Fairbanks Development, LLC v. Charles Woodrow Johnson and Jessica Lyn Petersen

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,427-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

FAIRBANKS DEVELOPMENT, LLC Plaintiff-Appellee

versus

CHARLES WOODROW JOHNSON Defendant-Appellant
AND
JESSICA LYN PETERSEN Defendant-Appellee

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2018-0576

Honorable Alvin R. Sharp, Judge

*****

HALLACK LAW FIRM Counsel for Appellant,
By: Dennis W. Hallack Charles Woodrow
William H. Hallack Johnson

KENNETH L. HARPER Counsel for Appellee,
Fairbanks Development,
LLC

BARRY W. DOWD, A.P.L.C. Counsel for Appellee,
By: Barry W. Dowd Jessica Lyn Petersen

*****

Before WILLIAMS, GARRETT, and STEPHENS, JJ.

GARRETT, J.

One of the defendants, Charles Woodrow Johnson, appeals from a

trial court judgment finding that he did not have any ownership interest in

the immovable property involved in this matter and ordering that the

property be partitioned by licitation instead of in kind. For the following

reasons, we reverse in part and affirm in part the trial court judgment. The

matter is remanded for further proceedings.

FACTS

Jessica Petersen and Johnson were in a relationship, but were not

married when, in 2000, they moved to Calhoun, Louisiana, and used funds

from Petersen’s sizable trust account to purchase a large home, with a pond,

on 18.8 acres of land. The house was purchased in December 2000, for

$624,900. Although Petersen paid the entire purchase price in cash, both she

and Johnson were shown in the appearance clause as the purchasers and both

signed the deed and an attachment containing the property description as

purchasers. In July 2001, Petersen used $150,000 from her mother to

purchase approximately 15 additional acres that adjoined the original

property. Petersen and Johnson were still not married, but both were again

shown in the appearance clause as the purchasers and both signed the deed

and an attachment containing the property description as purchasers. Both

deeds reflect that the purchasers’ mailing address was 205 Brown Road in

Calhoun. Petersen was expecting their first child at that time.

Petersen and Johnson then married and had three children. During the

marriage, Petersen used funds from her trust to enhance the property,

including the building of two shop buildings, a long concrete driveway

leading to the house, and an elaborate front gate. Johnson did not work

during the marriage and Petersen paid all the family’s living expenses from

her trust fund. In 2006, the couple divorced. Johnson remarried and had

two more children. In 2017, Petersen moved to Florida. When Petersen left

Louisiana, Johnson and his new family moved into the house.

In February 2018, Petersen sold all of her “right, title and interest,

including but not limited to an undivided ½ interest” in the property to

Fairbanks Development, LLC (“Fairbanks”), for $250,000. The deed was

recorded on February 14, 2018. She also granted to Fairbanks an option to

purchase for $100,000 “any interest she may have in her ex-husband’s

presumptive one-half interest” if she was found to be the sole owner.1

On February 15, 2018, Fairbanks filed the present suit for partition by

licitation against Johnson and Petersen. Fairbanks asserted that it owned an

undivided one-half interest in the property and Johnson and Petersen owned

the other undivided one-half. Fairbanks argued that the property could not

be partitioned in kind, and a partition by licitation was required. The

1
The option was signed on behalf of Fairbanks by Kenneth L. Harper, the
attorney who represented the company in this litigation. The option provided:

. . . .FAIRBANKS DEVELOPMENT, LLC has agreed to finance
litigation against Charles Woodrow Johnson in order to recover that
interest. In exchange for that, Jessica Petersen has agreed to grant
Fairbanks an option to purchase that share of the property at a price that is
less than the current market value.

3. The option or right granted and created hereby is in the nature
of a continuing offer to sell the property made by SELLER to
PURCHASER, which offer shall remain open to PURCHASER for a
period ending 90 days from final judgment in the case against SELLERS
[sic] ex-husband.

4. The consideration for the granting of this option or continuing
offer to sell by SELLER to PURCHASER is the PURCHASER advancing
the court cost and attorney fees of an attorney of PURCHASERS [sic]
choosing, to pursue a case against SELLERs [sic] ex-husband Charles
Woodrow Johnson to attempt recovery of the presumptive one-half
interest of Charles Woodrow Johnson for Jessica Petersen.

2

company sought a public sale of the property. Fairbanks noted that Johnson

lived in the house, and sought to recover rent from him, along with

reimbursement for taxes, insurance, necessary expenses for upkeep, and

attorney fees.

Petersen answered, claiming that Johnson had no ownership claim to

the property. She alleged that she was the sole owner of all of the property

because she bought it with her separate funds before she and Johnson were

married. She filed a cross-claim against Johnson to be declared the sole

owner of the property, or, in the alternative, to be reimbursed for her

separate funds used to purchase and enhance the property. She also sought

to recover rent from Johnson, who was living in the house. Johnson

contended that he was the owner of an undivided one-half interest in the

property and denied all claims made against him by both Fairbanks and

Petersen.

The matter was tried on April 15-16, 2019. On July 17, 2019, the trial

court issued written reasons for judgment. Essentially, the trial court found

that Petersen was the sole owner of the property. According to the trial

court, the property was purchased before the marriage with Petersen’s

separate funds and Johnson did not contribute anything to the purchase

price. The court stated that Petersen properly sold a one-half interest in the

property to Fairbanks and that Petersen owned the other half. The court

found that, based upon the testimony of the expert appraisers, the property in

question must be partitioned by licitation and not in kind. A judgment to

that effect was signed by the trial court on July 25, 2019.

Johnson appealed, claiming that the trial court erred in failing to

recognize that, because both parties were listed as purchasers on the deeds,
3

the presumption of equal co-ownership applied here. He maintains that the

presumption was not rebutted. He also asserts that the trial court erred in

finding that the property must be partitioned by licitation and not in kind.

OWNERSHIP ISSUES

According to Johnson, both parties signed the deeds as purchasers

and, under La. C.C. art. 797, it is presumed that they are equal co-owners in

indivision. He also argues that the presumption of equal co-ownership was

not rebutted at the trial on the merits. These arguments have merit.

Legal Principles

Because the parties were not married at the time the property at issue

here was purchased, the division of the property is governed by the

Louisiana Civil Code provisions governing ownership in indivision. See

Sampognaro v. Sampognaro, 41,664 (La. App. 2 Cir. 2/14/07), 952 So. 2d

775, decision clarified on reh’g, 41,664 (La App. 2 Cir. 4/11/07), writ

denied, 2007-937 (La. 6/22/07), 959 So. 2d 500; Olson v. Olson (Olson II),

50,629 (La. App. 2 Cir. 5/18/16), 196 So. 3d 19. 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. See La. C.C. art. 797.

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. C.C. art. 1835. An authentic act is clothed with a presumption of

genuineness. Bank of New York Mellon v. Smith, 2015-0530 (La. 10/14/15),

180 So. 3d 1238. When such an act is silent as to the proportions of the

respective interests of the co-vendees listed, prior cases have allowed the

introduction of parol evidence for the limited purpose of determining those
4

respective interests. In re Succession of O’Krepki, 16-50 (La. App. 5 Cir.

5/26/16), 193 So. 3d 574, writ denied, 2016-1202 (La. 10/10/16), 207 So. 3d

406; Succession of LeBlanc, 577 So. 2d 105 (La. App. 4 Cir. 1991). Other

evidence that the parties did not intend to be co-owners or that they did not

intend for their shares to be equal could include a counter letter or

declaration, placed in the conveyance records, stating the intent of the co-

owners. See Deklerk v. Deklerk, 2014-0104 (La. App. 4 Cir. 7/29/15), 174

So. 3d 205.

The presumption of equal ownership is rebuttable to the extent that

the court will decree ownership in proportion to the amount and

consideration contributed by each of the vendees. In re Succession of

O’Krepki, supra; Succession of LeBlanc, supra. There is reasoning in the

jurisprudence that the “consideration” used in Succession of LeBlanc, supra,

actually means “cause” under La. C.C. art. 1967, where the term is defined

as the reason why a party obligates himself. See Slimp v. Sartisky, 2011-

1677 (La. App. 4 Cir. 9/17/12), 100 So. 3d 901, amended on reh’g in part,

2011-1677 (La. App. 4 Cir. 10/11/12), writ denied, 2012-2430 (La. 1/11/13),

107 So. 3d 616; Aaron & Turner, L.L.C. v. Perret, 2007-1701 (La. App. 1

Cir. 5/4/09), 22 So. 3d 910, writ denied, 2009-1148 (La. 10/16/09), 19 So.

3d 476.

Contracts have the effect of law for the parties. La. C.C. art. 1983. In

interpreting contracts, we are guided by the general rules contained in La.

C.C. arts. 2045-2057. Subject to the limits imposed by law, parties are free

to contract as they choose. Slimp v. Sartisky, supra. The cardinal rule, as set

forth in La. C.C. art. 2045, is that interpretation of a contract is the

determination of the common intent of the parties. When they are clear and
5

explicit, no further interpretation may be made in search of the parties’

intent. See La. C.C. art. 2046.

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong, and, where there is

conflict in the testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review, even

though the appellate court may feel that its own evaluations and inferences

are as reasonable. Rosell v. ESCO, 549 So. 2d 840 (La. 1989); Slimp v.

Sartisky, supra.

Discussion

The resolution of the ownership issues raised on appeal by Johnson

requires a review of the evidence adduced at trial concerning the intent of

the parties when they signed the deeds for the purchase of the property at

issue here. Instead of considering and analyzing the parties’ intentions at the

time of the acquisitions, the trial court improperly focused on the subsequent

failure of the parties’ relationship and marriage, which occurred years later.

Johnson testified that he and Petersen previously lived in Georgia

before they were married and that they purchased a house there also, using

Petersen’s funds and signing the deed as purchasers. That house was sold

after they moved to Louisiana. Johnson stated that he had worked in

Georgia as a mechanic, and later he worked at a grocery store. However,

because Petersen liked to take long trips, she requested that he quit his job.

He did so and did not work during their marriage. The couple lived off

Petersen’s money and, until late in the marriage, Petersen was not

particularly insistent that he get a job.

6

Johnson acknowledged that the property at issue here was all

purchased prior to his marriage to Petersen and that he did not furnish any

funds for the purchase of either tract. According to Johnson, when he put

his name on the deeds, it was his intention to be an owner. The court asked

Johnson if he was expecting to get partial ownership of the property for free.

Johnson responded, “I mean I guess so.” He said he thought he and Petersen

were building a life together and that they were sharing, even though he did

not contribute to the purchase price. He said he assumed it was “our”

property. He said that was the way Petersen “wanted it.” Johnson stated

that Petersen wanted “something bigger and fancy and that’s kind of the way

we went with it.” Johnson said that he and Petersen went together to view

several properties when they were shopping for their home. The court asked

if Petersen essentially said, “[L]ook here, baby, don’t you worry about it[.] I

got it. This is how we are going to do things.” Johnson said. “Yes.”

Johnson said that they shared almost everything at that time, even though

they were not yet married.

The court questioned whether Johnson ever offered to provide any

money for the purchases. He said that he did not. The court asked if

Petersen ever said, “I need you to hurry up and get some cheese and pay me

back on that property.” Johnson said she did not. He and Petersen went to

the closing together and Petersen never asked him for any money.

Johnson said that their first child was born shortly after they moved

into the house on the property. When asked what he did instead of working,

Johnson said that they worked on the house and got organized. Because

they were trying to sell the house in Georgia, he frequently went there to

look after that property. Johnson also said that he worked on the property at
7

issue here. According to Johnson, Petersen only began to suggest that he get

a job around the time they divorced, which was approximately six years after

the property was purchased.

Petersen testified that she originally purchased the house and land,

which had a pond, using her trust fund money and then purchased an

adjacent tract using money from her mother, which she later repaid. She

was not married to Johnson at the time of the purchases. She filed

settlement statements into evidence, establishing the amount of the funds she

took out of her trust fund for the purchase of the property, improvements,

and living expenses during the marriage. This amount was approximately

$1.5 million. She also filed into evidence the check for $150,000 from her

mother that was payable to Petersen alone. She stated that Johnson never

paid for any of the property or the improvements and that she paid the

property taxes. In the divorce, she was granted the use of the house and she

lived there for a period of time. She eventually moved to Florida and

Johnson moved into the house. He had not paid any rent during the time he

lived there.

In response to questioning about the intent when the deeds were

signed, Petersen said that the couple’s intent was to have a home in which to

raise their children. She said that she was led to believe that Johnson was

going to “contribute and supply and be a part of the family.” Petersen

testified that the couple had agreed to start a life together and Johnson told

her he was going to work after they were married and got settled in a new

home. However, he did not fulfill his agreement.

Petersen said that she had been trying to sell the property for 13 years

since the divorce. According to her, they had one offer to buy all the
8

property for $500,000, but Johnson would not agree to the sale. She later

sold her presumptive undivided one-half interest to Fairbanks for $250,000,

with an option for the company to buy the other one-half for $100,000, if she

was found to be the owner. She paid the taxes on the property and, in 2017,

got a mortgage on the property to pay the tax bill of $6,000.

The trial court questioned Petersen about her intent when the couple

signed the deeds for the two pieces of property. She said, “So, when we’re

at the point of signing the papers and I’m being directed and led by him to

believe that things are going to be one way we get the papers signed and

after that it’s not like that.” The trial court then asked Petersen:

[W]hy in the world would a sister that’s got this kind of cheese
why would she give it up to a brother that ain’t working? That
ain’t got a job. I mean, you know, ain’t bringing nothing to the
table. What’s that about?”

Petersen responded:

I ask myself that question every single day. The only thing I
can tell you is young and dumb and made mistakes. That was
my first love. We met when I was fifteen years old, and he
knows what he did.

The court asked Petersen whether it was her intent to be the owner of

the property and whether Petersen’s mind “was on the same page” as

Johnson’s. Petersen said it was not. She was then asked by the court, “What

was your mind?” Petersen said that they were going in as “partners” and

Johnson led her to believe that he was going to fulfill his portion of the

partnership. She said that Johnson “never contributed anything back to the

relationship, to the marriage, emotionally, financially, anything.”

Johnson testified again that it was his intent to be a co-owner of the

property, even though he did not contribute to the purchase price and had not

paid any of the property taxes.
9

Because Petersen and Johnson signed the deeds as co-owners, a

rebuttable presumption arose that they were equal co-owners in indivision.

The relevant inquiry on the issue of ownership is whether Petersen and

Johnson intended to be co-owners of the two pieces of property when the

deeds were signed. Both parties clearly stated that their intent at that time in

buying the property was to start a life together, to have a family, and to have

a family home. Petersen herself stated that, when the parties signed the

deeds, they intended to be partners. If, at the time the purchases were made,

Petersen intended to be the sole owner of the property, she could have made

the purchases solely in her name. If the parties intended different

percentages of co-ownership, they could have specified a percentage of

ownership interest in the deeds, or they could have executed a counter letter

or declaration and placed it in the conveyance records, stating their intent

other than to be equal co-owners. None of these measures was taken.

Matters that arose later in the dissolution of the marriage had no effect on

the intent of the parties at the time the deeds were signed.

This testimony shows that the intent, at the time the deeds were

signed, was to be equal co-owners of the property which was purchased to

provide a home for Petersen and Johnson’s growing family. When the

marriage failed, Petersen could not then change her mind as to that intent in

contravention of the clear wording of the deeds listing the parties as co-

owners and the stated intent of the parties to be partners at the time the deeds

were signed.

Other facts in this case not considered by the trial court also indicate

that the parties considered themselves to be co-owners of the property. In

the course of their divorce proceedings, Petersen was granted the right to use
10

the house, indicating that the parties contemplated that Johnson had an

ownership interest in the property. After the divorce, when the parties

received an offer to purchase the property for $500,000, Petersen sought

Johnson’s consent, indicating that she thought he had an ownership interest

in the property.

At the hearing in this matter, Petersen argued that Johnson was not an

equal co-owner because he did not make any monetary contributions to the

purchases. She essentially contended that Johnson’s failure to contribute

any funding to the purchase, improvement, or upkeep of the property

rebutted the presumption that they were equal co-owners in indivision.

However, nonmonetary contributions are considered in determining the

division of ownership. See Deklerk v. Deklerk, supra.

Although Petersen contends that Johnson made no contribution to the

relationship or marriage, the record shows that he did make nonmonetary

contributions. He helped with the upkeep and sale of the couple’s previous

home in Georgia and he worked on the property at issue here after its

purchase. He also gave up his job in order to travel with Petersen at her

beck and call. Petersen did not dispute that Johnson gave up his job in order

to travel with her. 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.2 As will be

discussed below, in such situations, both parties are frequently found to be

equal co-owners in indivision of the family home.

2
Each spouse contributes to the expenses of the marriage as provided in the
matrimonial agreement. In the absence of such a provision, each spouse contributes in
proportion to his means. La. C.C. art. 2373.
11

In deciding that Petersen was the sole owner of the property, the trial

court did not examine or apply the law to the facts presented, but rather

exhibited an emotional response to the fact that Johnson made no monetary

contributions to the purchase of the property. The result reached by the trial

court is contrary to the jurisprudence.

The following cases illustrate the trial court’s error in finding Petersen

to be the sole owner of the property here. In Olson v. Olson (Olson I),

48,968 (La. App. 2 Cir. 4/23/14), 139 So. 3d 539, writ granted, 2014-1063

(La. 10/3/14), 149 So. 3d 275, and writ denied as improvidently granted,

2014-1063 (La. 1/28/15), 159 So. 3d 448, a married couple with a separate

property agreement used the wife’s separate funds to purchase two

condominium units, with no contribution from the husband. This court

reversed a trial court judgment which allocated to the wife the sole

ownership of the two units. We held that each party owned, as separate

property, a one-half interest in each of the two condominium units.

In Tassin v. Tassin, 2014-488 (La. App. 3 Cir. 12/3/14), 161 So. 3d

818, a married couple with a separate property regime purchased a house in

both their names. The couple were eventually divorced. The court found

that each party owned a one-half interest in the house.

In Slimp v. Sartisky, supra, an unmarried couple purchased a house

together. The man put in more money than the woman. The court found

that the couple, even though unmarried, purchased the home to live together

as a family unit. When the relationship failed, and the house was

partitioned, the court found that each party was a one-half owner of the

house.

12

In Deklerk v. Deklerk, supra, a husband and wife, with a separate

property regime, purchased a home, had a family, and lived solely on the

husband’s earnings during their 29-year marriage. The wife did not work,

but made nonmonetary contributions to the family life. The court found,

that, at the time of the purchase, the parties intended to be equal co-owners

of the house.

In Succession of LeBlanc, supra, a couple purchased a house together

before they were married. The couple married later. In the man’s

succession, the court found that the parties each acquired a one-half interest

in the house.

In Morrison v. Richards, 343 So. 2d 375 (La. App. 4 Cir. 1977), a

husband and wife, with a separate property regime, purchased a house. Both

parties were listed on the deed as buyers. After the wife died, the husband

claimed he purchased the house with his separate funds and the wife had no

ownership interest in the property. Therefore, he claimed that her two sons

from a prior marriage were not entitled to her interest in the house. The

court found that, under the clear wording of the deed, listing both parties as

purchasers, the deceased wife was a one-half owner of the house, and her

interest passed to her sons.

In In re Succession of O’Krepki, supra, a married couple with a

separate property regime purchased a house and both were listed as owners

on the deed. After the husband’s death, his son from a prior marriage sought

a declaratory judgment that the house was entirely owned by his father. The

wife filed a motion for summary judgment claiming, among other things,

that she was owner of a one-half interest in the house. The trial court

granted the motion for summary judgment. On appeal, the fifth circuit
13

reversed the grant of summary judgment. The court noted the rebuttable

presumption that co-owners own an equal share of the property owned in

indivision and found that there were genuine issues of material fact as to

whether the wife made nonmonetary contributions consistent with her

respective contribution to the marriage and whether the parties mutually

intended at the time of the purchase that the wife was an equal co-owner of

the property. The matter was remanded for further proceedings.

Based upon this record, we find that the trial court erred in finding

that Petersen was the sole owner of the property. The record shows that the

parties were equal co-owners of the property in indivision. That portion of

the trial court judgment finding that Petersen was the sole owner and that

Johnson did not own an undivided one-half interest is reversed.

PARTITION IN KIND OR BY LICITATION

Johnson argues that the trial court erred in finding that the property

was not subject to partition in kind and that the property must be partitioned

by licitation. This argument is without merit.

Legal Principles

As stated above, ownership of the same thing by two or more persons

is ownership in indivision. See La. C.C. art. 797. No one may be compelled

to hold a thing in indivision with another. Any co-owner has a right to

demand partition of a thing held in indivision. La. C.C. art. 807. The court

shall decree partition in kind when the thing held in indivision is susceptible

to division into as many lots of nearly equal value as there are shares and the

aggregate value of all lots is not significantly lower than the value of the

property in indivision. La. C.C. art. 810.

14

When the thing held in indivision is not susceptible to partition in

kind, the court shall decree a partition by licitation or by private sale and the

proceeds shall be distributed to the co-owners in proportion to their shares.

La. C.C. art. 811.3 Property cannot be conveniently divided when a

diminution of its value, or loss or inconvenience to one of its owners, would

be the consequence of such division. Olson I, supra; Mitchell v. Cooper,

48,125 (La. App. 2 Cir. 7/24/13), 121 So. 3d 736.

Division in kind is inconvenient when landowners would acquire

remote areas inaccessible except by crossing another’s property. Such a

situation results in economic loss, inconvenience, and legal difficulties. See

Ark-La-Miss Timber Co., Inc. v. Wilkins, 36,485 (La. App. 2 Cir. 12/11/02),

833 So. 2d 1154.

Whether and how property is partitioned is fact-specific, considering

such factors as the natural characteristics of the land, size of a tract, presence

or absence of public road access, number of owners in indivision, and

existence of any contamination. The burden of proof is on the party seeking

partition by licitation to prove that the property cannot be partitioned in kind.

See Cahill v. Kerins, 34,522 (La. App. 2 Cir. 4/4/01), 784 So. 2d 685;

Lazarus Trading Co., LLC v. Unopened Succession of Washington, 50,810

(La. App. 2 Cir. 8/17/16), 201 So. 3d 989; Mitchell v. Cooper, supra. The

decision of whether land should be divided in kind or by licitation is a

3
La. C.C.P. art. 4606 states that, except as otherwise provided by law, or unless
the property is indivisible by nature or cannot conveniently be divided, the court shall
order the partition to be made in kind. When a partition is to be made by licitation, the
sale shall be conducted at public auction and after the advertisements required for judicial
sales under execution. All counsel of record, including curators appointed to represent
absentee defendants, and persons appearing in proper person shall be given notice of the
sale date. At any time prior to the sale, the parties may agree upon a nonjudicial
partition. La. C.C.P. art. 4607.
15

question of fact to be decided by the trial court. Mitchell v. Cooper, supra;

Entrada Co. v. Unopened Succession, 38,800 (La. App. 2 Cir. 9/22/04), 882

So. 2d 661; Marsh Cattle Farms v. Vining, 30,156 (La. App. 2 Cir. 1/23/98),

707 So. 2d 111, writ denied, 98-0478 (La. 4/24/98), 717 So. 2d 1167. A trial

court’s factual findings will not be upset unless they are manifestly

erroneous or clearly wrong. Lazarus Trading Co., LLC v. Unopened

Succession of Washington, supra.

Where there is conflict in the testimony, reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon

review, even though the appellate court may feel that its own evaluations

and inferences are as reasonable. Under the manifest error standard, the

linchpin is whether the trial court’s findings are reasonable; in other words,

if there is a reasonable factual basis for the trial court’s finding, even if the

appellate court feels its own evaluation of the evidence is more reasonable,

the trial court’s findings cannot be reversed. Cahill v. Kerins, supra.

Discussion

The trial court did not err in finding that this property required

partition by licitation and not in kind. The record shows that Fairbanks

carried its burden of proving that a division in kind would result in a

diminution of its value, or loss or inconvenience to one of its owners.

Kensill Brewer, an expert in residential real estate appraisals, testified

regarding the value of the property and the feasibility of a partition in kind.

He stated that the house, located in a rural area, is 21 years old and is 4,395

square feet. He was not asked to appraise all the land and the house

together. According to Brewer, smaller tracts of land are worth more per

acre.
16

He was originally asked to appraise the house and two acres of land

separately, and the remaining land as a separate tract. Separating the

property to place the house on a two-acre tract of land would cut off access

from the public road and would eliminate the use of the concrete driveway.

The owner of the house would be required to secure a right of ingress and

egress from the owner of the remainder of the property. This would also

limit or eliminate access to the pond located close to the house. Brewer

testified that the property would be devalued by the lack of frontage on the

public road and the water. This would create a real marketability problem

for the house.

He then came up with a way to place the house on 4.75 acres of land,

giving the house frontage on the road and water.4 Brewer did not confirm on

the ground that his proposed division would include the driveway. There

was some confusion as to whether he was looking at the driveway or the

power line right of way. His written appraisal of the house and 5.75 acres of

land valued the property at $315,000.

The remainder of the land, totaling approximately 28 acres, was

appraised at $238,425. The 28-acre tract contained rolling hills with mixed

pine and hardwood stands of varying ages of maturity. It also contained the

remainder of the pond close to the house, a second pond, a metal fence with

brick columns, and a shop suitable for working on cars.

4
The record is inconsistent as to whether this tract was 5.75 acres or 4.75 acres.
The written appraisal, prepared by Brewer and submitted into evidence, specifies that the
house was appraised with 5.75 acres of land. There is one map of the proposed division
specifying that the house was placed on 5.75 acres. Another notation states the land
included with the house was 4.75 acres. Brewer’s testimony at one point mentions 5.75
acres and at other times he uses 4.75 acres.
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Brewer was asked whether the property could be divided into two

tracts of equal value. He was not sure that could be done. He said that

dividing the property in two tracts of equal value would substantially reduce

the value of the property as a whole. According to Brewer, “it would have

to be twisted up so much” that the value and marketability of both tracts

would be substantially reduced. He essentially stated that he did not think

the property could be configured in such a way as to make two useable tracts

of equal value. The difference in the appraisals of the two tracts was

$77,000. Brewer noted the disparity in the value of the two pieces of

property and said that he did not know how to reduce the difference, stating,

“I don’t know how you get those numbers that close together by moving

land around.”

Robert McBroom, an expert in residential real estate appraisal, also

testified that he was not asked to appraise the property as a whole.

McBroom agreed with Brewer that the property appraised as a whole would

be worth less. He stated that, the way he measured the house, it only had

4,053 square feet. He noted that the driveway was 585 long and 12 feet

wide. He appraised the house and two acres of land at $310,000, and the

other tract, containing 30.86 acres, at $295,000. McBroom said that he did

not include any value for the shop located on the 30.86-acre tract.

Rockland Burks, the manager of Fairbanks, testified that his company

deals in real estate and timber. Burks stated that he thought McBroom’s

division of the property containing the house did not include the driveway.

He thought that the driveway was several hundred feet north of the line used

by McBroom. He thought that McBroom had used the power line right of

way, located on the southern boundary of the property, for the driveway.
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Johnson testified that the property had a 12-foot wide concrete

driveway, a shop, and an entrance that were all built after the property was

purchased. These improvements cost approximately $300,000. According

to Johnson, the driveway was not on the southern boundary of the property,

as indicated in one of the appraisals. The southern boundary was the power

line right of way. He also said that not all of the driveway was included on

the 4.75-acre tract drawn by Mr. Brewer. Johnson stated that he thought the

driveway could be relocated to follow the power lines in order to facilitate

division of the property. However, he did not know what would have to be

done regarding the power line rights of way and easements.

The record fails to show that the property can be divided into two

pieces of equal value without resulting in a diminution of value or a loss or

inconvenience to one of the owners. Brewer’s testimony demonstrated that,

even if the property could be divided to place the house on four or five acres,

there would still be questions about whether the driveway to the house and

useable access to the pond close to the house would be included.

McBroom’s division of the property, placing the house on two acres, also

exhibited significant difficulties in access to the driveway, the main road,

and the pond. Brewer’s appraisals of the two pieces of land differed by

$77,000. McBroom’s appraisals differed by $15,000. Even though Johnson

stated that he thought the driveway could be relocated along the right of way

for the power lines, his testimony was speculative. He admitted that he did

not know if there might be problems with locating the driveway on a power

line easement.

The record simply fails to how that this property can be divided into

two useable pieces of equal value. Under the facts presented here, the trial
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court did not err in ordering a partition by licitation. That portion of the trial

court judgment is affirmed.5

CONCLUSION

For the reasons stated above, we reverse that portion of the trial court

judgment finding that Petersen was the sole owner of the property at issue in

this matter. Petersen and Johnson were equal co-owners in indivision.

Therefore, we find that Johnson is owner of an undivided one-half interest in

the property.

We affirm that portion of the trial court judgment finding that the

property is not subject to partition in kind and ordering that it be partitioned

by licitation. We remand the matter to the trial court for a partition by

licitation between Fairbanks and Johnson. Costs in this court are assessed

one-half to Petersen, and one-half to Johnson.

REVERSED IN PART; AFFIRMED IN PART; REMANDED
FOR FURTHER PROCEEDINGS.

5
In her cross-claim against Johnson, Petersen sought reimbursement for her
separate funds used to purchase and enhance the property if she was found not to be the
sole owner. She also sought to recover rent from Johnson, who was living in the house.
Very little evidence is contained in the record regarding these claims. Because the trial
court found that Petersen was the sole owner of the property, it did not consider her
reimbursement claims. We note that, if the property was being partitioned between
Petersen and Johnson, she might possibly have some claims for reimbursement. See, for
example, La. C.C. arts. 798-806 and La. C.C. art. 2803. However, because Petersen
transferred her interest in the property to Fairbanks, it is unclear whether any rights she
had to reimbursement remained hers, passed to Fairbanks, or were extinguished. In the
petition for partition by licitation, Fairbanks sought to recover rent from Johnson, along
with reimbursement for taxes, insurance, necessary expenses for upkeep, and attorney
fees. No evidence was adduced on these claims. The trial court did not address any
claims for reimbursement raised by Fairbanks. These matters were not raised on appeal
and are issues for another day.
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