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Breen v. Sharp

Court of Appeals of Tennessee, Nashville

November 14, 2017

MIKE BREEN, ET AL.
v.
JANICEC. SHARP

          Session August 29, 2017

         Appeal from the Chancery Court for Stewart County No. CH-14-CV-74 David D. Wolfe, Chancellor

         This 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Modified in Part

          Thomas F. Bloom, Nashville, Tennessee, for the appellant,

          Janice C. Sharp. Larry B. Watson, Clarksville, Tennessee, for the appellees, Travis Breen and Caleb Breen.

          Frank G. Clement Jr., P.J., M.S. delivered the opinion of the Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         This 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).

         The 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.

         On July 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.

         On 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 belonging.

         Approximately 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.

         After 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 one-fourth interest.
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 more problematic.
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 interest impossible.
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 reduced.

         Thus, 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.

         Ms. 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.

         The 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.

         Less 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 ...


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