{ "id": 12169031, "name": "TOMMY M. WHITESELL, Petitioner-Appellee v. CATHY B. BARNWELL, Respondent-Appellant", "name_abbreviation": "Whitesell v. Barnwell", "decision_date": "2014-06-17", "docket_number": "No. COA13-1426", "first_page": "471", "last_page": "476", "citations": [ { "type": "official", "cite": "234 N.C. App. 471" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 46-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": -1 }, { "cite": "268 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560016 ], "opinion_index": -1, "case_paths": [ "/nc/268/0014-01" ] }, { "cite": "451 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525441 ], "year": 1994, "pin_cites": [ { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0387-01" ] }, { "cite": "41 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "pin_cites": [ { "page": "370", "parenthetical": "\"estates less than freehold, called 'estate for years,' however long, created by lease, have been classified almost invariably as personal, and not real property\"" } ], "opinion_index": 0 }, { "cite": "227 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622353 ], "year": 1947, "pin_cites": [ { "page": "160", "parenthetical": "\"estates less than freehold, called 'estate for years,' however long, created by lease, have been classified almost invariably as personal, and not real property\"" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0159-01" ] }, { "cite": "263 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "597", "parenthetical": "\"a lease is a species of personal property\"" } ], "opinion_index": 0 }, { "cite": "299 N.C. 510", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575331 ], "year": 1980, "pin_cites": [ { "page": "513", "parenthetical": "\"a lease is a species of personal property\"" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0510-01" ] }, { "cite": "443 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 805", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528021 ], "year": 1994, "pin_cites": [ { "page": "807-08" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0805-01" ] }, { "cite": "745 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2013, "pin_cites": [ { "page": "341", "parenthetical": "\"Plaintiff cites no authority in support of this conclusory statement, and fails to make any actual argument in her brief as required by N.C.R. App. P. 28(b)(6), resulting in abandonment of Plaintiff's argument.\"" } ], "opinion_index": 0 }, { "cite": "337 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "141" }, { "page": "141" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521360 ], "year": 1985, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0379-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 46-44", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2013, "opinion_index": 0 }, { "cite": "149 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1966, "pin_cites": [ { "page": "558" } ], "opinion_index": 0 }, { "cite": "695 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "821" }, { "page": "821", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734325 ], "year": 2010, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0232-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 46-22", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "268 N.C. 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560016 ], "opinion_index": 0, "case_paths": [ "/nc/268/0014-01" ] } ], "analysis": { "cardinality": 597, "char_count": 12534, "ocr_confidence": 0.721, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24686902595479504 }, "sha256": "ad1a850a66dea884b31e98f8512fa755e7dbe9d6eca1693b948f3c0327f8d029", "simhash": "1:4bbfe72b3847e5db", "word_count": 2012 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, Robert C. and ELMORE concur." ], "parties": [ "TOMMY M. WHITESELL, Petitioner-Appellee v. CATHY B. BARNWELL, Respondent-Appellant" ], "opinions": [ { "text": "McGEE, Judge.\nTommy M. Whitesell (\u201cPetitioner\u201d) and Cathy B. Barnwell (\u201cRespondent\u201d) each own a one-half leasehold interest in Lot No. 47 Belews Lake, Rockingham County and a one-half interest in personal property consisting of the following: a Park Model Home (\u201cthe mobile home\u201d) on the lot and \u201call personal property and improvements contained\u201d on the lot. At the time Petitioner and Respondent acquired the leasehold interest and the mobile home, they were in a dating relationship. They entered into a written agreement (the \u201cAgreement\u201d) around April 2000, that provided for the disposition of \u201cthe property located at Belews Lake\u201d should either party die or should either party \u201cdesire to sell their individual ownership^]\u201d\nPetitioner, on 29 November 2012, filed a petition for sale of the \u201cleasing interest\u201d and the personal property. The matter came on for hearing on 29 July 2013. In an order entered 19 August 2013, the trial court found that \u201ca dispute exists between the Parties as to whether the Agreement contemplates both the Leasehold Interest and the Personal Property.\u201d The trial court further found that the parties \u201chave experienced substantial difficulty in attempting to share the Leasehold Interest and Personal Property, resulting in numerous disagreements relating to maintenance, storage of boats on off weekends and reimbursement of expenses.\u201d\nThe trial court was \u201cnot persuaded that the Agreement reflects or is sufficient evidence that the Parties intended to forever waive or abandon their respective rights to partition their Leasehold Interest in the Property or the Personal Property.\u201d The trial court ordered a public sale of the leasehold interest and the personal property. Respondent appeals.\nI. Standard of Review\nIt is well settled that \u201cwhen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u201d Lyons-Hart v. Hart, 205 N.C. App. 232, 235, 695 S.E.2d 818, 821 (2010). \u201cFindings of fact by the trial court in a non-jury trial have the force and effect of a jury verdict and are conclusive on appeal if there is evidence to support those findings. A trial court\u2019s conclusions of law, however, are reviewable de novo.\u201d Id. The \u201c \u2018determination as to whether a partition order and sale should [be] issue [d] is within the sole province and discretion of the trial judge and such determination will not be disturbed absent some error of law.\u2019 \u201d Id. at 236, 695 S.E.2d at 821 (citation omitted).\nII. Analysis\nRespondent argues that the trial court erred in ordering a sale. Respondent makes several sub-arguments in support of this contention.\nA. Estoppel\nFirst, Respondent contends Petitioner \u201cwas estopped by contract from partitioning.\u201d For support, Respondent cites Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966). In Properties, the agreement did not contain an express stipulation that a party shall not partition the property. Id. at 20, 149 S.E.2d at 558. However, our Supreme Court observed that it was apparent \u201cfrom the instrument itself and from the circumstances surrounding its execution that neither party considered the possibility of partition during the life of Mrs. Cox.\u201d Id.\nBy contrast, in the present case, the trial court found that a dispute existed as to whether the agreement contemplated both the leasehold interest and the personal property. Furthermore, the trial court was \u201cnot persuaded that the Agreement reflects or is sufficient evidence that the Parties intended to forever waive or abandon their respective rights to partition their Leasehold Interest in the Property or the Personal Property.\u201d Respondent does not challenge the above findings of fact on appeal as unsupported by competent evidence.\nRather, Respondent contends that the trial court, \u201cafter finding that an agreement existed, surely erred in assigning its own temporal interpretation to the [Agreement.\u201d To the extent this statement challenges the trial court\u2019s finding of fact, Respondent nevertheless has failed to show the trial court erred. There is no indication in the trial court\u2019s order that it based its finding on the passage of time. Rather, the trial court based its finding on the language of the Agreement, which does not contain any express stipulation as to partition. Respondent has not shown error on this basis.\nB. Injury\nRespondent next contends Petitioner will not suffer either injury or substantial injury. To the extent this statement constitutes an argument that the trial court erred in making finding of fact 9 (\u201cIt is impossible to divide the Leasehold Interest or the Personal Property without substantial injury to at least one of the Parties.\u201d), Respondent has failed to demonstrate that the trial court erred on this basis. \u201cIf a division of personal property owned by any persons as tenants in common, or joint tenants, cannot be had without injury to some of the parties interested, and a sale thereof is deemed necessary, the court shall order a sale to be made[.]\u201d N.C. Gen. Stat. \u00a7 46-44 (2013). Respondent\u2019s argument consists of questioning the evidence of injury.\nHowever, Petitioner testified during the hearing before the trial court that the alternating weekly schedule that the parties had been using since 2002 \u201cdoesn\u2019t work.\u201d He testified that the parties argued about the time frame and which duties each should perform at the property. The parties disagreed about picking up broken tree limbs, mowing the grass, the use of the septic tank, the installation of a light near the lake, cable expenses, utility expenses, fertilizer, kitchen supplies, and cleaning the property. Petitioner further testified that Respondent\u2019s pontoon blocked his view of the lake and prevented Petitioner from keeping his boat in the slip. This evidence shows the obstacles Petitioner faces in selling his one-half interest in the leasehold, mobile home, and other personal property. Petitioner would suffer injury by either being unable to sell his one-half interest or having to accept a drastically reduced price to attract a buyer who wishes to share a one-half interest with Respondent.\nThe evidence shows that a \u201cdivision of personal property owned by any persons as tenants in common, or joint tenants, cannot be had without injury to some of the parties interested[.]\u201d N.C.G.S. \u00a7 46-44. Respondent has not shown error on this basis.\nC. Unclean Hands\nRespondent next contends that Petitioner has unclean hands. \u201cThe doctrine of clean hands is an equitable defense which prevents recovery where the party seeking relief comes into court with unclean hands.\u201d Ray v. Norris, 78 N.C. App. 379, 384, 337 S.E.2d 137, 141 (1985). However, within this sub-section, Respondent cites no supporting authority and restates earlier arguments relating to equity. Respondent contends that the fact Petitioner \u201cassigned away a significant portion of the personal property\u201d by \u201ctitling it to himself and his new wife,\u201d is a material breach of the agreement.\nRespondent does not challenge the trial court\u2019s finding that the agreement does not show that the parties intended to waive the right to partition. Respondent has presented no authority for such application of the doctrine of unclean hands in this case, where Petitioner does not seek relief under the agreement, but rather through statute. Relief \u201cis not to be denied because of general iniquitous conduct on the part of the complainant[.]\u201d Id. at 384, 337 S.E.2d at 141. Respondent has failed to show error on this basis.\nD. Essential Party\nRespondent also contends that Petitioner \u201chas not named an essential party, Carolina Marina, the leasing entity for Duke Power.\u201d However, Respondent again cites no supporting authority for this argument. See N.C.R. App. P. 28(b)(6) (\u201cThe body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.\u201d). Furthermore, Respondent does not describe how this constitutes reversible error by the trial court. This argument is therefore dismissed. See Hackos v. Goodman, _ N.C. App. _, _, 745 S.E.2d 336, 341 (2013) (\u201cPlaintiff cites no authority in support of this conclusory statement, and fails to make any actual argument in her brief as required by N.C.R. App. P. 28(b)(6), resulting in abandonment of Plaintiff\u2019s argument.\u201d).\nE.Findings and Conclusions\nRespondent next contends that the trial court\u2019s order \u201cis wholly inadequate to support an order for the sale of property\u201d under the requirements of N.C. Gen. Stat. \u00a7 46-22(c). However, N.C.G.S. \u00a7 46-22(c) does not govern this case. The applicable statute is N.C. Gen. Stat. \u00a7 46-44, which provides that if \u201ca division of personal property owned by any persons as tenants in common, or joint tenants, cannot be had without injury to some of the parties interested, and a sale thereof is deemed necessary, the court shall order a sale[.]\u201d N.C.G.S. \u00a7 46-44. This Court has held that a \u201cleasehold interest in real property is a chattel real and as such is subject to rules of law applicable to personal property.\u201d First Southern Savings Bank v. Tuton, 114 N.C. App. 805, 807-08, 443 S.E.2d 345, 346 (1994); see also Real Estate Trust v. Debnam, 299 N.C. 510, 513, 263 S.E.2d 595, 597 (1980) (\u201ca lease is a species of personal property\u201d); Moche v. Leno, 227 N.C. 159, 160, 41 S.E.2d 369, 370 (1947) (\u201cestates less than freehold, called \u2018estate for years,\u2019 however long, created by lease, have been classified almost invariably as personal, and not real property\u201d); Fleet National Bank v. Raleigh Oaks Joint Venture, 117 N.C. App. 387, 391, 451 S.E.2d 325, 328 (1994). Respondent has therefore failed to show error on this basis.\nAffirmed.\nJudges HUNTER, Robert C. and ELMORE concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Rossabi Black Slaughter, P.A., by T. Keith Black and Gavin J. Reardon, for Petitioner-Appellee.", "Forrester Law Firm, by Richard W. Forrester, for Respondent-Appellant." ], "corrections": "", "head_matter": "TOMMY M. WHITESELL, Petitioner-Appellee v. CATHY B. BARNWELL, Respondent-Appellant\nNo. COA13-1426\nFiled 17 June 2014\n1. Partition\u2014jointly held leasehold\u2014contract\u2014no estoppel\nIn an action involving the partition or sale of a leasehold in lake property as well as personal property, petitioner was not estopped by the agreement between the parties. Unlike Properties, Inc. v. Cox, 268 N.C. 14, in this case the trial court based its finding on the language of the parties\u2019 agreement (which did not contain any express stipulation as to partition) rather than the passage of time.\n2. Partition\u2014lake property leasehold\u2014injury to a party\nIn an action involving the partition or sale of a leasehold in lake property as well as personal property, respondent did not show error on the question of whether petitioner would suffer injury or substantial injury. Respondent\u2019s argument consisted of questioning the evidence of injury, but the evidence showed that petitioner would suffer injury by either being unable to sell his one-half interest or having to accept a drastically reduced price to attract a buyer wishing to share a one-half interest with respondent.\n3. Partition\u2014relief sought under statute\u2014defense of unclean hands\nRespondent did not show error on the basis of unclean hands in an action for the partition or sale of a leasehold in lake property as well as personal property. She restated earlier equity arguments but presented no authority for an application of unclean hands in this case, where petitioner sought relief through statute rather than under the parties\u2019 agreement.\n4. Appeal and Error\u2014failure to cite supporting authority\u2014failure to describe reversible error\nRespondent\u2019s argument concerning essential parties in an appeal from an order that a joint leasehold in lake property and personal property be sold was dismissed where she cited no supporting authority. Furthermore, she did not describe how the alleged omission constituted reversible error.\n5. Partition\u2014sufficiency of order of sale\u2014governing statute\nRespondent did not show error with the contention that a trial court\u2019s order for the sale of a jointly owned leasehold in lake property as well as personal property was not sufficient under the requirements of N.C. Gen. Stat. \u00a7 46-22(c). The case was governed by N.C.G.S. \u00a7 46-44 rather than N.C.G.S. \u00a7 46-22(c).\nAppeal by Respondent from order entered 19 August 2013 by Judge A. Robinson Hassell in Superior Court, Rockingham County. Heard in the Court of Appeals 20 May 2014.\nRossabi Black Slaughter, P.A., by T. Keith Black and Gavin J. Reardon, for Petitioner-Appellee.\nForrester Law Firm, by Richard W. Forrester, for Respondent-Appellant." }, "file_name": "0471-01", "first_page_order": 481, "last_page_order": 486 }