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05/24/96 BRENT SULLIVAN JERNIGAN v. CONWAY LEE

May 24, 1996

BRENT SULLIVAN JERNIGAN
v.
CONWAY LEE JERNIGAN



Appeal from Mobile Probate Court. (64,091. N.S.). Lionel W. Noonan, TRIAL JUDGE.

Released for Publication September 4, 1996.

Wright, Retired Appellate Judge. Robertson, P.j., and Yates and Crawley, JJ., concur.

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

This appeal concerns the assessment of attorney fees in an action for sale for division of real property. It is before us pursuant to § 12-2-7(6), Code 1975.

In March 1993 Conway Lee Jernigan (uncle), Brent Sullivan Jernigan, Judith Jernigan Freeman, and Carol Jernigan Ware (nephew and nieces) inherited two parcels of property as tenants in common, with the uncle inheriting an undivided 1/2 interest in the property. The property included a 100-foot frontage on Fowl River, worth approximately $100,000, and a farm parcel containing approximately 78 acres, worth approximately $195,000.

The uncle lived next door to the riverfront parcel and across the street from the farm parcel. He used the riverfront parcel as his side yard, and he stored things on the farm parcel. The property originally belonged to his mother and father, the paternal grandparents of the nephew and the nieces.

During the spring of 1993 the nephew and the nieces informed their uncle that they wanted to put both parcels of property on the market as soon as possible. The uncle replied that he did not want to put the property on the open market because he did not want certain individuals of particular races or nationalities living near him. Furthermore, the uncle wanted to insert restrictive covenants on the sale of the property. The uncle hired an attorney to start looking into that matter. The uncle also made an offer to the nephew and the nieces on the riverfront property.

Concluding that there was to be no reasonable negotiating with the uncle, the nephew and the nieces filed a complaint, requesting a sale for division, attorney fees, and expenses, according to

§ 34-3-60, Code 1975.

Initially, the uncle filed a responsive pleading, admitting that neither parcel could be equitably divided or partitioned. He denied that the nephew and the nieces were entitled to attorney fees and expenses. Two months later, the uncle admitted that the farm parcel could be equitably divided, but that the riverfront parcel could not. He requested a partition of the farm property. He again denied that the nephew and the nieces were entitled to any attorney fees or expenses.

Negotiations between the parties' attorneys began. The uncle's attorney finally negotiated a price for the uncle to purchase the riverfront property. The nephew and the nieces agreed to sell the riverfront property for $45,483.75, which represented their one-half interest, less 6.7% sales commission. No real estate commission was generated in the transaction because there was no real estate agent involved. The parties agreed that the issue of attorney fees and expenses on the riverfront property would be deferred until after the sale of the farm property.

Approximately 14 months later, a private offer was made to purchase the farm property for approximately $25,000 less than the appraised value. The offer of $171,000 included a provision that approximately 12 acres were to be purchased by the uncle. The uncle filed a motion to approve the offer to purchase. The nephew and the nieces objected to the offer. They requested that the court approve their counteroffer, which offered to sell the property for $180,500, with a substantially reduced sales commission. The court entered an order, based on a settlement agreement of the parties, that the farm property would be sold at the offered price, but the nephew and the nieces would receive $85,560 from the net sales proceeds, and the uncle would receive $77,440 from the net proceeds.

Shortly before closing the sale of the farm, the attorneys for both parties filed applications for attorney fees and costs, ...


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