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Tarr v. Zalaznik

Court of Appeals of North Carolina

March 19, 2019

STEPHEN TARR, Petitioner,

          Heard in the Court of Appeals 14 January 2019.

          Appeal by Respondent from judgment entered 10 January 2018 by Judge James G. Bell in Superior Court, Cumberland County No. 16 SP 700.

          No brief submitted by Petitioner-Appellee.

          McCoy Wiggins PLLC, by Richard M. Wiggins, for Respondent-Appellant.


         I. Facts

         Stephen Tarr ("Petitioner") and Melissa Zalaznik ("Respondent") made a $245, 000.00 cash purchase of a lot with a house ((the "House") and, together with the lot, (the "Property")) in Fayetteville on 28 October 2013. Petitioner provided $145, 000.00 of the purchase price, and Respondent contributed $100, 000.00. The deed conveying the Property to Petitioner and Respondent noted that each was unmarried, and that the Property was being conveyed to them "as joint tenants with the right of survivorship[.]" Petitioner and Respondent lived together in the House as an unmarried couple for a few years. The relationship between Petitioner and Respondent deteriorated, and the record indicates that Petitioner moved out of the House in 2016. Respondent continued to reside in the House for more than a year after Petitioner's departure.

         Petitioner filed a "Petition to Partition" (the "petition") with the Clerk of Superior Court, Cumberland County (the "Clerk"), on 10 May 2016. See N.C. Gen. Stat. § 46-3 (2017) ("One or more persons claiming real estate as joint tenants or tenants in common . . . may have partition by petition to the superior court."). Petitioner stated that, although he "desire[d] to hold fifty percent . . . interest in [the Property] in severalty," he was requesting a partition by sale, pursuant to N.C. Gen. Stat. § 46-22(a)-arguing that actual partition of the Property could not "be made without injury to the parties . . . and it [wa]s necessary that the court order a sale for partition among the tenants in common." See N.C. Gen. Stat. § 46-22(a) (2017).

         Respondent answered the petition on 10 June 2016 and, though she did not specifically argue against a partition by sale, Respondent stated:

[A]lthough the parties to this action are tenants in common to the real estate described in the [p]etition [the Property], it is doubtful that at a public sale of the [Property it] could be sold at its fair market value and Respondent, pursuant to N.C. G.S. § 46-22.1, requests that the [trial court] order the parties mediate before an order is entered requiring a public sale of the [Property].

See N.C. Gen. Stat. § 46-22.1(b) (2017) ("When a partition sale is requested, the court or the clerk may order mediation before considering whether to order a sale."). Respondent further asked "[f]or such equitable relief as the [trial court] might deem proper to protect the interest of Respondent." The record does not include any evidence that mediation was ordered, and the petition was heard by the Clerk, who thereafter entered an order on 17 October 2016. The Clerk found as fact that both Petitioner and Respondent "believe[d] that an actual partition of the [P]roperty [could not] be made without substantial injury to the parties"; and that the Property "should be sold for partition as provided in N.C. G.S. § 46-28 and that a commissioner should be appointed by the [trial court] for that purpose." See N.C. Gen. Stat. § 46-28(a) (2017) ("The procedure for a partition sale shall be the same as is provided in Article 29A of Chapter 1 of the General Statutes, except as provided herein."). The Clerk appointed a commissioner (the "Commissioner") to conduct a sale of the Property, and ordered that "the proceeds, after payment of all costs, be distributed [to Petitioner and Respondent] as by law provided[.]" See N.C. Gen. Stat. §§ 46-7, 46-28, and 46-33 (2017)[1]

         The Commissioner filed a motion on 10 November 2016 to sell the Property, and the Clerk entered an order granting the motion to sell the Property on the same day. Neither the Commissioner's motion nor the Clerk's order specifically addressed how the proceeds of the sale would be divided. The Commissioner conducted a sale of the Property, and the highest offer was for a purchase price of $220, 000.00. The Clerk approved and confirmed the sale of the Property on 7 June 2017, and ordered the Commissioner to deliver title to the purchasers upon receipt of the purchase price. Neither party appealed the order of confirmation of sale and, therefore, it became a final order. N.C. Gen. Stat. § 46-28.1(f) (2017). After all costs had been deducted from the sales proceeds, $192, 323.87 remained in the Commissioner's account for distribution to Petitioner and Respondent.

         For reasons not made clear by the record, the net proceeds of the sale were not disbursed at the time the order of confirmation became final. N.C. G.S. § 46-33 ("At the time that the order of confirmation becomes final, the court shall secure to each tenant in common, or joint tenant, his ratable share in severalty of the proceeds of sale."). Approximately four months after the sale of the Property, Petitioner filed a "Supplemental Petition," on 5 October 2017, wherein he noted that "the proceeds received from the sale of the property did not equate for [Petitioner and Respondent] to recover their initial portion of the purchase price [.]" Therefore, Petitioner requested "that [the] net proceeds be divided and apportioned pursuant to [the] initial contribution" amounts provided by Petitioner and Respondent. Specifically, Petitioner requested that he receive fifty-nine percent of the net proceeds and that Respondent receive forty-one percent-in order to correspond with Petitioner's contribution of $145, 000.00 to the purchase of the Property compared with Respondent's $100, 000.00 contribution.

         The Clerk agreed with Petitioner that the net proceeds from the sale of the Property should be divided in proportion to the contributions made by Petitioner and Respondent toward the purchase of the Property. Therefore, the Clerk ordered a fifty-nine percent to forty-one percent distribution in favor or Petitioner. Respondent appealed, and the matter was heard in superior court. By judgment entered 10 January 2018, the trial court conducted a de novo review, agreed with the decision of the Clerk, and ordered the same fifty-nine percent to forty-one percent division of the net proceeds in Petitioner's favor. Respondent appeals.

         II. Standard of Review

         "An action for partition under [Chapter 46] is a special proceeding. When such action is appealed from the clerk to the superior court 'for any ground whatever the trial court has the authority to consider the matter de novo." Jenkins v. Fox, 98 N.C.App. 224, 226, 390 S.E.2d 683, 685 (1990) (citations omitted); see also N.C. Gen. Stat. § 46-1 (2017). When the trial court acts as the trier of fact:

[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 those findings. A trial court's conclusions of law, however, are reviewable de novo.
"[W]hether a partition order and sale should issue is within the sole province and discretion of the trial judge and such determination will not be disturbed ...

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