THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Rachel Hall, Respondent,
Angel Rodriquez, Appellant.
Appeal From Richland County
Joseph M. Strickland, Master-In-Equity
Unpublished Opinion No. 2009-UP-564
Submitted May 1, 2009 – Filed November 30, 2009
AFFIRMED AS MODIFIED
James Richardson, Jr. and Steven Anderson, both of Columbia, for Appellant.
William Booth, III, of West Columbia, for Respondent.
PER CURIAM: This is an appeal in a partition action. Angel Rodriquez appeals (1) the refusal by the master-in-equity to charge Rachel Hall with the value of her use and occupation of the property after the parties became estranged, (2) the master's finding that certain improvements to the property increased the value by $30,000.00., and (3) the award of attorney's fees and costs of $5,624.38 to Hall in the form of a personal judgment. We affirm as modified.
FACTS AND PROCEDURAL HISTORY
In 2006 Hall and Rodriquez became engaged and purchased a single-family residential home located in Blythewood, South Carolina, for $485,000.00. The parties shared equally the costs to acquire the home and financed the balance of the purchase with a note and mortgage. Both Hall and Rodriquez brought furniture and other belongings from their former homes. They moved into the house shortly after the closing.
Although the property was deeded to Hall and Rodriquez as tenants-in-common, Rodriquez continued to rent an apartment in Charlotte, where he was working as a computer engineer. During the work week, Rodriquez stayed in his Charlotte apartment.
The parties hired a contractor to build three rooms in the unfinished basement of the house. This work, which was almost completed at the time of trial, added about 1,418 square feet of finished space to the residence.
Hall later discovered evidence leading her to believe Rodriquez had been unfaithful to her. Based on this information, Hall changed the locks and security code. When Rodriquez unexpectedly arrived at the residence late one evening and became disruptive upon discovering he could not enter the house, Hall became frightened and called the police.
The parties attempted to reconcile, and Rodriquez was later given a key; however, he did not return to live in the residence except to stay there for four days during the holidays. During her testimony, Hall maintained she allowed Rodriquez to retrieve various belongings whenever he requested. In March 2007, without notifying Rodriquez, Hall removed most of Rodriquez's remaining belongings and placed them in storage.
After Rodriquez moved out, Hall commenced this action, seeking partition of the subject property. Specifically, Hall requested (1) a partition of the property by judicial sale, (2) attorney's fees and costs, (3) reimbursement for improvements, and (4) reimbursement for mortgage payments, taxes, and upkeep. In his answer and counterclaim, Rodriquez agreed to a partition of the property but not to a judicial sale. By way of counterclaim, he requested that the property be sold on the market and also alleged Hall's actions in excluding him from the property constituted ouster and entitled him to damages.
The matter was referred to the Richland County Master-in-Equity. After hearing the matter, the master issued a final order granting Hall's request for partition by judicial sale. Disbursements to Hall and Rodriquez were to be made in proportion to the mortgage payments each party made on the home; however, the distribution to Rodriquez was subject to the availability of funds from the successful bid. The master also found the improvements to the basement had increased the value of the property by $30,000.00 and adjusted the distribution to each party to reflect his or her respective contribution to the cost of this improvement. In addition, the master awarded Hall her full attorney's fee of $5,411.00 plus costs of $213.38, finding "any legal fees incurred by [Hall] have accrued based solely on the actions of Rodriquez." The master awarded these amounts as a judgment against Rodriquez, providing (1) they would be deducted to the extent there were funds due him from the sale, and (2) any amount still owing would be reduced to a judgment against him.
Following an unsuccessful motion to alter or amend the master's order, Rodriquez filed this appeal.
The master's sale took place while this appeal was pending. Hall was the highest bidder and the bid amount was $150,000.00. Pursuant to the terms of the sale, the master signed and filed an order for disbursements directing Hall to pay Rodriquez $35,176.15, which represented his net share of the sales proceeds.
I. Should the master have offset Hall's recovery for mortgage payments, improvements, and other expenses by the rental value of the property during the time she occupied the home after the parties separated?
II. Did the master err in valuing the improvements to the home?
III. Did the master abuse his discretion in the award of attorney's fees and costs?
STANDARD OF REVIEW
A partition action is an equitable matter; therefore, this Court "has jurisdiction to reach its own conclusion as to the preponderance of the evidence." Ackerman v. Heard, 287 S.C. 626, 628, 640 S.E.2d 560, 562 (Ct. App. 1986). This broad scope of review applicable to appeals in equity actions, however, "does not require an appellate court to disregard the findings below or ignore the fact that the trial judge is in the better position to assess the credibility of the witnesses." Pinckney v. Warren, 344 S.C. 382, 387, 544 S.E.2d 620, 623 (2001).
Rodriquez first argues Hall's decision to seek contribution from him for expenses associated with preserving and maintaining the property after their separation subjected her, as the cotenant in possession, to an offset for the value of her use and occupation of the property. We disagree.
We first address Hall's contention that Rodriquez failed to preserve this issue for appeal because he did not argue at trial that exclusive use could be established without proof of ouster and never presented any credible evidence as to the applicable rental value. In his responsive pleadings, Rodriquez specifically denied Hall was entitled to reimbursement for any mortgage payments she made because she had had sole use, possession, and occupancy of the home since they separated and further asserted any mortgage payments Hall had made constituted "the fair market value of the property." These averments precede Rodriquez's counterclaim for ouster damages, which was set forth in a separate defense and counterclaim. When the master failed to address Rodriquez's allegation that Hall's sole use, possession, and occupancy of the property precluded her from further recovery, Rodriquez raised this issue in his motion to alter or amend. Finally, contrary to Hall's assertion in her brief that Rodriquez failed to present evidence of the fair market rental value of the home, Rodriquez testified that he had researched rental rates in the neighborhood and stated what he believed was a fair rental value based on his research. We therefore hold Rodriquez has preserved this issue for appeal.
The rationale for Rodriquez's argument that he was entitled to an offset for Hall's use and occupation of the home was that he did not have to prove ouster as "a necessary predicate for offsetting the contribution claim of a cotenant in possession with the rental value of her use and occupation." The law, however, states otherwise. See Watson v. Little, 224 S.C. 359, 364, 79 S.E.2d 384, 387 (1953) (noting the principle that possession by one cotenant is the possession of all ceases "when the exclusive possession of a cotenant becomes adverse to the right of possession by the other cotenant or cotenants; but the hostile character of the possession must be such as to amount to an ouster . . . and must be clearly and unmistakably established by the evidence"); 20 Am. Jur. 2d Cotenancy and Joint Ownership, § 41, at 172 (2005) ("Until an actual ouster is shown, the possession of the common property by one cotenant is prima facie, or presumptively, the possession of all.").
We agree with Hall that Rodriquez did not meet his burden of showing she denied him access to the home for any significant period of time after their separation. To the contrary, Rodriquez was given a key after the locks were changed, periodically went to the home after the parties separated, and was permitted to leave his belongings in the home even after it appeared the parties would not ever reconcile. See Laughon v. O'Braitis, 360 S.C. 520, 526, 602 S.E.2d 108, 111 (Ct. App. 2004) (affirming a finding that ouster by a co-tenant was not shown because, among other factors, the appellant was not denied access to the property).
Rodriquez next challenges the master's finding that the increase in value of the home attributable to the partially finished condition of the 1,418-square-foot basement in the home was $30,000.00. He contends that according to the evidence, which included the testimony of a real estate appraiser who appraised the property before and after the improvement, the increase in value was at most $21,270.00. The appraisals themselves, however, show the value of the property increased from $485,000.00 to $515,000.00 during the sixteen months that elapsed between the initial appraisal in April 2006, before the work on the basement began, and the second appraisal in August 2007, after the work was done. Furthermore, Rodriquez never attempted to cross-examine the appraiser about the possibility that factors such as market fluctuation could have contributed to the increase in value of the property during this time. We therefore hold the master's finding that the partial finishing of the basement increased the value of the property by $30,000.00 was supported by the evidence.
Nevertheless, it is apparent from the master's order that although the adjustments in the distributions to the parties were intended to account for the difference in their respective contributions to the basement work, the calculations resulted in overcompensating Hall. The master attributed to each party the value of the appreciation in an amount proportional to that party's contribution to the total cost of the work. As noted by the master, Hall contributed $10,894.86 to the work and Rodriquez contributed $6,000.00; therefore, together the parties spent $16,894.86, with Hall's contribution amounting to 64.486 percent of the total cost and Rodriquez's contribution representing 35.514 percent. The proportional increase in value of the property attributable to Hall's contribution was $19,345.87; likewise, the portion attributable to Rodriquez's contribution was $10,654.13. The difference, then, between the parties' respective contributions to the total increase in value was $8,691.74. The master then subtracted this amount from Rodriquez's distribution and added the same amount to Hall's distribution. Subtracting the entire difference from Rodriquez's distribution and adding it to Hall's distribution, however, would result in Rodriquez's contribution being increased to what Hall's contribution was before the offset and vice versa, rather than what was the desired effect of making their contributions equal. To achieve the latter result, the offset should have been only half of the difference, or $4,345.87. We therefore modify the disbursements calculated by the master so that the line item entitled "Adjustment to total to each" shows an upward adjustment of $4,345.87 for Hall and a downward adjustment in the same amount for Rodriquez. Cf. Marichris, LLC v. Derrick, 384 S.C. 345, 355, 682 S.E.2d 301, 306 (Ct. App. 2009) (ordering a deduction from the common fund in a partition action to effectuate the master's intention of making the parties equally responsible for certain payments); Holroyd v. Requa, 361 S.C. 43, 60, 603 S.E.2d 417, 426 (Ct. App. 2004) ("Our courts have corrected scriveners' errors when warranted."); 5 Am. Jur. 2d Appellate Review § 785, at 524 (2007) (noting an appellate court may correct clerical errors and observing that "[t]he correction of an obvious mathematical error is not barred by the law of the case doctrine on a subsequent appeal").
Finally, Rodriquez takes issue with the master's decision to require him to pay all of Hall's attorney's fees and costs, contending he had agreed to a partition and the only work done by Hall's attorney in support of the common goal of the parties was the drafting of the complaint. He further argues the master abused his discretion in providing that any fees and costs that could not be satisfied from his share of the sales proceeds would be reduced to a personal judgment against him. We hold the circumstances of this case warrant modifying the provisions in the appealed order regarding attorney's fees and costs.
In a partition action, "[t]he court of common pleas may fix attorneys' fees in all partition proceedings and, as may be equitable, assess such fees against any or all of the parties in interest." S.C. Code Ann. § 15-61-110 (2005) (emphasis added). Awards of attorney's fees in partition actions are generally discretionary. S&W Corp. of Inman v. Wells, 283 S.C. 218, 220, 321 S.E.2d 183, 185 (Ct. App. 1984). Nevertheless, the South Carolina Supreme Court has stated: "We think the dictates of [section 15-61-110], that equitable principles govern the assessment of attorneys' fees, would justify the award of such fees where the attorneys' services inure to the common benefit of the parties in interest." Briggs v. Jackson, 275 S.C. 523, 527, 273 S.E.2d 532, 535 (1981). Furthermore, although section 15-61-110 does not expressly prohibit awarding attorney's fees in the form of a judgment against a party, the supreme court has recognized "the authority of the court to order the payment of the fee, through the sale of a portion of the common property involved" as "implicit under the statute." Id. at 528, 273 S.E.2d at 535; see also Rule 71(d)(3), SCRCP ("Attorneys fees and costs may be awarded the attorney for any party(s) from any common fund generated by the partition to the extent that attorney's efforts benefited all parties; otherwise, his fee shall be paid by the party(s) he represents or from the party(s) share(s) only.").
Rodriquez did not oppose the partition action and objected only to a judicial sale. Although Hall prevailed in her request for a partition by judicial sale, much of the work performed by her attorney was adversarial in nature. Nevertheless, this work ultimately brought the matter to a resolution and benefited both parties; therefore, a reasonable compromise would be to modify the appealed order to provide that Hall's attorney's fees and costs be assessed equally against both parties. Accordingly, we modify the master's order to require Rodriquez to pay only half of Hall's attorney's fees and costs instead of the entire amount.
It is evident from the master's order for disbursements that even without the modifications ordered by this Court, there were no fees and costs that could not be paid from Rodriquez's share of the sales proceeds; therefore, we decline to address Rodriquez's argument on this issue. See Cox v. Cox, 290 S.C. 245, 248, 349 S.E.2d 92, 94 (Ct. App. 1986) (indicating an appellant must demonstrate reversible error, which includes a showing that the alleged error was prejudicial).
We reject Rodriquez's argument that he was entitled to an offset for Hall's occupation of the home after the parties separated. Although we uphold the master's determination that the partial finishing of the basement increased the value of the property by $30,000.00, we modify the adjustments in the master's disbursements to achieve the intended result of making their contributions to this increase equal. Finally, we modify the order to provide that Hall's attorney's fees and costs be assessed equally against both parties.
AFFIRMED AS MODIFIED.
HEARN, C.J., THOMAS and KONDUROS, JJ., concur.
 We decide this case without oral argument pursuant to Rule 215, SCACR.
 The master ordered the distribution to Rodriquez to be reduced by $8,691.74 and the distribution to Hall increased by the same amount.
 The successful bidder at the judicial sale was also required to pay off the outstanding mortgage balance.