IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DENISE E. FERRY, an individual,
No. 70918-6-1 *£>
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ROBERT L. EVANS, an individual,
Appellant, XT
ALLISON SHERMAN EVANS, an
individual,
Respondent. FILED: December 22, 2014
Appelwick, J. — Denise, Robert, and Allison each own one-third shares in two lots
on Lake Sammamish. Denise sought to liquidate her interest in one of the lots, a valuable
piece of waterfront property. She moved for partition by sale, because physical partition
would violate local zoning ordinances. Allison joined Denise's motion. Robert opposed
the motion. He sought to combine the waterfront lot with the second lot—a separate, less
valuable piece of property nearby—and physically partition the two lots into three parcels.
The trial court ruled in Denise and Allison's favor.
Robert appeals. He argues that the trial court erred when it did not consider the
two lots together. In the alternative, he asserts that the trial court should have physically
partitioned the waterfront lot into three lots, rather than ordering it to be sold. He further
contends that the trial court erred in ordering the sale to be performed in a commercially
reasonable manner, rather than by auction. We affirm.
No. 70918-6-1/2
INTRODUCTION
We are asked to determine whether the trial court correctly applied the partition
statute, chapter 7.52 RCW. Under the statute, a person who holds real property as a
tenant in common with others has the right to partition of the property. RCW 7.52.010;
Friend v. Friend. 92 Wn. App. 799, 802, 964 P.2d 1219 (1998). A partition action is both
a right and an equitable remedy subject to judicial discretion. Friend, 92 Wn. App. at 803.
The trial court has great flexibility in fashioning relief under its equitable powers, jd. There
is a presumption in favor of physical partition. Id. However, a court may order partition
by sale if there is evidence to the satisfaction of the court that physical partition cannot be
made without great prejudice to the owners. RCW 7.52.080. The court may appoint one
or more referees to direct the sale. RCW 7.52.080.
FACTS
Three siblings—Denise Ferry, Robert Evans, and Allison Evans—each own a one-
third interest as tenants in common in a piece of waterfront property along Lake
Sammamish (Waterfront Lot). The Waterfront Lot consists of 16,685 square feet. It has
300 feet of shoreline and a one room wood cabin. The siblings inherited the Waterfront
Lot from their parents, and it has been in the family for generations. Growing up, the
siblings used the cabin for family activities and gatherings.
Denise and Allison now both live in California.1 As a result, their use of the cabin
has greatly diminished. Robert resides in Washington and continues to use the cabin for
recreation and gatherings with family and friends.
We refer to the parties by their first names for clarity. No disrespect is intended.
No. 70918-6-1/3
In 2008, Denise and Allison indicated that they wanted to sell their interest in the
Waterfront Lot. Since their mother's death in 2006, the sisters no longer make regular
visits to the cabin. Denise was concerned that the property was not being properly
maintained or insured in their absence. In addition, Denise, who is now in her early 70s,
needed her share of the inheritance to pay her immediate financial obligations. She
proposed that the property be sold to a third party or that Robert could purchase his
sisters' shares. At the time, the estimated value of the Waterfront Lot was roughly
$900,000. To free up cash to compensate the sisters, Denise suggested that the siblings
sell a second piece of property, which they also owned as tenants in common. The
second piece of property is a 63,048 square foot undeveloped lot above the lake (Upper
Lot).
Robert offered his sisters no more than $250,000 each and a life estate in the
property to purchase their shares in the Waterfront Lot. That amount was below fair
market value. Denise felt that a life estate was of no use to her, because she lived in
California. The siblings did not come to a successful agreement over the next several
years.
On April 17, 2013, Denise brought a partition action against Allison and Robert
seeking partition by sale of the Waterfront Lot. Denise's complaint alleged that physical
partition would result in great prejudice, because the Waterfront Lot was too small to be
legally divided under local ordinances.
On May 20, Allison filed an answer and cross claim joining Denise in seeking
partition by sale of the Waterfront Lot. Allison stated that it was in her and Denise's best
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interests to sell the Waterfront Lot, but that Robert refused to discuss selling the property
to a third party.
On June 6—seven weeks after filing her initial complaint—Denise moved to
appoint a referee to manage the partition by sale of the Waterfront Lot. Robert had not
yet responded to Denise's complaint.2 Allison joined Denise's motion in relevant part.
On June 10, Robert moved to strike Denise's motion to appoint a referee as an
improperly noted dispositive motion. He asserted that he was entitled to more time to
present his defense and that oral argument was required.
On June 14, Robert filed an answer and counterclaim to Denise's complaint. He
requested that the court consider the Waterfront Lot together with the Upper Lot. The
Waterfront Lot and the Upper Lot are close in proximity but are separated by a two lane
road, a bike trail, a green belt, and a third party tax parcel. Robert asked that the two lots
be physically partitioned to create three separate lots. He sought to retain the Waterfront
Lot for himself. The Upper Lot is valued between $273,000 and $650,000. The
Waterfront Lot is valued between $1,116,000 and $2,000,000.
The court denied Robert's motion to strike but set Denise's motion to appoint a
referee for oral argument on August 30, 2013.
On July 25, Robert filed a response to Denise's motion. He repeated his request
that the lots be considered together and physically partitioned. He further requested
additional time for discovery on how and whether the property could be partitioned.
2 It appears from the record that Denise did not move for default judgment. The
record is silent on whether Robert had filed a notice of appearance at that point in time.
No. 70918-6-1/5
On August 30, the court heard argument on the motion to appoint a referee.
Denise asserted that sale of the Waterfront Lot was proper, because it could not be legally
subdivided under city code. She further argued that the lots should not be considered
together, because they are not contiguous and could not be divided fairly. Robert
asserted that the court could direct unequal partition of the land and adjudge
compensation to the siblings who received an inferior share. When the court inquired
about Robert's ability to compensate his sisters, his counsel said "there has been a
willingness on the part of my client to pay compensation to try to preserve this cabin in
the family." Counsel did not provide further specifics as to Robert's ability to pay, nor did
he address Robert's prior unwillingness to pay fair market value for his sisters' shares.
Robert also proposed that the court could physically subdivide the Waterfront Lot
into three lots. He moved to introduce maps from the King County website, which
displayed lots in the surrounding area that were smaller than the city code minimum.
Denise objected to the maps' introduction. The court sustained, noting that, "without
knowing specifically about this case, I know generally that there are many historical
reasons why lots are bigger or smaller and that lot sizes have historically been created
larger and larger as the Growth Management ActP] came in. I have no idea how that
applies here."
In addition, Robert requested a continuance to conduct additional discovery to find
out if a variance was possible. He maintained that he had insufficient time to conduct
discovery on "whether the attorney representation about the lot size requirement is even
true." Denise opposed Robert's motion for additional discovery. She noted that the sole
3 Chapter 36.70A RCW.
No. 70918-6-1/6
issue in her complaint was the inability to subdivide the Waterfront Lot based on local
zoning ordinances. She further observed that Robert had almost 20 weeks since she
filed her complaint, during which he could have conducted discovery on the zoning
ordinances.
On September 17, 2013, the court granted Denise's motion to appoint a referee to
manage the sale of the Waterfront Lot. The court's order stated that, as "alleged in the
Complaint and established by evidence to the satisfaction of the Court, the [Waterfront
Lot] is so situated that partition in kind cannot be made without great prejudice to the co-
owners." The court ordered the referee to sell the Waterfront Lot in a commercially
reasonable manner. The order did not address the Upper Lot or Robert's request for
additional time for discovery. Robert appeals.
DISCUSSION
Robert argues that the trial court erred in ordering partition by sale of the Waterfront
Lot. He maintains that the trial court should have included the Upper Lot in the partition.
In the alternative, he asserts that the trial court erred in ordering sale of the Waterfront
Lot, rather than physical partition. This is so, he contends, because the trial court
improperly restricted his presentation of evidence to support physical partition.
I. Exclusion of Upper Lot
In a partition action, the trial court has the discretion to consider multiple lots
together. See, e.g.. von Herberq v. von Herberq, 6 Wn.2d 100, 122-23, 106 P.2d 737
(1940). In von Herberq. the trial court considered multiple commonly owned properties
together in one action. JdL at 120-21. The court allocated the properties such that the
parties did not receive an equal amount of square footage. ]d. at 120. Instead, the court
No. 70918-6-1/7
divided the property based on each party's responsibility for shared debts, their respective
earning potential, and encumbrances on the property. ]p\ at 120-21. The Washington
Supreme Court affirmed, noting that courts may treat separate properties as one estate
for the purpose of division and allotment when no injustice results. Id. at 124. There, the
trial court's division was equitable, because it"enable[d] each cotenantto receive property
in exact proportion and value to his or her respective interest in the commonly owned
property." jd.
Physically partitioning the lots as Robert proposes—awarding him the Waterfront
Lot and dividing the Upper Lot between Denise and Allison—would result in a vastly
unequal allocation of property value. Robert asserts that the court could remedy this
inequality by ordering compensation to the party or parties who receive a lesser share.
When property cannot be fairly divided, the trial court may adjudge compensation to be
made by one party to another. RCW 7.52.440; In re Marriage of Wintermute. 70 Wn. App.
741, 745, 855 P.2d 1186 (1993). This creates an equitable lien on the property in the
nature of a vendor's lien. See Wintermute, 70 Wn. App. at 745,
Although Robert stated that he was willing to compensate his sisters, he offered
no evidence that he was able to do so. In fact, as the trial court noted, this action
apparently arose from Robert's inability or refusal in 2008 to purchase his sisters' interests
at fair market value. And, fair market value has substantially increased since that time.
The trial court is permitted, but not obligated, to consider two lots together in a partition
action. See, e.g., Friend, 92 Wn. App. at 803. Here, the equities are not so strong in
No. 70918-6-1/8
Robert's favor that we can say the trial court abused its discretion when it declined to
consider the two lots together.4
II. Great Prejudice from Physical Partition
Robert maintains that, even if the Waterfront Lot is considered alone, the trial court
erred in ordering a partition by sale, rather than a physical partition.
Due to the presumption in favor of physical partition, the trial court could order
partition by sale only if it found that physical partition would result in great prejudice to the
siblings. See RCW 7.52.080. Physical partition results in great prejudice if it greatly
reduces the value of the cotenants' interests or destroys the property's usefulness.
Heqewald v. Neal. 20 Wn. App. 517, 526-27, 582 P.2d 529 (1978); Friend, 92 Wn. App.
at 803. For example, in Friend, the landowners sought to physically partition two plots of
land into four subplots, each of which would be smaller than the minimum size under local
zoning laws. 92 Wn. App. at 801. The county intervened, arguing that physical partition
violated its zoning requirements. Id. at 800. The trial court ruled in favor of the county.
Id. at 802. The Court of Appeals affirmed, finding that the conflict with local zoning
requirements prejudiced the landowners. Id. at 804-05. Under those circumstances,
partition by sale was the appropriate remedy. Id.
Here, the Sammamish Municipal Code (SMC) provides that shoreline lots created
through subdivision shall have a minimum size of 12,500 square feet. SMC
4 Robert argues that the court erred in "completely ignoring" the Upper Lot.
However, Robert did not ask the trial court to independently partition the Upper Lot. Thus,
the court was not required to specifically address it. We further note that, had the court
exercised its discretion to combine the two lots for partition, it also had the discretion to
determine which parcel went to which sibling. See von Herberg, 6 Wn.2d at 123 ("'[N]o
party has a right to insist that his share or purpart be allotted to him wholly out of one of
several parcels or tracts.'" (quoting C.J. Partition § 585, at 503 (1929))).
8
No. 70918-6-1/9
25.07.080(6)(b). The Waterfront Lot is 16,685 square feet in size. It cannot be subdivided
in compliance with city zoning code. The trial court thus found that physical partition
would result in great prejudice.
Robert argues that this was error, because local zoning does not constrain the
court's mandate to physically subdivide property under the partition statute. But, Friend
established that "divisions made under the partition statute are not exempt from land use
regulations." 92 Wn. App. at 804.
Robert asserts that Friend is distinguishable, because the city of Sammamish did
not object to partition of the Waterfront Lot. This distinction is irrelevant. The Friend court
did not base its holding on the county's role in the partition action. See id. at 804-05.
Rather, it was the zoning violation that prejudiced the landowners. See id. The same is
true here. The evidence before the court showed that physical partition of the Waterfront
Lot would violate local zoning ordinances.
Robert did not present evidence to the contrary. However, he argues that the trial
court improperly restricted his presentation of evidence in two ways.
First, he argues that the trial court erred in refusing to take judicial notice of the
King County maps he offered at the hearing. He asserts that the maps, which displayed
lakefront lots smaller than 12,500 square feet, suggested that the Waterfront Lot could be
physically partitioned.
We review a trial court's evidentiary rulings for abuse of discretion. Cox v.
Spangler. 141 Wn.2d 431,439, 5 P.3d 1265, 22 P.3d 791 (2000). Courts may take judicial
notice of facts within the common knowledge of the community that are not subject to
reasonable dispute. ER 201(b)(1); see Hegewald v. Neal, 28 Wn. App. 783, 786, 626
No. 70918-6-1/10
P.2d 535 (1981). For example, a court may take judicial notice of inflationary trends.
Hegewald, 28 Wn. App. at 786. However, it would be inappropriate to use judicial notice
to apply such trends to a specific property, jd.
Robert offered the maps to dispute Denise's assertion that physical partition was
not legally possible. But, the maps showed only that certain lots did not conform to current
zoning regulations. They did not explain why those lots are nonconforming. Even if they
had, the court could not take judicial notice of other nonconforming lots to establish the
availability of a variance on that particular lot. See id The trial court did not abuse its
discretion in excluding the maps.
Second, Robert asserts that the trial court erred in denying his motion for additional
discovery. He maintains that the discovery would have helped to understand whether the
Waterfront Lot could be physically partitioned in conformity with local zoning laws.
Under CR 56(f), "[sjhould it appear from the affidavits of a party opposing the
motion that he cannot, for reasons stated, present by affidavit facts essential to justify his
opposition, the court may . . . order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had." We review a trial court's denial ofa CR
56(f) motion for abuse ofdiscretion. MRC Receivables Corp. v. Zion, 152Wn. App. 625,
629, 218 P.3d 621 (2009). "The trial court may deny a motion for a continuance when
(1) the requesting party does not have a good reason for the delay in obtaining the
evidence, (2) the requesting party does not indicate what evidence would be established
by further discovery, or (3) the new evidence would not raise a genuine issue of fact.'"
Blda. Indus. Ass'n of Wash, v. McCarthy, 152 Wn. App. 720, 742-43, 218 P.3d 196 (2009)
(quoting Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003)).
10
No. 70918-6-1/11
At the time of the hearing, Robert had not conducted legal research or discovery
on the availability of a variance or the likelihood that one would be granted in this case.
His only explanation for failing to do so was that he had inadequate time. But, Denise's
legal theory was clear from the start. She alleged one central issue: that local zoning
ordinances prohibited physical partition of the Waterfront Lot. The relevant zoning
ordinance appears in the Sammamish Municipal Code. SMC 25.07.080(6)(b). Robert
had four and a half months between Denise's complaint and the motion hearing, during
which he could have conducted research and any necessary discovery. He did not do
so. Nor does he provide good cause for his failure to timely research or seek evidence
on the single, clear issue in this case. The trial court did not abuse its discretion in denying
his motion for additional discovery.
Finally, Robert argues that, if partition by sale was proper, the trial court erred in
ordering the sale to be conducted in a commercially reasonable manner, rather than by
auction. RCW 7.52.270 provides that "[a]ll sales of real property made by the referees
shall be made bv public auction." (Emphasis added.) This language is mandatory.5
However, Robert did not challenge the method of sale below. We may refuse to review
any claim of error that was not raised in the trial court. RAP 2.5(a). Robert has not
preserved his error for review.
5 Contrary to Denise's assertion, the trial court does not have the discretion to
ignore the mandatory form of sale provided in the statute. RCW 7.52.270. And, her
assertion that sale by public auction is "outdated" ignores the legislatively mandated and
much used Deeds of Trust Act, which requires the same method of sale. RCW
61.24.040(f).
11
No. 70918-6-1/12
CONCLUSION
The trial court properly exercised its discretion to exclude the Upper Lot and
consider the Waterfront Lot alone. Denise demonstrated that physical partition of the
Waterfront Lot would violate local zoning code, and Robert established no law or facts to
the contrary. Thus, the trial court properly found that physical partition of the Waterfront
Lot could not be achieved without great prejudice to the owners. The trial court did not
abuse its discretion in ordering partition by sale of the Waterfront Lot.
We affirm.
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WE CONCUR:
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