Broussard v. Stutes Farms, LLC

134 So. 3d 226, 13 La.App. 3 Cir. 1122, 2014 WL 852768, 2014 La. App. LEXIS 606
CourtLouisiana Court of Appeal
DecidedMarch 5, 2014
DocketNo. 13-1122
StatusPublished

This text of 134 So. 3d 226 (Broussard v. Stutes Farms, LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broussard v. Stutes Farms, LLC, 134 So. 3d 226, 13 La.App. 3 Cir. 1122, 2014 WL 852768, 2014 La. App. LEXIS 606 (La. Ct. App. 2014).

Opinion

AMY, Judge.

IjThe parties are owners in indivisión of property in Cameron Parish used for duck hunting. Upon petition for partition of the property, the trial court ruled in favor of the plaintiff, finding that the property must be partitioned by licitation. The defendant appeals, asserting the trial court erred in failing to order that the property be partitioned in kind. For the following reasons, we affirm.

Factual and Procedural Background

The parties, James Steven Broussard and States Farms, LLC, are the owners in indivisión of two parcels of coastal marsh property in Cameron Parish. The parties stipulated to the property descriptions, to their respective ownership interest in the two tracts, and to the fact that the highest and best use of the property is duck hunting.

The first tract at issue is a five-acre1 parcel, owned ½ by the plaintiff and ⅜ by the defendant. The second tract, a 120-acre 2 parcel, is owned 3/8ths by the plaintiff and 5/8ths by the defendant. Rex States, a member of States Farms, LLC, as were his father and brother, testified that States Farms purchased its interest in |2the property in 2009 for hunting and recreation purposes. Mr. States explained that, shortly thereafter, Mr. Broussard acquired his own interest in the property and sought to purchase the States Farms’ interest.

After States Farms declined Mr. Brous-sard’s offer, Mr. Broussard filed a petition for judicial partition, seeking to have the court partition the property by licitation. In opposition, States Farms sought to have the property partitioned in kind. At trial, the parties presented testimony as to whether partition by licitation was possible for the parties’ common intended use of the property as an area for duck hunting. Mr. States testified that, if the property was partitioned in kind, his group would agree to provide a right-of-way, if necessary, for the plaintiff to access his property. Ultimately, however, the trial court found in favor of Mr. Broussard, concluding that he “met his burden of proof that the property cannot be divided in kind without diminishing its value and without inconveniencing the parties, and that the division of the property must be by licitation.”

States Farms appeals, assigning the following as error:

1. The Trial Court erred in ruling that the property was to be partitioned [228]*228by licitation, as there is a presumption under the law that a property must be partitioned in kind and the plaintiff did not offer evidence to defeat the presumption.
2. The Trial Court erred in ruling that the property was indivisible by nature and cannot be conveniently divided and therefore must be partitioned by licitation, to be partitioned by licitation.

Discussion

Ownership in Indivisión

The parties in this case own the subject property in indivisión. Louisiana Civil Code Article 797 defines this type of ownership as the “[ojwnership of the same thing by two or more persons[.]” However, La.Civ.Code art. 807 provides |sthat “[n]o one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act.” Thus, “[a]ny co-owner has a right to demand partition of a thing held in indivi-sión.” Id. In the event the co-owners do not agree on the mode of partition, “a co-owner may demand judicial partition.” La.Civ.Code art. 809.

In such an event, La.Civ.Code art. 810 provides that “[t]he court shall decree partition in kind when the thing held in indivi-sión 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 the state of indivisión.” See also La.Code Civ.P. art. 4606 (providing 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.”)

Otherwise, La.Civ.Code art. 811 requires partition by licitation as follows:

When the thing held in indivisión 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.

In light of the favor afforded partition in kind, a party seeking partition by licitation has the burden of proving that the property cannot be divided in kind. Tri-State Concrete Co., Inc. v. Stephens, 406 So.2d 205 (La.1981). See also Cooper v. Buxton, 07-1192 (La.App. 3 Cir. 4/2/08), 979 So.2d 1291. A trial court’s decision as whether to divide property in kind or by licitation is a question of fact and is, thus, governed on appeal by the manifest error standard of review. Fessler v. Brumfield, 09-1458 (La.App. 3 Cir. 5/5/10), 37 So.3d 522.

\ ¿Merits

Referencing the law’s preference for a partition in kind, States Farms challenges the trial court’s determination that the property is not susceptible to a partition in kind. Pointedly, States Farms argues that the ultimate factor in any partition is whether the property can be divided into shares of nearly equal value. See La.Civ.Code art. 810. Here, States Farms argues, the plaintiff did not offer testimony regarding the “value” of the property if it were divided.

Having reviewed this matter, we find no manifest error in the trial court’s conclusion that the property at issue is not susceptible to partition in kind. Importantly, and per the parties’ stipulation, the highest and best use of the coastal marsh property is for duck hunting. This acknowledged use is reflected in the nature of the evidence presented by the parties at trial.

As described by Charles Hebert, the plaintiffs expert as to the property’s title, location, and topography, the property is [229]*229rectangular in shape, “[a] little longer north and south than it is east and west.” Mr. Hebert explained that a ridge, that serves as the sole access to the area, “runs almost down the middle[.]” He further stated that “there’s marsh to the north of the ridge ... and deeper marsh to the south of the ridge.” Mr. Hebert testified that marsh to the north of the ridge is “grown up a good part of the year” and is “dry a good part of the year.” Mr. Hebert opined that the property south of the ridge is the tract’s “ ‘good hunting’ ”. Given this division, Mr. Hebert explained that the northern portion of the property is not “worth” as much as the southern portion of the property for the use of duck hunting.

Similarly, Ernest Carol Trahan, who the trial court accepted as an expert in drainage and hunting, testified that he had “worked” the area his entire life, was |,familiar with the property’s drainage, and was perhaps more familiar with the property than anyone else. Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tri-State Concrete Co., Inc. v. Stephens
406 So. 2d 205 (Supreme Court of Louisiana, 1981)
Fessler v. Brumfield
37 So. 3d 522 (Louisiana Court of Appeal, 2010)
Cooper v. Buxton
979 So. 2d 1291 (Louisiana Court of Appeal, 2008)
Grasser Contracting Co. v. City of New Orleans
118 So. 841 (Louisiana Court of Appeal, 1927)

Cite This Page — Counsel Stack

Bluebook (online)
134 So. 3d 226, 13 La.App. 3 Cir. 1122, 2014 WL 852768, 2014 La. App. LEXIS 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-stutes-farms-llc-lactapp-2014.