Georgian v. Harrington
| Docket Number: | 2007-CA-00849-COA Linked Case(s): 2007-CA-00849-SCT |
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| Oral Argument: | 04-01-2008 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-16-2008 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Partition by sale - Section 11-21-11 Judge(s) Concurring: Kiing, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Roberts, and Carlton, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 03-06-2007 Appealed from: Forrest County Chancery Court Judge: James H.C. Thomas, Jr. Disposition: REAL PROPERTY ORDERED SOLD AND PROCEEDS DIVIDED Case Number: 05-0314-GN-TH |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ANN TIMOTHY GEORGIAN, PETER TIMOTHY GEORGIAN AND GUS TIMOTHY GEORGIAN |
MORAN M. POPE |
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| Appellee: | GEORGIA BELDEKAS HARRINGTON | KIMBERLY L. GUTHRIE, MATTHEW W. O’QUAIN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Partition by sale - Section 11-21-11 |
| Summary of the Facts: | A complaint for partition was filed by Ann Timothy Georgian, Peter Timothy Georgian and Gus Timothy Georgian against Georgia Beldekas Harrington. The complaint alleged that the Georgians and Harrington owned, as tenants in common, certain real properties. Specifically, the Georgians each owned a one-sixth interest in each piece of property, and Harrington owned a one-half interest. The chancellor appointed Doug Davis to appraise the properties and 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. A hearing was held 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. 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 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 appeal. |
| Summary of Opinion Analysis: | The Georgians argue that the chancellor lacked affirmative proof to support his decision to partition the property through a public sale. A partition in kind is the preferred method of partition of property under Mississippi law. To justify a partition by sale, the party seeking the sale must bring his case squarely within section 11-21-11. A partition sale can be had if it will better promote the interest of all parties than a partition in kind or if the court is satisfied that an equal division of the land cannot be made. 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. It is clear from the record that the chancellor was presented with sufficient evidence to determine that a partition by sale was appropriate. Of great significance is the appraisal report presented by Davis. After appraising five out of the six parcels of property and issuing a one-hundred-page report, Davis testified before the chancellor that it was his expert opinion that the properties should be sold rather than partitioned in kind. In trying to compare the values, the location, the property type, and property use of each parcel, he could not envision a way that the properties could be equally divided. It is undisputed that the Georgians accepted Davis as an expert in the field of real estate appraisals without objection. They were also made aware of his report and opinion that a public sale would be in the best interests of the parties. If the Georgians disagreed with Davis’s findings, they could have employed their own expert to refute those findings. However, they chose not to do so. Therefore, the chancellor did not err by ordering the property to be sold and dividing the proceeds equally between the Georgians and Harrington. |
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