andrew baumgartner is david foreman each side will have up to twenty minutes for the argument it will also have five minutes for all you'll see the digital timekeeping device on my screen when time is expired i will bang the gavel i'm me please remember no autographs not of the court of the court as record is permitted to record these proceedings today we can't hear you mr berman are you trying to say something i don't think you can hear us eight i believe you'll be a mutant till my twenty minutes  the complaint no affirmative defenses or counter claims were pled all of the allegations related to the parties interest were admitted and the defendant's response after the response was filed and a great order for partition was entered the a great order for partition found that the plaintiffs the parties held interests as lead in the plaintiff's complaint and according to a commissioner commissioner report was then filed commission's report found that the two parcels that issue could not be equitably divided without manifest prejudice to the to the parties defendant then filed two objections to the commissioner's repor s watch the amount of attorney piece in question i believe to be your i believe approximately ten thousand dollars for each of the  fees up into the agreed order and then and a portion of the defendant's fees all of the defendants fees subsequent sooty agreed ordered and so that defendant was granted granting all of defendant's attorney fees after the agreed order was entered and whether the objection the defendant's objection to the commissioner's report was a defense of the the standards of review for all of the issues except for the interpretation of the statute is abuse of discretion so in admitting the affidavit of attorney fees mr armen was present at that hearing none of the statements that were contained in the affidavits were presented none of that evidence was presented at trial so of course it's all surprise to the plaintiffs when these issues are raised after the evidence you're otherwise relevant there is no indication provided why those that information would be relevant to the issue of terry c's court cited take them under by them and regardless the court wasn't exactly clear on how they were relevant or what attorney to protect his interest arto settlement negotiations relevant to show that they tried to come to agreement and it was then and therefore he was in required or needed to get counsel to help him in this proceeding no your honor because again the he did need to protect of interest because his interest was properly played he admitted all of the allegations related to his interest in his response if again if he if he thought that there was some kind of an opportunity to examine to take those affidavits into consideration we believe the court abuse its discretion and the next issue is whether or not the court abused its discretion in denying plaintiff's  fees can be apportioned or the defendant's fees can be apportioned the defendant's fees can only be apportioned if they presented a substantial defense to the complaint there was no defense at all no no defense was pled  the only the only thing that the defendant questioned in its objection to the commissioner's report was the factual conclusion of the report that the property had to be sold that could be divided equitably with manifest prejudice and of course the objection is not directed at all towards a complaint or towards the point if that was an issue a factual issue directed towards the commissioner's report the commissioner itself so that cannot be reasonably determined to be a defense to the complaint in fact the prayer request and the outcome requested by the defendant was the same as the outcome requested in the complaint itself known as a partition in kind unless it could be must the could not occur without manifest prejudice the party so in fact the objection did not defeat to complain at all twenty levin case in the th district where the court found that the attorney's fees of the a party that st properly please and set forth the rights of all the interested parties must be apportioned in this case the plaintiff is the party that properly planned all of the interested parties the thirty feet to make interested parties interests there's no there's no question that the plaintiff properly pled the party's interests and in fact there's elements are met in this case there was no defense for the defendant admittedly so by the defendant and the party's interests were properly pled by the plaintiff and based on all of that it seems to be a clear and again because of the because the plaintiffs st amid a complaint properly pled the party's interests the defendant didn't need to provide for tech his interest by hiring an attorney regardless of the outcome whether it was a partition by sale or partition in kind his interest would probably play well how would you address the hearer's against johnson case that has been cited by mr foreman that was not approved by the court in new commissioners were appointed the nd report was then denied also by the court in the court decided to approve the st report well in this extent i guess to reiterate there was no need for the defendant to protect his interests by hiring an attorney because his interests were properly pled they were properly protected it's not as if he was going to get less  om either in a partition in kind or a partition by say oh we're going to get fifty percent of the interest as the court saw fit and there which found that the part of the parcels cannot be equitably divided without manifest prejudiced parties and again that's why because his issue was with the commissioners report not the complaint itself it could not have been to come a defense to the complaint because it wasn't even directed at the complaint and again what he was requesting was also requested in the complaint itself that is partition in kind if the properties cannot be manifest cannot be partition manifest prejudice to the parties in no way did it did it defeats any of the requested relief in the in the complaint the issue of easements which was  were requested were requested if the park parcels were going to be sold so if the parcels were going to be sold there's no evidence presented that sale with them subject to an easement would have affected his precedent animosity and differences between the parties with regard to collateral issues will not result in a after period adversary proceedings were going to a portion of the parties attorney's fees after properly pleading the of the complaint for partition itself such is when there is an issue related to a will related to airship issues related to divorce were where unless property issues arise in those other issues resulting in protect his interest on the property i submit the answer to that is yes the issue attorney's fees and a partition case are rather unique case in and of itself is rather unique and its sort of clause  in ram and the theory being that when you have a partition the right distance absolute and the splitting of the parties ways is d is for the benefit of all concerned and the object of a partition is to take two t parties that own something in common and effectively grant them some point divorce if that divorce can be granted in kind by division of property and that is what the court is required to do in fact that is of property income line with a payment of old t v to equalize the values over a forced or sale and i hate to use the word division because complaint filed by the plaintiffs to partition two separate tracks of land these tracts of land are located in different counties they came to ownership through different chains of titles different deeds different tax id numbers different legal descriptions these two tracks have always been separate they have never been one tracked the only time they have been treated as one track is by the plank for purposes of prosecuting this partition and plaintiff is correct these owners are co owners in both parcels and that right to partition is absolute your motivation in doing so doesn't matter if you're a co owner you have an absolute right to decide i want out and i have a right to partition the defendant did not dispute that but suspended stipulated and agreed to the entry of an agreed order partition then it became apparent that there was a dispute over how the property was to be partitioned so that we got this straight what happened here is a plaintiff's counsel prepared a report for the commission or concluding that the properties that two separate tracks could not be devised i submit that that's illogical but that's what it said and at that point it became apparent that they were trying to force a public sale on the defendant as opposed to one party getting one tract one party getting the other track of the payment of mobile the allies the values the defendant and objected to the conclusion the ultimate legal conclusion reached by the commissioner that the property could not be divided in the last pretty clear that scorched call not the commissioners and in doing so the the merits bear on the issue of fees given the reasonableness of the defendant's position and whether or not the defendant interposed a good and substantial the fans to the plaintiff's clanked disclaim in this particular case the complaint itself admits that there are two tracks it describes track one and track to track one marion county track to the deeds were separate the appraisal identifies the tracks separately on eight on at the record at sea ninety  ninety eight dollars and c ninety five dollars in fact the appraisal praises each track separately and gives a value of sixty five thousand five hundred marion county track and seventy five thousand five hundred for the wayne count b commissioner it minted through his testimony and there was no reason that this property could not be awarded one track to one party in one track to the other party payment of the old state and each could then use that track in the future as they saw fit without any undue interference from the other which is the ultimate and in fact the preferred mandated result under the partition act be it in this case defendant did not call any experts we did no discovery we relied solely on their own complaint the commissioner's report the appraisal and it needs to demonstrate that this property should be divided or i guess apportioned in kind rather than a forced public sale and the  defendant was required to retain counsel to protect his interest in that property had defendant not retained counsel plaintiff was going south and the defendant did not want the property sold defendant's preference was to retain one hundred percent ownership of one of the two tracks and the defendant to do likewise with the other track and that they could proceed on and if they wanted to sell their tract that's their prerogative they want to grant an easement on it that's their prerogative plaintiff was attempting to force a public sale on the defendant and the defendant resisted and the prior to the hearing on the method of sale because of partition act break sold it is your position case let me say this plaintive opposes this as an all or nothing proposition either plant gets fees or defendant it seems that's not equity and that's not accurate the  prevailed in that case not the defendant the court ordered the property divided in kind so in doing so the court didn't allow award fees after how what portion of those fees were incurred prior to the arise of the dispute regarding the method of sale so the harris versus johnson case indicates th plaintiff not entitled to recover fees after the method of sale becomes just viewed now as i said in that case the roles were reversed with respect to who want it's old versus divided in kind and i believe that the hearers case is probably the single most important case that we referred to but the defendant's position at trial was that this is this is a foregone conclusion we've got two separate tracks it's never been one tracked no where in the pleadings is a treated as one track we've got an appraisal from the commissioner of what each tract is valued that this isn't a matter of simple arithmetic and as i've cited in my brief there was a case roper versus roper where the court divided two farms amongst three children and did basically that said well the commissioner has given us all the information we need to do this we've got two tracks we're going to walk we're going to buy one of those tracks and half if each one of the parties one part of it another part of the other part and then the other track we're going to get to the rd party and that settling up is a matter of simple arithmetic because no two tracks your honor are equal in the eyes of the law if what plaintiff claims is true you could never have you would never have a time the issue isn't that this entire case proceeded under the misapprehension that if the property could not be divided equally that it had to be sold that is not the law and it never has been the law going and as i said that bad legal preference is straight in the act if you if you look at section one hundred and five of the partition act it's expressly stated in there let's just cut to the chase you take one will take the other and will have to settle up and be done with it the plaintiff refused to act and to your honor's point that's it became clear defendant had to employ counsel to protect his interest in the land plaintiff seems to think that money is equal to land that well if we could have sold it and it still got half your money that's not the point our point is we want the land we're not we're not interested in selling it at that that's the profit of it but owner and that's the reason why there is a legal preference built into the partition act to favor a division in kind over a forced public sale and it in this particular case the there was there was zero case law to support the plaintiff's insistence on a forced public there was zero case law to support the plaintiff's request that easements be imposed on the property the court can remove clouds on title in a partition but it can't create the can't create burdens on the property and then order it sole that's not part of the court's jurisdiction in a partition case so the plaintiffs would have the defendant pay half of plaintiffs speeds for pursuing to absolutely merit was positions on top of having to pay his own fees and the equity and justice under the the provision of the partition act has a fee shifting aspect to it where it says the parties are meant in or an end to a calculated risk what they are going to do and how they are going to proceed and i believe the jackson vs o'connell case the science that i've cited in my brief refers to that that is the the position that a defendant or a party is put into is looking to do i risk trying to defend this and if i lose i my fees and i have to pay all my tourney species plus the plaintiffs fees are going to be a portion while the plaintiff likewise is placed in a similar position if their insist on pursuing a forced public sale where there is no authority to support no other words the plaintiff insisted on pursuing a public sale despite any authority to do that and despite the fact that this hat these two tracks had never been one trap they've always been separate and orse the defendant to go have a trial in order to preserve his right to retain ownership of at least one of those two tracks involved i believe that the court had no choice but to do what it did and plaintiff pointed that out before we had the trial and the defendant persisted in forcing this trial upon defendant defend it keep in mind that the defendant can can recover fees even if they're not successful sometimes and the plaintiff will not recover fees even if they are successful it's whether the defense is good at substantial not whether or not it prevails in this particular case the defendant did prevail our defense certainly was good and substantial it was that the property had to be awarded one to each party with the payment of the old t to equalize the values that no easement should be imposed on the property and that the court should  s and an affidavit from my client saying look we tried everything we could to avoid this this is not a case where you're it missed admitting a correspondence from a defendant as some sort of admission  negligence in a fender bender case this is a post promise and a partition action over the issue fees where the judge and the judge did clearly clearly in the record you will see where the court says i'm admitting this for the limited purpose of demonstrating the defendant's need to employ counsel i believe he referred to that multiple times because the plaintiff made multiple japp sions at the hearing on that issue so the court took that evidence simply as proof that the defendant was required to employ cancel to protect his interest in the property one other item i'd like you to  address and that's your request return if the zone where your honor that is an issue that i have not i have not spent a single case that addresses it and i i'm us can fast i'm not sure procedurally how that is handled but my point is is not only were we forced to defend that cause have a trial over two merit list points but then plaintiff doubles down on it and files an appeal where the amount in controversy is eleven thousand five hundred and twenty two dollars sixty six cents in my opinion the necessity of fire today's hearing and filing briefs is part of that good substantial defense is a continuation of the defense that started at the trial court level and has continued  and i believe that in equity and justice in all fairness the defendant should not be burdened with having to pay counsel fees on appeal of i we well i didn't request the fees on appeal as a sanction i just referred to it in my brief as a logical extension of the argument that we're making with respect to the piece before the trial  it stands to reason to me that that the same thing that if it plaintiff is not contesting the underlying merits of the court's decision to award one track to each party they're just griping about the fee and the standard on d review is abuse of discretion where the court is to be guided by x principles of equity and justice again there seems to be partition then you have to pay points of species regardless i challenge that proposition and say that is not the case it is not an all or nothing issue it is based upon the facts of that particular case and this particular case yes we did not we did not dispute their fees prior to the entry of the agreed order we stipulated to that it's the fees after you're trying to force a public sale on the defendant that we disputed and it's and it's those fees that we sought to recover and as respects the arithmetic i believe that there is a at in the record at  defendant shall recover fees and arguably we could recover all of our fees not just a portion so i believe that the plaintiff is fortunate that the court in order that the plaintiff to pay all defendants fees so your honor in a nutshell this this property is always meant to tracks this when there was never any doubt whatsoever but what the underlying result was going to be and we had to try it case in order to protect the defendants interest in his right to at least retain ownership of one of those two tracks and to avoid having our interests all thank you counsel reb the question at least the question here is the jobs it would be then how much there is no question here is the johnson if defendant should get the only question is how much plaintiff should home the statute defenses or anything like that in an attempt to defeat the claim the plaintiff complaint and again the plants complaint the relief requested it was actually granted one of the or relief requested was partition in time that is what occurred there was no defense is illogical to to argue that somehow requesting partition in times defeated or could have defeated to comply with that is one of the remedies requested in the was partition in time unless it cannot be manifestly x unless it cannot be divided without manifest prejudice to the parties and if it cannot be divided without manifest friends just then to be civil the language is clear in the in the complaint in the st admitting complaint it's partition in kind or if not possible then partition myself the defendant he's referring to a forced sale we were not trying to force the sale we were trying to establish and we were if it were to be division in kind with blanks where he would fill in where the for the legal description of how to divide the parcels the other template was in case it was not divisible in which case there  were whites for the values these two parcels are in two counties that's why there's two chains of titles that's why there's two penn'orth they're always going to be separate unless the counties merge i don't know how that's relevant but it's impossible to to treat them as one when they're on different counties and that's why they've always been separate it's just they lie and define it not be possible that's really possible to partition by giving each party one of those on an i'm not understanding commissioners rationale and if you send him to templates why he chose the one he did it if both pieces of property are in two different counties were due to description edited and again that's the commissioner's conclusion not ours we are relying on the commissioner's conclusion the defendant seems to conflate the commissioner's report with our pleading they are two completely separate documents the commissioners not a party the objection those report was not directed at our complaints whatsoever it cannot be in for that reason alone it can't be considered a defense to our complaint was there never any testimony from the commissioner it's we relied on the report and again there was no evidence other than the report defended been proven any evidence that it was divisible him prevented the expert witness to say it was  equitably it could have been equitably divided they simply relied on the phrase value for each track and again there were to be two values because the tracks are in different counties so they had to be treated as separate tracks because well simply for that reason do we know when the defendant st realized what the commissioner's report stated in regard to his decision to sell the property and that was it at the hearing was it after it was  the process he and in fact the st atari withdrew the day of the the st scheduled evidentiary hearing if i remember correctly the commissioners report was sent to both attorneys after it was completed i filed it was the court so defendant nd attorney would have been aware of the report when he was hired i can't speak for what potentially st made aware of the report after he had been filed with the court correct it would have been it was filed with the court before he entered appearance so at least with in regard to mr foreman he had no opportunity to well i mean the defendant's attorney was aware of he agreed to the commissioner named commissioner being appointed he could have contacted the commissioner any time not that but my question is did he see our know what the commissioner