Ira M. Haught
Joseph M. Brown
Harrisville, West Virginia Parkersburg, West Virginia
Attorney for the Petitioners Attorney for Respondents
Berry and Brown
The Opinion of the Court was delivered Per Curiam.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
1. In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means, such as direct appeal, to
obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous
as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or
manifests persistent disregard for either procedural or substantive law; and (5) whether the
lower tribunal's order raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although all five
factors need not be satisfied, it is clear that the third factor, the existence of clear error as
a matter of law, should be given substantial weight. Syllabus point 4, State ex rel.
Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
This proceeding involves a writ of prohibition under the original jurisdiction of the Court.See footnote 1 1 The case was filed by Harlan R. Bowser and Barbara A. Bowser, petitioners/defendants below (hereinafter referred to as the Bowsers).See footnote 2 2 The Bowsers seek to prohibit enforcement of an order entered by the Honorable George W. Hill, respondent, Judge of the Circuit Court of Wood County, requiring the public sale of property owned by the Bowsers and Mr. Jack L. Berry, respondent/plaintiff below (hereinafter referred to as Mr. Berry).See footnote 3 3 Based upon the parties' arguments in this proceeding and the pertinent authorities, the writ is denied.
On December 3, 1998, Mr. Berry filed an action seeking to have all of the
property sold at public auction, asserting that the property was not subject to equitable
partition and further claiming that the Bowsers would not sell their interest to him. The
Bowsers answered the complaint and filed a counterclaim seeking to have the land
The circuit court appointed three special land commissioners to determine
whether the property could be equitably partitioned. The land commissioners issued a
report indicating how the property could be equitably partitioned and valuing the property
at $358,000.00. The Bowsers objected to the report claiming that the partition was not
equitable and proposed selling the property at public auction. Mr. Berry accepted the
partition plan and offered to purchase the Bowsers' interest, but the Bowsers rejected Mr.
The Bowsers subsequently demanded that the property be allotted to them at
the value fixed by the land commissioners. However, the circuit court found that allotting
the property to the Bowsers would be prejudicial to Mr. Berry. Therefore, the circuit
court entered an order directing that the property be sold at public auction on February 15,
2001. As a result of the circuit court's ruling, the Bowsers filed this prohibition proceeding
seeking to stop the sale.
(Internal quotations omitted).
In reviewing the circuit court's order in this case, we have found that both
parties expressly agreed to the proposed sale. The circuit court's order stated:
Though each party is entitled to a partition in kind, the Defendants expressly waived that right and requested the property be sold at public sale. The Plaintiff also expressly waived the right of partition in kind and requested this Court to sell the entirety of the property at public sale.
The order acknowledged that the Bowsers subsequently recanted their approval of the sale. However, the circuit court found that each party had waived its right to allotment of the property.See footnote 8 8
This Court specifically held in Smith that it requires more than a mere offer
by one of the parties to buy out the other:
If, however, only one of the parties is willing to have the whole allotted to him, and the other parties are unwilling to take for their interests what such party is willing to pay therefor, then the court may either refer the matter to a commissioner to ascertain the fair value to be paid for said interests, or order the whole subject to be sold, as the one or the other course may seem to the court to be the most advisable, and promotive of the interests of all the parties in interest.[See footnote 9 9 ]
Smith, 180 W. Va. at 207-08, 376 S.E.2d at 101-02, quoting Corrothers, 32 W. Va. at 565, 9 S.E. at 890 (footnote added). The decision in Smith specifically recognizes that a trial court may order a public sale when a party objects to an allotment. Mr. Berry clearly established his unwillingness to have the property allotted to the Bowsers. Because of a lack of consensus on allotment, we find no basis to disturb the trial court's exercise of discretion in ordering the public sale of the property.
When partition cannot be conveniently made, the entire subject may be allotted to any party or parties who will accept it, and pay therefor to the other party or parties such sum of money as his or their interest therein may entitle him or them to; or in any case in which partition cannot be conveniently made, if the interests of one or more of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject . . . and the interest of the other person or persons so entitled will not be prejudiced thereby, the court . . . may order such sale . . . and make distribution of the proceeds of sale, according to the respective rights of those
W. Va. Code § 37-4-3 (1957) (Repl. Vol. 1997).
By virtue of W. Va. Code, 37-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that
the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale.