MacHelle P. Morton v. Kevin Joiner Pitts

• Court: Court of Appeals of Georgia
• Decided: October 30, 2020
• Docket: A20A1241
• Status: Published

Opinion

THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, J.

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October 30, 2020

In the Court of Appeals of Georgia A20A1241. MORTON v. PITTS, et al.

MCFADDEN, Chief Judge.

This is an appeal from an order in a partition action brought under Georgia’s

Uniform Partition of Heirs Property Act (UPHPA, hereinafter “the Act”), OCGA §§

44-6-180 et seq. Among other things, the Act requires a trial court to order an

appraisal of the property at issue before determining how to partition the property.

OCGA § 44-6-184 (a). Appellant Machelle P. Morton, who brought this action in her

capacity as the trustee of a living trust, correctly argues on appeal that the trial court

did not comply with this mandatory statutory procedure. For this reason, we vacate

the order and remand the case for further proceedings not inconsistent with this

opinion. Given this disposition, we do not address Morton’s claim of error that the trial

court should have ordered an open-market sale rather than a public auction or her

claim that the trial court erred in denying her request for attorney fees.

1. Trial court’s failure to order an appraisal.

Morton argues that the trial court erred in failing to order an appraisal of the

property at issue in the partition action. We agree that the Act required the trial court

to order an appraisal in this case.

The Act applies to partition actions involving heirs property, which the Act

defines as “real property held in tenancy in common which satisfies [certain

specified] requirements[.]” OCGA § 44-6-180 (5). Property determined to be “heirs

property . . . shall be partitioned pursuant to [the Act] unless all of the cotenants

otherwise agree in a record.” OCGA § 44-6-181 (b). The trial court held that the

property in this case is heirs property, and the parties agree with that determination.

In an action for partition of heirs property, the Act “provides a series of due

process protections[, including] appraisal . . . and if . . . a sale is required, a

commercially reasonable sale supervised by the court to ensure all parties receive

their fair share of the proceeds.” Faison v. Faison, 344 Ga. App. 600, 602 (1) (811

SE2d 431) (2018) (citation and punctuation omitted). Where the procedures are set

2 forth in the Act using the word “shall,” the procedures are mandatory, and the trial

court errs in failing to follow them. See id. at 603 (1).

As to appraisals, the Act provides that “the court shall determine the fair

market value of the property by ordering an appraisal pursuant to subsection (d) of

this Code Section.” OCGA § 44-6-184 (a) (emphasis supplied). The trial court’s act

of ordering an appraisal is a preliminary step in the statutory scheme for determining

how to partition the property. As the Act details, the trial court determines the fair

market value of the property based at least in part on the court-ordered appraisal, see

OCGA § 44-6-184 (d) through (g), and decisions made by the parties and the trial

court regarding the method of partition are based at least in part on that fair market

value determination. See OCGA §§ 44-6-185 through 44-6-187.

The Act provides two exceptions to the requirement that the trial court order

an appraisal. See OCGA § 44-6-184 (a) (court shall order appraisal “[e]xcept as

otherwise provided in subsections (b) and (c) of this Code section”). First, the trial

court is not required to order an appraisal “[i]f all cotenants have agreed to the value

of the property or to another method of valuation, [in which case] the court shall

adopt that value or the value produced by the agreed method of valuation.” OCGA

§ 44-6-184 (b). Second, the trial court is not required to order an appraisal “[i]f the

3 court determines that the evidentiary value of an appraisal is outweighed by the cost

of the appraisal, [in which case] the court, after an evidentiary hearing, shall

determine the fair market value of the property and send notice to the parties of the

value.” OCGA § 44-6-184 (c).

In her pleading initiating the partition action, which she filed on May 30, 2018,

Morton asked the trial court to order an appraisal. She reiterated this request at other

points throughout the proceedings below. But the other parties to the partition action

argued that an appraisal was not necessary because in February 2018 Morton had

obtained her own appraisal, which valued the property at $2,185,000. Morton

objected to the trial court determining the property’s fair market value based solely

on the February 2018 appraisal, arguing that it was outdated and did not accurately

reflect the property’s value. Nevertheless, the trial court adopted the February 2018

appraisal’s value, acknowledging that appraisal in the order on appeal and holding

that “[t]he fair market value of the [p]roperty is $2,185,000.00 as of February 25,

2018[.]”

From the record described above, it is apparent that the trial court did not

“determine the fair market value of the property by ordering an appraisal[.]” OCGA

§ 44-6-184 (a). It also is apparent that neither of the two exceptions to this statutory

4 requirement existed in this case. Morton did not “agree[ ] to the value of the property

or to another method of valuation,” OCGA § 44-6-184 (b), and the trial court did not

“determine[ ] that the evidentiary value of an appraisal is outweighed by the cost of

the appraisal[.]” OCGA § 44-6-184 (c). We are not persuaded by the defendants’

argument that Morton was required under OCGA § 44-6-184 (e) (3) to object to the

February 2018 appraisal, as that provision applies to “appraisal[s] . . . conducted

pursuant to subsection (d) of this Code section” — in other words, to court-ordered

appraisals. See OCGA § 44-6-184 (d).

“In light of the mandatory language in [OCGA § 44-6-184 (a)], the trial court

erred in not [ordering an appraisal]. If the trial court had [done so], it would have

been required to [consider that appraisal in determining the property’s fair market

value].” Faison, 344 Ga. App. at 603 (1) (footnote omitted). Accordingly, we vacate

the trial court’s order and remand for further proceedings not inconsistent with this

opinion. Id. at 603-604 (1).

2. Remaining enumerations of error.

Our decision to vacate the order and remand this case for further proceedings

could result in a new determination of the property’s fair market value and the

consideration of additional evidence and argument by the trial court. For that reason,

5 we decline to address Morton’s remaining claims of error. Those claims concern the

trial court’s decision to order a public auction rather than an open-market sale and the

trial court’s decision not to award Morton attorney fees, which Morton sought both

under the Act and under OCGA § 13-6-11.

Judgment vacated and case remanded with direction. Doyle, P. J., and Hodges,

J., concur.