MIKE BREEN, ET AL.
Session August 29, 2017
from the Chancery Court for Stewart County No. CH-14-CV-74
David D. Wolfe, Chancellor
appeal arises from an action for partition of undeveloped
real property located in Stewart County, Tennessee. The
property consists of three non-contiguous tracts and is owned
by three people ─ two brothers and their aunt. The
brothers ("Plaintiffs") seek partition of all of
the property by sale. Their aunt ("Defendant")
seeks partition in kind. Pursuant to an agreed order of
reference, the trial court referred the case to a special
master to determine the ownership interests of the parties,
whether the property could be partitioned in kind, and
whether there were any encumbrances. Prior to the completion
of the master's report, Defendant filed a motion for
summary judgment. The court delayed ruling on the motion
until after the master's report was completed.
Thereafter, the special master filed a report in which he
found that Defendant owned a one-half undivided interest, and
each Plaintiff owned an undivided one-fourth interest. The
master also concluded that the overall value of the property
would be reduced if the property was partitioned in kind
among the three parties. Defendant filed eight exceptions to
the report. After reviewing the report and evidence presented
at the master's hearing, the trial court concurred with
all but one of the master's findings. As for that one
issue, the court ordered a partial partition in kind of one
tract, awarded that parcel to Defendant, and ordered her to
pay $195, 948 to Plaintiffs for the value of that parcel. The
remaining property was to be sold with the proceeds divided
according to the parties' respective interests. The court
also denied Defendant's motion for summary judgment.
Defendant appeals, contending the trial court erred by (1)
delaying its ruling on her summary judgment motion; (2)
determining that Plaintiffs each owned an undivided
one-fourth interest; (3) ruling that the entire property
could not be partitioned in kind; and (4) valuing the parcel
awarded to her in kind based on incompetent evidence. We
affirm the trial court on all issues except for the value
assigned to the parcel awarded to Defendant, and modify the
judgment in that respect only.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part and Modified in Part
F. Bloom, Nashville, Tennessee, for the appellant,
C. Sharp. Larry B. Watson, Clarksville, Tennessee, for the
appellees, Travis Breen and Caleb Breen.
G. Clement Jr., P.J., M.S. delivered the opinion of the
Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ.,
G. CLEMENT JR., P.J., M.S.
case involves an action for partition of approximately 238
acres of undeveloped real property located in Stewart County,
Tennessee. Two tracts are fronted by Melton Springs Road,
with one tract lying to the north of Melton Springs Road
(Tract 1) and the other to the south (Tract 2). The third
tract is located several miles away in an area known as
Saline Creek (Tract 3).
parties to this action acquired the property from the Doxie
W. Crutcher Revocable Trust ("the Trust") pursuant
to the terms of the trust following the death of Ms. Crutcher
in January 2012. The Trust provided that upon Ms.
Crutcher's death "the Trustee shall divide my
Residuary Trust Estate into two equal shares. The Trustee
shall distribute one share to my daughter Janice C. Sharp,
free of trust; and shall distribute one-half share to my
grandson Caleb Breen and one-half share to my grandson Travis
Breen, free of trust." It also provided that in the
event Travis Breen had not attained the age of twenty-six at
the time of Ms. Crutcher's death, the shares of Caleb and
Travis Breen would be held in trust by their father, Mike
Breen, until Travis Breen attained the age of twenty-six.
Following Ms. Crutcher's death, the property was conveyed
pursuant to the terms of the Trust.
24, 2014, Mike Breen, acting in his capacity as Trustee of
his sons' shares, commenced this action for partition,
requesting that the property be sold and that the proceeds be
divided according to the parties' interests. The
defendant, Janice C. Sharp ("Ms. Sharp") filed an
answer contending that the property was capable of being
partitioned in kind or partially partitioned in kind.
Specifically, and for sentimental reasons, Ms. Sharp wanted
to be awarded the western half of Tract 2, because it
contained an old school house where her grandmother taught
and her mother attended.
January 16, 2015, the parties entered into an agreed order to
refer the case to the special clerk and master. It stated:
The Petition in this cause seeks to sell for partition, but
not all facts sufficiently appearing, it is hereby ORDERED
that the cause be referred to the Clerk and Master, Jane
Link, as Master and Special Commissioner, and that the Master
take proof and report back to the Court for following:
1. Who are the owners of the premises sought to be sold, and
the respective rights, titles, and interest of the parties,
and what share or part belongs to each.
2. Are the premises so situated that partition in kind cannot
be equitably made, or whether they are of such description
that it would be manifestly for the advantage of the parties
that the same should be sold, instead of partitioned.
3. Whether there are any encumbrances on the premises not
disclosed in the pleadings; and if so, what, and to whom
one month later, Ms. Sharp filed a motion for summary
judgment. Thereafter, Travis Breen reached the age of
twenty-six, and he and his brother, Caleb, were substituted
as plaintiffs. The plaintiffs, Travis and Caleb Breen
(collectively, "Plaintiffs") then filed a response
in opposition to the motion. The court determined that Ms.
Sharp's motion was "premature, " because the
special master had not yet investigated the facts and
reported to the court on the issues. Consequently, the court
declined to rule at that time.
the parties presented evidence at a hearing on November 23,
2015, the special master made several findings. We summarize
those findings as follows:
1. Ms. Sharp owned an undivided one-half interest in the
property, and Travis and Caleb Breen each owned an undivided
2. The property was unencumbered.
3. The fact that Travis and Caleb Breen each owned an
undivided one-fourth interest would make an in kind division
4. Tracts 1 and 2 varied significantly in topography,
consisting of flat to rolling pastures and deep hollows. The
topography would make it "virtually impossible to
partition the property in kind so as to give each cotenant an
equal share by value and acreage."
5. Tract 3 (Saline Creek property) had limited access which
would make partition in kind relative to each co-tenant's
6. No in kind division proposed by the parties gave them
equal road frontage. The western half of Tract 2 (the tract
desired by Ms. Sharp) was the most valuable tract.
7. If the three tracts were divided into six tracts of equal
acreage, as Ms. Sharp proposed, the overall value would be
the clerk and master concluded that a partition in kind was
impossible, and that it would be "manifestly for the
advantage of the parties" if the property was sold as
three separate tracts, with the proceeds divided in
accordance with the parties' relative interests.
Sharp filed eight exceptions to the clerk and master's
report. After considering each exception, the trial court
adopted all but one of the clerk and master's findings.
Contrary to the clerk and master's finding that the
property should be sold as three separate tracts, the trial
court determined that dividing the property into smaller
tracts would increase the number of potential buyers.
court agreed with the clerk and master that the character and
topography of the property rendered a complete in kind
division impossible; however, it determined that a partial
partition in kind was possible as to the western half of
Tract 2 (54.43 acres), the portion of the property that Ms.
Sharp wanted. Based on the valuation given by one of the
Plaintiffs' expert witnesses, the court valued the
western half of Tract 2 at $3, 600 per acre for a total value
of $195, 948. The court ruled that Ms. Sharp would receive
her desired tract after transferring one-half of $195, 948 to
Plaintiffs, with each plaintiff receiving $48, 987. The rest
of the property would be sold, and the proceeds would be
divided relative to each of the parties' interests.
than a month after making its ruling, the trial court held a
hearing on Ms. Sharp's motion for summary judgment. Ms.
Sharp argued that the trial court improperly ...