Barrow v. Myhand

• Decision Date: 12 February 2016
• Docket Number: 2140761.
• Parties: Larry BARROW v. Taurus LeDavid MYHAND.
• Court: Alabama Court of Civil Appeals

205 So.3d 1261

Larry BARROW

v.Taurus LeDavid MYHAND.

2140761.

Court of Civil Appeals of Alabama.

Feb. 12, 2016.

Rehearing Denied April 8, 2016.

Larry D. Barrow, pro se.

Thad Yancy, Jr., Troy, for appellee.

THOMAS, Judge.

This appeal involves a one-acre parcel of property ("the property") located in Pike County. The record indicates that Verneaser Barrow owned the property at the time that she died intestate in 1997. Upon her death, each of Verneaser's six children inherited a 1/6 interest in the property; however, since 1997, two of Verneaser's children have died, and each deceased child's 1/6 interest in the property went to his or her respective heirs. Larry Barrow, Mary Baez, Ethel Thomas, and Dorothy Smith are Verneaser's remaining living children. Taurus LeDavid Myhand is the son of one of Verneaser's deceased children; the record indicates that he inherited a 1/18 interest in the property.

On July 16, 2013, Taurus filed a complaint for a sale for division of the property, pursuant to § 35–6–20 through § 35–6–25, Ala.Code 1975, in the Pike Circuit Court ("the trial court"). The complaint included a legal description of the property; the complaint also indicated that the property was owned by 13 tenants in common, listed the name of each cotenant, and specified each cotenant's ownership interest. The complaint further stated that the property could not be equitably divided. Taurus also filed a notice with the trial court indicating that he wished to purchase the interests of the other cotenants pursuant to § 35–6–100 et seq., Ala.Code 1975. In August 2013, Larry, Mary, and Dorothy each filed pro se motions in opposition to the proposed sale. The record also contains a letter from Ethel stating that, although she agreed that the property should be sold, she "[did] not feel the land should be sold under the conditions suggested in the [complaint]" and that she wanted the property "to be sold privately."¹

Taurus filed a motion on January 17, 2014, to serve notice by publication on six of the cotenants, which the trial court granted. On April 16, 2014, Taurus filed a motion for a default judgment against the cotenants who had failed to respond to the complaint and specifically noted that Larry, Mary, Dorothy, and Ethel were the only cotenants who had responded; the motion also sought the appointment of a guardian ad litem for three minor cotenants. Also on April 16, 2014, Taurus filed a motion to set the cause for a hearing; the trial court entered an order on April 17, 2014, scheduling a hearing on June 30, 2014, and appointing a guardian ad litem for the three minors. Mary and Larry each filed a "notice/motion to allow cotenant to purchase outstanding interests," citing § 35–6–100 et seq., Ala.Code 1975, on June 16, 2014, and June 18, 2014, respectively.

After the hearing on June 30, 2014, the trial court entered an order on July 1, 2014. In its order, the trial court determined that the property could not be equitably divided or partitioned, appointed Mike Lowery to complete an appraisal of the property, and ordered Lowery to submit the appraisal report to the trial court within 30 days. The trial court's order further stated

"[t]hat a proper notice & motion has been filed with the court pursuant to 35–6–100 et seq. of the Code of Alabama to request an appraisal of the property and offering to purchase the subject property at the appraised value."

The trial court also entered an order permitting an entry of default against the cotenants who had failed to respond to the complaint.

Lowery submitted the appraisal report, valuing the property at $7,000, to the trial court on July 21, 2014. On July 28, 2014, Larry filed a motion seeking to introduce evidence indicating that the property could be physically divided and, in the alternative, seeking permission to file an interlocutory appeal of the trial court's order determining that the property could not be equitably divided or partitioned. The trial court denied Larry's motion on August 1, 2014. The record indicates that Taurus deposited $7,000 into the trial court on August 11, 2014, that the trial court entered an order on December 3, 2014, confirming that the appraisal had been filed and that Taurus had paid the $7,000 appraisal amount, and that Mary and Larry each deposited $388.89, or 1/18 of the total value of the property, on or about December 29, 2014. After a hearing on April 29, 2015, the trial court entered a judgment on May 12, 2015, finding that Taurus was the only party that had timely deposited the full amount of the appraised value of the property pursuant to § 35–6–102, Ala.Code 1975, and ordering, in pertinent part, that the property was to be conveyed to Taurus, that Lowery, the guardian ad litem, and the attorney representing Taurus would be paid from the proceeds of the sale, and that the remaining proceeds would be divided among the cotenants according to their respective ownership interests in the property.

Larry filed a notice of appeal to this court on June 15, 2015, seeking our review of whether the trial court had erred by determining that the property could not be partitioned, whether the trial court had misapplied § 35–6–100, Ala.Code 1975, whether he had been deprived of due process, and whether the trial court had erred by applying the common-fund theory.

"Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. ‘ "When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error." ’ Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996) )."

Kennedy v. Boles Inv., Inc., 53 So.3d 60, 67–68 (Ala.2010).

Section 35–6–100 may be invoked only in an action for a sale for division; therefore, we first address Larry's argument that the trial court erred by determining that the property could not be partitioned. It was undisputed that the property consists of approximately 1 acre, that a house is situated on the property, and that there are 13 cotenants whose ownership interests in the property range from 1/6 to 1/108. In English v. Brantley, 361 So.2d 549, 552 (Ala.1978), our supreme court explained:

"Although there is little evidence in the record concerning this issue, the fact there are 57 named defendants with interests varying from 1/6 to 1/396 in only 140 acres suggests that any partition in kind would be virtually impossible and therefore inequitable. Carden v. Vanderslice, 336 So.2d 1082 (Ala.1976). Additionally the record indicates the land varies in its use and quality. Part is timbered, part is under cultivation, and part has buildings on it."

(Footnote omitted.) The trial court's conclusion that the property in the present case, which is only 1 acre, could not be equitably divided among 13 cotenants with varying interests is in accordance with the guidance provided in English. Furthermore, because "[a] trial court's finding that land cannot be equitably partitioned is entitled to a presumption of correctness and will be overturned only if plainly or palpably erroneous," we find no error in the trial court's determination that the property cannot be equitably partitioned. Black v. Stimpson, 602 So.2d 368, 370 (Ala.1992) (citing Moore v. McNider, 551 So.2d 1028 (Ala.1989) ; Irons v. Le Sueur, 487 So.2d 1352 (Ala.1986) ; Ragland v. Walker, 411 So.2d 106 (Ala.1982) ; English v. Brantley, supra; Elliott v. Burch, 293 Ala. 244, 301 So.2d 557 (1974) ; and Meador v. Meador, 255 Ala. 688, 53 So.2d 546 (1951) ).

We next address the argument that the trial court failed to comply with § 35–6–100, which provides, in its entirety:

"Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not."

Our supreme court explained in Prince v. Hunter, 388 So.2d 546, 547 (Ala.1980), that

"[t]he statute ostensibly was drafted to protect joint owners from being divested of their property in a forced sale by allowing them the option to purchase the filing joint owner's interest. The operative words are ‘the court shall provide for the purchase [of the petitioner's interest] by the other joint owners....' (Emphasis added.) Ragland v. Walker, 387 So.2d 184 (Ala.1980). The statute in using the word ‘shall’ makes it mandatory, upon the filing of a petition for sale for division, that the court provide for the purchase of the petitioner's interest by the other joint owners if they notify the court of their interest in purchasing petitioner's interest at least ten days before the day set for trial."

As noted above, Mary and Larry filed their motions pursuant to § 35–6–100 on June 16, 2014, and June 18, 2014, respectively. The trial court did not hold a hearing on Taurus's petition until June 30, 2014; thus, both Mary and Larry had notified the trial court at least 10 days prior to the date set for the hearing of their interest in purchasing Taurus's interest in the property.

We note that, in Ragland v. Walker, 387 So.2d 184, 185 (Ala.1980), our supreme court stated that, although § 35–6–100 may be "inartfully drafted, the purpose of its provisions is readily discernible. The prior statutory scheme, as judicially interpreted (exemplified by English v. Brantley, 361 So.2d 549 (Ala.1978) ),...