[Cite as Thrasher v. Watts, 193 Ohio App.3d 569, 2011-Ohio-2844.]




           IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

THRASHER,                                        :

        Appellee,                                : C.A. CASE NO.          2010 CA 62

v.                                               : T.C. NO.         09CV397

WATTS,                                           : (Civil appeal from
                                                   Common Pleas Court)
        Appellant.                               :



                                          ..........

                                        OPINION

                        Rendered on the 10th day of June, 2011.

                                          ..........

Theresa A. Baker, for appellee.

Michael A. Mayer, for appellant.

                                          ..........

        FROELICH, Judge.

        {¶ 1} Dallas Watts appeals from a judgment of the Clark County Court of

Common Pleas, which found in favor of Heidi Thrasher on her action for partition of the

parties’ residential property and in Watts’s favor on Thrasher’s claims for conversion of

insurance proceeds and her personal property and on Watts’s counterclaim for

conversion. For the following reasons, the trial court’s judgment regarding partition of

the property is reversed, and the matter is remanded for further proceedings.
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                                                I

       {¶ 2} In February 2008, during the course of their relationship, Watts and

Thrasher purchased the home located at 8441 Haddix Road in Fairborn, Ohio, as joint

tenants with right of survivorship. The purchase price for the home was $100,000. At

closing, the parties made a down payment of approximately $40,000, obtained a

mortgage from Countrywide Home Loans for the balance, and paid off certain personal

bills. Thrasher provided the vast majority of the funds for the down payment.

       {¶ 3} Between February and September, the parties made substantial

renovations to the home, including creating a master bedroom and bathroom, renovating

other bathrooms, installing tile, replacing doors and framing, repairing drywall, and

painting. Thrasher paid for much of the materials for the renovations. A large portion

of the work was done by Kevin Reynolds, a family friend who resided at the home in

exchange for his labor. The parties and their families also contributed labor to the

renovations. The trial court found that Watts, with some help from his father, “did a

considerable amount of plumbing, bathroom remodeling, electric, and drywall, but he

was essentially receiving free room and board in exchange for that labor.”

       {¶ 4} On September 14, 2008, the roof to the house was significantly damaged

by a wind storm. Encompass Insurance issued two checks totaling $11,779 to Watts for

repairs. Most of the proceeds were used to pay for household bills, for repairs to

Thrasher’s vehicle, and for materials so that the parties could repair the roof themselves.

       {¶ 5} The parties’ relationship deteriorated, and in November 2008, they

obtained a civil protection order against the other. Watts and Thrasher informally

agreed to move from the residence. On November 19, 2008, Thrasher went to the house
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to retrieve her personal property. Thrasher took a substantial portion of the items in the

house, and she acknowledged that she inadvertently took some of Watts’s items.

        {¶ 6} While the house was unoccupied, Watts began work on the roof, but he

did not complete the repairs, and some of the materials were stolen. In addition, the

house was vandalized on one or more occasions. On New Year’s Eve, Reynolds and

relatives of Thrasher repaired the roof “to the point where it was in good enough

condition to get it through that winter.”

        {¶ 7} The house remained unoccupied until April 2009, when Thrasher moved

back into the house. Since then, Thrasher has brought the mortgage payments current

and has continued to pay the mortgage, partially with funds borrowed from her relatives.

        {¶ 8} In late March 2009, Thrasher filed a complaint against Watts for partition

and conversion. Thrasher alleged that Watts had wrongfully converted the insurance

claim proceeds and items of her personal property. She sought the return of her personal

items or damages for the value of that property, payment of the insurance proceeds so that

she could repair the property, and an order “requiring that either said real estate be

partitioned and plaintiff’s interest be set off in severalty; or in the event that plaintiff’s

interest in said real estate may not be set off in severalty, that said real estate be sold and

plaintiff be entitled to all the proceeds from the sale.”

        {¶ 9} Watts denied Thrasher’s claims and brought a counterclaim for

conversion of his own personal property. Watts’s prayer for relief included a request for

damages and for either partition of the property or that the property be sold and the equity

divided.

        {¶ 10} A bench trial was held on March 1, 2010. The trial court found that
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Thrasher’s equity in the home at the time of closing was $40,144.92. The trial court

found that Watts’s equity in the home at the time of trial equaled $839, representing $314

brought to the closing plus $525 for seven months of mortgage payments. The court

rejected Watts’s suggestion that the property be sold, the mortgage satisfied, and the

proceeds be split between Thrasher and him. The court commented that such suggestion

“ignores the fact that plaintiff has invested approximately $40,000 more into the real

property than he has.” The court concluded:

         {¶ 11} “Accordingly, the Court finds in favor of plaintiff on her partition claim.

There are only two possible remedies for plaintiff. Option one would be to sell the

property, satisfy the mortgage, pay the defendant $839.00 for his equitable interest, and

retain the remainder of the proceeds less realtor fees and other closing costs. Option two

would be for the Court to grant her exclusive and unencumbered title to the real property

conditioned upon her first paying defendant $839.00 for his equitable interest therein.

         {¶ 12} “The Court will defer to plaintiff’s discretion and allow her to exercise the

option of her choice.”

         {¶ 13} The trial court entered judgment in favor of Watts on Thrasher’s

conversion claims regarding the insurance proceeds and her personal property. The

court ordered each of the parties to return any property of the other that he or she might

have.

         {¶ 14} Watts appeals from the trial court’s judgment, raising one assignment of

error.

                                                  II

         {¶ 15} Watts’s assignment of error states:
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       {¶ 16} “The court failed to follow the statutes controlling partition actions found

in Ohio Revised Code 5307 and instead made an improper equitable determination

relative to the jointly owned real property.”

       {¶ 17} In his sole assignment of error, Watts claims that the trial court erred in

failing to follow the statutory procedures for the partitioning of real property.

       {¶ 18} Partition actions are governed by R.C. Chapter 5307. Under that statute,

a tenant in common, survivorship tenant, or coparcener (joint heir) may file a petition in

the common pleas court seeking partition of real estate. R.C. 5307.01; R.C. 5307.03.

“If the court of common pleas finds that the plaintiff *** has a legal right to any part of

the estate, it shall order partition of the estate in favor of the plaintiff or all interested

parties, appoint one suitable disinterested person to be the commissioner to make the

partition, and issue a writ of partition.” R.C. 5307.04.

       {¶ 19} If partition is granted among survivorship tenants, as is the case here, the

court must determine the share to which each is entitled as if the tenants were tenants in

common. R.C. 5307.05. Where a deed is silent, there is a rebuttable presumption that

the parties took equal interests in the property. Bryan v. Looker (1994), 94 Ohio App.3d

228, 231.

       {¶ 20} The commissioner has the duty to make the partition. R.C. 5307.06. In

doing so, the commissioner is required to view and examine the property. Id. If the

commissioner concludes that the estate cannot be divided “without manifest injury to its

value,” the commissioner “shall return that fact to the court of common pleas with a just

valuation of the estate.” R.C. 5307.09.

       {¶ 21} If the court accepts the return, a party may elect to take the estate at the
                                                                                           6

appraised value. Id. If so, the court must adjudge the property to that party, upon the

party’s paying to the other parties their proportion of its appraised value, according to

their respective rights, or securing it as provided in R.C. 5307.10. Id. If none of the

parties elects to take the property, the court may order the property to be sold. R.C.

5307.11.   Similarly, if multiple parties separately elect to take the property at its

appraised value, the court must sell the property. Weber v. McGowan-Young, Clark

App. No. 07-CA-89, 2008-Ohio-4147, ¶14, citing Darling v. Darling (1911), 85 Ohio St.

27, 33. Once the court confirms the sale, the proceeds are distributed to the parties in

proportion to their rights. R.C. 5307.14.

       {¶ 22} Watts acknowledges that the trial court properly made an initial finding

that each party had an interest in the property. He emphasizes, however, that the trial

court did not comply with any other procedural requirement in R.C. Chapter 5307. He

notes that no commissioner was appointed, there was no finding that the property could

not be partitioned, and the court failed to obtain a just valuation of the property. Watts

asserts that the court “essentially awarded the Property to Plaintiff, with a nominal

payment to Defendant.”

       {¶ 23} Thrasher does not dispute that the trial court failed to follow the statutory

procedures. Instead, she argues that the present case involved an equitable – rather

than a statutory – partition, and that the trial court’s order should be upheld “on the basis

of fairness.” She states that Watts’s objections “appear to be exclusively technical” and

that a similar result would be reached if the case were remanded for the appointment of a

commissioner.

       {¶ 24} We reject Thrasher’s contention that she brought an action for “equitable
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partition” and that compliance with R.C. Chapter 5307 is unnecessary. An action for

partition is equitable in nature, but it is controlled by statute. See McGill v. Roush

(1993), 87 Ohio App.3d 66, 79 (“The remedy of partition, throughout the United States, is

statutory, and partition is generally held to be one of the subjects of settled equitable

jurisdiction”); Russell v. Russell (1940), 137 Ohio St. 153. While the court may apply

equitable principles to ensure an equitable partition, the court must comply with the

statutory procedures in R.C. Chapter 5307. Redmon v. Surina, Pickaway App. No.

04CA4, 2005-Ohio-2472 (reversing the trial court’s partition order when it failed to

follow the statutory requirements regarding partition proceedings).

       {¶ 25} The record substantiates Watts’s claims that the trial court failed to follow

several of the statutory procedures for partition. As recognized by Watts, the trial court

properly determined that both parties had a legal right to the property and the proportion

of that interest. However, no commissioner was appointed, and no recommendation was

made to the trial court regarding whether the property could be divided without a

manifest injury to the property’s value. The parties testified to the value of the property

as assessed by the county auditor, but the parties did not agree regarding the current value

of the property and no independent valuation was provided to the court by a

commissioner.

       {¶ 26} As for the court’s remedy, the trial court permitted Thrasher to elect

between a sale of the property and paying Watts the amount of his equity in the property.

Although this approach may have been an efficient means to a likely outcome, it was not

in accordance with R.C. Chapter 5307. Most significantly, it did not provide Watts an

opportunity to elect the property and, instead, left the remedy to Thrasher’s discretion.
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       {¶ 27} “‘In equitable matters, the court has considerable discretion in attempting

to fashion a fair and just remedy.’ Winchell v. Burch (1996), 116 Ohio App.3d 555, 561.

But this discretion cannot flout or override specific statutory mandates. The wisdom and

efficacy of existing constitutional laws is a matter for the legislature.” Wells Fargo

Bank, N.A. v. Young, Darke App. No. 2009 CA 12, 2011-Ohio-122, ¶63 (reversing the

trial court’s use of a foreclosure procedure that was not authorized by statute).

       {¶ 28} Based on the trial court’s failure to comply with the statutory requirements

for partition, Watts’s assignment of error is sustained.

                                                III

       {¶ 29} The trial court’s judgment regarding partition of the property is reversed,

and the matter is remanded for further proceedings.

                                                                     Judgment reversed

                                                                     and cause remanded.

GRADY, P.J., and FAIN, J., concur.
