Opinion
No. COA12–503.
2012-11-6
Richard E. IDOL, Sandra Portaro, Karen Dull and Michael Wayne Dull, Petitioners, v. Weldon Clay IDOL and Lori Idol, Respondents.
Law Offices of Steven D. Smith, PLLC by Steven D. Smith and Smith Moore Leatherwood LLP by Elizabeth Brooks Scherer for petitioners-appellees. Nexsen Pruet, PLLC by M. Jay DeVaney and Brian T. Pearce for respondents-appellants.
Appeal by respondents from order entered 6 November 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 26 September 2012. Law Offices of Steven D. Smith, PLLC by Steven D. Smith and Smith Moore Leatherwood LLP by Elizabeth Brooks Scherer for petitioners-appellees. Nexsen Pruet, PLLC by M. Jay DeVaney and Brian T. Pearce for respondents-appellants.
STEELMAN, Judge.
Evidence in the record supports the findings of the superior court that the commissioners' division of the real property was fair and equitable.
I. Factual and Procedural History
On 18 June 2009, Richard E. Idol, Sandra Portaro, and Karen Dull (petitioners) filed a petition to partition a tract of land between the four tenants in common. On 9 July 2009, Weldon Clay Idol and Lori Idol (respondents) filed a reply and counterclaim. The commissioners filed a report on 23 November 2010.
The report apportioned to respondents, Tract 1, 17.75 acres, to Sandra Portaro, Tract 2, 25.21 acres, to Karen Dull and Michael Wayne Dull, Tract 3, 36.82 acres, and to Richard E. Idol, Tract 4, 26.72 acres. In making the apportionments and allotments, the commissioners employed Brady Surveying Company P.A. and Richard Farris, R.S., “a Licensed Soil Scientist, who performed a preliminary soil site evaluation.” A house on Tract 1 required some repairs. The commissioners assigned it a value of $86,000. A house on Tract 2 had structural deficiencies and was built in the late 1700s. The commissioners assigned it no value.
On 16 February 2011, the clerk of superior court entered an order confirming the commissioners' report. The superior court entered an order on 6 November 2011 confirming the commissioners' report.
Respondents appeal.
II. Standard of Review
A party may appeal the entry of an order of confirmation entered by the clerk to the superior court. N.C. Gen.Stat. § 46–19(c) (2011). The appeal is governed by N.C. Gen.Stat. § 1–301.2(e), which provides for a “hearing de novo.” N.C. Gen.Stat. § 1–301.2(e) (2011). The superior court's remedial powers are constrained by the provisions of N.C. Gen.Stat. § 46–19(b).
Where an actual partition of lands has been ordered, whether the division made by the commissioners was fair and equitable or unequal in value is a question of fact to be determined by the Judge of the Superior Court upon an appeal from a judgment of the clerk affirming the report of commissioners.
West v. West, 257 N.C. 760, 762, 127 S.E.2d 531, 532 (1962). “The findings of the judge are conclusive and binding if there is any evidence in the record to support them.” Id.
III. Finding of Fact 4
In their first argument on appeal, respondents contend that the trial court erred in finding that the commissioners thoroughly considered the structures on the property and their fair market values. We disagree.
The commissioners ... must meet on the premises and partition the same among the tenants in common, or joint tenants, according to their respective rights and interests therein, by dividing the land into equal shares in point of value as nearly as possible, and for this purpose they are empowered to subdivide the more valuable tracts as they may deem best, and to charge the more valuable dividends with such sums of money as they may think necessary, to be paid to the dividends of inferior value, in order to make an equitable partition.
N.C. Gen.Stat. § 46–10 (2011).
At the de novo hearing before the superior court, five witnesses testified. The three commissioners appointed by the clerk of court, Bill Bodsford, Sam Ogburn, Jr., and Michael Clapp, testified. Two persons hired by respondents to review the commissioners' report, Tom Taylor and Henry Mike Watts, also testified. The testimony from the two groups of witnesses sharply conflicted.
In the division of the property, the commissioners considered the “topography, perkability, existence of timber, [and] the conditions and values of the structures.” The consideration of these factors resulted in four tracts, containing 17.75 acres, 25.21 acres, 36.82 acres, and 26.72 acres, which had substantially equal values. The smallest tract, awarded to respondents, encompassed the bulk of the structures on the property.
Respondents' witnesses embraced the premise that none of the structures on the property had any value, determined that the overall value of the property was $12,000 per acre, and proposed dividing the property into four tracts, with each containing approximately 26 acres.
Prior to the division, respondents had been using the entire 106 acres for farming operations, including using the structures on Tract 1 to store farm equipment, grain, and other items. Respondents had advised the commissioners that they wanted Tract 1 because they needed the structures on that tract to store farm equipment.
The superior court's finding of fact 4 states that “the Commissioners throughly [sic] considered the structures on the property, the condition of the structures, both inside and out and the value of the structures on the subject property in determining the division of the property in question.” While respondent vigorously examined the commissioners concerning the value and condition of the structures on the property, there was competent evidence in the record to support finding of fact 4 of the superior court's order.
Respondents argue that the commissioners erred in assigning value to one house and refusing to assign any value to another house. “However, the appellate courts of this jurisdiction are not disposed to review findings of commissioners, approved by the superior court, as to the value of property in partition proceedings .” Phillips v. Phillips, 37 N.C.App. 388, 391, 246 S.E.2d 41, 43 (1978) (citing Fisher v. Toxaway Co., 171 N.C. 547, 88 S.E. 887 (1916)).
A house on Tract 1 required some repairs. The commissioners assigned a value of $86,000. A house on Tract 2 had structural deficiencies and was built in the late 1700s. The commissioners assigned it no value. The superior court's findings were supported by evidence in the record.
This argument is without merit.
IV. Road Frontage
In their second argument, respondents contend that the superior court “erred in failing to find error in the fact that the evidence in the record is that Tract 1 could not be used for the highest and best use the commissioners assigned to it because it was only provided with 30 feet of access on highway 66.” We disagree.
Respondents contend that although the survey of the commissioners' division shows that Tract 1 had 218.21 feet of road frontage on North Carolina Highway 66 and 1142.99 feet of road frontage on the “off Ramp for U.S. 311,” that only 30 feet of this frontage was not subject to “controlled access” by the North Carolina Department of Transportation (DOT). This contention was based on a DOT map dated November 1978, which showed areas condemned from the Weldon Idol property for the interchange between U.S. Highway 311 and North Carolina Highway 66. Mr. Taylor obtained this map from DOT after he had already determined that the property should be divided into four 26 acre tracts. The primary factor in this determination was not a road access issue, but a determination that the structures on the property had no value. We also note that the commissioners' division map refers to a DOT map dated February 1979, not November 1978. There is nothing in the record explaining these different dates.
This argument, as the previous argument, goes to the valuation of the property by the commissioners. As has been previously noted, there was evidence in the record supporting the superior court's findings.
This argument is without merit.
V. Finding of Fair and Equitable Division
In their final argument, respondents contend that the superior court erred in affirming the commissioners' report because the division was not fair and equitable. We disagree.
Evidence in the record supports the superior court's finding of fact that the division was fair and equitable. This finding is thus conclusive and binding on this Court. West, 257 N.C. at 762, 127 S.E.2d at 532.
AFFIRMED. Judges HUNTER, ROBERT C. and BRYANT concur.
Report per Rule 30(e).