Georgian v. Harrington

• Decision Date: 16 September 2008
• Docket Number: No. 2007-CA-00849-COA.,2007-CA-00849-COA.
• Citation: 990 So.2d 813
• Parties: Ann Timothy GEORGIAN, Peter Timothy Georgian and Gus Timothy Georgian, Appellants, v. Georgia Beldekas HARRINGTON, Appellee.
• Court: Mississippi Court of Appeals

990 So.2d 813

Ann Timothy GEORGIAN, Peter Timothy Georgian and Gus Timothy Georgian, Appellants, v. Georgia Beldekas HARRINGTON, Appellee.

No. 2007-CA-00849-COA.

Court of Appeals of Mississippi.

September 16, 2008.

Moran M. Pope, Hattiesburg, attorney for appellants.

Kimberly L. Guthrie, Matthew W. O'Quain, attorneys for appellee.

Before LEE, P.J., ISHEE and ROBERTS, JJ.

ISHEE, J., for the Court.

¶ 1. This is an appeal from the judgment of the Forrest County Chancery Court holding that certain parcels of real property owned by four co-tenants could best be divided by selling the property at a public sale, rather than by dividing the property in kind. Appellants, Ann Timothy Georgian, Peter Timothy Georgian and Gus Timothy Georgian (Georgians), appeal, asserting that the chancellor erred by not ordering the property to be divided by partition in kind, given that this is the preferred method in Mississippi. Further, the Georgians argue that there was insufficient evidence to support a partition by sale, and at the very least, the chancellor should have ordered the property to be partitioned partially in kind and partially by sale. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 7, 2005, a complaint for partition was filed by the Georgians against Georgia Beldekas Harrington. The complaint alleged that the Georgians and Harrington owned, as tenants in common, certain real properties in Forrest, Lamar, and Harrison Counties. Specifically, the Georgians each owned a one-sixth interest in each piece of property, and Harrington owned a one-half interest.

¶ 3. At the chancellor's invitation, the parties submitted names of appraisers to the chancery court. After reviewing the recommendations, the chancellor appointed Doug Davis to appraise the properties and make a recommendation as to how they should be divided. Specifically, the chancellor ordered Davis to issue a report recommending whether the properties should be divided: (1) by sale, (2) in kind, or (3) partially in kind and partially by sale. If Davis recommended that the property be divided in kind, he was to submit a plan of division to the chancellor. If he recommended that the property be divided partially in kind and partially by sale, he was to submit a "detailed report" explaining how each property would be sold or divided in kind.

¶ 4. On March 2, 2006, Davis submitted his report and recommendation to the chancellor. The report grouped the various parcels of property in Forrest and Lamar Counties into five parcels and assigned a value to each. The report described each parcel as follows:

Parcel 1, known as Scovill Shopping Center, is a commercial property located at 821-831 Hardy Street in Hattiesburg, Mississippi. The property appraised for $310,000 and was assigned an effective gross income of $62,083.

Parcel 2, a "service station," is a commercial property located on 902 Hardy Street in Hattiesburg, Mississippi. The property appraised for $39,500 and was assigned an effective gross income of $5,700.

Parcel 3 is a commercial property located at 100-102 Pinehurst Street in Hattiesburg, Mississippi. The property appraised for $55,000 and was assigned an effective gross income of $11,400.

Parcel 4 is comprised of a three-unit office complex and residential duplex and located at 103 and 105 Broad Street in Hattiesburg, Mississippi. The property appraised for $150,000 and was assigned an effective gross income of $22,680.

Parcel 5 is comprised of a mix of commercial and residential properties located on Hwy 11 and Logaras Circle in Purvis, Mississippi. The property appraised for $158,000 and had no effective gross income.

Davis did not appraise Parcel 6 containing two residential lots in Harrison County. However, the parties stipulated that the property's value was $6,000.

¶ 5. A hearing was held on March 29, 2006, in which Davis was the only witness. Davis testified that based on his report and knowledge of the ownership during the appraisal process, it was his expert opinion that the properties should be sold with the proceeds divided pursuant to the ownership interest of each party. Davis noted that inequities found in the income production of the various parcels of property, the respective conditions of each property, as well as their close proximity to one another made it unlikely that the property could be divided evenly. Following the hearing, an order was entered giving the parties the opportunity to submit a confidential proposal to the chancellor "as to how the properties may or should be divided in kind or partially in kind and partially by sale, in lieu of selling all the properties and dividing the proceeds among the owners." The Georgians submitted a proposal to the chancellor, but Harrington did not. Instead, Harrington chose to rely on Davis's recommendation.

¶ 6. On March 6, 2007, the chancellor entered a judgment holding that the "more equitable remedy" was to sell the properties and divide the proceeds according to the parties' ownership interest. The chancellor noted that this procedure would "bring the best values of the properties." The judgment also made note of an unsolicited offer "from a local realtor" to purchase one of the parcels for an amount "in excess of the appraisal on file." According to the judgment, the unsolicited offer was to be placed in the file and accepted on that parcel. Subsequently, the parties filed a joint motion to amend the judgment to remove the language regarding the unsolicited offer, which was granted by the chancellor. The Georgians filed their appeal on May 17, 2007.

STANDARD OF REVIEW

¶ 7. "The standard of review for property partition cases is whether this Court finds manifest error in the decision of the chancellor, only then will this Court reverse the findings of the chancellor." Lynn v. Lynn (In re Will of Lynn), 878 So.2d 1052, 1055(¶ 11) (Miss.Ct.App.2004) (citing Robberson v. Burton, 790 So.2d 226, 228(¶ 9) (Miss.Ct.App.2001)).

DISCUSSION

Did the chancellor err in ordering that the property be partitioned by sale rather than by partitioning it in kind?

¶ 8. A partition in kind is the preferred method of partition of property under Mississippi law. Shaw v. Shaw, 603 So.2d 287, 290 (Miss.1992) (citing Monaghan v. Wagner, 487 So.2d 815, 819-20 (Miss.1986)). "The propriety of a partition sale or partition in kind is determined on a case-by-case basis." Fuller v. Chimento, 824 So.2d 599, 601(¶ 9) (Miss.2002) (citing Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 828-29 17 So.2d 196, 197 (1944)). "To justify a partition by sale, the party seeking the sale must bring his case squarely within [Mississippi Code Annotated section 11-21-11 (Rev.2004)]." Id. Section 11-21-11 states in pertinent part that:

If, upon hearing, the court be of the opinion that a sale of the lands, or any part thereof, will better promote the interest of all parties than a partition in kind, or if the court be satisfied that an equal division cannot be made, it shall order a sale of the lands, or such part thereof as may be deemed proper, and a division of the proceeds among the cotenants according to their respective interests.

Miss.Code Ann. § 11-21-11 (Rev.2004).

¶ 9. "The use of the conjunction `or' in this statutory scheme provides for a two-prong inquiry into the propriety of a partition sale. A partition sale can be had if it will (1) `better promote the interest of all parties than a partition in kind' or (2) `if the court be satisfied that an equal division [of the land] cannot be made.'" Fuller, 824 So.2d at 602(¶ 9) (citing Unknown Heirs at Law of Blair v. Blair, 601 So.2d 848, 850 (Miss.1992)). "Affirmative proof of at least one of these statutory requirements must affirmatively appear in the record in order for the court to decree a partition by sale." Id. "Further, the chancellor has no authority to decree a sale unless the statutory requisites are `clearly' met and a `substantial reason' exists for choosing partition by sale over partition in kind." Blair, 601 So.2d at 850 (citing Shorter v. Lesser, 98 Miss. 706, 712, 54 So. 155, 156 (1911)). The joint owner seeking a partition sale has the burden of proving that the land is not susceptible to partition in kind and that a sale is the only feasible method of division. Overstreet v. Overstreet, 692 So.2d 88, 90-91 (Miss.199...