This opinion will be unpublished and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

A05-1643

 

Allen W. Peterson, et al.,

Appellants,

 

vs.

 

David M. Bergman,

Respondent.

 

Filed July 11, 2006

Affirmed

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 appellants)

 

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

            If, as 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. 1988) (credibility).

            When 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).

            Appellants’ 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.

            Appellants 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[1].  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.

            Also, since 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.

            Whether “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 (Minn. App. 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 property.

            As an 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. App. 1997).

            Affirmed.