COURT OF APPEALS DECISION DATED AND RELEASED MARCH 4, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1543
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
RICHARD I. ANDRE,
Plaintiff-Respondent,
v.
ELEANOR M. TOBON and
NORMAN C. ANDRE,
Defendants-Appellants.
APPEAL from a judgment
and an order of the circuit court for Sawyer County: FREDERICK A. HENDERSON, Judge.
Reversed and cause remanded.
Before Cane, P.J., Myse
and Madden, JJ.
PER CURIAM. Eleanor Tobon and Norman Andre appeal a
summary judgment in a partition lawsuit that mandated a judicial sale of a
506-acre real estate parcel they co-owned as tenants in common with their
brother Richard Andre. The parcel
contains a landlocked forty-three-acre private lake. Richard sought the parcel's partition by sale. Eleanor and Norman asked for partition in
kind. The trial court ruled that the
parcel was unique and that a partition by sale would maximize the parcel's sale
value. The trial court also granted
each co-owner rights of first refusal on the sale. The trial court may grant summary judgment if Richard showed no
dispute of material fact and deserved judgment as a matter of law. See Powalka v. State Life Mut.
Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). However, we agree with Eleanor and Norman
that the parties' affidavits contain disputes of material fact. We therefore reverse the summary judgment
and remand the matter for further proceedings.
Courts of equity may
order partition by sale against the will of a landowner only if the partition
in kind would create a substantial economic loss to a co-landowner. Marshall & Ilsley Bank v. DeWolf,
268 Wis. 244, 247-48, 67 N.W.2d 380, 382 (1954). Partition in kind is the rule, partition by sale the
"extraordinary and dangerous" exception. Id. at 247, 67 N.W.2d at 382. Courts have recognized that partition by
sale, like other forced judicial sales, ordinarily brings much less than the
real estate's true value. Id.
at 249, 67 N.W.2d at 383. Moreover,
courts of equity do not have the power to require partition by sale on the
ground that it would leave the landowners better off economically than
partition in kind. Id. at
248-49, 67 N.W.2d at 383-84. Landowners
are sui generis; they are entitled to have their real estate in kind,
absent material and substantial economic prejudice to another
co-landowner. Id. Partition by sale claimants have the burden
of proof on the matter. Id.
at 248, 67 N.W.2d at 382.
Here, Eleanor's and
Norman's real estate expert claimed partition in kind physically suited the
land and would not reduce the entire parcel's overall sale value. On the other hand, Richard's experts claimed
that partition in kind would not physically suit the land and would
substantially reduce the parcel's overall sale value. Richard's expert, however, did not quantify this reduction or
support it with specific facts.
Instead, it addressed the matter in generalities. In addition, Richard had a standing offer
from Eleanor and Norman to buy Richard's undivided one-third interest at 120%
of the value at which their expert appraised the interest. This creates an inference, at least at the
summary judgment stage, that separate sales on separate parcels would give each
owner adequate sale value. Taken
together, the affidavits reveal disputed material facts on whether partition in
kind physically suited the land and on whether partition by sale would produce
a materially and substantially better economic value than partition in
kind. In sum, the parties' affidavits
did not rebut the presumption against a partition by sale, and the trial court
should have denied Richard's motion for summary judgment.
Last, we reject Richard's
argument that the trial court judgment and order was nonfinal and therefore not
appealable as a matter of right. He
states that the trial court proceedings will not be final until the trial court
confirms the sale of the property. We
agree with Eleanor and Norman that the doctrine applied in Shuput v.
Lauer, 109 Wis.2d 164, 325 N.W.2d 321 (1982), should apply by analogy
to partition by sale proceedings. The Shuput
court held that mortgage foreclosure judgments were appealable final judgments
despite the fact that the trial court would eventually need to issue a
subsequent order confirming the property's sale. The supreme court concluded that the foreclosure and the
subsequent confirmation were separate proceedings and thereby separately
appealable as a matter of right. Id.
at 172, 325 N.W.2d at 326. The trial
court's judgment and order mandating partition by sale stands in the same
position. As a result, we conclude that
the supreme court's Shuput doctrine applies to the trial court's
judgment and order mandating partition by sale, and the judgment and order was
thereby appealable as a matter of right.
By the Court.—Judgment
and order reversed; cause remanded for further proceedings consistent with this
opinion.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.