SCOVT affirms partition order that did not physically divide property, rejects objection that infeasibility of zoning permit was not a lawful consideration.

  Wells  v. Spera, 2023 VT 18   

           

CARROLL, J. Plaintiffs appeal a civil-division order assigning real property to defendant in this partition action. We affirm.

Plaintiffs argue that the failure to divide the property offends the long-standing preference to order partition in kind over assignment or sale, and that the decision not to divide because of potential zoning violations exceeded the scope of the commissioners’ authority set out in the reference order.

 

Partition actions are governed by statute, 12 V.S.A. §§ 5161-5188, and Civil Rule 53. Under this framework, once the trial court determines partition is appropriate, it appoints three commissioners who reside in the same county as the subject property and who “shall make partition of the estate,” 12 V.S.A. § 5169(a), unless it “cannot be divided without great inconvenience to the parties.” Id. § 5174. If the property cannot be divided without great inconvenience, the “court may order it assigned to one of the parties, provided he or she pays to the other party such sum of money, at such times and in such manner as the commissioners judge equitable.” Id. § 5174. Only if no party will take an assignment may courts order the sale of a property. Id. § 5175. Following receipt of the commissioners’ report, the trial court must accept it “[u]nless cause is shown.” Id. § 5172.

 The court issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report.

 The commissioners credited defendant’s testimony that division would result in an overall value of $1,300,000, which was $200,000 less than the $1,500,000 combined value and concluded that “given the serious zoning hurdles,” the property could not “be physically divided without great inconvenience to the parties because doing so has the very real potential to materially decrease or perhaps even extinguish the property’s value.” They awarded defendant first option to buy out plaintiffs’ interest. 

 Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii), arguing the commissioners erred as a matter of law.  in concluding that partition would result in zoning violations. In the alternative, they argued that the equities favored assigning the property to them.

The court denied the motion and adopted the report without qualification. It reasoned those plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). The court found that the commissioners had acted within the scope of their mandate as described in the reference order and that the record supported their findings and conclusions.

 In contrast to plaintiffs’ characterization, the issue is not whether the commissioners concluded partition in kind was inequitable purely because division would create zoning violations; instead, the question here is whether the commissioners can consider potential zoning violations to determine whether physical division would materially decrease the property’s value. See Billings v. Billings, 114 Vt. 70, 74, 39 A.2d 748, 750 (1944) (explaining that great-inconvenience-to-parties test is whether “the aggregate value of the several parts when held by different persons in severalty will be materially less than the whole value of the property if owned by one person”). 

The commissioners’ findings regarding potential zoning violations, among other findings, supported their conclusion that division would materially decrease the property’s value. The record supports their findings, and the findings support their conclusion not to divide the property. It follows that the trial court did not err in accepting this portion of the report. See Messier, 140 Vt. at 314, 438 A.2d at 400

 Plaintiffs’ next argue that the commissioners erred by giving defendant first right of assignment, improperly considering the parties’ ability to buy out the other in making this determination.  As in Nystrom v. Hafford, the findings about the parties’ relative abilities to timely buy out each other’s interests are appropriate equitable considerations. 2012 VT 60, ¶ 17

 Because. the challenged findings are not clearly erroneous, we need not and do not address whether Rule 53(e)(2) permits a party to object to a report following the report’s delivery to the trial court where the party did not reserve a right to object in the first instance.

Finally, plaintiffs request a remand to redetermine the property’s value because of purported changes in the real-estate market. Plaintiffs fail to cite where this argument was preserved and cite no case or other legal authority in support. Accordingly, we will not review it. V.R.A.P. 28(a)(4)(A) (requiring litigant to demonstrate how issues were preserved and to support argument with citations to authorities and parts of record relied upon); see Kneebinding, Inc. v. Howell, 2020 VT 99, ¶ 61, 213 Vt. 598, 251 A.3d 13 (Mere naked statements, unsupported by argument or citation of authorities, constitute inadequate briefing and merit no consideration.)

 Affirmed.

How cited