Cason v. Cason
Filed 4/22/13 Cason v. Cason CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
GREGORY B.H. CASON,
Plaintiff and Appellant,
v.
THERESA A.H. CASON et al.,
Defendants and Respondents.
D059676
(Super. Ct.
No. ECU01642)
APPEAL from
a judgment of the Superior Court
of
County, Barrett J. Foerster and Donal B. Donnelly,
Judges. Affirmed.
Plaintiff
Gregory B.H. Cason (Plaintiff) appeals a judgment apportioning attorney fees
and costs incurred in his partition action against defendants Theresa A.H. Cason,
also known as Theresa H. Schoneman, Donald S. Cason, David B.H. Cason and Diane
Cason, as trustees of the David Cason and Diane Cason 2000 Family Trust
(together Defendants). On appeal,
Plaintiff contends the trial court abused its discretion by apportioning
attorney fees and costs incurred in the partition action for the common benefit
of the parties on an equitable basis of 50 percent to Plaintiff and 50 percent
to Defendants.
FACTUAL
AND PROCEDURAL BACKGROUND
On October
30, 2003, Plaintiff filed a complaint requesting partition of certain real
property owned by Plaintiff and Defendants in cotenancy, commonly known as
"Elder Canal, Gates 9 & 10" and consisting of about 160 acres
(Property). The complaint alleged
Plaintiff and each of the three Defendants owned an undivided one-fourth
interest in the Property. It sought
partition by sale of the Property, alleging a sale would be more equitable than
division in kind because the Property is farm land and too small to be divided
into parcels that can be economically farmed.
Defendants answered the complaint, opposing partition by sale and, in
the event the trial court ordered partition of the Property, requesting that
Plaintiff be allotted a parcel according to his one-fourth interest and
Defendants be allotted a parcel according to their collective three-fourths
interest.
On May 11, 2005, the trial court entered
an interlocutory judgment directing
partition of the Property according to the parties' interests and ordering that
a referee be appointed to recommend division and partition the Property. The court further ordered that "if a
division of the [Property] is impracticable or that a sale of the [Property],
or any portion thereof, would be more equitable to the parties, the referee
shall so state in the report and set forth recommendations as to the sale of
[the Property], or portion thereof, and the Court shall enter such further
orders as the Court may deem proper and appropriate."
The
appointed referee subsequently issued a report finding there were four
plausible methods to partition the Property: (1) sell the Property and
distribute the proceeds to the parties on a pro rata basis; (2) have those
parties who do not want to sell the Property purchase the interests of those
parties who do want to sell it; (3) divide the Property into one 120-acre
parcel and one 40-acre parcel; and (4) divide the Property into four 40-acre
parcels. The referee recommended the
fourth option as the best long-term solution.
After receiving the responses of the parties to the referee's report,
the trial court ordered the referee to conduct a further evaluation of the
Property. In his second report, the
referee recommended that Plaintiff be awarded the southeast quarter of the
Property because of drop box and harvesting issues.
On November
21, 2006, the trial court issued an order directing the Property to be
partitioned in kind into four parcels of 40 acres each within one year and, if
the partition was not accomplished within one year, the Property was to be
partitioned into one parcel consisting of the southeast one-fourth and one
parcel consisting of the remainder of the Property. However, a subsequent survey apparently
showed the Property consisted of only about 159, and not 160, acres. Because zoning ordinances of Imperial
County (County) require farm land
parcels to be at least 40 acres, County apparently rejected the proposed
division of the Property into four separate 40-acre parcels.
On April 3, 2008, based on counsel's
representations that County rejected partition of the Property into four
separate parcels, the trial court issued an order directing division of the
Property into two parcels: (1) a southeast quarter consisting of 40 acres in
compliance with County's zoning ordinances; and (2) the remaining property
(consisting of about 119 acres). The
40-acre parcel was awarded to Plaintiff and the other parcel was awarded to
Defendants. The court reserved
jurisdiction to consider a motion on the issue of whether owelty should be
awarded.
The parties
stipulated to the appointment of an appraiser, Matt Ramsey, to report on the
amount of owelty Plaintiff may owe Defendants.
The appraiser determined Plaintiff's 40-acre parcel was worth $350,000
and Defendants' 119-acre parcel was worth $680,000. Plaintiff objected to the appraisal and
requested that owelty be determined based instead on an appraisal made by
William S. Smith. Smith's appraisal
valued Plaintiff's parcel at $5,200 per acre and Defendants' parcel at $5,000
per acre. Following an evidentiary
hearing, the trial court issued an order finding Plaintiff owed Defendants
owelty of $7,250, adopting the valuations in Smith's appraisal.
Pursuant to
Code of Civil Procedure sections 874.010 and 874.040,
Plaintiff filed a motion for apportionment of attorney fees and costs incurred
in the partition action. Defendants
filed a motion for apportionment of costs only and requested those costs be
apportioned evenly between Plaintiff (50 percent) and Defendants (50 percent). Defendants opposed Plaintiff's motion for
apportionment of attorney fees and costs because they were not incurred for the
common benefit of the parties.
On September 2, 2010, the trial court
heard counsel's arguments on both motions.
The court granted Plaintiff's request for attorney fees and costs, which
"shall be equitably apportioned between the parties with Plaintiff being
responsible for fifty percent thereof and the remaining three defendants being
responsible for the remaining fifty percent." The Court found that "though all parties
enjoyed a common benefit in the pursuit of the partition action, that benefit
was not equal between them. Only
Plaintiff received a complete partition of his interest. The remaining [D]efendants' interests in the
subject real property have not been individually partitioned." The court set a further hearing on
Defendants' motion for apportionment of attorney fees, if filed, and their
motion for apportionment of costs.
Defendants
subsequently filed a motion for apportionment of attorney fees and costs,
requesting they be apportioned evenly between Plaintiff (50 percent) and
Defendants (50 percent). Plaintiff
opposed their motion, arguing the motion was filed late. On March
9, 2011, the court issued a written order apportioning attorney
fees and costs incurred by the parties in the partition action, to be
apportioned 50 percent to Plaintiff and 50 percent to Defendants. On May
9, 2011, the court entered a final judgment partitioning the
Property into two parcels as described above and apportioning the parties'
attorney fees and costs 50 percent to Plaintiff and 50 percent to Defendants.
DISCUSSION
I
"The
standard of review on issues of attorney's fees and costs is abuse of
discretion. The trial court's decision
will only be disturbed when there is no substantial evidence to support the
trial court's findings or when there has been a miscarriage of justice. If the trial court has made no findings, the
reviewing court will infer all findings necessary to support the judgment and
then examine the record to see if the findings are based on substantial
evidence." (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545, fns. omitted.)
When an
appellant asserts there is insufficient evidence to support a factual finding,
we apply the substantial evidence standard of review, requiring two steps. "First, one must resolve all explicit
conflicts in the evidence in favor of the respondent and presume in favor of
the judgment all reasonable
inferences. [Citation.] Second, one must determine whether the
evidence thus marshaled is substantial.
While it is commonly stated that our 'power' begins and ends with a
determination that there is substantial evidence [citation], this does not mean
we must blindly seize any evidence in support of the respondent in order to
affirm the judgment. . . .
[Citation.] '[I]f the word
"substantial" [is to mean] anything at all, it clearly implies that
such evidence must be of ponderable legal significance. Obviously the word cannot be deemed
synonymous with "any" evidence.
It must be reasonable . . . , credible, and of solid value
. . . .' [Citation.] The ultimate determination is whether a
found for the respondent based on the whole
record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627,
1632-1633, fns. omitted.) "[T]he
power of an appellate court begins
and ends with the determination as to
whether, on the entire record, there
is substantial evidence, contradicted or uncontradicted, which will support the
determination, and when two or more inferences can reasonably be deduced from
the facts, a reviewing court is without power to substitute its deductions for
those of the trial court.
of no consequence that the trial court believing other evidence, or drawing
other reasonable inferences, might have reached a contrary conclusion." (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
II
and Costs
Plaintiff
contends the trial court abused its discretion by apportioning attorney fees
and costs incurred for the common benefit of the parties on an equitable basis
50 percent to Plaintiff and 50 percent to Defendants rather than in proportion
to the interests of the parties in the property. He asserts there is insufficient evidence to
support the court's apportionment of attorney fees and costs.
A
Section
874.040 provides: "Except as otherwise provided in this article, the court
shall apportion the costs of partition among the parties in proportion to their
interests or make such other apportionment as may be equitable." The Law Revision Commission Comment to
section 874.040 states:
"Although normally the costs of partition are
apportioned in proportion to the interests of the parties, there may be cases
in which some other arrangement will be equitable. Where litigation for the common benefit
arises among only some of the parties, or where the interests of the parties in
all items, lots, or parcels of property are not identical, the court may
segregate the costs of partition to the extent practicable and apportion a part
among particular parties only."
(Cal. Law Revision Com. com., 17A West's Ann. Code Civ. Proc. (1980 ed.)
foll. § 874.040, p. 586.)
Section 874.010 provides in pertinent part: "The costs
of partition include: [¶] (a) [r]easonable attorney's fees incurred or paid by
a party for the common benefit."
"[S]ection
874.040 broadly allows the trial court to 'make such other apportionment as may
be equitable.' " (
1024.) "There is no ambiguity in
the language of section 874.040. It
simply states that the trial court must apportion the costs incurred in a
partition action based upon either
the parties' interests in the property, or equitable considerations. The statute's broad language does not limit
the trial court's equitable discretion . . . ." (Id.
at p. 1025.)
B
After the
trial court issued its partition and owelty orders, Plaintiff filed a motion
for apportionment of attorney fees and costs incurred in the partition
action. Defendants filed a motion for
apportionment of costs only, arguing attorney fees were not incurred for the
common benefit of the parties as required for apportionment. Defendants requested those costs be
apportioned evenly between Plaintiff (50 percent) and Defendants (50 percent). Defendants opposed Plaintiff's motion for
apportionment of attorney fees and costs, arguing they were not incurred for
the common benefit of the parties.
The trial
court heard counsel's arguments on both motions. Plaintiff argued the court should apportion
attorney fees and costs in proportion to the parties' interests in the
Property. Defendants, in turn, argued
the parties should bear their own attorney fees because they were not incurred
for the common benefit of the parties.
The trial court stated it was unable to find any reported case involving
a partial partition as involved in this case.
It noted: "We have three co-tenants on one side who did not receive
the same benefit that [Plaintiff] received.
They didn't get their interest[s] partitioned [primarily because the
County would not allow a three-way partition of the remaining 119-acre
parcel]." Nevertheless, Defendants
"received a benefit [from the partition action] by ridding themselves of
the Plaintiff, but they didn't receive a full partition themselves." Discussing Finney, the court stated that although Finney discussed two examples of equitable apportionment described
in the California Law Revision Commission's comment to section 874.040,
instances in which equitable apportionment could be made under section
874.040. Plaintiff agreed. The trial court concluded that in this case
it had the power under section 874.040 to equitably apportion attorney fees and
costs. The court explained its reasoning
for apportioning the attorney fees and costs 50 percent to Plaintiff and 50
percent to Defendants, stating:
"As best as I can read the cases, I feel on the one
hand that [section] 874.040 allows the Court to divide fees and costs on an
equitable basis where there has not been [a] completely equal partition among
all the parties. And in this case, that
has not happened. Plaintiff got his
share out. The Defendants were left with
119 acres that could not be divided in kind because of the acreage requirements
by the County of Imperial, 40 acreage minimum requirement. And so that, coupled with the fact that the
litigation itself has always been between the Defendants as a group which
represents in effect one united interest, and the Plaintiff is the other
interest. That this mandates upon the
court an apportionment not as to the interests, but as to what is
equitable. And I feel what is equitable
in this case is what has been proposed by the Defendants; that the fees and the
costs should be borne equally. In other
words, 50 percent [to Plaintiff and] 50 percent [to Defendants]
. . . ."
The court's
minute order granted Plaintiff's request for attorney fees and costs, which
"shall be equitably apportioned between the parties with Plaintiff being
responsible for fifty percent thereof and the remaining three defendants being
responsible for the remaining fifty percent." The court found that "though all parties
enjoyed a common benefit in the pursuit of the partition action, that benefit
was not equal between them. Only
Plaintiff received a complete partition of his interest. The remaining [D]efendants' interests in the
subject real property have not been individually partitioned." The court set a further hearing on
Defendants' motion for apportionment of attorney fees, if filed, and their motion
for apportionment of costs. The court
reserved the issue of whether Defendants could, at that stage, file a motion
for apportionment of attorney fees.
Defendants
subsequently filed a motion for apportionment of attorney fees and costs,
requesting they be apportioned evenly between Plaintiff (50 percent) and
Defendants (50 percent). Plaintiff
opposed their motion, arguing the motion was filed late. At the beginning of the hearing on the
motion, the trial court announced its tentative ruling that it would confirm
the prior trial judge's order equally apportioning attorney fees and costs
(i.e., "50-50") between Plaintiff and Defendants.
court granted Defendants' motion for apportionment of attorney fees and costs,
apportioning them evenly between Plaintiff (50 percent) and Defendants (50
percent). The court issued a written
order apportioning attorney fees and costs incurred by the parties 50 percent
to Plaintiff and 50 percent to Defendants.
The court then entered a final judgment partitioning the Property into
two parcels as described above and apportioning the parties' attorney fees and
costs 50 percent to Plaintiff and 50 percent to Defendants.
C
We conclude
the trial court did not abuse its discretion in apportioning attorney fees and
costs because there is substantial evidence to support the trial court's
finding that Plaintiff and Defendants did not benefit equally from the
partition action and therefore the attorney fees and costs incurred in the partition
action should be apportioned 50 percent to Plaintiff and 50 percent to
Defendants, rather than in proportion to their individual interests (i.e., 25
percent to Plaintiffs and 75 percent to Defendants). As noted above, the court partitioned the
Property by dividing the Property into two parcels: (1) a southeast quarter
consisting of 40 acres awarded to Plaintiff; and (2) the remaining 119 acres
awarded to Defendants. Because the
remaining 119-acre parcel could not be divided into three parcels under County's
zoning ordinances, the court could not, and did not, award each of the three
Defendants a separate parcel in proportion to their respective interests in the
Property. Therefore, although Plaintiff
received a separate 40-acre parcel in the partition action, the three
Defendants did not receive a separate parcel, but instead each received a
one-third cotenancy interest in the remaining 119-acre parcel. To compensate for the difference in the
per-acre value of the particular real property the parties received, the court
awarded Defendants owelty of $7,250.
Despite
that owelty, the trial court found the parties did not benefit equally from the
partition, finding, in effect, the value of the real property held by
Defendants in cotenancy that could not be divided into three parcels was less
than the value of the real property held by Plaintiff separately. Based on our review of the whole record, we
conclude there is substantial evidence to support that finding. The record shows County rejected the court's
initial proposal for an equal four-way division of the Property because it
consisted of only 159 acres and a minimum of 40 acres was required for farm
land parcels under its zoning ordinances.
Therefore, the court adopted an alternative partition, awarding
Plaintiff his own 40-acre parcel and Defendants the remaining 119-acre parcel
in cotenancy. The court could reasonably
infer from County's zoning ordinances and the nature of cotenancy that the
value received by each of the three Defendants in the partition action was not
equal to, and was in fact less than, that received by Plaintiff. First, the remaining 119-acre parcel could
not be divided into three separate parcels in the future. Rather, it could be divided into only two
parcels in the future, which presumably could cause difficulty in apportioning
that parcel in the future among the three Defendants. Second, any future partition action involving
Defendants presumably would result in significant attorney fees and costs,
which Plaintiff would not suffer because he already received a "full
partition" of his interest in the Property. The court properly found Plaintiff received,
in effect, a "full partition" of his interest and Defendants
received, in effect, only a "partial partition" of their interests. The trial court could reasonably find the
parties' interests and benefits from the partition action were not identical
after the action. The trial court
reasonably found that Plaintiff and Defendants did not benefit equally from the
instant partition action and therefore under section 874.040 the attorney fees
and costs incurred in the partition action should be apportioned equitably and
not in proportion to the parties' interests in the Property.
Furthermore,
based on the whole record in this case, we cannot conclude the trial court
abused its discretion by finding an equitable apportionment of attorney fees
and costs was 50 percent to Plaintiff, who received a significantly greater
benefit, and 50 percent to Defendants, who received a significantly lesser
benefit, from the partition action. The
court could also reasonably infer that because there were, in effect, two sides
represented in this partition action (i.e., Plaintiff on one side and
Defendants on the other), it would be equitable for each side to bear one-half
of the attorney fees and costs incurred in the action. Therefore, the court did not abuse its
discretion by equitably apportioning one-half of the attorney fees and costs to
Plaintiff and one-half to Defendants.
Plaintiff
does not cite any case showing the trial court abused its discretion by
apportioning the attorney fees and costs incurred in this case. Finney
v. Gomez, cited by Plaintiff, is not factually or legally apposite to this
case. In that case, the trial court ordered
a property owned equally by two cotenants to be partitioned by sale with the
net proceeds (e.g., after reimbursement of the parties for expenses advanced
beyond their proportionate interests) to be divided in proportion to their
interests in the property (i.e., equally).
(Finney v. Gomez,
531-533.) However, the court awarded the
petitioning cotenant 100 percent of the attorney fees and costs incurred in the
partition action. (Id. at p. 533.) On appeal,
no substantial evidence to support an equitable apportionment of attorney fees
and costs awarding the petitioning cotenant all of his attorney fees and costs,
the trial court abused its discretion. (
nor the complaint suggested Gomez had any more of an interest in the property
and it certainly contained no evidence suggesting he had a 100 percent interest
in the property." (
concluded: "[T]here is no substantial basis for awarding fees and costs in
this case other than on the parties' proportion of interest in the
property." (Id. at p. 550.) Accordingly,
it reversed the judgment and remanded the case for the trial court to apportion
the attorney fees and costs equally between the parties. (Id.
at p. 551.)
Because, as
discussed above, Plaintiff and Defendants did not receive the same benefit from
the partition action, Finney v. Gomez
is inapposite to this case and does not persuade us to reach a contrary
conclusion. The trial court found
Plaintiff received a "full partition" and Defendants received only a
"partial partition." Also,
there were two sides to this action (i.e., Plaintiff versus Defendants). Given the substantial evidence to support the
trial court's apportionment of attorney fees and costs in this case, we
conclude Finney is factually and
legally inapposite. Plaintiff does not
substantively address any other case showing the trial court abused its
discretion in this case.
Assuming arguendo,
as Plaintiff apparently argues, there is a general preference under section
874.040 for apportioning attorney fees and costs in proportion to the parties'
interests in the property, he does not show the trial court abused its
discretion by not applying that general preference in the circumstances in this
case. Because there is substantial
evidence to support the court's equitable apportionment of attorney fees and
costs, the court was not bound to apply any such general preference. Section 874.040 expressly authorizes a trial
court to apportion attorney fees and costs incurred in a partition action as it
considers equitable in its discretion.
"[Section 874.040] simply states that the trial court must apportion
the costs incurred in a partition action based upon either the parties' interests in the property, or equitable
considerations. The statute's broad
language does not limit the trial court's equitable discretion
. . . ." (
To the extent Plaintiff argues there is substantial evidence to support
a different apportionment or that the trial court should have made different
inferences or findings based on the equitable considerations in this case, he
misconstrues and/or misapplies the substantial
evidence and abuse of discretion standards of review that apply in this
appeal.
DISPOSITION
The
judgment is affirmed. Defendants are
entitled to their costs on appeal.
McDONALD,
J.
WE CONCUR:
BENKE,
Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] All
statutory references are to the Code of Civil Procedure.
name="_ftn2" title="">[2] Because
Plaintiff does not dispute the trial court's determination of the amounts of
attorney fees and costs incurred for the common benefit of the parties, we need
not, and do not, set forth the specific amounts apportioned by the court.
