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Cummings v. Dessel

California Court of Appeals, First District, Fourth Division

July 19, 2017

GAYLE S. CUMMINGS, Plaintiff and Respondent,
v.
JENNIFER DESSEL et al., Defendants and Appellants.

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         Trial Court: Humboldt County No. DR110625 Honorable W. Bruce Watson Judge

          Counsel for Defendants and Appellants Jennifer Dessel and Emily Seal Jennifer Dessel, in pro. per.; and Emily Seal, in pro. Per.

          Counsel for Plaintiff and Respondent Gayle S. Cummings Floyd Law Firm, Bradford C. Floyd and Carlton D. Floyd.

          Rivera, J.

         Defendants Jennifer Dessel and her daughter, Emily Seal, were half-owners of an investment property; plaintiff Gayle S. Cummings owned the other half. After disputes arose, Cummings sued seeking partition of the property. Following a bench trial, and over the objection of Dessel and Seal, the court ordered partition of the property by the appraisal method-that is, each half-owner could bid to purchase the other half-owner's interest, with the minimum bid set by appraisal. Dessel and Seal appealed.

         In the published portion of the opinion, we conclude the trial court erred when it ordered partition of the property by appraisal because the parties had not agreed to that method, as is required by the statute. In the unpublished portion of the opinion, we conclude defendants have not shown the error was prejudicial. We also reject defendants' contention that the court abused its discretion in denying their request to continue the trial. Accordingly, we shall affirm the judgment.

         I. BACKGROUND

         A. The Property

         In 2009, Dessel, Seal, and Cummings agreed to together purchase a parcel of land containing a relatively small and dilapidated residence with a carport. The parcel was located at 3950 Fieldbrook Road, in Fieldbrook, California (the property), and the parties' plan was to remodel the residence, converting it to a vacation rental. The parties agreed to pay the seller $200, 000. Cummings made a down payment of $80, 000, and the seller agreed to carry a note for the balance of $120, 000, to be due in full in June 2015. The parties committed to make monthly interest-only payments to the seller of about $700, and to pay all insurance and property taxes.

         Dessel, Seal, and Cummings signed a promissory note (the agreement), providing that Dessel and Seal would match Cummings's initial $80, 000 investment by making the monthly payments on the seller's note, paying all insurance and property taxes, and contributing labor and materials to renovate the property. Once Dessel and Seal had contributed $80, 000 through these methods, the parties agreed, the three would share “enjoyment[]” of the property and related “liabilities” and “responsibilities, ” allocated in two equal shares, with one (50 percent) share for Cummings, and the other (50 percent) share to be divided equally between Dessel and Seal.

         After the parties signed the agreement, a dispute arose regarding the grant deed the seller had signed. The deed was recorded on June 26, 2009, and gave each party an equal one-third interest in the property, listing them as joint tenants. Seal later argued the agreement had been to share any profits 50-50, but to divide ownership into equal one-third shares. Cummings disputed this point, maintaining the agreement had been to allocate ownership in two equal shares, with one 50-percent share for her and the other 50-percent share divided equally between Dessel and Seal. Cummings subsequently recorded quitclaim deeds, which reflected the latter division, and described the parties as tenants in common.

         With this exception, the partnership initially proceeded as planned. Dessel and Seal made payments as agreed and commenced work on the property. During the course of about a year, they gutted the residence, leaving it a shell. At that point, Dessel and Seal stopped work on the property. Then, in late November or early December 2010, they told Cummings they could no longer make their monthly payments. The parties' relationship deteriorated. Eventually, Cummings took over the monthly payments and payment of the property taxes to protect her investment.

         B. Procedural History

         In August 2011, Cummings filed suit against Dessel and Seal, alleging causes of action, among other things, for quiet title to establish her 50 percent ownership interest in the property and for partition. Dessel and Seal filed a cross-complaint, alleging several causes of action-for breach of contract, breach of an implied covenant of good faith and fair dealing, nuisance, fraud, and injunctive relief-essentially contending the court should enforce the parties' agreement.

         The bench trial of this matter was continued several times. Eventually, it was scheduled to commence on November 3, 2014. Two weeks before that date, on October 21, 2014, Dessel and Seal, representing themselves, filed a motion to continue the trial to an indefinite date in “the first part of 2015.” They explained they had not yet raised the funds to retain counsel, they were grieving the sudden death of a close family friend whose funeral might be scheduled for a date during the trial, and they might need to travel to visit Dessel's father, and Seal's grandfather (Grandfather), who recently had been hospitalized, and was reported to be in rapidly declining health. Cummings opposed the request, pointing out that the trial date had been continued several times previously, including once almost a year earlier, after the attorney then representing Dessel and Seal had withdrawn. Cummings observed the long delay left her alone responsible for meeting payments on the note, even though Seal was the person then actually residing on the property. The court issued an order denying the motion, but continuing the trial to November 6 for reasons of court necessity. In the order, the court stated an intent to take a one-day recess on November 8, to allow Dessel and Seal to attend the funeral of the family friend, if it was scheduled for that date. When the parties, thereafter, appeared for trial on November 6, 2014, the court ordered a further continuance until December 1, 2014, due to its own unavailability.

         On December 1, Cummings appeared for trial with her counsel, and Seal appeared representing herself. Dessel did not appear. Although no court reporter was present on that date, and the record, therefore, includes no transcript of the proceedings, [1] other documents included in the record indicate that Seal told the trial court Dessel was ill-without providing any supporting documentation-and requested a further continuance, which the court denied. The bench trial then commenced and continued for five days.[2]

         After the parties completed their presentation of evidence, the trial judge stated his intended findings, which he later confirmed in an interlocutory judgment filed on January 6, 2015. The interlocutory judgment granted Cummings's quiet title cause of action, determining that Cummings owned 50 percent of the property, Dessel and Seal each owned 25 percent, and the parties held the property as tenants in common. Additionally, concluding partition was an appropriate remedy, the interlocutory judgment specified a procedure by which the parties could bid against each other to purchase the property, and set $125, 000 as the minimum bid, “based upon the testimony of [Cummings's] expert witness Matthew Babich.”[3] Finding that Cummings, by then, had invested a total of $124, 353.51 in the property, including her original down payment, while Dessel and Seal had invested $39, 588.36, the trial court ruled Cummings was entitled to a credit in the bidding process equal to the amount of the difference ($84, 765.15). The successful bidder was to assume all existing obligations under the parties' agreement and the seller's note. If no party took title to the property, the interlocutory judgment directed, it was to be listed and sold to the public at whatever value bidders offered.[4]

         Pursuant to the procedure specified in the interlocutory judgment, on January 30, 2015, Cummings submitted the minimum bid for the property ($125, 000). Dessel and Seal did not submit bids. Under the interlocutory judgment, this meant Cummings was awarded full ownership of the property. Because she had an outstanding credit of $84, 765.15, and would assume sole responsibility for completing payment on the seller's outstanding note ($120, 000), the interlocutory judgment allowed Cummings to buy the property from Dessel and Seal without paying any additional money. On May 8, 2015, the trial court filed an amended judgment confirming completion of the sale and Cummings's status as sole owner of the property. The amended judgment awarded Cummings her attorney fees and costs. This timely appeal followed.

         II. DISCUSSION

         A. Partition

         1. Legal principles and ...


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