The opinion
GALLAGHER, Associate Judge,
Retired, dissenting:
I am aware, of course, of the general rule . of law that an appraiser’s valuation binds the parties who agreed to his appointment. On the other hand, an exception to this rule is made where mistake or fraud is shown. Aitchison v. Anderson, 183 F.2d 922 (9th Cir. 1950). The majority opinion says, however, that “appellant made no argument and presented no facts which would indicate fraud or mistake.” It was the ruling of the trial court that since appellant selected the appraiser that ended the matter.
My view is that, on this record, appellant should have been given an opportunity to make an evidentiary showing that her evidence would establish an exception to the general rule on the binding effect of appraisals. Appellant asserted in her motion, with some documentary support, that the appraiser may well have had a conflict of interest. In addition, she submitted documentary support that the appraisal in question was strikingly low when compared to sales of similar houses in the neighborhood.
I think her showing was sufficient to warrant a hearing to determine whether the general rule on the binding effect of an appraisal controlled here or whether this case fell under an exception to that general rule.