Opinion

Smith v. Rusmisell

  • 205 W. Va. 261
  • 517 S.E.2d 494
  • 1999 W. Va. LEXIS 89
Court
West Virginia Supreme Court
Filed
Jul 14, 1999
Status
Published
Author
Davis
On the bench
Davis, Maynard
Cited by
3 cases
Authority
More cited than 6.6%

directing the confirmation of a sale where the successful bid was 55% of fair market value

How later courts described this case

  • directing the confirmation of a sale where the successful bid was 55% of fair market value

Written by the judges who cited it.

The opinion

DAVIS, Justice,

dissenting:

(Filed July 20, 1999)

Judge Keadle did not abuse his discretion in ordering the property resold based upon a bid which was “grossly inadequate.” That has been our law for more than one hundred years. In Kable v. Mitchell, 9 W.Va. 492 (1876), overruled in part by Childs v. Hurd, 25 W.Va. 530 (1885), this Court stated:

The court may, in the exercise of a sound discretion, either affirm, or set aside, the sale, where from the facts, evidence, and circumstances before it, it appears clearly that the sale was made at a greatly inadequate price, and the court may solve the question upon affidavits, or depositions in connection with the fact that a greatly larger price is offered to the court for the land, and, secured or offered to be secured, or, it may set the sale aside upon any evidence, or fact, or facts before it, which clearly shows that the land sold at a greatly inadequate price.

Syl. pt. 3, 9 W.Va. 492 .

This Court held further in Kable that “[w]here the circuit court has disapproved, and set aside, sale made by its own commissioners, the Appellate Court should not disturb the action of the circuit court, unless, it plainly appears that there is error to the prejudice of the appellant.” Syl. pt. 8, id.

*268 In this case, Ross was not prejudiced by the judge’s decision. Ross merely made an offer to purchase the property subject to court approval. See State v. Hatfield, 136 W.Va. 342, 346 , 67 S.E.2d 529, 532 (1951). Ross’ bid represented less than fifty-six percent of the Holmes’ appraised value. The trial court, in exercising its discretion, considered the difference between Holmes’ appraisal and the high bid at the auction, which was $300,000.00. By any standard, a bid falling more than a quarter of a million dollars short of market value is grossly inadequate. Accepting such a bid would be an inequity to both Smith and Rusmisell.

It is within the sound discretion of the trial court to approve or reject a bid made at a judicial sale. There is sufficient independent’ evidence that the Ross bid was grossly inadequate. Judge Keadle did not abuse his discretion when he refused the Ross bid and ordered the property be re-offered for sale. Therefore, I respectfully, dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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