THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE
268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Rachel Hall, Respondent,
v.
Angel
Rodriquez, Appellant.
Appeal From Richland County
Joseph M. Strickland, Master-In-Equity
Unpublished Opinion No. 2009-UP-564
Submitted May 1, 2009 Filed November 30,
2009
AFFIRMED AS MODIFIED
James Richardson, Jr. and Steven Anderson,
both of Columbia, for Appellant.
William Booth, III, of West Columbia, for
Respondent.
PER CURIAM: This is an appeal in a partition
action. Angel Rodriquez appeals (1) the refusal by the master-in-equity to
charge Rachel Hall with the value of her use and occupation of the property after
the parties became estranged, (2) the master's finding that certain
improvements to the property increased the value by $30,000.00., and (3) the
award of attorney's fees and costs of $5,624.38 to Hall in the form of a
personal judgment. We affirm as modified.[1]
FACTS AND PROCEDURAL HISTORY
In 2006 Hall and Rodriquez
became engaged and purchased a single-family residential home located in
Blythewood, South Carolina, for $485,000.00. The parties shared equally the
costs to acquire the home and financed the balance of the purchase with a note
and mortgage. Both Hall and Rodriquez brought furniture and other belongings
from their former homes. They moved into the house shortly after the closing.
Although the property was
deeded to Hall and Rodriquez as tenants-in-common, Rodriquez continued to rent
an apartment in Charlotte, where he was working as a computer engineer. During
the work week, Rodriquez stayed in his Charlotte apartment.
The
parties hired a contractor to build three rooms in the unfinished basement of
the house. This work, which was almost completed at the time of trial, added
about 1,418 square feet of finished space to the residence.
Hall later discovered
evidence leading her to believe Rodriquez had been unfaithful to her. Based on
this information, Hall changed the locks and security code. When Rodriquez
unexpectedly arrived at the residence late one evening and became disruptive
upon discovering he could not enter the house, Hall became frightened and
called the police.
The parties attempted to
reconcile, and Rodriquez was later given a key; however, he did not return to
live in the residence except to stay there for four days during the holidays. During
her testimony, Hall maintained she allowed Rodriquez to retrieve various
belongings whenever he requested. In March 2007, without notifying Rodriquez,
Hall removed most of Rodriquez's remaining belongings and placed them in
storage.
After Rodriquez moved out,
Hall commenced this action, seeking partition of the subject property.
Specifically, Hall requested (1) a partition of the property by judicial sale,
(2) attorney's fees and costs, (3) reimbursement for improvements, and (4)
reimbursement for mortgage payments, taxes, and upkeep. In his answer and
counterclaim, Rodriquez agreed to a partition of the property but not to a
judicial sale. By way of counterclaim, he requested that the property be sold
on the market and also alleged Hall's actions in excluding him from the
property constituted ouster and entitled him to damages.
The matter was referred to
the Richland County Master-in-Equity. After hearing the matter, the master
issued a final order granting Hall's request for partition by judicial sale. Disbursements
to Hall and Rodriquez were to be made in proportion to the mortgage payments each
party made on the home; however, the distribution to Rodriquez was subject to
the availability of funds from the successful bid. The master also found the
improvements to the basement had increased the value of the property by
$30,000.00 and adjusted the distribution to each party to reflect his or her respective
contribution to the cost of this improvement.[2]
In addition, the master awarded Hall her full attorney's fee of $5,411.00 plus
costs of $213.38, finding "any legal fees incurred by [Hall] have accrued
based solely on the actions of Rodriquez." The master awarded these
amounts as a judgment against Rodriquez, providing (1) they would be deducted
to the extent there were funds due him from the sale, and (2) any amount still
owing would be reduced to a judgment against him.
Following an unsuccessful
motion to alter or amend the master's order, Rodriquez filed this appeal.
The master's sale took place
while this appeal was pending. Hall was the highest bidder and the bid amount
was $150,000.00.[3]
Pursuant to the terms of the sale, the master signed and filed an order for
disbursements directing Hall to pay Rodriquez $35,176.15, which represented his
net share of the sales proceeds.
ISSUES
I. Should the master have offset
Hall's recovery for mortgage payments, improvements, and other expenses by the
rental value of the property during the time she occupied the home after the
parties separated?
II. Did the master err in valuing the
improvements to the home?
III. Did the master abuse his
discretion in the award of attorney's fees and costs?
STANDARD OF
REVIEW
A partition
action is an equitable matter; therefore, this Court "has jurisdiction to
reach its own conclusion as to the preponderance of the evidence." Ackerman
v. Heard, 287 S.C. 626, 628, 640 S.E.2d 560, 562 (Ct. App. 1986). This
broad scope of review applicable to appeals in equity actions, however,
"does not require an appellate court to disregard the findings below or
ignore the fact that the trial judge is in the better position to assess the
credibility of the witnesses." Pinckney v. Warren, 344 S.C. 382,
387, 544 S.E.2d 620, 623 (2001).
LAW/ANALYSIS
I.
Rodriquez first
argues Hall's decision to seek contribution from him for expenses associated
with preserving and maintaining the property after their separation subjected
her, as the cotenant in possession, to an offset for the value of her use and
occupation of the property. We disagree.
We first address
Hall's contention that Rodriquez failed to preserve this issue for appeal because
he did not argue at trial that exclusive use could be established without proof
of ouster and never presented any credible evidence as to the applicable rental
value. In his responsive pleadings, Rodriquez specifically denied Hall was
entitled to reimbursement for any mortgage payments she made because she had
had sole use, possession, and occupancy of the home since they separated and
further asserted any mortgage payments Hall had made constituted "the fair
market value of the property." These averments precede Rodriquez's counterclaim
for ouster damages, which was set forth in a separate defense and
counterclaim. When the master failed to address Rodriquez's allegation that
Hall's sole use, possession, and occupancy of the property precluded her from
further recovery, Rodriquez raised this issue in his motion to alter or amend.
Finally, contrary to Hall's assertion in her brief that Rodriquez failed to
present evidence of the fair market rental value of the home, Rodriquez
testified that he had researched rental rates in the neighborhood and stated
what he believed was a fair rental value based on his research. We therefore
hold Rodriquez has preserved this issue for appeal.
The rationale for
Rodriquez's argument that he was entitled to an offset for Hall's use and
occupation of the home was that he did not have to prove ouster as "a
necessary predicate for offsetting the contribution claim of a cotenant in
possession with the rental value of her use and occupation." The law,
however, states otherwise. See Watson v. Little, 224 S.C. 359, 364,
79 S.E.2d 384, 387 (1953) (noting the principle that possession by one cotenant
is the possession of all ceases "when the exclusive possession of a
cotenant becomes adverse to the right of possession by the other cotenant or
cotenants; but the hostile character of the possession must be such as to
amount to an ouster . . . and must be clearly and unmistakably established by
the evidence"); 20 Am. Jur. 2d Cotenancy and Joint Ownership, § 41,
at 172 (2005) ("Until an actual ouster is shown, the possession of the
common property by one cotenant is prima facie, or presumptively, the
possession of all.").
We agree with
Hall that Rodriquez did not meet his burden of showing she denied him access to
the home for any significant period of time after their separation. To the
contrary, Rodriquez was given a key after the locks were changed, periodically
went to the home after the parties separated, and was permitted to leave his
belongings in the home even after it appeared the parties would not ever
reconcile. See Laughon v. O'Braitis, 360 S.C. 520, 526, 602
S.E.2d 108, 111 (Ct. App. 2004) (affirming a finding that ouster by a co-tenant
was not shown because, among other factors, the appellant was not denied access
to the property).
II.
Rodriquez next challenges
the master's finding that the increase in value of the home attributable to the
partially finished condition of the 1,418-square-foot basement in the home was $30,000.00.
He contends that according to the evidence, which included the testimony of a
real estate appraiser who appraised the property before and after the
improvement, the increase in value was at most $21,270.00. The appraisals
themselves, however, show the value of the property increased from $485,000.00
to $515,000.00 during the sixteen months that elapsed between the initial
appraisal in April 2006, before the work on the basement began, and the second
appraisal in August 2007, after the work was done. Furthermore, Rodriquez
never attempted to cross-examine the appraiser about the possibility that
factors such as market fluctuation could have contributed to the increase in
value of the property during this time. We therefore hold the master's finding
that the partial finishing of the basement increased the value of the property
by $30,000.00 was supported by the evidence.
Nevertheless, it
is apparent from the master's order that although the adjustments in the
distributions to the parties were intended to account for the difference in
their respective contributions to the basement work, the calculations resulted
in overcompensating Hall. The master attributed to each party the value of the
appreciation in an amount proportional to that party's contribution to the
total cost of the work. As noted by the master, Hall contributed $10,894.86 to
the work and Rodriquez contributed $6,000.00; therefore, together the parties
spent $16,894.86, with Hall's contribution amounting to 64.486 percent of the
total cost and Rodriquez's contribution representing 35.514 percent. The
proportional increase in value of the property attributable to Hall's contribution
was $19,345.87; likewise, the portion attributable to Rodriquez's contribution
was $10,654.13. The difference, then, between the parties' respective
contributions to the total increase in value was $8,691.74. The master then
subtracted this amount from Rodriquez's distribution and added the same amount
to Hall's distribution. Subtracting the entire difference from Rodriquez's
distribution and adding it to Hall's distribution, however, would result in Rodriquez's
contribution being increased to what Hall's contribution was before the offset
and vice versa, rather than what was the desired effect of making their
contributions equal. To achieve the latter result, the offset should have been
only half of the difference, or $4,345.87. We therefore modify the
disbursements calculated by the master so that the line item entitled
"Adjustment to total to each" shows an upward adjustment of $4,345.87
for Hall and a downward adjustment in the same amount for Rodriquez. Cf. Marichris, LLC v. Derrick, 384 S.C. 345, 355, 682 S.E.2d 301, 306 (Ct.
App. 2009) (ordering a deduction from the common fund in a partition action to
effectuate the master's intention of making the parties equally responsible for
certain payments); Holroyd v. Requa, 361 S.C. 43, 60, 603 S.E.2d 417, 426
(Ct. App. 2004) ("Our courts have corrected scriveners' errors when
warranted."); 5 Am. Jur. 2d Appellate Review § 785, at 524 (2007)
(noting an appellate court may correct clerical errors and observing that
"[t]he correction of an obvious mathematical error is not barred by the
law of the case doctrine on a subsequent appeal").
III.
Finally, Rodriquez
takes issue with the master's decision to require him to pay all of Hall's
attorney's fees and costs, contending he had agreed to a partition and the only
work done by Hall's attorney in support of the common goal of the parties was
the drafting of the complaint. He further argues the master abused his
discretion in providing that any fees and costs that could not be satisfied
from his share of the sales proceeds would be reduced to a personal judgment
against him. We hold the circumstances of this case warrant modifying the
provisions in the appealed order regarding attorney's fees and costs.
In a partition
action, "[t]he court of common pleas may fix attorneys' fees in all
partition proceedings and, as may be equitable, assess such fees against
any or all of the parties in interest." S.C. Code Ann. § 15-61-110 (2005)
(emphasis added). Awards of attorney's fees in partition actions are generally
discretionary. S&W Corp. of Inman v. Wells, 283 S.C. 218, 220, 321
S.E.2d 183, 185 (Ct. App. 1984). Nevertheless, the South Carolina Supreme
Court has stated: "We think the dictates of [section 15-61-110], that
equitable principles govern the assessment of attorneys' fees, would justify
the award of such fees where the attorneys' services inure to the common
benefit of the parties in interest." Briggs v. Jackson, 275 S.C.
523, 527, 273 S.E.2d 532, 535 (1981). Furthermore, although section 15-61-110
does not expressly prohibit awarding attorney's fees in the form of a judgment
against a party, the supreme court has recognized "the authority of the
court to order the payment of the fee, through the sale of a portion of the
common property involved" as "implicit under the statute." Id. at 528, 273 S.E.2d at 535; see also Rule 71(d)(3), SCRCP ("Attorneys
fees and costs may be awarded the attorney for any party(s) from any common
fund generated by the partition to the extent that attorney's efforts benefited
all parties; otherwise, his fee shall be paid by the party(s) he represents or
from the party(s) share(s) only.").
Rodriquez did not
oppose the partition action and objected only to a judicial sale. Although
Hall prevailed in her request for a partition by judicial sale, much of the
work performed by her attorney was adversarial in nature. Nevertheless, this
work ultimately brought the matter to a resolution and benefited both parties;
therefore, a reasonable compromise would be to modify the appealed order to
provide that Hall's attorney's fees and costs be assessed equally against both
parties. Accordingly, we modify the master's order to require Rodriquez to pay
only half of Hall's attorney's fees and costs instead of the entire amount.
It is evident
from the master's order for disbursements that even without the modifications
ordered by this Court, there were no fees and costs that could not be paid from
Rodriquez's share of the sales proceeds; therefore, we decline to address Rodriquez's
argument on this issue. See Cox v. Cox, 290 S.C. 245, 248, 349
S.E.2d 92, 94 (Ct. App. 1986) (indicating an appellant must demonstrate
reversible error, which includes a showing that the alleged error was
prejudicial).
CONCLUSION
We reject Rodriquez's
argument that he was entitled to an offset for Hall's occupation of the home
after the parties separated. Although we uphold the master's determination
that the partial finishing of the basement increased the value of the property
by $30,000.00, we modify the adjustments in the master's disbursements to achieve
the intended result of making their contributions to this increase equal.
Finally, we modify the order to provide that Hall's attorney's fees and costs
be assessed equally against both parties.
AFFIRMED AS
MODIFIED.
HEARN, C.J.,
THOMAS and KONDUROS, JJ., concur.
[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.
[2] The master ordered the distribution to Rodriquez to
be reduced by $8,691.74 and the distribution to Hall increased by the same
amount.
[3] The successful bidder at the judicial sale was also
required to pay off the outstanding mortgage balance.