Wells et al. v. Spera
Annotate this CaseBrothers Newton and Jason Wells (plaintiffs) and their mother Beverly Wells, filed suit in September 2017 seeking to partition real property they held as tenants in common with defendant Pall Spera in Stowe, Vermont. The court granted plaintiffs’ summary-judgment motion on the question of whether they were entitled to partition as a matter of law, and issued an order of appointment of commissioners and order of reference by consent of the parties. The order appointed three commissioners and directed them to determine whether the property could be divided, assigned to one of the parties, or sold. They were ordered to determine the fair market value of the property and each person’s equitable share. Neither party reserved the right to object to the commissioners’ report. Ultimately, the commissioners concluded that physical division would cause great inconvenience to the parties. Finding division inequitable, the commissioners awarded defendant first right of assignment due to his ability to buy out plaintiffs’ interest immediately, while plaintiffs required a loan to do so, and because partition would constitute the dissolution of the partnership agreement, which defendant had wished to continue. Plaintiffs filed a motion objecting to the report, citing Vermont Rule of Civil Procedure 53(e)(2)(iii). Plaintiffs’ main argument was that the commissioners exceeded their mandate as provided by the order of reference in concluding that partition would result in zoning violations, and the commissioners erred on that question as a matter of law. In the alternative, they argued the equities favored assigning the property to them. The court denied the motion, including plaintiffs’ request for a hearing, and adopted the report without qualification. It reasoned that plaintiffs had not reserved their right to object to the report as required by the plain language of Civil Rule 53(e)(2)(iii). Finding no reversible error in this decision, the Vermont Supreme Court affirmed.
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