Entrada Co. v. Unopened Succession

882 So. 2d 661, 2004 La. App. LEXIS 2173, 2004 WL 2101805
CourtLouisiana Court of Appeal
DecidedSeptember 22, 2004
DocketNo. 38,800-CA
StatusPublished
Cited by5 cases

This text of 882 So. 2d 661 (Entrada Co. v. Unopened Succession) 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
Entrada Co. v. Unopened Succession, 882 So. 2d 661, 2004 La. App. LEXIS 2173, 2004 WL 2101805 (La. Ct. App. 2004).

Opinion

|,WILLIAMS, Judge.

The defendants1 appeal a judgment in favor of the plaintiff, Entrada Company, L.L.C. (“Entrada”). The trial court found that Entrada owned a two-sevenths interest in the property with the remaining five-sevenths owned by defendants. The court ordered that the 125-acre tract of land be partitioned by licitation. For the following reasons, we affirm. ■

FACTS

In November 2001, Entrada filed a petition to partition by licitation a tract of land containing approximately 125 acres located in Lincoln Parish, Louisiana, described as follows:

The Westfé of the NE 1/4 and the NE 1/4 of the NE 1/4 of Section 24, Township 18 North, Range 4 West; and Lots 6,7,8,14 and 15 in the West 3/8 of the NE 1/4 of SE 1/4 of Section 24.

Attorney Gina Jones was appointed as curator to represent the unopened successions and absentee defendants,

In February 2002, Erik Jackson, who was acting pursuant to powers of attorney, filed on behalf of defendants an answer and exceptions of no causé of action, prematurity and non-joinder of an indispensable party. After a hearing, the trial court denied the defendants’ exceptions. At a pre-trial conference in December 2002, the court advised Erik Jackson that he would not be permitted to represent defendants. In May 2003, attorney |2Steven Sylvester was allowed to enroll as counsel for the defendants and the curator was relieved of her duties.

After a trial, the court issued written reasons for judgment finding that Entrada owned an undivided two-sevenths interest in the land and that the remainder was owned by the successions of Jackson, Giles, Younger, Rentz and Griffith and their heirs. The court stated that the land consisted of rolling hills with an uneven distribution of timber, that an electrical transmission line'extended from the northeast to the southwest across the property and that only a 40-acre tract in the northwest corner of the property was suitable for home building. Finding that the land could not be divided in kind without a diminution of value, the court rendered judgment ordering that the property be partitioned by licitation. Defendants appeal.

DISCUSSION

In two assignments of error, the defendants contend the trial court erred in determining the plaintiffs ownership interest in the land. Defendants argue that the evidence concerning the chain of title does not support a finding that plaintiff acquired a 35-acre interest in the property.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of a factual issue was reasonable in [663]*663light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

In the present case, attorney Mike Toft was accepted as an expert in |3title examination of Louisiana immovable property. Toft testified that he reviewed the public records of Lincoln Parish, where the land is located, to determine the ownership of the property. Toft explained that plaintiffs predecessor in title, Mary Ellen Ben-net Lewis, had acquired a nine-acre interest in the land by deed from her father, Aaron Bennett. Later, as his only child, Lewis obtained the remainder of Bennett’s undivided interest in the land by judgment of possession rendered on August 12,1999, in the succession of Aaron Bennett. Lewis conveyed all of her interest to John and Alana Belton. Toft stated that the public records showed that in September 2001, plaintiff had acquired an undivided two-ninths interest in the property from the Beltons. Toft testified that he later learned of an affidavit of death and heir-ship indicating that Harlee Miller and Sadie Woodards had died without marrying or having children, and that their interests had passed to the other heirs. As a result, plaintiff owned a two-sevenths interest.

The plaintiff introduced into evidence the documents in the chain of title. Based upon this record, we cannot say the trial court erred in accepting Toft’s testimony based on the public records of the parish and in concluding that plaintiff owns an undivided two-sevenths interest in the property. The assignment of error lacks merit.

Defendants contend the trial court should not have reached a decision in this case prior to a ruling in the pending Arkansas probate proceeding which involved a purported will of Aaron Bennett. LSA-R.S. 9:5630 provides that an action to assert an interest in immovable property against a third party who has acquired an interest from an heir recognized in the | ¿judgment of possession, or his successors, prescribes two years from the date the judgment of possession becomes final.

Here, the record shows that a judgment of possession in the succession of Aaron Bennett was rendered in August 1999, recognizing Lewis as Bennett’s only child and granting to her all of his undivided interest in the subject land. In a sworn affidavit of death and heirship, Clifton Jackson, one of the defendants, stated that Aaron Bennett had died intestate. Lewis conveyed all of her undivided interest to the Beltons, from whom plaintiff acquired its undivided ownership interest.

Toft opined that the Arkansas proceeding could not affect the plaintiffs ownership interest in this land because more than two years had passed since the judgment of possession became final and under the statute, any action to challenge the ownership interest granted in the judgment of possession had prescribed. Defendants failed to show that the outcome of probate proceedings pending in another state would have any impact on the interests of the co-owners of this land. Thus, the trial court did not err in rendering judgment in this case. The assignment of error lacks merit.

Partition of Property

In the remaining three assignments of error, defendants contend the trial court erred in ordering partition by licitation. Defendants argue that the evidence did not support partition by licitation because plaintiff failed to satisfy its burden of proving that the property could not be divided in kind.

Unless otherwise provided by law or juridical act, no one may be compelled to hold a thing in indivisión with another and a co-owner has a bright to demand [664]*664partition of a thing held in indivision. LSA-C.C. art. 807; Ark-La-Miss Timber Co., Inc. v. Wilkins, 36,485 (La.App.2d Cir.12/11/02), 833 So.2d 1154. The law generally favors partition in kind unless the property is indivisible by nature or cannot be conveniently divided. LSA-C.C.P. art. 4606; Tri-State Concrete Co. v. Stephens, 406 So.2d 205 (La.1981). Property cannot be conveniently divided when the division would result in a diminution of its value, or loss or inconvenience to one of the owners. Tri-State Concrete v. Stephens, supra; Ark-La-Miss Timber v. Wilkins, supra.

LSA-C.C. art. 810 provides that the court shall order partition in kind when the thing held in indivisión 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 indivisión.

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882 So. 2d 661, 2004 La. App. LEXIS 2173, 2004 WL 2101805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/entrada-co-v-unopened-succession-lactapp-2004.