Simpson v. Baker

687 So. 2d 1079, 1997 WL 21179
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1997
Docket29090-CA
StatusPublished
Cited by6 cases

This text of 687 So. 2d 1079 (Simpson v. Baker) 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
Simpson v. Baker, 687 So. 2d 1079, 1997 WL 21179 (La. Ct. App. 1997).

Opinion

687 So.2d 1079 (1997)

D.A. SIMPSON, Jr., et al., Plaintiffs-Appellants,
v.
Annette Bullard BAKER, et al., Defendant-Appellee.

No. 29090-CA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1997.
Writ Denied April 4, 1997.

Wiener, Weiss, Madison & Howell by John M. Madison, Jr., Shreveport, for Plaintiffs-Appellants.

Peters, Ward, Bright & Hennessy by Frank Bright, Shreveport, for Defendant-Appellee.

Before MARVIN, C.J., and HIGHTOWER and WILLIAMS, JJ.

MARVIN, Chief Judge.

In this action to partition 38 acres of rural Caddo Parish land co-owned by the plaintiffs, Mr. and Mrs. Simpson, and the defendant, Mrs. Baker, in the respective proportions of 2/15 (13 percent) and 13/15 (87 percent), the Simpsons appeal a judgment rejecting their demands for a partition by licitation and homologating a partition of the property in kind before a notary public.

Finding no factual or legal error in the trial court's conclusion that the property is susceptible to being partitioned in kind, nor any abuse of discretion in the manner in which the partition was effected, we affirm. La.C.C. arts. 810, 811; La.C.C.P. arts. 4605, 4606.

*1080 PREFACE

The land in question is located in western Caddo Parish, south of Interstate 20, between the city limits of Shreveport and the town of Greenwood. Originally owned and occupied by defendant's parents, C.D. and Ora Bullard, the land has been used to graze cattle and grow timber since the 1980s. It has the potential for future residential development, according to plaintiffs' expert witness. Plaintiffs purchased their interest in the property from defendant's paternal half-siblings in 1982, about a year after Mr. Bullard's death. Mrs. Bullard's heirs and legatees acquired her interest in the property at her death in 1990. By the time of trial in 1995, the defendant, Annette Bullard Baker, had purchased the interests of all but one of her maternal relatives. She acquired the remaining interest after the trial and submitted evidence of her acquisition to the trial court, over plaintiffs' objection, before the court rendered its judgment.

Before the partition, the essentially square tract measured 1310 feet front on Simpson Road, which forms the western boundary of the tract, by a depth of 1290 feet between parallel lines. The partition was effected by dividing the tract into seven smaller rectangular lots of equal size, each of which has a frontage of about 187 feet on the public road, maintains the original depth of 1290 feet, and contains just over five acres. Plaintiffs drew one of the seven lots at random, and the remaining property was awarded to Mrs. Baker.

Plaintiffs' arguments on appeal that the property is not susceptible to being partitioned in kind are not founded on any physical attributes of the property, which is essentially uniform in topography, road access and other physical features. Plaintiffs also make no claim that the lot drawn by them is worth less than any one of the six lots awarded to Mrs. Baker. Their sole complaint concerns the trial court's calculation of the appropriate number of lots or "shares" into which the property was divided to determine its susceptibility to an in-kind partition under La. C.C. art. 810, which we emphasize:

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 the state of indivision.

See also La. C.C.P. art. 4606: "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."

The alternative and less favored remedy of partition by licitation becomes available only when the party seeking that remedy proves by a preponderance of the evidence that the thing held in indivision is not susceptible to being partitioned in kind. La. C.C. art. 811; Tri-State Concrete Co., Inc., v. Stephens, 406 So.2d 205 (La.1981); Birdwell v. Jeffery, 486 So.2d 1094 (La.App. 2d Cir.1986).

The fractional ownership interests of the litigants mentioned above, 2/15 for the Simpson plaintiffs and 13/15 for defendant Mrs. Baker, reflect Mrs. Baker's acquisition of the interests of the numerous co-owners of the property after this suit was filed in 1993. All but one of these acquisitions was accomplished before the trial in March 1995. The remaining acquisition of a 1/20 interest from the heirs of Willie Lee Jones was under negotiation at the time of trial, according to Mrs. Baker's testimony, but was not completed until after the trial. This acquisition was brought to the trial court's attention by Mrs. Baker's "motion for summary judgment" filed in early 1996, a few months before the trial court rendered its judgments which respectively ordered and homologated the partition in kind between the Simpsons and Mrs. Baker as the sole co-owners.

ARGUMENTS ON APPEAL

Plaintiffs make several arguments on appeal. First, they contend that La.C.C. art. 810, which took effect on January 1, 1991 as part of a newly enacted title on "Ownership in Indivision" and refers on its face only to the "shares" of ownership, must be read together with Art. 1364, by which the property to be partitioned among the heirs of a succession, or among other co-owners by analogy (Art. 1290), must be divided "into as many equal lots as there are heirs, or roots *1081 entitled to a share." Our emphasis. The latter provision has been restated in the case law as requiring that the property be divided into "as many lots as there are shares or roots involved" to determine whether it may be partitioned in kind. See Tri-State Concrete, supra, and cases cited therein at p. 208. See also Art. 1370, providing that the interests of "coheirs of the same root" are to be subdivided and partitioned in the same manner as are the interests of the co-owners by share.

By plaintiffs' calculations, the number of "roots of ownership" existing before plaintiffs purchased their interest in the tract in 1982 was 14, and the lowest common denominator of these fractional interests, ranging from 1/50 to 1/20 to 3/20 to 1/10, was 100. Plaintiffs contend the trial court should have assessed the property's susceptibility to being partitioned in kind by considering whether the 38-acre tract could be divided into 100 lots without lowering the property's value. Obviously, plaintiffs argue, it could not.

Alternatively, plaintiffs contend the trial court should have disregarded the post-trial "evidence" of Mrs. Baker's acquisition of the interest of the Jones heirs, which came before the court by motion for summary judgment, and should have considered only the fractional ownership interests as they existed at the time of trial: 49/60 for Mrs. Baker, 2/15 or 8/60 for plaintiffs, and 1/20 or 3/60 for the Jones heirs. Again, plaintiffs contend the lowest common denominator of these interests is 60, and the property could not be divided into 60 lots without a diminution in value.

Finally, plaintiffs contend that even if the trial court properly considered only the ownership interests of the Simpsons and Mrs. Baker, 2/15 and 13/15 respectively, the smallest fractional ownership interest or "share" to be partitioned is two-fifteenths.

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Cite This Page — Counsel Stack

Bluebook (online)
687 So. 2d 1079, 1997 WL 21179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simpson-v-baker-lactapp-1997.