140 A.3d 1147 (D.C. 2016), 15-CV-895, Ballard v. Dornic

Docket Nº:15-CV-895
Citation:140 A.3d 1147
Opinion Judge:Thompson, Associate Judge :
Party Name:GLENN BALLARD, APPELLANT, v. MATTHEW DORNIC, APPELLEE
Attorney:Ryan S. Spiegel for appellant. James N. Markels for appellee.
Judge Panel:Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior Judge. Opinion by Associate Judge Phyllis D. Thompson.
Case Date:June 28, 2016
Court:Court of Appeals of Columbia District
 
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Page 1147

140 A.3d 1147 (D.C. 2016)

GLENN BALLARD, APPELLANT,

v.

MATTHEW DORNIC, APPELLEE

No. 15-CV-895

Court of Appeals of Columbia District

June 28, 2016

Submitted April 22, 2016 [*]

Page 1148

Appeal from the Superior Court of the District of Columbia. (CAR-2856-15). (Hon. John M. Campbell, Trial Judge).

Ryan S. Spiegel for appellant.

James N. Markels for appellee.

Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior Judge. Opinion by Associate Judge Phyllis D. Thompson.

OPINION

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Thompson, Associate Judge :

This litigation commenced when appellee Matthew Dornic filed a complaint for partition-by-sale of two properties that are

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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

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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...

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