                             NO. COA13-1426

                    NORTH CAROLINA COURT OF APPEALS

                         Filed: 17 June 2014


TOMMY M. WHITESELL,
     Petitioner-Appellee,

    v.                                Rockingham County
                                      No. 12 SP 597
CATHY B. BARNWELL
     Respondent-Appellant.


    Appeal by Respondent from order entered 19 August 2013 by

Judge A. Robinson Hassell in Superior Court, Rockingham County.

Heard in the Court of Appeals 20 May 2014.


    Rossabi Black Slaughter, P.A., by T. Keith Black and Gavin
    J. Reardon, for Petitioner-Appellee.

    Forrester   Law  Firm,      by   Richard    W.     Forrester,      for
    Respondent-Appellant.


    McGEE, Judge.


    Tommy   M.   Whitesell   (“Petitioner”)   and    Cathy   B.   Barnwell

(“Respondent”) each own a one-half leasehold interest in Lot No.

47 Belews Lake, Rockingham County and a one-half interest in

personal property consisting of the following: a Park Model Home

(“the mobile home”) on the lot and “all personal property and

improvements contained” on the lot.      At the time Petitioner and

Respondent acquired the leasehold interest and the mobile home,
                                            -2-
they were in a dating relationship.                  They entered into a written

agreement (the “Agreement”) around April 2000, that provided for

the disposition of “the property located at Belews Lake” should

either party die or should either party “desire to sell their

individual ownership[.]”

    Petitioner, on 29 November 2012, filed a petition for sale

of the “leasing interest” and the personal property.                         The matter

came on for hearing on 29 July 2013.                     In an order entered 19

August   2013,     the    trial     court     found     that    “a    dispute    exists

between the Parties as to whether the Agreement contemplates

both the Leasehold Interest and the Personal Property.”                              The

trial court further found that the parties “have experienced

substantial    difficulty         in   attempting       to    share    the    Leasehold

Interest     and       Personal        Property,        resulting      in      numerous

disagreements relating to maintenance, storage of boats on off

weekends and reimbursement of expenses.”

    The     trial    court    was      “not       persuaded    that    the    Agreement

reflects or is sufficient evidence that the Parties intended to

forever waive or abandon their respective rights to partition

their    Leasehold       Interest      in     the    Property    or    the     Personal

Property.”       The     trial    court       ordered    a    public    sale    of   the

leasehold     interest      and     the     personal     property.           Respondent

appeals.
                                       -3-
                            I. Standard of Review

     It is well settled that “when the trial court sits 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.”     Lyons-Hart v. Hart, 205 N.C. App. 232, 235, 695 S.E.2d

818, 821 (2010).     “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.”         Id.     The “‘determination as to whether 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.’”

Id. at 236, 695 S.E.2d at 821 (citation omitted).

                                   II. Analysis

     Respondent argues that the trial court erred in ordering a

sale.     Respondent makes several sub-arguments in support of this

contention.

                                   A. Estoppel

     First,    Respondent     contends       Petitioner     “was    estopped   by

contract    from   partitioning.”          For   support,    Respondent      cites

Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966).                    In
                                         -4-
Properties, the agreement did not contain an express stipulation

that a party shall not partition the property.                      Id. at 20, 149

S.E.2d at 558.         However, our Supreme Court observed that it was

apparent “from the instrument itself and from the circumstances

surrounding     its     execution   that       neither      party   considered       the

possibility of partition during the life of Mrs. Cox.”                       Id.

       By contrast, in the present case, the trial court found

that a dispute existed as to whether the agreement contemplated

both     the    leasehold    interest          and    the     personal       property.

Furthermore,      the    trial   court     was       “not    persuaded      that    the

Agreement reflects or is sufficient evidence that the Parties

intended to forever waive or abandon their respective rights to

partition      their    Leasehold      Interest      in     the   Property    or     the

Personal Property.”          Respondent does not challenge the above

findings of fact on appeal as unsupported by competent evidence.

       Rather, Respondent contends that the trial court, “after

finding that an agreement existed, surely erred in assigning its

own temporal interpretation to the [A]greement.”                        To the extent

this statement challenges the trial court’s finding of fact,

Respondent     nevertheless      has    failed       to   show    the    trial     court

erred.    There is no indication in the trial court’s order that

it based its finding on the passage of time.                      Rather, the trial

court based its finding on the language of the Agreement, which
                                        -5-
does    not    contain     any   express   stipulation        as   to    partition.

Respondent has not shown error on this basis.

                                    B. Injury

       Respondent next contends Petitioner will not suffer either

injury or       substantial injury.           To the extent this statement

constitutes an argument that the trial court erred in making

finding of fact 9 (“It is impossible to divide the Leasehold

Interest or the Personal Property without substantial injury to

at   least     one   of    the   Parties.”),        Respondent     has   failed    to

demonstrate that the trial court erred on this basis.                         “If a

division of personal property owned by any persons as tenants in

common, or joint tenants, cannot be had without injury to some

of     the    parties     interested,   and     a    sale    thereof     is   deemed

necessary, the court shall order a sale to be made[.]”                           N.C.

Gen. Stat. § 46-44 (2013).              Respondent’s argument consists of

questioning the evidence of injury.

       However, Petitioner testified during the hearing before the

trial    court    that     the   alternating        weekly   schedule     that    the

parties had been using since 2002 “doesn’t work.”                      He testified

that the parties argued about the time frame and which duties

each should perform at the property.                    The parties disagreed

about picking up broken tree limbs, mowing the grass, the use of

the septic tank, the installation of a light near the lake,
                                         -6-
cable expenses, utility expenses, fertilizer, kitchen supplies,

and cleaning the property.               Petitioner further testified that

Respondent’s pontoon blocked his view of the lake and prevented

Petitioner from keeping his boat in the slip.                          This evidence

shows the obstacles Petitioner faces in selling his one-half

interest    in    the    leasehold,      mobile    home,     and      other    personal

property.       Petitioner would suffer injury by either being unable

to sell his one-half interest or having to accept a drastically

reduced price to attract a buyer who wishes to share a one-half

interest with Respondent.

       The evidence shows that a “division of personal property

owned by any persons as tenants in common, or joint tenants,

cannot     be    had     without     injury       to     some    of     the     parties

interested[.]”          N.C.G.S.    § 46-44.           Respondent     has     not   shown

error on this basis.

                                  C. Unclean Hands

       Respondent next contends that Petitioner has unclean hands.

“The   doctrine     of   clean     hands   is     an    equitable      defense      which

prevents    recovery      where    the   party     seeking      relief      comes    into

court with unclean hands.”               Ray v. Norris, 78 N.C. App. 379,

384, 337 S.E.2d 137, 141 (1985).                   However, within this sub-

section, Respondent cites no supporting authority and restates

earlier arguments relating to equity.                   Respondent contends that
                                       -7-
the fact Petitioner “assigned away a significant portion of the

personal property” by “titling it to himself and his new wife,”

is a material breach of the agreement.

      Respondent      does    not   challenge     the   trial   court’s   finding

that the agreement does not show that the parties intended to

waive   the   right    to    partition.      Respondent     has    presented   no

authority for such application of the doctrine of unclean hands

in this case, where Petitioner does not seek relief under the

agreement, but rather through statute.                  Relief “is not to be

denied because of general iniquitous conduct on the part of the

complainant[.]”       Id. at 384, 337 S.E.2d at 141.              Respondent has

failed to show error on this basis.

                               D. Essential Party

      Respondent also contends that Petitioner “has not named an

essential party, Carolina Marina, the leasing entity for Duke

Power.”   However, Respondent again cites no supporting authority

for this argument.           See N.C.R. App. P. 28(b)(6) (“The body of

the   argument   and    the    statement     of    applicable   standard(s)    of

review shall contain citations of the authorities upon which the

appellant relies.”).          Furthermore, Respondent does not describe

how this constitutes reversible error by the trial court.                   This

argument is therefore dismissed.                  See Hackos v. Goodman, ___

N.C. App. ___, ___, 745 S.E.2d 336, 341 (2013) (“Plaintiff cites
                                             -8-
no authority in support of this conclusory statement, and fails

to make any actual argument in her brief as required by N.C.R.

App.      P.    28(b)(6),     resulting       in    abandonment           of   Plaintiff’s

argument.”).

                          E. Findings and Conclusions

         Respondent next contends that the trial court’s order “is

wholly inadequate to support an order for the sale of property”

under the requirements of N.C. Gen. Stat. § 46-22(c).                                However,

N.C.G.S. § 46-22(c) does not govern this case.                            The applicable

statute is N.C. Gen. Stat. § 46-44, which provides that if “a

division of personal property owned by any persons as tenants in

common, or joint tenants, cannot be had without injury to some

of     the     parties    interested,        and    a    sale       thereof     is     deemed

necessary, the court shall order a sale[.]”                          N.C.G.S. § 46-44.

This Court has held that a “leasehold interest in real property

is   a    chattel      real   and    as    such    is    subject     to    rules      of   law

applicable to personal property.”                   First Southern Savings Bank

v. Tuton, 114 N.C. App. 805, 807-08, 443 S.E.2d 345, 346 (1994);

see also Real Estate Trust v. Debnam, 299 N.C. 510, 513, 263

S.E.2d       595,   597   (1980)     (“a    lease       is   a   species       of    personal

property”); Moche v. Leno, 227 N.C. 159, 160, 41 S.E.2d 369, 370

(1947) (“estates less than freehold, called ‘estate for years,’

however        long,   created      by    lease,   have      been    classified        almost
                               -9-
invariably as personal, and not real property”); Fleet National

Bank v. Raleigh Oaks Joint Venture, 117 N.C. App. 387, 391, 451

S.E.2d 325, 328 (1994).   Respondent has therefore failed to show

error on this basis.

    Affirmed.

    Judges HUNTER, Robert C. and ELMORE concur.
