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FOR PUBLICATION
ATTORNEY FOR APPELLANTS: ROBERT J. HARDY Auburn, Indiana ATTORNEY FOR APPELLEE: THOMPSON SMITH Auburn, Indiana

IN THE COURT OF APPEALS OF INDIANA
THOMAS KELLER and SHIRLEY ROHRS, Appellants-Defendants, vs. DANIEL KELLER, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 17A04-0705-CV-255

APPEAL FROM THE DEKALB CIRCUIT COURT The Honorable Kirk D. Carpenter , Judge Cause No. 17C01-0405-CC-029

DECEMBER 31, 2007 OPINION - FOR PUBLICATION HOFFMAN, Senior Judge

Defendants-Appellants Thomas Keller ("Tom") and Shirley Rohrs ("Shirley") appeal the trial court's order finding that the family farm ("the Farm") could not be partitioned and should be sold at a public auction. We affirm. Tom and Shirley raise one issue, which we restate as whether the trial court abused its discretion when it determined that the Farm should be sold at a public auction. Tom, Shirley, and Daniel Keller ("Dan") are siblings. Each owns an undivided one-third interest in the Farm as tenants in common. The Farm consists of approximately one hundred and sixty acres of land located in DeKalb County, Indiana. It is zoned CI-1 Open Industrial. Single-family residences are not permitted in this type of zoning district in DeKalb County. Because of a lack of cooperation in the ownership of the Farm, on May 20, 2004, Dan filed a complaint requesting that the trial court partition the farm, or, if that was not possible, that the Farm be sold and the proceeds divided between him, Tom, and Shirley. A bench trial was held on September 12, 2006. During the trial, Dan, Tom, and Shirley all stipulated that the Farm could not be divided without damage to them. Dan testified that he wanted the Farm to be sold at a public auction, as he believed this would maximize the value of the Farm. He noted that the Farm is located just east of a business called Steel Dynamics, Incorporated ("SDI"). In 1995, SDI made an offer to purchase the Farm. At that time, SDI was willing to pay $8,000 per acre. Dan stated that he had recently spoken with Mark Miller, SDI's vice president, about the property. Based on this, Dan believed that SDI was currently interested in purchasing the Farm.

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Tom and Shirley testified that they did not want the Farm sold at a public auction. The Farm is the family homestead of the Keller family. Shirley testified that the Farm has sentimental value to her, as it is where she was born and raised. Tom currently earns his living by farming the Farm along with certain other properties. Tom's home is located on land contiguous to the Farm. Shirley also owns land that is contiguous to the Farm where she would like to build a home. Shirley and Tom both testified that they want the Farm to remain in operation as a farm with Tom continuing to farm the land. Tom and Shirley introduced an appraisal into evidence that showed the Farm had a value of $648,000. Tom requested that the trial court allow him to buy Dan's interest in the Farm for one third of the appraised value, which would have been $216,000. The trial court, though, found this appraisal of minimal relevance because the Farm was zoned for industrial uses, but the appraisal was "based on the use of the land as a single family residence . . . ." Appellant's Appendix at 11.1 Tom also stated that he would not oppose the trial court ordering a new appraisal for the Farm, and that he would be willing to buy Dan's interest in the Farm for one third of the new appraised value. Tom testified that he could obtain the financing necessary to purchase Dan's interest in the Farm. The trial court issued its final order and judgment on October 26, 2006. The trial court made the following relevant findings and conclusions: 11. All of the parties agree that . . . the [Farm] is [not] physically divisible.

The trial court initially found that the appraisal introduced by Tom and Shirley was "not relevant . . . ." Id. at 11. Tom and Shirley filed a motion to correct errors that challenged this finding. The trial court partially granted the motion to correct errors, noting that it should have found the appraisal "minimally relevant . . . ." Id. at 17.

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*** 24. Indiana law permits the private sale of land subject to a partition action at IC 32-17-4-12. *** 26. Dan Keller is entitled to partition of the [Farm] subject to this cause of action. 27. As the Plaintiff, Dan Keller has the right to compel the sale of real estate held as tenants in common under IC 32-17-4-1 through 24. 28. The Court has the authority to order a public sale or a private sale of the real estate. *** 30. The [Farm] is zoned CI-1-Open Industrial, a zoning district in which single family residences are not permitted in accordance with the DeKalb County Zoning Ordinance. 31. The highest and best use of the [Farm] is Open Industrial. *** 34. Since the Court has determined that . . . the [Farm] . . . can[not] be physically divided without damage to the owners, the steps outlined in I.C.

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