This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Allen W. Peterson, et al.,
David M. Bergman,
Filed July 11, 2006
Toussaint, Chief Judge
St. Louis County District Court
File No. 69-C2-04-603182
A. Charles Olson, 2002
West Superior Street, Post Office Box 16873, Duluth, MN 55816-0873 (for
Craig S. Hunter, Northland Law, 11 East Superior
Street, Suite 328, Duluth, MN 55802 (for respondent)
Considered and decided by Toussaint, Chief
Judge; Hudson, Judge;
and Worke, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Respondent David M. Bergman owns an
undivided one-half interest in certain land.
Appellants Allen W. and Leslie Peterson, Anita
L. and Stanley Dekowski, and Roberta J. and Haven S. Hill together own the
other undivided half interest in that land.
Appellants asked the district court to partition the land or to order it
sold and to divide the resulting proceeds.
Respondent opposed appellants’ request, and the district court denied
relief. Appellants argue that the
district court misread Minn. Stat. § 558.14 (2004) and associated case
law. Because the district court’s
findings of fact are supported by the record and it did not otherwise misapply
the law, we affirm.
D E C I S I O N
here, there is no motion for a new trial, an appellate court may review
substantive issues of law properly raised at trial, as well as whether the
evidence supports the findings of fact and whether the findings of fact support
the conclusions of law and the judgment.
Alpha Real Estate Co. v. Delta
Dental Plan of Minn., 664 N.W.2d 303, 310
(Minn. 2003); Gruenhagen v. Larson, 310 Minn.
454, 458, 246 N.W.2d 565, 569 (1976).
Findings of fact are not set aside unless clearly erroneous. Minn.
R. Civ. P. 52.01. In addressing whether
a finding is clearly erroneous, appellate courts view the record in the light
most favorable to the finding and defer to the district court’s credibility
determinations. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn.
1993) (light most favorable to finding); Sefkow
v. Sefkow, 427 N.W.2d 203, 210 (Minn.
multiple persons have interests in the same property as tenants in common or as
joint tenants, an action may be brought to partition the property or, if a partition
cannot occur without greatly prejudicing the owners, to sell all or part of the
property and divide the sale proceeds. Minn. Stat.
§ 558.01 (2004); see Minn. Stat.
§ 558.14 (2004). In addressing whether
to partition land or to order it sold and divide the proceeds, a partition in
kind is presumptively appropriate; a party seeking a sale and division of the proceeds
has the burden of rebutting that presumption by showing that the partition in
kind would greatly prejudice the owners, and “[w]hatever mode of partition is
adopted it must be capable of execution without advancing the interests of one
owner at the expense of the others.” Swogger v. Taylor, 243 Minn. 458, 467, 68 N.W.2d 376, 384 (1955).
complaint asked the district court to rule that a partition in kind could not
occur without great prejudice to the owners and hence that a sale of the
property and division of the proceeds was appropriate. The district court denied relief, stating
that, given the zoning of the property, a partition would produce a noncomforming
use, “virtually destroying the value of the entire property[,]” and that a
forced sale of the entire property could occur only if a partition or a sale of
an undivided half interest in the property would “substantially impair” the
value of the half interest to be sold.
allege that, under Hunt v. Meeker County
Abstract & Loan Co., 128 Minn.
207, 211, 150 N.W. 798, 799 (1915), a cotenant has an absolute right to compel
a partition or a sale of the entire property in which the cotenant has an
interest. They then cite the finding
that a partition would destroy the value of the property and argue that the
district court should not have conditioned a sale of the entire property on both a finding that partition would
greatly prejudice the owners and a
finding that a sale of appellants’ partial interest would impair the value of
that interest. The crux of appellants’ argument is that,
while the only statutory prerequisite for a court-ordered sale of the entire
property is a finding that a partition would cause “great prejudice” to the
owners, the district court erred by basing its denial of relief on the fact
that appellants did not also show that a sale of their interest in the property
would impair the value of that interest.
While Hunt does state that a cotenant has “the
absolute right to compel a partition or sale, unless such right has been
suspended or waived by some agreement in respect to the property made by
himself or by one through whom he claims[,]” it also states that if the
property has been “devoted to some purpose which would be defeated by a
partition made at the present time, the right of partition is suspended to the
extent necessary to avoid defeating such purpose, although there is no express
stipulation to that effect.” Hunt, 128 Minn. at 211-12, 150 N.W. at 799. Here, despite owning undivided half interests
in the property, the parties, because the property is a duplex, agreed respondent
would have exclusive use of one unit of the duplex and appellants would have
exclusive use of the other. Also, since
the 1940’s, the parties have generally treated the property as being separate
parcels. The district court found that partitioning
the property would result in separate parcels that would not satisfy the size
and set-back requirements of the current zoning ordinance. While the current parcel enjoys “grandfather
rights” because of its status as a “legal parcel” when the current zoning
ordinance was enacted, if the property is partitioned, the resulting parcels
would lose those “grandfather rights.” Also,
the resulting parcels would be unbuildable and would be unable to get variances
for their violations of the current zoning ordinance. Thus, a partition would jeopardize the ability
to continue to use the property in the manner to which it has been devoted for
a substantial period of time.
Hunt, the supreme court has emphasized
the breadth of the remedies a district court may use in partition matters,
allowing it to proceed in a manner that will achieve an equitable result in the
case being decided:
[O]nce the court has taken jurisdiction of the individual
case, its equitable determinations therein are not restricted to the specific
situations and the methods or plans of partition enumerated in the partition
act, but it may exercise its general equitable powers and resort to the most
advantageous plans which the nature of the particular case admits in effecting,
without great prejudice to any of the owners, a partition of one or more
tracts, whether such partition be accomplished by a division in kind, by sale,
or by any practical combination of both methods.
Swogger, 243 Minn. at 466-67, 68
N.W.2d at 383. Consistent with the
latitude afforded by Swogger, the
district court did not exceed its authority by examining a possible sale of
only appellants’ interest before requiring sale of the entire property. Absent a showing of “great prejudice,” why respondent
should be required to sell an interest he wants to retain is unclear and is not
explained by appellants.
“great prejudice” under Minn. Stat. § 558.14 exists is a factual question
reviewed for clear error, and a district court’s finding on the subject is not
set aside unless the reviewing court is “left with a definite and firm
conviction that a mistake was made.” Beebout v. Beebout, 447 N.W.2d 465, 467
1989). In the context of a partition, “great
prejudice” occurs if “the value of each share if [physical] partition is made
will be materially less than the share
of money equivalent that could probably be had on a sale of the whole * * *.” Id. (quoting Pigeon
River Lumber Co. v. McDougall, 169 Minn.
83, 87, 210 N.W. 850, 852 (1926)). Here,
because appellants entered no value-related evidence, they did not show the
existence of the “great prejudice” prerequisite for a sale of the entire
alternative to remanding the case for a sale of the property, appellants ask
this court to remand the case to a different judge. Because they make no argument and cite no
authority to support this request, it is waived. See Schoepke
v. Alexander Smith & Sons Carpet Co., 290 Minn.
518, 519-20, 187 N.W.2d 133, 135 (1971) quoted
in State v. Modern Recycling, Inc.,
558 N.W.2d 770, 772 (Minn.