No. 25106-3-III.The Court of Appeals of Washington, Division Three.
June 5, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 04-2-00519-2, Donald W. Schacht, J., entered March 13, 2006.
Affirmed by unpublished opinion per Kato, J. Pro Tem., concurred in by Schultheis, A.C.J., and Kulik, J.
KATO, J. PRO TEM.[*]
Kenneth and Sheryl Cox appeal a decree partitioning real property held in common with Kirk and Nancy Klicker.[1] They contend the court erred by basing its decision on the business interests of the parties and by failing to partition the parcels in a manner proportionate to the respective interests of the parties. We affirm.
In the late 1800s, Jake and Almina Klicker arrived in Walla Walla as homesteaders. They had three children: Jake, Kitty, and Del. Jake and Del became agricultural business partners and formed the Klicker Brothers partnership. Del had one son, Richard, and Jake had six children: Jake, Ruth, Bob, Don, Del and Dave. The Klicker Brothers partnership name was eventually changed to Klicker Brothers and Sons to include the sons of Jake and Del: Richard, Bob, and Don. Richard had four daughters: Sheryl Cox, Robyn Meenach, Jerri Lyn Westphal and Teresa Williamson (the Klicker sisters). Bob had three sons: Mark, Kraig and Kirk (the Klickers).
Between the late 1930s and early 1940s, two parcels of land in Walla Walla known as Thomas Place and Snake River were purchased by the Klicker Brothers. Over the years, subsequent generations of the Klicker family became owners of the parcels. The Klicker sisters and their spouses owned a 52.6 percent interest in Thomas Place and approximately a 50 percent interest in Snake River. The Klickers and their spouses owned a 47.4 percent interest in Thomas Place and about a 50 percent interest in Snake River.
Thomas Place consists of 177 acres contiguous to Walla Walla Community College. A small perennial creek, Titus Creek, crosses the property and provides water for 170 acres of the property. Four houses and a number of farm buildings are also located at Thomas Place. The farm buildings are owned by the Klicker Brothers partnership. One of the houses on the property is owned by the Klicker sisters. The other three houses are owned and occupied by the Klickers.
Thomas Place is predominately used for agricultural purposes. Kirk and Nancy Klicker raise strawberries on 43 acres of the property. Kenneth and Sheryl Cox own a cattle operation. They use a corral consisting of pens, fencing, a squeeze chute, a small corrugated shed, a lean-to, and a weighing facility, as well as some pasture land at Thomas Place during the fall and winter. None of the other Klicker sisters use the Thomas Place property except to rent to a third party the one house they own and some heavy equipment storage.
The Snake River property consists of 3,857 acres with 20 different parcels. Tillable land constitutes 2,079 acres of the property. A majority of the tillable land is enrolled in the Conservation Reserve Program (CRP). The remainder of the land constitutes 1,509 acres of range land, 263 irrigated acres, and 4 homestead/farmstead acres.
In 1999, Ms. Cox entered into negotiations with Walla Walla Community College to sell a portion of the Thomas Place property. On July 9, 2004, the Klicker sisters filed an action to partition Thomas Place. On September 3, the Klickers filed a third-party complaint to partition the Snake River property. On October 25, the State of Washington sent a letter to Ms. Cox offering to purchase approximately 27 acres of the Thomas Place property for $400,000. The sale, however, did not occur because the parties were unable to reach an agreement on partition of the land.
Trial commenced on October 25, 2005. Both parties submitted partition proposals for the properties. At the conclusion of trial, the court accepted the Klickers’ proposal. The court found that an equal partition of land at Thomas Place could not be made without prejudice to the rights and interests of the Klickers. The court then partitioned the property by awarding the Klicker sisters 47.35 acres valued at $621,740. The remainder of the land was awarded to the Klickers. In order to equalize the partition consistent with the current percentage ownership, the court ordered the Klickers to pay an owelty award to the Klicker sisters in the amount of $215,170.
The court partitioned the Snake River property by awarding the Klickers a portion of parcel P and any and all interests held by the parties in parcels R, Q, O, M, K, L, N, J, H, and a portion of parcel I. The court awarded the Klicker sisters any and all interests held by the parties in parcels A, B, C, D, E, F, G, and a portion of parcels I, T, S, and P. The court also awarded a house and structure located on parcel D to the Klicker sisters. Although the court determined the partition of the Snake River property resulted in the Klicker sisters receiving land valued at approximately $65,000 more than their ownership interest, the court ordered that no owelty payment would be made to the Klickers.
On February 3, 2006, the Klicker sisters filed a motion for reconsideration. The Coxes also filed declarations for the purpose of supplementing Ms. Cox’s trial testimony. The court denied the motion. The Klicker sisters appeal.
They contend the court erred in its partition of the Thomas Place property by basing its decision on the business interests of the parties. The Klicker sisters contend the court erroneously weighed the relative prejudice between strawberry and cattle businesses, even though the best use of the property was for development purposes, and ordered a forced sale by the concept of owelty simply to preserve the strawberry business.
“A partition action is both a right and a flexible equitable remedy subject to judicial discretion.” Friend v. Friend, 92 Wn. App. 799, 803, 964 P.2d 1219 (1998), review denied, 137 Wn.2d 1030 (1999). The partition of property owned in common is an equitable remedy in which the court has great flexibility in fashioning relief. Id.; Leinweber v. Leinweber, 63 Wn.2d 54, 385 P.2d 556 (1963).
“The partition statutes give tenants in common the right to partition their property either in kind or by sale.” Friend, 92 Wn. App. at 803. Partitions in kind, however, are favored whenever practicable. Id. “If partition in kind is not practicable, the statute authorizes a court to order a partition by sale. That is, the owner’s right to separate ownership of property is guaranteed by statute, `even though it can be accomplished only through the channel of a sale.‘” Id. (quoting Huston v. Swanstrom, 168 Wash. 627, 631, 13 P.2d 17 (1932)). A partition by sale is appropriate only when a partition in kind would destroy the property’s usefulness. See Hegewald v. Neal, 20 Wn. App. 517, 523, 582 P.2d 529 review denied, 91 Wn.2d 1007 (1978).
Relying on RCW 7.52.010 and RCW 7.52.080, the Klicker sisters apparently argue that the court’s application of owelty constituted a forced sale of the property. They argue the court was required to apply the statutory concept of “great prejudice to the owners” to the value of the land and not the respective business interests of the parties. The statutes state in relevant part:
When several persons hold and are in possession of real property as tenants in common . . . an action may be maintained by one or more of such person, for a partition thereof, according to the respective rights of the persons interested therein, and for sale of such property, or a part of it, if it appear[s] that a partition cannot be made without great prejudice to the owners.
RCW 7.52.010.
If it can be alleged in the complaint and established by evidence . . . to the satisfaction of the court, that the property or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees.
RCW 7.52.080.
Thus, the partition statutes require that before a sale can be ordered, in preference to a partition in kind, the court must find by evidence that the property or any part of it is so situated that partition in kind cannot be made without great prejudice to the owners. Huston, 168 Wash. at 630. “Great prejudice” is defined as material pecuniary loss and the burden is on the party asserting it. Williamson Inv. Co. v. Williamson, 96 Wash. 529, 536, 165 P. 385
(1917).
The partition statute, however, also provides for the unequal partition of land, without requiring a sale of the property. RCW 7.52.440 states in pertinent part that
[w]hen it appears that partition cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interests of some of them, the court may adjudge compensation to be made by one party to another on account of the inequality of partition.Although the Klicker sisters argue the court was required to measure “great prejudice” as to the value of the land rather than the business interests of the parties, RCW 7.52.010 and RCW 7.52.080 are inapplicable here. Likewise, the case law cited by them in support of their argument pertains only to partitions by sale. The court’s partition of the Thomas Place property did not constitute a partition by sale as contemplated by the partition statute. The court-ordered owelty payment was to equalize the partition of property under RCW 7.52.440. It did not convert the partition in kind to a partition by sale.
Moreover, RCW 7.52.440 only requires the court to consider the respective rights of the parties. The statute does not require the court to measure prejudice in terms of the value of the property. The court weighed the interests in the Klickers’ strawberry business against Ms. Cox’s cattle business to find that an unequal partition was required to preserve Kirk and Nancy Klickers’ livelihood. The court took into account the prejudice to the Klicker sisters by equalizing the partition through an owelty payment. Under the broad discretion afforded the court in partition actions, it did not err.
The Klicker sisters also argue there was insufficient evidence to support several of the court’s findings of fact. Specifically, they assign error to the following findings:
21. The 43 acres on which Kirk and Nancy A. Klicker raise strawberries are divided into six separate fields. Were the Thomas Place partitioned as proposed by the plaintiffs, the defendants would lose two of the six fields.
22. The partition of land proposed by the plaintiffs would include two easements running from the southern one-half of the property to the north to connect with Isaacs Avenue. These easements would cut through two of the four strawberry fields that plaintiffs propose to be partitioned to the defendants. These easements would result in a loss of additional strawberry acres to the defendants, creating two small parcels that would not be functional to raise strawberries.
. . . .
35. Sheryl Cox testified that another location of the corral at the Thomas Place was possible. The corral could be at another location at the Thomas Place and still serve her cattle operation.
36. The corrals and feeding area immediately adjacent thereto cover approximately three acres. The corrals itself covers approximately .5 acre. The cattle/corral operation could be moved/relocated. Testimony suggested the cost of new corral and feeding area fences, panels and other material to relocate the cattle/corral operation at a different location would be approximately $17,000, excluding labor, water and electricity.
. . . .
39. Were the Thomas Place land divided on a percentage basis reflective of the above-referenced percentage ownership, Kirk and Nancy A. Klicker would lose more than 50% of the water out of Titus Creek. This potentially could have serious consequences for their berry operation during parts of the year.
. . . .
55. Both plaintiffs and defendants agreed that owelty was appropriate when partitioning the Thomas Place.
. . . .
62. The location of the corral and its use by the plaintiffs (primarily Sheryl and Kenneth Cox) has been a source of some tension and conflict between the parties.
63. No testimony or evidence was presented to the court indicating that the cattle/corral operation could not be relocated immediately within a reasonable period of time. The court finds no reason why a different location for the cattle corral operation could not be found and in place by May 1, 2006.
64. An equal partition of land at the Thomas Place cannot be made according to the respective ownership interests or percentage of the parties without prejudice to the rights and interests of the defendants.
65. A partition of the Thomas Place as proposed by the defendants would not prejudice the rights or interests of the plaintiffs considering their historical use of and plans for the land.
Clerks Papers (CP) at 201, 203-04, 206, 208.
“When the trial court has weighed the evidence, [this Court’s] review is limited to determining whether the court’s findings are supported by substantial evidence and, if so, whether the findings support the court’s conclusions of law and judgment.” Panorama Vill. Homeowners Ass’n v. Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417
(2000), review denied, 142 Wn.2d 1018 (2001). “The challenged findings will be binding on appeal if they are supported by substantial evidence in the record.” In re Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 (2000). “Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.” State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Evidence may be substantial even if there are other interpretations of the evidence. Sherrell v. Selfors, 73 Wn. App. 596, 600-01, 871 P.2d 168, review denied, 125 Wn.2d 1002
(1994). “The party challenging a finding of fact bears the burden of showing that it is not supported by the record.” Panorama Vill., 102 Wn. App. at 425.
Review of the record, however, shows the court’s findings were supported by the evidence presented at trial. The trial court’s reliance on the testimony and evidence from one party over another’s regarding Thomas Place is a credibility determination we do not disturb on appeal. It is not the role of the appellate court to substitute its judgment for that of the trial court or to weigh the evidence or the credibility of the witnesses. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 Wn.2d 1030 (1996). The court’s findings are supported by the evidence.
The Klicker sisters next contend the court failed to partition the Snake River property in a manner proportionate to the respective interests of the parties. They first argue the court awarded them an unfair percentage of CRP acreage.
At trial, Ms. Cox testified the Klicker sisters were entitled to 933 tillable acres. Of those tillable acres, they were entitled to approximately 796 CRP acres. But the evidence at trial established the CRP parcels were spread out among the entirety of the 3,800 acre parcel. Kirk Klicker testified that based on the current ownership interest of the parties at the time of the partition action, the Klickers owned a slightly higher percentage of the CRP acres than the Klicker sisters. The court-adopted partition proposal was not based on dividing the number of CRP acreage equally between the parties. Instead, the partition was based on the actual value of the land as identified by the Klickers’ appraisal. This partition ensured contiguity in ownership to the property for both parties, since CRP acreage was located throughout the entirety of the property, and gave the Klicker sisters a significantly higher value of property than the Klickers without being required to make an equalization payment. The court’s decision based on the value of the property as a whole and not the number of CRP acres was proper.
The Klicker sisters next argue that the number and value of the irrigated acreage in parcels E and G are incorrect. During trial, Ms. Cox testified that parcels E and G contained 47 acres, not 79 acres as identified in the appraisal. Ms. Cox testified that this error constituted a $50,000 discrepancy in the values of the property. She further supported this testimony with a supplemental post-trial declaration addressing why she believed the appraisal incorrectly calculated the acreage. The Klickers rebutted Ms. Cox’s testimony in their written closing arguments to the court. They argued the Klicker sisters did not have the property appraised and their calculations were incorrect due to a miscalculated southern boundary that excluded irrigated acreage.
But again, the court’s reliance on the testimony and evidence from one party over another’s regarding the total number of acreage in parcels E and G is a determination peculiar to the trial court. We do not substitute our judgment for that of the trial court or weigh the evidence or credibility of witnesses. Rich, 80 Wn. App. at 259.
The Klicker sisters next argue the court erred in its partition of the home and grain bins located on parcel D. They argue these items were owned by the Klicker Brothers partnership so the court did not have the authority to award partnership assets to the Klicker sisters. But the Klicker sisters fail to support their argument with any citation to authority that this constituted error by the trial court. This court will not consider arguments without supporting legal authority. RAP 10.3(a)(5).
The Klicker sisters also argue the court’s findings of fact were unsupported by the evidence. They assign error to the following findings:
79. The 20 parcels compromising the Snake River land at issue have a total value of $1,168,725. Klicker, et al. Closing Argument, Exh. C — new Exh. 26, pg. 10. Of that total, the [Klickers] have varying percentage ownerships in the 20 parcels, which total $586,797.26. [The Klicker sisters] have varying percentage ownership in the 20 parcels, which total $581,927.86.
. . . .
84. A concern was expressed at trial by Sheryl Cox regarding division of the land as concerns CRP acreage. The proposed partition of the Snake River land made by the [Klickers] will result in a fair and equitable division of CRP acreage.
. . . .
86. Contiguity of land and the character and the use of the various parcels comprising the Snake River land would be better achieved by partitioning the land as proposed by the [Klickers].
. . . .
88. A fair and equitable division of the Snake River land is as set forth on the map of that property attached as exhibit D (Exh. 26, new pg. 15) to the Klicker, et al. Closing Argument. This proposed division is itemized at exhibit E to the Klicker, et al. Closing Argument (Exh. 26, new pg. 14).
89. The partition of Snake River land proposed by [the Klickers] will result in the [Klicker sisters] receiving land having a total value of $647,478 (consisting of 2,099.31 acres). [The Klickers] will receive land valued at $521,249 (consisting of 1,757.78 acres).
CP at 210, 211-12.
Here, the court’s findings mirrored the values listed in the Klickers’ appraisal of the Snake River property, as well as the testimony of the parties at trial. The findings were supported by substantial evidence. The court did not err in its partition of the Snake River property.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Schultheis, A.C.J.
Kulik, J.