based on the faulty
premise that payment of the purchase price reflects a “mutual intent” that Petersen
be the sole owner of the pro perty. That suggestion cannot be reconciled with the
undisputed fact that, contemporaneous with that payment, Petersen executed
authentic acts of sale that, at her direction, conveyed the property to both herself and
Johnson. These authentic acts, which have not been contested, constitute full proof
of the agreements and cannot be negated or varied by testimonial or other evidence.
See La. Civ. Code arts. 1835 and 1848. When the words of a contract are clear and
explicit and lead to no absurd consequences, no further interpretation may be made
in search of the parties’ intent. La. Civ. Code art. 2046. As recognized by the court
of appeal, “If, at the time the purchases were made, Petersen intended to be the sole
owner of the property, she could have mad e the purchases solely in her name.”
Fairbanks, 295 So. 3d at 1286.
This same conclusion was reached in Morrison v. Richards, 343 So.2d 375,
376 (La. App. 4 Cir. 1977), where immovable property was conveyed to a husband
and wife . The couple had a prenuptial agreement that maintained their separate
property regimes. Although both of their names were on the deed, t he husband
claimed he was the sole owner of the property because he paid for it. The wife’s
son, an heir, relied on the authentic act of sale to establish his mother’s ownership
of an undivided one-half interest in the property. The son argued parol evidence was
inadmissible to controvert the provisions of an authentic act. Morrison, 343 So. 2d
at 376. The trial court disagreed and found the husband to be the sole owner. The
court of appeal reversed, explaining:
The authentic act of sale before the notary and two witnesses is
conclusive proof of the resulting co -ownership of the property by Mr.
and Mrs. Richards. An authentic act is full proof of the agreement

9

contained therein and cannot be attacked by parol evidence in the
absence of allegations and proof of fraud, error, a counter letter,
interrogatories or admissions of facts.

Oxford, Manning and Washington [see footnote 1 above] relied on by
the trial judge only permit the introduction of evidence for the limited
purpose of determining the respective interests of co -vendees listed in
an authentic act, when such act is silent as to that issue. [Mr.] Richards
should not have been allowed to introduce evidence to contradict what
was actually contained in the act, that is, an ownership interest in Mrs.
Richards.

Morrison, 343 So. 2d at 377 (citations omitted). We agree with this analysis and
conclusion. Article 797’s rebuttable presumption of equal shares cannot be used to
divest a co -owner of his entire interest in immovable property in contravention of
the authentic act that expressly conveys the interest to him. See La. Civ. Code arts.
1839, 1835, 1848. In short, Article 797 cannot be used to remove a co-owner’s name
from a valid deed.
Our conclusion is further supported by Mitchell v. Clark, 448 So. 2d 681 (La.
1984), where this court held ownership of immovable property is determined by the
authentic act of sale conveying it, not the source of the funds used to pay the purchase
price. In Mitchell, the plaintiff negotiated the purchase of a house, paid the full
purchase price, and directed the seller to name her nephew as the purchaser in the
deed. The seller complied and executed an authentic act conveying the property to
Mitchell’s nephew. See Mitchell, 448 So. 2d at 683. After the sale, Mitchell moved
into the house, made improvements, and paid all related expenses, living in the home
as if she owned it. Her nephew eventually sought to occupy the house, prompting
Mitchell to file suit seeking to have the act of sale changed to identify her, rather
than her nephew, as the owner of the property. See Mitchell, 448 So. 2d at 683.
At trial, over defendant’s objection, Mitchell testified she intended for her
nephew to receive the property at her death. She directed the seller to convey the
property directly to her nephew to avoid t he future necessity and expense of a
succession proceeding. The trial court allowed the testimony, found Mitchell to be

10

“the true vendee,” and ordered the clerk of court to transfer the property into
Mitchell’s name. The court of appeal reversed, finding the trial court erred in
allowing parol evidence t o prove title to immovable property. This court agreed,
explaining:
[T]he trial judge should not have permitted the oral or testimonial proof
of any facts relating to the land purchase because this litigation
concerns the ownership of an immovable whose sale was effected by a
written act. No mutual error in the description of lands is claimed. Nor
is this an action by a vendor who alleges fraud or error, or by an heir or
a creditor who argues that no sale has taken place and that the property
remains in the vendor’s estate.

By paying the purchase price, Mitchell had a right to demand that a
deed translative of title be executed in her favor; she chose, instead, to
have the property transferred to her nephew. The property was
conveyed in accordance with the plaintiff’s instructions. She brings
this action not based on error, but based on a change of mind.

Mitchell, 448 So. 2d at 684.
The same is true here. It is undisputed t he property was conveyed in
accordance with Petersen’s instructions. She does not claim the conveyances should
be rescinded or reformed due to some mutual error or fraud. Instead, years after the
transactions, she regretted that decision after her relationship with Johnson failed,
changed her mind, and wanted sole ownership of the property. While we are not
unsympathetic, we also cannot disregard the clear terms of authentic acts prepared,
explained, and executed in accordance with the parties’ intentions. See La. Civ.
Code arts. 1835 , 1848, and 2 046. The trial court erred as a matter of law by
concluding that Petersen’s payment of the purchase price vested her with sole
ownership of the property when the authentic acts of sale expressly provide
otherwise.

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CONCLUSION
We affirm the court of appeal’s judgment, reversing the trial court’s judgment
in part and remanding for further proceedings.2
AFFIRMED; CASE REMANDED.

2 The court of appeal affirmed th e portion of the trial court’s judgment ordering a partition
of the property by licitation. No party sought further review of that order. The court of appeal also
noted that both Fairbanks and Petersen asserted reimbursement claims against Johnson. Because
the trial court found Johnson was not a co -owner, it did not address the reimbursement claims.
The court of appeal observed the reimbursement claims were not raised on appeal and, given the
lack of evidence related thereto, “are issues for another day.” Fairbanks, 295 So. 3d at 1291, n.5.
We agree the parties’ reimbursement claims may be considered on remand in connection with the
partition by licitation and express no opinion on the merits of those claims.

09/30/21
SUPREME COURT OF LOUISIANA
NO. 2020-C-01031
FAIRBANKS DEVELOPMENT, LLC
VS.
CHARLES WOODROW JOHNSON AND
JESSICA LYN PETERSEN
On Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Ouachita
WEIMER, C.J., additionally concurring.
I agree with my colleague’s analysis. I additionally concur based on the
Louisiana Civil Code concept of cause. See La. C.C. arts. 1966.1 Under the cause
concept, Jessica Petersen’s payment of the funds for the purchase of the property is
of no moment. The cause or reason for her purchase of the property and the
placement of her name and the name of Charles Johnson, as purchasers, on the
property deeds was to further the goal of her and Johnson “starting a life together,”
as each testified. Indeed, they were subsequently married and had children together.
Noteworthy is the absence in the property deeds of any resolutory or suspensive
condition relative to the vesting of ownership.
As La. C.C. art. 1967 states in part, “[c]ause is the reason why a party obligates
himself.” Article 1967 “defines cause in terms of ‘reason,’ rather than ‘motive,’ for
the purpose of enhancing the importance of judicial discretion in characterizing an
obligation as enforceable.” La. C.C. art. 1967, 1984 Revision Comment (a) (citing
1 La. C.C. art. 1966 provides that “[a]n obligation cannot exist without a lawful cause.”

“1 Litvinoff, Obligations 381-382, 390-396 (1969)”). As 1984 Revision Comment
(c) explains:
“[C]ause” is not “consideration.” The reason why a party binds himself
need not be to obtain something in return or to secure an advantage for
himself. An obligor may bind himself by a gratuitous contract, that is,
he may obligate himself for the benefit of the other party without
obtaining any advantage in return.[2]
In Slimp v. Sartisky, 11-1677, pp. 24-27 (La.App. 4 Cir. 9/17/12), 100 So.3d
901, 917-919, amended in part on reh’g (10/11/12), authored by Judge Max Tobias,
Jr., the court found that an unmarried couple intended to own a house in indivision
despite the disparity in their financial means, where the male contributed significantly
more toward the purchase price. Of importance to the Slimp court was the fact that
“[t]he parties were well aware of the disparity in their financial means” before
purchasing the house, and the couple had been “living together for approximately six
years” before deciding to purchase the home. Id., 11-1677 at 27, 100 So.3d at 919.
2 The astute and multi-lingual LSU Professor Alain Levasseur, who has studied, written about, and
taught Obligations, made the following observations regarding cause:
“[C]ause,” has a ... hectic path. In the Civil Code of 1808, the word “cause” is not
found in the French version of the articles on “Essential conditions for the validity
of Conventions.” In the English version of these articles, the word “purpose” can be
found in article 8. But the title of Section IV is “Of The Cause” and the three articles
which make up this Section only use “cause.” In the Civil Code of 1825, the word
“cause” is used in the French text of article 1779 while the word “purpose” is used
in the English version. The title of Section IV has become in English: “Of the Cause
or Consideration of Contracts” and the articles of this Section, in their English
version, use the word “cause” only. It is later in article 1896, where “cause” is
defined, that the word “consideration” appears. But, interestingly enough, the French
version of this article uses the word “consideration.” It is obvious that the word
“consideration,” with the acute accent, is used in its own legal and original sense in
the civil law .... The present Civil Code of Louisiana makes use not only of the word
“cause” itself, but more importantly also of its legal content as defined in article
1967-1 in this form: “Cause is the reason why a party obligates himself.” An
unofficial commentary which appears under this article adds that in this article,
“cause is not consideration.” Louisiana Civil Law has remained faithful to the
historical concept of “cause” of the civil law, and it still exists today in the French
Civil Code, the Quebec Civil Code, and the Argentinean Civil Code. It remains a
concept “common” to many civil law jurisdictions. [Footnotes omitted.]
Alain Levasseur & Vicenç Feliú, The English Fox in the Louisiana Civil Law Chausse-Trappe: Civil
Law Concepts in the English Language; Comparativists Beware!, 69 La. L. Rev. 715, 728-29 (2009).
2

Based on those facts, the Slimp court determined that the male’s contributions to the
purchase were not in contemplation of marriage, nor did he expect reimbursement
from his partner when he indicated that she did “not have to contribute any more than
she was already paying for her [previous] home.” Id. After observing the text of La.
C.C. arts. 1966 and 1967 and the comments to Article 1967, the Slimp court stated:
Louisiana does not follow the common law tradition that requires
consideration to effect an enforceable contract. Rather, the mere will of
the parties will bind them, without what a common law court would
consider to be consideration to support a contract, so long as the parties
have a lawful “cause.” The cause need not have any economic value.
Sound/City Recording Corp. v. Solberg, 443 F.Supp. 1374, 1380
(D.C.La.1978).
Slimp, 11-1677 at 24-25, 100 So.3d at 918 (quoting Aaron & Turner L.L.C. v.
Perret, 07-1701, p. 7 (La.App. 1 Cir. 5/4/09), 22 So.3d 910, 915). The Louisiana
Civil Code does not adopt the common law’s so-called “peppercorn”3 theory of
consideration or require something in exchange. Instead, the civil law concept of
cause allows one to be obligated by that individual’s will only. See Slimp, 11-1677
at 25, 100 So.3d at 918 (quoting Aaron & Turner L.L.C., 07-1701 at 7, 22 So.3d at
915). As recognized in Slimp:
The difference has been analogized to a civilian contract-consent
approach compared to a common law contract-bargain approach.
Consideration is an objective element required to form a contract,
whereas cause is a more subjective element that goes to the intentions
of the parties. Therefore, in Louisiana law, a person can be obligated by
both a gratuitous or onerous contract. Bains v. Young Men’s Christian
Association of Greater New Orleans, 0006-1423, p. 5 (La.App. 4 Cir.
3 Peppercorn is “[a] small or insignificant thing or amount; nominal consideration” used to support
the formation of a binding contract. BLACK’S LAW DICTIONARY 1156 (7th ed. 1999). See In re
SemCrude, L.P., 504 B.R. 39, 55 n.54 (Bankr. D. Del. 2013), adopted sub nom. In re Semcrude,
L.P., No. 14-CV-357 (SLR), 2015 WL 4594516 (D. Del. July 30, 2015), aff’d sub nom. In re
SemCrude L.P., 864 F.3d 280 (3d Cir. 2017) (quoting Chappell & Co. Ltd. v. Nestle Co. Ltd.,
[1960] A.C. 87 (H.L. 1959)) (“The English House of Lords has observed that ‘[a] peppercorn does
not cease to be good consideration if it is established that the promisee does not like pepper and will
throw away the corn.’”).
3

10/3/07), 969 So.2d 646, 649, writ denied, 2007-2146 (La.1/7/08), 973
So.2d 727.
Id. (quoting Aaron & Turner L.L.C., 07-1701 at 7-8, 22 So.3d at 915). Applying
this reasoning, the Slimp court found the parties intended to be co-owners of the
house. The case makes it clear that the intent of the parties at the time of the
formation and execution of the contract is critical.
In the instant matter, as noted by the appellate court, at the time they signed the
property deeds, Ms. Petersen and Mr. Johnson intended to be partners. Ms. Petersen
could have placed the property solely in her name if she intended to be the sole
owner. Alternatively, if the parties intended something other than co-ownership, they
could have specifically stated their intent regarding each’s ownership interests in the
property deeds, or they could have executed a counterletter or declaration to express
their intent relative to ownership of the property and recorded it in the conveyance
records. See La. C.C. art. 2025.4 By doing none of these things, the will of the
parties at the time the property deeds were executed, as confirmed by Ms. Petersen,
was that Ms. Petersen and Mr. Johnson would be co-owners, even in the absence of
any financial contribution by Mr. Johnson. This finding is supported by Ms.
Petersen’s testimony that they “were going in as partners” and had agreed to “start[]
a life together.” Although Ms. Petersen now contends she was “young and ... made
4 La. C.C. art. 2025 provides:
A contract is a simulation when, by mutual agreement, it does not express the
true intent of the parties.
If the true intent of the parties is expressed in a separate writing, that writing
is a counterletter.
Furthermore, “[a] sale . . . of an immovable must be made by authentic act or by act under private
signature.” La. C.C. art. 2440; see La. C.C. art. 1839. “When a writing is required for the validity
of a contract, other acts related to that validity also require a writing.” 5 SAUL LITVINOFF,
LOUISIANA CIVIL LAW TREATISE: THE LAW OF OBLIGATIONS § 12.12 at 295 (2d ed. 2001). The
record here is devoid of a separate written contemporaneous collateral agreement relative to
ownership between the purchasers in connection with either of the sales.
4

mistakes” with regard to the purchases of the property, it is noteworthy that she made
no attempt to make any changes to the deeds during the subsequent six years she and
Mr. Johnson were together. The fact that she now regrets “mistakes” which she may
have made when she was younger does not change the nature of her intent at the time
the parties made the purchases.
In conclusion, I further note it would be a legal and logical anomaly for
someone to be declared a co-owner, yet own zero percent of the property. One is
either a co-owner or not a co-owner. However, one with a zero percent co-ownership
interest cannot be a co-owner.
For these reasons and those set forth in the majority opinion, I agree with the
appellate court’s finding that Ms. Petersen and Mr. Johnson mutually intended to be
co-owners and that, based on the law of cause, intent is sufficient to consummate the
transaction.
5

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-CA-01031
F
AIRBANKS DEVELOPMENT, LLC
VS
.
C
HARLES WOODROW JOHNSON AND
JESSICA LYN PETERSEN
O
n Writ of Certiorari to the Court of Appeal, Second Circuit,
Parish of Ouachita
H
ughes, J., dissenting.
R espectfully, the majority opinion presents a false choice. The issue is not
Mr. Johnson’s “status as a co-owner.” He most certainly is a co-owner. There is no
question concerning whether the authentic act or the source of funds determines this
“status” of co-owner, it is the authentic act, always. While the analysis below and
argument have been less than precise, it is the duty of this court to properly frame
the issue and apply the correct law to the facts.
W hen two people are named as buyers and both sign an act of sale, they are
co-owners. Cause and intent and plans for the future are irrelevant. Title examiners
do not search for “cause” or calculate future plans when running a title in the
conveyance records. There is no contract between the buyers requiring cause, they
are co-owners by definition and operation of law. The only contract is between the
buyers and the seller. The seller’s “cause” is to get the purchase price. The buyers’
“cause” is to get the property.
It is undisputed that Mr. Johnson did not contribute to the purchase price in
this case. But let’s suppose that Mr. Johnson put up 25% of the purchase price, and
30 minutes after the closing on their property, he and Ms. Petersen “flipped” the
property for a huge profit. Johnson and Petersen would convey a perfectly

2

merchantable title, and the new buyer would receive a good and clear title that could
immediately be sold again or mortgaged without hindrance.
The rub, perhaps, may come when the closing attorney goes to distribute the
sales proceeds to Mr. Johnson and Ms. Petersen. The law presumes that they should
each receive half. However, at this point, Ms. Petersen might perhaps demur. Since
the law provides only a presumption, she may wish to offer evidence that the shares
of ownership are not equal, rather that Mr. Johnson’s share is 25% and hers is 75%,
based on proof that is what they each paid toward the purchase price. If these facts
are proven, than Ms. Petersen would be entitled to 75% of the sales proceeds.
Does this court hold that Mr. Johnson would come out better by contributing
nothing rather than 25%?
Louisiana Civil Code article 797 provides as follows:

Ownership of the same thing by two or more persons is ownership in
indivision. In the absence of other provisions of law or juridical act,
the shares of all co-owners are presumed to be equal.

The shares of co-owners are presumed to be equal. But if the presumption is
overcome, which the law certainly allows, and the shares of ownership are expressed
as a percentage, then there are a hundred possibilities. A factual finding of a 0/100
split has the same validity as one of 25/75 or 60/40. It does not change the law or
the status of the co-owners as co-owners. No one can go out to the courthouse and
erase a name off the title. Both signatures would still be required to sell or mortgage
the property. There is no legal or logical j ustification for treating a 0/100 split any
differently than a 25/75 split. The status of the parties as co-owners is not “changed,”
the only issue is how the spoils are to be divided.
The majority opinion states that “this is not a case where the parties
acknowledge that they are co-owners but disagree about the shares owned by each.
Instead, Relators contend Johnson is not a co-owner at all.”

3

Respectfully, I question that assessment. In brief to this court, Ms. Petersen
assigns as error that the court of appeal was in error in finding that Ms. Petersen
“failed to sustain her burden of rebutting the presumption of equal ownership… .”
Even so, this court is not bound by less than precise analysis or argument. The fact
is, this case is precisely a case where there are co-owners and a factual finding has
been made that the presumption of equal shares has been overcome. The deed
controls, the parties are co-owners, and the factual determination by the trial court is
subject to a manifest error review.

09/30/21
S
UPREME COURT OF LOUISIANA
No
. 2020-C-01031
FAI
RBANKS DEVELOPMENT, LLC
VS.
CHARLES WOODROW JOHNSON AND JESSICA LYN PETERSEN
O
n Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Ouachita
GEN
OVESE, J., dissents and assigns the following reasons.
I
respectfully dissent from the majority opinion in this case, which effectively
converts the rebuttable presumption of co -ownership in indivision set forth in La.
C.C. art. 797 and related jurisprudence into an irrefutable presumption in all cases
where one party asserts that the other party made no contribution to the purchase of
property and thus has no share in that property. As discussed below, I disagree with
the majority’s conclusion that the trial court “erred as a matter of law” in examining
the parol evidence in this case and determining that Johnson’s share in the property
was zero. In my view, the court of appeal inappropriately substituted its judgment
for that of the trial court, as the record provides a reasonable factual basis for the
trial court’s finding that Johnson made no contribution toward the purchase, and this
finding was not clearly wrong. Stobart v. State through Dep’ t of Transp. & Dev .,
617 So.2d 880, 882 (La.1993). Because no valid gratuitous contract existed between
the parties, I would reverse the court of appeal and affirm the trial court’s judgment
finding that Johnson never had an ownership interest in the subject property.
As the parties were not married at the time the property was purchased, the
rights of the parties with respect to the property must be determined solely pursuant
to the Louisiana Civil Code regarding ownership in indivision. In 1990, the
Louisiana legislature added La. C.C. art. 797 to the rules of co-ownership, which

2

specifies that the shares of all co-owners are presumed to be equal in the absence of
other provisions of law or j uridical acts.1 This article is in keeping with the then-
existing standard in jurisprudence, which has not been overruled:
In such instances where property is acquired by several vendees and
their specific shares are not stipulated in the act of conveyance, a
presumption arises that such interests shall be considered equal. The
presumption is rebuttable to the extent that the court will decree
ownership in pro portion to the amount and consideration contributed
by each of the vendees.

Succession of LeBlanc, 577 So.2d 105, 107 (La.App. 4th Cir.1991) (citing Manning
v. Harrell, 59 So.2d 389 (La.App. 2nd Cir.1952)).2
This Court has yet to render an opinion pursuant to La. C.C. art. 797, and there
is little jurisprudence exploring the means by which the presumption of equal
ownership of an item held in indivision may be rebutted pursuant to this article. As
noted by the majority, the trial court found that Johnson had no share of ownership
of the property based on the evidence presented, despite the appearance of his name
on the acts of sale. In my view, falls squarely within in the parameters of La. C.C.
art. 797 and the related jurisprudence, which indeed allow introduction of parol
evidence to determine ownership “in proportion to the amount and consideration
contributed by each of the vendees, ” in explicit derogation of the otherwise
presumed interpretation of an authentic act. LeBlanc, 577 So.2d at 107.3 Where that

1 Notably, Johnson’s brief argues that, where there are no provisions of law or juridical acts
specifying the ownership shares, La. C.C. art. 797 creates an “irrebuttable conclusive
presumption.” However, Johnson cites no authority for this conclusion, which is not supported by
either jurisprudence or the plain language of the article.

2 The presumption of equal ownership was repeatedly examined in cases where unmarried couples
were living together, as the law at the time deemed that couples living in “open concubinage” were
legally prohibited from gifting each other any donation of immovable s; thus, it was important to
determine whether the “concubine” contributed anything independent of the concubinage t oward
an immovable purchase when her nam e was on a deed of sale along with her “paramour.” See,
e.g., Brown v. Brown, 459 So.2d 560 (La.App. 1st. Cir.1984); Succession of Washington, 140 So.2d
906 (La.App. 4th Cir.1962); Manning, 59 So.2d 389. As the laws pertaining to this antiquated legal
paradigm have now been repealed, the related jurisprudence is largely obsolete.

3 Where an act of sale of immovable property is silent as to the proportions of the respective
interests of the co-vendees listed, our jurisprudence allows the introduction of parol evidence for
the limited purpose of determining those respective interests. In re Succession of O’Krepki, 16-50,
pp. 12- 13 (La.App. 5 Cir. 5/26/16), 193 So.3d 574, 582, writ denied sub nom. Succession of

3

amount and consideration is found to be entirely absent and where no valid
gratuitous contract exists between the parties, as in this case, it is my view that the
trial court does not legally err or abuse its discretion in finding that a vendee listed
on an act of sale has no ownership share.
I find the cases relied upon by the majority to be readily distinguishable from
the present one. In Morrison v. Richards, 343 So.2d 375 (La.App. 4 Cir.), writ denied
345 So.2d 503 (La. 1977), a husband and wife with a separate property regime
purchased a house. After the wife’s death, her husband asserted that the house had
been purchased with his separate funds, claiming that her two sons from a prior
marriage had no interest in the property. However, noting that both parties were
listed on the authentic act of sale, the court of appeal affirmed the trial court’s finding
that the husband had not rebutted the presumption that the wife had an undivided
one-half interest in the property, further stating:
Parol evidence can be introduced to controvert an authentic act where
admissions of fact to the contrary are made by the parties thereto. Elrod
v. Leny, 193 So.2d 299 (La.App. 4 Cir. 1966). In the case herein there
have been no such admissions of fact. The co-vendee is deceased[,] and
we find no reason to controvert the transaction as reflected by the
authentic act of sale.

Id. at 377. In this succession case —where one spouse contested the ownership of
property bought jo intly during marriage to thwart the interests of children of a
previous marriage , and the other spouse was not alive to testify regarding her
contributions—t he court of appeal declined to disturb the trial court’s finding that
the husband could not rebut the presumption of equal ownership in indivision merely
by showing that his separate funds were used to purchase the property . These
circumstances are clearly distinguishable from the present case, where Petersen and
Johnson are both alive to testify as to the circumstances surrounding the purchase of

O’Krepki, 16-1202 (La. 10/10/16), 207 So.3d 406 ( citing Succession of LeBlanc, 577 So.2d 105,
107 (La.App. 4th Cir.1991), (citing Oxford v. Barrow, 43 La. Ann. 863, 9 So. 479 (1891));
Manning, 59 So.2d 389; Succession of Washington, 140 So.2d 906).

4

the property at issue and heavily dispute that they mutually intended equal ownership
of that property.
Likewise, I find Mitchell v. Clark, 448 So.2d 681 (La. 1984), to be wholly
inapposite to the present case. In Mitchell, the plaintiff was an aunt who had put only
her nephew’s name on the deed of a property that she had purchased wholly with her
funds. She stated that her intent was to ensure that her nephew received it after her
death without the expense and bother of succession proceedings. Id. at 684. Because
only the nephew’s name was on the deed of the property at issue—the authentic act
wherein Mitchell expressly evidenced her intent to give the property to her
nephew—La. C.C. art. 797 and the presumption of equal ownership in indivision
was never at issue. Accordingly, as the aunt did not allege error or fraud in t he
confection of the sale, the court held, “We cannot give relief to the plaintiff without
abrogating the consistent rule of property that excludes parol evidence to prove that
one not named in the deed is the real vendee.” Id. at 687. In contrast, because
Petersen is named in the deeds at issue in this case, parol evidence is allowed to rebut
the presumption of equal ownership in indivision.
Here, the court of appeal based its conclusion that the parties mutually
intended to be equal co-owners on the fact that the parties both signed the deeds with
“an intent at that time… to start a life together, to have a family, and to have a family
home.” Fairbanks Dev., LLC v. Johnson, 53,427, p. 11 (La.App. 2 Cir. 4/22/20), 295
So.3d 1279, 1286, reh’g denied (7/16/20), writ granted, 20-01031 (La. 12/8/20), 305
So.3d 865. However, I disagree that mutual intent to start a life together as romantic
partners is identical with mutual intent to equally co-own a p iece of property in
indivision. Likewise, the fact that Petersen granted Johnson the right to use the
house, or that she asked for Johnson’s consent for sale at some point, do not
necessarily mean that Petersen intended at the time of purchase for the two to be
equal co-owners.

5

As between the parties, a contract of sale is perfected when the thing, the price,
and consent concur. Williams v. Bowie Lumber Co., 214 La. 750, 38 So.2d 729, 755
(La. 1948) ; La. C.C. art. 2439. Thus, t ransfer of ownership of the property was
perfected at the time the deeds were signed, though the parties’ words and actions
after the purchases may provide evidence confirming the intent of the parties at the
time. 4 In line with the relevant jurisprudence, I find that the trial court was entitled
to consider parol evidence relevant to the contributions provided (including any non-
monetary contributions) by Petersen and Johnson at the time the deeds were signed.5
Here, it is undisputed that Johnson did not contribute anything financially to the
purchase of the property. Notably, it is not even clear that Johnson raised an
argument regarding non-monetary contributions before the trial court. When asked
whether Johnson’s case would rely on his non-monetary contributions, Johnson’s
counsel replied that he would be “sticking with” the intent of the parties.
Unsurprisingly, there is no testimony regarding the details of the alleged non-
monetary contributions of work done on the properties in Georgia or Louisiana .
Furthermore, Johnson’s post-trial brief did not offer any evidence of the se alleged
contributions, much less advocate for their relevance . However, on appeal, the
Second Circuit relied heavily on the alleged existence of those contributions, finding
that “Johnson’s situation was no different from many women who did not work
outside the home, but contributed in other ways, while men who possessed the means
financed the communal life .” Fairbanks, 295 So.3d at 1286-87. I find this to be a
strained interpretation of the record, and the trial court did not manifestly err in

4 Notably, this Court has previously found that a purported act of sale between co-purchasers was
a disguised onerous donation and declared the donor to be the sole owner of the property . Garcia
v. Dulcich, 237, La. 359, 111 So.2d 309 (La.1959). However, in this case, neither party has alleged
that this sale was a disguised agreement of another form.

5 “Louisiana does not follow the common law tradition that requires consideration to effect an
enforceable contract.” Aaron & Turner, L.L.C., 22 So.3d at 915; La. C.C. art. 1967, Comment (c).
As discussed below, Petersen could have gratuitously agreed to equal ownership of the house.

6

failing to adopt it, especially considering that Johnson failed to advance this
argument at trial.
Here, the couple began their relationship in 1999 and moved to Louisiana in
2000. According to Johnson, he quit his job and sidel ined his career to travel with
Petersen, assisted in mowing the lawn and keeping the house in Georgia
“presentable,” and did “work” of unspecified quality and quantity on the property at
issue along with Petersen after the couple moved to Louisiana . However, even if
taken as true, these fac ts do not support reversal of the trial court’s finding as
manifestly erroneous or clearly wrong. Johnson’s acts of 1) leaving his job at a
grocery store to travel with Petersen, 2) keeping a house in Georgia presentable for
sale, and 3) doing indeterminate work on the property with Petersen after purchase,
where Petersen fully paid all of the couples’ living expenses and where neither party
alleged that Johnson’s role was to tend to household affairs before or after the
purchase, are not obviously analogous to the years of non-monetary contributions of
caring for households and children made by the spouses in the cases cited by the
court of appeal.
At the time of the purchase of the proper ty, Petersen and Johnson were not
married. There was no community of acquets and gains, nor were there established
marital duties to fulfill. Moreover, to the extent that the parties had come to some
amorphous, informal agreement on what Johnson’s non-monetary contributions
toward the purchase of the property should be, Petersen testified unambiguously that
Johnson failed to make those contributions.
As this Court stated in in Rosell, 549 So.2d at 844:
When findings are based on determinations regarding the credibility of
witnesses, the manifest err or—clearly wrong standard demands great
deference to the trier of fact’s findings; for only the factfinder can be
aware of the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding and belief in what is said.

7

Here, the trial court was in the best position to weigh the respective parties’
credibility, and its decision to discredit Johnson’s testimony regarding his alleged
contributions and to credit Petersen’s testimony as to the lack thereof should not
have been disturbed. Although the court of appeal may have viewed the evidence
differently and considered Johnson’s actions valid non-monetary contributions, it
was not entitled to substitute its appraisal of the facts for the trial court’s finding that
it “was not convinced (by any attempts) that [Johnson] contributed anything toward
the purchase of the subject property.”
Importantly, Louisiana recognizes wholly gratuitous contracts, where one
party has no obligation. La. C.C. art. 1910 ; La. C.C. art. 1967, Comment (c ).
Johnson’s testimony at times reflected a belief that Petersen’s cause for giving him
an interest in the property was gratuitous, as he answered, “I mean I guess so,” when
he was asked by the trial court whether he was expecting “ to get it [for] free.”
However, under Louisiana law, “R eliance on a gratuitous promise made without
required formalities is not reasonable.” La. C.C. art. 1967. Comment (f) to La. C.C.
art. 1967 (emphasis added) elaborates:
In other words, a party should place no reliance on his belief that he has
entered a gratuitous contract when some formality prescribed for the
validity of such a contract has been omitted. Thus, reliance on a
gratuitous donation not made in authentic form is not reasonable.
See C.C. Arts. 1523 and 1536 (1870).

Interest in immovable property must be transferred by authentic act or by act
under private signature. La. C.C. art. 1839. Here, there is no act evidencing
Petersen’s express intent to give Johnson a one-half interest in the property at issue.
6
To find that Petersen effectively gifted Johnson a half interest in the property simply
by listing his name on the deeds at issue would transform the “presumption” of
equal shares between co-owners in indivision into an unbreakable rule, where every

6 Id. at 687. In contrast, Petersen is named in the deeds at issue, and parol evidence is allowed to
rebut the presumption of equal ownership in indivision.

8

deed with co-purchasers listed would automatically constitute irrefutable evidence
in authentic form of a donation of an equal share of ownership to any co-purchaser
who contributed nothing to the purchase, even if the co-purchaser who paid for the
property had relevant evidence to the contrary.
Based on my review of the record herein, I find that the court of appeal erred
in substituting its appraisal of the facts for that of the trial court. The court of appeal
erred in reversing the judgment of the trial court, as there was a reasonable basis in
the record for the trial court’s finding, and the trial court’s finding was not
manifestly erroneous or clearly wrong. Stobart , 617 So.2d at 882. I find that the
record supports the trial court’s ruling that Petersen rebutte d the presumption of
equal ownership in indivision and its allocation of half of the ownership interest in
the property to Fairbanks and the other half interest to Petersen. Therefore, I would
reverse the court of appeal and reinstate the judgment of the trial court.