NO. COA13-1426

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

TOMMY M. WHITESELL,

Petitioner-Appellee,

v. Rockingham County

No. 12 SP 597

CATHY B. BARNWELL

Respondent-Appellant.

Appeal by Respondent from order entered 19 August 2013 by 

Judge A. Robinson Hassell in Superior Court, Rockingham County. 

Heard in the Court of Appeals 20 May 2014.

Rossabi Black Slaughter, P.A., by T. Keith Black and Gavin 

J. Reardon, for Petitioner-Appellee.

Forrester Law Firm, by Richard W. Forrester, for 

Respondent-Appellant.

McGEE, Judge.

Tommy M. Whitesell (“Petitioner”) and Cathy B. Barnwell 

(“Respondent”) each own a one-half leasehold interest in Lot No. 

47 Belews Lake, Rockingham County and a one-half interest in 

personal property consisting of the following: a Park Model Home 

(“the mobile home”) on the lot and “all personal property and 

improvements contained” on the lot. At the time Petitioner and 

Respondent acquired the leasehold interest and the mobile home, 
-2-

they were in a dating relationship. They entered into a written 

agreement (the “Agreement”) around April 2000, that provided for 

the disposition of “the property located at Belews Lake” should 

either party die or should either party “desire to sell their 

individual ownership[.]”

Petitioner, on 29 November 2012, filed a petition for sale 

of the “leasing interest” and the personal property. The matter 

came on for hearing on 29 July 2013. In an order entered 19

August 2013, the trial court found that “a dispute exists 

between the Parties as to whether the Agreement contemplates 

both the Leasehold Interest and the Personal Property.” The 

trial court further found that the parties “have experienced 

substantial difficulty in attempting to share the Leasehold 

Interest and Personal Property, resulting in numerous 

disagreements relating to maintenance, storage of boats on off 

weekends and reimbursement of expenses.”

The trial court was “not persuaded that the Agreement 

reflects or is sufficient evidence that the Parties intended to 

forever waive or abandon their respective rights to partition 

their Leasehold Interest in the Property or the Personal 

Property.” The trial court ordered a public sale of the 

leasehold interest and the personal property. Respondent

appeals.
-3-

I. Standard of Review

It is well settled that “when the trial court sits without 

a jury, the standard of review on appeal is whether there was 

competent evidence to support the trial court’s findings of fact 

and whether its conclusions of law were proper in light of such 

facts.” Lyons-Hart v. Hart, 205 N.C. App. 232, 235, 695 S.E.2d 

818, 821 (2010). “Findings of fact by the trial court in a nonjury trial have the force and effect of a jury verdict and are 

conclusive on appeal if there is evidence to support those 

findings. A trial court’s conclusions of law, however, are 

reviewable de novo.” Id. The “‘determination as to whether a 

partition order and sale should [be] issue[d] is within the sole 

province and discretion of the trial judge and such 

determination will not be disturbed absent some error of law.’” 

Id. at 236, 695 S.E.2d at 821 (citation omitted).

II. Analysis

Respondent argues that the trial court erred in ordering a 

sale. Respondent makes several sub-arguments in support of this 

contention.

A. Estoppel

First, Respondent contends Petitioner “was estopped by 

contract from partitioning.” For support, Respondent cites 

Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553 (1966). In 
-4-

Properties, the agreement did not contain an express stipulation 

that a party shall not partition the property. Id. at 20, 149 

S.E.2d at 558. However, our Supreme Court observed that it was 

apparent “from the instrument itself and from the circumstances 

surrounding its execution that neither party considered the 

possibility of partition during the life of Mrs. Cox.” Id.

By contrast, in the present case, the trial court found 

that a dispute existed as to whether the agreement contemplated 

both the leasehold interest and the personal property.

Furthermore, the trial court was “not persuaded that the 

Agreement reflects or is sufficient evidence that the Parties 

intended to forever waive or abandon their respective rights to 

partition their Leasehold Interest in the Property or the 

Personal Property.” Respondent does not challenge the above

findings of fact on appeal as unsupported by competent evidence.

Rather, Respondent contends that the trial court, “after 

finding that an agreement existed, surely erred in assigning its 

own temporal interpretation to the [A]greement.” To the extent 

this statement challenges the trial court’s finding of fact, 

Respondent nevertheless has failed to show the trial court 

erred. There is no indication in the trial court’s order that 

it based its finding on the passage of time. Rather, the trial 

court based its finding on the language of the Agreement, which
-5-

does not contain any express stipulation as to partition. 

Respondent has not shown error on this basis.

B. Injury

Respondent next contends Petitioner will not suffer either 

injury or substantial injury. To the extent this statement 

constitutes an argument that the trial court erred in making 

finding of fact 9 (“It is impossible to divide the Leasehold 

Interest or the Personal Property without substantial injury to

at least one of the Parties.”), Respondent has failed to 

demonstrate that the trial court erred on this basis. “If a 

division of personal property owned by any persons as tenants in 

common, or joint tenants, cannot be had without injury to some 

of the parties interested, and a sale thereof is deemed 

necessary, the court shall order a sale to be made[.]” N.C. 

Gen. Stat. § 46-44 (2013). Respondent’s argument consists of 

questioning the evidence of injury.

However, Petitioner testified during the hearing before the 

trial court that the alternating weekly schedule that the 

parties had been using since 2002 “doesn’t work.” He testified 

that the parties argued about the time frame and which duties 

each should perform at the property. The parties disagreed 

about picking up broken tree limbs, mowing the grass, the use of 

the septic tank, the installation of a light near the lake, 
-6-

cable expenses, utility expenses, fertilizer, kitchen supplies, 

and cleaning the property. Petitioner further testified that 

Respondent’s pontoon blocked his view of the lake and prevented

Petitioner from keeping his boat in the slip. This evidence 

shows the obstacles Petitioner faces in selling his one-half 

interest in the leasehold, mobile home, and other personal 

property. Petitioner would suffer injury by either being unable 

to sell his one-half interest or having to accept a drastically 

reduced price to attract a buyer who wishes to share a one-half 

interest with Respondent.

The evidence shows that a “division of personal property 

owned by any persons as tenants in common, or joint tenants, 

cannot be had without injury to some of the parties 

interested[.]” N.C.G.S. § 46-44. Respondent has not shown 

error on this basis.

C. Unclean Hands

Respondent next contends that Petitioner has unclean hands. 

“The doctrine of clean hands is an equitable defense which 

prevents recovery where the party seeking relief comes into 

court with unclean hands.” Ray v. Norris, 78 N.C. App. 379, 

384, 337 S.E.2d 137, 141 (1985). However, within this subsection, Respondent cites no supporting authority and restates 

earlier arguments relating to equity. Respondent contends that 
-7-

the fact Petitioner “assigned away a significant portion of the 

personal property” by “titling it to himself and his new wife,”

is a material breach of the agreement.

Respondent does not challenge the trial court’s finding 

that the agreement does not show that the parties intended to 

waive the right to partition. Respondent has presented no 

authority for such application of the doctrine of unclean hands 

in this case, where Petitioner does not seek relief under the 

agreement, but rather through statute. Relief “is not to be 

denied because of general iniquitous conduct on the part of the 

complainant[.]” Id. at 384, 337 S.E.2d at 141. Respondent has

failed to show error on this basis.

D. Essential Party

Respondent also contends that Petitioner “has not named an 

essential party, Carolina Marina, the leasing entity for Duke 

Power.” However, Respondent again cites no supporting authority 

for this argument. See N.C.R. App. P. 28(b)(6) (“The body of 

the argument and the statement of applicable standard(s) of

review shall contain citations of the authorities upon which the 

appellant relies.”). Furthermore, Respondent does not describe 

how this constitutes reversible error by the trial court. This 

argument is therefore dismissed. See Hackos v. Goodman, ___ 

N.C. App. ___, ___, 745 S.E.2d 336, 341 (2013) (“Plaintiff cites 
-8-

no authority in support of this conclusory statement, and fails 

to make any actual argument in her brief as required by N.C.R. 

App. P. 28(b)(6), resulting in abandonment of Plaintiff’s 

argument.”).

E. Findings and Conclusions

Respondent next contends that the trial court’s order “is 

wholly inadequate to support an order for the sale of property”

under the requirements of N.C. Gen. Stat. § 46-22(c). However, 

N.C.G.S. § 46-22(c) does not govern this case. The applicable 

statute is N.C. Gen. Stat. § 46-44, which provides that if “a 

division of personal property owned by any persons as tenants in 

common, or joint tenants, cannot be had without injury to some 

of the parties interested, and a sale thereof is deemed 

necessary, the court shall order a sale[.]” N.C.G.S. § 46-44. 

This Court has held that a “leasehold interest in real property 

is a chattel real and as such is subject to rules of law 

applicable to personal property.” First Southern Savings Bank 

v. Tuton, 114 N.C. App. 805, 807-08, 443 S.E.2d 345, 346 (1994); 

see also Real Estate Trust v. Debnam, 299 N.C. 510, 513, 263 

S.E.2d 595, 597 (1980) (“a lease is a species of personal 

property”); Moche v. Leno, 227 N.C. 159, 160, 41 S.E.2d 369, 370 

(1947) (“estates less than freehold, called ‘estate for years,’ 

however long, created by lease, have been classified almost 
-9-

invariably as personal, and not real property”); Fleet National 

Bank v. Raleigh Oaks Joint Venture, 117 N.C. App. 387, 391, 451 

S.E.2d 325, 328 (1994). Respondent has therefore failed to show 

error on this basis.

Affirmed.

Judges HUNTER, Robert C. and ELMORE concur.