Charles F. Printz, Jr.
Bowles, Rice, McDavid, Graff & Love
Charleston, West Virginia
Counsel for Appellees Aurelio Benavides
and Cindy E. Benavides
James I. Manion
Jackson & Kelly
Martinsburg, West Virginia
Counsel for Appellees Shenandoah Federal
Savings Bank and Guy R. Athey, Jr.
Sally G. Jackson
Crawford & Jackson
Charles Town, West Virginia
Counsel for Appellant
This Opinion was delivered Per Curiam.
SYLLABUS BY THE COURT
1. "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." Syl. Pt. 2, State v. Hatfield, 136 W. Va. 342, 67 S.E.2d
2. "'A sale of real estate by a trustee will not be set aside
upon the ground of inadequacy of price unless such inadequacy is so
great as to shock the conscience of the chancellor. . . .'
Syllabus point 9, in part, Pence v. Jamison, 80 W. Va. 761, 94 S.E.
383 (1917). Syllabus point 3, in part, Rife v. Woolfolk,  W.
Va. , 289 S.E.2d 220 (1982)." Syllabus, Tudor v. Tudor, 171
W. Va. 135, 298 S.E.2d 108 (1982).
This is an appeal by Luz Dolly Benavides from a September 23,
1991, order of the Circuit Court of Berkeley County ruling that a
$65,000 sale price on the marital home owned by the Appellant and
her former husband was not so grossly inadequate as to shock the
conscience of the Court. The Appellant has requested this Court to
order that the property be sold for the Appellant's upset bid of
$75,000 or be resold at a public sale. We find that the lower
court committed no reversible error and affirm.
Married in Bogota, Columbia, on August 13, 1969, the Appellant
and her former husband, Aurelio Benavides, were divorced on July
15, 1980.See footnote 1 The Appellant was granted custody of the parties' two
children, Ivan, born October 7, 1971, and Diego, born July 9, 1973.
Aurelio Benavides, a neurologist, was ordered to pay alimony and
child support. The residence in question, purchased in 1976 for
$60,000, was to be occupied by the Appellant during the infancy of
the children or until the Appellant remarried.
The Appellant has not remarried, has continued to reside in the marital home, and has made all mortgage payments on the home.
The older child continues to reside with his mother and attends
Shepherd College in Shepherdstown, West Virginia. By order dated
August 15, 1989, custody of the younger child was transferred to
Dr. Benavides. Although the parties apparently agreed to list the
property through a realtor, they were unsuccessful, and the listing
expired on May 9, 1990. On December 7, 1990, Dr. Benavides
initiated a partition suit to compel the sale of the former marital
residence. The Appellant joined in that action and agreed to the
public sale held on June 21, 1991. The Appellant and her counsel
were present at the sale, yet no bid was made by the Appellant at
that time. Dr. Benavides, through an agent, submitted the highest
bid of $65,000, and the property was sold to him for that price.
On September 4, 1991, prior to the lower court's approval of the
sale, the Appellant submitted an upset bid of $75,000. On
September 23, 1991, the lower court confirmed the sale to Dr.
Benavides for $65,000 and found that the $65,000 sale price was not
The Appellant contends that acceptance of $65,000 bid was
inappropriate and shocking to the conscience where the home had
been appraised for 136,500 and had been the subject of a real
estate contract for $138,000 as recently as January 22, 1990.See footnote 2
We have adopted the principle that a judicial sale will not be
set aside for mere inadequacy of price unless that inadequacy is so
great as to shock the conscience of the court or to raise a
presumption of fraud. Koay v. Koay, 178 W. Va. 280, 283, 359
S.E.2d 113, 116 (1987). We explained the following in Koay:
A partition sale is a forced sale, and
for that reason courts have been hesitant to
find that a bid substantially below an
appraised value or an arm's length transaction
value is so grossly inadequate to shock the
conscience. Bids often amounting to only 50%
or less of the appraised or arm's length value
have been upheld.
Furthermore, we have held that where a public sale was fairly
conducted, "the matter of receiving upset bids has always been left
to the discretion of the trial court, the discretion being
reviewable, and the rule favors the receiving of such bids upon
reasonable showing that the original sale price was inadequate."
State v. Hatfield, 136 W. Va. 342, 346, 67 S.E.2d 529, 531 (1951);
see also Old Nat'l Bank of Martinsburg v. Hendricks, 181 W. Va.
537, 383 S.E.2d 502 (1989); State v. Murphy, 109 W. Va. 102, 153
S.E. 149 (1930). As we explained in syllabus point 2 of Hatfield,
"[w]hether 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." We further explained in Hatfield that "[t]here is no
authority, however, and in reason should be none, requiring a
reopening of the bidding merely upon the receipt of an upset bid of
ten per cent above the previous purchase price." 136 W. Va. at
346, 67 S.E.2d at 531.
In Hatfield, as in the present case, the individuals placing
the upset bid had been present at the sale but had failed to bid
during the sale. Id. at 347, 67 S.E.2d at 532. The contention was
made in Hatfield that the upset bid should have been refused based
upon the presence of those individuals at the sale and their
failure to bid. While we found little merit to that contention, we
explained the following:
The trial court should, of course, exercise
extreme caution in considering upset bids
received from persons who were present and
participated in the bidding at the previous
sale, with a view toward preventing any abuse
of the practice of receiving upset bids, or in
any way delaying the progress of the
We also addressed the issue of the court's discretion in
deciding to confirm a sale or accept an upset bid. We explained in
Hatfield that a bid does not become a binding contract until it is
confirmed by the court. Until such confirmation, the right of the
purchaser is inchoate, and the bid is subject to rejection.
That is the stage at which the court may open
anew the bidding upon an advanced offer,
substantial and made in good faith. But even
at this stage it is always discretionary with
a court whether it will confirm a sale, though
made and complied with in all respects as
required by its decree, or set it aside and
direct a resale. Whether a court will confirm
must depend in great measure on the
circumstances in each case. . . .
Hatfield, 136 W. Va. at 348, 67 S.E.2d at 532.
In Hendricks, we addressed an upset bid filed subsequent to
the initial bid at a judicial sale for a farm owned by an
incompetent person. We reiterated our holding in Hatfield and
explained that upset bids may be refused in the sound discretion of
the trial court. Hendricks, 181 W. Va. at 347, 383 S.E.2d at 507.
In Hendricks, the lower court had had refused to consider the upset
bid of a potential purchaser who was present at a hearing at which
the court fixed the terms of a sale to another individual. Id.
Although the Appellant in the present case concedes that the
judicial sale was properly conducted, she asserts that the $65,000
bid was so grossly inadequate that the sale should be vacated. The
$65,000 bid by the Appellees at the sale represents 48% of the
alleged $136,500 valuation of the home. As we referenced above,
judicial sales at 50% or less of the actual or appraised value have
been upheld. Koay, 178 W. Va. at 283, 359 S.E.2d at 116. Other
jurisdictions have adopted a similar approach to this issue. In
Martin v. Martin, 415 So.2d 1120 (Ala. Civ. App. 1982), for
instance, a partition sale of a marital home was confirmed even
though the wife's bid of $15,600 was only 48% of a previous
purchase price of $32,500. In Dougherty v. McKeever, 502 S.W.2d
430 (Mo. App. 1973), a $5,000 bid was upheld despite the home's
alleged worth of $15,000 to $20,000. The Dougherty court explained
the relationship between the bid price and the alleged value did
not demonstrate "a shocking inadequacy of price." Id. at 432.
This Court ordered rejection of a bid in Tudor v. Tudor, 171
W. Va. 135, 298 S.E.2d 108 (1982), where a successful bid
represented less than 15% of the appraised value of the property.
In the syllabus of Tudor, we explained as follows:
"A sale of real estate by a trustee will
not be set aside upon the ground of inadequacy
of price unless such inadequacy is so great as
to shock the conscience of the chancellor
. . . ." Syllabus point 9, in part, Pence v. Jamison, 80 W. Va. 761, 94 S.E. 383 (1917). Syllabus point 3, in part, Rife v. Woolfolk,  W. Va. , 289 S.E.2d 220 (1982).
In discussing that general rule, we specified that the "rule applies with equal force to a hearing on the confirmation of a judicial sale." 171 W. Va. at 136 n.2, 298 S.E.2d at 109 n.2.
The Appellant's contention of inadequacy of the sale price is
slightly weakened by her failure to bid at the judicial sale
despite her presence there. The judicial sale was not forced upon
the Appellant; she agreed to it and was present with her counsel
during the sale. As we explained above, this Court has
consistently held that a lower court's decision regarding
confirmation of a sale upon the filing of an upset bid depends upon
the circumstances of each individual case and lower courts have
traditionally been afforded broad discretion in this determination.
We find that the lower court did not abuse its discretion in
determining that the $65,000 price was not shocking to the
conscience. The Appellant's upset bid of $75,000, representing
only a 15% increase over the $65,000 bid by the Appellees, was not
substantially greater than the Appellees' initial bid. That
recognition, coupled with the Appellant's inaction at the sale and
approximate two and one-half months delay in submitting an upset
bid only 15% higher than the original bid, clearly justified the
lower court's exercise of discretion to accept the original $65,000
bid. While the Appellant's failure to bid at the judicial sale
would not provide us with the sole basis for affirming this matter,
it is certainly an issue properly within the consideration of the
trial court. We conclude that the lower court committed no
reversible error in confirming the $65,000 sale price and in
rejecting the Appellant's upset bid. Accordingly, we affirm the
decision of the Circuit Court of Berkeley County.
Footnote: 1Appellee Aurelio Benavides has remarried, and his wife, Cindy E. Benavides, is also a party to this action.
Footnote: 2The $138,000 bid of January 22, 1990, had never been acted upon. It had been made contingent upon the potential purchasers' sale of their own home.