Foley v. Wheelock

• Decision Date: 30 May 2008
• Docket Number: No. 2007–249.,2007–249.
• Citation: 950 A.2d 178,157 N.H. 329
• Court: New Hampshire Supreme Court
• Parties: Richard N. FOLEY v. Timothy S. WHEELOCK.

157 N.H. 329

950 A.2d 178

Richard N. FOLEY

v.Timothy S. WHEELOCK.

No. 2007–249.

Supreme Court of New Hampshire.

Argued: March 20, 2008.

Opinion Issued: May 30, 2008.

Richard N. Foley, by brief and orally, pro se.

Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (William G. Scott on the brief and orally), for the respondent.

BRODERICK, C.J.

In this action to partition real property, the petitioner, Richard N. Foley, appeals an order of the Rockingham County Probate Court (O'Neill, J.) allowing the respondent, Timothy S. Wheelock, to purchase the subject property after an unsuccessful public auction at a lower price than the court-ordered reserve. Foley also challenges an order requiring him to subsidize Wheelock's rental of an off-site office during the pendency of the sale. We affirm.

I

The record reveals the following. In 1997, the parties purchased an office condominium in downtown Portsmouth as tenants-in-common for $75,000. They used the premises to house their respective law offices. In December 2005, as an apparent result of deteriorating relations between the parties, Foley filed a petition requesting a court-supervised partitioning of the condominium. See RSA 547–C:25 (2007). In March 2006, before the probate court acted upon the petition, Wheelock moved his office to another location.

In early June, following a hearing, the probate court granted the petition to partition. In so doing, it found "no cause to award one party more than one-half the equity in the unit," and that "[the parties] should both be afforded the opportunity to purchase the property." While Foley had asked to be allowed to purchase the condominium for $139,000, the court credited expert testimony presented by Wheelock that the fair market value of the property was $179,000. It entered the following order:

1. The parties may agree to a private auction ... with a reserve price of $159,000.

2. If the parties do not agree to a private auction, the property will be sold through a public auction. The parties may agree upon a reserve and method of sale for the public auction. If they cannot agree [upon a reserve price], the reserve will be $179,000 and the court will appoint a commissioner to sell the property at auction, the commissioner's fees to be paid equally by the parties out of the proceeds from the sale of the property.

3. After the property is sold ... the proceeds will be divided equally between the parties except that from [Foley's] one-half share, [Wheelock] will be paid $409.55 [for overdue utility bills] and $325 monthly from April 1, 2006 until the sale of the property, to be prorated as of the date of the sale.

The $325 figure referenced by the court represented one-half of Wheelock's monthly rent at his new office space.

By September, the parties had not reached an agreement on the method of sale for the condominium. Consequently, the following month, the court ordered them to sell the condominium at public auction as contemplated by its June order. The court also appointed an auctioneer, who subsequently scheduled an auction for November 16 and took steps—such as advertising the unit—to prepare for the sale.

On November 1, however, Wheelock filed a "Motion to Compel Compliance," claiming that Foley had failed to pay certain fees to the auctioneer, removed a sign outside the unit advertising the auction, and had generally interfered with efforts to facilitate a "commercially reasonable sale" of the property. During a telephonic hearing on November 3, Foley represented to the court that he was unable to pay the auctioneer's fee because he had just $400 in the bank. In its order on Wheelock's motion, the trial court ruled that Foley's share of the auctioneer's fee could be deducted from his share of the proceeds of the sale. The court further ordered Foley to ensure the unit was clean and free of clutter and to return the sign advertising the auction. Wheelock was awarded requested attorney's fees.

On November 16, five qualified bidders participated in the public auction, which was held outside the unit. Foley, who represents in his brief that he "was unable to obtain a loan sufficient to enable him to buy the property for [the reserve price] of $179,000[ ]," did not participate. The high bid at the auction of $140,000 was made by Wheelock. Because this bid was below the court-ordered reserve, the auction concluded without the condominium having been sold.

Wheelock subsequently filed a motion to modify the probate court's original order on the petition to partition, seeking a waiver of the $179,000 reserve price and requesting that the court accept his bid to purchase the unit for $140,000. The probate court held a hearing on the motion in March 2007. Wheelock contended that the results of the auction revealed the actual fair market value of the condominium and that the court should let him acquire it for $140,000. Foley objected, arguing that he had relied upon the reserve price to his detriment when seeking financing. He also represented to the court that a friend of his was willing to loan him $145,000 to purchase the unit and that he could produce the funds within five days. Foley agreed, however, that if he could not do so, the property could be sold to Wheelock for $140,000. Notwithstanding his representation that he would be able to purchase the property, Foley was, at that time, two months in arrears on his mortgage payments, and admitted that he was unable to secure financing from a bank for an amount greater than Wheelock's bid of $140,000.

On March 8, the probate court, apparently discrediting Foley's representation that he could acquire $145,000 from his friend, made the following findings:

Based upon the evidence offered, the court finds that the property was adequately advertised for sale by auction on November 16, 2006. The court further finds that [Foley] had more than sufficient time between the court order of June 1, 2006 and the date of the auction to seek financing so that he could bid on the property, but failed to do so. [Wheelock] was able to prepare himself for bidding at the auction and did so. The result of the advertising and public auction yielded a high bid of $140,000 with the next highest bid being $130,000. On that basis it is reasonable to conclude that the fair market value of the property at the time of the auction was $140,000 and to require further auctioning or listing of the property would cause unnecessary cost and delay to the parties.

The court consequently entered an order stating that the reserve price "set forth in the Court Order of June 1, 2006 is waived and ... Wheelock is allowed to purchase the property for $140,000." This appeal followed.

II

Foley first challenges the portion of the probate court's June 2006 order requiring him to pay one-half of Wheelock's monthly rent for his new office space until their condominium was sold. Wheelock, in turn, challenges the timeliness of Foley's appeal of this issue. See Sup.Ct. R. 7(1)(A). However, we assume, without deciding, that Foley's appeal was timely. Cf. In re Estate of Heald, 147 N.H. 280, 281–82, 786 A.2d 852 (2001) (order which terminates matter generally constitutes final decision ripe for appeal). We thus turn to the merits of Foley's claim.

In partition proceedings, the probate court sits as a court of equity. RSA 547–C:25 ; see also RSA 547–C:30 (2007) (partition proceedings "remedial in nature"; provisions of RSA chapter 547–C to be "liberally construed in favor of the exercise of broad equitable jurisdiction"). "The propriety of affording equitable relief in a particular case rests in the sound discretion of the trial court...." Decker v. Decker, 139 N.H. 588, 590, 660 A.2d 1112 (1995) (quotation omitted). We, in turn, review an equitable order for an unsustainable exercise of discretion. Id.; Blagbrough Family Realty Trust v. A & T Forest Prods., 155 N.H. 29, 46, 917 A.2d 1221 (2007). The party asserting that a trial court order is unsustainable must demonstrate that the ruling was unreasonable or untenable to the prejudice of his case. Poland v. Twomey, 156 N.H. 412, 415–16, 937 A.2d 934 (2007).

"An action for partition calls upon the court to exercise its equity powers and consider the special circumstances of the case[ ] in order to achieve complete justice." DeLucca v. DeLucca, 152 N.H. 100, 102, 871 A.2d 72 (2005). RSA 547–C:29 (2007) provides:

In entering its decree [on a petition to partition] the court may, in its discretion, award or assign the property or its proceeds on sale as a whole or in such portions as may be fair and equitable. In exercising its discretion in determining what is fair and equitable in a case before it, the court may consider: the direct or indirect actions and contributions of the parties to the acquisition, maintenance, repair, [and] preservation ... of the property; the duration of the occupancy and nature of the use made of the property by the parties; ... waste or other detriment caused to the property by the actions or inactions of the parties; ... and any other factors the court deems relevant.

Foley contends that when crafting its partition decree, the probate court had "no basis in fact or law to assign half of [Wheelock's] new rent to be paid from the proceeds of [Foley's] half of the sale of the property." We disagree.

The record shows that Wheelock vacated the parties' condominium approximately eight months before the unit was auctioned, and one year before the court issued an order enabling him to purchase it. During that time, he continued to pay one-half of the mortgage on the property and utility bills. Moreover, the trial court had ample evidence before it to conclude that Foley's behavior necessitated Wheelock's relocation of his law practice. As Wheelock testified:

There was my concern with ... Mr. Foley living in Maine and registering [his] motor vehicles to the office or my suspicion that that had occurred....

There were just—Mr. Foley and I are complete opposites.

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