                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA16-1214

                                   Filed: 19 September 2017

Buncombe County, No. 15 SP 16

JANET H. SOLESBEE and husband CARL SOLESBEE, Petitioners,

               v.

CHERYL H. BROWN and husband ROGER BROWN, GWENDA H. ANGEL and
husband WESLEY ANGEL, and LISA H. DEBRUHL and husband J. DELAINE
DEBRUHL, Respondents.


       Appeal by Lisa H. Debruhl and J. Delaine Debruhl (collectively, “the

Debruhls”) from the Order entered on 28 April 20161 and the Corrected Order entered

on 3 May 2016 by Judge J. Thomas Davis in Buncombe County Superior Court.

Heard in the Court of Appeals 3 May 2017.


       Deutsch & Gottschalk, P.A., by Tikkun A.S. Gottschalk, for Petitioners-
       Appellees Janet H. Solesbee and Carl Solesbee.

       Westall, Gray & Connolly, P.A., by J. Wiley Westall, III, for Respondents-
       Appellees Cheryl H. Brown, Roger Brown, Gwenda H. Angel, and Wesley Angel.

       Long, Parker, Warren, Anderson, Payne & McClellan, P.A., by Robert B. Long,
       Jr., for Respondents-Appellants Lisa H. Debruhl and J. Delaine Debruhl.


       MURPHY, Judge.




       1  We note that this Order is unsigned and undated, and that the Order’s file stamp is illegible
so it cannot be confirmed that it was entered on 28 April 2016 as the Notice of Appeal alleges. The
record index bears an alternative entry date of 12 April 2016. However, since the Order was amended
by the Corrected Order issued on 3 May 2016, there are no jurisdictional issues with this appeal.
                                 SOLESBEE V. BROWN

                                   Opinion of the Court



      The Debruhls appeal from an order requiring the partition by sale of all parcels

at issue in this action. On appeal, the Debruhls argue that the trial court erred in

finding and concluding that: (1) a partial physical partition of the lands cannot be

made without causing substantial injury to one or more of the interested parties; and

(2) Janet H. Solesbee and Carl Solesbee (collectively, “the Solesbees”), who sought a

partition by sale of the real property, could later pursue an in-kind allotment if the

trial court decided against ordering the sale of the parcels, thereby complicating the

partial actual allotment sought by the Debruhls. After careful review, we reverse the

trial court’s decision and remand the case so that the trial court can make the specific

findings of fact required by law and then re-examine its conclusions of law.

                                   I. Background

      Janet H. Solesbee, Cheryl H. Brown, Gwenda H. Angel, and Lisa H. Debruhl

are sisters (collectively, “the Sisters”). Each sister inherited a one-fourth, undivided

interest in the real property at issue, located in Asheville, as tenants in common from

their father, Walter Honeycutt. The property is comprised of multiple parcels, which

were designated as Parcel One, Parcel Two, and Parcel Three by the trial court

(collectively, “the Parcels”). The Solesbees and the Debruhls individually own and

reside on real property adjacent to Parcels Two and Three. The Parcels and the

residences are all zoned for residential use.




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                                         Opinion of the Court



         On 9 January 2015, the Solesbees petitioned for a partition by sale of the

Parcels.2 The Browns and Angels filed a response to the petition, and they also

admitted that a sale was necessary. The Debruhls filed a separate answer to the

petition, acknowledging that Parcel One should be sold but also requesting an in-kind

allotment of Parcels Two and Three that adjoin their residential property.

         On 28 December 2015, the Clerk of Buncombe County Superior Court ordered

the Parcels be sold by private sale. The Debruhls timely appealed to the Superior

Court.       On 3 May 2016, the trial court issued its Corrected Order, in which it

concluded that: (1) an actual partition of the lands could not be made without causing

substantial injury; and (2) the fair market value of each cotenant’s share in an actual

partition would be materially less than the amount each cotenant would receive from

the sale of the whole.

         The trial court arrived at this conclusion after comparing the fair market value

of Parcels Two and Three to one-fourth of the combined fair market value of all of the

Parcels as a whole. Since the trial court found that “[i]t is inevitable” that the Parcels

will be rezoned for commercial use, which would bring “a far higher value for the

property than residential use,” it assigned a range of fair market values for each

Parcel as opposed to a specific value. Specifically, the trial court found that, since

“Parcel One is currently zoned for residential use, but could likely be re-zoned for


         2Although the Sisters’ husbands are not record owners of the Parcels, each husband is a proper
party to this action because they have inchoate marital interests in the Parcels.

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                                        Opinion of the Court



commercial use,” the “fair and reasonable market value of Parcel One . . . [was

somewhere between] $190,000.00 to $300,000.00.” For Parcel Two, the trial court

found that “[i]n light of the nature of Parcel Two, including being encumbered by

numerous sewer line and road easements, extremely steep and rocky terrain, flood

plains, and erratic shape, there is practically no useable land on Parcel Two, except

as presently being used,” making the “fair and reasonable market value of Parcel

Two . . . $19,550 to $20,000.” Finally, the trial court found that there was “practically

no or very limited useable land on Parcel [Three],” making the “fair and reasonable

market value . . . $16,800.00 to $30,000.00.”

       The trial court then found that the combined value of Parcels Two and Three

was $36,350 to $50,000, and that the fair market value of all the Parcels was

“$225,350 to $350,000, with a one-fourth interest in all the Parcels being $56,337.50

to $87,500.”3 Accordingly, the trial court found that “[t]he fair market value of Parcels

Two and Three combined ($36,5004 to $50,000) is substantially less than one-fourth

of the total fair market value ($56,337.50 to $87,500).”

       In determining that actual partition would result in substantial injury, the

trial court considered these values as well as: (1) the personal value of the Parcels to




       3 We note that the sum of $36,350 and $190,000, the value of Parcel One, is $226,350, not
$225,350, making the one-fourth interest in all Parcels $56,587.50, not $56,337.50.
       4 We also note that the trial court refers to the combined fair market value of Parcels Two and

Three as $36,500 here, but that the earlier reference to those same Parcels noted their valuation was
$36,350, as the sum of $19,550 and $16,800 is $36,350, not $36,500.

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                                   Opinion of the Court



the parties; (2) the difficulty of physical partition; and (3) the “highest and best use”

of the Parcels. Based on these considerations, the trial court ordered that all of the

Parcels be sold together as one, or, alternatively, that Parcel One be sold individually

and Parcels Two and Three be sold together, whichever would bring the highest sale

price. The Debruhls timely appealed from the Corrected Order.

                               II. Standard of Review

      When the trial court sits without a jury:

             [T]he 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, 235-36, 695 S.E.2d 818, 821 (2010) (emphasis

omitted).   “[W]hether a partition order and sale should issue 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).

                                     III. Analysis

      The Debruhls do not dispute any of the trial court’s findings of fact regarding

the valuation of the Parcels, and therefore those findings are binding on appeal.

Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am., ___ N.C. App. ___, ___, 781


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                                    Opinion of the Court



S.E.2d 840, 842 (2016). However, the Debruhls do dispute: (1) whether some of the

findings are truly conclusions of law; and (2) whether the findings support the trial

court’s conclusion that substantial injury would occur if a partition in kind were

ordered.

       We conclude that the trial court erred in its determination that an actual

partition cannot be made without causing substantial injury to one or more of the

interested parties because the trial court failed to make the specific findings of fact

necessary to support an order for partition by sale of the Parcels. Particularly, the

trial court failed to make specific findings of fact as to: (1) the value of each individual

Parcel; and (2) the value of each share of Parcels Two and Three, were those Parcels

to be physically partitioned. Accordingly, we need not address the issue of whether

the trial court erred in concluding that the Solesbees could seek an in-kind allotment

post judgment.

       A tenant in common is entitled, as a matter of right, to a partition of lands in

which she has an interest so that she may enjoy her share. Brown v. Boger, 263 N.C.

248, 256, 139 S.E.2d 577, 582 (1965). The law favors partition in kind because it

“does not . . . compel a person to sell his property against his will, which . . . should

not be done except in cases of imperious necessity.” Id. at 256, 139 S.E.2d at 582-83.

On that basis, a court will not deny a property owner’s right to a partition in kind

simply because her cotenants prefer a sale of the property over physical partition or



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                                   Opinion of the Court



because there are slight disadvantages to it. Id. at 256, 139 S.E.2d at 583. Further,

“[s]ince partition in kind is favored, such partition will be ordered, even though there

may be some slight disadvantages . . . in pursuing such method.” Id. at 256, 139

S.E.2d at 583.

      Before a trial court can order a partition by sale, then, the trial court must

consider whether, by a preponderance of the evidence, “an actual partition of the

lands cannot be made without substantial injury to any of the interested parties.”

N.C.G.S. § 46-22(a) (2015) (emphasis added). To overcome the presumption in favor

of physical partition, the law requires:

              (b) In determining whether an actual partition would
             cause “substantial injury” to any of the interested parties,
             the court shall consider the following:
                    (1) Whether the fair market value of each cotenant’s
                    share in an actual partition of the property would be
                    materially less than the amount each cotenant
                    would receive from the sale of the whole.
                    (2) Whether an actual partition would result in
                    material impairment of any cotenant’s rights.
             (b1) The court, in its discretion, shall consider the remedy
             of owelty where such remedy can aid in making an actual
             partition occur without substantial injury to the parties.
             (c) The court shall make specific findings of fact and
             conclusions of law supporting an order of sale of the
             property.
             (d) The party seeking a sale of the property shall have the
             burden of proving substantial injury under the provisions
             of this section.



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                                          Opinion of the Court



N.C.G.S. § 46-22(b)-(d) (emphasis added).5 In parsing the language of this statute,

this state’s appellate courts have addressed: (1) whether slight economic

disadvantage or convenience are sufficient justifications for ordering a partition in

kind; (2) what specific findings a trial court must make before ordering partition in

kind; and (3) whether those requisite findings may be circumvented based on the

difficulty of physically partitioning the property at issue.

        At times, physical partition can be hampered by the nature of the property at

issue. The issue of difficulty of physical partition was addressed by our Supreme

Court in Brown v. Boger, 263 N.C. 248, 139 S.E.2d 577 (1965). In that case, our

Supreme Court considered the appropriateness of a partition by sale of a roughly

1,250 acre property with irregular boundaries as well as different types and grades

of land. Id. at 252, 139 S.E.2d at 580. The trial court had found that, “from an

economic standpoint,” it was in the best interest of the petitioners to sell the property

as a whole as actual partition of the lands would cause “financial detriment to those

who want to sell,” and that the petitioners would “receive more from the sale of the

lands as a whole” than they would receive from “the sale of that portion of the lands




        5  In 2009, the General Assembly amended N.C.G.S. § 46-22(c) to “clarify the standard for
determining what constitutes ‘substantial injury.’ ” 2009 North Carolina Laws S.L. 2009-512 (H.B.
578). The phrasing changed from “the court shall specifically find the facts supporting an order of the
sale of the property” to “the court shall make specific findings of fact and conclusions of law supporting
an order of sale of the property.” Id. (emphasis added).

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                                   Opinion of the Court



which would be allotted to them in an actual partition.” Id. at 253-54, 139 S.E.2d at

581.

       On review, our Supreme Court, however, held that “[s]ince partition in kind is

favored, such partition will be ordered, even though there may be some slight

disadvantages . . . in pursuing such method.”         Id. at 256, 139 S.E.2d at 583.

Furthermore, “[a] sale will not be ordered merely for the convenience of one of the

cotenants” because “[t]he physical difficulty of division is only a circumstance for the

consideration of the court.” Id. at 256, 139 S.E.2d at 583. In that case, the trial court

failed to find “that the 1250 acres of land [could] not be divided so that seven-tenths

in value could be allotted to the plaintiffs and three-tenths in value to defendants.”

Id. at 257, 139 S.E.2d at 583. As such, the Supreme Court asked, “[i]f the land will

bring more as a whole, how much more? Will the difference be so material and

substantial as to make an actual partition unjust and inequitable?” Id. at 259, 139

S.E.2d at 585. As the trial court’s findings failed to answer those questions, our

Supreme Court reversed and remanded the case so that the trial court could make

the requisite findings. Id. at 259, 139 S.E.2d at 585.

       Almost three decades later, in Partin v. Dalton, 122 N.C. App. 807, 436 S.E.2d

903 (1993), this Court later considered whether a partition by sale was proper where

“neither party presented any evidence as to the current value of the land at the time

of trial, nor as to what the value of the land would be were it to be actually


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                                   Opinion of the Court



partitioned.” Id. at 809, 436 S.E.2d at 905. Petitioners in that case only presented

evidence that “the acreage nearest Haystack Road was worth roughly $700 per acre”

and then provided that “the acreage at the eastern end of the property” was “worth

$200 or $400 per acre depending on whether there was a means of access to the

property.” Id. at 809, 436 S.E.2d at 905. Based on this evidence, that trial court

concluded that an actual partition could not be made without causing substantial

injury. Id. at 812, 436 S.E.2d at 906.

      On appeal, however, this Court disagreed and held that, to be upheld, the trial

court’s findings of fact “must be supported by evidence of the value of the property in

its unpartitioned state and evidence of what the value of each share of the property

would be were an actual partition to take place.” Id. at 812, 436 S.E.2d at 906

(emphasis added).    As such, based on the lack of evidence before it, this Court

concluded that the “trial court failed to make the required findings of fact that actual

partition would result in one of the cotenants receiving a share with a value

materially less than the value of the share he would receive were the property

partitioned by sale.” Id. at 812, 436 S.E.2d at 906. Accordingly, we reversed and

remanded the case for a new trial. Id. at 812, 436 S.E.2d at 906.

      This Court also recently addressed whether the requirement of specific

findings can be circumvented based on the difficulty of physically partitioning the

land. In Lyons-Hart, the trial court’s findings only established that “the property


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                                   Opinion of the Court



would be difficult to partition in-kind” because, among other things, the property was

“very irregular” and the boundary was “not well established.” 205 N.C. App. 232,

238, 695 S.E.2d 818, 822 (2010). Once again, “the trial court made no findings

regarding the value of the property in its unpartitioned state [or] the value of the land

should it be divided” before it concluded that a physical partition could not be made

without causing substantial injury to some or all interested parties. Id. at 235, 238,

695 S.E.2d at 820, 822.

      As in Partin, this Court reversed the decision of the trial court and held that it

“must consider evidence of fair market value in determining whether a substantial

injury would result from a partition in-kind.” Id. at 235, 695 S.E.2d at 820. Thus,

“despite evidence that the partition in-kind would be difficult, this Court required a

showing of fair market value” in order to sustain a conclusion regarding substantial

injury even where there was testimony concerning the value of the property. Id. at

235, 695 S.E.2d at 820.

      A. Specific Findings

      In the instant case, just as in Brown, Partin, and Lyons-Hart, the trial court

erred in determining that physical partition would cause substantial injury when it

did not first consider the fair market value of the Parcels should they be physically

divided.   Although the trial court considered the combined fair market value of

Parcels Two and Three in comparison to the one-fourth interest in all parcels, those


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                                  Opinion of the Court



assessments only indicate the value of the land should it be transferred to only one

of the tenants in common. However, there was no evidence as to what the value of

the land would be if Parcels Two and Three were physically divided and transferred

to several of the tenants in common.

      Since the trial court found in finding of fact 21 that, if it were to order a

partition in kind of Parcels Two and Three, one or more of the other tenants in

common could also request a portion, the trial court necessarily needed to determine

the value of those Parcels if that possibility came to fruition. As the trial court’s

findings fail to indicate the fair market value of Parcels Two and Three if they were

divided, they cannot support that court’s conclusion that each cotenant’s share would

be “materially less [upon physical partition] than the amount each cotenant would

receive from the sale of the whole.” N.C.G.S. § 46-22(b)(1) (emphasis added).

      As this matter will be remanded, for purposes of judicial economy we also note

that the trial court’s findings as to the fair market value of the Parcels additionally

fail to satisfy the requirements of N.C.G.S. § 46-22 in that, although the trial court

acknowledged that the current zoning classification of the Parcels “does not allow

commercial or industrial use,” it nevertheless considered the possibility that the

Parcels would be rezoned for commercial use at a later date to determine the fair

market value of each Parcel. Since commercial use would bring “a far higher value

for the property than residential use,” the trial court assessed each Parcel’s value


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                                   Opinion of the Court



based on the lower residential and higher commercial value. As a result, instead of

assigning precise fair market values, each Parcel was assigned a sweeping range of

possible values. For example, the largest discrepancy existed in relation to Parcel

One, which the trial court found was valued somewhere between $190,000 and

$300,000 – with a $110,000 difference between the lowest and highest possible fair

market value. Since it is clear from the language of N.C.G.S. § 46-22 and our caselaw

that specific findings of fact must support an order for the sale of property based on

substantial injury, these sweeping ranges cannot be upheld.

      B. Substantial Injury

      Instead of looking at the fair market value were it physically partitioned, the

trial court in this case considered: (1) the personal value of the Parcels to the parties;

(2) the difficulty of physically partitioning the land; and (3) the “highest and best use”

of the Parcels.

      In regard to the personal value of the property, the trial court considered the

conflicting desires of the Debruhls and Solesbees and how their ownership of adjacent

property affects their interests in the Parcels at issue. Specifically, it considered the

fact that the Debruhls hope to continue living on their property and “want[ ] all or a

portion of Parcels Two and Three as a buffer to the growing commercial use of the

properties,” while the Solesbees desire to sell Parcels Two and Three for commercial

use in order to increase the fair market value of their residential property. As such,


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                                  Opinion of the Court



the trial court found that transferring Parcels Two and Three to the Debruhls “would

be an improper favoritism to [them]” and “unequitable and unfair to the other tenants

in common,” especially the Solesbees, since they also reside near the Parcels.

      It is clear from N.C.G.S. § 46-22 and our caselaw that economic factors alone

control whether substantial injury exists to disturb the status quo of partition-in-

kind. Partin, 112 N.C. App. 807, 436 S.E.2d 903; Lyons-Hart, 205 N.C. App. 232, 695

S.E.2d 818.    Although material impairment of any cotenant’s rights must be

considered in determining whether an actual partition should be ordered, personal

value or desired use of the property does not affect material impairment of any rights.

      Second, the trial court considered the difficulty of physical partition.

Specifically, the trial court found that “[d]ue to the saturation of Parcels Two and

Three with easements, and their geographical and shape limitations on use and

access across these Parcels, there is no practical way to fairly and equitably divide

these parcels into two to four parcels.” However, as we have already established,

Brown makes clear that specific findings as to the fair market value of a piece of

property cannot be circumvented by the difficulty of physical partition. In order

todeal with land that is difficult to partition physically and to help balance each

party’s share, N.C.G.S. § 46-22(b1) requires a court to consider owelty. Owelty refers

to the ability of a court to order that “a cotenant who receives a portion of the land

which has a greater value than his proportionate share of the property’s total value,


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                                  Opinion of the Court



to pay his former cotenants money to equalize the value received by each cotenant.”

Partin, 112 N.C. App. at 812, 436 S.E.2d at 906.

      Specifically, N.C.G.S. § 46-22(b1) requires that “the court, in its discretion,

shall consider the remedy of owelty where such remedy can aid in making an actual

partition occur without substantial injury to the parties.”      (Emphasis added).

Although in the present case the trial court did conclude that owelty was not an

appropriate remedy, that determination cannot be upheld, even with the discretion

granted to the trial court, because the trial court’s conclusion was based on

inappropriate findings. Until the trial court makes the requisite findings regarding

the fair market value of the Parcels, it cannot decide whether owelty is an

appropriate.

      Finally, the trial court determined that “[o]ffering Parcels Two and Three with

Parcel One for sale [would] bring the tenants in common the highest value for the

property as a whole” and that “[i]n reality the highest and best use of Parcels Two

and Three is to combine them with adjoining property for commercial use.” However,

such conclusions fail to satisfy the standards required by N.C.G.S. § 46-22. N.C.G.S.

§ 46-22 does not state that “highest and best use” of the land should factor into the

determination of whether actual partition would cause substantial injury. As such,

physical partition does not work a substantial injury simply because it would not be

the “highest and best use” of the land.



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                                  Opinion of the Court



      The trial court erred by failing to make specific findings as to the value of each

Parcel and the value of each share of the Parcels were those Parcels physically

partitioned. It further erred in utilizing factors such as the personal value of the

Parcels to the parties, the difficulty of physical partition, and the “highest and best

use” of the Parcels in concluding that substantial injury would result by physical

partition.

                                    IV. Conclusion

      For the foregoing reasons, we reverse the trial court’s order and remand with

instructions for the trial court to make the specific findings of fact required by

N.C.G.S. § 46-22 and our caselaw.

      REVERSED AND REMANDED.

      Judge CALABRIA and DIETZ concur.




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