Anderson v. Wright

• Docket Number: 22-0382
• Decision Date: 15 September 2023
• Parties: Sharon C. Anderson, Plaintiff Below, Petitioner v. Judy Wright and Michael Crites, Defendants Below, Respondents
• Court: West Virginia Supreme Court

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Sharon C. Anderson, Plaintiff Below, Petitioner v. Judy Wright and Michael Crites, Defendants Below, Respondents

No. 22-0382

Supreme Court of Appeals of West Virginia

September 15, 2023

(Wood County 18-C-220)

MEMORANDUM DECISION

Petitioner Sharon C. Anderson appeals the order of the Circuit Court of Wood County, entered on April 19, 2022, approving the judicial sale of real property and the distribution of the net proceeds to the parties.^[1] Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.

The parties each owned a one-third undivided interest in the real property located at 683 Wayside Farm Road in Parkersburg West Virginia. The parties' ownership of the real property was subject to the interest of a life tenant who lived in the residence. After the life tenant's death the parties disputed the real property's maintenance and upkeep. Accordingly, petitioner filed a complaint in the circuit court asking for a partition of the real property.

Following a bench trial, the circuit court, by amended order entered on October 8, 2021, found that the real property was not susceptible to a partition in kind and that none of the parties were willing to purchase the real property through allotment. Accordingly, the circuit court determined that the real property should be sold with the net proceeds distributed to the parties. In making this determination, the circuit court found that "there exists a great deal of animosity between [Respondent] Wright and [petitioner] and to a lesser extent between [Respondent] Crites and [petitioner]."

The circuit court appointed a special commissioner ^[2] and provided that the special commissioner could attempt to sell the real property in a private sale before proceeding with an auction of the property. Therefore, by order entered on November 19, 2021, the circuit court authorized the special commissioner to list the real property with a realtor. The realtor subsequently received a written bid of $70,000 for the real property, and the special commissioner accepted it as the high bid.

At the March 31, 2022, confirmation hearing, the special commissioner informed the circuit court that the $70,000 bid was a commercially reasonable offer given the real property's appraised value of $80,000. However, the special commissioner noted that, shortly after he accepted the $70,000 offer as the high bid, "I received a report and I don't know whether [petitioner] called or how I found out, but someone said there was a higher offer that would be made." As the special commissioner told the bidder who made the $70,000 offer, any sale would not become final until it was confirmed by the circuit court. Rather, the circuit court could reopen the bidding in effort to obtain the highest bid possible for the real property. Accordingly, the circuit court heard testimony from two witnesses presented by petitioner as to whether she made an upset bid for the real property in the amount of $72,500.^[3] When the realtor was called as a witness, she testified that, while she received oral bids for the real property, the special commissioner accepted only those bids made in writing. The realtor further testified that she did not recall any bid being made by petitioner but that "somebody from the family" called her and offered to buy the property for $72,500. Petitioner's next witness was her husband. Petitioner's husband testified that he offered $72,500 for the real property but did not "make a written offer." Rather, petitioner's husband "made a phone call" to the realtor who informed him that the bidding process was closed.

Although petitioner also called Respondent Wright as a witness, Respondent Wright testified that she did not believe that the additional $2,500 petitioner was offering for the real property constituted a sufficient increase in the price to justify a reopening of the bidding process. Respondent Crites did not testify, but expressed in argument his satisfaction with the $70,000 bid accepted by the special commissioner. Thus, the circuit court (1) found that petitioner "never made a written offer" and (2) approved the sale of the real property for the $70,000 bid accepted by the special commissioner as commercially reasonable. Petitioner moved the circuit court to stay the real property's sale during the pendency of any appeal, which motion the court denied. Therefore, the circuit court, by order entered on April 19, 2022, directed the special commissioner to sell the real property and distribute the net proceeds to the parties.^[4]

Petitioner appeals the circuit court's April 19, 2022, order rejecting her upset bid and approving the sale of the real property for $70,000. Regarding upset bids, we have held:

1. Prior to confirmation, the decision whether to set aside a judicial sale and accept an upset bid is within the sound discretion of the circuit court.

2. "'Whether a sale of land shall be confirmed or the property again offered for sale, upon the filing of an upset bid, depends upon circumstances of the particular case, and the action of the trial court thereon will not be disturbed on appeal unless plainly wrong.' Syllabus Point 2, State v. Hatfield, 136 W.Va. 342, 67 S.E.2d 529 (1951)." Syllabus Point 1, Old Nat'l Bank of Martinsburg v. Hendricks, 181 W.Va. 537, 383 S.E.2d 502 (1989).

Syl. Pts. 1 & 2, Smith v. Rusmisell, 205 W.Va 261, 517 S.E.2d 494 (1999); see also Syl. Pt. 7, in part, Eakin v. Eakin, 83 W.Va. 512, 98 S.E. 608 (1919) ...