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FILED
Sep 21 2011, 8:29 am

FOR PUBLICATION
ATTORNEY FOR APPELLANT: WILLIAM C. MOYER Lorch & Naville, LLC New Albany, Indiana

of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLEE: ROBERT G. BOTTORFF II Applegate Fifer Pulliam LLC Jeffersonville, Indiana

IN THE COURT OF APPEALS OF INDIANA
GEORGE W. GILTNER, JR., Appellant-Defendant, vs. BETTY L. IVERS, MARTIN ZACHARIAS, JR., and BRADI L. ZACHARIAS, Appellees-Plaintiffs. ) ) ) ) ) ) ) ) ) )

No. 10A05-1010-PL-662

APPEAL FROM THE CLARK SUPERIOR COURT The Honorable Daniel F. Donahue, Senior Judge Cause No. 10D02-0906-PL-497

September 21, 2011

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary George W. Giltner owned an undivided twenty-percent interest in a 100-acre parcel of land in Clark County. Betty L. Ivers owned the other eighty percent, and is in the process of selling her interest to her granddaughter Bradi Zacharias and Bradi's husband, Martin. The Zachariases and Ivers filed a complaint to compel partition of the land.1 The trial court appointed three commissioners, who reported that Giltner should receive 16.5 acres in the southeast corner of the property. Giltner unsuccessfully moved to have the report set aside, and the trial court entered judgment in accordance with the division recommended in the report. On appeal, Giltner argues that the report should have been set aside because: (1) it made no finding as to whether division would materially damage a party; (2) it did not reveal the property's value or the methodology used to value the property; (3) the division was not proportionate to the parties' ownership interests, and no reason was given for the disproportionality; and (4) it was neither signed and sworn nor made in open court. Giltner did not raise the fourth issue until his motion to correct error; therefore, we conclude that he waived that issue. As to the remaining three issues, we conclude that Giltner has not shown that he was prejudiced; therefore, we affirm the judgment of the trial court.

Ivers was later dismissed by agreement of the parties. Although she does not participate in this appeal, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court is a party on appeal.

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Facts and Procedural History The 100-acre parcel of land is divided by Bethlehem-New Washington Road. The land to the east of the road is primarily open field suitable for farming. The land to the west of the road is primarily wooded. In a quiet title action, the Clark Superior Court determined that Giltner owned a twenty-percent interest in the property and that the estate of Fay Stout owned the other eighty percent. The estate's portion was conveyed to Ivers. The Zachariases were interested in building a home somewhere on the wooded portion of the property. Ivers agreed to sell them her share of the property, but they were unable to obtain a loan because of Giltner's interest in the property. The Zachariases and Giltner attempted to negotiate a division of the land, but negotiations were unsuccessful as both parties were primarily interested in the wooded portion of the land. Nevertheless, the Zachariases began making monthly payments to Ivers toward the purchase of the property. On June 8, 2009, Ivers and the Zachariases filed a complaint seeking partition of the land. Ivers was later dismissed by agreement of the parties. On January 13, 2010, the court appointed three commissioners to determine whether the property could be divided. On February 4, 2010, the Zachariases filed proposed instructions to the commissioners. A few days later, Giltner filed notice that he accepted the instructions proposed by the Zachariases. The instructions informed the commissioners that the court had "preliminarily determined the property should be partitioned" and that their job would be "to report to the court as to whether the Subject Property can be fairly physically divided as

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between the 20% interest holder and the 80% interest holders, and if so how the division should be made." Appellant's App. at 30. The commissioners were instructed to submit a written report, "which you must each attest to under oath." Id. at 31. The report "must first state whether the Subject Property may be divided between the parties without damage to either of the parties." Id. Regarding damage, the commissioners were instructed: The determination of whether either party is materially damaged by a particular division is left to your discretion, but must be guided by the value of the Subject Property. Thus, you should determine the value of the total Subject Property, then determine a division of the Subject Property so that both of the parties get their respective share of that value. This could result in either party being given a greater or lesser proportion of the Subject Property than their respective share of the Subject Property. Id. at 32. To determine the value of the property, the commissioners were instructed that they could consider the current use of the property as well as potential uses for the property. Finally, the commissioners were instructed to "maintain a file containing all information that supports the report you file in this case," which would be discoverable by the parties. Id. at 33. There is no indication in the record that either party requested that the commissioners consider that they both preferred the wooded land because of its aesthetic qualities. On April 21, 2010, the commissioners filed their report. The entire text of the report is as follows: In regards to the above mentioned property we have concluded the property can be physically divided between the 20 percent interest holder and 80 percent interest holder. The division would be as follows and shown on attached addendum: 20% Interest

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