Black v. Black
| Decision Date | 11 October 2007 |
| Docket Number | 2007-UP-462 |
| Parties | Dean E. Black, Respondent/Appellant, v. C. Raymond Black, Appellant/Respondent. v. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted October 1, 2007
Appeal From Oconee County James C. Williams, Jr., Circuit Court Judge
David F. Stoddard, of Anderson, for Appellant/Respondent.
John S. Nichols, of Columbia, for Respondent/Appellant
This action arose when Respondent/Appellant Dean E. Black (Dean) sought the partition of a parcel of land owned as tenants in common with Appellant/Respondent C. Raymond Black (Raymond). A Board of Commissioners, formed by agreement of the parties examined the parcel and issued a report determining it could be partitioned in kind. The trial court approved the report and ordered partition. Both parties filed objections. We affirm. [1]
On November 20, 2003, Dean E. Black brought this action seeking the partition and sale of a 57 acre parcel of land he and his brother, C. Raymond Black, owned as tenants in common. Raymond denied Dean's assertion that the property could not be partitioned in kind. Raymond counterclaimed for specific performance of an agreement he alleged Dean had made to sell Raymond his interest. Raymond additionally counterclaimed for the court to issue a writ of partition appoint commissioners, and divide the property in kind or, if the property could not be divided in kind, to sell the property to Raymond.
A July 27, 2004 hearing on the matter ended with a grant of continuance for Raymond, but the parties met in chambers for a status conference. They were instructed that the court usually orders partition in kind in cases involving acreage and, if the parties cannot agree on a division, a Board of Commissioners is appointed to effectuate the partition. The parties then produced an aerial photograph of the land marked with a recommended division line. The proposal allowed Raymond to receive the portion nearest his home on a lot he owned. Although Raymond initially agreed to this solution, he withdrew his approval when informed the court could not prohibit Dean from developing his portion of the acreage.
At a November 2004 hearing, the parties again advised the court they had reached an agreement. On December 29, 2004, a consent order was signed. Pursuant to the agreement and order, a Board of Commissioners (the Board) was formed to determine whether the property could be partitioned in kind. Dean and Raymond each named a surveyor and an appraiser to the Board, and the court named a chairperson. The agreement laid out numerous factors the Board was to consider in dividing the land into parcels of equal monetary value. The factors included a power line right-of-way and a boundary dispute with adjoining property owners. Dean would be awarded the parcel on Mud Creek Road (Tract A) and Raymond would receive the parcel fronting on Cedar Lane (Tract B). Mutual restraining orders prohibited the parties from interfering with each other and with the appraisers and surveyors. The parties would divide all costs of the Board. Raymond was required to erect a fence to maintain his animals. The parties would equally divide the 2003 and 2004 taxes which Dean had already paid. Raymond asked for a 100 foot wide buffer between an adjacent lot he already owned and the parcel awarded to Dean.
The Board issued its report finding partition in kind was feasible and Raymond filed several objections. On July 22 2005, a final hearing was held to consider the objections and for the court to issue its final order accepting or modifying the Board's report. Raymond was absent from the hearing though his wife appeared and testified to his objections. Dean entered his objections by testimony at this hearing.
The court approved the Board's report that the property could be partitioned in kind. In its order, the court stated the commissioners' fees were high but the situation required competent professionals. The court found the Board was careful and professional in their performance, but that Raymond had not cooperated with their attempts to enter the property's buildings for inspection. The trial court opined that Raymond could not now complain of the alleged deficiencies in the report caused by his own willful behavior. Finally, the court noted the report was similar to the resolution discussed by the parties at the July 27, 2004 status conference. While observing that division would produce a result less than exact, the judge determined any resulting difference was insignificant.
On appeal, Raymond asserted the Board's report erroneously calculated the acreage encumbered by the power line right-of-way on Tract B. He argued the buildings on Tract B appraised at $13, 000.00 in the report, were without value. Raymond alleged the trial court should have required the commissioners to personally inspect the buildings before accepting their valuation. Raymond argued the trial court erred in ordering the parties to pay the Board's fees without giving the parties an opportunity to be heard and without first finding the fees reasonable.
Dean argued the trial court erred in ordering partition in kind rather than ordering a public sale or partition by allotment vesting him with the property. He alleged Raymond's conduct rendered the procedure unfair and caused him injury. Dean complained the court erred in failing to consider partition by allotment and erred in refusing to hold Raymond in contempt for his failure to appear at the July 22, 2005 hearing.
A partition action is an equitable action and this Court may review the evidence to determine facts in accordance with our own view of the preponderance of the evidence. Zimmerman v. Marsh, 365 S.C. 383, 386, 618 S.E.2d 898, 900 (2005); Anderson v. Anderson, 299 S.C. 110, 382 S.E.2d 897 (1989); Doe v. Roe, 323 S.C. 445, 475 S.E.2d 783 (Ct. App. 1996). However, this broad scope of review does not require this court to disregard the findings at trial or ignore the fact that the trial judge was in a better position to assess the credibility of the witnesses. Laughon v. O'Braitis, 360 S.C. 520, 524-25, 602 S.E.2d 108, 110 (Ct. App. 2004); Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct. App. 1996). The partition action must be fair and equitable to all parties. Zimmerman, 365 S.C. at 386, 618 S.E.2d at 900; Pruitt v. Pruitt, 298 S.C. 411, 380 S.E.2d 862 (Ct. App. 1989).
When the court determines a partition cannot be fairly and equally made, the court may order a sale of the property and a division of the proceeds according to the rights of the parties. S.C. Code Ann. § 15-61-100 (2005); Zimmerman, 365 S.C. at 386, 618 S.E.2d at 900; see also S.C. Code Ann. § 15-61-50 (2005) (). Rule 71(f)(4), SCRCP instructs:
If it shall appear to the court that it will be for the benefit of all parties interested in the... property that it should be vested in one or more of the persons entitled to a portion of it, ... the person or persons, on the payment of the consideration money, shall be vested with the [property]. But if it shall appear to the court that it would be more for the interest of the parties interested in the... property that it should be sold and the proceeds of sale be divided among them, then the court shall direct a sale to be made upon such terms as the court shall deem right.
Our supreme court has previously held that partition in kind is favored when it can be fairly made without injury to the parties. Anderson v. Anderson, 299 S.C. 110, 114, 382 S.E.2d 897, 899 (1989); Smith v. Pearson, 210 S.C. 524, 43 S.E.2d 479 (1947); see also Cox v. Frierson, 315 S.C. 469, 451 S.E.2d 392 (1994) (). Our supreme court's decision in Few v. Few, 242 S.C. 433, 131 S.E.2d 248 (1963), holding that in kind partitions are appropriate only where they can be made fairly and without injury to the parties, did not alter the statutory preference for in kind partition.
Raymond argues the court erred in accepting the Board's report due to its erroneous measurement of the power line right-of-way and the valuation of Tract B's buildings. There is a cardinal principle of law that a trial court should not reject the return of a majority of the commissioners unless the division is clearly shown to be erroneous, unfair, unjust and inequitable.” Wilson v. McGuire, 320 S.C. 137, 142, 463 S.E.2d 614, 617 (Ct. App. 1995); see also Parrot v. Barrett, 81 S.C. 255, 260, 62 S.E. 241, 242 (1908) (); Aldrich v. Aldrich, 75 S.C. 369, 369, 55 S.E. 887, 888 (1906) ().
Raymond contended the Board erred in finding the power line right-of-way affected approximately two acres rather than five acres as recorded in the appraisal. However, he failed to challenge the report with clear evidence of the right-of-way's size. At the final hearing, which Raymond did not attend, his wife testified about the location of...
To continue reading
Request your trial