Unpublished Opinion No. 2004-UP-111
Submitted November 3, 2003 – Filed February 24, 2004

PER CURIAM: James Calvin Phillips, Sr. (Father), Rudelle C. Phillips (Mother), James Calvin Phillips, Jr. (James), Donna V. Phillips Cassidy (Donna) and Richard Allen Phillips (Richard) owned an undivided interest in a tract of land. Father, Mother, and James (collectively, “Respondents”) filed a complaint against Richard and Donna (collectively, “Appellants”) seeking the partition in-kind of the tract. A special referee filed both a Report and Decree of Partition of Real Estate and a supplemental order. Appellants now appeal, arguing the supplemental order was contrary to an agreement reached by the parties. We affirm.

Appellants and Respondents owned, as tenants in common, a 645-acre tract of land in Chesterfield County. Respondents, seeking a partition in-kind of the land, filed both a complaint and lis pendens in the circuit court. By consent of the parties, the action was referred to a special referee.

The special referee conducted two hearings. At the first hearing, the parties stipulated that Father and Mother were entitled to a combined sixty percent interest in the tract and each of the children was entitled to a ten percent interest. Father and James testified at the hearing that they were seeking a partition to allow James fifty acres in the northern corner of the property on which to build a poultry farm.

At the second hearing, the parties informed the special referee of their agreement that James receive the fifty acres for the poultry farm in the northern corner of the property. Counsel for Appellants informed the referee that as part of that agreement, Appellants would receive their joint portion of the land along the highway. Counsel for Respondents agreed that Appellants could get their portion in the southwestern corner of the tract, but he informed the special referee that the court would have to decide the dimensions of their portion, including how much road frontage the parties would receive.

Father testified several times that the special referee would have to determine the dimensions of Appellants’ joint tract. Appellants presented a proposed division that included mostly road frontage. They testified they wanted Father to have the rental properties in the southwestern corner and to be compensated with other land. Donna testified the special referee could determine the percentage of road frontage property she and Richard should receive. Richard also informed the referee that he “had no strong feelings” about the road frontage property, but he did not want the rental property. At the end of the hearing, counsel for Respondents excepted to Appellants receiving the majority of the road frontage property and requested that the referee give them a proportionate share of land fronting the highway.

The special referee subsequently entered a Report and Decree of Partition of Real Estate. In the order, the special referee outlined the parties’ agreements that Appellants would receive their undivided interest in the southwestern corner of the property, James would have the fifty acres for his poultry farm, and Father would receive any rental property and one acre surrounding it that may lie within Appellants’ portion. The special referee found Appellants should be allotted a 129-acre portion of land (twenty percent of the overall tract) in the southwest corner of the property in order to satisfy their interests. The referee explained the method to be employed in determining the dimensions of this tract and stated he would retain jurisdiction to “coordinate and effectuate the laying out of the portion allotted to [Appellants] and to enter such further order as will facilitate the conclusion of this matter.” [1]

Several months after the Report and Decree of Partition was entered, the special referee filed a supplemental order approving a surveyor’s plat of the 129-acre tract allotted to Appellants. The referee stated that, as a result of the allotment, Appellants received “ownership of a pro rata share of the whole acreage relative to both land and type, (e.g. road frontage, planted pines, pasture, bottom land, and river frontage).” Appellants subsequently filed a Rule 59(e), SCRCP, motion for reconsideration, arguing the division of land approved by the special referee was contrary to the parties’ agreement. The referee denied the motion, stating there was no evidence of such an agreement in the record.

“A partition action is an equitable action, heard by a judge alone and, as such, this Court on review may find facts in accordance with its view of the preponderance of the evidence.” Anderson v. Anderson, 299 S.C. 110, 113, 382 S.E.2d 897, 899 (1989). This scope of review does not require this Court to ignore the special referee’s findings when he was in a “better position to evaluate the credibility of the witnesses.” In re Thames, 344 S.C. 564, 571, 544 S.E.2d 854, 857 (Ct. App. 2001).

Appellants argue the special referee erred in issuing a supplemental order contrary to his prior order and contrary to the recognized agreement of the parties.

Initially, we note there is no evidence in the record of any kind of an agreement reached between the parties concerning the specific allocation of property to Appellants within the tract. While Appellants and Respondents appear to have reached a consensus that Appellants were to receive a 129-acre tract in the southwestern corner of the overall tract and that this tract should have a proportional amount of road frontage, there is neither testimony nor a written document memorializing a formal agreement that Appellants would only receive road frontage or that they would not receive river frontage. Agreements between counsel are not binding unless they are reduced to written form or “made in open court and noted upon the record.” Rule 43(k), SCRCP; see Young v. Cooler, 347 S.C. 362, 365, 555 S.E.2d 410, 412 (Ct. App. 2001) (holding it was error for the trial court to enforce an “agreement” where there was no evidence of a consent order, written stipulation, or agreement made in open court and noted on the record). Because there is no evidence of an agreement, the special referee’s supplemental order was not issued in violation of any agreement.

Further, there is nothing in the record indicating the special referee’s supplemental order violated the terms in the initial order. The initial order noted the parties agreed Appellants would receive 129 acres in the southwestern portion of the overall tract. The parties agreed the special referee would retain jurisdiction to lay out Appellants’ portion after consulting with a surveyor. In the supplemental order, the special referee specifically outlined Appellants’ portion pursuant to the surveyor’s plat. Accordingly, nothing in the record indicates the special referee’s supplemental order violated the terms of the original order.

Finally, the parties’ testimony does not indicate the special referee erred in partitioning the property. Respondents specifically stated they wanted the referee to establish the dimensions of Appellants’ tract in the southwestern corner of the property. Although Richard indicated he had no interest in farming the river-front property, Appellants testified they wanted the special referee to determine the location of their share of the property, to consider the inclusion of several rental properties on the tract, and to apportion road frontage proportional to their percentage ownership of the overall tract of land. Respondents agreed the special referee should make a determination regarding a proportional amount of road frontage.

The special referee fairly apportioned Appellants’ land consistent with the intent of both parties. We note that, in dividing the tract, the special referee took great pains to award Appellants a fair and pro rata share of all of the different types of land in the tract – including road frontage, planted pines, pasture, bottom land, and river frontage. Further, the evidence in the record indicates the parties’ only agreement was for the special referee to make the specific determination on the location of Appellants’ portion. Accordingly, the special referee’s supplemental order did not conflict with the original order. Based on the preponderance of the evidence before this Court, we find the special referee did not err in apportioning the tract or issuing his supplemental order. Anderson, 299 S.C. at 113, 382 S.E.2d at 899.

[1] In the Report and Decree of Partition, the special referee also noted the parties’ stipulated value of the entire tract and levied costs to be paid by the parties. These conclusions were not appealed by either party.