Pullig Holdings, L.L.C. and Mudd Holdings v. Succession of Eddie Lewis

Judgment rendered August 11, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,000-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

PULLIG HOLDINGS, L.L.C. AND Plaintiffs-Appellees
MUDD HOLDINGS

versus

SUCCESSION OF EDDIE LEWIS, Defendants-Appellants
ET AL.

*****

Appealed from the
Second Judicial District Court for the
Parish of Claiborne, Louisiana
Trial Court No. 41,885

Honorable Jenifer Ward Clason, Judge

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CARL H. FRANKLIN Counsel for Appellant,
Bonestine Johnson a/k/a
Bonnie Lewis Johnson

BETHARD AND BETHARD, L.L.P. Counsel for Appellees,
By: Benjamin T. Bethard Pullig Holdings, L.L.C.
and Mudd Holdings

JOHNNY C. SUMLIN Appellee, In Proper
Person

SHARUNDA SUMLIN Appellee, In Proper
Person

LISA L. JOHNSON Appellee, In Proper
Person

DANIEL D. SUMLIN Appellee, In Proper
Person

MIRANDA RANSOME Appellee, In Proper
Person

ANGELA GRIFFIN-YARMAK Appellee, In Proper
Person

RICKY L. SUMLIN Appellee, In Proper
Person

BONNIE ETHEL JOHNSON Appellee, In Proper
Person

CRYSTAL SUMLIN COMBS Appellee, In Proper
Person

DIANN M. SUMLIN Appellee, In Proper
Person

ADDIE SUMLIN CARTER Appellee, In Proper
Person

SADIE WILLIAMS ALICEA Appellee, In Proper
Person

JIM TOM SUMLIN Appellee, In Proper
Person

JESSIE P. SHYNE Appellee, In Proper
Person

ORA D. SUMLIN Appellee, In Proper
Person

VERSHETTA SUMLIN SOLOMON Appellee, In Proper
Person

JARIUS LEE HUFFAKER Appellee, In Proper
Person

MARY R. HAMPTON Appellee, In Proper
Person

MILIK WIGGINS Appellee, In Proper
Person

JAIYA ALSTON Appellee, In Proper
Person

LAURA HEARN Appellee, In Proper
Person

JADEN ALSTON Appellee, In Proper
Person

*****

Before MOORE, STONE, and ROBINSON, JJ.

ROBINSON, J.

In this partition case concerning an 80-acre tract of land in Claiborne

Parish, a co-owner appealed the judgment ordering a partition by licitation.

We affirm the judgment.

FACTS

Tom Lewis and Addie Wilson Lewis (“the Lewises”) acquired the

subject property in 1916. Their five children inherited the parents’ interests

in the property. In 1978, Frank Winzer obtained an undivided interest in the

property from four of the Lewises’ children, one of whom was apparently

his mother, and the descendants of the fifth child. In 2007, Red Oak Timber

Company, LLC obtained an undivided interest in the subject property from

some of the descendants of the Lewises and of Winzer. In 2013, Red Oak

conveyed one-half of its interest to Pullig Holdings, LLC (“Pullig”) and the

other one-half interest to Mudd Holdings, LLC (“Mudd”).

On August 6, 2019, Mudd and Pullig filed a petition for partition of

the subject property by licitation. Various descendants of the Lewises were

named as defendants, and an attorney was appointed to represent any

absentee defendants. Attached to the petition were a title abstract and

affidavits from Sandra Sanford, the accountant for Mudd and Pullig. One

affidavit listed the descendants of the Lewises based on conversations that

Sanford had with Lisa Johnson, a granddaughter of the Lewises. The other

affidavit listed the heirs of Frank Winzer.

Bonnie Lewis Johnson, a daughter of the Lewises and the owner of an

undivided interest in the property, filed an answer in which she asserted that

neither Mudd nor Pullig could prove that they were a co-owner. She

asserted in the alternative that any partition should be in kind. The petition

was amended to reflect the purported ownership interests as they existed at

that moment.

Trial on the merits was held on August 21, 2020. Sam Pullig is a

manager of both Mudd and Pullig. He testified that he attempted to work

with the other co-owners to harvest the timber or divide the property.

Sandra Sanford testified concerning the payment of property taxes. Lisa

Johnson testified about her knowledge concerning the descendants of the

Lewises. Johnson had provided the information to Sanford for one of her

affidavits. Introduced into evidence at trial were the exhibits attached to the

petition and deeds reflecting the conveyances of interests in the property.

The trial court found that the evidence established Mudd’s and

Pullig’s title to the property and that every link in the title had been

adequately proven. On August 21, 2020, the trial court signed a judgment

recognizing Mudd and Pullig as each having a 20% ownership interest in the

property. Bonnie Lewis Johnson was also determined to own a 20%

interest. Twenty-two other individuals were recognized as co-owners of the

property, with their ownership interests ranging from 0.10% to 6.6%. The

court also ordered the property to be sold to effect a partition by licitation.

On September 9, 2020, Bonestine Johnson, a daughter of Bonnie

Lewis Johnson, filed a motion for a suspensive appeal as the agent for her

mother. Unfortunately, Bonnie Lewis Johnson died on December 25, 2020,

at the age of 101 years old. Bonestine Johnson, appearing as the executrix

of her mother’s estate, filed a motion to substitute the proper party

appellants, which this Court granted.

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DISCUSSION

No one may be compelled to hold a thing in indivision with another

unless the contrary has been provided by law or juridical act. La. C.C. art.

807. Any co-owner has a right to demand partition of a thing held in

indivision. Id.

Johnson first argues that the trial court erred in ordering a partition

because Mudd and Pullig did not prove every link in their claim of title to

the property that would entitle them to force a partition by licitation. This

argument is without merit. The trial court was presented with deeds

showing the conveyances of various ownership interests to Red Oak. The

court also heard testimony detailing the lineage of the Lewises’ descendants.

Johnson next argues that the trial court erred in accepting Mudd’s and

Pullig’s calculations of their ownership interests such that Johnson was

precluded from exercising the option to purchase their interests at a private

sale following an appraisal. La. R.S. 9:1113 states:

A. If immovable property is susceptible to partition by licitation
or private sale pursuant to Civil Code Article 811, and a
petition to partition the property is filed by a co-owner or co-
owners owning either an aggregate interest of fifteen percent or
less of the immovable property or an aggregate interest of
twenty percent or less of the immovable property if there was
past ownership of the whole by a common ascendant, the court
shall allow the remaining co-owners to purchase at private sale
the petitioners shares at a price determined by a court-appointed
appraiser.
B. (1) Each remaining co-owner shall only be entitled to
purchase a portion of the property being sold equal to his pro
rata share. Each remaining co-owner shall have thirty days from
the date the last defendant is served with the petition to partition
or thirty days from receipt of written notice, sent by certified
mail or commercial courier, from a co-owner waiving his right
to purchase, whichever is earlier, in which to file a notice to
exercise his option to purchase his pro rata share of the property
being sold. Where past ownership of the property was by a
common ascendant, each remaining co-owner shall have ninety
rather than thirty days to file the notice provided by this
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Paragraph. The filed notice, which shall be served on all parties,
shall be considered a fully binding contract to purchase the
property.
(2) Upon the lapse of the time in which to file the notice
required in Paragraph (1) of this Subsection, any co-owner who
has failed to timely exercise his option to purchase the property
shall relinquish his right to purchase his pro rata share. The
relinquishment of the right to purchase shall enure to the benefit
of the remaining purchasing co-owners, who shall then be
entitled to purchase, by pro rata share, the shares made
available by the co-owner who relinquished his right to
purchase. Each remaining purchasing co-owner shall have an
additional ten days from the previous deadline to file his notice
to purchase the relinquished shares.
(3) The procedures provided in this Subsection shall continue
until there are no outstanding forfeited shares; however, the
court may use its discretion in rounding the shares of the co-
owners to the nearest hundredth share.
(4) The initial calculation of the pro rata share in this
Subsection shall be based on the percentage of ownership of
potential purchasing co-owners, excluding the petitioning co-
owners. When a potential purchasing co-owner relinquishes his
right to purchase, the pro rata share shall be recalculated to
include only the remaining purchasing co-owners, excluding
the relinquishing co-owners. Once a purchasing co-owner
relinquishes his right to purchase his pro rata share, he shall not
be entitled to file any subsequent notice to purchase in the
pending action.

Mudd and Pullig each own a 20% interest, and their aggregate interest

is 40%. Thus, because their ownership interests exceed the statutory

minimum on both an individual and aggregate basis, Johnson was not

entitled to purchase their interests at private sale at a price determined by a

court-appointed appraiser. La. R.S. 9:1113 is inapplicable in this matter.

Finally, Johnson argues that the trial court erred in ordering partition

by licitation without any testimony regarding the difficulty or cost to

partition. She further contends that nothing in the record supports the claim

that partition in kind will cause a diminution in value or loss of convenience

of one of the owners.

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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. La. C.C.P. art. 4606.

The burden of proof is on the party seeking partition by licitation to

prove that the property cannot be divided in kind. Tri-State Concrete Co.,

Inc. v. Stephens, 406 So. 2d 205 (La. 1981). The general rule is that

partition in kind is favored over partition by licitation. Id.

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. La. C.C. art.

810.

At the time that the trial court rendered its judgment, La. C.C. art. 811

read:

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. In the event that one or
more of the co-owners are absentees or have not consented to a
partition by private sale, the court may set the terms of the sale
and order a partition by private sale.

La. C.C. art 811 was subsequently amended by 2021 La. Acts. No. 27.

The decision of whether land should be divided in kind or by licitation

is a question of fact to be decided by the trial court. Mitchell v. Cooper,

48,125 (La. App. 2 Cir. 7/24/13), 121 So. 3d 736.

There must be as many lots as there are shares or roots involved. Tri-

State Concrete Co., Inc. v. Stephens, supra. There are at least 25 co-owners,

with the smallest share in the subject property being a 0.10% interest. A

partition in kind would be inconvenient and impractical under the
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circumstances. Accordingly, the trial court was not manifestly erroneous in

ordering a partition by licitation.

CONCLUSION

For the foregoing reasons, the judgment is affirmed at appellant’s

costs.

AFFIRMED.

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