Enoch Enos Gould, Appellant, vs. Winfield William Gould, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-2231

 

Enoch Enos Gould,

Appellant,

 

vs.

 

Winfield William Gould, et al.,

Respondents.

 

Filed August 19, 2003

Affirmed

Willis, Judge

 

Beltrami County District Court

File No. CX011457

 

Bryan N. Anderson, Andresen, Haag, Paciotti & Butterworth, P.A., 1000 Alworth Building, P.O. Box 745, Duluth, MN 55801-0745 (for appellant)

 

Paul A. Kief, 514 America Avenue N.W., P.O. Box 212, Bemidji, MN 56619-0212 (for respondents)

 

            Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.

U N P U B L I S H E D  O P I N I O N

 

WILLIS, Judge

 

On appeal from an order of partition of real property, appellant argues that the district court erred by confirming the referees' report and by failing to order reimbursement to appellant for real-estate taxes.  Because we conclude that the district court did not err, we affirm.

FACTS

            The substantial degree of animosity among members of the Gould family, including the parties here, has resulted in multiple lawsuits.  Appellant Enoch Enos Gould and two of his brothers, respondents Winfield William Gould and Michael Moroni Gould, owned property as tenants in common; appellant and respondent Winfield Gould each has a house and outbuildings on the property.  Because of the friction among the brothers, they decided to divide their property into two parcels:  one-third to be owned by appellant and two-thirds to be owned by respondents as tenants in common. 

Because the parties were unable to agree on how to divide the property, this action for partition was commenced.  The district court appointed three referees to make partition of the parties' property, as mandated by statute, and appointed two licensed appraisers and one licensed surveyor.  The purpose of the referees' report was to make partition of the property "such that [appellant] will have 1/3 of the total land value and [respondents] will have 2/3 of the total land value."  The parties made recommendations for partition.  The two appraiser referees visited the property and heard the parties argue the merits of their respective proposals. 

The referees adopted none of the recommendations of the parties, and they submitted their partition to the court in a report signed only by the two appraiser referees.  Appellant moved to dismiss the report because all three referees had not signed it.  All referees then resubmitted the report with a cover letter stating that all three adopted it, and appellant withdrew his motion. The district court confirmed the report and ordered partition of the property as the referees proposed.  This appeal follows.

 

D E C I S I O N

 

            Partition proceedings are statutory actions and are "governed by the rules of pleading, practice, and evidence applicable to an ordinary civil action."  Swogger v. Taylor,243 Minn. 458, 464, 68 N.W.2d 376, 382 (1955).  In a partition action, an application to set aside a referee's report is "usually considered as analogous to a motion for a new trial."  Robbins v. Hobart,133 Minn. 49, 51, 157 N.W. 908, 909 (1916).  Here, appellant did not request a new trial and withdrew his motion to set aside the referees' report.  Under the standard that the supreme court recently established in Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003), our review of "procedural, evidentiary, and jury instruction issues" is limited to whether the evidence supports the findings and whether the findings support the conclusions and judgment.  But we review de novo "substantive questions of law."  Id.

1.            Referees' report

Appellant argues that the district court erred by adopting the referees' report.  He contends that the report is deficient because (1) it does not sufficiently consider his security in that ingress and egress to the property do not adequately insulate him from encountering his brothers; (2) all three referees did not visit the property; (3) the report was not based on a survey of the proposed partition; and (4) only two referees signed the report.

Appellant cites no authority for his contention that the district court was required to reject the report on any of these grounds, and this court will not consider assignments of error based on mere assertion and unsupported by argument or authority.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  The referees' duties are described in Minn. Stat. § 558.06 (2002).  The statute does not require three referees, or in fact any of the referees, to visit the property.  Nor does it require a referee's report to be based on a survey of the proposed partition, stating instead only that referees "may employ a surveyor."  Id.; see also Minn. Stat. 645.44, subd. 15 (2002) (providing that "may" is permissive). 

Further, the signatures on the report of only two of the three referees are sufficient under Minn. Stat. § 645.08(4) (2002), which provides that statutes conferring "joint authority" on three or more public officers or other persons must be construed to confer authority "upon a majority of such officers or persons."  And we note that a case cited by appellant stands for the proposition that a report agreed to by two of three referees is adequate.  See Robbins,133 Minn. at 51, 157 N.W. at 909 (applying statutory predecessor of Minn. Stat. § 645.08 to reject argument that referee's report could not be given effect because it was not unanimous).  We conclude, therefore, that the district court did not err by adopting the referees' report.

2.            Ex Parte communication

Appellant also argues that the district court engaged in an ex parte communication with a Gould brother who is not a party here but who is adverse to appellant in other litigation.  "An ex parte communication is a communication about a case which an adversary makes to the decisionmaker without notice to an affected party."  D'Aquisto v. Washington,640 F. Supp. 594, 621 (N.D. Ill. 1986); see Black's Law Dictionary 597 (7th ed. 1999) (defining an ex parte communication as a "prohibited communication between counsel and the court when opposing counsel is not present").  Here, appellant points to a letter to the district court from Joseph Gould, who owns property adjacent to the property at issue here, with a cover letter to the court from Gould's attorney, who is not counsel to any party in this litigation.  We conclude that appellant has not established that there was an ex parte communication here, and, even if there was, appellant has demonstrated no prejudice. 

3.            Real-estate taxes

Appellant also argues that the district court erred by refusing to order that he be reimbursed for his alleged overpayment of real-estate taxes on the parties' property.  He argues that the district court should have ordered that he be reimbursed for his overpayment of taxes.  In partitioning property, the district court is required to "determine the rights and interests of all parties [including] * * * taxes paid."  Kauffman v. Eckhardt,195 Minn. 569, 572, 263 N.W. 610, 611 (1935).  

The district court found that

the parties have each paid part of the real estate taxes since they acquired title; that the exact amounts paid by each and the exact amounts attributable to land and to buildings cannot be ascertained due to a deficiency in the records in the courthouse and those presented by parties.

 

On appeal, a district court's findings of fact are given great deference and will not be set aside unless clearly erroneous; if there is reasonable evidence to support the district court's findings of fact, this court will not disturb those findings.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

Here, the evidence regarding tax payments and whether appellant is entitled to reimbursement for overpayment either is absent from the record altogether or is in conflict.  It is not the province of this court to speculate about missing evidence or to reconcile conflicting evidence.  Morlock v. St. Paul Guardian Ins. Co.,650 N.W.2d 154, 162 (Minn. 2002) (speculation); Fletcher v. St. Paul Pioneer Press,589 N.W.2d 96, 101 (Minn. 1999) (conflicting evidence).  We conclude that the district court's finding regarding the state of records regarding real-estate tax payments is not erroneous and that the court did not, therefore, err by refusing to order that appellant be reimbursed.

            Affirmed.