Hollida v. Hollida

• Decision Date: 27 April 2004
• Docket Number: No. 25749.,No. 25921.,No. 25926.,25749.,25921.,25926.
• Citation: 131 S.W.3d 911
• Parties: Michelle Marie HOLLIDA, Appellant, v. Billy George HOLLIDA, Jr., Respondent, Rocking H. Ranch, Inc., a Missouri Corporation, Intervenor.
• Court: Missouri Court of Appeals

131 S.W.3d 911

Michelle Marie HOLLIDA, Appellant, v. Billy George HOLLIDA, Jr., Respondent, Rocking H. Ranch, Inc., a Missouri Corporation, Intervenor.

No. 25749.

No. 25921.

No. 25926.

Missouri Court of Appeals, Southern District, Division One.

April 27, 2004.

Mary L.D. Griffith & C.H. Parsons, Jr., Parsons and Wilson, P.C., Dexter, for Appellant.

Christina L. Kime & L. Dwayne Hackworth, Hackworth, Kime & Hackworth, Piedmont, for Respondent.

Before BARNEY, P.J., GARRISON, J. and RAHMEYER, C.J.

PER CURIAM.

Michelle Marie Hollida ("Appellant") and Billy George Hollida, Jr., ("Respondent") were once husband and wife. In the judgment dissolving their marriage, the trial court ordered, in relevant part, that ten acres of land—determined by the trial court to be marital property and upon which the parties' home, a barn, and roping arenas were located—be sold at public auction to the highest bidder. The trial court also ordered the Sheriff of Wayne County ("sheriff") to handle the sale and ordered the cost of publication be divided equally between the parties.

The trial court further ordered that from the proceeds of the sale there "shall first be paid the mortgage owed to U.S. Bank Corp Mortgage,"¹ together with real estate taxes through 2002 and, thereafter, there "shall be paid all fees and expenses due" the sheriff, together with attorneys fees incurred by the sheriff.

Lastly, the trial court ordered that "[a]fter all sale expenses are paid from the net sale proceeds, [Respondent] shall receive 60 percent of the proceeds and [Appellant] shall receive 40 percent" and that "[a]ny deficiency in sale proceeds over expenses shall be born in like manner."

On May 2, 2003, pursuant to the judgment of the trial court, the sheriff struck off and sold the foregoing property at public auction to the sole bidder, Rocking H. Ranch, Inc. ("Intervenor"), for the sum of $50,000.00.² The record shows Appellant and her attorney were in attendance. Neither Appellant nor her attorney asked questions or made any bids during the auction.

On May 16, 2003, the trial court entered a subsequent judgment approving the Sheriff's Report of Sale ("report of sale"). The judgment ordered the sheriff to pay from the proceeds of the sale all publication costs; sheriff's fees; attorneys fees and recording fees, prior to disbursing the balance of the proceeds to U.S. Bank Home Mortgage "to be credited against the outstanding mortgage owed on the real estate."

On May 28, 2003, Appellant filed a Motion to Set Aside Judgment and Order Approving Sheriff's Report of Sale of Real Estate and Sheriff's Deed, and to Set Aside the Sheriff's Deed ("Appellant's motion"). Appellant's motion maintained the report of sale was in error when it set out that the outstanding indebtedness owed against the real estate "exceeds the sale price, plus accrued interest on the mortgage owed to U.S. Bank Home Mortgage." Appellant's motion further asserted that the report of sale did not comply with the trial court's dissolution judgment; the published notice of sale; statements made to her and her attorney by the sheriff's attorney, Jon Kiser; and the sheriff's announcement at auction.³

Subsequent to a hearing on Appellant's motion, the trial court entered a judgment overruling and denying Appellant's motion, determining that the "Judgment and the Publication issued in accordance with same was clear and unequivocal and that the sale was appropriately handled by the Sheriff of Wayne County. Judgment final. Time is of the essence."⁴ Appellant now brings her appeal from this second judgment, raising four points of trial court error, discussed below.

"`A motion to set aside a judicial sale is addressed to the sound discretion of the trial court.'"⁵ Robert R. Wisdom Oil Co. v. Gatewood, 682 S.W.2d 882, 884 (Mo.App.1984) (quoting Dougherty v. McKeever, 502 S.W.2d 430, 431 (Mo.App.1973)). "The decisions of the trial court will not be set aside unless clearly erroneous." Dougherty, 502 S.W.2d at 431.

"In reviewing a court tried case, an appellate court must sustain the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law." Bultemeier v. Ridgway, 834 S.W.2d 896, 897 (Mo.App.1992); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Issues such as credibility of witnesses, weight of evidence, and resolution of conflicts in testimony are for the trial court to resolve and are not matters that appellate courts can review." Thomas v. Lloyd, 17 S.W.3d 177, 187 (Mo.App.2000). "A trial court is free to believe none, part, or all of a witness's testimony." Id. "A trial court may disbelieve testimony even when it is uncontradicted." Id.

As best we discern Appellant's first point, she complains the trial court erred in approving the sheriff's report of sale because, unlike the terms for the sale as set out in the dissolution judgment—which provided that only costs of publication would be paid prior to applying the sale proceeds to the mortgage debt—the sheriff first applied the expenses associated with the sale, with the remainder to the mortgage debt.⁶

In support of her point Appellant cites to Field v. Redfield, 985 S.W.2d 912, 919 (Mo.App.1999), for the proposition that when a judgment of the trial court distributing marital property becomes final, it may not be modified in the same case.⁷ She argues, then, that this re-allocation of expenses constituted an unauthorized modification of the trial court's dissolution judgment, which amounted to a substantial departure from the trial court's original dissolution judgment. We disagree.

"While the court has the power to order a sale of real estate to accomplish the division of property, no statute or rule prescribes the procedure to be followed." Swinford v. Swinford, 682 S.W.2d 189, 191 (Mo.App.1984). "[I]t has been held that, even in the absence of statute, the court may make a just allowance for time, labor, services, and expenses." 50A C.J.S. Judicial Sales § 13 (1997); see Gloyd v. Gloyd, 293 Mo. 163, 239 S.W. 73, 80 (1922).⁸ "[T]o render a sale void or voidable the irregularity must be such as to affect the sale to the prejudice of the parties." Koester v. Koester, 543 S.W.2d 51, 54 (Mo.App.1976).

Here, we fail to see how Appellant may have been prejudiced by any variance between the trial court's order of sale per its dissolution judgment and its order confirming the report of sale, as related to the payment of the sheriff's expenses and attorney fees. Appellant acknowledged at the motion hearing that there would be expenses relating to the judicial sale such as insurance, publication, recording fees, and taxes. Additionally, there is little question that under the dissolution judgment she was obligated to pay half of the publication fees. Also, in its dissolution judgment the trial court specifically set out that "[a]fter all sale expenses are paid from the net sale proceeds, [Respondent] shall receive 60 percent of the proceeds and [Appellant] shall receive 40 percent" and directed that "[a]ny deficiency in sale proceeds over expenses shall be born in like manner."

In short, even if all of the sale proceeds were applied to the mortgage debt, under the terms of the original dissolution judgment Appellant was still obligated to pay 40 percent of the expenses of the judicial sale, as well as 50 percent of the publication costs. The insubstantial changing of the order of distribution by the trial court did not prejudice Appellant. Id. Point denied.

In her second point, Appellant asserts the trial court erred in approving the report of sale because the accepted bid was grossly insufficient; Respondent's father had "chilled" the sale; and there was no common understanding by the parties as to the terms of the sale. Accordingly, she requests this Court to set aside the trial court's prior approval of the report of sale.

Appellant argues that the accepted bid of $50,000.00 for the ten acres and its buildings with a mortgage debt of $117,000.00 is grossly inadequate to compensate Appellant for property with a fair market value of $250,000.00.⁹

We initially observe that "mere inadequacy of consideration will not justify the setting aside of a judicial sale unless accompanied by some irregularity." Wisdom Oil, 682 S.W.2d at 885. Additionally, "an adequacy analysis in Missouri requires a determination of what the property would bring in a fair sheriff's sale." Yokley v. Wian, 877 S.W.2d 179, 182 (Mo.App.1994). "`Market value may be considered in determining the adequacy of the sale price but it is not the measure of adequacy. The test of adequacy in a judicial sale is the price received in comparison with what the property would bring in a fair sheriff's sale.'" Id. (quoting Koester, 543 S.W.2d at 55).

A fair sheriff's sale price would be a price within a range of prices a neutral person would be willing to pay, at a forced sale, for property conveyed, not by warranty deed, but rather by a sheriff's deed, subject to known and unknown encumbrances, assessments, and potential liens; with an uncertain quality or condition of any existing structures; with potential latent problems and unknown liabilities; considering the amount a person would need to invest in necessary repairs or clean-up; with risk of legal process and expense to secure possession or clear title; and with uncertainty of potential concealed environmental hazards.

Id. at 183.

"In short, the price at a fair sheriff's sale would be a price in the range a neutral outsider, under no constraint to buy, would reasonably be willing to risk paying at a forced sale conducted by open bidding." Id. "`Always to be considered is the underlying need for judicial sales to be final.'" Id. (quoting Wisdom Oil, 682 S.W.2d at 885). "`A sale at some point must be final and should not easily be reopened for higher bid.'" Wisdom Oil, 682 S.W.2d at 885 (quoting DiLeo v....