Thompson v. Mitchell
This text of 429 So. 2d 388 (Thompson v. Mitchell) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This is an appeal from an order finding that certain property owned by the parties as tenants in common is indivisible without prejudice to the owners, and ordering it sold. We reverse because we conclude the record substantiates the report of the statutory commissioners recommending partition in kind based on lack of prejudice.
The parties in this case are the heirs of Alvin Thompson, Sr., who died intestate, leaving a tract of land consisting of approximately 200 acres. Alvin Sr. had seven children: Annie Mae, Robert, Alvin Jr., Louise, Mattie, Ralph, and Willie. Willie predeceased Alvin Sr. leaving seven children of her own. The appellees, Annie Mae and two of Willie’s children, filed a complaint for partition and sale, alleging that the property was not subject to partition in kind.1
Pursuant to § 64.061, Florida Statutes, a commission was appointed to make the partition or report that such a division was not possible without prejudice to the owners. The commissioners studied the land and determined that it could be divided into parcels approximately equal in value. As required by the statute,2 the commission made the partition and reported it in writing. The report included a plat of the two hundred acres depicting the proposed division and the appraised value of each parcel.3 As directed by the order appointing the commission, one parcel was set aside for Alvin Jr., Louise and Mattie. This parcel contained the “old homestead” where these three had lived since Alvin Sr. bought the property.4 Also pursuant to the court’s order, the parcels set aside for Annie Mae and Robert each contained the mobile home sites where they were living. An unoccu[389]*389pied forty six acre parcel was set aside for Willie’s heirs, and an unoccupied tract was assigned to Ralph.
Appellees filed an exception5 to the report alleging:
1. ... they do not feel that the “46 acres” is equal to one-seventh of the total value of the estate;
2. All of the plaintiffs feel that the value of their property would be diminished because of the limited access.
3. All of the plaintiffs feel that the property can not be sold in a subdivided state and even if it could be, it would be at a greatly reduced price.
After a hearing, the court entered the judgment appealed, ordering that the entire tract be sold at auction.6
The decision of the lower court is, of course, presumptively correct and not reversible if supported by competent substantial evidence. We have reviewed the record here, however, and find the evidence does not support the conclusion (required by the statute as a condition for sale)7 that the property is not susceptible to partition in kind without prejudice to the owners.
The only evidence controverting the commission’s report came from appellee Erma Ward. Her testimony shows unsupported, subjective doubts about her ability to rent her property, and her opinion that “you can’t hardly get to it.”8 To the contrary, there was, in addition to the commission’s report, the unrebutted testimony of two of the commissioners. They testified that [390]*390each of the parcels were so close to being equal in value that one could be traded for another. One commissioner stated specifically that they had considered the need for easements in appraising the various properties. There was no evidence that the creation of easements would require expenses not contemplated by the commission. On the contrary, the evidence showed that an existing road across the property could serve as an easement. Appellants testified further that they had no objection to granting easements across their property so that the others would have access. Finally, even Annie Mae testified that it was her desire to retain her mobile home with one or two acres and sell the rest of her share. However, the final order does not provide for any such reservation.
Suits in partition are governed by Chapter 64, Florida Statutes, and derive from equity jurisdiction. Unless a properly foundationed determination is made that property cannot be partitioned in kind without prejudice, an order of sale may not be entered. § 64.061(4), supra; Hosle v. Maasbrook, 120 So.2d 794 (Fla. 3d DCA 1960). In this case, the trial court, sitting as chancellor, did find that the property could not be so partitioned. However, as indicated by the recitations above, the evidence does not support the finding. We do not overlook the broad discretion of the trial court in such matters, nor do we hold that a commission’s report is conclusive. We determine only that in this case the objections to the report were not well founded,9 and the court therefore erred in ordering the property sold.
Reversed.
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Cite This Page — Counsel Stack
429 So. 2d 388, 1983 Fla. App. LEXIS 18897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-mitchell-fladistctapp-1983.