Donnell-Smith v. McLean

• Decision Date: 05 March 2019
• Docket Number: No. COA18-613,COA18-613
• Parties: Sandra J. DONNELL-SMITH and Husband, Langston Smith, Petitioners, v. Russell E. MCLEAN, Unmarried, et als.; Respondents.
• Court: North Carolina Court of Appeals

264 N.C.App. 164

825 S.E.2d 672

Sandra J. DONNELL-SMITH and Husband, Langston Smith, Petitioners,

v.Russell E. MCLEAN, Unmarried, et als.; Respondents.

No. COA18-613

Court of Appeals of North Carolina.

Filed: March 5, 2019

Ryan McKaig, Raleigh, and Joseph L. Tart, Dunn, for petitioner-appellees.

Johnson and Johnson, P.A., by Rebecca J. Davidson, Lillington, for respondent-appellant Russell E. McLean.

TYSON, Judge.

Russell E. McLean ("Respondent") appeals from an order confirming the commissioners' report dividing partitioned property among the tenants in common. We affirm the superior court's order.

I. Background

At the time of her death in 1987, Mettie McLean owned approximately 102 acres in fee simple situate in Harnett County (the "property"). Petitioners filed a petition for partition on 28 April 2011, alleging the property was devised to ten of Mettie's children, in equal shares. Petitioners requested the clerk to divide the land in kind and to appoint commissioners to allocate the partitioned property in accordance with the individual interests.

In their amended petition for partition, Petitioners alleged Mettie had died intestate, as no original will was found, thus the property was distributed among all eleven children, in equal shares. Petitioners noted that since Mettie's death, "some of the undivided interest has been transferred by deed, devise, and intestate succession to other tenants in common." Petitioners requested the clerk of superior court to appoint a commissioner to sell approximately 1.66 acres of the property lying on the north side of McDougald Road, which was separate and divided from the rest of the acreage, and to apply the proceeds from that sale to the costs of the partition proceedings. Petitioners also requested for a guardian ad litem to be appointed to represent unknown potential claimants.

In their second amended petition for actual partition and partition by sale, Petitioners identified several additional parties to the proceedings and specified sixteen tenants in common, each owning various shares of the eleven interests. Petitioners again requested for the clerk to appoint a commissioner to sell the separate 1.66 acres tract to pay for the costs of the partition, and to appoint commissioners to divide the land in kind among the tenants in common.

On 11 August 2015, Petitioners filed a motion for sale of the 1.66 acres and a motion for partition in kind of the remaining 98.34 acres. After a hearing, the clerk of superior court filed a written order on 10 November 2015. The clerk found Mettie McLean had died intestate, leaving eleven equal shares of the property, which had been subject to further transfers since her death. The clerk concluded:

4. The listed tenants are entitled to the allotment of their interests in severalty as follows:

a. 4/22^nd to Sandra Donnell-Smith;

b. 7/22^nd to Russell Eugene McLean;

c. 4/22^nd to Florence Elaine McLean Lyons; and

d. 1/22^nd to Aaron Thomas.

5. Under N.C. Gen. Stat. § 46-13, the listed co-tenants, two or more tenants in common have requested the court to authorize the commissioners to allot their several shares to them in common, as one parcel, evidenced by their consent to the entry of this order. e. 2/22^nd in common, as one parcel, to William McLean, who will hold a 1/4^th interest in the share; Liddell R. McLean, Jr., who will hold a 1/2 interest in the share; and to Shirley McLean Carter, who will own a 1/4th interest in the share;

f. 2/22^nd in common, as one parcel, to David P. Raymond, Carol A. Williams, and Edward Raymond, who will hold said share in equal interests; and

g. 2/22^nd to Andree Lessey, Kevin Callaway, and Lisa Atkinson, in common, as one parcel, who will hold said share in equal interests.

The clerk also allowed for each party to submit special requests concerning the division of the property. Several of the parties submitted special requests, including Respondent. Respondent requested "as much open cropland as possible" and "[i]f feasible ... to join property of [his] sole surviving sibling." These requests to the commissioners were non-binding.

The commissioners were appointed, and, after consultations with a surveyor and a forestry expert, they filed their report on 31 March 2017. The report identified 2.27 acres, originally believed to be 1.66 acres, in the separated tract on the north side of McDougald Road to be sold, and the remainder of the property was apportioned in kind, based upon each party's interest in the property, in accordance with the clerk's conclusions and order. The proposed division of the property was indicated on plats and surveys attached to the report. Respondent was allocated the largest portion, which contained 36.64 acres and the greatest amount of open crop land, but did not adjoin the property line of the 4.27 acre share allotted to his sister.

Respondent filed an exception to the report on 10 April 2017. In his exception, Respondent alleged the report did not "divide land and timber in accordance with the respective interests of the tenants in common[.]" Following a hearing, the clerk confirmed the report on 9 August 2017.

Respondent appealed to the superior court. After a de novo hearing, the superior court confirmed the report. Respondent timely appealed.

II. Jurisdiction

An appeal of right lies with this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2017).

III. Issue

Respondent argues the superior court abused its discretion in confirming the report of the commissioners.

IV. Standard of Review

For a trial without a jury,

the 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 .

Lyons-Hart v. Hart , 205 N.C. App. 232, 235, 695 S.E.2d 818, 821 (2010) (citation omitted). "[W]hether a partition order and sale should [be] issue[d] is within the sole province and discretion of the trial judge and such determination will not be disturbed absent some error of law." Whatley v. Whatley , 126 N.C. App. 193, 194, 484 S.E.2d 420, 421 (1997) (citation omitted).

V. Analysis

A. Waiver of Review

Respondent first argues the superior court erred by not conducting the proper inquiry to support a partition by sale. Petitioners contend Respondent has waived this argument on appeal.

Any tenant in common has the right to petition for partition of the shared real estate. N.C. Gen. Stat. § 46-3 (2017). Upon petition, the clerk of superior court appoints three disinterested commissioners to divide the property. N.C. Gen. Stat. § 46-7 (2017). Any party may make an exception to the commissioners' report within ten days. N.C. Gen. Stat. § 46-19(a) (2017). The statute does not require an exception to be specific or state specific grounds. Jenkins v. Fox , 98 N.C. App. 224, 226, 390 S.E.2d 683, 684 (1990). If an exception is filed, "whether the report of the commissioners should be confirmed is for determination by the clerk and, upon appeal from his order, by the judge." Allen v. Allen , 258 N.C. 305, 307, 128 S.E.2d 385, 386 (1962) (emphasis omitted).

When a partition proceeding is appealed to the superior court, the court is not limited in its review to only the actions of the clerk.

Langley v. Langley , 236 N.C. 184, 186, 72 S.E.2d 235, 236 (1952). Rather, the court may "review the report in the light of the exceptions filed , hear evidence as to the alleged inequality of division, and render such judgment, within the limits provided by law, as [it] deemed proper under all the circumstances made to appear to him." Id. (emphasis supplied).

Though Respondent was not required to state specific grounds for his exception, he did so. He took exception to the report for its purported failure to divide the property and timber "in accordance with the respective interests of the tenants in common." At the hearing before the clerk, Respondent testified he excepted to the division "because the tract allotted to him fails to adjoin the land he owned outside the division." Respondent presented no evidence concerning, or to dispute, the allocation or value of the property or timber. After considering "Respondent's testimony, the documents on file, and the arguments of the attorneys," the clerk found the division to be fair and confirmed the report.

The clerk, and later the superior court, considered whether the commissioners' report should be confirmed in light of the noted exception. See Langley , 236 N.C. at 186, 72 S.E.2d at 236. Respondent expressly excepted and sought review of the purported inequality of the division of the property and may not swap his position on appeal. See Cushman v. Cushman , 244 N.C. App. 555, 562, 781 S.E.2d 499, 504 (2016). Respondent's argument is dismissed.

B. Abuse of Discretion

1. Partial Sale

Even if Respondent had preserved his argument on partial sale, we find no abuse of discretion in the superior court's order.

Under Chapter 46 of the General Statutes, any "actual partition may be made of a part of the land sought to be partitioned and a sale of the remainder; or a part only of any land held by tenants in common, or joint tenants, may be partitioned and the remainder held in cotenancy." N.C. Gen. Stat. § 46-16 (2017).

In Brooks v. Austin , a widow had signed an antenuptial agreement, which entitled her to a child's share of her husband's estate, in lieu of dowager allowance. 95 N.C. 474, 475 (1886). Heirs of the decedent petitioned for partition by sale of the land, with the proceeds to be divided among the tenants in common. Id. The issue on appeal was whether this antenuptial agreement was binding. Id. at 477. Our Supreme Court affirmed the widow's waiver of dowager. Id. The Supreme Court analyzed the proper partition of the...