Ballard v. Dornic, 15–CV–895.

Decision Date28 June 2016
Docket NumberNo. 15–CV–895.,15–CV–895.
Citation140 A.3d 1147
PartiesGlenn BALLARD, Appellant, v. Matthew DORNIC, Appellee.
CourtD.C. Court of Appeals

Ryan S. Spiegel, Washington, DC, for appellant.

James N. Markels, Washington, DC, for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior Judge.

THOMPSON

, Associate Judge:

This litigation commenced when appellee Matthew Dornic filed a complaint for partition-by-sale of two properties that are owned by Mr. Dornic and appellant Glenn Ballard as joint tenants: a single family home located at 3134 Dumbarton Street, N.W. (“the Dumbarton Property”), where Mr. Ballard resides, and a condominium unit located at 1767 U Street N.W., Unit 1 (“the U Street Property”). Mr. Ballard seeks review of the trial court's ruling granting Mr. Dornic's motion for partial summary judgment on his claim for partition-by-sale and ordering the parties to confer about who might be appointed as trustee to sell the properties.1 We affirm.

I.

In granting Mr. Dornic's prayer for partition-by-sale, Superior Court Judge John Campbell relied on the well-established, general rule that [a] cotenant enjoys a unilateral right of partition.”2 Rejecting Mr. Ballard's argument that Mr. Dornic had voluntarily limited his right to partition, Judge Campbell concluded that the only question before the court was whether the partition would be in kind or by sale.

In his first argument on appeal, Mr. Ballard asserts that Judge Campbell erred (1) in assuming that an individual owning property as a cotenant will lack the right to demand partition only if the cotenants hold the property as tenants by the entireties and (2) in rejecting Mr. Ballard's claim that Mr. Dornic limited his right to partition by failing to pay his fair share of the mortgages and other expenses associated with each of the properties. Our review of the trial court's legal conclusions is de novo, and we review factual findings under a clearly erroneous standard. See Arthur, 857 A.2d at 490

.

Our case law recognizes that a cotenant's unilateral “right to partition, while normally an integral part of the cotenancy form of ownership, is like most property rights subject to possible limitation by voluntary act of the parties[,] Carter, 516 A.2d at 921

, such as through the cotenants' agreement that one of the cotenants is to have exclusive use and possession of the property for some limited time period. Id. at 921 n. 10 ; see also

Robinson v. Evans, 554 A.2d 332, 338 (D.C.1989) (Carter establishes that the parties had the power to restrict their own right to seek partition [.]). We therefore agree with Mr. Ballard that the fact that an estate is not a tenancy by the entireties does not negate the possibility that one of the cotenants has, by a voluntarily act, restricted his right to seek partition. But our agreement on this point does not help Mr. Ballard's cause, because he cites no authority, and we know of none, for his novel argument that a joint tenant voluntarily restricts his right to partition by virtue of the fact—as Mr. Ballard avers is the case with Mr. Dornic—that he has paid a less-than-equal or relatively small share of the expenses related to the property. Nor does the summary judgment record reveal any evidence that either of the parties “expressed their intent not to partition.” Id. (emphasis in original). We therefore conclude that Judge Campbell did not err in rejecting Mr. Ballard's theory that Mr. Dornic limited his right to partition by a voluntary act.

II.

As his basis for granting partial summary judgment to Mr. Dornic, Judge Campbell determined that a partition-by-sale is appropriate because it “appears that the propert[ies] can not [sic] be divided without loss or injury to the parties interested[.] D.C.Code § 16–2901(a)

(2012 Repl.). Mr. Ballard argues that Judge Campbell erred in finding, on disputed facts and on an incomplete factual record, that the property cannot be divided without loss or injury to the parties, and by concluding without analysis that a partition-by-sale is necessary. We review the grant of partial summary judgment by applying the same standard Judge Campbell was required to apply: “If, viewing the record in the light most favorable to the non-moving party, we conclude that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, the judgment of the trial court will be affirmed.” Hospitality Temps Corp. v. District of Columbia, 926 A.2d 131, 134 (D.C.2007).

Actions for partition are governed by D.C.Code § 16–2901(a)

, which provides that “when it appears that the property can not [sic] be divided without loss or injury to the parties interested, the court may decree a sale thereof and a division of the money arising from the sale among the parties, according to their respective rights.” The general test of whether a partition-in-kind—a physical division of the property according to the cotenants' shares—would result in loss or injury to the owners is whether the property can be divided “without materially impairing its value or the value of an owner's interest in it.” 59A Am. Jur. 2d Partition § 121 (2016).

In this case, no one contests that the properties in question—a single family home and condominium—cannot be physically divided without diminishing their value. Mr. Ballard contends, however, that a partition-in-kind does not necessarily require that a property be physically severed into separate parts. He argues that each of the properties can and should be partitioned in kind by awarding each in its totality to him. Mr. Ballard appears to be correct that if a property is subject to partition, a fortiorari it can be awarded in part, or in its totality, to one tenant depending upon the facts, evidence, etc., in the case.” Hipp v. Hipp, 191 F.Supp. 299, 301 (D.D.C.1960)

(citing Hogan v. Hogan, 250 F.2d 412 (D.C.Cir.1957) ).3 But again, the principle on which Mr. Ballard relies does not help him, because the summary judgment record does not support an award of the properties to Mr. Ballard alone. That is so even if we take as true the factual allegations to which Mr. Ballard swore in his “Verified First Amended Answer and Counterclaims” and on which he relies in his briefs on appeal.

[I]n a suit for partition, the court must first determine the respective shares which the parties hold in the property, before the property can be divided.”

Sebold v. Sebold, 444 F.2d 864, 872 (D.C.Cir.1971)

.4 [A] presumption arises that upon dissolution of [a] joint tenancy during the lives of the cotenants, each is entitled to an equal share of the proceeds.” Id.; see also 20 Am. Jur. 2d Cotenancy and Joint Ownership § 116 (“A rebuttable presumption of equal shares applies as well to property held in joint tenancy[.]). However, that presumption “is subject to rebuttal ... and does not prevent proof from being introduced that the respective holdings and interests of the parties are unequal.” Sebold, 444 F.2d at 872. The presumption that joint tenants own an equal share of a property can be rebutted by “evidence showing the source of the actual cash outlay at the time of acquisition, the intent of the cotenant creating the joint tenancy to make a gift of the half-interest to the other cotenant, unequal contribution by way of money or services, unequal expenditures in improving the property or freeing it from encumbrances and clouds, or other evidence raising inferences contrary to the idea of equal interest in the joint estate.” Id.5

The foregoing case law addresses the effect the trial court may give to cotenants' unequal contributions when determining their respective shares in a property upon partition. In addition, the partition statute prescribes the effect that may be given to cotenants' unequal receipt of rents from a jointly owned property. Specifically, D.C.Code § 16–2901(c)

addresses the situation [i]n a case of partition, when a tenant in common has received the rents and profits of the property to his own use[.] It provides that such a cotenant “may be required to account to his cotenants for their respective shares of the rents and profits” and that [a]mounts found to be due on the accounting may be charged against the share of the party owing them in the property, or its proceeds in case of sale.”

Mr. Ballard's opposition to Mr. Dornic's motion for partial summary judgment incorporated by reference the averments in Mr. Ballard's “Verified First Amended Answer and Counterclaims,” including Mr. Ballard's allegation that Mr. Dornic paid a total of only $17,225.53 toward the purchase price and mortgage service for first and second mortgages on the Dumbarton property, while Mr. Ballard paid a total of over $586,662. Regarding the U Street property, Mr. Ballard averred in his counterclaims that he has made mortgage payments totaling about $147,000, while Mr. Dornic has made payments totaling about $177,000. He also averred that Mr. Dornic has collected rents of $210,000 from the U Street property and not shared them with Mr. Ballard. As to each of the properties, Mr. Ballard contends that the amount Mr. Dornic owes him in order to equalize mortgage-payment contributions and/or to pay him his share of the rents collected is more than Mr. Dornic would realize from his half of the proceeds of a sale of the property. For that reason, Mr. Ballard contends, a sale of the property would leave Mr. Dornic with accrued liabilities to Mr. Ballard still hanging over his head, while a partition-in-kind, awarding 100% of the property to Mr. Ballard (upon Mr. Ballard's agreement to refinance the existing mortgages so that they are solely his responsibility) would at least arguably leave Mr. Dornic better off than he is now (meaning, Mr. Ballard implies, that it is a partition-by-sale, not a partition-in-kind, that would cause “loss or injury to the parties interested [.] D.C.Code § 16–2901(a)

).

Mr. Ballard asserts...

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