Whitesell v. Barnwell , 234 N.C. App. 471 ( 2014 )

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,
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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.
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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
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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
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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,
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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
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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
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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
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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.