Roy Lee Peterson v. Elaine Kirkendoll Peterson

Judgment rendered August 9, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,228-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

ROY LEE PETERSON Plaintiff-Appellee

versus

ELAINE KIRKENDOLL Defendant-Appellant
PETERSON

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 631,838

Honorable Brady D. O’Callaghan, Judge

*****

SMITH & NWOKORIE Counsel for Appellant
By: Brian G. Smith

AYRES, SHELTON, WILLIAMS, Counsel for Appellee
BENSON & PAINE, LLC
By: Curtis Ray Shelton

*****

Before STONE, STEPHENS, and ROBINSON, JJ.

STEPHENS, J., concurs in the result.

ROBINSON, J., concurs with written reasons.

STONE, J.

This civil appeal arises from the First Judicial District Court, the

Honorable Brady O’Callaghan, presiding. The appellant, Elaine Kirkendoll

Peterson, (“Elaine”), appeals the motion for summary judgment granted in

favor of appellee, Roy Lee Peterson (“Roy”) awarding him $148,584.53 as

reimbursement for mortgage payments. For the following reasons, we

reverse and remand.

FACTS AND PROCEDURAL HISTORY

On October 24, 2008, Roy and Elaine Peterson,1 as unmarried co-

owners, purchased a property located in Caddo Parish, Louisiana. The

purchase price of the property was $279,000.00. The parties made a down

payment of $3,634.00,2 and executed a note and mortgage with National

City Bank (which was later acquired by PNC Bank) to finance the remaining

balance of $275,366. The total monthly installment of $2,149. 69, was

itemized as follows: (1) $1,606.97 towards principal and interest, and (2)

$542.72 towards escrow for insurance and property tax. The monthly

installments were payable on the first day of each month beginning

December 1, 2008 until November 1, 2038 (the maturity date).

On July 29, 2021, Roy filed a petition against Elaine seeking

reimbursement for mortgage payments he made on the co-owned property.

He claimed that he made all the monthly payments from February 2010 to

the date the petition was filed (July 2021) using his separate funds. On

August 12, 2021, Elaine filed a pro se answer. She admitted that they co-

1
The parties were previously married and their former community was terminated
before they bought the property at issue.
2
It is unknown as to which party placed the larger down payment or if it was a
joint effort.

owned the property and were not married at the time of the purchase. Elaine

alleged fraud and further alleged that Roy denied her access to the home

when he forced her out of the home in August 2011. She urged that Roy has

had exclusive use of the home since he unlawfully evicted her.

On January 12, 2022, Roy filed a motion for summary judgment

urging that there were no genuine issues of material fact in dispute because

Elaine had not pleaded a viable affirmative defense nor filed a

reconventional demand,3 and that he should be subrogated to the rights of

PNC Bank under the mortgage. Attached to the motion for summary

judgment were the cash sale deed, detailed records of Roy’s payments from

his Willis Knighton Credit Union account, and an affidavit regarding the

aforementioned facts. The Willis Knighton Credit Union account reflected

that Roy made the payments to PNC Bank from January 2013 through

December 2021 totaling $238,775.43, and that he would make the January

2022 payment. He asserted that he is the only one that has paid the note and

mortgage from February 2010 to present despite not having any

documentation or record of his payments for the period of February 2010

through December 2012.

Roy asserted that he made the monthly $1,606.97 payments over 35

months, which totaled $56,243.95 and paid the property taxes of $4,026.57

over the 35 months, totaling $12,079.71. However, because Roy did not

have evidence for the money he paid towards the insurance during 2010

through 2012, he was not seeking reimbursement nor subrogation. The total

3
There are several motions to continue filed on behalf of Elaine as well as a
change in counsel. However, neither attorneys filed an amended answer, supplemental
answer, or reconventional demand.
2

that Roy has paid in principal, interest, property taxes, and insurance is

$309,248.78. He urged that through subrogation, he was entitled to recover

from Elaine one half of the amounts paid and future payments because

Elaine and he were obligated to PNC Bank.

On April 25, 2022, Elaine filed an opposition to the motion for

summary judgment and her own affidavit.4 She admitted: (1) the date the

parties purchased the property; (2) the cost of the property, (3) the amount of

the down payment; and (4) that they both executed a note and mortgage to

finance the remaining balance. Elaine asserted that they remarried in

December 2008 and divorced on May 10, 2012. However, before the

divorce Elaine contended that she made the monthly payments out of her

separate funds from October 2008 until February 2010. Also, Elaine argued

that she was entitled to reimbursement because of the loss of enjoyment of

the home when Roy forced her out in August 2011. She urged that there

needs to be a partition.

On May 9, 2022, the trial court held a hearing on the motion for

summary judgment. The trial court granted Roy’s motion for summary

judgment ordering Elaine to reimburse him $148,584.53 and allowed him to

be subrogated to the rights of PNC Bank. Roy withdrew the claim for the

$12,079.71 reimbursement from the calculation regarding the taxes and

insurance. Elaine now appeals.

DISCUSSION

Elaine argues that Roy’s only available remedy is an action for

partition because they are co-owners of the property. She further asserts

4
There was an issue of whether it was timely but the court allowed it.
3

only then Roy can be subrogated to the obligee’s rights (PNC Bank) and that

summary judgment is the wrong procedural mechanism. Elaine contends

that the note that both parties signed does not create liability in solido. She

also argues there is a genuine issue of material fact because Roy had the

exclusive use of the house since 201l, and she is entitled to an offset which

can only be determined by partition.

Roy points out that it is undisputed that the parties purchased the

property as co-owners and both parties signed and executed a note and

mortgage to finance the $275,366 balance. He argues that Elaine and he are

obligated in solido. Roy contends that he made all the payments on the note

and mortgage from February 2010 to 2022 although both parties were

obligated individually to pay the full balance of the note and all amounts

owed under the mortgage which totaled

$297,169.07 by January 2022. He asserts that he can be subrogated in the

place of the bank against Elaine for the amounts that he paid. Roy urges

that Elaine’s virile portion of the note and mortgage debt is one-half of the

amounts paid by him.

The appellate court shall render any judgment which is just, legal, and

proper upon the record on appeal. La. C.C.P. art. 2164. Appellate courts

review motions for summary judgment de novo, using the same criteria that

govern the district court’s consideration of whether summary judgment is

appropriate. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So.

3d 791; Bess v. Graphic Packaging Int’l, Inc., 54,111 (La. App. 2 Cir.

11/17/21), 331 So. 3d 490. We view the record and all reasonable

inferences to be drawn from it in the light most favorable to the nonmoving

party. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764; Coleman v.
4

Lowery Carnival Co., 53,467 (La. App. 2 Cir. 4/22/20), 295 So. 3d 427, writ

denied, 20-00594 (La. 9/23/20), 301 So. 3d 1179. A motion for summary

judgment is a procedural device used when there is no genuine issue of

material fact for all or part of the relief prayed for by a litigant. Schultz v.

Guoth, 10-0343 (La. 1/19/11), 57 So. 3d 1002. The procedure is favored

and shall be construed to secure the just, speedy, and inexpensive

determination of actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment shall be granted if the motion,

memorandum, and supporting documents show that there is no genuine issue

as to material fact and that the mover is entitled to judgment as a matter of

law. La. C.C.P. art. 966(A)(3). A fact is material if it potentially ensures or

precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. A genuine issue of material fact is one as to

which reasonable persons could disagree; if reasonable persons could reach

only one conclusion, there is no need for trial on that issue and summary

judgment is appropriate. Maggio v. Parker, 17-1112 (La. 6/27/18), 250 So.

3d 874; Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d

876, cert. denied, 574 U.S. 869, 135 S. Ct. 197, 190 L.Ed. 2d 130 (2014);

Bess, supra. In determining whether an issue is genuine, a court should not

consider the merits, make credibility determinations, evaluate testimony, or

weigh evidence. Bess, supra; Chanler v. Jamestown Ins. Co., 51,320 (La.

App. 2 Cir. 5/17/17), 223 So. 3d 614, writ denied, 17-01251 (La. 10/27/17),

228 So. 3d 1230.

La. C.C.P. art. 966(D)(1) allocates the burden of proof on a motion for

summary judgment as follows:

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The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that
is before the court on the motion for summary judgment, the
mover’s burden on the motion does not require him to negate
all essential elements of the adverse party’s claim, action, or
defense, but rather to point out to the court the absence of
factual support for one or more elements essential to the
adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish
the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.

The only documents that may be filed in support of or in opposition to

the motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and

admissions. La. C.C.P. art. 966(A)(4). Furthermore, the court may consider

only those documents filed in support of or in opposition to the motion for

summary judgment and shall consider any documents to which no objection

is made. La. C.C.P. art. 966(D)(2).

We begin with the parties’ respective ownership interests in the house.

Because the parties were not married when they signed the promissory note

and mortgage, the division of the property is governed by Louisiana Civil

Code provisions governing ownership in division. La. C.C. art. 797

provides ownership of the same thing by two or more persons is ownership

in division. In the absence of other provisions of law or juridical act, the

shares of all co-owners are presumed to be equal. Id. No one may be

compelled to hold a thing in indivision with another unless the contrary has

been provided by law or juridical act. La. C.C. art. 807. Any co-owner has

a right to demand partition of a thing held in indivision. Id. Partition of

property may be made either nonjudicially or judicially. La. C.C.P. art.

4601. Partition may be excluded by agreement up to fifteen years, or for

such other period as provided in La. R.S 9:1702 or other specific law. Id.
6

The mode of partition may be determined by agreement of all the co-owners,

in the absence of which a co-owner may demand judicial partition. La. C.C.

art. 809.

The law is settled under La. C.C. art. 806, a co-owner who on account

of the thing held in division has incurred necessary expenses or maintenance

and management expenses is entitled to reimbursement from the other co-

owners in proportion to their shares. If the co-owner who incurred the

expenses had the enjoyment of the thing held in division, his reimbursement

shall be reduced in proportion to the value of the enjoyment. Id. However,

a mortgage is not such an expense; it is a nonpossessory right created over

property to secure the performance of an obligation. La. C.C. art. 3278. A

review of case law reveals when dealing with co-ownership every case

begins with the filing of a partition. The following cases illustrate the trial

court’s error in awarding Roy reimbursement for mortgage payments

without a partition.

In Fairbanks Dev., LLC v. Johnson, 53,427 (La. App. 2 Cir. 4/22/20),

295 So. 3d 1279, writ granted,20-01031 (La. 12/8/20), 305 So. 3d 865, and

aff’d, 20-01031 (La. 9/30/21), 330 So. 3d 183, a couple purchased a home

with the girlfriend’s separate funds, with no contribution from the boyfriend.

Both parties signed the deed and eventually married. The wife sold all of

her right, title, and interest including but not limited to an undivided one-half

interest in the property to Fairbanks Development. Fairbanks filed a suit for

partition by licitation against the co-owners. The trial court ordered that the

property should be partitioned by licitation. This court, and the Louisiana

Supreme Court affirmed the trial court’s ruling that the property required

partition by licitation and not in kind.
7

In Olson v. Olson, 48,968 (La. App. 2 Cir. 4/23/14), 139 So. 3d 539,

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, 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. In

2011, the wife filed a petition for divorce and for partition of co-owned

property. The trial court held a hearing on the partition and ordered partition

in kind of the co-owned condominium units. We reversed and remanded to

have the trial court order a partition by licitation of the co-owned

condominium units.

In 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, 07-937 (La. 6/22/07), 959 So. 2d 500, a married couple established a

separate property regime rather than community. The husband donated to

the wife an undivided one-half ownership interest in a tract of land on which

the martial home was built. The couple was eventually divorced, and the

husband filed a partition seeking reimbursement for funds he spent on the

co-owned land. The trial court held a hearing on the partition issue, and

partitioned the co-owned property. It allocated 100% ownership of the tract

to the ex-husband, subject to the outstanding mortgage debt, and finding that

the value of the wife’s one- half interest in the property was subject to

reimbursement in a certain amount owed to the ex-husband. This court held

that the ex-husband was entitled to recover one-half of mortgage payments

on the co-owned land.

In Cahill v. Kerins, 34,552 (La. App. 2 Cir. 4/4/01), 784 So. 2d 685, a

boyfriend donated to his girlfriend an undivided one-half interest in his
8

home to his girlfriend. They were co-mortgagors on the home since 1996.

The relationship dissolved, and the girlfriend filed a petition for partition of

jointly owned property (the home). She sought partition by licitation, and

the boyfriend answered seeking partition in kind. The trial court held a

hearing on the matter and ordered partition by licitation. This court affirmed

that the home should be partition by licitation.

In Benoit v. Benoit, 11-0376 (La. App. 1 Cir. 3/8/12), 91 So. 3d 1015,

writ denied, 12-1265 (La. 9/28/12), 98 So. 3d 838, this couple remarried

each for a second time. The couple divorced, and the trial court held a

hearing on the partition of community property. Both parties appealed for

separate reasons, and admitted at the partition proceeding that the property

in dispute was purchased ten days prior to the second marriage. The parties

did not dispute that based on this evidence, that the home was not

community property, but rather, was co-owned property held by the parties

in division. The court determined that there needed to be a partition by

licitation or by private sale, and the proceeds should be distributed to the co-

owners in proportion to their shares.

In Slimp v. Sartisky, 11-1677 (La. App. 4 Cir. 9/17/12), 100 So. 3d

901, amended on reh’g in part, 11-1677 (La. App. 4 Cir. 10/11/12), writ

denied, 12-2430 (La. 1/11/13), 107 So. 3d 616, an unmarried couple

purchased a home together. The man contributed more money than the

woman. When the relationship ended, the man wanted the woman’s interest

in the home so he filed a partition. The house was partitioned, and the trial

court found that each party was a one-half owner of the home. The court

reallocated reimbursements here because of the filing of partition and other

waivers the parties executed between them.
9

In this case sub judice, there are several genuine issues of material

fact. Elaine is correct that this matter procedurally must begin with a

partition. It is undisputed that the parties signed the promissory note as co-

owners before the remarriage. However, the record is bereft of the filing of

a partition which would allow the court to render a judgment that is just,

legal, and proper. The record is also devoid of an agreement between Roy

and Elaine not to partition the property pursuant to La. C.C.P. art. 4601.

Roy fails to provide any law or jurisprudence that would allow him to be

subrogated in the place of the bank for reimbursement without a partition

(specifically partition by licitation). The law does not provide for the result

reached by the trial court in this matter. The lack of a partition creates a

genuine issue of material fact.

Additionally, the remaining genuine issues of material fact that would

allow the court to render a just, legal, and proper outcome include: (1) the

date of the filing of divorce for the remarriage; (2) whether either party

made a request for the possession and use occupancy of the home; (3) if so,

whether a contradictory hearing was conducted on the issue of use and

occupancy of the family home; (4) the date of the termination of the marital

community property regime; (5) whether the parties entered into a prenuptial

agreement and established a separate property regime; (6) whether the funds

utilized to pay the note during the second marriage from December 2008

until May 10, 2012 were funds earned during the marriage; and (7) an

appraisal of the home.

Accordingly, we find the trial court erred in granting the motion for

summary judgment. Because the trial court failed to follow the procedure

outlined in the code of civil procedure, it prematurely determined the
10

amounts of reimbursements. Therefore, in the interest of justice, we remand

the matter to the trial court for a more complete development of the record

and consideration of this issue in accordance with the views expressed

herein.

CONCLUSION

For the reasons stated above, the motion for summary judgment is

hereby reversed, and the matter is remanded to the trial court for further

proceedings. All costs of this appeal are assessed to appellee, Roy Peterson.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

11

ROBINSON, J., concurs.

I concur in the result. Ms. Peterson pled the affirmative defense of Mr.

Peterson’s exclusive use of the property in her original answer and further

addressed this in her affidavit in opposition to the motion for summary

judgment. I am of the opinion that this creates a genuine issue of material

fact and would preclude summary judgment.

1