Vowell v. Waldrip Lands, LLC

Cite as 2025 Ark. App. 523
ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-24-466

TERRYE B. VOWELL; DAVID Opinion Delivered October 29, 2025
VOWELL; AND ZACHARY D.
NORTHCUTT D/B/A ZACHARY D. APPEAL FROM THE LEE COUNTY
NORTHCUTT FARMS CIRCUIT COURT
[NO. 39CV-23-78]
APPELLANTS
HONORABLE CHRISTOPHER W.
V. MORELEDGE, JUDGE

WALDRIP LANDS, LLC REVERSED AND REMANDED

APPELLEE

MIKE MURPHY, Judge

This is an appeal from an order confirming sale of property. The issue on appeal is

whether the circuit court erred when it ordered the sale of the jointly owned land without

appointing commissioners and without evidence that partition in kind would greatly

prejudice the owners. We reverse and remand.

I. Background

The property at issue is 396 acres of farmland. As of 2023, the Northcutts had farmed

the land for thirty-one years, first by Rusty Northcutt, and after his death, by his son, Zachary.

Rusty and his wife, Terrye (now Terrye Vowell), owned a one-third undivided interest in the

land. The appellants are Terrye; Terrye’s new spouse, David Vowell; and Zachary. Austin
Mauldin owned another one-third undivided interest in the property. The remaining one-

third interest belonged to the children of Charles Moseley.1

On June 8, 2023, Waldrip Lands, appellee, bought Mauldin’s one-third interest.

Eight days later, Waldrip Lands sent a letter to Zachary informing him that, effective 2024,

Waldrip Lands and Moseley were terminating the farm lease agreement. Waldrip Lands and

its owner, Mark Waldrip, as attorney-in-fact for Charles Moseley, then sought a declaratory

judgment that they could terminate the lease without Terrye’s consent. The complaint

sought a declaration from the court to establish that Zachary was given proper notice to

terminate the farm lease pursuant to Arkansas Code Annotated section 18-16-105 (Supp.

2023).2 At the time this complaint was filed, the property was owned by Waldrip Lands,

Moseley, and Terrye Vowell as tenants in common, with each owning an undivided one-

third interest.

The circuit court held a hearing on the petition on January 25, 2024. Testimony

generally established who owned the property, who had a lease to farm the property, whether

1
Ned Winston Moseley, Heather Elizabeth Moseley, and Christopher Daniel Moseley
held their undivided one-third subject to the life estate of Charles Moseley.
2
Ark. Code Ann. § 18-16-105 states,

The owner of farmlands that are rented or leased under an oral rental or lease
agreement may elect not to renew the oral rental or lease agreement for the following
calendar year by giving written notice by any method of service permitted under Rule
4 of the Arkansas Rules of Civil Procedure to the renter or lessee on or before June
30 that the oral rental or lease agreement will not be renewed for the following
calendar year.

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Zachary had been properly served, who had power of attorney for whom, who could

terminate the lease, and whether the property was heir property.

At the conclusion of the hearing, the court found that notice to terminate Zachary’s

farm lease was properly given. The circuit court further ordered the parties to resolve their

dispute within fourteen days, and if they could not resolve the dispute, the court would

appoint the clerk to sell the property.

A few weeks later, Terrye and Zachary filed a motion for reconsideration. The motion

asserted that despite there being no petition for the partition of the land by sale or division,

the court erred in directing that the land be sold in fourteen days if the parties could not

“remedy this.”

On February 12, 2024, Terrye, along with her husband, David, and Zachary filed a

counterclaim for partition. The counterclaim asked the court to divide the property in

accordance with the Uniform Partition of Heirs Property Act, Ark. Code Ann. §§ 18-60-

1001 et seq. (Repl. 2015 & Supp. 2023). They contended the property was able to be divided

in kind.

On February 27, Waldrip Lands moved to dismiss the counterclaim and filed an

amended petition for the court to order a sale of the property. The motion stated that on

February 24, Waldrip Lands acquired Mosely’s one-third interest and that the heirs-property

act was therefore inapplicable. In the amended petition, Waldrip Lands alleged that the land

“is so situated that partition in kind cannot be made without great prejudice to the owners

of the property.” It further alleged that “since the property being partitioned is not

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susceptible to division without great prejudice to the owners of the property, the court . . .

should order that the property be sold without the appointment of commissioners . . . .”

The appellants answered, asserting that the court should appoint commissioners

instead of ordering a sale pursuant to section Arkansas Code Annotated section 18-60-424

(Repl. 2015) without the appointment of commissioners. The same day their answer was

filed, they sent a letter to the court stating that they disagreed with the proposed order from

the January hearing because the court had not addressed the motions and pleadings that had

been filed since the hearing. They again objected to the sale of the property because “there

has been no evidence before the court from which the court could make a determination as

to whether the property is or is not capable of being divided in kind without prejudice to the

owners.”

On March 6, the court entered an order reflecting its comments from the January

hearing and found “the parties have submitted letters to the Court indicating there is no

agreement,” and it directed the property be sold on the courthouse steps to the highest

bidder.

On March 12, the appellants moved for reconsideration and asked that the matter be

set for a new trial “so that both parties can produce evidence from which the court can make

an informed decision as to partition in kind or partition by sale.” It alleged,

To sell the land without first giving the parties the right to offer proof as to why or
why [not] 396.752 acres of bare crop land can not be divided in kind when there are
no substantial improvements on the land like houses, grain bins, etc. would be an
abuse of discretion, arbitrary, capricious and an unreasonable for it would have been

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made without hearing any evidence to [ ] decide why the land can not be divided in
kind.

They also filed a request for findings of fact and conclusions of law, a stay of the sale, and

the appointment of a receiver to farm the property.

Without a ruling on the motions, the sale was held on March 25, 2024. Vowell and

Waldrip Lands were among the bidders. Waldrip Lands was the highest bidder at $2.61

million. The order confirming the sale was entered on April 9, 2024. On April 16, appellants

Terrye, David, and Zachary filed a notice of appeal and a second motion for reconsideration.

They also filed a motion for stay pending appeal and motion for recusal. On May 11, the

court conducted a hearing denying these motions. On July 12, appellants filed a

supplemental notice of appeal designating the transcript from the July hearing.

I. Standard of Review

Partition cases often involve factual determinations regarding the feasibility of

partition in kind versus sale as well as judicial discretion in confirming or disapproving

partition sales. We apply different standards of review depending on whether the issue

involves factual findings, legal conclusions, or discretionary decisions.

In civil bench trials, the standard of review on appeal is not whether there is

substantial evidence to support the findings of the court but whether the court’s findings

were clearly erroneous or clearly against the preponderance of the evidence. Primus Auto. Fin.

Servs., Inc. v. Wilburn, 2013 Ark. 258, at 4, 428 S.W.3d 480, 483. Generally, a circuit court is

conferred with the authority to decide whether partition in kind is feasible, which can be a

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question of fact based on evidence of the nature of the land and the nature of the interests

of the owners. See McNeely v. Bone, 287 Ark. 339, 342, 698 S.W.2d 512, 514 (1985). A

finding is clearly erroneous when, although there is evidence to support it, the reviewing

court on the entire evidence is left with a firm conviction that a mistake has been committed.

Primus, supra. Where the issue is one of law, our review is de novo. Id.

II. Discussion

Appellants contend the circuit court did not follow proper procedure concerning

partition and the sale of land. We agree.

An action for partition may be brought in circuit court by “any persons having any

interest in and desiring a division of land held in joint tenancy, in common . . ..” Ark. Code

Ann. § 18-60-401(a) (Repl. 2015). A landowner who wishes to divide jointly held land must

file a petition asking for division, and if it appears that partition cannot be made without

great prejudice to the owner, it may ask for a sale of the property. Id.

Upon determining the interests of the parties and deciding that partition should be

ordered, the circuit court may appoint commissioners to divide the land in kind, if possible,

according to those interests. Arkansas Code Annotated section 18-60-420 (Repl. 2015)

provides that if the commissioners appointed by the court report that partition in kind

cannot be made without great prejudice, and if the court finds the report just and correct, it

may order the property to be sold at public auction or through a negotiated sale under terms

set by the court. Id.

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Alternatively, Arkansas Code Annotated section 18-60-424 provides that “[t]he court

may order a sale without the appointment of commissioners if the court determines from

the evidence presented that there is no necessity for the appointment of commissioners.”

On the basis of our de novo review, we hold that the court erred in ordering the land

to be sold before a petition for partition was filed. The original hearing had nothing to do

with whether a partition should be ordered because at that point the issue was whether the

farm lease agreement could be terminated. The court’s order of the sale of land after this

hearing was premature. Indeed, the court stated from the bench,

[T]he cases that I have found in other jurisdictions simply says it when they can’t get
along, their remedy is to file a claim -- complaint for partition. And then the Court
has every right to partition the land. Again, though, in equity. How do I partition
property? I don’t know what is heirable and what is not. What is timberland. I don’t
know what’s what. I don’t know anything about that right now. There’s nothing in
evidence at this point.

Neither party filed for a partition until after this hearing. And even still, the posthearing

filings do not demonstrate whether the land could be partitioned in kind without great

prejudice. It is also not evident whether the appointment of commissioners is necessary.

Appellee contends we must affirm because land is unique, and the court is familiar

with farmland in the First Judicial Circuit. This argument is conclusory and lacks evidentiary

support.

The judgment as to the sale is therefore reversed. On remand, the circuit court is

directed to hear evidence or refer the question to commissioners to examine the land and

determine whether partition in kind can be made without prejudice.

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Reversed and remanded.

GLADWIN and HIXSON, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; and Daggett & Perry,

PLLC, by: Jesse B. Daggett, for appellants.

Castleberry Law Firm, PLLC, by: Kenneth P. “Casey” Castleberry; and Felton Smith &

Waldrip, by: T. Benton Smith and Brett M. Waldrip, for appellee.

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