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Solesbee v. Brown

Court of Appeals of North Carolina

September 19, 2017

JANET H. SOLESBEE and husband CARL SOLESBEE, Petitioners,
v.
CHERYL H. BROWN and husband ROGER BROWN, GWENDA H. ANGEL and husband WESLEY ANGEL, and LISA H. DEBRUHL and husband J. DELAINE DEBRUHL, Respondents.

          Heard in the Court of Appeals 3 May 2017.

         Appeal by Lisa H. Debruhl and J. Delaine Debruhl (collectively, "the Debruhls") from the Order entered on 28 April 2016[1] 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 Solesbee.

          Westall, Gray & Connolly, P.A., by J. Wiley Westall, III, for Respondents-Appellees Cheryl H. Brown, Roger Brown, Gwenda H. Angel, and Wesley Angel.

          Long, Parker, Warren, Anderson, Payne & McClellan, P.A., by Robert B. Long, Jr., for Respondents-Appellants Lisa H. Debruhl and J. Delaine Debruhl.

          MURPHY, JUDGE.

         The 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.

         I. Background

         Janet 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.

         On 9 January 2015, the Solesbees petitioned for a partition by sale of the Parcels.[2] 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.

         On 28 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.

         The 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."

         The 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."[3] Accordingly, the trial court found that "[t]he fair market value of Parcels Two and Three combined ($36, 500[4] to $50, 000) is substantially less than one-fourth of the total fair market value ($56, 337.50 to $87, 500)."

         In 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.

         II. Standard of Review

         When 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 ...

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