INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DENISE E. FERRY, an individual, Respondent,

v. ROBERT L. EVANS, an individual, Appellant, ALLISON SHERMAN EVANS, an individual, Respondent. No. 70918-6-1 DIVISION ONE *£>

UNPUBLISHED OPINION

FILED: December 22, 2014 XT

Appelwick, J. — Denise, Robert, and Allison each own one-third shares intwo lots
on Lake Sammamish. Denise soughtto liquidate herinterestinone ofthe lots, a valuable piece ofwaterfront property. She moved for partition by sale, because physical partition 

### would violate local zoning ordinances. Allisonjoined Denise's motion. Robert opposed the motion. He soughtto combinethewaterfrontlot withthe second lot—a separate, less valuable piece ofproperty nearby—and physically partition thetwo lots intothree parcels. The trial court ruled in Denise and Allison's favor. 

### Robert appeals. He argues that the trial court erred when it did not considerthe two lots together. Inthe alternative, he asserts thatthe trial court should have physically partitioned the waterfront lot into three lots, ratherthan 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, ratherthan 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 ofthe property. RCW 7.52.010; Friend v. Friend. 92 Wn. App. 799, 802, 964 P.2d 1219 (1998). A partition action is both a rightand an equitable remedy subjectto judicial discretion. Friend, 92 Wn. App. at 803. Thetrialcourthas greatflexibility infashioning reliefunderitsequitable powers, jd. There is a presumption infavor of physical partition. Id. However, a court may order partition by sale ifthere is evidenceto the satisfaction ofthe courtthat physical partition cannotbe 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 onethird interest as tenants in common in a piece of waterfront property along Lake Sammamish (Waterfront Lot). The Waterfront Lotconsists of 16,685 square feet. Ithas 300 feet ofshoreline 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 ofthe cabin 

### has greatly diminished. Robert resides inWashington and continues to use the cabin for recreation and gatherings with family and friends.



### We refer to the parties by their firstnames for clarity. Nodisrespect 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 intheir 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 thatthe 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 lotabove 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 theWaterfront Lot. Denise's complaint alleged that physical partition would result in great prejudice, because the WaterfrontLotwas too small to be legally divided under local ordinances. 

### On May 20, Allison filed an answer and cross claimjoining Denise in seeking 

### partition by sale of theWaterfrontLot. Allison stated that itwas in her and Denise's bestNo. 70918-6-1/4
interests to sell the Waterfront Lot, butthat 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 ofthe Waterfront Lot. Robert had not 

### yet responded to Denise's complaint.2 Allisonjoined Denise's motion inrelevantpart. 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 argumentwas required. On June 14, Robertfiled an answer and counterclaim to Denise's complaint. He 

### requested that the court consider the Waterfront Lot together with the Upper Lot. The WaterfrontLot and the Upper Lot are close in proximity but are separated by a two lane 

### road, a biketrail, a green belt, and athird party tax parcel. Robert asked that the two lots 

### bephysically partitionedto create three separate lots. He sought toretaintheWaterfront 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, Robertfiled 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 whetherthe property could be partitioned.



### 2It appears from the record that Denisedid not movefor defaultjudgment. The record is silent on whether Robert had filed a notice ofappearance 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 thatsale oftheWaterfrontLotwas proper, because itcould 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 abilityto pay, nor did he address Robert's prior unwillingness to pay fairmarketvalue 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 lotsizes have historically been created 

### larger and larger as the Growth ManagementActP] came in. Ihave no idea how that applies here." 

### In addition, Robert requested a continuanceto conductadditional discovery tofind 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 foradditional discovery. She noted that the sole 3Chapter 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 courtgranted Denise's motion to appoint a referee to manage the sale ofthe 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 coowners." 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 Robertargues thatthetrialcourterred inordering partition bysale oftheWaterfront Lot. He maintains that the trial court should have included the Upper Lot inthe 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 ofevidence 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 ofsquarefootage. ]d. at 120. Instead, the courtNo. 70918-6-1/7


### dividedthe property based on each party's responsibility forshareddebts, theirrespective 

### 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 forthe purpose of division and allotmentwhen no injustice results. Id. at 124. There, the trialcourt's divisionwas 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 byone party to another. RCW7.52.440; Inre Marriage ofWintermute. 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 

### apparentlyarosefrom Robert's inabilityorrefusal in2008to 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 inNo. 70918-6-1/8
Robert's favor that we can say the trial court abused its discretion when it declined to 

### considerthe two lots together.4

II. Great Prejudice from Physical Partition Robert maintains that, even ifthe Waterfront Lot is considered alone, the trial court erred in ordering a partition by sale, ratherthan a physical partition. Due to the presumption in favor of physical partition, the trial court could order partition by sale only if itfound that physical partition would result ingreat prejudiceto 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 soughtto physically partition two plots of land into four subplots, each ofwhich would be smallerthan the minimum size underlocal 

### 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 ofthe 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, Robertdid not askthetrial courtto independentlypartitionthe UpperLot. 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, italso 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 himwholly out of one of several parcels ortracts.'" (quoting C.J. Partition § 585, at 503 (1929))).

8No. 70918-6-1/9 25.07.080(6)(b). TheWaterfrontLot is 16,685 squarefeet insize. Itcannotbe 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 exemptfrom land use regulations." 92 Wn. App. at 804. Robert asserts that Friend is distinguishable, because the city of Sammamish did 

### not objectto partition oftheWaterfront 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, itwas the zoning violation that prejudiced the landowners. See id. The same is true here. The evidence before the court showed that physical partition oftheWaterfront Lot would violate local zoning ordinances. 

### Robert did not presentevidence to the contrary. However, he argues thatthe trial court improperly restricted his presentation ofevidence in two ways. 

### First, he argues that the trial court erred in refusing to takejudicial notice of the King County maps he offered at the hearing. He asserts thatthe maps, which displayed lakefrontlots smallerthan 12,500 squarefeet, suggested thattheWaterfront Lot could be physically partitioned. 

### We review a trial court's evidentiary rulings for abuse of discretion. Cox v. Spangler. 141 Wn.2d431,439, 5 P.3d 1265, 22 P.3d 791 (2000). Courts maytakejudicial 

### notice offacts within the common knowledge ofthe community that are not subject to reasonable dispute. ER 201(b)(1); see Hegewald v. Neal, 28 Wn. App. 783, 786, 626No. 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 usejudicial notice to apply such trends to a specific property, jd. Robert offered the maps to dispute Denise's assertion that physical partition was 

### not legallypossible. But, the maps showed onlythatcertain lots did not conform to current 

### zoning regulations. They did not explain whythose lots are nonconforming. Evenifthey 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 courtdid notabuse its discretion in excluding the maps. 

### Second, Robert assertsthat the trial courterred in denying his motion for additional 

### discovery. He maintainsthat thediscoverywould havehelpedtounderstandwhetherthe WaterfrontLotcould be physically partitioned in conformitywith local zoning laws. 

### Under CR 56(f), "[sjhould it appear from the affidavits of a party opposing the motion that he cannot, forreasons stated, presentbyaffidavitfacts essential tojustify his 

### opposition, the court may . . . order a continuance topermit affidavits to be obtained or depositions to betaken ordiscovery to behad." Wereview atrial court's denial ofa CR 56(f) motion for abuse ofdiscretion. MRC Receivables Corp. v. Zion, 152Wn. App. 625, 629, 218 P.3d621 (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) therequesting party does notindicatewhat evidencewould beestablished 

### by further discovery, or(3) the new evidence would not raise a genuine issue offact.'" Blda. Indus. Ass'n ofWash, v. McCarthy, 152 Wn. App. 720, 742-43, 218 P.3d 196 (2009) 

### (quoting Butlerv. Joy, 116Wn. App. 291,299, 65 P.3d671 (2003)).

10No. 70918-6-1/11


### Atthe time of the hearing, Robert had not conductedlegal research ordiscovery on the availability of a variance or the likelihood that one would be granted in this case. His only explanation forfailing 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


### onthe single, clearissue in this case. Thetrialcourtdid notabuse itsdiscretion 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 errorfor 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).

11No. 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 orfacts 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 inordering partition by sale ofthe Waterfront Lot. We affirm.

WE CONCUR: 

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