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ORGAIN v. BUTLER


ORGAIN v. BUTLER


January 9, 1998
Record No. 970622

JOHN BARBOUR ORGAIN, III

v.

NORVELL ORGAIN BUTLER

OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Timothy J. Hauler, Judge
PRESENT: Compton, Lacy, Hassell, Keenan, Koontz, and Kinser, JJ.,
and Whiting, Senior Justice


In this appeal from a decree of sale entered in a partition
suit, we consider whether the chancellor abused his discretion in
ordering the property sold at public auction, rather than through
a real estate broker as recommended by the commissioner in
chancery.

John Barbour Orgain, III, and Norvell Orgain Butler are
siblings who own as tenants in common a 40-acre tract of land
located in Chesterfield County (the property). Butler filed a
bill of complaint seeking partition or sale of the property, and
the chancellor referred the case to a commissioner in chancery.

Based on an appraisal received in evidence, the commissioner
determined that the fair market value of the property is
$803,000. The commissioner also found that the property is unique
in nature because it is one of the last large undeveloped parcels
on Huguenot Road in Chesterfield County. The commissioner noted
that neither party had offered to purchase the other party’s
interest in the property.

Orgain and Butler rejected two private offers to purchase the
property. One offer was in the amount of the appraised value. The
other offer, in the amount of $1,200,000, was acceptable to
Butler but was rejected by Orgain because of certain attached
conditions. After reviewing all the evidence, the commissioner
filed a report recommending "that since the property
. . . is unique in . . . nature, it should be
publicly marketed through a reputable commercial real estate
brokerage firm agreed to by the parties." Neither party
filed exceptions to the commissioner’s report.

The record does not show that any evidence was taken before
the chancellor. After the chancellor heard argument of counsel
concerning the commissioner’s report, he rejected the
commissioner’s recommendation that the property be sold
privately. The chancellor noted that the parties already had
refused two private offers, and he ruled that a public auction
was "the only alternative," due to the "likelihood
that the parties will be unable to agree upon any price or method
for conducting a private sale."

On appeal, Orgain argues that there was no evidence to support
the chancellor’s conclusion that the parties could not agree on
the method and terms for a private sale of the property. Orgain
further contends that the chancellor improperly rejected the
commissioner’s report, since the chancellor did not find that the
report was unsupported by the evidence. Finally, Orgain asserts
that the chancellor’s ruling is contrary to the parties’ best
interests.

In response, Butler argues that the chancellor did not abuse
his discretion in ordering the property sold at public auction.
Butler contends that the commissioner’s recommendation was merely
advisory and that once the chancellor concluded that an agreement
between the parties was unlikely, "it was absolutely within
the [chancellor's] discretion to order the public sale." We
disagree with Butler’s arguments.

Although the report of a commissioner in chancery does not
carry the weight of a jury verdict, Code  8.01-610, the report
should be sustained unless the chancellor concludes that the
commissioner’s findings are not supported by the evidence. Yeskolski
v. Crosby
, 253 Va. 148, 152, 480 S.E.2d 474, 476 (1997); Hill
v. Hill
, 227 Va. 569, 576-77, 318 S.E.2d 292, 296 (1984).
This rule applies with particular force to findings of fact that
are based on evidence taken in the commissioner’s presence, but
does not apply to pure conclusions of law contained in the
commissioner’s report. Morris v. United Virginia Bank, 237
Va. 331, 337-38, 377 S.E.2d 611, 614 (1989); Hill, 227 Va.
at 577, 318 S.E.2d at 296.

Code  8.01-610
gives the chancellor substantial discretion in the manner of
reviewing the commissioner’s report. While the recommendations of
the commissioner are merely advisory, Hill, 227 Va. at
579, 318 S.E.2d at 298, the statute does not allow the chancellor
to ignore the commissioner’s report or portions thereof. Gulfstream
Bldg. Assocs. v. Britt
, 239 Va. 178, 185, 387 S.E.2d 488, 492
(1990). The chancellor is required to consider the commissioner’s
factual findings. See id.; Yeskolski, 253
Va. at 152-53, 480 S.E.2d at 476; Hill, 227 Va. at 576-77,
318 S.E.2d at 296. When the chancellor has disapproved the
commissioner’s findings, we must review the evidence and
determine whether, under a correct application of the law, the
evidence supports the commissioner’s findings or the conclusions
of the chancellor. See Firebaugh v. Hanback, 247
Va. 519, 525, 443 S.E.2d 134, 137 (1994); Morris, 237 Va.
at 338, 377 S.E.2d at 614.

In a partition suit, when partition of the subject property
cannot be conveniently made, the chancellor may order a sale of
the entire property if such sale will promote the interests of
the parties who are entitled to the subject property or its
proceeds. Code  8.01-83;
Shannon v. Hall, 235 Va. 360, 364, 368 S.E.2d 695, 698
(1988); Sensabaugh v. Sensabaugh, 232 Va. 250, 258, 349
S.E.2d 141, 146 (1986). A sale of property in a partition
proceeding must be made in a manner that will bring the best
price obtainable. Austin v. Dobbins, 219 Va. 930, 934, 252
S.E.2d 588, 591 (1979); see Schweitzer v. Stroh,
182 Va. 842, 848, 30 S.E.2d 689, 692 (1944); Federal Land Bank
v. Parks
, 170 Va. 240, 242, 196 S.E. 627, 628 (1938). Thus,
in the present case, the chancellor was required to order such
method of sale as would obtain the highest price for the
property, unless the evidence showed that the parties’ conduct or
other circumstances made use of that method unachievable.

The commissioner’s recommendation, that the highest price for
the property could only be obtained through public marketing by a
real estate broker, was based entirely on his factual finding
that the property was unique in nature because of its size and
location. The record does not show that the chancellor considered
this factual finding. Moreover, the record contains no evidence
to support the chancellor’s conclusion that the parties likely
would be "unable to agree on any price or method for
conducting a private sale." The record shows only that the
chancellor assumed that the parties would be unable to agree on
the method and terms of a private sale because they had not
reached an agreement on any other matter during the course of the
proceedings.

The chancellor reached this conclusion despite his
acknowledgement that the method of sale recommended by the
commissioner would be the most advantageous to the parties. Thus,
the chancellor abused his discretion because he ordered a sale at
public auction in the absence of any evidence that the parties’
interests would be promoted by this method of sale, or that the
parties were unable to agree on terms for listing the property
through a licensed real estate broker.

Since the evidence does not support the chancellor’s
conclusions, we will reverse the chancellor’s decree, enter final
judgment here confirming the commissioner’s report, and remand
the case to the chancellor for further proceedings.

Reversed,
final judgment,
and remanded.

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