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Date: 04-25-2020
Case Style:
Fairbanks Development, LLC v. Charles Woodrow Johnson and Jessica Lyn Petersen
Case Number: 53,427-CA
Judge: Jeanette G Garrett
Court: COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
Plaintiff's Attorney:
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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
2
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.
3
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,
4
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
5
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 coowners. 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
6
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.
7
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
8
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
9
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.
10
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 coowners 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
11
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.
12
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.
13
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
14
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.
15
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.
16
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.
17
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.
18
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
Outcome: 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.
Plaintiff's Experts:
Defendant's Experts:
Comments: