JANET H. SOLESBEE and husband CARL SOLESBEE, Petitioners,
CHERYL H. BROWN and husband ROGER BROWN, GWENDA H. ANGEL and husband WESLEY ANGEL, and LISA H. DEBRUHL and husband J. DELAINE DEBRUHL, Respondents.
in the Court of Appeals 3 May 2017.
by Lisa H. Debruhl and J. Delaine Debruhl (collectively,
"the Debruhls") from the Order entered on 28 April
and the Corrected Order entered on 3 May 2016 by Judge J.
Thomas Davis in Buncombe County Superior Court. No. 15 SP 16
Deutsch & Gottschalk, P.A., by Tikkun A.S. Gottschalk,
for Petitioners-Appellees Janet H. Solesbee and Carl
Westall, Gray & Connolly, P.A., by J. Wiley Westall, III,
for Respondents-Appellees Cheryl H. Brown, Roger Brown,
Gwenda H. Angel, and Wesley Angel.
Parker, Warren, Anderson, Payne & McClellan, P.A., by
Robert B. Long, Jr., for Respondents-Appellants Lisa H.
Debruhl and J. Delaine Debruhl.
Debruhls appeal from an order requiring the partition by sale
of all parcels at issue in this action. On appeal, the
Debruhls argue that the trial court erred in finding and
concluding that: (1) a partial physical partition of the
lands cannot be made without causing substantial injury to
one or more of the interested parties; and (2) Janet H.
Solesbee and Carl Solesbee (collectively, "the
Solesbees"), who sought a partition by sale of the real
property, could later pursue an in-kind allotment if the
trial court decided against ordering the sale of the parcels,
thereby complicating the partial actual allotment sought by
the Debruhls. After careful review, we reverse the trial
court's decision and remand the case so that the trial
court can make the specific findings of fact required by law
and then re-examine its conclusions of law.
H. Solesbee, Cheryl H. Brown, Gwenda H. Angel, and Lisa H.
Debruhl are sisters (collectively, "the Sisters").
Each sister inherited a one-fourth, undivided interest in the
real property at issue, located in Asheville, as tenants in
common from their father, Walter Honeycutt. The property is
comprised of multiple parcels, which were designated as
Parcel One, Parcel Two, and Parcel Three by the trial court
(collectively, "the Parcels"). The Solesbees and
the Debruhls individually own and reside on real property
adjacent to Parcels Two and Three. The Parcels and the
residences are all zoned for residential use.
January 2015, the Solesbees petitioned for a partition by
sale of the Parcels. The Browns and Angels filed a response to
the petition, and they also admitted that a sale was
necessary. The Debruhls filed a separate answer to the
petition, acknowledging that Parcel One should be sold but
also requesting an in-kind allotment of Parcels Two and Three
that adjoin their residential property.
December 2015, the Clerk of Buncombe County Superior Court
ordered the Parcels be sold by private sale. The Debruhls
timely appealed to the Superior Court. On 3 May 2016, the
trial court issued its Corrected Order, in which it concluded
that: (1) an actual partition of the lands could not be made
without causing substantial injury; and (2) the fair market
value of each cotenant's share in an actual partition
would be materially less than the amount each cotenant would
receive from the sale of the whole.
trial court arrived at this conclusion after comparing the
fair market value of Parcels Two and Three to one-fourth of
the combined fair market value of all of the Parcels as a
whole. Since the trial court found that "[i]t is
inevitable" that the Parcels will be rezoned for
commercial use, which would bring "a far higher value
for the property than residential use, " it assigned a
range of fair market values for each Parcel as opposed to a
specific value. Specifically, the trial court found that,
since "Parcel One is currently zoned for residential
use, but could likely be re-zoned for commercial use, "
the "fair and reasonable market value of Parcel One . .
. [was somewhere between] $190, 000.00 to $300, 000.00."
For Parcel Two, the trial court found that "[i]n light
of the nature of Parcel Two, including being encumbered by
numerous sewer line and road easements, extremely steep and
rocky terrain, flood plains, and erratic shape, there is
practically no useable land on Parcel Two, except as
presently being used, " making the "fair and
reasonable market value of Parcel Two . . . $19, 550 to $20,
000." Finally, the trial court found that there was
"practically no or very limited useable land on Parcel
[Three], " making the "fair and reasonable market
value . . . $16, 800.00 to $30, 000.00."
trial court then found that the combined value of Parcels Two
and Three was $36, 350 to $50, 000, and that the fair market
value of all the Parcels was "$225, 350 to $350, 000,
with a one-fourth interest in all the Parcels being $56,
337.50 to $87, 500." Accordingly, the trial court found that
"[t]he fair market value of Parcels Two and Three
combined ($36, 500 to $50, 000) is substantially less than
one-fourth of the total fair market value ($56, 337.50 to
determining that actual partition would result in substantial
injury, the trial court considered these values as well as:
(1) the personal value of the Parcels to the parties; (2) the
difficulty of physical partition; and (3) the "highest
and best use" of the Parcels. Based on these
considerations, the trial court ordered that all of the
Parcels be sold together as one, or, alternatively, that
Parcel One be sold individually and Parcels Two and Three be
sold together, whichever would bring the highest sale price.
The Debruhls timely appealed from the Corrected Order.
Standard of Review
the trial court sits without a jury:
[T]he standard of review on appeal is whether there was
competent evidence to support the trial court's findings
of fact and whether its conclusions of law were proper in
light of such facts. Findings of fact by the trial court in a
non-jury trial have the force and effect of a jury verdict
and are conclusive on appeal if there is evidence to support