Kristian Breaux v. Dillon Romero

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-174

KRISTIAN BREAUX

VERSUS

DILLON ROMERO

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 89128
LEWIS H. PITMAN, JR., DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

AFFIRMED.

Carl J. Castille
Post Office Box 1070
Carencro, Louisiana 70520-1070
(337) 534-4178
Counsel for Defendant/Appellant:
Dillon Romero

Ramon John Fonseca, Jr.
Standard Law, PPLC
921 Kaliste Saloom Road
Lafayette, Louisiana 70508
(337) 456-1163
Counsel for Plaintiff/Appellee:
Kristian Breaux

FITZGERALD, Judge.

This appeal stems from a judicial partition of co-owned immovable property.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Kristian Breaux, and the defendant, Dillon Romero, had been

dating for some time when they decided to purchase a home together. To this end,

they jointly made an offer to purchase a house and surrounding acreage in St. Martin

Parish. The offer was accepted. And ownership of the property was conveyed to

Kristian and Dillon by act of sale dated November 19, 2018.

The act of sale identifies Kristian and Dillon as the purchasers, and both

Kristian and Dillon executed the instrument in authentic form. The purchase price

for the property was $126,000.00. Most of this was financed through a mortgage

loan. And while Kristian and Dillon jointly executed the act of mortgage, only

Dillon signed the promissory note for the loan.

The parties moved into their new home in December 2018. But eight months

later, the couple decided to end their relationship. Kristian moved out of the home

in August 2019.

Seven months after that, in February 2020, Kristian filed suit against Dillon

for partition by licitation. Dillon answered, challenging the presumption of equal

co-ownership under La.Civ.Code art. 797; he also sought money damages, alleging

that Kristian had damaged the property after leaving the premises.

Trial was held on February 8, 2022. At the close of evidence, the trial court

took the matter under advisement. The trial court then issued written reasons on

March 25, 2022, and a final Judgment was signed on April 28, 2022. While the

Judgment granted Kristian’s request for partition, Dillon’s claims were denied.

Dillon now appeals this Judgment.

On appeal, Dillon asserts the following assignments of error:

(1) The District Court erred in requiring either co-owner to purchase
the other party’s interest for one-half of the appraised value of
the property without any reduction for the outstanding mortgage
balance.

(2) The District Court erred in finding that the presumption of equal
shares of ownership was not rebutted.

(3) The District Court erred in not awarding damages to [Dillon].

LAW AND ANALYSIS

Findings of fact are reviewed on appeal using the manifest error-clearly

erroneous standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617

So.2d 880 (La.1993). To reverse a trial court’s determination of fact under this

standard, an appellate court must review the record in its entirety and (1) find that a

reasonable factual basis does not exist for the finding, and (2) further determine that

the record establishes that the trial court is clearly wrong or manifestly erroneous.

Id. The appellate court must not reweigh the evidence or substitute its own factual

findings even if it would have decided the case differently. Id. And “where two

permissible views of the evidence exist, the factfinder’s choice between them cannot

be manifestly erroneous or clearly wrong.” Id. at 883.

Errors of law, on the other hand, are reviewed de novo. Evans v. Lungrin, 97-

541 (La. 2/6/98), 708 So.2d 731.

Second Assignment of Error

Because the trial court first had to decide whether Dillon rebutted the

presumption of co-ownership under La.Civ.Code art. 797, we begin our analysis by

reviewing Dillon’s second assignment of error: whether the trial court erred in

finding that the presumption was not rebutted. And we review this assignment using

the manifest error-clearly erroneous standard.

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Louisiana Civil Code Article 797 provides that “[o]wnership 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 interpretation of La.Civ.Code art. 797 was addressed by the Louisiana

Supreme Court in Fairbanks Dev., LLC v. Johnson, 20-1031 (La. 9/30/21), 330

So.3d 183.1 There, Ms. Petersen and Mr. Johnson purchased immovable property

together while they were dating. The act of sale conveyed ownership of the property

to Petersen and Johnson, both of whom signed the instrument before a notary public

and two witnesses. And even though Ms. Petersen’s separate funds were used in the

acquisition of the property, no ownership percentages were stated in the act of sale.

Many years later, a partition proceeding was filed, wherein Ms. Petersen

claimed to be the sole owner since her separate funds were used to purchase the

property. The supreme court disagreed, explaining as follows:

Petersen[’s] . . . proposed interpretation [of La.Civ.Code art. 797]
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
property. 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 made the
purchases solely in her name.”

Id. at 188-89.

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Fairbanks is a two-justice plurality decision: there were two concurrences and three
dissents.

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Like Fairbanks, the act of sale in our case was executed by Kristian and Dillon

before a notary public and two witnesses. Like Fairbanks, no ownership percentages

were stated in the act of sale. And like Fairbanks, Dillon did not allege any vice of

consent under La.Civ.Code art. 1948. Hence, the act of sale constitutes full proof of

Kristian and Dillon’s agreement as to equal ownership.

But even still, parol evidence was adduced by both parties without objection.

For instance, Dillon testified that his separate funds of $11,156.89 were used to

acquire the home, that he alone paid the monthly mortgage-note indebtedness, and

that Kristian did not make equal contributions for household bills and expenses.

Kristian, on the other hand, testified that her financial contributions were equivalent

to those made by Dillon.

In its written reasons, the trial court homed in on La.Civ.Code art. 797. As

the trial court put it:

[Dillon] did not present evidence to overcome the presumption
established under C.C. art. 797. The parties signed all documents
together, absent the mortgage note signed solely by [Dillon]. While it
seems [Dillon] agreed to pay the monthly mortgage payment, [Dillon’s]
only proof of payment toward the mortgage note is his own testimony.
[Kristian] provided paid receipts and canceled checks as proof of her
payments through August, 2019. The presumption of equal share must
stand. Accordingly, [Kristian] and [Dillon] are equal co-owners of the
property.

In summary, the trial court did not manifestly err in finding that Kristian and

Dillon each owned an undivided fifty-percent interest in the subject immovable

property. Hence, this assignment is without merit.

First Assignment of Error

In his first assignment of error, Dillon contends that the trial court “erred in

requiring either co-owner to purchase the other party’s interest for one-half of the

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appraised value of the property without any reduction for the outstanding mortgage

balance.” Here, the appropriate standard of review is de novo.

At the outset, there is nothing in the Judgment that requires Kristian or Dillon

to pay one-half of the appraised value without deducting the mortgage indebtedness.

Indeed, the Judgment does not order either party to purchase the property. The

parties are merely given the first opportunity to acquire the property. Next, the

Judgment provides that “either co-owner may negotiate a sale price with the other

co-owner.” If the parties cannot agree on a price, then the court-appointed notary is

ordered to effectuate the partition.

Put simply, the Judgment on its face adheres to the procedural rules governing

partitions between co-owners. See La.Code Civ.P. arts. 4601-4614. There is nothing

in these articles that requires the trial court to address the outstanding mortgage

indebtedness. Thus, this assignment is without merit.

Third Assignment of Error

In his third and final assignment, Dillon contends that the trial court erred in

failing to award damages. This assignment is reviewed under the manifest error

standard.

The basis for Dillon’s damages claim is La.Civ.Code art. 799, which states:

“A co-owner is liable to his co-owner for any damage to the thing held in indivision

caused by his fault.” Dillon asserts that Kristian damaged the property by changing

the alarm code, by denying him access to the property, by nailing the front door shut,

by making deep ruts in the yard with her vehicle, and by removing wires from his

stereo system.

As to the alarm code, Dillon testified at trial that that Kristian’s father

provided him with the new code within an hour of Dillon returning home.

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As to nailing the front door shut, Kristian testified that Dillon screwed the

front door shut because it would not stay closed. Curiously, Dillon testified that he

did not know who nailed the door shut, even though he specifically accused Kristian

of doing so in his pleadings.

As to the yard ruts, Dillon offered pictures into evidence showing the damage.

Yet he presented no evidence that Kristian caused the ruts. In contrast, Kristian

testified that the ruts were caused by Dillon riding his four-wheeler on the property.

And as to the stereo wire, Dillon admitted at trial that the stereo system was

actually owned by Kristian. But Dillon explained that he owned the wire that

Kristian removed. Kristian, in turn, contradicted this testimony.

In the end, the trial court observed Kristian and Dillon as they testified under

oath and subject to cross examination. And as between Kristian and Dillon, the trial

court found that Kristian was the more credible witness. The trial court accepted

Kristian’s testimony and denied Dillon’s damages claim. We find no manifest error

in that determination. Consequently, this assignment of error also lacks merit.

DECREE

For the above reasons, the Judgment of the trial court is affirmed. All costs

of this appeal are assessed to the defendant, Dillon Romero.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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